author: SELLERS, Justice.

text:
    CITY OF FORT WORTH, Appellant, v. L. C. JOHNSON et al., Appellees.
    No. 36.
    Court of Civil Appeals of Texas. Tyler.
    March 12, 1964.
    Rehearing Denied April 16, 1964.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellant.
    William D. Campbell, Campbell & Campbell, Fort Worth, for appellees.
   SELLERS, Justice.

This is a suit by the City of Fort Worth against L. C. Johnson and others; but in all material respects, the suit is against Mrs. Laverne Hurt, seeking to permanently enjoin the defendant, Mrs. Laverne Hurt, from using a six-unit apartment house located on Lot 3, Block S, Hawkins Scenic Hill Addition to the City of Fort Worth, Tarrant County, Texas (also known as 858 Scenic Hill Drive), in such a manner that not more than two families reside on the premises at the same time.

The trial was to the court without a jury. At the conclusion of the plaintiff’s evidence, the trial court announced that in its opinion the evidence was insufficient to grant the relief sought.

Plaintiff’s pleadings material were as follows:

“That the premises located at 858 Scenic Hill Drive, in the CITY OF FORT WORTH, Texas, the same being Lot 3, Block S, Hawkins Scenic Hill Addition to the City of Fort Worth, Tarrant County, Texas, are now, and have been at all times pertinent to this cause of action, within a ‘B’ two family zone as defined in Ordinance No. 3011 of the City of Fort Worth, and such ordinance was in effect before the construction of the six-unit apartment house presently located thereon.
“That at the time of the filing of this petition and prior thereto, and all times referred to herein, the Defendants have owned, possessed and controlled the premises and improvements at 858 Scenic Hill Drive, Fort Worth, Texas, the same being Lot 3, Block 5, Hawkins Scenic Hill Addition to the CITY OF FORT WORTFI, Tarrant County, Texas, and used, or caused to be used, the said premises and improvements for the purpose of the renting or leasing same in such a manner that more than two families were residing on said premises at the same period of time; and at the time of filing of this action more than two families are residing on said premises; and such use by the Defendants of the said premises is expressly prohibited by Ordinance No. 3011 of the CITY OF FORT WORTH.
“That though often requested and notified to cease and desist from the use and operation of the premises and improvements for the purpose of renting or leasing same in such a manner that more than two families reside on said premises at the same period of time, the Defendants have steadfastly failed and refused to cease and desist therefrom and have continued to use and operate the premises and improvements for the purpose of renting or leasing same in such a manner that more than two families reside on said premises at the same period of time, in plain violation of Ordinance 3011 of the CITY OF FORT WORTH.
“That the acts of the Defendants as hereinbefore alleged are and will be continuing in their nature; that neither this plaintiff nor its residents have an adequate remedy at law; that this plaintiff and its residents will suffer irreparable injury and damage to their health, safety and welfare unless this court enters its order restraining Defendants and enjoining Defendants from using said premises for the purpose of renting or leasing same in such a manner that more than two families reside on the premises at the same period of time; that the existing conditions should be in all things permanently corrected and the Defendants enjoined to correct said conditions to conform to the provisions of Ordinance No. 3011 of the City of Fort Worth; the building or structure, unless enjoined, will in the future continue to exist and be used in violation of law; that the Plaintiff and the public now and in the future, will suffer irreparable injury unless the injunction requested by the Plaintiff is granted by this court.”

The petition closes with a prayer for a permanent injunction enjoining defendants from using the property in such a manner that not more than two families reside on said property at the same period of time.

Defendant, Mrs. Laverne Hurt, in her answer plead a general denial, laches, and irreparable injury if plaintiff recovers.

The evidence offered by the City is very well stated by the Appellee on page 3 of its brief:

“Witness John M. May, Zoning Administrator for Appellant, has never talked to Appellee. (SF-19). Witness May states that on basis of physical and structural appearance, building in question would add to improvement of neighborhood. (SF-24).
“Witness Joe Tyson, tenant of Ap-pellee, testified that rent he paid Appel-lee for one apartment was reasonable but about as high as he would expect to pay for such accommodations (SF-29) and that if the total building was divided into two units, a rental of $265.00 per month would not be feasible. (SF-28). It was stipulated that all other five tenants of Appellee, who were in Court, if testifying would testify substantially as did Witness Tyson. (SF-31).
“Witness T. Avery testified he was out at the building several times (SF-33), but talked to Appellee only one time. (SF-54). He stated that only one person, a Miss Davis, contacted him personally to make a complaint about the use of the property in question. (SF-42). One other man called him but he didn’t know his name. (SF-44).
“Concerning the building in question, Avery testified that it is one of, if not the most attractive structure in the entire community. (SF-51). In connection with possible building space congestion, Avery testified that the building in question is further away from surrounding buildings than the buildings (on either side of it, in back of it or across the street from it) are from other buildings in the area. That the building is built in a hollowed out place in a hillside. (SF-58-60).
“In connection with traffic and parking, Avery testified that the building in question has place for six cars to park off the street as compared to 4 for building across the street. After pinpointed cross-exam, the result of Avery’s testimony on traffic congestion was merely ‘It’s possible.’ (SF-63).”

There is no dispute in the evidence that this house and lot is in a properly zoned section of the city for two-party residences —in other words, known as a duplex; nor is there any controversy that this residence was being used at the time that the suit was brought for an apartment house of six units, all complete with kitchen, living room, bedroom, and bath, and each tenant paying the rental on his apartment to Mrs. Laverne Hurt as landlord.

The original zoning ordinance was adopted by the City on November 26, 1952, and became effective March 1, 1953. The City granted a permit for the construction of a two-family dwelling on this property on September 26, 1958. The building was completed as a five-unit apartment instead of a duplex on January 2, 1959. The City gave notice to the then owner to discontinue the three extra units, this being done on January 5, 1959. Thereafter, it seems that the Legal Department placed an okay on the construction as of February, 1960. Mrs. Hurt purchased this property for a valuable consideration July 14, 1961. Thereafter, the Building Inspector of the City, Mr. E. T. Avery, notified Appellee Hurt of the Zoning problems of this property and in October, 1961, the City filed this suit.

The trial court, in rendering its judgment against the City for insufficiency of evidence, in our opinion, had in mind the failure of the City to prove its allegation that the operation of the property for more than two apartments would damage it and its residents in their health, safety, and welfare. The record in our opinion wholly fails to sustain this allegation. The property is an addition to the immediate community in appearance. It has more space between it and the other buildings than other buildings in the vicinity have between them.

The evidence fails to show the apartments are not operated in an orderly manner, nor is there any direct evidence of traffic jams. It would seem to this court that the trial court’s judgment is fully supported by the evidence. This holding does not mean that the City ordinance is invalid. Our courts have held that a City ordinance may be invalid insofar as a single piece of property is concerned but valid in all other respects.

“A zoning ordinance may be valid in its general aspects, and yet as to a particular state of facts involving a particular owner affected thereby may be as to such owner so clearly arbitrary and unreasonable as to be unenforceable. Village of University Heights et al. v. Cleveland Jewish Orphans’ Home (6 Cir.), 20 F.2d 743 (54 A.L.R. 1008); Jones et al. v. City of Los Angeles et al., 211 Cal. 304, 295 P. 14.” City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388.

Mrs. Hurt acquired this property two and one-half years after its completion, for a valuable consideration without notice that it was finished in violation of the permit granted for its construction; and for this reason, she should not be enjoined from its use as a six-unit apartment house solely for the reason that it violates the zoning ordinance in question. This principle of law is supported by the case of Town of Highland Park v. Marshall, Tex.Civ.App., 235 S.W.2d 658, from which we quote:

“It is contended that the nonconforming use, at most would be limited to the garage building as it existed prior to 1929; not legally extending to the structural alterations thereof made in 1930 without a permit; with result that any occupancy of the subsequently added second story was wholly unauthorized. While appellees acquired this property in 1948 subject to the Town zoning laws applicable thereto, the record reflects no knowledge by them that the accessory building enlargement, when made, was in violation of ordinance. Nor do we think they were lawfully chargeable with notice under the circumstances here of what the building inspector’s record reflected or failed to reflect with reference to a permit. On the other hand, would not the completed structure stand as mute evidence of acquiescence on part of Highland Park officials concerning alterations made 18 years before ? The presumption would obtain after such lapse of time that aforesaid extension was consistent with ordinance, not that there was a violation; in other words, an alteration within purview of sec. 7, paragraph 3, providing that the extension of a use to any portion of a building which portion was arranged or designed for such nonconforming use at the time of passage of the ordinance, should not be deemed the extension of a nonconforming use.
“In absence of testimony to the contrary, it is always to be inferred that parties have acted within the scope of their legitimate authority, and it will never be presumed that they have violated the law when the reverse is equally consistent with the facts disclosed. Williams v. Talbot, 27 Tex. 159; 17 Tex.Jur., sec. 59, pp. 267, 268. Appel-lees’ counterpoint No. 2 therefore correctly states that appellant City having acquiesced in the enlargement of the garage building ‘ * * * for more than nineteen years cannot now be heard to complain that defendants, innocent purchasers for value, have no right to maintain said single family dwelling structure in its present condition.’ ”

The City filed a lengthy motion to have the Court re-open the case and allow it to introduce more evidence. No reason is offered why the evidence was not offered in the main trial. The motion came five days after the case was tried and after the Court had rendered his decision. There is added to the motion two long affidavits as well as many exhibits. The motion was overruled by the trial court, and the City complained that the trial court abused its discretion in so ruling.

