author: GREEN, Commissioner.

text:
    Ronald Ray BRANTLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 49532.
    Court of Criminal Appeals of Texas.
    May 7, 1975.

      Max Blankenship, Fort Worth, Court appointed on appeal, for appellant.
    Tim Curry, Dist. Atty., and Cue, Lipscomb, Marvin Snodgrass & John Hill, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder with malice. Punishment was assessed at life.

Appellant initially attacks the sufficiency of the evidence on the basis that his extra-judicial confessions, oral and written, are not sufficiently corroborated by other evidence.

The indictment alleged that on or about August 31, 1972, in Tarrant County, Ronald Ray Brantley did then and there voluntarily with malice aforethought kill Mary Emma Davis by cutting her with a knife and hitting her in the head with an iron skillet.

The record reflects that Mary Emma Davis, 85 years old, was found dead by her daughter Fay Miller on the morning of August 31, 1972. Miller testified that a photograph of the body, being State’s Exhibit No. 2, accurately depicts the scene of the crime as she found it. The photograph shows that the vaginal area of deceased had been cut away, and blood is shown around the area where the throat was cut.

Allen Russel, a police officer, testified that when he saw deceased she had a wound on her left forehead. He saw a skillet on a stove with the bottom broken out and pieces from the bottom lying in the blood around deceased’s head.

The pathologist who examined the body the day that it was found testified that he observed a severe laceration in the left side of the head above the left eye, evidently caused by being struck with a hard object, a deep cutting wound about five inches long in her neck, and the absence of the entire vulva and part of the vagina. She died as the result of the assault committed on her.

The evidence apart from the confession reflects that the body of deceased was identified and her death was shown to have been caused by the criminal act of another. The corpus delicti was thus established. Self v. State, Tex.Cr.App., 513 S.W.2d 832. In his written confession, appellant admitted killing deceased under circumstances sufficient to prove murder with malice.

In Self v. State, supra, at page 837, we said:

“. . . . The State having established the corpus delicti could prove the appellant’s guilt as the agent guilty of the commission of the crime by his confession unaided by other evidence. See, e. g. Gutierrez v. State, [502 S.W.2d 746] supra; Brookins v. State, 499 S.W.2d 320 (Tex.Cr.App.1973); Bayless v. State, 492 S.W.2d 588 (Tex.Cr.App.1973); Thomas v. State, 458 S.W.2d 817 (Tex.Cr.App.1970). The remaining element of proof essential to the State’s case that the appellant was the guilty agent in causing the deceased’s death was proved by the appellant’s extrajudicial written confession and his oral admissions to Beamer. All cases heretofore holding that the corpus delicti in a murder prosecution consists of three elements are hereby overruled to the extent they are in conflict with this opinion.”

The first ground of error is overruled.

In his second and third grounds, appellant says that the court erred in admitting in evidence his oral and his written confessions.

During the trial on October 4, 1973, but prior to the introduction of the confessions in evidence, the court conducted a hearing to determine their admissibility. After much testimony, the court made the findings beyond a reasonable doubt, both as to the oral and the written confession, which we summarize as follows:

1.Prior to making any statements, appellant was warned by the officer taking the statements that he had the right to have a lawyer present to advise him prior to and during any questioning; if he were unable to employ a lawyer, he had the right to have one appointed; he had the right to remain silent and not make any statement at all, and any statement he made could and might be used against him at his trial; and that if he chose to answer questions, he had the right to stop at any time. The appellant was given an opportunity to call an attorney if he wished or of having one appointed if he wished.

2. Appellant knowingly, intelligently and voluntarily waived each of the foregoing rights prior to and also during the making of the statements offered in evidence.

3. Appellant was not coerced into making any statement by any force, threats, persuasion or promises or any other improper influence.

4. Appellant had the mental capacity to understand the warnings given him, and to intelligently, knowingly and voluntarily waive the rights explained to him, and he did understand such warnings.

5. The confessions were voluntarily executed by appellant, and he was not denied the right of counsel.

The court further found, as to the oral confession, that the statement was found to be true which conduced to establish the guilt.

The record fully supports the findings of the court.

The evidence shows that appellant was arrested on October 4, 1972 on another charge. About 10:15 that night, detective Raulston fully informed him of his Miranda and Article 38.22, Vernon’s Ann.C.C.P., rights. After a short conversation, appellant confessed orally to killing deceased, and offered to take officers to the place where he had buried parts of her body. He then accompanied officers to an old abandoned house, where, with his directions, they found a sack containing flesh. When this was found, appellant stated: “See, I told you I put it there,” telling the officers that the parts found were portions of deceased’s body. This was confirmed by appellant in his written confession, supra. The admission of the oral confession under the circumstances was not error. Art. 38.22, subd. 1(e), V.A.C.C.P.; Chase v. State, Tex.Cr.App., 508 S.W.2d 605; Simmons v. State, Tex.Cr.App., 504 S.W.2d 465; Martinez v. State, Tex.Cr.App., 507 S.W.2d 223.

Thereafter, Raulston took appellant before a magistrate, who administered to him the Article 15.17, V.A.C.C.P., warnings. Appellant then made and executed the written confession, which at its top contained the warnings prescribed by Miranda, supra, and Article 38.22, V.A.C.C.P. This confession before being signed was read by appellant, who marked several mistakes as shown by the original.

Appellant’s contention that the oral confession was erroneously admitted in evidence is based on the same arguments made concerning the admissibility of the written confession; it “was not voluntarily made because of the illegal detention of the appellant” and “the fact that he was a mentally retarded person incapable of knowingly and intentionally waiving the rights secured him by the 6th Amendment to the United States of America Constitution, to the effective assistance of counsel at each and every stage of all proceedings.”

Appellant’s contention that the evidence showed that his mentality was such that he could not knowingly and intelligently waive his right to counsel or his right to remain silent is not borne out by the evidence. See Price v. State, Tex.Cr.App., 496 S.W.2d 103; Casias v. State, Tex.Cr.App., 452 S.W.2d 483. The testimony of the officers to whom the confessions were made, and of the newspaper reporter who sat in on the taking of the written confession and witnessed appellant’s signature, verified the fact that appellant, though of low mentality, did understand the warnings, and did voluntarily, knowingly, and intelligently make and sign the written confession. See Price v. State, supra; Casias v. State, supra.

Appellant contends further that the confessions were not admissible because the evidence discloses that he was illegally arrested and detained.

Officer Blaisdale, who was assigned to the Auto Theft Division of the Fort Worth Police Department, testified that at about 3:00 P.M. on October 4th he recovered a stolen motorcycle behind the sewage plant on East 1st Street, a secluded area in the Trinity River bottom. He had information that unknown persons were riding stolen motorcycles which were secreted in that vicinity. While Blaisdale was in the area in his car, during his investigations, appellant, driving a car with two young juveniles, a boy and a girl, as passengers, approached, saw Blaisdale, hesitated, and turned around as if to leave. The officer testified that the road ended before it got to his position. He became suspicious and stopped appellant’s car. He got out of his car, approached appellant, and identified himself as a police officer. Appellant replied: “That’s what 1 thought.” Blaisdale asked to see his driver’s license. While standing outside the car, Blaisdale saw a police radio in the car tuned to Fort Worth police broadcasts. He asked if it was all right for him to search the car and trunk. Appellant consented to such a search. In the car, the officer found two fixed blade knives or daggers under the front seat, a .22 blank pistol, and a brief case full of “obscene” material. At this stage, Blaisdale placed appellant under arrest for investigation for carrying a dagger. See Arts. 483, 487, 1161, Vernon’s Ann.P.C.; Armendariz v. State, Tex.Cr.App., 396 S.W.2d 132.

We conclude that under all the facts and circumstances the officer was authorized to arrest appellant without warrant. Arts. 483, 487, V.A.P.C.

However, assuming arguendo that he had been illegally arrested, a confession otherwise shown to be admissible is not rendered inadmissible by the fact that appellant was under arrest or in custody at the time he makes it, even though the arrest may have been illegal, absent a causal connection between the confession and the arrest. Simmons v. State, Tex.Cr.App., 504 S.W.2d 465; Randolph v. State, Tex.Cr.App., 493 S.W.2d 869; Lacefield v. State, Tex.Cr.App., 412 S.W.2d 906. No illegal detention of appellant was shown. See Simmons, supra; Jefferson v. State, Tex.Cr.App., 503 S.W.2d 779; Martinez v. State, Tex.Cr.App., 507 S.W.2d 223.

We conclude from the record that the court did not err in admitting in evidence the oral and the written confessions.

However, even if the evidence had failed to show that the oral inculpatory statement was proved to be true by what was found as a result thereof, the record reflects that appellant’s written confession contained, in detail, the same information. Since the written confession was properly in evidence, the admission of the oral statement does not present reversible error. Gutierrez v. State, Tex.Cr.App., 502 S.W.2d 746, 749.

The second and third grounds of error are overruled.

In his fourth ground, appellant contends that the court erred in admitting in evidence. certain articles found in appellant’s car at the time of his arrest. Appellant argues under this ground that these articles were seized in “an unwarranted search and seizure of appellant’s car at a time when he was under detention by a police officer and at a time when he had not been effectively warned of his constitutional rights.”

As heretofore stated, the police were justified under the circumstances in stopping appellant’s car and talking to him. The articles admitted in evidence were seized after appellant had given his consent to a search of the car. See Swift v. State, Tex.Cr.App., 509 S.W.2d 586; DeVoyle v. State, Tex.Cr.App., 471 S.W.2d 77.

We have reviewed the contentions of appellant that the exhibits were such as to improperly inflame the minds of the jurors against him. We find that all of the exhibits in question were relevant to the issues raised by evidence, and under the rule laid down in Martin v. State, Tex.Cr.App., 475 S.W.2d 265, the court did not err in permitting them in evidence.

