author:
BARROW, Chief Justice.
      CADENA, Justice,

text:
    Juan Oscar ROSALES, Appellant, v. ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellee.
    No. 15791.
    Court of Civil Appeals of Texas, San Antonio.
    May 11, 1977.
    Rehearing Denied June 8, 1977.

      Donald J. Walheim, San Antonio, for appellant.
    Kenneth L. Clark, Clark, Thornton & Summers, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has appealed from a judgment entered on a jury verdict whereby he recovered 25 weeks of total temporary incapacity and 116 weeks of partial temporary incapacity in his suit brought under the Texas Workmen’s Compensation Act. Appellant asserts under his single point of error that the trial court erred in overruling his motion for a new trial because of jury misconduct during the jury’s deliberations.

Appellant injured his back on April 11, 1974 while lifting a heavy container in the course of his employment for Industrial Disposal Service. He testified that he felt something pop in his back and has suffered pain since that time. Appellant has not worked since the injury and he testified that he has intense pain in his low back which radiates down his left leg.

The extent of appellant’s disability was hotly contested and the medical testimony is sharply conflicting. Dr. Bilderback, an orthopedic surgeon, testified on behalf of appellant. He first saw appellant about three weeks after the injury, and appellant had been under his treatment for nearly two years by the time of the trial. His diagnosis was that appellant had sustained a compression fracture at L-4 with nerve root irritation associated with soft disc herniation. Dr. Bilderback expressed the opinion that appellant would never be able to do heavy manual labor although appellant could return to light duty which the doctor classified as 40 percent of appellant’s activity.

Dr. Arredondo examined appellant twice at the request of appellee and testified in its behalf. He examined appellant on October 2,1974 and again about a year later. It was his opinion that appellant could return to work at any time. One of the principal facts in dispute was whether the compression fracture of L — 4 was caused by the injury of April 11, as believed by Dr. Bilder-back, or pre-existed this incident. Dr. Ar-redondo was of the opinion that the compression fracture existed prior to the trauma sustained on April 11 in that the x-rays demonstrate an old fracture. Dr. Modders, a radiologist, had examined the x-rays taken on April 12, 1974 on behalf of the physician who treated appellant shortly after the accident. Dr. Modders testified that in his opinion the compression fracture was due to an old injury.

Appellant asserts that the jurors committed two overt acts of misconduct during their deliberations. Two jurors testified at the hearing of appellant’s motion for a new trial, but the misconduct is based solely on the testimony of juror Ernesto Carreon. Mr. Carreon, who was the only dissenting juror to the verdict, testified that two improper statements were made by jurors during the jury’s consideration of the question of total disability. He testified that a juror said that appellant would go to Mexico and the taxpayers would be paying for him while he was over there enjoying the money. This juror said the taxpayers would have to pay appellant’s benefits. In response to the trial judge’s question, Mr. Carreon said he knew the suit was against an insurance company, but he thought that the jurors believed the taxpayers might be involved because the appellant was sick and would receive unemployment compensation.

Mr. Carreon also testified that a lady juror told another lady juror that although she had a bad back, she could still lift mail bags. The only other juror to testify was Ray Phipps, who testified that the statement about appellant going off to Mexico to spend the money “could have been said, I don’t know.”

A party asserting misconduct of the jury has the burden of proving (1) that the misconduct occurred; (2) which was material, and from the evidence, both on the hearing of the motion and the trial of the case, and from the record as a whole; (3) that injury probably resulted to the complaining party. Rule 327, Tex.R.Civ.P.; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969); Pope, Jury Misconduct and Harm, XII Baylor L.Rev. 355 (I960).

The trial court’s order overruling the motion for new trial impliedly found that misconduct did not occur since it contained no express finding of misconduct. Fountain v. Ferguson, supra; Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965). Appellant urges, however, that the uncontradict-ed testimony of juror Carreon establishes that the misconduct was material and probably resulted in injury to appellant. Cf. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943). This contention overlooks the proposition that Carreon dissented from the jury verdict which was agreed upon by the other eleven jurors. The trial court was entitled to take Carreon’s advocacy into consideration in weighing his credibility. Although juror Phipps did not expressly deny that a statement was made regarding liability of the taxpayers, his failure to recall that such a statement was made is some evidence that the statement was either not made or, in any event, was of slight significance in the jurors’ deliberations.

Appellant, a Mexican National testified that he had returned to Mexico on a prior occasion after he had worked about six months in San Antonio and that he lived off his earnings for over a year. Thus, the jury could properly consider that appellant might return to Mexico after the case was settled. Obviously, the taxpayers had nothing to do with this case and we fail to see how the jurors could seriously bring them into the case. However, if the jurors were concerned about the possibility of appellant receiving unemployment benefits from the taxpayers, as stated by Carreon, such statement would probably be harmful to appel-lee and not appellant. The jurors would likely prefer to place the liability on appel-lee rather than on the taxpayers. In any event, it is well settled that the jurors’ deductions from the evidence, though faulty, illogical, arbitrary, or bizarre, do not constitute misconduct. Trousdale v. Texas & N.O.R. Co., 264 S.W.2d 489 (Tex.Civ.App. —San Antonio 1953), aff’d, 154 Tex. 231, 276 S.W.2d 242 (1955); Spear v. Central Distributing Co., 384 S.W.2d 180 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.); Pope, The Mental Operations of Jurors, 40 Texas L.Rev. 849, 855 (1962).

It was misconduct for the lady juror to mention her own personal experiences relative to the disability she suffered from her back injury. It does not appear that this statement was of any significance in the jurors’ deliberations in that Carreon testified that the lady to whom the statement was made laughed in response. Almost all of the testimony related to the question of appellant’s disability, and the conflicting medical evidence made the jurors’ job a difficult one. The jurors deliberated over this evidence for about two and one half hours before returning their verdict. There is no showing that the verdict was not the result of a sincere attempt by the jurors to answer the issues from the evidence in accordance with the instructions of the trial court.

We conclude from an examination of the record in this case, including the testimony given at the hearing of the motion for new trial, that the trial court did not err in overruling appellant’s motion for new trial.

The judgment is affirmed.

CADENA, Justice,

dissenting.

The uncontradicted testimony is that at a time when five jurors had voted to answer the issue in question in favor of plaintiff, one of the jurors stated that plaintiff would go to Mexico and there enjoy the money which “us taxpayers would be paying for him while he was over there.” Despite an admonition, the juror persisted in advancing this argument for about 45 minutes and the jury finally voted 11-1 against plaintiff on the issue in question.

There is nothing in the record to indicate that the juror advancing this argument against answering the issue favorably to plaintiff was referring to unemployment compensation. The statement was clearly to the effect that if the issue were answered in favor of plaintiff, the taxpayers would have to pay for it. Carreon, the juror who testified concerning the statement, said, “I guess they believed it was to be unemployment compensation . . . .” At best this is the surmise of the witness, attempting to determine the relevancy of the remark concerning the burden of taxpayers, concerning the mental processes of other members of the jury. He stated that unemployment compensation was the “only check” he could think of.

The testimony of the only other juror who testified, Phipps, in no way contradicts the testimony of Carreon. He testified that he did not remember, because of the time involved, whether the statement relating to burden on the taxpayers was made or not. He stated, “it could have been said,” adding that he could not “say ‘yes’ or ‘no’ definitely.” He did not say that if the statement had been made he would have remembered it. In the absence of such evidence, it can hardly be argued that his failure to remember the statement is “not made,” particularly in view of his admission that the statement could have been made. Nor does his lack of recollection imply that the statement, if made, was “of slight significance.” “I can’t remember” is not the equivalent of “it didn’t happen,” particularly in view of the added statement, “it could have been said,” and in the absence of a claim by the witness that if it had happened he would remember it.

This case does not involve “faulty, illogical, arbitrary, or bizarre” deductions from the evidence. It involves simply a statement, finding no support in the evidence, concerning the onus which would be placed on the backs of the jurors, as taxpayers, if the issue were answered favorably to plaintiff. It clearly was intended to induce the jurors to focus their attention on the effect of the verdict on their own financial wellbe-ing, rather than on drawing inferences from any part of the testimony.

The contention that the statement, if made, would result in prejudice to the insurance company rather than to the plaintiff is unpersuasive. A statement to the effect that an affirmative answer to an issue would result in a heavier tax burden on the jurors is hardly an argument in favor of answering the issue “yes” in order to assume such additional burden. It is not easy to believe that after it was pointed out that an affirmative answer would result in a burden to taxpayers, four jurors changed their vote from “no” to “yes.” The discussion of the effect of the verdict on the jurors as taxpayers did not involve an analysis of any testimony by a witness from the witness stand. The discussion concerned itself solely with “testimony” by a juror. The fact that the juror’s “testimony” was incorrect is beside the point.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Ralph G. TEMPLETON, Appellant, v. UNIGARD SECURITY INSURANCE COMPANY, Appellee.
    No. 17720.
    Court of Civil Appeals of Texas, Fort Worth.
    May 12, 1977.
    Rehearing Denied. June 2, 1977.

