author: STEPHENSON, Justice.

text:
    CITY OF BEAUMONT, Appellant, v. Mary Ruby GRAHAM et al., Appellees.
    No. 6939.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 28, 1967.
    Rehearing Denied Jan. 24, 1968.

      Benckenstein & Norvell, Beaumont, for appellant.
    Ernest Sample, Orgain, Bell & Tucker, Fred Carver, Beaumont, for appellees.
   STEPHENSON, Justice.

This is an action for damages resulting from the death of James Columbus Graham, Jr., who was fatally injured when he fell in an elevated water storage tank belonging to the City of Beaumont. Plaintiffs are the surviving wife and children of the deceased. Defendant, City of Beaumont, sought indemnity and contribution from Texas Tower and Construction Company, who was Graham’s employer. Texas Tower and Construction Campany had a contract with the City of Beaumont to make certain repairs to the water tank, and was so engaged at the time of this fatal accident. Trial was by jury, and judgment was rendered for plaintiffs against defendant, City of Beaumont, and also that City of Beaumont recover nothing against the third party defendant. The parties will be referred to here as they were in the trial court.

Plaintiff, in their petition, alleged that deceased was a business invitee while engaged in performing work on the water tank, and that defendant, City of Beaumont, was negligent in many respects proximately causing Graham’s death. The jury found: That the failure of defendant, City of Beaumont, to have the anchor plates or bracket assemblies enlarged and secured prior to the commencement of the sandblasting operations was negligence and a proximate cause of the fatal injuries; that the wall of the water tank had become so deteriorated at the place where the bracket assembly pulled through, as to constitute a dangerous condition, which defendant, City of Beaumont, could have discovered in the exercise of ordinary care, and failed to warn the deceased of the condition which was negligence and a proximate cause of the fatal injuries; that defendant, City of Beaumont, failed to have a safety grating installed which was negligence and a proximate cause of the fatal injuries; that defendant, City of Beaumont, failed to make a proper inspection of the bracket assemblies and tie-down rods prior to the commencement of the sandblasting, which was negligence and a proximate cause of the fatal injuries; that defendant, City of Beaumont, failed to adopt a periodic and systematic program of inspection of this water tank, which was negligence and a proximate cause of the fatal injuries; that the repair and replacement of such bracket assemblies was omitted from the original contract between the City of Beaumont and Texas Tower and Construction Company; that the condition of such bracket assemblies rendered the tank unsafe for the performance of the work under such contract; that the City of Beaumont failed to examine, inspect and report the condition of such bracket assemblies which was negligence and a proximate cause of the fatal injuries; and that defendant, City of Beaumont, failed to exercise ordinary care to provide a reasonably safe structure for the performance of the work to be covered by the contract, which was negligence and a proximate cause of the fatal injuries. The jury answered in the negative an issue asking if the defendant, City of Beaumont, did not have the right to control Texas Tower and Construction Company in the details to be performed in the repair of the water tank.

There are certain general principles of law which must be kept in mind while considering this case. An occupier of premises is required to keep his premises in a reasonably safe condition for his invitees. When a danger is not open and obvious, the occupier owes a duty to the invitee to warn the invitee of the danger, if the occupier knows about it or in the exercise of ordinary care should know about the danger. There is a duty on the occupier to inspect and discover dangerous conditions. Halepeska v. Callihan Interests, Inc. (Tex.) 371 S.W.2d 368.

Defendant, City of Beaumont’s, first series of points are that there was no evidence to support the findings of the jury that such defendant committed certain acts, or failed to act in certain ways, which constituted negligence and were each a proximate cause of the fatal injuries to James Columbus Graham, Jr. Passing upon these points, the court considers only the evidence favorable to such findings. It appears to this court that one of the primary set of issues upon which the judgment of the trial court is based was that the wall of the water tank had become so deteriorated at the place where the bracket assembly pulled through as to constitute a dangerous condition, which defendant, City of Beaumont, could have discovered in the exercise of ordinary care, and failed to warn the deceased of such condition which was negligence and a proximate cause of the fatal injuries.

The fatal fall made the basis of this suit was inside the bowl of a 500,000 gallon steel water storage tank located on Pine Street in the City of Beaumont. Deceased was employed by defendant, Texas Tower and Construction Company, as a painter, which classification included both painting and sandblasting work. He was not employed to replace the spider rods as that work would be done by a separate craft. The deceased was engaged in a sandblasting operation on the interior of this tank at the time of his fall. This operation was performed by starting at the top of the bowl and sandblasting a strip of the wall from the top of the bowl to the bottom. The deceased would sit in a bosun chair which was suspended by a rope and would let himself down toward the bottom of the bowl as he sandblasted the section of the strip he was doing. As a strip was completed at the bottom of the bowl, the equipment would be moved over and a new start would be made at the top of the bowl. There were steel rods called tie rods or spider rods which were attached to the center of the bowl and which ran parallel to the ground to the sides of the bowl where they were attached to the sides by brackets. These rods were located near the top of the bowl and were used in this sandblasting operation to support boards upon which deceased would lie as he moved his equipment from one spot to another in beginning a new strip. When a strip was completed, deceased would climb back to the top of the bowl by ladder, and a second workman would pull the bosun chair back up to the top of the bowl by rope, so it could be moved to another location. A strip had just been completed and deceased had crawled back up the ladder and the second workman had pulled the bosun chair up to the top when the fall occurred. The deceased was off of the ladder but had not had time to move the rigging and get back into the bosun chair at the time of the fall. The deceased fell about 40 feet to the bottom of the bowl and then down into a large pipe, called a riser, connecting the bowl with the ground. Deceased then fell almost 100 feet inside the riser to near the ground.

The evidence also showed: that the deceased suffered his fall because the wall of the water tank collapsed allowing one of the brackets to pull through; that this bracket was at the end of one of the tie rods upon which the board or boards was or were lying. The wall of the tank was about a quarter of an inch thick at the spot it had pulled through. The thinning of the wall had been caused by rust and corrosion. The wall of the tank should have been tested by tapping on it with a hammer. This would have revealed soft spots or weak spots. Weak spots would have a dead sound, as solid steel would have a ring. Another better way to test the walls would be to drill holes and measure it to see how thick it is. It was admitted that no warning was given to the deceased or his employer, that there was any danger of the bracket pulling through the wall of the tank because of the deteriorated condition. It is also admitted that the condition causing this fatal fall was not “open and obvious.”

The records show the water tank in question was constructed in 1923 and was, therefore, about 40 years old at the time of this fall. The roof of the tank may have been replaced in 1938 or 1939, but there is no record of it in the City files. This work may have included the spider rods or part of them. There was no evidence that the brackets had ever been replaced. In 1954, some wire brushing, chipping and handscraping was done and the interior of the tank was painted. There is no record in the files of the City of any inspection being made of the tank from 1954 to 1961. In 1961, Johnny R. Allen had been doing other work for the City and made an inspection of the tank, for which he was not paid. This report is dated August 11, 1961, and is signed “Allen’s Tower Service, Johnny R. Allen.” No work was done at that time. In 1963 the City contacted John Allen and requested to make an inspection of this tower, and April 4th, 1963 a written report was made to the City signed “All Towers, Inc., Johnny R. Allen, President.” Bids were taken on work to be performed on this tank, and on July 17, 1963 a contract was executed between the City of Beaumont and Texas Tower and Construction, Inc., signed by its President, John R. Allen. John R. Allen testified as a witness in this case: That the thing that caused this accident was a hidden thing; that the brackets and the bolts attaching them were covered, the inside being coated with grease and the outside by paint; that the bracket looked good; the wall of the tank was weakened by oxidation even though you couldn’t see it.

The wall of the tank was rotten and there is no way of telling that, your rust builds up, this was before the tank was cleaned. You have got a coat of rust in some spots an inch thick, corrosion and other forms of matter, and there is no way to tell by looking at one of them if it is faulty or not but the brackets themselves were not faulty.
There was a pretty good coat of paint on the outside and you couldn’t tell whether it was oxidized or not underneath.

All of this evidence supported the findings of the jury that the condition of the wall of the water tank was dangerous, which condition could have been discovered by the defendant of the City of Beaumont in the exercise of ordinary care, and that the failure to warn the deceased of such condition was negligence and a proximate cause of the fatal injuries. The no-evidence points are overruled as to these findings of the jury.

