author: DICE, Commissioner.

text:
    Edward Lee ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36500.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.

      Mays & Mays, Fort Worth, Frank D. Coffey, Fort Worth, of counsel, for appellant.
    Doug Crouch, Dist. Atty., R. J. Adcock and Albert F. Fick, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault; the punishment, thirty years.

The facts, briefly stated, show that at approximately 9:25 o’clock, a. m., on the morning of January 21, 1963, two men, one of whom was armed with a pistol, entered a Handymarket store in Benbrook, Tarrant County, Texas, and robbed the store manager, Billy D. Little, of $564.17 in money. Appellant was identified by Little later in the day at a police line-up and also at the trial as one of the men who had robbed him. At 3 o’clock, p. m., on the day of the robbery, Officers Cardwell, Leath, and Durant, of the Fort Worth police department, after receiving information of the robbery, went to an apartment on the second floor of a building in the city of Fort Worth, where they knocked on the door and informed the occupants they were officers.

In a short time, appellant opened the door and was informed by the officers that they were looking for three suspects in the Ben-brook robbery. Appellant denied any knowledge of the robbery. Upon being told by the officers that they would like to talk to him, appellant stated: “Come on in.” The three officers then entered the apartment and proceeded to search it. In the search, a .32 automatic pistol was found in a desk drawer, together with some money including two rolls of pennies, and a .22 calibre pistol was found inside a trash sack. The two pistols were introduced in evidence by the state, over appellant’s objection, as state’s exhibits #1 and #2.

Little, the victim of the robbery, identified the .32 calibre pistol at the trial as being similar to the pistol which appellant .exhibited at the time of the robbery.

Appellant timely objected to the state’s testimony showing the search' of the apartment and to the introduction in evidence of the fruits thereof, on the ground that such was an illegal search and seizure, being without a search warrant.

Appellant’s sole contention on appeal is that the court erred in admitting state’s exhibits #1 and #2 in evidence, as they were fruits of an illegal search and seizure.

It is the state’s contention that although the officers did not have a search warrant, the search of the apartment was not illegal because appellant invited them into the apartment and they were not trespassers. In substance, it is the state’s position that appellant gave his consent to the search.

We are unable to agree that the evidence shows that appellant gave consent for the officers to search the apartment. Under the officers’ testimony, appellant invited them into the apartment after they stated that they wanted to talk to him. The invitation to the officers to enter the apartment to talk to appellant cannot be construed as an invitation or consent to search.

While this appears to be a case of first impression in this state, the conclusion reached herein is in line with the holding by the Supreme Court of the United States in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, that a waiver of constitutional immunity from unreasonable search and seizure could not be inferred from the acts of an accused in admitting police officers into his apartment in compliance wtih their request for an interview.

In The People of the State of New York v. Mace, 38 Misc.2d 533, 237 N.Y.S.2d 769, it was held that an invitation by an accused to detectives to come to his apartment to see certain memoranda, ostensibly to establish his innocence, would not warrant their seizing anything but contraband in open view, or conducting a general search of the apartment without his consent.

Although the officers in the present case who entered the apartment upon appellant’s invitation were not trespassers and had the right to seize articles in open view, they did not — under the facts presented — have the right to conduct a search of the apartment.

The cases relied upon by the state are not, under the facts here, controlling. In the cases cited there was either a consent to search or an oral confession which led to finding the property, or, where merely an invitation to enter was given, the officers did not search the premises but only seized that which was in open view.

The search of appellant’s apartment without a search warrant was an unreasonable search and seizure, in violation of Art. 1, Sec. 9, of the Constitution of this State, Vernons’ Ann.St, and of the Fourth Amendment to the Constitution of the United States. In admitting evidence of the search and the fruits thereof, the court erred. Art. 727a, Vernon’s Ann.C.C.P.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    J. O. PECK, Guardian and Next Friend for Mildred E. Peck, et al., Appellants, v. CENTURY CONCRETE PRODUCTS, INC., et al., Appellees.
    No. 16480.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1964.
    Rehearing Denied Feb. 28, 1964.

      Borden & Hand, Weatherford, Christopher & Bailey, Sheridan E. Taylor and M. Ward Bailey, Fort Worth, for appellants.
    Brown, Day & Craig and M. Hendricks Brown, Fort Worth, for appellees.
   LANGDON, Justice.

This is a personal injury suit arising out of a collision between a pickup truck driven by Oliver E. Peck, deceased, hereinafter referred to as Peck, and a tractor-trailer unit owned by Century Concrete Products, Inc., driven by Edmond O. Fletcher, hereinafter referred to as Fletcher. The collision occurred about one mile east of Weatherford, Texas on U. S. Highway 80 in the early morning hours of December 23, 1958. The pickup truck driven by Peck collided with the rear end of the tractor-trailer unit which had stalled partially on the highway. The weather was misty and foggy. Peck died from the injuries he received. A wife and five children survive him.

The jury answered all issues favorably to plaintiffs except special issues Nos. 20 and 21. In answer to special issue No. 20 the jury found Peck failed to keep a proper lookout for his own safety, and in answer to No. 21 that such failure was a proximate cause of the occurrence. The court overruled plaintiffs’ motion to disregard the findings of the jury in response to these issues and entered judgment that plaintiffs take nothing. We affirm.

The appellants by 22 separate points of error attack the two “lookout” issues answered adversely to them. The grounds are no evidence, insufficient evidence, immateriality, contrary to the evidence, and against the preponderance of the evidence either to support the submission thereof or the jury’s answers thereto. Other points are based on the court’s refusal to disregard the findings and because the issues assumed a duty on the part of Peck to foresee or anticipate the alleged negligent acts of Fletcher, that submission therefore amounted to a charge to that effect, and constituted a comment by the court on the weight of the evidence.

These and other points briefed by the appellants present one primary question to be resolved by this Court, namely, was there sufficient evidence to support the submission of and the jury’s answers to special issues Nos. 20 and 21.

In considering the appellants’ no evidence points of error this court must consider that evidence which viewed in its most favorable light supports the findings of the jury. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359; Dillard v. Griffin, Tex.Civ.App., 341 S.W.2d 696; Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429.

In reviewing the record from the standpoint most favorable to the jury findings we have concluded that under all of the circumstances the jury was justified in believing and finding that Peck failed to keep a proper lookout and that such failure was a proximate cause.

Ordinarily proper lookout is a question for the jury. Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

The record reflects that there were no witnesses to the accident itself. The only testimony relating to the accident or the scene thereof was that of Fletcher, Officer Tinsley of the Department of Public Safety, who investigated the accident, and L. L. Stroud, a motorist who came upon the scene of the accident shortly after it occurred.

The accident occurred on the northern portion of a four lane divided highway at a point where the road was on a slight upgrade toward the west and a slight downgrade toward the east. Fletcher’s truck had been going west on a two lane one way highway twenty-four feet wide with a shoulder on the right. As he proceeded west in this area the motor choked indicating that one of the saddle tanks was out of gas. He switched over to the other saddle tank. On switching over the truck cut off or choked out and Fletcher rolled to a stop, pulling as far as he could to the right. He finally came to a stop with a portion of the left rear end of his trailer on the far right of the highway. After his truck stopped there were approximately eighteen feet to the left of his vehicle open for westbound traffic. This included 12 feet in the inside westbound lane, two to four feet of the outside westbound lane ■partially occupied by the truck, and the median separating the west and eastbound lanes. The truck being disabled was entirely unexpected. Fletcher was there only .approximately a minute and a half trying to get his truck started before Peck hit Tiim from the rear. The force of Peck’s pickup hitting the approximately 15,000 to 20,000 pound Fletcher truck with its brakes ■on knocked it some sixteen to twenty-two feet. It sustained severe damage to the rear duals and rear bed. There was testimony that it was bowed by the impact of the collision.

After his truck stopped Fletcher was attempting to get it started. He would hit Tiis brakes to flash the rear lights for traffic approaching from the rear, the direction Peck came from.

There were eight or more red and yellow lights on the rear of Fletcher’s unit and two large reflectors.

The record is silent as to any evidence •indicating that Peck applied his brakes or attempted to turn to his left at any time prior to the collision in an effort to avoid it. Considering the gouges in the pavement made by some part underneath the pickup and other physical evidence at the scene, Peck did not observe the truck and trailer and thus made no effort to turn left or to stop his vehicle even up to the last moment before impact.

Prior to Peck’s collision with it, several vehicles proceeding in the same direction passed to the left of Fletcher’s unit, indicating that the drivers of such vehicles were able to and did see it and thus were able to safely pass to the left of it.

On the occasion of the collision it was very foggy and dark. The pavement was wet and slick. The center of the pickup struck just about the center of the two duals on the trailer. The pickup was traveling almost straight ahead at the time of collision.

Officer Tinsley traveled to the scene of the accident at about 20 to 30 miles per hour due to fog and the condition of pavement, although under favorable conditions he would have proceeded at a faster rate of speed.

The witness Stroud, proceeding in the same direction as Peck, was the first to arrive at the scene of the collision.

A pickup, which under the evidence the jury could believe was the one driven by Peck, passed the vehicle occupied and driven by Stroud at a time when Stroud was driving 50 to 55 miles per hour and was about 2 to 4 miles from the scene of the accident. The pickup was proceeding fast enough to pass and get out of Stroud’s view before Stroud came upon the accident and saw the pickup. No other vehicle passed Stroud after the pickup passed him and before Stroud came upon the scene of the collision. Stroud saw lights or reflectors on the vehicles involved in the collision when about 50 yards away as he approached the scene.

