author: ARCHER, Chief Justice.

text:
    The STATE of Texas, the Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen and Brotherhood of Railroad Trainmen, Appellants, v. SOUTHERN PACIFIC COMPANY et al., Appellees.
    No. 11330.
    Court of Civil Appeals of Texas. Austin.
    June 9, 1965.
    Rehearing Denied June 30, 1965.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., Edward R. Moffett, Robert W. Norris, Asst. Attys. Gen., Proctor & Jones, Les Proctor, Robert D. Jones, Austin, for appellants.
    Baker, Botts, Shepherd & Coates, Tom M. Davis, Houston, Walter Caven, Austin, for appellees.
   ARCHER, Chief Justice.

The Attorney General of Texas brought suit in behalf of appellant State of Texas against appellee Southern Pacific Company, alleging that said company was failing to observe the terms and provisions of Article 6380, Vernon’s Ann.Civ.St, by operating freight, gravel and construction trains without all of the five crew members required by said Article 6380 to be present and by operating light engines without all of the three crew members required by said Article 6380 to be present. Appellant State of Texas sought declaratory judgment that said Article 6380 applied to appellee company in its above mentioned operations and further sought injunctive relief, restraining said appellee company from violating said Article 6380 in its above mentioned operations in the future. After answering ap-pellee company filed its motion for summary judgment to which motion appellant State of Texas filed its answer in opposition. Ap-pellee company was joined in its posture by appellee Railroad Company Intervenors. Appellant State of Texas was joined in its position by appellant Railroad Brotherhoods intervenors, who also filed an answer, supported by affidavits, in opposition to ap-pellees’ motion for summary judgment and which said answer with supporting affidavits was adopted by the appellant State of Texas. Upon hearing, the court granted appellees’ motion for summary judgment.

The appeal is founded on three points and are as follows:

“FIRST POINT OF ERROR: The error of the court in holding that the pleadings, stipulations of fact and the affidavits show an absence of genuine issue of any material fact.
SECOND POINT OF ERROR: The error of the court in holding that the doctrines of res judicata and estoppel by judgment apply to this case.
THIRD POINT OF ERROR: The error of the court in holding that Public Law 88-108 preempts Article 6380 V.A.C.S.”

Appellants say that Article 6380 was passed as a safety measure to protect crew, public and property by requiring the presence of an engineer, fireman, conductor and two brakemen aboard all freight trains; that proper and safe operation of the modern diesel freight train, which averages five engines and many cars, requires the presence of all crew members named in the article, and that the issue of safety should be ascertained upon a trial of this cause on its merits; that justiciable issues of fact were raised and can be supported in fact, and that summary judgment should not have been entered.

Appellants contend that the holding of the court in the case of Railroad Commission v. Texas and New Orleans Railroad Company, Tex.Civ.App., 42 S.W.2d 1091, er. ref., is not res judicata of the issues in this case, and the State is not estopped to bring this suit because the identity of the causes of action is indispensable to the operation of the judgment as a bar to a subsequent suit between the parties, and cite Rushing v. Mayfield Co., Tex.Civ.App., 104 S.W.2d 619, reversed on other grounds.

Appellants seek to distinguish the T. & N.O. case, supra, by the wording of the prayer in seeking relief as to operations of motor cars and motor trains, and the use of the phrase passenger motor trains, and motor cars, and the issue and question of a full blown freight train pulled by a motor engine, and as a consequence there is no identity of the causes of action.

Appellants’ third point is directed to the holding by the trial court that Public Law 88-108 preempts Article 6380, and claim that Congress did not intend to preempt the field, and that if Congress had intended preemption, such must be clearly manifested, citing H. P. Welch Company v. State of New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500 and Cloverleaf Butter Company v. Patterson, 315 U.S. 148, 828, 62 S. Ct. 491, 86 L.Ed. 754, 1223.

Appellants contend that the Commerce Clause of itself does not displace State Police Power over local incidents of interstate commerce, citing a number of cases, the latest is Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330.

Appellants cite the case of Chicago, R. I. & Pac. Ry. Co. v. State of Arkansas, 219 U.S. 453, 31 S.Ct. 275, 55 L.Ed. 290, as construing a full crew law similar to that of Texas.

Appellees by counterpoints claim that Article 6380 does not apply to diesel-electric locomotives or trains handled thereby, and that the Federal Government has preempted the field and that the State of Texas has no right to regulate the size or consist of engines or train crews engaged in interstate commerce.

The history of Article 6380 and the Attorney General’s opinions incident thereto are set forth in the opinion of this Court in Railroad Commission v. Texas & New Orleans R. Co., Tex.Civ.App., 42 S.W.2d 1091, er. ref., and we will not restate such, but believe that the issues which plaintiff seeks to have determined herein have been litigated to a conclusion and finally settled adverse to plaintiff’s present contentions.

Then too, in Railroad Commission of Texas v. Chicago, Rock Island and Pacific Railroad Company, Tex.Civ.App., 291 S.W.2d 796, er. ref., this Court had before it the issue of whether Article 6380 is applicable to the operation of diesel propelled Budd cars, and whether that statute imposes any duty or obligation upon the appellee with respect to who shall man such car in its operation, and held Article 6380, the Full Crew Law, did not apply to train operations in issue.

We have carefully reviewed the two cases above and the holdings therein as well as the reasonings and believe that such are correct.

These cases have been cited with approval in Western Pac. R. Co. v. State, 69 Nev. 66, 241 P.2d 846, 45 A.L.R.2d 429, Bressler v. Chicago & N. W. Ry. Co., 152 Neb. 732, 42 N.W.2d 617.

Since we believe that the issues herein have been correctly resolved we do not discuss in detail the question of the preemption of the field by the Federal Government or if the State of Texas has no right to regulate the size or consist of engine or train crews engaged in interstate commerce, but do believe that such has been done.

Public Law 88-108 provides in Section 3 that:

“ * * * The arbitration board shall make a decision, pursuant to the procedures hereinafter set forth, as to what disposition shall be made of those portions of the carriers’ notices of November 2, 1959, identified as ‘Use of Firemen (Helpers) on Other Than Steam Power’ and ‘Consist of Road and Yard Crews’ and that portion of the organizations’ notices of September 7, 1960, identified as ‘Minimum Safe Crew Consist’ and implementing proposals pertaining thereto. The arbitration board shall incorporate in such decision any matters on which it finds the parties were in agreement, and shall, in making its award, give due consideration to those matters on which the parties were in tentative agreement. Such award shall be binding on both the carrier and organization parties to the dispute and shall constitute a complete and final disposition of the aforesaid issues covered by the decision of the board of arbitration.”

In Division 700, Brotherhood of Locomotive Engineers v. National Railway Labor Arbitration Board No. 282, D.C., 223 F.Supp. 377, it was stated:

“It is reasonable to assume, without deciding, that the Congress was invoking its power over interstate commerce and specifically over public utilities engaged in interstate commerce. Just as it has assumed power to regulate rates, through regulatory commissions, so it is now assuming power in this case to regulate working conditions, wages and similar matters through an Arbitration Board. An emergency may not create power, but it may give rise to an occasion to exercise a power that has been dormant or latent.”

