author: BELL, Chief Justice.

text:
    STATE of Texas et al., Appellants, v. Mary Josephine HAMMAN et al., Appellees.
    No. 14096.
    Court of Civil Appeals of Texas. Houston.
    April 9, 1964.
    ' Joe Resweber, County Atty., of Harris County, and Charles F. Mitchell and Edward J. Landry, Asst. County Attys., Houston, for appellants. .: .

      ■ William H. White, Houston, and Brace-well, Reynolds & Patterson, Houston, of counsel, for appellees.
   BELL, Chief Justice.

The State of Texas and Harris County instituted condemnation proceedings against the Houston Independent School District, the Harris County Assessor and Collector of Taxes and Mary Josephine Hamman to take the fee to slightly more than 16 acres of land lying in the City of Houston for the purpose of using it in connection with construction of facilities that would he a part of State Highway 225, which at the relevant point is commonly known as the La Porte Freeway. On trial in the County Civil Court at Law No. 2 of Harris County, after appeal by Mrs. Hamman from the award of Commissioners, the jury returned a verdict finding the market value of the land taken to be $475,290.00. The verdict also found the value of the balance of the larger tract, of which the 16 acres was a part, would be increased and therefore there was no damage to the remainder. This valuation amounts to 61 cents per square foot. The other two defendants had tax claims that were awarded to them and there is no complaint of this. The State of Texas and Harris County have appealed, asserting certain procedural errors that are alleged to have been prejudicial which resulted in a higher award being made. Appellants do not, however, contend the award is excessive.

Appellants make the following complaints through Points of Error :

1.The court erroneously admitted in evidence testimony concerning the sales price of five tracts of land because they were so small in comparison to the 16 acres that as a matter of law they were 'not comparable because of sise. Appellants assert this resulted in the jury’s making a higher award than it otherwise would have.
2. The court erred in admitting in evidence testimony of the sales price of a 1.22 acre tract and an undivided Y¿ interest in a .51 acre tract that was conveyed by W. Carloss Morris et al to Bayou Properties, Inc., because the undisputed evidence shows it was not an arms length transaction.
3. The court was in error in refusing to give appellants’ specially requested instruction that appellee had “no access, ingress or egress from the 16.713 acre tract — to the La Porte Freeway and its service roads, as such Freeway existed on July 28, 1960, as a matter of right.” July 28, 1960 was the date of taking.
4. The court erred in admitting in evidence pictures of neighboring tracts that were involved in previous sales because they did not portray the properties as they existed at the time of the sales but reflected material changes in the properties.

The property involved was at the time of the taking between seven and eight miles from downtown Houston. It was located east of the Gulf Freeway and west of the Old Galveston Road. The tract would be a little east of the midway point between these two highways. It should be noted that while the 16 acres was taken to provide a facility as a part of the La Porte Freeway, the La Porte Freeway had been open and in use for several years from the Gulf Freeway to Old Galveston Road. If at the time of taking it did not actually physically adjoin a service road of the existing portion of the La Porte Freeway it was certainly very, very near it and was within the area where values were increased because of location adjacent to, if not actually physically adjoining, the La Porte Freeway or a service road as then existing.

We note that the tract is described in appellants’ petition in a manner so that the northwest line of the tract is the same as the southeasterly right of way line of the La Porte Expressway for a distance. of 1105.3 feet. Then there are two more calls for adjoinder with the right of way-line, one for a distance of 215.4 feet and another for 110 feet. Too, it should be noted that while the distance from downtown Houston is as above stated, the tract was surrounded by highly developed areas of the City of Houston. The property, as shown by the evidence, was located in an area best suited for commercial and light industrial uses and service type businesses.

Appellants’ complaint that as a matter of law, because of disparity in size, certain tracts were not comparable to the 16 acre tract, and, therefore, the price at which they sold was not admissible, involved the following tracts:

1. 3,000 square feet sold 12-4 — 56 by R. Rexer to George C. Brown for $4,000.00 or $1.33 per square foot.
2. 1.22 acre tract and a 1/2 interest in .51 of an acre sold by W. Carloss Morris et al to Bayou Properties 11-4 — 58 for $64,-000.00 or $1.05 per square foot. By area this represents one tract of 1.73 acres.
3. A 1.77 acre tract sold 7-24 — 56 by F. R. Rexer to Williams and Wagner Investment Co. for $41,000.00, or 80 cents per square foot.
4. 19,550 square feet sold 4-2-59 by August Wagner to Steel Construction Company for $8,000.00, or 40 cents per square foot.
5. 1/5 of an acre sold by F. T. Topek to H. O. Young on 2-27-56 for $7,500.00, or 37 cents per square foot.

It is significant, we think, that appellants do not contend these tracts are not comparable in other respects. There is evidence that all tracts are in the same economic environment, the sales were not too remote, the distances from the tract condemned were not too great, they had access to the La Porte Freeway or one of its service roads either by reason of fronting thereon or on a street connecting readily therewith, and the topographic features were sufficiently similar. Appellants do not contend otherwise, nor do they contend the tracts were not sufficiently large to in themselves serve the purposes for which they were bought. As above stated, the area is suited best for commercial, light industrial establishments and service type businesses. This type of area calls for varied types of facilities including service type facilities that can use small tracts. Appellants’ contention as applied to the facts here present, that size alone causes higher per square foot value, just isn’t sound. If we look at the above five tracts we will see this demonstrated. They are all relatively of the same size but because of topography and location they brought widely varying prices.

There is no doubt the rule is that there must be a similarity between or comparability with the condemned tract and the tracts sold. However, these terms are by nature relative. Each case must be determined in the light of its facts.

It is within the province of the trial court to determine whether there is such similarity between tracts as to allow testimony as to the sales price of other tracts. The judge has a great deal of discretion in making this determination. His decision that there is sufficient similarity cannot be reviewed except to determine whether there has been an abuse of discretion. City of Houston v. Pillot, 73 S.W.2d 585, C.C.A., reversed on other grounds by Commission of Appeals, 105 S.W.2d 870; Holcombe v. City of Houston, 351 S.W.2d 69, C.C.A., no writ hist.; Joyce v. Dallas County, 141 S.W.2d 745, C.C.A., no writ hist.; Cole v. City of Dallas, 229 S.W.2d 192, C.C.A., ref., n. r. e.; City of Houston v. Collins, 310 S.W.2d 697, C.C.A., no writ hist.

It may also be observed that here testimony concerning sales of other property was really permitted so as to show some of the factors taken into consideration by the expert real estate appraisers in reaching their conclusion as to market value. While there was no limitation placed by the court on the testimony, it is obvious to us from reading the record that the various expert witnesses’ testimony concerning sales prices of other property was based on information they had obtained from investigation and not their personal knowledge. Their testimony as to sales price could not, therefore, be used as substantive evidence of what those prices were and, therefore, the jury could not use those prices as substantive evidence. We state this because where the sales price of other property is introduced as original substantive evidence the rule requiring comparability is stricter. United States v. Johnson, 285 F.2d 35 (9th Cir.).

We cannot say, as a matter of law, that the above mentioned tracts were not comparable to the subject tract.

We are further of the view, in the light of the whole record, that even if it were error to admit the sales prices in evidence, no harm is shown. Rule 434, Texas Rules of Civil Procedure. It will be remembered that the value of the subject tract amounted to 61 cents per square foot. Only three of the sales above complained of exceeded this amount found and two were below the amount found by the jury for the subject tract. Further, it is noted that the sale of three other comparably small tracts, the sales price of which ap-pellee introduced in evidence, showed a value of 76 cents, 53 cents and 63 cents per square foot. While appellants point out in their brief and argument they objected to such testimony, there is no point of error here making such complaint. Further, the testimony is undisputed that up to the time of taking there had been a continuous increase in values in this area. Too, there were some 24 other sales also introduced in evidence and they involved varying sizes of tracts. One, for instance, was a twelve acre tract that in 1956 sold for $1.05 per square foot and in 1958 it sold for $1.28 per square foot.

The award arrived at by the jury, while well in excess of the value given by appellants’ witnesses, was well below the valuations made by appellee’s witnesses.

Appellants complain that the sale from W. Carloss Morris et al to Bayou Properties, Inc. was not an arms length transaction. This involved a 1.22 acre tract and an undivided interest in a .51 acre tract.

When this evidence was offered objection was made to its introduction. However, Mr. Jungman, a witness for appellee, testified he discussed the sale with the buyer and seller and determined the buyer and seller were not the same. There is evidence to the contrary. The trial court having determined the matter of admissibility on conflicting evidence, we may not disturb his determination. City of Houston v. Cambeilh, 333 S.W.2d 192, C.C.A., ref., n. r. e.

'Appellants assert the trial court erred in not giving their specially requested instruction to the effect that the subject property did not have access to the La Porte Freeway and its service road as a matter of right. Their theory is that in 1951 appellee and her husband had conveyed the 9.690 acres of land adjoining the subject tract on the north. They say since the conveyance was in fee simple and was presumably conveyed to the City of Houston for the purpose of constructing thereon a portion of the La Porte Freeway and reserved no right of access, appellee conveyed away her right of access. Another facet to this point, as we understand it, is that at the time of the sale in 1951 and the subsequent opening of the La Porte Freeway there was no existing street adjoining appellee’s property and she therefore had no absolute right to access to the Freeway or its service road when they were constructed.

The basis of this contention is Article 1085a, Vernon’s Ann.Tex.St., which provides in substance that a city may acquire property within its limits to use in constructing freeways and may designate existing streets as freeways providing existing streets may not be so designated without the consent of abutting property owners unless the city acquires the owners’ right of access by purchase or condemnation. The same Article defines a freeway as a highway or street in respect to which the right of access to or from abutting lands has been acquired in whole or in part from the owners.

