author: BATEMAN, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. William F. ARNOLD, Appellee.
    No. 16326.
    Court of Civil Appeals of Texas. Dallas.
    March 27, 1964.
    Rehearing Withdrawn April 24, 1964.

      Thompson, Knight, Wright & Simmons, Timothy E. Kelley, Frank Finn, Jr. and Norman R. Rogers, Dallas, for appellant.
    Howard S. Smith, Sulphur Springs, and Woodrow H. Edwards, Gilmer, for appel-lee.
   BATEMAN, Justice.

This case arises under the Texas Workmen’s Compensation Law. William F. Arnold, claiming to have been an employee of Shamrock Van Lines, hereinafter called Shamrock, made claim against the appellant as insurer of Shamrock under that law. The jury found that he was an employee and that he was totally and permanently incapacitated as a result of accidental injuries sustained by him in the course of his employment. The insurer, The Travelers Insurance Company, appeals and presents six points of error.

The first point is that the trial court erred in overruling appellant’s motion for instructed verdict made when the appellee rested. Appellant waived its right to complain of this ruling by proceeding to introduce testimony in support of its defenses. The first point is therefore overruled. Robb v. Gilmore, Tex.Civ.App., 302 S.W.2d 739, err. ref. n. r. e.; 41-B Tex. Jur., TRIAL — CIVIL CASES, p. 213, § 184; McDonald’s “Texas Civil Practice," § 11.26.

By its second and third points of error appellant asserts that there was no evidence, or at least insufficient evidence, to' support the jury findings that appellee was an employee of Shamrock and in the course of that employment when injured. Appellant says the evidence shows that ap-pellee was an employee of one P. J. Fleming, an independent contractor. A determination of this question necessitates a statement.

By a written Truck Lease Agreement dated June 21, 1961, Fleming leased his 1956 truck-tractor to Shamrock to be used for towing a furniture van trailer owned by Shamrock. The portions of this lease touching on this question are summarized as follows (all italics ours) :

Fleming, as lessor of the equipment, agreed:

1. That the vehicle would be used exclusively for transporting household goods-“under the direction and control of Lessee.”

2. That Fleming would at his own cost and expense either drive the vehicle himself or provide necessary driver and assistants, paying their wages and all taxes measured thereby.

3. That he would at his own cost provide workmen’s compensation insurance “covering said employees while operating in the service of Lessee,” or authorize Shamrock to obtain such insurance and reimburse Shamrock for the cost thereof.

4. To employ only experienced and qualified drivers and assistants and furnish Shamrock with a completed and signed employment application on each such driver or assistant.

5. To pay all expenses of the operation of the vehicle.

6. To paint and letter the leased vehicle according to Shamrock’s specifications, and to remove such paint, etc. upon termination of the lease.

7. That any “service or transportation performed by Lessor which * * * is without consent, authorisation direction, and control of Lessee, * * * will be deemed an unlawful operation and a breach of this agreement and Lessee will assume no responsibility of liability for such act or acts by Lessor.”

8. To devote his services and the vehicle to the service of Shamrock exclusively in the transportation of goods, wares and merchandise, etc., “and in connection therewith to comply with all rules and regulations and instructions of Lessee.”

9. To accept, in full payment of his services and for the use of the vehicle and “services of his employees and assistants,” certain percentages of the revenues for the various services performed.

The contract speaks in numerous places of “Lessor and his employees” and “Lessor or his employees.”

One W. J. Foley was lease agent for Shamrock and signed the said lease on its behalf. He knew appellee casually, as ap-pellee had worked for others who had leased trucks to Shamrock. Appellee had also done a small amount of work for Shamrock, helping unload trucks. Appellee received $17.25 in wages from Shamrock in 1961 (the year of the accident), although it was not shown whether any part thereof was earned during the alleged employment involved in this case. Appellee had asked Foley to help him obtain employment as a helper with an owner-operator. Foley sent word to him to “come over and go to work.” Appellee reported to Foley at Shamrock’s office, where he was put in touch with Fleming, whom he had not known previously* Fleming and appellee left on the day of the contract, or a day or two later.

Although Foley testified that appellee told him he was going to work for Fleming, ap-pellee testified that he was employed by Foley, who gave him and Fleming the following instructions prior to their departure r to report to Washington, D. C.; to drive about forty-five miles an hour; to keep daily logs all the way; not to go over forty miles an hour in Virginia; not to sleep in the van or the tractor, or to smoke or drink on the job, and to treat the customers courteously. Appellee testified that in January 1961 Foley sent him to a Dr. Finch for his physical examination and paid for the same. Appellee testified positively that he was hired by Shamrock and was told that he would be paid by Shamrock; that he was not hired by Fleming. He was confronted with his signed statement made August 3, 1961 while still in the hospital in Maryland, in which he said that “the employment agreement was between Mr. Fleming and myself. He was to pay me $75 per week and I was to pay all of my own expenses,” and that “On this trip Shamrock Van Lines, Inc. was not paying me any wages as I was employed by Mr. Fleming who was to pay me $75/week.” He denied that he had made those statements to the investigator who wrote the statement, although at the end of the statement is the question, “Have you read the above report of 1 page and 14J4 lines and is it correct?” Following this appellee wrote the word “Yes” and signed the statement. Neither Foley nor any other officer or employee of Shamrock told either appellee or Fleming what route to take to get to Washington.

The van type trailer was owned by Shamrock and had its name painted on it. The tractor had painted on it “Leased to Shamrock Van Lines, MC ICC 115257.”

Fleming and appellee paid their own food and motel bills. When they arrived in Washington they loaded the trailer with cargo destined for the West Coast and departed on June 29, 1961. About noon that day the accident occurred near Cumberland, Maryland and appellee sustained serious injuries.

Foley gave Fleming a pamphlet of the Interstate Commerce Commission containing the prescribed number of hours of service for a truck driver. Foley asked appellee to keep the log required by the Interstate Commerce Commission, since he had had previous experience keeping such records, and appellee testified that the log books were furnished by Shamrock and that he mailed to Shamrock a daily report as to his hours of work.

It is our view that the evidence was sufficient to warrant the jury in believing that Fleming was actually an employee of Shamrock, rather than an independent contractor. That being true, it would not matter .whether appellee was employed by Fleming or by Shamrock, for it seems to be well settled that “when an agent, with the authority of his principal, express or implied, employs help for the benefit of his principal’s business, the relation of employer and employe between such help and the principal is thereby created and the question of whether the assistant or helper is promised any remuneration is immaterial.” Traders & General Ins. Co. v. May, Tex.Civ.App., 168 S.W.2d 267, 269, err. ref. w. o. m.

It is also now quite well settled in this state that if the employer “has the right of control in directing, not merely the end sought to be accomplished by the employment, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done,” the relation of employer and employee is established. W. D. Haden Co. v. Ryman, Tex.Civ.App., 362 S.W.2d 133, 135, err. ref.

Application of that test to the facts of this case compels the conclusion that Shamrock had the ultimate right to control the details of Fleming’s as well as appellee’s work, from which it must follow that they were both employees of Shamrock. Traders & General Ins. Co. v. Frozen Food Express, 255 S.W.2d 378, err. ref. n. r. e.; Wardlow v. Newberry, Tex.Civ.App., 319 S.W.2d 437, no writ hist. Accordingly, the second and third points of error are overruled.

Appellant’s fourth point of error asserts that there is no evidence, or in the alternative that there is insufficient evidence, to support the jury’s finding that appellee’s incapacity to labor is permanent.

The only evidence bearing on the quantum and duration of appellee’s incapacity consisted of the report of the physical examination made January 25, 1961 by Dr. Finch showing no impairments or departures from good health and appellee’s own testimony that before the accident of June 29, 1961 there was nothing wrong with him, but that after the accident and at the time of trial on April 15, 1963 it was difficult to hear and understand him because there was a limitation of his ability to open his mouth, the bones having been broken and “tied back there,” that he remained in the hospital in Maryland about two months, that the whole roof of his mouth was torn out and his tongue cut in two, that he lost all but about eighteen of his teeth, that his cheek bone on the left side was crushed; that his left eye was so injured as to cause him to see two objects with that eye, which condition was still present at the time of the trial; that his right hip and pelvis bone were broken, that the pelvis bone still “works up and down” as he walks; that the accident pulled a vertebra loose in his back; that his right leg above the ankle swells all the time and he can hardly walk on it, that this pains him all the time and his hip never does quit hurting; that while he was in the hospital he wore a girdle and was in a cradle for about three weeks and that when he left the hospital he was fitted with a steel girdle.

Arnold further testified that he had tried to work some since the accident; that prior to the accident he had made a living for years driving a van and performing manual labor; that he does not have very much education and does not know of anything he could get to do now to provide for himself and his family; that he cannot tell that he has “got any better at all,” and that two or three months before the trial he voluntarily submitted to examination by a Dr. Warren at the request of appellant’s attorneys. Dr. Warren did not testify. Arnold testified on cross examination that in 1962 he worked for Mr. L. F. Corrigan as a night watchman for about three weeks, that he stayed only three weeks because he had to walk too much and couldn’t do the walking. He later said that he became ill with the flu for two or three weeks and then when he reported back for work he found his job had been filled by someone else; that he hasn’t worked since then; that he tried to but couldn’t. He tried to work at Admiral Van Lines and several other places but he could not do carrying; that he tried to work for several other transportation companies but couldn’t work for them because he couldn’t pass the physical examination. He was 59 years of age. Records of the Maryland hospital showed fractures of his maxilla and left tibia and separation of certain joints; that on admission Arnold stated that he had high blood pressure; also that a consulting doctor received the impression that Arnold suffered from heart disease. Neither side offered a medical witness.

