*1
991
judgment extends
years elapsed
More than
estoppel
“The
of a
four
between
they
27,
the time the
judgment,
rendition
to the facts as
were at
on June
legal 1938,
rendered,
judgment
partition
the first
and the fil-
suit
parties
rights
12,
fixed
this
and relations of the
as
suit on November
1942.
new
by the
so determined. When
facts
R.S.,
our
5529,
Article
is
suit, fur-
intervene
the second
facts
before
applicable
. Appellees
proceeding.
this
nishing
a new basis for the claims
de-
plead
did not
judgment
that said former
respectively,
parties,
the is-
fenses of
void,
they,
nor
pleadings,
do
their
same,
conse-
longer the
sues are no
modify
seek to
judgment.
the terms of said
quently
judgment
in-
former
cannot be
This proceeding
by appellees
is brought
estoppel.”
as an
voked
for
purpose
parti-
causing
to be
tioned among
parties
the interested
an in-
judgment
ejectment
Sec. 656: “A
terest in
question acquired by
land
except
against
conclusive
defenses which
them after the
former
rendition of said
might have
made in
does
been
the trial.
It
judgment. Appellees’ cause of action did
deprive
right
acquire
not accrue
judgment
until a final
title, and,
new and
having
done
distinct
competent
court of
jurisdiction
ren-
so,
prejudice
it without
assert
dered that
purported
will of Mrs.
former suit.”
White and the order
admitting same
Therefore,
law
applying
rules of
probate were void.
judgment
When said
forth,
judgment
hereinabove set
ren
final,
became
then,
not until
did title
partition
dered
the first
suit could not
appellees
vest in
as heirs of their deceased
estoppel,
res
afford the basis for an
or be
mother to an undivided
interest
adjudicata, as to the title to said land sub
land
owned Mrs. White
at
time of
sequently
appellees
vested in these
heirs
Appellees’
her death.
cause of action did
of their
a
judgment
mother
a final
until
accrue
title to such additional in-
competent
jurisdiction
court
was ren
terest was thus vested in them. Until then
declaring
purported
dered
Mrs. White’s
they
legal right
had no
on
pred-
nullity.
will to
Black
Judgments,
on
icate this suit.
656;
Ed.,
609,
2nd
secs.
Houston Oil Co.
For the
stated,
reasons heretofore
each
1078;
Stepney, Tex.Civ.App.
v.
187 S.W.
appellant’s
assignments of error is over-
Dunn,
320,
Tex.Civ.App.
Easterwood v.
ruled and
judgment
of the trial court
285;
Hale,
Tex.
S.W.
Wooters v.
things
is in all
affirmed.
725;
513, 515,
Lewis,
3 S.W.
Lambrecht v.
988;
Tex.Civ.App.,
J.,
240 S.W.
26 T.
376;
Stephens,
Parker
Tex.
sec.
v.
Civ.
878,
881;
App.,
point p.
48 S.W.
R. B.
Godley
Co.,
Slaughter
Lumber Co. v. C.C.
801, point page
202 S.W.
802; Connolly
635;
Hammond,
51 Tex.
Connoly
Hammond,
11, 21;
58 Tex.
Co.,
PAGE v. LOCKLEY.
Rogers v. Southern
Pine Lbr.
48,
Civ.App.
