author: DUNCAN, Judge. GALBREATH, Judge,

text:
    Jimmy A. RAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 19, 1977.
    Certiorari Denied by Supreme Court March 20, 1978.

      James L. Weatherly, Jr., Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Kim A. Tollison, Asst. Dist. Atty. Gen., Knoxville, for appellee.
   DUNCAN, Judge.

OPINION

At a bench trial in the Knox County Criminal Court, the defendant, Jimmy A. Ray, was found guilty of reckless driving. The defendant went to trial on a warrant which charged him with operating a motor vehicle while under the influence of an intoxicant (D.U.I.). He was acquitted of this offense, but the court allowed the warrant to be amended to charge the offense of reckless driving. The defendant argues that the court erred in allowing this amendment to the warrant. We agree.

The State argues that the reckless driving conviction should be allowed to stand, insisting that reckless driving is a lesser included offense of D.U.I. We are unable to accept the State’s proposition on this point.

The elements of D.U.I. are: (1) driving or being in physical control of a motor vehicle, (2) upon a public thoroughfare, (3) while under the influence of an intoxicant or narcotic drug. See T.C.A. § 59-1031.

The elements of reckless driving are: (1) driving a vehicle, (2) in willful or wanton disregard for the safety of persons or property. See T.C.A. § 59-858(a). In Burgess v. State, 212 Tenn. 315, 369 S.W.2d 731 (1963), the court said:

Since the passage of the 1955 Act, willful or wanton disregard for the safety of persons or property is made the essential element of the offense of reckless driving. Willful or wanton disregard for the safety of persons or property is more than merely driving at a speed or in a manner so as to endanger or be likely to endanger the life, limb or property of any person. 212 Tenn. at 318, 369 S.W.2d at 732.

In Wright v. State, 549 S.W.2d 682 (Tenn.1977), our Supreme Court considered two tests for determining whether an offense is a lesser included offense of another.

The court recognized that one valid test was:

. the lesser included offense must be such that it is impossible to commit the greater without first having committed the lesser. 549 S.W.2d at 685.

The court further suggested that a better test was the following:

The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser. 549 S.W.2d at 685-86.

The reckless driving element of “willful or wanton disregard for the safety of persons or property” is not a necessary or required element of D.U.I., and there is no requirement that the State must- prove the elements of reckless driving to sustain a conviction for D.U.I.

Under the statute prohibiting the driving or operating of a motor vehicle while under the influence of an intoxicant, it is not even necessary to show that the vehicle was in motion or that the engine was running at the time. Bradam v. State, 191 Tenn. 626, 235 S.W.2d 801 (1950). Obviously, the same thing cannot be said about the offense of reckless driving.

The only logical conclusion that can be drawn from Usary v. State, 172 Tenn. 305, 112 S.W.2d 7 (1937) is that D.U.I. does not include the offense of reckless driving. That case involved a prosecution on a two-count indictment, the first count charging D.U.I., and the second count charging reckless driving. The jury acquitted the defendant on the D.U.I. count, disagreed on the reckless driving count, and a mistrial on that count was declared. If reckless driving had been a lesser included offense of D.U.I., then an acquittal of Usary of D.U.I. would necessarily have carried with it an acquittal of reckless driving; however, the court obviously recognized that reckless driving was not a lesser included offense of D.U.I. and that the two offenses were separate and distinct, because the court held that a subsequent trial on the reckless driving count was proper and was not subject to a plea of former jeopardy.

Therefore, considering the difference in the elements of reckless driving and D.U.I., and applying these elements to the tests enunciated in Wright v. State, supra, we hold that reckless driving is not a lesser included offense of D.U.I. Thus, it necessarily follows that the court erred in allowing the warrant to be amended to charge reckless driving. This was an additional and separate offense and, in the absence of the defendant’s consent, such amendment was not authorized by law. Murff v. State, 221 Tenn. 111, 425 S.W.2d 286 (1967).

The defendant’s innocuous complaints about not being afforded a court reporter at the expense of the State, and about not being provided with a breath sample for testing purposes are of no significance. This record is before us on an adequate narrative bill of exceptions, and the defendant was acquitted of the charge of D.U.I. We overrule those complaints. However, for the reasons stated, we sustain the defendant’s complaint that he cannot be found guilty of reckless driving in this D.U.I. prosecution.

We reverse the defendant’s conviction and the case is dismissed.

BYERS, J., concurs.

GALBREATH, Judge,

dissenting.

I cannot agree with the majority that the conviction in this case should be reversed.

The appellant was charged by warrant with operating a motor vehicle upon the public highway of Knox County while under the influence of an intoxicant. Following appeal from conviction for reckless driving in General Sessions Court and a trial de novo, the defendant was again found guilty of reckless driving; the trial judge dismissing the D.U.I. charge and allowing a motion to amend the warrant to charge that offense. This action is assigned as error.

An amendment of a warrant charging a misdemeanor may, under limited circumstances, be amended so long as the amendment does not change the nature of the offense or add a new offense. See Murff v. State, 221 Tenn. Ill, 425 S.W.2d 286 (1967).

A warrant serves the same purpose or office, if the defendant elects to waive grand jury investigation of the charge(s) against him, as would an indictment or presentment. It should set out with reasonable clarity the offense charged either by name or so that it can be clearly inferred. T.C.A. § 40-708. It is axiomatic that basic due process requires one to be put on notice of just what he is accused of in order that he may defend himself. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). When the defendant was made aware that he was accused of operating, upon a public thoroughfare, a motor vehicle while under the influence of an intoxicant at a certain time and place, he was, in my view, fully apprised that he was alleged to have been operating the vehicle in a reckless manner.

I would hold as a matter of law and fact that any person who undertakes to drive a motor vehicle while drunk is acting in a wanton and grossly negligent manner amounting to reckless driving. It does not matter that one who undertakes to operate a vehicle while under the influence of an intoxicant is not involved in an accident, or even that he appears to operate the vehicle in a careful and prudent fashion. The mere fact that he is drunk renders him unfit to drive or to be in control of a motor vehicle. “Driving while drunk is an act malum in se, highly criminal, fraught with danger and evinces such entire want of care and indifference to results as to constitute wanton negligence.” Rice Bros. Auto Co. v. Ely, 27 Tenn.App. 81, 178 S.W.2d 88 (1943).

I would accordingly hold that every charge of operating a motor vehicle while intoxicated embodies within it the offense of reckless driving. I submit that while one may be guilty of reckless driving while sober, one cannot drive a motor vehicle while drunk without being reckless.

I do not find it was necessary for the trial judge to amend the warrant since reckless driving was proved in the trial for D.U.I. I would affirm the conviction for the lesser included offense or reckless driving.

I do not find the analogy the majority makes with the facts in this case and those in Wright v. State, 549 S.W.2d 682 (Tenn.1977), insupportive of the result I would reach. In Wright the Supreme Court agreed with the position I urged in this Court in dissent that is essentially the same as I now again set forth. Until Wright our Court had insisted that shoplifting was a separate and distinct offense from that of larceny. I had insisted, alone, that it was a lesser included offense. This was the same position I had urged upon a majority of this Court in respect to the joy riding statute, i. e., that a limited taking of an automobile could factually be a lesser included offense of larceny. See Spencer v. State, 501 S.W.2d 799 (Tenn.1973).

Now it is recognized beyond cavil (because the Supreme Court has so held) that one may be charged with stealing an automobile and, if the facts support such a finding, be found guilty of joy riding only. Or, of taking merchandise from a store and be guilty of either larceny or shoplifting, depending again upon the facts.

To hold that one cannot be guilty of reckless driving who has been charged with D.U.I. only may, if binding on the trial courts, create a number of serious problems. Two immediately occur to me.

It is sometime quite difficult to prove that one was under the influence of an intoxicant. Scientific tests are not, as in this case, always available and often witnesses are mistaken as to the conclusions made. For example, a motorist might, in a grossly negligent manner, drive an automobile through a school zone and injure children in a crosswalk. Due to a head injury and a strong odor of alcohol from a broken bottle, the driver might give every appearance of being drunk and be arrested for D.U.I. even though at trial he proves himself to have been a complete abstainer from alcoholic beverages. He has still committed a serious offense in operating his automobile in a reckless manner. Under the majority holding he could not be punished for this violation.

In all of the jurisdictions of the State with which I am familiar with the practice of criminal law, it is the frequent disposition of a D.U.I. case for the prosecution to announce that, subject to the approval of the court, the charge is being reduced to reckless driving on a plea of guilty. This method of disposing of these cases in which, for lack of adequate proof or in furtherance of some diversionary program for traffic offenders, the State and the lower courts deem it advisable to recognize reckless driving as a lesser included offense of D.U.I. will, it seems to me, be made improper by the majority’s holding.

In summary, we deal here, as we did in Wright and Spencer, with reason and logic based on fact rather than legal principal as such. Just as factually it is now recognized where there is probable cause to believe one has stolen an automobile, he may, under the facts, only be guilty of joy riding, or that one believed to have committed larceny in the taking of merchandise from a store may only be guilty of shoplifting. Factually, one who gives an appearance of having operated a motor vehicle while drunk may be found instead to have been guilty of reckless driving.

