Highway Ins. Underwriters v. Spradlin
190 S.W.2d 181
Tex. App.
1945
Check Treatment

*1 is the without the aid of a the court pass upon province judge trial of the credibility of the witnesses given testimony. their If weight to be guilty of actionable fact Rhodes particulars, negligence in above each of the this rec as this court must assume under ord, think trial court was war then we concluding out of ranted the suit proceeding which this arises is based trespass committed each County, meaning within the of the Leon Leslie, venue statute. Moreland Smith, 166 S.W.2d Stroud v. Tex.Civ.App., 119 Brandon Schroeder, Tex.Civ.App., Parker, Tex.Civ.App., 173 Odom v. Martin, Cogdell Tex. Civ. App., 176 S.W.2d 982. Therefore, appellants’ points all of appealed and the

overruled

is affirmed.

HIGHWAY INS. UNDERWRITERS al. SPRADLIN et

No. Appeals

Court of of Texas. Eastland. Civil 12, 1945.

Oct.

Rehearing Denied Nov. *2 Kelton: “Mr. That’s a minute. not Just

proper argument at all. “Judge my opinion. Smith: That’s I have a right my to draw conclusion. “The objection. Court: Overrule the “Mr. exception.” Kelton: Note our We en not to dence want would after Walter gument Exception as follows: another his death. concocted ed pellant’s to hauled men’s was reversible that the defense. of rule Spradlin on March 28, sued ing has ment brought accidental findings that Walter Miller, dren from “Judge Smith: “Judge “Mr. “Mr. Kelton: “Now This GRISSOM, Strasburger, Smith out. appellees’ reversible show it. 1943, ask that appealed. for Neil caused appellant’s by appellant. of Walter was for consider it. have a load compensation Kelton: We of which load mention to support then & contention that Walter while Walter Smith: Appellant’s first an accidental (the day after Walter Dallas, Appellees’ defense. a workman’s The Smith, injury while his you to attorney that be stricken error of the claimants and Justice. gentlemen, another Bromley, appellant contends Spradlin’s The error for the court feed to Midland. death), Price, Holland, Kelton & objection particular part of said ar- surviving have Spradlin, believe that I don’t I— Just of and the you 28, 1943, which caused ask that No certain Anson, to Spradlin sustained an got home that counsel insurance shown in the Bill of to the sustained Spradlin was on Midland on who had compensation apologize question truck, on March to the deceased. widow minute, please. point unloading feed doctors that be strick- effect that a the next is based out, had “concocted” the insurer line; to instructed an appellee. policy is that constitut- argument about it. and That’s a work- to over thing no argued tended March injury work- Judg- upon took say- chil- case evi- day ap is- a it I behind the truth and denounce acts tiff dence, and does not constitute reversible such a conclusion could have been * * there 28th. dence fairly error. an sented. to counsel’s land appellees’ witnesses is tends to show that he was sick on March timony March 28th. The could the effect that Walter Spradlin’s employer es, pretation that we defense. record, cause of action that was meant defense sejtted testimony there was some evidence from which coun- a not clusion, or even sel In Moncada v. The load of feed to entirely Tex.Jur. deceased hauled alleged injury might argued required “no on March 29th. appellees’ not deducible had J. ground to “* The home on of should, His to conclude that to determine. evidence appellant’s argument D. is not never worked after have We true. The assume that charge defense” J. draw such a conclusion. been no different question would be the suit * testimony argument that “some D. think * of shown gone witnesses were from an examination of the required. Appellant Snyder, March Distinguished to and Mrs. counsel is objection them with it had Midland. a witness relative because this was matter evidence support to Midland. The tes tended witness was not. the facts in be a testified that Walter of load of feed If was based it necessary true, nothing been unfair in counsel for it was 29th, appellees’ appellees’ concocted, 137 Tex. said abe power Young, necessary was that day following it.” We think to show that then permitted a “framing” from evidence or Such logical Riley of Walter counsel for telling more appellees’ was sick effect evidence had witness * to Mid trip not the drawn, counsel was to asserts hauled there plain inter- Reed there * * than It pre con- evi pre- evi one. If is a only question impeach- sidered held that since Supreme Court case. witness, jury ment said not be that it could legitimately before the evidence considered two as of an than the other that someone disclosed defendants, special Spradlin. convicts, In answer to issue two