author: DIXON, Chief Justice.

text:
    J. Alex BLAKELEY, Appellant, v. Ben HOWARD, d/b/a Ben Howard Plumbing Company, Appellee.
    No. 16434.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 19, 1965.

      Jay S. Fichtner, Gayle E. Oler, Dallas, for appellant.
    Ely Straus and Robert A. Neathery, Dallas, for applleee.
   DIXON, Chief Justice.

Appellee Ben Howard, doing business as Ben Howard Plumbing Company, recovered judgment against appellant J. Alex Blakeley for $3,204.25 in a suit for labor and materials furnished in performing plumbing work on Coralita Courts, a motel owned by appellant.

Appellee’s original petition alleged a cause of action based on a verified account. However, in pleadings filed later appellee pled quantum meruit and his cause of action was tried on that theory.

Appellant filed an answer and cross-action which we shall discuss in greater detail later in this opinion. It is undisputed that appellant has paid $2,000 on account.

A jury returned a verdict finding that (1) appellee furnished appellant labor and materials of (2) a reasonable cash market value of $5,310.34, (3) of which sum a balance of $3,204.25 remained unpaid; (4) a reasonable attorney’s fee was $1,250; (5) appellee did not agree with appellant that for materials furnished appellee would receive cost plus 10 per cent, and (6) did not agree to finish the job by October 7, 1961.

Appellant’s first, second and fourth points on appeal charge that the court committed error in overruling appellant’s motion for discovery. We agree with appellant.

In his answer and cross-action in addition to a number of defensive pleas appellant affirmatively pled that he had entered into an oral contract with appellee, the terms of which were as follows: (1) ap-pellee would charge for labor furnished the usual and customary charges prevailing in Dallas County at the time; (2) ap-pellee would charge for materials furnished the actual cost of said materials plus 10 per cent, except as to panel-ray heaters, which were to be furnished at cost; (3) appellee would allow appellant to check ap-pellee’s books and records to verify the charges made; and (4) would complete the job by October 7, 1961, the opening date of the State Fair of Texas, so that appellant could obtain the benefit of the influx of visitors into Dallas at that time.

In his cross-action appellant alleged that because of appellee’s failure to finish the job by October 7, 1961, as he had agreed to do, appellant in the operation of his motel was not able to obtain any benefit from the influx of visitors to the State Fair to his damage in the sum of $2,500.

Appellant’s testimony supported his pleadings as to the alleged oral contract and its terms. Appellee’s testimony contradicted that of appellant as to the terms of the contract except that appellee admitted that he had agreed to furnish the panel-ray heaters at cost.

It is obvious that in order to support his answer and cross-action with evidence appellant had to know the costs of materials and the details of the charges made for labor. The invoices, books, payrolls and other records showing the needed information' were in the exclusive possession and control of appellee. Appellant repeatedly but unsuccessfully sought to have these records produced for his inspection.

On October 29, 1962 appellant filed a motion for the appointment of an auditor. The motion was overruled.

On March 6, 1963 appellant made a motion pursuant to Rule 167, Texas Rules of Civil Procedure, for discovery and' production of (a) invoices pertaining to materials and equipment furnished together with cancelled checks showing payment; (b) payroll records relating to labor performed; (c) quarterly payroll reports pertaining to the men employed as laborers on appellee’s job at Coralita Courts,; (d) records of the labor rate charged; and (e) records pertaining to labor of appellee’s employers at other jobs engaged in by appel-lee during the time he was working on the Coralita Courts. The trial court overruled appellant’s motion for discovery.

On October 14, 1963 appellant pursuant to Rule 168, T.R.C.P., propounded interrogatories to appellee in an effort to ascertain the names and numbers of employees,' labor performed, wage rate, etc., in connection with appellee’s job on Coralita, Courts. , Appellee answered some pf, these interrogatories, but as to hourly, weekly, or monthly wage rates, and the total amount, paid to employees on the job appellee refused to answer on the ground that. Jhe information requested was immaterial. Ap-pellee did not answer interrogatories as to other jobs on which appellee worked during the period involved or the names of employees who worked on said jobs and gave no reason for his refusal to answer.

At a pre-trial hearing the court refused to require appellee to answer the interrogatories he had declined to answer and during the trial on the merits refused to allow appellant to read to the jury the responses of-appellee wherein he declined to answer some interrogatories on the grounds of immateriality and refused to answer other interrogatories without explanation.

The trial on the merits began October 28, 1963. The jury returned its verdict October 31/1963. During the examination of appellee' as 'a witness he was asked to pro-ducé invoices, payrolls ' and other records he admitted were in his possession. Ap-pellee declined to produce the records.

Later after appellant had testified as to the terms of the alleged oral contract, ap-pellee- was recalled as a witness and was again asked to produce the invoices and records as to certain labor and materials costs.- Appellee produced a few records. However, as to others stated that he was sure he had the records some place but would* :have to look in his files for them. The court, over appellant’s protest, refused to allow the witness to take the time necessary to look for the records.

As the foregoing recital shows, appellant was diligent in his efforts to obtain the evidence necessary to enable him to present his defense. .Rule 167, which appellant sought unsuccessfully to invoke, expressly provides that designated books, accounts, letters, photographs, objects or tangible things not privileged, which constitute dr ■ contain evidence material to any matter involved in an action and which aré in the. possession, custody or control of a party, may be required to be produced for inspection,, copying and photographing by the opposing party. The source of our State rule is Federal Civil Rule No. 34. In our opinion the rule is applicable here, and the court abused its discretion in overruling appellant’s motion for discovery. Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Wilson v. David, D.C., 21 F.R.D. 217; Samuel Goldwyn, Inc. v. United Artists Corp., D.C., 35 F.Supp. 633. Even prior to the enactment of Rule 167, T.R.C.P. and Rule 34, F.R.Civ.P., our statute, Art. 2002, Vernon’s Ann.Civ.St., provided for discovery. White v. National Paving Co., Tex.Civ.App., 101 S.W.2d 588; Beaman v. Sanger Bros., Tex.Civ.App., 32 S.W.2d 872. Appellant’s first, second and fourth points are sustained.

In his third and fifth points appellant complains of the court’s refusal to require appellee to answer certain written interrogatories and to require appellee to answer certain questions propounded to him while he was witness during the trial. Neither of these points is mentioned iii appellant’s amended motion for new trial, so they cannot be considered here.

In his sixth and seventh points appellant charges error because of the court’s refusal to submit requested issues inquiring (6) whether appellant and appellee agreed that for the labor performed appellee would receive the usual and customary charges for such labor in Dallas County, Texas; and (7) whether appellant and appellee agreed that appellant could verify the charges made by appellee for materials and labor.

The two requested issues inquired about elements of the alleged contract, as pled and testified to by 'áppellant. The issues were not submitted. They should have been submitted. All the ultimate fact issues pled by each party, if supported by evidence, should be submitted. Rule 277, T.R.C.P. T & P Ry. Co. v. Davis, Tex.Civ.App., 374 S.W.2d 305; Cabell’s, Inc. v. Peurifoy, Tex.Civ.App., 287 S.W.2d 283; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. Appellant’s sixth and seventh points are sustained.

In his eighth and ninth points appellant says it was error for the court to submit Issue No. 2 which inquired as to the “reasonable cash market value” of the labor and materials furnished by appellee because there were no pleadings and no evidence as to the “reasonable cash market value” of the labor and materials.

We agree with appellant that it was error to submit the issue as worded. We so hold for these reasons: (a) we have searched the record and find no pleadings or evidence of the “reasonable cash market value” of either the labor or the materials. Appellee pled and testified that the charges made were reasonable and the labor and materials furnished were necessary.. (b) Appellee admitted that the panel-ray heaters were to be furnished at cost, yet the issue as submitted included all labor and materials. Appellant’s eighth and ninth points are sustained.

Appellant’s tenth point claims that ■fhere was “insufficient” evidence to support submission of Special Issue No. 2. An attack on the submission of an issue calls for the “no evidence” rule, not what is commonly called the “insufficient evidence” rule. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. However, in his article, “ ‘No Evidence’ and ‘Insufficient Evidence’ ”, 38 Texas Law Review 361, April 1960, Chief Justice Calvert says that the mere wording of the point on appeal is not controlling, but the point will "be interpreted to give it the application appropriate to a particular procedural step in the trial. Therefore we interpret appellant’s tenth point as an effort to invoke the “no evidence” rule. As such it duplicates appellant’s ninth point which we sustained. We therefore sustain appellant’s tenth point.

In his eleventh, twelfth, and thirteenth points appellant asserts error in the submission of Special Issue No. 3 as follows:

“What amount, if any, do you find from a preponderance of the evidence, is the balance, if any, now owed by the Defendant (Blakeley) for the labor and materials, if any, furnished, if any, by the Plaintiff (Howard) to Defendant (Blakeley) as inquired about in Special Issue No. 1 ?”

Appellant attacks the above issue on the grounds that it is a global submission, submits issues of law, and is multifarious. We agree with appellant.

The whole and only purpose of the suit from appellee’s viewpoint was to obtain an adjudication as to the balance which he claimed was owed to him by appellant. The issue as worded does not submit the various ultimate issues of fact separately as required by Rule 277, T.R.C.P. It includes all ultimate issues of fact and of law in one monumental all-inclusive global issue which concludes the whole lawsuit. Towne Industrial Equipment Co. v. Marmosaic, Inc., Tex.Civ.App., 358 S.W.2d 755; Schoenberg v. Forrest, Tex.Civ.App., 228 S.W.2d 556; Southland Life Ins. Co. v. Ballew, Tex.Civ.App., 268 S.W. 1027. The eleventh, twelfth and thirteenth points are sustained.

Appellant’s fourteenth point alleges error in the submission of Special Issue No. 4 which inquired what amount of money would be a reasonable attorney’s fee. Appellant contends that there is no evidence that appellee presented his claim thirty days before suit was filed as required by Art. 2226, V.A.C.S.

The fourteenth point is without merit. Appellant himself in his sworn answer says that “Upon completion of said work” ap-pellee furnished him with a statement asset out in Exhibit “A” attached to appel-lee’s petition. The work was completed November 10, 1961. Suit was filed February 9, 1962. Appellant’s fourteenth point is overruled.

