author: WALKER, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Petitioner, v. Mrs. Ruth BOTTOM, Respondent.
    No. A-9180.
    Supreme Court of Texas.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.

      Crawford Martin, Hillsboro, Touchstone, Bernays & Johnston, Dallas, for petitioner.
    Jack Sims, Hillsboro, Stark, Carroll & Davey, Gainsville, for respondent.
   WALKER, Justice.

This suit for death benefits under the Workmen’s Compensation Act was brought by the widow of Wilbur F. Bottom, deceased, an employee of Safety Convoy Company who lost his life in a highway accident. In response to the one special issue submitted, the jury found that Bottom’s fatal injuries were sustained in the course of his employment. Judgment on the verdict in plaintiff’s favor was affirmed by the Court of Civil Appeals with one justice dissenting on rehearing. 358 S.W.2d 765. In our opinion there is no evidence to support the finding of the jury.

There is little controversy as to the evi-dentiary facts which were established at the trial. Deceased was employed as a truck driver by Safety Convoy Company, whose place of business was in Dallas. He and his wife resided in Hillsboro. The employer was engaged in the business of delivering new automobiles from the Ford assembly plant in Dallas to various points in Texas. Its drivers operated on what was known as a “show-up-system.” Postings of trips were made at intervals during the day, and the loads were chosen by the drivers present in the order of their seniority. There were occasions when the junior drivers had no loads and thus no work. A driver was free to work or not work as he saw fit even if there were loads to be taken. He could sign out at any time on the “unavailable list” and be away for as long as three days for any reason he considered proper. The drivers were on call, however, and could be called at any time. The company would “get on” a driver who signed the list to be available at a certain time and then failed to show up. Drivers were paid on a loaded mile basis with certain allowances for split loads, etc. They received no additional compensation for attending postings, waiting on the lot, repair time or return trips.

A number of drivers owned trucks which were leased to the company. There is no evidence indicating that this was required as a condition to their employment. Some drivers operated trucks owned by the company and received the same pay as an owner-operator did for his services as a driver. A driver who owned his vehicle executed a written agreement leasing the same to the company. The contract provided, among other things, that only freight solicited and controlled by the company would be transported in the leased vehicle, that the company would have full possession and control of the vehicle during the term of the lease, that the vehicle would be operated only by employees of the company, and that its operation would be under the direction and complete supervision of the company. Under the terms of the contract, the lessor was required to maintain the vehicle in first-class operating condition and to pay all operating costs, including gasoline, oil, tires and repairs. As compensation for the use of his vehicle, he received 65% of the gross freight billings which it hauled less driver’s pay. The deduction for driver’s pay was the same whether the vehicle was operated by the owner or by another employee.

If a lessor did not wish to work and his vehicle was needed, the company had the right to and would put another driver on the truck. The company required that leased trucks be properly maintained and would have cancelled the lease if the owner failed to perform his obligations in this respect. Facilities for maintaining and servicing the trucks were provided by the company, which charged the owner for services performed on a leased vehicle, but the owner was free to have the work done anywhere he desired. The owners preferred to and usually did have their trucks repaired elsewhere by mechanics whom they selected. When the owners of leased trucks had uncoupled their tractor units from the company trailers and were off duty, it was customary for many of them to drive their trucks to and from home. An owner was at liberty to use his vehicle for personal errands as he saw fit while he was off duty.

Bottom was employed by the company as a driver for a number of years. Several months before his death he purchased a new Ford tractor unit and executed a written contract leasing the same to his employer. The lease agreement is on the company’s usual form and contains the provisions mentioned above. The stipulated compensation for the use of the truck was paid to Bottom semi-monthly, and he received his driver’s pay on two other dates each month.

He was killed when his tractor unit overturned while he was driving from Hillsboro to Dallas on Sunday morning, October 11, 1959. The last work he did for the company was to take a load to Forney, near Dallas, the previous morning. He apparently returned to Dallas and signed the “available list” at 3:45 p. m. Saturday afternoon, but later scratched his name off. He also signed the “unavailable list” and stated that he would be available at 8:00 p. m. on October 10th. At 5:20 p. m. he again signed the “unavailable list” and on this occasion indicated that he was going home and would be available for work at 4:00 p. m. on October 11th.

Bottom drove to Hillsboro Saturday night in his bobtailed truck, i. e. without the company trailer attached. Sunday morning he declined to go to church with his wife, saying that the company needed him badly and that he would try to get back to Dallas for a 1:00 p. m. posting. While in Hillsboro he had the truck greased, its brakes adjusted, and a spark plug cleaned. The total charge for this service was $5.80. He left home for Dallas at about 10:30 a. m., and the accident occurred some thirty minutes later at a point several miles north of Hillsboro.

During the period of his employment by Safety Convoy Company before he acquired his own truck, Bottom never drove an empty company truck from Dallas to Hills-boro. He did try to get loads going through Hillsboro, and occasionally stopped at home when passing through with a load or after making a delivery. On other occasions he went home by bus or rode with another driver, or his wife went to Dallas for him. After purchasing his truck, Bottom used this vehicle whenever he wanted to go home. The truck was bought in Hillsboro, and he took it there for all repairs. He had work done on it nearly every time he went home. Trucks owned by the company were always serviced in Dallas unless they broke down on the road.

Section 1 of Article 8309, Vernon’s Ann.Tex.Civ.Stat., provides that the term “injury sustained in the course of employment” shall include “all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” The requirements of this statute are not satisfied by proof that injury occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. He must also show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. See Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Texas Indemnity Ins. Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67; Aetna Life Ins. Co. v. Burnett, Tex.Com.App., 283 S.W. 783.

As a general rule an injury received while using the public streets and highways in going to or returning from the place of employment is not compensable because not incurred in the course of employment as required by the statute. United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370. The rationale of this rule is that in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer. See Smith v. Texas Employers’ Ins. Ass’n, supra; Bozant v. Federal Underwriters Exchange, Tex.Civ.App., 159 S.W.2d 973 (wr. ref. W.M.).

There are exceptions to the general rule. Injuries received while going to or returning from work have been held to be compensáble where the means of transportation was furnished, or the employee was reimbursed for his travel expenses, by the employer as a part of the contract of employment, and where the employee had undertaken a special mission at the direction of the employer or performed a service in furtherance of the employee’s business with the express or implied approval of the employer. We have not said or held, however, that an employee is in the course of his employment whenever he rides in a vehicle owned, or is otherwise furnished transportation, by the employer. It is well settled that the mere gratuitous furnishing of transportation by the employer as an accommodation to the employee and not as an integral part of the contract of employment does not bring the employee who is 'injured while traveling on the streets and highways within the protection of the Workmen’s Compensation Act. See American General Ins. Co. v. Coleman, supra, and authorities there cited.

In 1957 the Legislature amended Article 8309 by adding Section lb, which is quoted in the margin. The new section does not provide that an employee shall be deemed or may be regarded as being in the course of his employment when any one of the specified conditions is satisfied. We also note that Section 1 was amended in 1959, but the above quoted definition of “injury sustained in the course of employment” was not changed. When the provisions of Section lb are read in connection with those of Section 1 and our decisions construing and applying the same, we think the Legislature intended thereby to circumscribe the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition found in Section 1. The intention to authorize compensation for an injury received while the employee is permitted, solely for his own accommodation and not for any purpose connected with the employment, to ride in a vehicle owned and controlled by the employer, would have been expressed in clearer terms if that had been the legislative purpose. It is still necessary, therefore, for the claimant to show that the injury is of a kind and character that had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer.

Bottom was employed by Safety Convoy Company as a driver, and he had also leased his truck to the company. There is no evidence indicating that his enjoyment of either relationship was in any way dependent upon the other. It was his duty as lessor to keep the leased vehicle in proper condition, but the employment contract did not contemplate or require that he subject himself to road hazards for the purpose of maintaining trucks owned or leased by the company. Taking the truck to Hillsboro or elsewhere to have it serviced was not part of his job as driver, and there is no evidence that he was on a special mission for his employer.

After signing out on Saturday evening, he was free to go wherever he desired and do whatever he pleased. While the employer had the right to control the truck, that circumstance alone does not place Bottom in the course of his employment at the time of the accident. The company might have compelled him to leave the truck in Dallas for someone else to drive, but it could not have required and did not request him to take it to Hillsboro for service and repair. Instead of exercising its full rights under the lease contract, the company relinquished actual control of the vehicle to Bottom and permitted him to use the same for his personal purposes. This, was done as a favor to the truck owner and was not an incident of his employment as driver. If we assume that the evidence will support the conclusion that he went to Hillsboro primarily to have the truck greased rather than to visit his wife, the trip was not made for any purpose related to his employment. He had driven home in his own truck at his own expense to serve his own purposes, and at the time of the accident was returning to his place of employment where he expected to resume his duties. His fatal injuries did not have to do with and originate in the business of the employer as required by Article 8309. They resulted instead from hazards which he as a member of the traveling public encountered in making the trip to see his wife and to have the truck serviced in accordance with the lease agreement. The case is governed by the general rule mentioned above, and the trial court should have sustained petitioner’s motion for judgment non obstante veredicto.

