text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Carl M. McNIEL, Appellee.
    No. 16736.
    Court of Civil Appeals of Texas. Fort Worth.
    June 17, 1966.
    Rehearing Denied July 15, 1966.

      Stone, Parker, Snakard & Brown, James B. Barlow and G. W. Parker, Jr., Fort Worth, for appellant.
    Jack Gray, Denton, Hill, Paddock & Street and John G. Street, Jr., Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This is a workmen’s compensation case in which the insurer contends there is no evidence or insufficient evidence to sustain the jury verdict of total permanent disability on which judgment was entered. We affirm.

The claimant returned to work about two or three weeks after his accident. After working for about four months following his return he changed employment to work for Dairy-Pak, Inc. The heavy work of loading trucks there bothered his back and he quit and went to work for Shannon Funeral Home driving an ambulance, “side riding” and working funerals. He was so employed at time of trial. According to the carrier’s interpretation of the evidence the incapacity will not meet the requirements prescribed in Texas Employers’ Insurance Association v. Hawkins, 387 S. W.2d 469 (Amarillo Civ.App., 1965, writ ref. n. r. e.) and Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001. It is conceded the evidence may raise partial incapacity but appellant contends it will not legally or factually support total permanent. This is based on the assertion that throughout the trial the claimant’s attorney, by his questions to witnesses and otherwise, was contending that the total and permanent incapacity was based on claimant’s inability to perform a job requiring him to bend, stoop and lift without having back discomfort, and that this is not enough to support a finding of total permanent.

The plaintiff according to the evidence was involved in a violent collision between two trucks which exerted great force on plaintiff’s body. There was medical testimony that the plaintiff was not able to perform the usual tasks of a workman requiring heavy lifting and bending and that there would be some degree of permanency involved. He had to quit two jobs because of his back pain. He had a chronic lumbo-sacral sprain and a disc involvement of the 4th lumbar vertebra with the disc being disrupted or pushed out away from its normal position. Protrusion of a disc and disruption of the nerve sleeve between the 4th and 5th lumbar vertebrae was shown by a myelogram. There is evidence of work under economic compulsion. He is working for less money now and has for the most part since the accident. Activity aggravates his ailment and produces acute pain in his back, hips and legs. Almost every day, after about a week on the Dairy-Pak job, the claimant’s right leg, hip and back would start hurting him; every day •it kept getting a little worse. After three or four weeks here he had to quit because of his back. According to the witness Crites, the accident in which claimant was involved shook the ground. You could hear it all over town. He did not expect him (claimant) to come out of the collision alive, and having observed him after the accident did not figure he would ever live to get to the hospital. Claimant was rendered unconscious by the collision and confined to the hospital on two different occasions.

The hospital records were introduced and claimant’s mother and wife testified as to condition of claimant before and after accident and the insurer’s physician testified that there was asymmetry of the nerve root sheaths, which is abnormal. In Texas General Indemnity Company v. Deaton, 380 S.W.2d 719, 721 (Fort Worth Civ.App., 1964, writ ref. n. r. e.) this court in overruling a contention that the findings were against the great weight and preponderance of the evidence said, “It has been held, however, that in some situations it is not necessary to present physicians as witnesses in order to prove the extent of an injury.” Cases cited.

There is evidence which supports the appellant’s contentions and other evidence which sustains the verdict. The points are overruled. Trinity Universal Insurance Company v. Scott, 342 S.W.2d 348 (Fort Worth Civ.App., 1961, writ ref. n. r. e.); Argonaut Insurance Company v. Shawver, 375 S.W.2d 510 (Dallas Civ.App., 1964, writ ref. n. r. e.).

Further complaint is made of the court’s submission of Issues inquiring into (1) an average weekly wage fair and just to both parties over the objection it was not conditioned on a finding that the average wage could not be proved under Subsection 2, Sec. 1, Art. 8309 Vernon’s Ann. Tex.Civ.St., and (2) whether other employees of the same class had worked at least 210 days, etc. Concerning the latter issue the appellant contends that the affirmative submission of this issue improperly placed the burden of proof. There is no assignment of error in appellant’s amended motion for new trial which in any way directs the attention of the court to or refers to the burden of proof or the proper placement thereof. Error presented on appeal must be predicated upon matter complained of in a motion or amended motion for new trial. Unless a party objecting to a charge distinctly points out the matter to which he objects and the grounds therefor, it is deemed waived. Rule 274, Texas Rules of Civil Procedure.

All the evidence in the case shows that the appellee was entitled to a weekly compensation rate of $35.00 and that the matter of wage rate was fairly submitted by the trial court and without harm to appellant. Rule 434, Texas Rules of Civil Procedure. The latter offered no evidence in regard to Subdivision 2, Sec. 1, Art. 8309, supra. There was testimony that no one in the area was engaged in a similar type of work. The testimony was based on inquiry and investigation. There was no real controversy over the matter in the trial court. The tendency shown by recent decisions of our courts is to require slight proof to negative Sec. 1, Subdivisions 1 and 2 of Art. 8309, supra, especially where no real contest is made of the wage issues. Federal Underwriters Exchange v. Stewart, 109 S.W.2d 1031, 1032-1033, (San Antonio Civ.App., 1937, writ dis.) ; I. C. T. Insurance Company v. Wineman, 308 S.W.2d 549, 551 (El Paso, Tex.Civ.App., 1957, writ ref. n. r. e.); Texas Employers’ Insurance Association v. Cruz, 280 S.W.2d 388, 391 (San Antonio, Tex.Civ.App., 1955, writ ref. n. r. e.) ; Southern Underwriters v. Boswell, 141 S.W.2d 442 (Fort Worth, Tex.Civ.App., 1940, affirmed by Supreme Court in 138 Tex. 255, 158 S.W.2d 280, 1942).

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

Affirmed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    CANAL INSURANCE COMPANY, Inc., Appellant, v. GENSCO, INC., et al., Appellees.
    No. 14484.
    Court of Civil Appeals of Texas. San Antonio.
    June 15, 1966.
    Rehearing Denied July 13, 1966.
    James G. Murry, San Antonio, for appellant.
    Wiley & Thornton, San Antonio, for ap-pellees.
   BARROW, Justice.

This is a declaratory judgment action to determine the nature and extent of coverage on a 1959 White truck-tractor involved in an automobile accident on October 13, 1964. Appellant, Canal Insurance Company, appeals from a judgment rendered following a nonjury trial declaring that its policy afforded primary coverage to appellees, Gensco, Inc., Charles W. Burch and Lee Edward Goffney, and that a policy issued by appellee Employers Casualty Company afforded only excess coverage.

Appellant asserts that its policy does not apply in that the vehicle, as a matter of law, was being used as a “public or livery conveyance” at the time of the accident within the exclusion of said policy, and that it is not estopped from asserting this exclusion. Alternatively, it urges that the two policies should provide equal coverage.

Findings of fact and conclusions of law were filed by the trial court. Under these findings and the undisputed evidence, the following facts are established. Burch, a resident of Houston, was in the business of leasing tractor-trailers. About August 5, 1964, Burch agreed to indefinitely lease three tractors and four trailers to Gensco, Inc., a Texas corporation doing business in Uvalde County, Texas. The 1959 White truck in question was subsequently purchased by Burch and picked up from the dealer by a Gensco driver. Thereafter it was used by Gensco to haul only products owned by Gensco, and not by or for any other party. Shortly after securing the units, Gensco notified Burch that, contrary to the written provisions of the lease, someone connected with the State of Texas required Burch as lessor, to secure a policy of insurance on the vehicles, providing primary coverage. Burch agreed to do this pursuant to Gensco’s demand.

