author: SELLERS, Justice.

text:
    Barbara Ann ARMSTRONG, Individually and as Guardian of the Person and Estate of Kendal Neil Armstrong, a Minor, Appellants, v. TEXAS POWER AND LIGHT COMPANY et al., Appellees.
    No. 190.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 24, 1966.
    Rehearing Denied March 17, 1966.

      Wm. Emerson Stone, Jr., Stone & Stone, Jacksonville, Russell M. Baker, as guardian ad litem for Kendal Neil Armstrong, a minor, Dallas, for appellants.
    Robert A. Wooldridge, Burford, Ryburn & Ford, Dallas, for appellees.
   SELLERS, Justice.

This suit was brought by Barbara Ann Armstrong in her individual capacity and as Guardian of the person and estate of Kendal Neil Armstrong, a minor, against the Texas Power and Light Company and its foreman, D. M. Myers, to recover exemplary damages under the laws of this State for the death of Morris Neil Armstrong, the husband of Barabara Ann, and the father of Kendall Neil, the Plaintiffs in the trial court and appellants here. The deceased was covered by Workmen’s Compensation Insurance which has been paid.

The case was tried to a jury and at the close of the evidence, the Court withdrew the case from the jury and rendered judgment for the defendants on the ground that the evidence wholly failed to raise an issue of gross negligence to be submitted to the jury. From this judgment, the appellants have duly prosecuted this appeal.

The deceased was electrocuted while working with an eight-man crew of Texas Power and Light Company in removing certain steel wire on its line somewhere near Weatherford, Texas, along Farm-to-Market Road No. 920, and replacing the same with a larger wire in order to give its customers better service.

The members of the crew were as follows:

(1) The foreman, Mr. D. M. Myers (or Doris Myers), S3 years old at the time of this accident, a man of 27 years’ experience with the Texas Power and Light Company, who is on the scene and in charge of this crew on the morning of June 2, 1960.
(2) A working foreman, Mr. O. W. “Ike” Shields, a man of 14 years’ experience in that position with the Texas Power and Light Company with 32 years’ experience in the electrical field at the time of the accident in 1960, who is on the scene and at the time of the accident was pulling the old 3-strand steel wire over his left shoulder with leather gloves on his hands. Mr. Shields had been on Mr. Myers’ crew as a working foreman for about four to five years.
(3) A truck driver and utility man, Mr. A. F. “Coon” Hunt, who had been on Mr. Myers’ crew for 14 years, who at the time of the accident was helping Mr. Shields pull on the 3-strand steel wire over his left shoulder wearing leather gloves also.
(4) A Class B lineman, Mr. Ira T. Fuller, who at the time of the accident was northwest of Mr. Myers and north of the inline position of the old 3-strand steel wire midway between poles 6 and 7 east of F. M. 920. Mr. Fuller was holding a running line around the 3-strand steel wire to keep it away from the hot phase.
(5) A Class A lineman, Mr. Morris Neil Armstrong, who was on pole 4 waiting for sufficient slack to be pulled in the 3-strand steel wire so that he could push the wire off of the cross-arm and down the guy wire. This is the lineman whose death is the subject of this action for exemplary damages on gross negligence.
(6) A Class A lineman, Mr. Bennie Swann, who was going south between pole 2 and pole 1 headed for the first pole south of pole 1 to untie the 3-strand steel wire on the pole.
(7) Mr. Gene Ray Roddy, a brother-in-law of Mr. Armstrong, who was employed by the company from February, 1960, to October, 1960, and who was classified as a utility man (or grunt) on Mr. Doris Myers’ crew. Mr. Roddy was two spans south of where the accident happened where Morris Neil Armstrong was located on pole 4. He was serving as a grunt for Mr. Bennie Swann.
(8) Mr. Jay Huff, a Class A lineman for 9 years, with 16 years’ experience with the company, who had been on Myers’ crew for two years, was on pole 1 with rubber gloves on with the 3-strand steel wire in his hands when the accident happened.

The acts of negligence alleged to have occurred are as follows:

(a) In that Myers assumed the responsibility to act as flagman and failed to do so;
(b) In that he failed to delegate a workman to act as flagman;
(c) In that he, after noticing that an automobile was approaching on F. M. 920 in close proximity to the in-line position of poles 5 and 6 voluntarily turned loose the bull line;
(d) Is the same as (c), except that it alleges that he turned it loose prior to notice;
(e) That he sagged the 3-strand steel wire into the travelled portion of F. M. 920;
(f) That he failed to hold a tailboard conference prior to the accident;
(g) That he failed to assign a sufficient number of men to do the removal job with safety;
(h) That he failed to adopt a proper method;
(i) That he failed to supervise the men in his crew prior to the accident.

Certain safety rules of Texas Power and Light Company governing the duties of the employees are as follows:

(1) To hold a tailboard conference where he shall explain the job in general and assign each man his particular part.
(2) To assign a sufficient number of men to do the job safely and the defendant company by its Rule 201(D) holds the foreman responsible for this duty.
(3) To delegate a competent workman to act as flagman when removing wires across public streets or public highways.
(4) To closely supervise the men in his crew at all times rather than engage in the actual work.
(5) To bring about strict compliance with the safety rules and regulations.
(6) For holding a special safety meeting with his crew when about to begin a particularly difficult job, at which meeting the foreman shall discuss all details of the job and shall satisfy himself that all the men involved in the work understand the precautions that must be observed and the procedure which is to be followed.
(7) The entire responsibility of the safety of men engaged in live line work rests with the foreman.

The record discloses that this crew had been engaged on this job several days before the accident that happened to Mr. Armstrong; that they had crossed this Farm-to-Market Road No. 920 several times and on each occasion the foreman had caused a flagman to be stationed on the road to prevent traffic from coming in contact with the wire when it was lowered onto the road as had to be done when removing the old wire.

This accident happened at a crossing on F. M. 920 where the electric line crossed the highway at an angle as shown by Appellants’ Exhibit No. 16. Poles 6 and 7 were on the East side of the highway and poles 5, 4, 3 and 2 were on the West side of the highway. On these poles was a wire carrying 7,200 volts of electricity which was energized at all times. The three strands of steel wire had been de-energized and were being removed. The job of removing these steel wires was not regarded as extra hazardous by this experienced crew. The appellee, D. M. Myers, was foreman in charge of this crew. In his absence, however, there was another foreman, Mr. Shields, who was in charge of the crew.

On the morning of this accident, Mr. Myers was late in arriving at the place of work due to the fact that he and another employee brought out a load of crossarms and unloaded them on the job. When Mr. Myers did arrive, Mr. Shields had already assigned the men to their positions on the job and this took Mr. Armstrong to pole 4 where he was to loosen the steel wire from the crossarm and when given the proper signal, was to push the steel wire off of the crossarm down to the ground. When Mr. Myers reached the job, he was advised by Mr. Shields to handle the bull rope. This bull rope was attached to the steel wires over, at, or near pole 7 and its purpose was to keep the steel wire from sagging and was to hold the wires in place until Mr. Shields gave him the word to slacken on the bull rope. At this time, Shields and another employee were down near pole 3 pulling this wire to the south. It was some thirty minutes after Mr. Shields told Mr. Myers to operate the bull rope before he was given the word to slacken the rope. Mr. Myers let the rope out gradually until he got to the end of the rope, then just before he let go of the rope or just after releasing the same, which is not clear from the evidence, Mr. Myers realized that he had not placed a flagman in the road to stop the traffic and he looked up the road and saw a car approaching the point where the wire was then down in the road. Myers says when he saw the car that he made an effort to get to the road in time to stop the car or push the wire down to the ground so the car would go over the same. He was too late, however, and the car struck the wire just above the bumper with such force as to jerk the wire from the hands of Mr. Shields and the other employees who were pulling the wire to the south and causing Mr. Armstrong on pole 4 to come in contact with the 7,200-volt wire which caused his death.

Since the appellants’ case is dependent largely upon the evidence of Mr. Myers, we quote the following from his evidence:

“Q All right, when you walked across FM 920, Mr. Myers, you said a minute ago that you did so or you had the intention out there that you would station some men as flagmen, is that correct ?
“A I said I had it in my mind to put some flagmen out there before the wire was let down.
“Q In other words, before you ever handled the rope or responded to any signals from the west side of the road to slack off, or ‘start feeding us some, we’re ready to puli’, that you were going to put some flagmen there, is that correct ?
“A I had in my mind to, yes. That was my thought.
* * *
“Q Now, all those things would have been done while you were waiting over at pole 7, is that correct?
“A Yes.
“Q And during that time, you still intended to designate and delegate a flagman to be on FM 920, is that correct?
“A Yes, it just slipped my mind, I guess.
“Q Are you telling this jury that you intended, all the way from 5, from south of pole S over across that road, to pole 7 and east of pole 7 and while that other work was going on back over there west of that road, having that intention all that time and then, it just slipped your mind?
“A Yes, that is right.
<( * * *
“Q All right, that’s what I want but before you ever let out any slack, in response to the signal, Mr. Myers, you knew that you hadn’t delegated anybody to serve as a flagman, didn’t you ?
“A Well, I assume, yes that I was going to have some flagmen out there.
“Q Well, my question is didn’t you know, Mr. Myers, that before you had ever let out one foot of that line that you had not designated a flagman or flagmen to flag FM 920 ?
“A I assumed that I had, it just slipped my mind, I don’t know, you know how things — just forget, I don’t know what was wrong.
(( * * *
“Q All right, and isn’t it a fact, Mr. Myers, that when you were over there on June 2nd, that you also knew before you ever let out one foot of slack after the signal had been given that there wasn’t any man on that crew acting on the north side of that line or the south side of that line as a flagman?
“A I knew there wasn’t, yes.
“Q Didn’t you know on June 2nd, 1960, that there wasn’t a man to the north acting as a flagman and that there wasn’t a man on the south of that line acting as a flagman and that you knew you that before you ever let one foot of slack off of pole 7, from that bull line?
“A No.
“Q What are you saying to the jury, Mr. Myers?
“A I told you that I assumed I had and forgot about the thing and I don’t know what come over my mind or just got away from me, slipped, I don’t know.
“ * * *
“Q How it (wire) got into that travel portion of FM 920 ?
“A All right, they were pulling it and when they got to the end of the rope, I looked both ways as far as I could see and didn’t see nobody and when I turned it loose — I turned it loose and right then I realized there wasn’t a flagman out there, when I turned that rope loose and I tried to get to the road to hold that wire down on the road.
« 5ji * Hi
“A Other than when I turned it loose, as I said, I realized I didn’t have a flagman out there and that was when I started—
“Q (Interposing) Started, in other words, you started to the road, you tell this jury, when you realized you didn’t have a flagman, is that correct ?
“A That’s right.
a H« H* Hí
“A When I turned it loose, I looked back that way and could see it, I saw a car coming, yes. That’s when I realized I didn’t have a flagman and started. * * * When I saw the car coming I realized I didn’t have a flagman and started over.
it * H< *
“Q Now, I believe you told this Jury a little while ago that when you were over there by pole 5, when you were on top of that pole, that you had intended to designate and delegate some flagmen, isn’t that correct?
“A Yes, sir.
“Q That you had that intention all the way across FM-920 down that ditch and over to pole 7 ?
“A Yes, sir.
“Q And that you continued to have that intention until such a point as you then forgot about it and realized that you hadn’t done it until you had already turned that rope loose, is that correct?
“A That is right.
a Hi ‡ ‡
“Q In other words, you were going to watch the cars after you turned it loose, rather than before?
“A After I turned the rope loose, I looked back and saw the car coming and I knew I didn’t have a flagman and I started to the road to flag.
“Q Was anything said by either of you, Mr. Myers, with respect to a flagman?
“A No, sir, not that I remember offhand.
“Q All right, what were your intentions at that time and your purpose and design so far as a flagman was concerned before you began actually, this work ?
“A Before we started slacking off that rope, I really intended to have a flagman.
“Q Had you always had a flagman when you were on the job on a similar sort of project or work?
“A Yes, sir, to my best knowledge, yes sir, every time that we taken-out.
“Q The rules provided that you were to hire a flagman where you were taking down or stringing wire across a public highway, didn’t it?
“A That is correct.
“Q And you intended to follow those rules and to obey them?
“A Yes, sir, I tried to.
* *
“Q (Mr. Burford) What was the reason, if you know, Mr. Myers, why you didn’t have a flagman?
“A Well, I can’t say, something just diverted my mind or got it on something else. It was just — I just can’t say why.
“Q Did you intend not to have one or did you intend to have one?
“A I fully intended to have one.
“Q When did you first realize, it came to you that you did not have a flagman there?
“A Well, when I got started slacking that wire off and the end of the rope got to me, all the slack was out of the rope as far as I was concerned, when I turned it loose and looked back, I realized then — when I saw that car coming, I realized we didn’t have a flagman.
“Q What did you do, then ?
“A Well, I tried to get to the road.
«‡ * *
“Q And stood there east of pole 7 all that time, and didn’t think about what was going on and what was — to start taking place as soon as they were ready to move it out?
“A Somewhere in there it slipped my mind about not having a flagman out there.
«* *

There was no tailboard conference held by Mr. Myers on the morning of the accident and the members of the crew were sent out by Mr. Shields and ordered to take up where they left off the day before. It is undisputed in the evidence that Mr. Myers had on each occasion, when removing this wire from over the highway, placed flagmen to stop the traffic. We place no particular importance to the fact that Mr. Myers failed to hold a tailboard conference on the morning of the accident since the crew was doing the same work immediately preceding for several days.

As we view the evidence, this case presents the sole question of: “Can a foreman and his company be held for gross negligence under the law of Texas for the foreman’s neglect or forgetfulness to comply with a plain safety rule of the company to place flagmen on the highway to stop traffic when removing wires across highways ?”

The Supreme Court, in a recent case, has defined the rule of law governing this character of case for recovery of exemplary damages. Sheffield Division, Armco Steel Corp. v. Jones, Jr., et al., 376 S.W.2d 825. It was there held:

“ * * * There is no question here as to the rule of law applicable to cases of this character where exemplary damages are sought. In one of the later expressions by this court, Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, we reaffirmed the definition stated in Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, namely that:
‘Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.’ (Emphasis added.)
“Additionally the court quoted from 13 Tex.Jur., p. 241, § 133 as follows:
“ ‘ “In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree of ‘gross negligence’ which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms ‘malice,’ ‘fraud,’ ‘oppression,’ ‘recklessness,’ and the like. Regardless of the expression which is used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages.’””

We are of the opinion that the evidence in this case wholly fails to meet the Supreme Court’s definition of gross negligence. The Supreme Court has said:

“ * * * In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree of ‘gross negligence’ which approximates a fixed purpose to bring out the injury of which the plaintiff complains. * *”

We think the evidence is sufficient to show that Myers should have foreseen and prevented the accident, but we find no evidence that he acted intentionally or wil-fully with a fixed purpose to bring about the accident of which appellants complain.

Our holding is supported by the case of Culter v. Gulf States Utilities Company, Tex.Civ.App., 361 S.W.2d 221, where the facts are very similar to the case under consideration, and the Beaumont Court of Civil Appeals denied recovery, and the Supreme Court denied a writ of error.

Appellants stress the case of Bernal et ux v. Seitt et al, 158 Tex. 521, 313 S.W.2d 520, as supporting their contention, and we have reviewed this case and find that it involves gross negligence under the Guest Statute and is distinguished in the Sheffield case, supra, from our fact situation and we fore-go a further discussion of the Guest Statute here.

The conclusions reached render unnecessary a discussion of the question of contributory negligence.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    NEUHOFF BROTHERS PACKERS, INC., Appellant, v. Frank McCAULEY et ux., Appellees.
    No. 4421.
    Court of Civil Appeals of Texas. Waco.
    Feb. 10, 1966.
    Rehearing Denied March 3, 1966.

      Turner, Rodgers, Winn, Scurlock & Terry, John H. McElhaney, Frank J. Scur-lock, Dallas, for appellant.
    John B. McNamara, Jr., Vernon L. Smith, Waco, for appellees.
   WILSON, Justice.

Plaintiffs’ action against defendant for damages alleged the operation of a cattle feed lot constituted a nuisance. No recovery was sought for property damage. Upon jury findings of damages and the existence of a nuisance, judgment was rendered for plaintiffs. We affirm.

Defendant’s first point is that the issue as to maintenance of a nuisance was erroneous as being multifarious or global because it grouped all plaintiffs’ allegations in one issue, thereby allowing the jury to decide liability in one issue, and deprived defendant of its right to have specific findings on the separate conditions alleged to constitute the nuisance.

The issue inquired whether “the operation and maintenance of the feed lot “by defendant” is a nuisance as to the plaintiffs.” Plaintiff pleaded that the cattle feeding operation created noxious and sickening odors and noises and produced and attracted flies, mosquitoes and other insects which invaded the property on which plaintiffs resided, and polluted their water supply. “Nuisance” was defined in the charge as any condition brought about' by a party in the use of his property, “so unusual and excessive that it necessarily causes damage or harm or inconvenience to another party in the use and enjoyment of his property, substantially, materially and unreasonably interferring with the latter’s comfort, and the proper use and enjoyment of his property, taking into consideration the nature and use of the property of both parties, and the character of the community in which they are situated, and which condition would be substantially offensive, discomforting and annoying to persons of ordinary sensibilities, tastes and habits living in the locality where the premises are situated.” Defendant made no objections to this definition.

Defendant requested seven issues en masse. These asked submission of whether defendant “is making a reasonable use of its property,” whether mosquitoes, flies and dust originated on defendant’s property, whether defendant was “maintaining a breeding place for flies” and mosquitoes which resulted in their presence in plaintiffs’ home, and whether each of these constituted a nuisance. Since these requests were not presented to the court for action, and there is no order of refusal as required by Rules 272, 273 and 276, Texas Rules of Civil Procedure, the right to complain of their non-submission is waived. Bituminous Cas. Corp. v. Jordan, Tex.Civ. App., 351 S.W.2d 559, 562 and cases cited. A request for submission of an issue is not a substitute for an objection. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, 179 and cases cited; Bell v. Missouri-K.-T. Railroad Co. of Texas, Tex.Civ. App., 334 S.W.2d 513, 516, writ ref. n.r.e.

Defendant objected to the first issue “because it is duplicitous in that the jury is called upon to decide many separate and distinct material issues in order to arrive at an answer.” This objection is too general to comply with Rule 274. Browning v. Graves, Tex.Civ.App., 152 S.W.2d 515, 520, writ ref.; Classen v. Benfer, Tex.Civ.App., 144 S.W.2d 633, 636, writ dism. c.j.; Panhandle & S. F. Ry. Co. v. Friend, Tex. Civ.App., 91 S.W.2d 922.

Defendant did include in its objections statements to the effect that “there should be issues submitted (a) as to whether flies originate at defendant’s feed lot, (b) that those flies invade the home of plaintiffs, and (c) whether such flies constitute a nuisance to plaintiffs.” Similar statements were made in the objections concerning noise, odor and dust. The assignments in the motion for new trial requisite under Rule 324, however, are that the court “erred in not submitting to the jury” separate, distinct and alternate issues “as to whether the respective items of complaint” so originated, invaded, etc., and that the court erred “in not submitting to the jury defendant’s requested special issues” concerning these and the reasonableness of defendant’s use of its property. These assignments will not support the point that the court erred in submitting the first issue because it was multifarious and global, under Rule 320, which requires the motion for new trial to “specify” grounds on which it is founded, and provides “no ground not specified shall be considered.” See Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407.

If it be considered that defendant’s objections to the charge and assignments in its motion will support the first point, nevertheless the 16 additional issues which it now urges should have been submitted would not only have pulverized the single ultimate issue submitted into numerous evi-dentiary issues which might be said to place undue emphasis on separate and numerous acts and omissions alleged, but they would have deprived plaintiffs of submission of the issue as to whether a combination of these constituted a nuisance.

It was not necessary to submit each condition described in the pleadings separately. The point is controlled directly by City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 14 A.L.R.2d 61, where the issue submitted was whether buildings which the City sought to have abated and demolished “constitute a serious fire hazard to life and property” under an ordinance. The Supreme Court held it was essential under the ordinance that the buildings constitute a nuisance. The plaintiff had alleged numerous facts which constituted the buildings fire hazards. The Court held the ultimate issues were those submitted: whether the buildings were fire hazards. But the facts alleged to make them such, it was said, “are evidentiary in their character, being facts that tend to prove that the buildings are fire hazards, facts to be considered by the jury in answering the issues submitted.” The points are overruled.

