author: SMITH, Justice. GREENHILL, Justice

text:
    O. V. OLIVIER, Petitioner, v. William SNOWDEN et al., Respondents.
    No. B-399.
    Supreme Court of Texas.
    April 3, 1968.
    Rehearing Denied May 1, 1968.
    Orgain, Bell & Tucker, Cleve Bachman and Lawrence L. Germer, Beaumont, for petitioner. "
    Harry Burns, Houston, for respondent.
   SMITH, Justice.

William Snowden sued O. V. Olivier to recover damages for personal injuries sustained by him on December 16, 1964. Snow-den was an employee of a general contractor, M. L. Osborne, who was in charge of construction work on a bank building in Jefferson County. Olivier was a subcontractor employed to do the plastering work on the building. The accident occurred while Snowden was using a scaffold owned by Olivier. Snowden’s position throughout has been that he was an invitee while occupying the Olivier scaffold, and that Olivier, on the theory that a custom of allowing mutual use- of scaffolding; had a duty to furnish to all employees, including the employees of the general contractor, a safe place to work. Snowden alleged negligence generally. Specifically, Snowden alleged that Olivier was negligent in “installing one inch thick boards on said scaffold,” and in certain other specific acts and omissions.

The pertinent facts are these: Snowden was employed by Osborne, the general contractor in charge of construction work of the Merchants National Bank in Port Arthur, Texas. Olivier was the subcontractor for plastering work on the building. To aid in the performance of his work, Olivier erected a scaffold on the outside of the building. Osborne testified that Olivier’s contract provided that all scaffolding was to be furnished by him. The scaffold involved in this accident was built by Olivier; Olivier’s men supervised the building of the scaffold; the building of the scaffold consisted of placing boards on a steel frame. Olivier was under no duty to furnish scaffolds for the use of the employees of any other contractor. There is no testimony that Olivier was required to construct the scaffolds with boards of a particular thickness. There is evidence that boards of 1 ⅝ inch thickness were generally used. There is evidence that the board involved in Snowden’s accident was 1 inch in thickness. Olivier testified that he contracted to do the “lathing and plaster” work. This simply means that the lathing is a wire mesh and the plaster is put on the wire mesh. Olivier testified that he also did some ceiling work, but was not performing this type of work at the time of the accident here involved. In regard to the scaffold, the evidence shows that it was put together as follows: A part of the scaffolding was rented by Olivier from the Saf-Way Scaffolding Company. The rented portion of the scaffold is a steel “frame work that’s six-feet tall and about five-feet wide.” Decking boards such as the one involved in this suit were placed upon the steel frame work. These boards, of different lengths and thicknesses, were secured by Olivier from lumber yards. The completed scaffold was put into use primarily by the Olivier employees. The scaffold was used by the men in the performance of the work Olivier had contracted to do. The outer boards upon the steel frames were also used at times as a storage place for plastering materials or as a support for the mortarboard used by the plasterers.

In regard to the use of scaffolding owned by one contractor by the employees of another contractor, it is undisputed that such usage prevails in construction work of the character involved here. It is undisputed that Olivier was under no contractual obligation to furnish his scaffolds to such workers. It is a fair deduction from all the evidence that each contractor had the. right to remove his scaffolds from one part of the building to another without regard to the need of the scaffold by workmen employed by other contractors. Furthermore, Olivier had the right to remove his scaffolds from the premises immediately upon the fulfillment of his contract. Evidence was introduced showing that on the Merchants National Bank job it was the practice of “employees of one contractor using any scaffold that had been put up by another contractor.” There is testimony that there is “no specific reason” for using another contractor’s scaffold. “It’s just a general practice * * * that if a craft has a scaffold up, regardless of what the craft is, there’s no reason for another craft to come and build a scaffold in the same place that this scaffold is already built. [The particular scaffold involved was located on the outside of the building under construction.] And, therefore, we just work from one scaffold or the other. Whoever gets a scaffold up first everybody works on it.” As to relative costs of performing contracts, there appears in the record the general statement that “[a]ssuming a scaffold had been put up on this particular job, * * * by a painting subcontractor,” it would “cost more money to tear down the painting subcontractor’s scaffold and erect a new scaffold.” A witness, who was a foreman for Olivier at the time of the accident, but not in the employ of Olivier at the time of trial, testified that he was not a witness to the accident, but was somewhere on the job at the time. This witness, on the question of the general custom of using scaffolds, testified as follows:

“Q Now Mr. Yentzen, on that Merchants National Bank job, in regard to the scaffolding that was put up by different contractors, what was done as to whether or not your employees occasionally used other scaffolding, that is scaffolding from other contractors or occasionally employees of other contractors used your scaffolding. Can you explain a little of that for us, please, sir?
“A You mean how much of other crafts’ scaffold did we use and how much of ours did they use?
“Q Yes, sir. That’s it. Just tell us how —what was done on that job in general, the way that was done.
“A Well, sir, it was typical I would say of most all of the jobs that we encounter. We did on occasion use some scaffolding equipment of Mr. Osborn’s. Very, very limited amount. We did use some scaffold of our own that I had brick layers erect instead of theirs since we would need it after they had left. Of course the electricians, has always worked off of our scaffold. And the iron workers worked off of our scaffolds and painters.
“Q Is that something that’s just understood among you craftsmen?
“A Yes, sir.
“Q Will you explain to the jury why that’s done. Give us an example if you will, why it’s done that way instead of tearing down and moving the scaffolding back and forth ?
“A Well, sir, ceiling for an example, the ladder is erected to a channel iron frame to which the metal lath is tied to which the plaster is applied. Well, the electrician, just for an example, attaches his light boxes or light fixtures to our channel iron framework after it has been installed. And normally it wouldn’t be practical for us to go in and erect a scaffold and iron the ceiling out and put up our metal framework and tear it down; and then let the electricians come in and erect whatever they require to install their electrical work; and then come back and replace our scaffold to finish the lathing and plastering.
“This just never seemed an economical approach.”

The evidence is clear that Olivier did not object to this occasional use of his scaffold by employees of the general contractor. The evidence is equally clear and undisputed that Olivier and his employees did not have actual knowledge that Snowden was using the scaffold. There was no express permission given to use the scaffold belonging to Olivier. It is also undisputed that Snowden was using the scaffold at the time of the accident pursuant to a direct order of Osborne’s foreman and not by order of Olivier or any of his workmen.

The case was tried to the court with the aid of a jury. The jury in answer to special issues found that a person of ordinary prudence in the exercise of ordinary care would not use a one inch thick board on the scaffold in question, and that the use of a one inch thick board was a proximate cause of Snowden’s fall from the scaffold. The jury further found that Snowden did not assume the risk when he attempted to lower a 300 pound form while standing on the scaffold. The court entered judgment in favor of Snowden against Olivier for $10,-239.00. The court awarded $6,736.65 of the award to Texas Employers Insurance Association, an intervenor claiming subrogation rights by virtue of discharging its liability under the terms of a workmen’s compensation policy which had been issued to Osborne, the employer of Snowden. The Court of Civil Appeals affirmed. 416 S.W. 2d 584. We reverse the judgments of the trial court and the intermediate court, and render judgment that Snowden and Texas Employers Association take nothing.

Olivier filed motions for instructed verdict at the close of Snowden’s evidence and at the close of all of the evidence. He also filed a motion for judgment non ob-stante veredicto within the time and in the manner required by the rules of procedure. The motions asserted that as a matter of law there was no evidence of probative value that Snowden occupied the status of an invitee; Snowden was injured while occupying the status of licensee, and that the only duty which Olivier owed Snowden was the duty not to injure him wilfully, wantonly or through gross negligence. Olivier further contended that there was no evidence of probative value that he had reason to anticipate or foresee that the scaffold would he put to a use involving a much greater strain than that for which the scaffold was designed. These motions were overruled.

