author: CALVERT, Chief Justice. POPE, Justice

text:
    C. & R. TRANSPORT, INC., et al., Petitioners, v. Brinkley CAMPBELL, Respondent.
    No. A-11076.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied Oct. 5, 1966.

      Kenley & Boyland, Longview, for petitioners.
    Gordon R. Wellborn, Rex Houston, Henderson, Fred Erisman, Longview, for respondent.
   CALVERT, Chief Justice.

The trial court rendered judgment awarding plaintiff, Brinkley Campbell, $13,507.84 for personal injuries and property damage sustained when his pickup truck was hit from the rear by a truck owned by defendant, C. & R. Transport, Inc., and driven by James H. Robbins. The Court of Civil Appeals affirmed. 393 S.W.2d 727. We reverse the judgments of the courts below and remand the cause to the trial court for a new trial.

Both vehicles were traveling in an easterly direction on U. S. Highway 80 before the collision. The case was tried to a jury, and several special issues were submitted inquiring into the conduct of the parties preceding the collision. In response to certain of the special issues, the jury found from a preponderance of the evidence that (1) “at the time, place, and on the occasion in question” Robbins failed to keep a proper lookout, which (1A) was a proximate cause of the collision, and (14) “at the time, place, and on the occasion in question” Campbell “failed to keep a proper lookout” which (14A) was a proximate cause of the collision. The jury failed or refused to find that either Robbins or Campbell was guilty of any other act or omission which was negligence and a proximate cause of the collision. The jury’s answers to Special Issues Nos. 14 and 14A, if supported by evidence of probative force, would normally have required a judgment that plaintiff take nothing; but the trial court, on plaintiffs motion, disregarded the jury’s answers to the issues for the recited reason that they had no support in the evidence, and rendered judgment for the plaintiff.

The trial court’s action in disregarding the jury’s answers to issues 14 and 14A on the ground that they had no support in the evidence was attacked by the defendant by proper points of error in the Court of Civil Appeals. That court approved the trial court’s action on a somewhat different theory; it held that the answers to the issues were properly disregarded because of the jury’s answer to Special Issue No. 15. Both theories for disregarding the answers are challenged by proper points of error in this Court. The trial court’s theory will be examined first. Its examination requires a brief review of relevant evidence.

Highway 80 is a four-lane highway which lies in an easterly and westerly direction, with two lanes for east-bound and two lanes for west-bound traffic. The collision occurred at approximately 11:00 o’clock, a. m., on a clear dry day.

The plaintiff testified that he was driving in the south lane of east-bound traffic at a speed of about 35 miles per hour when “all at once there was an explosion;” that the next thing he knew he was in the hospital; that at no time was his vehicle on the shoulder of the highway. The “explosion” to which the plaintiff referred occurred, as established by the testimony of Robbins, when the pickup was struck from the rear by defendant’s truck. If that were all of the testimony concerning the collision, there would be no evidence supporting the jury’s answers to Special Issues 14 and 14A. The evidence would not support a finding that the plaintiff owed a duty to look to the rear for approaching vehicular traffic which was breached by his failure to do so, or that his failure to look to his rear was a proximate cause of the collision. See Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481 (1961), writ refused, no reversible error; Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308 (1940), writ dismissed.

But the testimony of the plaintiff is not the only testimony bearing on the issues. To test whether the trial court erred in holding that the answers to the issues have no support in the evidence, we must consider only the evidence and the reasonable inferences therefrom which support the answers. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W. 2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). This brings us to a summary of the testimony of Robbins, driver of defendant’s truck.

Robbins testified that while he was traveling in the south lane of east-bound traffic, he reached the crest of a hill in the highway and started down-grade some 450 or 500 feet from the place of collision; that he recalled seeing the plaintiff’s vehicle for the first time when he was within 150 to 200 feet of it, at which time the vehicle was being driven from the improved shoulder into the south lane of the highway at a slight angle, with the right rear wheel still on the shoulder. He testified further that he applied his brakes and tried to miss the pickup by pulling in the direction of the north lane of east-bound traffic but hit the left-rear corner of the vehicle.

We hold that the testimony of Robbins supports the jury’s answers to issues 14 and 14A. From the testimony the jury could reasonably have inferred that the plaintiff’s pickup had been on the shoulder of the highway and was being driven by the plaintiff from the shoulder into the south lane of traffic without looking to see if vehicular traffic was approaching from the west in the south lane; that a reasonably prudent person exercising ordinary care for his own safety and the safety of others using the highway would have looked to the west before driving from the shoulder into the traffic lanes; that had the plaintiff done so he could have seen the approaching truck and have avoided the collision by waiting until the way was clear.

We now consider the theory on which the Court of Civil Appeals held that the answers to issues 14 and 14A were properly disregarded.

Special Issue No. IS is the first of a cluster of four issues designed to submit a separate act of negligence on the part of the plaintiff. The issue and the jury’s answer thereto are as follows:

“Do you find from a preponderance of the evidence that immediately prior to the collision in question, the Plaintiff, Brinkley Campbell, drove his pickup truck from the shoulder of the highway onto the highway?
“Answer ‘yes’ or ‘no’.
“ANSWER: No.”

Special Issues Nos. 15A, 1SB and 15C were the other issues in the cluster. 15A inquired whether Campbell drove his pickup from the shoulder onto the highway when it could not be done in safety; 15B inquired whether such conduct was negligence, and 15C inquired whether such negligence was a proximate cause of the collision. None of these issues was answered because the duty of the jury to answer them was by the court’s instructions conditioned on an affirmative answer to Special Issue No. 15.

The Court of Civil Appeals treated the negative answer to issue 15 as a finding by the jury, that the plaintiff did not drive his pickup from the shoulder of the highway onto the highway immediately prior to the collision. That is a misinterpretation of the issue and the answer. Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff did drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact. See Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564, 565, holding approved, Ashley v. Usher, Tex.Sup., 384 S.W.2d 696, 697 (1964). The Court also erred in holding that the answers to issues 14 and 14A were correctly disregarded because of the answer to issue 15. A jury’s answer to a special issue may be disregarded only when it has no support in the evidence or when the issue is immaterial. Rule 301, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice, §§ 17.30-17.32. McDonald correctly states that “[a] special issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings,” § 17.31; but he is equally correct when he states that “ * * * if a finding upon the issue claimed to be immaterial could if made, or does as made, create a fatal conflict with other findings or otherwise affect the legal significance of the verdict and hence the judgment to be entered, the issue is material and must not be ignored.” § 17.31. A trial court thus has no authority because of other apparently conflicting jury findings to disregard a finding with legal significance which has support in the evidence. Moreover, the court may not look to answers to other issues for the purpose of determining whether an answer to a particular issue has support in the evidence. T. & N. O. R. Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848 (1932), writ refused; Davis v. Estes, Tex.Com.App., 44 S.W.2d 952 (1932); Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744 (1929), no writ history.

What we have here is apparently conflicting findings, although neither party so contends or has sought a mistrial on that ground. Both parties seek outright victory. As indicated, plaintiff has thus far successfully sought to have the answers to issues 14 and 14A disregarded and judgment rendered in his favor. Defendant has consistently asserted, and asserts here, that the conflict is apparent only, and that the findings can be reconciled by proper rules of construction. We agree with the defendant.

The trial judge defined the term “proper lookout” in his charge to the jury in usual terms, as follows: “You are instructed that by ‘proper lookout’ as used in this issue is meant such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances.” When the jury found from a preponderance of the evidence that “at the time, place, and on the occasion in question” the plaintiff “failed to keep a proper lookout,” it necessarily found that the plaintiff had a duty to keep a lookout for dangers which might reasonably have been anticipated, De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 99 (1955), and a breach of the duty. If the jury believed that the plaintiff drove his pickup from the shoulder onto the highway, it was well within its province in finding that before doing so he owed a duty to look to his rear for vehicles approaching from the west and failed to do so. But the answer to issue 15 discloses that the defendant failed to convince the jury by a preponderance of the evidence that the plaintiff drove his pickup from the shoulder onto the highway “immediately prior to the collision.”

