author: SHARPE, Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Harvey Ray GILLEY, Individually and on behalf of all other Taxicab Drivers in the City of Corpus Christi, Appellee.
    No. 36.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 30, 1964.
    Rehearing Denied May 21, 1964.
    I. M. Singer, City Atty., J. R. Keeling, Asst. City Atty., Corpus Christi, for appellant.
    Howard F. Sudduth, Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal by the City of Corpus Christi, Texas, from an order temporarily enjoining it from the enforcement of that portion of City Ordinance 6530, enacted on May 29, 1962, which requires payment of a fee in the amount of $5.00 as a prerequisite to issuance of a City Chauffeur’s License or renewal thereof.

Harvey Ray Gilley, appellee, brought this suit individually and in a representative capacity for all persons engaged in the occupation of driving taxicabs in the City of Corpus Christi, Texas, for temporary and permanent injunction prohibiting said City from requiring payment of such fee as one of the conditions for securing a City Chauffeur’s License. At all times material to this suit it was established that appellee held a valid State Chauffeur’s License as provided for by Article 6687b, Vernon’s Ann.Tex. Civ. St. After preliminary hearing, the trial court granted a temporary injunction in favor of appellee, individually and as representative of such class, and found, among other things “ * * * that the provision of said ordinance relating to the payment of fees to the City of Corpus Christi, Texas, for the issuance and/or renewal of such City Chauffeur’s Licenses required of taxicab drivers is illegal, unconstitutional and in conflict with the State Laws relating to the payment of fees for licenses to drive motor-vehicles . ...”

Although appellant urges six points of error, the case turns upon the correctness of the last-mentioned findings of the trial court. The City, by its point number six, contends that it may properly charge a reasonable regulatory fee for the issuance of a City Chauffeur’s License and that there is no conflict between Ordinance 6530 and State Law, particularly Article 6687b, V.A. 'T.S., in such respect.

We have concluded that the judgment of the trial court should be affirmed. The controlling issue in this case has heretofore been decided adversely to appellant’s contention by the Waco Court of Civil Appeals in the case of Reed v. City of Waco, 223 S.W.2d 247, 256 (1949), with writ of error unqualifiedly refused by the Supreme Court of Texas. See also Payne v. Massey, 145 Tex. 247, 196 S.W.2d 493 (1946); Ball v. City of McKinney, 286 S.W. 341 (Tex.Civ.App., 1926 wr. ref.); City of El Paso v. Look, 288 S.W. 506 (Tex.Civ.App., 1926, wr. ref.) ; City of Waco v. Grimes, 288 S.W. 1113 (Tex.Civ.App., 1926, wr. ref.); Ex parte Heine, 158 Tex.Cr.R. 248, 254 S.W.2d 790.(1953). These cases are authority for the proposition that although a City may reasonably require a City Chauffeur’s License under certain conditions, it is powerless to require the payment of a fee as a prerequisite to the issuance of same, and, particularly, for the operation of a taxicab.

Appellant’s contention that the City is entitled to charge a fee in connection with issuance of a City Chauffeur’s License under the decision in City of Stamford v. Ballard, 162 Tex. 22, 344 S.W.2d 861 (1961), is not well taken. In that case the Supreme Court held that a boat inspection ordinance of the City of Stamford was not in conflict with Article 1722a, Vernon’s Ann.P.C. (Texas Water Safety Act), and that a reasonable inspection fee imposed by said ordinance was valid. The Supreme Court pointed out that the provisions of the Water Safety Act relate strictly to registration of motorboats and issuance of evidence of title, and not to the matters covered by the said ordinance. It appears further that the Water Safety Act contains a provision which, in part, reads “ * * * nothing in this Act shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels, the provisions of which are consistent with the provisions of this Act, amendments thereto or regulations issued thereunder * * This is not analogous to the situation presented here where the Statute, Article 6687b, V.A.T.S., contains comprehensive and detailed provisions concerning Chauffeur’s Licenses and imposes a fee in connection with issuance thereof which must be paid to the State. We expressly overrule the contention of appellant that City of Stamford v. Ballard, supra, modifies or changes the rules announced in Reed v. City of Waco, supra, or Payne v. Massey, supra.

Appellant’s points one through five do not require extended discussion. Under City Ordinance 6530 a taxi driver is required to obtain a City Chauffeur’s License in order to operate a cab for persons holding franchises from the city to engage in such business, and it is a criminal offense under such ordinance for a franchise holder to employ a driver who does not hold such City Chauffeur’s License. It thus appears that a person who is otherwise entitled to drive a cab in Corpus Christi, Texas, is denied a City Chauffeur’s License solely because of nonpayment of the $5.00 fee in question, and, as a practical matter, is denied the right to work at his occupation. This case presents a situation in which the trial court can properly find that appellee has established a property right sufficient to enjoin the enforcement of an unconstitutional or void ordinance which causes him irreparable injury for which he has no plain, adequate and complete remedy at law, and is within the exception to the rule that ordinarily an injunction will not be granted to stay enforcement of a penal ordinance. City of Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S.W. 528 (1894); Neal v. Boog-Scott, 247 S.W. 689 (Tex.Civ.App., 1923, no writ history) ; Bielecki v. City of Port Arthur, 12 S.W.2d 976 (Tex.Com.App., 1929) ; Adams v. Antonio, 88 S.W.2d 503 (Tex.Civ.App., 1935, wr. ref.) ; Smith v. Decker, 158 Tex. 416, 312 S.W.2d 632 (1958); Cf. State v. Logue, Tex., 376 S.W.2d 567 (1964). The sole effect of the temporary injunction herein is to prevent the City from requiring payment of the said fee as a prerequisite to issuance of a City Chauffeur’s License until the case is determined on the merits; meanwhile, appellee has been required to post bond in the amount of $750.00 conditioned that the temporary injunction was not improperly granted. The evidence was sufficient to support a finding by the trial court that ap-pellee was representative of the class of taxi drivers involved.

The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised, its order should not be overturned unless the record discloses a clear abuse of discretion Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947). Abuse of discretion does not appear in this case.

The judgment of the trial court, granting temporary injunction, is affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    Sue Bright JAMESON, Appellant, v. Wayne Leo SIBERT et al., Appellees.
    No. 6560.
    Court of Civil Appeals of Texas. Beaumont.
    April 23, 1964.
    Rehearing Denied May 20, 1964.

      McDaniel, Hunt & Fairchild, Center, for appellant.
    Garrison, Renfrow, Zelcskey, Cornelius & Rogers, Lufkin, Baker, Botts, Andrews, & Shepherd, Houston, Ramsey, Ramsey & Smith, San Augustine, for appellees.
   STEPHENSON, Justice.

This is an action for damages arising out of an automobile collision. Plaintiff was a passenger in one of the automobiles, and brought this suit against her sister, hereinafter referred to as “Defendant Kennedy”, the driver of the automobile in which plaintiff was riding, and also against the estate of the driver of the second automobile involved in the collision. At the close of plaintiff’s testimony, a verdict was directed in favor of such estate. The testimony was completed, and judgment rendered by the court upon the answers of the jury to the special issues, for the defendant Kennedy.

Plaintiff alleged she was an “occupant” in the automobile driven by her sister, and that her sister was guilty of certain acts of negligence, which acts also constituted gross negligence. Neither plaintiff nor the defendant driving the car in which she was riding specifically mentioned Art. 6701b, which is commonly referred to as the “guest statute”.

The jury found the defendant Kennedy guilty of certain acts of ordinary negligence, and not guilty of any acts constituting gross negligence. The jury also answered “No” to the following special issue:

“Special Issue No. 34
“Do you find from a preponderance of the evidence that the plaintiff, Sue Bright Jameson, expressly or impliedly, agreed to pay a consideration to the defendant, Harriett Bright Kennedy, for the transportation from the family reunion to the City of Nacogdoches on the occasion in question?
“Answer ‘YES’ or ‘NO’
“Answer No .
“By the term ‘Pay a consideration’ as used in the foregoing issue is meant the payment of a real and tangible benefit in return for the ride other than some exchange of a reciprocal measure of hospitality, a social amenity or courtesy or the performance of some service in pursuit of a common pleasure or family purpose.”

The parties will be referred to here as they were in the trial court.

Plaintiff contends the trial court erred in rendering a judgment for the defendant Kennedy which was not supported by the verdict of the jury. It is argued that special issue No. 34, above, is meaningless, and that there is no finding by the jury that plaintiff was a “guest”. Plaintiff also contends the trial court should not have submitted special issue No. 34 because the defendant had not plead such statute as a defense. The guest statute is not an affirmative defense which must be plead by a defendant. It is a law affecting the substantive rights of all litigants. In order to state a cause of action, it was incumbent upon the plaintiff to either plead she came under the exception to the guest statute, that is, that she was not a guest as contemplated by this statute, or that she was a guest and that defendant was guilty of acts of gross negligence. Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Rowe v. Rowe, Tex.Civ.App., 119 S.W.2d 194.

The evidence showed the plaintiff and the sister driving the automobile in which plaintiff was riding, had been to a family reunion near Bronson, Texas, and were driving to Nacogdoches, Texas. The plaintiff intended to spend a few days in the home of this sister, and assist in the care of their mother.

There was no tangible benefit flowing to the driver of the automobile sufficient to operate as the motivating consideration for plaintiff’s transportation in the Kennedy automobile. The willingness of the plaintiff to assist her sister in the care of their mother was not intended as a means of earning her transportation in the Kennedy automobile. Easter v. Wallace, Tex. Civ. App., 318 S.W.2d 916.