We are of the opinion that the trial court did not abuse its discretion in so ruling; and to hold otherwise would, in our opinion, be requiring the trial court to try its cases in piece-meal. We believe the trial courts do not have time to so conduct their business. We have examined the cases cited by appellant on this point; and in our opinion, they do not support the appellant’s points under the facts in this case.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    CAMCO, INCORPORATED, Appellant, v. Mrs. Gladys Ebert EVANS et al., Appellees.
    No. 14235.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1963.
    Rehearing Denied April 22, 1964.

      Kleberg, Mobley, Lockett & Weil, Corpus Christi, Markel Heath, Falfurrias, for appellant.
    Lloyd, Lloyd, Dean & Ellzey, Alice, Fi-dencio G. Garza, Jr., Falfurrias, for appel-lees.
   BARROW, Justice.

This is a wrongful death action brought by the surviving widow and two minor children of deceased, Seth Burns Evans, a general employee of Crews Wells Service, against Cameo, Inc. Crews Wells Service is a drilling contractor and Cameo is an oil field specialty service company. At the time of the accident in which Evans lost his life, both Crews and Cameo were performing services for Humble Oil & Refining Company. After a jury trial, the court granted appellees’ motion for judgment, and rendered judgment whereby ap-pellees recovered damages from appellant in the total sum of $50,000.

Appellant has perfected this appeal and asserts: (1) that it is entitled to judgment on the jury finding that the deceased was a “special servant” of appellant at the time of the accident; (2) that the jury’s findings of primary negligence were destroyed by other findings; (3) that the jury findings of primary negligence are in irreconcilable conflict with other findings; (4) the amounts of damages as found by the jury are manifestly unjust and so excessive as to show that the jury was influenced by passion and prejudice; (5) the court erred in overruling exceptions and objections to the duplicitous pleading and submission of the primary negligence issues; and (6) the court erred in overruling appellant’s objections to the damage instructions.

Evans was killed in an accident which occurred on August 2, 1961, on an Humble lease in Brooks County. A well on this lease was full of water and three companies were employed by Humble to rework the well. Crews Wells Service had been on this location about two weeks before the accident with its rig, consisting of a substructure, rig floor, rotary, derrick and cathead (winch). On the afternoon of August 1, two Cameo employees arrived on the location for the purpose of opening the sleeve on the well. After it was opened the Nitrogen Service Company forced nitrogen into the well in order to evacuate fluid from the casing and tubing. This was completed early in the morning of August 2, and then it was Cameo’s job to close the sleeve. The sleeve was opened several thousand feet below the surface and in order for Cameo to open and close it, special equipment was required and furnished by Cameo. A common oil field fitting known as a “unibolt” is attached to the Christmas tree at the well’s surface. One-half of this unibolt is connected with the Christmas tree and the other half is on whatever equipment is to be connected to the Christmas tree. In performance of its work, Cameo furnished a wire-line valve or “blow-out preventer” which was connected to the unibolt. The special tools used for opening and closing the sleeve are lowered into the well in a 16' tube known as a “lubricator.”

On this occasion, after it was determined by Crews’ toolpusher and Clovis Higgin-botham, the wireline operator in charge for Cameo on this location, that the sleeve had been properly closed, Cameo was required to rig down its equipment and upon removal of Cameo’s equipment, Crews would take down its rig and leave the location. The testimony is undisputed that it is customary in oil field work for the rig crew to assist the specialty companies in rigging down their equipment. The accident occurred during this rigging down, while the wire-line valve was being removed.

Cameo furnished two men for its part of the work — Higginbotham and his helper, Bancroft. Crews had four men on this location when the accident occurred — Orea Lee Belk, driller; Lee Craig, chainhand; Jessie Rakowitz and the deceased, S. B. Evans, floormen. The rig crew were not engaged in any particular work of their own at the time and were assisting Cameo in rigging down its equipment. Belk was operating the cathead, Rakowitz and Evans were on the rig floor, and Craig was on the ground near the Christmas tree. The lubricator had been hanging in the rig until after the tests were completed and it was then lowered to the ground by use of the catline on the cathead. The tools were removed and Higginbotham was placing them in the Cameo truck.

Bancroft and Craig were working to loosen the wireline valve from the unibolt connection. The catline was lowered by Belk through the hole in the rig floor to the wireline valve so that the valve could be hoisted after it was freed from the unibolt on the Christmas tree. Evans and Rakowitz were waiting to guide the valve through the opening and then over the side of the rig floor. In accordance with customary practice, Bancroft struck the unibolt with a hammer to loosen the connection. Unfortunately, the master valve on the Christmas tree had not been closed, and about 3,000 pounds of pressure per square inch was against the unibolt and it exploded when struck. Evans was instantly killed; Bancroft, Craig and Radowitz were injured.

The jury found that Cameo’s employees were negligent in three aspects, and each was a proximate cause of Evans’ death. The jury found, however, in response ta Issue No. 11, that “in the work being done at the time of and immediately before the accident * * * the Cameo operator, Hig-ginbotham, and his helper, Bancroft, had the right to control what Mr. S. B. Evans was doing and would do and how it was to he done.” It was stipulated that Cameo carried workmen’s compensation insurance, and therefore Cameo urges that Evans was its special employee at the time of the accident and cannot recover in this common law action. Appellees urged in their motion for judgment, or in the alternative for judgment non obstante veredicto, that there were no pleadings or evidence to support this defense.

It is our opinion that the pleadings of.Cameo do not raise the defense of “special servant,” and that the trial court improperly overruled appellees’ objection to the submission of this issue. Cameo alleged that it was hired to perform services in opening and closing a sleeve far below the surface of the ground and that this service had been completed properly; that the accident occurred during the removal of Cameo equipment, which was an undertaking participated in by Cameo employees and members of Crews’ rig crew.

Cameo further alleged that: “According to the usage and custom prevailing, these members of the rig crew, including Evans, since they were not otherwise occupied, helped and assisted in the disassembling and packing of the Cameo equipment, and in such work the members of the rig crew technically were subject to the direction and control of the Cameo employee, as to what should be done, and when and as to the manner in which it would be done. In practice, the rig crew knew what should be done and how to do it and accordingly proceeded without specific direction, or actual supervision and control by the Cameo operator or his helper.” It then alleged that Craig, without specific or actual direction, control or supervision by Cameo’s employees, began to remove the wireline valve without closing the master valve, and that his failure to close the master valve was the sole proximate cause of the accident.

Cameo alleged that Evans had assisted and was to assist in lowering the Crews’ cat-line through the opening in the rig floor and raising the wireline valve. “This was part of the operation that while it was technically subject to the direction, control and supervision of Higginbotham and/or Bancroft, was not actually directed, supervised and controlled since this was an operation with which a qualified oil field employee, such as Evans, was familiar and as to which he needed no specific, actual supervision, direction or control.” It was then alleged that Evans was contributorily negligent in not ascertaining that the master valve was closed.

There -was no allegation that Cameo carried workmen’s compensation, although there was a general allegation that Cameo was not liable to appellees for the death of Evans and the sole and only remedy of ap-pellees was under workmen’s compensation laws of Texas.

It is seen that, although Cameo alleged that Evans and his co-crew member, Craig, might technically be its special servants in such a situation, it alleged that on this specific occasion they were not. The defenses of sole proximate cause and contributory negligence asserted by appellant are inconsistent with the theory of “special servant” and appellant’s point that appellees must seek relief from Cameo’s workmen’s compensation carrier. Art. 8306, § 1, Vernon’s Ann.Civ.Stats.

There is no contention and it cannot be said, that this issue was tried by implied consent, as appellees timely objected to the submission of this issue on the ground that there were no pleadings. Harkey v. Texas Employers Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919. Appellant did not file a trial amendment. The trial court therefore erred in submitting this issue over ap-pellees’ objection.

