author: COLLINGS, Justice.

text:
    William Paul DARROW, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 3907.
    Court of Civil Appeals of Texas. Eastland.
    June 11, 1965.

      George T. Thomas, Big Spring, for appellant.
    Wayne Burns, County Atty., Big Spring, for appellee.
   COLLINGS, Justice.

William Paul Darrow brought this suit in the County Court of Howard County against the Texas Department of Public Safety, appealing from an order of the Department suspending his Texas Operator’s License, and in refusing to renew such license. Judgment was rendered sustaining and confirming the action of the department. William Darrow has appealed.

Appellee has filed no reply brief and, in accordance with Rule 419, Vernon’s Ann.Tex. Rules of Civil Procedure, we accept as correct the statement made in appellant’s brief concerning the facts and record which is hereinafter set out, in substance, in so far as is material and necessary to the disposition of this appeal. Knight v. Texas Department of Public Safety, Tex.Civ.App., 361 S.W.2d 620, and cases cited therein. Some of the facts were also established by evidence introduced and by appellee’s request for admissions under Rule 169, which were taken as admitted against the department by an order of the trial court.

The record shows that in April, 1963, the department began proceedings under Section 22 of Article 6687b, Vernon’s Ann. Tex.Civ.St., by filing a petition with the Judge of the Corporation Court of the City of San Antonio in Bexar County seeking a finding that appellant was “an habitual reckless or negligent driver of a motor vehicle”, upon which the department would then be authorized to suspend appellant’s operator’s license for a period of not more than one year. The record shows that at all times pertinent appellant’s residence was in Big Spring, Howard County, Texas, and that such address was shown on his operator’s license at all times since it was issued. It is provided in Section 22(a) of the article that “For the purpose of hearing such cases jurisdiction is vested in the mayor of the city, or judge of the police court, or a justice of the peace in the county or subdivision thereof where the operator or licensee resides.” No valid reason is shown for the filing of such proceeding in Bexar County rather than in Big Spring, Howard County, the place of appellant’s residence and the place of residence shown on his driver’s license. No notice of the hearing before the Corporation Court of the City of San Antonio was sent to appellant at his address in Big Spring. Notice of the hearing was sent by regular mail to an address in San Antonio which was neither the place of appellant’s residence nor the place of residence listed on appellant’s driver’s license. Appellant did not receive such notice and it was returned to the department undelivered. Appellee had no notice either actual or constructive of the hearing before the Judge of the Corporation Court of San Antonio. The hearing was had, however, and based upon an affirmative finding by such Corporation Court the department on May 1, 1963, made its order suspending appellant’s operator’s license for a period of six months, effective May 1, 1963. The department made no attempt to give appellant notice of the affirmative finding of the Corporation Court and appellant had no notice or knowledge thereof at that time. After the order had been made suspending appellant’s operator’s license, the department again failed to send any notice thereof to appellant at his address in Big Spring, as required by the statute, but sent such notice by regular mail to appellant at the San Antonio address from which the prior notice of hearing before the Corporation Court had been returned undelivered. The notice of the order of suspension of appellant’s driver’s license was also returned undelivered to the department. In September of 1963, the department sent to appellant at his Big Spring address as shown on his operator’s license the usual postcard renewal application. Appellant received such renewal postcard and returned the application for renewal with his $3.00 fee and it was received by the department prior to the expiration date of his current license. It was then that the department discovered in its files a copy of the order of suspension, returned to the department undelivered from the San Antonio address, and wrote a letter to appellant at his address in Big Spring, dated October 10, 1963, denying renewal of his license on the basis of such suspension and enclosing the copy of the order of suspension which had previously been returned when sent to the San Antonio address. This letter and the enclosed copy of the order of suspension was the. first knowledge appellant had of any of the proceedings before the Corporation Court of San Antonio or of the department’s order of suspension. On October 17, appellant filed in the County Court of Howard County his appeal from both the suspension and the refusal of renewal based on such suspension.

The department filed a general denial and alleged no factual matters except to assert that the suspension of appellee’s operator’s license was valid and authorized by the affirmative finding of the Judge of the Corporation Court of San Antonio, and that appellee was in fact “an habitual reckless or negligent driver of a motor vehicle.”

At the de novo trial the department took the position that even if the proceedings prior to the filing of appellee’s appeal to the County Court of Howard County were wholly void, because same were not instituted in the County of Darrow’s residence and because Darrow was not given notice as required by Article 6687b, Section 22(a), still appellee by his appeal invoked the jurisdiction of the County Court of Howard County sufficient to endow that court with the power to make an affirmative finding upon which the defendant’s prior suspension could be affirmed, and if the County Court found that appellee was “an habitual reckless or negligent driver” that Court could then make such an affirmative finding which would in retrospect support and affirm the suspension theretofore ordered by the department. See Texas Department of Public Safety v. King, 366 S.W.2d 215, (Sup.Ct.).

Article 6687b, Sec. 22, Subdivision (c) provides in part as follows:

“Any licensee who is not willing * * * to abide by the final ruling or decision of the Department suspending said license, * * * may * * *, bring suit in the county court, * * *, of his residence to vacate and set aside said final ruling and decision suspending said license, * * *, and said court shall, * * *, determine the issues in such cause, instead of the Department, upon a trial de novo, and shall be tried the same as if there had been no prior hearing on the matter of suspension of said license and in the same manner as a trial in the county-court on appeal from the justice court, and the rights of the parties thereto shall be determined by the court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.”

Texas Department of Public Safety v. Richardson, 384 S.W.2d page 128 was a case in which a licensee appealed from a summary judgment of a Dallas County Court at Law upholding an order of the Texas Department of Public Safety suspending his driver’s license and in which the licensee complained, among other things, of irregular procedure involving insufficient notice to the licensee of the hearing before the Corporation Court. In that case our Supreme Court held that the de novo hearing in the County Court at Law rendered harmless any defect there might have been in the notice concerning the administrative hearing before the Dallas Corporation Court. We recognize that the defect here involved is that the proceeding was not brought by the Department in the Corporation Court of the county of appellant’s residence as required by the statute rather than merely that proper notice was not given in the Corporation Court. However, Section 22, Subdivision (c), supra, specifically provides that a licensee whose license has been suspended may within a designated time bring suit in the County Court of his residence to vacate the decision suspending his license. That is what appellant did. We are of the opinion that the irregular administrative procedure in the instant case is likewise immaterial to the disposition of this appeal in view of the de novo hearing in the County Court in compliance with the statute.

The Department’s allegation and the County Court’s findings were that appellant was “an habitual reckless or negligent driver.” It is to be noted that the allegations and findings were not that appellant was an habitual violator of the traffic law as contemplated by Subdivision (b) — 4 of Section 22.

The question on this appeal then is whether the evidence supports the court’s finding that Darrow was an habitual reckless or negligent driver as contemplated by Section 22, Subdivision (b) — 3 of Article 6687b. Appellant urges points contending, in effect, that there was no evidence or, in the alternative, insufficient evidence to show that he was “an habitual reckless or negligent driver.”

No witness testified to any act of appellant showing that he is “an habitual reckless or negligent driver.” The principal evidence presented by appellee to show that appellant is “an habitual reckless or negligent driver of a motor vehicle” is composed of certain exhibits, being instruments which appellee offered to prove convictions of appellant of various traffic offenses. Appellee contended in the trial court that such instruments are “notices of conviction” in accordance with the statute and as such are admissible, and that they show that appellant is “an habitual reckless or negligent driver.” The exhibits in question were not admissible as “notices of conviction” because they were not certified by the Judge of the Corporation Court as required by Section 152 of Article 6701d, V.A.T.C.S.

Appellee’s exhibits 5 through 12 were copies of traffic tickets issued by policemen of the City of Big Spring on forms setting out a mass of information constituting actual complaints against appellant. In addition to the traffic tickets shown on the front of such instruments there were various blanks on the back, some of which were filled out by check marks, figures and letters with a signature line at the bottom upon which appears the signature of one S. R. Farmer certifying “that the information on this ticket is a true abstract of the record of this court or bureau in this case.” Below the signature line is inscribed “Signature of Judge or Clerk.” Mr. S. R. Farmer testified that at all times pertinent he was City warrant clerk or clerk of the Corporation Court of the City of Big Spring and that Doris Smith, whose signature was on one of the tickets on the line designated as “Signature of Judge or Clerk”, was a clerical employee in the City Traffic Department. Mr. Farmer stated that neither he nor Doris Smith was ever Judge of the Corporation Court of the City of Big Spring.

If the exhibits in question are admissible it is because they constitute records or reports, made by an officer of this State or of any governmental subdivision, or by his deputy or employee as contemplated by Section 1 of Article 3731a, V.A.T.C.S. See Texas Department of Public Safety v. Miller (Sup.Ct.), 386 S.W.2d 760. The testimony of Mr. Farmer probably establishes that he was “a deputy or employee” as contemplated by the statute. Even so, these reports or records, in our opinion, do not show that appellant is “an habitual reckless or negligent driver.”