At least two of appellee’s witnesses had appraised the subject property based in part upon the consideration that it had access to the existing portion of the La Porte Freeway by way of a service road. Appellants’ witnesses, except for one, has based their appraisal in part on the consideration it did not have any such access. Two of appellee’s witnesses testified the tract did as a matter of fact have access to the freeway by way of one of its service roads. One of them expressly testified he had discussed the matter with the City of Houston and State Highway Department representatives and they had assured him the tract did have access to a service road. One of appellants’ witnesses also testified the tract did have access to the Freeway by way of a service road and he considered such factor in making his appraisal. It is also noted that in Exhibit 10 introduced by the appellants, which was an aerial photograph showing the then existing part of the La Porte Freeway and adjoining properties, a service road is shown immediately in front of the subject property. The same exhibit shows service roads on either side of the Freeway all the way from the Gulf Freeway to the eastern side of the subject tract. There is testimony that there is no fence between the subject tract and the service road such as is usually built by the public authorities to cut off access. Too, there is testimony that other tracts up and down the La Porte Freeway are exercising the right of access to the service roads adjacent to them. We particularly note these evidentiary facts because .they are sufficient to show that the public authorities, if they have the right to deny access, are not exercising the right but have a policy along this Freeway of making it accessible for all adjoining properties. There is testimony that the very purpose of service roads is to give adjoining properties access to the Freeways. Note also that the statute defining “freeway” defines it as a street or highway in respect to which the right to access has been acquired from the owner in whole or in part.

Appellants urged that appellee, through counsel, stipulated she had no access. We do not think the stipulation made by counsel is in reason subject to such construction. Appellee’s counsel merely stipulated that appellee and her husband conveyed the 9 acre tract described in the deed of 1951 to the City of Houston by a general warranty deed conveying fee simple title. Immediately following this stipulation counsel for appellants stated to the court and jury that his purpose in offering the deed was to show the City owned a fee simple title and “that there is no access to this tract of land to the La Porte Freeway as it exists presently.” Nowhere did appellee’s counsel agree or stipulate that appellee did not have access. Throughout appellee was contending as a matter of fact her land did have access to the service road.

We assume that under the statute and facts present appellants could legally deny appellee the right of access but under all evidence they had not done so and were as a matter of fact allowing owners of property abutting on service roads along the La Porte Freeway to exercise a right of access.

The court did not err in refusing the specially requested instruction. It was not substantially correctly worded as required by Rule 279, T.R.C.P. It was incomplete and as presented constituted a comment on the weight of the evidence. The rule applicable is that announced in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; and State v. Reece, 374 S.W.2d 686, C.C.A., no writ hist. Where property is legally subject to a restrictive use but evidence shows in reasonable probability that such restriction will in fact be removed within the reasonable future, the jury in appraising testimony as to value and in determining value may consider such fact. The principle as applied here, in the light of the evidence developed, would call for the court, on proper request, to in effect instruct the jury that the City of Houston and the State Highway Department had the right to deny appellee the right of access to the service road, but these authorities also had the right to permit access, and that in determining the value of the tract taken and in appraising testimony they could consider whether at the time of taking these authorities had denied appellee the right of access or had permitted access and whether in reasonable probability had the tract not been taken these authorities would have in the reasonable future permitted or denied the right of access.

Finally, appellants urge as error the action of the trial court in admitting in evidence Defendant's (appellee’s) Exhibits 18, 19, 20, 22, 26, 28, 29, 30 and 31. These exhibits were photographs taken by Mr. Hawk an expert witness on value for appel-lee. The pictures were all taken in August or September, 1960. Exhibit 26 was a picture of the Southeast Y. M. C. A. Building on the Freeway that had been built on one of the tracts that had been sold and the sale price of which had been introduced. The building had been constructed between the time of the sale and the date of taking the subject tract. The picture was offered to show how the area was developing and to evidence use to which land in the area was adaptable. It reflected relevant information and was admissible.

Without noticing each of the other exhibits, it will suffice to say they were pictures of various tracts of land in the area that had been sold prior to the date of taking of the subject tract. Testimony had been given as to sales price of each tract and some description of the tracts, including the topography. The tracts pictured had been orally described, in varying degrees, as being in part low and irregularly surfaced land. Part of the subject tract, though a relatively small part of it, was low and irregularly surfaced. The pictures, it was made clear in the record, were not taken at the date of the sale of the particular tract portrayed and were not introduced for the purpose of showing the condition of the particular tract at the time of sale. Some of the pictures showed substantial improvements that were on the land at the date of taking. These obviously were admissible to show the fact and type of development in the area of the subject tract. Others of the pictures showed how fill had been used in low places on the tracts that had been orally described so as to make them usable in connection with the improvements that had been made. The pictures were all relevant to show development in the area and how even low land, such as a part of the subject tract could, by the use of some fill, be made readily usable.

The judgment of the trial court is affirmed.

      . The terms La Porte Expressway and La Porte Freeway have been used interchangeably' as in the record. . - . ' • -


source: Caselaw Access Project

license: Public Domain

text:
    Tom F. POSER, Appellant, v. GENE MOHR CHEVROLET COMPANY et al., Appellees.
    No. 14276.
    Court of Civil Appeals of Texas. Houston.
    Feb. 27, 1964.
    Rehearing Denied April 2, 1964.

      Tynes & Turk, and Raymond L. Mc-Dermott, Houston, for appellant.
    O. Joseph Damiani, Houston, and Long & Aronson, and Tom Long, Austin, for appellee.
   BELL, Chief Justice.

Appellant recovered judgment against Charles N. Hoke for $467.50 as damages for personal injuries sustained by him in an automobile accident which occurred July 6, 1960. The damages consisted of compensation of $374.00 for lost wages, physical pain and mental anguish and $93.50 for doctors and hospital expense.

An intervenor, the owner of the automobile which appellant was driving at the time of the accident, recovered judgment against Hoke for the damages caused its automobile. Recovery by intervenor is not complained of here.

Appellant, as plaintiff, sued Gene Mohr Chevrolet Company and Charles Hoke, who was a salesman working for it seeking to recover damages in the amount of $52,500.-00 for personal injuries received by him when the automobile he was driving was hit by an automobile belonging to the Gene Mohr Chevrolet Company and driven by Hoke in the City of Houston. In his petition he asserted the injuries received by him in the accident consisted of injury to the left elbow, a whiplash injury to his neck, a condition causing headaches and in all probability a protrusion of a' lumbar -disc. Following, such allegations it was asserted that if it should be shown that he had a pre-existing condition, such condition was neither painful nor disabling hut was aggravated and made to flare up by reason of the accident and thus became both painful and disabling and it would continue to cause physical pain and mental anguish for life.

It will thus be seen that appellant’s theory was that the accident of July 6, 1960 was the cause of his injuries, or, if he had preexisting conditions they were not painful or disabling but were activated by the accident, causing pain, disability and the attendant medical and hospital expense and other damages.

The theory of appellees, as shown by their pleading, apart from the denial of any liability on various grounds not necessary to notice, was that any injuries received in the accident, if any were received to the appellant’s back, were minor and at most slightly aggravated previously existing conditions such as a congenital anomaly in the lumbar region and disc conditions brought about by previous injuries. Too, its theory was that any disability was brought about, not by the automobile accident, but by an accident of July 14, 1960, which of itself either caused the appellant’s trouble or aggravated the conditions antedating the automobile accident of July 6, 1960.

Appellant, apart from asserted procedural errors to be noticed later, complains that the jury’s findings that past medical expenses were $93.50; that the main damages were $374.00; and, there would be no future medical expenses, are all contrary to the overwhelming weight and preponderance of the evidence.

On July 21, 1960, appellant went to the doctor and the examination made by the doctor, followed by consultation between doctors, led to the determination that an operation should be performed to correct a protruding lumbar intervertebral disc at the third level (L-3). Due to unavailability of a hospital room the operation was not performed until August 2. It was performed by Dr. Robertson, a very highly regarded neurosurgeon. In this connection quite extensive hospital, medical and doctor’s bills were incurred and the evidence will sustain a finding of substantial future medical expense, past mental anguish and physical pain and impairment of earning capacity substantially in excess of that found by the jury. If it can be said that the overwhelming weight and preponderance of the evidence shows that the accident of July 6, 1960 proximately caused the intervertebral disc protrusion or so aggravated the previously existing condition as to require the operation, then the jury’s answers above noted are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

In determining whether a jury’s answer to an issue is against the overwhelming weight and preponderance of the evidence, we must consider all of the evidence, both that which supports the answer and that which militates against it. If after considering all of the evidence we conclude that the answer is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, a reversal for new trial must result. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (S.Ct.); Thompson v. Quarles, 297 S.W.2d 321 (C.C.A.), ref., n. r. e.; Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (C.C.A.), ref., n. r. e. We must, therefore, notice the evidence in some detail. The same evidence will be determinative here of the complaint as to each answer.

The operation reflected as congenital condition of the L-5 disc known as spondyloly-sis, a spina bifida occulta, and a protruding L-3 intervertebral disc which was corrected. The post-operative statement of Dr. Robertson contains the comment that “This patient had been subjected to numerous brutalities by the Russians during World War II where he was a prisoner of war for four years and endured considerable torture, trauma to his back with rifle bullets (sic), etc., it is believed that it is quite likely that the L-3 disc was injured at this time and has degenerated over this period of years. The other lesion; defects of L-5 is a congenital lesion in all likelihood and has become symptomatic only recently with injury.”