ure of vided, however, objection to such fail- in such The issues involved look-out. ure shall suffice respect in such if is- recovery, well as all defensive ground of sue is one upon by relied the opposing submitted, were of found favor issues plaintiff. * * * party. judgment, the sum From $1,500 $1,674, based to extent of of “Upon appeal independent all grounds and to verdict the extent $174 said of recovery of or of defense not conclusive- by finding judge, made the de- upon a ly established under the evidence appealed. has fendant which no requested given issue is shall waived; be deemed as but where such In our verdict is not ground recovery of or of defense consists challenge ground on subject of more than one if one or more “quotient” verdict. The evidence of necessary issues to sustain such justified conclusion that there was ground recovery defense, or of and nec- agreement jurors of the the result essarily thereto, referable are by submitted dividing twelve sum jury, to and answered damages juror one or favored each amount omitted, more of such issues are without constitute verdict. should While such request, objection, not, think, there is agreement an we neces support finding thereon, evidence to sarily express agreement, might be an * * * independent ground. an shall An or issues inde- such omitted pendent ground recovery undoubtedly in such by the court be deemed as found means ground independent judgment.” manner as to grounds, any. independent ground As pre here Under the circumstances no issüe was submitted or re- provisions sented, above-quoted quested submitted, to be objection nor was ques interesting suggest a number Rule made to failure or refusal to submit the briefs. What tions dealt with any issue “necessary sustain ground spe recovery?” More “ground is cifically, recovery” “necessarily refer- .and/or damages (alleged is the claim for able ity Hence, thereto.” assuming the valid- expenses incurred $250) consisting of at Rule, think, of said pro- under the hospitalization, a for medical services visions Rule, right to recover so, recovery? an inde If is it ground part the $174 as of the damages not be- recovery? It affirma pendent ground of ing conclusively established the evidence recitation in the tively appears from a as above shown was waived. If this were included be judgment the $174 error it could be corrected right judge cause considered reformation. conclusively had been established thereto The court (so called) submitted is- by the evidence as to the evidence. The *5 sue of accident, unavoidable as follows: and neces reasonableness of amount you “Do preponderance find from a of expenses sity incurring was of the evidence that the collision was not All evidence was either evidence. the result of unavoidable (ital- accident?” witnesses consisted that of interested ics ours.) Accompanying same was a defi- evidence, opinions, Opinion of or both. nition of the term “unavoidable accident” admissible, only raises an issue of as “By .follows: the term ac- ‘unavoidable conclusively establish but does not cident’ as used charge in this is meant an Louis, & St. B. M. the fact. Simmonds v. "event happening suddenly and unexpectedly 332; Co., Ry. 127 91 S.W.2d without the foresight or knowledge and Tex.Civ.App., 131 Thompson, v. S. Crow without fault or negligence part on the Coates, 1064; Tex.Civ.App., Guinn v. W.2d party either Tex.Civ.App., to this Objection law suit.” 621; Hodges Hodges, 67 v. S.W.2d was made to the definition to 779; the effect City Big S.W.2d 11 that it incorrect, in that proper Fletcher, Spring Tex.Civ.App., 156 v. S. definition was as follows: “An 316; Bernard, unavoid- Bridwell W.2d Tex.Civ. able accident is an happened accident that 981; Metropolitan Life App., 159 S.W.2d without the negligence of either party Funderburk, Ins. Co. this law suit.” The pleading which 132; ten- Oil Ref. Co. v. S.W.2d Octane Blank dered the issue allegation was an Co., de- enship Antilley Implement Tex.Civ. fendant’s answer as follows: “This 885; Gulf, De- App., 117 & S.W.2d S. F. C. says fendant if the accident was not caused Davis, Ry. Tex.Civ.App., 225 S.W. by negligence Plaintiff, of the then said accident was an accident, unavoidable as court, notwithstanding But in the driver of said was in way taxi concluding our was in error blame for same.” conclusively the evidence established that Under damages, the definition given by additional to the dam the $174 court the issue was the same jury, it as if found does not fol it had ages been stated as you follows: Do necessarily find that defendant has the from low preponderance a complain court’s action right collision was provision not the result of an regard. Whether under that- accident happened suddenly and right unexpectedly Rule been $174 said has foresight without or knowledge by plaintiff, right to com and waived without negligence fault or part on awarding action in re plain of court’s party either to this lawsuit? covery thereof has waived Under the been defend ant, by defendant, definition contended upon for depends whether not the claim was the same if it damages independent issue as were as this of' is an fol item you assume, preponderance a recovery. lows: Do find from We ground of shall pf the evidence that the deciding, such claim collision consti