text:
    INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellant, v. Lou K. PEARSALL et vir, Appellees.
    No. 16994.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 8, 1967.
    Rehearing Denied Jan. 5, 1968.

      James A. Williams, of Bailey, Williams, Weber & Allums, Dallas, for appellant.
    Burt Berry, Dallas, for intervenor.
    Gerald W. Moss and Ben Warder, Jr., of Carter, Gallagher, Jones & Magee, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant International Business Machines Corporation, hereinafter called IBM, has appealed from a judgment of $28,740 awarded as damages to appellees Lou K. Pearsall and husband, Richard A. Pearsall, because of injuries sustained by Mrs. Pear-sall when she fell over a tool kit left in an aisle by an employee of IBM.

On December 13, 1962 Harold Wayne King, a service man employed by IBM, went to the offices of United States Gypsum Company, hereinafter called Gypsum Company, to repair a typewriter. Finding the platen, the roller on the typewriter, was not repairable, he ordered a new platen to be sent out.

On December 14, 1962 King returned to the Gypsum Company offices and found that the delivery service man had already installed the new platen. However, some adjustments were necessary so King went to work to finish the repair job on the typewriter. He placed his tool kit in a main aisle flush against the side of the desk on which the typewriter was situated.

King’s instructions from his employer were to place his tool kit if possible underneath the desk in the well or space provided for the secretary’s feet while the secretary sat at the desk. If that could not be done his instructions were that the kit should be placed in some aisle not much traveled, not a main aisle.

The tool kit when closed measures about 13 by 16 inches with the top 7 inches from the floor; when open the top of the lid is about 16 inches from the floor. The kit looks very much like a small suitcase.

King testified that on the occasion in question he did not place his tool kit in the well underneath the desk because a secretary, Mrs. Boyd, was sitting at the desk. So he placed the kit in an aisle, the main aisle, flush against the side of the desk while he worked on the typewriter from the opposite side of the desk from Mrs. Boyd.

About the time King finished his task Mrs. Boyd left her desk. King then walked around to the side vacated by Mrs. Boyd to make a final inspection. But he did not move the tool kit. He let it remain in the main aisle though there was a lesser aisle available to the rear of the desk.

Mrs. Pearsall was an employee of Gypsum Company. She was chief teletype operator and handler of all communications, both teletype messages and mail. She sorted the messages and mail for delivery to the proper departments. Every hour she made the rounds of all the desks to deliver messages and mail and to pick up outgoing mail.

On the morning of December 14, 1962 Mrs. Pearsall had completed a round of the desks. The desk where the accident occurred was the last pickup station on the round. She approached the desk in an aisle where King had been standing while working on the typewriter. However, he had left that position and gone to the other side of the desk before Mrs. Pearsall came along. She picked up the mail and was rounding the corner of the desk into the main aisle to go to her office when her foot struck the tool kit, causing her to fall and to sustain serious injuries. The tool kit lay- with its back flush against the desk about 6 inches from the corner. Mrs. Pearsall was carrying a stack of mail on her left arm. Her right hand was placed on top of the stack.

Mrs. Pearsall knew that waste baskets were sometimes placed in less traveled aisles back of the places where the secretaries sat at their desks and she was accustomed to be alert to avoid such obstructions in those aisles. But obstructions were rarely placed in the main aisle and then only temporarily.

There was some difference in the testimony as to whether the kit was opened or closed when Mrs. Pearsall fell over it. King said it was open. Mrs. Pearsall was under the impression that it was closed at that time because it was closed when she first saw it after the fall and she did not hear any click that the top would have made as it closed after she hit it. We consider the question immaterial. The lid of the kit if open would have been flush against the side of the desk and it would have been the last part of the kit to be seen as Mrs. Pearsall rounded the corner of the desk into the main aisle.

A jury made findings to the effect that (1) the failure of King to remove the kit from the place where he originally placed it was negligence and (2) such negligence was a proximate cause of the accident; (3) Mrs. Pearsall did not fail to keep a proper lookout, (4) nor should she have known of the presence of the service kit before she fell.

Appellees filed a motion for judgment on the verdict. Appellant filed motions for judgment non obstante veredicto and for the court to disregard certain named answers of the jury. The court overruled appellant’s motions and sustained appel-lees’ motion.

In its brief appellant lists twenty-one points of error. Appellant charges that there was no evidence, or there was insufficient evidence, to support the jury’s findings in favor of appellees; and that the jury’s finding that it was negligence for King not to remove the kit from the place where he originally put it placed a greater burden, duty or responsibility upon appellant than is allowed or permitted by law. We think there is ample evidence to support the jury’s findings.

The most serious contention of appellant is that the obstruction (that is, the kit) in the aisle was open and obvious, therefore as a matter of law no duty arose to require appellant to remove the object. In support of this view appellant cites a lecture by Justice Greenhill, as reproduced in 28 Texas Bar Journal 21 (January 196S); also, among others, the following cases: Medallion Stores, Inc. v. Eidt, 405 S.W.2d 417 (Tex.Civ.App., Texarkana 1966, writ ref’d, n. r. e.); Lederman v. Cunningham, 283 S.W.2d 108 (Tex.Civ.App., Beaumont 1955, no writ); A. C. Burton Co., Inc. v. Stasny, 223 S.W.2d 310 (Tex.Civ.App., Galveston 1949, writ ref’d); Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); Fergeson v. National Bank of Commerce, 174 S.W.2d 1015 (Tex.Civ.App., Galveston 1943, no writ).

We do not agree with appellant. The “no duty” doctrine applies only to occupiers of premises. The doctrine is not applicable here because appellant cannot be considered an occupier of premises since appellant did not have exclusive possession of the area in which its employee, King, was working. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).

As to the “volenti” doctrine, it is an affirmative defense, which appellant neither pleaded, nor did appellant request that appropriate issues be submitted. Moreover, there is no evidence that Mrs. Pearsall knew of or appreciated the danger offered by the existence of the tool kit lying in wait for her around the corner of the desk. Halepeska v. Callihan Interests, Inc., supra.

Appellant further contends that Mrs. Pearsall was guilty of contributory negligence as a matter of law. As we have already said, we believe that there was ample evidence to support the jury’s verdict exonerating Mrs. Pearsall of contributory negligence. Certainly we cannot hold that the facts of this case bring it within those situations where the act of a plaintiff is “so opposed to the dictates of common prudence that we can say, without hestitation or doubt, that no careful person would have committed it.” Blinks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357, 360 (1950). See also Harvey v. Seale, 362 S.W.2d 310, 313 (Tex.Sup.1962); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 622 (1950); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941).

In two cross points appellees complain because the court, though it sustained appellees’ motion for judgment based on the jury’s verdict, refused to include the sum of $1,200 as reasonable and necessary hospital bills in the judgment of $28,740.

In its motion asking the court to disregard the jury’s answers to certain issues appellant did not attack the jury’s finding of $1,200 as reasonable and necessary hospital bills. The court on its own motion refused to include such sum in the amount of the judgment in favor of Mrs. Pearsall on the ground that there was no evidence to support the finding. Appellees duly objected and excepted to the action of the court.

We are of the opinion that the cross points properly presented the question on this appeal. English v. Century Indemnity Co., 342 S.W.2d 366, 370 (Tex.Civ.App., San Antonio 1961, no writ); Maloney v. Strain, 410 S.W.2d 650, 653 (Tex.Civ.App., Eastland 1966, no writ).

We are also of the opinion that in the absence of a motion by appellant the trial court was without authority to disregard the jury’s answer on the court’s own motion. Beal v. Great American Indemnity Co., 322 S.W.2d 399, 402 (Tex.Civ.App., Texarkana 1959, no writ); Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526 (1940); Christopherson v. Whittlesey, 197 S.W.2d 384 (Tex.Civ.App., Beaumont 1946, writ ref’d n. r. e.); Insurors Indemnity & Ins. Co. v. Associated Indemnity Corp. et al, 139 Tex. 286, 162 S.W.2d 666, 670 (1942); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970 (1936); 4 McDonald’s “Texas Civil Practice,” Sec. 17.32, page 1415; Rules 300 and 301, Vernon’s Texas Rules of Civil Procedure.

The judgment of the trial court will be modified so as to include the sum of $1,200 as reasonable and necessary hospital expenses, making a total recovery in favor of appellees of $29,940.

As so modified the judgment is affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    GREAT CENTRAL INSURANCE COMPANY, Appellant, v. M. D. COOK, Appellee.
    No. 16996.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 15, 1967.

      L. W. Anderson, Dallas, for appellant.
    Don Hinds, of Yarborough, Yarborough & Johnson, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Alleging that on the 17th day of March, 1966 his service station had been burglarized, causing him to lose property valued at $2,500, M. D. Cook brought this action against Great Central Insurance Company to recover for such burglary loss pursuant to the terms of an insurance policy issued by defendant and which was in full force and effect at the time of such loss. The insurance company answered with a special plea that its policy defined burglary as meaning the felonious abstraction of insured property from within the business premises by a person making felonious entry therein by actual force and violence as evidenced by visible marks made by tools, etc. upon, or physical damage to, the exterior of the premises at the place of such entry, and since in this instance there were no visible marks of forcible entry the policy provisions were not applicable and the insurance company was not liable for the loss. It filed its motion for summary judgment based upon the same proposition and pointed to the sworn proof of loss filed by Cook in which he had stated that there were no visible signs of entry. The court overruled the motion for summary judgment.

