*1 can foebrought case of Maxwell Winner Gas under said rule. Crenshaw 944, 945, Tex.Civ.App., Co., Co., 263 S.W. Stove Home Lumber dismissed; S.W. taken on a verified error judgment Peterson v. default Co., Tex.Civ.App., to the Graham-Brown of error taken Shoe writ account and Certainly dealings question 200 S.W. appeals. The business only civil court of separate on hy court was: “Was the based three transactions should considered dealings be considered business between verifying the account so defective affidavit parties contemplated incompetent evi as the account Rule 185 as to render very brought properly and can be are as a verified that case dence?” The facts account. facts in the case before us similar affidavit. respect to the verification appellant’s points We overrule all objec case held that The in that court error and affirm hereby at the time the been made
tions had the trial court. objections but must been sustained made for the first time on could not be
appeal. point appellant raises the
The any to sustain
no evidence Introduced T.R.C.P., damages. Rule finding as to petition plaintiff's shall provides that WESTERN COTTON OIL CO. plain and concise consist of statement al. et MAYES action plaintiff’s cause of language of No. be so as shall construed pleadings that all Appeals Eastland. Court of of Texas. Civil plaintiff’s justice. The to do substantial 12, 1951. Oct. dealing a course be petition discloses appellee concerning appellant and tween Rehearing Granted Dec. advanced, involving automot- three money Rehearing 18, 1952. Further Jan. Denied biles, she was to receive out what and sets allegations appellant. The as from the by appellee money advanced amount the amount she was appellant and concisely clearly and set receive back verifying affidavit petition. The out the amount offsets shows petition appellant was entitled. to which credits petition was sufficient to be verified prima as court facie accepted by trial owing liquidated appellee. further appellant contends allege such cause petition does subject matter made the could be action as point. overrule this account. We sworn T.R.C.P., provides claim Rule account
business as agent or supported business for prima facie liquidated properly growing dealings between dealings between attorney by the brought under money demand out evidence”. affidavit * * * of a single transaction shall parties The account “founded parties. An party, be taken rule [*] [*] *2 Little, Big Spring, appellant for
James Coffee, & Thomas Thomas and Coffee & Gilliland, appellees. Big Spring, all of for GRISSOM, Chief Justice. Mayes
Glenn sued Western Oil Cotton Company, Division, corpo- West Texas ration, damages and Willie Walker for Mayes caused automobile collision. alleged was on driving Highway south Big Spring, toward behind a truck of Company, Cotton Western Oil West Texas Division, hereinafter to as West- referred approached ern; Western’s truck top highway rise turned stripe east across the center its left side whereupon of the highway, Walker, who north, was driving pick-up truck collided right front of Western’s truck glanced down the side Western’s truck Mayes’ into the front automobile, causing damages for; sued that West- guilty ern was because its agent (a) keep proper failed to lookout for the automobile and the auto- mobiles approaching highway; him on the Western’s truck to its left (b) turned side Mayes’ front auto- mobile; (c) plainly visible failed signal and audible intention to so turn; (d) keep failed the truck under (e) that control and em- Western’s ployee negligence per inse the truck operating in violation law particulars. the road in several Each alleged said acts to be a collision. cause of the Mayes’ petition Western answered by al leging, among things, other that Western’s employee was driving its truck south on a highway, two-lane approximately 20 feet ap damages. sued Western for Walk- wide, right-hand side as on north; alleged north, meeting er he was proached pick-up going driving Walker’s truck, his left side truck was Western’s when that Walker was *3 suddenly warning turned and without and if Western’s truck highway of the highway path across the right-hand side it to its left the its had continued on pick- pick-up Walker’s causing head-on Walker’s of Walker’s collided with- would have ; up to collide Western’s and pick-up the driver of Western’s truck that automobile; left, glance Mayes’ portion against a off that causing to-his truck swerved damage proximate on its left side of Walker’s a result to be was of Western’s truck of attempt negligence employee to avoid the