author: PARKER, Justice.

text:
    Carl M. LAYMON, Appellant, v. JACK TAR ORANGE HOUSE, INC., et al., Appellees.
    No. 6777.
    Court of Civil Appeals of Texas. Beaumont.
    June 10, 1965.
    Alto V. Watson, Beaumont, for appellant.
    Marcus Weller, Wheelus & Green, Beaumont, for appellee.
   PARKER, Justice.

Carl M. Laymon sued Orange Hotel, Inc., Jack Tar Orange House, Inc., and the Jack Tar Company for damages by reason of a personal injury received by Laymon. Summary judgment was entered for such defendants. Carl M. Laymon will be called appellant and Orange Hotel, Inc., Jack Tar Orange House, Inc., and the Jack Tar Company will be called appel-lees.

Appellant and his family were paying guests of the hotel operated by the defendant Orange Hotel, Inc., where they had a room or cabana with a concrete porch near a pool with an inclined grassy plane from the porch up to the pool. Appellant alleged that appellee was negligent in maintaining and keeping such an incline without steps, handrail or other safety device to protect the safety of appellant in descending from the side of the pool to the porch of the cabana he was occupying, the incline being so steep that appellant could not walk normally from the sidewalk around the pool to his cabana, but instead the appellant was required to inch his way down— that is, to take very small steps in an effort to get to his cabana porch, and the appellant was in fact inching his way down the steep incline of 30 to 45 degrees or more in order to reach his cabana porch when he fell, striking and injuring his knee on the edge of the concrete porch which was higher than the level of the adjacent ground “but such could not be determined with the naked eye due to the fact that grass had grown over the edge of the concrete”. Appellant alleged such acts of ap-pellee to be negligent and a proximate cause of the injuries and damages suffered and to be suffered by appellant.

Jack Tar Orange House, Inc., was merely a trade name for the hotel operated by Orange Hotel, Inc. The Jack Tar Company denied it owned, operated or participated in the operation of the hotel property. Appellee Orange Hotel, Inc., in its first amended original answer asserted various defenses, including the defense of “open and obvious”. Appellees then filed their motion for summary judgment under Rule 166-A, Texas Rules of Civil Procedure, on the ground that no genuine issue existed as to any material fact relating to the liability of appellees to appellant and that they were entitled as a matter of law to such summary judgment.

Appellant’s two points of error contend the trial court erred in entering summary judgment for appellee, because (a) fact issues were raised as to whether the condition of the premises was so open and obvious that the plaintiff actually knew of the danger of his using the incline, fully appreciated the same, and voluntarily exposed himself to the danger, and (b) there was a fact issue as to whether or not the plaintiff even knew of one danger he encountered: namely, the edge of the concrete porch of the cabana was obscured by grass.

The slope on the incline from the cabana to the pool was 30 degrees. In ap-pellee’s motion for summary judgment their contention was that appellant freely admitted in his deposition that any conditions of which he could complain were open and obvious to him, and that he had full knowledge thereof both before, immediately prior to and during the accident, so that appellant with full knowledge of such conditions and with full appreciation of any dangers thereof, nevertheless, voluntarily, assumed any risk which was involved in selecting this means of walking to his cabana and, therefore, is barred from any recovery against appellees. Such testimony of appellant is as follows: He walked up this very same incline the morning before he fell back down it that afternoon. In the morning he and his wife went to the coffee shop but did not walk up the incline. They took a longer route by going out the back door of the cabana because his wife had on high heels and couldn’t possibly walk up that incline in high heels. That afternoon appellant knew that he could have gone to his cabana in the same safe way he had previously taken with his wife by going out to the end of the pool behind the cabana to the parking lot and thence from the parking lot into the back door of the cabana. As to the incline, appellant stated that he was afraid for his wife to walk on that incline with high heels. Appellant had gone to the swimming pool, sunned himself and decided to return to his room in the cabana in the afternoon. From the pool he stepped over the curb onto the incline with both feet and was inching down, “sort of a Chines step affair”, going down the incline and fell due to the steepness of the area. Nothing distracted his attention. He was looking at the front door of his cabana and at the grass where he was walking because “you would have to be to observe where you were going. Especially on that kind of incline.” He knew there was no walk provided in front of the cabanas to the pool. “It’s all a hill.” This steep incline was not concealed from appellant in any way. He was looking right at it when he started down to his room just before he fell. Appellant did not know exactly what happened when he fell. It was a three foot drop and it was instantaneous. Appellant testified:

“ * * * A man wouldn’t rent a cabana at the Jack Tar, if it were not located at the pool where he could go to the pool from his front porch. It’s not located so that you have to walk around the block to approach it from a so-called safe angle. It’s located this way (indicating) by the Jack Tar Company’s. They sell their services in this manner. I maintain that anything that has a forty-five degree angle, and is so situated, was dangerously constructed, * * * ”
“ * * * they created an angle there that is almost forty-five degrees straight down which they are providing for their customers to use. And, this in itself, is a dangerous situation, and I was a victim of it, that’s all.”

We hold appellant knew of the danger of walking on this steep incline and appreciated the consequences of encountering it.

Considering appellant’s pleadings and appellant’s testimony and giving due regard to the principles stated in Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368 (1963); Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); and Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372 (wr.ref’d), appellant’s points of error are overruled.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. Cornelius J. MITCHELL, Jr., Appellee.
    No. 148.
    Court of Civil Appeals of Texas. Tyler.
    July 8, 1965.

      John M. Smith, Roberts & Smith, Long-view, for appellant.
    Welby K. Parish, Gilmer, for appellee.
   DUNAGAN, Chief Justice.

This cause of action was instituted in the 115th District Court of Upshur County on November 21, 1962, by the appellee, Cornelius J. Mitchell, Jr., against the appellant, The Millers Mutual Fire Insurance Company of Texas, under the collision section of the Texas Standard Family Automobile Policy issued by appellant to appellee covering loss by damages to his automobile, which policy provided for $100.00 deductible from the actual cash value. This suit resulted from an automobile driven by John E. Whitehead, into the side of an automobile driven by Cornelius J. Mitchell, Jr., the appellee in this case, on October 11, 1960, which resulted in . extensive damage to Mitchell’s automobile and personal injuries to himself. The appellant filed its answer to appellee’s petition resisting payment of appellee’s claim on the ground that a sworn proof of loss had not been filed within 91 days as required by the policy, estoppel, laches and stale demand.

The appellee affirmatively pleaded waiver of proof of loss by appellant and substantial compliance with the terms of the policy by appellee.

The trial court, submitted all of the above theories by Special Issues to the jury and the jury answered all the issues against appellant.

The trial court entered judgment in favor of appellee in the sum of $691.00 based on the jury verdict.

At the conclusion of the evidence, appellant filed a motion for instructed verdict, which was denied, and thereafter a motion for judgment non obstante veredicto and amended motion for a new trial, both of which were denied.