The severe damage and almost utter destruction of the pickup and the relative positions of the two vehicles shown by the photographs and coupled with the testimony of Officer Tinsley and others warrant the inference of great speed and improper lookout on the part of Peck. The testimony and photographs also reflect that the speedometer needle on the pickup was stopped and remained fixed at a point between 70 and 75 miles per hour.

Prior to the collision Fletcher had checked the lights and reflectors and all were clear and operating. The jury could deduct from the evidence that they were burning and operating properly before the actual impact.

The collision occurred during the early morning hours on December 23, 1958. Peck was returning from a Christmas party where alcoholic beverages were served. From the evidence the jury could find and believe that Peck had joined others in drinking.' A cap from a liquor bottle was found on the floor board of Peck’s vehicle after the collision.

It was within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. Austin Fire Ins. Co. v. Adams-Childers Co., Tex.Com.App., 246 S.W. 365.

The jury is the judge of the facts and circumstances proven and may draw reasonable inferences and deductions from the evidence adduced before it.

The contentions of appellants to the effect that submission of the issues in question assumed that Peck had a duty to anticipate or foresee the alleged negligent and unlawful acts of Fletcher and amounted to a charge by the court to that effect and constituted a comment by the court on the weight of the evidence are without merit.

While Peck was not required to anticipate negligent or unlawful conduct on the part of others, he was not entitled to close his eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Joe D. Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829.

The issues were submitted in the usual and acceptable form approved by the courts of this State. Every driver who uses the highways of this State is charged with the responsibility of maintaining a proper lookout for his own safety. The person of ordinary prudence in the exercise of ordinary care on a dark and foggy night driving on an unlighted pavement which was wet and slick, circumstances in existence at the time and place in question, would be more prudent than was Peck when his conduct is examined in the light of the evidence which was available to the jury and compared with the conduct of a person of ordinary prudence who exercises ordinary care. Seldom, if ever, may one predict with any certainty the dangers that a proper lookout will reveal. Certainly it is to be expected that stalled, parked or disabled vehicles may be parked on or near the pavement. These and many other obstacles, including livestock and vehicles in collision, must be anticipated by the prudent driver in the exercise of ordinary care.

If one could know in advance the location and nature of dangerous impediments which lay ahead of him as he proceeded down a highway, the maintenance of a proper lookout would not be so necessary and important. It is because we cannot possibly foresee or anticipate the dangers which may lie ahead that the law imposes a duty upon each of us to maintain a proper lookout in order that we may observe such dangers in time to stop, turn or take some other evasive action.

In the light of the entire record we have concluded that the findings of the jury are not against the great weight and preponderance of the evidence. To the contrary, we find the submission of the issues and the jury’s answers thereto are amply supported thereby. We have carefully examined each of appellants’ points of error, including those concerning foreseeability and causation and having concluded that each should be, the same are accordingly overruled.

In view of our disposition of this case we deem it inadvisable to lengthen our opinion by further discussion of appellants’ points or by any discussion of appellees’ counterpoints.

The judgment of the trial court is accordingly affirmed.

Affirmed.


author: BARROW, Justice.

text:
    ALCO OIL AND GAS CORPORATION, Appellant, v. CONCORD OIL COMPANY, Appellee.
    No. 14169.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1964.
    Rehearing Denied Deb. 5, 1964.

      Cox, Smith & Smith, San Antonio, for appellant.
    Dodson, Duke & Branch, San Antonio, for appellee.
   BARROW, Justice.

Aleo Oil and Gas Corporation filed this suit to recover from Concord Oil Company the sum of $23,000 under the terms of a written contract between the said parties, bearing date of February 8, 1961. Concord counterclaimed for damages for breach of this contract. After a jury trial, the trial court entered judgment that Aleo take nothing by its suit and that Concord recover the sum of $23,000 on its cross-action. Aleo has perfected this appeal.

The appeal is controlled by the construction of the written contract. This contract was written by Concord and relates to the assignment to Aleo by Concord of a riverbed lease of 220 acres in the Colorado River in Colorado County, Texas. On December IS, 1959, Concord was granted a lease from the State for a primary term of five years. The contract of February 8, 1961, provided generally for the assignment of this lease to Aleo for a cash consideration of $23,000 to be paid by Aleo, and the reservation by Concord of a one-fourth interest after the payment of acquisition and drilling costs. A well cannot be drilled in the riverbed and a lessee is given the right of eminent domain by State law to secure a surface drilling site on property adjoining the riverbed. Under the contract Concord agreed to secure the drill site.

Alco’s claim is based on the following covenant contained in paragraph V of the contract: “If we (Concord) are unable to secure and assign to you such surface location by June 1, 1961, after a bona fide good faith attempt on our part to do so, you shall be relieved from all further liability hereunder, and upon tender of reassignment of the above described lease, Concord firmly agrees and obligates itself to refund to you (Aleo) the cash consideration theretofore paid by you to us under the terms of this agreement, and thereafter we shall both be relieved from further liability under the terms hereof.”

It is undisputed that Concord did not secure the drill site until June 6, 1961. On June 1, 1961, Aleo notified Concord that it was terminating the contract, and on June 7, 1961, the lease was reassigned to Concord by Aleo. Concord refused to refund the $23,000 cash consideration paid to it by Aleo, and this suit was filed by Aleo to recover same. Concord asserts that time was not of the essence of the contract and that it complied with the contract by securing the drill site on June 6, 1961. Concord further alleged that in any event Aleo was es-topped by its course of conduct to assert that time was of the essence. In its cross-action, Concord alleged that the contract was breached by Alco’s refusal to drill the well after being furnished the drill site on June 6, and that Aleo was estopped to assert that time was of the essence.

The jury returned a verdict substantially as follows: (1) That the parties did not intend that time should be of the essence of the agreement of February 8, 1961; (2) that Aleo, by the course of conduct of its officers and agents between February 8, 1961, and June 1, 1961, led Concord reasonably to believe that Concord’s failure to have the drill site by June 1, would not cause Aleo to attempt to terminate the agreement on June 1; (3) that Concord relied upon such conduct of Aleo to the extent that it in good faith believed no action would be taken by Aleo to attempt to terminate the agreement on June 1, because of Concord’s failure to secure the drill site; (4) that Concord could and would have secured a drill site by June 1, but for this belief; (5) that $23,000 would be the reasonable market value on August 1, 1961, of Concord’s one-fourth interest in the lease if Aleo had drilled and completed the well by August 1, 1961.

Aleo urges by this appeal that time was of the essence as a matter of law under the provisions of the contract. Aleo also urges that all the essential elements of estoppel were neither pleaded, raised by the evidence, nor properly submitted in the court’s charge to the jury. Concord, by a counterpoint, urges that Aleo did not timely tender the reassignment of the lease under the terms of the contract.

Neither party has asserted that the written contract is ambiguous. It is therefore our duty to construe the contract as an entire instrument in order to determine its effect and meaning. Parol evidence is not admissible to aid in this construction. Steeger v. Beard Drilling, Inc., Tex., 371 S.W.2d 684; Baker v. Fell, 135 Tex. 375, 144 S.W.2d 255. Such a construction of the contract demonstrates that time was of the essence of the contract.

The last numbered paragraph of the contract provides: “This agreement shall inure to the benefit of, and shall be binding upon, Aleo Oil and Gas Corporation and Concord Oil Company and their respective successors and assigns, and it is understood that time is of the essence hereof.’' (Emphasis ours.) There is nothing in the contract which is inconsistent or casts any doubt on this specific agreement “that time is of the essence” thereof. Cf. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555.

The contract consists of five single-spaced typewritten pages which detail all covenants between said parties. All occurrences called for by the contract are limited by certain times and specific dates. The contract contemplates that Concord might not be able to negotiate with the adjoining landowners for a drill site and provides for the institution of condemnation proceedings by Concord. There is no provision of the contract which is inconsistent with the covenant that Concord must secure the drill site by June 1, 1961, or Aleo would be relieved of all liability under the contract. Under the express agreement of the parties, time was of the essence. There was no issue of fact raised as to whether or not time was of the essence, and the trial court erred in not disregarding the jury’s answer to Question No. 1. Herber v. Sanders, Tex.Civ.App., 336 S.W.2d 783; Texas Associates v. Joe Bland Const. Co., Tex.Civ. App., 222 S.W.2d 413; 13 Tex.Jur.2d, Contracts, § 287. The trial court further erred in not holding, as a matter of law, that Concord failed to comply with the contract when it did not deliver the drill site by June 1, 1961.

Concord alleged as a defense to AIco’s claim and as an alternative ground for its own cross-action, that the conduct of AIco’s officers and agents, between Feb. 8, 1961, and June 1, 1961, was such that it led Concord to believe that Aleo would not insist upon the provision of the contract requiring Concord to furnish a drill site by June 1, and therefore that Aleo should be estopped to claim this breach. It is well settled that estoppel is defensive in character and does not create a cause of action. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660; Cotton Belt State Bank v. Roy H. Hatcheries, Inc., Tex.Civ.App., 351 S.W.2d 325; Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry & Dye Works, Tex.Civ.App., 85 S.W.2d 937; 22 Tex.Jur.2d, Estoppel, § 2. Therefore, Concord’s plea of estoppel is inapplicable to support its cross-action for damages for breach of contract.

Aleo asserts that Concord’s defensive plea of estoppel was not established in that all the essential elements of estoppel are not present in this case. It is seen that Concord does not rely on any specific misrepresentation or concealment. It charges, however, that the general course of conduct of AIco’s officers and agents led Concord to believe that Aleo would not terminate the contract so long as Concord was exercising a good faith attempt to secure the drill site.