It is facts, not just law, that must guide. Thus, one accused of reckless driving by operating a motor vehicle at a speed of more than one hundred miles per hour might be acquitted of that charge but found guilty of violating T.C.A. § 59-852, establishing the maximum speed limit in the State, because the fact of speeding was included in the purported reckless driving. The law directs: “The defendant may also be found guilty of any offense the commission of which is necessarily included in that with which he is charged.” T.C.A. § 40-2520.

Wright and Spencer have made clear that the word “necessarily” does not mean that it is indispensible that the lesser offense must always be included in the commission of a greater offense since it is obvious that one can commit larceny without joy riding or taking merchandise from a store. There are many ways to commit larceny. Taking an automobile from its parking place or a chain saw from a retail store store may, or may not, be two.

There are many ways to commit the offense of reckless driving. Driving while drunk is one. See Rice Bros. Auto Co. v. Ely, supra. Although there was probable cause to believe the defendant in this case had, while under the influence of an intoxicant, engaged in the reckless conduct charged, the facts did not support this.

However, in this case the defendant, by his own admission, drove his automobile at an excessive rate of speed under slick and hazardous road conditions resulting in an accident. I cannot say that the trier of fact was not justified in finding that this amounted to reckless driving.

For the reasons set out above, I respectfully dissent.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    Geraldine STEVENS, Individually and as Administratrix of the Estate of Louis Morris Stevens, Deceased, Petitioner, v. The TRAVELERS INSURANCE COMPANY, Respondent.
    No. B-7006.
    Supreme Court of Texas.
    Feb. 15, 1978.
    Rehearing Denied March 8, 1978.

      0. Joseph Damiani, Houston, J. Michael Cunningham, Midland, for petitioner.
    Vinson & Elkins, Robert A. Rowland, III, Houston, for respondent.
   STEAKLEY, Justice.

Louis Morris Stevens was killed on October 21, 1973, when the automobile he was driving crashed into a bridge abutment. He was insured in event of accidental death by the Travelers Insurance Company, Respondent here, through membership in the Exxon Travel Club, Inc. A beneficiary was not named in the policy. Our Petitioner, Geraldine Stevens, Individually and as Ad-ministratrix of the Estate of Louis Morris Stevens, sued to recover the proceeds of the policy. Travelers answered by denying that the death of Stevens was accidental, and alleged that he committed suicide.

A mistrial was declared in the first trial after the jury was unable to reach a verdict., ■ In the second trial the jury, after deliberating four hours, sent a note to the Court as follows:

“Your Honor: We are deadlocked at 8 to 4 and have been for well over an hour. An individual poll of the jurors indicates there is no likelihood of a change.
May we have your instructions?”.

There followed an inconclusive conference of the court with counsel for both parties in chambers. The court then orally gave the jury a supplemental charge, his recollection of which, as modified at the instance of counsel for Travelers, was dictated into the record nunc pro tunc, as follows:

“Ladies and Gentlemen of the jury, I have your note that for the past hour you have been deadlocked by a vote of 8 to 4. You request further instructions. This Case has been ably tried by lawyers, experienced, of long standing, and in the interest of justice, if you could end this litigation by your verdict, you should do so.
“What is more, ending it will meet with the approval of the Court. I don’t mean to say by that that any individual person on the jury should yield his own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at the verdict which justly answers the consciences of the individuals making up the jury. A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. He should not surrender any conscientious views founded upon the evidence unless convinced by his fellow jurors of his error.
“It has cost the taxpayers of Harris County considerable expense to have this case tried before a Jury over the past week.
“I am satisfied ladies and gentlemen that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot arrive at an agreement. It will take considerably more time before anyone can satisfy me as to that. Accordingly, I return you to your deliberations.”

The jury then deliberated 20 minutes and asked to be excused for the weekend. The jury reconvened the following Monday morning and, after deliberating approximately four hours returned a verdict, concurred in by ten jurors, in which it was found that the death of Stevens was caused by accident and that it was not caused by suicide. Based thereon, the trial court entered judgment for Mrs. Stevens. Upon appeal, the Court of Civil Appeals, citing Texas Midland R.R. v. Brown, 228 S.W. 915 (Tex.Com.App.1921) and Missouri, K. & T. Ry. of Texas v. Barber, 209 S.W. 394 (Tex.Com.App.1919), ruled that the supplemental charge was coercive to the minority jurors and impermissible. Citing also Gulf, C. & S.F. Ry. Co. v. Johnson, 99 Tex. 337, 90 S.W. 164 (1905), the Court of Civil Appeals emphasized that it is improper for a court to advise the jurors on the manner in which they are to reach their verdict. The judgment of the trial court was reversed and the cause remanded for another trial. 553 S.W.2d 232. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The essential position of Mrs. Stevens is that Johnson and Brown are distinguishable because the charges there condemned were not given here. She concedes that Barber is in point in condemning an instruction on wastefulness but argues that the decision is out of harmony with the realities of today’s world and should be overruled.

The essential position of Travelers is that all instructions which urge the jury to return a verdict should be declared to be impermissible as coercive on jurors of the minority in the announced deadlock. It argues that under all such charges the minority will feel more pressure to conform to the views of the majority than the latter to the views of the former; that such charges place the sanction of the court upon the majority; and that these types of charges constitute judicial interference in the fact finding process. Travelers further contends that this particular charge conflicts with the decisions in Johnson, Brown, and Barber.

I. VERDICT-URGING INSTRUCTIONS IN GENERAL

Instructions such as that here in question have often been referred to as “dynamite” or “Allen” charges. The first reference is to the supposed effect of the charge; that is, to “blast” a jury from deadlock to verdict. The second reference is to the charge approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Allen, a criminal prosecution, the U. S. Supreme Court approved a charge which instructed the members of the minority of a deadlocked jury to reconsider their position in light of the fact that a larger number of their panel were of the opposite view. The particular charge in Allen has been the subject of much critical commentary since its approval and appears now to have been rejected by a majority of jurisdictions for use in criminal cases. See, e. g., People v. Gainer, 139 Cal.Rptr. 861, 566 P.2d 997 n. 8 (Cal.1977); Note, 50 Tulane L.Rev. 706 (1976); The Allen Charge Dilemma, 10 Am. Crim.L.Rev. 637 (1972); Note, 53 Va.L.Rev. 123 (1967); WIEHL, Instructing A Jury in Washington, 36 Wash.L.Rev. 378 (1961); Note, 25 Vand.L.Rev. 246 (1972); Note, 25 Ark.L.Rev. 542 (1972); Note, 13 W. & M.L. Rev. 672 (1972). See also, ABA Standards Relating To Trial By Jury, § 5.4 (Project on Minimum Standards for Criminal Justice, 1968).

Instructions other than the particular “Allen Charge” which, in less objectionable terms, urge juries to return verdicts have also been the subject of extensive litigation and commentary. See, e. g., cases collected in Annot. 38 A.L.R.3d 1281 (1971); Annot. 41 A.L.R.3d 845 (1972); Annot. 41 A.L.R.3d 1154 (1972). See also, Comment, INSTRUCTING DEADLOCKED JURIES: THE PRESENT STATUS OF THE ALLEN CHARGE, 3 Tex.Teeh.L.Rev. 313 (1972); Note, 9 Hous.L.Rev. 570 (1972); Note, 78 Yale L.Rev. 100 (1968). These less overtly coercive instructions are used in both criminal and civil cases and, except as to the requirement of unanimous verdicts in criminal prosecutions, are essentially similar. It appears that in civil cases a majority of jurisdictions do not prohibit such instructions as a matter of course; but rather analyze the propriety of a particular charge by its terms, and in the light of the circumstances under which it was given. See, e. g., Taylor v. Murray, 102 Ga.App. 145, 115 S.E.2d 776 (Ga.App.1960). See generally cases collected in Annot. 38 A.L.R.3d 1281, 1291-96 (1971).

At least one commentator has read our decision in Gulf, C. & S.F. Ry. Co. v. Johnson, supra, as a possible bar to all verdict-urging instructions. See Annot. 38 A.L.R.3d 1281 at 1290; Annot. 41 A.L.R.3d 845 at 854; Annot. 41 A.L.R.3d 1154 at 1164. We do not so interpret the case. Johnson involved an inquiry, made after two days of fruitless deliberation, in which the jury asked whether it was “. . . legal and right for a jury, in case they have failed to agree upon a verdict in a case, to make concessions in order to agree upon a verdict?” The trial judge, in response, instructed the jury that . . it is entirely lawful and proper to make concessions, provided, of course, your verdict, as agreed to, is based alone upon the law as given in the charge and the facts as you find them from the evidence.” This court held the instruction was impermissible. The basis for this holding was not that the charge coerced a verdict from an unwilling jury; but, rather, it was that the instruction invaded a forbidden area when it addressed the subject of concessions and compromises in the jury room. This rationale is not a blanket condemnation of verdict-urging instructions but is a condemnation of the charge as it was given. Quoting from Richardson v. Coleman, 131 Ind. 210, 29 N.E. 909 (1892), the court said:

The fundamental objection to such instructions is that the law, in our opinion, prescribes no rule for the court to lay down, except that the jury are to find in accordance with the truth as their judgments, honestly applied to the evidence, lead them to believe it to be, or, as their oath expresses it, ‘that they will a true verdict render according to the law . and the evidence.’