This latter fact is of no great consequence because it is now well settled in Texas that total and permanent disability may be reasonably inferred from circumstantial evidence produced by lay witnesses, even though such evidence is contradicted by the testimony of medical experts. Travelers Ins. Co. v. Wade, Tex.Civ.App., 373 S.W.2d 881, 885, err. ref. n. r. e., and cases cited therein.

Any doubt we may have as to whether this evidence actually supports the jury finding of permanent incapacity must be resolved in favor of the right of the injured workman to receive compensation. Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318; Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.

The jury had the right to believe all of appellee’s testimony and, observing what they could of his physical condition in the court room, to conclude that he was totally disabled and that such incapacity was permanent. Travelers Ins. Co. v. Wade, Tex.Civ.App., 373 S.W.2d 881, err. ref. n. r. e.; Travelers Ins. Co. v. Bearden, Tex.Civ.App., 373 S.W.2d 300, err. ref. n. r. e. Total incapacity does not mean an absolute incapacity to perform any kind of labor, but a person so physically disabled that he cannot perform the usual tasks of a workman in such manner as to be able to procure and retain employment, is in law considered totally incapacitated. Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

Not being convinced by a careful study of all the evidence that the jury’s conclusion in this respect is so contrary to the overwhelming weight of the evidence as to be manifestly unjust, we overrule this fourth point of error.

This brings us to appellant’s fifth point of error, which asserts jury misconduct. Shortly after the jury took the case they sent a note to the court requesting a definition of the word “hire”, which word was used in the definition of the word “employee” in the court’s charge. This request was refused by the court. The next day one juror called to the attention of the others definitions of the word “hire” and the term “contract of hire” he had obtained from Webster’s Dictionary. The juror who testified to that stated that he changed his position on the special issue as to whether Arnold was an employee after the discussion but that he does not feel that this discussion of the dictionary term caused the change. There was no showing of what the dictionary definitions were. Moreover, there was nothing to indicate that the definitions were either wrong or that they had the slightest effect on any member of the jury.

Appellant cites S. Lightburne & Co. v. First Nat’l Bank of Rockport, (1921) Tex.Civ.App., 232 S.W. 343, no wr. hist., and Corpus Christi Street & Interurban Ry. Co. v. Kjellberg, (1916) Tex.Civ.App., 185 S.W. 430, no wr. hist. Those cases were decided prior to the adoption of Rule 327, Vernon’s Texas Rules of Civil Procedure, which provides, inter alia, that such misconduct will authorize the trial court to grant a new trial “if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.” This now places the burden on appellant to show that injury probably resulted from the misconduct. Davis v. Damge, Tex.Civ.App., 328 S.W.2d 203, err. ref. n. r. e. The trial court is no longer required to grant a new trial if it has only a reasonable doubt as to whether misconduct affected the verdict. City of Dallas v. Hutchins, Tex.Civ.App., 226 S.W.2d 155, writ, ref., n. r. e.; Lackey v. Moffett, Tex.Civ.App., 172 S.W.2d 715, no wr. hist.

Appellant also complains that the jurors speculated during their deliberations that insurance rates for Shamrock had been increased following the accident in question and that, therefore, appellant felt that ap-pellee actually was an employee of Shamrock. This inference was probably drawn by the jury, but there was testimony, admitted without objection, to the effect that the rates had already been increased. This, it seems to us, would justify the inference. That being true, there was no misconduct. However, if mistaken in so holding, we would in any event hold that the error was harmless. Rules 327 and 434, T.R.C.P.

Our careful study of all of the testimony offered at the hearing of appellant’s motion for new trial fails to convince us that the misconduct proved probably caused injury to appellant. Therefore, under Rule 434, Vernon’s Texas R.C.P. we overrule the fifth point of error.

Appellant’s sixth point of error complains that the court improperly added to its definition of “employee” this sentence: “You are further instructed that, for purposes of the workmen’s compensation law, a worker may have the status of employee in relation to a part of the work being performed.” Appellant assails this as an improper extension of the customary and approved definition, that it is legally incorrect, is not applicable to this case, and is a comment on the weight of the evidence.

The Beaumont Court of Civil Appeals, in Dealers Nat’l Ins. Co. v. Jackson, 363 S.W.2d 297, err. ref. n. r. e., had before it the identical question, and we adopt its language and disposition of the point, as follows : “It is concluded that this instruction was not erroneous, and in any event the effect could not have been harmful to the defendant.”

Finding no reversible error in the record, the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    BURRUS MILLS, INC., d/b/a Burrus Feed Mills, Appellant, v. Otto W. HEIN, Appellee.
    No. 16330.
    Court of Civil Appeals of Texas. Dallas.
    April 3, 1964.
    Rehearing Denied May 1, 1964.
    Matthews, Matthews & Allen, Tom D. Matthews, Jr., Dallas, for appellant.
    Charles C. Smith, Jr., Cameron, and Walter M. Hilliard, Caldwell, for appellee.
   WILLIAMS, Justice.

This is a venue action involving Subdivision 5, Art. 1995, Vernon’s Ann.Civ. St. Burrus Mills, Inc., a wholesale feed processor and distributor, brought this suit in Dallas County, Texas against Otto W. Hein, also known as Pete Hein, a resident of Burleson County, Texas, upon a sworn account for the purchase price of merchandise furnished, as evidenced by statements and invoices attached to plaintiff’s petition. In due time appellee filed his plea of privilege to be sued in Burleson County. Appellant filed its controverting plea based upon the exception contained in Subdivision 5, Art. 1995, V.A.C.S. Upon hearing, the court sustained appellee’s plea of privilege, such order providing, inter alia: “The court finds that such controverting plea is insufficient in law, and declines to hear any evidence in support thereof.” Appellant’s two points on appeal complain of the trial court’s action in refusing to hear evidence on the controverting plea and in holding, as a matter of law, that such controverting plea was insufficient to justify the retention of venue 'in Dallas County. A careful review of the record convinces us that the trial court was correct in sustaining the plea of privilege and we therefore affirm such action.

As stated above, this suit was upon verified account, evidenced by statements and invoices. It is significant to observe that appellant made no effort to retain venue in Dallas County under Subdivision 5, Art. 1995, V.A.C.S. by contending that the invoices themselves provided for payment in Dallas County. Dowdell v. Ginsberg, Civ.App., 244 S.W.2d 265; Harrison v. Facade, Inc., Civ.App., 355 S.W.2d 543. Instead, appellant attempted to invoke the statutory exception to venue by relying upon a number of collateral guaranty agreements which appellee had executed on other dates and with reference to other matters than those involved in this suit. All of these contracts, apparently upon standard forms furnished by appellant, are identical (with the exception of the customer’s name) and may be illustrated by Exhibit “J” copied in the footnote. The material paragraphs in these agreements are:

“8. To be responsible for the collection of all finance notes taken from said applicant; further, the undersigned dealer guarantees collection, to the extent of 50%, of all finance notes, including principal and interest, taken from said grower under the finance agreement, such guarantee to be evidenced by a guaranty agreement and/or by endorsement of all said applicant’s finance notes, as BURRUS FEED MILLS may elect.
“9. Any obligations arising under this agreement or any guarantee signed by the dealer, or any other matters with BURRIS FEED MILLS are to be payable in Dallas, Texas, at the office of BURRIS FEED MILLS.”
(Emphasis supplied.)

Appellant concedes in its brief that the principal legal question involved here is whether the provisions of the written contracts, and especially the provision contained in Paragraph 9 oí each of them, are sufficient to establish the exception to the venue rule. Appellant also concedes that generally venue situations involving Subdivision 5 of Article 1995, V.A.C.S. involve suits on breach of a written contract whereby the written contract itself provides for payment in a particular county. Appellant argues, however, that there is no requirement that the breach for which plaintiff sues must necessarily arise out of the written contract sued upon in order to bring the action within the exception to the venue statute. Appellant relies upon such cases as Texas Mercantile Co. v. J. M. Radford Grocery Co., Civ.App., 250 S.W. 300; Peacock Military College v. Scroggins, Civ.App., 223 S.W. 232; Lange v. Jones, Civ.App., 261 S.W. 378; A. Harris & Co. v. Cook, Civ.App., 62 S.W.2d 205; and Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825. These cases involve financial statements and other instruments designed to obtain credit and contain express agreements to pay accounts, transactions and obligations in a definite county. In each of the cases the basic action flowed from the primary written agreement and not from a collateral contract, as in this case. While these cases express the correct law as applied to the particular facts evidenced therein, we cannot agree with appellant that they are determinative of the factual situation revealed by this record.

The correct answer to the problem here presented necessarily depends upon the proper construction to be placed upon the written agreements relied upon by appellant. Can it be said that at the time appellee signed the various agreements that it was the mutual intent of both parties that any and all obligations, whether flowing from the written instrument itself, or otherwise, would be payable in Dallas County, Texas? To arrive at the true intent of the parties to these agreements we must review the instruments as a whole and not merely isolated portions thereof. In the recent case of Ervay, Inc. v. Wood, Civ.App., 373 S.W.2d 380, wr. ref. n. r. e., we reiterated what we had previously said in Davis v. Andrews, Civ.App., 361 S.W.2d 419, err. ref. n. r. e., relative to the “four corners rule” which says that the intention of the parties is to be gathered from the instrument as a whole and not from isolated parts thereof. We also directed attention to the rule of construction which directs a reviewing court to review the agreement as of the time it was made and not in the light of subsequent events. Fleming Oil Co. v. Anco Gas Corp., Civ.App., 217 S.W.2d 29; Burtis v. Butler Bros, Civ.App, 228 S.W.2d 938.

