author: DIXON, Chief Justice.

text:
    B & H AUTO SUPPLY, INC., et al., Appellants, v. Adolphus ANDREWS, Jr., et al., Appellees.
    No. 16930.
    Court of Civil Appeals of Texas. Dallas.
    July 7, 1967.

      Thomas A. Melody, John C. Cain, Dallas, for appellants.
    J. Richard Gowan and Thomas A. Morris, of Johnson, Bromberg, Leeds & Riggs, Dallas, for appellees.
   DIXON, Chief Justice.

B & H Auto Supply, Inc., a corporation, and Floyd Hardin, individually, doing business as B & H Auto Supply, have appealed from a personal judgment against them in favor of appellees Adolphus Andrews, Jr. and others doing business as Andrews-Dill-ingham Properties, for an alleged violation of the Bulk Sales Law, Art. 4001, Vernon’s Ann.Civ.St.

The above named statute has been repealed, the present Bulk Sales Law being Sections 6-101 to 6-106 of the Uniform Commercial Code, which went into effect at midnight June 30, 1966. However, the transactions here involved took place prior to the repeal of Article 4001 and the adoption of the Code, so this controversy must be decided under the repealed statute.

B & H Auto Supply, Inc. was lessee of two separate real properties, one located in the Irving North Shopping Center in the City of Irving, Dallas County, Texas, the other located in Webb Chapel Village in the City of Dallas, Dallas County, Texas. For purposes of clarity these leases will be discussed separately.

Irving North Shopping Center Lease

In March 1964 appellees Andrews-Dill-ingham Properties as landlords entered into a written lease contract with B & H Auto Supply, Inc. as tenant covering property in the City of Irving, Dallas County, Texas for a minimum rental of $16,500 for a term of five years, payable $225 per month for the first year, $250 per month the second year and $300 per month for the balance of the contract term.

On July 31, 1964 the parties to this lease agreed that it might be extended to August 31, 1969 and that B & H Auto Supply, Inc. might sublet the premises to one Ray O’Con-nor, but that the B & H corporation would not be relieved of liability.

In April 1965 O’Connor defaulted and vacated the premises. The B & H corporation afterward made payment of the rentals due through August 31, 1965, but itself defaulted on the monthly payment due September 1, 1965 and has paid no further rent since that time.

It was stipulated that all rentals accruing prior to September 1, 1965 had been paid, but that B & H Auto Supply, Inc. owed past due rentals in the sum of $1,536 which had accrued since September 1, 1965.

Webb Chapel Village Lease

Appellees Andrews-Dillingham Properties were never the landlords in the Webb Chapel lease, and B & H Auto Supply, Inc. was not the initial lessee.

The record before us does not disclose the name of the landlord in the Webb Chapel lease. The initial lessee was W. K. Bullock, individually. Bullock was President of B & H Auto Supply, Inc.

Bullock testified that as lessee he first rented the property to B & H Auto Supply, Inc. and later subleased it to appellant Floyd Hardin, individually.

It is not contended that any of the rentals on this lease are past due. Bullock admitted his continuing liability for payment of the rentals under the lease.

Alleged Violation of Bulk Sales Law

On August 31, 1965 B & H Auto Supply, Inc. conveyed its stock of merchandise located on the Webb Chapel premises to W. K. Bullock, individually. Part of the consideration was the value of the merchandise, which was to be credited on a note owed by the corporation to Bullock for money loaned to the corporation. Also part of the consideration was the payment by Bullock of the creditors of the corporation. Bullock testified that he paid all the debts due by the corporation on the date of the transfer, August 31, 1965; and in support of his testimony he put in evidence numerous can-celled checks totaling several thousand dollars. The record does not reveal the names of any alleged creditors who claim they were not paid except Andrews-Dillingham Properties. There'was no evidence of the value of the stock of merchandise at the time of. the transfer.

The day following the above transfer of the stock of merchandise, Bullock, the transferee, in turn transferred the merchandise to Floyd Hardin, who apparently then began operating a business individually at the Webb Chapel premises as Floyd Hardin doing business as B & H Auto Supply.

On October 27, 1965 appellees filed this suit alleging B & H Auto Supply, Inc. transferred the stock of merchandise here involved to Hardin on September 1, 1965, and that on said date B & H Auto Supply, Inc. was indebted to appellees for rentals due and to become due on the Irving Shopping Center property; and further that the ten days’ notice of the transfer had not been given to creditors as required by Art. 4001, V.A.C.S. The contingent liability of B & H Auto Supply, Inc. on the Irving Shopping Center lease was alleged to be $13,200, based on the monthly rental payments due and to become due in the future. Appellants asked for attorney’s fee in the amount of $750.

Appellants further prayed that Hardin be named as receiver pursuant to the terms of Article 4001.

W. K. Bullock was not made a party to the suit.

Judgment of the Trial Court

In rendering judgment as of February 3, 1966 the trial court found that B & H Auto Supply, Inc. was indebted to appellees for past due rentals on the Irving Shopping Center property in the amount of $1,792, plus agreed attorneys’ fees in the sum of $750, making a total of $2,542 plus interest, for which sum a personal judgment was rendered against both B & H Auto Supply, Inc. and against Floyd Hardin, individually.

The court found that B & H Auto Supply, Inc. will be unable to pay the additional sums of rent to become due in the future under the terms of the lease.

The court concluded that Floyd Hardin, as provided under the terms of Article 4001, is a receiver for the benefit of appellants and all other creditors of all assets acquired from B & H Auto Supply, Inc. Accordingly, Hardin was directed to file within thirty days a verified accounting of all assets he acquired from B & H Auto Supply, Inc., including the location and condition of said assets; to file a statement of the proceeds of any sale of such assets by Floyd Hardin; to hold and continue to hold the remaining assets as receiver for appellees as security for such further sums as shall become due to appellees under the lease terms; and to render annual accounts under oath to the court until the receivership should be terminated.

OPINION

In their first point of error and argument thereunder appellants contend that there was no violation of Article 4001 because it is undisputed that the rental installment payments had been fully paid through August 31, 1965, therefore there was no debt due on the rental contract on that date; and that any future installment payments, being unmatured obligations and contingent in nature, were not debts; and appellees were not creditors within the meaning of the statute.

We know of no Texas case exactly in point, though there are cases which shed some light on the question. Fischer v. Rio Tire Co., 65 S.W.2d 751 (Tex.Comm’n App., 1933, holding approved), a case involving the Bulk Sales Law, quotes Bouvier’s Law Dictionary in which the word “creditor” is defined as follows: “He who has a right to require the fulfillment of an obligation or contract.” The opinion then quotes 27 C.J. 878, 879 to the effect that the statute is not restricted to any particular class of creditors, but includes all persons who were creditors of the seller at the time of the sale, although their claims were not due and though they were not creditors for merchandise, but were merely general creditors of the seller in other transactions.

In McWade Tube Co. of San Antonio, et al. v. Newnam et al., 258 S.W. 560 (Tex.Civ.App., San Antonio 1924, writ dism’d) facts were that a salesman had negotiated a contract for the sale of tubes. Before the sale was fully consummated and before the payment of the salesman’s commission was actually due, a transfer of merchandise was made in violation of the Bulk Sales Law. The court held that the salesman was nevertheless a creditor, as his claim had accrued, though it was not actually due, at the time of the sale.

A majority of decisions in other jurisdictions hold that the owner of an un-matured debt which is fixed and which is certain in amount is a creditor who may assert his rights as such. 85 A.L.R.2d 1220 and cases there cited; 37 C.J.S. Fraudulent Conveyances §§ 63, 64, 65, 72, 74, 101, 479, pp. 908, 909-910, 914, 938, 1333-1334. For example, a person who borrows $1,000 and signs a note for that amount payable in monthly installments is a debtor for the unpaid balance of the note though he may not be in arrears with any installment at the time of the bulk sale. The debt, though not due, is fixed and certain. Its existence as a debt is not contingent.

Appellants argue that their liability for monthly rental payments is contingent, not fixed and certain as in the example of the promissory note above mentioned. Trust Co. of Chicago v. Fargeson, 340 Ill.App. 344, 92 N.E.2d 211 (1950); 85 A.L.R.2d 1223, 1224. In support of their argument appellants point out that the lease contract expressly provides that in the event of the destruction of the premises by fire, tornado, or other casualty the lease shall terminate. Thus there is no certainty that the obligation of appellant B & H Auto Supply, Inc. to pay rent in the future will ever mature.

Also the lease contract provides that upon default in payment of any installment, ap-pellees at their election may declare the lease forfeited, or may re-enter and relet the premises at the best rent obtainable, crediting the lessee with the rent so received. The record is silent as to whether any such action has been taken by appel-lees. However, W. K. Bullock, President, testified and the court found that B & H Auto Supply, Inc. will not be able to make any more payments on rent now past due or that may become due. Notwithstanding the silence of the record on the point we must say that it would be surprising indeed if ap-pellees as landlords should allow their building to remain unoccupied in the vain hope of collecting rent money from a tenant who cannot pay.

There are cases from other jurisdictions which support or tend to support appellees’ position. Ratliff et al. v. Davis et al., 133 Colo. 315, 294 P.2d 1109 (1956) involved unmatured payments on a lease contract. The court held that the term “creditors” as used in a Bulk Sales Law included creditors whose claims have not matured. The court declared that to hold that the statute included only those whose claims are presently due would be to exclude a great class of creditors and would open the way for fraudulent transfers to avoid undesired or ill-advised purchases, leases or services.

In Wright v. Haley, 208 Ind. 46, 194 N.E. 637 (Ind.1935) it was held that a lessor was a creditor though, as in the instant case, the rent was paid up to the last day of the month in which sale was made. See also Dubin v. Woolfson, 117 Conn. 143, 167 A. 97 (1933); Mutual Grocery Co. v. Weiler et al., 14 N.J.Misc. 909, 188 A. 513 (1936); Empire Radio Co., Inc. v. Bates, 56 R.I. 116, 183 A. 882 (1936).

