author: MASSEY, Chief Justice.

text:
    Dorothy GILLESPIE, Appellant, v. William B. WESSON, Appellee.
    No. 16446.
    Court of Civil Appeals of Texas. Port Worth.
    Sept. 13, 1963.
    Rehearing Denied Oct. 11,1963.

      Mock, Banner & McIntosh and Jack Banner, Wichita Falls, for appellant.
    Ewing Clagett, Fillmore, Schaeffer & Fillmore and Roy Schaeffer, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

Dorothy Gillespie brought suit for damages against William B. Wesson on account of personal injuries growing out of a fall onto the concrete parking apron in front of a building. Such occurred as result of hanging her shoe heel on a “nosing” on the threshold at the front door of defendant’s premises as she was walking from the inside thereof out to her automobile parked outside. $2,900.00 was the amount of plaintiff’s damages. The jury made other answers in its verdict which convicted defendant Wesson of negligence which proximately caused plaintiff’s injuries by finding that the defendant negligently maintained the doorway to his premises with a concrete threshold projecting above the level of the floor. That the circumstances were such that defendant was charged with notice of said condition of his premises was conclusively established in the evidence.

On motion and notice under Texas Rules of Civil Procedure, Rule 301, “Judgments”, the trial court ruled and ordered that the jury’s Special Issue Findings, made in establishment of a case of liability against the defendant, had no support in the evidence and should be disregarded, and in view thereof the verdict did not entitle plaintiff to a judgment. Accordingly, judgment dated and entered on October 19, 1962 directed that plaintiff take nothing. From this judgment an appeal was perfected.

Our holding is that the Special Issue Findings were erroneously disregarded. Judgment should have been entered on the verdict. Accordingly, we reverse the judgment below and render judgment for damages in favor of the plaintiff and against the defendant in the amount of $2,900.00.

Premise of defendant’s argument in his brief is succinctly stated by a quote we have selected therefrom: “The most that could be said of the evidence relied upon by Appellant is that it showed that the threshold in question was dangerous. The mere showing of a dangerous condition does not necessarily constitute some evidence of negligence unless some duty is owed to an injured party and that duty is violated.”

Photographs of the construction of the threshold were in evidence. These alone demonstrate a condition which made a fact issue upon the matter of defendant’s negligence in its maintenance. As a person opened the door to leave the building there was a concrete strip, somewhat rounded, which was at the edge of the closed door. It was the type of construction sometimes found at exterior doors of buildings intended to aid in causing rain to drain out onto the ground rather than into the building, and to deflect the wind so that it would not blow under the door. Toward the interior of the building the edge of the concrete strip (intended to come into contact with the door when it was closed) amounted to a “nosing”, in that it was vertical for one-quarter to three-quarters of an inch above the tile of the floor. Immediately outside the building and to the outside of the aforesaid strip there is one concrete step. A person leaving the building would usually take one step onto it and his second step would bring him to ground level. There was both lay and expert testimony which raised the issue of negligence, on the matter of construction of the concrete strip and “nosing” thereof, or its maintenance after construction.

The defendant’s business was that of “cocktail lounge”, and there is no question but that plaintiff, a patron, was an invitee. In the ordinary case evidence and fact findings thereon as made in this instance would require a judgment for the plaintiff. See 64 A.L.R.2d 398, Annotation: “Liability of proprietor of store, office, or similar business premises for injury from fall due to defect in stairway”; Walgreen-Texas Co. v. Shivers, 1941, 137 Tex. 493, 154 S.W.2d 625.

Defendant has apparently placed his theory of non-liability upon the concept that plaintiff did actually know or was charged with full knowledge of the defective condition at the threshold of defendant’s premises which caused or resulted in plaintiff’s injury,' — by reason of which defendant was under “no duty” to protect plaintiff from injury stemming therefrom.

The “no duty” doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and discover dangerous conditions. His duty is to protect his invitee from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom and to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. In a suit for damages brought against the occupier by an invitee the occupier, as the defendant, — if he pleads the defense of “no duty” in avoidance or as an affirmative defense under the provisions of T.R.C.P. 94, “Affirmative Defenses”, — is entitled to cast a burden upon the invitee to prove not only that he was injured as a proximate result of encountering a condition on the-premises involving an unreasonable risk of harm, but also (upon the defendant’s introduction of evidence raising an issue under the defense so plead) to prove as a part of his plaintiff’s case that the occupier owed' him a duty to take reasonable precautions, to warn him or protect him from such: danger, i. e., to negative the “no duty”' doctrine invoked by the affirmative defensive pleading. Natalie K. Halepeska v.. Callihan Interests, Inc., 6 Tex. Supreme-Court Journal, August 3, 1963, pp. 644, 652’,. in which is disapproved a small but important part of the law as announced in McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391.

Model forms of submitting special issues in such a situation are considered and! discussed by Dean W. Page Keeton in his; article at 33 Tex.Law Review, pp. 1, 1(⅜ to be viewed as altered by Halepeska. Another article by Dean Keeton on cases; of this type is in 20 Tex.Law Review, pt 562.

On trial in the court below there was no-request by the defendant for the submission of any issue on the matter of defendant’s duty to warn or protect the plaintiff from> the danger in question. Neither was there-any objection on the part of the defendant because of the absence of such an issue as-part of the plaintiff’s case. In view of the pleadings of defendant raising a defense under the “no duty” doctrine it would seem that error would have existed in the charge if defendant had objected because of the absence therein of an appropriate issue.

We believe that the defendant waived his right to have such an issue submitted. T.R.C.P. 274, “Objections and Requests”, and T.R.C.P. 279, “Submission of Issues”. The ground of defense was that of the defendant and if raised as an issue of fact by evidence the defendant would be entitled to have it submitted. In-view of what is said in Halepeska and McKee the burden on such an issue, if submitted, would properly be cast on the ■plaintiff. It would amount to what Professor Hodges treats as an Inferential-Rebuttal issue. See Hodges on Special Issue Submission in Texas, Ch. Ill, p. 44, Inferential-Rebuttal Issues, § 17, “Pleading and Proof”. Simple example of such an issue is the usual one of unavoidable accident in a negligence case. That issue is in the case when the defendant pleads it •and the evidence raises it, but in such a •situation the defense is waived where there is no issue in the charge inquiring whether the event was an unavoidable accident unless the defendant objects because ■of its absence. If an issue thereon is submitted the burden thereof would be prop■erly cast on the plaintiff.

Burden of producing evidence is upon the party relying on an inferential-rebuttal is.sue, but the burden of persuasion on the issue, when submitted, is upon the opponent. Of course the “no duty” doctrine would involve an issue which is grounded in contract implied in fact in that the invitee would be treated as having consented, in ■consideration of his use of the premises, to hazards thereon the dangers of which were fully within his knowledge and appreciation. We believe this is a distinction without a difference.

Only in the event it might be properly determined that the “no duty” doctrine required that the question be resolved as .a matter of law in favor of the defendant and against the plaintiff would defendant Be entitled to prevail in this instance, since •defendant had waived right to a factual issue under his pleading. From our examination of the state of the evidence we ••are convinced that no more than a fact •question could be said to exist. Therefore the question could not be treated as re-solved as a matter of law. Plaintiff testified on cross-examination that there was no difference “about those steps” on the night in question than on any other night she had “walked across there”, and that “it always (had) been dangerous and (she) so considered it, but (she) kept using it anyway”. That the hazard about which she was testifying was the concrete strip and “nosing” thereof on the threshold is not certain. Furthermore uncertain was plaintiff’s appreciation of the danger or risk of catching her toe or heel and thus tripping by reason of the “nosing”.

Defendant contends that even though the trial court erred in disregarding the jury’s answers to special issues he was nevertheless entitled to the judgment he did receive under the doctrine of volenti non fit injuria in that plaintiff’s injuries were received as the result of having voluntarily exposed herself to a known and appreciated danger. This is an affirmative defense upon which any issues submitted should cast the burden upon the defendant. Disregarding the question of whether defendant’s pleadings entitled him to such issues the fact remains that they were not submitted. There was no objection because they were not submitted nor request for any such. The evidence did not establish such defense as a matter of law. The trial court correctly ruled against the defendant on his motion for judgment non obstante veredicto on this ground.

Judgment for the plaintiff should have been rendered on the verdict of the jury. We therefore reverse the judgment of the court below and here order and direct entry of judgment for plaintiff Dorothy Gillespie against defendant William B. Wesson for her damages in the amount of $2,900.00, plus legal interest from date of October 19, 1962, and for all costs


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Joe PATRANELLA, d/b/a DeLuke’s Grocery, Appellant, v. William SCOTT, Appellee.
    No. 4158.
    Court of Civil Appeals of Texas. Waco.
    Sept. 12, 1963.
    Cofer & Dillon, Bryan, for appellant.
    W. C. Davis, Bryan, for appellee.
   McDONALD, Chief Justice.

Plaintiff Scott brought this suit against defendant Patranella for personal injuries and damages sustained by him as a result of falling over a stool in defendant’s store. Trial was to a jury which found that defendant was guilty of negligence in leaving the stool in the aisle, which negligence proximately caused plaintiff’s injuries. The jury acquitted plaintiff of contributory negligence, and fixed plaintiff’s damages at $1040.

