author: TIREY, Justice.

text:
    ELECTRO-HYDRAULICS CORPORATION OF AMERICA, Appellant, v. SPECIAL EQUIPMENT ENGINEERS, INC., Appellee.
    No. 4352.
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1967.
    Rehearing Denied Deb. 16, 1967.

      Cook & Hobbs, Fort Worth, for appellant.
    Vinson, Elkins, Weems & Searls, Ross N. Sterling, Houston, for appellee.
   OPINION

TIREY, Justice.

This suit was brought by the Special Equipment Engineers, Inc., on a written contract against the Electro-Hydraulics Corporation of America, to recover the balance which plaintiff claimed was owed by the defendant on the contract for design and construction by it of some special equipment. Plaintiff went to trial on its First Amended Original Petition. It is in two counts. The first count is for the damages it claims it sustained by reason of breach of the contract sued upon, and for defendant’s wrongful conversion of certain property of plaintiff. The court refused to hear any evidence with regard to the conversion count so here we are concerned only with the allegations in count two. Count two is in the nature of an accounting under the breach of' the contract, and plaintiff made affidavit to its pleading. Attached to the pleading is the contract in suit and exhibits A, B, and C, which were made a part of the pleading. Defendant went to trial in its First Amended Original Answer and counterclaim, and this pleading contained a general denial and suit for damages for breach of contract by plaintiff and sought damages in the sum of $21,240.00 on its counterclaim. Plaintiff entered a general denial to the defendant’s counterclaim. The cause was tried without the aid of a jury, and the court found in favor of plaintiff in the sum of $6,044.-72 and interest and costs, and further found that plaintiff was entitled to recover attorney’s fees in the sum of $1815.00, and for costs and denied defendant any relief on its counterclaim. At plaintiff’s request the court filed Findings of Fact and Con-elusions of Law. We qoute the pertinent parts:

“FINDINGS OF FACT
“1. On or about September 20, 1963, plaintiff and defendant, both of which are private corporations duly incorporated under the laws of the State of Texas, entered into a written agreement embodied in plaintiffs Proposal No. 1, dated August 20, 1963, and defendant’s Purchase Order No. 5752, dated September 20, 1963, both of which documents are in evidence, by the terms of which plaintiff agreed to design and manufacture or have manufactured certain machinery more fully described in the contract documents, and defendant agreed to pay plaintiff $28,328.00 upon delivery of such machinery to defendant in Fort Worth, Texas, and its assembly, testing, and acceptance by the defendant.
“2. Certain changes in the machinery contemplated were agreed upon by plaintiff and defendant and, subsequently, the finally agreed upon purchase price therefor was settled at $28,767.50.
“3. Plaintiff proceeded to prepare drawings of the machinery contemplated by the contract and on or about October 17, 1963, defendant approved the drawings with some change.
“4. After approval of the drawings by defendant, plaintiff proceeded to procure the materials necessary for the construction of the contemplated machinery. Delays were encountered in the procurement of the materials required, which extended the time of completion of performance by plaintiff beyond the period of the contract. These dalays, however, were not occasioned by any act or omission by plaintiff but were the result of failure by defendant to make timely payments as required by the contract.
“5. During the course of procurement of materials for the machinery by plaintiff, plaintiff was paid by defendant a total of $26,068.63.
“6. The contract provides that plaintiff would furnish the services of an engineer for the supervision of erection of the machine in the plant of defendant in Fort Worth, Texas, at a rate of $100.00 per day and expenses. Plaintiff furnished the services of such an engineer who did supervise the assembly and erection of the machine as required by the contract.
“7. The engineer supervising erection of the machine worked 59 days and incurred $958.00 living and travel expenses in the performance of the contract. During this period of time, delays in assembly and erection of the machinery were incurred which were not the fault of defendant. Charges for the services and expenses of the engineer supervising erection and assembly of the machinery during these delays are in the amount of $2,798.00.
“8. The erection and assembly of the machine was completed or substantially completed on or about May 23, 1964, and on that date, the engineer supervising erection of the machine returned to Houston from Fort Worth.
“9. The contract provides that after completion of assembly and erection of the machine there would be an acceptance test witnessed by representatives of plaintiff and defendant and that upon acceptance of the machine by defendant all amounts due under the contract would be payable in cash.
“10. On or about May 25, 1964, the president of defendant requested that the president of plaintiff be present in Fort Worth for acceptance tests of the machine on May 27, 1964. Plaintiff’s president informed defendant that he would not be available for such tests until May 29, 1964.
“11. On or about May 27, 1964, plaintiff received notice that defendant intended to ship the machinery to England without conducting the acceptance tests contemplated by the contract.
“12. Over the written protest of the plaintiff, defendant did immediately thereafter sell and ship the machinery to a purchaser in England and thereby prevented the conducting of acceptance tests as contemplated by the contract and precluding plaintiff from an opportunity to rectify any defects in the machinery claimed by defendant.
“13. Thereafter, plaintiff, on numerous occasions, rendered statements to defendant for the amounts claimed to he due under the contract, i. e., balance due upon acceptance of the machinery, $2,698.87; services and expenses of engineer supervising erection, $6,858.00; less credit for materials purchased by defendant in the amount of $714.15. Demand for the amount thus claimed to be due and owing of $8,-842.72 was made by plaintiff in writing, more than 30 days prior to the institution of this suit and no part thereof was paid by defendant.
“14. It became necessary that plaintiff employ an attorney to enforce its claim under the contract and a reasonable attorney’s fee in this action would be $1,-815.00.
“CONCLUSIONS OF LAW
“1. Plaintiff performed or substantially performed its contract with defendant só as to become entitled to all amounts due under such contract.
“2. Defendant breached its contract with plaintiff in failing to conduct acceptance tests as contemplated thereby and in failing to pay plaintiff the amounts due thereunder.
“3. By its acts, defendant accepted the performance or substantial performance of plaintiff in designing and constructing and supervising the erection of the machine contemplated by the contract.
“4. Defendant is indebted to plaintiff in the amount due under the contract i. e., $8,842.72, less the amount charged for services of the engineer supervising erection during delays in assembly and erection not caused by defendant, i. e., $2,798.00, or $6,044.72 with interest thereon at six percent (6%) per annum from May 27, 1964, plus a reasonable attorney’s fee of $1,815.-00.”

Appellant assails the judgment on 7 points. They are substantially to the effect that the Court erred:

(1, 2 and 4) In rendering judgment in favor of appellee for the full amount of the contract price without making a finding of fact that appellee had designed and constructed the equipment in accordance with the specifications of the contract; because the evidence showed conclusively that the equipment was not in fact designed and constructed in accordance with the specifications of the contract; and because there is no evidence and no finding of fact of waiver by appellant of the defects in design and construction of the equipment.

(3) In excluding from evidence defendant’s Exhibit No. 9, which was a letter showing that appellant did not waive the defects in design and construction of the equipment.

(5) In making Finding of Fact No. 12 to the effect that defendant’s shipping of the machinery to its customer prevented the conducting of acceptance tests as contemplated by the contract, because the undisputed evidence shows conclusively that the acceptance tests were in fact conducted.

(6) In making its Conclusion of Law No. 2 to the effect that the defendant breached the contract in failing to conduct acceptance tests as contemplated by the contract, because all of the evidence shows conclusively that such acceptance tests were in fact conducted.

(7) In making its Conclusion of Law No. 3 to the effect that appellant accepted the machine as designed and constructed by ap-pellee, because there is no finding of fact to support such conclusion of law, and the evidence clearly shows that appellant did not in fact accept the machinery.

We overrule each of the foregoing points and affirm the judgment of the trial court for reasons hereinafter briefly stated.

Since this action is based on a written contract between the parties and written exhibits in connection therewith, we are of the view that appellant’s points present only two major contentions. The first one is: That plaintiff did not perform its contract, and the second one is that defendant did not accept the performance of the contract by plaintiff with an ancillary point on exclusion of part of a letter written by defendant to plaintiff. These contentions necessarily require a very careful examination of the statement of facts, the contract between the parties, and the exhibits tendered in evidence. So, the question here presented to us is: Does the evidence tendered support the findings of the trial court to the effect that plaintiff did substantially perform the obligations imposed upon it by the contract, and did the defendant accept such performance? We think it does. In appellant’s brief we find this statement:

“The record in this case is conclusive to the effect that the machinery was faulty in design and defective in construction in many substantial respects and was not designed and built in accordance with the specifications of the contract. Appellee through its engineer and President David O’Connor admitted the following defects in design and construction of this equipment:
“1. The mechanism which pushed the end plates in against the material being worked was designed so as to cause excessive stress and breaking of the bearing plates.
“2. The automatic filament feed did not function satisfactorily, and consequently did not satisfy Specifications Nos. 13, 14 and 18 of the contract.
“3. The equipment would not form tubular blanks within the time specified by the contract, and consequently did not meet Specification No. 17 of the contract.
“4. The machinery would sometimes form flat blanks within the time required by the contract and sometimes it would not, and consequently it failed to meet Specification No. 16.
“5. The end plug mechanism would stick and fail to operate properly, and therefore the machinery failed to meet Specification No. 18 of the contract.
“6. The design was faulty for the assembly of dies, and consequently failed to comply with Specification No. 1 of the contract.
“7. The equipment was faulty in design in that limit switches were inaccessible and could not be reached for adjustments.
“8. The machinery was faulty in design in that the hydraulic lines were inaccessible and leaked considerably and it was impossible to obtain access to the plumbing to stop the leaks.
“9. The design was faulty in that the electrode adjustment was difficult to make, and consequently the machinery did not satisfy Specification No. 13 of the contract.”