without happened ground the result of an accident within tutes meaning negligence If without either of said Rule. it constitutes a party pleaded recovery, this lawsuit? Neither then we ground of have no doubt dence, un- it from consisted the fact not result alone of did the collision was, there- the taxi-driver did The issue not see automo- accident. avoidable was, collision, the bile prevent under in time to evidently fore, stated issue the following testimony same of the taxi-driver: was the assumption that only difference pleaded, “Q. If this other car one in which [the plaintiff. upon the burden Plaintiff sitting] cast on light had -had court, by the given Under the definition it, you could have A. seen it? Yes.” plain- upon the cast greater burden There was a conflict direct in the testi stated, issue, as to establish in order tiff mony as to whether lighted. the car was had the case have been than would Upon a different from those now un suggested the definition given court found, der jury upon consideration the given, definition Under defendant. evidence, plaintiff conflict of did simple show- awith rest plaintiff could park car driving not result did collision ing street without a light shining rear on it or the defendant. himself negligence plainly “so to visible under normal show necessary further go It was atmospheric conditions for distance unex- suddenly or happen it did not less than 500 feet to the rear of said knowledge, forethought or without pectedly vehicle.” Such finding properly cannot fault, any (oth- if’ without that it was any given effect as is party. either negligence), of er than sues now under consideration. The see, can respect, insofar no essential also found “just different issue that plac- the effect have did the definition prior to the collision the driver of defend plaintiff, upon the burden less ant’s taxi lights blinded effect have the respects it did in some coming opposite car Nei direction.” We, upon him. greater casting a findings ther of these as such to or add conclude, reference therefore, without any, detract from the support *6 given or definition the correctness ing the issue that the failed taxi-driver could defendant suggested, that the one keep to a look-out. recently As had we by definition the harmed been have say, occasion “In considering ques to a given. of tion the existence sufficiency of evi discussion, all oth- we overrule support dence to particu a verdict Without a first, defendant, except the points properly lar the entire er evidence is of no evidence contending by there was to be any considered con unaffected - keep prop- a to finding the taxi-driver clusion or jury upon of failure of second, was there look-out, independent er (Italics sup issues.” now negligent Braswell, was plied.) that said driver Dotson no evidence The keep proper look-out. failing to a S.W.2d 986. “Such “Proper Look-out” defined court ways open There were two to person reasonably prudent as a a look-out plaintiff discharge pro to of or similar kept same under the have would ducing preponderance a of evidence to- therefore', be ob- may, It circumstances.” keep show that the taxi-driver was not served, way preliminary, by of ing a look-out. One was to direct offer was, points two the above of second evidence to that effect. The other was to effect, The merely repetition of the first. a establish facts which ultimate look-out, accord- keep proper a failure to reasonably fact in issue could be inferred equiv- given, was the definition ing to the presumed. There no was direct evi keep look- to a negligent failure alent agree dence. We cannot to statement Ins. Standard Commercial out. plaintiff’s brief that “The taxi-driver Tex.Civ.App., 76 S.W.2d Shudde, * * * looking testified he was to just ground of his as the front front fender Regardless of whether submitted looking and was issues, down the street toward actual two issues were one or two (Italics ours.) involved, namely, (1) the taxi- where the was.” Did ly Plaintiff look-out, (2) question keep and Was True he asked a doubt was no to fail driver effect, testimony failure, negligence. designed Defend elicit to any, to such if but record reflects no answer effect, to ant, there was contends no finding, plain purport af question. The to the taxi- evidence testimony respect in this was that firmative, After driver’s either of said issues. facts, blind- he could not see car because of it is our the statement
reading lights, position could his own any ing see if evi- conclusion there n car, was no did not see the the taxi-driver looking over down by the street keep- in- evidence that the taxi-driver was keep look-out duty The fender. ing immediately in a look-out. Plaintiff was under duty look cludes the necessity ahead, affirmative producing some front, a distance as at well keeping a look- evidence that he was not implication no carries doing possibly pre- out. He could resurrect the other. failure to do sumption by evidence that taxi-driver any evidence In the absence by lights, was not blinded but there was taxi- failure accounting for sup- possibly no such evidence. He could automobile, may be see the driver port by' pre- requiring no he would exist sumption, such inconsistent as evidence look he was not it because failed to see look-out, keeping with