author: NYE, Justice.

text:
    Nathan FLOWERS, Appellant, v. Elo BAUER, Appellee.
    No. 120.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 16, 1965.
    Ronald Smallwood, Karnes City,' for appellant.
    Miller & Vollentine and Henry H. Vol-lentine, Gonzales, for appellee.
   NYE, Justice.

This is an appeal from a will contest. Appellee, Elo Bauer, was proponent of the Last Will and Testament of Felix Flowers, deceased, in the county probate court of Gonzales County, Texas. Nathan Flowers, appellant, was the contestant in both the county and district courts. The county court admitted the will to probate rendering judgment on November 6, 1963. Appellant gave notice of appeal, requested the county clerk to prepare a transcript in accordance with the provisions of Rule 336, Texas Rules of Civil Procedure,, and designated the instruments to be included in the transcript. The final judgment was not one of the instruments designated. Appel-lee did not direct the county clerk to include any additional portions of the proceedings to be included in the transcript. The appeal bond was filed and approved on November 19, 1963. The bond expressly states that a final judgment was signed admitting to probate the document in question by the proponent, appellee, as the Last Will and Testament of Felix Flowers, deceased. The transcript was certified by the county clerk and was filed in the 25th Judicial District Court in and for Gonzales County, Texas, on November 21, 1963.

The case was tried de novo in the district court before a jury which rendered a verdict in favor of the proponent of the will, the appellee herein, thus affirming the action of the county probate court. Following the return of the verdict, appellee discovered that the original or certified copy of the judgment of the county court was not included in the transcript. He immediately filed a motion with the district court for permission to file a supplemental transcript to include a certified copy of the judgment rendered in the probate court. The motion was granted on May 27, 1964, and such supplemental transcript, including the certified copy of the judgment, was filed with the district clerk the next day, on May 28, 1964. The judgment in the district court, based on the jury verdict, was signed and rendered on June 25, 1964. Appeal was then perfected to the Court of Civil Appeals.

The sole question here presented for determination by this Court is the jurisdiction of the district court to try the case and render judgment therein. Appellant contends that since the original or certified copy of the county court judgment was not included in the original transcript and not filed in the district court until more than six months after rendition and entry in the county court, the district court was without jurisdiction to try the case and render judgment therein. In effect, appellant argues that without including the judgment of the county court in the original transcript, there was no transcript at all and, therefore, the transcript was not filed within thirty days after the county court judgment in compliance with Rule 336, T.R.C.P.

Appellant does not complain that the trial court abused its discretion in granting the motion to supplement the transcript of the proceedings in the probate court, nor does he contend that any harm or injury was caused to him by the granting of the motion by the trial court which would amount to an abuse of discretion by the district trial court.

Rule 336, as amended, and effective September 1, 1962, provides that the party desiring to appeal from the county court shall file with the clerk within ten days a written direction as to matters which he deems necessary to a review of the county court ruling to be included in a transcript. Within five days after receipt of such direction any other interested party may also file a written direction to include in the transcript additional portions of the proceedings. The rule goes on and states that the appealing party shall file such transcript with the clerk of the district court within thirty days from the date of the rendition of the judgment appealed from.

Finally, the rule provides:

“Defects or irregularities in the procedure incident to the appeal, either of form or substance, may be corrected or amended after the record has been filed, and reasonable time to do so shall be allowed by the district court, but no enlargement of time for filing the record except as contemplated by this rule, nor enlargement of time prohibited by Rule 5, shall be allowed.”

Appellant cites two cases which can be distinguished on their facts. In Church v. Crites, 370 S.W.2d 419, Tex.Civ.App., 1963, ref., n. r. e., no transcript at all was filed until fifty four days after entry of judgment in the county court. The late filing of such transcript without an extension of time for good cause shown, was jurisdictional and, therefore, the district court could not entertain the appeal. In Buford v. Baldwin, 287 S.W.2d 301, Tex.Civ.App. 1956, the transcript in the Court of Civil Appeals did not reveal that the original papers in the case from the county court were ever filed in the district court. This irregularity was called to the attention of the appellant with instructions to his counsel that if the appeal had been properly perfected (evidenced by the original papers filed in a transcript from the county court to the district court) appellant would be given ten additional days after submission in the Court of Civil Appeals to file a supplemental transcript to perfect the record. Appellant did not, or was not able to comply with this opportunity. The Court of Civil Appeals held' that, without a showing that a transcript from the county court had been filed in the district court, the district court did not have jurisdiction except to dismiss the appeal. In the case before us the record before us shows that the transcript was filed in the district court (although defective) within thirty days after rendition of judgment in the probate court. We hold that this- was sufficient to confer jurisdiction on the district court.

In the case of Mullins v. Mullins, 348 S.W.2d 69, Tex.Civ.App.1961, ref., n. r. e., a will contest case, the transcript from the county court was timely filed in the district court, but neither an original nor a copy of the judgment was included in the transcript. After thirty days had expired, the contestant tendered and filed a certified copy of the missing judgment. However, the district court ordered the appeal dismissed for want of jurisdiction because the transcript did not include the judgment of the probate court. The El Paso Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a trial on its merits. This case was decided before Rule 336, T.R.C.P. (above cited) was amended. Chief Justice Langdon, speaking for the Court, stated:

“We believe the principles announced by Rules 437, 481 and 504 are applicable to appeals to the district courts; and, while it is true that no comparable rules have been adopted which specifically authorize or require the judge of a district court to allow a reasonable time for correcting irregularities in the appeal, before affirming, reversing or dismissing an appeal for such defects or irregularities; nevertheless, we believe the district court not only has such power, but a duty to exercise it, provided the court makes no enlargement of the time prohibited by Rule 5 or Rule 336. * * *
“ * * * The County Clerk did file a transcript of the County Court proceedings (although defective) in the District Court, within the time provided by the Rules. This, we believe, was sufficient to confer jurisdiction on the District Court.”

It does not appear to us that the courts have intended to deprive a litigant of his right to be heard on appeal by reason of a defect or omission from the record, if such defect can be remedied or such omission can be supplied without delay of the judicial process, or without harm to opposing parties. See Rules 437, 481 and 504, T.R.C.P., and cases cited thereunder. The higher courts have not been hesitant in resorting to these rules to permit amendments to transcripts to provide what otherwise could be serious omissions. See Buford v. Baldwin, supra; Polis v. Alford, Tex.Civ.App., 267 S.W.2d 918. The Supreme Court of Texas, in a case where the transcript was not filed in the form required by the then Rule 334, T.R.C.P. (before the amendment) held that there was a sufficient compliance with the rule and the irregularity should not serve to prevent petitioners from having their “day in Court”. Jones v. Jones, 156 Tex. 287, 296 S.W.2d 237 (1956).

We hold that the filing of the transcript within the thirty-day period as provided in Rule 336, T.R.C.P., is the act necessary under the facts before us, to confer jurisdiction on the district court. The trial judge was authorized to permit a supplemental transcript to be filed where the omission can be supplied without delay of the judicial process or harm to the opposing parties.

Appellant’s point is overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Shirley BRAKEFIELD et al., Appellants, v. George H. ANDERSON et al., Appellees.
    No. 14592.
    Court of Civil Appeals of Texas. Houston.
    Sept. 23, 1965.
    Rehearing Denied Oct. 14, 1965.
    Dollahon & de Ybarrondo, Willard E. Dollahon, Houston, for appellants.
    James F. Warren, Houston, for appellee George H. Anderson.
    Jack Harrison, Alvin, Raymond L. Mc-Dermott, Mabel Grey Howell, Houston, for appellees Bill Hue Romoser, Marvin Ellis and City of Pearland.
   COLEMAN, Justice.

This is a suit for damages sustained in an automobile collision. Based on the answers made by the jury to special issues, the trial court entered a judgment for the plaintiffs.

The first assignment of error complains of the submission of certain special issues, which, it is contended, were not raised by the pleadings. Other issues clearly raised by the pleadings were submitted, and were answered by the jury in such manner as to impose liability on appellant. The error, if any, in submitting these issues would not require reversal of the case. Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; Panhandle & Santa Fe Railway Co. v. Walker, Tex.Civ.App.1963, 364 S.W.2d 433, writ ref., n.r.e.

The second point of error complains of thirty-nine of the special issues submitted to the jury because the findings had no support in the evidence, or there was insufficient evidence to support same, or the jury’s findings thereto were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In the brief submitted to this Court appellant sets out generally what is termed “Appellant’s Version of the Accident” followed by the names of the witnesses supporting this version with a reference to the pages in the statement of facts where the testimony of each witness can be found. Appellee’s version of the accident is then set out and the court is referred to certain pages in the statement of facts where the testimony of the witnesses supporting this version can be found.

An assignment of error was set out in the motion for new trial in substantially the same wording. This assignment is so general as to point out no specific error to the trial court. There was not substantial compliance with Rules 320, 321, 322 and 374, Texas Rules of Civil Procedure. As a result the- point of error based thereon cannot be considered by this Court. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

While this point of error is general and multifarious, the argument under the point in appellant’s brief appears to limit its scope to the question of preponderance of the evidence. In deference to able counsel for appellant, we have reviewed the statement of facts and find that the evidence properly supports the verdict of the jury.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Mary Virginia MASCORRO et al., Appellants, v. CITY OF VICTORIA, Appellee.
    No. 4410.
    Court of Civil Appeals of Texas. Waco.
    Sept. 16, 1965.
    Rehearing Denied Oct. 7, 1965.
    Arthur L. Lapham, Victoria, for appellant.
    M. L. Null, Proctor, Houchins, Anderson, Smith & Null, Victoria, for appellee.
   McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a personal injury case.