The burden of proof was upon the plaintiff to establish-by a preponderance of the evidence the relationship of joint enterprise, or else she would occupy the status of her sister’s guest. Webb v. Huffman, Tex.Civ.App., 320 S.W.2d 893. This the plaintiff failed to do.

Plaintiff ■ also complains of the action of the trial court in withdrawing that part of the case from the jury and rendering judgment for the estate. The trial court could take such action only if there was no evidence to sustain a finding of negligence or proximate cause on the part of the driver of the second automobile. This is a question of law to be determined by considering only the evidence which would have supported such findings, and disregarding all other evidence. This collision occurred when the driver of the automobile in which plaintiff was riding pulled into the left lane of the highway as going up a hill, and ran into the second automobile in such left lane just over the crest of the hill. A review of the testimony shows no evidence of negligence on the part of the driver of the second automobile, and no evidence that any act or omission on the part'of the driver of such second automobile could have been the proximate cause of the collision. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560.

Judgment affirmed.


author: RENFRO, Justice.

text:
    A. L. ANDREE, Appellant, v. EDWARDS DRILLING COMPANY, Appellee.
    No. 16518.
    Court of Civil Appeals of Texas, Fort Worth.
    April 17, 1964.
    Rehearing Denied May 22, 1964.

      Peery & Wilson, and Don B. Morgan, Wichita Falls, for appellant.
    Rodgers & Stephens, and T. J. Rodgers, Graham, for appellee.
   RENFRO, Justice.

As plaintiff, A. B. Edwards, sole owner of Edwards Drilling Company, recovered a judgment on an open account against A. L. Andree. The account was based on cleaning out work done on oil wells on Gray Brothers lease in Gray County.

In his appeal Andree contends there was no evidence and insufficient evidence to sustain a finding that he contracted with Edwards for the labor and services involved, and that the court erred in holding the two year statute of limitation was tolled as to the part of the debt incurred two years before suit was filed.

Plaintiff was in the oil well servicing business. In May of 1960, as a result of a telephone call, the work in question was begun, and the account was set up in the name of A. L. Andree.

Invoices were sent to Andree. Statements were' regularly sent to Andree. After three or four months had elapsed and the account had not been paid, plaintiff talked to Andree on the telephone and he “ * * told me he would try to take care of it or a part of it in a few days * * In another five or six months Mr. Andree agreed "that he would pay us $100 a month for three months and at the end of three months he would take care of the balance of the bill, which he did send $100 in a few days.” Two months later plaintiff called Andree again and he sent another $100. The above mentioned payments were by checks, signed by Miller and Banks, with the words, “Please credit account of A. L. Andree”, typed on the face of both checks. Plaintiff never received any more payments on the account.

Miller and Banks were well operators. The evidence does not show them to have been operators of the Gray Brothers lease wells in 1960 when plaintiff performed the services involved.

Andree told plaintiff he “was operator of the lease and he paid the bills for the lease.” Defendant never told plaintiff anyone else was responsible for the account and never denied that he was responsible therefor.

Sometime in May of 1962, plaintiff again talked to defendant by telephone. Defendant told him he was unable to do anything at that time and would write a letter to plaintiff stating what he would be able to do or willing to do about the balance owing on the account. Defendant told plaintiff he owed the debt and was making an effort to pay it, or wanted'to make arrangements to pay it.

Soon after the last telephone conversation, plaintiff received from defendant the following instrument, signed and sworn to by defendant:'

“Edwards Drilling Company
“P. O. Box 1140
“Graham, Texas
“Gentlemen:
“On June 6, 1960 and July 7, 1960, the Edwards Drilling Company of Graham, Texas, performed-certain services to help operate the oil and gas lease covering the following described land in Gray County, Texas, to-wit:
“All of the North Half (N/2) of the Northwest Quarter (NW/4) of Section 102, Block B-2, H&GN Ry. Co. Survey.
“I recognize that the invoices covering the above mentioned services amounts to $1,515.35 is still due and unpaid.
“I further recognize and agree that you have now a valid materialman’s lien on said lease and the right to fix the same by filing such lien of record in Gray County, T exas.
“In consideration of your not filing such, lien at this time I agree that such lien may be filed by you at any time within 60 days of this date, and when filed it will be regarded as having been filed within the time required by law, even though it may have been actually filed more than six months after the 6th day of June and the 7th day of July, 1960, compliance with the law with respect to the date of filing being hereby-waived; and, if you prefer, you may file this agreement in the Lien Records of Gray County, Texas, and it will-be and of all the force and effect as if such lien were filed in accordance with law.
“Witness my hand this the 24th day of May, 1962.
“A. L. Andree”

Defendant did not appear as a witness to testify in his own behalf; hence, the testimony of plaintiff is uncontradicted.

In an action on an account, as in other cases, the bar of the statute may be removed by an acknowledgment in writing by the defendant of the validity of the plaintiff’s claim. 1 Tex.Jur.2d 293, § 36.

In Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604, it was said: “We understand the rule to be that, ‘This new promise need not be expressed in the writing, but may be implied from what is written.’ ‘An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness.’ York v. Hughes (Tex.Com. App.) 286 S.W. 165; Coles v. Kelsey, 2 Tex. 541, 47 Am.Dec. 661; Howard v. Windom, 86 Tex. 560, 26 S.W. [483] 485; Stein v. Hamman [118 Tex. 16] (Tex.Com.App.) 6 S.W. (2d) 352 (certified question opinion adopted).”

The above rule was approved in Poe v. Poe, Tex.Civ.App., 118 S.W.2d 831; Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130; Beeler v. Harbour, Tex.Civ.App., 116 S.W. 2d 927; Standard Surety & Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d 789; Luck v. Riggs Optical Co., Tex.Civ.App., 149 S.W.2d 204; Krueger v. Krueger, 76 Tex. 178, 12 S.W. 1004, 7 L.R.A. 72.

Defendant regularly received monthly statements showing the account was charged to him. The statements were itemized as to exact services, when rendered and amount charged. By numerous telephone conversations with plaintiff he acknowledged the debt and did arrange to have $200 paid on the account. He knew plaintiff was looking to him and to him alone to pay the account. According to plaintiff’s uncontradicted testimony, defendant promised several times to pay the account.

With that background, defendant executed the instrument above set out. We believe the instrument is sufficient to toll the statute. The evidence is also sufficient to support the trial court’s judgment that defendant is personally liable for the debt.

Judgment affirmed.


author: WERLEIN, Justice.

text:
    James H. QUARLES, Appellant, v. Carl SMITH, Appellee.
    No. 14320.
    Court of Civil Appeals of Texas. Houston.
    April 23, 1964.
    Rehearing Denied May 28, 1964.

      Ben G. Levy, Houston, for appellant.
    Talbert, Giessel, Cutherell & Barnett, Howell E. Stone, Houston, for appellee.
   WERLEIN, Justice.

Appellant, James H. Quarles, intervened in a suit which appellee brought against Houston Lighting & Power Company to recover for personal injuries sustained by him. Appellant alleged that he and ap-pellee had entered into a written contract whereby appellee agreed to pay him for investigative work 25% of any amount recovered by appellee. Appellee’s suit against Houston Lighting & Power Company was settled without a trial and the judgment entered therein ordered $7500.00 claimed by appellant out of the agreed judgment, to be paid into the registry of the court, subject to a determination of appellant’s claim under his alleged contract. From a take-nothing judgment rendered against him based on the jury verdict in this severed cause, appellant has perfected his appeal.

Appellant complains of error consisting of the trial judge overruling his motion praying that the judge disqualify himself in the cause because of bias and prejudice against appellant. To such motion appellant attached an affidavit stating that he believed the judge entertained a “fixed bias” and prejudice against him for the reason that the judge in another case, in which appellant was a litigant, had found him in contempt of court and fined him $100.00 because of a remark he had made to opposing counsel on cross-examination, and because in such trial the judge refused most, if not all, of his attorney’s objections to evidence offered by opposing counsel and found for the opposing party although all issues but one were answered in his favor.

Appellant’s said motion was filed' the day the case went to trial and is based entirely upon alleged prejudice against appellant (not appellant’s attorney) and it is based upon the grounds stated in said affidavit. There is nothing in appellant’s affidavit which would support a finding of prejudice on the part of the trial judge, nor is there anything in the record herein, which we have carefully read, to indicate that the trial judge did not conduct the trial in a fair and impartial manner. Certainly, no constitutional or statutory ground for disqualification was alleged. Article V, Sec. 11, Constitution of Texas, Vernon’s Ann.St.; Article 15, Vernon’s Annotated Texas Civil Statutes. No evidence was introduced on the motion which appellant filed alleging prejudice. A judge is presumed to be qualified until the contrary is shown. Pinchback v. Pinchback, Tex.Civ.App., 341 S.W.2d 549, writ ref., n. r. e. Even if we should presume prejudice on the part of the trial court toward appellant, that alone would not constitute error. Appellant could, of course, complain of an erroneous ruling made by the court as a result of prejudice, but it would be the error in the ruling rather than the prejudice, that would give him the right to complain. Appellant has no point assigning any erroneous ruling because of alleged prejudice. Chaffin v. State, Tex.Cr.App., 24 S.W. 411 ; Merchants National Bank v. Cross, Tex. Civ.App., 283 S.W. 555; Coker v. Harris, Tex.Civ.App., 281 S.W.2d 100, error ref., n. r. e.; Aldridge v. State, Tex.Cr.App., 342 S.W.2d 104.