90 S.W. at 165.

Although there is no precedential restriction on the authority of trial judges to give properly worded verdict-urging instructions, the serious questions presented by Travelers’ argument that all such charges are inherently coercive must be considered before their continued use is sanctioned.

Any supplemental charge, such as the original Allen charge, which is addressed specifically to the minority jurors of a deadlocked panel is expressly and inherently coercive. With this conclusion Travelers would agree; but Travelers would then contend that a supplemental charge, not coercive by its terms, is made coercive by the mere fact that it is given. Travelers argues that the minority juror is already under pressure by being in the minority; and that any verdict-urging instruction places additional, and impermissible, pressure on him to alter his position for the sole purpose of reaching a verdict. This argument is unavailing. The relationship of judge to jury is a complex and contradictory one. The two entities are equal in function; that is, the former is the exclusive judge of the law, while the latter is the exclusive finder of fact. At the same time, a superior-inferior relationship exists between the two. The judge is the supervisor of judicial proceedings. See, generally, POPE, The Judge-Jury Relationship, 18 Sw. L.J. 46 (1964). This fact is well known by juries and is reinforced by the instructions given them before and after they are impaneled. Rule 226a, Tex.R.Civ.P. Our law does not contemplate that every jury will function perfectly and, to that end, broad discretion is vested in the trial judge to aid in administering and expediting the fact finding process. It is this concern for the expeditious administration of justice that must be balanced against the concern for impartiality in the fact finding process in determining whether it is proper for judges to insert themselves into that process at all.

There is admitted substance in the thesis that minority jurors more often than not are disproportionately influenced by supplemental instructions urging the jury to reach a verdict. This consideration, however, is more than counterbalanced by the fact that jurors are aware of the function of the trial judge as an administrator and the fact that the instructions given to them are based upon the experiences of the judge with other juries. We conclude, therefore, that even though there is a latent danger of coercion, supplemental, verdict-urging instructions are not, in and of themselves, erroneous, so long as the particular charge given is not otherwise objectionable.

II. THE PRESENT CHARGE

The propriety of verdict-urging instructions in Texas have heretofore been governed by the decisions in Johnson, Brown and Barber, supra. As noted above, Johnson involved a charge which told the jury that it was lawful to make concessions. As also noted, the court in Johnson struck the charge on the ground that it invaded an impermissible area. In Missouri, K. & T. Ry. of Texas v. Barber, supra, the Commission of Appeals invalidated a supplemental charge as coercive because it insisted on a verdict to avoid waste of the taxpayers’ money; because it insisted on a verdict to avoid personal inconvenience to the jurors; and because it failed to advise the jury not to reach a verdict if it was not the personal conviction of all those voting for it. Texas Midland R.R. v. Brown, supra, involved a charge given by a temporary judge called in to replace the trial judge who had become unavailable. The Commission of Appeals disapproved of the supplemental charge given by this judge because it was coercive to instruct the jury that it was his practice to keep juries together until they reached a verdict; that it would be a great disappointment to the judge who tried the case if the jury failed to agree; and that it would be a waste of the proceeding if no verdict was reached. It is apparent that the instruction here under review will not survive if these decisions, particularly Brown and Barber, are given full measure. In his instructions here, the trial court emphasized the cost to the taxpayers of the proceeding, and indicated his approval if the jury ended the litigation by reaching an agreement.

We are not content, however, to determine the question before us by a literal extension of the language in these cases. The decision in each of these cases was rested on the particular wording used in instructions given by the trial judge after the jury reported disagreement. There was no consideration of the context in which the instructions were given, or of the timing of the instructions in relation to the later verdict. We find that several Courts of Civil Appeals have considered all of the circumstances surrounding the rendition and effect of a verdict-urging instruction when passing on its validity. Western Union Telegraph Co. v. Oakley, 181 S.W. 507 (Tex.Civ.App.1916, no writ); Cornelison v. Fort Worth & R.G. Ry. Co., 403 Tex.Civ.App. 509, 103 S.W. 1186 (1907, no writ); Burgess v. Singer Mfg. Co., 30 S.W. 1110 (Tex.Civ.App.1895, no writ). See also, Youngblood v. Wilson & Cureton, 321 S.W.2d 887 (Tex.Civ.App.1959, writ ref’d n. r. e.); Hunter v. Hunter, 187 S.W. 1049 (Tex.Civ.App.1916, writ dism’d); Quigley v. Gulf, C. & S.F. Ry. Co., 142 S.W. 633 (Tex.Civ.App.1911, no writ); Texas Cent. R. Co. v. Driver, 187 S.W. 981 (Tex.Civ.App.1916, no writ). We conclude that the better rule is found in these cases. Words of instruction in one context and time frame may be coercive but in another may be no more than a permissible effort on the part of the trial judge to bring the deliberations of the jury to a conclusion in a manner fair to the litigants.

Therefore, in order to test a particular charge for coerciveness, it is necessary that the charge be first broken down into its several particulars and analyzed for possible coercive statements. A possibly coercive statement will not invalidate the charge, however, unless it retains its coercive nature when the charge is then read as a whole and all of the circumstances surrounding its rendition and effect are considered.

A.

THE CHARGE IN PARTICULARS

The charge here given can be divided into five parts, each of which must be tested individually.

1.

“This Case has been ably tried by lawyers, experienced, of long standing, and in the interest of justice, if you could end this litigation by your verdict, you should do so.”

This statement, taken alone, is innocent and not coercive. It does no more than call to mind again the oath of the jury and the purpose for which trials are held. The comment that the case had been ably tried by experienced lawyers could not affect the deliberations in one way or another, as it is but a neutral observation. The reference to a verdict in the interest of justice is likewise neutral and unobjectionable.

2.

“What is more, ending it will meet with the approval of the Court.”

Standing alone this statement is in direct conflict with the decision in Brown. An instruction that the court will be displeased with a non-productive jury is an implicit threat. As noted above, the jury cannot but be aware of the role of the trial judge and his power over them. This knowledge has been enhanced over the course of the trial and has been even further solidified by the realization that only the judge can allow them to end their deliberations and return to their normal affairs. For these reasons, the rule in Brown is well-based and this statement may be classified as possibly coercive.

3.

“I don’t mean to say by that that any individual person on the jury should yield his own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at the verdict which justly answers the consciences of the individuals making up the jury. A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. He should not surrender any conscientious views founded upon the evidence unless convinced by his fellow jurors of his error.”

It was this portion of the instruction which the Court of Civil Appeals found to be violative of the rule announced in Gulf, C. & S. F. Ry. Co. v. Johnson, supra, and followed in Reed v. Bates, 32 S.W.2d 216 (Tex.Civ.App.1930, no writ). We note first that the instruction in Reed was given prior to the retirement of the jury. We further note that in both Johnson and Reed the instructions specifically mentioned the right or duty of the jury to make concessions or reconcile differences. See also, Pecos & N. T. Ry. Co. v. Finklea, 155 S.W. 612 (Tex.Civ.App.1913, no writ); Texas Midland R. R. v. Byrd, 41 Tex.Civ.App. 164, 90 S.W. 185 (1905, no writ); and Cornelison v. Fort Worth & R. G. Ry. Co., 46 Tex.Civ.App. 509, 103 S.W. 1186 (Tex.Civ.App.1907, no writ). The charge here given does not possess this flaw and the cited cases are, therefore, in-apposite.

Moreover, this charge is not erroneous as given because by its wording it does no more than advise the jury that they are to conduct themselves in a reasonable and mature manner. The charge specifically warns against an individual juror surrendering a conscientious conviction and thereby is further insulated from the taint of coercion. Standing alone, therefore, this part of the charge is not coercive.

4.

“It has cost the taxpayers of Harris County considerable expense to have this case tried before a Jury over the past week.”