Salvador Mascorro, individually and as next friend for his minor daughter Mary Virginia Mascorro brought suit against the City of Victoria for personal injuries sustained by the minor child while riding a roller coaster operated by the city.

Trial was to a jury which acquitted defendant of negligence and found that the minor plaintiff voluntarily subjected herself to the danger involved. The trial court entered judgment on such verdict that plaintiffs take nothing.

Plaintiffs, on January 20, 1965, filed motion for new trial contending error in the charge of the court, and jury misconduct.

Plaintiff Salvador Mascorro, individually and as father and next friend of Mary Virginia Mascorro, on January 22, 1965' filed motion in the trial court asserting: “It appears now there is no question but that there will be a conflict of interest between Salvador Mascorro and his daughter Mary Virginia Mascorro,” and prayed the court to appoint an attorney ad litem to represent Mary Virginia for the purposes of the motion for new trial and for an appeal if the trial court should not grant a new trial.

Motion for new trial was overruled by operation of law on March 8, 1965; and on April 2, 1965 the trial court entered an order refusing to appoint an attorney ad litem to represent Mary Virginia Mascorro, to which action of the court Mary Virginia Mascorro excepted.

Plaintiffs appeal on 1 point of error: “In the failure of the trial court to appoint a guardian ad litem for the minor plaintiff, Mary Virginia Mascorro, after the next friend stated to the court that his interests were in conflict with the minor’s interest, and further, that the next friend would no longer represent her.”

No statement of facts has been filed.

Plaintiff did not assign the asserted error in motion for new trial, and raises such for the first time on appeal. Plaintiffs’ grounds of error are restricted to the assignments set forth in motion for new trial; and points raised for the first time on appeal cannot be considered. See Rules 324 and 374, Texas Rules of Civil Procedure; City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746; 3 Tex.Jur.2d p. 460.

If the error complained of be deemed fundamental, and as such not necessary to assign in motion for new trial, plaintiff has brought forward no statement of facts from which it might be determined whether or not the next friend’s interests were in fact in conflict with the minor’s interest.

Affirmed.


author: WILSON, Justice.

text:
    C. C. CARSNER, Sr., Appellant, v. WELEX COMPANY, Appellee.
    No. 4415.
    Court of Civil Appeals of Texas. Waeo.
    Sept. 16, 1965.
    Rehearing Denied Oct. 7, 1965.

      C. C. Carsner, Jr., Carsner & Carsner, Victoria, for appellant.
    James P. Ryan, Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellee.
   WILSON, Justice.

Lessor sued for rents, alleging lessee became a holdover tenant for a year after the expiration of the initial term, under a written lease agreement. Upon jury findings negativing lessor’s allegations, judgment was rendered for lessee. We affirm.

The jury answered “no” to the issue, submitted without objection, inquiring whether lessee “continued to hold possession” of the demised premises after the term, “and to house materials belonging to it in said building.” There is adequate evidence to support the answer, contrary to lessor’s contention.

Complaint is made that an issue as to lessor’s election after notice of lessee’s holding over, submitted conditionally upon an affirmative answer to that quoted above, presented a question of law. The negative answer to the quoted issue made immaterial the issue conditionally submitted. Adkins v. Texas & P. Ry. Co., Tex.Civ.App., 233 S.W.2d 956, writ ref. Errors in immaterial issues are harmless. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165, 68 A.L.R.2d 1062.

Lessor asks reversal because three other issues call for construction of the lease contract by the jury. These were answered favorably to lessor, and he may not, therefore, complain. Young v. Texas & P. Ry. Co., Tex.Civ.App., 347 S.W.2d 345; Cogbill v. Martin, Tex.Civ.App., 308 S.W.2d 269. All points are overruled. Affirmed.


author: MOORE, Justice.

text:
    SAFEWAY STORES INCORPORATED, Appellant, v. Sam BOZEMAN, Appellee.
    No. 128.
    Court of Civil Appeals of Texas. Tyler.
    Sept. 16, 1965.
    Rehearing Denied Oct. 14, 1965.

      Herbert Boyland, Kenley & Boyland, Longview, for appellant.
    Rex Houston, Wellborn & Houston, Henderson, for appellee.
   MOORE, Justice.

Appellee Sam Bozeman brought this suit for damages against Safeway Stores Incorporated and Rudolph Wallesch, its store manager, for injuries sustained by his wife, Juliette Bozeman, when she slipped and fell in Safeway’s grocery store located in Henderson, Texas on the 4th day of January, 1961. Trial to a jury resulted in a verdict for appellee for $15,650.00. The court rendered judgment against Safeway and dismissed Rudolph Wallesch from the suit. From the judgment entered against it, Safeway Stores Incorporated has perfected this appeal.

In response to the special issues submitted by the court, the jury found that at the time Mrs. Bozeman entered the store, she was an invitee; that at the place where she slipped and fell, there was an oil and wax substance upon the floor; that such oil and wax substance created a slick place on the •floor; that such oil and wax substance was placed on the floor by Safeway’s employees in waxing and buffing the floor; that such substance had been on the floor for a sufficient period of time that Safeway Stores and its employees, in the exercise of ordinary care, should have known of same; Safeway and its employees failed to remove the oily and waxy substance from the floor prior to the time Mrs. Bozeman slipped and fell; that such failure was negligence and a proximate cause of her injuries; that Safeway and its employees failed to properly inspect the floor at the point where Mrs. Bozeman fell and that such failure was a proximate cause of her injuries; that Safeway and its employees failed to warn Mrs. Bozeman of the presence of the oil and wax substance and that such failure was negligence and a proximate cause of her injuries. The jury assessed damages in the amount of $15,000.00 for personal injuries and $650.00 medical expenses. The jury further found that the condition of the floor was not open and obvious, and that she did not voluntarily expose herself to the danger, nor fail to keep a proper lookout.

Appellant made a motion for judgment notwithstanding the verdict and a motion for new trial, each of which was overruled by the trial court, and thereafter perfected this appeal assigning 25 points of error. The points of error pose four basic questions, which are grouped and briefed as follows: (1) lack of evidence showing negligence on the part of appellant; (2) error of the court in receiving evidence that others had fallen in the store; (3) lack of evidence showing duty; and (4) error of the trial court in instructing the jury that they could consider the value of diminished earning capacity of Mrs. Bozeman in awarding damages and as a result the damages were excessive.

The evidence shows that the floor of the' appellant’s store was constructed of either inlaid or asphalt linoleum. Traditionally, it had been the practice of the employees of the store to clean the floor each Saturday night after the store had been closed. In the process of cleaning the floor, it first was scrubbed with water and detergents, following which the employees used a machine to scrubb off any accumulations of old wax and dirt. After this had been completed, a solution of wax and water was applied by the use of a mop. The amount of water used in the solution determined the amount of wax applied to the floor and whether the wax would cake upon the floor so that it would be slick. After the application of the wax and water, the floor was then allowed to dry over Saturday night and Sunday and on the following Monday morning, the floor was buffed in order to make a high gloss. This same procedure was followed on the Saturday night preceding Mrs. Bozeman’s injury; however, on this particular occasion the store remained closed on the following Monday (January 2nd) because of the New Year holiday. Tuesday, January 3rd, was the first day the store had been open for business after the application of the wax on the previous Saturday night. The employees who regularly did the buffing were off duty when the store opened on Tuesday and Mr. Wallesch and his assistant buffed the floor. On the remaining days of the week, it was the practice to apply a sweeping compound containing a light oil base and then to sweep the floor with a broom or mop after which it was buffed. The same procedure was followed on Wednesday morning, January 4th, prior to Mrs. Bozeman’s fall.

Mrs. Bozeman, who was 60 years of age, testified that on the day of her fall she had entered the store for the purpose of purchasing groceries. According to her testimony, she had been a frequent visitor in the store and had never had any previous trouble in walking on the floor, and on the occasion of this visit noticed nothing out of the ordinary.

Upon entering the store she testified that she was walking in a normal manner, wearing leather shoes with a three-fourth-inch heel. After she had walked a distance of approximately six to eight feet, she said she felt her left foot suddenly slip forward on something which was very slick, causing her to fall to the floor with great force, with the weight of her body falling upon her right leg and ankle and that she immediately suffered severe pain in her right leg, ankle and hips. She further testified that neither before nor after she fell did she notice any debris or any other type of foreign object upon the floor, nor could she detect any dampness; however, she said that she felt of the floor at the place of her fall and it was “slick as glass.” After she had fallen, Mr. Wallesch, the store manager, came to her aid and after a brief discussion with her he summoned an ambulance and she was immediately confined to the hospital.

In addition to verifying the facts set forth hereinabove relating to the manner of maintenance of the floor, Mr. Wallesch testified that he went to Mrs. Bozeman immediately after she had fallen and found her on the floor in a sitting position. Her hose were torn and her ankle was skinned and bleeding. After a brief conversation with her, he directed one of the employees to call an ambulance. He testified that he made an inspection of the floor, but failed to find any debris or any other foreign object on the floor which could have caused her to fall; however, he testified that he did find a 14- to 16-inch skid mark on the floor where her shoe had slipped. The skid mark, he testified, went through the wax and oil on the floor. On being questioned with regard to the slippery quality of the material which had been applied to the floor, he testified that if the floor sweeping compound containing the oil base was applied upon the waxed floor in excessive amounts, it would cause the floor to be slick and he also testified that if an excessive amount of wax was placed in the wax-water solution used in waxing the floor it would cause the wax to cake and thus cause a slick place on the floor. Over the objection of the appellant, he was permitted to testify that on two previous occasions he himself had slipped and fallen upon the floor and that he had also received reports of others who had fallen in the store, although not at the same place Mrs. Bozeman fell.