Defendant, City of Beaumont, had points of error that the findings of the jury mentioned above were against the great weight and preponderance of the evidence and that the evidence was insufficient to support such findings. In passing upon these points, we considered the entire record. There is evidence in the record contrary to that set forth above, but such evidence did no more than raise questions of fact for the jury, which the jury determined adversely to this defendant. These findings are not clearly wrong or manifestly unjust and the points of error are overruled.

Defendant, City of Beaumont, has points of error that there is no evidence to support a finding of the jury that the fatal fall was not caused by transitory conditions arising out of the work contracted to be performed by defendant, Texas Towers and Construction Company, and also that the defect that caused the fatal accident was a defect contracted to be repaired by such defendant. The case of Wood v. Kane Boiler Works, Inc., 150 Tex. 191, 238 S.W.2d 172, 173 is cited as authority for the proposition that the possessor of land owes no duty to protect an independent contractor or his employees from dangers arising from the performance of the work which the contractor was employed to do.

The contract between the City of Beaumont and Texas Towers and Construction Company was admitted in evidence. Such contract provided for the replacement of six support rods and eight spider rods. No mention was made of bracket assemblies or the wall of the tank, except that the interior of the tank should be cleaned, sandblasted and coated with a compound. A change order between the City of Beaumont and Texas Towers and Construction Company dated August 15, 1963, was admitted in evidence for the limited purpose of showing the scope of the contract. This change order was after the fatal fall, and showed the reason for such change was “additional work not called for in the original contract.” This change order included an item to furnish and install 12 tie down bracket assemblies. John R. Allen testified by bill of exception that the decision to replace the bracket assemblies was made after Graham had his accident. He also testified that the replacement of the spider rods would not have prevented this accident, and that the part of the structure that gave way was not even included in the work that was to be performed. This case is distinguishable from the line of cases in which the injured party was present to repair the condition which resulted in the injury, and the cases where the injured party was employed to inspect and repair. Allen testified as follows:

They didn’t ask me for anything but a visual inspection and a visual inspection is what you can tell just by looking at it. If they wanted a general inspection I would have cut out samples of metal and had it tested.

There is no evidence in the record that the reason for this fatal fall, the deterioration of the wall of the tank by rust and corrosion, developed during the performance of the work and as a result of this work being performed. Such condition developed over the 40 year life of such water tank. The evidence supported the findings of the jury and the points of error are overruled.

The jury found that Graham failed to use a safety belt, but that such failure was not negligence. The proximate cause issue was not answered as it was predicated upon an affirmative answer to the negligence issue. Defendant, City of Beaumont, has a point of error that there was no evidence to support the finding of the jury that such failure was not negligence. This defendant argues the deceased knew the condition of the tank because he could see the holes in the roof. It must be remembered that the roof was not constructed with steel as heavy as that used in the walls of the water tank, and that none of the equipment used was attached to the roof. The evidence shows John Allen warned the deceased not to put any weight on the spider rods and to use the brackets for rigging. The evidence further shows that the deceased followed these instructions. The fatal fall occurred not because a spider rod was weak and came in two, but because one of the brackets pulled through the wall of the tank. The evidence also shows the deceased could not see the rust spots. Graham was experienced in tank work as a painter, but was not as an iron worker. There is no evidence that Graham did not use all of the equipment customarily used by workmen doing similar jobs, and there is no evidence that he did not perform his work in the usual and customary manner. This point is overruled.

Defendant, City of Beaumont, has points of error that there was no evidence to support the finding of the jury that plaintiff, Mary Ruby Graham, sustained damages in the amount of $140,000.00 by reason of the death of her husband, that there was insufficient evidence to support such finding, that such finding was contrary to the great weight and preponderance of the evidence and that such amount is excessive. The evidence shows: Graham was 37 years old at the time of his death, with a life expectancy of 35 years. He had fully recovered from his nervous breakdown at the time of his fatal fall and was in good health. He worked regularly, was a good provider with an excellent attb tude of responsibility toward his family. He was a good reliable workman and was secretary of the painter’s local. His pay was $3.87]4 per hour, or $30.00 per day or $150.00 per week, plus time and a half for overtime. This evidence supported the finding of the jury, the finding of the jury was not clearly wrong or manifestly unjust, and such finding was not excessive.

As already stated in this opinion, one defense relied upon by defendant, City of Beaumont, that the defect that caused the fatal accident was a defect contracted to be repaired. Plaintiffs denied this and tendered in evidence the change order dated August 15, 1963. The trial court refused to admit such exhibit in evidence until the close of the testimony at which time it was admitted for the limited purpose of showing the scope of the contract between this defendant and Texas Tower and Construction Company. The jury was instructed not to consider such evidence or the question of negligence. One of the attorneys for plaintiff argued in connection with special issue 20 which inquired as to whether the replacement of the bracket assemblies was omitted from the original contract, and read from such change order. Then this attorney made this argument:

Now did this failure to include it in the original contract, did that contribute to the lack of safety in the structure of this tower? Of course it did, so you must answer this “yes.”

Counsel for defendant, City of Beaumont, objected on the ground that the exhibit was being used for the purpose that the court instructed the jury they could not consider. It is not easy to follow the argument being made by the attorney in reference to the issue he was discussing, but it appears that the argument was not improper, and in any event that no harm was done.

At the close of his argument in connection with one of the damage issues, it was stated:

I just don’t know how you’d measure the value of a life of a man. And I can’t and don’t think any of the other attorneys can come up with any concrete suggestion and that’s why I say its entirely up to you. I know this, we are all taught right from wrong from childhood on, and at this point insofar as money is concerned, I don’t know what’s right and what’s wrong. I guess its — looking at this whole case its a situation that the Golden Rule would apply to. “Do unto others as you would have them do unto you.” I’m not asking you to put yourself in this family’s place — .

The objection was made that the Golden Rule argument “Do unto others as you would have them do unto you” was improper. The trial court overruled this objection. We have concluded there is no reversible error in this argument. The attorney makes it clear that he is not asking this jury to put themselves in this family’s place, but merely to apply the golden rule, which has been interpreted to mean the jury should look with solicitude to the rights of both plaintiff and defendant.

Defendant, City of Beaumont, complains of the actions of the trial court in granting judgment for All Towers, Inc., and in not granting judgment against the City of Beaumont and All Towers, Inc., jointly and severally. The jury found: That the City of Beaumont contracted with All Towers, Inc., that All Towers, Inc. would make an inspection of the water tank; that Johnny R. Allen made the inspection in April 1967 as an officer, agent or employee of All Towers, Inc., and within the scope and course of his employment; that All Towers, Inc. failed to make a proper inspection of the bracket assemblies and tie down rods which was negligence and a proximate cause of the fatal injuries; and that the failure of All Towers, Inc. to recommend the replacement and reinforcement of the tie-down bracket assemblies prior to the commencement of the work was negligence and a proximate cause of the fatal injuries. Plaintiffs had sued All Towers, Inc., as a defendant, and alleged certain acts of negligence as proximately causing the fatal injuries. Defendant, City of Beaumont, did not plead against All Towers, Inc., and did not seek contribution. Plaintiffs permitted the judgment of the trial court in favor of All Towers, Inc. to become final, as no appeal was taken by plaintiffs. Under these circumstances, defendant, City of Beaumont, has no standing in this court to complain of the failure of the trial court to render judgment in favor of plaintiffs against All Towers, Inc.

Defendant, City of Beaumont, contends the trial court erred in rendering judgment that the City of Beaumont recover nothing from Texas Tower and Construction Company. City of Beaumont filed a third party action, alleging that the fatal injury was proximately caused by the negligent acts of this third party defendant, and seeking both indemnity and contribution based upon the contract between these parties. Such contract contained the following provision :

The Contractor agrees to further indemnify and save the City whole and harmless from all costs, expenses, damages, arising out of any real or asserted cause of action and permitting all costs arising from wrongs, injuries, damages that may be occasioned to any person or property or to its employees, arising out of his acts in connection with the construction of the said improvements or occasioned by said Contractor, his agents, servants or employees.

The jury found: That Texas Tower and Construction Company failed to do the work in the order specified in the contract, which was negligence and a proximate cause of the accident made the basis of this suit; that Texas Tower and Construction Company failed to replace the eight spider rods in the interior of the tank before sandblasting the inside of the water tank, which was negligence and a proximate cause of the accident; and that Texas Tower and Construction Company failed to warn James Columbus Graham, Jr. of the condition of the spider rods, which was negligence and a proximate cause of the accident.