Mr. Poser testified he was in the German Navy during World War II. During the war he was wounded in the stomach and in the legs about and below the knee. In 1944 he was captured by the Russians and was held a prisoner for four years. While in prison camp the Russians were guilty of numerous atrocities toward him, but we need only notice that on numerous occasions they beat him in the low part of the back with rifle butts. On occasion it was so severe he had blood in the urine. After the war he worked in the Merchant Marine. He stated these beatings were followed by severe lumbar pain but the episodes were transient. He did his work in the Merchant Marine without incident in connection with his back except for transient episodes of dull aching. The pain did not persist. In 1952 he had a stomach operation in Montreal, Canada. In that connection he was given a spinal anesthesia. Either the next day or six or seven days later he had paralysis from the low back down for several days. X-rays were taken of his back and he was informed there was some kind of fracture of the vertebra. He came to Chicago in 1955. He did heavy work without incident. His dull back aches came and went with changes in the weather. In 1956 he came to Houston and the latter part of the year went to work with Transcontinental Gas Pipe Line Corporation. He worked as an engineer. He was given a physical examination by the employer’s physician. His reflexes were checked as were his heart action and blood pressure. He does not remember whether his back was checked or not, but thinks it was. A great deal of his work was in the ‘field and he lifted heavy instruments and had to do climbing. In 1958 he stooped down to lift a 5-pound instrument and when lifting it he experienced a hard pain in his low back that felt like a knife cutting. The pain radiated through the left leg. He had numb feeling in his legs. He was limping. Mr. Brown, his co-worker, helped him and prevented him from falling. He lay down in the office a good while. He did not go to a doctor and did not lose any time from work. Since that time he says he has had dull aches only with change of weather and these have not interfered with his work. At the time of the automobile accident he had the seat belt fastened. The right front fender of Hoke’s automobile hit his left front fender at the light. About $400.00 damage was done to each automobile. His head hit the top of the steering wheel as he went forward, his left elbow hit the window and for a short moment he felt a sharp pain in his back a little lower than the belt line. At the scene of the accident his arm hurt; he had a little headache, and his back hurt a little. He was put in an ambulance and was taken to St. Joseph’s Hospital. He lay on the stretcher in the hall until a doctor was called. He had no doctor and Dr. McReynolds, an orthopedics specialist, was called by someone at the hospital to attend him. His arm was x-rayed. His back was not. He complained to Dr. McReynolds that his back hurt a little. The doctor had him bend over and tapped his back with some instrument. The doctor gave him some medicine for pain. He was released from the hospital that day and went home and. lay down. He took the medicine and was “droozy.” The next morning about 8:30 he went to the office but did not feel like going into the field. He stayed in the office about 45 minutes doing some mathematical work and Mr. Croft made him go home. He still had some pain but the pills he took eased it. He went home and lay down. The next day, which would be Friday, he went to see Dr. McReynolds and then went home. He still had pain and on Monday went to see Dr. McReynolds. He worked part time on Monday in the office. Before July 14, 1960 he did not do any lifting because he was in pain. He was still taking his pills. On July 14 he went to the field station at Tomball. He helped Mr. Westbrook lift an MIT indicator off a small car and put it near where it was to be set. It weighed about 100 pounds. They lifted it together. After it was set he bent down to put some screws in it. That is when “I really got hurt." The pain really got worse. It felt like sharp cutting and the pain went down his leg and “also inside.” Sharp pain about the same as at the time of the automobile accident. He had had pain since the accident but pills relieved it. Since the accident the pain would be worse one day and then get better. It was getting slightly worse before July 14. The pain really got strong after the incident of July 14. He went in to the lab and he was then taken to Dr. Tuttle. Dr. Gordon, Dr. Tuttle’s partner, sent him to Methodist Hospital. On July 11, 1960 he gave a statement about the accident. It was given at his office. It was read to him and witnessed by his co-worker and friend, Bill Ameen. The statement contained this with regard to injuries received in the automobile accident: “My left arm was injured. My neck was also hurt for a little while. As far as I know, I wasn’t injured in any other way.” He explained he didn’t mention his back because Dr. McReynolds had said he could go back to work and he had nothing to worry about.

Dr. McReynolds was not called as a witness. The St. Joseph’s Hospital record contained this entry under the topic “Treatment” : “L. elbow x-ray.” Under remarks this entry appears: “left arm hurt, back hurts.” Mr. Chebret, one of the investigating officers, went to the hospital to see about the injuries. There he made out an injury card showing only pains in the left elbow. The information, according to Officer Rambie was gotten from the hospital chart, the nurse, and Mr. Poser.

On July 21, 1960, at the Methodist Hospital Mr. Poser gave a history to Dr. Moore. This was the history Dr. Robertson went over with Mr. Poser before the operation. It shows intermittent back pains of 16 years’ duration. It gives information about the beatings from the Russians, the pains that followed which later resolved, the operation in Canada and the 1958 incident. Of the operation in Canada the history shows he was paralyzed from the waist down for about a week and that x-ray was interpreted as showing a fractured vertebra in the lumbar region. It shows that in the 1958 incident appellant had a dull ache and pain radiated down the posteromedial portion of (R) lower extremity to medial aspect of (R) foot. Pain from time to time is precipitated by coughing, vomiting and straining at stool. The history gives this concerning the automobile accident of July 6: “Involved in a car accident resulting in superficial injuries of (L) arm. Hospitalized in St. Joseph Hospital.” Then follows description of pain resulting from the July 14 incident, and there is the statement: “ * * * the pain has persisted — this is the first time it has been constant for such a long period of time."

The defendant Hoke testified that at the scene of the accident appellant told him he had a broken place on the skin on his elbow and as far as he could tell there was nothing wrong. When Hoke went by St. Joseph’s Hospital Mr. Poser was on a stretcher in the hall and told him he didn’t think there was anything wrong, that he was feeling fine. This was before examination by the doctor.

Mr. Underwood, a co-worker, testified he had worked with appellant since 1957. He had never noticed any back trouble before the automobile accident. He heard him from time to time, just about like everybody else, complain about his back. He did not know of the 1958 incident. When Mr. Poser came back after the automobile accident he complained of problems with his back. He doesn’t remember what part of his back he complained of as Mr. Poser was pretty vague. He didn’t send him to drive a tractor. After the accident Mr. Poser seemed to be tender and to proceed carefully. He gives about the same description as does Mr. Poser of Mr. Poser’s action on July 14 following his injury, that is, his complaints and his limping.

Mr. Fryer, a -friend, worked very little with appellant. However, they visited each other frequently, particularly before either of them was married. They helped each other move furniture. Mr. Poser did not appear to be having back trouble. On July 6 he went to St. Joseph’s Hospital. Appellant was lying on a stretcher in the hall. Mrs. Poser, who was a nurse on duty at St. Joseph’s had called him. Appellant complained of his left arm and back. Dr. McReynolds had appellant stand up and make a few turns and bend over, and the doctor tapped him on the back. He took appellant home and appellant was more or less hobbling around. He never looked like that before. For the next few weeks appellant seemed to be getting worse. He never heard Mr. Poser speak of the 1958 incident.

Mr. Storey, who was superintendent of a construction company, was coming to Houston from Lake Jackson and witnessed the collision of July 6. When appellant got out of his automobile he had both hands holding them across the small of his back. He walked bent over and had an expression of pain on his face.

Mr. Westbrook had known appellant or 8 years at the time of trial. He had worked with him at the Sour Lake Station 7 or 8, and not over 12, times. His contact was casual. Prior to the automobile accident he never saw appellant appear to be having back trouble. He never had trouble lifting things. He saw appellant at Tomball Station 10 days or two weeks after the accident. He and appellant lifted the MIT Indicator and set it on the stand. Appellant straightened up kind of like his back was stiff, like he might have a catch in it or something. Appellant did not say anything. He made no outcry. He did not give the appearance of having received an injury. About 20 or 30 minutes later he saw appellant in the shop and appellant told him his back was hurting. Poser then said he had been in an automobile wreck. He did not say he hurt his back from picking up the indicator. On July 14, before handling the indicator, appellant was making no complaints. He didn’t see appellant limping that morning and did not see any grimace of pain on his face.

John O. Brown, Jr. was a fellow worker who was not in close contact with appellant until 1958. Prior to the automobile accident, so far as he knew, nothing was wrong with him. Appellant always did his part. He was with appellant at the time of the 1958 incident. It occurred at a compressor station in Virginia. Appellant reached for a small instrument and then couldn’t straighten up. He caught hold of appellant and helped him a little bit. It wasn’t serious. Appellant went inside, sat down about an hour and then went back to work and made no complaint. After that he seemed all right. He doesn’t remember whether appellant came back to work between the time of the automobile accident and the time he went to the Methodist Hospital.

Dr. Robertson first saw appellant at the Methodist Hospital July 26, 1960. He did not take a history because Dr. Moore had taken it, but he went over the history with appellant. He testified appellant had a spondylolysis of the 1^5 level and this could account for his recurring pains. He also found that he had a protruding inter-vertebral disc at the L-3 level. The disc had degenerated over some period of time. He was certain of the spondylolysis and that this had had a lot to do with the development of symptoms in the lower extremities. He does not doubt that banging with rifle butts set off some of the episodes. He does not know it would be reasonable to conclude when the L-3 difficulty occurred. There is a possibility the degenerative part could have been there a considerable period of time. There is a possibility that the protrusion could have been caused by the accident but the back pain did not become severe until he picked up the MIT Indicator on July 14. Both the spondylolysis and pressure on a nerve at L-3 operated to cause the pain. The doctor, in trying to determine what set off the pain, stated: “I don’t know how you settle this thing.” He stated probably the shaking in the automobile set off the pain. He thinks the incident of July 14 produced more pain, but it began following the automobile accident. He was then asked this question: “Then it was the accident, in your opinion, doctor, that required ultimately this man to have to submit to surgery ?” The answer was this:

“Permit me to say it did precipitate symptoms. This situation is sort of confusing because we don’t know and I don’t think there is any way of telling which thing was involved— whether the spondylolysis vertebra or the disc caused pain following the accident. I think probably this shaking up that he had as a result of the accident. The 14th incident produced more pain but it began following the accident.”

