text:
    Patrick A. MULVEHILL, Appellant, v. The STATE of Texas, Appellee.
    No. 38474.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Stanley F. Swenson, W. Kendall Baker, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, R. W. Hope, Jr., and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The indictment, returned June 10, 1964, alleged that on or about December 1, 1963, appellant did with lascivious intent knowingly and intentionally expose his private parts and genital organs to Edith-, the named female, under the age of 16 years.

Trial before a jury on September 22, 1964, resulted in a conviction with punishment assessed at S years in the penitentiary.

Edith testified that she was 12 years of age and that “back in December of 1963, right before this last Christmas” she was 11; that on or about the 1st day of December she and her brother and sister went to appellant’s house across the street; that he asked her to go in the bedroom with him and after she did so he locked the door, rubbed her “butt” and rolled her pants down; that he asked her to lie on top of him, stomach down, and she did; that he left the room for about 2 minutes and returned with a jar of vaseline in his hand, he zipped down his pants, greased his sexual organ and placed it in her “behind” but did not actually penetrate her. She reported the matter to her parents on March 25, 1964.

Leroy, 10 year old brother of Edith, testified that “back in December, sometime prior to March” he was in the house when appellant took his sister into a bedroom and while they were in there by themselves he and his other sister knocked on the door which was closed and locked and the second time they knocked his sister told them to go away.

Appellant denied that he at any time was alone with the child in the bedroom, or that he ever exposed his private parts to her or put his hands on the rear portion of her anatomy or pulled down her panties.

The jury resolved the issue against appellant and the evidence is sufficient to fmstain their finding.

Appellant’s first claim of error is that the state failed to establish that the offense was committed at a time not barred by the statute of limitations.

The state was not bound by the date the offense was alleged to have been committed, but was required to prove that it was committed within three years prior to the return of the indictment on June 10, 1964.

Edith testified:

“Q. And, Edith, how old are you now?
“A. 12.
“Q. How old were you back in December of 1963, right before this last Christmas ?
“A. 11.
******
“Q. For the record you testified you were eleven years old at the time, is that right?
“A. Yes, sir.”
On cross-examination she testified:
“Q. Now, you have told us about some things that were supposed to have happened on December 1st of 1963, is that correct?
“A. Yes, sir.
“Q. In other words, that was before last Christmas, right?
“A. Yes sir.
“Q. It didn’t happen right at Christmas time, did it?
“A. No sir.
“Q. Now, before December 1st, 1963, that you were speaking about here a while ago, Pat had always been a gentleman and so on, hadn’t he?
“A. Yes sir.
******
“Q. How is it that you happen to remember it was December 1st, 1963?
“A. I don’t know.
“Q. Do you think maybe it might not even have been in the month of December ?
“A. It might not have.
“Q. So you told your mama then on this day in March that Pat had put his stick into you sometime in the past?
“A. Yes sir.
“Q, But you didn’t know for sure when it was, did you?
“A. That’s right.
“Q. You didn’t know at the time whether it was a week before or two or three months before, did you?
“A. No sir.
“Q. Well, are you the one that told your mama this happened on December 1st, 1963?
“A. Yes sir.
“Q. And that was just a guess on your part as to when it happened, is that right?
“A. Yes sir.
“Q. Did you tell your mama just about the same thing that day in March as you have told us now?
“A. Yes sir.”
Appellant’s wife testified:
“Q. Now, did she (Edith) tell you when this had happened ?
“A. She said she did not remember. It was somewhere just before Christmas or right after Christmas.
“Q. She thought it was just before Christmas or after Christmas but she wasn’t sure, is that correct?
“A. That’s right. She said she wasn’t sure.”

On cross-examination Mrs. Mulvehill testified that appellant was not living at her house “back in December 1963”; that he had the run of the house before they married in March 1964 and it was possible that he was at the house and the children were there with him “back in December 1963”.

On cross-examination appellant testified:

“Q. How long had you been going to the house and being there, as you say, after you would get off work prior to the time you got married?
“A. This was for a long period of time. This was specifically times I would be there. When she would ask me to be there. I would be working in Bellaire and she would ask me to go by and do some lawn work before she got there.
“Q. Would you be there sometimes three or four days during the day time ?
“A. I would say two or three times a week.
“Q. Over a six months period prior to the time you married?
“A. Yes sir.”

Appellant had the “run of the house” for only some six months before March 1964 when he married Mrs. Mulvehill. Edith testified that she was 11 years old at the time of the event and was 12 years old at the time of the trial in September 1964.

While Edith testified that she did not remember that it was December 1, 1963, there is sufficient evidence to show that the “December” and “Christmas” referred to in the evidence as the time the offense was committed was December and Christmas of 1963 and not of some prior year, and to show that the offense was committed within three years prior to the return of the indictment.

The remaining ground for reversal relates to the court’s refusal to declare a mistrial.

After testifying that appellant took his sister into a bedroom and that she said to go away when he and his other sister knocked on the door, 10 year old Leroy was asked and answered:

“Q. Had that ever happened before?
“A. No.
“Q. Did it ever happen again?
“A. I know it happened again but not that I was there.”

Appellant’s objection and request that “that testimony be stricken” was sustained but his request that the court declare a mistrial was refused.

We are cited to no authority and know of none which, under the evidence, required that a mistrial be declared.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Charles Lonnie JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38625.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    John E. McLean, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., and Truman Powers, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with two prior convictions for burglary alleged for enhancement; the punishment, life.

Officer Burkhart testified that on the night in question, in response to a dispatch, he drove immediately to the White Rose Distributing Company warehouse and upon his arrival saw a Negro male carrying a box and walking toward the chain link fence which enclosed the company’s property on the south side. He stated that he drove around to the south fence, and flashed his flashlight on appellant, who by that time was ten feet outside the fence and approximately the same distance from a hole in the chain link fence, “lying down in the grass”. Near appellant was a case of whiskey containing unbroken and some broken bottles. Assistance arrived; the officers carried appellant through the hole in the fence and returned the whiskey to the Vice President in charge of the company when he arrived at the scene shortly thereafter. The owner identified the remaining bottles of whiskey as bearing his label and described how the breaking and entry had been effected.

The prior convictions were established in the manner approved by this Court in Broussard v. State, 363 S.W.2d 143, however, there is an entire absence of any evidence that the 1961 conviction was for an offense committed after his 1955 conviction as alleged in the indictment. Only the judgments were introduced in evidence. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383. Appellant did not testify or offer any evidence in his own behalf.

Appellant’s counsel on appeal by brief and in argument urge that the evidence is insufficient to support the conviction because Officer Burkhart was unable to positively identify appellant as the Negro male he first saw on the warehouse premises. The officer was positive that appellant was the person hiding in the grass near the hole in the fence within a matter of minutes after he arrived. The silent burglary alarm operated by the American District Telegraph Company went off at 10:29 p. m. on the night in question and appellant was already under arrest by 10:34 p. m.

The rule as to juxtaposition adopted in Barker v. State, 168 Tex.Cr.R. 513, 329 S.W.2d 889, Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341, and Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381, clearly support the holding that the evidence set forth above is sufficient to support this conviction.

Appellant’s next contention that the Court erred in permitting proof of the pri- or convictions alleged for enhancement has been decided adversely to him by this Court in Edwards v. State, 388 S.W.2d 427, and the cases there cited.

Argument that trial counsel was inexperienced is not supported by the record.

The judgment is reformed under the holding of this Court in Haines v. State, 391 S.W.2d 58, to provide for appellant’s confinement in the Department of Corrections for a term of 12 years.

As reformed, the judgment is affirmed.


author: NORTHCUTT, Justice. DENTON, Chief Justice.

text:
    W. L. CONE, Appellant, v. CITY OF LUBBOCK, Appellee.
    No. 7551.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 27, 1965.
    Rehearing Denied Nov. 1, 1965.

      Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Fred O. Senter, Jr., City Atty., Don W. Reed, Asst. City Atty., Lubbock, for ap-pellee.
   NORTHCUTT, Justice.

This is an injunction case brought by the City of Lubbock whereby the City in the first count of its original petition sought to enjoin a violation of a state law by W. L. Cone who it is alleged was altering the surface of his property, located to the south and west of the intersection of 46th Street and Avenue A in the City of Lubbock, Texas, in such manner as to subject the surrounding property, both public and private, to harmful effects of storm and rain waters as a result of his failure to provide proper drainage safeguards and was thereby diverting the natural flow of the surface waters, which, if true, would be in violation of Article 7589a, Vernon’s Ann. Tex.Civ.St. By the second count of the City’s original petition it sought to enjoin W. L. Cone from proceeding with the digging and earth moving on his property until he complied with the cut and fill procedure of Section 16-13 of the Code of Ordinances, City of Lubbock, Texas. Accordingly, a temporary restraining order was issued ordering a hearing before the court on May 3, 1965, upon the City’s application for temporary injunction effective until final decree.