but there ing. In such case the simply such evidence. an en- There merely a evidence, but in itself be no evidence, tire absence of unless the equivalent of procedure legal before-quoted testimony of taxi-driver necessity merely dispensing lighted car had been he could testi taxi-driver But when the evidence. have seen it constitutes some evidence. auto positively not see the that he did fied because see it and could not testimony mobile The on its face shows lights bright by approaching blinded it to be a matter of rather than vehicle, of another motor of fact. If in truth lighted, the car was Empire operative. Gas longer was no how does except that affect the Muegge, Fuel Co. v. & to show wrong? it was How can speak 763, 767, Judge Sipedley, proof S.W.2d showing fact Court, is wrong “It said: have the Supreme for the effect converting state, au by weight of in this settled tending into evidence to show that elsewhere, thority that such the taxi-driver keeping a look pro a rule of Upon but rather out? is not evidence issue to which its assumption’ material, cedure or an ‘administrative consideration is here opin ion, ‘put flight’ think, ‘vanishes’ or is wholly without value. * * * introduced. positive any rate, At as evidence it could '* * * met and when It is not anything not arise to more than a mere weighed rebutting is not suspicion or surmise condemned as evi jury evi or treated dence the mere scintilla doctrine set *7 verdict.” arriving in at a dence leading forth in the case of v. Ir Joske in au settled a conflict This decision vine, 574, 44 Tex. 1059. S.W. discussed, it found thority we but which upon The conclusion which we reach question in unnecessary to determine judgment whole i's of the court volved, Life Ass’n in National Aid re- below should be reversed and cause Driskill, have since 138 S.W.2d We accordingly manded. It is ordered. so Langlitz Muegge decision in followed Co., Tex.Civ. Ins. American National Rehearing. On 484, Eastland App., 146 Hoffer v. S.W.2d appellee’s rehearing motion for his Bank, Tex.Civ.App., 169 S.W.2d National attorneys say “evidently court this did not 275, cases. and or three other two read the case of Southland Life Insurance 450], Company v. Greenwade Tex. eliminated, [138 said With 854”, further, “That S.W.2d and evidence was there that the taxi- what expressly repudiates the doctrine on case The keeping a look-out? driver was not court decided this case and ex which the bur sight must be lost of that fact in pressly rejected doctrine announced establishing pre a den Life Associa of National Aid the case upon the ponderance of evidence was [Tex.Civ.App.], S.W. tion v. Driskill course, we, inquiry plaintiff. In this Although Greenwade [238], 239.” 2d testimony probative value to the attach no cited, it, did examine case was effect of the taxi-driver to the that he satisfy ourselves that only sufficient prop keeping a The effect look-out. case, Driskill proposition testimony erly given his is the elimi to be disapproved in the Green- expressly possibly any existing nation of otherwise question case, different involved a wade keeping a that he case, and that in this one presumption, look-out. Unaided purported ac- to be in collision, Greenwade or fact that the fact of sionally facie, Empire prima & Fuel and with evidence cord with less Gas 763, required 143 S.W.2d than would Muegge, 135 Tex. be the absence presumption. hand, following. On there thought we the other which we were must be inference evidence to reading of However, more careful thereby par- fact and enable particular refer- opinion, with Greenwade ty, so, having doing to es- the burden of judgment ren- ence to the facts dered, fact, prima presump- tablish such A facie. supports apparently it shows may evidence, tion insufficient arise from repudi- “expressly statement to warrant in is- an inference of the fact court de- on which the ates the doctrine sue, hence, being presumption, if the ** made We have cided case this evidence, “annulled”, in itself no or study of the Greenwade a careful “vanishes”, “p.ut by posi- flight” or is that, right- reached the conclusion and have evidence, contrary upon tive the evidence ly understood, that we it does not show before, remains, which was founded question in the have determined issue, insufficient to establish the fact legal instant in full accord with sound case prima hand, facie. On if the applied by recognized principles, often (unaided by any presumption) Supreme Court. of the raises inference fact it is because evidence -and opinion af The Greenwade presumption, in it- remains sufficient expresses firmatively the intention issue, prima It self to facie. establish Muegge case. to overrule the court not follows, therefore, im- there is an then, course, opin true, This consequences portant between difference the oth is than ion no more authoritative by positive the contradiction Tex. er. In the Greenwade [138 contradiction “prima 450, 159 term S.W.2d 858] The such evidence of an fact. inferred “presumption” and the words facie case” positive re- contradiction interchangeably are used and “inference” prima sults destruction of the facie The thing. words meaning the same presumed, fact otherwise are often “presumption” and “inference” imposes upon bur- the adverse hardly can dif But