The opinion
On Hearing on Merits
MASSEY, Chief Justice..
Assuming this court does have jurisdiction of the case on appeal, contrary to the opinion of this writer, then the writer is further of the opinion that the appellant has not preserved any error as to jury misconduct, a point on which he predicates his appeal. This follows in my opinion because the evidence was never offered or introduced pursuant to the amended motion for new trial. It was offered under authority of the original motion for new trial which was presented to the trial judge, but it follows from the opinion of my brothers that the original motion was abandoned either when the amended motion was filed with the clerk or when it was presented to the trial judge. If it was abandoned, the abandonment carried with it every act done pursuant to it unless some authority is shown in the record for consideration of some act or procedure under the original motion as having a place in the record of proceedings under the amended motion.
However, all the members of this court concur in the opinion that should we consider the appellant’s point as' to jury misconduct as raised on this appeal, it does not present reversible error. Appellant’s point is that one juror was induced, against his belief as to the fact, to answer that appellant was guilty of contributory negligence, by the statement of ■ another juror that it would not make any difference how that issue was answered because the appellant would get the money awarded in any event.. The testimony introduced on the hearing is rather voluminous. The court made detailed findings of fact, finding that, the evidence as to misconduct was indefinite and contradictory and that if the improper statement was made at all, it was made after all the jurors had agreed that all parties involved in the accident were partially to blame. The court further concluded that it was not established that the answers of the juror would have been different had the alleged statement not been made.
From our perusal of the record on the hearing as to the misconduct, we agree with the trial court that there is evidence to support his findings. The burden is on the appellant to show not only that the misconduct took place, but also to show that it probably resulted in his injury. And where the evidence is conflicting on whether the misconduct occurred, as is apparent from the record, the decision of the trial court should be accepted as final. Texas Employers’ Ins. Ass’n v. Tate, Tex.Civ.App., Fort Worth, 1948, 214 S.W.2d 877 , error refused, n. r. e.; Barrington v. Duncan, 1943, 140 Tex. 510 , 169 S.W.2d 462 .
Another point on the appeal is the contention that the evidence introduced upon the trial of the merits was insufficient to support the finding of contributory negligence. The suit was for damages for injury to appellant’s arm. He testified that at the time of the impact he was sitting next to the right door and was asleep, and when he fell' asleep his elbow was on the sill of an open window. ' There were circumstances indicating that his arm extended outside the window. The injury was caused by the side of the truck striking his arm, the truck’s contact with the car itself being very slight. The jury found *419 that appellant’s act in riding with his arm in the position it was in while asleep was negligence proximately contributing to cause his injury. The existence of negligence is a fact issue unless but one ■ conclusion can be drawn from the evidence; and this was a question that it was the province of the jury to resolve. Lone Star Gas Co. v. Fouche, Tex.Civ.App., Fort Worth, 1945, 190 S.W.2d 501 , error refused, w. m.; Swiff v. Michaelis, Tex.Civ.App., Galveston, 1937, 110 S.W.2d 933 , error dismissed; Coleman v. West, Tex.Civ.App., Beaumont, 1938, 116 S.W.2d 870 ; McCullough Box & Crate Co. v. Liles, Tex.Civ.App., San Antonio, 1942, 162 S.W.2d 1055 , error refused, w. m.; Lackey v. Moffett, Tex.Civ.App., Fort Worth, 1943, 172 S.W.2d 715 ; Oil City Iron Works v. Stephens, Tex.Civ.App., Waco, 1944, 182 S.W.2d 370 .
Another contention is that it was error to admit the testimony of a highway patrolman that about an hour after the accident, at a hospital five miles from the scene, where appellant had been taken for treatment, George Ray, appellant’s father and the driver of the car, in answer to questions about the collision, told him that he had been driving for some time and was tired, and that he misjudged the distance and hit the truck, and that he “just didn’t see it and that was all.” After an ambulance had arrived from Wichita Falls and had left with appellant for a hospital, Has-ley called the highway patrol, and the witness reached the scene about 5:15 P. M., made an investigation, examined and drove the truck, and returned to Wichita Falls, where he talked to George Ray. The time of the accident was testified to by several witnesses as being between 4:00 and 4:30 P. M.
Appellees counter that the testimony was .admissible as res gestae and as an impeachment of the witness, since he had denied that he had misjudged the speed of the truck and had run upon it too fast.
We do not think the res gestae rule is applicable to this state of facts. It was not shown that the statement was the transaction speaking through the witness, but it was the witness describing the transaction. 17 Tex.Jur., p. 622, sec. 261. “Res gestae” evidence is not the witness speaking, but the transaction voicing itself, and the voicing thereof must have occurred under such circumstances as to raise a reasonable presumption that the utterances constituting the voice are spontaneous utterances of fact arising out of the transaction itself. City of Houston v. Quinones, 1944, 142 Tex. 282 , 177 S.W.2d 259 ; 17 Tex.Jur., p. 620, sec. 261. Statements made some time after an occurrence by a witness in answer to specific interrogations as to facts, as in the instance here considered, have been held not to constitute “res ges-tae” evidence. Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Civ.App., Beaumont, 1926, 280 S.W. 882 .
Nor do we think it was admissible to impeach the witness. The two statements are not contradictory. But aside from that, it is the rule in Texas, and in a great majority of the other jurisdictions, that in order to impeach a witness by showing that he had- made a statement contradictory to his testimony, a foundation must first be laid by asking the witness whether he made the statement, giving him an opportunity to admit or deny the statement, to correct his testimony, and to explain the apparent contradiction. 70 C.J., p. 1090, sec. 1280, and cases cited in the note. Had George Ray been a party plaintiff, a different question would have been presented, but he appeared only in the character of a witness, and of course the appellant should not be bound by his statement made out of the appellant’s presence, five or six miles from the scene and an hour after the occurrence.
However, under the provisions of T. R. C. P. 434 the error would not be one which could have occasioned the return of the verdict which was returned or the judgment which was rendered, and therefore would not be reversible error. The appellees were found.guilty of negligence *420 and the appellant’s father was absolved. The appellant was found guilty of the contributory negligence already discussed. Such contributory negligence was wholly independent of the alleged negligence on the part of appellant’s father, to which the contested statements of the father related.
Other points made by the appellant involve the *ction of the court in sustaining objections to questions propounded to ap-pellee' Hasley concerning allegations in his amended answer of negligence on the part of appellant and on the part of George Ray, his father, and concerning the failure of said appellee to allege any negligence as to either of such parties in the original answer. The points also involve the appellant’s claim that the court refused to permit him to complete a bill of exception involving these matters. The collision occurred on July 9, 1951; suit was filed on January 12, 1952; the- original answer was filed on February 2, 1952, and the amended answer was filed on June 10,1953. The original answer contained only special exceptions and a general denial. The amended answer alleged several acts of negligence on the part of George Ray, which were claimed to have caused or proximately contributed to cause the collision, and one ground of contributory negligence on the part of the appellant, to-wit: riding with his arm in the position it was in while asleep.
Appellee Hasley testified on cross-examination that immediately after the accident, when he had an opportunity to investigate the facts, he came to the conclusion that the collision was caused solely by the fault of George Ray and the way he drove his car. It is to be remembered that the jury by its verdict arrived at a different conclusion and absolved Mr. George Ray of negligence solely causing the collision. After the said appellee so testified he was asked by the appellant if in his original answer he alleged that George Ray was in any way responsible for the accident. Objection was sustained to this question. The actual proceedings as taken from the appellant’s Bill of Exceptions and the Statement of Facts were as follows :
“By Mr. Peery:
“Q. All right, let me lay the predicate. Mr. Hasley, when is the first time that you concluded that this accident was caused solely by the fault of George Ray? A. Maybe I misunderstand you, repeat that please ?