It is our duty to reconcile apparent conflicts in jury findings whenever reasonably possible. Texas & Pacific Railway Co. v. Snider, 159 Tex. 380, 321 S.W. 2d 280, 282 (1959); Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949). Even if the answer to issue 15 were treated as a positive finding that the plaintiff did not drive onto the highway immediately before the collision, the finding does not preclude a finding, included in the answer to issue 14, that he drove from the shoulder onto the highway at some time after the defendant’s truck came over the crest of the hill, and when by keeping a proper lookout he could have avoided the collision by remaining on the shoulder until the way was clear. Webster’s Third New International Dictionary defines the word “immediately” as “without interval of time.” The jury could reasonably have concluded from the testimony of Robbins that the plaintiff did not drive onto the highway immediately before the collision, but that he drove onto the highway when there was yet an interval of time remaining in which by keeping a proper lookout the collision could have been avoided. Thus reconciled, the findings are not in fatal conflict and both can be permitted to stand.

Under the provisions of Rule 505, Texas Rules of Civil Procedure, the holdings made would normally require a reversal of the judgments of the courts below and rendition of judgment that the plaintiff take nothing. However, the same Rule authorizes us, upon reversing the trial court’s judgment to remand instead “if it shall appear that the justice of the case demands another trial.” We have concluded that the justice of the case justifies a remand.

Our reconciliation of the answers to issues 14 and 15 obviously rests on a narrow and somewhat speculative basis. We have no way of being certain of the jury’s thought processes or of its intention in giving its answers to the two issues. If either party had sought a mistrial on the basis of conflict in the answers, the trial court would have been justified in ordering a mistrial under authority of our holding in Texas Employers’ Ins. Ass’n v. Collins, 156 Tex. 376, 295 S.W.2d 902 (1956). Moreover, there are other jury findings indicating a misunderstanding by the jury of the court’s charge. The jury found that immediately prior to the collision the manner in which the plaintiff was operating his pickup on the highway was a hazard to vehicles traveling east thereon but that such conduct was not negligence; and in spite of a finding that Robbins failed to keep a proper lookout at the time, place and on the occasion in question, the jury further found that at the time, place, and on the occasion in question he was acting in an emergency, which the court had defined to mean a condition arising suddenly and not caused by any negligent act or omission on his part.

The judgments of the courts below are reversed, and the cause is remanded to the trial court for a new trial.

Costs are assessed one-half to the plaintiff and one-half to the defendant.

POPE, GRIFFIN, SMITH and NOR-VELL, JJ., dissenting.

POPE, Justice

(dissenting).

I respectfully dissent. The judgment of this Court imposes a duty upon the lead driver to keep a lookout to the rear under circumstances that the law does not recognize. Campbell was in the lead proceeding in an easterly direction and was followed by defendant Transport’s truck. The jury found that (1) defendant’s driver, Robbins, failed to keep a proper lookout and (2) the failure was a proximate cause of the collision. The jury found on the contributory negligence issues that (3) plaintiff, Campbell, failed to keep a proper lookout, (4) which was a proximate cause of the collision. The term “proper lookout” was defined as such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances. The jury refused to find that (5) immediately prior to the collision plaintiff, Campbell, drove his pickup truck from the shoulder onto the highway and (6) left unanswered the conditionally submitted issues on negligence and (7) proximate cause.

In my opinion the majority has confused the problem of “no evidence” to support a finding with the real problem of immaterial findings. The trial court disregarded the findings on issues numbered three and four above because there was no evidence to support them. The Court of Civil Appeals affirmed the judgment because those findings were immaterial.

Under the long-standing general rule in Texas, the lead driver is under no duty to keep a lookout for traffic which approaches from the rear. Jones v. Downey, 359 S.W.2d 116 (Tex.Civ.App.1962, writ ref. n. r. e.); Solana v. Hill, 348 S.W.2d 481 (Tex.Civ.App.1961, writ ref. n. r. e.); Kuykendall v. Doose, 260 S.W.2d 435 (Tex.Civ.App.1953, writ ref. n. r. e.); Bass v. Stockton, 236 S.W.2d 229 (Tex.Civ.App.1951, no writ); Le Sage v. Smith, 145 S.W.2d 308 (Tex.Civ.App.1940, writ dism. judg. cor.). The exception to that general rule is that a duty to look to the rear arises when the lead driver does something such as changing his lane or direction, stopping, or suddenly decelerating. Article 6701d, § 68, Vernon’s Ann.Tex.Civ.St.; Berry v. Sunshine Laundries & Dry Cleaning Corp., 387 S.W.2d 948 (Tex.Civ.App.1965, writ ref. n. r. e.); Riles v. Reichardt, 366 S.W.2d 655 (Tex.Civ.App.1963, no writ); Scott v. McElroy, 361 S.W.2d 432 (Tex.Civ.App.1962, writ ref. n. r. e.); Jones v. Downey, supra; Valley Film Service v. Cruz, 173 S.W.2d 952 (Tex.Civ.App.1943, writ ref. w. o. m.); Le Sage v. Smith, supra.

As the majority opinion correctly states, there was evidence both ways on whether Campbell, the lead driver, drove from the shoulder of the highway. Campbell denied that he drove from the shoulder and steadfastly contended he was driving straight ahead. Transport’s driver asserted that Campbell drove from the shoulder onto the highway immediately ahead of Transport’s truck. That was the battleground in the trial court, and upon its determination by the fact finder depended the duty vel non of the lead driver to look to the rear. We have no similar problem in ordinary lookout issues.

I have some difficulty understanding this expression in the majority opinion about finding number IS, numbered five in this dissent: “Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff did drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact.” Surely it was the defendant’s burden to prove contributory negligence. 3 McDonald Tex.Civil Practice 1117, § 12.21. Mere proof that the lead driver failed to look to the rear did not discharge that burden. Proof that the lead driver drove from the shoulder onto the highway in front of a trailing driver without keeping a proper lookout would have discharged that burden. Applied to this case, Transport tried but failed to convince the jury of the circumstance upon which it relied which would give rise to Campbell’s duty to look to the rear.

This is not a case of no evidence of a circumstance which required Campbell to look to the rear. Because there was evidence and it was disputed, and because the jury refused to find the existence of the circumstance which defendant had to prove did exist, the defendant failed to prove a duty to keep a lookout to the rear. In a number of cases, the presence or absence of such a circumstance was established by undisputed evidence and a jury issue was unnecessary. Berry v. Sunshine Laundries & Dry Cleaning Corp., supra; Jones v. Downey, supra; Bass v. Stockton, supra; Valley Film Service v. Cruz, supra; Le Sage v. Smith, supra. In other cases, where facts about lookout to the rear which would impose a duty were disputed, courts have looked to jury findings to settle the facts. With the facts settled, the courts then knew what duty the lead driver owed the trailing driver. Riles v. Reichardt, supra; Solana v. Hill, supra; Edwards v. Houston Transit Co., 342 S.W.2d 787 (Tex.Civ.App.1960, writ ref. n. r. e.); Kuykendall v. Doose, supra. In all of the cited cases, the circumstance which would impose the duty to look to the rear was settled either by undisputed evidence or by a fact finding.

In Solana v. Hill, supra, Hill was the lead driver. As in this case, the jury found that he failed to keep a proper lookout, which would be to the rear, and that the failure was a proximate cause of the accident. In separate clusters of issues, however, the jury found that Hill was not stopped on the highway and “immediately prior to the collision [Hill] did not rapidly decrease the speed of his automobile on the highway.” The language of the issues is remarkably similar to that used in the issues in this case. The trial court looked at all of the findings and concluded that the one charged with the burden had failed to prove a circumstance which would impose a duty upon the lead driver to look to the rear, saying:

“As shown, the jury found that Hill did not stop on the highway and that he did not rapidly decrease his • speed on the highway, as plaintiff alleged. The only finding of negligence was that Hill failed to keep a proper lookout to the rear. * * * The court disregarded said findings upon the theory that, under the circumstances shown, as a matter of law, Hill had no duty to keep a lookout for cars traveling behind him. We think this was correct.”

The Court reached this result, not because there was no evidence of any circumstance requiring the lead driver to look to the rear, but because other specific findings of the jury rendered the lookout finding immaterial. There was no duty to look to the rear.