The fourth' ground of error is overruled.

In his fifth ground of error, appellant contends the court erred in overruling his motion for a change of venue. This contention is not supported by any reference to the record, citation of authorities, or any argument or statement other than “The wide news media coverage given to the death of Mary Emma Davis and the arrest and charging appellant with such killing which preceded the trial of the case and continued all during the trial of the sanity hearing and during the trial of the case on the merits was such as would cause a reasonable and prudent person mindful of such duties to the appellant to take extraordinary measures, if necessary, to insure such constitutional rights to a fair and impartial trial by a fair and impartial jury.” This does not comply with the requirements of Art. 40.09, § 9, V.A.C.C.P.

Nevertheless, we have reviewed the transcription of the reporter’s notes of the evidence at the hearing on the motion for a change of venue and of the voir dire of the jury. The record reflects that Tarrant County had, at the time of the trial, a population of over 700,000, with over 300,000 qualified jurors. The evidence was conflicting as to whether appellant could receive a fair and impartial trial in Tarrant County. Appellant does not contend that he was forced to take an objectionable juror. On the record before us, we find no abuse of discretion in overruling appellant’s motion. Art. 31.03, V.A.C.C.P.; Nelson v. State, Tex.Cr.App., 505 S.W.2d 271; Creel v. State, Tex.Cr.App., 493 S.W.2d 814; Clifford v. State, Tex.Cr.App., 424 S.W.2d 233.

In his sixth ground, appellant complains of the court’s failure to sequester the jury, as requested by him. This is a matter within the sound discretion of the trial judge. Art. 35.23, V.A.C.C.P.; Creel v. State, supra; Sierra v. State, Tex.Cr.App., 476 S.W.2d 285. The record reflects that the court frequently admonished the jury that they must not talk with anyone concerning the trial, nor read or listen to any news media about the case. The record does not show any violation of these admonishments. No abuse of discretion is shown. Creel v. State, supra.

The sixth ground of error is overruled.

Appellant next complains because the court overruled his motion for exclusion of the jury panel during voir dire examination and to permit individual examination of the panel members.

In Hogan v. State, Tex.Cr.App., 496 S.W.2d 594, we stated:

“Only in capital cases where the State has made it known it will seek the death penalty does a defendant have the absolute right to a separate examination of each juror under Article 35.17, subd. 1, V.A.C.C.P. Morales v. State, Tex.Cr. App., 466 S.W.2d 293; Moore v. State, Tex.Cr.App., 424 S.W.2d 443.”
See also Brown v. State, Tex.Cr.App., 475 S.W.2d 938.

The instant case was not tried as a capital case where the death penalty was an alternate punishment.

Under the record in the instant case, no abuse of the court’s discretion is shown. The ground of error is overruled.

In his eighth ground, appellant complains of the of the trial court’s refusal to grant him additional peremptory challenges. Appellant does not discuss this complaint under his ground of error, cites no authority, and does not indicate where in the lengthy record any such request and refusal was made. Hence, nothing is presented for review. Art. 40.09, § 9, V.A.C.C.P.; Pearce v. State, 513 S.W.2d 539; Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491.

Furthermore, appellant does not claim that the court erroneously overruled any of his challenges for cause or that any objectionable juror was forced upon him. No error is shown. Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374.

Appellant next complains of the court’s overruling his motion to require the State to elect upon which theory of murder alleged in the indictment it would rely for conviction.

The indictment alleged that appellant killed deceased by “cutting her with a knife and hitting her in the head with an iron skillet.” The evidence reflects that in a single transaction appellant in his assault upon deceased cut her throat with a knife and hit her several hard blows on the head with an iron skillet, and as a result, she died. A single offense was involved. Under these circumstances, the court did not err in refusing to require an election as to the means used to accomplish her murder and in charging in the alternative both means named in the indictment. See Branch’s Ann.Penal Code, 2d Ed., Vol. 1, Sec. 464, et seq., p. 459; DeMary v. State, Tex.Cr.App., 423 S.W.2d 331. Smith v. State, 153 Tex.Cr.R. 25, 216 S.W.2d 978; Bumry v. State, 150 Tex.Cr.R. 6, 198 S.W.2d 887. The ground of error is overruled.

In his tenth ground, appellant contends jury misconduct occurred in that during the deliberation the jury discussed the failure of appellant to testify.

Eleven jurors testified at the hearing on the motion for a new trial. Five testified that one juror made a reference to the appellant’s failure to testify, and that he was immediately admonished that this was not to be considered. They said no further mention was made of such failure to testify. The other six jurors did not recall any reference to the appellant not testifying, and one of the six stated that it had not been referred to. No reversible error is shown. Ward v. State, Tex.Cr.App., 520 S.W.2d 395; Broussard v. State, Tex.Cr.App., 505 S.W.2d 282; Ratliff v. State, Tex.Cr.App., 490 S.W.2d 844; Howard v. State, Tex.Cr.App., 484 S.W.2d 903.

In his eleventh ground, appellant complains of eleven different instances of alleged improper jury argument by reference to page numbers in the record. No authorities are cited, and no argument is made other than the single statement that “All such jury arguments were improper and prejudicial to appellant in his right to a fair and impartial trial by a fair and impartial jury.” The ground of error does not comply with the requirements of Art. 40.09, Sec. 9, and presents nothing for review. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; Elizalde v. State, 507 S.W.2d 749; Lombardo v. State, Tex.Cr.App., 503 S.W.2d 780; Fuller v. State, Tex.Cr.App., 501 S.W.2d 112.

However, we have reviewed the arguments of the prosecution on the pages of the record referred to by appellant and find nothing stated in such arguments which would constitute reversible error.

The eleventh ground of error is overruled.

Appellant next alleges error in the admission in evidence of State’s Exhibits 1, 2, 6, 7, and 8, being photographs showing the bloody scene where the body was found and the dead body of the deceased. These photographs were pertinent to the injuries suffered by deceased and to a description of the place where the killing occurred. They were material to the corroboration of the confessions, oral and written, of appellant. Some of the photos were used by the pathologist in support of his evidence. So long as the pictures accurately represent what they purport to depict and are logically relevant, their gruesome and prejudicial character does not cause them to be inadmissible. Brown v. State, Tex.Cr.App., 508 S.W.2d 91; Byrd v. State, Tex.Cr.App., 495 S.W.2d 226; Terry v. State, Tex.Cr.App., 491 S.W.2d 161; Martin v. State, Tex.Cr.App., 475 S.W.2d 265.

The twelfth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.


source: Caselaw Access Project

license: Public Domain

text:
    Grant LOCKRIDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 49773.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Rehearing Denied May 21, 1975.

      John E. Trube, Tyler, for appellant.
    Curtis L. Owen, Dist. Atty., Howard W. Britain, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant was convicted of sale of marihuana, shown to have occurred January 9, 1973. Punishment was assessed at five years probated.

In his sole ground, appellant complains of error of the trial court in overruling his plea of former jeopardy.

When the case was called for trial on March 25, 1974, a hearing was had before the court on appellant’s plea of former jeopardy. The record of the proceedings in that hearing reflects that on Tuesday, March 12, 1974, the case was called for trial and a jury was selected and sworn. Since the court was then engaged in another narcotic trial, the jury was excused until 1:30 P.M., Thursday, March 14. The indictment was not read to the jury, and appellant did not plead to the indictment.

During the morning of March 14, the court was notified by the prosecuting attorney that an important State witness was in Michigan, and it was not known when he would return. Also, the trial of the other narcotic case had not been finished. The trial judge informed the defense attorney of these matters, and further told him that the court was apprehensive about leaving the jury out over the weekend for fear the jurors might “become contaminated with extraneous information.” Although the evidence raised a fact issue concerning the conversation, the court stated that counsel for appellant readily agreed to have the jury discharged and, in fact, was delighted at the turn of events. Thereupon, the court instructed the clerk to notify the jurors that they were discharged.

The trial court overruled the plea of former jeopardy, and on March 25th proceeded with the trial of the case before another jury.

As stated in his brief, “It is appellant’s position that at the time the jury was discharged by the Trial Court, the Defendant was in danger of conviction and punishment. The hazard was present and the peril of his situation apparent.”

However, although both the State and appellant had announced ready, and the jury had been empaneled and sworn, the indictment had not been read to the jury and appellant had not plead before the jury.

In Vardas v. State, 518 S.W.2d 826 (1975) we held that “jeopardy does not attach until a defendant pleads to the indictment”, and that “mere pleading at arraignment does not place a defendant in judicial jeopardy.”

The statement in Serfass v. United States, - U.S. -, 95 S.Ct. 1055, 43 L.Ed.2d 265: “in the case of a jury trial, jeopardy attaches when the jury is empaneled” is dictum as to the issue before the Court, and is not supported by the authorities there cited. The question before the Court was “whether a court of appeals has jurisdiction of an appeal by the United States from a pretrial order dismissing an indictment based on a legal ruling made by the District Court after an examination of records and an affidavit setting forth evidence to be adduced at trial.” The 3rd Court of Appeals held that it had jurisdiction, and that jeopardy had. not attached. United States v. Serfass, 3 Cir., 492 F.2d 388. The holding of the Supreme Court is expressed in the final sentence of its opinion as follows:

“We hold only that the Double Jeopardy Clause does not bar an appeal by the United States under 18 U.S.C. § 3731 with respect to a criminal defendant who has not been put to trial before the trier of facts whether the trier be a jury or a judge. United States v. Jorn, [400 U.S. 470, at 479, 91 S.Ct. 547, at 554, 27 L.Ed.2d 543].”

In a jury case, this Court has consistently held that a defendant has not been “put to trial” until he has plead to the indictment before the jury.