Applying these cardinal rules of construction to the various instruments before us we are impelled to the conclusion that at the time each of these instruments was executed by appellee it was the intent of both parties that appellee was to be obligated only in the event of certain contingencies which could occur at the election of appellant. Moreover, we are of the opinion that the parties intended that the obligations recited therein were to apply solely to the matters relating to guaranty only and did not, as contended by appellant,, apply to any other matters or obligations of' whatever kind or character which might come into existence in the future. A careful reading of the written instrument relied, upon by appellant demonstrates that there is no obligation fixed on appellee unless-, and until appellant has elected to compel’, appellee to evidence his obligation by delivering a written guarantee agreement or by-endorsement of the finance notes referred', to in such agreement. There is nothing in-, this record showing that such election has-, been made. Absent such conditions precedent there is no obligation on the part of' appellee to appellant concerning the guaranty of customer’s obligation.

To uphold appellant’s contention, that the provisions of Paragraph 9 to the-effect that “any other matters with Burrus-. Feed Mills are to be payable in Dallas, Texas, at the office of Burrus Feed Mills” apply to other obligations than those expressed and contemplated by the parties at. the time they executed the instrument, and' especially to an open account such as that: sued upon by appellant here, would do violence to the very basic law, often expressed’ by our Supreme Court, that a defendant: shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal' doubt between the exception and the rule is. to be resolved in favor of the rule. The-application of the exception must clearly appear. Venue may never be sustained by implication or by strained construction. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969; Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; 43-B Tex.Jur, Sec. 14, pp. 124, 125, and cases therein cited.

To say that appellee, by signing the various guaranty instruments intended to and ■did contract and agree to pay appellant in Dallas County for any and all goods, wares • and merchandise which he might thereafter purchase from appellant, would be giving a ■-strained construction indeed to such agreements. We believe that the trial court was •correct in holding, as a matter of law, that the instruments relied upon by appellant ■demonstrated affirmatively that no obligation existed on the part of appellee to pay -the verified accounts sued upon in this case in Dallas County.

The judgment of the trial court is affirmed.

Affirmed.

      . The action was also upon a written guaranty but this phase of the case was not prosecuted at the plea of privilege hearing and becomes immaterial upon this appeal.

      . Subdivision 5, Art. 1995, V.A.C.S.:
      “Contract in writing. — If a person has contracted in writing to perform an obligation if a particular county, expressly naming sucb county, or a definite place therein, by such writing, suit upon or by reason, of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

      . (Contract)
      “EXHIBIT ‘J’
      Date 3-8-62
      To: CREDIT DEPARTMENT BURRUS FEED MUXS POST OFFICE BOX 1688 FORT WORTH, TEXAS Gentlemen:
      We, the undersigned dealer, are attaching hereto an application for poultry finance executed by:
      George Gaas Rt 4 Caldwell, Texas (applicant) (address)
      Said applicant wants financing on the following:
      Type of operation: Bayers Feeding program: Complete Items for which financing requested: 1500 Day Old
      Chicks, Feed.
      The undersigned has checked the equipment, facilities and also the experience of said applicant and believes them to be sufficient.
      Based on appraisal of said applicant through our acquaintance with him and the preliminary investigation through others who are acquainted with said applicant, it is the opinion of the undersigned dealer that said applicant is sound, both morally and financially, and meets the requirements of BURRUS FEED MXLBS for poultry finance. If this application is approved, the undersigned dealer will exert every effort in seeing that the applicant fulfills all obligations in strict accordance with the terms of the BURRUS FEED MILLS standard finance agreement.
      We agree to the following if such application is approved:
      1. That all of the birds above referred to are to be on such finance program until all debt owing BURRUS FEED-MILLS and secured by such birds has been paid in full.
      2. To obtain a demand promissory note from the applicant covering each delivery approved for financing as reflected on the applicant’s finance agreement promptly as each delivery is made and to forward such notes immediately to BURRUS FEED MILLS at the address indicated for it. All such notes shall bear interest at tbe rate of 6% per annum from the date thereof.
      3. To assist the applicant in marketing all birds, or eggs, at the best market price obtainable until all indebtedness of said applicant to BURRUS FEED-MILLS is paid in full.
      4. To be available for consultation with the applicant, on a call basis and at no expense to the applicant, from time to-time'to assist him with management of said flock.

        5. To keep a running statement of the applicant’s account and to alert him as his credit limit is being approached. Said applicant and the undersigned dealer each understands that under no circumstances will such credit limit be exceeded.
      6. To fill out upon delivery of such birds a promissory note for insurance for the length of time such birds are to be financed and to forward such note properly executed by the applicant to BURRUS REED MILLS at the address above indicated.
      7. To secure a properly executed chattel mortgage from the applicant on all of his birds at the time that said applicant executes his finance agreement with BURRUS REED MILLS and to mail said chattel mortgage to BURRUS REED MILLS at the address above indicated.
      ■8. To be responsible for the collection of all finance notes taken from said applicant; further, the undersigned dealer guarantees collection, to the extent of 50%, of all finance notes, including principal and interest, taken from said grower under the finance agreement, such guarantee to be evidenced by a guaranty agreement and/or by endorsement of all said applicant’s finance notes, as BURRUS REED MILLS may elect.
      9. Any obligations arising under this agreement of any guarantee signed by the dealer, or any other matters with BURRUS REED MILLS are to be payable in Dallas, Texas, at the office of BURRUS REED MILLS.
      The undersigned dealer acknowledges that he is fully acquainted with all of the terms and provisions of the finance program of BURRUS REED MILLS, and accepts the same to the extent applicable to him.
      By Hein Reeders Supply Pete Hein /s/ (dealer’s name)
      I concur in the foregoing recommendation that financing be extended to the within named applicant, and agree that all commissions credited to my account on feed sold to said applicant, if such application be approved, may be deducted from my commission account if the said applicant fails to pay to BUR-RUS REED MILLS all sums advanced to said applicant, as said sums are due and payable.
      S. E. Simmons, Jr, /s/ (territory manager)”


author: GRISSOM, Chief Justice.

text:
    LONE STAR GAS COMPANY, Appellant, v. H. G. VEAL, Appellee.
    No. 3864.
    Court of Civil Appeals of Texas. Eastland.
    April 20, 1964.
    Rehearing Denied May 1, 1964.

      Mays, Leonard, Moore & Dickson, Sweetwater, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellant.
    Bates & Brock; Warner F. Brock, Houston, Ratliff & McCloud, Colorado City, for appellee.
   GRISSOM, Chief Justice.

In a trial to the court, H. G. Veal obtained a judgment against the Lone Star Gas Company for damages caused by an explosion of gas which escaped from Veal’s yard line. The gas company appealed.

In September, 1953, Mr.- Veal laid 53 feet of new black steel pipe from the gas company’s main at a street, or parkway, across his yard to the company’s meter near plaintiff’s building. Lone Star determined the location of its meter and the point.where Veal’s yard line was connected with Lone Star’s main line at the parkway. The yard line was tested and approved by the City plumbing inspector. Lone Star then made its connections with Veal’s yard line at its main line in the parkway and at its meter near Veal’s building.

In November, 1957, Mr. Veal told Lone Star that he smelled gas in his building. Lone Star gave its employees instructions to check for leaks and they checked for gas leaks inside Veal’s building and outside the building on the outlet side of its meter. The check made showed there was no gas escaping from the outlet side of its meter. They did not check any other pipes owned by Veal. They advised Veal that gas was not escaping, that the odor probably came from materials used in his shoe repair business. Lone Star did not test that part of Veal’s line which ran between the company’s meter and its main line at the parkway. The test made could not have disclosed a leak in the yard line between said points. Thereafter, each month, Lone Star employees read the gas meter and some of its employees were occasionally in Veal’s building.

In July, 1960, Lone Star, as a matter of routine policy and not because of any defects therein, replaced the old meter. When the new meter was installed, Lone Star turned off all appliances inside Veal’s building and made a five minute meter test of the same kind and scope that it had made ,in 1957, that is, it tested the outlet pipes and inside Veal’s building, but it did not test that part of Veal’s yard line between its meter and its main line at the parkway. There was evidence to the effect that there were then holes in the yard line from which gas was then escaping.

Lone Star kept a record entitled “Summary of Town Plant Unaccounted-For Gas” which showed there was more gas measured through the city gate meter than was sold to its customers. It was stipulated that one factor showing that difference was the leakage of gas in all the pipes between the city gate meter and the meters of its customers. In Colorado City Lone Star had a program for checking its own lines for leaks but it did not inspect or test any customer’s yard line unless its meter was located at its main line, it saw evidence of leaks in a yard line or a customer requested inspection of his yard line.

On April 4, 1961, there was an explosion of gas in the basement of Veal’s building. The gas that exploded came from corrosion holes in Veal’s yard line, which was used by Lone Star to deliver its gas to Veal at its meter adjoining his building. It had not passed through Lone Star’s meter and the gas that exploded was still owned by Lone Star. The holes from which the gas escaped were scattered along 20 feet of the yard line. The gas entered the basement from such corrosion holes in the yard line through an opening in the east wall of the basement.

In a trial to the court, the court found that Veal’s yard line was exclusively used by Lone Star to transport its gas to Veal; that said yard line was under the exclusive control of Lone Star; that the yard line served but one purpose, that is, to carry Lone Star’s gas to its meter where it was delivered and sold to Veal; that Veal had no right to interfere with the yard line; that Veal could not control the flow of gas into the yard line because Lone Star had not provided him means to shut it off; that Lone Star, by the use of means available, could have discovered in July, 1960, that gas was escaping from the yard line. The court further found that Lone Star owed Veal the duty to inspect the yard line for leaks; that in July, 1960, Lone Star could have, by use of means available, discovered that gas was escaping from the yard line and that Lone Star then had the duty to test the service line for leaks; that before the explosion Lone Star knew, or should have known, that the yard line would develop gas leaks within two to five years; that the yard line should have been replaced every two or three years, because at that location a line will develop leaks every two or three years, and that holes had existed in the yard line and gas had escaped therefrom for more than a year before the explosion. The court found that from November, 1957 to the time of the explosion, Veal relied upon the assurance of Lone Star that the odor in his building was not caused by escaping natural gas but that it came from materials used in his business.