Appellant urges, however, that even if the pleading did not support the issue of “special servant,” the court could not disregard the jury finding and enter judgment in favor of appellees. It is true that under the provisions of Rule 301, Texas Rules of Civil Procedure, a trial court is authorized to render judgment non obstante veredicto only when there is no evidence warranting a submission of the issue to the jury. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206; Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224. However, this rule has no application here. Since the issue of “special servant” was not pleaded or tried by implied consent, the finding of the jury was immaterial and could be disregarded without resort to a judgment non obstante veredicto. McDonald, Texas Civil Practice, § 17.31.

In Sproles v. Rosen, 126 Tex. 151, 84 S.W.2d 1001, the Court said: “The issue in question having no such support in the pleadings as to warrant its submission, the trial court did not err in disregarding the general finding made in response thereto.” See also, Robichaux v. Bordages, Tex.Civ. App., 48 S.W.2d 698, writ ref.; Hodges v. Nix, Tex.Civ.App., 225 S.W.2d 576; 41-B, Tex.Jur., § 591. The trial court therefore properly disregarded the finding of the jury in response to Issue No. 11.

Appellant asserts in its second and third points that the primary findings of negligence as found in response to the first six issues are controlled by the jury findings to Issues 7, 9 and 14, or, in any event, are so conflicting that the judgment cannot stand. It is well settled that it is our duty to harmonize jury findings when possible. Producers Chemical Company v. McKay, Tex., 366 S.W.2d 220; Traywick v. Goodrich, Tex., 364 S.W.2d 190.

Issues 7 and 9 inquire as to whether Bancroft kept a proper lookout and gave proper warning to Evans that he was going to remove the wireline valve. It is seen that these issues inquire about different duties than are inquired about in Issues 1, 3 and 5. There is no conflict between the answers to these issues, and the findings favorable to appellant on Issues 7 and 9 do not destroy the unrelated adverse findings.

By their answer to Issue No. 14, the jury found that Bancroft was not negligent in assuming that Craig had closed the master valve before beginning to loosen the unibolt. This was based on evidence that a qualified oil-field worker should know that the high pressure must be kept from the unibolt before loosening the connection. The jury found, however, that Craig’s act in beginning to loosen the unibolt without closing the master valve was not the sole proximate cause of the accident. In answer to Issue No. 1, the jury found that Bancroft’s act in striking this coupling on the wireline valve while the gas was exerting high pressure against it was negligence. These findings can be harmonized in that the jury could believe that since Bancroft knew of the great danger and was in direct charge of the uncoupling he should have made certain that all the gas pressure had been removed before striking the coupling. There was evidence that the pressure must be bled off after the master valve is closed. In any event, all three of the primary negligence findings must be destroyed before there is an irreconcilable conflict under the rule laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W. 2d 985. See also, Bay Petroleum Corp. v. Crumpler, Tex., 372 S.W.2d 318.

There was evidence that the pressure gauge which showed the amount of pressure against the wireline valve was directly in front of Bancroft when he struck the valve with the hammer. In Issue No. 3, the jury found that his admitted failure to observe the gauge was negligence. This finding does not conflict with that in response to Issue No. 14.

A fair construction of the jury finding to Issue No. 5 is that the Cameo employees who were in charge of the removal of the wireline valve from the uni-bolt were negligent in not turning off the master valve before the removal operations were started. This finding is thereby harmonized with that to Issue No. 14. Appellant’s second and third points are without merit and are overruled.

Three damage issues were submitted to the jury and appellant asserts that the finding on each issue is so contrary to the undisputed evidence as to be manifestly unjust and to show that the jury was influenced by passion and prejudice. At the time of his death, Evans was almost sixty years of age, but was in good health. The jury found that Mrs. Evans, who was forty-eight years old at the time of his death, suffered a pecuniary loss of $22,400. James Evans, who was seventeen years old at the time, recovered $9,600, and his brother, Edgar, who was twelve years old, recovered $18,000.

Evans was strong and vigorous and had performed heavy work in oil fields most of his adult life. He married Mrs. Gladys Evans in 1937, and they had three sons, one of whom died in infancy. He was very industrious, but for several years before the accident, the oil drilling business was in a recession and Evans was unable to secure much work. He was qualified as a driller, but during the oil recession he worked almost exclusively at the lower-paying job of roughneck. Although he diligently searched for work, he secured very little and earned only an average of about $1,000 annually during the five years preceding his death.

The record shows that Evans was a very good and attentive family man. His wife was forced to teach school during these lean years, and, when Evans was not working, he continually kept busy helping her with household tasks. He was very close to his sons and gave them much moral and citizenship training and guidance. He was very much interested in their future and exerted a strong influence towards their desire for higher education. He helped the boys with their homework, taught them how to perform chores, and tried to impress them with the value of hard work. In addition to helping his wife with chores, he counselled and advised her. The sons were in good health and Mrs. Evans suffered only from nervous tension brought on by the deaths of her husband and her mother, within a period of two months. It is seen that the sons were at ages when they should be leaning more on their father for advice and guidance than on their mother.

Appellant makes no complaint of the instructions to the jury as to the items of damage that might be considered. They were instructed, in the case of Mrs. Evans, that “pecuniary benefits” meant not only money, but anything that could be valued in money, including the reasonable pecuniary value of the counsel, protection, advice, services, care and attention that she would in reasonable probability have received from her husband. Insofar as the two sons were concerned, the jury was instructed that “pecuniary benefits” meant not only money, but included the pecuniary loss of the nurture, education, advice, and moral guidance that each would in reasonable probability have received from his father. In each instance, the jury was instructed not to consider any other element of damage and not to allow anything for consolation, or for grief, sorrow or anguish, or for the loss of society, affection or companionship of deceased.

The rule to be applied by this Court, as set forth by an unbroken line of decisions, is stated in 17 Tex.Jur.2d 408, as follows: “In an action to recover damages in which the law furnishes no precise legal measure for their recovery, and they are un-liquidated, the amount to be awarded rests primarily within the discretion of the jury, and unless the award is so large as to indicate that it was the result of passion, prejudice, partiality, or corruption, or that the evidence had been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal.”

This rule has particular significance in a suit to recover damages for wrongful death. Great difficulty is encountered in determining the pecuniary value of a husband and father other than the amount of money actually contributed. Juries, from their own knowledge, experience and sense of justice must determine these factors under proper instructions from the court and uninfluenced by passion or prejudice. Louisiana & A. Ry. Co. v. Chapin, Tex. Civ.App., 225 S.W.2d 614, writ ref. Each case must he measured by its own facts and considerable discretion and latitude must necessarily be vested in the jury. Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228.

There is nothing pointed out by appellant, other than the size of the verdict, to indicate any improper motives on the part of the jury in finding any of these sums. It is seen that the verdict was well below appellees’ prayer for damages in the total sum of $350,000. Appellant cites cases decided prior to 1930 in which verdicts smaller than appellees’ were held excessive. It is well recognized that in the last decade the value of the dollar has decreased and verdicts in excess of those in this case have been approved. See Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830; Union Transports, Inc. v. Braun, Tex.Civ.App., 318 S.W.2d 927; Texas & N. O. R.Co. v. Landrum, Tex.Civ.App., 264 S.W.2d 530; 17 Tex.Jur.2d 613, § 7.

Little would be gained by a review of other cases, as each must primarily stand on its own peculiar facts. It is our opinion, after a review of this entire record, that although the damages were very substantial under the limited earning record of deceased, we cannot say that any of them is so excessive as to require a remittitur or reversal.

Appellant asserts in its fifth point that the trial court erred in overruling its objection to the submission of Issues Nos. 1, 3 and 5, as all three issues are shades of the same ultimate act and therefore gave undue emphasis to it. Trial courts should not give several shades of the same issue. Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280; Hodges, Special Issue Submission 133. Although we believe that appellees’ negligence theory could have been fairly submitted to the jury in fewer issues, we cannot say, from this record, that reversible error was thereby committed;. Rule 434, T.R.C.P. ;

The jury was instructed under each damage issue to consider no “element of damage” other than those therein specifically' stated. This instruction was proper and-necessary, as there was testimony of other items of damage which were not recover-, able. It followed the definition of “pecuniary benefits” and served to prevent the jury from considering unauthorized items of damage. This instruction would not-prevent the jury from considering factors favorable to appellant, such as the age, health and limited earnings of deceased compared to his living expenses. The trial court did not err in overruling appellant’s objections to this instruction in each damage issue.

The judgment is affirmed.

