author: CLAUDE WILLIAMS, Justice.

text:
    James P. KELTY et ux., Appellants, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 16495.
    Court of Civil Appeals of Texas. Dallas.
    May 21, 1965.
    Rehearing Denied June 18, 1965.

      Carter, Gallagher, Jones & Magee and Ben Warder, Jr., Dallas, for appellants.
    Thompson, Knight, Wright & Simmons, Frank Finn, Jr., and George C. Chapman, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

James P. Kelty and wife, Evelyn Kelty, appeal from a summary judgment denying Mrs. Kelty workmen’s compensation benefits. The trial court based its judgment on the specific finding that at the time and on the occasion Mrs. Kelty sustained personal injuries she was not in the course and scope of her employment for her employer within the meaning of the Workmen’s Compensation Law of Texas.

FACTS

There is practically no controversy as to the evidential facts which were submitted to the trial court in the form of depositions, affidavits and exhibits. Mrs. Kelty had been an employee of J. C. Penney & Company at its Casa View Shopping Center store in Dallas for about four years at the time of her accident. Her work was in the alterations department. During her working hours she would stay in her department until called upon to make an alteration elsewhere in the store. She was paid $1.75 an hour, but she was not paid for her lunch hour which extended from 12:00 to 1:00 o’clock. During the one-hour interval she was free to go wherever she wanted to go and do whatever she wanted to do. The accident in question occurred on January 26, 1963 at 12:55 P. M. She had left the store at 12:00 o’clock noon and drove her own automobile home and had lunch. J. C. Penney & Company did not provide her with means of transportation to go home and back nor did they pay her anything for such transportation. Upon returning from her home she parked her car in a parking area at the rear and to the north of the J. C. Penney building. The weather was bad and it had sleeted the night before and that morning everything was iced over. After alighting from her automobile Mrs. Kelty proceeded in a general southerly direction on the sidewalk toward the back or rear entrance on the east side of the J. C. Penney building where she normally entered the building to go to work. Her sole purpose in entering the building on that occasion was to return to her duties as an employee of J. C. Penney & Company. At a point about ten to twelve feet from the rear entrance she slipped and fell on the icy sidewalk and sustained personal injuries. The sidewalk where Mrs. Kelty fell was immediately adjacent to the J. C. Penney building and was used by the general public and by the employees entering and leaving the store by the back entrance.

Garland E. Sorley, the manager of the J. C. Penney store in question testified by deposition that a sidewalk completely circles the building occupied by J. C. Penney & Company under its lease; that there is an entrance at the front of the store and one at the back, both of which are used by employees in entering and leaving the store. He said that in entering or leaving the store, the employees are necessarily required to walk upon the sidewalk which circles the building. He said that on occasions he had helped clean the sidewalk surrounding the store for the benefit of the public and his employees; that on the day Mrs. Kelty fell it was a rather bad day and that he and other J. C. Penney employees had helped clean the area early that morning before the people came to work. He also said that after Mrs. Kelty’s fall he instructed the janitor to clean up the area again. In his affidavit attached to the motion for summary judgment, Mr. Sorley made general conclusions to the effect that Mrs. Kelty was not acting in behalf of J. C. Penney at the time of her fall; that she was not upon the premises leased by J. C. Penney, nor was the fall at a place maintained or controlled by J. C. Penney. He further said that her fall was on a sidewalk owned by the landlord, Amco Builders, and the sidewalk was open to the general public and was under the supervision and control of the landlord. He said that the public in general was subject to the risks or hazards from the ice on the sidewalk where Mrs. Kelty fell.

Mrs. Edna E. White, a saleslady at the Casa View store, testified by deposition that any employee leaving or entering the store would be required to use the front or back entrance and the sidewalk that circles the building. She said that during the time she had been working at the Casa View store she had seen the manager and other employees of J. C. Penney & Company sweeping and cleaning the walk in that area and especially when the weather was bad the employees had helped clear the ice in front and in back of the building.

The lease executed by J. C. Penney & Company, as lessee, and Amco Builders, as lessor and landlord, provided, inter alia:

“TERM. 1. TO HAVE AND TO HOLD the said premises, together with all and singular the improvements, appurtenances, rights, privileges and easements thereunto belonging or in anywise appertaining, unto the said Tenant for a term * *
* ⅜ * * * *
“Landlord further covenants and * * that if the Tenant shall discharge the obligations herein set forth to be performed by the Tenant, the Tenant shall have and enjoy, during the term hereof, the quiet and undisturbed possession of the demised premises, together with all appurtenances appertaining or ap-pendant thereto.”
* * * * * *
“That the Landlord shall be responsible for and keep all parts of the demised premises, the appurtenances thereto (which shall include all sidewalks abutting on the demised premises) and the building * * *, with its appurtenances, in good, safe, tenantable condition, sightly in appearance, and in good order and repair.”
* * * * * *
“ * * * Tenant shall have the continuous right to use any rights of way which are in use on the date of the execution of this lease leading to and from any rear, front or side entrances to the demised premises * *
* * * * * *
“The said parking areas, sidewalks, aisles, streets, and driveways shall not he fenced or otherwise obstructed and shall be kept open at all times for the free use thereof as intended herein.”

Another provision of the lease provided that the landlord agreed to keep the sidewalks, aisles, streets and driveways in the said Casa View Shopping Village in good order and repair and to keep the sidewalks and streets properly drained and in a clean and sanitary condition. There is no evidence that the landlord or its agents, servants or employees did anything concerning the performance of these particular covenants, but the J. C. Penney & Company manager testified that on a number of occasions, including the date in question, he and his employees had cleaned the sidewalks near the entrances to the building.

OPINION

Appellants contend that the trial court erred in rendering summary judgment for appellee insurance company because the pleadings, depositions, affidavits and exhibits conclusively demonstrate the existence of a genuine issue of fact as to whether Mrs. Kelty was acting within the course and scope of her employment at the time she sustained her accidental personal injuries. Appellee counters with the proposition that Mrs. Kelty was shown, as a matter of law, not to be acting within the scope and course of her employment and therefore no fact issue was presented. We agree with appellants that under the particular factual situation here presented that the issue of course and scope of employment was one of fact and not of law.

Two well recognized rules of law govern us in our consideration of this appeal. First, we are dealing with a construction to be placed upon the Texas Workmen’s Compensation Act, and the courts of our state have repeatedly stated that this remedial statute should be given a liberal construction in favor of the injured employee.

It must also be observed that we are here dealing with the propriety of the granting of a motion for summary judgment. Rule 166-A, Texas Rules of Civil Procedure. Any doubts existing concerning the correctness of the granting of the motion for summary judgment must be resolved against the moving party. The movant has the burden to conclusively negative the existence of any genuine issue in regard to material and controlling facts. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, affirming this court in 243 S.W.2d 220; Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534.

The question to be decided, in the light of these rules, is whether appellee insurance company sustained its burden of demonstrating, as a matter of law, that Mrs. Kelty was not acting within the course and scope of her employment with J. C. Penney & Company at the time she sustained her accidental personal injuries.

Section 1 of Art. 8309, Vernon’s Ann. Civ.St. provides that the term “injury sustained in the course of employment” shall include “all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

The rule has been repeatedly announced in Texas that an injury received by an employee while using the public streets and highways in going to or returning from the place of employment is not compensable, the rationale of the rule being that in most instances such an injury is suffered as a consequence of risk and hazards to which all members of the traveling public are subject rather than risk and hazards having to do with and originating in the work or business of the employer. Smith v. Texas Employers’ Insurance Ass’n, 129 Tex. 573, 105 S.W.2d 192; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210; Whisenant v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 354 S.W.2d 683; Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350.

