author: LANGDON, Chief Justice. CLAYTON, Justice

text:
    Darrell SMITH, Appellant, v. The OHIO OIL COMPANY, Appellee.
    No. 5519.
    Court of Civil Appeals of Texas. El Paso.
    April 4, 1962.
    Rehearing Denied May 2, 1962.
    Warren D. Barton, Garland Casebier, Midland, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, F. H. Pannill, Midland, J. O. Terrell Couch, Houston, of counsel, for appellee.
   LANGDON, Chief Justice.

This is a summary judgment case. The principal question is whether a contractor, engaged by the owner of an oil and gas lease to perform work-over or reworking operations upon such oil and gas lease, is obligated to appellee, under the terms and provisions of an indemnity contract, to indemnify the owner against liability for injuries sustained by an employee of contractor, resulting from the negligence of the owner, the accident having occurred while contractor was performing work and services for the owner.

On or about March 31, 1953, The Ohio Oil Company (appellee) was the owner and operator of certain oil and gas wells in Lea County, New Mexico, and on that date appellee and Darrell Smith (appellant) entered into a written contract by the terms of which appellant agreed to perform certain work-over services on one of these wells operated by appellee in New Mexico. On or about April 18, 1953, one Alva A. Hunt, who was an employee of appellant, was injured while working for appellant in the performance of the work-over services under the contract. Hunt’s injuries were sustained when he fell from a test tank owned by appellee The Ohio Oil Company and furnished to appellant for use in performing the work-over operations pursuant to the contract. It is admitted by all parties that the injuries sustained by the employee were serious.

As the result of the injuries sustained by Hunt, a suit was filed in the District Court of Lea County, New Mexico, on or about April 17, 1958, in which Alva A. Hunt and Houston Fire and Casualty Insurance Company were plaintiffs, and ap-pellee herein was named defendant. Damages were sought in the sum of $250,000.00. Hunt alleged that his injuries were proximately caused by negligence on the part of The Ohio Oil Company in the performance of some duty which the company owed him. Appellant, Darrell Smith, had notice of the filing of the suit, but was not made a party thereto and refused to defend or participate in such suit when called upon to do so by The Ohio Oil Company. Appellant, Darrell Smith, having refused to defend the suit, appellee proceeded to compromise and settle the Hunt case, and an agreed judgment was entered therein. Thereafter, appellee instituted the instant suit in the District Court of Midland County, Texas, against appellant Darrell Smith, seeking recovery of $15,000.00 paid by it in satisfaction of the agreed judgment in the Hunt case, as well as attorneys’ fees and other expenses incurred by it in the defense and settlement of such case.

From the summary judgment awarding appellee the sum of $19,206.50, appellant has perfected this appeal.

Appellant’s first three points are based upon the contention that the indemnity provisions of the contract do not indemnify appellee against damages resulting from appellee’s own negligent conduct; that the indemnifying provisions of the contract between appellant and appellee do not contain language covering the cause of action asserted by Hunt in the New Mexico case; and that the trial court erred in granting appellee judgment based on the amount paid to Alva A. Hunt in settlement of the New Mexico action.

Third party actions such as the one here involved have given rise to an ever-increasing number of law-suits where the single question involved is a determination of whether the provisions of an indemnity contract may be so construed as to indemnify a person against his own negligence.

The courts of almost every jurisdiction pay lip service, at least, to the general rule that * * * contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.” Others say that such construction “ * * * must be required by clear and explicit language of the contract.” A federal court has held that “Under New York law, a person is not entitled to be indemnified against liability to which his own active negligence contributed unless the contract expresses that intention beyond all doubt.” Thompson-Starrett Co., Inc. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35 (1936); County of Alameda v. Southern Pacific Co. et al., 55 Cal.2d 479, 11 Cal.Rptr. 751, 360 P.2d 327 (1961); Cozzi v. Owens Corning Fiber Glass Corp. et al., 59 N.J.Super. 570, 158 A.2d 231 (1960) ; Miller v. The Pennsylvania Railroad Co., 236 F.2d 295 (2 Cir. 1956). But, to the contrary, several recent cases can be found that allow indemnity for one’s own negligence even though words of general import are used to express such intent. Bounougias v. Republic Steel Corp., 277 F.2d 726 (7 Cir. 1960), where the language, “In the consequence of the carrying on by the Seller of the work,” was held to express such intent; Princemont Construction Corp. v. Baltimore & Ohio Railroad Co., D.C.Mun.App., 131 A.2d 877 (1957)— “In connection with or growing out of the use of said premises”; Hartford Accident & Indemnity Co. v. Worden-Allen Co., 238 Wis. 124, 297 N.W. 436 (1941)— ’“Due to, arising from, or connected with your operations on this job”; Russell Continental Casualty Co. v. Shell Oil Co., Inc., 339 Ill.App. 168, 89 N.E.2d 415 (111.1949) — “Resulting from or arising in connection with any of contractor’s operations”; St. Paul Mercury Indemnity Co. v. Kopp, Ohio App., 121 N.E.2d 23 (1954) —“Growing out of or in any way connected with the performance of the work.” However, most text book authorities have adopted the rule of strict construction. 175 A.L.R. 144, Sec. 68.

We would draw a distinction between the cases involving the rental of equipment and lease agreements covering real and personal property, on the one hand, and cases involving agreements between owners and contractors on the other. In the first type of case the indemnitor is generally the lessee who agrees to take specified machinery, equipment, land, buildings or premises “in the condition in which he finds them”; the determination on the question of whether the subject matter of the lease is “safe” and whether it is suitable for the purposes for which it is to be leased are questions most often left up to the lessee. In addition, factors involving the degree of control, the exclusive nature of possession and other incidents of the .relationship created by such agreements, when coupled with an agreement on the part of the lessee to “indemnify” or “hold harmless” the owner or lessor thereof from damages growing out of or connected with the lessee’s use or occupancy of the instrumentality or premises, renders it unnecessary for the parties to say in so many words that the indem-nitor intended to protect the indemnitee against liability for negligence. In such cases, “An obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the indemnitee may thereby be .relieved of his own negligence.” Mitchell’s Inc. v. Friedman, 157 Tex. 424, 303 S.W. 2d 775 (1957).

In the Friedman case, supra, the question before the court was whether the original lessee in a building lease, who had assigned the leasehold estate with an agreement to remain responsible for the performance of all the lease terms, was obligated by the indemnity provisions of the lease to indemnify the lessor against liability for injuries received on the leased premises by a customer of the assignee. Friedman was the original lessee and had sub-let the building to Brockles. One Zo-bel, while in the building as a customer of Brockles, was injured when struck by plaster and lathing which fell from the ceiling. Suit was against the lessor and others. The lessor (Mitchell’s Inc.) asserted by way of cross-action that Friedman (the original lessee) was obligated to hold it harmless from any damages which might be received by Zobel. In passing upon the question, Justice Walker, speaking for the Supreme Court of Texas, said:

“If Zobel’s injuries were caused by improper construction, defects or want of repair of the building as the allegations of the petition seem to indicate, his claim falls within the express provisions of the indemnity agreement and petitioner (lessor) is entitled to insist that .respondent (original lessee) discharge his obligations thereunder.”

The indemnity agreement construed in the Friedman case related to a “specified instrumentality” (a building), which was the subject of the lease. The lessee agreed that the lessor would not be liable to the lessee, or to lessee’s employees, patrons or visitors, for any damage to persons or property, due to the building on said premises or any appurtenance thereof being improperly constructed, or being or becoming out of repair, nor for any damages from any defects or want of repair of any part of the building of which the leased premises form a part. The lessee also agreed to accept the building and premises as suitable for the purposes for which same were leased; he waived defects therein and agreed to hold the lessor harmless from all claims for any such damage.

An entirely different situation is presented in the usual owner-contractor agreement. The work to be performed seldom consists of a single “specified instrumentality” or of a single “specified operation”, but may involve and consist of a number and variety of different instru-mentalities and operations requiring different skills, techniques, and often special equipment and personnel. The hazard and risk inherent in each individual operation (required to complete the work called for) may also vary. Some operations may be under the joint control of the owner and the contractor; the agreement may provide that the contractor furnish all labor, materials and equipment used in the work to be performed; or it may require the contractor to use some tools, equipment or employees of the owner; the premises upon which the work is to be performed may be unsafe or be rendered unsafe by the owner during the progress of the work being performed by the contractor. Because of these and hundreds of other possible conditions which may exist or arise, over which the contractor may, or may not, have control, it seems to us that the “express negligence” rule is the better reasoned and fairest rule, and should be applied in cases such as are presented by the facts of the case now before us. The application of the rule involves no problems of construction, and presents but a single question: Is the negligence of the indemnitee expressly referred to?