Although Lone Star presents 137 points of error it summarizes its contentions substantially as follows: (1) Lone Star is not liable because it had no duty to inspect Veal’s yard line; (2) it was not guilty of any act of negligence found by the court; (3) appellee was contributorily negligent and (4) appellant is not liable because under its contract with Veal it is not responsible for appellee’s yard line.

Appellee contends that, since the yard line was used solely and exclusively by Lone Star to transport its gas to its meter where the gas was measured, delivered and sold to Veal, Lone Star had a duty to inspect the yard line, the same as if it owned it. That contention is stated to be the law in 26 A.L.R.2d 141. Texas Public Service Company v. Mireles, Tex.Civ.App., 149 S.W.2d 298, 302, (Writ Dis. C.J.), cites with approval the holding in the West Virginia case of Groff v. Charleston-Dunbar Natural Gas Company, 110 W. Va. 54, 156 S.E. 881, that mere ownership of such a pipe line is not controlling, and, where a gas company exclusively uses a line, not its own, to transport its gas to consumers it is charged with the duty of maintaining and inspecting the pipe line. In Houston Gas & Fuel Co. v. Perry, Tex.Civ.App., 55 S.W.2d 901, affirmed 127 Tex. 102, 91 S.W.2d 1052, the court recognized the duty of a gas company to inspect pipes of another under its control. The Texas courts apparently recognize the duty of a gas company to inspect gas lines of its customers which it uses exclusively to contain and convey its gas to its meter, where it is sold and delivered to its customers. Certainly, that is the rule in most jurisdictions.

In Washington Gas Light Company v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712, lack of ownership of a gas box was first asserted as showing the absence of a duty to inspect. The court said that the object of the gas company was to sell gas to its consumers, which it could not without connections between its street mains and abutting dwellings and, when this is done, its highly inflammable product flows from its mains into such dwellings. It said that a gas company must have necessarily contemplated that such connections with its mains as are, from their very nature, incidental to and inseparably connected with the sale and consumption of its gas, should be a part of the apparatus of the gas company, and be under its control, rather than under the control of the consumer. It said, “Indeed, the control by the gas company of the connection from its mains to the point of use is as absolutely necessary to make it possible for such company to carry out the very purpose of its charter as arc the retorts and mains. * * * Nor do we think that this duty was affected by the circumstances that the cost of the labor and materials used in the construction of the connection and gas box was paid by an occupant or owner of property who desired to be furnished with gas. As the service pipe and stopcock was a part of the apparatus of the company, and was used for the purpose of its business, it is entirely immaterial who paid the cost, or might, in law, on the cessation of the use of the service pipe and gas box by the company, be regarded as the owner of the mere materials.”

An ordinance of Colorado City provides that “Under no condition shall plumbers, fitters or other parties disconnect any meter, connect or disturb piping on inlet side of meter after once set except that a Plumber may close the gas cut off for the purpose of making repairs * (Emphasis ours.) There was evidence that means were not available to Veal to cut off the gas that entered his yard line from the company’s main line. The yard line, although owned by Veal, was actually as much a part of the apparatus of Lone Star in transporting and selling its gas as was Lone Star’s main or meter; without the yard line, Lone Star could not deliver and sell gas to Veal. As held in the cases mentioned, a gas company’s duty to inspect a yard line is not determined by its ownership.

In Mattson v. Central Electric & Gas Co., 8 Cir., 174 F.2d 215, the trial court held, as a matter of law, that a gas company in the absence of actual notice of a defect in the consumer’s supply line between the gas company’s main and its meter, was not liable for the escape of its gas from said line. In reversing the judgment of the trial court, based on that theory of the law, the Circuit Court said:

“The gas company in the Julian case [Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31] contended, as in the instant case, that it was not the owner of the pipes at the point where the gas escaped, and hence, was not charged with the responsibility of inspection nor liable for injuries caused by faulty materials which it did not own.
* * * * * *
“* * * The natural gas which the Company was transmitting through this pipe was of highly dangerous character and it owed a duty to the public to exercise a degree of care commensurate with the danger involved in the transaction of its business. It knew when this gas line was laid and it was its duty to know what the probable life of the gas pipe would be in the soil where it was laid. While the defendant did not have actual notice that gas was escaping from this perforated pipe, it did know that gas would escape from a perforated pipe and it was charged with knowledge, at least the jury might have so found, that this pipe had probably become perforated. * * * Under the circumstances disclosed by the record the jury might properly have charged the Company with constructive notice and if so that notice is just as effective as actual notice. While the foundation of liability for negligence is knowledge, in law an opportunity by the exercise of reasonable diligence to acquire knowledge is equivalent to knowledge, and one under a duty to use care for which knowledge is necessary cannot avoid liability because of voluntary ignorance. * * *
ifc ‡ ‡ íjí :Jc
“Under the Nebraska decisions the Gas Company could not delegate the duty it owed to the public to exercise proper care to maintain its gas system in a safe condition, but it had the continuing duty to exercise proper care to prevent injury from escaping gas. Hence, the mere fact that the service pipe was paid for and possibly was the property of the consumer, did not shift the duty of exercising proper care. The gas in the service pipe, as before noted, was that of the defendant, and as long as it remained its property it was under the duty of using proper care to protect the public from injury caused by the dangerous propensities of that property. A proper regard for the safety of the public would seem to forbid the owner of such a dangerous agency to avoid liability for damage by simply housing such property in a container belonging to some one else, particularly when the owner of such dangerous agency knows, or is charged with knowledge, that the housing or container facilities are in a decayed, dilapidated and deteriorated condition. The agents and employees of the Company are presumably skilled in the business of their employer. They knew, or were presumed to know, the probable life or durability of the materials used, and where the pipes have been in use as long as the pipes in the instant case, the jury might reasonably find that the Company was charged with notice of their condition.”

The Mattson case is especially pertinent here on its holding that the gas company had a duty to know the probable life of the yard line in the soil where it was laid. Lone Star knew when the yard line was laid and that in some locations in Colorado City such pipes would probably last only three to five years.

In Weiss v. Gas Service Co., 170 Kan. 43, 223 P.2d 702, 26 A.L.R.2d 129, the Supreme Court of Kansas said:

“We think it well settled by our decisions that when a gas company connects service lines to its mains it has a duty to know that the service lines are capable of carrying the gas. This is upon the ground and for the reason that gas is such a dangerous thing when it escapes from service lines that due care under the situation requires such an inspection irrespective of whether the gas company, or some other person, owns such lines.”

In Manning v. St. Paul Gaslight Company, 129 Minn. 55, 151 N.W. 423, 424, L.R.A.1915E, 1022, it was shown, as it was in this case, that the consumer owned the gas pipe from his lot line to the company’s meter. The Supreme Court of Minnesota said:

“The gas belongs to defendant until sold and delivered through its meter in the consumer’s building, and therefore defendant should be responsible for its care until it is so measured and delivered. We are unable to find any sound basis for making defendant’s care and vigilance to prevent the escape of its dangerous product any less between the meter and the lot line, than between the lot line and the retort where manufactured.”

In Fabbrizi v. Village of Hibbing, 242 Minn. 464, 66 N.W.2d 7, under a fact situation comparable to that of the present case, where gas escaped from a leak in the consumer’s service line, the court said:

“The fact that a gas company did not install the service lines or own them has been held not to relieve it from liability for injuries caused by defects in such lines where the company assumed or exercised control over them. “The service line involved here served but one purpose and that was to carry defendant’s gas to the meter. Under the evidence, plaintiff had no right to interfere with the line or to permit a plumber to do so without first obtaining permission from the defendant. There was no way in which plaintiff could control the flow of gas in the line as defendant had provided no shut-off valve or other means of control. Defendant, while using said service line for the transmission of its gas to the meter, was in exclusive control of the line irrespective of ownership. Having been given the right of exclusive control of the line, it owed the corresponding duty of exercising reasonable care to keep it in a proper state of repair so as to prevent the escape of gas, a highly dangerous and destructive product when allowed to get beyond control.”

Applying that decision to the instaht case, the yard line served but one purpose, to carry Lone Star’s gas to its meter where it was sold and delivered to Veal. Veal had no right to interfere with it. Veal could not control the flow of gas to the yard line. Under the circumstances, appellant owed appellee the duty to inspect the yard line.

In Daugherty v. Nebraska Natural Gas Company, 173 Neb. 30, 112 N.W.2d 790, the gas company contended that it did not own the line where the defect was found; that it belonged to its customer and, therefore, the gas company owed no duty to its customer to maintain the yard line. The Supreme Court of Nebraska said that the mere fact that the service pipe was owned by the consumer did not shift the duty of exercising proper care; that the gas in the yard line belonged to the gas company and, as long as it belonged to the gas company, it had the duty of using proper care to protect the public from injury caused by the dangerous propensities of its property and that proper regard for the safety of others forbade its owner from avoiding liability by simply housing the gas in a container belonging to someone else, when the gas company was charged with knowledge that the container was in a decayed condition.

In Northwestern Ohio Natural Gas Co. v. First Congregational Church, 126 Ohio St. 140, 184 N.E. 512, the Supreme Court of Ohio said:

“When a gas company has the exclusive use of a pipe line not its own to conduct gas to a consumer, the company assumes the duty of reasonable inspection and maintenance of the line while it is so used.”

The same court made the same ruling in Hamden Lodge No. 517, I.O.O.F. v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246.

In Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31, the gas company contended that because it did not own the service pipe from which the gas escaped it had no duty to inspect it and that it was not liable for injuries caused by faulty material which it did r.ot own. The Supreme Court of Oklahoma held the gas company liable because it had control of the leaky pipes in the yard line.

In Stenger v. Hope Natural Gas Company, 141 W.Va. 347, 90 S.E.2d 261, the Supreme Court of West Virginia said:

“The defendant having the exclusive use of the gas line in conducting gas to the Stenger residence, assumed the duty of reasonable inspection and maintenance of the line while it was so used.”

In Commerce Insurance Company v. Merrill Gas Co., 271 Wis. 159, 72 N.W.2d 771, the gas company contended that it had no duty to maintain the gas apparatus inside the curb line, because it was installed by the consumer at his expense upon his own property and he owned it. The Supreme Court of Wisconsin said that it did not follow that the gas company had not assumed exclusive control of the pipe, or that it was not liable for negligence in regard to its assumed exclusive control of such a pipe line.

In Shaw v. Wisconsin Power & Light Company, 256 Wis. 176, 40 N.W.2d 498, 13 A.L.R.2d 1390, the same court held, in effect, that a gas company has the duty to keep the pipe in which its gas is stored in good condition.

The gas belongs to the gas company until it is sold and delivered to the consumer at the company’s meter, 38 C.J.S. Gas § 40, page 730; Sutcliffe v. Fort Dodge Gas & Electric Co., 218 Iowa 1386, 257 N.W. 406.

Under the facts found by the trial court, which, we think, are amply supported by the evidence, it properly concluded that appellant had the duty to inspect the yard line. We think the court did not err in holding that appellant was guilty of negligence in failing to inspect the yard line and that same was a proximate cause of appellee’s damages. The court had a right to conclude that if Lone Star had inspected the line during the year before the explosion that it would have discovered the leaks which caused it.

Appellant relies chiefly upon our decision in Henderson v. City of Cross Plains, Tex.Civ.App., 235 S.W.2d 936, (WR), to support its contention that it had no duty to inspect appellee’s yard line. Our decision here is in accord with that decision. The gas that escaped in the Henderson case did not belong to the gas company. It had already been metered, sold and delivered to the customer. The lines from which that gas escaped were on the outlet side of the meter and not under the control of the gas company. Lone Star Gas Company v. Striplin, Tex.Civ.App., 342 S.W.2d 359, is also distinguishable. There, the escape of gas was caused by a third person running into a meter a short time before the explosion.

Whether Veal was contributorily negligent was, at most, a question of fact which the court decided in his favor. The court had the right to conclude that Lone Star’s employees were experts, specialists, in the detection of gas leaks and that Veal was not. In 1957, Veal told Lone Star that he smelled gas in his building; Lone Star’s employees investigated for leaks and told him that he was mistaken, that the odor came from materials Veal used in his business. There was evidence that Veal relied upon that assurance and for that reason he did not thereafter complain to Lone Star of such odor. Neither had actual knowledge that gas was escaping from the yard line. It is more reasonable to conclude that the gas company’s employees should- have known about the escaping gas than that Veal should have known thereof. Contributory negligence is usually a question of fact. It was certainly not conclusively established here.

Construing the gas company’s “application for gas service”, which Veal was required to sign to obtain gas, most strongly against its author, as we are required to do, it did not include the yard line in question. However, if it did, the provision amounted to an attempt by the public utility to exempt itself from liability for its own negligence, which, is contrary to public policy and , unenforceable. 13 Tex.Jur. 385; 175 A.L.R. 8, 39; 38 C.J.S. Gas § 42, pages 731, 735; Oklahoma Natural Gas Company v. Appel, (Sup.Ct.Okl.), 266 P.2d 442; Fairfax Gas & Supply Co. v. Hadary, 4 Cir., 151 F.2d 939 ; 24 Am.Jur. (Pocket Part 1963), Sec. 23, p. 109.

The court found that appellant was negligent in failing to inspect the yard line and that such negligence was a proximate cause of appellee’s damages. We approve those findings. The court had a right to conclude from the evidence that gas was escaping from the yard line for more than a year before the explosion; that the gas company should have known thereof; that if it had inspected the line during the year before the explosion it would have discov-ered the leaks. The evidence supports the findings that are essential to support the judgment. We have considered all of appellant’s points. They are overruled. The judgment is affirmed.


author: CHADICIC, Chief Justice.

text:
    Herschel E. LOVE, Appellant, v. Gertrude A. McGEE et al., Appellees.
    No. 7542.
    Court of Civil Appeals of Texas. Texarkana.
    March 3, 1964.
    Rehearing Denied April 28, 1964.
    T. D. Wells, Paris, for appellant.
    Hardy Moore, Moore & Lipscomb, Paris, for Gertrude A. McGee, Carl N. McGee, Jr., Peggy Joyce Maness and husband, Thomas W. Maness.
    No appearance for Lela Oakes Sorrells and husband, Sam Sorrells.
   CHADICIC, Chief Justice.

This litigation was originated by a statutory trespass to try title action. The judgment is modified and affirmed.

As the trial commenced, the defendant, Herschel E. Love, the appellant here, filed the following motion authorized by Rule 266, Vernon’s Ann.Texas Rules of Civil Procedure, to-wit:

“Now comes Herschel E. Love, the defendant in the above entitled and numbered cause, and before the trial commences admits that the plaintiffs are entitled to recover as set out in their petition except so far as he may be defended in whole or in part, by the allegations of the answers constituting good defenses which will be established on the trial herein.
“WHEREFORE, premises considered, defendant prays that under the provisions of Rule 266 he be allowed to open and close this case as a plaintiff.”

The motion was granted and trial was conducted accordingly.

When the Rule 266 motion was allowed, defendant Love admitted the plaintiffs and appellees here, Gertrude A. McGee, her son Carl N. McGee, Jr., and daughter, Peggy Joyce Maness, had' a prima facie case and were entitled to judgment for title and possession of the land described in their petition unless he, defendant Love, disproved their title by establishing the allegations of his answer constituting good defenses. Smith v. Traders’ Nat. Bank, 74 Tex. 541, 12 S.W. 221; Hancock v. Frost Lumber Industries, Inc., of Texas, Tex.Civ.App., 182 S.W.2d 747; 23 Texas Law Review 293; Trice et ux. v. Stamford Builders Supply, Tex.Civ.App., 248 S.W.2d 213; 41 Tex.Juris. 755. However, the issues joined by the pleadings, more specifically the “good defenses” set out in his answer that defendant Love undertook the burden of proving, are in dispute and the disagreement must be resolved. The plaintiff’s petition is cast in statutory form and pleads additionally the provisions of -the five year (Art. 5509), ten year (Art. 5510), twenty-five year (Art. 5519) statutes of limitation and the provisions of Art. 5519a. Appellant Love discusses several of his points of error on the assumption that his answer contained a plea of not guilty, as the plea is understood in trespass to try title cases, and that he plead the five, ten and twenty-five year statutes of limitation.

The exact language of the answer relied upon to constitute a plea of not guilty is this:

“Now comes the defendant, Herschel E. Love, and, for answer says that as to the land in the plaintiff’s petition described in their original petition herein, other than that to which this defendant hereinafter pleads not guilty, and now disclaims all right, title and claim in and to all of the land sued for by the plaintiffs as described in their petition save and except the following portion of said land, to-wit

The quoted allegation is followed by a description of a strip of land four feet wide and 145 feet in length, hereafter referred to as a strip or a four foot strip, located on the east side of and contained within the bounds of the lot described in the plaintiffs’ petition. The strip constitutes the overlap in description of two adjacent lots, being also the westernmost four feet of a 56 by 145 foot lot described in the title deed under which defendant Love claims.

The defendant’s answer should state grounds of defense in plain and concise language. Rule 45, V.A.T.R.C.P. It is specifically directed by Rule 788 that in a not guilty plea the defendant “ * * * shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff * * * When the words in the clause, “other than that to which this defendant hereinafter pleads not guilty” are considered objectively, and in context, they do not convey the thought or meaning that defendant Love is thereby and at that time and place saying he is not guilty of the injury the plaintiffs charge against him. The clause indicates that it was the intention of the pleader as he wrote it to afterwards set out and interpose the not guilty plea in the answer, but the mention of a present intention'to do só at a later time cannot be fairly construed as accomplishing a present tender of the plea. The subdivision of the pleadings where this clause is found was amended by interlineation just prior to the time introduction of evidence began, and failure to set out the not guilty plea by in-terlineation at some other point in the answer is probably due to ’the diversions of attention associated -with this phase of the trial. None the less, the defendant’s answer presented by the record in this court does not contain á plea of not guilty.

Further analyses make it plain that the answer disclaimed as to all land described in the plaintiff’s petition except the four foot strip and plead the five year statute of limitation as a bar to the plaintiffs’ recovery of title to the strip. Also, sufficiently plead were the provisions of Article 5519a alleging the facts of the case raised the presumption that title to the strip had been acquired by defendant Love. It is doubtful that the ten year and twenty-five year limitation statutes are plead, but no decision is necessary for reasons that become apparent when the evidence is reviewed hereafter.

The issues joined by the pleadings, together with the effect of the Rule 266 motion, place the parties in confrontation, with title to the lot described in plaintiffs’' petition prima facie vested in the plaintiffs, but with recovery of the four foot strip subject to both the bar of the five year limitation of actions (Art. 5509) statute and the provisions of Art. 5519a, and the defendant burdened with the task of establishing the factual basis of these defenses by a preponderance of the evidence.

Defendant Love introduced the muni-ments in the chain of title to his lot emanating from a common source, and proof of the payment of certain taxes. All taxes payable tó the Lamar County Tax Collector were paid before delinquency as far back as 1919, and payment was shown of those accruing to the City of Paris and the Paris Independent School District from 1947 to trial date. No evidence was produced, however, that defendant Love, or his predecessors in title, had actual possession of the four foot strip at any time after Gertrude A. McGee and her .now deceased husband acquired title in 1939 to the lot adjoining the strip on the west. Mrs. McGee testified to fencing the strip in with her lot, occupying and using the area as a driveway to her garage in the belief that it was a part of her lot. This occupancy and use was open and obvious, in 1939 and continued by her and her tenants until she was ejected therefrom a short time before this suit was filed in 1962.