It is reasonable to assume aggravation in the changes already present in the disc. In answer to the question as to what in his opinion happened to the spondylolysis in the accident the witness answered:

“That is why it is so confusing. I couldn’t say which one of these was causing his back pain. It is difficult for a patient to say exactly where the level of pain is. It is difficult to localize pain when you have a lot of it in a small area.”

Then the question was asked as to whether in reasonable probability the condition of spondylolysis was aggravated by the accident. The witness answered: “I don’t know, to be honest. I would guess that it was, because it had been so easily disturbed on previous occasions. I am sure this could very well have accounted for his back pains on previous occasions.” The witness then, reluctantly, said he thought in reasonable probability it did aggravate the spondylolysis. He was then asked if the hospital hills were made necessary by the accident. He answered: “Yes and no. It started a pattern of pain and the pattern of pain caused surgery.” He said he would have to relate it to the accident and the incident of July 14. The witness was then asked if the actual disc protrusion in his opinion ante-dated the July 14th incident. He answered: “I think so.” He stated you could not put your finger on the initial injury. An injury starts degenerative changes. There may be several days before nerve root pressure sets in. He was then asked: “Is that what happened in this case ?” His answer was: “I don’t know. There are so many cases where you can’t determine or put your finger on what actually produced the injury to the disc.” Then he was asked if in his opinion there was traumatic injury to the disc in the automobile accident and the witness answered: “I think that must be assumed.”

On cross-examination the witness stated the symptoms are more apt to be intermittent with spondylolysis. With a ruptured disc the symptoms and pain are, more often than not, constant. Appellant had a degenerative disc and often one single event will cause the rupture followed by persistent pain. Appellant’s complaint was of intermittent pain covering a 16 year period. The witness just did not know if such a blow as from a rifle butt would commence degeneration. “This is sort of never never land.” When a disc becomes degenerated very little trauma can cause aggravation of symptoms. Without further detailing the doctor’s testimony, we think it may be characterized by stating that with reluctance he stated the automobile accident in reasonable medical probability was the precipitating cause of the pattern of pain that required surgery.

We are unable, after a careful consideration of all of the evidence, the substance of which we have detailed above, to say that the findings of the jury are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We particularly note that just a few days after the accident, in the statement appellant gave, he specifically mentioned injuries’ he received in the accident and did not mention a back injury. Then when he went on station on July 14 to set the MIT Indicator he made no complaint of back pain until after the incident with setting the indicator. Then when he gave the history to Dr. Moore at Methodist Hospital he very carefully detailed his back trouble in the Russian prison camp, the paralysis in Canada following the spinal anesthesia, the fact that an x-ray taken at the time had been interpreted as reflecting a fractured vertebra, the incident of 1958 and the incident of July 14, 1960; but when he mentioned the accident of July 6 he didn’t even mention any injury to his back, but stated he received a superficial injury of the left arm. We are not unaware that there is evidence of his complaining of back injury at St. Joseph’s Hospital following the accident. This complaint is consistent with the conclusion that the injury was very slight when you consider his subsequent statements minimizing the pains in the back. Too, Dr. Robertson’s opinion that the automobile accident probably set off the pattern of pain that made surgery necessary, when viewed in the light of all of his testimony, appears to be a most hesitant conclusion. Too, we gather that the primary basis of such conclusion is the description of the pattern of pain described to him by the appellant which is inconsistent with the statements made by appellant on the other occasions we have mentioned. While a consideration of the evidence might well support a jury’s conclusion that there was substantial injury from the accident, we cannot say a contrary conclusion is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

At the commencement of trial appellant made a motion in limine asking the court to instruct appellees’ counsel not to go into the question of whether appellant was a Nazi. It was asserted that in fact he was not but merely served in the German Navy during World War II. The motion was sustained to the extent that appellees’ counsel was instructed not to go into the matter without first having approached the bench out of the presence of the jury so the court might determine its relevancy. While appellant was testifying his counsel went into the educational background. On cross-examination appellees’ counsel was examining appellant concerning his education. Then this occurrence took place:

“Q Now, Mr. McDermott asked you about your education. I believe you entered cadet school in Potsdam when you were eleven?
“A Yes, sir.
“Q And at that time, were you also in the Scharnhorst?
“A That was before.
“Q What is the Scharnhorst?
"A It is a youth group of the Stah-lam.
“Q Is that the same thing as the Hitler Youth Movement later on ?”

At this point appellant’s counsel objected a * * * that jg -|.00 remote.” The court then retired the jury. In the absence of the jury the trial court made clear that hr interpreted the last question as a violation of his instructions. After some short discussion, the jury was returned to the box. Appellant’s counsel then moved the court to instruct the jury to disregard the last question for all purposes, and such instruction was given.

When more than superficial notice is made of the occurrence, no reversible error is shown. Only the most suspicious could read into it the suggestion that appellant was a Nazi. An analysis shows that appellees were going into appellant’s educational background, which was relevant. He stated that when he was eleven years old he entered cadet school at Potsdam and before that he was in the Scharnhorst. The inquiry was made as to whether later on the Scharnhorst was the same thing as the Hitler Youth Movement. The only reasonable reading of such shows that before appellant was eleven years old he was a member of an organization known as the Scharnhorst and that later on this organization of which he had at one time been a member became the Hitler Youth Movement. Even if it could be said to be error, we are of the view that in the light of the whole record it was not such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. The record reflects appellant had become an American Citizen. When the injury occurred he was 35 years old. When he belonged to the Scharnhorst he was just a boy less than eleven years old. The relation of the numerous indignities and atrocities inflicted on him by the Russians, even if he was a Nazi, were such as to but excite sympathy for him or any human being.

Appellant sued not only Hoke, the salesman, but Gene Mohr Chevrolet Company. Judgment was rendered in favor of Gene Mohr Chevrolet Company because the jury-found that at the time of the automobile accident Hoke was not acting within the course and scope of his employment. This finding is attacked as being against the overwhelming weight and preponderance of the evidence.

The evidence reflects that on the day in question Hoke had finished his work as a salesman on the floor of his employer. His employer’s business was located in the City of Bellaire, which adjoins the City of Houston on the west. A customer who had bought an automobile from Hoke lived on Binz Street, just west of Almeda Road. Her home is a few blocks north of the intersection of Almeda Road and Holcombe Drive where the collision occurred. Hoke drove to the customer’s house to deliver her contract and to collect some money owed in connection with her purchase. She gave him a cashier’s check for $500.00, which was in excess of what Hoke was to collect. He returned to his employer’s office and got change and delivered it to the customer. He then started to his home in the City of Dickinson, which is south of Houston. He was headed toward Dickinson at the time of the collision. There are several routes that may be taken from Houston to Dickinson and the route taken would largely depend on the point of departure from Houston. Usually Hoke went from Bellaire south on Post Oak Road, which is in Bellaire, and on the west part of Houston, and on to Dickinson by way of Pearland and Friendswood. The day of the accident he intended to turn on Hol-combe and go to the Gulf Freeway and on it to his home. He had not taken this route before. Considering his point of departure this would be the most direct route. Hoke testified he had finished all work for the day. He had a date that night and was going home to get ready. The automobile he was driving belonged to his employer. He paid for the gasoline used. The employer took care of greasing and oiling it. He used it as a demonstrator. On occasion he had demonstrated it at Dickinson. He had no plans at the time of the collision to demonstrate it to any one. He had no plans to do any business for his employer that day. He was paid on a commission basis.

We are of the view that the Jury’s answer is not contrary to the overwhelming weight and preponderance of the evidence.

Appellant objected to the charge of the court insofar as it contained a qualifying instruction relating to damages. The court instructed the jury not to consider as an element of damage nor allow anything for physical pain, mental suffering, etc., because of any condition or disability which existed before July 6, 1960, except insofar as such condition or disability may have been aggravated by the collision in question. This is, of course, a correct charge and is not objected to. In the paragraph immediately following, the court gave this instruction:

“You are further instructed in connection with such Special Issues you will not consider as an element of damage, nor allow anything for, any physical pain or mental suffering, if any, or loss of earnings or loss of earning capacity, if any, or medical expenses, if any, because of any condition or disability which may have occurred after July 6, 1960, and which was not proximately caused by the collision in question.”

The appellant objected to this instruction because it omitted any element of aggravation. His objection makes the point that the charge does not allow the jury to consider that the injuries received in the incident of July 14 may have been aggravated and made worse by reason of the accident of July 6, 1960. At the same time appellant requested the court to add to the instruction this language: “except insofar as such subsequent condition may have been or may in the future in reasonable probability be, aggravated by the collision in question.”

The law in our State is that one who receives an injury as a result of the negligence of another can recover all damages proximately traceable to the primary negligence, including subsequent aggravations the probability of which the law regards as a sequence and natural result likely to flow from the original injury. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480.

As to the charge given, it will be seen that it allows recovery for a subsequently occurring condition or disability if the jury finds it was proximately caused by the collision in question.

We are of the view that the instruction was too restrictive and that the objection made was sufficient to point out the error.’

