*1 average vocabulary scope only susceptible of laymen, and are as such necessary Therefore, one it is not meaning. Pro Roosth & Genecov
to define them. Tex.Civ.App., al.,
duction et Co. White Furthermore, record 140. appellants
does not the tender reveal re substantially definitions as correct Texas
quired Ann. in Rule Vernon’s Procedure.
Rules Civil in the case
Finding no reversible all is in of the trial court judgment
things affirmed. SCHAFER, Appellant, B.
Carl Executrix, Independent STEVENS,
Ruth al., Appellee. et
No. 15853. Appeals Texas. Civil
Court of
Dallas.
July 21, 1961.
Rehearing Dec. Denied
473 *2 pled also She
nary gross negligence. the effect evidence to and introduced Stevens, the time Thomas H. *3 was Executive Vice-President death Corporation salary of Tex-Mex at a $1500 in- per salary prospect month of a per crease in the near future to $2500 month; con- regularly and that he was per tributing from month $800 $1100 expenses. family living as judgment A based on a verdict appellee $253,151.- in favor rendered for 51, allocated as Ruth follows: For Stevens widow, $185,118.51; surviving for Susan Stevens, $29,112; Delinda H. for Thomas Stevens, $36,920; Jr., Stevens, for Ruth Independent Executrix, $2011, as burial ex- penses.
Appellant’s first appeal is that judgment is fundamentally erroneous because of the appellee failure of join plaintiffs, or to sue for the benefit of the surviving parents of her deceased husband. 4675, Art. provides V.A.C.S. that actions Thompson, Knight, Wright & Simmons for damage arising from death shall be for Timothy Kelley, Dallas, appel- E. for the sole and exclusive benefit of the surviv- lant. husband, ing wife, parents children and the deceased.
Witts,
Lewis,
Geary, Hamilton, Brice &
parents
K.
Barron,
Choate and W.
Jr.,
parties
suit,
S.
Dal-
are not
to this
Jim
las,
appellees.
nor
for
is the suit brought for their benefit.
That
were living at the time of the
trial is not
revealed
pleadings
or mo-
DIXON, Chief Justice.
tion for new
It
only by
trial.
is revealed
wrongful
brought
a suit for
death
This is
examination of
facts,
the statement of
pursuant
Ann.Civ.
to Art.
Vernon’s
testimony
appellee
wherein the
is re-
Stevens, Independent
Execu-
Ruth
St.
produced as follows:
Stevens,
Estate of Thomas H.
of the
trix
“Q Where do
par-
Mr. Stevens’
herself as sur-
deceased,
the benefit of
ents live?
years, and for the
widow, aged
viving
30
Stevens,
children,
Delinda
minor
Susan
two
Lafayette, Alabama.”
Stevens, Jr.,
Thomas
years, and
H.
aged 7
cited numerous
has
cases in
Appellant
years.
aged 4
his contention
failure to
support
for the absence
Stevens,
account
H.
or to
Appellee alleged
join
that Thomas
beneficiaries under
23, 1958,
named
August
years, was killed
one
aged 32
statute is fundamental er
Dallas, Texas,
death
City
wrongful
when an au-
Among the cases cited are East Line
riding
neg-
ror.
he was
tomobile
by appellant &
Culberson,
Co. v.
68 Tex.
Red River R.
ligently
against a tree
driven
(1887);
820
Fort Worth
D.
664, 5
&
Appellee pled
S.W.
both ordi-
Carl B. Shafer.
many
held
has been
Moreover
516, 22 S.W.
Wilson,
Tex.
R.
v.
C.
Co.
times,
promulgation,
Mer
both before and since
578;
R.
v.
& A. P.
Co.
San Antonio
when it is-
new rules in
(1907);
tink,
101 Tex.
105 S.W.
necessary
to examine the statement
Co., 148
Ry.
&
Dennis v. Gulf C. S. F.
error,
facts
to discover
Huff
Webb v.
(1949);
rive as he first had to attend a cock- party tail elsewhere. He arrived about Later in this we shall re 9:30 evening. o’clock that pres view the material evidence. For the merely say ent we shall that there is some There nois doubt this meeting was a busi- probative evidence of force in the record appointment. ness quote from Schaf- support the submission of the issues. testimony: er’s being duty That so it was the of the court * * * to submit the issues though even court “Q you called Tom Stevens may have felt that the evidence was in and made a prearranged ap- business * * * support sufficient to an affirmative answer pointment, for him to talk to jury. See Wood v. American Farris, Se you just said to jury? Joe curity Co., Life Ins. Tex.Civ.App., 304 S.W.2d “A right. That is 55 and there cited. authorities overruled. Appellant’s second and third points are evening n “A You men for the n n gathered together purpose [*] of a business n that [*] discussion, you, pursuant didn’t to a says point appellant fourth In his you call made to Tom Stevens? answer affirmative against great No. Issue special Yes, “A sir. preponderance the evidence. weight and n n n n n n point requires a careful of this nature purpose your calling “Q But Tom the evidence. study of just night wasn’t to have Stevens drink, Stevens, friendly social to talk Ruth testified Mrs. Appellee, promote him into the helped organize had Tex- business husband her deal, it? wasn’t of which he was Execu- Corporation, Mex sir, already Yes, Yes, you told “A “A I have would have.