Award No. 282 rendered by the Arbitration Board under Public Law 88-108 was sustained in 225 F.Supp. 11, and this decision was affirmed in Brotherhood of Locomotive Firemen and Enginemen v. Certain Carriers, etc., 118 U.S.App.D.C. 100, 331 F.2d 1020, cert. den., 377 U.S. 918, 84 S.Ct. 1181, 12 L.Ed.2d 187.

In Pennsylvania Ry. Co. v. Public Service Comm. of Pennsylvania, 250 U.S. 566, 40 S.Ct. 36, 64 L.Ed. 1142, a Pennsylvania statute, requiring the last car of every train to be equipped with a platform, guard rails, and steps, was held inapplicable to.trains in interstate commerce. Mr. Justice Holmes stated:

“ * * * when the United States has exercised its exclusive powers over interstate commerce so far as to take possession of the field, the States no more can supplement its requirements than they can annul them.”

In Chicago Rock Island & Pacific Railroad Company v. Hardin, D.C., 239 F.Supp. 1, (March 5, 1965) a three-judge Federal Court held that Public Law 88-108 had preempted the field so as to nullify an Arkansas full-crew law.

The judgment of the trial court is affirmed.

Associate Justice Hughes limits his concurrence to the holding that the Federal Government has so acted as to suspend the provisions of Art. 6380 here involved.

Affirmed.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Sadie BROOKS, Appellant, v. Altha HEXT, Appellee.
    No. 6743.
    Court of Civil Appeals of Texas. Beaumont.
    May 6, 1965.
    Motion for Rehearing Overruled June 30, 1965.

      Joe Bob Golden, Jasper, Louis Dugas, Jr., Orange, for appellant.
    Sexton & Owens, Orange, for appellee.
   PARKER, Justice.

Appellee Altha Hext made application to the County Court of Orange County to probate the alleged will of Mahala Helm, deceased. Such application was contested by Sadie Brooks, appellant. An order was entered admitting the will to probate. Contestant tried to perfect an appeal to the 128th District Court of Orange County. The 128th District Court dismissed the appeal upon motion of appellee Altha Hext. Sadie Brooks, appellant, brings this appeal complaining of the action of the 128th District Court.

In the District Court of Orange County, Texas, the appeal was dismissed by an order signed and entered the 21st day of April, 1964, which dismissal was based upon ap-pellee’s plea to the jurisdiction and motion to dismiss alleging the appeal was not perfected because: (1) The appeal bond was not filed within IS days from the date of rendition of the decision, order, decree or judgment appealed from as provided in Rule 333, Texas Rules of Civil Procedure. (2) The transcript was filed with the Clerk of the District Court of Orange County, Texas, on February 20, 1964, which was not within the 30 days provided by Rule 336 within which to file same from the date of rendition of the decision, order, decree or judgment of the County Court appealed from. (3) It was not until February 19, 1964, that appellant filed with the County Clerk a written direction as to the matters deemed necessary to a review of the County court ruling appealed from to be included in a transcript with counsel for appellee not being furnished with a copy of such direction, which appellee urges is not in compliance with Rule 336, T.R.C.P.

T.R.C.P. 306a states:

“In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. * * * In the event the date of signing of a judgment or order is not shown therein as required above, then the date of rendition shall be otherwise shown of record.”

Limiting ourselves to the record, the date upon which the written judgment was signed by the County Court trial judge is shown initially as follows:

20th
“SIGNED and ENTERED this the 22nd day of January, 1964.
/s,/ Sid J. Caillavet_
Judge Presiding
“APPROVED AS TO FORM:
“Sexton & Owens
“Attorneys for Proponent
“BY /s/ Paul R. Owens_
Paul R. Owens
“_/s/ Louis Dugas, Jr._
Louis Dugas, Jr., Attorney for Contestant”

The correct date of the judgment is otherwise shown of record if authorized by 306a, T.R.C.P., by the following: On the 4th of February, 1964, Sid J. Caillavet, as County Judge of Orange County, Texas, in an order signed by him on that date fixed the amount of the appeal bond in this language:

“This the 4th day of Feb. , 1964, Sadie Brooks having duly requested that the amount of the appeal bond be fixed in the above entitled and numbered matter to enable her to appeal from that certain order rendered therein on the 22nd day of January, 1964, wherein the alleged will of Mahala Helm, deceased, was admitted to probate, it is ordered by the court and also the judge thereof that such amount be and it is hereby fixed at $ 500.0Q .
/s/ Sid J. Caillavet_
County Judge of Orange County, Texas”

In accordance with such order, appeal bond in said sum was made by Sadie Brooks as principal and two sureties, which bond was approved by Sadie Stephens, County Clerk of Orange County, Texas, on February 5, 1964.

The same trial judge signed the following order in said cause, to-wit:

“WHEREAS the above numbered and entitled estate pending in the County Court of Orange County, Texas, sitting in matters of probate, on the 22nd day of January, 1964, an order was rendered admitting the alleged will of Mahala Helm, deceased, to probate from which an appeal has been taken to the District Court, and it appearing to the court that the original papers should be sent to the District Court in connection with the transcript.
“It is therefore ORDERED, ADJUDGED and DECREED that the original papers in the above cause be transmitted to the District Clerk for safe keeping and return thereof after said cause is disposed of.
/s/ Sid J. Caillavet_
Sid J. Caillavet, Judge of County Court.”

The order itself is undated but it was filed on February 19, 1964, by Sadie Stephens, county clerk of Orange County, Texas. Accordingly, the entire record was forwarded to the district court, leaving nothing to justify any complaint by appellee in connection with the transcript. Such original papers were not forwarded and filed with the district clerk of Orange County until February 20, 1964. This would comply with Rule 336 if the date of the judgment in the county court was January 22nd, but would be one day late if the date remaining in the judgment, January 20th, is correct.

From appellant’s bill of exceptions in the district court of Orange County on the hearing to dismiss, a deputy county clerk of Orange County testified that on January 22, 1964, for the first time the order admitting the will to probate was presented to her for filing; that the judgment at that time showed it was entered and signed by the county judge of Orange County on January 22, 1964, and that the date was in the handwriting of the judge; that on January 22, 1964, that she, believing the date of trial was the proper date, on her sole initiative without authority from the judge, did change the date the judgment was signed and entered from January 22, 1964, to the 20th day of January, 1964; that although she received such judgment for the first time on the 22nd of January, she certified it was filed on the 20th day of January. We cannot consider her testimony in this court.

In the state of the record at the present time appellant did not file her appeal bond within IS days after the signing and entering of the order by the judge admitting the will to probate as stated in such order. Further, the appellant did not file within 30 days after January 20th, 1964, the transcript with the district court of Orange County, Texas.

It would seem that manifest injustice has resulted to appellant if there is an error in the date of entry of the judgment which was a “clerical error” and not a “judicial error” and no reason exists why such a mistake in date could not have been corrected nunc pro tunc to show date of entry. T.R.C.P., 316; Mahaley v. Jenkins, Tex.Civ.App.1963, 369 S.W.2d 847; Williams v. Pitts (1952) 151 Tex. 408, 141 Tex. 408, 251 S.W.2d 148. Also see Ex parte Godike, Tex., 355 S.W.2d 701 (1962).

