author: PRESLAR, Justice.

text:
    W. H. VANLANDINGHAM et ux., Appellants, v. FIRST SAVINGS & LOAN ASS’N., et al., Appellees.
    No. 5787.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1966.
    Rehearing Denied Jan. 4, 1967.
    Lynch & Chappell, Midland, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, Emil C. Rassman and John Gunter, Midland, for appellees.
   OPINION

PRESLAR, Justice.

This is a slip and fall case in which a summary judgment was granted in favor of the two defendants.

Appellants, W. H. Vanlandingham and wife, Irene Vanlandingham, brought suit against appellees First Savings & Loan Association of Midland, and Criver-Hicks Building Maintenance, Inc., for personal injuries to Irene Vanlandingham resulting from a fall on the floor of the premises of First Savings and Loan Association. Plaintiffs alleged that Mrs. Vanlandingham entered the savings association’s building as a customer on the occasion in question; that the defendant Criver-Hicks provided janitorial services to such premises, including maintenance of the floor, and that the two defendants were guilty of acts of negligence causing her fall. It was alleged that the floor was slippery; that her fall was caused solely by the slipperiness of the floor; and that the defendants were negligent in failing to clean the vinyl tile floor thoroughly before applying wax, using an electrical buffing machine, mopping with clear water, sweeping with a hair broom, permitting excessive wax accumulation, applying an imperceptible film of paraffin wax, applying wax contrary to the manufacturer’s instructions, maintaining the tile floor in a manner contrary to the instructions of the tile manufacturer, and permitting an improperly trained employee to care for the floor. It was alleged that each of such acts and omissions caused the floor to be slippery and constituted negligence, causing the slip and fall and the resulting severe injuries. In addition to denying any act or omission of negligence, the defendants alleged proper maintenance of the premises, lack of knowledge of any defect, open and obvious condition, assumption of risk, voluntary exposure to risk, contributory negligence, proper lookout and unavoidable accident.

This being a common law negligence case determined under the provisions of Rule 166-A, and such cases ordinarily not being susceptible of summary adjudication, it is necessary to look briefly to the rules which govern its disposition.

As set out in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.1965):

“Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957).”

Depositions of four witnesses were before the court; a vice-president of the Savings Association, the manager of the maintenance company, the janitor employed by the maintenance company, and the plaintiff Irene Vanlandingham. Also, there was an affidavit by Mrs. Vanlandingham in opposition to the motions for summary judgment.

Principally because of the deposition of plaintiff, Mrs. Vanlandingham, appellees urge correctness of the judgment under two concepts of assumed risk: (1) the “no duty” doctrine, as to which it is said that an occupier of premises owes no duty to warn or protect an invitee from open and obvious dangers of which the invitee knows or of which he is charged in law with knowledge; and (2) the “volenti non fit injuria” doctrine, which does not allow recovery where the plaintiff receives injury to which he assents or to which he voluntarily exposes himself with knowledge and appreciation of the danger.

In seeking to summarily dispose of the plaintiff’s case, the defendants thus undertake to establish that each and every element of at least one of those concepts of assumed risk exists as a matter of law. Their task is difficult, and we do not think it was accomplished, for we are of the opinion that the deposition and affidavit of the plaintiff, Mrs. Vanlandingham, do not foreclose a fact question as to her knowledge of the slippery condition of the floor. Such knowledge is an element of both concepts.

The fact that the floor was slippery cannot seriously be questioned in this proceeding. It was controverted. Mrs. Vanlandingham testified positively that it was slippery. Under the rules quoted above, we accept that and ignore the contrary evidence of the movant for summary judgment. That fact being established, it can be inferred from the evidence submitted that the appellee knew or should have known of it. Appellees’ position here is that the slippery condition was open and obvious, which is quite the opposite from saying it does not exist. Assuming then, that the condition of the floor was slippery, we move to the matter of Mrs. Vanlanding-ham’s knowledge of that condition. The holdings of our Supreme Court are that ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368; McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Wesson v. Gillespie, Tex., 382 S.W.2d 921. The question is as to the actual knowledge and appreciation of this plaintiff, as distinguished from what she should have known and appreciated. She could not intelligently choose to encounter a risk of which she did not actually know, even if she should have known. Justice Greenhill, the author of the opinion in the Halepeska case, explains it in an article in the Texas Bar Journal, Vol. 28, No. 1, p. 62, dated January 22, 1965:

“In McKee v. Patterson it was said that the Plaintiff could not recover if he knew of the conditions, and appreciated the danger, or should have known and appreciated the danger. The particular language which caused the difficulty was the statement that under some conditions, it might be an issue of fact for the jury as to whether the plaintiff-invitee should have known of the danger. In the Hale-peska opinion, the Court reconsidered the ‘should have known’ and ‘should ^iave appreciated’. It narrowed the factual inquiries to knowledge and appreciation of the danger as distinguished from ‘should have known and appreciated’. The Court reasoned that a person could not make any sort of intelligent choice if he did not know of the danger or appreciate the extent of it. Perhaps a plaintiff, as a prudent person, should have known and appreciated the danger, but he did not. That question, however, is one of contributory negligence and may be separately submitted along with proximate cause. What the Supreme Court did in the recent Halepeska case was to be more certain that the plaintiff did know of the danger and did appreciate the risk. These, with knowledge of the conditions, are the basic ingredients.”

To establish plaintiff’s knowledge of the danger in the case before us, appellees point to her deposition statement that she had slipped, but not fallen, on this floor on other occasions. But the depositions show that she was only in the premises once every two or three months and do not show that she had been on the premises more recently than that before the occasion of her fall, and the floor was waxed once every two weeks, washed and buffed at varying intervals, and swept and dust-mopped daily. The slippery condition of the floor could have varied from day to day or between visits of the plaintiff. This presents a different situation from the unchanging stairs of the bank in Houston Nat. Bank v. Adair, and the unchanging door trestle of the Eight-Ball Lounge in Wesson v. Gillespie. How the floor was maintained from day to day was the basis of acts of negligence alleged by plaintiff, and presumably some of those acts could have brought about a changed condition between the visits of plaintiff. A close question is whether plaintiff had knowledge of the slippery condition by seeing it. Was the slipperiness so open and obvious that it could be plainly seen? One cannot close his eyes to obvious danger, but the test is whether it is so open and obvious that one could plainly see it. Plaintiff testified by deposition at great length as to this, and the bulk of her testimony goes to appearance of neat and clean, glossy, shiny, and highly polished. Under persistent questioning she admitted that when she said it was highly polished, she meant that it was slippery. Her testimony would support a jury finding on such a question, or possibly call for a directed verdict, but this is a summary judgment case, so that we must look only to the evidence to the contrary. When we do that, we find that her testimony loses its conclusive character.

“Q You stated it was always highly polished. I asked if you meant by that that it was slippery, and you said ‘yes’. Do those terms mean the same to you— ‘highly polished’ and ‘slippery’?
A It could be.
Q Could be — O.K. But this floor, in particular, is it your testimony it was always slippery?
A I had never fallen before.”
“Q Prior to falling, at that time, had you slipped or felt the floor being slippery that day — prior to falling?
A No.”
******
“Q On the times previous to the day in question, the day on which you fell, how would you describe the floor in regard to its slipperiness; in other words, had you noticed it as being a slippery floor, or had you noticed anything about that at all?
A It was always highly polished, neat in appearance.”

Much of the plaintiff’s deposition testimony is of a similar nature. Plaintiff executed an affidavit attached to her motion in opposition to the application for summary judgment, in which she said: “I had no actual knowledge that the floor was in such condition as to cause me to fall and I did not appreciate the fact that the floor was dangerous until after I had fallen”; and, “The young man who took my deposition insisted on using the terms ‘highly polished’ and ‘slippery’ as synonyms”; and “ * * * even though the floor was highly polished and neat in appearance, it did not necessarily look dangerous.” We think this affidavit could be considered for what it was worth, although the objection is now made that it is self-serving and amounts to conclusions, and we think the last-quoted statement (that the floor did not look dangerous) is pertinent to our question. It is a hair-splitting observation, but then this is a close case; so we observe that we are not entirely satisfied that the plaintiff could determine by visual observation alone that the floor was slippery. “Slippery” is a condition better determined by the sense of feel, rather than sight. It is not something which, in the words of the comic-strip character, “any fool could plainly see”. What we are saying here is emphasized by the case of Cline v. Texas Hotel, Tex.Civ.App., 392 S.W.2d 594 (n. w. h.), in which summary judgment was upheld on the plaintiff’s testimony that she could feel the slickness of the floor as she walked on it, and on the occasion in question actually felt of the floor, as she always did, on entering those premises to check on its known slick-as-glass condition. She had been recently on the premises and remained there during the course of a banquet before her fall. In our case, Mrs. Vanlandingham had an opportunity to observe the floor only during the time it took her to go from the door to the counter and almost back to the door, where she fell. She felt of the floor after shechad fallen.