that. “Q right. That It for is best
ij? n n [*] [*] [*] your business, isn’t it? get expected some- you “Q And “A Yes. put to- thing deal if it was out of the broker you were the gether, because “Q your purpose And whole brought you man were the Tom Stevens that night calling him into it? Tom Stevens phone, get company, was to Tex-Mex, him, interested in this “A Of course. mining venture, wasn’t it? expectation “Q You had made profit, money, if could be the deal Yes, sir, “A my that was reason through? go calling him. course.” Of ****** the latter toward “Q promote trying testified But Schafer were talking busi- quit evening him into part of the deal? a social enjoying merely were ness “A Yes. 12:00 closed Skyriders Club visit. The Stevens Schafer, Farris and midnight. “Q already You have testified to go to Trader They decided to leave. that? He hours. later Hank's, operated at *6 “A Yes. talking already quit they had testified activities business, of their transfer and the “Q you thought get And him that to affair. a social purely was Hank’s to Trader promoted deal, into it would be testimony are parts of his However, other best, your language, to use own to not his from quote Again we contrary. to the figures discuss contracts and and testimony: cents, play little, but a dollars and to ordinarily in your language, it? sir, is Now, it isn’t is “Q in the drinks have your business Yes, “A sir. stay together continue evening and promot- purpose of evening for the all n n n ifc sfi # is that cus- * * * somebody deal, into a ing Now, you “Q have said it tomary ? play bit, your is better to a little right? business Yes, sir. “A “A Uh-hum. turned Stevens “Q Tom had he ? night, your down deal “Q playing it this sort of Was “No, sir. you there, you had mind when in were Inn, Holiday just talking n n n n n Ht formal, figures, cents dollars and fact, my busi- matter of As a tonnage, having but a contracts talking quit business ness, good drink, jokes, maybe telling telling or bit a little because playing and start stories, dogs. talking about bird Tom way, friendly that more people become it, dogs, you talked to him about liked each do business inclined to more get friendly, purpose your was other. atmosphere conducive social Well, people “Q want arrangements of asso- ultimate business bit, get them little playing start it? ciation, wasn’t purpose business that has the friendly, it, say “A You could that.” mind, sir? doesn’t preponderance of overwhelming weight and they left when also testified that Schafer wrong. manifestly to be at Stevens’ the evidence as they go Holiday decided Inn he had leased to a ranch invitation point fourth Appellant support of his hunting part county to see some north Tex.Civ.App., Otts, Gregory cites us to v. his again by here dogs Stevens. But owned Huffman, Tex. 904; 329 S.W.2d v. Webb was ranch The testimony consistent. 893; v. Civ.App., Easter 320 S.W.2d Road. at Line Noel Road Belt located on 916; Wallace, El Tex.Civ.App., 318 S.W.2d place at intersection The took accident Tex.Civ.App., Sanchez, City Paso Lines v. Avenue, and Hillcrest Valley Lane View Bynum,Tex.Civ. 396; Young 306 S.W.2d v. east of which is north at Lochausen, 696; v. App., 260 Burt S.W.2d Schafer, pursued ranch. The route v. Rowan 151 Tex. the Holi- leaving after Farris and Stevens 1022, and Allen, 134 S.W.2d on Lemmon day north Inn Hotel was Rowe, Tex.Civ.App., 119 S.W.2d Raub v. (Marsh Lane Lane Avenue and Marsh Avenue merely of Lemmon an extension dis- Highway) Northwest north of Each of the above is to be dis- cases Lane, Valley View miles to tance of several tinguished from the case we have here. for several Valley View Lane then east Rowe, Allen, In Raub v. Young Rowan v. Valley accident miles to the scene Wallace, Bynum, supra, and Easter and Hillcrest Avenue. View Lane relationship parties between the either north they thus led them further route took friendly neighbors that of “each relatives east than further than the ranch and glad happiness to contribute to wel- to Trader route a direct ranch. But was may fare of other.” The fact that located Hank’s, Hank’s for Trader expenses shared trip on the did not Valley Lane View near the intersection relationship. their alter In the case now Expressway. and Central appellant Schafer, us before shown testimony, seeking pecuniary own Witts, attorney David for Tex-Mex profit prospective from a deal. *7 Corporation, and a member of the firm law represents appellee, which testified that Lochausen, supra, Burt v. In it was undis- Skyriders atwas the Club evening that at- puted parties had their that the concluded family tending party. a Schafer and Farris noon, by business the rest the after- were seated at another 9:30 table. About went about their own in search noon devices o’clock Stevens arrived and at sat down pleasure. In the instant case Schafer the table with Schafer. Later the eve- not that the had himself testified business ning asked Stevens Witts to come to Schaf- concluded, part promo- of his been mining er’s table to discuss Arizona the approach ato business deal tional method of joined party deal. Witts for a Schafer’s talking “play” quit business and to towas give opinion while but declined to about for awhile. the Arizona deal until he had more factual Sanchez, supra, v. the In El Paso Lines information. merely in- a social lunch was invitation vitation, a business invitation. As the quote not We shall not further or summarize says purpose main was to eat. the opinion the There evidence. was a conflict in the been to discuss purpose had testimony main motivating as to whether the in- If the stayed parties could better have transporting fluence of Schafer in business instant case the court. In the at tourist Thomas H. Stevens the time of the at the Skyriders be- parties had to leave Club furtherance business accident was the midnight. expectation closed at In Club order deal in which Schafer had cause the their conference pecuniary a continue tangible benefit of nature. another the affirmative their conference to loca- transfer But it our is against so was not tion. answer left, supra, Huffman, Webb v. two brothers is of a give such as to somewhat nature
merely appearance driving took each other of a inter- turns dead end at the work. section. Police Officer Horn testified safely curve cannot a traveled at be Otts, involving a Gregory supra, v. serv- speed in per of 35 There excess miles hour. authority attendant, ice actually station is was no light street at the intersection. appellant. appellee favor stop There sign Valley was a on Lane. View Appellant’s stop stop car did at this Appellant order to argues sign. scene in a The of the accident is there guest take the case out of the statute City residential area in the outskirts of the tangible must been a benefit have of Dallas. agree. appellant. But the flowed to tangible been benefit need have Greenhaw, Police officers both Horn and by payment money actual Stevens trained specialists, as accident both testified trip Schafer; nor need their business appellant’s continuous skid marks If deal. a consummated resulted began car 140 feet ran from the tree dis motive business Schafer’s both past the stop sign. Prior to continu- these subsequent cussion and-The entertainment “skippy” ous skid marks skid there were prospective customer of Stevens as marks. One officer estimated car’s Corpo Tex-Mex from to obtain a contract speed ap- per at 70 to miles hour as it Schafer ration, would net which contract proached intersection, officer the other case is not profit, money we think per speed at 85 to The 90 miles car’s hour. view This by statute. governed guest impact at moment its with the tree Gregory v. cases: supported these per be was estimated to 40 to 50 hour. miles 904; Otts, Tex.Civ.App., 329 S.W.2d speed Valley on limit View Lane was Castillo, Tex.Civ.App., 303 v. Hernandez per A large 35 miles hour. tree located Howell, 508; Tex.Civ. Burnett v. S.W.2d at the corner of the southeast intersection. Smither, 410; App., 294 S.W.2d Johnson striking After tree car Elkins Tex.Civ.App., S.W.2d clockwise, right, whirled to its and came Tex.Civ.App., 101 Foster, stop facing in a ditch southwest on point fourth overruled. Appellant’s right Horn hand side the road. Officer testified that there a blind corner appeal al fifth Appellant’s intersection, being the view obstructed special is jury’s answers leges that hedge corner. on the northwest 7, 9, 23 that 12, 15, 21 and sues Nos. *8 and “in heedless appellant was of conduct Horn testified that the Officer distance others, rights the of disregard of reckless Holliday Inn Hotel to the from intersection Stevens,” against is H. Thomas including Valley and Avenue of View Lane Hillcrest the of preponderance weight and great Appellee undertook 10.3 miles. show is to evidence. appellant’s car this that traveled distance Holiday A eight to ten minutes. waitress at appellant. giv- with But before agree We for a take waiting Inn Hotel was taxicab to review the material ing our reasons shall She her home. noticed the Hotel clock point. bearing on evidence 12:25 it was A.M. showed She saw the east from Marsh Lane men leave the car at Valley View three a time Lane she with to be 12:30 or intersection Hillcrest Ave- 12:32 estimated A.M. toward top road, sitting crowned Another witness said that while on a black but it is nue she narrow, rough bumpy. porch front heard crash and sometimes her Road, against by the tree at a time Dooley curve at estimated a in it car There is just to be between 12:32 12:40 A curve east inter- her A.M. another witness, way nearby, on his Hillcrest Avenue. third home with This latter section curve, stopped at the scene after the accident at a sharply rather which turns to the
479
Civ.App.,
12:45
143;
314
be between
S.W.2d
Webb v. Kar
estimated
him to
time
sten,
114;
certain
Tex.Civ.App.,
was
Bul
A.M. This witness
308 S.W.2d
and 12:50
Co.,
to 1:00
Tex.Civ.App.,
lock v.
prior
Refining
Atlantic
minutes
the time was several
to
way home
289 S.W.2d
of
he
on his
Even a combination
because
was
618.
A.M.
o’clock, so
baby
ordinary negligence
1:00
acts
neces
sitter before
will not
relieve
baby
pay
sarily
sitter
gross negligence.
have
v.
he would not
constitute
Sims
Smith,
101;
99,
Tex.Civ.App.,
another hour’s time.
332 S.W.2d
Ray
Zackey, Tex.Civ.App.,
v.
329 S.W.2d
uncon-
testimony,
above
350;
Castillo, Tex.Civ.App.,
Hernandez v.
troverted, may
time
establish the
508;
Orts,
303 S.W.2d
Tex.Civ.
Wood v.
for which
accuracy
speed
that
elements with
139;
App.,
Mayer
Johnson,
182 S.W.2d
v.
tend
show
appellee
But it does
contends.
454;
Tex.Civ.App.,
v.
148
Rowan
S.W.2d
between
traveling
10.3 miles
that
Allen,
215,
134
1022.
Tex.
134 S.W.2d
ac-
Holiday Inn Hotel and
scene
inadvertence,
Momentary thoughtlessness,
for most
was driven
appellant’s
cident
car
or error of judgment
enough.
Sims
speed
well in excess
way
at
Smith,
v.
99.
Tex.Civ.App., 332 S.W.2d
per hour.
speed limit of 35 miles
There must be a conscious indifference
himself,
he
Appellant
Blake,
testified that
rights
150
Rogers
v.
others.
Holiday
with
area between
familiar
373,
1001;
v.
Tex.
240 S.W.2d
Fancher
where
and the intersection
Inn Hotel
Cadwell,
8,
Tex.
820.
159
314 S.W.2d
appellant was
Since
accident occurred.
stop
stop
sign
Failure
is not sufficient.
though
witness,
testimony,
un-
his
interested
Castillo, Tex.Civ.App., 303
Hernandez v.
no
contradicted,
It did
conclusive.
is not
373,
Blake,
508;
Tex.
Rogers
150
S.W.2d
v.
