author: MOORE, Justice.

text:
    Mrs. Adelle HULLUM, Administratrix, et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
    No. 67.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 5, 1964.
    Rehearing Denied Dec. 3, 1964.

      George L. Schmidt, Schmidt & Garrett, Houston, McLendon & Tyner, Tyler, for appellants.
    Jack W. Flock, Ramey, Brelsford, Hull & Flock, Calhoun & Clark, Tyler, for appellee.
   MOORE, Justice.

This suit was instituted by Adelle Hul-lum, Individually and as Temporary Ad-ministratrix of the estate of her deceased husband, J. T. Hullum, and also as Guardian of Richard Sidney Hullum and Cynthia Ann Hullum, seeking damages for the alleged wrongful death of J. T. Hullum under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq. Upon trial of the cause, the jury returned a verdict for the defendant, St. Louis Southwestern Railway Company, and based upon the verdict the court entered a take-nothing judgment and the plaintiffs, hereinafter designated as Appellants, perfected this appeal.

As a basis for their cause of action, Appellants alleged in their pleadings that the injuries and resulting death sustained by the plaintiffs’ decedent were caused by the failure on the part of the agents, servants and employees of the railroad to exercise due care for his safety in each of the following particulars: (1) in failing to furnish decedent with a safe place to work; (2) in failing to keep a proper lookout for decedent on the occasion in question; (3) in moving the cars at a speed in excess of that which an ordinary prudent person would have moved same; (4) in kicking the cars in question harder than a person of ordinary prudence would have kicked same ; (5) in kicking the cars without having first determined that decedent was in a safe position aboard the car he was riding; and (6) in kicking the cars in question on a downgrade, all of which acts were alleged to be a proximate cause of the injuries and resulting death of J. T. Hullum. Ap-pellee St. Louis Southwestern Railway Company denied the allegations and plead contributory negligence and unavoidable accident.

The evidence shows that at the time of the accident Appellants’ decedent, J. T. Hul-lum, was a member of a switching crew working at his assigned duties with Appel-lee St. Louis Southwestern Railway Company at Appellee’s Tyler, Texas, yard. On the morning of December 13, 1961, the railroad’s company crew was engaged in a switching operation which, in the railroad industry, is commonly referred to as “kicking cars,” which was shown to be a customary type of operation. In this type of operation the switch engine would push a number of cars forward until enough momentum was gained that the cars would move under their own power, at which time the switch engine would be slowed and the cars would be “cut” or “kicked” loose from those remaining attached to the switch engine, and would then roll on to the different side track to their previously designated location where the cars would then be stopped or “spotted” by a member of the switching crew by the use of a handbrake. It was the duty of the decedent, J. T. Hullum, to ride the various “kicked” cars to their designated location and to set the handbrake at the proper “spot.” Just before the occurrence in question, cars were being switched out of Track No. 6; one car had been kicked, unmanned to Track 11; one car had been kicked, unmanned to Track 8; one car had been kicked to Track 6, on which switchman C. R. Strother rode to apply the brake, and then six cars were kicked to Track No. 9 on which Hullum was to ride and set the brake.

According to the testimony of C. R. Strother, a member of the switching crew, he was looking directly at Hullum when the accident happened. He testified that he saw Hullum mount the rear end of the leading box car and again observed him when he got to the top of the car. He then observed Hullum to take about three or four steps forward and then turn around and face the engine, appearing to have braced himself. That although it is the usual practice in the Tyler yard for the engine to stop after a kick has been made, the engine did not stop on any of the previous kicks and did not stop before kicking the cars on which Hullum was riding. According to his testimony, the switch engine kicked the cars out from under Hullum and he fell down between the cars. He testified that immediately thereafter he left the car which he was riding and went upon one of the cars on which Hullum had been riding and applied the handbrake and stopped the cars; he then went to Hullum and found him to be underneath one of the cars, but outside the track; that he was approximately 55 to 60 feet from the place where he fell between the cars, was bleeding profusely and seemed to be injured in the shoulder and appeared to have been dragged by the cars. An ambulance was called and he was immediately hospitalized.

He further testified that at the point where Hullum fell from the car, the grade of the track descended in the direction in which the cars were moving, and that under such circumstances it is not ordinarily necessary to kick the cars because they will move under their own momentum; that it was the usual custom in Tyler yard for the engine to kick the cars and then stop before kicking other cars, but on this occasion the switch engine did not stop before kicking the cars upon which Hullum was standing. However, the kick was accomplished in an ordinary manner and there was no rule or regulation requiring the engine to stop before kicking. According to his testimony, it is the duty of the engine foreman to see that his men are in a safe position before kicking movements are made.

L. C. Foster, another member of the switching crew, testified that he had pulled the pin to cut loose the six cars on which Hullum was riding, and that there remained eleven cars between him and the switch engine at that time. He testified that the side tracks were so arranged that it was not necessary for the switch engine to stop in order to make the previous kicks on the side track, but same could be accomplished by bumping or kicking the cars and then slowing down; that this was the method used on this occasion; that Mr. W. B. Bradley gave the kick signal at which time the cars were traveling three or four miles an hour; that he did not know the whereabouts of Hullum at that time and did not see him fall.

The engineer, C. H. Bivins, testified that at the time of the incident the switch engine was proceeding between three and four miles an hour on a descending grade; that upon receiving the kick signal from Bradley, he momentarily accelerated the throttle so that the sudden thrust of power from the engine would bump the cars together so that the tension on the pin connecting the coupling between the cars could be released, permitting the pin to be pulled so that the cars could be uncoupled as they moved down the track; that the momentary acceleration of the throttle would have probably increased the speed of the engine to seven or eight miles per hour had the acceleration been maintained. He testified that he did not see Hullum at the time of the kick signal nor at any time thereafter. He further testified that the kicking operations on this occasion were made without stopping; that there was no rule requiring the engine to stop before a kicking operation, and that it is safer on a downgrade track to move the cars in and spot them while attached to the engine rather than kick them.

The engine foreman, W. B. Bradley, testified that he was the foreman in charge of the switching crew, and that he was responsible for the safety of the equipment as well as the safety of the men. It was his duty to give the engine all signals in connection with the switching operation; that he had given the engineer the signal to kick the cars on which Hullum was riding; that on this occasion it was necessary to kick the cars somewhat harder than usual because of the fact that in cold weather the cars will not roll as freely as in warm weather, but that the cars on the occasion in question did not exceed a speed of between four and six miles per hour. He testified that at the time the signal was given he did not have Hullum in his view because Hullum had crossed over the track ahead of the cars in order to align the switch and was, therefore, on the opposite side of the train from him; that he did not see Hullum when he reached the top of the car because of the fact that he was standing on the ground near the cars and could not, therefore, see on top of the cars. He further testified that although it was not the custom in the Tyler yards to bring the train to a complete stop before a kicking movement was made, it was done most of the time when such movement was made on a downgrade; that it was his duty to see that the men were in a safe position before a car was kicked, and that although there was nothing unusual about the kicking operation, it would have been safer to have shoved the cars to the desired location rather than to have kicked them.

The hospital records introduced by Appellants from the files of the St. Louis Southwestern Railway Lines Hospital where Mr. Hullum was treated contains a history of the injury related by Mr. Hullum upon his arrival there on December 22, 1961. The history related by him was as follows:

“Present Illness: The patient gives a history of injury on December 13, 1961, in the Tyler Yards. He was on top of a car (moving) trying to get from that car to the next Then lost his balance. Fell between the 2 cars on the ground and apparently he was dragged for some distance before the cars came to a stop. Multiple injuries resulted.”

The medical testimony shows conclusively that death resulted from the injuries sustained by him on the occasion in question.

In response to the Special Issues submitted by the court, the jury found (1) that the members of the defendant’s switching crew did not fail to keep a proper lookout for decedent on the occasion in question; (2) that the defendant’s switching crew immediately before the occurrence did not move the car they were switching at a speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have moved the cars under the same or similar cicumstances; (3) that the kicking of the cars on the occasion in question was not negligence; ■ (4) that the cars were not kicked harder than they would have been kicked by an-ordinary prudent person in the exercise of ordinary care; (5) that the defendant did not fail to provide J. T. Hullum with a reasonably safe place in which to work; (6) that the death of J. T. Hullum was not due solely to natural causes; (7) that such injuries were a producing cause of his death; and (8) that the occurrence in question was the result of an unavoidable accident. The jury exonerated deceased, J. T. Hullum, of any contributory negligence and assessed the damages due his estate at $10,000.00 for his mental pain and suffering and loss of earning; assessed the damages of each of the minor children at the sum and amount of $20,000.00, and assessed the damages to Mrs. Adelle Hullum, his wife, at $42,500.00.

Appellants contend by their first two Points that the trial court committed reversible error in failing to submit to the jury their requested Special Issues No. 1A and 3A, followed by the subsidiary issues of negligence and proximate cause.

Omitting the subsidiary issue of proximate cause, the first requested issue read as follows:

1-A “Do you find from a preponderance of the evidence that kicking of the cars on the occasion in question on a down grade was negligence ?”

The court, no doubt, refused this issue because the court in his main charge had already submitted Special Issue No. 5 as follows:

“Do you find from a preponderance of the evidence that the kicking of the cars on the occasion in question was negligence ?”

Thus, the only difference in the issue submitted and the one requested is that the phrase “on a down grade” was inserted. It was not disputed that the track at the point of the kicking operation was on a downgrade. All the witnesses testified that the track was on a slight downgrade and there is nothing in the record that would indicate the contrary. Quite obviously, Special Issue No. 5 was a much broader submission than that, requested by the Appellants. It covered every aspect of negligence in the kicking operation and is a controlling issue, while the issue requested by Appellants would limit the inquiry as to whether or not it was negligence to kick the cars while on a downgrade and would, therefore, amount to nothing more than an evidentiary issue.

It is our opinion that the issue suggested by the Appellants is but another shade or phase of the same issues which had therefore been substantial and sufficiently covered by Special Issue No. 5 in the court’s main charge.

“ * * * It has never been the policy of the law to lengthen and complicate special issue charges by requiring trial courts to give issues that merely submit various phases or other shades of meaning of an issue already in the charge. It is required only that each controlling issue raised by the pleadings and the evidence be submitted once, fairly, simply and succinctly.”

Northeast Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, Rule 279, Texas Rules of Civil Procedure. We fail to find any error in the court’s refusal to submit Appellants’ requested Issue 1A.

With reference to Appellants’ requested Issue No. 3A, omitting the subsidiary issues of negligence and proximate cause, the requested Special Issue reads as follows :

3-A “Do you find from a preponderance of the evidence that the Defendant’s crew on the occasion in question kicked the cars in question without first determining that J. T. Hullum was in a safe position aboard the car he was riding ?”

Appellants contend that even though the court submitted other Special Issues covering (1) whether or not Appellee’s crew kept a proper lookout; (2) whether Appel-lee furnished a safe place to work; and (3) whether or not the kicking of the cars on the occasion in question was negligence, the trial court erred in failing to submit this issue because this issue having been plead, presented another theory of recovery.

Appellants argue that since the engine foreman Bradley had a duty to know that his men were in a safe place before kicking the cars, and since he could not see Hullum from the position he occupied on the ground, even though he maintained a proper lookout from his position on the ground, Bradley failed to perform his duty in that he failed to determine that Hullum was in a safe position before commencing the kicking operation, which conduct presented an independent controlling issue on an additional theory of recovery.

What has heretofore been said with regard to the propriety of submitting Appellants’ Specially Requested Special Issue No. 1A would appear to apply with equal force to this requested issue. It was Appellants’ theory that the conduct of the switching crew in kicking the cars at the time, place and on the occasion under all the surrounding circumstances amounted to negligence. It therefore appears to us that the submission of Special Issue No. 1 inquiring as to whether the other members of the Appellee’s switching crew kept such a lookout for Hullum as would have been kept by an ordinary prudent person in the exercise of ordinary care under the same or similar circumstances, together with the submission of Special Issue No. S inquiring as to whether the train crew failed to use ordinary care in kicking the cars on the occasion in question would be sufficient to cover the controlling issue raised by the pleadings and evidence. It appears to us that these two issues would fairly and adequately cover every aspect of any negligence that could have possibly been involved in the kicking operation.

Where the controlling issues raised by the pleadings and evidence have been fairly, simply and succinctly submitted, a reversal cannot be predicated upon the trial court’s failure to submit other and various phases or different shades of the same issue. Moreover, it is reversible error for the court to submit the same controlling fact question more than once, whether in identical language or merely in similar form. Western Gulf Petroleum Corporation v. Frazier Jelke & Co., Tex.Civ.App., 163 S.W.2d 860; Clary v. Morgan Motor Co., Tex.Civ.App., 246 S.W.2d 936; Texas & N. O. R. Co. v. Pool, Tex.Civ.App., 263 S.W.2d 582, Rule 279, T.R.C.P.

Appellants contend that the failure to submit these issues would amount to a denial of Appellants’ “federally created rights” under the provision of the Federal Employers’ Liability Act. This would, no doubt, be true if the Requested Issue presented an ultimate, controlling fact issue not already covered in the charge of the court, because the denial of such an issue would be to deny a substantive right. If, however, we are correct in holding that the trial court submitted all of the controlling fact issues made by the pleadings and the evidence, it appears to us that the Appellants were thereby afforded all substantive rights, in this respect, contemplated by the Act and the decisions of the federal courts. The question of whether the issues are to be further “pulverized” can be nothing more than a procedural question to be determined according to the procedural rules of the forum selected by the Appellants. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111; Dollie Adams Oil Corp. v. Cree, Tex.Civ.App., 279 S.W.2d 619. Appellants’ Points 1 and 2 are overruled.

By Appellants’ third Point, it is contended that the trial court committed re-versable error in failing to submit Appellants’ Specially Requested Instruction No. 2 as follows:

“You are further instructed that the Defendant railroad is under a continuing non-delegable duty to provide its employees including the Plaintiffs’ decedent, J. T. Hullum, with a reasonably safe place in which to work.”

The charge of the court contained an issite inquiring as to whether or not Appellee furnished a safe place to work, together with a definition of the terms used therein. Appellants registered no objection to the issue nor to the definition of the term “safe place to work”, but requested in addition thereto the above instruction.

Rule 277, T.R.C.P., provides in part as follows:

“In submitting special issues the court shall submit such explanatory instructions and such definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. * * * ” (Emphasis added)

Instructions in the nature of a general charge are exceptional and as indicated by the Rule are to be given only .when a necessity exists therefor. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481; Archey v. Nederlandsch-Amerikaansche Stoom, Maat., Tex.Civ.App., 354 S.W.2d 688, cert. den., 371 U.S. 929, 83 S.Ct. 299, 9 L.Ed.2d 236.

We fail to see how the knowledge on the part of the jury of the legal obligation of the railroad company’s continuing non-delegable duty would, under the circumstances, have aided the jury in determining from the facts before it whether the railroad company had failed to furnish a safe place to work. We think the court’s definition of the term “reasonably safe place to work” was a correct definition and was adequate under the circumstances presented here. Guthrie v. Sinclair Refining Company, Tex.Civ.App., 320 S.W.2d 396, n. r. e., cert. den., 361 U.S. 883, 80 S.Ct. 155, 4 L.Ed.2d 120.

If, however, the refusal by the court to submit the Requested Instruction be deemed to be error, we have concluded that such would not amount to such a denial of the right of the Appellee as to be reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434 and 503, T.R.C.P., Thompson v. Robbins, supra.

Point 5 complains of the action of the trial dourt in admitting testimony of W. B. Bradley, Appellee’s engine foreman, concerning a conversation with the decedent while visiting with decedent in the hospital in Tyler. That portion of the conversation to which objection was made is as follows:

“Q. Did he (J. T. Hullum) tell you anything about what had happened?
“A. No, sir. Other than he said he didn’t hold any member of the crew responsible or feel any ill feeling toward any member of the crew about the accident.”

Appellants objected to the admission of this testimony on the grounds that it was a self serving declaration, hearsay and a conclusion. The objection was overruled.

As a general rule, declarations, statements, or admissions against interest are admissible in civil cases against the party making them. This rule is a well recognized exception to the hearsay rule. It has also been held that such statements by an ancestor against his interest which would be admissible against him if living are admissible against his heirs and legal representatives of his estate. McLean v. Hargrove, 139 Tex. 236, 162 S.W.2d 954; Hupp v. Hupp, Tex.Civ.App., 235 S.W.2d 753; Lubbering v. Ellison, Tex.Civ.App., 342 S.W.2d 796; 24 Tex.Jur.2d, Par. 613, p. 166.

We are likewise unable to agree with Appellants’ contention that such testimony was objectionable as a conclusion. The opinion or conclusion rule is considered to be applicable only in regulating the examination of a witness on the witness stand, where under the supervision of the court, the witness can be required to give the specific facts and is not thought to apply to an out-of-court statement, declaration or admission. In light of the facts and circumstances presented here, we are inclined to believe decedent’s statement that he did not hold any member of the crew responsible for the accident was admissible before the jury in the words of the declarant, even though it be considered a conclusion. Ferrand v. Houston & T. C. R. Co., Tex.Civ.App, 205 S.W. 845; Taylor v. Owen, Tex.Civ.App, 290 S.W.2d 771; McCormick & Ray, Texas Law of Evidence, Par. 1126, p. 23. Appellants’ fifth Point is thought to be without merit.

The sixth Point complains of the action of the trial court in admitting into evidence, over Appellants’ objection, a motion picture depicting the “kicking” movement of the train, contending that the film should not have been shown to the jury because the surrounding conditions, type of cars, the position of the crew and the speed of the movement as depicted by the picture was different from that on the occasion in question, thereby rendering such motion picture immaterial and highly prejudicial.

In order to render evidence of an experiment made out of court admissible, it is generally held that there must be a substantial similarity between conditions existing at the time of the occurrence which gives rise to the litigation and those in existence at the time the experiment is conducted for demonstration purposes. It is not, however, essential that the conditions of the occurrence and the experiment be identical. When there exists a dissimilarity, testimony of an experiment should be excluded when the result thereof would probably confuse rather than aid the jury. There exists, however, an area wherein the determination of the admissibility of proffered experiment testimony rests within the discretion of the trial judge. This occurs whenever the dissimilarity between the occurrence, conditions and the circumstances of the experiment is minor or can be made abundantly clear by explanation. Fort Worth & Denver Railway Company v. Williams, Tex., 375 S.W.2d 279.

It is conceded that the film does not attempt to re-enact the fatal accident.

Appellants contend that the demonstration depicted by the motion picture should not have been admitted in evidence because the movement was not shown to be similar to the actual occurrence in question in that the engine crew was not the same; the crew was not in the same position; the engine was not the same; the weather was much warmer; that no one was shown to be on top of the car in Hul-lum’s position at the time the “kick” was made; that there were four gondola cars in front of the boxcar rather than boxcars, so that a man at the brake platform could be more easily seen; that the cars were moved more slowly; that the gondola cars used in the film were loaded, which would cause them to roll faster than empty cars, and that there was no> bumping of the cars — they were merely cut off.

Appellee’s engine foreman, W. B. Bradley, who was in charge of the switching operation on the occasion of Mr. Hullum’s injury was also in charge of the switching operation at the time of the making of the film. He testified that except for himself, the engine crew used on the occasion of the film was not the same, nor was the same engine used; that the weather was much warmer; that no one rode on the boxcar in Hullum’s position atop the boxcar. He further testified that in making the film, no attempt was made to do anything except to show the type of switching movement; that the film was shown to him after it had been developed and that the film was a correct portrayal, substantially, of the type of switching operation that was conducted on the date of the accident, and that it showed the same portion of the track where the accident occurred and that the speed of the movement was the same.

It is apparent from the record that the Appellee’s purpose in offering the film was to demonstrate only the movement of the train while engaged in a “kicking” operation.

The trial court ruled that the exhibition of the film to the jury would not confuse them, but would be of some aid to them and that the dissimilarities disclosed had either been explained or were capable of explanation so as to be readily understood. It occurs,to us that the situation presented here falls within that area where the determination of the admissibility of the proffered experiment testimony rests within the sound discretion of the trial judge. Very few tests can he made under the exact conditions present when a prior event occurred. The law requires only that substantially the same conditions must exist. The trial court is allowed considerable latitude in determining whether the conditions are sufficiently similar to permit testimony about the tests. Fort Worth and Denver Railway Co. v. Williams, supra; Howell v. Missouri-Kansas-Texas Railroad Company, (Tex.Civ.App.), 1964, 380 S.W.2d 842; Morris v. Du Pont De Nemours & Co., 346 Mo. 126, 139 S.W.2d 984, 129 A.L.R. 352; McCormick & Ray, Texas Law of Evidence, Vol. 2, page 322. No abuse of discretion is thought to be shown and the point is therefore overruled.

By Points 7 through 14 Appellants contend that the judgment should be reversed because the findings of the jury in response to each of the Special Issues is contrary to the evidence and is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

In approaching the problem presented by these assignments, we must keep in mind that we are here dealing with a cause of action created by our National Congress and jealously interpreted by the federal courts. The fact that the case was tried in a Texas court according to our local rules of procedure means little, if anything, when we come to decide the sufficiency of the evidence. Under the Federal Employers’ Liability Act, the question of “what constitutes negligence, and the sufficiency of evidence to raise that question for the jury, is to be determined by the applicable federal decisions.” Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220.

Under the most recent federal decisions, the function of the jury in F.E.L.A. cases has been broadened to the extent that very little evidence is required to uphold a jury verdict of negligence. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Deen v. Gulf, Colorado & Santa Fe Railway Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Gallick v. Baltimore and Ohio Railroad Company, 372 U. S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618; Basham v. Pennsylvania Railroad Company, 372 U.S. 699, 83 S.Ct. 965, 10 L.Ed.2d 80.

A review of the Federal decisions makes it clear that it is the federal policy to give the jury a much wider latitude than is customary under the state law standards established by our own Supreme Court. In the Rogers case, supra, it is there pointed out that it was the “basic congressional intention to leave to the fact-finding function of the jury the decision of the primary question raised in these cases — whether employer’s fault played any part in the employees’ mishap.” And the Supreme Court then reaffirmed this position by saying it was “cognizant of the duties to effectuate the intention of Congress to secure the right to a jury determination (in FELA cases), (and) this court is vigilant to exercise its power of review in any case where it appears that the litigants have been improperly deprived of that determination.” (Emphasis supplied). This decision is thought to be applicable to the right of the employer as well as to the right of the employee. Certiorari was denied in each of the following cases where the employee sought to overturn an adverse jury verdict. Jones v. Illinois Term. R. R., 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101; Conser v. Atchison, T. & S. F. R. R., 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653; Metrakos v. Cleveland Union Term. Co., 348 U.S. 872, 75 S.Ct. 107, 99 L.Ed. 686; Kane v. Chicago, B. & Q. R. R., 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738; Daulton v. Southern Pac. Co., 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 549; Burch v. Reading & Co., 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914; Brinkley v. Penn R. R., 358 U.S. 865, 79 S.Ct. 94, 3 L.Ed.2d 97; and Masterson v. New York Cent. R. R., 361 U.S. 832, 80 S.Ct. 84, 4 L.Ed.2d 74.

In Tennant v. Peoria & P. U. R. R., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520, the Supreme Court in a F. E. L. A. case said:

“Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”

That the applicable rules of state law on the question of the insufficiency of evidence do not apply to federally created rights has been foreclosed in this state by the decision of Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28.

In the Deen case the Supreme Court of the United States held, in effect, that in reviewing evidence of FELA cases the Texas standard of “against the [great] weight and preponderance of the evidence” is not applicable, and that reversal of a verdict of a jury on this ground is, as a matter of law, improper. The sequence of events giving rise to this opinion is significant. Initially the Texas courts disregarded a jury verdict in favor of an employee on the ground that there was “no evidence” of negligence. When this decision was reviewed by the United States Supreme Court at 353 U.S. 925, 77 S.Ct. 715, the case was reversed and remanded to the Texas Supreme Court. That court then returned the case to the Court of Civil Appeals for an independent determination of whether the answers of the jury were “against the great weight and overwhelming preponderance of the evidence.” This action of the Texas Supreme Court was again appealed, and the United States Supreme Court again reversed, holding that an inquiry as to whether the verdict of the jury was against the great weight and preponderance of the evidence was “foreclosed.”

The federal standards in evaluating jury verdicts in FELA cases have thus been compelled by the Supreme Court of the United States and the validity of those standards has been recognized by the Supreme Court of Texas. Robinson v. Gulf, Colorado & Santa Fe Ry. Co. (1959), Tex.Civ.App., 325 S.W.2d 432, err. ref., cert., 362 U.S. 919, 80 S.Ct. 672, 4 L.Ed.2d 739.

For the above reasons it appears that Points 7 through 14 are immaterial.

We hasten to add, however, that we have had occasion to review all of the evidence in the case and have concluded that the findings of the jury are not so against the weight and preponderance of the evidence as to be manifestly wrong and unjust.

No reversible error being shown, it becomes the duty of this court to affirm the judgment of the trial court and it is so ordered.

      . —SPECIAL ISSUE NO. 9
      “Do you find from a preponderance of the evidence that on the occasion in question, December 13, 1961, the defendant failed to provide J. T. Hullum, deceased, with a reasonably safe place in which to work?
      “You are instructed that by the term ‘reasonably safe place in which to work’, as used herein, is meant such a place with regard to safety of its employees as would be furnished by an ordinary prudent employer in the exercise of ordinary care under the same or similar circumstances.”


source: Caselaw Access Project

author: GREEN, Chief Justice. NYE, Justice

license: Public Domain

text:
    Pat REED, Appellant, v. George J. FULTON, Appellee.
    No. 79.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 12, 1964.
    Rehearing Denied Dec. 3, 1964.

      James E. Bock, of Mayer, Mayer & Levin, Dallas, for appellant.
    Milton Walton, of Bloch & Walton, Corpus Christi, for appellee.
   GREEN, Chief Justice.

Pat Reed, appellant, hereinafter called Reed, filed suit in district court for damages against George J. Fulton, appellee and cross-appellant, hereinafter referred to as Fulton, alleging breach of contract. The written contract between the two, signed in Dallas, Texas, September 15, 1959, involved the sale by Reed to Fulton of a champion Greyhound racing dog named Rio Grande Rose for $6,000.00, and two other greyhounds for $250.00, with the proviso that Reed should have the option to repurchase Rio Grande Rose for $1.00 within sixty days after the running of the American Greyhound Derby at Taunton, Massachusetts, in 1961. The testimony disclosed the date of this race as about October 21, 1961. Fulton agreed that upon the exercise of this option by Reed he would return the dog to Reed in Dallas, Texas, within two weeks. The contract also provided for the delivery by Fulton to Reed of a Greyhound, Milam Choice, forthwith after execution of the contract. Other provisions in the contract material to this appeal will be discussed later.

Neither dog was delivered by Fulton to Reed, Milam Choice having been put to death by Fulton and Fulton having refused to return Rio Grande Rose, though Reed exercised his option and made due demand and tender of the $1.00 by registered letter dated November 1, 1961. The district court on a trial without a jury ruled that Fulton had breached the contract, found the damages to Reed as a result thereof at the time of the breach to be $2,500.00 for failure to return Rio Grande Rose and $100.00 for failure to deliver Milam Choice, and rendered judgment for Reed against Fulton for $2,600.00 with interest at 6% per an-num from date of judgment.

Reed’s appeal is based on his contentions that the amount of his recovery as to Rio Grande Rose was inadequate under the testimony, and that the court erred in failing to award liquidated damages in the sum of $10,000.00 due to Fulton’s failure to insure this dog as provided in the contract. Reed also says that interest on the amount of damages awarded should run from the date of the breach of the contract.

Fulton contends here by cross-points that the contract was invalid (1) because it was a gambling contract involving gambling paraphernalia, and (2) because it was obtained by force and duress, and that the trial court erred in granting any recovery to Reed. These defenses were included in Fulton’s pleadings in the trial court.

We shall first consider the cross-points of Fulton, since if either of them should be sustained the appeal would be disposed of regardless of any ruling on Reed’s points.