      Spivey, Hazel, Scarborough & Grigg and J. Patrick Hazel, Austin, for appellant.
    Hudson, Keltner, Smith, Cunningham & Payne and H. S. Sparks III, Port Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

May 7, 1976 (opinion at 537 S.W.2d 315) this court rendered its judgment in this workmen’s compensation case holding, among other things, that where there is claimed to have been a request for leave to file a trial amendment (the purported request for amendment appearing in an instrument we had not permitted to be filed as part of the appellate record) complaint because of denial of such leave would not be considered on appeal.

December 31, 1976 the Supreme Court (setting out local rules under which the trial court conducted litigation, and held not to be inconsistent with Texas Rules of Civil Procedure) reversed this court on its failure to file the supplement transcript. Templeton v. Unigard Security Insurance Company, Tex., 550 S.W.2d 267.

Reference is made to the prior opinions of this court and the Supreme Court for purposes of clarification.

Upon receipt of the Supreme Court’s mandate we directed that the supplemental transcript be filed; with the case rebriefed. In that aspect of the appeal, all others having been properly disposed according to the Supreme Court, we heard the appeal anew.

Judgment of the trial court is affirmed.

Plaintiff urges that the trial court was in error in refusing to grant his request for leave to file a trial amendment by which he desired to specifically allege that at time of his injury he was a “borrowed employee”. He contends that as a matter of law the request was timely; that the refusal to permit the same constituted an abuse of discretion on the part of the court; and that the refusal amounted to such a denial of the rights of plaintiff under provision of Rule 434 of the Texas Rules of Civil Procedure as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

Upon investigation of the record we find that no “trial amendment”, as by instrument in specie, was prepared and tendered to the trial court with request for leave that it be permitted to be filed. A request relating to such an amendment appears in the body of the instrument denominated “Plaintiff’s Objections and Exceptions to the Court’s Charge”. This was the only instrument in the supplemental transcript we had denied leave to file and therefore refused to consider as part of the appellate record in our opinion and judgment of May 7, 1976.

In such instrument plaintiff objected because by Special Issue No. 1 the charge failed to inquire whether he was a borrowed employee or borrowed servant of the company he contended to have been his master at time of his injury. This was dictated to the court reporter in the presence of the court. The court announced that the objection would be overruled “on the ground there are no pleadings whatsoever of borrowed employee contained in either the Plaintiff’s Original Petition or his First Amended Original Petition on file herein.” The court’s announcement appears in the “Plaintiff’s Objections and Exceptions” and not elsewhere.

At this point plaintiff, by his attorney, proceeded to dictate to the court reporter (to whom the Objections and Exceptions to the Charge were being dictated) the following: “Comes now the Plaintiff and after the Court’s ruling on his requested special issue regarding borrowed employee, respectfully requests of the Court that in the interest of justice he be allowed to file a trial amendment by interlineation or otherwise that would submit this issue to the Jury regarding a borrowed employee.” The court added by dictation: “And for the reason that this request is not timely made by any means, coming after both sides have rested and closed, the Court would respectfully decline to permit such trial amendment.”

Of course the ruling and decision of the judge of the court wherein there was refusal to permit amendment of existing pleadings by interlineation could not be error; we do not understand plaintiff to contend that it could have been error. This resolves the substance of plaintiff’s dictated request as: “Plaintiff requests he be allowed to file a trial amendment alleging that he was a borrowed employee of the alleged employer." Necessarily does plaintiff represent in what has been stated that he was told that if and in the event he prepared an instrument of trial amendment, and if and in the event he tendered it to the trial court with the request that leave be granted to file the same as part of the pleadings in the case, such leave to file would be by the trial court refused.

To prepare and tender such an instrument of trial amendment to the court, and have the court endorse thereon the fact of the refusal to permit the same to be filed, would in our opinion, and by our holding in this case, persist as part of the duty of the plaintiff in the perfection of a complaint on appeal. A bill of exceptions because of the refusal of a tendered trial amendment would properly become part of the record on appeal by this procedure.

An appellate record presenting complaint by showing that “if” plaintiff had made the attempt to obtain leave to file a trial amendment such attempt would not have been of any avail is not sufficient to demonstrate error which would occasion reversal of the judgment, even assuming the desired amendment to have been one the trial court should have permitted.

Plaintiff’s complaint did qualify as a bill of exceptions to what actually occurred in that the court’s ruling does appear as a matter of record in “Plaintiff’s Objections and Exceptions to the Court’s charge”.

What is not made part of the bill, however, is that there was a denial of opportunity or time for exercise of the right to prepare and tender the trial amendment to the court for his consideration and notation thereon of “granted” or “refused”. In other words, it was by the plaintiffs own choice that no instrument constituting a trial amendment was tendered to the court. Therefore, for appellate purposes the plaintiff has not shown that he invoked the exercise of discretion by the trial court to grant or deny its leave to file a proffered amendment.

In a case where there was allowance of amendment by interlineation of existent pleadings it was stated by former Chief Justice Alexander, as follows: “Ordinarily the amendment (of a pleading) should be made either by filing a new pleading, as provided in Rule 64, Texas Rules of Civil Procedure, or by trial amendment as provided for in Rule 66.” Buchanan v. Jean, 141 Tex. 401,172 S.W.2d 688, 689 (1943). It was held in another case that where a party moved orally for leave to file a trial amendment, without its having been prepared in written form, proper practice would be for the court to require that proposed trial amendment be presented in exact form desired before ruling in order that opposing party might clearly develop prejudice, if any, which would result from the trial amendment. Century Rental Equipment, Inc, v. Neo-Flasher Mfg. Co., 378 S.W.2d 957, 958 (Tex.Civ.App. — Houston 1964, no writ). It has been held that where the record does not show the proposed trial amendment, and where there is nothing in the record to show that the proposed trial amendment was presented to the court, a point of error complaining of the refusal to permit it cannot be reviewed on appeal. Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933, 935 (Tex.Civ. App. — Austin 1962, no writ). See other cases in Tex.Dig. “Appeal and Error”, ⅞=681, “Amendments.”

Under like circumstances it has been held that with nothing more shown than that a litigant desired to file a trial amendment a denial would not constitute an abuse of discretion. Lone Star Steel Company v. Owens, 302 S.W.2d 213, 219 (Tex.Civ.App.— Texarkana 1957, writ ref d n. r. e.).

We hold in this case that it could not be said that the trial court abused his discretion in the denial of the proffer of the non-existent trial amendment. This is our holding even though it be assumed that the trial court would have erred in the refusal had the same been reduced to writing and tendered. It would only be where there was an abuse of discretion by the trial court in refusing to allow an actually existent trial amendment to be filed that an appellate court could reverse the judgment in the case because of the refusal. With a properly prepared and presented trial amendment existent yet would it be improper to reverse absent our additional finding that error by its refusal was prejudicial. The circumstances must be such as would require reversal and remand by Rule 434, Texas Rules of Civil Procedure. In view of our holding that there was not error by the court in denying leave to file the trial amendment plaintiff obviously desired, we would not reach the question of reversibility by Rule 434. In an abundance of precaution we state that our holding would be that there was reversible error by that rule in view of the evidence adduced on trial. Such conditional holding would be important only if we should be held in error by our primary holding hereinabove explained.

By error on the initial appeal this court denied leave to file supplemental transcript; by remand of the Supreme Court we have allowed the transcript to be filed and have reconsidered the case on appeal along with the contents thereof in order to finally determine proper disposition.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Benito G. SALAZAR et al., Appellants, v. Robert Hicks HILL, III, et al., Appellees.
    No. 1150.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 12, 1977.
    Rehearing Denied June 2, 1977.

      Steve Q. McManus, Kilgore, Cole, Seer-den & McManus, Victoria, for appellants.
    Leslie S. Lockett, Kleberg, Mobley, Lock-ett & Weil, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from a rear end automobile collision case in which a take nothing judgment was rendered based on jury findings. Appellant, Elena Salazar, along with her husband, Benito Salazar, brought suit alleging that the automobile in which they were riding was struck from the rear by a loaded pickup truck driven by appellee, Robert Hicks Hill, III. It was further alleged that Mr. Hill was employed by D. A. Warden, d/b/a Warden Company, and was within the scope of his employment at the time of the accident. Both Hill and Warden were sued. The jury answered all negligence issues about Hill’s conduct favorably to the defendants and all damage issues were answered “0”. Plaintiffs appeal from the trial court’s take nothing judgment. We affirm.

There is no material dispute about the facts. The date of the collision was September 11,1974. The weather that day was cloudy with intermittent rain or drizzle. Both vehicles were headed south in the inside lane of Washington Street in Bee-ville, Texas. The pavement was wet and slippery. At the time of the collision Mrs. Salazar was a passenger in a car which was being driven by her husband, Benito, and which was either stopped or slowing to a stop in deference to a car ahead which was preparing to turn left. Mr. Hill had been following the Salazar’s vehicle for four blocks. He was three to four car lengths behind them when he first saw that their brake lights were on; whereupon he applied his brakes. He had not seen the Salazar’s brake lights actually come on. Upon application of his brakes his car began to skid to the right after his brakes had locked. Hill was unable to bring the skid under control and struck the Salazar vehicle on the extreme right rear. Upon contact the vehicles separated and came to a stop partially in the outside lane of the south bound traffic.

