author: BARROW, Justice.

text:
    Iona D. WISEMAN et al., Appellants, v. The STATE of Texas, Appellee.
    No. 14495.
    Court of Civil Appeals of Texas. San Antonio.
    July 20, 1966.
    Rehearing Denied Sept. 21, 1966.

      Gray & Gardner, San Antonio, for appellants.
    Waggoner Carr, Atty. Gen., Claude Hodges, Jr., Asst. Atty. Gen., Austin, for appel-lee.
   BARROW, Justice.

This is an appeal from a judgment entered in a condemnation action wherein the State of Texas condemned an irregularly-shaped parcel of land containing about 180 square feet out of the front yard of appellants’ residential property in San Antonio,for highway purposes.

The primary controversy in the trial court and on this appeal relates to the damage to appellants’ remaining property. Three expert witnesses testified, two for appellants and one for the State, and gave the following opinions of value:

Part Taken Remainder Before Remainder After
R. N. White, Jr. $132.00 $10,576.60 $5,288.30
Louis W. Lipscomb 126.00 10,288.00 5,500.00
Nelson Cory, Jr. 100.00 9,800.00 9,200.00

The jury found that the value of the land taken was $130.00, the value of the remainder before the taking was $10,170.00, and after the taking it was $8,644.50. Judgment was entered on this verdict for $1,655.00, and appellants have perfected this appeal.

On May 11, 1965, which was stipulated to be the date the land was taken, appellants owned a city lot having a frontage of 49.8 feet, a depth of 128 feet, and being 47.93 feet wide at the rear. On this lot was a three-room house which faced north on Dunning Street, and an asphalt driveway which lead to a double garage was located just west of the house. Although the edge of the street pavement was about 23 feet from the front of the house, the property line was only about 8 to 10 feet north of the house.

This land was condemned for use in the construction of I.H. 10, and particularly in the construction of an interchange between I.H. 10 and I.H. 37 near the property. This project is a part of the National System of Interstate and Defense Highways in the State of Texas, and I.H. 10 is a controlled access highway with frontage roads to be built as a part of said highway with right of access. The nearest lane of the freeway is about 170 feet north of appellants’ property and the access road is 120 feet from the house. As a result of the interchange, Dunning Street would dead-end a short distance west of appellants’ property. To alleviate the dead-end street, the State desired to construct a street connection between Dunning St. and Highland Blvd., which is one block south of Dunning. To do so, Dunning St. would curve to the south and cut across the northwest corner of appellants’ front yard. Although only about 180 sq. ft. of appellants’ property was required, the new right-of-way passed to within 15 to 18 inches of their living room.

Appellants’ principal complaint on this appeal relates to the admission into evidence of several exhibits of the construction plans which had been let on this new street. In doing so, the State showed that the nearest edge of the new street would pass 20 ft. from appellants’ residence, and that two approaches would be constructed into appellants’ present driveway. This was very dramatically shown by an exhibit in which an overlay with the proposed plans was laid onto a plat of appellants’ property. Appellants urge that the State was thereby permitted to diminish the damage by showing it did not intend to use all the strip taken for highway purposes. Appellants sought an instruction to the jury that it should presume the State would exercise to the fullest extent the rights it acquired.

This Court in Perkins v. State, 150 S.W.2d 157, wr. dism., adopted with approval the following rule from 20 Corpus Juris 768, § 227: “The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired, should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.” This rule has been consistently followed in this State. See Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958); Creighton v. State, Tex.Civ.App., 366 S.W.2d 840, wr. ref. n. r. e.; Strickland v. City of Friona, Tex.Civ.App., 294 S.W.2d 254, wr. ref. n. r. e.; Hill v. State, Tex.Civ.App., 289 S.W.2d 801, no wr. hist.

The critical issue in this rule is: “What rights are acquired?” In Texas Power & Light Co. v. Cole, supra, the Supreme Court held that the trial court properly instructed the jury that the easement acquired was subordinate to condemnee’s right to enter upon his land to remove sand and gravel after condemnor filed a supplemental petition and expressly reserved these rights to condemnee. In Perkins, supra, although the State had an absolute right under its easement to remove shrubbery from the right-of-way, the trial judge erroneously permitted a witness to testify that it was the State Highway Department’s policy to leave such shrubbery undisturbed. In Creighton, supra, the court pointed out that although the State was taking a fee title to the land, the State was erroneously permitted to show that Creighton would be “permited” to use the right-of-way for construction of a fence and for passage of his cattle. This clearly was a privilege which might be revoked at the pleasure of State.

Here the original petition of State sought a fee simple title to the strip taken, reserving to appellants only the right of access. However, by trial amendent filed without objection prior to the beginning of the trial, State amplified this right of access and expressly reserved unto appellants the right of ingress and egress to and from the remainder, along that part taken by the State “at the northwest corner of the property.” State asserts that by virtue of this limitation upon its fee simple title, it was proper to show that approaches would be constructed to connect with appellants’ present driveway.

It is our opinion that the trial court did not err in admitting this testimony or in refusing the requested instruction. The physical facts demonstrate that with the house only 15 to 18 in. from the new right-of-way line, reasonable access at the northwest corner of the property could only be had by the construction of approach driveways. The taking of the corner of the lot where the driveway to appellants’ garage was located made demonstration of the access critical to the case. State’s witness Cory testified that the State would substantially interfere with appellants’ right of access if it subsequently attempted to pave up to the right-of-way line. Neither of appellants’ witnesses denied this fact, but both testified in effect that access would be hazardous because of the curve, even if the proposed approaches were constructed. Since access at this particular corner was reserved unto appellants, it was proper to show that reasonable access could be had by appellants. In view of this express restriction on State’s title, any subsequent interference with appellants’ right of reasonable access at this corner would result in a cause of action for appellants. State v. Meyer, 403 S.W.2d 366 (Tex.1966); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965). The evidence complained of by appellants was not in conflict with the rights acquired by the State, in view of the limitation in State’s title set forth in the trial amendment.

Appellants assert also that the verdict of the jury is grossly inadequate and there is no evidence, or, in any event, insufficient evidence to support same. It is seen that the verdict is within the range of the expert testimony. See Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 499, wr. ref. n. r. e. Under the testimony of State’s witness Cory the damages to the remainder amounted to $600.00 as compared to the $1,525.50 found by the jury. His valuation, which was based in part upon the sale of a piece of property after a comparable partial taking, was admitted without objection. On the other hand, appellants’ expert witnesses found the damages to the remainder to be approximately $5,000.00. This conflict in the testimony was fully developed during the trial and was resolved by the jury in their verdict. The verdict of the jury is fully supported by the evidence.

Although the trial amendment of the State expressly reserved unto appellants right of access at the northwest corner of the subject property and the full development of the evidence under this reservation, the judgment of the trial court provides only that “the right of ingress and egress to or from the remaining property of appellants abutting on said highway is not to be denied.” In .view of the restriction made upon State’s, title by their trial amendment, the judgment is reformed to provide further that “the ingress and egress to and from the remaining property shall be permitted at the northwest corner of said property.”

The judgment is reformed and as reformed is here affirmed. Costs are taxed one-half to appellants and one-half to appellee.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    TEXAS FARM PRODUCTS COMPANY, Appellant, v. Aron WILLIAMS, Appellee.
    No. 191.
    Court of Civil Appeals of Texas. Tyler.
    July 21, 1966.
    Rehearing Denied Sept. 22, 1966.

      Charles R. Cravens, Jr., Carrington, Johnson & Stephens, Dallas, S. M. Adams, Jr., Nacogdoches, for appellant.
    Benton Musslewhite, Musslewhite & Musslewhite, Lufkin, for appellee.
   DUNAGAN, Chief Justice.

