author: CALVERT, Chief Justice.

text:
    Julia Shay JECKER, Petitioner, v. WESTERN ALLIANCE INSURANCE COMPANY, Respondent.
    No. A-9359.
    Supreme Court of Texas.
    July 10, 1963.
    Rehearing Denied July 31, 1963.

      Huson & Bissett, Refugio, Keys, Russell, Keys & Watson, Corpus Christi, Ben A. Donnell, Corpus Christi, for petitioner.
    Guittard & Henderson, Victoria, Harry F. Maddin, Victoria, for respondent.
   CALVERT, Chief Justice.

Lawrence Jecker was killed in an automobile accident. Based on jury findings that at the time of the accident Jecker was in the course of his employment with Bay Chevrolet, Inc., and was not intoxicated, and a further finding that Mrs. Julia Shay Jecker, his widow, would suffer manifest hardship if compensation was not paid in a lump sum, the trial court rendered judgment against Western Alliance Insurance Company, Bay Chevrolet’s insurer, for Workmen’s Compensation benefits to be paid in a lump sum. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment that the plaintiff take nothing. 362 S.W.2d 137.

We reverse the judgment of the Court of Civil Appeals and remand the case to that court for further consideration.

The Court of Civil Appeals expressly sustained points of error presented by Western Alliance asserting that there is no evidence to support the jury’s finding that Jecker was in the course of his employment at the time of his fatal accident, and that the finding is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust. These are the principal holdings which we have for review.

Inasmuch as Jecker suffered his fatal injuries while traveling on a public highway, whether he was in the course of his employment at the time is measured and limited by Secs. 1 and lb of Art. 8309, Vernon’s Ann. Civ.St. Sec. 1, after eliminating injuries caused under certain circumstances, provides that the term “injury sustained in the course of employment” shall “include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Sec. lb, added in 1957, reads:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

Special Issue No. 1 inquired whether Jecker was in the course of his employment at the time of his fatal accident. In connection with the special issue, the court gave an instruction defining “in the course of his employment” in the language of Secs. 1 and lb of Art. 8309 as that language relates to the facts in the case. The jury was instructed that “in the course of his employment” meant “originating in -the work, business, trade or profession of Bay Chevrolet, Incorporated, and in the furtherance of its affairs or business.” The instruction then continued as follows:

“However, an employee, while trav-elling on the highway in an automobile, is not considered as being in the course of his employment unless the transportation is paid for by the employer or unless the employee is directed in his employment to proceed from one place to another place.”

Finally, the instruction advised the jury that travel in furtherance of the business of the employer could not be the basis of a claim that the death occurred in the course of employment if the travel was also in furtherance of personal or private affairs, unless the trip would have been made had there been no personal or private affairs to be furthered and unless the trip would not have been made had there been no business of the employer to be furthered.

The holdings of the Court of Civil Appeals that there is no evidence to support the jury’s finding and that such finding is contrary to the weight and preponderance of the evidence, appears to be based upon an erroneous concept of applicable law and an erroneous construction of the trial court’s instruction. The court, citing American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374, rested its conclusion on the general rule that an injury incurred in the use of public streets and highways in going to and returning from the place of employment is not a compensable injury because not incurred in the course of the employment as required by Sec. 1 of Art. 8309. There are exceptions to that general rule, also set out in Coleman, but the Court of Civil Appeals was of the opinion that the facts of this case did not bring it within any of the exceptions. It construed the exceptions as being limited to instances in which the employer furnishes transportation to the employee, or pays another to transport him, or directs him to perform a “special mission” requiring travel on the streets or highways.

The rule and the exceptions mentioned in Coleman should be interpreted in the factual context with which the Court was dealing. In that case the question to be decided was whether a workman whose employment had terminated and who was injured while traveling on a public highway in returning to the city in which he resided was injured in the course of his employment. In deciding the question, we applied the rule or test, and the exceptions, used to determine whether a workman who has completed his work for the day at his place of employment and is injured while traveling on the streets or highways in returning to his place of residence is injured in the course of his employment. The general rule is that he is not. The rationale of the rule is that injury incurred in such travel does not arise out of the employment. Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350.

The general rule is, in reality, even broader than we had occasion to state it in Coleman. It is that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract. Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238; Jones v. Texas Indemnity Co., Tex.Civ.App., 223 S.W.2d 286, writ refused; Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791. As a matter of fact, we recognized this exception in Coleman by our quotation from Associated Indemnity Co. v. Bush, 5th Cir., 201 F.2d 843. The rationale of it is that since the workman’s employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Smith v. Texas Employers’ Ins. Ass’n, supra. The exception was well established before the adoption of Sec. lb of Art. 8309 by the Legislature, and it must be assumed that the section was enacted with full knowledge of it.

Was the exception abolished by Sec. lb of Art. 8309? We think not. We have recently recognized in Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, 353, that the Legislature intended by the enactment of Sec. lb “to circumscribe-the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition [of “injury sustained in the course of employment”] found in Section 1.” But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidently injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen’s Compensation Act.

It is to be noted that one of the exceptions to the provision in Sec. lb that “transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment” is when “the employee is directed in his employment to proceed from one place to another.” We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment. Having thus construed the statute, we give the same meaning to that part of the trial court’s instruction which advised the jury that “an employee, while travelling on the highway in an automobile, is not considered as being in the course of his employment * * * unless the employee is directed in his employment to proceed from one place to another place.”

Our determination of whether there is in the record evidence of probative force that Jecker was in the course of his employment at the time of his fatal accident is made under governing law as announced above. There is evidence that he was in the course of his employment if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in performance of his duties, and (2) that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered.

Bay Chevrolet, Inc., is a family-owned corporation with Charles Luther, owner of ninety per cent of its stock, as president and manager. It operates an automobile business and an electrical appliance business, about four blocks apart, in Palacios. It has a General Motors’ franchise for electrical appliances, including Frigidaire ranges.

Jecker had been in the employ of Bay Chevrolet Inc. for about eleven months at the time of his death. He was in charge of sales, delivery and servicing of appliances, was paid a salary of $200.00 per month, plus a commission or bonus, and, with the aid of Luther’s sister who per^ formed office duties, operated the appliance business under loose supervision of Luther: He worked six days a week. His regular hours were from eight to five, but the arrangement of his work schedule was left largely to him. No mileage limitation was put on the area in which he could sell appliances by either general instructions or the franchise, but his normal trade area was within a radius of twenty miles of Palacios, and he understood that. He once delivered and installed a washing machine, at Luther’s request, in the apartment of Luther’s son in Austin, a distance of approximately one hundred and sixty miles.

In March of 1958, Jecker, with Luther’s permission and approval, sold a Frigidaire range to Wallace Shay, Mrs. Jecker’s nephew. Shay lived in Refugio, some eighty miles distant from Palacios. Jecker delivered and installed the range, making the trip in a company truck. The range was new. Under Frigidaire’s written warranty, the manufacturer agrees that for one year it “will, at its election, repair or replace without cost to the owner or user, through an authorized servicing dealer or f. o. b. the factory, any part found by the Manufacturer to be defective * *

On Tuesday, September 16, 1958, Jecker went to Refugio to the home of Wallace Shay where he, with the aid of Shay, replaced a broken glass control panel and a surface burner of Shay’s range with new parts purchased and furnished by Bay Chev-. rolet, Inc. While traveling on a public highway on his return trip to Palacios, his automobile collided with another automobile at about 7:30 p. m. and he suffered injuries from which he died.

The facts detailed to this point may be accepted as undisputed. Western Alliance’s assertion that Jecker'was not injured in the course of his employment rests on testimony of Charles Luther. Luther testified that while the range was sold by Jecker to Shay with his knowledge and consent, it was sold at a reduced price and with the understanding between him and Jecker that Bay Chevrolet would replace any defective parts but would not pay installation or servicing charges; that Bay Chevrolet had replaced a broken glass panel on the range in June but had done so as a matter of company policy and not under or by virtue of a warranty; that he was aware that Shay had communicated with Jecker at a later date with respect to replacing a broken glass control panel and a surface unit switch, and the company ordered replacement parts; that the parts were received on Tuesday, September 9, and Jecker told him that he would be happy to go to Refugio and install the parts on his own time; that Jecker had planned to go on Sunday, September 14th, but told him later (probably on Monday, 15th,) that he did not go on Sunday, but wanted to go to attend to some personal business and would take the new parts for the range with him and replace the broken or defective parts on a day off; that he said, “Okay, go ahead”; that he knew Jecker was going to make the trip to Refugio, but he did not know on what day he was going and did not authorize him to go on company time to replace the broken or defective parts of the range.

