text:
    In the Matter of R. A. B., a minor, Appellant.
    No. 988.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    See also Tex.Civ.App., 525 S.W.2d 871.

      Phil Harris, Weslaco, for appellant.
    Gordon Young, Asst. Dist. Atty., Juvenile Dept., Edinburg, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal by a male juvenile, who will be 17 years of age on August 17, 1975, from an order revoking probation. The appellant will sometime be referred to as “R.A.B.”, and sometimes as “the juvenile”.

The State of Texas, acting by and through the District Attorney of Hidalgo County, filed a petition in the Juvenile Court of Hidalgo County on November 29, 1973, wherein it was alleged that R.A.B. “is a child whose conduct is delinquent” in that he had theretofore committed two burglaries, two thefts and was knowingly and intentionally in possession of a usable quantity of marijuana consisting of more than two ounces but less than four ounces. The petition was filed in the 93rd District Court of Hidalgo County, Texas, and the case was docketed as “Cause No. 1799-B” in that court. Judge Magus F. Smith was, and is, the regular Judge of the 93rd District Court.

A hearing was had on the petition on July 30, 1974. Following the hearing, judgment was rendered on the same day which declared that R.A.B. “has engaged in delinquent conduct within the meaning of Section 51.03 of the Texas Family Code”. By a separate order, entitled “Order of Disposition”, also rendered on July 30, 1974, and following a separate hearing, it was ordered that R.A.B. be placed on probation for a period of one year. Judge Smith presided at both hearings and signed both orders. R.A.B. did not appeal from either of those orders.

On December 9, 1974, the State filed a motion, entitled “Motion to Modify Disposition”, wherein request was made that R.A.B. be brought before the court to determine whether the court should modify the disposition previously made. A hearing on the motion was held on March 18, 1975, before Judge Joe B. Evins, the regular judge of the 206th District Court of Hidalgo County. At the conclusion of the hearing, Judge Evins announced from the bench that R.A.B. had violated the terms and conditions of the probation. A written judgment was signed and rendered by Judge Evins on March 27, 1975, wherein it was ordered that the prior disposition order placing R.A.B. on probation be modified so as to commit him to the care, custody and control of the Texas Youth Council. A commitment order which ordered R.A.B. committed to the care, custody and control of the Texas Youth Council was also signed by Judge Evins on March 27, 1975.

R.A.B., in point of error 1, complains that the trial court did not notify him or his parent of his right to appeal from the order that declared him to be delinquent, and which was signed and rendered on July 30, 1974. The point cannot be considered by this Court in this appeal.

Point 1 relates only to the adjudication hearing and the orders which were made following that hearing. They are not before this Court in this appeal. We are concerned here only with the hearing that was held on March 18, 1975 on the State’s motion to modify disposition, and the orders which were rendered on March 27, 1975, which revoked probation and committed the juvenile to the care, custody and control of the Texas Youth Council. While there are no juvenile cases on the issue presented by the point, the Texas Court of Criminal Appeals, in cases involving adults, has consistently held that where the defendant fails to appeal from the original judgment which placed him on probation, he may not attack the original conviction for the first time in an appeal from a subsequent order that revokes that probation. See Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1967); Brooks v. State, 459 S.W.2d 640 (Tex.Cr. App.1970); Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955). The rule of those cases applies to the case at bar. Point 1 is overruled.

Points of error 5, 6, 7, and 8 assert error in that the trial court, in both the adjudication hearing on July 30, 1974, and in the hearing on the motion to modify disposition on March 18, 1975, erred in not explaining to the juvenile and his parent: 1) the nature and possible consequences of the proceedings; 2) the allegations made against the child; 3) the privilege against self-incrimination; ' and 4) the juvenile’s right to confrontation of witnesses. None of the points have merit.

As phrased, the points relate to alleged errors that were committed by the trial court on two different occasions and at two different hearings. The points cannot be considered insofar as the adjudication hearing on July 30, 1974, is concerned for the same reason stated in our discussion of point 1.

With respect to the hearing on the motion to modify disposition and the orders which were made and rendered pursuant to that hearing, the record reveals: R.A.B. was represented by counsel; prior to the introduction of any evidence, the comments made by Judge Evins in response to questions raised by counsel for both the State and for the juvenile, fully apprised R.A.B. and his parent of the nature and possible consequences of the proceeding, and of the allegations made against the child; R.A.B. did not testify at the hearings, consequently there is no basis for the complaints concerning “self-incrimination”; counsel for R.A.B. cross-examined the State’s witnesses in great detail, and the juvenile was accorded the right of confrontation of witnesses. Points 5, 6, 7, and 8 are overruled.

The juvenile, in point 2, contends that neither Judge Evins nor the 206th District Court of Hidalgo County have jurisdiction over him or Cause No. 1799-B, and that the order which, in effect, revoked his probation, rendered on March 27, 1975, is void. We do not agree.

Under the Texas Family Code Ann., V.T.C.A. (1974), all procedures concerning

juveniles are controlled by the provisions of Title 3. Section 51.04 thereof, entitled “Jurisdiction”, provides, in part:

“(a) The juvenile court has exclusive original jurisdiction over proceedings under this title.
(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court .
(e) A designation made under Subsection (b) of this section may be
changed from time to time by the authorized boards or judges for the convenience of the people and the welfare of children. However, there must be at all times a juvenile court designated for each county. It is the intent of the legislature that . . . changes in the designa-
tion of juvenile courts be made only when the best interest of the public requires it.”
It is, therefore, plain that statutory authority existed for the designation of all the district courts of Hidalgo County, Texas, as “the juvenile court”. Nothing is presented which indicates that the 206th District Court could not have been so designated.

The juvenile, in his brief, makes the unqualified statements: that only the 98rd District Court has been designated as the juvenile court of Hidalgo County; that Judge Smith is the juvenile judge, for that court; and that the 206th District Court and Judge Evins “have not been designated as a juvenile court”. ■ The statements have no support in the record. The burden was upon the juvenile to show that Judge Evins and the 206th District Court did not have jurisdiction in the premises. He did not meet that burden. Moreover, the judgment which modified the original disposition shows on its face that it was made and entered in a cause then pending in “THE JUVENILE COURT OF HIDALGO COUNTY”, and that it was signed and entered by Judge Evins as “PRESIDING JUDGE”. Furthermore, the order of commitment affirmatively shows that it was signed by Judge Evins, Judge of the 206th District Court, “Sitting as a Juvenile Court in said County”.

The juvenile also makes the statement in his brief that “the case was not transferred to any other court or judge by Judge Smith”. The record is silent in that respect. All that is shown is that Judge Smith conducted the original hearing and Judge Ev-ins conducted the hearing on the motion for modification of disposition of the juvenile. The Court of Criminal Appeals, in Wise v. State, supra, held where the record showed that all judges of the county could hear all cases, the judge of the 30th District Court, who conducted the entire hearing on the motion to revoke probation, had authority to revoke probation, notwithstanding the fact that the Judge of the 89th District Court presided at the original trial. Also, in Chavez v. State, 462 S.W.2d 283 (Tex.Cr.App.1971), it was held that two judges could conduct parts of one hearing on motion to revoke probation and that either judge could make the ruling.

Rule 330(e), (f), (g) and (h), Texas Rules of Civil Procedure, provides in counties where there are two or more district courts, for the exchange and transfer of authority from one court to another, wherein the judges have broad powers to try any case assigned to another court without having the case transferred, or to transfer cases to other courts. In particular, subsection (g) thereof provides that one judge can hear only part of the case and some other judge can hear the remainder of the case and render judgment.