Defendant, City of Beaumont, had no claim at common law for indemnity against Texas Tower and Construction Company, so the only basis for its claim must be upon the written contract between these parties. This contract, having been prepared by the City of Beaumont, in case of doubt or ambiguity, must be construed against the City. Also, this contract is one primarily for the accomplishment of work, and the indemnity provision is incidental to the principal objective. We do not find it was the clear intention of the parties to require Texas Tower and Construction Company to indemnify the City of Beaumont for damages arising out of the negligent acts of the city or for damages arising out of the joint negligence of the parties. We hold this case to be controlled by the law expressed in Humble Oil & Refining Co. v. Wilson, Tex.Civ.App., 339 S.W.2d 954.

We find no merit to the remainder of the 124 points of error and they are overruled.

Affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    John D. DEITZ and Ann G. Deitz, Appellants, v. Virgil A. VAUGHN and Robbie D. Vaughn, Appellees.
    No. 4668.
    Court of Civil Appeals of Texas. Waco.
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      Baker, Jordan & Foreman, William Carl Block, Dallas, for appellants.
    Touchstone, Bernays & Johnston, Wade Smith, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs from a judgment sustaining defendants’ plea of limitation, and dismissing plaintiffs’ suit.

Plaintiffs Deitz sued defendants Vaughn on January 18, 1966 for damages arising out of an automobile collision which occurred on January 11, 1964. 'Defendants filed a “Plea of Limitations and Motion to Dismjss” contending plaintiffs’ cause of action had expired prior to the filing of plaintiffs’ suit. Thereafter, plaintiffs filed supplemental pleadings setting forth that defendants had absented themselves from the State of Texas so as to suspend the running of the Statute of Limitations.

The trial court, after hearing, sustained defendants’ plea of limitations and dismissed plaintiffs’ suit with prejudice.

Plaintiffs appeal, contending the trial court erred in dismissing their suit based on the 2 year Statute of Limitations, because defendants had absented themselves from the State, thereby tolling the statute of limitations, and therefore plaintiffs’ suit was not barred by the statute of limitations.

The collision made the basis of suit occurred on January 11, 1964. Plaintiffs Deitz filed the instant case against defendants Vaughn on January 18, 1966, some 7 days after the expiration of 2 years after the collision.

Both plaintiffs Deitz and defendants Vaughn were residents of Texas on January 11, 1964. In June, 1964 the defendants left Texas and took up permanent residence in Florida, where such permanent residence has remained.

Article 5526 Vernon’s Ann.Tex.St. provides that actions for injury to the person or property of another shall be commenced “within two years after the cause of action shall have accrued and not afterward.”

Article 5537 V.A.T.S. provides that absence of the defendant from the state “shall not be accounted or taken as a part of the time” of the limitations period.

Defendants contend that Article 2039a V.A.T.S., which provides that non-residents, or residents at the time of the accrual of a cause of action, but who subsequently remove, appoint the Chairman of the State Highway Commission as their agent for service of process, for actions growing out of a motor vehicle collision, has nullified the tolling of limitations as provided by Article 5537 V.A.T.S.

Thus the sole question presented is whether, in an action for damages growing out of an automobile collision on a highway in Texas, the Statute of Limitations is tolled by the absence from Texas of a defendant who was a resident at the time of the accident, but who subsequently removes from the State, when the plaintiffs could have proceeded under Article 2039a V.A. T.S., which makes the State Highway Department Commission Chairman, the agent of such person for service of process.

In some states the rule is that where provision is made by statute for substituted service of process upon a State official in cases arising out of motor accidents within the State, that such a provision has the effect of nullifying any statute which suspends the period of limitations. 17 A.L.R. 2d 516; 34 Am.Jur., p. 178. But this is not the rule in Texas.

Our Supreme Court, in Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 held “Art. 5537, V.A.C.S., provides that absence of the defendant from the state 'shall not be accounted or taken as a part of time’ of the limitation period. * * * While it has been held that the above article has no application, as a general rule, to nonresidents, * * *, it does apply to nonresidents who were present in the state at the time the cause of action accrued or had its inception and who later leave the state. Gibson v. Nadel, 164 F.2d 970 (5th Cir.1947).”

The foregoing is applicable to the situation here. The collision and cause of action occurred on January 11, 1964. At that time defendants were residents and present in the State of Texas. Subsequently, in June, 1964, the defendants left the State of Texas and moved to Florida and became nonresidents of Texas.

The 2 year Statute of Limitations, Article 5526, V.A.T.S., was thus tolled by Article 5537, V.A.T.S. in the case at bar, and the fact that Article 2039a, V.A.T.S. gave plaintiffs a way to effectuate service of process on defendants, did not negate the operation of Article 5537.

Plaintiffs’ contention is sustained; the judgment is reversed; and the cause remanded for trial on its merits.

Reversed and remanded.


author: DENTON, Chief Justice.

text:
    Donnie LADEHOFF, Appellant, v. Donald LADEHOFF, Appellee.
    No. 7753.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1967.
    Rehearing Denied Dec. 26, 1967.

      Underwood, Wilson, Sutton, Heare & Berry and Jerry F. Lyons, Amarillo, for appellant.
    Lumpkin, Watson & Smith and Deane C. Watson, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a will contest. Donnie Ladehoff filed this suit in the nature of a Bill of Review in which he attacks the judgment probating the will of Louise Ladehoff, deceased. The County Court sustained its prior probate judgment of the will; and upon appeal, the District Court entered a Summary Judgment against appellant, the contestant, on the ground the original probate judgment was final and conclusive of all issues sought to be raised by appellant in this cause.

Louise Ladehoff, deceased, was the wife of appellee, Donald Ladehoff; appellant Donnie Ladehoff, was the natural son of Donald and Louise Ladehoff. Mrs. Lade-hoff died August 17, 1950 and was survived by her husband, an adopted son, Wayne then approximately sixteen years of age; and Donnie, then approximately six years of age. On or about July 23, 1956, a purported handwritten will of Mrs. Ladehoff, deceased, dated June 28, 1949, was discovered in the home. The will sought to bequeath the two sons $500.00 each and the remainder of the estate to her husband. This will was offered for probate on August 23, 1956. On September 1, 1956, Wayne,, having reached his majority, filed his opposition to the probate of the will. A hearing was commenced on February 19, 1957, and postponed until a later date. On April 23, 1957, Wayne appeared in open court and by attorney and announced a settlement and compromise of his controversy and the court dismissed his cause of action “with prejudice”. The application of Donald Ladehoff to probate was resumed on July 25, 1957, at which time the County Court entered its order admitting the will to probate. The judgment reflects appellant, Donnie Ladehoff, then a minor, was represented by a duly appointed Guardian .ad Litem, a licensed attorney, who “personally appeared in all proceedings in this cause before the court and during the presentation of all of the evidence heard by the court, acting on the behalf of said minor”. The court fixed the fee for the Guardian ad Litem’s services to be paid out of the estate. On February 10, 1966, which was within two years after he had reached his majority, Donnie Ladehoff filed this suit in the nature of a Bill of Review under Sections 31 and 93 of the Probate Code, V.A.T.S., in which he attacks the will of Louise Ladehoff, contending the will was a forgery. The County Court denied the contest and upon appeal the District Court entered a Summary Judgment against the contestant and held the original probate judgment was a final judgment and conclusive of all matters raised in the instant proceedings.

The basic question to be determined is whether an interested minor at the time a County Court judgment probating a will was rendered, is precluded from “contesting” the will in the District Court within two years after reaching his majority by the fact a Guardian ad Litem was duly appointed and represented the minor in the original proceedings, which resulted in the will being admitted to probate. It is appellant’s principal contention that under Sections 31 and 93 of the Probate Code an aggrieved minor has two years after the probate court judgment is entered, to contest the will by a Bill of Review notwithstanding the minor was properly before the Probate Court and represented by a duly appointed Guardian ad Litem. The argument is the minor was simply made a party of the original probate proceedings as an “interested person” under Section 128 of the Probate Code, and was not a contestant in the proceeding.

Sections 31 and 93 of the Probate Code read as follows:

“31. Bill of Review
Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment. Persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to apply for a bill of review.”
“93. Period for Contesting Probate
After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud afterward. Provided, however, that persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to institute such contest.”