Luther’s testimony thus far detailed indicates that Jecker’s trip to Refugio was not made for the purpose of performing duties imposed on him by express or implied terms of his employment. But there is other evidence in the record tending to prove that it was.

Luther testified that “it was Mr. Jecker’s job to service any appliances that was [sic] sold through Bay Chevrolet Co.,” and further as follows:

“Any new merchandise you sell you have to service it for one year or you have to pay into Frigidaire Division an amount agreed upon and selected by Frigidaire Division in order to cover normal service within warranty. If you sold an item at retail that was considered to be covered by service, then you would naturally have to service it even if you sold it in Alaska or you would have to make arrangements with Frigidaire Division to have it serviced by a dealer closer to the place of the user.”

He testified positively that the range sold to Shay was new and carried a one-year warranty.

There is other evidence that the range was sold, with full warranty and that Luther recognized that Bay Chevrolet was obligated to replace defective parts and to furnish necessary labor or service. Shay testified that when the range was delivered, he was given a booklet containing the written warranty. The glass panel was broken when the stove was first installed or shortly thereafter, and Jecker, with knowledge and approval of Luther, made a trip to Refugio in June to install a new one furnished without charge by Bay Chevrolet. Bay Chevrolet paid the gasoline expense of the trip. Work orders were prepared by Bay Chevrolet for replacement of the glass panel in June and for the work done on September 16th. On the back of the work order for September 16th is a notation of items charged out to the particular job as white lacquer, switch, surface unit, and glass control panel, and their cost to Bay Chevrolet; no charge is shown for labor. In the space for billing in the work orders for both the June and September work appears the word “warranty”.

It is our duty, as it was the duty of the Court of Civil Appeals, to view the evidence and the reasonable inferences therefrom most favorably in support of the jury’s finding. Under that rule, we are satisfied that there is in the record evidence of probative force that Jecker’s trip to Refugio on the date of his fatal accident was in the furtherance of his employer’s business and in the performance of duties imposed by his contract of employment. We are further satisfied that there is evidence of probative force that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered.

The jury was not required to believe Luther’s testimony that Jecker had agreed that the manufacturer’s warranty would not apply to the range sold to Shay; there is strong evidence, including Luther’s own testimony, that it did. Neither was the jury required to believe that Jecker told Luther that he had some personal business in Refugio and would make the trip and replace the defective or broken parts of the range on his own time. He did, of course, visit with his wife’s relatives while in their home. The evidence also reflects that after leaving the Shay home he visited a recreation club in Refugio and loitered there for some time, drinking beer and playing pool, before beginning the return trip to Palacios. But the evidence is far from conclusive that visiting his wife’s relatives and visiting the recreation club were the main or even motivating factors in the making of the trip. There is no evidence that Jecker attended to any personal business on the trip.

Under governing law as announced herein, we hold that there is in the record evidence of probative force supporting the jury’s finding that Jecker was in the course of his employment when he was injured. There is no claim that he turned aside from the shortest route on the return trip to Palacios to serve some purpose of his own.

It becomes unnecessary for us to decide whether payment by an employer for gasoline used by a workman in going from his place of residence to his place of work to begin his work day and in returning to his residence at the end of the working day is transportation “paid for by the employer” within the meaning of Sec. lb, Art. 8309 and the Court’s instruction in this case.

Respondent had before the Court of Civil Appeals seven points of error. The two points sustained by that Court were points two and three. In virtue of sustaining point two, the Court reversed the judgment of the trial court and rendered a take-nothing judgment. It becomes our duty to consider the other points of error which, if sustained, would result in an affirmance of the judgment of the Court of Civil Appeals.

Under the provisions of Sec. 1, Art. 8309, injuries received while in a state of intoxication are not sustained in the course of employment. A defense urged to this suit was that Jecker was in a state of intoxication- at the time of his injury. A special issue was submitted on that defense and the jury answered- that Jecker was not in a state of intoxication.

Respondent’s point six asserts there is no evidence to support the finding, meaning, we assume, that the evidence shows conclusively that Jecker was in a state of intoxication. From a review of the evidence, we conclude that the Court of Civil Appeals correctly overruled this point.

Respondent’s points one and four would, if sustained, result in an alteration of the judgment of the Court of Civil Appeals. Point one asserts error in. the refusal of the trial court to define “state of intoxi-. cation” in its charge. The Court of Civil Appeals overruled the point. If this point were sustained, the judgment of the Court of Civil Appeals would be.reversed and the cause remanded to the trial court for retrial. Point four asserts there is no evidence to support the jury’s finding that Mrs. Jecker will suffer manifest hardship if the compensation is not'paid in a lump sum. The Court of Civil Appeals found it unnecessary to pass on the point. If this point were sustained, the judgment of the Court of Civil Appeals would be reversed and the judgment of the trial court modified. Since neither of these complaints were brought to this Court by cross-point, they cannot be considered. 21 Texas Bar Journal 113.

Since the Court of Civil Appeals sustained the point of error asserting that the jury’s finding that Jecker was injured in the course of his employment is contrary to the overwhelming preponderance of the evidence under an erroneous concept of the law, the cause will be remanded to that Court for further consideration of the question rather than to the trial court for retrial. Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632, 635; Puryear v. Porter, 153 Tex. 82, 262 S.W.2d 933, 264 S.W.2d 689. If the Court should overrule that point, it will then consider and determine respondent’s point five asserting that the finding that Mrs. Jecker will suffer manifest hardship if compensation is not paid m a lump sum is contrary to the weight and preponderance of the evidence.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that Court for further consideration as herein indicated.

      . AH Article references are to Vernon’s Annotated Texas Civil Statutes.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    UNITED FINANCE & THRIFT CORPORATION OF DALLAS, Appellant, v. Paul F. CHAPMAN, Sr., et ux., Appellees.
    No. 3807.
    Court of Civil Appeals of Texas. Eastland.
    June 21, 1963.
    Rehearing Denied July 19, 1963.

      Irion, Cain, Cocke & Magee, Burt Berry, Dallas, for appellant.
    Fritz & Vinson, Edward C. Fritz, Dallas, for appellees.
   GRISSOM, Chief Justice.

Paul F. Chapman, Sr., and wife sued United Finance & Thrift Corporation of Dallas and others to recover unpaid overtime compensation in the amount of $1,202.-28, being $601.14 single damages and an equal amount of liquidated damages, plus attorney’s fees, pursuant to Section 216(b) of the Fair Labor Standards Act. A jury found for the plaintiffs on the questions of unpaid overtime compensation and whether Mrs. Chapman was engaged in Interstate Commerce.

Plaintiffs alleged they had employed an attorney to prosecute the case and that they were entitled to a reasonable attorney’s fee, according to said act, “which is $25.00 per hour”; that the total attorney’s fee would in all probability amount to, at least, $1,000.-00 in the trial court and, in the event of an appeal, an additional $500.00 in the appellate court. The jury found that $1,500.00 was a “reasonable attorney’s fee for the services of plaintiffs’ attorney in this case.” Judgment was rendered against United Finance & Thrift Corporation of Dallas and others, jointly and severally, for $201.96 and an additional amount of $423.94 damages, totaling $625.90, and for $1,500.00 attorney’s fees. United Finance & Thrift Corporation of Dallas, alone, has appealed.

Appellant presents only one point. It is that the “court erred in allowing an attorney’s fee so excessive as to be manifestly unjust.” As shown, the judgment was for the principal sum of $625.90. As we understand it, appellees’ claim was reduced upon the trial because it appeared that a portion of appellees’ claim was barred by limitation. Appellant contends the $1,500.-00 attorney’s fee is unreasonable and that, therefore, the judgment should be reversed. It specifically contends that on the face of the judgment there is an unreasonable relationship between the amount of recovery and the attorney’s fees. Ordinarily, a recovery of $1,500.00 attorney’s fees in a suit where the judgment is for only $625.90 is out of proportion. A determination of the amount of attorney’s fees is within the sound discretion of the trial court. Appel-lees set out in their brief a state of facts which, if shown by the record, would justify the attorney’s fee awarded. We do not know whether preparation and trial of this case required much greater skill, time and expense than usual. After hearing all the evidence and observing the conduct of counsel the jury found that $1,500.00 was a reasonable attorney’s fee. The court rendered judgment therefor. It has often been held that allowance of attorney’s fees rests in the sound discretion of the trial court and that a judgment will not be reversed unless it is shown that the trial court abused its discretion. 7 Tex.Jur.2d 193. The jury and the court had the right to consider many things other than the amount of recovery in fixing the attorney’s fee. It has been held that recovery of a large attorney’s fee is authorized when claimant’s lawyers diligently represented their clients in repeated hearings and pressed their cause through the reviewing courts while being constantly harassed by dilatory tactics and that the court and jury had a right to consider the time necessarily spent by counsel, counsel’s ability, the nature of the case, the expenses necessarily incurred and the character of efforts required. Weatherly v. Longoria, Tex.Civ.App., 292 S.W.2d 139, 141, (Ref.N.R.E.); Michigan Window Cleaning Co. v. Martino, 6 Cir., 173 F.2d 466; Stilwell v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714; Clarke Lumber Co. v. Kurth, 9 Cir., 152 F.2d 914; Waialua Agr. Co. v. Maneja, D.C., 97 F.Supp. 198; Conwell v. Central Mo. Tel. Co., D.C., 76 F. Supp. 398, affirmed 8 Cir., 170 F.2d 641.