In his fifteenth, sixteenth and seventeenth points appellant says that the court erred in overruling his motion to disregard the jury’s answers to Special Issues Nos. 2, 3 and 4 and in failing thereafter to render judgment for appellant. In passing on appellant’s eighth, ninth, tenth, eleventh, twelfth, and thirteenth points we held that there was error in the submission of Issues Nos. 2 and 3. Therefore, they do> not furnish a proper basis for the judgment rendered by the court. However, in the state of the record there was no basis for rendering judgment for appellant even if the court were to disregard the jury’s answers to the two issues.

\

Appellant contends that the jury’s answers to Special Issue No. 7 are without support in the evidence. The pleadings of appellee and the testimony of two attorneys supported the jury’s finding of $1,250 as a reasonable attorney’s fee.

Appellant’s fifteeth, sixteenth and seventeenth points are overruled.

The judgment of the trial court is reversed and the cause remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    W. A. BROWN, d/b/a Brown Trucking Company, Appellant, v. Joe F. POFF, Appellee.
    No. 5670.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 27, 1965.
    Rehearing Denied Feb. 24, 1965.

      Brown, Day & Craig, Fort Worth, H. O. Metcalfe, Marfa, for appellant.
    Warren Burnett and Robert D. Pue, Odessa, for appellee.
   CLAYTON, Justice.

Suit for personal injuries growing out of a truck-car collision, filed by plaintiff-appellee against defendant-appellant. In answer to special issues the jury found in favor of plaintiff in the amount of $115,000.00. From a judgment on this verdict, appellant perfects this appeal.

Appellant’s first point on appeal maintains that the trial court erred in overruling appellant’s motion to discharge the jury panel because of an allegedly improper and prejudicial injection of liability insurance before the panel by appellee’s counsel. Our attention is called to the following questions directed to two of the members of the jury panel on voir dire examination of the panel, and the answers given to such questions:

“Q Mr. Milam, what is your occupation?
“A (BY PANEL MEMBER JACK MILAM:) Insurance business.
“Q You write general casualty insurance ?
“A Yes, sir.
“Q Could you make a fair juror in this case?
"A I seriously doubt it.
“Q Inasmuch as you know both sides are entitled to a fair trial, do you doubt your ability to be fair in this kind of case?
“A No, sir; I could be fair. Of course, I am in the insurance business now.
“Q You say you seriously doubt it.
“A I know Joe Poff, and John Mene-fee, I have had — he has been my lawyer. I know Poff in the insurance business. To be frank, he is my customer and the other fellow is my lawyer.
“Q You are the only one that knows.
“A I doubt it.
“Q You doubt that you could be fair in this kind of case?
“A Yes, sir.
“Q In view of the fact that he has been very candid with us, I think we can excuse him since we have more than 24.
“THE COURT: If you have a serious doubt, we will excuse you, Mr. Milam.
“A Thank you. (Thereupon, Mr. Milam was excused.)
“Q Mrs. Workman.
“A (BY PANEL MEMBER MRS. WORKMAN:) I am a housewife and an inactive partner in an insurance agency.
"Q Would that fact influence you in such a case as this, your connection with an insurance agency?
“A I don’t feel it would. I haven’t been active in the agency for almost ten years.
“Q You could give both sides a fair trial?
“A I feel I can.”

Appellant’s complaint is that-the foregoing exchange between appellee’s counsel and the two jurors could not fail but impress the members of the panel that liability insurance was directly involved in the case. In support of this position appellant cited authorities to show that such would be reversible error. We believe these authorities to be distinguishable from the case at hand. In the case of Herrin Transp. Co. v. Peterson, 216 S.W.2d 245 (Tex.Civ.App., 1948; ref.), the court stated, at page 248:

“From an exhaustive analysis of the authorities involving the question above presented, we are of the opinion tha.t only where counsel has deliberately done something to bring insurance into the picture or where the inference is plain and unmistaken that the defendant is protected by liability insurance that a reversal will be ordered.” '

In the instant case we find no objectionable motive in the questions propounded to the jurors. As late as 1964 a Court of Civil Appeals, in the case of Tripp v. Bloodworth, 374 S.W.2d 713, at page 717, said:

“ * * * Under these circumstances, we believe that the trial court could properly find, and we must assume that the court did -find, that the^ injection of insurance into the case was inadvertent and not intentionally-designed to inform the jury that the appellant, the defendant in this case, had indemnity insurance. There was no showing that the jury discussed insurance and in our opinion the record does not show that an improper judgment probably resulted.
“Every mention of insurance in a damage suit does not constitute reversible error. On the contrary, the complaining party has the burden of showing that the injection of insurance into the case probably caused rendition of an improper judgment. Rules 434, 503, T.R.C.P. Dennis v. Hulse, (Sup.Ct.), 362 S.W.2d 308; Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Herrin Transportation Company v. Peterson, Tex.Civ.App., 216 S.W.2d 245, (Writ Ref.).”

In the case before us the appellant does not claim in this point of error, and we do not find, that an improper judgment probably resulted from the above-quoted exchange between counsel and members of the jury panel. Point of Error No. One is overruled.

By Points Two and Three appellant objects to questions of appellee’s counsel to the jury panel on voir dire, in which appellant claims a pledge or agreement from the panel to return a verdict for $115,000.00 was sought; and that in argument to the jury appellee’s counsel again stressed the amount of $115,000.00 and indicated that the panel had committed itself to that amount. The gist of the question propounded to the panel was: “If under all the evidence when it is in, the greater weight and greater degree of believable evidence shows he is entitled to the $115,000.00,” (for which amount suit was brought) “is there any reason why anyone of you could not and would not be able to write such a verdict?” In final argument appellee’s counsel told the jury:

“Now, if we are right, the figure for which we have sued is fair, it is just, and it is reasonable. You members of the jury told me if after all the evidence was in and a preponderance of the evidence justified it, there was no reason why you neither would not or could not be able to write a verdict for $115,000.00, and I took you at your word.”
“ * * * I believed you then yesterday as I believe you now, and my client has a right to believe you now as he believed you then.”

At other points in his argument appellee’s counsel stressed the $115,000.00 figure.

We have examined the cases cited by appellant in support of these contentions and here again find them to be distinguishable from the present case. Questions and argument of somewhat similar import were held not to be reversible error in Trinity & B. V. Ry. Co. v. Dodd, 167 S.W. 238 (Tex.Civ.App., 1914; ref.), and Dodd v. Burkett, 160 S.W.2d 1016 (Tex.Civ.App., 1942; ref. w. m.). See also Texas and New Orleans Railroad Company v. Flowers, 336 S.W.2d 907 (Tex.Civ.App., 1960, n. w. h.). Points Two and Three are overruled.

In appellant’s fourth point complaint is made that the trial court failed to submit to the jury the ultimate disputed fact issue of whether or not the appellee had sustained any injury on the occasion in question, and had overruled appellant’s objections to the submission of Special Issue No. 5. Special Issue No. 5, as submitted to the jury, reads as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff, Joe F. Poff, for the damages, if any, sustained by him as aft direct and proximate result of the negligence, if any, of the defendant’s truck driver on the occasion in question?
"Answer in dollars and cents or ‘none’ as you may find from a preponderance of the evidence.”
The jury answered “$115,000.00”.

The issue was accompanied by an instruction on the elements of damages.

Among other objections to this issue, appellant made the following objection:

“Defendant objects and excepts to the submission of Special Issue Number 5 because such issue assumes that the plaintiff did actually sustain some personal injury on the occasion in question, this being a disputed fact issue by pleading and by testimony before the court; and it would be highly improper to submit such Special Issue Number 5, except conditioned upon the jury having found that the plaintiff did sustain some personal injury on the occasion in question.”

In Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, the Supreme Court had before it under similar circumstances the following charge:

“ ‘Special Issue No. 5
“ ‘What sum of money, if paid now in cash do you find from a preponderance of the evidence, would fairly and reasonably compensate the Plaintiff, R. A. Van Zandt, for the injuries, if any, received by him proximately resulting from the collision in question?
“‘Answer in dollars and cents or “none”, as the case may be.
“ ‘Answer: $27,000.00.’ ”

In that case the defendant-petitioner prepared and requested the submission of a special issue inquiring whether respondent had suffered the injuries alleged by him and objected to the charge of the court because of failure to submit the issue. The court held:

“The burden was on respondent to prove that he had been injured. That question was therefore put in issue by petitioner’s general denial. We are satisfied that it was also put in issue by petitioner’s evidence, which need not be detailed. Inasmuch as no separate issue on the fact of injury was submitted, the judgment in respondent’s favor may not stand unless the question was fairly and adequately submitted in Special Issue No. 5, quoted above.
“Special Issue No. 5 is the conventional type of damages issue. Its purpose is not to establish liability. Its purpose is to fix the amount of money damages which will fairly compensate an injured party for his injuries and thus discharge the legal liability of a defendant. Whether there is any legal liability on the part of a defendant to pay the money damages must be determined, when the evidence is conflicting, through the submission of separate issues.
“In a large percentage of personal injury cases — perhaps in a majority— there is no question but that injuries were sustained. In such cases, the conventional issue on damages and accompanying instruction permits the jury in arriving at the amount of damages to be awarded to make an incidental determination of the nature and extent of the injuries suffered. But when the existence of injury is controverted in the evidence, it is not a sufficient submission of that ultimate and vital fact issue, over proper objection, to inquire whether a particular negligent act or omission was a proximate cause of plaintiff’s injuries, if any, or what amount of money will compensate the plaintiff for the injuries, if any, -sustained by him as a proximate result of the defendant’s negligence, if any. In such cases a special issue directly and unequivocally inquiring whether injury was sustained should be submitted.” * * *
“The trial court erred in refusing to submit an issue inquiring whether respondent sustained personal injuries on the occasion in question. Moreover, it is our opinion that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment and thus requires a reversal of the judgment under Rules 434 and 503, Texas Rules of Civil Procedure.We cannot permit a judgment to stand when a defendant is denied the right to a separate submission of a vital defensive issue. Special'Issue No. 5 did hot afford the jury an opportunity to answer either that respondent was or was not injured on the occasion in question. Under the court’s instruction it could answer the issue only ‘in dollars and cents or “none.”’ If the jury had been afforded an opportunity to do so and had answered that respondent suffered no injuries, the answer to Special Issue No. 5 would have been immaterial. Garza v. San Antonio Transit Co., Tex.Civ.App., 180 S.W.2d 1006, 1009, writ refused, want of merit.” (Emphasis supplied.)