On September 16, 1964, Burch secured a policy of insurance from appellant covering the leased vehicles, including the 1959 White tractor. The policy describes the occupation of the insured as “Truckman-Gensco Co. — Uvalde, Texas.” Appellant’s agent had one or more conversations with Gensco in connection with the issuance of this policy, and the trial court found on conflicting evidence that appellant had knowledge of the lease from Burch to Gensco at the time the policy was issued. A certificate of insurance which required ten days written notice of cancellation was sent to Gensco by appellant at Burch’s request. This policy was in full force and effect and the unit was being operated by Goffney, driver for Gensco, at the time of the accident.

Appellee Employers Casualty Company issued a policy to Gensco, effective from January 1, 1964, to January 1, 1965, which covered all of Gensco’s non-owned vehicles and provided automatic coverage upon the 1959 White tractor as of the date it was first used by Gensco. After the certificate of insurance was furnished by appellant, Gensco was given a 95% discount of the “cost of hire” premium by Employers. The Employers’ policy provides that the insurance under same with respect to loss arising out of the use of any hired automobile insured on a cost of hire basis or the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance.

It is fundamental that for the “public- or livery conveyance” exclusion to apply, it is not enough that Burch be in the rental business, but the named vehicle must actually have been used as a “public or livery conveyance” at the time of the accident. Ft. Worth Lloyds Ins. Co. v. Lane, Tex.Civ.App., 189 S.W.2d 78. The test usually applied by the Courts dealing with the construction and effect of this exclusion clause seems to be whether or not the insured vehicle has been held out to the general public for carrying passengers, and at the time of the accident was actually so used. 30 A.L.R.2d 273; Couch on Insurance 2d, § 45:1040; Lakeshore Development Corp. v. Gulf Ins. Co., 353 F.2d 163 (5th Cir.); Allor v. Dubay, 317 Mich. 281, 26 N.W.2d 772; St. Paul Mercury Ind. Co. v. Knoph, 89 N.E.2d 63 (Minn.1958); Pimper v. National American Fire Ins. Co., 139 Neb. 109, 296 N.W. 465; Elliott v. Behner, 150 Kan. 876, 96 P.2d 852 (Kansas).

Under Texas law, as well as several of the above jurisdictions, this exclusion applies also if the insured vehicle is held out to the general public for carrying freight and is being so used. Concordia Fire Ins. Co. v. Nelson, Tex.Civ.App., 221 S.W.2d 320, wr. ref. n. r. e.; Sonoco Products Co. v. Travelers Ind. Co., 315 F.2d 126 (10th Cir.).

It is our opinion that this exclusion is not applicable to the facts presented by this case, which show that the insured vehicle was leased exclusively to Gensco and used by it to haul only its own products. This vehicle was not available for rent to the public generally. Cf. Concordia Fire Ins. Co. v. Nelson, supra; Sonoco Products Co. v. Travelers Ind. Co., supra. The truck was not being used as a “public or livery conveyance” at the time of the accident.

Furthermore, appellant is precluded under the facts in this case from asserting that the policy did not cover the specific situation for which the policy was secured. The trial court found that Burch specifically ordered this policy to provide primary coverage to Gensco and that appellant, with full knowledge of this lease accepted the premium for this type of risk and issued the policy. These findings are fully supported by the testimony of Burch, Mr. Davis, general manager of Gensco, and Mrs. Brandt, secretary of the insurance agency with whom Burch placed this insurance. By issuance of its policy with full knowledge of the lease, appellant waived its right to rely on this exclusion. National Fire Ins. Co. v. Carter, Tex.Com.App., 257 S.W. 531; Liverpool & London & Globe Ins. Co. v. Ende, 65 Tex. 118 (1885); Old Colony Ins. Co. v. Messer, Tex.Civ.App., 328 S.W.2d 335, wr. ref. n. r. e.; Appleman, Insurance Law & Practice, § 9251. It is unnecessary to discuss the effect of appellant’s payment of a claim on a subsequent accident involving this insured vehicle.

The trial court properly held that appellant’s policy provided valid and collectible insurance on the insured vehicle at the time of the accident. Under the express terms of appellant’s policy, it afforded pro rata insurance with all other valid and collectible insurance. On the other hand, the express terms of the Employers’ policy concerning rented or non-owned vehicles provided excess insurance only over all other valid and collectible insurance. In this situation, the courts uniformly give full effect to the excess clause and require the primary policy to be exhausted before the excess coverage policy becomes effective. Great American Ind. Co. v. McMenamin, Tex.Civ.App., 134 S.W.2d 734 (wr. dism. correct judg.); Citizens Mutual Auto. Ins. Co. v. Liberty Mutual Ins. Co., 273 F.2d 189 (6th Cir. 1959); American Surety Co. v. Canal Insurance Co., 258 F.2d 934 (4th Cir. 1958); United. Services Auto. Ass’n v. Russom, 241 F.2d 296 (5th Cir. 1957); Zurich General Accident & Liability Ins. Co. v. Clamor, 124 F.2d 717 (7th Cir. 1941); Appleman, Insurance Law and Practice, § 4914.

The judgment of the trial court is affirmed.

      . “This policy does not apply:
      (A) except under division 2 of coverage 0 (inapplicable here), while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in this pol-Jgy • ⅜ ⅜


author: GRISSOM, Chief Justice.

text:
    MONICAL & POWELL, INC. et al., Appellants, v. BECHTEL CORPORATION et al., Appellees.
    No. 4068.
    Court of Civil Appeals of Texas. Eastland.
    June 10, 1966.
    Rehearing Denied July 8, 1966.
    Funderburk, Murray & Ramsey, Houston, Ben Ramsey, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Royce Till, Houston, Wiley Thomas, Angleton, for appellees.
   GRISSOM, Chief Justice.

On December 6, 1960, Bechtel Corporation made a contract with Monsanto Chemical Company to construct the latter’s plant and a pipeline into and through Brazoria County. Bechtel Corporation subcontracted to Monical & Powell, Inc. and T-T Construction Company, Inc., that portion of its contract with Monsanto which provided for construction of a pipeline into and through Brazoria County to the Celanese Corporation’s plant. Paragraph 14 of that subcontract provided:

“INJURY OR DAMAGE TO PERSONS AND PROPERTY: Sub-contractor shall be solely responsible for and shall hold contractor and owner free and harmless from any and all losses, expenses, damages, demands and claims arising out of or in connection with injuries (including death) or damages to any and all persons, employees and/or property in any way sustained or alleged to have been sustained in connection with or by reason of the performance of the work by sub-contractor, its sub-contractors, agents or employees.”