Following trial before the court and a jury a special issue verdict was returned in which it was found that (1) a burglary, as that term was defined by the court, was committed upon the premises of plaintiff on March 17, 1966 and (2) plaintiff sustained loss in the sum of $1,640 as a direct and proximate result of such burglary. Based upon such verdict the court rendered judgment for Cook in the amount of $1,500, with interest, being the maximum amount of insurance provided in the policy.

By its first point of error appellant contends that the court erred in failing to sustain its motion for summary judgment. The trial court’s action in overruling appellant’s motion for summary judgment may not be considered by us. The precise question was presented to the Waco Court of Civil Appeals in Texas City Hotel Corp. v. Wilkenfeld, 410 S.W.2d 860, 861 (Tex.Civ.App., Waco 1966, writ ref’d n. r. e.), wherein the court said:

‘Where there has been a conventional trial on the merits, as here, the interlocutory order overruling a motion for summary judgment is not reviewable. Ackermann v. Vordenbaum (Tex.Sup.1966), 403 S.W.2d 362, 365.”

To the same effect see Triplett v. Shield, 406 S.W.2d 941 (Tex.Civ.App., Eastland 1966, writ ref’d n. r. e.), citing Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). Appellant’s first point must be overruled.

By its second point appellant asserts that the trial court should have granted its motion for instructed verdict because (1) there was no evidence to prove coverage for loss and (2) the proof of loss shows as a matter of law that no coverage existed for the loss in question.

The policy sued upon, and admittedly issued by appellant insurance company in consideration for premiums paid, was a “Combination Business Burglary, Robbery and Residence Theft Policy” and contained the following material provisions:

“DEFINITIONS
“(a) ‘Premises’ means the interior of that portion of the building at the location designated in the declarations which is shown in the declarations as occupied by the assured in conducting the business as stated therein, but shall not include (1) showcases or show windows not opening directly into the interior of the premises, or (2) public entrances, halls or stairways.
“(b) ‘Burglary’ means the felonious abstraction of insured property (1) from within the premises by a person making felonious entry therein by actual force and violence, of which force and violence there-are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of such entry, * * * or (3) from within the premises by a person making felonious exit therefrom by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the interior of. the premises at the place of such exit.”
“CONDITIONS
******
“6. Assured’s Duties When Loss Occurs. Upon knowledge or discovery of loss or of an occurrence which may give rise to a claim for loss, the assured shall:
(a) give notice thereof as soon as practicable to the company or any of its authorized agents and and also to the police;
(b) file detailed proof of loss, duly sworn to, with the company within four months after the discovery of loss.”-

It is undisputed that about 7:00 a. m. on the morning of March 17, 1966 M. D. Cook opened his service station at 1132 East Led-better Street in Dallas and discovered that a burglary had occurred. He testified that the night before he had locked up the station, including all of the doors. When he arrived at the station the next morning he found that the door to the men’s restroom had been opened and that the towel rack had been pulled away from the wall within the restroom causing an opening through which the burglar or burglars had entered. Cook immediately telephoned the police who sent an officer to investigate the loss. Cook also notified the insurance company immediately and a duly authorized representative of appellant, Mr. Cecil Wilder, went out to Mr. Cook’s place of business several days later and prepared the proof of loss himself. The proof of loss was upon a form supplied by the insurance company and Mr. Wilder testified he filled it in based upon facts as told him by Mr. Cook. Mr. Cook testified that he signed the proof of loss and appeared before a notary public and swore that the statements contained in the proof of loss were true “to the best of his knowledge and belief.” Upon the printed form of proof of loss was the statement: “Describe occurrence fully”, to which Mr. Wilder had written in “Must have had key to get in.” Thereafter appeared the printed question: “Were there visible marks of forcible entry?” to which Mr. Wilder had written in “No”. The next printed statement was “Describe fully” to which the answer had been written in “Unlock rest room. Pull towel rack out Went through hole.”

Mr. Wilder testified that he examined the premises at the time he took the proof of loss and based upon his experience in investigating such claims he was of the opinion that there were no visible signs of forcible entry on the restroom door. He stated that after making his inspection and after getting the information from Mr. Cook which he put down on the claim form he then advised Mr. Cook that “it was not covered.” He said: “I denied the claim, I says, ‘Mr. Cook, it has to be marks of forceable entry to the exterior of the building,’ which there were not any.” He said that he told Mr. Cook that even though the claim was denied that he should go ahead and send in the proof of loss and “let the company make it official.”

Mr. Cook testified that Mr. Wilder wrote down the answers in the proof of loss and told him that the company would pay the claim if he would send in the proof of loss.

The testimony as to visible signs of forcible entry is conflicting. Mr. Cook testified that when he arrived at work the morning following the burglary that he observed two or three little marks right around the knob of the restroom door at a point where the tongue of the door lock pushes in. He said that the tongue of the door lock was bent in. He could not tell from the type of marks that were there what type of instrument was used.

Mr. Ezra Smith, who had been employed at the service station, testified that when he arrived at work on the morning in question he observed scratches on the door of the restroom; that such scratches were around the door lock; that such scratches were from an inch to an inch and a half long. He said:

“Q How big were they?
“A They looked like a pinch bar or big screwdriver or something like that.
“Q I see. Did they make a groove in the paint in any way?
“A Yes, sir.
“Q Take the paint off?
“A Yes, sir.”

Several witnesses, including the insurance representative and the police officer making the investigation, testified that they observed no scratches or marks on the outside of the restroom door.

The testimony concerning forcible exit, as covered by Subdivision (3) of the definition of “Burglary” contained in the policy, may be summarized, as follows:

Mr. Cook testified:

“Q Did you observe any type of damage done to the premises of the service station when you came in that morning?
“A Yes, when I found the dispenser rack in the bathroom torn out, I went back in the station and looked over to see if I could tell that anything was gone, I didn’t know what it was at the present time, then I called the police. Then the door on my grease rack, it has two, one grease rack and one wash rack and on the inside the lock had been broken off and the door was opened from the inside where they could go out, I guess. They entered through the rest room door, and undoubtedly broke the lock off of the grease rack door where they could raise the door open to get in.”

He further testified:

“Q When the police came to investigate this burglary did you draw their attention to any other damage to the service station other than in the bathroom, men’s rest room?
“A Yes, sir.
“Q Would you tell the jury where ?
“A Up on your grease rack and wash rack door you have a sliding lock that goes through metal runner on overhead doors and those locks had a padlock on each one of them in case a glass was broken out they would still have to break that lock to get in. That lock was twisted off and broken and laying beside it. I showed it to the policeman and also Mr. Wilder. The padlock was still laying there.
“Q I want you to describe this cash register that was taken in this burglary.
“A It was approximately this wide, this high, and it sets on a cash drawer under the bottom of it. Oh, I say its two and a half foot wide at least, and approximately that high and has 110 keys on it.
“Q Could it have been taken through this towel rack ?
“A No, sir.”

On cross-examination he testified:

“Q Mr. Cook, you have told us that apparently there was some exit made through a grease rack, a door near the grease rack, is that what you’re saying?
“A Yes, sir.
“Q Where they unlocked the door and went through it.
“A The lock was broken off. We had padlocks and they got the sliding locks but we also had padlocks on all three doors.
“Q And you are claiming now that was where they might have exited although you don’t know?
“A No, sir, I don’t know, but they had no reason to break that lock off.
“Q They could have gone out the front door?
“A Not unless they busted out.
“Q Can you unlock the front door from the inside?
“A No, sir.
“Q How do you unlock the front door?
“A With a key.
“Q You mean the key is the only way ?
“A Only way.”

Further on cross-examination he testified that the lock had been broken and the door opened but there was no damage to the door itself, only the lock.

M»'. Wilder testified in response to a question .hat he did not find any lock that had been broken off on the grease rack door but admitted that he did not look at it. Officer Moroney, who investigated the matter for the Police Department, testified that the opening in the restroom where the towel rack had been tom off was about a foot wide. He said that in his opinion the cash register could not have been carried out through the towel rack hole. He said that he did not make any investigation to determine where exit had been made.

Prior to the time the court submitted the charge to the jury the insurance company filed its motion for instructed verdict based solely upon the proposition that under the terms and provisions of the policy there must be visible marks of forcible entry and since the proof of loss filed by Mr. Cook affirmatively said there were no visible signs of forcible entry Cook was precluded from bringing suit upon the contract. Nowhere in appellant’s motion for instructed verdict was it assigned as a ground therefor that there was no evidence in the record of forcible entry or exit which would justify the submission of an issue thereon.

The court submitted Special Issue No. 1 which inquired of the jury to find if a burglary, as that term was defined, was committed on the premises of Plaintiff Cook on or about March 17, 1966. In connection with this issue the court defined “burglary” in the precise language of the policy itself, copied above. Appellant did not object either,,to the submission of the issue itself nor to the definition accompanying same. The jury found that there had been a burglary.

In view of the facts and circumstances disclosed by this record, as summarized above, we are of the opinion that the trial court did not commit error in overruling appellant’s motion for instructed verdict and, accordingly, the point presented must be overruled.