It is my opinion that the refusal to find the existence of the circumstance which would require Campbell, the lead driver, to look to the rear, logically and legally excused that driver from looking to the rear. The only remaining basis for such a duty is the finding that Campbell failed to keep a “proper lookout.” The argument and the result of the majority opinion substitutes the reasonable prudent man test for the correct legal standard. It empowers a jury to impose a duty to keep a lookout to the rear though all the jurors believe that the lead driver did not stop, did not slow down, did not change lanes or direction, or did not drive from the shoulder onto the highway. A jury might suppose that all ordinary prudent drivers must look behind as well as ahead under all circumstances; otherwise, the Court would not have asked the question. When we look only to the jury’s finding on “proper lookout” we can not know factually whether any circumstance existed which required him to look to the rear. The issue and the answer are ambiguous. When we look to the specific issue that submitted the only factual circumstance which would impose the duty, we have an answer that undermines Transport’s theory of a duty owed by Campbell. The finding that Campbell failed to keep a “proper lookout” was immaterial. When we look at the whole verdict, it means that Transport’s driver negligently failed to keep a proper lookout for Campbell and that Campbell, though failing to keep a proper lookout to the rear for Transport’s truck, was under no duty to do so. One is not negligent in failing to do that which he is under no duty to do. Le Sage v. Smith, supra.

Upon settled and old common-law principles, courts may and often have disregarded findings upon defenses which in law were not valid defenses. Brown v. Rentfro, 57 Tex. 327, 332 (1882); Hays v. Stone, 36 Tex. 181 (1871); 3 Texas L.Rev. 450. As stated in 4 McDonald, Tex.Civil Practice 1408, § 17.31:

“A special issue is immaterial when (1) it should not have been submitted; or (2) though properly submitted, it has been rendered immaterial by other findings. * * * Also immaterial are special issues which erroneously submit questions which call for findings beyond the province of the jury; e. g., questions of law or of evidentiary matters. * * *
“Special issues which are properly submitted often are rendered immaterial by the jury’s findings upon other issues. * * * But issues which have been unconditionally submitted likewise may be rendered immaterial by findings upon other issues. This will be true when the factual situation established by the other findings is such either that no answer to the immaterial issue could properly be made or that any answer to such issue would be wholly without legal significance.”

I would affirm the judgments of the courts below.

GRIFFIN, SMITH and NORVELL, JJ„ join in this dissent.

      . Emphasis ours throughout unless otherwise indicated.


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    L. J. FLOWERS, Individually, and d/b/a Flowers Tank Company, Petitioner, v. STEELCRAFT CORPORATION, Respondent.
    No. A-11293.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied Oct. 5, 1966.
    Robinson & Fotheringham, Amarillo, for petitioner.
    Sanders, Scott, Saunders, Brian & Humphrey, Robert H. Smith, Amarillo, for respondent.
   POPE, Justice.

Plaintiff, L. J. Flowers, doing business as Flowers Tank Company, sued Steelcraft Corporation, a Texas corporation, for labor and personal services performed in the erection of three storage tanks in Granada, Colorado. The trial court sustained defendant’s plea in abatement and dismissed plaintiff’s suit. The plea asserted that defendant was not liable in the capacity in which it was sued because the plaintiff sued Steelcraft Corporation, a Texas corporation, when it should have sued Steelcraft Corporation, a Colorado corporation. The Court of Civil Appeals affirmed the trial court’s judgment. 398 S.W.2d 796. We reverse the judgments below and remand the cause to the trial court with instructions to reinstate the cause upon the docket.

Defendant’s plea in abatement was that plaintiff Flowers sued the wrong one of two existing corporations that had identical names. The Court of Civil Appeals correctly held that this is not a case of mere misnomer of a corporation that plaintiff intended to sue. Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847 (1921). This case presents a problem of identity of corporations. Defendant had the burden to prove the allegations in its plea in abatement. 3 McDonald, Texas Civil Practice, § 10.13. We hold that it failed to discharge that burden and that there is no evidence that plaintiff Flowers sued the wrong corporation.

Defendant called two witnesses, W. F. Dodd and plaintiff Flowers. Dodd testified that there were two corporations, Steelcraft Corporation, a Texas corporation, and Steelcraft Corporation, a Colorado corporation. He testified that he lived in Amarillo, Texas, that the Texas corporation had its headquarters in Amarillo, Texas, and that he was vice-president of that corporation. The Colorado corporation was headquartered at Lamar, Colorado and Dodd was president of that corporation. He testified ambiguously that the Texas corporation had nothing to do “directly” with entering into a contract with Flowers and that a man by the name of Taylor was the agent for service in Colorado for the Colorado corporation. On cross-examination Dodd testified that on April 12, 1963, he accepted plaintiff Flowers’ bid to erect the storage tanks by sending this telegram from Amarillo, Texas, to Flowers at his place of business in New Harmony, Indiana:

“Confirming acceptance of your sub-mittal letter for tank erection which includes unloading and transportation charges. Steelcraft Corp-Willard Dodd.”

That was the contract Flowers sued upon. Dodd testified that he did not tell Flowers then or at any time later that the agreement was with the Colorado corporation. When Flowers entered into the contract, he did not know about any corporation except Steelcraft Corporation, the Texas corporation. After Dodd sent the confirmation telegram from the Amarillo office of Steelcraft Corporation, that same office sent Flowers a purchase order. The purchase order showed that it came from “Purchasing Department of Steelcraft Corporation, Box 3499, Amarillo, Texas.” It was signed “Steelcraft Corp., Purchasing Agent, Per Mark A. Taylor.” Taylor was vice-president of the Colorado corporation and was not an officer of the Texas corporation, facts which were not disclosed to Flowers.

Flowers erected the tanks and then billed Steelcraft Corporation in Amarillo, Texas. On June 6, 1963, Taylor sent Flowers a letter complaining about the quality of the work and signed it “Steelcraft of Colorado, Mark A. Taylor, Vice President.” Flowers’ contract to erect the tanks was made with “Steelcraft Corporation” not “Steel-craft of Colorado,” even under defendant’s contention. This unilateral document sent after the parties had made their contract, and after a dispute arose about the quality of the performance, is the first and only indication to Flowers of another corporation. The post-contract letter from “Steel-craft of Colorado” was no proof that Flowers made his contract with “Steel-craft Corporation,” a Colorado corporation. West v. Johnson, 129 S.W.2d 811 (Tex.Civ.App. 1939, writ ref.).

On February 2, 1964, plaintiff’s attorney made further demand for payment by addressing a letter to Steelcraft Corporation, Box 3499, Amarillo. Dodd returned the letter after writing this note on the bottom of the letter. “We are running a detailed report for the costs involved at X-Y Ranch, Granada, Colorado. This will be forwarded to you immediately when completed. Willard Dodd.” Other documents and long distance phone calls were exchanged by Flowers and the Amarillo office of Steel-craft Corporation. All of the transactions were with that office and Dodd’s only explanation was that he was forwarding the documents to the Colorado corporation. He said that he sent the original acceptance telegram because Taylor phoned him from Colorado and specially instructed him to do so. Those facts were never disclosed to Flowers.

Defendant proved the existence of two corporations but failed to prove that Flowers did not contract with the Texas corporation. There was no evidence that Flowers’ contract was. with the Colorado corporation. The judgments of the courts below are reversed and this cause is remanded to the trial court with instructions to reinstate the cause upon the docket.


author: STEAKLEY, Justice.

text:
    Charles Thomas CROWE, Petitioner, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Respondent. Alfred Lee WALLIS, Petitioner, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Respondent.
    Nos. A-11364, A-11365.
    Supreme Court of Texas.
    July 20, 1966.
    Rehearing Denied Oct. 5, 1966.
    Gibson, Ochsner, Harlan, Kinney & Morris, James H. Doores, with above firm, Amarillo, for petitioner, Charles Thomas Crowe.
    Folley, Snodgrass, Calhoun & Kolius, Joe Bob Brown, with above firm, Amarillo, for petitioner, Alfred Lee Wallis.
    Naomi Harney, County Atty., Charles Fairweather, Asst. County Atty., Amarillo, for respondent.
    Everett Lord, Beaumont, amicus curiae on briefs in favor of petitioners.
   STEAKLEY, Justice.

These are drivers’ license suspension proceedings, consolidated on appeal, in which the judgments of the County Court-at-Law of Eotter County, sustaining the motions for summary judgment of the Department of Public Safety, and hence upholding the suspensions, were affirmed by a divided Court of Civil Appeals. Crowe and Wallis v. Department of Public Safety, 399 S.W.2d 176. We reverse the judgments below and render judgment for petitioners.