      .Tlie jury returned a verdict substantially as follows:
      1. Bancroft’s act of striking and loosening tlie coupling of the wireline valve at a time when gas from the well was exerting high pressure on and against the said valve was negligence.
      2. This negligence was a proximate cause of Evans’ death.
      3. The failure of Gamco employees to observe the pressure gauge on the wire-line valve before striking and loosening the coupling on the wireline valve was negligence.
      4. Such negligence was a proximate cause of Evans’ death.
      5. The failure of the Gamco employees to turn off the master valve on the well before removal of the wireline valve was negligence.
      6. Such negligence was a proximate cause of Evans’ death.
      7. Bancroft did not fail to keep a proper lookout for the safety of Evans before starting and attempting to remove tlie blow-out preventor.
      8. Conditionally submitted, and therefore not answered.
      9. Bancroft did not fail to give a proper warning to Evans before starting and attempting to remove the blowout preventor.
      10. Conditionally submitted, and therefore not answered.
      11. In the work being done at the time of and immediately before the accident made the basis of this suit the Gamco operator, Higginbotham, and his helper, Bancroft, had the right to control what Mr. S. B. Evans was doing and would do and how it was to be done.
      12. Immediately before the accident, Lee Craig began loosening the unibolt on the wireline valve without the knowledge of, and with no instructions in regard thereto from Bancroft.
      13. Immediately before the time Craig began to loosen the unibolt on the wire-line valve, Bancroft was in a position and engaged in activities so that he could not see whether Craig closed the master valve before beginning to loosen the said unibolt.
      14. Bancroft was not negligent in assuming that Craig had closed the master valve befóte beginning to loosen the unibolt on the wireline valve.
      15. Craig’s act in beginning to loosen the unibolt on the wireline valve without closing the master valve was not the sole proximate cause of the accident.
      16. Mrs. Evans suffered a pecuniary loss of $22,400 by the death of her husband.
      17. James Evans suffered a pecuniary loss of $9,600 by the death of his father.
      18. Edgar Evans suffered a pecuniary loss of $18,000 by the death of his father.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Joe MARTIN, Appellant, v. The ESTATE of C. H. GURINSKY d/b/a Gurinsky Cattle Market and Edward Rodriguez, Appellees.
    No. 11177.
    Court of Civil Appeals of Texas. Austin.
    April 1, 1964.
    .Rehearing Denied April 22, 1964.
    Edwards & De Anda, George E. Chandler, Corpus Christi, for appellant.
    Beckmann, Stanard, Wood & Vance, Richard C. Keene, San Antonio, Thomas C. Ferguson, Johnson City, for appellees.
   ARCHER, Chief Justice.

This appeal is from a judgment based on a jury verdict denying plaintiff any recovery growing out of a suit for damages for personal injuries and to property.

The accident occurred on U. S. Highway 281 in Blanco County, Texas, early in the night of December 28, 1960, when an automobile occupied by appellant collided with an upset cattle trailer owned by appellee Gurinsky Cattle Market and operated by Edward Rodriguez, its employee, which trailer had broken loose from a pickup truck.

The collision was on the down grade of a steep hill. Immediately after the upset and after the driver of the truck had alighted and picked up a flashlight, he ran toward the approaching car of the plaintiff waving the flashlight.

The jury exonerated both plaintiff and defendant of any acts of negligence and found that the accident in question was unavoidable, and did not award the plaintiff any damages fpr personal injuries but did allow property damages.

The appeal is founded on ten points-assigned as error by the trial court in submitting issue No. 14 inquiring whether or not the accident was the result of an unavoidable accident because there was no evidence, or that there was insufficient evidence to support the submission of such issue; that the answer of the jury is against all of the evidence and the overwhelming weight and preponderance of the evidence; that the answer of the jury to issue No. 1 that Rodriguez did not fail to have the pickup and trailer under proper control, because such finding is against all of the evidence and against the overwhelming weight and preponderance of the evidence ; because Rodriguez admitted that he did not have proper control of the truck and the trailer at the time and place in question; that the finding of the jury in answer to issue No. 3 that the failure of Rodriguez to place a lighted fusee on the roadway was not a proximate cause of the collision is against all the weight and the overwhelming weight and preponderance of the evidence; that the court erred in not setting aside the answer of the jury to issue No. IS that Martin was not entitled to any damages for his injuries and in not granting a new trial.

This case was submitted to the jury by 17 special issues and by its answers to issues Nos. 1, 3, 4, 5, and 6, the defendant Rodriguez was absolved from negligence in the manner of operating the pickup and in failing to place a lighted fusee on the roadway and did not fail to take such action to warn the plaintiff of the presence of the overturned trailer as a person of ordinary care would have done and the failure to remove the trailer from the highway before the collision was not negligence. (Issues Nos. 2, 3, S and 7 were conditional and were not answered.)

The jury found that Martin did not fail to keep a proper lookout, and did not fail to have his automobile under proper control and was not operating his automobile at a negligent rate of speed.

We believe that the issue of unavoidable accident was raised and that the evidence reasonably supports the findings of the jury.

The jury saw and heard the witnesses, and observed their demeanor and resolved; the fact issues as reflected by its answers to the issues and we believe it was justified! in its findings.

As stated the collision occurred on a misty night on a steep hill and both drivers had been going down the hill at a rate of no more than 25 miles per hour by the truck and 50 to 55 miles by the automobile, both vehicles were going south on a four lane highway.

Mr. Martin testified that he was driving at about 55 miles per hour south on Highway 281 on December 28, 1960, at about 8:30 P.M. and as he proceeded over the crest of a hill he noticed headlights in the road ahead of him and assumed they belonged to a vehicle coming towards him and as he passed this vehicle and cleared the glare he noticed for the first time an object across the road and attempted to avoid striking the object by turning his car to the right but struck the object and was thrown out.

Edward Rodriguez, one of the defendants called by plaintiff as an adverse witness* testified that he was employed by Gurinsky and was operating a truck trailer on the night of the accident and had come from San Antonio, Texas, to bring some cattle and to pick up four cows at Mr. McLean’s place and had done so and was returning to San Antonio at about 8:20 P.M.

The witness testified that the highway was wet and a mist falling and he was going down hill at about 25 miles per hour and in response to a question by plaintiff’s attorney as to why he was driving so slow, stated:

“A Well, sir, so I, you know, I was afraid it might whip.
“Q All right. In other words, if you drove any faster than twenty-five, you knew that trailer was going to whip; is that right ?
“A What?
“Q You knew that if you drove any faster than twenty-five the trailer was going to whip; is that right ?
“A When it got faster, when going down-hill, turned over, I was running about thirty when I turned over.
“Q Reason you drove twenty-five, though, was because you knew if ' you drove any faster the trailer would whip; isn’t that right ?
“A In other words, if you go to whipping, it will do it at more speed.
“Q That’s what I’m saying: If you drove any faster than twenty-five, you knew the trailer was going to go to whipping; isn’t that right?
| “A Yes, sir.
“Q All right. And you say you were going thirty at the time the trailer actually turned over?
“A That’s right.
“Q Now, is it easier or harder to control a trailer going down-hill or up-hill ? Let me rephrase that. Is it easier to control a trailer when you are driving up-hill or when you are driving down-hill ? Easier gaing up, isn’t it, as far as the whipping and other things to ?
“A Easier, yes.
. “Q Easier to control going up-hill. And you knew that before this accident happened, didn’t you?
a A Yes, sir.
“Q How long you been pulling trailers like that?
“A Oh, about forty-two years.
“Q All right. Now, as you started down the hill, you increased your speed, you say, to about thirty miles an hour ?
“A Yes, sir.
And the trailer did just what you knew it would do, it started whipping; isn’t that right? Q
‘A Started to whipping.
'Q Started to whipping. What did you do when it started to whipping?
‘A Well, I took my foot off the gas?
‘Q Took your foot off the gas?
‘A I was going about twenty-five. When it started going thirty I took my foot off the gas, when I seen it was going to whip.
‘Q All right. That was when you got up to thirty?
‘A Yes.
‘Q All right. Then what else did you do?
‘A I turned over at thirty.
‘Q You turned over at thirty?
‘A Around thirty, yes.
‘Q All right. Did you put your foot on the brake?
‘A No, sir.
‘Q Would it have been helpful if the trailer had had brakes? Do you think you could have controlled it better if the trailer had had brakes that you could have put on the trailer?
‘A I don’t think it would have helped it any.
‘Q Did you turn the wheel of your truck at all ?
'A Sir?
‘Q Did you turn the wheel of your truck at all?
‘A When the trailer jackknifed, that throwed me around.
'Q All right. So that once you got over twenty-five, and coming down-hill, you could no longer control the truck and trailer; is that right — once you got up around thirty ?
“A Well, it turned over at that speed.
“Q. Yes. You couldn’t control it any more; is that right?
“A Had no way of its whipping
“Q All right. That’s why you had been driving twenty-five miles an hour up to the top of that hill, isn’t it, so that that wouldn’t happen?
“A Yes.
“Q All right. Now, you say the trailer turned over and it whipped your truck around?
“A Yes, sir, jackknifed.
“Q Jackknifed and turned your truck around. Did the trailer break ■ loose from the truck ?
“A. It broke loose, yes.”