The trial court entered judgment for plaintiff for $1040. on the verdict. Defendant filed motion for new trial which, after hearing, was overruled.

Defendant appeals, contending:

1) The trial court erred in denying defendant’s motion for new trial because it was obvious to the jury that defendant was covered by insurance from the testimony of the witness Harrison, remarks, and conduct of counsel for plaintiff, all of which resulted in prejudice and injury to defendant and resulted in the rendition of an improper judgment.

2) The finding of $1040. by the jury to damage issue is against the great weight and preponderance of the evidence.

We revert to defendant’s 1st contention that the injection of “insurance” into the case resulted in the rendition of an improper judgment. Plaintiff came into defendant’s store to make a purchase; fell over a stool in the aisle, and suffered injuries to his back. He went to Dr. Harrison for treatment; Dr. Harrison X-rayed his back; gave him a brace to wear; prescribed medicines; and saw him 9 different times. Dr. Harrison testified as to the extent of plaintiff’s back injuries, and as to the drugs that he prescribed for plaintiff. Dr. Harrison was asked whether it was necessary for him to approve plaintiff’s drug bill for the medicines he prescribed, and he answered “yes sir”, and then volunteered, “The only reason why it is necessary for me to put my name on there is the fact that the insurance companies, when you send them in, want you to initial and verify that he got them”; and “the insurance company, when these things are sent in, and they pay them, they want me to O.K. them for them, and that’s the reason I always put O.K. and my initials on them. * * * ”

Defendant’s attorney objected and moved for a mistrial. The trial judge instructed the jury that insurance had nothing to do with the case and that they should disregard any reference to it whatsoever. Counsel for defendant then withdrew his motion for mistrial. We think that defendant in withdrawing his motion for mistrial and agreeing to the trial court’s instruction waives right to complain at this time; and that the trial court’s instruction cured the error, if any. Moreover, there is no showing on hearing on motion for new trial that the matter affected the jury or harmed the defendant in any manner. Of the three jurors who testified on motion for new trial, none testified that the mentioning of insurance influenced them or any other juror. Moreover, the jury must be presumed to have obeyed the instruction of the trial court and disregarded the statement of the witness. Walker v. Texas Emp. Ins. Ass’n., 155 Tex. 617, 291 S.W.2d 298.

Finally, from an examination of the record as a whole, we do not think that such testimony, if error, was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure; Grossman v. Tiner, C.C. A. (n. r. e.), 347 S.W.2d 627; Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596.

Defendant’s 2nd contention is that the verdict and judgment in the amount of $1040. is against the great weight and preponderance of the evidence. The record reflects that plaintiff had medical bills of $79.50; a drug bill of $17.45; was unable to work for a year; suffered loss in his business; hired additional help in his business due to his accident; and suffered pain and discomfort; wore a brace; used a cane; and still suffers from pain at the time of trial. We cannot say that the verdict and judgment are against the great weight and preponderance of the evidence.

All of defendant’s points and contentions are overruled, and the judgment of the trial court is affirmed.


author: McNEILL, Justice.

text:
    Carolyn LUCAS, Relator, v. Hon. Ethridge R. WRIGHT, Judge, et al., Respondents.
    No. 6661.
    Court of Civil Appeals of Texas. Beaumont.
    June 20, 1963.
    Rehearing Denied Sept. 11,1963.
    Adams & Browne, Everett Lord, Beaumont, for relator.
    W. O. Bowers, Jr., H. P. Robichau, Orgain, Bell & Tucker, Beaumont, for respondents.
   McNEILL, Justice.

This is a proceeding brought by relator, Carolyn Lucas, for writ of mandamus against Hon. Ethridge R. Wright, presiding judge of the Court of Domestic Relations of Jefferson County, Philip Lucas and H. E. Dishman as respondents. The writ is sought to require said judge to allow a fuller inquiry in the taking of Mr. Dish-man’s deposition as trustee of certain trusts. The facts from which the present controversy grew are:

On December 12, 1961, relator sued her husband, Philip Lucas, for divorce, for division of community property and for custody and support of the minor children of the marriage. She applied for commission to take the deposition of H. E. Dish-man, as trustee, in certain trusts which had been theretofore established for the benefit of her husband, Philip B. Lucas, and others, by his late father, Harry Lucas. Mr. Dishman sought to restrain the taking of his deposition by filing application for an injunction in the divorce case. The application alleged that the information sought with reference to the properties of the trust were matters Carolyn Lucas had no right to since she had no beneficial interest therein. A temporary injunction so restraining taking said deposition was granted; from which appeal was taken to this court. A discussion of the situation of the parties, the trusts involved and the right to take the deposition, will be found in the opinion of this court in Lucas v. Lucas, Tex.Civ.App., 365 S.W.2d 372. We there held that Carolyn Lucas was entitled to take the trustee’s deposition and dissolved the injunction. By way of explaining why we held the injunction improper, we stated that she was entitled to inquire into the income of the various trusts since the amount of the children’s support was one sought to be established and testimony thereof would be relevant upon the question. As reflected there, the order of this court was one dissolving the injunction. The order reads: It is “ordered that the judgment of the court below be reversed and the temporary injunction is dissolved; that the appellee, Philip B. Lucas, pay all costs of this appeal; and this decision be certified below for observance.” Mandate issued in due course on this order. Thereafter commission to take Dishman’s deposition issued. When this was done two motions, one by respondent Lucas and one by respondent Dishman, were filed under Rule 186B, Texas Rules of Civil Procedure, in the trial court. The first part of the motions urged that the commission and subpoena duces tecum issued thereunder be quashed. In the alternative the motions prayed that the court limit the extent of taking the deposition. The trial court overruled the first part of the motions but made his order limiting the taking of the deposition of Mr. Dishman to an inquiry upon four items. These items were:

The trustee should be required to furnish information: (a) of all disbursements to Philip Lucas from all three trusts since August 20, 1955; (b) a record of all funds or properties received by the trusts from Philip Lucas; (c) a record of all credits and adjustments accorded Philip Lucas by each of trusts from August 20, 1955, to date; (d) a record of all loans made to Philip or other person for his benefit.

Relator excepted to this ruling of the trial court urging that it was entirely too restrictive and would not afford her opportunity of obtaining information relating to the income of the various trusts involved. At the hearing establishing the bounds of inquiry, certain matters of confidence and privilege were urged and in order to avoid delay and accommodate the parties, the trial judge repaired to the office of the trust and investigated the questions raised and thereafter made his ruling as to the items permitted to be disclosed. Relator attempted to obtain from the judge the records he investigated at the trust office and the time he took in doing so, but he declined to answer any inquiry thereon.

After the court’s ruling aforesaid, Mr. Dishman’s deposition was taken. Almost all of this record, containing 103 pages, was taken up with arguments, objections and exceptions of counsel, over information sought by relator. The trial court denied all effort of relator to inquire into or obtain information with reference to the income of the trusts since the marriage of the parties in 1955.

Having thus been denied the right to question respondent Dishman with reference to the income from the various trusts in which her husband was beneficiary, relator urges she is entitled to the writ of mandamus so that the court will be required to allow her to take Mr. Dish-man’s deposition in accordance with the prior opinion and mandate of this court. The law is settled that mandamus will lie to compel the trial court to proceed in accordance with the mandate of a Court of Civil Appeals, 37 Tex.Jur. (2) 696. The mandate issued on our judgment in Lucas v. Lucas, Tex.Civ.App., 365 S.W.2d 376, informed the trial court that the temporary injunction against taking the deposition was dissolved. This was the substance of the mandate. However, relator calls our attention to the following language in our opinion just mentioned:

“ * * * Under the facts, we think appellant would be entitled to inquire into the incomes of the various trusts and the amounts, regularity and time of support payments which have been made by the trustees to appellee as beneficiary. This inquiry would bear upon the setting of any amount of temporary alimony and support of the children.”

and asserts that since the early decision of Wells v. Littlefield, 62 Tex. 28, it is the law that the opinion accompanying the mandate may be looked to to ascertain what judgment was to be rendered by the trial court as well as the mandate itself. Relator misconstrues the effect of this language in the opinion. It was no part of any order or instruction to the trial court, but was merely a reason which was given in explanation of the dissolution of the injunction restraining the taking of the deposition. The case cited by relator, Taylor v. Jones, Tex.Civ.App., 58 S.W, 47, involved much the same situation. The mandamus there sought was one seeking to require the trial court to retry only one issue of a remanded cause. The last part of the opinion explains the effect of language we think, similar to our own. All of the other cases cited by relator in which mandamus was involved were cases where the judgment itself of the appellate court was not obeyed. To be entitled to mandamus, relator must have a clear legal right to performance by respondent of a particular duty sought to be enforced, and no intendments are to be indulged. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138. Examination of relator’s application reveals complaint upon numerous rulings of the trial judge, who supervised the taking of the deposition. To consider the numerous items reflected would, in a substantial sense, be reviewing many claimed errors. Mandamus cannot be used to perform the office of appeal nor to correct erroneous rulings of inferior tribunals whether interlocutory or final. Robertson v. Work, District Judge, 114 Tex. 461, 270 S.W. 1006.

We do not recede from what we said, however, in the former opinion. While we think the trial court has acted in good faith, he has been too restrictive in his order. No doubt, he felt obligated to protect any confidence or privileged matter and was probably attempting to follow the procedure outlined by the Supreme Court with reference to such matters in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. We have read the record made on the hearing when the court made its order restricting the scope of the deposition and have also read the deposition thereafter taken and we have been unable to find any matters of confidence or privilege contended for except in two respects. The first, it was stated by Mr. Dishman that there was geological information in the trust records which he felt were of a confidential nature. We can see no relevance the geological information would have upon the questions sought to be elicited. The other item of confidence appeared to be that since he owned an undivided interest in the properties in which the trust held interest and that the inquiry might divulge his personal affairs, this would be against his wishes. This court has no desire to have facts disclosed which improperly intrude upon a person’s private and personal affairs but we have been unable to see any sound reason why respondent is entitled to protection because of the mere fact that it might disclose some of his personal affairs. If his affairs were so tied up with those of the trusts that it would be impossible to obtain information with reference to the income of the trusts without disclosing his income then his income would have to be exposed. The trustee testified that he had been a partner of Harry Lucas, the late father of Philip Lucas, for some 20 years in connection with oil properties which constituted the bulk of the trust properties. The partners, no doubt, shared many confidences. Since the elder Lucas’ death, the trusts have succeeded largely to his interest. But, communications between partner and partner, however confidential in their nature, are not privileged. Texas Law of Evidence, McCormick & Ray, Vol. 1, p. 425. However, we doubt that an inquiry as to the income of the trusts would necessarily have to disclose any of the trustee’s private or personal affairs. It appears that there were separate accounts kept for the trusts which did not include the personal funds of the trustee. This would seem to make it unnecessary to divulge the personal income of the trustee.

It is urged by relator that Mr. Dishman as trustee has waived any privilege that might have been attached to copies of the fiduciary income tax returns made in behalf of the trusts for the years involved. The trustee’s testimony at the preliminary hearing on this point is as follows :

“Q. Mr. Dishman, is it your testimony that the fiduciary returns filed with the internal revenue on the Philip Lucas Trusts that they involve your personal property?
“A. We separate the money.
“Q. Yours are not involved are they?
“A. The money is always separated those returns, they are available to you.
“Q. Nothing privileged about that, you are not claiming that. How about your, the bank ledger sheets on the three trusts. You carry separate records on that don’t you ?
“A. Well, we separate the money. Everything is separated as far as money.”

In our opinion, the above constitutes such waiver, although when the deposition was later taken, the trustee stated, “that would not have been my intention to state that.” A waiver once made is waived for all times and all purposes. McCormick & Ray, Texas Evidence, Vol. 1, Sec. 490, pp. 411, 412. But whether waived or not, relevant parts of such copies of income tax returns are no doubt admissible in the inquiry sought by relator. Crane v. Tunks, supra; United States v. O’Mara, D.C., 122 F.Supp. 399. The latter case appears to have been approved in St. Regis Paper Co. v. U. S., 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240.

We have gone into discussion of pertinent matters raised by the parties in order that the trial court may have our views thereon. There is additionally a matter upon which we should like to comment. From the trial court’s ruling setting the bounds of inquiry in the deposition and his rulings in connection with the taking of the deposition itself, we take it that he is of the opinion that all properties and funds in the several trusts involved are no part of the community property of the parties; that since each trust in substance provides that unless and until trustee or trustees in their unbridled discretion shall deliver such funds or such properties to the beneficiary, Philip Lucas, such funds and property do not belong to him even as his separate property. It was contended in the original appeal by appellant, (now relator) that accumulated and undistributed income of the trusts does constitute community property of the parties. We did not pass upon this point then and we do not now pass upon the point.

If, however, the trial court shall at the time trial of this case on its merits be of the same opinion such items are not community property, we deem it proper to suggest in view of the fact courts cannot pass upon hypothetical questions, that proof be allowed that there is, if such exist, accumulated and undistributed income (or assets purchased with such income) from the trusts and the nature of their source and other pertinent factors bearing upon their legal character so that in the event the cause is appealed after the final hearing, an authoritative decision may be rendered on appeal upon the question. In such a situation, if it is deemed that the trial court was in error, the cause may be remanded for trial that could finally dispose of the question. Should the court not allow facts to be brought up, either by admission in evidence or by bill of exception, pertaining to the question and it is held that this was error, the cause would have to be reversed to allow inquiry into the question and in all probability a second appeal would be necessary to lay the matter at rest. From what has been said, however, it must not be concluded that we have formed any opinion on the question and are not in any way nor to any extent passing on the final matter at issue. Since hypothetical cases may not be determined, we simply recommend that the factual framework pertaining to the problem mentioned be established in the trial court so that the questions of law may be settled in one appeal.

Though it was proper for the trial court to have made its preliminary order under the motions eliminating from inquiry in the deposition to have been taken matters of an irrelevant or privileged nature, it is our conclusion that the trial court’s order was too restrictive. However, the authority of the Court of Civil Appeals to issue writs of mandamus is very limited and we conclude the relief sought by relator must be denied. Crane v. Tunks, supra; Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330; Longbine v. Johnson, Tex.Civ.App., 347 S.W.2d 772.

Mandamus denied.


author: LANGDON, Justice.

text:
    E. L. MANERING, Appellant, v. NORTH TEXAS PRODUCERS ASSOCIATION, Appellee.
    No. 16444.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 20, 1963.
    Rehearing Denied Oct. 18, 1963.
    Lefkowitz, Green, Ginsberg, Eades & Gilmore, and John Plath Green, Dallas, for appellant.
    Bagby & Ellis and Wm. L. Bagby, Arlington, for appellee.
   LANGDON, Justice.

This is an appeal from a summary judgment. The plaintiff, E. L. Manering, appellant, initiated this suit against the defendant, North Texas Producers Association, appellee, to recover a commission based upon an oral contract. The parties will be referred to as they were in the trial court.

Manering as plaintiff alleged that he was authorized by H. Carl Vandervoort, Jr., an officer of Vandervoort’s, Inc., a Texas Corporation engaged in the dairy business, to make known to the defendant North Texas Producers Association that he and the other stockholders were willing to sell Vander-voort’s, Inc., for $2,750,000.00 net to the seller, the commission to be paid by the purchaser. That thereafter he contacted Mr.' J. O. Woodman, General Manager of the defendant, North Texas Producers Association, and advised him that Vander-voort’s was for sale on the terms above stated and that Woodman agreed that defendant would pay plaintiff a commission on the sale. That the usual and customary commission for such transactions was and is 5% of the gross sales price. That thereafter the sale was consummated and defendant, North Texas Producers Association, purchased Vandervoort’s, Inc., for the gross consideration of $2,600,000.00, net to. the seller.

That he was the efficient and procuring cause of the sale in that he placed the parties to the sale in communication resulting in the negotiation and consummation of the sale. That under his contract with the defendant he is entitled to a commission of $130,000.00 and attorney’s fees of $30,000.-00.

Plaintiff further alleged that the sale agreement upon which his action for commission is based was one for the sale of personal property, namely Vandervoort’s, Inc., by its “shareowners” in their capacity as such. That the defendant, after the •oral agreement to pay the commission to plaintiff, entered into a sales agreement with the “shareowners” of Vandervoort’s, Inc., by which the latter agreed to sell Vandervoort’s, Inc., as a going corporation to the defendant. ,

That thereafter on or about March 1, 1961, the corporation, Vandervoort’s, Inc., in its sole capacity as such, executed a bill of sale and various warranty deeds; that such action was taken at the behest and at the direction of the defendant in order to attempt to change the character of the transaction from a sale of personalty to a sale of realty and personalty with knowledge that the commission agreement between plaintiff and defendant was an oral one and by such maneuver defendant attempted fraudulently to deprive plaintiff of his rights to a commission for procuring the sale; that such action on the part of the defendant in changing the device or vehicle of sale without the knowledge or consent of the plaintiff was wrongful, fraudulent and calculated to deceive and to deny this plaintiff its rights under and by virtue of his commission contract and that the plaintiff has been damaged by such wrongful act of the defendant to the extent hereinafter shown.

That plaintiff has demanded payment of such commission, the defendant has failed and refused to pay all or any part thereof.

The defendant answered by way of genera] denial; further that the contract in question is one for the sale of real estate and not in writing as required by Articles 3995, sec. 4 and 6573a, sec. 28, Vernon’s Ann.Texas Civil Statutes, as amended, “nor is there any memorandum thereof signed by Defendant or its agents.”

The defendant filed its motion for summary judgment and in support thereof attached the affidavit of J. O. Woodman and various instruments including the proposal of purchase and the acceptance thereof, general sales agreement, warranty deed, bill of sale, quitclaim deed and a repurchase agreement covering a portion of the assets. The affidavit recited that defendant, “did not purchase any stock, interest or title to Vandervoort’s, Inc.,” and denied any agreement to pay plaintiff a commission.

The trial court granted the defendant’s motion for summary judgment and for the reasons hereinafter stated we affirm the judgment.