We have concluded that the transfer of the stock of merchandise on August 31, 1965 by B & H Auto Supply, Inc. to W. K. Bullock and the transfer on September 1, 1965 by Bullock to Hardin were in violation of Art. 4001, V.A.C.S. We have also concluded that appellees were creditors of B & H Auto Supply, Inc. within the meaning of the statute and that the personal judgment against B & H Auto Supply, Inc. for matured and past due monthly rental payments in the amount of $2,542 principal must be sustained. Appellants’ first point of error is overruled.

We make no holding as to whether appel-lees are now entitled to judgment or will be in the future entitled to judgment against B & H Auto Supply, Inc. for additional monthly installments. That question must be determined on the happening in the past or future of certain contingent events concerning which the present record is silent.

The second point of error asserts that it was incorrect to render a personal judgment against Floyd Hardin, the subsequent transferee of the stock of merchandise. With this contention we agree.

£4-6] The transferee of property sold in violation of the Bulk Sales Law, under the terms of the statute itself, occupies the status of a receiver. As such he is not personally liable for the debts of the seller. He is accountable to the seller’s creditors on a pro rata basis only to the extent of the value of the property. The transferee has no personal liability at all unless he converts the property to his own use or otherwise defaults in his responsibility as receiver so as to place the property beyond the reach of the creditors. Since the statute announces no rules to govern the transferee’s powers, duties and liabilities as receiver the court will resort to other statutes for guidance in regard to the duties and liabilities of a receiver. Gardner v. Goodner Wholesale Grocery Co., 113 Tex. 423, 256 S.W. 911 (1923, opinion adopted); Fischer et al. v. Rio Tire Co. et al, 65 S.W.2d 751 (Tex. Comm’n App.1933, holding approved); Set-tegast et al. v. Second Nat’l Bank et al., 126 Tex. 330, 87 S.W.2d 1070, 102 A.L.R. 680 (1935); Southwestern Drug Corp. v. Mc-Kesson & Robbins, Inc., 141 Tex. 284, 172 S.W.2d 485, 155 A.L.R. 1056 (1943); Gro-gan Lord & Co. et al. v. Cameron Mfg. Co., 256 S.W.2d 996 (Tex.Civ.App., Austin 1953, affirmed in part and reversed in part on other grounds, 153 Tex. 16, 262 S.W.2d 939, 1953).

Since the record before us is silent as to any conversion of the property to his own use by Hardin, or his disposing of it in such manner as to place it beyond the reach of the creditors of B & H Auto Supply, Inc., it was error to render personal judgment against him for $2,542 or any other amount. If subsequent proceedings disclose that Hardin has converted the property or part of it to his own use he may be personally liable, but even then his personal liability will extend only to the value of the property converted. 14 Tex.Jur.2d 27; 49 Tex.Jur.2d 105. Appellants’ second point is sustained. At some stage of the proceedings the value of the merchandise transferred to Hardin will have to be determined.

In their third point appellants claim error on the ground that there was no evidence as to a lease between appellees and appellant B & H Auto Supply, Inc. The point is without merit. The stipulation entered into between the parties referred to an attached copy of the lease as “Exhibit A”. It is recited in the Transcript that the copy attached to the stipulation may be found attached to appellees’ petition. Moreover, both parties in their briefs refer to the lease. And it was stipulated that the rentals due for the months of September 1965 through February 1966 under the terms of the lease amounted to $1,536, and that all rentals pri- or to September 1, 1965 had been paid. Appellants’ third point is overruled.

In their fourth point appellants complain because the court overruled their motion to reopen the case. Appellants wanted to file a trial amendment pleading violation of the anti-trust laws of the state. The court did not abuse its discretion in overruling the motion. Westinghouse Elec. Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954); Ragsdale v. Lindsey, 254 S.W. 2d 843 (Tex.Civ.App., Amarillo 1952, writ ref’d n. r. e.). The fourth point is overruled.

The judgment as to appellant B & H Auto Supply, Inc. is affirmed. The personal judgment against appellant Floyd Hardin is reversed and the cause remanded for further proceedings in accordance with this opinion.

Affirmed in part and reversed and remanded in part.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Eduardo GALLEGOS et al., Appellants, v. Velsie Foster CLEGG, Appellee.
    No. 273.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 22, 1967.
    Rehearing Denied July 20, 1967.

      Arthur Lapham, Victoria, for appellants.
    M. W. Meredith, Jr., of Keys, Russell, Watson & Seaman, Corpus Christi, for appellee.
   OPINION

SHARPE, Justice.

This suit was brought by Eduardo Gallegos, individually and as next friend of his six minor children, and by Nick Lamas, individually and as next friend for his minor son, plaintiffs, against Velsie Foster Clegg, defendant, for damages resulting from a collision which occurred in Victoria, Texas, on July 27, 1965, between the automobile driven by Nick Lamas in which all the minor plaintiffs were riding, and a school bus driven by the defendant. Eduardo Gallegos was not present or involved in the collision.

The findings of the jury material to this appeal are in substance as follows: That the defendant failed to keep a proper lookout on the occasion in question which wás a proximate cause of the collision; that the plaintiff, Nick Lamas, failed to keep a proper lookout and to make proper application of the brakes on the automobile he was driving, and each such failure was a proximate cause, but not the sole proximate cause of the collision. In answer to special issue No. 18, inquiring concerning damages for physical pain in the past and future suffered by the seven minor plaintiffs, the jury answered nothing in each instance. In answer to special issue No. 19, inquiring concerning compensation to Eduardo Gallegos and Nick Lamas for reasonable and necessary medical expenses in the past and future for “injuries, if any, suffered by the minor plaintiffs as a direct and proximate cause of the collision made the basis of this suit” the jury answered:

Eduardo Gallegos, Jr. $46.50

Geneva Gallegos $101.97

Joe Frank Gallegos $51.50

Lilo Gallegos $40.87

Lupe Gallegos $47.50

Minnie Gallegos $56.47

David Lamas $74.00

In answer to special issue No. 20, inquiring concerning damages to Nick Lamas for personal injuries allegedly suffered by him in the collision, the jury answered nothing. In answer to special issue No. 21, inquiring concerning compensation to Nick Lamas, individually, for medical expenses in the past or future on account of injuries, if .any, suffered by him as a proximate result of the collision, the jury answered $12.50.

The trial court rendered judgment on the verdict that Nick Lamas, individually, and as father and next friend for his minor son take nothing; that Eduardo Gallegos as father and next friend for his six minor children take nothing; and that Eduardo Gallegos, individually, recover from the defendant the sum of $344.81, being the aggregate amount of the jury findings on special issue No. 19 for medical expenses in connection with the injuries suffered by the six Gallegos children.

Appellants, the plaintiffs below, assert by two points that the judgment should be reversed and the cause remanded for new trial because (1) the trial court erred in failing to appoint a guardian ad litem for the minor plaintiffs, and (2) the jury verdict, which failed to award damages for plaintiffs’ pain and suffering, is contrary to the overwhelming weight and preponderance of the evidence.

In connection with appellants’ first point, the record shows that plaintiffs’ original petition alleged that there was a possible conflict of interest between the adult plaintiffs (the fathers who filed the suit on behalf of the minor children) and said children, and prayed that a guardian ad litem be appointed to represent the interest of the minor plaintiffs. In addition, on March 14, 1966, the date the trial began, the adult plaintiffs joined by the attorney of record for all the plaintiffs filed a motion which recited that there was a possible conflict between the minor plaintiffs and their fathers as next friends and also alleged in effect that the next friends were not fully competent or qualified to act as next friends in the case. The motion particularly alleged the following:

“That Eduardo Gallegos can neither read nor write the English language and speaks English very little.
The next friend, Nick Lamas, who also brings the suit individually can neither read nor write the English language nor can he speak the English language with such a degree as to comprehend fully the nature of the proceedings herein.
WHEREFORE Plaintiffs, Eduardo Gallegos, Sr., and Nick Lamas, pray that a Guardian ad Litem be appointed to represent their respective suits herein.”

Although the record does not clearly reflect the action of the trial court on the said motion, counsel for appellee has stipulated that the motion was called to the attention of the trial judge and that he declined to appoint a guardian ad litem for the minor plaintiffs. The case went to trial, therefore, with the fathers continuing as next friends, and all the plaintiffs being represented by one attorney.

After judgment was entered on the verdict, as above-mentioned, the plaintiffs filed original and amended motion for new trial. One ground of the amended motion related to the failure of the trial court to appoint a guardian ad litem for the minor plaintiffs. It was alleged in substance that midway in the trial a settlement offer of the defendant in the amount of $3,500.00 was communicated to plaintiffs’ attorney covering both the claims of the adult plaintiffs, individually, and the claims of the minor plaintiffs; that this offer was recommended to the next friends by plaintiffs’ attorney and they refused to accept it because they wanted more than that sum for themselves. The motion asserted that the failure of the trial court to appoint a guardian ad litem who was qualified to act for the minors and free from conflicts of interest denied due process of law to the minor plaintiffs.

The trial court heard evidence on the Motion for New Trial which included the testimony of the attorney for the plaintiffs and the attorney for the defendant. That testimony substantially supported the allegations of the amended motion. However, it appeared that the alleged offer in settlement actually was a proposal by defendant’s counsel to the effect that if a firm offer were made to settle all of plaintiffs’ claims for $3,500,000, he would recommend acceptance of same by the defendant. Such a firm offer was not made by counsel for plaintiffs because the two fathers acting as next friends would not agree to settle all claims for the amount of $3,-500.00, despite the advice and strong recommendation of their own attorney to accept such sum. The trial court during the course of the trial was advised of the above negotiations and refusal of the tentative proposal of settlement by the next friends.