The circumstances of the Van Zandt case and the instant case are nearly identical, except that in the Van Zandt case the defendant-petitioner had prepared and requested the submission of a special issue inquiring as to injuries, in accordance with Rule 279, Texas Rules of Civil Procedure, while in the present case the appellant did not, even though the Supreme Court had held that under the circumstances this was a vital defensive issue. We consider ourselves to be bound by this language in the Van Zandt case. If such be the law, we believe that the submission of such an issue was waived by the defendant and that the trial court was justified in overruling appellant’s objection to the charge in this respect. Appellant’s Points numbers Four and Five are overruled.

By Point number Six appellant complains that the jury’s verdict awarding appellee damages in the amount of $115,000.-00 was excessive and so contrary to the overwhelming weight and preponderance of the evidence as to "be manifestly wrong and unjust, showed bias and prejudice, was supported by insufficient evidence, and required either a reversal or a remittitur. In Point Seven it is asserted that the court erred in submitting the element of future pain and suffering in Special Issue No. 5 over his objections. (The court’s charge used the expression future “mental anguish and physical pain”.) We feel that Point Six must be overruled. The amount of damages to be assessed in a personal injury case is ordinarily for the jury, and before an appellate court is warranted in interfering it should be manifest that the jury was inflamed by passion, prejudice, sympathy or some other improper motive. The amount of the verdict without other proof does not establish bias or prejudice on the part of the jury. El Paso City Lines v. Harris, 233 S.W.2d 620 (Tex.Civ.App., 1950; n.w.h.). “To bring a case within the rule prejudice or passion must be affirmatively shown; excessiveness of the verdict in itself does not establish it, unless it is so flagrantly excessive that it cannot be accounted for on any other ground * * * ”, World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Com.App., adopted opinion, 1937). See also Gulf, Colorado & Santa Fe Railway Company v. De Leon, 373 S.W.2d 886 (Tex.Civ.App., 1953; ref., n. r. e.). No showing is here made of any bias or prejudice, nor do we find that the verdict was in disregard of the evidence or so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

With reference to the seventh point of error dealing with future pain and suffering, there is testimony in the record to indicate that appellee had suffered a brain injury or injury to the central nervous system in the collision and that his symptoms had persisted for some time after the accident, and “the longer a neurological deficit persists, the lower the probability of spontaneous correction”. Among the symptoms were dizziness and instability, for which there was no known “specific treatment”. We cannot say that this condition does not involve future “mental anguish and physical pain”, nor are we able to tell to what extent this element of damage was given consideration in the over-all finding of damages by the jury. We feel that Point No. Seven must be overruled.

The remaining points of error, Nos. Eight through Thirteen, all relate to the argument to the jury of appellee’s counsel. In the eighth point our attention is directed to that part of the argument in which appellee’s counsel stated to the jury: “We are dealing with a man’s whole life. We are dealing with the entire hope of a family * * * when the whole hope of a family is at stake * * * when the whole future of a family is at stake * * At that point objection was made that the reference to “the whole future of a family” was improper and inflammatory argument, and should be stricken. • Appellee’s attorney withdrew the remark and moved that the jury be instructed not to consider it, and the court then instructed the jury that they “would give no credence to and pay no attention and use for no purpose in your deliberations the statement made by counsel as to the whole future of a family being at stake”.

Without burdening this record by repeating here the various other arguments of appellee’s counsel objected to by the counsel for appellant, let it be said simply that the trial court seems to have sustained objections and issued instructions in most instances where objection was raised. We might add that at one point appellee’s counsel told the jury: “ * * * if I ever have seen a case where the jury could sit right in the box where you are now, after having heard the evidence and kind of argument these gentlemen put up, and write in there $115,000.00 * * whereupon the objection was made that comparing this case to other cases counsel had seen was outside the record. This objection was overruled and exception taken. No attempt was made by appellee’s counsel to particularize as to other cases he had seen or to compare them or their merits with the instant case, and while the language used may constitute some breach of propriety, we do not view it as reversible error.

Mention should perhaps be made of two other points of error. Number Twelve asserts that the cumulative effect of each instance of improper argument by appellee’s counsel was so prejudicial that the trial court should have granted appellant’s motion at the close of all argument. We feel it appropriate here to quote from and apply to the record at hand, the language employed by the Supreme Court in King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855, 857:

“The Court of Civil Appeals was of the opinion that while it might be held that no one of the arguments com-, plained of, standing alone, would con-, stitute reversible error, yet all of them combined were so harmful as to require a reversal. We recognize that there may be circumstances where counsel so persistently and continuously overC. steps the bounds of proper argument as to require reversal even though a single breach followed by proper instruction of the court would not have that effect. The accumulation of minor breaches might have the effect of creating an improper prejudice against the opposing party, even though no one of them standing alone would have that effect. Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302. However, in our opinion, this record does not prevent such an accumulation of breaches of the rules of argument as to require a reversal under the rule above referred to.”

We feel that such is true here, and that the circumstances presented to us do not require a reversal under this point of error.

Appellant’s thirteenth (and last) point of error maintains that appellee, in his closing portion of argument, informed the jury of the effect of their answers to special issues. Two excerpts from this argument are emphasized:

“ * * * and answer the first four issues ‘yes’, and the rest of them ‘no’ ” ;

and

“ * * * Remember, from six on down are just as important as the first four, and should be answered, under the evidence ‘no’; and ‘it was not an unavoidable accident’; and the first four questions should be answered ‘yes’ ”.

The Commission of Appeals, in an adopted opinion in Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160, 164, has this to say:

“Complaint is made of that part of the argument of counsel for the plaintiff in which he begged the jury to answer certain of the issues yes and certain of them no, the point being made that such conduct in effect apprised the jury of the legal effect of the answers. It does not appear that counsel fold the jury that' the answers for which he begged would result in a judgment for his client. Reasonable latitude must be allowed counsel in arguing a case submitted on special issues. If, as has been correctly said, he may advise the jury how in his opinion, from the evidence, the issues should be" answered and may specifically say that certain issues should be answered yes and certain issues no [Dallas Ry. & Terminal Co. v. Bankston (Tex.Com.App.) 51 S.W.(2d) 304, 310], he may also earnestly urge or beg the jury to answer certain issues yes and others no, provided the argument is not so made as to inform the jury.of the effect the answers will have upon the judgment to be rendered or as to cause the jury first to agree upon the result desired to be accomplished and then designedly make the answers so as to accomplish such result.”

See also Missouri Pacific Railroad Company v. Goodson, 345 S.W.2d 569 (Tex.Civ.App., 1961; ref., n. r. e.) (which also included an argument on the unavoidable accident issue), and Texas Employers Insurance Ass’n v. Dilleshaw, 373 S.W.2d 856 (Tex.Civ.App., 1964; ref., n. r. e.). This point of error must also be overruled.

All points of error having been considered, they are hereby overruled, and since no reversible error is found in this record, the judgment of the trial court is affirmed.

PRESLAR, J., not participating.


author: SELLERS, Justice.

text:
    BROOKSHIRE BROS., INC., Appellant, v. Mrs. Odie CHERRY, Appellee.
    No. 90.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 28, 1965.
    Rehearing Denied Feb. 25, 1965.

      Herbert Boyland, of Kenley & Boyland, Longview, for appellant.
    Tom Bankhead and T. G. Davis, Carth.age, for appellee.
   SELLERS, Justice.

Mrs. Odie Cherry, as plaintiff, brought this suit to recover for personal injuries received by her while shopping in Brook- . shire Bros., Inc.’s store, as defendant. The jury found issues in plaintiff’s favor and .assessed her damages at $17,750. From this judgment the defendant has duly prosecuted ■this appeal.

The defendant, by several assignments of error, complains that there is no evidence to support the .jury’s verdict of negligence on the part of the defendant, and we are of the opinion this contention must be sustained. The jury found from the issues submitted that Mrs. Odie Cherry slipped while in Brookshire Bros, store on or about Friday, January 13, 1961; that she slipped on a turnip green leaf; that she sustained injuries to her body; that the turnip green leaf in question had been on the floor for a sufficient length of time for the defendant’s agents, servants, or employees in the exercise of ordinary care to have discovered and removed the same; and that such failure to discover and remove the turnip green leaf from the floor by the time the defendant, Mrs. Odie Cherry, slipped was the proximate cause of Mrs. Cherry’s injuries. Thé jury further found that the defendant did not fail to sweep the floor of its store at frequent intervals on. the occasion in question.

Other findings of the jury ’were to the effect that the defendant did not make regular and periodic inspection of the floor of its store on the occasion in question; that said failure was negligence and the proximate cause of the plaintiff’s injury.

This kind of case is not uncommon, and the courts have now held that, in order for a plaintiff in this character of case to recover, the burden is on the claimant to show one of three things, to-wit:

“1) That the Defendant put the foreign substance on the premises, or
“2) That the Defendant knew the foreign substance was on the premises and willfully or negligently failed to remove it, or
“3) That the foreign substance had been upon the premises for such a period of time that it would have been discovered and removed by the Defendant had the Defendant exercised ordinary care.”