It will be noted that in the paragraph immediately preceding, which dealt with the matter of pre-existing injuries or conditions, the court expressly authorized the jury to take into consideration in determining damages any aggravation of them that was caused by the accident of July 6. However, in the paragraph objected to, the court expressly stated the jury could not take into consideration any condition or disability occurring after July 6 which was not proximately caused by the collision in question. The jury might well conclude that in the light of the preceding paragraph the court was telling them they could not consider the fact that the subsequent innocent incident of July 14 may have aggravated the injuries received in the July 6 accident. Under the evidence here, we think a jury might well conclude that the accident of July 6 aggravated the conditions existing at the time and created a worse condition upon which the innocent act of July 14 operated, thereby aggravating the injury of July 6. The effect of the instruction, when we consider it in connection with the preceding paragraph', was to lift out of the term “proximate cause” the matter of aggravation.

Appellant mentions that subsequent aggravation was not pled, but no cases are cited showing such was necessary. While we have found no cases specifically involving subsequent aggravation, and the matter of pleading, we have found Texas cases dealing with aggravation of previously existing conditions. They hold that where the question of aggravation is raised by the evidence, the jury is entitled to consider such in assessing damages and that a charge given which authorized such was not error. Galveston, H. & S. A. R. Co. v. Coker, 135 S.W. 179 (C.C.A.), writ ref.; Gulf, C. & S. F. R. Co. v. Brown, 16 Tex.Civ.App. 93, 40 S.W. 608 (C.C.A.), error dism. We see no reason to apply a different rule as to subsequent aggravations that may be legally material. It is a matter of aggravation being a proximate cause.

We are not to be understood as approving the particular form of instruction as suggested by appellant, but his objection to the instruction given was sufficient to point out the error discussed.

The jrtdgment insofar as it decrees that appellant take nothing against the employer, Gene Mohr Chevrolet Co. or, more accurately its Receiver, H. A. Phillips, who was during trial substituted as a party-defendant, is affirmed because of the jury finding that Hoke was not acting within the course and scope of his employment.

As to the judgment between appellant and Hoke, it is reversed and remanded because of the error in the Court’s charge.

On Motion for Rehearing

Appellee Hoke has filed his motion for rehearing complaining among other things, that this Court failed in its opinion to make any statement with regard to his motion to strike appellant’s brief because not filed in this Court within thirty days after the filing of the transcript and statement of facts as contemplated by Rule 414, T.R.C.P. It is the position of the appellee that this Court can only extend the time to file a brief upon motion filed showing good cause and that if there is no such motion the Court must refuse to file an untimely presented brief and strike any brief filed late. It is his further position that under Rule 415, T.R.C.P., and Rule 414, the appeal must then be dismissed.

We do not so construe the rules. The two must be construed together.

Rule 414, after providing that appellant shall file his brief within thirty days after the filing of the transcript in the Court of Civil Appeals and that appellee shall have twenty-five days thereafter in which to file his brief, provides as follows: “Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may extend the time for submission of the case. * * * ”

Rule 415 reads as follows:

“When the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless' good cause is shown for such failure and that appellee has not suffered material injury thereby. The courts mayr however, decline to dismiss the appeal,. whereupon it shall give such direction-to the cause as it may deem proper.” (emphasis here and elsewhere ours)

We are of the view, and hold, that the power of the Court of Civil Appeals to allow late filing of a brief is not limited to instances where good cause may be shown unless late filing would result in material injury to the opposite party. We hold the Court has power to allow late filing of briefs if the opposite party will not be injured even though no good cause is shown and although no formal motion is filed. When construed together these rules mean that Courts of Civil Appeals may allow late filings if no injury results to the opposite party and must do so if good cause is shown and no harm results to the opposite party. The italicized portion of Rule 415, above quoted, leads inescapably to this conclusion. Even if injury would result to the opposite party, we think the Court has the authority to allow late filing if injury can be removed by a resetting of the case or in some other manner.

Appellee has cited the following cases in support of his motion: Aldridge v. Clinton Park Development Co., 187 S.W.2d 255 (CCA), no writ hist.; Mayrath v. Mayrath, 335 S.W.2d 873 (CCA), no writ hist.; Sneed v. Moore, 330 S.W.2d 472 (CCA); no writ hist.; Black v. Aldrich, 339 S.W.2d 340 (CCA) no writ hist.

We have read all of the cases cited. We will not notice them separately. None of them has held a want of power in' the Court of Civil Appeals to allow late filing of a brief unless the party has shown good cause for delay. Each of them was an instance in which the Court in the exercise of its judicial discretion refused to allow late filing and dismissed the appeal because the Court was of the view that under the facts there present no good cause for failure to timely file was shown and presumptively, under the facts there appearing, the opposite party would be harmed.

Now to the facts here involved, insofar as filing of appellant’s and appellees’ briefs are concerned. Appellant did not file his brief until December 27, 1963. The record was completed in this Court by the filing of the statement of facts on July 12, 1963. The case was, on November 7, 1963, set for submission for February 6, 1964, and the attorneys for appellant and appellees were notified of such setting by letters of that date. After appellant filed his brief on December 27, 1963, appellee, on January 21, 1964, filed his reply brief and his motion to strike appellant’s brief and to dismiss the appeal. In the motion appellee recited the facts with regard to the late filing and stated the delay “has resulted in injury to appellees.” Nothing but this conclusion concerning injury was stated. He does not complain that he had inadequate time to file a reply brief. He was given the full 25 days following the filing of appellant’s brief as provided for in Rule 414 in which to file his brief. Fie does not complain this was inadequate. He did not ask for any additional time to file his brief.

The real purpose of Rule 414, in our view, is to create a situation where when a case in the ordinary course of events is reached for submission it will be ready for submission in its order on the docket and there will be no delay in submission because of failure to file briefs.

The tremendous volume of litigation in this Court is such that it is impossible, after a record is filed in this Court, to obtain a setting within a time so as to make compliance with Rule 414 necessary. The result is that this Court has a well known practice of long standing that the appellant may, without motion, file his brief provided it is filed as much as 40 days prior to the date on which the case is to be submitted, and that appellee may without motion file his brief at any time prior to 15 days before submission. If either wishes further delay a motion must be filed. This rule of practice has been known to appel-lee’s counsel since November 11, 1963. Ap-pellee filed a thorough and excellent brief. We find he has been in no way prejudiced by the late filing of appellant’s brief.

Appellee’s motion to strike appellant’s brief and dismiss the appeal is denied.

On the merits of the appeal, appellee complains that we were in error in reversing the case because of the court’s charge. He particularly urges that since the innocent accident of July 14 was not pled, appellant was not entitled to an affirmative submission that the jury could consider its having aggravated, if it did, the injuries of July 6. He urges that when the court said the jury could not consider a condition or disability which may have occurred after July 6 which was not proximately caused by the collision in question, this correctly stated the law.

As we pointed out in our original opinion, this, as an abstract proposition of law, is correct, but when the paragraph immediately preceding which dealt specifically with aggravation of previously existing injuries is considered, we think the jury could and would reasonably conclude that aggravation by the subsequent injury could not be considered. The court, it is true, had previously defined proximate cause using the standard definition which of course says nothing with regard to aggravation. It is also correct, as appellee urges, that where a matter such as aggravation is not specifically pled, a party relying on it is not entitled to an affirmative submission. Flowever, where the court, without any objection from the opposing party (here ap-pellee) assumes to submit it affirmatively, there must be a correct submission, upon objection from the other party sufficiently pointing out in his objection the incorrect manner of submission.

In support of our holding that aggravation caused by subsequent innocent occurrence of July 14 could be considered if the jury considered such was an aggravation and was foreseeable, even though not pled, we cited the cases of Galveston, H. & S. A. R. Co. v. Coker, 135 S.W. 179, and Gulf, C. & S. F. R. Co. v. Brown, 40 S.W. 608. We did not mean that in the absence of pleading appellant would be entitled to affirmative submission, but only that he could recover the damages for aggravation as a proximate cause of the collision of July 6 even though aggravation was not specifically pled. Appellee urges that we were incorrect in stating there was in those cases no pleading of the previously existing injuries. We have carefully reread those cases and are of the view our construction was correct. In Galveston, H. & S. A. R. Co. v. Coker, the court had specifically instructed the jury authorizing a recovery for aggravation of previous injuries. The objection was that there was no pleading of aggravation. The court stated: “Plaintiff’s contention was that he had not been injured prior to the time of the wreck, and that all injuries from which he was suffering at the time of the trial were caused on account of the wreck.” The court then stated that the petition stated: * * * he received serious, painful, and permanent injuries. Said injuries consisting of the wounding, contusing, and mashing and cutting of his abdomen, and the walls, linings, and partitions thereof, and the tearing and bruising of the entrails and the protrusion thereof.”

In spite of plaintiff’s contention that all injuries were received in the wreck, the evidence showed he had a hernia which had existed some time before the wreck but it was made larger or aggravated, not caused, by the ivreck. In fact he denied he had the hernia before the wreck. Other evidence showed it was previously existing. The court did say, as stated by appellee, that “the charge of the court * * * was clearly authorized by both pleadings and evidence.” However, we are of the view that the court meant that though it was not specifically pled, damages for aggravation were recoverable if the proximate result of the wreck.

In the Gulf, C. & S. F. R. Co. v. Brown case, there was very much the same situation. There the plaintiff was contending prior to his injury he was in good health and that all his troubles were due to injuries received in the wreck. The court said it was proper to charge on aggravation despite plaintiff’s claim of previous good health because other evidence raised the issue of previously existing conditions that were aggravated. It is true, as stated by appellee, that at one point in the opinion the court stated it was right to call the attention of the jury to the items “alleged and proved” for which compensation would be allowed. However, the court was clearly referring, in our opinion, to matters other than aggravation.

