author: LANGDON, Justice.

text:
    Charles E. HOLLEY et al., Appellants, v. PAINTERS LOCAL UNION NO. 318 et al., Appellees.
    No. 16486.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1964.
    Rehearing Denied March 13,1964.

      Jack Love and Ernest May, Fort Worth, for appellants.
    Willis & Williams, Fort Worth, for ap-pellee Painters Local Union No. 318.
    Herbert S. Thatcher, Washington, D. C., for appellee Brotherhood of Painters, Decorators and Paperhangers of America.
    Sam Houston Clinton, Jr., Austin, Tex., for appellee Painters Local Union No. 318 and Brotherhood of Painters, Decorators and Paperhangers of America.
   LANGDON, Justice.

This is a suit for reinstatement and damages tried before the court without a jury on a third amended original petition filed by six former members of a union against W. E. Tatum and the local union of which they were members and an international union with which the local union is affiliated. The trial court entered judgment based upon an informal opinion containing findings of fact and conclusions of law which was filed as part of the record in this case and included in the transcript. The judgment denied all relief to Holley, C. C. Johnston and B. U. Simonds and ordered Honea, T. B. Simonds and Anderson reinstated while denying them damages. The first five named have filed an appellate brief. The local union and the brotherhood have perfected their appeal from certain rulings of the court and that portion of the judgment ordering reinstatement of Honea, Anderson and T. B. Simonds. The brotherhood and the union are therefore appellants in some aspects of the case and appellees in others. The opinion will refer to them as appellees. We affirm.

Appellees’ motion to dismiss as to T. B. Simonds because he was not covered by the appeal bond is overruled as he was covered by an amended bond as reflected by the supplemental transcript filed herein.

We next consider the motion of the appellees attacking the appellants’ brief because of the alleged failure of the asserted points of error to comply with Rule 418, Texas Rules of Civil Procedure, in that they do not “direct the attention of the court to the error relied upon” because they are vague, indefinite and general abstract statements describing the judgment of the trial court rather than complaining of some specific action of the trial court with respect to matters of evidence or of law. The motion is overruled. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Taylor v. United Ass’n of J. & A. of Plumbing, etc., Tex.Civ.App., 337 S.W.2d 421; Paul v. Johnson, Tex.Civ.App., 314 S.W.2d 338, 343.

We have concluded that the points are based on no evidence and that the rule in Frazier v. Williams, Tex.Civ.App., 359 S.W.2d 213, 214 is applicable. This case in which there is no writ history holds, “In cases tried before the court without a jury, in the absence of a point that the judgment is contrary to the overwhelming weight and preponderance of the evidence, the rule is well settled that the judgment must be affirmed if there is any evidence of probative value to support it and that only evidence which tends to support the judgment may be considered. See Wilson v. Teague Independent School District, Tex.Civ.App., 251 S.W.2d 263, (Writ Ref.).” See also the Article by Chief Justice Calvert of the Texas Supreme Court entitled “No Evidence and Insufficient Evidence Points of Error”, 38 Tex.Law Review 361.

By their first three points the appellants contend that the court erred in holding that the local union’s suspension of Holley, Johnston, and B. U. Simonds was just and by their last three points that the court erred in holding that Honea and T. B. Si-monds proved no damages and the refusal of damages and reinstatement to Holley and B. U. Simonds.

In considering the no evidence points we view the evidence in its most favorable light in support of the findings of the trial court, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the finding. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; 38 Tex.Law Review 361, supra. The trial court in his findings stated that the attorney for the appellants in a brief filed with him conceded that “ ‘The Charges against B. U. Simonds and C. C. Johnston under Sec. 277 (of the Union Constitution) were sufficiently specific and the evidence sufficient that, in other circumstances, they might have merited mild discipline.’ ” The trial court found that the charges were not only adequate hut that the evidence was amply sufficient to justify imposition of the fines by the trial board. We agree with the trial court that the evidence before it and the trial board would have justified the trial board in concluding that these two plaintiffs had been guilty of conduct which if permitted to continue would have wrecked the union and made it undesirable for peaceful members thereof to attend its meetings. That the fines of $1000.00 considered in the light of the gravity of the offenses charged and proved under § 277 together with the sum of the annual earnings these two men admittedly received were not excessive. We also agree with the trial court that the charges against Holley under § 277 were sufficient and that the evidence fully justified the trial board’s action in assessing a fine of $300.00 against him. Based upon the record as a whole we are in accord with the finding of the trial court that the officials of the union acted in good faith in bringing the charges and conducting the trials. To an unbiased mind the evidence in this record would dictate a single ultimatum that something had to be done to preserve the union and its membership. Otherwise the union could have been wrecked as was indicated by the trial court. In cases where the trial board of the union acts fairly and in good faith as we believe they have in this instance their action is conclusive and cannot be disturbed by a court. St. Louis & S. W. Ry. Co. of Texas v. Thompson, 102 Tex. 89, 113 S.W. 144. The appellants’ first three points of error are overruled.

In reviewing the record we find ourselves in full accord with the trial court that the parties seeking damages have completely failed to show by a preponderance of the evidence or by any probative evidence, what, if any damages they sustained by reason of their conviction by the union trial board. The evidence submitted was indefinite and unsatisfactory. From the evidence we are unable to find any basis for an award of damages associated with or connected with the alleged wrongful convictions. There is no testimony that the local union or any of its officers interfered in any way with the employment of those seeking damages. In this case not only was the amount, if any, uncertain but the cause and effect relationship was not shown.

The plaintiffs’ theory of recovery based upon allegations that as members of the union, as distinguished from nonmembers they had the advantage of the bargaining agent in reference to wages and conditions of work is untenable when under federal law a union must operate its hiring hall in a nondiscriminatory manner, open and available for members and nonmembers alike, N. L. R. B. v. Local 1566, Internat’l Longshoremen’s Ass’n (3 Cir., 1960), 278 F.2d 883, cert. den. 364 U.S. 890, 81 S.Ct. 223, 5 L.Ed.2d 187 (1960). The “right-to-work law” in Texas, Article 5207a, reaches the same result. Further a bargaining agent must represent all employees within the bargaining unit, whether members or not. Contractual provisions covering wages and conditions apply equally to all employees, whether union or nonunion. Wallace Corp. v. Labor Board, 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216.

Thus, as a matter of law, plaintiffs’ self-imposed suspension as members of painters local did not cause loss of the “benefit of their bargaining agency.”

Absent a sufficient showing to the contrary, the fact, if it is a fact, that “many painting contractors in Fort Worth depend upon Local Union No. 318 for their labor supply” does not, ipso facto, warrant a finding that only union members are employed by those contractors. There is no probative evidence that painting contractors “depend” upon Local Union for their labor supply. It does not operate a “hiring hall”. Members of the local union solicit and obtain their own employment with contractors. Each plaintiff who was asked verified that he sought and obtained employment without being referred or “cleared” by Local Union. B. U. Simond’s excuse that he did not feel he had enough opportunities for work here is belied by admissions that he made no real effort to seek employment in Fort Worth.

It was not alleged nor shown that one who was not a member of the union could not seek and obtain employment on the same footing as one who was. There is no allegation or proof that plaintiffs were ever refused a request to be referred to employment through local union or made any real effort to obtain employment from those contractors who, it was alleged but not proven, “depend upon Local Union 318 for their labor supply”.

The discussion in Semon v. Musicians Protective Ass’n, Local 466, 1954 (Tex.Civ.App., El Paso), 272 S.W.2d 958, no writ history, directly supports the trial court’s findings and conclusions. In that case the court affirmed dismissal of a complaint by a union member who claimed that he had been wrongfully expelled by the defendant and thus deprived of working in concerts and appearing professionally.

The court held that, “Since Plaintiff did not allege that he had sought reinstatement in the union since his wrongful expulsion, he alleged no cause of action for the union’s failure to reinstate him; furthermore, plaintiff’s deposition reveals that he has neither sought or been refused employment since the former trial because of his wrongful expulsion from the union. Such allegations were essential for his pleading to state a cause of action.”

The testimony of the plaintiff herein was not so clear, positive and unequivocal and of such a nature and given under such circumstances as to require the trial court to give conclusive effect to it. It was within his province as the trier of the facts to believe it or to reject it. Texas Employers’ Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80, Com. of Appeals, adopted by Supreme Court; Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904.

The appellants’ remaining three points of error are overruled. The appel-lees by cross-points contend that the court erred in overruling pleas to the jurisdiction, its pleas in abatement and special exceptions directed to claims for reinstatement and orders supporting same and in ordering reinstatement of three members. In an earlier appeal of this same cause in the case of Anderson v. Brotherhood of Painters, etc., Tex.Civ.App., 330 S.W.2d 541, this court affirmed the action of the trial court which had sustained a plea in abatement directed at reinstatement of members and remission of fines and accumulated dues and reversed the portion of the trial court’s judgment sustaining the plea of abatement directed at the claim for damages. The Supreme Court in Anderson v. Painters Local Union No. 318, 161 Tex. 129, 338 S.W.2d 148, in an opinion by former Chief Justice Hickman affirmed this court’s action in reversing the trial court and reversed its action affirming the trial court which in effect completely reversed the trial court and remanded the case for trial on its merits. In view of the language contained in the latter opinion we are of the belief that the appellees’ cross-points should be and the same are accordingly overruled. The judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Geraldine WOLCOTT, Appellant, v. Mancill McWILLIAMS, Appellee.
    No. 7319.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 20, 1964
    Rehearing Denied Feb. 24 1964
    Charles E. Benson, Lubbock, for appel- ¡ lant.
    Day & Owen, Plainview, for appellee.
   NORTHCUTT, Justice.