Neither is Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), cited in Serfass, supra, controlling. There, after the jury had been empaneled and sworn, the indictment was discovered to be fatally defective, and the State’s motion for a mistrial was granted. Subsequent trial was on a new indictment. The Court held that jeopardy had not attached. See Ward v. State, 520 S.W.2d 395, (1975).

The other case cited in support of the dictum in Serfass, supra, is Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. In that case, the facts show that the Court, in its ruling that jeopardy had attached, relied on the fact that counsel for accused objected in open court to the mistrial. In the instant case, the facts show that defense counsel had readily agreed that the situation called for the dismissal of the jury and a mistrial.

Likewise, in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed. 543 (1971), lack of consent to “abort the proceeding” was a determining issue in the Court’s holding that jeopardy had attached.

We conclude, under the facts of the instant case, that jeopardy had not attached. Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The docket sheet has a notation that appellant had been arraigned on May 2, 1973, and had plead not guilty.


author: DAVIS, Commissioner.

text:
    Augustine Santos ACOSTA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49892.
    Court of Criminal Appeals of Texas.
    April 30, 1975.

      L. J. Krueger, Liberty, on appeal only, Pieratt & Saur, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., and Phyllis Bell and Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at fifty years.

The sufficiency of the evidence is not challenged.

Appellant contends the court erred in re-refusing to grant his motion for mistrial for the reason that an illegal juror served on the jury.

The record reflects that appellant exercised one of his peremptory challenges by striking the thirteenth name, Mrs. James L. Byrd, on his jury list. After the voir dire examination was concluded and both sides had exercised their peremptory challenges, the court advised the panel that those whose names were called by the clerk would take a seat in the jury box. Among the names called by the clerk was Mrs. James L. Byrd. After Mrs. Byrd and eleven other persons were seated in the jury box, the record reflects the following occurred:

“THE COURT: Any objection to the panel as selected?
“MR. GRAHAM [Prosecutor]: No, your honor.
“MR. WILLIAMS [Counsel for appellant] : No objection, your honor.”

After the return of a verdict of guilty, appellant requested that the jury be polled. After each juror had been asked if the verdict read were his verdict, the appellant moved for a mistrial, stating, “We were under the impression all the time that Mr. Doublin was on the jury. We had a specific strike on Mrs. Byrd.”

In Anderson v. State, 142 Tex.Cr.R. 384, 154 S.W.2d 482, where a juror whose name was not called took his place in the jury box thinking his name was called and was impaneled on the jury, and it was not until the next day after the case had proceeded to trial that the district clerk discovered that a juror had been mistakenly impaneled, this Court held the overruling of defendant’s motion for mistrial was not error in the absence of a showing that the juror mistakenly impaneled was prejudiced. In Anderson> it was further noted:

“It is the duty of the parties to see that, as impaneled, the box does not contain a juror who has been challenged by striking; should such a juror remain and be sworn, the court is not obliged to discharge him and substitute another juror. A fortiori, the verdict is not vitiated thereby — at least unless the complainant can affirmatively show that the unaccepted juror was prejudiced.”

In Anderson the Court cited Munson v. State, 34 Tex.Cr.R. 498, 31 S.W. 387, where the defendant urged that the trial court erred in refusing to excuse a juror “that he challenged ... on the list handed him.” Such request was not made until after said juror was seated in the jury box, the jury was sworn, the indictment was read, and the defendant had entered his plea. In Munson, it was stated:

“He [defendant] should have discovered the mistake before the jury was sworn, and then made his motion to withdraw his plea, and discharge the jury, and draw another jury. But, conceding that he had the right to have the juror set aside after he made the discovery, no injury appears to have resulted, as no opinion as to the case, or animus or prejudice, is shown to have existed on the part of the juror against appellant.”

Appellant urges that the Anderson case is distinguishable from the instant case in that no lack of diligence is shown in the instant case in discovering the presence of Mrs. Byrd on the jury, and Mrs. Byrd’s answers to questions asked on voir dire reflect that she was a likely candidate for a peremptory challenge. Appellant argues that when a peremptory challenge has been made, it is contradictory to maintain that the person challenged cannot be removed from the jury unless it be shown that such person is prejudiced.

Anderson v. State, supra, states that it is the duty of the parties to see that, as impaneled, the jury box does not contain a juror who has been challenged by striking. It is undisputed that Mrs. Byrd’s name was called and she was seated in the jury box, and the court inquired if there were any objections to the panel as selected, to which appellant answered, “No objection, your honor.” Anderson v. State, supra, speaks in terms of duty upon the parties to determine that the jury box does not contain a challenged juror. Further, assuming, arguendo, that the diligence used by the complaining party is discovering a challenged juror in the jury box is a factor to be considered, we find that such argument is of no avail to appellant in the instant case where the juror’s name was called, she was seated in the jury box, and appellant expressly stated that he had no objection to the jury selected.

There can be no argument about appellant’s correctness in urging that a peremptory challenge can be made without a showing of prejudice. Art. 35.14, Vernon’s Ann.C.C.P. However, a different standard necessarily applies in removing a person from a jury where, as in the instant case, the juror had served as a member of the jury which had returned a verdict at the guilt stage of the trial before any objection was raised as to her presence on the jury. Anderson v. State, supra; Munson v. State, supra; 35 Tex.Jur.2d, Jury, Sec. 133 (1960).

Appellant points to the fact that on voir dire examination Mrs. Byrd stated that her husband worked as a “volunteer with the sheriff’s department” and, in response to the question about how often he did this work, Mrs. Byrd responded, “Oh, whatever the requirement is, just every so often.” The foregoing answers of Mrs. Byrd, standing alone, do not constitute an affirmative showing that Mrs. Byrd was prejudiced.

No error is shown in the court refusing to grant appellant’s motion for a mistrial.

In his remaining contention, appellant argues that if Mrs. Byrd’s presence on the jury at the guilt stage of the trial does not constitute reversible error, then her continued participation as a juror at the punishment stage requires reversal. Before entering a plea of not guilty, appellant duly filed his motion in writing that the jury assess punishment in the event a verdict of guilty was returned. See Art. 37.07, V.A.C.C.P. Appellant’s argument appears to be bottomed on the proposition that one jury can return a verdict of guilty and still another jury can be impaneled to assess punishment. We cannot agree with appellant’s suggestion that Whan v. State, Tex.Cr.App., 485 S.W.2d 275 authorizes such procedure.

The judgment is affirmed.

Opinion approved by the Court.


author: BARROW, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY et al., Appellants, v. Mrs. Oleta GRAVITT et al., Appellees.
    No. 15432.
    Court of Civil Appeals of Texas, San Antonio.
    April 16, 1975.
    Hubert W. Green, Green, Kaufman & Lanfear, Groce, Locke & Hebdon, Jack Hebdon, Thomas H. Crofts, Jr., San Antonio, for appellants.
    Pat Maloney, San Antonio, for appellees.
   BARROW, Chief Justice.

This is an appeal from an interlocutory order granting appellees, Mrs. Oleta Grav-itt, a widow, Individually and as Executrix of the Estate of T. O. Gravitt, Deceased, Michael Gravitt, Patrick Gravitt, and James H. Ashley, a temporary injunction restraining appellants, Southwestern Bell Telephone Company, C. L. Todd, and American Telephone and Telegraph Company, from wiretapping appellees’ telephone conversations and from destroying certain records pertaining to appellees’ causes of action, if such records exist.

Appellants assert eleven assignments of error. The first three urge that the order of the trial court is an abuse of discretion, void and invalid because it does not meet the mandatory requirements of Rule 683, Texas Rules of Civil Procedure (1967). Appellants assert by the other eight points that the trial court made no fact findings in support of the order and, in any event, there is no evidence or insufficient evidence to support the findings necessary for issuance of the order.

Rule 683, provides in part that: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; . . . .” It is settled law that under the explicit language of this rule it is mandatory that the reasons for issuing an injunction be stated in the order. State v. Cook United, Inc., 464 S.W.2d 105 (Tex.1971); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Round Mountain Community v. Fulkes, 501 S.W.2d 474 (Tex.Civ.App.—Austin 1973, no writ); Schulz v. Schulz, 478 S.W.2d 239 (Tex.Civ.App.—Dallas 1972, no writ); McCullough v. Fidelity Union Life Insurance Co., 470 S.W.2d 209 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.); Sigma Systems Corp. v. Electronic Data Systems Corp., 467 S.W.2d 675 (Tex.Civ.App.—Tyler 1971, no writ); 6 Lowe, Texas Practice, Section 241 (1973).

The order entered herein wholly fails to comply with this mandatory requirement. The order recites only that “. . . the Court having considered the evidence and argument of counsel and the law, finds that the Plaintiffs are entitled to a temporary injunction as herein granted, the same being within Plaintiffs’ allegations and prayer; the Court after hearing the testimony is of the opinion and finds that a temporary injunction should be issued as hereinafter set forth.” Thus, the order does not contain any reasons why injury will be suffered by appellees if interlocutory relief is not ordered.

Appellees urge by an affidavit of their attorney that said attorney prepared a draft of the proposed judgment which contained reasons for issuance of the temporary injunction, but that appellants’ attorneys refused to agree to the entry of this draft. The rule is established that the Court of Civil Appeals may receive evidence in the form of affidavits only to supply jurisdictional facts not apparent of record. Leuer v. Smith, 335 S.W.2d 775 (Tex.Civ.App.—San Antonio 1960, no writ). Since the affidavit of appellees’ attorney is not a part of the record on this appeal and does not relate to our jurisdiction, it may not be considered by us. Assuming that there was a dispute between counsel over the form of the judgment, the fact remains that the order which was entered by the trial court does not contain the reasons for issuance of the order as required by Rule 683.