By his second Point appellant complains of the court overruling his “Objection and Exception 1(d) to * * * Special Issue No. 1, because, * * * the Court instructed the jury that * * * if he (Plaintiff) docs not have the ability to understand the nature and effect of the act in which he is then engaged * * * ’ then he is a ‘ * * * person * * * not competent to enter into an agreement.’ ” Special Issue No. 1 inquired whether appellant and appellee entered into a contract, as that term is defined, on February 19, 19S9. This was basically appellant’s issue and one upon which he had to obtain ah affirmative finding. His objection and exception 1(d) to the court’s charge is directed solely to Special Issue No. 1. No objection or exception is leveled at the court’s instruction other than the general objection that appellant’s counsel objected to the definition of “contract” being offered by plaintiff because it is “misleading, unnecessarily complex and because it places the burden of proof upon the wrong party by implication.” This general objection points out nothing to the trial court and is wholly inadequate. It fails to direct the court to any specific error in the instructions. Moreover, no instruction in proper form was submitted by appellant. Rule 274, Texas Rules of Civil Procedure.

Appellant next complains that the court erred in overruling his motion for a new trial since the exhibits attached thereto show that plaintiff’s testimony to the effect that he did not understand or comprehend the nature of the contract he entered into, was false and perjurious. The point is too broad and indefinite to require consideration by this Court. Rule 374, T.R. C.P. In reading the statement under such Point it seems that appellant is basing his contention upon newly discovered evidence consisting of a number of legal instruments of record in Harris County, which purport to have been signed and executed by ap-pellee. It appears that at some point in appellee’s testimony on cross-examination he testified that he had not signed any instruments or in any event he “didn’t sign any of his knowledge”. Appellant in an effort to show that appellee had knowingly signed the contract upon which appellant’s claim was based, inquired as to other instruments which appellee either denied signing or claimed that he did not sign “of his knowledge”. These instruments were unrelated to the suit at hand. Appellant was merely trying to show that appellee was falsely testifying and was making an effort to impeach him. Appellant now contends that a new trial should be granted because there were attached to appellant’s motion for new trial certified copies of a number of instruments of record in Harris County which bore appellee’s signature.

It is our view there was no error on the part of the court in overruling appellant’s motion for new trial. Actually, some of the attached instruments had been .introduced in evidence for the purpose of impeaching appellee. The other instruments attached to the motion for new trial were also produced and attached thereto for impeachment purposes, and were cumulative of those already in evidence. There was nothing to indicate that diligence on the part of appellant would not have disclosed the other recorded instruments in time for appellant to introduce them at the trial for impeachment purposes. It is our view that there was no newly discovered evidence that would warrant granting appellant a new trial.

Judgment affirmed.


author: BARROW, Justice.

text:
    J. R. MARTINEZ et ux., Appellants, v. H. E. BUTT GROCERY COMPANY, Appellee.
    No. 14253.
    Court of Civil Appeals of Texas. San Antonio.
    May 6, 1964.
    Jacob G. Hornberger, Laredo, for appellant.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   BARROW, Justice.

This is a slip and fall case, and plaintiffs appealed from a talce-nothing judgment rendered upon the jury’s verdict that Mrs. Martinez’s fall was the result of an unavoidable accident. The jury did not find that either party committed any act of negligence. Damages were found in the amount of $1,800.00 as a result of the fall.

On July 11, 1960, Mrs. Martinez entered the H. E. B. grocery store in Laredo, Texas, to buy groceries, and after walking about ten feet slipped on some mayonnaise which had been dropped on the floor by another customer, Miss Willa Nickens. Miss Nickens testified that after dropping the jar of mayonnaise, as she started to go for a stock boy to clean up the mess, she bumped into Mrs. Martinez and warned her of the mayonnaise; then after taking five or ten steps she heard Mrs. Martinez fall. Mrs. Martinez denied having had any warning or knowledge of the mayonnaise before her fall.

Miss Paredes, a checker employer by ap-pellee, testified that she was checking out a customer at the checking stand, about eight to twelve feet from where the jar was dropped; that she heard it break and immediately turned and called a stock boy who was in the front part of the store, about sixteen feet away. As Miss Paredes turned back, Mrs. Martinez fell. Jose Vichareli, a stock boy employed by appel-lee, testified that he was putting up window ads about eighteen feet from where the jar was dropped and he heard it drop. He immediately started to go and clean it up, but before he got to where he could see the area, Mrs. Martinez had fallen.

The jury found that appellee knew that the foreign substance was on the floor prior to the time that Mrs. Martinez slipped and fell. In response to Special Issue No. 2, the jury found that the foreign substance had not been on the floor for a sufficient length of time for the appellee to have removed it before she slipped and fell. Primary negligence and proximate cause issues were submitted conditioned upon an affirmative answer to this issue and were therefore unanswered.

Appellants present two points as grounds for remand of this case for a new trial. First, it is urged that two of the jurors were guilty of misconduct in visiting the store during the trial and discussing their findings with other jurors. Three jurors testified on the hearing of the motion for new trial, and at the conclusion the trial court found that two jurors “were guilty of misconduct in conducting their own investigation into the facts of this case by visiting the store of the defendant where the plaintiff slipped and fell, and that such misconduct was not material. The Court further finds and concludes as a matter of law from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that no injury probably resulted to the said plaintiffs by virtue of such misconduct.” The trial court then overruled the motion for new trial.

It is well settled that 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 rec- or as a whole, (3) that injury probably resulted to the complaining party. Rule 327, Texas Rules Civil Procedure; Willis v. Goodrum, Tex.Civ.App., 360 S.W.2d 182.

The viewing of the store by the two jurors was improper and established the misconduct. Murphy v. Davis, Tex.Civ.App., 305 S.W.2d 218; Texas Electric Ry. Co. v. Wooten, Tex.Civ.App., 173 S.W.2d 463. However, appellants failed to show that this misconduct was material and that injury probably resulted to them from same. Appellants introduced a plat in evidence at the trial, which showed the layout within the store and various material measurements. The two jurors testified that their visit confirmed the accuracy of these measurements. Appellants concede that no new evidence was introduced by these two jurors. It was shown that their mention of the visit to the other jurors occurred in a most casual manner. Nothing prejudicial to appellants was observed by these two jurors on their visit to the store or related in their discussion of same with other jurors. The error was therefore harmless.

By their second point, appellants complain of the trial court’s refusal to submit their Special Requested Issue reading as follows: “Do you find from a preponderance of the evidence that the foreign substance had been on the floor for a sufficient length of time for the defendant to have removed the same or safeguarded the area, before plaintiff slipped and fell?” It is seen that this requested issue is substantially the same as Special Issue No. 2, with the additional element of whether the defendant had time to safeguard the area. Appellants pleaded that appellee negligently failed to remove the foreign substance or take any precaution to prevent injury to invitees as a result thereof.

In H. E. Butt Grocery Company v. Johnson, Tex.Civ.App., 226 S.W.2d 501, this Court stated the applicable rule as follows:

“In order to establish liability against the defendant operator of the store it is necessary to show:
“1. That the defendant put the foreign substance upon the floor, or,
“2. That the defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it, or
“3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.”

See also, O’Neal v. J. Weingarten, Inc., Tex.Civ.App., 328 S.W.2d 793.

The trial court fairly submitted the second theory of liability, but the jury failed to find the necessary elements. A store operator may also have a duty to warn an invitee in certain cases of any danger, known or imputable to it, that might arise from the use of the premises. Wagner v. Lone Star Gas Co., Tex.Civ.App., 346 S.W.2d 645. Appellants urge that although ap-pellee was found not to have had sufficient time to remove the mayonnaise from the floor, its employees should have warned Mrs. Martinez. There is no evidence that any employee of appellee saw her before her fall.

It is our opinion that the trial court did not err in refusing to submit appellants’ requested issue. We doubt seriously that the requested issue fairly submits the duty to warn. In any event the issue is duplicitous and multifarious in that it inquires as to whether appellee (1) had sufficient time to remove the foreign substance, or (2) had time to safeguard the area. The submission of the breach of duty to warn of a dangerous condition, even if raised by proper pleadings and evidence, was waived by appellants’ failure to submit a substantially correct issue. Rule 279, T.R.C.P.

The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    NATIONAL MILITARY MUTUAL LIFE INSURANCE COMPANY, Appellant, v. Rufus CROSS, Appellee.
    No. 52.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 30, 1964.

      George A Lynn, Lufkin, for appellant.
    Victor R. Blaine, Houston, for appellee.
   GREEN, Chief Justice.

Appellee was injured and his wife was killed in an automobile accident on December 23, 1959. This suit was filed to recover under the provisions of a Group Policy hereinafter described, and two certificates of insurance issued to appellee and his wife pursuant to said Group Policy. The trial was to the court without a jury. Judgment was rendered for appellee. No findings of fact or conclusions of law were requested or filed. The sole issues on this appeal are: (1) Did appellee and his wife have insurance coverage with appellant as sued for at the time of the accident on December 23, 1959? (2) Was the suit timely filed under the provisions of the policies and the applicable statutes?