David Swann, an insurance adjuster, was requested by Stropp-Davis Insurance Agency, the writer of the policy, to investigate this accident. Swann interviewed Mitchell one or two days after the accident and took a sworn written statement from him at that time as to how the accident happened. It is not shown that this statement contained any proof of the loss sustained by appel-lee as a result of the damages to his automobile. He also viewed the wrecked automobile which he said was a total loss. On this occasion Swann told Mitchell that since his car was a total loss, that they could go ahead and effect settlement at this time and since he (Mitchell) was then going into the hospital, that they could wait a few days and come back and take a proof of loss from him at a later date. In reply, Mitchell stated he did not wish to collect under his insurance policy at that time, but wanted to see if the liability carrier for Whitehead would pay for his injuries and damages to his car. Swann next saw Mitchell about a week or week and a half later at which time Mitchell told him he was waiting for Charles Wyatt, who was the claim adjuster for Traders & General Insurance Company, which had the liability insurance coverage on Whitehead’s car, to arrive to discuss settlement with him. Swann saw Mitchell again about two weeks later and Mitchell stated at that time that he did not wish to settle against his own policy, that he was in the process of effecting a settlement with Charles Wyatt, and that he was negotiating for settlement for his personal injuries and property damage to his car. Swann testified that after the above mentioned contacts, he never attempted to contact Mitchell any more in regard to settling with him, because Mitchell had told him he did not want to settle with them. He further testified that he reported to the appellant the statements of Mitchell that he did not desire to turn in a claim against his policy for damages to his car.

Mitchell testified that in his first meeting with Swann that Swann told him he would pay him any time he wanted his money. That some time way later, he did make demand on Swann for his money. He did not know when he made this demand and did not know whether it was before or after his settlement with Whitehead.

We should state here that Mitchell instituted suit against Whitehead in Gregg County seeking to recover only for his personal injuries as a result of this collision. This suit was disposed of by settlement in which Mitchell received $3,150.00. The record does not show what date the suit was instituted against Whitehead or the date of the settlement and disposition thereof. It was prior to the filing of the suit by Mitchell against The Millers Mutual Fire Insurance Company of Texas now before us.

Mitchell testified that the accident was entirely the fault of Whitehead and he wanted Whitehead to pay for his damages.

We think the record clearly reveals that whether Mitchell asserted a claim against the appellant for damages to his automobile depended on the disposition of his claim against Whitehead.

The parties entered into the following written stipulation:

“IT IS STIPULATED in this cause by the Plaintiff, Cornelius J. Mitchell, Jr. that he did not file a sworn proof of loss within 91 days after incurring his alleged loss with the Defendant, Millers Mutual Fire Insurance Company of Texas, under the provisions of Policy No. 1265714, issued to Cornelius J. Mitchell, Jr. by the said Millers Mutual Fire Insurance Company of Texas.”

In its first point, appellant says: “The judgment of the Court can not stand at law because the undisputed evidence shows that Appellee did not file a sworn Proof of Loss with the Appellant within 91 days after such loss occurred, which sworn Proof of Loss was a condition precedent to any action upon the insurance policy against the Appellant.” We sustain this point.

The parties having stipulated that Mitchell did not file a sworn proof of loss within 91 days as required by the policy, then the controlling question for this court to determine is whether the evidence adduced on the trial of this case is sufficient to show a waiver by appellant of the provision in the policy requiring appellee to file within 91 days of loss his sworn proof of loss.

The filing of a proof of loss, unless waived, is made a prerequisite to recover upon the policy. McKay v. American Central Ins. Co., 245 S.W.2d 529, (Tex.Civ.App.) 1952, no writ history.

Part III of the policy sued upon is styled “Physical Damage” and reads as follows:

“ACTION AGAINST COMPANY No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy nor, until 30 days after proof of loss is filed and the amount of loss is determined as provided in this policy.
INSURED’S DUTIES IN EVENT OF LOSS In the event of loss the insured shall: (a) Protect the automobile, whether or not loss is covered by this policy, and any further loss due to the insured’s failure to protect shall not be recoverable under this policy; reasonable expenses incurred in affording such protection shall be deemed incurred at the company’s request; (b) file with the company, within 91 days after loss, his sworn proof of loss in such form and including such information as the company may reasonably require and shall, upon the company’s request, exhibit the damaged property and submit to examination under oath.”
And the policy further provides that:
“If the insured and the company fail to agree as to the amount of loss, either may, within 60 days after proof of loss is -filed, demand an appraisal of the loss. In such event the -insured and the company shall each select a competent appraiser, and the appraisers shall select a competent and disinterested umpire. The appraisers shall state separately the actual cash value and the amount of loss and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The insured and the company shall each pay his chosen appraiser and shall bear equally the other expenses of the appraisal and umpire.”

There was no discussion between the parties as to the amount or value of the loss accruing to the appellee or as to whether they could or could not agree on the amount or value of the loss. No appraisal was requested and none was made.

We think the evidence is -insufficient to show that the insurance adjuster Swann by his acts or conduct prevented the insured from filing his proof of loss. Neither does the record show that the insured was misled by any act or omission on the part of the insurer’s representative.

We are of the opinion that taking the entire testimony, as shown from this record, in its most favorable light, it is not shown by evidence of probative force that the appellant waived the provisions of the policy requiring proof of loss to be furnished or that appellee substantially complied with the terms of the policy. Federal Surety Co. v. Smith, 41 S.W.2d 210, (Tex.Com.App.) 1931; Scottish Union & Nat. Ins. Co. v. Clancey, 83 Tex. 113, 18 S.W. 439, 1892; Commercial Union Assur. Co. v. Preston, 115 Tex. 351, 282 S.W. 563, 45 A.L.R. 1016, 1926; Williams v. Bankers Fire And Marine Insurance Co., 277 S.W.2d 742, (Tex.Civ.App.) 1955, writ dismissed; Farmers Mutual Protective Association of Texas v. Thompson, 365 S.W.2d 226, (Tex.Civ.App.) 1963, writ refused, n. r. e.; McKay v. American Central Ins. Co., supra.

The appellant next by its Point No. 2 complains that: “The Appellee effectively settled his claim against the third party tort feasor which destroyed the subrogation rights of the Appellant and Appellee therefore waived his rights under the insurance policy issued by Appellant.” This point should be sustained.

The third party tort feasor in this case was John E. Whitehead. It is undisputed that the appellee settled his cause of action with Mr. Whitehead. It is also undisputed that no payment has been made to the ap-pellee by the appellant under the collision coverage of the insurance policy in question on the date of such settlement.

It has long been the rule that if an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the insurance company’s right of subrogation against the wrongdoer is thereby destroyed. The above principle was announced in Maryland Motor Car Ins. Co. v. Haggard, 168 S.W. 1011, (Tex.Civ.App.) 1914, no writ history, in which the court said:

“ * * * And if the settlement made by defendant in error with the city of Ft. Worth had the legal effect to destroy the plaintiff in error’s remedy of subrogation under the policy, then defendant in error thereby discharged the plaintiff in error from its obligation to pay him to the full extent to which he has defeated the plaintiff in error’s remedy of subrogation. * * *»

For many other cases citing the same principles as are set forth above, see 32 Tex.Jur.2d 701, Sec. 468, 38 A.L.R.2d 1096, and 92 A.L.R.2d 102, 106. The policy contained the following subrogation provision:

“In the event of any payment under this policy, the company shall be sub-rogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”

Moreover, a single wrongful or negligent act or omission causing an injury to both the person and the property of the same individual constitutes but one cause of action with separate items of damages; hence, the cause of action cannot be split, and a recovery of a judgment for either item of damage may be pleaded in bar of an action to recover for the other item of damage. Thus, when the appellee in the case at bar filed his cause of action against the third party tort feasor and did not include an item for property damages and subsequent to that time entered into a settlement this would be the same as a judgment and this settlement would have barred any claim this appellant had under its subrogation rights of the insurance policy in question. Cormier v. Highway Trucking Company, 312 S.W.2d 406, (Tex.Civ.App.) 1958, no writ history; Garrett v. Mathews, 343 S.W.2d 289, (Tex.Civ.App.) 1961, no writ history; 64 A.L.R. 663 and 127 A.L.R. 1081.

