author: COLLINGS, Justice. GRISSOM, Chief Justice.

text:
    Walter H. DUNCAN et ux., Appellants, v. Ewell D. SMITH, Jr., et al., Appellees.
    No. 3796.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 28, 1964.
    Rehearing Denied March 13, 1964.

      Strasburger, Price, . Kelton, Miller & Martin, Hobert Price, Dallas, Fred Meredith, Terrell, for appellants.
    Ralph M. Hall, Rockwall, J. Alex Blake-ley and Rae Ann Fichtner, Dallas, for ap-pellees.
    Thompson; Coe, Cousins & Irons, Robert W. Porter, Dallas, for intervenors. -
   COLLINGS, Justice.

Ewell D. Smith, Jr., brought suit against Riley King, individually, d/b/a 'B. B. King, B. B. King, Inc., Buffalo Booking Agency, Millard Harvey Lee and Irene L. Duncan and husband Walter H. Duncan. Plaintiff sought to recover damages from the defendants for injuries sustained by him in an automobile accident which occurred on October 14, 1957, on a highway about nine miles west of the City of Terrell. Plaintiff alleged that at the time of the accident he was riding as a passenger in a butane gas truck being operated by his brother John Milton Smith, now deceased. He alleged that the accident was the result of negligence on the part of the defendants, individually, and acting in concert with each other; that Irene L. Duncan was the driver of a Chevrolet automobile at the time of the accident and that Millard Harvey Lee was the driver'of a bus which ran into the Chevrolet automobile being operated by Mrs. Duncan, and then went across the highway at a place where it narrowed at a bridge and hit the butane gas truck.

Suit was also brought by Margaret Griggs Smith surviving widow of John Milton Smith, deceased, who was the driver of the butane truck and was killed as a result of the accident. Mrs. Smith brought suit against the same defendants in her own behalf and for her minor children. She was joined by John Smith, Sr., and wife, parents of the deceased, John Milton Smith, seeking to recover damages because of the death of their son. The two cases were consolidated.

Trial was before a jury which found Millard Lee, the driver of the bus, guilty of negligence proximately causing the collision, and that Mrs. Duncan was guilty of negligence proximately causing the collision in that (1) she was attempting to pass the bus, (2) she failed to keep a proper lookout, (3) she failed to apply her brakes, (4) she drove her car at a greater rate of speed that a person of ordinary care would have done under the same or similar circumstances and (5) she drove her vehicle to the left of the center of the roadway when within 100 feet of the bridge. Based upon the verdict judgment was rendered against defendants B. B. King, Inc., as owner of the bus and against Walter H. Duncan and wife Irene L. Duncan, and in favor of the named plaintiffs and various other plaintiffs on subrogation claims and for property damage. Defendants Walter H. Duncan and wife have appealed.

In appellants’ first and second points it is contended that the court erred in refusing to hold there was no evidence, or in the alternative that the evidence was insufficient to support the findings by the jury that Irene L. Duncan was guilty of negligence proximately causing the accident.

An examination of the evidence relative to these points indicates the accident out of which this suit arose involved three vehicles, a bus owned by B. B. King, Inc., driven by Millard Lee, a Chevrolet automobile driven by appellant Mrs. Irene Duncan and a butane truck operated by John M. Smith, deceased, accompanied by his brother, appellee Ewell Smith, Jr. The accident occurred at 3:30 p. m. on October 14, 1957, at a bridge on highway 80 between Dallas and Terrell, Texas where the highway runs in an easterly and westerly direction. The bridge is 27 feet wide accommodating two lanes of traffic, one east bound and one west bound. From the east end of the bridge permanent guard rails extend east 57 feet along the north and south sides of the highway. The distance between the guard rails running east from the bridge gradually increases to the east end of the rails, and the over-all width of the highway immediately east of the guard rails including the two traffic lanes and the paved shoulders was 38.6 feet. The butane truck was travelling in an easterly direction. The King bus and the Duncan car were trav-elling west along the highway east of the bridge. As they neared the bridge and drove on to it, the bus was travelling partially in the west bound traffic lane and partially on the paved shoulder. Mrs. Duncan was at the time operating her vehicle to the left of and along side the bus and the evidence is conflicting as to whether her vehicle was to the left of the center of the roadway. The evidence is also conflicting as to whether the bus was attempting to pass Mrs. Duncan or she was passing the bus. Ewell Smith, Jr. testified that Mrs. Duncan was passing the bus. All other witnesses testified that the bus was passing her. In any event the bus struck the guard rail on the right side of the highway where it narrowed sharply to join the bridge, and then bounced toward the center of the highway into the right rear of the Duncan vehicle which was knocked into a sidewise position in front of the approaching butane truck, but the position of the Duncan car was somehow corrected so that it avoided a collision with the butane truck. The bus then veered still further left across the highway and struck the butane truck head-on as the truck came on to the west end of the bridge. The truck caught fire and John M. Smith was burned to death. Ewell Smith, Jr., sustained serious injuries.