Reed and Fulton each owned kennels of greyhound racing dogs, and each was at the times in question interested in the business of raising and breeding such dogs, and racing them in states where dog races for cash prizes and pari-mutuel betting were legal. At the commencement of the trial before the court, the parties stipulated that prior to the execution of the contract of September 15, 1959, Reed and Fulton had raced Rio Grande Rose in jurisdictions which permitted such racing, and that at the time of signing the contract Reed knew, or had reason to believe, that the sole purpose of Fulton in purchasing the dog was to race it with the expectation of earning purses thereby at race tracks in jurisdictions where racing and pari-mutuel betting is permitted. It was further stipulated that prior to entering into the contract, Reed knew that while Rio Grande Rose had been in Fulton’s possession he had raced the dog and won substantial sums in races where dogs raced for cash stakes. The evidence shows that between September IS, 1959, and November 1, 1961, Fulton continued to race Rio Grande Rose very successfully in states which permitted pari-mutuel betting on such races.

The cases cited by Fulton in support of his contention that the contract in question was invalid as a gambling contract all concern actions prohibited or made unlawful by our penal statutes. Reed v. Brewer, 90 Tex. 144, 37 S.W. 418; Ohlson v. Wilson, 31 Tex.Civ.App. 178, 71 S.W. 768, n. w. h.; Hibbler v. Howe, Tex.Civ.App., 295 S.W. 299, n. w. h.; Hafale v. Canfield Manufacturing Co., Tex.Civ.App., 268 S.W. 986, n. w. h.; Hayes v. G. A. Stowers Furniture Co., Tex.Civ.App., 180 S.W. 149, writ ref.; Mihovil v. Hill, Tex.Civ.App., 118 S.W.2d 615; Schepps v. City of El Paso, Tex.Civ.App., 338 S.W.2d 955, writ ref., n. r. e.

There is no statute, so far as we have been able to determine, which prohibits dog races in Texas, or raising dogs or other animals for racing purposes. However, betting in Texas on the results of dog races, whether held in the state or elsewhere, is illegal. Article 646a, Vernon’s Ann.Penal Code of Texas. But there is no evidence that there was any illegal betting on Rio Grande Rose or any of the other dogs named in the contract, or that any of the sums realized by Fulton as the result of racing Rio Grande Rose was won by the commission of any unlawful gambling. The record reflects that the dog was raced only in jurisdictions where pari-mu-tuel betting on dog races was legal, and that no betting on such races occurred in Texas.

A contract to do a thing which cannot be performed without a violation of the law is void. But where illegality does not appear on the face of the contract it will not be held void unless facts showing illegality are before the court. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, and cases cited; Kahn v. Harris, Upham & Co., Tex.Civ.App., 247 S.W.2d 139, aff’d. 151 Tex. 655, 253 S.W.2d 647.

The trial court did not err in refusing to find that the contract was unenforceable by reason of being an illegal gambling contract. Fulton’s cross-points one and two are overruled.

Cross-appellant Fulton’s remaining cross-points are directed toward his proposition that the contract in question was a product of duress practiced upon Fulton by Reed, and was hence voidable and unenforceable, and that the trial court erred in granting any relief to Reed.

The evidence reflects that prior to June, 1959, Rio Grande Rose was owned by one Albritton. In March, 1959, Albritton delivered possession of the dog to Fulton under a lease agreement. In June, 1959, while the dog was in Fulton’s possession, Albrit-ton executed a bill of sale selling Rio Grande Rose to Reed. Thereupon, Reed caused the dog to be forcibly taken from the possession of Fulton in Denver, Colorado. Litigation between Reed and Fulton over rights to Rio Grande Rose followed, both in Kansas and in Dallas, Texas. Fulton testified that he had commitments to race the dog in various states where pari-mutuel betting was permitted, and that it would be very embarrassing and expensive to him to be forced to break these commitments, and that Reed took advantage of this situation to cause him to enter into the contract. During the trial of the Dallas case, the contract between Reed and Fulton involved in this suit dated September 15, 1959, was executed, as a result of which the parties agreed to dismiss all pending litigation between them involving the ownership, regís-tration, or right to possession of any dog named in the contract.

In his findings of facts, the trial court found that “the law suit in Dallas could have been tried, but was not tried, because the parties entered into a contract of settlement. The court is of the opinion that duress was not involved in the settlement.” The evidence fully supports this finding of fact, and all of Fulton’s cross-points concerning the defense of duress, including his cross-points as to the court’s refusal to find incidental facts as to such issue, are overruled.

We proceed to appellant Reed’s Points 1 and 2 to the effect that the amount of the trial court’s findings of damages as the result of Fulton’s breach of the contract as to Rio Grande Rose was inadequate. According to the evidence, Rio Grande Rose at the time of the execution of the contract in September, 1959, had a racing life of from two to two and a half more years, after which it would be of no value as a racing dog. Thereafter, its value would be only as a breeding dog to have puppies, or as a pet. There is in the record testimony that the value of Rio Grande Rose in November, 1961, after her racing days were over, was anywhere from $500.00 to $10,000.00 or more. On such conflicting evidence, the trial court acted within its sound discretion in fixing the value of Rio Grande Rose at that time at $2,500.00. Reed’s points one and two, assigning as error the inadequacy of this finding, are overruled.

Appellant Reed’s Points 3 to 9 inclusive concern the alleged error of the trial court in not rendering judgment in favor of Reed for $10,000.00 liquidated damages due to Fulton’s failure and/or refusal to provide life insurance on the dog Rio Grande Rose as provided in the contract sued on.

The provisions of the contract relied on by Reed to support this contention are as follows:

“VI. It is further agreed by and between the parties that George J. Fulton will cause life insurance to be issued on Rio Grande Rose; that George J. Fulton will pay the premiums for said life insurance; that said life insurance will be in an amount at least equivalent to the purchase price of the dog, but not more than Ten Thousand Dollars ($10,000.00), George J. Fulton further agrees that the beneficiary of such policy shall be the said Pat Reed and that the policy or such evidence of insurance as may be received by George J. Fulton shall be delivered to the said Pat Reed. George J. Fulton agrees to use reasonable efforts to maintain said insurance upon the dog Rio Grande Rose until the time for the exercise of the aforementioned option to re-purchase has expired or until such option has been exercised.
“IX. It is further agreed by and between the parties by way of liquidated damages that the sum of Ten Thousand Dollars ($10,000.00) is a fair and reasonable sum to be assessed as damages if the parties, or either of them, shall violate the spirit of this agreement in the following particulars;
“(a) Should George J. Fulton refuse to insure the dog Rio Grande Rose as aforesaid, or should George J. Fulton cancel such insurance in force during the period of this agreement, then, in that event the said George J. Fulton shall be liable for the sum of Ten Thousand Dollars ($10,000.00) by way of liquidated damages.”

Concerning this claim of Reed’s, the trial court made the following findings of fact and conclusions of law:

“5. That George J. Fulton used reasonable efforts to obtain and maintain insurance on Rio Grande Rose in an amount of $6,000.00 as required by the contract.
“6. That insurance coverage was not available on Rio Grande Rose that would have complied with the contract.
“7. That George J. Fulton did not refuse to insure Rio Grande Rose for $6,000.00 minimum to $10,000.00 maximum coverage.
“8. That George J. Fulton did not cancel insurance in force on Rio Grande Rose.
“9. That Rio Grande Rose was alive at all times material to the contract and was alive at the time of trial and judgment.
“10. That Pat Reed suffered no damage as a result of the lack of insurance coverage on Rio Grande Rose.”
CONCLUSIONS OF LAW.
“1. The Court finds insufficient evidence from liquidated damages or exemplary damages;
“2. The Court finds insufficient evidence to support the insurance policy claim.”

Rio Grande Rose was alive at the time of the trial of this suit. Reed did not choose to sue for her possession, but sued for damages instead. The trial court’s finding that Reed was not damaged by Fulton’s failure to secure insurance on the dog’s life is fully supported by the evidence.

The liability for liquidated damages as stated in the contract was not based on Fulton’s failure to insure Rio Grande Rose, but upon his refusal to insure, or his cancellation of such insurance. Fulton testified that he applied to a number of insurance agencies for life insurance on the dog as provided by the contract, but that he was unable to secure such insurance. The evidence reflects and the trial court found that Fulton did not refuse to insure but that after using reasonable efforts to insure he just was not able to obtain such insurance as was mentioned in the contract.

The findings and conclusions of the trial court above copied concerning Reed’s claim for liquidated damages, in the amount of $10,000.00, were fully supported by the evidence, and the court did not err in refusing such claim. Reed’s Points numbers 3 to 9 inclusive are overruled.

Reed’s 10th point is that the trial court erred in failing to award interest on his damages from the date of the breach of the contract to the date of the judgment.

Reed’s letter to Fulton demanding delivery of the two dogs was written November 1, 1961. The contract provided that Fulton should have two weeks after such demand in which to deliver Rio Grande Rose. By letter dated November 15, 1961, Fulton, by his lawyers, refused to deliver the dogs under the contract. Thus, the date of the breach of contract is fixed as November 15, 1961.

The evidence shows without dispute that Rio Grande Rose was through as a racing dog by November, 1961. The trial court found that “the value of the dog (Rio Grande Rose) after her racing days were over is $2,500.00.” In his conclusions of law, the court found “for the plaintiff damages in the sum of $2,500.00 for Rio Grande Rose” and “damages for the dog, Milam Choice, in the sum of $100.00.”

The judgment, dated September 20, 1963, states that “The Court is of the opinion that Plaintiff is entitled to judgment against the Defendant in the amount of $2,600.00 together with interest from November 1, 1961, to date of judgment, and from date of Judgment until paid.” (Emphasis ours) Thus it is clear that the trial judge did not include interest in assessing damages as of the date of the breach, and that he intended that the damages assessed by him should bear interest from the date of the breach. However, in the following paragraph, the decree provides for jud.t only for the sum of $2,600.00, with interest from the date of judgment at the rate of 6% per annum.