W. L. Cone filed his answer attacking the validity of Chapter 16 of the Code of Ordinances of the City of Lubbock containing Section 16-13 pertaining to lake areas and fills. Cone further denied that the flow of water reaching his land at the present time was the natural flow of water draining thereon from time immemorial but was because of changes in grades and contours and the permability of surfaces of their lands, that the flow of water reaching defendant’s land was no longer the natural flow but was a concentrated flow caused by the City to which defendant’s land was not subservient. Defendant further pleaded the plaintiff was guilty of laches in standing by while defendant moved 46,000 cubic yards of dirt during the past 60 days before taking action. The defendant also pleaded that the matter here involved was res judicata in that this same plaintiff, the City of Lubbock, filed Cause No. 42368 in the 99th District Court of Lubbock County, Texas, against the same defendant, W. L. Cone, involving the same matters here involved; then pleaded the judgment entered in Cause No. 42368 dissolving the temporary injunction and denying the plaintiff’s motion to make the temporary injunction permanent and ordering that the City of Lubbock take nothing as against W. L. Cone.

A hearing was had in this matter on May 3, 1965, and the court after said hearing entered its order decreeing the issuance of a temporary writ of injunction pending final hearing and determination of this cause restraining and enjoining W. L. Cone and his agents and employees from moving or re-arranging any dirt on the surface of the described property. From that order W. L. Cone excepted and perfected this appeal.

Appellant presents this appeal upon two assignments of error as follows:

POINT ONE .
“The former judgment is res judi-cata of the lack of right of the City of Lubbock to keep Cone from filling his own land for any reason then available to the City.
POINT TWO
“The City’s failure to introduce its Lake Area ordinance, its admission that adjoining landowners were being permitted to do what it sought to enjoin Cone from doing, and the absence of irreparable damage, combined to make the temporary injunction an abuse of discretion, denying Cone the equal protection of the law and denying him the use of his property without due process.”

Though we believe appellant’s second point of error is multifarious, we will consider the same. We will first consider appellant’s Point No. 2. In Paragraph 2 of appellant’s original answer and cross-action he admitted that the City of Lubbock had passed ordinances codified as Chapter 16 of the Code of Ordinances of the City of Lubbock containing Section 16-13 pertaining to lake areas and fills. Further, the ordinance appears in the Statement of Facts filed herein. We overrule that portion of Point No. 2 stating the City failed to introduce its lake area ordinance. As to the remaining portion of Point No. 2 we cannot hold that such matters were undisputed because we think there was evidence to the contrary. Furthermore, if such matters are developed and to be considered, we think they are matters to be determined on final hearing of this case. Appellant’s Point No. 2 is overruled.

Concerning appellant’s first point that the judgment in Cause No. 42368 was res judicata of the lack of right of the. City of Lubbock to keep Cone from filling his own land for any reason then available, to the City, consideration must be given to the pleadings in the former suit in testing what was involved and determined therein. It is a general rule in this state that the former judgment or litigation relied on as having adjudicated the matter and as a bar for further proceedings should have involved and determined the same final issue or that such issue or question should have been fairly within the scope of the pleadings. Davis v. First Nat. Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 144 A.L.R. 1. The former judgment, however, extends only to facts in issue as they existed at the time the judgment was rendered and does not prevent further proceeding where the facts have changed or new facts have occurred which may alter the legal rights or relations of the litigants. Fort Worth Stockyards Co. v. Brown, Tex.Civ App., 161 S.W.2d 549.

As we construe the matters involved in Cause No. 42368, the City of Lubbock sought to prohibit Cone from filling in his lake area until he caused to be filed and approved by the Planning and Zoning Commission of the City of Lubbock a plat or replat supported by plans and specifications for making uniform fills. The City in that hearing did not attempt to keep appellant from doing any filling of his property but to do so in a uniform manner — in other words, to receive what would naturally flow into his lake. There was nothing sought in that suit contending Cone was violating the provisions of Article 7589a, V.T.C.S. In this suit at bar the City in Count 1 of its pleadings is seeking to stop Cone from doing some things it is alleged he was now doing, diverting the natural flow of the surface water as to cause water therein to be concentrated in increased volume on and over the streets to cause great and irreparable injury to the streets, and, if true, would be in violation of Article 7589a and would constitute new facts occurring which would alter the legal rights and relations with the litigants. All such matters may be and, we think, should be determined on final hearing.

Judgment of the trial court is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DENTON, Chief Justice.

I respectfully dissent. In my opinion appellant’s plea of res judicata should be sustained. The essential facts of the two cases are identical. In both cases the City charges that by the filling of his property appellant is altering the natural flow of the waters. The judge of the 99th District Court made a final determination of this question when he denied the injunction in the previous case. The only new facts which have occurred since the final judgment of the prior case was the additional filling by appellant after the previous motion for injunction was denied and prior to the filing of the present suit. Appellant was then acting within his lawful rights as the City’s petition for injunctive relief had been denied. This action on the part of appellant did not alter the legal rights or relations of the litigants.

The fact the first suit did not specifically allege a violation of Article 7589a, V.A.C.S., is not material. That Act simply makes it unlawful to deviate the natural flow of surface waters. This in substance was the essence of the allegations of both suits, and the relief prayed for was the same. Even though it may be argued the issues in the two cases are not the same, the applicable rule was stated by the Supreme Court in Ogletree v. Crates, Tex., 363 S.W.2d 431:

“The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried.”

I would reverse the judgment of the trial court and order the temporary injunction dissolved pending a trial upon the merits.


author: HUGHES, Justice.

text:
    Jack F. RITTER, Jr., Appellant, v. Madeline Moore RITTER, Appellee.
    No. 11331.
    Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1965.
    Rehearing Denied Nov. 17, 1965.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellant.
    Graves, Dougherty, Gee & Hearon, Thomas G. Gee, Austin, for appellee.
   HUGHES, Justice.

This is a divorce suit. Madeline Moore Ritter, appellee, sued her husband Jack F. Ritter, for divorce and custody of their two minor daughters, and for a monthly allowance for their support, for attorney’s fees and costs. The ground for divorce was cruel treatment, alleged in general terms. Apppellant answered by a general denial. Trial was non-jury, resulting in a judgment as prayed for by appellee, and, in addition, partitioning their common property.

Appellant presents two points, the first being that the Court erred in granting a divorce because the evidence to support such decree was not full and satisfactory as required by Art. 4632, Vernon’s Ann. Tex.St., and the second point being that any cruel treatment which he may have been guilty of was condoned by his wife.

We overrule both points.

The parties were married in June 1955. They lived together until their separation on October 31, 1964. They have two daughters, Diane seven years, Susan four years. They are well educated persons. Appellant is a lawyer practicing in Travis County. His legal education was acquired after the marriage. Appellee is a college graduate, holds a teacher’s certificate and has been employed as a research assistant at the University of Texas while working towards a higher degree.

The parties’ problems seemed to have stemmed principally from financial difficulties. Mr. Ritter testified, “We had always been very tight; she always wanted to go to school and I wanted to go to school and we never had a financially comfortable situation. * * * Our budget has never fit.”

Appellant has engaged in unsuccessful political campaigns and this resulted, as he states, going “deeper in debt than we anticipated.”

These political campaigns also resulted in bickerings between the parties, mostly because appellant did not believe that his wife did all she should have done in his behalf and that, in a sense at least, she was responsible for his defeats.

The atmosphere in the home is best described by the older daughter in these words which were attributed to her: “My daddy fusses at my mother and yells at her every morning and every evening so loud that it sounds like all the people in the world are in one room yelling * * * And sometimes my daddy chases my mother all over the house, and when he catches her, my little sister and I have to run in another room so we won’t see.”

Appellant called his wife vile, unprintable names, and in the presence of the children.

The record discloses that appellant inflicted physical violence on his wife on four separate occasions, two in 1957 and in September 1963 and one in April 1964. None of the incidents was of a serious nature, from a physical point of view. The first two were pushings against the wall and slight blows on the side of the face. The latter two were “spankings.” We quote appellee’s description of the April 1964, chastisement: “Then in April the argument was that — we continued this thing about his career had been ruined and we were overspending in money, and all of this, and it was on the back porch of our house, and it was Sunday afternoon, and our children were there on that back porch, and he took me over his knee and he hit me and he likes to say, ‘No, this isn’t a spanking,’ but the blows were so hard that they left marks, and I was so frightened that I begged him not to do it, and I did make no effort to defend myself because I was not as strong as he. And after it was over — when it began the children ran outside, and after it was over, I was pushed down on the floor, and I swear this to be true — I am under oath — and when I got up, he said, ‘Would you like to go again ?’ ”

Appellant denied that he inflicted corporal punishment upon his wife as a result of a fit of temper. We infer from this that his treatment of her, in this respect, was deliberate.

Appellant testified, and while he professed love for his wife, he never denied any of the matters to which we have referred, and -he never expressed any regret for any of his past conduct or promised any different or better conduct in the future.

Both parties have frequently consulted marriage counselors, seemingly without success.

To condemn these parties to a continuation of the life reflected by this record would be for us to condone the conduct it reveals. Only the parties are capable of such forgiveness.

It is our opinion that the evidence to sustain the divorce was full and satisfactory.

The contention of condonation is based upon evidence that the parties cohabited as late as September 1964, the separation being October 31, 1964.

Condonation is an affirmative defense to a suit for divorce and should have been pleaded. Crittenden v. Crittenden, 214 S.W.2d 670, Tex.Civ.App. Galveston, n. w. h.

Mrs. Ritter testified that during the month of October 1964 the arguments between her and her husband continued and that he continued to call her ugly names. Under these circumstances, condonation, even if it had been pleaded, would not be established. In order for condonation to be an effective bar to a divorce action based on cruel treatment the injured spouse must, after condoning such cruelty, be treated with conjugal kindness and consideration, and, if not accorded this, the former acts of cruelty are revived. Barta v. Barta, 283 S.W. 201, Tex.Civ.App. Austin, n. w. h., Gomez v. Gomez, 234 S.W.2d 941, Tex.Civ.App. El Paso, n. w. h. The evidence refutes compliance with this requirement by appellant. There was no condonation.

The judgment of the trial court is affirmed.

Affirmed.

ARCHER, C. J., not participating.


author: CHAPMAN, Justice.

text:
    Johnny D. PERKINS, Sr., et ux., Appellants, v. Earl FISHER et ux., Appellees.
    No. 7522.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 4, 1965.

      Clayton, Kolander, Moser & Templeton, Amarillo, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellees.
   CHAPMAN, Justice.

This is an appeal from a judgment below against plaintiffs, Johnny D. Perkins, Sr., on behalf of his wife, Ruby Melton Perkins, against Flora Shaw Fisher, and husband, Earl Fisher, for personal injuries to Mrs. Perkins as a result of a rear-end collision in which an automobile driven by Mrs. Fisher “rear-ended” Mrs. Perkins’ automobile parked in the center of N.E. 20th Street, a thirty-one foot asphalt paved street in the City of Amarillo.

Mrs. Perkins had driven her daughter to school and was on the way home when engine trouble developed leading to the eventual stop of the automobile in the position just stated.

The case was submitted to the jury by the trial court upon a number of questions concerning alleged improper conduct of the two named ladies in the operation of their automobiles. Some issues required only the answer of proximate cause and some were submitted on questions of negligence with the proximate cause component.

Mrs. Fisher was found to have committed acts which the jury said proximately caused the collision and resulting damages to the Perkins. The jury also found that Mrs. Perkins (1) failed to drive her automobile to her right and as close as possible to the curb of the roadway after the machine commenced to sputter, that such failure was negligence and a proximate cause of the collision; (2) that she failed to keep such a lookout for vehicles approaching from the rear as an ordinary prudent person would have kept under the same or similar circumstances and that such failure was a proximate cause of the collision; (3) that stopping her car on the roadway without first giving a signal of her intention to do so was a proximate cause of the accident; and that (4) she was negligent in stopping her automobile in the south traffic lane while proceeding in an easterly direction on N.E. 20th Street, which was a proximate cause of the accident.

A take-nothing judgment was rendered, from which appeal is perfected by Appellants Perkins upon eleven points of error.

The first point contends the trial court committed reversible error in failing to ask the jury if the plaintiff was negligent in failing to signal. This point goes directly to the question of whether a violation of Subsection (c) of Section 68 of Article 6701d, V.T.C.S., constitutes negligence as a matter of law or if under the facts of this particular case the common law standard of the reasonably prudent man must be used in determining as a matter of fact whether the conduct of Mrs. Perkins was negligent.

Under the facts of that particular case it has been held in Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767 (N.R.E.) that Subsection (a) of Section 68 of Article 6701d was not negligence per se. Subsection (b) of the same article has been held to constitute negligence per se in Wilson v. Manley, Tex.Civ.App., 347 S.W.2d 778 (N.R.E.). Subsection (c) of the same article and section and which is here under consideration has not yet been construed so far as we have been able to determine.

Subsection (a) of Section 143 of Article 6701d makes it a misdemeanor penal act “ * * * for any person to violate any of the provisions of this Act unless such violation is by this Act or other law of this State declared to be a felony.” Subsection (b) sets the penal punishment upon conviction “ * * * for a violation of any of the provisions of this Act for which another penalty is not provided * *

Our Supreme Court in Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, has held that: “In this state we have followed the rule that the violation of a criminal statute is not merely evidence of negligence, but is negligence per se.” Theoretically, the case just cited when considered in connection with Subsections (a) and (b) of Section 143 of Article 6701d making the violation of any of the provisions of Article 6701d (with the exceptions therein mentioned) misdemeanors punishable by fine, it would appear a violation of any one of the many sections not included within the exceptions would be a violation of a criminal statute within the purview of Mundy v. Pirie-Slaughter Motor Co., supra, and therefore negligence per se. If such were true there is authority to the effect that it would be error for the trial court to require the jury to determine if such act was negligence. Davis v. Estes, 44 S.W.2d 952 (Tex.Com.App. Sec.tion B).

The Supreme Court in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931; and Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402, in construing Section 86 (d) of Article 6701d has wisely rejected such theory.

In the McFerrin case the court said:

“We reject the theory and hold that whether a train was ‘in hazardous proximity’ to a crossing, so as to impose on an approaching motorist a duty to stop must be determined by the court from the evidence of the facts and circumstances existing at the time the motorist was compelled to make a decision, and should not be determined by or from the happening of subsequent events. We would be loath, indeed, to hold that the legislature, by the enactment of Article 6701d, Sec. 86(d), laid down a rule of evidence by which in this situation it has exacted of the motorist perfect foresight of all eventualities.
* # * * * *
“It seems to us that in determining whether the fact situation is such as to call the statutory duty into existence, we should not hold the motorist to greater wisdom or better judgment than a reasonably prudent person, similarly situated, would exercise. Accordingly, we apply the objective common-law test of the reasonably prudent man and hold that before it can be said in a given case that an approaching train was ‘plainly visible’ as a matter of law, it must appear, as a matter of law, that a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it.”

We believe it may be said from the cases just cited that when the statute imposes a conditional, not an absolute duty, then the test of the reasonably prudent man must be applied unless the facts themselves show the person was guilty of the violation as a matter of law. In Wilson v. Manley, supra, the Beaumont Court of Civil Appeals recognized this rule in holding that 68(b) of Article 6701d does not lend itself to amplification or construction; therefore, a violation thereof is negligence per se. Therefore, the trial court in this case in failing after proper objections to submit the question of negligence as a component of the issue of failing to signal has in effect held that Mrs. Perkins under the facts of this case was under the obligation as a matter of law to do so. This is true because Section 68(c) does not impose an absolute liability but is conditional upon whether the driver had an opportunity to give such signal. Therefore, we must look at the evidence to determine if the facts were such that the trial court could say as a matter of law she was required to signal.

Pressing the brakes to give a signal would have simply stopped the automobile faster and would have made more hazardous the situation of the automobile following her if Mrs. Perkins traveled only the five or six feet she testified she traveled after the motor stopped.

The evidence is not clear from the record as to whether the glass in the door next to the driver was up or down where Mrs. Perkins could have given a hand signal immediately upon recognizing that her motor was in danger of stopping, thus indicating she was stopping in the center of the street. With respect to the windows the testimony shows:

“Q. Did you have the windows rolled up?
A. The windows up?
Q. Yes.
A. On this side was up, and on this side, I’m not sure — I believe it was down.”

It is impossible to tell from such testimony whether it was the window next to the driver that was down or the right window, which is material on the question of whether Mrs. Perkins had an opportunity to give such signal if she traveled only the five or six feet she testified to after the motor failure.

It is also not completely clear from the record as to' how far Mrs. Perkins traveled from the time the motor sputtered until the automobile stopped in the center of the street. Counsel for appellees was questioning Mr Sowell, who lived near where the accident occurred and observed the collision. He was asking him how far Mrs Perkins traveled from the first click of the starter after the motor sputtered and died * * “Do you know how many feet you have got there from where you have got the ‘x’ where your car was at the time.”

“A. Do I know how many?
Q. Just about.
A. I would have to approximate it.
Q. Approximate.
A. Roughly 50 to 75 feet.”

No exhibit number is referred to in the record as to where the “x” was but we find an “x” on Defendants’ Exhibit 1 marked on N.E. 20th Street and two symbols showing where the cars collided. Therefore, we believe we may assume from the record that the witness Sowell testified the Perkins’ car traveled: “Roughly 50 to 75 feet” from the time he first heard the click of the starter after the motor failure before the collision. It is difficult to follow Mrs. Perkins’ testimony but at one place in the record she testified the car sputtered, went five or six feet and stopped.

If she traveled 50 to 75 feet from the time the car sputtered and stopped and the glass to the door on the driver’s side was down, she clearly had an opportunity to give an appropriate hand signal that she was going to stop. If that testimony stood in the record clear and without contradiction, the court would have had more justification in finding as a matter of law that the facts required her to give the appropriate signal. As the record stands, however, we believe a submission of negligence was required.

We have written on this point only in an effort to state what we believe to be applicable rules under the facts of this case concerning Section 68(c) of Article 6701d and not because it controls the case.

In Special Issue No. 6 the trial court asked the jury if Mrs. Perkins failed to drive her automobile to her right on the occasion in question and as close as possible to the curb after the machine began to sputter, if such failure was negligence and if it was a proximate cause of the accident. The jury answered all questions in the affirmative. There is an abundance of evidence to support the answers. The jury had a right to decide under the facts of this case that she had plenty of time to do so if she traveled 50 to 75 feet. Additionally, she stated by her own testimony she could have done so.

Appellants present points on this series of issues to the effect that she was under no duty to drive toward and as close to the curb as possible; that 6(a) is a comment upon the weight of the evidence and that there is not any, or alternatively, insufficient evidence to support the issues.