Western’s its highway, the in an pick (a) drove its on his of the- truck left side collision but it collided with Walker’s highway; suddenly the turned its truck up, along (b) side West glanced which of automobile, Mayes’ the highway into across in front and Walker’s ern’s truck of yield pick-up; (c) truck. failed to half of the following which Western’s was main portion highway; traveled the of Mayes’ damages alleged were Western proper (d) keep failed to a and (e) lookout solely by negligence the of Walker caused keep failed its truck. control of high his left side the driving on of (a) in Faircloth, found way; (b) jury (1) the that driver of failing the truck, half Western’s truck of the main it to his left across driver Western’s turned of the portion highway, high the viola middle the of paved of of center traveled ; statutes; way (2) negligence that this penal (c) that at and was (3) tion of and proximate cause just collision, Walker was of Western’s and driv Walker’s before upon said'public colliding (4) his truck vehicles and operating proximate cause ing and Mayes’ was the collision and Walker’s and highway “while intoxicated vehicles; Mayes’ that (5) influence intoxi automobile while was under had damaged $852.92; been sum liquor,” penal violation cating (6) that statutes, negligence per pick-up constituted Walker’s was of the value of se; (7) before $750.00 that Walker to his left and after the colli (d) turned $50.00 signal sion. The appropriate found that giving of his Walker’s hos pital so; and doctor (e) do that Walker failed bills amounted to intention to $258.35- -lookout; $11,380.00 that (f) to have and proper compensate to keep a failed personal injuries. Walker for control, and his (g) his truck under was driv faculties im pick-up his when his ing just further that found before paired drinking the recent alcoholic the collision (12) Walker fail to alleged beverages. that Western each of proper lookout; keep a (13) did not fail foregoing omissions constitut acts and keep proper pick-up; control of his (16)- part Walker negligence ed and did not drive on left high- his side proximate cause colli was the way, sole (20) just and before Western’s sion. truck started turn across center alleged highway further that if it Walker was not proceeding was Western allegation across center in the Walker’s towards mistaken Western’s truck. judg- the sole cause of the The court entered negligence was col- Mayes ment on verdict for negligence Mayes was Walker lision, against Western. proximate appealed. cause Western which was thereof be- 'has Mayes was too (a) following closely point seventh is that truck; failed (b) behind to have Western’s court erred admitting the testimony of control; under (c) his automobile was that was Walker familiar with the mar dangerous excessive and at an rate driving pick-up prior value of ket his to the colli speed (d) proper keep failed sion, it $750.00, that was then worth Walker’s automobile. lookout for that after the collision was practically "Such damage testimony to worthless. was answered Walker admitted appellant’s objection over him but was not caused was predicate had not been laid because solely Western. it was caused
%83 the court failing dealer in to submit its re- was a erred shown that Walker quested Walker, the mar issues whether inquiring familiar with automobiles was collision, at the (1) time owned Walker testified ket. “while he involved and while he that was intoxicated pick-up Chevrolet liquor” under the influence intoxicating three or four months collision for action then asked: whether such to the collision. He was cause of the collision between Walker’s (a) “Q. you with the Are fair familiar Western’s vehicles and Walker’s (b) pick-up? A. Im- market value of that Mayes’ vehicles; (2) whether the time collision? mediately prior to was operating pick-up when faculties Whereupon appellant objected because *4 impaired were from the recent of drinking proper predicate has not been laid “the beverages alcoholic (a) whether this and it is not that he is dealer in and shown a negligence proximate was a (b) and cause with automobiles or the market.” familiar of Walker’s (c) collision with Western’s argued Whereupon Walker’s counsel Mayes’ and (d) vehicles. a that man a car familiar with owning jury from which the There was evidence qualified “price,” it and state to its that Walker was un- could have concluded objection predicate a being laid. intoxicating liquor influence at der the overruled, whereupon following the occur- the time of the collision. Western’s wit- red : that testified to the