author: DIXON, Chief Justice.

text:
    Joe HOWELL, Appellant, v. A. F. BOWDEN, Appellee.
    No. 16149.
    Court of Civil Appeals of Texas. Dallas.
    March 29, 1963.
    Rehearing Denied June 14, 1963.

      Chester A. Oehler, Dallas, for appellant.
    Leake, Henry, Golden, Burrow & Potts, Dallas, for appellee.
   DIXON, Chief Justice.

A. F. Bowden, plaintiff in the trial court sued appellant Joe Howell for accounting and settlement of a partnership; and for damages alleged to have resulted from appellant’s breach of his fiduciary duties as a partner and trustee both before dissolution and thereafter during the winding up period.

A duly appointed receiver has paid the sum of $58,675.68 into the registry of the court, which sum represents the net proceeds of the sale of the tangible and physical assets of the partnership. The money awaits distribution following final judgment.

After a jury verdict judgment was entered in favor of appellee for the sum of $29,337.84, being one-half the amount paid into the court by the receiver; and for the further sum of $54,491.88, being an award as damages for wrongful termination of the partnership. The judgment provides that appellant’s one-half of the money in the registry of the court shall be applied on the $54,491.88 leaving a balance of $25,154.04 principal on the judgment in favor of ap-pellee.

FACTS

Appellant and appellee, formerly close friends, agreed in 1956 to form, and they did form, a partnership under the name Tex-O-Koma Sales Company to act as manufacturers’ agents in selling electronics equipment. Each paid in $2,000.00 as his initial capital investment. Appellant devoted his full time to the business. Appellee was a jet pilot in the Air Force, so he devoted only part of his time to the business— during his leave time, after duty hours, etc. He was to share losses, but until he retired from the Air Force he was to receive only such part of the profits as appellant should allocate to him. After his retirement from the Air Force appellee was to devote his full time to the business and share equally in the profits.

In 1956 the business lost $795.11, which loss was shared equally by the partners.

In 1957 the business made a profit of $17,801.50, of which $16,199.06 was allocated to appellant and $1,602.44 to appellee. In 1958 the profits were $31,349,09, of which $27,849.09 was allocated to appellant and $3500.00 to appellee.

Appellee resigned from the Air Force and on January 1, 1959 began to devote his full time to the partnership business. The capital accounts were balanced as of the above date. In 1959 the profits were $49,-879.44, which amount was divided equally by the partners.

The company bank account was in the name of both partners and their wives. Any one of the four had authority to write checks. A certificate was filed in the Assumed Name Records of Dallas County, Texas showing that Tex-O-Koma was a partnership composed of appellant and ap-pellee. Income tax returns for the company were filed in 1956, 1957, 1958 and 1959 showing the company to be a partnership.

In November or December 1959 dissension arose between the partners. On March 5, 1960 appellant withdrew $5,000.00. At the same time he caused a second set of books to be prepared. On March 15, 1960 appellee, who had been in Albuquerque, New Mexico on business, came to the home office in Grand Prairie, Texas, to find the books and records gone, no monthly statement available for February and the bank account exhausted. Upon inquiry appellee was informed by appellant that the books were at the Internal Revenue Office. This was not true. A quarrel took place. Ap-pellee made a buy or sell offer. Appellant made a counteroffer.

Appellant then changed the locks on the office, took sole control of the office, the telephone numbers, the address of the business and made representations that thenceforward Tex-O-Koma would be carried on by him as a sole ownership. He also negotiated new agreements from manufacturers in which he was to act as agent instead of the partnership. He organized a corporation known as Howell Sales Company which took over most of the assets of the partnership, including the telephone, office address, etc.

This suit was filed April 11, 1960. On May 11, 1960 a receiver was appointed by agreement of the parties. The receiver collected the assets, except a few accounts, paid the money into the registry of the court, and was discharged.

Among the fifteen numbered findings of the jury were these: (1) On or before January 1, 1959 the parties agreed that all net profits resulting from monies collected after January 1, 1959 should be divided equally; (2) appellant wrongfully terminated the business relationship between the parties; (3) appellee suffered damage as a direct and proximate result of such wrongful termination; (4) the damage was in the amount of $57,500.00; (9) appellant was not justified in changing the locks on the office of Tex-O-Koma Sales Company; and (10) appellee did not terminate the partnership on March 15, 1960.

Appellee filed a remittitur of $3,008.82, thereby reducing the judgment for damages to $54,491.88.

OPINION

We shall first consider appellant’s tenth point on appeal in which he complains that (1) there is no jury finding that a partnership existed; (2) there is no jury finding of the profits; and (3) no finding as to how much appellant was to receive.

We see no merit in this point. Appellee pled an equal partnership. Appellant did not plead a sworn denial of the partnership as required by Rule 93(f), Texas Rules of Civil Procedure. Therefore the partnership stands as admitted. Coulson v. Alvis Auto Rentals, Tex.Civ.App., 352 S.W.2d 849; Foster v. Pace Packing Co., Tex.Civ.App., 269 S.W.2d 929.

Further, the undisputed facts as hereinbefore set out, most of them admitted by appellant or disclosed by exhibits prepared and signed by appellant, show conclusively that the business was a partnership.

The evidence does not raise issues requiring jury findings as to profits or as to how much appellant was to receive. The company records, kept by appellant or under his supervision, show the material facts beyond dispute. The judgment provides that the partners are to share tangible or physical assets equally. Appellant’s share is merely a matter of computation based on the records. Anyway appellant did not request submission of an issue inquiring how much he was to receive, so he cannot complain now that no finding was made. Appellant’s tenth point is overruled.

'In his first point appellant asserts that the trial court erred in that the judgment seeks to enforce an oral agreement not to be performed within a year, therefore is violative of Art. 3995(5), Vernon’s Ann.Civ.St. We do not agree for these reasons:

(1) Appellant and appellee entered into a verbal contract to form a partnership. They did form a partnership — a status created by their performing their agreement. Glasscock v. Price, 92 Tex. 271, 47 S.W. 965, 966. Martin v. Hemphill, Tex.Com.App., 237 S.W. 550; 32 Tex.Jur. 221; 40 Am.Jur. 126-127. Their agreement being thus fully performed, does not come within prohibition of the Statute of Frauds. Palmetto Lumber Co. v. Gibbs, Tex.Civ.App., 52 S.W.2d 120, 128 (Aff. 124 Tex. 615, 80 S.W.2d 742, 102 A.L.R. 474); Shropshire v. Adams, 40 Tex.Civ.App. 339, 89 S.W. 448; Price v. Felumlee, 60 Ohio App. 34, 19 N.E.2d 290; 26 Tex.Jur.2d 264-265; 37 C.J.S. Frauds, Statute of § 238, p. 740.

(2) No time limit was set for the duration of the relationship. Therefore it was terminable at will. That being so it was susceptible of being performed within a year, hence does not come within the Statute of Frauds. Ware v. Chatham, Tex.Civ.App., 56 S.W.2d 229; Hatzfeld v. Walsh, 55 Tex.Civ.App. 573, 120 S.W. 525; Shropshire v. Adams, 40 Tex.Civ.App. 339, 89 S.W. 448; Weatherford, M. W. & N. W. R. Co. v. Wood, 88 Tex. 191, 30 S.W. 859, 28 L.R.A. 526; 26 Tex.Jur.2d 192-195; 49 Am.Jur. 404, 68 C.J.S. Partnership § 61, p. 486.

(3) We think there was sufficient memo-randa signed by appellant, the party to be charged, to comply with the Statute of Frauds, Art. 3995(5), V.A.C.S. Among these memoranda are the certificate filed in the Assumed Name Records and the income tax returns for the years 1956, 1957, 1958 and 1959. These documents, signed by appellant, show that the business arrangement was a partnership. The date of organization, the character of the business, the division of losses and profits (including the change to equal division of profits in 1959) and the ownership of the capital accounts are shown.

In support of the foregoing conclusion we quote from the holding of our Supreme Court in Adams v. Abbott et al., 151 Tex. 601, 254 S.W.2d 78, 80: "* * * A memorandum is required by the statute of frauds, not for the purpose of obtaining a contract in writing, but merely to furnish written evidence, signed by the party to be charged, of the obligation to be enforced against him. Therefore, a valid memorandum of the contract may consist of letters and telegrams signed by the party to be charged and addressed to his agent or the other party to the contract, or even to a third, person not connected with the transaction. 49 Am.Jur., Statute of Frauds, § 334; 37 C.J.S., Frauds, Statute of, § 173; Street v. Johnson, Tex.Civ.App., 96 S.W.2d 427.” (Emphasis ours.) See also Rochelle v. Gibler, Tex.Civ.App., 269 S.W.2d 515, and 26 Tex.Jur.2d, 247. Appellant’s first point is overruled.

In his second, third, fourth, sixth, eighth and fourteenth points appellant asserts that (2) the judgment is at variance with and (3) does not have support in the pleadings; (4) there is no evidence to support the recovery; (6) the court should not have overruled appellant’s motion to disregard the jury’s findings; (8) appellant was entitled as a matter of law to at least $63,926.35 before dividing any profits; and (14) the court erred in not permitting appellant to put in evidence his exhibits 74, 74(a) and 74(b), a schedule showing monies amounting to $33,501.18 (part of the $63,926.35) collected subsequent to January 1, 1959, but earned prior to January 1, 1959.