A fact situation could have existed which would have authorized the verdict and judgment for attorney’s fees. The burden is upon appellant to show that no such situation existed. Appellant has not presented a Statement of Facts. There being no Statement of Facts, we must presume there was evidence to support the finding of the jury and the judgment of the court. Ex Parte Wagner, Tex., 368 S.W.2d 185; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863.

Appellees ask that we award them an additional attorney’s fees for the services of their attorney on appeal. As heretofore shown, appellees alleged that a reasonable attorney’s fee was $25.00 per hour; that the attorney’s fees in the trial court would probably amount to $1,000.00 and, in the event of an appeal, an additional $500.00 in the appellate court. We cannot know from the record that the jury and the trial court did not consider the attorney’s services on appeal and include compensation therefor in finding that $1,500.00 was a reasonable attorney’s fee. In any event, we overrule appellees’ request for an award of an additional attorney’s fee in this court.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    B. M. JINKS and R. N. Nabors d/b/a J. & N. Construction Company, Appellants, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellee.
    No. 16226.
    Court of Civil Appeals of Texas. Dallas.
    July 19, 1963.

      Wilbur T. Knape, Dallas, for appellants.
    Scurry, Scurry & Hodges, Dallas, and Thompson, Walker, Smith & Shannon and Joe E. Gracey, Fort Worth, for appellee.
   DIXON, Chief Justice.

Suit for damages arising out of a truck-train collision was instituted by William H. Dedmon, the truck driver, and R. N. Na-bors, alleged to be the owner of the truck, against Chicago, Rock Island and Pacific Railroad Company, hereinafter called Railroad.

In addition to its answer Railroad filed a counterclaim and cross-action against Na-bors and B. M. Jinks, impleading the last named party as a joint owner of the truck along with Nabors, the two doing business under the name of J. & N. Construction Company.

A Jury returned a verdict favorable to Railroad in the main suit and also on the counterclaim and cross-action. A judgment for $8,464.56 was rendered in favor of Railroad against Jinks and Nabors, the judgment also providing that Dedmon and Nabors take nothing in their suit against Railroad. Only Jinks and Nabors have appealed.

In their first point on appeal appellants charge that there was no evidence to support the jury’s answer to Special Issue No. 3 to the effect that the engineer on the train did not fail to keep a proper lookout.

The collision occurred about half way between the cities of Dallas and Fort Worth. The train was traveling east towards Dallas. The truck was traveling south along a dirt road towards a gravel pit leased by appellants.

About 100 feet north of the track was an east-west line of trees paralleling the track. There is testimony that at a point about 125 feet north of the tracks the visibility to the west (from which direction the train was coming) for the truck driver was between 700 and 800 feet. There is testimony that the truck could first be seen from the train when the truck emerged from behind the line of trees about 100 feet north of the tracks.

The train was traveling about 70 miles per hour, which was within the speed limit at that point. The truck according to Ded-mon himself, the driver, was traveling about 8 or 10 miles per hour, and could have been stopped within 2 or 3 feet. He did not stop.

Clymer, the fireman on the train, estimated that the train was about 650 feet from the crossing when he and the engineer first saw the truck as it came from behind the trees. We quote part of Clymer’s testimony :

“A Well, he came out from behind the trees and, oh, I would say about 25 feet from the crossing. It looked like he slowed just a little, and I thought he was going to- stop, but he didn’t, he pulled up on the crossing.
“A When he came out from behind the trees I started to call the attention of the engineer to the fact that there was a truck coming and he was looking at it, at the truck, and when he slowed, and then after, when he was about, oh, I guess he was about, oh,. I don’t know, some six, eight, maybe ten feet off the crossing I saw that, it finally registered on me that he wasn’t going to stop so I hollered at the engineer that he was going to try to make it and the engineer already had his hand on the brake, at the same time that I hollered, well, he was watching him too, and we both decided about the same time that he was going to try to make it and he pulled the brake around and made a brake application on the train.
“Q (By Mr. Gracey) Mr. Clymer, will you tell the jury whether or not that truck ever stopped as it approached this crossing?
“A No, it never stopped.
“Q Did it slow down some after you first saw him?
“A Yes, it slowed down just a little bit.
“Q Was he going at a speed where he could have stopped if he had ever tried?
“A I thought so.
“Q Will you tell the jury what you were doing about the time just prior to the impact occurring?
“A I was trying to figure some way out.
“Q Can you tell the jury whether at the time you approached this crossing, when you first realized that there was a possibility that the man might not stop, tell the jury what that engineer was doing from there on in?
“A At the time that it was apparent that, he was not going to stop ?
“Q Yes, sir.
“A He was blowing the whistle and making brake application.
“Q Was the headlight going?
“A Yes, sir.
“Q Was the engineer watching the truck driver?
“A Yes, sir.”

There is also evidence in the record that the train could not have been stopped or even appreciably slowed down within the distance separating the train and the crossing at the time the truck first became visible from the train.

The burden of proof, or rather the “burden of persuasion”, to use Professor Hodges’ phrase, (footnote) was on appellants. There was ample evidence to support the jury’s answer to Special Issue No. 3. Certainly we cannot say that there was no evidence to support the answer. Appellants’ first point is overruled.

In their second point on appeal appellants complain of the court’s refusal to submit Special Issues Nos. 10, 10-A and 10-B which inquired (10) whether Railroad failed to have a signal light burning at the intersection; (10-A) if so, whether such failure was negligence, and (10-B) a proximate cause of the collision.

We see no error in the court’s refusal- to submit the issues. The road along which appellants’ truck was traveling extended south of the railroad tracks about 600 yards to appellants’ gravel pit, where it came to a dead end. It extended north from the tracks about a half mile to Pipe Line Road. It was a dirt road with a little gravel on it here and there, a one lane road providing for the passage of only one vehicle at a time. Apparently the road did not even have a name. About 100 feet south of the tracks the road was barred by a gate with a chain and four locks. Across the gate was a sign: “No Trespassing.” The gate was locked all night and during the day when appellants were not working the pit. Appellants’ witness Robert West, County Surveyor of Dallas County, testified that the road had not been dedicated. There is testimony that the road had been provided for the convenience of tire Davis Estate which lay a short distance to the south of the tracks.

No issue was requested and none was submitted inquiring whether the crossing was extra-hazardous, that is, whether it was by its nature one that could not be used with safety unless extraordinary means were used, such as mechanical devices or the presence of a flagman, to protect travelers passing the intersection. We need not pass on the question whether it would have been the duty of the court to submit such an issue if it had been requested. In the light of the evidence we cannot say as a matter of law that it was an extra-hazardous crossing. In the absence of such finding there is missing the basic fact upon which the duty to furnish a mechanical warning or a flagman must be conditioned. Attebery v. Henwood, Tex.Civ.App., 177 S.W.2d 95 and authorities there cited. Appellants’ second point is overruled.

In their third point appellants contend that the court erred in refusing to submit Special Issues Nos. 11, 12, 13, 14 and 15. These issues submit the various elements which go to make up discovered peril.

We find no testimony in the record which would warrant the submission of the issues in question. As we have already said William Dedmon, appellants’ driver, himself testified that he was driving so slowly that he could have stopped within two or three feet. This testimony of Dedmon’s and the undisputed physical facts and surrounding circumstances tend to corroborate Railroad’s engineer and fireman when they testified that, though they saw the truck when it came from behind the trees, it was moving only at a speed of about ten miles per hour and they did not realize that the driver did not intend to stop. It was not until he was within about ten feet of the crossing that they realized he would not stop, then they did not have time to avoid the collision by stopping the train. As we have already stated there is also testimony that the train could not have been stopped within the distance which separated the train and the crossing when the truck was first sighted as it came from behind the trees about 100 feet from the crossing. All of the testimony-negatives the theory of discovered peril in this case. None of the testimony supports it. Appellants’ third point is overruled.

