text:
    LOYD ELECTRIC COMPANY, Inc., Appellant, v. Maria Leonor C. DeHOYOS et al., Appellees.
    No. 14536.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1966.
    Rehearing Denied Dec. 30, 1966.

      Groce, Hebdon, Fahey & Smith, San Antonio, for appellant.
    Putman & Putman, Richard G. Strong, San Antonio, for appellees.
   BARROW, Justice.

This is a suit to recover exemplary damages for the death of an employee, as authorized by Art. 16, § 26 of the Texas Constitution, Vernon’s Ann.St., and Art. 8306, § 5, Vernon’s Ann.Civ.St. On August 24, 1962, Gabriel C. DeHoyos received fatal burns in a fire which occurred on the premises of his employer,- Loyd Electric Company, Inc. Appellees, who are his widow and two surviving minor children, were paid death benefits under the Texas Workmen’s Compensation Act. The jury found in a subsequent suit brought by ap-pellee, that appellant company was guilty of several acts of gross negligence which were a proximate cause of DeHoyos’ death. Judgment was entered on this verdict whereby appellees recovered exemplary damages against appellant.

Appellant urges there is no evidence, or insufficient evidence, to support the jury’s findings of gross negligence so as to justify the award of exemplary damages, and in any event the decedent assumed the risk. Appellant also complains of the exclusion of certain evidence pertaining to decedent’s assumption of risk and of the court’s refusal to submit issues of ordinary negligence.

The law applicable to a suit for exemplary damages has recently been considered by the Supreme Court in Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (1964), wherein the following test was approved: “Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” (Emphases added by Supreme Court.) The Court held that in the absence of wilfulness, wantonness or malice, there must be an entire want of care so as to raise the belief that the acts complained of were the result of a conscious indifference to the rights or welfare of others. See also Armstrong v. Texas Power & Light Co., Tex.Civ.App., 399 S.W.2d 922, wr. ref’d n. r. e.; Whitehead v. Salyer, 346 F.2d 207, 209, Ct. of App. Tenth Cir. (1965).

At the time of the fatal fire, appellant had been working for about eight months on a government contract to overhaul and test aircraft fuel pumps. This work was performed on the second floor of appellant’s two-story brick building in the City of San Antonio. The contract required that the pumps be tested in Type I or Type II fuel after their overhaul. The specifications for each type fuel were provided by the contract, and this fuel was purchased by appellant from the Howell Refining Co. The pumps were tested on a test stand which was located in a 10 x 13 foot corner of the second floor and enclosed on three sides by two walls of the building and a concrete wall built by appellant to separate the test stand area from the overhaul area. A panel board containing the controls for the test stand was located at the open end of the test stand area and behind the panel board were stored approximately nine 55-gallon drums of test fuel. Decedent had operated the test stand for about six months prior to the fatal fire.

The test stand was designed by John Loyd, president of appellant, and built by him with the help of a welder by use of controls from a surplus bendix test stand which he secured from Kelly Air Force Base. It consisted of a tank about seven or eight feet long and about 24 inches deep. This tank was mounted about three feet above the floor in such a manner that it could be rotated 180°. The tank was kept about half full of the test fuel, which amounted to about 80 gallons. There were eight openings at the top of the tank and a pump could be inserted in each opening and bolted to the tank for testing. Since the pumps had to be activated electrically, a 28 volt generator was located behind the wall of the test stand area and electricity carried through an aluminum conduit to the control panel and then to leads secured to the ceiling over the test stand. A negative and a positive lead had to be connected to each pump to activate it for the test. Each lead was secured to the pump by means of an alligator clamp.

When all the pumps to be tested were connected and any unused openings were plugged, the electricity was turned on briefly by the test stand operator to make certain that each pump was operating. The tank was then rotated so that the pumps were on the bottom and submerged in the fuel. The electricity was again turned on to start each pump. If a pump leaked, the operator turned off the electricity to that pump. There was also a switch whereby he could turn off all electricity to the control panel. Three pans, about 4 to 6 inches deep and about 18 x 30 inches wide, were placed beneath the tank to catch any fuel which leaked. Such fuel was emptied by the operator into one of the drums for reuse.

The exact cause of the fatal fire is not known, although it probably started in one of the drip pans. An eye-witness testified that when he first noticed the fire it was in one of the drip pans and decedent was bending over same. Decedent turned around to reach a fire extinguisher on the wall behind him and the flames suddenly enveloped decedent’s back and he caught fire. Another employee put out these flames, although he had to use two fire extinguishers because of the failure of the first one. Shortly thereafter two or three of the drums caught fire and exploded. Although there was no direct evidence of how he escaped, decedent apparently jumped from the roof of a shed adjoining the test stand area. Decedent was the only employee injured, although the test stand area was substantially damaged by the fire.

It is obvious from this record that the testing of the pumps was a dangerous procedure. The presence of highly volatile fuels and electricity provide two of the three components necessary for a fire. On two previous occasions a drip pan had caught fire. On each occasion only a small fire occurred in the pan and it was extinguished by use of one of the two fire extinguishers in the test stand area, without property damage or injury to anyone. There is no doubt that appellant violated the City Fire Ordinance in storing the drums of fuel on its premises, however, ap-pellees do not contend that this storage was the cause of the fire or decedent’s death.

The thrust of appellees’ case relates to the use of the open drip pans and the alligator clamps to secure the electrical leads to the pumps. A chemical engineer testified as an expert witness that the entire operation was very unsafe because of these two facts. The fuels had a flash point of 100° F. and since the temperature was in excess of that on the day of the fatal fire, an electrical spark could ignite the fumes near the fuel in the open pans. This witness testified that a drain system for taking away the fuel as it leaked would have removed much of the hazard, in that although the fumes could still be ignited, there would be little fuel to feed the fire and it would quickly burn out. He further testified that the alligator clamps could become loose with the turning of the tank and could easily cause a spark by becoming grounded or contacting one of the other leads. Two former employees of appellant testified that on prior occasions they had seen electrical sparks. Other types of electrical connections were identified which would be much safer than the clamps. Further, there was evidence that a fire-fighting system could have been installed to flood the test stand area with foam and put out any fire shortly after it started.

This testimony, as well as other of similar import, would fully justify a conclusion that appellant did not use the care that was required to avoid a fire and injury to decedent. On the other hand, the record is un-contradicted that appellant did exercise “some care” to avoid such an incident. Ap-pellees urge that this care, at most, amounted to only a scintilla and is so slight as to demonstrate an entire want of care so as to support a finding of gross negligence within the holding of Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409 (1934).

A similar argument was considered and rejected by the Supreme Court in Sheffield Division, Armco Steel Corp. v. Jones, supra. It was there pointed out that the Supreme Court in Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943), had reversed the Court of Civil Appeals which held that under the Morton Salt Co. decision a fact question was raised as to gross negligence, not only when the defendant’s negligence “is evidenced by an entire want of care, but even when the exercise of so slight a degree of care as to justify the conclusion that the party was indifferent to the welfare of others.” The Supreme Court in Sheffield Division said that although it did not construe the opinion in Morton Salt Co. as holding that the company was guilty of gross negligence although an entire want of care was not shown, if such were the holding, it was effectively overruled by Bennett v. Howard, supra.

Although the record demonstrates several procedures and other types of equipment that appellant could have used to make the operation safer and place less safety responsibility on the operator, it is our opinion that the evidence fails to meet the requirement that there be an entire want of care. The following demonstrate some of the care exercised by appellant: the test stand area was equipped with two exhaust fans in an effort to remove the fumes from the fuel; the operator was instructed to empty the drip pans to keep fuel from accumulating in same; the alligator clamps were equipped with rubber sleeves and the operator was instructed to make certain that the clamps were secure and the sleeves in place before the electricity was turned on; the electrical system was equipped with a circuit breaker on the panel behind the operator whereby the electricity could be shut off to any pump or to the entire circuit; and two CO2 fire extinguishers were provided in the test stand area which had theretofore prevented fire damage. It is further seen that although the mode of operation had been observed by an inspector from the Department of Defense, an inspector from the Department of Labor, and Fire Department Inspectors from the City of San Antonio, the only suggestion given for fire safety was that fire lanes be marked on the floor, which was done.