But for reasons next to be mentioned it is a - settled principle that defendant Love as an adverse claimant would be considered in law to have had constructive possession of all the land embraced within the description of his lot in the registered deed under which he claims, although he was in actual possession of only a part of the lot described. Adverse Possession, 2 Tex. Juris.2d 303, Sec. 176. The constructive possession principle does not operate in this case because adverse possession of the four foot strip is likewise claimed by the plaintiffs. The governing rule is stated in 2 Tex. Juris. 305, to-wit:

“The principle of constructive possession may not be invoked by one adverse claimant against another such claimant, the conclusion being in a contest between claimants that neither is entitled to assert title by virtue of constructive possession, and that each' is confined to a recovery of the land that he has had in actual possession.”

See Cook’s Hereford Cattle Co. v. Barnhart, Tex.Civ.App., 147 S.W. 662; Woods v. Hull, 90 Tex. 228, 38 S.W. 165; Peden v. Crenshaw, 98 Tex. 365, 84 S.W. 362; Morris v. Jacks, Tex.Civ.App., 96 S.W. 637, E.R., Chittim v. Auld, Tex.Civ.App., 219 S.W.2d 702, N.R.E.

The previous statement of the nature of the evidence shows no facts were adduced discharging defendant Love’s burden of proving actual possession of the strip under the five year statute. See Land v. Turner, Tex., 377 S.W.2d 181, where actual possession is defined to be:

“ * * * speaking generally, that one is in possession of land when he is in occupation thereof, with the intention, actually realized, of excluding occupation by others, or when, although not in actual occupation, he claims the right of exclusive occupation, and no person is in occupation opposing his claim.”

The second defense, that is, the Art. 5519a defense, plead by the defendant Love is not supported by evidence either. Two steps were required of defendant Love to establish a prima facie title under Art. 5519a. First defendant Love had the burden of proving that the plaintiffs as holders of the apparent record title to the four foot strip had not exercised dominion over it or paid its taxes before delinquency one or more years in the twenty-five years next preceding the filing of the suit; and second, that he, defendant Love, and those whose title he owns, openly exercised dominion over and asserted claim to the strip and paid taxes thereon annually before delinquency for twenty-five years preceding the filing of the suit. Adverse Possession, 2 Tex.Jur. (2) 373, Sec. 224, and authorities there cited. The evidence, previously outlined, was wholly insufficient to discharge defendant Love’s burden of proof under this particular defense.

All of appellant Love’s points of error have been carefully examined and no error is found affecting the judgment rendered for plaintiffs Gertrude A. McGee, Carl N. McGee, Jr., and Peggy' Joyce Maness, against defendant Love, and as to them the judgment is affirmed. The pleadings and proof show that appellant Love was entitled to recover nominal damages and the costs of this action from Lela Oakes Sor-rells and her husband, Sam Sorrells, as the result of the breach of the warranty of title contained in their deed to him of the lot out of which is taken the four foot strip awarded the appellees. It is shown as a matter of law that title failed to the strip. Accordingly, under authority of Lawless v. Evans, 4 Willson, Civ.Cas.Ct.App. § 26, 14 S.W. 1019, 1020, the judgment of the trial court in this respect is reversed and appellant Love is awarded judgment over against the Sorrells for $25.00 nominal damage and all costs of this action which Love may be compelled to pay. The judgment is affirmed as modified.

      . Failure to interpose a not guilty plea is urged by appellees as grounds for affirmance on authority of Foust v. Jones, Tex.Civ.App., 90 S.W.2d 665, N.W.H., where it is said: “In a trespass to try title suit in this state, the issues tendered by the plaintiff’s pleading are joined by a plea of not guilty. In the absence of such plea no proof is required on the part of plaintiff to establish the allegations of his petition.”


author: DIXON, Chief Justice.

text:
    ANDERSON-DUNHAM, INC., Appellant, v. LEE RUBBER & TIRE CORPORATION, Appellee.
    No. 16321.
    Court of Civil Appeals of Texas. Dallas.
    March 27, 1964.
    Rehearing Denied April 24, 1964.

      Allen, Clements & Kraus, W. R. Allen, Richardson, for appellant.
    Scurry, Scurry & Hodges, Richard H. Hodges, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Lee Rubber & Tire Corporation, hereinafter called Lee, sued appellant Anderson-Dunham, Inc., for alleged conversion of a large number of truck tires, on which Lee claims a chattel mortgage lien superior to a chattel mortgage lien claimed by appellant. Seago Contracting Company, mortgagor, hereinafter called Seago, was also made a party defendant, but the cause as to Seago was severed from the cause as to Anderson-Dunham.

After a trial before the court without a jury judgment was rendered for Lee for $9,132.62, the balance due by Seago, to whom the tires had been sold by Lee.

On three different occasions Lee sold tires to Seago: 200 tires on April 4, 1959; 118 tires on August 25, 1959; and 60 tires on October 6, 1959, a total of 378 tires. On each occasion Lee took a chattel mortgage to secure payment and filed its mortgage for registration.

On July 28, 1959 Anderson-Dunham sold Seago 25 dump trailers and the 200 tires with which the trailers were equipped. Anderson-Dunham took a chattel mortgage to secure payment and filed its mortgage for registration. This mortgage provided that it should cover “all attachments, replacements, substitutions and additions” referred to as equipment.

Seago defaulted in its payments due Anderson-Dunham with the result that on or about June 22, 1960 Anderson-Dunham repossessed the trailers together with the 200 tires with which the trailers were then equipped.

Soon after learning of the above repossession Lee informed Anderson-Dunham that the tires were subject to prior mortgages held by Lee and demanded possession of the tires. Anderson-Dunham refused the demand, claiming that its mortgage was superior. On June 29, 1960 this suit was filed.

Lee’s first mortgage, that of April 4, 1959, does not state the generic name of property to be covered. It refers to “Branch Invoice #8206.” In a space for “Serial Number of Merchandise” there is typed “See ‘Schedule A’ on reverse side of this contract.” On the reverse side is this: “Schedule ‘A’: 1000.20 12 PLY S.D. HWY —RAYON.” Following the above recital is a list of 200 numbers. Nowhere in the mortgage, front or back, is the word “tires” to be found.

Lee’s second mortgage, that of August 25, 1959, is similar in general to the first mortgage. It refers to Invoice No. 8206. Nowhere in it is the word “tires” to be found.

Lee’s third mortgage, that of October 6, 1959, is similar in general to the other two mortgages, but it differs in one important particular. On its reverse side under the heading “Schedule A” there is the following: “60-1000x20-12 PR SUPER DELUXE HWY NYLON TIRES" (Emphasis ours.)

Certified copies of Lee’s three mortgages were filed with the court papers in this cause and are referred to in Lee’s First Amended Petition “as though same were fully set forth here.”

In its first and second points on appeal appellant says that the trial court erred in overruling its Special Exceptions Nos. 1 and 2, which attack the sufficiency of the description of the mortgaged property in Lee’s first and second mortgages.

In its first counter point Lee asserts that (1) the descriptions are sufficient on their face and (2) if they are ambiguous, the record is such as to excite inquiry and it was the duty of Anderson-Dunham to pursue the inquiry which would have cleared up the ambiguity.

We are of the opinion that appellant’s first two points on appeal should be sustained. The descriptions in the mortgages of April 4, 1959 and August 25, 1959 are not in themselves sufficient. It is true that Lee’s pleadings are to the effect that the first two mortgages cover tires. But when we examine the mortgages themselves we find that they do not mention the word “tires.” It is the mortgages themselves, made part of the pleadings as exhibits by reference, not the allegations in the pleadings, which'must control. Pyron v. Grinder, 25 Tex.Supp. 159, 160; Cawley v. Security State Bank & Trust Co., Tex.Civ.App., 126 S.W.2d 715; Paul v. Houston Oil Co., Tex.Civ.App., 211 S.W.2d 345; De-Muth v. Flossie Head (opinion dated March 13, 1964, not yet reported).

' We do riot agree with' Lee’s argument that if the mortgages be considered ambiguous, the record is such as to incite an inquiry by Anderson-Dunham which inquiry would have cleared up the ambiguity.

' Iii the first place Lee did not plead any ambiguity, but in its pleading relied on the wording of the mortgages themselves. It did not plead that an inquiry would have disclosed a sufficient description of the property, nor did it, when confronted with .appellant’s exceptions, ask leave to amend its pleadings, Ross v. Burleson, Tex.Civ.App., 274 S.W.2d 105;. Jones v. Dumas Dev. Co., Tex.Civ.App., 229 S.W.2d 936; C. A. Bryant Co. v. Hamlin Ind. School District, Tex.Civ.App., 18 S.W.2d 750; Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530; 13 Tex.Jur.2d 648.

In the second place the rule of law on which Lee relies is not applicable here. It is true that, as between a mortgagee and third persons, if a- defective description in a chattel mortgage suggests an inquiry which, if pursued, will disclose the property intended to be covered by the mortgage, the description will be adjudged sufficient. But to make the rule applicable it is necessary that (1) the clue to the proper inquiry must be such as is suggested by the mortgage itself, and (2) the inquiry must be directed to others than the parties to the mortgage. Highland Park State Bank et al. v. Continental Nat’l Bank of Ft. Worth, Tex.Civ.App., 300 S.W.2d 304; Walker v. Johnson, 108 Mont. 398, 91 P.2d 406, 124 A.L.R. 937; 12 Tex.Jur.2d 34-37; 14 C.J.S. Chattel Mortgages § 9, p. 600; 10 Am. Jur. 752, and 1963 Cumulative Supp.

Lee’s first two mortgages refer to invoices which Lee says would have cleared up any ambiguity as to the property description in the mortgages themselves. However, to have examined the invoices, Anderson-Dunham would have had to make inquiry of one or the other of the parties to the Lee mortgages, and the rule does not require it to do so.