On May 19, 1961, Geraldine Wolcott and Mancill McWilliams entered into a partnership with the purpose of selling real estate. The commissions earned were to be divided between them on a fifty-fifty basis. Expenses were to be borne on the same basis except that each partner was to pay his or her own gasoline expenses. The partnership was dissolved on April 7, 1962. A Mr. Barrett had been a client of McWilliams for several years. A Mr. Vandergriff, a real estate man, first became acquainted with Mr. Barrett in the office of McWil-liams and Wolcott and the two real estate firms had been trying to sell Mr. Barrett some property here in Texas but had been unsuccessful. It was agreed the commission in case of a sell to Barrett of property that was listed with Vandergriff would be divided equally, Vandergriff receiving one-half of the commission and McWilliams and Wolcott receiving one-half.

Vandergriff had had some property in Colorado listed with him for sale by one Philpy. After being unable to sell Barrett the property in Texas, Vandergriff wrote to Philpy on April 1, 1962, to see if the Colorado property was available for sale. Van-dergriff learned on April 3, 1962, the Colorado property was for sale and contacted Barrett and made arrangements to take him to see the property on April 10, 1962. After looking over the Colorado property, Bar,-rett wanted to buy the property but was ■financially unable to do so. After returning ‘.home Barrett tried to get two other men :to join him in purchasing the property but was unable to do so. Barrett finally secured Paul Hays and H. D. Hays in joining him in purchasing the Colorado prop•erty but it was necessary for the three of -them to make arrangements to borrow :money to make the purchase. On May 9, 1962, a contract of sale was entered into ■whereby Barrett, Paul Hays, and H. D. Hays agreed to purchase the property from .Philpy.

The full commission of $10,000 for the ■sale of the Colorado property was paid to ‘Vandergriff. Vandergriff was entitled to :$5,000 of the commission.

This suit was brought by Wolcott, as plaintiff, against McWilliams, as defendant, •contending she was entitled to one-half of -the remaining $5,000 and McWilliams con-tended this $5,000 was no part of the partnership commission. Vandergriff placed -the $5,000 in a bank in escrow to be paid as determined by the court. The case was -tried to the court without a jury. The court found the partnership had been dissolved by voluntary dissolution; that a purchaser has not been found who was ready, able, and willing to purchase the property in ■ question on the date of dissolution of the ■partnership, and that no contract or agreement of purchase had been entered into ■ on or prior to the date of dissolution; that •the commission was earned when a purchaser was produced who was ready, willing, and able to buy the property in question and that such purchaser was not produced until after the dissolution of the partnership and therefore was not an asset ■of the partnership at the time of dissolution. The court then rendered judgment for Mc-Williams for the $5,000 commission and or- ■ dered the bank holding the funds in escrow to pay the sum to McWilliams less the cus-tomary charge, if any, of said bank as escrow agent. From that judgment Wolcott -perfected this appeal and will hereafter ‘.be referred to as appellant.

Appellant presents this appeal upon one point of error contending the judgment was contrary to applicable law and the undisputed evidence. Since the case was presented to the court without a jury, we consider the findings of the court on the evidence in the same light as a finding by a jury where the case is tried to a jury. It may be true that the findings of the court might not have passed upon the question as to whether the transaction here in question was to be considered as a continuing part of the partnership business as to a division of the commission in this particular deal. The court went further and held the appellant was not entitled to any part of the commission.

In dissolving the partnership appellant drew up a list of the commissions that were to be divided after the dissolution of the partnership and presented the same to Mc-Williams and they both signed the same as constituting the commissions to be divided after the dissolution of the partnership. Nothing in the instrument referred to a division of any other commissions.

Since appellant drew an itemized statement of the commissions each were to have after the dissolution, the instrument must be construed most strongly against her. Masterson v. Allen, Tex.Civ.App., 69 S.W.2d 539 (writ refused) ; Brandtjen & Kluge, Inc. v. Tartar, Tex.Civ.App., 236 S.W.2d 550 (N.R.E.); Ryan v. Mathews, Tex.Civ.App., 363 S.W.2d 948; Mathews v. Ryan, Tex.Civ.App., 320 S.W.2d 44.

There is nothing in the record to indicate the appellant took any action whatever in the Philpy sale to Barrett to suggest that she did expect any part of the commission. While Vandergriff was showing the property in question to Barrett and Hays, appellant did not pay any of the Vandergriff expenses but McWilliams did.

We are of the opinion the trial court had sufficient evidence to believe and hold it was the intention and agreement of appellant and McWilliams at the time of the dissolution of their partnership that the agreement as to a division of certain commissions as listed constituted a full and complete settlement of their partnership rights. Judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    COLUMBIA CASUALTY COMPANY, Appellant, v. Arlena GRIGSBY et vir, Appellees.
    No. 11136.
    Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1964.
    Rehearing Denied March 11,1964.
    Ramey, Brelsford, Hull & Flock, Donald Carroll, Tyler, for appellant.
    ■J. B. Sallas, Crockett, for appellees.
   ARCHER, Chief Justice.

This is a Workmen’s Compensation case, tried to a jury. After a jury verdict based upon special issue findings, both parties moved for judgment, and the plaintiff’s motion for judgment on the verdict was granted, the judgment awarding appellees total and permanent Workmen’s Compensation benefits. Appellant filed its motion for new trial and an amended motion; such motion was overruled and an appeal was •duly prosecuted to this Court.

The appeal is predicated on 27 points assigned as error and are to the effect there is no evidence that the injury suffered by plaintiff was due to the nature of her employment or the evidence was insufficient and no evidence, or the evidence was insufficient to sustain a finding that the hazard of dermatitis actually existed in plaintiff’s employment and no evidence or that the evidence was insufficient that the hazard of dermatitis is peculiar to the •occupation or employment in which plaintiff was engaged; that the court erred in ■sustaining plaintiff’s objection to the testimony of witness Darsey pertaining to whether or not the hazard of dermatiti" is peculiar to the occupation in which plaintiff was engaged; that the court erred in failing to include defendant’s requested issues Nos. 1 through 4 inquiring if a former injury in anywise contributed to the incapacity of plaintiff to work, and if any such injuries have contributed to the incapacity of plaintiff to work, if any, and if any ear trouble, eye or sinus trouble aggravated or in anywise contributed to the incapacity to work, if any, of plaintiff, and if so the percentage that such condition contributed to the incapacity to work, if any, of plaintiff; that the court erred in Tendering judgment for total and permanent incapacity because the answers to issues Nos. 15, 16, 17 and 17a restricted recovery to 178 weeks; that the court erred in overruling defendant’s objection to issue No. 2 because such issue is multifarious and does not confine the jury to a finding of dust or fumes within the scope of plaintiff’s employment, and there is no evidence as to dust as a causative factor and there is no pleading to support the submission of the causative theory; that the court erred in overruling defendant’s motion for judgment non obstante veredicto because admissions by plaintiff in the pleadings revealed that the dermatitis was caused by contact with nylon cloth, the same being a non-compensable condition, and there was no evidence or insufficient evidence to show that the dermatitis suffered by plaintiff was sustained by her in the course and scope of her employment, and there was no evidence, or the evidence was insufficient that the injury suffered by plaintiff was due to oil, dust, gases or vapors.

We believe that the evidence in the record that the injury suffered by plaintiff was due to the nature of her employment and that the hazard of dermatitis actually existed in plaintiff’s employment, and the jury’s finding is supported by the record.

There is evidence that the hazard of dermatitis is characteristic and peculiar to the occupation process or employment in which plaintiff was engaged at the time she contracted the condition of dermatitis.

We believe that the charge submitted by the court presented the issues correctly and the answers of the jury to such was supported by the evidence.

The issues submitted and the answers of the jury found the plaintiff suffered from dermatitis since October 24, 1958, and that such was caused by dust and fumes and caused by her contact with nylon material or the dyes therein and that the dermatitis suffered by plaintiff was a producing cause of any total incapacity to work, that such incapacity began on November 4, 1958, and was permanent and that the dermatitis was due to the nature of her employment and that the hazard of dermatitis actually existed in plaintiff’s employment for Alexander Manufacturing Company and that such hazard is characteristic and peculiar to the occupation, process or employment in which plaintiff was engaged.

The jury found that the dermatitis has existed in an acute stage after October 24, 1958, and that such commenced November 4, 1958, and that such will continue 178 weeks.

Based on the verdict the trial court entered judgment for plaintiff and against defendant in part as follows:

“It is accordingly ORDERED, ADJUDGED AND DECREED that Plaintiffs do recover of and from the Defendant 180 weeks of compensation accrued to this date in the sum of $4,341.60, together with interest thereon in the further sum of $260.50, all in the sum of $4,602.10 and that Plaintiffs further recover of and from Defendant the further sum of 221 weeks of compensation accruing in the future in the amount of $4,908.09, making the total amount of this judgment in favor of Plaintiffs against Defendant the sum of $9,510.19 for which said amount let execution issue. It is further ordered that all costs incurred herein be adjudged against the Defendant and that this judgment bear interest at the rate of four per cent per annum until paid.”

