author: PHILLIPS, Chief Justice.

text:
    The SHERWIN-WILLIAMS COMPANY, Appellant, v. The PERRY COMPANY, Appellee.
    No. 11564.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1968.
    Rehearing Denied March 13, 1968.

      Coleman Gay, Joseph Latting, Austin, for appellant.
    Small, Herring, Craig, Werkenthin & Shannon, Charles F. Herring and Fred B. Werkenthin; Brown, Erwin, Maroney & Barber, Jack D. Maroney and Will G. Barber, Austin, for appellee.
   PHILLIPS, Chief Justice.

The Perry Company, Appellee here, is in the manufacturing business wherein it makes diving boards, plastic furniture, water skis, shopwork and millwork. It also has income from investments that have been placed within its corporate structure. Its principal field, however, is the manufacture of diving boards which constitutes 65% of its entire business and it is the second largest diving board manufacturer in the United States.

The Appellant here is the Sherwin-Wil-liams Company which furnished Appellee paint for its diving boards and, allegedly, some bad advice in the use thereof. The suit was for damages for loss caused from defective diving boards and the resulting loss of goodwill. Based upon jury answers to special issues, the court entered judgment against Appellant for $183,607.27.

We reverse the judgment of the trial court and remand the cause for trial consistent with this opinion.

A summary of Appellee’s case is as follows: In 1964 it produced 9,538 diving boards. In finishing these boards, Appel-lee used a polyester coating with sand sprinkled in the second coat on the topside for a non-slip tread. 382 of these boards were returned under customer warranties for various defects mostly relating to finish failures resulting in a 4.01% return rate. That with its production procedure standardized, if Appellee had used the polyester finish again for its 1965 diving boards, approximately a 4% return rate could have been expected.

Hoping to reduce the 4% return rate, Appellee informed Appellant’s salesman of its desire to find a better finish for diving board purposes than polyester. In November of 1963, the salesman sought a recommendation from Appellant’s laboratory with respect thereto. Two months later the laboratory recommended to the salesman that Appellant’s diving boards be finished with a pre-paint application of a product called Homoclad and two coats of Appellant’s Super Kem Var M paint. This latter product originated as a furniture finish, which had little, if any, exterior use. This laboratory report (which was never shown to Appellee) and which makes no reference to application of plaintiff’s customary sand tread states, “The system is looking very good, however, we certainly are not ready to make any claims for the exterior durability of this system.”

Despite this caution and with full authority allegedly admitted by Appellant to act for it, the salesman went to Appellee’s plant three days later and recommended M paint with Homoclad as a better diving board finish than polyester. When the salesman applied text-applied M paint, there was a “bubbling effect” that left “pinholes” upon drying, which were readily apparent to the eye.

The cause of the difficulty with the diving boards was that moisture permeated the wood.

Following further laboratory work on this solvent problem, the salesman returned to Appellee in September of 1964, and, knowing that Appellee intended to use a competitor’s pre-paint application called Woodyouth instead of Homoclad, stated in substance to Appellee that M paint applied as directed by him would be suitable for finishing its 1965 diving boards and would do a better job than polyester.

In answer to express warranty special issues, the jury confirmed the foregoing, finding that in September of 1964, