author: CHAPMAN, Justice.

text:
    Vera BASS, Appellant, v. Russell CUMMINGS, Appellee.
    No. 7708.
    Court of Civil Appeals of Texas. Amarillo.
    April 17, 1967.
    Rehearing Denied May 22, 1967.
    Jack Hazlewood, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Amarillo, Richard L. Cazzell, Amarillo, of counsel, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment rendered for defendant below, Russell Cummings, son-in-law of plaintiff-appellant, Vera Bass, in a suit by the mother-in-law for personal injuries resulting from a fall when a throw rug on a landing three steps above the basement floor in the Cummings’ home slipped under her footing as she was proceeding down the stairs into the basement. If we understand the record, the stairsteps proceed vertically down the stairwell to a landing, followed by a left turn, then three more steps to the basement floor. When the throw rug slipped under appellant, she fell down the three steps into the basement, landing on a baby carriage, and suffering various physical injuries, including a broken hip.

Appellant at the time of her fall, resided across the street from her daughter, son-in-law defendant, and their three children. Mrs. Bass visited in the Cummings’ home regularly and had “a free run” of the house. She was aware that they used throw rugs in their home, had been in the basement no more than a half-dozen times, and though appellee and his wife and children had used the stairs with the throw rug in place without incident for five years, Mrs. Bass testified she was not aware of the rug on the bottom landing. However, it had been there on previous occasions when she went into the basement.

The stairway was dark, but such darkness was apparent to anyone standing at the top of the stairs. The only light on the inner side of the stairwell was the reflection cast thereon from two lamps in the basement. The same lighting situation had existed from the time appellee .built the basement until appellant was injured, and still remains the same way.

The reason appellant visited the Cummings’ home on the day of her injury was to see her grandchildren. It had recently snowed lightly, so she was in winter clothes with two light sweaters, a full-length winter coat, fur-lined shoes, and had on her spectacles. As was her custom, she opened the front door and called. The grandchildren answered from the back of the house and said, “Come in, Grandmother.” On the way to the den where the children were, “they (meaning her son-in-law and daughter) called me down.” She backtracked and started down the stairs to the basement.

“There is just a faint light in there. I could tell there was a light here, but as far as being light on the stairway, there isn’t any.”

She then replied affirmatively to the question : “In other words, you were kind of walking down into a black hole ?”

After reaching the landing she turned to proceed down the other three steps, “ * * felt something soft around my feet” then stumbled and fell.

The case is before us upon one point of error to the effect that the pleadings and depositions “ * * * were sufficient to raise triable, disputed issues of fact.”

In determining whether the subject motion was properly granted, we must accept as true all summary judgment evidence which tends to support Mrs. Bass’s contention and give her the benefit of every reasonable inference which properly can be drawn in favor of her position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The purpose of Rule. 166-A, V.A.T.R., “ * * * is to expedite the final determination of a case where there are no material issues of fact, and the sole function of the court in such cases is to determine whether there is an issue of fact to be tried.” Hester v. Weaver, 252 S.W.2d 214 (Tex.Civ.App.-Eastland, 1952, writ ref’d).

The summary judgment components present in the instant case are the pleadings, the motion for summary judgment, appel-lee’s reply thereto, and the oral depositions of appellant and appellee. There are no admissions on file and no affidavits. Therefore, we must examine the two depositions in the record and apply them under the rules above stated to the applicable law to determine if there is a material issue of fact. This is true because: “When facts entitling the moving party to prevail have been established by * * * deposition testimony * * * the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered.” Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960).

By brief appellant admits that the duty owed by a host to his social guest is not as broad as the duty owed by the occupant to his business invitee; that many courts in many cases characterize the duty owed by a host to a social guest as similar to the duty owed by the occupant of land to a mere licensee; and that the host does not owe to his social guest the duty of maintaining the premises in a reasonably safe condition, but the guest takes the premises as he or she finds it. Appellant then contends there are two exceptions to these well-established rules just stated; i. e., (1) there is a “duty to warn a licensee or guest whose presence is known and whose danger is perceived,” and (2) there is a “duty of the host not to injure the guest on the premises through active negligence.” The statement relied upon in appellant’s Exception No. (1) just stated uses the words “licensee” and “guest” synonymously, and the textual statements quoted in support thereof say, inter alia: “ * * * the rule appears to be that the relation between host and guest is not that of invitor and invitee, but that of licensor and licensee.” American Law Institute — Restatement of Torts, Section 30 defines a licensee as “ * * * a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.” Without relating further facts than those above stated, we believe the record clearly established appellant as a licensee.

One Texas Court of Civil Appeals, in drawing a distinction between an invitee and a licensee, has- quoted with approval from a textual statement to the effect that a licensee is on the premises by sufferance only “and not by virtue of any business or contractual relationship with or any enticement or inducement to enter held out to him by the owner or occupant, but merely in his own interest and for his own purpose, benefits, convenience and pleasure.” Snelling v. Harper, 137 S.W.2d 222 (Tex.Civ.App.—Texarkana, 1940, writ dism’d, judg.corr.) In this instance, by appellant’s own sworn deposition testimony, her presence in ap-pellee’s home was to visit her grandchildren. The most essential factor in determining whether one is an invitee or a mere licensee is whether the premises is public or private. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941). If on the premises as a licensee, “ * * * the only duty that the defendant owed her was not to injure her willfully, wantonly, or through gross negligence.” Carlisle v. J. Weingarten, Inc., supra. The last quoted statement is the expression of the Texas Supreme Court concerning the duty owed by the occupant of land or a public place to a licensee. We hold the duty is no greater upon an owner where the injuries occur in a private home and the relationship between the parties are as in the instant case. As stated in effect by appellant’s brief, a licensee takes the premises as he finds them. See Meeks v. Cowart, 84 S.W.2d 845 (Tex.Civ.App.-San Antonio, 1935); Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (Tex.Comm’n App.—1938, opinion adopted); Chekanski v. Texas & New Orleans Railroad Co., 306 S.W.2d 935 (Tex.Civ.App.-Houston, 1957, writ ref’d n. r. e.).

None of the cases cited and quoted from in the preceding paragraph involved a factual situation where a close relative having a “free run” of a private residence was injured nor any type guests in private homes. There appears to be no Texas case of such a nature. We must, therefore, look to other jurisdictions.

The Supreme Court of the State of Washington in Porter v. Ferguson, 53 Wash.2d 693, 336 P.2d 133 (1959) has held that a mother specially invited to the home of her daughter and son-in-law to help prepare the Sunday dinner because of her daughter’s injured toe was a licensee. “Thus, the defendants, as occupiers of the premises, owed to the licensee only the duty of not willfully or wantonly injuring them uAder the Washington rule as expressed in Dotson v. Haddock, 46 Wash.2d 52, 278 P.2d 338.” This was a case where the injured claimant slipped and fell because of a slick floor, of which the court assumed the son-in-law had cognizance.

The Supreme Court of Oregon in a death ■case resulting from falling down the stairs into the basement, where a lady guest had been in the basement only one time previously, denied recovery, as a matter of law, holding: “These duties imposed on the host are (1) not to willfully, wantonly or intentionally injure the guest, (2) not to injure the guest through active or affirmative negligent action, and (3) to warn a guest of any pitfall or trap from which the guest •could not avoid injury by reasonable care and skill.” Baer v. Van Huffell, 225 Or. 30, 356 P.2d 1069 (1960).

Those rules appear to be established law in Oregon by the previous holdings of the Supreme Court in that State in McHenry v. Howells, 201 Or. 697, 272 P.2d 210 (1954) and Burch v. Peterson, 207 Or. 232, 295 P.2d 868 (1956).

Where the testimony was conflicting as to whether a mother was invited to her son’s home at the invitation of her daughter-in-law to prepare supper for guests, clean the dishes and possibly take care of several minor children, or whether she was simply a social guest, the Supreme Court of Montana held such questions were for a jury. The court stated if the mother went to the home as a guest and was only to perform any customary and incidental chores, she was a licensee, then held: “The duty to a licensee is generally stated as the duty to refrain from acts of willful and wanton negligence.” Maxwell v. Maxwell, 140 Mont. 59, 367 P.2d 308 (1962).

The court stated the actual question in the case just cited was whether there was sufficient evidence to instruct the jury on the issue of hidden peril (ice under snow on defendant’s front step), quoting with approval from C.J.S. to the effect that the occupier “owes a duty not to knowingly or willfully * * * let the licensee run into, or expose him to, a hidden danger or peril,” then held there was no evidence that defendant knowingly or willfully exposed plaintiff to a hidden peril.

The Court of Appeals of Kentucky in Tharp v. Tharp, 346 S.W.2d 44 (1961) has held that a father as a visitor in the home of his son was a licensee and, as such, no duty was owed by the son other than of not knowingly letting him run into a hidden peril or willfully or wantonly causing him harm.

The evidence is without contradiction that Mr. Cummings did not know whether the rug was wadded before Mrs. Bass fell. The family had been using it for five years and it had been on the landing on other occasions when she negotiated the stairs into the basement. She had a “free run” of the house, visited there almost daily, and on the day in question went for the purpose of visiting her grandchildren. Being a licensee, she took the premises as she found them. Meeks v. Cowart, supra; Chekanski v. Texas & New Orleans Railroad Co., supra.

We hold there is not any probative evidence that Mr. Cummings perceived any danger to Mrs. Bass when “they” called her from the basement or knowingly did any act of willful or wanton negligence in leaving the rug on the stair landing or in exposing Mrs. Bass to a hidden danger or peril by the manner of construction of the stairwell or in the lighting thereof on the occasion in question. She had been down in the basement as many as six times. The rug was five years old and had been on the landing at other times when Mrs. Bass went into the basement. The lighting was no different to other occasions when she had gone down the steps.

Because we believe this to be a first impression case in Texas under the facts shown in the record, we make the holding deliberately that Mrs. Bass was a licensee and under the limitations in the cases cited in order that the Supreme Court of Texas may have a clear cut issue before them if that court does not agree with our reasoning and with the line of cases we have followed.

Believing no material fact issues are shown in the record the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    ROSELAWN CEMETERY, INC., Appellant, v. J. J. MARTIN et ux., Appellees.
    No. 14584.
    Court of Civil Appeals of Texas. San Antonio.
    May 17, 1967.
    House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.
    Tom Stolhandske, James N. Castleberry, Jr., San Antonio, for appellees.
   KLINGEMAN, Justice.

This is an action by appellees, J. J. Martin et ux., against appellant, Roselawn Cemetery, Inc., for alleged damages arising out of appellant’s breach of contract to sell certain cemetery plots to appellees, and for damages for pain, suffering and mental anguish allegedly arising out of such breach of contract and the burial of another person on one of such plots.

Appellees were the owners of Plots 1, 2 and 3 in Lot 313, and Plot 1 in Lot 314 of Roselawn Cemetery, which were being purchased under a monthly payment plan. Paul Martin, the father of J. J. Martin, was the owner of Plots 1, 2 and 3 in Lot 298, and Plots 1, 2 and 3 in Lot 295. A lot consists of three plots or burial spaces. For better identification of such lots and plots, a map or plat showing the layout of the properties involved is hereto attached. Mrs. Paul Martin was buried in one of the plots in

Lot 298. In May of 1963, appellees entered into a contract with appellant to purchase two more plots from appellant, being Plots Nos. 1 and 2 in Lot 296, for a consideration of $270.00, or $135.00 a plot, which said plots were also being purchased on a monthly payment plan. Appellees contend that such purchases were made pursuant to a family burial plan which involved their property and that of appellee’s father, Paul Martin, and that the reason they purchased the two plots in Lot 296 was that they adjoined the three plots in Lot 295 owned by appellee’s father, which would make five plots in a row available for use by Mr. and Mrs. J. J. Martin and their three children. Appellee J. J. Martin testified that while the record title to such plots in Lot 295 was in his father, that they were to be used by his family, and that the four plots in Lots 313 and 314 owned by appelless, were for the use of his brother. In May, 1964, appellees discovered that an unauthorized burial had been made in their newly acquired plots, and it was thereafter ascertained that said two plots had later been sold to a man named Dorn-stin, and that one of the Dornstin family was buried in one of such plots. Appellant’s testimony shows that thereafter ap-pellees were offered other plots, including Plots 2 and 3 in Lot 314, which two plots adjoined those in Lots 313 and 314 owned by appellees, in substitution for the plots sold to Dornstin, but that this was not satisfactory to appellees. Mr. Martin testified that such matter caused him concern, that he took tranquilizers, lost sleep, and became a night eater. Mrs. Martin testified such incident caused her mental pain and suffering and upset her work. She shed many tears, lost sleep, became irritable and cross, and took tranquilizers.

Trial was to a jury, with three special issues submitted:

No. 1. What sum of money, if any, do you find from the preponderance of the evidence will reasonably compensate the Plaintiffs for the loss of the two lots in Block 296?
Answer in Dollar and Cents, or None.
We, the jury, answer: $825.00.
In connection with the above and foregoing issue you will take into consideration the following elements and none others:
1. The reasonable market value of the lots at the time they were sold to Mr. Dornstin.
2. The loss of use of said lots to the said J. J. Martin.
No. 2. Do you find from the preponderance of the evidence, if any, that J. J. Martin and his wife, suffered any damage as a result of mental pain and suffering, if any, caused by the Defendant’s act of dispossessing them from the two lots in question?
Answer Yes or No: Yes.
No. 3. What sum of money, if any, would reasonably compensate J. J. Martin and wife, for such pain and suffering, if any you have so found?
Answer in Dollar and Cents, or None. $2,000.00

The trial court ordered a remittitur of $1,750.00, which appellees timely tendered, and judgment was entered by the court for appellees in the sum of $1,075.00.

Appellant contends on appeal that there is no evidence to support the jury’s answers to Special Issues Nos. 1, 2 and 3, or any judgment based thereon, and that there is insufficient evidence to support such answers and judgment. Appellant also contends that the trial court erred in allowing any recovery for pain and suffering; in overruling appellant’s motion for judgment; in overruling appellant’s motion to disregard the jury’s answers; and in entering judgment for $1,075.00, because there is no evidence or insufficient evidence to support such judgment. Appellees, by cross-assignment of error, contend that the order of remittitur was an abuse of the trial court’s discretion.

Appellant concedes the breach of contract and that appellees are entitled to nominal damages, but asserts that there is insufficient evidence to support the jury’s answer of $825.00 to Special Issue No. 1. Ordinarily, the measure of damages for breach of contract to sell real estate is the difference between the contract price and the market value of the property at the time of the breach. Elliott v. Henck, Tex.Civ.App., 223 S.W.2d 292, writ ref’d n. r. e.; 17 Tex.Jur.2d Damages § 57 (1960). The only evidence as to the market value of the plots at the time of breach was the evidence that such plots were sold to Dornstin for $165.00 a plot. Even if this is some evidence as to market value, there is still insufficient evidence to sustain the jury’s finding of $825.00 in answer to Special Issue No. 1. Appellees in their brief take the position that they have lost the use of five plots, being the two sold to Dornstin and three plots adjacent to them owned by Paul Martin, and that at $165.00 a plot, this would total $825.00. Special Issue No. 1 clearly restricts the amount of damages to the two plots in Lot 296. There is no evidence in the record of any loss of use of such plots to appellees up to the time of breach. The evidence further shows the purchase price of such plots to have been $270.00, which had not yet been paid. Appellant asserts that under the evidence the maximum amount of recovery would have been $60.00, that is, the difference between the contract price, to-wit, $135.00 a plot, and the price paid by Dornstin, $165.00 a plot.

The jury’s finding in answer to Special Issue No. 1 is not supported by the evidence and is clearly erroneous. While the trial court did order a remittitur in the amount of $1,750.00, there is no showing as to what proportion, if any, is attributable to the damages found under Special Issue No. 1, and what portion is attributable to the damages found under Special Issue No. 3, and the remittitur does not cure such error. In our opinion, such error requires a remand for a new trial, and in view of such remand, we do not deem it necessary to pass on the other assignments of error of appellant, or the cross-assignment of error of appellees.

The judgment of the trial court is reversed and the cause remanded for a new trial.


author: McDONALD, Chief Justice.

text:
    Bettie Ann SATTERWHITE, Appellant, v. A. W. WEEDN, Appellee.
    No. 4635.
    Court of Civil Appeals of Texas. Waco.
    May 4, 1967.

      Kamp, Laswell & Howard, T. Turner Pope, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Royce R. Till, Houston, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a judgment for defendant entered on instructed verdict.

Plaintiff Satterwhite sued defendant Weedn, a veterinarian, for damages allegedly caused by negligent treatment of plaintiff’s dog. Plaintiff’s suit was filed on August 8, 1964, and alleged defendant guilty of negligent conduct in treatment of the dog occurring “on or about the 26th day of August, 1962.”

Defendant plead the two year Statute of Limitation as a defense. At the conclusion of plaintiff’s evidence, defendant moved for instructed verdict on the ground that the suit was barred by the two year Statute of Limitation, in that suit was filed on August 8, 1964, and the date of defendant’s treatment for which suit was brought was July 28, 1962.

The trial court granted such motion, instructed the jury to return verdict for defendant, and entered judgment on such verdict that plaintiff take nothing.

Plaintiff appeals, contending the trial court erred in granting defendant’s motion for instructed verdict, for the reason there was evidence of probative force sufficient to raise a fact issue, as to whether defendant treated plaintiff’s dog on August 26th and 27th as alleged by plaintiff, or on July 26th and 27th.

Plaintiff testified on direct examination she took her dog Freída to defendant’s veterinary clinic on August 28, 1962 to have a rabies shot and a bath. When she went to pick up the animal it appeared to be sick, and defendant told her the dog had been put out in the sun to dry, stayed too long, and had a sunstroke. Plaintiff left the dog with defendant overnight and finally picked it up the next day and carried it to Dr. Knight, a veterinarian for treatment of the sunstroke. On cross examination plaintiff admitted her memory after four years “could be rusty”; and, “it is possible the date could have been July 28th,” and she was “not really sure if it was August or July.”

Plaintiff introduced a letter to her from defendant, expressing regret over the treatment his clinic gave the dog. Such letter was dated July 31, 1962. The records of defendant’s veterinary clinic reflect plaintiff’s dog Freída was vaccinated for rabies on July 28, 1962; and Dr. Knight, who saw plaintiff’s dog within two days after the alleged mistreatment by defendant, testified he first saw the dog on July 30, 1962, and that his office records so reflected.

Based on the foregoing, the trial court concluded that reasonable minds could not differ but that defendant’s treatment of the dog occurred on July 28, 1962 — rather than August 28, 1962; — and hence plaintiff’s case was barred by limitation.

An instructed verdict is warranted only when the evidence is such that no other verdict should be rendered. If there is any conflicting evidence in the record of a probative nature, a determination of the issue is for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425.

But it is the duty of the Court to instruct a verdict, though there be slight testimony, if its probative force is so weak that it only raises a mere surmise or suspicion of the existence of the facts sought to be established, such testimony, in legal contemplation, falling short or being “any evidence.” Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063; 56 Tex.Jur.2d p. 553.

We think that the evidence is of such conclusive character that the occurrence complained of took place on July 28, 1962 rather than August 28, 1962, that reasonable minds cannot differ; and that the instructed verdict was proper.

Plaintiff’s points and contentions are overruled.

Affirmed.


text:
    The AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellant, v. John Elvin PARKER, Appellee.
    No. 4617.
    Court of Civil Appeals of Texas. Waco.
    April 28, 1967.
    See also 415 S.W.2d 449.

      Bryan & Patton, Chilton Bryan, Houston, for appellant.
    R. F. Evans, Groveton, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

Plaintiff Parker sued defendant Insurance Company in Trinity County, alleging he owned a house in Trinity County 2½ miles north of Groveton, upon which he took out a fire insurance policy with defendant company; that while the policy was in full force and effect the house was totally destroyed by fire; that defendant refused to pay plaintiff under the policy; and prayed for the amount of the policy plus penalty and attorney’s fees. Plaintiff attached a copy of the insurance policy to his petition “being hereto attached and made a part hereof for all purposes.”

Defendant Insurance Company filed its plea of privilege to be sued in Harris County, Texas, the county of its residence.

Plaintiff controverted, alleging venue in Trinity County by virtue of Subdivisions 27 and 28, Article 1995, Vernon’s Ann.Tex.St.

Trial was before the Court without a jury, which, after hearing, overruled defendant’s plea of privilege.

Defendant appeals on six points, contending :

1) There is no evidence, or insufficient evidence, that Subdivision 27 is applicable; and no evidence that all or part of plaintiff’s cause of action arose in Trinity County.
2) There is no evidence, or insufficient evidence, that Subdivision 28 is applicable; and no evidence that the policy sued on was a fire policy, or that the property in Trinity County was covered by a fire policy issued to plaintiff.
Subdivision 27, Article 1995, V.A.T.S. provides: “Foreign corporations * * * doing business within this State, may be sued in any county where the cause of action or a part thereof accrued * *
Subdivision 28, Article 1995, V.A.T.S. provides: “Insurance — Suits against fire * * * insurance companies may also be commenced in any county in which the insured property was situated.”

Plaintiff testified that he owned the house here involved; that it was insured with defendant Insurance Company; that the house burned in Trinity County; that he had filed a lawsuit against defendant in Trinity County and such suit was pending. The record further shows the house to be located two miles north of Groveton. The appellant introduced in evidence without limitation or qualification, plaintiff’s original petition with the insurance policy attached thereto and made a part thereof. Such shows plaintiff to be the insured on a fire policy on a house 2miles north of Groveton in Trinity County, and further shows defendant to be an insurance company of St. Louis, Missouri.

The judgment is correct. Defendant’s points and contentions are overruled.

Affirmed.


author: WILSON, Justice.

text:
    The AMERICAN INSURANCE COMPANY, Appellant, v. John Elvin PARKER, Appellee.
    No. 4616.
    Court of Civil Appeals of Texas. Waco.
    April 28, 1967.
    See also 415 S.W.2d 447.
    Bryan & Patton, Chilton Bryan, Houston, for appellant.
    R. F. Evans, Groveton, for appellee.
   OPINION

WILSON, Justice.

In a suit on a fire insurance policy the insurer appeals from an order overruling its plea of privilege. In the controverting plea the insured relied on Subdivisions 27 and 28 of Art. 1995, Vernon’s Ann.Civ.Stat.

The insurer’s points are that there is no evidence that this suit in Trinity County against a foreign corporation is brought “where the cause of action or a part thereof accrued,” as provided by Subd. 27; or that this is a suit in a county “where the insured property was situated,” or that this is a suit on a fire policy, as provided by Subd. 28.

All insurer’s contentions are answered by Rule 93(h), Texas Rules of Civil Procedure, which prescribes that absent a verified plea of non est factum a written instrument upon which a pleading is founded shall be received in evidence as fully proved. The insurer, having filed no such plea, introduced plaintiff’s petition and the policy sued on in evidence without limitation or restriction. These show that the suit is on a fire insurance policy issued by appellant to appellee describing the insured property involved in the suit as being located in Trinity County; that a fire damaged the insured premises; that appellant is a foreign corporation. In addition the insured testified the insured property was located “approximately two miles north of Grove-ton”, which established the situs as the county of suit. See this court’s opinion in American Automobile Ins. Co. v. Parker, 415 S.W.2d 447, this day decided. Affirmed.


author: LANGDON, Justice.

text:
    J. M. DONALD et al., Appellants, v. Gene BENNETT et al., Appellees.
    No. 16825.
    Court of Civil Appeals of Texas. Fort Worth.
    April 28, 1967.
    Rehearing Denied May 26, 1967.

      Anderson & Connell, and Henry J. Anderson, Wichita Falls, for appellants.
    Nelson, Montgomery & Robertson, and Otis E. Nelson and Ernest Robertson, Wichita Falls, for appellees.
   OPINION

LANGDON, Justice.

This is a suit for monies allegedly owed to the plaintiffs arising out of 73 transactions described and listed in the plaintiffs’ petition filed on February 17, 1965. These 73 items are summarized as follows:

Thirty-six (36) promissory notes, the earliest of which was dated November 6, 1950 and the latest on September 9, 1955. Twenty-nine (29) of the notes were payable on demand. Date of payment was not specified in four (4) of them. Three (3) were made payable in periods of 60 days to 1 year. There were three (3) $40.00 notes listed, one of which was undated. Plaintiffs’ exhibit 1-gg reflects the date as being November 11, 1954. The other two $40.00 notes were likewise among the exhibits.

Twenty-eight (28) checks representing money advanced to defendants, bills paid for them, checks cashed and checks made good. The earliest check was dated January 30, 1952 and the latest in December, 1954.

1 — draft dated May 20, 1950.

1 — I.O.U. dated May 23, 1953.

1 — advancement to third party by wire at instance of defendants on January 5, 1950.

2 — rental items — (not alleged to be in writing) the first was for a period of 24 months at $20.00 per month and allegedly $480.00 has been owed since January 17, 1955. The second item was for 36 months at $75.00 per month. Allegedly $2800 was owed (it figures $2700.00) on which amount interest is allegedly due since 1961. (It is undisputed that the defendants built their own building in Bowie in 1959 and 1960 and have occupied it since that time.)

3 — Items for attorneys’ fees as follows:

“(70) Attorney fee in District Court,. Young Co., Texas. * * * ” A note dated June 2, 1955 contains the notation, “In Young County Case.” (Pltfs’. Ex. 7, S/F 388-A).
“(71) Attorney fees in re Dayton, Ohio case — probation and paying as Court demanded: 3 trips and expenses * * * to Dayton, Ohio, etc.” Item No. 63 includes expenses for Dayton trip in March of 1955 and Item No. 73 reflects that the court matter in Dayton, Ohio was settled in December, 1955.
“(72) Fee (not alleged to be in writing) District Court in Epstein Case as filed in District Court, Montague County, Texas and expenses in going to Bloomington, Illinois etc. for both Bennetts and J. M. Donald”. Item 13 of the June 1, 1962 instrument reads “Fee Epstein case DC Montague and Fed Court (Trips Illinois”. A note dated May 2, 1956 contains the notation, “Fee in Indianapolis matter.” (Pltfs’. Ex. 7)

1 — Account of third party (Item 73, for mud and chemicals used in drilling was settled and interest allegedly is due since January 1, 1956.

By way of summary the 73 items consisted of 36-notes, 28-checks, 1-draft, 1-I.O.U., 1-advancement, 2-rental items, 3-items of attorneys’ fees and 1-account. Each item specified the amount due including interest.

It is undisputed that the relationship or association between the plaintiffs and the defendants terminated about 1956. That after 1956 the transactions between them were limited to the occasional purchase of leases by the defendants from Paul Donald and the Montague Cattle Company, in-which Mr. J. M. Donald had no interest. That after 1956 the defendants were not furnished any money by the plaintiffs.

“Paper payable on demand is due and actionable immediately without demand. "When an instrument specifies no day of payment it is payable on demand and is construed as containing equivalent words on its face.” 9 Tex.Jur.2d 70, § 62, Bills and Notes. The same text p. 71, § 63 states, “A bill or order that expresses no time of payment becomes, on acceptance, due on demand, unless there is some understanding or agreement deferring the due date.” There are rib allegations as to any agreements to defer due dates in the case at bar.

The plaintiffs further alleged that the defendants executed an instrument in writing dated June 1, 1962 in which they acknowledged owing the entire indebtedness sued upon. The instrument referred to consisted of 18 items (listing the amount of money involved including interest) which in effect summarized the 73 items above referred to. Stated another way the indebtedness represented by the seventy-three transactions was the same indebtedness covered by the instrument allegedly executed on June 1, 1962.

The defendants plead the two and four year statute of limitations and denied under oath the signing of the June 1, 1962 instrument.

Each of the 73 items listed in the plaintiffs’ pleadings was offered or tendered into evidence. Each was objected to on the same ground namely that it appears on the face of each such instrument that same is barred by the statute of limitations.

The court sustained the objection to the introduction of the 73 items into evidence and determined as a matter of law that all of such items upon which the plaintiffs’ suit was based and which were offered or tendered into evidence were barred by limitation unless the instrument dated June 1, 1962 allegedly executed by the defendants acknowledging the indebtedness evidenced by such items was effective to toll the statutes under Article 5539, Vernon’s Ann.Tex. Cir.St.

The court stated that the plaintiffs would be entitled to judgment for the entire amount of the indebtedness contained therein if the jury found that the defendants signed the June 1, 1962 agreement and would be entitled to nothing if the jury found to the contrary.

The plaintiffs did not at this point nor elsewhere in the proceedings make any contention nor offer any evidence to the effect that the (73) items or any of same listed in their pleadings were not barred by the statute of limitations. No such contention is made in their brief. Their petition was silent on this point except to reflect that such items on their face were barred by the limitation statutes unless the agreement in question was effective to toll same. There were no bills of exception with attached exhibits contending that one or more of the 73 items was not on its face barred by the statute of limitations.

Defendants denied under oath that they had signed the instrument dated June 1 1962. They did not under oath deny the justness of the 73 items or challenge the June 1, 1962 instrument on the grounds of failure of consideration.

Upon trial to the jury the court submitted a single issue which inquired as to whether or not the defendants signed the instrument of June 1, 1962. The jury answered, “They did not.” Based upon this verdict the trial court entered judgment for defendants. Appellants do not attack the verdict.

We affirm.