It is well settled that in order to constitute an equitable estoppel or an es-toppel in pais, there must exist: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) to a party without knowledge, or the means of knowledge, of those facts; (4) with the intention that it should be acted on; and (5) the party to whom it was made must have relied or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Kelly v. Heimer, Tex.Civ.App., 312 S.W.2d 430; Terrell Hills Baptist Church v. Pawel, Tex.Civ.App., 286 S.W.2d 204; 22 Tex.Jur.2d, Estoppel, § 8. It is recognized that silence, where the party is under a duty to speak, may amount to a concealment. Humble Oil & Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355; Johnson v. Sovereign Camp W. O. W., 125 Tex. 329, 83 S.W.2d 605; 31 C.J.S. Estoppel § 87. For estoppel to be based on silence or inaction, there must be some element of turpitude or negligence connected with the silence or inaction by which the other party is misled to his injury. Humble Oil & Refining Co. v. Trapp, Tex.Civ.App., 194 S.W.2d 781, writ ref.

The course of conduct relied upon by Concord consists of several letters and telephone calls between two officials of Aleo and the President of Concord after the execution of the contract and before June 1, 1961. It is seen that a substantial part of this evidence has no connection with the obtaining of the drill site by Concord, but relates to subsequent negotiations between the parties in regard to a proposed turnkey contract for Concord to drill the well for Aleo for an agreed price. There were many negotiations relative to the various items which would form the basis for the agreed price. Likewise, there were several exchanges of correspondence relative to a railroad crossing agreement, which have no relationship to acquisition of the drill site. All evidence which has any relevancy whatsoever to the acquisition of the drill site clearly shows a knowledge by Concord of the covenant for Concord to secure the drill site by June 1st.

It is undisputed that Concord encountered considerable opposition from the adjoining landowners and their lessee in attempting to secure the drill site. After negotiations were unsuccessful, Concord instituted condemnation proceedings on March 6, 1961, as provided in the contract. A technical error was discovered by the landowners and it was necessary to refile same. The landowners secured a restraining order which prevented a hearing on this second petition, on April 20th. Another petition was filed and set for May 31st. This hearing was restrained on May 30th, but the restraining order was dismissed prior to the time of hearing on the 31st. The condemnation hearing began on the 31st but the commissioners recessed same until June 5th, at which time an award was made. Concord posted the necessary bond to secure the drill site on June 6th.

Concord kept Aleo advised of all these delays in the condemnation proceedings. It is seen from the letters introduced in evidence and the testimony of Concord’s president, that it was contemplated by Concord, until it was restrained on May 30th, that it would be able to secure the drill site by June 1st. There was testimony by Concord’s president, that around the middle of May he advised the general attorney of Aleo that Concord would like a thirty-day extension and the attorney promised to advise if an extension was not satisfactory. There is no contention by Concord that the contract was modified or extended, but it is asserted that Alco’s silence raised the issue of estoppel. Concord does not contend that this silence caused it to change its position in any manner.

The estoppel issue narrows to this point — Was there a duty raised by Concord’s difficulty in carrying out its covenant to secure the drill site which required Aleo to advise Concord that Aleo would insist on the termination date provided in the written contract? We think not. There is nothing in the record which indicates that either Aleo or Concord was not aware of the specific terms of the contract and attempting to comply with same. Concord asserts that at any time it could have paid the landowners’ demands and secured a drill site. Concord knew the terms of the contract and proceeded at its own risk. Concord complied with that part of the contract which called for it to use good faith in attempting to secure the drill site. It did not comply with the further provision which required it to secure same by June 1, 1961. Aleo refused to accept same after that date. The record shows that until May 30th Concord believed and informed Aleo that it would secure the drill site by June 1st. Nothing occurred between May 30th and June 1 which would estop Aleo. Concord’s evidence shows only that Alco’s general attorney was “non-committal” when Concord advised Aleo that the restraining order of May 30th would delay its performance a few days.

The fact that Concord accepted part of the cash consideration from Aleo a few days after it was due on April 1 would not require Aleo to waive this unrelated breach by Concord. Likewise, the fact that Concord spent more money in securing the drill site than was originally contemplated would not estop Aleo from asserting its contractual right to terminate the contract.

It is therefore our opinion that there is no evidence of a false representation or concealment of material facts by Aleo which was relied upon by Concord. Concord, therefore, failed to establish its defense of estoppel and the trial court erred in not disregarding these findings contained in Questions Nos. 2, 3 and 4 of the charge.

Concord asserts that, in any event, Aleo should not recover the cash consideration paid by it, as Aleo did not tender the reassignment until June 7th. It is undisputed that on June 1, Aleo notified Concord by telephone and telegram that it was electing to terminate the contract since Concord had not secured the drill site, as required by the contract. That was all that the contract required. The contract further provided that “upon tender of the reassignment,” the cash consideration would be refunded. It is seen that there is no time given for this reassignment to be accomplished, although under the plain provisions of the contract it would be subsequent to June 1st. It is not contended by Concord and it cannot be said that June 7th is an unreasonable time to tender this reassignment.

The judgment of the trial court is therefore reversed and here rendered that Aleo recover from Concord the sum of $23,000 with interest from June 7, 1961, and that Concord take nothing by its cross-action.


author: WILLIAMS, Justice.

text:
    Jack Leroy MILLER, Appellant. v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16336.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1964.
    Rehearing Denied Feb. 21, 1964.

      J. M. Deavenport, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appel-lee.
    Waggoner Carr, Atty. Gen., and Fred D. Ward, Asst. Atty. Gen., Austin, amicus • curiae.
   WILLIAMS, Justice.

The former opinion rendered in this case is withdrawn and the following substituted therefor.

This is a driver’s license suspension case. Pursuant to authority of Art. 6687b, Sec. 22(a), Vernon’s Ann.Civ.St., the Texas Department of Public Safety (hereinafter called Department) caused Jack Leroy Miller to appear before a justice of the peace of Dallas County, Texas, for a hearing to determine whether Miller was an habitual traffic violator within the meaning of Art. 6687b, Sec. 22(b), Par. 4, V.A.C.S. Following an affirmative finding by the justice of the peace the Department suspended Miller’s driver’s license for a period of six months. Art. 6687b, Sec. 22(a) and Sec. 23, V.A.C.S. From this order Miller appealed to the County Court at Law No. 1, Dallas County, Texas, by authority of Art. 6687b, Sec. 22(c), V.A.C.S. In his petition on appeal Miller denied that he was an habitual violator and prayed for restoration of his Texas operator’s license. By answer and cross-action the Department alleged that Miller had been convicted of five moving traffic violations occurring within a twelve months’ period of time and that such fact authorized the issuance of the suspension order. Par. 4, Sec. 22(b), Art. 6687b, V.A.C.S. Thereafter the Department filed its verified motion for summary judgment, supported by certified copies of five notices of conviction from the Clerk of the Corporation Court of the City of Dallas, Texas. Each of these certified copies was entitled, “Notice of Conviction”, and set forth Miller’s name, address and driver’s license number; the offense and the date committed together with the cause number in the particular court. Each notice set forth the “date convicted” and following the word “penalty” is a line upon which appears different amounts of money.

Miller also filed a motion for summary judgment and an answer in response to the Department’s motion. In his verified answer Miller contended that (1) the certified notices of conviction- show upon their face that they cover a period in excess of a consecutive twelve months’ period and therefore do not comply with Art. 6687b, Sec. 22(b), Par. 4, V.A.C.S.; (2) that he was not legally convicted in Cause No. 46656-B on August 18, 1961, being one of the convictions relied upon by the Department, because he did not appear in open court and plead guilty, nor was he tried in open court, and was not there either in person or by attorney and did not forfeit bail; (3) that he was not legally convicted in Cause No. 25388-B on March 27, 1962, being one of the convictions relied upon by the Department, in that he did not appear in open court or plead guilty, nor was he tried in open court either in person or by his attorney, and did not forfeit bail; (4) that in Cause No. 2447-B, a purported conviction being for the offense of “driving without lights’’ on October 8, 1961, he contends that same was not and is not a moving violation as required under Sec. 22(b), Par. 4, of Art. 6687b, V.A.C.S. In further opposition to the Department’s motion for summary judgment Miller attaches his affidavit in which he says that he did not appear in open court and did not plead guilty, either in person or by attorney, in Cause No. 46656-B in the Corporation Court of Dallas on August 18, 1961; that he did not deposit any bond or collateral to secure his appearance in court and has not forfeited any bond or collateral. He also says that on March 27, 1962, in Cause No. 25388-B in the Corporation Court of Dallas, Texas he did not appear in open court and did not plead guilty nor did he receive a trial, either in person or by an attorney and did not deposit or forfeit bail. Miller also contends, in his affidavit, that the purported notices of conviction relied upon by the Department are not made in compliance with Art. 6701d, Sec. 152(c), V.A.C.S.

Following hearing the trial court sustained the motion for summary judgment of the Department and from such judgment Miller appeals 'tipon three points of error. We have concluded that two of appellant’s points are well taken and that this cause must be reversed and remanded.

At the outset appellee has requested us not to consider appellant’s response to its motion for summary judgment because said answer was not filed until the date of hearing of the motion for summary judgment and therefore comes too late under Rule 166-A(c), Texas Rules of Civil Procedure. The record reveals that appellant filed no answer to controvert appellee’s motion for summary judgment until the date set for hearing. While it is true that Rule 166-A(c), T.R.C.P. provides that “[t]he adverse party prior to the day of hearing may serve opposing affidavits”, we held in the case of Brown v. Aetna Casualty & Surety Co., Tex.Civ.App., 366 S.W.2d 673, wr. ref. n. r. e., that such provision of the rule was not mandatory and that the court’s action in allowing the answer to be filed on the date of hearing was within the trial court’s discretion. We find no abuse of discretion on the part of the court in this case and therefore overrule appellee’s motion.