There is no contention that the fire was caused by wilfulness, wantonness or malice on the part of appellant, and since the evidence fails to meet the requirement that there be an entire want of care by appellant, there is no basis for the recovery of punitive damages from it.

The judgment of the trial court is therefore reversed and here rendered that ap-pellees take nothing by this suit.

      . I. The jury found defendant guilty of gross negligence as follows:
      Defendant, acting through its officers or managerial employees 1. Kept combustible liquids upon the upper floor of its building in such a manner that such substances were in danger of taking and communicating fire.
      4. Kept inflammable fluids in places upon the upper floor of its building where ignition and burning obstructed and rendered hazardous egress from the building.
      7. Stored or handled Class II inflammable liquids in quantities exceeding ten gallons and Class III inflammable liquids in quantities exceeding 25 gallons in the second floor of its building without having obtained a permit from the Bureau of Fire Prevention of the City of San Antonio.
      13. Maintained the fuel pump test tank in such a manner that the test fluid accumulated in the vicinity of electric connectors known by the defendant to emit sparks.
      19. Failed to equip the test tank with safety devices to prevent sparks from igniting the test fluid fumes after the previous occurrence of fire.
      22. Failed to provide fire extinguishing equipment adequate to immediately extinguish fire in the test stand and attached equipment.
      Bach of these acts was found by companion issues to be gross negligence and a proximate cause of the death of decedent.
      II. In addition, the jury found that defendant was guilty of gross negligence in:
      10. Failing to equip the second floor of its building with a fire escape as required by the City Fire Ordinance.

        16. Maintaining the test tank with alligator clips known by it to be improperly insulated.
      The jury found that neither of these acts was a proximate cause.
      III. Although the jury found that decedent knew there was danger of sparks igniting the fuel collected in one or more of the drip pans, they found he did not fully appreciate the extent of the danger of the fluid catching fire.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    Alicia Rojas EMERSON, Appellant, v. Harold Hugh EMERSON, Appellee.
    No. 252.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 15, 1966.

      Hester & Toscano, Darrell B. Hester, Harlingen, for appellant.
    Ransome & Ray, C. Fount Ray, Brownsville, for appellee.
   OPINION

NYE, Justice.

A decree of divorce was granted to ap-pellee Harold Hugh Emerson. The wife Alicia Rojas Emerson appealed contending that the husband failed to establish upon full and satisfactory evidence that the wife had been guilty of excesses, cruel treatment or outrages of such a nature as to render their living together insupportable and that there was no satisfactory evidence that any conduct of the wife was studied, willful and deliberate, intending to cause mental pain.

The parties were married on August 10, 1959 and lived together until their separation in May of 1965. There was one child: born of the marriage on July 10, 1960. There was no dispute as to the child custody as both parties agreed that the best interests of the child would be served by awarding him to his mother with certain visitation privileges granted to the father. The court divided the community property and there has been no complaint here that such division was not properly made by the trial court.

The trial was to the court without a jury and is here on appeal supported by findings of fact, conclusions of law and a full statement of facts.

It is fundamental that a divorce should not be granted by the trial court or permitted to stand by an appellate court unless the evidence is full and satisfactory. It is therefore our duty to examine the entire record to determine whether the evidence meets this test. In doing so we must not lose sight of the fact that the trial ■court alone had the advantage of having the parties personally present before him and the opportunity to observe their demeanor and pass upon their credibility. Shaw v. Shaw, 402 S.W.2d 821 (Tex.Civ.App., San Antonio 1966) and authorities therein cited.

The appellant wife does not question the trial court’s latitude in evaluating the controverted facts in the trial nor is it the appellant’s position that the trial judge should not have believed the husband’s testimony and should have believed the wife’s testimony, rather it is the position of the appellant that the husband’s testimony falls far short of full and satisfactory evidence of cruel treatment of such nature as to render their living together insupportable where no physical violence was inflicted.

The trial court had before him these same parties in a previously filed divorce action, each against the other. The wife at that time took a nonsuit of her action for divorce and elicited the aid of the court to save her marriage. During that suit there had been several preliminary hearings on the questions of restraining orders, child support, custody and alimony pendente lite. At the conclusion of that trial the court denied to the husband the divorce he sought. One of the first findings of fact filed by the trial court in this divorce action was that with this background of divorce experience, the court was shocked to learn that almost immediately following the denial of that divorce, the husband made a good faith effort to confer with the wife about a reconciliation. The wife spurned this overture with the simple statement that her son by a previous marriage was about to leave her home and that she would call the husband back. Even though the other son left shortly after this phone conversation the wife did not return his call either that Sunday afternoon or evening. The husband called two or three times a week, made a number of efforts over two months period to affect a reconciliation to no avail. Following the first effort for a reconciliation, the wife called the husband at his office and promptly renewed an aggravated long-standing dispute accusing the husband with having affairs with female employees at his office.

The court further found that the wife made the husband unwelcome in his home; that it was difficult for the husband to have a normal visit with his son until after he brought this present suit. Continuing, the court found that on or about December 3, 1965, the husband, at the wife’s invitation, conferred with the wife in her automobile in a drive-in parking lot. On this occasion the husband was subjected by the wife to several hours of accusations and was forced to begin to walk home in a cold rain. The humiliation of this night’s ordeal on the husband was very real and obvious as he described it on the witness stand. The court found that after the husband arrived at his home the wife harassed him with telephone calls for the balance of the night; that the husband’s health was affected by the wife’s action and that the husband did not provoke this ill treatment. After a careful review of the entire record, we find the evidence to be full and satisfactory and sufficient to support the findings of the trial court.

The wife’s conduct was willful and deliberate, intending to cause mental pain. During the months of October and November, 1965, the husband made repeated efforts to contact his wife about a reconciliation. She spurned these efforts. The husband even wrote to his wife asking for a reconciliation. He received no reply. His attempted visits during these months with his son, were denied by the family maid on instructions from his wife. He testified that he had to consult his physician relative to his physical health for relief. The husband testified that he had tried his best to be a good husband. The wife had on various occasions called him a drunkard, a dope addict and narcotics addict; that these statements were made in front of his son, in front of her son (by a previous marriage), and in front of neighbors. He had tried to do the best he could. However, he couldn’t do anything to please her. He testified that when he was finally able to visit with his son, his wife used the same abusive language set out above, in the presence of the little boy. Asked as to whether it had any effect or impact on the little boy, the husband testified that the little boy said, “Mama, don’t fuss at Daddy” and he (the little boy) put his hand over her mouth. The husband got ready to leave and the little boy ran after him.

In order that a divorce be granted on the ground of mental cruelty under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 4629, (1), the acts that constitute excesses, cruel treatment or outrages provided in this statute as a ground for divorce are sufficient if they are of such a nature as to render their living together insupportable. These acts must be established by full, clear and satisfactory evidence. Tex.Rev.Civ.Stat. Ann. art. 4632. The conduct complained of is not necessarily confined to physical violence but may consist of studied and deliberate insults and provocation. Popper v. Popper, 388 S.W.2d 468 (Tex.Civ.App. San Antonio 1965). However, the sufficiency and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of facts subject to the power and duty of reviewing court to pass on such evidence. Alexander v. Alexander, 373 S.W.2d 800, at 803 (Tex.Civ.App. Corpus Christi 1963) see numerous cases cited therein.

Some of the above facts were disputed by the wife. Where the evidence is conflicting, we have no authority to pass upon the credibility of witnesses, but it is our duty to determine as to the quality of evidence to make certain that it is full and satisfactory. Robinson v. Robinson, 235 S.W.2d 228 (Tex.Civ.App. San Antonio 1950); Gentry v. Gentry, 394 S.W.2d 544 (Tex.Civ.App. Corpus Christi 1965). Whether or not cruel treatment exists, depends largely upon the particular facts of each case and it is difficult to lay down a general rule that applies to all cases. Guerra v. Guerra, 327 S.W.2d 625 (Tex.Civ.App. San Antonio 1959). Even if it might be said that any one of the several different acts taken alone do not constitute sufficient grounds for divorce, the accumulation of all of them amidst the surrounding circumstances may be sufficient to constitute grounds on which the trial court may properly grant a divorce. Wauer v. Wauer, 299 S.W.2d 719 (Tex.Civ.App. Amarillo 1957); Martinez v. Martinez, 384 S.W.2d 924 (Tex.Civ.App. Corpus Christi 1964); 20 Tex.Jur.2d 354; Hunter v. Hunter, 321 S.W.2d 92 (Tex.Civ.App. El Paso 1959).

