Englebrecht v. W. D. Brannan & Sons, Inc.

ON MOTION FOR REHEARING

REYNOLDS, Justice.

In his motion for rehearing, appellant Englebrecht challenges the holding that the custom he relied on as an absolute defense was not established as a matter of law. The holding was responsive to, and should have been more explicit in answering, En-glebrecht’s first three points of error contention that appellee W. D. Brannan & Sons, Inc., introduced binding evidence legally proving the existence in Sherman County of the custom that the aerial applicator was not entitled to payment if the aerial application did not kill the weeds. The evidence designated in the motion for rehearing as legally binding on appellee is that testimony of Wayne Lynch, given in response to interrogatories propounded by Englebrecht’s attorney but introduced at the trial by appellee, reading:

“Q. Do you know whether there was a fixed custom in Sherman County, Texas in 1971, in the aerial crop spraying business, concerning the payment by the landowner to the aerial crop sprayer for his services, in event the weeds were not killed, or controllably killed by the application of such chemicals ?
“A. Yes.
“Q. If you have answered the last interrogatory in the affirmative, please state in your own words what was the custom in Sherman County, Texas, in 1971 concerning the payment by the landowner to the aerial crop sprayer, in the event the application of the chemicals did not kill the weeds. (Please answer in full.)
“A. The custom to my knowledge is that if you don’t get a kill you don’t get paid.”

Also, there is designated the following testimony of the same witness given to the cross-interrogatories of, and introduced by, appellee:

“Q. When you and B & B Flying Service were engaged in the aerial crop spraying business in the summer of 1971, did you have a policy which provided that in the event the weeds were not killed, or controllably killed by the application of chemicals, that the landowner was not responsible to you or B & B Spraying Service for the payment of the bill for applying said chemicals ?
“A. That is correct.”

Appellant asserts, and cites cases stating, the proposition that since appellee introduced the quoted testimony, he is bound by it because he vouched for the credibility of the witness Lynch by introducing his testimony and cannot impeach him. From this propositional basis, Englebrecht argues that the custom was established as a matter of law. We disagree.

While the general rule is that, absent certain circumstantial exceptions not material here, a party may not impeach his own witness, the rule does not prohibit the production of, and the party is privileged to present, other witnesses to show either a different fact or the truth of a particular fact in contradiction of the factual testimony of the party’s own witness. 1 McCormick & Ray, Texas Evidence §§ 631-636; Bell v. Currie, 404 S.W.2d 321 (Tex. Civ.App.—Amarillo 1966, no writ) ; Shinn v. Dillon, 306 S.W.2d 940 (Tex.Civ.App.—Fort Worth 1957, no writ); Texas Employers’ Insurance Association v. Cecil, 285 S.W.2d 462 (Tex.Civ.App.—Eastland 1956, writ ref’d n. r. e.). Rather than being an attack on the credibility of the witness, the function of contradictory testimony is to show that the witness is in error on the particular point. 1 McCormick & Ray, Texas Evidence § 636.

*712Thus, appellee was not at liberty to introduce evidence attacking the credibility of its witness Lynch; however, appellee was privileged to introduce testimony which would serve to contradict Lynch’s testimony of custom. In introducing the testimony of Hershel Francis to the effect that the custom did not exist in Sherman County, appellee produced testimony contradicting the testimony, but not attacking or impeaching the credibility, of its witness Lynch. It was this, together with the other, contradictory testimony bearing on custom that produced the conclusion that the defense of custom was not established as a matter of law but was an unresolved fact issue.

The remaining points of error contained in the motion for rehearing have been carefully considered. We have concluded that a correct and adequate disposition of each point was made in the original opinion.

Accordingly, the motion for rehearing is overruled.