This suit was instituted by appellee, Aron Williams, against appellant, Texas Farm Products Company, in the District Court of Nacogdoches County, Texas, seeking under the Fair Labor Standards Act of 1938 (Title 29, Sec. 207 et seq.) certain sums allegedly due from appellant for overtime hours worked by appellee. In addition to the amount of overtime pay claimed, appel-lee sought a like amount as liquidated damages and attorney’s fees as authorized by the Act. Appellant defended the action principally upon the grounds that the employee classification of appellee was such that he fell within the provisions of Sec. 213(b) (1) of said statute, which specifically exempted appellee from its overtime pay requirements.

The cause was submitted to a jury which found, in answer to special issues, that ap-pellee, Aron Williams, during the periods of time here relevant, (1) had ridden across a state line in a truck owned by appellant, hauling the latter’s property in the scope of his employment as a driver’s helper; (2) that appellee made such trips across state lines regularly or repeatedly; (3) that ap-pellee, as an employee for appellant, had performed work of loading appellant’s goods and products onto a conveyor belt which carried such goods and products directly into appellant’s truck or trailer for transportation across state lines; (4) that appellee, as such employee, performed such work regularly and repeatedly; (6) that appellant transports property repeatedly across state lines and that (7) appellee was required in his employment by appellant to cross state lines on a regular and re-occurring basis; (8) that appellee, as such employee, had engaged in the following activities for appellant: (a) directing a driver backing into loading docks and (h) loading trucks, but in effect the jury further found (9) that such activities did not substantially affect the safety of the operation of the vehicle. The jury also in effect found (10) that appellant had not acted in good faith in failing to pay appellee overtime pay and that (11) appellant did not have reasonable grounds for believing that its refusal to pay such overtime pay was not a violation of the Act and found that (12) the sum of $750.00 was a reasonable attorney’s fee for legal services rendered in the case by appellee’s attorney.

Shortly after appellee had rested his case, appellant presented its Motion for Instructed Verdict upon the grounds that, as a matter of law, the evidence conclusively showed that appellee was an “exempted” employee within the terms of Sec. 213(b) (1) of the Fair Labor Standards Act and that appellant had not violated it. Appellant’s motion was overruled and, before judgment was entered upon the verdict, appellant, by its Motion for Judgment Non Obstante Veredicto, moved the court to enter judgment for it upon substantially the same grounds it had urged in its Motion for Instructed Verdict. After due notice and a hearing thereon, the trial court overruled appellant’s motion and entered judgment for appellee for the sum of $548.-49, which sum was established as being the correct amount of overtime pay due if appellee was subject to the Act, a like amount as liquidated damages under Sec. 216, and the additional sum of attorney’s fees as found by the jury. Appellant’s Motion for New Trial having been overruled, this appeal has been timely perfected.

By its first Point of Error appellant contends that the trial court erred in refusing to hold that appellee was an “exempt” employee under Sec. 213(b) (1) of the Fair Labor Standards Act; and by its second Point of Error appellant asserts that the trial court erred in awarding to appellee liquidated damages because it was conclusively established that its refusal to pay overtime wages was in good faith and upon a reasonable belief that it was not in violation of the Act. In view of the disposition we make of the case, it will be unnecessary to discuss the second Point of Error.

The primary and, as we view it, the crucial point to be decided is whether ap-pellee was an “exempt” employee under the Act thereby relieving appellant of the obligation to pay him the overtime rate as provided in Section 207 aforesaid.

In order to clearly understand appellant’s contentions herein, it is deemed necessary to briefly review the statutes involved.

In 1935 the Motor Carrier Act (49 U.S.C.A., Sec. 301-327) was passed by Congress. The Congressional intent in passage of this legislation was to promote the safety of interstate carriers and the Motor Carrier Act gave the Interstate Commerce Commission the power to establish reasonable regulations with respect to the qualifications and maximum hours of service of certain employees and safety of operations and equipment.

In 1938 Congress passed the Fair Labor Standards Act, under which this suit is brought, and provided thereby for the rates of pay for employees doing overtime work as defined therein.

Sec. 13(b) (1), 29 U.S.C.A., Sec. 213 (b) (1) of the Fair Labor Standards Act created the exemption which forms the basis of appellant’s defense herein. This Section specifically provided that the provisions of Sec. 207 of said Act did not apply with respect to:

“(1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; * * * (Sec. 204 of the Motor Carrier Act, 1935).”

In 1941 the Interstate Commerece Commission, pursuant to the authority extended it under the Motor Carrier Act, promulgated an order in which it defined those classifications of employees of Interstate Motor Carriers, other than truck drivers, over which it had jurisdiction. Ex parte No. MC-2, In the Matter of Maximum Hours of Service of Motor Carrier Employees, 28 MCC 125 (1941). The Commission determined that drivers’ “helpers,” as defined by it, did affect the safety of operation of vehicles and therefore such drivers’ “helpers” were within the Commission’s jurisdiction and, accordingly were excluded from the benefits of Section 207 of the Fair Labor Standards Act.

The Commission further in the Order aforesaid entered as a finding of fact and conclusion of law the following:

“Findings of fact.— * * * 3. That helpers employed by common and contract carriers and private carriers of property by motor vehicle subject to part II of the Interstate Commerce Act devote a substantial part of their time to activities which directly affect the safety of operation of motor vehicles in interstate or foreign commerce. We further find that the term ‘helpers’ as used herein includes all employees, other than the drivers, who are required to ride on a motor vehicle when it is being operated in interstate or foreign commerce.
“Conclusions of law.— * * * 3. That we have power, under section 204 (a) of said part II (the Motor Carrier Act of 1935), to establish qualifications and maximum hours of service for the classes of employees covered by findings of fact numbered * * * 3 above, * * * ’>

Appellee contends that he was hired by appellant and worked as a “swamper that he was required to accompany the truck driver for the sole purpose of unloading the truck or trailer upon reaching its destination and that he was not required to perform any duties or activities which were of a “safety-affecting” nature and, therefore, the Interstate Commerce Commission acquired no jurisdiction under Section 213(b) (1) of the Act to establish qualifications and maximum hours of service for such an employee. He therefore asserts that he was not an “exempt” employee within the meaning of the Act. Moreover, appellee points out that the jury, in answer to Special Issue 8, Sections (b) through (g), failed to find that appellee, during his employment with appellant, had directed a driver pulling away from loading docks; or had directed a driver onto highways or at railroad intersections or had changed tires, set up flares, or fixed flats. Appellee contends therefore that it was within the province of the trier of the facts to determine whether appellee’s activities “affected the safety of operation” and, unless there is a factual determination in the trial court that his activities did so affect the safety of operations, the appel-lee did not fall within the exemption provisions of Sec. 213(b) (1) of the Fair Labor Standards Act. Appellant contends that the Interstate Commerce Commission has already determined that certain classes of work set forth in 28 MCC 125, such as “helpers,” directly “affects the safety of operation” of motor vehicles in interstate commerce and it is necessary only to determine whether appellee’s activities were such as to fall within the Commission’s definition of “helpers.” Appellant further contends that the admissions of appellee, together with the jury findings below, clearly placed him within the jurisdiction of the Interstate Commerce Commission, thereby making applicable the exemption provision of the Fair Labor Standards Act.