Appellant, by a proper application to the county judge of Orange County could have had corrected the date of the judgment entered which order of correction could have been forwarded by supplemental transcript for consideration. In the state of the record before us, each and all of appellant’s points of error are overruled, they being as follows:

1. The District Court erred in granting Appellee’s motion to dismiss the appeal from the County Court on the ground that Appellant’s designation was not filed in accordance with Rule 336 of the Texas Rules of Civil Procedure because such provision in Rule 336 is not jurisdictional and does not warrant a dismissal as a matter of law.
2. The District Court erred in granting Appellee’s motion to dismiss the appeal from the County Court on the ground that Appellant failed to file an appeal bond within 15 days after rendition of the order admitting the will to probate.
3. The District Court erred in granting Appellee’s motion to dismiss the appeal from the County Court on the ground that Appellant failed to file the transcript with the District Clerk within 30 days after rendition of the order admitting the will to probate.

The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    Henry De Luce SNYDER, Individually, and as Next Friend of Dierdre Snyder, Appellant, v. Louis Glynn JONES, Appellee.
    No. 101.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 2, 1965.
    Rehearing Denied June 29, 1965.

      Francis I. Gandy, Jr., of Butler, Schraub, Schafer & Gandy, Corpus Christi, for appellant.
    M. W. Meredith, Jr., of Keys, Russell, Watson & Seaman, Corpus Christi, for ap-pellee.
   NYE, Justice.

This is a summary judgment case. Dierdre Snyder, a minor, sustained personal injuries when an automobile in which she was riding as a guest was involved in a one-car upset. The appellant, the father of Dierdre Snyder, individually and as next friend for his daughter, brought suit for damages, and alleged gross negligence on the part of the appellee, the owner of the car, in entrusting a known defective automobile to his daughter Diana Jones, a minor who was driving the vehicle at the time of the accident. The trial court granted the defendant’s motion for summary judgment and entered judgment that plaintiff take nothing by his suit. From this judgment appellant has perfected his appeal.

The appellant has predicated his appeal on only one point, contending that the trial court erred in sustaining defendant’s motion for summary judgment, thereby rejecting appellant’s contention claimed to be supported by pleadings, affidavits and depositions that the entrustment by appellee to his minor daughter of a motor vehicle known by the appellee to have been in a defective condition was gross negligence and the proximate cause of Dierdre Snyder’s injuries.

The provisions of the “Texas Guest Statutes” provide that a guest will have no action for injuries or loss against an automobile owner or operator unless an accident “ * * * shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. * * * ” Art. 6701b Texas Ann.Rev.Civ.St. This has the same meaning as the term “gross negligence.” Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; Rowan v. Allen, 1940, 134 Tex. 215, 134 S.W.2d 1022.

The trial court that hears the motion for summary judgment must determine if there are any issues of fact to be tried and is to accept as true all evidence of the party opposing the motion for summary judgment, which tends to support such party’s contention and to give him the benefit of every reasonable inference which can be drawn in favor of his position. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, Sup.Ct.1963. All doubts as to existence of genuine issue of the material facts must be resolved against the party moving for a summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929 (1952).

The trial court heard the motion for summary judgment on March 6, 1964. The trial judge asked for briefs and on March 13, 1964, announced that he had granted defendant’s (appellee’s) motion for summary judgment. Before entry of written judgment, plaintiff (appellant) moved for permission to file an affidavit of Henry Snyder, dated March 17th, and for the court to set aside its previous ruling. The Court, on April 4th, allowed the affidavit of Snyder to be filed and then allowed defendant (appellee) to take Snyder’s deposition and ruled that no other evidence would be received. On April 20th, the date of the hearing, after one postponement at request of plaintiff, the plaintiff tendered for filing an additional affidavit * * * that of Dierdre Snyder. The trial court refused to allow the filing of such affidavit, to which plaintiff excepted. The trial court then again sustained defendant’s motion for summary judgment and entered its order to that effect. Appellant does not bring forward this assignment of error concerning the failure to grant leave to file Dierdre’s late affidavit and, therefore, it is waived. Rule 374 and Rule 418, Texas Rules of Civil Procedure. Stroud v. Jones, Tex.Civ.App., 295 S.W.2d 491, ref., n. r. e. (1956). The rule on summary judgments requires that the moving party give the opposition ten-day notice of the hearing. The adverse party is allowed up until the day before the hearing to serve opposing affidavits. Rule 166a, T.R.C.P. Here, the time had passed. The trial court had allowed one late affidavit and refused a still later one. This was not an abuse of discretion. Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493 (1957 ref., n. r. e.). We have, however, reviewed Dierdre’s testimony, and we do not find any material conflict in the two girls’ versions of the happening of the accident that would affect the outcome of this case.

Appellee owned a 1960 Chevrolet which was some nine months old at the time of the accident and had been driven a little more than 26,000 miles. He loaned the vehicle to his daughter Diana one Sunday afternoon in April of 1961. She picked up her friend Dierdre for the purpose of riding around and to visit a cousin. Neither girl could recall exactly what happened that caused the accident. However, from the deposition and affidavits received by the trial court, the facts viewed most favorably to the appellant, were these:

Diana Jones, the driver, was just under seventeen at the time of the accident; she had had a driver’s license only about one month but had learned to drive about two years previously. She had driven this car before and had not experienced any previous difficulty. Her father had given her permission to drive. A short distance from her home she stopped at a stop light, commented on the fact that she wasn’t feeling too well, took a sip of coke from Dierdre, and handed it back to her. They drove on about a block on the inside lane of a four-lane street when all of a sudden the car veered to the right, ran up a guy wire and upset, injuring Dierdre. Diana did not remember applying the brakes and did not remember any reason why the brakes would have been applied.

Appellee Jones was unhappy with the car. He felt that he had more trouble with it than he should have had. He stated that during the period he owned it he had trouble with the steering, the brakes and with the rear end being out of line. He did not discover that the rear end was out of line until three or four months prior to the accident when he noticed that the rear tires were wearing unevenly. The car had 18,000 miles on it at that time. Jones complained to General Motors with regard to the rear end alignment, but they refused to fix the rear end alignment under the warranty. He stated that he had difficulty with the steering, in that at times the power steering would seem to steer the same as a car with conventional steering. It never had a failure of the power steering, or steered as hard as a car with the power completely gone. The car never turned itself without the steering wheel being turned and when turned, the car always responded. He stated that on some occasions when the brakes were applied, he found it necessary to pump them once or twice. On other occasions the car pulled over to one side. He testified that he had added power steering and brake fluid to the car and that the steering and brakes had been adjusted or repaired.

Appellant stated in his affidavit and deposition that appellee had admitted to him that on one or more occasions on trips to West Texas the car had veered to the left or right without being turned while driving down the highway, and he might be driving along with one hand and had to grab with both hands. There was no evidence as to how long ago had been the last occurrence of such veering prior to the accident.

The appellant urges us to consider the statement of appellant Snyder. He stated in his affidavit that “the general tenor of Jones’ conversation was, that Jones had the ‘opinion’ or ‘felt’ that either the steering or the brakes had caused the accident and that it was his fault.” This constitutes inadmissible conclusions of fact and law. 2 McCormick & Ray, Texas Law of Evidence, § 1398. The affidavit shows that Snyder is summarizing and drawing conclusions as to what Jones had said, rather than stating what he did say. Even if Snyder was quoting Jones as nearly as practicable, Jones’ “feeling” or “opinion” as to what caused the accident after it had happened, did not in itself show any knowledge on Jones’ part of a dangerous defect in the car before the accident. 2 McCormick & Ray, Texas Law of Evidence, § 1399.