Appellant contends that when an insured complies with the policy provisions concerning furnishing sworn proof of loss, and such proof demonstrates upon its face that the policy provisions are not applicable to such state of facts, the insured is precluded from recovery on the policy, as a matter of law. In support of its contention appellant cites Bank Savings Life Ins. Co. v. Milan, 70 S.W.2d 294 (Tex.Civ.App., San Antonio 1933, writ ref’d), and Shulkin v. Travelers’ Indemnity Co., 267 Mass. 160, 166 N.E. 552 (1929), decided by the Supreme Judicial Court of Massachusetts.

The appellee responds to appellant’s contention by asserting the rule of law to be that absent facts which would create an estoppel against the insured he is not bound, as a matter of law, by the statements contained in the proof of loss submitted to the insurance company and may alter, change or contradict such statements upon the trial of the case.

A great deal of research of the authorities throughout the United States has led to the conclusion that the decided cases are not uniform on the question here presented. A fair statement of the cases is found in a copious note in Annotation, 58 A.L.R.2d 429, and at page 433 it is stated:

“In making a proof of loss, the insured is usually required to state the cause or origin of the loss for which coverage is claimed, or to relate the essential facts giving rise to the casualty. Such statements have become major issues espe-dally where they narrate circumstances which if true avoid policy coverage. Generally, the insured has been permitted to explain or contradict such statements, and to introduce evidence tending to show that the facts were other than as he originally stated them. But sometimes the insured has been held to such statements, largely because of failure to show justification for not having submitted an accurate statement regarding the origin of the claim earlier or in the first instance.”

In support of the general rule the decision of this court in Heckert v. American Casualty Co., 129 S.W.2d 424 (Tex.Civ.App., Dallas 1939), is cited wherein Justice Young, speaking for this court, said that where the insured had made statements in proofs which were contrary to subsequent testimony the prior inconsistent statements contained in the proof were not binding but that it was the jury’s province to reconcile such inconsistencies.

No doubt exists in the law that a stipulation in an insurance contract requiring notice and proof of loss within a reasonable time, and on reasonable terms, is valid. 32 Tex.Jur.2d, § 369, p. 569. The obvious purpose for such a provision requiring proof of loss is to afford the insurer an opportunity for investigation, to prevent fraud and imposition upon it, and to enable it to form an intelligent estimate of its rights and liabilities before it is obliged to pay. Couch on Insurance, 2d Ed., § 49:373; Texas Life Ins. Co. v. Jordan, 253 S.W.2d 906 (Tex.Civ.App., Fort Worth 1953, writ ref’d). It is also well settled that substantial compliance with the provision that proof of loss be made is all that is ordinarily required of an insured. 32 Tex.Jur.2d, § 372, p. 577. Concerning the conclusiveness of the proof of loss and right of the insured to correct such proof the general rule is stated in Couch on Insurance, 2d Ed., § 49:438:

“As a general rule, statements made in proofs of loss, injury, death, etc., are not conclusive upon the claimant, provided they were made in good faith and without intent or attempt -to defraud the insurer, from which it follows that mere mistakes and bona fide errors therein may be corrected, unless the insurer has acted upon the proofs in such a manner that to permit correction would be inequitable.”

As to established principles of construction of such proof of loss provisions out of the same text, § 49:448 states:

“A requirement that proof of loss be furnished following an accident must be liberally construed in favor of the insured; hence such provision is not to be construed as constituting the insurei the sole judge of the existence or coverage of the alleged loss.”

Again, as to proper construction to be placed upon such proof of loss provision, it is stated in Note 2, 58 A.L.R.2d 432:

“It has become fairly axiomatic in insurance matters that technical questions must be construed most strongly against the insurer. This has generally been true in cases determining how far the insured should be bound or concluded by statements appearing in his proof of loss submitted to the insurer in making claim for benefits under an insurance policy. As a result, in the great majority of the cases the insured has not been held rigidly to such statements, and justification has been found to permit him considerable latitude to explain, modify, or even flatly contradict them. Otherwise, the insured would in most instances be deprived, either in whole or in part, of the benefits of the policy, for which he has given valuable consideration, and the aversion of the courts to such forfeitures is well known.”

Again, at page 446, 58 A.L.R.2d, it is said:

“Where the insured in his proof of loss has stated facts surrounding the theft of other casualty that would preclude indemnification under the policy, he has normally been permitted to show that the facts actually were otherwise and to recover accordingly. The insured’s innocence in including such facts in the proof of loss or the lack of detriment to the insurer have been factors in effecting such results.”

In the early case of National Surety Co. v. Silberberg Bros., 176 S.W. 97 (Tex.Civ.App., El Paso 1915), the court was confronted with a similar situation concerning visible marks as evidence of forcible entry under a burglary policy. The court, in construing the terms of the policy itself, pointed out that no forced construction is permissible and that the words of the insurance policy, being the language chosen by the insurance company, must be used in their ordinary sense and according to the evident intention of the parties to the contract. The court said: “The construction must have for its object indemnity for the insured, and any fair interpretation of the policy that will give indemnity must be adopted, and every ambiguity must be resolved in favor of the insured.”

Again, in an early case decided by this court, Continental Casualty Co. v. Jennings, 45 Tex.Civ.App. 14, 99 S.W. 423 (Tex.Civ.App., Dallas 1907), the proof of loss filled in by the claimant was shown to be false. Justice Rainey, speaking for this court, said:

“Conceding that the statements in the notice of injury as to what work deceased was engaged in at the time of injury was false, we do not see that defendant’s liability was affected thereby. It had notice that the injury had occurred, and that death resulted therefrom, and, if it was responsible under the true facts, the misstatement did not relieve it.”

In Remfry v. Mutual Life Ins. Co., 196 S.W. 775 (Mo.App.1917), the court passed upon a similar contention, as here made, by saying:

“It is true that proofs of death furnished the insurer by a beneficiary in accordance with the provision of the policy when making application for its payment to the insurance company as provided therein are admissible in evidence against the beneficiary in a suit upon the policy. Admissions therein contained, however, are but prima facie binding upon the beneficiary as admissions against interest, and may be overcome by proof adduced tending to explain them. In no event can an admission of this character be conclusive against plaintiff as a matter of law, * *

In Bultralik v. Metropolitan Life Ins. Co., 233 S.W. 250 (Mo.App.1921), a similar contention was raised and the court said:

“Admissions contained in the proofs of death, furnished by a beneficiary under a policy of insurance, are not to be regarded as conclusive against him, where there is evidence introduced, tending to show that they were erroneously made, or tending to explain, repel, or contradict them or tending to impair their force and effect.”

For cases of similar import see Collins v. Phoenix Assurance Co., Ltd. of London, 215 Mo.App. 683, 258 S.W. 732 (1904); Stephens v. Metropolitan Life Ins. Co., 190 Mo.App. 673, 176 S.W. 253 (1915); A. W. Sewell Co. v. Commercial Casualty Ins. Co., 80 Utah 378, 15 P.2d 327 (1932); and the Supreme Court of the United States in Supreme Lodge, K. of P. v. Beck, 181 U.S. 49, 21 S.Ct. 532, 45 L.Ed. 741, where the court said: “Statements of proof of loss are not conclusive against the insured, unless it also appears that the insurer has in reliance thereon acted to its disadvantage.”

In the more recent case of Standard Bankers Life Ins. Co. v. James, 369 S.W.2d 444 (Tex.Civ.App., Fort Worth 1963), the court had before it the contention of conclusiveness of the proof of loss which, in that case, contained statements which would completely exonerate the insurance company from liability. The court overruled such contention, saying:

“In this case we hold that the representations of fact in connection with the proof of loss were evidentiary only, and did not render improper the judgment awarded the insured. See 22A Tex. Digest, Insurance, Ch. XIV ‘Notice and Proof of Loss’, ®=>552, ‘Misstatements and omissions’; Appleman, Insurance Law And Practice, Sec. 3581, ‘Effect of Mistakes and Omissions — Generally’; Continental Casualty Co. v. Jennings, 1907, 45 Tex.Civ.App. 14, 99 S.W. 423; Union Mut. Life Ins. Co. of Portland, Me. v. Payne, 1900 (5th Cir.), 105 F. 172, 45 C.C.A. 193.”

Based upon what we consider to be the better reasoned authorities on this question we conclude that the facts and circumstances of this particular case are such that appellee was not bound, as a matter of law, to the statements and admissions contained in the sworn proof of loss. We think this is true for several valid reasons.

First, we think that appellee substantially complied with the provision of the policy with reference to giving sworn proof of loss. He answered all of the questions asked him concerning the loss by the insurance company’s duly authorized representative who was in the process of filling out the forms in his own handwriting.

Secondly, the questions propounded of ap-pellee both verbally by appellant’s representative and by the written questions in the proof of loss form were confined to those relating to the mode of entry of the burglar and none were asked concerning the method of exit. Mr. Wilder testified that he told appellee that “it has to be marks of forcible entry to the exterior of the building.” The printed question inquired of visible marks of entry. The policy itself afforded coverage not only for forcible entry but for forcible exit as well. We do not feel that it was incumbent upon appellee in this case to volunteer information for which he was not asked. Moreover, if the insurance company desired to have any information concerning visible signs of forcible exit from the premises it could have requested appellee to furnish such additional information and he would have been required to do so. The record is silent as to any request by the insurance company for additional information but, to the contrary, the representative of the insurance company promptly denied liability, even prior to the time appellee signed the proof of loss.