Under the record in this case, we think that appellee has failed to establish his right to recover under the policy.

In view of our disposition of this case, it is unnecessary to discuss the other points of error.

Judgment reversed and rendered for appellant.


author: GREEN, Chief Justice.

text:
    PAN AMERICAN COLLEGE, Appellant, v. Dr. Hector R. ROJAS, Appellee.
    No. 111.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 29, 1965.
    Rehearing Denied July 29, 1965.

      Henrichson & Bates, by E. G. Henrich-son, Edinburg, for appellant.
    L. Aron Pena, Edinburg, for appellee.
   GREEN, Chief Justice.

Appellee Dr. Hector R. Rojas, plaintiff below, secured j'udgment after jury verdict against appellant, Pan American College, defendant in the trial court, for damages for breach of employment contract. Motion for new trial was overruled, and defendant has perfected this appeal.

Appellee, a Doctor of Astronomy whose residence is in France, was employed by appellant in September, 1962, by contract to expire May 31, 1963, as Research Associate under Professor Paul Engle in a program of astronomical and astrophysical research. This program, which was conducted by appellant college in Edinburg, Texas, and at its high altitude observatory on Mount Infiernillo, State of Nuevo Leon, Mexico, was sponsored and financed by a grant from the National Science Foundation. Professor Engle was Director of the grant, and controlled the expenditure of the funds.

In June, 1963, appellee’s contract with appellant was renewed by the parties for one year, to be in effect until May 31, 1964. Although appellant questions the existence of sufficient pleadings and evidence of a contract, this matter was definitely settled by a stipulation, hereinafter copied in this opinion, entered into by the parties after the evidence was in and before the preparation of the charge to the jury, and we shall not deem it necessary to discuss at any length any issue as to the existence of such contract.

During the early months of their association, the relationship between Professor Engle and appellee seems to have been satisfactory. In a report by Engle to the National Science Foundation in March, 1963, he spoke most highly of Rojas, saying: “Dr. Hector R. Rojas is deeply involved in this work here and has proved to be a most highly satisfactory research associate.” However, it appears from the testimony that after the renewal of appel-lee’s contract, strong personal animosity developed between the two men. There is much conflicting testimony of the quality and value to appellant of appellee’s services, as well as on the subject of whether ap-pellee acted insubordinately toward his superior, Engle, and refused to accept instructions from him. The evidence conflicts sharply as to Engle being in fact an astronomer qualified to give directions concerning the technical details of the observation project, and it is clear that appellee did not consider him to be such. On September 21, 1963, in reply to a letter from Engle, appellee wrote him stating that he agreed that they should work together to insure the success of the research project, but that “Because you are not astronomer at all and anymore, I will not accept from you any instruction regarding what to do or what not to do in the research project.” Appellee on the stand explained that he did not write that he would not recognize Engle as his superior, or as the director of his department, but that since Engle was not an astronomer, he could not permit him to interfere with appellee’s work as an astronomer. After receipt of this letter, the college authorities not only continued to allow him to go on with his work, but furnished him with a new and better office.

The event that evidently brought on the appellee’s dismissal from employment happened on October 25, 1963. A fight occurred just outside of appellee’s office between Rojas and Engle, in which blows were struck by both parties and both were knocked to the ground. There were no known eye witnesses to the fight other than the participants, and each gave an entirely different version as to the details of the beginning of the struggle, and as to which was the aggressor and which was merely acting in self-defense. The statement of facts contains testimony from an adult student that Engle’s reputation for truth and veracity was bad.

Shortly after the fight, Engle insisted to the college president that appellee be dismissed, and this was done. The dismissal was confirmed by the Board of Regents. The law suit followed.

At the conclusion of the evidence, the parties to the case entered into a stipulation of facts as follows:

“1. That Plaintiff and Defendant did enter into an employment contract for one year, beginning June 1, 1963, and ending May 31, 1964, and for which Plaintiff was to receive a salary of $8,-000.00, for his professional services.
“2. That a term of said contract was that Plaintiff receive from Defendant travelling expenses for himself in returning to France in the sum of $434.-00.
“3. That Plaintiff was dismissed from employment on October 31, 1963, and a balance of $4,666.64 would still be owing on Plaintiff’s annual salary, unless Defendant had just cause to dismiss Plaintiff on said date.”

The case was submitted to the jury on a single issue, as follows:

“Do you find from a preponderance of the evidence that Pan American College had just cause for the dismissal of Dr. Hector R. Rojas on or about the 1st day of November, 1963?”

To which the jury answered: “IT DID NOT HAVE JUST CAUSE.”

By agreement of counsel for both parties, and under the provisions of Rule 269, Texas Rules of Civil Procedure, since the burden of proving the affirmative of the special issue was assumed, without objection, by appellant, its counsel were given the right to open and close the jury argument.

Judgment was rendered favorable to ap-pellee for $5,100.64, being the total of the unpaid salary and travelling expenses set forth in the agreed facts. Appellant’s motion for new trial was overruled, and it has appealed. We affirm the judgment.

Appellant presents this appeal on seven points. The first six are based on error alleged to have been committed by the trial court in overruling appellant’s motion for instructed verdict. The record, even when we include the supplemental transcript filed by appellant with leave of the court and agreement of attorney for appellee containing an affidavit of appellant’s attorney and a statement of the trial judge, reflects that the instrument designated “Defendant’s Motion for Instructed Verdict” was not dictated or prepared in court prior to the submission of the charge, but was for the first time prepared and filed with the district clerk four days after the judgment was signed by the judge. Counsel’s affidavit and the judge’s statement, taken together, do reflect that after the court and the attorneys for both parties had agreed on the issue to be submitted to the jury, defense attorney stated in open court that he would like to file a motion for instructed verdict, to which the judge replied that he would consider it filed and overruled. It is not shown that any specific grounds for such motion were stated on the occasion, as is required of a motion for instructed verdict by Rule 268, T.R.C.P. No efforts were made to prepare or dictate, in the presence of court and adverse attorney, any motion, nor was any bill of exception taken to the words or the action of the trial judge. There is nothing in the record to indicate that the motion containing the specific grounds was ever presented to the trial judge, or ruled on by him. Under such circumstances we are without authority to consider the instrument as a motion for instructed verdict presented to and overruled by the trial judge before verdict. Rule 268; Home Insurance Co. of New York v. Dacus, Tex.Civ.App., 239 S.W.2d 182; Dyer v. Hardin, Tex.Civ.App., 323 S.W.2d 119, writ ref. n. r. e.; Green v. Evans, Tex.Civ.App., 362 S.W.2d 377. In addition, since it is not indicated that any notice of the filing of this instrument was given adverse counsel, and because it was not presented to or ruled upon by the court after being filed, it cannot be treated as a motion for judgment notwithstanding the verdict. Rule 301, T.R.C.P.; Wilton v. Johnson, Tex.Civ.App., 278 S.W.2d 488; Timmons v. Fogle, Tex.Civ.App., 278 S.W. 2d 549; Brown v. Halfin, Tex.Civ.App., 294 S.W.2d 290.