Being of the opinion that the motion for summary judgment should not have been granted, the cause is reversed and remanded for trial.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    S. M. GRIFFIN, Appellant, v. Lillah Davis WALDEN et vir., Appellees.
    No. 4538.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1966.
    Rehearings Denied Dec. 1, 1966.
    Bryan, Wilson, Olson & Stem, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellees.
   OPINION

WILSON, Justice.

Plaintiffs prayed for and obtained judgment cancelling and declaring of no further force an exclusive realty development contract on the alleged grounds that defendant had concealed facts concerning the sale price and his ability to make a sale of the land described in the contract.

The written agreement cancelled by the judgment, dated January 1962, recited plaintiffs were owners of about 63 acres which was to be surveyed and subdivided into one-acre lots. Plaintiffs agreed to construct a road on the tract and defendant agreed to build a bridge. Defendant was to construct necessary streets, which the owners agreed to dedicate, and he was granted the exclusive right for five years to develop and sell the land. Plaintiffs agreed “to convey said tracts to any purchaser designated” by defendant for $1000 cash per lot less abstract costs and closing expense. Defendant, it was agreed, should “be entitled to all of the purchase price for each tract over and above the $1000,” and was to “be the sole judge of the sale price for each tract.”

The petition averred that in May, 1965 defendant told plaintiffs he was unable to sell the land at a price which would allow plaintiffs to receive $1000 per lot, but that defendant himself would buy fifteen acres at $800 per acre, and would purchase another five acres for a total price of $2000; that plaintiffs orally agreed to that proposal; and that in reality defendant had previously contracted to sell the twenty acres for $1,550 per acre.

The jury answered issues submitted to the effect that in May defendant concealed that a contract had been signed by purchasers to buy the property at $1,550 per acre; that the concealment was with intent to defraud plaintiffs; that the reasonable value of labor and materials expended by defendant in developing the property was $1500, but plaintiffs had not “accepted the benefits” thereof. No allowance was made to him for these sums by the judgment.

Defendant’s primary position is that the grounds pleaded and found by the jury did not authorize cancellation of the original contract and forfeiture of defendant’s rights thereunder. The argument is that defendant was an independent contractor, not an agent of plaintiffs, and had no duty to inform the latter that he had procured a commitment from a purchaser to buy at $1,550 per acre.

In our opinion defendant’s duty vel non and the legal consequences of his conduct does not turn on his status under the contract. It is unnecessary for us to decide his relationship. He induced plaintiffs to agree to take less than the $1000 per acre they were entitled to under the original contract by the admitted concealment of the terms of an agreement under which he was to make a secret profit. True, there was no limit to the secret profit he was authorized to effect under the original agreement, so long as plaintiffs were to receive $1000 per lot. The malfeasance, under the evidence and verdict, consisted in the prejudicial effect of the concealment on plaintiffs’ rights. Assumption by defendant, as a result of the favorable circumstances which the agreement afforded him, of a position which conflicted with, and prejudiced the rights of plaintiffs in the subject matter of the contract authorized equitable termination or cancellation of the contract. 3 Am.Jur.2d, Agency, Sec. 48, p. 451; 2 C.J.S. Agency § 74c, p. 1157. This rule is not limited to contracts of agency, and defendant cites no authority to the contrary.

Defendant says it is undisputed plaintiffs had agreed two months before May, 1965 to accept $800 per lot, and this preceded the agreement of purchase at $1,550 per lot. Defendant did so testify, but this testimony is not undisputed. He testified: “Q. From the 21st of May, 1965, after you had a binding contract to sell that property for $1,550 an acre, did you represent to Mr. C. B. Walden that if he didn’t sell that property to you for $800 an acre you didn’t see how it could ever be sold? A. I won’t say that it’s the exact same words as that, but it was the essence of that statement. Q. All right, you did make that statement to them didn’t you ? A. Something like that. Q. That you didn’t know how that could ever be sold if he didn’t let you buy it at $800 an acre, didn’t you? A. Something to that effect. Q. And at that time you had a binding contract with Hunt at $1,550 didn’t you? A. That’s right.”

We sustain appellant’s point that abrogation of the contract by the judgment did not deprive him of the right to be reimbursed for expenditures made on labor and materials, and the judgment is modified so as to allow his recovery of $1500 therefor, as found by the jury.

Appellant’s other points have been considered and are overruled. As modified, the judgment is affirmed. One-fourth of costs on appeal are taxed against appellees.


author: WALTER, Justice.

text:
    U. S. FIDELITY & GUARANTY COMPANY, Appellant, v. Teresa HERNANDEZ, Appellee.
    No. 4055.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 16, 1966.
    Rehearing Denied Jan. 13, 1967.

      Eplen, Daniel & Ames, Wayne B. Ames, Abilene, for appellant.
    Schulz & Hanna, Bob R. Hanna, Yates & Yates, Jack Yates, Abilene, for appellee.
   WALTER, Justice.

ON MOTION FOR REHEARING

Appellee’s motion for rehearing is granted and the judgment rendered on October 14th, 1966 reversing the judgment of the trial court is set aside and the original opinion withdrawn.

Teresa Hernandez recovered a judgment for a general injury under the Workmen’s Compensation Act against United States Fidelity and Guaranty Company. The company has appealed.

It contends the court erred in overruling its exceptions to the pleadings and in refusing two of its requested issues and in overruling its exception to the charge. It also contends there is no evidence and insufficient evidence that the injury to ap-pellee’s fingers and hand extended to and affected her shoulder or neck and that such finding is against the preponderance of the evidence.

The jury found that appellee sustained an accidental injury to three fingers on her right hand and that such injury extended to and affected her shoulder or neck thereby causing incapacity.

There is evidence that Mrs. Hernandez sustained a severe injury to three fingers on her right hand when they were caught in a slicer or grinder when in her language “I was pushing the pecans with my fingers towards the grinder and that’s when the grinder got hold of the fingers.” It is shown that she had no trouble with her neck or shoulder before the injury. She had a good work record before the accident, but has been unable to work since. She testified that she had pain and soreness and stiffness in her neck and shoulder.

Dr. Bray testified substantially as follows : I specialize in orthopedic surgery which involves the diseases that pertain to the bones and joints and related structures. I saw the plaintiff, Mrs. Hernandez, on the date of her injury in the emergency room at the hospital. She had caught her hand in a meat slicer and had some severe injuries to the third, fourth and fifth fingers on her right hand. She was taken to the operating room and the wounds and the dirt cleaned out; the tissue that was obviously destroyed was removed; the bleeding controlled; the fractures, which were multiple were fixed with some little stainless steel wires, to hold them in their correct position and closure of the wounds was made. She was confined to the hospital for about ten days. She developed some stiffness in the shoulder joints and some pain and soreness on movement of the shoulder joints. On March 16, 1964, I took some x-rays of her shoulder. I took some more x-rays of her shoulder about one year after the first ones were made because she was complaining of pain across the shoulder. The x-rays failed to show any evidence of significant bone pathology. I felt that a part of the stiffness of her shoulder was because she tended to concentrate so much on the hand; that she was holding the shoulder still and was not moving and exercising the shoulder enough to keep it limbered up. I felt that part of it was due to this sympathetic reflex mechanism that will tend to cause some stiffness sometimes in the shoulder. Mrs. Hernandez had a stiffness in her shoulder which had its origin in the injury to the hand. That stiffness is gone and she has good active range of motion in the shoulder. The injury to the hand caused the stiffness in the shoulder, but it did not cause.an injury to the shoulder. I think it would be more than pain radiating up to the shoulder as when you hit your finger with a hammer. “There is actual reflex set up and there is coming back over the basal motor reflex and during the time when the shoulder was stiff, why there might even, if you could have taken a bit of the tissue around the shoulder and found some actual microscopic changes in there, due to this other. It is a sort of disease process that is set up. You block the diseased process; the reflex, and get rid of it and everything, with physical therapy, goes back to normal.”

Dr. Tull testified that the injury to the shoulder and neck was caused by the jerk she made when her fingers wre caught in the machine and that she thereby received a whip lash injury. He also testified: “Then, another thing that you have to remember is that having sustained maybe a minor injury of that particular portion of her neck, this condition that she had in her arm, from a sympathetic standpoint; from the nerve flow and so forth, it could have been an extension of it also, which would have involved it both ways.”

In passing on a no evidence point to determine if there is any evidence to support a finding of the jury or an implied finding of fact incident thereto, we must consider only the evidence most favorable to the finding and disregard that which is opposed to it. Renfro Drug Company et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950) at page 613.

