*1 2G2 costs; interest, any attorney’s diminution in value was attributa fees and lapse depreciation) (ordinary the de- ble to of lien on time
ordering foreclosure September plus day property as it existed on fluctuations values scribed replevy Recovery redelivery Dur against the sureties on to the Sheriff. 1948. and denied, ing Har- replevy mortgagor defendant such is entitled interval bond property possession property, to Sheriff having returned of the inclusive kins Hyde, days judg- proper ten date user. Laseter v. Tex.Civ. Decker within App., Ann. pursuant mortgagor ment to Art. Vernon’s S.W.2d 388. “While Civ.St., replevy Texas Proce- and Rule Civil sureties on his bond are not now property mortgaged per for mortgaged dure. Value of the liable reasonable use of sonalty, judgment, replevied there- by mortgagor fixed at on date of and and de $80 by days in due after it was sold course livered within ten sheriff after duly judgment amount was mortgagee sheriff for for on notes secured $70 by hands, mortgagor’s credited on the debt. while in mortgage, thereof, they nor for fruits and revenues findings of of law In fact conclusions liable in value for reduction thereof requested by appellant, the value court fixed period during such because of abuse in property mortgaged as of date of jury.” Dunbar, Baum Tex.Civ.App., $322.50, replevy value on of trial at date 643, syl. evi- $80; finding further was no there by plaintiff “presented showing dence words, being In other evi no the automobile trailer other damage to any dence tending to show abuse same than reasonable wear tear on property rightfully in defendant’s time of execution of the from the possession, properly court ordered plevy ten- to the date of trial and bond discharge of on tender sureties thereof question property in der days by within the ten allowed judg said County, done Sheriff of Dallas which was ment. Commercial Securities Co. v. days (10) within the ten allowed Thompson, Tex.Civ.App., accept- property herein. judgment is viewed as not inconsistent with the cited consequence, ed the Sheriff.” cases holding. Judgment and this matter of law that court concluded trial court is affirmed. replevy bond sureties on should be dis- prop- mortgaged tender of the charged
erty. point appeal is in the reflected The sole recited; appellant just conclusion
court’s sureties that said are liable
contending ($322.50 $80.00), less $242.50 sum in the refusal to assigns error court’s BREWERIES, GALVESTON-HOUSTON against the sureties render nc., I NAYLOR et et al. v. al. such amount. No. 12345. (de obligation of Harkins Appeals of of Civil Texas. Galveston. Court re- fendant-principal) and sureties on his April required (old plevy Rule 705 bond property 6853), to have the forth Art. May 15, Rehearing for On Motions court, the decision of the coming to abide Rehearing Motion Second Denied injury it re- damage or since was without 5, 1952. June Corp. plevied. Acceptance Motors General Guaranty Co., Fidelity & Tex.Civ. S.U. carefully 1029. We App., 48 S.W.2d testimony plaintiff adduced read damage property to the alleged
bearing replevy ample find period of during decision that there the court's
warrant Rule; meaning of the within none *2 Barker, Armstrong, Bedford
Barker & Lambdin, (Owen Galveston D. Barker & Lambdin, D. Galveston, Griffith counsel), appellants. for Galveston, Stubbs, Markwell & Kelton, Miller Strasburger, Price, & Martin, Dallas, appellees. CODY, Justice* appeal judgment This is an Naylor, Henry damages for death Joe intersection Jr., met his death in an who which he collision being driven driving and a truck-trailer Mazzucco, employed appellant who Breweries, appellant Galveston-PIouston p.m., about 9:20 The collision occurred Inc. west about mile November Sugarland the Houston-San Antonio The the de- awarded highway. $10,000 $30,000 apiece widow ceased’s children. The three to each minor expenses funeral cost reasonable stipulated counsel. highway, Houston-San Antonio occurred, point where collision con- two, parallel, double-lane, concrete
sists of separated gently- highways which esplanade. sloping, 55-foot wide highways of said two is tech- southernmost ITig'hway 59, as U. known nically S. High- as U. northernmost known S. point highways At this 90-A. run west, approximately east consequently Houston traffic bound eastern moves Highway traffic moving over whereas toward Antonio westward San moves The deceased Highway over 90-A. Highway 59 to-ward Houston when the collision occurred. Mazzucco portion on that 6 which present highway. Antonio We here San 59 when collision intersects Highway High- sketch shows how graphically occurred. up respectively joins *3 6way with Galveston originates in 59 and with 90-A. the Houston- up with joining terminates High- approached (B) That as deceased sketch from the It will noted under not have his way did 6 he High- -traffic 'receives Highway 6 proper control. it westerly prong its appeal from its Highway 90-A Appellants predicate traffic feeds here concerned easterly prong. points. Highway 6 ex- westerly prong with pled defense, As an affirmative may the de- afforded it cept insofar as his auto- the deceased was thereon off to turn opportunity ceased the influ- highway mobile intersection reached before he intoxicating liquor, in violation ence of occur- easterly the collision prong, where that this con- Penal Code Article here that traffic added might be red.