On March 21, 1959, appellant issued and delivered to Statewide Automobile Association, Houston, Texas, its Group Policy No. 0142-B, being appellee’s Exhibit No. 1, which reads in part as follows:

“IN CONSIDERATION OF the payment of the premium as herein provided, and subject to the provisions, conditions and limitations herein contained, National Military Mutual Life Insurance Company does hereby insure the eligible members (hereinafter called the Insured) of the STATEWIDE AUTOMOBILE ASSOCIATION, HOUSTON, TEXAS, AGAINST loss resulting from bodily injuries sustained through accidental means as limited and described below * *

On October 17, 1959, appellee and wife became members of Statewide Automobile Association, with the understanding that he would pay their dues, which included insurance premium for both under the above Group Policy, by installments. Though there is a conflict in the evidence, appellee testified that he fully paid up all dues for the two memberships by the 15th of the next month and that both he and his wife became eligible for coverage under the provisions of said Group Policy. Evans, the manager of the Automobile Association in 1959, testified that when a member paid up his dues so as to become eligible, a company check with an application for a certificate of insurance under the Group Policy was sent by Evans to appellant, and a certificate was mailed to him with coverage for the member as provided by the Group Policy, said certificate to he back dated to the time of the member’s eligibility. He further testified that it was understood between the association and the insurance company that all eligible members of the association were covered by said Group Policy from the date they became eligible members.

Appellee introduced in evidence as his exhibits (2) and (3) two certificates of insurance executed and delivered by appellant. Exhibit No. 2, being National Military Life Insurance Company Certificate No. 3-181, certifies that Rufus Cross is an eligible member of Statewide Automobile Association, Houston, Texas, and is insured subject to the provisions of its Group Policy “for the period of one year, beginning at 12:00 o’clock Noon the 17th day of October, 1959 * * and names Johnnie Cross, wife, as beneficiary in case of loss of life. Exhibit No. 3, being appellant’s Certificate No. 3-182, contains exactly the same provisions, except that Johnnie Cross is the insured eligible member, and Rufus Cross, husband, is named as beneficiary in case of loss of life.

Appellant contends by its Point No. 1 that the evidence establishes as a matter of law that appellee and his wife were not covered by this insurance at the time of their accident on December 23, 1959. It is appellant’s contention that the undisputed evidence shows that no application for the issuance of the insurance certificates was made to appellant until December 28, 1959, and that the certificates were not issued at the time of the accident, but were in fact issued and delivered not earlier than December 29, 1959, after the happening of the said accident to appellee and his wife. Appellant, to support this contention, relies upon appellant’s Exhibit No. 1, an instrument purporting to be dated December 28, 1959, and which appellee’s witness, Evans, on cross-examination testified appeared to be either the application or similar to the application he sent to appellant for the certificates to be issued to appellee and his wife after their dues had been paid. Evans had no recollection as to the actual date of the application which he sent in. Appellant’s said Exhibit No. 1 showed that the Cross memberships in the automobile association started October 17, 1959. Appellee, Rufus Cross, testified that he had fully paid up the dues for himself and his wife by November 15, 1959. Evans testified definitely, while being questioned about appellant’s Exhibit No. 1, that appellant insurance company had filled in the certificates, including the commencing date of October 17, 1959, shown thereon, and that it was the understanding of the parties, including appellant, that the coverage began October 17, 1959, the date of ap-pellee’s original membership. As stated by Evans on cross-examination by appellant’s attorney:

“This is a special type of coverage and the policies are back dated, and evidently the policy is dated that date, from the date that the — the man has coverage from that date (meaning October 17, 1959, as indicated) regardless of when it was submitted or when it was issued. That was the understanding that we had. Otherwise, they wouldn’t back date it. It wouldn’t make sense.”

The case having been heard by the trial judge without a jury, and there being no findings of facts or conclusions of law, we must pass on the testimony in the light most favorable to the appellee, and indulge every reasonable inference in support of the judgment. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; A. F. Drexler v. Architectural & Commercial Sales, Tex.Civ.App., 375 S.W.2d 550, n. w. h.; Pablo Rosales v. Josefina A. Rosales, Tex.Civ.App., 377 S.W.2d 661, n. w. h.

The best that can be said for appellant’s contention is that an issue of fact was created for the decision of the court. The fact that the certificates themselves expressly provided that they were for the period of one year, beginning October 17, 1959, constituted evidence of probative value that ap-pellee and his wife were covered by insurance on December 23, 1959, the date of the accident. This, with the testimony of Evans that it was the understanding of the parties that the coverage under the Group Policy would start from the time the members became eligible by full payment of dues, plus appellee’s testimony that all of his dues, both for himself and his wife, were fully paid by November 15, 1959, were sufficient to justify the implied finding of the trial court that the appellee and his wife had coverage at the time of the accident in question.

Appellant by his second point submits that the trial court erred in rendering judgment for appellee because it is the uncontradicted evidence that the suit was originally filed more than two years and ninety days after the date of the occurrence of the loss complained of. In this connection appellant relies on two provisions of its Group Policy issued to Statewide Automobile Association, plead as a defense by appellant, and reading as follows:

“9. LEGAL ACTION.

(a) No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years after the expiration of the time within which proof of loss is required by the policy.

“12. PROOF OF LOSS.

Affirmative proof of loss must be furnished to the Company at its said office within ninety days after the date of loss for which claim is made.”

The accident made the basis of this suit occurred December 23, 1959. The suit was filed December 5, 1962. If the above provision 9(a) of the policy is valid, the case was filed too late, and appellant’s second point should be sustained. But such provision is not valid, as it is in conflict with Article 5545, Vernon’s Ann.Tex.Civ.St, which provides:

“No person, firm, corporation, association or combination of whatsoever kind shall enter into any stipulation, contract, or agreement, by reason whereof the time in which to sue thereon is limited to a shorter period than two years. And no stipulation, contract, or agreement for any such shorter limitation in which to sue shall ever be valid in this State.”

Under provision 9(a) of the Policy, the insured is not permitted to file suit until sixty days after proof of loss is filed, but must file suit, not within two years after this sixty days have passed, but within two years from the expiration of the time within which proof of loss is required. Thus the time given the holder of the policy in which to file suit is limited to a period of twenty two months, or two months short of the two years required to be given under the provisions of Article 5545, supra. The provision being invalid and void, the four year statute of limitations, Article 5527, V.A.T.S. governs. Culwell v. St. Paul Fire & Marine Ins. Co., Tex.Civ.App., 1935, 79 S.W.2d 914, writ dism.; American Surety Co. of New York v. Martinez, Tex.Civ. App., 1934, 73 S.W.2d 109, writ ref.; Fire Ass’n of Philadelphia v. Richards, Tex.Civ.App., 1915, 179 S.W. 926; Taylor v. National Life & Accident Ins. Co., Tex.Civ.App., 1933, 63 S.W.2d 1082, writ dism.; Benefit Ass’n of Ry. Employees v. O’Gorman, Tex. Civ.App., 1946, 195 S.W.2d 215, writ ref., n. r. e.; 32 Tex.Jur.2d, Insurance, § 395, page 609, et seq.

Appellant cites as authority for his argument two cases in which a provision in a written contract requiring suit to be brought within two years of the accrual of the cause of action was upheld as not being in violation of Article 5545, V.A.T.S. Holston v. Implement Dealers Mut. Fire Ins. Co., 5 Cir., 206 F.2d 682; Texas & P. Ry. Co. v. Langbehn, Tex.Civ.App., 1912, 150 S.W. 1188. For the distinction between such provision and the one in the instant case, read the opinion of Judge Hickman delivered while he was Chief Justice of the Eastland Court of Civil Appeals in Culwell v. St. Paul Fire & Marine Ins. Co., supra.

These being the only points of error raised by appellant in its brief, and both being overruled, the judgment is affirmed.


author: BELL, Chief Justice.

text:
    The STATE of Texas ex rel. Noble JOHNSON, Appellant, v. Louis OTTER et al., Appellees.
    No. 14457.
    Court of Civil Appeals of Texas. Houston.
    May 26, 1964.
    Fred Carver, Beaumont, for appellant.
    McCall & McCall, Hamshire, Everett B. Lord, Walter Sekaly, Beaumont, for ap-pellees.
   BELL, Chief Justice.

' This is an appeal in an election contest. The appellant, Noble Johnson, who was a candidate for the office of Sheriff of Chambers County in the Democratic Primary election held May 2, filed a suit May 8 contesting the election. On a basis of the returns Louis Otter received a majority of the votes cast. The members of the County Democratic Executive Committee were permitted to intervene. On May 18 special exceptions to the appellant’s petition were sustained, and on the 19th of May appellant filed his first amended original petition. Intervenors and the defendant, Louis Otter, filed answers containing numerous special exceptions to this amended petition. These exceptions were sustained by the trial court on May 22. Appellant refused to amend whereupon judgment was rendered dismissing the suit with prejudice. It is this judgment from which an appeal has been taken. Appellant timely gave notice of appeal, filed his appeal bond and this day filed his transcript in this Court. At the same time he filed his motion for a preferred setting.

We refuse the motion for a preferred setting and dismiss the appeal because the appeal is moot.

We know that the runoff primary is by law to be held June 6. We also know the date for commencement of absentee voting is tomorrow, May 27. Article 5.05, Subd. 16, of the Election Code, V.A.T.S.

This is an appeal from a judgment sustaining exceptions to the petition and dismissing the petition. We cannot possibly set the case for submission, give time for preparation of briefs, take submission and decide the appeal on its merits before commencement of the time for absentee voting. Even if we could do all this and should determine the trial court erroneously sustained the special exceptions, it would not be possible for the trial court to hear the case on its merits prior to the commencement of absentee voting. The voters have a valuable right under the statutes to have absentee ballots printed and available to them at the prescribed time. Polk v. Davidson et al., 145 Tex. 200, 196 S.W.2d 632, and authorities there cited.