On the trial of the case both Eduardo Gallegos and Nick Lamas, the next friends, testified. Lamas had no formal education and could neither read, write, speak or understand the English language. He testified with the aid of an interpreter. Lamas testified concerning his own injuries allegedly suffered in the collision involved in this suit as well as injuries allegedly suffered by the minor plaintiffs. Lamas said that he suffered injuries to his head, neck and ribs because of the collision; that he was still suffering from the effects of it; that he was unable to work and didn’t have strength to do so; that he was nervous and unable to concentrate; that his head and neck hurt; and finally, that he was unable to continue his testimony on account of his condition. Lamas was excused temporarily, but was not called further to testify. Before he was so excused, it was developed on cross-examination that he had not held steady jobs over a period of 8 or 9 years; that he had suffered a prior injury on a job at Sugarland, Texas, on account of which he claimed total disability, and was represented on his claim by the same lawyer who appeared for all of the plaintiffs in this case. Gallegos testified that he had no formal education, could not read and write the English language but could speak and understand it, although he had problems with some words; that he had suffered an injury about a year and a half prior to the trial of the instant case, because of being hit on the head with a big steel clamp, and had been under the care of several doctors; that he had also filed a suit because of another injury and had received workman’s compensation ; that he was represented on that claim by the same attorney who appeared for the plaintiffs in this case, that he had also been stabbed at a tavern operated by him and had been hospitalized; and that his employment had been irregular. Gallegos also testified concerning the injuries suffered by his children in the collision involved in this suit, which will be more fully discussed under appellants’ second point.

Rules 44 and 173, Texas Rules of Civil Procedure provide as follows:

“Rule 44. May Appear by Next Friend
Minors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by ‘next friend’ under the following rules:
‘(1) Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.
‘(2) Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.’ ”
“Rule 173 — Guardian Ad Litem
When a minor, lunatic, idiot or a non-compos mentis may be a defendant to a suit and has no guardian within this State, or where such person is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or a guardian who appears to the court to have an interest adverse to such minor, lunatic, idiot or non-compos mentis, the court shall appoint a guardian ad litem for such person and shall allow him a reasonable fee for his services to be taxed as a part of the costs.”

These rules are discussed by our Supreme Court in the case of King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 335 (1956). There the court held in part as follows:

“Under the provisions of Article 2159, Vernon’s Annotated Civil Statutes, a trial court could appoint guardians ad litem only for incompetent defendants, but Rule 173, Texas Rules of Civil Procedure, expressly provides for the appointment of a guardian ad litem for an incompetent plaintiff or intervenor who is represented by a next friend or a guardian who appears to the court to have an interest adverse to the incompetent. The Court of Civil Appeals in this case, 287 S.W. 2d 294, and the Fort Worth Court of Civil Appeals in the case of Henderson v. Applegate, Tex.Civ.App., 203 S.W.2d 548, 552, writ refused, N.R.E., on which the Court of Civil Appeals in this case relied, appear to have overlooked the fact that in carrying Article 2159 into the Rules of Civil Procedure as Rule 173 this Court enlarged the power of the trial court to appoint guardians ad litem for incompetents.
“Respondents contend that the rights of the minor plaintiffs are governed by Rule 44, Texas Rules of Civil Procedure, which, after providing for suits by ‘next friends’, expressly provides that ‘Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.’
“We see no inconsistency between Rule 173 and Rule 44. Actually, one might say that Rule 173 is complementary of Rule 44 since it is expressly designed for a case in which the incompetent is already represented in the suit by ‘next friend’ or ‘a guardian’, but in which the next friend or guardian ‘appears to the court to have an interest adverse to’ that of the incompetent. Rule 173 thus provides for a contingency not covered by Rule 44, to wit, the appearance, after the suit is filed, of a probable conflict of interest between the real plaintiff in interest and his guardian or next friend. This Court cannot say that the trial court erred in concluding that there was a probable conflict of interest between Mrs. King and her minor children.”

It is well settled that the bringing of a suit by next friend for a minor in no way changes his status; his disabilities are are not removed or suspended by bringing such suit, and his interests must, in good faith, be fully protected; he is non sui juris and altogether under the court’s protection. Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (1941); Greathouse v. Fort Worth & Denver City Ry. Co., 65 S.W.2d 762 (Tex.Comm’n App. 1933, holdings approved). In Martin v. Weyman, 26 Tex. 460, 468 (1863) the court said: “ * * * The action of the next friend of a minor is within the control of the court. It may at any time, if deemed for the interest of the minor, substitute a new party as his next friend in place of one with whom the suit was originally commenced. * * * ” In the case of Henderson v. Shell Oil Co., 179 S.W.2d 386 (Tex.Civ.App. Ft. Worth, 1944), reversed 143 Tex. 412, 182 S.W.2d 994 (1944), the trial court ordered that the original next friend who filed suit for an incompetent should be removed and another person be appointed as next friend to take such further action, if any, as the true interests of the incompetent might require. The Court of Civil Appeals held that the order was reviewable and affirmed the judgment, with one judge dissenting. The Supreme Court reversed the Court of Civil Appeals, holding that the order of the trial court was interlocutory and not appealable and that the appeal should be dismissed for want of jurisdiction. However, both appellate Courts recognized the rule authorizing the trial court to remove the next friend who had brought the suit and to substitute another representative in a proper case. The Supreme Court quoted from the case of Cannon v. Hemphill, 7 Tex. 184, 201 (1851) as follows:

“ * * * if the next friend does not lay his case properly before the court by collusion, neglect or mistake, a new bill may be brought on behalf of the infant.”

See also, Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954) affirming in part and reversing in part the judgment of the Court of Civil Appeals, 266 S.W.2d 917.

Neither Rule 44 or 173, T.R.C.P. prescribe the qualifications of a person acting as next friend. Generally speaking, anyone who will undertake the office may be the next friend of an infant and may maintain the suit in that capacity, if it appears to the court to be for the benefit of the infant. 30 Tex.Jur.2d, Infants, Sec. 59, p. 712.

Appellants point to section 110, Texas Probate Code, V.A.T.S., which provides in part as follows:

“§ 110. Persons Disqualified to Serve as Guardians
The following persons shall not be appointed guardians:
******
(c) Incompetents. ******
(d) Those who are themselves parties, or whose father or mother is a party to a lawsuit on the result of which the welfare of the person for whom, or for whose estate, a guardian is to be appointed, may depend.
******
(f) Those who are unable to read and write the English language.
* * * * * *
(h) Those who by reason of inexperience or lack of education, or for other good reason, are shown to be incapable of properly and prudently managing and controlling the ward or his estate. * * * ”

Appellants argue that because the fathers of the minor plaintiffs herein were disqualified under the provisions of section 110, Texas Probate Code, to be appointed legal guardians of their minor children that they are also disqualified to act as next friends for them in this suit. Appellants say that the statute is designed to protect the interests of minors by disqualifying certain types of persons from acting as guardians, and that a minor suing by next friend should be entitled to an adequate and competent legal representative measured by such standards in order that the minors interests may be properly protected. Section 110, Texas Probate Code, is applicable to proceedings in county courts in the exercise of their probate jurisdiction and to courts especially created and organized for the sole purpose of exercising probate jurisdiction, and is not directly applicable to persons bringing suit as next friends for minor plaintiffs under Rules 44 and 173, T.R.C.P. However, the statute furnishes guidelines for ascertaining whether a next friend suing for a minor is competent or qualified to so act. The allegations in plaintiffs’ petition and the separate motion above-mentioned in effect advised the trial court that the fathers who had filed the suit on behalf of the minors as next friends were not competent and qualified to continue to act in such capacity.

We believe that in this case the trial court should have granted the motion for appointment of a guardian ad litem to represent the minor plaintiffs and having failed to do so, in the light of subsequent circumstances, should have granted plaintiffs’ motion for new trial on the ground that the interests of the minor plaintiffs had not been properly represented during the trial by their next friends.

It is apparent that Lamas and Gallegos were not competent or qualified to act as next friends for their minor children, and that they each had an interest adverse to the minors. Lamas was trying to recover as much as he could on account of his own alleged injuries and at the same time represent his minor son on account of injuries suffered by him in the same collision. Lamas’ cause of action for his own injuries was clouded by a history of prior injuries, an irregular work record, and a condition of nervousness because of which he did not complete his testimony. Gallegos was not involved in the accident made the basis of the suit, and the only cause of action asserted by him individually was for medical expenses in connection with treatment of his children. But Gallegos’ testimony involved prior injuries to himself and an irregular work record not directly related to the injuries of his children. The causes of action asserted on behalf of the minors were mixed up with these other matters involving their fathers individually to such an extent that it appears probable that the cases of the minors were prejudiced thereby. It thus appears that the interests of the minors were not properly represented by their fathers acting as next friends either in the conduct of the trial or in connection with consideration of possible settlement of the case. Under these conditions, the trial court should have granted appellants’ motion for. new trial.

Appellants’ point one. is sustained.

Appellants’ point two asserts that the jury verdict, which failed to award damages for plaintiffs’ pain and suffering, was contrary to the overwhelming weight and preponderance of the evidence. This point is also well taken.

On the trial of the case four witnesses testified, i.e., the defendant Mrs. Velsie Foster Clegg, the adult plaintiffs, Nick Lamas and Eduardo Gallegos, and Dr. Ted Shields.

Mrs. Clegg testified in substance that she stopped the school bus she was driving at a stop sign on Hummel Street in Victoria, Texas and then pulled out slowly into Juan Linn Street and was struck by a car approaching from her right driven by Nick Lamas in which the minor plaintiffs were also riding; that she never saw the Lamas car until immediately prior to the collision; that when she stopped her vehicle the view was unobstructed for at least one block, possibly two. This testimony apparently was the basis for the jury findings that Mrs. Clegg failed to keep a proper lookout which proximately caused the collision in question. Such findings, which established liability against the defendant, are not questioned on this appeal. Mrs. Clegg further testified that all of the children got out of the Lamas car under their own power; that an officer came on the scene and inquired if anyone was hurt; that one girl had a little bump on her arm; that she said she didn’t have it before and the police said “perhaps we better put her in the taxi over there and take her to the Citizens Hospital and have her x-rayed.” Mrs. Clegg said that no one else identified themselves as being injured in any way.

Nick Lamas testified through an interpreter that at the time of the collision eight persons were riding in his car: Lamas, his son David and six children of Eduardo Gallegos; that the school bus ran a stop sign, was right on him as he entered the intersection; that he tried to turn to his right; that he applied his brakes and the bus hit him when his car was stopped; that six of the children were in the back seat and Geneva Gallegos was in the front seat with him; that his left front fender and left front bumper were damaged; that his car couldn’t be repaired and wasn’t used again; that no one was thrown out of his car “but the back seat came over on top of us that were sitting on front.” Lamas further testified that the children were crying after the collision; that Geneva Gallegos was taken by taxicab right away to the hospital; that the other children were taken to Doctor Ted Shields that same day about noon and examined by him; that David Lamas was later taken to the hospital; that he and all the children had been back to Dr. Shields many times since the day of the accident. Lamas further testified concerning his own injuries and treatment as well as those of his minor son David. Lamas said that his son stayed in the hospital four or five days and had been regularly treated by the doctor about twice a week; that he had received medical bills for David.

Eduardo Gallegos testified that he is the father of six minor children who were involved in the automobile accident in question; that Nick Lamas brought the children, except Geneva, in a taxicab to his home, around noon on the day of the accident; that all the children, except Minnie, were crying and he was disturbed about them; that he and his wife took them to the office of Dr. Ted Shields right away, where they were examined; that the children were all in good health prior to the accident; that they had only had usual childhood diseases and treatment for same. He further testified concerning the condition and complaints of his children and that he took them to the doctor for further treatment when necessary or when the doctor gave them appointments; that the children had taken the medicines prescribed by the doctors; that he had observed his children since the accident and had seen them in pain; and that he had incurred expenses for their treatment as shown by the bills in evidence.

Dr. Ted Shields testified in substance that he examined and treated all of the minor children on the day of the accident in question and thereafter. His testimony as to each of them will be briefly summarized.

Eduardo Gallegos, Jr., age 11. This boy complained of pain to his left knee, neck, chest, stomach and to the right inguinal area, where hernias are more frequent. The doctor testified he found a bruise on the left knee, that Eduardo had a muscular sprain to the neck, bruising to the chest and abdomen, and a strain to the inguinal area (lower abdomen). The doctor advised observation at home and that mild analgesics be used. Eduardo returned several times for further examination, complaining of pain in the neck and abdomen. The doctor said that the knee and chest have resolved themselves, and this was true also of the lower abdominal pain which was persistent for a while. The doctor saw Eduardo Gallegos, Jr. a total of eleven times. Eduardo continually complained of pain in neck and abdomen. On one occasion the doctor found and noted muscle spasm on the neck and on another that the neck was stiff with some spasm. The doctor said these were objective findings. Aspirin was prescribed for pain. X-rays were made. The doctor testified that the treatment was necessary and the charges made were reasonable. His bill was $78.00 and the x-ray bill $15.00, aggregating $93.00. These bills were admitted without objection. The jury allowed $46.50, or one-half, for these items. The doctor gave his opinion that Eduardo had suffered pain in the past and would do so in the future on account of his injury, but that there should not be any disability to work.

Geneva Gallegos, age not shown by the evidence. This girl complained of pain to her chest, right and left. She had a small laceration on her chin. The doctor made a diagnosis of mild cerebral concussion, probably based upon what she told him. He suspected a neck sprain or whiplash type injury to the neck but found no objective evidence of same. The doctor put Geneva Gallegos in the hospital for observation on account of the head injury. He examined her several times thereafter and she complained of pain to her head, back and spine. The doctor did not list any objective findings. Although Geneva continued to complain of pain to her chest and neck, the same improved and the doctor thought her condition much improved. She neglected to tell him she was pregnant until she was about eight months in that condition. Statements were admitted into evidence without objection reflecting charges for doctor $111.00, X-rays $37.50, prescriptions $11.95, and hospital $47.00, aggregating $207.95, which charges the doctor said were necessary and reasonable for treatment of the injuries. The jury allowed $101.97 for these items. The doctor testified that the injuries and conditions found had been painful but would be minimal in the future and would not affect future employment.

Joe Frank Gallegos, age 3. The doctor found that this boy had bruises to his right cheek, a small blood clot under the skin in his left eyebrow, and a whiplash type sprain to his neck. There were objective findings, particularly the hematoma. The doctor continued treatment from July 27, 1965 up to February 1966. The boy complained of pain in the neck and general body soreness. The blood clot finally became firm and the doctor discussed excising it, but had not done so at the time of trial. The doctor said the injuries were painful and will be so in the future. On one occasion the doctor observed some cervical muscle spasm, which is an objective finding. The doctor said this boy will have difficulty with pain in the neck and with the blood clot which might or might not have to be removed. The whiplash injury is repairing itself but will cause pain in the future. The doctor testified as to reasonableness and necessity of the bills and treatment. The bills, admitted without objection, were doctor $91.00, X-ray $10.00, prescription $2.75, aggregating $103.75. The jury allowed $51.50 for these items.

Lilo Gallegos, age 5. The doctor found bruises on this boy’s face and chest and said he had abdominal injury, a blow to the stomach. Later, the doctor made diagnosis of a fracture of what he called the costo-chondral junction (in the area where the rib and cartilage come together in one rib). An objective finding was made as to this condition. The doctor prescribed pain medicine, but did not use a rib belt. The boy complained of abdominal pain and nausea. The doctor said there was muscle spasm to the abdomen. Finally the doctor said the boy had suffered multiple bruises, with some minor internal injuries that did not give him any trouble. The boy was still complaining in February 1966. The objective findings have diminished and the boy had reached his maximum recovery. Expenses were $68.00 for the doctor and $13.75 for medicines, aggregating $81.75. The jury allowed $40.87 for these items.

Lupe Gallegos, age 8. This girl complained of pain to the left eye, left shoulder, left knee and neck. The doctor made diagnosis of whiplash type strain to the neck and bruising to the left knee, the left eye and left shoulder. The patient continued to complain of pain. On one occasion she complained that her neck popped when she bent it forward and backward and the doctor said he could feel this popping. The x-rays showed no dislocations or fractures. The doctor put her on conservative treatment. In February 1966 the doctor found that the muscles in the back of her neck were still kind of tight. The doctor said this girl had suffered pain in the past and would have pain in the neck for a number of months, but that she was essentially recovered. The bills for this girl were $68.00 for the doctor and $27.00 for laboratory work, aggregating $95.00. The jury allowed $47.50 for these items.

Minnie Gallegos, age 10. The doctor said that this girl had bruising to the left face and right knee, and he made notation of a painful and stiff neck and that she was nervous and scared. The doctor made diagnosis of contusions of left face and right knee, and pain and stiff neck. There were objective findings, the patient having muscle spasm to the back neck muscles. The doctor prescribed observation at home and aspirin type compounds. About three days after the accident the doctor placed this girl in the hospital for five days because she was complaining of chest pains; and nervousness. She had some seizure type episodes. In his final diagnosis the doctor called these petit mal seizures. The doctor suspected that this must have something to do with a little bit harder blow to the head than he had realized on the first examination. The petit mal was an objective finding. The doctor continued to see this girl at his office after her release from the hospital. She continued to complain of dizziness in the head, blurred vision and pain in the neck. She also vomited. Her symptoms indicated something' wrong inside the skull, possibly bleeding. Dr. Shields referred the patient to Dr. Ehlert for eye examination. In February 1966 this girl complained that she could not see at times and Dr. Shields had his secretary write for an appointment for the patient with Dr. Hardy, a neurosurgeon in San Antonio, but did not know what had happened in this connection. The doctor was uncertain concerning future medical expenses. He said that this girl should have further examinations and tests by Dr. Hardy or someone else. The doctor said she had suffered pain in the past and would in reasonable probability suffer pain in the future for a year or so; that the patient had improved but still had the problems with her head and eyes; that she is not an epileptic. The bills, admitted without objection, were doctor $68.00, laboratories $27.00, prescriptions $7.95, aggregating $102.95. The jury allowed $56.47 for these items.

David Lamas, age 4. Shortly after the accident the doctor found that this boy was lethargic or drowsy; had muscle spasm in his abdominal wall and in his neck; was dizzy, stunned and had head, neck and chest pain. The doctor put him in the hospital for two full days, where his condition improved. The doctor examined and treated him thereafter, his complaints being chiefly of neck and abdominal pain. The neck has been tender. His most severe complaint was about abdominal pains. The boy later had a hand injury not connected with the accident in question. The doctor said that the pain and suffering in the future, might last for two or three months but would not amount to anything; that treatment would be minimal, probably aspirin; that he would expect no permanent disability. Expenses for this boy were $104.00 for the doctor and $44.00 for hospital, aggregating $148.00. The jury allowed $74.00 for these items.

The cross-examination of Dr. Shields tended to show that many of the complaints of the children were subjective and that there were comparatively few objective findings. However, after considering and weighing all of the evidence, including the testimony of the doctor, we believe that the findings of the jury on special issue No. 18 that there was no compensable pain and suffering on the part of each minor plaintiff are against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. See Bolen v. Timmons, 407 S.W. 2d 947 (Tex.Civ.App., Amarillo, 1966, n. w.h.); Edmondson v. Keller, 401 S.W.2d 718 (Tex.Civ.App., Austin, 1966, n.w.h.); Floyd v. Organ, 359 S.W.2d 190 (Tex.Civ. App., Austin; 1962, wr.ref., n.r.e.); Laney v. Hardy, 265 S.W.2d 609 (Tex.Civ.App., El Paso, 1954, n.w.h.); Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954), affirming the Court of Civil Appeals (266 S.W.2d 917) as to reversal and remand of the minor plaintiffs’ case and reversing and rendering as to the adult plaintiffs.