There are well defined exceptions to this general rule. In American General Ins. Co. v. Coleman, supra, the Supreme Court discusses three of the exceptions as being: (1) An injury incurred in going to and from work where the means of transportation is furnished by the employer; (2) so also where the employer pays another to transport the employee to and from his work; and (3) so also where the employee, in going to or from his employment, undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the express or implied approval of his employer. See also Texas General Indemnity Co. v. Bottom, S.Ct., 365 S.W.2d 350; Jecker v. Western Alliance Ins. Co., S.Ct., 369 S.W.2d 776. Neither of these exceptions are applicable to the instant case.

Another exception, however, which is applicable is found in the so-called “access” cases. In these cases a workman who has been injured at a place intended by the employer for use as a means of ingress apd egress to and from the actual place of the employee’s work has been held to be in the course of his employment. The courts have said that these access areas are so closely related to the employer’s premises as to be fairly treated as a part of the employer’s premises. We shall discuss the principal authorities dealing with this exception to the general rule.

The leading case in Texas dealing with the “access” exception, and one which we think is controlling of this appeal, is Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402. In that case the employee was employed by Hartburg Lumber Company, which company operated and owned a sawmill in Hartburg, Texas, which was a lumber town, consisting solely of the employer’s facilities. A railroad track ran through the town and a part of the lumber company’s facilities was situated on either side of the right-of-way. A public road ran parallel to the railroad tracks and there was a dirt crossing from the public road over the railroad tracks which led to the various buildings on the property of the lumber company. This crossing was used by any member of the public desiring to go to any part of the lumber company facilities. On the day in question the decedent quit work at noon, went home for lunch and while returning to the lumber company plant for the purpose of resuming his employment, was struck and killed by a train at the crossing in question. The insurance company contended (as it does here) that the decedent’s death did not originate in the work or business of his employer and that at the time of his fatal injuries he was not in or about the furtherance of the affairs or business of his employer. The Supreme Court, in an extensive opinion, reviewed the authorities from other states and especially Latter’s Case, 238 Mass. 326, 130 N.E. 637, 638, and arrived at the conclusion that the injury and death under such circumstances were compensable under the Texas Act. The court held that the railroad crossing bore so intimate a relation to the lumber company’s premises that it could hardly be treated otherwise than as a part of the premises. The court pointed out that the lumber company had rights in and to the crossing which was used in connection with the lumber company’s business, whether by employees or by members of the public. In announcing the “access” doctrine Justice Greenwood said:

“Was Behnken engaged in or about the furtherance of the affairs or business of his employer when he received the injury causing his death ? He was upon the crossing provided as the means of access to his work solely because he was an employee. He encountered the dangers incident to use of the crossing in order that he might perform the duties imposed by his contract of service. Without subjecting himself to such dangers he could not do what was required of him in the conduct of the lumber company’s business. He had reached a place provided and used only as an adjunct to that business, and was injured from a risk created by the conditions under which the business was carried on. To hold that he was not acting in furtherance of the affairs or business of the lumber company would be to give a strict interpretation to this remedial statute, which should be liberally construed with a view to accomplish its purpose and to promote justice.
“The injury to Behnken comes within recognized exceptions to the general rule, refusing compensation to employees for injuries sustained on the way to or from work, under acts providing compensation for injuries received in the course of employment.”

In Texas Employers’ Ins. Ass’n v. Anderson, Tex.Civ.App., 125 S.W.2d 674, wr. ref., this court followed the rule announced in Behnken, supra. In that case the employee was killed while crossing the railroad track near his place of employment. In discussing the question of the situs of the injury Justice Looney said:

“Its use as a means of ingress to and exit from his place of work not only conduced to his safety and convenience, but contributed to the promptness and efficiency with which he was enabled to discharge the duties owing his employer; hence the reason and necessity for his presence upon the railroad track (that portion of the pathway leading over the railroad right of way) when injured, in our opinion, had to do with, originated in and grew out of the work of the employer; and that, the injury received at the time, place, and under the circumstances, necessarily was in furtherance of the affairs or business of the employer.”

Again, in Texas Employers’ Ins. Ass’n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, err. ref., this court had occasion to follow the “access” doctrine. In that case Chief Justice Jones quoted from the Supreme Court of the United States in the case of Bountiful Brick Company et al v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402, as follows:

“ ‘And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work' is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached.’ ”

As was stated by the court in Payne v. Wall, 76 Ind.App. 634, 132 N.E. 707, 49 A.L.R. 427:

“ * * * a servant’s employment is not limited ‘to the exact moment when the workman reaches the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Whether an employee, in going to or returning from the place of his employment, is in the line of his employment, is governed and controlled by the particular circumstances and facts of each case. There must, however, be a line beyond which the liability of the employer cannot continue. Where that line is to be drawn is usually a question of fact.’ ”

While exact factual situations are difficult to find, especially having to do with snow and ice in Texas, the case of Heacker v. Southwestern Bell Telephone Co., 270 F.2d 505 (Fifth Circuit, 1959) is closely in point. There the employee of the telephone company, on a cold and icy day, was walking on the sidewalk between the hotel where she was staying and the telephone exchange at Denison, Texas. Travel was rendered difficult due to the accumulation of ice and snow on the sidewalk. The employee slipped on the ice on the sidewalk in front of the telephone building as she was entering the same to perform her duties. The court, in reversing a summary judgment for the employer in a negligence case, held that the place of the accident was, for all practical purposes, a part of the premises of the telephone company and that the employee had no alternative but to attempt to cross the hazardous sidewalk fronting the premises. The court said:

“In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute.”

For other cases dealing with the subject see Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S.W.2d 388, err. ref.; Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Employers’ Mutual Liability Ins. Co. of Wis. v. Konvicka, 197 F.2d 691 (Fifth Circuit, 1952); Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S.W.2d 321 (1945); Barnett v. Britling Cafeteria Co. (1932) 225 Ala. 462, 143 So. 813, 85 A.L.R. 85; Larsen’s Workmen’s Compensation Laws, Vol. 1, Sec. 15.31, p. 205; Lawler, Texas Workmen’s Compensation Law, Sec. 101, pp. 215, et seq. While not dealing precisely with “access” cases, see also the recent decision of the Supreme Court of Texas in Shelton v. Standard Ins. Co., March 31, 1965, Tex., 389 S.W.2d 290.

The record in this case presents issuable facts which could support a jury finding that Mrs. Kelty’s injuries were sustained at a place so closely connected with the place of her employment as to be, in effect, a part thereof, especially in providing her rights of access to her employment. The sidewalk where she fell was, indeed, an appurtenance to the premises leased by her employer. The parties to the lease in question specifically designated all sidewalks to be appurtenances to the leased premises. While it is true the lease delegates the duty and responsibility to the landlord to keep the sidewalks properly cleaned and drained there is no evidence that the landlord fulfilled this obligation. On the other hand, there is positive evidence that the lessee, Mrs. Kelty’s employer, did assume the responsibility for the proper maintenance of the sidewalk in question by repeatedly cleaning the same and undertaking to remove the ice from the sidewalk even on the very day the accident occurred. Such testimony, in our opinion, is relevant to the issue that Mrs. Kelty’s employer assumed the duty of providing a safe means of ingress and egress to and from the premises where her work was to be performed.