Needless to state that the foregoing contentions required us to consider the testimony of the witnesses most carefully, and this we have done, and it is our view that there is no admission by the witness, O’Connor, nor of plaintiff of any defect or lack of compliance with the specifications. His testimony consists of almost 80 pages in the statement of facts, and it is in detail of the work done by the plaintiff in the performance of its contract. He testified specifically that plaintiff had designed and built the required machinery in accordance with the contract and the court believed his testimony. Since the trial judge was the trier of the facts it was in his province, and it was certainly his duty to take into consideration all the facts and surrounding circumstances in connection with the testimony of each of the witnesses tendered,, and to arrive at his conclusion as to the facts controlling this case. In so doing, he had a right to accept or reject all or any part of the testimony of the witness tendered. Hood v. Texas Indemnity Insurance Company, 146 Tex. 522, 209 S.W.2d 345, points (1-3), Supreme Court, February 1948. We think the evidence is ample to sustain each of the findings made by the trial court. In appellant’s brief we find this statement:

“We are unable to understand how the Honorable Trial Court made the determination set forth in its Conclusion of Law No. 3 to the effect that appellant ‘accepted the performance or substantial performance’ of appellee. There is no finding of fact to support this conclusion of law. ‘Waiver’ is a fact issue, and ‘acceptance’ is a fact issue. The Honorable Trial Court has failed to make a finding of fact in support of either defense to appellant’s counterclaim. With all of the evidence in the record being contrary to appellee’s position on ‘waiver’ and ‘acceptance’ it would have been impossible for the Honorable Trial Court to make a finding of fact favorable to appellee on either of these issues.”

We are certainly not in accord with the above contention. In McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016, Supreme Court 1950, we find this statement: “The designation is not controlling, and looking to all of the findings and conclusions we may consider this conclusion a finding of fact.” As we understand our Supreme Court in the foregoing case, whether the Trial Court’s holding here be considered Findings of Fact or Conclusions of Law, the detail findings of fact here include every element of fact leading to a finding or conclusion of performance. That leads us to say that even if a presumption were required to fill the gap, such presumption would be required in favor of sustaining the trial court. See Rule 299 Texas Rules of Civil Procedure. Each of appellant’s points has been considered and each is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    W. M. BRUFLAT et ux., Appellants, v. CITY OF FORT WORTH, Appellee.
    No. 16790.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 20, 1967.
    Rehearing Denied Feb. 17, 1967.

      King & Massey, and Marion L. Massey, Fort Worth, for appellants.
    S. G. Johndroe, Jr., City Atty., and Jerome H. Parker, Jr., Henry C. Meyer, Asst. City Attys., Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This is a personal injury suit initiated by Madeline P. Bruflat and her husband, W. M. Bruflat, to recover damages for injuries allegedly sustained by Mrs. Bruflat when she stepped in a hole on a parkway in a residential section of the City of Fort Worth and fell into the street, landing on her right elbow.

In order to prevail the plaintiffs (appellants) had the burden to plead, prove and obtain findings that (1) the defendant (City of Fort Worth) caused or created the dangerous condition (the hole), or (2) the defendant had actual knowledge of the existence of the dangerous condition, or (3) the condition had existed for such a length of time and under such circumstances that it should have been discovered and remedied by the exercise of ordinary care prior to the accident in question. The appellants relied primarily on the third requirement and the case was tried on this theory.

The case was tried to a jury on special issues, to which no exceptions or objections were made by appellants. Nor were any additional issues requested by them. By its verdict the jury found that (1) the condition which caused Mrs. Bru-flat to fall was created by a third party acting independently of the appellee, City of Fort Worth, and over whom it had no control; (2) the defect or condition had not been in existence for such a length of time prior to Mrs. Bruflat’s fall that the employees of the City should have discovered it by the exercise of ordinary care. Klein v. City of Dallas, 71 Tex. 280, 8 S.W. 90, 92 (1888); Daniel v. City of Waco, 132 S. W.2d 131, 133-134 (Waco, Tex.Civ.App., 1939, writ dism., judgm. cor.). The appellants made no objection or exception to such verdict. It was received and filed by the court as the verdict on the issues of fact in the case. The answers of the jury to the issues were supported by ample evidence. Based upon such verdict the court entered judgment for appellee and a take nothing judgment against appellants.

In referring again to the burden imposed upon the plaintiffs to prove one of the three elements above set forth, it is apparent that appellants cannot prevail under the first requirement because the jury found that the condition which caused the fall was created by a third party acting independently of the City and over whom it had no control. Therefore, the condition was not caused or created by the City.

Under the second requirement appellants cannot prevail because no issue was submitted nor requested as to actual knowledge on the part of the City prior to the incident in question. There is no evidence of any actual knowledge on the part of the City. No issue as to actual notice was requested. No objection to its omission from the charge was made. Wilson v. King, 311 S.W.2d 957, 958-959 (Austin, Tex.Civ.App., 1958, writ ref.); Leatherwood v. Holland, 375 S.W.2d 517, 522 (Fort Worth, Tex.Civ. App., 1964, writ ref., n. r. e.). Any evidence favorable to appellants must be rejected and only that which is favorable to the verdict can be considered. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Friedrichs v. Reinhardt, 370 S.W.2d 739 (San Antonio, Tex.Civ.App., 1963, no writ hist.).

As to the third and final requirement which was the element primarily relied upon by the plaintiffs the jury found against them.

Thus, the plaintiffs failed to prove and obtain favorable findings as to any one of the three essential elements necessary to support their alleged cause of action.

We find no merit in the contention that there was a conflict in the jury findings.

The failure to present and preserve assignments of error with respect to alleged conflicting findings of the jury constitutes a waiver. Unless it constitutes fundamental error, it may not be raised for the first time on appeal. No fundamental error is involved under this record. Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S. W.2d 599, 601 (1952); Huff v. Insurance Company of North America, 394 S.W.2d 849, 852-853 (Fort Worth, Tex.Civ.App., 1965, writ ref., n. r. e.).

The appellants contend that the court erred in overruling their motion for judgment predicated upon the answers of the jury to special issues Nos. 9, 10 and 11 to the effect that the servants, agents and employees of the City allowed enough vegetation to grow around and across the hole in question .to where the presence of the hole was concealed from users of the walkway in the exercise of ordinary care on their part which constituted negligence and a proximate cause of the injuries sustained by Mrs. Bru-flat.

In the case of F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 833 (Amarillo, Tex.Civ.App., 1941, writ ref., w. o. m.), the jury found that the defendant failed to sweep its floors (rather than to mow grass as in the instant case) at frequent intervals and that this was negligence and a proximate cause of plaintiff’s injury. Based upon these findings the court rendered judgment for the plaintiff and defendant appealed. In reversing the trial court and rendering judgment for the defendant the Court of Civil Appeals said: “Appellant’s contention here involves merely another method of approaching the condition laid down by the courts upon which the plaintiff in such cases may recover, that is, it must be shown that the banana peel was either placed upon the floor by the employees or agents of the defendant, or that they knew it was there, or that it had remained there a sufficient length of time that the defendant, its agents, servants or employees, by the exercise of ordinary care, would have discovered the fact that it was there. * * * The mere matter of whether appellant was a tidy or a sloven housekeeper was no concern of appellees. We know of no way by which the plaintiff in such cases can relieve himself of the burden of proving one or the other of the essentials mentioned and, since neither of them was established nor even attempted to be proved, the court below, in our opinion, erred in overruling appellant’s motion for a peremptory instruction.”

To the same effect is Henderson v. Pipkin Grocery Co., 268 S.W.2d 703 (El Paso, Tex.Civ.App., 1954, writ dism.), wherein at page 705 the court held: “ * * * A dangerous condition must have been known to defendant or must have existed for such length of time or under such conditions that he would or should have discovered it by the exercise of reasonable diligence. It is accepted doctrine now that the storekeeper is not an insurer. * * * plaintiffs must always discharge the burden of proving that the dangerous condition was either known to the defendant or had existed for such a length of time that he should have known it. It is not enough to prove carelessness or negligence in sweeping or cleaning premises, plaintiffs must always prove in addition the presence of some dangerous substance or condition that was or should have been known to the shopkeeper.” See also Parker Food Stores, Inc. v. Pierce, 374 S.W.2d 699, 703-706 (Forth Worth, Tex. Civ.App., 1964, writ ref., n. r. e.).

The reasoning applied in the cases of Woolworth v. Goldston, Henderson v. Pipkins and Parker Food Stores v. Pierce, supra, is applicable here. The City of Fort Worth cannot be required to anticipate the existence of a dangerous condition solely because the grass in the parkway had grown to a height of three or more inches. To so hold would be tantamount to making a municipal corporation an insurer of the safety of persons using its streets, sidewalks and parkways.

The cases of City of Houston v. Watson, 376 S.W.2d 23, (Houston, Tex.Civ.App., 1964, writ ref., n. r. e.) and Scott v. Liebman, 404 S.W.2d 288 (Texas, 1966), cited and relied upon by appellants, have no application to the facts of this case.

We are of the opinion that the court’s action in overruling the appellants’ motion for judgment predicated upon the jury’s answers to special issues Nos. 9, 10 and 11 and in overruling their motion for judgment non obstante veredicto was correct. To sustain the latter motion the court would have been required to disregard the findings of the jury on the essential issues. We are further of the opinion that the court did not err in disregarding evidence that a City employee had actual knowledge of tall vegetation (grass) in the area of the hole in question for at least two months prior to said plaintiff’s fall.