Nevertheless
issue.
than raise
fact
more
nary the evidence negligence, and only necessary appellee prove It was on his ordinary negligence establish verdict ordinary Appellant’s negligence. sixth part. point is overruled. appel appeal point on In his sixth point com his seventh wording form and in the charges error lant plains heed because court’s definition of inquired special issue No. issue disregard rights of less and reckless motivating influence of de “the whether persistent others omitted element Schafer, transporting B. Carl fendant Smith, conduct, citing Sims course of H. the automobile Stevens Thomas 99; Tex.Civ.App., 332 S.W.2d Bowman * * * a business furtherance of Puckett, other 188 S.W.2d defendant Carl Schaf B. in which deal cases. expectation tangible benefit er had pecuniary nature?” gave following defini- The trial court tion: “expecta- says the word Appellant misleading and confusing and disregard “Heedless reckless
tion” in this rights entitle to answer the others as used would issue only want charge, even there was of care affirmative entire tangible of a benefit. a belief that the act or chance which raises slim complained of was the result omission appellant’s-sixth point. no merit We see to the a conscious indifference fourth *10 discussion In our safety, rights and welfare others to the case that in order to take out agreed we by it.” be affected been there must have guest statute a not error for the court to omit appellant. It which flowed to tangible benefit persistent a course from its defi- element tangible benefit stated that also But we “Q you it hot busi- Wouldn’t call a given was the same definition nition. The you get the Cadwell, 159 ness deal where Fancher needed given in as hurry ? 825, except thing together that the in a state- include definition does not instant “A you you hurry Well see a don’t Negligence’, term, ‘Gross “By the ment thing that size. mo- than charge, meant more in this used “Q Well, sir, — n asking am not inadvertence I thoughtlessness, mentary objection No judgment.” error of “The answer COURT: Just appellant to the omission made question, sir. foregoing statement. “MR. BRICE: Thank Your you, cited, pages at case, above Fancher In the Honor. Court Supreme our 314 S.W.2d 821-822 of “THE COURT: answer Just “persistent of a discusses question, you ques- do understand the determining course”, holds and tion? ac- on guest liability gratuitous to a host’s ques- negligence alleged gross count “A No, repeat question. of cir- upon the combination depends tion “Q question is, you were time particular present cumstances you what would call a hot business in- time period place, on you put deal had together in a volved. hurry ? subject, go into further shall not “A No.” where, situation again we have here error. error, harmless there was Appellant Schafer at an earlier date had in our out pointed heretofore we have As he was testified that driving the car when fourth consideration Holiday three men left Inn but Hotel, uphold the sufficient the evidence we held that after he failed to turn to the left motivating influence that the jury’s verdict Highway directions, Northwest at Stevens’ transporting appellant’s meeting and stopped he the car Stevens took over a business furtherance of was the Stevens as driver of car. At he trial make expected to he deal from changed testimony his and stated that prove gross necessary to profit. It was not him Stevens to turn directed to the necessary define It was not negligence. Highway. right on Northwest It inwas disregard reckless for others. heedless following that the this connection cross-ex- point is overruled. Appellant’s seventh place: amination took say “Q you you now Now re- points and ninth eighth Tom Stevens telling membered committed says that the trial court right? to the turn credibility on the commenting to Schafer, appel- (9) (8) turn, he told me “A I know I Ralph Snyder which, said er- witness lant’s way he me know which don’t told to cause each calculated rors were it, turn, testify as to it has I can’t been im- the rendition of an probably cause did Brice. long ago, time Mr. proper judgment. sir, you “Q testified to Well, here; ways right different seven Appellant several instances cites change tes- go your back and you ever on his claims the court commented when timony other case ? in the example quote credibility. these For man told All I said was the me ap excerpts cross-examination from the Of me confused. —got pellant : *11 “A general reputation. That is the “THE answer the COURT: Just question sir. “THE COURT: Members No, sir, “A I haven’t.” Jury, you by the Court are instructed any not to consider his statement for the In the statements our purpose whatsoever. it out Strike not consti- quoted judge trial as above do from the record. is no testi- There credibility appel- on tute a comment the mony, it, no wit- evidence on and the Bunn, R. Co. lant. Mexican In Texas to ness is instructed this Court Tex.Civ.App., Justice only questions answer and not Supreme Norvell, now a member our make voluntary any statements.” necessarily judge “A trial Court said: expressing him- some discretion allowed At this ob- counsel case, controlling trial of self while jected respon- stating that the answer was be judgment should and a reversal of sive to asked. re- Counsel then impropriety, showing of unless a ordered quested withdrawn, that the instruction be is made.” coupled prejudice, probable which request the court There- overruled. upon counsel This moved for a mistrial. may motion judge A on his own motion was A too recess overruled. & testimony, McCormick improper ex'ciude point. taken at this When court recon- 1, p. of Evidence” Vol. Law Ray “Texas appellee’s requested vened counsel cases 41-B Sec. Tex.Jur. court to In withdraw the instruction. re- in permissible judge for a It is cited. sponse request the court withdrew an responsive give witness to struct his instructions as follows: standing swers, alone instruction and such “THE weight COURT: Members of a comment is not jury, you consider, the Court asks evidence. and the his Court withdraws instruc- during the occasion a third On tions, you given last instruction appellant Schafer cross-examination you and asks not to consider it as follows: are shown proceedings purpose whatsoever.” you read were, but you “Q Oh, After the court had withdrawn his instruc- three deposition two or your own tion counsel for made a motion Schafer, think, times; you Mr. as follows: in re- difficulty some might have you your you “To refresh the had said recollection membering what I you then, would have move the have court to deposition, so Reporter questions read back it? and read be sure and answers instruc- court’s have to do tell No, I all jury may just tion know so Brice. truth, Mr. exactly what. you Why do right. “Q That right, may you All “THE COURT: deposition two your own have to read Reporter, please.” Miss that, do pages long? times, just 23 it is three Thereupon questions and answers were you I go- know were “A Because jury. again read trap try saying into some- ing me try true, then wasn’t thing proceedings reflect reversible these Do pretty it. You are that I said prove opinion they In our do not. error? that, I understand. strong error, there last instance am, one, by the court’s withdrawal you cured that is “Q Oh, I what previous and sustaining instructions Well, about me. who told been told have the court motion to re- that, by way ? *12 Snyder’s opinion an- driving porter questions and that back Stevens was read the the the acquiesced at the Appellant thereby car of the accident swers. time truly appellant. based Certainly we cannot data him court’s on furnished to action. pro- Snyder the On say direct that believe that examination of the record we ceedings calculated discloses these quoted proceedings: above were improper an probably