Our courts have repeatedly stated that whether an employee was in the course of his employment when he received an injury is ordinarily a question of fact. Federal Underwriters’ Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791; Liberty Mutual Ins. Co. v. Nelson, 142 Tex. 370, 178 S,W.2d 514; and Texas Employers’ Ins. Ass’n v. Davidson, Tex.Civ.App., 295 S.W.2d 482. Also, it is well settled that each case must be determined upon its own particular facts. Texas Employers’ Ins. Ass’n v. Anderson, Tex.Civ.App., 125 S.W.2d 674, wr. ref.

While we do not hold that under the peculiar facts in this case Mrs. Kelty was acting within the course and scope of her employment at the time she sustained her injuries, as a matter of law, we do hold that the evidence presented by appellee insurance company does not compel the opposite finding as a matter of law. We hold that under the peculiar facts and circumstances in this record that appellee has failed to sustain its burden under the summary judgment proceeding (Rule 166-A, T.R.C.P.) and therefore appropriate issues, together with proper instructions, pertaining to the question of course and scope of employment should have been submitted to a trier of fact.

Appellants’ points are sustained and the judgment of the trial court is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Effie Nellie DAWSON, Appellant, v. STATE of Texas et al., Appellees.
    No. 16473.
    Court of Civil Appeals of Texas. Dallas.
    April 23, 1965.
    Rehearing Denied June 18, 1965.

      Esir Tobolowsky, Dallas, for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Jerome E. Dawkins and Don R. Stodghill, Asst. Dist. Attys., Dallas, for ap-pellees.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

In this condemnation case the appellees State of Texas and County of Dallas condemned 6,700 square feet of a tract of 16,500 square feet owned by appellant Effie Nellie Dawson. The commissioners awarded $3,500 as damages, apportioned as follows: $3,407.36 to appellant, $67.51 to the City of Dallas and $25.13 to Dallas County. These amounts were paid into court and the $3,407.36 was withdrawn by appellant as authorized by Vernon’s Ann.Civ.St. art. 3268. In the county court trial the jury found in response to special issues that: (1) the value of the land taken, considered as severed land, was $3,002; (2) the value of the remainder immediately before the condemnation was $8,498; and (3) the value of the remainder immediately after the condemnation was $11,500. Judgment was rendered on this verdict that appellees recover of appellant $498 (the excess of the commissioners’ total award of $3,500 over the value found by the jury).

Appellant’s first point of error on appeal is as follows:

“The court erred in not granting appellant a new trial because the jury was guilty of prejudicial, material misconduct in that the jury did not answer the three Special Issues submitted to it from the evidence, but on the contrary they first agreed upon the amount of money they wanted appellant to receive and then deliberately endeavored to answer the Special Issues in a manner that would entitle appellant to a judgment for that amount and no more, and injury probably resulted to the rights of appellant from said misconduct.”

Four of the six jurors testified on the hearing of the motion for new trial, three of them to the effect that before answering any of the special issues the jury reached the conclusion that appellant’s entire property was worth $11,500 before condemnation, that the remaining 9,800 square feet had increased in value as a result of the condemnation and was then worth $8,498, and that appellant, having owned property worth $11,500 before condemnation and property worth only $8,498 after condemnation, had suffered a net loss or damage consisting of the difference, or $3,002, which amount they wrote in as their answer to Special Issue No. 1.

This of course was a completely unauthorized and improper method and completely disregards the court’s instructions and the wording of the special issues. It has the effect of offsetting against the compensation to which she would be entitled for the land taken the enhancement in value of the land remaining. Our Supreme Court has held that this is improper. “It is of course settled that enhancement in market value of the residue of the land by reason of ‘special benefits’ is a legitimate offset to damages thereto, but not to the value of the part actually taken.’ State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. See also Steele v. City of Anson, Tex.Civ.App., 229 S.W.2d 948, no wr. hist.

It is true that the jurors also testified that they considered and discussed the testimony of the expert witnesses on both sides and the prices that had been put on the blackboard and were satisfied that $3,002 represented the fair value of the land taken. The foreman, Mr. McKeel, testified that the jury “went” by the figures on the blackboard that they remembered; that they discussed the great “differential” between the testimony of the witnesses and that they “kind of levelled it off”; that they discussed the testimony of values on a square foot basis and “determined which one was the closest to the value we thought her property was before they took it.” Another juror, Mr. Herod, testified that everybody got a scratch pad and “started figuring from the board, the high figures and the low figures”; that “you had your witnesses that said it was worth so and so and they said it was worth so and so. Their witnesses had the sales conclusive (sic) and we kind of split the middle, so to speak, tried to give her a fair and just price * * * of the land.” All of the jurors who testified said that in reaching their verdict they followed the law and the evidence.

Yet, it is quite clear from all of the testimony of the jurors that in fact their answer of $3,002 to Special Issue No. 1 was arrived at by subtracting the enhanced value of the remainder ($8,498) from the agreed value of the entire tract before condemnation ($11,500), and that, having agreed on the amount ($3,002) they thought appellant should receive, they proceeded to answer the three issues in such manner as to give her that amount “and no more.” This is spelled out very plainly in the testimony of the jury foreman, Mr. McKeel, on pages 32 and 46, and in the testimony of juror Herod on pages 65 and 66, of the testimony given at the hearing of the motion for new trial. No juror disputed this. It is also quite obvious from the jurors’ testimony that the answers to Special Issues Nos. 2 and 3 were contrary to what the jury had in fact agreed upon. They had agreed (and this appears without dispute) tha- the enhanced value of the remainder after condemnation was $8,498, but they answered $8,498 to Special Issue No. 2, which inquired as to the value of the remainder immediately before condemnation. They agreed that $11,500 was the value of the entire tract before condemnation, but answered Issue No. 3 by giving that figure as the value of the remainder after condemnation.

Appellees argue that there was a conflict in the testimony as to whether misconduct occurred, and that it must be presumed from the overruling of the motion for new trial that the trial court found that no misconduct occurred, which decision is binding on appeal, citing Brawley v. Bowen, Tex.Sup.1965, 387 S.W.2d 383. However, we find no actual conflict in the evidence. All of the jurors who testified were in agreement as to the improper method employed in answering the issues. The facts that in doing so they considered the testimony of the expert witnesses and discussed their widely divergent opinions on values, and even considered the values on a square foot basis, and felt that they were giving appellant a fair ,and just price for her land, do not present a conflict. They are entirely consistent with the improper approach used by the jury; they probably helped the jury arrive at the amount they wanted appellant to have as her net loss. Their notion of a “fair and just price” for the land taken evidently included the thought that appellant should give appellees credit for the increase in value of her remainder caused by the condemnation. Therefore, it is our view that there was no dispute as to the occurrence of misconduct.

We are now quite well convinced by a careful study of all the testimony of the four jurors who testified that the verdict was arrived at by a method so contrary to the law and the court’s instructions that it should not be permitted to stand unless we can say that no harm was shown to have been caused to appellant thereby. Crawford v. Consolidated Underwriters, Tex.Civ.App., 323 S.W.2d 657, wr. ref. n. r. e.

This latter question now becomes one of law. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. As it appears quite clearly that the jury’s unorthodox method of answering the special issues has the effect of making the finding of value of the land taken dependent, to some extent at least, upon the agreed enhancement of the remainder after condemnation, it is obvious that injury probably resulted to appellant. Crawford v. Consolidated Underwriters, 323 S.W.2d 657, 659, wr. ref. n. r. e.; Texas Employers Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921. We determine this “as a matter of our judgment in the light of the record as a whole.” Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115, 120. The first point of error is sustained.

Appellant’s second, third and fourth points of error attack the answers to the three special issues as being against the overwhelming weight and preponderance of the evidence. Having already held that the method by which these findings were reached was so contrary to the law that the judgment based thereon must be reversed, we consider it unnecessary to pass upon these points.

Appellant’s fifth and last point is that the judgment is excessive in that the court, in determining the excess of the commissioners’ award over the verdict, charged appellant with the full $3,500 awarded by the commissioners whereas she was awarded and withdrew only $3,407.36 thereof. Appellant points out that on the trial there was no proof that the small amounts awarded to the City and County by the commissioners were actually taxes which were a lien on the land, or for which appellant was personally liable, or that she had not previously paid the same. As the record contains neither proof nor stipulation on the matter, the point must be sustained.

We reverse the judgment and remand the case for another trial.

Reversed and remanded.


author: BELL, Chief Justice.

text:
    Kay Morgan MELTON, Appellant, v. Ray MILLER et al., Appellees.
    No. 14583.
    Court of Civil Appeals of Texas. Houston.
    May 27, 1965.
    Rehearing Denied June 17, 1965.

      William H. Scott, Jr., Houston, for appellant.
    Urban, Coolidge & Pennington, Bryan W. Scott, Houston, for appellees.
   BELL, Chief Justice.

Suit was brought by appellees, owners of lots in Westwood, Section 5, an addition in the City of Houston, against appellant, the owner of Lot 18 in Block 1 of the addition, seeking a mandatory injunction requiring the removal of a carport that had been built by appellant a distance of 24 feet 6 inches over the building line in violation of restrictions applicable to the addition. Appellant pled waiver by appel-lees, abandonment and laches. At commencement of trial appellant admitted ap-pellees were entitled to recover except as their cause of action could be defeated by her affirmative pleas upon which she had the burden of proof. Under Rule 266, Texas Rules of Civil Procedure, she asked and was allowed the right to open and close the evidence and argument. Trial was to a jury, but at the conclusion of the evidence by the defendant, the trial court, on proper motion, withdrew the case from the jury and rendered judgment requiring removal of the carport.

The action of the trial court was correct unless a fact issue was raised as to waiver, abandonment or laches, because of appellant’s admission of her violation of the valid restriction.

Appellant lived on O’Meara Street. Her house would be one house west of Woodwind. The latter street goes all the way through the addition. O’Meara is not a through street. Most people in the addition go down Bellfort, which is the street north of O’Meara, to Stella Link in order to travel to downtown Houston. In August, 1961, appellant and her then husband had the carport built at a cost of about $750.00. The construction required about four days. Appellant said she discussed building it, before work was commenced, with the neighbor on either side of her home and one across the street. They had no objection. None of these persons are named parties to this suit. She knew the addition was restricted. She had no actual knowledge of the particular restriction. She had constructive knowledge because the restrictions were recorded. The carport remained until the middle of September, 1961, when it was so badly damaged by hurricane Carla that it had to be replaced. It was rebuilt in October, 1961, at a cost of about $750.00. Appellant testified that no one ever complained about the structure until she received a letter in April, 1962, from a man who did not live in the addition. He pointed out that the carport built as it was, over the building line, violated the restrictions. She stated she would not have built it if anyone had complained before it was built. She never talked to anyone, except the above mentioned neighbors, before building it. She testified she would not have rebuilt it after Carla if anyone had complained, but would have kept her insurance money. None of the appellees said anything to her to lead her to believe it was not all right to build the carport where it was built or to rebuild it.

Mr. Miller, one of the appellees, testified he first became aware of the carport just after Carla when he observed it in its damaged condition when he was riding around the addition to observe damage done by the storm. He has never talked to appellant.

In June, 1962, a letter was written appellant by attorneys for appellees calling attention to the violation and calling on her to remove the structure. Suit was filed in January, 1963.

None of the appellees has ever lived on O’Meara Street. There is no evidence to show that any of the appellees, except Mr. Miller, ever actually knew of the violation until just prior to filing suit. There is no evidence of any other carport or any structure in the addition being built in violation of the restriction by other persons in the addition. Some evidence of the existence of other carports was offered but it was excluded because it was not contended they extended over the building line. The violation does not consist in building a carport but rather in building it 24 feet 6 inches over the building line.

Clearly there was no evidence of probative force to show abandonment of the restriction or waiver generally because there is no evidence of any other violations of this restriction.

The next question is whether there is evidence of probative force to show appellees waived this particular violation by théir conduct with respect to this one violation. We take it that this is based purely on action of appellees in not stopping the original construction and later the reconstruction. There is no evidence that anyone except Miller knew of the violation and he did not know of it until September, 1961. None of the other ap-pellees lived on O’Meara Street and the evidence affirmatively shows this is not a through street that the appellees would likely travel. Certainly, they would not travel it in going to and from downtown Houston. They would travel on Woodwind and Bellfort and then Stella Link. We do not think they were charged with notice of the presence of the carport. Their homes were some distance away. Even if there was waiver by Miller, there is no evidence showing there was by the other appellees. There must be waiver by all of them. Rudy v. Southampton Civic Club, Tex.Civ.App., 271 S.W.2d 431 (CCA), ref., n. r. e.; Faubian v. Busch, Tex.Civ.App., 240 S.W.2d 361 (CCA), ref., n. r. e. The burden of proving waiver is on the appellant. The facts certainly show no affirmative act that could tend to lead appellant to believe, before she built or rebuilt the carport, that there would be no objection to the violation.

Laches is also relied upon. Lach-es is not dependent alone on the passage of time. Whether a party is precluded from enforcing a right depends on whether under all facts and circumstances it would be inequitable to enforce the right. Here all evidence shows that no affirmative conduct by appellees caused appellant to build or rebuild the carport. Appellant so admitted. After rebuilding she did nothing to her detriment. She admitted that after it was built she would not have removed it. The result is that the delay since then does not suffice to establish laches. Appellant says that if anyone had complained she would not have rebuilt but would have kept her insurance money. Appellees, other than Miller, cannot be said to be guilty of laches because there is no showing they knew of the carport being built or rebuilt. Appellant says they should have discovered it. We think not. She knew the subdivision was restricted and in law was charged with knowledge of the particular restriction violated. Appellees did not mislead her. In 30 C.J.S., Equity, § 117, p. 539 the rule is stated:

“It is not for a wrongdoer to impose extreme vigilance and promptitude as conditions to the exercise of the right of the person injured. So the doctrine of laches does not apply where defendant has acted in open and known hostility to plaintiff’s rights and has been misled by no apparent acquiescence on plaintiff’s part; the law does not demand the utmost exertion of diligence in repelling a hostile invasion of one’s rights deliberately undertaken with full knowledge of all the facts.”

See also Arrington et al v. Cleveland, Tex.Civ.App., 242 S.W.2d 400 (CCA), writ refused.

Affirmed.


author: WILSON, Justice.

text:
    H. E. BUTT GROCERY COMPANY, a Corporation, Appellant, v. Aaron H. RUSSELL and wife, Velma H. Russell, Appellees.
    No. 4367.
    Court of Civil Appeals of Texas. Waco.
    June 3, 1965.
    Rehearing Denied June 17, 1965.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellees.
   WILSON, Justice.

Plaintiff, a customer, recovered judgment for personal injuries in this “slip and fall” case based on jury findings that she slipped on lettuce on the floor of defendant’s grocery store; that defendant “knew that food was likely to get on the floor” at any moment during rush hours; and that defendant’s failure to inspect the floor in the area “as often as same would have been inspected by a person of ordinary prudence under the same or similar circumstances” was a proximate cause of plaintiff’s injuries.