We hold the issues were not improperly submitted as an inquiry of a common law duty and that there was an abundance of evidence to support the answers. It has been textually stated in 60 C.J.S. Motor Vehicles § 247, p. 603 that:

“A person operating a motor vehicle on a public street or highway is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own, * * *, and it is his duty to- operate the motor vehicle with due and reasonable care and caution under the circumstances for the safety of others, and for his own safety as well. This duty exists at common law and is not dependent on any statutory requirements, and ordinarily is not affected by statutes regulating the operation of automobiles.”

The Beaumont Court of Civil Appeals in Manning v. Block, Tex.Civ.App., 322 S.W.2d 651 at 655 (N.R.E.), has applied essentially the same duty of a driver in the following language:

“A person operating an automobile on the public roads must do so in a careful and prudent manner and with due regard for the rights of others on the road. This applies alike to cars preceding and cars following.”

For other authorities see Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 2a, Section 1195 at p. 31; San Antonio Transit Co. v. McCurry, Tex.Civ.App., 212 S.W.2d 645 (N.R.E.).

Though we believe appellants’ contentions concerning Issue No. 6(a) and its corollaries are without merit, even if we should be in error in what we have said, the answers to 11(a) and 11(b) would preclude recovery for appellants. There the jury found Mrs. Perkins was negligent iri stopping her car in the south traffic lane on N.E. 20th Street and that such negligence was a proximate cause of the accident.

The points urged against Issue 11(a) is that it was a comment upon the weight of the evidence, and that there is no evidence or insufficient evidence to support the issue.

Mrs. Perkins herself testified in effect that she could have driven over to the right against the curb even after the machine started sputtering. The jury had a right to determine from the evidence if she used ordinary care in permitting the car to stop in the south traffic lane on the occasion in question in view of her obligation to anticipate the presence of others both to the front and rear of her, as discussed in the last preceding points. For the same reasons there stated there is an abundance of evidence to support a finding of negligence on Special Issue No. 11(a). The record does not show a point challenging the proximate cause finding by the jury upon the issue.

Appellants next contend that the trial court committed reversible error in the submission of Special Issue No. 7 and its proximate cause corollary inquiring if Mrs. Perkins failed to keep such a lookout for vehicles as an ordinary prudent person would have kept under the same or similar circumstances. It is contended that Mrs. Perkins was under no duty to keep a lookout to the rear; that there was no evidence ór alternatively, insufficient evidence to support their submission; and that the answers were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The record shows the collision occurred at approximately 7:25 o’clock a.m. at a time parents were taking their children to school who attended Travis Junior High School in that area. Each of the ladies involved in the collision had just taken their children to school and were returning home. Mrs. Fisher testified in effect that she saw the Perkins’ car as it pulled from the curb at Travis Junior High School, drove on down Martin Road and entered N.E. 20th Street going east; that as it entered N.E. 20th Street she was following about two car lengths behind and Mrs. Perkins was proceeding at about 20 miles per hour; that as she drove she was watching the Perkins’ car and that she had no indication by signal or otherwise that Mrs. Perkins was slowing or stopping.

The oral evidence and exhibits show Mrs. Perkins was traveling in the center of a thirty-one foot street and that traffic could not go on straight, but had to turn either right or left a short distance ahead on Manhattan. As heretofore related, it also shows she knew she was having motor difficulties and that her car was slowing and might stop.

The knowledge that vehicular traffic had to' turn either to the right or left a short distance ahead, coupled with the knowledge that she was slowing and might stop appears to us to require a proper lookout to the rear in order to show due regard for the rights of others who might be following. It is without contradiction that she knew she was having motor trouble and there is evidence from which the jury could have believed she traveled 75 feet or more after such knowledge. We therefore, hold she was under obligation to keep a lookout to the rear for vehicular traffic. Manning v. Block, supra; Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116 (N.R.E.).

We have been unable to find any supreme judicial expression in our state on a situation closely enough analogous to our fact situation to cite it for our holding but believe the reasoning in the two cases cited is sound and that the points raised on the questions discussed are without merit. It would be only repetitious to relate evidence again in passing on the question of the great weight and preponderance of the evidence. We hold the evidence did not preponderate against the submission of the issues. In any event, the findings of the jury and the authorities cited on either one of two of the other three points discussed precludes recovery.

Finding no reversible error, the judgment is affirmed.

      . Those exceptions are “ * * * unless such violation is by this Act or other law of this State declared to be a felony.”

      . It cannot be gainsaid that a misdemeanor statute is a criminal statute.


author: NORTHCUTT, Justice.

text:
    Emil P. STEFANOV, Appellant, v. J. A. CEIPS, Appellee.
    No. 7526.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1965.
    Rehearing Denied Nov. 15, 1965.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Fitzjarrald & Poole, Amarillo, for ap-pellee.
   NORTHCUTT, Justice.

On September 30, 1953, Dr. Emil P. Stefanov, by his attorney, filed suit against Dr. J. A. Ceips seeking actual damages and also exemplary damages alleging that Ceips willfully and maliciously assaulted and beat Stefanov causing him great damage. Ceips, by his attorney, filed a general denial to said suit. On October 26, 1953, Ceips filed his application in said suit requesting stay of the proceedings in said cause until he was released from active duty with the army and for three months thereafter. On March 6, 1963, the suit was dismissed for want of prosecution. On July 16, 1964, Stefanov, by his attorney, filed a bill of review seeking to have the case reinstated. By agreement the case was reinstated. On January 2, 1965, the case came on for trial and the following proceedings took place:

“THE COURT: Gentlemen, please be seated. Now, let the record show at this time that the parties to this lawsuit, Emil P. Stefanov, as Plaintiff, and J. A. Ceips, as Defendant, have, in open Court, entered their stipulation to the effect that the previous dismissal of this case will be set aside, and that the case will be heard on the merits at this time before the Court without a jury.
“Mr. Gordon Treadaway, who has come into this case as Counsel for the Plaintiff, has requested leave to withdraw as counsel, leaving each party here representing himself without counsel.
“That is the stipulation as I understand it, Gentlemen, do I understand it correctly?
DR. STEFANOV: I wan — yes, sir. I want Mr. Treadaway to stay.
THE COURT: You want him to stay?
DR. STEFANOV: Yes.
THE COURT: You would like for him to represent you?
DR. STEFANOV: Yes.
THE COURT: But he asked leave to withdraw and I will grant that.
MR. TREADAWAY: And may I suggest this in the presence of the Court, that both parties be sworn, and that each party present his case in such a way that the friendly relationship now existing between these two medical doctors might continue in the future. Their relationship in this Court today has been most friendly, and to me, as an individual, that is important, and I am sure it is important to them as members of their profession. Thank you very much.
I (Whereupon, Mr. Treadaway (retired from the Courtroom.
THE COURT: Now, Gentlemen, in just a moment I will administer the oath to you, however, since neither of you will be represented by a lawyer here today I feel I should go into the matter a little bit and explain a little bit of the procedure to you. You may be more or less familiar with proceedings in Court, however, familiarity with proceedings elsewhere might not give you such experience that you would know what to expect here.
“Of course, in a case of this sort, a suit for damages being brought, the Plaintiff is permitted to open and close the evidence, which means he gets the first and last word. However, the defendant’s last word is not spoken until he sits down and says: ‘No more.’ And then, the plaintiff has the opportunity to close the evidence with the last word.
“After the presentation of the evidence, you will each be permitted a reasonable period of time in which to make a summation, an argument, in other words, addressed to the Court concerning the merits of your case.
“Now, that may seem like a fine distinction to make, and I assure you that since neither one of you is represented by counsel, we will not proceed according to very strict interpretations of our rules of procedure and evidence, but I may, at times, have to caution you to restrict yourselves to proper procedure.
“Now, in this case, since neither one of you is represented by a lawyer, at any time that either one of you has a question to ask of me concerning the proceedings, feel free to do so. Get my attention the best way you can, and please stand when addressing the Court is about the only requirement. You may remain seated now, but raise your right hands and be sworn.
(Thereupon the parties were (Sworn.
THE COURT: Now, Dr. Stefanov, it is your prerogerative to open the evidence, so, if. you will, come to the witness stand, please, sir.”

Thereafter the plaintiff and defendant made a number of statements as to the matters here involved and asked each other a few questions and the case was closed. On January 5, 1965, judgment was entered decreeing the plaintiff take nothing by his suit. From that judgment the plaintiff perfected this appeal. Hereafter Dr. Stefanov will be referred to as appellant and Dr. Ceips as appellee.

Appellant presents this appeal upon nine assignments of error. Since we are of the opinion the case should be reversed to permit appellant to be represented by an attorney of his own selection, we will only consider appellant’s first two points of error which contend the court erred in denying appellant the right to he represented in court by an attorney of his own selection and in failing to continue the case or to declare a mistrial to permit appellant to obtain an attorney to represent him.

It is true appellant did not make a motion for continuance but it is plainly shown that appellant was not familiar with the proper procedure to protect his rights. There is nothing shown in this record to show appellant knew he would not be represented by his attorney prior to the time of the hearing. His attorney was present when the case was called for trial and requested leave of the court to withdraw and suggested to the court that both parties be sworn and that each party present his case. The appellant in a manner objected to proceeding in that he stated he wanted the attorney to represent him.