effect as Western’s ness Walker, “Q. you familiar Mr. vehicles near the and Walker’s met crest pick-up with fair market value that slight a the driver of Western’s hill that collision? A. I immediately truck drove to his across the center left say seven a half. would it was worth and paved highway because Walker was “Q. think be the You would $750.00 the highway left side his it? A. I think so. fair market value of pulled Western’s driver to his left in an car “Q. immediate- What was worth attempt Walker’s colliding to avoid A. ly collision? what it after the Just pick-up. Walker contended he was driv- weigh scrap iron. out for would ing on side of the right highway his “Q. anything there value to Was Western’s truck cut to its left and ran into sir, No, nothing A. I automobile? him, causing pick-up Walker’s glance could see.” the side down of Western’s truck and into Mayes’ automobile. Why Western’s driver not It was essential wit ¡had to his left was the turned essence of the he be a dealer automobiles. If ness question dispute. main by As shown market value of knew testified the preceding to the pleadings, reference before and after pick-up immediately Walker Western were each contending prima he have shown the collision would guilty other was negligence qualified as to testify he facie-that proximate was a cause of the collision It is evident times. from value its driving on his left side quotation that such was foregoing in failing keep proper a lookout, failing testimony. We conclude effect control, keep his vehicle under and the not Texas Pacif is shown. error reversible like. We concluded that have said issues Taylor, Tex.Civ.App., Co. v. ic &Coal Oil condition, requested Walker’s relative to 1111; Texas North East 47 S.W.2d Court, Western and refused not Inc., Hodges, Tex.Civ.App., Lines, v. constitute ultimate of fact issues affirmed, 386, 389, 138Tex. 141 S.W.2d not err in failing Court did submit them. City Falls v. of Wichita 158 S.W.2d Mauldin, Wilson, the recent case of Benoit Tex.Com.App., 792, 798, Supreme affirmed Court, our 239 S.W.2d Judd, P. Co. D. S. &Worth opinion Smith, Fort by Judge in an held that 1032, 1036. Tex.Civ.App., 4 S.W.2d merely proof is of intoxication evidentiary be ninth, fact to in de tenth and considered eighth, termining person guilty whether the contention present points eleventh sively might consti shown that plaintiff some act or omission which was intoxicated' proximate cause of reverse tute would “ ** * There, fact, fact, injury. issues were if it was a submitted under deceased was deceased was inquiring whether intoxicated influence in- toxicants, neg such constituted would as matter and whether condition of law operated deprive ligence explo and a defendants in right error damages to recover that caused death. There for his sion Wilson’s death as they did. That he was inquiring was also an issue whether or not under the influence of would be hose intoxicants a fact the Wilson disconnected the from jury right to take gas jet. The court into consideration held had a in determining whether right guilty to consider evidence of Wilson’s in contributory negligence not, hut it determining whether or not toxication not of itsef convict wall; neg- the hose deceased disconnected ligence.” that evidence of intoxication constituted proof evidentiary of an fact to be con Scott Gardner, supra, was a suit for sidered in determining whether damages under guest statute, 6701b, Art. or not was of some negli act of *5 Vernon’s Ann.Civ.St., wherein Gardner gence, that proof but of intoxication alone charged Scott acted reck with heedless negligence. not convict deceased of disregard less conscious indifference court “We The said: to fail find in this rights to the guests. his automobile single part a act or omission on evidence Scott primarily that, defended theory on the contributed, or could have which contrib drunk, being he could not be guilty “con uted, explosion resulting in his un to the scious” rights. indifference to their The intoxication, death. Evidence timely Supreme Court, opinion by an Judge alone, does not standing negli establish Smedley, answered question it whether gence proximate or cause. There must necessary was that the matter Scott’s in other misconduct evidence of sufficient toxication jury, be submitted to to establish, by preponderance a to of the evi gether question with the of whether he was dence, person per that the was in such mental state that his actions evi act, forming perform some or failing denced conscious indifference to the act, ordinarily prudent an per some which rights plaintiff, as follows: “The performed. have son Houston & would T. question appellant’s intoxication was not- Reason, 613; Ry.C. Co. v. 61 Tex. 38 Am. an utimate fact issue it and was not nec Jur., 883, par. (Italics ours.) 203.’’ p. essary that it be submitted to the jury as question as to deceased’s intoxica- The The issue. trial court’s action not so- tion and whether such intoxication submitting was correct. in negligence proximate cause toxication was a fact to be considered submitted injury were as ulti- jury, together circumstances, other jury’s The answers there- issues. fact mate special answering third issue in the judgment. the basis for the to constituted charge, trial court’s opinion our such issues were Supreme held Court Our sufficiently correctly submitted the issues cause was not ultimate question appellant’s as to heedless and theory. erroneous on an submitted disregard, reckless or conscious indiffer conclusions, support court of said In L.R.A.1917-A, ence.” also See Hicks others, Louis, F. & cited, St. S. T. among Frost, Tex.Civ.App., 611, v. 606, 195S.W.2d Morgan, Tex.Civ.App., 220 S.W. Ry. v.Co. NRE; Langham Talbott, Ref. v. Tex.Civ. Gardner, v. 137 281, Scott Tex. 282, and 987, 991, App., 211 NRE; Ref. S.W.2d 518, 513, 141 A.L.R. 628, 156 S.W.2d Ry. Reason, T. C. Houston & v.Co. 61 Tex. Morgan made The contention Watson, Tripp v. Tex.Civ.App., 235 plaintiff that the finding case that 677, 680, NRE; Ref. East Texas the time accident not intoxicated Loftis, Freight 148 Lines Tex. evidence sustain it. The 242, 613, 223 evidence had conclu- S.W.2d. said if court requested tion. The answer an inter issues of witness to Appellant contends support rogatory party becomes evidence of the issues of fact. ultimate were Smith, it, regardless of offering who it cites Peveto v. elicited this contention deposition. is statement where such Tex contained Tex. 133 S.W.2d Gay, for as the basis & P. Co. 88 Tex. 30 S. apparently constituted sues 543, 545; the W. appear Boggs, Schallert v. Tex. Civ. judgment. It does App., 1061, 1062; that case that the 204 S.W. Willson v. contention was made Kuhn, whether what 96 S.W.2d ultimate fact issues were do, drunk, did, defendant or failed while Faircloth, the driver Western’s omission, act, constituted truck, testify. did not His statements plaintiff's which was a patrolman after the accident were injury. appears contended It been shown to be gestae. They res hear Peve only that there was no’evidence incompetent. say testimony intoxicated, proxi awas to’s while Mayes, to the statement party made injuries. Re mate cause of deceased’s suit, patrolman to the which conflicted the Peveto case should gardless of whether testimony, against with his was admissible should fol think we distinguished, we be impeachment for the purpose of Supreme decision of the latest our low only. Tripp Watson, Tex.Civ.App., Wilson, Court, supra, which we Benoit v. 677, 681, points Ref. NRE. Said think is correct. clearly are overruled. deposition Highway Patrolman money, Issue 9 was “What Taylor was taken Walker. preponderance any, you do find deposition elicited in said evidence, paid cash, if now *6 patrol- told driver truck of Western’s compensate reasonably Walker for Willie after the accident that Walker was man injuries sustained, any, personal he which if came Western’s side of the as Walker road ques- as a direct result of the collision in driver a rise that Western’s over and said issue the tion?” connection with attempt in to his left an to avoid swerved “In gave following court instruction: Appellant contends the hitting Walker. the last in foregoing connection with issue refusing erred to admit such testi- court in given amount to be in an- determining the mony. complains the re- Appellant also thereto, any, you take into may swer if deposition part admit that fusal to pain, worry consideration and mental accident, that, shortly after the to the effect anxiety, any, if Willie suffered Walker patrolman driver how asked Western’s past, in as direct result said colli- happened the accident driver told said and injuries sustained and sion and the therein him Walker was on Western’s side of the anxiety, any, pain, worry mental if and driver road Western’s decided the and best which reason- the said Willie Walker will way to avoid Walker to cut back to future, if ably probably and suffer in his left and attempt that he so any, injuries direct result sustained' pick-up. Appellant miss Walker’s also collision; you may and further con- said complains of admit, the refusal to ability, any, sider the if earning loss of limitation, deposition the testimony by said Walker has the Willie sustained which patrolman, by Walker, said to the elicited injuries as a 'direct result re- past in the that, accident, shortly effect after the collision; and such the loss of' ceived in patrolman Mayes; had a conversation with any, capacity, which said earning if Mayes said Western’s truck at “all reasonably and probably Walker will Willie just once went off to its left side hand in- result future as direct in the sustain testimony the road.” The toas what juries collision him in the impeachment received said admitted for pur- poses only. question.” obj made ections to Appellant it several
We think is immaterial on fhe worthy the one dis- question admissibility but deemed as issue evidence appellant (e), number wherein testimony deposi who elicited the in a cussion is trial; pulled time that he had five conclusively showed evidence asserted time, more disabilities, and the first a while had pain waited and physical Walker had pulled; any having pain that wasn’t he arising other causes anxiety from mental pulled; him to have his teeth the colli- caused injuries resulting from than the upper of his got five of five showed sion; conclusively that the record broken, lower teeth loose the wreck and teeth his chest and trouble with had sore; they stayed tighten up never did “back in 1948 migraine headaches Wherefore, x-rayed re- that he was advised appellant had them the accident.” to have coun them extracted. to said instructions to add quested the court consider asked Walker you “But will not sel if claimed had following: accident, ability, pulled if teeth as a earning result disability or loss of any any, worry replied: and mental which Walker any pain, any, or if Walk- any, said Willie anxiety, which altogether say “A. I it was wouldn’t diseases, any other er from They result too of this accident. were not in the injuries he received than good they (It loose. is evident the but your at question, arriving collision witness meant his teeth were not loose be- this issue.” answer accident). fore requested refused The court “Q. Your teeth bad were kind assigned as refusal such instruction and shape before the accident? A. Some evidence Appellant contends error. them in the front had cavities in them disability had diseases and shows Walker I don’t think I had cavities in the rest injuries received with the connected them.” He calls attention the collision. to Walker The evidence with reference given a certificate that Walker was x-rayed shows, back that he had having his discharged disability he was when examination in at the Veterans final army, being occasioned disability Hospital Amarillo; that as a result of stomach, that he or ulcerated a nervous percent pay this for ten examination his disability percent benefit paid ten evidently, stopped, disability was 1948; that in 1948 he had the first of until longer was concluded no suffered examined at a headaches, migraine any disability. conclusively At least, it is *7 back x- Hospital and had his Veteran’s shown that in 1948 the Adminis- Veterans pulled his after rayed; had teeth that he gave complete physical tration Walker a teeth testified that his the accident payment examination terminated that the accident but before good” “not too benefits. testified disability Dr. Sanders accident; by been loosened five had that Walker first came to see him about some in testified cloudiness that a doctor 5, July 1950; principal complaint that his x-rays made lungs his was shown tired, energy; was that no had lost teeth that Walker his chest and difficulty that most from his support appel pyorrhea. because of down; waist that he examined him judgment should lant’s contention x-ray pictures; made that there some the court refused be reversed lungs; cloudiness in his that Walker said con requested instruction to additional smoking packages cig- two been injuries by any sider condition not caused daily doctor advised to arettes and the him Ry. collision, it cites in the Dallas received smoke less. With reference to the cloud- Ector, 505, 131 Tex. 116 & Terminal Co. lungs, in the the doctor iness testified: 683. S.W.2d “A. That can be by caused various 5, August occurred collision The things smoking, excessive such as exces- December, was had With trial dust, inhaling frequent dirt and sive cold. teeth, testified, on reference to his ' “Appellant’s As I Counsel: appellant, it, that understand cross-examination to result that trouble is claimed pulled January, from having started his teeth pulled had all been this accident. they
287
No,
agree
“Walker’s
Counsel:
.sir.