The first 22 of defendant’s 73 points present the contentions that there is no evidence it placed the lettuce leaf on the floor, or knew it was there; that there is no evidence the leaf was on the floor for such length of time that defendant could or should have discovered it. There is no such direct evidence; consequently, defendant says there is no showing it failed to exercise ordinary care in inspecting the premises. Plaintiff’s answer is that circumstances show the lettuce was on the floor for a sufficient length of time that constructive notice is established.

Defendant’s store manager testified he did not instruct any employees to inspect the area where plaintiff testified she slipped between 5:00 P.M. and 6:00 P.M., “a busy time.” Plaintiff’s fall was near the checkout counter as she started with her purchases to the front door where there was heavy customer traffic, she testified. The piece of lettuce was larger than her hand. Her testimony was that she did not know how long it had been there, but it had dark spots and “had been stepped on by somebody else’s heel because it was mashed, you know, bruised on the other side.” She did not see it before she stepped on it.

These circumstances did not raise an inference that the lettuce leaf had been on the floor for a sufficient time to impose constructive knowledge of its presence upon defendant. They are equally consistent with an inference the leaf had been dropped and stepped on a few seconds, or at any other arbitrary and unknown period of time before plaintiff slipped. This holding is not inconsistent with that in H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, writ ref. n.r.e., where a wet place on the floor was “dusty, grimy and muddy.”

It is settled in Texas that in such a case as this it is incumbent on plaintiff to establish (1) that defendant placed the foreign substance on the floor, or (2) knew it was on the floor and negligently failed to remove it, or (3) that it had been on the floor for such period of time that it would have been discovered and removed by defendant in the exercise of ordinary care. Great Atlantic & Pacific Tea Company v. Giles, Tex.Civ.App., 354 S.W.2d 410, 412, writ. ref. n.r.e.; Sherwood v. Medical & Surgical Group, Tex.Civ.App., 334 S.W.2d 520, 521, writ, ref.; and cases cited.

In seeking to predicate recovery on the jury finding concerning failure to inspect, plaintiff is relegated in this case to the third basis enumerated above. It is recognized that the duty of the occupier of premises to business invitees includes the duty to protect the invitees from dangers of which the occupier should know in the exercise of ordinary care, growing out of the latter’s duty to inspect. Halepeska v. Callihan Interests, Inc., Tex.Sup., 371 S.W.2d 368, 378; Genell, Inc., v. Flynn, 163 Tex. 632, 358 S.W.2d 543, 546.

An indispensable element of the third ground above, however, is that the substance had been on the floor for such period of time that ordinary care in making an inspection would have resulted in its discovery. As held in R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, 677, writ ref., it must be determined whether the object creating the dangerous situation had been on the floor “long enough that, by the exercise of ordinary care,” the defendant “should have discovered and removed” it. The rule is summarized in 61 A.L.R.2d 64: “Absent proof that the proprietor had notice of the dangerous floor condition, no liability attaches to the proprietor’s failure to inspect the premises, unless the condition existed for such a length of time as to afford him an opportunity to inspect.”

In the absence of evidence of probative force as to this time factor, there is no basis for imposing liability. It is not necessary to pass on appellant’s other points.

Reversed and rendered.


author: PHILLIPS, Justice.

text:
    Max SILBERSTEIN et al., Appellants, v. The FIRST NATIONAL BANK OF BOSTON, Appellee.
    No. 11302.
    Court of Civil Appeals of Texas. Austin.
    June 2, 1965.
    Rehearing Denied June 23, 1965.

      Cofer, Cofer & Hearne, John D. Cofer, Austin, for appellants.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellee.
   PHILLIPS, Justice.

The plaintiff bank sued defendants Sil-berstein and Ginsburg under the provisions of Article 12.14, V.C.S. (General Taxation Code.) The suit sought to hold these defendants personally liable for a debt incurred by a corporation known as Saul’s of Fort Worth, Inc., of which both defendants were officers and directors.

The pertinent parts of Article 12.14 are as follows:

“ * * * Each director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation, which shall include all franchise taxes and penalties thereon which shall become due and payable subsequent to the date of such forfeiture, and which may he created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporations were partners.” (Italics added.)

The case was submitted to trial on a fact situation stipulated as follows: The debt sued on was created and incurred in 1960. The defendants (appellants here) were officers and directors of the corporation at the time the debt was incurred. The debt was charged to Saul’s Inc., and was created and incurred by the manager of the corporation, one Resnick. Neither of the defendants personally created or incurred the account; and neither had any actual knowledge of the purchases until after the goods were delivered to the corporation in Fort Worth and checked and approved by the manager. Subsequently these invoices were sent by the manager to Ginsburg in Austin. Both defendants reside in Austin; at the time the debt was created and incurred, the right of the corporation to do business in Texas had been forfeited because of unpaid franchise taxes and penalties, and the right to do business had not been revived; neither of the defendants had any actual knowledge of the delinquent taxes and forfeiture at the time the debt was created and incurred as all the transactions with respect to the franchise taxes were handled by the corporation’s auditor in Dallas.

The trial court held the defendants liable for the debt. We reverse the judgment of the trial court and render this case.

The appellee bank seeks to uphold the judgment of the trial court and cites this Court to its opinion in Sheffield v. Nobles, 378 S.W.2d 391, error refused; appellee also cites the opinion of the Waco Court of Civil Appeals in Hicks v. Continental Carbon Paper Manufacturing Company of Dallas, 380 S.W.2d 737, writ of error ref., n.r.e. in a per curiam opinion, Tex., 382 S.W.2d 910. Neither of these cases are in point as in each the officers and directors charged under Art. 12.14 had actual knowledge of the creation of the debt.

In the case at bar the debt had not been created and incurred with the knowledge, approval and consent of the defendants. When they learned of the debt it had been created. The creation of the debt had become a fact and there is no escape from the theory that if defendants are liable here the act of their agent in creating the debt must be imputed to them. In Sheffield, above, this Court said: “We are aware of and have fully considered the effect of enforcing this statute under all circumstances and agree that it is highly penal in nature and one which could produce great hardship.” Penal statutes are strictly construed, Schwab v. Schlumberger Well Surveying Corporation, 145 Tex. 379, 198 S.W.2d 79, 168 A.L.R. 1074, 1075.

The Schwab case cited above is controlling here. There certain directors and officers were sought to be held personally accountable for the debt of a corporation under then Art. 7091 from which present Article 12.14 was taken verbatim. The Court in refusing to hold the officers and directors liable under a fact situation not pertinent here, made the following observations concerning Art. 7091:

“ * * * Such statutes, though held to be remedial in some instances, are also penal in nature, and it is generally held that they must be strictly construed and cannot be extended beyond the clear import of their language.”

And:

“It will be noted that the statute involved fixes liability upon the directors and officers of a corporation only for debts ‘created or incurred’ after the forfeiture of the corporation’s right to do business. The words ‘created’ and ‘incurred’, as used in the statute, have a clear and well defined meaning. The word ‘create’ means ‘To bring into existence something which did not exist.’ (Citing cases) The word ‘incur’ is defined in Ashe v. Youngst, 68 Tex. 123, 125, 3 S.W. 454, 455, as ‘ “Brought on,” “occasioned,” or “caused.” ’ ”

And further:

“The cases holding the officers of a corporation liable under article 7091 were with respect to transactions arising subsequent to the forfeiture of the corporation’s right to do business, and even then they are not liable unless the new indebtedness was incurred with their knowledge, approval and consent.” (Citing cases.)