The jury found in answer to special issue No. 1 that the parties agreed that all net profits of the partnership resulting from monies collected after January 1, 1959 should be divided equally between the partners.

The issue has support in appellee’s pleading and the court properly refused to disregard the jury’s finding. Appellee pled the agreement as heretofore set out in this opinion. He further pled that “during 1959 said partnership made a net profit of $49,-879.44 which was apportioned equally to plaintiff and defendant in accordance with said partnership agreement(Emphasis ours.)

The above pleading is supported by evidence. We quote from appellee’s testimony:

“Q. * * * I want to know if at that time you had any agreement concerning the division of profits after you were to become a full time participant in the business
“A. Yes sir.
“Q. What kind of an agreement did you have at that time concerning the profits after you became fully participating?
“A. We had an agreement where we would equally participate in the profits on my reporting for active duty in the business.
“Q. Did you agree to report at all events —
“A. Yes sir.
“Q. —at some time?
“A. Yes sir, the earliest possible moment I would enter into the business.”

The remainder of the $63,926,35 claimed by appellant is made up of the sum of $16,-025.17 which appellant says he earned after dissolution of the partnership; and the sum of $14,600.00 which appellant says is back compensation due him and his wife.

Appellant claims the partnership was dissolved March 15, 1960. But he overlooks the winding up period, which certainly lasted at least until May 11, 1960 when the receiver was appointed. Dissolution does not terminate a partnership. The relationship continues during the winding up period. This is especially true when one of the parties is still in charge of the business. He occupies a fiduciary relationship to the other partner until the winding up of the partnership affairs is complete.

Rowley on Partnership, § 582 (1960 Ed.) says there are three steps in the termination of a partnership: (1) dissolution, (2) winding up and (3) termination and accounting. See also Jones v. Mitchell, Tex.Civ.App., 47 S.W.2d 371; 40 Am.Jur. 388, 393; 80 A.L.R. 15; 55 A.L.R.2d 1424.

The $14,600.00 claim was once pled by appellant but was later abandoned and not repled. There is no current pleading to support the claim. See Fithel v. Saltes, Tex.Civ.App., 11 S.W.2d 815, 819.

Appellant’s contention is that the items constituting his claim of $63,926.35 should properly be credited to his capital account and paid to him before profits are divided between the partners. We cannot agree. The books and records of the partnership were kept by appellant or under his supervision. They refute appellant’s contention.

The capital accounts on December 31, 1958 showed capital credits to appellant of $14,322, and to appellee of $12,262.44. Through March 31, 1959 the capital accounts were exactly balanced at $11,702.42 for each partner. Appellant’s capital account was $500.00 less than appellee’s at the end of December 1959 and $1500.00 less at the end of February 1960. The receiver’s motion to sell the assets and the court’s order show the capital accounts balanced as of May 11, 1960. The court order properly found and concluded that the monies in the registry of the court belonged equally to appellant and appellee. Appellant’s second, third, fourth, sixth, eighth and fourteenth points are overruled.

In his fifth, seventh and ninth points appellant says that the court erred in overruling his exception as to damages, in rendering judgment on an erroneous measure of damages, and in rendering judgment for damages and for one-half the money paid into court by the receiver.

As to the amount of damages appellee relied on the testimony of two expert witnesses, Oscar K. Thornton and Wm. J. Murrell. They testified that the business, other than physical assets and accounts receivable, had no cash market value. Each of them testified as to his training and experience in appraising the intrinsic value of partnerships. Murrell testified especially with regard to his experience with reference to valuations in the field of manufacturers’ representatives in electronics partnerships. Thornton had made an accountant’s report on the books of the partnership. In response to hypothetical questions Mur-rell fixed the intrinsic value of the partnership business, including good will, at $197,-126.8+ — Thornton fixed the intrinsic value at $101,250.00.

In our opinion it was not reversible error for the court to render judgment for damages based on the evidence and the jury verdict in this case. We have found no case exactly in point. But there are several which hold that in a suit involving dissolution and wrongful termination of a partnership damages are recoverable when the assets or part thereof are destroyed by the tortious conduct of one of the partners. As was said in Ball v. Britton, 58 Tex. 57:

* * * The defendant did not withdraw from the firm. He expelled the plaintiff out of it; and he not only retained all that he had put into it, but he kept all that had been contributed by the plaintiff, except a certain portion of the profits. * * * We think, therefore, that the petition set forth a good cause of action. * * * In the case before us, there was a breach of contract, certainly; but there was much more. The plaintiff was, with every circumstance of contumely, excluded from a business in which he had an interest, and from premises in which he had a right to work, at least for the time being. The defendant appears to have taken the law into his own hands, and to have closed the partnership in a manner entirely too summary to be sanctioned by a court of justice. * * *"

See also Inman v. Parr, Tex.Civ.App., 311 S.W.2d 658; Taormina v. Culicchia, Tex.Civ.App., 355 S.W.2d 569. Warner v. Winn, Tex.Civ.App, 191 S.W.2d 747, 749; 40 Am.Jur. 468; 68 C.J.S. Partnership § 117, p. 558.

Intrinsic value is the proper measure of damages in the absence of market value. Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931, 13 L.R.A. 272; International-Great Northern R. Co. v. Casey, Tex.Com.App, 46 S.W.2d 669; Tabb v. City of Mount Pleasant, Tex.Civ.App, 12 S.W.2d 831; Texas & Pacific R. Co. v. Wilson Hack Line, 46 Tex.Civ.App. 38, 101 S.W. 1042. Good will is property and damages are recoverable for injury to it. Texas & P. R. Co. v. Mercer, 127 Tex. 220, 90 S.W.2d 557, 106 A.L.R. 1299.

In Ball v. Britton, supra, the court in allowing ordinary damages used the value of plaintiff’s services as the proper measure. But there the plaintiff had contributed no capital to the business. On dissolution there was a question whether he had ever contributed any capital ownership to the business. Here there is no question but that the partners contributed equally to the capital fund of the business.

For another reason we are of the opinion that the judgment for damages should not be reversed on the ground that the judgment is based on the wrong measure of damages. Appellant made no objection to the court’s charge to the jury on the ground he here urges, or to the court’s failure to submit any issues, or to the court’s definition of intrinsic value. Under Rules 274 and 372(d) appellant waived any objections to the court’s charge on the ground that it submitted the wrong measure of damages and will not now be heard to complain that the court’s charge permitted the jury to find damages based on a wrong measure. Lloyds America v. Payne et al., Tex.Civ.App., 85 S.W.2d 794; Iowa Mfg. Co. v. Baldwin et al., Tex.Civ.App., 82 S.W.2d 994, 999; Parks v. Hines, Tex.Civ.App., 68 S.W.2d 364, 368.

Appellant’s fifth, seventh and ninth points are overruled.

Appellant’s eleventh, twelfth and thirteenth points involve the admissibility of evidence. He says it was error for the court to overrule (11) his objections to appellee’s offers of compromise to give or take $100,000.00 for the business; (12) his objections to the testimony of appellee’s expert witnesses Murrell and Thornton; and (13) his objections to appellee’s Exhibit No. 68, Thornton’s analysis, because the analysis contained hearsay entries.

The record discloses that on or about March 25, 1960, after the partners had come to the parting of their ways, appellee made an offer to appellant to give or take the company’s airplane, automobile, territory rights in New Mexico, Kansas and Saint Louis and $60,000. cash in settlement. Appellant objected that such testimony was an offer of compromise, therefore not admissible. In support of his position he cites Howard v. O’Neal, Tex.Civ.App., 246 S.W.2d 907 and Whitsett v. Whitsett, Tex.Civ.App., 201 S.W.2d 114.

In reply appellee says it was not an offer of compromise because at the time there was no dispute between the parties as to the value of their interests in the business and appellee was not making any concession. He cites Sawyer v. Willis, Tex.Civ.App., 310 S.W.2d 398; Ginsberg v. Selbest Dress, Tex.Civ.App., 238 S.W.2d 621; Missouri, K. & T. R. Co. of Texas v. Sullivan, Tex.Civ.App., 157 S.W 193; and 2 McCormick & Ray, Texas Law of Evidence, page 31.

We believe the statement of appellee was an offer of compromise, therefore not admissible in evidence. But under the circumstances its admission does not constitute reversible error for these reasons:

(1) When appellant made his objection, he stated he would object again if the testimony were again offered and would move to strike. The testimony was again offered and appellant made no objection.

(2) In fact appellant later, more than once, cross-examined appellee about the offer and himself testified both on direct and cross-examination about appellee’s offer and a counteroffer he made to appellee.

We quote from one of appellant’s cross-examinations of appellee:

“Q What was said, * * *
“A I said, T believe it is time for one of us to withdraw from the business, and I think the business is too small for both of us, or both of us are too large for this business, and I think it is time one of us should withdraw, and I now give you the first opportunity to make a buy or sell offer.’ * * *
“Q All right go ahead with what you said is the only thing that happened.
“A He declined to make an offer.
“Q Your Honor, I asked him what he said
“THE COURT: Yes, just answer the question.
“A He said * * *
“THE COURT. Just a minute, on this business of this matter of an offer being made and discussed, there has been testimony by this witness on that point.
“MR. OEHLER: Yes.
“THE COURT: Try not to repeat, Counsel.
“MR. OEHLER: I was just giving him a chance to say everything that happened. They only asked, him as to some things that happened there.
“THE COURT: Proceed.”