No reason is shown why Judge Ev-ins was not legally empowered to conduct the hearing and render the judgment that is attacked. It has not been shown that the 206th District Court is not a juvenile court of Hidalgo County. It is not shown that the case was not transferred to Judge Evins and the 206th District Court. Under the record, we must presume that Judge Evins had jurisdiction to hear and determine the case. Point 2 is overruled.

Points of error 3 and 4 assert that the trial court erred in overruling the juvenile’s motion to quash the motion to modify disposition, and that the trial court erred in modifying the disposition of the juvenile based on a finding that he engaged in delinquent conduct without finding that he violated a reasonable and lawful order of the court.

The State, in its motion to modify disposition, alleged:

“. . . said R.A.B. was placed upon probation for a period of one year contingent upon the proper and lawful comportment of said R.A.B. and upon certain other reasonable and lawful terms and conditions which had to be complied with by the said R.A.B.
⅝: * * * * *
That on or about November 17, 1974, he violated a penal law, . . . knowingly possess a usable quantity of marijuana of more than four ounces, against the peace and dignity of the State.”

Counsel for the juvenile at the hearing on the State’s motion verbally moved that the motion be quashed on the ground that “it doesn’t say that he violated a term of his probation”. The motion was denied. No special exceptions were filed with respect to the State’s motion. In addition to the ground urged at the hearing, the juvenile now contends that the State’s motion is vague, ambiguous, and does not satisfy the requirements of due process in that it does not adequately inform him of the charges made against him.

R.A.B., at the adjudication hearing, among other stipulations made by him with the approval and consent of his attorney, stipulated that on or about March 24, 1974, he knowingly and intentionally possessed a usable amount of marijuana consisting of less than four ounces but more than two ounces. It was because of the commission of burglaries, theft, and the possession of marijuana that he was adjudged a delinquent and was placed on probation.

R.A.B. further argues that the language “contingent upon the proper and lawful comportment of said child” which appears in the order that placed him on probation is so vague as to have no legal meaning, and that he did not know what conduct was or was not acceptable under the conditions of probation.

The word “lawful”, while not particularly definite, refers to matters of substance, rather than to matters of form. It has been defined “as meaning according to law; according to, or provided by, law; that which in its substance is sanctioned or justified by the law”. 52A C.J.S. Lawful, pp. 745—746. The word “comportment” is just another word for “behavior”. Both words “lawful” and “comportment” are words of common usage and easily understood. While it is true that the language used in the adjudication order is colloquial rather than legal, we cannot agree with the juvenile that he did not know that the commission of a felony was not prohibited under the terms of his probation. Under all the facts and circumstances here presented, it is inconceivable that R.A.B. would not know that possession of more than four ounces of marijuana would not constitute a violation of the conditions of his probation, especially when his original adjudication as a delinquent resulted, in part, from his possession of less than four ounces of marijuana.

Tex.Family Code Ann. § 54.05(f) (1974) states that disposition of a juvenile may be modified “if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court.” The judgment which is the subject of this appeal recites:

“that the court . . . finds beyond a
reasonable doubt that within the period of probation the said child violated the reasonable and lawful terms and conditions in the following particulars: that on or about the 17th day of November, A.D. 1974, during said period of probation, R.A.B., in the County of Hidalgo and State of Texas, violated a penal law of the State of Texas punishable by imprisonment, namely Section 4.05 of the Texas Controlled Substance Act, in that he did then and there knowingly possess a usable quantity of marijuana of more than four ounces, against the peace, and dignity of the State.”

Juvenile matters are civil in nature and are governed, so far as practicable, by the Rules of Civil Procedure. Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.Sup.1968). The controlling issues with respect to points 3 and 4 are whether the record shows a substantial compliance with the pertinent provisions of the Texas Family Code Ann. (1974), and whether the trial court, in revoking the probation, abused its discretion in finding a violation of a condition of the probation. In re Cockrell, 493 S.W.2d 620 (Tex.Civ. App.—Amarillo 1973, no writ).

In an adult probation revocation case, Dempsey v. State, 496 S.W.2d 49 (Tex.Cr. App.1973), the Court said:

“There are no statutory provisions governing when a motion directed to the insufficiency of the pleading to revoke probation must be filed, or what form such motion shall take, nor is there statutory guidance in determining the sufficiency of the pleading[s]. Thus, our determination must be based upon whether the trial court abused its discretion in overruling appellant’s motion.”

The disposition order rendered by Judge Evins sets out that he finds that R.A.B. engaged in conduct after the date he was placed on probation which violated the terms of his probation in that he violated a penal law of this State. We hold that there was substantial compliance with the applicable provisions of the Texas Family Code Ann. (1974), and that there was no abuse of discretion in overruling the juvenile’s motion to quash the State’s motion to modify disposition, or in revoking the juvenile’s probation. Points 3 and 4 are overruled.

R.A.B., prior to the hearing on the State’s motion to modify the disposition made of him by the order of July 30, 1974, filed a written motion to suppress the introduction into evidence of the marijuana which was discovered in his car on November 17, 1974, on the ground that such was obtained as a result of an illegal search and seizure. He also filed a written motion that the State be required to reveal the name of the informer in order for him to examine the informer and thereby determine whether or not there was probable cause for his arrest and search. Both motions were denied. The court’s rulings thereon form the basis for points of error 10 and 11.

It is undisputed that the arresting officer did not have either a warrant for the arrest of R.A.B. or a search warrant for either his person or the car being driven by him at the time the marijuana was discovered in his possession. The contention is made that there was no probable cause for the war-rantless arrest of the juvenile, and since no search warrant was obtained prior to the arrest, that the fruits of the search incident to the arrest were inadmissible in evidence at the hearing on March 18, 1975.

R. L. Park, Chief of Police, Mercedes, Texas, testified that on November 17, 1974, at about 3:00 p. m., he received information from an informant, who had given him reliable information on two or three prior occasions that had led to narcotics arrests, that R.A.B. would be selling marijuana to a third person in the parkin'g area of the laundromat of a trailer park located in the vicinity of Chapman Drive and 5th Street, Mercedes, Texas, and that the sale would be made at about 8:00 p. m. on that day. He further testified that he knew R.A.B. by sight, and that he knew “the vehicle he normally drove”. At approximately 6:30 p. m., on November 17, 1974, Park and another officer set up a surveillance of the above described location and area. Between the hours of 8:00 and 9:00 p. m., Park saw R.A.B.’s vehicle drive by the area “two or three times”; after his “second pass”, another car pulled into the parking lot and then R.A.B. drove into the lot, stopped his car in front of the laundromat in the parking lot. He stopped his car “nose to nose to the other car”. Park said he then approached the cars, identified himself as a police officer, placed all parties under arrest, searched them, found marijuana paraphernalia on the person of R.A.B., searched the car then being driven by R.A.B., and discovered a bag in the car that contained a substance which he believed to be marijuana. The bag and the items found on the juvenile’s person were seized by him.