Mr. Bozeman testified that immediately after Mrs. Bozeman had fallen in the store the store manager called him and advised him that she had been injured in a fall in the store and had been sent to the hospital in an ambulance; that upon receipt of this information he immediately went to the hospital where he found her in the emergency room, and while there he observed her left shoe and found an oily, slick substance on the sole and heel; that upon examining the substance with his hands, it was slick and it appeared to be a dirty brown kind of wax.

Appellee produced medical testimony showing that as a result of the fall Mrs. Bozeman received a fractured distal of the lower one-third of the right fibula or the small bone which goes into the ankle. As a result of the fracture, it was necessary that her foot and leg be placed in a cast for a period of six weeks. She also received a contusion or a sprain of the right ankle joint, knee and hip, all of which injuries required her to be confined in the hospital for a period of approximately thirty days. Her physician testified that as a result of her injuries she had developed a traumatic arthritic type of condition which had caused partial disability and that it was his opinion that such condition was chronic and would be of long standing.

It is without dispute that at the time Mrs. Bozeman fell, she was an invitee on the premises. It is also without dispute that the appellant’s employees regularly applied a solution of wax and water upon the floor each Saturday night, and that on the following business days they regularly applied a sweeping compound containing a light oil base before buffing the floor. Appellant denies, however, that the application of wax and sweeping compound was improperly applied or caused the floor to become slick and dangerous.

The law in this state relative to the care to be exercised by a shopkeeper or a proprietor of a business is that the shopkeeper or proprietor is not an insurer of the safety of the premises, but that he is obligated to exercise reasonable care to keep the premises in a safe condition for his customers and others whom he invites to enter his premises. Liability may not be imposed by the mere fact that one falls and is injured in his place of business. Liability can be predicated only upon a showing that the shopkeeper or proprietor has been negligent and such negligence must be predicated upon what he should have anticipated and not merely what happened. Furthermore, he is charged with the duty to keep and maintain his premises, including the floors, in a reasonably safe condition, for those walking thereon, and to warn of any danger, known or imputable to him that may arise from the use rightfully made by an invitee. H. F. Hohlt Co. v. Routt, (Tex.Civ.App.), 48 S.W.2d 386; Russell v. Liggett Drug Co., (Tex.Civ.App.), 153 S.W.2d 231; Western Auto Supply Company v. Campbell, Tex., 373 S.W.2d 735; 40 Tex.Jur.2d, par. 72.

It is well settled that the waxing or oiling of floors by business houses, offices and shopkeepers is a necessary and customary practice, is not negligence per se. Rogers v. Collier, (Tex.Civ.App.), 223 S.W. 2d 560. A party injured by falling on a waxed floor must go further and establish negligence, either in the waxing and cleaning of the floor, or show that after it had been waxed or cleaned, the floor was left in a different condition than would have otherwise resulted from proper waxing or oiling, and that an unusual or dangerous condition was thus created and such condition had existed for a reasonable length of time as to charge the owner with knowledge thereof. Western Union Tel. Co. v. McDavitt, (Tex.Civ.App.), 257 S.W.2d 319; Barclay v. Montgomery-Ward & Co., (Tex.Civ.App.), 269 S.W.2d 445; Wagner v. Lone Star Gas Company, (Tex.Civ.App.), 346 S.W.2d 645; S. H. Kress & Co. v. Hall, (Tex.Civ.App.), 154 S.W.2d 278; S. H. Kress & Company v. Telford, (5th Cir.), 240 F.2d 70; 40 Tex.Jur.2d, par. 72, p. 565; Phelps v. Montgomery Ward & Co., 231 Mo.App. 595, 107 S.W.2d 939; First Federal Savings & Loan Ass’n v. Wylie, Fla., 46 So.2d 396; 63 A.L.R.2d 591.

There is, however, authority for the proposition that where a dangerous condition upon a floor is created by the servants and employees, a corporate defendant would have notice thereof as a matter of law and hence proof of knowledge thereof, either actual or constructive, is not necessary. The Fair, Inc. v. Preisach, (Tex.Civ.App.), 77 S.W.2d 725; Barclay v. Montgomery-Ward & Co., supra.

As we view the jury’s verdict, it amounts to a finding that the appellant’s employees applied an oil and wax substance to the floor which caused the floor to be slick, and that such substance had been on the floor long enough for the appellant and its employees to have known of it and their failure to remove the slick substance amounted to a failure to use ordinary care in the maintenance of the floor which was a proximate cause of the injury. In this connection, it will be noted that the finding that appellant applied wax or oil on the floor is not confined only to that which was applied on the Saturday night preceding the injury, but apparently applies as well to all previous occasions on. which the wax and oil were applied.

Appellant strenuously maintains that there was no evidence, or at least insufficient evidence, to show negligence on appellant’s part in the maintenance of the floor. The pleadings show that the gist of the cause of action against the appellant was based upon its failure to maintain the floor in a condition reasonably safe to accommodate its customers. The appellee’s proof, when viewed in a light most favorable to the verdict and judgment, shows that appellant’s employees consistently placed wax upon the floor and then treated it with a sweeping compound containing oil which caused the floor to be slick and that Mrs. Bozeman’s left shoe skidded a distance from 14 to 18 inches through a wax and oil substance which caused her to fall and that an oil and wax-like substance was found on her left shoe; that appellant had notice that the manner in which the floor was maintained caused it to be unusually slick and dangerous because Mr. Wallesch, the store manager, had himself fallen on the floor on two previous occasions and had received reports of others who had fallen on the floor; that the floor throughout the building had always been maintained in practically the same general condition. We believe this evidence and the other evidence hereinabove set forth would be sufficient, circumstantially at least, to create a fact issue for the jury to determine whether the appellant’s employees created a dangerous condition, of which they knew or should have known and whether their failure to take affirmative action to remove the dangerous condition or to warn the customers of such condition was negligencee and the proximate cause of the injury. It follows that the contention of the appellant that the judgment is not supported by the evidence, or is against the overwhelming weight and preponderance of the evidence, is not well-founded.

Appellant insists that the trial court erred in admitting testimony showing that the store manager had fallen upon the floor on two previous occasions, and that he had also had reports of others who fell because it was not shown that such were in the same place as where Mrs. Bozeman fell and were not shown to have occurred under substantially the same conditions. As we view the record, appellee’s complaint is not based solely upon negligence in applying the wax or oil in any specific place upon the floor, but is based upon the manner in which this was done and the manner in which the floor was traditionally kept and maintained throughout the store generally. According to appellee’s contention, the application of wax, followed by a daily application of an oily sweeping compound, created a dangerously slick floor generally which was an improper method of maintenance which, on several occasions, had caused others to slip and fall. Mr. Wallesch testified that he knew the floor was slippery and that he had observed the very same type of marks as those made by Mrs. Bozeman where other customers had fallen upon the floor. We think this evidence shows a substantial similarity of conditions.

Evidence of similar accidents from the same inanimate cause is admissible to prove that the common cause was dangerous or likely to cause such accidents; that the person responsible for it was aware of its dangerous character or tendency to cause such accidents; that it caused the accident in question. Brockman v. J. Weingarten, Inc., Tex.Civ.App., 115 S.W.2d 753, affirmed 134 Tex. 451, 135 S.W.2d 698.

Appellant’s Points 15 through 19 contend that as a matter of law the condition of the floor was open and obvious, and that Mrs. Bozeman voluntarily exposed herself to the risk and failed to keep a proper lookout, and in the alternative that the findings by the jury made to the contrary is against the overwhelming weight and preponderance of the evidence.

It is undeniable, of course, that the floor itself was open and obvious to Mrs. Boze-man, but it is not undeniable that the slippery or dangerous condition of the floor was open and obvious to her. The floor presented no appearance of danger on the surface. The testimony of the store manager shows that the condition of the floor could not have been ascertained without an inspection. The testimony of Mrs. Bozeman shows that she was walking slowly and making the usual observations made by any customer entering a store for the purpose of shopping.

The burden of proof was upon the appellant to establish the alleged contributory negligence as well as the defense of assumption to an open and obvious risk. There is nothing to show that Mrs. Bozeman either knew or should have known of the slippery condition of the floor and we discern nothing in the record raising the issue of assumption of the risk. Nor was her conduct on the occasion in question such that we can say, as a matter of law, that she was guilty of contributory negligence.

It is elementary that the question of contributory negligence is generally, by reason of the very nature of the defense, one of fact for the jury. In order that an act shall be deemed negligence per se, it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it. Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357.

The record does not compel the conclusion that Mrs. Bozeman was guilty of contributory negligence or that she assumed the risk of an open and obvious danger as a matter of law, nor can it be said that the jury’s verdict on these issues is against the overwhelming weight and preponderance of the evidence.

By the remaining Points 23, 24 and 25, the appellant complains of one of the instructions given by the court in connection with the issue on damages. The instruction in question is attacked because it authorizes the jury to consider elements of damages which, it is claimed, had no support in the evidence; viz., the past and future loss of earning capacity of Mrs. Bozeman. And because the jury was authorized to consider these elements, the damages assessed by it are attacked as being excessive.

In this connection, the evidence shows that Mrs. Bozeman had regularly assisted her husband in the operation of a service station since 1955. She kept the books, acted as cashier, made the bank deposits and otherwise assisted her husband in the operation of the business. She was confined for a period of approximately six weeks. After recovering from the fracture, she testified that she had been unable to perform some of her duties because of swelling and pain in her ankle. We believe this testimony was sufficient to raise an issue for the jury as to whether she had the capacity to work and earn money and whether, as a result of the injury, she suffered a loss in her earning capacity.

In addition, we think appellant waived the right to complain of the court’s charge in this respect.