there so used. other, more, proceeding den of presump opinion that the word ference tion, upon penalty do so failure to Mueg as discussed in the the sense having against an instructed verdict 767], 143 S.W.2d ge case [135 contrary, him issue. On the how- is, procedure an ‘admin rule of “a ever, contradictory the evidence of an in- assumption’ which ‘vanishes’ istrative positive, ferred however does not positive evidence to the flight’ when ‘put to eliminate inference from consideration introduced,” something contrary means by the trier of facts in reaching a con- in the word very different from clusion issue. distinction is stated Cor Such ference. pus Secundum as “The fun follows: Juris In the sentence of the Greenwade presumption, damental characteristic of as opinion reading: prima “The facie case *8 distinguished inference, an from is that the receipt due of of the letter made out duty producing fur of former affects plaintiff present in the con case is not merely testimony, weight not of ther clusively company’s rebutted evi already produced. It has also been tending dence to establish it was not re which the presumption is a rule said that a ceived,” (Italics ours,) the of correctness facts, given upon a of state law makes depended statement upon whether which, is a while an inference conclusion “prima equiva facie case” was used as the data means of founded common presumption, lent of a it whether experience, natural . reason draws from equivalent used as of an “inference”. proved.” C.J.S., 31 facts which are Evi presumption, If it meant the same as dence, presunnption 115. The of relation inference, § contradistinction to then idea inference, in their distinctive mean conveyed to intended be happily ings, may facie “prima to since, case” expressed stated as a moment’s reflection (a prima may clear, as follows: facie case in will make there is no thing as present accurately and, discussion partial more presumption, and a rebuttal of a concretely designated therefore, prima speak as facie no reason to of its proof issue.) hand, of fact in A conclusively On rebutted. the other party having enables a “prima the burden of es facie case” was used in the sense it, tablishing provi- to prima an issue proof establish facie a fact
999 escape in- There us from warranting an seems to to be no only made course, then, quoted noth- conclusion that if in sen- of such ference “prima conclusively tence if rebut- the words facie case” were ing less than evidence in- express meant to of an warrant idea could ting such inference presump- ference in contradistinction to a as one determining court law, tion, opinion supports proposi- then deter- leaving for the rather than Further, contrary long in- tion to the line of cases jury. mination of the plain- any used above cited where “prima case case” dicative that facie tiff offers evidence to raise concept sufficient express of an to inference is the of the fact in issue which presumption, contradiction from he has the prima establishing, burden of adjective qualifying use A facie. rebutted, presumption is not but remains presumption, consid- in the sense here verdict, support jury’s found ered, prima facie. imports idea of itself therewith, speak of accordance unless the defend- tautology In such it is to sense merely positively, ant not contradicts prima presumption. facie conclusively pre- disapproves the otherwise that the is other There interpretation sumed fact. Under such an in the “prima was used term facie case” proposition the true pre inference, rather than sense of true sumption, merely be that a “affects duty otherwise the testimony”, because producing further com implies on the that the burden was practical effect, but in shifts prove conclusively pany (defendant) to proof upon to which it relates The bur received. that the letter was not opposite party nega- to establish the fact upon plaintiff den was to establish tive fact in issue. If, there was received. 'that the letter There is much more presump fore, get rid order Greenwade indicating part received, im there was tion the discussion presumption (as relates to a burden of posed upon defendant the distinguished from inference) part proving conclusively that the letter (as relates to an distinguished inference received, shifting of then there was a presumption) from a recogni but without plaintiff burden of the the defendant. tion of meaning difference in the Nothing is better settled illustration, the words. For is said: jurisprudence of this state than that agree “We company’s contention proof upon an burden of issue never the shifts from one presumption, such, that a evi is not Clark to the other. dence and that it vanished as such in view 356; Hiles, 141, 2 67 S.W. St. v. Louis, Tex. * * of the opposing evidence Here etc., 479, Burns, R. 71 Tex. evident recognition is a of the attributes of 467; Pettigrew, 9 S.W. 321, Scott Tex. presumption, inference. Then agree 161; Steiner, S.W. Jester company’s contention with which S.W. oth numerous ment is signified thus is stated as follows: Supreme er decisions of the Court. We company’s contention, “The reduced must assume feel that we that there proposition substantially form as stated in (none being discussed) ov no intention application ‘presumption the the error, for writ of is that errule