On its face, and standing alone, this statement is in direct conflict with the rulings in Barber and Brown. See also, Baldwin v. Morton, 19 S.W.2d 948 (Tex.Civ.App.1929, no writ); Sunshine Oil Corp. v. Randals, 226 S.W. 1090 (Tex.Civ.App.1921, no writ); Hunter v. Hunter, 187 S.W. 1049 (Tex.Civ.App.1916, writ dism’d); Wootan v. Partridge, 39 Tex.Civ.App. 346, 87 S.W. 356 (1905, no writ); North Dallas Circuit Ry. Co. v. McCue, 35 S.W. 1080 (Tex.Civ.App.1896, no writ). Cf. Cloudt v. Hutcherson, 175 S.W.2d 643 (Tex.Civ.App.1943, writ ref’d w. o. m.); Pecos & N. T. Ry. Co. v. Finklea, 155 S.W. 612 (Tex.Civ.App.1913, no writ). See, contra, Fleck v. Missouri, K. & T. Ry. Co., 191 S.W. 386 (Tex.Civ.App.1916, no writ); Leland v. Chamberlin, 120 S.W. 1040 (Tex.Civ.App.1909, no writ); Houston & T. C. R. R. Co. v. Darwin, 47 Tex.Civ.App. 219, 105 S.W. 825 (1907, writ ref’d). These decisions are no longer viable, however, given the instructions which are prescribed by Rule 226a. In accordance with that rule, prospective jurors are cautioned that failure to follow the instructions of the judge could result in a retrial of the case and the attendant waste of time and expense to the litigants and the county. A supplemental charge which merely reiterates this instruction is not coercive. Barber and Brown are overruled to this extent. In so doing we do not approve or sanction such a charge; rather, we hold that if it is given, it is not, without more, coercive.

5.

“I am satisfied ladies and gentlemen that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot arrive at an agreement. It will take considerably more time before anyone can satisfy me as to that. Accordingly, I return you to your deliberations.”

This statement, Travelers argues, threatened the jury with indeterminate confinement and was, therefore, coercive. A genuine threat to unreasonably detain a deliberating jury would, of course, be coercive. See, e. g., North Dallas Circuit Ry. Co. v. McCue, 35 S.W. 1080 (Tex.Civ.App.1896, no writ); Cf., Western Union Telegraph Co. v. Oakley, 181 S.W. 507 (Tex.Civ.App.1916, no writ); Hunter v. Hunter, 187 S.W. 1049 (Tex.Civ.App.1916, writ dism’d); Burgess v. Singer Mfg. Co., 30 S.W. 1110 (Tex.Civ.App.1895, no writ). Where, as here, however, the charge informs the jury only that the judge cannot, consistent with his duties, discharge them, it is not coercive. As noted above, the jury is aware of the power and function of the trial judge and this portion of the charge only reminds them of his duties and functions. Again, we do not approve this portion of the instruction as a desirable element of a supplemental charge; but hold that it is not coercive.

B.

THE CHARGE AS A WHOLE

Because we have found a portion of the charge to be possibly coercive when standing alone, it is necessary to examine the charge as a whole and the circumstances surrounding it in order to properly gauge its effect. As to the charge itself, we note that immediately after the judge erroneously indicated that he would disapprove of a failure to reach a verdict, he cautioned the jury not to forsake their personal convictions. This admonition had the effect of diluting the coercive nature of the previous statement and rendering it unobjectionable. This conclusion is buttressed by the fact that the jury did not come to an agreement until it had adjourned over the weekend and then only after deliberation the following Monday for approximately four hours. We hold that the charge as a whole did not have a coercive effect upon the jury and that the Court of Civil Appeals erred in its conclusion that the charge was coercive and changed the vote of the jurors in the minority.

III. COUNTERPOINTS

Travelers also presents ten points labeled “counterpoints” complaining of the judgment of the Court of Civil Appeals, the first five of which present legal sufficiency points; if sustained, these points would require rendition of judgment in its favor. The Court of Civil Appeals expressly ruled that the verdict of the jury was supported by sufficient evidence and Travelers does not attack this ruling by Application for Writ of Error. See Pruitt v. Republic Bankers Life Ins. Co., 491 S.W.2d 109 (Tex.1973); also, CALVERT & HATCHELL, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303 (1974).

The remaining “counterpoints” urged by Travelers complain of the failure of the Court of Civil Appeals to consider various points of error there urged. In these, Travelers asserted error of the trial court in submitting a special issue inquiring if the jury found from a preponderance of the evidence that the death of Louis Morris was caused by suicide; that the trial court erred in overruling its motion for new trial based upon the ground that the supplemental charge was given orally rather than in writing; that the trial court erred in overruling Travelers’ Motion for New Trial because it was not given an opportunity to inspect and make written objections to the supplemental charge; and that the trial court erred in overruling Travelers’ Motion for New Trial on the ground of jury misconduct during its deliberations. We have considered individually each of these “counterpoints” and find them to be without serious merit.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . Under Rule 286, Tex.R.Civ.P., the supplemental charge should have been given in writing and not orally. The rule reads:
      After having retired, the jury may receive further instructions of the court touching any matter of law, either at their request or upon the court’s own motion. For this purpose they shall appear before the judge in open court in a body, and if the instruction is being given at their request, they shall through their foreman state to the court, in writing, the particular question of law upon which they desire further instruction. The court shall give such instruction in writing, but no instruction shall be given except in conformity with the rules relating to the charge. Additional argument may be allowed in the discretion of the court.

      . The charge approved in Allen was taken verbatim from the Massachusetts decision in Commonwealth v. Tuey, 62 Mass. 1 (1851) and read as follows:
      “The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof is upon the commonwealth to establish every part of it, beyond a reasonable doubt; and if, in any part of it, you are left in doubt, the defendant is entitled to the benefit of the doubt, and must be acquitted. But, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”

      . The standard recommended by the ABA Criminal Justice Project is a well reasoned modification of the original Allen charge. That standard reads as follows;
      5.4 Length of deliberations; deadlocked jury.
      (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
      (i) that in order to return a verdict, each juror must agree thereto;
      (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
      (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
      (iv) that in the course of deliberations, a jur- or should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
      (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
      (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or .threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
      (c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

      . At the outset we note that several problems relating to verdict-urging instructions are not here presented. There is no question concerning colloquy between the judge and individual jurors. See Foreman v. Texas Employers’ Ins. Assn., 150 Tex. 468, 241 S.W.2d 977 (1951); Spring Branch Bank v. Wright, 404 S.W.2d 659 (Tex.Civ.App.1966, writ refd n. r. e.). Nor is there a question concerning the coercive effect of repeatedly returning a jury to deliberate further. See, Conrey v. McGehee, 473 S.W.2d 617 (Tex.Civ.App.1971, writ refd n. r. e.); Kimbriel Produce Co. v. Webster, 185 S.W.2d 198 (Tex. Civ.App.1944, writ refd w. o. m.); Pantazis v. Dallas Ry. & Terminal Co., 162 S.W.2d 1018 (Tex.Civ.App.1942, writ dism’d); Dallas Ry. & Terminal Co. v. Horton, 119 S.W.2d 122 (Tex.Civ.App. 1938, writ dism’d); State v. Black, 14 S.W.2d 72 (Tex.Civ.App.1929, no writ). Likewise, there is no comment by the trial judge regarding the certainty of appeal. See, Renn v. Samos, 42 Tex. 104 (1875); Sunshine Oil Corp. v. Randals, 226 S.W. 1090 (Tex.Civ.App.1921, no writ). Our decision today will not affect these decisions except as to clarify the method for their analysis.

      . Presently no provision is made in Rule 226a or its accompanying order for the inclusion of a pre-deliberation instruction of this kind. We note that in federal criminal cases it is suggested that the following instruction be included in the court’s charge:
      “It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.”
      27 F.R.D. 46, 97 (1961).
      We do not, by this opinion, alter Rule 226a or our order accompanying it; but, rather, set out the federal instruction by way of example only.

      . Our holding today serves to revitalize the instruction given in Houston & T. C. R. R. Co. v. Darwin, 105 S.W. 825 (Tex.Civ.App.1907, writ ref d). That instruction, while not a model of brevity, is set forth below for the purposes of example only:
      Gentlemen of the Jury: I judge from the expression of several of the jurors yesterday evening that some of you were getting impatient because you have not readily come to a verdict, and I want to say to you not to get discouraged at your delay in reaching a verdict, but work along just exactly like we have worked in the trial of the case. The only way the business of the court can be dispatched is by verdicts. Of course, if you should not be able to agree, the court will not keep you together any unreasonable length of time, but it is its duty to give you a fair opportunity to agree upon a verdict before discharging you, and it often takes some time for jurors to fully consider a case so as to arrive at one, but if you, gentlemen, were to get bullheaded with one another, and would not reason together in an effort to arrive at a verdict, then of course, there would be no reason in keeping you together longer. Twelve independent thinking men can only arrive at a verdict usually by discussing the subject before them openly and freely, and it takes time to do this, and by such discussions they arrive at the common ground upon which all can stand or finally disagree, as the case may be. I should dislike for any of you to believe the man who said the horse was 16 feet high, and then stick to it because he had said that first. I would not say anything to influence either to arrive at a verdict, or as to what your verdict should be; but it is sometimes the case when we find others differ from us that we begin to ask ourselves why it is. We concede that those who differ from us are just as honest and sincere and know as much as we ourselves do about the matter, and this naturally puts one to thinking why this is, and in that way sometimes we come to the conclusion that our first impressions were wrong. It is no reflection on a man that after seeing a matter one way he is enabled to see it in another. The highest courts in the country, after deciding questions sometimes find out they are wrong after further investigation, and change their opinions, and jurors are exclusive judges of the facts and should arrive at conclusions after a thorough discussion of the matter before them, and I would not have you become discouraged because you have not reached a conclusion as promptly as some of you perhaps think you should and give up. We often reason out a thing by studying over it that at first seemed impossible. I suggest to you that you go over these matters thoroughly and patiently, and do not think for a moment that the court is trying to force a verdict from you, because it is not, and it has the greatest confidence in you, but only desires to caution you against impatience or giving up. It may sometimes occur that after a matter for some time the jurors might become tired, and, if such is the case, you might take a rest, and that may enable you to get into new channels of thought and out of the old rut if you should happen to be in any particular line of thought. You may retire.