The plaintiff testified in detail as to her duties and employment and that she did not experience any breaking out of a rash on her body during the time she handled nothing but cotton material. The witness then testified:

“Q Mrs. Grigsby, will you describe for us the conditions in the plant itself and particularly with reference to mist or dust, that you might have encountered during any and all of this period of employment with the Alexander Manufacturing Company ?
“A When you would go into the building, this nylon material would give off fumes, it would burn your eyes, nose and throat, and after you were in there a while, you didn’t seem to notice it so bad. It had been that way the whole period I worked. Before I broke out, seemed like it had got stronger, and for a week before I broke out on a Friday, it had become so strong, I had to get some gauze to tie over my nose to keep it from burning, so I could sew. My eyes would water and I felt just terrible.
“Q I’ll ask you to tell us whether or not your employer furnished gauze for the employees to apply to their faces, to tie over their face and nose?
“A No, sir, he did not. I bought it on my own.
“Q Did your employer or some foreman working for your employer know of this condition?
“A Yes, sir.
******
“Q Now, I believe you have just testified that you broke out?
“A Yes, sir.
“Q Tell the jury, in brief, if you will, when you first noticed this breaking out and describe it for us generally, please, what happened ?
“A It was on, I believe around the 24th .day of October, I started to stinging and itching, after I had that burning in my nose and my eyes were watering. I went and looked in the mirror and I was broke out all over my face and neck and after looking more closely, it was all over my whole body. That was on Friday and I didn’t feel like returning to work on Monday. I went back on Tuesday and continued to work on the rest of that week. I started swelling, my lips, my eyes and the glands in my neck, and it was affecting my breathing. So, the following Monday I went back to the factory and told them that I had to have something done, and I went to the doctor.
* * * * * *
“Q About a third of the time on nylons and two-thirds then on other materials. Did that continue on up until the time you left, that rough percentage.
“A For a week or two before I left, most of what I did all together was on those nylon petticoats.
“Q For about the last two weeks then before you left, you were working almost full time handling nylon material, is that right?
“A Yes.”

Mr. Murdock Darsey, president of Alexander Manufacturing Company, in 1958, testified:

“Q Up until and before the time you came with Alexander in September until the time these dermatitis claims were reported, was there on your premises there, a certain amount of dust?
“A Yes, we have a dust factor.
“Q It is ordinary dust or what is it? Is it dust like we have got here on the floor of the court room?
“A We have that too, there is a certain amount of, in your cotton fabric particularly, there is a lint dust. There is, when you sew nylon in the finish, sometimes there is a flaking that causes dust.
“Q Did you complete your answer?
“A I said there is a flaking that causes a dust.
“Q If you were say, sewing red nylon, would there be red dust or blue nylon, a blue dust?
“A Yes, sir, there is.
“Q Now, up until the time — oh, another question, was there any mist running around, hanging: around in your plant, on your-premises there?
“A As a suspended vapor?
“Q That would be my definition of a. mist.
“A No, sir.
“Q Was there, Mr. Darsey, a distinctive odor, say, about the premises where this cloth was stored ?
“A Yes, sir, there is.
******
“Q I’ll ask you whether or not you do-not carry your present policy.with the Columbia Casualty Company, is that correct?
“A Yes, sir.
“Q The fact you no longer carry your-workmen’s compensation insurance with Columbia Casualty-Company, does it have anything to-do with the claim asserted by Mrs, Grigsby, or Mrs. Cheatham or this, other lady?
“A I believe that Columbia Casualty-Company, after the facts of these-cases requested that, because it looked like the loss ratio was. going to be high, that we get our workmen’s compensation throughi the Texas Assigned Risk Pool. We made application under the Assigned Risk Pool.”

There can be no question but that Alexander Manufacturing Company knew the-hazard of dermatitis in its type of industry was present. Hock et al. v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 80 S.W.2d 793 er. dism.

In Zurich General Accident and Liability Insurance Company v. Industrial Commission, 203 Wis. 135, 233 N.W. 772, the Court took judicial notice of dusty occupations as. giving use to lung trouble.

Dr. Fred Felder qualified as an expert testified as follows:

“Q Doctor, in your professional opinion, I will ask you to state whether or not Mrs. Grigsby’s condition is caused by the dust and/or the actual contact with the nylon material, such as that introduced in evidence here today?
■“A Based on the results of the patch test, I am of the opinion that her difficulty was caused by these two materials.
■“Q Doctor, I’ll ask you to state whether or not in your opinion Mrs. Grigsby could ever again work around nylon material, without experiencing the same difficulty.
“A I think she would have the same type of reaction.”

Defendant requested issues Nos. 1 to 4 which were refused by the court. These issues are directed to the provision of Sec. 22, Art. 8306 Vernon’s Ann.Civ.St., concerning the aggravation of an occupational disease by any other non-compensa-'ble disease, and providing that the number of weeks of compensation shall be reduced to such proportion only of the total num•ber of weeks of compensation.

This provision of the Act is construed in Texas Employers Insurance Association v. Etheredge, 154 Tex. 1, 272 S.W.2d 869. In that case there was no question but that tuberculosis as a non-compensable disease 'had been aggravated by silicosis, a compen-sable occupational disease.

The Court was justified in rendering judgment for total and permanent incapacity based on the jury’s answers to .Special Issues Nos. 3 and 5 that plaintiff is suffering a total incapacity to work.

The defendant takes the position, based • on Section 27 of Art. 8306, V.A.C.S., that -.the dermatitis suffered by plaintiff could be arrested by a change in employment and that such dermatitis had existed in an acute stage for 178 weeks would limit the recovery to 178 weeks.

This section was held by the Court of Civil Appeals in Aetna Casualty & Surety Co. v. Bailes, 285 S.W.2d 886, er. ref., n. r. e., not to limit compensation to the original acute state. The statute provides that the compensation is to be limited only when there are no further objective symptoms of the occupational disease, and plaintiff testified that she had never been free of the objective symptoms since she first contracted dermatitis.

We believe that the evidence is sufficient to show that the dermatitis suffered by plaintiff has existed in an acute state.

Mrs. Grigsby testified in part as follows:

“Q What year was that now?
“A In 1958 and then I wasn’t able to return to work on Monday and when I went back I showed all of them how I was still broke out and then I started swelling the latter part of the week and just continued to get worse. I went to the doctor the following week.
í-í i|í sj: ;ji i¡t #
“Q Now, I believe you have also testified and the Doctor has testified that your nostrils became enlarged and swelled and your ears and throat and neck glands and other glands. Just explain to the jury what happened, Mrs. Grigsby.
“A After I broke out, I started swelling, my lips, face, eyes, ears, hands and glands and practically all over. It affected my breathing at times, it would swell so bad it was hard to breath freely.
“Q Do you or do you not still experience that same type of trouble?
“A Yes, sir.
******
"Q Now, Mrs. Grigsby, I’ll ask you to tell us whether or not you have experienced a thickening of the skin, of your skin, the skin of your body or on your body, since you first became affected with this condition from which you now suffer?
“A Yes, sir.
“Q Describe to us, describe to the jury that sensation of how it feels ?
“A It has a thick, rough, burning, stinging feeling all the time, itches.
“Q Does your skin itself actually appear to thicken ?
“A To a certain extent. It just feels, I don’t know, thick and rough, stings and itches.
“Q When did you first experience that sensation ?
“A Well, ever since I broke out.
“Q On what date or about what date ?
“A On the 24th of October in 1958.
“Q Has that condition or has it not remained substantially the same since your broke out in 1958?
"A Well, it’s there all the time. At times it gets worse, but it never completely clears up.”

Dr. Fred Felder, the doctor treating Mrs. Grigsby, substantiated her testimony as to her dermatitis condition.

The submission of Special Issue No. 2 was not error because of submitting two of the causative elements, that is, dust and fumes. The pleadings and the evidence support the issue by showing that nylon dust and chemical fumes were causes of the dermatitis suffered by plaintiff and it was proper to group the two causes in a single issue. Traders & General Insurance Co. v. Turner, Tex.Civ.App., 149 S.W.2d 593, er. dism.

There can be no question but that the injury complained of was sustained in the course and employment of plaintiff and that the dermatitis was contracted during the scope and course of plaintiff’s employment, according to the evidence, and it was not necessary to submit such an issue. Employers Casualty Company v. Winslow, Tex.Civ.App., 356 S.W.2d 160, er. ref., n. r. e.

The jury heard all of the testimony offered and saw the witness and resolved the fact issues as reflected by its answers and we believe that the evidence supports the jury’s finding.

The judgment of the trial court is affirmed.

Affirmed.


author: MOORE, Justice.

text:
    TRANSCONTINENTAL BUS SYSTEM, INC., Appellant, v. Edna R. SCIRRATT et al., Appellees.
    No. 29.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 20, 1964.
    Rehearing Denied March 12, 1964.

      Hobert Price, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    Ben T. Warder, Jr., Carter, Gallagher, Jones & Magee, Ivan Irwin, Shank, Irwin & Chester, Dallas, for appellees.
   MOORE, Justice.