We quote from the appellant’s own testimony on direct examination:

“Q (By Mr. Oehler) All right, Mr. Howell, with reference to what took place out there in the Tex-O-Koma Sales Company office * * * on March 15, 1960, will you tell the jury as best you can recall as to what you say took place there, * * *
“A He said, ‘Okay, I will make you an offer. I figure this business is worth $200,000.’. That is when he reached over and got a card on the desk and wrote on this card and dictated to me at the same time, T will withdraw and become inactive and I will take the airplane, which represents $30,000, and I will take the New Mexico, Kansas, Missouri territory. I will take $10,000 in cash and $60,000 payable over five years, $1,000 a month, and at the completion of this payment I will give you full control of Tex-O-Koma Sales Company’.
“Q What did you do?
“A When I recovered from the shock of hearing this from my friend I said, ‘Well, partner, being as you made me that offer, I will take the same thing with the exception that the $60,000 will also be paid in cash, because you won’t last five months’. He said, ‘Ha ha. You are not making me the same offer I am making you, and here is my attorney, you will be hearing from him’., and he wrote Mr. George Potts’ name on another card and handed it to me.
“My patience was exhausted. I walked to the side of the desk and I said, ‘Frank, get out of my office.’ * * *"

In the light of the above circumstances we hold that appellant waived his initial objection to appellee’s offer of compromise. American Gen. Ins. Co. v. Sims, Tex.Civ.App., 278 S.W.2d 586, Chesshir v. Nall, et al., Tex.Civ.App., 218 S.W.2d 248, 253; Dohoney v. Womack, 1 Tex.Civ.App. 354, 19 S.W. 883; 1 McCormick & Ray, Tex. Law of Evidence, 26-27.

Murrell and Thornton qualified as expert witnesses on value of partnerships of this type. Their testimony was admissible. Accountant Thornton’s report contained entries which were identified as having their source in the books of the partnership. Appellant’s eleventh, twelfth and thirteenth points are overruled.

We find nothing in the record to show that excluded exhibits Nos. 18 and 18A were sent to the jury room. As to exhibits Nos. 1 to 6, appellant himself introduced them into evidence. We find no record that he made any objection, or -that they were sent to the jury room. Appellant’s fifteenth and twenty-first points are overruled.

In his sixteenth point appellant complains of the court’s failure to quash a subpoena duces tecum to bring in the record of appellant’s new corporation Howell Sales. In his eighteenth point he complains of ap-pellee’s jury argument. In his twentieth point he contends that the receiver should not have been discharged. Appellant lists and restates the above points, but submits no argument in support o.f them. Nevertheless we have considered them and in our opinion they do not present reversible error. They are overruled.

Appellant, in his seventeenth point, says that the amount of damages found by the jury, $57,500.00, is grossly excessive, unfair, and actuated by prejudice and passion. As already stated appellee filed a re-mittitur of $3,008.12 thus reducing the judgment for damages to $54,491.88. There was ample evidence to support a judgment for the last named figure. Appellant’s seventeenth point is overruled.

Appellant says in his nineteenth point that the evidence is insufficient to support the jury verdict. The statement of facts consists of more than 1,000 pages. We have reviewed the entire record. The evidence is sufficient to support the jury verdict. Appellant’s nineteenth point is overruled.

The judgment of the trial court is affirmed.

      . The total of the items claimed by appellant amounts to $64,126.35 — $200.00 more than the amount stated in appellant’s brief.

      . It is interesting to note that the Texas Uniform Partnership Act which went into effect in 1962, too late to control this case, so provides. See Art. 6132b, § 36, V.A.C.S.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    TELEVISION BROADCASTERS, INC., d/b/a Station KBMT-TV, Appellant, v. MOTION PICTURES FOR TELEVISION, INC., and Western Television, A Division of Television Industries, Inc., Appellees.
    No. 6518.
    Court of Civil Appeals of Texas. Beaumont.
    June 6, 1963.
    James D. McNicholas, Beaumont, for appellant.
    James T. Wright, Jasper, for appellees.
   McNEILL, Justice.

Plaintiffs (appellees) sued on a verified account. They alleged .they had furnished defendant .certain films for TV broadcasting purposes under a contract made on April 22, 1954, and that the sum due was $10,900.85. The petition also alleged that by a supplemental agreement dated June 18, 1956, (Exhibit “B”), defendant was given the option of paying said sum either in cash or by making available to plaintiffs between July 1, 1956, and June 30, 1958, a total of 3120 TV “spots” on defendant’s broadcasting programs. It was provided that if some “spots”, but not all 3120, were made available, that this would be payment pro tanto. Prayer was for recovery of the sum stated.

Defendant filed unverified answer containing general denial and pleas of the two and four year statutes of limitation.

Plaintiffs served defendant with request for admissions. The fifth and sixth items of the request and the answers thereto were:

“5. That in said written agreement designated Exhibit B, said Randolph C. Reed, in his capacity as President of said Defendant, acknowledged that said Defendant was indebted to Plaintiff in the sum of $10,900.85.
“It is admitted that the Defendant acknowledged the sum of $10,900.85 to be due as of June 18, 1956 under the specific terms of the original contract dated April 22, 1954.
“6. That said sum of $10,900.85 has not been liquidated or paid by said Defendant to Plaintiff.
“The Defendant admits that said sum of $10,900.85 has not been paid in cash. The Defendant denies that the ‘3120 Spots’ referred to in Exhibit B of Plaintiff’s Petition were not pursuant to said agreement made available to Plaintiff in liquidation of said sum prior to the date that it terminated commercial operations.”

After this response to the request, plaintiffs then filed motion for summary judgment based upon the pleadings which included its verified account, and the response to the request for admissions above set out. The motion was granted and judgment rendered against defendant for the debt.

This was error. The facts reflected above indicate a genuine issue of the fact, i. e., whether defendant had made available these TV “spots”. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Ridenour v. Wilkes, Tex.Civ.App., 283 S.W.2d 401(5). Under the contract pleaded by plaintiffs, defendant had the option of either paying the sum of money in cash or making these “spots” available. This was a method of discharging the debt, of paying the obligation. In order to show such payment, it was not necessary to deny the justness of the verified account under oath. Atlas Supply Co. v. Hardie, Tex.Civ.App., 38 S.W.2d 844; Chisos Mining Co. v. Chicago Pneumatic Tool Co., Tex.Civ.App., 142 S.W.2d 549; Goddard Machinery Co. v. Industrial Equip. Repairs, Tex.Civ.App., 351 S.W.2d 371; 1 Tex.Jur.(2) 332, 333.

Plaintiffs say, however, that because defendant has not pleaded payment, the summary judgment was properly granted. Their position is not correct. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233(8); Nix v. Davis, Tex.Civ.App., 358 S.W.2d 225(4).

Judgment is reversed and the cause remanded.


author: MASSEY, Chief Justice.

text:
    PANGBORN CORPORATION, Appellant, v. Stanley W. JACOBS, Appellee.
    No. 16426.
    Court of Civil Appeals of Texas. Port Worth.
    May 24, 1963.
    Rehearing Denied June 21, 1963.

      Brown & Murray and M. Hendricks Brown, Fort Worth, for appellant.
    Rumph, Ivy & Karpenko and Evans J. Karpenko, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The appeal is from a judgment for plaintiff Stanley W. Jacobs for damages on account of personal injuries growing out of an industrial accident. Judgment was against the defendant Pangborn Corporation, which had furnished steel to be erected into a structure by plaintiff’s own employer. Incident to said construction Pangborn had furnished the services of one Carbaugh to assist the purchaser of the steel, and also assist plaintiff’s employer, as the erecting contractor. It was on account of negligence averred on the part of Carbaugh, and by and through him on the part of Pangborn under the doctrine of respondeat superior, that plaintiff brought his suit. Carbaugh was not named as a party defendant.

Judgment reversed and the cause remanded for another trial.

A statement is necessary. Pursuant to the contract between Pangborn and Texas Steel Company, Pangborn contracted in writing with reference to a certain “erection”, as follows: “(Pangborn to furnish) One Lot Services of an experienced Erecting Superintendent to supervise Purchaser’s Labor in the assembly and erection of the equipment at a per diem rate of $65.00 for (8) hours which includes Erector’s living expenses; plus transportation not to exceed rate from Hagerstown, Maryland and return, also transportation to and from job. Purchaser furnishes labor and all other items required to properly erect the equipment.” The “experienced Erecting Superintendent” mentioned in the contract was Carbaugh, one of several such employees of Pangborn.

The provision quoted was actually supplemental to a contract whereby Pangborn sold to Texas Steel prefabricated structural steel for assembly incident to the erection of a structure. The steel pieces sold were sized and perforated under a standard design of Pangborn, sort of a “package deal”. Pangborn does not contract to erect these structures, responsibility therefor lying upon the customers to whom such sales are made.

On the trial Pangborn produced as a witness one Johns, that company’s superintendent over Carbaugh. He testified that in many instances Pangborn’s customers buy the prefabricated steel pieces for erection into the same kind of structure as that with which we are concerned and erect the same without the services of any of Pang-born’s “erecting engineers”, such as Car-baugh. However, Pangborn usually recommends a contract of the nature quoted, and which provides for an “experienced Erecting Superintendent”, since they believe that the erection is thereby facilitated to the greater satisfaction of all parties. In connection with the time and services of such an engineer or . superintendent Pangborn pays him for his services and reimburses him his expenses and in turn bills the customer in the amount called for by the contract. This was true as applied to the activities of Carbaugh, under the aforesaid contract. Mr. Johns testified that for Carbaugh to have taken part in the actual erection of the structure was not his normal work and that no authority had been given Carbaugh to do this nor to be “receiving steel” on the structure being erected. Johns further testified that Car-baugh did not have authority from Pang-born to exercise supervision over the labor but that it was expected that he would work with whomever Pangborn’s customer would place in charge of the erection.