We find no conflict between the statements of the trial court in his findings and conclusions of law as to damages and his express finding in his decree that plaintiff is entitled to interest on the damages from November 1, 1961, to date of judgment, with this exception. Reed’s cause of action did not accrue until November 15, 1961, the date of Fulton’s attorney’s letter refusing to comply with the contract, which date was also two weeks after Reed’s demand for delivery of the dog.

In Watkins v. Junker, 90 Tex. 584, 40 S.W. 11, a suit in which the cross-plaintiff recovered damages in a cross-action for breach of contract in failing to furnish dredge boats as stipulated in the contract, the cross-defendant obj ected to the recovery of interest before judgment on the ground that the damages were unliquidated. The Supreme Court, in holding cross-plaintiff entitled to interest before judgment as part of his damages, said:

“It is true that interest, strictly speaking, exists only by statutory law, but it is likewise true that courts have recognized the fact that compensation for detention of that which is due on account of injury inflicted is an element of damages necessary to the complete indemnity of the injured party; * * *.
“If interest be properly an element of damages in any case, then it is so as a matter of law. * * *
“If one takes possession of the horse of another, and withholds it from the owner, compensation for the value of the use of the horse during the time is a legal right, and no court would hesitate to instruct the jury to so find, and we can see no difference between the right to be compensated for detaining a horse worth $100, and the right to be compensated for the detention of $100, the value of the horse, in case he was killed or converted to the use of the taker,”

After a full discussion, the court laid down the rule that interest should be allowed as damages when the principal damages are fixed by conditions existing at the time the injury is inflicted. That the rule laid down in Watkins v. Junker, supra, is still the law of this state is demonstrated by Judge Calvert’s thorough endorsement of the opinion in Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83.

Since the cause of action accrued November 15, 1961, and the trial court found that as of that time Reed’s damages were $2,600.00, we hold that the trial court erred in not allowing Reed interest on such damages from November 15, 1961, to the date of the judgment. Watkins v. Junker, supra; State v. Hale, 136 Tex. 29, 146 S.W.2d 731; Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Texas Company v. State, supra; Texas & N. O. R. Co. v. Dingfelder & Balish, Inc., 134 Tex. 156, 133 S.W.2d 967; Taylor v. McFatter, Tex.Civ.App., 109 S.W. 395, n. w. h.; McNeill v. Casey, Tex.Civ.App., 135 S.W. 1130, n. w. h.; Humble Oil & Refining Co. v. State, Tex.Civ.App., 162 S.W.2d 119, writ ref.; Eugene B. Smith & Co., Inc. v. Russek, 5th Cir., 212 F.2d 338.

We have calculated the interest at 6% per annum on $2,600.00 from November 15, 1961, to September 20, 1963, the date of the entry of the judgment, and find it to be $288.16. Add this to the sum of $2,600.00 damages, and the result is $2,888.16. The judgment of the trial court is reformed so as to provide that Reed recover from Fulton the sum of $2,888.16, with interest from September 20, 1963, at 6% per annum.

Costs of this appeal are assessed one-half against Reed and one-half against Fulton.

Fulton having filed a supersedeas bond, the judgment rendered against him includes the sureties on said bond, so that Fulton and said sureties shall be liable for the performance of the judgment against Fulton.

Reformed and affirmed.

NYE, Justice

(concurring) :

Appellant failed to file the transcript and statement of facts within the time prescribed by Rule 386, Texas Rules of Civil Procedure. In my opinion, the motion for an extension of time filed by the appellant in this Court was not sufficient for this Court to acquire jurisdiction of this appeal. The majority of this Court having determined otherwise that the case is properly before us, I therefore join with the majority in this opinion as it makes proper disposition of the merits of the case.


author: BARROW, Justice.

text:
    Beaty A. SPEAR, Appellant, v. CENTRAL DISTRIBUTING COMPANY, Appellee.
    No. 14287.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1964.
    Rehearing Denied Nov. 25, 1964.

      Leon P. Howell, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   BARROW, Justice.

This is a damage suit. Appellant, Beaty A. Spear, a building contractor, brought this suit against appellee, Central Distributing Company, a wholesale appliance dealer, to recover for personal injuries sustained in a fall from a balcony in appellee’s warehouse. Although the jury made findings of primary negligence and damages favorable to appellant, a take-nothing judgment was entered upon the jury’s findings of contributory negligence proximately causing the fall.

Appellant presents forty-eight points which may be summarized and discussed under five general complaints: there is no evidence to support the jury’s findings of contributory negligence or, in any event, these findings are so contrary to the great weight and preponderance of the evidence as to be wrong; the jury committed several acts of misconduct; there are irreconcilable conflicts in the jury findings; the trial court erred in refusing to submit other requested issues of primary negligence; and the trial court improperly excluded some of appellant’s medical evidence.

The jury found primary negligence against appellee in failing to warn appellant about the non-weight bearing surface located in part of the balcony, but convicted appellant of contributory negligence in failing to keep a proper lookout for his own safety, in stepping on what he should have known was a non-weight bearing surface and in stepping between the 2x4 floor joists. Each of these findings of negligence was found to be a proximate cause of the accident.

The principal finding on this appeal is that of improper lookout, in that appellant concedes that many of his asserted errors are made harmless if this finding stands. Appellant urges, however, that the only evidence on this issue is his own testimony that he did not see the sheetrock ceiling before he stepped on it, and could not do so because of the poor lighting, as well as the obstructions created by a heavy layer of dirt on the sheetrock and the position of cartons of merchandise in the balcony.

There was a dispute as to whether appellee knew that appellant was going to the balcony, and the jury found that he was both an “invitee” and a “licensee.” This conflict is immaterial on the question of his lookout, in that as an invitee he was required to exercise ordinary care for his own safety. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 1953; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114, 1950; Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357, 1950; Watts v. Dallas Ry. & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref. n. r. e.

A full review of the facts and circumstances relating to the lookout issue is necessary. Prior to May 31, 1962, appellant had purchased a kitchen cabinet and vented hood from appellee for a home he was constructing. The hood was not delivered as promised by this date and appellant went to the office of appellee just before noon and obtained same. On returning to the construction site, appellant learned that the hood would not fit properly in the cabinet and that a back damper and elbows were needed to properly install the hood. About 3:00 p. m. he returned to appellee’s place of business to secure these missing items. He contacted Anthony Du-dik, assistant manager of appellee, who-learned from the warehouseman that the elbows were probably stored in the balcony of a warehouse across the street from appellee’s principal place of business. Appellant accompanied Dudik to the warehouse where the injury occurred.

The physical surroundings where the fall occurred are important considerations bearing upon appellant’s lookout. It was obvious to appellant that this warehouse, and particularly the balcony, was not a show room. The warehouse had formerly been used by an automobile dealer for assembling cars and had been acquired by appellee a few months before for storage space. It had a rough and unfinished interior. The balcony, which was over part of the first floor, was reached by means of a ladder-type stairs. Appellant testified that the whole balcony was a mess. It was cut up into four different levels and merchandise was lying haphazardly around same. The lighting, which the jury found was adequate, was supplied by means of a double skylight over the center of the balcony. A few feet to the east of the stairway entrance was a row of 2 x 4 studs, about 16-inches apart, on which had formerly been built a partition wall. East of same was a wooden catwalk 3'7" wide and elevated 16" above the balcony floor. After entering the balcony Dudik went into a storeroom north of the stairway. Appellant,, unknown to Dudik, started to the east to look in boxes in that direction. He went through the partition studs onto the catwalk and found a box with elbows in it. He called to Dudik, who looked out the north storage area and saw appellant about to step from the wooden catwalk to what looked like a dry ceiling. Dudik shouted a warning, but appellant was already stepping upon the sheetrock.

It is thus seen that Dudik, although about ten or twelve feet away, could see the danger. Further, appellant testified that there were many foot prints on the wooden catwalk, but none on the sheet-rock. The sheetrock was nailed under the floor joists and appellant testified that, as a builder, he knew non-weight bearing materials are nailed to the bottom of floor joists. Several photographs were introduced in evidence and the jury could properly conclude from them that appellant could have seen the sheetrock if he had looked. On cross-examination appellant testified that he usually looked where he was going, however, he admitted: “Q. I ask you, did you look where you were stepping at point 5 ? (where he stepped on sheetrock) A. I just don’t know.”

Ordinarily, whether or not a party has kept a proper lookout is a question for the jury. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 1958; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, 1946; Arrington v. Paschall, Tex.Civ.App., 352 S.W.2d 866, writ ref. n. r. e.; Locke v. J. H. Marks Trucking Co., Tex.Civ.App., 318 S.W.2d 1, no writ hist. The applicable rule is stated in Lynch v. Ricketts, supra: “In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Rick-etts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex. Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301 (T.R.C.P.), therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.”

It is our opinion that the testimony of appellant and Dudik, and the reasonable inferences to be drawn therefrom, together with the physical facts as shown by the photographs, are sufficient to raise the issue of improper lookout by appellant on the occasion in question. Further, the finding on this issue, as well as the causal connection issue submitted therewith, is not against the great weight of the evidence. This conclusion is reached from an examination of the entire record and by applying the test stated in Re King’s Estate, 150 Tex. 662,224 S.W.2d 660,1951; See also, Calvert, No Evidence and Insufficient Evidence, Points of Error, 38 Tex.Law Rev. 361.

This finding of contributory negligence which was a proximate cause of appellant’s fall supports the take-nothing judgment and it is therefore unnecessary to discuss the other contributory negligence findings.