Damage to the Salazar’s vehicle was to the right rear bumper and fender as well as to an area just above the lock on the truck. The latter damage was disputed by the appellees. The Hill pickup was damaged on the left front grill and fender which was forced back on the left door so that the door could not be opened. Both vehicles, however, were driven from the scene and an investigating officer testified that damage was minor except for the Hill pickup. No one suffered visible injuries and no one went to the hospital, but Mrs. Salazar said that she was not sure if she was all right. She did see her doctor that day.

Appellants have brought forward three points of error. Among appellants’ points of error are two legal insufficiency points (“no evidence”). With each such point, we shall view the evidence in a light most favorable in support of the jury findings and consider only the evidence and inferences which support the findings and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). In considering the appellants’ factual insufficiency point of error (“against the great weight and preponderance of the evidence”), we shall examine the whole record to determine the evidence supports the jury findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In that the jury in our case answered all of the material issues in the negative, some of the other principles we will be considering during our discussion of appellants’ points follow. The mere fact that we might have reached a different conclusion on the facts does not authorize us to substitute our judgment for that of the jury. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950). It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in testimony of any one witness as well as testimony of different witnesses. Further it is within the jury’s province to believe one witness and disbelieve another, or to believe part of the testimony of a witness and disbelieve any other part. Scott v. Gibson Oil Company, 471 S.W.2d 924 (Tex.Civ.App. — Tyler 1971, no writ).

A question of fact as to the existence of negligence is usually presented when one vehicle overtakes and strikes one in front of it going in the same direction. Renshaw v. Countess, 289 S.W.2d 621 (Tex. Civ.App. — Fort Worth 1956, no writ). In cases of this character (rear end collisions), standards of ordinary care cannot be fixed with any degree of certainty, but the matters must be left in large measure to the jury because the jury is not only the judge of the facts and circumstances but may also draw reasonable inferences and deductions from the evidence introduced before it. Gaitan v. Reyes Salvatierra, 485 S.W.2d 602 (Tex.Civ.App. — San Antonio 1972, no writ). Additionally, the mere fact of the occurrence of a rear end collision does not relieve the plaintiff of his burden of proving that the defendant committed a negligént act proximately causing the collision. Chapin v. Hunt, 521 S.W.2d 123 (Tex.Civ.App.— Beaumont 1975, writ dism’d).

Appellants’ first point attacks the jury findings in response to special issue 1, parts a, b, c, d and e, as being so contrary to the great weight and preponderance of the evidence as to be clearly wrong. This issue and its subsections involve questions of Hill’s lookout, speed, application of brakes, following distance from the Salazar vehicle, and failure to turn to the right. As stated, all of these findings were favorable to ap-pellees.

As we have noted, the jury is the trier of the facts and as such is in a better position to judge these issues than are we. The jury in this instance answered the negligence issues for the appellees. From the facts in this case we conclude that the jury findings attacked by appellants merely indicate that the appellants have failed to carry their burden of proving the alleged acts of negligence. Stafford v. Hardi, 464 S.W.2d 958 (Tex.Civ.App — Dallas 1971, writ ref’d n.r.e.). And the jury’s failure to find those facts (of negligence) vital to the appellants’ recovery need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973). We hold therefore that the findings complained of are not so against the great weight and preponderance of the evidence as to be manifestly wrong.

In support of their position appellants rely upon the somewhat analogous case of Dellolio v. Brown, 399 S.W.2d 425 (Tex.Civ.App. — Houston 1966, no writ). Unlike the present case, however, the plaintiff in Del-lolio was stopped in obedience to a traffic signal. While in the present case the car struck from the rear was stopped or stopping in the middle of a street and was the third car away from an intersection. Such a fact situation is distinguishable from the cited case and does not compel a finding of negligence. Appellants’ point 1 is overruled.

In their point 2, the appellants assert error in the trial court’s submitting the definition of unavoidable accident to the jury because there was no evidence to support such a submission.

When the defendant pleads unavoidable accident and the evidence raises unavoidable accident, the trial court must submit it. A jury issue is raised if the evidence shows wet pavement and skidding. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Schiller v. Lewis, 451 S.W.2d 544 (Tex.Civ.App. —Houston [1st] 1970, no writ). There is no dispute but that the pavement was wet and the testimony of the defendant and the officer investigating the accident was that both cars were skidding when the collision occurred. Therefore, we find that the trial court acted correctly in submitting the definition of unavoidable accident because there was some evidence to support the submission of that definition. Appellants’ point 2 is overruled.

In their final point appellants maintain that the trial court erred in submitting a definition of sudden emergency because there was no evidence of probative value to support such submission.

A trial court is correct in submitting definitions and instructions on sudden emergency if the conditions or circumstances relied upon arise suddenly and unexpectedly, call for an action leaving no time for deliberations, and were not brought about by the negligence of the party seeking to avail himself of the doctrine. Deviney v. McLendon, 496 S.W.2d 161 (Tex.Civ.App.-Beaumont 1973, writ ref’d n.r.e.).

Mr. Salazar told the officer investigating the accident that the lead car came to a sudden stop; as a consequence he tried to veer to the right to avoid a collision. He also testified that the road on which the accident occurred was very slippery. The investigating officer confirmed this and testified that both vehicles were skidding at the time of the collision.

Hill testified that he was aware that it had been raining but that he found the road to be more slippery than expected. This conclusion was bolstered by his further testimony that he slipped while walking on the road after the accident as follows:

“Q Now, you said that after the accident was all over, the vehicles came to a rest, you got out the right door. Did you have any trouble when you got out of the car with your footing?
A Yes, sir.
Q Tell the jury about that.
A Well, when I walked toward the front of the car and the Salazars got out and started to come back, I slipped a little bit. It was — I mentioned to Mrs. Salazar that it was awfully slick, like maybe there was some oil or something on the road. I don’t know, the road didn’t have any asphalt, I mean, gravel or anything showing. It was just smooth, you know. And we stopped between the two cars, between the back of their car and the front of mine, and looked over the damage while Mr. Salazar went to get — to call the police.
Q And the road was unusually slippery?
A I think so.”

Hill also testified that he would normally have been able to stop his vehicle prior to the collision under normal circumstances. It is our opinion that this testimony presents some evidence of sudden emergency and the trial court was correct in submitting a definition based thereon. Appellants’ final point is overruled.

The judgment of the trial court is affirmed.


text:
    CORPUS CHRISTI NATIONAL BANK, Co-Trustee, Appellant, v. Clyde H. GERDES, Individually and as Receiver of the Estate of Casper Gerdes, Jr., Deceased, et al., Appellees.
    No. 1136.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 12, 1977.
    Rehearing Denied June 2, 1977.

      Lev Hunt, Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellant.
    Charles Cunningham, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

In this appeal the primary question to be resolved is whether an exculpatory provision in a trust document specifying that a trustee shall not be liable for any mistake, error of judgment, or negligence is binding on the beneficiaries of the trust. We hold that the provision here is binding.

The Corpus Christi State National Bank (now Corpus Christi National Bank) was designated independent executor and co-trustee in the will of Casper Gerdes, Jr. After Gerdes had died, and after the Bank had begun the administration of the estate, discord arose between the Bank and the beneficiaries. Whereupon the Bank brought this action seeking to resign as trustee, for increased compensation, and for attorneys’ fees.

In response, Clyde Hollingsworth Gerdes, individually, as a beneficiary of the Gerdes’ estate, as surviving wife, and as court appointed receiver of the estate; and Sally H. Gerdes, daughter of Casper and Clyde, the other beneficiary of the estate, both filed a cross-action against the Bank. In the cross-action Mrs. Gerdes and her daughter alleged negligence and gross negligence by the Bank in its handling of the estate properties and sought damages, both compensatory and exemplary. After a jury trial to a verdict, the trial court rendered judgment granting the Bank’s application to resign as trustee, denying all the other relief on the Bank’s action, and allowing Mrs. Gerdes recovery of $9,220.00 on her cross-action (subsequently reduced $750.00 by remitti-tur). On appeal all parties complain of that judgment.

While the suit was pending, Mrs. Gerdes was appointed receiver of the estate properties and the properties were delivered to her. The order allowing the Bank to resign as trustee is final and the order appointing Mrs. Gerdes receiver of the properties has been severed from that portion of the case being appealed; so those two matters are not before us.

The Bank has brought forward eight points of error. In its points 1,2, 3, 4, 5 and 6 the Bank complains basically that the trial court erred in submitting special issues 4, 5, 6, 7, 8, 9, 13, 14 and 15 because the issues inquire about negligent conduct of the Bank, proximate causes and damages. Those issues were answered favorably to the appellees and pertain to three basic categories: handling of the oil mill property in Taft, Texas; handling of property located in Louisiana; and partitioning assets of the estate. The Bank contends that the will of Casper Gerdes, Jr., expressly provided that the trustee-Bank should not be liable for negligence.