A fifty foot right-of-way and directions identifying it were furnished to said subcontractors by Bechtel. Subcontractors’ employee procured a right-of-way over the land of Krause for said subcontractors’ use as a place of entrance and exit to said fifty foot pipeline right-of-way furnished to them by Bechtel. While said subcontractors’ employees were driving a heavy tractor and sleds over their ingress and egress right-of-way and when they were still about 450 feet from the right-of-way furnished by Bechtel, the subcontractors’ employees broke a buried pipeline of Phillips Pipeline Company causing gas to escape and blow said heavy equipment and employees into the air and set them on fire. Four of the subcontractors’ employees were injured and one was killed. Said injured employees, or their heirs, Phillips Pipeline Company and Celanese Corporation sued Bechtel Corporation, Monsanto and others to recover for their injuries and losses. Razo, an employee of subcontractors, sued Phillips Pipeline Company and others for injuries he so sustained. Monical & Powell, Inc., and T-T Construction Company were impleaded in all said suits by Bechtel Corporation, who asserted the right to indemnity. Upon completion of evidence in the Razo case, Bechtel and Monsanto were given instructed verdicts as to their liability to Razo. A severance of Bechtel Corporation’s claim of a right to indemnity against subcontractors was granted. This is an appeal by subcontractors from a judgment in said severed cause wherein the subcontract was construed as making them liable to imdemnify Bechtel and Monsanto against all recovery by reason of said pipeline explosion. The trial court held tha,t Monical & Powell and T-T Construction Company had the duty to defend Bechtel and Monsanto and pay their attorneys’ fees and other expenses incurred in defending such suits, both before and after appellees demanded that appellants defend such suits. Said subcontractors have appealed.

Appellants’ first two points are in substance that the court erred in holding that they owed Bechtel and Monsanto the duty to defend said suits and pay the attorneys’ fees and other expenses they so incurred, because the accident occurred off the pipeline right-of-way furnished by appellees and while the subcontractors’ employees were returning to the subcontractors’ place of business. In support thereof appellants cite Westinghouse Electric Corporation v. Childs-Bellows, Tex.Civ.App., 352 S.W.2d 806 (writ ref.). That case is distinguishable here as it was distinguished by Judge Norvell in Spence & Howe Construction Company v. Gulf Oil Corporation, Tex., 365 S.W.2d 631, at page 635, wherein it was said that in the Westinghouse case the indemnity agreement was executed by Childs-Bellows as prime contractor and Westinghouse as subcontractor; that Westinghouse agreed to indemnify and save harmless the prime contractor from all claims, etc., growing out of performance of the subcontract. Two Westinghouse employees were injured by being struck by objects dropped by employees of Childs-Bellows, (here is the distinction), who were not performing work covered by the subcontract but were working for the prime contractor, Childs-Bellows. Therefore, it was held that the agreement of the subcontractor to indemnify the prime contractor from all claims, etc., arising out of the WORK OF THE SUBCONTRACT was not applicable. The Westinghouse suit was based upon an injury caused by the negligence of the prime contractor’s employees while doing its own work, not that of the subcontract, with reference to which alone the indemnity agreement applied.

The appellant subcontractors say that at the time of the rupture of the pipeline, explosion and injuries they were not doing any work for appellees, had completed work for the day and left the premises of the appellees by a route they had obtained for their own use and were on their way home. They say that location of the job site and work performed under the subcontract were too remote to subject subcontractors to the duty of defending ap-pellees in the lawsuits arising therefrom and to pay their expenses, including attorneys’ fees, incurred in preparing their defense.

Appellees say appellants are obligated to defend any lawsuit, and pay the expenses appellees reasonably incur, brought by reason of injuries or damages so sustained, or alleged to have been sustained, in performing the work of the subcontractors. Appellees’ right to indemnity does not depend upon any finding of the cause of the explosion. The contract does net limit the subcontractors’ liability to indemnify appellees to injuries or damages suffered while appellants were working on the job site. Appellees say it is sufficient, even if it is merely alleged, that injuries or damages were sustained in connection with appellants performance- of said subcontract; that subcontractors are liable for indemnity, regardless of where such work is performed. Appellees have never contended that subcontractors are required to indemnify appellees against the negligence of Phillips Pipeline Company. The subcontractors’ agreement is simply that they will indemnify appellees for injuries or damages to any person or property in any way sustained, or ALLEGED TO HAVE BEEN SUSTAINED, in performance of the work of the subcontract. The plain language of the indemnity contract is that the subcontractors agree to hold Bechtel Corporation and Monsanto free and harmless from all losses, expenses, damages and claims arising out of or in connection with injuries to any person, or damages to any property, sustained, or alleged to have been sustained in performing the work of the subcontract.

Contrary to the subcontractors’ contention, appellees say it is undisputed that this accident occurred while subcontractors’ employees were engaged in performing their subcontract. Appellants’ general superintendent so testified. The judgment in the Razo v. Phillips Pipeline Company was made a part of this record and is evidence herein. Said general superintendent for said subcontractors testified that when this accident happened Razo, one of the five employees of the subcontractors injured by the explosion, sustained his injuries while he was working for said subcontractors and performing their subcontract. In answer to requests for admissions subcontractors admitted that at the time of said explosion the subcontractors were, through their injured employees, engaged in performing the work of their subcontract. They admitted that, while their employees were engaged in performing said subcontract, there was an explosion when a pipeline owned by Phillips was broken by them. Appellants’ first two points are based upon the contention that their employees were returning to their employer’s place of business at the time of the accident. Appellants say there is no evidence thereof. We have been unable to find any. The testimony of appellants’ general superintendent and said admissions are to the effect that appellants’ employees were engaged in performance of the said subcontract at the time of the explosion. The record shows that, just prior to the accident, appellants’ employees, on their right-of-way for ingress and egress to the pipeline site, had loaded a sled pulled by a bulldozer and were taking a load to the pipe line right-of-way when the accident occurred. The allegations in Razo’s suit, as well as in said other suits, are that injuries and damages were sustained by appellants’ employees while they were performing the work of the subcontract. The undisputed facts establish the subcontractors’ liability to indemnify appellees from such suits and pay the expenses and attorneys’ fees recovered.

In Ohio Oil Company v. Smith, 365 S.W.2d 621, 627, our Supreme Court in passing upon such an indemnity contract as that now before us said:

“It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls. See: Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620; See generally: Williston on Contracts § 610; Restatement of the Law of Contracts, § 230.”

The same rule was stated in Spence & Howe Construction Company v. Gulf Oil Corporation, (Sup.Ct.), 365 S.W.2d 631, 637. There is no material distinction between the contract in the Ohio cases and the contract here in question. The contract here, like those in said cited cases, provides indemnity for injuries or damages in any way sustained, or alleged to have been sustained, in connection with or by reason of performance of the subcontract. It is clearly and concisely stated and shows the intention of the parties that appellants shall indemnify appellees under the situation shown. There is nothing in this contract limiting the liability of appellees to accidents which occur upon the right-of-way furnished appellants by Bechtel and Monsanto. No authority cited sustains such contention.

The Judge was the trier of facts. The evidence mentioned supports the court’s findings that the explosion and resulting injuries occurred while appellants’ employees were performing, and were, of course, alleged to be performing, the work of appellants under said subcontract. It was by reason of this explosion that Razo and other employees of appellants sued. The court’s finding and the indemnity provision of the subcontract establish the liability of appellants as fixed by the judgment appealed from. It cannot be said, as a matter of law, that such suits are not covered by said indemnity provision.