Appellant’s first point on appeal that: “The court erred in granting defendant’s motion for summary judgment” is too general and does not meet the requirements of Rule 418, T.R.C.P., relating to briefing. White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S.W.2d 793; Little v. Employers Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517. However, as we said in Wyche v. Noah, Tex. Civ.App., 288 S.W.2d 866, while the point may be too general this court will discuss the grounds as we understand them upon which appellant apparently relies to support his appeal, as disclosed in the statements and arguments accompanying this point on appeal. Covington v. City of Denison, Tex, Civ.App., 369 S.W.2d 824. As we understand appellant’s position in this point and especially when taken in connection with appellant’s third point of error, to the effect that the court erred in considering two of the alleged violations as “convictions”, it is that appropriate issues of fact were presented and he should have been entitled to a trial de novo. It is elementary that the purpose of a summary judgment proceeding is to determine the existence or nonexistence of an issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The question presented here, by appellant’s Points 1 and 3, therefore, is whether appellant’s answer to appellee’s motion creates issues of fact which should have been determined by a court or jury in a trial de novo.

The issue of the type of appeal allowed by Art. 6687b, Sec. 22(c), V.A.C.S., is brought into sharp focus by this record. The Department contends that the substantial evidence rule governs the appeal from an administrative order and that appellant is not entitled to a trial de novo. Appellant points to the plain and express appeal provisions of the statute which provides that, on appeal, said court shall determine the issues in such cause upon a trial de novo as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Moreover, says the statute, under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.

Appellee, by advancing the theory of substantial evidence rule and denying the right of appellant to a trial de novo impliedly challenges the constitutionality of the provision of Art. 6687b, Sec. 22(c), V.A.C.S., relating to appeals from the administrative order. The only cases relied upon by appellee specifically holding that the substantial evidence rule, and not a trial de novo, applies in appeals of this nature are Department of Public Safety v. Robertson, Tex.Civ.App., 203 S.W.2d 950, and Texas Department of Public Safety v. Azar, Tex.Civ.App., 274 S.W.2d 911, wr. ref. n. r. e., but each of these cases was decided prior to the 1959 amendment, referred to above, which expressly provides for trial de novo and the unequivocal denial of the substantial evidence rule.

The Department also relies upon such cases as Chemical Bank & Trust Co. v. Falkner, Tex., 369 S.W.2d 427; Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; and Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699. None of these cases deal with the specific statute under consideration here but are merely authority for the proposition that the Legislature has no authority to provide for a trial de novo in an appeal from a purely administrative order which deals with legislative functions as opposed to judicial or quasi-judicial functions. This distinction was clearly developed by the Supreme Court in Chemical Bank & Trust Co. v. Falkner, supra, which dealt with a statute governing the issuance of bank charters which named five requirements, all of which must be determined favorably by the State Banking Board before a charter may be issued by the Commissioner of Banking. One of these requirements is that “[a] public necessity exists for the proposed bank”, Art. 342-305, Banking Code, V.A.C.S. The Supreme Court held that this requirement is purely legislative in its nature, therefore a court could not determine in a trial de novo that “[a] public necessity exists for the proposed bank”. For a court to do so would constitute an encroachment by the judicial department of our government upon the prerogatives of the legislative department, which is not permissible since our departments of government are separate and independent of each other. The Supreme Court did not overrule, but merely distinguished the holdings in State Board of Insurance v. Professional & Business Men’s Ins. Co., Tex.Civ.App., 359 S.W.2d 312, and Key Western Life Ins. Co. v. State Board of Insurance, Tex., 350 S.W.2d 839, in both of which cases a provision for a de novo trial on appeal was held not to be violative of the constitution. As Justice Smith pointed out in his opinion in Key Western Life Insurance Company v. State Board of Insurance, supra, a correct determination of the question of constitutionality of the act must involve a decision of whether the administrative act is a “judicial function” or a “legislative function”. He points out that there is a distinction between the types of decisions rendered by different administrative agencies. For example, some agencies perform judicial or quasi-judicial functions while others exercise powers which are essentially legislative. In the first instance, there may be a legislative delegation to a court for a de novo trial while in the second instance the legislature has no authority to deprive the administrative agency of its legislative power.

This brings us directly to the question of whether the administrative hearing in this case is judicial or quasi-judicial in nature or whether it is purely legislative. We are of the opinion that the administrative determination of whether a person is an habitual violator within the meaning of Par. 4. of Sec. 22(b), Art. 6687b, V.A.C.S. is judicial in nature. To determine whether one is an habitual violator of the traffic law the administrative agency, the justice of the peace in this case, was required to make a judicial decision rather than one involving more questions of policy which would be legislative in character. This being so, the legislature was fully authorized to provide for a trial de novo and to expressly prohibit the use of the substantial evidence rule when the case reached the County Court at Law.

While not directly passing upon the question of the constitutionality vel non of Sec. 22(c), Art. 6687b, V.A.C.S., the Supreme Court in the recent case of Texas Department of Pttblic Safety v. King, Tex., 366 S.W.2d 215, impliedly held that the de novo provision of the statute was valid. It was there held that on appeal pursuant to Sec. 22(c) the guilt or innocence of the licensee would be determined by the court or jury. Justice Steakley, speaking for the Supreme Court in that case, said that a license seeking the benefits of the appeal provisions of Sec. 22(c) had the right to have the appeal court determine the issues in such cause instead of the Department and that such cause shall be tried as if there had been no prior hearing in the matter of suspension. See also Williams v. Texas Department of Public Safety, Tex.Civ.App., 371 S.W.2d 747, dealing with the appeals provision of Sec. 22(c). We conclude, therefore, that Sec. 22(c) of Art. 6687b, V.A.C.S. is constitutional and valid so that appellant in this case was entitled to a trial de novo in a County Court at law and that in such hearing the substantial evidence rule does not apply.

We turn now to a consideration of whether or not issues of fact were raised by appellant’s answer and affidavit in opposition to appellee’s motion for summary judgment. Whether appellant was really an habitual violator within the meaning of the statute depends upon the validity of the convictions alleged by the Department. Appellee contends that the notices of conviction relied upon by it clearly demonstrate that appellant was legally convicted of five offenses within the meaning of the statute. Appellant says that the notices are insufficient and do not meet the requirements of the law and furthermore he presents facts to demonstrate that such convictions were illegal and therefore insufficient to form the basis of his driver’s license suspension.

We agree with appellant that the notices of conviction are insufficient and do not comply with the requirements of Art. 6701d, Sec. 152(c), VA.C.S. That statute expressly states that the abstract of conviction must be made upon a form furnished by the Department and shall include the name and address of the party charged, the number, if any, of the operator’s license, the registration number of the vehicle involved, the nature of the offense, the date of the hearing, the plea, the judgment, or whether bail forfeited and the amount of the fine or forfeiture as the case may be. (Emphasis supplied). The instruments attached to appellee’s motion for summary judgment do not reveal any plea made by the accused nor does it reveal any judgment of the court nor whether bail was forfeited. The instruments do not show whether a fine was paid but merely recite “Penalty”, followed by figures. There is no statement that the accused appeared in court and entered a plea of guilty or not guilty nor is there any showing that the fine was paid by the accused or paid by anyone acting on his behalf.

If it is the contention of appellee that appellant entered a plea of guilty the provisions of Art. 518, Vernon’s Ann.C.C.P. are not satisfied. There it is provided that a plea of guilty in a misdemeanor case maybe made either by the defendant or his counsel in open court. Art. 580 of Vernon’s Ann.C.C.P. provides that in all prosecutions for misdemeanors when the punishment is imprisonment in jail the defendant must be personally present, but Art. 581, Vernon’s Ann.C.C.P. provides that in “other misdemeanor cases” the defendant may, by consent of the state’s attorney, appear by counsel and the trial may proceed without his personal presence. While Art. 11 of Vernon’s Ann.C.C.P. permits the defendant in a criminal prosecution to waive any rights secured him by law except the right of trial by jury in a felony case, we find no evidence or contention of waiver in this case, and the affidavit of appellant would negative the idea of waiver of appearance either in person or by attorney. See also Texas Department of Public Safety v. Williams, Tex.Civ.App., 356 S.W.2d 848.

This is an appeal from a summary judgment and in reviewing the judgment we cannot indulge any presumption in favor of the trial court’s action. We must view the evidence in the light most favorable to the appellant and resolve all conflicts in his favor. Torres v. Ohio Casualty Ins. Co., Tex.Civ.App., 296 S.W.2d 561; Schepps v. American District Telegraph Co. of Texas, Tex.Civ.App., 286 S.W.2d 684; Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Accordingly, we find that the record presents issues of fact that should have been submitted to the court or jury in a trial de novo.

We cannot agree with appellant’s second point wherein he contends that the offense “driving without lights” did not constitute a moving violation in contemplation of Art. 6687b, Sec. 22(b) V.A.C.S. We think that Art. 6701d, Sec. 108(a) and Sec. 143, V.A.C.S. sufficiently define it to he a misdemeanor for a person to drive or move a vehicle at certain times without the same being equipped with sufficient lights to render the vehicle discernible.