All of appellants’ points of error are overruled and the judgment of the trial court in all things affirmed.

Affirmed.


author: PARKER, Justice.

text:
    J. W. HALL, Appellant, v. J. M. MUCKLEROY et al., Appellees.
    No. 6850.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 12, 1967.
    Rehearing Denied Feb. 1, 1967.

      Forse & Forse, Newton, John E. Collins, Dallas, for appellant.
    Joe H. Tonahill, Jasper, for appellees.
   PARKER, Justice.

This suit was instituted by J. W. Hall against J. M. Muckleroy and Robert L. Muckleroy. Ancillary to its suit for damages, the plaintiff sought a temporary injunction against the defendants to desist and refrain from operating, using and maintaining two cattle holding and shipping pens and loading chute located adjacent to the east property line of land upon which the plaintiff’s home and business was located. On the 21st day of December, 1965, the court refused and denied to enter a temporary injunction.

The Chamber of Commerce of Kirbyville promoted the location of an auction barn north of the City of Kirbyville. They were successful in this promotion and an auction barn was established. About 1954 the defendants acquired the 5 acre tract of land upon which this auction barn was located and such business. Plaintiff Hall’s wife worked for the defendants there from 1956 through 1964. In 1956 plaintiff rented a tract of approximately ½ acre out of the 5 acres owned by defendants for the purpose of using a house thereon as his home and operating a welding shop and junk yard adjoining his home, expecting to get business from the defendants’ customers. Plaintiff had been in the dairy business himself and was familiar with cattle, with the auction barn and its operation. On February 25, 1957, he purchased the Yz acre tract upon which his home and welding shop was located from J. M. Muckleroy. The purchase price was some $5,000, all on credit. The auction barn and livestock pens were present and being used when plaintiff purchased from Muckleroy. When plaintiff moved into this place as a tenant of Muckle-roy he stated that livestock didn’t bother him and his wife, as they were accustomed to them. In addition to the original auction barn, defendants maintained a business of holding cattle and shipping them to other places. The combined business of the defendants increased from year to year and at the time of the institution of this suit on November 24, 1965, the defendants had 30 employees with a business that enabled farmers, ranchers and livestock owners in several counties to market annually livestock of a value in excess of 3 million dollars. There is evidence that this business is an asset to the City of Kirbyville and to the community generally, greatly in excess of any damage plaintiff has suffered. From the very beginning of plaintiff’s possession of his business and home the defendants held weekly auctions in the barn which, according to the evidence and plaintiff’s original petition, were attended by from 50 to 500 people, accompanied by a continuous clamor and din during the whole time they were in progress, with the animals bawling and continuously crying out, with drivers of automobiles starting and racing motors and blowing horns, with peddlers and auctioneers shouting at the top of their lungs. On Wednesdays of each week when auctions are held great numbers of vehicles are parked in and on the highway in front of defendants’ premises and plaintiff’s premises and up and down the highway for a quarter of a mile or more. Plaintiff complained of the odor and unsanitary condition of the barns and pens. Substantially all of the complaints of plaintiff, according to his own testimony, existed prior to September 1965 when defendants constructed or reconstructed two stock holding and shipping pens and a loading chute on their own property. The fence was within some 30 feet of plaintiff’s bedroom window. Plaintiff complained of flies, stench, constant odors and noises causing great annoyance, discomfort and loss of sleep to the occupants of plaintiff’s house, seriously and injuriously affecting the quiet and peaceful enjoyment and use of plaintiff’s premises.

There was conflicting testimony as to sanitation maintained on defendants’ property upon which their business was located, but this was not controlling on the decision to grant or deny a temporary injunction. Some time after defendants’ business was established, the exact date being unknown, all of this property by some procedure was annexed by the City of Kirbyville. On the opposite side of the highway are three or more business establishments. The photograph introduced in evidence shows clearly that this is primarily an industrial area.

Plaintiff’s point of error No. 2 is:

“2. Since the plaintiff was complaining of only a small portion of the defendants’ operation, the trial court erroneously considered and gave undue weight to certain irrelevant and improper evidence with respect to the ‘balancing of equities’ as to defendants’ entire operation.”

Here we are dealing with the principles announced in Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950). In this opinion the Supreme Court said:

“The only question to be decided is whether this nuisance should be abated, or should petitioners be relegated to suits for damages for the injuries the record shows they suffer by virtue of respondent’s operation of the rendering plant.”

The Court of Civil Appeals opinion in that case is found in 223 S.W.2d at page 81 (Sept. 8, 1949), which held the injunction should not have been granted. In the Supreme Court opinion in Storey v. Central Hide & Rendering Co., supra, the Supreme Court held:

“Petitioners take the position that the jury having found the facts constituting the nuisance, they were entitled to the injunction abating the plant as a matter of right. We do not agree. We think that there should have been a balancing of equities in order to determine if an injunction should have been granted.
“ ‘According to the doctrine of “comparative injury” or “balancing of equities” the court will consider the injury which may result to the defendant and the public by granting the injunction as well as the injury to be sustained by the complainant if the writ be denied. If the court finds that the injury to the complainant is slight in comparison to the injury caused the defendant and the public by enjoining the nuisance, relief will ordinarily be refused. It has been pointed out that the cases in which a nuisance is permitted to exist under this doctrine are based on the stern rule of necessity rather than on the right of the author of the nuisance to work a hurt, or injury to his neighbor. The necessity of others may compel the injured party to seek relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance.
“ ‘Some one must suffer these inconveniences rather than that the public interest should suffer. * * * These conflicting interests call for a solution of the question by the application of the broad principles of right and justice, leaving the individual to his remedy by compensation and maintaining the public interests intact; this works hardships on the individual, but they are incident to civilization with its physical developments, demanding more and more the means of rapid transportation of persons and property.’
“ ‘On the other hand, an injunction may issue where the injury to the opposing party and the public is slight or disproportionate to the injury suffered by the complainant.
“ ‘Some decisions ignore the balance of injury doctrine as above stated. They seemingly authorize the grant of an injunction as a matter of right where the facts present a clear case of nuisance. But these cases do not represent the weight of authority.’ Sec. 35, Nuisances, 31 Tex.Jur. 448.”

The Supreme Court affirmed the judgment of the Court of Civil Appeals.

In the second point of error plaintiff asserts that the balancing of equities should not have been considered by the court in deciding whether or not to issue a temporary injunction citing O’Connor v. National Motor Club of Texas, Inc., 385 S.W.2d 558 (Tex.Civ.App.1964, n.w.h.). In the above case there were counterclaims and the court properly held such counterclaims should not have been considered on the question of granting a temporary injunction.

The trial court properly denied a temporary injunction in favor of the plaintiff against the defendants. Balancing of equities was properly considered by the trial court.

Plaintiff’s point of error No. 4 is as follows:

“4. The trial court abused its discretion in not granting plaintiff’s application for a temporary injunction since it was undisputed that defendants were violating valid ordinances of the City of Kirby-ville, Texas thereby placing on the trial court the duty to apply the law to the undisputed facts.”

Plaintiff’s Exhibit No. 2 was an ordinance passed on November 14, 1946. That part of the ordinance plaintiff asserts was violated is as follows:

“Section 1. No owner, Tenant, or Lessee of any lot or lands in the City of Kirbyville, Texas, shall erect or maintain thereon within 10 feet of a property line, public street, alley or building used for residence purpose any barn or stable for the keeping of mules, horses, goats, hogs, cows or other cattle. (Emphasis added.)”

Plaintiff contends it is undisputed this ordinance was being violated. There is no evidence that defendants erected or maintained within 10 feet of a property line or building used for residence purposes any barn or stable for the keeping of livestock. There is evidence there was a fence within some 27 feet of plaintiff’s house. The other ordinance complained of was an ordinance passed on September 7, 1927, defining and declaring a number of things to be nuisances as follows:

“5. Every trade, business or occupation injurious to the health or comfort of those who reside in the vicinity; and any lot or parcel of land, or any recep-table (sic), containing water or slops suffered to become stagnant, offensive or unwholesome from any cause.
“19. Any unwholesome food, liquor or adulterated medicines; and all cattle, horses or hog pens, stables, enclosures, or any place in which any cattle, horse or horses, hogs or dogs may be kept; confined or placed or left standing, which from use may have become offensive to persons residing in the vicinity, or to the public. (Emphasis added.)”

The above does not prohibit the operation of an auction barn and shipping pen within the City Limits of Kirbyville. The ordinances do attempt to regulate the manner of operation in order to maintain sanitation. There is evidence pro and con as to the sanitary preventive measures taken to prevent the operations of defendants’ business from becoming a nuisance.

The other points of error of plaintiff are:

“1. The trial court erred in refusing plaintiff’s motion for a temporary injunction since the plaintiff was merely attempting to preserve the status quo.
“3. The trial court erred in hearing and in giving weight to improper and irrelevant evidence introduced by the defendants as to precautionary and sanitary measures and a general exercise of care on their part in the operation of their business.
“5. The trial court abused its discretion in denying plaintiff’s motion for a temporary injunction since it was shown that defendants’ operation had been and could have been conducted in a manner which would not have so substantially interfered with the plaintiff’s right to the peaceful use and enjoyment of his home and property.
“6. The trial court abused its discretion in denying plaintiff’s application for a temporary injunction in that the plaintiff clearly established both a probable right and definite injury.
“7. The trial court abused its discretion in denying the plaintiff’s application for a temporary injunction since the condition complained of was of a recurring nature, any legal remedy thereby being inadequate.”