The principal question for determination is the legal status of Snowden. Was he an invitee in his use of the scaffold, or was he a licensee? Olivier has elected to present this ultimate issue to this Court through five points of error. The first three involve the question of the duty owed by the sucontractor, Olivier, to Snowden, an employee of Osborne, the general contractor. The court of civil appeals has held that Olivier “owed the duty to use reasonable care to see that the scaffold constructed by him was safe for plaintiff to use.” The fourth point is that Olivier was entitled to the exclusive use and possession of his scaffolds. The court of civil appeals has held that “Olivier was not entitled to the exclusive use and possession of his scaffolds. * * * Plaintiff was rightfully using the scaffold as directed by his foreman [Osborne’s, the general contractor’s foreman]. Such use was necessary and proper in' the prosecution of the business of his employer, Osborne.” The fifth point is that the court of civil appeals erred in holding that Snow-den was an invitee on the scaffold in question. The holdings of the court of civil appeals, in effect, classify Snowden, the employee of the general contractor, as a business invitee of the subcontractor, thus imposing upon Olivier the duty to keep the scaffold involved in a reasonably safe condition for Snowden’s use.

We have found no Texas cases and have been cited to none which present a factual situation such as we have before us in this case. Since this is a case of first impression in this State, we have turned to other jurisdictions for guidance. We have found cases which announce the rule that a contractor’s or subcontractor’s employee using the equipment of another subcontractor engaged on the same general project is regarded as a mere licensee of the owner of the equipment, at least in the absence of a showing that its use by others worked in some way to the benefit of the owner. Accordingly, these courts have held that such an employee, injured by the defective condition of the equipment, was not entitled to recover against its owner for ordinary negligence in construction or maintenance. 32 A.L.R.2d 414. We have concluded that the facts bring the instant case within the orbit of the cases announcing the above rule.

The leading case is that of Arthur v. Standard Engineering Company, 89 U.S. App.D.C. 399, 193 F.2d 903, 32 A.L.R.2d 408 (1951). The facts there were very similar to the facts presented in the case at bar. In that case, the plaintiff was an employee of an electrical subcontractor and the defendant was a steamfitting contractor. The plaintiff, with permission, used a scaffold of defendant and was injured when a board broke. Proof of a custom of allowing mutual use of scaffolding was made, and it was shown that on the particular project involved, the defendant’s electricians had used ladders owned by other electricians. The Court, after relating the facts, stated the question for decision to be:

“The case turns, therefore, on the question whether an employee of a subcontractor is in the legal status of a licensee or that of an invitee when he uses, either by permission expressly given or implied from established custom, a scaffold erected by the employees of another subcontractor for their own use.”

The Court stated that it was well settled that “an invitor owes his invitee the duty of furnishing him with reasonably safe premises or applicances,” and that it was “equally well established that a licensor is not liable in damages for the injuries of a mere licensee, unless the injuries were the result of the licensor’s active negligence.” In holding against the contention that the plaintiff was an invitee, and against the contention that the defendant owed the plaintiff the duty of furnishing the invitee with a reasonably safe place to work, the Court said:

“The appellant says if any doubt existed whether he was a licensee or an invitee the question should have been submitted to the jury, * * * Unquestionably so, when the status depends upon issues of fact created by a contrariety of evidence. But here the facts essential to the determination of appellant’s status are not in dispute, and whether they showed him to have been a licensee or an invitee was a legal question for the court.
“ * * * The witnesses agreed that the steamfitters built the scaffold for their own use and permitted Arthur and the other electricians to use it. But the permission did not stamp him as an invitee. * * * ‘A permission, whether express or implied, is not an invitation to enter or use, and establishes no higher relation than that of mere licensor and licensee.’
<< ⅜ * *
“The true test under the mutual advantage theory is whether the owner of a scaffold or other appliance receives benefit or advantage from the permitted use by another of that particular piece of equipment. If so, the user is an invitee; if not, he is a licensee. As the court said in Larson v. Tri-City Electric Service Co., 7 Cir., 1943, 132 F.2d 693, 697, ‘A license imputes permissive authority from one occupying a superior position. A licensee has no right to occupancy except by permission of one in authority * * *.’ Here the Standard Engineering Company, being the owner of the scaffold, occupied a superior position with respect to it.”

Another case which is persuasive is Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4 (1943). This case was cited with approval in Arthur v. Standard Engineering Company, supra. The facts in Brauner v. Leutz were that Brauner was the painting contractor on a building project and Leutz had the contract to do the carpenter work. The carpenters had constructed a scaffold for their own use but granted the painters permission to use it. Brauner was injured when the scaffold collapsed. The court held that, “in order to create that relation [of invitor and invitee, * * *] the invitee must go upon and appropriate the premises or the facilities of the invitor by and through which some benefit is received by the latter. In other words, the mission of the invitee should be for the mutual benefit of both parties.”

The court went on to hold that Leutz was a licensor and not an invitor and that “[t]he doctrine appears to be universal that a licensor owes no duty to a licensee to provide safe places or premises for the occupancy or use of his licensee, save and except to abstain from doing any intentional, wilful (and in some jurisdictions gross reckless) act endangering the safety of the licensee.”

Likewise, in the case of Munson v. Vane-Stecker Co., 347 Mich. 377, 79 N.W.2d 855, wherein there was a similar question to the one involved here, the Court said:

“ * * * The test to be applied in a case of this character in determining whether a plaintiff was a licensee or an invitee is whether there existed mutual interests and mutual advantages to the parties concerned from the use of the equipment belonging to one party and left for use by another in the carrying on of a project in which both were interested.”

The Restatement of Torts, classifies such a situation as we have here as being comparable to a loan of chattels. Restatement, Second Torts §§ 388-392. The case of Lampe v. Magoulakis et al., 159 Ohio St. 72, 111 N.E.2d 7, 10 (1953) holds that:

“The law is well settled that, ordinarily, one is not liable for injuries resulting from the defective condition of a chattel loaned to another, where the one loaning the chattel did not in fact know of the defective condition, whether he ought to have known of it or not, and such one is under no duty to examine the condition of the chattel before lending it. 6 American Jurisprudence, 308, Section 193; annotations, 12 A.L.R. 774, 793, 61 A.L.R. 1336, 1338, and 131 A.L.R. 845, 855.”

Olivier, in fact, did not know of the defective condition of the board. After the accident, it was discovered that the board had broken at a place where there was a knot. The comment under Section 392' of the Restatement also makes it clear that before liability of a person who supplies a chattel can attach, under these circumstances, there must be evidence showing that the use of the chattel is one in which the supplier has a business interest.

Whether we conclude that the factual situation in the present case establishes only that Snowden had implied permission to use the scaffold, or whether we view the facts as establishing a relationship between Olivier and Snowden as that of lender and borrower of a chattel, the result is the same. Our analysis of the facts leads to the conclusion that in no event can Olivier be compelled to respond to Snowden in damages. The facts essential to the determination of Snowden’s status are not in dispute. Therefore, whether the facts showed Snowden to have been an invitee or a licensee was a legal question for the Court. Young Men’s Shop v. Odend’Hal, 73 App.D.C. 354, 121 F.2d 857 (1941). In the present case all witness agreed that Olivier erected the scaffold for his own use and permitted Snowden and others to use it. The evidence shows at most that Snowden was using and occupying the scaffold by acquiescence and not by invitation. Permission is not sufficient to turn the scale in favor of Snowden’s status being that of an invitee. “ * * * A permission, whether express or implied, is not an invitation to enter or use, and establishes no higher relation than that of mere licensor and licensee.” Branan v. Wimsatt, 54 App.D.C. 374, 298 F. 833 (1924).

Furthermore, the facts here do not meet the true test under the mutual advantage theory. We cannot agree with the theory that the mutual use of scaffolds as described here inured to the benefit of Olivier merely because such use of scaffolds would result in saving the extra cost of tearing down another contractor’s scaffold and erecting one in its place. Reciprocal use of different pieces of equipment owned by different contractors simply shows the custom in operation. Prosser on Torts (3rd Ed.) at page 396, says: “the ‘business’ on which the visitor comes must be one of at least potential pecuniary profit to the possessor.” We have examined the entire statement of facts as well as the facts recited in the briefs of the parties and find no evidence which shows anything other than that Snowden’s use of the scaffold was in response to the order of Osborne’s foreman. There is no evidence that the work which Snowden was performing resulted in any pecuniary benefit to Olivier. In the last analysis, we have a case where the use of the scaffold was not induced by the custom of contractors to use each other’s equipment, but was used in response to the order of the foreman of the general contractor. Under this record it was the duty of Osborne to inspect the scaffold before ordering Snowden to enter thereon. Snowden’s entry upon the scaffold was for the sole benefit of the general contractor, Osborne.