Neither can we agree with appellant’s contention that the dates of conviction of the various offenses named against him extend for more than one year and therefore are not sufficient to come within the statute. The statute, Art. 6687b, Sec. 22(b), par. 4, V.A.C.S., authorizes the Department to suspend the license based upon four or more convictions arising out of different transactions in a consecutive period of twelve months. (Emphasis added). The number of transactions within the one-year period, and not the final convictions therefor, is controlling. Texas Department of Public Safety v. King, Tex., 366 S.W.2d 215.

The judgment of the trial court is reversed and remanded for a trial de novo as provided by statute.

Reversed and remanded.

       Art. 6687b, V.A.C.S.:
      “(c) Any licensee who is not willing and does not consent to abide by the final ruling or decision of the Department suspending said license, and whose license has been suspended under or by reason of any of the provisions set forth in sub-paragraphs “3,” “4,” “5,” “8,” and “9,” under subsection (b) immediately above, may, within thirty (30) days after the date of receipt of notice of the suspension of such license from the Department, bring suit in the county court, or county court at law, of his residence to vacate and set aside said final ruling and decision suspending said license, which suit shall be either before the court or a jury at the election of the licensee, and said court shall, in either event, determine the issues in such cause, instead of the Department, upon a trial de novo, and shall be tried the same as if there had been no prior hearing on the matter of suspension of said license and in the same manner as a trial in the county court on appeal from the justice court, and the rights of the parties thereto shall be determined by the court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.”


author: BATEMAN, Justice.

text:
    Cornelia HENSLEE et al., Appellants, v. STATE of Texas and County of Dallas, Appellees.
    No. 16341.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1963.
    Rehearing Denied Feb. 21, 1964.

      McKool & McKool, Dallas, for appellants.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Ted Z. Robertson, Don R. Stodghill and Leonard E. Choate, Asst. Dist. Attys., Dallas, for appellees.
    Gordon R. Wynne, Wills Point, Clyde Elliott, Jr., Canton, and Tobolowsky, Hartt, Schlinger & Blalock, Dallas, amici curiae.
   BATEMAN, Justice.

In this condemnation case the award of the commissioners was $18,250, which, having been paid into court, was withdrawn by appellants pursuant to the provisions of Article 3268, Vernon’s Ann.Tex.Civ.St., prior to the trial in the county court. In that trial the jury found the value of the condemned land to be $14,450. The judgment of the county court awarded to the condemnors, the State of Texas and County of Dallas, the land in question and judgment for $3,800, the excess of the commissioners’ award over the verdict.

Appellees move to dismiss the appeal because the appellants “appropriated” $3,800 in excess of the county court’s judgment, have therefore accepted the benefits of that judgment and are now estopped to prosecute an appeal therefrom. They rely on Latimer v. State, Tex.Civ.App., 328 S.W.2d 242, err. ref. n. r. e., wherein, after the trial in the county court and the perfection of the appeal therefrom, the condemnor tendered to the landowners, and the landowners accepted, the amount of the judgment in the county court. The appeal was dismissed on the ground that the landowners could not claim that the judgment was right by accepting the benefits thereof and also that it was wrong by appealing therefrom. Here, however, the withdrawal was of the amount of the commissioners’ award and was made before the case was tried in the county court. This was fully authorized by Article 3268, V.A.T.S., and the mere circumstance that the amount withdrawn exceeded the amount of the judgment would not estop the landowners from prosecuting their appeal. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93. Appellees say alternatively that we should require a supersedeas bond as a condition precedent to the appeal, expressing great anxiety over the collectibility of their judgment for the $3,800, but we find no authority for such a requirement. Appellants had the option to suspend execution under the judgment. Rule 364, Vernon’s Texas Rules of Civil Procedure. They chose not to do so.

Appellees also move to dismiss the appeal because the appeal bond is executed by only one of the three appellants as a principal. The two appellants who did not sign the appeal bond have not perfected their appeal and are hence appellants here in name only.

Appellees also move to dismiss the appeal because the appeal bond is payable only to the State of Texas and omits as an obligee the County of Dallas and also because it is in a penal sum of only $250, whereas the costs shown by the transcript total $308.90. These defects are in our opinion informalities within the purview of Rule 404, Vernon’s Texas R.C.P. and, not having been included in any motion filed in this court within thirty days after the filing of the transcript, are waived. Conlee v. Burton, Tex.Civ.App., 188 S.W.2d 713, 720, no wr. hist.; Pfeffer v. Meissner, Tex.Civ.App., 286 S.W.2d 241, 251, err. ref. n. r. e.

The motion to dismiss the appeal is overruled.

Appellees also urge us to strike from the record and not consider Exhibit “A” attached to appellants’ brief. This exhibit is a certified copy of an ordinance of the City of Irving (in which city the subject property is situated) changing the zoning, not of the subject property, but of property across the street from it. This motion is sustained. The copy is not a part of the record of the trial of the case and may not therefore be considered by us. 3 Tex.Jur. 426, § 304, and cases cited therein; Rule 371, Vernon’s Texas R.C.P.

On the merits of the appeal there is really only one main question to be determined by us, presented by appellants’ first thirteen points of error on appeal, and that is whether the trial court erred in withdrawing from consideration by the jury the testimony of the expert witness Roy Eastus as to the market value of the subject property and four of the five comparable sales offered by Eastus in his testimony. We have concluded, under the facts of this particular case, that no such error was shown and that the judgment should be affirmed.

The testimony of this witness, whose qualifications as an expert on values are not questioned, may be summarized as follows : 56,616 square feet were condemned, of which 35,016 square feet fronting on Loop 12 were valued by him at $1 per square foot, or $35,016. This left 21,600 square feet fronting on Fleming Avenue, a short street north of and parallel to Loop 12, which he valued at 25 cents per square foot or $5,400. Loop 12 is one of the best thoroughfares through Irving. In arriving at his appraisal he took into consideration the facts that the State Highway Department had made a traffic count of 10,830 in a twenty-four hour period in 1961, and the population growth of Irving, which was one of the fastest growing cities in Texas, growing at a rate of 4,500 to 5,000 per year. The zoning of this property was “A”, residential. It was zoned “A” at the-time the property came into the City of Irving and so far as he knows there has never been any application made to change the zoning. (It was stipulated at the trial that the zoning was not changed on the day of taking and that no application for a change had been made up to the time of trial nearly two years later.) In arriving at his evaluation he took into consideration five comparable sales within the area as follows:

1. Walter R. Harvy and wife to John R. Slaughter, Jr., October 3, 1958; 8,125 square feet located on Loop 12 about 300 feet south and on the opposite side of the street from the subject property; zoned “G” (meaning that it could be used for any type of local business); sold for $1 per square foot, or $8,125.

2. Estate of E. H. Mahan to Edward and Effie Cox, March 12, 1957; approximately 24,000 square feet located at Edgewood and Loop 12; no improvements; zoned “G”, which permitted it to be used for any commercial use; sold for $26,000 or $1.10 per square foot.

3. Ralph S. Tennell and wife to James M. Parks, January 16, 1959; 11,500 square feet located at 319 Fleming Street, approximately 500 feet north of subject property; improved with a small 4-room frame house with closed in back porch and bath and garage, all in very poor condition. The property was zoned “A” for residential use. It sold for $7,000, of which the witness allocated $4,000 to improvements and $3,000 to land, making the land valued at approximately 26 cents a square foot.

4. G. C. Braddy and wife to Humble Oil & Refining Company, December 31, 1957; approximately 12,800 square feet at the northeast corner of 6th Street and Murphy Road, between five and seven blocks west of the subject property; no improvements; zoned “G”; sold for $17,500 or $1.37 per square foot.

5. Cleatus Hampton Rattan and Lena M. Rattan to Tremarko Corporation, September 12, 1956; 23,500 square feet at the southwest corner of Irving Boulevard and Murphy Road, situated five to seven blocks from the subject property; no improvements ; zoned “H”; purchased for a filling station site for $47,000, or $2 per square foot. He said he considered a filling station site comparable to subject property, and a property zoned “H” comparable to a residential property.

The witness Eastus further testified: The owners could build on the subject property but under the present zoning could only build a residence. He is familiar with Ordinance No. 431, which is a “set-back resolution of the City of Irving”, and with the fact that there was a 180-foot set-back from the center of the street, but that it was their property and it is still their property; they still pay taxes on it; they have an opportunity to go in there and apply for a building permit which he believes will be granted, which would mean that a building would have to set back about 93 feet from the edge of the subject property. His valuation of part of the property taken at $1 per square foot would make the property worth forty-three thousand, five hundred some odd dollars per acre, since there are 43,560 square feet in an acre. He does not think it important to bring to the jury sales of residential property on Loop 12 because he does not consider this property as such. He appraises property as of the day of taking and not some conjectural theory in the future, but “she could use her property.” With respect to the Harvy to Slaughter sale in 1958, the property was zoned “G”, commercial, and he doesn’t think it has that 180-foot set-back; he thinks that set-back has already been put to use, and he understands the property was reposs°essed by the bank. The Mahan to Cox sale was of property zoned “G”, which is commercial zoning, was an odd-shaped lot fronting on three streets. Tremarko Corporation was a purchasing agent for Gulf Refinery. If oil companies want corners for service station sites they will usually pay a little more to get them, but such sales are comparable in many ways. The property sold by Braddy to Humble is across the street from a junior high school, an apartment and a proposed shopping center site. He based his $1 per square foot on these sales, “as part of my make-up.” In talking to a willing buyer, if he is a smart buyer, they would talk about the potential of this property, which is great, and he would buy it on that account, knowing he could get the benefit. He does not know of a single sale of residential zoned property in that block that has sold for $1 a square foot, or 75 cents a square foot or 50 cents a square foot. He doesn’t think there is any sale in there to amount to anything; if there were, there were very few. It is a technique, but not the best technique, to base market value on sales in the neighborhood in valuing residential property like that. Some of the best sales they make “is residential and they sell for other purposes at that time and they buy them with the intention of getting it zoned.” When asked if his testimony was based, not on sales in the neighborhood, residential, but on conjecture of what might happen in the future, he said: “I don’t care what it is zoned at. I still say that property on that point will bring $1 per square foot or more.” There has been no change in the zoning up to the day of taking in this area, or application made therefor, and there won’t be “until this is over, I don’t think” He said he was fairly familiar with the facts of the zoning in Irving, which is one of the factors he took into consideration in reaching his opinion of the market value of Mrs. Henslee’s property. The adaptability and business use of Mrs. Henslee’s prop erty is the basis of his opinion in placing the market value on her property, and the highest and best use of her property was the basis for the market value that he placed upon her property. It is necessary for an appraiser to take into consideration the adaptability and highest and best use of the property, which he did in making his appraisal. In his opinion it is important in valuing property to know what use the property is adaptable to. (Italics ours.)