Each and all of plaintiff’s points of error take the position that they established a probable right and a probable injury as a result of a probable nuisance with an absolute right to a temporary injunction as against defendants to maintain a status quo. The last actual peaceable uncontested status which preceded the pending controversy was not in September of 1965, but was many years prior thereto. Certainly, plaintiff’s points of error, in effect, adopt the dissenting opinion of the Court of Civil Appeals in Central Hide & Rendering Co. of Wichita Falls v. Storey, 223 S.W.2d 81. At one place in his brief, plaintiff argues therefrom. The dissenting opinion in that case was not followed by the Supreme Court of Texas, reported in 226 S.W.2d 615. On the contrary, the majority opinion of the Court of Civil Appeals was upheld.

When the balancing of equities is not involved, the principles relied upon by plaintiff are well stated in Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953). In the instant case the trial court refused to issue the temporary injunction, considering the injury which may result to the plaintiff as slight in comparison to the injury caused the defendants and the public in general by enjoining the nuisance. The trial court followed the opinion in Storey v. Central Hide & Rendering Co., supra.

Each and all of plaintiff’s points of error are overruled.

Judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF HOUSTON, Texas, Appellant, v. Roy Calvin POWERS, Appellee.
    No. 11442.
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1967.
    Rehearing Denied Feb. 15,1967.

      William A. Olson, City Atty., Jay Howell, Senior Asst. City Atty., Houston, for appellant.
    Moore & Putnam, Gene E. Putnam, Houston, for appellee.
   PHILLIPS, Chief Justice.

This is a suit brought under Tex.Rev.Civ. Stat.Ann. Art. 6243e, Sec. 18 (1957), by Roy Calvin Powers against the Board of Firemen’s Relief and Retirement Fund Trustees of Houston, Texas. Powers sued the Board for a pension for total disability incurred in an accident in which he was thrown from a moving fire truck. The Board had denied his application for a pension. Powers appealed this decision of the Board to the Firemen’s Pension Commissioner and was again denied relief. Following the denial of relief by the Commissioner, Powers filed suit in the District Court of Travis County, Texas. After trial to the court, judgment was entered granting Powers a total disability pension.

We affirm.

Appellant Board is before this Court on five points of error, the first four, briefed together, are number one; the error of the court in overruling appellant’s plea in abatement pointing out that appellee had failed to allege that he had filed with the Board the certificates of disability required by Tex. Rev.Civ.Stat.Ann. Art. 6243e, Sec. 9, (1957). Points two and three complain of the court overruling appellant’s special exceptions, and his motion for judgment with reference to appellee’s alleged failure to file the abovementioned certificates. Appellant’s point four is the error of the court in entering judgment for appellee when there was no evidence that he had filed the abovementioned certificates of disability with the Board.

We overrule these points.

Tex.Rev.Civ.Stat.Ann. Art. 6243e, Sec. 9, (1957) provides as follows:

“Certificates of disability
Sec. 9. No person shall be retired either for total or temporary disability, except as herein provided, nor receive any allowance from said Fund, unless and until there shall have been filed with the Board of Trustees, certificates of his disability or eligibility signed and sworn to by said person and/or by the city or town physician, if there be one, or if none, then by any physician selected by the Board of Trustees. Said Board of Trustees, in its discretion, may require other or additional evidence of disability before ordering such retirement or payment aforesaid. * * * ”

Appellant contends that this statute should be construed to mean that more than one certificate must be filed, one by the claimant and one by the city or town physician. Should there be no city or town physician, then a certificate must be filed by any physician selected by the Board of Trustees.

In the case at bar, the appellee or claimant filed a certificate and one was filed by a physician chosen by the Board, however, no certificate was filed by the city physician and there was a city physician available at the time. Consequently, appellant contends that appellee has failed to comply with the requirement of the statute and that neither the administrative bodies of the courts involved have jurisdiction to grant him relief.

We do not construe the statute thus.

We read the statute to require that the claimant must file a certificate of disability with the Board of Trustees “and/or by the city or town physician, if there be one, or if none, then by any physician selected by the Board of Trustees.” Emphasis added.

Webster’s New International Dictionary, Second Edition, unabridged, defines and/or as meaning either and or or.

Thus we construe the statute to mean that either the certificate of the claimant or that of the town physician meets the requirements of the statute. If there is no town physician then either the certificate of the claimant or that of a physician designated by the Board will suffice. Any other construction would place a claimant at the mercy of the city and we do not believe that this is what the legislature intended. It is the general rule that the purpose of the legislation creating a pension plan is to be subserved by a broad and liberal interpretation of the act, and may not be defeated by a narrow and technical construction. 45 Tex.Jur.2d Constitutional and statutory provisions, Sec. 2 (1963) and the cases there cited.

Appellant’s point of error number 5 is that of the trial court in entering judgment for appellee when there was substantial evidence to support the decision of the Firemen’s Pension Commissioner denying appellee’s request for a pension.

We overrule this point.

The test that this Court must apply is whether the administrative decision finds reasonable support in substantial evidence. Board of Firemen’s Relief and Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965 (1951).

In viewing the testimony in its entirety, we find that Powers, age 26 and married, had been an exceptionally fine physical specimen who had done a great amount of physical work during his life. This not only included his work with the fire department, where his work was extremely strenuous requiring a strong and fit body, but included extra jobs that he took on his free time to supplement his salary. This latter work included landscaping in which he used a tractor with various attachments to move earth. In addition to this, Powers’ hobbies, which were horseback riding and spear-fishing in the Gulf with an aqua lung, required a strong body. To read the record before us is to get a picture of a strong, energetic person who worked very hard and relaxed with hobbies of a vigorous physical nature. His career also included service in the military forces including service overseas after which he was honorably discharged, however he remained in the Army Reserve Corps.

On June 1, 1959, Roy Calvin Powers became a trainee for the Houston Fire Department. He was required to take a pre-employment physical examination, and at that time was in top physical shape. In training, he practiced climbing ladders as high as five stories, rolling up hose, carrying ladders, carrying rolls of hose up ladders, jumping off fire trucks, catching fire plugs, carrying people out of buildings and down ladders. Powers never had any physical incapacity or trouble in performing these exercises. After three months, he became a probationary plug man and ladder man, which required participation in actual fire fighting. He would jump off the fire truck and begin unloading the hose connecting it to the fire plug. After the fire was extinguished, it was required that he sweep out the building, carry out furniture, chop out sheet rock, and then carry the furniture back into the building.

In March I960, he became a pipe and ladder man. It was his duty, as he jumped off the back of the fire truck, to carry a 50-pound roll of hose and hook it to the plug. After the fire was extinguished, he was required to roll up the wet hose and carry them to the pumper, where he then stacked them on the tailgate. These wet hose weigh 90 to 100 pounds each. Each fire usually required 30 pieces of fire hose and Powers stacked 15 of them while the other pipe and ladder man stacked the remainder. After the truck returned to the fire station, it was necessary for appellee to take the wet hose off the fire truck, roll them out, and place them in a dryer. Then after the hose were dried, he placed them in sacks along the wall of the fire station. The cleaning of the fire truck followed.

Appellee continued performing these duties for the Houston Fire Department until he was drafted into the United States Army in November 1960. After serving two years, he went back to work for the Fire Department as a pipe and ladder man. On his return, a physical examination revealed that he was in top physical condition. He continued working for the Fire Department the remainder of 1962 and all of 1963, performing all the required duties.

On January 6, 1964, he was working at night for the Fire Department when a box alarm came in. He jumped on the back of the pumper and the truck proceeded down Polk Street in Houston en route to the fire. As the truck entered the intersection, an ambulance, traveling at a high rate of speed, crashed into the front of the fire truck. Upon impact, Mr. Powers was thrown 30 feet from the fire truck, landing on his back in the middle of the concrete street. He was moved from the street and taken by private car to a hospital where, upon examination, it was determined he suffered an injury to his back and shoulders. He consulted his own physician, Dr. Thomas H. McGuire, because he was having considerable pain in his back and between his shoulders. He was placed on medication, and instructed to stay in bed. He was seen by Dr. McGuire once or twice a week until March. Then the District Chief came to see him and asked Mr. Powers to return to work, as the Fire Department was short of firemen. The Chief promised to look after him if he would go back to work.

On March 10, 1964, the second night ap-pellee was back at the station, he was called to a house fire. After the fire was extinguished, appellee was rolling up the wet hose when his back began “popping”. As he was lifting a 100-pound wet hose onto the fire truck, he felt like something hit him in his back, and he fell down and couldn’t get up. Mr. Powers finished the night at the station, and the next day went to see Dr. McGuire because of the pain in his back and numbness in his right leg. Ap-pellee has not worked in any capacity since the injury of March 10, 1964.

His pain would start at the lower portion of his back in the vicinity where his belt crosses his backbone and run down around his leg on the back side, and continue all the way down into the calf and into the heel and parallel around to the little toe of his foot. This pain occurred shortly after the second accident, and by 1965 both legs were affected by the same type of chronic pain. His legs become numb more frequently now. He wears a back brace continuously. The Army Reserve Corps gave him a medical discharge because of his physical condition. The Texas State Educational Department is paying for his education in college under the State program because of his being totally disabled. He is not able to work, nor can he do anything that involves manual labor. He can no longer jump off a fire truck, roll up a hose, lift a nozzle, man a plug, move furniture out of a house, move furniture back into a house, lift wet hoses, or clean up the fire truck at the end of the day, although if he were physically able, he would do so. Any prolonged sitting hurts his back and his legs become numb, and standing or walking for any prolonged period of time is impossible. Prior to the accident, he could press 120 pounds above his head and was an avid skindiver. He cannot do this now. He used to work with and ride on horses, train and trim them, prior to these accidents. He cannot ride a horse because of the jarring, and is not able to care for his animals.