Appellant had employed two attorneys to represent him. From the record here, we think it is obvious that appellant through no fault or neglect on his part except in failing to make a motion for continuance was deprived of having his attorney of his own selection to appear and represent him. His right to appear and be represented by counsel of his own choosing is valuable and its unwarranted denial is reversible error. Swartz v. Swartz, Tex.Civ.App., 76 S.W.2d 1071; Farmers’ Gas Co. v. Calame, Tex.Civ.App., 262 S.W. 546; Metts v. Waits, Tex.Civ.App., 286 S.W. 923; Maeding v. Maeding, Tex.Civ.App., 155 S.W.2d 991; Yellow Transit Co. v. Klaff, Tex.Civ.App., 145 S.W.2d 264.

Under the record herein we are of the opinion that the court should have continued the case until such time as the appellant could have been represented by an attorney of his own choice.

Judgment of the trial court is reversed and remanded that appellant may be represented by an attorney of his own choosing.


author: PHILLIPS, Justice.

text:
    AMERICAN SURETY COMPANY, Appellant, v. Paul M. McCARTY, Appellee.
    No. 11332.
    Court of Civil Appeals of Texas. Austin.
    Oct. 27, 1965.
    Rehearing Denied Nov. 17, 1965.

      Coleman Gay, Austin, for appellant.
    Byrd, Davis & Eisenberg, Tom H. Davis, Marion S. Roberts, Jr., Austin, for appellee.
   PHILLIPS, Justice.

This lawsuit was brought by appellee McCarty against the appellant Insurance Company by virtue of the Company’s refusal to pay a judgment granted appellant against one of the Company’s assureds, Doris Purser. The facts in the suit that resulted in the judgment are reported in this Court’s opinion styled McCarty v. Purser, 373 S.W.2d 293 and also in an opinion by the Supreme Court in 379 S.W.2d 291.

Trial was to the court and judgment was for appellee against the Company for $5000.-00.

We affirm the judgment of the trial court.

To recapitulate, briefly, the facts referred to in the opinions cited above, appellant was struck and injured by a U. S. Air Force pickup truck driven by a civilian Doris Purser who was accompanied in the truck at the time of the accident by a Lt. Col. Jewell to whom the pickup had been assigned by the Air Force. Those involved in this accident had been attending a party at the Officer’s Club on Bergstrom Air Force Base.

I.

Appellant is before us with five points of error the first two being briefed together, namely, the error of the court in holding that Doris Purser had the permission of the United States Government, which owned the Air Force pickup, to drive it, since Lt. Col. Jewell who supposedly gave such permission was forbidden by 5 United States Code Annotated, Section 78(c) (2) from so doing and, secondly, the error of the court in holding that appellant was liable for the judgment recovered by appellee against Doris Purser since under its policy there was no insurance coverage in her favor on a non-owned vehicle unless it was being used with the owner’s consent, and Lt. Col. Jewell, who purported to give her permission to drive it, was forbidden by law to do so.

We overrule these points.

The facts of this case present a novel situation to this Court and we are without the guidance of prior authority. Appellant strongly urges the decision of the Amarillo Court in Globe Indemnity Co. v. French, Tex.Civ.App., 382 S.W.2d 771, writ ref., n. r. e., as being the nearest authority in point. We do not believe that French is decisive here as there the driver of the car had no permission from the owner to drive the car and the Court correctly held the facts would not justify any implied permission.

Here we have a different situation. Lt. Col. Jewell was an officer in the Air Force and at the time of the accident was a Bomb Squadron Commander in the Strategic Air Command. As such, he had a Ford pickup specially equipped with a radio by which he could communicate with the base tower, command post and aircraft in the traffic pattern. This pickup was assigned to him on a 24-hour basis. He testified that he was responsible for the car and that it was he who determined who drove it. That he had the same control over the pickup as he would have had over his own private vehicle.

The evidence indicates that when Lt. Col. Jewell allowed Mrs. Purser to drive the pickup, they were proceeding to Mrs. Purser’s car that was parked nearby and that then Lt. Col. Jewell would have been on his way home. Mrs. Purser was driving the pickup under his supervision and direction. During the trip Lt. Col. Jewell was in the right front seat of the pickup and assisted Mrs. Purser in putting the vehicle in gear and immediately before the collision attempted to turn the vehicle and put on the brakes. During the course of the ride, he had directed Mrs. Purser where to drive and after the collision he stopped the engine of the pickup.

Mrs. Purser testified that she assumed that Lt. Col. Jewell had a right to say who drove the pickup and how they drove; that in the course of driving she would have obeyed any instructions or directions given by the Colonel.

There is no doubt but that the Government owned the pickup in that it had title to it. There is doubt however as to whether the provisions of the U.S.C.A. quoted above, would conclusively bar Lt. Col. Jewell from using the pickup as he did, however, we do not believe that this point is controlling nor do we base our decision thereon.

Col. Jewell, as a Bomb Squadron Commander using a car officially assigned to him on a SAC Base, was an arm of the government and certainly had the actual or real authority in fact to use the car as he did. Under these circumstances Mrs. Purser had no reason to believe that his authority was otherwise. Appellant is not before us in any better position than she.

This is not the usual omnibus clause case where the driver of a vehicle acts at her peril as to the provisions of the owner’s insurance policy but is a case where the assured has the right to believe that she is covered by her own policy of insurance.

Appellant in urging the above quoted portion of U.S.C.A. as being determinative of whether Mrs. Purser was driving with the owner’s permission cites a case where a workmen’s compensation claimant was presumed to know the law; a case where a receiver is charged with the knowledge of his authority and a case where members of the bar are presumed to know the law, however we do not believe that these are in point here. There the law itself is directed toward those charged with its knowledge, while in the case at bar, the law quoted is directed to the conduct of official government personnel with resepect to government vehicles and not to innocent third parties.

II.

Appellant’s third and fourth points of error briefed together are the error of the court in permitting the appellee to introduce the crucial testimony of Col. Jewell given in a related case to which appellant was not a party by attaching a transcript of such former testimony to written interrogatories and asking him if he would still make the same answers if those questions were again asked him; and, the error of the court in overruling appellant’s objections to the crucial testimony of Col. Jewell given at the trial of a related case in response to leading questions by appellee’s counsel.

We overrule these points.

Upon the trial of this case appellee sought to utilize certain testimony given by Col. Jewell at the trial of the personal injury suit in which Col. Jewell and Doris Purser were defendants. He accomplished this by having Col. Jewell testify by deposition that if the same questions were again asked him he would give the same answers.

The testimony in question related to his authority to let Doris Purser drive the Air Force pickup. This question was not involved in the personal injury suit but on cross-examination by a series of leading questions appellee secured testimony from Col. Jewell to the effect that he had the same control over the pickup that he had over his private vehicle. The leading questions in the personal injury suit were not objectionable on the ground that Col. Jewell was an adverse party.

In order to use the former testimony in the suit at bar appellee propounded the following written interrogatories to Col. Jewell:

“Q Attached hereto as Exhibit A is a copy of some of your testimony in Cause No. 11,932. Was such testimony true when you gave it?
A Yes.
Q Is such testimony still true?
A Yes.
Q Assuming that the identical questions contained in Exhibit A were asked you right now, would your answers be the same?
A Yes.”

Appellant duly filed written objections to each of the interrogatories above quoted on the grounds that each of them was leading in suggesting the manner in which the individual questions should be answered and that such method of examining a witness is wholly improper since the questions should be asked separately in order that opposing counsel would have the opportunity to object to each question before it was answered. Appellant also pointed out that such method would be proper only for impeachment purposes and that apparently appellee anticipated either that if he asked the questions he would get less favorable answers or he desired to show the witness that he could be impeached by his former testimony if he tried to testify differently. All objections were overruled.

The following questions and answers summarize the Colonel’s testimony in the personal injury suit on this point:

“Q What it boils down to, while it was assigned to you, you had the same control over it as you would over your own private vehicle, didn’t you?
A Usually yes:
Q On this occasion you did, didn’t you? You had the same say-so and same control over the pickup as you would have over your own private vehicle, didn’t you?
A Yes, sir.”

These were leading questions, however this case was not tried to a jury but to the court. In such a situation it is generally within the trial court’s discretion whether to allow leading questions and there is no abuse of any discretion here. See Nieto v. United States National Bank of Galveston, Tex.Civ.App., 384 S.W.2d 395, writ ref., n. r. e. Moreover, appellant has failed to show that any error in connection with the court’s allowing of the questions was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

III.

Appellant’s fifth point of error is that of the court in refusing to permit Sgt. William L. Grimes, a witness for appellant, to testify that at the time of the accident involved in this case all Air Force vehicles carried on the instrument panel a prominent decalcomania sticker with the heading “PENALTY FOR UNAUTHORIZED USE OF MOTOR VEHICLES” under which was a quotation of the statute forbidding such use.

We overrule this point.

Appellee objected to this testimony as it involved Air Force regulations, the best evidence of which was the regulations themselves. The regulations were never offered into evidence.

Sgt. Grimes testified that he was not at Bergstrom Air Force Base when the accident in question occurred, therefore he could not have had any personal knowledge as to whether or not the particular pickup in question actually had a decal on its dashboard at the time. Appellee’s objection was properly sustained.

We affirm the judgment of the trial court.

ARCHER, C. J., not participating.