In the first place the general rule is that a judgment in a prior case determining issues of fact will not be received as evidence of those facts in a later suit. Pittman v. Stephens, Tex.Civ.App., 153 S.W.2d 314 (Ref.W.M.). It is true that a plea of guilty to the commission of an act which would indicate negligence is admissible as an admission against interest. However, these exhibits, reports or records do not show either a plea of guilty or a conviction. The portions of the exhibits designated “court action and other orders” show blank places to be filled in after the words “Trial by court (Jury) Plea * * * ”, and after the words “Finding by the court * * * ”. Such blank places were filled in by inserting the letter “G” although on some of the exhibits the inserted letter could be an “S”. A mere notation on the docket of a justice or Corporation Court may be sufficient to show a judgment. Pullin v. Parrish, Tex.Civ.App., 306 S.W.2d 241; McDermott v. Steck Co., Tex.Civ.App., 138 S.W.2d 1106. However, the record of a plea of guilty or of a conviction should be shown with more certainty than the mere insertion of the letter “G” in a blank. We hold that the appearance of the letter “G” in the designated blank places does not show that appellant entered pleas of guilty to the offenses charged or that he was convicted and found guilty of the offenses. This evidence does not support the holding that appellant is “an habitual reckless or negligent driver.”

The Department of Public Safety also introduced what purports to be appellant’s operating record kept by the department, contending that such operating record shows appellant to be “an habitual reckless or negligent driver.” Such operating record of appellant does not purport to be an abstract of court records covering cases in which appellant pled guilty or was convicted. They, therefore, “cannot be presumed to reflect the terms of the judgments in such cases.” Department of Public Safety v. Gentry, 386 S.W.2d 758 (Sup.Ct.).

We have considered the evidence in the case as a whole and find that it is insufficient to show that appellant is “an habitual reckless or negligent driver.” In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant further contends that the record contains no evidence that he was an habitual or negligent driver, and that the judgment should be reversed and rendered in his favor. Even if appellant’s contention concerning the lack of any evidence to support the judgment should be held correct, we are still of the opinion that the ends of justice would be best served by remanding the case for another trial. It is not clear that the case has been fully developed. Notices or abstracts of judgment may be amended, added to or corrected or properly authenticated by either party to show the facts. Texas Department of Public Safety v. Miller (Sup.Ct.), 386 S.W.2d 760; Department of Public Safety v. Guleke, Tex.Civ.App., 366 S.W.2d 662. It is obvious that the material facts in the instant case are not clearly shown. It may be that upon another trial such abstracts or records of judgment may be corrected, amended or added to so they will clearly show that appellant either did or did not plead guilty to the offenses charged.

For the reasons stated the judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Selma KELLEY et vir, Appellants, v. Mrs. Helen C. ALEXANDER, d/b/a Beekman’s Roto-Rooter Sewer Service, Appellee.
    No. 14387.
    Court of Civil Appeals of Texas. San Antonio.
    June 9, 1965.
    Rehearing Denied July 6, 1965.

      Reid & Taylor, San Antonio, for appellants.
    Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for ap-pellee.
   BARROW, Justice.

This appeal relates to the volenti non fit injuria concept of assumed risk. Plaintiffs, Selma Kelley and husband, John Kelley, appeal from a summary judgment granted defendant, Mrs. Helen C. Alexander, d/b/a Beekman’s Roto-Rooter Sewer Service, in a suit to recover damages sustained by plaintiff Mrs. Kelley when she fell in a hole in her yard which had been dug by defendant’s employees. The motion for summary judgment was based on the pleadings and deposition of Mrs. Kelley.

On March 26, 1962, defendant was employed by plaintiffs to remove roots from a sewer line on plaintiffs’ property. In performing this work, defendant’s employees dug a hole 3' x4' in diameter and about 4' deep in plaintiffs’ yard. Mrs. Kelley saw this hole and was afraid that a small child would fall into it, as two neighborhood children, about three or four years of age, played in her yard “continuously.” She furnished a board to an unidentified man working on her property and he covered the hole before leaving the premises the first day. She admitted that she had painters and carpenters working on her property at this time and did not know if this man worked for defendant or one of the other craftsmen. She didn’t recall telling one of defendant’s employees to cover the hole. About 5:00 p. m. on the following day, after the workmen had left, she looked out the window and saw this gaping hole. She testified that she was afraid the children would fall in. There was a large limb from a tree she had trimmed close to the hole, and she decided to drag the limb over the hole to discourage the children from approaching it. In doing so she slipped and fell into the hole. No one was present at the time. Mrs. Kelley admitted that this occurred in broad daylight and that the dangerous condition of the hole was open and obvious to her.

On November 19, 1964, the trial court sustained defendant’s motion for summary judgment and entered a take-nothing judgment. On November 30 plaintiffs filed a motion to vacate the judgment and asserted that the “rescue doctrine” was raised by Mrs. Kelley’s testimony. This motion was overruled and plaintiffs perfected this appeal.

Appellants concede that the danger was open and obvious to Mrs. Kelley, but urge that she did not assume the risk thereof under the “rescue doctrine.” This exception was recognized by the Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (1963), wherein it was said:

“A basic difference between contributory negligence on the one hand, and ‘no duty’ and volenti on the other, is the question of justification. Whether the plaintiff’s conduct was justified may be an evidentiary consideration in deciding that a person of ordinary prudence should, or should not have so acted, but it is not a separate ultimate inquiry or issue. The question of plaintiff’s justification is not ordinarily involved in the ‘no duty’ concept. A person may voluntarily expose himself to a known risk and not be con-tributorily negligent, depending upon why he exposed himself; i. e., his conduct may have been that of an ordinary prudent person under the circumstances. For example, a mother going into a burning building to save her child, or a person crossing a defective bridge when it is the only way of travel. * * * On the other hand, if the occupier owes ‘no duty’ to the invitee because the invitee knows and appreciates the danger, or if the plaintiff deliberately and voluntarily encounters a known risk under the volenti doctrine, the plaintiff cannot recover. There may be some exceptions, such as where the plaintiff is motivated by humanitarianism or rescue impulses.”

Under the “rescue doctrine,” one who attempts to rescue another placed in imminent peril by the negligence of the defendant is not to be found guilty of contributory negligence as a matter of law, nor does he assume the risk incident thereto unless he acts in a rash, imprudent or negligent manner. Sinclair Ref. Co. v. Winder, Tex.Civ.App., 340 S.W.2d 503, wr. ref.; Keystone-Fleming Transport, Inc. v. City of Tahoka, Tex.Civ.App., 315 S.W.2d 656, wr. ref., n. r. e.; Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, wr. ref., n. r. e. The basis of this rule is that the defendant negligently created a situation that provoked the rescue effort and the rescuer’s resulting injury was something that could reasonably have been foreseen by the negligent defendant and was a natural and probable result of such negligence. Longacre v. Reddick, Tex.Civ.App., 215 S.W.2d 404, mandamus overruled; Shultz v. Dallas Power & Light Co., Tex.Civ.App., 147 S.W.2d 914, wr. dism. judgm. correct; 40 Tex.Jur.2d, Negligence, § 117; Restatement of Torts, § 893.

It is our opinion that the “rescue doctrine” has no application in the case at bar. There were no pleadings by appellants to raise this issue of excuse. See Rash v. Ross, Tex.Civ.App., 371 S.W.2d 109, wr. ref., n. r. e. The first time it was raised or injected in the case was after the motion for summary judgment had been heard and the take-nothing judgment entered. This was too late under Rule 166-A, Sec. (c), Texas Rules of Civil Procedure.

Furthermore, we do not believe that the “rescue doctrine” is raised under the facts in this case. There is no showing that anyone was in imminent peril. No one was present when Mrs. Kelley went out to place the limb over the hole. There is no basis for the “rescue doctrine” where no one is in imminent danger and the circumstances afford no reasonable basis for believing otherwise. It requires more than a mere suspicion that an accident might happen to justify one to incur an obvious danger on the theory that human life or limb is in imminent peril. 65 C.J.S. Negligence § 124; 38 Am.Jr., Negligence, § 228. This requirement is best illustrated by examining the facts in cases where the doctrine has been applied.

In Sinclair Refining Co. v. Winder, supra, plaintiff was injured when he stepped on a pile of slag on a railroad track while attempting to halt unattended cars rolling downhill toward workers who were unaware of the danger. In the Reddick v. Longacre case, supra, plaintiff was injured when an explosion occurred while he was attempting to rescue a truck driver from a burning truck. In Swift & Co. v. Baldwin, Tex.Civ.App., 299 S.W.2d 157, no wr. hist., the jury found that school children were passing along the sidewalk in the immediate vicinity of a loose sign and were in imminent peril immediately prior to the time plaintiff climbed a ladder to try to secure the sign before it fell on one of the children.