As procedurally provided in Article 6687b, Section 22, Vernon’s Annotated Civil Statutes, the Department of Public Safety suspended the driver’s license of petitioner Crowe for three months and that of petitioner Wallis for four months. The Department acted under that portion of Section 22(b) reading as follows:

“The authority to suspend the license of any operator, commercial operator, or chauffeur as authorized in this Section is granted the Department upon determining after proper hearing as herein-before set out that the licensee:
«‡ * *
“4. Is an habitual violator of the traffic law. The term ‘habitual violator’ as used herein, shall mean any person with four or more convictions arising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more convictions arising out of different transactions within a period of twenty-four (24) months, such convictions being for moving violations of the traffic laws of the State of Texas or its political subdivisions.”

In Crowe, the affidavit of the judge of the Corporation Court in which Crowe purportedly suffered the supporting traffic violation convictions was offered in support of Crowe’s motion for summary judgment in the County Court-at-Law. The affidavit of the judge was in part as follows:

“I am judge of the Corporation Court in Amarillo, Texas, and all records of the Clerk of the said Court are kept under my direction and control. The following traffic tickets for offenses alleged to have been committed on the dates listed below by Charles Thomas Crowe were disposed of by the Clerk of this Court: [five separate offenses listed] * * *.
“If the Court had heard a plea and made a finding and assessed a fine, the Court’s signature or initials would appear on the face of the ticket. Each ticket shows on its face to have been disposed of by payment of a fine at the window of the Clerk of this Court. * * *
“ * * * There is no other instrument or record of these tickets or their disposition with this Court or with the Clerk of this Court.”

In Wallis, there was a similar affidavit offered for the same purpose which stated in part:

“I am one of the Judges of the Corporation Court of the City of Amarillo, Texas, and I am well familiar with the records by the Clerk of said Court, as said records are kept under my direction, supervision, and control. The records of the Corporation Court of the City of Amarillo, Texas, reflect that the following tickets were issued to Alfred Lee Wallis on the dates set out below, to-wit: [five separate offenses listed].
“I know of my own knowledge that the disposition of these tickets were not made by a Judge of the Corporation Court for the City of Amarillo, but were made by the Clerk of this Court. * * *
“ * * * and each ticket * * * shows on its face to have been disposed of by payment of a fine at the window of the Clerk of this Court.
“ * * * and that no other record concerning the incident set out in said tickets appear anywhere else in the official Court records of the Corporation Court of the City of Amarillo, Texas.”

These affidavits by the judge establish that no judgments were entered in the Corporation Court in any of the traffic violation transactions upon which the Department of Public Safety rested its suspension of the drivers’ licenses of Crowe and Wallis. All that happened was that Crowe and Wallis paid fines to the Clerk. Consequently, the problem is not one of impeaching judgments of convictions supporting a driver’s license suspension as in Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.Sup.1964). Here the record affirmatively shows the nonexistence of any judgments of conviction, and the question of affording verity until judgments are set aside by a court having jurisdiction to do so is not presented.

Moreover, these affidavits by the Judge show the absence of a record of any judgments as is required by Article 6701d, Section 152, V.A.C.S., and contradict the notices of conviction upon which the license suspensions by the Department were based; the presumption that such notices reflect judgments of a court is therefore destroyed. Cf. Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.Sup.1964).

Under Section 22(b) of Article 6687b, the Department was authorized to suspend the drivers’ licenses of Crowe and Wallis as habitual violators of the traffic laws upon the basis of their having been convicted of four or more moving violations within a consecutive period of twelve months. The suspension orders of the Department here in question must fall since it affirmatively appears there were no judgments of conviction in the supporting traffic violation transactions.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and judgment is here rendered for Petitioners setting aside the action of Respondent in suspending Petitioners’ drivers’ licenses.


author: PER CURIAM.

text:
    J. G. LONDON, Petitioner, v. Rosa Mae CHANDLER et al., Respondents.
    No. A-11468.
    Supreme Court of Texas.
    July 27, 1966.
    Rehearing Denied Oct. 5, 1966.

      Lowell C. Holt, Gilmer, for petitioner.
    Matthews, Payne, Pace, Sands & Ben-ners, Dallas, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals is found in 400 S.W.2d 862. That Court affirmed a trial court default judgment, and in the course of doing so overruled two points of error. Only one of the rulings is brought here for review.

The default judgment was rendered in favor of respondents, plaintiffs in the trial court, against petitioner, defendant in the trial court. The point of error which petitioner asserts was erroneously overruled by the Court of Civil Appeals is as follows: “The error of the trial court in rendering a default judgment against Appellant because the citation served upon appellant was insufficient in that the date of issuance of citation was not shown thereon.”

Rule 101, Texas Rules of Civil Procedure, requires that a citation “state the date of the filing of the petition, its file number and the style of the case, and the date of issuance of the citation,” and that it “be signed and sealed by the clerk.” The Court of Civil Appeals held that the Rule requirement for showing date of issuance was met by a showing in the body of the citation of the date on which the clerk signed and sealed it. We disagree.

Our Courts of Civil Appeals have correctly declared that a citation is not issued until “it is sent forth from the clerk’s office under his sanction and authority and given to an officer, or to some one else to give to an officer, for the purpose of being served.” See Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 876 (1935), writ dism.; Ferguson v. Estes & Alexander, Tex.Civ.App., 214 S.W. 465, 467 (1919), no writ. The date of issuance thus may be entirely different from the date of signing and sealing. However, mere failure to note the date of issuance does not render a citation invalid, service thereof ineffective or a judgment rendered pursuant thereto void. This is made clear by Rule 118 which provides for amendment of citations.

The citation in the record showing date of delivery to the sheriff and date of service on petitioner clearly demonstrates that failure of the clerk to note the date of issuance on the citation did not result in prejudice to petitioner. Writ of error is refused, no reversible error. Rule 483.


author: NORVELL, Justice. SMITH, Justice. STEAKLEY, Justice.

text:
    Ex parte Frank HANLON.
    No. A-11353.
    Supreme Court of Texas.
    June 29, 1966.

      Brown, Sparks & Erwin, Will G. Barber, Austin, for petitioner.
    Byrd, Davis & Eisenberg, Austin, for respondent.
   NORVELL, Justice.

Frank Hanlon filed an application for writ of habeas corpus in this Court contending that an order of commitment issued by the District Court of Travis County was invalid because the District Court was without authority to issue the order which he was charged with violating. We granted the writ and set down the case for hearing.

It appears that on December 10, 1965, Moses Byrd filed a petition to perpetuate testimony. Rule 187, Texas Rules of Civil Procedure. He alleged that he anticipated instituting an action against Jane Doe, whose true name was unknown to him; that such anticipated action concerned an automobile collision which occurred on U. S. Highway 290 near Manor, Texas, at approximately 7:00 p. m. on the evening of May 24, 1965; that he had reason to believe that Jane Doe was the driver of an automobile which may have been the proximate cause of such collision and the resulting injuries which he, Byrd, sustained and that the exact name, address and present whereabouts of Jane Doe were unknown to him, even after exhaustive investigation. Byrd further averred that he wished to perpetuate the testimony of Frank Hanlon (the relator here) and that said Hanlon would be examined “concerning the exact name, address, present whereabouts and other matters leading to the discovery of the exact name, address and present whereabouts of Jane Doe, which information is necessary for (Byrd) to prepare and prosecute his claim against Jane Doe”. To this end, Byrd requested the court to enter an order authorizing him to take the oral deposition of Frank Hanlon. Byrd also requested the issuance of a subpoena duces tecum directing Frank Hanlon to bring with him such papers and records as will be needed by him in furnishing the information sought by Byrd as petitioner. The Court directed that the deposition be taken and thereafter specifically ordered Hanlon “to answer questions with respect to the exact name, address and present whereabouts of Jane Doe * * Upon the advice of counsel, Hanlon refused to make answer, whereupon the Court found him in contempt and ordered the Sheriff of Travis County to take him into custody and “restrain him of his liberty until further orders of the court or until he be discharged thereform according to law.”

It is Hanlon’s position that he may not be forced to answer questions as to the exact name, address, and exact whereabouts of Jane Doe because he is claim manager and investigator for Millers Mutual Fire Insurance Company of Texas, the insurance carrier for T. E. Lender, who was the driver of one of the automobiles figuring in the Highway 290 collision, and it was through his investigation of such collision that he ascertained the identity and location of the driver (Jane Doe) of the third vehicle at the scene of the accident. Hanlon says that he communicated this information to Millers Mutual and although he does not now remember the name of Jane Doe, he has a written record thereof in his investigation file. Relator asserts that the District Judge’s order of contempt and commitment is void because it is in the teeth of a proviso contained in Rule 186a and therefore subject to attack by habeas corpus. The rule provides that:

“Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. * * * Provided, however, that the rights herein granted shall not require the production of written statements of witnesses or extend to communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation, or defense of such claim, or the circumstance out of which same has arisen; and provided further, that the rights herein granted shall not require disclosure of information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation.”

In support of the validity of the order, Byrd asserts a number of contentions. He urges that in essence, the proceeding which he instituted is an equitable bill of discovery under Rule 737. Obviously, discovery is one of the purposes of the deposition sought to be taken, but the proceedings come squarely within the provisions of Rule 187 relating to the taking of depositions to perpetuate testimony. In paragraph 4 of Rule 187, it is provided that, “The deposition rules not inconsistent with this rule shall apply to the taking, signing, returning, objections to, and use of such depositions.” We think it quite clear that the provisos set forth in Rule 186a have application to depositions taken under Rule 187.

Byrd also argues that the Rule 186a provisos have no application to the present situation because T. E. Lender, whose automobile insurance is carried by Millers Mutual Fire Insurance Company is not a party to the proceedings. The first proviso mentions parties — i. e., communications between agents or representatives of parties, and communications between parties and their agents and representatives. However, the second proviso (which we have italicized) does not mention parties and obviously was intended to extend the scope of the exception beyond that set forth in the first proviso. It simply provides that the rights “herein granted (to take a deposition) shall not require disclosure of information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation”. This language clearly applies to Hanlon who was employed to make an investigation of the collision. It may be further said that the effect of adopting this construction would be to effectively destroy the provisos of Rule 186a. It would only be necessary to proceed under Rule 187 where the only person who could be properly designated as a “party” would be the one petitioning for a commission to take a deposition to perpetuate testimony.

Byrd further earnestly contends that the situation disclosed by the present record constitutes an exception to the provisos of Rule 186a. It is said that in issuing the order directing Hanlon “to answer questions with respect to the exact name, address, and present whereabouts of Jane Doe”, the trial judge was exercising a discretion lawfully vested in him; that the scope of the order and its supporting motion (referred to in the order) is extremely narrow and has for its only purpose the ascertaining of the name, address and present whereabouts of Jane Doe, allegedly a person against whom Byrd has or may have a cause of action; that the purpose of the provisos contained in Rule 186a is to protect the work product of a litigant or prospective litigant; that the enforcement of the provisos must to some extent operate to shut out the truth; and that in the unusual factual situation disclosed by the present record, an examination of policy considerations is called for. It is pointed out that when the identity of a proposed defendant who may have done serious injury to a prospective plaintiff is at issue, the policy consideration of preserving a work product is little served while an important and vital policy of vindicating justice is jeopardized. In this connection, it is stated that after thorough investigation, Byrd and his attorneys have been unable to ascertain the identity of Jane Doe as far as they know, Hanlon is the only person who does know her identity.

While we recognize the force of Byrd’s argument, there is much to be said for the enforcement of statutes and rules in accordance with their literal wording. Admittedly, the facts of the present case are highly unusual and we have been unable to find any controlling or persuasive authority relating to the situation. The provisos in Rule 186a seem to be peculiar to the Texas practice. Cf. Ex Parte Ladon, 160 Tex. 7, 325 S.W.2d 121 (1959) relating to Rule 167. It could well be that the giving of the information requested of Hanlon should not as a matter of abstract justice be frustrated by operation of the provisions of Rule 186a, but the wording of the pertinent provisions leaves little or no room for the exercise of discretion by a trial judge Shirley v. Dalby, 384 S.W.2d 362 (Tex.Civ.App.1964, ref. n. r. e.), and the fact remains that the wording of the provisos is unambiguous and covers the exact situation we have before us since it appears that Hanlon obtained information as to the name, address and whereabouts of Jane Doe in the course of an investigation of a claim or defense relating to the automobile collision.

It is ordered that the relator, Hanlon, be discharged.

DISSENTING OPINION

SMITH, Justice.

I respectfully dissent. I cannot agree with relator’s theory that any information which is obtained during the course of an investigation is forever privileged and immune from discovery. According to relator’s theory, regardless of what actions Moses Byrd takes against Lender, he would never be able to ascertain the real name of Jane Doe. The counsel for petitioner also represent Lender. One of the attorneys for Hanlon made a statement to the trial judge that “[i]f Mr. Lender is not to be a party, and if counsel is willing to furnish a release as to Mr. Lender I think we can finish our controversy pretty promptly.” Counsel for Moses Byrd addressed the Court, in reply, that “ * * * without knowing all of the facts I can not state either that we will or we will not present a claim against Mr. Lender. I am trying to find out what happened out there and once I find out what happened then a decision will be made as to whether we will or will not proceed in a separate suit against Mr. Lender. I do know on the basis of what information I have that we very well may have a cause of action against Jane Doe, if we can just find out who Jane Doe is, and that is all that I am interested in doing here."

Thus, we have what I consider an admission that if Lender can be released, then the real name of Jane Doe will be forthcoming Under the circumstances, no conscientious lawyer would bind himself to release Lender. How can withholding Jane Doe’s real identity aid Lender ? Moses Byrd contends, and correctly so, that the situation disclosed by the present record constitutes an exception to the provisos of Rule 186a. I take the position that Moses Byrd proceeded in good faith when he moved the Court to be permitted to take the deposition of Hanlon. The trial court has adjudged the petitioner in contempt. This Court must assume in support of the trial judge’s order that he found that the motion to take the deposition of Hanlon was filed in good faith and that in order to prevent a possible miscarriage of justice it was essential that Hanlon make known the identity of the prospective defendant, Jane Doe. The doctrine or principle relied upon by Byrd is highly important to any scheme of administering justice. In the recent case of Lehnhard v. Moore, 401 S.W.2d 232 (Tex.Sup.1966), this Court considered the policy of disclosure of facts in a somewhat different context from that presented here and quoted with approval the following from Dean Wigmore’s work on Evidence, viz:

“[N]o man is to be denied the enforcement of his rights merely because another possesses the facts without which the right cannot be ascertained and enforced.” 8 Wigmore, (3rd Ed.) § 2213.

Admittedly, the facts of the present case are highly unusual, and I have been unable to find any controlling or persuasive authority relating to the situation. The provisos in Rule 186a seem .to be peculiar to the Texas practice. Cf. Ex Parte Ladon, 160 Tex. 7, 325 S.W.2d 121 (1959) relating to Rule 167. Ordinarily, the provisos of Rule 186a leave no room for the exercise of a discretion of a trial judge. Shirley v. Dalby, 384 S.W.2d 362 (Tex.Civ.App.1964, ref. n. r. e.). However, this Court should hold that such provisos, having for their obvious purpose the protection of a work product, were never intended to protect a witness from giving the name of a prospective defendant, where a trial judge finds that a prospective plaintiff after a good faith investigation has been unable to ascertain the name of a prospective defendant and knows of no one except the witness who is possessed of such information.

It is clear that this is not a case where one party is attempting to usurp the results of an investigation of another. Moses Byrd is not attempting to obtain the names of another party’s witnesses. It is a case in which the trial court has found that under the unusual circumstances presented here, Moses Byrd is entitled to the limited information which he seeks.

The trial court had jurisdiction of the subject matter. The judgment entered is not void. This Court has strictly construed the rule to the extent of holding that the pertinent provisions leave “little or no room’’ for the exercise of discretion by a trial judge and that the “wording of the provisos is unambiguous and covers the exact situation we have before us. * * * ” I cannot agree with this unfair, unjust and untenable construction of the rule.

Furthermore, the trial court’s order was entered by virtue of that power ancillary to the exercise of the duties of a court of equity as a means for the attainment of justice. The trial court’s judgment is not only authorized by Rule 186a, but is also authorized by Rule 737. This latter rule contains no restrictive provisions except the discretion of the trial court “in accordance with the usages of courts of equity.” See Hastings Oil Co. v. Texas Company, 149 Tex. 416, 234 S.W.2d 389 (1950).

The relator has advanced no equitable reason or justification for the withholding from Moses Byrd, an injured party, the true name of Jane Doe, which, if known, would afford Moses Byrd an opportunity to enforce his rights. See Lehnhard v. Moore, supra. If the rules of our Court are to be so strictly construed, as here, then our adversary system cannot long survive. The holding of this Court in the present case fosters and encourages the suppression of truth and denies an injured person, Moses Byrd, the opportunity to pursue his legal rights in a court of law. If this is to be the result, then the Court should modify the rule by Court decision in this very case rather than to await the approval of an advisory committee before formally changing the rule by the Court.

Unless prompt action to change the rule is taken it is entirely possible that Moses Byrd’s cause of action against Jane Doe will be barred by limitation. To avoid confusion and to permit justice to prevail, this Court should construe the statute to mean that it was never intended to protect a witness from giving the name of a prospective defendant. If this course were followed, then there need be no change in the rule. Since the Court has declined to accept my view, it should seriously consider immediately changing the rule to reach the result herein expressed.

I would remand the relator, Hanlon, to the custody of the Sheriff of Travis County, Texas.

DISSENTING OPINION

STEAKLEY, Justice.

I would uphold the order of the district court. I would not construe Rule 186a as prohibiting discovery of the identity of a prospective defendant known to a witness where the trial judge has found that the prospective plaintiff has been unable to ascertain the identity of the party after a good faith investigation.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    William Clark BRYAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39638.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied Oct. 5, 1966.
    Luther F. Hardin, John T. Nicholson, Rosenberg, John K. Gresham, Richmond, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for murder; the punishment was assessed at death.

On February 18, the deceased, Luther Douglas Price, operated a drive-in grocery store which was adjacent to a service station. The station operator last saw the deceased about 9:30 p. m. at the store; next, he saw a Cadillac parked in front of the store but never saw it leave, and before 10 p. m. he was alerted when customers of the store found it unattended with the cash register open, and on being unable to locate the deceased, the officers were notified.

The appellant was seen in the vicinity of the store about 9:30 p. m. February 18, with a .22 caliber pistol and driving a Cadillac. Later, about midnight, a man used the telephone at a residence to call a taxi, saying his car was in the ditch and he was unable to get it out; and he soon left in a taxi. On Friday morning, February 19, a Cadillac was found in a ditch in the vicinity of the residence from which the taxi was called, the sheriff was notified, and the car was stored in Richmond. About 2 p. m. Sunday, February 21, a body was found in a roadside ditch approximately one and one-half miles from where the Cadillac was found. The identification papers on the body revealed that it was that of Luther Douglas Price and those who knew Luther Douglas Price also identified the body as that of Luther Douglas Price. Further investigation revealed that the appellant was driving the Cadillac in the vicinity of the store on the night the deceased disappeared. Also, it was determined that a friend of appellant’s, R. W. (Porky) Johnson, had recently obtained a .22 caliber pistol. At this time a complaint was filed against the appellant charging him with the murder of Luther Douglas Price before Justice of the Peace Rucker. The next morning on a further search near the scene where the Cadillac had been in the ditch, a sack containing $13.75 was found.

After a newpaper story in Houston that appellant had been charged with murder, the appellant surrendered and was soon taken into custody by authority of an arrest warrant by Sheriff Gaston of Fort Bend County, who took him before Justice of the Peace Rucker where he was warned and advised of his rights. In a search for the pistol, the appellant told the officers that he threw it in the ditch between where he left the sack of money and the residence from which he called the taxi. At appellant’s direction the pistol was found in the ditch, and when found the appellant told the officers at the scene that it was the pistol with which he shot Luther Douglas Price.

Dr. Bucklin examined the body of the deceased and testified that a gunshot wound in the head was the cause of death.

The appellant made and signed a written statement, which omitting the formal parts, reads in part as follows:

“My name is William Clark Bryan_ Jr. and I am 25 years of age. * * * I have been advised of my rights to counsel and I do hereby waive that right before making this statement. On Thursday, February 18, 1965,1 was living with a friend of mine by the name of R. W. (Porky) Johnson at the above address. At about 6:30 P.M. on this date I went into the bedroom and I got a .22 Cal pistol that belonged to Porky and I checked it and it had 3 rounds of ammunition in it and I asked Porky if I could borrow his 1958 model Cadillac automobile and he told me that I could. When I got out to the car I looked into the turtle shell and I got some more .22 cal shells out of this compartment. I put 3 more rounds into the pistol and I put some loose shells in my pocket. I then got into the car and started driving around. I then went to a couple of beer joints and I drank some beer. I then drove over on Bissonnett to a couple of friends of mine by the name of Dave and Stanley. I don’t know their last names. I tried to get Dave to call a girl friend of mine down at McMahons drug store but he wouldn’t do it and he told me that I ought to leave her alone. While I was at Dave and Stanley’s house I showed them this .22 cal pistol that I had. I left their house about 9:45 P.M. in this yellow cad. I then drove over to the U-Totem on 9530 Braeburn Glenn and I drove up in front of the store and parked the car. I went into the U-Totem store and I saw that there was no one in the store but this man that run the store and he was sweeping the floor. He was sweeping the floor around the check out counter and when I walked into the store I had my pistol in my hand and I walked up to him and I told him that this was a stick up and I want to change this, I just told this white man to give me the money and he walked to the cash register and opened it and he gave me the money and I told him to lets go and he walked out to my car with me and I told him to drive and we got into the car and drove off. We drove out Bissonett and through the back roads to Richmond and then on to Rosenberg, Texas. This man told me that his name was Price and he told me that he was married and that he had four children and that his wife was going to pick him up at 11:00 P.M. and he was afraid that he would miss her. Mr. Price was driving the car and I was setting in the front seat with him and we were just talking about his family and I told him that I had a wife and two children. When we got to the underpass on the west side of Rosenberg I told him to turn around and I would take him back closer to Houston. He turned around and we went back through Rosenberg and' Richmond and back toward Houston on Hwy 59. After we went through Sugar-land I told this man to turn on a black top road which the Officers have told me the name of this road is the Elderidge Road. We went down this road until we Came to Bissonett and he turned right toward Houston and we went until we came to a gravel road and I told him to turn right and we came to the Belknap road and I told him to turn right again on another road which the officers told me was Stiles Lane and up this road about 150 feet and I told him to stop the car. It must have been about 11:15 or 11:30 P.M. and we were walking back down the road from the car and I was going to show him the way that I wanted him to walk. Mr. Price told me that he didn’t want to walk down the road so I told him to go ahead and cross the ditch and walk across the field. He then told me that he didn’t want to walk across the field. I then fired 4 shots to scare him and he told me to stop shooting and I asked him if he was hit and he said yes in his left side. He then walked back up out of the ditch up to me and I looked at his left side but I couldn’t tell that I had hit him because it was dark. I asked him if it hurt and he told me no so I told him to go ahead and walk across the field. Mr. Price turned around and then turned about half around again and drew up his arm and I thought that he was going to hit me so I shot him again. Mr. Price fell backwards and I saw that he was partly in the water in the ditch so I turned him over and he went all the way into the water. I didn’t see where I had shot him but I knew that he was hit bad and I figured that he was dead so I ran and got into my car and turned it around and drov_ back past where Mr. Price was at and I went to the right until I got to Bissonnett and I turned left and drove until I came to a muddy gravel road and I was driving so fast that I lost control of the car and I went into the ditch and got stuck. I then got out of the car, and I had a paper sack with some silver in it that I had stolen from the U-Totem store laying in the seat and I took this sack and I got up on the road walking and I saw 2 or 3 houses on the opposite side of the road from where my car was stuck and I started walking down this gravel road. I walked quite a while and I decided to get rid of this sack of money that I was carrying so I walked over to the bank of the creek and I put the sack down on the ground. I then started walking on down the road and a little ways futher I decided to get rid of the pistol so I went down into the ditch and dug a hole in the water and hurried the gun. I then walked on until I cam out on a black top road and I figured that this was Bissonnett and there was 2 or 3 houses across Bis-sonett so I turned toward Houston and walked up to one of these houses and rang the doorbell. A boy about 17 or 18 years old came to the door and I told him that I had car trouble and would like to call a cab and he let me in the house to use the telephone. I called the courteous cab. co. and I then left the house and walked on toward Houston until I met the cab. This cab driver carried me first to the Nomad Motel in the 10,000 block of South Main and I went in and registered under the name of J. L. Whitmore,_That I was working for the Gore Truck Line and lived in San Antonio, Texas. I had the cab wait for me because I wanted to know if the porter was working so I could get a beer and after I found out that he wasn’t working I decided not to stay there and I got back into the cab and went over to the King Motel and checked in and spent the night. The next night I checked in at the Nomad Motel. On Monday, February 22, 1965 I saw in the newspaper that I was wanted for Murder so I czlled the Sheriff’s Dep’t. in Houston and talked to Lt. Joe Thorpe and told him where I was at and if he would come and get me I would surrender and he came and picked me up. Where I shot Mr. Price and killed him was in Fort Bend County Texas, I can read and write the English Language and I have read the above statement and it is true and correct to the best of my knowledge and belief.”

The appellant did not testify before the jury. He called several witnesses whose testimony reveals much illness in his early childhood, with abnormal behavior beginning at age 11, followed by continuous acts of misconduct including numerous violations of the law, culminating in confinement in jail and also a term in the penitentiary, and several 90 day commitments in state hospitals. Several lay witnesses testified that he did not know right from wrong. The psychiatrist, Dr. Vogt, called by the appellant, testified that he was mentally ill and should be restrained, but stated that he had no opinion as to whether he knew right from wrong.

After a hearing was held in the absence of the jury on the voluntary nature of appellant’s written statement, the. trial court made independent findings that said statement was voluntarily made.

In the beginning of appellant’s brief he states that:

“The Appellant’s principal points in this appeal are that there was reversible error on the part of the trial court in allowing the Defendant’s confession to be introduced in evidence, and in refusing to grant Defendant a new trial in view of newly discovered evidence as to Defendant’s insanity, as to his being under the influence of alcohol and drugs, and as to information in the State’s possession which casts substantial doubt as to the truth of the actions stated in the confession.”

Appellant contends that the determination of the issue of the voluntariness of his confession by the trial court must be wholly independent of any consideration of its truth or falsity, and any procedural method which allows consideration of the probable truth or falsity of the confession in determining such issue is fundamentally unfair; and that the trial court never made a clear cut finding on the issue that he was mentally incapable of making a voluntary confession.

The trial court in his order overruling appellant’s motion to exclude the written statement from the jury found that said statement was voluntarily made; that after his arrest he was immediately taken before a magistrate and advised that he was charged with murder; that he was advised of his right to counsel and was not denied counsel; that he was advised that he did not have to make any statement at all; that at the time he made the written statement to Officer Elder he was mentally alert and under no mental stress, and was in good physical condition.

In light of the allegations in the motion, the findings in the order overruling it sufficiently resolved the issues made on the hearing.

It is insisted that the court erred on the independent hearing on the issue of the voluntary nature of the confession in admitting and considering evidence of its truth or falsity.

When a hearing is held before the court and there is nothing to show that his findings were based upon inadmissible evidence, it will be presumed that the trial judge disregarded any inadmissible evidence that may have been admitted, and the cause will not be reversed on appeal on the ground of the admission of inadmissible evidence if sufficient proper evidence was introduced to sustain the findings of the court. Tealer v. State, 163 Tex.Cr.R. 629, 296 S.W.2d 260; Skelton v. State, 165 Tex.Cr.R. 247, 306 S.W.2d 127; Garrett v. State, 307 S.W.2d 270.

Nothing appears in the record of the hearing which shows that the trial court considered any inadmissible evidence in making its findings.

Appellant contends that his written statement was not legally obtained on the grounds that he was not warned of his rights to refrain from making the statement, and that he was without counsel.

On the main trial the evidence of the state reveals that after a newspaper had published that appellant had been charged with murder he telephoned the sheriff’s office in Houston about 1 p. m., gave his name, his location, and said he wanted to surrender, and he was soon taken into custody. About 1:30 p. m., the appellant was delivered to Sheriff Gaston and Deputy Sheriff Elder of Fort Bend County, and they took him immediately before Justice of the Peace Rucker in Sugarland, arriving at 3:10 p. m., where the murder charge against him was pending. Justice Rucker first read the complaint to the appellant, advised him of his right to counsel, and that if he had no counsel he would appoint counsel for him; that he could have an examining trial or he could waive it; and further told him he did not have to make any statement and any statement he did make could be used against him. The appellant said he did not want an attorney, and then made no statement to Rucker about the facts of the case, and a commitment was issued. After appellant was placed in jail the sheriff and Deputy Elder both advised him that he did not have to talk with newsmen unless he desired, and he willingly agreed and talked with them from 4:20 to 5:10 p. m. After the officers talked with the appellant, he accompanied them at 5:15 p. m. on a search for a pistol but night came and the search was discontinued. Then they went to the Nomad Motel in Houston where the clerk identified the appellant as the man who arrived alone at the motel in a cab on the night of February 18. After returning to the Richmond jail at 9 p. m., the officers talked with the boys from whose residence the appellant had called a taxi and then talked with the taxi driver. Next, the appellant made a written statement to Deputy Sheriff Elder. Before beginning the statement Elder advised the appellant of his right to counsel and he said he did not want an attorney. Elder then warned the appellant in accordance with the provisions of Art. 727 C.C.P. which was in effect at the time. He made a statement to Elder in the presence of Deputy Sheriffs Irby and Cleboski which the appellant read and signed. Elder began typing the statement at 11:25 p. m. and completed it at 12:03 a. m., Tuesday. Accompanied by the appellant, the officers left the jail about 7:30 a. m., Tuesday, to search the scene for the pistol which the appellant said he threw between where he left the money sack and the house where he telephoned for a taxi. After finding a pistol in the ditch and before it was moved, Officer Elder asked the appellant, “Is that the gun and he said yes, that is the gun that I shot Mr. Price (deceased) with.” The pistol, when found, contained four spent shells and two live shells. Deceased’s body was found between three and four miles from the store.

Dr. Bucklin testified that he performed an autopsy on the body of the deceased; that his examination revealed a gunshot wound among others, above the right ear; that he recovered a small caliber bullet; and he expressed the opinion that the gunshot wound of the head was the cause of death.

The evidence reveals that the appellant’s fingerprints were found on the steering wheel of the Cadillac found in the ditch and which the officers took into their possession.

The appellant did not testify before the jury on the main trial.

The evidence was sufficient to warrant the conclusion that the written statement was legally obtained and authorized its admission in evidence.

Appellant strenuously insists that the trial court erred in overruling his amended motion for a new trial on the ground of newly discovered evidence as to his insanity and that he was under the influence of alcohol and drugs at the time of the killing, and as to information in the state’s possession which casts doubt as to the truth of the actions stated in the confession.

In support of his amended motion for new trial, the appellant called John Gresham, one of the attorneys appointed for him March 15, before the trial on November 15, 1965. He testified that they never discovered anything about appellant’s use of barbiturates during the original investigation. There was some indication of his drinking alcohol, but no information that appellant was under the influence of either or both at the time of the killing; that such information was first learned from appellant about the diagnosis of chronic brain syndrome resulting from barbiturates and alcohol; and that they had relied on the report of Dr. Dwyer. Further, that he did not remember noticing in the officers’ reports during his examination of the state’s file that there was blood on the front and back seat of the Cadillac; that no significance was given to certain diagnosis in the report of Dr. Dwyer made three days after date of confession; that appellant did not cooperate and it was difficult to communicate with him and they had to rely primarily on his family and others, and learned nothing about his use of drugs.

On cross-examination Gresham stated that the motion for continuance on May 19 stated that the defense was insanity; that he talked to the appellant, his wife, and mother numerous times before November 15, the trial date; that they learned of Dr. Crow’s examination of appellant in May 1965, saw Dr. Dwyer’s report and consulted with Dr. Vogt; that he was shown the state’s file and told of everything the district attorney had concerning the case, and Deputy Sheriff Elder cooperated with him; that they were shown statements of witnesses for cross-examination purposes; that they were aware that upon request the court would appoint a psychiatrist to examine appellant but they decided not to make the request; and that they had read the state’s psychiatrist reports.