Dr. Thomas H. McGuire, a specialist in neurological surgery since 1955, examined and treated appellee for these injuries. Dr. McGuire saw him every ten days until June 12, 1964. Dr. McGuire testified that appellee had numbness over the right foot, ankle, and back of his right leg, and had pain with limitation of motion in his back. He further testified that Mr. Powers had a possible ruptured disk with nerve root irritation.

Dr. McGuire sent Powers to Dr. James R. Oates, a physician who specializes in physical medicine and rehabilitation, who examined Powers on numerous occasions and was still treating him at the time of trial. Dr. Oates ran an electromyographic test on Powers which test showed that Powers had damage to his right first sacral nerve root which supplies major muscles of the right calf.

At first Dr. Oates found that the maximum circumference of Powers’ right calf was one fourth inch less than the left suggesting either atrophy of his muscle on the basis of disuse because of pain or damage to the muscle, because there had been damage to the nerve supply, or both. At a later examination Dr. Oates found that the right calf was one half inch smaller than the left concluding that there was some continuing atrophy of the muscles whose nerve supply had been damaged by the nerve root irritation. Dr. Oates prescribed a lumbosacral support garment for Powers’ back and advised him to wear it at all times. Dr. Oates testified that Powers’ condition would never improve and that the cause of the nerve root irritation was that a piece of disk had ruptured and further that Powers was totally disabled from performing the duties of a fireman.

The evidence relied upon by appellant is that of two doctors, one, Dr. W. H. Ham-rick the city physician and the other, Dr. J. Morris Tucker, to whom Powers had been referred by the Board.

Dr. Hamrick examined Powers once on April 28, 1964. From this examination, Dr. Hamrick concluded that Powers was not physically disabled and could resume his duties as a fireman. Dr. Hamrick did not measure Powers’ legs however he did a pin-prick test from which he concluded that Powers’ muscles were not seriously damaged.

Appellant contends that from this testimony (in addition to Dr. Tucker’s which will be discussed later) we have substantial evidence of Powers’ fitness and that this evidence is sufficient to sustain the Board’s findii gs. We cannot agree with this. Dr. Hamrick further testified under cross-examination that a doctor who had examined Powers several times would be in a better position to evaluate the case than one who had examined him only once. In addition, Dr. Hamrick testified that Powers’ condition could have developed at a date later from the examination that he had made. From the testimony of Dr. Oates, who had followed the case from the beginning through trial, this latter possibility becomes the reasonable probability.

Dr. J. Norris Tucker testified for appellant. He was the doctor who had examined Powers at the behest of the Board. His testimony was inconclusive one way or the other inasmuch as he felt that a correct diagnosis required a myleogram. Dr. Tucker also testified that he would not recognize Powers if he were to walk into the room. We know of no rule that requires a myleogram before we can consider testimony as to possible spine and/or muscle injury.

It is not our intention in summarizing the evidence here to show that such evidence admitted before the court preponderates against the administrative decision but that in viewing the record as a whole the evidence does not reasonably support the administrative decision.

We affirm the judgment of the trial court.

Affirmed.

O’QUINN, J., not sitting.


author: STEPHENSON, Justice.

text:
    UNIVERSAL UNDERWRITERS INSURANCE CO., Appellant, v. Ephram POTTER, Appellee.
    No. 6864.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 29, 1966.
    Rehearing Denied Jan. 25, 1967.

      Oldham & Lorance, Houston, for appellant.
    Helm, Jones & Pletcher, Houston, for ap-pellee.
   STEPHENSON, Justice.

This is a suit brought by plaintiff under the Workmen’s Compensation Act. Judgment was entered that plaintiff recover for total and permanent disability upon the answers of the jury to the issues submitted. The parties will be referred to here as they were in the trial court.

Plaintiff alleged that he received injuries to his right arm, shoulder and neck resulting in total and permanent disability. No specific injury was separately alleged nor was recovery sought for a specific injury. Defendant’s answer contained only a general denial and pleas that plaintiff had returned to work and suffered no diminution of earning capacity, that plaintiff’s injury resulted in only temporary and partial incapacity, and that if plaintiff was suffering any incapacity it was a result of other injury, disease or condition.

Defendant’s main complaint is in reference to the method of submission of the case to the jury. The trial court refused to submit an issue inquiring whether plaintiff’s disability was limited to the loss of use of his right arm, and submitted the case solely on the basis of a general injury with no mention made as to what part of plaintiff’s body had been injured. Defendant argues: That this permitted the jury to lump together a specific injury to the arm and a general injury to the shoulder, neck and chest. That the jury should have been asked whether the specific injury to plaintiff’s arm extended to and affected plaintiff’s body generally. That the jury should have been asked whether plaintiff sustained concurrent injuries to his arm and shoulder, neck and chest. That the jury should not have been permitted to consider any disability resulting from the injury to the arm in assessing general incapacity. That plaintiff should have been required to elect to recover for either a specific injury to the arm or a general injury to the shoulder, neck and chest.

It is important that several factors be kept in mind so that this case can be distinguished from others. This is not a case in which plaintiff has alleged an injury to a specific member of his body which extended to and affected other portions of his body so as to result in a general injury. Plaintiff in this case alleged that he received injuries to his arm, shoulder and neck. This is not a case in which plaintiff alleged that he received a specific injury and separately alleged a general injury, and then prayed for recovery under a general disability because of the combined effect of a specific and a general injury.

A plaintiff may plead his case as he elects to do so and the burden of proof is then upon him to prove his case as alleged. We have no points of error in this case that the answers of the jury were not supported by the evidence.

Plaintiff, having elected to base this cause of action solely on a general injury, it became the responsibility of defendant to allege and prove that plaintiff’s disability was limited to the loss of use of his right arm. In the absence of pleadings by defendant, it was not entitled to an affirmative submission of this defensive issue. The record does not reveal that defendant asked leave of the court to file a trial amendment. Under Rule 279, Texas Rules of Civil Procedure, the refusal of the trial court to submit this issue was not error. United Benefit Fire Ins. Co. v. Stock, Tex.Civ.App., 344 S.W.2d 941. We do not interpret plaintiff’s pleadings to allege a specific injury as well as a general injury as found by the Court of Civil Appeals in Texas Employers’ Ins. Ass’n v. Hevolow, 136 S.W.2d 931, in which instance it was held that a general denial would raise an issue as to limitation of incapacity to a specific member. These points are overruled.

Defendant’s second point of error is that the trial court erred in excluding a portion of the testimony of Dr. A. L. Delaney. The testimony of the plaintiff and the doctor called by him showed that the blow to plaintiff’s right arm was of sufficient force to cause injury to his neck and shoulder. While plaintiff was testifying on direct examination, the following transpired, Mr. Ellisor representing plaintiff and Mr. Lorance representing defendant:

“Q (By Mr. Ellisor) Mr. Potter, at this time will you raise your sleeve on your arm? Unloosen your sleeve there and raise it?
“MR. LORANCE: If the Court please, I have no objection to the plaintiff exhibiting himself to the jury, or his injuries to the jury; however, if he does that, I invoke my right to demand and have an examination of his injuries and of what he has exhibited by a doctor of my choice so that the doctor can come in and testify.
“THE COURT: Yes, sir.
“MR. ELLISOR: I don’t mind you having a doctor of your choice to ex~ amine what I am going to exhibit.”

According to the record, only plaintiff’s right arm was exhibited to the jury. Defendant asked Dr. Delaney to examine plaintiff. A bill of exception, which is the basis for this point of error, shows that Dr. Delaney examined plaintiff’s shoulder and neck in addition to his arm, and that this doctor would have testified that he found plaintiff had no disability, or loss of use of, or incapacity in the neck, the right shoulder or the rib cage or the thoracic spine. The trial court made the following ruling when plaintiff objected:

“THE COURT: All right. Now, the Court’s ruling is that any examination that the doctor made as of this date to the whole of the right arm of the plaintiff is admissible because the plaintiff, through his attorneys, exhibited the whole of the arm to the jury; but, as to any other examination the doctor made as of this date, to any other portion of his body, I am sustaining the objection of the plaintiff.”

Neither of the parties to this appeal has found a case directly passing upon this point. Art. 8307, § 4, Vernon’s Ann.Civ. St., gives the Industrial Accident Board the authority to order a claimant to submit to a physical examination, and the cases have extended this authority to the trial court to which the compensation claim has been appealed. The general rule is that a court’s ruling on a motion to require a party to submit to a physical examination will not be reviewed except to determine whether there was an abuse of discretion on the part of the court, and that the burden of showing that the court has abused its discretion in refusing to grant such motion rests upon the appellant. United Employers Casualty Co. v. Curry, Tex.Civ.App., 152 S.W.2d 862; Potomac Ins. Co. v. Milligan, Tex.Civ.App., 335 S.W.2d 648.