This is not a suit on a sworn account supported by affidavit under Rule 185, Texas Rules of Civil Procedure, which would require that the account consisting of the 73 items be taken as prima facie evidence thereof in the absence of a written denial, under oath, stating that such claim is not just or true, in whole or in part.

Rule 93, T.R.C.P. “Certain Pleas To Be Verified” Section (k), requires that a pleading to the effect that an account which is the foundation of the plaintiff’s action and supported by affidavit (emphasis added) is not just shall be verified by affidavit. Thus under these rules it is not necessary to deny under oath the justness of a claim which is not supported by affidavit and failure to do so does not as a matter of law entitle the plaintiff to judgment on such unsworn account.

In suit on Sworn Accounts under Rule 185, supra, “It seems to be well settled that while a defendant, in the absence of a sworn denial of the account as provided in Art. 3736, (supplanted now by Rule 185) may prove that the account has been paid, or that it is barred by limitation, or matters of confession and avoidance, or set up a proper counterclaim, yet he cannot by testimony show that the account is not just or true or lawfully chargeable to him.” Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (San Antonio Civ.App., 1942, error refused, w. m.).

Rule 94, T.R.C.P. “Affirmative Defenses”, which includes statute of limitations, does not require the plea to be verified.

The same rule announced in the Yelton case, supra, would certainly permit the defendants in the case at bar to urge their defense of the two and four year statute of limitations as against the portion of the suit based upon the 73 items.

When the court determined that each of the items was barred by the limitation statutes the plaintiffs had only a single route to pursue and that was on the June 1, 1962 instrument, otherwise they were out of court. They were not confronted with an election of remedies or causes of action but with the choice of being in or out of court.

Appellants’ points 1, 2 and 3 have to do with an exchange of views between one of the plaintiffs while on the witness stand and the court. Rule 418, T.R.C.P., provides that the points contained in appellant’s brief in a jury case must be “germane to one or more assignments of error”. The amended motion for new trial contains no assignment of error or any mention of the matters upon which such points could be based or be germane to. Treme v. Thomas, 161 S.W.2d 124 (Beaumont Civ. App., 1942, no writ hist.) holds, “The points upon which the appeal is predicated, within rule 418(b), must be ‘germane to one or more assignments of error’; to be reviewed, the assignment of error must be advanced in support of a point of error, and must be germane to the point of error.”

Motions for new trial in a jury case constitute assignment of errors to be reviewed by the appellate court. Assignment of error is necessary to entitle a point to be considered on appeal. Bell v. Spraggins, 372 S.W.2d 740 (Amarillo Civ.App., 1963, Ref. n. r. e.); Copeland v. Ogle, 372 S.W.2d 731 (Amarillo Civ.App., 1963, Ref. n. r. e.). The error complained of is not fundamental. See 3 Tex.Jur.2d 462, §§ 188 and 189 and authorities cited.

In our opinion the court did not err in refusing to permit appellants to introduce evidence before the jury as to reasonable attorneys’ fees provided for under Article 2226, V.A.C.S. in suits founded upon sworn accounts or accounts. The appellants’ cause of action was limited to one founded upon the instrument allegedly signed by defendants on June 1, 1962. It contained no provision providing for attorneys’ fees except for those embodied in the various items set forth in the instrument and these items would have been awarded appellants had the jury finding favored them. In view of the trial court’s judgment and our affirmance thereof the matter of attorneys’ fees is a moot question.

The court did not commit error in refusing to permit appellants to introduce into evidence each of the seventy-three items above described or various memorandums in support thereof. Such items would have been admissible on the question of consideration had the defendants denied under oath that the June 1, 1962 instrument upon which the plaintiffs’ case was founded and tried was without consideration or such consideration had failed in whole or in part as provided by Rule 93, T.R.C.P., paragraph (j). The defendants did not set up any such plea. They did deny under oath the execution of the June 1, 1962 instrument upon which the plaintiffs’ pleading was founded as provided by paragraph (h) of Rule 93, supra. The signatures of the plaintiffs which may have appeared upon any of the 73 items were admissible for comparison with the questioned signatures appearing on the June 1, 1962 instrument. The court permitted introduction of the signatures for this purpose. In our opinion this limited purpose introduction was proper since the genuineness of the signatures on such instrument was the sole issue to be determined. Otherwise the contents of the 73 items had no bearing upon the case or any issues to be determined by the jury and thus were not material.

The deposition of the wife of one of the plaintiffs was offered in evidence and was refused. She then was called as a witness by plaintiffs and testified on direct and cross examination as to all matters contained in her deposition. Her deposition would have constituted repetition of her oral testimony.

It should be noted that plaintiffs stated they wanted to put the witness’ deposition on first and then offer her as a witness to give oral testimony. No objection was made by defendants. The court then inquired of plaintiffs’ counsel if he was offering both the deposition and the oral testimony of the witness and counsel answered, “yes sir.” It was not error under the circumstance to refuse admission of the deposition.

The appellants contend that the appellees have not proved limitations, their only defense to the 73 items, because they offered no evidence before the court with reference thereto. Overlooked is the fact that allegations contained in their petition may be considered as admissions on their part and that the court is presumed to have examined the various items offered or tendered into evidence before ruling that same were barred. The record reflects that all of the written instruments were due more than four years and that the claims not based on written instruments were due more than two years before the suit was filed.

See McCormick and Ray, Texas Law of Evidence, Second Edition, Vol. 2, p. 33, Section 1144 to the effect that pleadings in a particular case are to be regarded as formal judicial admissions rather than ordinary admissions. The fact admitted is assumed. See also Section 1127 of same text to effect that this formal judicial admission is really a substitute for evidence. See also Allstate Ins. Co. v. Lay, 265 S.W.2d 203, 208 (Galveston Civ.App., 1954, no writ hist., holding such admission to be evidence of the “highest dignity”); and Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798, 801 (1894), stating that it is not necessary for either party to prove that which is distinctly alleged by the adverse party. That each party could, without reading it as evidence, avail himself of whatever admissions were made in the pleading of his adversary without admitting anything alleged therein favorable to the adversary.

The court did not err in holding as a matter of law that the 73 items enumerated in Paragraph III of the plaintiffs’ petition were barred by the statute of limitation-without any evidence being submitted thereon and in holding as a matter of law that plaintiffs only cause of action was on the June 1, 1962 agreement allegedly signed by defendants.

“If the plea of the statute (limitation) be interposed to a cause of action which appears to be barred, the plaintiff must recover upon the new promise.” Gathright v. Wheat, 70 Tex. 740, 9 S.W. 76.

The case of Coles v. Kelsey, 2 Tex. 541, 542, cited by the Gathright case, supra, in effect held that when an original cause of action on its face appears to be barred by limitations and the plaintiff relies on a subsequent promise to remove the bar, he must allege that promise in his petition as the foundation of his action. The original basis of his cause of action is set out only as a consideration for the subsequent promise. See also Manning v. Christian, 124 Tex. 517, 81 S.W.2d 54 (1935), and Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098, 3 A.L.R. 874, holding that where there is no maintainable action on the original cause of action because of limitations the renewal contract becomes the sole foundation of the suit.

By their 16th point the appellants contend that the trial court erred in overruling each and every one of the 33 assignments of error contained in their amended motion for new trial. The point is too general and is multifarious. Some of the assignments were brought forward and briefed and others were not. We have discussed those which have been briefed. See Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941 (1956); 4 Tex.Jur.2d 159, § 651; Darling v. Panhandle & Santa Fe Ry. Co., 209 S.W.2d 660, 665 (Amarillo Civ.App., 1948, Ref. n. r. e.); Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934, 935 (Amarillo Civ.App., 1966, Ref. n. r. e.).

Not one of the errors, if any, complained of taken singly or collectively amounted to such a denial of the rights of the appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellants from making a proper presentation of the case to the appellate court. Rule 434, T.R.C.P.

All points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


text:
    Manuel ARAMBULA, Appellant, v. J. M. DELLINGER, INC., Appellee.
    No. 14572.
    Court of Civil Appeals of Texas. San Antonio.
    April 12, 1967.
    Rehearing Denied May 10, 1967.

      Utter & Chase, Chas. N. Cartwright, Corpus Christi, Petry & Fitzpatrick, Car-rizo Springs, for appellant.
    Branscomb, Gary, Thomasson & Hall, Richard A. Hall, Corpus Christi, Andrew P. Johnson, Carrizo Springs, for appellee.
   KLINGEMAN, Justice.

This is an appeal from a judgment that Manuel Arambula take nothing in a personal injury suit against J. M. Dellinger, Inc. For purposes of clarity, the parties will be referred to in this opinion as designated in the trial court, Manuel Arambula being the plaintiff and J. M. Dellinger, Inc., the defendant.

Plaintiff was a truck driver for a trucking company, hauling coldmix asphalt from railroad cars in Carrizo Springs, Dimmit County, Texas. Defendant was the owner and operator of a dragline machine unloading the asphalt from such railroad cars and placing it in trucks of plaintiff’s employer. While loading operations were temporarily ceased, and the motor of the dragline machine was idling, plaintiff went between the dragline machine and a railroad car to get a drink of water from a water can located at the side of the dragline machine. While plaintiff was drinking water the dragline machine swung sideways in such a manner that the cab of the drag-line machine pinned plaintiff against the railroad car and injured him.

Trial was before a jury, and in such trial plaintiff presented only one witness, the plaintiff, together with certain exhibits and medical records, and then rested. Defendant then filed a written motion for instructed verdict, contending that there was no evidence which raised a fact issue of any negligence on the part of defendant; that there was no evidence to raise a fact issue on plaintiff’s claim of right to recover under the doctrine of res ipsa loquitur; that there was no evidence of discovered peril; that as a matter of law plaintiff was not more than a mere licensee; that defendant owed no duty to plaintiff which was breached; and that the evidence established, as a matter of law, that plaintiff was guilty of contributory negligence. The trial court granted defendant’s motion for instructed verdict, discharged the jury, and entered a take-nothing judgment.