Appellants contend that attorneys’ fees and expenses incurred by appellees in preparing their defense cannot be recovered, even if the subcontractors are liable to indemnify appellees. They say the indemnity contract is ambiguous and does not specifically provide for attorneys’ fees. They cite Miller v. Bush, Tex.Civ.App., 42 S.W.2d 156 (writ ref.), and William Cameron & Company v. American Surety Company of N. Y. (Tex.Com.App.), 55 S.W.2d 1032. They are not in point. The contract in the Miller case provided for indemnity only for the amount the directors were required to pay as a result of procuring a loan for the corporation. The Cameron case involved a surety bond which provided for indemnity only against costs and damages. In this case, the indemnity contract provides that appellants shall hold appellees free and harmless from any and all losses and expenses arising out of, or in connection with, injuries sustained, or alleged to have been sustained, by reason of performance of the work of the subcontract. Unless the indemnity contract protected appellees from such attorneys’ fees and expenses, appellees would not be fully protected, indemnified and saved harmless from all expenses, etc., as clearly provided by the indemnity contract. Mitchell’s Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775; Sigmond Rothschild Company v. Moore, Tex.Civ.App., 166 S.W.2d 744 (Ref. W.M.), 27 Amer.Jur. 474.

In appellants’ discussion of attorneys’ fees they do not mention Ohio Oil Company v. Smith, supra. Appellants do not question that decision on the indemnity question. They attempt to distinguish it. We agree with appellees that they failed to so do. In Ohio Oil Company v. Smith, Ohio was awarded a summary judgment against Smith for $51,000.00, plus expenses and attorneys’ fees incurred by Ohio in defending against the claim of Smith’s injured employee. In passing upon the question of whether Ohio was entitled to such attorneys’ fees the Supreme Court said in 365 S.W.2d 621, at page 627:

“Smith agreed to ‘ * * * save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to * * * any person * * * arising out of or attributed, directly or indirectly * * * ’ to his operations under the contract. Hunt’s injuries may certainly be attributed to Smith’s operations, and the indemnity provision makes reference to the objective of the contract. When the in-demnitor has agreed to save and hold harmless the indemnitee from liability for any and all claims and damages of every kind attributed directly or indirectly to his operations under the contract, the indemnitee may have recovery over and against the indemnitor for all reasonable expenses incurred in defending or settling the claim asserted against him.” (Italics ours.)

Appellants do not question the reasonableness of the expenses or attorneys’ fees incurred by appellees. We conclude that the court properly awarded appellees said expenses, including attorneys’ fees.

Appellants contend the judgment for indemnity should be reversed because the indemnity contract does not provide for notice as a prerequisite to indemnity. Cases cited by appellants as authority therefor interpreted insurance contracts which contained specific requirement for notice. The indemnity contract here contained no such requirement. It is undisputed that appellees made written demand upon appellants to defend every suit filed against appellants as a result of said accident and that appellants refused to defend them. Demand was not made until suit was filed against appellees, but appellants were aware of the accident when it occurred and had attorneys representing them perpetuating testimony. Appellants have always contended, as they do now, that they have no obligation to defend appellees. They are not in a favorable position to contend that they are not liable for expenses incurred before formal written demand for defense was made, since they have always contended that they had no obligation to defend appellees.

Appellants contend the court erred in holding they were required to pay ap-pellees’ expenses and defend all future litigation growing out of said accident because allegations in future suits are unknown and damages unliquidated. All employees of appellants injured in said explosions and all persons who sustained property damages as a result thereof have already filed suits and all, except that of Razo, are now pending, and appellees are defendants therein. The accident happened on January 29, 1962. Claims resulting therefrom must be based on tort. The two year statute of limitation prevents the filing of further enforceable suits as the result of such accident. There will be no “unknown” future litigation. Appellants’ liability to defend appellee from suits brought by reason of performance of the subcontract does not depend on jury, or fact, findings. The court correctly held that the contract entitled appellees to full and complete indemnity for expenses, including attorneys’ fees, incurred, from the time of the accident. The judgment- is based upon said contractual obligation of appellants to indemnify appellees and not upon the common law right of indemnity.

We have considered all of appellants’ points. They are overruled. Reversible error is not shown. The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    William E. HOLZAPFEL, Appellant, v. Mildred BRUEGGMAN et al., Appellees.
    No. 200.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 9, 1966.
    Rehearing Denied June 29, 1966.

      Tom Cheatham, Cuero, for appellant.
    Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellees.
   OPINION

GREEN, Chief Justice.

Appellant, William E. Holzapfel, brought suit against appellees for specific performance of a written contract for the sale of land. The contract was between appellant as buyer and appellee Brueggman as seller. Appellee Lewis Vowell was named a defendant because after the contract was made, he purchased the land from Bruegg-man, and was claiming title.

The case was tried before the court and jury. After the close of the evidence on June 8, 1965, the trial court directed counsel for both parties to submit in writing at 9:00 a. m. on June 10, such special issues as they would request, and he excused the jury until that time. Appellant prepared and submitted to the court seventeen special issues. Appellees admitted the facts to be as contended by appellant with reference to such of the issues as called for pure fact answers. Thereupon, the court ruled that there were no material fact issues to be submitted and discharged the jury, and proceeded to hear oral argument from counsel on the law of the case. A take-nothing judgment was rendered by the court.

Appellant’s brief contains twenty points of error. Points Nos. 3 to 19 inclusive are each directed at the alleged error of the court in refusing to submit to the jury a requested special issue. These points were not briefed in accordance with the requirements of Rule 418, Texas Rules of Civil Procedure. Hartford Fire Insurance Company v. Christianson, Tex.Civ.App., 395 S.W.2d 53, p. 65, writ ref. n. r. e. On oral argument, appellant expressly waived consideration by this court of said seventeen points. There was no dispute on the trial, and appellee readily stipulated to the trial court and appellant at the close of the evidence, that the contract in question was duly executed by the parties and timely filed for record with the county clerk of DeWitt County, Texas, wherein the land is located, that defendant Vowell had both constructive and actual notice of the provisions of said contract before and at the time of his purchase of said land from his co-defendant, that defendant Brueggman had failed to comply with the provision of the contract that she furnish appellant with an abstract to the property and had failed and refused to convey said property to appellant, that appellant was at all times ready, able and willing to purchase the land on the terms specified in the contract, and was at all times claiming the right to purchase the land on the terms named in the contract, and that defendant Brueggman sold the land to Vowell after entering into the contract with appellant. These were the fact matters which were inquired about in appellant’s requested issues. We find that the trial court did not err to appellant’s prejudice in refusing to submit appellant’s requested special issues to the jury.

Appellant’s first point is as follows:

“APPELLANT’S FIRST POINT
“The Trial Court erred in holding that there were no issues of fact to he submitted to the jury, taking the cause from the jury, and rendering judgment by the Court against Appellant and in favor of Appellees, in direct conflict with the former and prior judgment of said Court in overruling Motion for Summary Judgment in this cause for the reason that said Court decreed that a material fact question existed in said cause of action.”

The fact that the trial court, following a hearing on motions for summary judgment filed by each party, stated in its order that, having considered the pleadings, evidence, and argument of counsel in connection with said motions, he “is of the opinion that a material fact question does exist, and that, therefore, both of said motions for summary judgment should in all things be overruled” is not res judicata that a fact question which should be submitted to a jury will be raised on the trial on the merits. When the trial court proceeds to hear a motion for a summary judgment, he decides whether or not a genuine issue of a material fact is presented from the evidence then before him at the time the motion is heard, and whether from such evidence the moving party is entitled to judgment as a matter of law. Rule 166-A(c), T.R.C.P. On the subsequent trial of the cause on the merits, after a motion for summary judgment is overruled, the existence of disputed issues of material facts to be submitted to a jury depends entirely upon the evidence introduced at such trial.

