author: DUNAGAN, Chief Justice.

text:
    Mrs. Rae Jean PARMLEE et al., Appellants, v. TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellee.
    No. 51.
    Court of Civil Appeals of Texas. Tyler.
    July 9, 1964.
    Rehearing Denied July 23, 1964.
    W. James Kronzer, Hill, Brown, Kron-zer, Abraham, Watkins, Steely, Jerry V. Walker, Fulbright, Crooker, Freeman, Bates & Jaworski, John A. Embry, Jr., Lockett, Embry & Sharp, Houston, for appellants.
    John F. Heard, Baker, Botts, Shepherd & Coates, Houston, for appellee.
   DUNAGAN, Chief Justice.

This is a case instituted under the terms and provisions of the Texas Wrongful Death- Act, being Article 4671 Vernon’s Ann.Rev.Civ.St., arising out of the death of Glen don Cherry Parmlee, Jr., who was fatally injured in a vehicular collision occurring about five miles north of the town of San Manuel in Hidalgo County, Texas, on U. S. Highway No. 281 on June 10, 1952. At the time of the fatal accident Glendon Cherry Parmlee, Jr., was operating his vehicle in the scope and course of his ■employment for A. P. Gary Company. Death compensation benefits were paid to the other appellants by intervenor, Royal Indemnity Company.

The other vehicle involved in the collision was owned and operated by William W. Farmer, Jr., a railroad engineer in the •employ of Texas & New Orleans Railroad Company, who was at the time of the collision proceeding to report to a new temporary job assignment in McAllen, Texas. Appellants sought recovery against the ap-pellee, Texas & New Orleans Railroad •Company, on the theory of respondeat superior.

Appellee, Texas & New Orleans Railroad Company, moved for summary judgment on the grounds that at the time of the fatal accident Farmer was not as a matter ■of law engaged in the course and scope of his employment. No contention is made or raised with respect to any other features of the controversy. Following a hearing on said motion for summary judgment the Trial Court, pursuant to Rule 166-A, Texas Rules of Civil Procedure, concluded there was no genuine issue of fact as to whether Farmer was in the course and scope of his employment for appellee at the time of the tragedy, and a take-nothing judgment was entered against all appellants. From this action appellants duly perfected their appeal to the Court of Civil Appeals for the First Supreme Judicial District of Texas, and the cause was ordered transferred to this court on an equalization of the dockets.

Since this is a summary judgment action under Rule 166-A T.R.C.P., we are governed by well-established rules announced by our Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Neigut v. McFadden (Tex.Civ.App.), 257 S.W.2d 864; Achterberg v. Gillett (Tex.Civ.App.), 322 S.W.2d 306 (writ ref. n. r. e.); Statham v. City of Tyler (Tex.Civ.App.), 257 S.W.2d 742 (writ ref. n. r. e.); Seale v. Muse (Tex.Civ.App.), 352 S.W.2d 534.

The sole question presented on this appeal is whether the appellants, sustained their burden under Rule 166-A T.R.C.P., by demonstrating, through the medium of the pleadings and evidence in support of said motion, that Farmer was not acting within the course and scope of his employment for the appellee, Texas & New Orleans Railroad Company, at the time of the collision with an automobile driven by Glen-don Cherry Parmlee, Jr. To arrive at an answer to this question, we have carefully examined the pleadings and supporting evidence. The record consists of the appellants’ original petition, defendant’s original answer, Intervention of Appellant, Royal Indemnity Company, Plaintiffs’ Request for Admission of Facts, Defendant’s Answer to Such Request for Admission of Facts, Ap-pellee’s Motion for Summary Judgment and Appellants’ Reply to Appellee’s Motion for Summary Judgment. The record contains the following evidence: Deposition of E. S. Lohrke, Deposition of W. H. Higgins, Deposition of Hazel Martha Farmer, widow of William Walter Farmer, and Agreement between Texas & New Orleans Railroad Company and the Brotherhood of Locomotive Engineers, governing rates of pay and working conditions for engineers which were in effect at the time of the collision, the subject of this lawsuit.

Mr. Lohrke was the Assistant Manager of Personnel for the railroad and resided in Houston. He handled labor agreements and contracts. At the time of the accident he was employed in the capacity of a locomotive engineer.

In 1952 he was the local chairman for the Brotherhood of Locomotive Engineers in San Antonio. He represented 160 men in dealing with contract matters with the railroad. He acquired familiarity with the methods of bidding on jobs or the assigning of work on jobs.

The effect of Mr. Lohrke’s testimony was that Mr. Farmer, in traveling to McAllen to report to the job to which he was assigned, could use any form of public transportation, or any other form of transportation including his own private automobile and, if ordered by the company to deadhead, he would use company transportation; that Farmer was not deadheading on this occasion. When a man bids on an assignment or is forced upon an assignment, it is up to him normally to travel in his own fashion as he chooses and at his own expense and normally that is true after all assignments and he did so in reporting to this assignment at McAllen.

Mr. Lohrke gave the following testimony:

“Q. You say he could use any form of public transportation or his own car. If he did so and if he was voluntarily going, would he receive any form of reimbursement from the railroad for that, during that period of time?
“A. • No, sir.
“Q. All right. But suppose he was one of these men that were forced to go; suppose he was the low man on the totem pole, so to speak, and given instructions to go, what would be the situation there? Would he get any reimbursement if a passenger train were not available? Or would he get any form of reimbursement for his expense?
“A. No, sir.
“Q. In no case would he get any reimbursement at all, mileage, or payment for his transportation?'
“A. No, sir, not unless he was ordered to deadhead at the instance of the company; and he would then be instructed as to turn in a bill for the car expense.”

Mr. Lohrke further testified that most men used their private automobiles for-their own convenience.

Mr. Higgins, who was division superintendent for appellee at the time of this accident (who retired in 1954), testified in-substance that Farmer was not paid any form of compensation for the time utilized' in traveling from San Antonio to McAllen and that the time did not start until he-went on actual performance of duty at Mc-Allen which destination he did not reach-due to the collision. That he (Farmer) would receive no form of compensation-until he arrived and reported at McAllen; that Farmer in traveling from San Antonio-to McAllen was not deadheading. He further testified that when one was given an-assignment such as Farmers that they usually would go by automobile to the place he was assigned and would not be entitled to-any form of reimbursement of the expenses-incurred in the use of the automobile. He-did not know whether Farmer would go in-his private car or ride with someone else..

Mrs. Farmer testified in part as follows
“Q. Had your husband ever had occasion to go off on assignments to other cities, other than San Antonio, before?
“A. Yes.
“Q. Had he on those occasions used his own car?
“A. Yes.
“Q. Did he occasionally use trains?
“A. Yes.
“Q. What circumstances would bring about his use of his car?
“A. Well, when the job was over he could get home sooner by not having to wait and take a train. That is why he would take the car.
* * *
“Q. Do you know whether or not the railroad knew he would use his car in going to jobs they would assign him?
“A. No. I don’t know whether they did, or not.
“Q. Do you know whether or not he was compensated in any fashion for his car? ■
“A. I don’t know. Really and truly I don’t.
“Q. You don’t know whether he would be entitled to some allowance for the use of his car, or not, under certain circumstances.
“A. No.
* * ^
“Q. And as to whether or not he could have taken the train, or not, you don’t know?
“A. I am sure there would have been been some way for him to get there besides taking the car.
“Q. By bus?
“A. Yes.
“Q. Based on previous conversations you may have engaged in with your husband, did you have an idea some money or some form of compensation of some kind was paid when he used his car?
“A. No. He just made the money and we didn’t talk too much about it.
«* * *
“Q. And he was what was called a demoted engineer?
“A. Yes.”

Upon cross examination by Mr. Heard she testified as follows:

if * * *
“Q. Do you recall having a discussion after he decided to go on down and him talking to you about whether you could do without the car?
“A. Yes. He asked me several times if I was sure because we lived out of town a little ways and it would be a little inconvenient to be without the car.
“Q. Do you recall him saying he wanted to take the car to avoid losing a couple of days enroute by going some other way?
“A. Well, no. The real reason he said he would like to take the car was so when he was through down there he wouldn’t have to wait on a way to get back. He could come on home.
“Q. At times, I suppose, he got to some of the assignments by bus?
“A. I think mostly on the train.”

The record is entirely devoid of evidence relative to the right of control of the servant by the master.

The law is well established in this state that the test of a master’s liability for negligent acts of his servant is whether the master had the right and power to direct and control the servant in performance of the causal act or omission at very instant of the occurrence of such act or neglect. American National Insurance Company v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409; Glasgow v. Floors, Inc., of Texas (Tex.Civ.App.), 356 S.W.2d 699 (no writ history) ; Kennedy v. American National Insurance Company, 130 Tex. 155, 107 S.W.2d 364, 111 A.L.R. 916; Antilley v. Jennings (Tex.Civ.App.), 183 S.W.2d 982 (n. r. e.); Fountain v. Walker (Tex.Civ.App.), 260 S.W.2d 717 (n. r. e.).

The basic concept which underlies the rule of respondeat superior in Texas is in the necessity for the right and power on the part of the master to direct the servant in the performance of the causal act or omission at the time of the occurrence of such act or neglect. Under the principle of respondeat superior, unless the act of the servant is committed within the scope of the general authority of the servant in furtherance of the master’s business and for the accomplishment of the object for which the servant is employed, the master cannot be held liable for thp servant’s act. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057; McGregor Milling & Grain Co. v. Russo (Tex.Civ.App.), 243 S.W.2d 852 (ref. N. R.E.); Hudiburgh v. Palvic (Tex.Civ.App.), 274 S.W.2d 94 (ref. N.R.E.). The servant must be acting within the course and scope of his employment and in the furtherance of his master’s business. In this case, in order to determine whether these indispensable elements exist and thus fix liability against the master, we must look to the right of control of the master in the use of the automobile and whether its use was in the furtherance of the master’s business. Did the master have the right and power to control the conduct of Farmer on the day in question? The complete absence of this power in this case is brought home by consideration of the agreement between the railroad and the Brotherhood of Locomotive Engineers. This agreement covered in minute detail the rates of pay and working conditions for engineers. It is particularly significant that this carefully worded agreement which in effect governs the day in and the day out life of railroad engineers in their employment makes no reference whatsoever to the use of private automobiles and in no way, shape or form gives the railroad company any control over the mode of transportation used in off hours. It is further significant to note that Article 15 of the agreement which refers to “deadhead time” contains no reference to the use of private automobiles, to any right on the part of the railroad company to prescribe or prohibit the use of private automobile or any right to control the manner in which an employee might operate a private automobile.