Plaintiff’s cause of action is based upon three allegations: (1) that Jones knew his car had a defect which made its operation dangerous; (2) that his entrustment of the car to his daughter constituted gross negligence; and (3) that the defect caused the accident. The only question before this Court is whether sufficient evidence is in the record to raise each of those three issues. First we consider whether or not Jones knew that his car had a dangerous defect. Considering the evidence most favorable to the appellant we find that the appellee admitted difficulties with the steering and braking systems over the period of ownership of the car on one or more occasions. On several trips to West Texas the car veered to the left or right without being turned while Jones was driving down the highway. There was no proof as to how long before the accident did the last such occurrence take place. Appellant admits that the appellee told him that he had had the steering checked after each occurrence. Jones testified that he had recurring trouble over the period of time that he had the car with the power steering and the brakes, but not constant trouble. He stated that he had had the brakes adjusted and repaired when he had the difficulties. There was no evidence as to whether Jones had knowledge of a continuing existing dangerous defect to the vehicle just prior to the accident.

Second: Was it gross negligence for Jones to let his daughter take the car? The definition of gross negligence has been applied as meaning “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” Citing Missouri Pacific Railroad Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 1888; again the Supreme Court stated “that the quality of negligence necessary to support a recovery under the guest statute is the same as that necessary to support a recovery of exemplary damages.” Schiller v. Rice, supra.

Assuming for the sake of argument that there was some evidence, which we do not believe there was, that Jones knew that his car had a dangerous defect at the time he permitted his daughter to use it * * *, then, by giving Jones the benefit to which he is entitled under the protection afforded to him by the Legislature in the “guest statute” * * * did he act with “heedlessness” or with “reckless disregard of the rights” of his daughter and her friend? Art. 6701d, T.R.C.S. Under these facts, was an issue raised, whereby the father, by giving permission to his daughter to use the car for herself and her guest, manifested “that entire want of care which would raise the belief that ‘he was consciously indifferent to their welfare?’” We think not. Rowan v. Allen, supra. The conclusion reached from cases cited in 4 Blashfield, Cyclopedia of Automobile Law and Practice, § 2333, is:

“Under guest statutes basing liability on reckless disregard of others’ rights, it is even held that no basis of liability is made out by reason of the operation of a defectively equipped automobile although the driver has knowledge of such defective condition.
“One driving an automobile when it is slightly out of repair is not chargeable with wanton and willful misconduct so as to permit recovery by a guest if a defect in an unexpected or unknown manner causes an accident. Moreover, the mere failure of a host to make repairs, or the operation of a motor vehicle with a tire which has been damaged and later repaired, or the mere fact that a tire blows out does not alone show willful or wanton misconduct.”

See also 8 Am.Jur.2d § 519; 96 A.L.R. 1479 et seq.; 23 A.L.R.2d 539 et seq.; Lee v. Lott, 50 Ga.App. 39, 177 S.E. 92 (1934); Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303 (1934).

Third: Was the defect a proximate cause of the collision? Diana, the driver, stated that she did not know what caused the accident. There was evidence that the ear suddenly veered to the right hand side of the street and went up the guy wire and turned over. There was evidence that on occasion the brakes had pulled the car to the right or to the left. However, they had been repaired and adjusted after such abnormal occasion. Neither girl remembers the brakes being applied or any reason for the brakes to have been applied. There was no evidence that they had been applied immediately prior to the accident. The ear steering had given the appellee trouble from time to time, steering like a conventional car without power steering, but the steering had been checked and fluid added. Appellee Jones denied that the car had ever “veered” without the steering wheel being turned, but appellant stated that appellee had told him that it had done so “in West Texas” on several occasions. Even if such statement is taken as true, as we must do on review of a motion for summary judgment, there was no evidence that the car was in this defective condition just prior to the accident in question, or that appellee knew of any such condition, if in fact such defective condition existed. Appellee stated that he had this condition checked by a garage after it happened.

The appellant cites and refers us to only three cases. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017; Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820, 1958; and Goff v. Lubbock Bldg. Products, Tex.Civ. App., 267 S.W.2d 201, 1953, ref., n. r. e., which we believe are not in point and can be distinguished by the facts.

There may have been a possibility or suspicion that a defect in the car belonging to appellee may have existed and may have been a possible cause of the accident. However, where the proof, as here, only raises a mere surmise or suspicion of existence of a fact sought to be established, it would not be sufficient to raise a jury issue and would not be sufficient to defeat a motion for summary judgment. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1898. In any event, we hold that the summary judgment evidence was not sufficient to raise the issue that there was a conscious knowledge by the father of the character of any continuing defect in the vehicle which would constitute gross negligence in entrusting the vehicle to his daughter, or that any such defect was a proximate cause of the accident in question.

Appellant’s point is overruled.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. F. H. WALDON, Appellee.
    No. 91.
    Court of Civil Appeals of Texas. Tyler.
    June 3, 1965.
    Rehearing Denied July 8, 1965.

      Jack W. Flock, Ramey, Brelsford, Hull & Flock, Tyler, Ramey, Ramey & Neal, Sulphur Springs, for appellant.
    Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellee.
   DUNAGAN, Chief Justice.

This is a workman’s compensation suit brought in the District Court of Hopkins County, Texas, by appellee, F. H. Waldon, against appellant, Texas Employers’ Insurance Association, to recover workman compensation benefits for accidental injury while working for the subscriber-insured, M. J. Delaney Company.

A trial by jury resulted in a verdict upon which the court rendered judgment for ap-pellee for total-permanent benefits. Appellant’s amended motion for a new trial was overruled and this appeal therefrom has been timely perfected.

By its Point No. 1 appellant complains that “The court erred in refusing to set aside the verdict of the jury since it appeared that the jury was guilty of misconduct which amounted to material error in that during its deliberations, the jurors discussed, considered and were influenced by the consideration of the legal effect of their answers to the Special Issues submitted rather than a consideration of the competent evidence before them.”

The appellant further complains by its Point of Error No. 2 that “The court erred in refusing to set aside the verdict of the jury since it appeared that the jury was guilty of misconduct which amounted to material error in that during its deliberations, a juror injected new and additional evidence relating his personal knowledge of the manner in which drillers’ reports were kept.”

Points of Error Nos. 1 and 2, being complaints for alleged jury misconduct, will be discussed together.

In its amended motion for a new trial, appellant alleged that the jury was guilty of misconduct while considering its verdict, and the affidavits of two jurors were attached to said motion. The trial court heard evidence on the motion and overruled it. No findings of fact or conclusions of law on the issue of misconduct were filed by the trial court, and none were requested.

Where no expressed findings are filed, it is presumed on appeal that the trial court found all controverted facts in support of its judgment and that no misconduct occurred. Brawley v. Bowen, 387 S.W.2d 383 (S.Ct.) 1965, and cases cited therein on this point; Bass v. Aransas County Independent School District, 389 S.W.2d 165 (Tex.Civ.App.) 1965, as of this time, no writ history.

Special Issue No. 1 inquired whether Waldon sustained an injury to his body on or about August 26, 1962, and Special Issue No. 6 inquired as to whether his total incapacity to labor, if any, was permanent or temporary, to each of which the jury answered “Yes” and “Permanent”, respectively.