      . The pertinent parts of 5 TJ.S.C.A., Sec. 78(c) (2) are as follows:
      “[See. 78(e) (2), 5 U.S.C.A., a limitation on appropriation of government funds.]
      (c) Unless otherwise specifically provided, no appropriation available for any department shall be expended — * * *
      (2) for the maintenance, operation, and repair of any Government-owned passenger motor vehicle or aircraft not used exclusively for official purposes; and ‘official purposes’ shall not include the transportation of officers and employees between their domiciles and places of employment, * * * except in cases of officers and employees engaged in field work the character of whose duties makes such transportation necessary and then only as to such latter cases when the same is approved by the head of the department concerned. Any officer or employee of the Government who willfully uses or authorizes the use of any Government-owned passenger motor vehicle * * *, for other than official purposes or otherwise violates the provisions of this paragraph shall be suspended from duty by the head of the department concerned, without compensation, for not less than one month, and shall be suspended for a longer period or summarily removed from office if circumstances warrant. * * * ”

      . Texas Employers Insurance Association v. Doss, Tex.Civ.App., 301 S.W.2d 473, writ ref., nre,

      . Baumgarten v. Frost, 143 Tex. 533, 186 S.W.2d 982, 159 A.L.R. 428.

      . E. H. Stafford Mfg. Co. v. Wichita School Supply Co., 118 Tex. 650, 23 S.W.2d 695.


author: WILSON, Justice.

text:
    COASTAL STATES GAS PRODUCING COMPANY, Appellant, v. Edmond E. SKORUPPA, Appellee.
    No. 4400.
    Court of Civil Appeals of Texas. Waco.
    Sept. 23, 1965.

      Richard A. Hall, Branscomb, Gary, Thomasson & Hall, Corpus Christi, for appellant.
    Reese D. Wade, Beeville, F. I. Gandy, Jr., Butler, Schraub, Schafer & Gandy, Corpus Christi, for appellee.
   WILSON, Justice.

Defendant contends plaintiff failed to establish the venue facts of agency and negligence under subdivision 9a of Art. 1995, Vernon’s Ann.Civ.St, in this non-jury venue matter. Defendant’s plea of privilege was overruled. We affirm.

Defendant Coastal States Gas Producing Co. owned a drilling rig on which a five-man crew was running casing. Plaintiff and other members of the casing crew were employed by Equipment Casing Co. Coastal States contracted with plaintiff’s employer to run casing into the well being drilled by defendant. Plaintiff’s employer furnished a pickup line, attached to the draw works of the drilling rig, by which sections of casing were raised vertically for insertion into the well hole. There is evidence to show that the draw works were operated by defendant’s employee, and that a stiff, rather than a flexible, pickup line, “which did not fit”, was improperly used to lift the casing. There is evidence that the casing slipped from this line and fell on plaintiff when the draw works were operated too fast.

Because there is evidence the foreman of Equipment Casing Company’s casing crew instructed and directed the operator of defendant’s drilling-rig draw works, defendant says the latter became a loaned servant of plaintiff’s employer, Equipment Casing Company under such authorities as Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94, and was therefore not a servant of defendant. There was evidence also, however, to the effect that the driller had control of the rig and draw works.

The foreman testified, “My authority wasn’t enough to slow him down,” and “He was working for Coastal States.” The foreman testified that if anything went wrong, he gave “instructions or a signal to hold it for a minute” to the draw-works operator, using hand signals to indicate stops, starts and rates of speed. He told him “to be very careful and explained to him about the line.” He told the operator “to slow it down.” Just before the casing fell the foreman testified he “looked up there and it was all right.” We find no direct evidence in the record that the foreman was authorized by his employer or by defendant to control the detailed activities of the operator of the draw works. The evidence is not such that it may be said as a matter of law, as defendant’s contention would require us to hold, that the operator was a special, or loaned servant of plaintiff’s employer.

The evidence raised the issues as to other essential venue facts. Affirmed.


author: COLEMAN, Justice.

text:
    OLSHAN LUMBER COMPANY, Appellant, v. Clift T. BULLARD et ux., Appellees.
    No. 14665.
    Court of Civil Appeals of Texas. Houston.
    Nov. 4, 1965.

      DeLange, Hudspeth, Pitman & Katz, M. Marvin Katz, Houston, for appellant.
    No brief filed for appellees.
   COLEMAN, Justice.

Olshan Lumber Company sued J. F. Dillard, a contractor, on a promissory note and joined as defendants C. T. Bullard and his wife, alleging their failure to pay to Olshan Lumber Company amounts owed by them to Dillard as required by the terms of a collateral assignment from Dillard to Olshan of the money to become due to Dillard from the Bullards by reason of a building contract. At the conclusion of the plaintiff’s case the trial court sustained a motion for judgment and rendered a judgment in favor of Olshan against Dillard on the note, and that Olshan take nothing against the Bullards. Dillard has not appealed. Olshan appeals only as to that part of the judgment favorable to the Bul-lards.

Dillard contracted to construct a house for the Bullards and, in order to secure credit for materials and supplies, he executed a note payable to Olshan in the sum of $3,000.00 together with a written collateral assignment of all of the money payable to him under the terms of the building contract. Notice in writing of this assignment was sent to and received by the Bul-lards.

On or about March 18, 1963, the Bul-lards made a partial payment as required by the contract bv delivering to Dillard a check in the sum of $3,000.00 payable to Dillard and Olshan. Dillard represented to the Bullards that this would pay Olshan all that he owed it. On this date Dillard owed Olshan for materials the sum of $1,-480.32. Dillard endorsed the check and gave it to Olshan. Olshan credited Dillard’s account with the $3,000.00 and then debited the account in the amount of $1,-519.68 as a cash payment. Olshan gave Dillard a check in that amount. This resulted in payment in full of the account and in a division of the $3,000.00 check in accordance with the interests of the named payees.

Thereafter Olshan furnished Dillard additional supplies and materials, debiting his account in the sum of $1,170.87. On March 22, 1963, the Bullards issued a check to Dillard in the sum of $1,000.00; on March 27, 1963, one in the sum of $3,000.00; and on April 21, 1963, a final check in.the sum of $975.50. These payments, together with sums previously paid, constituted payment in full as provided in the building contract. Olshan was not made a payee in either of these checks, and received none of the proceeds, apparently because the Bullards were under the impression that. Olshan had been paid in full and no longer had an interest in the proceeds of the contract. They made no inquiry of Olshan and had received no information from that company to that effect. There was testimony that Olshan would not have extended credit to Dillard except for the note and collateral assignment securing it.

The trial court filed certain findings of fact, but such action was inappropriate in this case since it was decided on a motion for judgment at the conclusion of the plaintiff’s evidence. In such a case the evidence should be viewed in the light most favorable to the plaintiff and unfavorable evidence should generally be discarded. Donaldson v. Oak Park Cemetery, Inc., Tex.Civ.App., 110 S.W.2d 119; Higgins v. Mossler Acceptance Corporation, Tex.Civ.App., 140 S.W.2d 532.

The general rules of law applicable to this case are set out in 4 Corbin on Contracts, Section 890, p. 577, where it is said:

“Before the obligor has been notified of the assignment he is justified in believing that his duty is still owed to his original obligee, the assignor. It follows that payment to the assignor, or the rendition of other required performance to him, operates as a discharge; and the assignee must look to the assignor for his remedy . . . The assignee could have prevented such change of position, and thereby protected his own rights, by giving notice of the assignment.

“After notice of the assignment has been given to the obligor, or knowledge thereof received by him in any manner, the assignor has no remaining power of release. The obligor must pay the as-signee.” and in Section 894, p. 589 (Ibid) :

“As to such discharges prior to notice, the rule applicable to the assignee is caveat emptor; after he has received notice, the obligor must get his discharge from the assignee only.

i}c i{< íj« i{c %

“A payment made by the obligor to his original creditor is fully operative in defense against an assignee if it was made in good faith without notice, actual or constructive, of the assignment. It is otherwise of payments made with such notice or with knowledge of facts sufficient to put the obligor on inquiry.”

This rule of law is supported by Texas cases to the same effect. South Texas Lumber Co. v. Concrete Construction Co., Tex.Civ.App., 139 S.W. 913; Fidelity & Deposit Co. of Maryland v. Kelsay Lumber Co., Tex.Com.App., 29 S.W.2d 1052; Rollison v. Hope, 18 Tex. 446; Carr & Howard Constr. Co. v. Panhandle State Bank, Tex.Civ.App., 347 S.W.2d 793, error ref., n. r. e.

It is clear that the Bullards were not entitled to rely on statements made to them by Dillard after they had received notice of the assignment to Olshan. By the terms of the assignment they were required to make all payments to Olshan. The evidence in this case does not establish payment of the note as security for which the assignment was given. The manner in which the payments made by the Bullards were divided between Olshan and Dillard was controlled by the contract between those parties. There is no testimony that it was agreed by them, or intended by them, that the $3,000.00 credited to Dillard’s account by Olshan would constitute full payment of the note, and, in view of the un-controverted evidence that as part of the same transaction Olshan gave Dillard its check for $1,519.68, an inference of payment in full could not be drawn from the credit notation. A collateral assignment continues in force until the debt for which it is security is paid in full. 4 Corbin on Contracts, § 881, pp. 541-543.