Much has been written of late on the topics of “probable cause”, “warrantless arrests”, and “searches and seizures”. No reason exists why we should lengthen this opinion by a review of the many cases on the subjects. The same fact situation which is present in this case has been repeatedly passed on by both Federal Courts and the Texas Court of Criminal Appeals. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Acosta, 411 F.2d 627 (5th Cir. 1969); Coyne v. State, 485 S.W.2d 917 (Tex.Cr.App.1972); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.1971); Garcia v. State, 459 S.W.2d 839 (Tex.Cr.App.1970); Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969). In the case at bar, the arresting officer knew R.A.B. on sight and was familiar with the car that he usually drove; the information given to him came from a source that had proved to be reliable and trustworthy on prior occasions; and the events unfolded exactly as the informant told him would be the ease. Under the circumstances, there were reasonable grounds for Park to believe that R.A.B. would be in possession of marijuana at the appointed time and place. There was probable cause for the arrest of R.A.B., and the search of his person and car was legal. The evidence discovered at the scene was legally admissible. Point 10 is overruled.

The record further reveals that the informant was not paid for informing, did not have a criminal record, and was not present at the scene of the arrest and search. Chief Park, the arresting officer, had known the informant for at least nine months prior to November 17, 1974; this informant told Park that R.A.B. would be selling marijuana at a specific time and place. This case falls within the rule announced in Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969). The reliability and credibility of the informant was established by Park’s testimony. Probable cause was established when the information given Park by the informant was corroborated at the scene by Park’s own observations.

There was no requirement that Park, the arresting officer, state how the informant obtained the information. United States v. Drew, 436 F.2d 529 (5th Cir. 1971). Nor is there any requirement that the informant in this case be identified. Enriquez v. State, 501 S.W.2d 117 (Tex.Cr. App.1973). Point 11 is overruled.

Point of error 9 urges that the trial court erred in admitting into evidence, over objection, the bag and the marijuana contained therein (State’s Exhibit 8), which was found in the juvenile’s car, because there was a break in the chain of custody of the marijuana. The record does not support the point. Chief Park testified as follows: that he saw the bag, which he identified as being the same bag which was designated State’s Exhibit 8, on the floor of the juvenile’s car at the scene of the arrest; that he took possession of it, opened it, and believed that it contained marijuana; that he wrote his name on the bag and the date “11 — 17—74”; that he left the scene, went to police headquarters, where he deposited the bag in a safe, where it remained loeked-up; that he removed the bag from the safe about ten days later and observed that it was in the same condition as when he put it in the safe; and that he then took the bag to the Department of Public Safety’s lab in McAl-len, where he handed it to Don Taylor, a chemist, who placed his own markings on it. At the hearing on March 18,1975, he identified State’s Exhibit 8 as being the same bag that he had given to Don Taylor under the circumstances already noted.

Don Taylor testified as follows: that he was a chemist-toxicologist with the D.P.S. in McAllen; that he conducted a chemical analysis on the contents of the bag (State’s Exhibit 8) which was delivered to him by Chief Park; that he determined that the bag contained approximately 6.95 ounces of marijuana; that after he had completed his analysis of the contents of the bag, he put the evidence (State’s Exhibits 4, 5, 6, 7 and 8) in a box, sealed the same, and placed it “in my evidence storage room”; that the contents of the sealed box remained in his care, custody and control from the time they were delivered to him by Chief Park until March 18, 1975, the date of hearing in the State’s motion to modify disposition, when the box was delivered by him to the District Attorney.

There was no showing that the contents of the box had been tampered with by anyone. The record reflects a perfect chain of custody from Chief Park to Don Taylor to the District Attorney. There was no error in admitting the contents of the box into evidence. Mitchell v. State, 488 S.W.2d 786 (Tex.Cr.App.1973). Point 9 is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    COLLEGIATE RECOVERY & CREDIT ASSISTANCE PROGRAMS, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 5460.
    Court of Civil Appeals of Texas, Waco.
    June 26, 1975.

      Matthews, Matthews, Sechrist & Madrid, Jay J. Madrid, Dallas, for appellants.
    Henry Wade, Dist. Atty., Charles Yett, Asst. Dist. Atty., Dallas, John L. Hill, Atty. Gen. of Texas, Bill Flanary, Asst. Atty. Gen. of Texas, Austin, for appellee.
   HALL, Justice.

The State of Texas brought this suit by way of a verified petition against Collegiate Recovery And Credit Assistance Programs, Inc., and Arnold G. Tate and Carolyn Tate, seeking a temporary restraining order without notice and the appointment of a receiver without notice, a temporary injunction, a permanent injunction, forfeiture of the charter of the corporate defendant, and the assessment against the defendants of certain civil penalties. When the suit was filed, the court issued a restraining order and appointed a receiver, upon the sworn pleadings of the State, without notice to the defendants. This appeal was perfected to question only the appointment of the receiver. We affirm.

The State alleges in its petition that the individual defendants are officers of the corporate defendant; that the defendants are violating the Texas Deceptive Trade Practices And Consumer Protection Act, V.T.C.A., Bus. & C., Sec. 17.41 et seq., in the operation of the company’s business as a collection agency under contracts with various educational institutions whereby the defendants are employed to collect money owed to the institutions on past due educational loans made to students and former students by the institutions; that the defendants have been engaged in and are engaged in a conspiracy and common plan and scheme designed to mislead, deceive and defraud the educational institutions, the debtor-students, and federal agencies which guarantee some of the loans, (a) by using and misrepresenting actual and fictitious names in their collection practices, (b) by representing to debtor-students that funds collected from them are properly forwarded to the proper institution for proper credit when this in fact is not done, and (c) by converting the funds collected to the defendants’ corporate and personal use; that the defendant corporation is insolvent or in imminent danger of insolvency; that the defendants have so intermingled the funds in their financial records and business activities that irreparable injury, loss and damage will result to the State of Texas, the general public and to the United States Government if the defendants are permitted to continue these activities; that it is feared that the defendants will destroy records relevant to this lawsuit; and that a receiver should be appointed without notice to take charge of and preserve and protect the records and property and assets of the company and of the individual defendants insofar as they pertain to company business.

The matter of appointing a receiver without notice is addressed to the sound discretion of the court, and, in the absence of a clear abuse of that discretion, the appointment will not be disturbed on appeal. Cash v. Ervin, (Tex.Civ.App. — Texarkana, 1933, no writ hist.) 62 S.W.2d 242, 243; Corsicana Hotel Company of Texas v. Kell, (Tex.Civ.App.— Dallas, 1933, no writ hist.) 66 S.W.2d 760, 761.

Art. 2293, Vernon’s Tex.Civ.St., authorizes the appointment of a receiver in several situations, including “cases where a corporation is insolvent or in imminent danger of insolvency” and “all other cases where receivers have heretofore been appointed by the usages of the court of equity.” While it is true that insolvency alone of a corporation will not justify the appointment of a receiver without notice, the insolvency coupled with a situation creating an emergency does authorize the appointment without notice. Ellman v. Reinarz, (Tex.Civ.App. — Austin, 1965, writ dism.) 390 S.W.2d 519, 521. The emergency, here, according to the facts pleaded (which we must assume to be true for the purpose of our review) was that money illegally collected by the defendant corporation which should have been used to pay student loans guaranteed by the Federal Government were being intermingled with the private funds of the individual defendants and then converted by them to their private use, in a fraudulent and misleading manner that was calculated to cause irreparable injury and loss to the State of Texas, the Federal Government and the public generally. Additional pleadings expressed the belief that, if given notice of the application for a receiver before the appointment, the defendants would have destroyed pertinent records of their deception.

It is our view that the facts alleged by the State authorized the ex parte appointment of a receiver, at the court’s discretion, either on the basis of the corporate defendants’ insolvency or under the broad usages of equity. The order is affirmed.


author: REYNOLDS, Justice. ELLIS, Chief Justice.

text:
    CACTUS DRILLING COMPANY, Appellant, v. Ruller D. WILLIAMS, Appellee.
    No. 8545.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1975.
    Rehearing Denied July 31, 1975.