Upon the hearing of the amended motion for a new trial, the only jurors testifying were Mrs. Jackie McGlamery, Mrs. T. J. Wright and H. E. Mays. Mrs. McGlamery and Mrs. Wright were called by the appellant and testified in substance that, while the jury was deliberating its verdict and before any issue had been answered, there was some discussion among the jurors as to how Issues Nos. 1 and 6 should be answered for the plaintiff to get his money. Mrs. McGlamery’s testimony, in part, on this point was as follows:

“Q. Mrs. McGlamery, before Special Issue No. 1 was ever answered by the jury, was there any discussion by the jurors with reference to how the issue ought to be answered in order for Mr. Waldon to get any money from the insurance company?
“A. Well, there was some discussion. <( * * *
“Q. Mrs. McGlamery, please state whether or not before Special Issue No. 1 was answered ‘Yes’, there was any discussion or statements made by any of the jurors in your presence that the question had to be answered ‘Yes’ or Waldon wouldn’t get his money from the insurance company?
“A. There was some discussion.
“Q. Well, weren’t there statements made to that effect, Mrs. McGlamery?
“A. Yes.
“Q. Now, do you know who made the statements ?
“A. No sir.
“Q. Was it made more than once? “A. I don’t recall.
* * *
“Q. * * * Mrs. McGlamery, do you recall whether or not before Special Issue No. 6 was answered by the jury, was it discussed among the jurors as to how it ought to be answered in order for Waldon to get his money?
“A. It was discussed that he had a permanent injury.
“Q. Was it discussed, Mrs. McGlam- • ery, that the question had to be answered ‘Permanent’ or Mr. Waldon would not get his money ?
“A. It had to be answered ‘Permanent’ by the jurors.
“Q. All right. Was there any discussion among the jurors, Mrs. Me-Glamery, in your presence as to what would happen if it was answered ‘Temporary’ ?
“A. If it was answered ‘Temporary’, then he wouldn’t get anything.
* * *
“Q. Was it discussed by more than one juror?
“A. It was djscussed by all of them.
“Q. Mrs. McGlamery, do you recall how the jurors stood numerically before those statements were made ?
“A. No.
“Q. Was there a division among the jurors before the statement was made?
“A. No.
“Q. Was there a division among the jurors on Special Issue No. 1 before any of the discussion was made?
“A. There was some.
"Q. Do you recall what division that was?
“A, No sir.
« ‡ }|C ‡
“Q. After this discussion was held about the issue had to be answered ‘Permanent’, did all the jurors then vote to answer ‘Permanent’?
“A. Did they all vote ‘Permanent’ ?
“Q. Yes.
“A. Yes sir.”

Mrs. McGlamery further testified that she could not recall the name or names of the jurors who stated that Issue No. 6 had to be answered “permanent” or Waldon would not get his money.

On cross examination, Mrs. McGlamery testified that her answers to the issues were based upon the evidence and that alone, and that she did not consider any other matter whatsoever outside the evidence.

The testimony of the witness, Mrs. T. J. Wright, on this point was substantially the same as Mrs. McGlamery. Juror Mays testified he did not hear such statement or discussion. Mrs. Wright did testify that her answers to Issues 1 and 6 were based upon the discussion in the jury room “that that was the way it must be answered in order to get Mr. Waldon some money.” However, on cross examination Mrs. Wright testified that the answer she made to every question was based upon the evidence and that alone. This evidence of Mrs. Wright is in conflict with her testimony on direct examination. Under these circumstances, the construction to be placed on this witness’s testimony and the inference to be drawn therefrom was for the trial court. Since the court overruled the motion, we must imply a finding most favorable to the appellee. Booth v. H. P. Drought & Co., 89 S.W.2d 432 (Tex.Civ.App.) 1936, writ dismissed; Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 1945; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770, 1932.

Conceding, but without deciding, that there was jury misconduct, under Rule 327, Texas Rules of Civil Procedure there remains the question of whether it was “material” or if “injury probably resulted to the complaining party.” In determining the question, the evidence, both on the hearing on the motion for new trial and the evidence taken during the trial, must be considered. Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622, 1947; Prudential Fire Ins. Co. v. United Gas Corporation, 145 Tex. 257, 199 S.W.2d 767, 1946.

In the case of Maryland Casualty Co. v. Hearks, supra, the Supreme Court in discussing the question of jury misconduct said:

“It is further alleged that the jurors were guilty of misconduct in that they first determined that the employee should recover and then designedly undertook to answer the issues so as to accomplish that result.
“Only two jurors testified on this issue. One of them testified that after the jury retired it was discussed that if the issues were not answered in a given way the employee would not recover. However, this juror did not testify that any effort was made to answer the issues so as to accomplish such a result. On the contrary, he testified that each issue was answered according to the evidence and without regard as to who would recover. The other juror testified on direct examination that the issues were answered as they were in order to effectuate the purpose of enabling the employee to recover, but on cross-examination this was denied, and the juror further testified that each issue was answered according to the evidence and without regard to the results. * * *
“The inconsistency between the evidence given by the juror on direct examination and that given by him on cross-examination was resolved by the trial judge in favor of the validity of the verdict. * * * We must assume, therefore, that while the jurors may have discussed in advance the fact that the issues would have to be answered in a given way in order to enable the employee to recover, no effort was made to carry such a purpose into effect. We must further assume that the jury answered each issue in accordance with the evidence and without regard to the results.
“The mere fact that the jurors discussed the fact that the issues would have to be answered in a given way if the employee was to recover is not alone sufficient to constitute misconduct of the jury. It must also appear that the jury designedly attempted to frame the answers to the issues so as to accomplish such a result. * * * ”

See also Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 1949; Monkey Grip Rubber Co. v. Walton, supra.

In the instant case even though some unidentified juror or jurors did discuss the fact that the issues would have to be answered in a given way in order to enable the plaintiff to recover, it is not shown that effort was made by the jury to carry such a purpose into effect.» Nor was this statement and discussion shown to have caused any juror to change his vote on the issues. Davis v. Alwac International, Inc., 369 S.W.2d 797 (Tex.Civ.App.) 1963, writ refused, n. r. e. Further, the jurors who testified on the hearing said that they answered each issue in accordance with the evidence and that alone. Furthermore, it is not shown that the jury agreed in advance of answering the issues submitted, in whose favor the verdict should be and thereafter attempted to answer to questions submitted with the view of bringing about such result.

Under the above authorities, we do not believe that probable harm has been shown.

Next, the appellant alleges that jurors Mays and Miller, while the jury was deliberating its verdict, made the statements that they had experience with drillers’ reports and that they weren’t kept accurately and that such reports were of no significant value to determine whether or not a particular employee working on a -particular shift worked on such shifts and on such dates. Juror McGlamery testified that such statements were made by jurors Mays and Miller. Juror Mrs. Wright testified that such statement was made by either Miller or Mays, she did not recall which one made the statement. Juror Mays testified that he did not make such statement and further that he had never had any experience with drillers’ reports nor did he hear such statement by anyone else.