The appeal is dismissed.


author: ARCHER, Chief Justice.

text:
    J. R. BAXTER, Appellant, v. GLASTRON BOAT COMPANY, Appellee.
    No. 11190.
    Court of Civil Appeals of Texas. Austin.
    April 22, 1964.
    Rehearing Denied May 20, 1964.
    Waller M. Collie, Jr., Dallas, Mueller & Criss, Austin, for appellant.
    Niemann & Babb, William B. Hilgers, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a summary judgment.

Appellant filed suit to recover a balance of a bonus which he alleged was due him. under an oral contract of employment with appellee. Among other defenses appellee plead that the agreement was within the Statute of Frauds in that it could not be performed within a year and filed a Motion for a Summary Judgment.

Plaintiff, appellant herein, filed his answer to defendant’s Motion for Summary-Judgment attaching thereto his affidavit.

Plaintiff, in his First Supplemental Petition, alleged in paragraph 11:

“Plaintiff would allege and show that even if the agreement upon which he relies is within the Statute of Frauds, which plaintiff does not admit and which is specifically denied, the defendant should be estopped from pleading the Statute of Frauds for the reason that plaintiff gave up lucrative employment to take his position with defendant, that in ‘reliance on the promises of the president of defendant he incurred losses in the amount of $7,000.-00 in transferring his family, selling his home, etc., and remaining in Austin for approximately two years, that he was in fact paid portions of his bonus in March, April, May, June, July, August and September of 1960 in the amount of approximately $3,000.00; that shortly after his bonus was due he contacted the president of the defendant regarding his bonus and that he was told by said president that he had a bonus coming but because of the financial position of the company at that time that they were unable to pay him his full bonus and that he was led to believe that when the financial position of the company improved he would be compensated for his loss.”

In Mr. Baxter’s affidavit he stated:

“In connection with Paragraph 2 of Paragraph III of Plaintiff’s Original Petition in said suit, I state that from January 1, 1960 through approximately March 1, 1960, I was paid $800 per month by way of salary, said salary being payable bimonthly on approximately the 1st and 15th of each month. On approximately March 2nd or 3rd of 1960, I went to Mr. Robert R. Hammond for the purpose of discussing my salary arrangement with him and in a conference with him told Mr. Hammond that I was having a very difficult time meeting my usual living expenses on a salary of $800 per month and requested that we work out something where I could draw an additional sum which would be charged against my bonus. At the time of this conference, I already knew that the company had changed from a calendar to a fiscal year basis and that the company’s fiscal year would end on August 31, 1960. Mr. Hammond stated to me that the company would be willing to pay me an additional $200 per month, with the understanding that such additional $200 per month would be charged against the 2% bonus which we had agreed on. He further stated that the bonus would be payable to me after the close of the corporation’s fiscal year ending August 31, 1960. I stated to Mr. Hammond that this would be agreeable with me and I stated that I would accept this offer as I realized that it would be convenient and consistent with company policy to base my bonus upon the fiscal year ending August 31, 1960 rather than the calendar year 1960. I relied upon Mr. Hammond’s agreement to pay me a 2% bonus of the increase in sales of the fiscal year ending August 31, 1960 over the calendar year 1958, and that the extra $200 per month should be a charge against such bonus, and I continued to work for Glastron Boat Company in reliance upon said agreement.”

We have reviewed the pleadings, affidavits and the depositions of Baxter and Hammond, and believe that a genuine issue of material fact was raised to be determined by the Court or jury as to whether a new contract was made in March of 1960 whereby plaintiff and defendant changed their agreement as contended for by appellant and which was claimed to be not supported by consideration and not supported by the pleadings, precluded defendant’s right to summary judgment. San Antonio Light Pub. Co. v. Moore, Tex.Civ.App., 101 S.W. 867, er. ref.

Rules of Civil Procedure, Rule 166-A.

In Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, the Supreme Court stated:

“[1, 2] In passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can properly be drawn in his favor.
* * * As stated in Rossiter v. Vogel, 2 Cir., 134 F.2d 908, 912, ‘ * * * where facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment. * * *’ We hold, therefore, that when the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party.”

Gibler v. Houston Post Company, Tex.Civ.App., 310 S.W.2d 377, er. ref., n. r. e.

The judgment of the Trial Court is reversed and the case is remanded for a trial on its merits.

Reversed and Remanded.


text:
    The CITY OF AUSTIN, Appellant, v. Stanley Gordon HOFFMAN, a Minor et al., Appellees.
    No. 11194.
    Court of Civil Appeals of Texas. Austin.
    May 6, 1964.
    Rehearing Denied May 27, 1964.

      Doren R. Eskew, City Atty., Thomas R. Hunter, Asst. City Atty., Austin; Gay & Meyers, Austin, for appellant.
    Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment for $82,243.70 based on a jury verdict favorable to appellees.

The suit was filed by Howard B. Hoffman and his minor son, Stanley Gordon Hoffman for damages growing out of personal injuries sustained by the son in a collision between a motor scooter operated by the son and a pickup belonging to the City of Austin, and operated by its employee.

The appeal is predicated on 13 points assigned as error by the Court and are that the Court erred in defining “proper lookout,” “excessive speed,” etc., as applied to the minor in such manner as to cause the jury to judge his conduct by that of a child, instead of the degree of care required of an adult, in suppressing any showing to the fact that the minor had a driver’s license; in refusing pleadings that the father of the minor was negligent in permitting the minor to ride the scooter under the circumstances, in permitting ap-pellees to file a Trial Amendment after the jury had returned its verdict and had been discharged; in permitting appellees to reopen their case and to introduce evidence as to the filing of their claim after the jury had returned its verdict; in submitting issues Nos. 42 and 43 as to further medical services to be furnished the minor during his minority, and after reaching his majority, in submitting issue No. 44 as to the minor’s potential earning power in the absence of testimony; in submitting issue No. 45, in the absence of testimony, that the minor would receive, or as to the costs thereof; in refusing witness Swanzy to testify as to the speed of the scooter at the time of and immediately prior to the collision; in permitting Dr. Zedler to testify as to the meaning of and results from a psychological test given to the minor; in submitting issue No. 48 because the elements of damage were not therein specified, and the jury being requested to place a money value on physical impairment and mental impairment of the minor; and finally in rendering judgment in favor of the minor for $25,000.00 for pain and suffering, such finding being greatly excessive.

The minor was about 13 years old. He and a friend were riding a motor scooter on Montopolis Drive when they were involved in a collision with a city truck at the intersection of Montopolis Drive and approaching its intersection Felix Avenue, and when the driver of the truck was making a left turn to go into Felix Avenue in an easterly direction the scooter ran into the right of the truck and the minor appel-lee was thrown from the scooter and injured seriously.

We insert herein for orientation and ii-lustration purposes a plat of the area with identification marks and notations thereon:

APPROXIMATE POSITION OF CITY TRUCL HOFFMAN SCOOTER, UNIDENTIFIED CAR AND BISHOP VEHICLE WHEN CITY TRUCK FIRST BEGAN ITS LEFT TURN

#1 Cfty Truck #2 Hoffman Scooter #4 Unidentified #5 Bishop Vehicle

On the occasion of the collision, the weather was clear and the surface of the streets was dry.

It does not appear that there is ~ny serious dispute as to the facts concerning the happening of the accident, but the manner of the trial and the procedure is under attack by the appellant as has been mentioned in 'a restatement of the points of error, and the law as controls the legal effect of the procedure of the trial.

The case was submitted to a jury on 48 special issues, with definitions and instructions in connection therewith.

Appellant objected to and complains of the definition of negligence as applied to Stanley Hoffman, as the doing of that which an ordinary prudent child of his age, intelligence, etc. would not have done under the same or similar circumstances, or the failure to do so, and of ordinary care as applied to Stanley Hoffman as meaning the degree of care which an ordinary prudent child, etc. would have exercised, etc., and “proper lookout” and “excessive speed” as applied to Stanley Hoffman being defined as that of a child of the same age and experience, instead of holding him to the degree of care required of an adult.

We do not believe that the Court’s definition of proper lookout and excessive speed was error in fixing the standard of care of Stanley Hoffman as that of a child of the same age, experience and intelligence instead as that of an adult driver of a motor vehicle.

The general rule is that a minor child is required to use only the care which a child of the same age, intelligence and ' experience would use.

In Renegar v. Cramer, Tex.Civ.App., 354 S.W.2d 663, er. ref., n. r. e., this Court held that a 141/2 year old should be judged by the adult standard of care, but stated:

“If appellant had been 11 years old at the time of the Collision, we would follow the decision in Dallas Railway. Since she was then 14i/2 years of age we believe, under the cases cited by appellant that she is subject to the rule prescribed for a 16-year old person in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, * * At page 676.