cause cause and “Q your type Does re- of work Appellant’s judgment. Rule T.R.C.P. quire, fairly Mr. Snyder, you that make eighth point is overruled. frequent appearances in court ? testified Appellant Schafer Yes, way is, the that works driving the car but he Stevens attorneys call me these who into the time accident. corroboration cases— Ralph testimony appellant offered the “MR. May please BRICE: it his Snyder, gave expert an witness as who Court, in the interest of time, since driving car. Stevens was witness is a seasoned wit- courtroom en- Snyder safety as himself identified himself, testifies, suggest ness he as City, gineer an in Oklahoma office Court, object and volun- his he been years For about Oklahoma. teering answers, long just but answer n field. con- analysis work in that He doing lawyer’s questions. Training Service. He also ducts a Drivers’ Yes, “THE sir, wit-' COURT: Safety Service in connection conducts a said he ness was. which with which he devised a chart analysis accident calculator known as “Q (By right, Kelley) Mr. All says by attorneys which he is used why is, tell us would Mr. country. investigators all accident over Snyder, you are upon called third the Accident His business is known as testify frequently court ? Analysis Laboratory, which is business attorneys “A The attorneys investigators and accident send me their and I analysis; cases make an send unusual and traffic acci- unbiased him difficult my analysis. findings are He adverse dent cases at- describes torney, of he course, methods follows: knows I would be as court, value no so I don’t compare might “I criminology ato appear, my testimony but if favor- criminoligist solving or the difficult able— crimes; might, I coining word, be an “MR. ‘accidentologist’, Honor, BRICE: Your di- solving traffic acci- particular answer, rected to that but happened dents and what in traffic acci- we ask Court wit- to admonish the dents the same criminologist as a go long ness into answers would finger- from fact that uses , responsive. are not prints chemistry and ballistics and that; I use such as the same sciences Yes, “THE sir, COURT: wit- comparison, skid to me are the marks is instructed not long ness to makr fingerprints same as would be to the voluntary statements, sir, just answer expert, fingerprint angle impact, questions, sir.” impact vehicles, forces ground evidence, are all we are able in the Later trial counsel through, to determine close observation for a because moved mistrial of this and “harassments”, some mixture of science as to ex- other similar which counsel actly analysis the reconstruction were comments contends the court on credibility of these same Snyder. on the accidents basis In the interest space solve would a crime.” time we shall not describe *13 it, I see “MR. KELLEY: Could Suffice “harassments”. detail these other it the record then? say to we studied agree the court’s statements
cannot point, no “MR. this BRICE: Not at credibility. Snyder’s were comments on sir. Moreover, believe do you “MR. KELLEY: Would note cause to calculated court’s admonitions were objection? our judg- improper probably did cause there deny “MR. di- Appellant Unless the court does BRICE: ment. Schafer, exactly he, appellant me at you rects show it was evidence that to to Appellant point. does your this Mr. wit- driving car. Henson is ness, present jury’s Kelley. verdict point attacking Mr. Ap- driving the car.
finding that he was “MR. know KELLEY: I don’t what point pellant’s is ninth overruled. is, no ques- it idea what going he to is about, tion him all he done is has ap appeal point on tenth to something reading without it. not allowed pellant complains he was only witness is the who saw it. one the wit tendered a statement to to examine objectionable I if it don’t know is appellee on by counsel for ness Henson not and going I can’t and the witness is cross-examination. question to be asked a about it. proceedings: reflects these The record “MR. give BRICE: I will Mr. you told believe “Q right, All I Kelley plenty object, of opportunity to statement, and your when I took me question. Honor, my when Your I ask here, your you I it this is will show to point- may “MR. He be KELLEY: it? signature, isn’t says something at what so ing “A Yes. it, points he so, say, and at right you answer, look reads the “Q I will the witness and it is ask improper, I don’t know. here. if I I wonder “MR. KELLEY: “MR. I the Court— BRICE: assure you going that, if are see
could Counsel, “THE COURT: please, please; witness, to the show know what he is point the Court doesn’t it, are Brice, could I see Mr. going ask or what he to do. going witness show and going it? from you, “MR. BRICE: Thank Your Honor. Honor, Now, Your BRICE: “MR. may not.
he “THE I know COURT: don’t how objection. your rule Counsel, just he is “THE COURT: it, identifying assume. I “MR. see he KELLEY: Let’s what asks. he is If that is all KELLEY: “MR. something pointing
doing, but ahead and read Go “MR. BRICE: it. understand it, Ias paragraph. first right. That is BRICE: “MR. Now— KELLEY: “MR. asking He KELLEY: “MR. yourself. To BRICE: “MR. it. something about witness right. All KELLEY: “MR. ask going am I BRICE: “MR. Okay. it, yes, sir. something about
witness my my inference about Now, Johnnie, intentions Brice) “Q (By Mr. intentions as set forth in that letter quite while since long has been ” and I stand it.” ? occurred hasn’t it this accident colloquy some after It will he observed objection Before the witness could answer *14 he see what said “Let’s appellant’s counsel by appellant’s attorney. was made The wit- to with- agreeing This was in effect asks.” question. did not answer the ness moment, or at objection his for draw question postpone after the present least until The situation does to it error. no out Appellee’s propounded. obviously But as it turned counsel was was attack- refer- question propounded credibility witness, with ever ing was of as he had next Appellee’s a right ence the statement. to do. do not think to We objection question question changed subject. appellant’s No inferred that counsel any suc- by appellant guilty perjury. made to of was of subornation was of His simply appellant’s not re- letter questions. presented The record does ceeding version Certainly reflect of accident, it does not as error. no doubt told flect attorney, testified, to Rule T.R.C.P. it his and he reversible error under and Appellant’s point as other in part during tenth witnesses testified is overruled. the trial. In addition the letter described says point appellant In his eleventh position car, tree, and the ap- permitted counsel for the Court positions occupants car, of the three of pellee to infer that counsel for etc., the accident as testified to following guilty perjury. was of subornation of by several witnesses. letter did not try Snyder to tell what he conclusions attorney ap- The record for shows reach, just hypothetical should as the usual pellant Ralph Snyder, wrote a letter H. to question propounded by attorney an does Safety City, Engineer of Oklahoma try expert to dictate the answer an of which certain furnished to letter data was witness, questioner or convict the sub- of Snyder appellant’s and of the acci- version perjury. Snyder ornation ex- an was analysis briefly Snyder’s dent was outlined. perienced witness who his own testi- requested. was mony was a many veteran court trials. type questions example An cross-examination was at vigor- His times appellant complains as follows: ous, but we do not subject it was to believe “Q you gave your Before by appellant levelled at the criticism you any inquiry make whatsoever his counsel. Once more must hold that any of these facts? into connection, in this appearing error, there was harmless under Rule was No, you why. I and can tell Appellant’s T.R.C.P. eleventh “THE COURT: answer Just overruled.