      Crenshaw, Dupree & Milam (Cecil C. Kuhne and William R. Moss), Lubbock, for appellant.
    Warren Burnett Associated (Richard J. Clarkson), Odessa, for appellee.
   REYNOLDS, Justice.

In this common-law action to recover damages for personal injury received when a pipe fell on his hand, plaintiff secured a favorable jury verdict upon which judgment in his favor was entered. A defective submission of essential elements in the case operates to vacate the judgment. Reversed and remanded.

An oil well, the owner of which was identified as Pan Am, had been drilled in Yoa-kum County by, and it was under the control of, defendant Cactus Drilling Company. A Sherman Power Tongs crew had run casing into the well. Plaintiff Ruller D. Williams was one of a four-member Byron-Jackson, Inc., crew on the site to cement the well.

The cement was to be pumped from the Byron-Jackson pump truck through a connected two inch, twenty to thirty foot steel pipe, constructed with swivel joints to achieve flexibility, into and through a cement head suspended from the oil derrick some twenty-five feet above the drill rig floor and thence into the casing that had been placed in the hole. It was necessary that the pipe connected to the pump truck be raised from the drill rig floor for attaching to the cement head by means of a catline operated from a cathead. A cathead is an engine-powered revolving drum around which is wound a catline which, in this instance, was described as a rope with a length of cable on the loose end. The cat-head was owned by Cactus and, according to Williams, was being operated by an employee of Cactus, whose employees usually operated it. The cementing operation was at the direction of a member of the Byron-Jackson crew stationed in the derrick.

During the afternoon of 16 January 1970, as the Cactus employees were in the process of changing crews, John Bland, a member of the Byron-Jackson crew, attached the catline to the pipe with the assistance of Williams and another member of the Byron-Jackson crew. Before the pipe had been raised to the cement head, the cable, which apparently was too long, engaged the drum and the pipe could not be raised higher. The pipe was lowered to the drill rig floor where some slack was taken out of the cable.

Some person whose identity is disputed, and who acted without being requested to do so by anyone, obtained a chain with a hook on its end from the muddy drill rig floor, wrapped the chain around the catline several times and secured it with a timber hitch tie, and connected it to the pipe. No witness knew the name of the person who made this second connection. Although Williams had deposed a year after the occurrence that he did not know if it was the casing crew or a Cactus employee who made the second connection, he testified at the trial in June of 1974 that a Cactus employee made the connection. Williams readily agreed that all three crews were around the drill rig floor at the time. Bland said he was sure the hookup was made by an employee of Cactus but, when pressed, he stated that he did not know but presumed the person was a Cactus employee. He knew the four Byron-Jackson crew members and said that the tie was not made by a Byron-Jackson man. He further declared that the casing crew had gone inside the doghouse to get warm, that they were not on the drill rig floor, and that they never help in the operation. Frank Cochran, a driller for Cactus who observed the scene after the second connection had been made when he came out of the doghouse where the crew changed clothes, testified that to the best of his knowledge none of the Cactus employees were on the drill rig floor at the time. A tool pusher for Cactus, Glenn Simpson, testified that although the normal procedure was for the Byron-Jackson crew to connect the catline to the pipe, he did not know who made the second connection. He was in the doghouse when he saw the pipe falling, at which time he saw five or six or seven people on the rig floor.

The timber hitch tie was described as the wrapping of the chain around the eatline several times and tying it with a double half hitch. The pressure exerted by raising the catline tightens the hitch to secure the connection with the pipe. Bland, who watched the person tie the timber hitch, testified that he told the person, “(W)e never had done it like this before,” and “that won’t work.” Williams saw the connection being made and saw nothing wrong with it. He said he made no objection because he was not familiar with it and he did not know how to do it, although he admitted he had seen these types of connections used many times before in the oil fields. Simpson’s testimony was that, although it may not have been standard procedure in the oil field, a timber hitch had been used a long time even though it was not used all of the time. He responded that he knew of nothing wrong with, and in his twenty-four years of experience there had not been any trouble before in, “tying flexible steel pipe to the catline with wraps around it with a chain in order to pick it up.” Cochran, an employee of Cactus for sixteen years, was of the opinion that a timber hitch is not used very often.

As the pipe was raised the second time, Williams was standing almost beneath it holding, so he and Simpson said, the power tongs out of the way of the pipe. When the pipe had been raised some twelve to fifteen feet, the tie slipped down the catline and the pipe fell some three or four feet, striking Williams on his right hand. After Williams was struck, the connection held, and the pipe was then raised and connected to the cement head.

Williams was hospitalized for his injuries. Later, almost all of the middle finger of his right hand was amputated.

The verdict of the jury was comprised of its answer to Special Issue No. 1, viz.:

Do you find from a preponderance of the evidence that an employee for Cactus Drilling failed to properly connect the pipe in question?
Answer “Yes” or “No”
ANSWER: Yes

together with its findings that such failure was negligence and a proximate cause of the occurrence, that Williams was not con-tributorily negligent in the respects inquired about, and that $30,000 would fairly and reasonably compensate Williams for his injuries. The motion for judgment filed by Cactus was overruled, a new trial was denied, and judgment in favor of Williams was entered on the verdict.

Defendant Cactus presents various attacks on the composition and submission of special issue no. 1 and the jury’s answer made thereto, as well as its contention that the answer entitled it to judgment pursuant to its motion. One of the attacks developed is that the issue assumes that an employee of Cactus made the second connection, which was highly controverted, and another is that the jury’s answer of “yes” to the issue as worded is ambiguous and will not support a judgment.

To recover on his cause of action developed for submission to the jury, Williams had to initially establish that an employee of Cactus connected the catline to the pipe improperly. Cactus denied that the connection was made by its employee and strove to show that, in any event, the connection was properly made. Both of these essentials of the cause of action were vigorously presented and strenuously contested.

That a Cactus employee made the second connection was not undisputed nor conclusively established as Williams submits. In the final analysis, so far as Cochran knew no employee of Cactus was present; Bland only presumed that it was an employee of Cactus; and Williams, who had deposed following the accident that he did not know whether the person was an employee of Sherman Power Tongs or Cactus, was the only witness to testify definitely that the person was an employee of Cactus. This testimony of identity, depending mainly on the declarations of an interested party, is not so clear, direct, positive and without contradiction that it establishes the identity as a matter of law, and the evidence does no more than raise the fact issue. See Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). Equally unresolved was the question of whether the connection was made improperly.

Thus, a jury resolution of the initial two questions was necessary. Rule 279. Although the 1 September 1973-amended Rule 277 invests the court with discretion to submit separate questions with respect to each element of the case or to submit issues broadly, the rule, consistent with the dictates of Rule 279, reiterates that the controlling issues raised by the pleadings and the evidence shall be submitted.

There being no other special issue speaking to either one or both of the two contested elements, these elements were relegated to the coverage provided by special issue no. 1. To be sufficient, the issue must submit the disputed elements for the jury’s resolution. Either an assumption of a disputed fact or a phrasing which produces an ambiguous response is fatal.