The testimony of Ewell Smith, Jr., constitutes some evidence that Mrs. Duncan was passing the bus on the occasion in question and that such act constituted negligence which proximately caused the accident. The fact that there was evidence to the contrary is not material in determining the question of whether there was any evidence to support the finding complained of. If it is assumed that Mrs. Duncan was attempting to pass the bus then there was also some evidence that she failed to keep a proper lookout, that she drove her car at an excessive rate of speed under the circumstances and that such acts were negligence and proximately caused the accident. Appellants’ first point is overruled.

Appellants’ second point complaining of the insufficiency of the evidence presents a more difficult question but a careful consideraton of the record as a whole convinces us that it also should be overruled. In determining the question of the sufficiency of the evidence we must consider all of the facts and circumstances in evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The existence of negligence on the part of Mrs. Duncan proximately causing the accident in our opinion hinges principally upon the question of whether Mrs. Duncan was attempting to pass the bus. Mrs. Duncan and several disinterested witnesses testified that she was not passing the bus but that the driver of the bus was attempting to pass her car. The only evidence to the effect that Mrs. Duncan was passing the bus is from Ewell Smith, Jr., a party to this suit and an interested witness. The facts and circumstances of the case, aside from the conflicting testimony, do not show that either version is more probable than the other. Under such circumstances the fact that a witness is interested in the outcome of the suit or is a party thereto is not ground for refusing to give effect to his testimony even though it is contradicted by the testimony of all other witnesses. A question of fact is presented for the fact finding body. 24 Tex.Jur.2d 365, 366. In discussing the status of testimony of a party plaintiff and interested witness, it was held as follows in Haskins v. Henderson, Tex.Civ.App., 2 S.W.2d 864.

“The court had a right to believe his testimony and base the judgment he rendered thereon, notwithstanding it may have been contradicted, as appellant insists it was, by the testimony of all the other witnesses in the case.”

Appellants’ 8th, 9th, 10th, 11th and 12th points complain of the action of the court in permitting Dr. Conradt to testify that Ewell Smith is more susceptible to cancer since he received the burns in the accident. Appellants urge that the answers of the doctor clearly show that he was basing his testimony on speculation and possibilities as to what might happen in the future. We cannot agree with this contention and these points are overruled. The doctor’s testimony was, in effect, that based upon reasonable medical probability, Ewell Smith because of his burns is more susceptible to skin cancer. The evidence was admissible and was not subject to the objections urged by appellants. St. Louis S. W. Ry. Co. of Texas v. Brown, Tex.Civ.App., 163 S.W. 383, (Error Ref.); Rea v. St. Louis S. W. Ry. Co., Tex.Civ.App., 73 S.W. 555; Missouri, K. & T. Ry. Co. of Texas v. Crum, 35 Tex.Civ.App. 609, 81 S.W. 72, (Writ Ref.).

In appellants’ 13th and 14th points it is contended that damages in the sum of $175,000.00 in favor of Ewell D. Smith, Jr., is grossly excessive and that the court erred in not granting a new trial or in the alternative in not granting a remittitur down to $15,000.00. We cannot agree with appel-lees’ contention that appellants failed to include in their motion for new trial a sufficient assignment of error to preserve these points on appeal. The assignment urged the granting of a new trial because the award to Ewell Smith was “obviously so excessive as to show bias and prejudice on the part of the jury.”

The record indicates that at the time of the accident on October 14, 1957, Ewell Smith was thirty one years of age and had a life expectancy of 36.88 years. He was a part time farmer and owned a small farm. He had also been a part time carpenter and house painter and according to his statement had done “every thing to make a living.” He employed help to do most of the farm work. At the time of the accident he was employed by Urbane Butane Company as a butane truck driver and was earning $65.00 per week.

The evidence shows that the truck caught fire immediately after the collision and that Ewell Smith was burned painfully and terribly. There was no let-up from intense pain while he was in the hospital for a period of about two months. He was under medical treatment for his injuries for about two years. There were burns on his back which extended from about four inches above the waist line to about four inches below the waist line. His hands were burned all over and his arms were burned about three or four inches above his wrists. His face was burned all over but was worse on his mouth, nose, ears and on one side. He also had burns on his upper left chest. Some of the burns on his back, on his face and his left ear were third degree burns. There was a lot of actual destruction of outer layers of skin about his face and lips. He lost a portion of his left ear. While he was in Baylor Hospital skin grafts were performed on his right thigh and face. Smith did no work at all for a year and all work that he has done since the injury has caused pain. He has no feeling in his lipsJ In the summer he blisters every day; from the moment of his injury until the time of the trial, (5 years), he has continually suffered pain and discomfort; his condition has continued unchanged for three years prior to the trial and in his opinion will be permanent

Smith’s farming prior to the accident had not been very lucrative. He had been able to do anything required to be done on the farm before his injury, but the farm income was not sufficient for his needs. The evidence indicates that it had been necessary for him to do other work to supplement his earnings on the farm. After his injury there was much of the work which he could not do at all, and that which he did caused pain and discomfort. It was, therefore, necessary to hire others to do most of the farm work. He testified that he had tried farming both in working on his own farm and in doing farm work for others, and had found that he could not do it because of his injuries. At the time of his injury he was earning $65.00 per week from his butane truck job. Although his farming was not very lucrative even before the accident it was less thereafter because he had to hire so much help. There can be no question but that the evidence shows a general and permanent impairment of Ewell Smith’s capacity to earn money on the farm and in any kind of work involving manual labor such as farming, driving a truck or any other kind of manual labor. We overrule appellants’ contention in their 18th point that there was no evidence showing that Ewell D. Smith has any diminished earning capacity, or that he will have in the future.