The judgments of the courts below are reversed, and judgment is here rendered that respondent take nothing.

      . “Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    James Wesley ISENHOWER et al., Petitioners, v. G. D. BELL, Respondent.
    No. A-9068.
    Supreme Court of Texas.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.

      Runge, Marschall & Hall, San Angelo, for petitioners.
    Davee & Davee, Brady, for respondent.
   GREENHILL, Justice.

The judgment heretofore entered is set aside; and the opinion heretofore rendered is withdrawn, and the following is substituted therefor.

G. D. Bell and W. L. Jackson, as partners, owned the Bell Feed Store in Brady, Texas. Bell desired to sell, and he Ultimately entered into a written agreement to convey his interest to W. L. Jackson and J. W. Isenhower. The parties soon fell into disagreement, among other things, as to how much Bell and the store owed and who was obligated to pay the outstanding debts. This suit was brought by Jackson and Isen-hower against Bell for damages for fraud and for rescission. In particular, Jackson and Isenhower alleged that Bell had wrongfully represented that the debts of the store did not exceed $8,500. After a trial by jury, judgment was entered against Bell, and for Jackson and Isenhower for damages. That judgment was reversed and the cause was remanded for a new trial by the Austin Court of Civil Appeals, 356 S.W.2d 485. Jackson and Isenhower appliecl to this Court for writ of error. Bell filed no application. The case has been handled on appeal in an unorthodox fashion, and our disposition of the case is limited by the points of error which have been preserved and presented.

The only point of error which Jackson and Isenhower have in this Court is that “The Court of Civil Appeals erred in reversing the judgment of the district court * * * because such action is not founded on fundamental error or on any assigned error.”

We have examined the points of error of Bell in the Court of Civil Appeals and agree that the Court of Civil Appeals, in its opinion, did not reverse the case on any assigned error. It did, however, reverse the case and remand it for a new trial. Under those circumstances, this Court will review the points of error in Bell’s brief in the Court of Civil Appeals to see if there was error assigned which would support the judgment of the Court of Civil Appeals. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383 (1952) ; Calvert, “Supreme Court Review,” 21 Texas Bar Journal 75 at 112.

As stated, Bell did not bring an application for writ of error to this Court complaining of the failure of the Court of Civil Appeals to sustain his points which would require a reversal and rendition of the judgment.

Bell had six points in the Court of Civil Appeals. His points two and three, assuming them to be properly preserved and presented,, did present points which, if sustained, would require a remand of the cause. They will be discussed below. Bell’s points one, four, five, and six, if sustained, would have required a rendition of the judgment. They deal with the failure to sustain special exceptions, which would result in rendition of the case if sustained, failure to grant an instructed verdict, failure to grant Bell’s motion for judgment notwithstanding the verdict of the jury, and similar matters. We do not regard these points as being before us.

Bell’s third point deals with special issues requested by Bell and refused by the trial court. This point has 10 parts or sub-points, lettered (a) through (j), complaining of the trial court’s failure to submit his requested issues 1 through 10. The issues which were refused are not set out. The first subpoint reads: “The trial court erred in overruling and not submitting to the jury appellant’s special requested charge No. 1, same being amply raised by the evidence." The other subpoints are the same except the number of the requested special issue is changed.

Rule 418, Texas Rules of Civil Procedure, deals with the requirements of briefs in the Court of Civil Appeals. Section (b) of Rule 418, regarding points of error, says, “Such points will be sufficient if they direct the attention of the court to the error relied upon * * ⅞.” Section (c), which deals mainly with argument, provides in part, “If complaint is made of any charge given or refused, such charge shall be set out in full.” This was not done either in the point of error or in the argument.

The substance of the requested special issue No. 6 is set out in the argument under that point; and we shall here assume that the point is therefore preserved. Assuming that the point is preserved, it does not present error. Subpoint (f) of Point 3 complains of the error of the trial court in refusing to submit Bell’s special requested issue No. 6. Examining the transcript, we find the requested issue reads, “Do you find * * * that the plaintiff Isenhower knew or should have known by use of reasonable diligence, the amount of the indebtedness owed by Bell Feed Store at the time of purchase.”

As pertinent here, this was a suit for fraud. It was alleged, and the jury found, that Bell represented that the debts of the store did not exceed $8,500; that the representation was of a material fact; that Isenhower relied thereon; and that it was untrue. Where one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based upon a plea that the party defrauded might have discovered the truth by the exercise of proper care. Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888) ; Moore v. Beakley (Tex.Com.App.1919), 215 S.W.2d 957. An affirmative answer to the requested special issue based upon what Isenhower should have known would not, therefore, have constituted a defense to the alleged fraud. The trial court did not err in declining to submit the requested issue.

Bell’s requested issue No. 7 would have inquired whether Isenhower was negligent in not ascertaining the amount of indebtedness owed by the feed store. The trial court properly refused to submit this issue for the same reason.

Bell’s requested issue No. 1 would have inquired whether Bell guaranteed that the indebtedness of the store did not exceed $8,500. Special issue No. 3 which was given by the court inquired whether Bell represented to Isenhower that the debts owed by the store did not exceed $8,500. The issue given, therefore, submitted the substance of Bell’s requested issue No. 1 and was no more onerous on him. The court did not err in refusing to submit the issue.

Bell’s requested issues 2 and 3 (inquiring whether such representation induced Bell to enter into the agreement) were conditioned upon an affirmative answer to his requested issue No. 1. The court therefore did not err in refusing to submit those issues.

Subpoint (d) of Bell’s third point of error says that the trial court erred in refusing to submit his requested issue No. 4. The issue is not set out. The entire argument under the point is:

“(d) S.F. P. 132, P. 139, P. 141, and P. 143.”

'One of the main purposes of Rule 418 is to require counsel to put before the Court of Civil Appeals in the brief at least the substance of'the point relied upon for reversal and to relieve the appellate court from having to piece together a point for the appellant from an examination of the transcript and the statement of facts. A bare reference to a requested issue No. 4 and a reference to four pages in the statement of facts, without stating the substance of any of the material referred to, is not enough. The point was, therefore, not preserved. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The same is true of Bell’s requested special issues 5, 8, 9 and 10.

Bell’s second point of error dealt with the admissibility of evidence. On October 2, 1958, Bell and Isenhower entered into a preliminary agreement whereby Isenhower would purchase Bell’s interest in the store for $12,000 and the assumption of accounts and notes owed by Bell. The agreement, which is set out in full in 356 S.W.2d at pages 486 and 487, states that the parties will execute, by October 15, 1958, a detailed contract consummating the sale; and that if no such contract is executed by that time, the preliminary contract would be of no effect. The final paragraph reads, “It is agreed that the debts of Bell Feed Store including open accounts and notes, will not exceed the amount of $8,500.00.”

On October 4, 1958, a contract was entered into whereby Bell sold his interest to Isenhower’ and Jackson. This instrument, which is set out in full in 356 S.W.2d at pp. 487 and 488, says that “[w]hereas on October 2, 1958, the said G. D. Bell and James Wesley Isenhower entered into a preliminary sales agreement * * * ; now, therefore to terminate said partnership and consummate said sale, the parties agree as follows * * Then follow the terms of the sale. This contract does not have an agreement, contained in the preliminary-contract of October 2, that the debts will not exceed $8,500.

Upon the trial of the case, Bell’s counsel objected to the introduction of the agreement of October 2 mainly on the ground that it had been merged into the final agreement of October 4 and because of the parol evidence rule.

When the issue of fraud is raised, competent evidence that has a reasonable bearing on the issue is admissible and may be considered by the jury. All the facts and circumstances leading up to and connected with the transaction are, ordinarily, admissible. 20 Am.Jur. 320, Evidence § 345.

It is our opinion that the trial court correctly admitted the agreement in evidence as part of the circumstances to prove Isenhower’s cause of action for fraud. He was attempting to prove that Bell had represented to him that the debts would not exceed $8,500, and that he was induced to enter into the agreement thereby. The fact that such a representation had been put in writing in the agreement of October 2 would strengthen Isenhower’s case in this regard, and would be an admissible circumstance for the jury to consider in passing upon the fraud issue. This being so, it is unnecessary for us to consider Isenhower’s arguments that the two instruments, executed in close proximity to each other, were all part of the same transaction and should be considered together.

The final portion of Bell’s second point of error complains of the admission in evidence of testimony from Isenhower as to the amount owed by the feed store to Ralston-Purina Company, and what the status of that account was. The argument under the point does not refer the court to the place in the two-volume statement of facts where such testimony may be found or the objections thereto made on the trial. Be that as it may, the amount of the debts and to whom they were owed were a legitimate inquiry in the suit; and the trial court did not err in admitting the testimony.