Section 20 of Article 8306, Vernon’s Ann.Tex.Civ.St., provides:

“Wherever the terms ‘injury’ or ‘personal injury’ are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.”

We have concluded that there is some evidence of probative force to support the jury’s answers that such injury extended to and affected appellee’s shoulder or neck thereby causing incapacity. Appellant’s no evidence point is overruled.

The court has some discretion in passing on exceptions to the pleadings. No abuse of discretion or injury to appellant is shown. The court did not err in overruling the exceptions. Southern Underwriters v. Hodges, 141 S.W.2d 707 (Tex.Civ.App.1940, writ ref.).

Appellant contends the court erred in overruling its objections to the instructions following issues nineteen and twenty. Said issues and the instructions are as follows:

“SPECIAL ISSUE NO. 19
Do you find, from a preponderance of the evidence, if any, that the injuries are not confined to the fourth, fifth and middle fingers of plaintiff’s right hand?
Answer: ‘They are not confined to the fourth, fifth and middle fingers’ or ‘They are confined to the fourth, fifth and middle fingers’
* * * * * *
In answering the above special issue, you are instructed that an injury is not confined to the fingers if it is continuing and extends to and affects other members of the body.
SPECIAL ISSUE NO. 20
Do you find from a preponderance of the evidence that the injuries are not confined to the plaintiff’s right arm below the elbow?
Answer: ‘They are not confined to the right arm below the elbow’ or ‘They are confined to the right arm below the elbow’.
In answering the foregoing special issue, you are instructed that an injury is not confined to the arm below the elbow if it is continuing and extends to and affects other members of the body.”

It objected to such instruction because it was a comment on the weight of the evidence; it assumed there was a continuing and extended injury and that the court was attempting to instruct the jury that they must answer said issues, “they are not confined to the fourth, fifth and middle fingers and not confined to the right arm below the elbow.”

Appellee contends that such objections were not timely made because they were presented to the court after he had begun to read the charge to the jury. The record shows that the objections were presented to the judge after he had begun reading the charge to the jury.

Rule 272 Texas Rules of Civil Procedure, requires the court to submit his charge to the attorneys for inspection, “and a reasonable time given them in which to examine and present objections thereto, which objections shall in every instance be presented to the court in writing before the charge is read to the jury, and all objections not so made and presented shall be considered as waived. * * * Failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon appeal upon proper exception.” There is nothing in the record to indicate that the court did not give the attorneys a reasonable time to examine the charge. However, we will consider the point and overrule it on authority of Maryland Casualty Company v. Jackson, 139 S.W.2d 631 (Civ.App.1940, Dism. Judg. Cor.).

We have considered the entire record and find that the evidence is sufficient to support the jury’s answer and that the finding that the injury extended to and affected appellee’s shoulder or neck is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant pleaded that appellee’s injury was confined to her right hand and/or to the fourth, fifth and middle fingers on her right hand. Appellant’s requested issues one and two are as follows:

“DEFENDANT’S REQUESTED SPECIAL ISSUE NO. 1
If you have answered Special Issue No. 1 ‘yes’, then you will answer the following Special Issue; otherwise, you need not answer the same.
SPECIAL ISSUE NO. -: Do you find, from a preponderance of the evidence, that such incapacity, if any, was not caused solely by the incapacity to her right arm below the elbow?
ANSWER: ‘It was not’ or ‘It was.’
ANSWER: -.”
“DEFENDANT’S REQUESTED SPECIAL ISSUE NO. 2
If you have answered Special Issue No. 1 ‘yes’, then you will answer the following Special Issue; otherwise, you need not answer the same.
SPECIAL ISSUE NO. -: Do you find, from a preponderance of the evidence, that such incapacity, if any, was not caused solely by the incapacity to her fourth, fifth and middle fingers of her right hand?
ANSWER: ‘It was not’ or ‘It was’.
ANSWER: —--.”

Special issue number one asked if the appellee sustained an accidental injury to the three fingers on her right hand to which the jury answered “Yes.” Obviously appellant did not intend for its requested special issues to be conditioned on an affirmative answer to issue number one because incapacity is not mentioned in that issue. Incapacity is mentioned in several of the issues and the requested issues might have been appropriate if conditioned on one of them. The requested issues were not in substantially correct form as required by Rule 279 T.R.C.P. Gulf, C. & S. F. Ry. Co. v. Jones et al., 221 S.W.2d 1010 (Tex.Civ.App.1949, writ ref. n. r. e.).

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


author: COLLINGS, Justice.

text:
    ELEVENTH STREET BAPTIST CHURCH, Appellant, v. The STATE of Texas, Appellee.
    No. 4150.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 25, 1966.

      Alto V. Watson, Beaumont, for appellant.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   COLLINGS, Justice.

This is a condemnation suit brought by the State of Texas against the trustees of the Eleventh Street Baptist Church of the City of Beaumont. The State sought to condemn .345 acres of land running 259 feet across the front of the church property with a depth of 58.38 feet. The trial was before a jury which found that the market value of the land taken was $10,250.00. The jury found that there was no difference between the market value of the remainder of the defendant’s land before and after the taking; that the value of such remainder both before and after the taking was $128,875.00. The Commissioners had awarded $10,450.00 as the value of the land taken and $4,000.00 as the reduction in market value of the remainder after the taking. Based on the verdict, judgment was rendered for the defendant in the sum of $10,250.00 for the taking of its land. Judgment was further rendered for the State of Texas against the defendant for $4,250.00 because the defendant had withdrawn the money awarded by the Commissioners from the registry of the court. The defendant has appealed.

Appellant presents points complaining of the finding of the jury in answer to issue number 3 to the effect that the market value of the remainder of the land after the taking was $128,875.00, the same as the value before the taking. Appellant contends that such finding is against the great weight and preponderance of the evidence and that the judgment rendered thereon is wrong, as a matter of law; that some damage necessarily occurred to the remainder of appellant’s property by the taking of the front portion thereof which had been used as space for parking automobiles in connection with use of the remainder.

The record shows that appellant, Eleventh Street Baptist Church, had its first connection with this property in 1952 when the church consisted of forty members and the property was purchased. At the time of the trial the membership was 240. The property was used for the sole purpose of the Church. The tract ran 259 feet on Eleventh Street and was 192.1 feet deep. Appellant asserts that the tract was then large enough to contain the master building plan for the development of the church and provide sufficient parking space with no room to spare. The main building or sanctuary of the church was built by the members soon after the purchase of the property. It was the plan of the church to add wings to the sanctuary on the east and west, each to be 40 by 60 feet. The east wing was first constructed, and in 1957 this 40 by 60 feet east wing was enlarged so that it was 40 by 78 feet and came within twenty feet of the east property line. There was evidence to the effect that if the church had been able to continue with its plans the west wing of 40 by 60 feet would eventually have been added and that it would come to within 38.5 feet from the west line of the property. The strip taken was 259 feet long by approximately 58 feet deep off the front of appellant’s property. Appellant asserts that the remaining tract was not large enough for the master building plan and to provide sufficient parking space for the operation and planned growth of the church.

Concerning the market value of the remainder of appellant’s property after the taking there was evidence both in favor of and contrary to the verdict of the jury. Expert witnesses were called by appellant and appellee. The expert witness for appellant testified in effect that the market value of appellant’s remaining property was $17,060.00 less after the taking of the strip off the front than before the taking. He stated the opinion that about 84 cars could be parked on the property before the taking but that after the taking there was parking space available for only about 58 automobiles. The witness admitted, however, that with the proposed frontage road of the new highway facility constructed with curbs and gutters more automobiles could be parked along the 259 feet curb, although he believed this was not in the best interest of safety.

Appellee’s expert witness testified that in his opinion the remainder of appellant’s land after the taking of the strip off the front had a market value which was the same as the value of such remainder before the taking, that is, $128,875.00. He testified that there was no decrease in value of appellant’s remaining property after the taking by reason of loss of parking space. He stated that the parking space available after the taking would accommodate as many as 60 automobiles. He stated that an actual count of parked automobiles at the church during November and December, 1963, and January, 1964, during the principal Sunday 11:00 services showed that there were never more than 27 cars parked on such premises. He asserted that the area available for parking on appellant’s remaining land is adequate for appellant’s present needs and is also adequate for its needs in the reasonably foreseeable future.

The record shows that the values found by the jury were within the limits testified to by the witnesses. The jury was the judge of the credibility of the witnesses and of the weight to be given their testimony. There was certainly some evidence in support of the finding of the jury in answer to special issue number 3. We overrule appellant’s point to the effect that the judgment rendered is wrong as a matter of law. In passing upon appellant’s point contending that the answer to special issue number 3 is against the great weight and preponderance of the evidence, we have considered the entire record and are of the opinion that the point should be overruled.