Appellant’s First Point is overruled.

Appellant’s Second Point reads:

“APPELLANT’S SECOND POINT
“The Trial Court erred in permitting Appellees to orally urge the affirmative defense of lack of mutuality of remedy of said contract of sale, over the objection of Appellant that Appellees had not pleaded the lack of mutuality of remedy of said contract of sale in any of their pleadings, as a defense.”

It will be noticed that appellant’s complaint here is that the trial court erred in permitting appellees’ counsel to urge a point of law to the court. There is no suggestion in appellant’s point, or in his statement and argument under the point, that this argument had any effect upon the trial court, or that he approved same, or based his decision in whole or in part thereon. It is not reversible error for a trial court to listen to counsel argue, mistakenly, a point of law. Without deciding whether lack of mutuality of remedy is a defense which must be plead as a defense, we overrule appellant’s Second Point.

Appellant’s Twentieth and last Point of Error reads:

“APPELLANT’S TWENTIETH POINT
“This case should be reversed because the Court, after all the evidence had been introduced, and the Plaintiff, at the direction of the Court, had prepared and submitted to the Court Plaintiff’s specially requested issues, the Court, in blanket form, refused all of Plaintiff’s said specially requested issues, and, on motion of the Court as requested by Defendants, determined and found that there were no issues of fact to be submitted to the jury, and after such determination, the Court discharged the jury, and proceeded to entertain the argument of Plaintiff and Defendants on the matters of law concerning this cause, and the Court thereafter, under date of August 6th., 1965, entered nunc pro tunc judgment that Plaintiff should take nothing as against the Defendants, Mildred Brueggman and Lewis Vowell.”

We consider the point as being multifarious and too general to comply with the requirements of Rule 418, T.R.C.P. It is multifarious because it, in one point, enumerates several different actions of the court as being reversible error, to-wit, (1) the court’s refusal, in blanket form, of all of appellant’s requested special issues; (2) the court’s determination that there were no issues of fact to be submitted to the jury; (3) the court, after discharging the jury, proceeding to entertain argument of plaintiff and defendants on the matters of law concerning the case, and (4) the subsequent entry of a “nun pro tunc” judgment that plaintiff take nothing as against the defendants. Appellate Procedure in Texas, § 12.4, Multifarious Points of Error; Johnson-Sampson Construction Company, Inc. v. W & W Waterproofing Company, Inc., 274 S.W.2d 926, writ ref., n. r. e.; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785, writ ref., n. r. e.; Darling v. Panhandle & Santa Fe Ry. Co., Tex.Civ.App., 209 S.W.2d 660, writ ref., n. r. e.; Tatton v. Aransas County, Tex.Civ.App., 359 S.W.2d 200.

The portion of the point claiming as reversible error the entry of the judgment that plaintiff take nothing as against defendants is too general in that it does not direct the attention of this court to the particular error relied upon. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941; Isenhower v. Bell, Tex.Sup.Ct., 365 S.W.2d 354; McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643. That such a point does not comply with the briefing rules has been decided in a number of Texas cases, including Covington v. City of Denison, Tex.Civ.App., 369 S.W.2d 824; Flock v. Kelso, Tex.Civ.App., 366 S.W.2d 698; McDonald v. Grant, Tex.Civ.App., 312 S.W.2d 694; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, writ ref., n. r. e.; Little v. Employees Security Life Ins. Company, Tex.Civ.App., 343 S.W.2d 517; White v. Great American Reserve Insurance Co., Tex.Civ.App., 342 S.W.2d 793; Crutchfield v. Associates Investment Company, Tex.Civ.App., 376 S.W.2d 957, writ ref.; Winn-Lee Masonry Co. v. McClendon Construction Company, Tex.Civ.App., 305 S.W.2d 823; Pleasant Grove Builders, Inc. v. Phillips, Tex.Civ.App., 355 S.W.2d 818, writ ref., n. r. e.

Although we hold that Point Twenty is multifarious and too general to comply with Rule 418, T.R.C.P., we shall discuss the grounds, as we understand them, on which appellant relies as disclosed in his statement and argument accompanying said point to determine whether reversible error is shown. Tindall v. Tacconelly, supra; Crutchfield v. Associates Investment Company, supra; Covington v. City of Denison, supra.

In his statement under this point, jointly briefed with First Point, appellant summarizes in some detail the testimony of the witnesses which, as appellees stipulated then and agree now, established that the contract of sale had been duly executed by the parties, had been recorded, that the defendant Brueggman had failed to perform under the contract, and had refused to deliver to appellant an abstract of title to the property as provided by the contract though frequently requested by appellant to do so, that the defendant Brueggman had subsequently sold the property to defendant Vowell, that Vowell was constructively and actually possessed of knowledge of the existence of the contract of sale to appellant, and that appellant had been at all times ready, able and willing to perform the contract.

However, appellant fails to set out any argument to establish that the trial court erred in refusing, on the pleadings and these uncontroverted facts, including the terms of the written contract, to decree the equitable relief of specific performance. Instead, he argues exclusively that the court erred in not submitting special issues to the jury. He contends as fundamental error the failure to submit the issues of laches, plead by defendants as a defense. There was no evidence in the record to support such a defense, no special issue or finding by the court on such plea was requested by the defendant, and there is no contention made by either party that the court’s judgment was in any way based on a finding of laches. He argues under this point that the court was required to submit to the jury issues requesting whether the appellee Brueggman breached her contract with appellant, and whether Bruegg-man failed and refused to furnish an abstract to appellant, and whether appellant used reasonable efforts to have appellee Brueggman comply with the contract, and whether Vo well was an innocent purchaser for value of the land. We have already shown that the affirmative of all of these facts were conceded by appellees, and found to be true by the court, and have held that the court did not commit reversible error in refusing to submit such issues to the jury.

The above constitutes practically the entire argument of appellant under Point 20. There is no discussion of any law pertaining to specific performance. The law does not impose upon the appellate court the duty of discovering, from the pleadings, evidence and other matters of record whether the trial court has committed reversible error in its decision of the case. The duty of designating the particular error relied upon rests upon counsel for the appellant. Missouri-Kansas-Texas Railroad Co. v. McFerrin, supra; McClanahan v. Cook, Tex.Civ.App., 401 S.W.2d 352. One of the main purposes of the rule with reference to the requirements of briefs in the Courts of Civil Appeals is to require counsel to put before the appellate court at least the substance of the point relied on for reversal, and to relieve the court from having to piece together a point for appellant from examination of the transcript and statement of facts. Isenhower v. Bell, Tex.Sup.Ct, 365 S.W.2d 354, 358.

Appellant’s Twentieth Point does not disclose reversible error on the part of the trial court, and is overruled.

Judgment affirmed.


author: NYE, Justice.

text:
    W. C. COUCH et al., Appellants, v. Gladys Gurley HALE, Appellee.
    No. 198.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 16, 1966.

      Kleberg, Mobley, Lockett & Weil, by Leslie S. Lockett, Corpus Christi, for appellants.
    Branscomb, Gary, Thomasson & Hall, by Richard Hall, Fischer, Wood, Burney & Nesbitt, by James R. Harris, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a personal injury suit brought by Gladys Gurley Hale as a result of an in-tersectional collision in Aransas Pass, Texas. Essentially, there are three parties to this suit. Mrs. Hale, hereafter called ap-pellee, was a passenger in a taxicab driven by L. E. Bailey and owned by W. C. Couch, hereafter referred to as appellants. The other car was owned by F. E. Brown, Jr., and driven by his father, F. E. Brown, Sr., hereinafter referred to as defendant Brown.