The judgment of the trial court that Olshan Lumber Company take nothing against Clift T. Bullard and wife, Virginia Bullard, is reversed and the cause is remanded for trial.


text:
    Virgil BETTS, Appellant, v. Arthur BETTS, Appellee.
    No. 7528.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1965.

      Potter, Gowdy & Kirk, Littlefield, for appellant.
    Cowsert & Bybee, Hereford, for appel-lee.
   CHAPMAN, Justice.

The subject matter of this case involves a contest of a will. Appellee, Arthur Betts, filed an application to probate the alleged last will and testament of his father, W. P. Betts, deceased, in the County Court of Deaf Smith County. His half-brother, appellant, Virgil Betts, another son of the deceased, filed the contest. The County Court admitted the will to probate and appointed appellee independent executor without bond, as the will provided.

Appellant appealed the case to the District Court. Appellee filed a motion for summary judgment, with supporting affidavits. Appellant filed an answer to the motion, with opposing affidavits. Following a hearing on the motion, the trial court granted Arthur Betts’ motion for summary judgment, admitted the will to probate and appointed appellee independent executor, as provided for in the will. Appeal is perfected from such judgment upon two points of error. The first point asserts error of the trial court in * * * “holding that contestant’s evidence did not raise a material issue of fact as to whether or not the will sought to be probated had been revoked.”

The contentions that the record raises a material issue of fact are based on the opposing affidavits of La Noe Kinkier and C. W. Dodson and wife, Emma Dodson. The objections to the merits of the opposing affidavits have their bases in Section (e) of Rule 166-A, Vernon’s Ann.Tex. Rules of Civil Procedure, where it is stated:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein.”

Mrs. Kinkier is the full sister to the contestant and the half-sister to the proponent. Before making the affidavit, she had specifically disclaimed all interests she might have been entitled to in the estate of her deceased father, her deceased mother and her deceased step-mother.

Her affidavit stated her father told her in 1939 he had willed * * * “the Shallo-water place to contestant in consideration of his working it nine years without pay and that he would not revoke the will; that in January 1963 he told her he had revoked contestant’s will because Virgil had refused to divorce his wife; and that in July 1963 he told her he had made a new will giving all his property to a sixteen-year old girl in Hereford and asked her what she would think if he married a girl of that age.”

No contention is made on appeal that any purported will made to Virgil should have been probated but only that the statement in the affidavit to the effect that testator had made a will leaving all his property to an unidentified sixteen-year old girl in Hereford he had given some consideration to marrying raised a fact issue as to whether the will which was probated had been revoked.

The will probated was dated the seventeenth day of June, 1963. The testator died on May 22, 1964, at the age of eighty-five. Supporting affidavits establish that the probated will was found in the deposit box of the deceased testator, W. P. Betts, in the First National Bank of Hereford following his death. There is no question raised as to the will having been signed, declared and published with all the solemnities required by law and no question is raised in the record as to the testamentary capacity of the deceased at the time the will was signed, declared and published.

We hold the naked statement in the affidavit of Mrs. Kinkier to the effect her father told her in July 1963 that he had made a new will giving all his property to an unidentified sixteen-year old girl in Hereford, unsupported by any other proof of revocation of the probated will constitutes no probative evidence of revocation.

Such affidavit does not make any statement showing personal knowledge on the part of the affiant of the existence of a will made subsequent to the probated will, nor is there any statement from which such inference could have been drawn such as to bring the affidavit within the requirement of Section (e) of Rule 166-A, V.A. T.R. The affidavit only shows personal knowledge of a legal conclusion of an eighty-four year old man that he had made a will leaving all his property to an unidentified sixteen-year old girl. The record is completely silent as to any such will having been made under the solemnities required by law for a will and the alleged statement of the deceased is simply a statement of a legal conclusion as distinguished from a statement of facts from which that conclusion should be deduced.

“ ‘An affidavit based on hearsay and statements contained in affidavits that are but mere conclusions of law are insufficient to warrant the overruling of a motion for summary judgment.’ ” Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832 (writ refused). Mere conclusions of law will not suffice. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

Our Supreme Court in McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 755, has said:

“When the declarations of an alleged testator consist, in effect, of the naked assertion that he has made a will, or that he has revoked one that is proved to have been executed, they are generally excluded; and we think such action is proper, for the reason that such declarations are merely statements of a legal conclusion and not a statement of the facts from which that conclusion should be deduced.”

In holding to the same effect the San Antonio Court of Civil Appeals in Sien v. Beitel, 289 S.W. 1057, 1059 (N.W.H.) considered the admissibility of a statement of a witness to the effect that she had conversations with the deceased in which he stated he * * * “ ‘had made a later will and had remembered my mother in the will.’ ” The court said:

“Such testimony was wholly incompetent for any purpose here. No satisfactory evidence had been offered to show the existence of any such will or the terms thereof, and no such general statement of declarations of a deceased person can be shown for the purpose of proving that the necessary requirements of so solemn an instrument as a will not accounted for, which the law so carefully required to be done under its formalities in its execution and then to be revoked only in the manner prescribed by the same law. Article 8285, R.S. 1925. It is not permissible to accomplish that purpose by the testimony of witnesses as to the naked declarations of the testator, unsupported, that he [had] made another will or revoked a particular will. Such statements would merely be statements of conclusions, without a statement of facts upon which such conclusions are based.”

In considering another will contest the Texarkana Court of Civil Appeals in Covington v. McDonald, Tex.Civ.App., 307 S.W.2d 335, has said:

“There was no testimony in the record of any one ever having seen a written revocation of the will in question—no written revocation was offered in evidence nor were the contents of any allegedly lost written revocation ever testified about or offered in evidence or shown to have been executed with the formalities prescribed by law. Nor was any subsequent will produced or offered in evidence. There is no evidence of probative force in the record that the will in question was ever revoked by any of the methods outlined in Section 63 of the Probate Code, supra.”

It is true that the burden of establishing that a will has not been revoked is placed upon the proponent of the will sought to be probated. Brackenridge v. Roberts, 114 Tex. 418, 270 S.W. 1001.

We have held that Mrs. Kinkler’s affidavit of a legal conclusion made by her father constituted no probative evidence of revocation. Therefore:

“The will having been established as having been duly executed by the testator, and having been produced, unattended by any circumstances which cast suspicion upon it, the presumption of the continuity of the status applies, and makes a prima facie case as against a revocation.” McElroy v. Phink, supra.

By brief, appellant admits “ * * * we can presume that the later will was destroyed by the testator as it was not found among his papers. * * *.”

The cases cited by contestant are not analogous under the facts to the instant case. We, therefore, hold that the record shows a discharge of the burden required of proponent in probating the will, part of which was that the will probated had never been revoked.

In his second point contestant asserts error of the court in appointing Arthur Betts independent executor without bond because * * * “By so doing, the Contestant was deprived of his right to have the matter submitted to a jury as to whether or not Arthur Betts was indebted to the estate, as alleged in the above quoted affidavit, and that the evidence of the Contestant raised a material issue of fact in this cause.”

Section 78 of the Texas Probate Code, V.T.C.S., sets out seven disqualifications for serving as an executor or an administrator of an estate. The only ones that could be applicable in disqualifying Arthur Betts are Subsections (d) and (g) of Section 78. He is a nonresident of Texas but the record shows he has appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused appointment to be filed with the court as stated in Section 78(d) of the Texas Probate Code in order to negative the non-resident disqualification. He is therefore not disqualified under that section. This leaves only Section 78(g) for consideration.

The affidavits of Mr. and Mrs. Dodson state they heard the deceased testator say in the early part of 1964 that he had loaned Arthur Betts $15,000 to help him make a payment on a farm in the Panhandle of Oklahoma and that they know he now denies such transaction was a loan, hut insists it was a gift. Mrs. Kinkler’s affidavit states her father told her he loaned Arthur Betts $10,000 to help him make a down payment on a farm in the Panhandle of Oklahoma, and that Arthur denies the transaction was a loan but insists it was a gift.

Before the Texas Probate Code became effective the courts had recognized a broad discretion on the part of a testator in naming an independent executor. If he was of sound mind and twenty-one years of age, he was entitled to letters testamentary. Journeay v. Shook, 105 Tex. 551, 152 S.W. 809. The question then presents itself as to whether the enactment of Section 78(g) permits the court to disqualify a named independent executor for the sole reason that such person has an interest in the estate. No such intention is expressed or implied in the Probate Code. Boyles v. Gresham, 158 Tex. 158, 309 S.W.2d 50. We therefore hold, as a matter of law, that an independent executor named in • a will is not unsuitable simply by virtue of his claim “as a beneficiary * * * under the will.” Boyles v. Gresham, supra. This fact is particularly applicable in this case for the reason that Arthur Betts is the sole and only devisee under the will of his father, which bequeaths * * * “all of my property, real, personal, and mixed, including all money that I may have at the time of my death, to be his in absolute title, to manage, sell or dispose of as he may determine best.”

Therefore, if appellee owes any money to the estate, he owes it to himself, subject to the rights of creditors. Contestant is not a creditor and has no interest under the will. It follows that no fact issue was raised by the record and that the court properly awarded a summary judgment to the effect that the will was entitled to probate and that Arthur Betts was entitled to appointment as independent executor of said will in accordance with its provisions.