-—-It *4 the collision. a cause of proximate stituted not move does bound which is Houston appellants’' evi- The admitted court portion 6. Highway this of over allegations support dence their appellant Mazzuc- undisputed that It is operat- and was then there deceased the intersection he reached co—before of Penal violation ing automobile in his Highway 6 prong easterly made This evidence Code Article truck to a Highway brought his 59— headings, under review in their brief ap- lights two stop. full He saw liquor coke bottles “(1) The [found automobiles, which were one proaching minutes some in deceased’s automobile 30 lights automobile. of deceased’s alco- “(2) The odor of after the collision]” large, one, loaded h'eavily truck was a hol”, Nay- test” “(4) The blood “(3) appeal disputed it is not on ( driving lor’s the car.” manner of jury’s evidence to warrant sufficient Appellees turn, likewise, review negligence convicting in the Mazzucco of pur- such no good evidence. We believe following particulars, each of pose in reviewing would be served this proximate found to be a cause: evidence as we deem it sufficient to have keep (a) That Mazzucco failed to a supported the verdict either to—as proper lookout at time drove the he deceased, whether the the occasion in Highway into truck and across question, influence intoxi- under the (b) That he failed have truck un- cating liquor while he was his auto- proper der control. court, evidently mobile. The being (c) That started to at the drive time opinion that the inquiring whether issues — his truck into and 59 across his deceased was automobile ap- automobile driven deceased public highway, a influence closely so as to proaching 6 con- intoxicating liquor, whether stitute an immediate hazard. proximate same cause a the col- issues, merely but lision —were not ultimate (d) That when Mazzucco started evidentiary, them. declined to submit stopped position truck from its and at- tempted Highway 59, across de- drive Upon principle believe the learned ceased’s within such automobile was dis- right. trial court was In 38 Am. Jur. of Highway tance 6 as should have in- stated as the rule is follows : ordinary prudence, dicated to person a “Intoxication a recovery defeats forth, that not and so his -truck could make plaintiff negligence only so safety. such movement with far it affects the care which he takes jury the deceased of negli- convicted safety. Thus, for his own particulars, gence following in the each of plaintiff’s intoxication is admissible, proximate not was found to be a establishing not as negli- contributory cause: gence unless it in itself shows that (A) keep degree That deceased failed to was in such drunkenness as to proper passing for automobiles cause over loss of control lookout muscles and senses, Highway 6. but circumstance to be act, perform forming failing some determina- jury in their weighed by the prudent act, ordinarily some which an or not the issue whether tion person performed. Houston ordinary care for would plaintiff exercised 613; Reason, Ry. T. & Co. v. C. safety.” his own par. Benoit P. 203.” S., Negligence, C. § See also 65 Am.Jur. J. 798; Sup., Wilson, Tex. S.W.2d page 784. 628, 156 Gardner, 137 and see Tex. Scott Article By Penal Code force 141 A.L.R. upon a person operates an automobile who damage suit, sought In a a defendant is influence of in- highway under the civilly. to be If held liable he can show liquor, is State answerable toxicating reasonably prudent per- he acted prosecutions for rhurder or criminally. son have under same or similar would out fatal arising negligent homicide circumstances, justified he has his con- accidents, the accused where practical is reason for duct.—There the Article in charged with violation evidence of holding that intoxication is Appeals Criminal question, Court of merely evidentiary present does charge ato is entitled the accused holds that say, an ultimate issue. That is to if the operating his he was to the effect if *5 negligence any evidence shows act manner prudent in the same as automobile cause, plead proximate been which has sober, entirely though cannot he were would be reversible error for the court it negligent of murder or homi- be convicted in- to refuse an issue thereon to submit State, 356, Long cide. v. 152 Tex.Cr.R. an dependently of issue of intoxication. 303, Id., 154 Tex.Cr.R. S.W.2d But, act in- if that resulted from itself 366; State, Burton 229 S.W.2d toxication, might, it well it would un- as be on rehear- ex.Cr.R. just submit the matter under two same Appeals fully ing. Criminal The Court of guises. different recognizes that, is a where there causal the intoxication the connection Appeals The 'Commission of sustained a driver and the death automobile of a of an judgment upon which based finding was a deceased, guilty the accused is murder or that intoxication while an auto- negligent But we homicide. as the read upon public proxi- mobile a highway awas opinions Appeals, Criminal of the Court of cause, Smith, mate in Peveto v. the term causal connection is not in used 308, 133 S.W.2d But it in- not proximate the sense as cause in civil same frequently happens evidentiary that issues cases, signifies if that intoxication but objected to, are not and are submitted to driving while is a con- so an automobile jury. appears This to- have been what may well factor which be short tributing happened case, in that point because the proximate cause, then criminal was not there raised. guilty