Plaintiffs, Edna Scirratt and her sister Hazel Scirratt, instituted this suit against the defendant, Transcontinental Bus System, Inc., for damages resulting from a collision between the automobile driven by Edna Scirratt and in which Hazel Scirratt was a passenger, and the defendant’s bus, which was operated by its driver, Fred Conley. The collision occurred on May 26, 1962, at 5 :30 p.m. in the City of Dallas on Garland Road near Magellan Circle. Garland Road runs east and west and is composed of three lanes for east bound traffic. Both the bus and the automobile driven by Edna Scirratt were proceeding east in the same direction. It is the contention of the plaintiffs, Edna Scirratt and her sister Hazel Scirratt, that they were proceeding in the outside lane of traffic next to the curb when the driver of the bus turned his vehicle into the left rear side of their automobile, causing it to go out of control and veer to the left across the highway where it struck a utility pole in the esplanade, causing them severe injuries. It is the contention of the defendant bus company that the bus at all times remained in the middle or center lane of the highway and that while plaintiffs were passing the bus on the right hand side, plaintiff Edna Scir-ratt drove her automobile to the left, striking the right front corner of the bus. The trial was to a jury which found that the accident was caused by the negligence of the driver of the bus in that he failed to keep a proper lookout; failed to keep the bus. in the middle east-bound lane; failed to. make timely application of the brakes and to sound the horn. The jury exonerated' plaintiff Edna Scirratt of any act of contributory negligence and found that she had suffered damages in the amount of $35,696.42, as well as the sum of $1,612.90' for damages to her automobile. The jury found that Hazel Scirratt had suffered damages in the amount of $90,469.96.

Defendant, Transcontinental Bus System,. Inc., brings twenty points of error, alleging in the first fourteen points that the trial' court erred in failing to grant its motion for new trial or for judgment notwithstanding the jury verdict, because there was no evidence, or at least insufficient evidence, to support the judgment and in the alternative that the findings by the jury of negligence against defendant’s driver as well as the failure, by the jury, to find negligence against the plaintiffs was so contrary to the overwhelming weight and preponderance of the evidence as to be wrong and unjust and that the judgment should be set aside and a new trial granted. These assignments require that this court examine the statement of facts in accordance with the rule announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We have carefully examined the Statement of Facts and have concluded that, as a matter of law as well as a matter of fact, the judgment is supported by the evidence. In support of our conclusion we will briefly review the record before us.

Plaintiff, Hazel Scirratt, testified that at the time of the accident she was fifty one years of age, was in good health, and had-been employed for over 25 years with Columbia Pictures doing office work; that she-earned $75.28 per week, or approximately $3700.00 per year. That she and her sister, neither being married, lived together and were buying a home in Mesquite, near Dallas; that on the date of the accident she and her sister had left their employment at approximately 5 o’clock and were driving to their home; that at the time of the accident her sister, Edna Scirratt, was driving and she was reading a newspaper, seated in the right front seat of the automobile; that she did not see or know anything as to how the accident happened. She testified that when she recovered consciousness she was in Baylor Hospital where she remained for a period of almost four months. That her right leg was severely broken, requiring the same to be placed in traction and to later be placed in a cast from her hip to her foot; that she had a broken nose, cuts and bruises on the forehead above her right eye; one of the bones below her right eye was broken; four ribs on the right side were broken, her right arm was broken at the wrist; her left kneecap was fractured and that several months after the accident she developed trouble in her left hip requiring further hospitalization and an operation in which the upper portion of her femur or thigh bone was removed and a metal ball was inserted in the joint; that she now suffers continuous pain in her back, legs and hip; that the right leg is shorter than the left leg, requiring her to wear a built-up shoe; she has trouble with her right arm; is unable to work and is required to walk on crutches; that her medical and hospital bill to the date of the trial was $5,369.96.

Her physician, Doctor Eugene Legg, testified that it was necessary to place an artificial metal hip joint or ball in her left hip at the top of the femur in order to relieve her pain and to permit her to walk. He further testified that in his opinion that even though there was probably some arthritis in the left hip joint previous to the injury, same was accentuated by the accident and was what he would refer to as traumatic arthritis, which was secondary to the accident. He further testified that there was a severe comminuted fracture of the right femur or thigh bone affecting the knee as well as fractures to the ribs, left kneecap, and right arm. He testified that she now suffers pain and will in all probability suffer in the future; that she has reached her maximum recovery and that in his opinion the condition is permanent; that she will never be able to work again and that she will require future medical treatment throughout her life.

Edna Scirratt testified that she was fifty years of age on the date of the accident; that for the past 16 years she had been working for Hunt Oil Company as a secretary and earning $450.00 per month, averaging between $5,000.00 and $5,500.00 per year, and before that she had worked 16 years for Sinclair Oil Company; that both she and her sister were in good health prior to the time of the accident. She testified that just before the accident she was driving in the outside or curb lane of Garland Road and when she first saw the bus in her rear view mirror it was in the middle lane about a half block back; that the next time she saw the bus that the front end of it was immediately to her left and was turning into her; that she had not changed lanes but that the bus had turned from the middle lane into her lane and had struck her automobile on the left side, abreast of where she sat; that the impact knocked her automobile out of control and that it went left across the highway, crossing the other two lanes of traffic and struck a utility standard in the center of the esplanade, knocking her unconscious. She denied that she was attempting to pass the bus or that she told the investigating officer that she was overtaking the bus. She spent six weeks in the hospital. She suffered broken ribs on the left side and that two weeks after the accident she suffered a blood clot in her left lung, from which she has never recovered; that although she returned to her work after six weeks and is now working at her same salary, she is now short of breath and breathes with great difficulty, requiring constant medication and medical treatment. She denied that she had ever had asthma or any trouble with her lungs before the accident, although she had been told by her mother that she had asthma as a child.

Her physician, Doctor Alex Grover, testified that at the time he first saw her in the hospital she was near death with acute bronchial asthma due to the fracture of the sixth and eighth ribs and thrombo-phlebitis in her lower left leg which caused a blood clot to lodge in the lung; that this has caused her to have trouble in the lungs, has resulted in pulmonary emphysema causing a decrease of the ability of the lungs to function to 30-40% of normal. He further testified she would need medical attention for the remainder of her life and that her life span will be shortened by five to ten years; that the pulmonary emphysema, with which she now suffers, was a result of the injuries she received. He denied that he received any history from her of previous respiratory trouble or that he found pulmonary fibrosis present in her X-rays on the date she entered the hospital. Doctor Joe Hawkins, a radiologist at Baylor Hospital, who was called by defendant, testified, however, that he had examined the X-rays made on the date of her admission and in reading and interpreting them he found pulmonary fibrosis. Doctor Grover testified that pulmonary fibrosis is not a progressive disease, but is a static condition caused by the formation of scar tissue as a result of injury or disease in the lungs.

Frances Bonfield, one of the witnesses for the plaintiffs, testified that she was riding in the bus on the date of the accident and was seated on the right hand side of the bus next to the window. She testified that when she first saw plaintiffs’ automobile it was in the right hand or curb lane and about one-third of it was ahead of the bus. She then felt and saw the bus turn to the right and saw the right front corner of the bus strike the rear one-third of the automobile on its left side; that the collision occurred slightly in the automobile’s right hand or curb lane; that when the bus hit the car it spun it around, and then hit the automobile again further up toward the front and then came apart and then hit it again and again, that the automobile then disappeared and she did not see it again until she saw it against the utility pole in the esplanade. She admitted she could not see the dividing line between the center lane and the curb lane.

Officer Shutler, an accident investigator with the Dallas Police Department for five years, testified that he investigated the accident, arriving at the scene within thirty minutes. He testified that he saw the tire marks of the right hand tire of the automobile leading from a point in right hand, curb lane veering to the left to the place where the automobile struck the utility pole in the esplanade. He did not measure the distance of the tire marks from the curb. At a point eight feet from the curb and at a point about even with the place where the tire marks commenced, he found a “smudge” which he thought was made by the left rear tire of plaintiffs’ automobile. It appeared to be a skid mark made by a vehicle sliding sideways. It was about five or six feet to the left of the swerve mark and was in the curb lane, eight feet from the curb, which would put it two' feet to the right of the line dividing the center lane and curb lane or two feet inside the curb lane of traffic. He testified he saw white paint on the front right corner of the bus where the bumper wraps around the bus; that there was white paint on the lug bolts that fasten on the front wheel of the bus. He testified that the right rear door of the automobile was mashed in and there were gouged marks in the metal where the rear door joins the body which he took to have been gouged or clawed out by the lugs on the front wheel of the bus. He was of the opinion that the collision occurred near the point where he saw the “smudge” tire mark which was two feet on the inside of the curb lane. He testified that in his opinion the accident occurred in the curb lane and not in the center lane, although he found no debris of any kind in either lane. He testified that he talked to Edna Scirratt at the hospital a short time after the accident and she told him she was passing the bus at the time of the collision, and from this, together with his investigation on the ground, it was his opinion that the accident occurred while she was passing the bus.

Numerous photographs were introduced in evidence showing a white mark on the right front bumper of the bus as well as white markings on the lugs on the right front wheel. Photographs of the automobile showed the left rear door to be caved in, as well as gouge marks in a semi-circle at a point on the left side of the automobile where the rear part of the back door joins the body, indicating they were probably caused by the lug bolts on the wheel of the bus. There was a black mark on the rear fender indicating same had been struck. The front end of the automobile received extensive damage when it hit the utility pole. No witnesses were found who viewed the accident at the scene.