In an early case defining which employees were to be within the jurisdiction of the Interstate Commerce Commission under Section 204 of the Motor Carrier Act (49 U.S.C.A., Sec. 304(a)), the United States Supreme Court held that the provision was limited to those employees whose activities affected the safety of operation. The court held that the Interstate Commerce Commission had no jurisdiction to regulate the qualifications or hours of service of any others. United States v. American Trucking Associations, 310 U.S. 534, 553, 60 S.Ct. 1059, 84 L.Ed. 1345, 1356 (1940). However, once it is determined that the Commission under Section 13(b) (1) of the Fair Labor Standards Act possesses the power to regulate certain employees, all such employes falling within such classifications are exempt regardless of whether the Commission has exercised its power to regulate. If any employee falls within the Commission’s jurisdiction, he is excluded per se from the benefits of the overtime provisions of Section 207 of the Act. Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244. Similar regulations and factual determinations of the Interstate Commerce Commission were upheld by the Supreme Court in Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158 (1947). The employees involved in the cited case were “checkers” or “terminal foremen,” a substantial part of whose activities consisted of directing the work of “loaders” of freight for interstate motor carriers. In the cited case, the class of work of “loaders” had been defined by the Commission and it was conceded that at least a part of these employees’ activities did not affect the safety of operation of motor carriers. The court held that the Commission had the power under Section 13(b) (1) of the Fair Labor Standards Act to classify such activities and that such employees therefore were excluded from the overtime pay provisions of the Act. The court points out that the Commission had found that it had the power to establish qualifications and maximum hours of service for those persons doing the work of “loaders” although the Commission had not found it advisable to establish qualifications and maximum hours of service for that work. The findings of fact of the Commission, the court found, were squarely within the jurisdiction of the Commission and, since the latter had the power to make regulations relating to such activities, such employees fell within the exemption provision of the Act. The determination by the Commission that the work of “loaders,” as defined by it, affected the safety of motor carrier operation was squarely and directly upheld by the Supreme Court. The companion case of Pyramid Motor Freight Corporation v. Ispass, 330 U.S. 695, 698, 67 S.Ct. 954, 91 L.Ed. 1184 (1947), made it clear that it was within the province of the District Court to determine whether the activities of the employee consisted, wholly or in substantial part, of the class of work of a “loader” as defined by the Interstate Commerce Commission. And in Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), the court held that it was the character of the activities of the employee and not the amount of time actually spent in those activities that determined whether such employees were under the jurisdiction of the Commission.

The cases above cited clearly demonstrate that the United States Supreme Court places exclusive reliance upon the determination of the Interstate Commerce Commission and its classification of those jobs which are of a “safety-affecting nature.” The principles announced in the above cases have been followed in numerous other decisions, a few of which will be here noted.

Opelika Royal Crown Bottling Company v. Goldberg, 299 F.2d 37 (Sth Cir., 1962) is a closely analogous case and involved driver-helpers who rode on beverage distributing trucks driven in interstate commerce. The court noted that the ICC had made an exhaustive report on the type of job which it felt affected the safety of operations of vehicles under its jurisdiction, citing MC-2, 28 MCC 125. The court stated that the ICC had determined it had authority and jurisdiction of “helpers” — employees other than the driver— who rode on vehicles under ICC jurisdiction. The court quoted from the Report of the Commission wherein the latter had stated that it was neither necessary nor practicable to draw fine distinctions between the work done by the various employees who ride on the motor vehicle in other capacities than that of driver. The Commission stated that to some extent at least all engaged in activities which directly affect safety of operation. In holding that these employees fall within the jurisdiction of the ICC and thus were “exempt” employees under the Fair Labor Standards Act, the court states as follows:

“We feel that this finding by the Commission is determinative, and we therefore conclude that the driver-helpers in this case are exempt from the overtime provisions of the Fair Labor Standards Act by section 13(b) (1) of that Act.”

See also Fletcher v. Grinnell Bros., 78 F.Supp. 339 (D.C.1948); Mitchell v. Overnite Transportation Co., D.C., 176 F.Supp. 399 (1959); and Brooks Transportation Co., Inc., et al. v. United States, 93 F.Supp. 517 (D.C.1950).

The findings and conclusions of the Commission relating to “loaders” were sustained also in Mitchell v. Hill & Hill Truck Line, Inc., 183 F.Supp. 463 (D.C.Tex. 1960). It is interesting to note that the court in the last cited case holds that if the employees involved fall within the Commission’s definition of “loaders,” they are exempt under the relevant provisions of the Fair Labor Standards Act. The court states that it is the function of the trial court to determine whether the employees there involved seeking recovery of overtime compensation are engaged in activities coming within the Commission’s definition of the work of a “loader.”

It is our view in the case at bar that, unless the matter was established as a matter of law, it was the function of the trier of the facts to determine whether appel-lee’s activities fell within the Commission’s definition of “helpers” and, if appellee’s activities did so fall, he clearly would be an “exempt” employee under Section 213 (b) (1) of the Fair Labor Standards Act aforesaid. The appellee’s activities as found by the jury were within the Commission’s definition of “helper.”

The parties stipulated in the trial below that at all relevant times appellant produced goods for commerce and engaged in commerce within the meaning of the Fair Labor Standards Act of 1938, as amended. Further, the parties agreed that appellant produced either by manufacturing or jobbing, goods which regularly and frequently were shipped in interstate commerce, such goods consisting of feed, fertilizer and associated products. It was further agreed that at all relevant times appellee was an employee of appellant. Upon evidence, the sufficiency of which has not been questioned here, the jury has found in answer to Special Issues 1, 2, 7 and sub-sections (a) and (h) of Special Issue No. 8, that the activities of the ap-pellee were such that he fell within the classification of “helper” as defined by the Commission. Therefore, since the “safety-affecting” nature of a “helper” has been determined by a proper Order of the Interstate Commerce Commission, the trial court is not authorized to upset that determination. The appellee therefore, under the record in this case, falls clearly within the provisions of Section 213(b) (1) of the Fair Labor Standards Act, and appellant was not obligated to pay the overtime sums for which suit was brought. The trial court erred in so holding and the judgment of the court below is reversed and is here rendered for the appellant.

      . Sec. 304 of the Motor Carrier Act reads in part as follows:
      “(a) It shall be the duty of the Commission- —
      “(1) To regulate common carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.
      “(2) To regulate contract carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.
      “(3) To establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, and standards of equipment. ‡ ⅜ * »

      . “(a) (I) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he'is employed; * * *”

      .“(4) Helpers. — The great majority of trucks are operated by a driver alone. Some carriers employ a driver and an assistant who drives part of the time and helps in loading and unloading. Both are drivers and subject to our jurisdiction. In certain sections of the country, however, carriers employ men known as helpers who ride on the vehicle, but do not drive. These helpers not only assist in loading and unloading the vehicle but perform many duties which aid in the safe operation of the motor vehicle. The helpers dismount when the vehicle approaches a railroad crossing, and flag the driver across the railroad tracks. They perform a similar duty when the motor vehicle is being turned around on a busy highway or when it is entering or emerging from a driveway. In the case of a break-down the helper places the flags, flares, and fuses as required by our safety regulations. The presence of a helper in the case of a break-down or an accident makes it possible for one man to go for assistance without leaving the truck unprotected on the highway. Tire trouble is not as frequent as formerly, but punctures do occur. The helper is, of course, of great assistance to the driver in changing tires, putting on or removing chains, and making minor repairs. As the great majority of trucks are operated safely with only one man on the vehicle, we cannot say that the presence of a helper is required, no.- do our safety regulations so provide. It is clear, however, that the duties performed by a helper aid materially in the safe operation of a motor vehicle, and that they devote substantially all of their time to such work. Ordinarily, no doubt, a helper will be on duty the same number of hours as a driver, and it seems entirely practical and logical that the hours of a helper should be regulated in the same manner as those of the driver. We conclude that helpers devote a substantial part of their time to activities which directly affect the safety of operation of motor vehieles operated in interstate or foreign commerce, and hence that we have power to establish qualifications and maximum hours of service for such employees under said section 204(a).

        it * ⅜5 ⅝
      “We believe that it is neither necessary nor practicable to draw fine distinctions between the work done by the various employees who ride on the motor vehicle in other capacities than that of driver. To some extent at least, they all engage in activities which directly affect safety of operation. An attempt to limit our jurisdiction over them in accordance with the degree in which they engage in such activities would create confusion and continual controversy. They will be included in the category of helpers.”


author: RENFRO, Justice.

text:
    Roy D. ATKINS, Appellant, v. Robert E. CROSLAND, Appellee.
    No. 16761.
    Court of Civil Appeals of Texas. Fort Worth.
    July 1, 1966.
    Rehearing Denied Sept. 16, 1966.
    Rawlings, Sayers, Scurlock & Eidson, and Lloyd Scurlock, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and Robert A. Watson, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

Appeal from a summary judgment for defendant.