question, sir. pause here to state that “A I did not. attorneys and the firm attorneys “Q already knew, you, You didn’t enjoy are associated very whom good you knew darn well that what reputation indeed the legal profession Kelley looking Mr. was some- was respected highly and are integrity their body testify that Stevens was driv- ability. ing, seat, Schafer in the back seat, that Farris in the back point appellant his twelfth al you you gave your knew that when tes- leges ap- the court error of in sustaining timony ? pellee’s objection testimony appel witness, “MR. If Plyler, KELLEY: Court concerning.some lant’s Mrs. please, object I to that, allowing appellee, because dogs, ap- later then over Plyler my objected that because he go- Mrs. has
pellant’s objection, to
it,
object
into
subject.
ing
therefore
same
I
about the
his
into it.
going
testimony ap-
course
his
During
“THE
it.”
purpose
Overrule
pellant
that the
COURT:
had stated
dogs. Mrs.
hunting
trip
see Stevens’
was to
substantially
The witness then testified
scene
on the
Plyler
that she arrived
testified
same as she had
jury.
in the absence of the
After
after
accident.
time
short
she talked
regained
appellee’s
The effect
counsel
cross-
Schafer
consciousness
question:
asked her this
examining
dogs
to him.
about the
Counsel
witness
*
**
whether or
you
previous
remember
objection,
“Do
waive
which he
dogs
opened
anything
course,
about
had a
right
said
do. Of
*15
subject
the
juncture
of that
for
redirect exami-
anything
nature?” At
on
The
nation
appellee
objection.
subject
to
into
go
greater
made
the
de-
counsel
the
tail
if he
of
chose.
did thereafter
jury
retired and in the absence
Counsel
was
question
“I
the
follows:
witness on redirect examina-
the
testified as
jury
witness
tion,
him
wife,
any questions
he
if
had a
and asked
but
chose not to ask
asked
he
I
him
yes,
answered,
family,
dogs.
if
about the
he had a
and he
Under the circumstances.
large
present error,
he had
he
me to believe
the situation does not
cer-
led
tainly
two
family, mean
at least over
Rule
large,
I
reversible error under
Appellant’s
about
children,
point
and he told me
is
something
T.R.C.P.
twelfth
over-
*
* *
assumed
after that.
I
dogs
Which
ruled.
was
home,
do
his
I
he had to
with
because
Appellant’s
point
thirteenth
is that
the
home.
make
about his
to
him
trying
talk
effect
all
errors
cumulative
the
shown in
of
*
**
wife,
had
Q.
Did he tell
he
requires
together
record taken
re
the
family,
or
dog,
had a
and he
and he
case,
Scoggins
the
versal
citing
of
Cur
That
your understanding? A.
that
was
Taylor, 148
&
lant stated, have heretofore our sus- As we Now, KELLEY: if the Court “MR. appellant’s appeal fifth on taining of withdrawing is ob- his please, of case. not decisive The evidence question, and the wit- jection support jury’s insufficient verdict was answer, would to have the I like ness’ operated the car with heed- jury played back show record disregard rights reckless of the less and witness’ answers were to the what guest was not a others. But Stevens they direct so will have the question Art. 6701b. meaning Conse- within in mind before counsel examination prove appellee only had to quently ordi- cross examination on that his makes question nary negligence. There no point. particular verdict evidence estab- [*] “THE COURT: [*] [*] Request denied. part. lished ordinary negligence then, court Now, I trial af- judgment “MR. KELLEY: object like to into going firmed. would parties brought non-joinder .of
ON
REHEARING
MOTÍON FOR
mo-
court in the
.the attention
the trial
appellant in-
In his motion for rehearing
trial,
otherwise, consequent-
tion for new
original
sists that
in our
we erred
ly
'was
error
fundamental
par-
join as
failure to
that the
in-holding
not in
cases.
parents
ties the
of Thomas H. Stevens
Huffman, supra, apparently sup-
Webb v.
require
not such
error as to
fundamental
ports appellant’s contention,
though the
judgment
of the trial
reversal
opinion does
complaint
not disclose whether
court.
However,
made
the trial court.
says
upon
Appellant
the decisions
Amarillo
Appeals,
Court
revers-
Civil
hold
have relied do not
ing the trial court’s judgment,
sus-
also
determining
of fundamental
the existence
points
tained
pre-
error
which had been
the courts
the state-
into
will
look
served by proper assignments in the trial
hold,
according
ment
facts. What
e.,
court. Writ of Error was refused
r.n.
appellant,
error will
is that fundamental
therefore we cannot know
our Su-
whether
requires
ap-
not be
if to
found
do so
preme
approved
Court
holding
pellate
Ap-
weigh
court to
the evidence.
fundamental error.