We have considered appellant’s point that the verdict is excessive, and it is overruled. Affirmed.


author: DAVIS, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Howard MYERS et al., Appellee.
    No. 7696.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1966.
    Rehearing Denied March 8, 1966.
    John Smith, Roberts & Smith, Longview, for appellant.
    Scott Baldwin, Jones, Jones & Baldwin, Wm. Huffman, Smith, Hall & Huffman, Marshall, for appellee.
   DAVIS, Justice.

A workman’s compensation case. Plaintiff-appellee, Howard Myers, individually and as next friend of Elaine Myers and Jean Myers, minors, sued defendant-appellant, Insurance Company of North America, for benefits under the Workman’s Compensation Law of Texas because of the death of Jimmie L. Myers, wife of appellee and the mother of Elaine Myers and Jean Myers, minors. Mrs. Myers suffered a severe injury to her neck and head on July 1, 1963, while in the course and scope of her employment with Blue Buckle Overall Company in Marshall, Texas. Appellee contended that the injury caused an aggravation and/or extension of an existing condition, a brain tumor, and the brain tumor subsequently caused the death of Mrs. Myers.

For several years prior to the injury, Mrs. Myers had worked steady for the Blue Buckle Overall Company except for two brief durations. At the time she received the injury, she appeared to be in good health. From the date of the injury to the date of her death, her health steadily deteriorated on a downhill course. She had to quit her job. She was placed in a hospital and put in traction. Shortly after she was released from the hospital she was sent to Longview to see a doctor. Thereafter, she was sent to Shreveport and to Galveston.

The case was tried to a jury, and only two special issues were submitted. The issues and the jury’s answers thereto read as follows:

“SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence that the injury to Mrs. Meyers on July 1st, 1963, was a producing cause of her death on May 21st, 1964?
ANSWER: Yes
SPECIAL ISSUE NO. 2:
Do you find from a preponderance of the evidence that the death of Jimmie Lee Myers was not solely caused by the malignant brain cancer, if any, independent and disassociated from the injury sustained by her on or about the 1st day of July, 1963 ?
ANSWER: It was not solely caused by the malignant brain cancer.”

Appellee took the position throughout the trial that Mrs. Myers suffered from a preexisting tumor which was in an inactive or dormant state, which allowed her to work regularly. According to the evidence, she had always carried on her household duties for many years prior to the date of the injury and up until the time thereof. The injury to her neck and head triggered or incited this tumor by growth and constituted one of the causes of her death.

The evidence shows these facts to have existed and they are uncontradicted. Ap-pellee takes the position that this tumor was aggravated into growth as a cancer and was one of the producing causes of the death of Mrs. Myers. Judgment was entered in favor of appellee. Appellant has perfected its appeal and brings forward 17 points of error.

By its points 1 through 10, appellant says the trial court erred in entering judgment against it because there was no evidence, insufficient evidence, and the answer of the jury is contrary to the great weight and preponderance of the evidence; and, the court erred in overruling its motion for an instructed verdict. Mrs. Myers received the injury on July 1, 1963. Dr. Littlejohn was the first doctor to see her after the injury. He testified that she had received a severe cervical strain, or whiplash injury. He testified that the injury caused muscle spasms and severe pain. He put her in the hospital and put her in traction. He gave her muscle relaxants, analgesics (medicine for pain), and physical therapy. The history of this injury was given to all the other doctors. Dr. Dieste treated her from the month of January, 1964, until she passed away on May 21, 1964. He testified that the injury in all probability could have aggravated the inactive brain tumor and contributed to cause her death. The evidence is sufficient to support the jury finding. Traders & General Ins. Co. v. Turner, (CCA 1941) 149 S.W.2d 593, Er. Dis. Judg. Cor.; Hood v. Texas Indemnity Ins. Co. (1948) 146 Tex. 522, 209 S.W.2d 345; American General Ins. Co. v. Barrett (CCA 1957) 300 S.W.2d 358, W.R., N.R.E.; Texas Employers’ Insurance Ass’n. v. Fletcher, (CCA 1962) 356 S.W.2d 359, N.R.E; Lyles v. Texas Employers Insurance Ass’n. (CCA 1963), 365 S.W.2d 819, N.R.E; Travelers Ins. Co. v. Fagan (CCA 1963) 366 S.W.2d 885, N.R.E.; Travelers Insurance Co. v. Booker (CCA 1963) 368 S.W.2d 54, N.R.E.; Kennelley, et al. v. Travelers Insurance Co. (5th Cir. App.1960), 273 F.2d 479. The jury’s answer to this issue is binding on this court. Kimbell v. Noel (CCA 1950), 228 S.W.2d 980, W.R., N.R.E. The points are overruled.

By their points 12, 13 and 14, appellant says the trial court erred in overruling his objections to certain oral argument that was made by the attorney for appellee before the jury. First, we will say that the record is not clear as to the objections that were made by the attorney for appellant, or the trial court’s ruling thereon. There are no bills of exceptions to the argument and no proof was offered on the motion for new trial to show that the jury answered the issues as the result of the argument made. It is the duty of a lawyer in the trial court to argue the facts in a case, or a reasonable deduction therefrom, to try to give the jury some idea of how they should answer the special issues. The argument in this case seemed to be along that line. It was not near as rough as the argument in the case of Whitener v. Traders and General Insurance Company (1956), 155 Tex. 461, 289 S.W.2d 233, wherein the attorney for Whitener said:

“ ‘One of the doctors got on the stand and said it was evolutional melancoii'u. “What is that doctor?” “Oh, that is the middle age, that is the change of life. Like a woman, the middle age change of life”. Another doctor, “What is his trouble, Dr. Wilcox?” “Old age, it is old age.” I was expecting that maybe Dr. Wolfe would come in here and say in this case of Mr. Whitener’s maybe he ought to have his unnecessary female organs removed, and let us hear it. Talk about inconsistencies.’ ”

There were other objections to the argument, but the Supreme Court of Texas held that all the errors were not calculated to cause or probably did cause the rendition of an improper judgment. It is necessary to make objections to the argument, and whether the argument is calculated to prejudice the rights of the adverse party is a question of law. The trial court’s ruling in this respect are subject to review. The trial court’s determination will not be disturbed unless it is clearly shown that he abused his discretion. 56 Tex.Jur.2d 672, Sec. 316. As to the effect of improper argument, see 56 Tex.Jur.2d 674, Secs. 318 and 319. See, also, Condra Funeral Home v. Rollin (1958) 158 Tex. 478, 314 S.W.2d 277. The points are overruled.

We have carefully reviewed appellant’s points 11, 15, 16 and 17, and find them to be without any merit and they are overruled. We will say this, however, that the points relate to the injury of Mrs. Myers. Apparently all parties agree that she was injured while in the course of her employment, because the trial court did not submit an issue thereon.

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


author: FANNING, Justice.

text:
    Jack WHITE, Appellant, v. A. T. EDZARDS et al., Appellees.
    No. 7690.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 1, 1966.
    Rehearing Denied March 1, 1966.
    Leighton Cornett, Paris, for appellant.
    T. D. Wells, Jim N. Thompson, Paris, for appellees.
   FANNING, Justice.

Appellant sought to enjoin the Sheriff of Lamar County, Texas, and appellee Ed-zards, a judgment holder against appellant, from selling real estate under execution, contending, among other things, that the property constituted his homestead. The trial court denied appellant’s application and appellant has appealed. (However, before filing his appeal bond appellant secured a temporary injunction preventing the sale pending appeal and final disposition of the cause by the appellate courts). The trial court made findings of fact and conclusions of law.

On Nov. 8, 1952, appellant Jack N. White entered into a sales agreement with the Veterans Land Board of Texas whereby the Board as Seller agreed to sell to White and White as Buyer agreed to purchase a 109.9 acre tract of land in Lamar County, Texas. Shortly thereafter, White and wife Julia Rose White, with their minor son, moved on and occupied the premises in question as their homestead, both husband and wife claiming and using same as their homestead. There was only one child born to said marriage, a son, Kenneth Edmond White, who became 18 years of age on October 11, 1964. Jack N. White and wife were divorced by decree of the District Court of Harrison County, Texas, on February 6, 1960, in a suit which had been filed by appellant; by the terms of this divorce decree the major portion of the custody of the minor child was awarded to the jnother, with the minor child having occasional visits of a few days with the father, with the father being required to make certain support payments for the minor until the minor reached 18 years of age. The father contributed some support to the minor, but less than that provided for by the decree. A property settlement agreement between the husband and wife with respect to their community property was approved by the decree, whereby appellant White received the equity in the 109.9 acre farm. Prior to Feb. 8, 1964, appellant Jack N. White married Ella Maxine White and lived with her and her children at an address in Paris, Texas, other than on the 109.9 acre farm premises in question but Jack N. White, who had not acquired any other homestead or any other real property than the 109.9 acre farm, still claimed said 109.9 acre farm as his homestead at that time, and as we view the record, at all times since acquisition up to all times shown in this record appellant has claimed said farm and premises as his homestead. On February 4, 1964, Ella Maxine White secured a divorce from Jack N. White, and he has been a single man since that date. On Dec. 29, 1964, A. T. Edzards secured judgment against appellant Jack N. White on an open account for cattle feed furnished White by Edzards in the amount of $2,179.98. This was for feed for cattle of White in connection with White’s operation of the 109.9 acre farm in question. On Feb. 24, 1965, appellee Edzards placed an execution on this judgment in the hands of the Sheriff of Lamar County, Texas, and said sheriff levied on the 109.9 acre farm in question and advertised it for sale. Then followed appellant White’s suit for injunction, the trial and then the present appeal. Appellant has made all payments due the Veterans Land Board and is still the owner of the interest in the land conveyed to him by the contract with the Veterans Land Board.

The trial court, after making findings of fact, concluded as a matter of law to the effect that appellant was a single man, not the head of a family, and was not entitled to claim a homestead interest in the land in question, and that White’s interest in said land was subject to execution, and that White was not entitled to an injunction.