Appellee’s motion for rehearing is overruled.


author: CHADICK, Chief Justice.

text:
    Robert H. JOHNIKEN, Appellant, v. Maxine A. JOHNIKEN, Appellees.
    No. 7566.
    Court of Civil Appeals of Texas. Texarkana
    March 17, 1964.

      Marcus F. Vascocu, Longview, for appellant.
    Eldred M. Smith, Longview, for appel-lees.
   CHADICK, Chief Justice.

The transcript’s chronological history of this lawsuit discloses the hiatus that renders this court without jurisdiction to entertain an appeal.

Judgment pursuant to jury findings on special issues was signed and entered October 14, 1963. A motion for new trial, filing date not shown, was overruled by signed order October 18, 1963; the order contained a notice of appeal by Maxine A. Johniken. Her appeal cost bond was filed November 15, 1963. Thereafter, on November 19, 1963, when 31 days had elapsed since the order overruling motion for new trial had been signed October 18, 1963, the trial judge rendered and signed a second judgment bearing the same style and number but not otherwise making any reference to the first judgment, materially changing custody and visitation arrangements pertaining to children set out in the first judgment; this last instrument recited notice of appeal therefrom by Robert H. Johniken. The same day, November 19, the trial judge signed an order granting Maxine A. Johni-ken’s request to dismiss her appeal from the order of October 18, 1963, overruling her motion for new trial. Also, that same day, November 19, Robert H. Johniken requested findings of fact and conclusions of law which the trial judge produced and filed on December 11, 1963. Robert H. Johniken. filed an appeal bond December 3, 1963, reciting his desire to appeal from the last judgment entered, that is, the judgment signed November 19, which made the change in the custody, etc., arrangements.

Rule 329b, Subsection 5 in part says: “Judgments shall become final after the expiration of thirty (30) days after the rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered, or motion for new trial overruled, the judgment cannot be set aside except by a bill of review for sufficient cause, filed within the time allowed by law. * * * ” There is no suggestion from any party that the trial court’s second judgment dated November 19, 1963, is validated by any special provision of the law giving the trial court authority to enter a judgment at that time. The motion for new trial filed by Maxine A. Johniken was referable to the original judgment and had been overruled more than 30 days before the second judgment was attempted; the purported second judgment is a nullity as the trial judge had lost jurisdiction over the case 30 days after overruling the motion for new trial. This court is without jurisdiction to review the merits of the void judgment. See also Rule 301, which has among its provisions a requirement that “[ojnly one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.” The appeal is dismissed.


author: DAVIS, Justice.

text:
    F. B. BRADFORD et al., Appellants, v. Jesse C. BRADFORD et al., Appellees.
    No. 7523.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 18, 1964.
    Rehearing Denied March 17, 1964.
    W. E. Stone, Stone & Stone, Jacksonville, M. M. Guinn, Rusk, for appellants-
    Norman, Rounsaville, Hassell & Spiers', Jacksonville, for appellees.
   DAVIS, Justice.

A will contest. George W. Bradford, the testator, was a bachelor Negro school teacher. He died January 14, 1960. On April 20, 1937, he executed a Will that was prepared by B. B. Perkins, an attorney, of Rusk, Texas. In the Will, he revoked all prior Wills. Besides the usual formalities he named each of his kith and kin as beneficiaries under the Will. He named Jesse C. Bradford, a brother, an Independent Executor. The Will was witnessed by B'.. B. Perkins and Leo W. Tosh.

George W. Bradford had to retire from' teaching school in 1948. At that time he was nearly 70 years of age. On May 14, 1955, he executed another Will that was written by Mrs. Morinne T. Perkins, an attorney, of Rusk, Texas, and a sister-in-law of B. B. Perkins. In this Will, he expressly revoked and annulled all prior wills. He left out several of his kith and kin; the appellants in this case. He named J. C. Bradford (one and the same person as Jesse C. Bradford) and Thomas H. Bradford as Independent Executors. The Will was witnessed by W. R. Whitten and M. B. Elliott. Immediately after the death of George W. Bradford, Jesse C. Bradford filed the 1937 Will for probate. It was admitted to probate on Feb. 10, 1960, and appointing Jesse C. Bradford as Independent Executor, who qualified as such.

. On September 14, 1961, J. C. Bradford, being one and the same person as Jesse C. Bradford, and Thomas H. Bradford filed the 1955 Will for probate. The only parties that were cited to appear at the probation of the 1955 Will was “all persons interested in the estate of George W. Bradford”. The citation was posted as in other probate proceedings. After the Will was admitted to probate, the contestants filed their exceptions and gave notice of appeal to the District Court of Cherokee County. In the District Court' the contestants filed certain •special exceptions to the original application of J. C. Bradford and Thomas H. Bradford to probate the 1955 Will on the theory that the order entered February 10, 1960, was res adjudicata, estoppel, that no appeal had been taken therefrom, no writ of certiorari was sought, and that the application was barred by the two year statute of limitation. They contended that the application should be dismissed. They further alleged that the contestants, as well as the devisees in the Will, were the sole and only heirs at law of George W. Bradford, deceased, which made them necessary and indispensable parties in the application to try to probate the 1955 Will. In their answer, they alleged that the 1955 Will was not a valid Will because of George’s mental incapacity and undue influence. The special exceptions were overruled and the case was tried before a jury. Only two special issues were submitted. They asked about George W. Bradford’s mental capacity, and whether or not the Will was procured through any undue influence exercised upon the testator. The jury answered the special issues that he did have testamentary capacity, and that no one exercised any undue influence. There is ample testimony in the record to support the jury’s finding. The contestants excepted and have perfected their appeal. They bring forward six points of error.

By their points 1, 2 and 3 they say: the court erred in not rendering judgment in favor of the contestants and in not holding that the probate of the alleged Will dated May 14, 1955, was barred by the statute of limitation of two years; the court erred in not sustaining the contestants’ plea of res adjudicata because the proof showed that the County Court of Cherokee County on February 10, 1960, entered a final order admitting the 1937 Will to probate, thereby finding that such Will had never been revoked, and that it was the last Will of the testator, and such Order, Decree and Judgment not having been appealed, and no writ of certiorari having been prosecuted, it was binding and conclusive upon all persons until it was so set aside; and, the contestants were not made parties to the application to probate the Will dated May 14, 1955, because they were necessary and proper parties.

The second Will could be legally probated without the necessity of making individual persons parties to the suit. The Last Will revoked all previous Wills, and since the Last Will was found within the four year period of time, and was timely offered for probate, the County Court had jurisdiction. The last Will was the Will of George W. Bradford, the testator. 57 Am.Jur. 621, Sec. 952; 57 Am.Jur. 629, Sec. 963; Schultz v. Schultz, 60 Am.Dec. 335; 10 Grattan 358; In re Winzenrith’s Will, 133 W.Va. 267, 55 S.E.2d 897; Vance v. Upson, 64 Tex. 266; Thomason v. Gwinn, Tex. Civ. App., 184 S.W.2d 542, er. dism.; Willbanks v. Montgomery, Tex.Civ.App., 189 S.W.2d 337, er. dism.; In re Estate of Elliott, 22 Wash.2d 334, 156 P.2d 427, 157 A.L.R. 1335; St. Mary’s Orphan Asylum of Texas et al. v. Masterson et al., 57 Tex.Civ.App. 646, 122 S.W. 587; Williams v. White, Tex.Civ.App., 105 S.W.2d 1105, NWH; Heironimus et al. v. Tate et al., Tex.Civ.App., 355 S.W.2d 76, W/R., N.R.E.; Laborde et al. v. First State Bank & Trust Co. of Rio Grande City, Tex.Civ.App., 101 S.W.2d 389, W/R; Phelps et al. v. Ashton, 30 Tex. 344; 44 T.J. 642, Sec. 99; 9 Ten Year Supp. p. 744, Sec. 99, and 9 Ten Year Supp. Pocket Part 356, Sec. 99; and 1964 Supp. 164, Sec. 99. Sec. 83(b), Texas Probate Code, V.A.T.S.

Since the Last Will and Testament of the testator is entitled to be admitted to probate, there can be no necessary and indispensable parties to the probate proceedings. 95 C.J.S. Wills § 362, p. 218. It seems that Sec. 83(b), Probate Code had previously been given such effect. In the cases of Vance v. Upson, supra, and Willbanks v. Montgomery, supra, it was held that a judg■ment admitting the later instrument to probate automatically sets aside the previous order by which the former instrument had been admitted to probate, where the later instrument revoked all former Wills. Such is true as to Codicils where the Codicil revokes a part of the Will and/or makes additional bequests.

Prior to the present Probate Code . an independent administration, according to the law, considered the estate as closed after one year. Jones v. Jimmerson, Tex. Civ.App., 302 S.W.2d 161. Now, an independent administration is not closed at the expiration of one year, nor until the independent executor, or someone interested in the estate, filed the necessary pleadings and asks the county court to declare the administration closed. Secs. 151 and 152, Probate Code. Under Sec. 83(c) of the Probate Code where an administration is pending against an estate and a Will is found and admitted to probate, the administration is revoked, but all acts done by the first administrator prior to the qualification of the Executor, or of the Administrator with the Will annexed, shall be as valid as if no such Will had ever been discovered. There was no proof in this record of the distribution of any of the estate. If such is true, it may result in further litigation. There is an article in Vernon’s Revised Civil Statutes, Vol. 9a, beginning on page 223, entitled “History and Commentary, Title 54--, Estates of Decedents” by the Hon. Harvey M. Richey of the Waco Bar. Beginning on page 235 under “Independent Administration” is pointed out that Texas has a more liberal statute than any other jurisdiction. If such is the case, the parties who have received under the prior administration may become necessary parties to a lawsuit to deprive them of that which they have heretofore received. 32 T.J. 13, Sec. 9; 44 T.J.2d 128, Sec. 3.