These contentions, therefore, require us to consider the construction and meaning of the subject will and testamentary trust of Gerdes. The general rule of construction for both trusts and wills is to ascertain the intent of the maker. Stewart v. Selder, 473 S.W.2d 3 (Tex.Sup.1971); Ruby v. Green, 535 S.W.2d 385 (Tex.Civ.App. — Corpus Christ! 1976, writ ref’d n. r. e.). But if the language of the instrument is unambiguous and expresses the intention of the maker, it is unnecessary to construe the instrument because it speaks for itself. In such a situation a trustee’s powers are conferred by the instrument and neither the trustee nor the courts can add to or take away from such powers, but must permit it to stand as written and give to it only such construction as the trustor intended. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960); Jackson v. Templin, 66 S.W.2d 666 (Tex.Com.App.1933, jdmt adopted); Sanderson v. First National Bank in Dallas, 446 S.W.2d 720 (Tex.Civ.App. — Dallas 1969, writ ref’d n. r. e.).

The will of Casper Gerdes, Jr., deceased, expressly provided that neither the trustee nor the independent executor should be held liable for any mistake or error of judgment or negligence as follows:

“ARTICLE IY
(A) . . . .
(6) Liability of Trustee No Trustee, Co-Trustee or successor Trustee shall be liable for any mistake or error of judgment or negligence, but shall be liable only for her or its own dishonesty.”
⅜: * * ⅜ * *
“ARTICLE IX
I also direct that during the existence of such Exec-utorship, my Independent Executor shall have and exercise all of the applicable rights, powers and privileges granted in this will to the Trustees of the Trust created herein . . .”

The Texas Trust Act, art. 7425b-21 specifies that a trustee may be held liable for torts that he commits. Article 7425b-22 of the same Act, however, gives the trustor the power to relieve his trustee from any liabilities imposed by the Act by the following provision:

“The trustor of any trust affected by this Act may, by provisions in the instrument creating the trust, or by an amendment of the trust if the trustor reserved the power to amend the trust, relieve his trustee from any or all of the duties, restrictions, and liabilities which would otherwise be imposed upon him by this Act; or alter or deny to his trustee any or all of the privileges and powers conferred upon the trustee by this Act; or add duties, restrictions, liabilities, privileges, or powers to those imposed or granted by this Act; but no act of the trustor shall relieve a corporate trustee from the duties, restrictions, and liabilities imposed upon it by Sections 10, 11, and 12 of this Act.”

Section 10 pertains to loan of trust funds, Section 11 to corporate trustee depositing trust funds with itself, and Section 12 pertains to a trustee buying from or selling to itself, none of which apply to this case.

Thus, by express statutory authorization, a trustor may relieve a corporate trustee of all duties, restrictions, and liabilities imposed by law except for the three instances set out, which are not applicable here. In view of this authorization we find the unambiguous provisions of the deceased’s will controlling and the trial court in error for submitting to the jury the issues based on negligence and for rendering judgment based on the answers thereof. See 83 A.L.R. 616 et seq. (1933). We note also that Mrs. Gerdes testified that she did not claim the bank was dishonest, only negligent.

Appellees assert that an exculpatory clause like the one in the Gerdes’ will is void as against public policy and they cite Lang-ford v. Shamburger, 417 S.W.2d 438 (Tex.Civ.App. — Fort Worth 1967, writ ref’d n. r. e.). In Langford, the beneficiaries sued the trustee for interest on trust funds not invested, for commingling of trust funds, and for profits through self-dealings. The trustee asserted as one defense to these actions the following exculpatory clause.

“No trustee shall ever be liable for any act of omission or commission unless such act is the result of gross negligence or of bad faith.or of the trustee’s own defalcation, and no trustee shall ever be liable individually for any obligation of the trust.”

The court held that this language could not excuse the trustee for the “misapplication or mishandling” of trust funds. In a written opinion denying appellee’s motion for rehearing the court explained this statement as follows:

“Appellee again directs our attention to the exculpatory language of the trust instrument which relieves a trustee from liability except for gross negligence. Ap-pellee contends that we have in effect held that such exculpatory language is unlawful, thus going contrary to the great weight of authority in this State which has upheld similar exculpatory language in other trust instruments. Our holding is not so broad and should not be so construed. What we have held is that the exculpatory language in the trust instrument here under consideration does not authorize self-dealing by a trustee. In view of the language of Section ,10 of the Texas Trust Act, Article 7425b, we further express the opinion that the language of a trust instrument which specifically authorizes self-dealing by a trustee could present a serious question of public policy.” (Emphasis supplied).

It is clear, therefore, that the public policy prohibition is limited to exculpatory clauses which authorize self-dealing, which is not in our case. The appellant’s points 1, 2, 3, 4, 5, and 6 are sustained.

. In appellant’s final points it alleges that the trial court erred: 7) in failing to rule on the Bank’s request for additional compensation as trustee under the will and as authorized by such will; and 8) in failing to rule that the Bank recover its attorneys’ fees, as authorized by the will, and in submitting such issue to the jury. Even if we accept appellant’s version of the provisions of the will that the trial judge should decide matters of additional trustee compensation and attorney’s fees, we still must hold that its contentions are without merit, as we will demonstrate. We pause to note that appellant is not here challenging the jury findings on grounds of legal or factual insufficiency of the evidence.

The facts in that regard are these. At the preparation of the charge stage of the trial, the appellant requested, and was granted, issues which were submitted to the jury on the matters of the trustee compensation and attorneys’ fees. The jury responded with answers unfavorable to the Bank. Then in its judgment, based on the jury verdict, the trial court provided that the Bank recover nothing on its claims for additional trustee compensation and attorneys’ fees.

The law in that respect is that error in submitting a special issue cannot be urged by a party who requested the submission. Or, in other words, as was done here, a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (Tex.Com.App.1942, opinion adopted); Bales v. Delhi-Taylor Oil Corporation, 362 S.W.2d 388 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.); 4 Tex. Jur.2d, Rev. Part 2, Appeal and Error, Civil Cases 691 (1974). Appellant’s points 7 and 8 are overruled.

All of which brings us to a consideration of appellees’ cross-points, seven in number. Appellees’ cross-points 1, 2, 3, 4 and 7 are complaints about damages: 1) and 2) inadequate; 3), 4) and 7) none. The brief and appropriate answer to those contentions is that because we have held in the forepart of this opinion that there is no basis for a judgment in favor of the appel-lees in the jury verdict, any asserted error by the appellees about damages becomes immaterial. In other words, if there is no basis for liability, then damage issues become immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (Tex.Com.App.1939, opinion adopted); Barkley v. Dudley, 495 S.W.2d 280 (Tex.Civ.App.Houston [1st Dist.] 1973, writ ref’d n. r. e.). Appellees’ points 1, 2, 3, 4, and 7 are overruled.

Finally, in their cross-points 5 and 6, the appellees urge error by the trial court’s failure to submit special issues and an instruction on gross negligence on the part of the Bank. Because we have held above that the appellees are not entitled to any actual or compensatory damages, there can be no recovery for exemplary damages. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Sandone v. Dallas Osteopathic Hospital, 331 S.W.2d 476 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.). The asserted errors concerning exemplary damages therefore become immaterial. Bifano v. Econo Builders, Inc., 401 S.W.2d 670 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.); 17 Tex.Jur.2d Damages § 177 (1960). Appellees’ points 5 and 6 are overruled.

Therefore, that part of the trial court’s judgment adjudging recovery by the appel-lees against the appellant is reversed and here rendered that the appellees take nothing on their cross-action. The trial court’s judgment is in all other respects affirmed. Costs are taxed two-thirds to the appellees and one-third to the appellant.


author: JAMES, Justice.

text:
    Doyle REAGAN et ux., Appellants, v. Emil E. KMIEC, Appellee.
    No. 5671.
    Court of Civil Appeals of Texas, Waco.
    May 12, 1977.
    Rehearing Denied June 2, 1977.

      John B. Faulkner, Waco, for appellants.
    Mac Gann, Miller, Gann & Perdue, Houston, Don E. Harris, Harris & Norman, Franklin, for appellee.
   OPINION

JAMES, Justice.

This is a suit for specific performance of an option contract to convey land. After trial by jury, the trial court entered judgment compelling specific performance, from which Defendant-Appellants appeal, asserting among other things the legal insufficiency of the property description contained in said option contract. We hold that the property description is legally insufficient under the Statute of Frauds, and thereby reverse and render.

Plaintiff-Appellee Emil E. Kmiec brought this suit against Defendant-Appellants Doyle Reagan and wife Frances Reagan for specific performance of an option to purchase 493.5 acres of land located in Robertson County, Texas, which option was contained in a contract of sale of 300 acres of land from the Reagans to Kmiec. The sale of the 300 acres was closed on April 24, 1970, and according to the contract Kmiec had the option to purchase the 493.5 acres by exercising same between January 2,1971 and April 24, 1971.

On January 27, 1971, Kmiec wrote the Reagans that he wished to exercise the option to purchase the 493.5 acres. On January 30, 1971, the Reagans wrote to Kmiec disavowing the option. Then on March 30, 1971, the Reagans through their attorney wrote to Kmiec’s attorney advising him that they wished to proceed with the sale of the land and requested appellee- Kmiec to proceed “at the earliest possible date.” To this Kmiec made no reply, and on May 13, 1971, the Reagans through their lawyer wrote a letter to Kmiec and again notified him of their willingness to proceed with the sale promptly and requested being advised if Kmiec did not intend to complete the sale. To this last letter Kmiec made no response. Shortly after the letter of May 13, 1971, Mrs. Reagan called Kmiec on the telephone, in which conversation Kmiec in effect stated he had his funds tied up but might go ahead anyway. Thereafter, Kmiec did not reply or otherwise contact the Reagans about closing the sale until January 21, 1974, when he filed the instant lawsuit against them for specific performance.

Trial was had to a jury which found: (1) On or about January 27, 1971, Plaintiff-Ap-pellee Kmiec attempted to exercise the option to purchase the land; (2) The Reagans refused to permit Kmiec to exercise such option; (3) The jury failed to find that Kmiec through his failure to act between January 27, 1971 until January 21, 1974, waived his right to enforce the option in question.

Pursuant to the jury verdict the trial court entered judgment in favor of Plaintiff-Appellee Kmiec decreeing specific performance, ordering the Defendant-Appellants Reagans to convey the 493.5 acres of land to Kmiec at a price of $200.00 per acre in accordance with the provisions and conditions of the contract.

As stated, Defendant-Appellants assert the unenforceability of the contract on the ground that the legal description of the subject property is “so uncertain, incomplete and indefinite” that it violates the Statute of Frauds, Section 26.01, Texas Business and Commerce Code. We sustain this contention and thereby reverse the trial court’s judgment and render judgment that Plaintiff-Appellee Kmiec take nothing.

The written agreement between the parties consisted of two written instruments, to wit, the original contract dated January 26, 1970, and an “addendum” instrument dated February 6, 1970.

Without detailing the provisions of the original contract, it provides in effect that the Reagans shall convey to Kmiec and one Brounkowski (who later assigned his interest to Kmiec) 300 acres of land for $235.00 per acre, said 300 acres being described as follows:

“Being situated in Robertson County, Texas, and estimated to contain approximately 300 acres of land, more or less, situated in the Marquez 11 Leagues, Abst. No. 25, of said County and State, said premises being further described as all of the Doyle D. Reagan land situated and located within Sections Number 23 and 32 of said Marquez 11 Leagues, said premises being located north of a graveled County Road which intersects with State Highway Number Seven (7).”

Now, in addition thereto, the original contract provided that Buyers Kmiec and Brounkowski had the option to purchase an additional 493.5 acres of land under conditions set out therein, said 493.5 acres being described in said original contract as follows:

“It is understood and agreed that Sellers also own other lands in said Marquez 11 Leagues Grant in Robertson County, Texas, the same lying south of and across said gravel County Road from the premises above described, said premises being described as containing 493.5 acres of land, more or less, being 150 acres of land, more or less, lying in the southeast corner of Section Number 31 of said 11 Leagues; 168.25 acres of land, more or less, and 168.-25 acres of land, more or less, situated in the northeast and southeast corners of Section Number 42 of said 11 Leagues; and a tract of approximately seven (7) acres lying adjacent to said County Road between Steel’s Creek and the west boundary line of Section Number 32 of said 11 Leagues.”

The written addendum instrument executed by the parties bearing date of February 6, 1970, listed four encumbrances “on the aforesaid property,” one being a Mineral Deed recorded in volume 106, page 214, Deed Records of Robertson County, Texas; another Mineral Deed recorded in volume 106, page 216, Deed Records of Robertson County, Texas; an Easement and Right of Way recorded in volume 193, page 184, Deed Records of Robertson County, Texas; and an Oil, Gas, and Mineral Lease recorded in volume 217, page 639 of the Oil Lease Records of Robertson County, Texas. Appellee contends that this description in the addendum is an aid to the property description in the option contract. We do not agree.

The four instruments shown in the addendum as encumbrances on the subject land were described therein by listing the names of the parties, the respective dates, and the volume and page references in the County Deed Records of each such instrument. In other words, there are no field notes or metes and bounds descriptions contained in the addendum, and none of the four instruments referred to therein are in the record before us. Therefore, the addendum is of no help in furnishing a legally sufficient property description of the 493.5 acres. See Morrow v. Shotwell (Tex.1972), 477 S.W.2d 538 at page 541.

As stated above the sale of the 300 acres was completed from the Reagans to Kmiec as contemplated by the contract, and no problem is presented from this aspect of the contract. It is the sufficiency of the property description of the 493.5 acres which is the subject matter of the option contract that is before us.

The rule by which to test the sufficiency of the property description is well settled and has been stated by our Supreme Court as follows: To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. U.S. Enterprises, Inc. v. Dauley, (Tex.1976), 535 S.W.2d 623, 627; Williams v. Ellison (Tex.1973), 493 S.W.2d 734, 736; Wilson v. Fisher (1945), 144 Tex. 53, 188 S.W.2d 150.

The quoted description of the 493.5 acres does not refer to any other existing writing; therefore our problem is to analyze the description in the contract to see if it furnishes, within itself, the means or data by which the property may be identified with reasonable certainty.

We know from the above-quoted description in the contract that the 493.5 acres is south of and across the gravel County Road from the 300 acres, that it is owned by the Reagans, and consists of “150 acres, more or less, lying in the southeast corner of Section 31” of the Marquez Leagues Grant in Robertson County, a 168.25 acres more or less out of the northeast corner of Section 42 of said Grant, and another 168.25 acres more or less out of the southeast corner of Section 42, and a “tract of approximately seven (7) acres lying adjacent to said County Road between Steel’s Creek and the west boundary line of Section 32” of said Grant.

Let us examine first the description of the seven acre tract. First it is “adjacent” to the County Road. This does not fix any location with reference to the County Road. “Adjacent” is defined as “lying near, close, or contiguous; neighboring; bordering on; as a field adjacent to the highway.” The word “adjacent” is further explained: “objects are adjacent when they lie close to each other, but not necessarily in actual contact.” Webster’s New International Dictionary, Second Addition. The description further recites that the seven acre tract is between Steel’s Creek and the west boundary line of Section 32. Here we have no beginning point, no courses or distances by which to fix the location of said tract. Indeed, Plaintiff-Appellee introduced into evidence a title commitment over Appellant’s objection which recited that the seven acre tract could not be located. In this connection, our Supreme Court in U.S. Enterprises, Inc. v. Dauley (Tex.1976), 535 S.W.2d 623 had this to say at page 628: “Descriptions without boundary lines, beginning points, or other means by which the acreage can be located have often been held to be insufficient to meet the Statute of Frauds, (cases cited).” The description of the seven acre tract is legally insufficient, and we so hold.

We know from the description in the option contract that the 150 acres lies in the southeast corner of Section 31, but we have no clue as to the size, shape, measurements or location of said tract. It is physically possible insofar as the description shows, that there could be two or more 150 acre tracts owned by the Reagans lying in the southeast corner of Section 31, so long as each such tract cornered at the southeast corner of Section 31. The same problem of description exists insofar as the 168.25 acre tract situated in the northeast corner of Section 42, and the other 168.25 acre tract situated in the southeast corner of Section 42. For each of these three tracts we have a beginning point, but we have no metes and bounds description for any of said tracts, nor do we have any means or data in the description to ascertain the courses and distances which would fix the boundaries of said tracts.

No existing writing, map, plat or other means of identification are referred to in the option agreement. Appellee called an abstract company employee as a witness in an attempt to enlarge the description and introduced into evidence a plat over Appellants’ objection. Since the plat is not in any way referred to in the option contract, the deficiency of the description could not be supplied or aided by the plat. Matney v. Odom (1948), 147 Tex. 26, 210 S.W.2d 980.

The same rationale applies to the title commitment hereinabove referred to, introduced into evidence by the Appellee over Appellants’ objection, which contained a metes and bounds description of the 150 acre tract and the two 168.25 acre tracts. The title commitment was not an “existing writing” at the time the option contract was executed, and is not referred to in any way in the option contract. The use of the plat and title commitment to aid the description is an attempt to locate the land by extrinsic evidence, and was prohibited in Matney v. Odom, supra. Also see U.S. Enterprises v. Dauley, supra, in this regard.

In summary, neither the option contract nor any evidence presented at the trial supply the means or data by which the land may be located with reasonable certainty without resort to extrinsic evidence prohibited by the Statute of Frauds.

As we understand it, Appellee contends that since the Reagans and Kmiec all understood and knew which land they were talking about in the option contract, that this should cause the description to be sufficient, and the contract was thereby removed from the bar of the Statute of Frauds. We do not agree. The fact that the identity of the land was clear in the minds of the parties requires resort to extrinsic evidence which is prohibited by the statute. The intention must be derived from the terms of the instrument itself. Matney v. Odom, supra; Rowson v. Rowson (1955), 154 Tex. 216, 275 S.W.2d 468; Shelton v. Allen (Waco CA 1966), 407 S.W.2d 832, NRE.