In uncontradicted testimony, appellant testified to the effect: that during the first marriage, he worked outside Lamar County, Texas; that he kept a room in Marshall, Texas, during the week, but on weekends, stayed at the said farm in Lamar County, Texas, and had livestock running on the place and some other equipment; that in 1961, he came back to Paris and assumed full operation of the farm and livestock; that he maintained that status until about fifteen months prior to June 4, 1965, the date of the hearing; that during the time of his second marriage, he still kept quite a bit of livestock and equipment on the farm; that at the time of the hearing, June 4, 1965, he was traveling for a feed company out of Hereford, Texas, but was maintaining his residence at the farm in Lamar County, Texas; that on the job he was then doing, he only had a room in Hereford, which he visited once a month; that at the time of the hearing he was still maintaining a residence at the farm involved in this lawsuit, where he has a few clothes, some household goods, etc.; that at no time has he had intentions of abandoning this property as his homestead; that such homestead claim has been continuous up until the time of the hearing, and he left his father in charge of the place while he was traveling for the feed company; that the judgment against him secured by appellee Ed-zards was a result of a feed account bought for cattle located on this place; that his son spent some time with him during every summer; that he contributed to the support of his son (to some extent) until he became eighteen years of age, but that he does not consider his parental responsibility ended just because his son became eighteen years of age on October 11, 1964; that the last time that he actually stayed on the farm property was the night before the hearing, that is, the night of June 3, 1965; and that he had stayed on the place the weekend before that and the weekend before that, and he would be spending time on the farm the following weekend; that his father still lived on the property, looking after his interest in the property; that he had lived on the property with his child; that appellant never bought any interest in any other real estate since 1952; that when he rented a room in Marshall, Texas, he spent every weekend on the farm helping to take care of the cattle; that at the time that he lived at 1917 Lamar Avenue, Paris, Texas, with his second wife in a rented apartment, he was actively engaged in operating the farm as his sole income; that there was a house on the farm where he took all his meals and spent considerable period of time; that he expects to help support his son past his eighteenth birthday, having already made plans to send him to college for the next year.

The trial court did not specifically find in his findings of fact that appellant had abandoned the 109.9 acre farm as his homestead, nor did he conclude in his conclusions of law that appellant had abandoned the 109.9 acre farm as his homestead. Nor did the trial court in his findings of fact find one or more elements of abandonment of the homestead by appellant. Consequently under Rule 299, Texas Rules of Civil Procedure, it can not be presumed in support of the judgment that appellant had abandoned his homestead rights. Furthermore if a finding or conclusion of abandonment had been made it would have had no support in the evidence.

Apparently the theory of the trial court was that upon the divorces the appellant, becoming a single man, was not the head of a family and therefore had no homestead rights in the property. Had the appellant not had the minor son the trial court’s judgment would have been correct under such authorities as the following: Bahn v. Starcke, 89 Tex. 203, 34 S.W. 103 (1896); Tanton v. State National Bank of El Paso, 125 Tex. 16, 79 S.W.2d 833, 93 A.L.R. 1093 (1935); Clack v. Williams, Tex.Civ.App., 189 S.W.2d 503, er. dism., w. o. m. (1945); Steitz v. Steitz, Tex.Civ.App., 262 S.W.2d 262, wr. dism. (1953); Reisberg v. Hubbard, Tex.Civ.App., 326 S.W.2d 605, no writ (1959).

The case at bar is clearly distinguishable from the last above referred to authorities for the reason that a homestead was established by the husband and wife and there was a minor child at the time of the first divorce decree and the homestead has not since been abandond. Under such circumstances and under the record in this case it must be held that appellant Jack N. White, the father of the minor son, had a homestead right in the 109.9 acre tract in question, which had not been abandoned, and that the same was exempt from execution on the Edzards judgment in question, and that appellant was entitled to an injunction to prevent sale of said homestead property under said execution. In this connection see the following authorities: Tex.Const. Art. 16, Sec. 50, Vernon’s Ann. St.; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S.W. 86 (1909); Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929); Posey v. Commercial Nat. Bank et al., Tex.Comm.App., 55 S.W.2d 515 (1932); Shook v. Shook, Tex.Civ.App., 145 S.W. 682, writ refused (1912); Jeter v. Jeter, Tex.Civ.App., 281 S.W. 598, no writ (1926); Reconstruction Finance Corporation v. Burgess, Tex.Civ.App., 155 S. W.2d 977, writ refused (1941); Sakowitz Bros. et al. v. McCord, Tex.Civ.App., 162 S.W.2d 437, no writ (1942). In Jeter v. Jeter, supra (281 S.W. 598) it was stated in part as follows :

“The attempt to subject to the payment of court costs and the attorney’s fee the interest of plaintiff in error in his homestead was altogether unauthorized. The homestead character of the land was not destroyed by the decree of divorce. Mr. Jeter, notwithstanding the custody of the children had been awarded to their mother, remained the head of a family; his parental interest in the welfare of his children subsisted; and both a legal and moral obligation rested upon him for their proper care and support. (Emphasis added).
As his homestead interest in the land was not subject to the payment of these debts, the, court erred in entering a decree to that effect. (Const. art. 16, § SO; Speer [& Goodnight] v. Sykes, 119 S.W. 86, 102 Tex. 451, 132 Am.St. Rep. 896; Shook v. Shook (Tex.Civ. App.) 145 S.W. 682, 684, 685.”

The judgment of the trial court is reversed and judgment is rendered ordering the issuance of the injunction prayed for by appellant.

Reversed and rendered.


author: DIXON, Chief Justice.

text:
    CITY OF DALLAS et al., Appellants, v. Harry YARBROUGH, Appellee.
    No. 16654.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1966.

      N. Alex Bickley, City Atty., Ted P. Mac-Master and Jack E. Walter, Asst. City Attys., Dallas, for appellants.
    Burt Barr and O. H. Harris, Dallas, for appellee.
   DIXON, Chief Justice.

Pursuant to Article 636 of the Penal Code of the State of Texas police officers of the City of Dallas seized five pool tables and a number of billiard balls, cue sticks and other paraphernalia used for gaming purposes at premises occupied by Walnut Hill Billiard Club, Inc., a pool hall much frequented by persons of ’teen age.

Thereafter Harry Yarbrough, appellee herein, filed suit against Walnut Hill Billiard Club, Inc. for debt represented by two notes in the total principal amount of $7,214, and for foreclosure of two chattel mortgage liens against twenty billiard tables and other property, including the property seized by the police. The City of Dallas was made a party because the seized property is in the possession of the City. The City filed a cross-action alleging that the property taken into the possession of the police is subject to seizure and destruction under Articles 636 and 637 of the Penal Code. The City and the Chief of Police, who entered an appearance in the case, prayed for an order for its destruction.

In a trial before the court without a jury the evidence was undisputed that the five billiard tables and other seized property were equipment of a gambling house and were being used for gaming purposes by Walnut Hill Billiard Club, Inc. and its customers. Nevertheless, the court not only rendered judgment in favor of appellee for debt in the principal amount of $7,214, but also rendered judgment foreclosing appel-lee’s chattel mortgages against the property seized by the police. The court held that as a matter of law Articles 636 and 637 et seq. of the Penal Code will not allow destruction of the seized property as against a valid chattel mortgage. Therefore, judgment was rendered that the City take nothing by its cross-action and the City was ordered to turn the seized property over to appellee, the mortgagee.

Appellant City in its one point on appeal contends that the court erred in that a proceeding under Articles 636 et seq. of the Penal Code is an action in rem against the seized property, and is binding on all persons, including appellee in this case, no exception being made for a mortgagee holding a valid mortgage. We agree with appellant.

Articles 636, 637 and 641 of the Penal Code make it the duty of every peace officer to seize all equipment and paraphernalia of gambling houses being used for gaming purposes; to submit a report to the proper magistrate; and to ask for a destruction order. The proceeding is one in rem against the property. State ex rel. Hightower v. Larimore, 156 Tex. 267, 295 S.W.2d 654; Williams v. State, Tex.Civ.App., 283 S.W.2d 444.

Article 638 of the Penal Code provides that any person having an interest in or entitled to possession of the seized property shall have the right at any time before the destruction to try the issue whether the property was used as equipment or paraphernalia of any gambling house. But Article 638 grants the right only as to the one issue. There is no provision granting to an interested party such as an innocent mortgagee the right to defend against the forfeiture by showing that he did not participate in the use of the property for gaming purposes and did not know that it was being so used.

By specifying in Article 638 of the Penal Code only one defensive issue made available to parties claiming an interest in the seized property, the Legislature must have intended to exclude other defensive issues. The maxim expressio unius est ex-clusio alterius (the specification of one thing is exclusive of another) states a rule which is of long standing in this State, which has been pronounced a sound one, and which is frequently applied. Bryan v. Sundberg (1849), 5 Tex. 418, 422; Harris County v. Crooker et al. 112 Tex. 450, 248 S.W. 652, 655; Foshee Refining Co., Inc. v. State et al. Tex.Civ.App., 73 S.W.2d 1098, 1100; State et al. v. Mapel, Tex.Civ.App., 61 S.W.2d 149, 152; State v. Rich ards, 157 Tex. 166, 301 S.W.2d 597. We think the rule is applicable here.

In the Richards case, above cited, our Supreme Court construed Article 725b of the Penal Code which provides for the forfeiture of any vehicle used to transport narcotics. The statute provides protection for a mortgagee, but only limited protection for an owner. The court held that since the Legislature spelled out certain exceptions to the forfeiture provision no protection was afforded to an innocent owner who failed to bring himself within one of the exceptions.

A strict forfeiture statute has also been upheld in the Federal Courts. General Finance Corp. of Fla. South v. United States, 5 Cir., 333 F.2d 681; United States v. One 1952 Model Ford Sedan Automobile, 5 Cir., 213 F.2d 252; United States v. Gramling, 5 Cir., 180 F.2d 498.

We call attention to Section 2 of Article 637 of the Penal Code which provides that if it is determined that the seized property is not gambling paraphernalia per se and is capable of being used for some legal purpose, the trial court, instead of ordering the property destroyed, may at his discretion declare the property confiscated and cause it to be delivered to the State, or any political subdivision thereof, or to any state institution to be kept by it for its own use and benefit. The seized properties in this instance are not gambling paraphernalia per se. Therefore, this is a case in which the trial court is clothed with the discretionary authority provided in Section 2 of Article 637 of the Penal Code.