We do not consider the “express negligence” rule to be either new or novel. It has long been applied to fact situations such as are presented here (involving an owner and contractor).

The basis and reasoning behind the rule is discussed in a 1907 Pennsylvania case, Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173, wherein it is said:

“It is contrary to experience and against reason that the contractors should agree to indemnify Perry (owner) against the negligence of himself or his employés. It would make them insurers, and impose a liability upon the contractors, the extent of which would be uncertain and indefinite, and entirely in the hands of Perry. * * * A single act of negligence on the part of the owner or his employés, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could not repay.”

In the instant case the particular provisions of the indemnity agreement with which we are concerned read as follows:

“15. Ohio indemnified:

“Ohio shall not be liable or responsible for and Contractor shall save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly to the operations of Contractor hereunder. Contractor shall likewise indemnify Ohio for any and all injury or damage to property belonging to Ohio, arising out of or in connection with or resulting from any and all' acts or omissions of Contractor hereunder.”

Paragraph 17(a) of such contract further provides as follows:

“17. Statutes to be complied with:

“(a) Contractor agrees to comply with the Workmen’s Compensation Act of the State of New Mexico and to pay or cause to be paid all compensation, medical or hospital bills which may become due or payable thereunder, and to protect and indemnify Ohio from and against any and all liability by reason of injury of employees of Contractor. Contractor shall furnish Ohio with a certificate from the State Agency charged with the administration of the Workmen’s Compensation Act evidencing Contractor’s compliance therewith.” (Emphasis supplied)

The suit by Hunt in New Mexico against The Ohio Oil Company was based solely on negligence attributed to Ohio. Hunt had already recovered benefits due him under his employer’s (appellant’s) Workmen’s Compensation policy, and the record before us reflects that such employee had been paid all compensation, medical or hospital bills due or payable thereunder. This we believe completely satisfied any obligation imposed upon appellant by virtue of the indemnity provisions of paragraph 17(a) set out above.

Paragraph 15 imposed three separate obligations upon the contractor as follows :

(1) for injury to or death of any person;
(2) for damage to or loss of property ; and
(3) for injury or damage to property belonging to Ohio.

Under the provisions of paragraph 15, contractor agreed to save and hold harmless Ohio against all claims and damages of every kind with respect to items (1) and (2) “arising out of or attributed, directly or indirectly to the operations of Contractor hereunder.” It is not contended that any property belonging to Ohio was injured or damaged “arising out of or in connection with or resulting from * * * (any) * * * act or omissions of the Contractor hereunder.” We believe, therefore, that the only language of paragraph 15 which specifically refers to the injury or death of any person, for the purpose of attaching liability therefor to the contractor, are the words “arising out of or attributed, directly or indirectly to the operations of the Contractor hereunder.” The negligence of Ohio is not referred to, and in such case, under the “express negligence” .rule (discussed above), the contract could not be construed to indemnify Ohio against its own negligence, and no further inquiry or construction of the contract would even be required.

The entire contract is before us, and we have carefully examined not only the quoted excerpts above which were plead and relied upon by appellee to establish its cause of action against appellant, but we have also carefully examined the contract as a whole.

The words in the indemnity clause used by the contracting parties were words of general import. ■ Therefore, if the parties did, in fact, intend that the contractor indemnify Ohio against its own negligence, such intent is not expressed in “unequivocal terms”, nor is such construction “required by clear and explicit language”; neither can it be said that the contract “expresses that intention beyond all doubt.”

Construction of indemnity contracts requires that the intention of the parties, or the scope of the indemnitor’s undertaking, first be determined by ordinary rules of construction without indulging presumptions in favor of either the indemnitor or the indemnitee; but after the scope of the indemnitor’s undertaking has been thus determined, he is entitled to have such undertaking strictly construed, and it will not be enlarged or extended by construction or implication beyond the terms of, the contract, especially where the contract was prepared by the indemnitee. 42 C.J.S. Indemnity § 8b, p. 576.

In the instant case appellant, as the in-demnitor, undertook to indemnify Ohio against claims and damages of every kind for injury to or death of any person arising out of or attributed, directly or indirectly, to the operations of the contractor. The parties agreed that Ohio would furnish certain labor, material and services, and that contractor would furnish certain other materials, equipment and services, for which contractor was to be compensated on an hourly basis at the rate of $22.00 per hour. Ohio, among other things, agreed to furnish water, fuel, special fluids (drilling muds and emulsions), mud-testing equipment, tubing, packers, casingheads, Xmas tree, etc. It also agreed to furnish mud engineering service, cement and cementing service, electric log equipment and services, as well as the labor and material for roads and bridges to location, mud sumps and other earthen pits, the cellar and the labor for rat-hole and mouse-hole installed. The particular test tank from which the employee is alleged to have fallen was not one of the specified items required to be furnished by either party, although it is undisputed that the tank belonged to Ohio and was brought in, located, spotted and set up on the lease by Ohio. Appellant also contends that he had no control over the tank, had nothing to say about how it was to be used, or in what condition it was to be kept, and that he had no authority to make any changes, repairs or alterations in the use of the tank. Appellant’s contentions with respect to the ownership and control of the test tank are asserted in a sworn affidavit, signed by appellant and attached to his answer and motion for summary judgment, and are not denied by appellee.

As we interpret the contract as a whole, we have concluded that the liability of the contractor for the injury or death of any person (except injuries or death for which he would be liable at common law or under the Workmen’s Compensation laws of the State of New Mexico) was limited by express terms of the indemnity clause to claims and damages arising out of or attributed to “operations of the contractor hereunder”. The term “operations” is used in two or more different senses in the contract. In the indemnity clause we believe it is used in the sense of what the contractor did, and refers to his action, agency, performance or influence in causing or bringing about the particular claim and damages against which Ohio seeks to be indemnified. Elsewhere in the contract the term “operations” is used to designate particular processes or procedures to be applied to the well under the work-over job. Exhibits “A” and “B” attached to the contract and made a part thereof are schedules of drilling equipment, materials and services and of the drilling operations to be performed. In these exhibits Ohio is identified as the “operator”, and appellant Smith as “contractor.” Under the terms of the agreement, both Ohio and the contractor were to perform or cause to be furnished certain specified services in connection with the work-over, as well as certain specified equipment and supplies. The test tank, however, was not one of the specified items required to be furnished by either party.

Since Ohio, in its capacity as owner and “operator” of the lease, was expressly obligated to do and perform (or furnish) certain services in connection with the work-over job, it may fairly and reasonably be assumed that not all “operations” under the contract were to be performed by contractor; but, to the contrary, it clearly appears that part of the operations were to be performed by Ohio, and if not by Ohio, by others (third parties) engaged by Ohio for that purpose.

From what we have said, it follows that we are of the opinion that the indemnity provisions of the contract were not broad enough to cover claims and damages caused by Ohio’s own negligence, and we so hold. In our opinion the phrase “operations of Contractor hereunder” expressly limited the contractor’s liability under the indemnity provisions of the contract to something" the contractor himself did. Assuming, as we believe we are entitled to do under the undisputed facts of this case, that the loss was caused by the defective condition of the test tank furnished by Ohio, no liability would attach to the contractor under the terms of the indemnity agreement by reason of the resulting claim and damage against Ohio, unless the contractor had agreed to insure Ohio against its own negligence. We do not believe it sufficient to merely establish that the accident occurred at a time when contractor was engaged in the performance of his work on the lease, or that it was one of his employees who was injured, where it is not contended that the accident was caused by some specific act, deed or influence of the contractor.

Where the “express negligence” rule is not applied, and a construction of the contract is .required, especially in a case such as this, calling for the re-working or work-over of an oil well, the conditions are similar to those involving contracts calling for the construction of buildings or other improvements; in such cases, the scope and extent of the indemnity clause will be more strictly construed than would be the case if the indemnity clause was one involving a contract for the rental or lease of a building or equipment.

The damage or injury must be such as fairly falls within the scope of the indemnity provisions of the contract; otherwise there can be no recovery therefor by the indemnitee from the indemnitor. The contract does not expressly provide, nor do we believe it broad enough, to be fairly and reasonably susceptible to a construction which would impose an obligation upon the contractor to indemnify Ohio against its own negligence. It follows, in such case, that the indemnitor cannot be held liable to indemnify for any personal injuries resulting from the indemnitee’s negligence or the negligence of its employees.

We have pointed out that the particular instrumentality (the test tank) which allegedly caused the injuries resulting in the damages complained of, was not one of the specified items required to be furnished by either party to this contract, nor is it shown that the Contractor requested Ohio to furnish such tank after the work commenced. However, by .reason of its dangerous and defective condition, it unquestionably increased the hazard surrounding the work. It has been held that where the hazard is increased in an unexpected manner by some act or negligence of the indem-nitee, indemnitor will not be liable to in-demnitee for loss or damage resulting therefrom. 42 C.J.S. Indemnity § 12d, p. 582; Pennsylvania R. Co. v. Roydhouse, 267 Pa. 368, 110 A. 277.