The pleadings and the record as a whole present one issue of fact. It involves the oral agreement to pay a commission. However, under the record in this case the decisive question is: Did the transaction or sale in question, made the basis of a suit for commission, involve the sale of real estate within the terms of sec. 22, Art. 6573a, Vernon’s Ann.Rev.Civ.St. ? In the event it did, then an oral agreement would not suffice. In order to recover any part of a commission involving the sale of real estate a written agreement or memorandum is required. Further under Art. 6573a, supra, it has been held that only a person with a license can recover any commission for the sale of real estate. The record does not reflect that the plaintiff is a licensed real estate dealer; however, that question is not involved.

Examination of the contract of sale, the various instruments involved and the pleadings of the plaintiff conclusively shows that the transaction which is the basis of this suit for commission included the sale and transfer of considerable real property situated in Tarrant, McLennan, Brown and Erath Counties, Texas, and valued in excess of $500,000.00, as well as personal property used in the dairy operation. Had the business been purchased without the real property on which the various plant facilities and other fixtures and improvements were situated, it could not have continued to operate as a going concern. The real property and its location was essential to continued operation of the dairy business which included the manufacture and processing of dairy products and the distribution thereof.

The plaintiff has no pleading alleging severability of the assets of Vandervoort’s, Inc., nor that he was employed to sell only a portion of it. The contract contained one consideration covering the sale of all the properties of Vandervoort’s, Inc. The contract contained no language by which it could be construed as a divisible contract. We therefore hold that the contract of sale involved herein was an entire and indivisible one. Stroble v. Tearl, 148 Tex. 146, 221 S.W.2d 556 at page 559(2) and authorities therein cited.

It therefore follows that since the alleged contract for commission was based upon a sales transaction which contemplated the sale and transfer of real property and that such contract was not in writing the plaintiff cannot prevail in his suit for commission. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 and authorities cited therein.

The plaintiff’s contention that the defendant sought to defeat his claim .for commission by changing the character of the transaction from one involving personalty to one involving realty and personalty could only indicate that the plaintiff contemplated a transaction involving the transfer of the stock of the Corporation.

However, under the holding in Hall v. Hard, supra, the plaintiff, Manering, can recover only by showing that he was not employed to sell any real estate or securities. The Real Estate License Act and The Securities Act (Art. 581, sec. 34), both provide that the plaintiff must allege and prove his license when seeking recovery of compensation based upon a transaction which contemplates the sale and transfer of real estate or securities. See Hall v. Hard, supra. The record is silent on the question of whether the plaintiff Manering, is licensed under the provisions of the Securities Act.

The contract of sale was not severable or divisible. It could have been handled by a transfer of the stock of the corporation or by dissolution of the corporation and a transfer of its assets. The latter means was used. See Vol. 39 Texas Law Review, pp. 665, 670.

The plaintiff, Manering, has not qualified nor shown himself entitled to a commission under either plan of transfer assuming he is able to obtain a favorable finding on the disputed issue as to whether there was an oral agreement to pay commission. All of plaintiff’s points are overruled. The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Thelma D. PARR, Appellant, v. John J. PICHINSON, Appellee.
    No. 14094.
    Court of Civil Appeals of Texas. San Antonio.
    July 24, 1963.
    Rehearing Denied Sept. 4, 1963.

      Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellant.
    Butler & Stone, Robstown, for appellees.
   POPE, Justice.

Plaintiff, John J. Pichinson, sued Thelma D. Parr, and she, individually and as trustee for her daughter, cross-acted. The trial concerned many actions between the parties, but this appeal by Thelma D. Parr, individually, brings forward only the question of fraudulent concealment by cross-defendant, Pichinson. The jury absolved him of fraud on all issues submitted, but appellant insists that there was fraudulent concealment as a matter of law. The trial court apparently did not consider fraudulent concealment within the pleadings and theories upon which the case was tried, and overruled appellant Parr’s motion for judgment notwithstanding the verdict.

Whether fraudulent concealment was within the pleadings and theory of the trial requires us to examine the record. The cause went to trial on December 4, 1961. Cross-plaintiff, Parr, asserted in the pleadings upon which she went to trial, that Pichinson had been her attorney from 1952 to 1959 and received an annual retainer, and certain specific fees. She alleged “that in addition thereto,” he and she had dealt in the oil and gas business, that she had paid him large sums of money for investments, and that he had kept her records. She stated that he had omitted certain credits in her favor and had concealed them from her. She asked for an accounting.

Mrs. Parr then alleged the facts with respect to certain oil and gas trades, in each of which she paid sums of money to buy an interest in an oil and gas lease. In the pleadings upon which she went to trial, she asserted facts with respect to leases which are called the Holden-English lease, and the Watkins Estate lease. On January 16, 1962, the case still being on trial, she filed her first trial amendment and asserted additional but similar facts with respect to the Bidwell-Davis lease, the Messer-Davis lease, the Senon Flores lease, and amended her allegations about the Holden-English lease. The case was submitted to a jury on January 26, 1962.

In all of cross-plaintiff’s pleadings about these five transactions, she complained that she had been defrauded by Pichinson’s false representations about the cost of the oil and gas leases. We have stated in the margin the full allegations with respect to the Holden-English lease. The allegations concerning the other leases are similar.

Throughout the trial, cross-plaintiff affirmed and Pichinson denied that he told her what he had paid for the leases. It was her contention that he represented he paid large sums for them when in fact he had not. He contended that he was in the business of buying and selling oil leases and never disclosed to anyone the cost to him. The court submitted issues on each of the transactions, based upon that court-room battle. The issue for the Holden-English lease is set forth, and those about the other four transactions were similar:

“Do you find, from a preponderance of the evidence, that on or about the 13th day of October, 1954, John J. Pichinson represented to Thelma D. Parr that the purchase cost to them of the Holden-English leases would be $100,000?”

The jury answered all the issues for Pichinson, finding that he did not make the representations. Cross-plaintiff, Thelma D. Parr, then made a motion for judgment notwithstanding the verdict. She urged, for the first time, that the proof showed that Pichinson was her attorney, that he was a fiduciary toward her and her daughter, and that there is a duty of full disclosure by a fiduciary which his own testimony showed he had not met. The trial court apparently was of the opinion that this was a shift in the theory of trial and gave judgment upon the jury verdict.

The judgment was correct because the pleadings, even though amended late in the trial, did not assert fraud based upon non-disclosure by a fiduciary. Instead they asserted in each of five transactions, that Pichinson was guilty of overt and affirmative misrepresentations. The pleadings put Pichinson on notice that he was charged with that kind of fraud and informed him of the nature of the evidence which he could expect to be produced against him. Missouri, K. & T. R. Co. v. Poole, 104 Tex. 36, 133 S.W. 239; 2 McDonald, Texas Civil Practice, § 5.05. During the trial, that was in fact the nature of the evidence produced against him. Until the verdict was returned, cross-plaintiff, Thelma D. Parr, construed her own pleadings to embrace affirmative acts and misrepresentations. From the beginning to the end of the trial, Thelma D. Parr was affirming and Pichinson was denying that he had made misstatements of fact to her. It was not until after the verdict was returned that the contention was made that he failed to speak when he had a duty to do so. This was the opposite of what Mrs. Parr had been asserting. Ordinarily, the construction placed by the parties on their pleadings will be adhered to. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238.

In State of California Department of Mental Hygiene v. Bank of the S. W. National Association, Tex.Civ.App., 348 S.W.2d 731, the argument was whether a trustee had the power to pay funds for the support of a beneficiary. The California Department of Mental Hygiene had not pleaded fraudulent concealment, but sought to invoke it as a duty of the fiduciary without asserting it in its pleadings. The Court said, “Such was not raised in the plaintiff’s pleading, was not before the Trial Court, and cannot be raised for the first time on appeal.” The Supreme Court, in affirming, said the same thing. Tex., 354 S.W.2d 576, 581. Accord, Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283;. Moseley v. Texas & New Orleans R. Co.„ Tex.Civ.App., 346 S.W.2d 636; Cadmus, v. Evans, Tex.Civ.App., 320 S.W.2d 176;. 3 Tex.Jur.2d, Appeal and Error-Civil, §§, 371, 374.

As stated in Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, “The defendants had a right to. assume that the case as made by the pleadings and testimony was the case and the only case they were called upon to defend and to prepare their defense accordingly.”'

Since there are no other points except those which present a factual theory not presented to the trial court and jury prior to verdict, we affirm the trial court’s judgment.

      . “Cross-Defendant falsely and fraudulently and with the intent to deceive and defraud Cross-Plaintiff, represented to her that he had an opportunity to acquire oil, gas and mineral leases on approximately fifteen hundred (1500) acres of land in Atascosa County, Texas, known as the Holden-English Leases; that Cross-Defendant represented said leases to be exceedingly valuable oil, gas and mineral properties within proven territory with unlimited potentials and could be acquired by him for the sum of One Hundred Thousand ($100,000.00) Dollars, which was less than the true and actual value of said leases; that Cross-Defendant further represented that the leases were so valuable that he would acquire the full interest under said leases himself, but because of limited funds could only invest the sum of Twenty-Eive Thousand ($25,000.00) Dollars of his own money in acquiring a one-fourth (¾) interest and prevailed upon Cross-Plaintiff, on the basis of said representations, to enter into an agreement with him for the purchase of the leases under the terms of which she would ‘come in with him on the deal’ and acquire a three-fourths (%) interest in said leases for a total sum of Seventy Five Thousand ($75,000.00) Dollars; that because of the fact that Cross-Defendant was Cross-Plaintiff’s attorney in whom she had the utmost confidence insofar as his ability, honesty and integrity was concerned, and completely relying upon the representations made by Cross-Defendant, Cross-Plaintiff paid to Cross-Defendant the sum of Sixty Two Thousand Five Hundred ($62,500.00) Dollars in her individual capacity for a five-eighths (⅝) working interest in said leases and the sum of Twelve Thousand Five Hundred ($12,500.00) Dollars in her capacity as Trustee for Georgia B. Parr for a one-eighth (⅜) working interest in said leases; that thereafter, on the 15th day of October, 1954, Cross-Defendant, continuing his fraudulent scheme, falsely and fraudulently further represented to Cross-Plaintiff that he had paid the sum of One Hundred Thousand ($100,000.00) Dollars for the working interest under said leases by paying the sum of Twenty Five Thousand ($25,000.-00) Dollars in cash for himself and the sum of Seventy Five Thousand ($75,000.-00) Dollars from the Cross-Plaintiff, individually and in her capacity as Trustee for Georgia B. Parr, and delivered assignments to her.”
      “Defendant and Cross-Plaintiff amends Paragraph IX of Defendant’s Third Amended Original Answer and Cross-Action and substitutes therefor the following:
      “ ‘That all of the representations made by Cross-Defendant, John J. Pichinson, were false and were then and there known to be false, the knowledge of which fact was not acquired by Cross-Plaintiff until April 12, 1961; that, in particular, Cross-Defendant acquired an assignment of the entire working interest in said Holden-English leases for the sum of Seven Thousand Three Hundred Ninety Five ($7,395.00) Dollars after Cross-Plaintiff had deposited the sum of Seventy Five Thousand ($75,000.00) Dollars with Cross-Defendant to be used as payment for three-fourths (%) of the working interest in said leases when actually the amount she should have paid was Five Thousand Five Hundred Forty Six and 2¾00 ($5,546.25) Dollars, or three-fourths (¾) of Seven Thousand Three Hundred Ninety Five ($7,395.00) Dollars, all to Cross-Plaintiff’s total damage in the sum of Sixty Nine Thousand Four Hundred Fifty Three and 7%)o ($69,453.75) Dollars, and being to her damage in her individual capacity in the sum of Fifty Seven Thousand Eight Hundred Seventy Eight and i%00 ($57,878.10) Dollars and to her damage in her capacity as Trustee for Georgia B. Parr in the sum of Eleven Thousand Five Hundred Seventy Five and 8¾00 ($11,575.65) Dollars; and that by reason of the fact that the action of the Cross-Defendant in perpetrating his fraudulent scheme upon the Cross-Plaintiff was wilful and malicious, she is entitled to exemplary damages in the additional sums of Five Thousand ($5,000.00) Dollars in her capacity as Trustee for Georgia B. Parr and Five Thousand ($5,000.00) Dollars in her individual capacity.’ ”


author: DENTON, Chief Justice.

text:
    WHITE RIVER MUNICIPAL WATER DISTRICT, Appellant, v. Alleta WALKER et al., Appellees.
    No. 7257.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1963.
    Rehearing Denied June 3, 1963.
    Wicks & Wicks, Ralls, for appellant.
    Howard, Moore & Armstrong, Lubbock, for appellees.
   DENTON, Chief Justice.

This is an appeal from an interlocutory order granting a temporary injunction against White River Municipal Water District. In general, the temporary injunction restrained the Water District from condemning appellees’ land above the maximum water level of the reservoir for park and recreational purposes, prohibiting the taking of the appellees’ mineral estate under all lands sought to be condemned by the Water District, and prohibiting the condemning of the fee simple title to some 98.9 acres below the dam. The Water District has timely perfected its appeal from this interlocutory order.

The White River Municipal Water District, hereinafter referred to as Water District, was created by an act of the Legislature by Article 8280, Section 198, Vernon’s Ann.Tex.St. The Statute authorized the Water District to acquire or construct a dam or dams, plants, and other facilities within the named three county district, necessary for the purpose of impounding, processing and transporting water to the cities of Post, Ralls, Spur and Crosbyton, Texas. The act creating the Water District further provided:

“Sec. 10. (a) For the purpose of carrying out any power or authority conferred by this Act the District shall have the right to acquire the fee simple title to land and other property and easements (including land needed for the reservoir and dam and flood easements above the probable high water line around any such reservoirs) within or without the boundaries of the District, but not outside any County in which the District is' located, by condemnation in the manner provided by Title 52, Revised Civil Statutes, as amended, relating to eminent domain. * * * The amount of and character of interest in land, other property and easements thus to be acquired shall be determined by the Board of Directors.”

Section 24 of the creating act provides:

“Sec. 24. The District is authorized to establish or otherwise provide for public parks and recreation facilities, and to acquire land for such purposes within or without the District but not outside any county in which the District is located, provided, however, that no money received from taxation or from bonds payable wholly or partially from taxation shall be used for such purpose; nor shall the right of eminent domain be extended for such purposes.”

The Board of Directors of the Water District instituted condemnation proceedings in the County Court of Crosby County to acquire fee simple title to 1908.71 acres owned by the appellees. Negotiations, proper notices, appointment of disinterested commissioners and other procedural steps were admittedly properly carried out. A hearing, after due notice, was held by the Commissioners on July 10, 1962, and an award of $98,307.46 was made on July 12, 1962. This amount was deposited by the Water District with the County Clerk of Crosby County on July 13. Appellees timely filed their objections to the award on July 31, 1962, and on this same date filed their petition for injunction in the District Court. The District Court granted a temporary injunction enjoining the Water District in the following particulars: From condemning or taking any oil, gas or other minerals under the land of appellees sought to be condemned, save and except rock, gravel, sand and soil needed by the District in constructing and maintaining the dam and reservoir; from condemning the fee simple title to Section 98, owned by appellees except 98.9 acres described by metes and bounds which lie below the dam and spillway. However, the Water District was allowed a flood easement over this parcel of land. The District was further enjoined from condemning and using appellees’ land above the maximum high water line for park and recreational purposes. In effect the District Court permitted the condemnation of the surface rights of the excess land above the high water line, but prohibited it to be used for recreational purposes. Appel-lees bring forward a counter-point contending the trial court erred in failing to enjoin the District from taking the fee simple title in the excess land above the high water line.

The basic question to be determined is whether or not the District Court had jurisdiction to hear and act on the ap-pellees’ complaint. The general rule is well established that the institution of condemnation proceedings in the County Court vest that court with prior and exclusive jurisdiction, as against a petition for an injunction filed in the District Court, to hear and determine all matters at issue in the condemnation proceeding. Tarrant County v. Shannon, 129 Tex. 264, 104 S.W.2d 4. Texas Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266, 17 S.W.2d 774. Nagy v. City of Amarillo, (Tex.Civ.App.), 358 S.W.2d 682, (Refused, NRE). Harrell v. County of La Salle, (Tex.Civ.App.), 348 S.W.2d 853, (Refused, NRE). However, it is also settled this general rule is subject to the exception that if the condemnation proceedings are void for want of power or jurisdiction such void proceeding may be enjoined. Tarrant County v. Shannon, supra. Texas Gulf Coast Irr. Co. v. Gary, supra. The gist of appellees’ contention is that the condemnation proceeding is void and subject to being enjoined for the reasons the Water District is seeking to take land for park and recreational purposes contrary to the creating act, and that in seeking to take land above the high water line and below the dam and spillway, and the mineral interest, the District is attempting to take more land and a greater interest in that land than is necessary to carry out the purposes for which the District was created. As we understand it, appellees contend this taking exceeds the power oi authority of the District.

It is undisputed the condemnation proceedings were regular and that the statutory procedural steps were properly carried out. It is therefore apparent that the condemnation petition and the subsequent procedural steps taken were sufficient to invoke the jurisdiction of the County Court of Crosby County to hear and determine the issue of condemnation, unless the condemnation proceedings were in fact void. In our opinion whether the Water District has the power or authority to take the proximately 158 acres of so called “excess land” above the high water line, the mineral interests in all the land involved, and the 98.9 acres below the dam and spillway, are issues to be determined in the condemnation proceeding still pending in the County Court. The fact that these issues have been raised by the condemnees do not render the condemnation proceeding void. In Missouri-Kansas-Texas R. Co. of Texas v. Jones, (Tex. Com.App.), 24 S.W.2d 366, the railway sought an injunction in the District Court to enjoin the prosecution of a condemnation suit until it could be determined by the District Court whether the right to condemn the property existed. In holding the District Court was without authority to enjoin the prosecution of the condemnation suit, the court used the following language :

“It is more reasonable to assume that the Legislature contemplated the power thus conferred upon county courts should be effective to fully accomplish the determination of condemnation matters instead of requiring parallel suits in different courts in regard to the same subject matter. When it gave jurisdiction to county courts in such cases, it must be presumed that it was the intention to confer such authority as was essential and necessary to accomplish the purpose for which the power was conferred; that is, to determine, subject to appellate review, all questions legitimately involved in any condemnation case. We think such purpose becomes apparent upon a consideration of the provisions of subdivision 3, art. 3268, R.S.1925, to the effect that, if upon a final trial in the county court it is determined that the right to condemn does not exist, the court shall so adjudge. This seems to plainly indicate a purpose to clothe the county court with power to determine the question as to whether under existing conditions a plaintiff has shown a right to condemn the property sought to be taken.”