In appellant’s fifth point it is urged that there was jury misconduct requiring a reversal of the judgment in that the foreman of the jury during its deliberation stated that they could not compromise between the opinions of the two appraisers, but must find all the way with one or the other; that such error was aggravated by the refusal of the court to give needed and required instructions as requested by the jury. At the hearing of the motion for a new trial one of the jurors testified, in effect, that the foreman told the other jurors that they had to find a value of the property in accord with what either Mr. Brimlow, one of the appraisers said, or with what Mr. Hall, the other appraiser said. The juror stated that some of the jurors wanted to compromise between the two appraisers and disputed the contention urged by the foreman; that as a result the following message was sent to the court: “In considering these issues should we take each appraiser’s figures separately, or can we use one or the other, in answering each issue?” The judge thereupon replied in writing as follows: “You will be guided by the charge given you by the court.” In the court’s charge the jurors were instructed that “You are the exclusive judges of the facts proved, the credibility of witnesses, and the weight and value to be given their testimony; but the law of the case you will receive from the court in this charge — and you will be governed thereby.”

It is apparent that the foreman’s expressed views to the effect that the jury must accept in full the position of one or the other of the appraisers was a legally erroneous interpretation of the court’s charge. The other jurors disagreed with the foreman’s contention and a letter was sent to the trial judge who answered by referring the jury to the charge to the effect that the jury was the exclusive judge of the facts proved, the credibility of the witnesses and the weight to be given to their testimony. No reversible error is shown and appellant’s fifth point is overruled. Gulf, C. & S. F. Ry. Co. v. Johnson, 99 Tex. 337, 90 S.W. 164; Compton v. Henrie, 364 S.W.2d 179 (Tex.Sup.Ct.); Adams v. Houston Lighting and Power Company, 158 Tex. 551, 314 S.W.2d 826 (Tex.Sup.Ct.).

In appellant’s third point it is contended that the court erred in refusing to allow appellant’s witness Paul Brimlow to testify to the details of a comparable sale of a portion of the property of the Northwood Christian Church to the con-demnor. Appellee’s counsel was permitted to examine Mr. Brimlow on voir dire and elicited information that the comparable sale which he referred to was made under threat of condemnation. This point is overruled. It is held that prices paid for property by the condemning authority are not admissible to establish the market value of other property being condemned because such sales are not free and voluntary. Menchaca v. San Antonio Independent School District, 297 S.W.2d 363, (Tex.Civ.App.1956), writ dismissed; Robards v. State, 285 S.W.2d 247, (Tex.Civ.App.1955), refused n. r. e.; State of Texas v. Curtis, 361 S.W.2d 448, (Tex.Civ.App.1962), refused n. r. e.

We overrule appellant’s 4th point in which it is contended that reversible error is shown in that the jurors, during their deliberation, discussed the fact that the award “would raise the jurors’ taxes.” On the hearing of the motion for a new trial one of the jurors testified that “taxes were mentioned.” He stated that he mentioned the fact that the Federal Government would probably pay a part of the cost and that it was then mentioned once or twice by others that his taxes would be raised. Another juror testified that the first witness asserted during the jury deliberations that this was an instance of a “big shot trying to take the underdog”, and that still another juror replied saying: “Big shot? What do you mean? We are tax payers.” The jurors certainly must have known that any award of damages would be paid out of tax money. The mere mention of that fact during jury deliberation is not such misconduct as requires a mistrial. In our opinion the mere mention of the fact that an award of damages would be paid out of tax money does not under the circumstances show that appellant was denied the fair and impartial trial which it was entitled to under the law. Appellant’s 4th point is overruled.

The judgment is affirmed.


text:
    W. J. SELDON et al., Appellants, v. S & S AGGREGATES COMPANY, Appellee.
    No. 4112.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 25, 1966.
    Rehearing Denied Dec. 23, 1966.

      House, Mercer, House & Brock, R. L. House, San Antonio, Rountree, Renner & Snell, Robert B. Snell, Lamesa, for appellants.
    Harris, Anderson, Henley, Shields & Rhodes, C. A. Searcy Miller, Dallas, Cayton & Gresham, Willis E. Gresham, Jr., Lamesa, for appellee.
   WALTER, Justice.

S & S Aggregates Company filed suit against W. J. Seldon and Fidelity and Deposit Company pursuant to Article 5160 of the Vernon’s Ann.Texas Civil Statutes, known as the McGregor Act. Seldon was the general contractor on some highway projects in Dawson County. Fidelity and Deposit was surety on his bond.

W. N. Fulfer was a subcontractor. Ful-fer entered into a lease agreement with S & S for some equipment which he used on the highway projects. Fulfer did not make the rental payments required by the lease and S & S filed suit.

All parties filed motions for summary judgments. Seldon and Fidelity and Deposit’s motions were overruled and S & S’ motion for summary judgment was granted on liability but overruled on the reasonable rental value of the equipment.

Thereafter, the cause proceeded to trial and issues on the reasonable value of the equipment and attorneys’ fees were submitted to the jury. The jury answered that $2500.00 was a reasonable monthly cash rental for the machinery and $1675.00 would be a reasonable attorneys’ fee. Judgment was rendered in favor of S & S for $9,166.66 plus $1675.00 attorneys’ fees. Seldon and Fidelity have appealed.

They contend that the court erred in granting summary judgment because proper notices were not given as required by Article 5160; because the pleadings and evidence raised issues of fact covering the rental period from September 9 to September 29, 1965 and because proper notices were not given under the statute for payments due for July 9,1965 to August 9,1965. They also contend the court erred in failing to grant their motions for summary judgment.

We find no merit in appellants’ contention that the court erred in failing to grant their motions for summary judgment. They contend the agreement Fulfer executed to S & S was a conditional sales contract, or a chattel mortgage, and that a mortgagee is not protected under the McGregor Act.

The equipment lease contained the following purchase option:

“PURCHASE OPTION: At any time after September 9, 1965, if Lessee has paid in full all rentals owing hereunder and he not then in default hereunder, Lessee shall have the option to purchase said equipment upon giving written notice not less than 30 days prior to expiration of the original term hereof. The purchase price shall be $50,000.00 less 94% of rentals paid and providing that the balance be paid in cash.”

Under Section (3) of Subdivision (b) of Subdivision C of Article 5160, Tex.R.C.S. material is to be contrued to mean any part or all of the following:

“(3) Rent at a reasonable rate and actual running repairs at a reasonable cost for construction equipment, used in the direct prosecution of the work at the project site, or reasonably required and delivered for such use.”

Appellants filed the affidavit of W. J. Seldon in support of their motions. He swore the lease was recorded in the chattel mortgage records of Dawson County and concluded that by filing the instrument “the plaintiff recognized said instrument as a chattel mortgage.”

S & S filed an affidavit in opposition to the motion in which it was asserted that the option to purchase was never exercised by Fulfer, and that Seldon and Fulfer used said equipment and that Seldon made payments to S & S on behalf of Fulfer.

The record does not show as a matter of law that the equipment lease is a chattel mortgage. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup.Ct.1965).

We are of the opinion that the court erred in granting appellee’s motion for summary judgment. In support of its motion S & S filed the affidavit of its Vice-President and employee G. Schuyler Rice, in which it attempted to show that proper notices were given to Fulfer and appellants.

Section (a) of Subdivision B of Article 5160 provides:

“(a) Notices Required for Unpaid Bills, other than notices solely for Retainages as hereinafter described.
Such claimant shall have given within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. Such notices shall be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed. Such statement of account shall include therein the amount of any retainage or re-tainages applicable to the account that have not become due by virtue of terms of the contract between the claimant and the prime contractor or between the claimant and a subcontractor. When the claim is based on a written agreement, the claimant shall have the option to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.”

and Sections (1) and (2) of Subdivision (b) of Article 5160 provides:

“(1) If any agreements exist between the claimant and any subcontractors by which payments are not to be made in full therefor in the month next following each month in which the labor was performed or the materials were delivered or both, such claimant shall have given written notice by certified or registered mail addressed to the prime contractor at his last known business address, or at his residence, within thirty-six (36) days after the 10th day of the month next following- the commencement of the delivery of materials or the performance of labor that there has been agreed upon between the claimant and such subcontractors such retention of funds. Such notice shall indicate generally the nature of such retainage.
(2) Such Claimant shall have given written notice by certified or registered mail as described in the preceding sub-paragraph B(b) (1) to the prime contractor within thirty-six (36) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material delivered, in whole or in part, that payment therefor has not been received. A copy of the statement sent to the subcontractor shall suffice as such notice.”