In the course of this witness’ testimony the appellants’ attorney moved the court to allow appellants to question Eastus further in regard to the highest and best use of the subject property and in regard to how such expert witness arrived at his appraisal value and to show the reliance placed upon the adaptability of the property to future business use in arriving at his appraisal. (Italics ours.)

Counsel for appellees moved several times during the trial that Eastus’ testimony and the comparable sales mentioned by him in which the property was zoned “commercial” be stricken and the jury instructed not to consider the same. These motions were overruled, but in no instance was this done without qualification. For instance, on one occasion the judge stated: “At this time I will overrule the motion. I will take it under consideration at a later time if I believe it necessary to consider it.” It could not therefore have been a surprise to counsel for appellants when, at the close of the testimony, the court excused the jury and in chambers announced to the attorneys that he was now sustaining the appellees’ motion to strike Mr. Eastus’ testimony as to the value of the land taken and all of the comparable sales mentioned by him except sale No. 3. The record shows that while counsel for appellants argued with the court on the propriety of the ruling and urged the court to reverse it, he did not request leave to withdraw his announcement of closing, or additional time in which to produce other testimony or evidence. The court then instructed the bailiff to erase from the blackboard the figures under the name of Roy Eastus as to the value of the land and the comparable sales, to all of which counsel for appellants took exception but still did not request additional time to produce other evidence. The court then called the jury back into the jury box and delivered the charge to them.

There was no evidence of a probable change in the zoning regulations within a reasonable time.

Appellants have called our attention to our opinion in Andrews v. City of Dallas, Tex.Civ.App., 232 S.W.2d 753, 755, wherein we said rather broadly that in an eminent domain proceeding the measure of damages is “the highest value of the property for any use for which the property is adaptable,” and also that where the property being condemned is zoned for residence use, “it is error to exclude evidence of market value for residence purposes; it is also error to exclude its market value for any other purpose for which it is adaptable; and it matters not that the land may be presently unavailable under the zoning ordinance for all of such purposes.” We do not consider that language as controlling here. In the first place, it is pure dictum because the only question actually involved in that case concerned the propriety of a jury argument. But more important is the fact that our Supreme Court in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, expressly held that neither our opinion in the Andrews case nor its opinion reversing the case in City of Dallas v. Andrews, 149 Tex. 609, 236 S.W.2d 609, conclusively upheld the position that the jury should be allowed to consider the - value of the property for commercial purposes in the face of contrary zoning restrictions.

In City of Austin v. Cannizzo, supra, the Supreme Court, after expressing its unwillingness to lay down a hard and fast rule that in arriving at market value consideration may never be given to a use for which property is reasonably suitable and adaptable but which use is presently prohibited by a zoning ordinance, it being a matter of common knowledge that such ordinances are frequently lifted and the zoning changed, and also its unwillingness to announce a rule, except in general terms, that should be applied in all cases where zoning ordinances or other legal restrictions existing at the time of taking prohibit the use of the property for purposes other than those to which it is devoted, laid down this general rule:

“If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available.”

By this language the trial court is given considerable discretion as to whether he will permit evidence of the adaptability or suitability of the condemned property for commercial or business uses when at the time of taking the zoning regulations prohibit such use. We are not authorized to substitute our rulings for his on the admissibility of evidence unless it appears that he has abused that discretion.

It was said in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200:

“It appears to us that in most if not all cases the whole matter of what may be considered by the jury and what may not be considered will be best determined by the trial court in the admission and exclusion of testimony rather than by instructions to the jury. In that way the possibility of instructions upon the weight of the evidence, and also the possibility of the jury allowing damages upon the basis of special items, rather than determining the ultimate question of the difference in market value, will be avoided.”

The ruling complained of was consistent with both of the Supreme Court’s opinions above discussed, and we cannot say in the light of the record of this case that the trial judge erred in excluding the testimony. State v. Baker Bros. Nursery, Tex.Sup., 366 S.W.2d 212; Cravens v. City of Amarillo, Tex.Civ.App., 309 S.W.2d 903, 908, err. dism. The first thirteen points of error are overruled.

In their fourteenth point of error appellants set forth seven separate rulings and remarks of the trial judge, all of which were unfavorable to appellants, and say that the cumulative effect thereof was to deny appellants a fair and impartial trial. They did not, in our opinion, cause the rendition of an improper judgment. Rule 434, T.R.C.P. The jury found the highest value testified to by any witness whose testimony was allowed to remain before the jury, which in itself belies the thought of an unfair trial. The point is overruled.

In their fifteenth and sixteenth points appellants say that the verdict and judgment are wholly inadequate and insufficient, the only argument being that the verdict and judgment are $3,800 less than the award of the special commissioners. This is insufficient. The points are overruled.

In their seventeenth and last point appellants remind us that it has been held that when one particular error is itself insufficient to require a reversal, the cumulative effect of numerous errors may be sufficient for that purpose. Our search of the entire record fails to reveal any error which by itself or in conjunction with others would justify a reversal.

Affirmed.


author: FRASER, Chief Justice.

text:
    VULCAN MATERIALS COMPANY and its division, Frontier Chemical Company, and J. C. Fuqua and wife, Allie Hariien Fuqua, Appellants, v. Miles WARLICK et al., Appellees.
    No. 5619.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 29, 1964.
    Rehearing Denied Feb. 19, 1964.
    Evans, Pharr, Trout & Jones, Charles B. Jones, Crenshaw, Dupree & Milam and Joe H. Nagy, Lubbock, for appellants.
    Willis E. Gresham, Jr., Karl Cay ton, Lamesa, Blanchard & Clifford, Lubbock, McDonald, Shafer & Gilliland, Odessa, for appellees.
   FRASER, Chief Justice.

This suit arose out of a collision that occurred between an automobile operated by appellant Mrs. Allie Fuqua, and a large chemical transport tank truck and semitrailer which was being driven by Clarence C. Young, who was an employee of the appellant Vulcan Materials Company and Frontier Chemical Company, a division thereof. The collision occurred at about 2:15 or 2:20 A.M., July 28, 1960. After the collision the truck proceeded, according to the record, about sixty feet through the intersection and into the cafe building owned by Mrs. Lindley and operated as a cafe by Miles Warlick, causing extensive damage by fire and collision. The collision appears to have happened at the intersection, as the truck of the defendant Vulcan Materials Company was proceeding south and the Fuqua car was proceeding north on Highway 385, in the center of Seminole, Gaines County, Texas. The truck driver was the only occupant of the truck. Mrs. Fuqua was driving the Fuqua car. Her husband was in the front scat, but testified that he did not see the accident, as he was turned, attempting to awaken a friend in the back seat at the time of the collision.

The jury did not find that there was any sole proximate cause of this accident, but it did find that Mrs. Fuqua failed to keep a proper lookout; failed to have her vehicle under proper control, and failed to turn her vehicle to the right to avoid striking the defendant’s truck; and that she drove her vehicle to the left of the center of the highway. The jury found all of these facts to be negligent, and each a proximate cause of the fire.

The jury found that Clarence Young, the driver of the truck, failed to apply his brakes in time to avoid striking the building in question, and that such was negligence and a proximate cause of the fire. The jury further found that just prior to the collision, the said driver, Clarence Young, was not confronted with a sudden emergency. The court rendered judgment in favor of Mrs. Lindley and Miles Warlick against Vulcan Materials Company and Mr. and Mrs. Fuqua, as joint tort-feasors, and further ordered that Vulcan Materials Company do haye and recover indemnity against Mr. and Mrs. Fuqua.

Appellant Vulcan Materials Company alleges error in that there was no evidence to support the finding of the jury that the failure of Clarence Young to apply the brakes was negligence; that such finding was contrary to the overwhelming weight of the evidence; that there was no evidence to support the finding of the jury that the failure of Clarence Young to apply brakes in time to avoid striking the building was the proximate cause of the fire; and lastly, that the finding of the jury that Clarence Young’s failure to stop the truck was a proximate cause of the fire is contrary to the overwhelming weight of the evidence.