Appellees also urge that the order in this case meets the requirements approved by the Supreme Court in State v. Cook United, Inc., supra. We disagree. There, the Court, in approving the order granting the temporary injunction to State, pointed out that Section 4 of Article 286a, Vernon’s Tex. Penal Code Ann., declares the violation of the Act to be a public nuisance and expressly authorizes an injunction restraining the violation. The Court said: “Without Section 4 of the statute, it would be necessary for the court to state in the order why it decided that the applicant would suffer harm, or be endangered by probable injury, if not granted the preliminary injunction.” Here not only is there no such statutorily declared public nuisance, but also this suit for damages involves only private rights. Cf. Davies v. Unauthorized Practice Committee of State Bar of Texas, 431 S.W.2d 590 (Tex.Civ.App.—Tyler 1968, writ ref'd n. r. e.).

Since the requirement of Rule 683 that the order set out specifically the reasons for granting the temporary injunction is mandatory, the failure to comply constitutes reversible error. It is, therefore, unnecessary for us to consider appellants’ points complaining of the sufficiency of the evidence to support the order, and we express no opinion as to the merit of these points.

The order granting the temporary injunction is reversed, and it is here rendered that same be dissolved.

KLINGEMAN, J., not participating.


author: PER CURIAM. BISSETT, Justice.

text:
    Garvin PARK, Administrator, Appellant, v. Simon HOMINICK, removed Administrator, Appellee.
    No. 956.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 19, 1974.
    Rehearing Denied April 24, 1975.

      H. William Schneider, El Campo, for appellant.
    James A. Bouligny, Duckett, Bouligny & Collins, El Campo, for appellee.
   OPINION

PER CURIAM.

Appellant Garvin Park, Administrator, is appealing from the “Order Approving Final Payments” in the Estate of Jennie Pos-pishill Hominick, Deceased. The order was entered by the Judge of the county court of Wharton County on September 25, 1974. Notice of appeal was filed by appellant on September 25. The attorney for appellant tendered the transcript to the Clerk of this Court for filing on November 25, 1974. Our Clerk did not file the transcript because it did not contain the notice of appeal, the bill of costs, the Clerk’s Certificate or appeal bond. On November 27, 1974, the appellant filed a Motion to file supplemental transcript on the grounds that the county clerk had erroneously and inadvertently omitted the listed items (except the appeal bond) from the original transcript and requested that they be permitted to be filed in a supplemental transcript. The Clerk of the Court of Civil Appeals advises this Court that the appellant, the administrator of the estate, did not file an appeal bond with the clerk of the trial court. He argues that he as administrator does not need to file an appeal bond relying on Section 29 of the Probate Code, V.A.T.S.

The question facing this Court is whether the appellant, as administrator of the estate acting in his fiduciary capacity, is required as a jurisdictional requisite to file an appeal bond in order to properly perfect his appeal from a statutory court exercising probate jurisdiction directly to the Court of Civil Appeals.

Effective November 6, 1973, Article 5, § 8 of the Texas Constitution was amended, Vernon’s Ann.St. It now provides, among other things, that the legislature may adopt rules governing appeals in probate matters to the Courts of Civil Appeals. Effective the same date, Section 5 of the Texas Probate Code was amended to read in part as follows:

“ * * * In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdictions of a probate court, all applications, petitions and motions regarding probate, administrations, guardi-anships, and mental illness matters shall be filed and heard in such courts, and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any such courts. In such counties all final orders in such matters shall be appeala-ble to the courts of (civil) appeals. . Amended by Acts 1973, 63rd Leg., p. 1684, ch. 610, § 1.”

The present appeal was taken directly from the probate court to the Court of Civil Appeals in compliance with this new section of the Probate Court.

Before Section 5 of the Probate Code was amended, an appeal from the probate court to the district court resulted in a trial de novo, although it was tried on the same issues as were presented in the trial court. Now, however, the appeal of the probate matter to the Court of Civil Appeals is strictly in the form of an appellate review of the probate court’s judgment, and there is no trial de novo. Rules 352-369a, Texas Rules of Civil Procedure, prescribe the basic procedures necessary to perfect an ordinary appeal to the Court of Civil Appeals. Specifically Rule 354 provides for the filing of a cost bond to be approved by the Clerk, the purpose being to insure that the appellant shall prosecute the appeal with effect and pay all costs which have accrued in the trial court and the cost of the statement of facts and transcript. Rule 355 governs the situation where the party is unable to give a cost bond. Rule 363, T.R.C.P., provides that an appeal is perfected to the Court of Civil Appeals when the notice of appeal is given and the bond 'or affidavit in lieu thereof has been filed. (Emphasis supplied.) Rule 356, T.R.C.P., states that “whenever a bond for costs on appeal is required, the bond shall be filed with the Clerk within thirty days after rendition of judgment or order overruling motion for new trial.” These rules form the framework for the vast majority of appeals taken to the Courts of Civil Appeals.

In the past, the statutory provisions which have controlled appeals taken from the probate court to the district court were Section 29 of the Probate Code and Article 2276, Vernon’s Ann.Civ.St. Section 29 of the Probate Code reads as follows:

“When an appeal is taken by an executor, administrator, or guardian, no bond, shall be required, unless such appeal personally concerns him, in which case he must give the bond.”

Article 2276, V.A.C.S., reads as follows:

“Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.
Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.”

When the Legislature amended Section 5 of the Probate Code, it enacted no special rules for filing a bond when an appeal from the probate court to the Court of Civil Appeals was taken. Although the great majority of cases appealed to this Court are governed by Rules 352-369a, requiring a bond to be filed by an appellant in Order to give this Court jurisdiction of the cause, we believe that Section 29 of the Probate Code when read with Article 2276, V.A.C.S. exempting an appeal bond, carves out an exception in the instant case when the administrator (or executor or guardian) of an estate, acting in his fiduciary capacity, takes an appeal from the probate court directly to the Court of Civil Appeals.

We hold that the fiduciary’s notice of appeal perfects his appeal and that no appeal bond is necessary. See Douglas v. Douglas, 167 S.W.2d 774 (Tex.Civ.App.—Eastland 1942, no writ). Since the appellant in the case at hand gave timely notice of appeal and has followed the other prescribed procedural steps, the cause shall be docketed without requiring an appeal bond by the appellant.

The appellant’s motion to file a supplemental transcript is granted.

SUPPLEMENTAL OPINION

BISSETT, Justice.

This is an appeal from an order of the probate court of Wharton County, Texas, that directed the successor administrator to pay claims for certain expenses incurred by a former administrator and for attorney’s fees for legal services furnished the former administrator. Garvin Park, the successor administrator of the Estate of Jennie Pospishill Hominick, Deceased, was ordered by the county court of Wharton County, sitting in probate, to pay $1,461.22 to Simon Hominick, the former administrator of the estate, as reimbursement for expenses of the estate which were paid by him out of his own funds while he was administrator of the estate, and to pay $100.-00 to James A. Bouligny as attorney’s fees for legal services rendered the estate. Garvin Park, hereinafter referred to as “Park”, has perfected an appeal to this Court from that order.

The record on appeal consists of a transcript only. It does not contain an order that removed Simon Hominick, hereinafter referred to as “Hominick”, as administrator of the estate. Park, however, states in his brief that Hominick was removed as administrator on March 7, 1973, and in the order of removal was required to file a final account of his administration to be approved by the probate court prior to the release of any obligations under his bond. The statement has not been challenged by Hominick. Park the successor administrator, was appointed sometime prior to March 22, 1974. The exact date of his appointment is not shown by the transcript. The administration of the estate had not been closed at the time notice of appeal in this case was given.

Hominick filed his final account on July 5, 1973, wherein he listed certain unpaid claims due and owing by the estate. Included therein was a claim in his behalf in the amount of $1,146.18 for statutory commissions on receipts and disbursements due him as administrator of the estate, and a claim of Bouligny in the amount of $4,818.00 for attorney’s fees in connection with the furnishing of certain enumerated legal services to the estate. The accounting, as filed, did not contain a claim for reimbursement for expenses paid by Hom-inick out of his own funds in connection with the administration of the estate during his tenure as administrator, nor did it contain a claim for attorney’s fees for preparing the final account.

On April 10, 1974, Bouligny filed a claim for $100.00 as attorney’s fees for legal services furnished the estate in connection with the “preparation of final accounting, supplemental accounting, and order of the court”. On April 15, 1974, Hominick filed a claim for $1,461.22 for “actual expenses as shown by the exhibits filed with the supplemental accounting for the years 1969,1970,1971 and 1972”.

The final account was amended by Hom-inick on April 15, 1974, when he filed a supplemental final account. The amendment restated the administrator’s commissions due Hominick to be $788.14 (instead of $1,146.18), and the attorney’s fees due Bouligny to be $4,283.90 (instead of $4,818.00). In addition to the aforesaid claims for administrator’s commissions and attorney’s fees, Hominick claimed that he was entitled to $1,461.22 for “out of pocket expenses” paid out of his own funds in connection with the performance of his duties as administrator, and that Bouligny was entitled to an additional $100.00 as attorney’s fees for preparing the final and supplemental accounts.

An order entitled “Order Approving Final Account and Discharging Administrator” was rendered by the court on May 21, 1974. The court, in the order, observed that a final accounting had been filed in July, 1973, and that a supplemental accounting was filed on April 15, 1974. The court ordered $788.14 to be paid to Homin-ick as administrator’s fees, and $4,283.00 to be paid to Bouligny as attorney’s fees. The order did not disallow Hominick’s claim for expenses or Bouligny’s claim for additional attorney’s fees. Hominick was discharged as administrator and his bondsmen were released from all liability on the bond. No one perfected an appeal from that order.