Appellant’s first three points are sustained, and all other points raised by appellant are overruled. Our holdings discussed above require that the judgment of the trial court be reversed, and that judgment be here rendered for appellant, and it is so ordered.

CLAYTON, Justice

(concurring).

I agree with the conclusion reached in this case. To have made any other disposition of the matter would have been to impose upon appellant the broad and strict responsibilities of an insurer of appellee against liability for injuries which might arise under any circumstances, whether those circumstances were in any degree under the control of appellant or not. On the contrary, appellant was bound only by a contract of indemnity, insofar as this case is concerned, “for injury to * * * any person * * * arising out of or attributed, directly or indirectly to the operations of Contractor hereunder.”

In Quinones v. Township of Upper Moreland, et al., 187 F.Supp. 260 (160) at page 266, the United States District Court for the Eastern District of Pennsylvania presents a review of the so-called “express negligence” rule. The court states:

“In Pennsylvania the general rule is that a contract of indemnity will not be held to protect the indemnitee against the consequences of his own negligence unless such intent is clearly shown in the contract. The reasoning most frequently offered to support this rule is that to hold otherwise would be to put the indemnitor at the mercy of the indemnitee’s negligent conduct, a result which the court would not permit absent a clear showing that the parties so intended.”

citing, among many other cases, Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173, referred to in the opinion in the instant case.

Similar language is not unknown to Texas courts. In the case of San Antonio & A. P. Ry. Co. et al. v. Adams, 6 Tex. Civ.App. 102, 24 S.W. 839, plaintiff was an express messenger in the employ of the Pacific Express Company. By contract between the express company and the defendant railroad company, the latter was bound to carry the plaintiff and goods in his charge in the baggage car of its passenger train, which was exclusively under the control of the defendant. Through the latter’s negligence, the car in which the plaintiff was riding fell through a bridge, injuring plaintiff. A clause in the contract between the two companies read as follows:

“B. Said express company assumes all risk of loss or damage arising out of, or resulting from, its operations under this agreement, and shall hold harmless the said railway company against the same.”

The court held:

“The express company assumed risks ‘arising from its operations’ under the agreement, — that is, as we construe it, its own losses, and losses for which it would be responsible. It was not liable, in any sense, to plaintiff for his injuries caused by the negligence of the railway company in failing to keep its bridges and roadbed in repair, and his injuries could not be a loss to the express company. * * * The railway company could not contract to make a third party responsible to its employes, or to passengers, for its negligence and wrong, so as to bind the latter, even with their consent, nor will we be understood as holding that such a contract would be binding upon such third party; but we rest our opinion upon the contract itself, as not intended to create such a liability.”

It occurs to this writer that in a case such as the instant case, which involves the interpretation of an owner-contractor agreement including indemnity provisions, the application of the “express negligence” rule leads to a greater degree of fairness as well as to more uniformity of decisions, and will, in all likelihood, reduce the volume of litigation.


source: Caselaw Access Project

author: RICHARDS, Justice. ARCHER, Chief Justice HUGHES, Justice

license: Public Domain

text:
    Joyce McCORMICK, Appellant, v. STOWE LUMBER COMPANY, Appellee.
    No. 10938.
    Court of Civil Appeals of Texas. Austin.
    April 11, 1962.
    Rehearing Denied May 2, 1962.

      Taylor & Taylor, Temple, Byrd, Davis & Eisenberg, Austin, for appellant.
    Brown, Sparks & Erwin, Austin, for ap-pellee.
   RICHARDS, Justice.

This is a summary judgment case. Suit was originally brought by Joyce McCormick, appellant, against Stowe Lumber Company, appellee, to recover damages for personal injuries sustained by appellant while riding in an automobile driven by Lou Anne Keller which collided with the rear-end of a truck owned by Stowe Lumber Company. In her first original petition appellant joined Lou Anne Keller as a party defendant, alleging that on June 13, 1959 at the intersection of Highway 81 and Farm Road 346 in Belton, Texas the car driven by Lou Anne Keller, in which appellant was riding as a passenger, was struck by a truck owned by Stowe Lumber Company and operated by its employee, and as a result of the collision appellant was injured; that the injuries suffered by appellant were “directly and proximately” caused by the negligence of Lou Anne Keller and also by the negligence of the driver of ap-pellee’s truck, each being guilty of many acts of negligence which jointly and severally proximately caused the injuries suffered by appellant.

Appellee Stowe Lumber Company moved for summary judgment against appellant upon the ground that the pleadings together with depositions of Lou Anne Keller and appellant showed as a matter of law that defendant Lou Anne Keller was negligent at the time of the collision, which negligence was a proximate cause of the collision and the injuries sustained by appellant ; that at the time of the collision appellant and Lou Anne Keller were engaged in a joint enterprise and that the negligence on the part of Lou Anne Keller was imputed to appellant. Appellant filed her reply to the motion for summary judgment denying that appellee was entitled to summary judgment and in the alternative in the event appellee was granted a summary judgment, appellant asked for summary judgment in her favor against Lou Anne Keller, which reply was supported by appellant’s affidavit which in substance denied that appellant had any control over Lou Anne Keller who was the driver of the automobile at the time of the collision. Lou Anne Keller answered by special exceptions, general denial and specially denied that she was guilty of any negligence proximately causing the collision.

On February 17, 1961 the Trial Court heard appellee’s motion for judgment and considered the pleadings then on file, the depositions of appellant, Lou Anne Keller and William T. Headrick, a police officer for the City of Belton who had investigated the collision which occurred within the city limits of the City of Belton, and the hearing having concluded on the same day, took the motion under advisement.

On March 23, 1961 the Trial Court granted appellee’s motion for summary judgment that appellant take nothing against it, from which adverse judgment this appeal was perfected. On March 31, 1961 the Trial Court heard appellant’s motion for summary judgment against Lou Anne Keller and finding that there were disputed issues of material fact, denied the motion. At appellant’s request, the Court then severed her cause of action against Lou Anne Keller from her cause of action against appellee.

For her first point of error appellant asserts that the Trial Court erred in holding as a matter of law that appellant and Lou Anne Keller were on a joint enterprise at the time of the collision.

Appellant Joyce McCormick and Lou Anne Keller were longtime friends having grown up together in Seguin. About May 1, 1959 Lou Anne moved to Joyce’s apartment in Austin as her roommate and since Joyce did not have a car they used Lou Anne’s 1956 Studebaker. When they were together usually Lou Anne drove although Joyce sometimes drove the car in Austin. Several weeks before the collision Joyce and Lou Anne decided they wanted to go to Gatesville, Texas to attend a rodeo to be held on the day of the collision.

Lou Anne’s car was not operating properly so several days before the collision Lou Anne and Joyce took the car to Seguin to be repaired, and while in Seguin they borrowed a car belonging to Joyce’s mother and father, Mr. and Mrs. Kunkel, and returned to Austin. Shortly after noon on June 13, 1959 Joyce and Lou Anne started from Austin to Gatesville in the Kunkel car with Lou Anne driving. At some point between Round Rock and Georgetown Joyce went to sleep and was still asleep at the time of the accident so that she was entirely ignorant as to how or why the accident occurred.

The collision occurred within the city limits of Belton, Texas at the intersection of U. S. Highway 81 and Farm Road 436 at about 5:30 P.M., at which time it was broad daylight, the visibility was clear and the roadway was dry. At the place where the collision occurred U. S. Highway 81 is a divided highway with one 2-lane paved roadway for southbound traffic and one 2-lane paved roadway for northbound traffic, which are separated from each other by about 10 feet of unpaved area. At or near its intersection with Farm Road 436, the northbound roadway of U. S. Highway 81 runs generally north and south and Farm Road 436 runs generally east and west, the northbound roadway curving gently to the right but not enough to interfere with the forward vision of persons driving thereon. Farm Road 436 is a paved 2-lane highway and intersects at right angles with and forms a deadend at the northbound roadway of U. S. Highway 81, the latter having a broad stripe dividing the highway into two traffic lanes. For a distance of about 20 feet immediately south of the intersection the paved portion of the northbound roadway widens on the east side to make a narrow third lane for the use of drivers turning to their right off of the northbound roadway to Farm Road 436.

Immediately prior to the collision an empty trailerrig owned by appellee was travelling the northbound roadway of U. S. Highway 81 and approaching its intersection with Farm Road 436. The Kunkel car was following the truck in the same lane on the northbound roadway of U. S. Highway 81. The collision occurred when the right front of the Kunkel car struck the left rear of the trailer.