Dr. Conradt testified that he first saw Smith in the Hospital at Terrell when he treated him for shock and burns; that Smith was given morphine arid a dressing was applied to the burned areas. The doctor testified that in spite of the narcotics Smith continued to have pain. He stated that he had examined Smith at the time of the trial and that Smith’s face was quite red, that he had lost a portion of his left ear and had a lesion below his left eye; that he had scarring on the back part of his wrist and an extensive scar in the area of his back where he was burned; that he had a drawing or contraction around his mouth; that based upon his examination, objectively, Smith would have pain to his face if exposed to heat or cold; that he would have pain in the area of the scar on his back in any activities requiring stooping, carrying or lifting and that such conditions were permanent.

Even though Ewell Smith has sustained considerable loss of earning capacity and has and will suffer extreme pain and suffering, in our opinion, appellants’ contention that the $175,000.00 award of damages to appellee is grossly excessive and that the court erred in not granting a remittitur is well taken. The loss of earning from the farm is without definite support in the evidence. However, a loss of earnings of $65.00 per week during the period prior to the trial would amount to about $15,000.00. Since appellee Smith at the time of the trial had a life expectancy of 31.88 years the total amount for loss of such future earnings would show more than $107,000.00. The present cash value of such future earnings should amount to about $42,000.00, and this does not include damages for the pain and discomfort he suffered up to the time of the trial, or that which the evidence indicates he will suffer in the future. Under the evidence there can be no question but that Ewell Smith received a terrible injury and that his injuries are permanent. The evidence would support an award to him in the sum of $114,000.00, but in our opinion any amount in addition thereto is excessive and cannot be permitted to stand.

It is contended in appellants’ 15th and 16th points that the court erred in not granting a new trial because the award of damages to appellee, Margaret Griggs Smith, in the sum of $88,000.00 on account of the death of her husband, John M. Smith, was grossly excessive, or in the alternative in not granting a remittitur down to $15,-000.00, and that the court erred in not granting a new trial because the findings of damages in favor of the minor plaintiffs, Gloria Jeanette Smith, Shirley Kay Smith and Beverly Johnette Smith in the sum of $35,000.00 each because of the death of their father, John M. Smith, was grossly excessive, or in the alternative in not granting a remittitur down to $6,000.00 each.

The evidence shows that John M. Smith, prior to the time of his death, was earning a little over $300.00 per month and that he had a normal life expectancy of 37.74 years. Damages recovered under the wrongful death statute are compensatory and are to be estimated on present value of anticipated benefits. John M. Smith’s earnings during the entire period of his life expectancy on the basis of $300.00 per month would have been, had he lived, approximately $137,000.00. The present cash value of such earnings would amount to about $45,000.00. As indicated in the court’s charge to the jury it was also proper to take into consideration the pecuniary value to Mrs. Smith of the counsel, protection and service of her husband and the pecuniary value to each of the said minor children of the care, moral advice, education and training which such children would in reasonable probability have received from their father had he lived. The evidence in our opinion considered on the basis of the present value of anticipated benefits to the parties would support an award to appellee, Margaret Griggs Smith, in the sum of $60,000.00 and an award to the minor daughters in the sum of $12,000.00 each. Any amount in addition to that stated would, in our opinion, be excessive.

Appellants contend in their 17th point that the court erred in refusing to submit only one issue as to the amount of damages sustained as a result of the death of John M. Smith, and in not then instructing the jury to apportion said single amount of damages between the various beneficiaries and in submitting over appellants’ objection separate issues inquiring about the damages to each of the beneficiaries, the widow and three children. The point is not well taken and is overruled.

Appellants’ 3rd, 4th, 5th, 6th and 7th points complain of the action of the court in refusing to allow highway patrolman James Barton, who investigated the accident, to testify concerning statements made by the bus driver, Millard Lee, a few minutes after the accident. Appellants contend that this evidence is admissible under the res gestae rule and also under the rule that it is an admission by the bus driver against the interest of himself and his employer. Neither the bus driver nor his employer are parties to this appeal. We, therefore, confine our consideration to the question of whether the statements in question were admissible as res gestae. The statements of the bus driver were in substance that just prior to the accident he was trying to pass the Duncan car on the right, and in doing so hit the side rail, glanced off and struck the Duncan car and then had a head-on collision with the butane truck.

The majority is of the opinion and hold that such statements were not admissible as res gestae and that the court did not err in excluding them. The writer is unable to agree with this holding.