The husband testified that he had always been a gentleman and had not been guilty of any infidelity. The wife accused him of having affairs with his female employees. It has been held by this court that false charges of unchastity and infidelity taken with the accumulation of other acts may constitute such cruelty as will entitle a party to a divorce. Alexander v. Alexander, supra.

It is settled law of this state that cruel treatment as a ground for divorce is not confined to physical violence alone but may consist of a series of studied and deliberate insults and provocations. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459 (Tex.Com’n. App. 1931, opinion adopted). We find such insults and provocations present in the evidence in this record.

We are convinced from a careful examination of the entire record that the evidence is sufficient to meet the standard of full, clear and satisfactory, and that the trial court did not err in granting the divorce. Bustos v. Bustos, 282 S.W.2d 434 (Tex.Civ.App. El Paso 1955); Shaw v. Shaw, supra. Appellant’s points are overruled.

Four instruments were included in the transcript at the request of the appellee. Appellant has filed a motion to strike these instruments from the transcript. The instruments were not considered by this court. In view of the disposition taken by this court of this appeal on the merits, it is not necessary for us to rule on appellant’s motion.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    TEXACO, INC., Appellant, v. O. P. LEONARD, Appellee.
    No. 238.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Rehearing Denied Jan. 5, 1967.
    William S. Clarke, Houston, Mr. B. R. Reeves, Palestine, for appellant.
    Robert Stahala, Garrett & Stahala, Fort Worth, R. E. Swift, Palestine, for appellee.
   DUNAGAN, Chief Justice.

This suit was originally instituted in the Third Judicial District Court of Anderson County by R. W. Leonard, Obie P. Leonard, Jr., O. P. Leonard and O. P. Leonard, Trustee, against Texaco, Inc., appellant.

The damages for which plaintiffs sought recovery were allegedly sustained as a result of appellant’s seismic operations upon approximately 12,117 acres of land in Anderson County, known as the P. D. C. Ball Estate lands, upon which Texaco held an oil, gas and mineral lease from said estate, the owner of the reserved mineral estate, and in which O. P. Leonard owned the surface estate only subject to the reserved mineral estate and the express right of ingress and egress at all times to explore, develop and handle the minerals that may be found in, under and upon said lands, to construct, maintain and operate machinery, reservoirs, buildings and structures and other necessary equipment for the purpose of development and proper handling of said minerals.

Plaintiffs, in their original petition, alleged that the appellant entered upon the land in question on or about the 26th day of May, 1959, in the conduct of its seismic operation. By their second amended original petition, it was alleged that the entry was made on or about June 1, 1959. Ap-pellee, O. P. Leonard, contends that such operations were not completed until the latter part of September, 1959. It is not contended that the entry was unlawful.

Plaintiffs’ original petition was filed on July 6, 1961, and plaintiffs’ first amended original petition filed on February 10, 1964, stated only a cause of action in tort alleging that Texaco, Inc. had negligently conducted its seismic operations and had used more of the surface than was reasonably necessary for such operation.

Plaintiffs’ second amended original petition filed October 22, 1964, contained an allegation ex contractu alleging specifically that Texaco had, prior to entry upon the land, advised plaintiffs that it would use the roads, bridges and cattle guards situated on the land, and in consideration of such use would pay plaintiffs for any and all damages thereto.

By plaintiffs’ first trial amendment filed March 8, 1965, after the announcements of ready but before the trial commenced on that day, plaintiffs alleged that:

“Prior to any of the entries upon the land as hereinabove alleged, the Defendant agreed that in consideration of Plaintiffs’ agreeing that they would make no objections as to the Defendant’s use of Plaintiffs’ land, that Defendant would pay to Plaintiffs such damages as the operations in connection with the seismograph operations would cause Plaintiffs.”

Plaintiffs introduced no evidence of negligent operations or of use of more of the surface than was reasonably necessary. Plaintiffs’ witnesses admitted that Texaco had in September, 1959, repaired all roads, and there was no evidence as to any damage to any bridge, gate or cattle guard. Thus plaintiffs relied solely upon the agreement alleged in their first trial amendment as the basis of defendant’s liability for the damages alleged, and it was upon this alleged agreement the case was submitted to the jury.

Defendant (appellant herein) went to trial upon its second amended original answer (filed February 13, 1964 and refiled on March 8, 1965, after the filing of plaintiffs’ first trial amendment), which contained special exceptions, a general denial, a special denial, and a plea of the two-year and the four-year statutes of limitation in bar of plaintiffs’ suit and cause of action.

The case was submitted to the jury on special issues and the jury found: (1) that prior to the time the seismic operations began, Texaco, Inc. agreed with O. P. Leonard to pay him such damages as would be caused him by this seismic operation; (2) that the seismic operations caused plaintiffs’ cattle to die; (3) that five cows died; (4) that the five cows were worth $1,125.00; (5) that the seismic operations caused a change of condition in plaintiffs’ roads; (6) that the changed conditions of the road required plaintiffs to hire additional help; (7) that the amount of additional employment was $505.00; (8) that the rental value of the land was reduced by 50% during the months of June, July, August and September, 1959, i. e., was reduced by $2,333.00; and (9) that the cost of repairing damages to fences was $35.00. The total damages found by the jury were $3,998.00.

Defendant filed its motion to disregard certain answers of the jury and for judgment non obstante veredicto, which was overruled by the court, and judgment was entered only for the plaintiff, O. P. Leonard, for $3,998.00, the other plaintiffs having no interest in the land, cattle, or ranch operations at any time material to the suit. No motion for new trial was filed in view of the motion to disregard certain answers of the jury and for judgment non obstante veredicto, and defendant has perfected this appeal.

As the only parties to this appeal are Texaco, Inc., appellant, and O. P. Leonard, appellee, they will hereafter be designated as appellant and appellee.

Appellant contends that appellee’s original suit and cause of action was barred by the two-year statute of limitation or in the alternative that the cause of action alleged for the first time on March 8, 1965, (by the first trial amendment) was not protected by Article 5539b, Vernon’s Ann.Civ. St. and was barred by the two-year statute when pleaded.

Article 5539b, V.A.C.S. passed in 1931, reads as follows:

“Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counter-claim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. ⅜ * % f>

The appellee contends that the cause of action alleged in his first amended petition was not wholly based upon and did not wholly grow out of a new, distinct or different transaction and occurrence from that alleged in the original petition; the parties were identical, the land was identical and the time of the transactions was identical. He further contends that there was but one entry upon the land and one seismic operation conducted by appellant and there was no wholly new, distinct or different transaction and occurrence. He also contends that the filing of plaintiffs’ original petition tolled the statute of limitations as to all causes of action arising out of the appellant’s seismic operation, and thus his first trial amendment was not barred by limitation by virtue of Article 5539b.

In view of the agreement by the appellant with appellee’s attorney on May 19, 1961, to waive the statute of limitation from May 16, 1961, until the parties could meet and discuss the matter, which meeting occurred on June 19, 1961, we hold that ap-pellee’s original petition was timely filed and was not barred by limitation.

Therefore, the controlling question here is: Does the first trial amendment seeking for the first time to recover upon an alleged contract between the parties that the appellant would pay to the appellee any and all damages caused him resulting from the seismograph operations, present a new cause of action based upon and growing “out of a new, distinct or different transaction and occurrence” from that stated in the original petition. It is obvious that under appellee’s original petition, he sought a recovery only for damages resulting from appellant’s negligent conduct in its seismic operations and the use of more of the surface than was reasonably necessary for such operation.