Hominick, by a written pleading filed on September 23, 1974, requested that his application for “reimbursable expenses”- be set for hearing. Park, in his capacity as administrator, filed written objections to any such hearing on the ground that “the entire accounting of the prior administrator has been approved and he has been discharged and, therefore, there is no necessity for the hearing”. The court conducted a hearing on the matters urged by Homin-ick on September 25, 1974, and on the same day signed an order which allowed the claims, and ordered Park, as administrator, to pay them. That order, signed on September 25, 1974, is the order which has been appealed to this Court.

Park, in two points of error, contends that the court did not have jurisdiction to order the former administrator’s expenses and additional attorney’s fees to be paid, since the May 21, 1974 order became final before the September 25, 1974 order was made. He argues that the September 25, 1974 order is a nullity because the May 21, 1974 order “purported to settle all claims under the final account of the removed administrator”. We do not agree.

Expenses necessarily and reasonably incurred by an administrator in connection with the preserving, safekeeping, managing and distributing the estate of a decedent are valid charges against the estate. That rule is well settled, and citation of authorities is not necessary. Included in legitimate expenses of administration, are monies paid by the administrator out of his own funds for the benefit of the estate, provided such expenditures are proper in their nature and reasonable in amount. An administrator should be reimbursed if he has paid debts or expenses of the estate with his own money.

While both the final account and the supplemental account (which constituted an amended final account) were before the probate court when the order of May 21, 1974 was signed, it is clear that the court, with respect to this appeal, ordered that payment of administrator’s fees ($788.14) and attorney’s fees ($4,283.00) as set out in the amended final account, be made by' the duly authorized representative of the estate, and nothing more. The order did not purport to settle all claims against the estate in existence at that time. No mention was made therein of the claim by Hominick for expenses or of the claim of Bouligny for $100.00 as additional attorney’s fees. The approval of the final accounting of Hominick, his discharge as administrator, and the release of his bondsmen from all liability on Hominick’s bond, did not alter, impair or affect any proper, legitimate and reasonable claims against the estate which were left unpaid on that date. The disputed claims, which were filed after Hominick was removed as administrator but before he and his bondsmen were relieved from liability on the administrator’s bond were still pending and had not been acted upon by the court when the May 21, 1974 order was signed. No contention is made that the $1,461.62, expended by Hominick out of personal funds, was not expended for the benefit of the estate or those ultimately entitled to the estate properties upon distribution of the assets belonging to the estate. The additional attorney’s fees and “expenses” are not challenged because of fraud, impropriety, unreasonableness or for any other reason.

The May 21, 1974 order did not close the administration on the estate. It was a final order only in the following particulars: 1) the final accounting detailed by Hominick in his final account, as amended by the supplemental account, was approved; 2) his administrator’s fees ($788.14) were ordered paid; 3) attorney’s fees ($4,283.00) were ordered paid; 4) Hominick was ordered to deliver all assets of the estate to Park; 5) Hominick (although having been theretofore removed as administrator) was discharged as administrator; and 6) Homin-ick’s sureties were released from all liability on the administrator’s bond.

The claims for administrator’s expenses and for additional attorney’s fees were not disposed of by the May 21, 1974 order, and that order was not a final order with respect to those claims. The court had jurisdiction to order payment of the claims. Nothing has been presented that warrants a reversal in this case. We have considered all of the points of error which have been brought forward by Park, and they are all overruled.

Affirmed.


author: CHADICK, Chief Justice. RAY, Justice

text:
    PAPCO, INC., Appellant, v. Jimmy EATON, Appellee.
    No. 8227.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 28, 1975.
    Rehearing Denied March 25, 1975.

      Lancaster Smith, Harvey L. Davis, Dallas, James H. Verschoyle, Atlanta, for appellant.
    Carl Roth, Franklin Jones, Jr., Marshall, for appellee.
   CHADICK, Chief Justice.

During construction of a manufacturing plant for International Paper Company in Cass County, Texas, Papco, Inc., the general contractor for the project built and supplied a scaffold for the employees of Southern Electrical and Piping Corporation, a subcontractor hereafter called Sep-co, to use in performing construction work. Jimmy Eaton, an employee of the subcontractor, was on the scaffold deck engaged in doing overhead welding just prior to sustaining injury. The scaffold’s deck or work floor where Eaton worked had two by six inch “toe boards” nailed to frame its outer edges and form a six inch high rim around the deck’s topside. The toe boards were useful in preventing tools, material or other objects on the deck from being accidentally dislodged and, as shown by evidence in the record, the boards were frequently used as handholds by persons climbing up or down the scaffold ladder. Eaton immediately before injury, began to climb down the scaffold on the steel ladder built into the framework and in lowering himself Eaton grasped, as a handhold, the toe board next to the ladder. The toe board pulled loose causing Eaton to fall backwards to the ground some twenty-five to thirty feet below. Eaton’s injury was severe.

Whether Papco, the general contractor is considered an occupier of land or the supplier of a chattel (the scaffold), its liability for injury to Eaton is that of an occupier of land to a business invitee thereon. Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967); McKee General Contractor Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Roosth & Genecov Production Co., v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950).

Warren Aulds, Superintendent in charge of all Sepco pipefitting as well as supervis- or over the particular welding work Eaton was performing at the time of injury, testified that Papco management personnel had warned him, Aulds, that it was dangerous to use scaffold toe boards as handholds in ascending and descending the scaffold. He swore that aside from any warning from Papco management, he personally knew such use to be dangerous and had, through channels designated by Sepco's contract with the pipefitter union, warned the men under his supervision of the danger of using scaffold toe boards for handholds.

The opinion in Delhi-Taylor Oil Corporation v. Henry, supra, declares the law to be well settled that an occupier of land (such as Papco) may be relieved of liability for harm to invitees thereon (such as the subcontractor’s employee Eaton) resulting from dangerous conditions on the premises that are not open and obvious by taking proper precautions to protect such invitees from danger or by warning them thereof. The rule is supported by Halespeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963) and Western Auto Supply Company v. Campbell, 373 S.W.2d 735 (Tex.1963). On the basis of policy discussed therein Delhi-Taylor further holds that “an adequate warning to an independent contractor or one supervising his work will discharge the duty of the landowner or occupier to warn the employees of the independent contractor” of a dangerous condition on the occupier’s premises.

The trial court undertook to allow the jury to determine whether or not the danger warning given by Papco was adequate. The two special issues submitted and the jury’s answer thereto are as follows, to-wit:

“Sp. Issue No. 5: Do you find from a preponderance of the evidence that on the occasion in question the Defendant, Papco, through its agents, servants or employees, had given adequate warning to the Sepco Supervisor, Warren Aulds, that there was a risk of harm to a person using the toe board as a handhold in descending a scaffold.

(Jury) Answer: We do not.

Sp. Issue No. 6: Do you find from a preponderance of the evidence that on the occasion in question the Sepco’s Supervisor, Warren Aulds, had full knowledge that there was a risk of harm to a person using the toe board as a handhold in descending a scaffold.

(Jury) Answer: We do not.”

Papco moved the trial court to disregard the jury’s verdict on both special issues because “the uncontradicted and undisputed testimony of Warren Aulds, the Sepco supervisor, was that he had been given adequate warning, time and again, that there was a risk of harm to the person using the toe board as a handhold in descending a scaffold and that at the safety meetings he had acquired full knowledge that there was a risk of harm to a person using the toe board as a handhold in descending a scaffold.”

Attention has not been called to any direct evidence, except that of Aulds bearing upon the issues. Warren Aulds was an interested witness and his uncontra-dicted testimony merely raised an issue of fact for jury determination. It was not conclusive. A witness in a case is interested, and the credibility and weight to be given such witness’ testimony is a question solely for the jury, when the record shows a reasonable basis for the witness harboring a partisan attitude towards the outcome of the case. 98 C.J.S. Witnesses, § 538; Tex. Jur. 2d Witnesses, Sec. 374. The testimony of an interested witness only raises an issue for jury determination; it is only when such testimony is “clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach” the witness that such testimony must be given probative effect. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965); Tex.Jur.2d Witnesses, Sec. 373. Aulds candidly testified that he could not expect to progress as a contruction superintendent if he was indifferent to safety standards and procedures or if the incidence of employee injury, while under his supervision, was unusually high. The jury could have reasoned that it would have been to Aulds’ interest to show that Eaton was injured as a result of Eaton’s independent conduct and violation of warnings; that Aulds was influenced by self interest to testify that Eaton’s injury was not the result of Aulds’ lack of knowledge of danger or failure to impart it; or that Aulds was interested in minimizing or shifting from himself responsibility for the occurrence.

During the trial of the case George Kell and James J. Turchi were employed at the International Paper Company’s mill in Cass County, some twenty-five miles from Linden the county seat and site of the trial. Kell was employed in the plant’s maintenance department and Turchi as safety director. On May 8, 1972, the day Eaton was injured, both were employed in plant construction at the paper mill site. Kell was a pipefitter foreman for Sepco under general supervision of Warren Aulds and Turchi was safety director in charge of the construction safety program acting, according to his testimony, for Pap-co and Sepco, as well as International Paper. At trial time both Kell and Turchi were amenable to subpoena as witnesses under the provisions of Texas Rules of Civil Procedure rule 176.