"Q. Did you, immediately after this accident, that is, after you had had a chance to investigate the facts did you come to the conclusion that this accident was caused solely by the fault of Mr. George Ray and the way he drove that Studebaker automobile? A. You mean that was my conclusion?
“Q. Yes, sir. A. I couldn’t see it any other way.
“Q. All right and you thought from the very first that Mr. George Ray was negligent and responsible for this collision in whole or in part ? A. I couldn’t blame myself in no way.
“Q. And Mr. Howard Barker the gentleman over here had authority to file an answer for you in this case did he not? A. Yes, sir. I suppose so he is a lawyer.
“Q. All right. Where is the original answer? Now I will ask you if on your behalf he filed an answer in this case on February 21, 1952, signed by Mr. Howard Barker, and I will ask you if anywhere therein if you or your attorney stated that Mr. George Ray was in any way responsible for this accident?
“Mr. Barker: If the Court please there is a general denial in that answer and the Court knows and Mr. Kearby Peery knows the effect of a general denial. The jury doesn’t know it and I doubt if Mr. Hasley knows it. We object to it for that reason.
“Mr. Peer y: I just asked him—
“The Court: I sustain the objection. (Conference)
“Mr. Peery: We would like to make a bill on it right now your Honor.
“The Court: All right gentlemen will you retire to the jury room. (Jury retired)
*421 ‘‘Mr. Wilson: I can show the Court some authorities.
“The Court: I would like to see them.
“By Mr. Peery:
“Q. Mr. Hasley, I believe you testified that Mr. Howard Barker had authority to represent you in filing an answer in this case on the date it was filed which shows to have been February 12, 1952? A. Well, I don’t remember nothing about the dates actually.
“Q. Well if he filed an answer for you he had authority from you to do that didn’t he? A. Yes, sir.
“Q. It was all right with you and he was representing you? A. Yes, sir.
“Q. Now you had discussed with him the facts of this case prior to the time he filed that answer had you not? A. Well I don’t know when he filed the answer I discussed the case with him.
1 “Q. And the answer shows to have been filed on February 2, 1952, according to the record. A. Yes, sir, but I don’t remember the dates.
“Q. And prior to that time you had discussed with Mr. Barker the facts of this case and how the accident happened had you not ?
“Mr. Barker: If the Court please he knows better than that.
“Mr. Wilson: Just a minute, we are making a bill, Judge.
“Mr. Peery: Let him answer the question this is out of the presence of the jury.
“Mr. Barker: I have never seen anything like that in my life.
“The Court: I sustain the objection.
“Mr. Peery: You mean I can’t ask him your Honor if he discussed this case with his lawyers prior to the time that he filed an answer?
“The Court: I sustain the objection, yes.
“Mr: Peery: All right, note our exception because we are laying it as a predicate for the impeachment of the witness in that he has testified this attorney had authority to file the answer for him and it would show either a lack of interest that he didn’t discuss the matter with him and if he had discussed the matter with him it is certainly a predicate for impeachment that he said immediately after the accident and after he had investigated it, that he was of the opinion that Mr. George Ray was the cause of the accident, solely at fault not partially at fault, and yet he filed an answer in which he set up no sole cause on the part of Mr. Ray and no contributory negligence on the part of Mr. Ray.
“Mr. Wilson: And for the further reason that it is a restriction of a right of counsel to take a bill of exception and show the answers of the witness to the questions as propounded by counsel and is therefore preventing the Plaintiff from proving his bill of exceptions and securing the answers to the questions asked on the bill of exceptions and is therefore a restriction to the right of counsel to prove his bill of exception.
“Mr. Peery: That’s all. Just a minute, we offer in evidence to complete the bill all of the original answer in this cause including the signature, and that is your signature isn’t it Mr. Barker?
“Mr. Barker: Yes.
“Mr. Peery: All right and in the alternative we offer in evidence all of the answer except the general denial.
“Mr. Barker: And we offer that.
