*1 en- conclusion that the Bank has a viable lien on the
cumbrance deed of trust WENDELL, Al., Appellants, Yvonne Et property which is now former husband’s simple long fee title. as the his So (until homestead interest continues AND CENTRAL POWER LIGHT youngest marriage child of the becomes COMPANY, Appellee. eighteen), there can be no forced sale. No. 13-82-362-CV. I agree What do not and believe is with is, misleading judgment, is this court’s Texas, Appeals Court of disposition. granted The trial court Christi, Corpus summary judgment Bank’s for “in motion respects” all and denied Villarreal’s June 1984. nothing” An “take order. examination Rehearing Aug. Denied Bank it the motion of the reveals addresses right; only of the homestead any rights
it does not ask for relief as to its course,
under the deed of trust lien.1 Of
there was no reason for the Bank to ask judgment,
for for it its lien knew title. The
viable as to the husband’s solely
Bank’s motion directed claim, granted
homestead and the court
motion.
By “modifying” affirming judg- holding Bank success-
ment we are
ful in its motion. But what is left after away only relief it
this court takes
asked for: a denial of the homestead claim. modify? Nothing.
What is left to We are writing judgment
then and NOT new penalizing
modifying. Further we are party, TEX.R.CIV.P.
successful Villarreal. not do. 448. This we should judgment should be reversed have de-
rendered. The trial court should
nied the Bank’s motion. The trial court relief granted
should have asked for perma- exception with the
Villarreal reversing injunction. By
nent and render- recognize the homestead es-
ing we would in effect until the
tate and that remains marriage
youngest child of becomes Therefore,
eighteen. I reverse and would
render. obligation summary judgment the Laredo National Bank The Bank's motion specific ground: plaintiff renew- sets out its advise of the extension and pre-existing obtain her judgment al of a valid debt and as a matter Defendant is entitled to essence, summary there is of law because the uncontradicted consent to such action. In judgment any legal duty evidence establishes as a matter of owed no shown a violation of following law the absence of the element plaintiff. plaintiffs cause of action: a homestead duty right subject property in the and thus a *2 Crites, Antonio, Raymond for
Carl San appellants. Jr., Dyer, Wray, Kleberg, W. Red-
James Christi, Weil, appellee. Corpus ford & *3 UTTER, GONZALEZ, YOUNG, Before SEERDEN, JJ., En Banc. KENNEDY and OPINION GONZALEZ,Justice. take-nothing a appeal This is an from wrongful Ap- action. judgment a death below, pellants, plaintiffs are the wife and deceased, electro- children of the who was a rig came into contact with cuted when his appellee. Appellants line owned alleged against appellee and vari- filed suit all negligence. The found ous acts of ap- liability against appellant. issues On that the trial court peal, appellants assert denying leave to its discretion abused allege and also error file a trial amendment (1) refusing to in: the submission and sub- issues, (2) the exclu- mit certain evidence. We affirm. sion of certain (CP Company & Light Central Power L) elec- maintained an overhead owned and Harbor, a system Cove trical distribution by Ar- owned marine industrial installation County Navigation District No. ansas wharf areas are The waterfront dock and companies, private leased to individuals November, 1978, major activity and in companies re- individuals and of such produc- exploration and lated to off-shore Wendell, products. Lynn petroleum tion of plaintiffs, was a and father of the husband general manager of part owner and Inc., Service, third-par- Marine Wendell defendant, ty a lessee at Cove Harbor. provided at Cove Navigation District launching ramp 43 a on Lot boat Harbor area for the use of adjacent parking and an Lot 43 covers public and the lessees. 46,604 (1.070 square feet approximately acres). accident, Lynn of his fatal
At the time Bill, brother, Wendell, employee, and an his Jackson, taking barge a out Kenneth water, stopped it in the drove the winch truck forward intending position repairs. Lynn parking area for routine barge was at the the truck so that truck to driving a winch Wendell standing. was seen where Bill was Smoke was attached a trailer. The trailer which Both coming from the tires of the trailer. ramp down the into the had been backed Jackson, barge, on the Bill and who was water, barge positioned above the trail- pail lowered a testified that Jackson truck, er and attached to the winch then the water on water to Bill who then threw pulled out of the on the trailer. water ground, the tires. Bill was knocked to poles supporting CP & L’s its overhead apparently by electrical shock. Jackson right-of- power lines were located in the