Testimony closed and the parties rested in the introduction thereof the afternoon of Wednesday, October 2, 1973. The judge and counsel for the parties were engaged that afternoon with preparation of the charge to the jury. At ten o’clock the next morning Thursday, October 3, counsel for Eaton requested leave to reopen the case to present Kell as a rebuttal witness. Objection was made by Papco on the grounds that the witness had been available to Eaton by subpoena or otherwise throughout the trial and that Aulds was no longer available to testify as he had returned to the State of Oregon. The court reopened the case to permit Kell to testify. At one o’clock Thursday afternoon Kell was produced as a witness and interrogation ended shortly after two o’clock. At such time Papco’.s counsel requested and was granted a short recess. Thereupon such counsel telephoned Turchi at the International Paper plant and was told by Turchi, that he, Turchi, could be present in court in twenty-five to thirty minutes. Turchi was instructed to come in and did appear at the courthouse within such time. However, when counsel for Papco returned to the courtroom and reported his desire to offer Turchi as a witness, the request was denied. In the bill of exception preserving Turchi’s testimony the trial judges’ questions developed that Turchi resided within one hundred miles of the county courthouse and had been interviewed by Papco’s counsel prior to trial and had been available to testify as a witness for Papco on thirty minutes notice throughout the trial.

Aulds’ testimony adduced in the trial in chief was noticed earlier. In brief, he said that Papco supervisory personnel had warned him of the danger of using a toe board as a handhold and that he passed the warning on to to his general pipefitter foremen, including Kell, with instructions that the warning be given employees. Likewise adduced in the trial in chief, though in behalf of Eaton, was testimony of two pipefitter foremen. The first, Jimmy Brown, a crew foreman, said he could not recall mention being made by anyone in a safety meeting that toe boards were not to be used as a handrail. He also said that safety meetings were held by a general foreman and not by a superintendent or the safety director. The second to testify, Billy Pat Adcock, a general foreman, stated that neither Aulds nor anyone else instructed him or any workman on the job not to use toe boards as handholds and that he was never in a safety meeting with Aulds, though Aulds had been superintendent over him at various times.

After the case was reopened, on direct examination Kell testified that Aulds did not tell him that he, Aulds, had been told by Papco people not to use toe boards as handholds, nor had Aulds instructed him, Kell, to instruct those working under him not to so use toe boards. Kell also testified that his crews held safety meetings every Monday morning and made written reports thereof to Aulds. On cross-examination Kell testified his safety meetings were rather informal and that Aulds did not attend. Climatically, on redirect examination Kell testified that Aulds never told him, Kell, not to use toe boards as handholds and if Aulds so testified Aulds’ word could not be relied upon.

James J. Turchi’s testimony, as incorporated in a bill of exceptions, was in part as follows:

“Q. Now, in your meeting before May 9, 1972, did you ever have any discussion with Mr. Aulds, concerning the use of toe boards, as handholds on a scaffold?
A. Yes.
Q. And what were those discussions?
A. We had had an accident prior to this one, in the power plant one of these board had pulled loose. The man did not suffer any severe injuries, but we had recommended to these superintendents that they have people not grasp the toe boards in climbing down . to use the handrails or upright posts ... or the ladder on the scaffold.
Q. Was that about the month or six weeks before . . . ?
A. Approximately six weeks prior to this accident.
Q. When you had that meeting with them, was it Papco people there present ?
A. Papco and Sepco Superintendents were there.”

An analysis of Kell’s and Turchi’s testimony shows that the testimony of both would have been admissible in the case in chief, insofar as it was admissible at all; that it was cumulative of testimony previously introduced and that its effect was to bolster and fortify other evidence in the record. Additionally, Kell’s testimony tended to discredit Aulds as a witness while Turchi’s testimony that Aulds attended a safety meeting tended to rebut, by explanation rather then contradiction, the implication of Kell’s statement that he never saw Aulds at a safety meeting. Turchi’s testimony shows Aulds attended a safety meeting for Papco and Sepco Superintendents when the toe board danger and warning was under discussion.

Papco arraigns the trial court’s action associated with reopening the case as reversible error on the ground that, after both parties had closed and rested in the presentation of testimony, the trial court allowed Eaton to reopen the case and present the testimony of George Kell, a witness who lived within one hundred miles of the courthouse etc. but:

(1) refused to permit Papco to introduce Turchi’s testimony in rebuttal thereof;
(2) over Papco’s objection that Aulds, a witness vital to rebuttal of Kell’s testimony, had already returned to his home in Oregon;
(3) refused to allow Papco to reopen and produce the testimony of Turchi, who lived within one hundred miles of the courthouse and had been available to Papco throughout the trial.

Though each particular ruling of the trial court is the subject of a separate point of error the disposition of these issues have a nexus and should not be considered in isolation from each other.

When the case was reopened, evenhanded procedure, “what’s sauce for the goose is sauce for the gander”, would suggest that the trial judge delay proceedings a reasonable time to allow Papco to present Turchi as a witness. But the question is too complex to be settled by a simplistic folk maxim of fair play. A trial judge is afforded a wide discretion in the admission of additional evidence “where it clearly appears to be necessary to the due administration of justice”. Tex.R.Civ.P. 270. No Texas case has been found that is precisely in point on the question here. In The Balcones Corporation v. Sutherland, 318 S.W.2d 691 (Tex.Civ.App. San Antonio 1958, writ ref’d n. r. e.), the trial court permitted a plaintiff to reopen and introduce evidence. The appellate court found no error and justified its decision in part upon the circumstance that the defendant was not deprived of the right to offer rebuttal evidence. In discussing the issue the court said “this was a matter within the discretion of the trial court, and unless it be demonstrated that the trial court abused its discretion, such action is not reversible error.

“In this case it was not shown that the appellant (defendant) was harmed in any respect by the trial court’s action, nor was it shown that it was deprived of the right to offer any rebuttal evidence that it might have had in reply thereto” (Emphasis Added). See also Union Central Life Ins. Co., v. Boulware, 238 S.W.2d 722 (Tex.Civ.App. Beaumont 1951, no writ). Cases from other jurisdictions support the proposition that when a court reopens a case for one party the opposite party should not be deprived of an opportunity to offer rebuttal testimony in reply thereto and condemns refusal in such instances as reversible error. See: Daniel v. Tower Trucking Co., Inc., 205 S.C. 333, 32 S.E.2d 5 (1944); Pavlis v. Atlas-Imperial Diesel Engine Co., 121 Fla. 185, 163 So. 515 (1935); Davis v. Arkansas Best Freight System, Inc., 393 S.W.2d 237 (Sup.Ct. Arkansas 1965); 88 C.J.S. Trial, §§ 101, 103, 104, 110 and 111.

The question of whether or not to permit Turchi to testify arose in the latter part of the week when extravagant use of time might disrupt the trial calendar of cases that followed. Additionally, the trial judge was immersed in the exacting task of preparing a very intricate jury charge. In this period the judge was necessarily weighing counsel’s suggestions and considering objections to the charge, while contending with the numerous distractions that normally beset a busy trial judge. In this atmosphere it was difficult to give the question of reopening calm and deliberate consideration or to foresee the ramifications and consequences of reopening the case. The authorities just noticed appear to hold that testimony rebutting that offered by the party reopening the case may be introduced as a matter of right. See also Gendke v. Travelers Insurance Company, 368 S.W.2d 3 (Tex.Civ.App. Waco 1963, no writ) and Tex.R.Civ.P. 265. In considering the feasibility of reopening a case for additional testimony the trial judge is obligated to consider the question in its entirety, that is, the rights of both parties when the case is reopened. Unless the case may be reopened and the right of each party to introduce evidence preserved, the motion to reopen should be denied. A trial judge is not vested with discretion to harmfully deprive a litigant of a matured right to produce rebuttal testimony.

The trial court was aware that through no fault of Papco, Aulds was not available as a witness and the record contains no suggestion that at the time the case was reopened Papco might be able to obtain testimony from any source tending to rebut evidence Eaton might produce in the reopened case. It was obvious that reopening would to some extent, favor Eaton unless Papco was able in short order to find a source, other than Aulds, of rebuttal evidence. Reopening, under the circumstances, did not clearly appear to be necessary in the due administration of justice.

Numerous cases, some of which were earlier set out in a footnote, establish the rule that whether or not a case will be reopened for reception of additional evidence is a question addressed largely to the discretion of the trial court. See 56 Tex.Jur.2d Trial, Sec. 118 et seq. and cases there footnoted. The rule is generally stated in the context of a record showing that only one party moved to reopen. The record here presents a distinctly different situation. Here both parties moved to reopen but only one party was allowed to do so. Eaton was permitted to reopen and adduce cumulative testimony but at the same time Papco was denied permission to reopen or to introduce evidence of the same nature. When the case was reopened Eaton presented testimony that tended to bolster and fortify witnesses that testified in the case in chief. Such testimony tended to exclude the probability that Aulds attended safety meetings or that he could have received a toe board warning from a Papco supervisor at a safety meeting. Turchi’s testimony, had the case been reopened to receive it, would have corroborated and strengthened Auld’s testimony that Papco supervisors had given him the toe board danger warning. Reopening to permit one party to offer cumulative testimony and at the same time refusing to reopen to permit the opposite party to introduce similar evidence is inconsistent and irreconcilable with Rule 270.

The skillful advocacy of the Eaton’s counsel carefully exploited the testimonial record as it was allowed to be made. In jury argument Eaton’s counsel asserted:

“I say Issue No. 5 on whether or not Papco had given adequate warning to Sepco supervisor Aulds that they were given to the person using the toe board as a handhold in descending the scaffold falls for want of meeting the burden of proof for this reason: Warren Aulds stands before the jury as a thoroughly impeached witness. He has told you from that witness stand that he went and told the general foreman not to use those toe boards as handholds. The general foreman has sat in here and looked you in the eye and he said Warren Aulds never told me any such thing. No . The warning, if given, was given to Aulds, where Ladies and Gentlemen . . . and it was given to Aulds by the man who was drawing his paycheck from, the Defendant in this lawsuit. Now, why haven’t they brought that man in here to look you in the eye and tell you that ‘I gave him that warning’. We say it fails for that reason; and the same holds true for each of No. 6 . . . 7 is essentially the same issue.” (Emphasis Supplied)

Turchi was the only witness shown by the record to fit the description “the man who was drawing his paycheck from the Defendant” and the argument criticized Pap-co for not producing “that man” as a witness. Turchi’s testimony, if admitted, would have removed a basis for this rather devastating argument as it tended to show where and who gave Aulds the danger warning, if it was given.