For all the foregoing reasons, we hold the property description set but in the option contract and the addendum to be legally insufficient to meet the Statute of Frauds, and thereby reverse the trial court’s judgment and render judgment that the Plaintiff-Appellee Kmiec take nothing.

REVERSED and RENDERED.


author: RAY, Justice.

text:
    Tom SADLER, d/b/a Standard Builders Supply, Appellant, v. Jim DUNCAN et ux., Appellees.
    No. 77-78.
    Court of Civil Appeals of Texas, Texarkana.
    May 17, 1977.
    Robert Rolston, Russell & Rolston, Mount Pleasant, for appellant.
    B. Reagan McLemore, III, Longview, for appellees.
   RAY, Justice.

This is a venue case. Jim Duncan and wife, Barbara Abdnor Duncan, appellees (plaintiffs), brought suit against Tom Sa-dler, d/b/a Standard Builders Supply, appellant (defendant), alleging fraud and violations of the Texas Business and Commerce Code. Appellant Sadler filed his plea of privilege requesting the case to be transferred to Gregg County. Appellees filed their controverting affidavit after which the trial court entered its order overruling the plea of privilege on December 30, 1976. The cost bond on appeal was filed with the District Clerk on January 28, 1977.

On March 4, 1977, appellant tendered to the Clerk of this Court the transcript for filing. Appellees then filed a “Motion To Affirm Or Dismiss For Late Filing Of Transcript.’’

Rule 385, Tex.R.Civ.P., concerns appeals from interlocutory orders and provides that an appeal or supersedeas bond must be filed within twenty (20) days after rendition of the order appealed from and the record must be filed in the appellate court within twenty (20) days after rendition of the order appealed from unless a motion is filed in the appellate court within such twenty day period, or within five (5) days thereafter, seeking an extension of time in which to file the record.

In the present case, the cost bond on appeal was filed twenty-nine (29) days after the order overruling the plea of privilege. This Court stated in M. C. Winters, Inc. v. Cope, 467 S.W.2d 224 (Tex.Civ.App. Texarkana 1971, no writ), that the filing of the appeal bond within twenty (20) days is mandatory and jurisdictional and the failure to timely file the bond is fatal to the appeal.

In the instant case the transcript was tendered for filing in this Court on March 4, 1977, a period much longer than twenty (20) days after the order overruling the plea of privilege. No motion for extension of time within which to file the transcript has ever been submitted to this Court by appellant.

Since appellant failed to timely file his cost bond and failed to timely file the record on appeal, no appeal has been perfected to this Court. Appellees’ motion to affirm on certificate is denied, but their motion to dismiss for want of jurisdiction is granted. Cattle Land Oil Co. v. Willis Drilling Company, Inc., 509 S.W.2d 383 (Tex.Civ.App. Corpus Christi 1974, no writ); Winters v. Cope, supra; Skidmore v. Bybee, 405 S.W.2d 447 (Tex.Civ.App. Texarkana 1966, no writ).

It is accordingly ORDERED that this case be dismissed for want of jurisdiction.


author: O’QUINN, Justice.

text:
    UNITED STATES READING LAB, INC., Appellant, v. Dr. M. L. BROCKETTE, Commissioner of Education of Texas, et al., Appellees.
    No. 12551.
    Court of Civil Appeals of Texas, Austin.
    May 18, 1977.
    Rehearing Denied June 8, 1977.

      Adrian M. Overstreet, Jr., Kammerman, Yeakel, Trickey & Overstreet, Austin, for appellant.
    John L. Hill, Atty. Gen., Anthony J. Sad-berry, Asst. Atty. Gen., Austin, for appel-lees.
   O’QUINN, Justice.

The Commissioner of Education, in behalf of the State of Texas, acting through the Attorney General, brought this lawsuit to enjoin United States Reading Lab, Inc., from pursuing certain practices alleged to be deceptive and from conducting business in Texas without obtaining a certificate of approval under provisions of the Texas Proprietary School Act.

The State proceeded in this lawsuit under provisions of Section 17.47, Texas Business and Commerce Code, authorizing the Attorney General to bring an action to restrain persons or firms from engaging in acts or practices declared to be unlawful under the Deceptive Trade Practices-Consumer Protection Act of 1973, (Acts 1973, 63rd Leg., p. 322, ch. 143, eff. May 21, 1973), and also sought to enjoin appellant from operating a proprietary school without a certificate of approval as defined by Section 32.11(1)(A), (B) of the Texas Education Code, an operation made illegal by Section 32.61(a)(1) of the Code. (Acts 1973, 63rd Leg., pp. 1267, ch. 463, eff. June 14, 1973).

The United States Reading Lab, Inc., answered by a general denial and the further allegation that “. . . Chapter 32 of the Texas Education Code on which this suit is based is an unconstitutional infringement on the First Amendment right of free speech guaranteed by the United States Constitution.”

The record shows that the trial court on September 22, 1976, entered an order of temporary injunction, restraining the corporation from specified activities alleged by the State to be deceptive and misleading, and further from soliciting or enrolling students in its school until the corporation “has been issued a Certificate of Approval . by the Administrator of the Proprietary School Act.”

On the same day, the trial court also entered judgment by which appellant was “permanently enjoined from” the activities alleged by the State to be deceptive, including representing to prospective students that the corporation “is legally authorized to conduct business within the State[,] . until such time as . [appellant] has registered with the Secretary of State . . .”

The judgment further required appellant to provide a list of students already registered to take instruction offered by appellant, and to refund tuition money upon request of any student, subject to bond required in the amount of $25,000. The trial court allowed supersedeas bond in the amount of $10,000 on the same date.

The corporation appealed and brings two points of error. Under the first point appellant insists that “. . . Section 32 of the Texas Education Code is an unconstitutional infringement on the rights of free speech and individual liberty guaranteed by the United States Constitution.” The second point urges that “. . . Section 32 . . .is inherantly [sic] unequal in its application to those schools to which it is sought to be applied and therefore constitutes an unlawful or unauthorized delegation of legislative authority.”

We will overrule both points of error and affirm judgment of the trial court.

United States Reading Lab pleaded only that Section 32 of the Code was and is an “unconstitutional infringement on the First Amendment right of free speech . . . ” No other claim attacking constitutionality of the statute was pleaded by appellant as an affirmative defense.

Although Rule 94, Texas Rules of Civil Procedure, enumerates at least nineteen specified defenses which must be affirmatively pleaded, the Rule also includes “any other matter constituting an avoidance or affirmative defense.” Avoidance on the basis of a statute being unconstitutional falls within the defenses required to be pleaded affirmatively. University of Texas System v. Robert E. McKee, Inc., 521 S.W.2d 944, 948 (Tex.Civ.App.Eastland 1975, writ ref’d n.r.e.); City of South Houston v. Sears, 488 S.W.2d 169, 174 (Tex.Civ.App.Houston [14th Dist.] 1972, no writ). See also State v. Scott, 460 S.W.2d 103, 107 (Tex.Sup.1970), cert. denied, 402 U.S. 1012, 91 S.Ct. 2188, 29 L.Ed.2d 435 (1971).

Appellant’s second point of error in which it claims the statute is inherently unequal in its application to proprietary schools “. . . and therefore . an unlawful or unauthorized delegation of legislative authority” was not pleaded by appellant and will not be considered on appeal.

Under the first point, as already noted, appellant urges that the statute infringes on rights of free speech guaranteed under the First Amendment to the Constitution of the United States.

The record does not include a statement of facts, except brief matters stipulated in open court on the morning of September 22, 1976, the day the trial court entered the orders heretofore described.

The stipulations are that (1) appellant designed a curriculum entitled “Rapid Reading” and claims it “teaches people to read rapidly”; (2) testimony if offered in behalf of appellant would be that from its records “the course is successful”; (3) appellant designed the curriculum and believes it effective; and (4) appellant solicited funds in Austin and Lubbock for a course costing “$219.00 for adults and $199.00 for students,” and the fee covers four three-hour lectures “as well as some home study in preparation for the lectures.”

Beyond the stipulations, this Court has no record of effort on the part of United States Reading Lab to bear the burden of showing that the Proprietary School Act denies appellant the right of free speech guaranteed under the First Amendment.

It is a rule well established that legislative enactments will not be held unconstitutional and invalid unless there exists an absolute necessity to hold the statute void because in contravention of a guarantee afforded by the Constitution. Smith v. Patterson, 111 Tex. 535, 242 S.W. 749, 750 (1922); Texas State Board of Barber Examiners v. Beaumont Barber College, 454 S.W.2d 729, 732 (Tex.Sup.1970). The burden is upon the party attacking a law for infringement upon a right under the Constitution, “. . . and [the] courts need not exert their ingenuity to find reasons for holding the law invalid.” Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939); Texas State Board of Barber Examiners v. Beaumont Barber College, supra.