The Supreme Court of Texas, in the case of Kennedy v. American National Insurance Company, supra, said, “ * * * The employer is not liable where the use of the automobile or other vehicle operated by the employee is not expressly or impliedly authorized by the employer, and he exercises no control over its operation.”

In the case of American National Insurance Company v. Denke, supra, the Supreme Court of Texas said, “We are brought, therefore, to the precise inquiry as to whether or not in this instance Saunders, in his capacity as agent, also occupied the further capacity of servant of the insurance company in the matter of operation of the automobile. It is settled that ‘the test of one’s liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect.’ Putting the matter in a different way, it may be said that a master is liable for acts of his agent under the doctrine • of respondeat superior only where the relationship of master and servant exists at the time and in respect to the very thing causing the injury and from which it arises. Trachtenberg v. Castillo (Tex.Civ.App.) 257 S.W. 657; Leachman v. Belknap Hardware & Mfg. Co., 260 Ky. 123, 84 S.W. (2d) 46; Standard Oil Company v. Parkinson (C.C.A. [8]) 152 F. 681, and authorities cited in those cases. The Supreme Court of Tennessee has in several cases reiterated the language of Judge Lurton as follows: ‘In every case, the decisive question is, had the defendant the right to control in the given particular, the conduct of the person doing the wrong.’ See Income Life Insurance Co. v. Mitchell, 168 Tenn. 471, 79 S.W. (2d) 572, 574.”

In the case of Lofland v. Jackson, 237 S.W.2d 785, Tex.Civ.App., 1951 (writ refused, n. r. e.), the court said:

“ * * * Since the evidence conclusively shows that Jackson was using his own automobile for his own personal convenience on his way to work and not engaged in the business of his employer at the time and place of the collision in question and that Jackson was not being directed by the agents of his employer or not even subject to their direction, we think that the Commission of Appeals with the approval of the Supreme Court announced the rule governing such a matter in the one opinion handed down in two cases reported together, American Nat. Ins. Co. v. Denke and the same company v. Shepherd, 128 Tex. 229, 95 S.W.2d 370, 373, 107 A.L.R. 409 * * * ”

In the case Antilley v. Jennings, supra, the court stated:

“ * * * 'In this case we have the simple question of a man (Calvary) driving his own car on a public highway, going from Abilene to Camp Barkeley, Texas, * * * where he was to report for work, and while on the road and before he had started to work, and in his own car, he was involved in a collision with another car, and the party who was riding with him was killed and Mrs. Antilley was killed and Billy M. Antilley was injured * * * ’ — hence, no liability on the part of defendants.
“ * * * A consideration thereof leads us to the conclusion that the following fact issues are established by the undisputed testimony: The employers (defendants) were in no way concerned or interested in the mode of transportation or the route by which Calvary (or Allen) reached the place where he was to perform labor for them. A paved public highway and ‘other roads’ ran from Abilene to and by Camp Barkeley, and Calvary, as well as Allen, was free to take transportation to point of labor by bus, individual car, or other means. The Jennings in no way undertook to furnish transportation for Calvary and Allen, or either of them. Calvary, as well as Allen, was left free to select his own method of transportation from his residence to his work and the return therefrom. * * * The collision, or alleged tortious injury is not shown to have occurred in the immediate performance of work for the Jennings, but on the public highway leading to the place where work was to be done for them. There is no evidence that said employers expressly or impliedly exercised at any time any character of control over the use or operation of Calvary’s car as a vehicle for going to said work or returning therefrom. The evidence is definitely to the contrary. Obviously the collision occurred on the public road and before Calyary"Mci begtln his day’s work. * * ”

Under the above undisputed facts and circumstances we are forced to the conclusion that at the time of the unfortunate accident and collision of the cars said Calvary was not in line of duty for his employers, or doing any work whatever for them, but was at such time driving his own car on a mission of his own.

In the case of American National Insurance Company v. Denke, supra, the Supreme Court said:

“In the case of Wesolowski v. John Hancock Mutual Life Insurance Company [308 Pa. 117, 162 A. 166, 87 A.L.R. 783], supra, Supreme Court of Pennsylvania, used this language:
“ ‘In the case before us the defendant had no control over Adams’ car. It was in no position to require him to use it, for the use of his car was no part of his contract of service. It could not direct him when, where, or how to drive his car. It had no more control of Adams’ car in which he transported himself than it had of the shoes he used in walking from patron to patron. The employer was indifferent as to whether Adams walked, rode a bicycle, or operated a motor car to reach the people with whom he transacted business. If Adams had chosen to walk from person to person with whom he had his employer’s business to transact and in walking he had negligently knocked over and injured another pedestrian, it could not reasonably be contended that his employer should respond in damages for Adams’ negligent pedestrianism. So to hold would be to construe the phrase “re-spondeat superior” beyond its fundamental meaning and to carry its principle to absurd lengths and to consequences forbidden by every sound consideration of public policy.’ ”

A case which is squarely in point is that of Spoonamore v. Louisville and Nashville Rd. Co., 179 F.Supp. 290 (U.S.D.C.) Ky., 1959. In that case the plaintiff, a locomotive engineer, placed with defendant railroad, his bid for the position of engineer which had been described in a bulletin. He was entitled to the position by his seniority and was en route by automobile to the location where he was to carry out his new assignment. The court held that the injured employee was not within the coverage of the act pointing out as follows:

“ * * * It is clear from the evidence that in traveling the long distance from his place of residence to the place where he was to begin his duties of his employment, the plaintiff was free to choose the means of transportation as well as a route to be followed. Transportation by public bus was available, and his traveling with Mr. Davis was entirely a matter of his own voluntary choice for reasons personal to him. It was a matter over which the railroad exercised no direction or control.
“At the time of his injury neither the plaintiff nor Mr. Davis, the driver of the car, were functioning within the scope of their employment nor in the performance of any of their duties as employees of the defendant railroad. All that was required of them was to present themselves for work at the appointed time and place.
“In view of the above facts, it follows as a matter of law that at the time of his injury plaintiff was not within the coverage of the Act upon which he relies.”

The vital element of expressed or implied authorization to use an automobile is completely absent from the case at hand. The railroad company had no right to direct Farmer to use or not to use his own private aütomobile. It had no right to tell him how to use his automobile if he chose to do so, what route to follow, when to depart or what facility to use. Even if the railroad company had undertaken to attempt to direct Farmer in this connection, it was his ■ complete privilege, protected as he was by the agreement, to decline to follow such instruction and to proceed on his own. The vital element of control which has been the foundation of the rule of re-spondeat superior is completely lacking.

Since there is no evidence that the employer had a right to control the conduct of Farmer or the use of the automobile on the day in question, or that the employer did in fact exercise control over him in the particulars above stated, it follows that Farmer was not acting within the course and scope of his employment for his employer at the time of the accident. Hence no liability attached to the employer for the acts of Farmer. The appellee met its burden of demonstrating an absence of a fact issue on such matter, and accordingly the judgment of the trial court should be in all things affirmed and it is so ordered.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Alf D. MILLIGAN et al., Appellants, v. CORSICANA INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 4248.
    Court of Civil Appeals of Texas. Waco.
    July 9, 1964.
    Rehearing Denied July 23, 1964.
    A. P. Mays, Corsicana, for appellants.
    Don D. Pevehouse, Corsicana, for appel-lee.
   McDONALD, Chief Justice.

This suit, filed October 10, 1961, by individual taxpayers, against Richland School District (now Corsicana Independent School District by virtue of annexation), is a direct attack on the action of the Board of Equalization in fixing and raising plaintiffs’ valuations for 1961. Plaintiffs alleged, among other things, that defendant district’s tax plan was fundamentally and constitutionally erroneous, in not taxing or taking into account bank deposits in arriving at the valuations in the district. Plaintiffs contend that they have been substantially injured by the defendant’s tax method in arriving at valuations, and sought injunction against collection of taxes upon “the illegal valuation,” and prayed “that a revision of the assessed values of the property be required so that they will be required to pay only the amount of taxes that are justly due and owing.” Plaintiffs tendered such taxes as they alleged were legally just and due.

Trial was to a jury. Both plaintiffs and defendant moved for an instructed verdict at the close of the evidence. The Trial Court thereafter (without acting on either motion), entered an order discharging the jury and rendering judgment that plaintiffs take nothing.

Plaintiffs appeal, contending the Trial Court erred: 1) In refusing to grant plaintiffs’ motion for instructed verdict; 2) In rendering judgment for defendant.

The record reflects that the officials of the Richland School District, sometime in 1961, determined that it would require more money to operate the schools in 1961 than in 1960; and that the school tax assessor prepared his tentative tax roll raising valuations 85% over the 1960 valuation; that none of the plaintiffs rendered their property to the Richland Independent School District Tax Assessor; that several weeks prior to August 15, 1961 the School District Tax Assessor turned his roll over to the School District Board of Equalization. The Board of Equalization notified all property owners on the tax roll to appear on August 15, 1961 and show cause why their taxes should not be raised. The Board of Equalization met on August 15, 1961 and a large number of taxpayers, including many of the plaintiffs, met with them; but none of the plaintiffs presented any evidence concerning the value of their property, or asked to do so; and no taxpayer was refused an opportunity to present evidence of the value of his property. The Board of Equalization recessed until August 21, 1961; and met on such date; and heard evidence of values of some properties in the district, but none of the plaintiffs appeared and presented evidence. Thereafter, the tax roll was turned over to the District Board of Trustees who approved the tax roll, levied the tax rate, and ordered tax statements mailed to the taxpayers. After the tax statements were mailed, and during the month of September, 1961, the roll and receipt books were turned over to the School Tax Collector. The Tax Collector began collection of taxes on October 1, 1961. Every function of the tax program had been completed prior to October 1, 1961. This suit was filed on October 10, 1961.

The district’s tax plan was to assess property at approximately one-third of its market value.

The deposits of the First National Bank of Richland, amounting to some $508,000. were not assessed or taken into account in the defendant’s valuation or tax scheme; if such deposits had been added to the taxable values of the district, the tax rate or valuations, could have been reduced by one-fourth.