The accident giving rise to this suit occurred at approximately 1:00 o’clock in the morning. Mrs. Hale was a waitress in a cafe and had finished her work and was en route home when the accident happened. She entered the cab and sat on the right hand side of the front seat. Appellant Bailey proceeded east on Greenwood Street to its intersection with Arch Street where the accident happened. Both cars were approximately in the center of the intersection at the point of impact. The evidence showed that the point of impact on appellant Bailey’s taxi was at or near the right front wheel and the point of impact on defendant Brown’s vehicle was approximately at the left front portion of his car. There was a stop sign on Arch Street facing defendant Brown’s vehicle as he approached the intersection heading north. The court, in a preliminary summary judgment proceeding, held that the stop sign had been illegally erected and maintained and that the failure of defendant Brown to stop would not be negligence per se. On the southwest corner of the intersection there was a warehouse building sitting on pilings partially blocking the view of both drivers as they approached the intersection. The building, was seventeen and one half feet from Arch Street and twenty feet from Greenwood Street. The character of Greenwood Street, the one on which the taxi was proceeding, changes from pavement to one of gravel immediately on the other side of the intersection with Arch Street.

The case was tried to a jury and in response to thirty-three special issues, judgment was entered for appellee Hale and against appellant Bailey, appellant Couch and defendant F. E. Brown, Sr. It was undisputed that Bailey was operating in the course and scope of his employment as a taxi driver for the owner, appellant Couch. In addition to this suit of Mrs. Hale, appellant Bailey filed a cross-action against defendant Brown for his personal injuries. Because of this cross-action against defendant Brown, and because Bailey was operating a common carrier and was therefore obligated to exercise a high degree of care as to appellee Hale, issues concerning negligence of Bailey were submitted, both as to ordinary care and as to high degree of care.

The jury found from a preponderance of the evidence that immediately before the collision in question, Lee Bailey failed to keep such a lookout as would have been kept by a person exercising a high degree of care, and that this was a proximate cause of the collision in question. The jury found that Bailey failed to make such application of the brakes of his taxi as would have been made by a person exercising a high degree of care and that this was a proximate cause of the collision. Special issue 7 inquired as to which driver should have yielded the right-of-way at the time and on the occasion in question. The jury answered “Bailey”; that Bailey’s failure to yield the right-of-way was negligence and a proximate cause. Each of these issues as to lookout, brakes and failure to yield the right-of-way were separately submitted on high degree of care and ordinary care and all of them were found against Bailey. The jury found further that defendant Brown failed to keep a proper lookout, which was a proximate cause; did not stop his vehicle before entering the intersection; and that was negligence and a proximate cause. Both drivers were acquitted as to excessive speed.

Appellants’ points one and two complain of the trial court judgment against them because there was no evidence or there was insufficient evidence that Bailey did not keep a proper lookout, whether this be a high degree of care or ordinary care. Appellants’ points three and four concern no evidence and insufficient evidence that Bailey did not make a proper brake application, whether this be ordinary care or high degree of care. Point five was that there was no evidence that Bailey failed to yield the right-of-way or that this was a proximate cause of the collision, and point 6 that there was insufficient evidence in this regard.

The trial court instructed the jury that the term “ordinary care” as used in the charge is meant such care as a person of ordinary prudence would have used under the same or similar circumstances. The court further instructed the jury that Bailey, as a carrier of passengers, was under a duty to appellee Hale to exercise such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would have been used by a very cautious, prudent and competent person under the same or similar circumstances. Continuing, the court said: “You are instructed that the term ‘high degree of care’ as used in the following special issues refers to this high degree of foresight and prudence as hereinabove defined.” There was no objection made to this special instruction by the trial court.

In considering the “no evidence points” the record must be viewed in the light most favorably in support of the judgment of the trial court and the jury verdict. In this regard this court in considering the sufficiency of the evidence, (under the no evidence point) must disregard all evidence adverse to the findings of the jury and consider only the evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold them. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Fisher Construction Company v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inference and deductions from the evidence adduced before it. Its findings may not be disregarded if the record discloses any evidence of probative value which, with inference that may be properly drawn therefrom, will reasonably support the same. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). The Court of Civil Appeals is without authority to disregard the jury’s findings to special issues where there is some evidence in the record to support the findings. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600, (Supreme Court 1951). Insofar as there may be conflict in the testimony of the witnesses it is clear that the jury, in the exercise of its prerogative, is the sole judge of the facts proven, of the credibility of the witnesses and the weight to be given their testimony. It is well settled that any ultimate issues may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, supra; English v. Miller, Tex.Civ.App., 43 S.W.2d 642, wr. ref. With these principles in mind we will review the “no evidence points” concerning the failure of Bailey, in operating the taxi, to keep such a lookout as would have been kept by a person exercising that high degree of care as defined by the court.

The evidence was undisputed that appellant Bailey usually drove his taxi at a speed of twenty to twenty-five miles per hour and that he was going down Greenwood at approximately this speed. In 16⅝) deposition he originally testified that he did not slow down at the intersection before the accident. However, he changed his deposition some sixteen times generally to “I don’t remember” answers. There was evidence that Bailey had suffered some degree of loss of memory. Throughout the trial his answers for the most part were to the effect that he could not remember or that he did not recall. Most of his evidence was negative in character.

Defendant Brown testified that the taxi was travelling partially on the wrong side of the road or a little over the center strip, and that he saw the taxi just before the impact; that there was no indication that the cab was turning to its left, but on the contrary was heading straight down Greenwood. He testified that at the stop sign he either stopped or came to a speed of less than one mile per hour and then travelled some fifteen or twenty feet to the center of the intersection where the point of impact occurred, reaching a maximum speed of around ten miles per hour. He estimated that it was five seconds after he left the stop sign to the point where the accident occurred. He testified that the operator of each car could have seen the other for a half a block and that he either entered the intersection before the taxi, or that they reached the middle of the intersection at approximately the same time. Defendant Brown’s son corroborated this testimony to the extent that the accident occurred five to ten seconds after the car had decelerated at the stop sign.

The investigating police officer testified that there was no physical evidence that the taxi had turned to the left to take evasive action; that there were no skid marks except those caused by the impact. He further testified that the building which partially blocked the view of both drivers was off the ground some three or four feet on pilings and that a driver approaching from either side could see the surface of the other road underneath the building. He testified that a person stopping at the stop ’’'sign would be able to see clearly for a considerable distance west toward the approaching taxi and that a person in the approaching taxi could see the vehicle nearing the intersection. He testified that it is a well known fact that between the hours of one and three o’clock in the morning, cars are more likely to slow down rather than stop at stop signs in Aransas Pass. Appellant Bailey confirmed this. There was other evidence, such as the fact that Bailey’s vehicle continued for seventy feet after the impact and Brown’s vehicle twenty feet and that both cars were damaged very extensively. The jury was entitled to conclude from all of this evidence that the cars, being visible to one another for a time, either or both drivers could have seen each other in time to have taken evasive action. There was no evidence that Bailey took any such action.