The evidence in this case does not show that Mrs. Kelley voluntarily exposed herself to danger to rescue another person from imminent peril, but rather that she was discharging her duty as owner of the premises in making the premises safe for the small children who she knew frequented same. In doing so she knowingly and voluntarily assumed the risk of falling in the hole dug by appellee’s employees. In this situation the volenti doctrine bars her recovery.

The judgment is affirmed.

CADENA, Justice.

I am unable to agree with my brethren in this case and feel compelled to set forth the reasons for my disagreement.

Defendant’s answer in this case consisted of a general denial, a general plea of contributory negligence, an allegation that the excavation was open and obvious, and a plea that plaintiff had voluntarily assumed the risk of falling into the open hole. Defendant’s motion for summary judgment was based on the pleadings and on plaintiff’s deposition.

The summary judgment in favor of defendant cannot be sustained on the theory that plaintiff’s deposition established that she was contributorily negligent as a matter of law. The deposition does not establish any failure on the part of plaintiff to exercise due care, and defendant filed no affidavits stating any acts or omissions on plaintiff’s part which would amount to negligence. Unless we are prepared to hold that the occurrence of the accident, per se, conclusively established that plaintiff was contributorily negligent, the deposition does not compel the inference that plaintiff failed to exercise due care.

The only possible basis for the rendition of summary judgment in this case is the doctrine of voluntary assumption of risk. Since it is undisputed that plaintiff was aware of the existence of the uncovered excavation and that she realized the danger inherent in the situation, it is only necessary to decide whether the doctrine of voluntary assumption of risk is applicable to this case.

In Halepeska v. Callihan Industries, Inc., 371 S.W.2d 368 (Tex.1963), a majority of our Supreme Court, in an exhaustive opinion by Justice Greenhill, attempted to establish guide lines for the application of the doctrine in Texas. Justice Greenhill divided assumption of risk into two distinct, but not always distinguishable, concepts. The “no duty” concept or branch of the doctrine is, according to the Halepeska opinion, applicable only where the injury occurs on the land of the defendant and the injured party is on defendant’s land as an “invitee.” The volenti (volenti non fit in-juria) aspect of the doctrine, while it may be applicable in the landowner-invitee situation, apparently is the concept which will be applied in all other cases.

In this case, the condition which caused the injury was on the land of plaintiff. Plaintiff was not on the land as the invitee of defendant. It is apparent, then, that we are not concerned with the “no duty” aspect of voluntary assumption of risk. Defendant must rely on the volenti aspect of our two-headed rule.

Under the volenti rule, as expounded in Halepeska, the burden was on defendant to plead and prove that plaintiff had knowledge of the condition, that she knew the condition to be dangerous and fully appreciated the nature and extent of the danger, and that she voluntarily exposed herself to such danger. Greenhill, Assumption of Risk, 16 Baylor L.Rev. 111, 112, 116 (1964).

Volenti is based on consent. As Justice Greenhill said in Halepeska, “Under the volenti defense, voluntary exposure to the known risk has been held to be a necessary inquiry.” 371 S.W.2d at p. 380. In Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449, 452 (1959), Justice Walker said, “This (volenti) doctrine is based on knowledge and appreciation of the danger and voluntary assent thereto.” (Emphasis added) Assumption of risk is, as one writer has said, “rooted in the underlying philosophy of choice.” Mansfield, Informed Choice in the Law of Torts, 22 La.L.Rev. 17, 47 (1961).

I do not believe that the record before us establishes that plaintiff voluntarily assented to exposure to the danger. Since, under Halepeska, defendant had the burden of proving every element of the volenti defense, and since the record is insufficient to establish “voluntary assent,” it follows that the summary judgment was improperly granted.

There can be no true volition unless there is a choice between at least two alternatives, neither of which involves the abandonment of a legal right or the relinquishment of a legal duty. The general principle is that one who has a legal right, or is under a social or legal duty, to act as he has under conditions created by defendant’s wrong does not act voluntarily. His action is caused by the coercion of the environment which defendant has created. Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14, 21 (1906).

There are many situations where the doctrine of assumption of risk has been held to be inapplicable. (1) Where a traveler uses a highway which has not been closed for repairs. (2) Where a tenant uses a hall, stairway or other common portion of the premises which has remained under the control of the landlord who has the duty of safe maintenance. (3) Where a patron of a public utility uses a part of its premises or its equipment which is appropriate to be used in order to secure the services which the utility is bound to perform for the public. (4) Where a landowner’s access to his premises has been impeded by defendant’s act, and he incurs the risk to gain access. (5) Where defendant’s wrong injures a plaintiff who is at a place where he has a right to be irrespective of defendant’s consent. (6) Where plaintiff moves to a nuisance or uses his land in such a way as to increase the hazard caused to it by defendant’s wrongful use of his land. (7) Where plaintiff seeks to rescue another person, or his or another’s property, which is endangered by defendant’s negligence. 2 Harper and James, The Law of Torts (1956), § 21.1, pp. 1165-1167.

It is seen that in all of the situations where the doctrine is held to be inapplicable the injured plaintiff, at the time of the injury, had a legal right to do what he did, or to be where he was, irrespective of the defendant’s consent; or else the defendant’s conduct had threatened plaintiff’s person or property, or the person or property of some person to whom plaintiff owed either a legal or social duty. That is, plaintiff is not held to have assumed the risk if, at the time of the injury, he was exercising a right which did not depend on defendant’s consent, or if he was performing a duty.

In this case, the “evidence” establishes that plaintiff was on her own land, where she had a right to be. Her right to be there was not dependent on a consent which defendant was free to give or withhold. A landowner cannot be required to surrender a valuable legal right, such as the right to use his land as he sees fit, merely because a defendant’s conduct threatens physical harm if plaintiff exercises his right. Prosser, The Law of Torts (2d ed., 1955), § 55, p. 212. A legal right which can be exercised only on condition that the holder of the right agree to relieve a wrongdoer from all liability for misconduct is a right of little value. The doctrine of assumption of risk was born of the law’s solicitude for the rights of landowners. To apply the doctrine here would be to use the doctrine for the purpose of allowing a landowner’s rights to be burdened by the threat of non-compensable injury if it is exercised. Neither precedent, reason nor logic compel such a result.

My brethren conclude that the so-called “rescue” doctrine is inapplicable here because, at the time plaintiff was injured, no person other than plaintiff was near the danger area. That is, it is insisted that the record reflects that, at the time of the injury, no one was in “imminent” peril. This contention is supported by referring to Swift & Co. v. Baldwin, Tex.Civ.App., 299 S.W.2d 157, no wr. hist. The findings of the jury in that case seem to negative the possibility that, at. the time the plaintiff attempted to eliminate the dangerous condition (a loose sign overhanging a public sidewalk), any person was in imminent peril. There was no finding that any person was in danger at the time the rescuer acted. The jury found that some children were in the danger area immediately “prior” to the time that plaintiff attempted to eliminate the hazard. So, plaintiff’s conduct there was prompted, not by the fact that a child was then and there in the danger zone, but by his knowledge that children had been and would again be present in the area of peril and would be placed in a position of imminent danger.

In this case the record discloses that children, three or four years of age, “continuously” played in plaintiff’s yard in the area where defendant had left the excavation unguarded. Plaintiff, therefore, knew that children had been in the area, and that they probably would be there again. She realized the danger inherent in the situation end acted to prevent injury to the infants. The facts of this case, then, bring it within the rule applied in Swift & Co.

But even if we read into the Swift and Co. decision the fact that, at the time the “rescuer” was injured, children were in the hazardous area, and even if it be conceded that there cannot be a “rescue” situation unless someone is, at the very moment of the rescue attempt, in imminent peril, this does not mean that plaintiff in this case voluntarily assumed the risk. In the typical “rescue” situation, the plaintiff is a volunteer who is under no legal duty to protect the person in danger. He acts out of a sense of moral responsibility or in performance of what has been called a social duty.

In this case, plaintiff knew of the prior presence of the children who played in her yard “continuously.” She not only had reason to foresee, but she knew, that they would be there again. Both parties agree that the uncovered and unguarded excavation was dangerous. Under these circumstances, it seems clear that plaintiff was under a legal, as distinguished from a mere social, duty to take reasonable precautions to prevent injury to the children. Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587 (1953).

Where, as here, plaintiff acts in performance of a duty imposed by law, it would be absurd to insist on the presence of a person in “imminent” peril. Such insistence would mean that plaintiff, although she realized the danger to the infants and was under a legal duty to protect them, would have to delay performance of her duty, standing by patiently, until a child approached the danger zone before she could act to perform her legal duty. Only when the peril became “imminent,” and, apparently, not one moment before, would she be free, without relieving defendant of liability, to rush out frantically, hoping that she would arrive in time. If she delayed too long, she would be liable for the injury to the children. If she started her “rescue” attempt too soon she would, under the majority opinion herein, have agreed to look out for herself and to relieve defendant of all liability.

If plaintiff had taken no precautionary measures and a child had been injured by tumbling into the unguarded excavation, would the judicial ear be responsive to her explanation that she knew of the danger to the children but decided not to act because of the risk involved to herself ? The past decisions of this State make it clear that her failure to act would result in liability. Today we slam the courthouse door in her face because she acted.

From what has been said it is apparent that plaintiff was not in a position to choose freely. Absence of restraint is essential to freedom of choice. Defendant, by failing to take the simple precaution of covering the pit, placed plaintiff in a position where she had to choose between the risk of injury to herself, on the one hand, and the abandonment of a right as well as the breach of a legal duty on the other. To hold that by choosing to exercise her right she “consented” to relieve defendant of liability is to minimize the value of her right to use her land. To hold that by electing to perform a duty imposed on her by law she “voluntarily” assumed the risk of injury to herself is to punish those who perform their legal obligations.

As Justice Greenhill said in Halepeska, “By and large, the ‘no duty’ and volenti doctrines are relatively harsh doctrines which go beyond ascertaining whether the plaintiff failed to exercise ordinary care under the circumstances and hence was contributorily negligent. * * * We therefore here feel required to recognize justifiable limits on the doctrines of ‘no duty’ and volenti.” 371 S.W.2d at p. 380. Again, Halepeska recognizes that there are “exceptions” to which the doctrine is not applicable, “such as where the plaintiff is motivated by humanitarianism or rescue impulses.” 371 S.W.2d at p. 379.

Our Supreme Court has thus explicitly recognized that assumption of risk is a harsh doctrine which requires the recognition of limitations on its application. My brethren would extend its application to this case, saying that considerations of plaintiff’s justification or motivation are irrelevant in determining its application. Certainly the Halepeska opinion, which recognizes exceptions where plaintiff is “motivated” by humanitarianism or rescue impulses, does not support the conclusion that justification and motivation are irrelevant. Nor did Justice Greenhill, in his article in 16 Baylor L.Rev. Ill, completely condemn motivation and justification to the limbo of things which are irrelevant in the application of the doctrine of volenti. He merely said that such considerations were irrelevant in the ordinary case. The “ordinary case” involving the doctrine of assumption of risk is a landowner-invitee or a master-servant situation. In such cases, the plaintiff’s right to be present at the scene of the injury is dependent on a consent which the defendant is free to grant or withhold at his pleasure. We have no such case here.

To apply the “harsh” volenti doctrine in this case is to discourage landowners from exercising ordinary care on their land to protect others from injury. A rule which brings about such a result serves no socially desirable purpose. Imposing liability on the defendant in this case will discourage no person from performing his legal duties. Since the decision we make today will affect the conduct of others tomorrow, we should attempt to shape our laws along lines which will encourage the performance of legal duties. To do otherwise is to drain the law of its vital juices.

I would reverse the judgment of the trial court and remand the cause for a trial on its merits. Under the circumstances of this case, the rights and interests of the parties can be adequately protected by the application of the ordinary rules of negligence and contributory negligence.

      . Plaintiffs pleaded that while performing plumbing work on plaintiffs’ property defendant dug a hole near plaintiffs’ house and was negligent (1) in failing to properly erect barricades; (2) in failing to cover the excavation; (3) in failing to place flares around the excavation, and (4) in failing to give adequate warning of the dangerous condition.
      Defendant asserted a general plea of contributory negligence, and affirmatively alleged that the excavation was open and obvious and well known to Mrs. Kelley, and that she voluntarily assumed the risk of falling into the hole.


author: RENFRO, Justice.

text:
    Robert W. ROGERS et ux., Appellants, v. Robert E. B. FIELDER, Appellee.
    No. 16654.
    Court of Civil Appeals of Texas. Fort Worth.
    June 25, 1965.
    Rehearing Denied July 23, 1965.
    Andress, Woodgate, Richards & Condos, and Wm. Andress, Jr., Dallas, for appellants.
    Simon, Crowley, Wright, Ratliff & Miller, and M. Earl Rutledge, Fort Worth, for ap-pellee.
   RENFRO, Justice.

This is an appeal by Rogers from a summary judgment denying his plea for equitable relief from a foreclosure of a lien upon property.

On the first day of June, 1951, Fielder conveyed by warranty deed certain described real estate to Rogers. The deed recited a consideration of $19,000, payable $3,-000 cash and a $16,000 vendor’s lien note payable in monthly installments of 125.

Rogers executed a deed of trust of even date.

By 1960 Rogers was delinquent in payment of taxes and was involved in a controversy with Fielder as to the exact amount due to Fielder on the vendor’s lien note.

Rogers’ attorney and Fielder’s attorney tried diligently, but vainly, to get the parties to agree upon the total amount due. Neither would accept the calculation of the other.

After September, 1960, Rogers made no payments on the note.

At the request of Rogers, Conroy Mortgage Corporation paid $2,350.62 delinquent taxes on the property and Rogers, on March 28, 1961, executed a deed of trust to Con-roy to secure said amount.

Rogers did not pay Conroy. Conroy foreclosed its lien on the property at trustee’s sale on November 7, 1961.

On December 5, 1961, Fielder foreclosed his deed of trust lien of June, 1951, and bought the property for $12,310.06.

Fielder, on August 3, 1962, brought suit for title and possession against Rogers and Conroy Mortgage Corporation.

Rogers answered that he was occupying the premises as the tenant of Conroy, having lost his equity by reason of Conroy’s foreclosure. By way of cross-action Rogers asked for an accounting; and that any amounts owing by him to Fielder be credited upon any amount of damages he might recover against Fielder growing out of the loss of the property.

Rogers’ cross-action was severed from the title and possession suit.

Judgment was entered for Fielder for title and possession against Rogers and Con-roy.

Rogers did not appeal.

Conroy appealed. The judgment of the trial court was affirmed. Conroy Mortgage Corporation v. Fielder, 375 S.W.2d 344, (Fort Worth Civ.App., 1964, ref. n. r. e.).

On January 12, 1965, summary judgment was entered against Rogers on his cross-action, hence this appeal.

In substance, Rogers’ points of error contend he was entitled to an accounting of the application of his payments to Fielder and the sum realized from the sale of the property and that the trial court should have given him the right to redeem the property.

Rogers first raised the question of redemption in his second amended cross-action filed on June 30, 1964, a time long after the sale under the 1951 deed of trust had been made and several months after this court had affirmed the title and possession judgment.

The parties may, as Rogers and Fielder did in the 1951 deed of trust, validly provide in a deed of trust that all prerequisites to the sale are presumed to have been performed and that recitations and statements of facts in the conveyance to the purchaser shall be full or prima facie evidence of the truth of the matters stated, and this presumption of regularity will obtain until it is stricken down by competent testimony. 39 Tex.Jur.2d 210, § 153, and authorities therein cited. See also Tarrant Savings and Loan Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.Sup., 1965).

Fielder introduced all evidence necessary to fully establish the regularity of the foreclosure proceedings and the validity of his trustee’s deed.

Rogers did not in the trial court, and does not in this court, rebut such evidence. He never at any time sought to prevent sale under the deed of trust, and after the sale did not at any time attack the validity of such sale and the deed obtained by Fielder; neither did he appeal from the judgment based on the foreclosure of the deed of trust lien which awarded title and possession to Fielder.

A sale regularly exercised under a power is equivalent to a strict foreclosure by a court of equity properly pursued. Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147 (1912),

It is well settled that the foreclosure of a lien by sale, by the trustee in a deed of trust in accordance with the terms of the instrument and in accordance with the statutes regulating such sales, has the effect to cut off any equity or redemption theretofore existing in the grantor. Slay v. Gose, 233 S.W. 348 (Fort Worth Civ.App., 1921, no writ hist.); Miller v. Matthews, 176 S.W.2d 1011, p. 1014, par. 9-11 (Eastland Civ.App., 1943, no writ hist.).

Rogers contends he was entitled to any surplus realized from the trustee’s sale. It was determined in the title and possession suit that Fielder purchased the property for an amount less than the debt owed him, Conroy Mortgage Corporation v. Fielder, supra, p. 346, hence here was no surplus. As heretofore stated, Rogers did not appeal from that judgment.

All points of error have been considered and are overruled.

Affirmed.


author: DIXON, Chief Justice.

text:
    Beatrice Gipson WILLIS et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 16571.
    Court of Civil Appeals of Texas. Dallas.
    June 18, 1965.
    Rehearing Denied July 16, 1965.

      E. D. Forbes, Mayer, Mayer & Levin, Dallas, for appellants.
    White, McElroy & White and Adair Dyer, Jr., Dallas, for appellees.
   DIXON, Chief Justice.

Appellants Beatrice Gipson Willis and W. L. Davis have appealed from a judgment declaring that an automobile insurance policy issued by appellee Allstate Insurance Company has been duly cancelled.

The record before us does not include the pleadings of any of the parties. A stipulation entered into by the parties recites some though not all of the material facts. A copy of the trial court’s judgment is included in the transcript and it contains recitations as to some of the other facts and the pleadings. And in their briefs the parties are in agreement as to still other matters. By a careful reading of the above named documents we believe enough information has been developed in regard to the pleadings and the undisputed facts to enable us to pass on this appeal.

On June 29, 1962 Robert Lee Willis executed an application for automobile liability insurance. On June 30, 1962 appellee issued its policy pursuant to said application. The annual premium was $59.00, of which Willis paid $25.10, and he was allowed six months from June 29, 1962 in which to pay the balance. This meant that Willis had until December 29, 1962 to complete payment of the first annual premium.

The insured named in Item 2 of the declarations of the policy is Robert Lee Willis, whose address is shown in the policy to be 3911 Works Avenue, Dallas 15, Texas. The insurance coverage also included appellant Beatrice Gipson Willis, wife of the insured.

The policy contains the following provisions :

“11. Beneficiary
Part 3: Coverage C2
Consent of beneficiary is not requisite to cancelation, assignment, change of beneficiary, or any other change in this policy.”
“18. Assignment
Assignment of interest under this policy shall not bind the company until its consent is endorsed hereon; if, however, the insured named in Item 2 of the declarations, or his spouse if a resident of the same household, shall die, this policy shall cover (1) the survivor as named insured, (2) his legal representative as named insured but only while acting within the scope of his duties as such, (3) any person having proper temporary custody of an owned automobile, as an insured, until the appointment and qualification of such legal representative, and (4) under division 1 of Part 2 any person who was a relative at the time of such death.”
“19. Cancelation
* * * This policy may be canceled by the company by mailing to the insured named in Item 2 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancelation stated in the notice shall become the end of the policy period.”

On October 28, 1962 Robert Lee Willis died. Appellant Beatrice Gipson Willis, his surviving widow, says that in looking through her husband’s papers she found a copy of his application for insurance. But she never notified appellee Allstate Insurance Company that her husband had died, and she never requested that the insurance policy in question be changed to her name. No further payments on the premium were paid after the initial payment of $25.10 on June 29, 1962 by Robert Lee Willis or anyone else.

On December 20, 1962 appellee mailed its notice of cancellation addressed to Robert Lee Willis at 3911 Works Avenue, Dallas 15, Texas, the cancellation to become effective January 2, 1963 because of failure to pay premium. There is nothing in the record to indicate that ap-pellee was aware that Robert Lee Willis had died.

On January 9, 1963 appellant Beatrice Gipson Willis was involved in an automobile accident. As a result of this accident a suit was filed against her by W. L. Davis individually and as next friend of Henry Loy Davis.

Thereafter appellee Allstate Insurance Company filed this suit against appellant Beatrice Gipson Willis, and W. L. Davis, individually and as next friend of Henry Loy Davis. As we have said, the transcript before us does not include copies of the pleadings of the parties, but the court’s judgment indicates the nature of appellee’s suit.

On November 18, 1964 judgment was rendered in favor of Allstate Insurance Company in the suit it had filed against Beatrice Gipson Willis and W. L. Davis. We quote from the court’s judgment:

“And it appearing to the Court that the facts and the law are with the Plaintiff, Allstate Insurance Company, and that said Plaintiff should have judgment as prayed for in its Second Amended Original Petition on file herein,
“IT IS accordingly ORDERED, ADJUDGED AND DECREED that the said policy of insurance in question issued to Robert Lee Willis pursuant to his application therefor dated June 29, 1962, issued on June 30, 1962, and being numbered 16 057 337 06-30, had been duly cancelled by the mailing of a notice of cancellation in accordance with the terms of said policy, said cancellation being effective January 2, 1963, and therefore of no force and effect thereafter, and therefore not being in effect on the date of the automobile accident (namely January 9, 1963) which is the subject of a suit in controversy, bearing number 78, 274-G/B in this same 44th District Court, by and between the said Defendant W. L. Davis, individually and as next friend of Henry Loy Davis (as plaintiffs in the suit brought by them) and the Defendant, Beatrice Gipson Willis (defendant in the suit brought by Davis).”

Appellants Willis and Davis in their brief present seven alleged points of error. However, the one question raised by appellants’ points is this: Under the undisputed facts as presented by the record herein, was the insurer entitled to cancel and did it effectively cancel the policy as of January 2, 1963 by mailing the notice of cancellation on December 20, 1962 to the insured named in Item 2 of the declarations of the policy, namely, Robert Lee Willis, at the address shown in the policy, 3911 Works Avenue, Dallas 15, Texas ?

We are of the opinion that the trial court was correct in holding that the policy had been cancelled.

The rule is well established in various jurisdictions including this state that when a policy of insurance provides that the insurer may cancel within not less than ten days by mailing a written notice of cancellation to the insured named in the policy at the address shown in the policy the cancellation becomes effective pursuant to such mailed notice, and if the policy so provides the mailing of notice as aforesaid shall be sufficient proof of notice. Insurance Co. of Texas v. Parmelee, Tex.Civ.App., 274 S.W.2d 944; Texas Casualty Ins. Co. v. McDonald, Tex.Civ.App., 269 S.W.2d 456; Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App., 227 S.W.2d 257; Aetna Ins. Co. v. Aviritt, Tex.Civ.App., 199 S.W.2d 662; Gulf Ins. Co. v. Riddle, Tex.Civ.App., 199 S.W.2d 1000; California Western States Life Ins. Co. v. Williams, Tex.Civ.App., 120 S.W.2d 844.

It is true, as appellants argue, that the insurer is held to a strict compliance with the terms of the policy contract. United States Liability Co. v. Baggett, Tex.Civ.App., 285 S.W.2d 804, 807. It has been held that even when the insurer has actual notice of a change of address by the insured named in the declarations, it is bound at its own peril to mail a notice of cancellation to the insured at the address stated in the policy until it receives a request from the insured that notice be sent to another address. State Farm Mutual Automobile Ins. Co. v. Chaney, 10 Cir., 272 F.2d 20; Gendron v. Calvert Fire Ins. Co., 47 N.M. 348, 143 P.2d 462, 149 A.L.R. 1310. However, if the insurer does strictly comply with the terms of the policy the cancellation becomes effective though the insured may never receive the letter of cancellation. Medford Ins. Co. Ltd. v. Weimer, Tex.Civ.App., 385 S.W.2d 589; Insurance Co. of Texas v. Parmelee, Tex.Civ.App., 274 S.W.2d 944; Texas Casualty Ins. Co. v. McDonald, Tex.Civ.App., 269 S.W.2d 456.

In this case there was a strict compliance by the insurer with the terms of the policy in regard to the right to cancel. There is nothing in the policy which expressly requires appellant Willis to give notice to the insurer of her husband’s death and her desire to have her name substituted for his in Item 2 of the declarations. However, we believe that in the absence of such notice or knowledge the insurer was justified in mailing the notice of cancellation to the insured named in Item 2 at the given address as provided by the terms of the policy, thereby effecting cancellation of the policy. Appellants’ points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    Ken L. WALLIS, Appellant, v. C. B. McGUFFEY, Appellee.
    No. 16580.
    Court of Civil Appeals of Texas. Dallas.
    June 25, 1965.

      Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Emory L. White, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Appellee’s suit against appellant was upon a purported verified account pursuant to Rule 185, Texas Rules of Civil Procedure. Appellant excepted to the sufficiency of the itemized account because same did not comply with the rule. The trial court overruled the exception and rendered judgment for appellee. Appellant assails the judgment in three points of error in which he contends that the purported sworn account was insufficient in that (1) the verification to the account failed to state that it was due and (2) the itemization contained in the account, listing only dates and figures, was fatally defective. We agree with appellant and reverse the judgment.

One of the express provisions of Rule 185, T.R.C.P. is that the account must be supported by affidavit stating, inter alia, “that it is due.” The affidavit of appellee in this case does not contain such language. The failure to so allege that the account is due renders the affidavit fatally defective. Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58.

Rule 185, T.R.C.P. provides that action may be instituted upon a claim “for goods, wares and merchandise * * The statement of “merchandise purchased” contained in appellee’s affidavit relied upon to support the judgment in this case is as follows:

Quantity 14 5 Stock Number/Description Unit Price S-l Units 265969-274832-264495-275069-274830-250793 L Units 522948-541639- 99.50 553500-545367-543522 2000448 400-W Timers 245.25 3.50 Extension 2,026.50 497.50 245.25 84.00 Total Price Payments, Credits Balance due $2,853.25 2,624.25 $ 229.00” to

It has been repeatedly held by our courts that general statements contained in affidavits such as “merchandise”, followed by listing of invoice numbers, or giving the dates and figures without description of the various items, is insufficient to comply with Rule 185, T.R.C.P. For example, in Becker, Smith & Page v. William Cameron & Co., Civ.App., 22 S.W.2d 951, the account claimed was “1 bundle, pattern 5129, style DD, plain 16, price 36.” The Waco Court of Civil Appeals held that such was a fatally defective description. See also Wall & Carr v. J. M. Radford Grocery Co., Civ. App., 176 S.W. 785; A. Harris & Co. v. Grinnell Willis & Co., Civ.App., 187 S.W. 753; Hickman v. Scudder-Gale Grocer Co., Civ.App., 62 S.W. 1081; Adelman v. Hamilton-Brown Shoe Co., Civ.App., 297 S.W. 863; Taylor v. Wright Sales Co., Civ.App., 357 S.W.2d 824. In the recent case of Anderson-Dunham, Inc. v. Lee Rubber & Tire Corp., Civ.App., 378 S.W.2d 99, we had occasion to discuss the question of sufficiency of identification of goods, wares and merchandise described in a chattel mortgage. We hold that the vague identification of the merchandise alleged by appel-lee in this case is insufficient to comply with Rule 185, T.R.C.P.