It does seem that the question of estop-pel is applicable to the case at bar. 107 A.L.R. 259.

The points of error are overruled.

By their points 4, 5 and 6 appellants say the court erred in excluding certain evidence. They did not bring these errors forward in their motion for a new trial. They take the position that this can be done under Rule 324 Vernon’s Annotated Texas Rules of Civil Procedure, amended and became effective Sept. 1, 1962. Such points must be raised in the trial court by a motion for new trial. See Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; The State of California Department of Mental Hygiene v. Bank of the Southwest National Ass’n et al. (Tex.Sup.Ct.) 354 S.W.2d 576; Stacy et al. v. Bridge City I.S.D., (Ct.Civ.App.) 357 S.W.2d 618, N.W.H.; Towne Industrial Equipment Co. Inc. v. Marmosaic, Inc., (Ct.Civ.App.) 358 S.W.2d 755, N.W.H.; 3 T.J.2d 460, Sec. 184; and 3 T.J.2d 461, Sec. 186. Points of error can be raised by a motion for judgment non ob-stante veredicto. The points have been waived and are overruled.

The judgment of- the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    C. C. PITTS, Appellant, v. A. G. BARCLAY, Appellee.
    No. 16504.
    Court of Civil Appeals of Texas. Fort Worth.
    March 20, 1964.
    Rehearing Denied April 24, 1964.
    Jones, Fillmore, Robinson & Lambert and Larry Lambert, Wichita Falls, for appellant.
    Jack Fields, Port Lavaca, Short & Smith- and Donald E. Short, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

From a judgment for plaintiff A. G. Barclay in a suit for damages resulting from-an automobile-truck collision, the defendant C. C. Pitts appealed.

Judgment reversed and remanded.

The collision giving rise to the suit occurred on U. S. Highway No. 62 in the-State of Oklahoma, approximately two (2) miles south of the town of Apache. The-road in the vicinity of the collision is asphalt pavement, approximately 20-22 feet in width, with shoulders of only about 5 feet to either side. The highway runs in-a general direction from south to north. About 150 feet (or 50 yards) south of the-point of the collision is the crest of a hill. As one drives from south to north there is a sign at the crest of the hill informing-motorists that they are approaching a dangerous curve to the right and that said curve lies “800 feet ahead”. This means, of course, that the point of the collision was-approximately 650 feet south of the point where a northbound motorist would encounter the curve and on the slope between the crest of the hill and the beginning- of the curve.

The collision occurred in the nighttime and when it was raining, the pavement of the roadway being wet and slick.

The defendant was in the business of hauling sand and gravel and crushed rock. Pursuant to this business he had several trucks with semitrailers attached, and employed several drivers to operate the same. On the night of the collision two of these drivers, each with a truck and semitrailer, delivered sand to a consignee in Lawton, Oklahoma, after which they drove a few miles north to a rock crushing plant off the highway. Both trailers were loaded with crushed rock. The drivers of the trucks, hauling the loaded crushed rock, drove onto Highway No. 62 and proceeded toward Apache. They were driving in a northerly direction.

The first of the two trucks reached the curve aforementioned, and either while negotiating it or in the process of entering it his truck went out of control so that it “jackknifed” and came to a stop partly on the paved portion of the highway and partly on the shoulder or in the ditch at the right-hand side thereof. The second truck was some distance behind the first when this occurred. Its driver became aware of the occurrence after passing the crest of the hill when the headlights of the truck “settled down” upon the roadway ahead as it started on the downgrade toward the curve. It was at this time that the second truck went out of control and “jackknifed” on the roadway north of the crest of the hill, but south of the curve. Repeating: this second truck and semitrailer came to a stop on the downslope to the north about 150 feet (or 50 yards) north of the crest of the hill, and still a considerable distance (approximately 650 feet) from the point where the first truck and semitrailer was stopped (in “jackknifed” position) on the curve.

The driver of the second of the two trucks was aware of the fact that the automobile of the plaintiff was traveling toward the north on the same highway and was behind his trailer. When the second truck and semitrailer “jackknifed” and came to a stop the semitrailer was across and completely obstructing the right-hand side (east side) of the paved portion of the highway. The front thereof was stopped pointing toward the east and rear end of the trailer was two or three feet across and upon the west side of the pavement. The truck-tractor portion of the vehicle was to the north of the semitrailer, with the front portion, and the burning headlights, toward the west.

As the driver of the second truck prepared to get out of the truck cab immediately after his vehicle came to a stop, but before he got out, the automobile of the plaintiff had struck into the right side of the semitrailer and into the underpart of the same. The left front of plaintiff’s automobile was damaged extensively, as was the left front portion of the top, and the windshield post supporting the same.

As applied to plaintiff, what had occurred was that he “topped” the crest of the hill and started down the slope to the north, whereupon his headlights disclosed the presence of the defendant’s second truck obstructing the pavement, or at least the right-hand or east one-half thereof, whereupon he applied his brakes and skidded (on the wet pavement) into the side of the semitrailer. By its answers to special issues, the jury acquitted the plaintiff of any act or omission asserted by the defendant as contributory negligence. The jury also found that the collision and resulting injuries and damages sustained by the plaintiff were not the result of an unavoidable accident.

In the court’s charge to the jury the term “proper control” was defined as “such control that a person of ordinary prudence would have kept under the same or similar circumstances”. There was no complaint of the term as so defined. By answer to Special Issue No. 7 the j'ury found that the driver of the second of the defendant’s trucks “failed to keep the truck under proper control at the time and on the occasion in question”. By an appended issue the jury found such failure to Have been a proximate cause of the collision therewith involving the plaintiff.

By negative answers returned to special issues the jury refused to find the defendant’s driver negligent in respect to excessive speed or in driving a truck with defective brakes. Pleaded and raised by the evidence, hut not submitted as special issues, were questions relative to whether the driver of the second truck of the defendant was negligent in respect to the manner of his application of brakes on thé truck and semitrailer,- and in respect to his failure to properly steer the truck. There was no complaint because of the absence of such issues' from the charge. Not pleaded (except to be implied as an element of defendant’s driver’s lack of control) was the question of whether the driver of the second tfuck failed to keep a proper'lookout. Naturally there was no submission of any special issue thereon. We are of the opinion that under the circumstances of the case, tind as' applied to the question of the lack of control of his vehicle by the driver of the second truck, elements thereof included (but not' submitted in special issues) were issues upon the matter of his lookout, his failure to 'make proper application of brakes,"and his failure to properly steer the truck. It would therefore be proper to say'that the issues submitted upon the matter-of his lack of-control (and the proximate ' cause ' issue appended) would have been''arid was answered by the-jury in a consideration- of these elements. It would not be proper to say that the jury, in arriving at its answers, considered the matter of speed and whether the brakes were defective, for., finding? against the plaintiff’s contentions .thereupon. appear elsewhere in thp charge'. .. ■ . .

In Hodges on Special Issue Submission ■in Texas, p, 10S, “Size and Numbdrvof Is* sues”, § 39, “Particular Problems in Negligence Cases”, sub., “Proper Control”, it is said: “ * * * the inquiry as to control is general and involves several different aspects of the operation of an automobile. It involves speed, use of brakes, use of the correct highway lane, and turns made, each of which is ordinarily the proper subject of a separate issue.

“Certainly, if issues are submitted asking about such specific phases of the driver’s conduct, the general issue as to control would be a duplication and should not be submitted. Conversely, if the proper control issue is submitted, the issues inquiring about specific acts or omissions would be duplications and should not be submitted. Apparently the question of the 'propriety of submitting an issue on proper control in any event has not been presented directly for appellate decision by objections pointing out that it is a broad and general submission covering several specific acts or omissions. The opinion may be expressed that such a submission, if appropriate objection is made, should not be made.”

Cases listed under footnotes to these two cited paragraphs include: Triangle Cab Co. v. Taylor, 1946, 144 Tex. 568, 192 S.W.2d 143; Blaugrund v. Gish, 1944, 142 Tex. 379, 179 S.W.2d 266; Schuhmacher Co. v. Holcomb, 1944, 142 Tex. 332, 177 S.W.2d 951; Northeast Texas Motor Lines v. Hodges, 1942, 138 Tex. 280, 158 S.W.2d 487; and Fullingim v. Dunaway, 1954 (Tex.Civ.App., Beaumont), 267 S.W.2d 483. See also: Cunningham v. Suggs, 1960 (Tex.Civ.App., Eastland), 340 S.W.2d 369, writ ref., n. r. e.; Brown v. Vigeon, 1963 (Tex.Civ.App., Beaumont), 367 S.W.2d 727, writ ref., n. r. e.

" The propriety of submitting an issue on proper control “in any event” in a case submitted on . special issues is now presented directly for appellate decision for im.this instance the defendant objected 'to the charge on lacki of 'control bn the ground that “such issue is.a general issue, amounts to', a .generáli charge 'and- combines (several elements into one.” •

In the Supreme Court opinion m Milton Kainer v. James W. Walker, Texas Supreme Court Journal of February 15, 1964, Vol. 7, No. 18, p. 226, it was held that a defendant is entitled to have the plaintiff’s case submitted on special issues and the jury’s determination of each controverted and ultimate issue of fact considered and determined separately, — and that even though the defendant has not excepted to pleadings of the plaintiff relying on a general allegation of his negligence the defendant has established and preserved his right to a special issue form of submission by an objection to the charge which complains of the general or global submission (as by a general charge), — and it becomes the plaintiff’s obligation in such an instance to obtain the submission of and favorable findings to (enough) special issues, which separately submit each controverted and ultimate issue of fact, to support judgment in his behalf, — and that by reason of the defendant’s proper objection thereto the plaintiff cannot have sufficient support for a judgment in his behalf predicated solely upon favorable findings returned to a general issue (s) upon the defendant’s negligence.

