In addition to the authorities there cited, I would add: "The trial court has great discretion upon questions of joinder of parties and causes of action, and of consolidation or separation of causes, more especially under Rules 37 to 43, 97, and 174. Wilson v. Ammann Jordan, Tex.Civ.App. 1942, 163 S.W.2d 660, error dismissed; Simmons v. Wilson, Tex.Civ.App. 1949, 216 S.W.2d 847; Waller Peanut Co. v. Lee County Peanut Co., Tex.Civ.App. 1949, 217 S.W.2d 183; Gowan v. Reimers, Tex.Civ.App. 1949, 220 S.W.2d 331, ref. n. r. e.; McGee v. McGee, Tex.Civ.App. 1951, 237 S.W.2d 778, ref. n. r. e.; Utilities Natural Gas Corp. v. Hill, Tex.Civ.App. 1951, 239 S.W.2d 431, ref. n. r. e.; Associated Growers v. Smith, Tex.Civ.App. 1952, 244 S.W.2d 348; Barbee v. Buckner, Tex.Civ.App. 1954, 265 S.W.2d 869, ref. n. r. e. * * *' Footnote 10, Rule 174, Vernon's Annotated Texas Rules of Civil Procedure. Now let us examine the situation of the case before the court at the time he made his rulings which are sought to be over-thrown by mandamus.
When the issues so presented are disputed, they are questions for the jury. See Utilities Natural Gas Corp. v. Hill, 239 S.W.2d 431, 436 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.) (whether oral agreement to pay commission on sale contract negotiated by plaintiff existed is question for jury); Ingram v. Gentry, 205 S.W.2d 673, 675 (Tex.Civ.App. — Waco 1947, no writ). In Ingram, a contractor alleged an oral contract in which he was to receive both an hourly wage as a laborer, which was undisputed, and a ten percent commission on the total payroll.
Phipps v. Miller, 597 S.W.2d 458, 460 (Tex.Civ.App. — Dallas 1980, writ ref'd n.r.e.). Whether a separate trial is tried to the same jury, a different jury or the trial court does not affect its status. See Humphrey v. Humphrey, 593 S.W.2d 824 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ dism'd); W.H. Simpson v. Phillips Pipe Line Co., 603 S.W.2d 307 (Tex.Civ.App. — Beaumont 1980, writ ref'd n.r.e.); Credit Plan Corp. of Houston v. Gentry, 516 S.W.2d 471 (Tex.Civ.App. — Houston [14th Dist.] 1974), rev'd on other grounds, 528 S.W.2d 571 (Tex. 1975); Walker v. Showalter, 503 S.W.2d 624 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ); Utilities Natural Gas Corp. v. Hill, 239 S.W.2d 431 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.). Trying a separate trial to the same jury streamlines what is essentially a different trial.
The cases delineate three controlling reasons for the grant of a severance including (1) the doing of justice; (2) the avoiding of prejudice; and (3) the furtherance of convenience. Utilities National Gas Corp. v. Hill, 239 S.W.2d 431, 434 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.); Id. at 289.
We hold that the evidence was admissible to show the inclusion of an insurance term for compressor Unit 131 for the reasons that follow. In Utilities Natural Gas Corporation v. Hill, 239 S.W.2d 431, 435 (Tex.Civ.App. 1951, writ ref'd n.r.e.) it was held error to exclude evidence of prior dealings between the same parties, dealing with the same subject matter involved in the original contract. The court quoted McCormick and Ray, Law of Evidence, §§ 696 at 904 for the rule that:
The controlling reasons for a severance are (1) the doing of justice, (2) the avoiding of prejudice, (3) the furtherance of convenience. Utilities Natural Gas Corp. v. Hill, 239 S.W.2d 431, 434 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.). The decision as to the severance of claims is ordinarily left to the discretion of the trial court.
In the light of this record we certainly cannot say that there is no evidence to sustain the submission of Special Issue No. 1 to the jury. While it is true that the evidence is conflicting yet a jury issue was clearly defined and submitted. Utilities Natural Gas Corporation v. Hill, Tex.Civ.App., 239 S.W.2d 431. We have also carefully considered the testimony, both for appellant and for appellee, and we cannot say that the testimony is so contrary to the great weight and preponderance of the testimony as to result in a manifestly unjust verdict.
In any event, if appellant desired to recover on the theory of a dangerous obstruction or nuisance in the street, he should have requested that the issue of nuisance or dangerous obstruction be submitted to the jury, as it was not conclusively established by the evidence, and his failure to request such an issue was a waiver of this independent ground of recovery. Rule 279, T.R.C.P.; Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Parsons v. Texas City, Tex.Civ.App., 259 S.W.2d 333; Harris v. Harris, Tex.Civ.App., 174 S.W.2d 996; Utilities Natural Gas Corp. v. Hill, Tex.Civ.App., 239 S.W.2d 431; Johnson v. Miller, 142 Tex. 228, 177 S.W.2d 249. The evidence does not conclusively establish that the rope stretched across Taylor Street was a nuisance or dangerous obstruction.