Appellee seeks to avoid the consequences of his failure to allege the essential requisites of Rule 185, T.R.C.P. by contending that appellant’s special exception was too broad and general and therefore not legally sufficient to direct the court’s attention to the matters complained about. We cannot agree. The special exception was sufficient to direct the court’s attention to both the affidavit and the rule itself, which is all that is required. The court erred in failing to sustain such exception. Having based the judgment rendered herein on a defective itemized sworn account, the judgment must necessarily fall.

Reversed and remanded.


author: DENTON, Chief Justice.

text:
    Lloyd COLVIN, Jr., Appellant, v. Ray W. BASKETT, Appellee.
    No. 7514.
    Court of Civil Appeals of Texas. Amarillo.
    July 6, 1965.

      Robinson & Fotheringham, Amarillo, for appellant.
    Tom M. Seay, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit was filed by Ray W. Baskett, appellee, against Lloyd Colvin, Jr. for damages for the failure of Colvin to pay over to Baskett the sum of $1,050.00, the alleged value of a bag of coins owned by Baskett and sold by Colvin. By cross-action Colvin sued for commissions of $100.00 owed him by Baskett and for the sum of $175.00, the alleged amount of expenses incurred by Colvin in connection with the sale. The trial court, without a jury, rendered judgment for Baskett for $1,050.00 less a $100.00 commission earned by Colvin and denied the other relief sought on his cross-action.

Colvin is a coin dealer engaged in the business of buying and selling rare coins in Amarillo, Texas. Baskett is a coin collector and as such buys and sells rare and uncirculated coins. In the latter part of July or early August of 1963 Baskett listed with Colvin for sale two bags of “Small d Denver” uncirculated pennies. Each bag contained 100 rolls of pennies. On the same day Pat Roberts, a son-in-law of Baskett, listed with Colvin by telephone one bag of the same type of coins. Baskett and Roberts were partners in the deal. Colvin immediately listed three bags of these coins for sale on his nation-wide teletype system. In response thereto a New York coin dealer contacted Colvin and purchased the three bags of coins listed for $1,050.00 each. When Colvin notified Baskett of the sale, Baskett then informed him he had only two bags of coins rather than three. The apparent mistake was made when Colvin understood Baskett had two bags and Roberts had one bag when in fact one of the bags Baskett listed was the one delivered by Roberts. Baskett and Roberts subsequently delivered one bag each to Colvin, and they were in turn delivered to the purchaser. Baskett testified he immediately asked Colvin to go on the teletype and inform the purchaser of the mistake and that there were only two bags for sale rather than three. His testimony is Colvin refused to do this. Roberts was paid for the bag of coins he delivered less $50.00 commission. Colvin refused to pay Baskett. It is the value of this bag of coins which Baskett sues for.

Approximately one week after this transaction took place, Colvin and Baskett drove together to Denver, Colorado, to attend the National Coin Show. Baskett took along another bag of the same type of pennies to the show, and it was sold for the same price to Ted Thrush of Lubbock. Baskett and Thrush testified it was bought from Colvin, while Colvin testified it was sold by Baskett. Admittedly, Colvin received no commission on that sale, and it is this commission Colvin sues for in his cross-action. On or about September 10, 1963, London’s Coin Dealers of New York, the purchaser of the three bags, notified Col-vin they were replacing the bag that was not delivered at a cost of $2,275.00. After giving Colvin credit for $1,050.00, the value of Baskett’s bag of coins that were delivered and not paid for by London, London billed Colvin for $175.00 as the balance due on the original three-bag deal. It is un-contradicted Colvin paid this amount to London, and he in turn is seeking this amount together with a commission in his cross-action.

The judgment entered was not supported by appellee’s pleadings, and in several instances is contrary to such pleadings. Bas-kett pleaded he listed two bags of coins to be sold by Colvin as his agent; that on August 2, 1963, Colvin telephoned him that he had sold the two bags for $1,050.00 each and requested Baskett to deliver the coins to him; that Baskett delivered one bag of coins; and that Pat Roberts delivered the other bag a day or so later; that Colvin paid Roberts for the bag he delivered; but failed to pay Baskett for the bag he delivered; that Colvin admitted having received payment for the coins which were delivered by Baskett; after demand for $1,050.00, less $25.00 commission per bag, Colvin declined to pay Baskett the sum received from the sale of the coins.

The trial court’s judgment specifically found Baskett listed two bags of coins with Colvin; that Colvin sold two bags for Bas-kett ; that Baskett delivered only one bag of coins; that Baskett never delivered the second bag of coins; that the price of the coins increased to $2,275.00; that the duty was on the defendant Colvin to mitigate the damages and replace the bag of coins undelivered by Baskett when the price was $1,050.00; that Colvin did not mitigate the damages; and that Colvin was billed and paid $175.00 to make up the deficiency to the third-party purchaser. The trial court then awarded Baskett judgment for $1,-050.00 less a $100.00 commission earned by Colvin on the two bags sold; denied Colvin recovery of $175.00 for alleged expenses and attorney’s fees.

The evidence, although uncertain and indefinite in several instances, was in conflict in several particulars with both the pleadings and findings of the judgment. The most apparent inconsistencies are: Colvin did in fact sell three bags of coins; Colvin did not receive the payment for the bag of coins delivered by Baskett; Bas-kett testified he delivered a third bag of coins to Colvin at the Denver coin show; and that Colvin sold it to a Lubbock coin dealer; and the testimony of Baskett that he instructed Colvin to cancel the sale of the third bag when the mistake was discovered.

It is fundamental that a court’s judgment must conform to the pleadings and if it fails to do so it is erroneous. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130; Moszkowicz v. A. B. Lewis Co., (Tex.Civ.App.), 268 S.W.2d 548, (Refused, NRE) ; Holley v. Central Auto Parts, (Tex.Civ.App.), 347 S.W.2d 341, (Refused, NRE) ; Rule 331, Texas Rules of Civil Procedure. It is also settled that proof without pleadings is not sufficient to support a judgment. Shambaugh v. Anderson, (Tex.Civ.App.), 92 S.W.2d 530, (Dismissed, WOJ). The plaintiff’s pleadings simply plead a breach of contract by the failure of Colvin to pay Baskett the value of one bag of coins. There is a total lack of pleadings to support a mutual mistake; Colvin’s refusal to follow Baskett’s instructions to cancel the order for sale of one bag of coins or to support the trial court’s finding that Colvin owed the plaintiff a duty to mitigate his damages. In view of the variances between plaintiff’s pleadings, the evidence offered, and the findings of the trial court’s judgment, the case must be reversed and remanded.

The judgment of the trial court is accordingly reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Lucille ADAMES, Individually and as Next Friend for Dorina Adames, Appellants, v. HOUSING AUTHORITY OF the CITY OF SAN ANTONIO et al., Appellees.
    No. 14391.
    Court of Civil Appeals of Texas. San Antonio.
    June 16, 1965.
    Rehearing Denied July 21, 1965.

      Lieck & Lieck, San Antonio, for appellants.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is an appeal from a summary judgment in favor of Housing- Authority of the City of San Antonio and Clara Lynch, appellees herein, against Lucille Adames, individually and as next friend for her minor daughter, Dorina Adames, plaintiffs below and appellants here, in a suit brought to recover damages for the minor child’s injury in a fall on premises leased by the Housing Authority to the parents of the minor appellant.

The record shows that the two-year-old child was injured on an open and obvious permanent physical object, a foot scraper located upon the premises leased to the parents of the minor, and that such foot scraper was in place at the time the lessees took possession of the premises.

It is undisputed that Dorina Adames and her parents were tenants at the Alazan-Apache Courts in San Antonio, which were owned by appellee Housing Authority of San Antonio, and operated through its manager, Clara Lynch. Appellants were tenants of said Housing Authority, living in a ground floor unit designated as 211 Mirasol Place.' On April 1, 1963, the minor appellant fell over the metal foot scraper located on the back porch of the apartment unit and sustained serious injuries. Appellants allege this foot scraper and others in the Alazan-Apache Courts constituted a dangerous condition of which appellee Housing Authority had actual notice; that the appellees were negligent in maintaining the dangerous foot scraper there, and in failing to remove it, knowing young children would likely be injured thereon, and that such negligence was a proximate cause of the minor appellant’s injuries.