“In the. absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.” Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (1938).

In the case of Burton Construction and Shipbuilding Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954), we held under the facts of that case that:

“[tjhere existed no element of mutual benefit accruing by virtue of respondent’s [Broussard’s] visit to the shipyard on the morning of the explosion.”

In the case of Scalise v. F. M. Venzie & Co., 301 Pa. 315, 152 A. 90 (1930), a plastering subcontractor was held liable for the death of an employee of another subcontractor who fell from a scaffold owned by the plastering subcontractor because of its defective construction. The holding of liability rested upon the fact that the agreement between the plastering subcontractor and the general contractor provided for compensation to the plastering subcontractor when his scaffolds were being used by a subcontractor for decoration. Under such circumstances, the court held that the plastering subcontractor owed the duty of reasonable care. See also, Meny v. Carlson, 6 N.J. 82, 77 A.2d 245, 22 A.L.R.2d 1160 (1950).

There are two New York cases which appear to express a contrary view to that followed here: Quigley v. Thatcher, 207 N.Y. 66, 100 N.E. 596 (1912), and McGlone v. William Angus, Inc., 248 N.Y. 197, 161 N.E. 469, 470 (1928). However, these cases are distinguishable from the present case. In Arthur v. Standard Engineering Company, supra, these cases were discussed. As heretofore indicated, apparently an opposite result was reached than that in Arthur and Brauner, supra. However, the cases are not only factually different, but as pointed out in Arthur, the court in the New York opinions did not employ the “mutual advantage” test, and did not consider the question of whether the injured workman’s status was that of a licensee or that of an invitee. We are not passing on a case where, as in Quigley, the defendants were general contractors. In Quigley, plaintiff was an employee of a subcontractor. The defendants had erected the scaffold upon which plaintiff was walking when the plank gave way, and he was injured. There was no other appropriate way for plaintiff to reach the place of his labors except over the defendants’ scaffold. Under these facts, the court, after quoting a section of the Labor Law of New York which provided in effect that persons employing or directing another in the erecting, repairing, etc. of a house or building shall provide scaffolding adequately constructed to give proper protection to the “life and limb of a person so employed or engaged,” held:

“ * * * we think that when a contractor constructs and so locates a scaffold or platform that his subcontractor must of necessity or under the requirements of reasonable convenience in the performance of his work use the same the contractor may be held to have anticipated such use, and to have assumed liability to such subcontractor and his employés for the safety thereof.”

The court further held that the jury was justified in finding that the scaffold or platform constructed by the defendants was so situated from the entrance to the building under construction to the place where “plaintiff’s work called him that there was no other reasonable way to proceed than over it.” * * *

“In such a situation we think that the defendants could be held to have foreseen or have been obliged to foresee that their structure would be used as plaintiff was using it at the time of his accident, and that they, doing nothing to prevent this use, were bound to comply with the requirements of the statute in keeping it in proper condition for his use. It is not necessary to consider whether a contractor might on this theory be made liable for the safety of a scaffold when subjected by a subcontractor to a use involving a much greater strain than that for which the scaffold was designed, for no such feature is present in this case.”

In McGlone, where the facts were similar to those in Quigley, except the scaffold was erected by another subcontractor and not by a general contractor, the court held that such subcontractor was under a duty to use reasonable care to construct it so it would be safe for those who would naturally and customarily use it in the course of their work. It should be noted that in neither of these New York opinions did the court bring into play the “mutual advantage” test. The “mutual advantage” test was declared by the Supreme Court of the United States in the case of Bennett v. Louisville & N. Railroad Co., 102 U.S. 577, 584-585, 526 L. Ed. 235 (1880) to be:

“The principle * * * appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.”

Snowden contends that, as an employee of the general contractor, Osborne, he occupied the status of an invitee and that the duty owed to him is governed by the rule announced by this Court in Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950) and in Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1964). We hold that these cases have no application here. In Smith v. Henger, supra, a general contractor, was charged with “the legal duty * * * to use reasonable care to furnish a safe place to work for the employees of other contractors performing work on the job.” The Court applied the law applicable to the owner or occupant of land and held that “a general contractor on a construction job, who is in control of the premises, is burdened with the duty tp use due care to provide a safe place for workmen on the premises, including the employees of other contractors,” citing authorities. In Hernandez v. Heldenfels, supra, we announced the rule that one of the controlling facts “in cases such as this is the nature of the contractor’s possession.” In Smith v. Henger, supra, the Court was concerned with the question of the duty owed by a general contractor to the employee of a subcontractor. In the present case, we have a factual situation where an employee of the general contractor was using equipment owned by the subcontractor. The true test to be applied in the present case is whether the owner of a scaffold or other appliances receives benefit or advantage from the permitted use by another of that particular piece of equipment, in this case a scaffold. Here, as in Arthur v. Standard Engineering Company, supra, Olivier, the owner of the scaffold, has received no benefit or advantage from the permitted use of the scaffold.

The judgments of both the trial court and the court of civil appeals are reversed, and judgment is here rendered that the plaintiff, Snowden, and the intervenor, Texas Employers Insurance Association, take nothing.

GREENHILL, Justice

(dissenting).

I cannot agree with the conclusion of the Court that as a matter of law the plaintiff Snowden was not an invitee on the scaffold of defendant Olivier at the time of the accident. The testimony establishes that the various contractors and their employees used each other’s scaffolds whenever useful; and that this custom, practice and understanding was followed on this particular job as well as in the local construction industry in general. Although the evidence indicates that defendant Olivier was not responsible for furnishing scaffolds for employees of other contractors, it is undisputed that he did not object to the use of his scaffolding by such other employees, and that Olivier’s employees used the scaffolding of other contractors whenever necessary or useful.

Further the testimony conclusively establishes that the custom or practice of the reciprocal use of scaffolds was followed because it was mutually advantageous and beneficial to each contractor on a particular job. The various contractors benefited from the reciprocal use of each other’s scaffolds by saving the time and expense of erecting their own scaffolds when an existing scaffold would serve the purpose. Otherwise, as the record indicates, a contractor might be forced to tear down an existing scaffold and erect a new one in the same place; thus the reciprocal use of scaffolds was practical and economical. It is also established that defendant Olivier acquiesced in this custom and practice, and it may reasonably be inferred that he benefited thereby ; he testified himself that there were occasions when he and his men used the scaffolds of other contractors. There is no explanation in the record for defendant Olivier’s acquiescence in the practice of sharing scaffolds; except that this custom and practice was mutually beneficial to all concerned and in the mutual interest of all the contractors on a job.

The statement in the Court’s opinion that “there is no evidence that Snowden’s use of the scaffold was for the benefit of Olivier” ignores the basis for the custom among contractors of permitting each other’s employees the use of scaffolds erected by each other. That custom is based on sound business reasons — thus, it is of benefit to each contractor to follow the custom in connection with the construction of a particular building. The consent or implied invitation under these circumstances would be given for business reasons and not merely to accommodate the other contractor or his employees who use the scaffold. “An invitation is inferred when there is a common interest or mutual advantage, while a license is inferred when the object is the mere benefit or pleasure of the person using it.” Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756 (1888). If the purpose of the implied invitation was for business reasons, the economic benefit need not be direct or certain, so long as there is a mutual interest or business reason involved. Lindelow v. Peter Kiewit Sons’, Inc., 174 Neb. 1, 115 N.W.2d 776 (1962); Findley v. Lipsitz, 106 Ga.App. 24, 126 S.E.2d 299 (1962); Dotson v. Haddock, 46 Wash.2d 52, 278 P.2d 338 (1955); see Annotation, 95 A.L.R.2d 992 (1964).