Appellants’ fourth point asserts error on the ground that there is insufficient evidence to support the jury’s finding in answer to Special Issue No. 8-A that the dirt road crossing the tracks was not a public road. In our discussion of appellants’ second point we described the road as pictured by the testimony and exhibits. There was sufficient evidence to support the jury’s finding. The point is overruled.

In their fifth point appellants contend that there is no evidence and there is insufficient evidence to support the jury’s answer to Special Issue No. 5 to the effect that the engineer did not fail to exercise ordinary care in not sooner applying the brakes on said train; and that said finding was the result of bias in favor of Railroad.

We see no merit in this point. We refer to the evidence heretofore mentioned in our discussion of other points. The evidence amply supports the jury’s answer to Special Issue No. 5. Appellants’ fifth point is overruled.

In their sixth point appellants make similar claims in regard to the jury’s answer to Special Issue No. 1 in which the jury found that the engineer was not operating the train at an excessive rate of speed.

The speed limit on the track in question is 80 miles per hour as set by the Interstate Commerce Commission. The testimony is that the train was traveling at a speed of about 70 miles per hour. According to the engineer, the normal speed of trains at this point is about 75 miles per hour. On the occasion in question the train was running at a speed below normal. The collision occurred about 9:30 o’clock in the morning on August 13, 1960. It was a clear day. The crossing is located at a somewhat secluded spot. Appellants’ sixth point is overruled.

In their seventh and last point appellants say that the court should have sustained their motion for judgment non obstante veredicto. As we have pointed out there was ample evidence to support the challenged answers of the jury. Appellants’ seventh point is overruled.

The judgment of the trial court is affirmed.

      . Hodges’ “Special Issue Submission in Texas”, Secs. 28, 30.


text:
    MID-TEX DEVELOPMENT COMPANY, Inc., Appellant, v. Mrs. Martha McJUNKIN, a Widow, et al., Appellees.
    No. 16169.
    Court of Civil Appeals of Texas. Dallas.
    May 24, 1963.
    Rehearing Denied June 28, 1963.

      Malone, Seay & Gwinn, Strasburger, Price, Kelton, Miller & Martin, Eugene Jericho, Donald V. Yarborough, Dallas, for appellant.
    Robert C. Johnson and Piranio & Fults, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal from a judgment for damages growing out of a collision involving three motor vehicles at the intersection of Beckley Boulevard and Camp Wisdom Road within the city limits of Dallas, Texas.

Appellee Mrs. Martha Mcjunkin, a widow, sued appellant, Mid-Tex Development Company, Inc., hereinafter called Mid-Tex, and Vernon Howard Speer. Each of the defendants filed a cross-action against the other.

A jury found that Neal, the driver of the Mid-Tex truck, did not fail to keep a proper lookout, did not fail to make timely application of the brakes, did not drive faster than would be prudent under the circumstances and did not fail to yield the right of way to Speer. However, the jury found that the Mid-Tex driver failed to make a turn to his left which a person of ordinary prudence would have made under the circumstances, which failure was a proximate cause of the collision.

As to Speer the jury found that he was not driving too fast. But it found that he entered the intersection when the truck was so close as to constitute an immediate hazard, and that he failed to keep a proper lookout, failed to apply his brakes, failed to yield the right of way to the truck, which act and failures were each a proximate cause of the collision, but that none of them was the sole proximate cause of the collision.

The trial court refused to submit the defendants’ requested contributory negligence issues in regard to Mrs. Mcjunkin, the plaintiff.

After return of the jury verdict a joint and several judgment for $26,100.00 was rendered in favor of Mrs. Mcjunkin against Mid-Tex and Speer. A take nothing judgment was rendered against each of the defendants on its cross-action against the other.

Mid-Tex has filed a supersedeas bond in the sum of $30,000.00 payable to Mrs. Mc-junkin and Speer. The latter has not filed, either a cost bond on appeal or a super-sedeas bond. Nevertheless in his brief Speer has presented several cross-assignments of error and prays that the entire case, including his cross-action against Mid-Tex be remanded for another trial.

■ Mid-Tex has filed a motion asserting that Speer’s cross-assignments are not entitled' to our consideration, and praying that we dismiss the appeal insofar as Speer attacks-, that portion of the judgment which provides that Speer take nothing by way of his cross-action against Mid-Tex.

Mid-Tex has appealed from the entire judgment, not merely from a part-thereof. Since its supersedeas bond is-payable to both Mrs. Mcjunkin and Speer,, the latter is entitled to urge cross-assignments of error, though he did not file an-appeal bond. Graham & Locke Investments v. Madison, Tex.Civ.App., 295 S.W.2d 234, 242; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427; 4 Tex. Jur.2d 464. Appellants’ motion to dismiss, part of the appeal is overruled.

FACTS

At the time of the collision about 5:00' o’clock P.M. on February 24, 1960 both, Beckley Boulevard and Camp Wisdom Road.' were covered with ice, snow and sleet.

Beckley runs in a general direction of north and south. Camp Wisdom Road runs. in a general direction of east and west. The intersection is somewhat wider than* either of the roads as it approaches the intersection. A short distance from the intersection Camp Wisdom Road divides on-both east and west approaches, with a-, grass covered island separating its left and' right lanes. Near the point of the division,, at the time of the collision, there was a sign-which read “Keep Right”. Just ahead of the intersection was a stop sign.

On the occasion in question a large gasoline truck owned by Mid-Tex and being driven by its employee, Alden E. Neal, was-proceeding north on Beckley. The road at that point is slightly uphill. Neal had delivered a tank of gasoline to La Grange, Texas and was returning to Dallas with his ■empty truck. The vehicle consisted of a 1953 International Truck Tractor and a Trailmobile Trailer weighing between 18,-000 and 20,000 pounds.

Speer was driving his 1952 Morris automobile in an easterly direction on Camp Wisdom Road. His vehicle was a very small car of foreign make. Camp Wisdom Road is also slightly uphill as it approaches the intersection from the west. Mrs. Mc-junkin was proceeding south on Beckley in her 1949 Chevrolet automobile.

The testimony is not in accord as to the facts with reference to the collision itself. Neal says that Speer did not obey the stop sign facing him near the intersection, hut came through without stopping, then made a left turn onto Beckley going north. There his Morris car started skidding and turning until it faced south. Neal is the only witness who so testifies. He says further that he started to turn to his left in order to avoid colliding with Speer’s car, then changed and veered to the right, the left side of his truck colliding with the left side of Speer’s car.

Testimony in behalf of Speer is to the effect that Speer stopped at the stop sign on Beckley facing the intersection, but was unable thereafter to start forward because his wheels slipped on the ice. Twice he backed up to make a new try. The third time he went on into the intersection. He claims he had successfully made the left turn onto Beckley and was proceeding in a northerly direction a short distance north of the intersection when the Mid-Tex truck overtook him and ran into him, striking the side of his car.

A passenger in Speer’s car testified that Speer’s car did not start spinning until it was hit by the truck. There were two other eye witnesses, neither of whom testified that Speer’s car started to skid or spin before the collision.

Mrs. Mcjunkin was well over on her side of Beckley as she was proceeding south approaching the intersection. The collision between the huge truck and trailer and the tiny Morris automobile caused the two pairs of the truck tractor’s rear wheels to become detached from the body of the tractor together with their axle, springs and spring hangers. The rear frame of the tractor then dropped to the ground, but the two pairs of detached wheels rolled onward and across the road, striking Mrs. Mcjunkin’s Chevrolet automobile on its left side. The car was greatly damaged and Mrs. Mcjunk-in suffered serious injuries.

This narrative of the facts necessarily will be amplified later in connection with our discussion of appellant’s points on appeal.

OPINION

In its first two points Mid-Tex says that the court erred in submitting special issues Nos. 7 and 8, in answering which the jury found that (7) Neal failed to make “that turn to his left which a person of ordinary prudence would have made under the same or similar circumstances,” and (8) that such failure was a proximate cause of the collision. In its third point Mid-Tex says that the court erred in overruling its motion for judgment non obstante veredicto, or to disregard the jury’s answer to issues Nos. 7 and 8.

There is ample evidence in the record to support the submission of the two issues. Beckley is wide enough to carry four lanes of traffic, two in each direction. The intersection is still wider. There is evidence that the Beckley part of the intersection is at least 270 feet long, the paved part is 50 feet wide at the south end; 45 feet wide at the north end; and 100 feet wide at a point between the two islands.