piece of can- jumped testified that he way bordering Lot There were wooden try himself from vas in order to to insulate poles with cross arms on which distribution barge. the deck height approximately lines were laid at ground, As Bill was thrown to the Jack- ground. Rising from 32 feet above both *4 Lynn Lynn son looked toward and saw that barge point approximately of the at a sides lying ground to the left of the on the barge feet to the rear of the metal were left door of the winch truck. poles, spud approximately which were length. barge feet on the With power line The contact with the overhead trailer, spud poles approximately were point feet northeast of occurred at a 36.5 thus, ground; spud 4 feet off the the metal pole and at an elevation westernmost poles approximately stood 32 feet above of 32.8 feet. The wire above the surface the surface level. spud pole point at made contact with the 27, 1978, barge On November after the top 2 inches from the of the approximately and trailer had been removed from the pole. spud part way water and moved into drawings during admitted the trial area, parking Lynn stopped the Wendell varied, many and and the witnesses’ determining tow truck. After that insuffi- regard them were not comments with space cient for access was available regard always specific with to which exhib- ramp, others boat it was decided being discussed. from the go ramp. further southwest from the entire reconstructed a fair- record we have rain, misting There was was us- scene, depiction of the ly accurate relevant spotter Bill ing as a in order to determine stop. Lynn at which he would as follows: *5 pronounced higher 2. Lynn place power was dead. His surviv- lines at a eleva- and ing spouse daughters brought suit tion; L against wrongful & death. Illi- CP power underground; 3. place the lines Wausau, Employers’ Insurance of the nois opposite 4. place power lines on the compensation carrier for workers’ street; side of the and Inc., Service, Marine a Peti- filed
Wendell warning signs. L third- 5. tion Intervention. CP & filed a erect against Lynn Wendell party action Marine Appellants alleged liability under the also Service, Inc. ipsa loquitur. res doctrine of against appellants appellee The suit denial, Appellee general filed a and al- alleged that had failed to: leged in: negligent that Wendell was 1.inspect, survey appraisals make and keep 1. Failing proper a lookout. condition; transmission lines for unsafe power We, Coming jury, 2. into contact with the do not. answer We line. Moving barge power 3. under ISSUE SPECIAL NO. line. preponderance find from a you Do Failing spud poles to lower the of the that Central Power evidence barge moving it. before maintain Light’s failure to erect and Failing notify appellee mov- about opposite line on the side of distribution ing barge power under the lines as question at the was the street location in required by TEX.REV.CIV.STAT.ANN. negligence? 1980). (Vernon art. 1436c “We do” or “We do not.” Answer trial, During the course evidence We, Jury, We do not. answer: power
was introduced that line extend- parking ed 8V2 inches into the lot over SPECIAL ISSUE NO. Appellants where the accident occurred. complained “taking there had that been a find you preponderance Do from a process,” without fourth due and on the the evidence that Power Central day trial, appellants orally of the a offered Light’s place failure to the electrical dis- trial interjected is- a new higher line at tribution elevation sue, is, encroachment negligence? area in negligence lines lot 43 into “We do” “We do not.” Answer proximate cause the accident. Leave We, Jury, answer: We do not. file was denied the trial court. following day, appellants offered a written ISSUE NO. 7 SPECIAL asking appellee amendment. Without respond, again the trial denied court you preponderance Do find from a Appellants’ again leave to file. counsel Power evidence Central made reference this trial amendment Light’s failure to erect and maintain when objections charge warning signs as to the and ex- location *6 being made. line, voltage, of istence the its and its height ground ques- in area in above the The trial court submitted the case to the negligence? tion was jury negligence on the acts that were “We do” “We do not.” by appellants’ pleading raised in- Answer and also structed jury the standard definitions of We, Jury, the answer: We do not.1 care, ordinary negligence, proximate and Lynn also jury The found that Wendell cause. lookout, keep proper had to a that he failed jury The all issues liability answered the in negligent failing spud was to lower adversely third- plaintiffs to the and to the it, poles barge prior moving on the and party Specifically jury an- defendant. proximate acts cause of that these were a 1, 3, 5, Special swered Issues No. and 7 as damages accident. also found follows: $3,503,300.00. plaintiffs plaintiffs Judgment was entered that ISSUE SPECIAL NO. nothing. judgment, From take you preponderance from a