Finally, there is the question as to whether there was fundamental error requiring a reversal of the case. We find none. The suit was properly brought in a court having jurisdiction of the subject matter. Assuming, without deciding, that lack of indispensable parties is fundamental error, the creditors mentioned in the Court of Civil Appeals are not such as to prevent the court from deciding the case between the people who were parties to the litigation. The Court of Civil Appeals concedes this by saying, “Our statement that all creditors of the Feed Store should be made parties was suggestive only, and was made in order to prevent a multiplicity of suits.” 356 S.W.2d at 489. Nor is there any error which directly and adversely affects the interest of the public generally. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; St. Paul Fire & Marine Insurance Co. v. Murphree, Tex., 357 S.W.2d 744 (1962).

Having examined the points of error of Bell in the Court of Civil Appeals upon which the judgment of reversal and remand could be sustained, and having found no such reversible error, our duty is to reverse the judgment of the Court of Civil Appeals, and to affirm the judgment of the trial court. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). It is so ordered.

The Respondent Bell is granted 15 days in which to file a motion for rehearing.

      . Subpoint (e) of point 3 is that the trial court erred in not submitting his special requested issue No. 5, same being amply raised by the evidence. The issue is not set out. The argument under the point is, “The pleadings and the evidence raised this issue of fact S.F. P. 37, P. 140. We believe the jury would have answered this special issue in favor of appellant.”
      Subpoint (h) of point 3 is that the trial court erred in not submitting his requested issue No. 8. It is not set out. The árgument under the point is: “There was considerable evidence on the egg money, S.F. P. 165, P. 166, and P. 167, and the same was very much in dispute and raised by both the pleadings and the evidence. The jury was entitled to have this Special issue submitted by the Trial Court. We believe the jury would have answered favorable to the Appellant.”
      Subpoint (i) likewise says the court erred in failing to submit his requested issue No. 9. It is not set out. The argument under the point is: “We believe that Appellees assumed payment of this account as set out in Exhibit ‘B’ and being the final sales contract dated Oct. 4, 195S and acknowledged Oct. 20, 1958.” Subpoint (j) complains of the failure to submit his requested issue No. 10. It is not set out. The argument under the point is: “It is appellant’s position that Appellee agreed to pay this amount as set out in the final sales contract dated Oct. 4, 1958 and acknowledged Oct. 20, 1958.”

      . The section of American Jurisprudence deals with other subjects than fraud, including duress and undue influence. Those matters are not before us, and the citation to the section is as to the question of fraud.


author: MORRISON, Judge.

text:
    Herman Ferandez COBARRUBIAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35464.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    James J. Shown, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. 'Dally and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is speeding; the punishment, a fine of $105.00.

The complaint was in all things regular and in compliance with the requirements set forth in Eaves v. State, Tex.Cr.App., 353 S.W.2d 231. However, when proof that the area in which the speeding occurred was “a business and residential district,” as alleged, was questioned, the State wholly failed to prove that it was in such a district, as defined in Article 827a, Sec. 8, Subsec. 1(b), Vernon’s Ann.P.C., that is, did not prove that the territory contiguous to the street in question had buildings in use for business or industrial purposes which occupied three hundred (300) feet of frontage on one side, or three hundred (300) feet of frontage collectively on both sides within any 600 feet, or which was improved with residences or residences and buildings in use for business for a footage of 300 feet.

Because the evidence is insufficient to support the conviction, the judgment is reversed and the cause remanded.


author: McDonald, judge.

text:
    Abundio ALMANZA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35429.
    Court of Criminal Appeals of Texas.
    March 6, 1963.

      Longoria & Evins, Edinburg, for appellant. -
    R. L. Lattimore, Dist. Atty., John F. Dominguez, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is neglect and refusal to provide for the support of a minor child; the punishment, twenty days in jail.

The appellant was charged by information with deserting, neglecting, and refusing to support his minor children, Abun-dio Almanza, Jr., and San Juanita Almanza, “on or about the 1st day of December... 1961.” The desertion count was dismissed by the state and the court charged on the latter elements only. Additionally, the legitimacy of San Juanita was questioned, and the court instructed the jury to disregard all evidence concerning her.

The prosecuting witness, Margarita G. Almanza, testified that she and the appellant were married on February 20, 1949, and were divorced on June 20, 19S0. It appears that she was the mother of three children, only one of whom was involved here.

The divorce decree was introduced to show that the appellant had been ordered to pay $5 per week support payments to the child. It also reflected that the appellant had been given weekly visitation rights with the child. Shortly after the divorce, a conflict between the parents arose over those rights. Appellant consulted an attorney, and soon stopped making the support payments.

Appellant testified that in 1952 he moved to the northern part of Texas in search of work, and that in 1953 he married his present wife, Yolanda Almanza, and had since lived near Plainview, where he worked as a field hand. He further testified that he had five additional children by this second wife and that this family required all he could earn.

Appellant first contends that the evidence was insufficient to support the conviction.

There is no question but that the appellant had not contributed to the support of the minor child since 1952, and there is proof of necessitous circumstances. The only real problem arises over the question of wilfulness. Quoting from Mercardo v. State, 86 Tex.Cr.R. 559, 218 S.W. 491, 8 A.L.R. 1312:

“The term ‘willful’ has been often defined by our courts, and as applied to this statute [Art. 602, V.A.P.C.] we think means not only with evil intent and malice, but that it also implies a set purpose and design.”

One requisite to showing wilfulness is that the accused had the ability to contribute to the support of his minor children. Adams v. State, Tex.Cr.App., 361 S.W.2d 877. This requisite has been met, here, by the appellant’s own testimony that in the year 1960 he had earned $30 per week, plus $385 from “sharecropping”; that in 1961 he earned $35 per week, plus $606 from “sharecropping.” This, connected with the fact that he made no contributions during this period, is sufficient to satisfy the statute. Appellant’s showing that his “second family” drained his financial ability did not negate the element of wilfulness. As noted by the Minnesota Supreme Court in State v. Lewis, 157 Minn. 250, 195 N.W. 901:

“The all too expeditious second marriage did not dissolve the pre-existing obligations of defendant to his minor children. If the self-imposed duties of his second matrimonial venture made it difficult for defendant to perform those of his fatherhood, he has only himself to blame. The law is too solicitous of the welfare of children to excuse, on such grounds, a father’s complete default in their support.”

Appellant contends, however, that he should have been allowed to testify that he stopped his support payments, under advice of counsel, because the prosecuting witness, the mother, refused to allow him to visit the child.

That a mistake of law does not justify action contrary to the law is so well established that we need not cite authority.

If the appellant were correct, any dispute between the mother and father would justify non-compliance with the statute. This is not the law, and the trial court did not abuse his discretion in refusing the appellant’s testimony.

The appellant’s duty to support the children continued after the divorce and was not altered by any disagreement with the mother or by any dispute over the custody of the child or his subsequent re-marriage and new family. Martinez v. State, 165 Tex.Cr.R. 596, 307 S.W.2d 259; Jones v. State, 159 Tex.Cr.R. 18, 261 S.W.2d 324; Thompson v. State, 158 Tex.Cr.R. 462, 256 S.W.2d 854; Freeman v. State, 103 Tex. Cr.R. 428, 280 S.W. 1069; Thomas v. State, 96 Tex.Cr.R. 131, 256 S.W. 286; Gully v. Gully (1921), 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564; Anno. 73 A.L.R.2d 960.

We have reviewed the other contentions of appellant, and also the informal bills of exception.

Finding the evidence sufficient and no reversible error appearing, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Richard SALINAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35435.
    Court of Criminal Appeals of Texas.
    March 6, 1963.

      Frederic Johnson, James M. Poynor, Sinton, for appellant.
    John H. Flinn, Sinton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is felony theft; the punishment, -enhanced under Art. 63,- Vernon’s Ann.P.C., by two prior convictions for felonies less than capital, life imprisonment.

The indictment charged the theft of two television receiving sets of the value of $100, ownership and possession of the property being alleged in Ronald Rodgers.

Rodgers, the injured party, testified that he worked part time for Brewer’s T V Appliance Store in the City of Sinton; that on the afternoon of May 16, 1962, he was working at the store and managing the same at the request of J. W. Brewer, the owner, while Brewer was in Corpus Christi; that around 2 o’clock, p. m., a man by the name of Benito Suniga came into the store and asked to see a used washing machine, át which time they went to the back and, while showing the machine, Rodgers saw a man carry a television set out the front door; that he then ran out to the front, where he saw Alfonso Garza sitting in a yellow Chevrolet automobile with a television set behind the seat, and saw appellant walking around the car with a television set in his hand; that he asked what they were doing with the sets and they did not say anything; that he reached in the car and got one of the sets and appellant handed him the other set. The witness testified that he then returned to the store with the two sets, called the sheriff, reporting the theft and giving him the license number of the automobile. He also testified that the two television sets were Philco portable 19-inch sets and that he had not given appellant or anyone else permission to take them from the store. He further testified that on the afternoon in question, while managing the store, he had the custody, control, and management of all property in the store.

. The injured party’s.testimony was corroborated by Brewer, the owner of the store, relative to his employment on the afternoon in question and having custody, control, and management of the store and merchandise located therein. Brewer testified that the two television sets had a retail value of $189.95, each.

