DIXON, Chief Justice.
This is a suit for wrongful death brought pursuant to Art. 4675, Vernon's Ann.Civ. St. by Ruth Stevens, Independent Executrix of the Estate of Thomas H. Stevens, deceased, for the benefit of herself as surviving widow, aged 30 years, and for the two minor children, Susan Delinda Stevens, aged 7 years, and Thomas H. Stevens, Jr., aged 4 years.
Appellee alleged that Thomas H. Stevens, aged 32 years, was killed August 23, 1958, in the City of Dallas, Texas, when an automobile in which he was riding was negligently driven against a tree by appellant Carl B. Shafer. Appellee pled both ordinary and gross negligence. She also pled and introduced evidence to the effect that Thomas H. Stevens, at the time of his death was Executive Vice-President of Tex-Mex Corporation at a salary of $1500 per month with the prospect of a salary increase in the near future to $2500 per month; and that he was regularly contributing from $800 to $1100 per month to his family as living expenses.
A judgment based on a jury verdict was rendered in favor of appellee for $253,151.51, allocated as follows: For Ruth Stevens surviving widow, $185,118.51; for Susan Delinda Stevens, $29,112; for Thomas H. Stevens, Jr., $36,920; for Ruth Stevens, Independent Executrix, $2011, as burial expenses.
Appellant's first point on appeal is that the judgment is fundamentally erroneous because of the failure of appellee to join as plaintiffs, or to sue for the benefit of the surviving parents of her deceased husband.
Art. 4675, V.A.C.S. provides that actions for damage arising from death shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the deceased.
The parents are not parties to this suit, nor is the suit brought for their benefit. That they were living at the time of the trial is not revealed by the pleadings or motion for new trial. It is revealed only by examination of the statement of facts, wherein the testimony of appellee is reproduced as follows:
Appellant has cited numerous cases in support of his contention that failure to join or to account for the absence of any one of the named beneficiaries under the wrongful death statute is fundamental error. Among the cases cited are East Line & Red River R. Co. v. Culberson, 68 Tex. 664, 5 S.W. 820 (1887); Fort Worth & D.
However, in this case appellant did not during the trial or in his motion for new trial make any complaint as to the non-joinder of the parents of deceased. Complaint of their non-joinder is made for the first time in appellant's brief on appeal. Appellee contends that in such a state of the record it must be held that appellant has waived the right to urge error by reason of the non-joinder of the parents. We agree with appellee.
In 1941 our present Rules of Civil Procedure were promulgated, including Rule 374, Texas Rules of Civil Procedure. This Rule expressly provides that a ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived. Our courts have held that notwithstanding the said rule, truly fundamental error may still be noticed for the first time on appeal; but the concept of fundamental error is much narrower now than it was under the old procedural statutes.
It is now held that when an error involves matters of public interest and the record affirmatively and conclusively shows error, or affirmatively and conclusively shows that the court rendering judgment was without jurisdiction of the subject matter, the error will be regarded as fundamental. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77, 85. Except in such instances, fundamental error is now rare indeed. See article by Associate Justice Joe Greenhill, entitled "Presentation of a Case to the Supreme Court of Texas", 38 Tex.Law Rev. 538, 541.
Moreover it has been held many times, both before and since promulgation of the new rules in 1941, that when it is necessary to examine the statement of facts to discover error, the error is not fundamental. O'Connor v. Gable, Tex.Civ. App., 298 S.W.2d 209; Krottinger v. Marchand, Tex.Civ.App., 252 S.W.2d 217; Insurors Indemnity & Ins. Co. v. Associated Indemnity Corp., 139 Tex. 286, 162 S.W.2d 666, 670; White v. Glengarry Oil Co., 137 Tex. 626, 156 S.W.2d 523; Texas & Pacific Ry. Co., v. Lilly, 118 Tex. 644, 23 S.W. 697, 699; Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903; 3-B Tex.Jur. 39.
In the situation presented to us here, where appellant did not complain until the case was on appeal, and where even then it was necessary to examine the statement of facts to discover error, we hold that appellee's failure to join the parents of deceased as parties or beneficiaries is not fundamental error. Appellant's first point on appeal is overruled.
In his second and third points appellant asserts that there was no evidence or in the alternative the evidence was insufficient to support the submission to the jury of special issues Nos. 2, 4, 7, 9, 12, 15, 21 and 23. Notwithstanding their wording these points must be considered "no evidence" points. See Mayflower Inv. Co. v. Stephens, Tex.Civ.App., 345 S.W.2d 786, 797, quoting from an article by Chief Justice Robert W. Calvert in Tex. Law Review, Vol. 38, No. 4 for April 1960.