J. Weingarten, Inc. v. Tyra, Tex.Civ.App., 381 S.W.2d 215, and cases therein cited.

Three witnesses testified about the turnip green leaf on the floor of the aisle where the plaintiff slipped. The first witness was Linwood Porter, brother-in-law of Mrs. ' Cherry. He testified that he entered Brook-shire’s store about 12:30 on the date in question; that he got himself a buggy and proceeded down the isle on the right-hand side of the store; that this aisle is about six or seven feet wide and some 90 or 100 feet long; that he shopped in this store about twice a week and was familiar with the store. The dairy mart was at the far end of the aisle from which he entered. With reference to the leaves that he observed on direct examination, he testified:

“Q All right sir. Did you notice anything unusual on the floor of the store ?
“A Well, I noticed some leaves on the floor.
“Q What kind of leaves?
“A It was turnip green leaves.
“Q How many of these leaves did . you see or did you count?
“A Well, I didn’t count them. There was more than one.
“Q All right sir. Could — did you no- ■ tice the- appearance of these-leaves? . • ' ' >
“A Well, they looked bruised. They’d been laying there few hours.
“Q Did the leaves appear to be clean or dirty on top?
“A They was dirty.
“Q About what position in the aisle were these leaves located?
“A Well, there was one in particular almost in the center aisle and there was more laying on the side.
# * * *
"Q All right sir. Was there any particular reason you happened to see these leaves on the floor? -
“A Well, I generally keep my eye on the floor as I go down.
“Q Why were yo,u looking down at the floor Mr. Porter?
“A Well, I just — my eyes go back- . wards and forwards, up and down and the main reason — * *
On cross examination:
“Q And how many leaves did you. see?
“A Well, I saw more than two.
“Q How many ?
“A Well now I didn’t stop and take count how many and count all of them. I know there was 2 or 3.
“Q Over what areas were they?
“A Over 5 or 6 foot area.
“Q You say there were at least three?' ' “A. Yeah.’'
’' “Q And you observed them well " ■ ' 'enough that you could tell they appéáred to be bruised?
“A I did.
'■ “Q All three of them appear to be bruised ?
“A Yeah.
* * * * * *
“Q Did you- — now then, with reference to the — up and down the aisle, were they close to one end or close to the other end of the aisle ?
“A Well, as coming down the aisle they was nearer the far end, back west of the building. Vegetables, is on that end of the aisle.
“Q That would be back towards the dairy case wouldn’t it?
“A That’s right.
“Q The vegetable counter is on the north side of the building, isn’t ■ it?
“A That’s right.
“Q And these — what you saw would have been back west towards the dairy counter, is that correct?
“A Well, I don’t know as be west of the dairy counter.
“Q Towards — I said west towards the dairy counter?
“A Yeah.
“Q Did you say about how far they would be back towards the back' of the store there or how far ■ they were from the dairy counter ?
“A Oh, they was 12 or 15 feet.
“Q About how long is that aisle please sir?
■“A I would say it’s in the neighborhood between 90 and 100 feet.
******
“Q And you didn’t see anything until you got back there on the floor did you, any turnip greens?
“A No, not till I got down to where the vegetables was.
"Q And you saw at least three and they were all three bruised?
■“A That’s right.
“Q Did you pick them up?
■"A No, I didn’t need them.
‘Q Did you go around them?
"“A I stepped around them.
•"Q Did you have to move your cart to get around them?
“A I didn’t move it to go around them.
“Q Did you roll over them?
“A Yeah, one of them I did.
“Q About how far from them were you when you saw them?
“A Five or 6 feet.
******
“Q And you could see these — at least three leaves plainly yourself couldn’t you ?
“A That’s right.
“Q Had no difficulty seeing them did ■ you?
“A No.
“Q They were there open and obvious there on the floor weren’t they?
“A Yeah.
“Q And you don’t know of your own personal knowledge whether or not what you saw is what your sister-in-law saw or slipped on if she slipped on it later do you?
“A No, I don’t know it to be a fact.”

Mrs. Odie Cherry testified as follows:

“Q Mrs. Cherry, have you ever had occasion to shop in Brookshire Bro’s store here in Carthage?
“A Yes.
“Q Did you have occasion to be in the store there on January 13th, 1961?
“A Yes.
*******
“Q Is that Brookshire Bro’s store here in town?
“A Store in Carthage.
“Q About what time of day was that please ma’m?
“A Well, I don’t — I didn’t see a clock but I imagine it was around S o’clock.
* * * * * *
“Q All right. Mrs. Cherry, where did you enter the store?
“A From highway 59, on the east side. Front door.
“Q Is that commonly known as the Tenaha highway—
“A Yes.
“Q — In Carthage. All right, what did you do as you entered the store?
“A I stopped and got article—
“Q Where was that article Mrs. Cherry ?
“A It was kind of behind one of the checkers.
“Q There close to the checker stands ?
“A' Uh-huh. • It was stacked behind the checker stand.
“Q All right. Where did you go next ?
“A I started down the aisle towards the dairy cáse.
“Q Which aisle was this Mrs. Cher- . ry?
“A That was the aisle of vegetables, next to vegetable counter.
“Q Which aisle in regard to the rest of the aisles in the store?
“A Oh, it was on the — it was on the west side. I mean the north side. I’m confused there little. It was on north—
“Q Would that be the extreme right hand aisle as you enter the store?
“A Yeah, uh-huh.
“Q All right. Whát do they have on that aisle Mrs. Cherry, when you went in ?
“A Well, there’s vegetables.
“Q All right. Vegetables. On which side of the aisle are they?
“A They’re on the right side.
“Q All right. What’s on the other side?
“A Canned goods.
“Q Which side of the aisle were you walking down as you proceeded toward the end of the store?
“A Left side.
“Q Left side of the aisle?
“A Yes.
“Q That would be the side next to the canned goods, is that correct?
“A Yes.
“Q All right. What happened then?
“A Well, I just walking down there and all of a sudden, well I stepped on something and my foot slipped way out in front of me and my body twisted and I threw my hand up and I hit that counter and bumped those cans and when I got straightened up—
“Q What — is that what kept you from falling ?
“A Yes, that’s what kept me from falling.
“Q Which foot did you step on this—
“A My right one. My heel caught the—
“Q Okay. What happened then?
“A Well, when I got straightened up, Mr. Sistrunk came around where I was at—
“Q Now excuse me just a minute. Did you feel any unusual sensation immediately after — •
“A Yes, I thought I had torn some-, thing loose in my stomach.
‡ j}: sjs 5^ s)s
“Q All right. At that time did you look to see what you stepped on?
“A Yes, I looked.
“Q What was it?
“A It was a turnip green leaf.
“Q Would you describe the appearance of this turnip green leaf?
“A Well, it wasn’t' — it wasn’t brown. It seemed to he just a turnip green leaf. It wasn’t—
“Q Was it green in color ?
“A It was green in color. It wasn’t brown or anything like that.
“Q All right. Did you pick it up or examine it closely or anything?
“A No, it scared me when I slipped.
“Q Did you pay any particular attention to it at that time?
"A No, after I looked down to see what it was, I was already scared and sick.
“Q All right. What happened next?
“A Mr. Sistrunk came around there.
“Q Excuse me. Who is Mr. Sis-trunk?
“A He works at Brookshires.
“Q You know what his capacity is there or what his job is at the store or title?
“A Well, I think he takes care — I’m not sure of this. I think he takes care of — suppose to take care of the vegetables.
“Q All right. What did he do, if anything ?
“A He walked over and put his hand on the vegetable bin and I told him, I said T slipped — ’
“Q You have any conversation with him at that time?
“A Yes.
“Q What was that conversation?
“Q Proceed then Mrs. Cherry.
“A He came around and I showed him what I had done and I said ‘I have slipped on that and I have hurt myself’ and he told me, said — ■
“A And he told me if I really wanted to slip good to slip on one of them green beans.
“Q All right. Say anything else to you at that time?
“A I turned and walked off.
“Q All right, Did you say anything else to him?
“A No.
“Q Did you see him pick up the turnip green leaf?
“A No, I did not.
“Q Do you at this time know what happened to that turnip green leaf?
“A No, I do not.
“Q What did you do next after you turned ?
“A I went to the checking counter.
* * * * * *
“A I told the girl that I had slipped and hurt my back or my stomach or something, I — and she said— And I told her that I had slipped and I had hurt myself and she asked me would I like for her to get me a chair.
“Q What was this lady’s name, did you know her?
“A Miss Ida Bell Bailey.
“Q All right. Did she get you a chair ?
“A No, she told me the manager was gone. I said ‘I’m going to try to get home Ida Bell. I am sick. I am hurting and I’m — ’ ”

On cross examination:

“Q Mrs. Cherry you recall what kind of floor was in the store that day?
“A What do you mean what kind of floor?
“Q Was it tile floor like this one here in the courtroom or was it some other—
“A It was tile.
“Q The store was lighted up all right from the lights and from outside light wasn’t it?
“A As far as I was concerned it was.
“Q You had no difficulty in seeing around because of the light did you?
“A Not that — not on the light.
“Q All right. And do you know how wide that aisle was that you were going down?
“A I really don’t but I’d imagine it was around 6 or 7 foot wide.
“Q All right. Now then, there was no other obstruction there in the aisle such as any extra counter or anything was there?
“A What do you mean extra counter in the—
“Q In the aisle itself. The aisle was open wasn’t it?
“A Well, there wasn’t anything out in the middle of the aisle—
“Q That’s what I mean.
“A —if that’s what you mean.
“Q And as you started down that aisle you could see all the way to the dairy case couldn’t you?
“A Yes.
“Q Now I believe it’s true isn’t it that you do not know where it was up and down that aisle that this accident happened ?
“A I don’t know where it happened. What do you mean?
“Q By that I mean you do not know whether or not you were a fourth of the way down towards the dairy case, half way —
“A When I slipped it scared me and I didn’t estimate that at the time.
“Q All right. My question is and I’ll try to ask questions that you can answer by yes or no. My question is you do not know how far you were down the aisle when the accident happened to you?
“A I wouldn’t say that because—
“Q Were you at least half way down the aisle?
“A I wouldn’t say that.
“Q Would you say whether or not you were a fourth of the way down the aisle?
“A I wouldn’t say that.
“Q Or three-fourths of the way down the aisle?
“A I wouldn’t say that.
“Q Now it’s true isn’t it that as you started down that aisle you never looked down at the floor?
“A I did not.
“Q Do you know how long that aisle is Mrs. Cherry?
“A I do not
“Q Have you been back in there since then?
“A Yes I have.
“Q Have you ever been there while any measurements were made?
“A No, I have not.
“Q Did you ever look at the object that you say you slipped on enough to identify it?
“A I looked -down.
“Q What was it?
“A I seen that it was a turnip green leaf.
"Q You say — you saw only one turnip green leaf didn’t you?
“A I didn’t survey the store after-wards because it scared me.
“Q I asked you whether or not you saw more than one leaf?
“A I didn’t look for anything alse.
"Q Did you see more than one leaf?
“A ' No, I didn’t. '
“Q. You did look at this leaf long enough and sufficient enough to tell that it was a large leaf didn’t you ?
“A. Yes.
“Q Now then, as I understand your testimony, you looked down on the floor' and saw the leaf ?
“A No, I didn’t say I looked—
“Q I mean after the accident?
“A Yes, after the accident I looked down on the floor.
“Q How far were you standing from it please?
“A Well I — when my foot slipped well naturally it moved the leaf.
“Q Did the leaf move with your—
“A The leaf moved with my foot.
“Q Then the leaf was directly at your feet?
“A No, not when I — you mean when it slipped?
“Q No ma’m, after it was over with and you looked down and saw what you saw, was — where was it from your feet?
“A Well, I done straightened up when I looked down and the leaf was off away from me then.
"Q How far away from you was it Mrs. Cherry? As far as — assuming that you’re standing up where you are. Would it be as far away from you as this piece of paper is on the floor when you looked at it or further or closer or—
"A Well, I couldn’t say that. I wouldn’t say that, how far it was because I didn’t — I didn’t measure it. I don’t know and it scared me.
"Q All right. What is your best judgment as to how far it was?
“A I wouldn’t say that because I didn’t measure it and' I wouldn’t know.
"Q Could it have been as far as this piece of paper is?
"A I wouldn’t say that.
“Q But you did — to use your own words, did say that you were standing away from it when you looked ?
“A When I — when I took my foot up. When I pulled my foot back but the mark was on the floor.
“Q My question though Mrs. Cherry was you were standing off away from the leaf when you looked at it?
“A When I straightened up and looked down and seen what it was.
“Q But you looked at it good enough-to tell, No. 1, that it was a large leaf didn’t you?
“A Yeah.
“Q You looked at it good enough and' long enough to tell it had a.stem on it didn’t you? .
“A Yes.
“Q You looked at it good enough and long enough to tell.: that you had stepped on the stgm didn’t you?
“A. Yes.
“Q And you looked at, it good enough and long enough to tell that it left a green streak on the floor?
“A Yeah, I stood there a while after I stepped on it.
“Q And did you point it out to Mr.' Sistrunk when he came up?
“A I sure did.
“Q You looked at it good enough and long enough to tell it was green and not brown didn’t you?
“A I looked at it — I wouldn’t say that it wasn’t — I just know it. was a turnip green leafi. It scared me when I stepped on it.
“Q All right. Now then my question was though that you looked at it long enough to tell that it was green and not brown didn’t you?
“A Well, it wasn’t no dried up one. I’ll say that.
“Q Didn’t you say this morning in Response to a question by Mr. Davis that it wasn’t brown or anything like that?
“A I said that as far as I knew that it wasn’t brown or drawed up like that. He asked me was it a green leaf.
“Q Well, to get back to my question though, didn’t you say this morning in reply to a question by Mr. Davis that it wasn’t brown or anything like that?
“A Well, it wasn’t brown. "If it had. been brown I might Hot 'could have told what it was.' •'
“Q Now then, it looked • green and fresh didn’t it?
“A I wouldn’t say that. .
“Q When your deposition was-taken you were asked if it appeared to., you it was fresh and you, said ‘Yes’ didn’t you?
“A I don’t think so. Mr. Earl .Sharp taken my deposition and—
“A He had me so nervous—
* * * A' * *
“Q Mrs. Cherry, I believe that I was asking you about whether'or not you had ever stated that this turnip green leaf and stem appeared to you to be fresh. Have' you' ever made such a statement?-
“A I said I looked down and it looked green.
“Q You recall Mrs. Cherry your deposition has been taken . in this-case. I believe it was taken on May 4th, 1962. You recall the occasion of your deposition — you recall it was taken?
“A Yes.
“Q You recall before your deposition was taken that you were placed under oath and all questions and answers were made under oath?
“A Yes.
“Q And do you recall Mrs. Cherry that thereafter on May the 15th, 1962, you signed the deposition or shows it was subscribed and sworn to on May ISth, 1962, before a Notary Public here in Panola County ?
“A Yes, sir.
“Q And you recall this question asked you. ‘And from where you looked at it it was a green turnip green' leaf and stem ?’ And your answer was ‘Yes, sir,’ Next question: ‘And it appeared to you that it was fresh?’ You answered ‘Yes’.
“A I said it appeared to. I didn’t say it was.
"Q And you don’t know about this turnip green leaf having any dirt or rotten places on it do you?
"A I didn’t look at it that good.
■“Q You didn’t see any on it from where you were standing?
■“A I didn’t look at it that good. I just looked down—
"“Q Well, whether — my question is, did you see any on it when you looked down there at it?
“A I wouldn’t say I did or I wouldn’t say I didn’t. I don’t know.
“Q You don’t recall seeing any though do you?
“A No, I don’t.
■“Q All right. I believe we’ve already —you’ve already mentioned that you did not see any other leaf except that particular one?
“A It scared me and I didn’t look.
“Q Well, you did not see any other leaf but that one did you ?
“A No, I did not
******
' “Q Mrs. Cherry, did you see this turnip green leaf before you stepped on it?
“A No I did not.
“Q Where were you looking as you proceeded down the aisle ? -
“A I was looking down at the dairy case.
“Q Mrs. Cherry, where there vegetables and groceries on each side of this aisle as you proceeded down it?
“A Well I suppose. Groceries on one side and canned goods on one side. The vegetables on the other side.
“Q And then where was the milk ?
“A It was in the back.
“Q At the end of the aisle?
“A Yes, in the dairy case.
“Q Were those products that you saw there all displayed for sale by the store ?
“A What — explain what you mean.
“Q Were they there for customers to pick up and put in their shopping bags if they saw fit?
“A Yes. * * *”

The Witness Sistrunk testified as follows:

“Q All right. What are your duties specifically for Brookshire Brothers? ;
“A I’m produce manager.
“Q Tell the jury, if you would; just what being produce manager means ?
“A Taking care of all the produce. Seeing that everything is well kept. Also taking care of the aisle that the produce counter is on. Buying the produce, marking it for sale.
“Q Mr. Sistrunk were you working for Brookshire Brothers on January 13th, 1961?
“A I was.
"Q Were you working as produce manager at that time?
“A I was.
“Q I’ll ask you if — where in the store do you spend most of your working time Mr. Sistrunk?
“A Most of it up and down the produce aisle.
“Q All right. Would that be on the aisle that’s nearest to the north wall?
“A Right.
“Q And that is the aisle where the vegetables, fruits and other produce is kept?
“A That’s right.
“Q All right sir. Is it your responsibility to put the produce in the .bins where they’re kept?
“A I-t is.
“Q All right sir. Mr. Sistrunk, as an employee of Brookshire Brothers, are you given instructions as to the care of the floors?
“A I am.
“Q Tell the jury what those instructions are.
“A We all have instructions to remove any—
“Q All right. Go ahéad Mr. Sistrunk and tell the jury what you started to please sir.
“A We all have instructions to watch the floor at all times for any foreign objects and no matter where it is nor what we’re doing, to remove that object at any time. ' Immediately. Drop whatever we’re doing and take any object off the floor that might be dangerous or might mar the looks of the store.
“Q Mr. Sistrunk, do you — do you do any sweeping?
“A I do.
“Q What do you sweep generally sir?
“A The produce aisle.
“Q All right.
"Q Do you remember January 13th,, 1961?
“A I do.
“Q Did you sweep that day?
“A I did.
"Q What did you sweep?
“A The produce aisle.
“Q All right sir. I’ll ask you on that-day what time you went to lunch ?-
“A 11:30.
“Q All right sir. What time — did you-leave the store when you went to-lunch ?
“A I did.
“Q What time did you get back into-the store?
“A One o’clock.
“Q What did you do when you first-got back to the store?
“A I checked the produce aisle,, swept — to see if there was any objects on it and swept it.
“Q All right sir. That’s the aisle-that’s in front of the produce-counter, is that right sir?
“A That’s right.
“Q All right. In addition to — on-January 13th, 1961, particularly-calling your attention to that, afternoon sir, did you in addition» to sweeping the floors did you make any inspections of the floor?
•“A I made regular inspections all afternoon.
“Q All right sir. Tell the jury just how you made these inspections? What you would do ?
“A Well I usually have to go to the back of the store to the cooler for produce to add to the rack, as I have to, and when I come back with that produce I always inspect the aisle and if there’s any foreign substance on it, I remove it immediately.
“Q All right. Then that afternoon you did make those inspections ?
“A I did.
“Q All right sir. I’ll ask you if you recall on January 13th, 1961, seeing this lady, Mrs. Odie Cherry, in the store?
“A I did.
“Q About what time was that?
“A Approximately 5 o’clock.
“Q All right. Where did you see her? On what aisle?
“A She was on the produce aisle.
“Q All right. Did you have some conversation with her ?
“A I did.
“Q Did she report something to you?
“A She did.
“Q What did she tell you?
“A She told me that I had better pick up this turnip green leaf.
“Q Yes, sir.
“Q Before someone falls on it. Said ‘I have already slipped on it.’
“Q She did not tell you she fell?
“A No, sir.
“Q All right. Did you have an opportunity to inspect. the floor around where Mrs. Cherry was standing ?
“A I did.
“Q Did you see — did she point out anything in particular to you?
“A Nothing only the turnip green leafi.
“Q Did you look around the floor elsewhere in that immediate vicinity ?
“A I did.
“Q Did you see anything else?
“A No, I did not.
“Q Only thing you saw was one turnip green leaf?
“A One turnip green leaf.
“Q Had you been in the back right before that happened?
“A I had.
“Q All right sir. And then were you enroute up to the front of the store ?
“A I was.
“Q And that’s where Mrs. Cherry spoke to you?
“A That’s right.
“Q All right sir. Did you have—
“Q Did you examine the leaf Mr.—
“A I did.
“Q All right. Tell the jury what it looked like to you?
“A It was full grown turnip leaf, fresh one, approximately 12 inches . long and.was still damp where it ' had been — had recently come from the produce rack.
“Q What color was it?,
“A Green.
“Q Was the leaf itself bruised?
“A No.
“Q Was any part of it bruised?
“A The stem was.
“Q With reference to the floor of the store Mr. Sistrunk, where was the leaf pointed out to you?
“A Approximately 25 feet from the front of the produce counter.”