In Hopper v. Hargrove, 154 S.W.2d 978, (Tex.Civ.App., Texarkana) 1941, writ ref., wherein Justice Hall, speaking for that court, said:

“ * * * ‘It is not sufficient’, as stated in Phoenix Lbr. Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, 709, by the Supreme Court, ‘that the causes of action be similar in their nature, but they must be essentially identical. Four tests are laid down by which to determine the identity of causes of action: (1) Would a recovery had upon the original bar a recovery under the amended petition ? (2)Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in each case? (4) Are the allegations of each subject to the same defenses ? ’ * * * ”

These four tests of determining whether an amended pleading states a new cause of action have not been overruled insofar as we have been able to ascertain.

The Hopper case was followed in Lubbering v. Ellison, 342 S.W.2d 796, (Tex.Civ.App., San Antonio) 1961, n. w. h.

When the above rules are applied to the facts of this case, even as ameliorated by Article 5539b, it becomes clear that the cause of action stated in appellee’s first trial amendment is a new cause of action from that stated in appellee’s original petition because:

(1) A recovery upon appellee’s original petition or cause of action would not bar a recovery under his first trial amendment.

(2) The same evidence which would support the allegations of negligence and use of more of the surface than reasonably necessary would not support the allegations of the contract alleged in his first trial amendment.

(3) The measure of damages sought in the original petition and the first trial amendment are not the same.

(4) The allegation of the oral contract contained in the first trial amendment is not subject to the same defenses as the allegations of negligence and use of more of the surface than reasonably necessary contained in the original petition.

The causes of action alleged in the original and first amended petition were in tort, a cause of action ex contractu was first alleged in the second amended petition but not only was the cause of action changed from tort to contract by the filing of the second amended original petition, but a new and different contract was alleged in the first trial amendment from the one that was alleged in the second amended petition.

It is our holding that appellee’s first trial amendment is “wholly based upon and grows out of a new, distinct and different transaction and occurrence,” and the running of limitation as to said trial amendment was not tolled by the filing of the original petition.

In view of our disposition of this case, it is unnecessary for us to dispose of other points of error presented by the appellant.

Judgment reversed and rendered for appellant.


author: COLEMAN, Justice.

text:
    Joe W. KNIGHT, Appellant, v. Steve G. CALOUDAS, Individually and d/b/a Steve’s Bar-B-Q, Appellee.
    No. 14906.
    Court of Civil Appeals of Texas. Houston.
    Dec. 1, 1966.
    Rehearing Denied Jan. 5, 1967.

      William D. Bonham, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Pearson Grimes, Houston, for appellee.
   COLEMAN, Justice.

This is a “slip and fall” case wherein the trial court granted the defendant’s motion for summary judgment.

The plaintiff alleged that he entered the restaurant owned and operated by the defendant to purchase something to eat; that while in the establishment he walked across the floor and in trying to avoid a large brief case sitting in the aisle, he slipped and fell on the floor. He alleged that the floor was exceedingly slippery from having been carelessly and negligently cleaned up by employees of the defendant. He alleged that the defendant, and his agents, servants and employees, “were guilty of negligence at the time and place of the accident here complained of and referred to in the following enumerated particulars, such acts of negligence, each of which was a proximate cause of the accident aforesaid and of the injuries sustained by Plaintiff.” The acts of negligence were not further particularized.

In answer to interrogatories served on him, the plaintiff stated that his fall resulted from the fact that the floor of the premises was slippery and that he did not contend that there was a foreign substance on the floor. He stated that he did not contend that there was any reason for his fall other than the fact that the floor was slippery. He stated that there was no obstruction which prevented his seeing the brief case in the aisle and that he saw it prior to the time he fell.

In his motion for summary judgment defendant contended that these answers conclusively show that no act of the defendant or his agents, servants or employees was responsible for the alleged fall.

The defendant filed affidavits supporting the motion for summary judgment. An affidavit by another customer stated that after he saw a man fall to his knees in Steve’s Bar-B-Q located on Lamar Street between the hours of 2:00 and 3:00 o’clock May 17, 1963, the date of plaintiff’s fall, he looked at the floor around the place where the fall occurred and saw neither water nor anything else on the floor.

One of defendant’s employees stated in an affidavit that she witnessed the fall and that the floor was not wet. She further stated that she knew that the floor had not been waxed either on the night before, or during the day of, the accident. She stated that the floor was mopped the night before the accident about closing time and again cleaned with a dry mop at 11:00 o’clock prior to the accident which happened about 2:30 or 3:00 o’clock in the afternoon.

The manager of the restaurant stated in an affidavit that he saw plaintiff when he was getting up from the floor and immediately checked the area. He said that the floor was clean and dry.

The plaintiff filed an affidavit in support of his answer to the motion for summary judgment. In it he stated that after having finished drinking a cup of coffee, he got up from one of the booths and began to leave the premises. He then slipped and fell “as the result of an extraordinarily slippery condition of the floor in the immediate area of my booth.” He stated that he was not pushed and did not trip over any object.

He then stated: “The general appearance of the floor at that time and in that immediate area was such that one could not have been aware that it was so slippery as it was; and I personally was not aware that it was so slippery. Moreover, I had no warning whatsoever of this condition of the floor at the time.”

In his unsworn answer to the motion for summary judgment plaintiff stated that he did not trip over the brief case and that his view of it was not obstructed. He stated that it was his contention that “the character and/or condition of Defendants’ floor on the occasion in question was slippery, i. e., in such condition so as to deny him the frictional support which it should have * * * had Defendants, by and through its personal representatives, not been negligent in their care of it.” Plaintiff further stated in this unsworn pleading that his “response to Defendants’ interrogatories that a ‘foreign substance’ did not cause him to slip and fall meant that there was no spoon, plate, banana peel, brief case, or other such patently obvious source of his sudden loss of balance and consequent injury. In other words, the floor was much more slippery than its appearance to a reasonable and prudent person under the circumstances would indicate.”

The trial court, in ruling on a motion for summary judgment, must determine whether or not there are any issues of material fact to be tried. He does not weigh the evidence or determine its credibility in order to resolve disputed issues made by the pleadings. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

When a motion for summary judgment is supported by affidavits, admissions and answers to interrogatories sufficient to establish facts, which, if proven at a trial on the merits, would entitle the movant to an instructed verdict, the opponent must produce opposing evidentiary data which will raise an issue as to a material fact. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).

A party pleading negligence specifically is limited to the grounds specifically pleaded, even though he also pleads negligence generally. Rhodes v. Liberty Welding Works, 391 S.W.2d 796 (Tex.Civ.App., Beaumont 1965, ref., n. r. e.); Yanowski v. Fort Worth Transit Co., 204 S.W.2d 1001 (Tex.Civ.App., Ft. Worth 1947, ref., n. r. e.).

While paragraph V of the plaintiff’s petition in this case appears to be incomplete, construing it liberally in connection with the facts alleged in paragraph IV, it constitutes a general plea that defendants were guilty of negligence constituting a proximate cause of the accident and injuries sustained by plaintiff. However, plaintiff has also pled one specific ground of negligence, i. e., “The floor was exceedingly slippery from having been carelessly and negligently cleaned up by employees of Defendant acting within the course of their employment for Defendant and in the furtherance of Defendant’s business and affairs.” Plaintiff is limited to this specific ground of negligence.

Defendant produced, in a proper manner, evidence that the floor where plaintiff slipped was clean and dry, and that no foreign substance on the floor caused plaintiff to slip. Plaintiff’s affidavit did not controvert these facts. No jury issue on improper or negligent cleaning remained in the case.

Since this was the only ground for recovery which could have been submitted to a jury under plaintiff’s pleading, all other issues of fact raised by this affidavit became immaterial. City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125 (1945); Gunnells Sand Company v. Wilhite, 389 S.W.2d 596 (Tex.Civ.App., Waco 1965, ref., n. r. e.).

Appellant contends that a summary judgment should not have been granted because appellee’s exceptions to plaintiff’s original petition had not been presented to the trial court. He reasons that he has been deprived of his right to amend in view of the fact that had the exceptions been sustained he would have been entitled to amend the pleading. This Court has held that a summary judgment may be granted where the plaintiff’s petition fails to state a cause of action. Snow v. Milner, 364 S.W.2d 726 (Tex.Civ.App., Houston 1963, ref., n. r. e.). See also Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App., San Antonio 1953, writ dism.).