Plaintiff’s petition alleged that he was in the business of operating filling stations as a sole proprietor, his method of operation was to purchase gasoline on credit, sell it to his customers, then pay his creditors with the proceeds of the sales; toward the end of 1958 plaintiff employed defendant as an independent accountant; his duties included, among other things, preparation of plaintiff’s income tax returns. In performing this function defendant relied upon the cash receipts and disbursements method of accounting; this method failed to show plaintiff’s inventories and was therefore improper; defendant should have used an accrual method of accounting for purchases and sales; that defendant’s choice of accounting methods increased plaintiff’s tax liability for 1960 by several thousand dollars; that defendant was guilty of negligence (a) in originally adopting the cash receipts and disbursements method, (b) in failing to obtain the permission of the Commissioner of Internal Revenue to change the method for 1960, and (c) in failing to warn plaintiff of his tax problem in time for plaintiff to pay off his accounts payable prior to the end of the 1960 tax year; that plaintiff is entitled to indemnity for the excess cost to plaintiff.

Defendant plead the two year statute of limitation, setting out that plaintiff’s pleading shows that any claim plaintiff might have had was barred as of December 31, 1962, and suit was not filed until September 30, 1963.

Motion for summary judgment filed by defendant plead that suit was filed more than two years after the most recent possible date of alleged negligence on the part of defendant. An accompanying affidavit set out that defendant was a certified public accountant, practicing as an independent contractor; that his employment by plaintiff was in that capacity under an oral contract solely for the preparation of tax returns and books of account.

Plaintiff answered the motion for summary judment by alleging that his suit was one for indemnity, hence the statute of limitation did not begin to run until plaintiff paid the excess taxes caused by defendant’s negligence, or until the excess taxes were assessed against plaintiff by the Commissioner of Internal Revenue.

Judgment was entered for defendant.

Plaintiff appealed on two points of error: (1) Plaintiff’s cause of action against his accountant, whose negligence caused plaintiff to incur unnecessary tax liability, did not accrue until that liability was assessed and there was no evidence that this' occurred more than two years before suit was filed; and (2) suit is for indemnity; therefore his cause of action accrued on payment of that liability to the Government, and there was no evidence that payment was made more than two years before suit was filed.

There was no pleading or proof of fraud or concealment.

We are convinced that the pleadings and record before the trial court show conclusively that plaintiff’s action is one based on defendant’s .alleged negligence, and not on indemnity.

Accountants, a skilled professional class, are subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions and are held liable for damages to clients resulting from malpractice in actions founded both on contract and tort. Bancroft v. Indemnity Insurance Co., 203 F.Supp. 49 (W.D.La., 1962), affirmed 309 F.2d 959 (U.S.Ct. of App., 5th Cir., 1962).

Ordinarily the standard of care applicable to the conduct of auditors or public accountants is the same as that applied to lawyers, doctors, and other professional men engaged in furnishing skilled services for compensation. 54 A.L.R.2d 316.

The general rule is that certified public accountants constitute a skilled professional class and are subject generally to the same rules of liability in the practice of their profession as are other skilled professions. 1 Tex.Jur.2d 259, § 20.

Where an attorney is guilty of negligence or breach of duty in performing services for his client, the client’s cause of action accrues and the statute of limitation begins to run at the time when the negligence or breach of duty occurs. Crawford v. Davis, Tex.Civ.App., 148 S.W.2d 905 (Eastland 1941, no writ hist.). The cause of action against a surgeon accrues at the time the act of negligence occurs and the two year statute of limitation applies. Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942); Stewart v. Janes, Tex.Civ.App., 393 S.W.2d 428 (Amarillo, 1965, ref.); Wright v. Bida, Tex.Civ.App., 359 S.W.2d 661 (Fort Worth, 1962, no writ hist).

Since the same rules apply to accountants, plaintiff’s cause of action was barred by Art. 5526, Vernon’s Ann.Ciy.St.

Affirmed.


author: MOORE, Justice.

text:
    Homer PUCKETT et ux., Appellants, v. W. A. FRIZZELL, Appellee.
    No. 153.
    Court of Civil Appeals of Texas. Tyler.
    July 21, 1966.
    Rehearing Denied Sept. 22, 1966.
    John E. Heitler, Pope & Heitler, Tyler, for appellants.
    Ben Goodwin, Tyler, for appellee.
   MOORE, Justice.

Plaintiffs, Homer Puckett and wife, Nobie Puckett, brought this suit against defendant, W. A. Frizzell, for the balance due upon the purchase price of a house and lot situated in the City of Tyler, which they sold to Frizzell. The dispute arose over the agreed consideration for the property. Plaintiffs allege that the defendant agreed to pay them the sum of $3,600.00 and in addition, agreed to assume an outstanding indebtedness against the property in favor of East Texas Savings & Loan Association of Tyler, Texas, in the amount of $2,668.66.

The defendant denied the allegations of plaintiffs’ petition and alleged affirmatively that he agreed to pay only the total sum of $3,600.00 for the property. This is the second appeal of this case. Our previous opinion reversing and remanding the cause appears in 377 S.W.2d 715.

The testimony in the present suit shows that the transaction was initiated by the Pucketts. Subsequent negotiations were conducted by Mrs. Puckett and Mr. Friz-zell both over the telephone and by correspondence. As a result of these negotiations, Mr. Frizzell caused a deed to the property to be prepared and forwarded to the Puck-etts for their signature. The deed recited a consideration of $10.00 and the assumption of the outstanding loan by Frizzell. The Pucketts executed the deed, mailed the same to East Texas Savings & Loan Association which, at their request, was to close out the loan and forward the balance due them. Upon receipt of the signed deed, the loan company notified Mr. Friz-zell and he went to their offices and paid the amount of the loan and accepted delivery of the deed. He then made out his check to the Pucketts for the difference between the sum of $3,600.00 and the amount owed on the loan, and the loan company forwarded his check to the Puck-etts. They refused to accept the check and mailed it back to the loan association, advising that their agreement was for the sum of $3,600.00 in addition to the assumption of the loan by Frizzell. Upon being notified of this, Mr. Frizzell maintained that the agreement was for a total consideration of $3,600.00. After considerable correspondence in regard to the matter, Mr. Frizzell finally agreed to re-convey the property to the plaintiffs provided they would agree to reimburse him in the amount of $150.00 which he had expended in improving the house and would pay the necessary expenses involved in the re-conveyance, estimated by the loan company to be approximately $200.00. The Pucketts refused to do this and instituted this suit.

Trial was before a jury. In response to the sole and only special issue submitted by the court, the jury found that Frizzell did not agree to pay the sum of $3,600.00 for the property in addition to the assumption of the indebtedness owing East Texas Savings & Loan Association.

Based upon the verdict, the trial court entered judgment for defendant and found that since the defendant had paid the amount agreed upon and plaintiffs had received such amount, plaintiffs should take nothing by their suit, whereupon they perfected this appeal.

Appellants insist that the judgment must be reversed because there was no evidence of probative force to support the jury’s finding. They take the position that the testimony of the appellee denying that he agreed to assume the outstanding indebtedness in favor of East Texas Savings & Loan Association is incompetent and without probative force because such testimony varies the terms of the deed wherein he agreed to assume the outstanding indebtedness. The contention is not well taken and must be overruled.

As a general rule, the recitals of a deed are not conclusive as to consideration, and inquiry by parol may be resorted to for the purpose of showing the real consideration. Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253, 53 L.R.A. 162; Whitehead v. Weldon (Tex.Civ.App.), 264 S.W. 958.