It was shown that later in the afternoon appellant and his two companions were apprehended by the officers and, after being duly warned, appellant made and signed a written confession in which he admitted going to the store on the afternoon in question with his companions, Benito Suniga and Alfonso Garza, with the intention of stealing something and that while Suniga had Rodgers’ attention he and Garza took the two sets out of the store to the automobile.

Appellant did not testify but in open court admitted that he had been convicted of the two prior offenses alleged in the indictment.

The court submitted to the jury the issue of appellant’s guilt of the primary offense, under a charge on the law of principals.

We find the evidence sufficient to sustain the conviction and overrule appellant’s contention that there was a fatal variance between the allegations and the proof as to the person alleged to be in possession of the property stolen.

While J. W. Brewer was the owner and manager of the store from which the television sets were stolen, the proof clearly shows that on the afternoon in question the injured party, Rodgers, as his employee, in whom possession of the stolen property was alleged, had the actual care, control, and management of the property. By virtue of such care, control, and management, Rodgers was in possession of the two television sets taken from the store.

Under the provisions of Art. 402, Vernon’s Ann.C.C.P., where one person owns the property, and another has possession of the same, the ownership may be alleged to be in either. Ritchie v. State, Tex.Cr. App., 344 S.W.2d 878.

We also overrule appellant’s contention that the judgment entered by the court is invalid because it does not follow the verdict. Such contention is based upon the fact that only the issue of appellant’s guilt of the primary offense was submitted by the court to the jury and by their verdict the jury found appellant guilty of the primary offense without a finding that he had been previously convicted of the two offenses charged.

No objection was made by appellant to the court’s charge.

The court’s failure to submit to the jury the question as to whether appellant had twice been previously convicted of the offenses alleged was not error, in view of appellant’s judicial admission in open court that he had been so convicted. Pullen v. State, 129 Tex.Cr.R. 23, 84 S.W.2d 723.

Art. 693, V.A.C.C.P., provides that the jury shall assess the punishment “in all cases where the same is not absolutely fixed by law to some particular penalty.”

It was not the jury’s duty to fix the punishment upon appellant’s third conviction of a felony offense less than capital. Under the provisions of Art. 63, V.A.P.C., the punishment of life imprisonment was mandatory. Haro v. State, 132 Tex.Cr.R. 507, 105 S.W.2d 1093; Punchard v. State, 142 Tex.Cr.R., 531, 154 S.W.2d 648.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Lindy Q. MIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 35106.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    Rehearing Denied Feb. 20, 1963.
    Second Rehearing Denied March 20, 1963.

      Lindy Q. Mixon, appellant, pro se.
    Jack Tidwell, Dist. Atty., Mike Berry, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary of a private residence at night, with two prior convictions of felonies less than capital alleged for enhancement; the punishment, life.

Kenneth Smith and his wife went to sleep in their apartment in Odessa on the night in question; he was awakened during the night and discovered appellant, without his shoes, in the next room; Smith told his wife to call the police, and appellant attempted to flee. After Smith caught appellant and threw him to the floor, appellant asked him not to call the police, stating, “I have your clothes. * * * Let me go — -and we will forget it.” Smith and his wife continued to struggle with appellant and were able to detain him until the police arrived, at which time Smith’s entire wardrobe .was recovered from an automobile parked nearby, as was a pair of shoes which were placed on appellant’s feet and he was carried away. Mrs. Smith and the arresting officers also testified.

The prior convictions were established.

Appellant did not testify or offer any evidence in his own behalf. We shall attempt to discuss the contentions advanced by appellant. He first contends that, even though Kenneth Smith testified that the property was taken from his apartment without his consent, the State did not make out a case because they failed to propound the same question to Smith’s wife. The indictment charged a breaking of a house belonging to Kenneth Smith with intent to steal Smith’s property. Kenneth’s testimony was sufficient to make out the State’s case. We quote from 4 Branch’s Ann.P.C., 2nd Ed., Sec. 2536, page 864: •

“Under the allegation that the entry into the house was with intent to commit theft, the State is not required to prove that defendant did not have the consent of persons not named in the indictment to take the property therefrom.”

We have concluded that the fact that appellant was found shoeless in Smith’s apartment, offered to return Smith’s clothes if the matter could be dropped, plus the fact that a pair of shoes was found in the same automobile where Smith’s clothes were located and that appellant wore the shoes away, conclusively established appellant’s intent to appropriate Smith’s wardrobe to his own use and benefit, and overrule his contention in this respect.

We likewise find no merit in the contention that the prior convictions alleged for enhancement were not admissible because the indictments charging such offenses failed to allege that the offenses named therein had occurred anterior to their presentment. Such omission is not a fundamental error and may not be raised collaterally. Flores v. State, 143 Tex.Cr.R. 382, 158 S.W.2d 1012. We observe, however, that each indictment shows to have been filed anterior to the date alleged therein.

The court did not err in permitting the State to reopen its case and offer additional evidence before the charge was read to the jury. Flores v. State, 159 Tex.Cr.R. 608, 266 S.W.2d 386, and Martin v. State, 160 Tex.Cr.R. 364, 271 S.W.2d 279.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

We have again reviewed the record in the light of appellant’s motion for rehearing and remain convinced that a proper disposition was made of the case in our opinion on original submission.

The petition for writ of habeas corpus which appellant has attached to his brief on motion for rehearing will not be permitted as such may not be used as a substitute for appeal. Ex parte Eldridge, 154 Tex.Cr.R. 50, 224 S.W.2d 262.

In refusing to consider the petition for habeas corpus we are not unmindful of appellant’s right to attack the validity of his conviction on the ground of denial of due process in an original habeas corpus proceeding brought for such purpose. Ex parte Bush, 313 S.W.2d 287, 166 Tex.Cr.R. 259; Jones v. Cunningham, 83 S.Ct. 373.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: McNEILL, Justice.

text:
    L. E. SHEPPARD et ux., Appellants, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 6538.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 17, 1963.
    Rehearing Denied Feb. 27, 1963.
    Stephenson, Stephenson & Thompson, Orange, for appellants.
    Marcus & Weller, Beaumont, for appellee.
   McNEILL, Justice.

This venue question arises upon an action for declaratory judgment begun in the District Court of Jefferson County under authority of Art. 2524-1, Vernon’s Ann.Tex. Civ.St. Employers Casualty Company issued a policy of automobile liability on March 1, 1960, to Josey-Miller Company, a Beaumont corporation, as named insured. This policy insured said company against claims arising out of the operation of certain trucks described in said policy and was upon the standard form providing that its coverage extended to any person using any of said vehicles with permission of the named insured.

Early in the afternoon of October 8, 1960, Morris Smith, while operating one of insured’s trucks, was involved in a collision at the intersection of Highways 62 and 406 in Orange County. As a result of this collision, L. E. Sheppard brought suit in the District Court of Orange County against Josey-Miller Company and its driver, Morris Smith, for damages because of certain personal injuries sustained by Sheppard and wife in said accident. Plea of privilege was filed in that suit by Josey-Miller Company and upon a hearing was overruled. This action was affirmed by this Court, Josey-Miller Company v. L. E. Sheppard, Tex. Civ.App., 357 S.W.2d 488.

The action first above mentioned, instituted by-Employers Casualty Company for declaratory judgment, was brought against Morris Smith and Sheppard and wife. The petition in this action alleged that Sheppard had instituted suit in the District Court of Orange County against Josey-Miller Company and Morris Smith to recover damages for alleged injuries growing out of said collision, and that at the time of the accident said Morris Smith was not driving the truck with permission of the insured. This was followed by a prayer that the court establish the fact to be that at the time of the collision Smith was not operating said truck with insured’s permission, and that the court pronounce its judgment absolving Employers Casualty Company from any duty to defend said Smith and from any duty to pay off and discharge any judgment for damages that may be obtained by the Sheppards against him as a result of said collision. The Sheppards filed a plea of privilege to be sued in Orange County. This plea was controverted upon the grounds set forth in subdivisions 4 and 29a of Art. 1995. Upon a hearing, the plea of privilege was overruled and the correctness of that order is now before us.

This type of action appears to be proper under the circumstances. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed 826; Borchard, Declaratory Judgments, p. 668.

Since the trial court overruled the plea of privilege there is an implied finding therefrom that, at the time of the collision, Smith was not operating the vehicle with permission of the named insured. However, the statement of facts of the hearing upon the plea accompanies the record, and in such case the court’s findings are not conclusive on appeal. Hancock v. Zurich Ins. Co., Tex.Civ.App., 361 S.W.2d 248. We have carefully examined this statement of facts. It was shown that Smith was a regular truck driver for Josey-Miller; that his duty was to deliver feed to customers in the surrounding area and when the delivery was made, to come directly back to the plant. The truck drivers had been instructed to use the most direct route to travel. However, the routes to be used were left to the drivers’ discretion, and they were not told to use any exact route. The drivers were also instructed that they could not use the trucks driven for any personal use but the term “personal use” was not further explained.