Appellees filed a motion for summary judgment supported by an affidavit of George W. Seale, to which was attached the lease agreement dated June 16, 1960, between the Housing Authority and the minor appellant’s parents. Also, there were attached to the affidavit photographs of an iron pipe railing and foot scraper located on the back porch of the leased premises, and the affidavit stated that this railing and foot scraper had been in the same location since prior to the date of the lease. This fact was admitted by Mrs. Lucille Adames in an affidavit filed by her.

The trial court properly granted the summary judgment because the Housing Authority was not the possessor of the premises at the time Dorina Adames was injured. The premises had been leased to the minor appellant’s parents and the foot scraper was a permanent physical object located on the premises at the time appellants took possession thereof under the lease. The Housing Authority was not liable under these circumstances. Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446 (1944); 35 Tex.Jur.2d 606, 607 ; 32 Am.Jur. 529-532; 52 C.J.S. Landlord and Tenant §§ 417, 419; Restatement of Torts, § 356.

The authorities cited by appellants are not in point here because in those cases the landlord, or owner of the property, was in possession of the land. Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587; Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231.

In the latter case a young child drowned in a water hole which was in the possession of the landowner, and not as here on the premises in possession of the child’s parents. In the Eaton case the dipping vat in which the child drowned was upon land in possession of the landowner and under his control. While he had leased to the parents of the child a residence in which they lived, such lease gave them no control over the dipping vat. Here the parents of the child were in full possession of the premises where the child was injured.

Appellants contend that the iron pipe railing and the foot scraper attached thereto were between the apartment occupied by them and the next apartment, and were intended for the use of the tenants of both apartments, and were therefore in the possession of the Housing Authority. We cannot agree. The pictures of the iron pipe railing and the foot scraper in the record show that the railing and scraper were half on the premises leased by appellants' and half on the premises of the adjoining apartment. This is sufficient to establish that appellants were in possession of the foot scraper which caused Dorina to fall and hurt herself.

Appellants refer to the rail and foot scraper as a passage-way intended for the use of tenants of both apartments. It was anything but a passage-way. It was intended, apparently, to prevent passage from the premises of one tenant to that of the next apartment.

The judgment of the trial court is affirmed.


author: GRIFFIN, Justice.

text:
    H. T. TAYLOR, Sr., Petitioner, v. Louis BANKS, Jr., Respondent.
    No. A-10535.
    Supreme Court of Texas.
    June 23, 1965.
    Rehearing Denied July 28, 1965.
    Spiner, Pritchard & Thompson, Houston, for petitioner.
    Frank B. Brooks, Jr., Austin, for respondent.
   GRIFFIN, Justice.

This is a suit brought by petitioner H. T. Taylor, Sr., against Banks Transportation Company, Louis Banks, Jr., and others to force the transportation company to transfer on its books 1200 shares of its stock which Taylor alleged he owned. Trial was to a jury, but at the conclusion of the testimony the trial judge discharged the jury and entered judgment as a matter of law ordering the transportation company to issue to Taylor the proper certificates showing Taylor’s ownership of the stock, and to transfer these 1200 shares to Taylor on the books and records of the transportation company. The trial court’s judgment further held that neither Louis Banks, Sr., Louis Banks, Jr. nor Clay Cotten, who had intervened, owned any of the 1200 shares. From this judgment only Louis Banks, Jr. appealed. The Court of Civil Appeals reversed the trial court’s judgment and remanded the case to the district court for retrial. 383 S.W.2d 824.

We granted Taylor’s application for writ of error and reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The suit arose out of the following facts: December 17, 1959, Louis Banks, Jr. executed and delivered to Taylor his note for $26,206.53 and an additional note payable to Taylor Lumber Company in the sum of $9,082.11. Petitioner Taylor became the owner of this last note prior to its maturity. Banks made various payments on both these notes for a year or two, but by March 19, 1963, both notes were past due. To secure the payment of each of these notes, Banks had pledged Certificate No. 1 for 1200 shares of stock in Banks Transportation Company, and had executed a collateral assignment of these 1200 shares to Taylor.

March 19, 1963, Taylor’s attorneys wrote Banks, demanding full payment of both notes on or before April 4, 1963. On the same day the attorneys wrote Banks that the 1200 shares of common stock “will be sold” at 11:00 A.M., Thursday, April 4, 1963, and stating the sale would be held in the lobby at the main San Jacinto Street entrance of the Harris County Court House, 301 San Jacinto Street, Houston, Texas. The letter further said: “Either you or such other parties as you may locate may be interested in purchasing such stock at such sale.”

At the time and place set out in the letter notice to Banks, two of Taylor’s attorneys and Taylor were present. The letter of notification to Banks was read aloud and bids called for, whereupon Taylor bid $5,000.00 for the stock and there being no other bids, the stock was struck off to Taylor.

The transportation company was controlled by Banks and his relatives and they were the officers of the company. Taylor made demand that the stock be transferred on the books of the company and the company refused. This suit resulted.

Each of the two notes which Banks had given to Taylor contained the following provision:

“In the event of non-payment of this note at maturity, however the same is brought about, the holder hereof is hereby invested with full authority to use, transfer, or sell the said pledged property, or any part thereof, or to cause the same to be done at public or private sale, with or without notice or demand of any sort, at such place and on such terms as the said holder hereof may deem best, and the holder of this note is authorized to purchase said collateral when sold for his own protection and the proceeds of such sale, transfer, or hypothecation shall be applied to the payment of this note, together with all interest, attorney’s fees and costs. The surplus, if any, after payment of this note, together with all charges above stated, shall be paid to the maker of this note, and if the proceeds of the above sale shall not be sufficient to pay this note, the maker hereof agrees to make good any deficit.”

Taylor did not file suit on these notes nor ask for a deficiency judgment against Louis Banks, Jr., but sought only the relief above outlined.

Banks filed a general denial and pleaded a failure of consideration for the two notes. This failure of consideration was alleged to have resulted from the fact that Taylor and Banks entered into an agreement whereby Taylor sold to Banks 50 shares of stock in a cab company, nineteen taximeters, two taxicabs and two taximeters and thirteen notes signed by Taylor’s employees and given for the purchase price of certain taxicabs and equipment purchased from Taylor by these employees. Allegations were made by Banks that these notes could not be collected and that the collateral securing them was worthless cars, and therefore there had been a partial failure of consideration for the two notes he gave to Taylor. It was to secure these two notes that the 1200 shares of stock were pledged as collateral security.

Banks had no pleadings of fraud or misrepresentation on Taylor’s part in conducting the sale of the collateral. Neither did Banks seek to recover the 1200 shares of stock or their value. Banks made no tender of any balance due on his note, nor did he allege that Taylor had placed it beyond his power to return the stock to Banks if Banks paid the balance due on the notes. It was not pleaded that the stock brought an inadequate price at the sale.

Since Taylor was not seeking to recover on the two notes, the plea of failure of consideration evidently went out of the case. There is no complaint here nor in the Court of Civil Appeals, nor does the judgment of the trial court mention such plea. There is no complaint of the failure of the trial court to dispose of this plea in his judgment.

In the trial court’s judgment it is recited “that there is good and sufficient evidence in this case to show that the sale of such 1200 shares of the capital stock of Banks Transportation Company held on April 4, 1963, was a good and valid sale and should be in all things ratified, and confirmed by this court. That such evidence was in no way controverted by any of the other evidence introduced by plaintiff, defendant or intervenor in the trial of this cause.”

Banks, as petitioner in this Court, seeks to have the judgments of the trial court and the Court of Civil Appeals reversed and judgment here rendered for Banks, because Taylor did not show (a) that he made a reasonable effort to obtain the best possible price for the 1200 shares of stock sold under the pledge agreement; (b) that the sale of the 1200 shares of stock as collateral was a good and valid sale; (c) that the sale held was a private sale rather than a public sale; (d) that he or his attorneys made any effort to secure bidders at or to notify the public of the time and place of the sale.

A reading of the collateral pledge agreement sets out what Taylor must do in order to make a valid sale of the 1200 shares of stock.

It has been recognized since the case of King & Co. v. Texas Banking & Insurance Co., 58 Tex. 669 (1883), “That parties by contract may regulate in advance the remedy which the creditor must pursue in subjecting property pledged to the payment of the debt which it is hypothecated to secure, cannot be questioned.

“The time, mode and place of sale may be so fixed; and it has been held that the parties may agree that the property may be sold without notice and at a private sale upon default of pledgor to pay the debt.”