*16
pellant’s position
the fact
here is that since
Appellee,
hand,
on the other
vigorously
upon
appears
case
relied
uncontro-
contends that we were correct in our orig
verted in
facts,
the statement of
the court
opinion
inal
may
when we held that
we
may
deter-
look
the statement of facts to
into the
look
statement of facts to discover
mine the existence of fundamental error.
fundamental
support
error.
In
of this view
Among
quoted by ap
the cases cited and
may properly
think
authorities
be
pellant
support
in his brief in
of his con
cited as
Ry.
follows: Texas
Pacific
&
Co.
tention are East Line & Red River R. R.
644,
Lilly,
697;
v.
118
23
Tex.
S.W.2d
White
Culberson,
664,
Co. v.
68 Tex.
5
820
S.W.
Glengarry
Co.,
626,
v.
Oil
137 Tex.
156 S.
(1887); Ft.
& D.
Worth
C. R. R.
v.
Co.
523;
Indemnity
W.2d
Insurors
& Ins. Co.
Wilson,
516,
Tex.
(1893);
85
poses plea error considering fundamental tablished the limitation defendants; hence, facts. last sit- does not include the statement of named Ry. Lilly, present 118 Tex. fundamental Texas v. uation did not & Co. P[acific] 644, 697, adopted apparent error on the (Opinion 698. or ‘error law 23 S.W.2d ” by Supreme quote from Court). face of the record.’ in the last named case: v. Associated Insurors Ind. & Ins. Co. any mean Corp. al., 286,
“The statute does not et 162 S.W.2d Ind. by look can Supreme error which ascertained said: our Court be evi ing record, including into the requires “If an examination ‘ap dence, error constitute that will error, statement to disclose of facts parent upon the record.’ the face of no error of fundamental funda all errors would make This be Krenex, presented. Tex. Moore v. errors, may be mental every 828; Com.App., Texas & 39 S.W.2d appear made examination Lilly, P[ac], Ry. 118 Tex. v.Co. language the entire record. The Taylor Davenport 697; 23 S.W.2d v. statute, therefore, more is used in a Ass’n., County Tex.Civ. Tuberculosis been has restricted sense. The statute Hill, App., 72 S.W.2d Horton negative subsequently construed in 751; Traders Tex.Civ.App., 95 S.W.2d way examination so as to exclude an Patton, & Tex.Civ. General Ins. Co. the;court facts the statement 1083; Tex.Jur., pp. App., 92 not there be to determine whether 808, 809, 810; Tex.Jur.Sup., pp. support judgment. evidence be greatly could authorities These (Tex. Ford & Damon v. Flewellen *17 extended, sufficient to but are 903; Blackmon v. Com.App.) 276 S.W. is that here announced show the rule (Tex.Com.App.) Trail 12 S.W.2d From what we the settled law. not what is. The does define statute we cannot review said it evident that nega by record,’ in ‘the but the meant court question a trial the as to whether con way has been just noticed it tive judgment entering committed error in part rec that strued exclude veredicto Insurors non obstante upon supplies the which facts which ord Company.” Indemnity and Insurance judgment. bases court the Dunlop, 196, Ramsey 146 205 In Tex. here used evident- ‘record’ as “The 984, Alexander of 979, Chief S.W.2d Justice pro- means, law, ly as at common those Court, opinion concurring Supreme in a our at the foundation ceedings lie which said: power judg- render the of court’s the citation, petition, ment, judgment the the such as the “I am in accord with verdict, proper. judgment case, and the I desire to the but rendered in not opinion include instruments It the my does it that make clear ex- such as Civil permits thus bills a of fundamental, Court rule which of ceptions, statement the un- facts, judgment for Appeals a to reverse of ours). (Emphasis like.” much given be a error must assigned interpretation and narrow more strict holdings are made other Similar cases. adop- permissible the prior to than was al., Co. Glengarry Oil et 137 In White v. * * * present the tion of It rules. 626, 523, 524, (opinion 156 S.W.2d Tex. opinion the my that Court of Civil Supreme Court) it adopted by is said: Appeals is authorized to reverse upon the trial court resorting judgment of without “Furthermore, only in- facts, unassigned when it of the Court of the statement public a matter of interest Appeals could not volves Civil have discov- affirmatively con- conclusively the record the evidence es- when . ered that
489 ord appellee affirmatively conclusively the clusively shows rec- shows recover, rendering where court not entitled to court judgment jurisdiction was without affirmatively shows that of ord subject matter, without judgment error will also rendering the regarded be subject matter.” as fundamental.” . jurisdiction over Tex. Stores, 150 It Inc., is to be prior Fair noted that even Lane v. adoption a case 683, of 685 was the Rules S.W.2d Civil Procedure 243 con- 1941 refused it Supreme was held Court we were not which been refer facts statement facts in sider a statement consider- made ing alleged also However, court fundamental In filed late. error. view of the “much narrower” concept now con- this statement: trolling, we must adhere opinion to our an examination requires it “If may not look into the statement of error, then reveal facts to statement of facts in the instant case to discover funda- error.” not fundamental it mental error. Marchand, 252 S.W.2d Krottinger v. Can saywe that the pre- record before us said: it is (Tex.Civ.App.1952) 218 jurisdictional sents question? Appellant says case points reverse does and may a court strong “Before to the language error, by must used upon fundamental Gaines based in East Justice Line & an exam- Red solely River finding from R. Culberson, make its Co. v. 68 judgment pleadings, However, S.W. 820. ination in that case case, without defendant raised records and other nonjoinder in the trial the statement court the assistance motion in arrest of judgment ours.) and in (Emphasis a motion for facts.” trial, new so fundamental error was not by Chief expressed The views Justice involved. opinion concurring in his Alexander of We part do agree supra, appellant. are Dunlop, Ramsey In the later How- case of Ry. in that Texas & opinion