On cross examination:

“Q What side of the aisle was it on?
“A On the side next to the pickle rack.
“Q Have you looked at this drawing here Mr. Sistrunk, during the noon hour?
“A No, I haven’t.
“Q Wasn’t shown to you?
“A No.
“Q Could you take a look at this please sir and assuming this is the front of the store and this is the produce aisle you’re speaking of—
“A That’s right.
“Q And this is the produce racks or bins along this wall and I think it has been established it’s some 52 feet in length there. Would you take the chalk and indicate where this leaf was?
“A This is the produce rack.
“Q I believe it has been said this is refrigerated part of the rack and then this is the dry area of the rack.
"A Right along there I would say.
“Q All right Was it closer — was it closer to the canned goods side than it was the produce side?
"A Yes, sir.
“Q About how far from the canned goods side was it?
“A Two or 2/¿ feet
“Q Two or 2/2 feet. If the aisle is 7 feet across there, be close to the middle?
“A No, if the aisle was 7 feet it would be 2 feet from the pickle rack, put it 5 feet from the produce rack.
“Q Closer to 2 feet than 2¡/£ ?
“A Well I wouldn’t say that. I didn’t measure it.
“Q About 2 or 2^ feet from the pickle rack?
“A Right.
“Q As you have indicated here, that is just about middle ways of this entire aisle? Is that—
“A Well, it’s a little closer to the back than to the front
“Q All right. Now—
“A I mean to the front than the back is what I mean, or else closer to the back of the refrigerated produce rack.
“Q It’s not drawn in proportion and if, you need to move that particular spot then on this drawing to malee it more accurate or you think that pretty well represents where it is in relation to the—
“A Well, the. way that’s drawn, it was probably not exact.
“Q It was 25 feet — 32 feet of refrigeration and about 25 feet up the refrigerated part .
“Q Would you move it for me. I don’t want to—
“A Well, I don’t want—
“Q Would it be here?
“A If I had a ruler or something I probably could move it better but it’s 25 feet from here up to where it would have been even with it. It’s 32 feet there. Other words, I should leave about 7 feet there.
“Q All right. Maybe move it slightly but not a great deal, is that correct?
“A That’s correct.
“Q Now you saw that the leaf twas on the floor ?
“A It was.
“Q Did you hear Mrs. Cherry when she bumped the — the pickle counter side and rattled the cans?
■“A I did not.
■“Q That did not attract your attention to come around and see—
•“A No, sir.
■“Q Where were you immediately before coming up the aisle to see her?
■“A In the back of the store.
■“Q What were you doing back there ?
“A As best I can remember I was preparing lettuce to put on the rack. I’m not positive of that. I wouldn’t say for sure what I was preparing. I was preparing something to bring up to the rack.
"Q You’re not sure exactly what?
"A I wouldn’t say exactly what.
“Q Was this door closed, the back, whenever you were preparing the lettuce ?
“A Well I’m sure it was. It’s swinging door.
“Q You didn’t hear any unusual noise that attracted your attention?
“A I did not. * * * ”

In view of the evidence above quoted, the plaintiff, in order to recover, must depend upon the third ground of recovery set out above, and that is the turnip green leaf had been on the floor of the aisle a sufficient length of time for the defendant’s employees to have discovered and removed the same. In order to establish this, the plaintiff had the burden of establishing that the turnip green leaves seen by Mr. Porter remained on the floor from 12:30 until 5 o’clock and plaintiff slipped on one of those leaves. We are of the opinion that this jury’s finding cannot find support in the evidence. In the first place, the leaves that Mr. Porter saw were brown, dirty and dry, and were some distance farther down the aisle than the leaf on which the plaintiff slipped. The leaf upon which the plaintiff slipped was green, was not dirty and dry. In addition to this, the jury found that the defendant swept its floors at frequent intervals on the occasion in question. This finding by the jury is in keeping with the testimony of Sistrunk who said he swept the floor after Mr. Porter saw the leaves on the floor.

In the light of these undisputed facts, we think it must be held that there is no evidence in the record that the leaf on which the plaintiff slipped had remained on the floor for a sufficient length of time for the defendant’s employees to have discovered and removed the same before the accident occurred.

In this connection, the facts further show that this was a busy day in the store and a large number of people had shopped in the store on that day. We think our holding is-supported on both the facts and law by the case of Worth Food Markets, Inc. v. Le Baume, Tex.Civ.App., 112 S.W.2d 1089.

This court concludes that there is no evidence in the record that will support the jury’s verdict, and for this reason the judgment is reversed and here rendered for the defendant.


author: DUNAGAN, Justice.

text:
    Aline H. KENDRICK et al., Appellants, v. TIDEWATER OIL COMPANY et al., Appellees.
    No. 109.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 11, 1965.
    Rehearing Denied March 4, 1965.

      Ross H. Hemphill and Michael H. Sebastian, McCulloch, Ray, Trotti & Hemp-hill, Dallas, for appellants.
    Jack Brandon, Houston, for Tidewater Oil Co.
    Wallace G. Malone, Dallas, for Texaco, Inc.
   DUNAGAN, Justice.

This is a trespass to try title suit brought by appellants against Tidewater. Oil Company and Texaco, Inc., appellees herein, and Nettie Hunt, A. E. Burgin, Lasca, Inc. and John J. Reynolds in which appellants sought to recover an undivied one-half mineral interest in a 73^4 acre tract of land in Anderson County, Texas.- Appel-lees and the defendants, Nettie. Hunt and A. E. Burgin, moved for summary judgment. The trial court granted all such motions and entered interlocutory decrees that appellants take nothing against ap-pellees and the defendants, Nettie Hunt and A. E. Burgin. Appellants then took a voluntary non-suit against the defendants, Lasca, Inc. and John J. Reynolds, and thereupon the trial court entered -a final judgment that appellants take nothing against appellees and the defendants, Nettie Hunt and A. E. Burgin, Appellants have appealed the final judgment of the trial court only insofar a.s it granted summary judgment in favor of. appellees.

■ In the trial court appellants, in addition to the formal trespass’to try-.title, counts; pleaded their title specially, -alleging" that they were the btwbrs" of an "undivided one-half mineral interest in a 73 54 acre tract of land in Anderson County, Texas, and that the mineral interest claimed by appellants was “the undivided one-half (/) interest other than the undivided one-half (/). interest in said oil, gas and minerals in and under said land leased by Lou Ella Hartón, Individually (and not as Community Survivor of the community estate of herself and deceased husband, Sidney Hartón) to E. H. Van Patten on July 7, 1933, * * * ” Appellants also alleged that the four defendants other than ap-pellees claim to own a portion of the mineral interest in the 73/ acre tract and that appellees claimed to own an oil and gas lease covering the undivided one-half mineral interest claimed by appellants “by virtue of- that certain oil and gas lease dated July 7th, 1933 from Lou Ella Hartón, for herself individually and as Community Survivor of the community estate of herself and deceased husband Sidney Hartón, * * * ” Appellants further alleged that community administration taken out by Lou Ella' Hartón on the community estate of herself and her deceased husband, Sidney Hartón, ceased to exist many years before Lou Ella Hartón executed said oil, gas and mineral lease of July 7, 1933, because all' debts of the community estate had long since been paid, and that the 731/2 acre tract in question was purchased with community funds.

At the hearing on the motions for summary judgment, the following undisputed facts were established:

Appellants, Aline H. Kendrick, Cecyl Hartón Stanley, and Verlee S. Hartón Fry, who, joined by the respective spouses of Cecyl and Verlee, were plaintiffs in the trial court, are the daughters of Sidney Hartón and his wife, Lou Ella Hartón. Sidney Hartón died intestate on November 23, 1919, survived by his wife and these three daughters. On December 31, 1919, Lou Ella Hartón, after having duly qualified, was appointed community adminis-tratrix of the community estate of herself and her deceased husband.

Both appellants and appellees claimed title to the 731/2 acre tract under the following conveyances and instruments emanating from R. A. Johnson and wife, Frances Johnson, who were stipulated to be the-common source- of title.

On or about December 6, 1919, R. A.. Johnson and wife, Frances Johnson, executed a deed conveying the 73/ acre-tract in controversy to Alfred W. Johnson. In this deed R. A. Johnson and wife reserved a vendor’s lien to secure payment, of a $1,750.00 note given by Alfred W. Johnson, said note being payable one year after the date of the deed. ■ On March 22, 1920, this note and the vendor’s lien securing it were transferred to Mrs. Lou: Ella Hartón.' At the same time the $1,750.-00 note was extended to December 6, 1926.. By deed dated January 30, 1927, A. W.. Johnson (the same person as Alfred W. Johnson) and wife conveyed said 731/2-acre tract to Mrs. Lou Ella Hartón. On July 7, 1933, “Lou Ella Hartón, for herself individually and as community survivor of the community estate of herself and deceased husband; Sidney Hartón,” executed an oil and gas lease to E. H. Van Patten describing and purporting to-cover said 73/ acre tract and two other tracts of land in Anderson County, Texas. By mesne conveyances emanating from E. H. Van Patten, title to this lease became vested in appellees.

At the time said oil and gas lease of July 7, 1933, was executed, no partition or other action to terminate the powers of Lou Ella Hartón had been asked for or had in the community administration proceedings.