It would appear that if a child is under the common law bracket of fourteen, the Texas Courts apply the standard of care applicable to children, and on the other hand, if a child is above the age of 14, the adult standard of care is applied, unless it be shown that the child is wanting in discretion or laboring under the handicap of some mental disability. In Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, the Court made the statement:

“* * * The age-of the child in this case lies within the classic common-law brackets of seven and fourteen. 14 Am.Jur. 811. * * * ”

In Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456 (1949), an eleven year old child was injured at an intersection. The court held that the child standard of care must be applied. In explaining why the case of Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939), did not control, the court said:

“ * * * The decision has no application to an eleven year old child, who in age and maturity is about midway between the two extremes represented by the very young child, as for example, one three years of age conclusively presumed to be incapable of contributory negligence, and the child in the later years of minority, for example sixteen years of age presumed prima facie to have the capacity and discretion of an adult. Under the authorities above discussed, which are in line with the weight of authority, the standard by which to measure the conduct of an eleven year old child, as regards negligence, is the degree of care ordinarily exercised by children of the- same age, intelligence, experience and capacity. 38 Am.Jur. pp. 884-892, Secs. 204, 205; * * *.”

The cases cited by appellant involve the operation of an automobile by one in excess of 14 years such as Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. Douglas v. Corder, Tex.Civ.App., 366 S.W.2d 615, er. ref., n. r. e.

In two other jurisdictions the adult standard of care for children under 14 years of age, “if they are driving automobiles, trucks, airplanes or power boats.”

Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859; Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342.

When a minor assumes to act as an adult as is recognized in all of the decisions, and in doing so may be judged by the adult standard of care. In such cases emphasis is placed upon the danger that the minor creates to other members of the general public.

Stanley Hoffman was 13 years and 3 months old, and was riding a small motor scooter, and such activity would not be dangerous to other members of the general public.

We do not believe that the Court’s action in sustaining the appellee’s motion in limine to suppress testimony showing that Stanley Hoffman had obtained a driver’s license before he became 14 years old was error.

The pretrial order instructed the counsel for the City not to mention in any manner or convey to the jury any of the facts set out in the motion without first obtaining permission of the Court.

At no time during the trial did the City offer evidence of Stanley Hoffman’s license to operate á scooter, and the granting of the motion in limine was not reversible error.

Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, Supreme Court.

The third point is directed to the Court’s action in refusing to permit appellant to plead that the father of the minor was negligent in permitting the minor to ride the motor scooter under the circumstances. Appellant cites Motsenbocker v. Wyatt, 369 S.W.2d 319, Supreme Court.

We do not believe that the negligence of the father could in anywise affect the minor’s recovery. Before the negligence of the father in entrusting the scooter to his son could have been a proximate cause of the accident, the son must have committed a separate act of negligence which was a separate cause of such accident. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1016.

Mr. Hoffman could not recover if the minor negligently caused the collision and the negligence of Mr. Hoffman could not become a material issue.

Luvual v. Henke & Pillot, Tex.Civ.App., 366 S.W.2d 831, er. ref., n. r. e.

Quintero, the driver of the pickup, admitted that when he first began his left turn, the scooter was so close that it could neither stop nor go around, and the jury found accordingly. The speed of the scooter could not be a proximate cause of the collision. Texas & Pacific Ry. Co. v. Floyd, Tex.Civ.App., 309 S.W.2d 525, er. ref., n. r. e.

The fourth and fifth points are directed to the action of the Court in permitting plaintiffs to file a trial amendment, reopen the case and to introduce evidence after the jury had already returned its verdict.

These assignments are in connection with the provision of Article XII, Section 7 of the Charter of the City of Austin, requiring notice in writing of claims.

It was stipulated that the City Manager actually received two notices in connection with the claim involved in this suit. The notices were not pleaded or proved before the jury, no exception to the pleading pointing out the defect, no motion for a directed verdict was made, and nothing was said about the notices in any manner until the City filed its motion for judgment non obstante veredicto. We believe that the City waived any right to make the complaint when it did.

Rule 9, Texas Rules of Civil Procedure.

At the hearing on the City’s motion for judgment, the plaintiffs with leave of the Court filed a trial amendment, pleading that notice was given, and offered both notices in evidence under the provisions of Rule 270, T.R.C.P.

The notices were admitted in evidence and found by the Trial Court not to constitute “evidence on a controversial matter,” but only to show, that as a matter of law, a compliance with the charter, and we believe properly so under Rule 270.

McAdams v. Dallas Railway & Terminal Co., 149 Tex. 217, 229 S.W.2d 1012.

Points Nos. six, seven and nine are concerned with the submission of Special Issues Nos. 42, 43 and 45, as to the damage issues on future medical up' to 21 years of age, future medical after 21 years of age, and special training up to 21 years of age, the City says that no recovery should be allowed for those items because Mr. Hoffman did not specifically state that he would spend the money for that purpose if it were available.

There was medical testimony as to what will be necessary for the minor’s proper treatment and care and as to the reasonable costs thereof which is not disputed by the City, but that the father did not testify that he would do what the medical experts said would be necessary.

The findings of the jury as to what medical services and special training will be rendered or received by the child in the future was a function of the jury, and such findings are supported by the record, and the appellees are entitled to the reasonable value thereof.

Renegar v. Cramer, supra.

Points Nos. 10 and 11 are directed to rulings of the Court as to the admission of the testimony of Officer Swanzy as to the speed Stanley Hoffman was traveling by the skidmarks and the damage to the pickup. Mr. Swanzy did not see the collision but made his observations and estimates, as an expert, who had investigated many accidents.

The rulings of the Court in refusing to permit the expert witness to testify were discretionary and it is the function of the Court to determine the qualifications of an expert witness to state an opinion.

Bell v. Bradshaw, Tex.Civ.App., 342 S.W.2d 185, no writ history.

Lone Star Gas Company v. Thomas, Tex.Civ.App., 345 S.W.2d 844, er. ref., n. r. e.

The opinion of Officer Swanzy was that the scooter was going at between 25 and 30 miles per hour when the brakes were applied, based on two factors: (1) the physical damage to the truck and scooter, and (2) the skidmarks left by the scooter.

The officer stated that he had never had any special training in school to determine how fast a vehicle must have been going to bend metal so many inches or make a dent of a certain size, and did not know how much force it takes to bend metal, and had made no such tests; that he made no skidmarks, and that such tests would have to be made to make an accurate estimate of speed. Swanzy’s opinion as to the speed of the scooter was inadmissible.

Flores v. Barlow, Tex.Civ.App., 354 S.W.2d 173, er. ref., n. r. e.

We believe that Dr. Zedler, holder of a Ph.D. Degree in Educational Psychology and Speech Pathology, and a college professor at Southwest Texas State College with much experience in her field, testified as to tests, the results and meaning of psychological tests given as a part of the testing program given by the teachers to Stanley Hoffman, and was well qualified to testify. It was admitted that the tests were given and that the dates and scores were correct.

Three tests were given Stanley Hoffman, two before he was injured and one after. On the first test November 16, 1955 at which time his IQ was 96 on the total mental factors, 94 on the language factor and 96 on the non-language factor, a second test was given in November 1960, and similar tests Stanley’s IQ was 106 on total mental factors, 96 on language and 115 on non-language factors.

On February 22, 1962 Stanley was given a test and his IQ at that time was 74.

Dr. Zedler, in her testimony, explained in detail the purpose and meaning of the tests given which were standard and used by all good school systems and are reliable and easily administered to groups. That the Stanford Binet Scale Test, given after the injury, was individually given when a child is not achieving at the level it should be and is in trouble.

In comparing the IQ tests on the California form with other tests Dr. Zedler testified that something had happened to the boy between tests, and that he had lost Yz of his intellect.

We believe the Court was within his discretion in permitting the witness to testify; the Court was justified in submitting Issue No. 48, inquiring as to the reasonable cash value of the damages based on such physical impairment if any, that Stanley Hoffman would suffer in the future after he becomes 21 years of age, resulting from injuries, if any, sustained by him—and such mental impairment if any—after he becomes 21 years, etc.—

The City’s chief complaint is that the Court did not define in the charge “physical impairment” and “mental impairment.”

No such definitions or explanatory instructions were requested in writing and tendered in compliance with Rule 279, T.R. C.P.

The 13th point is that the judgment for $25,000.00 for pain and suffering, allowed by the jury, is greatly excessive.

We do not believe that the jury awards, one for $4,000.00 for future medical services and another for $25,000.00 awarded for physical pain and mental anguish are either excessive.

At the time of the injury the minor was 13 years and 3 months of age and had a reasonable life expectancy of 56 years, and is aware that his intellect has been greatly damaged, and is self-conscious around other people. The medical expenses will have to be paid as they are incurred.

A jury is not required to accept the life expectancy shown in the tables but may determine within its discretion, from all the evidence how long a person will live in all probability, and may consider the rising costs of living.

Chemical Express v. Cole, Tex.Civ.App., 342 S.W.2d 773, er. ref., n. r. e.

Texas Consolidated Transportation Company v. Eubanks, Tex.Civ.App., 340 S.W.2d 830, er. ref., n. r. e.

Renegar v. Cramer, supra.

The judgment of the Trial Court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Danny Lynn IRVIN et al., Appellants, v. Ronald F. RALSTON, Appellee.
    No. 4230.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1964.
    Crenshaw, Dupree & Milam, Lubbock (Joe H. Nagy), Lubbock, for appellant.
    Evans, Pharr, Trout & Jones, Lubbock (John A. Flygare), Lubbock, for appellee.
   McDONALD, Chief Justice.

Plaintiff Ralston instituted this suit against defendants Irvin for damages to plaintiff’s automobile, resulting from an intersection collision between plaintiff’s and defendants’ automobiles. Trial was to a jury, which found defendants guilty of several acts of negligence proximately causing the collision, and further found that plaintiff did not fail to keep a proper lookout.