Appellant’s objection to the instruction on diminished earning capacity was made on the ground that the instruction did not confine the jury’s deliberation to damages sustained by the plaintiffs as a result of the accident. It was not until appellant filed a motion for a new trial that the appellant complained of the insufficiency of the evidence to support the instruction.

Although Rule 279, Texas Rules of Civil Procedure provides that “A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.”, the quoted portion of the rule obviously has reference to those instances where there is no evidence to require or to justify the submission of a particular issue at all, and not to an instance such as this, where there was evidence to warrant submission of the issue but possibly none to warrant consideration of particular elements of damage which the charge authorized the jury to consider.

Objections to the court’s charge come too late when made for the first time after verdict. Rule 272, T.R.C.P.

If it was in fact the appellant’s purpose to object to the charge for the reason assigned in the motion for a new trial and now assigned on appeal, appellant failed to point out distinctly in the objection the grounds for the objection as required by Rule 274, T.R.C.P., and therefore waived the right to complain. Hicks v. Fredericks, (Tex.Civ.App.), 286 S.W.2d 315; Dallas Transit Company v. Tolbert, (Tex.Civ.App.), 337 S.W.2d 617.

By failing to object to the instruction authorizing the consideration of the elements of damages which are claimed to be without support in the evidence, appellant thereby waived the right to complain of excessive damages by reason thereof. Points 23, 24 and 25 are accordingly overruled.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: FANNING, Justice.

text:
    Johnny WELLS et ux., Appellants, v. Henry HARPER et al., Appellees.
    No. 7675.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 28, 1965.
    Hollie G. McClain, Gilmer, W. D. Brown, Quitman, for appellants.
    W. H. Frank Barnes, Terrell, for ap-pellees.
   FANNING, Justice.

Appellees, as plaintiffs, sued appellants and other named parties, as defendants, in trespass to try title to a 10.3 acre tract of land in Wood County, Texas, plead the 10 year statute of limitations and also sought a mandatory injunction to compel appellants Wells and wife to remove a fence Wells had constructed on the tract in controversy.

Trial was to the court with the aid of a jury. Special issues 1 and 2 and the jury’s responses thereto were as follows:

“SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence that the plaintiffs held peaceful and adverse possession of the entire tract of land described in Plaintiffs’ First Amended Original Petition, cultivating, using or enjoying the same for a period of ten consecutive years prior to January 16, 1964, the date this suit was filed: Answer ‘yes’ or ‘no.’
“ANSWER Yes
“If you have answered Special Issue No. 1 ‘yes’, and in that event only, then you will answer Special Issue No. 2.
“SPECIAL ISSUE NO. 2:
“Was the adverse possession and claim of the plaintiffs, if any you have found in answer to Special Issue No. 1, so open and notorious and unequivocal as to put a person of ordinary care and prudence in the same situation as the defendant, and under the facts and circumstances in this case, upon notice that the plaintiffs, were claiming and asserting title to all of the tract of land described in Plaintiffs’ First Amended Original Petition? Answer ‘yes’ or ‘no.’
ANSWER: Yes”

The trial court rendered judgment for plaintiff s-appellees for the title and possession of said land and ordered the removal of the fence in question within a reasonable time, not to exceed 60 days from the date of the judgment. Appellants’ amended motion for new trial was overruled and appellants Wells and wife have appealed.

Appellants present 9 points on appeal which are grouped and discussed together. By said points appellants contend to the effect that appellees went into possession of the tract in question in recognition of the owners’ title, that the burden was on ap-pellees to introduce evidence and bring home notice to the owners that their claim had changed from peaceful or permissive to hostile, that appellees failed to do so, failed to submit an issue to the jury and secure a finding that appellees brought home notice to appellants that the possession had changed from peaceful to hostile, that there was “no evidence” and “insufficient evidence” to submit the question of adverse possession to the jury, that there was “no evidence” and “insufficient evidence” to support the jury’s verdict that appellees ever claimed the land adversely to appellants, and that there was “no evidence” and “insufficient evidence” to show that appellees’ claim changed from peaceful to hostile.

Appellees reply thereto by 9 counterpoints, grouped and discussed together, wherein they contend to the effect that appellees did not go into possession of the tract of land involved in this suit in recognition of the owners’ title but went into and took possession because they had purchased the land from the owner, that the undisputed testimony shows that Henry Harper and his wife took possession of the land in question by reason of their purchase of same, and further shows that their claim to the same against all persons thereafter was sufficient to support the jury’s finding of adverse possession, that appel-lees’ possession and claim of the land in question being based upon their purchase of said land, and they having used, occupied and enjoyed the same from 1916 or 1917 to the time of the filing of the suit in 1964 (about 47 or 48 years) were sufficient notice to all persons including appellants that their claim was hostile to appellants, that the evidence authorized the submission of adverse possession to the jury, and that there was evidence of probative force, and was amply sufficient, to support the findings of the jury, and that the evidence clearly shows and was sufficient to show that appellees’ claim to the land in question was hostile to all other persons.

Plaintiff s-appellees produced testimony to the effect that in 1916 or 1917, Henry Harper, a young negro man with a wife and two or three children, bought the tract of land involved in this lawsuit from G. W. Lipscomb, that pursuant to said purchase Henry and his family moved onto the land, that at the time of the purchase Lipscomb took Henry Harper to the land, showed it to him, showed him where the corners and boundary lines were, that after Henry and his family moved upon the tract of land, they made improvements consisting of adding to a small two room house on said land, building a three-wire fence on the designated lines around the land, dug a well on the land, and making other improvements and doing other things to put the land in cultivation and livable condition, that they- raised their family there including additional children who were born on said place, that Henry Harper and his wife, and children, continued to live on, use, occupy, enjoy, farm, cultivate, pasture, pay taxes on, and claim said land from the time they moved on it in 1916 or 1917 until the time of the filing of this suit in 1964, that Henry Harper’s first wife died in 1959 and he re-married in 1962 at which time he moved off of the tract of land and left one of his children, one of the appellees herein, living in the house from which he had moved, that all during this time plaintiffs-appellees had possession of said 10.3 acre tract, that it was enclosed by good and substantial fences, that they made various crops on it throughout all the years and also pastured portions of same, and facts were related which would show that Henry Harper and his family had adverse possession of said land for a period of about 47 years continuous uninterrupted possession, that no question was ever raised about appellees’ ownership of the land by anyone until the fall of 1963, when the appellant Johnny Wells, without the consent of appellees and over their protest went upon said land and constructed a four-strand barbed wire fence in an easterly-westerly direction across said land, cutting off approximately 4.6 acres off of the south side of the 10.3 acre tract.

Neither party showed a record title to the tract of land in question. Appellants introduced in evidence a deed, dated Oct. 29, 1940, from G. W. Lipscomb to Henry Harper, reciting a cash consideration of $20.00, and the creation of six vendor’s lien notes, five for $50.00 each and the last for $30.00, payable in 1941-2-3-4-5 and 6, respectively. Appellants say that this deed describes the tract in litigation- — appellees say that it does not correctly describe the land in litigation and that if it did they would introduce the deed in evidence and rely up on it themselves. Appellees’ surveyor witness testified to the effect that this deed does not describe the land in controversy. It is thus appellees’ position that since their deed or deeds do not correctly describe the land in litigation they must rely upon title by adverse possession. We agree with appellees that the 1940 deed in question does not correctly describe the tract in litigation here.

For a comprehensive discussion of the law applicable to the determination of “no evidence” and “insufficient evidence” points see Chief Justice Calvert’s article “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

As we view the record there is no evidence of probative force to the effect that Henry Harper took possession of the land in litigation as a tenant of G. W. Lipscomb or anyone else, or that he took possession in recognition of title in anyone other than himself as the owner. There is also no testimony in the record that Henry Harper ever rented the land from Lipscomb or anyone else or that he ever paid any rents to anyone. The evidence is amply sufficient to show that Henry Harper took possession of said land in 1916 or 1917, claiming to be the owner of said land, and that he cultivated, pastured, used and enjoyed it, making improvements thereon, paying taxes thereon and claiming it as his own, adversely to the world, and that his possession was not interfered with by anyone until defendant Johnny Wells constructed a fence upon said land in 1963.

After carefully considering the record in this case it is our holding that there was ample evidence of probative force to support the jury’s findings on special issues 1 and 2, to the effect that plaintiffs held peaceable and adverse possession of the tract in litigation for a period of 10 consecutive years prior to Jan. 16, 1964, the date the suit was filed, and that such possession was so open and notorious and unequivocal as to put a person of ordinary care and prudence in the same situation as the defendants, and under the facts and circumstances in the case, upon notice that the plaintiffs were claiming and asserting title to all of the tract of land sued for by plaintiffs. In this connection see the following authorities: Mills v. Vinson, Tex.Civ.App., 342 S.W.2d 33, wr. ref., n. r. e (1960); Rae v. Baker, Tex. Civ.App., 38 S.W.2d 366, writ refused (1931); Krause v. Hardin, Tex.Civ.App., 222 S.W. 310, writ dism. (1920); Major v. Meyers, Tex.Civ.App., 111 S.W.2d 1184, no writ (1937); Chittim v. Auld, Tex.Civ.App., 219 S.W.2d.702, wr. ref., n. r. e., (1949).

We hold that the evidence was amply sufficient to support the jury’s findings to special issues 1 and 2.

We further hold that there was evidence of probative force and that the same was amply sufficient to show that plaintiffs’ claims to the land in controversy were adverse and hostile to all persons (including appellants) except to themselves.