On these undisputed facts appellees’ motion for summary judgment was granted. On these same facts motions of the defendants, A. E. Burgin and Nettie Hunt,, who claimed mineral interests in said 73/ acre tract uiider mineral conveyances from Lou Ella Hartón, executed in 1933. and 1934, respectively, also were granted.

Appellants’ sole point of error presented to this court is that “the trial court erred in rendering summary judgment in favor of appellees for the mineral leasehold estate in the land in this suit, because there was a genuine issue of fact raised in the pleadings, and because there were no affidavits as to payment of delay rentals or affidavits of royalty for mineral production which would keep said oil, gas and mineral lease in force after the primary term thereof.”

Appellees counter with the following points:

First, “Appellants are barred from prosecuting this appeal because the portion of the trial court’s judgment for which they took no appeal is now final, and the portion of such judgment which is now final determined that Appellants have no title to the mineral interest they are claiming in this suit.”

Second, “The title pleaded by Appellants raised no issue as to whether Appellees’ oil and gas lease remains in force, and therefore a showing that such lease remains in force was not required to sustain Appellees’ motions for summary judgment.”

Third, “The theory upon which this case was submitted in the trial court raised no issue as to whether Appellees’ oil and gas lease has been maintained in force and Appellants cannot raise this issue for the first time on appeal.”

Fourth, “The trial court was correct in granting Appellees’ motion for summary judgment because the pleadings and evidence show that there is no genuine issue as to any material fact and that, as a matter of law, Appellants are not entitled to recover in this suit.”

The oil, gas and mineral lease from Lou Ella Hartón to E. H. Van Patten dated July 7, 1933, was for a primary term of 10 years from the date thereof.

Appellees’ motion for summary judgment contained no supporting affidavit in connection with the payment of delay rentals or the payment of royalties for production under said oil, gas and mineral lease.

It is appellants’ contention that the failure of appellees to attach such affidavit to their motion for summary judgment and there being no other evidence offered that the primary term of said oil, gas and mineral lease had not expired, that this became a fact issue to be determined by the trier of the facts. As hereinbefore stated, appellants brought this suit in trespass to try title to recover the undivided one-half mineral interest claimed by them in their petition. All defendants responded to appellants’ petition with pleas of not guilty. Thus, there was put in issue the title to the entire one-half mineral interest claimed by appellants. In Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848, the court said:

“Petitioner’s general plea in trespass to try title and respondents’ plea of not guilty put in issue the title to the entire 143th mineral interest, and the effect of the ‘take nothing’ judgment was, as between the parties, to divest all title to the entire interest out of petitioner, Halbert, and to vest the same in respondents Green. * * ” Also see Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490.

Appellants’ petition affirmatively alleged that as between appellants and the defendants, Nettie Hunt, A. E. Burgin, Lasca, Inc. and John J. Reynolds, this one-half mineral interest was in issue and that as between appellants and appellees the mineral leasehold estate on such undivided one-half interest was in issue. The voluntary dismissal by appellants of the defendants, Lasca, Inc. and John J. Reynolds, from the suit left only appellees, Nettie Hunt and A. E. Burgin as defendants in the suit. On April 21, 1964, the trial court entered judgment that appellants take nothing by their suit against appellees and the defendants, Nettie Hunt and A. E. Burgin. The effect of this judgment was to divest all title to the undivided one-half mineral interest in issue out of appellants and to vest it in the defendants, Nettie Hunt and A. E. Burgin, and to vest the oil and gas leasehold estate covering such undivided one-half mineral interest in ap-pellees. Halbert v. Green, supra; Hejl v. Wirth, supra; Permian Oil Co. v. Smith, supra; Appellants did not appeal the trial court’s judgment insofar as it adjudicated that they take nothing against the defendants, Nettie Hunt and A. E. Burgin, and such judgment that appellants take nothing against these two defendants, became final 30 days after its rendition. Rule 329b, Texas Rules of Civil Procedure. The portion of a judgment awarding a recovery to one party from which no appeal is taken is final on the appeal and all subsequent litigation. Speckels v. Kneip, 170 S.W.2d 255, (Tex.Civ.App.) 1942, writ refused; Aetna Casualty & Surety Co. v. Woodward, 41 S.W.2d 674, (Tex.Com.App.); 34 Tex.Jur.2d 523, Section 472.

The final adjudication that the undivided one-half mineral interest claimed by appellants is not owned by them, but instead is vested in the defendants, Nettie Hunt and A. E. Burgin, is binding on them, and forever bars appellants from asserting such title against anyone who was a party to the suit. Vernon’s Ann.Civ.St., Article 7391; Stark v. Hardy, 29 S.W.2d 967, (Tex.Com.App.) 1930; Maury v. Keller, 53 S.W. 59 (Tex.Civ.App.) writ refused; Port Aransas Properties, Inc. v. Ellis, 129 S.W.2d 699, (Tex.Civ.App.) 1939, writ dismissed, judgment cor.; McClellan v. Pye, 142 S.W. 99 (Tex.Civ.App.1912), writ refused. Thus, appellants on this appeal have no title to the undivided one-half mineral interest they seek to recover from appellees, such title having been determined by final judgment of the trial court to be vested in the defendants, Nettie Hunt and A. E. Burgin. •

Further, the final judgment of the trial court also bars appellants'from asserting the title they claim on this appeal because issues upon which such title depends were determined adversely to them by the portion of the trial court’s judgment from which they did not appeal. Appellants’ petition shows that their suit against all defendants was based on the same contention. The record on this appeal shows clearly that the theories upon which the same was submitted to the trial court and issues on which the case was decided between appellants and appellees on the one hand and between appellants and defendant, A. E. Burgin, on the other hand were identical. The final judgment in favor of A. E. Burgin determining that appellants do not have the title they claim, therefore, is now res judicata, and precludes appellants from asserting such title against ap-pellees. V.A.C.S., Article 7391; Toole v. Christ Church, Houston, 141 S.W.2d 720, (Tex.Civ.App.) 1940, writ refused, a trespass to try title case in which the court, upholding a plea of res judicata, stated:

“It is apparent from plaintiff’s petition in said cause No. 95827 (the former suit) that the same issues were before the court in that case as are presented for adjudication in this case, with the exception of the issues of limitations, * * *. •
“A party losing under a valid judgment in an action of trespass to try title is precluded thereby from asserting title to the land in controversy through any fact that existed at the time that judgment was rendered. * * * These issues having been adjudicated in the former suit, appellant is precluded from again raising .them in this cause.” .• .

Appellants cannot be aggrieved by the judgment in favor of appellees awarding the leasehold ' title to minerals in which they have no interest. Hunt v. Burrage, 84 S.W.2d 1098, (Tex.Civ.App.) 1935, writ dismissed. In the ^case of Schwarz v. Smith, 160 Tex. 280, 329 S.W.2d 83, the Supreme Court said:

“Petitioners have now had a full and adequate hearing and it has been determined that they had no interest in the land involved. It follows that as petitioners had no title, they were not prejudiced by the 1954 judgment, regardless of its nature, be it characterized as valid, voidable or void.”

An appeal will be dismissed when the appellant is not aggrieved by the judgment or order and is not therefore entitled to appeal, as where he does not have the direct and positive interest in the proceedings which could be prejudiced by the judgment appealed from. Tex.Jur.2d, page 204, Section 701; In re Glynn’s Estate, 62 S.W.2d 1019 (Tex.Civ.App.) writ refused; Hawley v. Whitaker, 33 S.W. 688 (Tex.Civ.App.) no writ history; Hunt v. Burrage, supra; Onion v. Cain, 64 S.W.2d 418, (Tex.Civ.App.) no writ history.

As shown by the statement of the case above, appellants in this suit pleaded their title specially, alleging that they owned an interest in the 731/4 acre tract because Lou Ella Hartón purchased this tract with community funds. In essence, their contention was that as heirs of their deceased father they owned a one-half interest in these funds, and that the use of such funds in the purchase operated to vest in them an undivided one-half interest in such tract on a theory of resulting or constructive trust. Appellants’ suit is in no wise based on the proposition that appellees’ oil and. gas lease has not been maintained in force,' and no issue as to whether such lease had been maintained in force was raised either in the pleadings or in the evidence. The record shows that at the trial court appellants pleaded and contended that the oil and gas lease owned by appellees was never effective to -cover the undivided one-half interest appellants claimed in the 73)4 • acre tract. This was the sole theo'ry of their suit, and -their right to recover is, limited to. the title they pleaded. Brunson v. Yount-Lee Oil Co., 32 S.W.2d 893 (Tex.Civ.App.), affirmed 122 Tex. 237, 56 S.W.2d 1073; Franzetti v. Franzetti, 124 S.W.2d 195, (Tex.Civ.App.) 1939, writ refused; Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944; Bute v. Stickney, 160 S.W.2d 302, (Tex.Civ.App.) 1942, writ refused, W.O.M.; Barnhart v. San Antonio Joint Stock Land Bank, 124 S.W.2d 207, (Tex.Civ.App.1939), no writ history.

The facts in Brunson v. Yount-Lee Oil Co., supra, are strikingly similar to the case at bar. The Court of Civil Appeals sustained a general demurrer to plaintiff’s petition, saying:

“* * * Appellants (i. e., plaintiffs) specially pleaded their title, and it is clear from the allegations of their petition that the only title which they assert to the land in controversy is that inherited by them through their deceased mother as a portion of the community estate.
“ * * * Appellants having specially pleaded their title are confined to proof of that title, and, it appearing from their petition that the title pleaded was not good, the general demurrers should have been and were properly sustained. * * * ”

In Franzetti v. Franzetti, supra, the plaintiff sued in trespass to try title alleging a parol gift of land. The trial court instructed a verdict against the plaintiff on the theory that plaintiff failed to prove on the elements required to sustain a parol gift. On appeal plaintiff contended that' even if the'evidence did not sustain the parol gift to her, nevertheless, it was sufficient to raise a constructive trust in her favor or to raise a homestead interest in her behalf. The Court of Civil Appeals denied both of these contentions saying:

“Neither of these contentions can be sustained. There was no- pleading by appellant on which to predicate either.. * * *
“It is * * * settled rule that where a plaintiff sues in trespass to try title and in addition thereto pleads his title specifically, he is bound by the title relied upon in the special plea, and cannot thereafter rely on his formal plea of trespass to try title. * * * it is clear that the pleadings of both parties confined the issues of this suit entirely and exclusively to that of title by parol gift. The pleadings raised that issue only and the case was tried and the evidence introduced on that theory only. Under such circumstances, and the well settled rule above stated, we think appellant’s right of recovery is confined to this issue. She nowhere pleaded any homestead right * * *; nor the establishment of a parol trust in the property for her benefit. Consequently she cannot now be heard to say that, under her general plea of trespass to try title, the evidence raised these issues.”