Appellant’s point on appeal is sustained. Appellee’s money judgment against Walnut Hill Billiard Club, Inc. is affirmed. The judgment foreclosing appellee’s chattel mortgage and ordering the City to turn over the seized property to appellee is reversed, as is that part of the judgment that the City take nothing by its suit; and judgment is here rendered that appellee be denied foreclosure of his chattel mortgage lien against the seized property and that the City and its Chief of Police have judgment declaring the property in controversy to be confiscated; and the trial court is directed to enter an order requiring the City and its Chief of Police either to destroy the seized property, or to make such other disposition of it as is provided under Section 2 of Article 637 of the Penal Code.

The judgment of the trial court is affirmed in part and reversed and rendered in part as above indicated. The cause will be remanded to the trial court for the limited purpose only of implementing the judgment here rendered by exercising the trial court’s discretionary authority as to the type of order to be entered in compliance with Section 2 of Article 637 of the Penal Code.

Affirmed in part, reversed and rendered in part, and remanded for limited purpose as outlined above.


author: WALTER, Justice.

text:
    HOME INDEMNITY COMPANY, Appellant, v. Roger H. MARTIN et ux., Appellees.
    No. 4043.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 18, 1966.
    Rehearing Denied March 11, 1966.
    Johnson, Guthrie, White & Stanfield, Dallas, Crenshaw, Dupree & Milam, Brown & Shuman, Moore & Armstrong, Lubbock, for appellant.
    A. W. Salyars, Lubbock, for appellees.
   WALTER, Justice.

Roger H. Martin and wife filed suit against The Home Indemnity Company on a fire policy covering their home. Home asked for a recovery over against a third party defendant, L. K. Lankford, if Martin recovered against it. The proceedings of a pre-trial are reported in the first fourteen pages of the statement of facts. It contains some stipulations that the court will decide certain issues and that certain issues will be submitted to a jury. We do not find any reference to the pre-trial in the briefs. Commercial Insurance Company paid the Martins $2,782.50 under its policy and intervened and adopted Home’s allegations in its third party action. Commercial has not appealed. At the conclusion of the evidence, the court withdrew the case from the jury and rendered judgment that the Martins recover $8,571.27 against Home and that Home and Commercial recover nothing.

Home has appealed. Home says that it is not liable for the loss because, after the loss occurred, the Martins impaired its sub-rogation rights against the third party defendant. The insurance company’s defense is predicated on the following provision of the policy:

“Except as respects Coverages E and F under Section 11, the Company may require from the Insured an assignment of all rights of recovery against any party for loss to the extent that payment therefor is made by the Company and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after a loss to prejudice such rights; but as respects coverage under Section 1 he may, prior to a loss and in writing only, waive his right of recovery from any party.”

Home contends that Martins’ course of conduct with Lankford after the fire prejudiced its rights of subrogation in that Martin either made a settlement of his claim against Lankford or admitted that Lankford was not responsible for the fire.

Roger H. Martin testified substantially as follows: We had a fire at our home on May 7th, 1964. I notified Home’s agent of the fire that night. The insurance company’s adjuster Ed Lamb came to our home the next morning. Home has not paid anything on their policy. Mr. Lamb furnished us with a proof of loss form. I got all the information and gave it to him and he prepared the proof of loss which my wife and I signed on May 20, 1964. On May 18, 1964, my wife and I and L. K. Lank-ford executed an instrument in which Lankford agreed to repair the fire damage to our home and we assigned $5,893.52 of our policy to him. Home refused to approve the assignment. I rescinded this agreement after Home refused to recognize it. When Lamb came out the morning after the fire, he introduced himself as an adjuster for Home. Lankford didn’t make a move until Lamb gave him instructions. After his discussion with Lamb, Lankford went to work cleaning out and getting ready to make the repairs.

Ed Lamb testified substantially as follows: I investigated the fire loss to Mr. Martin’s house the morning after the fire. I was introduced to Mr. and Mrs. Martin by their insurance agent. I told them I was an adjuster. I told them the claim would be forwarded to Dallas for payment. When I went out to Martin’s place I did not tell him and Mr. Lankford that I did not have authority to adjust the loss. I told them that I was representing Home Indemnity Company. We take the proof of loss and the loan receipt with the closing report and it goes in to the office and we are through with it. I had arranged this with Mr. Martin and told him the draft would be issued by Home. Several days thereafter I received his estimate and it was satisfactory with me. I agreed with the Martins on the damage at the time I sent the papers to Dallas. I told them that the only authority I lacked was to write the check. I knew that Lankford had made the estimates and I okayed them as to the amount of damage. We are taught that our job is to assist the insured in ascertaining his loss and damage and in preparing forms for him to establish his loss and damage and present his claim for payment. The agreement between me and the Martins was that the amount of their claim against Home was valid and legitimate. I agreed with the Martins on the amount of their claim and sent it in for payment.

Gereal Broiles testified substantially as follows: Bill Holliman is a specialist in the field of working on cabinet tops and doing tile work. I worked for Bill at Martin’s house. Bill was on the job with me and we took every precaution that we ever take while doing the job. Part of the tools we worked with belonged to me and part of them belonged to Holliman.

A. C. Black testified substantially as follows: I am City Fire Marshall here in Lubbock. The fire at Martin’s occurred at 6:12 p. m. on May 7, 1964. From my investigation I concluded that a spark was caused by the metal section of the brush striking a switch. That started the fire.

L. K. Lankford testified substantially as follows: I am the third party defendant who is being sued by Home. I was the general contractor making certain repairs on Martin’s home before the fire. Joe Knight was an independent contractor under me. His employees were his and not mine. Joe Knight was not carried on my books as an employee. None of his employees were carried on my books as my employees. I had no right to control the details of their work. I saw Ed Lamb the morning after the fire. Mr. and Mr. Martin, Marvin Berry, Joe Knight and an agent from McFarland-Maisen Insurance Company were also present at the time I talked to Lamb. Lamb said he was an adjuster and was out there to find out the extent of the damage and try to make a settlement with the Martins on their loss. He was asked the following question and he gave the following answer:

“Q- All right. Mr. Lankford, did you go to work there because of what Mr. Lamb told you?
A- Strictly because of what Ed Lamb told us. He was — as far as I was concerned he was Home Indemnity Company.”

About eleven days later we tried to get something in writing and Home refused to sign. I stopped work for a short time. I had no dealings with Bill Holliman at all at any time. Bill Holliman worked on the Martin place as an independent contractor. Neither Holliman nor his employees or Joe Knight were my employees. They were not carried on my books as such. I had nothing to do with their compensation, their social security or withholding taxes.

Appellant contends that the court erred in refusing to direct a verdict in its favor because the Martins made a settlement with Lankford. This point can not be sustained. In support of these points, Home cites the case of Maryland Motor Car Insurance Company v. Haggard, Tex. Civ.App., 168 S.W. 1011, (no writ history). Haggard had a fire and collision policy with Maryland when his car was struck by a Fort Worth fire truck. Haggard executed a full and complete release to the city for $100.00 and thereafter sued Maryland on his policy for $400.00. Maryland pleaded that Haggard had prejudiced its subrogation rights by executing the release and accepting the $100.00. In holding that Haggard had destroyed the company’s rights of subrogation by executing the release and that this was a bar to his recovery on the policy, the court said:

“It is quite a well-settled rule that if an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the insurance company’s right of subrogation against the wrongdoer is thereby destroyed.”

We fail to see how the law announced by this decision has any bearing on the facts of this case. The record conclusively shows that the Martins did not execute a release or make a settlement with Lank-ford.

The court properly overruled Home’s exceptions to Lankford’s trial amendment.

“No abuse of discretion of the trial court or injury to appellant resulting from overruling the special exception has been shown. ‘Moreover, a large measure of discretion is lodged in the trial court in passing on the exceptions to the pleadings, as well as to the time that he hears the same, and, in the absence of a showing of abuse of discretion of injury resulting from the ruling of the trial court, the ruling will not be disturbed.’ Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, 711, (Writ Ref.).” Yeatman v. Nelms, Tex.Civ.App., 345 S.W. 2d 351, (no writ history)

Home’s points ten and eleven asserting that the court erred in overruling its special exceptions are said to be germane to assignment eight in its motion for new trial. It reads as follows :

“The Court erred in overruling The Home Indemnity Company’s special exceptions 1 and 11 contained in its answer to the trial amendment of L. K. Lankford the reasons stated in such special exceptions.”

In Wagner v. Foster, 341 S.W.2d 887, the Supreme Court in a per curiam opinion said :

“Assignments of error in a motion for new trial which do no more than adopt from or refer in general terms to other motions, etc. do not ‘specify’, or ‘distinctly set forth’, or ‘clearly identify’ a ground of error.”

In its third party action against Lank-ford, Home alleged that the loss resulted from his negligence in that he failed to keep a proper lookout for fire, that he permitted a spark to ignite cement that he was applying to the formica top on a cabinet, that he permitted the fire to spread and had made no provision to prevent the spread of the fire.

The record conclusively shows that Holliman was not an employee of Lankford. Anchor Casualty Company v. Hartsfield, (Supreme Court), 390 S.W.2d 469. The record also conclusively shows that there was no evidence of negligence or proximate cause.

Home offered in evidence an assignment from Martin to Lankford. Lank-ford had agreed to repair the fire damage for $5,893.52. Martin assigned this amount to Lankford. Home refused to honor the instrument because it destroyed their rights of subrogation. After Home refused to accept the assignment, it had no further force or authority. Home has had its day in court on its rights of subrogation against Lankford and has failed to introduce any evidence of probative force that he was responsible for the fire. Substantially the same evidence was received from other witnesses. Refusing to admit this cumulative evidence was not reversible error. Rule 434, Texas Rules of Civil Procedure.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    Andres CRUZ, Appellant, v. ANSUL CHEMICAL COMPANY et al., Appellee.
    No. 146.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 10, 1966.
    Rehearing Denied March 10, 1966.

      Raymond E. Ehrlich, Pharr, for appellant.
    Rankin, Kern & Martinez, by Stonewall Van Wie, III, Ewers, Toothaker, Ewers, Byfield & Abbott, by O. C. Hamilton, Jr., McAllen, for appellee.
   GREEN, Chief Justice.