Defendant, Transcontinental Bus System, Inc., called as witnesses, among others, Jean Berry, Brenda Boyd, Joyce Miller, Mrs. Berry Boyd Casey, Barbara Adair, Eugene Loerch, and Mrs. Lee McClain, all of whom were passengers on the bus. None of the witnesses testified that they saw the collision between the bus and the automobile; however, each of them testified that they either heard or felt the impact of the collision. They each maintained that the bus, at all times, remained in the center lane of traffic and did not turn to the right or left and that when the bus finally came to a stop it remained in the center lane of traffic. Witnesses Casey, Adair, Loerch, and McClain, each testified that they saw plaintiffs’ automobile passing the bus on the right hand side just before the impact. Witness Casey, who was seated on the right hand side of the bus next to the window, testified she saw the driver of the automobile “twisting and fighting” with the wheel, as she passed. Witness McClain said she heard or felt a bump on the rear of the bus, before she heard and felt the one at the front of the bus.

The testimony of Fred Conley, the driver of the bus, was by way of deposition, he having died about a week before the trial. He testified his age was 58 and he had been employed as a bus driver with the company since 1944. He testified that for a distance of approximately two blocks before the collision he had traveled in the center lane of traffic; that neither immediately before, nor at the time of the impact, did he turn the bus to the right or left and the bus was completely in the center lane of traffic, traveling 28 miles per hour. He testified that he did not feel, see or hear the impact of the collision. The first thing he saw was the plaintiffs’ automobile come around the right corner of the bus and cross the street directly in his path at about 35 miles per hour, proceeding across the center lane, crossing the inside lane and striking the utility pole in the esplanade. He testified that immediately upon seeing the automobile in his path he applied his emergency brake which prevented the front of his bus from striking the automobile. He testified he then stopped the bus in the center lane of traffic about four or five lengths from the point where the automobile turned in front of him, and left it standing in that position until directed to move it after he had returned from checking on the automobile and calling his employer. Police officer Jones testified that he directed Conley to move the bus off the street because same was partially blocking traffic, in that the right front wheel was approximately two or two and a half feet over in the curb lane, with the rear wheels in the center lane where it had been left by Conley. Conley further testified that he did not have his “turn” signal on at the time of the collision. Roy Clark, a filling station operator where Conley made a phone call to his employer after the collision, testified that he heard Conley tell his employer that he had been involved in' an accident and some people were hurt and that after this conversation Conley told him he had his blinker light •on and his hand sticking out.

Although the testimony conflicts in •some respects, the jury resolved the conflicts in favor of the plaintiffs and we find 'the evidence to be sufficient to support their findings. Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Dallas Ry. & Terminal Co. v. Graham (Tex.Civ.App.) 185 S.W.2d 180; Henwood v. Neal (Tex.Civ.App.) 198 S.W.2d 125; Miller v. Tilton (Tex.Civ.App.) 289 S.W.2d 426.

Defendant next complains by points fifteen and seventeen that the trial court erred in overruling their objections to the damage issues submitted on behalf of Edna Scirratt because the court failed to instruct the jury that she was not to be allowed damages for pre-existing pulmonary fibrosis.

Plaintiffs did not plead an aggravation of a pre-existing condition or infirmity, nor did the defendants allege a pre-existing condition or infirmity as contributing to the present condition of plaintiff Edna Scirratt. The only proof on this subject came from the testimony of Doctor Joe Hawkins, who ■testified that he found pulmonary fibrosis ■in the X-rays which were taken the day she was admitted to the hospital. His testimony •does not show the extent or the degree of ¡such condition at that time, nor did he testify that it was such that it would have been ■expected to cause her pain or incapacity. Doctor Grover testified that from his examination of the X-rays it was impossible to determine whether or not there was pulmonary fibrosis present because same were taken while the patient was in a state of shock and at a time when the lungs were in a deflated condition. Edna Scirratt denied that she had ever had any respiratory problems or had ever suffered any pain or incapacity prior to the accident. Her lengthy work record of sixteen years with Hunt Oil Company and sixteen years with Sinclair Oil Company would seem to lend credit to her testimony. The testimony of Frank Turner, her immediate superior at Hunt Oil Company, to the effect that she had worked under him for over three years before the accident and had properly performed all her duties assigned her in a satisfactory manner and appeared to be in good health, would further indicate that if she ever had pulmonary fibrosis, same had little or no effect upon her ability to work. Doctor Grover attributes her present condition to the accident and not to any pre-existing condition. There was no testimony that the pulmonary fibrosis was in any way affecting her general health prior to the time of the accident.

Under points sixteen and eighteen, defendant claims error by the trial court having overruled their objection to the damage issue submitted on behalf of Hazel Scirratt because the issue failed to contain an instruction that she was not to be allowed damages for any pre-existing arthritis in and to her left hip. Here again, it is pointed out that neither the pleadings of the plaintiffs nor defendant contain any allegation with regard to pre-existing conditions. The only proof in regard to preexisting arthritis in regard to Hazel Scir-ratt is to be found in the testimony of her physician, Doctor Eugene Legg. On cross-examination, he testified that there was probably some arthritis in the left hip joint prior to the injury due to the fact that all people develop arthritis to some extent as they grow older. Plaintiff testified that she had never suffered with any pain or disability in her left hip before the date of the accident and her long work record of over twenty-five years with the same employer would tend to lend credit to her testimony. Her employer, Ross Morgan, testified that he had worked with her for the past nineteen years and that she had been in good health and had always been capable of performing her duties, which required physical activity, up to the date of the accident. Doc% tor Legg testified that her present condition in the left hip was caused by the accident and was what he would refer to as traumatic arthritis. He was of the opinion that the pre-existing arthritis in the joint was not such as would cause any pain or disability but for the injury. Based upon this testimony it is defendant’s contention that each of the damage issues submitted on behalf of each of the appellees, Edna Scirratt and Hazel Scirratt, should have contained an additional qualifying instruction advising the jury that they could not consider or award any damages for a pre-existing bodily condition, disease, or infirmity. This question has been before the courts on numerous occasions. The rule is said to be that such an instruction is required if (a) there is evidence of a definite infirmity on plaintiff’s part aside from injury due to the accident; (b) there is evidence of a causal connection — which might be close proximity in time — -between such infirmity and some pain or disability suffered after the accident; and (c) confusingly close intermingling between the infirmity not due to the accident and that due to the accident, so that the jury might be misled into awarding money for the total pain and disability accruing from both, rather than for that accruing only from the accident. Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862; Dallas Railway & Terminal Co. v. Van Gilder (Tex.Civ.App.) 301 S.W.2d 724; Baltazar v. Neill (Tex.Civ.App.) 364 S.W.2d 846.

Applying these principles to the record in this case, we have concluded that the proof is insufficient to show that either of the alleged pre-existing conditions charged against either Edna Scirratt or Hazel Scir-ratt ever at any time before the accident caused either of them any pain, suffering or disability so as to show a definite infirmity. Nor do we believe that the alleged preexisting infirmities, if any, were so closely intermingled with the injuries due to the accident that the jury might be misled if the instruction was not given. We therefore hold that the evidence relating to the extrinsic infirmities is insufficient to require the special instruction in connection with, the damage issue of either of the plaintiffs^

As we view the testimony, any pre-exist-ing pulmonary fibrosis on the part of Edna-Scirratt as well as any pre-existing arthritis on the part of Hazel Scirratt can be-said to have been dormant or incipient at" the time of the collision. The lung condition of Edna Scirratt did not develop until' approximately two weeks after the accident" and the arthritic condition of Hazel Scir-ratt did not develop until almost a year after the accident.

“The damages which appellee was entitled to recover were the damages resulting to himself, conditioned as he was at the time of the injury, and not such damages as he might have been entitled to had his condition been different. That the injury resulting from the negligence of appellants may have been aggravated or more easily caused by reason of the fact that the limb had received a former injury cannot affect the question of right to or measure of’ damages. Had the latter part of the-charge refused been given, the jury would probably have felt authorized to' inquire whether the injury would have-occurred at all if the weakness from-the former injury had not existed,, which would not have been proper if the injury in fact resulted from the negligence of appellants.” Driess v. Friederick, 73 Tex. 460, 11 S.W. 493; Beaumont Iron Works Co. v. Martin (Tex.Civ.App.) 190 S.W.2d 491; Thompson v. Quarles (Tex.Civ.App.) 297 S.W.2d 321; 17 Tex.Jur.2d 188, Sec. 121.

By point nineteen defendant complains of the failure of the trial court to grant a new trial because of the argument of plaintiffs’ counsel. The argument was as follows:

“I have heard it said that allergists and dermatologists never cure anybody — they never kill anybody, either, but once you get under their care in a critical case, you are never away from constant medical treatment.”

Such argument was objected to as amounting to unsworn testimony outside the record. Upon overruling the objection the court admonished the jury that counsel’s statements were not evidence, and his opinions were only valid insofar as they are based upon evidence.

At the time of the argument counsel was arguing the question of future damages. It will be recalled that Doctor Grover testified that he was an allergist and that Edna Scirratt had been to him every two or three weeks since she was discharged from the hospital and would need continuous medical treatment for the remainder of her life. We are persuaded to believe that such statements and remarks were legitimate deductions and inferences from the testimony and as such, were not improper.

Even though the argument be construed to be improper, we cannot say that the same was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, especially in view of the prompt instruction given by the court to the jury. Rule 434, Texas Rules of Civil Procedure; Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Rogers v. Broughton (Tex.Civ.App.), 277 S.W.2d 121; Milstead v. Aynesworth (Tex.Civ.App.), 341 S.W.2d 942.