who Mexican was behind *3 jury Spradlin the not defense, argument did found that Walter such the did personal pulled sustain an his while injury Our con accidental error. reversible not constitute being up by au truck was the support following hill in the clusion finds Spradlin County “Slim” In to Crosby Cattle answer is- truck. thorities Corn : v. 290; sue jury Sprad- Co., Tex.Com.App., Davis one the that S.W.2d found Walter 25 526; lin injury unloading Yel Hill, did sustain an Tex.Com.App., 298 S.W. while v. Spradlin feed off Baggage Antonio of the “Slim” truck. In of San v. & low Cab Co. 891, appellees’ that Brennan, Tex.Civ.App., petition alleged trial was ref.; Robertson, Spradlin injuries 894, Snodgrass sustained in the v. writ 534, manner in Ortiz submitted said two issues. Tex.Civ.App., 167 S.W.2d Tex.Civ.App., Luttes, 141 to S.W. Without the favorable issue answer Oil v.Co. Wilson, one, number the court would 1050, Presley Tex.Civ. have been re- v. 2d 658; Safety quired judgment to 654, render for Cas App., 125 S.W.2d 500, 492, only strain, The as to in- Wright, 160 or 138 Tex. the ualty v.Co. jury, by Employers Casualty jury the in found answer to issue S.W.2d United from Marr, Tex.Civ.App., 144 number one came the witness S.W.2d “Slim” Co. Williams, Spradlin. ref.; witnesses Tex. who were at Other O’Meara v. writ ref.; the ranch where feed writ the was unloaded Civ.App., 137 Jones they that in un- Howell, Tex.Civ.App., 107 S.W.2d 661. testified effect assisted truck; loading the “Slim” that overruled. Point one is was sick at the time and the re Appellant contends and, not unloading, therefore, did assist jury instruct the the court to fusal not alleged could have sustained the strain Spradlin could be testimony Mrs. certain appealed the judgment the basis of purposes only impeachment for considered Spradlin’s testimony from. “Slim” was to Appellant’s reversible error. constitutes counsel the effect that while Walter was cross-examining Mrs. unloading suddenly he became ill and excerpts her her from three read to had and to lie and could not had down thereafter case, which, apparent petitions in this filed unloading. assist the Whether Walter allegations as to ly, inconsistent contained all, sustained an and if in sustained her husband and when how so, same, whether the he sustained as found testimony that juries. Appellees adduced one, jury in answer the to number issue prepare attorneys her to the employed she unloading Sprad- feed off of while the Slim her, appellant’s that until pleadings truck, sharply ques- were lin both contested pleadings to her she showed the counsel tions Under such circumstances fact. Whereupon them. read not had testimony Spradlin, of Mrs. in sub- Spradlin if she did not Mrs. asked counsel stance, husband told her he sus- her place. During lawyers what took her tell an injury tained unloading while feed off tes cross-examination such truck; gave she lawyers what her told her that she tified that information to her counsel after his her; that her husband had told husband death, together testimony her with that she loose, and that he a came rod said that always depend on what her husband could told over; the truck to have turned liked her, hearsay prejudicial and highly lawyers that the truck accident her she told probably jury to caused the had after her husband suffered a happened give special answer to issue different feed; lifting that she sacks strain given one than would have number lifting lawyers about the and then her told been informed court that had accident; per had that she no about testimony only her was admissible for im- place; knowledge took what “I is, sonal peachment purposes, that that it could my All what I there. know hus wasn’t be considered as evidence of the not- me, always excerpts depend but I could injury. pleadings The from the told band Whereupon, appel admissible. 70 told me.” The evi- what C.J. requested court in counsel dence Mrs. husband lant’s her testimony her her sustained as to an while un- struct told loading lawyers could the Slim told her be con- feed from truck what she prov purpose admissible such as occur need not another and, therefore, injury. trial, an 143. It was not not be will discussed. gestae. properly requested res Appellant re- reversed the cause was in the court at the time manded. troduced of such to limit the consideration Rehearing. On Motion for purpose which it to the sole In appellees’ deference able motion Under admissible. the authorities rehearing, again we have considered failure to so constitutes instruct questions relevant reversible Robinson First Nation error. presented. original opinion, In our we Bank, Olvey al S.W. stated: Jones, 137 Tex. *4 977; Decatur Seed