During the trial of this case, no evidence was tendered as to the market value of any of the property of plaintiffs.

The Trial Court filed Findings of Fact, substantially as above; and made Conclusions of Law as follows:

1) Plaintiffs are not entitled to injunctive relief because the 1961 tax plan of defendant district had been placed in effect prior to the filing of this case.
2) Plaintiffs are not entitled to the relief prayed for because there is no showing of substantial injury to plaintiffs.

There can be no question but that the defendant school district’s plan or. method of taxation was fundamentally erroneous. The deposits of the First National Bank of Richland, amounting to $508,-000. were not taxed, and were not taken into account in arriving at the valuation of the property in the district, for tax purposes. Article VIII, Section 1 of the Constitution, Vernon’s Ann. St., declares that “Taxation shall be equal and uniform. All property * * * shall be taxed in proportion to its value.” Article 7145, Vernon’s Ann.Civ. St. further provides for the taxation of all property; and Article 7147 V.A.C.S. provides that “all moneys” are included in the term "personal property” for the purposes of taxation. The failure to include the deposits of the bank in the district’s valuation rendered the tax plan fundamentally erroneous. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378.

We think the defendant district’s tax plan was completed, and in effect, prior to October 1,1961. Everything necessary had been accomplished, and the Tax Collector commenced the collection of taxes under the plan on October 1, 1961. Plaintiffs filed this suit on October 10, 1961, and after the tax plan was in effect.

A taxpayer is entitled to relief from a fundamentally erroneous plan or scheme of taxation (where as here the bank deposits were not taxed or included in the district’s valuation). However, if the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent a taxing authority from putting such a plan into effect, his right to relief is limited. Once such a plan of taxation is put into effect, (as here) the taxpayer must assume the onerous burden of proving substantial injury. Such burden, here involves a showing by the taxpayer, that his taxes (or valuation), is actually excessive, and excessive by virtue of the omission of the bank deposits from the tax plan. If the taxpayers’ taxes (and valuation), are not excessive, even though the taxation plan be fundamentally erroneous, he is not entitled to relief. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; State v. Fed. Land Bank, 160 Tex. 282, 329 S.W.2d 847; East & Mt. Houston Ind. Sch. Dist. v. South Texas Lbr. Co., 153 Tex. 535, 271 S.W.2d 795.

Defendant district's tax plan or scheme for 1961 was to assess property within the district at approximately one-third of its market value. The plaintiffs tendered no evidence of the market value of any plaintiff’s property. Since there is no showing as to the market value of . any plaintiff’s property, it cannot be shown that any plaintiff’s property was in fact assessed at more than one-third of its market value.

Evidence of the market value of plaintiffs’ properties, which it was plaintiffs’ burden to tender, is a prerequisite to a finding that plaintiffs’ property was valued excessively, or that the plan worked to plaintiffs’ substantial injury. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; Montgomery County v. Humble, Tex.Civ.App., (n. w. h.), 245 S.W.2d 326; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756.

Plaintiffs’ contentions are overruled and the judgment of the Trial Court is affirmed.


text:
    Gene THORNHILL et al., Appellants, v. Mrs. Trupy ELSKES et al., Appellees.
    No. 4236.
    Court of Civil Appeals of Texas. Waco.
    May 21, 1964.
    Rehearing Denied July 23, 1964.

      T. E. Kennerly, Houston, for appellants.
    McLaughlin, Clark, Fisher, Gorin & McDonald, George Clark and Leonard Gorin, Waco, for appellees.
   McDONALD, Chief Justice.

This case was filed in the 19th District Court of McLennan County in 1963, by-Mrs. Trupy Elskes (Co-Independent Executrix; devisee; and trustee for another devisee), against the other Co-Executors; devisees; and all other persons interested in the estate; to construe the last will (and a codicil), of A. S. Fletcher, deceased.

Fletcher’s last will, and a codicil, were probated together in Waller County, Texas in 1961.

The defendants (who are appellants here) filed pleas of privilege to be sued in Waller County, but filed no answers to the merits; the defendants Crim filed no pleas of privilege; but filed answer to the merits. The pleas of privilege were controverted, and upon hearing the Trial Court overruled such pleas of privilege.

Thereafter, the Trial Court on October 23, 1963, (the pleas of privilege having been overruled and no answers filed to the merits by appellants), granted nil dicit judgment against appellants; and after a hearing on October 29, 1963 in which plaintiffs and defendants Crim participated, rendered final judgment on October 31, 1963, construing the will and codicil as contended for by ap-pellees.

Appellants are before this court on petition for writ of error to the judgment of the Trial Court. There is no statement of facts.

Appellants contend the Trial Court erred : 1) In not sustaining the pleas of privilege and transferring the case to Waller County; and 2) In the construction placed on the will and codicil.

We revert to appellants’ 1st contention. The suit is one to construe a will. It was filed in the District Court of Mc-Lennan County, by a plaintiff who is a co-executrix as well as a devisee. Four of the defendants (one of whom is a devisee) live in McLennan County; the others live in Harris and Navarro Counties. Appellants contend exclusive venue in Waller County because the will had been probated there. Appellees assert venue in McLennan County under Subdivision 4, Article 1995, Vernon’s Ann.Tex.Civ.St.

The power to construe wills is vested in the District Court by separate and independent action, after the will has been probated. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588; McCarty v. Duncan, Tex.Civ.App. (n. w. h.) 330 S.W.2d 899. The District Court of the county in which the will is probated does not, however, have exclusive jurisdiction of a suit to construe such will. Fairbanks v. McAllen, Tex.Civ.App. (Er. Ref., 170 S.W.2d 581; Gallagher v. Gallagher, Tex.Civ.App. Er. Dis., 153 S.W.2d 541.

All devisees of a will are necessary parties in a suit for declaratory judgment to construe such will. Winston v. Griffith, 133 Tex. 348, 128 S.W.2d 25; Weems v. Frost Nat. Bank, Tex.Civ.App., Er. Dis., 275 S.W.2d 956.

Plaintiffs’ cause of action is against 2 or more defendants, one of whom lives in McLennan County; (the defendant living in McLennan County was a necessary party). Subdivision 4, Article 1995, V.A.T.S. provides that such suit may be brought in any county where one of the defendants (who is a necessary party) resides. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.

The Trial Court’s order overruling appellants’ pleas of privilege is correct. Moreover, absent a Statement of Facts, which is appellants’ duty to bring forward, there can be no showing to the contrary. Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943; Ehrhardt v. Ehrhardt, Tex.Civ.App., Er. Ref., 368 S.W.2d 37.

Appellants’ 2nd contention is that the Trial Court erred in the construction it placed on the will and codicil.

Pertinent portions of the will and codicil are:

THE WILL
* *
“FIRST. I desire and direct that my body be buried in a decent and Chris-tianlike manner * * *.
“SECOND. It is my will and desire that all the property both real and personal, that I may die seized and possessed of, after payment of all my just debts, together with all the expenses incident to the probating of this will, shall pass to the within named devisees, to-wit:
“I hereby give, devise and bequeath unto Mrs. Trupy Elskes of Hillsboro, Texas, in trust and as Trustee for the use and benefit of my brother, Hurs-ton W. Fletcher, an undivided Vi interest in all of my real and personal property, wheresoever situated and howsoever acquired. * * *
“All of the rest and residue of my estate, both real and personal, wheresoever situated and howsoever acquired, I give, devise and bequeath unto my brother and sisters, namely: Mrs. Fannie Smith of Houston, Texas; Mrs. Tracy Smith of Corsicana, Texas; Mrs. Trupy Elskes of Hillsboro, Texas; C. G. Fletcher of Los Angeles, California; Mrs. Myrtle Ogle of Waco, Texas; and Mrs. Helen Roberts of Houston, Texas, in fee simple to share and share alike.
“THIRD: I hereby constitute and appoint Mrs. Trupy Elskes, Jack Elskes, and Gene Thornhill, Independent Executors of this, my last will and Testament * * *.
“IN TESTIMONY WHEREOF, I have signed my name hereto * *
THE CODICIL
* *
“That the Original Will mentioned above is to stand as written with the following exceptions:
“FIRST: That my brother, C. G. Fletcher, of Los Angeles, California, is not to inherit under this will, due to the fact that he does not need anything financially.
“SECOND: I do hereby appoint Mrs. Tracy Smith of Navarro County, Texas, Executor to serve in place of Jack Elskes of Hillsboro, Texas, who is now deceased, with the other two named executors in the original will.
“THIRD: I hereby bequeath to my beloved wife, Ruth Alcine Fletcher, our home and all lots * * * in Block 327 Hemstead, Waller County, Texas.
“FOURTH: I hereby further bequeath to my beloved wife, Ruth Al-cine Fletcher, all our household furniture, fixtures, and my Buick automobile, together with the following Savings and Loan Associations:
(1) Bryan Building & Loan Ass’n., Bryan, Texas, in the amount of $10,000.
(2) Coast Fed. Savings & Loan Ass’n. of Los Angeles, Calif., in the amount of $10,000.
(3) Litton Savings & Loan Ass’n. of Conorga, Park, California, in the amount of $10,000.
(4) Home Savings & Loan Ass’n. of Houston, Texas, in the amount of $10,000.
(5) Gibraltar Savings & Loan Ass’n. of Houston, Texas, in the amount of $10,000.
(6) Southwestern Savings and Loan Ass’n. of Houston, Texas, in the amount of $10,000.
(7) Ben Franklin Savings & Loan Ass’n of Houston, Texas, in the amount of $10,000.
(8)American Savings & Loan Ass’n. of Houston, Texas in the amount of $10,000.
“Witness my hand * *

The Trial Court construed such will and codicil together, and held that:

1) Mrs. Trupy Elskes, as trustee, should receive “a full ¥t share of the value of the whole value of the estate”; and that such Vi share shall not be charged with or reduced, by the payment of estate taxes, last illness and administration costs; or debts of the deceased; and that such Vt share shall not bear the burden of or be reduced by the devise to Ruth Alcine Fletcher.

2) The burden for payment of estate taxes, last illness and administration costs, and debts (Items a) through g) footnote 1) ; and the burden for payment of devises to Ruth Alcine Fletcher, shall be bourne by and cause a reduction of the residuary clause of the will.