In point twenty, defendant again complains of the argument of plaintiffs’ counsel wherein he stated "and if there is one of us here who faced the possibility of someday being in somebody’s charity ward in a hospital or really knowing what poverty is, and it is not pleasant to think about — it is Hazel Scirratt.”

Defendant did not object to such argument at the time it was made. Defendant contends however that such argument was a reference to the present poverty of Hazel Scirratt and was so prejudicial that the harmful effect thereof could not have been removed by an instruction. Defendant does not contend that the harmful effect thereof resulted in excessive damages nor does defendant make any attack on the findings of the jury as to the amount of the damages being excessive.

The record reveals that at the time counsel for plaintiffs made this argument he was arguing on the question of future damages. It was an appeal to the jury to award a sufficient amount of damages so that she would not be compelled to become a ward of charity, in view of her permanent disability. It has been held that an argument which is improper only because its nature is calculated to inflame the minds and arouse the passion and prejudice of jurors is usually regarded as being of a “curable” type and that in order to require a reversal, the argument must have been such, when considered in its proper setting, as was reasonably calculated to cause such prejudice to the opposite party that an instruction by the court could not have eliminated the probability that it resulted in an improper verdict. Rules 434 and 503, Texas Rules of Civil Procedure; Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Wade v. Texas Employers' Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Ellison v. Patton (Tex.Civ.App.), 303 S.W.2d 855.

We do not regard the argument as being one wholly pointing up the present poverty of plaintiff, and thus improper, but rather as one pointing out her plight in the event the jury should fail to provide her with ample means to maintain herself. At any rate, the argument was not beyond correction by means of a proper instruction, but by failing to object, defendant waived such right, and for that reason the point is overruled.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Concepcion VARGAS, Appellant, v. Pete VACA, Appellee.
    No. 14220.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1964.
    M. M. Pena, Jr., San Antonio, for appellant.
    Pat Maloney, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Pete Vaca against Concepcion Vargas, a single woman, his next-door neighbor, seeking to establish the boundary line between their adjoining properties. He had lived on the lot known as 2416 Monterrey Street, and Concepcion Vargas had lived on the lot known as 2420 Monterrey Street in San Antonio, Texas, for a number of years. The fence which separated their lots had been there for more than fourteen years. In the summer of 1962 Vaca decided to build a new fence separating the two properties. The dispute arose between them as to the correct boundary line. A survey seemed to show that the old fence was some two feet on the land of Concepcion Vargas. Plaintiff originally instituted the suit for an injunction to restrain defendant from interfering with his building the new fence along the same line where the old fence stood, but later filed a trial amendment and made a trespass to try title suit out of the cause. The trial court rendered judgment in favor of Vaca and Concepcion Vargas has prosecuted this appeal.

Appellant contends that the court erred in rendering judgment for appellee, because his pleadings did not describe the strip of land in dispute by metes and bounds or with sufficient certainty. Appellant points out that Rule 783, Texas Rules of Civil Procedure, which sets out the requirements of a petition in a trespass to try title suit, provides in part as follows:

“(b) A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county or counties in which the same are situated.”

It is true that appellee’s original pleadings did not so describe the strip of land in dispute, but after the evidence had been introduced, the trial court permitted ap-pellee to file a second trial amendment which contained a sufficient description of the land in dispute.

Appellant contends that the court erred in permitting the trial amendment. We overrule this contention. It is apparent from the record that both parties were sufficiently aware of the strip of land in dispute and of its location. Rule 795, T.R.C.P., provides that in a trespass to try title suit the trial shall be conducted according to the rules of pleading, practice and evidence in other civil cases. Under the provisions of Rules 67 and 90, T.R.C.P., the court did not abuse its discretion in permitting the filing of this trial amendment. McDonald Texas Civil Practice, Vol. 2, § 618, p. 583.

Furthermore, appellant did not except to the court’s action in permitting the filing of the trial amendment. She did not show she was prejudiced thereby; she did not ask to withdraw her announcement of ready, nor did she ask to re-open the case and offer further evidence. Under such circumstances she failed to show that she was prejudiced by the court’s permitting the filing of the trial amendment. Dotson v. Allen, Tex.Civ.App., 259 S.W.2d 343; McDonald Texas Civil Practice, Vol. 2, § 8.07, p. 798 pocket parts; 3 Tex.Jur. 2d, § 120, p. 389.

Appellant also contends that the evidence was insufficient to show adverse possession of the strip of land in dispute for more than ten years. Appellant did not ask the trial court to make and file findings of fact or conclusions of law, and therefore “all disputed issues of fact must be resolved in favor of the judgment and all evidence in conflict therewith must be disregarded.” Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30, 32; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795, 11 A.L.R.2d 1065.

The evidence shows that appellee and his wife have occupied the premises at 2416 Monterrey Street for more than eighteen years, using and enjoying them as their home. Appellant has not set forth any evidence which tends to contradict these facts. We are of the opinion that the evidence is sufficient to show that ap-pellee has been in adverse possession of the entire premises at 2416 Monterrey Street, using and enjoying them, including the strip in dispute herein. The evidence was sufficient to support the judgment of the trial court, and accordingly such judgment is in all things affirmed.


author: CHAPMAN, Justice.

text:
    BAKER & TAYLOR DRILLING COMPANY, Appellant, v. HEMPHILL COUNTY, Texas, Appellee.
    No. 7321.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 3, 1964.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    J. D. Crow, Canadain, for appellee.
   CHAPMAN, Justice.

This is a venue case.

The parties will be referred to as in the court below.

Plaintiff, Hemphill County, Texas, sued Baker-Taylor Drilling Company for damages to one of its bridges alleged to have been caused by defendant while moving an oil field rig over the bridge. A plea of privilege was filed by defendant to be sued in Potter County, the county of its residence. Plaintiff controverted, seeking to sustain venue in Hemphill County under Section 9a of Article 1995, Vernon’s Ann. Tex.Civ.St. The trial court, after hearing the testimony of one witness, County Commissioner Edward Detrixhe, overruled the plea of privilege. Appeal is perfected from that .ruling.

The testimony shows Mr. Detrixhe lives about a mile from the broken bridge and saw some oil field trucks on the road both north and south of the bridge a day or so before he found the damaged bridge. He did not see any of them cross the bridge. On the day he saw them on the road he was working in a field three miles south of the bridge. Though he refers to the trucks in his testimony as Baker-Taylor trucks, nowhere does he give the source of his information by testifying he saw the name, “Baker-Taylor” on them or how he could possibly have arrived at the conclusion they were Baker-Taylor trucks except from hearsay.

He testified that two or three days after he found the damaged bridge he went to check to see who the tool pusher was for Baker-Taylor Drilling Company:

“Q. All right. Now, this tool pusher; what was his name?
“A. After I found him and found out who it was and all, his name was Dick Harris.
“Q. Where was he from ?
“A. I believe he lives in Perryton.
“Q. And did you talk to him?
“A. Yes sir. I contacted him in Higgins one afternoon. I looked him up.
“Q. Do you know, whether or not, he was in fact the tool pusher of Baker and Taylor?
“A. Well, he acknowledged. I suppose that he was. As far as I know, he certainly was the tool pusher.’'

This testimony was obj ected to as founded on hearsay and the court was asked to strike it. The court then took the witness as follows:

“THE COURT: Eddie was that — this when you asked him if he was a tool pusher? Did you ask him that?
“A. Yes sir. Because I was wondering; I didn’t know the man. I ask him if he was Baker and Taylor’s tool pusher for this particular rig. He said, Yes, he was.’
“THE COURT: He was the man and then, after he said that he was the man, then, you had no alternative other than to take his word. Did you assume the responsibility as such ?
“A. He told me he was the pusher of the rig.
“THE COURT: I believe that is sufficient evidence.”

Again the objection was made that the question calls for hearsay and that the answer evidences that it is based on hearsay. The court overruled the objection with the statement that “ * * * no reason why to go farther to find more evidence.”

The witness then related further conversation with the person whom he said told him he was the tool pusher in which he said: “ * * * well, there is no use of me and you fussing. We have got insurance to take care of that. * * * There is no doubt in my mind about whether we smashed it.”

Section 9a of Article 1995 upon which plaintiff seeks to sustain venue reads in part as follows:

“The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

Thus, it was encumbent upon plaintiff to prove by evidence of probative value that the negligent act of injuring the bridge was that of defendant, Baker-Taylor Drilling Company, or that of its servant, agent, or representative acting within the scope of his employment and that such act was a proximate cause of the injuries to the bridge. This much is required by Section 9a just quoted.

Even if we take at face value that the man Mr. Detrixhe talked to was Dick Harris and that “he was the tool pusher” there was no probative evidence in this record that a Baker-Taylor Drilling Company truck injured the bridge. Mr. De-trixhe testified it had not been broken by about six o’clock on the day he saw some oil field trucks on the road if he came over the road on the way home that day, and that if he did not go home that way he did not see it until the next morning. When asked by counsel if he knew whether or not the man he talked to “ * * * was in fact the tool pusher of Baker and Taylor,” he answered: “Well, he acknowledged. I suppose that he was. As far as I know, he certainly was the tool pusher.”