A Mr. Johnson was the superintendent for General Engineering Corporation, plaintiff’s employer, which had contracted to “put together”, according to plans and specifications recommended by Pangborn, the steel Pangborn had sold and delivered to Texas Steel. Under Johnson was Mr. Ashcraft, the superintendent or job foreman at the Texas Steel premises. As applied to the phase of the construction activities with which we are concerned it may be properly said that General Engineering’s contract solely related to the furnishing and superintending of the labor in the erection of the structure. In the beginning, or as the job was started, Johnson and Ashcraft met with Carbaugh. It was revealed and became apparent that General Engineering and its men were inexperienced in erecting steel structures embodying a gauge of metal of the size and weight Pangborn had sold Texas Steel Company. Ordinarily their experience was with what is termed “sheetmetal”. Johnson testified that Carbaugh agreed with them that he would “take the lead in order to get the job in faster”, and agreed “to help get everything started and go along and that he would, you know, more or less take the lead of the direction of where everything went to.”

Carbaugh’s own testimony was that his job was to see that the structure was eirectéd properly, to instruct what should be done in connection with the erection and the order in which the steel pieces were placed in the structure, that he would give the order of construction sequence to a foreman in charge of General Engineering’s labor personnel, but that he would have to do some of the work himself in order to “show” members of General Engineering’s labor force how to perform certain tasks. The record is absent of any identity of what General Engineering employee or employees were being “shown” how to perform the task undertaken by Carbaugh at any particular time.

In connection with the actual activity in which he was engaged at the time plaintiff sustained his injury, Carbaugh stated that he was himself actually performing the task in order to show General Engineering men how it was done. We are not told who the men were. The activity in question involved giving signals to a crane operator on the ground relative to swinging horizontally into position and lowering into its proper vertical position a rectangular piece of iron (weighing around 380 pounds and called a “partition plate”), coupled with the preparation to apply hand guidance of the iron piece by what is called “drifting” it into position. There was another workman (an employee of General Engineering) at the opposite end of the partition plate preparing to act in cooperation with Carbaugh by using his hands at the same time in helping to “drift” it into its proper final position. It is observable from this description what the witness Johns referred to as “receiving steel”.

Other evidence in the record was to the effect that Carbaugh had already performed the same rather hazardous and complicated task at several other points on the structure where similar “partition plates” had been installed at times when General Engineering men were observing the procedure. The effect of such evidence would warrant at least three different conclusions relative to time of plaintiff’s injury: (1) that Carbaugh was actually directly performing the task for Pangborn in “showing” the employees of General Engineering how it should be done, (2) was voluntarily performing the task as a courtesy and favor for General Engineering because said corporation did not have anyone in its employ capable of performing it, or (3) was performing the task in furtherance of the interest of Pangborn because otherwise there would in his opinion be a resulting undue delay in the accomplishment of a completed structure, for which delay his said employer might be in some way held responsible.

In order to describe the manner of plaintiff’s injury it is necessary to describe the state and condition of erection at the particular part of the structure where the work was being performed, and the nature of said particular part as of the time of the injury.

The prefabricated steel when put together was to provide a framework or “case” for a series of “dust bins” into which the dust from Texas Steel Company’s plant would be drawn and captured. As finally constructed and installed there were to be about a dozen of these bins supported by and encased within a steel frame,work running on top of the lower part, and alongside and near the top of the upper portion, of the plant building. It was during the time that the steel framework was being assembled that plaintiff’s injury occurred.

The structural steel framework ran lengthwise of the building, but may be considered by “sections”, put together “end to end” ultimately to result in the completed frame structure. There were about a dozen sections, or at, many as there would eventually be of the dust collector bins. The upper end portion of each section (as it joined the adjacent section) was intended to support what will be termed as a “partition plate”. Each partition plate weighed around 380 pounds, and was of rectangular shape, about 9 feet across by 3 feet in height. On the ends of the several sections these partition plates would rest, when installed, anchored by bolts or rivets. In the center of each section was open space (where a dust bin would eventually be set in place), with a steel framework surrounding such including what was called “knee braces”, i. e., iron strips running in various directions connecting to larger pieces called “channel irons”. One channel iron extended across the top of the framework, where it would ultimately be bolted or riveted to the lower ends of partition plates. There was, of course, such a channel iron along the top of each side of each framework section. The lower end of each partition plate contained holes intended to be used in the bolting or riveting of the same to a channel iron. Each channel iron weighed around 300 pounds.

From the demonstration by counsel for both parties, pursuant to the presentation of oral argument on appeal, it is readily observed that probably the most hazardous operation involved in the erection of the entire structure was the “setting” of the “division plates”. In each operation the end of one channel iron, except for the fact that such end was resting upon a little iron plate bolted on an upright piece of steel, was shown to have been entirely free and unconnected with any other part of the structure. In this state it remained until a partition plate was “lowered and drifted” into position where it and the free end of the channel iron could be fastened together by a supplemental operation to accomplish that purpose. That operation would be to bolt the “free” end of the channel iron to the lower part of the end of the partition plate, as it was held in a vertical position by a crane.

At time of plaintiff’s injury there was a large crane on the ground alongside the structure being erected. The operator thereof was using the crane to pick up and swing into position each of the heavy pieces of steel in the order in which they were installed. As previously mentioned, several of the partition plates had already been positioned and fastened. This had been accomplished through an operation whereby the crane operator would use his machinery to lift each partition plate and swing it across the structure to the approximate point where it would be finally placed in position, then, in compliance with hand-signals from one of the two men performing the ultimate task of “drifting” the partition plate into position (in part through use of their hands) would move it horizontally if that was indicated, and in any event lower it, along and in cooperation with action by the men on the structure “drifting” the plate into position for fastening.

The structure was between the top of the Texas Steel Company building and the crane on the ground. Hence one of the men on the structure had his back to the crane operator, but the one furthest away— nearest the top of the building — was in position to look down at the crane operator and signal to him. This man was Carbaugh. It was at Carbaugh’s end of the vertical framework at one end of a section, upon which the partition plate important to the case was to be put in position that the channel iron, heretofore mentioned, had its “free end”, i. e., which was not connected to anything, but merely resting upon a plate installed for that purpose at or adjacent to the point where Carbaugh was “receiving” the partition plate. Below Car-baugh, although a little to one side, plaintiff and another man were working on the installation of knee braces.

There was evidence that Carbaugh was giving signals to the crane operator, who was in turn swinging the partition plate into position. There was evidence to the contrary, though of little force. It seems that in obedience to signal the crane operator was beginning to slowly lower the same in the anticipation that Carbaugh and the assisting General Engineering employee would use their hands to “drift” it into position. At this point there is testimony which indicates that some unusual noise caused Carbaugh to look behind him. Simultaneously the end of the channel iron, which was the free end right by Carbaugh’s position on the structure, came off the plate on which it rested. The channel iron, being fastened at its opposite end by two bolts, did not come completely free immediately, but swung in an arc. This motion resulted in the shearing of the bolts at the opposite end, whereupon the entire channel iron fell free (of any connection with any other part of the structure). As the channel iron or the free end thereof was falling it passed close by one of the knee braces with terrific force. This was the knee brace on which plaintiff was working. He had his right arm across it, either in affording support to himself or in working it into position. The passing of the channel iron in close proximity to the knee brace “scissored off” plaintiff’s arm. The channel iron continued to fall, passing completely through the roof below it.

There is evidence that the crane operator saw the channel iron fall, and that he immediately “dogged off” on his machine, which in parlance of the industry means that the crane was immediately stopped so that the partition plate was lowered no further, nor moved in any direction. There is also testimony that the partition plate did not strike any part of the structure, but was held motionless above the same. Contrarily there is testimony that the partition plate did strike against the inner side of the channel iron and knocked it outward so that its end came off the plate on which it was resting. Although it is by inference, there is also evidence that the partition plate struck against some other part of the structure and jolted the same with such force that the channel iron was caused to slip off the plate.

Raised as a question of fact, but not concluded as a matter of law, was whether Carbaugh was acting as the agent, servant and employee of Pangborn in his performance and intended performance of a task immediately prior to and at the time of plaintiff’s injury. Despite the objection of Pangborn to the absence of an inquiry of the jury by an issue, or issues, which would resolve what we hold was a question of fact, the trial court failed and refused to submit the same. Pangborn filed and presented specially requested issues directed to presentation of the question, and these were refused. The case was submitted to the jury by a charge which made no inquiry upon the matter of agency, scope and course of employment, etc.

In this connection it is noted from the pleadings of the plaintiff that he alleged that at all times incident to the suit Car-baugh was acting as an agent, servant and employee of Pangborn, and working and acting in the course and scope of his employment.