Appellee alleged that he was injured on or about August 26, 1962, while working on a drilling rig, but that he continued to work up until August 29, 1962. He testified that he did not report to work on his regular tower on the night of August 29 because the injury he had received on August 26 required him to consult a doctor, who put him in the hospital on August 30. It was the position of the appellant that appellee took off from work on August 29, 1962, not because of an injury, but because of a desire to go to Dallas and that he had, in fact, made arrangements previously with a fellow-employee, George Hubbard, to “double over” for him. It was customary in the oil industry for a crew member to exchange towers with fellow crew members which is called a “double over.”

Appellee testified that shortly after he was injured either at that time or the next night, he reported his injury to the driller, A. F. Meyers. Meyers testified that he did not report his injury to him on August 26 or at any time before leaving his job on August 29. Appellant produced a document consisting of many pages, known in the oil industry as a “driller’s report,” reflecting the daily towers, the names of the driller and crew members working thereon and many other records. The appellant’s evidence shows that his report was kept by the drillers and that it accurately reflects the names of the employees working each hour, or shift. This report reflected that George Hubbard did “double over” for ap-pellee on August 29, 1962, and further reflected that Waldon had “doubled over” for Hubbard a few days earlier. Furthermore, the report did not reflect that Waldon had reported an injury and Meyers, the driller, testified that if he had reported to him an injury that it would have been recorded in the report. The appellant says “This testimony controverted appellee’s denial that he had at any time ‘doubled over’ a tower with Hubbard on this job. Appellant relies upon the driller’s report to impeach the testimony of appellee, and in effect, to corroborate appellant’s theory that appellee did not receive an accidental injury on the job, but left the job voluntarily and in accordance with his pre-arranged plan to make a trip to Dallas.”

The plaintiff Waldon testified that he and Hubbard very often swapped towers. That he did not remember whether Hubbard worked for him on his tower on August 29. Hubbard testified that he worked in Waldon’s place one time and Waldon in his one time. He did not say on what date this exchange of work occurred. He said he asked Waldon to double for him. Meyers testified that when Waldon left the job on August 29, that he (Waldon) told him that he was going to Dallas to get drunk and that Hubbard was going to work in his place. Meyers further testified that he said to Waldon: “Well, now, don’t get so drunk that you can’t come back to work tomorrow night,” and that Waldon said: “Don’t worry, I’ll be here.” Waldon denied that he told Meyers or anyone else that he was going to Dallas when he left the job on August 29. It is obvious that juror Mays’ testimony is in conflict with the testimony of jurors McGlamery and Wright. It has been held that if the evidence is conflicting on the question as to whether or not the misconduct actually occurred, the decision of the trial court either way on that question should be accepted as final. Barrington v. Duncan, 140 Tex., 510, 169 S.W.2d 462, 1943; Monkey Grip Rubber Co. v. Walton, supra; Brawley v. Bowen, supra. The trial court in the instant case impliedly found that such misconduct did not occur. Therefore, the trial judge’s implied finding that the alleged jury misconduct of Mays did not occur is binding on this court. Brawley v. Bowen, supra.

However, the evidence offered that juror Miller made such statement is undisputed in the record. The Supreme Court of this state has held that one of the conditions necessary to be shown in order to obtain a new trial upon jury misconduct is that the misconduct complained about is material. Kendall v. Southwestern Public Service Company, 336 S.W.2d 770 (Tex. Civ.App.) 1960, n. w. h.; Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615, 1951. There was no issue submitted to the jury inquiring as to when notice of injury was given. The fact that the driller’s report failed to show that Waldon had reported an injury on the job would not be any evidence of probative force that he did not receive an injury. Whether or not Hubbard “doubled over” for Waldon and at his (Waidon’s) request on August 29 or whether Waldon told the driller that he was going to Dallas and would be back to work on the night of August 29 would not tend to prove that he did not receive an injury as alleged. The undisputed proof shows that he did consult a doctor on that date and was placed in a hospital. We do not find any issue that was submitted to the jury upon which this testimony would have any probative force. Thus it appears to us that Miller’s statements in the jury room were not material. Moreover, probable harm has not been shown.

When misconduct is established whether or not such misconduct be material and whether probable injury has resulted to the complaining party is one of law for the reviewing court. Barrington v. Duncan, supra; Estep v. Bratton, 24 S.W.2d 465 (Tex.Civ.App.) 1930, n. w. h.

Not all jury misconduct constitutes reversible error. The burden rests upon the party complaining of jury misconduct as a ground for a new trial not only to show by a preponderance of the evidence that misconduct probably occurred, but also that it was material and that it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole, that injury probably resulted to the complaining party. Rule 327, T.R.C.P.; Noyl Corporation v. Houston Independent School District, 317 S.W.2d 756 (Tex.Civ.App.) 1958, no writ history; Barrington v. Duncan, supra; Crawford v. Detering Co., supra. We are of the opinion that in the case at bar appellant has failed to show any misconduct on the part of the jury which was either material or probably resulted in injury to him. Singleton v. Carmichael, 305 S.W.2d 379 ((Tex.Civ.App.) 1957, writ refused, n. r. e. Neither, in our opinion, did the accumulation of these alleged acts of misconduct by the jury amount to misconduct warranting a reversal of the judgment. Walker v. Thompson, 287 S.W.2d 556 (Tex.Civ.App.) 1956, writ refused, n. r. e.; Noyl Corporation v. Houston Independent School District, supra. Appellant’s Points 1 and 2 are, accordingly, overruled.

The appellant further alleges in its Point- 3 that the court erred in refusing to grant a new trial upon the ground of newly discovered evidence. Appellant contends that a medical examination of appellee made by Dr. Milton Freiberg, three days before trial, was concealed from appellant by false testimony and not discovered by appellant until after the return of the jury verdict.

Upon the trial of this case the appellee, on direct examination, testified that subsequent to his injury he saw Dr. Merritt and Dr. McCarthy. Then his counsel propounded the following questions to him:

“Q. All right, sir. And have you seen another doctor?
“A. No sir.
“Q. Well, have you seen Dr. De-Charles ?
“A. Yeah, DeCharles, that’s right, yeah.”

However, he did not reveal that only three days prior to the beginning of the trial that he had been to Dr. Milton Frei-berg, an orthopedic surgeon, and that the doctor had furnished his counsel with a written report as to his findings. Neither appellant nor its representatives had any knowledge that appellee had been submitted to Dr. Milton Freiberg until after the judgment in the trial court had been entered.

After judgment was entered and before the hearing on its amended motion for a new trial, appellant’s counsel took the deposition of Dr. Freiberg and offered it in evidence upon the hearing of its amended motion for a new trial and it is now before this court.

Upon the trial of this case, appellant called as one of its witnesses Dr. P. M. DeCharles, an orthopedic surgeon, and he testified fully as to his examination of the appellee and his findings as a result of the examination. Based upon his findings, he testified that on May 10, 1963, the day of the examination, that in his opinion the appellee was able to do manual labor. We have read the deposition of Dr. Freiberg and it appears to us that his testimony was substantially the same as that given by Dr. DeCharles. The appellant contends that his newly discovered evidence entitles it to a new trial and that this case should be reversed and remanded. It is appellee’s contention that Dr. Freiberg’s testimony is merely cumulative.