      .- Counterpoints are not proper points on appeal. An Application for Writ of Error contains Points of Error. An answer to an Application can contain Reply Points or Cross Points or both. See Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967); see also CALVERT & HATCHELL, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303 (1974).


author: POPE, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. Lula COOPER et al., Respondents.
    No. B-6735.
    Supreme Court of Texas.
    Feb. 22, 1978.
    Rehearing Denied March 22, 1978.

      Jackson, Walker, Winstead, Cantwell & Miller, John L. Lancaster, III and C. Steven Matlock, Jr., Dallas, for petitioner.
    Ernest L. Sample, Beaumont, for respondents.
   POPE, Justice.

This is a wrongful death action arising from a collision between the Cooper passenger car and a Missouri Pacific freight train. Wilfred Cooper and his wife, Evina, died as a result of the accident and Sheronell, their daughter, was injured. The plaintiffs are the parents of the two decedents and the legal representatives of the two minor children. The trial court rendered judgment in favor of the minor children on a jury verdict in the amount of $71,000, and the court of civil appeals affirmed the judgment. 547 S.lY-2d 723. Missouri Pacific urges by this appeal that there is no evidence to support the jury finding that the crossing was extra hazardous, and that the trial court erred in admitting testimony of prior accidents and also evidence that the crossing had a local reputation for being extra hazardous. We reverse the judgments of the courts below because of the improper evidence admitted upon the trial and render judgment that plaintiffs take nothing.

The Cooper family was traveling in an easterly direction along Farm Road 413 at about 5:00 A.M. on February 2, 1969. The road was lightly traveled. The family reached a point about nine miles east of Rosebud where they crossed the Brazos River. Without changing directions they drove about 800 feet farther east to a point where a single Missouri Pacific railroad track intersected the road at right angles. The Cooper vehicle ran into the side of a freight train that was crossing the road and moving to the south. The train consisted of 113 cars and a caboose and was pulled by four engines. The tracks were -the Missouri Pacific’s main line from Fort Worth to Houston. There was a light beam on the front engine which at the time of the accident was already about three fourths of a mile south of the crossing, and there was a light on the caboose. There were no other lights between the front and back of the train. The train was moving at a speed of about forty-five miles an hour.

The Cooper automobile ran into the 110th freight car, killing Evina Cooper instantly. Wilfred Cooper died a week later without ever regaining consciousness. A two-week-old infant sustained a broken arm, and a six-year-old daughter was unharmed. Both Mr. and Mrs. Cooper were thrown out of the car, which was itself totally demolished.

The weather at the time of the collision was foggy and damp. The evidence varied as to whether it was a light fog or “a lot of fog" on the morning of the accident. The rural setting of the accident was described by the witnesses as flat for at least a mile in all directions. There were no houses or lights in the vicinity and the crossing was outside of any towns. The railroad tracks were on a level with the road. One driving from the west to the east would drive over a hill about one mile west of the crossing and would have three kinds of warning signals before reaching the crossing. A large “X” with an “R” on each side was painted on the surface of the paved two-lane highway about 400 feet west of the crossing. To the right of that painting just off the shoulder of the road was the usual yellow round metal sign that also had an “X” with an “R” on either side. Near the tracks and just off the shoulder on the right side of the road there was the familiar cross buck sign with two crossing boards erected on a white pole. The word “Railroad” was written in black on one of the boards and the word “Crossing” was on the other. A similar sign faced the opposite direction on the other side of the tracks. An additional warning of danger to those proceeding toward the railroad crossing was the presence of railroad cars that were already occupying the crossing and directly in front of the driver. Texas & N. O. R. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940); Texas City Terminal Ry. Co. v. Allen, 181 S.W .2d 727 (Tex.Civ.App.-Galveston 1944, writ ref’d); Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App.-San Antonio 1934, writ ref’d); Missouri-Kansas-Texas R. R. Co. v. Bernhardt, 418 S.W.2d 368 (Tex.Civ.App.-Austin 1967, writ ref’d n. r. e.); Missouri-Kansas-Texas R. R. Co. v. Wagner, 400 S.W.2d 357 (Tex.Civ.App.-Waco 1966, writ ref’d n. r. e.).

The warnings signs that were located along the highway were adequate warnings for the dangers of an ordinary rural railroad crossing. Every railroad crossing is dangerous, but it is only crossings which are found to be extra hazardous that place the higher duty upon the railroad to use extraordinary means to warn travelers along the road. Ft. Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 283 (Tex.1964); Missouri, K. & T. Ry. Co. v. Magee, 92 Tex. 616, 50 S.W. 1013 (1899); Missouri, K. & T. Ry. Co. v. Long, 299 S.W. 854 (Tex.Comm.App.1927, judgmt. adopted). The plaintiffs in the case before us had to show not that the railroad crossing was dangerous; they had to show that it was extra hazardous.

The plaintiffs obtained a favorable jury finding that the crossing was extra hazardous and conditioned upon that finding the jury additionally found that the railroad was negligent in failing to have an automatic warning signal at the crossing. There was evidence that such a signal might consist of flashing red lights. The jury refused to find that the railroad was negligent in failing to break the train into smaller units, in failing to have lights or reflectors on the sides of the railroad cars, in failing to put out flares at the crossing, or in failing to place a flagman with a lantern at the crossing. The court charged the jury: “A railroad crossing is extra hazardous when, because of surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross arm sign.”

The central question in this appeal is whether there is any evidence which supports the jury finding that the crossing was extra hazardous, upon which finding the duty to provide the additional warning device is grounded. The plaintiffs relied upon several kinds of evidence to establish that fact: the view of the crossing was obstructed, the crossing was obscured by fog, there had been prior accidents at the crossing, and the crossing had a local reputation as an especially dangerous one. Missouri Pacific says that none of the evidence established the extra hazardous nature of the crossing.

Mr. John Pearson, a resident in the farm community, had lived in the locality all his life. He testified that a growth of trees obstructed the view of the crossing. This is not a case of an approaching train and a car that collide at a crossing; it is that of a car running into the side of a train that had already reached and was occupying the crossing. See Zamora v. Thompson, 250 S.W.2d 626 (Tex.Civ.App.-San Antonio 1952, writ ref’d); Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App.-San Antonio 1934, writ ref’d); Missouri-Kansas-Texas R. R. Co. v. Bernhardt, 418 S.W .2d 368 (Tex.Civ.App.-Austin 1967, writ ref’d n. r. e.). Mr. Pearson at first testified that trees and shrubs interfered with visibility of a traveler on the road, but when confronted with a picture of the crossing taken five days after February 2, the date of the collision, he admitted that there was no obstruction in the open pasture land during the wintertime when the trees were bare of their foliage. The photograph shows that the crossing was open and unobstructed.

The evidence that the crossing was obscured by fog does not support the finding that the crossing was extra hazardous. There was evidence that fog was more prevalent along the Brazos River which paralleled the railroad tracks near the point of the collision. This court and many others have rejected foggy conditions as proof of more than ordinary danger. The facts in Texas & N. O. R. R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113 (1940), were that just after midnight the plaintiff ran into the sixtieth car of a freight train consisting of eighty-seven cars. The engine was already more than one-half mile beyond the intersection. The intersection of the road and track was also on a flat prairie without any obstructions. “The night was dark and foggy and the visibility was poor.” 135 Tex. at 9, 136 S.W.2d at 1114. The court regarded the crossing as an ordinary one which did not cast a higher duty upon the railroad company to provide extraordinary precautions.

Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 746 (Tex.Civ.App.-San Antonio 1934, writ ref’d), reversed a jury finding that a crossing was more than ordinarily dangerous in the nighttime. That was a case in which the decedents during the nighttime ran into the middle of a moving train of eight cars. The approach to the crossing was over a straight, even and level country road for about 900 feet before reaching the crossing. There was testimony that the accident occurred during the wintertime when the vicinity “was usually enveloped in a heavy fog” that obscured the vision. 74 S.W.2d at 747. The countryside was open except for some mesquite trees that were bare of foliage at that time of the year. A companion case also decided as a matter of law that the crossing was not extra hazardous. Texas & N. O. R. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App.—San Antonio 1934, writ ref d).