In the original probate proceedings of the County Court, commenced in February 1957 and completed on July 25 of that year, Gene McGlasson, a practicing attorney, was appointed by the court to act as Guardian ad Litem for the appellant, then a minor, in compliance with Section 376 of the Probate Code. The judgment states and it is uncontradicted the Guardian personally appeared in all proceedings and acted on behalf of the minor. There are no pleadings nor is it contended there was fraud, collusion or negligence on the part of the Guardian in these proceedings.

As a general rule, a minor is bound just as any other litigant by the judgment rendered in a suit of which he is a party wherein he is represented by a Guardian ad Litem, in the absence of fraud, collusion or mistake. Reynolds v. Prestidge (Tex.Civ.App.), 228 S.W. 358 (Writ Ref.). Smith v. Taylor, 34 Tex. 589; 30 Tex. Juris.2d, Infants, Section 86, page 736.

In the case at bar, the County Court was required to appoint a Guardian ad Litem for the minor in the original proceeding; Section 376 of the Probate Code, Rule 173, Texas Rules of Civil Procedure and Cooper v. Liverman (Tex.Civ.App.), 406 S.W.2d 927, and cases cited therein. The failure to have appointed a Guardian would have rendered the judgment admitting the will to probate voidable.

The thrust of appellant’s position is that the doctrine of res judicata is not applicable here for the reason there has been no prior adjudication of the will contest. That is to say, this minor, although represented in the original proceedings by a Guardian ad Litem, did not “contest” or oppose the original probate of the will; that Sections 31 and 93 of the Probate Code permits the present attack upon the will as it was filed within two years after appellant reached his majority. In our opinion this contention is without merit. The original probate proceeding, ending in a judgment admitting the will to probate, was rendered by the County Court, a court of general jurisdiction pertaining to estates of decedents. Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427 and Section 4 of the Probate Code. It is uncontradicted the County Court has competent jurisdiction of the parties and subject matter in issue.

In our opinion, the provisions of Sections 31 and 93 of the Probate Code offer no relief to appellant. We agree with the interpretation placed on Section 93 by the opinion in Martinez v. Arredondo, Tex.Civ.App., 406 S.W.2d 513. There the court held Section 93 “is merely a limitation statute and was not intended to create new substantive rights for contestants.” The minor was a. party to the original probate proceeding and was represented by a duly appointed Guardian ad Litem. It cannot be said the minor’s interests were not protected even though the probate was not “contested”. To hold otherwise would render the appointment and representation of the minor by the Guardian ad Litem meaningless. In the absence of fraud, collusion or neglect, we conclude the original judgment admitting the will to probate was final and conclusive of issues sought to be raised by appellant in this cause.

The judgment of the trial court is affirmed.


author: BARRON, Justice. SAM D. JOHNSON, Justice

text:
    COCA COLA BOTTLING COMPANY OF HOUSTON, Appellant, v. Martha HOBART et al., Appellees.
    No. 42.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Dec. 20, 1967.
    Rehearing Denied Jan. 24, 1968.

      Thomas S. Terrell, Harman Parrott, Se-well, Junell & Riggs, Houston, for appellant. \
    W. Jim Kronzer, Frank Abraham, Bob W. Young, Brown, Kronzer, Abraham, Watkins & Steely, Carroll V. Webb, Frank Bean, Bean & Manning, Houston, for ap-pellees.
   BARRON, Justice.

This case was instituted by Harrison Hobart and wife, Martha Hobart, plaintiffs, against Coca Cola Bottling Company of Houston, Henke & Pillot, Inc., and the Kroger Company, all defendants, to recover damages for alleged injuries sustained by Mrs. Hobart while she was undertaking to open a Coke bottle purchased at one of the stores of Henke & Pillot, Inc. (hereinafter referred to as Henke). Hen-ke is a division of the Kroger Company, and it operates numerous stores in the Houston area. The case was tried and submitted to a jury upon special issues incorporating the concept of “strict liability” as now announced in the recent decision of the Supreme Court of Texas in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787.

The jury found that the Coke bottle in question was defective when sold by Coca Cola to Henke, and was defective when sold to Mr. Hobart by Henke on May 16, 1964. The sum of $8,796.00 was assessed by the jury in favor of the Hobarts as damages by reason of Mrs. Hobart’s injuries when she cut her finger in an attempt to open the Coke bottle. Based upon favorable answers to the issues, the trial court entered judgment in favor of the Hobarts and against defendants, jointly and severally, but also awarded Henke and Kroger full and complete indemnity as against Coca Cola for any and all sums they may be required to pay in satisfaction and discharge of the judgment in favor of the Hobarts, including costs of court.

By reason of the judgment granting full indemnity to Henke and Kroger the latter-named parties did not file a motion for new trial nor did they otherwise perfect an appeal from the judgment below. The appeal here is by Coca Cola Bottling Company of Houston.

At the outset, we are met with a motion by the Hobarts to dismiss Coca Cola’s appeal. Plaintiffs (Hobart) contend that this court cannot grant effective relief to Coca Cola under the circumstances, and in practical effect, the appeal is moot, because the judgment is claimed to be final as between the Hobarts and Henke. While such contention raises other questions not now necessary to discuss, we hold that Henke and Kroger are before this court, and that Coca Cola did properly perfect an appeal as to them. The appeal bond filed by Coca Cola on June 16, 1967 named only the Hobarts as ob-ligees. But the bond recited that Coca Cola desired to appeal from the entire judgment. In its request for a transcript, Coca Cola asked that the pleadings vis-a-vis Henke and Coca Cola be brought forward to the appellate court. In its amended motion for new trial, Coca Cola moved the court “to set aside the verdict and judgment heretofore rendered against it,” and some of the first assignments of error contained in that motion for new trial were Coca Cola’s complaints about the evidence supporting Special Issue No. 2, which was requested by Henke, and is the issue which enabled Henke to recover indemnity over against Coca Cola. In its notice of appeal, Coca Cola stated, “ * * * the defendant and cross-defendant, Coca Cola Bottling Company * * * gives this its notice of appeal * * We believe that Coca Cola evidenced a clear intention to appeal the entire judgment. On September 20, 1967, Coca Cola filed an amended appeal bond which included Henke and Kroger as obligees. The naming of improper obli-gees in the appeal bond is a defect which can be waived. Rule 404, Texas Rules of Civil Procedure; Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex.Civ.App.), no writ. When there are defects of substance or of form in an appeal bond, such defects are not jurisdictional and are waived by failure to present objections to the bond by motion within 30 days after the transcript is filed. Rules 404 and 430, T.R.C.P.; Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.), writ ref. See also Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. The transcript was filed in the Court of Civil Appeals on July 18, 1967. First mention of any defect in the bond was in the Hobarts’ motion to dismiss which was filed on either September 15 or September 18, 1967. Either date was after the thirty days for making objections to the bond and came too late. We hold that all parties are properly before this Court.

On Saturday, May 16, 1964, Harrison Hobart went to Henke and Pillot, Inc., store number 5 in West University Place to buy groceries. About 4:00 o’clock that afternoon, he picked up a six-pack carton of Cokes at the display counter and placed them in the lower tier of his shopping cart. The Cokes were in a pasteboard carton. He stated that he did not drop the Cokes or “bang them around.” He checked them out, received assistance from a store porter, put them in the back of his car where they could not be shifted around, and took them to his home about eight blocks away. As he started to remove them from the carton to place them in the refrigerator, he discovered that the two middle Cokes in the carton separated or came apart when he attempted to remove them, and some of the fluid came out and into the carton. The two broken bottles came apart about a third of the distance from the base. His wife then put the four remaining Cokes in the refrigerator. Neither person, Hobart or his wife, Mrs. Martha Hobart, saw any defect in the remaining four Cokes. Hobart immediately returned to Henke’s and had the two broken bottles replaced. When he returned, he placed them in the refrigerator, also.

On the next evening, Sunday, May 17, 1964, at about 9:00 p. m., while Mr. and Mrs. Hobart were watching television, Mrs. Hobart wanted to drink a Coke. She walked to the refrigerator, got a bottle of Coke, went to the sink, and as she started to open the bottle with an ordinary opener, the neck of the bottle broke suddenly. Mrs. Hobart’s left middle finger was badly cut. Mr. and Mrs. Hobart testified that only the slightest pressure was exerted by Mrs. Hobart when she attempted to open the bottle and this testimony was later corroborated by Dr. William H. Tonn, who qualified as an expert concerning breaks of this nature.