Flanagan, the expert witness, testified that at twenty miles per hour the taxi could have stopped at a distance of twenty to twenty-two feet excluding reaction time. Based upon his estimate that defendant Brown’s vehicle was going fifteen miles per hour at the point of impact, and based upon the testimony that Brown had nearly stopped at the stop sign, his average speed from that point over a distance of thirty-one feet to the point of impact, would have placed the taxicab ninety feet away. At twenty miles per hour the taxi was travelling twenty-nine feet per second. Allowing one second for reaction time, appellant Bailey had sixty feet within which to bring his taxicab to a stop. The jury could have properly concluded that if appellant Bailey had been exercising that high degree of care required under the circumstances, by keeping a proper lookout, then the accident would not have happened.

One of the issues that developed from the evidence was whether or not appellee Hale had detracted appellant Bailey sufficiently to have been a proximate cause of the collision. There was testimony to the effect that she handed him two quarters (the fare); that he reached out and accepted the money with his right hand and placed it in his pocket. There was evidence that this occurred within the block preceding the collision. The jury found that this action on the part of appellee Hale distracted Bailey immediately prior to the accident. However, her acts were not a proximate cause of the accident. It may have been a reasonable deduction on behalf of the jury that Bailey was not exercising that high degree of care at the time he accepted the fare and was detracted. This could have been a circumstance that caused his failure to keep a proper lookout. Although appellant Bailey contends that none of his admissions in his deposition or his testimony at the trial are to be given any weight because of his partial loss of memory, we believe that this was up to the jury to decide. Bailey admitted that he did not hear any brakes screech prior to the collision. At one point in his testimony where he described the building to his right at the corner of Arch and Greenwood, he was asked the question as to whether or not he could have seen car lights on the road at night time coming along Arch Street. Bailey stated: “You might, if that street light was not there where it would light the street up where it didn’t make a whole lot of difference.” Then, after testifying as to how close the building was to the street, he was asked the question: “So up to that point as you drive along Greenwood up to the intersection of Arch Street you are just sort of flying blind, are you not?” Answer: "yes, si».” (emphasis supplied) At another place in the testimony, Bailey was asked: “Q. All right, sir. And you were award on this night as you approached the intersection of Arch and Greenwood Streets that you had this building on your right that prevented you from seeing vehicles approaching on Arch. Is that correct? A. Yes, sir.” This would warrant the jury’s belief that Bailey knew that this was a blind intersection and would require a proper lookout to be maintained in the direction of the blind corner. As to speed, he was then asked the question: “To the best of your recollection then you proceeded on at the same rate of speed? ” He answered: “Yes, I might have slowed after I got through the intersection if I hadn’t got hit because it was pretty rough (road surface) on the other side of the intersection.”

If the jury chose to believe that defendant Brown slowed or nearly stopped at the intersection, and then took five to ten seconds to drive from that point, to the point of impact, the Brown vehicle would have been visible for this same length of time to a person approaching the intersection, if he was keeping a proper lookout.

Finally, at another place in the testimony, we quote Bailey:

“Q. Now, Mr. Bailey, how far were you from the intersection when you first saw the Brown automobile ?
A. I don’t remember seeing it.
Q. Did you ever see it?
A. No.”

We believe the jury would be warranted in finding that defendant Bailey failed to keep that proper lookout as was required of him. Appellants’ point one is overruled.

Concerning appellants’ fifth point the same rules are applicable. The intersection in question was technically uncontrolled because of the illegally erected and maintained stop sign. Art. 6701d, Sec. 71, Vernon’s Ann.Civ.St., states that: “ * * * [t]he driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.” (entering first)

“When two vehicles enter the intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” Reconstruction of the evidence as appellee contends, it shows that the point of impact was approximately in the center of the intersection. The expert witness testified that based on his calculations, Brown’s average speed was seven and one-half miles per hour from the stop sign to impact point; and that when Brown left the stop sign the cab was ninety feet from the intersection. The- evidence shows that Greenwood was thirty-seven feet wide and Arch Street twenty-seven feet. Brown’s vehicle had to travel eighteen and one-half feet to reach the middle of the intersection, while the taxicab had to travel thirteen and one-half feet to reach the same point. Viewing the evidence favorable to the jury finding, the taxicab was travelling at a higher rate of speed than the Brown vehicle; therefore, it would be obvious that it would require a longer period of time for Brown to traverse the greater distance at a lesser speed. This would place Brown into the intersection first, or at least entering the intersection at approximately the same time. Accepting as true this evidence, it would support the jury’s findings that Bailey failed to yield the right-of-way to Brown. Appellants’ point five is overruled.

Appellants’ points two and six concern the insufficiency of the evidence as to lookout and right-of-way. This requires the court of civil appeals to balance substantial evidence that supports the verdict, against substantial evidence that is against the verdict as to whether the great weight and preponderance of the evidence favors, or is against the verdict. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (Supreme Court 1958). After considering all the evidence, we conclude appellants’ points are not well taken. Fisher Construction Company v. Riggs, supra. Points 2 and 6 are overruled.

Appellants’ seventh point complains of the judgment of the trial court because the findings of the jury that Brown ran the stop sign which was negligence and a proximate cause of the collision are in irreconcilable conflict with all of the jury’s findings which are adverse to appellants. Ap-pellee argues that although the jury found that defendant Brown disregarded this illegally erected stop sign, this did not constitute a violation of the law so as to be negligence per se, but only permitted a finding of ordinary negligence against him. Appellants argue that vehicles are accustomed to stopping and obeying stop signs and appellant Bailey was entitled to rely on this whether they are illegally placed or not. However, there was testimony that Bailey himself knew that late at night many people did not altogether stop at stop signs.

In a case involving a vehicle and a pedestrian and the failure of the pedestrian to keep a proper lookout, judgment for the driver of the vehicle was affirmed. Plata v. Gohman, 359 S.W.2d 163, Tex.Civ.App., 1962, ref. n. r. e. The Court said:

“ * * * Intersection cases are not precisely in point, but they suggest similar rules and results with respect to the facts and circumstances which must be considered. The principle is the same. Even one who has the right of way is not excused from exercising ordinary care for his own safety. Even though one is not required to anticipate negligent conduct, he is not entitled to close his eyes to that which is plainly visible and which would have been observed by a person of ordinary prudence ‘similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785; Norris Bros. v. Mattinson, Tex.Civ.App., 145 S.W.2d 204; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910.”

We hold that even with the negligent act of defendant Brown in failing to stop, which was a proximate cause of the collision, this act did not excuse the negligent conduct on the part of appellant Bailey. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (Supreme Court 1955); McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (Supreme Court 1957); Skyline Cab Co. v. Bradley, 325 S.W.2d 176, Tex.Civ.App.1959, ref. n. r. e.; El Paso City Lines, Inc. v. Dudney, 280 S.W.2d 303, Tex.Civ.App.1955, ref. n. r. e. As was said by Justice Walker of the Supreme Court:

“If the driver who is under statutory duty to yield the right-of-way fails to do so, the exercise of ordinary care may require the operator of the other vehicle to yield.”