We think the language and holding in this case and the holding of Texas Gulf Coast Irr. Co. v. Gary, supra, are authority for the proposition the County Court is vested with full power and authority to determine questions properly arising in a condemnation case. See also Gill v. Falls County, (Tex.Civ.App.), 243 S.W.2d 277; Wilson v. Donna Irr. Dist. No. 1, (Tex.Civ.App.), 8 S.W.2d 187, (Writ Refused) ; Lone Star Gas Co. v. Birdwell, (Tex.Civ.App.), 74 S.W.2d 294. The questions presented here are proper matters to be litigated in the pending condemnation proceeding. We therefore do not pass upon the question as to whether the facts pleaded and proved are sufficient to entitle the appellees to the relief being sought. The action of the County Court upon these matters will be subject to review when properly presented on appeal.

In view of our holding the District Court was without jurisdiction to hear and issue the injunction prayed for, a discussion of the remaining points of error becomes unnecessary.

The judgment of the trial court is reversed and the injunction issued by that court is dissolved.

Reversed and rendered.


author: CHAPMAN, Justice.

text:
    AMEFÜCAN TANK & MFG. COMPANY, Inc., Appellant, v. FIRST NAT’L BANK OF LITTLEFIELD, Appellee.
    No. 7276.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1963.
    Rehearing Denied Sept. 9, 1963.
    Tobin & McConnell, Dallas, Joe Cox, Plainview, for appellant.
    Potter, Gowdy & Kirk, J. R. (Billy) Hall, Littlefield, for appellee.
   CHAPMAN, Justice.

Appellant, American Tank & Mf’g Company, Inc., brought this suit in the trial court against First Nat’l Bank of Little-field seeking to recover proceeds of certain checks made payable to American Sales, Inc. and American Tank & Mf’g Company and deposited to the account of C. Wayne Bryan. The former company had been dissolved and its assets purchased by the latter. At all times involved the checks made payable to American Sales, Inc. were the property of appellant herein.

Beginning on December IS, 1954, and for several days thereafter, C. Wayne Bryan deposited with appellee bank $5,787.07, $2,-560 in currency and $3,227.07 represented by checks made payable to the companies above named. The next day he gave a check on his account, another check on December 21, 1954, and a third check on December 29, 1954. The balance of $4,-548.58 was drawn from the account in cash on January 4, 1955.

Recovery was sought by appellant for $3,369.51, $142.44 more than the total of the checks introduced as made payable to the named companies. Upon trial to the court a take-nothing judgment was rendered, from which appeal is perfected to this court.

Appellant’s pleadings show it was engaged in selling propane and butane tanks and affiliated accessories in the State of Texas and that it maintains a warehouse and sales office in Littlefield in charge of a manager for the purpose of distributing its products for sale to wholesale and retail trade and for collecting therefor and depositing such collections to its depository bank, Security State Bank of Littlefield, Texas. The record shows that from December 1953 until he was discharged that Bryan was the company’s Littlefield manager. Its president, D. W. Scoggins, testified Bryan worked for them until January 4, 1954, but he obviously meant 1955.

Appellee bank was not the drawee bank on any of the checks involved in which appellant was payee, but was the collecting bank. There is testimony by which we are bound that shows the company had trusted Bryan to the extent of authorizing him to endorse checks made payable to it, cash them and pay bills the company owed. He said Mr. Scoggins had told him “ * * * on any occasion I deem it necessary to transact some company business, or such matter, that it was all right to endorse checks. He said that was what his managers were for, to take care of the business.” He said: “They were to be endorsed by American Sales or American Tank & Mf’g Company by us, or by me.” He sometimes used a rubber stamp, which he had himself purchased and sometimes endorsed them with a pen or pencil or whatever was handy and available.

Bryan had apparently lived in Littlefield for some time, the bank’s teller, Mrs. Baccus, who cashed at least some of the checks and accepted some of the deposits to him, having testified she had known him for years. Apparently she knew him only casually because she testified in effect that so far as she knew Bryan himself could have been the American Manufacturing Company or an officer of American Sales, Inc.

Robert Bridges, cashier of appellee bank, testified he also was acquainted with Bryan but did not personally know anything about either of the named companies.

It is without question in the record that appellee bank or any of its employees did not knowingly contribute to the conversion of the funds by Bryan, if he converted them. He was not sued by appellant so far as the record is concerned and the pleading on which it went to trial against appellee was not filed until almost seven years after he was discharged. We assume the original petition was filed within the limitation period or there would have been a limitation question raised. Bryan testified the bank benefitted none whatsoever from the funds and that he had been doing business with them for fifteen or twenty years.

The legal question thus presented is whether a collecting bank must police its depositors’ withdrawals when it is innocent of any wrongdoing on the part of the depositor and is not itself benefitting from such account. We feel compelled to answer in the negative.

So far as this record is concerned $2,560 was a cash deposit of Bryan’s money having nothing whatever to do with American Mf’g Company money or with American Sales, Inc. Furthermore, the record shows that so far as the knowledge of the bank is concerned, Bryan could have been a ranking officer of the company or the company itself.

Most of the cases cited by appellant in support of its contention are cases involving forgery. They are clearly distinguishable from the instant case. Appellant particularly relies on the Court of Civil Appeals case of Independence Indemnity Co. v. Republic Nat. B. & T. Co., 114 S.W.2d 1223. That case on the facts is also distinguishable in several respects from our case.

The case we believe most nearly in point to ours is Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., 127 Tex. 407, 93 S.W.2d 701, 106 A.L.R. 821. Appellant seeks to distinguish it on the ground that in that case the converting party was in a fiduciary relation with the railway company seeking to recover from the bank.

The relation of principal and agent may be a fiduciary relation. Winger v. Chicago City Bank & Trust Co., 394 Ill. 94, 67 N.E.2d 265, 275; Allen v. Borlin, 336 Ill.App. 460, 84 N.E.2d 575, 578; Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106, 45 N.E.2d 20, 24; Murray County v. Pickering, 196 Ga. 208, 26 S.E. 2d 287, 292; American Button Co. v. Weishaar, Mo.App., 170 S.W.2d 147, 152.

We believe the testimony given by Bryan himself is also sufficient to show a fiduciary relation between him and American Tank & Mf’g Company. If so, there is no material distinction in the Quanah, A. & P. Ry. case and ours on the question of the legal liability of the banks.

Generally speaking, a fiduciary relation applies to any person who occupies a position of peculiar confidence toward another. “It includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations.” Cartwright v. Minton, supra; Peckham v. Johnson, Tex.Civ.App., 98 S.W.2d 408; Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 120 A.L.R. 720.

The Supreme Court in Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., supra, in discussing the question of liability of a bank under such circumstances said “ * * * to require the bank to investigate such transactions would put a burden on the bank for which it is not paid * * *, and would clog the handling of commercial paper in a way that would be to the disadvantage generally of trust business, and also to business in general.”'

The Quanah, A. & P. Ry Co. case, as in our case, involved a situation where the bank received no part of the funds and had no actual knowledge they were being checked out by persons not entitled to receive them. The Supreme Court in quoting from Michie on Banks and Banking' in the Quanah, A. & P. Ry. Co. case said:

“ ‘Though there are decisions to the contrary, according to the weight of authority the bank is not liable for the trustee’s subsequent misappropriation of such funds merely because it receives them to his personal account with knowledge of their character. To' render the bank liable it must have knowledge of the trustee’s intention to> misappropriate the funds. The mere fact that the bank knows that funds credited to a depositor individually are trust funds does not charge it with notice of such intention, or put it on inquiry regarding their disposition. The bank has no supervisory power over the deposit or the disposition thereof. The bank may safely assume that, although the deposit is entered to-the trustee’s account as an individual,. or as attorney, he will faithfully distribute it. * * * ’ ”

We believe the court below properly disposed of the case and the judgment of that court is in all things affirmed.

      . Cartwright v. Minton, Tex.Oiv.App., 318 S.W.2d 449 (NRE).


text:
    RODMAN SUPPLY COMPANY and Harold R. Hall, Appellants, v. Preston JONES, Appellee.
    No. 7261.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1963.

      Simpson, Adkins, Fullingim & Hankins,. Amarillo, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, and Roy Sansing, Higgins,, for appellee.
   DENTON, Chief Justice.

This is a damage suit brought by Preston Jones against Rodman Supply Company and its employee Harold R. Hall for damages' sustained as the result of a collision which occurred in Canadian, Texas. The jury found all negligence issues in favor of the plaintiff below and assessed damages in the amount of $20,000.00. The trial court’s, judgment conformed with the jury verdict. Upon the overruling of appellants’ amended, motion for new trial, this appeal was timely-perfected.