Since Olivier acquiesced or permitted the use of his scaffold for business reasons, there was, in my opinion, an implied invitation rather than a license, since such acquiescence would be to Olivier’s advantage and in the mutual interest of the contractors on the job. As stated, the majority’s statement that “the evidence shows at most that Snowden was using and occupying the scaffold by acquiescence and not by invitation” ignores the evidence that the custom of sharing scaffolds was mutually advantageous. Thus an implied invitation should be inferred because the acquiescence or permission was given for business reasons, indirectly beneficial to defendant Olivier.

Arthur v. Standard Engineering Co., 89 U.S.App.D.C. 399, 193 F.2d 903,32 A.L.R.2d 408 (1951) cited by the Court is in point; but, in my opinion, it is wrongly decided and should not be followed. In Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4 (1943), there was apparently no evidence of mutual advantage or interest, since it was unmentioned by the Court. In the instant case, there was evidence that defendant Olivier acquiesced in the custom of sharing his scaffold for business reasons to his own indirect advantage, and not merely to accommodate or benefit plaintiff Snowden. There is no Texas case either way; and under these circumstances, the sounder rule would be that this is evidence of an implied invitation and at least an indirect benefit sufficient to make the plaintiff an invitee.

When it is shown that it is the custom of workmen of different crafts or employers to use the scaffolds of the other on this or the next job, it would appear sound to me to require that the scaffolds be constructed in a reasonably safe manner for all workers who might reasonably be foreseen as using them and in a manner which was ordinary. The jury acquitted the plaintiff of contributory negligence and assumed risk, and no point is presented to us on either of those issues. The defendant had points in the Court of Civil Appeals that the evidence to support these issues was insufficient. They were overruled.

I would affirm the judgments of the trial court and the Court of Civil Appeals.

CALVERT, C. J., STEAKLEY and POPE, JJ., join in this dissent.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    Ernestine HUMBER, Petitioner, v. Claude MORTON, Respondent.
    No. B-352.
    Supreme Court of Texas.
    March 27, 1968.
    Rehearing Denied May 1, 1968.
    Jerry R. Hollingsworth, Amarillo, for petitioner.
    Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, for respondent.
   NORVELL, Justice.

The widow Humber brought suit against Claude Morton, alleging that Morton was in the business of building and selling new houses; that she purchased a house from him which was not suitable for human habitation in that the fireplace and chimney were not properly constructed and because of such defect, the house caught fire and partially burned the first time a fire was lighted in the fireplace. Morton defended upon two grounds: that an independent contractor, Johnny F. Mays, had constructed the fireplace and he, Morton, was not liable for the work done by Mays, and that the doctrine of “caveat emptor” applied to all sales of real estate. Upon the first trial of the case (which was to a jury), Mrs. Humber recovered a judgment which was reversed by the Eastland Court of Civil Appeals and the cause remanded for another trial because of an improper submission of the damage issue. 399 S.W.2d 831 (1966, no writ).

Upon the second trial, defendant Morton filed a motion for summary judgment supported by affidavits, one of which referred to and incorporated therein the statement of the evidence adduced upon the first trial. Plaintiff likewise made a motion for summary judgment. Defendant’s motion was granted and that of the plaintiff overruled. Such judgment was affirmed by the Court of Civil Appeals upon the holdings that Mays was an independent contractor and that the doctrine of implied warranty was not applicable to the case. 414 S.W.2d 765. Mrs. Humber, as petitioner, brought the case here, but we shall refer to the parties by their trial court designations.

It conclusively appears that defendant Morton was a “builder-vendor.” The summary judgment proofs disclose that he was in the business of building or assembling houses designed for dwelling purposes upon land owned by him. He would then sell the completed houses together with the tracts of land upon which they were situated to members of the house-buying public. There is conflict in the summary judgment proofs as to whether the house sold to Mrs. Humber had been constructed with a dangerously defective fireplace chimney. Construction engineers who testified under oath for Mrs. Humber, as disclosed by the statement of facts upon the first trial which was made a part of the summary judgment record here, stated that the chimney was defective. Mr. Mays, who built the chimney, denied that his work was substandard or deficient in any way.

While there may be other grounds for holding that Mrs. Humber made a case to go to the jury, such as negligence attributable to Morton, failure to inspect and the like, we need not discuss these theories because we are of the opinion that the courts below erred in holding as a matter of law that Morton was not liable to Mrs. Humber because the doctrine of caveat emptor applied to the sale of a new house by a “builder-vendor” and consequently no implied warranty that the house was fit for human habitation arose from the sale. Accordingly, we reverse the judgments of the courts below and remand the cause to the district court for a conventional trial upon the merits.

Mrs. Humber entered into a contract when she bought the house from Morton in May of 1964 and such house, together with the lot upon which it was situated, was conveyed to her. According to Morton, the only warranty contained in the deed was the warranty of title, i. e. “to warrant and forever defend, all and singular, the said premises unto the said Ernestine Humber, her heirs and assigns, * * and that he made no other warranty, written or oral, in connection with the sale. While it is unusual for one to sell a house without saying something good about it, and the statement that no warranty was made smacks of a conclusion, we shall assume that such conversation as may have taken place did not involve anything more than mere sales talk or puffing, and that no express warranties, either oral or written, were involved. However, it is undisputed that Morton built the house and then sold it as a new house. Did he thereby impliedly warrant that such house was constructed in a good workmanlike manner and was suitable for human habitation? We hold that he did. Under such circumstances, the law raises an implied warranty.

Preliminary to our discussion of the controlling issue in the case, the applicability of the caveat emptor doctrine, we should notice the reference of the Court of Civil Appeals to Article 1297, Vernon’s Ann. Tex. Stats., which incidentally is not set out in the opinion, but is referred to by a quotation from Westwood Development Company v. Esponge, 342 S.W.2d 623 (Tex.Civ.App.1961, writ ref’d, n. r. e.). The statute is not deemed applicable here for a number of reasons. Article 1297 does not say that warranties as to fitness and suitability of structures upon land cannot arise unless expressed in the deed of conveyance. The article relates to covenants which may or may not arise from the use of certain specific words in a conveyance, namely, “grant” or “convey.”

This article is part of Title 31, Revised Statutes, relating to conveyances. It relates to covenants of title which arise out of conveyances and not to collateral covenants such as the suitability of a house for human habitation. The presence of a collateral covenant of this type in a deed would be strange indeed. “It is not the office of a deed to express the terms of the contract of sale, but to pass the title pursuant to the contract.” 26 C.J.S. Deeds § 1, p. 582. The article simply prescribes what covenants may be implied by the use of two designated words, “grant” or “convey.” The implied warranty of fitness arises from the sale and does not spring from the conveyance.

It may be that the lower courts were striking at the nonstatutory doctrine of merger under which all prior negotiations with reference to a sale of land are said to be merged in the final transaction between the parties. The doctrine of merger, however, is a matter generally controlled by the intention of the parties. 26 C.J.S. Deeds § 91, p. 841. For example: A owns Blackacre and agrees with B to construct a house thereon and then conveys the house and lot to B after the house has been completed. There are numerous cases that an implied covenant or warranty to build in a workmanlike manner is not destroyed by the deed. See, e. g., Perry v. Sharon Development Co. [1937] 4 All E.R. 390 (CA) ; Jones v. Gatewood, 381 P.2d 158 (Okl.1963).

If the passage of a deed does not operate to extinguish a warranty, either expressed or implied, in the case of an uncompleted house, it is difficult to understand how the deed could operate to merge and thus destroy an implied warranty raised by law in the case of a sale of a completed new house. It would be a strange doctrine indeed for the law to raise an implied warranty from a sale and then recognize that such warranty could be defeated by the passage of title to the subject matter of the sale. The issue here is not whether the implied warranty was extinguished by a conveyance, but whether such warranty ever came into existence in the first place.

The cases which give some weight to the doctrine of merger in the implied warranty situation hold that the doctrine of caveat emptor applies to sales of real property, thus reducing the “merger” theory to the status of a “unicorn hunting bow.” The merger doctrine implies that there is something to merge.