Special exceptions filed separately by each of the two defendants to plaintiff’s original petition were sustained by the trial court, and plaintiff was granted leave to amend. Plaintiff refused to amend, and the suit was ordered dismissed. From such order, plaintiff has appealed to this court.

Plaintiff alleged in his petition that on or about July 20, 1963, he purchased from defendant Murray, doing business as Murray Boat Works, in McAllen, Texas, hereinafter referred to as Murray, a fire extinguisher manufactured by defendant An-sul Chemical Company, a Wisconsin Corporation, hereinafter called Ansul, paying therefor the customary price of $15.00. Plaintiff told Murray that the fire extinguisher was to be used aboard a boat, and that he wanted one that would be adequate to extinguish any fires that might occur on the boat. The petition proceeds to allege as follows:

“* * * through the nature of the product purchased by the Plaintiff from the Defendants, there existed and was an implied warranty that the fire extinguisher would extinguish fires and that it was fully charged with the necessary chemicals to extinguish fires. Plaintiff could not and did not test the fire extinguisher prior to August 18, 1963, and the safety pin was intact.
IV.
That on or about August 18, 1963, at about 10:00 o’clock in the morning, Plaintiff was aboard his boat in the Laguna Madre and had aboard his boat as guests seven passengers. In the course of the operation of the boat a small fire broke out aboard the said boat which fire was of such a small size that any properly operating fire extinguisher could quickly extinguish the flame. Plaintiff immediately seized the fire extinguisher as aforesaid and attempted to extinguish the flame. In spite of the efforts of Plaintiff to use the fire extinguisher, the said extinguisher failed to perform its function and no extinguishing material emitted from the fire extinguisher. Several of the passengers aboard Plaintiff’s boat tried to use the fire extinguisher but they, too, were unable to ■cause the extinguisher to perform its function as warranted by the implied warranty above stated. The flames spread and before the boat could be propelled to the shore, the entire boat burned, sank and became totally destroyed with no hope of salvage.”

The petition thereafter alleges plaintiff’s ■damages, incurred “as a result of the breach of warranty as aforesaid.”

Appellant bases his appeal from the order of the court dismissing his suit on one point of error, as follows:

“POINT OF ERROR-NO. 1
The Court erred in sustaining Special Exceptions No. 1, No. 2 and No. 3 of the First Amended Original Answers filed by each Defendant and holding that the fire extinguisher had no causal relationship to Plaintiff’s damages, and that a seller who does not manufacture and a manufacturer who does not sell directly to the consumer can not be required to respond in damages for the failure of a fire extinguisher to function properly in the absence of an express contract.”

Appeal as to Defendant Ansul

Defendant Ansul, manufacturer of the fire extinguisher, by his special exceptions raised principally the proposition that the petition contained no allegations establishing any privity of contract or relationship between it and plaintiff, so that as a matter of law said defendant could not be held liable for plaintiff’s damages as alleged; and that public policy would require an express contract assuming such liability, since the price charged for the thing sold, being $15.00, cannot justify the assumption that the manufacturer becomes the insurer of all property that such fire extinguisher may be kept in to extinguish fires.

In considering the sufficiency of plaintiff’s allegations in his petition to show liability of Ansul, we need not speculate on whether the pleadings could have withstood attack if they had contained proper allegations for damages based upon negligence, breach of express contractual warranty, misrepresentation, or defects in an allegedly inherently dangerous instrumentality. Authorities declaring a manufacturer’s liability in such instances, or in contaminated food cases, for either human consumption (Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479) or animal consumption, where a manufacturer’s tag guaranteed the analysis of the contents, (Burrus Feed Mills, Inc. v. Reeder, Tex.Civ.App., 391 S.W.2d 121, n. w. h.) do not apply to the fact situation here alleged.

Plaintiff’s suit is based solely on allegations of a breach of an alleged implied warranty not involving negligence. No privity of contract existed between Plaintiff and Ansul. We feel that the present law in Texas governing the suit as against defendant Ansul is set forth in Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752, writ ref. n. r. e., wherein Judge Norvell, speaking for the court, stated:

“The question posed by this appeal is whether or not the rule of ‘implied warranty’ set forth in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, has application to one formulating chemicals for use as a cattle spray. In the case cited it was held that a non-negligent processor could be held liable in damages to one injured from eating contaminated foodstuffs prepared by him, although no privity of contract between the processor and the consumer was shown. As pointed out in the opinion, the ‘implied warranty’ which is made the basis of liability is hardly the creature of contract but has its basis in a public policy which demands that such an obligation be imposed for the protection of the public health. This type of warranty actually sounds in tort (action upon the case) and was known to the law prior to the development of the action of assumpsit. Wil-liston on Sales, § 195. It should not be confused with the contractual warranty, either expressed or implied, in which privity of contract is an essential element of recovery. Davis v. Ferguson, Tex.Civ.App., 255 S.W. 655, contains the generally accepted statement of the rule applying to implied contractual warranties. Turner & Clayton, Inc. v. Shackelford, Tex. Com.App., 288 S.W. 815; Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689; Donelson v. Fairmont Foods Co., Tex.Civ.App., 252 S.W.2d 796; Blessington v. McCrory Stores Corp., 279 App.Div. 806, 109 N.Y.S.2d 719, affirmed 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698.”
******
“No one disputes the proposition that a processor of chemical for cattle spraying purposes should be held liable for the proximate results of his negligence, but appellants by their pleadings in effect place Klauss in the position of a non-negligent manufacturer and the case must be viewed from that standpoint. In a sense then an attempt is being made to affix liability without fault. Such rules of liability have been described as onerous and require a strong public policy to support them. Race v. Krum, 222 N.Y. 410, 118 N.E. 853, 854, L.R.A.1918F, 1172. The only authority cited by appellants in support of their position, other than the Decker case, is International Milling Co. v. Jernigan, Tex.Civ.App., 191 S.W.2d 526, a plea of privilege case in which the rule was apparently extended to include animal foodstuffs. Cf. F. A. Piper Co. v. Oppenheimer, Tex.Civ.App., 158 S.W. 777; Williston on Sales, § 242. The acceptance of appellants’ theory in the present case would require a further extension which is not sanctioned by any Texas case called to our attention and one we feel unauthorized to make. A careful reading of the Decker case and the authorities therein cited disclose an emphasis upon ‘food for human consumption.’”
******
“We feel unauthorized on the basis of the Decker case to recognize a further exception to the general rule and impose liability in this case absent privity of contract. Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689.
“In our opinion, the trial judge followed the law as declared by the decided cases and his action in granting the motion for judgment non ob-stante veredicto is accordingly affirmed.”

See also Gehl Bros. Manufacturing Co. v. Prices Producers, Inc., Tex.Civ.App., 319 S.W.2d 955; Sparks v. Chrysler Corporation, Airtemp Division, Tex.Civ.App., 353 S.W.2d 477; Western Tank & Steel Corporation v. Gandy, Tex.Civ.App., 385 S.W.2d 406; Luse v. Valley Steel Products Company, 5th Cir., 293 F.2d 625.

As stated in American Law of Products Liability, Hursh, Vol. 1, Sec. 6:110, p. 733-734:

“Although a fairly recent Texas decision (and one not rendered by the highest Texas court) recognizes that under the modern doctrine a person who has no direct contractual relation with a manufacturer may nevertheless recover from the manufacturer for damages to property caused by the negligence of the manufacturer, in the same manner in which a remote vendee or other third person can recover for personal injuries, (Stull’s Chemicals v. Davis, Tex.Civ.App., 263 S.W.2d 806) there is no definitive Texas decision which rejects the privity requirement outright, and consequently it is necessary to conclude that the requirement continues in effect in that jurisdiction. However, it is established that the Texas courts view the requirement as inapplicable in cases involving injury caused by inherently or imminently dangerous products or by unwholesome food products.
The Texas decisions also hold privity to be essential to recovery in breach of warranty actions, except where the injury in question was caused by a food product.”

It is our opinion that the trial court followed the law as declared by the decided Texas cases in sustaining Ansul’s special exceptions, directed at the absence of privity between plaintiff and Ansul, and in dismissing the cause as to such defendant when plaintiff declined to amend. In view of such conclusion, it is not necessary that we pass on the court’s ruling as to Ansul’s other special exceptions.

Appeal as to Defendant Murray

Defendant Murray’s exceptions raised the propositions among others that there were no facts alleged in plaintiff’s petition that the fire extinguisher was responsible for plaintiff’s alleged damages, or which would cause Murray to be liable for the failure of the fire extinguisher to operate on the occasion in question.

The only implied warranty plead by plaintiff was “that the fire extinguisher would extinguish fires and that it was fully charged with the necessary chemicals to extinguish fires.” The petition proceeds then to allege that a small fire broke out on the boat that any properly operating fire extinguisher could quickly extinguish, but that when plaintiff and his guests attempted to put out the fire with the extinguisher, they were unable to do so, and the fire eventually caused the boat to sink. There was no allegation that the extinguisher was not charged with the necessary chemicals, or that it was in any manner defective. There was nothing said as to the manner in which plaintiff or his guests used the extinguisher in their efforts to put out the fire, i. e., whether they followed any directions, or attempted to pump liquid chemicals on the fire, or whether they tried to beat out the fire, using the extinguisher as a club, or what they did with the instrument.

In the absence of any special exceptions, the petition may have been sufficient to allege a cause of action against defendant Murray, although we are not called upon to so decide. However, the trial court has a large discretion in ruling on special exceptions, and his action in sustaining them, where he grants leave to amend, will not be disturbed on appeal in the absence of a showing of an abuse of discretion resulting in injury to appellant. Jones v. Alvin State Bank, Tex.Civ.App., 332 S.W.2d 124; Weiler v. Weiler, Tex. Civ.App., 336 S.W.2d 454; Yeatman v. Nelms, Tex.Civ.App., 345 S.W.2d 351; Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, writ ref.; City of Abilene v. Jones, Tex.Civ.App., 355 S.W.2d 597; McKinney v. Flato Brothers, Inc., Tex.Civ.App., 397 S.W.2d 525.