We conclude that the record before this Court fails to establish the invalidity of the statutory requirements under attack because of infringement upon appellant’s right of free speech, nor does the record tend to overcome the presumption of validity which attaches to legislative acts in an exercise of power to provide regulations having reasonable relationship to the public health, comfort, safety or welfare of the public. The Legislature, in adopting the Texas Proprietary School Act, declared that its aim “is to provide certification and regulation of proprietary schools in Texas.” Appellant has failed to demonstrate in what manner provisions of the statute violate its right of free speech.

The judgment of the trial court is affirmed.


text:
    EMPLOYEES RETIREMENT SYSTEM of Texas, Respondent, v. W. T. McDONALD, Petitioner.
    No. 12562.
    Court of Civil Appeals of Texas, Austin.
    May 18, 1977.
    Rehearing Denied June 8, 1977.
    John L. Hill, Atty. Gen. of Texas, John Reeves, Asst. Atty. Gen., Austin, for respondent.
    Bob Kuhn, Kuhn, Collins & Rash, Austin, for petitioner.
   O’QUINN, Justice.

W. T. McDonald filed application for writ of mandamus in district court of Travis County in August of 1976, seeking to compel the Employees Retirement System of Texas to accept petitioner’s tender of $9,668 as full payment of contributions to establish his eligibility for retirement benefits from “prior public service” not related to his service as a member of the judiciary, from which he was certified as a retired member in September of 1973.

The Employees Retirement System answered by pleas to the jurisdiction and in abatement, grounded principally upon failure of petitioner to exhaust administrative remedies before the Board of Trustees of the Employees Retirement System of Texas having charge of general administration by direction of the Constitution of Texas.

The trial court in October of 1976, after hearing, ordered that writ of mandamus issue directing the Employees Retirement System to accept $9,236 out of Petitioner’s tender of $9,668 as full payment for all contributions to establish his eligibility to receive retirement benefits based upon pri- or service of eight years in the Texas Legislature under provisions of Article 6228i as amended.

The Employees Retirement System, by pleadings and contentions below and on appeal, maintains that petitioner is not qualified to proceed under provisions of Article 6228i, Vernon’s Anno.Civ.Sts., to establish eligibility for service in the Legislature occurring before petitioner’s retirement from the judiciary. The System insists that Article 6228a(3)(E) is the applicable statute by which petitioner’s eligibility must be established.

In his original application, petitioner alleged tender of $9,884 as payment to establish prior legislative service, service with Texas A & M University, and service with the Texas Relief Commission. Although the record does not reflect an amendment filed to abandon some of the enumerated services, petitioner on appeal states by brief that he amended the application before trial to seek establishment as prior service “only his eight years of legislative service.” The record reflects that the trial court specified in its judgment prior service only for “eight years in the Texas Legislature.” Without objection by the Employees Retirement System in denial of petitioner’s statement as to amendment, we receive it as true.

The Retirement System on appeal brings seven points of error. Under the first and third points, the System contends that since there are disputed. questions of fact and because petitioner below failed to avail himself of administrative remedies, writ of mandamus is not available. We will sustain these points, bearing upon jurisdiction, and will not reach the remaining points. The order of the trial court will be set aside, and the application for writ of mandamus will be dismissed.

Petitioner below brought this action for writ of mandamus only, and no remedy is sought to resolve differences between petitioner and the Retirement System as to which statute properly accords petitioner a right to his claim. Petitioner asked the Court to compel an official act, and to adjudicate which statute would control and which party was right under the disputed facts. We conclude that a classic case of unavailability of mandamus is presented.

The Supreme Court in 1939 adopted language of a recognized legal writer on extraordinary legal remedies who stated, “The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must first be established in some other form of action. Mandamus will not lie to establish as well as enforce a claim of uncertain merit.” Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939).

It is settled that mandamus will lie when the duty to act is clear and there is no dispute of fact. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 602 (Tex.1975); Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887, 895 (Tex.1968); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148, 150 (1952); Wortham v. Walker, supra.

Prior to the filing of this action, when petitioner was bringing to the attention of the Retirement System his claims, for retirement benefits for services other than in the judiciary, administrators within the System assumed certain facts based upon payroll records independently investigated, and relying on the assumptions, called upon petitioner to pay the lump sum of $23,962.40. Petitioner disagreed with these assumptions and refused to tender the amount requested. It appears that petitioner relied on a procedure under one statute, and the Retirement System insisted a different statute was applicable, as pointed out earlier. Without pursuing further administrative remedies to adjust differences as to amounts of contributions and applicability of procedures, petitioner filed his application for writ of mandamus. The trial court sought to adjudicate which statute was controlling and to adjust the amount of petitioner’s tender, with orders that the difference be refunded to petitioner by the Retirement System.

The Retirement System urges that judicial control of the administrative action should await an administrative hearing, instituted pursuant to provisions of Article 6252-13a of the Administrative Procedure and Texas Register Act (Acts 1975, 64th Leg., p. 136, ch. 61, eff. Jan. 1, 1976). Under this Act provision is made that: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by statute.” Sec. 19, Art. 6252-13a.

Administration and responsibility for operation of the Retirement System of Texas are placed in the State Board of Trustees (Art. 6228a, sec. 6(A), Acts 1969, 61st Leg., p. 2433, ch. 814, eff. Sept. 1, 1969), and the Board is authorized to establish rules and regulations for eligibility and for administration of funds and for transaction of its business. Section 6A(6). The Retirement System points to rules and regulations promulgated by the Board of Trustees prescribing administrative remedies which were not pursued by petitioner. (Rule 335.-10.00.106).

Under a rule well established, mandamus will not lie where the petitioner has another clear and effective remedy, adequate to obtain the relief to which he may be entitled. Manion v. Lockhart, 131 Tex. 175, 114 S.W.2d 216, 219 (1938); Lovell v. Bynum, 315 S.W.2d 20, 22 (Tex.Civ.App.Austin 1958, writ ref’d n. r. e.). The other remedy must be complete and effective, and the right of appeal within the administrative agency is recognized as an adequate remedy. Arnold v. City of Sherman, 244 S.W.2d 880, 883 (Tex.Civ.App. Dallas 1951, writ ref’d); Shield v. State, 428 S.W.2d 684, 690 (Tex.Civ.App. Austin 1968, writ ref’d n. r. e.).

As observed earlier, this suit was brought for mandamus orders alone and no other adjudication by the courts has been sought. Until the administrative remedies are exhausted, the disputed claims and rights are not so clear as to warrant issuance of a writ of mandamus. The judiciary is without power to issue advisory opinions. Article II, section 1, Constitution of Texas. To treat the judgment of the trial court as declaratory on construction of Articles 6228a and 6228i, the judgment becomes settlement of a contested matter between petitioner below and the Retirement System. Article 6252-13a must first be complied with to allow the Retirement System to receive and consider all evidence essential to make a final decision, by which the System has opportunity to discover and correct any errors that may have been committed. Texas Air Control Board v. Travis County, 502 S.W.2d 213, 215-16 (Tex.Civ.App. Austin 1973, no writ).

The judgment of the trial court is reversed. The petition for writ of mandamus is dismissed, without prejudice to right of petitioner below to seek, by hearing and appeal within the administrative structure of the Employees Retirement System of Texas to establish his right to retirement benefits for service in the Legislature.

Reversed and Petition for Writ of Mandamus Dismissed.


author: STEPHENSON, Justice.

text:
    CITY OF MIDDLESBORO PLANNING COMMISSION, City of Middlesboro, City of Middlesboro Board of Adjustment and Harvey Yeary, Appellants, v. Henry Clay HOWARD and James W. Howard, d/b/a Howard & Howard Trucking, Appellees.
    Supreme Court of Kentucky.
    May, 20, 1977.
    William A. Watson, Watson & Watson, Middlesboro, for appellants.
    Joe Nagle, Denham & Nagle, Middles-boro, for appellees.
   STEPHENSON, Justice.

The issue on this appeal is the validity of a city of Middlesboro zoning ordinance. Section 75.25(C) of the ordinance provides:

“(C) Termination:
“Any one of the following acts or conditions shall terminate immediately the right to operate a nonconforming use:
(1) Changing to a conforming use.
(2) Abandonment.
(3) Failure to obtain privilege license for a period of twelve months.
(4) Non-operation or non-use for a period of twelve or more consecutive calendar months.”

In 1966, the city of Middlesboro enacted an ordinance providing for “Privilege Licenses” applicable to businesses and occupations within the city in varying amounts to be paid annually to the city.