The facts in Panhandle & Santa Fe Railway Co. v. Liscomb, 365 S.W.2d 190 (Tex.Civ.App.-El Paso 1963, writ ref’d n. r. e.), were that a driver just after midnight approached a spur track almost at a right angle. The road was straight but had a slight upward grade. It was dark but there was no fog. The driver collided with the fourth car from the front of the train. The court held, as a matter of law, that there was no evidence of an extra hazardous crossing.

Missouri-Kansas-Texas Railroad Co. v. Beasley, 321 S.W.2d 938 (Tex.Civ.App.—Eastland 1959, writ ref’d n. r. e.), collects a number of cases in which there was fog at the time of a nighttime collision with a train that was crossing a highway. That court also rejected as a matter of law the contention that fog made the crossing extra hazardous. It cited in support of its rendition of judgment for the railroad in addition to Compton and the Stratton cases, Texas & N. O. R. R. Co. v. Beard, 91 S.W.2d 1080 (Tex.Civ.App.-Beaumont 1936, writ ref’d); Reid v. Texas & N. O. Ry. Co., 254 S.W.2d 164 (Tex.Civ.App.-Galveston 1953, writ ref’d n. r. e.); Lundberg v. M-K-T R. R. Co., 232 S.W.2d 879 (Tex.Civ.App.-Waco 1950, writ ref’d n. r. e.) (cloudy but no fog); Cross v. Wichita Falls & S. R. R. Co., 140 S.W.2d 567, 569 (Tex.Civ.App.—Fort Worth 1940, no writ); Thompson v. St. Louis Southwestern Ry. Co., 55 S.W.2d 1084, 1085 (Tex.Civ.App.-Texarkana 1932, no writ).

The third kind of evidence upon which the plaintiffs relied was that of prior accidents. The defendant railroad objected to the admissibility of the evidence because it invaded the province of the jury and there was no proof of a predicate that there was a similarity of conditions in the former accidents and the Cooper accident. The objection also insisted upon proof that the evidence was in a “time frame . that ... is meaningful,” in other words, not too remote in time. The objection that the plaintiffs had failed to lay a proper predicate was a good one and the court erred in overruling it. The plaintiffs were required to show that the earlier accidents occurred under reasonably similar but not necessarily identical circumstances. Karr v. Panhandle & Santa Fe Ry. Co., 153 Tex. 25, 262 S.W.2d 925, 928, 932 (1953); Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Reynolds & Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.—Tyler 1964, no writ); Panhandle & Santa Fe Ry. Co. v. Liscomb, 365 S.W.2d 190 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e.); Texas & N. O. R. R. Co. v. Davis, 210 S.W.2d 195, 205 (Tex.Civ.App.—Beaumont 1948, writ ref’d n. r. e.).

After the railroad’s objection was overruled, the plaintiffs elicited the testimony of John Kilgore, a newspaperman from Rosebud, that he knew about two other accidents that had occurred at the crossing. He said that one accident involved a “Bama pie” man out of Austin; the other accident concerned an elderly couple who approached the same crossing from the east. On cross-examination Mr. Kilgore said he was not able to state whether the train ran into the car or the car ran into the side of the train that was already crossing the track. He also testified that the accident happened in the daytime, but he knew nothing else about it.

Plaintiffs then offered the testimony of Mr. Pearson about prior accidents. The railroad again insisted upon the exclusion of the evidence until plaintiff proved a proper predicate, and when the trial court overruled the objection, plaintiff asked “[D]o you have knowledge of whether or not accidents had occurred there more than one time?” Pearson answered, “Yes sir, there were other accidents there.” That is all of his testimony on the subject.

The prior “Bama pie” man’s accident happened during the daytime, and it resulted in a death. The other accident occurred when two elderly people approached the crossing from the east. There is no other evidence except that which the railroad developed on cross-examination showing that the witness Kilgore knew nothing about the circumstance of the accident involving the elderly couple and only that the other accident occurred in daytime. Pearson’s one line of testimony provides no predicate for either accident. Circumstances of neither accident were shown. We conclude that the prior accident testimony was not supported by a proper predicate that the earlier accidents occurred under similar circumstances. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950).

The fourth kind of evidence upon which plaintiffs relied to prove the extra hazardous nature of the crossing was the testimony of witnesses Kilgore and Pearson that the crossing had a reputation for being dangerous.

The railroad’s objections to witness Kil-gore’s testimony were addressed both to the evidence of prior accidents and the reputation testimony. The two kinds of testimony were both brief and intermingled. One objection was that the evidence invades the province of the jury. That objection ordinarily means that the question calls for a conclusion or opinion about an ultimate fact about which the jury is as competent as a lay witness to determine. Norvell, Invasion of the Province of the Jury, 31 Texas L.Rev. 731, 733-36 (1953). The objection has been held to be too broad. Hooten v. Dunbar, 347 S.W.2d 775, 778 (Tex.Civ.App.—Beaumont 1961, writ ref’d n. r. e.). But later when the witness Pearson testified, the railroad objected to the same kind of evidence because it was hearsay.

Certain kinds of reputation or hearsay evidence are admissible as exceptions to the hearsay rule. Reputation of old land boundaries, family pedigree, and a person’s moral character are such exceptions. 2 C. McCormick & R. Ray, Texas Law of Evidence, § 1321 et seq. (1956). We have found no instances in which reputation has been used to prove a controlling issue in a tort case such as the extra hazardous nature of a railroad crossing. That kind of evidence was excluded in Louisville & N. R. R. Co. v. Hall, 87 Ala. 708, 6 So. 277 (1888), and Otis Elevator Co. v. McLaney, 406 P.2d 7 (Alaska 1965). See C. McCormick, Handbook of the Law of Evidence § 249 (2d ed. E. Cleary 1972). The evidence was hearsay and, since it did not fall within any exception to the hearsay rule, it was incompetent evidence. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941).

The courts below were in error in giving weight to the testimony about prior accidents and the crossing’s reputation and the judgments must be reversed for that reason. The reputation evidence is inadmissible and incompetent to prove extra hazard-ousness. Ordinarily the error in admitting improper evidence would call for a remand. The only error that might be corrected by a remand would be to afford witnesses Kil-gore and Pearson opportunity to testify to show the similarity of the prior accidents to the Cooper accident. By cross-examination Mr. Kilgore has already testified that he knows nothing that would prove the similarity of the accidents. Mr. Pearson testified only that there had been prior accidents without undertaking to give any information about them. It does not appear that a retrial would enable the plaintiffs to make any better proof of the necessary predicate.

We reverse the judgments of the courts below and render judgment that the plaintiffs take nothing.

      . This is all of Mr. Kilgore’s testimony about prior accidents:
      Q. . . . But do you know of an accident that happened to a man that was a pie salesman?
      A. Sir, I believe that was prior to this accident. That’s a long time ago, but I believe that happened to the pie man, the Bama pie man — I believe he was out of Austin — prior to this accident.
      Q. Okay. Then do you know of an accident that happened to an elderly couple at this same crossing?
      A. They were coming from the other direction.
      Q. All right.
      On cross-examination Kilgore testified:
      Q. Okay. Now this collision between a railroad — railroad train and the Bama truck, do you happen to know whether that collision occurred at the front of the train? That is, did the train run into the truck that was on the crossing?
      A. I truthfully cannot say.
      Q. All right. How about the elderly couple coming from the other way? Do you know whether—
      A. No, 1 don’t know.
      Q. So you don’t know whether in those cases a hundred and three or more cars had gone over the crossing, do you?
      A. No, I can’t say that.

      Q. Okay. All right, sir. But it would be fair to say — were these other two accidents daytime accidents? The Bama truck and the other?
      A. The Bama truck was, yes.
      Q. All right. So, so far as you know, it wasn’t a whole lot like a car running into the one hundred and third box car of a train, was it, at night in a fog?
      A. No, sir.
      Q. And you just don’t know anything about the other one?
      A. I don’t recall. There has been a lot of film rolled through my camera in that many years.

      . Q. All right, sir. And I will ask you this: At the time that this accident happened, in regard to people who were in the vicinity and were acquainted with the crossing, did it have the reputation as being a dangerous crossing. I mean had there been enough accidents—
      A. Definitely so, yes, sir. There is no warning there. Yes, there is a warning there. There is a sign. The regular round railroad sign. Also on the highway surface itself there were the regular warnings — railroad crossing warnings. But prior to this, yes, sir, we considered it a dangerous crossing.
      Q. All right. In other words, in the community it had that reputation, is that right?
      A. Yes, sir.

      . Q. Okay. I say with regard to the area in which the crossing was located, did it have a reputation as an extremely dangerous crossing?
      A. Yes, sir, it did.


author: PER CURIAM.

text:
    Gene SMITH, Trustee and Independent Executor, Petitioner, v. Mildred Ann BRAMHALL, Individually a/n/f, Respondent.
    No. B-7147.
    Supreme Court of Texas.
    March 1, 1978.

      Clark Langford, Waxahachie, for petitioner.
    Don R. Stout and Gene Knize, Waxaha-chie, for respondent.
   PER CURIAM.