In addition, the jury findings on special issue No. 19 are inconsistent with the findings on issue No. 18. In answer to issue No. 19 the jury found that the amounts above set out would conpensate the respective fathers of the seven minor children involved for reasonable and necessary medical expenses incurred in the past and which in reasonable probability would be incurred in the future as a direct and proximate result of the injuries suffered by the minor plaintiffs as a direct and proximate cause of the collision. Thus there is a finding of injury in each case and necessity for treatment as a result of the accident. Although the injuries of said children varied in degree and extent, it appears from the evidence herein that they would ordinarily and in reasonable probability be accompanied by some physical pain. There is no evidence in this case which would tend to show the contrary. In order to uphold the jury finding on special issue No. 18 (that nothing should be awarded for physical pain and suffering on the part of the minor plaintiffs) we would be required to hold that a preponderance of the evidence establishes that the injuries, including lacerations, bruises, hematoma, muscle spasm and fracture, which required the expenses for the doctor, hospital and other services (as found by special issue No. 19) were totally unaccompanied by any physical pain. We are unable to so hold on the record presented here. On the question of an award for medical expenses without an award for pain and suffering, see 20 A.L. R.2d 276 and Vol. 3, Later Case Service A.L.R.2d 148.

In this case the liability of the defendant was established by the jury findings as to all the plaintiffs except Nick Lamas individually. We are not here presented with a question of inadequacy of an award for some amount of damages, but whether the complete denial of any damages for physical pain was proper. The applicable rule is stated in Edmondson v. Keller, Austin, Tex.Civ.App., 401 S.W.2d 718, 720, as follows:

“The amount of damages is largely within the jury’s discretion. However, they must award something for every element of damage resulting from an injury. Evers v. Langerhans, Tex.Civ.App., 122 S.W.2d 208, n.w.h.; Clark v. Spurdis, Tex.Civ.App., 258 S.W. 881, error dism.”
Appellants’ point two is sustained.

We have no alternative but to affirm the judgment as to Nick Lamas, individually, since the findings convict him of contributory negligence proximately causing the collision in question, which preclude a recovery on his cause of action individually. But this result does not affect the cause of action asserted on behalf of his minor son David Lamas. See Thacker v. J. C. Penney Company, 254 F.2d 672 (5 Cir.1958) and the Texas cases therein cited.

The judgment of the trial court will be affirmed as to Nick Lamas, individually, and will be reversed and remanded for new trial as to all other appellants.


author: MOORE, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY et al., Appellants, v. Willard W. DEAN, Appellee.
    No. 269.
    Court of Civil Appeals of Texas. Tyler.
    June 22, 1967.
    Rehearing Denied July 20, 1967.

      Jackson, Walker, Winstead, Cantwell & Miller, Louis P. Bickel, Dallas, for appellants.
    George L. Schmidt, Houston, for appel-lee.
   MOORE, Justice.

Plaintiff, Willard W. Dean, brought suit for damages against defendants, Missouri Pacific Railroad Company and its employees, for personal injuries alleged to have been sustained by him when his automobile collided with defendant’s freight train which was stopped on a public crossing in the City of Palestine, Texas. In view of the fact that the railroad company and its employees assert common defenses, the parties will hereinafter be referred to as plaintiff and defendant.

The basis upon which plaintiff predicated his suit for damages was that the defendant railroad company knew, or by the exercise of ordinary care should have known, that the railroad crossing in question was one which was a more than ordinarily dangerous nighttime crossing and by reason thereof, defendant was negligent in failing to equip the crossing with automatic warning signals and in failing to station a flagman at the crossing. In addition to those allegations, plaintiff also alleged that the defendant was negligent in failing to place some type of light-reflecting paint on the side of its freight cars and finally that the employees of the company were negligent in failing to open the crossing by breaking the train. Defendant denied the allegations of negligence and specially pleaded that plaintiff was guilty of contributory negligence.

The case was tried before a jury. In response to the special issues, the jury found (1) that the plaintiff suffered bodily injury as a result of the collision; (1-A) that the conditions surrounding the crossing were such as to render it more than ordinarily dangerous as a nighttime crossing; (1-B) that the defendant knew, or by the exercise of ordinary care should have known, that the crossing was more than ordinarily dangerous; (2) that the defendant failed to equip the crossing with automatic warning signals; (4) that the defendant failed to station a flagman at the crossing; (3, 5) that such negligence was a proximate cause of the plaintiff’s injuries; (6) that the failure of the defendant to open the crossing by breaking the train was negligence; (7) which was a proximate cause of the plaintiff’s injuries; (8) that defendant was negligent in failing to place a light-reflecting paint on the car which plaintiff struck, and (9) that such negligence was a proximate cause of plaintiff’s injuries. The jury exonerated the plaintiff of numerous acts of contributory negligence and found that the occurrence was not the result of an unavoidable accident. In answer to Special Issue No. 10, however, the jury found the plaintiff negligent in failing to keep a proper lookout, but found in response to Special Issue No. 11 that such negligence was not a proximate cause of the collision.

At the conclusion of the evidence, the defendant made a motion for instructed verdict on the ground that there was no evidence to support the submission of extra hazardous crossing and the negligence issues based thereon also on the ground that plaintiff was guilty of contributory negligence as a matter of law. The motion was overruled. After verdict, defendant moved for judgment notwithstanding the verdict, requesting the court to disregard the jury’s findings to the effect that the crossing was more than ordinarily dangerous and also requesting the court to disregard the jury’s answer to Special Issue No. 11 wherein the jury found that the plaintiff’s contributory negligence in failing to keep a proper lookout was not a proximate cause of the collision. The trial court overruled the motion and rendered judgment for the plaintiff based on the verdict, awarding damages in the sum and amount of $82,300.00.

After its motion for new trial had been overruled, defendant perfected this appeal and has brought forward 81 points of error seeking a reversal of the judgment. Under the first seven points of error, defendant takes the position that the contributory negligence of the plaintiff in failing to keep a proper lookout was, as a matter of law, a proximate cause of his injury irrespective of the fact that the jury found to the contrary. It asserts, therefore, that the trial court erred in refusing to disregard the jury’s answer to Special Issue No. 11 and in refusing to enter judgment for the defendant notwithstanding the jury’s verdict. The finding that plaintiff was guilty of contributory negligence stands unchallenged and therefore the only question presented under these points of error is whether plaintiff’s negligence in that respect was, as a matter of law, a proximate cause of his injury.

Ordinarily, the question of whether the plaintiff’s contributory negligence is a proximate cause of his injury is a question of fact, but in some instances the question becomes one of law. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Cave v. Texas & Pacific Railway Company, (Tex.Civ.App.) 296 S.W.2d 558-560; Geo. D. Barnard Company v. Lane, (Tex.Civ. App.) 392 S.W.2d 769.

Proximate cause exists as a matter of law where the circumstances are such that reasonable minds could not arrive at a different conclusion. Texas & N. O. R. Co. v. Stewart, (Tex.Civ.App.) 248 S.W.2d 177; Wichita Valley Ry. Co. v. Fite, (Tex.Civ. App.) 78 S.W.2d 714.

In determining whether or not plaintiff’s negligence in failing to keep a proper lookout was a proximate cause of his injuries as a matter of law, we must consider all the facts and circumstances presented by the evidence before us in a light most favorable to the plaintiff and then determine whether or not they are such that reasonable minds could reach different conclusions.

The evidence shows that the accident occurred at approximately 4:35 o’clock on the morning of March 9, 1964, at a point where defendant’s railroad track intersects Texas Avenue in Palestine, Texas. Plaintiff, a police officer for the City of Palestine, was engaged in routine patrol duty, driving a city-owned patrol car. He testified that he had been employed by the city for 8 or 9 years and had traveled over the crossing in question “hundreds” of times, both day and night. He testified that shortly before the accident, he had gone on duty and had driven his patrol car down Oak Street in a southerly direction toward the intersection of Texas Avenue which runs generally east and west. When he arrived at the intersection, he turned to his left and headed west on Texas Avenue toward the railroad crossing. The train in question contained 76 cars and had arrived in Palestine at approximately 4:00 A. M., coming from a southerly direction and was proceeding north. The engineer of the train had been instructed to pull the train as far north as possible and to stop the same so that the switching crew could then take over prior to performing certain switching operations. The 59th car in the train behind the engine was a car that is known as a “gondola” or a “coal” car. When the train stopped, it was this car that stood across and blocked the Texas Avenue crossing and it was this car with which the plaintiff collided. The evidence shows that Oak Street, oh which he traveled for some distance just prior to the accident, runs parallel to the railroad tracks and is approximately 75 feet west of the tracks. The evidence further shows that the elevation of Oak Street in the area in question is some 4 to 6 feet above the elevation of the railroad tracks until the street reaches a point near the intersection with Texas Avenue where it then levels out. The elevation at the intersection was shown to be approximately one foot higher than the railroad track. Plaintiff admits in his testimony that as he drove along Oak Street there was nothing tc obstruct his view of the railroad track for a distance of several hundred feet and that he could have seen the train standing on the track had he looked in that direction prior to turning to his left on Texas Avenue. The gondola car in question was painted black and had white lettering on the side thereof near each end of the car. It was 53 feet 8 inches long and stood 7 feet 3 inches above the rail. The bottom of the car at the center was 19 inches above the rail and at the time of the accident stood across the street blocking practically all of the traveled portion thereof. On each side of the gondola car were box cars which were several feet higher than the gondola car. It was undisputed that there was no obstruction on either side of Texas Avenue which would be calculated to block the view of the standing train. It was also undisputed that the usual cross-arm railroad crossing signs had been erected at the crossing, but that no flagman was present nor were there any automatic warning signals installed at the crossing. On the side of the crossing from which plaintiff approached, there was a street light with a 189 watt bulb approximately 67 feet from the point of collision. Also, there were two other similar street lights located at a distance of approximately 146 feet and 240 feet respectively. In addition to those lights, there was also a 1,000 watt railroad yard light on the side from which the plaintiff approached which was located approximately 150 . feet north of Texas Avenue. The evidence further shows that the distance between the point of the intersection of Oak Street and Texas Avenue to the point of collision was approximately 80 feet. At the place where the railroad tracks crossed the street, there were five tracks which crossed the street at right angles. The train was occupying the third track from the intersection making it necessary for the plaintiff to have crossed over two of the tracks before the collision. The weather condition was described by the plaintiff as being “dark and rainy.” According to other witnesses, a “light drizzly” rain was falling. In connection with the speed of his vehicle, plaintiff estimated that immediately before the impact, he was driving at approximately 20 to 30 miles per hour. According to the testimony of an eye witness to the collision, however, plaintiff was traveling at a speed of only eight to ten miles per hour. At any rate, it does not appear that plaintiff was traveling at a high rate of speed because even after the impact, the right front headlight continued to burn and the automobile was backed away from the train under its own power. Also, the damage to the patrol car does not appear to have been extensive in view of the fact that the repairs amounted only to the sum of $243.59. In describing the situation immediately prior to the accident, plaintiff testified as follows:

“Q Now, when you turned over there off of West Oak on to Texas Avenue crossing, there across these tracks, what could you see?
“A See the lights.
“Q Tell us what you could see?
“A Just like you look down and what you would see was lights and clear. I didn’t see anything.
“Q Was there anything there that would block your travel ?
“A I didn’t see anything there, period.
“Q All right. Now, is that a street light on past the railroad crossing?
“A I guess it was, because I could see the light, I guess that street light, that’s all—
<( * * *
“Q All right. As you were going down West Oak and you had made your turn to go to Texas Avenue, about what speed were you going?
“A I don’t know whether the street light or my headlight, my headlight — I probably was going about—
* * *
“Q There is mention of a light and lights from over in here.
“A About the light, it was clear, my lights, I could see in front of me, I couldn’t see any obstruction, it looked like there was light on the other street to me it was just like — I’ve been across there, like you say, lots of time, there wasn’t nothing there. But, my brother and police said I hit that black car, so I hit it.
« * * *
“Q Okay. You say, I believe you said, it was light and clear over across the tracks.
“A I didn’t mean the weather or anything like that. It looked like the tracks was clear. I could see by my headlights there wasn’t anything, it looked like down there it was clear, I didn’t see nothing.
“Q You could see the distance of your headlights ?
“A I don’t know whether I could the distance or not. * * * ”

Plaintiff was asked why he did not see the train.

“A I don’t think probably anybody could have seen it. It was just that the type of weather and the color of the old car, old train, and they didn’t have any lights or no one there to signal or no no nothing, no signals * * *
“Q All right. Now, let’s go back out to that street crossing. Did you ever see any train across there ?
“A No sir. I can truthfully say I didn’t see any at all.”

Plaintiff argues in his brief that the street light above the gondola car created an illusion, leading him to believe the crossing was unobstructed. It is not clear from his testimony whether he saw one street light or several; however, according to the pictures introduced by the plaintiff, there appears to be only one street light in the area across the tracks. Nowhere in his testimony did he say that the light blinded him or distracted his attention or that the light was such that it prevented him from seeing the train. There was no testimony offered showing that anyone else had ever suffered any accident or near accident at the crossing.

As we view the plaintiff’s testimony, he says that even though the night was dark and raining and even though there was a distant street light visible above the gondola car, he nevertheless saw the crossing in his headlights and it appeared to be clear.

We know as a matter of common knowledge that a railway freight car of this size is not easily hid or obscured even by darkness and rain. The jury found that the reason he failed to see the train was because he failed to keep a proper lookout. Plaintiff says he looked but did not see.

It has been held that one may not claim the right to recover because he has looked and did not see, if the conditions are such that had he looked he must have seen. Lackey v. Gulf, C. & S. F. Ry. Co., (Tex. Civ.App.) 225 S.W.2d 630.

In Gulf, C. & S. F. Ry. Co. v. Gaddis, (Tex.Com.App.) 208 S.W. 895, 896, the court said:

“ * * * It is well settled in this state that one who crosses a railroad track must, as a matter of law, exercise some degree of care for his own safety.
“All men in possession of their faculties are charged with knowledge that a railroad track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such action and the use of such care as ordinary prudence would dictate in so doing. Where no care whatever has been exercised, our courts uniformly hold that contributory negligence exists as a matter of law, and recovery is denied. * * * ”

The general rule is that the negligent conduct on the part of the person injured will be held to he a proximate cause of his injury when, but for this negligence, the injury would not have been inflicted, and the injury ought reasonably to have been anticipated as a consequence of the negligence, in the light of attending circumstances. 40 Tex.Jur.2d, Sec. 109, page 619.

It appears to us that the evidence as outlined above conclusively shows that reasonable minds could not arrive at a different conclusion other than that the failure of the plaintiff to keep a proper lookout was a proximate cause of the accident and resulting injury. He had crossed the track many times and was thoroughly familiar with the crossing. The crossing was practically level so that the lights on the plaintiff’s automobile would have shown against the gondola car. We think that had plaintiff kept such a lookout as would have been kept by a person of ordinary prudence under the same or similar circumstances, he would have detected the presence of the train in time to have avoided the collision. As we view the evidence, plaintiff’s failure to keep a proper lookout was a proximate cause of his injuries as a matter of law. Texas Mexican Ry. Co. v. Hoy, (Tex.Com.App.) 24 S.W.2d 18; Texas & N. O. R. Co. v. Stratton, (Tex.Civ.App.) 74 S.W.2d 741; Wichita Valley Ry. Co. v. Fite, supra; Kypfer v. Texas & P. Ry. Co., (Tex.Civ.App.) 88 S.W.2d 528; Cross v. Wichita Falls & S. R. Co., (Tex.Civ.App.) 140 S.W.2d 567; Lackey v. Gulf, C. & S. F. Ry. Co., supra; Texas & N. O. R. Co. v. Stewart, supra; Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W. 2d 925; Cave v. Texas & Pacific Railway Company, supra; Missouri-Kansas-Texas Railroad Company v. Wagner, (Tex.Civ. App.) 400 S.W.2d 357; 84 A.L.R.2d 813, 873.

It is a well settled principle of law that a plaintiff who is contributorily negligent may not recover damages where his own act of negligence is found to be a proximate cause of his injury. Under the law of this state, contributory negligence is an absolute defense, no matter how negligent the defendant may have been. McFall v. Fletcher, 138 Tex. 93, 157 S.W.2d 131; 40 Tex.Jur.2d, Sec. 97, pp. 602, 603.

In view of the foregoing conclusions, we find it unnecessary to discuss the other questions presented by the defendant. We think the trial court should have disregarded the finding made by the jury that the plaintiff’s injury was not proximately caused by his failure to keep a proper lookout and that after having disregarded such finding should have granted defendant’s motion for judgment notwithstanding the verdict.

For the reasons stated, the judgment of the trial court must be reversed and judgment rendered denying plaintiff recovery.

Reversed and rendered.


author: KLINGEMAN, Justice.

text:
    C. H. AUSTIN et al., Appellants, v. H. T. GALLAHER, Appellee.
    No. 14583.
    Court of Civil Appeals of Texas. San Antonio.
    June 14, 1967.
    Rehearing Denied July 19, 1967.

      Lloyd, Lloyd, Dean & Ellzey, Alice, for appellants.
    Lagerquist, Shaw, & Davis, San Antonio, Perkins, Floyd, Davis & Oden, L. H. Warburton, Jr., Alice, for appellee.
   KLINGEMAN, Justice.

Action of H. T. Gallaher against C. H. Austin and C. H. Austin, Jr., for breach of contract involving an alleged sale of certain candy vending machines. Trial was by the court without a jury and judgment entered in favor of plaintiff against defendants for the sum of $3,000.00, interest and costs. No findings of fact or conclusions of law were requested or filed by the trial court.

The C. H. Austin Candy Company was the distributor for the Tom Houston Peanut Company and operated and maintained a large number of candy vending machines over an area covering a substantial part of South Texas. C. H. Austin, also known as C. H. Austin, Sr., was the owner of such business, and his son, C. H. Austin, Jr., worked in that business, his exact capacity being somewhat unclear from the record, but there is some evidence that he was the general manager. H. T. Gallaher, the plaintiff, owned a number of refrigerated candy vending machines and had been operating them at military posts in the San Antonio area. He lost the concessions contract and desired to sell his machines, and this suit arose out of a purported sale of some of such vending machines. For purposes of convenience, the parties herein will be referred to as designated in the trial court.

In a non jury case, where appellant contests the trial court’s judgment without requested findings of fact and conclusions of law, an appellate court must assume the trial court’s findings were all in support of its judgment, and the judgment must be affirmed if there is any evidence of probative force to support it on any theory authorized by law. City of Abilene v. Meek, Tex.Cr.App., 311 S.W.2d 654, writ ref’d; Western Woods Products Co. v. Bagley, Tex.Civ.App., 274 S.W.2d 111, writ ref’d n. r. e.; 4 Tex.Jur.2d, Appeal and Error, § 747 (1959).

Defendants’ first point of error is that plaintiff, H. T. Gallaher, testified he made no trade of any kind or character with defendant C. H. Austin, consequently, plaintiff was not entitled to recover judgment against C. H. Austin for any amount, and the trial court erred in rendering judgment in favor of plaintiff against C. H. Austin. Plaintiff contends that the so-called “admission” relied upon by defendants was taken out of context and does not correctly set forth the full extent of plaintiff’s testimony, and is not an admission as contemplated under Texas law.