Do find Wendell, Wendell, Yvonne Marcella Gwen- the evidence that Central and Power Wendell, dolynne and Wendell Barbara Light negligent failing place in its was defendant, Lynn joined by third-party Wen- ground? under distribution line Service, Inc., brought ap- dell this Marine peal. do” or do not.” Answer “We “We power negligence plaintiffs request survey the and
1. The not court line was did that the special inquiring CP & proximate submit issues whether cause of the accident. alleged inspect, appraisals L’s failure make _ We, Jury, Trial Amendment answer: error, their Appellants, first SPECIAL ISSUE NO. allege denying in that the trial court erred of court to file their trial amendment leave you preponderance Do find from a refusing special in to submit related negligence the evidence that such was that the Appellant issues.2 asserts issues proximate cause of the death of were tried consent and that a trial Wendell? should been amendment have allowed Answer: “We do” or “We do not.” proof under conform _ We, Jury, answer: TEX.R.CIV.P. The trial amendment and issues ISSUE NO. PLAINTIFF’S SPECIAL question
in were as follows: you preponderance of Do find from a the evidence that Central Power Plaintiffs’ Trial Amendment Light Company intended to install allege L 1. Plaintiffs that CP & owned voltage Lot high wire over and maintained the distribution line 43? spud which came into contact with the intend_- It did so pole question, and over Lot 43 of in question, the area and that constitutes It did not so intend negligence. mentioned, in previously As we have Requested Special Issues Plaintiffs’ appellants alleged had pleadings, their live SPECIAL ISSUE NO. they appellee negligent because you preponderance from a Do find inspections, apprais- proper failed to make the evidence that the distribution line surveys conditions and als and for unsafe spud
which came into contact with (1) low, power lines were: too because by the pole was owned and maintained (2) underground, ground rather than above Utility Company in and over lot 43 of (3) oppo- should have been located on question? area street, (4) they site side of because not.”3 Answer: “We do” or “We do warning signs. erect The trial failed to _ We, Jury, answer: negli- alleged another act of is, No. you negligent If have answered Issue gence, ___ do”, then answer Issue allowing overhang “We lines to ; No. otherwise do answer parking lot some 8V2inches. *7 No._ Issue pleadings during tri- Amendments to the 66, permitted al are under TEX.R.CIV.P. NO. SPECIAL ISSUE Amendment you preponderance find from a RULE 66. Trial Do erecting maintain- the evidence that objected trial on If evidence is to at the in ing lines over distribution ground that it is not within the issues negligence? rigging area constituted pleading, during if by made or defect, or any do not.” trial fault omission Answer: “We do” or “We court, nor in their brief. To Appellants’ reads as fol- Not in the first of error appellants’ point completely of error lows: remake Utter has done is unwarranted. as Justice court to refuse to It was error for the trial Amendment, Trial to-wit ... submit Plaintiff’s inquired an uncontroverted 3. This issue about plaintiffs’ requested submit and to refuse to special deny ownership and & L did not fact. CP with such Trial issues in connection Amendment, added.) hung power (emphasis Nowhere of the line nor that it maintenance appellant question. that it was error for does assert over lot 43 in the area pleaded trial court to fail to issues. submit substance, (citations pleading, omitted) either of However, form or is the law court, to the called attention of the judicial vests in the trial court sound may pleadings court regard allow to be discretion with to trial amend- freely amended and shall do so something when the ments and more than a re- presentation of quest the merits of the action appear and a refusal must before a will be subserved thereby object- reviewing and the may properly say court ing party fails to satisfy the court that the trial court abused its discretion. The the allowance of such amendment presumed would action of the trial court cor- prejudice maintaining him in his action or rect subject only and is to review on a upon may defense the merits. The court showing of an abuse of discretion. grant postponement to enable the ob- § McDonald, quotes 8.07 Lightner v. jecting party to meet such evidence. McCord, (Tex.Civ.App. RULE 67. Amendments to Conform to —Amarillo, 1941, writ), which lists some Objection Issues Tried Without of the factors which affect the exercise of When plead- issues not raised the trial court’s discretion as