3) The devises to Ruth Alcine Fletcher shall not be reduced by or bear the burden of taxes, administration expenses or debts (Items a) through g) footnote 1).

Appellants contend that the Trial Court erred in such construction, and assert that a proper construction of the will and codicil requires the bequest of the Vith to Mrs. Trupy Elskes, Trustee, to bear its proportionate part of all debts, expenses, federal estate taxes, and the special bequest to Ruth Alcine Fletcher.

Appellees contend that appellants having filed pleas of privilege without answering to the merits, “irrevocably confessed, agreed to and admitted in open court the construction of the will placed upon the will by ap-pellees in their petition, and found and adjudicated by the Trial Court in its nil dicit judgment”; and that such judgment is “not properly open to question nor subject to review in this court,”

The validity of appellees’ contention involves the true nature and effect of a nil dicit judgment. Spivey v. Saner-Ragley Lbr. Co., Tex.Com.App., 284 S.W. 210 holds that the effect of a defendant appearing in a civil case, but saying nothing in bar or preclusion thereof, impliedly confesses judgment and waives all errors of pleading and proof, “except such as appear from facts in the record were not intended to be waived.” * * *

* * * “The judgment of the trial court is a nil dicit judgment, and all errors of pleading being waived, the court will not examine the petition for the purpose of determining the legal sufficiency of its aver-ments to state a cause of action. If the petition shows an attempt to state a cause of action coming within the court’s jurisdiction, the requirements of law are fulfilled, and the scope of the defendants’ implied confession will be measured by the cause of action thus attempted to be stated. ' On the other hand, if the petition shows upon its face that the plaintiff has no cause of action to the extent covered by the judgment, it will not be implied, in the face of such, showing, that the defendant intended to confess a liability to the extent which he is thus shown not to rest. Storey v. Nichols, supra. [22 Tex. 87.'] The court will examine the petition for the purpose of determining if its averments so show.”

Storey v. Nichols, supra, holds that a nil dicit judgment must conform to the legal effect of the facts and admissions stated in 'plaintiff’s petition. See also O’Quinn v. Tate, Tex.Civ.App., Er.Ref., 187 S.W.2d 241.

In the case at bar appellees plead verbatim the will and codicil of deceased. It is true that appellees plead an asserted construction of such will and codicil, but since the construction of the will and codicil is a matter of law, we must examine the will and codicil to determine if the nil dicit judgment rendered by the trial court conforms to the legal effect of the facts (i. e. the will and codicil), plead.

Appellee furtlier contends that absent a Statement of Facts, this court cannot review the construction made of the will and codicil by the Trial Court. We reject this contention, since absent ambiguity, the construction of the will and codicil is a matter of law.

A will and a codicil are construed together, as if they had been executed at the time of the making, of the codicil. So far as practicable, they should be reconciled as one consistent whole, but when a provision of the will is irreconcilable with one contained in the codicil, the later will prevail. 44 Tex.Jur.Sec. 153.

Considering the will, and codicil together, the testator devised his wife the homestead, furnishings, automobile and 8 specified accounts of $10,000 each, in Sav- . ings and Loan Associations. If this special bequest is in any way irreconcilable with paragraph Second of the will providing for devises after debts and expenses have been paid,.then the codicil which makes no such provision prevails. We doubt the existence 'of any irreconcilability, however, since the devise is a Special Bequest of the items named, and if the items named go to the wife as specified, obviously no part could be used to pay debts and expenses. See Sinnott v. Gidney, 159 Tex. 366, 322 S.W.2d 507, 74 A.L.R.2d 544. We think it was testator’s intention to devise his widow the items named in the codicil, unreduced by debts and expenses, (and burdened only with the payment of Texas Inheritance Tax applicable to such devisee).

The will in paragraph Second, specifically provides that after the payment of debts and expenses, Mrs. Trupy Elskes takes a devise in trust; and the rest and residue of the estate are devised to the other beneficiaries named. (The codicil revokes the devise to C. G. Fletcher). It is our view that Mrs. Elskes takes the devise in trust, and that the other 5 beneficiaries take the devise to them, reduced by and burdened with the debts and legal charges against the estate. (Items a) through g) Footnote 1); and reduced by and burdened with the Special Bequests to testator’s widow.

The judgment of the Trial Court is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

      . a) Federal estate taxes paid or payable.
      b) Expenses of last illness, funeral, or grave marker of the deceased,
      e)Administration expenses,
      d) & el Taxes or debts owed by deceased at time of death.
      f) Additional State Inheritance Taxes owing by estate under Articles 15.01 to 15.16 R.C.S. (Taxation General).
      g) Any other expenses, claims, or debts except State Inheritance Taxes under Articles 14.01 to 14.27 Taxation General R.C.S.


author: GRISSOM, Chief Justice.

text:
    UNITED PRESS INTERNATIONAL, INC., Appellant, v. Bruce B. MOHS, Appellee.
    No. 3894.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1964.
    Rehearing Denied July 24, 1964.

      Johnson, Bromberg, Leeds & Riggs, Dallas, for appellant.
    Lyne, Blanchette, Smith & Shelton, Dallas, for appellee.
   GRISSOM, Chief Justice.

In August, 1961, Mr. Bruce B. Mohs lived in Madison, Wisconsin. He was a licensed commercial plot. He was licensed to fly many types of aircraft, operated an air service, was in the aircraft business and president of Mohs Seaplane Corporation. On August 10, 1961, he flew a seaplane to Dallas. Upon approaching Dallas, he called Love Field trying to find a place to land. Love Field instructed him to go to the Dallas Naval Air Station at Mountain Creek Lake. Upon landing there he was informed that it had no facilities for keeping civilian aircraft overnight. The officer there had him contact a former operator of a Boat Marina at White Rock Lake. He did as suggested and then flew to White Rock Lake. The operator of the Marina there helped him get ashore, where he saw a policeman, Mr. Flowers of the Park Department, who suggested that they go to Park Patrol Headquarters to determine whether he had violated a city ordinance in landing his plane on White Rock Lake. Park Headquarters was operated by Mr. Cook, who called the down town Park Department to ascertain whether there had been a violation of a city ordinance. He was referred to the Northeast Dallas Police substation, north of White Rock Lake. They went to that station and Mr. Mohs talked to Sergeant Veech who helped him find a place to moor his plane. The sergeant contacted the U. S. Corps of Engineers at the Grapevine Reservoir, northwest of Dallas, and the Marina operator there. Both said it was all right for Mohs to land there. Mr. Flowers drove Mr. Mohs back'to his aircraft on White Rock Lake and Mohs flew to the Grapevine Lake. That night Mr. Brice Miller, night editor of United Press International, Inc., in Dallas, sent the following story over its wires for publication throughout the world:

“LITENBRITE
DALLAS, TEX., AUG. 11 (UPI)— BRUCE MOHS OF MADISON, WIS., IS THE KIND OF GUY WHO FIGURES ANY PORT IN A PINCH. AND HE WAS . . . PINCHED. HE FLEW HIS PLANE TO DALLAS YESTERDAY AND BY THE TIME HE GOT HERE HE WAS LOW ON FUEL. HIS PLANE HAS PONTOONS • AND NO WHEELS, SO HE LANDED SMACK IN THE MIDDLE OF WHITE ROCK LAKE, A RESIDENTIAL AREA AND PARK INSIDE THE CITY LIMITS.
‘HEY, GET THAT THING OUT OF HERE.’ A PARK PATROLMAN YELLED.
‘SORRY,’ MOHS REPLIED. ‘NO GAS LEFT.’
THE PATROLMAN CRAWLED INSIDE THE PLANE AND TURNED ON THE IGNITION. THERE WAS A QUARTER OF A TANK LEFT. ‘YOU HAVE PLENTY OF GAS TO GET TO .LAKE DALLAS (ABOUT IS MILES AWAY),’ HE SAID
MOHS DISAGREED AND ABOUT'. THIS TIME L. M. COOK, PARK SUPERINTENDENT, ARRIVED AND ORDERED MOHS ARRESTED AND HANDCUFFED. HE TOOK HIM TO HIS OFFICE AND BEGAN THUMBING THROUGH A THICK BOOK OF CITY ORDINANCES TO FIND ONE THAT FIT. 3,
HE DID, AND HAD MOHS CHARGED WITH FLYING UNDER 2,000 FEET OVER DALLAS AND LANDING ON A PUBLICLY OWNED LAKE. T GUESS I COULD HAVE LOOKED A LITTLE LONG- : ER,’ MOHS ADMITTED. T SAW PLENTY OF AIRPORTS, BUT NO WATER FOR A PONTOON PLANE AND I JUST SET IT DOWN ON THE FIRST THING THAT LOOKED BIGGER THAN A PUDDLE.’ ”

That story was published in many newspapers, including some in Madison, Wisconsin, where Mohs lived and operated his aircraft business. About eleven days later United Press was told by Mohs’ lawyer that statements in said story were false and libelous. On August 26th, United Press sent out the following correction:

“UPI ASS EDITORS:
ON AUG. 11, UNITED PRESS INTERNATIONAL CARRIED A DISPATCH FROM DALLAS THAT A PRIVATE PLANE PILOT WAS ARRESTED WHEN HE LANDED HIS PONTOON PLANE ON A CITY LAKE. THE STORY WAS IN ERROR. IF YOU PRINTED IT, WE REQUEST THAT YOU PRINT THE FOLLOWING:
-0-
DALLAS,' TEX., AUG. 26 (UPI)— UNITED PRESS INTERNATIONAL ERRONEOUSLY REPORTED ON'AUG. 11 THAT BRUCE MOHS OF MADISON, WIS., WAS ARRESTED AND CHARGED WITH VIOLATION OF A CITY ORDINANCE FOR LANDING HIS PONTOON-EQUIPPED PLANE ON A CITY LAKE. MOHS, WHO IS A LICENSED COMMERCIAL PILOT, LANDED AT THE LAKE ON A FLIGHT FROM MADISON TO DALLAS ON AUG. 10. A UPI DISPATCH SAID HE WAS ORDERED ARRESTED AND HANDCUFFED. HE WAS NOT ARRESTED, NOR WAS HE HANDCUFFED. PARK SUPERINTENDENT L. M. COOK, WHO SUPERVISES ACTIVITIES AT THE LAKE, WAS QUOTED AS SAYING MOHS WOULD BE CHARGED UNDER A CITY ORDINANCE FORBIDDING FLIGHTS IN DALLAS UNDER 2,000 FEET AND LANDING ON A PUBLICLY OWNED LAKE. ACTUALLY, MOHS WAS NOT CHARGED. NO SUMMONS WAS ISSUED BY POLICE.
MOHS SAID THAT AS HE APPROACHED DALLAS, HE CONTACTED DALLAS LOVE FIELD, THE MAIN CITY AIRPORT, AND WAS TOLD, TO PROCEED TO MOUNTAIN CREEK LAKE, SINCE HIS PLANE HAD NO WHEELS. HE SAID THE NAVAL AIR STATION AT THE LAKE COULD NOT PROVIDE MOORING FOR HIS AIRCRAFT, SO HE CONTACTED A FORMER BOAT DOCK OPERATOR AT WHITE ROCK LAKE WHO TOLD HIM HE COULD LAND AND MOOR HIS PLANE THERE. THE UPI DISPATCH OF AUG. 11 QUOTED MOHS AS TELLING A PARK PATROLMAN HE WAS ‘OUT OF GAS.’ THE PATROLMAN SAID LATER MOHS DID NOT SAY THIS, NOR DID THE PATROLMAN CLIMB INTO THE PLANE TO CHECK ON THE AMOUNT OF GAS LEFT IN THE TANKS.
UPI REGRETS ANY INCONVENIENCE OR EMBARRASSMENT THE ORIGINAL STORY MAY HAVE CAUSED MOHS.
-0-
BUOS — PLS. RELAY ALL CIRCUITS WHERE ORIGINAL WAS CARRIED.
UPI NEW YORK”

Mr. Mohs sued United Press International, Inc. for actual and exemplary damages caused by said alleged libel. Issues were submitted to a jury and answered as follows:

“SPECIAL ISSUE NO. 1

“Do you find from a preponderance of the evidence that the statement caused to be published by the Defendant (United Press International) ‘Bruce Mohs, Madison, Wisconsin, is the kind of a guy who figures any port in a pinch. And he was * * * pinched’ was a libel as that term is defined for you in this charge?

“Answer ‘Yes’ or ‘no’

“ANSWER: yes

“SPECIAL ISSUE NO. 2

“Do you find from a preponderance of the evidence that the statement caused to be published by the Defendant (United Press International) ‘Hey, get that thing out of here,’ a park patrolman yelled. ‘Sorry’, Mohs replied. ‘No gas left.’ The patrolman crawled inside the plane and turned on the ignition. There was a quarter of a tank left. ‘You have plenty of gas to get to Lake Dallas (about 15 miles away)’ he said’, was a libel as that term is defined for you in this charge?

“Answer ‘yes’ or ‘no’.

“ANSWER: yes

“SPECIAL ISSUE NO. 3

“Do you find from a preponderance of the evidence that the statement caused to be published by the Defendant (United Press International) ‘Mohs disagreed. L. M. Cook, Park Superintendent, arrived and ordered Mohs arrested and handcuffed.’ was a libel as that term is defined for you in this charge ?

“Answer ‘yes’ or ‘no’

“ANSWER: yes

“SPECIAL ISSUE NO. 4

“Do you find from a preponderance of the evidence that the statement caused to be published by the Defendant (United Press International) ‘He had Mohs charged with flying under 2,000 feet over Dallas and landing on a publicly owned lake.’ was a libel as that term is defined for you in this charge ?

“Answer ‘yes’ or ‘no’

“ANSWER: yes

“SPECIAL ISSUE NO. 5

“Do you find from a preponderance of the evidence that the Plaintiff (Mohs) sustained any injuries proximately resulting from the publishing of said statements inquired about in Special Issues Nos. 1, 2, 3 or 4?

“Answer ‘yes’ or ‘no’

“ANSWER: yes

“If you have answered ‘yes’ to the preceding special issue, then you will answer the following special issue; otherwise, you need not answer same.

“SPECIAL ISSUE NO. 6

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate plaintiff (Mohs) for injuries, if any, done to Plaintiff (Mohs) as the proximate result, if any, of the publications of said statements inquired about in Special Issues Nos. 1, 2, 3 or 4?

“Answer in dollars, if any, and cents, if any, or ‘none’.

“ANSWER: $2,500.00 (Two Thousand, Five Hundred Dollars and No/100)

“In answering the foregoing question, you may consider any injuries sustained to the plaintiff's (Mohs) character and reputation as a professional pilot, if any, and as a man, if any, and mental anguish, if any, embarrassment, if any, shame, if any, humiliation, if any, pecuniary loss, if any, or loss of business, if any, which have been sustained, if any, proximately caused by the publication of the statements inquired about in Special Issues Nos. 1, 2, 3 or 4.

“In connection with Special Issue No. '6, you are instructed that, in determining your answer thereto you may, in mitigation or reduction of the amount of damages, if any, consider such evidence before you of the facts and circumstances surrounding the said publication of said statements, inquired about in Special Issues Nos. 1, 2, 3 or 4, any retraction, apology or correction and the intention with which the said publication was made.

“If you have answered Special Issue No. 6 in any amount, then you will answer the following special issue;' otherwise, you need not answer same.

“ ‘Exemplary damages’ are damages which are assessed against a party where such party has acted with malice, and which damages are assessed against such party for the purpose of punishing such party, and also for the purpose of setting a wholesome example, if any, to others.

“ ‘Malice’, as used in this charge, is meant a willful or wanton act or gross indifference of the rights of others, and means an act done with the specific intention to injure the person that was injured, or acts done with such utter recklessness as to indicate a disregard of consequences.

“special Issue'no. 7

“Do you find from a.preponderance of the ■evidence that the publication of the statements inquired about in Special Issues Nos. 1, 2, 3 or 4 amounted to malice, as that term is defined in this charge ?

“Answer ‘yes’ or ‘no’

“ANSWER: yes

“If you have answered ‘yes’ to the preceding special issue, then you will answer the following special issue; otherwise, you need not answer same.

“SPECIAL ISSUE NO. 8

“What sum of money, if any, do you find from a preponderance of the evidence should be awarded against the defendant (United Press International) by way of exemplary damages herein?

“Answer in dollars, if any, and cents, if any, or ‘none’.

“ANSWER: $5,000.00 (Five Thousand Dollars and No cents.)”

The court rendered judgment for Mohs against United Press International, Inc., for $2,500.00 actual damages and $5,000.00 exemplary damages. United Press International, Inc., has appealed. However, it complains only of the award of exemplary damages.

As shown above, in answer to issues 7 and 8 a jury found that publication of the statements inquired about amounted to malice and that $5,000.00 should be awarded by’way of exemplary damages. Appellant’s points are that (1) the court erred in overruling its motion to disregard the answers to issues 7 and 8; that (2) the court erred in submitting issue 7 over its objection that there was no evidence to support a finding thereon; that (3) the court erred in submitting issue 8 over appellant’s objection that there was no evidence to support a finding thereon and (4) that the undisputed evidence showed there was no malice on the part of Miller. The substance of appellant’s contentions is that there was no evidence of malice and, therefore, no evidence to support the award of 'exemplary damages.

There was no truth in most of the story about appellee that was sent out and caused to be published by appellant. The quoted statement of the Park patrolman telling Mohs to “get that thing out of here”, Mohs answered that he couldn’t because he was ■out of gas and that the patrolman investigated and learned Mohs was lying, that he still had a quarter of a tank of gas, and the statement that about this time the Park Superintendent arrived and ordered Mohs arrested and handcuffed and that Mohs was ■ charged with flying over Dallas at less than 2,000 feet and landing on a publicly owned lake in violation of a city ordinance were all completely false. Said quoted statements were not made. Mohs was not or•dered arrested or handcuffed. Mohs was not caught lying about being out of gas. Mohs was not charged with any offense.

Before Miller wrote and sent out that story, another story about Mohs landing 'his seaplane on White Rock Lake had been written at and sent from appellant’s same •office that night. It contained no statement that Mohs had been ordered arrested and handcuffed; that Mohs had been caught lying or that he had been charged with any offense. Miller knew about that story. Miller did not know who wrote the first story or what information the writer thereof had and he made no effort to find out.

Miller testified that a Mr. DeHarrow ■told him that he saw and heard the things related in the story; that he had known DeHarrow for a year; that he had given Miller stories before which had been accurate and he believed what DeHarrow told him. DeHarrow did not testify. Mr. Fal-lon, the Southwestern Division News Man.ager for United Press International testified with reference to DeHarrow that he was one of appellant’s string correspond•ents; that “A string correspondent is someone who is not employed by us as a staff correspondent who works for another news media such as newspaper, radio, television station, and is a newsman per se, that is an editorial staffer, and he provides news to us on what we call a string basis; ■that is, when he has a story which he comes across which he covers or he gives the story ■to the wire service.” Between the writing .and sending of the first story and the sending out of the second, some one at appellant's office called the police department and learned that, so far as was known at police headquarters, Mr. Mohs had not been charged with any offense. Neither Mr. Miller, nor any one else for appellant attempted to verify the story by inquiring at said police substation, nor to verify it by contacting the quoted park patrolman, the quoted park superintendent, or any one else. With such lack of verification, with the only police contacted reporting that, so far as was known at police headquarters, no charge of any kind had been filed against Mohs, with knowledge that appellant’s previously written story did not contain any of the statements found to be libelous, with a question of the truth of all the statements found to be libelous thus raised, nevertheless, appellant sent out the story for the amusement of newspaper readers throughout the world.

The controlling question is whether there was any evidence of probative force to sustain the finding of malice and the consequent award of exemplary damages. Gross negligence constituting ground for exemplary damages has been said to be that entire want of car.e which would raise a belief that the act complained of was the result of conscious indifference to the rights of the person to be. affected by it. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 712. In that case the court said at page 713 of 170 S.W.2d:

“In order for respondents to recover exemplary damages * * * it was necessary for them to show affirmatively that the petitioners, acting through their superintendent, Smith, disclosed an ‘entire want of care’ or a ‘conscious indifference’ to the rights of those working under Smith at the time of the explosion.”