Schwab states that the statute was meant to prevent wrongful acts of culpable officers of a corporation. The statute in question does not extend liability beyond the point of actual knowledge of the incurrence of the debt. Also see Groce-Parrish Co. v. Yakey, Tex.Civ.App., 81 S.W.2d 273.

We reverse the judgment of the trial court and render this case in that the plaintiff below take nothing by its suit.

Reversed and Rendered.


author: WERLEIN, Justice.

text:
    Gloria Ann WOLVERTON, Appellant, v. Clyde Donald McELROY, Appellee.
    No. 14589.
    Court of Civil Appeals of Texas. Houston.
    June 3, 1965.

      John Benn, Houston, for appellant.
    William M. Dickson, Houston, for ap-pellee.
   WERLEIN, Justice.

Appellee, Clyde Donald McElroy, sued his former wife to obtain custody of his daughter, Pamela Cheryl McElroy, about years of age, on the ground that there had occurred a material change of conditions since said child had been awarded to appellant, her mother, and the best interest of the child required the placing of her custody in appellee. The case was tried to the court and a jury. The jury found that since the former judgment granting custody of the minor child to the mother (now Gloria Ann Wolverton), there had occurred such a material change of conditions that the best interest of said minor child required a change of custody to Clyde Donald McElroy. Based on the finding of the jury, the court entered judgment granting custody and control of said child to appel-lee with rights of visitation in appellant.

Appellant contends that the court erred in refusing to direct a verdict in her favor because there was insufficient evidence adduced on the trial to warrant submission of an issue to the jury as to whether or not there had occurred such material change of conditions that the best interest of the said minor child required a change of custody to appellee. Appellant also complains that the court erred in failing to grant a mistrial on the ground that counsel for appellee repeatedly referred to appellant’s former husband, Charles W. Leavens, as being indicted by the Harris County Grand Jury, and also on the ground that said counsel repeatedly stated or insinuated that appellant had been in a mental institution when there was no evidence to substantiate such statement.

We have carefully read the statement of facts, and are of the opinion that there was ample evidence which warranted the trial court’s submission of the issue relative to custody of the child. We shall not undertake to recite at length the testimony of the numerous witnesses who testified at the trial, but shall refer to some of the evidence in support of the jury’s finding and the trial court’s judgment. Appellant’s point of error is a “no evidence” point.

Appellant was granted a divorce from appellee, her second husband, on March 6, 1961. The court at that time awarded the custody of Pamela, who was then 5 years of age, to appellant, and decreed that ap-pellee pay the sum of $15.00 weekly as child support. Shortly after her divorce, appellant, on April 14, 1961, married one Charles W. Leavens. She lived with him about 6½ months, and divorced him on February 12, 1962. Two days after divorcing Leavens, she married one Herbert Elvin Megason. She divorced Megason on July 30, 1962, after living with him several months. On August 11, 1962, she married Clarence C. Wolverton, and divorced him on or about September 13, 1963. She was married to him about 13 months, but lived with him only several months. During these frequent changes of husbands and concomitant circumstances, the child was living with her and was exposed thereto.

Appellant admitted to drinking beer but denied she drank to excess. She also denied beating her child, saying that she would put her on her knees and spank her. When asked if Wolverton abused the child, she testified that she had to go into the child’s room and stack furniture against the door and sleep with the window open over and over again. She admitted having several beers at several lounges on or about April 5, 1964, and having a date with one Andy, whose last name she did not know. She testified that after divorcing Wolverton, he and his new wife constantly called her at various times of the night and harassed her continually. The Wolvertons denied this, and testified that she had called them numerous times, and that on the night of April 5, 1964, she went to the Wolverton apartment, and at that time she was drunk. In leaving she backed against the side of a car.

The testimony of several witnesses shows that appellee frequently visited lounges, where she drank not only beer but mixed drinks, and that she would become noisy, curse and use indecent language. Wolver-ton testified that on one occasion while they were married she tried to push him out of the car while driving on a freeway; that on the night of April 5, 1964, when she came to his apartment, she was drunk, and threatened to kill him with a pair of scissors; that he called her step-father and mother and also the police. He also testified to the fact that on one occasion she had used a belt buckle on Pamela and had left marks on her person; and that she drank Bourbon and Vodka in the presence of Pamela, and would become “plastered”.

Appellee testified that she had threatened at one time to kill him. She admitted that she had been in an emotional nervous condition for several years, and that she took pills prescribed by one Dr. Nance. She also testified that she had been in a hospital twice, once for some 7 or 8 days, and that she had taken shock treatments and insulin for her nervous condition.

One Saulnier, who was employed some 14 years by Southwestern Bell Telephone Company, testified that he had been in the Wolverton home some 4 times, and on one occasion Mrs. Wolverton drank half a dozen beers; that he had seen her a dozen times in the Topaz and Blue Skies Lounges, had heard her cursing there some 4 or 5 times, and on one occasion she was asked to leave because she raised so much “Cain” and used such bad language, that she had a bottle of Vodka and drank mixed drinks, and that he had seen her about half drunk.

Appellant’s mother, with whom the child was left on occasions, testified that her daughter had never been in a mental institution, and that she took good care of the child. She admitted that appellant had had psychiatric treatment. Both Wolver-ton and appellee testified to the fact that she would go into tantrums and start slinging things around. Wolverton also testified that she was frequently out at night; that he had seen her when she was drunk and numb, and that she would take the child with her sometimes and go away on occasions maybe for several days; that she constantly used indecent language and threatened him during the time of their marriage and used bad language in the presence of the child.

Appellee testified as to the amount of money that he was making as a carbide tool grinder in the employ of Cameron Iron Works, where he had worked for 8½ years. On August 12, 1961 he married his present wife who had three children, and was working in a beauty salon. He testified that neither he nor his wife drank and that they went to church, and that he and his present wife were able to take proper care of Pamela. He further testified that the child would tell fibs; that her hair was filthy and her clothes were too large for her; and also that appellant’s own appearance had changed since her divorce in March, 1961. Pamela was placed on the stand and testified that appellant drinks “every once in a while,” that she made one or two F’s at school; that she would want to visit her daddy if permitted to do so, and that if the court decided that she should live with her father, she would want to visit with her mother, too, and that she loved both her mother and her daddy.

Appellant denied many of the incidents testified to by other witnesses. The credibility of the witnesses and the weight to be given their testimony was, of course, for the jury. The jury heard all of the testimony, looked into the faces of the witnesses and found that the best interest of the child required that her custody be changed due to a material change of conditions. There was ample evidence in support of their finding. ⅛

Counsel for appellee on a number of occasions would base his questions upon an assumption of some fact that was not in evidence. He was admonished several times by the court to desist from such tactics, but was rather persistent in stating or insinuating certain facts not in evidence and then basing questions thereupon. Each time this was done an objection was made by appellant’s counsel, and the court properly and promptly instructed the jury not to consider the statements or assumptions made by counsel. The evidence shows that counsel asked such questions as: “You have been in the hospital on numerous times since taking psychiatric treatment ?” ; “You were told at that time by your doctor in your presence, personally to you, that you were suffering from a schizophrenic reaction?”; “Is it not true that on numerous occasions when you have been in the hospital suffering from mental disorders * * * ” He also propounded the following question to another witness: “Did you attend a Christmas party in December, 1960, where Mrs. McElroy was present and became thoroughly intoxicated and had to be removed bodily from the party ?”