Appellants’ first four points of error complain of jury misconduct in four different respects. The first of these deal with a. discussion of attorneys’ fees. Other alleged' acts of misconduct concerned the visiting of the scene of the collision by some members-of the jury; the consideration of improper elements of damages; and a reference to* the defendant below having liability insurance. Upon the hearing of appellants’ motion for new trial eight jurors testified. Several of the jurors testified attorneys’’ fees were mentioned and discussed to some extent. Juror Rivers testified attorneys’' fees “was discussed and deliberated”, but it “wasn’t settled, because they didn’t know-how much anybody was going to get”. AH' but two of the jurors who testified stated' attorneys’ fees were mentioned, and one testified we “naturally” assumed attorneys” fees would be paid. Except for three of' the jurors who “couldn’t remember” all. agreed that three of the jurors, namely Janet Fry, Aurelia Garcia and R. T. Kelley,. Jr., had told the jury they had gone by the scene of the accident prior to their deliberation and reported their observations to the jury as a whole. Mrs. Garcia and Kelley were not called to testify, but Mrs. Fry freely admitted she went by the scene and reported her observations to the jury. Three jurors told of Kelley’s visit to the scene, and that he “clocked” his approach to the scene of the collision as he drove his automobile thirty miles per hour along the route driven by appellant Hall. Juror Mc-Elreath in referring to Kelley testified: “He claimed visibility was — you could see as far as you wanted to; wasn’t nothing to keep a fellow from seeing anything, at thirty miles per hour there wouldn’t be no cause of trouble”.

Testimony of the elements considered in determining the amount of damages was rather positive. Three jurors testified they arrived at the amount of damages by estimating how mitch would be required to support the plaintiff and his family of six children for the period they estimated he would be unable to work, plus the estimated costs of an operation. No juror denied the cost of living factor was generally discussed during the discussion of the damage issue. Juror Fry remarked she received $275 per month and that her family lived on this amount. Another juror, Mrs. Garcia, reported that her family of four lived on $280 per month. Some jurors were not questioned on this particular matter, and two others did not remember this discussion.

Four of the jurors testified that insurance was “mentioned” and “discussed”. Two others “didn’t remember”. Mrs. Fry stated there was a discussion of insurance — “Not a great deal of discussion but it was mentioned”. Juror Riley conceded that during the jury deliberation it was brought out the law required the defendant to have liability insurance, and that the defendant probably had insurance. Juror McElreath testified: “I told him (referring to Juror Riley) everybody carried what the state required”. It was admitted this statement was made during the discussion of the damage issue. Other similar statements were made by various jurors, but it is deemed unnecessary to detail them further. The fact these discussions were entered into was not denied except to the extent some of the jurors could not remember. The fact that all of the jurors testified on cross-examination that they considered only the evidence introduced in the trial, and that they “kept their oath” cannot be considered here because these matters dealt with the mental processes of the jury.

The fact jurors view the scene of a collision and report their observations and conclusions to the jury during their deliberations, amounts to the receipt of testimony other than that offered at the trial and constitutes misconduct within the meaning of Rule 327, T.R.C.P. In reviewing this record it is quite obvious the jury considered the amount they thought necessary to support appellee’s family for the probable duration of his disability. This was a clear violation of the court’s charge in connection with the damage issue. The fact some jurors, in response to leading and suggestive questions, testified they also considered physical pain and suffering and loss of earning capacity does not take the overall discussion out of the realm- of misconduct. The Supreme Court had before it the question of jury misconduct in discussing unauthorized elements of damages in Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062. After holding the jury discussed and considered unauthorized elements of damages, the court held:

“We know of no way by which this court can separate the unauthorized damages awarded by the jury from those which were authorized.”

One of the most obvious acts of misconduct was the injection of liability insurance into the discussion. One juror used the term “naturally” in testifying they assumed the defendant company had liability insurance. The discussion of attorneys’ fees was perhaps more inconclusive although it was not denied this subject was discussed. It was inconclusive only for the reason none of the jurors knew how much the attorneys’ fees would be.

The trial court was not requested and he filed no findings of fact and conclusions of law. Under such circumstances, it is presumed from the order overruling the motion for new trial that the court found no misconduct occurred. However, this rule has no application where there is no conflict in the evidence. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Phillips v. Texas P. Ry. Co. (Tex.Civ.App.), 223 S.W.2d 258, (NRE) ; Parris v. Jackson, (Tex.Civ.App.), 338 S.W.2d 280. We conclude the presumption the trial court found that misconduct did not occur is not applicable here as the evidence conclusively shows it did in fact occur. Whether or not jury misconduct occurred is a question of fact, but whether or not injury probably resulted is a question of law to be decided by the court. Trousdale v. Texas & N. O. R. Co., 154 Tex. 231, 276 S.W.2d 242. In determining this question of law, the court will review the entire record in the case including all the evidence heard on the trial of the case as well as the evidence heard in the motion for new trial. In considering this entire record, we reach the conclusion each of the acts of misconduct probably caused injury to appellant. In addition, their accumulative effect was such to strengthen our view that injury probably resulted. We can only conclude the accumulative effect of these acts complained of constituted material misconduct and requires this cause to be reversed and remanded. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200; Weathers v. Renshaw Bros., (Tex.Civ.App.), 307 S.W.2d 640, (Ref., NRE) ; Murphy v. Davis, (Tex.Civ. App.), 305 S.W.2d 218; Plains Creamery v. Denny, (Tex.Civ.App.), 277 S.W.2d 755, (Ref., NRE) ; Lassmann v. Mueller, (Tex.Civ.App.), 315 S.W.2d 325, (Ref., NRE).

Even though we are of the opinion this case must be remanded because of jury misconduct, we think it advisable to pass on other points of error' which refer to matters which will likely occur in another trial. The next point complains of the failure of the court to submit the issue of unavoidable accident. It was admittedly alleged, and appellant timely requested the submission of the issue. Under such circumstances, if the evidence raises the issue the court is required to submit it. It has been held that a jury issue of unavoidable accident is raised if the evidence shows the existence of an obstacle that might obstruct the view or some cause other than the negligence of one of the parties. Winn v. Taylor, (Tex.Civ.App.), 111 S.W.2d 1149. In examining the evidence to determine if unavoidable accident is involved, the evidence must be construed in the light most favorable to the submission of the issue. Vergauwen v. Parsons, (Tex.Civ.App.), 294 S.W.2d 863; Kuykendall v. Doose, (Tex.Civ.App.), 260 S.W.2d 435, (NRE).

The collision involved here occurred when appellee’s automobile was struck as it backed out onto the highway from a parked position. Another automobile was parked along side appellee, and between appellee’s automobile and the direction from which appellant Hall approached. Pictures of the overall scene which were introduced into evidence clearly show that service station signs and communication poles lined the street along the path of appellant’s approach. It is obvious these obstacles, along with the parked automobile, could easily have obstructed the movement of appellee’s automobile just prior to the time it reached the highway. Under these physical conditions present at the scene we are of the opinion the issue of unavoidable accident was raised, and the trial court erred in refusing this requested issue.

Appellants next complain of ap-pellee’s attorneys’ argument on the failure of appellant to call Dr. Thomas as a witness. The record reflects appellee submitted himself to Dr. Thomas for a physical examination at the request of appellants’ attorney. Attorneys for both parties received a report containing Dr. Thomas’ findings. Appellants contend the reference to their failure to call Dr. Thomas as a witness was error for the reason the doctor was available to both parties alike. Although there are Texas cases so holding, we are of the opinion the Supreme Court has effectively overruled this ruling in Tex-Jersey Oil Corp. v. Beck, supra. The court used the following language:

The right to comment on the failure to call and use an employee-witness does not grow out of the unavailability of the witness but out of his relationship with the opposite party. We think it sound to hold that it is not improper for counsel to comment in argument on the unexplained failure of the opposite party to call as a witness and offer the testimony of one who the record shows to be legally available, and who, while employed by such party, obtained or was clearly in a position to obtain material information on a point at issue in the litigation.”

As the appellee was sent to Dr. Thomas at the appellants’ attorneys’ request, the doctor may be considered appellant’s employee for the purpose of conducting a physical examination. We therefore conclude the argument was not improper. See also Western Fire & Indemnity Company v. Evans, Amarillo Court of Civil Appeals, 368 S.W.2d 114.

Appellants’ last point deals with another alleged improper argument in which reference was made to insurance by the mentioning of Travelers Insurance Company. This was an obvious reference to a former suit in which appellee had a workmen’s compensation suit against the Travelers Insurance Company. Appellants introduced into evidence the judgment and other related documents of that suit which reveal a settlement was entered into. It is to be further noted that the trial court instructed the jury not to consider the remark objected to. We conclude the point of error is without merit.

For the reasons stated herein, the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


author: DENTON, Chief Justice. CHAPMAN, Justice

text:
    PAN AMERICAN INSURANCE COMPANY, Appellant, v. S. A. STOKES, Appellee.
    No. 7268.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1963.
    Rehearing Denied Sept. 3, 1963.