The evidence indicates that patrolman Barton arrived at the scene of the collision about twenty or thirty minutes after it occurred ; that the first people he saw after he got there were the colored passengers in the bus; that he asked them who was driving the bus, and Millard Lee answered that he was the driver; that he talked to Lee and asked him what happened; that Lee was calm and acted like he knew what he was talking about and voluntarily made the statement that he was driving the bus involved in the collision; that he was travel-ling west on the “improved shoulder” of the highway and was passing Mrs. Duncan’s automobile on the right; that he saw he was coming upon a bridge and applied his brakes but didn’t have enough air pressure built up and couldn’t stop; that he hit the bridge, then hit Mrs. Duncan’s car and then went across the road and hit the truck. In the writer’s opinion the statement to the highway patrolman by Millard Lee was part of the res gestae and was admissible. It is well recognized that statements or acts of persons who participate in, or witness, the main or principal event may be admissible as part of the res gestae. 32 C.J.S. Evidence § 410, p. 24. There appears to be no hard and fast rule for determining the admissibility for such statements or acts but it is held that in determining what acts or declarations are part of the res gestae each case must be considered on its own particular facts. In 24 Tex.Jur.2d pages 102, 103 and 104, the material considerations concerning the admissibility of such testimony are stated as follows:

“Broadly speaking, all acts and declarations of the parties are part of the res gestae if they are part of the main transaction under consideration or if they accompany the main transaction and tend to explain it, as by throwing light on the motives and intentions of the parties. Again, acts and declarations are also generally part of the res gestae if, although not accompanying the main transaction, they spring out of it, tend to explain it, are voluntary and spontaneous, and are made so close in time to the main transaction, or under such circumstances, as to exclude any idea of premeditation and design. The fact that a statement or declaration is made in reply to a nonleading question does not render it inadmissible under the rule.”

The following cases support the above stated general principles and their application to the instant case: Harris v. Allison, Tex.Civ.App., 11 S.W.2d 821, (Error Dis.) ; Southwestern Freight Lines v. McConnell, Tex.Civ.App., 269 S.W.2d 427, (Error Ref. N.R.E.); Beck v. Wahlgren, Tex.Civ.App., 87 S.W.2d 890, (No Writ History) ; Carrick v. Hedrick, Tex.Civ.App., 351 S.W.2d 659, (No Writ History) ; Dallas Ry. & Terminal Co. v. Burns, Tex.Civ.App., 60 S.W.2d 801, (No Writ History); Keystone-Fleming Transport, Inc., Tex.Civ.App., v. City of Tahoka, 315 S.W.2d 656, (Ref. N.R.E.); International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039; Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253, (Writ Ref.).

The tendency has been to extend rather than to narrow the matters which may be admissible under res gestae. 32 C.J.S. Evidence § 403, p. 22; Evans v. McKay, Tex.Civ.App., 212 S.W. 680; Wetherbee v. Safety Casualty Co., 5 Cir., 219 F. 274.

The cases indicate that to be admissible as res gestae a declaration must be spontaneous and while under the influence of the transaction. It is said that “res gestae evidence is not the witness speaking but the transaction voicing itself.” Knapik v. Edison Bros., Tex.Civ.App., 313 S.W.2d 335, (Writ Ref.). A narrating of past events, as where a statement is made in answer to a question is ordinarily not admissible as res gestae, but the circumstances may be such that a statement will be considered spontaneous and admissible even though in answer to a question. Tullos v. Texas Pipe Line Company, Tex.Civ.App., 145 S.W.2d 267, (Dis.Jdgm.Cor.); Davis Transport, Inc. v. Bolstad, Tex.Civ.App., 295 S.W.2d 941; 32 C.J.S. Evidence § 420, p. 53.

An important consideration in the matter of spontaneity is the question of whether the statement is self-serving or inculpatory. A self-serving statement will be carefully scrutinized while a statement against the apparent interest of the declarant will be more readily received. Martin v. City of Corsicana, Tex.Civ.App., 130 S.W.2d 405, (Dis.Jdgm.Cor.) ; 32 C.J.S. Evidence § 419, pp. 52, 53.

Another somewhat similar consideration is whether the circumstances under which the statement is made tend to exclude any idea of premeditation or design. In 32 C.J. S. Evidence § 417, on page 46 it is stated that:

“The test has also been declared to be whether the statement was made under such circumstances of physical shock or nervous excitement as to preclude the likelihood of reflection and fabrication.”

Also see Coleman v. Cook, Tex.Civ.App., 195 S.W.2d 1020 and cases cited therein. The lapse of time between the accident and the declaration is also a matter for consideration.

An examination of the statements made by the bus driver Lee to the patrolman and the material circumstances bearing upon their admissibility as res gestae reveals the following important controlling facts:

The declarations by Lee although in answer to a question were voluntary. The portion of Lee’s statement material to the liability of the Duncans was against the apparent interest of Lee. The statements were made not more than thirty minutes after the accident. Numerous cases have held admissible declarations more distant in time from the main event than the declarations here involved. The declarations by Lee were made while he was still at the scene of the tragedy. The bridge was still blocked by the vehicles involved in the accident. The bus which Lee had been driving and the butane truck were still burning. The driver of the truck was still entrapped in that burning vehicle and was then being or had already been burned alive. It was stated by the patrolman that Lee was apparently calm when he declared that he was passing the Duncan car at the time of the accident. It is noted, however, that the declaration was made at the time and under the circumstances as above set out. Lee was without doubt under the influence of the shock and solemnity which was bound to prevail in the presence of such a tragedy. These circumstances preclude the likelihood of reflection and fabrication. The time, the nature and the unreflected character of Lee’s statements indicate spontaneity and trustworthiness. The statements were admissible as res gestae and the court erred in not so holding.

The writer cannot agree with appellees’ contention that Isaacs v. Plains Transport Company, Tex., 367 S.W.2d 152, supports their contention that the statements of the driver of the bus are not admissible as res gestae. In that case that “statements of the driver were pure conclusions” and it was held that under the circumstances such a statement was not admissible (against the driver’s employer) even though made immediately after the collision. In the instant case the statements of the bus driver were not in the nature of an opinion or conclusion but were statements of fact and were admissible as res gestae.

The writer is also unable to agree with appellees’ contention that any error of the court in excluding the proffered res gestae testimony was harmless within the contemplation of Rule 434, Vernon’s Texas Rules Civil Procedure. It is true, as ap-pellees contend, that there was other testimony to the effect that Millard Lee, the driver of the bus, was attempting to pass Mrs. Duncan’s car at the time, rather than that Mrs. Duncan was passing the bus. However, under the circumstances, the testimony of the patrolman concerning the statements by Lee was such that if it had been presented to the jury it probably would have affected the verdict. An admission by one of the parties to an accident concerning the existence of facts which would show that he was the negligent one necessarily carries great weight. The existence of negligence on the part of Mrs. Duncan proximately causing the accident hinges principally upon the question of whether or not Mrs. Duncan was passing the bus. The answer to that question bears upon and would unquestionably affect a jury’s determination of the question of whether Mrs. Duncan was keeping a proper lookout. It would also bear upon and affect the determination of the questions of whether the facts that Mrs. Duncan failed to apply her brakes and the speed at which she was operating her car under the circumstances constituted negligence, and whether or not the fact that she drove her car to the left of the center of the highway would or could be a proximate cause of the collision. It thus appears that the excluded testimony has an important bearing upon every finding of the jury concerning negligence by Mrs. Duncan proximately causing the accident. See Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806. In this condition of the record as a whole the writer is of the opinion that if the testimony in question had not been excluded,, the jury very probably would not have found that Mrs. Duncan was attempting to pass the bus and that she was guilty of the other alleged acts of negligence and that such acts, were proximate causes of the collision. The exclusion of the testimony was therefore reasonably calculated to cause and probably did cause the rendition of an improper judgment, and requires a reversal of the-judgment under Rules 434 and 503, V.T.R. C.P. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210; Missouri-Kansas-Texas Railway Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931.

For the reasons stated it is my opinion that the judgment should be reversed and. the cause remanded for another trial.

GRISSOM, Chief Justice.

The foregoing opinion was written by-Judge COLLINGS as the opinion of the-court except on the question of admissibility of alleged res gestae statements. The-majority agrees with his opinion except on the question of admissibility of the statements of Millard Harvey Lee. The majority opinion on that question is as follows :

Appellants contend the judgment-must be reversed because of the refusal of the court to admit the testimony of an investigating officer as to statements of the negro bus driver as to the cause of the accident. To be admissible as res gestae-statements they must have been made under-circumstances raising a reasonable presump- ■ tion that they were the spontaneous utterances of thoughts created by or springing-out of the transaction itself and exclude the-idea that they were the result of premeditation or design. Pacific Mutual Life Insurance Company of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712.

In passing upon the admissibility of a statement offered as a part of the-res gestae the trial court has considerable? discretion. Truck Insurance Exchange v. Michling, Tex., 364 S.W.2d 172, 174; Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298; 56 A.L.R.2d 374, 378. Our Supreme Court has held that a party who seeks to have hearsay declarations admitted as an exception to the general rule must “clearly” show that the declarations are within the exception. Skillern & Sons, Inc. v. Rosen, supra. Appellants had the burden of presenting a sufficient predicate showing the admissibility of the bus driver’s statements. When such evidence has been excluded, the burden upon an appellant to show reversible error is not discharged by showing that the circumstances were such that the declarant could have been so affected by them as to make his statements spontaneous utterance of facts springing out of the accident itself. He must show that the declarant was so affected. Such a conclusion is not required by evidence that the declarant “advised” the witness of certain things; that he was “calm” and knew what he was. doing. Since a sufficient predicate for its introduction was not presented, we cannot hold that the court erred in excluding it. Pacific Mutual Life Insurance Company of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712.