The record shows a strenuous contest in which the jury was required to answer critical issues on the basis óf evidence. Deprivation of an opportunity to strengthen its own evidence or rebut and explain that produced by Eaton, under the circumstances shown, could only be harmful to Papco. In the respect noted, the trial court exceeded the freedom of action reasonably allowable to a court in the conduct of a case, and tilted the trial in favor of Eaton. Papco’s thirtieth, thirty-first and thirty-second points of error are sustained. The trial court’s action amounted to such a denial of the rights of Papco as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

The case must be reversed and remanded for a new trial and it is so ordered. All points of error not expressly sustained have been considered and a majority of the court, but not the same majority in every instance, overrules all points of error that would require a disposition of the appeal different from that here ordered, as well as, all points upon excessiveness of the judgment and the insufficiency or great weight and preponderance of the evidence.

CORNELIUS, J., concurs.

RAY, J., dissents.

RAY, Justice

(dissenting).

I dissent. The majority opinion ignores the pleading and jury finding that Jimmy Eaton was injured by reason of being furnished a defective chattel, as distinguished from a defect on premises controlled by a landowner. The opinion then proceeds to hold that appellant Papco had a “matured right” to have the case reopened so that it could submit a rebuttal witness simply by reason of the fact that the trial court had permitted appellee Eaton to reopen the case and produce a rebuttal witness. ■ The subject of the sur-rebuttal testimony of Turchi had to do with whether or not the superintendent of Eaton’s employer was warned of the danger arising from the use of a scaffold furnished by Papco. I believe that the jury findings were sufficient to sustain the judgment of the trial court without respect to any finding on an issue of warning, and further, that no showing was made that the trial court abused its discretion in refusing to reopen the case for Turchi’s testimony.

In the petition on which the case was tried, Jimmy Eaton alleged that the scaffold from which he fell when injured was erected by Papco, Inc., to quote: “. for the express purpose of providing a place for the plaintiff to perform his labor.” Additionally, that “. . . the defendant, in the customary course of its business, furnished a scaffold to the plaintiff for the purpose of providing the plaintiff with a place to perform his labor.” There were further allegations that the scaffold was in a defective condition, “. . . in that the toe board was not properly and securely fastened to the scaffold, . . .” and that this created an unreasonable risk of harm to users of the scaffold, such as Jimmy Eaton.

There were alternative allegations that Papco undertook to furnish Eaton a scaffold for his use in performing his labor, thereby impliedly warranting that the same was reasonably fit for its intended use; that it was so defective as to be unreasonably dangerous “ . . .by reason of the toe board not being properly and securely fastened to the scaffold, . . and that this was a producing cause of the injuries of Jimmy Eaton.

In response to this pleading and the abundance of testimony, the jury made the following summarized findings: Papco employees created a dangerous condition by securing the toe board in question to the scaffold by using only two nails toed into the platform plank (Issue I) ; that the employees of Papco knew that or should have known of the existence of the dangerous condition just inquired about (Issue la); that Papco failed to exercise ordinary care to warn Jimmy Eaton of the existence of the dangerous condition inquired about (Issue lb), which was a proximate cause of the injuries sustained by Eaton; and, finally, that the toe board would have been adequately secured to use as a handhold in climbing down the scaffold had Papco employees secured it with two nails in each end in addition to two nails toed into the platform plank (Issue III).

The testimony convincingly showed that Jimmy Eaton’s employer, SEPCO, and its employees had nothing to do with the erection of the scaffold, which was built and furnished by Papco as being ready for use. All of the witnesses who testified as to the manner of securing the toe board that gave away with Jimmy Eaton, with the exception of SEPCO’S Superintendent, Warren Atilds, stated there were only two diagonally driven toe nails holding the board, and there were no nails driven horizontally at the end to secure the ends to the leading perpendicular boards. On cross-examination SEPCO’S Superintendent Aulds testified:

“Q. The truth of the matter is that it (the toe board) didn’t have but two nails, driven in at an angle, if it didn’t meet your standard ?
A. It wouldn’t meet my standard, no, sir.”

The majority opinion ignores the pleading, evidence and jury findings just summarized, and concludes that whether Papco was an occupier of land or the supplier of a chattel, its liability for injury to Eaton is that of an occupier of land to a business invitee. I do not believe this holding properly disposes of the case, or can serve as a basis for reversal.

The majority opinion concedes that under Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967), the occupier of land is relieved of all harm resulting from dangerous conditions on the premises that are not open and obvious by warning of their existence. I do not believe the facts and jury findings of the present case bring it within the principles announced in Delhi-Taylor. In the first place, we are not dealing with a relationship between the occupier of land and an invitee, but rather with that existing between the manufacturer or supplier of a scaffold (chattel) and one using the scaffold for the purpose for which it was supplied. The duty of the supplier in this instance is to furnish a scaffold reasonably safe for its intended use, free from defects known to it or discoverable by the use of ordinary care. There is an additional duty to correct such defects upon discovery or warn the intended user of them.

In Roosth & Genecov Production Co. Inc. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953) our Supreme Court considered whether there was a duty of inspection to forestall personal injury on the part of one who supplies chattels to another. In overruling the earlier case of Southern Oil Co. v. Church, 32 Tex.Civ.App. 325, 74 S.W.2d 797 (1903), 32 Tex.Civ.App. 325, 75 S.W.2d 817 (1903) the Supreme Court held the duty to exist, and relied on the Restatement of Torts, Sections 392-393. In the present text of the Restatement, the comment under Section 392 states that liability thereunder is determined by Sections 388—390. Section 389 is as follows:

“CHATTEL UNLIKELY TO BE MADE SAFE FOR USE.
One who supplies directly or through a third person a chattel for another’s use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.”

The central question in Roosth & Genecov Production Co., Inc. v. White, supra, was whether there was a duty of inspection of a chattel. In holding that there was, the decision of necessity held there was a kindred duty of manufacturing or constructing the chattel so that it would not be unreasonably dangerous for its intended use. Papco’s role in constructing the scaffold more closely resembles that of a manufacturer than that of the occupier of land. In the case of International Derrick and Equipment Company v. Croix, 241 F.2d 216 (Fifth Circuit 1957) the court cited Roosth & Genecov Production Co., Inc. v. White, supra, as supporting this quotation from the opinion:

“ ‘A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.’ Restatement, Torts, Section 395.”

In Delhi-Taylor, supra, the danger involved existed by reason of a fixed condition on the premises, namely, a system of buried gas lines, a plat of which was furnished before work began. However true it may be that in some instances the relationship between the supplier of a chattel and one injured from its use may be “likened to that of an occupier of land,” the present case bears no resemblance whatsoever to that relationship. To the contrary, we deal here with a situation where, at most, Papco negligently caused a change of condition of the premises to the injury of Eaton after his entry. Even had Eaton been a licensee, recovery would have been allowed for this negligence irrespective of any issue of warning. Texas-Louisiana Paper Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936); Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App. Houston 1959); remanded for proper application of the law as to the sufficiency of evidence; 160 Tex. 23, 325 S.W.2d 126 (1959), and affirmed upon remand, 326 S.W.2d 915 (Tex.Civ.App. Houston 1959); Houston Belt & Terminal Ry. Co. v. O’Leary, 136 S.W. 601, 604-605 (Tex.Civ.App.1911, writ ref’d); also see 40 Tex.Jur.2d, Negligence, Section 68, page 553.

Papco relies upon a generalized warning to the superintendent of Eaton’s employer. It is undisputed in the testimony that Papco made no effort to warn Eaton or his employer of the dangerous condition of the scaffold arising from Papco’s negligence in failing to secure the toe board with six nails, and employing only two nails for that purpose. The jury found this to have been the defect that made the scaffold dangerous, and that it would have been adequately secured, had it been fastened with six nails, as claimed by Papco. In this situation the question of whether or not Aulds was warned as he testified, became wholly immaterial, and the case should not have been reversed by reason of a supposed error of the trial court in ruling on the evidence on this issue of warning. See Kanawha & Michigan Railway Company v. Kerse, 239 U.S. 576, 582, 36 S.Ct. 174, 60 L.Ed. 448, 451; Barmore v. Safety Casualty Company, 363 S.W.2d 355 (Tex.Civ.App. Beaumont 1962, writ ref’d n. r. e.); and 4 Tex.Jur.2d, Part 2, Appeal and Error—Civil Cases, Section 854, page 421. Even should it be considered that Aulds truthfully testified as to the warning given him and that given by him to the employees under him, yet the jury findings identified an entirely distinct danger from that which was the subject of this warning. The situation more nearly approaches that found in Guidry v. Neches Butane Products Company, 476 S.W.2d 666 (Tex.1972) in which the Supreme Court held that construction plans of the premises furnished the employer, and excavations made by the employer were insufficient to constitute warning of a soft spot in the ground surface some four to six feet away from the excavations.

Apart from the foregoing considerations, the trial court did not abuse its discretion in refusing to permit Papco to reopen the case and offer the testimony of the witness Tur chi.

What is required to constitute an abuse of discretion was set out in Grayson County v. Harrell, 202 S.W. 160, 163 (Tex.Civ.App. Amarillo 1918, writ ref’d) as follows:

“. . . but it has been held that ‘the abuse of discretion, to justify interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.’ Citizens’ Street Ry. Co. v. Heath, 29 Ind.App. 395, 62 N.E. 107; Anderson’s Law Dictionary.”