Pangborn, by its pleadings, denied the allegations and contended further that “at best” Carbaugh should not be considered more than a fellow employee and workman with plaintiff, and/or with the operator of the crane, an employee of General Engineering’s subcontractor. It is of interest to note that the crane operator had been acquitted of negligence in a former trial, as result of which that subcontractor, who was at the time a co-defendant of Pangborn, was discharged as having been acquitted of any liability to plaintiff. At another point in Pangborn’s pleadings it was alleged that Carbaugh was either a fellow employee of the plaintiff or was an agent or servant of plaintiff’s employer at the time in question. At another point Pangborn specifically denied that Carbaugh was at the material time acting as an agent or employee of Pangborn Corporation, or that Carbaugh’s acts were in the scope of his authority or of his employment; and further, that “at best” Carbaugh’s acts were those of a volunteer performing gratuitous work for plaintiff’s employer at the material time.

Had it been Carbaugh who was injured, and had it been the employer of the plaintiff against whom Carbaugh was attempting to obtain a personal injury judgment, the questions of law involved would have been somewhat similar to those the writer had under consideration in the case of Stephens v. Mendenhall, 1956 (Tex.Civ.App., Fort Worth), 287 S.W.2d 259, writ ref. n. r. e. In that case a major task of the injured plaintiff, on the trial, was to prove that he was acting at the time of injury as the agent, servant and employee of Hayden Farmer Drilling Company and to obtain a jury finding to that effect, for unless he could do so there was little question hut that he would properly he treated as “volunteer” servant of the defendant, and as such foreclosed from imposing third party tort liability upon the defendant. He was successful, and our holding in that case was that the evidence supported the jury’s finding that plaintiff was, in the commission of the act which resulted in the injury, acting for the benefit of his own principal employer, rather than solely seeking to promote the interest of the defendant and of the defendant’s employee whom he was attempting to aid.

We believe it as essential to a recovery in the case before us that the plaintiff obtain jury findings that Carbaugh was Pangborn’s agent, in performing the function of signalling and/or manually guiding the partition plate into position, as the same matter was essential to the plaintiff’s recovery in Stephens v. Mendenhall. In neither instance could it be said that there was an “ascertained state of facts” which would entitle the trial court to resolve the question as a matter of law.

In the instant case it appears from the evidence that there was a fact question as to whether Carbaugh, in performing an act alleged to have been incident to the event as result of which plaintiff sustained his injury, was a mere “volunteer” (i. e., was performing in behalf of plaintiff’s employer, etc.) or was undertaking to perform an act of service for or in furtherance of the interest of Pangborn, his own principal employer. Carbaugh’s own testimony was that he was acting for Pangborn, but that testimony amounted only to a declaration by an agent tendered to prove the existence of agency and authority thereunder. It is true that his testimony was admissible against Pangborn in view of the antecedent evidence of Pangborn’s contract with Texas Steel Company. Nevertheless, mere questions of fact were raised thereby. Not “ascertained” were facts or uncontroverti-ble factual conclusions which entitled the trial court to decide as a matter of law that Carbaugh was Pangborn’s agent, acting for or in furtherance of Pangborn’s interest in his performance of the task undertaken immediately prior to and at the time of plaintiff’s injury.

While we have little doubt but that the jury would have found that Carbaugh was in fact acting solely for Pangborn, and within the scope and course of that employment, the fact remains that it did not do so. We believe that the nature of the case, coupled with the rather involved interlocking cooperative activities incident to the erection of the structure on the part of several principals, through agents and servants, made it essential that the issue of Carbaugh’s agency, etc. be resolved by a jury determination. See Restatement of the Law, Agency, p. 483, et seq. “Third Person vs. Principal”, sec. 220 “(Who is a Servant) Definition”. See also under the Restatement, p. 498, sec. 226, “Servant Acting for Two Masters”; p. 500, sec. 227, “Servant Lent to Another Master”; p. 505, sec. 228 (Scope of Employment) General Statement; p. 507, sec. 229, “Kind of Conduct Within Scope of Employment”; p. 559, Title C., “Torts of Agents Who are not Servants”, sec. 250, “Non-Liability for Physical Harm”; 57 C.J.S. Master And Servant § 617, p. 408 et seq.—Questions of Law and Fact, and § 618, p. 418 et seq.— Instructions. See also Standard Oil Co. v. Anderson, 1909, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Roy L. Jones Truck Line v. Johnson, 1949 (Tex.Civ.App., Galveston), 225 S.W.2d 888, writ ref. n. r. e.; Shannon v. Western Indemnity Co., 1924 (Tex.Com.App.), 257 S.W. 522; Insurors Indemnity & Insurance Co. v. Pridgen, 1949, 148 Tex. 219, 223 S.W.2d 217; Stallcup v. United Gas Public Service Co., 1938 (Tex.Civ.App., Forth Worth), 119 S.W.2d 574, and cases there cited. (In examining the Shannon v. Western Indemnity Co. and Insurors Indemnity & Insurance Co. v. Pridgen cases it should be borne in mind that the Texas Workmen’s Compensation Law was involved and that rules applicable in connection with a determination of whether an injured plaintiff was an employee, etc., are somewhat more generous to the injured employee than is true in ordinary tort cases.)

While on the trial from which the instant appeal has been taken the evidence does not show applicability of principles of law discussed in American Nat. Ins. Co. v. Denke, 1936, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409, an acquaintance therewith by all concerned might be helpful in the event the developments on further trial should create a necessity for their consideration.

Since Pangborn had plead in the nature of an affirmative defense in such a way as to entitle it, under the evidence, to have an issue submitted inquiring whether Carbaugh was the agent, servant, and/or employee of plaintiff’s employer at the time of plaintiff’s injury, acting within the scope and course thereof, we are furthermore of the opinion that the trial court erred in refusing Pangborn’s specially requested issue which posed an inquiry thereon.

A part of the theory of plaintiff’s case depended upon the finding that the partition plate which was being brought into proper position where Carbaugh and the employee of General Engineering would guide and drift it into position by use of their hands,— either struck against the channel iron, knocking it loose, — or struck against some other part of the structure, jarring the same so that the channel iron was caused to fall. Incident thereto and dependent upon the fact that such did occur was the alleged negligence on the part of Carbaugh, because of which plaintiff was predicating his claim of Pangborn’s liability. In other words, if such an event did not occur Pang-born could not be liable for plaintiff’s injury under the theory to which plaintiff was committed by his pleadings.

Carbaugh’s negligence was alleged to have consisted in his failing to guide the partition plate, in failing to keep a proper lookout for the partition plate and for the safety of the plaintiff, in failing to give proper signals for the positioning of the partition plate, in failing to warn plaintiff that the plate was about to be positioned, and in failing to keep the channel iron on the “clip angle” as the plate was being positioned. Whether or not the partition plate hit anything, in particular the channel iron itself (thereby causing its fall), was a disputed issue under the evidence. The same thing is true relative to whether it was Carbaugh who was giving the signals to direct the movement of the partition plate by the crane operator. No issue was submitted by answer to which either of these questions was resolved. Pangborn objected because of the absence of the issues on the ground that the court, in submitting the other issues mentioned, assumed that the partition plate had struck the channel iron and that it was Carbaugh who was giving signals. We believe that reversible error is present in view of Pangborn’s objection. T.R.C.P. 274, “Objections and Requests”, and T.R.C.P. 279, “Submission of Issues”; Yellow Cab and Baggage Company v. Green, 1955, 154 Tex. 330, 277 S.W.2d 92.

Other errors assigned by Pangborn relative to conduct of the trial, or relating to the liability phase of the case, we deem without merit. At least this is true in the state of the record as developed in the trial court. We overrule these points of error. We see no occasion to lengthen this opinion by a discussion.

In view of our disposition, already indicated, we have decided not to pass on Pang-born’s point of error asserting excessiveness in the award of damages.

Judgment is reversed and the cause remanded for another trial.


author: McDONALD, Chief Justice.

text:
    BRAES MANOR CIVIC CLUB et al., Appellants, v. Don MITCHELL et al., Appellees.
    No. 4122.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1963.
    Rehearing Denied June 27, 1963.
    J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.
    Barrow, Bland, Rehmet & Singleton, Sidney Farr, Melvin S. Cohn, Houston, for appellees.
   McDONALD, Chief Justice.

This case involves the meaning and enforcement of certain restrictions in Braes Manor, an addition in Harris County, Texas.

Plaintiff Civic Club (and individual plaintiffs who own homes in Braes Manor Addition) instituted this suit against defendants, who own lots 4, 5, 6 and 7 of Section 2, Braes Manor Addition, to enforce existing restrictions on lot 7, and to enjoin defendants from using lot 7 as a parking lot. Plaintiffs also alleged that the use of lot 7 as a parking lot constituted a nuisance. Trial was to a jury on the question of whether the use of lot 7 as a parking lot constituted a nuisance, and the jury found that such use was not a nuisance. The Trial Court overruled plaintiffs’ motion for judgment non obstante, and entered judgment on the verdict that plaintiffs take nothing. Plaintiffs appeal, contending among other things, that the Trial Court erred in rendering judgment for defendants, because the restrictions preclude use of lot 7 as a parking area, as a matter of law.