Oil Halsell v. Cotton “Other were witnesses who the Co., 848; Tex.Civ.App., Massie 36 S.W. v. ranch where the feed was unloaded testi- 962; Hutchison, Tex. 222 110 S.W. fied in effect that assisted in unload- Milling Blum Grain Moore-Seaver Co. truck; Spradlin the ‘Slim’ that Wal- Co., 81; Tex.Com.App., 277 17 S.W. Spradlin ter not assist was at the sick time did and, therefore, unloading, in could not have sustained alleged the Spradlin permitted to tes was which strain is of the basis the tify, objection, over that it was appealed from.” hearsay, that she told her em husband’s ployer happened her told her what husband This statement is erroneous and trip injured, on the was withdrawn. The “other witnesses” re- probably employer that said that the ferred to were testifying about un- truck but Spradlin’s what caused his trouble. Mrs. Spradlin loading “Slim” the testimony, that she notified her unloading Spradlin’s the effect aibout at truck accident, employer of Finley husband’s the the ranch where the second purpose showing the no admissible However, truck was unloaded. we adhere injury. Appel employer tice to the of the to our former (1) conclusion that wheth- employ lant had that denied under oath the er deceased Spradlin’s unloading assisted in to Walter er received notice of an truck (2) whether he was statutory period. the No injured within at that time were matters of fact have lim jury effort was made to ited to the for the Sprad- to determine. D. J. purpose it admis which was by lin’s is contradicted the tes- 4 timony sible. Point Bromley is overruled. and other circum- Bromley stances. testified D. excepted Appellant number issue one J. (Slim) reported to him that Wal- by because it comment constituted Spradlin got ter sick when weight in court on more than 70 miles “this side” of the it did assist assumed Spradlin’s ranch where “Slim” truck was off unloading the “Slim” in unloaded, and that neither D. nor Wal- Whether Walter assisted J. truck. ter ever mentioned to him feed from said truck unloading disT alleged strain to have been suffered unnecessary puted. It to determine Walter “Slim” while unloading the whether or not failure said is conform However, truck. objection made re sue to the constitutes judgment was not reversed on account error in view of the fact that versible wording issue one. judgment must for the error be reversed However, view heretofore discussed. Appellees earnestly insist if the respectfully another trial call atten of tion to the we erred failing court limit testi- following authorities : Southern mony of Mrs. as to what her Boswell, 255, 260, 138Tex. Underwriters error, husband told her harmless 18 Tex.Law Review reason that such re- Clack, Emp. Texas Ins. Ass’n Tex.Civ. solely ferred to deceased’s in a App., 112 S.W.2d affirmed accident, truck which the found de- 151,132 South Tex. Marek v. did ceased not sustain. We agree cannot Texas, Enterprises Tex. ern interpretation testimony. with this of the Russell Great American testified that told lawyers She her she Co., 458, 94 S.W.2d 409. Ind. happened truck accident after the presented points by appellant The other lifting strain while the sacks of disposed said, what has been or told them feed. “I about the lifting and all testified She the accident.” then her, told husband her what knew was she what depend on always “I could hut a limitation In the absence me.” told testimony, it could said effect of of the by the appropriated easily been have sustain a did deceased as evidence of feed. lifting sacks while strain overruled. rehearing motion *5 RY.

GULF, FE & SANTA COLORADO CO. McCANDLESS.

No. Appeals Eastland. of Texas. of Civil

Court 12, 1945.

Oct.

Rehearing Nov. Denied Brownwood, Holloway, of Woodruff & Brownwood, appellee. Miller,

E. J. LONG, Justice. McCandless, Appellee, Bruce A. sued Gulf, Fe Rail- & Santa appellant, Colorado $438, the al- Company, for the sum of
way of a box of the contents leged value of Fayetteville, shipped goods household Carolina, plaintiff at consigned to North Texas, Brownwood, which was never de- referred to parties be will livered. Upon trial court. they were in the as herein court, aid of a without the before a trial in favor of was entered jury, the sum of against defendant plaintiff duly excepted and defendant $350, to which court. appeal to this its perfected plaintiff discloses and his The evidence Fay- part of 1943 lived at early in the wife Carolina; plaintiff that the etteville, North place to Brown- from that was transferred Texas, his ef- wood, stored household Storage Victory Truck- with fects Fayetteville, North Caro- Company at thereafter, ; March lina Victory Storage wired plaintiff ship him at Brown- Company to Trucking