An unavoidable accident was defined in Dallas Railway & Terminal Company v. Darden, Tex.Com.App., Section B, 38 S.W.2d 777, opinion approved, as follows:

“An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise. If the accident complained of could have been prevented by either party, by the use of means suggested by common prudence, it was not unavoidable.”

It is not for an appellate court to determine the mental processes by which a jury reaches a verdict, but only whether there is. sufficient evidence to support the verdict. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600.

■ The test for determining if there is evidence of probative value to support a jury verdict'is whether reasonable minds might differ with respect thereto. Simmons and Simmons Construction Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415.

In McConnico v. Texas Power & Light Co., Tex.Civ.App., 335 S.W.2d 397, er. ref., n. r. e., the Court stated:

“A jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the::.' subject of inquiry. They are not compelled to credit all the testimony of any witness or to reject it all.”

Muro v. Houston Fire & Casualty Insurance Co., Tex.Civ.App., 329 S.W.2d 326, er. ref., n. r. e.; Freeman v. Canterbury Tex.Civ.App., 346 S.W.2d 955, no writ-history.

The jury found that the failure of Rodriguez to place a lighted fusee on the roadway immediately after the trailer overturned was not a proximate cause of the collision.

There is no conflict in the evidence as to whether Rodriguez placed a lighted fusee-in the road, the evidence is that he did not.:

As soon as Rodriguez saw what had hap-' pened to the trailer and when he saw the automobile lights approaching, he took a flashlight and waived it in an effort to warn the driver, but the driver continued, without decreasing his speed. There is no evidence that Rodriguez had any time to, place fusees on the roadway.

It is apparent that Rodriguez did everything that any one could have possibly-done during the interval after his truck, came to a rest and • before the collision occurred.

The rule is that if a person is guilty of negligence per se, he may go forward with the evidence and raise the issue of excusable violation and this Rodriguez did.

Loyd v. Rumbaugh Trucking Company, Tex.Civ.App., 313 S.W.2d 544, er. ref., n. r. e., and cases cited therein. "

Since thé jury having found that appellee Rodriguez was not guilty of any act of negligence, there is no theory on which appellant could rely to have a verdict rendered to support a judgment in his behalf and the answer to special issue No. IS of $0.0 becomes immaterial and harmless, even if the same might be error, a jury .finding on an immaterial issue may be disregarded. American Mutual Liability Insurance Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844; Freeman v. Canterbury, supra; Dunn v. Sears-Roebuck & Company, Tex.Civ.App., 371 S.W.2d 731, no writ history.

We do not believe that Rodriguez admitted as a matter of law that he did not have control of the truck he was driving.

The questions directed to Rodriguez were leading as counsel had a right to do, were,' as may be observed, in rapid fire order and directed to a witness of Mexican ancestry and who may not, as may be observed from his answers, as are set out herein- 1 above, have completely understood such ' -questions and such answers did not make an unequivocal and uncontradictable conclusion that he did not have control of the truck.

The jury was at liberty to reach its conclusion by blending all of the evidence admitted before them and are not compelled to credit all of the testimony of any witness or to repeat it all. McConnico v. Texas Power & Light Co., supra; Muro v. Houston Fire & Casualty Insurance Co., supra; Luvual v. Henke & Pillot, Division of Kroger Co., Tex.Civ.App., 366 S.W.2d 831, er. nef., n. r. e.

We have considered the authorities cited by appellant such as Shofner v. McKey, Tex.Civ.App., 345 S.W.2d 826, no writ history; Pinson v. Busby, Tex.Civ.App., 304 S.W.2d 413,. error dismissed and Buice v. Hicks Building & Equipment Company, Tex.Civ.App., 369 S.W.2d 624. See Hicks Pudding Equipment Company, Inc. et al, petitioners v. Alton P. Buice, respondent, 371 S.W.2d 44, Supreme Court

The judgment of the trial court is affirmed. '

Affirmed.

HUGHES, Justice

(dissenting). ,

In my opinion the testimony of the driver of the truck-trailer, Edward Rodriguez, constitutes a judicial admission that he was guilty of negligence in driving at a speed at which he knew the trailer would jackknife and capsize. Certainly the 'finding that he was not negligent in this respect is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. I would reach similar conclusions regarding the jury finding that Mr. Rodriguez did -not fail to have the truck-trailer under proper control. The trailer was wholly obstructing appellant’s side of the road. The only explanation of how it got there is the testimony of Mr. Rodriguez that his own negligence caused it to be there.

In my opinion the evidence does not raise the issue of unavoidable accident and an issue thereon should not have been submitted. There is no evidence that this collision occurred except as a result of negligence. The rain and mist had nothing to do with the accident. The truck-trailer did not slip or slide. Its lights were clean and bright. Its driver, Mr. Rodriguez, was well experienced. He simply drove at a speed which he knew would cause to happen what did happen. This constituted avoidable negligence, not an unavoidable accident. See Harrison v. King, 296 S.W.2d 344, San Antonio Civil Appeals, writ ref., n. r. e.

I understand the rule to be that it is not ordinarily reversible error to submit an issue which is not raised by the evidence. Because of the nature of this issue it is doubtful that such rule should apply here. Regarding such an issue Chief Justice Alexander said in Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301:

“The only legitimate purpose to be served in submitting unavoidable accident is to call the matter to the attention of the jury, so that it will not he overlooked, and so that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of. This purpose is fully accomplished when the jury is told that the occurrence in question was an unavoidable accident if it happened without the negligence of either of the parties to the suit.”

Referring to this language the Court in Herndon v. Halliburton Oil Well Cementing Company, 154 S.W.2d 163, El Paso Civil Appeals, writ dism., w. o. m., stated:

“It is heartening to find coming from the Chief Justice a suggestion there may be some suspicions as to the illegitimacy of this issue. It came and has remained somewhat in the role of a ‘sniper.’ It has resulted in much confusion and wrought great havoc on justice.”

It is reversible error to submit issues which serve no useful purpose but only tend to confuse and mislead the jury. H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, San Antonio Civil Appeals, writ ref., n. r. e.

The unavoidable accident issue gives a jury which does not wish to speak ill of either party an out. It affords an easy, pleasant way to resolve the controversy. Where the evidence, as here, does not justify its submission it has, in my opinion, a harmful effect upon the plaintiff.

I would not, however, reverse this case because of the submission of such issue because no objection was made to its submission upon the grounds indicated. In fact, no objection to its submission was made.

I would reverse and remand this cause and I, therefore, respectfully dissent.


text:
    Homer PUCKETT et ux., Appellants, v. W. A. FRIZZELL, Appellee.
    No. 39.
    Court of Civil Appeals of Texas. Tyler.
    March 19, 1964.
    Rehearing Denied April 16, 1964.
    John E. Heitler, Pope & Heftier; Tyler, for appellants.
    Ben Goodwin, Tyler, for appellee.
   SELLERS, Justice.

This suit was filed in the 114th District Court of Smith County by Homer Puckett and wife Nobie M. Puckett who reside in Harris County, Texas, against W. A. Friz-zell who resides in Smith County, Texas.

The suit grows out of a transaction between Plaintiffs Puckett and Defendant Frizzell, whereby the plaintiffs sold to defendant a house and lot in the City of Tyler, Texas. The dispute is over the agreed consideration for the property, it being the plaintiffs’ contention that the defendant agreed to pay them $3,600.00 and assume an outstanding indebtedness against the property in favor of the East Texas Savings and Loan Association of Tyler, Texas.

. The plaintiffs, in their petition, plead a mutual mistake, ignorant of the true meaning of the deed sent to them for their signatures, inadequacy of the price paid them in that the reasonable market value of the property was $6,500 and the price actually paid by the defendant was $3,600.00.

The plaintiffs seek to reform the instrument to show the true consideration. A trial amendment by the plaintiffs asked the Court for a money judgment in the amount of $3,600.00 in the event the Court finds they are not entitled to reformation of the deed.

■i .The defendant denied the allegation of ■the petition of the plaintiffs and alleges affirmatively that he agreed to pay only $3,-600.00 for the property. The case was tried before a jury; and at the close of the plaintiffs’ evidence, upon motion of defendant, 'the Court instructed the jury to return a verdict in favor of the defendant. From this judgment the plaintiffs have duly prosecuted this appeal.