Appellee testified that the total consideration which he agreed to pay was $3,600.00. Consequently he denied that he also agreed to assume the debt. As we view his testimony, it amounted to nothing more than his version of the agreement as to the total consideration and as such must be accorded probative force.

Appellants further insist that the judgment must nevertheless be reversed because the trial court, over their objection, permitted appellee to prove the cash market value of the property on or about the date of the sale. In this connection, the record reveals that appellee called two expert witnesses who testified that the house was in poor condition and was in need of extensive repairs and had a market value on or about the date of the transaction of approximately $3,500.00. Appellants objected to this testimony on the ground that it was irrelevant, immaterial and prejudicial. They contend such testimony was harmful because it had the effect of bolstering the testimony of Frizzell by showing that he probably did not agree to purchase at a price in excess of the market value. We think the testimony was admissible. At the time this testimony was offered, Mrs. Puckett had previously testified that she and her husband purchased the property in 1951 for the sum of $7,000.00. This testimony was no doubt offered for the purpose of showing the improbability of appellants having agreed to sell for a much smaller sum. At least it was sufficient to lay a predicate for such an argument before the jury. Consequently, we think evidence of market value then became admissible to refute the inference left by her testimony. Aside from this, however, we believe the evidence was admissible under the facts in this case as circumstantial evidence going to show the improbability of appellee’s agreeing to pay a sum grossly in excess of the market value. De Witt v. Bowers, Tex.Civ.App., 138 S.W. 1147.

Finding no reversible error, the judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    HEMPHILL COUNTY, Texas, Appellant, v. Walter ADAMS and Harry Rathjen, Appellees.
    No. 7613.
    Court of Civil Appeals of Texas. Amarillo.
    May 23, 1966.
    Rehearing Denied Sept. 6, 1966.

      J. D. Crow, Canadian, for appellant.
    Allen & Allen, Perryton, Lane.& Douglass, Pampa, for appellees.
   CHAPMAN, Justice.

This is an appeal styled by the brief of appellant as Hemphill County, Texas, Appellant v. Walter Adams and Harry Rath-jen, Appellees, from a judgment of the 31st Judicial District Court of Hemphill County. However, in the Statement of the Nature of the Case the county attorney for Hemphill County, appearing as attorney for the named appellant, relates that during the first appeal the plaintiff amended its cause of action and joined the surety upon the defendants’ bond as a party to the suit. Lawyers Surety Corporation has filed its answer, its motion for summary judgment, and its reply to appellant’s brief.

We make the above explanatory statement for the reason that the county judge testified herein that neither he nor the commissioners court had ever made any claim against Mr. Rathjen for the proceeds of two jeeps alleged in appellant’s pleadings to have been converted by the former sheriff of Hemphill County at a time subsequent to his resignation as sheriff; that the county never put any money in them; and so far as they were concerned they were not converted or stolen by Mr. Rathjen. Of course, this statement does not alter the fact that titles to the jeeps were in Hemphill County and were not transferred out by the commissioners court. The former sheriff resigned about July 3 or 4, 1961, to accept appointment as postmaster of Canadian, Texas. One of the jeeps was sold on November 2, 1961, and one on November 8, 1961.

On February 9, 1959, Hemphill County established a Civil Defense unit and appel-lee Harry Rathjen, then its sheriff, was appointed director. Acquisition of various types of property was made by Mr. Rath-jen from Texas Surplus Property Agency of Lubbock. The director paid his own funds to the Lubbock Agency out of his individual bank account for the handling charges incident to such acquisition. Hemphill County commissioners requisitioned through Rathjen certain items for various precincts and the director was reimbursed by the county. Among the many items acquired by the Civil Defense unit through its director, Rathjen, were two jeeps. The machines were not operational and he expended approximately $1,105.52 to place them in working order, paying for such repairs out of his personal bank account. A witness for the Texas Surplus Property Agency testified the county was at liberty to do as they pleased with the property after two years.

The stated reasons for the acquisition of the jeeps were for disasters such as tornadoes and prairie fires. However, ranchers of the county during the interim purchased a four-wheel drive heavy-duty pickup. The county-owned two-way radio was installed therein rather than in one of the jeeps as Rathjen had intended. The jeeps then became of no value so far as the original intended purpose relating to their acquisition, were never used for such purposes, and were rarely used for any purpose during the time Rathjen was sheriff and director of the Civil Defense unit of the county. The testimony shows that at or about the time he was appointed postmaster he offered the jeeps to the county for the amount he had expended on them and the county was not interested. As above stated he later sold them, receiving less money for them than he had expended in order to make them operational. Suit was filed by the county attorney on behalf of Hemphill County for the $1,050.00 the jeeps were sold for, alleging conversion of that amount by Rathjen and Walter Adams, his successor as sheriff. Adams had transferred titles out of the county.

After a day and a half of testimony the trial court held, inter alia, that the suit was barred by the two-year statute of limitation and dismissed the case. More than two years after the sale of the jeeps the original suit was filed against Rathjen and Adams. Then before the period of four years had elapsed the bonding company was joined as a party defendant. The principal questions to be decided are whether any limitation runs against the county, and if so, whether the two-year or four-year statutes of limitation are applicable. Appellant contends that limitation does not run for the reason that Hemphill County was operating in a governmental capacity as an agency of the state “ * * * and no limitation will ever run as to the same.” This question has given us no end of trouble in an effort to resolve the issue, and much confusion on the subject is shown in the myriad of cases we have studied.

The case cited by appellant for its contention that “ * * * no limitation will ever run as to the same,” (referring to its cause of action asserted) is Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000. The statement relied on in the case is pure dictum and most unusual for the learned writer whose many opinions are so clear and concise. The late Chief Justice who authored the opinion prefaced the statement, obviously relied on by appellant in Syl. 6, by saying that the statements he had already made “ * * * renders it unnecessary for us to pass on the other assignments raised in the briefs.” He then called attention to a case relied on by defendants in error, merely stating that such case, “ * * * dealt with a homerule city and not a county, and that a city may exercise proprietary functions, while a county, as a mere subdivision of the State, can exercise only governmental functions.” (Emphasis added). Actually, the case he referred to, Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, nowhere held that: “[A] county, as a mere subdivision of the State, can exercise only governmental functions.” No county was even involved in the case. It is not completely clear if the quote had reference to a legal question being dealt with in the case referred to or if the writer was making the statement that * * * a county, as a mere subdivision of the State, can exercise only governmental functions.” Regardless of the interpretation placed upon it in this connection, it is still dictum.

The theory advocated in some opinions of our courts, unnecessary to cite, originated with the maxim — “Nullum tempus occurrit regi” — that time does not run against the sovereignty; and that a county being an integral part of the state government would not be subject to the bar of statutes of limitations. The Supreme Court of Texas in one of its early opinions suggested that the maxim, acknowledged to be in use at that time in the English courts “ * * * amounts to nothing more than that the statute of limitations of that country does not run against the crown." The court then held “ * * * that in actions brought by the state, other than those for land, the statute of limitations will form a bar to the action.”

Then in an opinion announced by the Commission of Appeals and adopted by the Supreme Court on June 6, 1884, the court in Houston & T. C. Ry. Co. v. Travis County, 62 Tex. 16, where Travis County had sued the railway company for damages for the manner in which the company had constructed its railway crossing over a public highway the court held: “The policy of the state in regard to exempting the sovereignty from the operation of statutes of limitations has been construed by the supreme court to have been limited in those statutes to lands, and that personal actions in favor of the state were subject to be barred by lapse of time,” citing State v. Purcell, supra; Governor v. Allbright, 21 Tex. 753 and Governor v. Burnett, 27 Tex. 32, 33.