Special Issue No. 2 inquired whether the motivating influence of appellant in transporting Thomas H. Stevens in the automobile at the time of the collision was the furtherance of a business deal in which appellant had the expectation of tangible benefit of pecuniary nature. Issues were submitted to the jury inquiring whether (a) appellant was driving the car at an excessive rate of speed, (b) in excess of 35 miles per hour, or (c) failed to stop his
The obvious purpose of special issue No. 2 was to obtain a fact finding which would furnish a basis for determining whether Stevens was a guest within the meaning of the Guest Statute, Art. 6701b, V.A.C.S. The purpose of the others of the above named special issues was to determine whether (if it had been found that Stevens was a guest within the meaning of the Statute) appellant's acts were done in such a manner as to cast liability on appellant under the guest statute.
Later in this opinion we shall review the material evidence. For the present we shall merely say that there is some evidence of probative force in the record to support the submission of the issues. That being so it was the duty of the court to submit the issues even though the court may have felt that the evidence was insufficient to support an affirmative answer by the jury. See Wood v. American Security Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559, 565, and authorities there cited.
Appellant's second and third points are overruled.
In his fourth point appellant says that the affirmative answer of the jury to special Issue No. 2 is against the great weight and preponderance of the evidence. The nature of this point requires a careful study of the evidence.
Appellee, Mrs. Ruth Stevens, testified that her husband had helped organize Tex-Mex Corporation, of which he was Executive Vice-President. The corporation had been formed for the purpose of promoting various business interests. The first good thing that it had done was the building of Holiday Inn Hotel. Because of the type of business he was in, her husband would sometimes do more work after business hours than he would during business hours.
Carl B. Schafer testified that he is a promoter and broker with the continental United States as his territory. It is his business to find capital for business ventures. He and Joe D. Farris had been discussing mining properties in Arizona, in which properties Farris had an interest he was desirous of developing. Schafer knew that Tex-Mex Corporation had mining equipment in Arizona which was idle at that time. About 4:00 P. M. Schafer called Stevens at his office and arranged a meeting. Stevens agreed to meet Schafer and Farris that evening at the Skyriders Club at Holiday Inn Hotel on Lemmon Avenue. Stevens told Schafer he would arrive late, as he first had to attend a cocktail party elsewhere. He arrived about 9:30 o'clock that evening.
There is no doubt this meeting was a business appointment. We quote from Schafer's testimony:
Schafer testified that toward the latter part of the evening they quit talking business and were merely enjoying a social visit. The Skyriders Club closed at 12:00 midnight. Schafer, Farris and Stevens had to leave. They decided to go to Trader Hank's, which operated at later hours. He testified that they had already quit talking business, and the transfer of their activities to Trader Hank's was purely a social affair. However, other parts of his testimony are to the contrary. Again we quote from his testimony:
David Witts, attorney for Tex-Mex Corporation, and a member of the law firm which represents appellee, testified that he was at the Skyriders Club that evening attending a family party. Schafer and Farris were seated at another table. About 9:30 o'clock Stevens arrived and sat down at the table with Schafer. Later in the evening Stevens asked Witts to come to Schafer's table to discuss the Arizona mining deal. Witts joined Schafer's party for a while but declined to give an opinion about the Arizona deal until he had more factual information.
We shall not further quote or summarize the evidence. There was a conflict in the testimony as to whether the motivating influence of appellant Schafer in transporting Thomas H. Stevens at the time of the accident was the furtherance of the business deal in which Schafer had the expectation of tangible benefit of a pecuniary nature. But it is our opinion that the affirmative answer of the jury was not so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong.
Appellant in support of his fourth point cites us to Gregory v. Otts, Tex.Civ.App., 329 S.W.2d 904; Webb v. Huffman, Tex. Civ.App., 320 S.W.2d 893; Easter v. Wallace, Tex.Civ.App., 318 S.W.2d 916; El Paso City Lines v. Sanchez, Tex.Civ.App., 306 S.W.2d 396; Young v. Bynum, Tex.Civ. App., 260 S.W.2d 696; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022, and Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190.