As cast, the literal language of the issue assumes, or the issue is phrased to lead the jury to believe that it assumed, that an employee of Cactus made the connection. Consequently, the jury was called upon to answer only the single question of whether he failed to properly connect the pipe. There was then no finding, nor any opportunity for the jury to find, whether it was an employee of Cactus who made the connection. The trial court objection clearly pointed out the vice in the wording of the issue, and the overruling of the objection deprived Cactus of its right to the clear submission of the disputed elements that is assured by Rules 277 and 279. Considering the circumstances of the case and the charge as a whole, the force of the assumption contained in the issue is harmful.

If it be arguable that the issue does not contain the assumption, the alternative view is that the issue was drafted to elicit the jury’s determination, from a “yes” or-“no” response, whether an employee of Cactus made the connection and, if so, whether he improperly did so. In this context, Williams, of course, had the burden to convince the jury by a preponderance of the evidence that both elements of the issue were true. A “yes” answer was necessary to establish both facts; but if the jury was not convinced by the necessary proof that a Cactus employee made the connection even though the jury was convinced that the connection was improperly made, the only way it could respond to the first element of the issue was by a “yes” answer. A “no” answer could not announce that determination if the issue embraced both elements, because the only legal effect of a negative response to the issue as phrased is that the jury was not convinced by a preponderance of the evidence that a Cactus employee failed to properly connect the pipe, which means he did properly make the connection.

Demonstratively, then, the wording of the issue is not capable of producing the two definitive findings Williams was required to obtain for a recovery. If the issue assumed a controverted fact, there was no finding on that essential element in the case. In the event the issue was intended to submit both contested elements for the jury’s determination, the “yes” answer could mean that Williams discharged his burden of proof on both elements or it could mean that he failed to convince the jury by the necessary standard of proof that a Cactus employee made the connection. As such, the language of the issue gives rise to mistake in the meaning of the verdict actually returned, and neither the trial court nor this court is permitted to speculate as to what the jury intended by an ambiguous answer which, because of its ambiguity, cannot constitute a proper basis for a judgment. Moore v. Moore, 67 Tex. 293, 3 S.W. 284 (1887); Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 288 S.W. 145 (1926). An ambiguous verdict makes it impossible to render a proper judgment. Wright v. Carey, 169 S.W.2d 749 (Tex.Civ. App., Eastland 1943, no writ).

The defective submission mandates that the judgment be reversed and the cause be remanded. This action pretermits a discussion of the other aspects of the attacks directed to the special issue since they will not arise in the event of a retrial submission of a proper issue or issues. Furthermore, the action renders moot some of the remaining points of error advanced by Cactus; however, in the event of another trial, there are other matters presented in this appeal which require attention.

Cactus asserts it was entitled to judgment because of either of two propositions. Cactus proposes that there is no evidence that Cactus had a duty to warn or protect Williams from any danger of tying the cat-line to the pipe, because Williams observed the tie being made and it was open and obvious. It is further proposed that the undisputed evidence established the defense of volenti non fit injuria since as a matter of law Williams knew or was charged with knowledge of the danger of the situation. Alternatively, there is advanced the contention that it was error for the court to refuse to submit the issues Cactus offered to establish these defenses. A resolution of each proposition necessitates an additional statement of the relevant evidence.

Williams began working for Byron-Jackson sometime in 1968. His injury was sustained on January 16, 1970. Williams observed the second connection being made and he saw nothing wrong with it. Though he knew these types of connections were made in the oil fields, he made no objection to the way the connection was being made because, as he said, he “was not familiar with it,” and he did not know how to do it. So far as he knew, all of the equipment was in perfectly good working order. He stated that the person who made the connection was opposite him in almost the same position under the hookup and that, as the pipe was being raised, the person did not reflect any fear of what was going on or that something improper had been done. He saw nothing based on his experience that needed to be done to prevent the occurrence.

It was the opinion of Bland, who had worked for Byron-Jackson for five years “(t)his past time,” that whether a person who saw the tie would think it was a dangerous situation would depend on the experience the person had. When asked if, Bland agreed that, anybody could see that the catline was not dry and it should be open and obvious to them that it might slip; but it was possible, he said, that the “knot would have held if the catline would have been dry or if he had had a proper size chain.” He also answered “Sure,” to the question, “Well, anyone that would be standing under that catline would be exposing themself to this danger of falling which you said was because of the size of the chain and the un-dry catline?” Bland believed that he told Williams to watch the pipe as it went up, but he did not tell him it was a dangerous operation or to get out of the way.

Cochran, who had been drilling for Cactus about eight or ten of his sixteen years with the company, stated that regardless of the procedure going on, a drilling rig is dangerous because “(J)ust anything could happen. They could drop a hammer out of the derrick up there on him or anything and hit him.” Cochran said that when he saw Williams with his right hand on the casing as the pipe was going up, he ran “to pull him away from there because anything could happen, you know.” However, just by looking at it, he had no idea the pipe was going to fall.

Simpson had been a tool pusher for Cactus for almost five years and he was in charge of the rig. He said that it was standard procedure in the oil fields for persons not to stand under anything that is being lifted into the rig.

It was, of course, the burden of Williams to prove the existence and violation of a legal duty 'owed to him by Cactus. Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970). Cactus, as the occupier of the premises over which it had control, owed a duty of ordinary care to Williams, an invitee, which stayed constant unless it was in some manner removed or discharged. Scott v. Liebman, 404 S.W.2d 288 (Tex.1966). If the specific danger was so open and obvious that anyone could plainly see it, then, as a matter of law, Cactus owed Williams no duty to warn him of or to protect him from the danger. But the open and obvious situation occurs only when there is no dispute in the evidence concerning the facts that charge one as a matter of law with knowledge and full appreciation of the danger. Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972). Whether one should have known and should have appreciated the danger are proper issues only of contributory negligence. Greenhill, Assumed Risk, 20 Sw.L.J. 1, 11 (1966).

The proof here does not show the danger was so patent as to charge Williams as a matter of law with knowledge and appreciation of the danger. In addition, the specific danger that resulted in injury to Williams was not that static condition nor that rigidly circumscribed and easily predictable activity which presents an open and obvious situation in invitee cases, and under the circumstances developed, Cactus owed to Williams, as an invitee on the premises controlled by Cactus, a duty not to injure him through negligence. Hernandez v. Helden-fels, 374 S.W.2d 196 (Tex.1963).

This brings us to a consideration of the doctrine of volenti non fit injuria as a complete defense to this negligence action. For volenti to be applicable, it must appear that Williams, with full knowledge of the nature and extent of the danger involved, placed himself, as the result of an intelligent choice, in the way of the particular risk that the tie would slip and permit the pipe to fall. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). As a result, it is not sufficient to show that he had knowledge of some danger; he must have had knowledge of the particular danger that resulted in his injury. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953). To possess the required knowledge of the specific danger if he did not actually know of it, Williams must have been in possession of facts from which he may be legally chargeable with knowledge of the danger and appreciation thereof. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

Application of these principles makes it apparent from all of the evidence, by which Williams’s subjective knowledge and appreciation of the specific danger resulting in his injury must be gauged, that he did not actually know of and appreciate the particular danger which resulted in his injury. Even though he had seen the timber hitch used, he was not familiar with it, he did not know how to do it, and he saw nothing wrong with it or the equipment being used.