The applicable restrictions read as follows:

“Each lot in said Braes Manor, Section Two, shall be used for residential purposes only, upon which family dwellings may be erected as follows:
“a) A single family dwelling of one, one and one-half or two stories may be erected on any lot in said Section Two * * *.
“b) A duplex apartment or multiple units dwelling building may be erected on Lots * * * 4, 5, and 6 * *

Lots 4, 5, and 6 belong to defendants, upon which they have erected apartment buildings (and which is permitted by the foregoing restrictions). Lot 8 belongs to one of the plaintiffs, upon which he has erected a dwelling house. Lot 7 was vacant when purchased by defendants. Defendants not having adequate parking spaces for the tenants in their apartments located on lots 4, S and 6; paved lot 7; erected carports thereon; put a fence around the outside of it; and utilize it as a parking lot for the tenants of the apartments (on lots 4, 5 and 6). Plaintiffs’ suit sought to enjoin such use of lot 7, (for among other reasons), as violative of the restrictions; sought mandatory injunction requiring defendants to remove the pavement, carports and fence from such lot; and sought damages.

It is our view that defendants violated the restrictions applicable to lot 7. Lot 7 is restricted to residential use, and to erection of a one, one and one-half, or two story family dwelling thereon. Use as a parking lot of lot 7, for tenants of lots 4, 5 and 6 is not such residential use as prescribed and required by the restrictions. A parking lot is not a residence, and use as a parking lot for the residents of lots 4, 5 and 6 does not, in our view, constitute “residential use” as prescribed by the restrictions.

The trial court should have rendered judgment enforcing the restrictions. The judgment is accordingly reversed and remanded to the Trial Court with instructions to enter permanent injunction restraining defendants from using lot 7 as a parking lot; and requiring defendants to remove the paving, carports and fencing, used in connection with parking, from such lot.

Reversed and remanded.


author: CLAYTON, Justice.

text:
    Richard E. GRAY, Appellant, v. L-M CHEVROLET COMPANY et al., Appellees.
    No. 5576.
    Court of Civil Appeals of Texas. El Paso.
    April 17, 1963.
    Rehearing Denied May 29, 1963.

      John J. Watts, James D. Cunningham, Odessa, Johnson & Dionne, Ft. Stockton, for appellant.
    McDonald, Shafer, Gilliland & Davis, Odessa, Upton, Upton, Baker & Griffis, San Angelo, for appellees.
   CLAYTON, Justice.

This is an appeal from a “take-nothing” judgment entered in a suit filed in Pecos County, Texas in which appellant asked for damages for personal injuries suffered by his wife in an automobile accident in which a car being driven by appellant, his wife being a passenger, was struck from the rear by a car owned by the L-M Chevrolet Company and being driven by Enedina Villa Perez. In answer to special issues, the jury exonerated appellees of any negligence; found that the collision was the result of an unavoidable accident and further, that the said Enedina Villa Perez, immediately before and at the time of the collision, acted prudently in the face of an emergency which was not the sole proximate cause of the collision; answered all damage issues based upon appellees’ negligence adversely to appellant, but found that appellant would incur $4000.00 in doctors, nurses, medical and hospital expenses in the future as a result of injuries sustained by appellant’s wife in the accident.

Appellant's first point of error makes complaint of the trial court’s having overruled objections by appellant to the action of appellees’ counsel in quoting passages from an article in the Journal of the American Medical Association while cross-examining a medical witness for appellant. Basis for the complaint was that the passages contained “statistics from a medical journal showing how many people recovered from whiplash injuries when same was never recognized by authorities and when same was prepared by a medical student and when same was not offered for purposes of impeachment but solely for original evidence.”

We find at an earlier point in the Statement of Facts that while a medical witness for appellees was being cross-examined by counsel for appellant the witness was asked this question:

“Q * * * You would agree with •the journal of the American Medical Association, wouldn’t you?
“A Yes, sir.”

After which, over objection of counsel for appellees, the appellant’s counsel was allowed to cross-examine the witness with an article delivered before the Association in New York in 1953.

At the later point in the Statement of Facts which sets out the cross-examination by appellees’ counsel of the medical witness presented by appellant, the following questions and answers are to be found:

“Q You recognize it (Journal of American Medical Association) as being a book that the — that is put out by the members of the medical profession for the doctors?.
“A Yes, sir.
“Q And the very best doctors write articles in there for the purpose of educating doctors?
“A Of course articles are published, and the Board decides which articles should be published.
“Q But they are published for the education of doctors, generally?
“A Yes, sir.”

Whereupon, over the above-noted objection of appellant, counsel for appellees was allowed to cross-examine the witness with an article in the Journal written by a Dr. Nicolas Gotten published in October, 1956, which apparently included the results of a survey conducted by a senior student of the School of Medicine, University of Tennessee.

We have examined the many authorities cited by appellant in support of this point of error. From the case of Texas Employers’ Insurance Association v. Nixon, 328 S.W.2d 809 (Civ.App.1959, Ref. N.R.E.) the following quotation is emphasized:

“ * * * We think the better rule is that a medical witness cannot be cross-examined by reading excerpts to him from a medical book and asking him whether he agrees or disagrees therewith, unless he has either recognized such book as authoritative or has based his opinion in whole or in part thereupon.”

and from Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949):

“When a doctor testifies as an expert relative to injuries or diseases he may be asked to identify a given work as a standard authority on the subject involved; and if he so recognizes it, excerpts therefrom may be read not as original evidence but solely to discredit his testimony or to test its weight. Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260; Texas & P. Ry. Co. v. Hancock, Tex.Civ.App., 59 S.W.2d 313 (er. ref.).”

Although the above quotations set out the prevailing law on the subject, we do not find them in conflict with the ruling of the trial court in allowing the complained-of cross-examination from an article published in a Journal that was proven to be authoritative by both parties to this litigation. No request was made to limit the purpose for which the evidence thus adduced could be considered by the jury. 23 Tex.Jur.2d 173, ¶122. Moreover, we are inclined to agree with appellees’ counterpoints directed to appellant’s first point, that if there were error in allowing the cross-examination, it was harmless error under the provisions of Rule 434, T.R.C.P., since we are not of the opinion “that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case”. The article referred to in cross-examination by appellees’ counsel dealt with percentage of recoveries in whiplash cases, and had nothing to do with the question of liability of appellees. The jury found that appellant’s wife had not recovered from her injuries, but that appellant would have to expend $4000.00 in future doctors, nurses, medical and hospital expenses as a result of the injuries, a finding adverse to that sought in the cross-examination by appellees’ counsel.

It might be added that since the jury arrived at the conclusion that the injuries were suffered as the result of an unavoidable accident, it would be unlikely that they were influenced in such conclusion by the article to which reference was made.

Appellant’s first point is overruled.

In the course of re-direct examination of appellant’s wife, counsel asked her to stand with her back to the jury and the following ensued:

“Q. Is this the portion of your neck where the muscles have wasted away?
“A. Yes, sir, you can see how it comes down here and humps out. These muscles have given way and caused it to look like that.
"Q. Was it this way before the accident ?
“A. No, sir. My shoulders were clear.
“Q. Do you have some bumps, up here ?
“A. There is a much greater sunken in place on the left side, which anybody can feel there, by feeling of it.
“Q. We would like the lady on the jury to feel of those muscles and that sunk-in place.”

Objection was made by appellees to this request that the lady juror feel the muscles and the sunk-in place referred to, and the objection was sustained to this request, but not to the testimony. Point of Error No. Two was assigned to this ruling of the court. It should be said at the outset, without reference to the authorities, that had appellant’s request been granted, the only benefit to be derived therefrom by appellant would have been to place the lady juror in possession of information not shared by the other jurors; or to have had the lady juror draw her own unskilled conclusion from what she felt, and then to have imparted such conclusion to the other jurors. The impropriety of either result is obvious. However, we have been cited by appellees to the Baylor Law Review article of George Chandler to be found in XIII B.L.R. 273 (1961), “Exhibition of Injuries of Plaintiff in a Civil Case.” The author calls attention to the distinction, in several jurisdictions, between a “demonstration" of a personal injury and an “exhibition” of a personal injury:

“ * * * A demonstration is defined as: ‘Acts done by the injured person, such as flexing muscles, etc.; or to acts done by another person, such as a medical expert, directly on or with respect to the plaintiff’s body or one of its parts or members.’ Thus, the primary distinction between an exhibition and a demonstration is that an exhibition involves a mere passive act, such as merely exposing an injured limb, etc. to the jury, while a demonstration involves a more overt act by the plaintiff. The courts are much more liberal in construing the harmful effect of an exhibition, as distinguished from a demonstration.”

The article refers to the Texas cases of Coca Cola Bottling Co. v. Hankins, 245 S.W.2d 740 (Tex.Civ.App., 1952, r. o. g.) and Travelers Ins. Co. v. Epps, 191 S.W.2d 100 (Tex.Civ.App., 1945, ref. N.R.E.) and summarizes the Texas rule on the point as follows:

“ * * * The Texas rule is pointed out in the Epps case, where the Court held that the plaintiff may in the discretion of the trial court, exhibit the injured portion of his person to the jury, ‘so long as the demonstration is not conducted in such a manner as to pass beyond the limits of introducing proof of the extent and nature of the injury and become merely a method of inflaming the minds of the jury.’ ”

We feel that, in addition to the reasoning set out above, the requested action on the part of the lady juror would have exceeded the boundaries of a mere passive presentation of the appellant’s injuries, would have been a “demonstration”, and was objectionable. Furthermore, this case was decided on the question of liability, as previously pointed out, and not on the nature or extent of injuries suffered.

Appellant’s second point is overruled.