laws the is of murder accused recent case Cotton Western negligent homicide. Mayes, Oil Company possible It is difficult see how it can be Civil Appeals Eastland Court of has intoxication, very fully is state or ably question. which con- discussed this mind, itself, qualify original in hearing concluded, dition of and of On the court injuries primarily authority upon cause of proximate which of Benoit v. Wilson, supra, negligence, may which that acts of intoxication was not flow from issue, may explained be the in themselves result of ultimate holding not by case, induced in the want intoxi- the Peveto much same have, srtpra. Upon Supreme has recognized Court rehearing, cation. Our position. held reversed it has “Evidence intoxi- court its this where think —We alone, right cation, not court was standing hearing. does establish Cer- by proximate tainly is negligence or cause. that which nature an evidentiary There must other issue cannot be made misconduct sufficient to an ultimate by evidence of issue establish, preponderance calling it merely injustice the evi- such. And no person is dence, guilty per- treating that was done intoxication as evi-
2f>7 boys take father those allowed to dentiary, jury for the drunk, I tell passing down that dead highway into consideration such condition you they not en- negli- that under the truly issues of law ultimate on what are anything.” titled to gence. argument objected to as duly err re- not that court did hold prejudicial jury of informed issues re- fusing submit indicated over- The court effect of their answer. quested appellants. objection. ruled the that The record in this case shows which appellants evidence Here offered heavily their relying were jury to enough to cause the strong the deceased was affirmative defense that were find that acts of the deceased certain contributory only guilty negligence, not vigorously complain negligence. they And guilty violating Code that he was Penal jury findings that same were proximate Article that same was a proximate great causes, against were cause, guilty but also the deceased Appellants pre- weight of evidence. particulars driving in various of reckless theory that the sented case their To sub proximate were causes. proximate cause the collision was they allegations have intro stantiate alleged Penal violation the deceased of duced, great length, In the state of Code Article concluded jury reasonably could have cord, jury opinion it is must our under the that the deceased was influence any act concluded finding that a liquors oper he was intoxicating cause, proximate the deceased public highway. upon a ating his *6 drunk, was a that the deceased finding held, authority under While we have the of thereby appel- a that finding and be would against appellants Wilson, supra, Benoit v. anything. lees were not entitled to present right to their de on their asserted to the think the court’s refusal instruct Penal Code Article of the violation of fense jury argument the not consider to only issue, case that not 802 as an ultimate Equip- versible error. See v. Office Smerke ad that evidence intoxication is holds of Co., ment right jury “had the missible, but that the points argu- all other We have considered of his intoxication to consider the evidence by appellants; ed we that none of deem all other material evidence and with along presents error, and reversible we deem them the issue as determining circumstances in findings respect jury’s the to that with deceased disconnected the to not whether are not damages excessive. pipe at wall. Evi gas the the hose from given, For the reason we reverse the an evidentiary dence is intoxication fact of judgment, and remand the cause for a jury, or trier the be considered the to of trial. new per determining or not a facts, whether in Appellants On Motions of contributory some act and is guilty son of of Appellees .Rehearing. the but intoxication negligence, fact of the deceased would not convict alone We have concluded that of hear- negligence.” (Emphasis supplied). ing holding following we erred in the special requested appellants to issues appellants were entitled have the were merely evidentiary in submitted passing into consideration and jury to take acts, issues, not to-wit: the evidence ultimate upon deceased’s the (1) whether deceased of intoxication was operating offered which upon public highway a vehicle a safeguard jury motor usual the influence of intoxicating effect while under informed not be of must liquor appellees’ at the time he argument, injuries, sustained his closing his answer. and jury: stated counsel proximate (2) whether such act was a put cards on going “I am injuries. cause of his you you. If be frank with table and guilty in- deceased were speculation and If believe upon his public and automobile a that this woman’s ferences husband ordinarily per- prudent person in have highway while under the influence of would guilty in formed before he could would be be found liquor, such act toxicating contributory negligence have would would violation Article 802 and of P.C. recovery. per words, defeated