In 1924 the Waco intermediate appellate court in McKenzie v. Hill County, Tex.Civ.App., 263 S.W. 1073, 1074 (writ ref.) held:

“There is no authority that we have been able to find which holds that limitation will not run against the county for the recovery of money which goes into its general fund. We do not think it would be a proper construction to place on our statutes which would authorize or permit the county to sue its citizens on promiscuous claims years after the cause of action, if any, accrued. The same reasons apply why this.should not be permitted as are applicable between individuals. The evidence with reference to payments and defenses might be destroyed or witnesses might die, and individual citizens would then be liable to harrassment by lawsuits long after the proof of payment or proof of the unjustness of the claim had been lost.” (Emphasis added).

The Commission of Appeals, Section B, in 1931 in Linz v. Eastland County, Tex.Com.App., 39 S.W.2d 599, where the county had sued a bank closed for liquidation, the Commissioner of Insurance and Banking, and the Special Agent of the Commissioner to establish as a general deposit certain of its funds and have them classified as claims entitled to be paid out of the depositor’s guaranty fund, a plea of limitation was urged against the county. The court after stating that the county urged as a reply to such limitations pleas that the statute does not operate against a county when acting in a governmental capacity (and the funds sued for were held and dis-bursable only in such capacity) because the statutes of limitations do not apply to the state or its governmental agencies then held:

“It is the opinion of the members of the Supreme Court, on the authority of Bitter v. Bexar County (Tex.Com.App.) 11 S.W.(2d) 163; Harris County v. Charlton, 112 Tex. 19, 243 S.W. 460, 245 S.W. 644; and Houston & T. C. Ry. Co. v. Travis County, 62 Tex. [16] 18, that the statutes of limitations are available as against the county’s claim in so far as applicable to the county’s general fund.’’ (Emphasis added).

We admit we have found some difficulty in reconciling the holdings of the respective courts above cited and quoted from with Coleman v. Thurmond, 56 Tex. 514; Brown v. Sneed, 77 Tex. 471, 14 S.W. 248; and some of the statements in Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419, though we find no difficulty in distinguishing the actual holdings in the latter case with the cases heretofore cited.

In the last cited case a distinction may be found in that the suit involved school lands, and Sec. 6, Art. 7, Constitution of Texas, Vernon’s Ann.St., provides that counties hold their school lands and the proceeds thereof in trust for the public schools therein; the schools are institutions of the state, established in the counties as a part of the state’s governmental policy, maintained in part from taxes and other funds directly furnished by the state, so no limitations shall ever be available against the title of any county.

In Coleman v. Thurmond, title to land was involved, and the Supreme Court, of Texas in State v. Purcell, supra, had previously held in actions brought by the state, other than those for land, the statute of limitation will form a bar to the action.

Brown v. Sneed did not involve a suit against the county or one of its former officers but by intervention of the state a suit involving that sovereignty. In any event, the Supreme Court of Texas in Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213 has held:

“It is to be noted in this connection that, notwithstanding the fact that counties, as held in Bexar County v. Linden, [110 Tex. 339, 220 S.W. 763], supra, are essentially instrumentalities of the state, used ‘as efficient and convenient means for the discharge of the State’s duty in their regard to all the people,’ the general limitation statutes are with certain defined exceptions available in defense of suits by counties.”

Among the authorities cited in support of the statement just quoted are Houston & T. C. Ry. Co. v. Travis County, 62 Tex. 16; McKenzie v. Hill County, 263 S.W. 1073 (writ ref.); and Linz v. Eastland County, 39 S.W.2d 599, all of which we have previously cited and from all of which we have quoted.

In our case the jeeps were not used for any material purpose and certainly not for a part of the state’s governmental policy for all the people. Additionally, any money recovered would, by the process of elimination of the other statutory funds, go into the general fund. McKenzie v. Hill County, supra, and Linz v. Eastland County, supra, both hold that limitation will run against the county for recovery of money which goes into the general fund. We, therefore, hold that appellant’s contention that no limitation would ever run as to the cause of action for conversion asserted is not well taken.

Since we have held that limitation does run against the cause of action asserted, we now turn to the question of whether the two-year statute of limitation, Article 5526, or the four-year statute of limitation, Article 5527, is applicable.

“Texas decisions are unique in that both the primary contractual obligation view, * * * and the collateral security view, * * * are adhered to, the determination of which view controls in a particular case being dependent upon the wording of the official bond involved.” 18 A.L.R.2d, Sec. 7, p. 1199.

Whatever cause of action appellant has grows out of the former sheriff’s official bond. That bond provided he would faithfully perform and discharge all the duties required of him by law as sheriff of Hemp-hill County (not as director of the Civil Defense unit of the county). It also provided it would pay to the persons authorized by law to receive same all fines, forfeitures, etc., that he shall truly execute and make due return of all process and precepts to him lawfully directed, and pay over all sums of money collected by him by virtue of such process or precepts, shall faithfully perform all such duties as may be required of him by law, and shall pay to his county all monies illegally paid to him out of county funds. The clause “shall faithfully perform all such duties as may be required of him by law” obviously refers to the faithful performance of all such duties as sheriff.

It is readily observable that the conditions of such bond did not provide for an obligation to anyone other than for the failure of the principal in connection with his duties as sheriff, nor did the company which executed it contract to bind itself for any misconduct, malfeasance or misfeasance as director of some ancillary organization. Additionally, the bond covered the period only while he was sheriff of Hemphill County, and it is without contradiction that any act of conversion of the jeeps took place several months after he had resigned as sheriff and was serving as postmaster of Canadian. Appellant’s pleadings so assert.

An excellent discussion is made of the primary contractual obligation view and the collateral security view in 18 A.L.R.2d, Sec. 7, p. 1199, citing Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213; Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249 and many other cases. In both of the cases just cited the Supreme Court of Texas held the two-year statute of limitation applies and in Cowart v. Russell the court distinguished McKinney v. Robinson, 84 Tex. 489, 19 S.W. 699 and Throckmorton County v. Thompson, 131 Tex. 543, 115 S.W.2d 1102, which had applied the four-year statute of limitation. Therefore, the bond being conditioned only for the faithful performance of official duties of the sheriff, during his service as sheriff, applicable to the obligations created by statute, the collateral security view applies and is covered by the two-year limitation period.

Article 6003a, Vernon’s Ann.Tex. Civ.St., cited by appellant does not in our opinion furnish any aid to its contentions. Even though it provides that in suits on account of the defalcation of, or misapplication, or misappropriation of money by any public officer of the state, and that for all purposes of limitation such suits on official bonds shall be considered and treated as acts of debt founded upon a contract in writing and covered by the four-year statute of limitation, it also provides only for the period covered by such bonds. That period was during the time Mr. Rath jen was serving as sheriff, while any conversion, under the record here, was more than four months after he had resigned as sheriff.

We hold the general limitation statutes are available to appellees and that the two-year statute of limitations for conversion applies, which period had already run at the time the suit was originally filed.

Accordingly, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Appellant’s points are based on the error in the court’s judgment for defendants on the ground that the statutes of limitation were applicable to plaintiffs’ cause of action; in refusing to grant its summary judgment; on reversible error in abuse of discretion of the trial court in placing the county judge on the witness stand; and that the county attorney filed the suit upon his own motion without the consent or authority of the Commissioners of Hemphill County.

It is obvious that the limitation questions determined the law suit and those are the questions to which we devoted our considerable research and energies. We assumed without holding that the county attorney had the authority to file the suit on behalf of the county. Otherwise, the case would have been disposed of on those grounds. Additionally, the testimony of the county judge was not decisive of the limitation questions. Therefore, it is unnecessary to pass on whether the trial court abused its discretion in placing the witness on the stand.

We do not consider our opinion conflicts with the Eastland Court of Civil Appeals in Hemphill County v. Adams, Tex.Civ.App., 390 S.W.2d 546 (N.W.H.). That court was passing on summary judgment components alone and the county attorney’s affidavit denied everything alleged and every defense pleaded by the defendants therein. The Eastland court simply held such affidavit raised questions of fact.

If we are correct in our interpretations of the cases cited in our original opinion on the limitation questions and the extent of the bonds obligations of the surety company defendant, it would be simply supererogate to write further. We believe we are correct and the motion for rehearing is overruled.