The case of United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, writ ref’d, sets up five tests to be met before a declaration can be held to be a judicial admission and thereby conclusive against the party making same. One of these tests is that the statement must be deliberate, clear and unequivocal. Plaintiff in one instance, on initial cross-examination, testified that C. H. Austin, Sr., never made any agreement to buy the machines from him. However, defendants later chose to cross-examine plaintiff further on this matter and, after first affirming his statement as to C. H. Austin, Sr., he was asked “and so you are not holding him to anything in this case?” to which the plaintiff replied, “only as through Junior who I regarded as his representative after assurance at the first visit, when he said Junior is going to have to handle it.” In addition, plaintiff’s testimony on direct examination is to the effect that he negotiated and contracted with both C. H. Austin, Sr., and C. H. Austin, Jr. The Court in U. S. Fidelity & Guaranty Co. v. Carr, supra, held that “If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury or the judge sitting without a jury as in the case of an ordinary witness.” In Leonard v. Smith, Tex.Civ.App., 186 S.W. 2d 284, no writ, the Court held that the rule that the testimony of a party to a lawsuit must be construed as binding upon him is not controlling where he subsequently modifies or explains his former testimony, and the probative value of the testimony is held to be a question of fact for the jury or the trial court. See also 2 McCormick & Ray, Texas Evidence, § 1128 (2d ed.1956). Considering all of plaintiff’s testimony, we think defendants’ first point of error is without merit and it is overruled.

Defendant’s second and third points of error will be discussed together, as much of the evidence is germane to both points. Defendants’ second point is that the trial court erred in rendering judgment against defendant C. H. Austin, because the evidence shows that defendant C. H. Austin, Jr., was only an employee of C. H. Austin, his father, and is wholly insufficient to show that C. H. Austin, Jr., had any authority to purchase the machines in controversy. Defendants’ third point of error is that the trial court erred in rendering judgment against defendant C. H. Austin, Jr., because the evidence is insufficient to show that C. H. Austin, Jr., ever agreed to purchase from plaintiff the machines in controversy.

Defendants assert that the burden was on the plaintiff to prove that C. H. Austin, Jr., had authority from his father, C. H. Austin, to buy such machines, and that there is no evidence that C. H. Austin, Jr., had any such authority. Plaintiff asserts that the trial court did not err in rendering judgment against C. H. Austin, Jr., a4 the evidence clearly shows that plaintiff had a contract with both C. H. Austin and C. H. Austin, Jr., as co-principals, or, in the alternative, that C. H. Austin, Jr., was clothed with actual and apparent authority by Austin, Sr., when the contract was entered into. In the absence of any evidence of actual authority, either express or implied, in an alleged agent, one may still be held liable as a principal on the grounds that such alleged agent has apparent authority to act, and “if the principal has thus clothed the agent with such apparent authority, he will not be heard to assert, as against third persons dealing with the agent on the 'strength of such authority, that he did not intend to vest such authority in the agent.” 2 Tex.Jur.2d, Agency, § 44 (1959). “Estoppel, as it relates to ‘apparent authority,’ has been defined as follows: ‘When one, by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring, against the latter, a different state of things, as existing at the same time.’ ” Collins v. San Antonio Food Products & Produce Co., Tex.Civ.App., 188 S.W.2d 888, writ dism’d; 2 Tex.Jur.2d, Agency, § 43.

A brief résumé of the pertinent evidence in this regard discloses that plaintiff, on or about February 1, 1963, contacted C. H. Austin, Sr., at his place of business, relative to the sale of these machines. After some discussion, Austin, Sr., called in his son, C. H. Austin, Jr., and some pictures of the machines were examined. Plaintiff testified that on such occasion some discussion was had as to the price of the machines, and plaintiff stated that he would take $200.00 a machine if they only took part of the machines, but if they wanted all of the machines he would take $150.00 each. Plaintiff further testified that he was then told that they were interested and either Senior or Junior would come to San Antonio the following week to look at the machines, and then make some arrangements to purchase them if they were satisfactory to whoever came up. Thereafter, on or about February 12, 1963, Austin, Jr., came to San Antonio and inspected some of the machines. Plaintiff testified that after such inspection, Austin, Jr., stated that they would be willing to pay for such machines at the rate of $2,000.00 per year for the 70 machines at $150.00 each, and plaintiff agreed to such proposition, and they shook hands on it; which testimony is corroborated by a third party witness, Emmett Mims, who testified that he was present on such occasion. Plaintiff thereafter proceeded to key alike all 70 machines. Shortly thereafter, C. H. Austin, Jr., came to San Antonio and picked up ten machines which were taken to Alice, and some, if not all, placed in various locations served by the C. H. Austin Candy Co. Sometime thereafter, Austin, Jr., again went to San Antonio and looked at additional machines, and on such occasion Austin, Jr., and plaintiff went to Southwestern Motor Transport in San Antonio, where some arrangements were made for shipping additional machines to Alice, and plaintiff testified that Austin, Jr., told him that such freight company was going to handle all of the rest, ten at a time.

Plaintiff thereafter made delivery of ten more machines to the docks of Southwestern Motor Transport in San Antonio on May 5, 1963, consigned to C. H. Austin in Alice. Such machines were transported to Alice by such freight company but were never picked up. The testimony is conflicting as to why. such machines were not picked up or anything done about them. Plaintiff testified that Austin, Jr., told him it was because he was having a dispute with the freight company as to the freight charges, and Austin denied this. A letter from the Alice representative of the freight company to plaintiff, dated June 24, 1963, was introduced in evidence and states that the ten machines were being held at Mr. Austin’s request, as he was building a new building, and were to be delivered that week and the freight charges collected, but that on said date of June 24 Mr. Austin called and said that he was refusing the machines and would not accept them. Prior to such date, plaintiff had written Austin, Jr., on May 18, 1963, that another ten machines were ready, and on May 19 they were delivered to the docks of Southwestern Transport in San Antonio, consigned to C. H. Austin. On May 20, 1963, C. H. Austin, Sr., called plaintiff in San Antonio and talked to plaintiff’s wife and told her to stop this shipment of machines; that he did not want any more machines, and these machines were never shipped. Plaintiff then went to Alice and talked to Austin, Sr. The testimony is conflicting as to just what transpired; plaintiff testified that Austin, Sr., told him that he did not want any more machines, and tried to get him to reduce the price of the first twenty machines, which testimony Austin Sr., denied.

Both defendants deny that Austin, Jr., had any authority to enter into any purchase agreement with regard to such machines, and both deny that they ever entered into any such purchase agreement. A considerable part of defendants’ testimony pertains to their contention that there was no contract, and it is their contention that such machines were being tested on a trial basis; that such machines were represented to them as being in good condition but that actually they were defective in various respects. Plaintiff denied any such trial agreement, and denies that the machines were defective. The matter of the authority of Austin, Jr., to enter into any agreement or contract to purchase such machines does not appear to have been raised until the lawsuit was filed, and as late as June 20, 1963, which is almost five months after the initial negotiations, defendants’ attorney, in response to a letter written by plaintiff’s attorney on June 19, 1963, to both defendants, making demand for payment of $3,000.00, states in a letter to plaintiff’s attorney, that C. H. Austin, Sr., and C. H. Austin, Jr., had brought in such demand letter, and “They told me that when Mr. Gallaher made the agreement to sell the refrigerated vending machines to them he represented to them that the machines were and would be in perfect mechanical condition when they were delivered. It was on the basis of this representation the agreement to purchase the machines was made.” This letter contradicts defendants’ contentions that there was no contract or agreement and that Austin, Jr., did not have any authority to enter into any type of purchase agreement.

While the testimony was conflicting in most respects, the trial court, having heard all of the evidence with regard to all disputed issues, including that as to the existence of a contract and as to the authority of C. H. Austin, Jr., rendered judgment for plaintiff. In determining if the implied findings of the trial court have support in the testimony, as challenged by defendants, it is our duty to consider only the testimony most favorable to the findings and disregard all to the contrary. O’Ferral v. Coolidge, 149 Tex. 61, 228 S.W.2d 146 (1950); Friendship Baptist Dist. Ass’n v. Johnson, Tex.Civ.App., 230 S.W.2d 598, writ ref’d n. r. e.; General Life Ins. Co. v. Mathes, Tex.Civ.App., 100 S.W.2d 1044, writ dism’d; 4 Tex.Jur.2d, Appeal and Error, § 747 (1959). The record discloses some evidence of probative value to support the implied findings and judgment of the trial court. Defendants’ second and third points of error are overruled.

Defendants’ fourth and fifth points of error are that the trial court erred in denying defendants’ motion for new trial because of new and additional evidence, and in support thereof rely upon an affidavit made by Jesus Mendoza and an affidavit made by Mrs. Mary C. Austin, which were attached to and made a part of defendants’ motion for new trial. The affidavit of Jesus Mendoza is to the effect that he had worked, off and on, for C. H. Austin for many years, and that at the request of C. H. Austin, Jr., he had examined and worked on some of the machines in controversy and that they were defective in several respects. He also stated that during the time he was working on such machines Austin, Jr., told him that they were on trial by his father. The affidavit of Mrs. Mary C. Austin, the wife of C. H. Austin, Jr., is to the effect that she accompanied her husband when he went to San Antonio early in 1963 to see about the candy vending machines, and that she told Gallaher that her father-in-law, C. H. Austin, could not afford to take the machines except on trial, and that Mr. Austin did not want the machines unless they were good machines, and that Galla-her told her the machines were good machines and that he knew the machines were to be taken on trial by Mr. Austin. There is no showing that this evidence was not available at the time of the trial of the case and could not have been discovered by due diligence. Mendoza had worked for C. H. Austin for many years, and Austin, Jr., was well aware that he had worked on some of the machines in controversy. Mrs. Mary C. Austin is the wife of one of the defendants. An indispensable element for the granting of a new trial on the grounds of newly discovered evidence is that movant ■exercised due diligence to discover the evidence. Foster v. McClain, Tex.Civ.App., ' 197 S.W.2d 508, no writ; 41 Tex.Jur.2d, New Trial, § 109 (1963). The evidence must not be merely cumulative of the evidence already received, and must be of such a character as will probably change the result on another trial, and the question of whether the new evidence will probably have this effect is one to be determined by the trial court in its discretion. Munden v. Chambless, Tex.Civ.App., 315 S.W.2d 355, writ ref’d n. r. e.; Texas Emp. Ins. Ass’n v. Pillow, Tex.Civ.App., 268 S.W.2d 716, writ ref’d n. r. e.; 41 Tex.Jur.2d New Trial, §§ 118 and 122. See also New Amsterdam Cas. Co. v. Jordan, Tex.Civ.App., 359 S.W. 2d 864 (Tex.Sup.1962). Defendants’ fourth and fifth points of error are overruled.