      . This is the mil in which Mrs. Kinkler’s affidavit affirms * * “my father told me that he had made a new will giving all Ms property to a sixteen (16) year old girl in Hereford, and asked me what X would think about it if he married a girl that age.”


text:
    E. L. BROWN, Appellant, v. Jack DALE et al., Appellees.
    No. 7521.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 27, 1965.
    Rehearing Denied Nov. 1, 1965.

      Blanchard, Clifford, Gilkerson & Smith, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal from a take-nothing judgment based upon a jury verdict rendered for appellees, Jack Dale and Plains Radio Broadcasting Co., defendants below, in a common law damage suit filed by appellant, E. L. Brown.

Appellees were sued for damages sustained by appellant, Mr. Brown, when struck by a motor vehicle driven by Jack Dale while appellant was walking down the sidewalk lying adjacent to the driveway out of which Mr. Dale drove his vehicles onto the street from the driveway at his home. The accident occurred shortly after the noon hour on a clear day on December 27, 1962, as Mr. Dale was backing a Plains Radio Broadcasting Co. Falcon stationwagon out of his driveway while in the course and scope of his employment for said company.

The jury found in Special Issues Nos. 6 and 7 that immediately before the accident Mr. Brown failed to keep a proper lookout, which was a proximate cause of the accident in question. (All emphases herein are ours unless otherwise stated).

Issues of negligence found to be a proximate cause were also decided against ap-pellees and a take-nothing judgment was rendered. It is from such judgment appellant Brown has perfected this appeal upon eight points of error, the first two of which assert reversible error of the trial court in submitting Issues Nos. 6 and 10 and their respective proximate cause corollaries. He contends Issues Nos. 6 and 10 involve the same controlling fact issue and that a fatal, irreconcilable conflict exists in the answers to Issues Nos. 6 and 11.

Special Issue No. 10 asks the jury if, at the time and on the occasion in question, Mr. Brown failed to see that the crossing of the driveway could be made with safety. The jury answered affirmatively but in Issue No. 11 found such failure was not negligence.

In Special Issue No. 6 the jury was asked the question above stated and affirmatively found Mr. Brown failed to maintain a proper lookout immediately before the accident in question.

The first premise we wish to state is that it is the duty of the trial court to reconcile conflicts in the findings of the jury if reasonably possible from the issues in question and the facts pertaining thereto. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Indemnity Ins. Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830; Traywick v. Goodrich, Tex., 364 S.W.2d 190.

We believe the issues under discussion may be reconciled in that No. 6 inquires of that period immediately before the accident. It appears to be an all inclusive issue, apparently indicating a finding by the jury from the evidence in the case that appellant failed to see Mr. Dale as he opened the door to his car; slammed it; started the motor; looked out of his rear-view mirror; and looked both to the right and left before starting his reverse movement. Those acts show from Mr. Dale’s testimony to have been immediately before the accident. The jury under this record had the right to find that if appellant had been keeping a proper lookout toward the stationwagon in the driveway immediately before the accident, all those acts could certainly have been observed by him even though his left eye was opaque and his right eye was somewhat impaired in vision.

Special Issue No. 10 does not pinpoint the time to immediately before the accident but is less definite in its inquiry; simply placing it at the time and on the occasion in question. It is also noteworthy that the only objection made by appellant to the submission of Special Issue No. 6 is that there is no evidence to support it, or alternatively, insufficient evidence. In Casualty Underwriters v. Rhone, supra, our Supreme Court has said:

“It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled. This is elementary.”

The objection to Issue No. 10 in the charge was on the ground that it was a duplicate submission of a different shade and color of Special Issue No. 6. Even if appellant should be correct in that contention, which we find it unnecessary here to pass upon, no harm is shown under Rule 434, V.A.T.R. The answers to Special Issues Nos. 6 and 7 convict appellant of the failure to keep a proper lookout, which was a proximate cause of the accident and appellant’s resulting injuries, were ultimate and controlling issues and made the answers to Special Issues 10 and 11 immaterial.

Our courts appear to have settled the proposition that immaterial issues which are submitted and answered by the jury may be disregarded as surplusage. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; Robichaux v. Bordages, Tex.Civ.App., 48 S.W.2d 698 (writ refused); Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963 (writ refused); Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090. It requires no citation of authority to say that one properly submitted issue on contributory negligence with an affirmative answer as to both negligence and proximate case found against the plaintiff, when supported by probative evidence, makes other separate, distinct and unrelated contributory negligence questions immaterial where there is rendered a take-nothing judgment.

We, therefore, hold that the jury’s finding to the issues discussed may be reconciled and harmonized and that they constitute no irreconcilable conflict.

The next two points assert error of the court in rendering judgment for appellees for the reasons that there was no evidence or insufficient evidence of appellant’s failure to keep a proper lookout.

From the record here made “ * * * it becomes the duty of this court to weigh and consider that which supports the verdict and that which does not, and to set aside the judgment and remand the case if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it.” Prewitt v. Watson, Tex.Civ.App., 317 S.W.2d 954 (approved in Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815).

The testimony shows appellant had surgery on his eyes in 1962 but when his ophthalmologist, Dr. Anderson, was asked if Mr. Brown could see a person for 30 or 40 feet away, Dr. Anderson testified, “Oh, yes, sir.” It is undisputed that the accident happened shortly after 1:00 o’clock p. m. on December 27, 1962, and that it was a mild, clear day. Appellant testified he could see down the sidewalk 40 to 50 feet and though he had some stiffness in his neck he had never had any treatment on it and he could move it from side to side; that he had seen Mr. Dale’s car in his driveway a lot of times and knew he came home to lunch; that he knew anyone parked in a driveway is liable to back out at any time; and that he could have seen Mr. Dale if he had been looking that way.

“Q. You could have seen Mr. Dale had you kept your eyes toward that— from time to time, you could have seen him as he came out of his door, could you not, sir?
A. If he had come out the door and crawled in. his car there, no doubt if I had looked that way, I would have seen him, but I was watching my walking and I didn’t see any occasion to turn my head to look.”

The testimony shows Mr. Dale came out of his house; walked down two steps to the ground level toward his car; opened the door to his car; slammed it; turned on the ignition; looked out his rear-view mirror; then looked both to the right and left before backing out and had backed between 5 and 8 feet before he felt the impact of the vehicle against Mr. Brown. The testimony shows the driveway was 10 feet, 6 inches wide.

Under the rule announced in the quote from Prewitt v. Watson, supra, the authorities there cited, and the approval of that statement by our Supreme Court in 159 Tex. 305, 320 S.W.2d 815, we hold the jury’s answer to Special Issues Nos. 6 and 7 to the effect that appellant was guilty of negligence, which was a proximate cause of the accident, was not against the great weight and preponderance of the evidence but that the evidence preponderated in favor of the answers. In view of this holding it is, of course, unnecessary to discuss the no-evidence point.

The next point of error urged by appellant is that the court erred in permitting testimony by Mrs. Dale concerning statements made by Mrs. Brown to the effect that her husband was not supposed to be out on the street and that she asked him to wait and she would go with him.

We are unable to see where appellant has sustained the burden of proving any harm in this case even if it could be said, arguendo only, that the testimony was not admissible. It is unnecessary for us to pass on whether the statement was within the res gestae rule or not because it is testimony having nothing whatever to do with the question of proper lookout. Mrs. Brown’s statement had to do with the special issues of whether her husband was negligent in walking unattended and those issues are not involved in this appeal. Additionally, the jury answered in Special Issue No. 8 that he was not negligent in walking unattended, so that issue and its corollary on proximate cause could not have influenced the jury’s answer to Special Issue No. 6 on improper lookout and would, therefore, be harmless. Rule 434, V.A.T.R. Furthermore, the testimony is merely cumulative of other and similar testimony in the record without objection. Mr. Dale testified that after Mr. Brown was taken to the clinic, Dr. Dunn made the statement, “I told that man to stay off the street.” When asked by counsel for appellant if he made such statement, Dr. Dunn said: “Well, I quite likely did, Mr. Counselor.”

Our courts have repeatedly held that a reversal is not justified because of the admission of improper testimony when testimony to the same effect has been permitted without objection. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104; Texas & P. Ry. Co. v. Crown, Tex.Civ.App., 220 S.W.2d 294, 299 (N.R.E.); Steinke v. Schmid, Tex.Civ.App., 223 S.W.2d 955, 957 (N.W.H.); City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488, 494 (N.W.H.); Medina Electric Cooperative, Inc. v. Ball, Tex.Civ.App., 368 S.W.2d 227 (N.W.H.).

The last point presents a contention that reversible error was committed by the trial court because of his refusal to permit appellant’s counsel to exhibit before the jury as they argued the case a chart showing appellant’s summary of damages upon which counsel had placed their theory of the amounts the jury should find for present and future physical pain and suffering and for mental pain present and future.

Even if it could be said that the court committed reversible error in such refusal, which we find unnecessary to pass upon here, it was harmless in this case because of the finding by the jury of contributory negligence on the part of appellant, which was a proximate cause of the accident. Rule 434, V.A.T.R.

Even if the jury had found for appellant an amount in excess of that contended for in the chart it would have availed him nothing in view of the answers made by the jury in Special Issues Nos. 6 and 7.

Finding no reversible errors in the record, the judgment of the trial court is in all things affirmed.