advance that the
ar
sum thus
rived at
but,
constitute their verdict,
would
“Appellant’s
It
not claimed
Counsel:
is
on the contrary, agreed
through
go
to
such
as a
accident?
result
this
process
purpose
for the
at a
arriving
sir, he had that
No,
Counsel:
“Walker’s
starting
point
their discussions as
to
claiming
before and after and
are not
we
amount
and,
thereafter,
to be awarded
that.”
concluded that
such amount
awas
that issue
We call attention to
fact
sum to be awarded.
words,
In other
inquired
compensate
what
judge presumably
trial
alleged
found the
“as a direct
injuries
Walker for
sustained
misconduct did not
being
occur. There
collision.”
statement is
This
result
support
finding,
such
the de
every
repeated in connection with
matter
cision of the trial court is final. The testi
they
the court
instructed the
mony
juror
aof
felt bound
might
amount.
determining
consider in
agreement, agreement
there was no
In addition
statement in
issue it
to such
bound,
be
merely
testimony as to the
repeated
times
the instruction.
It
four
process by
mental
which he arrived at his
they
clear to the
should
been
verdict and not
Barrington
admissible.
only
conditions which
consider
those
could
Duncan,
510,
462, 464;
140 Tex.
169 S.W.2d
directly
the collision.
resulted
Sproles
Lines,
Freight
Long,
Inc. v.
the record with
We have studied
494,
140 Tex.
642, 644;
Mary
referred
matters
reference
each of
land Casualty Co. v. Gideon, Tex.Civ.App.,
by appellant
necessitating
additional
213 S.W.2d
Watson
In
v. Texas
requested
it and have con
instruction
demnity
Co.,
Ins.
147 Tex.
210 S.W.2d
prior
cluded that Walker’s infirmities
to the 989, 992.
require
collision were insufficient
is affirmed.
court to
instruction.
additional
We
the evidence is
think
insufficient
Rehearing
On Motion for
connection between Walker’s
show causal
Appellant has filed an able mo
prior
any pain
disability
infirmities
for
tion
rehearing which
contends we
be
after the accident to
so con
suffered
holding
erred in
that the trial court prop
closely intermingled
fusingly
that a
erly refused to submit issues inquiring
jury might
awarding
be misled into
dam
whether Walker drove an automobile on a
ages
infirmity
that existed
any
for
public highway while intoxicated and
Dallas
& Terminal Co.
collision.
whether such
act
awas
Orr., 147 Tex.
and, further,
collision
that we erred
prescribed
that the test
We conclude
in the
holding
the court properly refused
application
for
of the rule
Orr
stated
case
*8
appellant’s requested additional instructions
the Ector case
the Ector case
shows
is
9,
in connection with issue
effect that
applicable
not
here.
damages
awarding
jury
could
point is that
thirteenth
pain
consider any
or
Aggsllajal’s
disability caused
the court’ erred
to set aside
refusing
infirmity,
pre-existing
by any
or
disease
verdict because
arrived
injuries
thing other than the
received in the
damages
amount
to Walker
awarded
collision. After
consideration,
careful
we
chance;
lot and
the jury fixed the llave concluded that we erred in such hold
damages by taking
ings.
sum each
award,
juror
adding
wanted
them and
in Benoit Wilson,
The decision
v.
Tex.
twelve,
thereby
the total
dividing
Sup.,
award
265, page Virginia-Poca Norman v. 405, 857, Co., 68 W.Va. 69 S.E.
hontas Coal N.S., 504;
858, L.R.A., Spratling
Butler, Tex.Sup., 240 S.W.2d Beckman, 85 S.W.
Foster 789, 792,writ ref.
2d trial, toas On another same, disease is infirmities and to the
the court should instruct improper recovery elements
exclusion the decision in Dallas in accord with Ector, & Tex. Terminal Co. 686. rehearing granted.
The motion for is reversed and the cause re-
manded. v. BLASINGAME. MOTOR LINES
SUNSET
No. Appeals Dallas. Texas. Civil
Court of
July Sept. 21,
Rehearing Denied