Here, however, the petition stated a cause of action. In effect the defendant waived his exceptions. The burden was on him to negative all grounds of recovery that were presented by the pleadings. This was done.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    FARMERS STATE BANK OF BROOKSHIRE, Appellant, v. J. T. LEWELLEN, d/b/a Lew’s Diesel Marine Services, Appellee.
    No. 241.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 8, 1966.
    James E. Ross, Blades, Crain, Slator, Winters & Ross, Houston, for appellant.
    Robert C. Davee, Eastham, Watson, Dale & Forney, Houston, for appellee.
   MOORE, Justice.

This is an appeal from a Summary Judgment. Plaintiff, Farmers State Bank of Brookshire, hereinafter referred to as “plaintiff bank,” brought suit for damages against defendant, J. T. Lewellen, d/b/a Lew’s Diesel Marine Services, hereinafter referred to as “defendant Lewellen.”

Plaintiff bank alleged that prior to October 3, 1963, it was the holder of a promissory note executed by the owners of a documented fishing vessel known as Miss Telen; that said note was secured by a First Preferred Ship Mortgage covering the vessel. Plaintiff bank further alleged that a third party had filed an in rem proceeding against the Miss Telen in the United States District Court seeking foreclosure of a maritime lien; that pursuant to a writ issued by said court, the United States Marshal had arrested the Miss Telen and had placed her in the “care, custody and control” of the defendant Lewellen for safekeeping, pending further orders of the court. Plaintiff bank further alleged that while moored at defendant Lewellen’s boat dock, a fire occurred on board the Miss Telen, severely damaging the vessel; that the fire damage was proximately caused by defendant Lew-ellen’s negligence and as a result, plaintiff bank’s security value in the vessel was decreased, thus causing the bank to suffer damages.

Defendant Lewellen answered the petition with a general denial and also excepted to the plaintiff’s petition on the ground that the petition did not state whether plaintiff was seeking a recovery from defendant in his official capacity as an agent or employee of the United States Marshal, or solely in defendant’s individual capacity. Plaintiff bank declined to amend.

Defendant Lewellen then filed an un-sworn motion for Summary Judgment. In his unsworn motion, defendant Lewellen asserted that he was not liable to the plaintiff bank because plaintiff’s petition shows on its face that at the time of the fire he was acting in his official capacity as an agent or employee of the United States Marshal and as a result, plaintiff’s cause of action was against the United States. Therefore, he alleged that the trial court was without jurisdiction, asserting that plaintiff’s exclusive remedy was against the United States on the Admiralty side of the docket in the United States District Court under the Suits in Admiralty Act, 46 U.S. C.A. Sec. 741-752.

After a hearing the trial court entered an order granting defendant Lewellen’s motion for Summary Judgment, reciting as follows:

“ * * * the court finding that the Plaintiff asserts a cause of action against the Defendant for alleged acts or omission done or not done in the cause and scope of the Defendant’s official duties as agent or deputy of the United States Marshal, as official custodian of the vessel MISS TELEN for said Marshal, such vessel being at the material time in the official custody of the United States District Court for the Southern District of Texas by virtue of a writ issued by such Court; and this Court further finding that suit cannot lawfully be maintained against the Defendant in his individual capacity for acts and/or omissions in the course of his duty, and that the exclusive jurisdiction of the cause of action asserted in the Plaintiff’s Petition is under The Suits in Admiralty Act, 46 U.S.C.A., Sec. 741, et seq., and that the United States District Court has exclusive jurisdiction of such suits, and that this Court has no jurisdiction over such cause of action; it is therefore
“ORDERED, ADJUDGED and DECREED that the Defendant’s Motion for Summary Judgment be and the same is hereby in all things granted and that Plaintiff’s Petition and the cause of action asserted herein be, and the same are hereby dismissed, * * * ”

Plaintiff bank excepted to the ruling of the court and has perfected this appeal.

Plaintiff bank contends that since defendant’s motion for Summary Judgment was not under oath, the pleadings alone are sufficient to create a fact issue upon the question of whether or not Lewellen was an agent or employee of the United States Marshal and therefore the court erred in dismissing his suit. Lewellen, on the other hand, contends that since plaintiff’s petition shows on its face that he, Lewellen, was acting in his official capacity as an agent or employee of the United States, the lower court was without jurisdiction. Therefore, he asserts that it was not necessary that his motion for Summary Judgment be under oath.

Section 742 of the Suits in Admiralty Act, supra, reads as follows:

“In cases where if such a vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against any corporation mentioned in the section 741 of this title. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside * * (Emphasis supplied).

Section 745 of the Act provides:

“ * * * where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States or of any incorporated or unincorporated agency thereof whose act or omission gave rise to the claim: * * * ” (Emphasis supplied).

The parties agree that when damages are sustained by a vessel while in the custody of the United States District Court, a suit for damages can be brought only against the United States and must be brought only in the Federal Courts in Admiralty. Tebbs v. Baker-Whitely Towing Co., et al., D.C., 227 F.Supp. 656.

Our rules providing for the Summary Judgment procedure specifically provide that a motion for Summary Judgment may be framed without supporting affidavits. Rule 166-A, Texas Rules of Civil Procedure.

In this connection, McDonald in his work on Texas Civil Practice, at Section 17.26.3 says:

“(i) Where a motion is directed solely to the pleadings, and is not supported by affidavits, depositions, admissions, or other extrinsic evidence, the motion is closely analogous to a special exception challenging the sufficiency of the opponent’s pleading as a matter of law. It may challenge the sufficiency of the petition to allege an enforceable claim, or assert that it shows on its face the existence of a defense, or it may urge that the answer fails to state a tenable defense. No supporting or counteraffidavits are necessary on such a motion. If the pleading, when liberally construed, is sufficient in law to show a fact issue, the motion will be overruled. On the other hand, if the pleading on its face conclusively shows that the moving party is entitled to judgment, the motion will be grant-⅜ ⅜ ⅝ **

Reduced to its simplest language, the pertinent allegations of plaintiff’s petition allege that pursuant to process issued out of the United States District Court, the Marshal seized the vessel and placed it in the care, custody and control of defendant Lewellen for safekeeping; that Lewellen accepted the vessel for safekeeping and kept it in his custody until it was seriously damaged by fire; and that the damages to plaintiff’s security was proximately caused by the negligence of defendant, his agents, servants and employees in the care, custody, control and safekeeping of the vessel.

While the plaintiff’s petition did not specifically allege Lewellen was an “agent” or “employee” of the United States, we think it alleges all the facts necessary to show such a relationship. It shows that the United States offered him custody of the vessel for safekeeping and it shows that he accepted it for such purpose, and at the time of the fire, he was engaged in the performance of the duty assigned him by the United States Marshal.

A similar situation was presented in Tebbs v. Baker-Whitely Towing Co., et al., supra, and there the court held that when any person or firm takes actual custody of a vessel for safekeeping from an authorized agent of the Federal Court, such person or firm is, within the contemplation of the Suits in Admiralty Act, deemed to be an agent or an employee of the United States.

Plaintiff’s petition having alleged a cause of action lying exclusively in the jurisdiction of the United States District Court sitting in Admiralty, it follows that the lower court was without jurisdiction and the Summary Judgment dismissing the cause was proper.

Judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    BUCKALOO TRUCKING COMPANY et al., Appellants, v. Mrs. Bennie M. JOHNSON, a widow, et al., Appellees.
    No. 255.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 15, 1966.
    Lewright, Dyer & Redford, J. M. Burnett, Corpus Christi, for appellants.
    Butler, Binion, Rice, Cook & Knapp, John L. McConn, Jr., Houston, for appellees.
   OPINION

GREEN, Chief Justice.

This is a venue case. The only point of error made by appellants to the court’s order overruling their joint plea of privilege reads as follows:

“The Trial Court erred in overruling Appellant’s Plea of Privilege for the reason that Appellees, Plaintiffs below, did not establish upon the hearing on the Pleas of Privilege that the collision occurred in Nueces County, Texas.”