We believe the following to constitute a correct statement of procedural law: Though pleadings of either general primary negligence or general contributory negligence exist unimpaired in the pleadings at time for the submission of the court’s charge to the jury, the party so pleading shall not be entitled to prevail upon a mere favorable answer (s) by the jury on a general issue (s) relative to his adversary’s, negligence if that party should properly object to that character of submission(s), and in a compliance with proper procedure the party is bound to prevail, if at all, upon answers returned to special issues.

Since an issue which submits the question of whether the driver of a motor, vehicle failed to keep the same under “prop- ■ er control”, under a definition of the term' as “such control that a person of ordinary prudence would have kept under the same or similar circumstances”, amounts to a general charge and is a global submission of negligence, a favorable finding thereto returned (and to the appended issue on proximate cause) cannot alone, in and of itself, support a plaintiff’s judgment in a case where the defendant has objected to the issue on that ground. Such is the exact situation in the instant case. The judgment based upon the verdict was therefore erroneous.

What we have set out hereinabove governs our disposition of the case. We have considered the defendant’s points of error advancing propositions which if sustained would require us to render a judgment in his favor. They are severally overruled. We have also considered defendant’s points of error, other than those embraced by our discussion, which if sustained would require a remand of the case for another trial. These we overrule as either moot or without merit.

Judgment is reversed and the cause is remanded.


author: HUGHES, Justice.

text:
    Charles KRENEK, Appellant, v. EPPS SUPER MARKET NO. 2, INC., Appellee.
    No. 11159.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1964.

      Thompson, Hippard & Gibson, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, Larry W. Starr, Houston, for appellee.
   HUGHES, Justice.

. On September 19, 1961, appellant, Charles Krenek,- filed suit against Epps Super Market, Inc., “with a place of business and an agent for service at 1356 Federal Road in Houston, Harris County, Texas,” alleging that “on or about January 12, 1961, during the afternoon plaintiff went to defendant’s super market No. 2 and while in the store, slipped on the floor” and sustained personal injuries.

On October 19, 1961, Epps Super Market, Inc., answered by filing exceptions, a general denial, and by pleading contributory negligence, that the condition of the floor was open and obvious and that the doctrine of volenti non fit injuria was applicable.

On January 24, 1963, Epps Super Market, Inc., filed motion for summary judgment, one of the grounds therefor being that “Neither this defendant nor any of its employees or agents own or occupy the premises upon which plaintiff claims to have fallen, the same being owned and occupied by a corporation existing separately and distinctly from this defendant.”

Attached to this motion was a portion of the deposition of Mr. Charles Edward Krenek showing that he was injured in “Epps Super Market.” Also attached to the motion was an affidavit of Mr. James C. Epps, Jr., which recited that he was President of Epps Super Market, Inc., whose place of business was located at 1356 Federal Road in Houston; that such Corporation did not own any interest in or have anything to do with the operation of the business located at 8427 East Houston Road, known as Epps Super Market No. 2, Inc., which business was a corporation separate and distinct from the Corporation of which he was President. The affidavit further stated. “It has been brought to my attention that Mr. Krenek claims to have slipped at Epps Super Market No. 2, Inc., located at 8427 East Houston Road. As previously stated, that is now and was on January 12, 1961, and at all times thereafter, a different corporation.” This motion for summary judgment was granted February 13, 1963, decreeing that Epps Super Market, Inc., go hence with its costs without day but providing that “Plaintiff is granted leave to amend his petition.”

No appeal was perfected from the above summary judgment.

On February 19, 1963, appellant amended his pleading and sued only Epps Super Market No. 2, Inc., a corporation located at 8427 East Houston Road in Houston alleging the same cause of action alleged in his suit against Epps Super Market, Inc.

Appellee filed a motion for summary judgment one of the grounds being that appellant’s suit was barred by the two year statute of limitations. Art. 5526, Vernon’s Ann.Civ.St. This motion was granted and judgment was rendered that appellant take nothing by his suit and that ap-pellee go hence without day with its costs, from which judgment this appeal was perfected.

Unless the amendment by which appellee was brought into this suit is but a continuation of the original suit and not the commencement of a new suit, then it clearly appears that appellant’s suit is barred by the two year statute of limitations. The contention of appellant is that he did not originally sue the wrong party, that he sued the right party by the wrong name. He also contends that appellee is estopped to assume the position that it was first sued when the Amended Petition was filed and to claim the benefits of such position.

The record in this case discloses:

The officers of the two corporations, Epps Super Market, Inc. and Epps Super Market No. 2 are, and have always been, the same. Before the amendment bringing in the No. 2 Corporation, appellant took the deposition of Charles D. McCullen, manager of Epps Super Market No. 2, Inc., from which we quote:

“Q Where do you work, Mr. Mc-Cullen ?
“A Epps Super Market.
“Q Where is that located?
“A 8427 East Houston Road.
“Q What is your title or position there ?
“A Manager.
“Q Do they have other stores of the same name?
“A Yes, sir.
“Q How many stores do they have?
“A Three.”

This deposition was taken prior to the expiration of two years from the date appellant was injured.

The return on the citation issued to Epps Super Market, Inc. shows service on September 25, 1961, by delivery to “G. E. Hammond, in person, Store Mgr. agent of the said” Corporation a true copy etc.

The return on the citation issued to Epps Super Market No. 2, Inc. shows service on February 20, 1962, by delivery to “Thomas A. Kysh (Asst. Mgr), in person, of” said Corporation a true copy etc.

The deposition of appellant was taken on June 19, 1962, when the defendant was Epps Super Market, Inc. We quote all of his testimony having any possible relevance on the points before us:

“Q Now, Krenek, I am representing Epps Supermarket, I am the attorney for them, they are the people you are suing here. Do you understand that ?
“A Yes, sir.
* * * * * *
“Q Now, when was this accident?
“A The 12th of January.
“Q Last year ?
“A Yes, sir.
“Q Where?
“A At Epps Supermarket.
******
“Q How long would you say you had been in the rain before you got to the store?
“A You mean inside the car?
"Q Yes, how long had it been raining, in other words, to your knowledge, there?
“A From the time I hit Jensen Drive until I got over to East Houston Road.
* :}: * * *
"A Yes, sir, so you can get in the inside there. And I noticed Chuck coming from the office, and when I met him I told him that I had slipped down on some water.
“Q Is that Chuck McCullen?
“A I don’t know his last name, Chuck is all I have ever known.
“Q Was he the same man that you saw up here just a few minutes ago?
“A Yes, sir. He was the assistant manager at the store.”

It is our opinion that appellant having first sued an existing corporation cannot dismiss as to such corporation and sue another separate and distinct corporation without, as to such latter corporation, be deemed as having instituted a new suit and subjecting himself to all defenses, including limitations, available to such corporation. The law on this point is so well settled that we cite, without discussion, sustaining authorities, towit:

Nail v. Wichita Falls & Southern Railroad Co., 294 S.W.2d 431, Fort Worth Civil Appeals, Cosand v. Gray Wolfe Co., 262 S.W.2d 547, Galv.Civ.App., Gillette Motor Transport Co. v. Whitfield, 160 S.W.2d 290, Fort Worth Civil Appeals, Wichita Falls and Southern Railway Co. v. Foreman, 109 S.W.2d 549, Eastland Civil Appeals.

As previously shown Epps Super Market, Inc'., was sued and service issuing out of such suit was obtained upon G. E. Hammond, its store manager. There is no showing that G. E. Hammond had any connection with Epps Super Market No. 2, Inc. In response to such service Epps Super Market, Inc., appeared and answered. Thus a legal entity was sued, served and appeared. There was no misnomer. There was a mistake in identity. The wrong Corporation was sued. Unless Epps Super Market No. 2, Inc., is responsible for such mistake to the extent that it is estopped to rely thereon, then the summary judgment for it was correct since appellant’s cause of action 'is barred by Art. 5526, supra.

The point as to estoppel is based, as we understand it, primarily on the fact that Mr. Charles D. McCullen, Manager of the store at 8427 East Houston where appellant was injured, testified by deposition when the defendant was Epps Super Market, Inc. We have set forth above all of the testimony of Mr. McCullen which appears in the record. Mr. McCullen testified that he worked for and was manager of “Epps Super Market” located at 8427 East Houston Road.

This testimony is not shown to be untrue. In fact, the record is undisputed that it is true. Mr. McCullen was not asked if Epps Super Market was a Corporation and if so what its Corporate name was.

Mr. McCullen was also asked if there were other stores of the same name and he replied that there were three. There is nothing in the record to disprove this statement.

Appellant also mentions in this regard that the officers of the two Epps Corporations were the same and that the same legal counsel represented them. These facts are completely lacking in probative value on the question of estoppel. They do not tend to prove any fact -upon which appellant could base the estoppel he claims. In Wichita Falls and Southern Ry. Co. v. Foreman, supra, the Court said, “The fact that the two corporations had the same president and were represented by the same attorneys did not render one liable for any conduct of such president and/or attorneys while acting alone for the other.”

The judgment of the Trial Court is affirmed.

Affirmed.