Appellant asserted several acts of jury misconduct in his motion for new trial and by this appeal. They are: a juror, Morales, told other jurors that the government paid just $10,000 when a soldier was killed; a juror, Creek, told the jury that his family received just $10,000 or $12,500 from the insurance carrier for the Transit Company when his mother was killed; several jurors discussed and speculated as to whether appellant had any connection with a whiskey bottle shown in one of the photos admitted in evidence; at least two jurors erroneously concluded that the sheetrock portion of the balcony floor was on a different level from the wooden catwalk; the jurors discussed whether appellant had hospitalization insurance; the jurors agreed in advance to answer damage Issue No. 24 (future medical expenses) by adding Issues No. 22 (pain, mental anguish and loss of earnings) and No. 23 (past medical expense) ; and, the foreman slept while some of the deposition evidence was being offered by appellant.

A party asserting misconduct of the jury has the burden of proving (1) that misconduct occurred (2) which was material, and from the evidence, both on the hearing of the motion and 'the trial of the case, and from the record as a whole, (3) that injury probably resulted to the complaining party. Rule 327, Texas Rules of Civil Procedure; Willis v. Goodrum, Tex.Civ.App., 360 S.W.2d 182, writ ref. n. r. e.

Appellant and six jurors testified at the hearing on the motion for new trial. At the conclusion of same, the trial court found that several of the above acts had occurred, but that appellant had failed to show that probable injury had resulted from any of the acts of misconduct. We concur in this conclusion.

The trial court found that Morales and Creek made the statements relating to other claims. These statements were made in a brief discussion of a minute or minute and a half before the jury commenced their deliberations. Of the six jurors who testified, one did not hear the remark by Morales, and all were confused as to what Creek said. It is clear from all six, however, that these remarks occurred in a very casual manner and the jurors did not relate these remarks in any manner to this case. Appellant has failed to demonstrate that these remarks probably resulted in harm to him and therefore they are harmless. Mrs. Baird’s Bread Company v. Hearn, 157 Tex. 159, 300 S.W.2d 646, 1957.

An empty whiskey bottle is shown in one of the photographs which was introduced into evidence without objection. There was no testimony, however, showing that it had any connection with the case. The-trial court found that the whiskey bottle was mentioned in connection with the discussion of appellant’s lookout. He further-found that one of the jurors stated that they could not consider the bottle as it was-not mentioned in evidence and there was-no further speculation concerning same. Five of the six jurors who testified did not recall any discussion relating Spear to-the whiskey bottle. The photographs were-received in evidence without objection and, being properly in evidence, the jury was-entitled to consider them as well as any other evidence. Erroneous deductions-, drawn from the evidence is not misconduct. See Pope, the Mental Operation of Jurors,.. 40 Tex.Law Rev. 849, 855. In any event,, probable harm was not shown by this statement which was promptly rebuked.

Photographs were introduced in:, evidence purporting to show the balcony and particularly the area where appellant, fell. These pictures were properly discussed by the jury during their deliberations on appellant’s lookout. The trial court, found that at least two jurors erroneously concluded that the sheetrock portion of the balcony was on a different level than-the wooden catwalk. This was not misconduct. Juror’s deductions from the evidence, though faulty, illogical, arbitrary,, or bizzare, do not constitute misconduct. Trousdale v. Texas & N. O. R. Co., Tex.Civ.App., 264 S.W.2d 489, aff. 154 Tex. 231, 276 S.W.2d 242, 1955; Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 1943; Pope, The Mental Operation of Jurors, supra.

The trial court found that four of the-six jurors who testified on motion for new trial heard one or more jurors state during the deliberations on the damage-issues that appellant probably had hospitalization insurance. This was improper, but probable harm is not shown. The jurors, awarded all past medical expenses claimed by appellant and substantially more future medical expenses than pleaded by appellant-'Ihis improper statement was made after the jury had made the findings of contributory negligence. Neither is probable harm shown by the jury’s agreement made after answering the contributory negligence issues concerning the amount to be found in answer to Issue No. 24. Certainly, appellant was not harmed by this excessive ■answer.

The trial court found that the foreman “did not go to sleep to the extent that he did not hear such evidence.” Thus no ■misconduct was established and this fact .finding of the trial court is final under this record. Dickey v. Travelers Ins. Co., Tex. Civ.App., 356 S.W.2d 156, writ ref. n. r. e.

Appellant does not urge any conflicts in the jury findings which are in irreconcilable conflict with the finding that appellant did not keep a proper lookout. The asserted conflicts are therefore immaterial. Under the applicable rule laid •down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 1949, it is essential that appellant be able to ■point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with ■which it conflicts, necessarily requires the •entry of a judgment different from that which the court has entered. See also: Bay Petroleum Corp. v. Crumpler, Tex., 372 S.W.2d 318, 1963. The take-nothing judgment is supported by the jury finding of improper lookout and appellant does not show any conflict with or impairment of this finding. Other conflicting findings would be immaterial.

Appellant’s points relative to the refusal to submit requested special issues inquiring about additional acts of primary negligence and asserted improper exclusion of some of appellant’s medical evidence have been considered by us. The jury-made findings which established primary negligence against appellee and none of the requested issues would impair the contributory negligence finding of improper lookout. The damage issues, although found favorable to appellant, were immaterial in view of the take-nothing judgment being properly entered. Prejudicial error is therefore not asserted by any of these points and they are overruled. Rule 434, T.R.C.P.

The judgment is affirmed.


author: TIREY, Justice.

text:
    I. C. WEST, Appellant, v. H. Leon SLAUGHTER, Appellee.
    No. 4252.
    Court of Civil Appeals of Texas. Waco.
    Nov. 5, 1964.
    Rehearing Denied Nov. 19, 1964.

      Van N. Culpepper, Bryan, for appellant.
    Goode & Sandstedt, College Station, for appellee.
   TIREY, Justice.

This is an action in bailment. Plaintiff went to trial on his original petition and we quote the pertinent parts:

* * * that on or about November 22, 1962, plaintiff and defendant entered into a contract of bailment, whereby defendant undertook for a consideration to paint a 1948 Stinson Sta-tionwagon (an airplane) in the vicinity of Robertson County, of the cash market value of THREE THOUSAND FIVE HUNDRED and NO/lOO ($3,500.00) DOLLARS. Thereafter, by reason of the carelessness and negligence of the defendant in carrying out the painting job, plaintiff would show that the airplane was totally destroyed by fire to plaintiff’s damages in the amount of THREE THOUSAND FIVE HUNDRED AND NO/100 ($3,500.00) DOLLARS, (parenthesis ours).
“ * * * that defendant was guilty of certain acts of omission and commission which taken together or separately, constitute negligence, and that such negligence was the proximate cause of plaintiff’s damages:
“1. That defendant was negligent in drying the paint on the said Stinson aircraft with a lamp in such close proximity that the aircraft caught fire.
“2. In failing to take proper precautions to extinguish the fire after the fire had commenced.
“3. In attempting to hasten the drying process of the paint with a. lamp while the same should have been allowed to dry without any heat from an artificial source.”

The contract was oral. Defendant went to trial on a general denial.

The Court, in its Charge to the jury, submitted 15 Issues.

Pertinent to this discussion the jury found that immediately prior to the fire-West heated the plane with a lamp, but that such was not negligence; that West’s leaving the plane while he was doping and heating it was not negligence; that West left, the plane unattended while he was heating and doping it with electric lamps, but found that such action was not negligence; that West failed to cut off the master switch on-the airplane while he was away from the plane, but that such failure was not negligence ; that at the time of the fire West did' not fail to have a functioning fire extinguisher present on the premises, and fixed the market value of the airplane immediately before the fire at $775.00.

In the judgment we find this recital:

“ * * * that on the 12th day of February, 1964 * * * plaintiff * * filed * * * Motion for Judgment Non Obstante Veredicto on the ground that the jury’s answer to Special Issue No. 2, Special Issue No. 3, Special Issue No. 4, Special Issue No. 7, Special Issue No. 8 and Special Issue No. 10 (these being the negligence issues) were not supported in the evidence and were against the great weight and preponderance of the credible evidence, and on the further ground that the undisputed evidence showed that the transaction in question was a bailment for mutual benefit and that under such bailment where goods have been committed to a bailee and have been lost or returned in a damaged condition that the bailee’s liability depends on negligence and that such liability it presumed * * * and being of the opinion that the evidence raised no issue of fact other than damages, and that a directed verdict for plaintiff would have been proper on the issue of negligence, * * (Parenthesis ours.)

The Court granted the motion and awarded judgment for plaintiff for the sum of $775.00.

Appellant’s Point 1 is:

“The court erred in granting appellee’s motion for judgment non obstante vere-dicto on the ground that the evidence raised no issue of fact, other than damages, and that a directed verdict for appellee would have been proper on the issue of negligence.”

Appellee’s Counter-Points 1 and 2 are to the effect:

“1. * * * that the verdict of the jury on some of the various negligence issues was against the overwhelming weight of the evidence ;
“2. * * * that this being a mutual benefit bailment, a general presumption of negligence on part of the bailee existed in this case.”

There were no exceptions to the Court’s Charge; nor did appellee file any cross-assignments.

We believe the pronouncements by our Supreme Court in Trammell v. Whit-lock, 150 Tex. 500, 242 S.W.2d 157, and the cases there cited, announce the rule to be applied in the disposition of this cause. We direct particular attention to the cases of Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133, and Mustang Aviation, Inc. v. Ridgway, Tex.Civ.App., 231 S.W.2d 677, er. ref. Our Supreme Court in Trammell v. Whitlock, supra, was dealing with a common law bailor and bailee contract. In announcing the rule the Court said :

“The liability of the defendant-petitioner accordingly must rest on his failure to exercise reasonable care for the bailed article, as in the usual case of a bailment for mutual benefit.”