In order to justify the trial court in granting a new trial on the ground of newly discovered evidence, the appellant must show that such evidence was discovered too late to present at the trial, that it was not due to lack of diligence on appellant’s part, that the testimony was material and not merely cumulative, and that the evidence was so material it would, if admitted, probably bring about a different verdict on another trial. Texas Employers’ Ins. Ass’n. v. Pillow, 268 S.W. 2d 716 (Tex.Civ.App.) 1954, writ of error refused, n. r. e.; Allen v. Texas & N. O. R. Co., 70 S.W.2d 758 (Tex.Civ.App.) 1934, writ dism. In Houston & Texas Central Railway Company v. Forsyth, 49 Tex. 171, 180, the court discussed the problem of cumulative evidence as follows:

“* * * Cumulative evidence, as has been often said, is additional evidence of the same kind to the same point.. Although evidence tends to prove the same proposition as that previously introduced, yet it is not cumulative when it is of a different character, and merely tends to prove the former proposition by proof of a new and distinct fact. ‘The meaning of the rule,’ says Judge Woodbury, in Aiken v. Bemis, 3 Wood. & Min., 358, ‘cannot be to exclude, as cumulative, newly-discovered evidence of subordinate points or facts bearing on the general question; for, in such a view, no new trial for new evidence could ever be obtained, all new evidence relating, as it must if it be pertinent, to the general ground or general fact put in issue before. But it must mean that new evidence to a subordinate point or fact, is not competent where the subordinate point or particular fact was before gone into; because it is then cumulative or additional as to that fact.’ ”

It has been held that by new evidence is meant proof of some new and material fact in the case which has come to light since the trial. Mitchell v. Bass, 26 Tex. 372; New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864 (S.Ct.) 1962. The last two authorities above cited hold:

“ * * * It is not proposed to multiply witnesses to any distinct fact or circumstance testified to by witnesses upon the trial; but it brings to light a new and independent truth, which the testimony upon the trial sought, but in vain, to prove.
“ * * * The new evidence relates to the proof of a fact by means so dissimilar from that used upon the trial, as to afford no ground for treating it as cumulative merely of the evidence upon the trial. It is of so decisive a nature, so material to the just decision of the matter in controversy, * i Js % »

We deem the evidence of Dr. Freiberg to be cumulative. This testimony does not bring to light a new and independent truth, which the testimony upon the trial sought, but in vain, to prove. Neither do we find that the testimony of Dr. Freiberg is of such decisive a nature and so material to a just decision to the matter in controversy. Moreover, a new trial will not be granted on account of newly discovered expert testimony. Allen v. Texas & N. O. R. Co., supra. It is undisputed that Dr. Freiberg would come within this category of giving expert testimony.

Whether motion for a new trial on the ground of newly discovered evidence will be granted or refused is generally a matter addressed to the sound discretion of the trial court and the trial court’s action will not be disturbed on appeal, absent an abuse of such discretion. Texas Employers' Ins. Ass’n. v. Pillow, supra; Mitchell v. Bass, supra; Williams v. Southern Life & Health Ins. Co., 208 S.W.2d 574 (Tex.Civ.App.) 1948, n. w. h. The inquiry is not whether, upon the evidence in the record, it apparently might have been proper to grant the application in a particular case, but whether the refusal of it has involved the violation of a clear legal right or a manifest abuse of judicial discretion. Texas Employers’ Ins. Ass’n. v. Pillow, supra; San Antonio Gas Company v. Singleton, 24 Tex.Civ.App. 341, 59 S.W. 920, 922, writ of error refused.

In the case of Gowan v. Reimers, 220 S.W.2d 331 (Tex.Civ.App.) 1949, n. w. h., the court said:

“Motions of this character have perplexed the courts ever since early Statehood. They are said to be received with careful scrutiny and are held to address themselves largely to the discretion of the trial court under the facts of each particular case and that if the court has overruled the application it will not be reviewed in the absence of a showing of abuse of that discretion. Mitchell v. Bass, 26 Tex. 372. * * *”

While we do not wish to be understood as condoning concealment of facts, whether willfully or otherwise, the question of whether appellee willfully or wrongfully concealed his visit to Dr. Frei-berg, as well as the materiality of Dr. Freiberg’s testimony was a matter within the sound discretion of the trial court. We are unable to say that this discretion was abused in the instant case.

The Point of Error is therefore overruled.

The appellant further complains that “The trial court erred in refusing to permit witness, Herbert S. Dillard, to give testimony impeaching appellee’s witness, W. L. Coker, on the grounds that the Rule had been invoked and the tendered witness, Herbert S. Dillard, had heard a portion of W. L. Coker’s testimony, all as set out in appellant’s Bill of Exception No. 2.”

During the trial of this case appellee, in order to corroborate the occurrence of his claimed accidental injury, produced a witness, Warner L. Coker, who testified that he was present when appellee was injured and that immediately after the alleged injury, the appellee complained of his side and back. Upon cross examination appellant’s counsel confronted witness Coker with what purported to be his signed statement, dated May 29,1963, wherein he stated that on the occasion in question the ap-pellee did not make any complaint of injury to his back. Witness Coker denied having made such a statement and stated that he had not read the statement, inferring that the statement had been changed. Thereupon, when appellant was presenting its evidence, it tendered witness Herbert S. Dillard, appellant’s claims representative, who had taken the written statement from W. L. Coker on May 29, 1963. Appellee’s counsel objected to witness Dillard testifying in the case on the ground that the witness had been placed under the Rule and Dillard had been sitting in the courtroom at least a portion if not the entire time and had heard the testimony of said witness, W. L. Coker. The court sustained appellee’s objection and refused to permit Dillard to testify. At the beginning of the trial, the Rule was invoked and all witnesses were placed under the Rule. At the time, Dillard was not in the courtroom and was not placed under the Rule. On appellant’s Bill of Exception, it was developed by the testimony of Dillard that Coker had told him at the time he took the statement the appellee, at the time of his alleged injury, did not complain with his back, that the statement was the same as it was at the time he took it, and that Coker did read it.

While the instant case was pending in this court on appeal and after the submission thereof, the Supreme Court of this state in the case of Southwestern Bell Telephone Company v. Johnson in its majority opinion handed down April 3, 1965, 389 S.W.2d 645, discussed this identical question. In that case, suit had been brought against the telephone company by plaintiff for damages for bodily injuries received when plaintiff was struck by a truck belonging to the telephone company. The telephone company produced a witness named Watson who testified for defendant and his testimony was allegedly contrary to what the witness Watson had told plaintiff’s investigator Blakey. At the trial of the ease, Blakey was not placed under the Rule and was sitting in the courtroom at least a portion of the time while Watson also testified. Following Watson’s testimony, which was detrimental to plaintiff, the latter tendered Blakey as a witness to impeach witness Watson. The trial court refused to permit Blakey to testify. The Court of Civil Appeals of Beaumont, with one Justice dissenting, held that the trial court erred in refusing to allow Blakey’s testimony, citing Johnson v. Cooley, 30 Tex.Civ.App. 576, 71 S.W. 34, 1902, n. w. h., and Holstein v. Grier, 262 S.W.2d 954 (Tex.Civ.App.) 1953, n. w. h. The Court of Civil Appeals held that under the facts, the trial court had no discretion, was compelled to permit the testimony and even though it was a matter of discretion with the trial court, the refusal of the court to permit witness Blakey to testify was an abuse of discretion.