McWilliams v. Muse, supra. Appellants’ seventh point is overruled. Appellants’ points 3, 4, 8, and 9 concern no evidence, insufficient evidence, and the manner of submission of the special issues concerning brakes. Because of the disposition we have made of this case, it is not necessary to discuss these points. The jury found that appellant Bailey was negligent on two other independent grounds. The submission of the issues concerning brakes, even if they were in error, do not amount to reversible error of this judgment. Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806 (1958); Prasek v. Dudley, 395 S.W.2d 876 (1965), Tex.Civ.App., ref. n. r. e; Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 (Supreme Court 1956); Dedear v. James, 184 S.W.2d 319, Tex.Civ.App. (1944), wr. ref.; Panhandle & Santa Fe Ry. Co. v. Walker, 364 S.W.2d 433, Tex.Civ.App. (1963), n. r. e.; Missouri Pac. Railroad Co. v. Sims, 350 S.W.2d 405, Tex.Civ.App. (1961), n. r. e.

In view of the disposition of this case, the position of appellee Brown in this court is immaterial. The motions filed by the other parties to strike his briefs are therefore dismissed.

Judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. Lawrence TERREL, Appellee.
    No. 7633.
    Court of Civil Appeals of Texas. Amarillo.
    June 27, 1966.

      Wm. J. Zeman and Lloyd G. Minter, Bartlesville, Okl., C. J. Roberts and C. Rex Boyd, Amarillo, for appellant.
    Alien, Allen & Reavis, Perryton, for appellee.
   NORTHCUTT, Justice.

This is an action for damages brought by Lawrence Terrel, hereinafter referred to as appellee, against Phillips Petroleum Company, hereinafter referred to as appellant, to recover damages allegedly sustained by appellee as a direct and proximate result of the pipe line installation by appellant on the land farmed by ap-pellee. The case was tried to a jury upon special issues. In answer to the issues submitted the jury found the appellee sustained damages as a direct and proximate result of the pipe line installations of the appellant and that appellee was damaged in the sum of $2,250.00. Those two issues were the only issues submitted to the jury concerning appellee’s cause of action. The trial court rendered judgment against the appellant for the sum of $2,250.00, together with costs and -with interest from date of judgment. From that judgment appellant perfected this appeal.

Appellant obtained a right-of-way easement from the owners of the land here involved with the right of ingress and egress to lay, construct, inspect, maintain, alter, repair, replace, operate and remove pipe lines for the transportation of oil, gas, or any other products or other liquid or mineral substances in, over, through and across the land there described and being the land here involved. The consideration paid by appellant to the land owners for such right-of-way agreements was $4,186.80. The right-of-way agreements provided:

“The consideration paid herefore covers, and Phillips is hereby released from liability for, all damages resulting from or incident to the original laying of said pipe line, or pipe lines; provided that claims for damages resulting from negligence of Phillips or of its contractor are not hereby released. This instrument constitutes the entire agreement between the parties hereto, and no covenant or agreement not herein expressed shall be valid unless in writing and signed by the grantor and a duly authorized agent of Phillips. The consideration above recited is in full satisfaction of every right hereby granted.”

Appellant' secured from appellee, tenant upon the land here involved, “tenant’s consent” granting to appellant the rights and privileges of a grant of right-of-way executed in favor of the appellant by the owners of the land here involved with the understanding that any damages to crops occasioned by construction activities under the grant of right-of-way were to be paid by appellant to appellee on the share or basis to which appellee might be entitled. Appellant tendered appellee $88.00 for his crop damage and appellee refused to .cash the check but kept it and introduced it in evidence herein. The only testimony concerning appellee’s crop damage was when appellee stated, “Oh, a hundred dollars.”

The measure of damages for wrongful destruction of a growing crop appears to be well settled of law in this state. The measure of damages to growing crops when wrongfully destroyed is the value of the crop just as it stood on the ground at the time and place of its destruction. Such value to be determined by the probable yield of the crop and its reasonable market value when matured less the cost of cultivating, harvesting and marketing. Phillips Petroleum Company v. Arrington, Tex.Civ.App., 318 S.W.2d 694 and the many cases there cited.

Since we' are of the opinion under appellant’s first assignment of error this cáse must be reversed and rendered we will not discuss the remaining points of error. It is contended by appellant’s first assignment of error that the court erred in overruling its motion for directed verdict, motion for judgment non obstante veredicto and motion for new trial because the plaintiff wholly failed to prove a contract by defendant to compensate plaintiff for damages sustained as a direct and proximate result of the pipe line installation of the defendant and in said motions contended the appellee had failed to prove a proper basis upon which a damage verdict could be predicated.

The land here involved is Section 166 and the south 184 acres of Section 99, Block 10, H. & T. B. Survey, Lipscomb County, Texas. At the time here in question, appellee was the tenant on said land. Under appellee’s consent agreement with appellant it was stipulated that appellee gave his consent for the appellant to exercise the rights granted under the grant of right-of-way executed in favor of appellant by the owner or owners of the land here involved with the understanding that any damages to crops occasioned by the construction activities under the said grant of right-of-way should be paid to appellee on the share basis to which he might be entitled. Appellee acknowledged this consent agreement was the only agreement he had with appellant.

It is undisputed that the line construction was done and completed in the usual and customary way and in a proper manner. We think the undisputed record shows that all appellee would be entitled to would be his share of the damaged crops. There is no competent evidence herein to determine the extent of appellee’s damages to the crops. The only evidence introduced as to appellee’s crop damage was when the appellee was asked, “What amount of damage, if any, do you feel that you sustained by reason of loss of growing crops? That is the actual land on which a crop was growing which the pipe line traversed which you were not able to cut the crop?” The answer was, “Oh, a hundred dollars.”

The right-of-way agreement provided the $4,186.80 covered all damages .resulting from or incident to the laying of the pipe line unless caused by negligence. No negligence was shown herein. The land owners who granted this right-of-way to appellant are not parties to this suit. If the owners were claiming any damages it would be necessary for them to show the damage was caused by the negligence of appellant. Appellee by his consent agreement with appellant confirmed all of the rights given appellant under the right-of-way agreement except as to his part of any crop damage. It is stated in Pridgen v. Shell Pipe Line Corporation, Tex.Civ.App., 279 S.W.2d 111 (writ dism.) as follows:

“The law is thoroughly settled that if Shell exercised the rights conferred upon it by the right of way grant, copied above, with due care and without negligence, then no damages can be recovered for injuries resulting therefrom. Lone Star Gas Co. v. Hutton, Tex.Com.App., 58 S.W.2d 19, recently approved in Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399.”

Every easement carries with it the right to do such things as reasonably necessary for the full enjoyment of the easement and extent to which incidental rights may be exercised depends on the object and purpose of the grant and whether such rights are limited by its terms. Knox v. Pioneer Natural Gas Company, Tex.Civ.App., 321 S.W.2d 596 (N.R.E.); Gulf View Courts v. Galveston County, Tex.Civ.App., 150 S.W.2d 872 (writ ref.); Bland Lake Fishing and Hunting Club v. Fisher, Tex.Civ.App., 311 S.W.2d 710; Lone Star Gas Co. v. Hutton, Tex.Com.App., 58 S.W.2d 19.

Appellee, tenant upon the land in question, affirmed all of the rights granted to appellant under the right-of-way agreement except what damages appellant would be entitled to by virtue of the destruction of appellee’s growing crops. An additional reason for sustaining appellant’s motion for directed verdict is that since there is no competent evidence as to appellee’s damages the jury could have found no more than nominal damages. Pridgen v. Shell Pipe Line Corporation, supra.

Judgment of the trial court is reversed and rendered.