Such testimony is hearsay if it constitutes any testimony and in such form should have been rejected under the objections made. The general rule is that the fact of agency cannot be proved by the declarations of an alleged agent. There are well-known exceptions to this rule, as where there is independent admissible probative evidence to show prima facie that the declarant is the agent of the one sought to be held responsible or where such declarations or statements constitute a part of the res gestae. McAfee v. Travis Gas Corporation, supra. Neither of those conditions are present here. Additionally, there is not any probative evidence that Baker-Taylor Drilling Company trucks damaged the bridge. On a public road cattle trucks or grain trucks may have been over the bridge and injured it or other heavy trucks may have done so.

Mr. Detrixhe testified that about thirty days after the injury to the bridge a man whose name he could not remember came to see him and told him he was an insurance adjustor representing Baker and Taylor and offered him a settlement. This evidence certainly could not be said to constitute prima facie proof upon which other hearsay testimony could be based to show the defendant’s truck or trucks damaged the bridge and consequently were responsible for the resulting damages.

A person’s right to be sued in the county of his residence is a valuable right and should never be abridged except by clear and convincing proof that the cause of action comes under some exception to the rule enunciated under the exception claimed. Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897 (N.W.H.).

The general rule of venue is that a defendant shall be sued in his own county, and as many and important as are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969.

An affirmance of this case would have to be based on conjecture which we do not feel justified in doing.

It is obvious this venue question has not been fully developed. Under such circumstances it may be reversed and remanded instead of reversed and rendered, and it is accordingly so ordered.

      . Webb-North Motor Co. v. Ross, Tex.Giv.App., 42 S.W.2d 108G (writ dismissed).

      . Webb-North Motor Co. v. Ross, supra; Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106 (writ refused); Stokes Bros. v. Thornton, Tex.Civ.App., 91 S.W.2d 756 (N.W.H.)

      . McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54.

      . Stokes Bros. v. Thornton, supra; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458.


text:
    Ignacio CANTU et al., Appellants, v. M. J. RODRIGUEZ, County Judge, et al., Appellees.
    No. 14198.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 12, 1964.
    Rehearing Denied March 11,1964.
    Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for appellants.
    Atlas, Freeland, Schwarz & Gurwitz, Mc-Allen, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Starr County, Texas, by Ignacio Cantu and some twenty-five other property-owning, tax-paying qualified voters of Starr County, against Hon. M. J. Rodriguez, County Judge, the four County Commissioners and the County Auditor, each being sued individually and in their official capacity, and other individuals and corporations, seeking to enjoin the Commissioners’ Court of Starr County from issuing time warrants in the total sum of $340,000.00. The trial court denied the injunction and Ignacio Cantu and the other plaintiffs have prosecuted this appeal.

The minutes of the regular meeting of the Commissioners’ Court of Starr County on February 14, 1963, summarized briefly by appellants, reveal the following:

“1. Letter to the Court from James C. Tucker and Co., Inc. by Harris R. Fender, Vice President, stating the understanding that Starr County intends to issue $340,000 of road and bridge warrants payable from the constitutional road and bridge fund to be later refunded into refunding bonds, and that Tucker Company agrees to buy and Starr County agrees to sell these warrants to be dated March IS, 1963, in denominations of $1,000 each, bearing 6% per annum interest and maturing over a period not to exceed 35 years. Tucker Company agrees to pay par value. The Commissioners Court accepted ‘the above proposition.’
“2. Letter to the Court from the same Harris R. Fender, but as an individual, offering his services as financial advisor to the County in connection with such warrant issue for a cash fee of 3% of all securities authorized and issued. The Commissioners Court noted its acceptance in the minutes.
“3. Order of the Commissioners Court directing the County Clerk and County Judge to execute an agreement on behalf of Starr County with Gibson, Spence and Gibson, attorneys from Austin, for legal services in connection with1 voting, issuance and approval of ‘all bonds and warrants to be issued by Starr County within a period of Five (5) years.’ The agreement signed by all parties is then set out, providing compensation of 2% of the par amounts of any bonds issued, and 3% of par amount of warrants and bonds issued to refund same.
“4. Resolution of Commissioners Court stating that the Court has ‘heretofore determined the advisibility and necessity’ of issuing such time warrants to evidence ‘indebtedness to be incurred in constructing permanent road and bridge improvements in said County, including claims for labor, machinery, equipment, materials and supplies, and for purchasing necessary right-of-way for public roads in the County, and for the drainage and flood control facilities, including the purchase of any necessary land, for the protection of the County-roads, and for engineering costs in connection with all of said work, and incidental expense in connection therewith.’ The County Judge is directed to publish notice of intention to issue not to exceed $340,000 of such1 warrants as required by Chapter 163, Acts of the 42nd Legislature, as amended (Art. 2368a, V.C.S.). The notice was published in the Rio Grande Herald.”

On March 11, 1963, this suit was filed. Thereafter, but upon the same day, the Commissioners’ Court at a regular meeting adopted an order authorizing the issuance of the above described time warrants against the road and bridge fund of Starr County in the total sum of $340,000, in denominations of $1,000 each, payable to bearer, to be dated March IS, 1963, and to bear interest from such date at 6% per an-num. The first twenty warrants were to mature in 21 years, that is, on March 15, 1984, and the remainder, under a schedule extending to 1998.

The trial court at defendants’ request set the case down for hearing on March 21, 1963, at which time defendants filed their answer, and the trial court, over appellants’ objection, proceeded to hear and dispose of the entire cause on the merits. Appellants urge that they did not know until they arrived in court that the cause was set down on the merits, and requested leave to prepare a written motion for continuance, which request was denied.

Appellants’ first point is that the trial court erred in not enjoining the issuance of the warrants, “since the proposed issuance is actually an attempt to issue bonds without an election and other requisite formalities.”

We sustain the point. A county warrant is evidence of a debt owed by the county to the party to whom the debt is due. A county warrant, whether an interest bearing time warrant or not, should never be issued and delivered to anyone except in payment of an existing claim against the county. The warrant follows the debt hut does not precede it. If a county wishes to secure cash before the debt is created it should issue bonds approved by the voters as is required by law. 15 Tex.Jur.2d, p. 369, § 145 et seq.; Ashby v. James, Tex.Civ.App., 226 S.W. 732.

Warrants issued in violation of Art. 2368a, Vernon’s Ann.Civ.Stats., as amended by Acts 1953, 53 Leg., p. 383, ch. 105, which provides the steps to be taken by a county wishing to issue more than $100,000 in interest bearing time warrants, are void. It is quite clear from reading the entire Article 2368a, supra, as amended, that first there must be a proposed contract submitted for bids, containing a provision that it is to be paid for by time warrants, and there must be two weeks notice in the manner provided in § 5 of said article, and the expenditure cannot be authorized until the expiration of the time for filing the petition for a referendum vote has expired. Secs. 5 and 9, Art. 2368a, supra.

Section 4 of said Article provides, "If, by the time set for the letting of the contract, as many as ten per cent (10%) in number of the qualified voters of said county, * * * petition the Commissioners’ Court, * * * in writing to submit to a referendum vote the question as to the issuance of bonds for such purpose, then the Commissioners’ Court, * * * shall not be authorized to make said expenditure, and shall not finally award said contract unless the proposition to issue bonds for such purpose is sustained by a majority of the votes cast at such election.”

As the Commissioners’ Court of Starr County has never submitted a contract for bids to expend the proposed $340,000 for permanent road and bridge improvements, the time for a voters’ petition for a referendum vote as provided for in Sec. 4, has not arrived. If, as and when the Commissioners’ Court submits such proposed contract for competitive bids, gives the proper notice, and complies with1 all of the provisions of Art. 2368a, supra, the voters, if they desire a referendum, must file their petition before the date for the letting of the contract. Until these preliminary steps are taken, the issuance of the proposed warrants would be void. Secs. 5 and 9, Art. 2368a, supra.

Appellees rely upon the case of Lasater v. Lopez, 110 Tex. 179, 217 S.W. 373 (1919). We do not consider the case in point here. There the warrants had already been sold and the county had received the benefit of their proceeds. Furthermore, Art. 2368a, as amended in 1951, 52nd Leg. p. 281, ch. 164, Sec. 1, and subsequent amendments found in Vernon’s Ann.Civ.Stats., 1963 Cumulative Annual Pocket Parts were not in effect.

We regard the case of Adams v. McGill, Tex.Civ.App., 146 S.W.2d 332, more nearly in point, because there the proposed contract had been submitted for competitive bids and proper notice published.

The judgment of the trial court denying the injunction is reversed, and judgment here rendered granting the injunction as prayed for by appellants.


author: McNEILL, Justice.

text:
    KANSAS CITY SOUTHERN RAILROAD COMPANY, Appellant, v. Wilbert GUILLORY, Appellee.
    No. 6662.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 6, 1964.
    Rehearing Denied March 11,1964.

      Orgain, Bell & Tucker, Beaumont', for' appellant.
    Woodson E. Dryden, Jack M. Carson, Beaumont, for appellee. ' -.’W
   McNEILL, Justice.