Not only did appellants plead their title specially, thus limiting their right to recover to the title pleaded, but the case was submitted to the trial court on the title so pleaded. It is well established that parties on appeal are restricted to the theory on which the case was tried in the court below. 3 Tex.Jur.2d 628, Sec. 371; House v. Rogers, 23 S.W.2d 414 (Tex.Civ.App.), affirmed Rogers v. House, 39 S.W.2d 1111, (Tex.Com.App.).

The undisputed facts established by appellees at the hearing on the motions for summary judgment showed that appellants were not entitled to recover on the title they pleaded because at the time Lou Ella Hartón executed appellees’ oil, gas and mineral lease she was a duly qualified community administratrix of the estate of herself and her deceased husband and as such qualified community administratrix she had full power to execute said oil and gas lease binding on the entire mineral estate in the 73)4 acre tract. Brunson v. Yount-Lee Oil Co., supra; Fidelity Union Ins. Co. v. Hutchins, 134 Tex. 268, 133 S.W.2d 105; Drought v. Story, 143 S.W. 361, (Tex.Civ.App.1912), (writ refused); Todd v. Shell Petroleum Corporation, 85 S.W.2d 1049, (Tex.Civ.App.) 1935, writ refused; and Walker v. Koger, 131 S.W.2d 1074, (Tex.Civ.App.1939), writ dismissed, judgm. cor.

It is elementary that in a trespass to try title suit the plaintiff must recover on strength of his own title, and not on the weakness of the defendant’s title. 56 Tex.Jur.2d 69-70, Section 7 and cases cited therein at notes 11 and 12. Since the undisputed facts in this case show that appellants were not entitled to recover on the title they pleaded, the summary judgment in favor of appellees was proper and should be sustained. Harper v. Fikes, 336 S.W.2d 631, 636, (Tex.Civ.App.) 1960, writ refused, n. r. e.; Mueller v. Banks, 332 S.W.2d 783, (Tex.Civ.App.) 1960, no writ history; Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508; Baxter v. Beaupre, 295 S.W.2d 718, (Tex.Civ.App.) 1956, no writ history; Schroeder v. Texas & Pacific Ry. Co., 243 S.W.2d 261, (Tex.Civ.App.) 1951, no writ history.

In support of their point of error, the appellants have cited the cases of Archer v. Skelly Oil Company, 314 S.W.2d 655 (Tex.Civ.App.), writ refused, n. r. e. in 159 Tex. 154, 317 S.W.2d 47; Whelan v. Manziel, 314 S.W.2d 126, (Tex.Civ.App.) and Mitchell v. Simms, 63 S.W.2d 371, (Tex.Com.App.). In all three of these cases the very point and issue was whether the oil, gas and mineral leases involved had been maintained in force as to all or part of the acreage covered thereby. In the instant case, the issue was not whether appellees’ oil, gas and mineral lease had been maintained in force, but whether appellees’ lease was ever effective to cover the interest appellants claimed in the 73)4 acre tract. Further, the undisputed evidence shows that appellants do not have the title to the undivided one-half mineral interest asserted by them. Under these circumstances, the question of whether appellees’ oil, gas and mineral lease has been maintained in force is immaterial. Canon v. Scott, 217 S.W. 429, (Tex.Civ.App.) 1920, no writ history, where, in a trespass to try title suit by a plaintiff seeking to recover a tract of land against an oil and gas lessee and others, the court held that if the plaintiff fails to establish his title, the question of whether the defendant’s oil, gas and mineral lease is valid is “wholly immaterial;” Niendorff v. Wood, 149 S.W.2d 161, (Tex.Civ.App.) 1941, writ refused.

Appellants’ point is overruled. Based on the record before us, we have concluded that the law controlling this case supports the contention of the appellees and that the judgment of the trial court should be affirmed.

Judgment affirmed.


author: BELL, Chief Justice.

text:
    MOTOR FINANCE COMPANY, Appellant, v. Patrice M. WOLFF, Appellee.
    No. 14482.
    Court of Civil Appeals of Texas. Houston.
    Feb. 11, 1965.

      Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellant.
    John H. Holloway, Houston, for appel-lee.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court overruling the plea of privilege of appellant to he sued in Bexar County, the county of its residence.

Plaintiff sued appellant, Renfro and Ren-fro, Adjusters, Inc., J. H. Hanie and Grover D. Renfro, in the District Court of Harris County. All defendants except appellant were alleged to he residents of Harris County. The suit was one to recover damages for the alleged conversion of an automobile in Harris County alleged to belong to plaintiff. The basis of the suit was the contention that appellant was the holder of a note for the purchase price of the automobile, which was secured by a chattel mortgage and that appellant through the other defendants as its agents repossessed the automobile at a time when she was not in default in payments on the note. Too, it was asserted that appellant authorized the other defendants to hold the vehicle until their charge for collection of the balance unpaid and for repossessing the vehicle had been paid. Damages were also sought for the days appellee was deprived of the use of the automobile. Additionally," it was alleged that the automobile was damaged while in possession of the defendants, the damage resulting from a broken window and transmission.

. Appellant first urges there was no evidence to show appellee owned the automobile because the certificate of title was in the name of-Billy B. Pennington. The evidence shows that Pennington was the former step-father of appellee. She and he went to the place of business of Damon and-: Al’s. in San Antonio. Appellee testified she bought, the .car and it was put in the name of Pennington because she was then involved in a divorce suit with her husband, from whom she was subsequently divorced. Only Pennington signed the note and chattel mortgage. At the time she was living-with her mother at Bandera, Texas. Pennington was living at Mesquite, Texas. The certificate of title, chattel mortgage and appellant’s ledger sheet show his address as c/o Patricia M. Murphy (appel-lee’s married name at the time of the transaction), Box 372, Bandera, Texas. The ledger sheet also showed Pennington’s residence as 5111 Jet Lane, Mesquite. Appel-lee testified she made all of the payments on the automobile. At the time of trial she had not had the certificate of title transferred to her name. The appellant’s ledger sheet also showed a change in the name of the account to appellee at an address in Pasadena, Texas.

While the certificate of title in the name of Pennington creates a presumption of ownership in him, this may be overcome by evidence showing that in fact the ownership is elsewhere. Such presumption is not evidence but is an administrative presumption. American Employers Ins. Co. v. Zablosky, 5 Cir., 292 F.2d 412. In the cited case the trial court found as a fact that title was in the record owner and thus did not choose to believe the evidence to the contrary. In this case the trial court chose to believe the testimony evidencing title in appellee. We hold there is sufficient evidence of probative force sustaining the trial court’s implied finding of ownership in appellee.

Appellant next contends there is no evidence to support the trial court’s implied finding that a conversion was established. Though in its argument under this point of error- in its original brief appellant again urges the want of proof of ownership in appellqe, in a supplemental brief the argument is . presented that no conversion is . shown because, the testimony shows the. note was in default at the time of repossession and - the chattel mortgage gave the right of repossession. The point of error in the original brief is broad enough to encompass the argument contained in the supplemental brief.

We have concluded appellant is correct. Appellee’s own testimony showed the last installment on the note was due September 12, 1963, and the automobile was repossessed September 17, 1963. She seeks to excuse non-payment by asserting, by evidence but not by pleading, waiver of timely payment by appellant because of its having previously received payments late. It does appear that about two payments were made late and accepted by appellant. The evidence shows no agreement based on consideration authorizing late payments to be made in the future. The chattel mortgage (the note is not in evidence) provides that upon default in paying any installment all installments are thereby matured. This being true, upon original default the whole became due. The acceptance of the two intervening late payments does not constitute a waiver. In fact, the chattel mortgage itself provides such shall not constitute waiver. Fischer v. Wood, 119 S.W.2d 114 (Tex.Civ.App.), writ dism.

It is contended by appellee, however, that it was wrongful to hold the automobile until the collection charge and storage fee had been paid to Renfro and Renfro. The chattel mortgage expressly provides it shall cover all collection costs.

We are of the view, however, that the trial court’s action should be sustained under Subdivision 4 of Article 1995, Vernon’s Ann.Tex.St. Appellee has sufficiently proven a cause of action against a resident defendant and has alleged against appellant, the non-resident, a joint cause of action and one so intimately connected with the cause of action against the resident defendant as to make the two properly join-able. Alice Medical and Surgical Clinic et al. v. Barker, 350 S.W.2d 587 (Tex.Civ.App.), no writ hist., and authorities there cited.

Here appellee alleged that the automobile was in the driveway of her home and it was in undamaged condition except for a dent in the side; that it was taken without her knowledge or consent and when she recovered it from Renfro and Renfro, Adjusters, Inc. it was damaged. She testified to the above facts and stated the damage consisted of a broken window on the driver’s side and that the transmission was damaged, so that the gears could not be shifted as they should. She further testified the value immediately before repossession was Three or Four Hundred Dollars and afterward was from Thirty Five to Fifty Dollars. The evidence showed appellant had authorized Renfro and Renfro to take possession. We need not here determine as a fact whether they were agents or independent contractors. Appellee alleges they were agents. While it is not shown how the damage was done, and there would be liability only in case of negligence, we think when it is shown that one, situated as was Renfro and Renfro, had possession of the vehicle, and it was returned in a damaged condition, negligence is presumed. The mortgage in possession is under a duty to use ordinary care in taking care of the property pending foreclosure. We think the rule is comparable to that of a bailee where it is held that negligence is presumed where the chattel is returned to the bailor in damaged condition. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157.

The judgment of the trial court is affirmed.