*1 objections. inquired the work for Issue as to the No. was unsuitable wholly truck instance, ap- reasonable For cash market value of the truck to do. it was intended attempted question sale, he on every time the date of and is- pellee testified that inquired down. We sue No. 5 as to value of the something to use it would break appellee purchase if gave price rescission the truck there basis for a think pur- purchased appellant. for the truck from unsuitable truck 581, Tex.Jur., p. sec. pose 262. intended. 37 Appellant does not state what ob wholly un- questions it was The of whether jections he made said would have issues render- whether the conditions suitable and comments, but for the court’s and does not sale of should it so existed at the time ing in what way show he was harmed. jury. by be determined trial, In view of we suggest another point The error is of overruled. on values issues not be conditioned on af- Appellant point argues that of error firmative answers to the issues determin- appellee any right waived of rescission rights, any, if of rescission. might he have had continued use Judgment of the trial court is reversed purchased period ap- of the truck for of the cause remanded for a new trial. proximately two months. appellee The testified that he took place appellant’s
the truck back busi repairs; “lots of times”
ness that sev repair
eral times he them to it asked
they would tell him to come back the next-
day ; and the next would tell him day they
they were busy too to fix it. From the rec period ord we cannot determine what over CASWELL, B.C. B-C Furniture d/b/a negotiations al., Appellants, these time conversations et Finally, appellee continued. left the truck appellant’s lot, finding no one in Henry SATTERWHITE, H. Satter d/b/a charge told an he was leaving attendant it Home, Appellee. white Funeral appellant. No. 3257. question appellee or not of whether is, within a Appeals acted reasonable time under Civil Texas. us, McMurtry record before one of fact. Waco. Maresh, Tex.Civ.App., Motor Co. v. 84 S. 24, March 1955. p. Tex.Jur., W.2d 241. sec. Opinion Filing of After Remittitur In testimony, say view of the we cannot March appellee, law, as a matter waived right his of rescission. April Rehearing Denied point, appellant By fourth contends
the court rendering judgment appellee because the appel- court induced attorney objections
lant’s to terminate his charge by the court’s representing that appellant would be rendered for special
if the issues were answered
jury later answered such issues. appellant
In his motion for trial al- new
leges he was objecting issues Nos. 4 and he was cease'making when so induced *2 Flahive, Dallas, appellants.
Bondies &
Price,
Strasburger,
Kelton, Miller &
Martin, Dallas,
appellee.
McDONALD, Chief Justice.
Appellee
Satterwhite
ap-
sued
pellants Caswell and Harvin as defendants
$1,500, seeking recovery
of damages to
his ambulance which was struck
a truck
appellant
belonging to
Caswell and driven
by appellant Harvin.
Parties will here-
referred
after be
to as
the Trial Court.
alleged
Plaintiff
that his
carry-
extremely
patient,
sick
with its emer-
flashing
gency lights
and its siren sounding,
as the result
was struck
of number of acts
(cid:127)
omissions
constituting
negligence.
Defendants
;
bulance
alleged
language:
then contained this
contribu-
action
brought a cross
wit- “Two concerns made an
estimate on
One of
tory negligence.
necessary repairs,
the am-
and the
amount
nesses, Johnson, as to the
*3
accident,
estimates,
damage
by
tes-
is
said
the
fixed
and after
$300
bulance before
which we bélieve
be
as it
ambulance be-
as reasonable
to
that the value
tified
possible
$4,200
reputable
and will be
from
to obtain
was between
the
fore
accident
repair shops.
request
you
accident
I
that
let me
after
$4,500
its
the
that
value
and
your
$2,200.
evidence have
remittance
this amount
When this
$1,800
was
to
n )»
* *
amendment,
by
plaintiff,
trial
admitted
was
pled for from
damages
raised the amount of
We believe that admissions of facts made
$1,500
$2,700.
to
attorney
by
in collection letters written
an
finding the in reference
a claim in his hands are
a
to
jury returned
verdict
client,
competent
if
against
the
evidence
plaintiff
negligent,
defendant
not
and
attorney
present
value
the am- the
to
the
fixed the
authorized
negligent, and
A.L.R.,
III,
the accident and claim out of court. 97
Part
$4,200 before
bulance at
395;
Co.,
p.
Logre
$2,200
The Trial
v. Galveston Electric
accident.
Court
after the
303;
Tex.Civ.App.,
granted plaintiff judgment against
146
Fire
defend-
S.W.
St. Paul
Clark, Tex.Civ.App.,
Marine
$2,000.
&
Ins. Co. v.
ants for
229; Parker
N.
200 S.W.
v. Louisville &
appeal
on six
to this court
Defendants
Ill.App.
Co., 230
259. We believe
L.
that
1)
Trial
Error:
That
the
Court
Points of
the tendered letter was admisisble in evi-
excluding
evidence a letter
in
from
erred
However,
dence.
a review of the record
by
Bowers,
a Mr.
then
written to defendants
plaintiff
this cause reflects that
in
testified
plaintiff,
purportedly
attorney for
which
engaged
that he had
Mr.