There remains the question of whether Williams was in possession of facts from which he may be legally charged with knowledge and appreciation of the specific danger. Although it is agreed that there is general danger in working around an oil rig, the only facts bearing on the specific danger of slippage that may be said to be in Williams’s possession are those elicited from Bland’s testimony wherein he stated, “It’s possible . . . this knot would have held if the catline would have been dry or if he had had a proper size chain.” Bland did not communicate this knowledge to Williams. There is no evidence that Williams appreciated the significance of danger from either condition; he stated positively that he saw nothing wrong with the way the connection was made and that the equipment was in perfectly good working order. The record is devoid of any evidence that his limited experience either made him aware of or provided him with the opportunity to appreciate the danger posed by either condition. It is not reasonably infera-ble that his short experience armed him with any facts necessary to appreciate the particular danger. Simpson knew of nothing wrong with the procedure. In his twenty-four years of experience, he had never had any trouble with tying the catline to the pipe with a chain, and this incident was the first problem he had known. Cochran said he did not see anything wrong with the way the tie was done and that, by looking at the pipe being raised, he did not know it was going to fall. Further, he stated that neither he nor Williams had any idea that the pipe was going to fall. Additionally, the demeanor of the person who made the connection did not indicate to Williams any fear that something improper had been done.

The evidence is not such as to legally charge Williams with knowledge and appreciation of the particular danger. At most, the evidence does no more than create a mere surmise or suspicion of the existence of the vital facts requisite to a submission of the defensive issues. Surmise or suspicion, in legal contemplation, is not any evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). And there being no evidence of the vital facts, the trial court correctly refused to submit the requested issues. Ladd v. Knowles, 505 S.W.2d 662 (Tex.Civ. App., Amarillo 1974, writ ref’d n. r. e.).

Cactus pleaded that any negligence was that of a fellow servant of Williams. Cactus contends the court erred in refusing its special issues tendered to inquire if the connection was made by fellow servants of Williams and whether their actions constituted negligence which was a proximate cause and the sole proximate cause of the accident. Cactus also contends the court erroneously refused its tendered special issues, each after the first conditioned on an affirmative answer to the preceding one, inquiring if Bland was a fellow servant of Williams, knew of the danger, failed to warn Williams, and if the failure was negligence which was a proximate cause and the sole proximate cause of the accident.

In this connection, the case was postured for submission under Williams’s pleadings and evidence that he, as an employee of Byron-Jackson, had been negligently injured by an unnamed employee of Cactus as opposed to Cactus’s denial that it was, and its evidence that it was not, a Cactus employee who made the second connection, and its position that any negligence was that of a fellow employee of Williams. Logically, then, the fellow servant rule is available to Cactus as a defense if, and only if, the unnamed person who made the second connection was a Cactus employee; otherwise, regardless of the status of the workmen, Cactus had no liability. Consequently, in testing the right of Cactus to the defensive issues, it will be assumed that the unnamed person was an employee of Cactus, who had the burden to adduce evidence raising the issues of the pleaded defense and, in the event such issues were omitted from the court’s proposed charge to the jury, to request the submission of the defensive issues tendered in substantially correct wording. Rule 279.

The general rule is that a master is not liable in a common-law action to one servant whose injury was proximately caused by the negligence of a fellow servant engaged in the same enterprise. Sandefur v. Sandefur, 232 S.W.2d 111 (Tex.Civ.App., Amarillo 1950, writ ref’d). Since fellow servants are those workers who serve the same master, work under the same control, derive their authority and compensation from the same common source, and engage in the same general business, Houston & T. C. Ry. Co. v. Rider, 62 Tex. 267 (1884), the fellow servant rule is applicable only to those employed by the same master. Restatement, Agency 2d, § 476, Comment a. Consequently, workmen employed by different masters are prima facie not fellow servants, Galveston, H. & S. A. Ry. Go. v. Croskell, 6 Tex.Civ.App. 160, 25 S.W. 486 (1894, writ ref’d), even when they work side by side on a common project. Brown v. Sullivan, 71 Tex. 470, 10 S.W. 288 (1888); Restatement, Agency 2d, § 476.

The development of the evidence shows that Cactus Drilling Company, Byron-Jackson, Inc., and Sherman Power Tongs were, and there is no contention that they were not, independent contractors separately engaged in different enterprises on a common project; i. e., completion of the oil well. Under the general principles, Williams and Bland were fellow servants, but Williams and the employees of Cactus were not fellow servants.

Notwithstanding, there are exceptions to the general principle that workmen employed by different masters are not fellow servants. For example, an employee of an independent contractor may become the temporary servant of another independent contractor by submitting himself to the latter’s control and' direction for a particular task. Grandstaff v. Mercer, 214 S.W.2d 133 (Tex.Civ.App., Fort Worth 1948, writ ref’d n. r. e.). For this exception to be applicable, it is not sufficient to show that Williams and the Cactus employees were working side by side; there must be proof that either Williams submitted himself to the control and direction of Cactus, or that the unnamed employee of Cactus submitted himself to the control and direction of Byron-Jackson, in carrying out the task for which Byron-Jackson was specifically engaged. No evidence that either of these two events occurred is contained in the record.

Another exception is that the employee of an independent contractor may become a fellow servant of another independent contractor’s employees when he volunteers in assisting them in a particular task if he is acting to promote the interests of the assisted contractor rather than to further his own interests or those of his own employer. Stephens v. Mendenhall, 287 S.W.2d 259 (Tex.Civ.App., Fort Worth 1956, writ ref’d n. r. e.).

Although the cementing operation was under the control of Byron-Jackson, Cactus was in control of the oil well and was awaiting the conclusion of the cementing operation so its crews could complete the well. No one requested a Cactus employee to assist in connecting or to connect the catline to the pipe; the unnamed person was a volunteer. There is no testimony of the exact reason why a Cactus employee would make or assist in making the hookup. Since Williams acknowledged that “everyone works together to try to get the job done,” it may be that the Cactus employee volunteered merely to assist the Byron-Jackson crew in its operation; or, perhaps he volunteered to promote some special interest of his own or those of Cactus in expediting the completion of the well. But absent any evidence of exactly why he acted, the reason for the action is only speculative. In this state of the record, the answer to the vital question of whether he acted to promote the interests of Byron-Jackson or to further his own interests or those of Cactus must rest on mere surmise or suspicion, which is no evidence. Joske v. Irvine, supra. As a result, the court correctly refused submission of the first series of issues pertaining to fellow servants of Williams.

Turning to the role of Bland, it is clear that he and Williams were fellow servants. Accepting the testimony in the light most favorable to raise the defensive issues, it may be said that Bland, although he neither made the second hookup nor requested that it be done by a Cactus employee, recognized the danger in the manner the connection was made, but he did not warn Williams. Under these circumstances, Cactus would be entitled to the submission of its defense as it related to the actions of Bland if Bland had a legal duty to warn Williams.

Cactus has suggested no authority holding that a fellow servant has a legal duty to warn his co-workers of potential danger arising from a condition he did not affirmatively create. Texas follows the rule that one who did not create a dangerous situation has no duty to warn another of the danger. Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942).

Here, the situation was not created by an affirmative act on the part of Bland; instead, another created the danger which Bland observed. So far as the record reveals, Bland was a mere co-worker of Williams exercising no supervisory control over Williams, and our attention has not been directed to any evidence that shows Bland’s employment imposed on him an obligation to warn of any potential danger not of his own making. From these circumstances, we cannot say that Bland had a legal duty, albeit he may have been morally bound, to warn Williams of the danger resulting from the manner in which the unnamed person made the connection. Beyond that, no issues were tendered to establish facts from which a duty to warn could be found. For these reasons, the court correctly refused submission of the requested issues as they related to Bland’s role as a fellow servant.