Appellee- sued appellant for damages':be-' cause of- an injury'fece'ived by hiuP in’the course off his employment' -for. Gulf . ¡States1 Asphalt Company. He alleged he was loading cartons of asphalt'in a freight car placed upon the. asphalt copipgny’s piding in its yard in Béaumoñt, and while working in this’freight-car he'slipped and-fell'on small plastic pellets' which were on the floor in a dark end of the boxcar causing .him,.to sustain a broken leg and other injuries. As basis for his action he alleged that in furnishing..the car to the shipper, the asphalt company^ for loading asphalt, appellant was negligent-,in failing to clean out the boxcar, in failing to warn him jof the plastic pellets on the floor of the ".car, in furnishing the car in a dangerous condition and in failing to furnish»plainti^ a safe place to work. Appellant will sometimes be referred to herein’as the Railway Company.

Several grounds of negligence were submitted to the jury. These were: whether the Railway Company failed to properly clean the boxcar and whether this was neg-' ligence; whether it delivered said car to the asphalt company with plastic pellets on the floor and whether this was negligence; whether the Railway Company failed to warn appellee that said boxcar had plastic pellets on the floor and .whether this was' negligence; whether the Railway Company delivered said car in a dangerous condition and whether this was negligence. Following these several issues were issues of proximate cause. All .of said issues were found favorably to appellee. There were a number of issues submitted on contributory negligence but they were also found in favor of appellee. Judgment was rendered upon said verdict for appellee- and this appeal resulted.

,, Appellant attacks - the judgment from various standpoints. We will not attempt to state all the points l?,ufc content ourselves with a summary of the pertinent questions involved. The primary question; as readily-recognized and stated by .the,parties, is this: “The jugular vein of ,^his case is the trial court’s assumption throughout its charge, of qne basic duty — the duty to clean or sweep, the floor of a boxcar.” The Railway.Company asserts the trial court erred in such assumption. The briefs of-the parties indicate much research on this question and we have done some on our own. Although there seems - to be a general unanimity of authority that a railway company is required to exercise ordinary care in order that a reasonably safe car may be furnished for those using it, 75 C.J.S. Railroads § 924, pp. 333-336, the cases all appear to involve some defect of construction or maintenance of the car itself. In the research made, no case'has been found which defines the duty, if any, of a railway company furnishing a boxcar to ascertain whether the car contains a foreign substance which may injuriously affect a shipper’s employees while working therein.

Texts are quoted in appellee’s brief. These are: Sec. 392, Restatement of the Law of Torts, which reads in part:

“One who supplies to another, directly or through a third person, a chattel to he used for the supplier’s business purposes is subject to liability to those for whose use the chattel is supplied, or those whom he should expect to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied :
“(a) if the supplier has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied.”

Prosser on Torts:

“ * * * the prevailing view is that a railway company is under a duty of reasonable inspection before turning over its cars, and that the obligation extends to employees of a shipper, of a consignee, and of a connecting carrier.” Handbook of Prosser on Torts, p. 686.

It is singular that there is a dearth of adjudicated cases on the very point involved. Is that, however, to be taken necessarily that no duty rests upon the part of the furnishing carrier to see that the car furnished is free of foreign substances that would be a hazard for those who would work in the car loading it? Paucity of authority is signal to “stop, look and listen”. However, that alone is not decisive.

If it is the duty of the furnishing carrier to see that its chattel, the freight car, is free of hazards for those who would use it, what is the test to apply? As set forth in 75 C.J.S. Railroads § 924, p. 333, we think the proper general rule is that the railroad is under a duty to use ordinary care to furnish a car that is reasonably safe. See also, 3 Elliott on Railroads, 2nd Ed., Sec. 1265-c, p. 641. The boxcar is a chattel and the duty of one who furnishes a chattel for use is likened to that of an occupier of land to an invitee. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99. It is recognized that those who work in a freight car, as was appellee, are invitees of the railroad — they have a lawful right there. Fort Worth & D. C. Railway Co. v. Hambright, Tex.Civ.App., 130 S.W. 2d 436; 75 C.J.S. Railroads § 905, p. 289; 3 Elliott on Railroads, 2nd Ed., Sec. 1265-c, p. 641. It is said that an occupier of premises owes ordinary care to see that the premises are in a reasonably safe condition for use by his invitees. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This is a general and broad statement. So, also is the statement above that a railway company owes the duty of ordinary care to furnish a reasonably safe car for those who would work in it. While general and broad in statement the application of these legal duties is somewhat narrower. As said, in commenting upon this broad statement of a land occupier’s duty, we quote Justice Pope in Camp v. J. H. Kirkpatrick Co., Tex.Civ.App., 250 S.W.2d 413 at p. 416:

“A more correct statement of an owner’s duty would be that he is under a duty to use reasonable care to make and keep the premises free from danger to invitees when the danger is known or should be known by the proprietor.”

The duty is not due an invitee that the premises be altered or changed to obviate known and obvious dangers for he takes the premises as they are. Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, 374. The occupier of premises ha's no duty to warn a business invitee of dangerous conditions that are obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupier. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497. The law of this state in our judgment is well summarized in 65 C.J.S. Negligence § 50, p. 541:

“The duty to keep premises safe for invitees applies only to defects which are in the nature of hidden dangers, and the invitee assumes all normal or obvious risks attendant on the use of the premises.”

And in 65 C.J.S. Negligence § 51, p. 545:

“In order to impose liability for injury to an invitee, the dangerous condition must have been known to the owner or occupant or have existed for such time that it was his duty in the exercise of ordinary care to know of it.”

Further in this last section, it is said:

“The inviter has a duty to exercise reasonable care to discover defects or dangerous conditions on the premises; he will be charged with knowledge of, and he will be held liable for injuries resulting from, any dangerous condition which he could have discovered in the exercise of ordinary care, but he will not be held liable for defects which would not have been disclosed by a reasonably careful inspection, even though no such inspection has been made.”

Roosth & Genecov Production Co. v. White, supra, involved an injury to an employee of an independent drilling contractor who was working on an oil derrick owned and furnished by another party. Because of a collapse of the derrick the employee was injured. The court relying in part upon Sec. 392, Restatement above quoted, held that it was the duty of the supplier of the derrick to have made a reasonable inspection thereof to determine whether defects existed before it was furnished. Likewise, if the condition of the boxcar floor where appellee fell was not open and obvious to him, we hold it was the duty of the railway company to have made a reasonable inspection of the boxcar furnished before it was delivered to the asphalt company. And if the pellets should have been discovered on such an inspection it was its duty to remove or warn of them. Whether the pellets, upon such an inspection would have been discovered under the facts in this record was a jury question.

Appellant argues that if it owes any duty in this respect its duty is discharged by a mere “running-type” inspection; that is an inspection where cars are pulled between two inspectors watching the cars from the ground. We disapprove of this position. The carrier knew that the asphalt company, the shipper, was going to load the car with asphalt and that this would require men to enter and work inside the boxcar. Its duty is commensurate with this knowledge. Railway Company also relies upon Gulf, W. T. & P. Ry. Co. v. Wittnebert, 101 Tex. 368, 108 S.W. 150, 14 L.R.A.,N.S., 1227, holding that the only duty of the carrier was to make an external examination of the car and to place it in proper position to be unloaded. But there the carrier was the final or ultimate carrier, while in the present case it was the initial carrier. There was no evidence offered of any governmental regulation, nor of any custom of the carrier as to cleanliness of a furnished car. If custom existed, it would not be conclusive. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445.

The issues of negligence submitted to the jury were erroneous; they placed an improper and undue burden upon the Railway Company. It is common knowledge that frieght hauled in these cars is usually rough, heavy and difficult to ship in lighter vehicles; and that after the freight is removed trash is often left behind. In respect to the custom of cleanliness, one could hardly compare the rough floor of a boxcar with the shiny, polished floor of the storekeeper. The liability of the Railway Company here rests upon its knowledge, actual or constructive, of the complained of condition. No issue or issues inquiring into this were submitted to the jury and objection was properly reserved thereto.

Appellee asserts that since the boxcar was in the possession of the Railway Company for an undetermined length of time immediately previous to the delivery to the asphalt company, and since the Railway Company made no explanation of nor offered evidence of any attempt at inspection or cleaning the car, that this is sufficient evidence to uphold the findings of the jury. This, perhaps, would be true if the issues which were legally raised had been properly submitted. See Billingsley v. Texas & N. O. R. R. Co., 131 Tex. 410, 115 S.W.2d 398. It cannot apply to the situation before us. There was no finding that the Railway Company had knowledge either actual or constructive of the pellets nor that they could have been discovered in the exercise of ordinary care.

It is shown that two of appellee’s fellow workmen were instructed by the asphalt company that if the cars were dirty to clean them out, including the one involved, preparatory to loading. It does not appear that any inspection or cleaning out was done by them in the car discussed. Appellant asserts tho, that since any obligation it had in this regard was undertaken by the appellee’s employer, the sole cause of his injury as matter of law was the failure of appellee’s fellow employees to sweep the boxcar. We disagree. Roosth & Genecov Production Co., supra; Sec. 393, Restatement of the Law of Torts. See also Gulf, C. & S. F. Ry. Co. v. Irick, Tex.Civ.App., 116 S.W.2d 1099 (1102); Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299.

While there were various points urged to the different issues submitted the questions may not arise on another trial and we therefore forego comment except to say that it appears to us the inferential-rebuttal defensive issue as to whether appel-lee’s injury was sustained in another place in the asphalt company’s plant and at another time should have been submitted.

Because the case was submitted on the wrong theory and believing justice will be better subserved thereby, we reverse the judgment of the trial court and remand the case for a new trial. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619.

Reversed and remanded.