The Trial Court entered judgment for plaintiff on the verdict for $541.35.

Defendants appeal, contending the Trial Court erred in rendering judgment for plaintiff:

1) Because plaintiffs did not plead or prove that the costs of repairs to their car were reasonable and necessary in Lubbock County, Texas.
2) There is no evidence, or insufficient evidence to support the jury’s finding that plaintiff did not fail to keep a proper lookout.
3) Plaintiff’s testimony concerning an adjuster injected insurance into the case, depriving defendants of a fair trial.

Reverting to defendants’ 1st contention, a review of the record reflects that plaintiff plead that his vehicle was damaged as a result of defendants’ negligence; that it had a réasonable cash value in Lubbock County, Texas of $2300 immediately before the collision, and a reasonable cash market value in Lubbock County, Texas, immediately after the collision; and plaintiff further plead that the reasonable cost of repairs to his vehicle was $541.35. Defendants levelled no exceptions to plaintiff’s pleading. Plaintiff introduced without objection the bill for repairing the car at Lubbock Body Works, Lubbock, Texas, and the witness Hays, office manager of Lubbock Body Works, testified that such repairs were reasonable and necessary in Lubbock County, Texas. Plaintiff testified the repairs were made necessary by reason of the' accident with defendant.

We revert to defendants’ 2nd contention. The jury found that plaintiff did not fail to keep a proper lookout. Plaintiff testified that before he entered the intersection he looked to the right and to the left; but that he did not see defendant until he got into the intersection. Plaintiff used some care, and the question of whether he kept a proper lookout was for the jury. Blunt v. H. G. Berning, Inc., Tex.Civ.App., W/E Ref., 211 S.W.2d 773.

Defendants’ 3rd contention complains of the testimony of plaintiff concerning an adjuster. Plaintiff testified that “the adjuster had (the car) fixed”, and later mentioned “my adjuster”. From the context, it is obvious that plaintiff was referring to the adjuster for his own insurance. In any event the - mention was casual and inadvertent, and not elicited by plaintiff’s counsel, and certainly did not reveal whether the adjuster was plaintiff’s or defendants’. The error, if any, was harmless. Texas Rules Civil Procedure, 434; Walker v. Texas Emp. Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298, 301; Blankenship v. Sutherland, Tex.Civ.App., n. r. e., 324 S.W.2d 592.

All of defendants’ points and contentions are overruled, and the judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    A. G. ATTEBURY, Appellant, v. C. W. D. TANNER, Appellee.
    No. 4229.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1964.

      Kolander, Moser & Templeton, Amarillo, for appellant.
    Cleo G. Clayton, Jr., Amarillo, for ap-pellee.
   WILSON, Justice.

The sole question in this non-jury trespass to try title case, as presented by appellant, is whether appellee’s admitted adverse possession under Art. 5510, Vernon’s Ann.Tex.St., before issuance of a patent, is effective against the patentees and claimants under them.

The following facts are stipulated, or constitute unchallenged findings: The patent to the land in question was issued in 1958 to Mr. and Mrs. Koerner, assignees. It recited the land was bought and fully paid for on the application of W. T. Pottinger .filed in the General Land Office in 1897, under the laws regulating the sale of Public Free School land. Pottinger executed conveyances of the land in 1904 to grantees, Whitsett, who conveyed in 1907 to Nunn. Koerners acquired record title in 1907 by deed from Nunn. Appellant obtained judgment against Koerners for title to the tract in controversy in 1960. Appellant here appeals from judgment against him by plaintiff-appellee. It is undisputed that appellee’s adverse possession for more than 50 years before the patent was issued to Koerners in 1958 established his limitation title, unless, as appellant contends, limitation could not begin to run until the patent was issued. The effect of appellant’s position is that until the patent was issued there was no one against whom appellee’s possession could be adverse, because there is no showing the State parted with title prior to issuance of the patent.

A purchaser from the State, before the issuance of a patent, has such title as is subject to divestiture through adverse possession, notwithstanding the State cannot be thus barred. Dutton v. Thompson, 85 Tex. 115, 19 S.W. 1026, 1027; Whitaker v. McCarty, Tex.Com.App., 221 S.W. 945, 946.

The recitals in the patent that the land was bought and fully paid for on the application of Pottinger in 1897 under the laws regulating sale of public free school land are prima facie true as to the patentees and those claiming under them. Kimbro v. Hamilton, 28 Tex. 560, 568.

Acts 1895, ch. 47, p. 63, constituted the law regulating the sale of public free school land and the application to purchase when Pottinger’s application was filed in 1897. Since the patent recites purchase and full payment on that application, its issuance thereunder affords prima facie proof of performance of prerequisites to that issuance, including compliance with the statute in essential respects. Miller v. Moss, 65 Tex. 179; Shepard v. Avery, 89 Tex. 301, 34 S.W. 440, 441. The patent recites the Koerners are assignees. Art. 5329, V.A.T.S. provides for the filing of a complete and valid chain of title through recorded personal transfers to entitle one to become a substitute purchaser direct from the State. Where ownership is so evidenced, the patent may be issued to such owner and his assigns. As early as 1919 the statute (now Art. 5312, V.A.T.S.) provided that the sale under application should be effective from the date of receipt and filing of the application, together with the accompanying affidavit, the required obligation and one-fortieth of the purchase price.

The relation of the State and a purchaser whose purchase is in good standing upon his application, as Pottinger is prima facie shown to have been, is not essentially different from that of vendor and vendee. State v. Dayton Lumber Co., 106 Tex. 41, 155 S.W. 1178, 1180. Since it is established prima facie that Pottinger complied with the requirements of law, else a patent could not have properly issued upon his application, he and his assignees were shown to have an enforceable right that the land be awarded or granted to them when finally severed from the public domain. Marshall v. Robison, 109 Tex. 15, 191 S.W. 1136, 1137. (No such right was shown in the cases cited by appellant). The record thus shows that the State had sufficiently parted with title as that the rights of the purchaser, Pottinger, and his successors in interest were subject to divestiture by adverse possession... The patent and the rights granted therein inured to the benefit of the legal owner upon its issuance after the limitation title had ripened. Art. 5329, Sec. 4, V.A.T.S. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Farris GENTRY, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 14303.
    Court of Civil Appeals of Texas. Houston.
    March 19, 1964.
    Rehearing Denied April 23, 1964.
    Second Rehearing Denied May 28, 1964.

      Donald Lasof, Charles M. Coussons, Jr., Houston, for appellant.
    Joe Resweber, County Atty., Charles J. Wilson, Asst. County Atty., Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment granted in a driver’s license suspension case.

Farris Gentry, appellant, was adjudicated to be an habitual violator of the traffic laws in a hearing held in Corporation Court Number 3 of the City of Houston, Texas, under the authority of Article 6687b, Vernon’s Annotated Texas Statutes. Pursuant to said adjudication the Texas Department of Public Safety ordered appellant’s driver’s license suspended for a period of three months. Appellant appealed from the adjudication and suspension order to the County Civil Court at Law No. 1 of Harris County, Texas.

Appellee filed its motion for summary judgment and supported it by an affidavit of the Deputy Custodian of Driver Records, Texas Department of Public Safety, to the effect that the records of the Department reflect that appellant has been convicted of four specified moving violations in a consecutive period of three months, setting out the date of each violation.

Appellant filed a controverting affidavit reading as follows:

“I, Farris Gentry, plaintiff, swear to the following:
“I am not an ‘habitual violator’ as defined in Article 6687 b, Vernon’s Annotated Texas Civil Statutes. I do not have four or more convictions arising out of different transactions in a consecutive period of twelve months, under the terms of Article 6687 b, Vernon’s Annotated Texas Civil Statutes. I do not have seven or more convictions arising out of different transactions within a period of twenty-four months, under the terms of Article 6687 b, Vernon’s Annotated Texas Civil Statutes.
“I, Farris Gentry, have never been convicted for any offense arising out of a moving violation which occurred on or about April 4, 1961, as the term ‘conviction’ is defined in Article 6687 b, Section 25, Paragraph (c). I never appeared in open court in connection with said offense and conviction, either in person or by attorney. There has been no forfeiture of bail or collateral deposited to secure my appearance in court in connection with said alleged offense and conviction.
“I, Farris Gentry, have read the foregoing Affidavit, and each and every statement made therein is true and correct.”

Based on the pleadings and affidavits, the trial court granted the motion for summary judgment. It is appellant’s contention that his affidavit raised questions of fact which could be determined only at a trial on the merits.

Article 6687b, Section 25, Paragraph (c) reads as follows:

“For the purpose of this Act, the term ‘conviction’ shall mean a final conviction. Also, for the purpose of this Act, a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.”

Appellee contends that the first paragraph of appellant’s affidavit states a conclusion of law and is insufficient for that reason. Appellant has not denied specifically that judgments, finding him guilty of the offenses charged, were rendered. He has not specifically raised a question of mistaken identity. In the absence of such an allegation it would appear that the judgment entered would be the best evidence of the fact of conviction vel non. In order to raise an issue of fact in a summary judgment proceeding the affidavit relied upon must contain statements of fact shown to be within the knowledge of affiant and which would be admissible in evidence at a trial on the merits.

In the second paragraph of his affidavit appellant alleges facts which, if true, would demonstrate that the judgments of conviction entered against him were void. The affidavit of appellee states that appellant was “finally convicted” of the offenses set out and, in each case, paid a fine. The question is whether a judgment in a criminal case is valid where the defendant did not .appear in court either in person or by at-iorney.