It is our further view that the 1940 deed in question from Lipscomb to Harper, introduced in evidence by appellants, does not in any way defeat appellees’ title to the tract in question. There was ample evidence of probative force to sufficiently support the view that appellees from 1916 or 1917 up to 1940, a period of 24 or 23 years, had already acquired title to the tract in litigation here by adverse possession under the 10 year statute, and since the title had already matured in appellees before 1940, the 1940 deed in question from Lipscomb to Harper (even If it correctly described the land in controversy — which we find it did not) could not divest appellees of their valid limitation title already consummated. In this connection see Republic National Bank of Dallas v. Stetson et ux., Tex.Sup. Ct., 390 S.W.2d 257 (1965) wherein it was stated in part as follows:

“A limitation title once consummated, is as full and absolute as any other perfect title, and it is not lost by a subsequent oral statement by the limitation owner that he never intended to claim by limitations. Jobe v. Osborne, 128 Tex. 509, 97 S.W.2d 939 (1936); Bruce v. Washington, 80 Tex. 368, 15 S.W. 1104 (1891); 2 C.J.S. Adverse Possession § 208, p. 807. A written acknowledgment of tenancy by one who has perfected title is also ineffective to divest a limitation title. The precise point was faced in Franklin v. Smith, 265 S.W. 715 (Tex.Civ.App.1924, writ ref.), the court writing:
‘ * * * appellant contends that since it was shown by the undisputed evidence -that on the 21st day of September, 1914, appellee Smith executed an instrument whereby he acknowledged that he was a tenant of those owning the record title to the land he now claims by limitation, and since it was shown that appellee’s wife had thereafter contracted with such owner to purchase a part of said land, appellee Smith is estopped from claiming title by limitation.
‘We think an answer to the two propositions is: * * and, second, that it having been shown that appellee Smith had perfected his title by limitation prior to the execution of the acknowledgment of tenancy, and pri- or to the proposed purchase by his wife, such acknowledgment and proposed purchase would not affect the title so acquired by limitation. Such acts on the part of Smith and wife could not serve to destroy their title theretofore acquired and perfected by limitation. Limitation title, like all other sorts of titles, cannot be defeated by a mere gratuitous acknowledgment that takes place subsequent to its acquisition.’ ”

All of appellants* points are overruled. The judgment of the trial court is affirmed.

Affirmed.


text:
    William E. GENTRY, Appellant, v. Ann GENTRY, Appellee.
    No. 126.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    Rehearing Denied Oct. 21, 1965.

      Jack E. A. White, of North, Blackmon & White, Corpus Christi, for appellant.
    Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellee.
   NYE, Justice.

A decree of divorce was granted to ap-pellee, Ann Gentry. The husband, William E. Gentry, appeals, contending in only one point that the appellee has wholly failed to prove by full, clear and satisfactory evidence that the husband had been guilty of such cruel treatment toward her as to render the marriage insupportable.

The parties to this action were married in 1939 and lived together as husband and wife continuously, except for a separation in 1958. A suit for divorce was filed by the wife at that time but was subsequently dismissed upon a reconciliation by the parties after approximately six months. Three sons were born to the parties, ranging in age from twelve to eighteen years. In August of 1963, the wife brought this suit for divorce and moved out of the family home, leaving the three children with .the husband. Later, there was an agreement concerning the custody and visitation rights of the children and no complaint was raised on appeal as to a division of the property or to the custody of the children.

This case first came on to trial on the afternoon of March 11, 1964. Testimony was heard by the court from the two parties, the husband under the adverse party rule. The case was recessed until the afternoon of May 7, 1964, when the testimony was completed. Judgment was signed and rendered granting plaintiff her divorce on June 19, 1964. In response to the request of the husband for findings of fact and conclusions of law, the court found that the husband was guilty of excesses, cruel treatment and outrages toward the wife, of such a nature as to render their living together insupportable, and that the wife was not guilty of any conduct bringing about or causing such cruel treatment. The court concluded that the wife should be granted a divorce.

The rule generally applicable in divorce cases authorizes the granting of divorces only when the evidence is “full and satisfactory,” and this limitation must be observed by both the trial and appellate courts in order to permit a decree to stand. Our Supreme Court held many years ago that the discretion of the trial judge in a divorce case should be subject to review by the appellate court. Jernigan v. Jernigan (1872) 37 Tex. 420, 421. See also Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709, 711.

Where the evidence is conflicting we have no authority to pass upon the credibility of witnesses, but it is our duty to “determine as to the quality of the evidence” to make certain that the evidence upon which a decree of divorce is granted is “full and satisfactory.” Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228. See also Mortensen v. Mortensen, Tex.Civ. App., 186 S.W.2d 297; Moon v. Moon, Tex.Civ.App., 186 S.W.2d 362.

The testimony of the acts or course of conduct complained of by the wife covered only about fourteen pages of the statement of facts. The evidence showed that the husband was jealous of her attentions toward their little boy. She implied that they had disagreed on occasions as to the type of medical treatment the children required. She testified that some of the conduct on the part of her husband caused her to be emotionally upset to such an extent that she became ill. But the only time that she mentions requiring a doctor was in 1958 when she had “something on the order of a nervous breakdown,” because she was in favor of the boys knowing how to hunt and fish and her husband would start a tirade about the fact that they did not need to know anything about hunting and fishing. She testified that it was not a matter of horsewhipping or anything like that. She said that their difficulty was just a lack of anything that “we had as the years went by, a lack of becoming closer.” She stated that the only decisions that he ever made, were to disagree with anything that she did. He would never make any decisions and she thought that a husband and father of three children has to make a certain amount of decisions. She testified as to some religious differences that they had.

The wife testified on cross examination that she became ill in 1963; that she had an ulcer brought on by emotional strain. She was working at the time, however such illness did not require her to take any time off from work. Quoting directly from the testimony, the attorney for the wife questioned her:

“Now, Ann, well you at this time, in your own words, your own way, tell the court why it was in August of last year you separated, and the reason for the separation and wanting a divorce?
“A: Well, of course it is difficult to do so briefly, but I can say that from the time Mr. Gentry came home from service (World War II) when he told me he had grown up, he had to show he had grown up by disagreeing; almost continually disagreeing with everything I said and every suggestion I made, and down through the years so it has been until finally some six years ago, it came to the point I could no longer endure the emotional strain of living under those conditions. After the separation (1958) and finally going back together we have lived in the same house for the past six years, but again the situation has become so I can no longer live like that. We talked it over and both agreed on a separation and finalising it by divorce. That is why we separated and why I left home. It was a mutual thing. We talked that over and both agreed on it, and I want to point out there was no suggestion of desertion or abandonment, or anything like that.” (Emphasis supplied.)

None of the foregoing, which is a summary of nearly all of the wife’s complaints prior to their separation, even if taken as true, satisfy the “full and satisfactory” evidence necessary for a divorce. The matters complained of by the wife are at most disagreements which do not constitute sufficient basis for the disruption of the marriage relation. Hyatt v. Hyatt, Tex.Civ.App.1937, 111 S.W.2d 341; McCullough v. McCullough, Tex.Com.App., 1931, 120 Tex. 209, 36 S.W.2d 459; Burns v. Burns, Tex.Civ.App., 76 S.W.2d 821; Mayen v. Mayen, Tex.Civ.App., 177 S.W.2d 240; Rodriguez v. Rodriguez, Tex.Civ.App., 186 S.W.2d 88.

The wife admitted in her brief that she did not allege or attempt to prove any physical violence to her person on the part of the husband. Even if we assume that the wife was a highly sensitive person with sensitive feelings, there was no evidence in the record before us showing that the actions she complained of with respect to mental cruelty were studied, deliberate, willful or intended to injure her. Cruelty has been defined as the willful, persistent infliction of unnecessary suffering, whether in realization or apprehension, whether of mind or body, to such an extent as to render cohabitation dangerous and unendurable. The term comprehends conduct endangering life, limb or health or productive of mental anguish, and conduct of a nature utterly destructive of the purpose and object of the marital relationship. 3 Spears Marital Rights in Texas, § 815, P. 130. While mental cruelty constitutes a ground for divorce, without proof of physical violence it must be established that such mental cruelty was inflicted willfully or intentionally. McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129; Buckner v. Buckner, Tex.Civ.App., 27 S.W.2d 311; Norvell v. Norvell, Tex.Civ.App., 194 S.W.2d 270; Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453; Bartels v. Bartels, Tex.Civ.App., 227 S.W.2d 260; Stevenson v. Stevenson, Tex.Civ.App.1964, 383 S.W.2d 92.

The undisputed testimony of both parties showed that the husband and wife had been married some twenty-five years and had been equally active as leaders in their church. The husband had been a leader in Little League baseball activities and was manager of a team in which the youngest boy had played for the past two years. There was no specific reason stated in the testimony by either party as to what caused the separation in 1963. The wife’s own mother testified that she had been taking care of the parties’ children for the past eight years. That she kept house, washed, ironed, cooked and mended clothes and was in their home nearly every day. The mother-in-law was called as a witness for the appellant husband, and was asked her opinion of Mr. Gentry as a father. She stated:

“Well, none of us are perfect, but I have never see one more perfect than he is. * * * ”

She testified to the effect that the appellant husband was a fine, Christian man, a good father, and that her daughter, the appellee, had made no complaints about him to her.

In each case the evidence must be examined in the light of the nature, object and importance of the marriage contract. Although the law regards marriage relation as based on civil contract, the interests of society, and the welfare of the children demand that such relation shall not be lightly regarded nor dissolved except for good and sufficient cause. 20 Tex.Jur.2d § 137, p. 479.

We have read the entire statement of facts and have concluded that the evidence in this case is insufficient as a matter of law to show cruel treatment under Article 4632, V.A.CS. This article provides inter alia, that the decree of divorce shall be rendered “upon full and satisfactory evidence.” The requirement of full and satisfactory proof is applicable in the Court of Civil Appeals as well as it is in the trial court. Christoph v. Sims, Tex.Civ.App., 234 S.W.2d 901, writ ref., n. r. e.; Mayen v. Mayen, supra.