follows: ings by express implied are tried or con- In the allowing matter of amendment ... parties, they sent of the shall be treated pending the trial in order to meet the respects they all ifas had been raised proof, judge the trial should allow pleadings. in the In such such case if appears the new pleadings may amendment of the as be matter contained in it was not known to necessary to cause them to conform to party or, seeking to file the same the evidence and to raise these issues diligence, the exercise of reasonable he may be upon made leave of court could have ascertained the same when any motion of party any at up time filed, his former and that submission of the case to the Court it does not inject involve new issues or jury, but failure so to amend shall not into the case new which would matters affect the result of the trial of these orderly progress interfere with the issues; provided pleadings, that written injustice upon court’s docket or work oth- submission, before the time of shall be parties er ... ... when it necessary to the submission of appears that the new matter was known issues, provided as is in Rules 277 and party seeking to file the amend- 279.4 ment, counsel, or, or to his by exercising
A trial amendment may be filed diligence, reasonable it could have been only by court, leave of request and the known at ... such time as would have leave is addressed to the trial court’s dis enabled them to include it in his former cretion; the trial ruling court’s is reviewa pleadings, injects or if it new matter ... only showing ble on a of abuse of discre request should be denied. State, Victory tion. 138 Tex. Appellants appel- assert that the issue of (1942); McDonald, S.W.2d 2 R. negligence lee’s due to the encroachment of Texas Civil County Practice District and power parking line over the lot was § (rev. 1982). Courts 8.07 many tried consent because of the refer Hamilton, As stated in Keelin v. ences to the location of the lines in S.W.2d objection. came in record that without — Dallas *8 1968, writ): no by This does not amount to trial consent universally recognized
It is that Rule since that evidence was relevant to issues 66, T.R.C.P., # expressly Watts, which autho- by pleadings. raised the v.Watts pleadings, 314, rizes trial amendments to is to (Tex.Civ.App. 563 316 S.W.2d — Dallas liberally justice. 1978, n.r.e.). be construed in favor of writ ref’d express try power 4. There was no consent to the un- croachment of the line into Lot 43 was pleaded inquiry issue by implied so our is whether the issue tried consent. alleged negligence of CP & L’s due to the en- 618 The mere introduction of value of testimo the fees would not be necessary. e
ny
preclude
on an issu does not
The court
one’s
wrote:
opponent
complaining
from
of the submis
“If
arguable
it be
stipulation
that
the
matter,
sion of an issue
the
on
failure
hearing
constitutes the
of some evidence
object
to
testimony
to that
is not
a
fatal to
attorney’s fees,
on the issue of
the intro-
subsequent
prevent
effort to
of
submission
duction of evidence alone does not mean
supported
issues
by
testimony
that
to the
parties
the
consented to a trial of the
jury.
by
Supreme
As stated
our
Court
issue;
unpleaded
there must be more.”
Harkey
Employers’
v. Texas
Insurance
(citing Harkey).
Id.
Association,
504,
146 Tex.
Associates v.
ed
high voltage
electricity
over which a
connection,
appears
In this
where
rendering
highly danger-
conveyed,
them
matter
known to
new
others,
duty
using
ous to
is under the
amendment,
parties seeking to file the
or
necessary
prudence
care and
at
counsel,
by exercising reason-
to their
or
right
may
others
places where
have
diligence, it
have
known
able
could
been
work, business,
pleas-
or
go,
either for
time as
have enabled them
at such
would
ure,
prevent injury.
pleadings,
it in
former
to include
their
*10
requested
expert
The trial court denied the
in-
Appellants’ attorney
lee’s
witness.
gave
attempted
struction and instead
the standard
appellee’s
to cross-examine
em-
ordinary
negli-
instructions on
care and
ployee,
Mosely,
Walter
regarding the stan-
instruction,
gence. Through
proposed
their
dards embodied in the National Electric
impose
appellants
attempting
high-
are
to
a
Code.
duty
ordinary
of care on
than
er
recognized
If a book is
as au
care.
a witness or is relied on
thoritative
Appeals,
The Texas
of
Commission
expert
forming
opinion,
witness in
his
opinion
language
in an
from which the
of
may
he
be cross-examined based on the
drawn,
requested
instruction is
said:
reading
excerpts
of
from that book.
this,
duty
imposed,
is
in a case like
[T]he
Bourdon,
Bowles v.
148 Tex.
219 S.W.2d
warn,
only
not
but to use at least
(1949);
Surety Corp.
National
ordinary
premises
care to
have the
a
Rushing,
(Tex.App
West
451, 453,
(Tex.Comm’n
properly
and was therefore
excluded.