The Court of Civil Appeals at Dallas in the case of Miller v. Texas Department of Public Safety, 375 S.W.2d 468, where similar affidavits were under consideration, stated:

“If it is the contention of appellee that appellant entered a plea of guilty the provisions of Art. 518, Vernon’s Ann.C.C.P. are not satisfied. There it is provided that a plea of guilty in a misdemeanor case may be made either by the defendant or his counsel in open court. Art. 580 of Vernon’s Ann. C.C.P. provides that in all prosecutions for misdemeanors when the punishment is imprisonment in jail the defendant must be personally present, but Art. 581, Vernon’s Ann.C.C.P. provides that in ‘other misdemeanor cases’ the defendant may, by consent of the state’s attorney, appear by counsel and the trial may proceed without his personal presence. While Art. 11 of Vernon’s Ann.C.C.P. permits the defendant in a criminal prosecution to waive any rights secured him by law except the right of trial by jury in a felony case, we find no evidence or contention of waiver in this case, and the affidavit of appellant would negative the idea of waiver of appearance either in person or by attorney. See also Texas Department of Public Safety v. Williams, Tex.Civ.App., 356 S.W.2d 848.
“This is an appeal from a summary judgment and in reviewing the judgment we cannot indulge any presumption in favor of the trial court’s action. We must view the evidence in the light most favorable to the appellant and resolve all conflicts in his favor. Torres v. Ohio Casualty Ins. Co., Tex.Civ.App., 296 S.W.2d 561; Schepps v. American District Telegraph Co. of Texas, Tex.Civ.App., 286 S.W.2d 684; Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.”

Here we have the additional fact that appellant paid fines in each case. Neither fines nor costs could be paid until appellant had been found guilty of an offense and the punishment determined by the court’s judgment. Payment of a fine under such circumstances would not constitute a waiver of appellant’s statutory or constitutional rights. The record does not reflect that the fine was paid voluntarily. It would hardly comport with our ideals of justice to hold, that one paying a fine as an alternative to arrest thereby waived all of the rights guaranteed a defendant in a criminal prosecution by the Constitution of Texas and of the United States. Palmer v. Texas Department of Public Safety, Tex.Civ.App., 374 S.W.2d 347.

Article I, § 10, of the Constitution of Texas, Vernon’s Ann.St., guarantees one accused of crime a speedy public trial by an impartial jury, and that he be confronted by the witnesses against him. Sec. 19 of Article I of the Constitution guarantees him against deprivation of life, liberty and property except by due course of the law of the land.

It can hardly be argued that in the absence of appellant and his attorney appellant could have been afforded his constitutional rights. There is nothing to show that appellant was advised of the conviction within such time as to permit him to seek a new trial or an appeal. There is no allegation that appellant expressly waived any rights afforded by our laws to one accused of crime.

It is the burden of one seeking a summary judgment to negative the presence in the case of all issues of fact. Appellee has not met this burden. Texas Department of Public Safety v. Williams, Tex. Civ.App., 356 S.W.2d 848.

The judgment oí the trial court is reversed and remanded for a new trial.

On Motion for Rehearing

In our original opinion we held that a summary judgment was improperly granted in this case because appellant’s affidavit stated that he had not been finally convicted of the moving violation of April 4, 1961, in that he had not posted bond, which had been forfeited, nor had he either in person or by attorney appeared in open court in connection with such offense and conviction.

The rules of procedure with reference to summary judgments must be complied with closely by the movant, but are somewhat relaxed when applied to the respondent. “The summary judgment is to be applied with caution and will not be granted where there is doubt as to the facts.” In re Estate of Price, Deceased (Stone, Petitioner v. State National Bank of El Paso, etc.), Tex.Sup., 375 S.W.2d 900.

From the facts alleged in appellant’s affidavit, we are in doubt as to whether appellant was afforded a trial prior to the entry of the judgment of conviction. It is appellee’s contention that his affidavit establishes that a judgment has been entered for the particular offense alleged and that a judgment of conviction cannot be collaterally attacked in a civil court. We do not agree. Frequently void judgments are attacked collaterally by writ of habeas corpus in the Court of Criminal Appeals. Ex parte George Washington, 168 Tex.Cr. R. 366, 328 S.W.2d 188; Ex parte James R. Kelley, 161 Tex.Cr.R. 330, 277 S.W.2d 111; Ex parte Williams, 146 Tex.Cr.R. 378, 175 S.W.2d 420; Ex parte Boggs, 146 Tex.Cr. R. 86, 171 S.W.2d 879.

In 27 Tex.Jur.2d, Habeas Corpus, § 10, it is stated: “Where a person is restrained under color of legal process, he is entitled to be released on habeas corpus if the process is void for want of compliance with the fundamental requirements of law." (Emphasis added.)

The cases cited above demonstrate that a judgment of conviction for crime is void unless such conviction was obtained “by, the due course of the law of the land.” In Bumguardner v. State, 149 Tex.Cr.R. 188, 179 S.W.2d 768, the Court said:

“Article I, Section 19 of the Constitution of Texas, Vernon’s Ann.St., says: ‘No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land/ Our courts have frequently quoted with approval from Mr. Cooley the following: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his liberty, life, property and immunities under the protection of the general rules which govern society.’ ” (Emphasis added.)

In Ross v. State, 156 Tex.Cr.R. 164, 233 S.W.2d 126, reversed 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352, the Court said: “Due process of law means only ‘a fair and impartial trial’ upon the facts. Lisenba v. People of State of California, 314 U.S. 219-243, 62 S.Ct. 280, 86 L.Ed. 166, 167.”

The Supreme Court of Texas has held that due process of law requires notice and an opportunity to be heard, together with evidence heard by the court, to sustain its-judgment of contempt. Ex parte White, 149 Tex. 155, 229 S.W.2d 1002; Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152.

As the Court of Civil Appeals at Dallas pointed out, in Miller v. Texas Department of Public Safety, 375 S.W.2d 468, Article 518, Vernon’s Ann.C.C.P. requires-that a plea of guilty in a misdemeanor case be made either by the defendant or his counsel in open court. Article 581, Vernon’s Ann.C.C.P. provides that where, with the consent of the State’s attorney, the defendant appears by counsel, the trial may proceed without his personal presence. While we have found no cases on the question, we would doubt the soundness of a rule of law permitting a defendant not in open court, to waive his right to be present at his trial in person or by attorney. In any event such a waiver should not be presumed from the fact of a judgment, since waiver ordinarily is a voluntary or intentional action, although it may be implied from the actions or conduct of the party against whom it operates. Coleman Production Credit Ass’n v. Mahan, Tex.Civ.App., 168 S.W.2d 903.

Appellant’s affidavit negatives the idea of express waiver.

A void judgment has been defined as “one which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.” Black’s Law Dictionary, citing Reynolds v. Volunteer State Life Insurance Co., Tex.Civ.App., 80 S.W.2d 1087, writ ref.

This rule applies to judgments rendered in prosecutions for criminal offenses as well as civil wrongs. The statute authorizing forfeiture of the privilege of operating motor vehicles on the public streets by an habitual violator of the traffic laws defines “habitual violator” as one with a certain number of “convictions”. Article' 6687b, Sec. 22(b), par. 4. It is assumed that the legislature intended that the convictions be valid convictions. Public policy does not require that the courts of limited jurisdiction recognize as valid a judgment of conviction which the evidence shows to be void.

It has been called to our attention that in metropolitan areas it is frequently the custom for one charged with moving violations to ascertain the customary fine for such violations and pay to the municipality that amount by mail or at a clerk’s window. The affidavits filed by appellant and appellee suggests that some such procedure was followed in this case. In such a case the judgment is void because in the absence of a plea and evidence in open court, no trial has been held. Here the facts in this respect are, at least, in doubt.

On reconsideration we are also of the opinion that appellant’s affidavit is sufficient to raise a question of fact as to whether or not appellant is the person adjudged guilty of the violation of April 4, 1961. In a case involving the revocation of a license to practice dentistry upon proof of conviction of a felony, the Court of Civil Appeals at Austin held that it was necessary to prove the identity of the licensee with the defendant in the judgment of conviction. Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619, writ ref. While the affidavit filed in connection with appellee’s motion for summary judgment states that the operating record of Farris Gentry shows a final conviction of the particular offense in question, there is nothing in the record by way of affidavit, admissions or otherwise proving that the Farris Gentry against whom the judgment of conviction was rendered, was the same person as appellant.

Appellee contends that this Court is bound to assume that the reports of conviction of offenses made to the Department of Public Safety by the respective courts are proper and complete, and since certain information is required to be included in the report by Article 6701d, Sec. 152, V.A.C.S., including the plea entered by the defendant in the case, we must assume that a plea was entered. We cannot agree with this contention. Even if we assume that all information required by law was included in the report, it is not in evidence in this case. The affidavit does not state that a plea was entered. Neither the judgment nor the report is attached to the motion for summary judgment. Even if appellant has waived his right to complain on appeal of the failure to attach to the motion for summary-judgment certified copies of the various judgments, it cannot be said that he is bound by recitations in the judgment of which there is no evidence. The report might show that no plea was entered.

We have found it unnecessary to consider whether parol testimony might be admitted, under a plea of lack of due process of law, to contradict recitations contained in the judgments convicting appellant since the judgments were not attached to the motion for summary judgment.

The motion for rehearing is overruled.