Appellee Lee also says that an examination of the County Clerk’s Index of Chattel Mortgages would have disclosed a memorandum made by the clerk describing the property as “tires.” But the mortgages themselves do not refer to the index, hence put no one on notice as to what the index contains as to a description of the property. Furthermore, registration of an instrument is constructive notice only of what appears on the instrument itself as registered. Rheem Acceptance Corp. v. Rowe, Tex.Civ.App., 332 S.W.2d 353; Smith v. Shamburger, Tex.Civ.App., 273 S.W. 645; McLouth v. Hurt, 51 Tex. 115; Carter v. Hawkins, 62 Tex. 393; Taylor v. Harrison, 47 Tex. 454. An error of the clerk in compiling the index cannot breathe validity into an instrument which is not valid as constructive notice, nor can an error of the clerk destroy the validity of an instrument which is valid.

Appellant’s first two points are sustained.

If we be mistaken in our ruling on appellant’s first two points such mistake cannot affect the outcome of this appeal, for we are convinced that appellant’s third point must he sustained; and for that reason, if for no other, the judgment must be reversed. In its third point" appellant says that appellee failed to discharge its burden of proof as to the indentity of the tires alleged to have been converted. We agree with appellant.

A statement of Seago’s account introduced in evidence by Lee itself shows conclusively that at the time of the alleged conversion the debt on the first 200 tires alleged to have been securéd by the mortgage of April 4, 1959 had been paid in full. The statement shows that the total purchase price of these tires was $15,999.92 divided into three monthly payments evidenced by three promissory notes of $5,333.31, $5,333.31 and $5,333.30 respectively. The statement shows two payments of $5,333.31 each prior to the date of the conversion and a balance due on Seago’s account of $5,333.30 as of August 20, 1959.' This was prior to the execution by Seago of the second mortgage which wás dated August 25, 1959. ' The statement further-shows that on September 18,. 1959 Seago. made a payment of $5,333.30, the exact', amount still due on the third note secured by the mortgage of April 4, 19,59. By this time the indebtedness secured by" the mortgage of August 25, 1959 had b'een'.incurred-by Seago, but none of it wasi yet' due. There is nothing in the. record .to show that either Lee, the creditor, or Seago, the debt- or, directed how the payment of September 18, 1959 should be applied. In the absence of any such direction the payment is ter be. applied to the oldest debt. Wall v. Young County Lumber Co., Tex.Civ.App., 368 S.W.2d 789, 793; Pyle v. Byrne, Tex.Civ.App., 331 S.W.2d 507, 509; Aetna Casualty & Surety Co. v. Haun Lumber Co., 128 Tex. 296, 97 S.W.2d 460 (modified on other grounds 128 Tex. 460, 98 S.W.2d 167); Union Central Life Ins. Co. v. Austin, Tex.Civ.App., 52 S.W.2d 536; Marshall v. G. A. Stowers Furn. Co., Tex.Civ.App., 167 S.W. 230. The last named case seems especially in point here. By such application of the payment of $5,333.30 of September 18, 1959 the entire indebtedness secured by the mortgage of April 4, 1959 on 200 tires was extinguished.

Since the indebtedness was extinguished and the mortgage of April 4, 1959 was thereby discharged, a suit against Anderson-Dunham for conversion could not be maintained by Lee as mortgagee with reference to the 200 tires once subject to the discharged mortgage. Scaling v. First Nat’l Bank, 39 Tex.Civ.App. 154, 87 S.W. 715.

The burden was of course on Lee to prove that Anderson-Dunham converted tires which were still subject to one of Lee’s chattel mortgages. Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185; Humphreys-Storts Ins. Agency v. Hoffman, Tex.Civ.App., 254 S.W. 154; Citizens Loan Inv. Co. v. Young, Tex.Civ.App., 247 S.W. 662; Mershon v. Vosley, Tex.Civ.App., 62 S.W. 799; 14 Tex.Jur.2d 67-71. This Lee failed to do. There is no evidence to show that Anderson-Dunham converted to its own use any of the remaining 178 tires which were still subject to Lee’s mortgages on the date of the alleged conversion.

Dan Merrill, Branch Manager for Lee, was a witness. About the time of the repossession by Anderson-Dunham Merrill inspected the 25 truck trailers with the 200 tires attached. He had with him a copy of each of the three mortgages. These mortgages included lists of the serial numbers of each of the 378 tires allegedly covered by the three mortgages. We quote from Merrill’s testimony:

“Question: Mr. Merrill, I’ll show you the conditional sales contract dated April 4, 1959, introduced as Plaintiff’s exhibit number 1, with some serial numbers on it, and ask you if that is the list that you are talking about that you had with you ?
“Answer: Yes, sir. That’s one of the lists. There was three lists involving three contracts on conditional sales. And I had all three of them.
“Question: At that time?
“Answer: I had copies of them.
“Question: All right, I’ll ask you to look at the Plaintiff’s exhibit number 2, a conditional sales contract dated August 13, 1959 — I beg your pardon. August 25, 1959, and with some serial numbers shown on it, and ask you if that is another of the three instruments you had?
“Answer: Yes.
“Question: I’ll show you Plaintiff’s exhibit number 3, another conditional sales contract, this one dated October 6, 1959, and ask you if that is the third of the three instruments you were referring to ?
“Answer: Yes.
“Question: Will you please point out to me which of the serial numbers on those three instruments were the serial numbers you found on those tires that day on that lot ?
“Answer: No, I don’t believe I would.
“Question: Are you able to?
“Answer: No.”
* * * * * *
“Question: But you don’t know which ones of those serial numbers were on the tires ?
“Answer: No, I didn’t check every serial number. It would have been impossible.
“Question: Did you check every serial number on every tire?
“Answer: Not at the time I made the visual inspection out at the gravel pit, no.
“Question: How many of them did you verify?
“Answer: I’d say approximately a half a dozen.
“Question: And that’s all you verified as to the serial numbers?
“Answer: Right.”

Another witness for Lee was Oscar Glenn, President of Seago. He testified as follows:

“Question: Mr. Glenn, when you inspected those trailers and found 198 Lee tires on them, did you take the serial numbers of those tires?
“Answer: No, I did not.
“Question: You don’t know them by serial numbers?
“Answer: No, sir.
“Question: And you wouldn’t know which particular Lee tires out of your stock were on those trailers ?
“Answer: No sir.”

From the above testimony it is plain that Lee failed to show that the tires repossessed were subject to Lee’s mortgage of August 25, 1959 or October 6, 1959. The tires for all the evidence showed might just as well have been among the first 200 tires covered originally by the mortgage of April 4, 1959 which had been discharged by payment of the indebtedness it secured. Appellant’s third point is sustained.

In its fourth point appellant complains that Lee’s mortgages of August 25, 1959 and October 6, 1959 were not executed by Seago until several days after the actual sale of the tires. We see no merit in this point and it is overruled.

For reasons given the judgment of the trial court will be reversed and the cause remanded for another trial.

Reversed and remanded.

      . The statement is as follows:


text:
    J. C. PENNEY CO., Inc., Appellant, v. Cardell HOLMES and Savannah Holmes, Appellees.
    No. 16320.
    Court of Civil Appeals of Texas. Dallas.
    March 20, 1964.
    Rehearing Denied April 17, 1964.

      Thompson, Knight, Wright & Simmons, Pinkney Grissom, Jerry P. Jones and John A. Gilliam, Dallas, for appellant.
    Leachman, Gardere, Akin, Porter & De-Hay, Edward E. Crowell, Jr., and Ralph Hártman, Dallas, for appellees.
   BATEMAN, Justice.

Cardell and Savannah Holmes, husband and wife, recovered a judgment based on a jury verdict against J. C. Penney Company, Inc., for $6,000 damages for personal injuries sustained by Savannah Holmes when she allegedly caught the heel of her shoe on a loose metal strip on one of the stairs in appellant’s store in McKinney, Texas and fell to the bottom of the stairs.

Facts

The stairway in question, beginning at the 'ground floor, consisted of three steps and a “landing” (which was the fourth step), at which there was a 90-degree turn to the left and from which the steps continued to the second floor. The steps and lánding were covered with linoleum, and on the outside or “leading” edge of each step was a metal strip. A person ascending these stairs would face a sign on the wall at the landing mentioned, reading:

“SAFETY FIRST PLEASE USE HANDRAIL.”

On each side of the steps below the landing is a bannister, on top of which is a wooden handrail. Mrs. Holmes denied in her testimony the existence of such a handrail at the place where she started falling, but a photograph introduced in evidence clearly shows, and the jury found, that it was there. Mrs. Holmes had been in the store numerous times, and on the day of her accident she climbed the stairway in question and, after trying without success to find clothing which fit her, started to descend the same stairs. She had her purse suspended from her left arm and was not carrying any packages. She reached the landing safely and turned to her right to go down the remaining four steps. She stepped off with her right foot but the heel of her left shoe caught on something and she fell downstairs. She said she did' not know what it was her left heel caught on but it was “something bright.” She said that after she fell she saw her left shoe hanging on the metal strip on the stair. She said this shoe was brought to her out at the hospital and that the heel thereof had come partially loose from the shoe but was still attached. She said that she did not have anything in her right hand and that if there had been a rail there she could have caught hold of it, but she didn’t catch hold of it because there wasn’t any rail there. She said that when she went up the stairs she did not see anything wrong and she didn’t feel anything loose under her feet.

However, there was evidence that in the latter part of 1960 (the accident occurred February 27, 1961) walking on the metal strips on the stairs produced “a rattling sound, a rather peculiar sound,” that some of the metal strips were loose; and that about a month and a half or two months before Mrs. Holmes’ accident another woman had caught her heel on the metal strip on one of the stairs four or five steps up from the landing, and that this metal strip was raised above the stair level.