The application for writ of error is denied with the notation, “Refused. No Reversible Error.” Our action should not be interpreted as approving the conclusion of the Court of Civil Appeals that “unpaid child support is ... a debt for which judgment may be taken.” 556 S.W.2d 112, 113. Section 14.09(c) of the Texas Family Code provides only that unpaid child support may be reduced to judgment and enforced by the same means as a judgment for a debt, not that such sums are debts.


text:
    Sammy L. BECKENDORFF et al., Petitioners, v. HARRIS-GALVESTON COASTAL SUBSIDENCE DISTRICT, Respondent.
    No. B-7277.
    Supreme Court of Texas.
    March 1, 1978.
    Rehearing Denied April 12, 1978.

      Levy & Levy, Sam W. Levy, Houston, Cox, Pakenham & Roady, Joe G. Roady, Houston, for petitioners.
    John L. Hill, Atty. Gen., John S. Teutsch, Asst. Atty. Gen., Houston, for respondent.
   PER CURIAM.

We approve the opinion of the Court of Civil Appeals in this case. 558 S.W.2d 75. Among the principal holdings are that the act creating the Harris-Galveston Coastal Subsidence District, 1975 Tex. Gen.Laws, ch. 284 at 672, is constitutional; that it is within the grant of authority of Article XVI, § 59 of the Constitution of this State; and that the Legislature passed said Act pursuant to constitutionally mandated procedures. There is no denial of the equal protection of the law in either the geographic scope of the District or in its operation. The court below also held that the permit fees charged by the District are not occupation taxes prohibited by the Constitution. We agree.

An unqualified refusal of the application for writ of error cannot be given for the reason that the Court of Civil Appeals passed on other points which are not before us for consideration. This Court may not refuse a writ of error outright unless the opinion of the lower appellate court be one concerned exclusively with points over which this Court has jurisdiction. Article 5, §§ 3 and 6, Constitution of Texas, Vernon’s Ann.St., Rule 483, Texas Rules of Civil Procedure, D. C. Hall Transport, Inc. v. Hard, 163 Tex. 504, 358 S.W.2d 117 (1962). Therefore, the application for writ of error is refused with the notation “No Reversible Error.”


author: McGEE, Justice.

text:
    Alice Sneed WEST, Relator, v. Honorable Peter S. SOLITO, District Judge, et al., Respondents.
    No. B-6939.
    Supreme Court of Texas.
    March 8, 1978.

      Kenneth H. Burns, Barrow, Bland & Reh-met, Vincent W. Rehmet, Houston, for relator.
    Baker & Botts, R. B. Miller, Houston, for deponents.
    A. J. Watkins, Jamail & Gano, Joseph D. Jamail and John Gano, Houston, for respondents.
   McGEE, Justice.

This is an original mandamus proceeding. Relator, Alice Sneed West, seeks the writ to compel Honorable Peter S. Solito, Judge of the 164th District Court of Harris County, to vacate, amend, and revise his orders denying her motion to quash a subpoena duces tecum and her motions for protection. By these motions, Relator sought to preserve the attorney-client privilege invoked by her to prevent disclosure of certain matters within that privilege. The writ is conditionally granted.

The controversy here arises out of a suit filed in July, 1976, by Relator against the independent executors of her husband’s estate and certain other attorneys, accountants, trustees, and employees of trusts created under the estate. Relator alleges a continuing conspiracy by these individuals, hereinafter referred to as Respondents, to defraud her of valuable mineral interests. She seeks to set aside and cancel deeds conveying certain of her mineral interests to some of the Respondents, recovery of damages against all of the Respondents for breach of fiduciary responsibilities in connection with the administration of the estate and various trusts created under the estate, and recovery of damages for other alleged fraudulent transactions. The Respondents answered by way of a general denial.

In particular, Relator objects to conveyances of various royalty interests in the Clear Lake-Friendswood area which were devised to her under her husband’s will and similar royalty interests in the area which she had owned as her separate property. The royalty interests devised to the Relator were conveyed to her by distribution deeds on June 26, 1958, and October 1, 1958. On August 28, 1958, and November 19, 1958, she conveyed these interests by deeds of gift to her two daughters, who also served as executrices for the estate. On February 2,1965, Relator conveyed her separate property in the Clear Lake-Friendswood area to Dominion Investment Corporation, whose president was also the accountant for both Relator and the estate, and to certain other individuals who were employees and trustees of the various entities owned and operated by the estate. Relator alleges that these conveyances were made at a time when she was incapacitated, incompetent, and unable to understand the nature and consequences of her acts as a result of a severe alcoholic condition.

Relator was represented by the law firm of Baker & Botts from 1966 through 1970. Mr. Gordon Gooch, Mr. Tom Berry and Mr. Frank Harmon all performed legal services for her on behalf of the firm during this period of time. None of the above attorneys is a party to the present litigation, nor were they representing her at the time the conveyances in question were executed. They were representing her, however, when she executed a document on December 31, 1968, in which she allegedly released Respondents from all liability regarding their operation and administration of the estate prior to that date.

On March 28, 1977, attorneys for several of the Respondents filed notice of intention to take the oral deposition of Mr. Gordon Gooch. A subpoena duces tecum accompanied the notice and directed him to bring the following items to the deposition:

“Any and all records, files, memorandum or other instruments in writing, including bills for services rendered and paid by Alice Sneed West . . . for legal services rendered by the firm of BAKER & BOTTS.”

Upon receipt of the notice, Relator filed a motion to quash the subpoena duces tecum and, in the alternative, a motion for protection, asserting her attorney-client privilege with respect to any information obtained by the firm of Baker & Botts or Mr. Gooch during the period they represented her. Relator urged that the subpoena duces te-cum be quashed because it was excessively broad in nature and was an improper attempt to obtain material that was privileged under Rule 186a of the Texas Rules of Civil Procedure. In the alternative, Relator asked the trial court to conduct an in-camera inspection of the material subpoenaed by the Respondents to determine which material, if any, was not privileged and, therefore, subject to discovery.

After a hearing, Judge Solito entered an order which in pertinent part reads:

“It is therefore, ORDERED, ADJUDGED and DECREED by the Court that the oral deposition of witness Gordon Gooch ... be taken by the defendants . . . and that such witness shall testify to any and all matters of which he has knowledge and that any objections based upon the attorney-client privilege, or otherwise, are not waived, but aré preserved and may be urged at the time of trial and shall be determined by the Trial Court either on motion in limine or upon the tender of such testimony as evidence.
“It is FURTHER ORDERED, ADJUDGED and DECREED by the Court that the witness Gordon Gooch . shall produce those records described in the subpoena duces tecum, that they shall remain in his custody and not subject to inspection by anyone, that should any party so desire he may have the records marked as an Exhibit and made a part of the deposition and in such event such records, without having been inspected or read by any party or any attorney, shall be delivered into the custody of the Court Reporter and shall be sealed by the Court Reporter and delivered into the custody of the Clerk of this Court, subject to the further orders of this Court.”

Similar notices of intention to take oral depositions were then directed to Mr. Tom Berry and Mr. Frank Harmon. At this point, Relator filed another motion for protection requesting Judge Solito to order that the depositions of Gooch, Berry, and Harmon be taken before the court, or in the alternative, that the depositions be sealed upon completion and made unavailable for inspection. The motion was denied on July 11, with that order reciting that the Respondents were to be allowed to take the depositions of Berry and Harmon in accordance with the provisions of the trial court’s order of June 27. Upon motion of Relator, the production of the subpoenaed documents and the taking of the depositions was stayed pending this court’s action on her motion for leave to file a petition for writ of mandamus.

Discovery proceedings have as their aim and purpose the administration of justice by allowing the parties to obtain the fullest knowledge of issues and facts prior to trial. If the matter sought to be discovered is privileged, however, it is not subject to discovery. See generally Roy Mitchell Contracting Co. v. Mueller Co., 326 S.W.2d 522 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.); C. McCormick, Evidence § 96 (2d ed. 1972); 2 W. Jordan, Modern Texas Discovery §§ 10.02-10.03 (1974). The Texas Rules of Civil Procedure clearly reflect this policy of protecting privileged matter from discovery. Under Rule 201 the scope of discovery of a subpoena duces tecum is the same as that provided for depositions by Rule 186a. Rule 186a provides that “a deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” While the references to “privileged” matter in the discovery rules are general, it is clear that the intent is to encompass all privileges known to Texas law, one of the most common being that of the attorney-client privilege. General Commentary to Rule 186a, Tex.R.Civ.P. 186a; 2 W. Jordan, Modern Texas Discovery § 10.02 (1974).

It is recognized that a writ of mandamus may issue in a proper case to correct a clear abuse of discretion, particularly where the remedy by way of appeal is inadequate. See Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). At issue, then, is whether Judge Solito’s order of June 27 requiring Relator’s former attorneys to answer all deposition questions posed to them and to produce all documents relating to their legal representation of her would cause them to disclose or produce matters that are protected by the attorney-client privilege. If so, then it would be a clear abuse of discretion for correction of which the writ of mandamus may issue.