In granting appellee’s motion for summary judgment, the Trial Court held that as a matter of law, appellant and Lou Anne Keller were engaged in a joint enterprise at the time and on the occasion of the collision of the Kunkel car with appellee’s truck. If appellant and Lou Anne Keller were engaged in a joint enterprise then as a matter of law if Lou Anne Keller was guilty of negligence, such negligence is legally imputed to appellant. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187.

In summary judgment proceedings under Rule 166-A, Texas Rules of Civil Procedure, the burden rests upon the movant to successfully negate the existence of genuine issues of material fact and all doubts as to the existence thereof must be resolved against the movant. Gulbenkian v. Penn. 151 Tex. 412, 252 S.W.2d 929, 931.

Appellant asserts that the holding of the Trial Court that appellant and Lou Anne Keller were engaged in a joint enterprise was based upon the decision of the Commission of Appeals in El Paso Electric Co. v. Leeper, supra, but contends that in that case there was no evidence of a course of conduct whereby one party drove exclusively while in the instant case there was evidence that Lou Anne Keller drove exclusively upon the highway not only as a matter of custom and practice but in reliance upon an express understanding which would raise an issue of material fact precluding the granting of the summary judgment. In view of appellant’s contention it is necessary to compare the factual situation disclosed in the opinion in the Leeper case with the uncontradicted factual situation presented to the Trial Court in the summary judgment proceedings.

As announced in the Leeper case, the rule of law governing the question of joint enterprise is that:

“Where persons are engaged in a common or joint enterprise and each has an equal right to direct and control the conduct of the others with respect to acts or omissions which contributed to cause an injury to one of them, the negligence of one of such persons is imputed to each of the others.
“ * * * Occupants of a conveyance are supposed to be on a joint expedition where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.”

The opinion in the Leeper case has been cited and expressly approved in Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129, 132; Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65, 68; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W. 2d 474, 476. Therefore if a driver and a passenger have a common purpose and object in making an automobile trip and if the passenger has an equal right, either express or. implied, to direct and control the conduct of the driver in the operation of the vehicle, there is a joint enterprise and the negligence of the driver will be imputed to the passenger. ■

Since the right to control the conduct of the driver and not the actual control of the driver’s conduct constitutes the legal test, the question to be decided is: Did appellant have an equal right to control the conduct of the driver, Lou Anne Keller who was driving and operating the Kunkel automobile at the time of the collision ?

In the Leeper case Miss Leeper sued El Paso Electric Company for damages for personal injuries alleged to have been received by her as a result of the negligence of the Electric Company. The evidence showed that while the car in which Miss Leeper was riding and being driven by Lt. Nutter was rounding a curve on a wet paved road, it left the pavement and struck one of the transmission line poles belonging to the Electric Company and as a result of which Miss Leeper was badly injured. The accident occurred at night.

The jury found the Electric Company guilty of negligence in maintaining its transmission line pole where it was located and also found that Lt. Nutter who was driving the car at the time of the accident was negligent, which negligence was a proximate cause of the accident.

The evidence showed that the car belonged to Miss Leeper’s mother; that Lt. Nutter drove to Miss Leeper’s home in his own car but since another couple wished to go to a dance with Lt. Nutter and Miss Leeper, Lt. Nutter’s car could not be used because it had only one seat. Miss Leeper then asked her mother for the use of her mother’s car, which request was granted. Lt. Nutter was not expressly requested to drive but he did drive because he always drove Miss Leeper’s mother’s car when he. and Miss Leeper used that car. Miss Leeper testified that she did not know that Lt. Nutter was requested to drive since he always drove by a sort of common consent and whenever she was with him in that car (her mother’s) she always let him drive. Mrs. Leeper knew that Lt. Nutter was going to drive her car and acquiesced in that arrangement because she rode part of the way to the dance with Lt. Nutter and Miss Leeper and during that portion of the trip Lt. Nutter was driving.

Miss Leeper’s mother testified that she had loaned her car to her daughter and Lt. Nutter on many previous occasions whenever Miss Leeper requested it and that on the occasion of the collision she turned the car over to Lt. Nutter. Miss Leeper testified that she had nothing to do with the driving of the car and that she did not know the way they were going to take to go to the dance since that was left to Lt. Nutter and that she never did say anything to him or anything of that sort because she was always perfectly at ease.

Based upon the testimony, the Commission of Appeals held that as a matter of law Miss Leeper and Lt. Nutter were engaged in a joint enterprise.

In the case at bar the testimony of appellant’s right to control Lou Anne Keller’s operation of the car at the time and on the occasion of the collision is strikingly similar to the testimony in the Leeper case. Appellant testified that from the time she separated from her husband until her divorce was granted she frequently travelled from place to place in Miss Keller’s car and sometimes drove it. The car which was driven at the time of the collision belonged to her mother but was in her father’s name and that on previous occasions when appellant and Lou Anne had gone to their respective homes in Seguin they had used the car belonging to appellant’s parents, which sometimes was driven by appellant and sometimes by Lou Anne but Lou Anne did most of the driving on the highway.

About three days before the collision appellant and Lou Anne took Lou Anne’s car to Seguin so that it could be repaired at which time appellant asked her mother to lend her car to appellant and Lou Anne because Lou Anne’s car was being repaired and that they had no way to “get around.” Appellant’s mother agreed to lend her car knowing that appellant and Lou Anne planned to drive it to Gatesville to the rodeo. Both appellant and Lou Anne wanted to go to the rodeo at Gatesville to meet some mutual friends.

On the trip to Gatesville, it was taken for granted that Lou Anne would drive because she always drove on the highway and appellant went to sleep during the trip and was asleep at the time of the collision.

Lou Anne Keller testified that she and appellant used Lou Anne’s car whenever either one wanted to use it and that either one could and did drive it; that she and appellant were going to the rodeo at Gatesville because both of them wanted to go and that when she took her car to Seguin for repair, appellant’s mother offered to let appellant and Lou Anne use appellant’s mother’s car which was driven by both Lou Anne and appellant in Austin.

The factual situations in the Leeper case and the instant case are practically parallel. In both cases plaintiff’s mother loaned her car to the plaintiff and her companion. In both cases plaintiff’s mother knew and acquiesced in the companion driving the car. In both cases the companion was driving the car at the time of the collision by common consent because in each case the companion always drove under similar circumstances. In both cases the plaintiff was exercising no actual control over the operation of the cars by the companion at the time of the collision. In both cases even though the plaintiff had relinquished all actual control of the car to the companion, there was no question that the plaintiff at all times retained the right to control the companion’s operation of the car.

In addition, on the question of the right to control, appellant testified that appellant had been driving Lou Anne’s car prior to the date- of the collision and if Lou Anne had told her to drive more slowly or to turn the operation of the car over to Lou Anne, she would have done so and that on the trip during the course of which the collision occurred, had she given Lou Anne any instructions as to the manner in which Lou Anne was to drive appellant’s mother’s car or had told her to turn the operation of the car over to appellant, Lou Anne would have obeyed because the car belonged to appellant’s mother.

Lou Anne Keller testified that she would have obeyed any instructions that appellant might have given her regarding the operation of appellant’s mother’s car and if appellant had told her to turn the operation of the car over to her, she would have done so because the car belonged to appellant’s mother.

It is clear from the testimony of both appellant and Lou Anne Keller that the evidence on the right to control the companion’s operation of the car is much stronger than the evidence on the right to control stated in the opinion in the Leeper case.

Appellant cites several cases in support of his contention, the first of which is Ener v. Gandy, 138 Tex. 295, 158 S.W.2d 989. Here the Supreme Court held that the evidence did not raise the issue of joint enterprise between the son and the mother who was a passenger in the automobile driven by the son and since the “family purpose” doctrine has been rejected in this State, the only issue upon which the plaintiff could recover would be upon the relationship of principal and agent or master and servant, holding that the mother was only a passenger in the automobile as the guest of her son. Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951, 953, also involved the “guest” doctrine. Therefore, neither of these cases is in point.

In Buss v. Robison, Tex.Civ.App., 255 S.W.2d 339, error ref., N.R.E., the jury found that the plaintiff and the driver of the automobile were not engaged in a joint enterprise at the time and place of the collision and therefore the negligence of the driver could not be imputed to his companion. The Court held that this finding was based upon the uncontradicted evidence that at the time of the collision the driver and his companion were headed for two separate places some miles apart under the instructions of their employer to engage in two separate jobs neither of which was related to the other and therefore as a matter of law the evidence failed to show the existence of all the elements of joint enterprise. Here the evidence plainly shows that the journey to Gatesville was undertaken jointly by appellant and Lou Anne Keller for the purpose of attending a rodeo and therefore the cited cases are not applicable.