This Court, not only has the power, but it is its duty to pass upon the issue of whether the evidence in the case is full and satisfactory. Gomez v. Gomez, Tex.Civ.App., 234 S.W.2d 941; Robinson v. Robinson, supra; Christen v. Christen, Tex.Civ. App., 333 S.W.2d 472, and authorities cited. Bell v. Bell, Tex.Civ.App., 389 S.W.2d 126.

“The rule in this state, as well as in others, is that parties cannot be divorced for incompatibility, or because they lived unhappily together, or merely because they possess unruly tempers, or for marital wranglings.” McNabb v. McNabb, supra, Hausladen v. Hausladen, Tex.Civ.App., 388 S.W.2d 952.

We hold that the wife wholly failed to establish by full and satisfactory evidence excesses, cruel treatment or outrages that would render living with the husband unendurable or intolerable. The evidence fell short of being “full and satisfactory” and was, therefore, insufficient to establish such cruel treatment as would constitute a statutory ground for divorce. Appellant’s point is sustained. Bradshaw v. Bradshaw, Tex.Civ.App., 293 S.W.2d 210; Allen v. Allen, Tex.Civ.App., 267 S.W.2d 911; Cantwell v. Cantwell, Tex.Civ.App., 217 S.W.2d 450; Golden v. Golden, Tex.Civ.App., 238 S.W.2d 619; Garcia v. Garcia, Tex.Civ.App., 185 S.W.2d 227.

For the reasons stated, the decree of the court below is reversed and judgment here rendered that appellee be denied a divorce.

Reversed and rendered.


author: COLLINGS, Justice.

text:
    OKAN PIPELINE COMPANY, Appellant, v. H. H. EILAND and A. E. Sumruld, Appellees.
    No. 3991.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 24, 1965.
    Rehearing Denied Oct. 15, 1965.

      O. Gordon Oldham, Tulsa, OkL, for appellant.
    J. Ray Martin, Amarillo, Rudy V. Ham-ric, Hamlin, Gene L. Dulaney, Snyder, for appellees.
   COLLINGS, Justice.

Okan Pipeline Company brought suit against Branson Construction Company, hereinafter referred to as Branson, H. H. Eiland and A. E. Sumruld, jointly and severally, to recover damages to plaintiff’s pipeline and loss of contents on land belonging to Eiland on which Sumruld was the surface tenant. The damage was alleged to have been sustained September 30, 1960, when Branson was employed by Eiland’s tenant, Sumruld, to excavate a trench silo. Trial was before the court without a jury which rendered judgment for Okan Pipeline Company against Branson alone, and denied any recovery against Eiland and Sumruld'. Okan Pipeline Company has appealed from that part of the judgment denying it recovery against Eiland and Sumruld.

Appellant presents 4 points of error in which it is contended that the court erred (1) in failing to find that both Eiland and Sumruld were liable for the claimed breach of their respective contracts with appellant containing express covenants not to obstruct or permit obstruction of the pipeline in question, (2) erred in failing to find that both appellees were liable to appellant because they participated in the commission of a trespass, in that, they had constructive and actual knowledge of the location of the pipeline and negligently failed to warn Branson of the location thereof, (3) erred in admitting claimed hearsay testimony of Sumruld’s sons to the effect that they warned Branson’s employee, who was engaging in excavating the trench silo, of the existence of appellant’s pipeline, and (4) erred in failing to find that Branson’s negligence was imputable to both Eiland and Sumruld.

The evidence shows that Sumruld contracted with Branson to construct the trench silo on Eiland’s land. The evidence further shows that Eiland consented to the construction of such trench silo, but did not tell Sumruld that he could build it on top of or in a manner which would obstruct or injure appellant’s pipeline.

As a part of its judgment the court made findings of fact which are supported by the evidence and are substantially as follows : Branson, on September 30, 1960, severed appellant’s pipeline resulting in damages in the sum of $2,353.46, constituting the cost of repairs to the pipeline and the value of gasoline lost because of the break; that the action of Branson in severing the pipeline was negligence and constituted a trespass against appellant; that Branson’s action in severing the pipeline was not under or by reason of instructions from Eiland or Sumruld but as an independent contractor employed by Sum-ruld to construct a trench silo on lands owned by Eiland and on which Sumruld was a tenant; that Eiland consented to the construction of a trench silo on the land by his tenant Sumruld but did not specify where it should be placed; that Sumruld and the contractor, Branson, staked out on the ground the location of the proposed trench silo at an alternate location suggested as more suitable by Branson Construction Company and such location was not over the pipeline but as its nearest point was a number of feet west of appellant’s pipeline; that Sumruld left to Branson Construction the choice of the means to be used and the method to be followed in constructing the trench silo and was not present after the location agreed upon had been staked out or after Branson had begun work thereon; that neither Eiland nor Sumruld advised Branson of the location of the pipeline, but before Branson cut into appellant’s pipeline while excavating outside the stakes which had been set, Sumruld’s sons warned Branson of the presence and location of the line and that the failure of Eiland or Sumruld to point out to Branson the location of the line was not a proximate cause of the damage sustained thereto; that the damage sustained by appellant Okan Pipeline Company was solely the proximate result of the conduct of Branson in cutting into the pipeline after acquiring knowledge of its presence; that neither Eiland nor Sumruld trespassed on appellant’s pipeline and that neither is in any manner indebted to appellant for the injury and damages complained of.

It is undisputed that at the time of the damage complained of in September of 1960, Okan’s Petroleum pipeline was lawfully in place across a section of land owned by Eiland by virtue of a recorded right-of-way grant from Eiland. Eiland’s tenant, Sumruld, had also executed a consent agreement at the time of laying the pipeline, in May of 1956. The right-of-way agreement executed by Eiland on May 9, 1956 contained the following language: “ * * * Grantors agree not to build, create or construct, nor permit to be built, created or constructed, any obstruction, building, engineering works, or other structure over said pipe line.” Sumruld’s consent agreement contained the following provision: “ * * * the tenant hereby consents to the construction of the pipe line system and agrees not to obstruct or interfere with the construction or the operation thereof.”

We overrule appellant’s point that the court erred in failing to find that ap-pellees are liable because each breached his contract and covenant not to obstruct or permit the obstruction of the pipeline, It is undisputed that Eiland did not build over or in any manner obstruct or injure the pipeline. He did consent to the building of a trench silo on his land, but by such a general consent to Sumruld did not authorize its construction on or over appellant’s pipeline. Appellant’s contention that ap-pellees are liable for a breach of their contracts is apparently based upon the theory that the above quoted provisions of such contracts constitute agreements to indemnify appellant against loss because of the obstruction or damage to the pipeline on the land in question. In support of this contention appellant cites Pecos & N. T. Ry. Co. v. Amarillo St. Ry. Co., Tex.Civ.App., 171 S.W. 1103. The material provision of the contract in the cited case was unquestionably one of indemnity against the loss or damage there complained of regardless of negligence. The provisions of the contracts here involved were not agreements to indemnify appellant. Eiland executed a right-of-way contract and agreed not to build nor permit to be built any building or structure over the pipeline. Sumruld executed what is designated as “a consent of tenant agreement” in which he agreed “not to obstruct or interfere with the construction or operation of the pipeline.” The agreement of Sumruld was entered into prior to the construction of the pipeline in 1956, and was simply a subordination of Sumruld’s right as a tenant to the exclusive possession and use of the land involved.

We also overrule appellant’s second point contending that the court erred in failing to find that Eiland and Sumruld were liable to appellant because they had actual and constructive knowledge of the location of the pipeline and negligently failed to warn Branson of its location and thus participated in the commitment of a trespass upon appellant’s pipeline. Eiland testified that he consented to the construction by Sumruld of a trench silo on his land and specified no restriction as to its location. He further testified, however, that he had no idea that the silo would be built on top of appellant’s pipeline. Sumruld admitted that he did not mention the presence of the pipeline to Branson and there was testimony to the effect that Sumruld had stated that he forgot about the pipeline. It is undisputed that both appellees knew the pipeline was on the land and that neither advised Bran-son of its existence.

In our opinion the court did not err in failing to find that Eiland was guilty of negligence in failing to warn Branson of the location of the pipeline and that such alleged negligence constituted a trespass upon appellant’s pipeline. The trespass shown by the evidence was by Branson. The evidence does not show and certainly does not conclusively show that Eiland committed a trespass or that he authorized Branson to do so. Eiland did not employ Branson to construct the trench silo and in fact had no connection whatever with Branson. The only connection that Eiland had with the construction of the trench silo was to give Sumruld permission to construct such a silo upon his land. Such a general consent by Eiland to Sumruld and the failure to warn Branson of the location of the pipeline under the circumstances did not constitute negligence or trespass by Eiland as a matter of law, and the court did not err in failing to find that Eiland was liable to appellant.

Although the evidence shows that Sumruld employed Branson to construct a trench silo on the land in question we are of the opinion that Branson was acting as an independent contractor. Sumruld did not warn or advise Branson of the location of appellant’s pipeline but the evidence shows that Sumruld’s sons did warn Bran-son of the presence and location of the pipeline. Under these facts the trial court did not err in holding that the failure of Sumruld or Eiland to point out to Branson the location of the pipeline was not a proximate cause of the damage sustained.