Hence, there is no basis for predicating any points of error on an assignment that the trial court erred in overruling a motion for instructed verdict. Nevertheless, giving the points of error a liberal construction, we do feel that questions may be raised in them and should be discussed by us of no evidence and insufficient evidence to support the jury verdict, and as to whether, considering all of the pleadings, evidence, and stipulation of counsel, appellant was as a matter of law entitled to judgment in his favor. We shall also consider appellant’s seventh point in so far as it raises the proposition that the verdict of the jury is contrary to the overwhelming preponderance of the evidence.

Much of the evidence has already been summarized. There is a distinct disagreement in the testimony on the subject of whether or not appellee was guilty of insubordinate actions toward his superior, Professor Engle, and a fact issue exists on this. Personal conflict existed between them even before the contract was renewed in June, 1963. According to appellee, he offered to resign and return to France on June 24, 1963, and was reluctant to accept an appointment for another year, but was persuaded to do so by officials of appellant. Whether the professional independence of an astronomer in his celestial observations and reports can be regarded as sufficiently insubordinate to justify cancellation of an admittedly valid contract became, in this instance, a question of fact on conflicting evidence.

Appellant on appeal seeks to justify its alleged breach of the contract on the proposition that the Board of Regents had authority by statute (Art. 2619a, Sec. 7, Vernon’s Ann.Tex.Civ.St.) to remove appellee as an employee when in its judgment the interests of the College shall require it. Appellant contends that appellee had the burden of pleading and proving that the Board of Regents abused their discretion in discharging plaintiff, or acted arbitrarily and capriciously in such discharge. We feel that the negative of this would constitute a defensive issue, required to be plead and proved by defendant in the trial court, and is not available when raised, as here, for the first time on appeal. We further are convinced that any such contention as is thus made by appellant was waived when it stipulated that a certain sum would be owing appellee “unless Defendant had just cause to dismiss Plaintiff on such date”, and assumed the burden of proof on such issue.

Furthermore, there is no evidence that before discharging appellee the Board of Regents reached any judgment that the interests of the college required the removal of appellee. (Art. 2619a, Sec. 7) The testimony appears to reflect that appellee was discharged to satisfy the demands of Professor Engle who, as Director of the grant, controlled the expenditure of the funds. In this connection Dr. Schilling, President of the College, testified:

“Q Did you subsequently tell Dr. Rojas that he was relieved of his duties ?
A Yes, later. I don’t know the exact day of the week, but not an immediate thing. Some thinking went into it, and of course, talking with Mr. Engle. I think something should be brought out here, that Mr. Engle is the Director of the grant. We can not write a check at the college on this grant unless Mr. Engle approves it. He has to place a purchase order with us with his approval before we can write a check on the grant. Although, we have the bookkeeper, and Mr. Sawyer is our comptroller, Mr. Engle informed me that he would not approve other checks for Mr. Rojas. He also informed me that he would not go to Infiernillo with Mr. Rojas, and Mr. Rojas could not operate the instruments there unless he had some instructions from Mr. Engle. On the basis of this, of course, we informed Mr. Rojas, in front of witnesses, we had witnesses present, that his position with the college was terminated. That we would make a recommendation to the Board, as such we did.
Q And, the Board conformed the recommendation ?
A Yes, sir.”

From such testimony, we are unable to find as a matter of law that appellant had good cause to cancel out the contract between it and appellee, and discharge appellee, without incurring liability for appellee’s lawful damages.

The trial judge, in his statement included in the supplemental transcript filed by appellant, made the following statement:

“As I recall, either at the close of Plaintiff’s case, or at the close of the Defendant’s case, Court and Counsel retired to my chambers and we discussed what possible issues there were in the case and came to the unanimous conclusion that the issues submitted in the Charge was the only issue that should concern the jury.”

The issue submitted to the jury was taken from the last paragraph of the stipulation entered into between the parties. The form of the issue has been approved as a sufficient presentation of the controlling fact question in a breach of employment contract case. Jay-Kay Paint Manufacturing Company v. Carter, Tex.Civ.App., 281 S.W.2d 453, writ ref. n. r. e.; Dixie Glass Co. Inc. of Houston, Texas v. Pollak, Tex.Civ.App., 341 S.W.2d 530, 91 A.L.R.2d 662, writ ref. n. r. e. by written opinion of Supreme Court, 162 Tex. 440, 347 S.W.2d 596. It would have been much better had a definition of the term “just cause” been included, and if appellant had objected to the failure to include a definition, and furnished the court with a legal definition of the term, reversible error would have been committed provided the trial court refused to give such definition. Dixie Glass Co. Inc. v. Poliak, supra. But since appellant accepted the issue as given, filed no objection to the charge, and made no request that a definition be furnished the jury, it is too late to make such objection in this court. Rule 279, T.R.C.P.; Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312; Kiel v. Mahan, Tex.Civ.App., 214 S.W.2d 865, writ ref. n. r. e.; Sunset Motor Lines v. Blasingame, Tex.Civ.App., 245 S.W.2d 288; Borho v. Austin Laundry & Dry Cleaning Co., Tex.Civ.App., 260 S.W.2d 110, writ ref. n. r. e.

Appellant’s seventh point of error reads as follows:

“The Trial Court erred in rendering judgment on the verdict of the jury for the reason that the jury’s answer to Special Issue No. 1 was not supported by the evidence, but is so contrary to the overwhelming preponderance of the evidence as to show that the same was based upon prejudice and that a manifest injury has been done.”

When we consider the stipulation of the parties, which is not mentioned in appellant’s brief, along with all of the evidence, we do not agree that the verdict of the jury is contrary to the overwhelming preponderance of the evidence, and overrule this point.

Under the seventh point of error, appellant in his brief discusses the proposition of jury misconduct. We do not believe that the subject of jury misconduct is raised by the point of error sufficiently to authorize us to consider it. However, we have read the statement of facts of the testimony introduced at the hearing on the motion for new trial, and have found no reversible error in the order of the trial court overruling the motion for new trial. Browley v. Bowen, Tex.Sup.Ct, 387 S.W.2d 383.

In view of the stipulation of the parties, the existence of conflicting evidence raising issues of fact as to whether appellant had just cause to cancel the contract and dismiss appellee, and the absence of any objections to the charge and of any requested definitions or special instructions, we find no reversible error in the trial court’s entry of the judgment appealed from.

The judgment of the trial court is affirmed.

       Emphasis ours.


author: MURRAY, Chief Justice.

text:
    STEEL ERECTION COMPANY, Inc., et al., Appellants, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 14347.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1965.
    Rehearing Denied July 21, 1965.

      Earle Cobb, Jr., San Antonio, for appellants.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a suit for breach of an insurance policy wherein the insured contend that the insurer failed to discharge its duty of furnishing them with a defense of a damage suit filed against them, which presents a rather complicated situation, therefore, a full explanation of all the facts is necessary.

The names of the litigants herein involved, and the manner in which they will hereinafter be referred to, are as follows: H. H. Higdon — “Higdon,” Steel Erection Company, Inc., — “Steel,” Travelers Indemnity Company — “Travelers,” Thomas P. Sullivan, d/b/a D. J. Sullivan Erection Company, — “Sullivan,” Judson H. Phelps —“Phelps,” Employers Mutual Fire Insurance Company of Wausau — “Employers.”