Each of the above cases is to be distinguished from the case we have here. In Raub v. Rowe, Rowan v. Allen, Young v. Bynum, and Easter v. Wallace, supra, the relationship between the parties was either that of friendly neighbors or relatives "each glad to contribute to the happiness and welfare of the other." The fact that they may have shared expenses on the trip did not alter their relationship. In the case now before us appellant Schafer, as shown by his own testimony, was seeking a pecuniary profit from a prospective deal.
In Burt v. Lochausen, supra, it was undisputed that the parties had concluded their business by noon, and the rest of the afternoon went about their own devices in search of pleasure. In the instant case Schafer himself testified that the business had not been concluded, and that part of his promotional method of approach to a business deal was to quit talking business and to "play" for awhile.
In El Paso Lines v. Sanchez, supra, the invitation to lunch was merely a social invitation, not a business invitation. As the opinion says the main purpose was to eat. If the main purpose had been to discuss business the parties could better have stayed at the tourist court. In the instant case the parties had to leave the Skyriders Club because the Club closed at midnight. In order to continue their conference they had to transfer their conference to another location.
Gregory v. Otts, supra, involving a service station attendant, is actually authority in favor of appellee not appellant.
Appellant argues that in order to take the case out of the guest statute there must have been a tangible benefit which flowed to appellant. We agree. But the tangible benefit need not have been the actual payment of money by Stevens to Schafer; nor need their business trip have resulted in a consummated deal. If Schafer's motive both in the business discussion and the subsequent entertainment of Stevens as a prospective customer was to obtain a contract from Tex-Mex Corporation, which contract would net Schafer a money profit, we think the case is not governed by the guest statute. This view is supported by these cases: Gregory v. Otts, Tex.Civ.App., 329 S.W.2d 904; Hernandez v. Castillo, Tex.Civ.App., 303 S.W.2d 508; Burnett v. Howell, Tex.Civ. App., 294 S.W.2d 410; Johnson v. Smither, Tex.Civ.App., 116 S.W.2d 812; and Elkins v. Foster, Tex.Civ.App., 101 S.W.2d 294. Appellant's fourth point is overruled.
Appellant's fifth point on appeal alleges that the jury's answers to special issues Nos. 4, 7, 9, 12, 15, 21 and 23 that the conduct of appellant was "in heedless and reckless disregard of the rights of others, including Thomas H. Stevens," is against the great weight and preponderance of the evidence.
We agree with appellant. But before giving our reasons we shall review the material evidence bearing on the point.
Valley View Lane east from Marsh Lane toward the intersection with Hillcrest Avenue is a black top crowned road, but it is narrow, rough and sometimes bumpy. There is a curve in it at Dooley Road, and another curve in it just east of the intersection with Hillcrest Avenue. This latter curve, which turns rather sharply to the left, is of such a nature as to give somewhat the appearance of a dead end at the intersection. Police Officer Horn testified that this curve cannot be traveled safely at a speed in excess of 35 miles per hour. There was no street light at the intersection. There was a stop sign on Valley View Lane. Appellant's car did not stop at this stop sign. The scene of the accident is in a residential area in the outskirts of the City of Dallas.
Police officers Horn and Greenhaw, both trained as accident specialists, both testified that continuous skid marks of appellant's car began 140 feet from the tree and ran past the stop sign. Prior to these continuous skid marks there were "skippy" skid marks. One officer estimated the car's speed at 70 to 75 miles per hour as it approached the intersection, the other officer at 85 to 90 miles per hour. The car's speed at the moment of its impact with the tree was estimated to be 40 to 50 miles per hour. The speed limit on Valley View Lane was 35 miles per hour. A large tree was located at the southeast corner of the intersection. After striking the tree appellant's car whirled to its right, clockwise, and came to a stop facing southwest in a ditch on the right hand side of the road. Officer Horn testified that there is a blind corner at the intersection, the view being obstructed by a hedge on the northwest corner.
Officer Horn testified that the distance from Holliday Inn Hotel to the intersection of Valley View Lane and Hillcrest Avenue is 10.3 miles. Appellee undertook to show that appellant's car traveled this distance in eight to ten minutes. A waitress at Holiday Inn Hotel was waiting for a taxicab to take her home. She noticed the Hotel clock showed it was 12:25 A.M. She saw the three men leave in the car at a time she estimated to be 12:30 or 12:32 A.M. Another witness said that while sitting on her front porch she heard the crash of the car against the tree at a time estimated by her to be between 12:32 and 12:40 A.M. A third witness, on his way home nearby, stopped at the scene after the accident at a
The above testimony, which was uncontroverted, may not establish the time and speed elements with that accuracy for which appellee contends. But it does tend to show that in traveling the 10.3 miles between Holiday Inn Hotel and the scene of the accident appellant's car was driven for most of the way at a speed well in excess of the speed limit of 35 miles per hour.