On October 8, 1960, two trucks were assigned to carry feed to Butaud’s Chicken Farm near Bridge City in Orange County. Smith and another driver operated these trucks. They had unloaded the feed at Butaud’s, and according to Smith, the other truck driver suggested that they go by Mauriceville on their way back to Beaumont to pick up some meat for their individual use. This had been done from time to time in the past by drivers but no official of Josey-Miller knew this. There were three routes that could be taken back to the Josey-Miller plant in Beaumont from Butaud’s place. One through Orangefield, probably the shortest, was a very devious route, had hairpin turns and was quite narrow and wandered and wound through the woods for a considerable distance. The second route, the one that was used by the trucks in going to Butaud’s, was known as Highway 90. On the outbound trip the drivers turned off at the McLewis School, and coming back they could get back on Highway 90 by turning left at the McLewis School. It was shown, however at the time, this highway was under construction, was rough and carried considerable traffic. The third route was by crossing Highway 90 at the McLewis School going north toward Mauriceville and thence by Highway 235 into Beaumont. It was estimated by witnesses that the distance by this route was two to four miles farther than by Highway 90. But there was less traffic this way and the road was in very good condition, and that in point of time consumed this route would be as short as any other.

We held in Josey-Miller Co. v. Sheppard, supra, that at the time of the collision Smith was operating the truck in the course of employment for his employer. There is a difference between “course of employment” and operating a vehicle with “permission” of the named insured. The latter term is a broader one than the term “in course of employment.” But a person may yet be in the course of his employment for another, although at the time he was doing an act expressly forbidden by the master. I. & G. N. R. Co. v. Anderson, 82 Tex. 516, 520, 17 S.W. 1039; 38 Tex.Jur. 2d 505. The accident involved occurred before Smith had arrived at the place he was to get the meat. Thus, at the time he was mingling his master’s business with his own. If this is a deviation, under the rule adopted in Olgin v. Employers Mut. Casualty Co., Tex.Civ.App., 228 S.W.2d 552, it was only a minor deviation from the “permission” granted to operate said truck. From this it follows that the trial court’s ruling is without support in the evidence. Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791. The burden to establish by a preponderance of the evidence the venue fact that the vehicle at the time was not being driven with the permission of the insured was upon Employers Casualty Company. This burden was not discharged. Forester v. Foreman, Tex.Civ.App., 171 S.W.2d 190.

The trial court’s order is therefore reversed and the cause as to the Sheppards is hereby ordered transferred to the District Court of Orange County.


author: BELL, Chief Justice.

text:
    ATHENS CANNING COMPANY, Appellant, v. M. L. BALLARD, Appellee.
    No. 14073.
    Court of Civil Appeals of Texas. Houston.
    Feb. 14, 1963.
    Rehearing Denied March 14, 1963.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Blake Tartt, Sam H. Hood, Jr., Houston, of counsel, for appellant.
    F. F. Benton, Houston, Burris, Benton & Zwiener, Houston, of counsel, for ap-pellee.
   BELL, Chief Justice.

This is a plea of privilege case. The appellee filed suit against appellant to recover damages sustained by his wife from injuries suffered by her as a result of having bitten a burr which was allegedly contained in a can of purple hull peas packaged in a tin can by appellant. The theories of liability were breach of implied warranty, negligence, and application of the doctrine of res ipsa loquitur. Appellant filed its plea of privilege, asserting the right to be sued in Henderson County, the county where it has its principal office. Appellee seeks to maintain venue in Harris County under Subdivision 23 of Article 1995, Vernon’s Ann.Tex.Civ.St, providing, among other things, that suit may be maintained against a corporation in the county where the cause of action or a part thereof arose.

Trial was to the court without a jury. The court overruled the plea.

There are no findings of fact or conclusions of law. The facts relied on by appellee to establish his case occurred in Harris County. The only question we have is whether such facts are sufficient to establish, by a preponderance of the evidence, that the burr was in the peas when packaged by appellant.

Appellee and his wife were the only witnesses. Mrs. Ballard testified that on November 6, 1961, she purchased the can of peas at the Florine Super Market in Houston. The can was taken from a shelf in the store and it was sealed. She took the peas home and opened one of the cans and fixed the peas for dinner. She put the peas in a clean boiler, seasoned them and warmed them. There was no foreign matter of any kind in the boiler. As she was eating dinner, as she ate some of the peas she bit down on a burr. It stuck in her mouth and cut her mouth. She had to be treated by a doctor. Every step in the preparation of the peas was done by her alone. After putting them on the stove she did not walk away from them. For this dinner she also prepared steak and mashed potatoes. She, her husband, and 8 year old son ate together. She put peas, steak and mashed potatoes on the table. The steak, peas and mashed potatoes were not mixed. Prior to biting down on the burr she had taken several bites of the meat, potatoes and peas. The meat, potatoes, and peas were not mixed on her plate. They were all on the plate. They had been cooked on the stove at the same time though in different containers. At the time she took the bite of peas and bit down on the burr she had no other food in her mouth. In cooking she had seasoned them with a little salt, pepper and shortening (not bacon).

Mr. Ballard testified he saw Mrs. Ballard open the can and put the peas in the aluminum pot. He also corroborated her as to the fact she bit down on the burr. Also, he testified the meat, peas and potatoes were all put on her plate.

The essence of appellant’s position is that the above testimony does not show by a preponderance of the evidence that the burr was in the can of peas, but it could just as well have come from the meat, potatoes, salt, pepper or shortening.

The burden is, of course, on ap-pellee to show by a preponderance of the evidence that the burr was in the can of peas. There is no direct evidence of this because no one saw the burr in the peas when the can was opened and the contents poured into the pan. A fact, however, may be established by circumstantial evidence. The circumstantial evidence is sufficient if on a basis of probabilities it establishes the existence of the ultimate fact. Collier v. Hill and Hill Exterminators, Tex.Civ.App., 322 S.W.2d 329, 73 A.L.R.2d 1141, C.C.A.; Bock v. Fellman Dry Goods Co., 212 S.W. 635, Tex.Com.App.

We have reached the conclusion that the circumstances in evidence are sufficient to show that on a basis of probability the burr was in the can of peas when it was purchased. The peas were taken from a sealed can and put in a pan which was free from any foreign substance. They were seasoned with a little salt, pepper and shortening. It is suggested by appellant that the burr might have been in the salt, pepper or shortening. When we consider the very nature of the process through which these ingredients go, while there is a possibility that the burr could have been in one of them, it is not probable. To begin with, salt and pepper in their raw state are not found in an environment where they are close to burrs. Then, pepper is so finely ground, it is unlikely that a grass burr or sand burr or cockle burr, whichever it was, could escape being pulverized. Salt, while not so finely ground, is prepared in crystals much smaller than the ordinary size of a burr. It is highly unlikely that it would not have been so finely ground down as to lose its identity as a burr in the salt. Too, we know that salt and pepper are generally dispensed in the home through shakers that would not permit the exit of a burr. While it is not shown that a shaker was used, even if it was not it is unlikely that, when we consider the small quantity generally used in seasoning a small can of peas, a burr could have escaped the attention of Mrs. Ballard when she was using the seasoning. We do not know what kind of shortening was used, whether vegetable or animal. If animal, it is certainly highly unlikely that a burr would be in it. If vegetable, it is, in the light of the process of rendering, highly unlikely that a burr would be present. While it is possible that the burr could have been in these ingredients, it is a very remote possibility. Peas in their normal environment are many times found growing in the field with burrs. It is so easy for a burr to get in the peas. Too, because of the size and color of the burr and peas it would be difficult for the eye to distinguish between them. Too, in the process of preparation there can be no crushing or grinding nor can any straining process strain the burr from the peas.

While the meat and potatoes were put •on the same plate as the peas, they were not mixed. They were also cooked on the same stove, but in separate containers. Mrs. Ballard had eaten some of the meat, potatoes and peas before she bit on the burr. However, it is significant that she testified she had no other food in her mouth at the time she took a bite of the peas and bit down on the burr. It is suggested that she could have had the burr in her mouth' from the other food previously eaten. This is possible, but is highly unlikely since she did not bite the burr until she took the separate bite of peas, and until this was done she had experienced no discomfort in her mouth.

Appellant cites Ewing Von Allmen Dairy Co. v. Miller, 264 S.W.2d 862 (Ky.), and Miller v. Gerber Products Co., 207 Ga. 385, 62 S.E.2d 174, 52 A.L.R.2d 155. Each of those cases involved a jurisdiction that apparently bases liability of the manufacturer on negligence and not on implied warranty, as does this state. The real basis of the decision in those two cases is that to infer from the circumstances that the adulterating matter was in the food when packaged and then to infer from this that the manufacturer was negligent would be basing one inference upon another and such was not permissible. It is true that some language used by the courts indicates the circumstances shown there were not sufficient to lead to the inference that the adulterating substance was in the food. With such language we disagree.

In Texas the liability of the manufacturer of food prepared for human consumption is based on implied warranty. To establish liability the injured party need only establish that the adulterating substance that caused the injury was in the food packed by the manufacturer. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479.

The judgment of the Trial Court is affirmed.


text:
    Carolyn LUCAS, Appellant, v. Philip B. LUCAS, Appellee.
    No. 6577.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 13, 1962.
    On Motion for Rehearing Nov. 7, 1962.
    Rehearing Denied Dec. 12, 1962.