It might further be pointed out that generally in Texas, the notion of ! implied warranty arising from sales is j considered to be a tort rather than a con- ' tract concept. Decker & Sons v. Capp, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 11479 (1942); Putman v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir.1964). As to warranties implied from contracts and strict liability in tort, see, Epstein, “Strict Liability in Tort — A modest Proposal,” 70 W.Va.L.Rev. 1 (1967).

We return to the crucial issue in the case — Does the doctrine of caveat emptor apply to the sale of a new house by a builder-vendor ?

Originally, the two great systems of jurisprudence applied different doctrines to sales of both real and personal property. The rule of the common law— caveat emptor — was fundamentally based upon the premise that the buyer and seller dealt at arm’s length, and that the purchaser had means and opportunity to gain information concerning the subject matter of the sale which were equal to those of the seller. On the other hand, the civil law doctrine — caveat venditor — was based upon the premise that a sound price calls for a sound article; that when one sells an article, he implies that it has value. 77 C.J.S. 1159, Sales § 315, Sales 275, Sales, 46 Am.Jur. 275, Sales § 87.

Today, the doctrine of caveat emptor as related to sales of personal property has a severely limited application. Decker & Sons v. Capp, supra; McKisson v. Sales Affiliates, 416 S.W.2d 787 (Tex.Sup.1967); Putman v. Erie City Mfg. Co., supra; O. M. Franklin Serum Co. v. C. A. Hoover & Sons, 418 S.W.2d 482 (Tex.Sup.1967).

In 1884, the Supreme Court of the United States applied the doctrine of implied warranty, the antithesis of caveat emptor, to a real property situation involving false work and pilings driven into the bed of the Maumee River. The case of Kellogg Bridge Company v. Hamilton, 110 U.S. 108, 3 S.Ct. 537, 28 L.Ed. 86, arose in connection with the construction of a bridge. The Supreme Court, (the elder Mr. Justice Harlan writing), said:

"Although the plaintiff in error (Kellogg Bridge Company, defendant in the trial court) is not a manufacturer, in the common acceptation of that word, it made or constructed the false work which it sold to Hamilton. The transaction, if not technically a sale, created between the parties the relation of vendor and vendee. The business of the company was the construction of bridges. By its occupation, apart from its contract with the railroad company, it held itself out as reasonably competent to do work of that character. Having partially executed its contract with the railroad company, it made an arrangement with Hamilton whereby the latter undertook, among other things, to prepare all necessary false work, and, by a day named, and in the best manner, to erect the bridge then being constructed by the bridge company — Hamilton to assume and pay for such work and materials as that company had up to that time done and furnished. Manifestly, it was contemplated by the parties that Hamilton should commence where the company left off. It certainly was not expected that he should incur the expense of removing the false work put up by the company and commence anew. On the contrary, he agreed to assume and pay for, and therefore it was expected by the company that he should use, such false work as it had previously prepared. It is unreasonable to suppose that he would buy that which he did not intend to use, or that the company would require him to assume and pay for that which it did not expect him to use, or which was unfit for use. * * * In the cases of sales by manufacturers of their own articles for particular purposes, communicated to them at the time, the argument was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But, plainly, such an argument impeaches the whole doctrine of implied warranty, for there can be no case of a sale of personal property in which the buyer may not, if he chooses, insist on an express warranty against latent defects.
“All the facts are present which, upon any view of the adjudged cases, must be held essential in an implied warranty. The transaction was, in effect, a sale of this false work, constructed by a company whose business it was to do such work; to be used in the same way the maker intended to use it, and the latent defects in which, as the maker knew, the buyer could not, by any inspection or examination, at the time discover; the buyer did not, because in the nature of things he could not, rely on his own judgment; and, in view of the circumstances of the case, and the relations of the parties, he must be deemed to have relied on the judgment of the company, which alone of the parties to the contract had or could have knowledge of the manner in which the work had been done. The law, therefore, implies a warranty that this false work was reasonably suitable for such use as was contemplated by both parties. * * * ”

In Texas, the doctrine of caveat emptor began its fade-out at an early date. In Wintz v. Morrison, 17 Tex. 369 (1856), involving a sale of personal property, the Texas Supreme Court quoted with approval the following from Story on Sales as to the trend of 19th century decisions:

“[T]he tendency of all the modern cases of warranty is to enlarge the responsibility of the seller, to construe every affirmation by him to be a warranty, and frequently to imply a warranty on his part, from acts and circumstances, wherever they were relied upon by the buyer. The maxim of caveat emptor seems gradually to be restricted in its operation and limited in its dominion, and beset with the circumvallations of the modern doctrine of implied warranty, until it can no longer claim the empire over the law of sales, and is but a shadow of itself. * * *”

As to the present personal property rule of implied warranties or strict liability in tort, see, Decker, Putman, McKisson and Franklin, cited above.

While in numerous common law jurisdictions, the caveat emptor doctrine as applied to the vendor builder- — new house situation has overstayed its time, it was said by way of dicta in a Texas Court of Civil Appeals case in 1944 that:

“By offering the (new) house for sale as a new and complete structure appellant impliedly warranted that it was properly constructed and of good material and specifically that it had a good foundation, * * Loma Vista Development Co. v. Johnson, Tex.Civ.App., 177 S.W.2d 225, 1. c. 227, rev. on other grounds, 142 Tex. 686, 180 S.W.2d 922.

This decision has been described as “a preview of things to come.”

The rapid sickening of the caveat emptor doctrine as applied to sales of new houses was exposed by the Miller-Perry-Howe-Weck-Jones-Glisan-Carpenter syndrome. The history of this development is briefly set out in Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964), and in more detail by Professor E. F. Roberts in “The Case of the Unwary Home Buyer: The Housing Merchant Did It,” 52 Cornell Law Quarterly 835 (1967). See also, Williston on Contracts (3rd Ed. Jaeger) § 926A, wherein it is said: “It-would be much better if this enlightened approach (implied warranty, Jones v. Gatewood, 381 P.2d 158 [Okl.]) were generally adopted with respect to the sale of new houses for it would tend to discourage much of the sloppy work and jerry-building that has become perceptible over the years.” 7 Williston (3rd Ed.) p. 818; 1 Follmer and Friedman, Products Liability, § 5.03 [5] [b] ; Stewart, “Implied Warranties in the Sale of New Houses,” Note, 26 U. Pitt.L.Rev. 862 (1965); Haskell, “The Case for an Implied Warranty of Quality in Sales of Real Property,” 53 Geo.L.J. 633 (1965) ; Gibson and Lounsberry, “Implied Warranties — Sales of a Completed House,” Comments, 1 Cal.Western L.Rev. 110 (1965); Smith, “Torts, Implied Warranty in Real Estate, Privity Requirement,” Comment, 44 N.Car.L.Rev. 236 (1965); Ramunno, “Implied Warranty of Fitness for Habitation in Sale of Residential Dwellings,” 43 Denver L.Rev. 379 (1966).

The Glisan case (Glisan v. Smolenske), 153 Colo. 274, 387 P.2d 260 (1963), was factually similar to the hypothetical example heretofore set out in this opinion. Smolen-ske had agreed to purchase a house from Gilsan while it was under construction. The court propounded and answered the implied warranty question, thusly:

“Was there an implied warranty that the house, when completed, would be fit for habitation ? There is a growing body of law on this question, which, if followed, requires an answer in the affirmative.
“It is the rule that there is an implied warranty where the contract relates to a house which is still in the process of construction, where the vendor’s workmen are still on the job, and particularly where completion is not accomplished until the house has arrived at the contemplated condition — namely, finished and fit for habitation. Week v. A. M. Sunrise Construction Co., supra [36 Ill.App.2d 383, 184 N.E.2d 728]; Jones v. Gatewood, supra [381 P.2d 158]; Hoye v. Century Builders, Inc., 52 Wash.2d 830, 329 P.2d 474; Miller v. Cannon Hill Estates, Ltd., supra [2 K.B. 113] ; Perry v. Sharon Development Co., Ltd., supra [4 All E.L.R.]; Jennings v. Tavenner, 2 All. E.L.R. (1955) 769; Dunham, “Vendor’s Obligation as to Fitness of Land for a Particular Purpose,” 37 Minn.L.Rev. 108 (1953). Contra: Coutraken v. Adams, 39 Ill.App.2d 290, 188 N.E.2d 780.”