Bowers
look
plaintiff’s
damage to
ambulance
the
fixed
damaged
the matter of the
after
the
2) That
evidence
at $300.
him;
that Mr. Bowers wrote a letter
qualify
witness
the
insufficient
Johnson
defendant,
plaintiff
sending
carbon
expert as
the
testify
an
to the value of
same;
copy
that
Mr.
told
competent
is
3)
ambulance.
That there
no
damages
Bowers the amount of
to the am-
support
jury’s finding
the
and
evidence
bulance;
2
fix-
and that he had
estimates
damages in the amount of
judgment for
the
$300;
damage
the
to the ambulance at
in
$2,000. 4)
the Trial Court erred
That
were
that
these estimates
reasonable
and
testimony
admitting into evidence
con-
not
shops.
reputable repair
Plaintiff
and from
settlement
Court
cerning a
Justice
damages
then
that the
were
reiterated
$300.
filed
of action
of a cause
we see that all
Thus
contain-
plaintiff,
grew
out of the
information
against
letter zvas in the record
ed in the
and
5)
as involved
this case.
facts
before
same
plain-
the
the
jury
testimony
holding
that
the Trial
from
That
fact,
Since such is the
de-
operated
being
ambulance was
plaintiff’s
himself.
tiff
must be deemed to have received
fendants
call,
emergency
and in sub-
response to
matters,
all of these
that
benefit of
so
jury
theory.
the cause to
on this
mitting
of the letter itself as an ex-
exclusion
allowing
Trial Court erred in
6) That the
preju-
have been harmful
hibit
could
damages and in
jury to find excessive
is
to them.
It well settled that error
dicial
ordering a remittitur.
of evidence will be
in the exclusion
deemed
other evidence
substan-
harmless where
Point of Error
1st
tially
nature and
the same
effect
admit-
complains of the Trial Court’s action in
Tex.Jur.,
In
3-B
Sec. 1042.
the fol-
a letter
ted.
from evidence
written to
excluding
Bowers,
have held
lowing cases
courts
er-
by Mr.
who was the
defendant
of a letter or
plaintiff.
exclusion
other
attorney
roneous
The let
home-town
evidence,
written memoranda from
to be
the writer was
defendant
ter advised
harmless, when all facts stated in the
plaintiff;
letter
attorney for
referred to
ac
other memoranda are shown
the rec-
damaged am- or
and to
cident
trade-ins,
things
Worth Nat. mobiles—wrecks
v. Ft.
Sandifer
ord otherwise:
that;
512;
likes
Gulf
that he knew the value
used
Bank, Tex.Civ.App.,
S.W.2d
County;
Tex.Civ.App.,
damaged
ambulances in
Smith,
145 S.W.
Corp. v.
Oil
Ry.
that he had estimated the values of ambu-
& G. N.
280;
International
2d
Smith
564;
County;
Fein
lances in Dallas
he
famil-
Tex.Civ.App.
that was
99 S.W.
Lefkovitz, Tex.Civ.App.,
iar
ambu-
147 S.W.
with the market
used
gold v.
ambulances;
Ry.
damaged
Co.
lances
that he
346, 347;
Louis Southwestern
St.
County
knew their value
Kerr, Tex.Civ.App.,
in Dallas
184 S.W.
Tex.Civ.App.,
May
198 S.W.
Biggers,
Couch v.
Gamer, Tex.
1101; Sanitary Mfg. Co. v.
From the above
and hold
*4
we conclude
1068; Maxey v. Nors
Civ.App., 201 S.W.
amply quali-
that the witness
Johnson
Tex.Civ.App.,
and in view that theory. It jury on this operated in re being
the ambulance as set sponse emergency out to MILLS, COTTON FULTON &BAG transport to statute, being used Appellant, since it was years age, who very patient 79 sick v. time, at the and getting to be worse seemed al., VALLEY PRODUCTS CORP. et However, since suffering greatly. who was Appellees. part jury negligence found No. 14909. contributory negligence defendants and no plaintiff, plaintiff is entitled on the Appeals of Civil of Texas. Moreover, in event. any recover Dallas. objected to charge of the Court was excepted any way by March defendants. 2nd, 1st, April 4th 5th Points Rehearing Denied accordingly are overruled. and 6th are
Defendants’ 3rd Points the effect that the evidence is insufficient support finding judgment $2,000, damages in and that the amount of allowing jury
the Trial Court damages order find excessive a remittitur. We are in accord that the excessive, and believe that the
damages are the Trial Court are
verdict $500, and that this in the sum of excessive be reversed that reason
cause should days However, appellee is
only. given in which date to file remittitur from this T.R.C.P.; Rule
of $500. Jameson Zuehlke, Tex.Civ.App., 218 S.W.2d Enloe, Ry. Terminal Co. &