      . Hemphill County v. Adams, Tex.Civ.App., 390 S.W.2d 546, reversing a summary judgment for the reason “that material issues of fact exist on the elements of conversion.”

      . State v. Purcell, 16 Tex. 305.


author: WALTER, Justice.

text:
    Harper RICE, Jr., et al., Appellants, v. GULF STATES PAINT COMPANY, Appellee.
    No. 4089.
    Court of Civil Appeals of Texas. Eastland.
    Aug. 12, 1966.
    Rehearing Denied Sept. 9, 1966.

      Powell, Tucker & Kain, Paul A. Tucker, Baker, Botts, Shepherd & Coates, Walter E. Workman, Houston, for appellants.
    Oldham & Lorance, Tom Lorance, Houston, for appellee.
   WALTER, Justice.

Harper Rice, Jr. filed suit against Gulf States Paint Company and Gulf States Retail Stores for damages for personal injuries sustained by him while using a toxic waterproofing product sold by the defendants. Trinity Universal Insurance Company had paid Rice $12,500.00 under the Workmen’s Compensation Act and intervened.

The court found as a matter of law “that on or about September 15th, 1958, the plaintiff, Harper Rice, Jr., used that product known as Golden Crescent Silicone Waterproofing Clear; that such product was manufactured and sold by the Gulf States Paint Company; that such product contained chemical substances which were dangerous and harmful to the human body; that the defendant Gulf States Paint Company failed to place on such product a label setting forth a warning that such product was dangerous or harmful to the human body; that such Gulf States Paint Company was negligent in failing to so label the product.”

The jury found that the failure of Gulf States to place a warning on the product was a proximate cause of Rice’s injury. They found a total amount of $60,250.00 in answer to the damage issues. The jury also found in favor of Rice on contributory negligence. Special issues eleven and twelve and the answers thereto are as follows:

“Special Issue No. 11
Do you find from a preponderance of the evidence that there was a risk of physical harm to the lungs involved in the use of the product with a high pressure apparatus ?”
Answer: “We do.”
“Special Issue No. 12
Do you find from a preponderance of the evidence that at the time and on the occasion in question such risk, if you have so found, was known and appreciated by Harper Rice, Jr.?”
Answer: “We do.”

Based on the answers to issues eleven and twelve, the court rendered judgment for the defendants.

The plaintiff and intervenor have appealed. They contend there is no evidence to support the answers to issues 11 and 12.

Harper Rice, Jr. testified substantially as follows: I am a painter and live in Houston. On September 15, 1958, I was working for Harry Hennies at the Bunker Hill Shopping Center. I started setting my scaffold boards about 8:00 o’clock. Mr. Terry of Gulf States delivered the silicone waterproofing to me. He did not tell me how to use it or give me any warnings at all. I poured some of this water repellent into the pot of my high pressure paint spraying equipment. I was wearing a De Vilbiss mask. I had never used a silicone naphtha waterproofing before. Mr. Hen-nies told me to spray the brick walls on the inside of the cafe. I sprayed the brick walls on the inside of a cafe for about twenty or twenty five minutes. I then felt a tightness in my chest and began coughing. I was taken to Dr. Ribelles and later went to the hospital. Dr. Overstreet later operated on my chest and removed a portion of one of my lungs.

I have been a painter for about 22 years. You might say that I am a professional painter. I have used rollers, brushes and spray equipment. I am familiar with the use of spray equipment and that it is important to wear a mask and I was wearing a mask while I was spraying that morning. I believe that if a person breathed enough paint over a period of 22 years it would probably hurt him.

The court found, as a matter of law, that the product in question was toxic and contained chemical substances which were dangerous and harmful to the human body and that Gulf States failed to label the product as such and that Gulf States was negligent in failing to so label the product. In Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, at page 379, (Sup.Ct.1963), the court said:

“The test in ‘no duty’ and volenti, however, is subjective: did plaintiff know and appreciate Comment ‘c’ § 496D of the Proposed Restatement of Torts, Second, supra, footnote 3, states, ‘The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.’ ”

Does this record contain any admissible evidence that Rice actually knew «that the product was dangerous ? The only evidence bearing upon the issue of whether Rice actually knew and fully appreciated the danger involved in using the waterproofing product came from Rice. In appellee’s counterpoint wherein it states “there was evidence, and sufficient evidence to support the jury’s findings to special issues number 11 and 12”, we are referred to no testimony from Rice which would support the jury’s answers. Appellee says that because Rice is an interested witness, his credibility should be submitted to the jury. That is a correct general rule. However, the volenti doctrine is an affirmative defense. Gulf States pleaded it and had the burden of raising the issues by the testimony of Rice or produce such facts as would in law charge him with knowledge of the danger and appreciation thereof. Gulf States does not here contend that Rice should be charged as a matter of law with knowledge and appreciation. Rice did not testify to any facts which could be construed to mean that he knew and appreciated the danger. Therefore, there is no evidence to support the answers of the jury.

Rice indicated that he knew that if a painter breathed enough paint over a period of 22 years it would probably hurt him. The damage to Rice’s lungs was caused by the use of this toxic product after using it for only 20 to 25 minutes. Can it be said that because Rice testified that if a painter breathed enough paint over a period of 22 years it would probably hurt him that he knew about the danger of this product which the court found as a matter of law to be dangerous and harmful to the human body? If he did not have actual knowledge of such danger, how could he exercise an intelligent choice of voluntarily exposing himself to the known and appreciated risk ? Justice Greenhill in Baylor Law Review Vol. XVI, Number 2, on the subject of “Assumption of Risk” says:

“In volenti cases, there must be an additional finding that the plaintiff voluntarily exposed himself to the known and appreciated danger.”

The judgment must, therefore, be reversed and rendered for the appellants, unless we sustain appellee’s cross assignment of error.

At the beginning of the trial, the court sustained Rice’s motion in limine that Gulf States’ counsel should not present to the jury the fact that Rice had received compensation benefits growing out of his injury of September 15, 1958. Appellee contends the court erred in failing to grant its motion for a mistrial because inter-venor’s attorney presented to the jury testimony that Rice had been paid in excess of $12,000.00 as workmen’s compensation benefits for the injuries received while using Gulf States’ waterproofing. We fail to find where this alleged error was in any manner called to the attention of the trial court. Our Supreme Court in West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960) held this to be necessary. However, we have examined the record and find that appellee waived this point.

The judgment is reversed and judgment is rendered for appellants.


author: MURRAY, Chief Justice.

text:
    John H. McCALL, Appellant, v. Arthur O. DYKES, Jr., Appellee.
    No. 14500.
    Court of Civil Appeals of Texas. San Antonio.
    June 15, 1966.
    First Rehearing Denied July 13, 1966.
    Second Motion for Rehearing Denied Sept. 21, 1966.
    Michael Rizik, Phillip Palmer, San Antonio, for appellant.
    Earle Cobb, Jr., San Antonio, for appel-lee.
   MURRAY, Chief Justice.

This is an appeal from a judgment of the County Court at Law No. 3, of Bexar County, Texas, for the sum of $640, together with interest, in favor of appellee, Arthur O. Dykes, Jr., against appellant, John H. McCall.

Appellant’s first contention is that the court erred in overruling his plea in abatement. This plea was based upon the contention that appellee’s pleadings were too vague and general to state a cause of action. The suit was brought upon a sworn account. The account was based partly upon a provision of a written contract for architectural services to be rendered by appellee, and providing that a reasonable fee would be due for services rendered to date of abandonment if such contract should be abandoned.

Appellant did not seek a ruling upon his plea in abatement and special exceptions, until the day the case was set for trial, at which time the trial court heard and overruled the same. The trial court permitted appellee to file an amended pleading in which he brought the contract into the case by adopting it by reference. There was no plea of surprise to this pleading and no objection to the introduction of the contract.