In the next year, 1964, the Colorado Supreme Court in Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399, extended the implied warranty rule announced by it in Glisan to cover sales of a new house by a builder-vendor. The court said:

“That a different rule should apply to the purchaser of a house which is near completion than would apply to one who purchases a new house seems incongruous. To say that the former may rely on an implied warranty and the latter cannot is recognizing a distinction without a reasonable basis for it. This is pointedly argued in an excellent article, ‘Caveat Emptor in Sales of Realty — Recent Assaults upon the Rule,’ by Bearman, 14 Vanderbilt Law Rev. 541 (1960-61.)
“We hold that the implied warranty doctrine is extended to include agreements between builder-vendors and purchasers for the sale of newly constructed buildings, completed at the time of contracting. There is an implied warranty that builder-vendors have complied with the building code of the area in which the structure is located. Where, as here, a home is the subject of sale, there are implied warranties that the home was built in workmanlike manner and is suitable for habitation.”

While it is not necessary for us to pass upon a situation in which the vendor-purchaser relationship is absent, the case of Schipper v. Levitt & Sons, 44 N.J. 70, 207 A.2d 314 (1965), is important as much of the reasoning set forth in the opinion is applicable here. The Supreme Court of New Jersey recognized “the need for imposing on builder-vendors an implied obligation of reasonable workmanship and habitability which survives delivery of the deed.” This was a case in which a person other than a purchaser had been injured by a defective water heater which had been installed in a new house by Levitt, the builder-vendor. The opinion cited and quotes from Carpenter v. Donohoe but proceeded upon the theory of strict liability in tort. The court placed emphasis upon the close analogy between a defect in a new house and a manufactured chattel. The opinion states:

“The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected as they were step by step in Henningsen [Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960)] and Santor [Santor v. A and M Karagheusian, 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965)]. * * *
“When a vendee buys a development house from an advertised model, as in a Levitt or in a comparable project, he clearly relies on the skill of the developer and on its implied representation that the house will be erected in reasonably workmanlike manner and will be reasonably fit for habitation. He has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial, and his opportunity for obtaining meaningful protective changes in the conveyancing documents prepared by the builder vendor is negligible. If there is improper construction such as a defective heating system or a defective ceiling, stairway and the like, the well-being of the vendee and others is seriously endangered and serious injury is foreseeable. The public interest dictates that if such injury does result from the defective construction, its cost should be borne by the responsible developer who created the danger and who is in the better economic position to bear the loss rather than by the injured party who justifiably relied on the developer’s skill and implied representation.”

In Bethlahmy v. Bechtel, 415 P.2d 698 (Idaho 1966), it appeared that the trial court had rendered judgment in accordance with the 1959 holding of the Supreme Court of Oregon in Steiber v. Palumbo, a much cited case which is relied upon by the defendant here. The specific finding of the trial court was:

“There are no implied warranties in the sale of real property. Steiber v. Palumbo, 219 Oreg 479, 347 P.2d 978 [78 A.L.R.2d 440] (1959); Annot., 78 ALR 2d 446. The sale of this home carried with it, absent an express warranty, no promise that the floor would not leak.”

The Idaho court was then called upon to deal with the Oregon decision and the later decisions of the Colorado Supreme Court in Carpenter and that of the New Jersey Supreme Court in Schipper. After a careful review of many decisions, including the Oregon, Colorado and New Jersey cases mentioned, the court said:

“The Schipper decision is important here because: (1) it illustrates the recent change in the attitude of the courts toward the application of the doctrine of caveat emptor in actions between the builder-vendor and purchaser of newly constructed dwellings; (2) it draws analogy between the present case and the long-accepted application of implied warranty of fitness in sales of personal property ; and (3) the opinion had the unanimous approval of the participating justices. * * *
“The foregoing decisions all (except the Hoye case) rendered subsequent to the 1959 Oregon decision, relied upon by the trial court, show the trend of judicial opinion is to invoke the doctrine of implied warranty of fitness in cases involving sales of new houses by the builder. The old rule of caveat emptor does not satisfy the demands of justice in such cases. The purchase of a home is not an everyday transaction for the average family, and in many instances is the most important transaction of a lifetime. To apply the rule of caveat emptor to an inexperienced buyer, and in favor of a builder who is daily engaged in the business of building and selling houses, is manifestly a denial of justice. See also, Loma Vista Development Co. v. Johnson (Tex.) 177 S.W.2d 225 (1943); Appendix to Staff v. Lido Dunes, Inc., 47 Misc.2d 322, 262 N.Y.S.2d 544, at 553 (1965).”

See also, Waggoner v. Midwestern Development, Inc., 154 N.W.2d 803 (So.Dak., 1967)

In September of 1967, the Houston Court of Civil Appeals handed down its opinion in Moore v. Werner, 418 S.W.2d 918 (no writ), in which, after citing a number of authorities, the court said:

“Many of the authorities cited involve personalty, but we see no reason for any distinction between the sale of a new house and the sale of personalty, especially in a suit between the original parties to the contract, one of whom constructed the house in question. It was the seller’s duty to perform the work in a good and workmanlike manner and to furnish adequate materials, and failing to do so, we believe the rule of implied warranty of fitness applies. Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474, 476; Mann v. Clowser, 190 Va. 887, 59 S.E.2d 78, 84; 13 Am.Jur.2d, p. 29, Sec. 27.” * * *

If at one time in Texas the rule of caveat emptor had application to the sale of a new house by a vendor-builder, that time is now past. The decisions and legal writings herein referred to afford numerous examples and situations illustrating the harshness and injustice of the rule when applied to the sale of new houses by a builder-vendor, and we need not repeat them here. Obviously, the ordinary purchaser is not in a position to ascertain when there is a defect in a chimney flue, or vent of a heating apparatus, or whether the plumbing work covered by a concrete slab foundation is faulty. It is also highly irrational to make a distinction between the liability of a vendor-builder who employs servants and one who uses independent contractors. Compare, Conner v. Conejo Valley Development Co., 61 Cal.Rptr. 333 (1967). The common law is not afflicted with the rigidity of the law of the Medes and the Persians “which altereth not,” and as stated in Cardozo in “The Nature of the Judicial Process,” pp. 150-151 (quoted in 415 P.2d 698):

“That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old ‡ ‡ ‡ "

The caveat emptor rule as applied to new houses is an anachronism patently out of harmony with modern home buying practices. It does a disservice not only to the ordinary prudent purchaser but to the industry itself by lending encouragement to the unscrupulous, fly-by-night operator and purveyor of shoddy work.

The judgments of the courts below are reversed and the cause remanded for trial in accordance with this opinion.

GRIFFIN, J., notes his dissent.

      . The Court of Civil Appeals without discussion overruled a number of points which asserted that Morton was entitled to judgment as a matter of law.

      . Article 1297:
      “Prom the use of the word ‘grant’ or ‘convey,’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs or assigns, are implied, unless restrained by express tertas contained in sucli conveyance:
      “1. That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title or interest therein, to any person other than the grantee.
      “2. That such estate is at the time of the execution of such conveyance free from incumbrances.
      “Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.”

      . A broken and inoperative cross-bow which is as effective as a good weapon since no one has seen a unicorn since the time of Noah.

      . 52 Cornell Law Quarterly 835, 1. c. 841.

      . Miller v. Cannon Hill Estates, Ltd., [1931] 1 All E.R. 93 (K.B.); Perry v. Sharon Dev. Co., [1937] 4 All E.R. 390 (C.A.); Hoye v. Century Builders, Inc., 52 Wash.2d 830, 329 P.2d 474 (1958); Week v. A. M. Sunrise Construction Co., 36 Ill.App.2d 383, 184 N.E.2d 728 (1962) ; Jones v. Gatewood, 381 P.2d 158 (Okl.1963) ; Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963) ; and Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964).