We feel that these points must all be overruled for the following reasons. It appears from the testimony that Mrs. Fuqua did hit the left-hand side of the defendant truck and, as she said, hung her bumper in the gas tank, or the step-up on the gas tank. She claims that all she saw was smoke billowing up. The driver of the truck testified that he was going from 16 to 18 miles an hour; also, that fire appeared immediately upon the happening of the collision. The record shows that it would have taken him from 1½ to 3½ to 4 seconds to traverse the sixty feet between the front of his truck and the cafe. There is no proof or allegation that the truck driver was violating any law or ordinance in regard to driving. The driver testified that immediately on the collision, flames came up on the left-hand or driver’s side of the truck, and that he immediately began to get out on the right-hand side of the truck, and that while he was doing that he attempted to stop the truck with the foot brake, but that his foot slipped off, and as the truck hit the cafe building he then “bailed out.” However, bearing in mind that the jury found he was not confronted with a sudden emergency, his own testimony becomes important because there were no eye witnesses other than the participants. The driver testified that the first thing he thought of was whether or not his tank of muriatic acid had ruptured, and he immediately decided that it had not. He described the hand brake as a device under the steering wheel, and one had to hit it or flip it down and it would then lock the wheels of the trailer. He testified that he applied the foot brakes because he thought they were more effective, as they applied to all the wheels, and further said that while they would only lock as long as his foot was on the brake, he felt he could stop the truck that way, and that he did stay with it until it stopped when it hit the building. But he further testified that if he had applied the hand brake he doubted that he would have run into the cafe. The following is taken from the Statement of Facts:

“Q. All right, fine. In other words, the truck had already run into Mr. Warlick’s Cafe before you got out?
“A. Yes, sir.
“Q. All right, fine. Now, is it your testimony then that if you had applied the hand brake you would have still run into Mr. Warlick’s building ?
“A. I doubt if it would have.
"Q. You don’t think it would have?
“A. It is possible it would have stopped first.
“Q. Well, now as a matter of fact, Mr. Young, you had been driving trucks for years?
“A. Yes, sir.
“Q. And you say you were driving at a very slow rate of speed?
“A. Yes, sir.
“Q. Now isn’t it a fact that in your best judgment as you sit there right now, that if you had flipped that hand brake there it would have stopped it and Mr. Warlick wouldn’t have been burned out ?
“A. It is a possibility, yes, sir.
“Q. Isn’t that a possibility that would have happened?
“A. Yes, sir.
“Q. It is more a possibility, it is more ■ than a possibility that is what you think, isn’t it?
“A. Yes, sir.
“Q. Now instead of applying the hand brake there you applied the foot brake. Now, Mr. Young, if you had applied the foot brake, which applied to more than the hand brake did, and in your opinion if you had flipped that switch on the hand brake it would have stopped it, how do you explain the fact that with you riding that truck all the way into Mr. Miles Warlick’s building it didn’t stop it with your foot on the foot brake ?
“A. I will be glad to explain that
“Q. All right, I wish you would?
“A. When this flame came into the truck and it was still moving I immediately moved away from that. I tried the brake twice with my left foot. My main interest then was getting out of it because it was hot.
“Q. I thought you said you rode that truck until it ran into the building?
“A. I did. I didn’t say I got out of it.
“Q. If you had time to sit there in the cab and ride that truck going at that very slow rate of speed all the way across over here and into the building, why is it that you couldn’t have thought to apply that hand brake and forgot about your foot ?
“A. The foot brake is more effective than a hand brake.
“Q. I know that, Mr. Young. You have already testified—
“MR. JONES: I think he ought to be allowed to answer the question.
“THE COURT: Have you finished your answer to his question?
“THE WITNESS: No, sir.
“THE COURT: Go ahead.
“Q. (By Mr. Cayton) Mr. Young, go ahead and finish that answer.
“A. You asked me about the distance I traveled from back to the car and my truck until the impact of the truck into the cafe, did you not ?
"Q. That was some time ago.
"A. I want to explain about the braking situation. As I moved over, when this tank exploded in this truck and this fire came into it, and the wind was coming from the south direction, this fire was completely over me, just a big arc of it, and I was under it and I moved away from it. That put me a straddle of my gear shift in the floor board of the truck. My right one was on the right side of the gear, and that is why it slipped off. I made two attempts for it. In the meantime, the truck rumbled along until it hit the building and when it did the fire went into the building and I bailed out.
“Q. The question I asked you, I believe, is this: it would have been easier for you to have flipped that hand brake up there than it would have been for you to be fighting that foot brake with your left foot, wouldn’t it?
“A. Yes, sir.
“Q. All right. And if you had hit that hand brake Mr. Miles War-lick would probably still have had a cafe the next morning?
“A. Yes, sir.”

Mr. Young further testified as follows:

“Q. Now, were you injured in this collision, or the impact with the Fuqua car?
“A. No, sir.
“Q. You had full possession and control of all of your mental faculties at that time ?
“A. Except it hit, that is all, and the scorched cap. It scorched my cap and my face on the left side. That is why I moved over, sir.”

From the above testimony it appears to us that there was sufficient evidence to warrant and substantiate the jury’s answer to the effect that Mr. Young failed to apply his brakes in time to avoid striking the building that was burned, and that such failure was negligence and such negligence was a proximate cause of the fire in question. We will not elaborate on the testimony set forth above, as it is self-explanatory. No error seems to have been alleged in the jury’s finding that Mr. Young was not confronted with a sudden emergency.

Therefore, on the basis of the testimony as set forth herein and the record as a whole, we feel that we must overrule the four points of error that appellant has set forth.

The Fuquas do not appeal, apparently, from the judgment against them as joint tort-feasors, but they do appeal from that part of the judgment granting Vulcan Materials Company indemnity against J. C. Fuqua and wife, Allie Harlien Fuqua, for such amounts as the Vulcan Materials Company might be required to pay under the terms of this judgment.

We think this point is well taken and must be sustained. Under Article 2212, Vernon’s Ann.Civ.St., and cases cited thereunder, each active joint tort-feasor stands in pari delicto with the other, and each, under the statute, is liable for the damages arising from the accident caused by their wrongful conduct. Landess v. Thomas, Tex.Civ.App., 343 S.W.2d 504, and cases cited thereunder. Austin Road Co. v. Pope et al., 147 Tex. 430, 216 S.W.2d 563 (Texas Supreme Court, 1949). We think these cited cases point up the difference between active joint tort-feasors and one who is guilty of only passive negligence. Here the jury found, based doubtless on the testimony of Mr. Clarence Young, that he was guilty of an error in judgment amounting to negligence, which was a proximate cause of the fire, all of which happened after the collision.

We therefore grant the point of error presented by Mr. J. C. Fuqua and wife, Allie Harlien Fuqua.

For the above reasons the judgment of the trial court is reformed, in that defendant Vulcan Materials Company shall not be entitled to indemnity against Mr. and Mrs. Fuqua, and that part of the judgment of the trial court so ordering is hereby reversed and rendered. The plaintiffs shall therefore have their judgments against Vulcan Materials Company and Mr. and Mrs. Fuqua.

As so reformed, the judgment of the trial court is in all things affirmed.


author: COLEMAN, Justice.

text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. John T. NUNN, Appellee.
    No. 14278.
    Court of Civil Appeals of Texas. Houston.
    Feb. 6, 1964.
    Rehearing Denied Feb. 27, 1964.

      E. H. Patton, Jr., Houston, Bryan & Patton; Houston, of counsel, for appellant.
    Damiani & Black, Raymond L. McDer-mott, Mabel Grey Howell, Houston, for ap-pellee.
   COLEMAN, Justice.

This is an appeal from a judgment entered in response to a jury verdict awarding appellee the benefits prescribed by the Workmen’s Compensation Act for total and permanent disability.

Before the trial began appellant presented to the trial court a motion in limine requesting the trial court to exclude from the jury the fact that total and permanent disability was compensable by 401 weeks of compensation and that appellee’s compensation rate was $35.00 per week. This motion was denied and the court permitted that part of appellee’s petition praying for a judgment for total, permanent incapacity in the amount of $35.00 per week for 401 weeks to be read to the jury.

Thereafter, during jury argument, ap-pellee’s counsel argued:

“Now we have the evidence from the man’s own boss, who says that he couldn’t employ John T. Nunn in his condition as a full-time employee. He has been working strictly as an independent, picking up some help to enable him to do it. I admire him for it. I know that the jury does. They are not going to hold it against John because he got out and sold a few vacuum cleaners, and say that he is not entitled to a miserable $35.00 a week for 401 weeks maximum.
“MR. PATTON: Your Honor, I object to that. It is outside the province of the jury.
“THE COURT: Overruled.
“MR. McDERMOTT: $35.00 a week for 401 weeks, that is the magnificent sum the law allows for this kind of case.
“MR. PATTON: Same objection. There is nothing in evidence about it.
“MR. McDERMOTT: The pleadings show that. The pleadings show what has been sued for, the most the law allows.
“Ladies and gentlemen of the jury, I am sure most of you know that anyhow. That is all he can get. That is the maximum.
“MR. PATTON: Your Honor, the same objection.
“THE COURT: Overrule the objection.
“MR. McDERMOTT: $35.00 a week for 401 weeks. And that can be discounted at four per cent per annum for lump sum payment.
“MR. PATTON: Same objection.
“THE COURT: Sustain the objection.
“MR. McDERMOTT: I realize the insurance company doesn’t want you to consider the small, meager sum he will receive under the law, but, ladies and gentlemen of the jury, you are entitled to know what this man sued for and what the law allows, and that is all I am telling you. I think most of you know it anyway. That is all he has sued for, for that is what the law provides.
“MR.' PATTON: May I have a running objection to this line of argument?
“THE COURT: Yes.
“MR. McDERMOTT: Don’t whittle that sum down folks, please. Don’t go out there and find it to be a case of partial disability, when it is not under the law and facts of this case. It is not. It is a case of total, permanent disability, or it is nothing.
⅝ ⅜ ⅜ ⅜ ⅜ ⅜
“And if we do fail to convince one or two members on the jury, the rest of you stay there just as long as necessary to' see that a verdict is written in this case of total, permanent disability.
“It is a meager, small sum for the suffering and disability this man has endured. All you have to do is to look at him, to look at the side of his worn shoes, and know that he has spoken the truth to you from beginning to end in this lawsuit.
* * * * * *•
“ * * * you can say to John, we have written a fair verdict under the evidence in this case; we know you are trying, and this. little bit may help you.”