Ralph W. Vardeman, an experienced store manager for Henke, who was assigned to the involved grocery store at the time, testified that the bottles of Coke were purchased directly from Coca Cola Bottling Company of Houston. Coca Cola sold to Henke three times a week — on Mondays, Wednesdays and Fridays. It made its deliveries early in the mornings as a rule. The Coca Cola delivery man put the Cokes on display and brought them into the store. Either Vardeman or one of his assistants checked the merchandise as to numbers of items and cases, which constituted about all of the checking at that time. The Coke employee stocked up the merchandise as the Coke employee saw fit. When one case was picked up, the roll-up plastic used 'in the display would roll back and hold the other items in place. Vardeman told the Coke employee how he wanted the job done, but he and his employees periodically checked for broken bottles, checked the display and the floors by walking up and down the aisles. There were visual checks made by the store employees to see that the merchandise was stacked properly and to see that there were no broken bottles. The customers of the store would often mix the bottles, and the customers had access to them. Customers would occasionally drop bottles and break them, and children had access to the merchandise. The store employees would then rearrange the display and straighten it up. Vardeman testified that Fridays and Saturdays are the busiest days at the store. When the display would not hold enough stock, cases and cartons of Coke would be used from the back room of the store where they had been put by toca Cola. The store employees would replenish it if the stock became low. Hobart testified that everything looked ■orderly when he purchased the carton of Coke, and that he did not see the Henke employees mishandle the bottles.

Dr. William H. Tonn, Jr., a professional engineer who qualified as an expert witness, testified that he made an appraisal of the broken Coke bottle involved, and that the fracture occurred as a result of an opener being used to remove the cap from the bottle. The cap had only a slight imprint, and that only enouqh pressure had been applied to der.t the bottle cap slightly. He testified that the glass broke with a concordal or compression type fracture. He used a dye penetrant technique to show up the latent cracks in the bottle. He found the wall thickness of the bottle to be uniform. The bottle was 7½ inches high and 2¼ inches in diameter at the base. The lowest point of the fracture was 1.6 inches from the top. The bottle did not explode. He said that there can 'oe a number of causes of a break of this type, but the opener did not break the bottle because insufficient force was used by Mrs. Hobart. He found an inverted “s” crack, but that none of the cracks had anything to do with the breaking of the bottle. He found no other latent defects. His testimony was that breaks can occur because of gas pressure, thermal cracks (hot bottle in cold environment), and external impact. He said that external impact causes a star fracture with cracks radiating out from the point of impact. The involved bottle had none of these, but the fact that two other bottles in the carton separated and broke in the carton could indicate stress or outside forces. If the breaks were clean (around the bottle) ; he would favor thermal breaks, though impact breaks could not be ruled out. If he had been told of the other two bottles which broke in the carton, he would not rule out external force as the cause of the break. It is possible that the two bottles in the carton broke by dropping them (an external force), provided they were not taken out of the carton and had never been in a refrigerated environment. He testified that most bottles break from external force in the body of the bottle just below the neck, but he testified that he could see no cause of the break by external handling or external impact. Dr. Tonn could not say whether the bottle was weakened when it was manufactured, or whether the weakening developed later. When the break occurred in the involved bottle, he could not say whether it was ten minutes before attempted opening by Mrs. Hobart or six months to a year before. Dr. Tonn concluded that the bottle was defective when it broke in the manner it did, but that the only weakness shown was that the bottle broke. No cause could be given.

By appropriate points of error, defendant, Coca Cola, contends that there is a lack of evidence to justify the conclusions that the bottle was defective when sold to Henke and when sold to the Hobarts, because a specific defect was never identified. In order for liability to arise in favor of the Hobarts, the evidence must show that the bottle of Coke was “in a defective condition” and “unreasonably dangerous to the user or consumer.” Section 402A, Restatement of the Law of Torts (2d Ed.). The evidence must further show that the product was in a defective condition when it left the hands of the particular seller. Jack Roach-Bissonnet, Inc. v. Puskar, 417 S.W.2d 262, 278 (Tex.Sup.); Prosser, The Fall of the Citadel, 50 Minn.Law Rev. 791, 841. The proof of a defect in the bottle, however, was clear enough. The bottles were not abused after their purchase from Henke. Plaintiff, Mrs. Hobart, exerted only slight pressure upon the bottle with the opener at the time she attempted to open it, and the bottle broke and cut her finger. We believe that under such circumstances, proof of a defect is adequately established. When one makes ordinary and reasonable use of a product in a manner anticipated by the seller and is injured by an identifiable imperfection therein, the proof is sufficient on this point. , The break in the bottle is not denied by defendants. It is failure to prove the engineering or structural cause of the defect of which Coca Cola complains. It is not' essential that expert testimony be used to prove a defect of this nature if other testimony is in the record bearing upon liability.

Expert testimony is impossible to produce in many cases. Compare Vassallo v. Sabatte Land Co., Inc., 212 Cal.App.2d 11, 27 Cal.Rptr. 814 (1963), and see Keeton, Products Liability, 19 Southwestern Law Journal, 36-42; Prosser, The Fall of the Citadel, 50 Minn.Law Rev. 840-848. We overrule Coca Cola’s first contention.

Jack Roach-Bissonnet, Inc. v. Puskar, supra, cited by Coca Cola, is not here in point. In that case, the defect was not shown to be the cause of the accident, and no further defect was proven. On the contrary, the alleged defects in that case, the automobile brakes and steering, were shown not to have been defective.

Defendant, Coca Cola, further contends that there is a lack of evidence to justify a conclusion that the Coke bottle was defective when sold by Coca Cola to Henke, because the alleged defect was not traced to Coca Cola. The claim is that no attempt was made in this case to account for the bottle while it was in the possession of the Henke store, although the Hobarts may have accounted for it during the time it was in their possession.

Mr. Vardeman, although testifying to nothing whatsoever concerning this particular bottle, testified that prior to May of 1964, in that store, he had seen people handling the soft drinks, dropping bottles and breaking bottles. It was a usual occurrence for people to mix bottles from one carton into another. It was evident from his testimony that the soft drink bottles were kept on the self-service display, and that the store customers had full access to them. The purchase of the six-pack carton was made by Mr. Hobart about 4:00 p.m. on a Saturday. The Coke bottles had apparently been in the Henke store at least since early Friday morning and subject to the handling of store employees and any customer of the store. While Dr. Tonn stated that he could not find any cause of the break in the bottle by external handling or external impact, he did not rule out these causes, provided the bottles were not taken out of the carton and had never been in a refrigerated environment, there was no testimony concerning a refrigerated environment, and the record is silent as to who put the bottles in the carton and whether they were mixed from other cases or cartons by Henke or its customers. Apparently, Dr. Tonn was not told that two of the bottles broke when Mr. Hobart removed them from the carton at his home, but he did testify that if he had been told of such occurrence before his testimony began, stress or outside forces could be indicated. He could not say when the defect occurred, and he could give no cause of the break in the Coke bottle.

While the test applicable to the doctrine of res ipsa loquitur is different from that involved in “strict liability,” in that in the former, it is necessary for the plaintiff to show that the instrumentality causing harm was in the exclusive control and possession of the defendant at the time of the occurrence, or at least at the time of the alleged negligence, in the latter it is only necessary to show that the defect existed at the time of sale and delivery, and that no substantial change occurred thereafter. But the object of the proof is the same. The defect and unreasonable danger to the consumer must be traced to the manufacturer, Coca Cola Bottling Company of Houston, in like manner if liability is to be fixed upon the manufacturer. The methods of proof are similar, and there must be reasonable inferences in the testimony to show that Coca Cola sold Henke a defective product if the judgment against Coca Cola is to stand. While the authorities are not entirely consistent or uniform on this subject, we believe the better view, and, indeed, the authority by which we are bound, is expressed in the case of Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008, 1009 (1952). In that case the Texas Supreme Court said:

“Plaintiff’s witness, Mr. Wehring, the owner of the store, testified that the deliveries were made to his store by defendant before noon or at noon. There was other undisputed testimony showing that deliveries were customarily made on Tuesdays, Thursdays and Saturdays. The plaintiff testified that he purchased the bottles in question about 1 p.m. on Wednesday. Therefore, the bottles were in the store for at least a twenty-four hour period prior to the plaintiff’s purchase. There is no direct testimony in the record showing how long the bottles in question had actually been in the store, the store owner testifying that he had no way of knowing the length of time of their presence. Wehring operated a ‘self-service store’ and the testimony clearly shows that all the customers handled the bottles and cartons on display; that bottles were transferred from cases into cartons; that sometimes cartons broke and the bottles dropped on the floor. The plaintiff did not know what had happened to the coca cola bottle before it was sold to him. There was no evidence warranting the submission to the jury of a special issue inquiring of the intermediate handling of the bottle in question. The plaintiff did not satisfy the controlling requirement that he negative the possibility of an intermediate actor on the agency causing the injury, by a preponderance of the evidence, so as to allow the jury to decide whether negligence on the part of the Coca Cola Company might be inferred.”