      . It is said in the opinion that, “It is true, as Levitt suggests, that cases sucli as Carpenter (388 P.2d 399) involved direct actions by original vendees against their builder vendors and that consequently no questions of privity arose. But it seems hardly conceivable that a court recognizing the modern need for a vendee occupant’s right to recover on principles of implied warranty or strict liability would revivify the requirement of privity, which is fast disappearing in the comparable products liability field, to preclude a similar right in other occupants likely to be injured by the builder vendor’s default. * ⅜ * ”

      . In the vendor-builder situation, Professor Roberts seems inclined to agree with Mr. Bumble’s estimate of the law and points out that when caveat emptor is retained with regard to the sale of new houses, the law seemingly concerns itself little with a transaction which may and often does involve a purchaser’s life savings, yet may afford relief by raising an implied warranty of fitness when one is swindled in the purchase of a two dollar fountain pen. 52 Cornell L.Rev. 835. Similarly, in 111 Solicitors’ Journal 22, 1. c. 25 (London), it is pointed out that, “the purchaser buying a new house with legal assistance is often less well protected legally than the purchaser buying a chattel without legal assistance.” It is further urged that, “The legal profession should have made it their business to insure proper protection for the purchaser without waiting for building societies to take the initiative” for their own protection since most builders “try to do a good job (but) the reputation of all may be injuriously affected by the low standards of a few.”

      . See also, Holmes, Collected Legal Papers, p. 187, quoted in 16 Baylor L.Rev. 263, 277, viz.:
      “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule persists from blind imitation of the past.”


author: CALVERT, Justice.

text:
    Armando GOMEZ LEON et ux., Petitioners, v. The STATE of Texas, Respondent.
    No. B-541.
    Supreme Court of Texas.
    April 3, 1968.
    Rehearing Denied May 1, 1968.

      Albert Armendariz, El Paso, for petitioners.
    Crawford C. Martin, Atty. Gen., Watson C. Arnold, Asst. Atty. Gen., Austin, for respondent.
   CALVERT, Justice.

This is a condemnation case in which The State of Texas seeks to condemn 11,-257 square feet of land, owned by Armando Gomez Leon and wife and situated in El Paso, Texas, for highway purposes. Special Commissioners awarded the owners $6,685, to which award the State filed its objections. The State deposited the amount of the award in the registry of the court and it was withdrawn by the owners. In a trial in the County Court at Law of El Paso County, a jury found the reasonable market value of the property on March 1, 1965, the date of the taking, to be $3,377.-10. The trial court rendered judgment awarding the State fee simple title to the property and a recovery from the owners of $3,307.90, with six per cent interest on that sum from March 1, 1965. The court of civil appeals has affirmed. 418 S.W.2d 544. We reverse the judgments of the courts below and remand the cause to the trial court for retrial.

Leon and wife were appellants in the court of civil appeals. They had ten points of error in that court. All were overruled. Rulings on only two of the points are brought here for review.

By their first point petitioners complain of the failure of the court of civil appeals to reverse the judgment of the trial court because that court erroneously permitted the State to prove the amount paid for the property by Leon when he bought it some 14 to 18 years before the date of taking. The court of civil appeals held that the trial court erred in admitting the evidence but that the error did not require reversal.

Leon was the first witness to testify. He testified, without objection, that his property was worth $18,000, and that he bought the property some time prior to October 18, 1951, the date of his deed. On cross-examination he was required, over objection, to tell the jury what he paid for the property. He testified to a price of $800. Recognizing that the ruling of the trial court would have been erroneous in normal circumstances because of remoteness of the transaction, State v. Curtis, 361 S.W.2d 448 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.); Scott v. McLen-nan County, 306 S.W.2d 943 (Tex.Civ.App.—Waco 1957, writ ref’d n. r. e.), the State contends that it was not erroneous in this case because of other testimony given by Leon on direct examination.

One of the reasons given by Leon on direct examination for placing a value of $18,000 on the property was that it was near the campus of The University of Texas at El Paso which was expanding; and that the campus could be expanded farther in only one direction and that was toward his property, thus enhancing its value. The State contends that this testimony made evidence of the price paid for the property by Leon admissible to show “that the area around the property had not changed” since 1951. That fact — if it be a fact — was easily susceptible of proof without inquiring as to the amount paid for the property. The ruling of the trial court in admitting the testimony was erroneous.

In their second point of error petitioners complain of the failure of the court of civil appeals to reverse the judgment of the trial court because the State’s expert witness was permitted to testify, as a basis for his appraised value and over strenuous objection by petitioners’ counsel, to prices paid for property in the area by The University of Texas at El Paso. The State contends that admission of the testimony was not erroneous because its admission was invited by counsel for the Leons. We must first go to the record to decide whether the testimony was invited.

Petitioners’ expert witness was asked on cross-examination if he thought the University had been “paying anywhere near” the value he had placed on the subject property “for that land in there.” The witness answered, “I don’t know.” Counsel for the State continued to press the witness on the subject of sales to the University. Asked if he had stated that one of the things “that made this property valuable” was the fact that “some day the college will take it,” the witness answered: “Yes, sir, there are innumerable uses that this land could be put to by college or by anyone that wanted to use it.” The State’s counsel thereupon put his next question thusly: “But yet you say that out of one side of your mouth, but you never tell this jury what the college is paying for any of that land, do you ?” The witness answered, “No, sir, I didn’t know, I didn’t look it up.” Counsel for the State then began a rather lengthy question, obviously argumentative and objected to on that ground. The court sustained the objection. Petitioners’ counsel then stated: "If the court please, if counsel has such a sale from [⅛] the college maybe he can introduce it.” Thereupon counsel for the State introduced his next question and put the question in this language: “All right, sir, we’ll introduce the college sale, counsel has asked for it and we will introduce it, yes, sir. Since counsel said that I’ll ask you, do you know that the college is paying about 9⅜⅝ a square foot for that property within 100 foot of this property?” Petitioners’ counsel interjected: "If the court please, that is not zvhat I asked for. If he’s got any such sales and its subject to the ruling of this court then for goodness sakes present them. He has already said he doesn’t know of any.” Counsel for the State answered: “Counsel asked me to do it, and I am going to ask the witness if he knows, and then I will present them when my time comes.” At a later stage of the trial, the State’s expert witness was permitted, over petitioners’ objection and as a basis for his opinion that the subject property had a value of 15^ a square foot, to testify to five sales of property to the University. Three of the sales were for 9‡ a square foot, one was for 13½{⅞ a square foot, and one was for 22fS a square foot.

On the basis of the foregoing examination of the circumstances surrounding admission of the testimony, we hold it was not invited. The State says the two statements by petitioners’ counsel which we have emphasized constituted an invitation. We do not agree. The first statement was that if State’s counsel had evidence of a sale to the college, “maybe” he could introduce it. Then when State’s counsel asked the witness if he knew that “the college had been paying about 9‡ a square foot,” petitioners’ counsel said, in effect, that if counsel for the State had evidence of any such sales he should present them “subject to the ruling of this court” on their admissibility. As we interpret the two statements, they were nothing more than a qualified invitation to State’s counsel to offer evidence of sales to the University, if any he had, and he could introduce it if in the face of objection the court held it admissible.

Objection to the testimony of the State’s expert witness as to sales made to the University should have been sustained. Our courts have consistently held that proof of sales of property to a corporation or a governmental agency having power of eminent domain is not admissible in a condemnation suit. As examples, see State v. Curtis, 361 S.W.2d 448 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.); Menchaca v. San Antonio Ind. Sch. Dist., 297 S.W.2d 363 (Tex.Civ.App. —Waco 1956, writ dism’d). The reason for excluding proof of such sales is that they do not meet the willing seller-willing buyer concept; they are made under a direct or an implied threat of condemnation and, theoretically at least, are not free and voluntary. State v. Curtis, supra. There is even less reason for permitting an expert witness to consider such sales in arriving at an opinion as to the value of property being taken through condemnation and to testify to the prices paid. The rule of State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207 (1962) cannot thus be expanded to get inadmissible value evidence before a jury.