The trade between the parties was consummated over the telephone in conversation between Mrs. Puckett and Mr. Frizzell. Mrs. Puckett testified as follows :

“A. Mr. Arthur Frizzell.
“Q. And at that time how did you contact him?
“A. I contacted him first by letter.
“Q. At that time and in that letter did you set out what you wanted to sell the property for ?
“A. Yes, sir.
“Q. Would you tell the Jury what that was, please?
“A. The price that I offered the place for sale for was $3750.00, including the furniture, or $3600.00 • without the furniture, for our equity, and he would assume the loan of approximately $2600.00.
“Q. Now, go back, Mrs. Puckett, when did you first become owner of this property?
“A. In June of 1951.
“Q. And what was the price paid ?
“A. $7000.00.
“Q. Now, after this letter to Mr. Friz-zell, did you ever hear from Mr. Frizzell?
“A. I had a letter from him.
“Q. Do you recall what that letter said?
“A. To contact him by telephone collect, because he was interested in the property.
“Q. Now, did you do that?
“A. I contacted him by telephone; but not collect.
“Q. Do you recall about when that was?
“A. Not the definite date. Sometime the latter part of January of ’61.
“Q. At the time that you talked to Mr. Frizzell, what, if anything, was said about the property?
'“A. He wanted to look at the place and would call us hack the next night. We called him one night and he wanted to look at the place and would call us back the next night.
“Q. And he did call you?
“A. He did call us back.
“Q. What did he say at that time regarding the buying of the property?
“A. He agreed to pay $3600.00 for our equity and to assume the loan.
“MR. GOODWIN: Just a minute, please, I am going to object to that as not being responsive to the question which he asked.
“THE COURT: Sustain the objection. The question was, ‘What did he say’. Go ahead.
“Q. Exactly, what did Mr. Frizzell say?
“A. He agreed to pay $3600.00 for our equity.
“MR. GOODWIN: Your Honor, that is still not—
“THE COURT: I sustained the objection now, Mrs. Puckett. Your answer is a conclusion, so you answer his question by telling what Mr. Frizzell said to you on that occasion. Go ahead.
'“A. .He said he would pay $3600.00 for the equity, including the furniture.
' “Q. Now, did you hear anything after that date from Mr. Frizzell, or anyone else, concerning the property ? Strike that. What did you reply to Mr. Frizzell at that time?
'“A. I accepted the offer of $3600.00, including the furniture, and 'he was to assume the loan; and I suggested that he go to East Texas Savings & Loan where the loan was located, and complete the deal.
“Q. Who did you hear from next in connection with the sale of the property?
“A. Mr. Garmon.
“Q. Did you receive a letter or something from him?
“A. With a letter and a deed ready to be signed.
“Q. I hand you what is shown as Plaintiffs’ Exhibit #2. Is that the letter you are speaking of?
“A. It is.
“Q. That is dated February 3rd, is it not?
“A. Yes, sir.
“Q. And I hand you what has been marked as Plaintiffs’ Exhibit #3, a Warranty Deed. Is that the deed that was enclosed?
“A. Yes, sir.
“Q. After you received the deed, what did you do with it?
“A. We had it signed before a Notary and returned it to Mr. Garmon.
“Q. I hand you what has been marked as Plaintiffs’ Exhibit #4 — it is Plaintiffs’ Exhibit #4. Is that your letter to Mr. Garmon?
“A. Yes, sir.
“Q. And in that letter was the deed also. Is that correct?
“A. It was returned with the deed.
“Q. When was the next time you heard anything concerning the sale of this land? This property?
“A. When I received the checks.
“Q. And was that from Mr. Garmon also?
“A. From Mr. Garmon.
“Q. I hand you Plaintiffs’ Exhibit #5. Is that the letter?
“A. Yes, sir.
“Q. That is dated February 14th?
“A. February 14th.
“Q. There were two checks in there, in that letter?
“A. Yes, sir.
“Q. What did you do upon receipt of those two checks ?
“A. I returned them to East Texas Savings & Loan.
“Q. Why did you return them to East Texas Savings & Loan?
“A. Because the transaction was not carried out—
“MR. GOODWIN: Your Honor, I object to that, asking why she did so and so. That is irrelevant and immaterial to this matter and hearsay as to my client — what she thought about a certain situation.
“THE COURT: Overrule.
“A. Because the agreement, the transaction was not carried out according to the agreement.”
Mr. Frizzell testified as follows:
“Q. Mr. Frizzell, you are the defendant in this case, are you not?
“A. Yes.
“Q. I would like to ask you whether or not or who did, if you know, file this Deed of record from the Pucketts to you?
“A. No, sir, I don’t.
“Q. You did not do it?
“A. No.
“Q. And you did not attach the Internal Revenue stamps back here?
“A. No, sir.
“Q. When was the first time that you saw this instrument?
“A. Through the mail, when they sent it to me.
“Q. Beg your pardon?
“A. When they sent it to me.
"Q. Did they send it to you, or to East Texas Savings and Loan?
“A. In other words, I got it through— it was filed through the Courthouse, wherever it came from.
“Q. In other words, the first time you ever saw it was after it was sent to you from the County Clerk’s office?
“A. Yes, sir.
“Q. You never saw it before then?
“A. I don’t remember whether I did or not.
“Q. Well, did you see it — you heard! Mr. Garmon testify that he called you and you came down and he showed you the Deed and letter and that you went ahead and paid?
“A. Yes, sir.
“Q. So, that is true, is it not?
“A. Yes, sir. Now, are you speaking-of when I first seen it, or when-, the stamps were on it ?
“Q. No. When you first saw it. Maybe that is where I am misunderstanding you. Before it was filed,, when you saw it?
“A. Yes.
“Q. And that was over in Mr. Gar-mon’s office?
“A. Yes.
■“Q. That is where our difficulty was. I didn’t meán to say it that way. Then after you saw it in Mr. Gar-mon’s- office and made out some checks, then the next time you saw it was when it came back from the County Clerk’s office, after it had been recorded ? ■
•“A. Yes.
“Q. And you did not carry it over there ?
■“A. No, sir.
“Q. The land described in that Deed, in this Deed, is the same land which is known as 707 South Saunders Street here in Tyler, Smith County, Texas, is it not?
“A. Yes, sir.
“Q. Now, Mr. Frizzell, did you ever have a telephone conversation with Mrs.- Puckett concerning the purchase of that piece of property?
-“A. Yes, sir.
“Q. Do you recall about when that was?
MA. Well, the date, I don’t remember.
'“Q. The last part of January or first part of February, something like that ?
■“A. Yes.
'“Q. And you heard Mrs. Puckett testify as to what she stated the agreement between you and her was, did you not ?
■“A. Yes.
“Q. What do you say the agreement was?
'“A. The agreement was, she called us. We, of-course, sent the letter and she called us collect. She called us collect, and .we "talked on the price, of it.' She wanted thirty seven fifty.for'the .property and the furniture;-:and I told her I wouldn’t give thirty seven fifty, I would give her thirty six húndréd. And she talked to her husband — I could hear her over the phone — she talked to her husband, and he said to take it, and she advised me to , go to East Texas Savings & Loan:-
“Q. And you went down to East Texas Savings & Loan ?
“A. Yes, sir.
“Q. Who did you see down there ?
“A. Jack Garmon.
“Q. Is that Mr. Garmon who testified earlier ?
“A. Yes, sir.
. “Q. And what did you do down there ?
“A. I just told him that I had'talked to Mrs.' Puckett, and she had agreed to take $3600.00 for the property, and that they had a note on it, and they was to take their part of it and send her the balance. They knew all about the transaction, she had already made it, and I just told him, and he taken care of it from there on.
“Q. Now, Mr. Frizzell, you heard, as I said, what Mrs. Puckett said, so there must have been some— might have been some mistake as to what the actual consideration was, was there not?
“A. If there was, it was all on her part, because we didn’t talk about it that way.
“Q. You said $3600.00 on your part? Is that what you offered her?
“A. Thirty-six hundred, dollars for the property — furniture and house.
“Q. You didn’t hear Mrs. Puckett say, ‘Thirty-six hundred dollars for our part’ ?
“A. No, sir, he did not, he just said to accept it. That’s all he said
“Q. Did you talk to Mr. Puckett too?
“A. No, sir.”