This controversy began when Sullivan, as plaintiff, instituted a suit in the 45th Judicial District Court of Bexar County, against Higdon, Steel, Phelps and Employers, alleging that on or about October 10, 1963, Higdon and Steel rented a Bay City Motor Crane from Sullivan, to be used on a project known as the LaSalle High School, Phelps being the general contractor on the project; and while the crane was in the possession, control and under the direct supervision of the defendant Phelps and Higdon, acting through their agents, servants and employees, they negligently and carelessly operated such crane and thereby damaged it. Employers was made a party to this suit as the insurance carrier of Sullivan.

When Higdon and Steel were served with citation in this suit they called upon Travelers to defend them, which Travelers refused to do upon the ground that there was an exemption clause in the insurance policy issued by it, which exempted equipment which was in the possession and under the supervision and control of Higdon and Steel, and that the allegations of plaintiff’s petition showed that the crane when damaged was under such exclusive control.

Higdon and Steel then employed Earle Cobb, Jr., Esq., to defend this lawsuit for them, which he at once undertook do. After some maneuvering in court, Sullivan filed an amended petition in which he dropped Higdon and Steel as defendants, and Employers filed a third party action against Higdon, Steel and Travelers, seeking subrogation upon the theory that the crane at the time it was injured was being operated by Sullivan and his employee as an independent contractor. When this pleading was filed Travelers wrote a letter to Higdon and Steel, stating that due to the allegation of independent contractor, on the part of Sullivan, it was of the opinion that there might probably be coverage under its policy of insurance, and offered to defend the suit. In the meantime Higdon and Steel had filed a third party action bringing Travelers into the suit. After much negotiating, Higdon and Steel offered to permit Travelers to defend the lawsuit, provided Travelers would extend to them full coverage under its policy. This Travelers refused to do. On motion of Travelers, the judge of the 45th District Court severed from the damage suit the controversy between Travelers and Higdon and Steel, and further provided that the findings of the judge or jury in the original damage suit should not be binding in any way upon these parties.

However, it is apparent that there was a conflict of interest between Travelers, on the one hand, and Higdon and Steel, on the other, because should the trier of facts in the damage suit find that Sullivan was operating the crane at the time it was injured, as an independent contractor, there would be coverage under Travelers’ policy. On the other hand, if the finding was that the crane was in the exclusive possession and control of Higdon and Steel at the time it was injured, there would be no coverage, due to the exemption clause (L) of the Travelers’ insurance policy. While these conditions existed, the damage suit went to trial, with Earle Cobb, Jr., defending for Higdon and Steel, and resulted in the jury finding that the crane was not in possession and under control of Higdon and Steel at the time it was damaged, and that the damage was not caused by the neglect of Higdon and Steel. As a result of these findings, along with other findings, judgment was entered to the effect that Sullivan take nothing as against Higdon and Steel. Thus the question of liability for the damage to the crane became unimportant, so far as Higdon, Steel and Travelers were concerned. However, the question as to who should pay the attorney’s fees of Cobb remained.

Higdon and Steel filed a motion for summary judgment against Travelers for the sum of $3,285.00, alleged to be the amount of attorney’s fees they had been required to expend in defense of the Sullivan suit. At the same time, Travelers presented a motion for summary judgment asking the court to render a take-nothing judgment against Higdon and Steel. The court "had before it the pleadings of the parties, certain depositions, admissions, affidavits and stipulations. The parties, by stipulation, divided the attorney’s fees into three categories. First the sum of $630.00 expended by Hig-don and Steel in defense of the Sullivan suit prior to April 15, 1964, at which time Travelers first offered to defend the suit. Second, the sum of $1,710.00 expended by Higdon and Steel in defense of the Sullivan suit, subsequent to April 15, 1964; and third, the sum of $945.00 incurred by Hig-don and Steel in the prosecution of their cross-action and third party suit against Travelers. It was further stipulated that these sums were reasonable and necessary.

It was the contention of Higdon and Steel that Travelers breached its insurance policy by refusing to defend the Sullivan suit, and Travelers contended that Higdon and Steel breached the provisions of the insurance policy by refusing to permit it to defend the suit after April 15, 1964. The trial court entered judgment permitting Higdon and Steel to recover the $630.00 for attorney’s fees in the first category, but refused them any recovery of attorney’s fees stipulated in the second and third categories, from which judgment Higdon and Steel have prosecuted this appeal.

Higdon and Steel assign as error the action of the court in denying them the sum of $1,710.00, stipulated as attorney’s fees in the second category, and the sum of $945.00, stipulated as attorney’s fees in the third category. While Travelers, as appellee, by cross-assignment of error contends that the court erred in allowing appellants to recover the $630.00 stipulated in the first category. This sum was the amount of attorney’s fees expended by Higdon and Steel prior to April 15, 1964, in defense of the Sullivan suit. We conclude that the trial court erred in awarding this sum to Higdon and Steel, because Travelers was justified in refusing to defend the lawsuit prior to April 15, 1964. The pleadings in the Sullivan suit clearly alleged that the crane was in the exclusive possession and under the control and management of Higdon and Steel at the time it was damaged, and such damage was clearly excluded from coverage by the insurance policy under paragraph (L). Travelers had a right to rely upon the facts alleged by Sullivan in his petition and the provisions of its insurance policy in determining its duty, vel non, of defending the lawsuit. As long as these pleadings remained unchanged, Travelers owed no duty to Higdon and Steel to defend them in this lawsuit. U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., Comm.App., 34 S.W.2d 815; Maryland Cas. Co. v. Knorpp, Tex.Civ.App., 370 S.W.2d 898, ref., n. r. e.; Travelers Ins. Co. v. Newsom, Tex.Civ.App., 352 S.W.2d 888, ref., n. r. e.; Maryland Cas. Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, err. ref.

The situation is different with reference to the attorney’s fees in the sum of $1,710.00, set forth in category two. This represents the amount of attorney’s fees necessarily expended by Higdon and Steel in the defense of the Sullivan suit subsequent to April 15, 1964, on which date the pleadings had been amended and contained an allegation that the crane was being operated by Sullivan as independent contractor, under which circumstances Travelers would be required to defend Higdon and Steel, which it offered to do, but this was refused by Higdon and Steel, because of the conflict of interest between them and Travelers. Where the insurer is denying coverage, but at the same time demanding the right to defend the lawsuit on behalf of the insured, and where coverage, vel non, will depend upon the finding of the trier of facts as to certain issues in the main case, which here is the question of whether the crane at the time it was damaged was being operated by Sullivan as an independent contractor, or by Higdon and Steel under a bailment agreement, the insurer is not in a position to defend the insured. Travelers was confronted with the situation that it must acknowledge coverage and thus eliminate the controversy between it and Higdon and Steel, or stand upon its contention that there was no coverage. By its action in denying full coverage, Travelers brought itself in a position where it could not properly represent Higdon and Steel. Travelers chose not to admit full coverage, and thus Higdon and Steel had a right to be defended by Earle Cobb, Jr., an attorney of their own selection. Travelers not being in a position to defend the lawsuit, due to its conflict with Higdon and Steel, it is liable for the $1,710.00 expended for attorney’s fees, as stipulated in the second category. Great American Indemnity Co. v. City of Corpus Christi, Tex.Civ.App., 192 S.W.2d 917, ref. n. r. e.; American Fidelity & Cas. Co. v. Williams, Tex.Civ.App., 34 S.W.2d 396; Appleman Ins. Law & Practice, Vol. 7A, p. 472, § 4686. In Shehee-Ford Wagon & Harness Co. v. Continental Cas. Co., La.App., 170 So. 249, 251, the Court said:

“The entire record in the prior suit, which is a part of the record in this proceeding, and the progress of the case which we have endeavored to above outline, graphically reveal that the insurer’s primary purpose in defending the action was to free itself of liability, irrespective of the fate that might befall the insured. It is true that it presented the defense of independent con-tractorship for the insured in the various courts which considered the case; but it is likewise true that such insurer would have escaped liability had that defense been finally sustained. And, while defending on that ground, insurer was also seriously urging that it was not liable under the policy, even though the insured might be liable to Jones. It appears to us that these defenses, -in so far as insured was concerned, were inconsistent, one with the other. It was the duty of the insurance company to either deny its obligation to the insured and rely on that defense, or to recognize the policy as being in full force and effect and give to insured its undivided support.”

This brings us to a consideration of the attorney’s fees stipulated in the third category. The sum of $945.00 represents the amount of attorney’s fees expended by Higdon and Steel in attempting to compel Travelers to furnish them a defense of the Sullivan suit. Travelers is not in any way responsible for these attorney’s fees, and the trial court properly refused judgment for this sum. Traders & General Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142; Appleman Insurance Law & Practice, Vol. 7A, pp. 509-510, § 4691.

The judgment of the trial court will be changed from the principal sum of $630.00 to the principal sum of $1,710.00, and as thus changed and amended, the judgment is affirmed.


author: DENTON, Chief Justice.

text:
    DIAL FINANCE & THRIFT COMPANY et al., Appellants, v. Lillian M. DENNIS, Appellee.
    No. 7472.
    Court of Civil Appeals of Texas. Amarillo.
    May 31, 1965.
    Rehearing Denied June 28, 1965.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellants.
    Connally Lockhart and Henry Ray, Amarillo, for appellee.
   DENTON, Chief Justice.

Lillian M. Dennis brought suit against Dial Finance & Thrift Company of Amarillo and Bernard Justus, its local manager, to recover money fraudulently collected by the defendants; for unreasonable collection methods; and for usurious interest. The case was submitted to the jury on the issue of fraudulent collection of money and exemplary damages. The trial court, after finding the plaintiff suffered uncontroverted and liquidated actual damages of $68.58, entered judgment for that amount and awarded plaintiff $3,250.00 exemplary damages.

In December of 1959 Mrs. Dennis and her husband, Leonard Dennis, signed a note in the amount of $900.00 payable to the appellant finance company in eighteen monthly installments. A chattel mortgage was taken on the Dennis furniture. The Dennises were divorced March 30, 1960, and it was agreed that Mr. Dennis would pay off the note. After the divorce Mrs. Dennis decided to move to Santa Fe, New Mexico. On May 28, 1960, she informed Justus of this fact, and received his permission to take the furniture with her with the understanding Mrs. Dennis would make the payments if her former husband failed to do so. In the meantime Mr. Dennis had made six payments totalling $250.00. In the latter part of July Dennis and Justus discussed the note and on July 27, 1960, Dennis mailed a check to the appellant company in the amount of $550.00 with the notation “Acct. in full” placed on the check. Appellants timely received and accepted the check. Dennis testified this payment was made when Justus told him “he would accept $550.00 in full settlement of this account.” Mrs. Dennis testified that a few days later, on or about August 1, 1960, Justus called her at the place of her employment in Santa Fe and informed her there was a balance due of $100.00 and demanded that she pay. During a second telephone conversation with Justus she related that he agreed to settle the claim for $68.58. Mrs. Dennis paid this amount on August 10, 1960. Prior to the time this payment was made Mrs. Dennis testified she was contacted by telephone by a Mr. Elliott, the manager of a Santa Fe loan company, in behalf of appellants. He too demanded payment. Mrs. Dennis then sold her deep freezer and paid the $68.58 to cancel the note.

In response to special issues the jury found (1) Justus agreed to settle and discharge the note upon payment of $550.00 by Leonard Dennis; (2) that Justus subsequently represented to Mrs. Dennis that the note was unpaid; (3) that said representation was fraudulently, maliciously, and wilfully made; (4) that Mrs. Dennis relied on the representation; and (7) that Mrs. Dennis was entitled to $3,250.00 exemplary damages. No special issues were submitted on appellee’s allegations of usury or unreasonable collection efforts.

Appellants’ first group of points of error contend the trial court erred in making a finding that appellee sustained actual damages in a jury case in violation of Rule 279, Texas Rules of Civil Procedure, and in rendering judgment for the amount so found in the absence of a jury finding. The record reflects that appellee did not request an issue on actual damages or the amount thereof. After reciting that the jury verdict awarded appellee a recovery a $3,250.-00 for exemplary damages, the court’s judgment provided:

“and it being the further opinion of the court, based upon the findings of the jury in the special issues and charge on file in this cause, which findings have been received by the court and filed and entered of record, that the plaintiff, Lillian M. Dennis, herein, in addition to the damages found and assessed by the jury in its verdict, is entitled to and should recover judgment of this court for actual damages, uncontroverted and liquidated, in the amount of $68.58.”

It is well settled that exemplary damages may not be recovered unless the plaintiff is shown to have sustained actual loss or injury. 17 Tex.Jur.2d, Damages, Section 177, and the numerous authorities cited therein; 17 A.L.R.2d 257. Thus, whether or not Mrs. Dennis suffered actual damages is an ultimate issue and is a prerequisite to the recovery of exemplary damages. The question then is whether or not the issue of actual damages was one the trial court was justified in not submitting to the jury and making an independent finding thereof.

Plaintiff’s cause of action as submitted was one to recover money fraudulently collected by defendants. It was based on the theory of accord and satisfaction and fraudulent representation. In the absence of a finding of fact that the defendants agreed to settle and discharge the note by the $550.00 payment, there would have been an amount due on the note. That is to say, whether or not appellee and her husband did in fact owe on the note depended on whether or not the note had been settled and discharged. It is uncontroverted the full amount of the note had not been paid. Whether or not the note had been settled and discharged was a question of fact and the trial court so considered it. We agree that the amount of actual damages that appellee suffered, if any, was liquidated. It is admitted Mrs. Dennis paid appellants $68.-58, and if she and her husband owed them nothing, this is the amount of damages she actually sustained. The jury verdict constituted a finding appellee did in fact sustain an actual loss. The amount of such loss was the amount she paid after the note was settled and discharged. This amount was liquidated and is not controverted by the evidence. It is not incumbent on the trial court to submit special issues on questions about which there is no controversy. National Security Life & Casualty Co. v. Benham, (Tex.Civ.App.), 233 S.W.2d 334, (Refused, NRE). In such cases the trial court may render an independent finding where the evidence of such issue is uncontroverted and susceptable of only one answer. Ft. Worth & D. C. R. Co. v. Jenkins, (Tex.Civ.App.), 42 S.W.2d 267; Ingle v. Nicola, (Tex.Civ.App.), 15 S.W.2d 129; Lone Star Life Ins. Co. v. Kunath, (Tex.Civ.App.), 322 S.W.2d 673. Appellants’ first eleven points of error are overruled.