a held a In other negligence se. And constitute prudent person jury not have reasonably evidence before the could anticipated that jury becoming act of mere authorize would intoxicated, alone, everyone remaining standing and like deceased, so concluded. —The explosion in else, knowledge taking would result charged gas “that an place in where deceased was dangerous an driver to the room it is intoxicated spending operate night result in his death. motor the streets vehicle intoxicated, highways, pedes being mere act of in and dangerous only to itself, alone, not de- occupants standing trians but is other vehicles nounced P.C. Article But it with the intoxi well to ride those who public act Rice, Sup., driving Tex. cated driver.” Schiller etc., highway, the influence of while under liquor that intoxicating is so denounced and Supreme In the case Court held cited thereby negligence per which is made se. voluntarily that the act guests expect- It was because act could be such an in a motor vehicle under knowingly riding proximate injury ed to be the cause of circumstances, was, indicated P.C. Article 802 was enacted. Proximate law, proximate matter cause in- necessarily cause is not the immediate or juries by them reason sustained nearest cause. where intoxication re- And intoxication of It would the driver. nec- keep sults of a driver to failure essarily person that the act follow proper lookout, proper control over upon a public high- motor vehicle driving automobile, then act in an in- in violation of Article would P.C. proximate toxicated be the condition would any injuries proximate cause be the cause. light all of the attend- received “in if injury ing circumstances was such *7 independent was The deceased an anticipated reasonably ought to have been adjuster, 'Corpus insurance who in lived Galveston, consequence of the act.” aas was Christi. Mr. Mott an insurance ad Bell, 104, A..Ry. v. Tex. H. & S. Co. 110 juster lived in Houston. who The deceased 391; 390, 700, 30 216 S.W. Tex.Jur. adjusting did in also work Houston. While there cited. cases Mr. on the witness stand Mott was asked to holding average year We based our state net income for the his question objected hearing, Appellants in in that issues were 1949. substance the issues, and not ultimate that insufficient of com evidentiary pri showing was parative marily similarity Wilson, of volume the cases Benoit Tex.Sup., business of Mr. Mott and of deceased to 239 S.W.2d Scott admissible, Gardner, 513, make such evidence and same earnings 50. was not best evidence 141 Benoit case of A.L.R. the evi of admissibility that met of the deceased. evi dence showed deceased his judge explosion determine, for the to dence is gas reason of an death weight jury. staying which was concern lie and that the room in However, we that there time, deem was insuffi he was intoxicated similarity expressly pointed of the showing out cient condi Supreme Court that intoxication, Mr. Mott and the tions de standing condition their business for alone, to ceased conducted negli insufficient establish was any earnings true light Mr. Mott to cast proximate cause but there or must gence earnings on the amount of the de of other misconduct sufficient be Louis, Ry. St. by preponderance ceased. See Southwestern of evidence to establish Ball, Tex.Civ.App. 287, Co. v. S.W. performing some act guilty that he showing what a perform 879. The bare doctor some act to which an failing practice his lawyer makes from OF BANK NAT. FIRST et al. v. MORRISS remote too' profession in Houston would et al. MISSION earn- what the to to be admissible establish No. activity engaged a similar ings one in- So, respect to Corpus with Christi. Appeals of Texas. Court Civil adjusters. surance Antonio. San 26, 1952. March a witness Publicover was Mr. appellees. It was he May Rehearing Denied de-; automobile -of behind the appel testifying, ceased. When testimony impeach to sought lants his speed at about going deceased asking per if he did
of 45 hour miles at the
not tell Lieutenant White scene passed deceased him accident that had speed shortly very high rate of
going at a
before the accident. The evidence showed given a
that Mr. Publicover written had day. next This
statement the officers the
statement, plaintiffs’ which is referred admitted, subsequently exhibit No. thereof, exception paragraph with the ground sought impeach prior in showing witness opened thereby
consistent declarations and prior
the door con to the admission statement,"
sistent written statements. The admitted,
so contained declaration thirty a stop come had about truck
feet con sharply testimony appellant
flicted
Mazzucco, driver, truck testi whose
mony placed stopped-position much
nearer At the trial Mr. fix
Publicover such distances. *8 could
So much exhibit contained his said stopped-position
statement of of the appli
truck under the admissible exception hearsay
cable to the
rule, attempt there had no been to im
peach portion of Mr. testi Publicover’s
mony. fail find from the statement objection call specifically facts this of the the attention court.-
ed
objection the paragraph which the appears hearsay, prej
declaration
udicial, not, think, sufficient.
Appellants’ grant- rehearing motion extent indicated.
ed to hereinabove hearing rendered
will remain unaffected. rehearing is
Appellees’ motion
fused.