That is the exact situation here. The Court further said:

“If, assuming the fact of bailment, the evidence still presented a fact question of negligence, then the mere finding of a bailment would not support a judgment for the plaintiff bailors; but if, on the same assumption, the record compelled the conclusion of negligence, judgment should have been rendered in the trial court for the plaintiff-respondents, * * *.
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“The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, * * *.
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“ * * * ‘The presumption on which the bailor may rely is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it, but it does no more; once he has done so, it disappears from the case. Thus, it can never concern the jury5.
“The rule is recognized in decisions such as Exporters’ & Traders’ * * and Mustang Aviation, Inc. * * *, which held the presumption to disappear or not to exist, when there was evidence indicating the article to have been destroyed in a conflagration and there was no evidence other than the bare fact of a fire to suggest negligence on the part of the bailee. These decisions may be regarded as law in this state in so far as the language of the opinions is limited to the facts involved.”

In the Schulze case, supra, which was a common law bailment case, we find the following statement:

“We have been cited to no case by the Supreme Court of our state wherein this question has been decided, and in the absence of such case we shall adopt that principle supported by the great weight of authority, and hold that, when the warehouse company showed that the cotton had been destroyed by fire, it then relieved itself of showing that the fire was not caused by its negligence, but that the burden then rested on the plaintiff to show that the fire was the result of the negligence of the warehouse company or its employees, and, the plaintiff having wholly failed to produce any evidence that the fire was the result of the negligence of the defendant warehouse company, the defendant was entitled to the peremptory instruction requested by it.”

In the case at bar the plaintiff grounded his right to relief on the theory that the bailee had been guilty of negligence in three distinct particulars, and the case was tried on that theory and the jury acquitted the plaintiff of all negligence in each respect charged.

Since our Supreme Court gave a straight out refusal to the Mustang case, supra, we quote from the rule there stated:

“ * * * in suits on contracts of bailment for hire, where the property is lost or damaged by fire or theft, no presumption of negligence is imputed to the bailee, and that the burden of proof to show bailee’s negligence resulting in such loss or damage, rests-on the bailor. * * * Negligence in fire, theft, storm or accident cases, is-never presumed, and the mere happening of damage by such means is no evidence of negligence.”

Our Supreme Court in the Whitlock case-did not modify or change the above statement of the rule. The rule above stated has been necessarily and consistently followed by our Appellate Courts. See-Stringer v. Yarbrough, Tex.Civ.App., 378 S.W.2d 416, n. r. e.; Falls Church Air-park v. Mooney Aircraft, Inc., 254 F.2d 920, pt. page 923; Texas City Terminal Ry. Co. v. American Equitable Assurance Co. of N. Y., 130 F.Supp. 843, pt. 15, page 863.

In the case at bar the plaintiff’s original' petition on which he went to trial showed' that this suit was grounded on a common law bailment contract and that the plane-bailed had been destroyed by fire, and under his pleadings and under the applicable law here cited, he assumed the burden of' showing that defendant failed to exercise ordinary care and was, therefore, guilty of negligence, and that such negligence was the proximate cause of his loss. In his efforts-to carry the burden he testified and called four other witnesses, among them being the-defendant whom he tendered under the adverse party rule. Plaintiff’s first witness was Mr. McCarver, City Manager, of Hearne, who testified to the effect that he-was in his office when the general alarm of the fire department sounded, and that he-went immediately to the airport, and when he got there the hanger in the airport was: completely engulfed in flames; that the-fire department had arrived prior to his arrival; that the airplane was a total loss ; that he had a talk with defendant West while the fire was in the process of burning,, and testified in part, specifically:

“Q. Did you have occasion to ask him what caused the fire?
“A. I don’t recall whether I asked him, hut I know in the process of our conversation he told me what he thought caused it
“Q. * * * would you tell this court and jury what he said caused that fire?
“A. If I recall right, he said that he was in the process of painting this plane and had put some heat lamps of some description, which I didn’t see, to kind of speed up the process of drying this plane, this paint job that he was doing.
"Q. What, if anything happened after he put the lamps on it?
“A. I don’t know. I just know that the building was on fire when I got there.
“Q. * * * did he mention anything about being called out of the building while the plane was drying?
“A. I believe he told me that after he had put the lamps in place that he was called out of the building for some purpose, I don’t know, what, and then the next thing he knew the building was on fire.
* * * * * *
“Q. * * * you said that Mr. West told you that he thought the fire had been caused by leaving the lamps left on close to the plane or in proximity of the plane?
“Q. I don’t recall him saying that actually caused the fire, but he told me that was what he was doing prior to the fire starting. He had put the lamps there. I don’t recall him stating he knew that caused the fire or not, but he did say that was what he was in the process of doing.”

Defendant West testified to the effect that he was an airport manager, and was a pilot and mechanic and inspector, and that he received the airplane for the purpose of inspection and to repair the plane; that he was to do all the necessary repair and inspection as to what they call a periodic inspection for continuation of the air worthiness certificate. He testified in part:

“Q. I want you to tell that jury what your present testimony is in regard to the cause of that fire?
“A. My present testimony is I don’t know what caused it. I had been working on the electrical system, had checked over the outside, the external appearance of the engine. I went to the battery and checked it over, cleaned it up,, put the battery cover back on,, and was in process of checking the function of the electrical system, the lights are the principal things, instrumental panel and things that operate electrically.
“Q. Were you called out of the hanger at that time ?
“A. Yes.
“Q. What caused you to leave the hanger ?
“A. I’m not too sure. I could have been gone for a certain toll or it could have been the telephone. My immediate composure and chain of thought were so disrupted when I came back, I don’t remember what happened — I mean I don’t remember the immediate thing.
“Q. Is it your present testimony that immediately prior to the fire made the basis of this action, you were not drying paint on that airplane with an heat lamp?
“A. I know now that I was not.
“Q. Well, now, you have heard these gentlemen testify that you told them that you were. Have you changed your mind since you talked'I with them?
“A. Yes. But it was in this nature: It is not because drying the dope was anything reckless or any denial that I used that process. I could have been using it at that time. Those are necessary processes. But extreme excitement at the time, and mostly I was concerned with saving the airplane and saving what I could, and I gave no thought to the immediate thing except the memory that was so fixed in my mind when I am using lights. There are so many precautions to be made that it makes you more or less nervous and conscious of it and you have to be very careful because there are unforeseen things that happen.
“Q. Lights can cause the fabrics to flare up and burn up an airplane, can they not?
“A. No, not unless someone strikes them and forces the light against it or else the light had been put too close, which I certainly did not do.
“Q. You wouldn’t say then that in the event the heat lamp is too close to the airplane the airplane couldn’t catch fire and burn, would you?
“A. You could get it too close, yes sir.
"Q. Let’s go on to the fire extinguishers. Did you have fire extinguishers available to you?
“A. I did, yes sir.
“Q. Were they functioning at this time?
“A. They were.
“Q. Now, you just heard these gentlemen testify that you told them that they were not. Are they mistaken ?
“A. They were mistaken.
“Q. You didn’t ever say that or you didn’t have a fire extinguisher?
“A. I didn’t say either one.
“Q. What did you say?
“A. I said the fire extinguisher was in the shop.
“Q. Where was the shop?
“A. It’s just adjacent, I guess about six feet from the airplane.
“Q. Was it working properly?
“A. It was.
“Q. Why didn’t you use it?
“A. When I came out to the airplane and saw flame on top of two gas tanks and from three or four hose connections on the fuel line, I realized that there wasn’t anything that could save that airplane. It was already lost and nothing could put the fire out, not one man. If you had a whole fire department with a fog truck, they might. But not me with one fire extinguisher. The one thing I could do was to save two airplanes that had considerable value, and that’s what I did.
“Q. You made mention of one fire extinguisher. Did you have small extinguishers available to you?
“A. Yes.
“Q. Where were they?
“A. I don’t recall right now where they were. They were somewhere about the front of the place there, a shed or office that I used. They were not burned. But they would have been useless. Ten men with fire extinguishers couldn’t have handled it, not pyrene.
“Q. Did you leave the master switch on that energizes these electrical circuits, at the time you either went to answer the telephone or get the tool?
“A. I believe I did.
“Q. Could or might that cause a fire in the aircraft?
“A. It could.
“Q. It is customary when storing the aircraft or leaving the aircraft for any purpose to turn the master switch off?
“A. I would say so for storing. For service, it is frequently left on during the whole working day.
“Q. Do you know where those Pyrene fire extinguishers were at the time of the fire?
“A. I do not.
“Q. Mr. West had you been using a light to dry dope or paint on the aircraft prior to the fire ?
“A. I had.
“Q. But your testimony is that on the day of the fire you weren’t using any lamp, is that correct ?
“A. That is correct.” (Emphasis added.)

Roy Trippi testified to the effect that he is an agricultural pilot, and an aircraft mechanic, and that he has a license issued by the Federal Aviation Agency; that he worked as a pilot in the summertime, and in the winter he worked as a mechanic from the time that he left the Air Force in 1956, until the present time; that he worked about fifty-fifty as a mechanic and pilot. He testified in part specifically:

“Q. Were you at the Hearne Airport on Thanksgiving afternoon, the day before the fire?
“A. Yes, sir.
“Q. What was Mr. West doing at that time?
“A. When I observed he was patching the left wing on the airplane in question.
“Q. How long were you there?
“A. I would estimate two or three hours.
“Q. What time did you leave?
“A. Well, as near as I can remember, it was just before dark. At that time it was between five and six o’clock.
“Q. Did Mr. West leave with you?
“A. As near as I can remember he left at the same time.
“Q. What was he doing immediately preceding the time you left?
“A. He was applying dope to one of these patches on the left wing of the airplane.
“Q. What was the weather condition at that time ?
“A. It was cold. It was too cold for natural drying of dope.
“Q. Would it have been necessary to apply artificial heat in order to dry the dope ?
“A. Yes, sir.
“Q. How far away was the light that you observed, from the fabric, on that afternoon?
“A. I would say approximately twenty-four inches.
“Q. Is it usual and customary to use lamps or other artificial heat, when the atmospheric conditions are such that the dope won’t dry under natural conditions?
“A. Yes, sir.”