Also, the record is silent as to any disadvantage the insurance company might have suffered in reliance upon the statement contained in the proof of loss. It is quite evident from reading this record that the insurance company had every opportunity to, and actually, did carry out a complete investigation of the loss following receipt of the proof of loss. Nowhere is it contended that the insurance company relied upon or was misled by the representation made by appellee in the proof of loss, which would create either legal or equitable estoppel against appellee.

By its third, fourth and fifth points of error appellant contends that the answer of the jury to Special Issue No. 1 was (1) not supported by any evidence; was (2) against the great weight and preponderance of the evidence; or was (3) so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

We have heretofore set forth a fair summarization of the testimony, indeed conflicting, dealing with the visible signs of entry and exit by the burglar. There was some evidence of probative value to support the jury’s answer to the question as to whether a burglary had been committed, both on the theory of entry and exit as contained in the definition of burglary which was given in connection with the special issue. We cannot say that there was no evidence of visible means of entry. Neither can we say that the evidence is contrary to the great weight and preponderance of the evidence.

We believe that the evidence is more conclusive of the question of visible signs of exit from the premises and such would, of itself, justify the answer of the jury to Special Issue No. 1 and support liability against appellant under its policy.

Appellee testified that when he came to work the morning following the burglary he observed the damage done in the restroom by virtue of the towel rack having been torn off leaving a hole about a foot in diameter. He also observed that a lock had been torn or twisted off of the grease rack door which would allow the burglars to exit at that place. He testified that the lock was lying on the floor having been torn or twisted off. His testimony concerning forcible exit is supported by the police officer who stated that in his opinion the burglar could not have exited through the small hole in they restroom carrying the large cash register with him. From all these facts and circumstances we believe that the jury was perfectly justified in answering Special Issue No. 1 in the manner which it did. There was not only some evidence but adequate evidence, in our opinion, to justify the answer of the issue.

Much has been said and written on what constitutes visible marks of force or violence in connection with burglary policies. Couch on Insurance, 2d Ed., § 42:128, et seq. In National Surety Co. v. Silberberg Bros., 176 S.W. 97 (Tex.Civ.App., El Paso 1915), the court found that evidence of throwing a lock bolt was unquestionably evidence of force and violence within the terms of a burglary policy.

In the case of Bernard v. Employers Liability Assurance Corp., 233 Ill.App. 229 (1924), the evidence revealed that the burglar had removed the cylinder of the lock •from the front door of a store to gain entry. The court held that such removal of the cylinder of the lock from the door left such a visible mark of violence by means of some tool used by the burglar as was required by policy of burglary insurance although no marks were left upon the remaining portion of the lock or upon the door.

In the instant case we think it would require a strained and unreasonable construction of the policy to say that positive evidence of a broken or twisted lock from a door would not be evidence of visible marks or signs of exit from the premises.

We have carefully examined appellant’s “no evidence” and “insufficient evidence”' points in the light of the applicable rules and overrule same.

By its seventh and last point of error appellant contends that the trial court erred in refusing to permit it to offer into evidence the fact that appellee had a prior burglary and claim against the appellant on the same premises several months before the date of the present claim. In this connection it was shown that appellee had sustained a prior burglary on December 26, 1965, such claim involving merchandise somewhat similar to that being lost on March 17, 1966, and made the basis of the present claim. We see no reversible error reflected by the action of the court in refusing to admit into evidence the prior unrelated burglary. It was not demonstrated how the 1965 incident could have any bearing upon any issue in the instant case. Any possible probative value of such evidence is outweighed by the danger of unfairly prejudicing the claim of appellee. Southern Truck Leasing Co. v. Manieri, 325 S.W.2d 912 (Tex.Civ.App., Houston 1959); Martinez v. Williams, 312 S.W.2d 742 (Tex.Civ.App., Houston 1958). Appellant’s seventh point is overruled.

The judgement of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    J. D. HARLE, Appellant, v. George J. KRCHNAK, Appellee.
    No. 15108.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Oct. 5, 1967.
    On Rehearing Dec. 14, 1967.
    Further Rehearing Denied Jan. 4, 1968.

      A. J. Watkins, Watkins, Ryan & Hamilton, Houston, of counsel, for appellant.
    Arthur Stamm, Jr., Oldham & Lorance, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment for the plaintiff entered in a medical malpractice suit. The trial court found that the facts establishing liability were undisputed and submitted only an issue on damages. The defendant objected to the charge on various grounds, including the- failure of the court to submit issues on negligence and proximate cause.

Appellee was kicked in the chest by a horse. He was hospitalized for a week and released. About a month later he appeared at the emergency room of the Bellville Hospital in poor condition. He was seen there by Dr. Roensch, who admitted him to the hospital. After a day or two he asked Dr. Harle, appellant, to see the patient. Dr. Harle made a diagnosis of a delayed rupture of the spleen and advised an immediate operation. Most of Dr. Harle’s practice is surgery, which is usually performed at the Bellville Hospital with the same group of hospital personnel and other physicians involved in the surgery on ap-pellee. Dr. Harle is a qualified surgeon, who has performed some 3,000 cases of surgery. Had surgery not been performed, appellee would have died.

The surgery was performed between the hours of 3:45 and 6:10 p. m. on December 28, 1963. Dr. Harle was assisted by Dr. Roensch and Dr. Neely, the anesthesiologist, together with hospital personnel consisting of two registered nurses and a licensed vocational nurse. Appellant made an incision from a point underneath the left rib cage at an angle to the midline, at the front of appellee’s abdomen. Upon entering the abdonminal cavity he found it filled with old and partly coagulated blood. It was necessary to remove this blood by hand at first. He then used a suction machine, and finally sponges. At first “lap” sponges, designed to soak up blood and about the size of wash cloths, but thinner, were used. These sponges are also used to pack away abdominal contents to give the surgeon an area of exposure. He also used smaller sponges called “four by fours,” which were folded up in a ring forcep, an instrument designed to hold these little sponges.

Appellant testified that the situation was in the nature of an emergency and highly unusual. While the number of sponges used was not recorded, he estimated that a total of between eight and twelve dozen were required, while in an ordinary operation, such as the removal of a gall bladder, only about three lap sponges and a dozen or two small sponges are used.

A large amount of blood is encountered in cases of delayed rupture of the spleen. The spleen is enclosed in a tough membrane. In this case the force of the kick received by appellee ruptured the spleen causing bleeding, but did not tear the membrane. Finally the pressure of the blood inside the membrane caused it to tear and the blood dropped into the abdominal cavity. This was an unusual case because the rupture of the membrane occurred after three weeks, whereas it ordinarily occurs within seven to ten days. Appellee was given three pints of blood by transfusion.

Appellant testified that ordinarily when .a blood vessel is cut, the bleeding can be controlled by clamping it off with a hemostat. In this case the spleen adhered to the diaphram. When it was removed, capillary oozing occurred and it was necessary to pack the bed of the spleen. However, it was not necessary to leave a sponge there. During the operation the bleeding was controlled satisfactorily.

A running count of the sponges is kept during the operation, but as appellant saw that he was getting close to the time to start closing the peritoneum lining, he indicated to the scrub nurse that he was getting ready to close and wanted a sponge count. She then notified the circulating nurse that she was ready for a sponge count. The scrub nurse counts the sponges on the table and knows how many she started with. The circulating nurse counts the sponges that have been used. They compared their figures and notified appellant that the count was correct. He relied on their count, although he testified that he did make a visual examination of the site and saw no sponge. Surgeons customarily rely on the sponge count made by the nurses and it is impractical for the operating surgeon to count the sponges personally.

After receiving the sponge count, appellant closed the incision. The operation was successful and the patient was removed to his room. Because of the unusually large number of sponges used, the nurses recounted the sponges and found one missing. When appellant was informed of this fact, he concluded that leaving the sponge in the patient an additional twelve hours would do him no harm, and because of the blood loss it would be advisable to wait to check the status of his circulatory system and to permit recovery from the surgery. The next morning he determined that it would do no harm to go back and remove the sponge. He told appellee that the sponge was missing and located it by means of x-ray. After securing appellee’s permission, he was taken to the operating room and given a general anesthetic. Appellant then removed enough stitches to permit him to insert his fingers and part of his hand and pull out the sponge. It was one of the lap sponges, which are 8" to 10" by 4" to 5", consisting of several thicknesses of cheesecloth. The incision was then reclosed. This entire procedure took about 45 minutes. Appellee thereafter had a good recovery.

Appellant testified that the procedure required for the removal of the sponge did not delay the healing process at all and did not contribute to any ultimate disability. He testified that it is ordinarily safe to resume almost any kind of occupation after three months from surgery such as this, but that the patient would be uncomfortable for periods up to a year. He testified with reference to appellee: “ * * The most I could say that he was uncomfortable twelve hours longer than he would have ordinarily been.” He further testified that he required hypos three days after the first operation, which was very good time, and that the second operation did not delay him in returning to work or affect his long term picture at all. He testified that if he had waited several days before removing the sponge, the hospital stay would have been prolonged by that number of days.

Appellee testified that he did not feel pain immediately following the operations, but that he did about a day or two later, and that he became sick and vomited after the second operation. He testified that he has continued to have pain; that when he eats he gets a pain in his side. “It just seems to be a hard knot. It just swells up in my side.” He hasn’t consulted any doctors about this condition. He offered no expert medical testimony at the trial other than the cross-examination of appellant.