Respondents, in effect, argue that this court need not address itself to the above issue because the attorney-client privilege, in this instance, no longer exists to protect confidential matter arising out of that relationship from discovery. They claim that Relator has waived this privilege with respect to all communications between her and the law firm of Baker & Botts. Although Respondents advance three arguments in support of their waiver theory, we do not find these arguments to be persuasive.

The first argument involves a previous suit for an accounting between the parties in which Gooch answered certain written questions propounded to him by the Respondents. We note, however, that Relator properly preserved her privilege in that proceeding by securing a motion for protection that precluded Gooch from answering questions that involved matters found to be within the privilege by the trial court.

The other two waiver arguments have as their basis the purported release of December 31, 1968. First, Respondents contend that by filing the present suit to set aside the conveyances executed in 1958 and 1965, Relator indirectly attacked the integrity of her former attorneys at Baker & Botts. This argument proceeds on the logic that the release executed while Baker & Botts served as her attorneys is impliedly placed in issue by Relator’s pleadings, thereby also placing in issue the conduct and state of mind of both Relator and her attorneys at the time the release was executed. Secondly, they contend that by filing suit, Relator put information protected by the attorney-client privilege into issue and to allow the privilege to protect against disclosure would be manifestly unfair. The information sought concerns the testimony of Relator’s former attorneys relative to the negotiation and execution of the release.

We do not pass on the merits of these arguments because the release that is central to both of these arguments was not placed in issue before the trial court, thus depriving that fact finder of the opportunity to determine from the facts and circumstances surrounding the release if there was an implied waiver of the privilege. There were no allegations in the pleadings on either side that directly, or indirectly, impugned the integrity of the former attorneys. Relator’s first amended original petition did not join her-former attorneys as parties or allege any misconduct regarding their representation of her. Respondents answered these pleadings with only a general denial. The facts presented to this court do not reflect that the release was ever before the trial court. The first time the release was put into issue was before this court when it was attached as an exhibit to the brief of one of the Respondents. For this court to decide if there has been an implied waiver of the privilege would necessarily require us to consider disputed questions of fact surrounding the negotiation and execution of the release. Therefore, we do not reach the merits of the arguments based upon the release because an appellate court may not deal with disputed areas of fact in a mandamus proceeding. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709 (1932); Dick v. Kazen, 156 Tex. 122, 292 S.W.2d 913 (1956); Stroud v. Beggerly, 542 S.W.2d 229 (Tex.Civ.App.—Tyler 1976, no writ).

Based upon the facts and arguments presented to us, the Respondents’ allegations of a waiver of Relator’s attorney-client privilege cannot be supported at this time. Accordingly, Relator was entitled to assert the privilege to prevent disclosure of matters that she considered to be within the privilege. By her motion to quash the subpoena duces tecum and the motions for protection, she sought to invoke the privilege with respect to her former attorneys, Gooch, Berry, and Harmon. We must now determine whether the trial court’s order of June 27 would cause the former attorneys to disclose or produce confidential matters protected by that privilege.

It has been stated that the purpose of the attorney-client privilege is to promote the unrestrained communication and contact between an attorney and client in all matters in which the attorney’s professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding. 2 W. Jordan, Modern Texas Discovery § 10.04 (1974); see Ballard v. Ballard, 296 S.W.2d 811 (Tex.Civ.App.—Galveston 1956, no writ); C. McCormick, Evidence § 89 (2d ed. 1972). This purpose is effectively thwarted by the trial court’s order of June 27.

The order is too broad with respect to both the deposition testimony and the subpoenaed documents. First, it requires the attorneys to answer all of the deposition questions posed to them, regardless of any objections based on the attorney-client privilege, thereby causing disclosure of matters that might otherwise be protected by the privilege. A judicial determination of what matters, if any, are privileged in this case comes only after the matters have already been disclosed. A motion in limine or objection to the testimony at the time it is offered as evidence is totally inadequate to preserve the privilege, for once the matter has been disclosed, it cannot be retracted or otherwise protected. See Maresca v. Marks, supra.

Furthermore, any subpoenaed documents that might come within the privilege are also inadequately protected by the terms of the order. The order states that on motion of a party, any of the documents may be made an exhibit to the deposition, sealed without inspection, and then delivered to the clerk of the court, “subject to the further orders of the court.” This is unacceptable because it requires the attorneys to first produce the requested documents; many of those documents required to be produced might well be privileged. Therefore, we think that an attorney should not be required to produce documents that he considers to be within the attorney-client privilege until after a trial court has determined whether or not they are privileged. Moreover, the post-production method of protection by making the produced documents subject to the further orders of the court is insufficient to preserve the confidentiality of documents that might be privileged. There is nothing in the order which limits the court’s power to release all or part of the produced documents at a later date without first making a determination of what documents are privileged.

Therefore, we hold that it was an abuse of discretion for the trial court to overrule Relator’s motions and order her former attorneys to testify as to all matters of which they had knowledge and to produce all documents relating to their legal representation of Relator without the trial court first determining which of these matters, if any, were within the attorney-client privilege.

There are several viable alternatives available to protect matters within the attorney-client privilege from being disclosed upon the taking of the attorneys’ depositions. The Relator requested one such alternative in her second motion for protection when she asked the trial court to conduct the depositions. Under the circumstances, however, we think that the provisions of Rule 215a provide an adequate remedy. This rule would allow the attorney-deponents to refuse to answer any questions which would violate the privilege. After completing the deposition as to all other matters, the examining party could apply to the trial court for an order to compel answers to the contested questions, at which time the trial judge could determine what matter sought to be discovered is within the privilege. An order could then be issued compelling answers to those questions covering matters not within the privilege. This procedure accomplishes several beneficial purposes. First, and most importantly, it affords greater protection for the attorney-client privilege. Secondly, it preserves the effectiveness of pretrial discovery by deposition. Finally, it requires the least amount of direct court supervision over the deposition proceedings.

As previously stated, privileged documents are not discoverable under Rule 201. The same degree of protection afforded testimony involving privileged matter in a deposition is to be extended to subpoenaed documents as well. Therefore, to properly preserve this privilege, Judge Sóli-to should examine the documents sought to be discovered to determine which of them, if any, are privileged prior to the production of any such documents.

We anticipate that Judge Sólito will vacate his orders of June 27 and July 11 ordering the attorneys to answer all questions and to produce all documents pertaining to their representation of Relator. Should he fail to do so, the Clerk of the Supreme Court will be instructed to issue the writ of mandamus.

      . All references to rules are to the Texas Rules of Civil Procedure.

      . The attorney-client privilege belongs to the client. Unless the client waives it, the attorney cannot be compelled to disclose matters that come within that privilege. See Fisher v. Continental Illinois National Bank & Trust Co., 424 S.W.2d 664 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ refd n.r.e.); C. McCormick, Evidence § 92 (2d ed. 1972).

      . We do not mean to imply that there can be no waiver of the attorney-client privilege when an attorney’s integrity is attacked by his client. The two cases of Smith v. Guerre, 159 S.W. 417 (Tex.Civ.App.—Amarillo 1913, no writ) and McClure v. Fall, 42 S.W.2d 821 (Tex.Civ.App.—Waco 1931), aff'd, 67 S.W.2d 231 (Tex.1934), illustrate the well-established principle that when an attorney’s professional conduct is challenged by the client, the privilege is waived so far as necessary to defend the attorney’s character. But the present case is distinguishable from those two cases. They were not mandamus proceedings where the waiver issue was first raised in the appellate court. Furthermore, in both of those cases the transaction that formed the basis for the waiver was directly placed in issue by the pleadings of the parties, thereby giving the trier-of-fact the opportunity to rule on the question. In subsequent proceedings in this case, it is possible that the trial court after the release is put in issue might determine that Relator has waived her privilege with respect to her former attorneys. But that is a matter for the trial court and not for this court in an original mandamus proceeding.


text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Petitioner, v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF METROPOLITAN FORT WORTH, et al., Respondents.
    No. B-6936.
    Supreme Court of Texas.
    March 8, 1978.
    Rehearing Denied April 5, 1978.

      McBryde, Bogle & Green, John McBryde, Fort Worth, for petitioner.
    Scarsborough, Black, Tarpley & Scarborough, J. R. Black, Jr., Abilene, Byrd, Davis, Eisenberg & Clark, Austin, Brown, Crowley, Simon & Peebles, Fort Worth, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The court of civil appeals correctly reversed and remanded this cause for new trial. 552 S.W.2d 497. Our action should not be interpreted, however, as approving the opinion of the court of civil appeals on motion for rehearing in which it stated that neither the covenant not to execute nor stipulations concerning it were binding on the minor, Johnny Howie. These issues were not urged upon the court by any party and cannot support its judgment. State Farm Mutual Automobile Insurance Co. v. Cowley, 468 S.W.2d 353 (Tex.1971); Tex.R. Civ.P. 418. The application for writ of error is refused, no reversible error.