these decisions. of fact that the mailed letter was received’ One other consideration would vanished when seem its evi entirely tending dence received, conclusive in show the be view that letter was not Although, was introduced.” and not so inference see, presump- far as we can very If the effect of the impose this is was meant. conten *9 upon agreement just the tion to which the had tion was to been ex pressed, get reply rid that the in order to of it immediate defendant offer was: “Such conclusively rule, show evidence to that majority is not the not the certainly and is letter, rule in this State.” not receive the Here is clear he did issue, ly evident there would be no mistake of understanding conclusive some expression, both, jury, necessity submitting it the but or to made still more contrary improper by citing it would be to manifest as the first two on the do so. authori Such, however, Muegge Langlitz was the con- ties the case and Co., Amer contrary, On the the hold- ican Nat. Ins. clusion reached. S. raised, by ing of fact W.2d the latter court. was that an issue was this In the case, fully making Muegge for determination of corroborative of said case, in jury. contention the Greenwade the it was state, by is, was question in this based. The “It is settled such said: would elsewhere, evidentiary facts, authority longer weight no the aided the presumption by any but rath- presumption is not evidence other be such rule, ‘administra- sufficient to procedure prima or an establish er a facie the is- 'put Surely, sue? seem, is it assumption’ which ‘vanishes’ or would be tive there can the no evidence to flight’ positive opinion upon reasonable when difference of to proposition ef- the The declared contrary pre- but is introduced.” if for the sumption to the own- the presumption as evidence fect was “The which it was regis- based the ership arising prima from the truck insufficient to establish issue, as use facie the presumption its the to then the tration and rebuttal and consequent ditching machine aris- transporting presumption the elimination of the in remained, such evidence permit regarded before, still are not to the in- from sufficient fact or issues of itself to having prima mised issue establish facie the determination, pre- Only by if issue. plaintiff’s jury’s produc- for the rebutting ing by positive more sumptions met evidence were could be raised poses this ours.) This determination proof.” (Italics jury. If three an- and a half question: quarts meant said pints What was and two are contention; required or, in company’s gallon, pints make a swer to the and two why destroyed, words, it declared will the three and a half quarts rule, cer- majority and is gallon? nevertheless make the If “Such is merely ? Was evidence tainly support in this state” the rule sufficient to re- same rule referred to the insufficient in the ab- rule so sence of the positive prima garding the effect establish issue, which the facie the presumption, of contradicting be with- drawn, “It will had said: not such Muegge case evidence still remain state, insufficient weight prima establish in this is settled elsewhere, facie? presump- authority * * * pro- rule rather tion is The most reasonable construction assumption’, ‘administrative cedure or an’ us, the Greenwade it seems to flight’, ‘vanishes’, ‘put or is is that what was said about the conclu contrary intro- is positive evidence sive rebuttal of presumption, and the ne inescap- seems conclusion ? The duced” cessity therefor, prima referred ato facie referred to rule so able that (or concretely, more prima proof case of facie inference, opinion related to Greenwade issue) a fact where the evidence refer- and that presumptions, rather than raised, presumption, not a but an infer Muegge opinion related to in red ence of the fact Evidence, any, in issue. But inferences. rather than presumptions inference, sufficient to such an the Greenwade reference course, raised required the issue and its assumption mistaken was under jury determination as one of opin- same. The were rules governing absence (if of conclusive evidence afore- agreement ion, expressing after any such possible) were rebutting in contention”, “company’s said ference, or, words, conclusively in other disagree- expressed clause succeeding prima rebutting facie fact agree do not “But we follows: ment as issue. evidentiary upon which facts established, longer be con- pre- could That evidence sufficient to annul Thus make, sumption leave, the facts.” by the trier of does not the evi- sidered unless supported court assumed dence which appears the it sufficient without with the com- agreement qualified its to raise the issue and re- ‘presumption quire perhaps pany’s its submission to the contention —“that received’, letter mailed nowhere better stated than in of fact that Alexander, tending by Judge show while a member of its vanished when received, Appeals. was intro- the Court of Civil letter was He said: imply agreement duced”, wholly “The insufficient to es- —that pre- evidentiary supporting facts engaged that he tablish servant] [the Quite sumption obvi- likewise vanished. master’s business at the his time of said *10 assumption. Of ously mistaken collision. that the with that was a Evidence truck injury presumption belonged which