Appellant’s third point of error is directed at arguments of appellees’ counsel. We have carefully read the complained-of arguments which are set out in full in appellant’s brief, and without specifically referring to those portions deemed by appellant to be objectionable, since no useful purpose would be served thereby, find none of the vices assigned to the remarks by appellant which would require reversal. The cases cited and quoted from in appellant’s brief are distinguishable on the facts. Appellant’s third point must be overruled.

The jury found that the collision in question was the result of an unavoidable accident and further found that appellee Enedina Villa Perez was acting in an emergency, properly defined, immediately before and at the time of the collision, and that she acted with that degree of care which a person of ordinary prudence in the exercise of ordinary care would have used under the same or similar circumstances. In his fourth and fifth points, appellant assigns error on the part of the court in refusing to withdraw from the charge to the jury the issues of “emergency” and “unavoidable accident” since the issues were not raised by the evidence and the findings by the jury on these issues were so conflicting as to render the verdict incomplete and meaningless.

Both “emergency” and “unavoidable accident” were plead by appellees and we find sufficient evidence in the record to warrant the submission of each of them as defensive issues in the case. As to the question of whether the jury’s findings in the instant case are in irreconcilable conflict, we apply the test laid down by the Supreme Court of Texas in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949) and as quoted in the later case of Nichols v. Musgrave, 285 S.W.2d 397 (Tex.Civ.App.1955; no writ hist.), as follows:

* * * For the answers to special issues to be in fatal conflict, ‘the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.’ Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991.
“Under the verdict of the jury no judgment could have been entered for Buell M. Nichols. There is no finding in his favor except that with respect to damages, and there could be no conflict in the answers of the jury under the rule set out by the Supreme Court in the case cited next above.”

Applying such test, we fail to find here that either one of the answers claimed to be in conflict, when considered in connection with the rest of the verdict except the issue with which there is claimed conflict, necessarily requires the entry of a judgment different from that which the court has entered, favorable to appellees. Failing to so find, we must overrule both appellant’s fourth and fifth points of error and affirm the judgment in this case.

Affirmed.

ON MOTION FOR REHEARING

Appellant urges on Motion for Rehearing that this court set aside its judgment affirming the judgment of the trial court, and presents five grounds therefor. The first relates to a ruling of the trial court permitting appellees’ counsel to quote statistics from the Journal of the American Medical Association. The second ground cites error of the trial court in refusing to permit a lady juror to feel the neck of the injured party. We feel that we have adequately treated these points in our opinion.

The third ground complains of the action of the trial court in overruling appellant’s motion for mistrial based on arguments of defense counsel. The Motion for Rehearing cites no authorities, but in appellant’s original brief the cases of Allmon v. Texas Electric Service Co., Tex.Civ.App., 242 S.W.2d 806, and Cross v. Houston Belt & Terminal Railway Company, Tex.Civ.App., 351 S.W.2d 84, are cited. We have again reviewed these authorities and in each of them we find obvious and incurable error in the argument of counsel.

In the instant case, the arguments of defense counsel were set out in full in plaintiff’s Bill of Exception No. One, filed as a 30-page supplemental transcript in this case, and substantially repeated in appellant’s brief. As stated in our original opinion herein, no useful purpose would be served in attempting to set out in full those portions of these arguments deemed by appellant to be objectionable. Suffice it to say that no-where do we find clearly objectionable features such as those found in the Alimón and Cross cases. In at least two instances here, objections of plaintiff’s counsel were sustained by the court and the jury instructed not to consider the remarks. Even had this action not been taken by the court, we fail to find reversible error in the remarks.

In the fourth and fifth grounds set out in the Motion for Rehearing, appellant cites error in the action of this court in sustaining the trial court’s refusal to withdraw from the jury the issues of “emergency” and “unavoidable accident”, and the claim that this court was in error in not holding that the jury’s affirmative answers to these issues were so conflicting as to render the verdict so “incomplete and meaningless as to require the granting of a new trial.” We stated in our original opinion that both “emergency” and “unavoidable accident” were plead by appellees, and that there was sufficient evidence in the record to warrant the submission of each of them as defensive issues in the case. As to the absence of irreconcilable conflict in the affirmative findings on both issues, we applied the Supreme Court test as laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985:

“The court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict.”

Here, the jury found (1) unavoidable accident, and (2) that the defendant, Perez, acted prudently in an emergency. Neither finding would support a judgment for the plaintiff. We recognize that the Little Rock rule was expressly modified under the particular circumstances in Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960), wherein its application would have resulted in an inability to enter judgment for either party, in which event the verdict would not be permitted to stand. However, in Ross v. Whiteside, 356 S.W.2d 497 (Tex.Civ.App., 1962 — no writ hist.) the court stated:

“The test or rule announced in the Little Rock case was qualified by our Supreme Court in Bradford v. Arhelger, [161] Tex. [427], 340 S.W.2d 772, but the qualification was not such as to affect the application of the rule stated to the instant case.”

We find the same to be true here, and an application of the Little Rock test or rule eliminates any irreconcilable conflict in the jury’s findings on the two issues of “emergency” and “unavoidable accident” and supports a judgment for appellees.

The Motion for Rehearing is accordingly overruled.


author: WALTER, Justice.

text:
    GREAT WESTERN PRODUCERS COMPANY et al., Appellants, v. Olga LANG et vir, Appellees.
    No. 3818.
    Court of Civil Appeals of Texas. Eastland.
    May 24, 1963.
    Kenley, Ritter & Boyland, Longview, for appellants.
    Gordon Wellborn, Houston, Phenix & Keeling, Henderson, Fields & Fields, Athens, for'appellees. . .
   WALTER, Justice.

Olga Lang and her husband filed suit against Great Western Producers Company and its truck driver, Elvin Ernest Brooks, for damages as a result of a truck-automobile collision. The court overruled the defendants’ plea of privilege. They have appealed contending there was no evidence that they were guilty of negligence which was a proximate cause of the plaintiffs’ damages. They also contend such findings are against the great weight and preponderance of the evidence.

Appellees rely upon subdivision 9a of Article 1995, of Vernon Annotated Texas Civil Statutes to hold- venue in Henderson County, the county where the collision occurred. This subdivision places upon the appellee the burden of establishing by a preponderance of the evidence negligence and proximate cause in Henderson County. The appellees pleaded that the appellants were guilty of negligence which was a proximate cause of the collision by alleging ten specific acts. We have concluded that the evidence established that the truck driver at the time and on the occasion in question failed to keep a proper lookout and failed to yield the right of way.

The appellees introduced the depositions of the two drivers. Mrs. Lang testified substantially as follows: She was travelling west in the center lane of a four lane highway on Corsicana Street in the City of Athens. She was travelling in the through lane as she approached the intersection of Corsicana and Gant Streets. A Gulf Oil Company truck had been travelling west in the outside or north lane of traffic until it stopped at such intersection to make a right hand turn into Gant Street. She had been driving in the inside or south lane going west on Corsicana Street for several blocks before she reached said intersection. After she entered the intersection, the truck driven by the appellant Brooks appeared suddenly “coming right at me.” She was in the intersection before she saw Mr. Brooks’ truck. She was familiar with this intersection. The first time she looked to her right was at a time when the Gulf truck was between her and the traffic on Gant Street. She was asked the question “You couldn’t see anything then, could you, whether it was there or not?” and she answered “No, but I had the right of way.” The next time she looked to her right she was already in the intersection and Mr. Brooks’ truck' was in the intersection “coming right suddenly at me.” Brooks’ truck hit her hard enough to damage and cave in the right hand side of her car and threw her over against the door and bruised her. When asked if she tried to avoid the accident she said that she pulled over as much as she could and when she stopped she was straddling the division island. The pull bar of the front bumper of the truck hit the center of the front fender and damaged her car through the front door and the back door and into the back fender.

Brooks testified that he had been employed by Great Western Producers as a truck driver since 1957 or 1958. Before the accident he had come from the refinery at Irving and was headed for Henderson to pick up a load of petroleum products. He was operating a 1958 International truck with a 6,050 gallon tank trailer on it. He was wearing a hearing aid at the time his deposition was taken and testified he had been wearing it ever since 1945. He was travelling south on Gant Street and Mrs. Lang was headed west on Corsicana Street immediately prior to the accident. He had a stop sign facing him as he approached said intersection and he stopped in obedience to the sign. The pavement was dry, it was clear and there was no visibility impairment. The Gulf truck that he stopped in the north lane of Corsicana Street had its blinkers on indicating it intended to make a right hand turn into Gant Street heading north. When asked “Now how far back from the intersection was the Gulf truck parked at the time of the wreck?” he answered “I wouldn’t call it parked because he was about four foot from the curb and he was moving when I seen him, when I pulled up and made the second stop there and he turned on his turning signals.” He was asked the further question “Actually he never was stopped was he?” and he answered “Yes, he had to stop, he couldn’t come in that intersection with me because, there would be a swing he would of had to make to get into the intersection, he’d of come into the front of my truck.” The first time he saw Mrs. Lang’s car was when it came out from behind the Gulf truck that was starting to make a right hand turn into Gant Street. The Gulf truck was too high for him to see over it and he didn’t see Mrs. Lang before she came out from behind the Gulf truck. The tow hitch on the front end of his truck extends out about four inches. Mrs. Lang tried to go around him by driving across the center line but his tow hitch caught the right side of her car. As he approached the intersection, he stopped in obedience to the stop sign and then made another stop when he saw the Gulf truck was going to make a right hand turn into Gant Street and he said “then I pulled on up and when this Gulf truck, seen this Gulf truck coming and I stopped again and he turned, had his blinkers on to make a right hand turn and then is when I came on out when he stopped, I didn’t come out until he stopped.” And when asked “Was there enough room there for two trucks side by side on North Gant street?”, he answered “Side by side, there would of been enough room for them to set side by side but there wasn’t enough room for one to run into Gant street with one setting there at the stop sign.” He testified that as he entered the intersection he knew that the traffic on Corsicana Street had the right of way.