Since the court promptly sustained objections to such questions, and, when requested, instructed the jury not to consider them, it is our view that the court did not err in refusing to grant a mistrial. The testimony of appellant and others showed that appellant had not been in a mental institution, and had not been carried out bodily from a party. The testimony showed the extent of appellant’s mental disturbances. She admitted that she had been very nervous for several years; that she had been in the hospital on two occasions and had had shock treatments and insulin. There is also testimony that she had had psychiatric treatment. We cannot say that said questions based largely on assumptions of appellee’s counsel actually so prejudiced the jury as to result in an improper verdict. The jury heard all the witnesses and the evidence and could scarcely have been misled by apparently unfounded assumptions made by appellee’s counsel to which objections were sustained and which they were promptly instructed not to consider for any purpose. Rule 434, Texas Rules of Civil Procedure. We are also of the opinion that appellee’s reference to the fact that Leavens, one of appellant’s erstwhile husbands, had been indicted by the Harris County grand jury did not prejudice the jury against appellant. She was not shown to have any connection with any dereliction on his part, if such there was, and she had divorced him more than two and a half years before the trial. Furthermore, appellant’s objections to such references were sustained and the jury was instructed not to consider the same.

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    M. E. HILL, Appellant, v. E. G. SCHUHART II, Appellee.
    No. 7465.
    Court of Civil Appeals of Texas. Amarillo.
    May 17, 1965.
    Rehearing Denied June 14, 1965.
    Fike & Hunter, Dalhart, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   NORTHCUTT, Justice.

M. E. Hill brought suit in the District Court of Dallam County, Texas, against E. G. Schuhart II to recover possession of certain real estate and to recover as damages any sum of money Schuhart had received or would receive under the terms of the Soil Bank Conservation Reserve Program and contending he was entitled to the sum of $7,584.00, being the amount due him as tenant under such program for the years 1963, 1964, and 1965.

Mrs. M. W. Murphy was the owner of the land in question and M. E. Hill was the tenant thereon when said property was originally placed in the Soil Bank Conservation Reserve Program. It was agreed at the time Hill was to receive ⅜ of said Soil Bank payments and Mrs. Murphy 1/3. Later they agreed to change such agreement and Hill was to receive ½ of such payment and Mrs. Murphy ⅛. The Soil Bank Conservation Contracts here involved were executed with the United States Department of Agriculture Commodity Stabilization Service by Mr. Hill and Mrs. Murphy and said contracts provided among other matters the following:

“(b) The loss of control of the farm by sale or otherwise by any owner signatory to the contract, or by any cash tenant, standing-rent tenant or fixed-rent tenant who has a lease for the entire contract period and who signed the contract in lieu of the owner, shall terminate the contract as to such producer. In the event of such termination, the producer losing control shall not be entitled to further compensation under the contract and shall refund all Federal cost-shares received by him under the contract unless the producer who acquires his interest in the farm is or becomes a party to the contract and assumes all obligations thereunder. The loss of control by any contract signer shall not affect the rights and obligations of all other producers who signed the contract.
“(c) If the county committee is notified in writing, prior to making payment under an existing contract to a tenant (including a tenant operator) or to a sharecropper, that such tenant or sharecropper is no longer on the farm, the county committee shall determine the division of compensation between the original tenant or sharecropper and the successor tenant or sharecropper, or between the original tenant or sharecropper and the landlord or operator if the tenant or sharecropper is not replaced, on a basis which it determines to be fair and equitable.”

After said contracts were executed Mrs. Murphy died on October 12, 1962, and Mrs. Mabel C. Steele became the owner of the real estate here involved and in December 1962 notified Mr. Hill that his rental agreement was cancelled as of January 1, 1963. Mrs. Steele then leased the land to Mr. Schuhart for the years 1963, 1964, and 1965, and they entered into the same kind of contract with the United States Department of Agriculture Commodity Stabilization Service and the same was approved for the Secretary of Agriculture after the county committee had been notified in writing that Hill was no longer tenant on this land.

Mr. Hill testified by deposition that he never at any time subsequent to 1948 had a lease contract with Mrs. Murphy that was more than a one-year term. On April 12, 1959, Mr. Hill had a lease drawn up and signed by him and sent to Mrs. Murphy requesting her to give him a lease for a period beginning as of January 1, 1959, and ending and terminating at midnight on December 31, 1965. Mrs. Murphy did not sign the purported lease. It is Mr. Hill’s contention that the contract signed by him and Mrs. Murphy placing the land in question in the Soil Bank Program gave him the right to possession as a tenant during the duration of said contract. Mr. Schuhart made and presented his motion for summary judgment. The trial court granted summary judgment decreeing that Hill take nothing against E. G. Schuhart as to the land; that he recover no sum of money of and from Schuhart; and he take nothing in any regard against Schuhart. From that judgment Hill excepted and perfected this appeal. Hill will hereafter be referred to as appellant and Schuhart as appellee.

The sole issue to be determined under this record is whether the Soil Bank Contract by its terms and by the regulations of the Department of Agriculture pertaining thereto leased the land in question to appellant for the full term that said land was in the Soil Bank Program. In the deposition of appellant in the motion for summary judgment he testified that he never at any time subsequent to 1948, this being the date he first leased the land, had a lease contract with Mrs. Murphy that was for more than a one-year term. Appellant had a lease contract drawn and sent to Mrs. Murphy seeking a lease for the full term the land was in the Soil Bank Program but Mrs. Murphy did not sign the lease sent to her but appellant continued in possession of the lease from year to year as before and until the death of Mrs. Murphy.

Appellant further testified in his deposition that he had nothing in writing except the Soil Bank agreement whereby Mrs. Murphy purported to lease the land to him for any five-year term. Since he did not have a written contract under Articles 1288 and 3995 Vernon’s Ann.Tex.Civ.St, he had nothing at any time other than the lease for one year unless the Soil Bank agreement gave him a lease for the full period of such agreement.

We have not been cited to any authority, and neither have we found one, interpreting the Soil Bank agreement holding that said agreement gave the tenant a lease for the full term of the agreement. The Soil Bank Conservation Reserve Contract provided that all of the provisions of the regulations issued by the Secretary governing the Conservation Reserve Program were a part of the contract. Article 1809, Title 7, United States Code governing the Soil Bank Program, is as follows:

“The facts constituting the basis for any payment or compensation, or the amount thereof, authorized to be made under this chapter, when officially determined in conformity with applicable regulations prescribed by the Secretary, shall be final and conclusive and shall not be reviewable by any other officer or agency of the Government. In case any producer who is entitled to any payment or compensation dies, becomes incompetent, or disappears before receiving such payment or compensation, or is succeeded by another who renders or completes the required performance, the payment or compensation shall, without regard to any other provisions of law, be made as the Secretary may determine to be fair and reasonable in all the circumstances and so provide by regulations.”

Article 1812, Title 7, United States Code, is as follows: “The Secretary shall prescribe such regulations as he determines necessary to carry out the provisions of this chapter.” Section 7S0.1S6 of such regulations reads in part as follows:

“If an owner or a tenant-operator who enters into a contract loses control of the farm before the end of the contract period, his successor, if any, as owner or tenant-operator, as the case may be, during the contract period may upon his request be substituted' under the contract as owner or tenant-operator by executing a form prescribed by the Administrator, ASCS for such purposes.”

Section 750.169(b) (1) of such regulations reads in part as follows:

“The loss of control of all or a part of the farm by sale, death, or otherwise, by any producer signatory to the contract shall terminate the contract as to such producer with respect to the acreage over which control is lost.” (Emphasis ours.)