Neal testified that Speer was near the edge of the east shoulder of Beckley at the time of the collision. There is testimony that Mrs. Mcjunkin was well over to the right of Beckley looking south. Speer’s Morris is a very small car. It is not near as wide as an ordinary car. There was room for the Mid-Tex track to pass to the left between Speer’s car and Mrs. Mcjunk-in’s car. Neal himself says that he started to turn to his left, but changed course and veered to his right. The first three points of appellant Mid-Tex are overruled.

Mid-Tex’s fourth point asserts error because the court refused to submit the following issue: “Do you find from a preponderance of the evidence, that Alden E. Neal, the operator of the Mid-Tex Development Company Truck at the time of the collision in question, was acting under an emergency?” Submission of the above issue was requested along with an appropriate definition of emergency and an issue inquiring whether after an emergency arose Neal did not exercise that degree of care which a reasonably prudent person would have exercised under the same and similar circumstances.

After a careful study of the record we have concluded that the court did not commit error in refusing to submit the requested issues.

Among the necessary elements of imminent peril, or emergency are these: (1) the condition must have arisen suddenly, (2) it must have arisen unexpectedly; (3) it must not have been proximately caused by the negligent act or omission of the person whose conduct is being inquired about; and (4) the conduct which would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate. International & G. N. R. R. v. Neff, 87 Tex. 303, 28 S.W. 283; Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545; Younger Bros. v. Ross, Tex.Civ.App., 151 S.W.2d 621; White v. Munson, 162 S.W.2d 429; Sam v. Sullivan, Tex.Civ.App., 189 S.W.2d 69; Garner v. Prescott, Tex.Civ.App., 234 S.W.2d 704; Ynsfran v. Burkhart, Tex.Civ.App., 247 S.W.2d 907; Goolsbee v. Tex. & N. O. R. R. Co., 150 Tex. 528, 243 S.W.2d 386; Havens v. Guetersloh, 255 S.W.2d 233; Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767; Union Transports, Inc. v. Braun, Tex.Civ. App., 318 S.W.2d 927.

In the light of the undisputed testimony it cannot be said that the hazardous condition confronting the driver of the Mid-Tex truck was either sudden or unexpected. We quote Neal’s own testimony:

“Q And when did you first apply your brakes? Any brakes?
“A When I realized there was danger.
“Q Where were you?
“A Within 150 or 175 feet.
“Q Is that when you first saw him?
“A Yes, sir.
“Q When you first saw him, you put on your brakes ?
“A. I applied the brakes when I realized there was danger.
“Q Well, I think you have said you realized that when you were 150 to 175 feet?
“A When I saw him approaching the highway,, and realized there was danger and when I saw that he was going to come onto the highway, then is when I applied my brakes. I was within some 150 to 175 feet of the intersection; within that distance.” (Statement of Facts, pages, 559-560)

If the truck was 150 to 175 feet from the intersection when its driver realized there was danger, it was then still further away from the point where the collision occurred. Neal says that the collision took place in the northeast quadrant of the intersection. This would be at a point north and east of the center of the intersection.

The testimony varies as to the distance from the south end of the intersection to the point where the collision took place. One witness estimates that the impact occurred 258 feet north of the south end of the intersection; another, 200 feet; another, 170 feet; and another, 120 feet. Taking the minimum distances, if Neal realized the danger when he was 150 feet from the intersection and the collision took place 120 feet north of the south end of the intersection, the impact occurred 270 feet from the point where Neal realized that a dangerous situation confronted him. This would mean that nearly 12 seconds elapsed between the time Neal, traveling 15 miles per hour, realized that he faced a dangerous situation and the time of the collision. He was a truck driver of 25 years experience. He knew that Beckley was covered with ice and snow and therefore that Speer’s car might skid. The emergency, if there was one, was neither sudden nor unexpected.

The burden was on Mid-Tex to show that Neal’s failure to turn left took place after the emergency arose, thus excusing his failure to turn left. Mid-Tex has not discharged this burden.

Neal testified that he slowed down from 50 miles to 15 miles per hour after he realized the danger, that he had the truck under control up to the time of the collision and that it did not go out of control until after the collision.

The very wording of Mid-Tex’s requested issue indicates that if there was an emergency, as Mid-Tex contends, it arose at or very near the time of the collision itself. This is in keeping with Neal’s testimony. He testified (and he was the only witness to so testify) that Spear’s car skidded and spun around prior to the collision. It had then already passed the center line of Beck-ley, and had made its left turn into Beckley headed north and had reached a point in the northeast quadrant of the intersection. Neal testified that Spear’s car then began to skid and spin and that the truck at that time was too close to the little car to stop.

If this was an emergency it arose after Neal had negligently failed to turn left. Prior to the alleged emergency he had continuing opportunities to turn left into Camp Wisdom Road, or to turn to the left of Speer’s car which had reached a point on the east side of Beckley. According to his own testimony Neal already knew that danger lay ahead. If Neal had the truck under control right up to the time of the impact, as he says he did, he could have turned to his left had he so willed some time before the emergency arose. His failure to turn to the left was negligence which concurred with Speer’s negligence in creating the later emergency.

Mid-Tex’s fourth point is overruled.

In its fifth, sixth and seventh points Mid-Tex complains of the court’s refusal to submit issues in regard to Mrs. Mcjunkin’s alleged contributory negligence with respect to proper lookout, timely application of the brakes on her vehicle, and failure to steer to her right.

We see no merit in these points. Neal, the driver of the Mid-Tex truck testified that he saw no improper driving on Mrs. Mcjunkin’s part and that she did nothing to contribute to the accident. B. G. Garrison, the police officer, of fourteen years experience, who investigated the accident shortly after the collision, testified as to the position of the vehicles when they came to rest after the accident. He located the point of collision by the debris on the road. He testified that Mrs. Mcjunkin had absolutely nothing to do with the accident.

While the above testimony cannot be accepted as conclusive we think that the court properly refused to submit the three requested issues for a very good reason indeed: there is no evidence shown in the record to support their submission.

The undisputed testimony is that Mrs. Mcjunkin was well to the right of the center lane of Beckley moving at a moderate rate of speed. She testified that when she first saw Speer lie was crossing the intersection, but that his car completed its left turn onto Beckley and at the time of the collision was on the right lane of Beckley headed north.

Appellant points out that Mrs. Mc-junkin testified that she does not remember whether she applied her brakes, or turned to her left or right, and,, does not know whether Speer stopped at the stop sign, or how close the truck was when Speer came out onto the highway. The burden was on Mid-Tex to prove its allegations of contributory negligence. In the light of the established circumstances of the collision the above negative statements by Mrs. Mcjunkin are not evidence of any negligent act or omission on her part.

Appellant also relies on this testimony by Mrs. Mcjunkin:

“A. If I had known there was going to be an accident, I would have made some effort to have gotten out of the way, but I did not.”

Appellant further relies on the testimony of Officer Garrison concerning his conversation with Mrs. Mcjunkin soon after the accident before she was taken away in an ambulance:

“Q Was she still seated in the Chevrolet at the time you talked to her?
“A Yes, sir, she was.
“Q Will you tell the jury substantially what conversation you had with her in regard to the matter ?
“A I asked if she could tell me anything about the accident. She said, ‘That all of a sudden these wheels were in front of me, I don’t know where they came from, I didn’t see anything but those big wheels.’ ”

Ordinarily questions of negligence and proximate cause are fact issues, but sometimes when the material facts are undisputed they become questions of law. Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522; Safeway Stores Inc. of Texas v. Brigance, Tex.Civ.App., 118 S.W.2d 812. After a careful consideration, of the testimony in this case we believe that,, as a matter of law, Mrs. Mcjunkin was under no legal duty to foresee the collision in question and the consequences thereof to her. Appellant’s fifth, sixth and seventh points are overruled.

In its eighth and ninth points appellant alleges error because the trial court refused to submit issues (with accompanying definitions) inquiring whether (1) Speer failed to have his car under proper control, and (2) whether such failure was the sole proximate cause of the collision.

We overrule appellant’s eighth and ninth points for two reasons:

(1) The issue as drawn is too general. Blaugrund v. Gish, Tex.Civ.App., 179 S.W.2d 257 (Aff. by S.C. 142 Tex. 379, 179 S.W.2d 266); Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143.

(2) The controlling issues concerning Speer’s conduct were submitted specifically. The jury found the Speer failed to keep a proper lookout, failed to apply his brakes properly, failed to yield the right of way and was so close to the intersection as to, constitute an immediate hazard, each of which acts of negligence was a proximate cause of the collision. But it is significant that the jury also found as to each of said acts of negligence, that though it was a proximate cause, it was not the sole proximate cause of the collision. The jury further found that Speer was not negligent in the matter of speed. The submission complied with the requirements of Rule 279, Texas Rules of Civil Procedure.