Having held that the trial court erred in admitting testimony of the price paid by petitioners for the subject property and of prices paid by the University for other property in the area, the final question to be decided is whether admission of the testimony was prejudicial error. The question is governed by Rules 434 and 503, Texas Rules of Civil Procedure, which provide : “ * * * no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant [petitioner] as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * Whether particular error was “reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case” is always a judgment call to be made according to the reviewing court’s “opinion” from a review of the entire record in the case. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949).

It is our opinion that the two errors require a reversal; that it is more likely than not that the inadmissible testimony caused the jury to place a lower value on the property than it would otherwise have placed thereon. Both errors bear directly on the issue of value, the only issue in the case. Leon testified that the property had a value of $18,000. Petitioners’ expert witness testified to a value of $19,699.75 or $1.75 a square foot. The State’s only witness, an expert, testified to a value of 15⅜⅞ a square foot, rounded off to $1,700. As a basis for his valuation, the witness testified to four sales to purchasers not having eminent domain power. One was for 35⅞⅞, one was for 47‡, one was for 52⅜5, and one was for 38½(⅜ a square foot. The witness admitted considering the sales to the University as comparable sales in arriving at his valuation of 15⅞⅞ a square foot. The jury fixed the value of the subject property at $3,377.10, or approximately 35⅞⅝ a square foot, the lowest value equivalent of admissible comparable sales used by the State’s expert. While the jury obviously did not fix a value on the subject property as low as the price paid for the property or as low as the prices paid by the University, we are satisfied that its answer to the special issue was influenced by this testimony.

The judgments of the courts below are reversed and the cause is remanded to the trial court for a new trial.

      . Emphasis ours throughout unless otherwise indicated.


author: PHILLIPS, Justice.

text:
    Bruno FRIESENHAHN, Appellant, v. CITY OF NEW BRAUNFELS, Texas, Appellee.
    No. 11588.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1968.
    Rehearing Denied April 10, 1968.
    Maxwell Burket, San Antonio, for appellant.
    S. T. Burrus, City Atty., New Braunfels, for appellee.
   PHILLIPS, Justice.

Appellant has been the owner and operator of a used auto parts and junk yard business for many years in New Braunfels. He petitioned the trial court for a temporary injunction to restrain the city of New Braunfels, appellee, from arresting him and fining him and from interfering in his business of maintaining junk cars and auto parts outside the building on his premises which is located on one of the main thoroughfares of the city. Appellant contended that the city had threatened this course of action that he sought to arrest under a new zoning ordinance, 67-12, recently passed, which prohibits the maintaining of junk cars and parts on appellant’s premises.

The trial court denied the injunction and appellant has perfected his appeal here.

We affirm.

Appellant is before this Court on three points of error the first being that the city zoning ordinances should not be given a retroactive or retrospective effect; the second being that the enforcement of this zoning ordinance would deprive appellant of his property rights without due process of law and without compensation in violation of the Texas Constitution; the third being that maintaining the used auto parts and junk automobiles are not nuisance per se and when they are part of the tools of trade in a business, in the absence of clear and convincing proof that they are harmful to public health, safety, morals or welfare, thereby constituting a nuisance, threats to compel their removal under a new city ordinance enacted many years after appellant’s business was first established, constitutes an arbitrary use of police power.

We overrule these points.

The record discloses that appellant has maintained his present business at its present location since 1947. The new zoning ordinance appellant complains of was enacted in May of 1967; however, the record also discloses that the city is not proceeding against appellant under the authority of this new zoning ordinance but is proceeding under several older ordinances that prohibit the maintenance of a nuisance within the city limits. Most of the warnings sent appellant by the city through letters and by other means were sent before the enactment of the zoning ordinance complained of. Both of these nuisance ordinances are possibly applicable in the case before us and any injunctive relief granted appellant here would not be a bar to their enforcement by the city. Consequently, we hold that the trial court did not abuse his discretion in denying the temporary injunction. Davis v. Upshur County, 191 S.W.2d 524 (Tex.Civ.App. Tex. arkana 1945, no writ); Basham v. Holcombe, 240 S.W. 691 (Tex.Civ.App. Galveston 1922, no writ).

The judgment of the trial court is affirmed.

Affirmed.

      . Ordinance 14-14 of the City of New Braunfels reads as follows :
      “It shall be unlawful for any person to operate, maintain or allow to exist any junk yard within the city limits, except automobile wrecking and junk yards operated by special permission granted by the city commission.
      The term ‘junk yard,’ as used in this section, is defined to be a storage yard for junk iron, scrap iron, junk iron or steel pipe and boxes, or any other type or kind of junk whatsoever.”
      Ordinance 11-22 of the City of New Braunfels reads as follows:
      “It shall be unlawful for any person, firm or corporation who shall own or occupy any lot or lots in the City to allow weeds, rubbish, brush or any other unsightly, objectionable or insanitary matter to accumulate or grow on said lot or lots.”


author: RENFRO, Justice.

text:
    ARLINGTON ACCEPTANCE CORPORATION, Appellant, v. Richard E. TAYLOR et ux., Appellees.
    No. 16906.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1968.
    Rehearing Denied April 12, 1968.

      Irby & McConnico, and Phil Strickland, Fort Worth, for appellant.
    Fritz & Vinson, and Donald W. Keck, Dallas, for appellees.
   OPINION

RENFRO, Justice.

The Arlington Acceptance Corporation brought suit on a promissory note and for foreclosure of a chattel mortgage against Richard E. and Betty A. Taylor.

Defendants filed plea of privilege claiming Dallas County as their residence.

Plaintiff sought to hold venue in Tar-rant County under Section 5, Art. 1995, Vernon's Ann.Tex.Rev.Civ.St.

The plea was sustained by the trial court and the cause ordered transferred to Dallas County Court at Law No. 1.

Plaintiff contends the court erred because (1) the evidence established fact of a contract in writing performable in Tarrant County, and (2) defendants failed to prove that such contract was void, or was in any other way unable to support venue in Tar-rant County.

Plaintiff introduced testimony that the place of payment, Arlington, Tarrant County, was written in the note when it was signed by the defendants.

Defendants claimed the place of payment was blank when they signed the note, and that they had never agreed in writing or orally to make payments in Tarrant County, or to allow plaintiff to fill in the blank space.

The trial court chose to accept defendants’ version of the transaction.

At the time the note was executed the Texas Regulatory Loan Act, Chap. 205, Acts of the 58th Legislature, was in effect. Plaintiff was a licensee under said Act. The space for place of payment was blank in the copy of the note delivered to defendants. Section 20(d) of said Act provided that no licensee shall take any instrument in which blanks are left to be filled in after the loan is made. We are not here concerned with the ultimate effect of the act of licensee in filling in blanks after the loan is made. The court in the venue hearing, however, could take into consideration such after “filling in” of the blank in support of its implied finding that no place of payment was agreed upon.

In a case tried without a jury, the court sits as a trier of the facts as well as of the law. He is the judge of the credibility of the witnesses and the weight to be given their testimony. The court may draw any reasonable inferences from the evidence, and any doubts as to the facts will be resolved in favor of the judgment. Paddock Engineering Co. of Texas v. Rife, 310 S.W.2d 594 (Tex.Civ.App., 1958, ref., n. r. e.; Republic Ins. Co. v. Inverness Estates, 252 S.W.2d 251 (Tex.Civ.App., 1952, ref.).

Where there is probative evidence to support the findings and judgment in a non jury case, they are controlling on the reviewing court and will not be disturbed even though the evidence is conflicting. Ambrose & Co. v. Hutchison, 356 S.W.2d 215 (Tex.Civ.App., 1962, no writ hist.).

It is within the province of the trier of facts to resolve conflicts and inconsistencies in the testimony of any one witness, as well as the testimony of different witnesses, Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923), and the appellate court will view the evidence in the light most favorable to the judgment.

There being ample evidence of probative force to support the trial court’s judgment, when viewed in the light of the above rules, the judgment is sustained. McElyea v. Cosby, 233 S.W.2d 482 (Tex.Civ.App., 1950, no writ hist.) ; Martinez v. General Beverage Distributors, 312 S.W.2d 284 (Tex.Civ.App., 1958, no writ hist.).

Judgment affirmed.