In the case of Kent v. National Supply Co. of Texas, Tex.Civ.App., 1931, 36 S.W.2d 811, writ refused, suit was brought by National Supply Company against Kent et al for five pieces of oil field equipment. National Supply claimed title under-a valid chattel mortgage sale at which it was the purchaser. The chattel mortgage set out the terms under which a sale could be made and gave authority to the supply company to purchase at such sale. Kent attacked the sale on various grounds. The Court of Civil Appeals, in upholding the sale said:

“* * * Appellee proved affirmatively the execution and record of its mortgages covering the entire property, a sale thereunder, and its purchase at such sale. The presumption is that appellee in this matter followed the law and not that it violated it. Haynes v. Western Union Telegraph Co. (Tex.Com.App.) 231 S.W. 361, 362, par. 2, and authorities there cited. A contention that such sale was invalid and insufficient to reinvest appellee with the title to such machinery must therefore be supported by affirmative proof of some fatal defect therein.”

In Smith v. Allbright, Tex.Civ.App., 279 S.W. 852 (1926), aff. 288 S.W. 178 (1926) in a trespass to try title suit over a tract of land, an attack was made on the sate under a deed of trust because all the requirements of the deed of trust and the law had not been met. One of the parties to the suit claimed title to the land by virtue of having purchased at this trustee’s sale. The Court of Civil Appeals said: “It might be well to here state that, since the appellants are not attacking the trustee’s deed directly, but collaterally, they can only insist that appellees show the trustee complied with the terms, conditions, and prerequisites imposed upon his power of sale which would render the sale void, if he failed to. comply with them.” The court reviews the testimony of the trustee making the sale and holds that this evidence shows that the trustee did comply with the terms and provisions of the deed of trust.

In the case of Haynes v. Western Union Telegraph Co. (Tex.Comm.) 231 S.W., 361 (1921), holding approved by the Supreme Court, it is stated:

“ ‘It is, of course, competent for the parties to agree by express terms that upon the pledgor’s default, or upon his failure to keep the security good, the pledgee may sell at public or private sale at his option without giving notice of his intention or the time or place of sale, or upon giving a specified notice of such time and place. * *

Again, quoting from Williams v. Talbot, 27 Tex. 159, 168, 169 (1862), the court said:

“** * * It is always to be inferred, in the absence of testimony to the contrary, that parties have acted within the scope of their legitimate authority. * * *’
“There being no presumption that the bank in effecting a foreclosure of its lien by sale of the collateral, acted contrary to law or exceeded the scope of its legitimate authority, and there being no evidence to that effect, there is nothing to show that the sale was not fully binding on plaintiff in error.” (Emphasis added.)

The pledge contract or assignment of the stock as collateral was not introduced in evidence. As in our case, the debtor made no effort to redeem the collateral, nor had any pleadings asking that the sale be set aside and the parties returned to the status they occupied prior to the sale.

“One questioning the good faith of a sale of the pledge under a power of sale or asserting that the property is worth more than it sold for, has the burden of establishing his contention.” 41 Am.Jur. p. 646, § 86; idem p. 651, § 93. See alsos 46 Tex.Jur.2d § 21, p. 215; Idem § 25, pp. 220, 221; 72 C.J.S. Pledges § 52c, p. 98; § 59a(l), p. 117 and § 59c, p. 118; § 60c (2) (b),p.122; § 61b (2),p.127.

In our case the pledge agreement authorizes sale at private sale; with or without notice or demand of any sort at such place and on such terms as the pledgee may deem best; that the pledgee may become the purchaser at such sale.

The uncontradicted evidence shows that Taylor gave Banks notice of the time and place of sale, and that he had demanded payment of the notes; that he notified Banks to be present with such other persons as might be interested in purchasing the stock; that the sale was held at the time and place set out in the notice and bids called for; that Banks did not see fit to attend; that there was only one bid submitted, and that by Taylor, and the stock was struck off to Taylor.

The trial court did not give judgment against Banks for any amount due on the notes, but did give the notes credit for the $5,000.00 which the stock brought. Taylor did not seek any judgment on the notes against Banks. The evidence in this case shows as a matter of law that Taylor complied with the terms of the collateral agreement regarding his right to sell this collateral stock. There is no pleading or evidence- of fraud, misrepresentation or collusion- to prevent any and all persons interested from bidding.

Banks, to sustain his contention, relies on the case of King v. D. Sullivan & Co., Tex.Civ.App. (1906), 92 S.W. 51, no writ history. That was a case where Sullivan sued King for balance due on a note secured by deed of trust on certain real estate and personal property. The note being delinquent, Sullivan had the trustee sell the security, and the amount it brought was credited on the note, and the suit was for the balance due on King’s note. King filed a cross action seeking damages from Sullivan for falsely causing King to be declared a bankrupt, and also asking for the value of certain vendor’s lien notes pledged as security and which King alleged Sullivan had sold for less than their value, and King asked that the excess value of the notes, if any, be credited on Sullivan’s claim on the note. That suit is not like our suit, because in our suit Banks did not seek return of the stock, did not tender or offer to pay the two notes and had no pleadings attacking the sale, or claiming the stock sold for an inadequate price.

Banks also relies on King v. Boerne State Bank, Tex.Civ.App. (1913), 159 S.W. 433, writ denied. King sued for the value of 8000 shares of stock pledged to secure his note to the bank. He alleged fraud, misrepresentation and estoppel against the bank’s sale of the pledged security; that the bank had sold the security to a third party, and he asked for the value of the stock at the time of the sale. The trial court instructed the jury to return a verdict for the bank. The Court of Civil Appeals held the evidence was sufficient to raise a jury issue that the sale was not made in good faith and with that regard for plaintiff’s interest which the law requires. The case was reversed and remanded to try out these issues.

In Reisenberg v. Hankins, Tex.Civ.App. (1924), 258 S.W. 904, dismissed for want of jurisdiction, Hankins sued Reisenberg for a tract of land and to cancel a deed of trust, and to declare a sale held thereunder void. Hankins alleged fraud in making the sale and a conspiracy to hold the sale at a time when no bidders would be present. The trial court made specific finding upholding Hankins’ allegations of fraud and conspiracy on the part of Reisenberg and one Minchew. The Court of Civil Appeals affirmed and held that where both parties and the trial court understood that the controlling issue in the trial was one of fraud and the trial was had on that theory, the case must stand or fall on such theory on appeal. The Court of Civil Appeals discusses the evidence and points out that it supports the trial court’s findings and affirms the trial court. In the case at bar there are no allegations or proof of fraud.

In the case of Lang v. Harwood, Tex.Civ.App. (1940), 145 S.W.2d 945, no writ history, Judge Alexander writing for the Waco Court of Civil Appeals, in discussing the cases of Haynes v. Western Union Tel. Co., Tex.Comm.App., 231 S.W. 361 (1921), and Kent v. National Supply Co., Tex.Civ.App. (1931), 36 S.W.2d 811, writ refused, recognized the rule announced by the two. cases that the presumption would be in favor of a valid sale under the chattel mortgage and that the burden of proof was therefore upon the one attacking the sale to prove that the alleged sale was invalid. The Waco Court pointed out that the rule announced in these two cases applied when the sale was collaterally attacked and not directly attacked. In the Lang case, a suit was brought by the mortgagor — Mrs. Har-wood — seeking recovery of the value of the property covered by the mortgage and sold under the mortgage to the mortgagee Lenz. Lenz in turn had sold to Lang.

The Waco Court held that since Mrs. Harwood had been the owner of the property and in possession of the property prior to the sale and her rights had been taken away by the sale, the burden was on the purchaser at the sale to prove a valid chattel mortgage and a valid sale where suit was brought for recovery of the property. The court held he "had not discharged this burden and plaintiff should recover the value of the property sued for, subject to a trial upon defendant Lang’s plea that Mrs. Harwood, prior to his purchase of the property from Lenz, had signed and delivered to Lenz an assignment of the property and he had purchased in reliance on this assignment.

Kolbo v. Blair, Tex.Civ.App. (1964), 379 S.W.2d 125, writ refused n.r.e., was a suit to recover a deficiency judgment by note holder against maker. Maker pleaded that the sale of certain personal property under the mortgage securing the debt was invalid and not made in accordance with the -terms of -the mortgage, nor was any notice of sale given to the mortgagor. The courts held with the maker and the Court of Civil Appeals said: “This power of private sale does not eliminate the necessity of proving the existence of an actual sale nor does it relieve the mortgagee seeking to obtain a deficiency judgment from proving that the sale was fairly conducted.” In the case at bar no deficiency judgment was asked for.

Neither of the above four cases is in point in the case at bar. Taylor proved that he complied with the terms of the pledge agreement contained in the notes. The trial court held that the uncontradicted evidence showed that the sale was a good and valid sale as a matter of law. With this holding we agree.

The facts in this case show as a matter of law that a sale was made by Taylor in compliance with the terms of the pledge agreement. Therefore, Taylor was entitled to have the corporation recognize his ownership of the 1200 shares of capital stock and issue to him proper stock certificate, as the trial court’s judgment directed.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

CALVERT, C. J., concurs in the result.