See also Sheffield Division, Armco Steel Corp. v. Jones, Tex., 376 S.W.2d 825; Texas Pacific Coal & Oil Company v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262, the annotation at page 269, and 17 Tex. Jur.2d 245; Houston Chronicle Publishing Co. v. Quinn, Tex.Civ.App., 184 S.W. 669, 675, (Writ Ref.) ; Houston Chronicle Publishing Co. v. Bowen, Tex.Civ.App., 182 S.W. 61, 65, (Writ Ref.). In answering this question we are required to consider all the testimony from the standpoint most favorable to appellee. To reverse the judgment we must determine that there was no evidence of probative force upon which the jury could have made said findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199.

It is evident that either DeHarrow or Miller made up most of the story, quotes and all, for the purpose of having an amusing story published in the newspapers, without any regard for its effect on Mohs. It appears to be immaterial which one manufactured it. Under the testimony of Mr. Fallon, DeHarrow was one of appellant’s string correspondents, who provided news for appellant on a “string basis”. But, regardless thereof, when the story holding Mohs up to ridicule was sent out by Miller the only attempt to have it verified by the police had been met with notice that police headquarters had no information that Mohs had been charged with anything. Furthermore, there was then in his office, which fact was known by Miller, a story, previously written that day, about the same thing which did not indicate that Mohs had been caught lying; that he had done a silly thing, that he had been ordered arrested and handcuffed, and had been charged with violating the law by the operation of his plane. Miller knew that the story previously written in his office was materially different from the story related by DeHarrow. He didn’t inquire who wrote it or what that writer knew. But, he did know that it did not jibe with the story he sent out or with the information from police headquarters. Neither the quoted policeman, Mohs, nor the quoted park superintendent was attempted to be contacted. Miller then had many reasons to' question the truth of the ludicrous story attributed to DeHarrow. Nevertheless, without investigating the truth thereof, which investigation was suggested by many circumstances, he was so pleased with a funny story holding Mohs up to ridicule that he forthwith sent it out for all to read and be amused at Mohs’ expense.

Fabrication of this libelous story was a willful and wanton act sufficient to support a finding of malice. If it was the product of DeHarrow’s fertile imagination and if appellant was not responsible for his acts, nevertheless, the acts of Miller in rewriting and sending out the story without verification, despite the many facts known to him that raised questions as to its truthfulness, raised issues of fact as to whether there was such a want of care as could raise the belief that his acts were the result of a conscious indifference to the rights of Mohs. There was evidence of probative force to support the jury’s finding of malice and the award of exemplary damages.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    C. N. MARSH, Appellant, v. Price MILLWARD, Appellee.
    No. 11208.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1964.
    Rehearing Denied July 8, 1964.

      Sneed & Vine, J. P. Darrouzet, Austin, for appellant.
    Powell, Rauhut, McGinnis, Reavley & Lochridge, Donald F. Nobles, Austin, for appellee.
   HUGHES, Justice.

This is a suit based on judgments rendered in the States of Wyoming and Colorado. The Wyoming judgment was rendered first and the Colorado judgment was based on and brought to enforce the Wyoming judgment. The Trial Court, in a summary judgment proceeding, held that both foreign judgments were entitled to full faith and credit in Texas and he rendered judgment for the single sum involved in such judgments, plus interest and costs.

Appellant, against whom such judgment was rendered, is C. N. Marsh. Appellee is Price Millward.

Appellant has one point of error which is that summary judgment was improper because there were disputed, material issues of fact.

Appellee filed his Motion for Summary Judgment on November 1, 1963, and at the same time he filed a motion under Rule 184a, Texas Rules of Civil Procedure, for the Trial Court to take judicial notice of certain laws, Statutes and Court Rules, of the States of Wyoming and Colorado.

Appellant contends that such Statutes and Rules of which the Court was asked to take judicial notice form no part of the record in a summary judgment proceeding and should not have been looked to by the Court in determining its judgment herein.

We agree that the laws of Wyoming and Colorado, properly established, áre not a part of the “record” in a summary judgment proceeding. Rule 166-A(c) T.R. C.P., states the components of a record in a summary judgment proceedings. It does not, and should not, include the laws or Court Rules of this or any other State or jurjsdicticin. These are-matters of which Courts take judicial knowledge in the manner prescribed by law. Rule 184a, supra, merely'-provides the manner in which laws of' other jurisdictions are brought within the judicial knowledge of the Judge. When this is done Courts have the same judicial knowledge of foreign laws that they have of their own laws. The Court below was not in error in taking judicial notice of the Statutes and Rules of Wyoming and Colorado brought to his attention in conformity with our Rule 184a. We also will take judicial notice of the same laws.

The facts disclosed by the record are:

On October 19, 1960, appellee sued appellant in Civil Action No. 1224 in the District Court, Third Judicial District, Teton County, Wyoming. Appellant was duly served with process in Wyoming on October 20, 1960. -On May IS, 1961, appellant having failed to answer the suit, the Court rendered a default judgment against appellant.

On -January 11, 1962, appellee sued appellant in Cause No. 6197, in the District Court of Rio Grande County, Colorado, on the Wyoming judgment. Appellant was personally served with process in Colorado. On January 27, 1962, appellant’s Colorado attorneys filed a motion to dismiss the suit for failure to state a cause of action. This-motion, at appellee’s request and upon notice to appellant, was set for hearing and overruled by the Court on September 5, 1962, and appellant was ordered to answer within twenty days or be in default. Neither appellant nor his counsel attended this hearing. Default judgment was rendered against appellant on October 8, 1962, appellant having been notified by notice to his attorneys of the time and place appellee would appear and move for such judgment.

On August 28, 1963, this suit was filed. Appellant answered by alleging, not under oath, that both the Wyoming and Colorado' judgments were procured by fraud.

On November 1, 1963, appellee filed his motion for summary judgment. Attached to this motion were (1) a certified and exemplified copy of the Wyoming judgment and an affidavit of the Clerk of the Court in which the judgment was rendered stating that no motion to vacate the default judgment against appellant had been filed, nor had any other action been filed in such Court to vacate such judgment, and (2) a certified and exemplified copy of the Colorado judgment and a similar copy of appel-lee’s notice of intent to take default judgment against appellant in the Colorado Court.

Appellant replied to this motion by alleging that “a disputed fact exists in that defendant says the Wyoming judgment is wholly void for extrinsic fraud on the Court. * * * ” and that “the Colorado-judgment was procured by fraud on the Court.” This answer also alleged, “further assuming the Wyoming judgment to be valid, the Colorado (judgment) may not be used as the basis of a judgment in Texas,. since this judgment is not subject to comity nor full faith and credit, since it is a judgment upon a judgment and as such they do not merge.”

Attached to this answer was an affidavit verifying that a motion was filed in the Colorado case by appellee requesting a change in the place of trial of such suit from Rio Grande County to Alamosa County and that an order of the Court was entered granting such motion.

The fraud which appellant had pleaded in his unsworn answer herein was, with respect to the Wyoming judgment that the suit had been compromised and appellee had agreed to dismiss the suit and that the default judgment was taken in violation of this agreement.

' Similarly, the fraud pleaded by appellant with respect to the Colorado judgment was and we quote:

“If the same be necessary, Defendant says that on January 11, 1962, Plaintiff instituted suit against Defendant in Cause No. 6197, in the District Court of Rio Grande County, Colorado; that said suit was upon the Wyoming judgment as above pleaded; a copy of which judgment, was attached to the Complaint (being Colorado’s name for the Plaintiff’s pleadings instituting a suit) ; that Defendant was served in said case in Colorado; that subsequent thereto Defendant engaged counsel, to-wit: the law firm of Moses and Desouchet, Attorneys, Alamosa, Colorado, to represent him in the Colorado law suit; that subsequent thereto, Defendant never heard from or received communication from said firm, nor heard of or about the said law suit pending in Colorado until the filing of this case.
“Defendant further says that subsequent to his retention of said law firm of Moses and Desouchet as above pleaded, that on or about January 27, 1962, said law firm entered a pleading in said cause in behalf of Defendant, moving the Court to dismiss the case because the. Complaint failed to state a claim upon which relief could be granted; that subsequent thereto, upon notice certified by counsel for Plaintiff, the Court, acting in Chambers, and without the knowledge of Defendant, entered an order without Defendant appearing and without Defendant’s counsel appearing, overruling the said motion to dismiss; that this was done on September 5, 1962, in Alamosa, Colorado; that on the 26th day of September, 1962, the Court, sitting at Alamosa, Colorado, entered a judgment by default against Defendant; that on the 4th day of October, 1962, and without the knowledge of Defendant, his counsel, Moses and Desouchet, withdrew from the case with permission of the Judge, and without permission from Defendant, which order was filed in said Court on the 5th of October, 1962; thereafter, on the 8th day of October, 1962, the Court, ex parte— without notice to .Defendant, when he was without counsel, changed the place of hearing and the Court — from the District Court of Rio Grande County, Colorado, to the District Court of Alamosa County, Colorado, and on the same day entirely removed from the place and county in which the case was originally filed, the Court entered judgment upon the Wyoming judgment, specifically reciting therein that same was upon said Wyoming judgment.
“Defendant further says, that the judgment of the Court in Alamosa County, Colorado, was wholly void in that the same was founded upon- a wholly void judgment of Wyoming; that the same was improperly and unlawfully handed down in that it failed to follow the law of the state of Colorado, in that the same having been done without notice of the time and setting of said hearing and the removal of said hearing from one county to another, to Defendant was a denial to Defendant of such due process as is guaranteed him under the Constitution of the United States of America; and in that without his knowledge and consent he was denied the benefit of counsel in that it was represented to the Court that he had given permission to his counsel to withdraw, which he did not so do; in that such conduct of a member of the Bar of the State of Colorado, and such conduct of the Court of the State of Colorado was tantamount to being fraud on the Court and fraud on the Defendant in violation of fairness and justice and the Constitution of the United States.”

The law of Wyoming, to which we are cited, provides that a Court may vacate a judgment for fraud practiced by the successful party in obtaining it, but that proceedings to vacate the judgment on such ground must be brought within two years after the judgment was rendered, except as to persons under disability.

Rule 60 of Wyoming Rules of Civil Procedure provides, in part, that a Court may on motion grant relief from a final judgment obtained by “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;” provided such motion is made within one year from the entry of judgment.

As to the law of Colorado we are informed that a default judgment may be set aside on motion for “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party” provided such motion is made within a reasonable time and not later than six months after entry of judgment.

In appellee’s motion for summary judgment it is stated that both the Wyoming and Colorado judgments are valid, final judgments. Exemplified copies of these judgments are attached to the motion. As to the Wyoming judgment there is an affidavit dated October 21, 1963 made by the Clerk of the Court in which the judgment was rendered to the effect that no motion or suit to vacate such judgment had been filed in such Court.

As to the Colorado judgment, the record is silent regarding any effort to have it vacated.

Since the respective judgments rendered in the Courts of Wyoming and Colorado are not now subject to attack in the Courts of those States for fraud, intrinsic or extrinsic, it is our opinion that they are not subject to attack in this State on such ground. See Stumberg, Conflict of Laws, 3rd Ed., p. 114, and authorities there cited.

In an Annotation in 55 A.L.R.2d, p. 673, at p. 679 it is stated, “the full faith and credit clause requires that in an action upon the judgment of a sister state the defense of fraud is available only when the same fraud would have been a defense in an action brought upon the judgment in the state in which it was rendered.”

We also hold that any fraud which may have been practiced in the procurement of the Wyoming judgment should have been pleaded defensively when this judgment was sued on in Colorado and that the Colorado judgment is res adjudicata as to the nonexistence of such fraud. See Ogletree v. Crates, 363 S.W.2d 431, Tex. Sup.

We are also of the opinion that the Colorado judgment is not now subject to attack under the laws of this State for the reason that the fraud alleged is not attributed to the adverse party but is charged to appellant’s own counsel. This is not extrinsic fraud for which appellant may obtain relief against appellee. See Bankston v. Bankston, 251 S.W.2d 768, Dallas Civil Appeals, mandamus denied.

It is our opinion that the Wyoming and Colorado judgments are valid, subsisting judgments under the laws of the respective States and that they are entitled to full faith and credit in the Courts of this State. Art. IV, Sec. 1, Constitution of the United States.

No issues of fact regarding these conclusions are presented by the record and the Trial Court correctly rendered summary judgment for appellee, which we affirm.

Affirmed.

On Motion for Rehearing

Appellant states that we are in error in stating that he took the position that the Statutes and Rules of which the Court was asked to judicially notice form no part of the record in a summary judgment proceeding and should not have been looked to by the Court in granting summary judgment, however, he “concedes that the Court’s statement is true.”

We quote from appellant’s brief:

“Now the Court’s attention is invited to the contents of Plaintiff’s Motion for Summary Judgment in which Plaintiff — for the FIRST TIME brings forth the defense:
a. That under Wyoming Law Defendant was barred by limitations; (Para. I, Tr. 21)
b. That Defendant is barred now because he could have brought the matter up on Colorado (Para. II, Tr. 22)
c. That Defendant is precluded by the laws of Colorado from bringing the matter up now. (Para. Ill, Tr. 23)
d. Para. IV, (Tr. 23 and 24) constitutes a denial of Defendant’s allegations and an argument of law.
Defendant first of all says that the Court below wholly refusing to heed the law of Texas used the above in determining its judgment. The above forms no part of the record in this case for the purpose of Summary Judgment.”

This is the language which misled us. We fully accept appellant’s statement that he did not take the position which we attributed to him.

The motion is overruled.

      . Appellant does not brief this contention. But see, Titus v. Wallick, 306 U.S. 282, 59 S.Ct. 557, 83 L.Ed. 653, 30A Am.Jur., Judgments Secs. 928-930.

      . See. 1-325, Art. 4, Wyoming Code of Civil Procedure.

      . Sec. 1-333, Art. 4, id.

      . Rules 55(e), 60(b), Colorado Rules of Civil Procedure.


author: DENTON, Chief Justice.

text:
    Joe Frank MARTIN, Appellant, v. Teddy JENKINS et al., Appellees.
    No. 7374.
    Court of Civil Appeals of Texas. Amarillo.
    June 22, 1964.
    Rehearing Denied July 20, 1964.

      Huff & Bowers, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellees.
   DENTON, Chief Justice.

This is a personal injury case. Joe Frank Martin sued Teddy Jenkins and Modern Chevrolet Company for personal injuries sustained when he was struck by an automobile driven by Jenkins. The incident occurred some three miles outside the city limits of Lubbock at approximately ten o’clock p. m. on May 20, 1962. Upon the granting of Modern Chevrolet Company’s motion for summary judgment, the trial court submitted the case against Jenkins to the jury on thirty-one special issues. All special issues were answered adversely to the plaintiff and in favor of the defendant, and upon the verdict judgment was rendered that the plaintiff take nothing.

Martin was the manager and operator of the Lasso Club located three miles south of Lubbock on U.S. Highway 87. Some fifteen minutes prior to the accident Martin had asked three or four of his patrons to leave the premises after they had engaged in an argument. About five minutes after the men had been requested to leave, Martin observed two of them fighting across the highway in an open field. Upon observing the fight, Martin testified he began to walk toward the men. In the meantime, Charles Maynard, the club’s assistant manager, had gone to the fight in an effort to stop it. After Maynard had apparently stopped the fight, Buddy Mote, one of the participants, began walking across the highway toward Martin and the club. The testimony is conflicting as to whether or not Martin and Mote fought or scuffled, but they had come within arms length of each other. When they were in this close proximity with each other they were both struck by the Jenkins’ car. Testimony as to distances varied, but it was generally conceded Mote’s body was thrown 135 to 200 feet and Martin 25 to 50 feet. Mote died shortly thereafter, and Martin was severely injured. The most hotly contested issue of the case was the location of the plaintiff when he was struck. Plaintiff contends he was from four to eight feet off the east edge of the highway while the defendant contends he was on the highway itself.

In response to the special issues the jury exonerated defendant Jenkins of all negligence. The jury further found that the plaintiff failed to keep a proper lookout; that he was on the paved portion of the highway immediately before the accident in question; that he failed to yield the, right-of-way to the Jenkins’ automobile; that Jenkins was faced with a sudden emergency and that he acted as an ordinarily prudent person under the same or similar circumstances; that the plaintiff moved into the path of the Jenkins’ automobile; that each of such acts was negligence and a proximate cause of the accident; that the action of Mote did not constitute the sole proximate cause of the accident; and that the plaintiff suffered no damages.

Appellant’s first point of error contends the trial court erred in charging the jury: “You are instructed that under Article 6687b, Section 42 of the Texas statutes, accident reports in the possession of the Department of Public Safety are confidential and may not be produced for introduction in evidence.” This special instruction was given at appellee’s request when reference was made to the patrolman’s report by appellant’s attorney. Patrolman Melton, the investigating officer, was called as a witness by the defendant below. He testified to various physical facts he found after being summoned to the scene. No reference to his written report was made in his direct examination, but plaintiff’s attorney inquired of it on cross-examination and asked that a copy of such report be brought into court the following day. Melton’s superior officer refused this request, thus the report was not offered into evidence. The instruction arose out of a discussion of the attorneys in the presence of the jury relative to the availability of the report. Melton placed the point of the impact by testifying he saw blood in the right-hand lane of the highway. It is apparent plaintiff’s purpose in securing the report was to determine if the report had contained this observation. The officer was asked this question but he couldn’t recall if it did, but continued, “Well, I don’t always put everything down on paper, sir.” Appellant relies on Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339, for the proposition-that an officer’s accident report is not a privileged communication under Section 42 of Article 6687b. The Supreme Court did so hold, but the court’s reasoning was based on the fact the privileged character placed on accident reports by^ Section 42 referred to such reports re-. Qüired to be filed by “every person involved”, that is, by every party to the ac- - cident under Section 39, and did not extend to reports required to be filed by investigating officers called for in Section 40. Although the Supreme Court in Haddad did hold the patrolman’s report was not privileged under the sections of 6687b, the court further held “obviously, Roensch’s report, as such, is a hearsay statement and should be excluded at another trial, if objected to on that ground except such parts thereof only as may tend to impeach any direct evidence given by Roensch.”

Since the decision in Haddad in 1944 the Legislature enacted Article 6701d in 1947 which is referred to as the “Uniform Act Regulating Traffic on Highways”. Section 47 of that act provides:

“Sec. 47. All accident reports made by persons involved in accidents, by garages, or peace officers shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other State agencies having use for the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident.”

It is thus apparent the special instruction given by the trial court was erroneous in that it referred to Section 42 of Article 6687b rather than Section 47 of Article 6701d. We are of the opinion it is the clear intention of Section 47 of Article 6701d to clothe peace officers’ accident reports as privileged communications along with those required of “garages” and “persons involved in accidents”. Section 47 of Article 6701d extends the very same qualifications to the blanket privilege of such reports as does Section 42 of Article 6687b, to-wit: (1)The department may disclose the identity of a person involved in an accident when such identity is not otherwise known; and (2) Or the department may disclose the identity of a person involved in an accident when such person denies his presence as at such accident. We cannot say the special instruction constituted reversible error. The patrolman was fully cross-examined on this matter, and in view of the applicable statute set out above and the corroborating testimony presented we overrule appellant’s first point of error.

Pursuant to the provisions of Rule 167, Texas Rules of Civil Procedure, the defendant requested the trial court to require plaintiff to produce copies of his income tax returns for the years ,.1958-1961. This request was granted and defendant’s counsel was allowed to inspect such returns. The controversy here arises over the 1960 return. It shows plaintiff’s occupation to be a “retail liquor dealer (in a dry county).” The trial court determined this information was not material and relevant to the cause and excluded it from the jury. Appellant contends the trial court should have sustained his motion for a mistrial when ap-pellee’s counsel’s questions implied some unlawful occupation on the part of the plaintiff. The fact plaintiff and other witnesses were questioned about his inventories, gross profits, automobile repairs, and not having a place of business does not, in our view, imply illegal activities. His previous earnings were relevant and material to determine his earning capacity. There is nothing in this record to indicate prior illegal activities of the plaintiff were conveyed to the jury. We conclude no harm is shown.

The trial court did not abuse his discretion in ordering the income tax returns delivered over to it. In our opinion, the court complied with the standards in such cases that were handed down by our Supreme Court in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434; Maresca v. Marks, Tex., 362 S.W.2d 299. In the instant case plaintiff’s income tax reports were subject to discovery in that they were relevant to the issue of his prior earning capacity and loss of earnings. These were material issues in the case. The trial court limited the information to be brought before the jury to those relevant and material portions. It is evident the careful trial judge followed the correct procedure in passing on the discovery motion.