Unquestionably, the statement of the bus driver that he was attempting to pass Mrs. Duncan; that he observed that the highway narrowed as he approached the bridge; that he applied his brakes but did not stop because his brakes failed to work, causing him to strike the guard rail, bounce off it and strike the rear end of the Duncan car and then have a head-on collision with the Smith truck on its right hand side of the road, were of importance to the defense of the Duncans, the bus driver and his employer. His statement that he failed to stop before the collision because his brakes failed to work was exculpatory. But, the substance of the officer’s proffered testimony as to the statement by the bus driver pertinent to the question of its admissibility is that the bus driver was standing with his passengers a safe distance from the fire, at a time which could have been thirty minutes or more after the collision; that the officer asked who was driving the bus and Lee stated that he was; that the officer asked him how the accident occurred and Lee “advised” him of the matters outlined above and that the bus driver was “calm” and seemed to know what he was talking about. Certainly, this does not compel the conclusion that Lee’s statements were the spontaneous utterances of facts created by or springing out of the accident itself. Therefore, they do not show that the court abused its discretion in excluding them.- They do not necessarily show that the statements attributed to him were made while the bus driver was laboring under stress or excitement. On the contrary, they tend to support the conclusion that they were not spontaneous exclamations but a mere narrative of a past event made when the declarant’s condition was such that it need not be concluded that it was the transaction itself speaking. “Spontaneity is a necessary and controlling factor.” Pacific Mutual Life Insurance Company of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712. We conclude that appellants have not discharged the burden of presenting a sufficient predicate to require the admission of the bus driver’s statements; that they did not clearly show that the proffered declarations came within the exception; and, having failed to do so, we cannot hold that the court erred in refusing to admit them. We hold that it is not shown that the court abused its discretion in excluding such testimony. Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298, 305; The Texas & Pacific Railway Company v. Porter, Tex.Civ.App., 360 S.W.2d 568, 571; Petroleum Casualty Company v. Harlan, Tex.Civ.App., 352 S.W.2d 342, 345.

The judgment will be affirmed if the remittiturs indicated are promptly filed. Otherwise, the judgment will be reversed and the case remanded. Affirmed conditionally.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Coley R. INGRAM, Jr., Appellant, v. Carolyn INGRAM, Appellee.
    No. 4216.
    Court of Civil Appeals of Texas. Waco.
    March 19, 1964.
    Davee & Davee, Brady, for appellant.
    O’Neal Dendy, San Angelo, for appellee.
   TIREY, Justice.

This is a divorce action, non-jury. In the decree we find this recital: “ * * * after hearing- the pleadings and the testimony of the plaintiff, finds that the material allegations of her petition with reference to grounds for divorce are true and are sufficient to entitle the plaintiff to a divorce from the defendant; to custody and control of the three minor children; * * *The decree then awarded certain properties to the plaintiff and fixed the support orders for the three minor children at $85.00 per month, and provided for visitation rights of the defendant.

The judgment is assailed on one point: “The trial court erred in granting appel-lee judgment for divorce, for the reason that same is unwarranted, and contrary to the evidence and the pleading in this cause.”' We overrule this point for reasons hereinafter briefly noted. Section (1) of Article 4629, Vernon’s Annotated Civil Statutes,, provides a divorce may be granted

“Where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable;”.

Article 4632, Vernon’s Annotated Civil Statutes provides in part:

“ * * * but the decree of the court shall be rendered upon full and satisfactory evidence, upon the judgment of the court affirming the material facts alleged in the petition”.

These provisions of our statute have been construed many times by our appellate courts. Our Supreme Court, in McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, page 463, in answer to certified questions, said:

* * * the excesses, cruel treatment, or outrages provided in our statute as a ground for divorce are sufficient if they are of such a nature as to render further living together insupportable, and that without regard to whether such treatment is of such a nature as to threaten the impairment of the physical health of the wife. Of course the sacredness of the marriage relation should be kept in view, and divorces should not be granted on trivial matters or disagreements.”

In this cause, the plaintiff grounded her cause of action on the cruel treatment of her husband, and we have examined the testimony very carefully, and we are of the view that the testimony of the plaintiff, although not corroborated by any other witness, satisfies the test provided in Article 4632, supra. See Harrell v. Harrell, Tex.Civ.App., 206 S.W.2d 109, point 1, and cases there cited. The testimony of the plaintiff is clear and convincing to us and we approve the holding of the trial court. Further comment upon this cause would serve no useful purpose. The judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    J. B. MARION d/b/a J. B. Marion & Company, Appellant, v. J. D. HAWTHORNE, Appellee.
    No. 7332.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 24, 1964.
    On Rehearing April 6, 1964.
    Rehearing Denied April 27, 1964.
    Edward W. Napier, Lubbock, for appellant.
    Allison, Mann & Allison, Levelland, for appellee.
   CHAPMAN, Justice.

This is an appeal by J. B. Marion d/b/a J. B. Marion Company from a judgment based upon a jury verdict for damages for breach of a written contract made on October 5, 1961, to purchase at 30.4 cents per pound all the cotton J. D. Hawthorne would grow on specified land for 1961 having 336 acres of cotton; and would harvest, gin, and deliver to appellee. He purchased approximately 260 bales then refused to accept the remainder of 282 bales. Appellee elected to sell the cotton at a fair sale and sue for the difference.

The case was submitted to a jury upon special issues, which were all answered in favor of appellee. Appeal is from the judgment based upon such verdict and presents two points as alleged error.

The first point is essentially the same as that raised by the same party in our court in syl. 1 of J. B. Marion d/b/a J. B. Marion Company v. Bowers, Tex.Civ.App., 371 S.W.2d 575, and in numerous other appeals to our court by the same appellant, some of which are not yet reported. We have previously disposed of the point in other cases and here refer to the cited case and the authorities there cited for a proper disposition of the point.