The Supreme Court in reversing the Court of Civil Appeals in the Telephone case said:

“ * * * The question is not whether the action of the Court in disqualifying Blakey appears to us to have been required, but rather the question for decision is whether the Court abused its discretion. The trial judge had the discretionary authority to take into consideration all of the facts, including the fact that the voice recording was made with the intention that it be used at the trial and with the knowledge that Ray Blakey was the only person who could identify the recording. The plaintiff invoked the rule and should have seen that Blakey was placed under rule. We cannot say that the judge, in the exercise of his discretionary power, acted arbitrarily or unreasonably in disqualifying the proffered witness, Blakey. The action of the trial court should be upheld. ‘The mere fact or circumstance that a trial judge may decide a matter within his discretionary authority in a manner different from what an appellate judge would decide if placed in a similar circumstance does not demonstrate that an abuse of discretion has occurred.’ Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290 (1959).”

The primary, if not the only purpose, in taking the statement of Coker was for the very use that appellant attempted to use it, with the knowledge that Dillard was the only person by whom Coker could be impeached if he later denied in court as a witness the statement or any part thereof. We believe under the Telephone case the rule in the case at bar having been invoked (the record does not show by whom) appellant should have seen that Dillard was placed under rule. It is our view that the Telephone case controls the question before us and under the facts presented, we are not prepared to hold that the judge abused his discretionary power in disqualifying the proffered witness Dillard.

Appellant relies upon Holstein v. Grier, supra; Johnson v. Cooley, supra, and Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010. It is further our view that the Supreme Court in the Telephone case impliedly overruled these cases insofar as they concerned the question here under consideration.

Other assignments not discussed above have been considered and are deemed without merit and are overruled.

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. W. H. A. MEYER, Appellee.
    No. 6770.
    Court of Civil Appeals of Texas. Beaumont.
    June 17, 1965.
    Rehearing Denied July 21, 1965.

      Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a compensation case. Trial was by jury, and judgment was rendered that plaintiff recover for total and permanent disability. The parties will be referred to here as they were in the trial court.

Defendant’s first series of points attack the findings of the jury that plaintiff sustained an injury, that such injury was accidental, and that such injury was sustained in the course of his employment. Each finding is attacked as being supported by no evidence, by insufficient evidence and as being contrary to the great weight and preponderance of the evidence.

In passing upon the no evidence points we consider only the evidence favorable to the findings of the jury. Plaintiff testified: He was working for Texas Company as a pumper on the graveyard shift at the time he received an injury; he had gone to check the level of the water when the wind blew steam at him causing him to slip and fall; he fell three or four steps, landing on his back on the corner of the steps; no one else was around at the time of this fall. This evidence supported the findings of the jury that plaintiff sustained an accidental injury in the course of his employment. We consider the entire record in passing upon the other points. We do not find such answers of the jury to be so contrary to the evidence as to be manifestly unjust and clearly wrong. The points are overruled.

The next series of points contended there was no evidence and insufficient evidence to support the findings of the jury that the injury was a producing cause of total and permanent disability beginning January 5, 1961, and that plaintiff’s incapacity was not due solely to disease, pre-existing or subsequently occurring physical defects, prior conditions, injury or injuries sustained prior to or subsequent to January 5, 1961, or some combination thereof, and that such findings were against the great weight and preponderance of the evidence. We consider first the no evidence points and look only to the evidence favorable to such findings. Dr. Frank Wilson testified as follows: He was a full time employee of the Texas Company engaged in industrial internal medicine; plaintiff had been off from work because of sickness and Dr. Wilson examined him when he returned to work December 21, 1960; plaintiff was okayed to return to work, and was able to do his job when he returned; Dr. Wilson examined plaintiff again January 19, 1961, and plaintiff told him his back had been hurting since he returned to work; that Dr. Wilson and Dr. Walther signed a letter that plaintiff was permanently and totally disabled. The last paragraph of such letter read as follows:

“This man is incapable of rendering any further useful service and it is recommended that he be retired because he is permanently and totally disabled.”

Dr. Charles D. Walther testified as follows: That he was the head of the medical department at Texaco; that plaintiff has generalized osteoarthritis of the lumbar spine; that the osteoarthritis of the lumbar spine was one of the contributing factors to the plaintiff’s being permanently and totally disabled; the condition of plaintiff’s back has some connection with plaintiff’s disability; that the existence of osteoarthritis for many years could be lighted up, aggravated or inflamed by a severe fall, especially in a person the age of plaintiff. Plaintiff testified he hurt his back when he fell and that his back was the same after more than three years since the date of the injury. This evidence supported the findings of the jury. In passing upon the other points we consider the entire record. Both Dr. Wilson and Dr. Walther testified that plaintiff’s condition of being permanently and totally disabled was caused by five factors, the primary cause being a heart condition and the least cause being the osteoarthritis. It was not necessary for the injury to be the sole cause of his incapacity for plaintiff to recover on the basis of total and permanent disability. The insurer’s liability can be reduced only by alleging and proving a prior compensable general injury. This was not done. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744. There is other evidence in the record which did no more than raise issues for the jury to decide, which it did favorably to plaintiff. We do not find the answers of the jury to be against the weight of the evidence so as to be clearly wrong or manifestly unjust. The points are overruled.

Defendant complains of the refusal of the trial court to give a series of issues inquiring as to whether any percentage of plaintiff’s total incapacity was due solely to pre-existing conditions, the natural process of aging, natural causes, the advanced age of plaintiff, and if so, the period of time of such incapacity due to such causes. It is argued by defendant that the issue submitted by the court as to pre-existing conditions required the jury either to find that the incapacity was solely caused by such pre-existing conditions as a whole, or not at all, and that defendant was entitled to ask the jury whether or not some duration of the total incapacity was solely caused by such pre-existing conditions. This is a unique question which we have not seen raised before.

Defendant’s first requested issue in this series inquired whether all of plaintiff’s incapacity was solely due to pre-existing conditions, etc. Based upon an affirmative answer that all of plaintiff’s incapacity was not solely due to pre-existing conditions, etc., the second requested issue inquired whether any period of plaintiff’s incapacity was solely due to pre-existing conditions, etc. Based upon an affirmative answer, plaintiff’s third requested issue inquired as to -the beginning date that plaintiff’s incapacity began which was solely due to preexisting conditions, etc. This issue was followed by this instruction: “Answer by giving the period of time in dates.” It is noted that the form of suggested answer does not conform with the question and could not provide an intelligent answer to the question. The next requested issue inquired whether any percentage of plaintiff’s incapacity was solely due to pre-existing conditions, etc. The last requested issue based upon an affirmative answer to the preceding question, inquired as to what percentage of plaintiff’s incapacity was solely due to pre-existing conditions, etc.

We hold that it is not necessary for this court to pass upon the question as to whether a defendant is entitled to have presented to a jury its affirmative defense supported by pleadings and evidence, that a part of the period of total incapacity was solely caused by pre-existing conditions, etc. The requested issues were not substantially correct as required by Rule 279, Texas Rules of Civil Procedure, because the questions asked could not provide the basis for a judgment for defendant in the form submitted. The last two issues requested inquiring as to a percent of incapacity solely caused by pre-existing conditions, etc., were not ultimate issues. As previously stated, defendant would derive no benefit or relief from a finding that a certain percent of plaintiff’s incapacity was solely due to pre-existing conditions, etc., unless the condition was a prior compensable general injury. The points are overruled.

Judgment affirmed.