Appellant next complains that the trial court erred in its special instruction relative to requirements of Jenkins’ headlights. The instruction complained of read:

“You are instructed that as a part of the law of this case that from one-half hour after sunset to one-half hour before sunrise a vehicle shall be equipped with lighted headlights which, upon a straight, level and unlighted highway-under normal atmospheric conditions, shall reveal persons and vehicles at a distance of at least 350 feet on high beam and 100 feet ahead on low bean, and that on low beam none of the high intensity portion of the beam shall be so directed as to strike the eyes of an approaching driver.”

By trial amendment plaintiff pleaded the following additional acts of negligence on the part of the defendant Jenkins:

“1. In failing to have his headlights turned on bright enoughi to afford him sufficient visibility at the time and on the occasion in question.
“2. In travelling at a rate of speed such -that he could not- stop within the visible range of his headlight beam.
“3. In driving on the highway with' his headlights turned on dim.
“4. In failing to have his headlights sufficiently bright to illuminate the highway for the distance within which he could stop his car.”

The court submitted special issues in. the language of allegation number four, to-wit: Did the defendant fail to have his headlights . sufficiently bright to illuminate ■ the highway for the distance within which he could stop his car.? The jury answered in the negative. Appellant takes the position the statutory instruction was in conflict with the common-law duty as pleaded and submitted. In view of the record, it seems the instruction as given required a lesser burden upon appellant than the so-called common-law duty pleaded and submitted. The instruction given was in accordance with Section 126, Article 6701d, V.A.C.S. In our opinion, the instruction was not erroneous, but if it can be said to be error, it was harmless since appellant was found to be guilty of four acts of contributory negligence which - proximately caused the collision. Dallas Ry. & Terminal Co. v. Orr (Tex.Civ.App.), 210 S.W.2d 863, affirmed 147 Tex. 383, 215 S.W.2d 862, and Coca-Cola Bottling Co. v. Krueger (Tex.Civ.App.), 239 S.W.2d 669.

Appellant next contends the jury finding that defendant Jenkins’ headlights were sufficiently bright to illuminate the highway for a distance within which he could stop his car was unsupported by any evidence and alternatively was against the overwhelming weight and preponderance of the evidence. In support of this contention appellant relies on Jenkins’ own testimony that he was proceeding 45 or 50 miles per hour just prior to the impact and that he did not see the plaintiff until he was some 12 feet away. However, there is other testimony in this record which we consider to be in support of the jury finding. Jenkins’ lights were on dim and he testified he could see 75 or 80 feet. He was driving a small Chevrolet Corvair, and there was testimony he could stop it within the distance of 80 feet at his speed. There is no evidence Jenkins was not keeping a proper lookout and the jury so found. There was evidence that plaintiff and Mote moved into the path of Jenkins’ car. Jenkins offered_ this as an explanation as to why he did not see them sooner when he testified: “Well, they weren’t out there at that time is the reason my beam didn’t hit them because I was looking straight down the highway, sir.” We are of the opinion the evidence amply supports the jury finding complained of.

Appellant contends there was no evidence and insufficient evidence to locate the point of impact to be on the paved portion of the highway. The jury found the plaintiff was on the paved portion of the highway immediately before the incident in question and that he failed to yield the right-of-way to defendant’s automobile, and that each act was negligence and a proximate cause of the accident. As previously stated, the most strenuously contested issue of the case was the point of impact. There was testimony from witnesses who were at or near the scene who testified the plaintiff was struck when he was from 3-10 feet off the pavement. Other witnesses in the same proximity to the scene placed the point of impact on the paved portion of the highway and in the lane of traffic of Jenkins’ automobile. The jury resolved this marked discrepancy by finding the impact to have been on the highway. In reviewing the record we may not substitute our judgment for that of the jury. To disturb such jury finding it must be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. West v. Carpenter (Tex.Civ.App.), 366 S.W.2d 826; Continental Bus System, Inc. v. Biggers (Tex.Civ.App.), 322 S.W.2d 1 (Refused, NRE); Dyer v. Sterett (Tex.Civ.App.), 248 S.W.2d 234. Appellate courts are without authority to set aside jury verdicts particularly on ■questions of proximate cause in damage suits upon conflicting facts — the undisputed facts must be ample and clear and the circumstances must be exceptional to justify ■such action. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. There are no undisputed facts in this record relative to the point at which the plaintiff was struck. We conclude there was evidence ■to support the jury finding the point of the impact was on the paved portion of the highway.

By appellant’s points of error •eight and twenty it is contended the jury’s bias and prejudices were evidenced by its finding appellant sustained no damages. In view of the jury acquitting the defendant Jenkins of any act of negligence proximately causing the collision, and the findings that plaintiff was negligent in failing to keep a proper lookout; in being on the paved portion of the highway; in failing to yield the right-of-way to defendant’s automobile; that plaintiff moved himself into the path of the automobile; and that each •of such negligent acts was a proximate cause of the collision renders the damage Issue immaterial. These jury findings, supported by the evidence, required the rendition of a judgment in favor of the defendant below regardless of the extent of the injuries suffered by the plaintiff. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334. While a jury’s finding of no damages, when the undisputed evidence shows substantial personal injuries and large medical and hospital expenses, may be cause for suspicion that the answer was induced by bias and prejudice, bias and prejudice may not be presumed when the jury’s finding which acquitted the defendant of negligence and found the plaintiff contribu-torily negligent, is supported by substantial evidence. Southern Pine Lumber Co. v. Andrade, Supra; Dunn v. Sears Roebuck & Co. (Tex.Civ.App.), 371 S.W.2d 731, (Refused, NRE); Dillon v. Moore (Tex.Civ.App.), 367 S.W.2d 70; Sfair v. Adair (Tex.Civ.App.), 223 S.W.2d 648 (Error Refused).

Appellant’s next six points of error complain of the trial court’s refusal to submit six requested special issues. The requested special issues inquired whether Jenkins failed to keep his automobile under proper control; whether he failed to apply his brakes in time to avoid the collision; whether he failed to turn to the left in time to avoid the collision; whether he failed to have his headlights turned on bright enough to afford him sufficient visibility; if he was travelling at a rate of speed such as he could not stop within the range of his headlights; and was Jenkins driving with his headlights on dim. It is well settled that the trial court is required only to submit the controlling issues raised by the evidence. Rule 279, T.R.C.P. We are of the opinion and so hold the trial court properly refused to submit appellant’s requested issues. The court properly submitted the controlling issues raised by the pleadings and evidence. The requested issues were simply different phases or shades of the issues submitted. Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Myers v. Cliff Hyde Flying Service, Inc. (Tex.Civ.App.), 325 S.W.2d 841; English v. Hegi (Tex.Civ.App.), 337 S.W.2d 860.

The trial court used the term “accident” in a number of the defensive issues submitted to the jury. Appellant contends this amounted to a comment on the weight of the evidence and carried the connotation the happening was brought about through no fault of anyone connected with the incident. Appellant has cited no case in support of this contention. Judge Smedley in Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899, held:

“While the word ‘accident’ is often used in the law of negligence as meaning the happening of an event without fault or neglect on the part of any one, in its ordinary meaning it does not negative the idea of negligence on the part of the person whose act brought about the event.”

It is to be noted the issue of “unavoidable accident” was not pleaded nor submitted. Thus, there could be no confusion on the part of the jury with the two terms. Although we do not recommend the use of the term “accident” in reference to negligence issues, we see no harm in its use under the circumstances of this case.

By the seventeenth point of error appellant contends the trial court erred by inquiring into the acts of Jenkins after his discovery of the plaintiff when inquiries should have been when in the exercise of ordinary care the defendant should have discovered plaintiff. The two special issues complained of inquire if Jenkins discovered the presence of the plaintiff in time to have avoided the accident by applying his brakes and by turning his vehicle to the left. In special issue number one the jury had found Jenkins had not failed to keep a proper lookout. The lookout issue was submitted under the usual and approved definition. Thus, the supported finding that the defendant did not fail to keep a proper lookout has the effect of submitting the element of discovery. It is improper to submit various phases of one ultimate issue. Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

Special issue seventeen inquired if the plaintiff was on the paved portion of the highway immediately before the accident in question. Special issue twenty-six inquired if the plaintiff walked or moved himself into the path of defendant’s automobile. Appellant contends these two issues and their corollary issues are a shade or phase of the same controlling issue. This contention is obviously correct, but it presents no reversible error. In the instant case all issues relating to the negligence of the defendant Jenkins were answered in his favor, therefore, any error in the manner of submitting issues as to contributory negligence of the plaintiff are immaterial. Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871, 40 L.R.A.,N.S., 672; Brown & Root, Inc. v. Haddad, Supra; Patterson v. East Texas Motor Freight Lines (Tex.Civ.App.), 349 S.W.2d 634 (Refused NRE).

Appellant’s last point to be discussed complains of the trial court granting the motion for summary judgment of Modern Chevrolet Company. The plaintiff named Modem Chevrolet Company as a defendant along with Jenkins, and alleged Jenkins was in the course and scope of his employment of Modern Chevrolet Company at the time of the collision. Modern Chevrolet Company denied Jenkins was acting in the scope of his employment but was on a purely personal mission. An affidavit by Jenkins confirmed this allegation. The collision occurred on a Sunday evening at the time Jenkins and his family were returning to their Lubbock home from Lamesa where they had attended a baccalaureate service. Jenkins’ affidavit further stated he had transacted no business for his employer while in Lamesa, and that the trip was “strictly for personal reasons”. It is elementary that before an employer can be held liable for the acts of an employee it must be shown the latter was the agent of the employer and was acting within the scope of his employment in doing what he did. Moreland v. Leslie, 140 Tex. 170, 166 S.W.2d 902; J. C. Penney Co. v. Oberpriller, 141 Tex. 128, 170 S.W.2d 607. The allegations in Modern’s motion for summary judgment and the contents of Jenkins’ affidavit are uncontradicted. Unquestionably Jenkins was not acting within the scope of his employment at the time in question. There being no fact issue raised as to this contention the trial court correctly granted the summary judgment as to Modern Chevrolet Company.

One of appellant’s points of error was not briefed and the point dealing with continued leading questions propounded by counsel for appellee is without merit. We do not deem it advisable to further lengthen this opinion by discussing the point.

Having carefully considered this voluminous record and all points of error urged by appellant, we conclude they present no reversible error.

The judgment of the trial court is affirmed.