The purpose of a pleading is to inform the court and the adverse party of what the pleader’s contentions will be on the trial of the case, and the office of special exceptions to pleadings is to furnish the adverse party a medium by which to force clarification of and specifications in pleadings when not clear or sufficiently specific. Rules 45 & 91, Texas Rules of Civil Procedure; Texas Lime Company v. Hindman, Tex.Civ.App., 300 S.W.2d 112, aff’d, 157 Tex. 592, 305 S.W.2d 947.

It appears to be settled law in Texas that where an article is sold for a particular use and the seller is aware of such intended use, and where the buyer is relying on seller’s superior judgment, there is an implied warranty of its soundness, and that it is suitable for such a use. 50 Tex.Jur.2d, Sales, § 159, pp. 468 et seq.; Craftsman Glass, Inc. v. Cathey, Tex.Civ. App., 351 S.W.2d 950; Adams v. Bailey Transportation Co., Tex.Civ.App., 334 S.W. 2d 591; McMorries v. Clardy, Tex.Civ.App., 232 S.W.2d 167; Brown v. Asgrow Seed Company of Texas, Tex.Civ.App., 379 S.W.2d 412, writ ref. n. r. e. In the event the article proves to be defective, or not suitable to the use for which seller and buyer knew it was intended, where facts exist to ereate such implied warranty, the purchaser is entitled to recover damages for defects present at the time of his purchase, or sustained as a necessary and usual result of a breach of the implied warranty, and such consequential damages as the seller should have contemplated as a result of the breach of the warranty. Craftsman Glass, Inc. v. Cathey, supra.

Plaintiff did not allege such an implied warranty. His allegation of an implied warranty “that the fire extinguisher would extinguish fires” with no modifying language would suggest that the obj ect bought would automatically extinguish fires; not that it would do so if properly used for that purpose. He does not allege that it was used in the manner that such a fire extinguisher should have been used to put out a fire, or that his damages were proximately caused by a defect in the extinguisher which prevented it, when properly used, from putting out the fire on the boat. There was no allegation of any breach by either defendant of an implied warranty of soundness, and no allegation that the object sold was not suitable for the particular use for which it was purchased.

We believe the trial court did not abuse his discretion when he sustained the exceptions heretofore mentioned. We feel that such exceptions, though perhaps somewhat general, were sufficient to call to plaintiff’s attention the defects in his petition. Rule 91, T.R.C.P. Plaintiff was not harmed by the action of the trial court in sustaining the special exceptions; his injury, if any, was caused by his refusal to amend his petition to allege the warranty which the law does imply in such sales, and to make proper allegations of the manner in which the fire extinguisher failed, of the breach of the warranty, and of his damages.

Plaintiff’s point of error is overruled.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    BURRUS MILLS, INC., d/b/a Burrus Feed Mills, Appellant, v. Otto W. HEIN, etc., Appellee.
    No. 14682.
    Court of Civil Appeals of Texas, Houston.
    Feb. 3, 1966.
    Rehearing Denied Feb. 24, 1966.
    See also 378 S.W.2d 85.

      Matthews & Matthews, Tom D. Matthews, Dallas, for appellant.
    Walter M. Hilliard, Caldwell, Charles C. Smith, Jr., Cameron, for appellee.
   WERLEIN, Justice.

This suit was brought by appellant, Bur-ras Mills, Inc., to recover on a verified open account for goods, wares and merchandise sold and delivered to appellee. Appellee filed his sworn denial under Rule 185, Texas Rules of Civil Procedure, denying that the account was just or true in whole or in part. The case was tried without a jury, and the trial court entered a take-nothing judgment against the plaintiff.

At the request of appellant, the court made and filed his findings of fact and conclusions of law. He found that appellant called appellee as an adverse witness and adduced from his testimony that he had ordered the goods and merchandise reflected by appellant’s four invoices introduced in evidence, totalling $4,795.61; that the goods were shipped and delivered to him, and that he agreed to pay the amounts of the invoices; whereupon appellant rested its case. The court further found that ap-pellee moved the court for judgment in his behalf on the ground that appellant had failed to discharge the burden of proof resting upon it, and the court granted such motion. The court concluded that appellant had failed to discharge the burden of proof resting upon it in that appellant did not prove that at the time of trial, its claim was just and true, that it was due and unpaid, and that all just and lawful offsets, payments and credits had been allowed; and that therefore appellant was not entitled to recover judgment as against ap-pellee for the amount of its alleged sworn account.

The law is well settled that the effect of a defendant’s verified denial of the correctness of a plaintiff’s sworn account is to destroy the probative force of the itemized account attached to the petition and put the plaintiff upon proof of its claim. J. E. Earnest & Co. v. Word, Tex.Com.App.1941, 137 Tex. 16, 152 S.W.2d 325; Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235; Bowyer v. Levy’s of Tucson, Tex.Civ.App., 373 S.W.2d 369; H. G. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W.2d 570.

In the instant case, appellee admitted that he had ordered the merchandise as described in the invoices which were introduced in evidence without objection, that such merchandise was delivered to him, and that by ordering the same, he agreed to pay the price of the merchandise as listed in the invoices. He thereby admitted the correctness of the invoices and the prices charged for the goods delivered to him. The invoices show the terms of the sale to be “Net 30 days”. The dates of the invoices show that the goods were shipped and delivered to appellee in March and April, 1962. The statement attached to appellant’s open account shows that there was a partial payment made on March 7, 1962, in the sum of $893.11, on Invoice No. 64958 originally in the sum of $1,798.50, leaving a balance due of $905.39 on such invoice, and that the total balance was $4,795.61.

The filing by appellee of his sworn denial under Rule 185, T.R.C.P., placed upon appellant the burden of proving up its claim as at common law and at least making out a prima facie case which would entitle it to recovery. By introducing the invoices in evidence and obtaining from appellee admissions that he had ordered the goods from appellant; that the invoices were in his possession; that the merchandise had been delivered to him, and that by ordering the same he had agreed to pay the price of the merchandise as listed in the invoices, appellant proved that the account was just, due and unpaid as of the date of the delivery of the goods or thirty days thereafter. Appellant might have gone further and proven by direct evidence that the claim was due and owing at the time of trial. However, there is nothing in the record to show that any change was made in the account or that any payments or offsets were made from the date of delivery or thirty days thereafter to the date of trial.

At the conclusion of its testimony, appellant rested, but did not move for judgment. Whereupon appellee moved the court for judgment in his favor on the ground that appellant had not proven the account was unpaid, contending that it was incumbent upon the appellant to make such proof. The court thereupon stated that it seemed to him that when a written sworn denial is filed it is incumbent upon the plaintiff to prove that the amount sued for has not been paid, but that he would reserve his ruling although he was of the opinion that appellee was entitled to judgment. Appellee thereupon was called to the stand by his counsel for the evident purpose of showing that the account had been paid. Appellant objected on the ground that ap-pellee had not pleaded payment. Whereupon the court stated that the burden was on appellant to prove that the account, which had been denied under oath, was due and unpaid. The court then rendered judgment for appellee. In his judgment, the court cites the cases of H. G. Berning, Inc. v. Waggoner, supra, and J. E. Earnest & Co. v. Word, supra.

The function of appellee’s verified denial was to destroy the probative force of the itemized account and put appellant upon proof of its claim. Such function was accomplished when it placed upon appellant the burden of proving up its claim as at common law.

When the probative force of appellant’s itemized account was destroyed, both appellant and appellee were placed in the same position they would have been in had the suit been originally brought to prove up an unverified account. Appellee’s plea that the account was not just and verified was not a general denial nor a plea of payment, nor did it prevent him from filing a general denial and a plea of payment and proving the payments that were made by him. Rule 95, T.R.C.P., provides:

“When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.”

Payment is an affirmative defense which ordinarily has to be pleaded and proved by the defendant. The purpose of such plea is to give the plaintiff full notice of the character or nature of the payment. A plea that an account is not just or true goes to the matter of the account as pleaded by the plaintiff. Where the probative force of the verified account is destroyed and the burden of proving the claim is placed on the plaintiff, the defendant’s plea that the account is not just or true ceases to be of any further effect. It does not relieve the defendant from pleading and proving payment and the nature of the payments made, as required by Rule 95.

We have neither found nor been cited to any Texas case directly in point. See Amer.Jur.2d, Vol. 1, p. 386, Accounts and Accounting, Sec. 13, where it is stated: “The defendant should plead any affirmative defense which he may have, such as payment, account stated, the bar of the statute of limitations, etc.” Even though the verified account is not denied by a verified plea, anything permitted by law to be pleaded as an offset or counter-claim may be so pleaded. See Chisos Mining Co. v. Chicago Pneumatic Tool Co., Tex.Civ.App, 142 S. W.2d 549, where the court said: “Likewise, there are certain affirmative defenses, such as payment, that may be pleaded in defense to an action on a sworn account.” See also Monroe Grocer Co. v. Barron, 16 La.App. 357, 134 So. 735; Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775, 5 S.E.2d 269. In the latter case the court said:

“The defendant having sufficiently answered, the plaintiff became bound to prove its claim (Moore v. American National Bank, 156 Ga. 724, 727, 120 S.E. 2), and the defendant had available no other defense than such as disproved the plaintiff’s cause of action; special pleas of payment or set-off or recoupment had to be specially pleaded.”

The trial court was of the opinion that the burden was upon appellant to prove by direct evidence that the account was unpaid at the time of the trial. Although the proper application of the law to the facts in this case is not altogether free from doubt, we are of the opinion that when appellant proved that the account was due and owing at the time of delivery of the goods or thirty days thereafter and there was nothing to indicate that it ceased to be due and owing down to the time of trial, the burden shifted to appellee to plead and prove his affirmative defenses. If the account was not due and owing at the time of the trial it was because payments had been made thereon. The burden was on the appellee to plead and prove that such payments had been made in view of Rule 95, T.R.C.P. Moreover, there is a rule of evidence that where a state of things is proved to have existed at a particular time, its continuance is presumed until the contrary is shown. McCormick & Ray, Texas Law of Evidence, Vol. 1, p. 81, Burden of Proof and Presumption, Sec. 81.