Appellant relies on Choate v. Meredith, 330 S.W.2d 548; Anderson v. Garza, Tex.Civ.App., 311 S.W.2d 910; and Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877.

The point of error raised in the above cases challenged the sufficiency of the evi■dence to support the jury’s findings. In none of them was a point of error based on the court’s submitting or refusing to sub.mit the issue. In none of them were there jury findings that each of several acts of negligence was not the sole proximate cause.

In its points ten through fifteen appellant complains of the court’s refusal to submit issues inquiring whether Speer was negligent in that he approached and entered the intersection at an excessive rate of speed, whether he changed the course and direction of his vehicle when it could not be done in safety; whether he moved his vehicle forward into the intersection when such movement could not be made with safety; whether he attempted to swerve in front of the truck; and whether he changed traffic lanes when such movement could not be made in safety.

In connection with all but one of the •above requested issues, an issue was also requested inquiring whether the act inquired about was the sole proximate cause ■of the collision.

We see no merit in appellant’s points ten through fifteen. As to the question of speed the court submitted issue No. 19, which inquired whether Speer was driving faster than a person of ordinary prudence would have driven. The jury answered •“No”.

As to the other requested issues we think that they are substantially covered by the issues that were submitted. Here again the submission meets the requirements of Rule 279, T.R.C.P.

Should we be in error in the foregoing ■conclusion, the error, as we see it, is harmless. Speer was found to be negligent in several particulars,, each of which was a .proximate cause, but none of which was the sole proximate cause of the collision. Further findings of negligence and proximate cause against Speer would not have changed the judgment. Appellant’s tenth through fifteenth points are overruled.

In its sixteenth and last point appellant complains that Mrs. Mcjunkin’s attorney in his argument to the jury made certain mathematical calculations in seeking to demonstrate the amount of damages his client had sustained, using a blackboard in that connection. Appellant presents an excellent brief in support of its contention that this was error, citing and quoting authorities from other jurisdictions.

However, the rule in Texas is well settled to the contrary of appellant’s contention. Chemical Express v. Cole, Tex.Civ.App., 342 S.W.2d 773; Louisiana & Arkansas Ry. Co. v. Mullins, Tex.Civ.App., 326 S.W.2d 263; Continental Bus System v. Toombs, Tex.Civ.App., 325 S.W.2d 153; and J. D. Wright & Son v. Chandler, Tex.Civ.App., 231 S.W.2d 786. Appellant’s sixteenth point is overruled.

In three points on appeal Vernon Howard Speer asserts that the court erred in (1) refusing to submit his requested issues pertaining to the contributory negligence of Mrs. Mcjunkin; (2) refusing to grant him a new trial on the grounds that the jury’s findings of negligence against him were contrary to the overwhelming evidence; and (3) refusing him a new trial on the grounds that the jury’s findings of no damages to him resulted from jury prejudice.

Speer’s first two points are multifarious and too general to be entitled to our consideration.

As we have heretofore held in this opinion we find no evidence in the record which would warrant the submission of contributory negligence issues pertaining to Mrs. Mcjunkin. Speer refers to the testimony of Mrs. Mcjunkin wherein she states that the first time she saw Speer he was coming all the way across the intersection on Camp Wisdom Road. This is not evidence of negligence on her part, especially when it is remembered that her car did not collide with Speer’s car. Speer had cleared the crossing of Camp Wisdom Road and was not in Mrs. Mcjunkin’s path when the truck-trailer collided with his car. Mrs. Mcjunkin’s vehicle never did come into contact with the body o-f the truck-trailer. It was the rear wheels of the truck which came loose from the truck, rolled across the highway and struck Mrs. Mcjunkin’s car when she was well over on her side of the road.

There was ample evidence to support the jury’s findings of negligence on the part of Speer. Officer Garrison testified as follows :

“Q * * * did you ⅛⅛ £0 ⅛6 driver of the Morris automobile at the scene of the accident?
“A I did, sir.
“Q And tell the jury the conversation you had with-was he still seated in the car?
“A He was in the car when I arrived, yes, sir.
“Q Now tell the jury the conversation you had with Speer at the scene of the accident?
“A He stated, T saw the truck coming but thought I could beat it.’ ”

If it was error for the jury to find that Speer suffered no damages, it was harmless error,, for the findings of negligence against him made the issue of damages immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.

The judgment of the trial court is affirmed.

ON REHEARING

In its motion for rehearing Mid-Tex Development Company asserts that we erred in a statement of fact when we said, “Neal testified that Speer was near the edge of the east shoulder of Beckley at the time of the collision.”

Our statement was based in part on the testimony of Neal as follows:

“Q Now then, when he was up here, he was on your extreme right wasn’t he?
“A No, sir, not on the extreme right, the extreme right would be on the shoulder -of the highway.
“Q Well, according to you he was right on the edge of the shoulder, wasn’t he?
“A Near that.
“Q But you had through this whole area, you had approximately 50 feet of paving, did you not? You see the scale here, one inch is ten feet. You have got almost five inches there, you have almost fifty feet of pavement through there, didn’t you? I say pavement, I am talking about asphalt?
“A I don’t know how far.
“Q Will you take that and lay it up on there and see how many inches ?
“A According to the map that is true.” (Statement of Facts, pages 625-626) (Emphasis ours)

Appellant says that we erred in a statement of fact when we said, “Neal testified that he slowed down from 30 miles to 15 miles per hour after he realized the danger.”

Our statement was based in part on Neal’s testimony as follows:

“Q * * * Now with reference to the intersection of Camp Wisdom Road and Highway 77, Mr. Neal, where were you in your truck when you first saw Mr. Speer’s, car.
“You mean distance?
“Yes.
“I will say approximately 150 to 200 feet.
“And you were traveling how fast at that time ?
“Approximately 30 miles an hour. (Statement of Facts, pages, 133— 134)
Q Could you estimate your speed at the time of the collision for the jury?
“A That would be hard to do, scooting on ice, I suppose 15 or 20 miles an hour.” (Statement of Facts, pages 142-143)

Our original opinion quoted testimony from Neal to the effect that he applied the brakes when he realized there was danger and that he was then within 150 or 175 feet of the intersection.

The motions for rehearing of Mid-Tex Development Company, Inc. and Vernon Howard Speer are overruled.


author: McNEILL, Justice.

text:
    Felix A. DAVIS v. ALWAC INTERNATIONAL, INC., et al.
    No. 6545.
    Court of Civil Appeals of Texas. Beaumont.
    May 2, 1963.
    Rehearing Denied June 26, 1963.

      Nowlin Randolph, Houston, for appellant.
    Baker, Botts, Andrews & Sheperd, Houston, for appellees.
   McNEILL, Justice.

Monorail, Inc., was organized in Houston in 1955 to develop monorail transportation. Its three moving spirits from mid 1955 through September, 1959, were Murel Good-ell, president, Weldon Appelt, a vice president, and appellant Felix A. Davis, a vice president, director and member of the company’s executive committee. By 1957 Monorail, Inc., was in financial straits. Knowing that the Swedish international financier, Dr. Axel Wenner-Gren was also very interested in monorail transportation, the three, Goodell, Appelt and Davis, visited him in Mexico City on January 7, 1957. As a result of that visit the Wenner-Gren interests invested $300,000.00 in Monorail, Inc., stock and advanced Monorail, Inc., $400,000.00 over the period of a year or more.

The present suit by appellant Davis was also a result of the meeting with Dr. Wen-ner-Gren. Davis sued appellees, Alwac International, Inc., Wegematic Corporation, Alweg Corporation and Monorail, Inc., insofar as now material, upon two causes of action. The first was for past due salary of $51,550.00 @ $3,000.00 per month which he claimed appellees owed him based upon a contract of employment made originally in 1956 between him and Monorail, Inc., and also upon an alleged agreement which was made when he, Appelt and Goodell visited Wenner-Gren in Mexico City on January 7, 1957. In addition, appellant alleged that Dr. Wenner-Gren, at that meeting, undertook to and did agree to pay him, Davis, through corporations controlled by Wen-ner-Gren, the salary which Monorail, Inc., had contracted to pay; that the four companies sued were controlled by Wenner-Gren and were a part of the Wenner-Gren interests. The other count in appellant’s suit was one sounding in tort based upon the allegation that the termination on September 27, 1959, of his employment with Monorail, Inc., under the written employment contract made by the board of directors of said company with him was the result of a conspiracy to discharge him made prior to June 1, 1958, between the four companies sued. Appellees answered the suit and pleaded, among other defenses, Subsection 2 of the Statute of Frauds. In addition, Monorail, Inc., filed cross-action against appellant to recover certain inventions or improvements made by appellant upon that company’s equipment while he was connected with it.