We hold that the- same rule of law applies to the situation before us, and that the type of examination that will be permitted, and the extent of the testimony that will be allowed are matters which should be left largely to the discretion of the judge who has the parties and the emotional factors before him. We think it is clear from a careful reading of the record that the attorney for defendant asked that a doctor of his choice be permitted to examine the injuries of the plaintiff exhibited to the jury, and that the attorney for plaintiff agreed that such a doctor could examine what he was going to exhibit, and that plaintiff exhibited only his arm. We find no abuse of discretion on the part of the trial court in limiting the testimony to the examination of the arm which was exhibited. The point is overruled.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    Hugh ARMSTREET et al., Appellants, v. Billy Earl GREER et al., Appellees.
    No. 239.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 26,1967.
    Rehearing Denied Feb. 16, 1967.

      Musslewhite & Musslewhite, Benton Musslewhite, Lufkin, for appellants.
    McLeroy & McLeroy, Tom McLeroy, Center, for appellees.
   DUNAGAN, Chief Justice.

This appeal is’from a summary judgment granted the defendants below. Suit was instituted in the District Court of Shelby County, Texas, by Hugh Armstreet and wife, Zellene Armstreet, and the Estate of Robert Hampton Armstreet, deceased, appellants, seeking damages against Billy Earl Greer and O. L. Greer and wife, Louise Greer, appellees, for the alleged wrongful death of appellants’ son, Robert Hampton Armstreet, who received fatal injuries in an automobile collision near Shel-byville, Shelby County, Texas, on November 10, 1964. It was alleged by appellants Hugh Armstreet and wife, Zellene Arm-street, that on the date aforesaid their son, Robert Hampton Armstreet, was driving an automobile on Farm Road No. 417, a two-lane roadway. As he approached a rise, he was suddenly confronted by two oncoming automobiles traveling side by side at a tremendous rate of speed, occupying both lanes of traffic, apparently engaged in drag racing. One of the automobiles was being operated by Osborne Adams, Jr. and the other by appellee, Billy Earl Greer, and there were other occupants in both vehicles. It was alleged that appellants’ decedent, finding himself faced with this emergency, had no alternative but to collide with the Adams’s vehicle traveling in his lane of traffic. As a result of the collision, both Robert Hampton Armstreet and Osborne Adams, Jr. received fatal injuries. It was further alleged that following the accident, appellee Billy Earl Greer left the scene of the accident without stopping to render aid. Actionable negligence and gross negligence were alleged against the appellees. Damages were sought under the Wrongful Death Statute and the Survival Statute. Appellees answered, denying the allegations contained in appellants’ petition and alleging that appellants’ decedent, Robert Hampton Armstreet, was guilty of contributory negligence on the occasion in question, and alternatively, that the collision was the result of an unavoidable'accident. Subsequently, appellees filed a motion for summary judgment, asserting as a basis therefor that in December, 1964, the appellants, for a consideration of $7,-500.00, had executed and delivered to the Estate of Osborne Adams, Jr., deceased; O. F. Adams, Sr. and Mrs. O. F. Adams, Sr., a “full, final and complete Release” of any and all claims and causes of action by reason of the death of Robert Hampton Armstreet. Appellees assert that inasmuch as Osborne Adams, Jr. and Billy Earl Greer were joint tort-feasors on the occasion made the basis of the suit, the giving of the release by appellants had the effect of releasing appellees. Appellants concede that Osborne Adams, Jr. and Billy Earl Greer were joint tort-feasors. In view of the fact that the Release is the focal point for the determination of this appeal, it is reproduced herein as it appears in the Transcript. A photocopy of the release was attached to appellees’ motion for summary judgment and the motion was also supported by an affidavit made by appellees’ attorney.

Appellants replied to appellees’ motion for summary judgment, filing what was designated as their first supplemental petition and an affidavit made by appellant, Hugh Armstreet. Briefly, in his affidavit, Hugh Armstreet asserted that the release relied upon by appellees had been executed and delivered by appellants to a representative and agent of an insurance company representing Osborne Adams, Jr. and the latter’s parents. According to the affidavit, such representative advised him that by signing such release he would not be giving up any cause of action he might have against the Greers and that the law was such that they would be able to sue the other parties, assuming they could establish actionable negligence and damages; that Hugh Armstreet and wife relied upon such representations and were induced by such representations to execute the release and had such representations not been made, no release would have been executed; that the Armstreets had not intended to release their cause of action against appel-lees; and that such release was procured by fraudulent representations and should be rescinded.

No exceptions were leveled by appellees to the supplemental petition or affidavit. Upon a hearing of appellees’ motion for summary judgment, the District Court sustained it and rendered the judgment from which this appeal has been perfected.

Appellants bring forward six points of error, the first three of which assert that the summary judgment was improper because there were genuine issues of fact raised by the pleadings and affidavit as to (a) whether the parties to the release intended to preclude a suit against the non-settling tort-feasors; (b) whether the amount paid for the release was full or partial payment to appellants for their damages; and (c) whether the release was procured by fraud or over-reaching. The remaining points assert that, as a matter of law, the release did not preclude suit by the estate of Robert Hampton Armstreet, deceased, since the estate was not a party to the release; the release did not bar appellants from seeking punitive damages from appellees; and the pleadings of ap-pellees did not permit the assertion of an affirmative defense based upon the execution of the release. In view of the disposition we make of the appeal, it is unnecessary to discuss or pass upon the last three points of error assigned.

If admissible, appellants, in their reply to the motion for summary judgment, undoubtedly raised issues of fact with respect to the validity of the release and its effect on their action against appel-lees. The duty of the court upon a hearing of a motion for summary judgment is to determine if there are any issues of fact to be tried and not to weigh the evidence or determine its credibility and thus try the case on the affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, (1952). It is well settled that on a motion for summary, judgment, under Rule 166-A, Texas Rules of Civil Procedure, the burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. The evidence must be viewed in the light most favorable to the party opposing the motion. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, (S.Ct., Texas, 1965). It is further well settled that when the affidavits or other summary judgment evidence disclose facts which render the position of the movant untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the party against whom the judgment is sought. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233.

It is not difficult in this case to conclude that under the pleadings and affidavit the appellants clearly raised issues of fact as to the parties’ intentions with respect to the release and, if the evidence is admissible, the trial court erred in granting summary judgment. This brings us to the crucial question as to whether parol evidence under the record here is admissible to show that appellants, in executing the release in question, did not intend to release the appellees who had not participated in the settlement. It is our view that under the Texas decisions, such evidence is admissible and the trial court erred in sustaining appellees’ motion for summary judgment.

It is the general rule followed by numerous Texas decisions that a valid release of one or more joint tort-feasors by an injured party will release all other tort-feasors contributing to the wrong, unless the language of the release indicates an intention of the parties that the non-settling parties are not discharged. Riley v. Industrial Finance Service Company, 157 Tex. 306, 302 S.W.2d 652 (1957) ; City of Coleman v. Kenley, 168 S.W.2d 926, (Tex.Civ.App., 1943, ref., w. o. m.). The matter of release, of course, is a matter of intention and generally, in the absence of fraud, accident, or mutual mistake, parol evidence is inadmissible to contradict the terms of a written instrument that on its face is complete and unambiguous. Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S.W. 322, (1905). In some instances, however, where the release is silent on a controverted point, parol evidence may be offered to supply its imperfections or supply those things about which it makes no declaration. Fort Worth & Denver City Ry. Co. v. Larson, 169 S.W.2d 260, (Tex. Civ.App., 1943, ref., w. o. m.) and Ditto v. Piper, 244 S.W.2d 547, (Tex.Civ.App., 1951, ref., n. r. e.).

It is apparent that the release in question is silent as to the appellants’ intentions with reference to releasing appellees. Ap-pellees were neither expressly included within the release, nor were they excluded therefrom. Further, nothing contained in the release indicates whether the parties intended the recited consideration to be a partial or full satisfaction of all of appellants’ damages and claims. Aside from the contentions of appellants that the extrinsic evidence as to the parties’ intentions was admissible in view of the allegations of fraud and misrepresentation, we believe that the Texas decisions have relaxed the parol evidence rule in cases such as this to permit proof that a release of one joint tort-feasor was not intended to release another. Eckel v. First Nat. Bank of Fort Worth, 165 S.W.2d 776, (Tex.Civ.App., 1942, err. ref.); Pearce v. Hallum, 30 S. W.2d 399, (Tex.Civ.App., 1930, err. ref.) ; and El Paso & S. R. Co. v. Darr, 93 S.W. 166, (Tex.Civ.App., 1906, err. ref.).