Mr. Garmon prepared the deed after talking to the defendant and sent it through the mail to Mr. and Mrs. Puckett. His letter enclosing the deed is as follows:

“You will please find enclosed a Deed on the property you and your husband are selling to Mr. Frizzell in Tyler.
“If you and your husband will execute this Deed before a Notary Public and have it notarized and return to us, we will close out this deal with Mr. Frizzell. I will collect a check from Mr. Frizzell for the amount he owes you on it, if you will let me know in your letter.
“You will have some expenses involved in this, that is $15.00 for the attorney drawing the Deed, $10.00 for the abstracter certifying your abstract to date and a small amount for revenue stamps to go on the Deed.
“If there is any other question you would like to have answered on this, please do not hesitate to call on me.” The enclosed deed was as follows:
“STATE OF TEXAS ] 1513
•“COUNTY OF SMITH J KNOW ALL MEN BY THESE PRESENTS :
“THAT WE, H. D. PUCKETT and wife, NOBIE MILLSTID PUCKETT, of the County of Harris, State of Texas, for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS, cash, and other good and valuable consideration, to us in hand paid by W. ARTHUR FRIZZELL, the receipt of which is hereby acknowledged and confessed, and the further and additional consideration that the Grantee herein does hereby bind and obligate himself to assume, and does hereby assume the unpaid balance ($2,655.38) due on that certain promissory note in the principal sum of FOUR THOUSAND, FOUR HUNDRED TWELVE AND 52/100 ($4,412.52) DOLLARS, which note is fully set out and described in a certain Deed of Trust, dated February 22, 1954, executed by MRS. NOBÍE H. MILLSTID, to LEO CHESLEY, Trustee for the East Texas Savings & Loan Association, Tyler, Texas, filed under record in the office of the County Clerk of Smith County, Texas, under file number 1927, reference to which is hereby made for a more complete description of said note and indebtedness; have Granted, Sold and Conveyed, and by. these presents do Grant, Sell and Convey unto the said W. ARTHUR FRIZ-ZELL, of the County of Smith, State of Texas, all that certain lot, tract or •parcel of land situated in Smith County, Texas, to-wit: * * *
“TO HAVE' AND TO HOLD the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said W. ARTHUR FRIZZELL, his heirs and assigns, forever, and we do hereby bind ourselves, our heirs, executors and administrators to Warrant and Forever Defend,-all and singular the said premises unto the said W. ARTHUR FRIZZELL, his heirs and assigns, against every person .whomsoever lawfully claiming or to claim the same or any part thereof.
“WITNESS- OUR HANDS this the 4th day of February A. D. 1961.
: . “H. D. Puckett
. “Nobie Millstid Puckett”

Mrs. Puckett returned the deed, duly executed, to Mr. Garmon, and her letter is as follows:

“Enclosed you will please find the papers signed and notarized.
“Mr. Frizzell will owe us three thousand six hundred dollars ($3600) on the property.
“We are under the impression that the purchaser (Mr. Frizzell in this case) bears the expense of the transfer. If we are wrong, however, we will send you a check for the amount, or you may deduct it from the $3600, and please send us a statement.
“We have a copy of last year’s tax statement, and will appreciate your sending us a statement of the interest and insurance for tax purposes.”

In reply to her letter and the deed, she received the following from Mr. Garmon:

“You will please find enclosed a check from W. A. Frizzell for $891.55 and also one from East Texas Savings and Loan Association for $76.22. These two checks are the proceeds from the sale of your property in Tyler.
“To account for your money, I understand that W. A. Frizzell was to pay you $3,600.00 for the property. We deducted the pay off of your loan in the amount of $2,668.66 and also deducted $15.00 for the attorney drawing the Deed, $4.40 for revenue stamps to go on the Deed, $13.00 abstract certifications and $7.39 for your part of this years taxes. I believe this will leave you a net figure of $891.55. We are also sending your our check for $76.22, which was the amount of money in your taxes and escrow account.
“If you have any further questions, please feel free to call upon us.”

In reply to this letter, Mrs. Puckett wrote Mr. Garmon:

“You will please find enclosed the check from Mr. Frizzell in the amount of $891.55. We arc returning the check because it is not according to our agreement. We, therefore, ask you to read the previous letter to you and the one written to Mr. Frizzell. In each letter it was clearly stated that the consideration was $3600 for our equity.
“We are asking, therefore, that the proper amount, $3600, be paid for our equity, or the property be deeded back to us.
“We are also returning E. Tex. S & L Check for $76.22.
“Please give this your immediate attention.
“Mr. Frizzell knows the agreement stated in the letter besides the telephone conversation in which the same agreement was made.”

We are of the opinion that appellants’ pleadings and evidence do not authorize a rescission or reformation of the deed between the parties. If there was a mistake in drafting the instrument as to the consideration, it was at least not mutual; and in order to reform or rescind a deed, fraud, accident or mistake must be alleged and proved. The deed between the parties is regular in all respects, and the only dispute between the parties is as to the true consideration. The appellant testified that she was to receive $3600.00 and appellee was to assume the loan. The appellee testified that he was to pay $3,600.00 for the property.

It is now well settled that, as between the original parties, it is not necessary to allege fraud, accident or mistake in order to show the true consideration for a conveyance. The early case of Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253, 52 L.R.A. 162, opinion by Judge Gaines, discusses the issue at some length and sustains the principle.

In the case of Whitehead v. Weldon, Tex.Civ.App., 264 S.W. 958, 959, Judge Blair had this to say:

“This complaint is not sustained;. The principle admitting parol evidence to' vary the consideration recited in a. deed does not rest upon the ground of fraud, accident, or mistake; and therefore it is not necessary, as a basis for the admission of such evidence, that the pleading should contain such an allegation: ■ * ■ * *
“As.a general rule, the recitals of a deed are not conclusive as to consideration, and inquiry by parol and extrinsic evidence may be resorted to to show the real consideration. 22 C.J. 1157, and cases cited under note 53.”-

In the case of Cochell v. Cawthon, Tex.Civ.App., 110 S.W.2d 636, the rule is stated as follows:

“We are, of course, familiar with the rule that parol evidence is not admissible to contradict or vary the terms of written contracts and documents, and when such documents are executed and delivered, they automatically become effective in accordance with the terms and purposes evidenced by the language in which they are written. But there are exceptions to the general rule, and one of those exceptions is that parol testimony may be received to prove that the consideration recited in deeds or other written instruments was not in fact paid. Lanier v. Foust et al., 81 Tex. 186, 16 S.W. 994; Silliman v. Oliver, et al. (Tex.Civ.App.) 233 S.W. 867. The exception to the rule is sufficiently extensive to allow proof of other and additional considerations to those that are expressed. Taylor v. Merrill, 64 Tex. 494. These exceptions are as well established as the rule itself.”

There are many cases sustaining this rule, but the above are believed to be sufficient to sustain our holding that the evidence raises an issue of fact to go to the jury as to the true consideration for the conveyance.

Mrs; Puckett’s testimony that Frizzell assumed the- debt against the property is not m dispute since the deed itself provides the assumption, and this is as. binding on the appellee as the deed itself. This leaves only the question as to whether or not the total consideration was to be $3,600.00 and the assumption of the debt or just $3,600.00 as contended by appellee. A fact issue is thus presented.

The judgment is reversed and the cause remanded.


author: MASSEY, Chief Justice.

text:
    Roy L. BRUCE, Appellant, v. DENTON COUNTY ELECTRIC COOPERATIVE, INC., Appellee.
    No. 16507.
    Court of Civil Appeals of Texas. Fort Worth.
    March 27, 1964.
    Rehearing Denied April 24, 1964.

      Coleman & Whitten, and Royce Whitten, Denton, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellee.
   MASSEY, Chief Justice.

From a judgment for the defendant Denton County Electric Cooperative, Inc., in a suit for personal injury damages, plaintiff Roy L. Bruce appealed.

Judgment affirmed.

A man by the name of Harper Sinclair owned a farm in Denton County. By rights acquired under an easement the defendant Cooperative had maintained its power line at all times in question (and for some time prior to plaintiff’s injuries), energized with an electric current, upon and across the Sinclair property. In the Spring of 1961 Sinclair decided to build a barn. As a site therefor he selected a point directly under the Cooperative’s power transmission line. Construction activities followed and reached a point where there was a roof on the structure. Plaintiff was employed to do construction work thereon by the contractor and pursuant to his work went upon the roof where his head came in contact with an energized wire, with another part of his body in contact with a “ground” wire. He received a charge of electricity in his head and body which caused and resulted in his severe bodily injuries.

Mr. Sinclair had at one time been a customer of the Cooperative. During such period the latter concern had furnished power for his use by attaching a service wire to its transmission line across his property. Sinclair thereafter ordered discontinuance of such service. In obedience to his order the Cooperative “cut off” the electric current in the service wire hut did not “cut off” the electric current in the transmission line. Sinclair thought that the Cooperative had “cut off” the electric current in the transmission line in such manner that none of the wires upon or over his property was carrying electric current. In this he erred, for it was only the service wire which was de-energized. Sinclair had not the right to require that the transmission line be de-energized, and he did not request that the Cooperative de-energize the same. Neither had he ever been informed by anyone connected with the Cooperative that the transmission line had been de-energized. Belief that the transmission line was “dead” was based upon a mere erroneous conclusion and assumption by Sinclair. It is immaterial here whether Sinclair was negligent in connection therewith.