The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    Rodolfo GARZA, Appellant, v. Dean C. ANDERSON, Appellee.
    No. 284.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 29, 1967.
    Rehearing Denied July 20, 1967.

      Aloysius A. Leopold of Pena, Leopold & McDonald, Edinburg, for appellant.
    Asa Bland of Atlas, Schwarz, Gurwitz & Bland, McAllen, for appellee.
   OPINION

NYE, Justice.

This is a personal injury suit brought by Rodolfo Garza as a result of an intersec-tional collision within the city limits of the City of McAllen, Texas. Based on a jury verdict, judgment was rendered for defendant Anderson. Plaintiff appeals. The accident giving rise to this suit occurred at approximately eleven o’clock in the morning. It was a sunshiny day and the pavement was dry. The plaintiff was proceeding north on North Tenth Street approaching Hibiscus Avenue which intersects from the west at right angle to Tenth Street. The defendant was travelling east on Hibiscus Street which dead ends into Tenth Street and is controlled by a stop sign. The defendant made a left-hand turn in front of the plaintiff, whereupon the plaintiff slammed on his brakes, skidded some distance, turned his vehicle to the right, and crossed over the caliche shoulder through the right of way and out into the field, crossing a shallow irrigation ditch, and thereafter proceeded in the field a distance and back to the edge of the road where he came to a stop. The cars did not collide. The plaintiff’s car actually passed the defendant’s car on the defendant’s right while the plaintiff was in the field. Plaintiff did not seek any damages to his vehicle but complained of personal injuries to his back.

The jury found that the defendant failed to keep a proper lookout and failed to yield the right of way, which omissions were found to be a proximate cause of the accident. The jury further found the plaintiff guilty of contributory negligence in driving at a greater rate of speed than a person of ordinary prudence would have driven under the facts and circumstances then existing and further failing to make such application of his brakes as a person of ordinary prudence would have made under the same or similar circumstances, which acts were found to be a proximate cause of the accident.

Three of appellant’s five points can be summarized as complaints that there was no evidence or insufficient evidence of plaintiff’s contributory negligence and that the court erred in not entering a judgment non obstante veredicto.

In considering the “no evidence points” the record must be viewed in the light most favorably in support of the judgment of the trial court and the jury verdict. In this regard this court in considering the sufficient of the evidence (under the no evidence point) must disregard all evidence adverse to the findings of the jury and consider only the evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold them. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660; Fisher Construction Company v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inference and deductions from the evidence adduced before it. Its findings may not be disregarded if the record discloses any evidence of probative value which, with inference that may be properly drawn therefrom, will reasonably support the same. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). Concerning the no evidence point, the Court of Civil Appeals is without authority, to disregard the jury’s findings to special issues where there is some evidence in the record to support the findings. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600 (1951). Insofar as there may be conflict in the testimony of the witnesses it is clear that the jury, in the exercise of its prerogative, is the sole judge of the facts proven, of the credibility of the witnesses and the weight to be given their testimony. It is well settled that any ultimate issues may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, supra; English v. Miller, 43 S.W.2d 642 (Tex.Civ.App.-Amarillo 1931, wr. ref’d). With these principles of law as our basis, we review some of the evidence which is sufficient to cause the submission of the jury issues and serve as a basis for us to uphold the answers thereto.

The plaintiff testified that the defendant was approaching the intersection very slowly; that he first saw the defendant at around 150 to 200 feet away from the intersection; that when he got to within 100 feet of the intersection he applied his brakes as hard as he could; that he travelled about 60 feet after he had applied his brakes; that after he went across the shoulder and hit the irrigation ditch he testified that it seemed to him that the car was going to hit on the side and that it was going to roll over so he hit the gas pedal. He stated that he could not testify on how fast he was going because he was trying to get control of his car. He also testified that there were cars coming from the north approaching him which prevented him from passing the defendant and required him to turn to the right and go on out into the field. The defendant on the other hand testified that he saw the same cars approaching from the north; that he turned in front of them and had no difficulty in pulling into Tenth Street in front of these cars. The defendant testified that “after getting out on Tenth Street I straightened out my car, and then I looked up to the rear view mirror and I saw this car coming at a terrific rate of speed. I glanced away just for a moment and adjusted myself, got the car fully straightened out, and then looked up in the mirror again and the car was gone.”

“Q. Where did you next see the car (plaintiff’s car) ?
A. He pasesd me out in the field.
Q. And then did he pull up ahead of you?
A. Pulled up ahead of me.”
(emphasis and parenthesis supplied).

Concerning the factual insufficiency of the evidence, the Court of Civil Appeals is required to consider all of the evidence in deciding this qustion. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup. 1965). We have reviewed all of the evidence in the record, including the photographs and other' exhibits, and find that by balancing the substantial evidence that supports the verdict against the substantial evidence that is against the verdict we find that the greater weight and preponderance of the evidence favors the verdict of the jury. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958); Couch v. Hale, 404 S.W.2d 920 (Tex.Civ.App.-Corpus Christi 1966). Appellant’s points 1, 3 and 4 are overruled.

Appellant’s second point complains that the trial court erred in admitting testimony over objection, concerning a subsequent automobile accident in which plaintiff was involved. The defendant cross-examined the plaintiff concerning this subsequent accident that happened about twenty days after the accident that is the basis for this suit. The appellant complains that the testimony was immaterial and irrelevant and its admission was highly inflammatory, prejudicial and destructive of plaintiff’s case, leaving the obvious inference that the plaintiff was accident prone and habitually a poor driver and therefore he must have been negligent in some way in the accident made the basis of the case on trial. Citing Chuppe v. Gulf Iron Works, 306 S.W.2d 177 (Tex.Civ.App.-Eastland 1957, ref’d n. r. e.). The evidence in the Chuppe case was directly related to the habitual carelessness of the plaintiff in the performance of his work. This and other errors caused the reversal.

Generally speaking evidence of similar accidents is inadmissible on the issue of whether the party has been negligent except where a proper predicate has been laid showing that the unrelated accident occurred at the same place or under substantially similar circumstances or by means of the same instrumentality. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950). Here the plaintiff was complaining of an injury characterized as a sacralization of the spine. A medical report was introduced in evidence which stated:

“I next saw Mr. Garza in July of 1965 when he was again admitted to the hospital by Dr. Guerra and myself for treatment of occurrences of the back pain following the second injury.” (Emphasis supplied)

Plaintiff’s doctor testified that the injury that plaintiff had could have been received by driving over a one foot ditch as happened in the present case, as well as such injury could have been affected by plaintiff’s car being struck in the front by another automobile. (Referring to the second accident). If the purpose of the introduction of the testimony was in connection with plaintiff’s injuries or for impeachment, such was admissible. If it was admitted for the purpose of attempting to prove contributory negligence of the plaintiff, such testimony under these circumstances would be inadmissible. We hold that the evidence complained of in this record, if error, nevertheless was not sufficient to require a reversal. The trial court has some discretion in admitting such evidence and we see no abuse of such discretion. There was other evidence that the plaintiff was negligent and the inquiry about the subsequent accident was not sufficient for the jury to give controlling effect to this particular evidence in convicting plaintiff of his contributory negligence. Rule 434, Texas Rules of Civil Procedure. Appellant’s second point is overruled.

Appellant’s fifth point is that the trial court erred in submitting special issues 12, 13, 14 and 15 to the jury over plaintiff’s objection. We consider this point as being multifarious and too general to comply with the requirements of Rule 418, Tex.R.Civ.P. Holzapfel v. Bruegg-man, 404 S.W.2d 916 (Tex.Civ.App.-Corpus Christi 1966). See also this court’s opinion in Kettle v. Smirich, 415 S.W.2d 935 (Tex. Civ.App.-Corpus Christi, May 1967) and the cases cited therein. However, as we gather from appellant’s point he contends that there is a variance between defendant’s pleading and the submission of the issue as to speed and brakes. The issue calls for an answer to the fact question as to the driving of plaintiff’s vehicle at a greater rate of speed than a person of ordinary prudence would have driven under the same facts and circumstances then existing, whereas the pleading pleads simply the driving at an excessive rate of speed under the circumstances then and there existing. We see no variance. The liberal rules of pleading are designed to apprise the opposing party of the defense to be imposed and the defendant’s pleading meets this test. Appellant in this multifarious point further complains of what is meant by excessive speed, contending that it imports an inference that the defendant was negligent and does not contain a proper legal definition. The issue itself contains the definition of common law negligence as it relates to speed. As such the plaintiff was under the common law duty not to drive faster than an ordinary prudent person in the exercise of ordinary care would have driven under the same or similar circumstances under the facts present in this case. See Booker v. Baker concerning the issues submitted, 306 S.W.2d 767 (Tex.Civ.App.-Dallas, 1957) and Seay v. Kama, 346 S.W.2d 384 concerning excessive speed. See also Babb v. Young, 348 S.W.2d 660 (Tex.Civ.App.-Texarkana 1961); and Vardilos v. Reid, 320 S.W.2d 419 (Tex.Civ.App.-Houston 1959) Keys 5 and 6. As stated hereinabove the evidence supports the issue of excessive speed. The jury is entitled to consider all of the evidence, including the plaintiff’s ability as a driver to direct the course of his vehicle, and to consider such evidence in the determination of excessive speed. We have considered appellant’s point in light of authorities presented and fail to find reversible error. Appellant’s fifth point is overruled.

Judgment of the trial court is affirmed.