Appellant further contends that the court erred in admitting the testimony of Sumruld’s sons to the effect that they warned Branson of the presence of appellant’s pipeline, urging that such testimony was hearsay and inadmissible. We overrule this contention. The testimony in question was offered for the purpose of showing that Branson was warned and knew of the existence and location of the pipeline. Branson’s knowledge of the existence and location of the pipeline was material to a determination of the question of whether the negligence, if any, of ap-pellees in failing to warn Branson was a proximate cause of the damage thereto. The testimony of Sumruld’s sons to the effect that they told Branson of the existence of the pipeline in dangerous proximity to where Branson was excavating was certainly material and admissible on the question of whether Branson had such knowledge. The purpose of the testimony complained of was not to prove the truth of the statements by Sumruld’s sons to Branson, that is, that the location of the pipeline was at the place where they said it was. The evidence was not hearsay and appellant’s contention to the contrary is not well taken. 17 Tex.Jur. pages 528, 529; 31A C.J.S. Evidence § 193, pages 534, 538; Seaboard Air Line Railroad Company v. Ford, Fla., 92 So.2d 160.

We also overrule appellant’s point number 4 in which it is contended that the court erred in failing to find that Branson’s negligence was imputable to both Eiland and Sumruld. As already noted Eiland did not employ Branson and had no connection with him. Branson was employed-by Sum-ruld to construct the trench silo but the evidence supports the finding by the court that Branson was an independent contractor. Appellant contends that Sumruld directed Branson where to construct the silo but the evidence shows that the agreement between Branson and Sumruld concerning the location of the silo was not over the pipeline but was several feet therefrom. Although Sumruld did not advise Branson of the dangerous location of the pipeline in proximity to the proposed silo it is shown upon ample evidence that Branson knew of the location of the pipeline and negligently trespassed upon and injured same. The construction of the trench silo as shown by the evidence was not shown to be inherently dangerous. There was no showing that the negligence of the independent contractor was not the sole proximate cause of the damage. In fact the court found to the contrary. As previously noted there was no contractual undertaking on the part of Sumruld to protect appellant from the damage complained of. In this state of the record the court did not err in failing to find that Branson’s negligence was imputable to both Eiland and Sumruld.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    In re ADOPTION OF Mollie Page ARMSTRONG, a Minor.
    No. 5618.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 15, 1965.

      Morgan & Boling, El Paso, for appellant.
    W. O. Craft, William Duncan, El Paso, for appellee.
   CLAYTON, Justice.

Under 'mandate of the Supreme Court of the United States issued pursuant to the ruling of that Court on Writ of Certiorari to this court in Cause No. 149, April 27, 1965, styled Armstrong, Petitioner v. Manzo, et ux., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62, the former opinion of this court in the above styled and numbered cause (Tex.Civ.App., 371 S.W.2d 407, err. ref., n. r. e.) is withdrawn, and this opinion substituted therefor. For clarity, and to avoid any possible misinterpretation by paraphrasing the opinion of the United States Supreme Court, that opinion is here-inbelow set out verbatim, as follows:

“The petitioner, R. Wright Armstrong, Jr., and his wife were divorced by a Texas court in 1959. Custody of their only child, Molly Page Armstrong, was awarded to Mrs. Armstrong, and the petitioner was granted ‘the privilege of visiting with said child at reasonable times, places, and .intervals.’ The divorce decree ordered the petitioner to pay $50 a month for his daughter’s support. In 1960 Mrs. Armstrong married the respondent, Salvatore E. Manzo. Two years later the Manzos filed a petition for adoption in the District Court of El Paso County, Texas, seeking to make Salvatore Manzo the legal father of Molly Page Armstrong.
“Texas law provides that an adoption such as this one shall not be permitted without the written consent of the child’s natural father, except in certain specified circumstances. One such exceptional circumstance is if the father ‘shall have not contributed substantially to the support of such child during [a] period of two (2) years commensurate with his financial ability.’ In that event, the written consent of the judge of the juvenile court of the county of the child’s residence may be accepted by the adoption court in lieu of the father’s consent.
“Preliminary to filing the adoption petition, Mrs. Manzo filed an affidavit in the juvenile court, alleging in conclusory terms that the petitioner had ‘failed to contribute to the support of’ Molly Page Armstrong ‘for a period in excess of two years preceding this date.’ No notice was given to the petitioner of the filing of this affidavit, although the Manzos well knew his precise whereabouts in Fort Worth, Texas. On the basis of the affidavit, and without, so far as the record shows, a hearing of any kind, the juvenile court judge promptly issued his consent to the adoption. In the adoption petition, filed later the same day, the Manzos alleged that ‘consent of the natural father, R. W. Armstrong, Jr., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so for a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas * * * has consented In writing to said adoption.’ No notice of any kind was given to the petitioner of the filing or pendency of this adoption petition.
“An investigator appointed by the court made a detailed written report recommending the adoption, and a few weeks later the adoption decree was entered. The decree provided in accord with Texas law that ‘all legal relationship and all rights and duties between such Child and the natural father shall cease and determine, and such Child is hereafter deemed and held to be for every purpose the child of its parent by adoption, as fully as though naturally born to him in lawful wedlock,’ and further provided that ‘the said Molly Page Armstrong shall be known by the Christian and surname as Molly Page Manzo, from this day forward.’
“During this entire period the petitioner was not given, and did not have, the slightest inkling of the pendency of these adoption proceedings. On the day the decree was entered, however, Salvatore Manzo wrote to the petitioner’s father, advising him that T have this date completed court action to adopt Molly Page as my daughter and to change her name to Molly Page Manzo.’ The petitioner’s father immediately relayed this news to the petitioner, who promptly filed a motion in the District Court of El Paso County, asking that the adoption decree ‘be set aside and annulled and a new trial granted,’ upon the ground that he had been given no notice of the adoption proceedings.
“The court did not vacate the adoption decree, but set a date for hearing on the motion. At that hearing the petitioner introduced evidence, through witnesses and by depositions, in an effort to show that he had not failed to contribute to his daughter’s support ‘commensurate with his financial ability.’ At the con-elusion of the hearing the court entered an order denying the petitioner’s motion and providing that the ‘adoption decree entered herein is in all things confirmed.’
“The petitioner appealed to the appropriate Texas court of civil appeals, upon the ground, among others, that the trial .court had erred in not setting aside the adoption decree, because the entry of the decree without notice to the petitioner had deprived him ‘of his child without due process of law.’ The appellate court affirmed the trial court’s judgment, and the Supreme Court of Texas refused an application for writ of error.
“We granted certiorari. 379 U.S. 816, [85 S.Ct. 46, 13 L.Ed.2d 26.] The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner’s motion to set aside the decree served to cure its constitutional invalidity.
“In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption .proceedings violated the most rudimentary demands of due process of law. ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313 [70 S.Ct. 652, at 656, 94 L.Ed. 865]. ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278]; Grannis v. Ordean, 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363]; Priest v. Town of Las Vegas, 232 U.S. 604 [34 S.Ct. 443, 58 L.Ed. 751]; Roller v. Holly, 176 U.S. 398 [20 S.Ct. 410, 44 L.Ed. 52].’ Id., at 314 [70 S.Ct. at 657]. Questions frequently arise as to the adequacy of a particular form of notice in a particular case. See, e. g., Schroeder v. City of New York, 371 U.S. 208 [83 S.Ct. 279, 9 L.Ed.2d 255]; New York v. New York, N. H. & H. R. Co., 344 U.S. 293 [73 S.Ct. 299, 97 L.Ed. 333]; Walker v. Hutchinson City, 352 U.S. 112 [77 S.Ct. 200, 1 L.Ed.2d 178]; Mullane v. Central Hanover Bank & Tr. Co., supra. But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies. Cf. May v. Anderson, 345 U.S. 528, 53 [73 S.Ct. 840, 843, 97 L.Ed. 1221],
“The Texas Court of Civil Appeals implicitly recognized this constitutional rule, but held in accord with its understanding of the Texas precedents, that whatever constitutional infirmity resulted from the failure to give the petitioner notice had been cured by the hearing subsequently afforded to him upon his motion to set aside the decree. 371 S.W.2d at 412. We cannot agree.
“Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the moving parties, would have had the burden of proving their case as against whatever defenses the petitioner might have interposed. See Jones v. Willson, [Tex.Civ.App.], 285 S.W.2d 877; Ex parte Payne, [Tex.Civ.App.], 301 S.W.2d 194. It would have been incumbent upon them to show not only that Salvatore Manzo met all the requisites of an adoptive parent under Texas law, but also to prove why the petitioner’s consent to the adoption was not required. Had neither side offered any evidence, those who initiated the adoption proceedings could not have prevailed.
“Instead, the petitioner was faced on his first appearance in the courtroom with the task of overcoming an adverse decree entered by one judge, based upon a finding of nonsupport made by another judge. As the record shows, there was placed upon the petitioner the burden of affirmatively showing that he had contributed to the support of his daughter to the limit of his financial ability over the period involved. The burdens thus placed upon the petitioner were real, not purely theoretical. For ‘it is plain that where the burden of proof lies may be decisive of the outcome.’ Speiser v. Randall, 357 U.S. 513, 525, [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460]. Yet these burdens would not have been imposed upon him had he been given timely notice in accord with the Constitution.
“A fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394 [34 S.Ct. 779, 783, 58 L.Ed. 1363]. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. His motion should have been granted.
“For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
“It is so ordered.”

We adopt the foregoing as the opinion of this court and, in accordance therewith, the judgment of the trial court in this cause is reversed and the cause remanded for a new trial after notice in conformity with the opinion of the United States Supreme Court as above set out.

      “1. Mrs. Manzo joined the petition in order to manifest her consent to the adoption, and also filed a separate written consent.

      “2. Tex.Rev.Civ.Stat.Ann., Art. 46a (6) provides in pertinent part as follows:
      “ ‘Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or ^parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child’s residence.’ The petitioner does not here question the constitutional validity of the substantive provisions of this statute.

      “3. 6 Tex.Rev.Civ.Stat.Ann., Art. 46a (9).