The last case cited by appellant is a quotation from Stafford v. Roadway Transit Co. (U.S.C.A. 3) 165 F.2d 920, which seemingly supports appellant’s contention. However, it is the rule in Pennsylvania where the case was tried that the negligence of a driver of a vehicle can he imputed to a passenger therein only when the evidence justifies a finding of the passenger’s right to share in the control of tire vehicle at the time of the negligence which is the test of such imputability whether the driver and passenger were engaged at the time in a joint enterprise or not. The rule is applicable even though the passenger is the owner of the vehicle if the driver, although operating the vehicle with his permission, is not acting as his agent or servant. In the cited case the passenger was the owner of the vehicle but the driver, although operating it with his permission, was not acting as his agent or servant and therefore under the Texas law the owner was a guest to whom no negligence could be imputed.

None of the cases cited sustain appellant’s contention when applied to the factual situation before us. Applying the rule of law governing joint enterprise in the operation of a motor vehicle and comparing the factual situations developed in the Leeper case and the case at bar, it is our opinion that the Trial Court was correct in holding as a matter of law that appellant and Lou Anne Keller were engaged in a joint enterprise at the time and on the occasion of the collision and therefore any negligence on the part of Lou Anne Keller is imputed to appellant as a matter of law. Appellant’s first point of error is overruled.

Appellant assigns as her second point of error that the Trial Court erred in holding as a matter of law that Lou Anne Keller was guilty of negligence which proximately caused the collision.

The motion for summary judgment was heard by the Court on March 17, 1961 but judgment was not entered until March 23, 1961. The judgment contains the following recitations:

“Thereupon the Court heard the aforesaid motion, the pleadings, depositions, and other documents introduced into evidence in connection with said motion, and the arguments of counsel. The hearing was concluded on March 17, 1961, and the Court announced that the said motion would be taken under advisement.”

Among the pleadings, depositions and other documents which were considered by the Trial Court on March 17, 1961 were appellant’s first amended petition and the depositions of appellant, Lou Anne Keller and William T. Headrick, a police officer for the City of Belton. Lou Anne Keller’s deposition as an adverse witness was offered by appellee but Mr. Headrick was appellant’s witness.

Officer Headrick testified that as a police officer for the City of Belton he investigated the collision, which occurred within the city limits of Belton, immediately after its occurrence and within an hour and a half thereafter he interviewed Lou Anne Keller at the hospital in Belton to which she had been taken following the accident; that during their conversation Lou Anne Keller stated that she had been driving about 65 miles an hour in a 50 mile zone when she started to pull around the truck but that she was “just too close to get around him.” In her deposition Lou Anne admitted making the statement to officer Headrick.

Her admission that she was driving about 65 miles an hour in a 50 mile zone when she started to pull around the truck and that she was “just too close to get around him” was an admission that she was operating the automobile at an excessive rate of speed in violation of Art. 827a, § 8, Vernon’s Ann.Penal Code, and was following appellee’s truck too closely in violation of Sec. 61(a), Art. 6701d, Vernon’s Ann.Civil Statutes, both of which are penal statutes, the violation of which constituted not merely evidence of negligence but negligence per se. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 590.

There was offered in evidence ánd considered by the Trial Court appellant’s first amended petition which contained the following allegations:

“Since Joyce McCormick was seriously, painfully and permanently injured by the negligence of Lou Anne Keller and also by the negligence of Sammie Ray Reid for whose negligence Stowe Lumber Co. is legally responsible, this suit is brought against such defendants for $50,000.00 damages.”
“6. The injuries and damages suffered by plaintiff were directly and proximately caused by the negligence of Lou Anne Keller, and also by the negligence of Sammie Ray Reid for whose negligence defendant Stowe Lumber Co. is legally responsible. At the time and place in question they were guilty of many acts of negligence, each of which jointly and severally proximately caused the serious painful and permanent injuries and damages suffered by plaintiff.”

The foregoing allegations constituted judicial admissions which are conclusive against appellant. Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515, 516; 24 Tex.Jur.2d Sec. 631; 33 Tex.Jur. Sec. 191. Appellant thus admitted that the injuries and dám-ages suffered by her were directly and proximately caused by the negligence of Lou Anne Keller.

The admissions of negligence by Lou Anne Keller to officer Headrick, coupled with the judicial admission contained in appellant’s pleading, constituted sufficient evidence for the Trial Court to find as a matter of law that Lou Anne Keller was guilty of negligence which was the proximate cause of the collision and since appellant and Lou Anne Keller were engaged upon a joint enterprise, the negligence of Lou Anne Keller is imputed to appellant as a matter of law.

But appellant contends that the Court could not consider the allegations of negligence in her first amended original petition quoted supra for the reason that by filing her second amended original petition on March 20, 1961, while the Trial Court had the motion for summary judgment under advisement, the first amended original petition constituted an “abandoned” pleading and as a result could not constitute a “judicial” admission.

It is the rule of law that pleadings in a particular case for the purpose of use as such are to be regarded as judicial admissions but it is also the rule that when a pleading has been abandoned, superseded, or amended, it ceases to be a “judicial” admission. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729. The only material difference between the allegations contained in the appellant’s second amended original petition from those in her first amended original petition consists in the elimination of the allegations of negligence in the first paragraph quoted supra and the substitution of the following paragraph 6 in lieu of paragraph 6 quoted supra.

“6. The injuries and damages suf- • fered by Joyce McCormick Edmond-son were directly and proximately caused by the negligence of Sammie ■Ráy' Reid for whose negligence de-■'■féndant Stowe Lumber Company is legally responsible. In the alternative, plaintiffs allege that such injuries and damages were directly and proximately caused by the negligence of Lou Anne Keller, or both. At the time and place in question, one or the other or both were guilty of many acts of negligence, each of which jointly and severally proximately caused the serious, painful and permanent injuries and damages suffered by plaintiff, Joyce McCormick Edmondson.” (Italics supplied.)

In other words, instead of alleging joint negligence on the part of appellee’s driver and Lou Anne Keller, as in the first amended petition, appellant alleged the negligence of Lou Anne Keller in the alternative and then alleged joint and several acts of negligence on the part of each defendant. It does not appear from the record that appellant’s second amended original petition was filed under Rule 63, T.R. C.P., but if so, no leave of Court was requested or obtained for its filing as required by that rule. If the second amended original petition was filed as a trial amendment under Rule 65, it docs not appear from the record that leave of Court was first requested or obtained as required therein.

However, it is apparent from the record that the Trial Court did not and could not consider the allegations in appellant’s second amended original petition since in summary judgment proceedings the Trial Court in hearing the motion could only decide from the record which was then be fore him whether or not any genuine issue of material fact was presented and whether or not as a matter of law the movant was entitled to judgment. Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683, 685, no writ history; Oaxaca v. Lowman, Tex.Civ.App., 297 S.W.2d 729, 732, error ref., N.R.E.; Green v. Smart, Tex.Civ.App., 333 S.W.2d 880, 885, no writ history; Hurley v. Knox, Tex.Civ.App., 244 S.W.2d 557, 559, error ref., N.R.E.

Treating appellant’s first amended original petition as an “abandoned” pleading, which it is not, even then the quoted allegations contained therein are properly admissible in evidence as admissions although not conclusively binding upon the appellant since they no longer constitute “judicial” admissions. Kirk v. Head, supra. Such pleading was therefore admissible in evidence as an “admission” under the provisions of Rule 166-A, T.R.C.P.

In Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555, 558, error ref., N.R.E., which was a summary judgment proceeding, an “abandoned” pleading was offered in evidence at the hearing upon the motion. After stating the rule concerning judicial admissions and admissions in abandoned pleadings set forth in Kirk v. Head, supra, the Court held:

“The abandoned pleadings, when introduced upon the hearing on said motion, had the same legal effect as if appellant had personally admitted upon the hearing the matter set forth in said admissions. It is true that he was entitled to deny or explain the admissions contained in said abandoned pleadings. But he did nothing whatever to deny the truth of said admissions, by affidavit or otherwise. We do not understand that appellant contends that his new pleadings, which superseded his abandoned pleadings, could be taken as evidence to support themselves. The effect of said admissions in said abandoned pleadings was to make out a prima facie case that the deeds constituted a fraudulent conveyance of the lands involved. * * * Consequently, it seems inescapable that in the state of the record the court had no alternative but to conclude as a matter of law upon the hearing on the motion for summary judgment that the conveyances were fraudulent.”

Therefore conceding arguendo that the admissions contained in appellant’s first amended original petition was in an “abandoned” pleading, under the holding in Lesikar v. Lesikar, the Trial Court had no alternative hut to conclude as a matter of law upon the hearing on the motion for summary judgment that Lou Anne Keller was guilty of negligence which proximately caused the collision since appellant did not deny the truth of such admissions by affidavit or otherwise.