The Cooperative did not know and was not “on notice” that Sinclair was erecting or would erect a barn under its transmission line.

Laboring under the aforementioned mistaken assumption that the transmission line was de-energized above the place for construction activity, Sinclair informed the plaintiff through the medium of oral communication that the electric power had been “cut off” and that the presence of the line proximate to the area, in which plaintiff’s performance of work required his presence, constituted no hazard. Acting upon such oral communication and representation, the plaintiff caused and allowed his head and body to come in contact with the energized wire and the "“ground wire”.

In the submission of the case to the jury the trial court, over plaintiff’s objection, submitted Special Issue No. 17, reading as follows: “Do you find from a preponderance of the evidence that with the barn in question being erected under the line in question that the statement, if any, made by Harper Sinclair to or in the presence of Plaintiff, Roy L. Bruce, that the line in question was dead, was not the sole cause of plaintiff’s injuries, if any?” The jury’s answer was: “It was the sole cause.”

Plaintiff’s objection to the submission of Special Issue No. 17 included the complaint that the inquiry was upon whether a mere statement constituted the “sole cause”, and that the statement standing alone, under the evidence, could not have constituted the sole cause of plaintiff’s injuries and was not an ultimate issue. We agree. Obviously it was action taken by the plaintiff in reliance upon the erroneous or mistaken representation of Sinclair which resulted in the injuries he sustained. The nature of the inquiry would not permit any implied finding by the court curative of the defect or deficiency in the special issue under provisions of Texas Rules of Civil Procedure, rule 279, “Submission of Issues”. Therefore the jury’s finding in answer to Special Issue No. 17 may not be considered as providing support for the judgment. We have no doubt, however, but that the jury’s answer to the special issue did reflect the jury’s belief and finding that Sinclair did state that the line was de-energized.

Nevertheless we are of the opinion that there is adequate support for the judgment in other respects, both under the law and in view of the verdict of the jury aside from its answer to the issue on “sole cause”.

The court defined the term “unavoidable accident” to mean an injury which was not proximately caused by the negligence of the plaintiff or of the Cooperative, its agents, servants and employees. There was no objection to the definition.

Neither was there any objection to the unavoidable accident issue. In answer thereto the jury found that plaintiff’s injuries were the result of an unavoidable accident.

The jury found that the Cooperative was not negligent in failing to cut off the power from the distribution line (herein-above spoken of as the transmission line); the failure of the Cooperative to maintain its distribution lines at a height of at least 22 feet above the ground across the property of Harper Sinclair at the place where the barn was being constructed was not a proximate cause of plaintiff’s injuries; and that though the Cooperative failed to maintain its distribution lines at a height that was reasonable and prudent under the conditions then existing, such failure was not negligence. The answers were to issues submitting plaintiff’s theory of recovery. Plaintiff did not object to any of the special issues in reply to which the jury made the foregoing findings, nor to any definition of a legal term important to be considered in connection therewith.

Plaintiff, by its point of error No. 5, contends that the trial court erred in overruling his motion to instruct the jury upon the law relative to the minimum height for clearance of power lines across open fields and pastures, after the jury had sent written questions to the judge of the court during its deliberations. It is noted that the parties to the litigation differ upon the applicable law in the respect mentioned, particularly as applied to the statutes regulating the Cooperative. We think this of no consequence in the instant case, it being noted that the jury deemed the failure of the Cooperative to maintain its lines at a reasonable and prudent height (a fact it did find) not to have amounted to negligence under the circumstances of the case, and further, that the jury did not deem the failure on the part of the Cooperative to maintain its lines at a height of 22 feet above the ground to have amounted to a proximate cause of the plaintiff’s injuries.

The jury sent in two notes. The first read: “Question: Re: Special Issue No. 4. Why was 22 feet established as a minimum height for the wire clearance under conditions existing on May IS, 1961? Cleve B. Waddell, Foreman.” The court answered as follows: “Ladies and Gentlemen of the Jury: I am sorry I cannot answer your question. Please go by the charge. Please return this note when you are finished with your deliberations.” The second note read: “Question: Is there in evidence a specified required height for power distribution lines across open fields or pastures?” The court answered as follows : “Ladies and Gentlemen of the Jury: If you are in dispute as to the evidence of any given witness, if you will specify the witness and the portion of the testimony that is in dispute, the Court Reporter will read the part specified to you.”

Under plaintiff’s own theory of applicable law the minimum height of the lines in question should have been at least 22 feet above the ground. The jury refused to find that the Cooperative’s maintenance of the lines at a height which was lower than this amounted to a proximate cause of plaintiff’s injuries. In another part of the charge the jury refused to find the Cooperative guilty of negligence under the circumstances existent in maintaining its lines at whatever was the height the jury found them to be. Even assuming negligence, the plaintiff was charged with the burden of not only proving that the Cooperative’s act, or omission to act, amounted to a proximate cause of his injuries, but further, was charged with the burden of persuading the jury to so find. The jury refused to make the finding. The point of error is overruled.

The remaining points of error present the contention that “but for” the court’s erroneous submission of Special Issue No. 17 upon the question of “sole cause” the jury would “in all probability” have found the Cooperative guilty of negligence amounting to proximate cause of the plaintiff’s injuries in answering other' issues. Plaintiff’s counsel argues that with the jury having erroneously considered the “sole cause” issue, and having answered it in the affirmative and under the court’s instruction that there could be only one “sole cause”, it felt obliged to answer the other issues submitting the plaintiff’s theory against plaintiff’s contentions. Essentially, we consider the argument to he that T.R. C.P. 434, “If Judgment Reversed”, has application to the situation and that the court’s erroneous submission of Special Issue No. 17 was reasonably calculated to cause and probably did cause the jury to return a verdict other than that it would have returned but for the error.

We overrule the contention. In the first place we do not know but that Special Issue No. 17 was the last answered of the special issues. Certainly, we do not know that the jury ever considered the matter of comformity in the answers it returned. The plaintiff has not exhibited any reversible error.

Although we have at an earlier point stated that the “sole cause” issue was erroneous, we should not be understood as having held that the issue of “sole cause” or “sole proximate cause” was not in the case. Indeed, our opinion is to the contrary. It was the non-negligent action taken by the plaintiff in justifiable reliance upon the erroneous representation of Harper Sinclair which was probably the “sole cause” of the accident and resultant injuries. We have little doubt but that the jury so believed, and thought they were so finding by their answer to Special Issue No. 17. See Hodges on Special Issue Submission in Texas, pp. 52 & 58, “Inferential Rebuttal Issues”, § 19, “Common Issues in Tort Cases”, and § 22, “Sole Proximate Cause”.

There is an additional reason why we believe that the defendant’s judgment in this case should be affirmed. It is to be remembered that the Cooperative did not know and was not charged with knowledge that Sinclair would attempt to build a barn under its lines, incident to the construction of which workmen would necessarily go upon it to work on the roof. Though the danger in the maintenance of the Cooperative’s lines at a height which constituted negligence on its part might properly be found to have been the proximate cause of injury to some person or damage to property under other circumstances, it does not follow that it could be properly found under the circumstances-of this case.

From the standpoint of the Cooperative the erection of a barn under its transmission line was not foreseeable. A prior and remote cause cannot be made the basis for an action for damages if it does nothing more than furnish the condition or give rise to the occasion by which the injury was made possible if the injury is the result of some other cause which reasonable minds would not have anticipated, even though the injuries would not have happened but for such condition. Even assuming negligence on. the part of the Cooperative in every respect charged by the plaintiff, we think that the proximate cause of the injuries was plaintiff’s nonnegligent contact with the Cooperative’s lines, caused and occasioned by reason of the erroneous representation made by Sinclair that they were not energized or charged with electricity.

The active cause of plaintiff’s injuries was wholly independent of the negligence, if any, of the Cooperative, and wholly disconnected therefrom. Under the circumstances of the case we believe that the Cooperative’s negligence, if any, should be properly treated as a prior and remote cause of the injuries. See Panhandle &. S. F. Ry. Co. v. Sledge, 1930 (Tex.Civ.App., Amarillo), 31 S.W.2d 146, affirmed (Tex.Com.App.) at 45 S.W.2d 1112, and the other authorities discussed in the opinion of the Amarillo Court.

Judgment affirmed.