the to the news was committed rebuttal of a the course company that and eliminating effect of [defendant] the evidence have not being in upon presumption regularly driven one the was the facts which “in the absence of evidence evidence to the con- absence the employment, its trary”, supported a a contrary, raised that he the to was not keeping news a lookout. engaged Our was servant view was such that although such time of the issue, the at evidence company’s business alone would not raise Kitts, the such evidence, Bros. plus Studebaker collision. This, the how presumption, Tex.Civ.App., 152 S.W. established the issue prima facie. procedure But when ever, mere rule the is a cab driver testified positively evi positive he when was keeping vanishes a look- out and did not is introduced. see contrary the car to the because he dence was *** *** blinded by such evidence undimmed lights When ap- proaching car, said, the servant we effect positive to the as Judge is Alex- ander said business master’s the case, Shavers engaged supra, not was the evidence injury, the annulled the presumption, the time at and without %t.pon is then the presumption, burden the is the evidence was nullified insufficient evidence to other produce raise plaintiff the to issue the so as to re- quire its ours). Houston (Italics submission jury, cause to plain- his fails." tiff having 64 S. Shavers, offered no Co. News other evidence. na presumption, 386. The W.2d long So as the opinion in the Shavers stated, is is here and effect of which ture case has approval Supreme Smedley in Judge discussed same Court as in the case, Muegge which lat- case, case Shavers Muegge appears ter to be cited approval reasonable Is it of the cases cited. the Greenwade opinion, we feel it our ov interpret the Greenwade to duty to adhere to expressed the views News Co. Houston erruling opinion in original opinion. our implies Shavers, clearly supra, If the made, deduction to be if approval of express if it does any, facts, from the which we considered case, cited Muegge opinion in the supporting presumption, is, in its expressly approval, former with nature, true sumed, presumption, as we as not, and holding? think We reaffirmed its inference, but an are, we never case in the Greenwade if theless, of the mere fact correct, involves its incorrectness that the cab driver did not see the car in opinion. question not mentioned to time avoid the collision is alone no question may be stated as follows: That evidence that the cab keep driver was not upon an evidence case which the In lookout, ing a and even if considered as party which one has scintilla, some it was a mere at establishing preponderance affording most guess basis mere presump raise is sufficient to evidence speculation. issue, but insufficient to of the fact in tion support an inference of entirely There was evidence con (though not positive produces having kept sistent with a lookout sufficient contrary to the fact conclusive) account failure of the cab driv party having the bur presumed, prevent see er to car in time produces upon no den collision, aside from the fact the is upon more by approaching lights. blinded According evidence to re supported sufficient sue testimony, to the cab driver’s driv he was jury? It seems its quire submission speed twenty at a of fifteen or miles in the Green- have been so assumed distance, when, an hour for a considerable before, case, but, the con as said wade lights ap because of undimmed of an n recog failure to was based clusion street, proaching see the car he could not presump between a nize distinction just except down in front his fender. an inference. tion and speed Driving negligent under at a independ alleged original circumstances the instant con- case recovery, every ground of ele that there ent we took view sideration think, was, supported by ment thereof the issue that cab raise issue involving But no evidence. keeping a lookout. We some driver recovery was ground of submitted or in evidence that assumed that the facts objection car made to the requested with which defendant’s cab col- fail on street same. We standing with the the court to submit lided are ure on, satisfy every did lights and that the driver ourselves is cab unable con, might ground of it in the collision see time avoid sue *11 evidence, and by the chuively established ground conclude hence, must provision under waived recovery was ap- Nevertheless, 279. -P.C.R. of T. did driver cab reason pears that col- avoid in time car not see driv- because been may have lision conditions of. view ing too'fast visibility. motion their Appellees un the car speed argue brief in entered properly circumstances der the failure to consideration seems contention This a lookout. keep It isn’t wholly untenable. to us to allege ground permissible for either establish fail to recovery and verdict conclusively or use submission of its. the absence different upon a it to two alleging the By ground.
independent appellee himself recovery, grounds driv questions of separate the elected to failing to speed and negligent ing at a keep lookout. for ac- the motion conclusion It our It be overruled.
rehearing should
cordingly so ordered. al. CO. v. COKER et
WALKER-SMITH 2389.
No. Appeals Texas. Eastland. Civil
Court Dec. 1943.
Rehearing Jan. Denied