App.1932,
hold-
See
Baladez,
Pittman v.
158 Tex.
ing approved).
this “commensu-
(1958). Appellants’
point
S.W.2d 210
sixth
danger”
rate
not
with
standard does
care,
of error is overruled.
impose
higher duty
merely
of
fully
ordinary care
more
defines what is
second, third,
Appellants in
fourth
their
fact,
presented.
In
under the facts
points
of error raise issues
seventh
Renner,
Court
set forth that:
negligence.
relating
We
Wendell’s
meaning rule of
common-law
[T]he
error, and
points
have reviewed these
ordinary
enough
care is elastic
to meet
they are overruled.
n
emergencies; the amount of care de-
all
AF-
judgment of the trial court is
pends upon
exigency
confronted.
It
FIRMED.
may require
thing
one
to be done at one
place,
something
else at another
KENNEDY, JJ., dissent.
UTTER and
degree
care must
such
place; the
be
person
ordinary prudence would
as a
J.,
NYE, C.J.,
BISSETT,
partici-
exercise under like circumstances.
pating.
at 453-454.
Id.
UTTER, Justice, dissenting.
concept
ordinary
We believe
in-
in this case and the
care is sufficient
respectfully
join
I
I
with Justice
dissent.
properly
Appellant’s
denied.
struction
Kennedy in
the trial
his conclusion
point
fifth
of error is overruled.
refusing
court abused its discretion
error,
agree
appellant’s
amendment. I
sixth
allow
Appellants,
their
my opinion
erred in re- with his conclusion because
complain that the trial court
merely amplified or
stricting
appel-
the trial amendment
the cross-examination
*11
Appellant
given
pleading upon
appel-
the trial amendment.
was
clarified the
which
for the
opportunity
explain
lants went to trial.
no
to
basis
amendment,
appellee
requested trial
Petition,
Original
In their Third Amended
given
opportunity
respond
was
no
trial,
pleading
appellants
at
al-
their live
request.
leged
appellee
negligent
was
due to:
THE
commonly
UTILITY COM-
under-
In accordance with the
failure
proper inspections,
survey,”
PANY to make
the term “to
stood definition of
appraisals
surveys
their
specific allegation in the trial amend-
area in
transmission lines
question
appellee
failed to
ment
was
question, for unsafe conditions of a
surveys of its distribution
proper
make
proximate
nature which
allega-
import
The obvious
of said
lines.
Lynn
cause of the death of
Wendell.
that,
properly
if
had
sur-
tion was
added.)
(Emphasis
lines,
veyed
have discovered
said
would
lines were not con-
the distribution
Appellee
objected
excepted
neither
nor
extended
right-of-way
fined to the
but
pleadings.
these
In the
absence
43, pos-
Lot
eight and one-half inches over
exceptions,
liberally
courts will
construe
condition,
ing
potentially unsafe
which
pleadings
pleader.
in favor of the
Roark v.
the death of
proximate
was the
cause of
Allen,
(Tex.1982);
offered the trial ISSUE NO. SPECIAL set forth: which preponderance from a you Do find L allege 1. Plaintiffs that CP & owned line the distribution the evidence line and maintained distribution spud contact with the which came into came into contact with which maintained pole owned and question, in and over lot spud pole 43 of the Company in and over lot Utility and that question, the area in 43 of question? area in negligence. such constitutes or “We do not.” “We do” Answer: record, the trial court As reflected in the We, Jury, answer:- request for sponte appellant’s denied sua you appeal, If have answered Issue No. basis TEX.R.CIV.P. 418 and _“We do”, Greer, Marriage In re then answer Issue No_; otherwise do not answer writ — Amarillo No._, dism’d), Issue restrictively ap- we need not view
pellants’
majority
first
of error as the
requested
does. The first
special issue re-
SPECIAL ISSUE NO.
gards an uncontroverted fact
issue and
*12
you
preponderance
Do
find from a
of
submitted,
Texas Em
need not have been
erecting
the evidence that
and maintain-
Miller,
ployers’ Insurance Association v.