The difficult questions are those of circumstantial evidence and inferences from the facts. There is no indication that these are to be dealt with in any different manner from the negligence cases. Res Ipsa Loquitur is not an applicable principle when there is no question of inferring any negligence; but the inferences from circumstantial evidence which are the core of the doctrine are no less applicable to strict liability. 50 Minn.Law.Rev. 842.

The Texas rule, and the rule of the majority, is that a plaintiff can trace a defect back to the bottler by showing that all who have handled the bottle since it left the bottler’s hands, handled it with care, and that its condition underwent no change. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445. In Honea, the bottles involved had been delivered by Coca Cola only five or ten minutes before the accident, and the tracing evidence was held to be sufficient to raise an issue for the jury. In Trust v. Arden Farms Co., 50 Cal.2d 217, 324 P.2d 583, 81 A.L.R.2d 332 (1958), the plaintiff was injured when a milk bottle broke in her hand about three days after it had been delivered by Arden Farms. The milk bottle broke while plaintiff was in the process of setting the bottle on a tile drainboard. Plaintiff testified the bottle was placed in the ice box and used several times before the accident. An expert witness testified that the bottle broke under a very mild impact and that it would not have broken unless it had been defective; that the cause of the defect was impact, but that it was impossible to determine its nature, when it occurred, and non-access of the bottle to others. The appellate court held that there was no evidence showing liability of Arden Farms, the defendant. In Vassallo v. Sabatte Land Co., Inc., 212 Cal.App.2d 11, 27 Cal.Rptr. 814, a breaking milk bottle case, the bottle broke in the hands of plaintiff about 30 seconds after the milk had been delivered by defendant. The court held that there was ample evidence from which the trial court could conclude that the bottle was defective when delivered to the plaintiff. The court distinguished Arden Farms in point of time and access. See also Sharpe v. Danville Coca-Cola Bottling Co., 9 Ill.App.2d 175, 132 N.E.2d 442; Williams v. Paducah Coca Cola Bottling Co., Inc., 343 Ill.App. 1, 98 N.E.2d 164; Miami Coca-Cola Bottling Co., Inc. v. Reisinger, 68 So.2d 589 (Fla.Sup.); Tennebaum v. Pendergast, 89 N.E.2d 490 (Ohio Common Pleas); Prosser, The Fall of the Citadel, 50 Minn.Law.Rev. 840. We believe that the evidence attempting to show proper handling of the Coke bottle by Henke after the bottle had left the possession of Coca Cola is necessarily negative, incomplete and equivocal, and that this case falls squarely within the rule of Hankins v. Coca Cola Bottling Co., supra. Dr. Tonn’s testimony was inconclusive and indefinite, and did not furnish testimony or any inferences which could result in issues of fact to be submitted to the jury on the question of defectiveness of the bottle when sold by Coca Cola to Henke.

We therefore sustain Coca Cola’s second contention and hold that there is no evidence to show that the botle was defective when sold by Coca Cola to Henke.

In recent cases, this Court and other courts in Texas have gone far in liberalizing the rules under which a plaintiff can make a recovery in a products liability case. But although a plaintiff need no longer prove negligence, privity of contract, or, as a general rule, freedom from contributory negligence, he should be required, at the least, to prove some defect in the product when it was sold, either directly or circumstantially. Such a rule is supported by many authorities. Furthermore, it is one that is surely fair and reasonable.

The proof is sufficient to show that the bottle was defective when it was sold to Mr. Hobart by Henke. Liability of Henke to plaintiffs is established under McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967), and Sec. 402A, Restatement of the Law of Torts (2d Ed.), adopted as the rule in Texas by McKisson.

Coca Cola contends that the damages awarded by the jury are excessive. That contention is conditionally joined by Henke. Mrs. Hobart’s injuries were extremely painful, she has suffered a permanent injury to her finger, and she testified that the injury continues to be painful and disabling. While the jury seemingly awarded a sum of money which reaches the outside limits of propriety, we decline to order a remittitur, and, in effect, to substitute our judgment for that of the jury. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835.

The judgment against Coca Cola Bottling Company of Houston is reversed, and the judgment against Coca Cola for indemnity in favor of Henke & Pillot, Inc., and the Kroger Company, is reversed and judgment is here rendered that the parties take nothing as against Coca Cola.

The judgment in favor of plaintiffs against Henke & Pillot, Inc., and the Kroger Company is affirmed.

Costs are divided equally between plaintiff for one-half, and Henke and Kroger for one-half, to be taxed accordingly-

Judgment rendered, Associate Justice Johnson dissenting, and opinions filed December 20, 1967.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted, based on the persuasion that the judgment of the trial court, attaching liability to Coca Cola, should be affirmed.

The majority has concluded that the proof was sufficient to show that the bottle was defective when it was purchased by Mr. Hobart from Henke and that “the proof of a defect in the bottle * * * was clear enough.” However, the majority continues, “* * * there must be reasonable inferences in the testimony to show that Coca Cola sold Henke a defective product if the judgment against Coca Cola is to stand.” Not finding the “reasonable inferences” in the record, liability of Coca Cola is denied because the defect in the bottle was not sufficiently “traced” to Coca Cola.

Deliveries of the Coca Colas to the Henke store were made on Monday, Wednesday and Fridays. Hobart’s purchase was made on Saturday afternoon. Though there may have been cases left over from previous deliveries, there is a substantial probability that this particular carton had been in Henke’s possession for only a matter of hours during some part of two business days.

Substantial affirmative testimony appears in the record that negatives any mishandling by Henke during this period of time. Careful handling was shown in the general upkeep of both the store and the soft drink section, in the checkout lady’s handling of this specific carton, and in the grocery boy’s transportation of the groceries, including the carton containing this Coca Cola. In addition, Henke continually checked for defective or broken bottles by visual inspection. Even if this carton of Coca Cola was one of those placed in the back room and used to replenish the stock sold, as occurred with most frequency on Fridays and Saturdays, the testimony negatives mishandling by Henke.

There is only one intervening agency between Coca Cola’s loss of possession and Hobart’s acquisition that remains to be considered: the store customers that had access to the soft drink section. Having established a defect in the bottle, it is here, and only here, that an inference is necessary. An inference is essential at this juncture for any holding that would be dispositive of this case.

To infer that this bottle was tampered with by customers even at a self-service store appears, at best, highly speculative and conjectural. The better reasoned inference, indeed the only reasonable inference, would seem to be that Hobart acquired this particular defective bottle just as Coca Cola delivered it to Henke, and that the bottle was defective when Coca Cola placed it in the Henke store.

The appeal of this latter inference is enhanced when placed aside Dr. Tonn’s testimony that, first, the subject bottle gave no indication of being damaged by external force or violence and that he found no evidence of external force or damages being applied to this particular bottle. Dr. Tonn also testified that there were three reasons for breaks: namely, thermal cracks, gas pressure and external force. Under these circumstances, external force is the only type of damage that customers could occasion. This is the very kind excluded by Dr. Tonn’s testimony as the cause of the break.

The Texas cases that are cited undoubtedly cast the burden upon the complaining party to establish that' the container was not mishandled while in the intermediate possession of others. All of these, however, involve the attempt to apply the principles of res ipsa loquitur so as to sustain recovery. Since McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787, the necessity of meeting the stringent requirements of “exclusive possession” within the res ipsa concept has been eliminated. The “strict liability” theory of McKisson looks only to a showing of the defect at the time of sale by the party sought to be charged and that no substantial change occurred thereafter.