If we are correct in what we have said hereinabove, the case was tried on the wrong theory. Furthermore, it was not fully developed. Our courts have held that where a case has been tried on the wrong theory, or has not been fully developed, it is not only proper but better serves the interests of justice to remand the case for a new trial. Southampton Civic Club v. Couch, Tex.Sup.1959, 159 Tex. 464, 322 S. W.2d 516; London Terrace v. McAlister, Tex.Sup.1944, 142 Tex. 608, 180 S.W.2d 619; Pelham Mfg. Co. v. Ridlehuber, Tex. Civ.App., 356 S.W.2d 502, writ ref., n. r. e.; White v. Watson, Tex.Civ.App., 383 S.W. 2d 243; Texas Emp. Ins. Ass’n v. Mahlow, Tex.Civ.App., 304 S.W.2d 161; General Ins. Corp. v. Smith, Tex.Civ.App., 232 S.W.2d 785, writ ref., n. r. e.

Reversed and remanded.

On Motion for Rehearing

We agree with appellee in his motion for rehearing that the trial court in his findings set out the four invoices totaling $5,-648.72, although appellant sued for only $4,795.61 since it credited appellee with $893.11 on Invoice No. 64958, dated March 7, 1962, and debited the account for $40.00, as shown on the statement attached to appellant’s open account, thereby judicially admitting that not more than $4,795.61 was unpaid and owing. The date of such invoice is as shown in the statement, but a re-examination of the statement indicates we were mistaken in saying the credit was given on the same date, since no date is given on the statement other than that of the invoice. Since such credit was given, it is our view the date thereof is not material. We stated in our opinion that there was nothing in the record showing any change in the account or any payments subsequent to the date of delivery of the goods or thirty days thereafter to the date of trial. We here modify such statement since the credit allowed as aforesaid may have been paid subsequent to the date of delivery or thirty days thereafter.

It is our view that appellee’s admissions made out a prima facie case in favor of appellant, and that such admissions entitled appellant to a ruling that ap-pellee should lose if he failed to come forward with evidence. Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, error dism. Appellee admitted that he had ordered the goods, that they were shipped and delivered to him, and that he agreed to pay the amounts of the invoices which were introduced in evidence without objection. He in effect admitted that the account was just, that the goods were lawfully chargeable to him and that he was liable therefor. He did not admit the $40.00 debit which was for rent. Deducting this $40.00 from the account leaves $4,755.61. In view of appellee’s agreement and admissions, it was not necessary for appellant to prove that the prices charged for the merchandise so delivered were either usual, customary or reasonable. Such admissions on his part, although they in effect negated his sworn plea that the claim was not just or true in whole or in part, did not prevent him from pleading and proving that the account was paid, or barred by limitation, or matters in confession and avoidance, or setting up a counter-claim. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, ref., w. m.

It should be noted that in H. G. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W. 2d 570, relied upon by appellee, the court stated that the letter that the appellee in that case had written was an admission that she owed the amount stated therein upon the date of the letter, but that such letter coupled with her undisputed testimony that she had paid such amount, was not sufficient to support the jury’s finding that she owed appellant such amount at the time of the trial. The instant case is distinguishable from that case in that, although appel-lee was twice upon the witness stand, he nowhere testified that he had paid anything on the price of the goods delivered to him which he said he agreed to pay according to the invoices.

Motion for rehearing overruled.


author: MURRAY, Chief Justice.

text:
    Frances LEVENSON, Appellant, v. Maidie R. ALPERT, Appellee.
    No. 14443.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1966.
    Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellant.
    Lagerquist, Shaw & Davis, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellant, Frances Levenson, against appellee, Maidie R. Alpert, now Maidie R. Fleischer, seeking to recover the sum of $2,752.50 damages, and $850.00 attorney’s fees, alleged to be owing by appellee to appellant by virtue of appellant’s finding a ready, willing and able purchaser of appellee’s property, pursuant to a real estate listing contract written and signed by appellee, and by virtue of appellee’s refusal to pay the agreed real estate commission.

Appellee filed a motion for summary judgment in this case, and appellant filed a controverting affidavit and a counter-motion for summary judgment. The trial court granted appellee’s motion, denied appellant’s motion, and rendered judgment that appellant take nothing against ap-pellee by her suit and pay all costs of court, from which judgment Frances Leven-son has prosecuted this appeal.

The listing contract involved herein is as follows:

“October 5, 1963 San Antonio, Texas
I agree to sell for the sum of $42,875, the property located north of 5150 and south of 5210 Blanco Rd and being the only property owned by me on Blanco Rd. I agree to pay'Frances Levenson a commission of 6% for the sale said property. Commission to be paid upon closing. This listing is an exclusive listing for a period ending October 12, 1963 after which this agreement is null and void.
I agree to furnish marketable title and prorate taxes to date of closing.
Terms of payment to be at my approval.
Maidie R. Alpert”

It is the contention of appellee that the last provision of the contract gave her the right to approve or disapprove the earnest money contract, that she did not approve it, and therefore appellant was not entitled to her commission. Ap-pellee further contends that this last provision rendered the listing contract void for uncertainty and vagueness.

The listing contract meets the requirements of Art. 6573a, § 28, Vernon’s Ann. Civ. St. It has been held that there are only four requirements of a valid listing contract, to-wit: (1) It must state the name of the broker to whom the commission is to be paid. (2) It must promise that a definite commission will be paid, or must refer to a written commission schedule. (3) It must be in writing and must be signed by the person to be charged with the commission. (4) It must, either itself or by reference to some other existing writing, identify with reasonable certainty the land to be conveyed. See Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568; Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222; Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150; Watson v. Brazelton, Tex.Civ.App., 176 S.W.2d 216.

The listing agreement herein contains all of the requirements. The last provision does not render the agreement void for vagueness and uncertainty; it means that appellant would have to find a purchaser ready, able and willing to purchase the land for cash, or upon terms approved by appellee. In her affidavit appellant states that she found such a purchaser, and if she has done so, she is entitled to her commission. It is true that the earnest money contract introduced in evidence calls for part cash and part credit, but appellant says the reason these terms were written in the contract was because they were suggested by appellee. It is plain that appellee never signed the earnest money contract. The controverting affidavit of appellant is sufficient to raise a fact issue as to whether or not appellant produced a purchaser who was ready, able and willing to purchase this land for cash or upon such terms as might be agreeable to appellee. Golden v. Halliday, Tex.Civ.App., 339 S.W.2d 715.

The fact that both parties filed motions for summary judgment does not mean that the court is at liberty to grant one or the other, and that in such event only questions of law are presented. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Crooks v. Aero Mayflower Transit Co., Tex.Civ.App., 363 S.W.2d 191; Arlington Ind. School Dist. v. James T. Taylor & Son, Tex.Civ.App., 322 S.W.2d 548, affirmed, James T. Taylor & Son v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371. The test is whether a fact issue to he decided by the court or jury is raised. If so, no summary judgment should he entered but a trial on the merits should he had.

The judgment is reversed and the cause remanded.


text:
    FLATO BROTHERS, INC., Appellant, v. James A. McKINNEY, Appellee.
    No. 194.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 24, 1966.
    See also Tex.Civ.App., 397 S.W.2d 525.
    Auforth & Bonniwell, by Charles A. Bonniwell, Corpus Christi, for appellant.
    No brief filed or appearance for appel-lee.
   GREEN, Chief Justice.

Appellant attempts to appeal from an order signed by the 94th District Court of Nueces County, Texas, setting aside a default judgment theretofore rendered by the court in this cause, and granting a new trial. Since such order is interlocutory, and not a-final judgment, this Court is without power to review it. Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Palmer v. D.O.K.K. Benevolent and Insurance Ass’n, 160 Tex. 513, 334 S.W.2d 149; Stocks v. Baptist General Convention of Texas, Tex. Civ. App., 362 S.W.2d 196; Appellate Procedure in Texas, § 2.5. See also Spikes v. Smith, Tex.Civ.App., 386 S.W.2d 346.

Appellant contends that the trial court abused its discretion in granting the motion for new trial, and that, notwithstanding the interlocutory nature of the order, this Court has the power on this appeal to pass on such question of abuse of discretion. This would necessarily require a consideration of the merits of the appeal. Since we have no jurisdiction over this attempted appeal, any consideration of the issue raised by appellant would constitute fundamental error on our part. McCauley v. Consolidated Underwriters, supra.

Appeal dismissed.


author: McDONALD, Chief Justice.

text:
    Agness Rebecca FIELDS, Appellant, v. Robert Carl FIELDS, Appellee.
    No. 4473.
    Court of Civil Appeals of Texas. Waco.
    Feb. 17, 1966.
    Rehearing Denied March 10, 1966.
    L. B. Dawson, Corsicana, for appellant.
    Kenneth A. Douglas, Corsicana, for ap-pellee.
   McDONALD, Chief Justice.

This is a divorce case. Robert Carl Fields sued Agness Rebecca Fields, alleging they had lived apart without cohabitation for more than 7 years. The proof showed that plaintiff and defendant separated in October, 1957; that on May 27, 1964 plaintiff married a party named Gladys Hughes, and had lived with her as man and wife since. The trial court granted the divorce on October 15, 1965. Appellant appeals, contending the trial court erred in granting the divorce because: 1) plaintiff was not lawfully living apart from defendant for a part of the 7-year period required by the statute (in that he unlawfully attempted remarriage) ; 2) plaintiff committed an illegal act (attempted remarriage) which prevented defendant from living with plaintiff.

Article 4629, Subdivision (4), Vernon’s Ann.Civ.St. provides that a divorce may be decreed where a husband and wife have lived apart without cohabitation for as long as 7 years.

Defendant says that plaintiff’s cause of action is based at least in part upon his own unlawful act of attempted or bigamous remarriage during the 7-year period, thus preventing defendant from living with him, and for this reason plaintiff’s action for divorce should be denied.

Subdivision (4) of Article 4629 is construed to require the spouse to live apart without cohabitation for 7 years; and the cause of the separation, and subsequent conduct, of the one seeking divorce are not proper subjects of inquiry. Robertson v. Robertson, CCA (n. w. h.), 217 S.W.2d 132; Spray v. Spray, CCA, W/E Dismissed, 368 S.W.2d 159.

In the instant case the proof showed that plaintiff and defendant lived apart without cohabitation for 7 years. Under the cited cases, the fact that plaintiff was guilty of bigamy during the 7-year period does not preclude the granting of plaintiff’s divorce under such subdivision.

Defendant’s contentions are overruled.

Affirmed.