      “4. The third paragraph of the petitioner’s motion was as follows:
      “ ‘At the time the above entitled and number proceeding came on to be heard and judgment rendered, your Petitioner had never been advised or given notice, actual or constructive, as required by the laws of Texas, that this proceeding was to be heard or that it was even pending or of the judgment herein until after the rendition of the judgment, nor was any attempt made to notify Petitioner in any way of this proceeding although his address and whereabouts were well known to the parties, in fact the parties to this proceeding deliberately and wrongfully withheld all notice from Petitioner for the expressed purpose of denying him any opportunity to appear, contest and present his defenses to this proceeding; and that Petitioner was prevented from appearing and presenting his defenses not by his own fault or negligence but rather by the deliberate and wrongful acts of the parties to this proceeding.’
      The prayer of the motion was as follows:
      ‘Wherefore, Petitioner prays that the judgment and decree entered in this proceeding be in all things vacated, set aside and annulled and a new trial granted.’

      “5. See note 2, supra.

      “6. 371 S.W.2d 407.

      “7. See Lee v. Purvin, [Tex.Civ. App.,] 285 S.W.2d 405; Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, [151 A.L.R. 1217]; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687; Johnston v. Chapman, [Tex.Civ.App.] 279 S.W.2d 597.


author: MURRAY, Chief Justice.

text:
    CARDINAL PETROLEUM CORPORATION et al., Appellants, v. M. M. ROBINSON et ux., Appellees.
    No. 14399.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 22, 1965.
    Rehearing Denied Oct. 20, 1965.

      Carl Wright Johnson, Alfred W. Offer, San Antonio, for appellants.
    Prichard, Peeler, Smith & Hatridge, Corpus Christi, Oliver & Oliver, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is an appeal by Cardinal Petroleum Corporation and Woodrow Wilson Sellers, from an order of the District Court of Mc-Mullen County, Texas, overruling their respective pleas of privilege to be sued in the county of their residence. M. M. Robinson and his wife, Grace Robinson, are the appellees herein. Venue was asserted by appellees in McMullen County under the provisions of Subd. 9a of Article 1995, Vernon’s Ann.Civ.Stats.

This controversy arose out of a collision between a truck belonging to Cardinal Petroleum Corporation, in charge of its employee, Woodrow Wilson Sellers, and an automobile driven by Grace Robinson. The truck had been stalled on Highway 173, ten miles north of the town of Tilden and south of the town of Cross, in McMullen County. Sellers, an experienced truck driver, was employed by Cardinal Petroleum Corporation, and had worked for it continuously for three years as a truck driver hauling crude oil. Prior to the accident he had been traveling north on Highway 173, on his way to the “Roark Lease” located on the east side of the highway. He was driving a 1962 International tractor-trailer, with a V-8 engine and a tandum axle, which he described as having “twin screws,” and the trailer was an empty aluminum pressure tank. He slowed down but missed the road for his turn off, and went past it approximately 100 feet. He then attempted to make a U turn in order to go back to his turn-off road. When he had almost completed the U turn his tractor lost traction on the axles and he was unable to complete the turn. This left the tractor headed south, but the trailer blocked the west half of the highway. He attempted to complete the turn but was unable to do so, and while the tractor and trailer were in this position, Grace Robinson, who was traveling south on Highway 173, ran into the side or rear of the trailer and was severely injured.

The principal controversy here is whether or not Sellers placed reflectors to the rear and side of the tractor-trailer, as is required by Secs. 137 and 138, Art. 6701d, Vernon’s Ann.Civ.Stats. Sellers testified that when his trailer-tractor became disabled, in that he was unable to move it, a party traveling north on Highway 173 stopped and offered to render aid. This party volunteered to send a wrecker out from Pleasanton, which was some distance to the north, and about that time another party, traveling south, stopped and offered aid; he said he would go to Tilden and send help. Sellers preferred to have a wrecker come out from Tilden, so he thanked the party going north and told him it would not be necessary to send a wrecker from Pleasanton. He asked, the party who was headed south to wait just a few minutes, as he wanted to make another effort to move his vehicle, and while he was attempting to do this Grace Robinson struck the vehicle and was injured. Sellers testified that he left the headlights and all other lights burning while the tractor-trailer was in this disabled position. He also testified that he placed a reflector 100 feet to the rear of the trailer on the center line of the highway, another about ten feet north of the trailer on the center line, and a third one “about a hundred feet on the south line.” (Section 138 of Art. 6701d, V.A.C.S., requires that reflectors be placed in the lane that is being blocked.) Grace Robinson testified that she saw no reflectors or lights on the vehicle with which she collided. It appears that both Grace Robinson and Sellers are interested witnesses, and the testimony of neither can be regarded as that of a disinterested witness. The trial judge gave credence to the testimony of Grace Robinson and overruled the pleas of privilege. Her testimony was sufficient to prove negligence on the part of Sellers and meets the provisions of Subd. 9a of Article 1995, which gives venue in the county where the collision occurred when negligence on the part of defendant is shown. Appellants complain because the controverting affidavit is verified by Travis A. Peeler, an attorney in the case. The controverting affidavit shows that Peeler was duly qualified and authorized to file the controverting plea and to make the affidavit, that he had full knowledge of the facts set forth therein, and that every statement and allegation contained therein and the allegations in plaintiffs’ first amended original petition were true and correct. The controverting affidavit was sufficient in every respect to controvert the pleas of privilege, and was not defective though signed by an attorney in the case. Rule 14, Texas Rules of Civil Procedure; Smith v. Crockett Production Credit Ass’n, Tex.Civ.App., 372 S.W.2d 954.

The appellees further allege that venue would lie in McMullen County under the provisions of Subd. 29a of Art. 1995, but they have apparently abandoned that allegation, and no contention is here made that venue lies in McMullen County under this subdivision of the venue statute.

The judgment of the trial court overruling appellants’ pleas of privilege is affirmed.


author: PARKER, Justice.

text:
    KENTUCKY CENTRAL LIFE INSURANCE COMPANY et al., Appellants, v. Patricia Millbank GORDON, Appellee.
    No. 6787.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 16, 1965.

      Long & Parker, Port Arthur, for appellants.
    Freeland & Watson, Beaumont, for ap-pellee.
   PARKER, Justice.

Patricia Millbank Gordon sued to recover from Kentucky Central Life Insurance Company the cash surrender value of a fifteen (15) year term policy of life insurance, plus 12% penalty and attorney’s fee. The policy was issued by Oil Industries Life Insurance Company of Houston on April IS, 195?, the obligation under said policy being assumed by Kentucky Central Life Insurance Company. Summary judgment was granted the plaintiff against Kentucky Central Life Insurance Company for $3,123.07. The parties will be designated as appellant and appellee.

Appellant has three points of error as follows:

1. The error of the Court in granting summary judgment where the motion for summary judgment of the appellee contained only a verified motion, sworn to by the attorney for the appellee, and that the matters recited in said motion are hearsay as to the attorney and are matters that the attorney' would not be competent to testify to at a trial on the merits and especially where appellant controverted the motion for summary judgment by a sworn motion and an affidavit attached by an affiant who-had personal knowledge of the disputed facts in issue and was competent to testify at a trial on the merits.
2. The error of the Court in granting appellee judgment for twelve (12%) per cent penalty and attorney’s fee where there is no competent evidence of a demand for payment within purview of the statute; Article 3.62 of the Insurance Code, V.A.T.S.
3. The error of the Court in denying appellant’s motion for summary judgment.

Appellant’s controverting affidavit is to the effect the mutual agreement of the parties was the policy would have no cash surrender values but that by mutual mistake caused" by a clerical error the policy was issued containing cash surrender values. In the record before us this is a disputed fact issue. Prior to the time ap-pellee filed her motion for summary judgment appellant’s answer was a general denial. Upon proper pleading for reformation of the insurance contract, the policy could be reformed if the jury found there was a mutual mistake as to its terms as appellant contends. Such fact issue does fall outside the precise scope of the original pleadings. The summary judgment denied appellant its day in court which moves this court to treat the pleadings as though they were amended to embrace the issue of reformation of the contract because of the alleged mutual mistake. Appellant should have this opportunity. Appellant’s point of error No. 1 is sustained. Appellant’s point of error No. 2 is immaterial in view of our holding.

Appellant’s point of error No. 3 requires discussion. In the insurance contract under the heading “Table of Cash, Loan and Non-Forfeiture Vales” it is stated that “The values and non-forfeiture factors are per $1,500.00 of the ultimate amount of this policy.” The insured being age 40 when the policy was issued and the policy being over five years old when surrendered, we quote that part of such table applicable to the fifth year, which states:

Tabular Cash "Age End of Policy Year or Loan Value
40 5 135.13”

The premiums were paid for five years. The policy was in force at the time appellee elected to surrender the policy for cash. Further, in such contract it provides under the heading “Cash Value and Maturity Endowment Proceeds”:

“By written notice in form satisfactory to the Company upon surrender of this policy for cash value or within, one month of its maturity as an. endowment, the Insured can elect to have the unpaid proceeds settled under any option set forth in these optional methods of settlement provisions.”

Appellant argues it would not be liable under this contract after midnight of April 13-, 1974, and, therefore, the “ultimate” amount of the term policy was nothing. Construing the contract on all four corners, we cannot give such a strained effect to one word, namely “ultimate”, to control the other provisions thereof to completely nullify the provision for cash surrender value at any time prior to the expiration of the policy. On the contrary, we consider the ultimate end of this policy arrived when the insured exercised her option to surrender it for cash. Appellant’s point of error No. 3 is overruled. In order that the disputed fact issue be resolved as to whether or not there was a mutual mistake in the issuance of the policy as written due to a clerical error, the judgment of the trial court is reversed and this cause remanded.

Reversed and remanded.