The burden was on appellees at the venue hearing to prove, among other requirements not in issue on this appeal, that the collision between deceased’s car and defendants’ truck occurred in Nueces County, Texas. In order to make such proof, ap-pellees introduced evidence that the collision occurred about seven-tenths of a mile west of Clarkwood on State Highway No. 44 between Corpus Christi and Robstown, and that Highway 44 is one of the main arteries from Corpus Christi to Robstown. Other than that, there was no testimony that the cause of action sued upon aróse in Nueces County, Texas. The question to be determined is whether considering the applicable rules of judicial notice, such evidence supports the implied finding of the trial court that the accident happened in Nueces County, Texas.

Appellants recognize the well established rule that a court may take judicial notice that a particular town is the county seat and is located within the boundaries of the county. Tyson Const. Co. v. Seaport Grain, Inc., Tex.Civ.App., 388 S.W.2d 731, 735, writ dism.; Yanta v. Davenport, Tex.Civ.App., 323 S.W.2d 636, writ dism. Of course this rule is subject to the qualification that where the county seat of one county is partially in one county and partially in another; such as Amarillo, Texas, the court will take judicial notice that such city is not situated wholly within the county of which it is the county seat. Southwestern Investment Company v. Shipley, Tex.Sup.Ct., 400 S.W.2d 304; Ladehoff v. Boxwell, Tex.Civ.App., 390 S.W.2d 368, writ dism. with written opinion by Sup.Ct., Boxwell v. Ladehoff, 400 S.W.2d 303.

Appellants, in support of their position as stated in the point of error, make a distinction between matters of common knowledge and matters which the courts may judicially notice, and cite a number of Courts of Civil Appeals cases as holding that, regardless of common knowledge, judicial notice will not be taken that a particular place is in a particular county when the same is not a county seat. Fairall v. Sutphen, Tex.Civ.App., 296 S.W.2d 309, n. w. h.; Ross Bros. Horse & Mule Co. v. First Nat. Bank of Coolidge, Tex.Civ.App., 158 S.W.2d 819, n. w. h.; Missouri, K. & T. Ry. Co. of Texas v. Lightfoot, 48 Tex.Civ.App. 120, 106 S.W. 395, writ ref.; Petroleum Casualty Co. v. Crow, Tex.Civ.App., 16 S.W.2d 917, n. w. h.; Carson v. Dalton, 59 Tex. 500.

On the other hand, a number of the Courts of Civil Appeals have held that a court may judicially notice that a place not the county seat is in a particular county. Some of the cases so holding are: American Empire Life Insurance Company v. Hakim, Tex.Civ.App., 312 S.W.2d 739, n. w. h.; Paul v. Johnson, Tex.Civ.App., 314 S.W.2d 338, writ dism.; Brown Express Company v. Dieckman, Tex.Civ.App., 344 S.W.2d 501, n. w. h.; Smith v. Conner, Tex.Civ.App., 211 S.W.2d 630, n. w. h.; Dormer v. Singleton Farm and Ranch, Tex.Civ.App., 351 S.W.2d 377, n. w. h.

In 1961, the Texas Supreme Court in a venue case took note of the fact that the Courts of Civil Appeals have differed in the use of judicial notice in the context of the question, here involved in Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521. After discussing a number of Texas cases on judicial notice, the Court stated its holding as follows:

“ * * * we hold that a district court sitting in Cherokee County can judicially notice the certain and indisputable fact of common knowledge that the entire city of Jacksonville is located in such county, and that the Court of Civil Appeals properly did so in this case notwithstanding the district court was not formally requested so to do and did not formally announce that it had done so.”

The Court pointed out that such rule would apply only in the trial of civil cases.

The following are certain and indisputable facts of common knowledge of which any district judge presiding over the trial of a civil case in Nueces County, Texas has authority to judicially notice: (1) that the city of Corpus Christi is the county seat of and is located entirely in Nueces County, Texas; (2) that the city of Robstown, though not the county seat, is entirely located in Nueces County, Texas, in a westerly direction from Corpus Christi; and that the western boundary of Nueces County lies several miles west of Robstown; see Smith v. Conner, supra; (3) that Clark-wood adjoins Corpus Christi on the west, and is in Nueces County, Texas; see Paul v. Johnson, supra; (4) that the portion of State Highway 44 extending from Corpus Christi to Robstown is entirely in Nueces County, Texas; (5) that a point on State Highway 44 about seven-tenths of a mile west of Clarkwood is in Nueces County, Texas; see Brown Express Company v. Dieckman, supra. We presume that the trial court in support of his judgment took judicial notice of such certain, commonly known, easily ascertainable and indisputable facts. As stated in the quotation from Harper v. Killion, supra, this Court of Civil Appeals can take such judicial notice, notwithstanding the district court was not formally requested so to do, and did not formally announce that it had done so.

Appellant has filed a supplemental brief in which he raises the additional point that the evidence did not establish that the accident happened in the State of Texas. For the reasons heretofore stated, judicial notice is taken that the site of the accident was in Nueces County, Texas. In addition, appellant Moravitz, driver of the corporate appellant’s truck on this occasion, testified that in his two and one-half hour’s driving, preceding the collision, he went through such places as Kenedy, Beeville, Sinton, Odem, State Highway 9, State Highway 44, and that just before the collision he stopped on the highway headed into Corpus Christi within three-fourths of a mile from Clark-wood. Eye Witness Hart testified that he resided in Corpus Christi; that on the morning of the accident he ate breakfast at a cafe on Leopard Street in Corpus Christi, and then left on Highway 9, to Highway 44, and thence on 44 through Clarkwood to get to his job at Kingsville. Appellant admits in his brief that the evidence shows that the accident occurred on Highway 44 about seven-tenths of a mile west of Clarkwood. This suit was filed and the venue question was tried in a Texas district court sitting in Corpus Christi, Nueces County, Texas. All of the places and locations mentioned in the evidence are indisputably and according to common knowledge known to be within the State of Texas, and we believe it would be unthinkable to say that from the combination of such facts, taken together, we do not judicially know that the collision occurred in the State of Texas.

The judgment is affirmed.

       Jacksonville is not the county seat of Cherokee County. The city of Rusk is the county seat.


text:
    Kenneth MITCHELL et ux., Appellants, v. GREYHOUND BUS LINES, INC., Appellee.
    No. 236.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Rehearing Denied Jan. 5, 1967.
    Ted Odom and Jack K. Allen, Tyler, for appellants.
    Donald Carroll and Michael Hatched, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee.
   MOORE, Justice.

Plaintiffs, Kenneth Mitchell and wife, Glenna Mitchell, instituted this suit against Greyhound Bus Lines, Inc., for personal injuries alleged to have been sustained by Mrs. Mitchell while a passenger on defendant’s bus as a result of a collision between a Chevrolet automobile and the bus.

Plaintiffs alleged numerous grounds of negligence on the part of the driver of the bus, Donald Round, which they alleged proximately caused the accident and resulted in personal injuries to Mrs. Mitchell. The case was tried to a jury. By their verdict, the jury exonerated defendant’s driver of any act of primary negligence. The jury also found that the accident was unavoidable and that the operation of the Chevrolet automobile was the sole proximate cause of the accident. Based upon this verdict, the trial court entered judgment that the plaintiffs take nothing, from which plaintiffs perfected this appeal.

A brief statement of thé facts giving rise to the controversy will he helpful in considering appellants’ points of error.

According to the testimony of appellee’s driver and other evidence produced by ap-pellee, the accident occurred shortly after midnight when appellee’s bus was traveling at about 55 to 60 miles per hour upon the highway near Camden, Arkansas. The bus came over a slight rise in the road, at which time the driver testified that he was able to see the headlights of an approaching car which was rounding a curve in the road about a half mile away. After the bus topped the rise, the bus and the car continued on toward one another, each vehicle in his own lane of travel. When the automobile was approximately 150 to 300 feet from the bus, it suddenly and without warning crossed sharply into the bus’s lane of traffic, crossed to the shoulder of the road and then weaved back slightly from the shoulder and collided with the front of the bus. The bus driver testified that he did not have time to blow the horn or dim his lights; however, he testified that he hit his brakes immediately when the passenger car crossed the center line and further testified that he may have pulled to the left and away from the path of the oncoming car just before the impact, but testified that the oncoming vehicle collided with the bus head on in his lane of traffic.