Appellant cites Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233, and Hammett v. Fleming, Tex.Civ.App., 324 S.W.2d 70, error ref., N.R.E., in support of her contention that in summary judgment cases while the Trial Court will normally look to the pleadings to determine the issues in the case, yet when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the movant insupportable under the substantive law, it cannot be said that the movant has established his right to judgment as a matter of law and therefore summary judgment should be denied regardless of defects which may exist in the pleadings.

The question as to admissibility of admissions, judicial or otherwise, in pleadings of the opposite party presented here was not before the Court in either of these cases. In the instant case the depositions and affidavits considered by the Court did not disclose any fact which would show that an amendment to the pleadings of appellant would render appellee’s position insupportable under the substantive law. Since neither of the cited cases supports appellant’s contention, appellant’s second point of error is overruled.

The judgment of the Trial Court is in all things affirmed.

ARCHER, Chief Justice

(concurring).

I concur in the judgment in this case but I disavow any purpose to create or the creation of a “judicial monster” or even a “catch penny contrivance” in the decision by the majority of this Court in this case, but that the judgment of the Trial Court was believed to be a correct one.

This explanation is written because of statements made in a dissenting opinion. The Legislature enacted the Summary Judgment Statute and it is its responsibility to repeal it if it is so obnoxious as to become a device to trap the unwary.

If one’s logic and reasons are valid, there is no need to decide the question by sharp words or insinuations with respect to the trial of a case, or a review of such case on appeal.

HUGHES, Justice

(dissenting).

The majority opinion herein completely stuns my sense of justice. It does these things:

(1) It obliterates the first rule of rules of civil procedure which provides that, “The proper objective of rules of civil procedure [are] to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”

(2) It violates Rule 90 which says that “general demurrers shall not be used.”

(3) It denies the right of amendment guaranteed by Rule 63.

(4) It denies application of Rule 65 which provides that an amended pleading takes the place of the pleading it amends.

(5) It denies the right to plead alternatively, guaranteed by Rule 48.

(6) It holds that the filing of a motion for summary judgment under Rule 166-A cuts off the right of the adverse party to amend his pleadings.

(7) It holds that even though the right to summary judgment turns solely on the pleadings, the right of amendment does not exist.

(8) It holds that an admission in an abandoned pleading, even though unsworn and based wholly on hearsay is conclusive of the facts pleaded as against the pleader.

(9) It holds that inconclusive evidence of fact witnesses becomes conclusive by the admission of a pleader in an abandoned pleading which was unsworn and based wholly on hearsay.

(10) It holds that an admission in an abandoned unsworn pleading based on hearsay becomes conclusive on the pleader even though not offered or admitted in evidence.

(11) It flies in the face of authority.

I had thought the general demurrer was abolished. The majority not only resurrects it, but restores it in a more virulent form than it ever had when it was a respectable pleading. Even under the general demurrer practice, a suit could not be dismissed upon the demurrer being sustained without the affected party being afforded an opportunity of amendment. Pleading, Sec. 51, 33 Tex.Jur.; Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821.

The summary judgment, as to the state of the pleadings was in the nature of an exception. McDonald, Texas Civil Practice, Secs. 17.26, 17.26.3.

When it became apparent to the Court that his ruling would be based on the state of the pleadings, an opportunity to amend should have been afforded. I quote from McDonald, Texas Civil Practice, 1960 Cumulative Supplement, Sec. 17.26.3, p. 41:

“But if the hearing upon the motion for summary judgment uncovers a defect in the opponent’s pleading which can be amended, it is error to grant the summary judgment on the pleading without affording the opportunity to amend.
“On defendant’s motion for summary judgment based solely on the pleadings, the court should have before it the pleading on which the plaintiff, after amending to meet any special exceptions, is prepared to stand. The court should rule upon any special exceptions stated in defendant’s answer before acting upon the motion, and should afford the plaintiff the opportunity to amend.”

Cited in support of this statement are Andrews v. Austin Motor Truck Co., 259 S.W.2d 772, by this Court, and Akin Products Co. v. Bush, 319 S.W.2d 404, Fort Worth Civil Appeals, writ ref., N.R.E. To these authorities there should be added Hammett v. Fleming, 324 S.W.2d 70, Austin Civil Appeals, writ ref., N.R.E.; Wilson v. Mitchell, 299 S.W.2d 406, Dallas Civil Appeals, and Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233. I quote from the opinion of Justice Walker in the Supreme Court case:

“Under the provisions of Rule 166— A, Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court will normally look to the pleadings to determine the issues that may exist in the case, but when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party insupportable under the substantive law, it cannot be said that the latter has established his right to judgment as a matter of law. As stated in Rossiter v. Vogel, 2 Cir., 134 F.2d 908, 912, ‘* * * where facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of final judgment. * * * ’ We hold, therefore, that when the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party.”

The majority relies upon Lesikar v. Lesikar, 251 S.W. 555, Galveston Civil Appeals, writ ref., N.R.E. That is not a parallel case. That was a summary judgment case in which, on the hearing, an admission made by a party in an abandoned pleading was introduced in evidence, and the record did not make this admission issuable. The abandoned pleading here was not introduced in evidence and appellant was not called upon to explain or refute it. In fact, she was powerless to do either. The admission of appellant, based on facts of which she had no personal knowledge, was made issuable, as the majority apparently concedes, by the depositions on file. Appellant could not add to nor detract from them. See Rule 166-A(f). There was no comparable situation in Lesikar.

In Whitaker v. Coleman, 5 Cir., 115 F.2d 305, Judge Hutcheson had this to say about summary judgments:

“Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in ad-vanee of trial by inquiring and determining whether such evidence exists.”

The majority here creates more than a “catch penny contrivance.” It creates a judicial monster from whose clutches there is no escape.

I respectfully dissent. I would reverse and remand this cause.

      . All Rule references are to Texas Rules of Civil Procedure.

      . By “hearsay”, I mean facts not ■within the knowledge of the party and as to which she could not testify. See Sec. (e), Rule 166-A.

      . The Court does not hold that proximate cause as related to the negligence of Lou Anne Keller was shown as a matter of law by the evidence. Only by reliance upon tlie admission in the abandoned pleading is this result reached.


author: McNEILL, Justice.

text:
    Cheatom GORDON et ux., Appellants, v. Budge LEVIAS, Appellee.
    No. 6525.
    Court of Civil Appeals of Texas. Beaumont.
    March 29, 1962.
    Rehearing Denied April 25, 1962.

      Sample <& Walker, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   McNEILL, Justice.

Appellants Gordon and wife brought suit against one Fred Hardy, East Texas Pulp & Paper Company, and appellee Budge Levias for damages on account of personal injuries sustained by appellants in a collision between two trucks that took place on State Highway 92 about two miles north of Silsbee on January 7, 1959. Both trucks at the time of and immediately before the accident were traveling south on said highway. One was a pickup truck driven by appellant Gordon in which his wife and another person were riding. This truck was followed by the other truck driven by appel-lee and loaded with pulp wood. The accident happened as the driver of the pickup truck was attempting to turn his truck to the left into an adjoining road, and the driver of the pulpwood truck was endeavoring to pass the pickup. Plea of privilege was sustained in behalf of the defendants Fred Hardy and East Texas Pulp & Paper Company, transferring the cause of action as against them to Jasper County, and the cause proceeded to trial in the Hardin County District Court against appellee Levias, alone.

The jury found in favor of appellee, a colored man, with reference to all alleged acts of primary negligence and convicted appellant Gordon of contributory negligence in the following respects: (1) in failing to keep a proper lookout for vehicles overtaking him from the rear; (2) in failing to give the statutory continuous signal of his intention to turn to his left at the intersection; and (3) in turning to the left at a time when such movement could not be made in safety, each of which was found to have been a proximate cause of the collision. Upon this verdict, judgment was rendered for appellee, and this appeal complains thereof.