Appellant himself, testified that he was not familiar with the area between Holiday Inn Hotel and the intersection where the accident occurred. Since appellant was an interested witness, his testimony, though uncontradicted, is not conclusive. It did no more than raise a fact issue. Nevertheless his testimony is not evidence that the exact opposite of what he said is true. To reject his testimony would be to leave no evidence whatever as to whether appellant was familiar with the road and knew beforehand of its hazards. Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945; R. T. Herrin Petroleum Transport Co. v. Proctor, Tex., 338 S.W.2d 422.
We agree with Justice Jack Pope when in Hernandez v. Castillo, Tex.Civ.App., 303 S.W.2d 508, 510 he says: "The line between ordinary negligence, Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001, and gross negligence, Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 is not easily drawn." However, the authorities have given us some guide posts. The phrase "heedless and reckless disregard for the rights of others" is synonymous with gross negligence. Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001, 1003; Sims v. Smith, Tex. Civ.App., 332 S.W.2d 99. We also find the following holdings: Excessive speed alone is not sufficient to support a finding of gross negligence. Bruton v. Shinault, Tex. Civ.App., 314 S.W.2d 143; Webb v. Karsten, Tex.Civ.App., 308 S.W.2d 114; Bullock v. Atlantic Refining Co., Tex.Civ.App., 289 S.W.2d 618. Even a combination of acts of ordinary negligence will not necessarily constitute gross negligence. Sims v. Smith, Tex.Civ.App., 332 S.W.2d 99, 101; Ray v. Zackey, Tex.Civ.App., 329 S.W.2d 350; Hernandez v. Castillo, Tex.Civ.App., 303 S.W.2d 508; Wood v. Orts, Tex.Civ. App., 182 S.W.2d 139; Mayer v. Johnson, Tex.Civ.App., 148 S.W.2d 454; Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022. Momentary thoughtlessness, inadvertence, or error of judgment is not enough. Sims v. Smith, Tex.Civ.App., 332 S.W.2d 99. There must be a conscious indifference to the rights of others. Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001; Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820. Failure to stop at stop sign is not sufficient. Hernandez v. Castillo, Tex.Civ.App., 303 S.W.2d 508; Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001.
In our opinion the evidence in this case is insufficient to support the jury's verdict that appellant drove his car on the occasion in question with heedless and reckless disregard for the rights of others, including Thomas H. Stevens. We so hold because it seems to us that the evidence will not support a finding that appellant drove his car with conscious indifference to the rights of others. As we have already pointed out if the jury did not believe appellant's testimony that he was not familiar with the area traveled by the car, there is no evidence at all on that question. There is no evidence that he knew beforehand the hazards of the road, yet knowingly and with conscious indifference ignored hazards of which he had foreknowledge, as is the case in Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820; Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520, 521 and Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571. In the instant case appellant Schafer, as shown by the continuous skid marks extending a distance of 140 feet before the car struck the tree, tried to stop, and did slow down,
We sustain appellant's fifth point on appeal. However, our sustaining of the point is not decisive of the appeal, for we have held that Stevens was not a guest within the meaning of the Art. 6701b, V.A. C.S.; but was a business invitee. That being true, appellant would be liable for ordinary negligence, and the evidence and jury verdict establish ordinary negligence on his part.
In his sixth point on appeal appellant charges error in the form and wording of special issue No. 2. The issue inquired whether "the motivating influence of defendant Carl B. Schafer, in transporting Thomas H. Stevens in the automobile * * * was the furtherance of a business deal in which the defendant Carl B. Schafer had the expectation of a tangible benefit of pecuniary nature?"
Appellant says that the word "expectation" was confusing and misleading and would entitle the jury to answer the issue in the affirmative even if there was only a slim chance of a tangible benefit.
We see no merit in appellant's sixth point. In our discussion of appellant's fourth point we agreed that in order to take the case out of the guest statute there must have been a tangible benefit which flowed to appellant. But we also stated that the tangible benefit need not have been the actual payment of money, nor need their business trip have resulted in a consummated deal. It is undisputed that appellant as a broker invited Stevens to a meeting with Farris and himself for the primary purpose of endeavoring to induce Stevens, as Vice-President of Tex-Mex Corporation, to invest money in Farris' Arizona mining project at a profit to appellant. Stevens was well aware of this purpose. Whether appellant's efforts ultimately would have been unsuccessful is immaterial to the issue here. It is the primary purpose of appellant in inviting and transporting Stevens which must determine the status of Stevens under our guest statute.
In any event, if there was error in the form in which the issue was submitted, it was harmless error. In overruling appellant's fourth point we in effect held that this case does not come within the Guest Statute, Art. 6701b, V.A.C.S., therefore, appellee did not have to prove gross negligence, or heedless and reckless disregard. It was necessary for appellee to prove only ordinary negligence. Appellant's sixth point is overruled.
In his seventh point appellant complains because the court's definition of heedless and reckless disregard of the rights of others omitted the element of a persistent course of conduct, citing Sims v. Smith, Tex.Civ.App., 332 S.W.2d 99; Bowman v. Puckett, 188 S.W.2d 571, 575; and other cases.
The trial court gave the following definition:
It was not error for the court to omit the element of a persistent course from its definition.
In the Fancher case, above cited, at pages 821-822 of 314 S.W.2d our Supreme Court discusses the question of a "persistent course", and holds that in determining a host's liability to a gratuitous guest on account of alleged gross negligence the question depends upon the combination of circumstances present at the particular time and place, not on the period of time involved.
We shall not further go into the subject, for here again we have a situation where, if there was error, it was harmless error. As we have heretofore pointed out in our consideration of appellant's fourth point we held the evidence sufficient to uphold the jury's verdict that the motivating influence in appellant's meeting and transporting Stevens was the furtherance of a business deal from which he expected to make a profit. It was not necessary to prove gross negligence. It was not necessary to define heedless and reckless disregard for others. Appellant's seventh point is overruled.
In his eighth and ninth points appellant says that the trial court committed error in commenting to the jury on the credibility of (8) appellant Schafer, and (9) appellant's witness Ralph Snyder which, said errors were each calculated to cause and probably did cause the rendition of an improper judgment.
Appellant cites several instances when he claims the court commented on his credibility. For example we quote these excerpts from the cross-examination of appellant:
Appellant Schafer at an earlier date had testified that he was driving the car when the three men left Holiday Inn Hotel, but that after he failed to turn to the left on Northwest Highway at Stevens' directions, he stopped the car and Stevens took over as driver of the car. At this trial he changed his testimony and stated that Stevens had directed him to turn to the right on Northwest Highway. It was in this connection that the following cross-examination took place:
In our opinion the statements of the trial judge as above quoted do not constitute a comment on the credibility of appellant. In Texas Mexican R. Co. v. Bunn, Tex.Civ.App., 264 S.W.2d 518, 527, Justice Norvell, now a member of our Supreme Court said: "A trial judge is necessarily allowed some discretion in expressing himself while controlling the trial of a case, and a reversal of a judgment should not be ordered unless a showing of impropriety, coupled with probable prejudice, is made."
A judge on his own motion may exclude improper testimony, McCormick & Ray "Texas Law of Evidence" Vol. 1, p. 20, Sec. 22; 41-B Tex.Jur. 194, and cases cited. It is permissible for a judge to instruct a witness to give responsive answers, and such instruction standing alone is not a comment on the weight of the evidence.
On a third occasion during the cross-examination of appellant Schafer proceedings are shown as follows:
At this point counsel for appellant objected stating that the answer was responsive to question asked. Counsel then requested that the instruction be withdrawn, which request the court overruled. Thereupon counsel moved for a mistrial. This motion too was overruled. A recess was taken at this point. When court reconvened appellee's counsel requested the court to withdraw the instruction. In response to this request the court withdrew his instructions as follows:
After the court had withdrawn his instruction counsel for appellant made a motion as follows:
Thereupon the questions and answers were read again to the jury.
Do these proceedings reflect reversible error? In our opinion they do not. In the last instance the error, if there was one, was cured by the court's withdrawal of his previous instructions and sustaining appellant's motion to have the court reporter
Appellant Schafer testified that not he but Stevens was driving the car at the time of the accident. In corroboration appellant offered the testimony of Ralph Snyder, who as an expert witness gave his opinion that Stevens was driving the car.
Snyder identified himself as a safety engineer with an office in Oklahoma City, Oklahoma. For about 28 years he had been doing analysis work in that field. He conducts a Drivers' Training Service. He also conducts a Safety Service in connection with which he devised a chart which is known as an accident analysis calculator and which he says is used by attorneys and accident investigators all over the country. His third business is known as the Accident Analysis Laboratory, which is a business in which attorneys and accident investigators send him unusual and difficult traffic accident cases for analysis. He describes his methods as follows:
Snyder's opinion that Stevens was driving the car at the time of the accident was based on data furnished to him by appellant. On direct examination of Snyder the record discloses these proceedings:
Later in the trial appellant's counsel moved for a mistrial because of this and other similar "harassments", which counsel contends were comments by the court on the credibility of Snyder. In the interest of time and space we shall not describe in
Moreover, we do not believe that the court's admonitions were calculated to cause and probably did cause an improper judgment. Appellant does not deny that there was evidence that he, appellant Schafer, was driving the car. Appellant does not present a point attacking the jury's verdict finding that he was driving the car. Appellant's ninth point is overruled.
In his tenth point on appeal appellant complains that he was not allowed to examine a statement tendered to the witness Henson by counsel for appellee on cross-examination.
The record reflects these proceedings:
It will be observed after some colloquy appellant's counsel said "Let's see what he asks." This was in effect agreeing to withdraw his objection for the moment, or at least to postpone it until after the question was propounded. But as it turned out no question was ever propounded with reference to the statement. Appellee's next question changed the subject. No objection was made by appellant to any of the succeeding questions. The record does not reflect error. Certainly it does not reflect reversible error under Rule 434, T.R.C.P. Appellant's tenth point is overruled.
In his eleventh point appellant says that the Court permitted counsel for appellee to infer that counsel for appellant was guilty of subornation of perjury.
The record shows that attorney for appellant wrote a letter to Ralph H. Snyder, the Safety Engineer of Oklahoma City, in which letter certain data was furnished to Snyder and appellant's version of the accident was briefly outlined. Snyder's analysis was requested.
An example of the type of questions of which appellant complains is as follows:
Before the witness could answer objection was made by appellant's attorney. The witness did not answer the question.
The situation does not present error. Appellee's counsel was obviously attacking the credibility of the witness, as he had a right to do. We do not think that the question inferred that appellant's counsel was guilty of subornation of perjury. His letter simply presented appellant's version of the accident, as appellant no doubt told it to his attorney, and as he testified, and as other witnesses in part testified during the trial. In addition the letter described the position of the car, the tree, and the positions of the three occupants of the car, etc., following the accident as testified to by several witnesses. The letter did not try to tell Snyder what conclusions he should reach, just as the usual hypothetical question propounded by an attorney does not try to dictate the answer of an expert witness, or convict the questioner of subornation of perjury. Snyder was an experienced witness who by his own testimony was a veteran of many court trials. His cross-examination was at times vigorous, but we do not believe it was subject to the criticism levelled at it by appellant and his counsel. Once more we must hold that any error appearing in this connection, if there was error, was harmless under Rule 434, T.R.C.P. Appellant's eleventh point is overruled.
We pause here to state that appellant's attorneys and the firm of attorneys with whom they are associated enjoy a very good reputation indeed in the legal profession and are highly respected for their integrity and ability.
In his twelfth point appellant alleges error of the court in sustaining appellee's objection to testimony of appellant's witness, Mrs. Plyler, concerning some dogs, then later allowing appellee, over appellant's
During the course of his testimony appellant had stated that the purpose of the trip was to see Stevens' hunting dogs. Mrs. Plyler testified that she arrived on the scene a short time after the accident. After Schafer regained consciousness she talked to him. Counsel asked her this question: "Do you remember * * * whether or not he said anything to you about dogs or anything of that nature?" At this juncture counsel for appellee made objection. The jury was retired and in the absence of the jury the witness testified as follows: "I asked him if he had a wife, and I asked him if he had a family, and he answered, yes, and he led me to believe he had a large family, I mean by large, at least over two children, and he told me something about dogs after that. * * * Which I assumed he had to do with his home, because I was trying to make him talk about his home. * * * Q. Did he tell you he had a wife, and he had a family, and he had a dog, or was that your understanding? A. That was my understanding. I asked the question to the man, if he had a wife, and family, all in one statement, to try to get the man at ease, and I didn't think anything about the dogs."
Thereafter during cross-examination by appellee's counsel the witness was questioned about the dogs. Counsel for appellant objected as follows:
The witness then testified substantially the same as she had in the absence of the jury.
The effect of appellee's counsel in cross-examining the witness about the dogs was to waive his previous objection, which he had a right to do. Of course, this opened the subject for appellant on redirect examination to go into the subject in greater detail if he chose. Counsel did thereafter question the witness on redirect examination, but he chose not to ask any questions about the dogs. Under the circumstances the situation does not present error, certainly not reversible error under Rule 434, T.R.C.P. Appellant's twelfth point is overruled.
Appellant's thirteenth point is that the cumulative effect of all the errors shown in the record taken together requires a reversal of the case, citing Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451.
We do not agree with appellant. We have carefully studied the whole record and all of appellant's points on appeal. We have concluded none of the points considered separately presents reversible error, nor do they do so when considered together.
As we have heretofore stated, our sustaining of appellant's fifth point on appeal is not decisive of the case. The evidence was insufficient to support the jury's verdict that appellant operated the car with heedless and reckless disregard of the rights of others. But Stevens was not a guest within the meaning of Art. 6701b. Consequently appellee had to prove only ordinary negligence. There is no question that the evidence and the jury verdict established ordinary negligence on appellant's part.
The judgment of the trial court is affirmed.
In his motion for rehearing appellant insists that we erred in our original opinion in holding that the failure to join as parties the parents of Thomas H. Stevens was not such fundamental error as to require the reversal of the judgment of the trial court.
Appellant says that the decisions upon which we have relied do not hold that in determining the existence of fundamental error the courts will not look into the statement of facts. What they hold, according to appellant, is that fundamental error will not be found if to do so requires the appellate court to weigh the evidence. Appellant's position here is that since the fact relied upon in this case appears uncontroverted in the statement of facts, the court may look to the statement of facts to determine the existence of fundamental error.
Among the cases cited and quoted by appellant in his brief in support of his contention are East Line & Red River R. R. Co. v. Culberson, 68 Tex. 664, 5 S.W. 820 (1887); Ft. Worth & D. C. R. R. Co. v. Wilson, 85 Tex. 516, 22 S.W. 578 (1893); San Antonio & A. P. R. R. Co. v. Mertink, 101 Tex. 165, 105 S.W. 485 (1907); San Antonio Portland Cement Co. v. Gschwender, 191 S.W. 599 (Tex.Civ.App.1917); St. Louis Southwestern Ry. Co. of Texas v. Anderson, 206 S.W. 696 (Tex.Civ.App. 1918); Galveston-Houston Electric R. R. Co. v. Reinle, 264 S.W. 783 (Tex.Civ.App. 1924); Universal Transport & Distributing Co. v. Cantu, 84 S.W.2d 327 (Tex.Civ. App.1935); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062 (1957); and Webb v. Huffman, 320 S.W.2d 893 (Tex.Civ.App. 1959).
Some of the above cited cases do use the phrase "examine and weigh" the evidence, or similar phrases. The Cantu case, supra, refers to the "undisputed evidence". In the Culberson, Wilson, Mertink, Gschwender and Reinle cases, supra, the matter of non-joinder of parties was brought to the attention of the trial court in the motion for new trial, or otherwise, consequently the question of fundamental error was not in any of the cases.
Webb v. Huffman, supra, apparently supports appellant's contention, though the opinion does not disclose whether complaint was made in the trial court. However, the Amarillo Court of Civil Appeals, in reversing the trial court's judgment, also sustained points of error which had been preserved by proper assignments in the trial court. Writ of Error was refused n. r. e., therefore we cannot know whether our Supreme Court approved the holding as to fundamental error.
Appellee, on the other hand, vigorously contends that we were correct in our original opinion when we held that we may not look into the statement of facts to discover fundamental error. In support of this view we think that authorities may properly be cited as follows: Texas & Pacific Ry. Co. v. Lilly, 118 Tex. 644, 23 S.W.2d 697; White v. Glengarry Oil Co., 137 Tex. 626, 156 S.W.2d 523; Insurors Indemnity & Ins. Co. v. Associated Ind. Corp. et al., 139 Tex. 286, 162 S.W.2d 666; City of Santa Anna v. Leach, 173 S.W.2d 193 (Tex.Civ.App. 1943); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683 (1951); Krottinger v. Marchand, 252 S.W.2d 217 (Tex.Civ.App.1952); ICT Ins. Co. v. Gunn, 294 S.W.2d 435 (Tex.Civ.App.1956); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957); Palmer v. Honea, 324 S.W.2d 929 (Tex.Civ.App. 1959); 29 Tex.Law Rev. 369; 38 Tex.Law Rev. 538, 541.