“Mr. Wilson: Let the record further show that we tender the questions and whatever answer the witness would give if the Court would permit the witness to answer the question.
“Mr. Barker: At this time Judge I would like to request that you instruct the jury to disregard the question that was just asked Mr. Hasley because it involves a matter of law for the Court.
*422 “The Court: Let’s see, the question' was ‘Did you in your answer set up contributory negligence’ or words to that effect wasn’t it?
“Mr. Barker: I forget, what the question was. .
“The Court: Was- that your question Mr. Peery?
“Mr. Peery: I asked him if prior to the time this attorney filed this answer — Oh, I didn’t ask him that no, I asked him in substance as to when he first came to the opinion and conclusion that this accident was caused solely—
“The Court: That was answered.' (Record read)
“Mr. Peery: Well, for the purpose of the bill let me have the record show this in addition, your Honor, that we intend to show by the bill that Mr. Howard Barker at all times had authority as an attorney to represent Mr. Hasley, and that he did not until the date of the amended answer, to-wit, on the 10th day of June, 1953, set up any allegations of any nature whatever, that Mr. George Ray was solely responsible for this accident or that this boy was — or Mr. George Ray was partially responsible for this accident or that this boy was guilty of contributory negligence and I would like to ask him one more question with reference to the predicate while the jury is out.
“The Court: All right.
“By Mr. Peery:
“Q. Mr. Hasley, when was the first time that you came to the conclusion that Mr. David Ray here, the Plaintiff in this case was guilty of negligence in riding with his arm on the window of the automobile or sticking out the window of the automobile ?
“Mr. Barker: That calls for a conclusion based upon investigation, he didn’t even know that the man—
“Mr. Wilson: Judge are we permitted to ask the question for the purpose of the bill of exception?
“Mr. Barker: He didn’t even know at the time that the man had his arm put the window.
“The Court: You can qualify it that way. I will let them go into it but I think it is a question of law.
“By Mr. Peery :
“Q. Maybe I can put it this way Mr. Hasley are you of the opinion at this time that Mr. David Ray was guilty of negligence proximately causing his injuries in riding with his arm on the window or slightly protruding outside of that window of that automobile?
"Mr. Barker: Same objection, it is a question of law, he has got proximate cause in there and everything else and it hasn’t been defined for him.
"Mr. Peery: He plead it your Honor.
“By Mr. Peery i
“Q. Are you of the opinion at this time that Mr. David Ray was guilty of negligence which proximately caused his- injuries or which resulted in his injuries Mr. Hasley ?
“Mr. Barker: I make the same objection.
"Mr. Peery: Can you answer that question? A. I don’t know exactly what you mean.
“By Mr. Peery:
“Q. Do you think Mr. David Ray exercised ordinary care?
“Mr. Barker: If the Court please he is not qualified to answer that.
“The Court: I sustain the object ion.
“Mr. Peery: All right, note our exception for the reason that it is probably a matter for a bill of exception and we offer the testimony and we intend to show if the bills are allowed that, we — ask the witness when was the first time that he concluded that Mr. David Ray was guilty of contributory negligence in this case and if at this time he is guilty of contributory negligence in this case.
*423 “Mr. Barker: I object to him talking so loud, judge, the jury can hear him.
“The Court: I sustain the objection.
“Mr. Peery: Because the Defendant Ha-sley is bound by the allegations of his pleadings and we have the right to show that in truth and in fact he does not believe in such pleadings and that this is merely something that was formulated by his lawyers in the case which is contrary to his own personal beliefs in the matter.
“Mr. Barker: Let the record further show for the purpose of the hill that the case was investigated on behalf of Mr. Hasley and Mr. Gage by the insurance carrier.
“The Court: Anything else?
“Mr. Peery: I believe that's all Judge. To which ruling of the Court the Plaintiff in open court excepts with reference to all matters offered.
“Mr. Wilson: And the prospective answers to the questions which the Court would not permit the witness to answer.”
It is immaterial whether the appel-lee’s pleadings, original or amended, ever claimed that appellant’s father was responsible for the collision. He was absolved of negligence by the jury in so far as we view the situation here posed. The testimony sought to be elicited from the witness before the jury was retired, and because of the refusal to appellant of the right to elicit which he desired to take his bill of exceptions, was clearly upon the restriction of inquiry into the appellee Hasley’s reasons for not sooner charging Mr. George Ray "with responsibility. Appellant’s points have no materiality upon this matter for Mr. George Ray was not found to have been responsible. The appellant was found to have been partly responsible through the contributory negligence found against him by the jury. If the line of inquiry the appellant desired to follow with the witness Has-ley had any materiality, it would have materiality only upon an inquiry as to why the appellee had not sooner charged the appellant- with contributory negligence in the pleadings.
From a careful examination of the questions asked the witness pursuant to the bill of exceptions, we cannot see where the trial court ever prohibited the appellant from asking any proper question of appellee Hasley as to why he had not sooner charged the appellant with contributory negligence, even assuming such a question constituted proper inquiry. The appellant might be said to have covered the matter had the charge against appellant’s father been material, but every question which could have a bearing upon why appellant had not been sooner charged with negligence the question actually asked called for an opinion or conclusion on the part of the witness, past or present, as to appellant’s negligence, or as to the witness’ state of mind at some particular time. Actually, in so far as the purpose for which the jury was excluded, being to take a bill of exceptions to the refusal of the court to allow inquiry into the matter of why the appellee had not sooner charged George Ray with negligence, inquiries of the witness as to why he had not sooner charged the appellant with negligence would not reasonably appear to bear upon matters proper to he developed in the bill. But even should such questions be considered to bear upon the bill, yet they were improperly put and did not pointedly inquire into what might be considered the material •question of the appellee’s reason for delay in pleading his affirmative defense against the appellant.
Indeed, it reasonably appears that at one point the trial judge pointed out to the appellant’s attorneys that they might qualify their question about the witness’ conclusions as to appellant’s negligence by going into the matter of when the witness first knew that the appellant had his arm out the window of the automobile, but the attorneys either did not understand or did not wish to take advantage of the suggestion. Nowhere does it appear that the appellant wa§, restricted in the examination of the witness before the jury upon the point he deems material, but it only appears that the objec- *424 tibns were sustained to the propriety of the questions appellant’s counsel chose to ask during the procedure pursuant to the bill. The trial court never ruled that the appellant could not interrogate the witness before the jury upon his reasons, if any, why he had not sooner alleged appellant’s contributory negligence. The rulings the. trial court did make were neither arbitrary nor unreasonable, and hence should not be disturbed. 44 Tex.Jur., p. 1146, sec. 148.
Furthermore, it is believed that this case was not one where the omissions of allegations in the abandoned pleadings which were later included could have any materiality. We believe that unless it be made to appear that the facts later pleaded were of such a nature or the circumstances were such that one situated as the appellees were in this case would in the natural order of things have mentioned the facts in pleadings filed at an earlier time, if within their knowledge, and that their failure to do so bears ■ sufficiently upon the question of the veracity of such parties when testifying as to entitle the fact of delay in pleading to be admitted into evidence as contradictory or inconsistent with the defensive theories (material to our consideration on appeal) upon which the appellees went to trial, no reversible error results from their exclusion. 45 Tex.Jur., p. 36, sec. 199; Gulf, C. & S. F. R. Co. v. Matthews, 1906, 100 Tex. 63 , 93 S.W. 1068 . See also McCormick & Ray, Texas Law of Evidence, p. 434, sec. 346; 8 Tex.Jur. Ten Year Supp., p. 296, sec. 219; Texas City Transp. Co. v. Winters, Tex.Civ.App., Galveston, 1917, 193 S.W. 366 , reversed on other grounds in Tex.Com.App., 222 S.W. 541 .
The judgment is affirmed.
BOYD, J., dissents.