One final matter should be noticed. The court refused to permit Cactus to show that Williams, when asked during his deposition what he claimed was done wrong, had answered, “(A)ll I know is that it was an accident.” We think the testimony was material to a consideration of all the facts, and that Cactus was entitled to show that Williams had made the statement. See West Lumber Co. v. Morris & Barnes, 257 S.W. 592 (Tex.Civ.App., Beaumont 1923, no writ).

The judgment of the trial court is reversed and the cause is remanded.

ELLIS, Chief Justice.

In my opinion, special issue no. 1 assumes that an employee of Cactus made the second connection which was a controverted fact. I, therefore, concur in the result.

ON MOTIONS FOR REHEARING

Cactus has reiterated its contentions that it was entitled to judgment because Williams failed to obtain the necessary jury finding that an employee of Cactus made the connection. The inferences are that, under Rule 279, Williams waived his right to recovery by not requesting that specific jury issue with the consequence that, under Rule 434, a take-nothing judgment should have been rendered rather than the remand ordered.

The uncertainty of the inquiry posed by special issue no. 1 dictated that the cause be remanded. If the issue assumed the controverted fact that a Cactus employee made the connection, it was an error precluding proper ascertainment of an essential fact, and the remand resulted in the interest of justice. London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966). If the issue did not afesume the disputed fact, the jury’s answer thereto was ambiguous, and the ambiguity required the remand. Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 288 S.W. 145 (1926).

In the event of another trial, attention is directed to the Supreme Court’s recent decision in Farley v. M M Cattle Company, 18 Tex.Sup.Ct.J. 398 (July 9, 1975), restricting the defense of volenti non fit injuria or, as generally known, voluntary assumption of risk, in negligence actions.

The motions for rehearing filed by Williams and Cactus are overruled.

      . The $30,000 recovery was apportioned $24,731.94 to Williams; $1,668.42 to inter-venor Liberty Mutual Insurance Company, the workmen’s compensation insurance carrier for Byron-Jackson in New Mexico, where Williams resided, for the compensation benefits it had paid to Williams; and $3,599.64 to intervenor Texas Employers’ Insurance Association, the workmen’s compensation insurance carrier for Byron-Jackson in Texas, where the accident occurred, for the $3,099.64 compensation benefits it had paid to Williams and an attorney’s fee of $500.

      . All rules are cited by the number under which they appear in Texas Rules of Civil Procedure.


author: WARD, Justice.

text:
    Lewis Leroy JONES, Appellant, v. Grace Amelia JONES, Appellee.
    No. 6454.
    Court of Civil Appeals of Texas, El Paso.
    July 2, 1975.

      Fugit, Pipes & Bobo, Gerald K. Fugit, J. A. (Jim) Bobo, Odessa, for appellant.
    James McDonald, Crane, for appellee.
   OPINION

WARD, Justice.

This is an appeal from an order entered on a motion seeking to modify the terms of a previous order of a District Court of Ector County and concerns the possession of a child of the parties during the summer months. We affirm the trial Court.

The parties were divorced on February 15, 1973, and the custody of their one child, James Leroy, was awarded to the Appellee, Grace Jones, but with the right for the Appellant to have the possession of his minor son during each summer from June 15th until August 15th and with the further right for the Appellant during the remaining ten months of the year to have the child visit with him on two weekends each month from Saturday at 8:00 A.M. until Sunday at 8:00 P.M.

On May 20, 1974, a second hearing was held and the divorce order was modified to the extent that the right of the Appellant to have possession of his son was changed from two months to two weeks each summer.

The Appellant filed the present motion and hearing was held thereon December 9, 1974. By this motion the Appellant made five requests: That the Appellee, Grace Jones, be ordered not to cause a scene when the Appellant comes to pick up the child for visitations; that the Appellant be permitted to have the child for his visitations from Friday night until Sunday night for two weekends each month; that the Appellant’s present wife, Marilyn Sue Jones, be permitted to pick up the child; that visitation during the summer months be again set at two months instead of two weeks; and that weekend visits where the Appellant had not been allowed to have his child be made up. By the order appealed from, the Court denied the request on the part of the Appellant to have the child during two months of the summer and reaffirmed the order of May, 1974, that he could have the child two weeks in the summertime; that during the time that the Appellant lives in Brown-wood, Texas, he may have the child two-weekend periods during each other month from 6:00 P.M. on Friday until 8:00 P.M. the following Sunday; that the Appellee, Grace Jones, is to notify the Appellant if for any valid reason he cannot have the child on his appropriate visitation weekends; and that he be allowed to have the child on July 4, 1975, to make up for occasions when he had been denied access to his child.

The point made by the Appellant on this appeal is that the Court committed error by considering another case which it had heard and made its present decision upon facts not in the present record. Prior to the introduction of evidence in this hearing, the Court heard argument from counsel as to whether the motion sufficiently alleged that circumstances had materially and substantially changed since the last order. The Court noted that the Appellant had remarried soon after his divorce from Grace Jones and that his new wife had a child from her previous marriage to a Jim Marshall. The Judge then stated that he had heard certain testimony regarding visitation between the parents of the Marshall child and stated that he wanted all four parents present to enable him to work out a compatible and non-conflicting schedule between the two sets of parents and the two children. He next stated that he would not hear the present case, but after further argument went ahead with the testimony. The Appellant and Appellee then testified as to théir present grievances.

Without further discussion, we will assume that the trial Court considered certain facts regarding the dispute between the parents of the Marshall child in disposing of the present case. On that assumption, we fail to see where reversible error has been established. As far as the evidence before us is concerned, it may well be that this was developed in the pleadings or evidence in the former visitation hearing of May 20, 1974, by these same parties regarding the Jones child. If that were so, there would be no error. A Court takes judicial knowledge of things that occurred at a former trial of the same case, and certainly these present parties were not harmed thereby. 23 Tex.Jur.2d Evidence § 26, p. 47.

If the Court erroneously considered the testimony produced at the hearing between the Marshall parents, then we hold that the error was harmless. Rule 434, Texas Rules of Civil Procedure. No findings of fact having been requested or filed, it is our duty to view the conflicting evidence in the light most favorable to the judgment. Renfro Drag Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). Because the Appellant had moved to Brownwood, the Court enlarged his weekend visitations just as he requested. Because the child had become active in Little League Baseball and in Cub Scouts and because visitations in the Appellant’s home upset the child, the Court refused to lengthen the summer visitation from the previous order. No abuse of discretion is shown. A careful review of the record convinces us that the Court considered the best interest of the child over the desires of two bickering parents. Tex. Family Code Ann. §§ 14.07 and 14.08, V.T. C.A.

Affirmed.


author: MeDONALD, Chief Justice.

text:
    Carroll W. (Dub) WHITTENBURG, Appellant, v. Lucille Quinby BUNTING, Appellee.
    No. 5432.
    Court of Civil Appeals of Texas, Waco.
    July 3, 1975.

      Beard & Kultgen, Charles B. McGregor, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, George Chase and Roy L. Barrett, Waco, for appel-lee.
   OPINION

MeDONALD, Chief Justice.

This is an appeal by plaintiff Whitten-burg from a take-nothing judgment against defendant Bunting, in a rear-end collision case.

Plaintiff sued defendant alleging plaintiff’s vehicle was stopped in front of a red traffic signal on Waco Drive in Waco, Texas, on October 7, 1971, at 1:10 P.M. waiting for the signal to change, when defendant’s vehicle struck plaintiff’s vehicle in the rear causing damages. Plaintiff prayed for $145.50 medical expenses (plus expense to be incurred in the future); $37.50 medication expenses (plus those to be incurred in the future); $38.37 automobile repairs; plus physical pain and suffering past and future; all damages aggregating $25,000.

Trial was to a jury pertinent of which findings are summarized as follows:

1) Defendant failed to keep such lookout as a person using ordinary care would have kept.
2) Such failure was a proximate cause of the occurrence.
5) Defendant failed to make such application of her brakes as a person using ordinary care would have made.
6) Such failure was a proximate cause of the occurrence.
9) “What sum of money * * * would fairly and reasonably compensate (plaintiff) for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?” You may consider the following elements of damages, if any, and none other:
a) Past physical pain and mental anguish.
b) Physical pain and mental anguish which, in reasonable probability, he will suffer in the future.
c) Loss of earnings in the past.
d) Probable future loss of earnings.
e) Reasonable and necessary medical expenses for treatment of injuries resulting from the occurrence.
f) Reasonable and necessary expenses if any, for future medical or chiropractic care for treatment of injuries resulting from the occurrence.
Answer in dollars and cents, if any.
Answer: $0.00.

The trial court rendered judgment on such verdict that plaintiff take nothing.

Plaintiff appeals on 3 points contending:

1) The finding plaintiff suffered $0.00 damages as a result of the collision is supported by no evidence.
2) The finding plaintiff suffered $0.00 damages as a result of the collision is against the overwhelming weight of the evidence.
3) The trial court erred in refusing plaintiff’s offer of evidence that his wife had been employed subsequent to the accident, in rebuttal of evidence that plaintiff’s appearance subsequent to the accident tended to show he had not been damaged.

Plaintiff testified as follows: He was 27 years old, married, had two children, was in the insurance business; that on Thursday, October 7, 1971, at 1 P.M. he stopped at the red light at the intersection of Waco Drive and New Road in Waco; that defendant hit him from the rear knocking his 1971 Volks-wagon six feet forward; that the damage to his car was very minor; that it consisted of a dent in the bumper ¼ inch by ⅛ inch, and á bent forward steering wheel; that he either paid for fixing his car or was not charged for same; after the accident he had á headache and numbness in his back and shoulders; after two hours the muscles in his neck and shoulders began to stiffen; that he did not consult a doctor until the following Sunday when he saw Dr. R. W. Covington, an orthopedist, at church, and told him he was in pain and had stiffness; Dr. Covington made an appointment for plaintiff for the following Thursday when he examined him, took X-rays, and prescribed a muscle relaxant and pain killer; a physical therapist in Dr. Covington’s office applied massage and heat packs to plaintiff’s shoulders and neck; he went to Dr. Covington four times and to the therapist some 15 times; plaintiff met Dr. G. W. Ferris, an osteopath, through his brother, an insurance client, at the brother’s cabinet shop in Killeen; that in December 1971, he told Dr. Ferris about being in a collision and of his symptoms; that Dr. Ferris examined him and prescribed muscle relaxants and pain medicine; that Dr. Ferris saw him 18 times in Killeen, the airport, Austin and Smithville; that Dr. Ferris did not charge him for his services and gave plaintiff the prescribed medicine in the form of professional samples; that neither Dr. Covington nor Dr. Ferris were able to significantly help plaintiff as far as permanent relief; that before the accident plaintiff was healthy and able to play golf, tennis and water ski; that since the accident his back and shoulders hurt and that it hurts him to play golf, tennis, water ski or drive a car; that he had been highly successful in the insurance business; and has had substantial increase in income since the collision.

Plaintiff further testified he had two pri- or automobile accidents which badly damaged his cars, but in which he received no personal injuries; that two weeks prior to trial on October 14, 1974, he went to Dr. Bill Williams, a chiropractor, and had seen him several times.

Dr. Ferris by deposition testified he is an osteopath; that he knows plaintiff who handles his brother’s insurance; that he examined plaintiff and found “acute cervi-codorsal strain which has become chronic”, that a strain is a tearing of ligaments from their attachments; that he treated plaintiff with hot packs, muscle relaxant and pain medicine; that plaintiff will continue to suffer pain.

Dr. Williams testified he is a chiropractor; that he examined plaintiff on October 14, 1974, and X-rayed his neck and upper back; that he had seen plaintiff ten times; that he diagnosed a “traumatic proliferated fibrositis of right cervical dorsal region”, which is an inflamatory condition of the muscles of the neck and upper dorsal; that plaintiff’s case is severe; that he does not think he can restore plaintiff to the way he was before he had his problem; that plaintiff will need chiropractic treatments for six months at a cost of $1500.

No medical bills or bills for vehicle damage were properly proved up or admitted into evidence.

Plaintiff’s contentions 1 and 2 assert the jury’s finding of $0.00 damage is supported by no evidence and is against the overwhelming weight of the evidence.

The jury found plaintiff suffered $0.00 damages for his “injuries, if any, which you have found from a preponderance of the evidence resulted from the occurrence”.

Since there was no evidence plaintiff suffered or will suffer loss of earnings, and no medical bills were proved up, plaintiff’s cause of action rests largely on past and future pain and suffering and future medical bills, “resulting from the occurrence”.

The jury heard the testimony of plaintiff, and the other witnesses, observed their demeanor and conduct on the witness stand, and having weighed the testimony returned their findings. The credibility of witnesses, and the weight to be given their testimony are questions for the jury. This is especially true with respect to testimony of parties or other persons interested in the litigation. Matters of pain and suffering past and future are necessarily speculative, and it was peculiarly within the province of the jury to resolve these matters. Harbuek v. Ramos, CCA, NWH, Tex.Civ.App., 371 S.W.2d 912; Royal v. Cameron, CCA, NRE, 382 S.W.2d 335; Hulsey v. Drake, CCA, NRE, Tex.Civ.App., 457 S.W.2d 453; Allen v. Riedel, CCA, NWH, Tex.Civ.App., 425 S.W.2d 665; Smith v. Safeway Stores, Ine., CCA, NRE, Tex.Civ.App., 433 S.W.2d 217.

The damage to plaintiff’s automobile was very slight; plaintiff did not consult a doctor for three days, and then only by talking to him at church; such doctor who thereafter saw plaintiff four times was not called to testify; Dr. Ferris whom plaintiff consulted four months after the collision saw plaintiff at airports, a cabinet shop and other places, furnished professional samples of medicine to plaintiff, and made no charge; no medical bills were in evidence; Dr. Williams the chiropractor saw plaintiff three years after the collision and 2 weeks before trial; and plaintiff had been in 2 prior collisions.

The burden of proof was upon plaintiff to secure findings upon the damage issue by a preponderance of the evidence. From the record we cannot say the jury could not have believed: plaintiff suffered no injury resulting from the collision on October 7, 1971; or that plaintiff’s problems resulted from one or both of his previous collisions; or that plaintiff failed to carry his burden of proving injury and damage resulting from the October 7, 1971, collision by a preponderance of the evidence.

And from the record as a whole we cannot say that the finding plaintiff suffered $0.00 damage as a result of the October 7, 1971, occurrence is against the great weight and preponderance of the evidence. In re King’s Estate, Tex.S.Ct., 244 S.W.2d 660.

Plaintiff’s 3rd point complains of the exclusion of evidence that plaintiff’s wife was working and earning $12,000. per year. If error, the matter is harmless under the record as a whole. Rule'434 Texas Rules of Civil Procedure.

Plaintiff’s points are overruled.

Affirmed.