Mrs. Mitchell testified that immediately before the collision she observed the other vehicle as it approached the bus. According to her testimony, both the bus and the other vehicle “zigzagged” from their respective lanes of traffic several times before the collision. She further testified that she first observed the Chevrolet when it crossed into the lane of travel occupied by the bus and at that time she knew there was going to. be a collision but admitted that she did not know in which lane of traffic the collision finally occurred.

Appellants have brought forward twelve points of error dealing mainly with complaints regarding the ruling of the trial court in the admission or exclusion of evidence, and with complaints concerning the charge of the court.

In appellants’ ninth and eleventh points, they complain of the court’s charge because of the conditional submission of special issues Nos. 2 and 14. Appellants duly and properly objected to the conditional submission of special issue No. 2 which was conditioned on a negative answer to special issue No. 1. They also properly objected to the conditional submission of special issue No. 14, which was conditioned on a negative answer to special issue No. 13.

The issues complained of, together with the jury’s findings thereon, were as follows:

“SPECIAL ISSUE #1: Do you find from a preponderance of the evidence that the bus driver could have stopped the bus prior to the collision in question ?
“Answer ‘Yes’ or ‘No.’
“ANSWER: NO
“If you have answered the foregoing Special Issue ‘Yes,’ then, and in that event only, answer the following issue:
“SPECIAL ISSUE #2: Do you find from a preponderance of the evidence that the failure of the bus driver to stop the bus prior to the collision in question was negligence?
“Answer ‘Yes’ or ‘No.’
“ANSWER_”

Since the jury answered Special Issue No. 1 “No,” they did not answer Special Issue No. 2.

“SPECIAL ISSUE #13: Do you find from a preponderance of the evidence that the driver of the bus, at the time and on the occasion in question, could have turned to the right and thereby avoided the collision?
“Answer ‘Yes’ or ‘No.’
“ANSWER NO
“If you have answered the foregoing Special Issue ‘Yes,’ then, and in that event only, answer the following issue:
“SPECIAL ISSUE #14: Do you find from a preponderance of the evidence that the failure of the bus driver to turn to the right at the time and on the occasion in question was negligence?
“Answer ‘Yes’ or ‘No.’
“ANSWER_”

The jury did not answer Special Issue No. 14 because the court instructed them not to do so in the event they answered Special Issue No. 13 “No.”

Appellants alleged that the driver of the bus was negligent in failing to stop the bus. They also alleged that the driver was negligent in failing to turn to the right immediately before the collision. We believe, as the trial court apparently did, that there was sufficient evidence in the record to support the submission of each of the negligence issues.

Our rules of civil procedure require that the theories of each party b<= directly submitted to the jury where raised by the pleadings and the evidence. Rule 279, Texas Rules of Civil Procedure. This right cannot be lost or defeated by jury findings on other issues, which, in effect, indirectly negative a favorable finding on an issue submitted, or by submitting other issues but not allowing them to be answered by the jury. Greer v. Thaman, (Tex.Com.App.) 55 S.W.2d 519; Montgomery v. Gay, (Tex.Civ.App.) 212 S.W.2d 941.

The usual way of submitting a negligence case is to inquire of the jury by special issues: (1) whether the defendant did or omitted to do the act alleged; (2) whether the act or omission was negligence; (3) whether such negligence was a proximate cause of the injury and (4) amount of damages. Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422. To have followed this procedure would have led to an unconditional submission of the appellants’ affirmative issues Nos. 2 and 14.

We recognize that in some instances, where one or more issues are determinative of the kind of judgment to be rendered, the court may direct the jury to answer other issues only if they find such completely determinative issues or issue in a certain way. Harris v. Thornton’s Department Store, (Tex.Civ.App.) 94 S.W.2d 849; Westinghouse Electric Corp. v. Pierce, supra.

In our view, however, such rule is not applicable here because neither special issue No. 1 nor special issue No. 13 are determinative issues upon which a judgment for the appellee could have been rendered.

An examination of special issue No. 1 and special issue No. 13 shows both issues to be extremely broad and general in nature. Neither of the issues calls upon the jury to test the conduct of the driver. Moreover, neither of the issues supplies the jury with any standard of care by which his conduct was to be tested. In each instance the jury was merely called upon to take a hindsight view of all the .facts and circumstances and then to express their opinion or conclusion as to whether or not the driver could have stopped the bus or could have avoided the collision by turning to his right. In our view, neither special issue No. 1 nor special issue No. 13 are determinative of any fact and in no event can they be said to be determinative of the case. As a result, the appellants were denied the right of having the jury pass upon the ultimate and controlling fact issues as to whether or not the driver was negligent in failing to stop the bus and whether he was negligent in failing to turn to his right, as inquired about in special issues Nos. 2 and 14.

These issues were affirmative issues upon which appellants relied for recovery and as such should have been submitted unconditionally. In submitting the issues conditionally based upon findings to other issues, which were not determinative, we think the trial court fell into error requiring the case to be reversed for another trial.

In view of another trial, discussion of other points of error assigned by the appellants will not be necessary.

Finding that appellants were deprived of their right to have their affirmative issues unconditionally submitted and passed upon by the jury, the case is reversed and remanded for a new trial.


author: TIREY, Justice.

text:
    Mrs. Ruby WALTON, a widow, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 4582.
    Court of Civil Appeals of Texas. Waco.
    Nov. 17, 1966.
    Rehearing Denied Dec. 8, 1966.

      Patterson, McDaniel, Moore & Browder, Bennett B. Patterson, Houston, for appellant.
    William A. Olson, City Atty., City of Houston, Homer T. Bouldin, Trial Supervisor, Houston, for appellee.
   OPINION

TIREY, Justice.

Mrs. Walton, a widow, brought this action to restrain the City of Houston from the issuance, assignment, sale and transfer of certain paving certificates during the pendency of the suit and for judgment setting aside the assessments levied against her and her property in the city, by ordinance dated January 27, 1965, and prayed that the paving certificates issued or about to be issued be held null and void. On trial before the court, without a jury, the court found in favor of the city of Houston and entered a take-nothing judgment against Mrs. Walton, to which judgment she excepted and perfected her appeal to the Houston court, and the cause is here on transfer.

There was no request for findings of fact and conclusions of law, and none filed. Under the record all questions of law were expressly found in favor of the city. All questions of fact are impliedly found in favor of the city.

The. judgment is assailed in what appellant contends constitutes 29 errors. Since the record is undisputed that the city made a contract with the State Highway Department to construct the paving in question, and that the city paid therefor according to ■the contract price stipulated between it and the State Highway Department, and thereafter undertook to fix the proportionate part of the debt and lien against appellant and her property, we think the controlling question in this case is whether or not the city has followed the statutory requirements required of it to fix such debt and lien against appellant and her property.

As we understand this record, it is undisputed that the improvements made on the particular streets in question were not made by competitive bidders, and that the city paid the highway department as per its contract with it for such paving and thereafter undertook to fix a proper paving debt and lien against Mrs. Walton and her property. Under the foregoing undisputed factual situation appellant contends that the paving certificates issued or to be issued are not only irregular, but void, because the debt and paving liens were not fixed by competitive bidding. Citing Bush v. City of Denton, Tex.Civ.App., 284 S.W. 251, (w.ref.). See also Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Vilbig Brothers v. City of Dallas, 127 Tex. 563, 91 S.W.2d 336, 96 S.W.2d 229. We overrule this contention for reasons hereinafter stated.