After practically all of the evidence was heard, counsel for appellants stated that he desired to read from appellee’s deposition. Appellants’ second point is that the trial court forced appellants’ counsel to read unresponsive matters contained in this deposition which were to the effect that, after the investigating' officers had been told by others how the accident happened, appellee had been allowed to leave the scene of the collision without arrest. Their first point urges that the trial court erred in failing to sustain their objection to comment made by appellee’s counsel in his argument upon the fact that the officers had allowed appellee to leave the scene of the accident. In order to understand the points, the following excerpts of appellee’s deposition are quoted:

“MR. SAMPLE: Then I want to read from his deposition, Page 35:
“Q. And when you saw him start across the highway you started to pull around him, is that right? A. Yes, sir, that’s right.
“Q. Well, • didn’t you think there was going to be a wreck when that happened? A. Yes, I got scared just like I went to whooping and hollering, but if I hadn’t hit my brakes I would have; run just right dead straight behind, but when I started around it didn’t do no good to go around. I just kept trying to go around him but I couldn’t miss him.
“MR. TUCKER: Let’s read the rest of it. Your Honor, he stopped without reading the entire answer. I think out of fairness he ought to go ahead and read it and not just part of the answer.
“THE COURT: You’ll have to read the completed answer.
“MR. SAMPLE: I didn’t intend to do anything else, Your Honor. I’m trying to read — It was just unavoidable and I couldn’t get around him.
“Q. Well, that answers my question. You- say you were scared and you - were going to have an accident, is that right? A. Oh, yes, sir.
“Q. And how far were you from the truck when you realized you were going to have a collision? A. Oh, I wasn’t over thirty or forty feet.
“Q. All right. Then how far did the truck travel after the collision? A. Oh, it run, I guess, forty or fifty feet.
“Q. In other words, you’re saying you figure about seventy feet is all your truck travelled after you realized you were going to have an accident? A. Yes, sir.
“Q. Is that what you told Mr. Tarver? A. Yes, sir. That’s what I told him.
“Q. —and so on — .
“MR. TUCKER: Now, once again, Your Honor, that’s not the complete answer.
“THE COURT: You’ll have to read the completed answer; you can’t break the answer into parts. You can select the question and answer, but you must read all of each.
“MR. SAMPLE: I understand that, Your Honor.
' “THE COURT: Read it then.
“A. (From deposition) Yes, sir. That’s what I told him, but I didn’t have to tell him too much of nothing becaitse them other people that seen it, that fellow that seen it, he testified ; he just told just exactly how it was, and then the other people that was there so he just listended to what they said and he told me to go ahead on.”

Appellants did not object to the requirement of the court that the full answer in each instance be read, nor was there a later request that the- jury be instructed not to consider any part of either answer. In his address to the jury, appellee’s counsel made the following argument:

“You all heard the evidence about how Mr. Grady Tarver and Mr. Moore and even Sheriff Whitaker came out there and made an investigation and then told Budge Levias to go on. Don’t you know that if Budge Levias had done anything wrong, or if there was any way in the world he could have avoided this accident, they would not have let him go on about his business ?”

Objection was promptly made by appellants’ counsel to this argument, because it was an improper inference prejudicial to appellants’ case, not justified by the facts, and designed to bring to the attention of the jury matters which were not proper for their consideration by an improper and unwarranted inference. Upon this objection being made, the Court stated that the matters in question were in evidence and were properly to be commented upon by counsel, and overruled the objection.

Since appellants offered the testimony complained of in evidence themselves, without objection or request for limitation thereon at all, we think the matter complained of in their Bill of Exceptions to said argument is without merit. It was not shown that the trial court knew what the full answer in either case was, but when it was called to his attention that appellee’s complete answer had not been read, he stated that while appellants were not required to offer any question and answer, having offered the question and part of the answer they would be required to offer the entire answer. When so instructed, appellants did not call the Court’s attention to any part of the answer they deemed improper, and in view of the record made, they must be held to have acquiesced therein. The evidence that the officers told ap-pellee “to go ahead on” having been so introduced, it was proper for appellee’s counsel to comment thereon in his argument. Snodgrass v. Robertson, Tex.Civ.App., 167 S.W.2d 534; Texas & N. O. R. R. Co. v. Skeen, Tex.Civ.App., 149 S.W.2d 1060.

In any event the matters complained of, we think, could not have materially influenced the jury with reference to its independent findings to the effect that appellant Gordon was himself contributorily negligent in failing to keep a proper lookout, and in turning to the left at a time when such movement could not be made in safety. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277.

Appellants’ 3rd point complains that Special Issue No. 13 was a comment on the weight of the evidence. This issue inquired whether appellant Gordon failed to keep a proper lookout “for vehicles overtaking him from the rear.” It is urged under this point that the court, in effect, instructed the jury that it was the plaintiff’s duty to keep a proper lookout for vehicles overtaking him from the rear and does not take into account his duty to keep a lookout for vehicles coming toward him or from either side. The issue is not subject to the complaint made.

The 4th point urges that the 13th Issue assumed that appellee’s vehicle was overtaking appellants’ vehicle from the rear. Under the undisputed facts it was shown that both cars were traveling in the same direction, and that appellant Gordon himself stated that at the time he started to turn his truck to the left the other truck must have been right on him. The point shows no error.

Special Issue No. 15 submitted the question whether appellant Gordon failed to give a continuous signal of his intention to turn to the left for the last 100 feet traveled before turning. The 5th and 6th points, which complain of the 15th issue, become immaterial in view of our holding as to the 7th point. The 7th point complains of Special Issue No. 16, which inquired whether the “failure of Cheatom Gordon to give a continuous signal of his intention to turn for the last 100 feet traveled before turning was a proximate cause of the collision in question.” It is urged that this issue is upon the weight of the evidence in that it has the effect of informing the jury that Gordon had failed to give such a signal. This issue immediately followed Issue No. 15 and was submitted unconditionally. The issue did not contain the qualification usually carried “if any” and after the word “failure”. We have concluded that the issue as submitted is objectionable. Cannady v. Martin, Tex.Civ. App., 69 S.W.2d 434; Atkins v. Dodds, Tex.Civ.App., 121 S.W.2d 1010. See Hodges, Special Issue Submission in Texas, p. 22.

There is, however, no connection between the duty of a motorist to give a proper signal before turning and his duty to keep a proper lookout for vehicles that may be affected by the turn, nor with his duty to see that the turn may be made safely as provided in Art. 6701d, Sec. 68(a), Vernon’s Ann.Tex.St. The jury in answering the issues involving a proper lookout, and whether the turn may be made safely, were not, in our judgment, influenced by the court’s failure to submit the 16th issue conditionally. In these circumstances, the error of the court in the submission of Issue No. 16 unconditionally should not cause reversal. Mason v. Yellow Cab, etc., Co., 153 Tex. 344, 269 S.W.2d 329.

Special Issue No. 18 is:

“Do you find from a preponderance of the evidence that on the occasion in question Cheatom Gordon turned to the left at a time when such movement could not be made in safety ?” The jury answered “We do”.

Appellants’ 8th point asserts that said issue constitutes a global submission without being directed to any particular point of dispute in the case. The issue was evidently given on the basis of Sec. 68(a) of Art. 6701d, which provides that no vehicle shall turn “from a direct course or move ■right • or left upon a roadway unless and until such movement can be made with safety.” We held in Manley v. Wilson, Tex.Civ.App., 313 S.W.2d 339, that an issue using substantially the same language should have been given. Gordon testified that he had been driving right close to the center line of the highway all the way, and that when he was hit by the other truck the rear wheels of his truck were on the center white mark. There being, therefore, but one turn involved, the objection is not tenable.

Conditioned upon an affirmative answer to Issue 18, Special Issue 19 was required to be answered. This issue reads:

“Do you find from a preponderance of the evidence that an ordinarily prudent person under the same or similar circumstances would not have turned at a time when such movement could not be made in safety?” Answer: “We do.”

Objection was made to the giving of this issue for the reason that it was not predicated upon a prior finding by the jury that the plaintiff knew or in the exercise of ordinary care should have known that the pulpwood truck was attempting to pass, and therefore assumed that Gordon knew or should have known that the pulpwood truck was attempting to pass or was so close as to constitute an immediate hazard. Sec. 68(a) provides that no turn shall be made unless and itntil such movement can be made with safety. The accident happened in day time, the weather was clear and the highway straight. Issue 19 applied the test of an ordinary prudent man to appellant Gordon’s conduct in his situation. We think this a sufficient guide under the circumstances shown. However, as used in connection with the common law test, we are not to be understood as approving the concluding language of this issue “when such movement could not be made in safety.” That question is not before us.

The 10th point asserts that the court erred in submitting Issue No. 18 because the same contained no definition of the term “when such movement could not be made in safety.” In order to complain of failure to define a legal term, the burden is on complainant to submit a proper definition thereof. Rule 279, Texas Rules of Civil Procedure. No definition was tendered by appellants; therefore the point is without merit.

What we have said with reference to Points 8, 9, and 10 sufficiently disposes of appellants’ 11th point.

The judgment is affirmed.


author: COLLINGS, Justice.

text:
    LUMBERMEN’S MUTUAL CASUALTY COMPANY et al., Appellants, v. Jefferson C. MEADE, Appellee.
    No. 3685.
    Court of Civil Appeals of Texas. Eastland.
    March 23, 1962.
    King, Willoughby & Vletas, Abilene, for appellants.
    Bradbury, Tippen & Brown, Abilene, for appellee.
   COLLINGS, Justice.