In the Eckel case, cited above, Eckel was injured in an explosion which was alleged to have been jointly caused by two defendants, Weir and Lone Star Gas Company. Upon a trial of the case, Eckel obtained a judgment in the amount of $15,000.00 against both defendants, jointly and severally. The gas company appealed and the case, as to it, was reversed and remanded for a new trial, leaving undisturbed the judgment against Weir. Thereafter, Eckel entered into a compromise settlement with the gas company, executing a written release, under the terms of which he was paid the total sum of $3,200.00. Subsequently, the cause of action as to the gas company was dismissed. Eckel then sued out a writ of garnishment against the First National Bank of Fort Worth, seeking to satisfy the judgment against Weir by a claimed indebtedness owing by the bank to Weir, contending that the judgment against Weir was valid and subsisting. Weir intervened upon the ground that the claim against him had been discharged and released as a result of the compromise settlement between Eckel and the gas company. The court permitted oral testimony from Eckel that, in executing the compromise settlement agreement, he did not intend to release Weir. However, the court found that regardless of the oral testimony, the release, as worded, constituted a release of the entire cause of action and all claims of any kind and character and therefore constituted a release as to both defendants. The Court of Civil Appeals reversed and remanded the cause, holding that the parol evidence was admissible to show that the parties did not intend to release those not participating in the settlement. While the Court recognized that there were some Texas decisions holding that in order to preserve the action against non-settling parties, the release itself must show a reservation of rights against those not expressly released, (citing Elston v. City of Panhandle, 121 Tex. 553, 50 S.W.2d 1090, and Pennington v. Bevering, Tex.Com.App., 17 S.W.2d 772) it declined to follow the cited decisions and stated:

“However, it was specifically held by this court in Pennington v. Bevering, Tex.Civ.App., 9 S.W.2d 401, and by the Dallas Court of Civil Appeals in Pearce v. Hallum, 30 S.W.2d 399, that parol evidence is admissible to show that the parties did not intend to release those not participating in the settlement. Writs of error were refused by the Supreme Court in both cases. * * *
“We conclude that our Supreme Court, by refusing writs of error in the two cases just cited, has established the rule which should be followed in Texas.”

In Pearce v. Hallum, supra, the plaintiffs, V. F. Hallum and wife, sued Pearce to recover damages for fatal injuries received by their six-year old son when the Pearce vehicle in which he was riding collided with a fire truck operated by the City of Dallas. Plaintiffs entered into a general release with the City of Dallas, the release reciting that it was the desire of the City to defray the funeral expenses incurred by the Hallums as a result of said accident and, in consideration of the payment of $465.50, plaintiffs released the City of Dallas “from any and all liability in connection with said accident.” When Pearce was sued, he pleaded the above described release as a bar to action against him as a joint tort-feasor. The action of the trial court in excluding the release and voucher issued in payment therefor, on the grounds that the City of Dallas was not a joint tort-feasor, was reversed by the Court of Civil Appeals which held that the city was a joint tort-feasor and that whether the settlement described in the release was a full or partial settlement was a question of fact to be determined by the trier of facts. The court held that the intention of the parties in this situation could be shown by parol evidence, and cited the policy of the law which looks with favor on compromises. The court stated that if an injured party could not accept a partial reparation for an injury from one jointly liable to him without releasing other joint tort-feasors, the policy of the law would be defeated. The court further stated that in this jurisdiction the rule was definitely settled where an injured party makes a settlement with one jointly liable for an injury, it is always an open question whether the same was intended to be in full or only partial settlement. If it is intended in full settlement, all joint tort-feasors would be discharged thereby. We can see no material distinction between the holding in the Pearce case and the case now before us.

In El Paso & S. R. Co. v. Darr, supra, plaintiff, a car inspector in the employ of the railroad company, was injured on a transfer track used jointly by his employer and the El Paso & S. R. Co. He accepted $500.00 from his employer and gave a general release therefor. Although the release contained words which expressly reserved plaintiff’s cause of action against any other company, growing out of the accident, the court held that parol eyidence as to the intention of the parties to the release was clearly admissible.

Admittedly, there are decisions in this jurisdiction wherein contrary results have been reached on questions similar to the one now before this court. Appellees rely principally upon Burge v. Fleming, 261 S.W.2d 215, (Tex.Civ.App., 1953, no writ); Hunt v. Ziegler, 271 S.W. 936, (Tex.Civ. App., 1925, aff., 280 S.W. 546) ; and Elston v. City of Panhandle, 121 Tex. 553, 50 S.W. 2d 1090, (1932). Assuming there are conflicts between the cases last cited and our decision here, we nevertheless, believe that the true rule deducible from the many Texas decisions is that, even in the absence of fraud, accident or mutual mistake, if a release is silent as to the parties’ intentions with reference to releasing the non-settling tort-feasors, parol or extrinsic evidence is admissible to show the true intent of the parties. We have noted that both parties have cited the case of Cannon v. Pearson, 383 S.W.2d 565, (Texas S.Ct., 1964). While the question decided therein is not the same as that before us, the court in the Cannon case, by way of dictum, in discussing the parol evidence rule, appears to recognize that in Texas the rule will be relaxed to permit proof that a release of one joint tort-feasor is not intended to release another, citing Eckel v. First Nat. Bank of Fort Worth and Pearce v. Hallum, supra.

Indisputably, under proper allegations of fraud, accident or mutual mistake, parol or extrinsic evidence is admissible to establish the true intent of the parties regardless of the wording of the release. It follows, therefore, that summary judgment should not have been granted under the record in this case because parol or extrinsic evidence is admissible to establish the true intent of appellants, Robert Hugh Armstreet and wife, Zellene Arm-street, in executing the release. J. Rosenbaum Grain Co. v. Mitchell, (Tex.Civ.App.) 142 S.W. 121, err. ref., 105 Tex. 160, 145 S.W. 1188. Furthermore, this result should be reached for the additional reason that all doubts as to the existence of a genuine issue of fact upon a motion for summary judgment should be resolved in favor of the parties against whom the judgment is sought.

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

      . Art. 4671, et seq., Revised Civil Statutes of Texas, 1925.

      . Art. 5525, Revised Civil Statutes of Texas, 1925.

      . STATE OF TEXAS 1 COUNTY OF SHELBY j-
      WHEREAS, on the or about 10th day of November, 1964, on Farm Road No. 417, in Shelby County, Texas, a motor vehicle being driven by O. F. Adams, Jr., and owned by O. F. Adams, Sr., father of the said O. F. Adams, Jr., was involved in a collision with a motor vehicle being driven by Robert Hampton Armstreet, which said collision resulted in the deaths of both the said O. F. Adams, Jr., and the said Robert Hampton Armstreet;
      WHEREAS, Robert Hampton Arm-street, at the time of his death was a minor child whose parents were Robert Hugh Armstreet and Zellene Armstreet, husband and wife, of Shelby County, Texas, and the said Robert Hugh Arm-street and wife Zellene Armstreet, assert that said collision and the death of their said minor son, resulted from facts which would cause O. F. Adams, Sr., his wife, Mrs. O. F. Adams, Sr., and the estate of O. F. Adams, Jr., deceased, to be liable therefor:
      WHEREAS, the said O. F. Adams, Sr. and Mrs. O. F. Adams, Sr., and the estate of O. F. Adams, Jr., deceased and each of them have denied, and still deny, any liability whatever on account of any damages to anyone arising out of said collision because of bodily injuries to, and the death of, the said Robert Hampton Armstreet, or because of any property damage which may have been suffered by any person, firm or corporation, as a result of said collision, but, nevertheless, the said O. F. Adams, Sr., Mrs. O. F. Adams, Sr., and the estate of the said O. F. Adams, Jr., deceased, have agreed, in order to avoid the expense and harassment of litigation and to buy their peace, and for no other reason, they will jointly pay to the said Robert Hugh Armstreet and wife, Zellene Armstreet, the total sum of $7,500.00, such agreement being with the express understanding that neither such agreement, nor this instrument, nor any payment made by virtue hereof, is to be considered as or adopted to be used as, any admission whatever of any liability whatever on the part of the said O. F. Adams, Sr., Mrs. O. F. Adams, Sr., or the estate of O. F. Adams, Jr., deceased, or any one or more of them, to any person, firm or corporation whatever on account of, arising out of, or having to do with, any alleged damages to anyone as a result of said collision between said motor vehicles; and
      WHEREAS, said sum of SEVEN THOUSAND, FIVE HUNDRED AND NO/100 DOLLARS, IN CASH, HAS BEEN PAID, CONTEMPORANEOUSLY WITH THE EXECUTION hereof, to the said Robert Hugh Armstreet and wife, Zellene Armstreet, by the said O. F. Adams, Sr., Mrs. O. F. Adams, Sr., and the estate of O. F. Adams, Jr., deceased.
      NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that we, Robert Hugh Armstreet, and wife, Zellene Armstreet, and each of us, for and in consideration of the premises and the payment to us of the sum of SEVEN THOUSAND, FIVE HUNDRED AND NO/100 ($7,500.00) receipt of which is hereby acknowledged and confessed, do hereby fully and finally release, acquit and forever discharge O. F. Adams, Sr., Mrs. O. F. Adams, Sr., and the estate of O. F. Adams, Jr., deceased, of and from any and all and causes of action, founded and unfounded, known and unknown, which we could or might assert, and from any and all liability whatever, of every kind and character, if any, (including but [sic] limited to, claims for personal injuries to Robert Hampton Armstreet which might have survived to the parties hereto, damages for the wrongful death, if any, of the said Robert Hampton Armstreet, and any and all property damage) arising out of or having to do with the above described collision which occurred on or about the 10th day of November, 1964.
      Witness our hands this the _ day of December, A.D., 1964.
      Robert Hugh Armstreet
      Zellene Armstreet
      (Standard form Joint Acknowledgement)


author: WERLEIN, Justice.

text:
    The CITY OF HOUSTON, Texas, Appellant, v. Mrs. Nancy BOECHER, a Feme Sole, Appellee.
    No. 14949.
    Court of Civil Appeals of Texas. Houston.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.

      Wm. A. Olson, City Atty., and Homer T. Bouldin, Trial Supervisor, Houston, for ap-
    William R. Powell and E. J. O’Neill, Houston, Foreman, Dyess, Prewett, Henderson & Cantey, and O’Neill & McKellar, Houston, of counsel, for appellee,
   WERLEIN, Justice.