The case was submitted to the jury upon 51 issues. In response to Issue No. 5, the jury found that Axel Wenner-Gren on January 7, 1957, agreed to pay appellant’s salary “through corporations controlled by him”. In response to Issue No. 24, the jury found that on said date appellant refused direct employment by the Wenner-Gren interests and in response to Issue No. 25, they found that the “main purpose and object” of the agreement made by Dr. Wenner-Gren, was to guarantee payment to Davis of his salary if Monorail, Inc., did not pay the same. While Dr. Wenner-Gren testified in this cause by deposition, he was never made a party thereto. After verdict, appel-lees filed their motion for judgment, or alternatively, motion for judgment, n. o. v., or alternatively, motion to disregard certain issues. In accordance with the prayer of this composite motion, the court gave appellant judgment for exactly the amount prayed for by appellant in his motion for judgment but limited his recovery to ap-pellee, Monorail, Inc. Since Monorail’s position is different on this appeal from that of the other three appellees, when referring herein to the latter three, they will be called Alwac, Alweg and Wegematic.

Appellant attacks this judgment upon numerous grounds, none of which we conclude are sound. First, he says that since appellees, including Monorail, Inc., moved the court to render judgment in appellant’s behalf against Monorail, Inc., for the amount recovered, this necessarily established three things: (1) the amount of salary due $51,550.00; (2) that appellees adopted the jury’s answer to Special Issue No. 5 which found that Wenner-Gren on January 7, 1957, agreed to pay Davis’ salary through corporations controlled by him; and (3) in answer to Special Issue No. 7, the jury found appellant’s attorneys fees to be $14,000.00. Appellant then reasons from this premise that having recognized Wen-ner-Gren was to pay Davis’ salary through controlled corporations, and asserting Al-wac, Alweg and Wegematic were controlled by Wenner-Gren, they cannot escape the same judgment. In answer to this proposition, it appears that at no place in the judgment rendered by the court does the court or Alwac, Alweg and Wegematic, or Monorail, Inc., for that matter, approve, recognize or adopt Issue No. 5. The judgment recites that appellant’s motion for judgment was overruled and then states :

“and the Court having heard and granted the defendant’s motions for judgment, or alternatively motion for judgment non obstante veredicto, or alternatively motion to disregard certain special issues, and alternatively objections to plaintiff’s motion for judgment, and plaintiff’s attorney having been served with the same and having appeared in answer thereto; and the Court being of the opinion that Special Issues Nos. 24 and 25 and the answers thereto are proper and are supported by the evidence and that they constitute a defense in law as to the defendants Alwac International, Inc., Wegematic Corporation, and Alweg Corporation, and the Court being of the further opinion that judgment should be rendered for the plaintiff Felix A. Davis against only the defendant Monorail, Inc., for $73,256.04 on plaintiff’s cause of action for salary (said sum of $73,256.04 consisting of $14,000.00 found as attorney’s fees and the agreed sum of $51,550.00 as salary, with interest at 6%' per annum. * *)”

In view of the alternative sections of ap-pellees’ motion, it cannot be said that the sufficiency of Issue No. 5 was recognized or approved. 4 McDonald, Tex.Civ. Practice, Sec. 17.32, p. 1414. And it was stipulated that the balance owing in salary to appellant was $51,550.00. The judgment for the salary, interest and atty’s fees went against Monorail, Inc., only. There is no rule that one (Monorail, Inc.) actually acknowledging owing the money may not, either by admission or confession, or on one of several causes of action, allow a party to recover judgment without helping him create a theory against other defendants who are differently situated. The fact that Monorail, Inc., is willing to acknowledge responsibility for a debt it admits owing does not bind the other appellees to accept the loosely knit terms of Special Issue No. 5.

In this connection, Alwac, Alweg and Wegematic assert that Special Issue No. 5 is too indefinite upon which to establish any liability against them for several reasons. First, there is no finding by the jury as to the identity of the “so-called” controlled corporations. Second, there is no finding that these corporations were the alter ego of the Doctor, nor that the Doctor was the alter ego of these corporations. Third, there was a failure upon the part of appellant to establish that Dr. Wenner-Gren was authorized by any of the appellees to speak for it. We think these points pose serious problems in connection with appellant’s proof. However, we think it unnecessary to pass upon the points as it is our opinion that the defense urged by Alwac, Alweg and Wegematic that the promise of Wen-ner-Gren, if made, was one to answer for the debt, default or miscarriage of another is sound and defeats appellant’s recovery as to the three.

In connection with this defense under Art. 3995, it will be recalled that the 24th jury finding was that appellant refused direct employment by the Wenner-Gren interests; and the 25th finding was that in agreeing to pay appellant’s salary through corporations controlled by him, Wenner-Gren undertook to guarantee payment to Davis of his salary if Monorail, Inc., did not pay the same. Appellant asserts we should not consider the 24th finding because Issue No. 24 is not an ultimate but an evidentiary issue. This perhaps is true, but we need not decide the question. From evidence presently to be pointed to, it is shown that Wenner-Gren attempted, in the conference he had with them on January 7, 1957, to give the three, Davis, Appelt and Goodell, direct employment, but they declined. That they did decline, that they were not directly employed by Wenner-Gren, was an item for the jury to consider in answering the 25th issue. Appellant next asserts that there is no evidence to support these findings. The evidence clearly supports the 24th: Appellant and Appelt testified Wenner-Gren wanted to hire Davis but Davis refused; on appellant’s attorney’s fee, appellant’s attorney asked the hypothetical question to the expert on such fees, “The European capitalist at his conference first offered to employ the three officers of the Houston Monorail Co. (Goodell, Davis and Appelt) but * * * they declined * * *—.” There is also evidence supporting the 25th finding: Wenner-Gren denied he made any promise to pay Davis’ salary; Davis said the doctor stated, “You will not have to worry about your salary”; appellant testified the doctor said, “He would personally see that our compensation was arranged for.” . Also bearing on this issue, the salary contract was made directly by Davis with the board of Monorail, Inc., for whom he actually worked; this board had set the amount and manner of payment; not once did Davis call upon Wenner-Gren or the three appellees, nor did any of them pay him salary, although Monorail, Inc., was in arrears for a year and a half; not once during the time involved did Davis tell the board of Monorail, or any other person, so far as the record shows, that he had a commitment from Wenner-Gren to pay his salary; for over a year after the agreement was made Davis received his salary from Monorail, Inc., and that was the only compensation he did receive; the fact that during the time Alwac, Alweg and Wegematic were interested in Monorail, Inc., all advances were made by check payable directly to it and none were earmarked for or referred to as payment of salaries.

Inasmuch as the 24th and 25th findings have support in the evidence, and the “main purpose and object” of the prom-isor, Dr. Wenner-Gren, who appellant claims was acting through and for the “controlled” corporations, was to answer for the debt of Monorail, Inc., the promise is proscribed by the Statute of Frauds. Appellant cites Housley v. Strawn Merchandise Co. (Com.App.), 291 S.W. 864, as repudiating the “main purpose and object” test in deciding whether an oral promise falls within or without the statute. However, Gulf Liquid Fertilizer Co. v. Titus (Sup.Ct.) 354 S.W.2d 378, p. 386, clearly sets the question at rest by upholding and applying this test to a set of facts much like the present case.

Appellant asserts that because he had performed his contract, had worked for Monorail, Inc., something over 2½ years from the time of the agreement with Wenner-Gren in January, 1957, this takes the case out of the restriction of Art. 3995. This is not the law. Higgenbotham-Bartlett Co. v. Dickey, Tex.Civ.App., 27 S.W.2d 248. Appellant’s cases are instances where performance was made by the promisee and payment made by promisor, and the promisor then sought to have his money back. See Binge v. Gulf Coast Orchards Co., Tex.Civ.App., 67 S.W.2d 1045; Bledsoe v. Pritchard, Tex.Civ.App., 107 S.W.2d 742.