The concept quoted was approved by our Supreme Court in considering whether a trial court abused its discretion in refusing a defendant’s request for permission to withdraw answers filed prior to the filing of a plea of abatement in J. N. McCammon Inc. v. Stephens County, 127 Tex. 49, 89 S.W.2d 984, 986 (1936, opinion adopted). Furthermore, the same rule was specifically applied to measure the action of a trial court in refusing to reopen a case just before the charge was to be submitted to the jury for the purpose of the reading of a deposition already on file, in Safety Cas. Co. v. Malvoux, 204 S.W.2d 862, 865 (Tex.Civ.App. Beaumont 1947, writ ref’d n. r. e).

The record in this case will not sustain a finding that the trial court was prompted by “perversity of will, passion, partiality or moral delinquency” in refusing to permit Papco to reopen for further rebuttal testimony.

The background for the action of the trial court is not sufficiently set out in the majority opinion. In the presentation of Papco’s case in chief, Warren Aulds testified on cross-examination that he told his general foreman, including foreman George Kell, never to use the toe boards on the scaffold as a handhold. Rebuttal witnesses were offered by Eaton, and the testimony closed on the afternoon of October 3, 1973. The rest of the day and the morning of October 4, the court and counsel were engaged in the preparation of the charge. At 10:00 A.M. on the morning of October 4, counsel for Eaton requested the court in the presence of counsel for Papco to permit reopening of the case in order to offer George Kell as a rebuttal witness. Permission was granted with the only objection by Papco being that its witness, Warren Aulds, had returned to Oregon. At 1:00 P.M., just prior to the reading of the charge to the jury, Kell appeared and disputed the testimony of Aulds concerning the warning. It developed that Kell had, after Eaton’s fall, been requested by Pap-co’s counsel to furnish safety records to him, which he did. Kell was on the stand until 2 P.M. Upon the completion of his testimony the case was ready to go to the jury. A recess was procured by Papco, following which its counsel requested the court for a thirty minute delay in order to. produce James Turchi as a sur-rebuttal witness. The request was refused.

The proffered testimony of James Tur-chi appears in the bill of exception, and none of it was in rebuttal to any of the testimony of George Kell. It may be true, as stated in the majority opinion, that the testimony of Turchi may have been admissible in the case in chief, but it certainly could not be used to rebut Kell’s specific testimony that Aulds never warned him by showing transactions between the witness Turchi and persons other than Kell.

The bill of exception shows that James Turchi was a safety man for Papco, and had been contacted by counsel for Papco several months before the lawsuit and had cooperated with him in preparation of the defense. In these circumstances, no excuse whatever was presented to the trial court for Papco’s failure to call Turchi as a witness in the presentation of its case in chief. Also, Papco having knowledge of what George Kell knew about the case, and particularly safety meetings and warnings by Aulds, the trial court could have reasonably concluded that it was incumbent upon Papco to make arrangements for the attendance of Turchi as a witness as soon as it learned of the intention of Eaton to call Kell as a witness. Had this been done, there would have been no occasion to request a delay of thirty minutes to produce the testimony.

The case should not be reversed. The trial court did not act through “perversity of will, passion, partiality or moral delinquency” in refusing Papco the right to reopen, nor would the proffered testimony of Turchi have been admissible on rebuttal had the right been granted. Furthermore, the appellant has wholly failed to meet its burden of showing that the action of the trial court in disallowing the proffered witness, Turchi, was “ . . . such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Tex.R.Civ.P., Rule 434. A reversal of this case under the circumstances presented, is not warranted. The case took a long time to try, and all of the evidence related to the material issues in the case was presented by competent counsel for each of the parties. Reversal is not justified on the grounds set out in the majority opinion. I would affirm the judgment of the trial court.

       Texas Courts have frequently stated that such discretion should be liberally exercised as it is in the interest of justice to permit both sides to fully develop a case. See: Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App. El Paso 1969, no writ); McRoy v. Riverlake Country Club, 426 S.W.2d 299 (Tex.Civ.App. Dallas 1968, writ ref’d n. r. e.); Lackey v. Perry, 366 S.W.2d 91 (Tex.Civ.App. San Antonio 1963, no writ); Hill v. Melton, 311 S.W.2d 496 (Tex.Civ.App. Dallas 1958, writ dism’d); State v. Parkey, 295 S.W.2d 457 (Tex.Civ.App. Waco 1956, writ ref’d, n. r. e.); Stroud v. Temple Lumber Co., 284 S.W.2d 909 (Tex.Civ.App. Beaumont 1955, writ ref’d, n. r. e.).


author: JAMES, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. James Earl WILLIAMS et al., Appellees.
    No. 5428.
    Court of Civil Appeals of Texas, Waco.
    April 17, 1975.
    Rehearing Denied May 8, 1975.

      Grant Liser, Fort Worth, for appellant.
    Dushman, Greenspan, Kensel & Friedman, Fort Worth (Lowell E. Dushman— Jack Friedman, Fort Worth), for appel-lees.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case involving death benefits. Plaintiff-Appellant Texas Employers’ Insurance Association brought this suit in the nature of an .interpleader action in the District Court of Johnson County, Texas, against James Earl Williams, (a minor), Freeman Brown, L. E. Spellman, and Lowell E. Dushman, (attorney).

The death benefits grew out of the death of Mrs. Doris Ann Brown, a workman who died on or about July 10, 1973, from injuries growing out of her employment with Gearhart-Owen Industries, Inc. Defendant-Appellee James Earl Williams was the minor son of the deceased, about ten years of age.' Defendant Freeman Brown was the lawful husband of the deceased. Defendant L. E. Spellman’s connection with the deceased is not shown by the record. Defendant Lowell E. Dushman was the attorney representing the minor James Earl Williams.

The minor acting through his paternal grandmother, Mrs. Odessa Williams, as next friend, as well as Brown and Spell-man each filed their respective notices of injury and claims for compensation with the Industrial Accident Board of the State of Texas, against Plaintiff-Appellant as the workmen’s compensation carrier of the deceased’s employer.

On March 6, 1974, the Board made its final decision and award, wherein the minor James Earl Williams was allowed maximum death benefits, same being $49.00 per week for 360 weeks, less $500.00 funeral expenses previously paid by Plaintiff-Appellant. The claims of Brown and Spellman were denied. A portion of the minor’s award was allowed to Mr. Dush-man as the minor’s attorney.

While the claims were pending before the Board, Mrs. Odessa Williams, the paternal grandmother of the minor, was duly appointed and qualified as guardian of his person and estate. The award to the minor was ordered by the Board to be paid to said guardian.

Plaintiff-Appellant carrier brought this suit to set aside the Board’s award under the provisions of Article 8307, Section 5, Vernon’s Ann.Texas Revised Civil Statutes, making as Defendants the minor James Earl Williams, Brown, Spellman, and Attorney Dushman. In effect, the Plaintiff-Appellant carrier admitted that it owed maximum death benefits, tendered the necessary funds into court, and sought a judgment authorizing payment to the proper party or parties in such amount or amounts as the court deemed proper.

The guardian was not named as a party defendant, but on the other hand the minor himself was named as a party defendant, and was personally served with citation herein.

Thereafter the minor, James Earl Williams, acting through his attorney, filed a “Plea in Bar,” asserting that Plaintiff-Appellant failed to properly perfect its appeal from the Board’s award by suing the minor instead of the guardian, and by so doing the court was deprived of jurisdiction over the cause insofar as the minor is concerned. Subject to the plea in bar the minor filed his answer, after which followed a cross-action filed by the guardian in behalf of the minor against the Plaintiff-Appellant carrier.

Acting upon the “Plea in Bar,” the trial court in a single order sustained the plea to the jurisdiction, severed the cause of action against the minor from the rest of the suit, and dismissed the cause of action against the minor for lack of jurisdiction.

Plaintiff-Appellant carrier appeals on one point of error, asserting the trial court erred in sustaining the plea to the jurisdiction. We sustain this point of error, and reverse the cause as more particularly hereinafter provided.

When a minor is made a party defendant in a suit and has no guardian within this State, the court is required to appoint a guardian ad litem to represent and defend the minor in such suit. Rule 173, Texas Rules of Civil Procedure. However, where the minor defendant has a lawful guardian of his estate, it is the duty of the guardian to defend the minor in such suit. Section 230(b), Probate Code of the State of Texas, V.A.T.S.

The law is well settled in Texas that a judgment procured against a minor who has no legal guardian and for whom the court has not appointed a guardian ad litem is voidable, but not void, and can be set aside by the minor or an authorized person acting in the minor’s behalf. Wallis v. Stuart (Tex.Sup.Ct.1899) 92 Tex. 568, 50 S.W. 567; Austin v. First State Bank and Trust Co. (Waco CA 1925) Civ.App., 275 S.W. 156, writ dismissed; Parr v. Parr (Amarillo CA 1947) Tex.Civ.App., 207 S.W.2d 187, error refused NRE; Jaynes v. Lee (Texarkana CA 1957) Tex.Civ.App., 306 S.W.2d 182, no writ history; Brown v. State Farm Mutual Automobile Ins. Co. (Fort Worth CA 1969) Tex.Civ.App., 449 S.W.2d 93, no writ history; 30 Tex.Jur.2d, “Infants,” par. 67, p. 719.

In the case at bar, the minor defendant had a lawful guardian, and such guardian in fact appeared and filed a cross-action in behalf of the minor subject to the minor’s plea to the jurisdiction. Therefore, in the light of the foregoing rule (based upon the authorities cited here-inabove), as applied to the case at bar, the trial court had jurisdiction over the minor defendant.

Accordingly, we hold the trial court erred in severing the cause of action against the minor James Earl Williams from the remainder of the suit, and in dismissing the cause of action against the minor. The order of severance and dismissal is hereby set aside, and the cause is reversed and remanded with instructions that the cause be reinstated by the trial court for trial on the merits.

Reversed and remanded.