The appellant also introduced on the motion the affidavits of Dr. Tracktir, Ph.D., Clinical Psychologist, Dr. Crow, M.D., Lillian Bibbs, Mrs. Carol Bryan, Charles Rainwater, and the appellant.

Bibbs and Rainwater testified on the main trial. Mrs. Carol Bryan, wife of the appellant, was present at least two days during the trial according to testimony on the motion. Gresham testified that he knew that Dr. Crow, a psychiatrist, had made several examinations of the appellant. Dr. Tracktir’s affidavit reveals that he administered psychological tests to the appellant; and that “Tests of intellectual ability yield a score of 105 indicating average intelligence. This functional level, however, is quite inconsistent.” He did not express any opinion as to his insanity.

The state controverted appellant’s amended motion for a new trial and offered evidence in rebuttal.

Deputy Sheriff Elder testified that he made and kept a file of all the memoranda and reports in the instant case; that he turned the file over to attorneys for the appellant three or four times, never withheld any information from them, and took them to the scene and showed them where the body, the gun, and the money were found, and where the Rainwater boys lived (appellant called the taxi from their house and Charles Rainwater testified on the trial). He further testified that on Sunday after the alleged killing on Thursday night he found blood stains in the car, one spot about the size of a quarter and another smaller spot on the rear seat and one quarter-size spot on the front seat; that the blood spots were dried and old, and from his investigation they did not have any significance to the case; and that the file he turned over to the attorneys contained the offense report relating to the finding of the blood in the car.

District Attorney Bassett testified that he showed the attorneys for the appellant everything he had in his files and advised Deputy Sheriff Elder to do the same thing; that he first advised one of the attorneys for appellant in May, 1965, that upon request the judge would appoint a psychiatrist for the appellant.

The amended motion and the evidence in support of it have been considered in light of the' rule that where the defense is insanity, the requirement of diligence in the discovery of newly discovered evidence is not as strict as in other instances; and further, that in order to entitle an accused to a new trial, the newly discovered evidence must be such as would likely change the result, if produced on another trial. 1 Branch (2) 252-256, Secs. 220-223.

The decision on a motion for a new trial rests in the sound discretion of the trial court and in the absence of an abuse of discretion its decision will not be disturbed on appeal. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

It is concluded that the trial court did not abuse its discretion in overruling appellant’s amended motion for new trial.

The issue of the voluntary nature of appellant’s written statement was submitted to the jury; and the court further charged the jury that if appellant was not advised of his right to counsel and if he did not waive counsel, or if they had a reasonable doubt thereof to disregard the statement and not consider it for any purpose.

The law applicable to insanity and the issues pertaining thereto were submitted to the jury.

There were no objections to the court’s charge, and no requested charges were presented.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

CONCURRING OPINION

MORRISON, Judge.

Though I concur in the affirmance of this conviction, I heartily disagree with the reasoning of my Brethren in that portion of the opinion in which they discuss the rule of evidence relating to the truthfulness of the confession heard by the trial court.

An examination of the record reveals an important distinction between this case and Acosta v. State, Tex.Cr.App., 403 S.W.2d 434 (this day decided). In the instant case the prosecutor made legitimate inquiries into appellant’s conversation with the officer to whom he made the statement without digressing into the truth or falsity thereof. The prosecutor stated in answer to an objection, “I am not going into the crime itself.” The only question remotely connoting an inquiry into the truthfulness of the confession was the last question, “You did know that you threw the change away,” to which there was no objection.

This to me distinguishes the two cases.


author: MASSEY, Chief Justice.

text:
    Tom HOGAN, Appellant, v. The HANOVER INSURANCE COMPANY, Appellee.
    No. 16751.
    Court of Civil Appeals of Texas. Fort Worth.
    July 1, 1966.
    Rehearing Denied Sept. 16, 1966.
    Jacobs & Lipscomb, and Cue Lipscomb and Lindley D. Eakman, Fort Worth, for appellant.
    Crumley, Rouer, Murphy & Shrull, and Frank E. Crumley and R. E. Rouer, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Workmen’s Compensation Case. The trial court’s holding was that the insurance company was entitled to summary judgment on the theory that as a matter of law the injured workman was not at the time of his injury an “employee” within the meaning of the law.

The particular part of the Texas Workmen’s Compensation Act having application is a portion of Sec. 1, Article 8309 Vernon’s Ann.Tex.Civ.St., as amended, as follows: “ * * * provided that an employee who is employed in the usual course of the trade, business, profession or occupation of an employer and who is temporarily directed or instructed by his employer to perform service outside of the usual course of trade, business, profession or occupation of his employer is also an employee while performing such services pursuant to such instructions or directions; * * *.”

A case cited by the appellant, the injured workman, is Texas Employers’ Ins. Ass’n v. Harrison, Tex.Civ.App., 207 S.W.2d 168 (Fort Worth 1947, writ ref. n. r. e.) in which it was held that under the circumstances apparent in the record of a triaf had on the merits a fact question was presented concerning whether the injured workman was an “employee” of the subscribing employer at the time of a fatal injury. The circumstances of the instant case are nearly analogous. However, slight variations in the instant case require disposition as a matter of law.

We believe that the questions resolved in determination of the controlling element are thoroughly discussed in Texas Employers’ Ins. Ass’n v. Harrison, supra. Here, however, we have reached the conclusion that the factual showing made on the insurance company’s motion for summary judgment (as by a defendant) met the requirement that it demonstrate that the injured workman could not make out a prima facie case of liability on the part of the company, and showed as a matter of law the company should be acquitted.

We affirm the trial court’s holding that the injured workman was not entitled to any benefits under the Texas Act.

In the instant case, unlike the situation in Texas Employers’ Ins. Ass’n v. Harrison, supra, the injured workman gave consent to his entry into the service of one other than his employer, in which service his injury was sustained. Indeed, he held a discussion with such third party prior to the time his employer ever became aware that there would be an occasion for such service. The third party was told by the workman that “ * * * if he’d make arrangements with Mr. Ryon (the employer)” for him to get off, i. e., to be relieved of the duties of his regular employment, he would help him in the conduct of a “play day” at the latter’s ranch. In other words the insurance company was able to show by the injured workman’s own deposition that he had not entered the service of said third party because of any command or pursuant to any direction of his usual employer, but rather by the consent and acquiescence of said employer.

Furthermore, the act or service for such third party did not, in any degree, have casual relation to any conditions and orders under authority of which he was obliged to perform any duty for his regular employer. In other words the evidence before the lower court established that the injuries had no relation to and could not be said to have occurred because of any order given by the subscribing employer.

The evidence in the case shows only one fact which casts a “shadow of a doubt” upon the propriety of our holding of “no liability”. That fact was that the regular employer of the injured workman paid him for a full day’s work as though performed on the very day the injuries were sustained. In order to say that a fact issue existed which inhibited entry of the summary judgment we would be obliged to hold that the fact of the payment, standing alone and in and of itself, constituted evidence having sufficient probative force and effect to create an issue entitling the jury to find facts upon which an award of compensation might be predicated. We cannot do this. Our holding is that such evidence, standing alone, does not raise an issue of fact. Magnolia Petroleum Co. v. Francis, Tex.Civ.App., 169 S.W.2d 286 (Beaumont 1943, error refused). The judgment having been summary we have borne in mind the requirement that the insurance company, as the moving party, had the obligation to show that such evidence did stand alone. Such was shown.

Briefly stating the factual background of the case: The injured workman lived on the ranch of the party we have hereinabove referred to as the third person. He paid rent. As a favor to his landlord he occasionally fed horses. The landlord promotes horse shows and rodeo “play days”, no doubt in connection with his business. Such a “play day” was scheduled for July 3, 1964. The landlord needed the help of someone who could handle stock on horseback. The injured workman was such a person, although his usual duties were those of a saddle repairman at the shop of his regular employer. With the permission of his employer, albeit no doubt granted to the landlord because of an existing personal friendship, the workman was permitted to stay away from the shop and “at home” on the ranch on the day in question. He was driving some steers at the direction and under the authority and for the exclusive benefit of the landlord when one of them turned and attempted to escape by going underneath the workman’s horse. The horse fell. Thereby were the injuries sustained.

Affirmed.