Appellant asserts alternatively if he is not entitled to recover on the count for past due salary, that he should recover on his cause of action based upon the'theory that Monorail, Inc.’s termination of its employment contract with him was the result of a conspiracy between appellees to discharge him prior to June 1, 1958. Under this proposition, he claims he should recover the actual damages found, $51,550.00 (under Issue No. 3 which provided that in considering the damages the jury could take into consideration the past due salary owing him) and exemplary damages in the amount of $12,550.00 found by the jury in answer to Special Issue No. 4. The employment between appellant and Monorail, Inc., was upon a month to month basis and terminable at the will of either party. Appellant refers us to the case of Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800, 62 L.R.A. 962, 97 Am.St.Rep. 914, as supporting this theory of recovery. This case holds that persons who knowingly induce another to breach his contract with a third person gives the latter a cause of action against them for any damages from the breach. But, is the contract of employment terminable at any time at the will of either party breached by a third person’s inducement causing or bringing about the termination of such a contract? We think not. Richardson v. Terry, Tex.Civ.App., 212 S.W. 523; Kingsbery v. Phillips Petroleum Co., Tex.Civ.App., 315 S.W.2d 561. This is especially true in the present instance since Alwac, Alweg and Wegematic, as stockholders in Monorail, Inc., were involved economically and believed that the continuation of the employment contract was to their disadvantage. Terry v. Zachry, Tex.Civ.App., 272 S.W.2d 157. See MacDonald v. Trammell, (Sup.Ct.) 356 S.W.2d 143.

The judgment of the court provided that Monorail, Inc., on its cross-action against appellant have and recover the entire right, title and interest of appellant in and to the subject matter of certain applications for patents pending in the U. S. Patent Office. Appellant asserts that the court was in error in doing so. Facts show that these patent applications were for certain improvements made upon machinery and equipment by appellant. In answer to Special Issue No. 38, the jury found that appellant’s job included technical development work for Monorail, Inc. It is held if an employee "be employed to invent or devise such improvements, his patents therefor belong to his employer, since in making such improvements he is merely doing what he is hired to do.” Standard Parts Co. v. Peck, 264 U.S. 52, 44 S.Ct. 239, 68 L.Ed. 560, 32 A.L.R. 1033. This is also the law of Texas. Atlas Brick Co. v. North, (Com.App.) 288 S.W. 146. Appellant’s name was listed on the applications pending as a co-inventor. This was done while he was still serving as an officer and director of said company. Having been so connected with the company, he was in a fiduciary relationship with it and should have exercised the utmost good faith in all transactions touching his duties to it and its property. Wiberg v. Gulf Coast Land Development Co., Tex.Civ.App., 360 S.W.2d 563. Among the obligations which this fiduciary duty imposes on the appellant is the one that any inventions which he may develop while occupying such a position and which relate to the occupation of the corporation must be assigned to the corporation for its benefit. Dowse v. Federal Rubber Co., 7 Cir., 254 F. 308; Preis v. Eversharp, Inc., 154 F.Supp. 98.

It is asserted that since the prayer in the cross-action was for an order requiring appellant to execute proper assignments of these applications for patents that a judgment effecting the same result is not proper. No prejudice to appellant is shown and the complaint is without merit. Wilson v. Beaty, Tex.Civ.App., 211 S.W. 524, 529. Monorail included in its prayer an item for general relief. This is sufficient to sustain this part of the judgment. 81 C.J.S. Specific Performance § 159, p. 760; 33 Tex.Jur. 468.

It is urged that a new trial should be granted because of jury misconduct. Special Issue No. 8 instructed the jury to find from a preponderance of the evidence whether Wenner-Gren, Alwac, Alweg and Wegematic formed a conspiracy on or about January 18, 1957, to bring about the destruction in value of the capital stock of Monorail, Inc. The answer made was “we do not”. During the deliberation upon and before the answer made to this issue, Juror Sikes said, in effect, that when one buys stocks he takes the risk of it; that appellant should not be compensated for his stock in Monorail, Inc., since no other stockholder would be. The issue was whether a “conspiracy was formed.” Juror Ewell testified that the statement was not made to influence any juror one way or the other, and that nobody changed his vote immediately after such comment. This comment is not shown to have caused any juror to change his vote on the issue. The statement could well have been made by Sikes believing that there was no conspiracy.

Special Issue No. 38 inquired whether, from a preponderance of the evidence, the job appellant had with Monorail, Inc., included technical development work, and Special Issue No. 41 inquired whether, from a preponderance of the evidence, an improvement made by appellant was done within the scope of his work as an officer and employee of Monorail, Inc. Both issues were answered, “we do”. It is asserted by appellant that since the Juror Sikes stated that when a person is employed by a certain company and develops anything while working for it as a part of his job, the invention belongs to the company, and because of the Juror Spitzenberger’s telling of a man who had worked for a company but during his off time hours he made an invention which belonged to and was given to him, that these statements were unsworn testimony which affected the jury’s answers to the issues mentioned. Since we have neither been referred to nor found any evidence that involves the making of an invention in off time hours, Spitzenberger’s statement is wholly irrelevant and may be disregarded. While Sikes’ statement is not a complete, legally accurate one, it was not shown to what extent, if any, it influenced any juror to change his vote. Sikes was not an expert on the law and it would be a hopeless task to require each juror, in jury deliberation and debate, to state a completely accurate proposition of law. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364, 367. His comment appears to be nothing more than legitimate jury debate.

The other ground of alleged misconduct has to do with Issue No. 25. This issue required that the jury find whether “the main purpose and object of the agreement” made by Wenner-Gren “was to guarantee payment to Davis of his salary if Monorail, Inc., did not pay the same”. There was considerable discussion on this issue by the jurors. In the closing argument they had been warned by appellant’s attorney to give this issue very careful consideration and study. Appellant argues that the testimony of jurors show there was an agreement made by the jury to disregard the evidence and answer this issue “we do”, believing that this answer would give Davis his salary; that this was an unlawful agreement upon the part of the jury and the answer finding that there was a guarantee should not stand. The first two jurors who testified, a Mrs. Hutto and a Mrs. Jones, testified that in their opinion there was no evidence of a guarantee and said about five jurors wanted to answer the issue finding no guarantee which would require the answer “we do not”. The testimony of Juror Gin-zel stated the jury attempted to answer the issues one after the other but were not able to do so and they got to discussing the general question of whether they favored appellant or appellees; and after thus deciding, in working on the answer to Issue 25 it was said that Roach, the foreman, stated that they would have to answer this issue “we do” in order for Davis to get his money. And appellant concludes that because of the fact that the jurors did finally answer this issue “we do”, there was an agreement bringing this about and disregarding the evidence. On the other hand, there was testimony that at least some of the jurors felt there was evidence showing an oral guarantee. The foreman Roach stated that there was disagreement on this question. Juror Ewell also stated: “The statement was made or similar that Wen-ner-Gren had guarantied his salary or had said that they would pay him or that he would be taken care of. Let’s put it that way. That is what the statements were, that he would be taken care of in regard to that.” He also stated that they searched through the written evidence attempting to find a written guarantee. They could never find any such guarantee in writing. He stated there were lots of pros and cons in regard to the guarantee of the salary among the different jurors and the Juror Walker stated that the only guarantee they could find was an implied one. This juror stated that the jury was finally all in agreement to answer the issue in the way that it was done. When the verdict was brought in the jury was polled and each juror stated that the answer made to Special Issue No. 25 was his own individual answer and in the testimony by the jurors practically all of them stated that they answered this issue upon the evidence before them.

In addition to Ginzel’s statement inferring an agreement, the Juror Bailey indicated that there was an agreement made by the jurors to disregard the evidence and answer Issue 25 so as to give appellant his salary. Contrary to this, the Juror Ewell said that none of the jurors said that they should disregard the evidence and render verdict different from the way they thought the evidence supported, and that the jury answered all issues to the best of their ability from the evidence; and the Juror Bailey, who had said there was such agreement, testified that when the verdict was brought in he was asked whether the answer to Special Issue 25 was his individual answer. He said it was and stated that he was telling the truth when he did so. The Juror Spitzenberger said they never entered into an agreement to disregard any issue and decide the case in their own way. He further stated that they answered each issue to the best of their ability with the evidence before them.

There was, therefore, some testimony that the jury reached an agreement to disregard the evidence and answer this Issue No. 25 in a way that would bring about, in their view, a judgment for appellant. If this was established, the verdict would be vitiated. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364. There is, however, directly contradictory testimony from Jurors Spitzenberger and Ewell. In addition, practically each juror of the ten examined testified that the answer made to Issue 25 was based under the instruction of the court to answer the issue from a preponderance of the evidence. Since the trial court overruled the motion for new trial, he must have found that there was no such agreement and, consequently, no injury done. Younger Bros., Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546; W. W. Auto Parts, Inc. v. Hyak, Tex.Civ.App., 346 S.W.2d 919.

The judgment below is affirmed.