In Renninger v. Foremost Dairies, Inc., 171 So.2d 602 (Fla.App.1965), the customer claimed to have been injured when the bottom dropped out of a milk bottle and fell on her foot after she had lifted it from a milk box. The Florida court stated:

“The defendant urges, however, that its responsibility for the bottle terminated with the delivery to the store of the milk bottle in a sound condition and that there is nothing in the record upon which the jury could find that the bottle was defective at the time it was delivered. The defendant contends that it was not permissible for the jury to infer that the bottle was delivered in a defective condition because there are other reasonable inferences to be drawn from the circumstances. For example, it is suggested that the bottle may have been cracked or otherwise damaged by an employee of the store in replenishing the customer’s milk box, or that the bottle may have been damaged by another customer in removing or examining one of the bottles of milk.
“The rule is that when circumstantial evidence is relied upon in a civil case as a method of proof, any reasonable inference deducible therefrom which would authorize recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail. Furthermore, an inference may not be founded upon an inference except when the first inference may be elevated to the dignity of an established fact because of no contrary reasonable inferences. Voelker v. Combined Ins. Co. of America, Fla., 1954, 73 So.2d 403.
“The jury in returning a verdict for the plaintiff necessarily must have found that the bottle of milk was defective at the time it was delivered by the defendant to the store. We do not think that such a conclusion constituted the finding of an inference upon an inference because the first inference to-wit, that the bottle was defective when it parted and fell on the plaintiff’s foot, is the only reasonable inference that can be drawn from the circumstances. (Citing cases) * * * In addition, the possibility that the defect was caused by an unusual circumstance such as a third party striking the bottle with or upon a sharp or heavy object is so remote as to not constitute a reasonable explanation for the existence of the defect.”

The “competing inference” in the case at bar is strikingly similar to the one dealt with in the Renninger case; that from time to time customers removed cartons from the racks, replaced them, and mixed and intermingled the bottles. To infer that this may have occurred here necessitates a second inference: that such action occasioned the damage to this particular bottle. The second inference, coupled with its parent, have more of the characteristics of remote speculation rather than a reasonable inference.

In Kroger Co. v. Bowman, 411 S.W. 2d 339, 341 (Ky.App.1967), as the customer pulled a carton of Dr. Pepper from the rack, one of the bottles fell therefrom due to an alleged splitting of the side of the carton. No witness testified as to how or when the tear in the carton occurred. The defendant bottling company sought to rely on the proof requirements of the res ipsa loquitur cases and the court stated:

“We turn them to examine the record with reference to evidence of the products having been furnished in a defective condition within the ‘strict liability’ definition. It would not be doubted, we suppose, that liability would have obtained had Mrs. Bowman picked up the carton at the Dr. Pepper plant, and sustained the injuries in the same manner. Instead, Dr. Pepper placed a carton in the Kroger stores; it was • not inspected by Kroger, nor is there any showing that it was tampered with by anyone from the time it was placed on the Kroger rack by Dr. Pepper. In our view the circumstances thus presented are ample to warrant the reasonable inference that the carton was in a defective condition when Dr. Pepper placed it in the Kroger store.”

Likewise, in the case at bar,' the circumstances seem ample to warrant the reasonable inference that the bottle was in a defective condition when Coca Cola placed it in the Henke store.

As heretofore stated, mishandling by Henke is negatived in the record. Therefore, to suggest that this bottle was damaged by some person not connected with the appellant can be no more than a speculative or conjectural possibility. Of the two inferences available, the most reasonable would appear to be that the defect pre-existed its placement in the Henke store by Coca Cola. The burden to establish non tampering — under the strict liability theory, if not the res ipsa theory as well — is sufficiently met with the introduction of competent evidence that the bottle was not substantially changed by intervening agencies. This was here accomplished. The burden does not require that it be established beyond per-adventure.

Here the jury not only found that the bottle in question was defective when sold by Coca Cola to Henke, but also awarded Henke full and complete indemnity against Coca Cola for any sums that they might be required to pay in satisfaction of the judgment in favor of the Hobarts. The trial court’s judgment, in accord with the jury’s findings, should be affirmed.


author: SAM D. JOHNSON, Justice.

text:
    P. L. (Pinkle) GEORGE, Appellant, v. HOUSTON BOXING CLUB, INC., et al., Appellees.
    No. 41.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Dec. 20, 1967.
    Rehearing Denied Jan. 24, 1968.

      James C. Brady, Houston, for appellant.
    John H. Caldwell, Ernest C. Hurst, Caldwell & Hurst, Houston, for appellees.
   SAM D. JOHNSON, Justice.

This was an action for damages for breach of contract brought by the appellant, P. L. (Pinkie) George against two appellees, the Houston Boxing Club, Inc., and K. S. (Bud) Adams, Jr. The “contract” relied upon was a letter agreement dated February 1, 1965 by and between the Houston Boxing Club, Inc., one of the appellees, and P. L. (Pinkie) George, the appellant. K. S. (Bud) Adams, Jr., was not a party to the letter agreement. The trial court granted summary judgment for the defendant Boxing Club and also for the defendant Adams, both of whom are appellees here.

Prior to the execution and delivery of the letter agreement of February 1, 1965, upon which appellant relies, appellant and one of the appellees, Houston Boxing Club, Inc., had entered into a previous contract dated September 1, 1964. By the terms of this prior contract, appellant, George, had been engaged by appellee, Houston Boxing Club, Inc., as 'a matchmaker for the purpose of promoting professional boxing matches. This prior contract included a provision giving either party thereto the unconditional right to cancel upon thirty days prior written notice. This prior written contract was terminated on February 1, 1965 by a mutual release and the two parties thereto, George and the Houston Boxing Club, Inc. At the time of this release and cancellation, at least, appellant and the appellee, Houston Boxing Club, Inc., had no contractual obligation to each other. It also must be presumed that at this point the appellee, Adams, was under no obligation to appellant.

It was at this juncture that the letter agreement of February 1, 1965, on which this action is based and to which appellant seeks to attach contractual liability, was entered into between appellant and the Houston Boxing Club. The complete letter agreement involved is as follows:

“February 1, 1965
Mr. P. L. (Pinkie) George Houston, Texas
Dear Mr. George:
“This letter will confirm the agreement of the undersigned, Houston Boxing Club, Inc., to retain you as its Matchmaker for the purpose of promoting professional fights between Cleveland Williams and other parties, provided Cleveland Williams recovers from the injuries recently sustained by him and return to professional boxing.
“In the event you are hereafter retained by Houston Boxing Club, Inc., as its Matchmaker as above provided, you shall perform the duties and services enumerated in that certain Agreement dated September 1, 1964, by and between Houston Boxing Club, Inc., and P. L. George, by the terms of which you were retained as the Matchmaker for the said Houston Boxing Club, Inc., and you shall be entitled to receive as consideration for such services, ten per cent (10%) of the net proceeds, as ‘net proceeds’ is defined in said Agreement dated September 1, 1964, received by Houston Boxing Club, Inc., from matches arranged by you for Cleveland Williams; provided, however, that you shall not be entitled to receive from any one promotion a sum in excess of $10,000.00, until such time as A & B Boxing Club, Inc., and K. S. Adams, Jr., shall have recovered from such net losses sustained by them, not to exceed, how ever, the sum of $200,000.00.
“If the foregoing is in accordance with your understanding of our agreement concerning the matters covered therein, please indicate your acceptance hereof and agreement hereto by signing this letter in the space provided below.
Very truly yours,
Houston Boxing Club, Inc.
By /s/ E. C. Hurst
Accepted and Agreed to:
/s/ P. L. (Pinkie) George P. L. (Pinkie) George”

The original contract of September 24, 1964, between George and the Houston Boxing Club, Inc., was for the purpose of promoting and arranging boxing matches. Subsequent to the execution of this original contract between George and the Houston Boxing Club, one Cleveland Williams was physically incapacitated for a number of months and was unable to box. This is a factor of some significance, for even though his name did not appear on the original contract of September 24, 1964, the expectation of the parties thereto apparently was that boxing matches involving Cleveland Williams, and others, might be promoted by the Boxing Club. During the period of Cleveland Williams’ incapacity, it appeared that he might not recover or be able to box again. The original contract of September 24, 1964, was rescinded on February 1, 1965, and on this same date, the “letter agreement” was executed.