Since this is an instructed verdict case, full credit must be given to all evidence favorable to the plaintiff, every legitimate conclusion favorable to him indulged, and all conflicting evidence disregarded. 3 McDonald, Texas Civil Practice, §§ 11, 28, 1032; Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; White v. White, 141 Tex. 328, 172 S.W.2d 295; Bryant v. Hamlin, Tex.Civ.App., 373 S.W.2d 837, writ ref’d n. r. e.

The evidence does not establish as a matter of law that plaintiff was not more than a mere licensee, and that defendant owed him no duty other than the duties owed to a licensee. The evidence showed that a part of plaintiff’s job was to go on or about the premises where the accident occurred to pick up asphalt that was being unloaded from railroad cars; that on the day the accident happened he had already picked up one load, and had returned to pick up another load pursuant to his duties. The evidence further showed that the truck drivers on various occasions drank water from the water can where plaintiff was drinking at the time of the accident, and that plaintiff had done so on a number of previous occasions; that immediately before the accident one of defendant’s employees was drinking water there, and that the cup from which plaintiff was drinking at the time of the accident was handed to him by one of defendant’s employees. There is no evidence in the record as to who owned the premises where the accident occurred, and, on the face of it, plaintiff had as much right to be on or about the premises as defendant.

A person rightfully on the premises has the right to require that even the proprietor so conduct himself as not to injure such person through his active negligence. 40 Tex.Jur.2d, Negligence, § 68 (1962). The determination of whether a person is a licensee or an invitee is dependent upon the facts and circumstances surrounding a particular case, and such facts and circumstances, sometimes involve matters of custom, whether it is to the mutual advantage of both the occupier of the premises and the person entering thereon for such person to be on the premises, whether the conduct of defendant and his employees was such as to amount to an implied invitation, and other matters. The evidence in the case before us at least raised a fact' issue as to whether plaintiff was an invitee, a licensee, or a trespasser. The extent of duty owed by defendant to plaintiff is dependent on which status plaintiff enjoyed, and also to an extent on the foreseeability of the accident which occurred, and it is our opinion that the evidence raised a fact issue as to these matters.

Defendant also contends that plaintiff was negligent as a matter of law in failing to keep a proper lookout, in failing to listen, as a person of ordinary prudence would have listened, under the same or similar circumstances, and in positioning himself between the dragline and railroad car to obtain a drink. There is no evidence in the record that plaintiff saw or could have seen anything which would warn him that the machine was about to crush him, nor is there any evidence that any type of warning was ever given. As to the position that the plaintiff was in, the evidence showed that plaintiff, as well as other truck drivers on various occasions drank water from the same water can, at the same location, and that immediately prior to the accident defendant’s employee was drinking water from such can and even handed plaintiff the cup from which he was drinking.

Ordinarily, contributory negligence is a question of fact for the jury’s determination. City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref’d n. r. e.; Lane v. Dallas Transit Co., Tex. Civ.App., 331 S.W.2d 821, writ ref’d n. r. e.; Skyline Cab Co. v. Bradley, Tex.Civ.App., 325 S.W.2d 176, writ ref’d n. r. e.; Longacre v. Reddick, Tex.Civ.App., 215 S.W.2d 404, no writ; 40 Tex.Jur.2d, Negligence, § 161 (1962). The Supreme Court in Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227, said: “According to the rule in this court, in order that an act shall be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it.” We do not find from the evidence in this case that plaintiff was contributorily negligent as a matter of law, or that there was no fact issue on contributory negligence to go to the jury.

Plaintiff’s basic contentions on appeal are that the trial court erred in granting defendant’s motion for instructed verdict and removing the case from the jury, because plaintiff’s evidence affirmatively raised issues of fact which showed a prima facie case of negligence on the part of defendant, and that plaintiff’s evidence affirmatively raised issues of fact sufficient to present a prima facie case under the doctrine of res ipsa loquitur. Plaintiff pleaded various specific acts of negligence, including lookout, failed to warn, proper control, failure to keep machine in safe operating condition, placing said dragline machine too close to the railroad for safe operation at the time and place in question, and, in the alternative, the doctrine of res ipsa loquitur. The evidence does not definitely disclose whether one of defendant’s employees was manipulating the machine at the time of the accident, whether such machine moved on its own accord, or just what caused it to move. The evidence does show that one of defendant’s employees, a signalman who ordinarily signaled when the dragline machine was picking up asphalt, handed plaintiff the cup out of which he was drinking immediately prior to the accident, and was talking to him at the time of the accident, but that no one warned plaintiff of any movement of the machine, yelled at him, or gave him any type of warning. The evidence also shows that some type of repair work was being done on such machine immediately prior to the accident, that the motor of the dragline machine was idling, and that plaintiff heard no speeding up or acceleration of the motor. The evidence also shows that the dragline machine was located in close proximity to the railroad car, a distance of about 3½ or 4 feet, with the water supply in this narrow space between the dragline machine and the railroad car, a distance so close that when the dragline machine was rotated in a manner opposite to the direction it normally moved in picking up asphalt it could and did pin a man standing in such narrow space against the railroad car.

Whether a given set of facts constitutes negligence is usually a question of fact for the jury. Gregory v. City of Garland, Tex.Civ.App., 333 S.W.2d 869, writ ref’d n. r. e.; Ambrose & Company v. Booth, Tex.Civ.App., 301 S.W.2d 223, writ ref’d n. r. e.; Watts v. Dallas Ry. & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref’d n. r. e.; Rial v. Curtis, Tex.Civ.App., 274 S.W.2d 117, writ ref’d n. r. e.; 40 Tex.Jur.2d, Negligence, § 160 (1962). Where circumstances are such that reasonable minds may logically draw either an inference of actionable negligence or its absence, the issue is one of fact for the jury, and not one of law for the court. Davis Transport, Inc. v. Bolstad, Tex.Civ.App., 295 S.W.2d 941, no writ; Texas Emp. Ins. Ass’n v. Texas Compress Co., Tex.Civ.App., 284 S.W.2d 922, writ ref’d n. r. e.; Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Comm’n App.1919).

From a consideration of all the evidence, we feel that the evidence sufficiently presented issues of fact on one or more of plaintiff’s negligence allegations to require a submission to the jury. In view of a remand, we do not deem it necessary to discuss or pass on plaintiff’s complaint of error under the doctrine of res ipsa loquitur.

The judgment of the trial court is reversed and the cause remanded for a new trial.


author: HUGHES, Justice.

text:
    Luisa BRIONES et vir, Appellants, v. LEVINE’S, INC., Appellee.
    No. 11476.
    Court of Civil Appeals of Texas. Austin.
    May 17, 1967.
    Rehearing Denied June 7, 1967.

      J. Hubert Lee, Warner A. Hancock, Austin, for appellants.
    Clark, Thomas, Harris, Denius & Winters, John Coates, John Goldsum, Austin, for appellee.
   HUGHES, Justice.

This is a summary judgment case in which the trial court rendered a take nothing judgment against Mrs. Luisa Briones and her husband, Samuel Briones, in her suit against Levine’s, Inc., appellee, for damages for injuries sustained in a fall in Levine’s store, in April 1964, in Austin, Texas.

Viewing the evidence in a light most favorable to Mrs. Briones, as we are required to do, it is our opinion that genuine material issues of fact exist which preclude the rendition of a summary judgment.

Mrs. Briones was a customer in appellee’s store. She was accompanied by her four year old daughter for whom she was shopping for a birthday present. The time was about noon. Appellee’s store was well lighted. Mrs. Briones had in mind buying playwear or shorts for her daughter. She examined the goods on display on one table and not finding what she wanted went to a second table being preceded and shown the way by a saleslady of Levine’s, Mrs. Janie Lagunas. Mrs. Briones testified to their positions at the second table as follows:

“She stopped on one side of the table, other side of the corner of the table, and I stopped on the other, and when she got the clothes that I gave her, that I had selected, she took them and then she went between me and the table, and that is when I had to step back.”

In stepping back, Mrs. Briones came in contact with a lawnmower which was on the floor being displayed for sale. She fell on the lawnmower and in falling brought down racks of clothes which were standing nearby.

The custom in Levine’s was that when merchandise was selected for purchase by the customer it was handed to the salesperson who carried it to the cash register where the merchandise and a sales slip were given to the cashier by the salesperson. This is perhaps the reason for Mrs. Lagunas walking by and in front of Mrs. Briones on the way to the cashier.

Mrs. Briones gave this testimony:

“Q Well, as you walked down that aisle, in the area that I am pointing at now, and I will put a red X there, as you got even with this red X, you were — you were even with the lawnmower, were you not? You were even with where the lawnmower was setting on the floor, weren’t you?
A I could not see it, because there were many things in between and around the machine, and I just went straight to the table.
Q What was between where I have drawn this, here, and the lawnmower ? What was in between that, to keep you from seeing the lawnmower ?
A Hanging clothes, dresses.
* * * * * *
Q What was — Can you estimate the distance in feet, there was between the edge of the table here, and this clothes rack that you came in between, how many feet? How many feet was there for passage-way where you have drawn the red line, here?
A Enough for one person to go through That is why she was leading the way, and I was following her.
⅝ ⅝ ⅜ ‡ ⅜ ⅝
Q As you walked past the corner of the table here, along the red line that you have drawn — I am going to draw an arrow and point it like so. Now, was that the direction — is that the direction you were facing as you walked past the corner of the table, between the table and the rack which you have drawn in, is that the direction you were facing as you walked past?
A Yes.
Q All right. And, the lawnmower was right in this area, is that right ?
A Yes.
Q Now, what was the distance from the table, where you have drawn these two lines, two short parallel lines, on top of the table, what was the distance from the edge of the table here, to where you walked to back to the mower, can you say in feet, distance in feet?
A I just gave one step backwards and •hit it.
Q Ask her how many feet from the edge of the table.
A I don’t know, because I just stepped back so that the clerk could go in front of me, and I hit it.
Q Now, from that table, what was the distance to the lawnmower?
A I only took one step backwards, and that is when I fell and I knocked down the clothes rack.
Q Where was the clothes rack, behind the lawnmower?
A. Yes.
Q How far was it behind the lawnmower, what distance was it behind the lawnmower?
A I do not know, because it was all knocked down, because I knocked it all down.”