ing
question
the
in
distribution lines
over
1980,
pleading apellee & L was CP negligent failing survey in its distribu- PLAINTIFF’S SPECIAL ISSUE NO. lines, that, tion if made and had you preponderance find a Do from lines, proper surveys of said it would have the evidence that Central Power and discovered that the lines not confined were Light Company intended to install right-of-way eight to the and but extended high voltage in wire over Lot 43, posing poten- one-half inches over Lot 43? condition, tially proximately unsafe which ______ It did so intend caused the death of Wendell. Said pleaded pervaded issue the entire trial and It did not so intend controlling disposition was an issue the case. majority opinion The makes note of the part: provides TEX.R.CIV.P. 277 appellants’ point fact first of error may In all cases the court submit reads as follows: upon special said cause issues without It is error for the trial court to refuse to and, request party, upon re- of either amendment, plaintiffs’ to wit submit trial submit shall quest party, of either plaintiffs’ ... and to refuse to submit upon special controlling issues cause requested special issues in connection disposition the case that are trial with such amendment. (Emphasis by pleadings and the raised written [by majority].) added case, that, in the except evidence majority restric- would have us view subject agree- good cause to review on tively appellants’ point first of error as may sub- parties, ment of the the court requested special regarding only the issues (Em- charge. general mit the same on a trial they as relate to the issue raised added.) phasis amendment, issue, majority which as the part: provides TEX.R.CIV.P. 279 contends, sufficiently by was not raised upon spe- a case When court submits appellants’ pleading. since issues, submit the control- shall cial he briefing liberally rules are construed to be plead- ling by issues made the written appellant’s real an effort to ascertain an (Emphasis appellant’s requested add- allowed ings and the evidence. to answer ed.) special concerning such trial amend- issues ment. I would reverse remand. Under TEX.R.CIV.P. 277 and when error, Appellants, their upon the court a cause of action first submits issues, special complain per- court’s shall submit cause the trial refusal upon special controlling dispo issues mit trial amendment the submission Appellant of related issues. asserts special sition case that are raised the issues were tried consent pleadings written and the evidence in the case; and, so, that a trial should have been under such failure do circumstances, allowed conform Chrys reversible error. McMorries, proof under TEX.R.CIV.P. 67. The ma- Corporation
ler
opinion
jority
that the
writ);
holds
issues
(Tex.App.
— Amarillo
not tried
Bank,
consent. The trial amendment
Chesshir, 634
First State
Morton v.
majori-
are
issues
set out
(Tex.App.
writ
S.W.2d 742
— Amarillo
*13
ty opinion.
n.r.e.).
only
refd
The trial
has dis
court
required
cretion in the manner in which the
Trial
were
amendments
offered
three
are
issues
submitted. See TEX.R.
by
appellants.
occasions
all three
the
On
279;
Phillips,
CIV.P. 277 and
v.
Braugh
occasions,
the amendment was denied
(Tex.Civ.App. Corpus
625
ambush,
Rules,
prise
by
and trial
also led
and Texas
20 Texas L.Rev. 16
45,
(1941).
is an
or
pleadings
harsh results when there
omission
Under Rule
are
pleader
adequate
pleadings
they give
defect in the
and the
has
if
fair and
sufficient
pleader
upon
a valid claim defense. The Texas Rules
notice
which
facts
Procedure,
63,
Allen,
including
45,
of Civil
Rules
bases his claim. Roark v.
(Tex.1982).
permit
66 and
intended
S.W.2d
merits of the case
despite
to be reached
designed
way,
In the same
Rule 67 is
pleading
It
errors.
has been said:
prevent the
of the rule an
harsh results
Procedure,
Rule
Texas Rules of Civil
Mims
McKinney,
nounced
and Denison.
requires
pleading
a defendant’s
to con-
If the evidence has been admitted on .a
plain
sist “of a statement in
and concise
issue,
stand
controversial
the verdict can
defense,”
language”
“grounds
his
Traders,
under Rule 67. Texas Tool
Inc. v.
provides
they
shall be so con-
Co., Inc.,
Mosley Machinery
justice.
strued
do
as to
substantial
“Fair
writ).
(Tex.Civ.App.
no
— Waco
by
allegations
notice”
as a
is
whole
requirement that
there is a
evidentiary
the test for
sufficiency
jury
issues
to the
find
submitted
pleading or
excepted
conclusions
to.
support
pleadings.
in the
v.
McFadden
provides
Rule 67
issues not raised
Hale,
(Tex.Civ.App.
the
the Practice Act of
trial;8
present at the
or
adoption
1846 and to the
of
present
the
by
opposite party;9
the
3b.