Great Central Insurance Company and Lumbermen’s Mutual Casualty Company brought suit against Jefferson C. Meade for the recovery of $3,061.96, the amount of money alleged to have been wrongfully taken and withheld by the defendant. Great Central Insurance Company was the employer of the defendant who was an insurance selling agent for said company. Lumbermen’s Mutual Casualty Company was the bonding company insuring Great Central Insurance Company for all forms of risk involving wrongful taking of premiums or money by agents or employees of said insurance company. The defendant Jefferson C. Meade invoked the provisions of Vernon’s Texas Rules of Civil Procedure, Rule 266 and admitted that the plaintiffs would be entitled to a combined judgment of $3,061.96 unless their right was defeated because of the allegations set out in his answer and cross action. Meade alleged that his indebtedness to the plaintiffs did not constitute a shortage but represented premiums collected by him for his employer insurance company for the current month being the month that his relationship with the company terminated. He further alleged that by reason of an agreement existing between himself and his former employer that he was entitled to recover for services and expenses a total sum of $6,600.00 and sought judgment therefor. In the alternative Meade sought to recover for such services and expenses on the theory of quantum meruit. The case was tried before a jury which (1) found the existence of an agreement between plaintiff Great Central Insurance Company and the defendant Meade whereby Meade was to investigate and settle claims for said plaintiff, (2) that under the agreement Meade was to be compensated for expenses, rent and personal services for investigating and settling such claims, (3) that from about May 1, 1953, until November, 1957, Meade rendered Great Central Insurance Company services investigating and settling claims, (4) that plaintiff insurance company accepted the benefit of such services and (5) that the reasonable value of such services and expenses incurred was $6,600.00. Based upon the verdict, judgment was rendered in favor of Jefferson C. Meade against Great Central Insurance Company for the sum of $3,538.04, which represents the excess over the amount that the defendant Meade was indebted to said plaintiff. Lumbermen’s Mutual Casualty Company and Great Central Insurance Company have appealed.

It is contended by appellants that (1) the court erred in overruling their motion for judgment notwithstanding the verdict, (2) that the verdict is contrary to the- evidence in that the undisputed evidence shows that appellant Great Central Insurance Company did not either expressly or impliedly authorize any of its agents or employees to reimburse Meade for any agency expenses, nor did it grant them authority to enter into any new agency agreement with Meade, (3) that the court erred in submitting issue Number 2 and all other issues to the jury because the evidence shows there was no written amendment to the original agency agreement between appellant insurance company and Jefferson C. Meade, and particularly shows that no such written agreement was made by any proper authority of the insurance company, (4) that special issue number 5 should not have been submitted because it is not supported by evidence; that all evidence bearing on the amount of expenses of defendant Meade was self-serving, vague and indefinite, and that a remittitur of $3,600.00 should be made because the jury was influenced by sympathy and prejudice, and (5) that the court erred in entering judgment for interest in the amount of $742.98 because interest is not a proper item of damages in view of the fact that appellee Meade did not specifically plead that interest be awarded and that the sum in controversy was definitely an unliquidated sum and interest thereon was improper except from the date of judgment. In our opinion appellants’ points are not well taken. The evidence supports the findings that there was an agreement between appellant Great Central Insurance Company and Meade whereby Meade was to investigate and settle claims for the company and that Meade was to be compensated for his necessary expenses, personal services and for rent.

The evidence is undisputed that appellee Jefferson C. Meade entered into an agreement with Great Central Insurance Company on November 1, 1951, to represent them in a twenty-two county area in the vicinity of Abilene, Texas. The contract was introduced in evidence by appellant, Great Central Insurance Company. Meade’s authority under this agreement was limited to the solicitation of insurance. The relationship of the parties continued under the original contract until the spring of 1953. Prior to that time, when there was a claim against the company, representatives from either McKinney or Austin, Texas, would be sent to handle the matter. When Meade began working for the company there were only a few policyholders in the territory assigned to him and the first month’s collection of premiums was $69.00. Meade built up the business to such an extent that by the time he terminated his relationship with the company in 1957 there were several hundred policyholders and the monthly premiums had increased to approximately $3,000.00. Because of this increase in policyholders and comparable increase in claims and losses it was increasingly expensive and time consuming for the company to send men from McKinney and Austin to the Abilene area to adjust claims.

It is the contention of appellee Meade, and he gave testimony to the effect, that in the spring of 1953, Mr. F. A. Wilder, the state representative of appellant Great Central Insurance Company, who had commenced negotiations with appellee for his employment in 1951, again contacted ap-pellee concerning whether or not he would settle claims up to $50.00. It is undisputed that at all times relevant hereto Wilder was State Sales Director for appellant insurance company. Wilder, as a witness for appellant insurance company, so testified. The evidence shows that Meade agreed to the suggestion that he should settle such •claims and shortly thereafter the home office of the insurance company sent him authority to settle claims including instructions concerning how to handle claims and bank drafts to be used in payment thereof .and agreed to reimburse him for necessary expenses incurred. Meade’s testimony was to the effect that his authority to settle ■claims for the company was later increased permitting him to settle claims up to $100.-00. Following Meade’s conversation with Mr. Wilder concerning the settling of claims Meade had a letter from the company about the matter. Meade indicated uncertainty concerning the representative of the company from whom the letter came but said that he presumed it was from Mr. Stout, the chief underwriter or chief claim adjuster in the home office.

Meade testified that he received a new contract from the company; that it was just like the first one except that it had an additional paragraph providing for additional duties of settling claims and paying them and allowing him additional pay for services rendered and reimbursement for expenses incurred. Meade stated that he signed the contract and sent it back to the company; that he did not have the contract or a copy of it in his possession; that when he was checked out by the company he turned all his records and papers over to the company and that nothing was ever returned to him; that he did not have and had never received a copy of his first contract with the company.

After these things had transpired, Meade purchased additional equipment, prepared a room in his home as an office, expended $30.00 to $60.00 a month on long distance telephone calls, did extra travel by motor vehicle and spent time in settling claims which otherwise he could and would have used in selling insurance. Meade stated that the new contract between him and appellant company was entered into in April or May of 1953; that such contract was like the one in 1951 with the added provision relative to settling claims and provided that Meade should be reimbursed for actual expenses plus the reasonable value of the time he used in adjusting and settling claims.

G. A. Hartnett, another witness for appellant, testified that he was an employee of the Great Central Insurance Company; that he had been with the company since 1946 and was head of the burglary claim department. He stated that he was authorized to grant “draft authority” to agents for the settlement of claims; that on request from the State Sales Manager and Regional Manager, asking that an agent be granted draft authority, he would send a letter to the agent involved, stating the amount of his draft authority and accompany the letter with instructions about how to prepare drafts. Hartnett stated that he sent such a letter to appellee, Jefferson C. Meade, in 1953. Hartnett further testified, however, that the agency agreement between the company and Meade, dated November 1, 1951, was never amended to permit Meade the right to be reimbursed for his agency expenses.

The jury found and the evidence shows, without dispute, that appellant Great Central Insurance Company authorized Meade to settle claims and that Meade, in compliance with such authority, did render personal services and incurred expenses in investigating and settling claims from May 1953 until November of 1957. The jury found and the evidence is also undisputed that the company accepted the benefit of such services and expenses. The controversy involved is whether there is any evidence to show that appellant agreed to compensate Meade for such services and expenses,' and specifically, whether any authorized agent of appellant insurance company, agreed that Meade should be compensated. The jury found that appellant did agree with Meade that he should be compensated therefor. The evidence in our opinion supports the finding. The circumstances justify the conclusion that the agreement to so compensate Meade was fully authorized by the company. Appellants’ own witness Hartnett testified that he was head of the burglary claim department and was authorized to grant draft authority to agents for settlement of claims. He testified that he sent a letter to Meade in 1953, stating the amount of his draft authority with instructions concerning the settlement of claims and the preparation of drafts. Meade acted upon the agreement which he testified was made and under the authority which Hartnett granted and performed the services contemplated and incurred expenses in connection therewith.

The Great Central Insurance Company accepted the benefit of such services and expenses over an extended time. They were obligated to pay appellee the reasonable value of such services and expenses. Blalack v. Johnson, Tex.Civ.App., 293 S.W. 2d 811; Musick v. Pogue, Tex.Civ.App.,, 330 S.W.2d 696 (Ref. N.R.E.); Johnson Aircrafts, Inc., v. Eichholtz, Tex.Civ.App., 194 S.W.2d 815. The facts and circumstances shown, in our opinion, also constitute evidence that there was an authorized written agreement to compensate Meade for such services and expenses.

There was ample evidence to support the finding of the jury that the reasonable value of the services rendered and expenses incurred by Meade in this connection was $6,600.00. The court did not err in submitting special issue number 5 to the jury.

We also overrule appellants’ point urging that the court erred in entering judgment in favor of Meade for interest eo nomine. Art. 5070 V.A.T.C.S.

The judgment is affirmed.