Appellee remained in the hospital nine or ten days, a relatively short period of time for surgery of this type. No charge was made for the second operation. Appellant testified that he would expect that appellee would have remained in the hospital about as long without the second operation, “ * * * possibly at most he stayed fourteen hours longer than he would have.”

The failure of the trial court to submit issues on negligence and proximate cause may well have been based on certain language found in Moore v. Ivey, 264 S.W. 283 (Tex.Civ.App. — Galveston, 1924), reversed on other grounds Tex.Com.App., 277 S.W. 106. This case was submitted to a jury and findings were secured that the doctor was negligent in failing to remove a sponge before closing an incision, and that this failure was a proximate cause of injury to the patient. In answer to assignments of error challenging the sufficiency of the evidence to support the answers made by the jury, the court said: “Since the jury has found upon sufficient evidence that Dr. Moore left the sponge in Mrs. Ivey, we think that a further finding that such act constituted negligence on the part of Dr. Moore necessarily follows.”

This language was considered in Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App. — Waco, 1940), aff’d Barnard v. Thompson, 138 Tex. 277, “158 S.W.2d 486 (1942), where the court of civil appeals cited the case in support of this statement: “ * * * While there are decisions to the contrary, the apparent weight of authority is that a surgeon’s failure to remove a sponge before closing the incision is negligence as a matter of law.” This statement was not necessary to the decision in this case since it had not been tried on its merits, but had been dismissed as being barred by limitation.

The passage from Ruling Case Law quoted in Moore v. Ivey, supra, in support of the decision is incomplete as is indicated in the opinion. The wording deleted from the quotation reads: “Whether the particular act was negligent is for the jury to decide after considering the circumstances of the case.” See Spears v. McKinnon, 1925, 168 Ark. 357, 270 S.W. 524. If this court decided in Moore v. Ivey that the fact a surgeon fails to remove a sponge before closing an incision establishes negligence as a matter of law, we think the decision clearly contrary to the great weight of authority in the United States. Anno. 10 A.L.R.3d 9, Malpractice, Foreign Objects; Anno. 82 A.L.R.2d 1262, Malpractice, Res Ipsa Loquitur; Anno. 65 A.L.R. 1023, Surgical Operation, Malpractice.

It appears that the evidence stated in the opinion is sufficient to support the findings of fact made by the jury in Moore v. Ivey. It was not necessary for the court to reach the conclusion that negligence appeared as a matter of law in order to support the decision in view of the jury verdict.

Appellant testified that the sponge was left in appellee’s body by mistake. The testimony shows that he relied on his visual inspection and the nurses’ count. The jury might believe that his failure to see the sponge was excusable because of the large amount of blood encountered. It might find that he was justified in relying on the nurses to properly count the sponges under the circumstances of this case. An issue on negligence should have been submitted to the jury. Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana, 1930, error ref.); Note, 38 Michigan Law Review 560; Note, Wisconsin Law Review, 1964, p. 133; Note, 1 Baylor Law Review, p. 224; Note, 24 Texas Law Review, p. 515.

It is well established in Texas that the plaintiff in a malpractice case must prove that the injury of which he is complaining was proximately caused by the negligent act of the physician or surgeon. Ordinarily this requires expert testimony. Thomas v. Beckering, 391 S.W.2d 771 (Tex.Civ.App., Tyler, 1965, ref., n. r. e.). While it seems evident that appellee’s pain and suffering was extended for a period of fourteen hours and that this was proximately caused by the necessity for the second operation, appellant’s testimony is such as to create a question of fact for the jury. Gorsalitz v. Harris, 360 S.W.2d 574 (Tex.Civ.App., Houston, 1962); Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso, 1964).

Appellant questions whether he could be held in damages for the conduct of the nurses in making an incorrect count of the sponges even though such conduct should be held negligence. It appears that most jurisdictions in this country hold the opr erating surgeon liable for the negligence of the nurses assisting him in the operation. McKinney v. Tromly, 386 S.W.2d 564, 12 A.L.R.3d 1011 (Tex.Civ.App., Tyler, 1964, ref., n. r. e.); Insurance Counsel Journal, Vol. 27, Captain of the Ship, p. 156 et seq.

Appellant urges that this Court should reverse the judgment of the trial court and here render a judgment that the appellee take nothing. This position is based on the proposition that no issues on liability were requested or submitted and as a consequence under Rule 279, Texas Rules of Civil Procedure, all grounds for recovery have been waived.

Appellee and the trial court relied on Moore v. Ivey, a case decided by this Court. We have disagreed with the interpretation widely given to the holding in this case. Under the circumstances we think justice will be better served by remanding the case for another trial as authorized by Rule 434, T.R.C.P. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944).

Reversed and remanded.

On Motion for Rehearing

In view of the motion for rehearing filed and the brief of Amicus Curiae in support thereof, the Court has carefully reconsidered its original opinion.

The general rule applicable to cases of medical malpractice is well settled in Texas. The law presumes that the physician has done his work properly. The plaintiff can recover only when it can be affirmatively shown that the diagnosis or treatment was not an error in judgment but a matter of negligence, and that such negligence was the proximate cause of the damages claimed by the plaintiff. Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso 1964, n. w. h.). Ordinarily both negligence and proximate cause must be proven by medical testimony. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949).

An exception to this rule has been recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App., Austin 1966, writ dism.); Henderson v. Mason, supra; Dobbins v. Gardner, 377 S.W.2d 665 (Tex.Civ.App., Houston 1964, writ. ref., n. r. e.); Gorsalitz v. Harris, 360 S.W.2d 574 (Tex.Civ.App., Houston 1962, n. w. h.); Edwards v. West Texas Hospital, 89 S.W.2d 801 (Tex.Civ.App., Amarillo 1935, writ dism.); Hess v. Millsap, 72 S.W.2d 923 (Tex.Civ.App., Austin 1934); Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana 1930, writ ref.).

The doctrine of res ipsa loquitur is generally held by Texas courts to be inapplicable to medical malpractice cases. Bell v. Umstattd, supra; Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App., Amarillo 1961, ref., n. r. e.); Hess v. Millsap, supra; Barker v. Heaney, 82 S.W.2d 417 (Tex.Civ.App., San Antonio 1935, error dism.). But see Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana 1930, writ ref.).

A rule of absolute liability in cases of this sort would be much more drastic than the rule of res ipsa loquitur, which merely makes the question one for the jury. Dietze v. King, 184 F.Supp. 944 (E.D.Va.1960); Jackson v. Hansard, 45 Wyo. 201, 17 P.2d 659 (1933); Aderhold v. Stewart, 172 Okl. 72, 46 P.2d 340 (1935); Martin v. Eschelman, supra.

It appears to this Court that once the fact is established that the doctor left a foreign object in the body of his patient without a medical reason for so doing, the established rules of law governing the trial of . negligence actions should be applied. If, in such a case, viewing all of the evidence in the light most favorable to the defendant, the only reasonable conclusion to be drawn is that of negligence, then a directed verdict would be proper. If, on the other hand, there is any evidence raising an issue of fact as to negligence, an issue must be submitted to the jury.

The plaintiff alleged that appellant “failed to fulfill the duty of reasonable care he owed to plaintiff in the performance of the operation,” and was negligent in failing to ascertain that foreign matter was within plaintiff’s body prior to closing the operational incision, and in allowing it to remain therein. Ordinarily what constitutes reasonable care is a question for the jury. There is evidence that appellant exercised some degree of care in that he made a visual inspection of the operational area and directed that a sponge count be made. Whether this amounted to reasonable care under the circumstances was a question for the jury.

Plaintiff also alleged that those assisting in the operation failed to “exercise a reasonable degree of care in performing their proper duties in counting the sponges;” that they were employees, servants, agents, or representatives of appellant; and that he was responsible in law both for the improper direction of said employees and because said employees’ negligence is imputed to him under the doctrine of re-spondeat superior.

It is undisputed that the nurses assisting the doctor made a mistake in counting the sponges, a mistake which they discovered on making a recount. The nurses were experienced and had assisted the doctor in many previous operations. They were employed by the hospital and were paid by it. It is undisputed that between 96 and 144 sponges were used. They were bloody and had a tendency to stick together. The sponges are made up of several thicknesses of cheesecloth. There is no evidence to show whether these sponges are manufactured of a continuous length of cloth or whether small pieces of cloth are in some manner joined together. There is no evidence that one or more of the sponges had come apart. As presented to the court the evidence simply showed that the sponges were not counted correctly. The fact that they were bloody could not have caused the mistake, nor could the fact that two or more of the sponges might have stuck together. Had that been the case, the number of used sponges counted certainly would not have equaled the number furnished for use. There is no evidence that the count was necessarily hurried. The only reasonable conclusion to be drawn from the evidence detailing how the count was made, and the circumstances under which it was made, is that the circulating nurse was guilty of negligence in failing to properly count the sponges. That this was a proximate cause of the failure to remove the sponge from the body of appellee is established by the testimony of appellant that he relied on the count.

In Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954), the Court said:

“The vital inquiry in any case involving proximate cause is whether the negligent act set in motion a natural and unbroken chain of events that led directly and proximately to a reasonably foreseeable injury or result. If so, it is immaterial that the actual injury was done by the last event in the series.” (citing authorities)

Here the doctor was told that the sponge count was correct. His visual check confirmed this information. As a result he closed the incision, leaving the sponge in the patient’s body, which necessitated the second operation. The negligent act led directly and proximately to a reasonably foreseeable result, the second operation, and the physical pain and mental anguish caused thereby.

There is some evidence that ap-pellee suffered physical pain and mental anguish prior to the trial of the case as a direct and proximate result of the second operation necessitated by the negligence established. We cannot say that the answer made by the jury to the issue on damages, $1,000.00, is so contrary to the weight of the evidence as to be clearly wrong.

Appellant is responsible for the damages found by the jury to have been directly and proximately caused by leaving the sponge within the body of appellee. McKinney v. Tromly, 386 S.W.2d 564, 12 A.L.R.3d 1011 (Tex.Civ.App., Tyler 1964, ref., n. r. e.).

The motion for rehearing is granted. The judgment of the trial court is affirmed, Associate Justice Peden not participating.


author: LANGDON, Justice.

text:
    Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellant, v. H. Roger LAWLER, d/b/a Lawler Properties, Appellee. H. Roger LAWLER, d/b/a Lawler Properties, Appellant, v. Jerry BECK, d/b/a Arlington Paint & Dry Wall, Appellee.
    Nos. 16865, 16877.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.

      McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and George F. Christie, Fort Worth, for appellant H. Roger Lawler, d/b/a Lawler Properties.
    Bill Atkins, Arlington, for appellant Jerry Beck, d/b/a Arlington Paint and Dry Wall.
   OPINION

LANGDON, Justice.

Appellee Jerry Beck, a painting contractor, plaintiff below, sued appellant-defendant H. Roger Lawler (the parties hereinafter will be referred to as they appeared in the Trial Court) for $5,107.20, the balance allegedly due for painting and wallpapering the defendant’s residence and an apartment project, for foreclosure of a statutory mechanic’s lien on the apartment project, prejudgment interest from June 10, 1964, and attorneys’ fees. Defendant contended, that plaintiff had not properly and completely fulfilled his contracts with defendant, requiring defendant to hire another painting contractor to complete said contract on the apartments and house at a cost to defendant of more than plaintiff was suing for. Defendant further contended that plaintiff was not entitled to prejudgment interest nor attorneys’ fees because of the nature of the suit. After a jury trial, the Court entered judgment on the verdict for plaintiff in the amount of $5,107.20, and foreclosure of the mechanic’s and materialmen’s lien, but denied prejudgment interest and denied attorneys’ fees. Plaintiff appealed from that portion of the judgment disallowing interest and attorneys’ fees and defendant has appealed from the judgment for plaintiff for $5,-107.20, which appeals are now docketed in this Court as Causes Nos. 16865 and 16887, respectively.

In early 1964, plaintiff and defendant entered into two separate agreements. Under the first agreement, plaintiff agreed to paint and wallpaper certain portions of defendant’s residence in Dallas, Texas, and, under the other agreement, plaintiff agreed to paint and wallpaper defendant’s apartment project in Arlington, Texas. There is no appeal from the portion of the judgment relating to the work on the residence.

Defendant contended that plaintiff had not completed his contract at the apartments substantially because there were different shades of paint on the outside of the apartments and some places were inadequately covered with paint, which required defendant to have the entire outside of the apartments repainted, at a cost to defendant of $3,052.05.

The case was submitted to the jury on a charge containing eight special issues. In answer to special issues Nos. 5 and 6, respectively, the jury found that the painting job done by the plaintiff on the apartment project was not performed in complete compliance but in substantial compliance with the terms of the contract in question.

Defendant in this appeal complains of the jury’s answers to special issues Nos. 7 (conditioned on the “No” answer to issue No. 5) and 8, wherein the jury found respectively that no money would be required to rework the painting job done by plaintiff to complete compliance with the contract, and that defendant accepted plaintiff’s apartment work. No complaint is made on this appeal as to the form or substance of the issues submitted.

Defendant complains that the jury’s answers to each issue were not supported by the evidence, were supported by insufficient evidence and were contrary to the great weight and preponderance of the evidence.-

There was evidence to the effect that the work on the apartment was approved and accepted on behalf of the defendant by one authorized to do so.

“The doctrine of substantial performance necessarily includes compensation for all defects which are not so slight and insignificant as to be safely overlooked on the principle of de minimis non curet lex.” This language is part of a quote from 6 R.C.L., p. 969, found in the case of Atkinson v. Jackson Bros., 270 S.W. 848, 38 A.L.R. 1377 (Tex.Com.App., 1925).

The jury in the case at bar determined that the defects which constituted the difference between their findings of incomplete and substantial compliance were so slight as to require no additional costs for complete compliance.

The jury under the record in this case was not required to find that the sum of $3,052.05 expended by the defendants in changing the color of paint after approval and acceptance of the contract job on the apartment project represented the amount of money to remedy défects and omissions resulting from failure of the plaintiff to perform in complete compliance with the terms of the contract. The jury rejected this proposition and resolved the question against the defendants.

On the “no evidence” point of error we have viewed the evidence in its most favorable light in support of the findings of the jury upon which the judgment of the court is based, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the findings. In the application of this test we have determined that all of the findings of the jury, upon which the court based its judgment, are supported by ample evidence.

Further, we have concluded from our study and examination of the entire record that the findings of the jury upon which the court based its judgment is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or unjust.

Jurors are the exclusive judges of the controverted issues of fact raised by the evidence, of the weight to be given the evidence, and the inferences to be drawn therefrom. They are the exclusive judges of the credibility of the witnesses. “The law does not attempt to tell jurors what amount or kind of evidence ought to produce a belief in their minds. They may believe a witness although he has been contradicted. They may believe the testimony of one witness and reject the testimony of other witnesses. They may accept part of the testimony of one witness and disregard the remainder.” McCormick & Ray, Texas Law of Evidence, Vol. 1, § 3; Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923).

“The mere fact that a verdict is against the preponderance of the evidence will not authorize a reviewing court to set it aside, if there is some evidence to support it, or evidence that would support a verdict either way. The court of civil appeals will set aside the verdict and findings of a jury only in cases where they are so against such a preponderance of the evidence as to be manifestly unjust or clearly wrong, or where they show clearly that the finding or verdict was the result of passion, prejudice, or improper motive, or in such obvious conflict with the justice of the case as to render it unconscionable.” 4 Tex.Jur.2d p. 395, § 838, and authorities cited therein.

“A jury finding on facts will not be set aside because it does not appear to be clearly right; it must appear to be clearly wrong before the appellate court will disturb it.

“The fact that the appellate court would not have found as the jury did is not the test to be applied on appeal. The true test is that made by the jury, on firsthand evidence, adduced before them from living witnesses whose credibility and the weight to be given their testimony were determinable by the jury. Where the jury’s findings are in accord with the testimony of different disinterested witnesses, the fact that there is other testimony to the contrary does not authorize the appellate court to overturn the verdict. * * * ” 4 Tex.Jur.2d 390, § 837, and authorities cited therein.

In the application of the rules of law and the authorities above referred to, we overrule all points of error raised by the defendant relating to the quantity or quality of the evidence supporting the findings of the jury upon which the Court based its judgment against the defendant, appellant herein.

We next consider the appeal of the plaintiff which is docketed as Cause No. 16865 in this Court and the defendant’s motion to dismiss such appeal.

By two points of error the plaintiff contends that the Court erred in holding that pre-judgment interest was not recoverable from June 10, 1964 and in holding that attorneys’ fee was not recoverable.

We agree with the plaintiff that whatever amount he was entitled to was due him on June 10, 1964, when his work was completed. On that date his claim under the agreement was fully matured. The conditions governing the measure of his recovery were fixed as of that date and plaintiff is entitled to interest from such date for the detention of the money due him. The fact that the amount of plaintiff’s recovery could not be ascertained until after a trial of the cause does not affect his right to interest on the sum of $5,107.20 due on June 10, 1964, subject to any off-set, or counterclaim which the defendant might have established. If this were not true then pre-judgment interest would not be recoverable in any case where a counterclaim is filed and the amount sought to be recovered was placed in doubt or reduced to an unliquidated claim. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897), and Davidson v. Clearman, 391 S.W.2d 48 (Tex.Sup., 1965), in which Watkins v. Junker, supra, was cited. We do not construe the Davidson case as being applicable solely to cases based on quantum meruit. Certainly the same reasoning should apply with equal force to a case based on contract. See also H. B. Zachry Co. v. Ceco Steel Products Corp., 404 S.W.2d 113, 135 (Eastland Civ.App., 1966, ref. n. r. e.).

“The Texas courts recognize the difference between interest contracted for or required by statute and interest allowed as damages for the detention of money; but the later cases hold that interest of the last named sort is not allowed as a matter of discretion, but is due as a matter of law if the amount of recovery, whether under a contract or for a tort, depends on conditions existing at the due date, though unascer-tained and disputed till the time of the trial. In such cases interest is to be added as matter of law by the court in entering judgment on the verdict of the jury when it is certain the jury has not already included it. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Texas & N. O. Ry. Co. v. Dingfelder & Balish, 134 Tex. 156, 133 S.W.2d 967; First State Bank v. Commercial State Bank, Tex.Civ.App., 34 S.W.2d 297; Taylor-Link Oil Co. v. Anderson, Tex.Civ.App., 92 S.W.2d 499; Harrison v. Barngrover, Tex.Civ.App., 118 S.W.2d 415; Joy v. Peacock, Tex.Civ.App., 131 S.W.2d 1012.” City of Texarkana v. Arkansas Louisiana Gas Co., 5 Cir., 118 F.2d 289, p. 294. See also 14 Tex.Dig. “Damages” @=>68, p. 127; 17 Tex.Jur.2d 106, § 26; same text p. 108, § 28, and page 266, § 200.