      Ernest Browne, Everett Lord, Beaumont, for appellant.
    W. O. Bowers, Jr., Beaumont, Bruce Vo-taw, Vidor, for appellee.
   McNEILL, Justice.

This is an appeal in the pending divorce case between appellant and appellee, from an order of the Court of Domestic Relations of Jefferson County, granting a temporary injunction against the taking of the deposition of a witness.

Appellant and appellee were married to each other August 20, 1955. In her petition for divorce appellant alleged that the parties had three children, all of tender age, and that appellant was expecting another child. The petition alleged that appellee maintained complete control of the property of the parties and that she had no knowledge concerning the community estate or the separate estate of appellee, but that appel-lee owned considerable separate property of which she had little knowledge. She prayed for divorce, for custody of the children, for division of the estate of the parties and order for proper support of their children.

Appellant filed notice to take the deposition of H. E. Dishman. Mr. Dishman is trustee in three trusts created by appellee’s father for the benefit of appellee and other beneficiaries. Dishman was served with subpoena duces tecum ordering him, at the time of taking the deposition, to produce the records of income and assets and other records of these trusts. Before the date for taking the deposition, on application of the trustee Dishman, the trial court granted a. temporary restraining order forbidding the taking of the deposition, and at the time set a hearing on application to make the restraining order a temporary injunction. On the hearing the court granted the temporary injunction against taking the deposition.

Each of the trusts involved are spendthrift trusts. We adopt the following from ap-pellee’s brief describing these trusts:

“Harry Lucas and his wife Mildred Lucas by deed of April 5, 1948, filed for record on April 12, 1948, recorded in Volume 690, page 336, Deed Records of Jefferson County, Texas, conveyed certain property to H. E. Dishman as trustee of The Philip Bland Lucas Trust for the benefit of their son Philip Bland Lucas and their sister Loraine Lucas Simmons, said trust to endure for the lives of said son and sister, or the survivor of them, to use and expend the trust estate, the income or corpus, or both, for the benefit of said son and sister, or either of them, in the manner and amounts and at the times the trustee may in his sole discretion determine meet and proper. Philip Bland Lucas was then 14 years, old. Loraine Lucas Simmons is still living.
“Harry Lucas died on August 26, 1951, and by his will dated May 16, 1951, probated in the County Court of Jefferson County, Texas, on September 10, 1951, and entered in Volume 157, Page 386, probate minutes of said court, devised unto H. E. Dishman and Mildred Lucas as trustees for the benefit of his two sons Harry Lucas, Jr. and Philip Bland Lucas, in two equal shares, all of his property in the State of Louisiana, one share to be known as The Lucas Louisiana “B” Trust for the benefit of Philip Bland Lucas, the same to terminate 10 years after testator’s death or at the expiration of 10 years after the majority of said beneficiary, whichever shall be later, which termination date will be July 15, 1965, and devised all of the rest, residue and remainder of his estate, (except the bequest of his interest in the estate of his deceased father Joe Lucas in two equal shares to The H. Lucas, Jr. Trust and The Philip Bland Lucas Trust aforesaid) in two equal shares, one of which shares be constituted The Lucas Texas 'B’ Trust for the benefit of his son Philip Bland Lucas, said trust to endure until July 15, 1964, and authorized, empowered and directed his trustees during the minority of said son to pay and deliver to his wife Mildred Lucas such sum or sums as in their discretion may be required for the maintenance, support and education of said son, but provided that after said son reached his majority said trustees may pay to him from time to time and for any purpose such sums of money as may in the trustees’ sole discretion seem proper, and also provided that the trustees pay to his mother Annie Lucas and to his sister Loraine Lucas Simmons such sums of money, from time to time, as in their sole judgment and discretion may assure their medical care, maintenance, support and comfort. Philip Bland Lucas was then 17 years old. Annie Lucas and Loraine Lucas Simmons are still living.
“The above mentioned deed and will contained the same or similar language which created said trusts 'spendthrift’ trusts:
“ ‘No title in the Trust Estates here'by created nor in the income accruing therefrom until delivered to the beneficiary, or in the accumulation thereof, shall vest in any beneficiary hereunder, and no beneficiary shall have the right or power to transfer, assign, anticipate or encumber his or her income therefrom during the continuance or life of the Trusts hereby created, and neither the principal nor the income of the said Trust Estates shall be liable in any manner in the possession of the Trustees for the debts, contracts, liabilities or engagements of any beneficiary, nor the same be subject to process or seizure of any court.’ ”

The trial court’s action was based upon his belief that since the trusts each provided, in effect, that no title in the trust -estate, nor the income accruing therefrom, shall vest in any beneficiary until delivered to the beneficiary, and because of the spendthrift provisions of each trust, as long as property of the trusts, either principal or income, is held by the trustee and not delivered to the beneficiary, the beneficiary would have no right therein; and because the beneficiary has no right therein, neither would his wife nor children.

The injunction should not have been granted. Rule 186a, Texas Rules of Civil Procedure as amended by order of July 26, 1960, effective January 1, 1961, provides, in pertinent part, as follows:

“Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. Unless otherwise ordered by the court as provided by Rule 186b the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will not be admissible at the trial of the cause in which the deposition is taken if the testimony sought appears reasonably calculated to relate to the discovery of admissible evidence at such trial.”

The primary object of judicial inquiry is to seek and establish the relevant facts. Therefore the liberal use of means of discovery will be upheld. One of the most effective means of discovery is by the use of depositions; and restraint against their employment should be cautiously exercised.

We do not accept the broad statement of appellee that the trustees hold the absolute title to all of the properties in said trusts, and that the beneficiary Philip B. Lucas has no title or interest therein except a contingent interest, i.e., he would have only such interest in funds therefrom as may be paid and delivered to him from time to time by the trustees in their “sole discretion”. When this cause was submitted it was stated that the trustees had paid appellee $35,000 or $40,000 per year for several years, but since the present suit was filed all payments of income to appellee from the trusts have been stopped. A supplemental transcript reflects that ap-pellee has recently filed a motion to reduce temporary alimony for his wife and support of his children from $1,000.00 per month, as first set by the court, because of lack of funds. Under the facts, we think appellant would be entitled to inquire into the incomes of the various trusts and the amounts, regularity and time of support payments which have been made by the trustees to appellee as beneficiary. This inquiry would bear upon the setting of any amount of temporary alimony and support of the children. The “sole discretion” stressed by appellee is one that may not be exercised arbitrarily. First National Bank of Beaumont v. Howard, 149 Tex. 130, 229 S.W.2d 781; State v. Rubion, 158 Tex. 45, 308 S.W.2d 4 (11). It is certainly proper for appellant to inquire into this feature of the trusts and trustee’s action. See Bogert, Trusts & Trustees, 2d Ed., Sec. 560, pp. 118-128.

The trusts involved were created at least in part for the support of appellee. Being the husband of appellant and father of her children, he owes them the duty of support. When a man is married the obligation to his family is considered as a part of the cost of support for himself. It is against public policy to allow such a person to be well taken care of by a trust when those who have every right to look to him for support are doing without. Seidenberg v. Seidenberg, D.C., 126 F.Supp. 19; 96 U.S.App.D.C. 245, 225 F.2d 545. See also, Bogert, Trusts & Trustees, Sec. 223, pp. 484-492.

Appellant urges that the accumulated undistributed income from the trusts constitutes community property of the parties. In view of the fact that one of the trustees in two of the trusts is not a party to this proceeding, and believing that she is a necessary party for the purpose of passing on this question, we decline to do so here. McDonald v. Alvis, 154 Tex. 570, 572, 281 S.W.2d 330.

The injunction is dissolved.

On Appellant’s Motion for Rehearing

At a former day of this term this court held that the temporary injunction restraining the taking of trustee Dishman’s deposition was improvidently granted and ordered it dissolved. Thereafter appellee Dishman filed his plea to the jurisdiction of this court urging for the first time that the trial court had not granted a temporary injunction, and that because thereof this court had no jurisdiction of the appeal. On October 10, 1962, we sustained appellee’s plea, set aside our original judgment and ordered that the appeal be dismissed.

Appellant has timely filed her motion for rehearing, complaining of this court’s action in dismissing the appeal. Since the question was one that had not been presented in the original submission before us, we have heard oral argument thereon.

We conclude that we were wrong in sustaining appellee’s motion to dismiss this appeal. As stated in the original opinion, the trustee filed a sworn application with the trial court, praying that a temporary restraining order be issued forbidding the taking of the deposition, and upon a hearing to be set by the court, that a temporary injunction be granted against the taking of the deposition, and upon final hearing that the injunction be made permanent. The application made no reference to or mention of Rules 186a or 186b, T.R.C.P. After granting the temporary restraining order the court set a hearing on the application for temporary injunction for May 10, 1962, but later changed the hearing to May 3rd, 1962. The Statement of Facts on this hearing are before us. At the opening of the hearing the court stated:

“THE COURT: Now, the court set this down for a hearing to determine whether I should — of course, I granted this temporary restraining order and quashed that subpoena. But this was set down by me to have all of you here to determine if those two, either or both of those writs should issue — what you have prayed for.”