Appellants next attack the trial court’s judgment on the ground there is no evidence to support the jury verdict. After finding the appellants agreed to settle and discharge the note upon the payment of $550.00 by appellee’s former husband, the jury found appellants’ representation to ap-pellee that the note was not paid was fraudulently, maliciously and wilfully made. This is the only basis upon which the recovery of exemplary damages can be supported. The charge to the jury contained the following definition and special instruction:

“In connection with the above and foregoing Special Issue, you are instructed that a ‘malicious act’ is defined as ‘a wrongful act intentionally done without legal justification or excuse; an unlawful act done willfully or to injure another’.”
“ * * * you are instructed that exemplary damages may be assessed as punishment for a wrongful act done, if any. In awarding such damages, if any, you may consider mental distress and suffering, if any, of the plaintiff; the sense of wrong and insult, if any, to which Plaintiff was subjected as a result of the wrongful act, if any. The amount to be fixed, if any, is in the sound discretion of the jury.”

In Ware v. Paxton, Tex., 359 S.W.2d 897, the Supreme Court again quoted with approval the following excerpt from 25 C.J.S. Damages § 123, Page 726:

“ ‘The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.’ ”

We must therefore determine if there is any evidence to support the jury finding of malice and exemplary damages in the light of this statement of the law. This question must relate only to the cause of action submitted, that is, the alleged fraudulent collection of money. Thus, the question of whether or not there is any evidence to support the jury finding of malice and exemplary damages must be confined to this issue only.

Appellant Justus’ representation is shown only by Mrs. Dennis’ testimony. She testified Justus called her by long-distance telephone on or about August 1, 1960, which was three days after Mr. Dennis paid $550.00 on the note. She related the conversation as follows:

“He said that Leonard came in and gave him a check for $500.00, and that there was a balance left of $100.00 and he wanted to know if I could pay that $100.00. I said I couldn’t pay it because I had just got out of the hospital, and that that was my first day back to work. And he asked me if I couldn’t borrow it from my brother-in-law or some relative and I said, ‘No, I couldn’t.’ And he told me to think it over and that he would call me back in a couple of days, or he would have to pick up my furniture.”

After testifying he called her again a few days later, she described his conversation:

“He wanted to know if I could get the money, and I told him I still couldn’t pay a couple of hundred dollars. And he said, ‘well, I will give you a break,’ he said, ‘rake up $68.58’.”

She added in response to a direct question:

“Well, he said that if I couldn’t pay the $68.58 that he would have to pick up my furniture within two weeks.”

Mrs. Dennis had no further conversation with Justus; but Elliott of a Santa Fe finance company did contact her by phone in behalf of appellants. He inquired if she could borrow the money, and after being told she could' not, he informed her the furniture would be picked up in two weeks if she could not pay. She paid the amount of $68.58 on June 10, approximately ten days after Justus first contacted her. This is all of the evidence presented either on the matter of fraudulent representation or on unreasonable collection methods. After a careful consideration of this record, we conclude that there is no evidence to support the jury finding of malice or exemplary damages. The representation came in Jus-tus’ first telephone call. By Mrs. Dennis’ own testimony he informed her of her former husband’s large payment although she stated he told her it was a payment of- $500.-00 rather than $550.00. There was no extended campaign of harassment and intimidation often found in this type of case. Neither was there any evidence of abusive language. The whole transaction took place within a period of ten days. Even though it may be said the representation was made that the note was unpaid, the most that can be concluded is that the representation was wrong. This is not a sufficient basis for an award of exemplary damages. Ware v. Paxton, supra. The action complained of must be “wanton and malicious” or “as sometimes said, somewhat of a criminal or wanton nature.” We think the facts as reflected in this record fall far short of this well-settled rule of law. We therefore conclude, and so hold, there is no evidence to support the jury finding of malice and the award of exemplary damages.

Because of the disposition of this case, we do not deem it necessary to pass on the other points of error.

The judgment of the trial court is therefore affirmed as to the award of $68.58 actual damages, but reversed and rendered as to the award of $3,250.00 exemplary damages.


author: HIGHTOWER, Chief Justice.

text:
    SINCLAIR OIL & GAS COMPANY, Appellant, v. J. A. ADAMS et al., Appellees.
    No. 6635.
    Court of Civil Appeals of Texas. Beaumont.
    June 10, 1965.
    Rehearing Denied June 30, 1965.
    Second Motion for Rehearing Denied July 21, 1965.
    Orgain, Bell & Tucker, Keith, Mehaffy & Weber, Beaumont, for appellant.
    Clark, Thomas, Harris, Denius & Winters, Austin, Mary Joe Carroll, Austin, of counsel, Ward W. Markley, Glenn Faver, Jasper, for appellees.
   HIGHTOWER, Chief Justice.

Two separate suits, one by H. W. Mat-tox and the other by J. A. Adams and D. M. Henderson, were brought against Sinclair Oil & Gas Company and L. V. Mus-grove seeking to recover damages for destruction of and injury to said plaintiffs’ timber and pine seedling trees as a result of a fire which allegedly spread from a tract upon which Sinclair was operating a gas well to lands owned by the plaintiffs. Sinclair cross-acted against Musgrove for contribution and indemnity. Subsequently, the two suits were consolidated and tried together upon proper motion and order of the court. The court instructed a verdict in favor of Musgrove against all the parties, and the jury found in favor of all plaintiffs against Sinclair. Hence, this appeal by Sinclair.

Liability of Sinclair was established by affirmative answers of the jury to the following issues:

1. “Do you find from a preponderance of the evidence that the fire of February 12, 1961, made the basis of this lawsuit, started because of the defendant, Sinclair Oil & Gas Company’s, operation of its gas well * * *p»
2. (Predicated on affirmative answer to No. 1) Sinclair failed to encircle the gas well with a fire lane before the fire ?
Additionally the jury found (Issue No. 5) that Sinclair, under all the facts and circumstances then and there prevailing, failed to keep a proper lookout over its gas well properties.
Issue No. 8 (predicated on affirmative answer to Issue No. 1) that Sinclair or its agents, servants or employees permitted a fire to get under way from their gas well properties.
Issue No. 11 that Sinclair’s operation of the gas well, under all the facts and circumstances then and there prevailing, created a fire hazard and (No. 12) Sinclair, its agents, etc., failed to provide or exercise proper control over said fire hazard.

The corollary issues, of negligence and proximate cause, to the primary special issues, above, were also answered affirmatively by the jury.