It has often been held even since the repeal of Art. 1837, V.A.C.S. that we are authorized to consider errors which have been assigned, or which are "apparent upon the face of the record", though Rule 374, T.R.C.P. does not expressly include the quoted phrase. What is the meaning of "Record" as so used? Our Supreme Court has definitely held that the "record" for purposes
"The `record' as here used evidently means, as at common law, those proceedings which lie at the foundation of the court's power to render the judgment, such as the petition, the citation, the verdict, and the judgment proper. It does not include instruments not thus fundamental, such as bills of exceptions, statement of facts, and the like." (Emphasis ours).
Similar holdings are made in other cases. In White v. Glengarry Oil Co. et al., 137 Tex. 626, 156 S.W.2d 523, 524, (opinion adopted by Supreme Court) it is said:
In Insurors Ind. & Ins. Co. v. Associated Ind. Corp. et al., 139 Tex. 286, 162 S.W.2d 666, 670, our Supreme Court said:
In Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 984, Chief Justice Alexander of our Supreme Court, in a concurring opinion said:
Lane v. The Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, 685 was a case in which the Supreme Court refused to consider a statement of facts which had been filed late. However, the court also made this statement:
In Krottinger v. Marchand, 252 S.W.2d 217, 218 (Tex.Civ.App.1952) it is said:
The views expressed by Chief Justice Alexander in his concurring opinion in Ramsey v. Dunlop, supra, are not part of the majority opinion in that case. However in a later Per Curiam opinion our Supreme Court has gone a long way toward embracing the views of the former Chief Justice. We quote from the opinion in McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957):
It is to be noted that even prior to the adoption of the Rules of Civil Procedure in 1941 it was held that we were not to refer to the statement of facts in considering alleged fundamental error. In view of the "much narrower" concept now controlling, we must adhere to our opinion that we may not look into the statement of facts in the instant case to discover fundamental error.
Can we say that the record before us presents a jurisdictional question? Appellant says that it does and points to the strong language used by Justice Gaines in East Line & Red River R. Co. v. Culberson, 68 Tex. 664, 5 S.W. 820. However, in that case the defendant raised the question of nonjoinder in the trial court by a motion in arrest of judgment and in a motion for new trial, so fundamental error was not involved.
We do not agree with appellant. In the later case of Texas & Pac. Ry. Co. v. Lilly, 23 S.W.2d 697, 699 (Opinion adopted by Supreme Court) it is said:
In Missouri Pac. Ry. Co. v. Henry, 75 Tex. 220, 12 S.W. 828, 829 there is this statement:
The view above expressed finds support in an opinion of this Court. In St. Louis Southwestern Ry. Co. of Texas v. Anderson, Tex.Civ.App., 206 S.W. 696, 698, Justice Talbot, speaking for the Court, said:
In the case now before us appellant did not, by plea in abatement, or by any form of objection whatever complain in the trial court of the nonjoinder of the parents of Thomas H. Stevens.
Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165, 68 A.L.R.2d 1062 was a case in which there was no mention in the pleadings or the evidence of the existence or a non-existence of the decedent's father. Justice Calvert, writing the opinion then went on to say:
Here the 101st District Court of Dallas County, Texas, certainly had jurisdiction of the subject matter of this suit. Perhaps, as appellant claims there was a non-joinder of parties. But as we see it the non-joinder of parties, not disclosed on the face of the record, is not a fatal jurisdictional defect as contemplated by our Supreme Court in considering fundamental error.
Lastly, this case is not one of general public interest as contemplated in our Supreme Court holdings in regard to fundamental error. In Ramsey v. Dunlop, supra, an election contest was involved—certainly a matter of public interest. It is true that we are concerned here with the proper application of a statute. Art. 4675, V.A.C.S. In a broad sense all statutes and their proper application are matters of public interest. But we believe that in the limited sense intended by our Supreme Court with reference to fundamental error, this is not a case of "general public interest" as was the Ramsey case, for instance. The case of Texas & Pac. Ry. Co. v. Lilly, supra, also involved the application of a statute, but a claim of fundamental error was overruled.
In his motion for rehearing appellant again complains that special issue No. 2 was not submitted in proper form. Since we did not in our original opinion quote the issue in full we do so now:
We do not agree with appellant. The phrase "at the time and on the occasion of the collision in question" clearly confines the jury to a consideration of the purpose of their being together at the time of the fatal collision.
We have carefully considered all the points raised in appellant's motion for rehearing. We are of the opinion that all of them should be overruled.
The motion for rehearing is overruled.
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