Appellants replied that the agreement was a chattel mortgage not covered by the Mc-Gregor Act; that appellee waived any claim of title other than as a mortgagee by recording the instrument in the chattel mortgage records of Dawson County and by filing suit against Fulfer for conversion. They further asserted payment of $2500.00 of the amount sued for, by Seldon’s check No. 874 for the June 9, 1965 payment. This reply was verified by Seldon.

The court granted appellee’s motion for summary judgment on liability “after considering the pleadings, affidavits on file herein and arguments of counsel.”

One of the principles sought to be established by the Supreme Court in Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961) was that there is no place in a summary judgment proceeding for the taking of testimony. “Pleadings, deposititions, admissions on file and affidavits are mentioned as the proper basis for judicial action under the rule.” Toliver v. Bergmann, Tex.Civ.App., 297 S.W.2d 208 (no writ history). In this case both parties seek to bolster their positions by referring to the testimony introduced in the trial on the merits and by deposition testimony introduced on the motion for a new trial. We believe that the propriety of granting the motion for summary judgment on liability must be determined from the pleadings and affidavits on file at the time the court granted such motion.

National Surety Corporation v. Standard Concrete Pipe Sales Company, Tex.Civ.App., 366 S.W.2d 103 (no writ history) was a summary judgment case by a material-man against a general contractor and the surety on a bond executed under Article 5160 R.C.S. The Court said:

“Appellant contends that proof that a written notice was given is not sufficient to establish that such notice complied with the requirements of Art. 5160, R.C.S., and that such proof was necessary to establish that there is no fact issue in this case. If it would have been necessary for the plaintiff in the trial court to prove the contents of the written notice given appellant in order to show himself entitled to an instructed verdict, the trial court erred in granting this summary judgment. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492. The burden rests with the movant to show that there is no disputed fact issue. Box v. Bates [162 Tex. 184] 346 S.W.2d 317.
We cannot say that the only reasonable inference to be drawn from the undisputed fact that a written notice was given to appellant by appellee is that all of the facts and instruments required by the provisions of Art. 5160, R.C.S., were contained in such notice. Bliss v. City of Ft. Worth, Tex.Civ.App., 288 S.W.2d 558, writ ref., n. r. e. Since the requisite facts showing that a legally sufficient notice of claim was given appellant was not presented to the trial court by affidavits, depositions, admissions or otherwise, appellant was not under any burden to contravene the allegations in the motion for summary judgment”.

We hold that Rice’s affidavit asserting that written notices were given to appellants does not establish as a matter of law that all the facts and instruments required by the provisions of Article 5160 R.C.S. were contained in such notices.

Also, it appears that Rice was an interested witness. “The general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the Jury.” Taylor & Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, (1960). The exception to this rule was applied in Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Sup.Ct.1965). The record in this case does not warrant application of the exception.

The judgment is reversed and the cause is remanded.


author: NORTHCUTT, Justice.

text:
    INTERNATIONAL SHOE COMPANY, Appellant, v. MARCUS, INC., Appellee.
    No. 7664.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1966.
    Rehearing Denied Jan. 16, 1967.
    Thomas J. Griffith, Jr., Lubbock, for appellant.
    J. R. Blumrosen, Lubbock, for appellee.
   NORTHCUTT, Justice.

This suit was originally filed by the plaintiff, International Shoe Company, a corporation, against the defendant, Marcus, Inc., a corporation, to recover for its damages on account of merchandise sold to the defendant by the plaintiff. Thereafter the plaintiff in July 1964 filed its First Amended Petition making Marcus Rosenwasser a party defendant and seeking judgment of and against Marcus, Inc. and Marcus Ros-enwasser, jointly and severally. The defendant, Marcus Rosenwasser, filed his plea in abatement contending the plaintiff was estopped to pursue a claim against him as an individual because therefor the plaintiff had made an election and had sought recourse by the plaintiff in its suit against this defendant as an individual by filing a claim in bankruptcy in the United States District Court for the Northern District of Texas, Lubbock Division, in the matter of Marcus, Inc.

On the hearing of the plea in abatement the parties made and entered into an agreed statement of the case and presented the same to the trial court for his consideration in passing upon said plea. That part of the agreed statement of the case concerning the issue here involved is as follows :

“This suit was instituted by International Shoe Company as plaintiff by filing its original petition on December 20, 1963, against the defendant, Marcus, Inc. only for breach of contract. The defendant, Marcus, Inc., answered with general exception and general denial.
“Thereafter, on the 3rd day of February, 1964, the defendant, Marcus, Inc., filed its voluntary petition in bankruptcy before the Referee in Bankruptcy for the Lubbock Division, Northern District of Texas, United States District Court, No. BK-5-31. The petition in bankruptcy listed International Shoe Company as a creditor in the same amount sought by International Shoe Company in its original petition filed on December 20, 1963, and for the same amount which International Shoe Company sought in its first amended petition which was filed on or about July 22, 1964, against not only Marcus, Inc., but against Marcus Rosen-wasser, an individual. Said amended petition claimed in substance that the corporation was merely an alter ego of Marcus Rosenwasser.
“Upon notice to International Shoe Company, a claim for the amount of debts sought in the suit was perfected by International Shoe Company, filing claim as a general creditor, and International Shoe Company appeared by its attorney before the bankruptcy court, where its attorney was the chief antagonist of the corporation in bankruptcy, asking more questions than any other interested party.
“The corporation was adjudicated bankrupt by the court, and a Trustee was appointed in bankruptcy. No dividend has ever been paid to creditors; however, the Trustee in bankruptcy has announced that he anticipates making a first and final distribution to general creditors of 14.6 per cent, which sum will evidently be paid by no later than April 30, 1966, to all the general creditors, which includes International Shoe Company.
“That in discussion before the Court, International Shoe Company made the allegation that the corporation in bankruptcy had never made an application for discharge; the attorney for Marcus, Inc. stated that he thought an application had been made for discharge of the corporation. For whatever benefit it might be worth to the Court, a subsequent check of the records in BK-5-31 styled Marcus, Inc. in bankruptcy of the Referee in bankruptcy reveal that an application for discharge was filed by Marcus, Inc. on the 25th day of February, 1964. That the bankruptcy court sent out notices to all the creditors that they had until April 20, 1964, to file objections, if any, to discharge of the bankrupt. No protest has ever been filed by any creditor to discharge of the bankrupt and more especially none was filed in the time prescribed by the Referee in bankruptcy. That an order actually has been entered discharging the corporation in bankruptcy. That as mentioned above, the plaintiff, International Shoe Company, filed its first amended petition on or about July 22, 1964, alleging joint and several liability against the defendants, Marcus, Inc. and Marcus Rosenwasser, an individual, as is reflected by the transcript of the proceedings herein.
“The defendants, Marcus, Inc. and Marcus Rosenwasser, an individual, joined issue upon their first amended answer, which answer is reflected by transcript of proceedings herein.
“Upon pretrial hearing, the Court determined upon the foregoing statement of facts that final judgment should be rendered in favor of Marcus Rosenwasser, an individual, and against the plaintiff as is reflected by the order of the court included in the transcript herein.”

Judgment was entered by the trial court that the plaintiff, International Shoe Company, take nothing from defendant, Marcus Rosenwasser, and that he go hence with his cost. From that judgment the plaintiff perfected this appeal upon one point of error as follows:

“The trial court erred in holding before trial that Appellant made an election of remedies by filing a claim for debt in bankruptcy proceedings of a corporation that barred a pending suit for debt against an individual who was jointly and severally liable, but not bankrupt.”

We are of the opinion and so hold that since Marcus, Inc. had gone into bankruptcy and the plaintiff had filed its claim in the bankruptcy proceedings, it had entered its claim in that proceeding and that the Referee in Bankruptcy was entitled to the exclusive right to proceed against Ros-enwasser for his liability to the corporation for the benefit of all parties interested in its assets if any such liability existed.

In determining whether the appellant made an election we must determine if there were inconsistent remedies requiring an election. We think there was. The appellant,, in other words, had to make an election whether it considered the corporation owed it for the merchandise sold or whether the corporation and Rosenwasser were the same; i. e., that the corporation was Ros-enwasser’s alter ego and Rosenwasser owed the bill.

In other words, the appellant by filing its claim in the bankruptcy proceedings contended that Marcus, Inc., as a corporation, owed the appellant. Although notice was given to appellant that it had until April 20, 1964, to file objections, if any, to the discharge of Marcus, Inc. the appellant made no objections and an order was entered discharging Marcus, Inc. in bankruptcy. The indebtedness had been declared as the indebtedness of Marcus, Inc. and has been disposed of as being discharged.