After statement by one of counsel for appellant the court further stated:

“THE COURT: All right. I will hear all matters together as to whether he is entitled to his relief and whether you are entitled to yours. We will hear it all together.”

After the evidence was heard, counsel for the trustee stated:

“MR. BOWERS: If the court please, unless the plaintiff here can show an authorized purpose of these records in this divorce suit, the temporary injunction should be granted. The Plaintiff or the defendant only has a contingent interest in the property belonging to the trust estate.”

In the argument which followed Mr. Bowers again stated:

“MR. BOWERS: As far as injunctions to restrain taking depositions is concerned, your Honor, Lowe and Archer, Texas Practice, says that an injunction may issue to prevent the taking of deposition where there is no authority for the taking thereof or where the taking of such deposition is for an unauthorized purpose.”

After further argument before the court between counsel, the court státed: “He (trustee) is asking in his application that this subpoena duces tecum be quashed” whereupon the following comment of counsel was made:

“MR. BROWNE: Yes, asking that it be quashed and that this injunction be made permanent.”
“MR. BOWERS: That’s right.”
“MR. ROBICHAU: We are here under Rule 186b, a and b too, your Honor, in that application.”
“MR. BROWNE: No, they are not here under ‘A’. All they are here for is motion to quash and injunction and restraining order restraining us from taking a deposition. That was all that was served on us. Is the court under the impression that there is something else here?
“THE COURT: The court is under the impression he is stating here that you do not have the right to take this— do not have a right to look into these records because of these trusts instruments but he has plead here because of the provisions of them—
“MR. BROWNE: Well, in the order of the court he had listed an injunction ■ — that the court issue a temporary restraining order, it is accordingly ordered that the clerk of this court issue a temporary restraining order and then down to the — next to last — it is further ordered that said application for a temporary injunction effective until final hearing hereon. That is all that has been issued by this Court is an injunction. And, we ask, your Honor, specifically, that it be dissolved.”

It has been made known to us by affidavit that counsel for appellee, after the conclusion of the hearing, submitted a proposed order for the court to sign which would have dissolved the temporary restraining order and quashed the subpoena duces tecum as was done in the court’s order. Following this the proposed order read:

“ * * * And it is the further ORDER and DECREE of the Court that under and by virtue of Texas Rules of Civil Procedure Nos. 186a and 186b the books and records of the Lucas trusts mentioned in said subpoena duces tecum shall not be inquired into by the plaintiff, Carolyn Lucas and that the said H. E. Dishman shall not be required to produce said books and records and he shall not be required to give any evidence in regard to the assets, income and records of said Lucas trusts.”

In the order executed by him the court did not use the phrase, “under and by virtue of Texas Rules of Civil Procedure Nos. 186a and 186b” as will be reflected in the pertinent parts of the order which we now set out as the one entered by him and the one appealed from:

“Be it remembered that on this the 3rd day of May, 1962, came on to he heard the motion to quash subpoena and application for injunction filed herein by H. E. Dishman on April 30, 1962, and also the motion to dissolve injunction filed herein by Plaintiff, Carolyn Lucas on May 3, 1962, and appeared the Plaintiff and Defendant by their attorneys, and all parties announced ready for trial, and the Court after reading the pleadings and hearing the evidence and argument is of the opinion and finds that The Philip Bland Lucas Trust, The Lucas Louisiana ‘B’ Trust and The Lucas Texas ‘B’ Trust have not been terminated and that the Defendant, Philip B. Lucas has no right to any of the assets or income of these trusts nor will he have any such right until July 15, 1964; and the Court further finds that in the trial of a divorce between these two parties it could not by Judgment award either party any of the assets or income of the above described trusts.
“THEREFORE, it is ORDERED, ADJUDGED and DECREED by the Court on his own motion that the temporary restraining order issued by this Court on April 30, 1962, be and it is hereby dissolved.
“And it is also ORDERED that the subpoena duces tecum issued and served on H. E. Dishman to appear and produce the books and records of the above mentioned Lucas trusts on May 4, 1962, at 2:00 o’clock P.M. at 1012-1018 Good-hue Building, Beaumont, Texas, be quashed and the same are hereby quashed.
“And it is the further ORDER and DECREE of the Court that the books and records of the Lucas trusts mentioned in said subpoenas duces tecum shall not be inquired into by the Plaintiff, Carolyn Lucas and that the said H. E. Dishman shall not be required to produce said books and records and he shall not be required to give any evidence in regard to the assets, income and records of said Lucas trusts.”

Was the order one granting a temporary injunction? An injunction was defined in Railroad Commission v. A. E. McDonald Motor Freight Lines, Tex.Civ.App., 127 S.W.2d 932 (935), as follows:

“ * * * According to Standard Dictionary, an injunction is defined as ‘a judicial order or process, operating upon the person, requiring the person to whom it is directed to do or (usually) refrain from doing some designated thing,’ * *

High on Injunctions (4th Ed.), Vol. 1, Sec. 1, p. 2, states: “A writ of injunction may be defined as a judicial process, operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing.” The order providing that the books and records of the Lucas Trusts * * * “shall not be inquired into by the Plaintiff Carolyn Lucas, and that the said H. E. Dishman will not be required to produce said books,” etc., acts upon these parties and restrains appellant from making inquiry by deposition. This is, in effect, a temporary injunction against appellant. Roosth v. Roosth, Tex.Civ.App., 181 S.W.2d 974. No bond was required under Rule 684 in the present case; but neither was it required in the Roosth case.

As further supporting our view that the order appealed from was one granting a temporary injunction, it must be borne in mind that the issues upon which the parties go to trial are determined by the pleadings. 33 Tex.Jur. 653. The nature of a suit is determined from the allegations of the petition. Collins v. Griffith, Tex.Civ.App., 105 S.W.2d 895. The application involved was purely one for injunction. The prayer of the application was, first, for temporary restraining order, second, temporary injunction, and third, on final hearing that the injunction be made permanent. From the quoted excerpts of the statement of facts reflecting argument before the court, it is further clear that the parties considered the hearing to be one upon whether a temporary injunction should be issued. This construction having been placed by the parties upon the pleadings in the trial court, this court will adhere thereto. 3 Tex.Tur.2d 633.

We do not agree with appellee that the trial court’s order was under or by virtue of Rules 186a and 186b. The court struck out of the proposed order tendered him by appellee’s counsel any reference to the rules. Also, we think it fair to presume that the trial court followed the law and acted within the scope of the parties’ pleadings. Wood v. Farm & Home Savings & Loan Ass’n, Tex.Civ.App., 86 S.W.2d 871. It will be noted that Rule 186b provides that after notice is served for the taking of a deposition it is provided “upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown,” the court may make an order that the deposition shall not be taken. No such motion was made nor notice given. In addition to the presumption that the court intended to stay within the scope of the pleadings, the recitation in the trial court’s order “came on to be heard the motion to quash subpoena and application for injunction — and also the motion to dissolve injunction” and the record of the hearing1 as set out above convince us that he actually did so. He dissolved the temporary restraining order on his own motion, evidently since it was originally granted to exist until May 10th, 1962, and he did not want the two orders to overlap in time. No recitation appears in the order that he on his own motion, was granting relief to the trustee under Rule 186b, if such could be so done.

The former order of this court setting aside our original judgment and withdrawing our opinion thereon, as well as the order dismissing the appeal, are hereby set aside and the original order reversing the judgment of the trial court and dissolving the temporary injunction granted is reinstated.

We have considered appellee’s motion for rehearing, filed with the plea to the jurisdiction of this court, and it is overruled.


author: WILLIAMS, Justice.

text:
    Isabel FLORES et al., Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellees.
    No. 16109.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1963.
    Rehearing Denied March 15, 1963.

      McKool & McKool, Dallas, for appellants.
    O. O. Touchstone and John B. Webster, Dallas, for appellees.
   WILLIAMS, Justice.

From an adverse jury verdict and judgment in a wrongful death action based upon a railroad crossing accident appellants appeal. By their sole point of error appellants complain of the admission of certain testimony of a police officer who investigated the accident. We have con-eluded that no reversible error is demonstrated by the record and therefore the judgment of the trial court is affirmed.