The court then heard the evidence and found in effect that the contract had been abandoned and that appellee was entitled to recover the sum of $640.00 for services rendered under the terms of the contract. The court did not err in overruling the plea in abatement and exceptions.

Appellant next complains because appel-lee was permitted to amend and plead the written contract by adopting it as a part of his pleadings. There was no error in this. The contract had first been pled by appellant.

The judgment rendered by the court is supported by the evidence, and it is affirmed.

On Motion for Rehearing.

Appellant in his motion for a rehearing says, “You will search in vain for any pleadings filed by Appellee wherein a written contract is even mentioned.” In this appellant is correct. The contract was plead by appellant in his “First Supplemental Answer” in the following language, to-wit: “in truth and in fact the relationship between Plaintiff and Defendant arises out of a duly executed contract dated February 10, 1965, in which the services to be performed by Plaintiff and the compensation to be paid by Defendant are set out in detail, and Plaintiff’s cause of action, if any he has, against Defendant, should be based on the covenants contained in said contract. Plaintiff is in possession of the original of said contract between Plaintiff and Defendant and demand is hereby made upon said Plaintiff to produce the original of said contract in Court at the time of the hearing of this cause or Defendant will introduce a photocopy of same.”

Appellee did produce this contract and introduced it in evidence. It was unnecessary for appellee to plead this contract when it had been so fully plead by appellant.

Appellant also states in his motion that the Court was in error in stating in its opinion, “The trial court permitted appellee to file an amended pleading in which he brought the contract into the case by adopting it by reference.” In this contention appellant is correct. The contract was brought into the case by appellant’s First Supplemental Answer, as above set out.

We are glad to make these corrections, but they in no way change our decision of the case.

We have carefully considered appellant’s motion for a rehearing and the same is overruled.


author: NYE, Justice.

text:
    Marie Janet SCARBOROUGH, Appellant, v. Houston A. SCARBOROUGH, Appellee.
    No. 247.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 11, 1966.
   OPINION

NYE, Justice.

This was an attempted appeal from a divorce action in the 36th District Court of Live Oak County, Texas. Judgment was rendered and signed on February 24, 1966. It contained no notice of appeal. A motion for new trial was filed March 19, 1966, more than ten days after judgment. The appeal bond was filed April 14, 1966, more than thirty days after judgment.

The filing of the motion for new trial after ten days from the rendition of judgment does not operate to extend the district court’s jurisdiction over the judgment and comes too late. Rule 329b, § 1, Texas Rules of Civil Procedure. The filing of a tardy motion for new trial cannot operate to extend time for filing an appeal bond under Rule 356, T.R.C.P., even though the late motion be considered and overruled by the trial judge. Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163 (1959). The notice of appeal given in the order overruling the motion for new trial also came too late. Rule 332, T.R. C.P. The appellant has failed to perfect her appeal because of her failure to timely file the notice of appeal and appeal bond. Curtis v. Carey, 378 S.W.2d 418, Tex.Civ.App. (1964); Drawe v. McGuffin, 355 S.W.2d 738, Tex.Civ.App. (1961).

Appeal dismissed.


text:
    Robert A. MARR, Appellant, v. O. W. CRADDOCK, d/b/a Craddock And Company, Agents, Appellee.
    No. 223.
    Court of Civil Appeals of Texas. Tyler.
    July 7, 1966.
    Rehearing Denied Sept. 22, 1966.

      Hollie G. McClain, Gilmer, for appellant.
    M. D. Carlock, Winnsboro, for appellee.
   DUNAGAN, Chief Justice.

This is a suit on an account. The appel-lee filed this suit in the nature of a sworn account and the appellant denied the account in toto under oath.

The appellee alleged in part that at the special instance and request of the appellant, founded on business dealings between the parties, he issued insurance policies and rendered services to appellant in the regular course of business on open account; that the appellant became bound to pay appellee on demand the sum of $281.94 and though often requested to do so, appellant had not paid said sum or any part thereof. Ap-pellee’s petition also contained a plea for attorney’s fees in the sum of $75.00, being the total sum of $356.94.

A trial was before the court, without a jury. The trial court rendered judgment for appellee in the sum of $356.94, being the sum of $281.94, the amount of the debt, and the sum of $75.00 attorney’s fees, with interest at the rate of six per cent per annum. Appellant appealed.

Appellant has grounded his appeal on the following Points of Error:

“I.
“There is no evidence to show that the appellant owed appellee the sum of $356.94.
“II.
“The appellee did not introduce any competent evidence to show that appellant owed any amount.
“III.
“The appellee did not prove the necessary elements required in order for him to recover.”

In his brief the appellant contends that there was no proof of delivery of the insurance policy (subject of suit) nor was there any proof that there was an agreement as to price, or that the account was just.

No findings of fact or conclusions of law were filed by the trial court and the case having been tried to the court without the aid of a jury, we must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and in doing so will consider only the evidence most favorable, and disregard that opposed, to these issues. Boucher Co. v. City Paint & Supply, Inc., 398 S.W.2d 352, (Tex.Civ.App.) 1966, n. w. h.; Daggett v. Neiman-Marcus Company, 348 S.W.2d 796, (Tex.Civ.App.) 1961, writ ref., n. r. e.; Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357, (Tex.Civ.App.) 1963, n. w. h.; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; and 23 A.L.R.2d 1114.

Appellee filed a verified account showing that appellant was indebted to him in the sum of $281.94. This verified account was denied under oath by appellant, thus appel-lee was confronted with the necessity of establishing each and every item of its account by legal and competent evidence. This he failed to do. Boucher v. City Paint & Supply, Inc., supra; Daggett v. Neiman-Marcus Company, supra; J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325, (S.Ct.) 1941; Burtis v. Butler Bros., 243 S.W.2d 235, (Tex.Civ.App.) 1951, n. w. h.; Opryshek v. McKesson & Robbins, Inc., supra.

This court speaking through Associate Justice Moore in Parker v. Center Grocery Company, Inc., 387 S.W.2d 903, (Tex.Civ.App.) 1965, n. w. h., held that where a defendant denied the account in toto by filing its sworn denial under the provisions of Rule 185, Texas Rules of Civil Procedure, that the effect of the defendant’s sworn denial was to put the plaintiff on proof of its case by a preponderance of the evidence as at common law. That the essential elements of such proof are, inter alia, (1) sale and delivery of the merchandise and (2) that the amount of the account is just, or in other words, that the prices charged are in accord with an agreement or in the absence of an agreement that they are usual, customary or reasonable.

Upon a careful search of the record, we fail to find any evidence that the charges for the premiums by appellee for the insurance policies (the subject of this suit) and the services rendered in connection therewith, were either usual, customary, standard or reasonable. Nor do we find any testimony as to an agreed purchase charge with respect to the premiums for said insurance policies. In the absence of an agreement by appellant to pay any particular charge for premiums, it was essential to appellee’s case against appellant to offer proof on the point; but none was offered. Boucher v. City Paint & Supply, Inc., supra; Opryshek v. McKesson & Robbins, Inc., supra; Dodson v. Kemper Military School, 42 S.W.2d 288, (Tex.Civ.App.) 1931, writ dism.; Trice Contract Carpets & Furniture, Inc. v. Martin, 334 S.W.2d 554, (Tex.Civ.App.) 1960, n. w. h. Under the record before us, this case must be reversed. Appellant is requesting this court to render judgment for the appellant.

It is the general rule in civil cases that, when the Court of Civil Appeals reverses the judgment of the trial court for lack of evidence in support thereof, it will not render judgment unless it appears that the case in that respect has been fully developed. In such cases, when it does not appear that the facts have been fully developed, the judgment of the appellate court should be one of remand and not one of rendition. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, 1936; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458, 1948; National Casualty Co. v. Hampton, 216 S.W.2d 614, (Tex.Civ.App.) 1949, writ ref., n. r. e.

Judgment reversed and remanded to the trial court.