Appellee, Mrs. Nancy Boecher, brought this suit to recover damages for personal injuries sustained by her at about 6 o’clock p. m. on May 26, 1962, when she fell while walking in a westerly direction along and over the sidewalk on the south side of the 700 block of McGowen Avenue, Houston, Texas. The sidewalk where she fell was broken into a number of separate pieces of concrete, some large and some small. It had been in such condition for many years, but was in a little worse condition in 1962 than during the earlier years that she had used it. She had walked over this broken sidewalk many times, at least as many as one hundred times.

She testified that on this particular occasion she stepped on one of the broken pieces of concrete, and that it slipped or tilted downward causing her to lose her footing and fall; that the piece of concrete upon which she stepped was about a foot wide nearest her and narrowed down to kind of a point, but was large enough for a man to step on it; that there was nothing about its appearance which would indicate there was anything wrong with it, and that it was level; that she could not tell whether the sidewalk was in exactly the same condition at all times or whether it was in the same condition at the time she fell that it was in a week before when she had walked over it, but it looked the same; that “you don’t always step on the same stone each time you go through there.” She further testified that she knew the sidewalk was broken and in bad condition but she could not tell by looking at it that the piece she stepped on would tilt forward; that she did not think of it as dangerous; that she could see as well as anyone else but couldn’t see underneath the stones to see what the condition might be there.

The jury found that the broken area of the sidewalk where appellee fell constituted a defective condition; that the City officials, agents and employees knew, or in the exercise of ordinary care should have known, of the existence of the broken area of the sidewalk; that appellant, its officials, agents, servants and employees, by the exercise of ordinary care, should have known of the existence of such broken sidewalk for such length of time as to have enabled the City, in the exercise of ordinary care, to have repaired said unsafe condition, and that in failing to repair the sidewalk they did not exercise that degree of care that a person of ordinary prudence would have done under the same or similar circumstances, and that such failure was a proximate cause of appellee’s injuries.

The jury found that appellee did not fail to keep such lookout as would have been kept by a person of ordinary prudence, in the exercise of ordinary care; that appellee did know or in the exercise of ordinary care should have known of the condition of the sidewalk in question; that she did not appreciate, or in the exercise of ordinary care should have appreciated, the full extent of the danger involved in the use of the sidewalk in question, and that her fall was not the result of an unavoidable accident.

Appellant in substance contends that the court erred in not sustaining its motions to render judgment in its favor and also in failing to render judgment non obstante veredicto for the reason that the condition of the sidewalk was open and obvious to ap-pellee and that as a matter of law she should have known and appreciated the dangers incident to walking on said sidewalk. Appellant further asserts that the evidence conclusively shows that appellee was guilty of negligence proximately causing her injuries, and that the condition complained of by her was as easily perceptible to her as it would have been to appellant. All of appellant’s points are “no evidence” points.

Appellee asserts that this is not an ordinary slip and fall case. Mrs. Boecher testified that she did not slip on the concrete, did not stump her toe or hang her heel; that she just stepped on the piece of concrete and it slipped forward and her foot went along with it, and that she did not stumble. She admitted that she had been over the sidewalk many, many times and knew its general condition as being a broken sidewalk, but she did not know that the piece of concrete upon which she stepped would move downward, and did not know what was underneath such piece of concrete. It is appellee’s position that there was a latent defective condition which ap-pellee didn’t know existed and did not appreciate or consider dangerous. It is appellant’s contention that whatever condition was there was as open and obvious to her as to anyone else, including the officers, agents, servants and employees of the City. There is no evidence that she had ever stepped on this particular piece of concrete before or that any other piece of concrete that she had stepped on in using the sidewalk had ever given way or slid or moved downward.

The law is well settled that it is the duty of a municipal corporation to exercise ordinary care to maintain its streets and sidewalks in a reasonably safe condition for public use. Dozier v. City of Gatesville, 121 Tex. 389, 48 S.W.2d 971; City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927; City of Austin v. Daniels, 1960, 160 Tex. 628, 335 S.W.2d 753, 81 A.L. R.2d 1180; 27 A.L.R. 927; 28 Tex.Jur.2d 255, Highways and Streets, § 214, and authorities cited. The general broken condition of the sidewalk had existed for such a long period of time that the City was charged with notice of its condition.

Ordinarily actual notice to the City of the condition of a sidewalk is not necessary. It is sufficient if those charged with the supervision, control and superintendence of the sidewalk, by the exercise of reasonable care and diligence, could have known of the defective condition. Whether the City’s knowledge of the defect was reasonably acquired in time to have effected a remedy is a question of fact for the jury’s determination. City of Waxahachie v. Harvey, 255 S.W.2d 549, Tex.Civ. App., 1953, error ref., n. r. e.; Garrett v. City of Wichita Falls, 329 S.W.2d 491, Tex. Civ.App.1959, n. w. h.; 40 Tex.Jur.2d, p. 330, § 640. In the instant case the jury found that the City by the exercise of ordinary care should have known of the broken sidewalk for such length of time as to have enabled it in the exercise of ordinary care to have repaired the unsafe condition. The evidence amply supports such finding. Obviously, if the City had repaired the sidewalk properly or constructed a new sidewalk, appellee would not have been injured.

The question arises, however, whether it was necessary for the City to have notice of the particular defective condition which caused appellee to fall. It has been held that notice that a sidewalk is generally defective will charge the City with notice of particular related defects therein at that point. In 63 C.J.S. Municipal Corporations § 831, pp. 171-172, it is stated:

“The fact that the municipality has notice that a sidewalk or way at a particular point is generally defective will charge it with notice of particular defects therein at that point, provided the general defect is of the same general character as the particular one which causes the accident, or the latter is a usual concomitant of the former. Thus, notice that a particular board in a plank walk is loose or rotten need not be brought home to the municipality if there is sufficient to charge it with notice of the general condition of the walk.”

In City of Dallas v. Moore, 32 Tex.Civ. App. 230, 74 S.W. 95, 1903, the Court said:

“Actual notice of the defect and the dangerous condition of the street.upon the part of the city was not necessary to be shown in order to hold it liable. If those agents of the city who are charged with supervision, control, and superintendence of the streets could, by the exercise of reasonable care and diligence, have known of the defective condition, the city will be charged. If there are apparent and obvious defects so near and closely related to a condition which is apparently safe, but in fact defective, that an investigation of the former would lead to a knowledge of the latter, then it may be said that the city should take notice of such latter defect.”

We are of the view that in the instant case the fact that the City had notice that the sidewalk was generally defective charged it with notice of particular defects therein at that point, since the general defective condition was of the same general character as the particular defect which caused the accident, the latter being a usual concomitant of the general defective condition existing. The City, which was charged with the duty of maintaining sidewalks in a reasonably safe condition for public use, failed in such duty since the sidewalk in question was not in a reasonably safe condition for public use.

Appellant contends that the condition existing was open and obvious to ap-pellee. It is true that the general broken condition of the sidewalk was open and obvious. Had appellee stumbled over some broken piece of concrete, or stumped her toe or caught her heel and fallen as a result thereof, we would not hesitate to hold that the condition was open and obvious to her. Here, however, there was a latent condition not open and obvious in that there was nothing to indicate to appellee that the piece of concrete in question would give way under her weight and slide forward or downward. Appellant did not introduce any evidence and there is nothing in the record to impeach the testimony of appellee. Her testimony was that she didn’t think of it as being dangerous. In other words, she did not appreciate or realize the danger. We cannot say that she was charged in law with knowledge of the particular defect and realization and appreciation of the danger of stepping on the particular defective piece of concrete. Halepeska v. Callihan Interests, Inc., Tex.Sup.1963, 371 S.W.2d 368; McKee v. Patterson, 1S3 Tex. 517, 271 S.W. 2d 391.

In the cases of Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; and Wesson v. Gillespie, Tex.Sup.1964, 382 S. W.2d 921, relied upon by appellant, the condition was a static one that was patently open and obvious. In the instant case there was a particular defective condition which was not open and obvious to one stepping on the piece of concrete although the general broken condition of the sidewalk was open and obvious. The case of Rosas v. Doreen, 402 S.W.2d 813 (Tex.Civ.App., Dallas 1966, n. w. h.), is much in point. In that case, in which a summary judgment was granted the defendant, the judgment was reversed and the cause remanded. The plaintiff in such case pleaded that when he reached the 2700 block of McKinney in Dallas, Texas, he observed an area of recent construction, and from all indications it appeared as though he could safely cross the unguarded area; that he walked safely over the concrete, when a piece of concrete, not visible to plaintiff, turned and twisted, causing plaintiff to suddenly and abruptly fall into a latently, unseen hole. The plaintiff swore in his affidavit that “the condition of the property was not open and obvious to all, neither was it open and obvious to myself in that it seemed I could safely cross the unguarded area. Furthermore, I did not recognize or appreciate the dangers and the risk involved in that, I was lured (sic) into a sense of security. I did not believe there would be danger involved and the possibility of injury was latent. Furthermore, I did not have full knowledge of the danger or risk involved when I entered the area of construction.” The court held that appellant’s admissions, standing unaided, were not sufficient to establish an absolute defense under the doctrine of volenti non fit injuria.

The testimony of appellee in the instant case is to the effect that she did not know the condition of the stone she stepped on and that she did not appreciate or consider the condition existing as dangerous. The jury found that appellee did not appreciate “or in the exercise of ordinary care should have appreciated the full extent of the danger involved in the use of the sidewalk in question.” We cannot say as a matter of law that appellee was charged in law with such knowledge, realization, and appreciation.

Judgment affirmed.