case. Pac. majority Lilly, Co. v. our (Opinion Per Curiam adopted a later ever in *18 Supreme way Court) toward long a it is gone Supreme Court has said: Chief former the embracing the views of “There is a vast difference between opinion in quote from the Justice. jurisdiction and the juris- exercise of Underwriters, McCauley Consolidated v. power The diction. decide, hear and (1957): 265, 266 475, 304 S.W.2d Tex. 157 jurisdiction, which is includes pow- the er to decide provision wrong the as “Since Rules make no well as right. In this may connection apparent for consideration of it errors be conceded judgment record, concept of awarding face of the the item of against costs the partially error much narrower fundamental is successful appellant 1837, many county than was under Art. court was wrong and in violation formerly errors as fundamental of the treated statute. Nevertheless the may regarded county not so now. The ma- be court had the power, in opinion jority Ramsey in the sense of case does jurisdiction, render the attempt judgment give an all-inclusive not def- he did.” term, inition of the but holds that In Ry. Missouri Pac. Co. v. Henry, 75 directly adversely error which 220, Tex. 12 S.W. 829 there is this public gen- affects the interest of the statement: erally, by as interest is declared n the statutes or Constitution of our “It been that, has decided where the the, State, is fundamental. When objection non-joinder rec- is made at 490 time,
proper should be abated er pleading suit or in motion trial proper until parties in the joined are court.” action, parties, in either actual or as Here the 101st District Court of Dallas by proper in the allegations cluded County, Texas, jurisdiction certainly had of action, benefit & ( [Houston the subject matter of as Perhaps, this suit. Moore, Railway Texas Co. v. C.] appellant non-joinder claims a there was Rail [Galveston, Tex. &H. S. A.] parties. of non-joinder But we as see the Gierse, way 189.)” Le Co. v. parties, of not disclosed on the face of (Emphasis ours). record, jurisdictional anot fatal de- support expressed finds fect contemplated The view above as by Supreme our Court In Louis in considering in an this St. of fundamental Court. error. Ander- Ry. of Texas Southwestern Co. v. son, Tex.Civ.App., 206 S.W. Lastly, gen this case of is not one Jus- Court, Talbot, said: speaking
tice for the public contemplated eral as in interest our Supreme regard Court holdings in funda appar- is one error fundamental Dunlop, Ramsey mental In su error. The upon record. face ent pra, an election was involved—cer contest part no constitute referred to affidavits tainly public a matter interest. It fact, cause, and the the record this true we are that- concerned here deceased, fact, it be a John proper application a Art. statute. him Anderson, surviving left father V.A.C.S. a broad sense all statutes record, the appearing from application proper are matters their here be charged sought public we believe interest. But The mat- not fundamental. assigned is Supreme limited sense intended our the court attention to the ter called error, reference fundamental Court with jurisdictional, is not assignment in the “general public case of inter * ** . parties, nonjoinder but a case, Ramsey for instance. est” was by plea in abatement appellant, Nor did Ry. Lilly, & of Texas Pac. case Co. whatever, objection form of or application supra, also involved the fa- nonjoinder complain statute, but claim of fundamental error urge that the suit suggest ther, or was overruled. party he was made until be arrested by proper averments included for rehearing motion In his (Emphasis the action.” benefit of complains special issue again No. ours.) proper Since submitted form. was not original opinion quote our we did us before now case In the *19 so now: full we issue in do abatement, by form or plea in not, in complain the trial whatever objection of NO. 2. Do ISSUE “SPECIAL parents of nonjoinder of the court preponderance from of evi- find Stevens. Thomas H. motivating influence dence Defendant, Schafer, B. in Carl trans- Beck, Corp. 157 Tex-Jersey Oil porting Thomas in H. Stevens A.L.R.2d 541, 305 S.W.2d at the time and on the automobile occa- no in which there was mention case was question the collision in sion pleadings or evidence of a business deal in furtherance a non-existence of the or dece- existence defendant, Schafer, B. Carl Calvert, writing the father. dent’s Justice expectation tangible benefit say: then went on pecuniary “yes” nature. Answer plea (Emphasis “The not raised “no” YES.” ANSWER: abatement, special exception, or oth- ours.) charges Among things other restrict
the issue drawn does ele- time
jury’s proper consideration to the further-
ment with reference when “the Ap- of a business deal” involved.
ance
pellant Stevens argues part of the time were together were business
engaged in furtherance of “the a social
deal,” merely engaged but were the Guest
meeting, during time which latter apply.
Statute would The agree appellant. do not
We
phrase occasion “at the time on the clearly confines question”
of the collision purpose consideration of to a together at time being
of their
fatal collision. carefully all considered
We re-
points motion for raised
hearing. opinion that all are be overruled.
of them should rehearing motion for is overruled. WINCHESTER, Guardian, Appellant,
Tolbie Texas, Appellee.
STATE No. 3681. Odell, T. R. Lubbock, appellant. Appeals Civil Texas. Court Ratliff, P.W. Co. Atty., Haskell, Earl M. Eastland. Austin, Scott, Wilson, Will Atty. Gen., W. Shultz, II, O. Atty. Gen., Asst. appellee. Nov. 1961. Rehearing Nov. Denied GRISSOM, Chief Justice.
The State of Texas sued guardian the estate of Vernie per- Winchester, a mind, son of unsound who has long been inmate of the Wichita Falls State Hos- pital, alleged amount to be due the her, support, State maintenance and was, upon treatment. based suit 3196a, provisions Article Vernon’s Ann. It was admitted that Civ.St. Vernie Win-