Rules,
general design
policy
the
and
of
pleadings.10
4.
an issue
in the
not
system
the
pleading
Texas
has
been
require parties
plain
to “set forth in
It
implicit
and
is
this definition that evidence
intelligible
upon
by
manner the facts
which relevant also to an issue raised
they rely.”
by
trial
pleadings
finding
is not a basis for
consent.
v.Watts Watts.
Wilhite,
Gunnells
Co. v.
389
Sand
S.W.2d
1965,
(Tex.Civ.App.
majority
Harkey
596
Em-
writ ref’d
The
cites
v. Texas
— Waco
n.r.e.).
Stayton,
Scope
Association,
ployer’s
The
and Func
Insurance
146 Tex.
See
504,
Pleading
(1948)
tion of
proposi-
Under the New Federal
627 again Flanagan 400 Mr. testifies that p. above, For the reasons I would stated is the wire in question judgment reverse and remand the of the eight inches over approximately court. that the safe clearance Lot 43 and eight inches into feet, zone is six parking area. APPENDIX Flanagan again 420 Mr. testifies on p. following summary is a of the evi- overhangs the line Lot cross that proceedings dence and relevant to the is- eight inches. 43 by tried asks if the sues consent and other issue in 421 Mr. location p. Wray how wire is dependent upon pleadings. is and Mr. the pole plumb VOL. IV agrees. Flanagan asks if a in 422 Mr. shift 159 p. Wray Mr. Griffith testified p. cause a could displacement cross-examination pole Flanagan Mr. states the wires. the wire which came in contact overhang that it not with the is possible with the could pole spud installation question. Lot 43 about foot. Flanagan 423 Mr. testifies that the 182 Bill p. Wendell testified that the wire p. resting well in but its is plumb, was bent from pole pretty position being a class B is that, pole, three or four inches, only from the same diameter top had touched the spud pole barely bottom. wire. 184 Mr. Caldwell testified that the p. Flanagan 423-424 p. Mr. testifies that the wire which came contact with reguyed has been since the pole overhung 43 Lot spud pole date of accident. eight inches. approximately Flanagan 425 Mr. testified on p. cross 286 Mr. Caldwell testified he set p. photographs that the introduced an on the instrument monument into evidence showed that the pole marking line and the lot guyed in a was different atway determined that the wire visually the time the accident. over Lot 43. question Flanagan again 474 p. Mr. states that the being After as an p. qualified expert, eight line is inches over Lot 43. Mr. Caldwell testified that the 561-563 Mr. Crites elicits from Mr. p. Doyle installation would have been safer of CPL called Bryant, employee if the line had been "routed as an Plaintiff adverse witness, as not to so cross over differently regarding the location testimony the area ...” and CPL’s poles On Caldwell cross, Mr. restates p. locating standard eight practice poles the wire was inches over Lot “as near as possible line.” property Mr. Caldwell states the wire p. eight inches over Lot 43. 564-572 p. Mr. Crites elicits from Mr. Bryant Mr. for Crites, p. attorney regarding the testimony location Wendell Service, Inc., Marine of power relative to poles property argued to court that the power lines that, with 8' cross arms, being line, outside utility lines are often outside encroaching on Lot easement, easements. p. Mr. elicits Crites from Mr. Bryant Mr. attorney p. Wray, regarding whether testimony CPL states to the defendant/appellee, obtains easements for wires “right court that CPL’s to put overhanging private property. these lines are where they depends 576-579 Mr. from Mr. elicits p. Wray Bryant it’s the fact that upon public regarding obtaining testimony right-of-way.” *17 for easements that lines; power again 357 Mr. Caldwell testified that p. right the has a power company the line Lot which is was over granted statute to poles by put rigging launching a area. along right-of-way; a that public 362 Mr. testified that the line Caldwell p. grant cities franchises for power was over at the Lot 43 point that there is no companies; contact with the spud pole. written easement Cove Harbor; V VOL. that the installation at Cove Flanagan right 399 based Mr. testified that the Harbor was on the to p. overhung in the wire in Lot 43 public question place poles right-of-way. about 8'A inches. by 628 that the outside the line, testified to Lot was the one one closest elicits from Mr. Mr. Wray Bryant 579-584 p. regarding contacted the that pole; by spud the location testimony there were 8 foot cross that arms; of the the poles question; length the the cross the the touched arm; barely spud pole lot that there was not sufficient wire; location of the the CPL line; locating damage to a