So, we come back to Point 1, which is to the effect that the Court erred in granting appellee’s motion for judgment non obstante veredicto on the ground that the evidence raised no issue of fact, other than damages, and further held that a directed verdict would have been proper. The decision on the foregoing question has given us much concern, and we have given much consideration to the testimony and the applicable law, and after so doing we are of the view that we cannot say as a matter of law that there was no evidence or insufficient evidence tendered to support the jury’s verdict acquitting the defendant of negligence.

We have previously underscored the following Question and Answer thereto by defendant West:

“Q. But your testimony is that on the day of the fire you weren’t using any lamp, is that correct?
“A. That is correct.”

As we understand the rule in Texas it is, where you have a jury the trial court cannot decide what witnesses are credible or incredible. That is the function of the jury. In Olds v. Traylor, 180 S.W.2d 511, w. ref., pts. (8, 9), we find this rule as to a directed verdict:

“Where the facts are controverted, or are such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and ■consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised ‘if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.’ ”

Our Supreme Court has not seen fit to modify or change that rule. See Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, pt. 2, Sp.Ct.; See also White v. White, 141 Tex. 328, 172 S.W.2d 295, pts. 1-5, Sp.Ct. See also Texas L.Rev., Vol. 38, April 1960, p. 368, Article by Chief Justice Calvert, entitled, “No Evidence” and “Insufficient Evidence”:

“1. When the only point of error is a ‘No Evidence’ Point
“If the only point of error in a brief in a Court of Civil Appeals is a ‘no evidence’ point, the court may, of course, either overrule it or sustain it.
“If the point is overruled the court must affirm. The court cannot, after concluding that there is evidence to support a finding of a vital fact, reverse the judgment and remand the cause for further development of the evidence, because the case was tried on a wrong theory, or because a retrial would better serve the ends of justice. The reason the court may not do so is that it may not reverse an errorless judgment.
“If the court sustains a ‘no evidence’ point, its normal course is to render judgment for the appellant because that is the judgment the trial court should have rendered. It should not remand for the sole purpose of affording the appellee ‘another bite at the apple’ ”.

Appellant’s Point 1 is sustained. See opinion of Supreme Court in Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607, and cases there cited. See also Franke v. Cheatham, 157 Tex. 397, 303 S.W.2d 355, Sp.Ct.; Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, Sp.Ct.

Under the foregoing view it is our duty to reverse and render this cause. Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    J. G. GROVES, Appellant, v. N. C. SAWYER, Appellee.
    No. 3933.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 20, 1964.
    Rehearing Denied Dec. 4, 1964.
    Perkins, Floyd, Davis & Oden, Alice, for appellant.
    David A. Grose, Alice, for appellee.
   GRISSOM, Chief Justice.

J. G. Groves sued N. C. Sawyer for $542.63, alleged to be the balance due for work and material furnished by Groves in constructing a motel for defendant. Sawyer answered that after Groves had completed his contract and presented Sawyer with said claim, which Sawyer disputed, Sawyer executed and delivered to Groves his check for $269.25, writing on the reverse side above the place for Groves’ endorsement: “Payment in full for all labor and material and in full settlement for contract performed by me on the property known as Sands Motel * * *. The acceptance of this check acknowledges settlement in full”; that (1) the check was tendered to Groves in full settlement of his disputed claim and that Groves accepted and cashed the check in full satisfaction and discharge of his cause of action; (2) that Groves retained the check for nearly five months and then on October 28, 1963, returned it to Sawyer, who sent it back to Groves on the day he received it, stating that it was being returned because Sawyer had tendered it in full payment of Groves’ claim and Groves had accepted and retained it for nearly five months and, therefore, there was an accord and satisfaction; that plaintiff again, on November 1st returned the check to defendant, who promptly returned it to plaintiff with the statement that it was not being returned to him as part payment of Groves’ claim but that it had theretofore been tendered to and accepted by plaintiff in full settlement by retaining the check for five months and, further, that thereafter Groves endorsed the check, scratched out the condition placed thereon by Sawyer, cashed it and kept the money, and there was an accord and satisfaction of plaintiff’s claim.

Sawyer filed a motion for summary judgment supported by affidavits and correspondence between the parties showing the facts alleged by him. Plaintiff answered that there was a genuine issue as to a material fact; that Groves had delivered the uncashed check to his attorney with the instruction that he would not accept it as full payment of his claim and that the correspondence attached to defendant’s motion showed that the check was cashed only as part payment, not in full settlement, of plaintiff’s claim and that the question whether plaintiff accepted the check in satisfaction of plaintiff’s entire claim was one of fact. The court sustained defendant’s motion and entered judgment accordingly. Groves has appealed.

Appellant contends the court erred in holding there was an acceptance of the check by retention thereof for five months. This point will not be further noticed because, although it was alleged as one of appellee’s defenses, Sawyer concedes that it merely raised a question of fact and therefore, of itself, is insufficient to support the summary judgment. But, appellee says .summary judgment was required because it is undisputed that Groves cashed the check tendered to him upon condition that he accept it as full payment of his claim.

Defendant’s motion, the attached correspondence and affidavits disclose a bona fide dispute as to the correctness and liability of defendant for plaintiff’s unliqui-dated claim, a tender of defendant’s check for a lesser amount than claimed by plaintiff upon condition that it be accepted as full payment and that, knowing that condition, plaintiff accepted the check, cashed it and retained the proceeds. (See Franklin Insurance Company v. Villeneuve, 25 Tex.Civ.App. 356, 60 S.W. 1014, 1016; Burgamy v. Davis, Tex.Civ.App., 313 S.W.2d 365, 368; 1 Tex.Jur. 273.) Groves thereby bound himself to accept the money he obtained by cashing appellee’s check as full payment of his claim. It is immaterial that at the time he cashed the check he scratched out the condition placed thereon by appellee to the effect that it was full payment of all appellee owed appellant. Appellant could not avoid being bound by scratching out such condition when he cashed the check. Where " * * * there is a bona fide dispute as to the correctness of an account, and the debtor tenders his check to the creditor on condition that it be accepted in full payment, the creditor must either refuse to receive the check, or accept it burdened with its attached condition.” 1 Tex.Jur.2d 232. Also see Hines v. Massachusetts Mutual Life Insurance Company, Tex.Civ.App., 174 S.W.2d 94.

In Root & Fehl v. Murray Tool Company, Tex.Com.App., 26 S.W.2d 189, 75 A.L.R. 902, it was held that a creditor who accepts and cashes a check tendered as full payment of a disputed claim cannot vary the legal effect of such acceptance as an accord and satisfaction by protesting that he is accepting the check as part payment only. In 75 A.L.R. 916 the statement is made that, generally, where a claim is unliquidated or disputed and, remittance of an amount less than that claimed is sent to the creditor with a statement that it is in full satisfaction of his claim, and such tender is accompanied by acts or declarations that amount to a condition that, if the remittance is accepted, it is accepted in full satisfaction of the disputed claim and the creditor is aware of the condition, acceptance constitutes an accord and satisfaction, although the creditor protests at the time that the amount is not accepted in full satisfaction. The substance of that rule is again stated to be the law in 13 A.L.R.2d at page 736.

In Texas & Pacific Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592, the court peremptory instructed a verdict for the defendant. The sole question presented to the Supreme Court was whether Poe, who claimed to have been injured while in the employment of the defendant, might settle his cause of action by accepting and cashing a draft which recited that it was in full settlement of his injuries and then maintain a suit for such injuries. The Supreme Court answered the question, “no”. It said, in answer to Poe’s contention that a question of fact was raised, “There are other barriers which are insuperable to his recovery. Admitting that Poe signed only a receipt for the draft, the fact remains unchallenged that he received the draft for an amount in excess of his time, and that the draft contains plain and unmistakable words that it was in full and complete settlement of his injuries. The draft also bore on its reverse side, where Poe was to endorse same, the further notice: ‘Read before endorsing.’ The evidence is undisputed that he kept the draft in his possession for several days, and that he had ample opportunity to read it and understand its contents. He then cashed the draft and retained the proceeds thereof.

******

“The basis of the railway company’s defense to Poe’s claim in this suit is not narrowed merely to the release signed by him, but such defense also rests on the draft accepted and cashed by him. Under the state of this record, Poe was concluded from a recovery against the railway company by the acceptance and cashing of the railway company’s draft and the retention of the proceeds.”

The Supreme Court made the same holding in Missouri, K. & T. R. Co. of Texas v. Morgan, Tex.Com.App., 210 S.W. 512, 514. See also Early-Foster Co. v. W. F. Klump & Co., Tex.Civ.App., 229 S.W. 1015; Burgamy v. Davis, Tex.Civ.App., 313 S.W.2d 365, 368 and Tarrant Wholesale Drug Co. v. Kendall, Tex.Civ.App., 223 S.W.2d 964.

We conclude that all prerequisites for application of the stated rule are apparent in the record. The court correctly held that appellant, by cashing appellee’s check, knowing it was tendered upon condition that it be accepted as full payment of appellant’s claim, is bound thereby and he cannot maintain this suit for the balance claimed to be due. Industrial Life Insurance Company v. Finley, Tex.Sup., 382 S.W.2d 100.

The judgment is affirmed.