The appellees, James and Henry Clay Howard, have operated a trucking business in what was formerly a small service station in a residential neighborhood in Mid-dlesboro since 1957. In connection with their business, they service and repair the trucks at this location. The Howards did not purchase a privilege license in 1966, the fee for their business being $25 annually. The penalty provision of the ordinance provides for a penalty of 10% of the delinquent fee and a fine. In 1967, the city attorney issued a written opinion stating that the Howards’ business use of the premises was a nonconforming use of this property under the zoning code of the city and concluded that they were “in violation of this particular ordinance one year after the enactment thereof, having failed to purchase a privilege license.” Pursuant to the city attorney’s recommendation that the nonconforming use of the premises be terminated, an administrative officer swore out a complaint and warrants were issued against the Howards for violation of the zoning laws. The Howards sought a hearing before the Board of Zoning Adjustment which sustained the administrative officer’s position and ruled that the right to operate the nonconforming use terminated one year after enactment of the ordinance for failure to secure a privilege license during the twelve-month period. The Howards then appealed to the Bell Circuit Court. The Bell Circuit Court held that failure to obtain a privilege license for a period of twelve months does not absolutely preclude the retention of a nonconforming use, and ordered the city to permit the Howards to continue to operate their business as a nonconforming use.

The privilege license, subject of one of the termination provisions of the zoning ordinance, is a revenue measure for the city. It is not contended otherwise on this appeal. The penalty the city seeks to impose on the Howards for a violation of this section is to deprive them of a vested property right in the nonconforming use. The ordinary penalty for violation by others is provided as 10% of the delinquent fee and a fine.

We are of the opinion that violation of a revenue producing ordinance is not sufficient in itself to forfeit a nonconforming use.

Here, there is no suggestion of an intention on the part of the Howards to abandon the nonconforming use or to change the use in any respect.

This termination provision of the zoning ordinance as to the privilege license does not bear a reasonable relationship to the purpose of terminating nonconforming use when it is no longer necessary to safeguard the property right of the owner. See Smith v. Howard, Ky., 407 S.W.2d 139 (1966), where it was held that the owner did not forfeit his right to continue a nonconforming use by his inability to lease the property for one year. See also Gates v. Jarvis, Cornette & Payton, Ky., 465 S.W.2d 278 (1971), where this court said whether or not the property owner had a permit from the health department was not a matter of zoning concern.

Further, we are of the opinion that the penalty sought to be imposed on the Howards is so disparate to the ordinary penalty provided in the ordinance so as to render it void as discriminatory and arbitrary.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    Joseph Henry BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied July 1, 1977.

      Jack Emory Farley, Public Defender, Anna H. Isaacs, Larry H. Marshall and Kevin M. McNally, Asst. Public Defenders, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

The appellant, Joseph Henry Brown, was found guilty under two counts of an indictment charging him with attempted robbery, KRS 506.010, 515.020, and being a persistent felony offender, KRS 532.080. He appeals from a judgment sentencing him to 20 years’ imprisonment in accordance with the persistent-offender verdict. KRS 532.-080(4)(c).

A bifurcated trial was held before the same jury pursuant to KRS 532.080(1), which provides that when a defendant is charged with being a persistent felony offender “the determination of whether or not he is such an offender and the punishment to be imposed . . . shall be determined in a separate proceeding from that proceeding which resulted in his last conviction. Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense unless the court for good cause discharges that jury and impanels a new jury for that purpose.”

The most serious contention made in support of a reversal is that the trial court erred in refusing to order separate juries for the two phases of the trial. The appellant argues also that it was error to permit (1) an in-court identification by a witness who before the trial had been shown a photograph of the appellant, and (2) the introduction of an indictment or indictments in connection with his previous felony convictions. We shall discuss the latter two points first.

The witness Tandra Robinson, a 16-year-old girl, did not come forward as a witness until the day before the trial, when on her own initiative she visited the office of the Commonwealth’s Attorney and reported that she had seen the incident in question from across the street. Having identified the appellant on direct examination, she admitted under cross-examination that she had never seen him before the occasion of the crime and that the prosecutor had shown her a photograph of him. Asked whether she would have “known that was Mr. Brown out there that night” if she had not seen the picture, she replied as follows:

A—“You really can’t tell pictures anyway. People change.”
Q—“If you hadn’t seen the picture, could you tell whether this was the man the same man that was out there on the 16th?”
A—“Yeah, I know he’s the same man as the man I seen.”

The victim of the crime knew the appellant and had identified him positively and convincingly. It is doubtful that Tan-dra’s evidence added anything, but even assuming that it did, and assuming for purposes of the argument that it should have been excluded, there can be no reversible error here for the simple reason that there was no objection to it in any form at any time during the trial proceeding.

In the argument of this and other recent criminal appeals we detect what appears to be a failure to appreciate the importance of and necessity for procedural regularity in the conduct of trials. Substantive rights, even of constitutional magnitude, do not transcend procedural rules, because without such rules those rights would smother in chaos and could not survive. There is a simple and easy procedural avenue for the enforcement and protection of every right and principle of substantive law at an appropriate time and point during the course of any litigation, civil or criminal. That is not to say that form may be exalted over substance, because procedural requirements generally do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated. Without them every trial would end in a shipwreck.

We recognize that there are cases in which some grave impropriety in the course or conduct of a trial is so conducive to injustice that procedural blundering must be waved aside. Beyond cavil, this is not one of them.

It was not necessary for the Commonwealth, in the second phase of the trial, to introduce copies of the indictments in question. Again, however, the only specific objection was directed toward an F.B.I. sheet listing a number of charges and convictions, and that objection was sustained. Moreover, even though one of the previous convictions was for detaining a woman against her will, under an indictment charging rape, in view of the fact that one of the other five convictions proved by the Commonwealth was for rape we see no possibility that the appellant really was prejudiced.

Before the case was tried the appellant moved that the two counts of the indictment be severed and tried before different juries. His theory was and is that the right to testify in his own defense in the first stage of the trial would be unconstitutionally diminished by the prospect that if he did so he would be forced to admit (through cross-examination impeaching his credibility as a witness) his previous felony convictions to the same jury that would later try the question of whether those convictions had in fact been adjudged against him. Corollary to this proposition, he contends that if he did have separate juries, admission of the previous convictions elicited from him during the first stage could not be used against him in the second stage because that would effectually violate his 5th Amendment protection against self-incrimination. According to this reasoning, he could appear as a witness for himself in the first stage and admit one or more of the prior convictions, but elect not to testify in the second stage and be at the same time protected against the Commonwealth’s proving its case in the second stage by introducing the information it had drawn from him for impeachment purposes in the first.

Before the advent of the Kentucky Penal Code, which took effect on January 1, 1975, it was customary in the trial of habitual-criminal indictments to introduce the prior convictions in chief, along with the evidence on which the prosecution relied for a conviction on the current or primary charge. This, of course, allowed the jury’s deliberations with respect to the defendant’s guilt or innocence on the primary charge to be influenced by a knowledge of his criminal record. A defendant’s right to testify for himself has always carried the price that if he did so the jury would gain the same knowledge through exercise of the Commonwealth’s right to impeach his credibility, but at least he had the choice. In a habitual-criminal case he had no choice.

More than once the old procedure was attacked as unconstitutional, but it withstood those attacks. See Murray v. Commonwealth, Ky., 474 S.W.2d 359, 360 (1971); and Thomas v. Commonwealth, Ky., 412 S.W.2d 578, 579 (1967), citing the same resuit in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Insofar as we are advised, Spencer has not been overruled, and although we no longer have the old procedure, the point of relevance here is that unless that procedure is currently held unconstitutional, neither can the procedure followed in this case be unconstitutional, because certainly it was more favorable to the defendant than the old one-stage trial would have been.

The obvious purpose of the bifurcated trial in a recidivist prosecution is to shield the defendant from the unfair influence his previous convictions are bound to have on the jury in determining his guilt or innocence of the crime for which he is presently being tried. It is at this first stage that the evil existed, and that is the only evil the statute was designed to eliminate. It was not intended to give him a bonus at the other end. The Hobson’s choice of electing to remain silent or subjecting himself to impeachment remains unchanged. If he elects to testify, what he says can be used against him in the second stage of the trial to the same extent that it can be used against him as an admission in a wholly separate trial for a different offense.

The ultimate logic of the appellant’s argument is that if a defendant elects to testify, and by so doing is forced to admit his prior convictions, this admission can never be used against him in any other proceeding, because it would violate his right to testify in his own behalf. If that were true, then it seems to us that the very right to impeach him also invades that right and, indeed, so does the right to cross-examine him. We do not accede to it. If the defendant in a criminal case wants to be a witness, he just has to do it under the same terms and conditions and undertake the same risks and burdens as any other witness. The Constitution cloaks him in a multitude of special favors and protections, but not yet does it crown him king.

The judgment is affirmed.

All concur.

      . She said the crime took place in the “daytime.” According to the prosecuting witness, it happened between 5:30 and 6:00 P.M. on January 16, 1976, when “it wasn’t fully dark.”

      . Appellant had objected earlier to the introduction of photographs and prison records and, when the Commonwealth had begun to offer its exhibits, defense counsel stated to the court that “we would have a continuing objection to each and every one of these,” but at no time did he express an objection to inclusion of the indictments.

      . Some method in this apparent madness may be divined from the fact that Brown seems to have used different names from time to time, hence it was not a foregone conclusion that the Commonwealth would be able to establish his identity with respect to one or more of the previous convictions.

      . See Dawson v. Cowan, 531 F.2d 1374, 1376-77 (6th Cir.1976).