“The statute providing for interest on sums due and payable under written contracts where no rate of interest is agreed on must be written into and considered a part of the contract. Hence, interest begins to accrue when a party withholds payment. The statute makes no distinction as to written contracts ascertaining the sum payable. * * * ” 33 Tex.Jur.2d 85, § 14.

“Interest is defined by statute as the compensation allowed by law or fixed by the parties to a contract for the use or forbearance, or detention of money. Legal interest is that interest allowed by law when the parties to a contract have not agreed on any particular rate of interest. * * * ” 33 Tex.Jur.2d 63, § 1.

In the case at bar the sum of $5,107.20 was admittedly due the plaintiff on June 10, 1964. His claim in that amount was fully matured on such date. The above amount did not include any interest nor did the jury include any interest. While the amount claimed was not in dispute it could not be definitely ascertained until the time of trial because of the counterclaim filed by the defendant claiming an amount in excess of the plaintiff’s claim of $5,107.20.

Under the facts of this case interest should have been added by the court as a matter of law.

As to the second point raised by the plaintiff we are of the opinion that the court did not err in holding that attorneys’ fees were not recoverable.

In Latham v. Dement, 409 S.W.2d 429, 434 (Dallas Civ.App., 1966, ref. n. r. e.), in an opinion by Chief Justice Dixon it was held: “We are of the opinion that appellant was not entitled to recover attorney’s fees for another reason. Plaintiff’s cause of action in suit No. 86,999-A was for damages for breach of a written building contract between appellant and appellees for the construction of a house for appellees. An award of attorney’s fees is not proper in such a case. Parks v. Benson Co., Builders, Tex.Civ.App., 393 S.W.2d 700, 704 (ref. n. r. e.); Ford Motor Co. v. Davis Brothers, Inc., Tex.Civ.App., 369 S.W.2d 664, 668 (no writ hist.); Kirkwood & Morgan, Inc. v. Roach, Tex.Civ.App., 360 S.W.2d 173, 177 (ref. n. r. e.); Hicks et al. v. Smith, Tex.Civ.App., 330 S.W.2d 641, 647 (ref. n. r. e.); Meaders et al. v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78.”

In our opinion the above authorities, particularly Parks v. Benson Co., Builders, which involved a turnkey painting contract very similar to the one here involved, will support the action of the Court in its refusal to allow attorneys’ fees. See also cases cited in 15 Tex.Jur.2d, § 44, and § 45 on pages 51 and 53, respectively, and cases cited therein.

All of the defendant’s points of error in the appeal docketed as Cause No. 16887 in this Court complaining of the award of $5,107.20 to the plaintiff are overruled as is the defendant’s motion to dismiss the appeal of the plaintiff docketed as Cause No. 16865 in this Court.

The plaintiff’s point of error which attacks the Court’s refusal to allow pre-judgment interest is sustained and the point complaining of the Court’s action in holding that attorneys’ fees were not recoverable is overruled.

Judgment is here rendered that the plaintiff recover of and from the defendant the sum of $5,107.20 plus interest thereon at the rate of 6% per annum from June 10, 1964, until March 10, 1967 (date of judgment) in the sum of $842.69, for a total sum of $5,949.89. This last amount shall draw interest at the rate of 6% from and after March 10, 1967.

Judgment is affirmed in part, reversed in part and rendered.


author: COLLINGS, Justice.

text:
    Donald Ray ATKINSON, Appellant, v. Wesley D. RISTER, Appellee.
    No. 4201.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.

      Wagstaff, Alvis, Charlton & Alvis, Les Cochran, Abilene, for appellant.
    Scarborough, Black, Tarpley & Scarborough, J. R. Black, Jr., Abilene, for ap-pellee.
   COLLINGS, Justice.

Wesley D. Rister brought suit against Donald Ray Atkinson seeking to recover damages for personal injuries sustained by plaintiff in a collision allegedly resulting from negligence on the part of the defendant. The case was tried before a jury and, based upon the verdict, judgment was rendered in favor of the plaintiff for $28,-414.00. Donald Ray Atkinson has appealed.

The findings upon which the judgment was based were that prior to the collision appellant Atkinson parked the Chevrolet pickup operated by him on a street, being United States Highway 180, in front of the Longhorn Cafe in the City of Anson; that appellant’s pickup was negligently parked in such a manner that the. equipment thereon protruded beyond-the vehicle and over a paved portion of the highway, and that appellant negligently failed to have red lights, red flags or other warning equipment at the rear of the pickup; that such negligence on the part of appellant proximately caused the collision and resulting injuries to appellee.

The evidence shows that immediately prior to the collision in question appellee, his wife, a young son and three daughters were riding in a Ford Ranchero pickup along United States Highway 180 in the City of Anson; that they were traveling in a westerly direction along the street at about twenty miles per hour; that the pickup was being operated by appellee’s daughter Betty Lou Rister and accompanying her in the cab of the pickup were her mother and two younger sisters. Appellee was riding in the rear of the pickup near the tailgate, sitting on a spare tire. His son was up by the cab. The record supports the conclusion that as appellee and his family passed the Longhorn Motel a pipe was sticking out from the rear end of the Chevrolet pickup, which had been parked there by appellant, said pipe extending approximately 67 inches into the portion of the highway lane in which appellee’s pickup was traveling. Appellee’s daughter was driving his pickup with lights on dim, or low beam, and she did not see the pipe. However, as she was passing the Longhorn Motel Cafe she heard a loud noise. Ap-pellee’s wife testified that she heard the racket of those poles, or pipes striking the top of the Ranchero. The impact of the collision made creases in the top of appel-lee’s pickup as shown by pictures introduced in evidence. When appellee’s wife heard the sound of something striking the top of the cab she looked through the back glass in time to see appellee fall as if he was pulled out of the back end of the pickup. She stated that she did not see any sort of object on or near appellee as he fell. The evidence shows that appellee received a severe blow to his neck at the time and supports the conclusion that he was struck by the pipe protruding from the Chevrolet truck. The accident occurred at 8:00 o’clock p.m.

Sheriff Dave Reeves was notified of the accident and went to the scene of the collision arriving there at approximately 8:05 p.m. He observed the Chevrolet pickup with a couple of pipes which extended beyond the back end of the pickup for a distance of 67 inches out over the paved portion of the highway. He stated that no red flag, light or other warning device was on the end of the poles. He investigated the matter and talked with appellant Atkinson after which he went with appellant to the sheriff’s office where a Justice of the Peace was waiting. The sheriff filed a criminal complaint with the Justice of the Peace against appellant charging him with illegal parking and “failure to have red light or flag on projecting load.” The sheriff testified that appellant Atkinson in his presence entered a plea of guilty to the complaint.

Appellant urges points contending that the court erred in admitting in evidence over his objection (1) the original criminal complaint which had been filed against him, (2) in admitting into evidence the oral testimony of Sheriff Reeves that he heard appellant plead guilty before the Justice of the Peace to traffic charges which had been filed against him and, (3) in admitting into evidence the testimony of the sheriff that the criminal complaint in question was the same complaint to which appellant entered a plea of guilty. Appellant’s objection to the evidence complained of was that it was hearsay, immaterial and that it violated the best evidence rule. These points are overruled.

The issue involved was not whether there was a valid judgment of conviction against appellant. If that were the issue then appellant’s contention that the best evidence was the court record would be well taken. The question here, however, concerns an admission against interest. The testimony of the sheriff that he heard appellant plead guilty to the traffic charges filed against him was admissible as an admission or declaration against interest as an exception to the hearsay rule. Carrick v. Hedrick, 351 S.W.2d 659 (Tex.Civ.App.1961), no writ history; Smallwood v. Parr, 174 S.W.2d 610 (Tex.Civ.App.1943, error refused W.M.); Warburton v. Wilkinson, 182 S.W. 711 (Tex.Civ.App.1916.) In the last cited case it is stated that “ * * the voluntary admissions of a party, where-ever and however made, can be used in any suit to which he is a party.” In Volume 2 at page 16 of Texas Law of Evidence by McCormick and Ray it is stated that “ * * it is well settled that any statement or conduct of a party which is inconsistent with the position taken by him at the trial may be given in evidence against him * * * In 31A C.J.S. Evidence § 300, on pages 769-771 it is stated that:

“Admissions by accused in a criminal case may be competent as judicial admissions, against him, in a civil action involving the same subject matter, whether made in or out of court. Accordingly, except as a different holding may be required by statutes making evidence of convictions inadmissible in civil actions, where defendant has pleaded guilty to a criminal charge, evidence of the fact of such plea, although the plea was subsequently withdrawn, or the record of his conviction on the plea of guilty, may be introduced, in a civil action, as an admission on his part against interest, and is also admissible in rebuttal to contradict him * * *

The complaint filed against appellant in the criminal case was admissible because it was material to and explained an admission against interest by appellant. It and the testimony of the sheriff that such complaint was the same to which appellant had plead guilty were admissible to show the facts admitted by appellant when he entered the plea. The complaint and the testimony of the sheriff show that appellant admitted that he had illegally parked the pickup in the'manner shown by the record and failed to have a red light or flag on the projecting load.