The second point asserts error in refusing certain requested special issues. The issues tendered were en masse issues; i. e., (1) did the placing of the cotton on the ground result in substantial loss to the grade and (2) did plaintiff unreasonably delay tendering the cotton in question to the defendant.

Where more than one issue is embraced in a single request, the trial judge in determining whether a particular issue should be given or refused etc. must consider whether all others should be given or refused etc., else he must rewrite them in order to make the required separation and proper endorsement of his action on each if one or more of the issues should not have been given. Therefore, when one or more of the special en masse issues should not have been given, the trial court is justified in refusing to give any of them. Texas General Indemnity Co. v. McNeill, Tex.Civ.App., 261 S.W.2d 378 (N.W.H.); Walton v. West Texas Utilities Co., Tex.Civ.App., 161 S.W.2d 518. (Refused WM).

The court gave an issue inquiring if ap-pellee exercised ordinary care to deliver his grade cards, which are the facsimile of the cotton, to appellant and if plaintiff for his own benefit delayed tender of the cotton to the defendant. Therefore, the second issue of the two tendefed together should not have been given because the fact inquired about was already in the charge.

“If is well settled that special issues are to be submitted separately and distinctly and not generally or in groups or combinations.” Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111.

For all these reasons, we hold the failure of the court to submit the issues in the form tendered was not reversible error.

Accordingly, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Following appellant’s motion for rehearing, we have given further study to the wording of Special Issue 5 in the court’s charge and have concluded we were in error in holding in our original opinion of February 24, 1964, that the issue was sufficient.

Plaintiff pleaded “ * * * the price for which said cotton was sold was less than the contract price and was the best and most favorable price that plaintiff could secure for said cotton.” Special Issue 5 only inquired if plaintiff exercised ordinary care in selling the cotton. Neither in said issue nor in any other issue in the charge did the trial court inquire if the rejected cotton was sold for a fair price, the market price or the best price obtainable. The jury could have speculated that exercising ordinary care in selling the cotton would have been complied with by selling it immediately after it was rejected, as soon as convenient or waiting until the price arose again. The issue does not conform to. the case pleaded, is speculative and insufficient for the jury to find from the inquiry if the rejected cotton was sold for a fair price, the market price, or the best price obtainable as required by the authorities. Clearview Louver Window Corporation v. Rubin Glass & Mirror Company, (Tex.Civ.App.), 284 S.W.2d 221 (N.R.E.); Gugenheim v. Hancock, (Tex.Civ.App.), 231 S.W.2d 935 (N.R.E.); Smith v. Ratliff, (Tex.Civ.App.), 157 S.W.2d 945 (N.W.H.) ; Marion v. Bowers, (Tex.Civ.App.), 371 S.W.2d 575 (N.W.H.).

Appellant properly objected to the form of the issue before the case was submitted to the jury and preserved the point in his motion for new trial. Since it was. an issue relied upon by the opposing party,, it was not necessary for him to tender an issue in substantially correct wording. Rule 279 Vernon’s Ann.Tex.Rules.

Accordingly, our opinion of February 24, 1964, is set aside, the judgment is reversed and remanded for a new trial and all costs are assessed against appellee.


author: CLAYTON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Fred NARDMAN, Appellee.
    No. 5609.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 8, 1964.
    Rehearing Denied Feb. 19, 1964.
    McDonald, Shafer, Gilliland & Davis, Odessa, Touchstone, Bernays & Johnstone, Dallas, for appellant.
    Warren Burnett, Lee Arnett, Odessa, for appellee.
   CLAYTON, Justice.

Appellee sued appellant under the terms of the Texas Workmen’s Compensation Act to set aside an award of the Texas Industrial Accident Board for injuries allegedly incurred in Argentina, South America. Suit was brought in Ector County, Texas, the residence of appellee, and appellant filed its original and amended plea of privilege to be sued in Dallas County, the county of its residence. An original and amended controverting plea were filed by appellee alleging that venue properly lay in Ector County under the provisions of Texas Rev.Civ.St. Article 1995, section 30 of the venue statute; and Articles 8306, section 19 and 8307, sections 5 and 5a, Workmen’s Compensation Act. In the hearing on the plea of privilege no testimony was offered, the matter being submitted to the court on the pleadings. The plea of privilege was overruled, from which order of the court this appeal is taken.