Appellant’s point of error is that “the Court erred in allowing plaintiff to advise the jury by the reading of pleadings and by argument that the maximum recovery plaintiff could obtain was $35.00 per week for 401 weeks.”

There is considerable question as to whether the Texas cases support the proposition that the reading to a jury of a pleading such as that with which we are concerned constitutes error. Federal Underwriters Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880, aff’d 138 Tex. 128, 157 S.W.2d 356; Texas Employers’ Insurance Ass’n. v. Rigsby, Tex.Civ.App., 273 S.W.2d 681; Texas Employers’ Insurance Ass’n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893, writ ref., n. r. e.; Traders and General Insurance Co. v. Smith, Tex.Civ.App., 311 S.W.2d 91, writ ref., n. r. e.; Texas Employers’ Insurance Ass’n v. Rubush, Tex.Civ.App, 337 S.W.2d 501.

This Court has held that it is not error for the trial judge, on motion, to instruct the counsel for a claimant not to inform the jury, either in reading from pleadings, or by argument, the law with reference to wage rate or the number of weeks’ compensation provided by law for a particular injury. Sisk v. Glens Falls Indemnity Company, Tex.Civ.App, 310 S.W.2d 118, 66 A.L.R.2d 1.

No decision of the Supreme Court of Texas deciding this question has come to our attention. In Texas Employers’ Insurance Ass’n v. Poe, 152 Tex. 18, 253 S.W.2d 645, the Court stated: “It is the better practice not to read to the jury those portions of the pleadings with which the jury is not concerned.” This admonition was repeated in Texas Employers’ Insurance Ass’n v. Rubush, supra. All of these cases held that the error, if any, in permitting the pleadings to be read to the jury was not a reversible error in that such an error was not one calculated to cause, and which on the record of the particular case, probably did cause, the rendition of an improper judgment.

The objections urged to the argument placing before the jury the fact that $35.00 per week for 401 weeks is the maximum compensation allowed under the statute were that the argument was not based on evidence and concerned matters outside the province of the jury. The objections were proper and should have been sustained. Ex Parte Fisher, 146 Tex. 328, 206 S.W.2d 1000. In determining whether harm probably resulted, it is proper to consider the fact that the jury had been informed by the pleadings the maximum amount of compensation one totally and permanently disabled could recover. Texas Employers’ Insurance Ass’n v. Poe, supra. It would be illogical to hold that information gained from a pleading which the court impropex-ly, if not erroneously, permitted the jury to hear would render harmless the court’s error in permitting improper argument. The fact that the jury heard the pleadings read should not affect our determination of whether or not the error in permitting the objectionable argument probably resulted in the rendition of an improper judgment. This error would not be minimized nor magnified by the fact that the jury learned the same thing from hearing the pleadings.

Counsel for appellee argued that the jury should not find that appellee suffered a partial disability, when the evidence showed a total, permanent disability, merely because appellee would be entitled to $35.00 per week for 401 weeks, for total, permanent disability. He was arguing that this was a small sum; that his client was not trying to get rich at the expense of the insurance company. It cannot be doubted that some information as to the effect of their answers to the issues was thus imparted to the jury. In his written charge the court instructed the jury not to “discuss nor consider what effect any of your answers may have upon the rights of the parties, nor the judgment that may be rendered by this Court in this cause * * The size of the judgment to be entered by the court, whether large or small, was not a matter which should have been considered by the jury in determining whether appellee’s disability was total or merely partial. No issue on wage rate was submitted. The evidence of permanent disability was strong, though not conclusive. Under the evidence the more closely contested issue was whether the disability was total or only partial. The jury’s answer finding appellee’s disability total is strongly supported by credible evidence. Had the jury found partial disability, such a finding would also have found ample support in credible evidence. Considering all of the evidence, we conclude that the answer made by the jury is supported by a preponderance of the evidence.

There is nothing in the record to demonstrate that the jury was improperly influx encéd, in arriving at their answers to the issues submitted, by the argument of which complaint is made. A consideration of the record as a whole does not convince us that the argument probably caused the rendition of an improper judgment.

Appellant complains that the court erred in allowing appellee’s counsel to advise and argue to the jury that plaintiff had not been paid any weekly compensation, where lump sum benefits were stipulated, and had not paid plaintiff’s medical and hospital expenses, where it was stipulated that the full amount of such expenses would be paid by appellant if the jury found that plaintiff had sustained a compensable injury.

By motion in limine the court was requested to instruct counsel not to introduce evidence showing the nonpayment of weekly compensation or of medical and hospital expenses. This motion was denied by the trial court. Questions concerning these matters were asked, and answered, without further objection. The trial court was not required to determine in advance of trial the admissibility of such evidence. In any event the evidence was properly admitted as tending to show necessitous circumstances requiring appellee to work when he was not physically able to do so. Muro v. Houston Fire and Casualty Insurance Company, Tex.Civ.App., 329 S.W.2d 326, writ ref., n. r. e., on former appeal, 310 S.W.2d 420. This evidence was referred to by appellee’s counsel in his argument to the jury and appellant failed to secure a ruling on his objection, if in fact the objection was directed to the matter of which complaint is now made. Under these circumstances appellant has no grounds for complaint. Hartford Accident and Indemnity Co. v. McCardell, Tex.Sup., 369 S.W.2d 331; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

Appellant’s fourth Point of Error reads:

“The Court erred in allowing- plaintiff to imply and infer to the jury by questions, argument, and side-bar remarks that 'Dr. Thomas Hudgins had acted improperly, unethically, or illegally in discussing his treatment of plaintiff with defendant’s counsel at a time when Dr. Hudgins was under subpoena duces tecum to produce his records, was in attendance of court, and was waiting to be called as a witness.”

During the course of cross-examination of Dr. Hudgins by appellee’s attorney, the following occurred:

“Q Doctor, though you were subpoenaed by the insurance company to appear in this case, did I not see you in the next court room back there during the recess going over your file with Mr. Patton?
“A He asked me if he could talk with me, and we went in there about a minute.
“Q Were you not going over the file with him, holding your report and discussing those reports ?
“A Since I had been subpoenaed, I felt that I had a right to do so.
“Q Did you have any permission from the patient to reveal the contents of a privileged file to this lawyer ?
“A I didn’t think under subpoena I had to.
“Q You feel that you can, under your oath as a doctor, reveal a privileged file you have on a private patient to somebody else without the patient’s consent ?
“A I don’t usually, but I have been used to doing it if I was ordered to produce it in court under subpoena.
“Q Did this court ever order you to produce it?
“MR. PATTON: Your Honor, he is trying to argue a matter of law.
“MR. McDERMOTT: I object to the statement of the law. He has no right to produce it until the Court orders it done.
“MR. PATTON: That is not correct.
“Q Did the Court ever order you to show the file.
“MR. PATTON: I object because it is immaterial.
“MR. McDERMOTT: It shows the interest and bias of this witness.
“THE COURT: Overrule the objection.
"Q Did you ever get an order from this Court to show this file on this private patient to this insurance company ?
“A No, sir. If I was in error, I apologize abjectly.
“Q At no time did you ever obtain permission from this private patient to demonstrate the file to the insurance company lawyer?
“A No. I made a mistake apparently.
“MR. McDERMOTT: That is all.”

REDIRECT EXAMINATION By Mr. Patton

“Q Doctor, if I led you into error, I am sorry. Did you reveal anything to me that did not come out here on the witness stand?
“A Nothing.”

It is noted that there was only one objection made by appellant on which he secured a ruling of the court, and the grounds for that objection was immateriality of the question.

After the testimony was closed, appellant filed a written motion asking the court to prohibit argument to the jury touching on the alleged improper conduct of Dr. Hudgins and asking that the jury be instructed that Dr. Hudgins had not acted improperly. This motion was overruled. Appellee’s counsel, in his argument to the jury, stated that the doctor, contrary to the ethics of his profession, revealed to appellant’s lawyer the contents of appellee’s private file, and that he had no right “to reveal the private confidential file of a patient to the Insurance Company lawyer before he ever gets on this witness stand, without the benefit of a court order, without any direction from this Court, but purely on his own.” An objection was made to the argument on the grounds that the argument was not on matters of evidence, but was an incorrect statement of law. While the first time the argument was made, the objection was overruled, when it was repeated and the objection was again urged, it was sustained. The requested instruction was not renewed.

While the question “Did the Court ever order you to show the file?” may have been objectionable, it was not immaterial. As a matter of law the doctor was not required to answer the questions of appellant’s lawyer in the absence of a court order, which is all it appears that he did, nor is he prohibited from doing so. While under the circumstances as explained to the jury by the doctor, he was not to be censured for his cooperative attitude to appellant’s attorney, the attack by appellee’s attorney is understandable when it is borne in mind that appellant’s attorney might well have hesitated to call the doctor as his witness had he not been advised of the general tenor of his testimony. It is unlikely that the matter influenced the jury to give less credence to the doctor’s testimony. Since the objection to the argument was sustained, no error was shown in reference thereto in the absence of a request to disregard. The Point does not present reversible error.

Appellant’s final Point relates to the cumulative effect of the various errors presented by the other points of error. No such assignment of error appears in the motion for new trial.

The judgment of the trial court is affirmed.