The record here shows that the city, acting by and through its City Council, after much study and consideration by its Planning Commission, Department of Public Works and other employees, decided to construct or have constructed the public improvement, which included the subject matter before us. The record also shows that the required ordinances, motions, hearing and other proceedings providing for and relating to such project were duly passed and held as provided by law; that the city, for practical reasons, made a contract and agreement with the State of Texas and the Texas Highway Commission for the construction of such project; that as a result the State entered into a contract for certain construction, including the subject matter, with the Century Construction Company; that such construction was completed and the City of Houston appropriated the sum of $171,800.00 for the construction of the city project. The record also reflects that the estimate letter submitted to the City Council estimated the cost of the improvements proposed to be assessed against the abutting property for the paving of Monroe Road from the Gulf Freeway to State Highway #3, was $41,000.00. (The evidence shows that Monroe Road is a street, and is within the corporate limits of the City of Houston). The City Council by ordinance closed the hearing and levied the assessments. As stated above, the total estimate costs for the Monroe Road project was $41,000.00, and of this amount the property owners were assessed the sum of $15,988.96, leaving the city to pay the balance of $25,-011.04. This is shown by ordinance No. 64-1033, an ordinance which gives the estimated cost, and ordinance 65-141, which gives the actual assessments levied. (Appellant does not point out any irregularities as to the ordinances above referred to.) The city paid the state a total sum of $170,-500.00 for the entire paving improvement project which the state had constructed for the City of Houston. Appellant contends that because the State of Texas, or the Texas Highway Department executed a contract with a contractor which included the paving project for the City of Houston, that it was illegal and, therefore, made invalid the paving assessment made by the city against the appellant and her property. This contention is overruled. See Article 1105b, Vernon’s Ann.Tex.Civ.St.; also Glenn v. City of Arlington, (w. ref., n. r. e.) 365 S.W.2d 197, and cases there cited. The Arlington case cited is very similar to the factual situation here before us. The court in the Arlington case held in effect that since the City of Arlington was a Home Rule City, that it had jurisdiction to arrange and pay for the improvement of a portion of the state highway within its municipal boundaries and assess abutting property and owners for the cost thereof. That is the exact situation here before us, and we think the appellant has failed to point out any irregularities of the city in its action in the matter here before us. See City of Big Spring v. Board of Control, 404 S.W.2d 810, (Sp.Ct.) 39 Texas Jurisprudence 2d, Municipal Corporations, Section 308, pages 638-639. Moreover, it is well settled that the building and maintenance of streets by a municipal corporation is a proprietary function. See Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951; City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180; City of Houston v. Glover, (w. ref., n. r. e.), Tex.Civ.App., 355 S.W.2d 757. The same rule applies to sidewalks. See Koonce v. City of Mesquite, Tex.Civ.App., 343 S.W.2d 557. The rule followed by the Texas courts has been followed by the Supreme Court of West Virginia in Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d 462.

There was testimony to the effect that Monroe Road was not a state highway, but a street in the City of Houston; that the construction of same was legally provided for and that same was completed, and that the city council had acted fairly and justly in all matters relevant to the improvements, and the court has impliedly so found. Evidence was also tendered to the effect that Mrs. Walton’s abutting property was enhanced at least to the amount she and her property were assessed for such improvement, and the court has impliedly so found. There was evidence to the effect that the City Council acted in the utmost good faith in all proceedings, including the contract which it made with the state for such construction, and in passing the ordinance, and in conducting a hearing prior to such assessments being made, and in making such assessments, and the court has impliedly so found.

The foregoing views which we have expressed are supported by the City of Houston v. Blackbird, Tex., 394 S.W.2d 159, and cases there cited. It will be noted in the Blackbird case, our Supreme Court held in effect that the determination of whether the City Council acted arbitrarily in making findings and decisions with respect to finding that the property owners and their properties would be benefited by the subject paving improvements or for a certain amount in money was a question of law, not a question of fact; and that such judicial review is not subject to de novo trial. It further held that the ordinance levying the assessment is valid. There is evidence to the effect that the city did not assess Mrs. Walton, or her property, the maximum which could have been assessed as provided by Article 1105b, V.A.T.S. The evidence is to the effect that the city paid more than 50% of the cost of the improvements, and more than 50% of the construction of the project which Mrs. Walton’s property abutted. The evidence relating thereto shows the total cost was estimated to be $41,000.00 for the Monroe Road construction, and that the property owners were assessed $15,988.96, and the City of Houston paid $25,011.04. The record also shows that Mrs. Walton and her property were not assessed for the 180 feet from the bridge to Berry Gully, and one witness testified to the effect that this property had not been enhanced by the improvement. There is evidence that the city assessed in part Mrs. Walton and her abutting property as to its enhancement resulting from such improvement at $16.00 per lineal foot, except for 53.30 feet which was assessed at $5.60 per foot. Also one witness testified such property was enhanced more than $5.60 per foot. The evidence also shows that one other property owner had property abutting Monroe Street, and that his assessment was $16.00 per lineal foot, which was exactly the same as part of Mrs. Walton’s property was assessed per lineal foot.

We think we should point out that Mrs. Walton testified at the trial that the only commercial use of any of her property at such location prior to the construction of Monroe Road was more than 35 years ago, and that at such time she leased a Gulf pumping plant one acre for a boosting station; that since Monroe Road was constructed she had made leases for filling stations, one to Humble, and one to Shell, and a lease for a car wash; that such leases for the filling stations were for IS years each, and that the lease for the car wash was for a period of five years, but she refused to answer the question as to the consideration paid for such leases; that she had promised Shell and Humble that she would not divulge such information. She did testify to the effect that she received $100.00 per month for the car wash lease.

We think the record here is ample to support the implied finding of the court that the abutting property of Mrs. Walton has been substantially enhanced due to the Monroe Road paving project. We find no evidence in the record to the effect that the Mayor or City Council of the City of Houston acted fraudulently, deceitfully, unreasonably or capriciously in such matters above referred to, and the court has impliedly so found.

We have carefully examined the ordinance dated January 27, 1965, which was passed by the City of Houston to fix the paving lien against Mrs. Walton’s property and others, not necessary to detail here, a copy of which ordinance being attached to plaintiff’s original petition on which she went to trial, and we see nothing irregular in the ordinance, and appellant does not point out in her brief any irregularities thereto or wherein it is deficient as such. The record is likewise undisputed that a hearing was had, and that Mrs. Walton and her counsel appeared at the hearing and she had an opportunity to give fully her testimony as to why the paving assessment should not be made against her property.

We have considered the evidence most carefully and we are of the view that the evidence tendered is sufficient to sustain the implied findings of the trial court that the city followed the regulations provided by statute in fixing this lien; that there was no fraud; no bad faith; that the city did not act fraudulently in finding that Mrs. Walton’s property would be benefited by the paving improvements or in determining that she would be benefited in the amount it fixed for paving for each front foot thereof. Nor do we think the city acted arbitrarily in making the findings wherein it was authorized to levy and fix the debt and paving lien against Mrs. Walton’s property for amounts stated therein.

Since we are of the view that the evidence is sufficient to sustain the implied findings of the trial court that the assessments made against Mrs. Walton and her property were not based on an arbitrary determination of the benefits she received thereon, such assessments must be permitted to stand. See City of Houston v. Blackbird, 394 S.W.2d 159, (Sp.Ct).

Appellant, in what she designates as group 2 of her alleged errors, contends in effect that the levying of the assessments against her property, and the assessments for taxes thereon, was in disregard of the Constitution of the State of Texas. We overrule this contention. Since our Supreme Court has passed upon the statute providing for paving of the streets and distribution of the assessments necessary to pay for same, we think it is conclusive upon the Supreme Court of the United States. Our view is that such is the holding in Hibben v. Smith, 191 U.S. 310, 24 S.Ct. 88, 89, 90, 48 L.Ed. 195. See also Utley v. City of St. Petersburg, Fla., 292 U.S. 106, 54 S.Ct. 593, 78 L.Ed. 1155, rehearing denied, 292 U.S. 604, 54 S.Ct. 712, 78 L.Ed. 1466.

As we understand the rule, statutory notice by publication is sufficient and constitutes due process and personal notice is not essential. Wimberly v. Cowan Investment Corporation, U. S. Court of Appeals, 5th Circuit, 80 F.2d 452, 455; cert. denied 298 U.S. 654, 56 S.Ct. 674, 80 L.Ed. 1381.

As stated above, Mrs. Walton and her counsel were present at the hearing fixing the lien.

We have carefully considered each of the assignments of error made by appellant and we are of the view that none present reversible error, and each is overruled.

The judgment of the trial court is affirmed.