Section 30 of Article 1995, T.R.C.S., provides :

“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 8306, Sec. 19, T.R.C.S'., Workmen’s Compensation Act, relied upon by appellee as a special venue statute, provides:

“Art. 8306, sec. 19. Injuries sustained outside state; venue
“Sec. 19. If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either
“a. In the county of Texas where the contract of hiring was made; or
“b. In the county of Texas where such employee or his beneficiaries or any of them reside when the suit is brought, or
“c. In the county where the employee or the employer resided when the contract of hiring was made, as the one filing such suit may elect.
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

Appellee, in his amended petition and controverting plea, alleged that he was an employee who had been hired in this State and who sustained an injury in the course of his employment outside of Texas within the meaning of Article 8306, Sec. 19; that this was a suit to set aside an award of the Industrial Accident Board as mentioned in Article 8307, Sections 5-5a and was-brought in Ector County where he was a resident at the time the contract of hiring was made and at the time of bringing the suit; and that the alleged injury was sustained within one year from the time he left the State of Texas and that he had not elected to pursue his remedy and had not recovered outside the State and where the injury occurred. But appellee did not allege or swear that he occupied the status of a “Texas employee” as that term has been employed in Texas cases, before leaving the State. Nor would such an allegation in the appellee’s petition or controverting plea, in the absence of proof, have been effectual either to establish venue or his right to recover under the provisions of the statutes above mentioned. Sections 154 and 155, 43-B, Tex.Jur., Venue, provides :

“§ 154. Petition and Controverting Plea as Showing Venue Facts. — * * * on hearing the issue as to venue, neither the controverting plea, nor the petition will be considered as evidence of the facts therein alleged to show that the case constitutes one of the exceptions mentioned in the venue statute.
“All such matters of fact must be provided by affirmative evidence on the hearing of the plea of privilege, and neither the allegations in the petition nor those of the controverting plea may be considered as evidence of the truth thereof. Indeed, the controverting plea is not proof of anything; it merely entitles the plaintiff to make proof of the facts therein alleged.
“§ 155. Burden of proof. — A plea of privilege in the prescribed form is prima facie proof of the defendant’s right to a change of venue. It is then incumbent on the plaintiff having filed the proper controverting plea, to establish by competent evidence all facts essential to maintenance of the action in the county where it is brought. In other words, upon the plaintiff rests the burden of proving by a preponderance of the evidence that the case is within one or more of the exceptions mentioned in the venue statute * * *
“The plaintiff’s controverting plea has no greater effect than to put in issue the facts alleged in the plea of privilege, which will still prevail until overcome by evidence adduced upon a hearing. And the plea of privilege must be sustained if no evidence is introduced to show the truth of the allegations in the controverting plea.”

And the Texas Supreme Court, in a 1940 decision, holds:

“Under the plain provisions of Section 19 of Article 8306, supra, as interpreted and construed in the two cases above mentioned, before an employee injured outside the territorial limits of this state can recover for such injury under our compensation statutes, he must prove that, at the time of such injury, he occupied the status of a Texas employee incidentally or temporarily sent out of the state to perform labor or services. The phrase, ‘who has been hired in this State,’ has no reference to the place where the contract of hiring took place. The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted with in this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state. Also, if a person is hired to work in this state, — that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to protection under our compensation statutes. In any event, before the statute under consideration can be applied in favor of an employee injured out of this state, it must be shown that he occupied the status of a Texas employee before leaving the state. Also, it must be further shown that while occupying such status he was incidentally or temporarily sent out of the state by the Texas employer to perform labor or services for such employer.” (Emphasis supplied). Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590.

No such proof as is required by the above authorities was presented by appellee.

Because the appellee failed to establish his cause under the statutes and cases above listed, appellant’s first three points of error, directed to this deficiency, are hereby upheld, and the ruling of the trial court must therefore be reversed. However, since the matter of appellee’s status as an employee might be more fully developed in a new trial, this case is remanded to the trial court. In view of this disposition of the cause, the question of proof that the Industrial Accident Board had made a final award under a policy of Workmen’s Compensation insurance issued to the employer to cover the injury allegedly incurred in Argentina (as raised in appellant’s fourth and fifth points of error) may be disposed of at a subsequent trial.

Reversed and remanded.

ON MOTION FOR REHEARING

Appellee’s motions for rehearing herein and his brief in support thereof attack the findings of this court in its original opinion. Finding no new points of error urged by appellee in his motions and brief, the motions are hereby overruled.

Appellant filed its answer to appellee’s motions for rehearing and in turn filed its own motion for rehearing. The latter rests upon a single point of error: that this court erred in remanding this cause to the trial court for rehearing on appellant’s plea of privilege.

In our original opinion this court pointed out that in the hearing on the plea of privilege in the trial court no testimony was offered, the matter being submitted to the trial court on the pleadings, which included appellee’s original and amended controverting plea. This court then quoted from sections 154 and 155, 43-B, Tex.Jur., Venue:

“The plaintiff’s controverting plea has no greater effect than to put in issue the facts alleged in the plea of privilege, which will still prevail until overcome by evidence adduced upon a hearing. And the plea of privilege must be sustained if no evidence is introduced to show the truth of the allegations in the controverting plea.”

No evidence having been introduced or even offered by appellee to show the truth of the allegations in appellee’s controverting plea, this court was in error in remanding said ■cause to the trial court for further hearing ■on the plea of privilege. Appellant’s motion for rehearing is therefore granted and the last paragraph of this court’s original opinion is hereby reformed so as to approve appellant’s first three points of error on appeal, to reverse the ruling of the trial court, to sustain the plea of privilege and to remand this cause to the trial court with instructions to transfer this cause to the appropriate court in Dallas County, the county of appellant’s residence, as prayed for in said plea of privilege.

Reversed and remanded with instructions.