On February 3rd, 1961 Ben M. Flores was killed in an automobile — train collision in Dallas, Texas, where the Missouri-Kansas-Texas Railroad Company tracks cross Harry Hines Blvd. Suit was instituted by plaintiffs-appellánts for damages resulting from the death of Flores. A large number of acts of negligence were alleged against the Railroad Company and its engineer. Defendants countered by alleging a large number of acts of contributory negligence against the deceased Flores. At the conclusion of the evidence the trial court submitted the case on eighty-one special issues. Thirty-nine of these special issues inquired concerning the negligence and proximate cause on the part of the defendants. All of these issues were answered by the jury in favor of the defendants thereby finding that the defendants were not guilty of any negligence which proximately caused Flores’ death. In thirty-eight special issues the court inquired concerning various acts of contributory negligence on the part of the deceased Flores, including issues with' reference to proximate cause. All of the issues were answered against plaintiffs with the exception of the issues relating to speed. The jury found that Flores was guilty of contributory negligence in- failing to keep a proper lookout; by failing to bring his automobile to a stop; by failing to slow down his automobile; by failing to apply his brakes; by failing to listen for a horn or whistle; by failing to bring his automobile to a stop within no more than 50 feet nor less than 15 feet from the nearest rail of the railroad crossing. In answering the issues relating to money damages the jury answered “no dollars and no cents”. For the purpose of this opinion it is important to note that the trial court submitted no issues to the jury relating to the question of “right-of-way” nor was any legal definition of the term “right-of-way” given as a part of the court’s charge.

During the trial of the case appellees called as one of their witnesses officer M. E. Baker, of the Dallas Police Department, one of the officers who investigated the collision shortly after it occurred. This officer had made certain notes in connection with his investigation and had prepared, a written report relating to his findings. As a part of this report he had stated that Flores had failed to yield the right-of-way to the switch engine on the occasion in question. Appellees attempted to offer in evidence this report but same was not admitted because of objections interposed by appellants’ counsel. The record shows that several efforts were made by appel-lees’ counsel to introduce the report into evidence but each time the court sustained appellants’ objection thereto. Thereupon the predicate was layed to demonstrate the witness to be an expert in the field of traffic investigation. The witness testified that he had received special training in a police department school which taught him how to make a correct investigation in cases of this kind; that he had been doing this kind of work exclusively for over five years and that, based upon such training, he felt able and qualified to make an intelligent investigation and report same fairly and accurately. Upon being asked questions concerning his expert opinion objection was made but overruled by the court with the statement that: “I am letting it in on the theory that he is an expert. Go ahead.” Thereupon the following proceedings occurred:

“Q. Well now you made another finding that you haven’t told the jury about yet, with reference to the right-of-way.
“MR. McKOOL: Now, did the court sustain our objection as to that?
“THE COURT: I sustained the objection about him asking about that, being leading and suggestive.
“MR. McKOOL: Note our exception, Your Honor. Can we have a full bill on these, Your Honor?
“THE COURT: Yes.
“Q. You remember, Mr. Baker, that you made another finding with reference to the yielding of right-of-way.
Now, I want you to tell the jury what that was ?
“A. Like I say, these in the past, where there have been signals at the intersection where trains have been involved in accidents; we normally always say that the car failed to yield the right-of-way, because if the lights—
“Q. You have to have something to find that on, don’t you?
“A. Well, the lights working properly, then we say that normally the car should yield, hut of course,
I wasn’t there,
“Q. You found in this instance that it did not?
“A. Like I say, this is the way—
“Q. Well, you can answer that question. In this instance you found that it did not yield the right-of-way?
“A. Well, I presume it didn’t, it was in collision.
“Q. Well, that is what you found, wasn’t it?
“A. Yes, sir.”

Appellants, in their only point on appeal, earnestly contend that the admission of this testimony from Baker requires reversal of the judgment because (1) such testimony clearly invaded the province of the jury on the very issues to he answered by the jury; (2) that by admitting such testimony the contents of the police officer’s report were indirectly admitted into evidence; (3) that the officer’s conclusion and opinion concerning the failure of the deceased to yield the right-of-way affected all of the special issues concerning contributory negligence of Flores; and (4) that the admission of the testimony over timely and repeatedly objections is so highly prejudicial that appellants were denied a fair trial. We cannot agree with appellants in any of these contentions.

The record presented to us dealing specifically with appellants’ only complaint concerning the admissibility of officer Baker’s testimony concerning failure of the deceased to yield the right-of-way is far from satisfactory as to the question of sufficiency of the objections interposed by appellants’ counsel. Scattered over several pages of the statement of facts appear objections as to “opinion and conclusion” and “invade the province of the jury” hut just prior to the admission of the complained testimony appears the Court’s remark that he was sustaining the objection based upon the ground that it was “leading and suggestive”. Thereupon attorneys for appellants took exception and requested a “full hill” which the court granted hut which was not further developed. Nowhere in the record do we find objection to the testimony that it is not supported by pleadings. There were no pleadings before the court on the issue of right-of-way. Nowhere do we find an objection to the effect that the officer’s testimony was speculative and amounted to a presumption on his part rather than a statement of opinion. Nowhere do we find a motion to strike the testimony after it was given. However, we are of opinion that the testimony of the witness should not have been allowed to go to the jury. The court was correct in repeatedly refusing appel-lees’ counsel the right to introduce into evidence the police officer’s report. This report was hearsay and properly excluded. Texas Employers’ Ins. Ass’n v. Brannam, Tex. Civ.App., 245 S.W.2d 271; Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339; Ward v. Wallace, Tex.Civ.App., 175 S.W.2d 611. To permit the officer, though an expert, to testify as to his opinion concerning the failure to yield the right-of-way would be to allow him to express an opinion on a question of law or, in any event, a mixed question of law and fact. It is well established that a witness, even an expert, cannot testify as to his opinion of ultimate negligence or the actual cause of a calamity. Chuppe v. Gulf Iron Works, Tex.Civ.App., 306 S.W.2d 177; 2 McCormick & Ray, Tex.Law of Evidence, 2d. Ed., p. 281, § 1431. Also when carefully analyzed officer Baker’s testimony is lacking in probative force in that it is nothing more than a presumption and speculation on his part. Opinion evidence based on speculation or conjecture lacks probative value. 23 Tex.Jur.2d p. 619, § 414.

While we are of the opinion that the trial court probably fell into error in permitting the questioned testimony to go to the jury, we are equally of the opinion that when this record is reviewed, as a whole, the error complained of did not amount to such a denial of the rights of the appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. Error to be reversible must be deleterious as opposed to innocuous. Confining ourselves solely to the specific record here presented we hold that the error, if any was committed, was not reversible error within the meaning of Rule 434, T.R.C.P.

The doctrine known as- the rule of “presumed prejudice” under which any error of law committed in the trial of a case was presumed to be prejudicial no longer exists in Texas. Rules 434 and 503 of the Rules of Civil Procedure have modified the old concept of harmless error so as to abolish the doctrine of presumed prejudice and to cast upon the complaining party the burden of showing not only that error was committed but that the error resulted in his prejudice or probable injury, and that the error amounted to a denial of his rights and reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. makes the Appellate Court the judge of whether harm resulted from the error and in making this determination the court will consider the record as a whole. 4 Tex.Jur.2d pp. 549-551, § 932; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; Traders & General Ins. Co. v. White, Tex.Civ.App., 320 S.W.2d 702; Chadwick v. Glens Falls Ins. Co., Tex.Civ.App., 340 S.W.2d 501.

With these established rules in mind, we observe several reasons why appellants have not discharged their burden of demonstrating reversible error within the ambit of Rule 434, T.R.C.P. In the first place error in admitting or excluding evidence becomes immaterial where the case does not turn on the excluded or admitted evidence, that is, where it is not material and does not affect the verdict and judgment rendered. Benson v. Weaver, Tex.Civ.App., 250 S.W.2d 770; Gross v. Dallas Ry. & Term. Co., Tex.Civ.App., 131 S.W.2d 113; Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715. As stated above there were no pleadings on the issue of right-of-way; no issue was submitted to the jury on the question of right-of-way; no definition of the term “right-of-way” was given to the jury in the Court’s charge. All issues as to primary negligence and proximate cause were answered favorably to appellees.

The opinion of the witness Baker that the decedent failed to yield the right-of-way did not govern any of the issues submitted to the jury as to primary negligence of appellees. Such testimony related to the conduct on the part of the decedent and did not relate in any way to the conduct of the appellees. The judgment rendered in this case was the only judgment that could have been rendered based upon the jury verdict. Since the appellees were free from negligence, the improper admission of evidence as shown by this record is manifestly harmless. Cantu v. Haag, Tex.Civ.App., 297 S.W.2d 384; Rhodes v. Panhandle & S. F. Ry. Co., Tex.Civ.App., 243 S.W. 516; La Grone v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 189 S.W. 99; Green v. South Texas Coaches, Tex.Civ.App., 116 S.W.2d 799; Chronister v. City of San Antonio, Tex.Civ.App., 337 S.W.2d 223; Hartman v. Harder, Tex.Civ.App., 320 S.W.2d 555; Gross v. Dallas Ry. & Term.Co., Tex.Civ.App., 131 S.W.2d 113; 4 Tex. Jur.2d § 931, p. 546.

The entire record reveals ample evidence to support the various jury findings on the issues of primary negligence as well as contributory negligence other than the' testimony complained of by appellants. We find ourselves unable to agree with appellants’ contention that the complained of testimony was of such a nature as to permeate and poison the entire case against the appellants. Having given due consideration and careful study to all of appellants’ contentions presented under their one point of error, and having considered this record as a whole, we conclude that the error complained of was of such a nature as to be harmless and not reversible error. Rule 434, T.R.C.P.

Affirmed.