We overrule appellant’s points contending that the court erred throughout its charge in assuming that appellee Rister was struck or in a collision with equipment mounted on the vehicle parked by appellant. The undisputed evidence shows that there was a collision. Circumstantial evidence shows that appellee’s pickup and appellee himself were struck by the pipe extending from the rear end of the pickup which had been improperly parked by appellant. The evidence supports the conclusion that the pipe left creases where it struck the top of appellee’s pickup. Appelle’s wife and daughter who were in the cab of the pickup heard the sound of the impact. Simultaneously appellee was struck on the back of his neck and sustained the injuries complained of. His wife saw him through the rear window as he fell off the back of their pickup. This evidence supports the conclusion that appellee was struck with equipment mounted on the pickup parked by appellant. There was no evidence to the contrary.

Special issue number 1 inquired whether appellant Atkinson parked the Chevrolet pickup at the location in front of the Longhorn Cafe in Anson where the accident occurred. Appellant urges points contending that the court erred in submitting such issue to the jury and in overruling his motion for a new trial, asserting that there was no evidence showing, or supporting the finding of the jury, that he did so park the pickup. Appellant also contends that the finding of the jury in answer to special issue number 1 is against the great weight and preponderance of the evidence. These points are not well taken. Appellant admitted by his plea of guilty to the criminal complaint that he had so parked the Chevrolet pickup. Applying the standard laid down by our Supreme Court in Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 (1959), this constituted evidence supporting the submission of special issue number 1 and the answer of the jury thereto. Considering the evidence as a whole, as required in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), the answer of the jury to special issue number 1 is not against the overwhelming weight and preponderance of the evidence. Actually, there was no evidence contrary to the finding.

Special issue number 5 of the court’s charge inquired whether appellant at the time he parked the pickup in front of the cafe, if he did, failed to have red lights, red flags or other warning equipment at the rear of said truck and equipment. The answer of the jury was that “he did fail”. Appellant urges points contending that there was no evidence to support the submission of special issue number 5 or the answer of the jury thereto, and that the court, therefore, erred in submitting said special issue to the jury and in overruling his motion for a new trial. Appellant also contends that the court erred in overruling his motion for a new trial because the answer of the jury thereto is against the great weight and preponderance of the evidence. These points are overruled. Appellant, by his plea of guilty, admitted that he failed to have red lights, flags or other warning equipment at the rear of the pickup. Other evidence indicated the absence of such lights and warning equipment. There was no evidence to the contrary.

In appellant’s point number 8 it is contended that the court erred in allowing the sheriff to testify that appellant did not tell him that there were red lights or red flags or other warning equipment on the pickup in question at the time of the accident. No reversible error is presented in this point and it is overruled.

Appellant’s points are all overruled.

The judgment is affirmed.


author: WILSON, Justice.

text:
    BURTON MILL & CABINET WORKS, INC., et al., Appellants, v. H. H. TRUEMPER, Appellee.
    No. 4673.
    Court of Civil Appeals of Texas. Waco.
    Dec. 21, 1967.
    Rehearing Denied Jan. 11, 1968.

      Charles W. Grantham, Jr., Grand Prairie, for appellants.
    Dalton, Moore, Forde & Joiner, Sam S. Stollenwerck, Dallas, for appellee.
   OPINION

WILSON, Justice.

Plaintiff brought this action as a judgment creditor against corporate stockholders, alleging they had dealt with corporate assets for their own benefit in violation of their fiduciary relationship so as to deprive him of his rights as a creditor. He recovered judgment on a jury verdict.

Defendants Marvin and Mabel Burton were husband and wife. Subsequent to the events to be narrated, they were divorced, Mrs. Burton remarried, and Mr. Burton died.

In January, 1960 the Burtons were the sole stockholders of Burton Mill & Cabinet Works, Inc., a Texas corporation. On that date they sold the stock and assets to A. W. Schroeder, transferring 180 shares of stock directly to Schroeder and the remaining 120 shares to the corporation, receiving therefor notes for $55,000 secured by deed of trust and chattel mortgage liens on realty and the other corporate assets. Marvin Burton became and continued to be a director of the corporation. Mrs. Burton resigned as director.

In April, 1960 the corporation purchased merchandise from plaintiff for which they executed a note.

In March, 1961 the Burtons foreclosed their liens, becoming purchasers at trustees’ sales of the land and improvements for $3,000 and of the personalty for $2,000. These properties they then conveyed to another corporation.

Plaintiff obtained an unsatisfied judgment against Burton Mill & Cabinet Works, Inc., in 1962 on the note given him for merchandise, filing the present suit in June, 1963.

Appellant Stahnke (Mrs. Burton) complains that there was no jury finding as to her status or relationship with the corporation which authorized judgment against her, and the undisputed evidence shows she resigned as a director at the time the corporate stock was transferred. Her argument is that the only basis for her liability would be Art. 2.41, Subd. A(2) of the Texas Business Corporation Act, V.A.T.S., imposing liability on directors who assent to purchase of the corporation’s own shares by the corporation contrary to provisions of the Act; and that such purchase could be contrary only to Art. 2.03, Subd. C of the Act, which provides a corporation “may purchase its own shares to the extent of unrestricted earned surplus available therefor * *

Plaintiff’s pleading asserted the Burtons were trustees of the corporate assets for the benefit of creditors of the corporation, and breached their trust by assuming an inconsistent position under which they could, by manipulating the stock, acquire all corporate assets so as to defeat creditors of the corporation.

Although Mrs. Burton resigned as a director at the time her stock was transferred, she acted as a director and stockholder in effecting the transfer. The fact that she relinquished her share in the nominal control of the corporation did not relieve her of liability for rendering the corporation unable to pay its debts by encumbering its assets to secure a purchase of her stock. By denuding the corporation of its assets they divested it of any source from which plaintiff and other corporate creditors could collect their claims.

In World Broadcasting System, Inc. v. Bass, 160 Tex. 261, 328 S.W.2d 863, the sole stockholders in a similar manner sold their stock and the corporate assets in return for a note secured by a chattel mortgage on the corporate assets. The Supreme Court said:

“The corporation was stripped of its property as completely and effectively as if it had been dissolved and its assets appropriated by respondents.”

It was held that the stockholders “thereby became personally liable” for the outstanding debts to the extent of the corporate assets “so appropriated by them.” (p. 866) A like holding was made as to stockholders in A. R. Clark Investment Company v. Green (Tex.Sup.1964), 375 S.W.2d 425, 437.

Mrs. Burton’s liability is not restricted to the statutory basis, nor to her status as a director. Thus the amount of her liability is not limited to the amount paid for the stock in excess of earned surplus, as she contends. Since the facts are undisputed, no special jury finding as to her status or relationship was necessary.

Appellants say plaintiff failed to establish their lack of good faith. If this had been an element of recovery, the burden would have been on defendants to show fairness in their dealings with the corporation. Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715; International Bankers Life Insurance Company v. Holloway (Tex.Sup.1963), 368 S.W.2d 567.

It is urged plaintiff’s cause of action is barred by the two-year statute of limitation, Art. 5526, V.A.T.S., as an action for damages. Plaintiff says his suit is to establish a trust on realty, and to apply the property or its value to satisfaction of his judgment; and that it is governed by the four-year statute, Art. 5529 as being an action “for which no limitation is otherwise prescribed.”

Plaintiff’s allegations are epitomized above, in part. It was pleaded that defendants entered into an agreement to manipulate the stock and make disposition of the corporate assets so as to hinder, delay and defraud creditors; that the transactions summarized were consummated when the corporation had no board of directors capable of exercising independent judgment, and the liens were created by defendants in violation of their fiduciary position as trustees of the assets; that after purchase by the Burtons at trustee’s sale, the assets were sold by them to another corporation organized by them, Burton Maid Kitchens, Inc., to the end creditors should be defrauded and their claims defeated, all in violation of their fiduciary relationship. The prayer was for recovery in the amount of plaintiff’s judgment; for an accounting, “that defendants be charged as trustees”; that the transfers be held for naught as to defendants ; that a receiver be appointed; that the assets be subjected to plaintiff’s claim, and for general legal and equitable relief.

The suit was filed June 14, 1963. The jury answered “no” to a special issue inquiring whether plaintiff discovered, or through reasonable diligence should have discovered on or before June 14, 1961 the sale of stock by the Burtons. There is no showing to the contrary.

Where a fiduciary relationship, one of trust and confidence, exists, as in this case, limitation does not begin to run in favor of trustees until plaintiff has notice, or by reasonable diligence should discover repudiation of the trust. Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197, 205. Appellants do not assail the jury finding which brings appellee’s action within the rule in that case. Appellants have failed to establish the action is barred.

Error is assigned to the court’s action in changing the date in a special issue inquiring whether Burton was a director at the time he purchased at the trustee’s sale. The change was made after the jury retired. The date of the trustee’s sale is undisputed, as submitted in the corrected issue. The issue inquired only as to Burton’s status at the time of the sale. There was no objection to the correction or to the issue as corrected. No error is reflected.

All points, including those relating to sufficiency of evidence, have been considered and are overruled.

Affirmed.