We believe the narrowness of the aisle and the proximity of racks of clothes prevent the legal conclusion that Mrs. Briones saw the lawnmower and fully appreciated the danger of falling over it or that, as a matter of law, she is charged with knowledge of such facts. These same facts are evidence of a dangerous condition not open and obvious concerning which appellee should have taken reasonable precautions to protect Mrs. Briones from harm.

We are also of the opinion that the conduct or action on the part of Mrs. La-gunas in passing between the table and Mrs. Briones causing her to step back and hit the lawnmower is some evidence of negligence of appellee, and that such negligence was a proximate cause of her injuries.

The judgment of the trial court is reversed and this cause is remanded for trial.

Reversed and remanded.


author: DIXON, Chief Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Helen F. BLAIN et al., Appellees.
    No. 16893.
    Court of Civil Appeals of Texas. Dallas.
    April 14, 1967.
    Rehearing Denied May 19, 1967.

      J. W. Dewbre and Thomas G. Nash, Jr., Curtis White, of Johnson, Guthrie, White & Stanfield, Dallas, for appellant.
    Jack Y. Hardee, of Fields, Fields & Har-dee, Athens, for appellees.
   DIXON, Chief Justice.

Republic National Life Insurance Company, hereinafter called Republic, has appealed from a summary judgment against it for the sum of $7,600, being $5,000 death benefits, 12 per cent penalty and $2,000 attorney’s fee under a group policy and a certificate on the life of Allen J. Blain, deceased.

On January 1, 1948 Republic issued its group policy of life insurance No. 284 to Texas Public Employees Association, hereinafter called T.P.E.A. Coverage was made available to all eligible members of T.P.E.A. This group policy continued in force and effect through December 31, 1964.

Blain had been an employee of Texas State Hospital at Terrell, Texas. There is no question that for a number of years many of the employees of the Hospital, including Blain, were insured under Republic’s group policy No. 284 issued to T.P.E.A. Blain had been issued certificate No. 37011.

On November 30, 1963 Blain suffered a serious heart attack and retired as an active employee of the Hospital. Republic’s group policy covered retired employees and contained a provision for extended coverage of insurance and waiver of payment of premiums during total disability. On February 18, 1964 Republic accepted Blain as being totally disabled and informed him that his life insurance had been extended and payment of premiums waived during his total disability as provided in policy No. 284.

On February 6, 1964 Republic amended its master policy No. 284 with T.P.E.A. The policy amendment was submitted to the Commissioner of Insurance, was stamped “Approved by Order No. 15494 Feb. 7, 1964, Commissioner of Insurance, State of Texas,” and became a part of the policy on February 7, 1964. Material parts of this amendment are copied later in this opinion.

In April 1964 a majority of the employees of the Hospital voted to change and did change the Hospital group coverage from the T.P.E.A. program under Republic’s policy No. 284 to group coverage under a policy offered to them by National Bankers Life Insurance Company, hereinafter called National.

On May 6, 1964 the business manager of the Hospital signed a certificate that the Hospital had a group insurance program in effect on that date providing coverage for “Active and Retired Employees of this Department”; that the insurance carrier was National and that Blain was eligible for benefits under the policy. On the same date Blain signed a written authorization to the State Employees Retirement System (not to be confused with T.P.E.A.) directing that group insurance premium payments to Republic be discontinued and that deductions in the future be paid to National, the cancellation to become effective May 31, 1964.

On July 31, 1964 Republic wrote a letter informing Blain that pursuant to the amendment of February 7, 1964 his insurance coverage had been cancelled as of May 1, 1964. This letter was as follows:

“You were notified by us on February 18, 1964 that your application had been approved for waiver of premium on your life insurance coverage under policy number 284, issued to the Texas Public Employees Association.
“This policy was amended to provide that effective May 1, 1964, and thereafter, insurance for retired personnel would be terminated in the event the unit from which an individual retired adopted a formal program of insurance and certain minimum enrollment was not maintained. Since your eligibility for insurance has terminated in accordance with this provision, there is no longer a necessity for waiver of premium.”

Blain replied to the above letter protesting the cancellation of his life insurance coverage. He also wrote a letter of protest to the Commissioner of Insurance at Austin. Republic wrote additional letters on August 7, 1964 and August 24 reiterating that Blain’s insurance had been cancelled.

On October 6, 1964 Blain returned to work for the Hospital. The State Retirement Claims Officer on November 4, 1964 notified Blain that his group insurance premium to National had been deducted from his September retirement benefits for the month of October, but in view of the ter-, mination of his disability and his return to work on October 6, 1964 payments would not thereafter be deducted. In the letter Blain was advised to make arrangements for his coverage with National as an active employee of the Hospital.

Copies of Blain’s cancelled payroll check from the State Comptroller’s office for October in the amount of $159.53 and the cancelled check for $175.72 are a part of the record before us. Appellant says they confirm the fact that Blain had resumed work for “compensation and profit” on October 6, 1964.

On November 30, 1964 Blain died.

The suit against Republic was filed March 19, 1965 by appellee Helen F. Blain, widow of the deceased and the named beneficiary in certificate No. 37011. However, on March 22, 1965 Helen F. Blain filed a separate suit, this one against National under the group policy issued by National, which she alleges included coverage or at least should have included coverage on the life of her husband.

In her petition in her suit against National Mrs. Blain alleges that in April 1964 at a meeting of employees of the Hospital, which meeting she and her husband attended, the agent and representative of National represented orally and in writing that if the employees would change their group coverage from Republic to National no one would suffer loss of any benefit or eligibility due to the change; and that the case of her husband was specifically mentioned, National’s agent being informed that Blain at the time had a waiver of premiums on disability in effect with Republic.

Mrs. Blain further alleged in her petition against National that at the above meeting National distributed a printed pamphlet urging the Hospital employees to change their group life insurance coverage from Republic to National. The pamphlet contained this paragraph:

“6. NABLICO guarantees that no one will suffer loss of any benefit or eligibility due to change from TPEA coverage to NABLICO coverage.”

It was at this meeting that the employees voted to make the change in coverage from Republic to National.

Appellee does not claim that she is entitled to recover from both insurance companies.

Prior to the trial of this case Republic filed a motion to consolidate the two causes of action so that it could be determined in one trial which of the two insurance companies is liable. National filed an answer contesting the motion. The motion was overruled. Trial proceeded in the suit against Republic alone with the result that judgment was rendered against Republic from which this appeal has been taken. So far as the record shows the separate suit against National is still pending.

PROVISIONS OF GROUP POLICY NO. 284

The master policy, group policy No. 284, issued to T.P.E.A. by Republic contained these provisions :

“ * * * this the 1st day of January 1948, the Effective Date of this Contract, and the date from which all Contract months and years shall be calculated.1’ (Emphasis ours.)
“Termination of Individual Insurance— * * * The Insurance on any Employee insured hereunder shall automatically cease thirty-one days after the due date of any premium for which Employee fails to make the required contribution.” (Emphasis ours.)
“Extended Insurance On Disability— If at the time of discontinuance of premium payments for an Employee’s insurance, such Employee while under age 60, is totally disabled from bodily injury or disease which prevents engagement in any occupation for compensation or profit, the insurance will be extended, without payment of premiums, during the continuance of such total disability for a period not to exceed twelve months.
* * * * * *
“If the Employee ceases to be so disabled and is then eligible for insurance under the Policy, insurance will be continued only if premium payments are resumed. If the Employee ceases to be so disabled and is not then eligible for insurance under the Policy, the insurance will automatically cease thirty-one days thereafter. * * * ”
“Premium charge for insurance on new Employees and for increases caused by change in classification shall begin on the first day of the next Contract month after new Employee becomes eligible or after such change in classification occurs.” (Emphasis ours.)

The amendment of February 7, 1964 to policy No. 284 was as follows:

“Effective May 1, 1964 persons now insured or who may subsequently become insured as retired persons under this group may be eligible for coverage or to continue coverage provided the State Agency or segment thereof from which they retired from active employment has not adopted a formal group insurance program other than the T.P.E.A. Program and provided the percentage of participants of the active employees eligible for coverage in that agency or segment thereof is not less than 75 per cent of those persons eligible to participate as of January 1, 1963. The number of active persons actually insured as of January 1, 1963, in any agency or segment thereof will for these purposes be considered as 100 per cent of those eligible to participate. Insurance shall cease at the end of the month during which eligibility ceases.
“All other provisions contained in said group contract, or amendments or endorsements thereto, not in conflict herewith shall remain unaltered and unchanged.” (Emphasis ours.)

CERTIFICATE NO. 37011 issued to Blain under group policy No. 284 contained these provisions:

“Termination of Insurance — Insurance hereunder will terminate under any one of the following conditions at the time stated.
“1. Upon termination of the Group Policy.
“2. Thirty-one days after the end of the period for which premiums have been paid, if employee fails to make required contribution toward payment for the insurance.”

OPINION

Appellant Republic summarizes its position as follows:

“* * * (i) ⅛6 policy and certificate as to Allen J. Blain were not in effect on November 30, 1964, the date of Blain’s death, Blain’s employer having cancelled the policy in May, 1964 by taking out another policy with National Bankers Life Insurance Company; and (2) because, in the alternative, Blain, having returned to his employment before his death, was no longer totally disabled, within the meaning of the Premium Waiver clause in the policy, and said policy and certificate attempted to be sued upon had lapsed for nonpayment of premiums.”

Appellant did not file a motion for summary judgment. On this appeal it takes the position that it was error to render summary judgment for appellee, therefore the judgment should be reversed and the cause remanded for trial.