S. E. Davidson, a part time contractor, testified that he had worked on the stairway in 1958 when he lowered the metal strips to make them level or flush with the linoleum’ on the stairs, and that the particular metal strips had been there “a long time”; that after hearing- about Mrs. Holmes’ fall he went back and found that there were no strips loose on the stairs. The store manager also testified that he went up and down the stairs, several times a day and inspected the stairs 'at all times and found nothing wrong with them; that on the day of this accident he, made a very careful examination of the staircase and found nothing .wrong with it, and that since Mr. Davidson’s work in 1958 the tread has always been flush with the step; .that it would be impossible for anyone to have caught the edge of her heel under the metal strip; that the strips were all screwed down tight and that they were not loóse. •

Mrs. Jewell Hendricks, an employee of the store, testified that she saw Mrs. Holmes fall, and when asked to describe the fall she said, “Well, she just kinda wilted down and kinda grabbed for the stair rail.” When she arrived at the-place where Mrs. Holmes had fallen she did not see Mrs. Holmes’ shoe stuck-under the stair tread.

The jury’s findings on special issues were: (1) the defendant failed to provide a safe place for Savannah Holmes to walk, (2) which was negligence, and (3) a proximate cause; (4) the defendant maintained a step at the top of the landing of the stairs in question with a loose metal strip thereon, (5) which was negligence, and (6) a proximate cause; (7) the defendant failed to exercise ordinary care in installing and maintaining the metal strip on the edge of the top step of the landing, (8) which was a proximate cause; (9) the event was not an unavoidable accident; (10) Savannah Holmes failed to heed the warning sign located on the wall at the landing of said stairs, (11) which was negligence, but (12) was not a proximate cause; (13) the defendant had provided handrails on the stairs for the use of persons descending them; (14) Mrs. Holmes failed to use the "handrail, (15) which was negligéhee, but (16) was not a proximate cause;- (17) Mrs. Holmes did not fail to keep’ a ¡proper lookout; (19) her damages for pain, mental anguish, etc., were $5,350, and (20) her medical bills incurred in the past amounted to $650.

Opinion

By its first four points of error on appeal appellant contends that the court erred in overruling its motion for judgment non obstante veredicto because (1) as a matter of law the contributory negligence of Mrs. Holmes in failing to use the handrail was a proximate cause of her fall and injuries, and (2) the jury findings to the contrary were against the great weight and preponderance of the evidence.

“To be the proximate cause of an event, there must be both causation in fact and foreseeability.” Luvual v. Henke & Pillot, Division of Kroger Co., Tex.Civ.App., 366 S.W.2d 831, 836, err. ref. n. r. e.

The burden rested on appellant to establish, not only negligence on the part of Mrs. Holmes, but also that such negligence proximately caused her injuries. A finding of negligence, unaccompanied by a finding that such negligence was a proximate cause, would not be sufficient to establish the defense. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 989.

We have no authority to disregard these negative findings on proximate cause if there was any evidence to support them or if reasonable minds could differ as to the inferences reasonably to be drawn from the testimony. In either event an issue of fact is raised and the findings of the jury thereon cannot be disturbed by us. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

“While there may be cases in which a court would be warranted in holding [as a matter of law] an act of negligence to be a proximate cause of an injury, such cases are extremely rare and generally the question of proximate cause is one of fact. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063.” Luvual v. Henke & Pillot, Division of Kroger Co., Tex.Civ.App., 366 S.W.2d 831, 836, err. ref. n. r. e.

In determining whether the findings have sufficient support in the evidence, we must and do indulge all reasonable presumptions and intendments to support the same. 3-B Tex.Jur. Appeal and Error, § 911, p. 370; Thompson v. Bob Tankersley Produce Co., Tex.Civ.App., 289 S.W.2d 840, err. ref. n. r. e.; Watt v. Texas State Board of Med. Examiners, Tex.Civ.App., 303 S.W.2d 884, err. ref.

An application of the foregoing rules persuades us that the appellant’s first four points of error are without merit, and they are therefore overruled.

The jury may have inferred from the evidence that even if Mrs. Holmes had caught hold of the handrail this would not have prevented her fall; or, it may have properly inferred that under all the facts and circumstances Mrs. Holmes could not reasonably foresee that an accident would occur, or that she would fall, because of her failure to use the handrail. Either inference could properly have been drawn from the evidence and, under the law and the definition of “proximate cause” given by the court in the charge, would have warranted the jury in giving negative answers to both proximate cause issues.

Since there was no direct evidence that Mrs. Holmes’ use of the handrail would have prevented her fall, and reasonable minds could differ as to the effect of the circumstantial evidence, a directed verdict on the issue of proximate cause would not have been in order. As judgment non ob-stante veredicto is authorized only if a directed verdict would have been proper, it follows that there was no error in overruling the motion. Rule 301, Vernon’s Texas Rules of Civil Procedure.

Appellant also contends that the negative findings on proximate cause are so against the great weight and preponderance of the evidence that they should be set aside. A careful review of all of the evidence in the record fails to support this contention and it is therefore overruled. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We turn now to a consideration of appellant’s remaining twelve points which, according to appellant, together assert that there was reversible error in the manner in which the court submitted to the jury the special issues presenting appellees’ theory of the case. This theory was submitted in three sets of special issues summarized as follows:

1) Special Issues Nos. 1-3 inquiring as to whether appellant “failed to provide a safe place for Savannah Holmes to walk”, and whether such failure, if any, was negligence and a proximate cause of appellee’s injuries;
2) Special Issues Nos. 4-6 inquiring as to whether appellant “maintained a step at the top of the landing of the stairs in question with a loose metal strip thereon”, whether such conduct, if any, was negligence and a proximate cause of appellee’s injuries ; and
3) Special Issues Nos. 7 and 8 inquiring as to whether appellant “failed to exercise ordinary care in installing and maintaining the metal strip on the edge of the top of the landing”, whether such failure, if any, was a proximate cause of appellee’s injuries.

Appellant objected to these special issues on two grounds: first, that Special Issues Nos. 1 and 7 were multifarious and duplicitous in that No. 1 was nothing more than “a general charge of negligence” and No. .7 inquired into the existence of more than one material fact; second, that each of the .above sets of issues was duplicitous of the other in that they inquired about the same ■matters and facts.

We think there can be little doubt but that Special Issue No. 1, which inquired as to whether appellant “failed to provide a safe place for Savannah Holmes to walk,” partakes of the nature of a general charge in that it submits the several specific acts of negligence alleged by appellees in one general inquiry.

“When one pleads and relies upon specific acts or omissions of negligence, it is not proper to submit issues as to negligence in general terms. To inquire whether defendant maintained the steps in a reasonably safe condition is to submit an issue ‘general in nature portraying the whole of plaintiff’s pleadings; thus concealing under a mass of generalities the facts relied upon for recovery.’ ” McDonald v. Joske’s of Texas, Tex.Civ.App., 268 S.W.2d 475, no wr. hist.

In Clary v. Morgan Motor Co., Tex.Civ.App., 246 S.W.2d 936, no wr. hist., it was held to be improper to inquire of the jury as to whether a defendant “failed to maintain the premises in a safe condition.” See also City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125, and Missouri-Kansas-Texas R. Co. v. Roberts, Tex.Civ.App., 225 S.W.2d 198, err. ref. n. r. e. Therefore we hold that it was error for the court to submit Special Issue No. 1 over appellant’s said objection.

We hold also that it was error for the court to submit Special Issue No. 7 inquiring as to whether appellant “failed to exercise ordinary care in installing and maintaining the metal strip on the edge of the top of the landing,” over appellant’s objections that it inquired into the existence of more than one material fact, to-wit, (1) whether appellant installed the metal strip, (2) whether appellant maintained the metal strip, (3) whether appellant was negligent in installing the metal strip, and (4) whether it was negligent in maintaining the metal strip. The issue as submitted was multifarious in that it inquired about a number of different facts which should have been inquired about in separate issues. Hodges on Special Issue, Submission in Texas, Ch. VI, § 42, p. 113.

Appellant’s objection to Special Issue No. 7 on the ground that there was no evidence relating to the installation of the metal strip was properly overruled. We consider the testimony of the witness Davidson to-be at least some evidence of the installation. He said that in 1958 he took the screws out of the strips, cut the linoleum out from under them and then lowered the strips so they would be flush with the rest of the linoleum. This was in practical effect an “installation.”

Appellant also attacks the submission of all of the special issues bearing on appellant’s alleged negligence (Nos. 1 through 8) on the ground that they are duplicitous, each submitting a shade or phase of the other and, in effect, submitting the same fact question in different form. It is argued that the vice in this manner of multiple submissions is that it places an undue emphasis upon the claimant’s theory of the case. We agree that appellant’s case was probably prejudiced by this manner of submission.

When all of the evidence was in it should have been apparent that, although more than one act of negligence on the part of appellant was alleged,’ only one was raised by the evidence, requiring the submission of only three issues: (1) whether.a defect in one of the stairs existed, (2) whether appellant was negligent in permitting it to exist, and (3) whether such negligence, if any, was a proximate cause of Mrs. Holmes’ injuries.

Because of the undue emphasis it may give to a single issue in the consideration of the jury, there is good authority for holding that this manner of submission of the same fact issue in several different forms will so prejudice the losing party as to constitute reversible error. 41-B Tex. Jur., Trial — Civil Cases, § 488, p. 651; Covington v. Howard, Tex.Civ.App., 347 S.W.2d 802, err. ref. n. r. e.; Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633, 636, err. ref.; Dallas Ry. & Terminal Co. v. Bishop, Tex.Civ.App., 153 S.W.2d 298, 304, no wr. hist.; Ellis v. Lewis, Tex.Civ.App., 142 S.W.2d 294, no wr. hist.; Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

For the reasons hereinabove assigned, the judgment is reversed and remanded for another trial.

Reversed and remanded.

       Upon another trial other fact issues may develop which, if he deems them to be material, the trial court should not hosi-tate to submit because of what we have said above.