It is stated in Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, as follows:

“ ‘Through all the rules governing construction of instruments, there runs the central thought of ascertaining the real intention of the parties. In the nature of such inquiry, there can be no fixed rule, for every case, in large measure, depends upon its own facts, context of instrument, and circumstances. Of course it is elementary, if there is no ambiguity, the construction of the written instrument is for the court, and moreover, even in those cases of ambiguous instruments, if the parol evidence is undisputed as to the circumstances, the construction is yet a question of law for the court.’ ”

Appellant attempting to secure a lease for a period of five years and Mrs. Murphy failing to execute such a lease and appellant continuing to use such land under a one-year lease and never raising such issue until losing possession of such land, we cannot hold it was the real intention of the parties that appellant was given a lease upon the land during the entire period of the Soil Bank agreement. Neither do we find anything in the agreement giving appellant a lease for the duration of the Soil Bank agreement. We are of the opinion, and so hold, that under the terms of the agreement and the regulations as prescribed by the Secretary that Mrs. Steele, the owner, had the right to cancel appellant’s right to possession at the end of the year he had a lease thereon and that the Soil Bank agreement did not give him a lease for the duration of such agreement.

Judgment of the trial court is affirmed.


author: MASSEY,. Chief Justice.

text:
    SPECIALIZED CARRIERS, INC., et al., Appellants, v. Bias GARCIA, Appellee.
    No. 16645.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Rehearing Denied June 18, 1965.
    Nelson & Sherrod, Wichita Falls, and Leachman, Gardere, Akin, Porter & DeHay and Fred T. Porter, Dallas, for appellants.
    Johnson & Browning, Wichita Falls, and Crumley & Hooper, and R. E. Rouer, Fort Worth, for appellee.
   MASSEY,. Chief Justice.

Defendants appealed from an order overruling their pleas of privilege. Plaintiff relied upon subdivision 9a of Vernon’s Ann. Tex.Civ.St., Art. 1995, to support maintenance of his cause of action in the county where he brought suit. Theory thereof was that the defendant T. E. Choate, while acting within the scope and course of his employment by the defendant Specialized Carriers, Inc., was guilty of acts and omissions amounting to negligence and that such constituted proximate cause (s) of the injuries of Bias Garcia, the plaintiff.

Judgment affirmed.

Our duty is to examine the record, in light of the points of error presented by the defendants, in the determination of the sufficiency of- the evidence to support the trial court’s judgment overruling the pleas of privilege. If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 100 (1953).

We find that there was evidence introduced before the trial court entitling it to find that defendant Choate’s acts, and/or omissions, which caused or resulted in the injuries of plaintiff, occurred pursuant to Choate’s performance of services which were rendered in furtherance of the interest of his employer Specialized Carriers, Inc.; and that there was evidence which entitled the trial court to find that those certain acts and/or omissions on Choate’s part, alleged to constitute negligence, did in faet proximately cause plaintiff’s injuries.

Specialized Carrier’s, Inc., had a contract whereby it agreed to transport heavy cement pipe to the “job site” where the operations of the employer of plaintiff were being conducted. Said employer had contracted with other persons to install a pipeline in a trench to be dug along a certain “right-of-way”. The trench had not been dug. It was desired to have the concrete pipe “strung out” along the ascertained location thereof in order to facilitate the installation contract. It was understood between Specialized Carrier’s, Inc., and plaintiff’s employer that the agreed delivery to the “job site” meant that the former’s trucks would be moved along the “right-of-way” in a manner which required them to be stopped at frequent intervals. Plaintiff’s employer would give the signal to each driver to instruct him to stop when his truck was properly “spotted”. At each stop, or “spotting”, the plaintiff’s employer would perform the obligation of unloading one or several joints of pipe; then the truck driver for Specialized Carriers, Inc., Choate in the present instance, would move the truck forward and “spot it” again for another unloading operation by the contractor.

One of such contractor’s employees was the plaintiff. He and another employee of the same contractor were given the duty of “skidding” or rolling each joint of pipe unloaded over the side of the bed of the trailer in order that a “fork-lift” machine, operated by still another employee of the contractor, could lower the joint to the ground. Each joint of pipe was about thirteen (13) feet in length, having an interior diameter of sixteen (16) inches. It was very heavy pipe.

On the day of plaintiff’s injury, he and his co-employee on top of the pipe had already participated in many unloading operations. After completing one of such it appeared necessary that the truck be moved forward to be “spotted” for the next unloading operation. This the defendant, Choate, proceeded to perform, i. e., he started the truck- and drove forward at a very slow speed — in the process of reaching the next point at which unloading operations would take place. The plaintiff did not get off the- truck. He stood on top of a joint, or joints, of pipe on the bed of the trailer while the truck was being driven forward. As Choate so drove the truck, with plaintiff so situated, he started across an area of ground which was in such condition that the left wheels of the tractor (of the truck and trailer) went upon a higher elevation than those on the right. This tilted the trailer, and threw the weight of the joints of pipe toward the right side of the trailer bed. This, in turn, resulted in the breaking of certain metal bands which were intended to aid in securing the pipe in place on the trailer bed, — and the joints of pipe, or some of them, rolled off their platform and onto the ground. Plaintiff fell to the ground on the right side of the trailer with the joints of pipe. He sustained very serious injuries.

The evidence having reference to the nature, size and method of fastening of the metal bands aforementioned, indicated that they were not intended to constitute adequate anchorage of the joints of pipe on the platforms provided as support for any movement of the truck such as that effected by Choate’s operation. Additional bands of greater size and strength, fastened by a more secure method, had been removed by Choate before unloading began. Furthermore, the chain “boomers” had been removed. These are normally used to provide secure anchorage for the pipe during highway travel or when necessity therefor is otherwise indicated.

We have no doubt but that a fact issue was raised relative to Choate’s negligence in operating the truck as he did, where he did, and how he did, especially when he knew or should have known that the plaintiff was riding on pipe that was not securely anchored. That the plaintiff’s injuries proximately resulted is not to be doubted. The findings of fact by* the trial court against both defendants were adequately supported by the evidence if Choate was acting within the scope and course of his employment by Specialized Carriers, Inc.

Thereon the defendants found their principal contention. Their theory is that Choate was a “loaned employee” or “special employee” of the plaintiff’s own employer and that they were therefore fellow employees. Ability to successfully maintain such theory would foreclose the imposition of common law liability by the plaintiff and he would be restricted to a recovery of benefits provided by the Texas Workmen’s Compensation Law.

It must at least be said that a fact issue existed as to whether or not the plaintiff was Choate’s fellow employee. As a fact issue the evidence adequately supported the finding by the trial court against the contention. In the “spotting” operation pursuant to which the plaintiff sustained his injury Choate had not placed himself under the control of the plaintiff’s employer; certainly not as a matter of law. Neither had Choate’s employer placed him under such other employer; at least as a matter of law. Although directed in the “spotting” operations Choate’s obedience to such directions could be factually found to constitute cooperation rather than subordination. That he permitted himself to be thereby controlled would not mean, as a matter of law, that he submitted himself to the control of a new master. The principles of law discussed in Hilgenberg v. Elam, 145 Tex. 437; 198 S.W.2d 94 (1947), have no necessary application. The same is true of Rector v. Walden, Fulton & Payne, 276 S.W.2d 933 (Amarillo Civ.App., 1954, writ ref., n. r. e.).

Judgment is affirmed.