Appellant rests its appeal on eight points of error. It contends that the trial court erred in sustaining appellee’s motion for summary judgment and rendering judgment because (1) there was a genuine issue of fact as to whether prior to the death of Allen J. Blain appellant Republic’s policy and certificate had been cancelled and replaced by those issued by National; (2) whether Allen J. Blain consented to or ratified the cancellation of Republic’s policy and accepted the promise of coverage by the policy of National were material issues of fact; (3) regardless of whether Republic’s policy and certificate had been cancelled prior to Blain’s death there was a material fact question as to whether the insurance with Republic had lapsed because of nonpayment of premiums; (4) there was a fact issue as to whether appellee was estopped to deny that Blain’s coverage with Republic had terminated before his death; (5) there is a material fact issue as to whether Blain was totally disabled from bodily injury or disease which prevented him from engaging in any occupation for compensation or profit in October and November 1964; (6) it was error to overrule Republic’s motion to consolidate this cause with appellee’s suit pending in the same court against National; (7) the motion for summary judgment is founded in part on an affidavit said to be executed by a party whose name is not specified, which said affidavit was never furnished to appellant or filed with the papers in the cause; and (8) there was a material issue of fact as to whether the $2,000 attorney’s fee allowed by the court was a reasonable fee.

Appellant admits that its master group policy No. 284 issued to T.P.E.A. was in force and effect at all times from November 30, 1963 through December 31, 1964. This controversy primarily concerns the status of certificate No. 37011 issued to Blain under the terms of the group policy. Appellant contends that Blain’s certificate No. 37011 had lapsed due to failure to pay premiums and had been cancelled on other grounds prior to Blain’s death on November 30, 1964.

We do not agree with appellant that Blain’s certificate No. 37011 had lapsed due to failure to pay premiums. It is not disputed that Blain was totally disabled from November 30, 1963 to October 6, 1964, the latter being the date when he returned to work at the Hospital. If we accept October 6, 1964 as the date when his total disability ceased and his right to waiver of premium payments came to an- end, the “due date” for the first of his resumed premium payments was November 1, 1964. He did not make this payment on November 1, 1964. But under the terms of the policy and certificate No. 37011 he was entitled to a grace period of thirty-one days after the “due date” before his coverage lapsed for failure to make the monthly premium payment. His death occurred November 30, 1964, which was within the thirty-one day grace period.

Appellant contends that if Blain’s total disability ceased on October 6, 1964 his certificate lapsed for failure to pay his monthly premium because the thirty-one day grace period began running against him on October 6, 1964. As indicated above, we do not agree with this contention.

Appellant says that there is a fact question as to whether 'Blain’s disability ended on October 6, 1964 or later. The mere fact that he did go back to work on October 6, 1964 or at least he tried to, does not necessarily mean that he was really able and in condition to engage “in any occupation for compensation or profit” within the terms of the policy. In Occidental Life Ins. Co. v. Duncan, 404 S.W.2d 52 (Tex.Civ.App., San Antonio, 1966, no writ), in construing a provision similar to the one here involved it was held that total disability does not mean absolute physical inability to perform any of the duties pertaining to his occupation. It is appellant’s position that in order to prevail appellee would have to obtain a fact finding that Blain’s total disability continued on past October 6, 1964 to some date within thirty-one days of November 30, 1964 when Blain died. Appellee’s position is that there is no fact issue because even if we accept appellant’s claim that total disability ended on October 6, 1964 the coverage afforded by certificate No. 37011 had not lapsed for failure to pay premiums at the time of Blain’s death. We agree with ap-pellee.

Appellant claims that Blain’s certificate of coverage was automatically can-celled May 1, 1964 under the terms of the amendment to policy No. 284 when the employees of the Hospital “splintered off” from the T.P.E.A. coverage afforded by policy No. 284 and obtained coverage under the terms of a group policy issued to the Hospital by National.

Again we do not agree with appellant. When Blain retired due to total disability-on November 30, 1963 and his total disability was accepted by Republic on February 18, 1964 and payment of premiums was waived, Blain’s rights under the master policy and under his certificate became vested. Republic could not deprive Blain of his coverage by invoking the terms of an amendment to policy No. 284 which was approved February 7, 1964 (subsequent to Blain’s retirement), which amendment under its own terms did not go into effect until May 1, 1964 (subsequent to Republic’s acceptance and acknowledgment of Blain’s total disability). Republic could not cancel Blain’s coverage during the extension period because the Hospital employees had “splintered off” from T.P.E.A.’s group policy coverage.

The provision on which appellee relies is much more than a mere waiver of the payment of premiums. It is expressly captioned “Extended Insurance on Disability”. It is true that this “Extended Insurance” is “without payment of premiums,” but the latter provision is part of the “Extended Insurance on Disability” provision and its terms.

At first glance it might seem that Blain had agreed to the abrogation of his retirement, disability and waiver-of-premium rights under his certificate No. 37011 with Republic by signing the authorization of May 6, 1964. By this instrument he directed the State Employees Retirement System (not T.P.E.A.) to discontinue as of May 31, 1964 deduction of monthly premium payments for his insurance with Republic and thenceforth to deduct monthly premium payments for his group insurance with National. On closer examination of the situation we have concluded that the document cannot be construed as an agreement or consent by Blain to the abrogation of his vested rights under his certificate No. 37011 with Republic. We have come to this conclusion for these reasons:

(1) The authorization was not directed either to Republic or T.P.E.A. and did not authorize either of them to cancel his existing retirement disability, or waiver-of-premium rights under group policy No. 284 or certificate No. 37011. It was directed only to the State Employees Retirement System in regard to the payment of future premium payments. This was a transaction between the Retirement System and Blain to which T.P.E.A. and Republic were not parties.

(2) It expressly directed the System to discontinue deduction for premium payments to Republic. This was not inconsistent with Blain’s vested rights under Republic’s policy, for it is undisputed that at that time he was under no obligation to make any premium payments to Republic. He was admittedly on a disability retirement and his insurance coverage had been extended without payment of premiums.

(3) At the time Blain signed the authorization Blain had not yet been informed by Republic by its letter of July 3, 1964 that it claimed that Blain’s coverage had been cancelled as of May 1, 1964 pursuant to the amendment to policy No. 284, of which amendment Republic does not claim it had given Blain any prior notice.

Appellant’s first, second, third and fifth points are overruled.

Under the circumstances we see no fact issue of estoppel because appellee filed a suit against National for recovery of alleged life insurance benefits. Republic had already claimed cancellation of Blain’s coverage and denied liability long before appellee filed suit against National. The subsequent filing of said suit against National could not have led Republic to change its position into a denial of appellee’s claim. Republic admits that appellee had made request for papers necessary to be used in making a claim for death benefits which request Republic had already refused on the ground that the policy was not in force. Appellant’s fourth point is overruled.

We do not consider that it was reversible error for the court to overrule appellant’s motion to consolidate the suits filed by appellee against Republic and National. Rules 37-43, 94 and 174, Vernon’s Texas Rules of Civil Procedure, bestow a broad discretionary power on courts in the matter of consolidation of causes. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588, 591; Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438. We cannot say that there was an abuse of discretion in this case. The sixth point is overruled.

In her motion for summary judgment appellee refers to pleadings, defendant’s answers to plaintiff’s interrogatories including exhibits attached thereto “and the affidavit of_.” The record contains no such affidavit. Appellee says that the above quoted reference to an affidavit was merely a clerical error. In any event the absence of such affidavit is harmless error. The court’s judgment recites that the court considered “all the pleadings on file together with the aforesaid interrogatories and answers thereto and the aforesaid briefs of the parties * * The court does not say that it considered any affidavit. In our opinion the pleadings, answers and exhibits were sufficient to support summary judgment. The seventh point is overruled.

The court undertook to make a finding that $2,000 was a reasonable attorney fee. Appellee concedes that this was error. Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901 (Tex.Sup.1966). Appellant’s eighth point is sustained. Pursuant to the holding in the above cited case, this judgment must be reversed insofar as it awards recovery of $2,000 attorney fees. However, the claim for attorney fees is severable. Accordingly, we reverse the judgment as to attorney fees only and remand it for new trial. The remainder of the judgment is affirmed.

Reversed and remanded in part and affirmed in part.

      . The written authorization signed by Blain was as follows:
      “(TO BE COMPLETED BY RETIRED MEMBER)
      “I hereby direct the State Employees Retirement System to discontinue deduction for Group Insurance Premium with the Republic National Life Insurance Company of Dallas, Texas under group program and contract with the Texas Public Employees Association. This cancellation shall become effective May 31, 1964.
      “I hereby authorize the State Employees Retirement System to deduct from my monthly annuity, effective June 1, 1964, monthly premiums for my group insurance with National Bankers Life Insurance Company, Certificate (Name of Insurance Company)
      No. 37011, and covered under group insurance program and contract with the Terrell State Hospital, as certified to above. (Name of Department)
      “5-6-64_ “Allen J. Blain_
      “(Date Signed) “Signature of Retired Member
      “Box 213_
      “Street and Number
      “Terrell, Texas 75160
      “City and State”

      . In its Reply to Appellee’s Brief appellant calls our attention to Art. 3.50, Sec. 1, par. (1) (b) of the Insurance Code, V. A.T.S. which provides that no group policy shall be delivered in this state or may be placed in force where part of the premium is paid by the employees unless at least 75% of the eligible employees elect to make the required contributions. Appellant says that the amendment to poliey No. 284 “was placed upon the policy in obedience to” the above statutory requirement.
      The statute pertains to the delivery or placing in force of a policy. It nowhere says that after a policy has been duly and legally delivered and placed in force and after rights of an insured have become fixed and vested under such a valid policy, it may be cancelled without notice if the number of contributors falls below 75% of the eligible employees.


author: BATEMAN, Justice.

text:
    NORTH TEXAS LUMBER COMPANY, Appellant, v. Henry N. KASPAR, Appellee.
    No. 16902.
    Court of Civil Appeals of Texas. Dallas.
    April 14, 1967.
    Rehearing Denied May 19, 1967.