The record before the court indicates that all of the money that went into the Houston Boxing Club, some $7,500.00, was furnished by the defendant, Adams, and that the stock of the Houston Boxing Club was held in trust for Adams’ children. The record further indicates that the appellee, Adams, had loaned or advanced the sum of $7,500.00 to the Houston Boxing Club, Inc., for working capital and that no part of such sum had been repaid until the time the corporation was dissolved. At the corporation’s dissolution, the remaining assets, amounting to $900.24, was paid to Adams. The author of the Houston Boxing Club letter dated February 1, 1965, was E. C. Hurst, one of the attorneys for Adams. He was also the person who held the Boxing Club stock in trust for Adams’ children and was an officer in the Houston Boxing Club.

It is undisputed in the record that the Houston Boxing Club promoted no professional boxing matches after February 1, 1965, and received no proceeds or income from the promotion of any boxing matches thereafter. It is further undisputed that after February 1, 1965, the appellant, George, rendered no services of any kind to the Boxing Club, received no proceeds from the Boxing Club for the promotion of any boxing matches, and that he neither arranged nor attempted to arrange boxing matches after that date.

George’s essential affirmative contention is that the corporation, the Houston Boxing Club, was the “alter ego” of the second defendant, Adams, and that the “corporate fiction” should be disregarded, attaching liability to Adams because he received the assets of the dissolved corporation “at a time (when) this corporation had wholly failed to carry out and perform its contractual obligation to plaintiff.” Appellant, George, contends that the trial court erred in its granting the motions for summary judgment for the defendants in the face of such contentions because, he alleges, there were material issues of fact in this regard.

Rule 166-A(c), Texas Rules of Civil Procedure, providing for summary judgment states: “The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, 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.” We are in accord with the trial court’s determination that this was an appropriate case for granting the motions for summary judgment.

The initial inquiry is whether or not an enforceable obligation on the part of the Houston Boxing Club, Inc., was created with the execution of the letter agreement, the instrument and “contract” on which this action is predicated. Absent affirmative action on the part of the appellant, George, we believe it did not.

The letter agreement clearly expresses the condition that George perform certain duties and services that were previously enumerated in the prior written contract of September 1, 1964. Appellant does not contend that he performed any of such duties or services, but only claims that he was willing, ready and able to do so.

A second expressed condition in the letter agreement is to the effect that appellant’s right to any compensation is dependent upon “net proceeds” being received by appellee, the Houston Boxing Club, from matches involving Cleveland Williams and promoted by the Boxing Club. The record is quite clear that no such proceeds were received. Appellant makes no allegation or contention that the Boxing Club received proceeds of any nature to any obligation on the part of the Boxing Club.

A third contention of the letter agreement is based on the requirement that appellant arrange boxing matches for Cleveland Williams before he is entitled to compensation. Appellant arranged no boxing matches and provided no service in this connection. The letter agreement was, by its terms, clearly conditional and contingent. The conditions and contingencies must be satisfied to occasion an obligation to George on the part of the Boxing Club. “A contract may be conditional; and the parties thereto may prescribe the conditions under which they shall be bound thereby. A conditional contract is an executory contract, the performance of which depends on a condition. A condition in a contract is a clause which has for its object to suspend, rescind, or modify the principal obligation.” 17A C.J.S. Contracts § 337, Conditions in General, p. 315.

Even if the contract were not conditional and if an affirmative obligation on the part of the Boxing Club had been shown, the record establishes that as a matter of law, the app llee, Adams, was not the alter ego of the Houston Boxing Club, Inc., and would not be responsible or liable for its contracts. A corporate entity may not be disregarded simply because it stands as a bar to a litigant’s recovery of property. Here the appellant makes no specification of the theory under which he attempts to disregard the corporate form and cast personal liability on the individual, though it would appear to be that the corporate vehicle was used in order to avoid an existing legal obligation to the appellant, George. If there was any such existing obligation, it was clearly terminated by the mutual release and cancellation effected by the parties on February 1, 1965. There could have been no resort to the corporate entity to avoid an existing obligation when such obligation, if any, arose under an agreement to which the corporation itself was a party. Additionally, we find no Texas cases applying the alter ego doctrine to a situation where the individual owned none of the outstanding stock, which is the situation in the case at bar.

Lastly, the letter agreement of February 1, 1965, was, on its face, solely between appellant and the Houston Boxing Club. Appellant’s prior contractual relation, which had been mutually terminated, was with this same corporation. The record makes clear that the appellant, at all material times, knew Adams, knew of his relationship with this corporation, and was cognizant of the fact that Adams was neither a contracting party to the letter agreement of February 1, 1965, nor to the prior contract. Appellant makes no contention that he requested Adams to become a party to the contract or to guarantee the obligations of the Boxing Club. Appellant made no objection to the fact that Adams did not join in the contract. Appellant freely and voluntarily chose to deal exclusively with the corporate entity and, having done so, is estopped to claim that the corporation was the alter ego of the individual and that the individual should be held liable, personally, under a contract which he chose to make with the corporation only. Blond Lighting Fixture Supply Co. v. Funk, Tex.Civ.App., 392 S.W.2d 586 (no writ); Moore & Moore Drilling Co. v. White, Tex.Civ.App., 345 S.W.2d 550 (Ref., n. r. e.); Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Chester R. MORRIS, Appellant, v. Hans BLANGGER, Appellee.
    No. 11565.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1968.
    Rehearing Denied Jan. 24, 1968.
    Chester R. Morris, per se.
    A. T. Mullins, Austin, for appellee.
   HUGHES, Justice.

Chester R. Morris, appellant, sued Hans Blangger, appellee, for damages. The nature of appellant’s complaint, as gleaned from his third and last amended original petition is as follows:

Appellee, a real estate agent, filed a forcible detainer suit in a justice court of Travis County against appellant without having given him three days written notice as required by law; that appellee willfully, maliciously, falsely and without probable cause swore in the complaint filed by him that he had given appellant written notice to vacate the premises. Appellant alleged that he was served with a citation by a constable in the forcible detainer suit. It was also alleged that appellee was not a licensed attorney and hence had no lawful authority to file the suit for his principal, Chester Brooks; that when appellant filed an answer in the justice court pleading that he was not given the statutory notice to vacate, appellee took a nonsuit.

Thereafter, the petition alleged, proper notice was given and the forcible detainer suit refiled by an attorney and not by ap-pellee. The remainder of appellant’s pleading relates to the question of damages.

Appellant’s suit is difficult to categorize. It is not a suit for abuse of process because the only process issued was a citation and no allegations are made that there was any abuse in the execution or service of this process. See Process and Notices, 46 Tex.Jur.2d Sec. 102.

If appellant intended to framé an action for malicious prosecution he has failed because the rule is firmly established in this State that damages cannot be recovered for the prosecution of civil suits, with malice and without probable cause unless the party sued suffers some interference, by reason of the suit, with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153; Malicious Prosecution, 37 Tex.Jur.2d Sec. 10.

Appellant’s petition alleges no interference with his person or property. It was fatally defective.

The trial court rendered judgment dismissing appellant’s suit “without prejudice” and in his judgment made these findings:

‘The Court being of opinion that pleadings of plaintiff are insufficient, and the Court being of opinion that such pleadings •of plaintiff are still insufficient after plaintiff has amended the same repeatedly, and the plaintiff having expressed opinion that his pleadings are sufficient and that plaintiff has done all any attorney could do or all any person could do to correct any alleged insufficiencies in pleadings absent more definite information in pleadings of defendant and plaintiff having requested the court determine the cause on pleadings as they are, the court feels this cause of action should be dismissed and since defendant is pleading special exceptions, dismissed without prejudice.”

Under the circumstances referred to by the court and reflected by this record, it is our opinion that appellant’s suit should be dismissed with prejudice. The exceptions made by appellee to appellant’s pleading clearly pointed out the necessity to allege that appellant or his property had suffered some interference as a result of the filing of the forcible detainer action in order to allege a cause of action. It is reasonable to assume that if appellant could have truthfully made such allegations he would have done so.

There is nothing in this record to indicate that appellant can, in good faith, plead a cause of action against appellee arising from the incident which gave rise to this suit. Under these circumstances, it is our duty to finally terminate this litigation.

We reform the judgment of the trial court so as to dismiss appellant’s suit with prejudice and as reformed the judgment is affirmed.

Reformed and as reformed, affirmed.