for as to the wire make standard poles as to the that the contact as nearly possible property repair; takes line and whether not this from his field located into consideration the cross arm. measurements was inside Lot 43; testifies in to Mr. had Bryant response 584 if the wire been p. that, leading Mr. questions Wray outside Lot accident would navigation owned that the district not have happened. Harbor and that there was Cove VOL. VI objection to or of the no discussion 667 Mr. Walter District Mosley, p. to the location of poles prior Engineer for testified on CPL, accident. never direct that he had received a leading Mr. Crites, 587 question, p. being about the lines complaint if Mr. there was a asked Bryant eight inches out of street governing the franchise placement right-of-way over Lot 43. at Cove Mr. Harbor; of poles leading Crites, Mr. cross, 680-683 On p. “No.” replied Bryant from Mr. elicits Mosley questions, The court asked witness the 588 p. that the are 45 testimony poles roads names of the in Cove eight length foot cross feet in with Mr. Harbor; Bryant responded that the feet, buried seven arms, he didn’t know of names. that any of that depth depends sufficiency Plaintiff offers a trial /appellant 589 p. including factors, several upon alleging CPL that the soil soil; appeared sandy; line over Lot maintained intended be that are poles negligence. 43, which constitutes when installed; perfectly plumb Denied, prior response by shift six inches to that a can pole defendant/appellee. feet at the two top pole; Lawhon, Louise p. employee generally sand, that, poles Marine Service, Inc., Wendell shift; do not that probability that she had worked for testified was “slim”; shifted that pole that six months prior company still in the that it probably the accident. set; that the same it was place leading Mr. On questions by 594-596 p. in 1962 and was set probably pole Lawhon that Ms. testified Wray, shifted. had not she did not know how much shift that, Mr. further testified Mosley alignment p. would in vertical areas, are poles in residential eight foot inch to one produce close as as possible placed high; shift at 32 or 33 feet that but clear of the line, property assumed a shift at the base of she allow fences to be property larger would the pole produce line. on the built property that, shift at top pole; further testified that Mr. Mosley p. knowledge, there had been to her Pl.Ex. Nos. 15 and the plans, in the no shift in the three pole that CPL built were CPL’s plans; death, since Wendell’s but years that the installation; pole would not know if it had that she the installation built set and and that she could not moved; say according to plans. was over Lot 43 on the if the wire further testified that Mr. 689-690 Mosley p. died. Wendell day standards require poles CPL Mr. Ms. Crites, redirect by On 596-597 p. near shall be as as in alleys had no Lawhon testified that she line, on the possible property to determine the location way line. outside of property that she was not an line; further testified Mr. Mosley p. training engineer and had no class was a 45' five pole the pole goes that she that field; eight-foot cross arm, with an times four or five pole feet and that the seven buried in all she time, day; 32' were at wires approximately in the has seen difference pole ground. above whatsoever. further testified that Mr. Mosley 692-694 p. rested.
p. plaintiff 49 inches from would be the wire Mr. Max Keller, p. *18 the center of the if this that, pole; Crites, cross-examination Mr. done, installation properly wire there would be a inevitably over the property. Mr. further testified p. Mosley he was not aware any agreements with the owners of regarding Cove Harbor the power installation. re-offers the p. Plaintiff/appellant offers regarding the Issues Special location line Lot over following and, off-the-record court both denies discussion, trial amendment and Special Issues. WALTERS,
Jerold William David
Appellant, Texas, Appellee.
STATE of
No. 11-83-233-CR.
Court of Appeals Texas,
Eastland.
July Butts, Reece, Jr.,
William T. Charles D. Antonio, appellant. for San Solis, Abilene, Jorge Atty., A. Dist. Crim. appellee. for DICKENSON, Justice. William David convicted Jerold pun- assessed his
Walters of murder1 and years.2 We for 25 ishment at confinement affirm the conviction. (Vernon (Vernon sec. 2. TEX. PENAL CODE ANN. 12.32 CODE ANN. sec. 19.02 TEX. PENAL Supp.1984) a fel- authorizes for 1974) to be a punishment the offense and declares it defines degree life or of the first as confinement for degree. ony of the first felony five than of not less than nor more term any