      Arthur M. Albin, of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellant.
    Carl Abramson of, Herndon, Abramson & Shwiff, Dallas, for appellee.
   BATEMAN, Justice.

The appellant North Texas Lumber Company sued Charles L. Sherwood, Jr. and Henry N. Kaspar for debt, alleging that the defendants were partners or joint ven-turers trading as Postscript Homes or, alternatively, that they were estopped to deny that they were liable as partners or joint venturers. Appellant also sued for an attorney’s fee pursuant to Vernon’s Ann.Civ.St, Art. 2226. The jury returned a verdict in response to special issues, as follows: (1) they did not find from a preponderance of the evidence that Postscript Homes was a partnership consisting of Sherwood and Kaspar; but (2) Sherwood and Kaspar were engaged in a joint venture under the name of Postscript Homes; and (3) a reasonable fee for the plaintiff’s attorney would be $500.

The court rendered judgment against Sherwood for the amount sued for, including an attorney’s fee of $500. Sherwood did not appeal. The court sustained Kas-par’s motion to disregard the answers of the jury to Special Issues Nos. 2 and 3 and rendered judgment non obstante veredicto that appellant take nothing from the ap-pellee, Kaspar. Appellant appeals on four points of error.

By its first point, appellant says the court erred in disregarding the answer to Special Issue No. 2 because there was at least some evidence to support the finding of joint venture.

Rule 301, Texas Rules of Civil Procedure, authorizes a judgment non ob-stante veredicto if a directed verdict would have been proper, and the disregarding of a jury finding that has no support in the evidence. In reviewing this action of the trial court, we must consider all the testimony in the record from the standpoint most favorable to appellant, indulging in its favor every reasonable intendment deducible from the evidence; and to sustain the court’s action it must be determined that there is no evidence having probative force upon which the jury could have made the finding in question. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199; Lynch v. Ricketts, Tex.Civ.App., 306 S.W.2d 410, 413, reformed and affirmed 158 Tex. 487, 314 S.W.2d 273; Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547.

Having searched the record carefully with these rules in mind, we have concluded that the trial court was correct in ruling that there was no evidence of probative value to support the finding. The appellant had had prior unsatisfactory credit experience with the defendant Sherwood, but did open an account in the name of Postscript Homes for him when he informed appellant that he and the appellee were “building some houses together” and would be partners in the house building business. Appellant’s manager attempted to verify this information by calling appellee over telephone but did not talk to him. He was informed over telephone by a woman who said she was appellee’s bookkeeper that Sherwood and appellee were partners in the business but that statements of the account should be mailed to Sherwood’s residence. Based upon this and other hearsay information, appellant extended the credit requested.

The only agreement shown to have been entered into between Sherwood and Kas-par was the following written instrument dated March 1, 1963, put in evidence by appellant :

“The following is an agreement between Charles L. Sherwood, Jr., dba Postscript Homes, and Henry N. Kaspar.
“Mr. Kaspar agrees to provide interim financing on acceptable firm buyers loan commitments in return for a fee of $350.00 per house from Mr. Sherwood.
“Mr. Sherwood further agrees to diligently pursue the construction and the closing of the properties described below.” (This was followed by the signatures of Sherwood and Kaspar and a list of six street addresses.)

Three payments on the account were made by checks on Republic National Bank of Dallas signed by both appellee and Sherwood. It was also shown that appellee arranged for credit at the Republic National Bank under an agreement in writing on a printed form called a “Trade Name Declaration,” requested by the bank, that checks would be signed by appellee and either Sherwood or Nova Anne Sherwood. This “Trade Name Declaration” also contained the following paragraph:

“The signers hereto declare that no person or persons other than those whose names are affixed to this statement are interested in the designated business, and each and every one of the undersigned individuals personally guarantee the payment of all partnership obligations now due to the Bank or that hereafter may become due. The authorization to sign checks or other orders of withdrawals and/or notes or other evidence of indebtedness and/or collateral agreements is to continue in full force until the Republic National Bank of Dallas receives notice to the contrary or of the dissolution of the partnership or business in writing.”

It was also shown that appellee and Sherwood jointly signed promissory notes payable to Republic National Bank and another Dallas bank.

Essential elements of a joint adventure are a community of interest in the undertaking, a right in all parties to the ■transaction to share in the profits and an obligation on the part of each of them to share the losses. A joint adventure is in the nature of a partnership but is usually limited to a particular transaction or enterprise, and whether the relationship exists generally depends upon the intention of the ■parties. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011; Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716; W. H. Hodges & Co. v. Donley County State Bank, Tex.Sup.1966, 407 S.W.2d 221, 224.

We find nothing in this record to indicate that Sherwood and appellee ever ■intended any such relationship or that either of them should have the right to create a liability to third parties which would be binding on the other. The only agreement shown to exist between them was that expressed in the agreement dated March 1, 1963, quoted above, obligating appellee only to provide interim financing for a fixed fee, as supplemented by the collateral agreement that the funds thus arranged for by appellee could be withdrawn only by checks signed by him.

The facts of the latter agreement, and the manner in which the three checks payable to appellant and the notes to the banks were signed are all as consistent with the agreement of March 1, 1963 as with an agreement of partnership or joint adventure. Not only did appellee not have any “community of interest” with Sherwood in the ownership or building of the homes, but he was not shown to have had any right to participate in profits that might result from such enterprise, or any obligation to share in the losses thereof. So far as this record shows, his right to receive the fee of $350 per house for providing the interim financing was due him whether the enterprise was profitable or not. His subsequent losses resulting from performing his obligation to the Republic National Bank and in losing his agreed fees for providing the interim financing do not constitute any evidence of an agreement on his part to share in the losses resulting from the building of the houses by Sherwood.

Another element necessary to create a joint adventure is a mutual right of the contracting parties to control the enterprise. C. C. Roddy, Inc. v. Carlisle, Tex.Civ.App., 391 S.W.2d 765, wr. ref. n. r. e. Appellee was not shown to have the right to control in any degree the building of the houses or anything else connected with the enterprise except the right to insure, by joint signatures on the checks, that the funds he had arranged for as interim financing under his contract were actually disbursed properly.

Appellant claims partnership or joint adventure by estoppel, but there is no evidence that appellee, or anyone authorized by him to do so, made any representations whatsoever to appellant or did anything to lead it to believe that appellee had assumed the obligations of a partner or joint ven-turer in the enterprise. It was not shown that the “Trade Name Declaration” or the signing of the notes payable to the banks were known to, or relied upon by, appellant in extending credit to Postscript Homes; and of course the three checks payable to appellant were made subsequent to the extending of the credit. Moreover, the statements made to appellant by Sherwood and others, to the effect that he and appellee were partners or joint venturers, were all hearsay as to appellee and therefore wholly incompetent to form the basis of a finding of partnership or joint adventure. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631. Under those circumstances, appellee cannot be said to be estopped to deny any such relationship.

Therefore, it is our holding that there was no evidence to support the finding of the jury in response to Special Issue No. 2; and that the court properly sustained his motion to disregard that finding and render judgment for him notwithstanding the verdict. Appellant’s first point is overruled.

Appellant’s other three points of error on appeal are that the trial court erred: (2) in excluding from evidence the bottom portion of a “new account card” given by appellee and Sherwood to the Republic National Bank, (3) in holding that this card was hearsay and not a business record admissible under Art. 3737e, Vernon’s Ann. Civ.St., and (4) in not considering this new account card as probative evidence supporting the jury’s answer to Special Issue No. 2. The top half of the card in question shows “Postscript Homes” as the name of the account, followed by the signatures of appellee and Sherwood. The bottom half shows Sherwood’s residence address as the “Business Address”, and the word “Construction” under the heading of “Type Business”, the names of two officers of the bank under the heading of “Reference” followed by the words “New Joint Venture” under the heading of “Former Banking Connection.” In the lower right corner of the card, under the heading “Teller” appear the initials “N.Y.” When the card was offered in evidence by appellant, the trial court sustained appellee’s objection to all of the information on the bottom half as hearsay. Appellant argues that all of the information on the card was admissible, including the words “New Joint Venture,” under the provisions of Art. 3737e, V.A.C.S.

The pertinent parts of that statute are:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
“(a) It was made in the regular course of business;
“(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
“(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.”

Section 2 of said statute provides that such record may be proved by the custodian of the records even though he may not have personal knowledge as to the various items or contents of the record.

We hold, as the trial court held, that the excluded portion of the card was inadmissible because there was no proof as to who wrote the information contained in it, nor whether that person had personal knowledge of the information so written. Appellant offered the testimony of Conway Senter, Jr., a loan officer of the Republic National Bank, who testified that the account card was made in the regular course of the business of the bank for the purpose of setting up a checking account, that the filling in of the longhand writing on the card was made at or about the time the account was opened and would have been done by an employee of the bank, that it was customary for the teller or whoever filled out that part to place his or her initials at the bottom of the card, but that he had no knowledge or information as to who that person was nor whether that person had personal knowledge of the information contained in the memorandum. It was essential to establish that some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition. Skillern & Sons, Inc. v. Rosen, Tex.Sup.1962, 359 S.W.2d 298, 305.

Moreover, it is our opinion that, even if such personal knowledge on the part of the one writing the words “New Joint Venture” on the card had been established, that part of the card would have been inadmissible as being an opinion of some unknown witness on a question of law, or on a mixed question of law and fact, and not a fact useful to the court in determining the legal relationship of the parties. 2 McCormick & Ray, “Texas Law of Evidence,” §§ 1406, 1423, 1425, 1426, pp. 249, 263, 265-268; Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 656; Smith v. Lynn, Tex.Civ.App., 152 S.W.2d 838, no wr. hist.; Smith v. Selz, Tex.Civ.App., 395 S.W.2d 692, wr. ref. n. r. e.

Appellant’s second, third and fourth points of error are overruled.

The judgment appealed from is affirmed.

Affirmed.