In the case of Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, our Supreme Court said:

“Before entering and while crossing the heavily traveled, through street, it was Mrs. Ricketts’ duty not only to look but to observe in a careful and intelligent manner the traffic and general situation at and in the vicinity of the intersection, including the speed and proximity of vehicles approaching from either direction. The evidence demonstrates and the jury has found, in effect, that she had the right of way, but this does not excuse her from exercising ordinary care for her own safety. Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which' was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95.
“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.”

We have concluded that the appellees discharged their burden of proving negligence and proximate cause by a preponderance of the evidence.

We have considered all the evidence and we find that the court’s judgment is not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    RYDER TRUCK RENTAL, INC., Appellant, v. ACE SALES COMPANY, Inc., Appellee.
    No. 11093.
    Court of Civil Appeals of Texas. Austin.
    May 22, 1963.
    Rehearing Denied June 13, 1963.

      Eugene Coffey, Nye, Cohn & Morris, Corpus Christi, for appellant.
    Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellee.
   HUGHES, Justice.

This suit was by Ryder Truck Rental, Inc., appellant, against Ace Sales Company, Inc., appellee, to recover $2,000.00 alleged to be the balance due appellant on an account incurred by appellee’s predecessor, Fred Bading d/b/a Ace Sales Company, it being alleged that appellee had assumed the payment of such account.

Trial was to a jury which resulted in an instructed verdict and judgment for appel-lee.

The evidence is rather detailed and lengthy, but the essential facts are few and simple.

Fred Bading established the business of operating a beer distributorship, also for the transportation of shrimp, in September, 1956, under the name of Ace Sales Company. At this time Mr. Bading borrowed $15,000.00 from the mother of Hubert A. McNally, Jr., Mrs. McNally died shortly thereafter and her son inherited the note from her. In January, 1959, when there was due $15,000.00 on this note, Mr. Bading, who was still operating the business of Ace Sales Company, desiring to go into other work, proposed to Mr. McNally to take the business over and operate it as his own. Mr. McNally agreed to this and stated that “if there was enough there with new financing, that I had available, that I would cancel his note at a later date.”

Mr. McNally testified:

“Q Are you telling the Court and this Jury that you had no idea what this company was worth when you walked in and took over ?
“A I was faced with an opportunity to where I had a fifteen thousand note and Mr. Bading more or less told me that he was going to give up the business, and he said if you can take the assets and do something with them, will you consider cancelling, cancelling my note?
“Q Isn’t it a fact, Mr. McNally, that he said if you take this company and cancel my note, he would appreciate it, he would appreciate it if you would take it off of his hands ?
“A He didn’t beg me, though.
“Q That was the idea of you taking the company, was it not?
“A No, not for that reason, but to protect my own interest.
“Q And you did take over Ace Sales Company in January of 1959 and continue to run it as Ace Sales Company, is that correct?
“A That is right.
“Q Now, were you aware of a contract with Ryder Truck Rental when you took over Ace Sales Company ?
“A I knew the trucks were rented.
“Q Had you seen that contract?
“A Not at that time, no.
“Q Was it among the records of the the Ace Sales Company?
“A I assume, yes, it was.
“Q Did you have an occasion to refer to that contract?
“A No, no reason whatsoever.
“Q But you did continue to operate the trucks under that contract?
“A I was forced to.”

A few months after taking over the business, Mr. McNally cancelled the $15,-000.00 note.

The assets of Ace Sales Company at the time Mr. McNally took them over were worth about $2,000.00.

The Ace Sales Company was incorporated under the name of Ace Sales Company, Inc., in June, 1959. The three in-corporators were Mr. and Mrs. McNally and Fred Bading, the latter receiving 5 of 500 authorized shares of stock for which' he paid nothing and which he transferred to the corporation without consideration.

From January, 1959 on, Mr. Bading owned no interest in and took no part in conducting the business of Ace Sales Company, or Ace Sales Company, Inc.

There is no direct evidence of an agreement, oral or written, that either Mr. Mc-Nally or the corporation would assume or pay the outstanding debts of the company, including that owing appellant.

There is evidence that Mr. McNally did pay some of these outstanding debts and that he paid appellant about $1,200.00 on its debt or account incurred by Mr. Bading.

The evidence also is that from the time McNally took over this business that he, or later the corporation, paid all of its current account with appellant, and that neither he nor the corporation were indebted to appellant for any debt incurred by either of them.

There is in evidence a statement of account rendered by appellant February 27, 1960, to Ace Sales Company which is signed by Mr. McNally for the company which states, “The above balance $3,166.41, is correct, all credits which we claim having been previously allowed.” Regarding this statement Mr. Jack Hazeltine, an employee of appellant, testified.

“Q Mr. Hazeltine, you stated that you delivered that presently to Mr. McNally, did you discuss that balance with Mr. McNally?
“A This balance has been in discussion for some length of time and this had been, there had been a balance that we had both agreed upon, and this was merely putting it in writing and the signature.
“Q And he did sign it, then, in your presence?
“A Yes, sir.
“Q Did he at that time state that he did not owe that money ?
“A No.
“Q Did he state that he would pay that money ?
“A He would pay it as soon as possible, yes.
“Q Did he give any reason for not having already paid it?
“A No.”

A letter from Ace Sales Company, Inc., dated January 18, 1960, signed by Mr. McNally addressed to appellant which recites that “As provided in our agreement dated September 15, 1956,” canceled the lease of a White truck tractor. The significance of this letter is that the agreement of September 15, 1956, to which it refers, was between appellant and the company when it was owned and operated by Mr. Bading, and under which the indebtedness sued on was incurred by Mr. Bading for use or rental of the same White truck tractor subsequently rented by Mr. McNally and the corporation.

A check stub is in evidence which shows that a check was issued to appellant on December 24, 1960, for truck rental and it bears the notation “Bal. 2000.00.”

On February 10, 1960, appellant wrote Mr. Bading canceling the contract with him of date September 15, 1956.

On February 29, 1960, appellant entered into an agreement with' appellee similar to the previous agreement it had with Mr. Bading. This was the first written agreement between these parties.

It is our opinion that the purchase of the business by Mr. McNally, the manner of its operation, the payment of some of its debts, including a portion of the account sued on, oral promises by him to pay such account, and his written acknowledgment that such account was just and correct, constitute sufficient evidence to support a fact finding that Mr. McNally assumed such account and such debt became his own at the time he acquired the business of Ace Sales Company, and as a part of the consideration therefor. The Trial Court, therefore, erred in directing a verdict.

As to the transfer from McNally to the corporation which he and his wife owned, the law is that when individuals or partners form a corporation which takes over all the assets of the individuals or partners, the corporation assumes the liabilities of the partners or individuals, as a matter of law. Baca v. Weldon, 230 S.W.2d 552, San Antonio Civil Appeals, writ ref., n. r. e., and many authorities therein cited.

The reason for this rule is that, under such circumstances, there is an implied assumption of the debts or that the business is the same and is merely being conducted under a new guise. English Freight Co. v. Knox, 180 S.W.2d 633, Austin Civil Appeals, writ ref., w. o. m., quoting from 18 C.J.S. Corporations § 121.

No business, corporate or not, can long survive or prosper if it does not pay or arrange or agree to pay its debts. This basic fact of economic life was well understood by Mr. McNally as shown by this excerpt from his testimony:

“Q Mr. McNally, let’s go back to January of 1959, when you acquired Ace Sales Company, were there any liabilities of the company at that time ?
“A I am sure there were, but I didn’t acquire them.
“Q Did you pay the light bill that was outstanding, did you pay any light bill in January?
“A As I explained before, Mr. Coffey, I had to stay in business, I paid that bill, you know you don’t argue with the light company, they turn the lights off.”

Creditors, other than utility companies, have remedies for collecting their debts, while perhaps not as speedy as those referred to by the witness, are just as effective.

Rule 268, Texas Rules of Civil Procedure, provides that a motion for directed verdict shall state the specific grounds therefor. The motion as made by appellee did not include as one of the grounds the contention now made by appellee in its brief that appellant’s suit is barred by the two year statute of limitations. Art. 5526, Vernon’s Ann.Civ.St. Appellant does not brief the force of this contention, probably for the reason that the motion for instructed verdict was not predicated thereon.

Since this question may arise upon re-trial, we briefly state our views with respect thereto. It is our opinion that the acknowledgment made by Mr. McNally for the Ace Sales Company to appellant February 2, 1960, duly signed by him, is a sufficient acknowledgment of the justness of the debt sued upon by appellant under Art. 5539, V.A.C.S., provided such acknowledgment is properly pleaded. 37 Tex.Jur.2d, Limitations of Actions, Sec. 178. See generally same text Secs. 157-184. This suit was filed June 1, 1961, less than two years from the date of the “new promise.”

The judgment of the Trial Court is reversed and this cause is remanded.

Reversed and remanded.