It seems to be well settled as a rule in this state that an election of remedies arises when a party has two or more inconsistent remedies and chooses to exercise one of them in such case he abandons his right to exercise the other remedy or remedies. Jones v. Jeffreys, 244 S.W.2d 924 (Tex.Civ.App.-Dallas, 1951, writ dism’d); Simmons v. Clampitt Paper Co., 223 S.W.2d 792 (Tex.Civ.App.-Dallas, 1949, ref’d nre); Employers Reinsurance Corp. v. Wagner, 250 S.W.2d 420 (Tex.Civ.App.-Galveston, 1952, ref’d nre); Van Sickle v. Locke, 220 S.W.2d 919 (Tex.Civ.App.-Dallas, 1949, ref’d nre) and the many cases cited in each of these cases.

We think the appellant made its election as it was required to do. It elected to proceed in the bankruptcy matters and have its claim established against Marcus, Inc. and never at any time until the bankruptcy proceedings were closed contended Rosen-wasser was the real party indebted to it.

Judgment of the trial court is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    PETROLEUM ANCHOR EQUIPMENT, INC., Appellant, v. William D. TYRA, Sr., et ux., Appellees.
    No. 16491.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1966.
    Rehearing Denied Dec. 23, 1966.

      Burford, Ryburn & Ford, Spencer C. Relyea, and John L. Estes, Dallas, for appellant.
    Baker, Jordan, Shaw & Foreman, Russell M. Baker, and Edwin L. Davis, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Action by Petroleum Anchor Equipment, Inc., against William D. Tyra and wife, Dorothy B. Tyra, seeking equitable relief by way of injunction and cancellation of two written instruments designated as Assignments of Application for Letters Patent covering an invention described as a screw type earth anchor and pipeline saddle, a device utilized in anchoring pipelines laid in marshy terrain. The essential facts and material pleadings are set forth in our original opinion in this case. Petroleum Anchor Equipment, Inc. v. Tyra, Tex.Civ.App., 392 S.W.2d 873. In that opinion we held that the cause should be reversed because of the absence of an indispensable party, Luther S. Fite. The Supreme Court disagreed holding that Fite was a “conditionally necessary party” but not an indispensable party. Petroleum Anchor Equipment, Inc. v. Tyra, Sr., et ux., Dorothy B. Tyra, Tex.Sup.Ct., 406 S.W.2d 891. The case has been referred back to us for consideration of the points advanced by appellant.

In response to special issues the jury found (1) that the Board of Directors of Petroleum Anchor Equipment, Inc., did not pass the resolution on or about January 8, 1963 (being a corporate resolution authorizing W. A. Moss, as President and General Manager to purchase and sell property of the corporation); (2) that the Application for Letters Patent constituted substantially all of the property and assets of Petroleum Anchor Equipment, Inc., on February 14, 1963; (3) that consideration did not pass to Fite when he transferred the Application for Letters Patent to Petroleum Anchor Equipment, Inc., on April 7, 1962; (4) that the Board of Directors of Petroleum Anchor Equipment, Inc., after January 8, 1963 were informed as to the contents of the instrument identified as “Plaintiff’s Exhibit 18” (being the corporate resolution inquired about in Special Issue No. 1); (5) that the Board of Directors of Petroleum Anchor Equipment, Inc., after learning of the contents of Plaintiff’s Exhibit No. 18” failed to act as ordinary prudent persons would have acted under the same or similar circumstances.

Based upon this verdict the trial court rendered judgment against appellant, thereby decreeing title and ownership of the Application for Letters Patent to vest in appellees.

Appellant assails the judgment in twelve points of error. Appellees have objected to our consideration of appellant’s points because same are too general, do not point out the particular error complained of, and are multifarious. Appellant’s points are indeed, broad, general and often multifarious. But we have elected to consider appellant’s points as we understand them and as disclosed in the statements and arguments accompanying same. Moore & Moore Drilling Co. v. White, Tex.Civ.App., 345 S.W.2d 550; Red Fish Boat Co. v. Jarvis Press, Inc., Tex.Civ.App., 361 S.W.2d 588.

Appellant’s first and second points complain of the action of the trial court in submitting to the jury Special Issue No. 3 and in not disregarding the jury’s answer thereto because there was no evidence, or insufficient evidence, to support the jury’s answer thereto. The issue under attack inquired whether consideration passed to Fite from Petroleum Anchor Equipment, Inc., for the transfer of the Application for Letters Patent on or about April 7, 1962. The jury answered that “Consideration did not pass” to Fite.

Appellant’s “no evidence” or “insufficient evidence” points require a careful review of material evidence on the question in the light of the familiar rules promulgated by our Supreme Court. The facts material to the resolution of the question, as well as other points discussed hereafter, are somewhat complex and do not yield to a simple statement.

Prior to 1960 W. A. Moss was Vice-President and Division Manager of A. B. Chance Company of Centralia, Missouri, which company manufactured and sold a type of utility anchor used to overcome buoyancy in pipelines laid in marshy areas. Joe Gardner was a salesman for Chance. Moss resigned from A. B. Chance Company and approached Joe Gardner with the idea of forming a new company to sell pipeline anchors. Moss and Gardner, whose home was Natchez, Mississippi, approached the stockholders of Natchez Steel Products (hereinafter called Natchez), a manufacturing corporation located in Natchez, with the idea of manufacturing the anchors. Prior to leaving Chance, Gardner had, on several occasions, discussed technical improvements of the Chance anchor with Luther S. Fite, then president of Natchez, and several of the improvements suggested by Fite were actually used in the new anchor. Fite was not only president but the owner of one-third of the stock of Natchez, which company was not in too good financial condition at the time. The stockholders of Natchez desired to take on the new endeavor and it was agreed that Natchez would manufacture the anchors and that a new corporation, Petroleum Anchor Equipment, Inc. (hereinafter called Petroleum), would be formed to sell the anchors.

On June 30, 1960 Petroleum was incorporated and of the original 2,000 shares, 500 shares were issued to Moss, 500 shares to Gardner, and 1,000 shares issued to Natchez. The testimony relating to the formation of Petroleum is undisputed. However, a great deal of the testimony concerning the affairs of the corporation after its formation is conflicting. Especially conflicting is the evidence concerning the acquisition by Petroleum of the Application for Letters Patent in question covering what is commonly referred to in the record as the “Natchez” or “Saddle” anchor. Fite claims sole credit for the idea of the new anchor which appears to be an adaptation of the Chance anchor. An Application for Letters Patent covering the anchor was filed by Fite with the United States Patent Office in Washington on October 20, 1960. Subsequently, on June 22,1961 and again on April 7, 1962, Fite executed assignments of this application to Petroleum. The assignment dated June 22, 1961 did not contain a description of the patent and was never recorded with the Patent Office. Fite testified that on and prior to June 22, 1961 he and Natchez had judgments pending against them and that he was asked by Gardner to transfer the Application for Letters Patent to Petroleum to keep the property out of the reach of his creditors. He further said that he was promised that the assignment would not be recorded but would be held in trust for him. He said that no consideration of any kind was paid to him for this assignment. Following the 1961 assignment Fite incurred additional judgments against him. He testified that he was approached by Gardner and persuaded to execute a second assignment to Petroleum on April 7, 1962. He related that this assignment was to be curative of the first so as to supply the necessary description of the patent application. Fite testified that, like the first assignment, this one was to be held in trust by the corporation and no consideration passed to him. The second transfer was recorded with the Patent Office on April 17, 1962.

N. L. Carpenter, the original treasurer of Petroleum, as well as two other officers of the corporation, Truly and Foreman, testified that upon the formation of the corporation Fite had agreed that the corporation should have title to the application and that the two assignments were in furtherance of that agreement.

Foreman testified that Fite agreed to transfer the Application for Letters Patent covering the Natchez anchor to Petroleum because he would benefit by any increased profits accruing to Natchez from the manufacture and sale of the Natchez anchor. Truly testified that Petroleum owed Natchez approximately $750 for expenses incurred in connection with the development of the anchor, and in addition, that it expended over $200 in legal fees relating to the Application for Letters Patent.

At the time of the second transfer to Petroleum on April 7, 1962 Fite was not in a supervisory capacity with Natchez nor was he a stockholder in that company. At that time he was not a stockholder or a director in Petroleum. He received no compensation for his services from Petroleum. Truly testified that Petroleum did not at any time promise to pay Fite any royalty for his patent application. Petroleum has sold over $300,000 in Natchez anchors. It is undisputed that Fite has not received any royalty or other remuneration from this transfer.

There are no pleadings nor evidence that Fite made a gift of the application to Petroleum.

Moss substantiated Fite’s testimony concerning the judgments against Fite and against Natchez, and the fact that Petroleum was to hold title to the Natchez patent in trust for Fite. Moss later, while acting as president of Petroleum, transferred the patent of the Natchez anchor to Fite because he said "from a standpoint of principle, I thought this was Mr. Fite’s property and should be returned to him.”

Appellant relies heavily on the argument that consideration to Fite is demonstrated by the record as a matter of law and therefore a fact issue should not have been presented to the jury. An examination of the record, as above summarized, refutes this argument.

Appellant’s “no evidence” or “insufficient evidence” points must be overruled on the basis of the record. Clear-cut issues of fact were presented, supported by adequate evidence, and such facts were resolved against appellant by the jury. Appellant concedes that Fite received no money or property as consideration for the assignment, other than possibly advancements of expenses in connection with the application. In this connection Fite admitted that some of the expenses were paid for by Natchez but that same were charged to his account. Appellant concedes also that any expectation on the part of Fite to receive profits as a result of the assignment were not fulfilled. We believe that when the record is viewed in its entirety that appellant’s points 1 and 2 are without merit.

In its second group of points appellant says that even if Issue No. 3 is supported by evidence the answer thereto should be disregarded because: (a) the presence or absence of consideration of the contract is immaterial; (b) there is no jury finding that Fite’s earlier assignment dated June 22, 1961 was not supported by consideration; and (c) there are no pleadings to support the submission of Special Issue No. 3.

We cannot agree with appellant’s contention that consideration is unnecessary or immaterial. One of the fundamental rules of the law of contracts is that which declares that every contract must be supported by consideration. 13 Tex.Jur.2d, Contracts, § 41, p. 167. Appellees alleged defensively that there was no consideration for the transfer of the application and such plea amounted to a contention that the assignment never became valid in the first instance. Nat’l Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691 (1935). It is well settled that for an instrument to operate as an assignment of a patent, or an interest therein, that the same must be supported by valuable consideration. 69 C.J.S. Patents § 231, p. 746.

We see no merit in appellant’s contention that its ownership of the assignment is predicated upon the instrument dated June 26, 1961. As shown above, this instrument could not be legally regarded as an assignment of a patent application since it obviously falls short of the requirement of the federal statutes with respect to such application. Title 35, Sec. 261, F.C.A. The instrument does not adequately define the invention and bore no patent application number which would make it susceptible of identity as contemplated by the patent laws. Moreover, the plaintiffs themselves obviously did not consider the first instrument sufficient for they entered into the second assignment inquired about by the court in Special Issue No. 3, dated April 7, 1962. This instrument was complete and in accordance with the patent laws. We think that these two instruments, under the record here made, are controlled by the rule of law which provides that where two instruments are made, even at different times, as a part of one transaction, they will be considered together. Board of Insurance Commissioners v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803.

Appellant’s final assault in these points based upon lack of pleadings must likewise be overruled. Appellant’s argument is that appellees’ failure to verify their pleadings of want of consideration forecloses any question of consideration being presented to the jury. While it is true that appellees did not verify their pleading of lack of consideration of the assignment of patent rights, this defect in the pleading was not raised by special exception. The defect was presented for the first time in appellant’s motion for judgment non obstante veredicto. Rule 90, Vernon’s Texas Rules of Civil Procedure, provides that every defect, omission or fault in a pleading which is not specifically pointed out by motion or exception in writing and brought to the attention of the trial court before the charge is read to the jury is deemed to have been waived. Shaw v. Porter, Tex.Civ.App., 190 S.W.2d 396; Helms v. Day, Tex.Civ.App., 215 S.W.2d 356; Texoma Broadcasting Co. of Wichita Falls v. Darter, Tex.Civ.App., 296 S.W.2d 277.

Appellant’s points 3 and 4 are overruled.

By its points 5 through 11, grouped for presentation, appellant complains that the trial court should not have submitted Special Issue No. 4 or should have disregarded the jury’s answer thereto. As to Special Issue No. 5 appellant says that the trial court should not have submitted the same or should have disregarded the jury’s answer thereto and that such answer is not supported by any evidence or the evidence is insufficient to support same. In its eleventh point appellant says that the trial court erred in “overruling plaintiff’s objections and exceptions to the charge of the court as a whole.”

We overrule appellant’s eleventh point for the reason that the same is obviously too broad and too general and there is nothing in the argument contained thereunder to indicate the specific point relied upon.

While appellant’s points 5 through 10 are extremely general we gather from the statement thereunder that they are primarily directed towards appellees’ defense of estoppel. On February 14, 1963 Moss, as president of Petroleum, executed a bill of sale of the Application for Letters Patent covering the Natchez anchor to Fite. On March 7, 1963 Fite conveyed the application to appellees. Appellees defend their contention of ownership upon the proposition that the hill of sale by Moss was authorized by and pursuant to the resolution passed by the Board of Directors at its January 8th meeting. The jury found that this resolution was not, in fact, passed. Even so, appellees contend that because the directors of Petroleum did not act promptly to rescind the resolution, nor did it act at all until July 11, 1963, appellant corporation was estopped from asserting the invalidity of the transfer of the assignment.

The record is in dispute concerning the passage of the January 8, 1963 resolution granting Moss comprehensive powers relating to the corporate property and also concerning the knowledge of the corporate officers concerning such resolution and the minutes of the corporation dealing therewith. Moss testified that shortly after the meeting of January 8, 1963 he prepared the minutes of the stockholders’ meeting as well as directors’ meeting reflecting action concerning the resolution and that he, on February 15, 1963, submitted same to Mr. Foreman, secretary of the corporation, for his signature, and that Foreman executed the minutes in his presence. The resolution itself bore the signature of Mr. Foreman and Moss testified that he had this instrument photostated on February 15, 1963. Foreman testified that the first time he saw the resolution of January 8, 1963 was shortly before the July 11, 1963 meeting of the Board of Directors.

It is undisputed that the transfer of patent application from Moss, as president of Petroleum, to Fite was executed on February 14, 1963 and this instrument has attached to it a copy of the resolution of the Board of Directors of January 8, 1963 signed by both Moss, as president, and Foreman, as secretary. This instrument was not recorded in the United States Patent Office until March 21, 1963. On March 7, 1963 Fite assigned the application to ap-pellees, said instrument being recorded in the United States Patent Office on April 11, 1963.

Foreman testified that in the early part of June 1963 he was advised of the transfer of the patent application from Petroleum to Fite. Appellant corporation also was informed of the transfer of title to appellees in June 1963. Board of Directors’ meetings of the appellant corporation were held on March 21, 1963 and on March 29, 1963, but it was not until the meeting of the board, on July 11, 1963 that the directors of appellant corporation adopted a resolution rescinding the prior resolution of January 8, 1963. On September 13, 1963 appellant filed suit against appellees alleging a conspiracy between Moss, Fite and William D. Tyra and asking cancellation of the assignments. Prior to presentation of evidence appellant abandoned its contention of conspiracy as related to the Tyras and no evidence of such conspiracy was tendered.

In answer to Special Issues Nos. 4 and 5 the jury found that the Board of Directors of appellant corporation had knowledge of the resolution of January 8, 1963 and that after learning of the contents of said resolution it failed to act as ordinary prudent persons would have acted under the same or similar circumstances. Our examination of the record reveals ample evidence to support the jury’s answers to these issues.

Appellant’s sole argument under these points is that the doctrine of estoppel is not applicable under these facts. It is contended that there is no proof or jury finding that appellees relied upon any statement or representation made by appellant to their loss or damage in purchasing the application.

A purchaser of a patent has a right to rely on the record title thereto. 48 C. J., Patents, § 233, p. 250. The record is undisputed that at the time appellees placed their bill of sale to the patent application on record with the United States Patent Office that such office records revealed title into Fite. The record is also undisputed that at the time appellees purchased the application from Fite and recorded same Fite’s title thereto was supported by an unchallenged resolution of the Board of Directors of appellant corporation executed by the president and secretary. Obviously what appel-lees relied upon was the recorded conveyance from appellant to Fite and the fact that no attack had been made by appellant corporation upon the sale to Fite.

The doctrine of estoppel will apply against the real owner of personal property where he clothes the person assuming to dispose of the property with the apparent title to it or with apparent authority to dispose of it. When one acts or parts with value or extends credit on the faith of such apparent ownership or authority he may invoke the equitable doctrine of estoppel. 19 Am.Jur., Estoppel, § 68, p. 696.