      New & Townes, Denver City, for appellant.
    Huff & Bowers, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Appellee, S. A. Stokes, sued Pan American Insurance Company for total and permanent disability as the result of an alleged injury sustained by him on April 17, 1961 while an employee of McDermett Liquified Gas Company. In response to special issues submitted, the jury found in favor of the claimant, and the trial court entered judgment for appellee for total and permanent disability payable in a lump sum. The insurance carrier assigns as error the overruling of its motion for instructed verdict because it contends it was shown as a matter of law that Stokes was an independent contractor and not an employee; that there was no evidence, and in the alternative, insufficient evidence to support the jury verdict that Stokes was an employee of Mc-Dermett; and there was no evidence to support the finding that another employee of the same class as Stokes had worked 210' days in the same or similar employment the preceeding year.

In March of 1961 Stokes and J. W. Mc-Dermett, owner of the Liquified Gas Company, entered into an oral agreement whereby Stokes was to apply fertilizer on farms, in Cochran County for the McDermett company. The fertilizing was done for customers secured by the company. The fertilizer and the equipment used to apply it was furnished by McDermett, but the tractor used to pull the special equipment was furnished by Stokes. Under this agreement Stokes was paid $1.25 per acre for his work. During one of the fertilizing operations Stokes was injured when a truck tire in McDermett’s pickup blew up and knocked him to the ground.

In determining the question whether a claimant is an employee or an independent contractor the general rules are well established. It is the application of such rules that often presents the difficulty. Although the briefs generally cite different cases to support their respective positions, there is no real dispute as to the law of the case. The Supreme Court in Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905, sets out the essential tests relative to independent contractors as follows:

“The general rule relating to independent contractors rests upon certain recognized tests; although such tests are not necessarily concurrent with each other, nor is each test in itself controlling. Such tests are: (1) The independent nature of his business; (2) his obligation to furnish necessary tools, supplies, and material to perform the job; (3) his right to control the progress of the work, except as to final results; (4) the time for which he is employed; and (5) the method of payment, whether by time or by the job. There are other tests, but the foregoing are considered the essential tests upon which such rule is based.”

However, the supreme test in determining whether one is an employee or an independent contractor is the test with respect to right of control. Standard Ins. Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362; Texas Reciprocal Ins. Ass’n. v. Stadler, 140 Tex. 96, 166 S.W.2d 121; Southern Underwriters v. Samanie, 137 Tex. 531, 155 S.W.2d 359; Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677.

In deciding the “no evidence” points, the evidence must be considered in the light most favorable to the verdict, and if there is any evidence of probative value tending to show that Stokes was an employee of the McDermett company at the time he was injured, the verdict must be upheld. Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; Halliburton v. Texas Indemnity Ins. Co., supra.

Stokes was a farmer by trade and had been a customer of McDermett for several years. At the time the oral agreement was entered into, Stokes had had no previous experience in applying fertilizer, but it is apparent no specilized training or extensive experience was necessary to carry out the fertilizing operation. Customers were secured through McDermett’s office, and Stokes was directed to the particular farms by the company’s office force. The fertilizer and the equipment necessary to apply the fertilizer was furnished by McDermett to Stokes. Stokes furnished his own tractor, and received $1.25 per acre for each acre fertilized. He reported to McDermett’s office between jobs where he was directed to proceed to the next job and was given instructions as to how much fertilizer was to be applied per acre. The depth to which the fertilizer was to be applied was determined by the moisture content of the soil at the time. The amount of fertilizer varied from farm to farm according to the wishes of the owner of the land and the recommendations of McDermett’s employee. To carry out these instructions the operators of the applicators were required to regulate the machines by the adjustment of certain valves and indicators on the applicator. Obviously, very little supervision was required, but there is evidence that the right of supervision and control was retained by McDermett. The fact Stokes employed one Fred Edwards to assist him in operating the machine at various times, and the fact the price was paid on the basis of acreage are facts to be considered, but they are not controlling when the whole relationship is viewed in the light most favorable to the jury finding. We conclude there was evidence to support the finding Stokes was an employee of McDermett rather than an independent contractor.

In general, the only conflict in the evidence goes to the control actually exercised by McDermett or his superintendent. The appellant contends the evidence is that Stokes was free to work at his convenience; that once he secured the fertilizer from the company he alone was responsible for correctly applying it. Stokes did not specifically contradict this testimony, but these elements do not become material in that the work must have been done within the time satisfactory to all concerned, and some supervision was actually given to the work performed by both Stokes and Edwards. The fact Stokes was not required to report for work at a specific time cannot be controlling. Obviously, it was his responsibility to correctly carry out the company’s instructions. The fact remains McDermett or his authorized representative had the right to supervise and control the fertilizing operation performed by both Stokes and Edwards. McDermett owned five other fertilizer “rigs” which were admittedly operated by his employees. Except for the method of payment, there appears to be no distinction between the manner or type of supervision or control exercised over these operators and Stokes. Although the evidence was conflicting to the extent indicated, we are of the opinion the evidence not only raised the issue as to whether Stokes was an employee, but it was sufficient to support the finding that he was. Maryland Casualty Co. v. Kent, (Tex.Com.App.), 3 S.W.2d 414; Southern Underwriters v. Samanie, Supra; Highway Casualty Co. v. W. D. Reid, (Tex.Civ.App.), 311 S.W.2d 484, (Refused, NRE).

The jury found that Stokes did not work in his employment for at least 210 days of the year immediately preceeding his injury; that another employee did so work; and that the average weekly wage of such employee was $66.66. Appellant attacks the finding concerning another employee on the ground there is no evidence to support it. In passing on this point, we are again required to apply the well-settled rule that the evidence must be considered in the light most favorable to the verdict. McDermett had five other fertilizer rigs in operation. Several of them were operated by employees who did work the whole year in other phases of the fertilizer business. The only evidence presented on the question was the testimony of McDermett which we quote as follows:

“Q Do you have or did you have in your employ during the period of time from April 17,1960 until April 17,1961, a person who worked for you as many as 210 days during that period of time who you did use when needed in this fertilizing operation?
“A Yes. Now, they are in the minority, of course, I want to qualify that.”

The law does not require proof that the employment in which such other employee was engaged during the pre-ceeding year be identical work in which the claimant was engaged at the time of his injury. It is sufficient if the employment engaged in by such other employee was of the same class. Texas Employers’ Ins. Ass’n. v. Butler, (Tex.Civ.App.), 287 S.W. 2d 198, (Refused, NRE) ; Texas Employers’ Ins. Ass’n. v. Robison, (Tex.Civ.App.), 241 S.W.2d 339, (Refused, NRE); Traders & General Ins. Co. v. Jenkins, (Tex.Civ.App.), 144 S.W.2d 350. We think there is evidence to support the jury finding that another employee of the same class as Stokes did work substantially the whole of the year immediately preceeding his injury.

The judgment of the trial court is accordingly affirmed.

Affirmed.

CHAPMAN, Justice

(dissenting).

I respectfully dissent.

This writer would have been inclined to agree with the majority opinion before the release by the Supreme Court of Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598. I find myself unable to agree there are any material distinctions between the instant case and that case on the question of independent contractor except that Pitchfork has stronger evidence rebutting the independence of the adjudicated independent contractor.

The majority has said “* * * the supreme test in determining whether one is an employee or an independent contractor is the test with respect to right of control * * * ”, citing a number of Supreme Court cases. If that was the rule the Supreme Court had adopted before the announcement of Pitchfork, it cannot be gainsaid they departed from it in that case. Jim Humphries, Pitchfork’s assistant manager, testified if he had thought he was endangering anybody’s crops he would have stopped the spraying on the occasion in question. How could it be said that did not show the right to control the detail of time and progress in the spraying by Aerial Sprayers ? Time and progress were very important details in that case because of the wind velocity.

In the Pitchfork case the spraying company furnished the moving vehicle for applying the spray just as Stokes in this case furnished the moving vehicle for applying the fertilizer — the tractor. Mc-Dermett furnished the fertilizer and Pitchfork furnished at least part of the spray material. In Pitchfork the spraying company was paid by the acre and in the in- • stant case Stokes was paid by the acre. In Pitchfork the hiring ranch determined the strength of the poison while in the instant case McDermett did not even exercise that control but the amount of the fertilizer was determined by the wishes of the farmers whose land was being fertilized. Stokes made his own decision as to applying the correct amount of fertilizer the farmers wanted by the adjustment of certain valves and indicators on the applicator.

Since this writer authored the Court of Civil Appeals opinion in Pitchfork, part of which was overturned by the Honorable Supreme Court on the independent contractor question, it might be presumed that I would not be inclined to agree with the application of that doctrine the Supreme Court opinion made to the facts of that case. Whether I do or do not is completely immaterial but I certainly recognize we are bound by it. Since we are, I cannot agree Stokes is not an independent contractor in the instant case.

The citation of the Pitchfork case by the majority in the instant case is conspicuous by its absence, and I believe with good reason; that is, the results reached in the two cases cannot be reconciled. Since they cannot, I must respectfully dissent in this case. Since Stokes was an independent contractor under the authority of Pitchfork the case should be reversed and rendered.