The very crux of this lawsuit hinges upon the question of whether or not the fire in question was occasioned by or from the operation of certain equipment on Sinclair’s lease as referred to in Special Issue No. 1 hereinbefore set out. We first treat Sinclair’s points of error which assert there was no evidence that it caused the fire as found by the jury in answer to Special Issue No. 1, hence the error of the trial court in overruling its motions for instructed verdict made when plaintiffs rested and again at the close of all evidence. In keeping with our duty we have diligently searched the record for all probative evidence favorable to the appellees and have found none. We set forth'the substance of the pertinent evidence:

All tracts of the appellees’ lands lay in a northeasterly direction from Sinclair’s location, the Mattox and Henderson tracts being adjacent thereto. The fire occurred early on a Sunday afternoon in February, the exact time not being known. No witness saw the fire when it began. L. V. Musgrove, the first witness to observe the fire, had driven to the Sinclair lease that Sunday morning to repair a pump connected to a piece of equipment identified as an LTX Unit. He had been working 30 minutes to an hour when he first became aware of the fire. He was sitting on a small stool facing northeast, at the northeast corner of said unit, such position being on the far side of the unit from that on which the fire started. There was a strong southwest wind of 18 to 20 miles per hour.- His attention was drawn to the fire when he first smelled smoke and turned around and looked behind him to the southwest. He then observed that the fire was between 75 and 150 yards inside the timberline to the southwest of him in a semi-circle, 75 to 150 yards long. (All other witnesses testifying had arrived at the scene later.) Another piece of Sinclair equipment, known as a heater-treater, was located approximately 185 feet south of the LTX unit on which Musgrove was working. (Appellees’ basic contentions throughout the trial and here are that by some means or manner fire or sparks from this heater-treater was the cause of the fire.) The wind was blowing about 20 miles per hour from the southwest, or from the direction of the heater-treater, toward Mr. Musgrove. When he first saw the fire it was about 3 or 4 feet high. Upon discovering the fire, Musgrove immediately left the scene to report it. He did not go to the far side of the heater-treater to determine if there was any fire on that side of it from him. He testified:

“Q. All right. Now then I believe that you testified that you left when you saw the fire here in this area ? Would you say the fire was approximately 100 yards from you?
A. Well, Mr. Faver—
Q. Would you say approximately?
A. It would be approximately. It could be 75 to ISO yards to the best of my judgment.
Q. All right. If it’s 50 yards from the L.T.X. to the heater treater—
A. It would he about another 50 yards then to where the fire was.
Q. About another 40 to 50 yards to where the fire was ?
A. Right.”
% íjí íjí
“Q. Had it gotten, when you first saw it, and as the fire was coming toward you pushed by this wind, had it gotten to any part of the premises of this oil well or this gas well site ?
A. No, it was between the gas well site and those woods where I saw it.”

Thus, appellees can find no comfort in Mus-grove’s testimony that the fire was due to Sinclair’s operations. He did not establish that the fire was even on the Sinclair lease when he first saw it. He could not say, nor could any other witness, that a fire was burning within the heater-treater on the day or time in question.

Dixon Cobb arrived at the scene about the same time as fire trucks, about 3:00 p. m., and worked at putting out the fire. He testified to the location of a creek in the near vicinity to the west of the Sinclair lease and that there was no evidence of the fire coming from the west across said creek; no evidence of fire coming from the south; the main volume of the fire went northeast:

“A. It got hotter and that caused the wind to blow or something — I don’t know the fire was ten or twelve foot high after it got over the hill. It burned the tops out of them pine trees. It burned so fast the bulldozer couldn’t get around it. They’d have to keep pulling off to one side.”

On cross-examination, after Cobb had testified that the various pieces of Sinclair equipment were painted with aluminum paint, he was asked why they had not been scorched after a 5 to 40 foot flame had eome through the lease. He replied:

“A. Well, now it wasn’t that high there. That’s where it started. It got high when you left there, when the wind caught it. It got up to the pine timber when it got high.”

He also made the observation that the fire was back burning from the well against the wind slowly. As to whether the heater was burning at the time of the fire, he didn’t know. He testified that it was not in operation the Thursday before the fire, and did not know whether it was in operation on Friday, Saturday or Sunday, the day of the fire. He said that when it was not in operation he could hear gas loudly blowing from it.

Fire Chief Zager also testified that he did not see any fire immediately south of the well site. Zager admitted that the fire was already burning heavily when he arrived. In regard to the heater-treater, he testified:

“Q. When you got down behind where was the fire?
A. There wasn’t any fire that low down sir.
Q. Where was the fire ?
A. Just below the heater—
Q. Just below the heater treater?
A. Yes sir, heater treater.
Q. All right. Did you check to see and, in your opinion, did the fire burn up close to the heater treater?
A. Well, actually, I didn’t go in there. No sir.”

Appellee Mattox also arrived at the scene of the fire shortly after the fire fighting units. He testified:

“Q. It was a good while, I guess, before you went down in there around the well?
A. Well it was — might have been twenty minutes. I didn’t go down there until this unit come up and unloaded. I got him to go on down there and I went on down there.
Q. By then had the fire already burned past the well and unit?
A. Why sure. That’s where it started from, had to burn past it."

Leslie Sellers, district superintendent for Sinclair, testified that all the area around a slush pit on the well site had been burned and that he found no evidence of fire west of the creek referred to in the testimony of Dixon Cobb hereinabove. He conceded that the fire must have originated somewhere in the area of the well.

Essentially, appellees rely on circumstantial evidence to sustain the finding of the jury as to the cause of the fire and, given a proper state of facts, such right cannot be denied. Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. Their chief contention being that, although at the time the fire was first discovered there was a strong southwest wind blowing directly toward the well site, the jury had the right to assume as a matter of common knowledge (and we quote.from their brief) “that the fire was spread by the gas, first to the south, southeast, or east, and that then, with a change of wind direction, the fire turned to the north and northwest as it was approaching when Musgrove first observed it.” Such contention is argued with commendable ingenuity but it is completely conjectural. Most of the witnesses testified that the well site was not free of dead grass, which could have caught on fire but there is no probative evidence in the record that it did, as a result of Sinclair’s operations, and subsequently spread to the appellees’ property. No witnesses testified that there had been a change of wind direction prior to the fire. No witness even testified that the heater-treater unit was in fact burning on the day of the fire. The record reflects that the fire finally burned across the well site but there is no probative evidence that the fire started on the same or by reason of Sinclair’s operations. As hereinbefore noted, Dixon Cobb and appellee Mattox made the bald assertions that the fire did start at the well site. And we again observe that Sinclair’s district superintendent, Leslie Sellers, conceded that the fire must have originated somewhere in the area of the well.

The combined tetimony of all witnesses as to the origin or cause of the fire was simply naked, unsupported opinions and conclusions. They are the same as hearsay and would not support a jury finding even if unobjected to. Dallas R. R. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 and cases cited. And see 25 Tex.Jur.2d, Fires, Secs. 22, 23; Pfeiffer v. Aue, 53 Tex.Civ.App. 98, 115 S.W. 300; Missouri-Kansas-Texas R. R. v. Beasley, Tex. Civ.App., 321 S.W.2d 938; Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791.

Inasmuch as there is no probative evidence in the record establishing the cause or origin of the fire, and it appearing that the case was fully developed on trial, we hold that the trial court erred in failing to sustain Sinclair’s motion for instructed ver-diet at the close of all the evidence. Obviously, a determination of appellant’s other points of error is unnecessary.

Sinclair, in effect, has abandoned its appeal from that part of the trial court’s judgment in favor of appellee Musgrove by failing to assign error to said court’s action. Accordingly, that part of the judgment relating to Musgrove is affirmed with costs adjudged against Sinclair. That part of the judgment in favor of appellees Adams, Henderson and Mattox against Sinclair is reversed and here rendered that said appellees take nothing and pay costs therein incurred.

Affirmed in part, in part reversed and rendered.

      . All emphasis added.