Based upon conflicting evidence the jury was justified in finding that while the January 8, 1963 resolution was not actually passed by the Board of Directors of the corporation, yet the corporation, through its officers, was made aware of the existence of such resolution and thereafter failed to act as ordinary prudent men would have acted under the same or similar circumstances. In the state of this record we find a classic illustration of the applicability of the doctrine of equitable es-toppel. As this court held in Knowles v. Northern Texas Traction Co., 121 S.W. 232:

“A corporation, like an individual, is bound by the acts of its agent, expressly or impliedly authorized by it. It may become bound by a ratification of unauthorized acts of its agents without any formal action for that purpose by its board of directors. It may ratify by passive acquiescence as well as by affirmative action. Its acquiescence, with knowledge, proven or which should be inferred, if continued for a considerable time, will operate as a ratification. When knowledge is brought home to the corporation of the unauthorized acts of its agent, it must promptly disavow it, otherwise, it will be held to have ratified the unauthorized act and so to have made it its own.”

The facts related above illustrate that the corporation had knowledge of the questioned resolution in February of 1963, and further, had knowledge, in June of 1963, relating to the assignments of the patent application but it was not until September 13, 1963 that legal redress was sought against appellees. Such action negates the idea of prompt disavowal of unauthorized acts of corporate agent.

Our Supreme Court in Johnson v. Sovereign Camp, 125 Tex. 329, 83 S.W.2d 605, pointed out that estoppel may arise from misleading, although innocent, silence, coupled with a duty to speak. Again, in Humble Oil & Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355, the Supreme Court reiterated the rule that an estoppel maye arise when one is induced to act to his injury on account of the silence of one interested in a transaction, or when such course of action is permitted with a knowledge of the interested party or induced by silence or a tacit acquiescence.

It is true, as pointed out by the court in Alco Oil v. Concord Oil, Tex.Civ.App., 375 S.W.2d 463, that for the doctrine of estoppel to be applied on the basis of silence or inaction, there must be some element of turpitude or negligence connected with the silence or inaction by which the other party is misled to his injury. The jury in this case, based'upon adequate evidence, found that there was negligence on the part of the appellant corporation in its actions following knowledge of the January 8, 1963 resolution.

We believe that the application of the doctrine of equitable estoppel as applied here is further strengthened by the element of ratification. 12 C.J.S. Cancellation of Instruments § 37, p. 995. As stated there the question of estoppel most often arises by reason of plaintiff’s acts or his inactivity whereby he is to be considered to have ratified a contract which he might otherwise have cancelled and is thereby es-topped to claim a cancellation. The ratification need not be express in order to defeat cancellation but any acts of recognition of the contract or any conduct inconsistent with an intention of avoiding it, have the same effect of an election to affirm. 12 C.J.S. Cancellation of Instruments § 38, p. 996.

Finally, in connection with these points, we agree with appellees that appellant having failed to show that appellees were in a better position than it to have prevented the transfer of said patent application, appellant should bear the loss. The rule is well stated in 10 Tex.Jur.2d, Cancellation of Instruments, § 55, pp. 390-391, as follows:

“Where a third party has acquired an interest in the subject matter of the agreement sought to be rescinded, and where it appears that, as a consequence of the plaintiff’s suit for cancellation, a loss must fall either on the plaintiff himself or on the third party, the rule to be applied is that which declares that if one of two or more innocent persons must suffer a loss, it must be borne by the party who was best situated to foresee it and prevent it from occurring. For example, where the plaintiff sues to set aside a conveyance, but it appears that the grantee had transferred the property or an interest therein to a third party, the law will then infer that the plaintiff should have foreseen the possibility of such a transfer and taken timely steps to have prevented it.”

In Lloyds Casualty Insurer v. Farrar, Tex.Civ.App., 167 S.W.2d 221, following the earlier case of Parma v. First Nat’l Bank of Cameron, Tex.Com.App., 63 S.W.2d 692 (Syl. 2), the court invoked the doctrine of estoppel, saying:

“When one of two persons equally entitled to consideration must suffer from delinquency of third person, loss falls upon him who, having readily at hand means of protection, fails to avail himself of them.”

We think the facts in this case justify an application of this rule. Although charged with conspiracy and knowledge of alleged wrongdoings between Moss and Fite, the Tyras were voluntarily released from such charges and there is no evidence that they knew or participated in any such alleged manipulations. On the other hand, the facts reveal, and the jury found, that the appellant corporation had within its possession knowledge of all of the facts at a time when it could, by prompt disavowal, have acted to undo the alleged wrongdoings between Moss and Fite. This the corporation did not do but remained silent for an inordinate period of time so that it may not now be heard to seek equitable relief.

Appellant’s points 5 through 11, inclusive, are overruled.

By its twelfth and last point of error appellant contends that the court erred in entering judgment for appellees based upon the finding that “plaintiff has failed to sustain the material allegations in its pleadings in that there is no evidence of a conspiracy between W. A. Moss, Luther S. Fite and defendants.” Appellant argues that while it is true it completely failed in its effort to connect appellees with any conspiracy with Moss or Fite yet it was entitled to cancellation of the assignments in question because Fite had no title in the application to assign to appellees.

It is a well settled rule of law that the judgment of the trial court must be sustained if it can be supported by any legal theory apparent from the record as a whole. The mere fact that the trial court made the quoted recitation in the judgment does not necessarily imply that the judgment is based solely upon such finding. Aside from appellant’s failure to prove the allegations of conspiracy against appellees there is the jury finding to the effect that appellant corporation gave no consideration for the original assignment into it and also the findings relating to equitable estoppel which have been discussed above. These findings alone justify denial of recovery of the relief sought by appellant and therefore sustain the judgment rendered.

In its argument under this point appellant seeks to inject another question into the case which has not been presented by either point of error or by an assignment of error contained in the amended motion for new trial. This is the contention that the assignment from Petroleum to Fite was void under Section 79 of the Mississippi Business Corporation Act which provides that a sale or other disposition of all, or substantially all, of the property and assets of a corporation not in the regular course of business, must be authorized by an affirmative vote of two-thirds of the stockholders of the corporation after recommendation by the board of directors and written notice to the stockholders. Since this contention has not been properly presented it must be deemed to have been waived.

Having carefully considered all of appellant’s points of error and finding the same to be without merit, they are overruled and the judgment of the trial court is affirmed.

Affirmed.


text:
    A. C. ELLIOTT, Appellant, v. Charles S. SHAW, Appellee.
    No. 4523.
    Court of Civil Appeals of Texas. Waco.
    Dec. 8, 1966.
    Rehearing Denied Dec. 8, 1966.

      R. A. Kilpatrick, Cleburne, Stark & Davey, Gainesville, for appellant.
    Garrett & Garrett, Fort Worth, for ap-pellee.
   OPINION

WILSON, Justice.

A take-nothing judgment based on a jury verdict was rendered in this rear-end automobile collision case.

Appellant plaintiff complains of the overruling of his motion for new trial on the ground, supported by an affidavit, that one of the jurors, when asked on voir dire whether he knew defendant, answered he did not, although he later realized that he “had known him since boyhood” and that defendant had played with the juror’s children.

The juror’s affidavit does not constitute evidence of the matters recited in it. Harris v. Smith, Tex.Com.App., 265 S.W. 546; Allan v. Materials Transp. Co., Tex.Civ.App., 372 S.W.2d 744; 41 Tex.Jur.2d, Sec. 191, p. 405. It is for the purpose of assuring the court evidence will probably be elicited. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644; Ivy v. Carrell, Tex.Sup., 407 S.W.2d 212.

The evidence on the motion for new trial hearing is that a juror who sat in the case when asked if he “knew Mr. Shaw”, answered he did not. He believed the answer to be true. Appellee Shaw was not in the courtroom during the jury selection. The third day of the trial Shaw first came in the courtroom and the juror then recognized him. He did not apprise the court or attorneys of this fact because the jury had already been selected. He testified he had not seen appellee since he was a small child, but “he had played with my children when they were young”, about 15 years before. He had not seen Shaw in a “number of years.” The juror testified he did not refer to his acquaintance in the deliberations.

In our opinion it does not reasonably appear that injury probably resulted to appellant. See Rules 327, 434, Texas Rules of Civil Procedure; Childers v. Texas Employers’ Insurance Ass’n, 154 Tex. 88, 273 S.W.2d 587, 588; Dunn v. Sears Roebuck & Co., Tex.Civ.App., 371 S.W.2d 731, writ ref., n. r. e.

Another point complains of overruling the motion for new trial on the ground of newly discovered evidence to the effect appellee had told a witness that he had been drinking on the night of the accident and was “glad to get away from the accident.” Appellee testified on the trial that he had been drinking. A new trial will not be granted on the ground of newly discovered evidence unless it is made to appear it is not merely cumulative. New Amsterdam Casualty Co. v. Jordan, Tex. Sup., 359 S.W.2d 864, 866.

We have considered all appellant’s points, including those asserting there is no evidence or insufficient evidence to support the verdict, and they are overruled.

Affirmed.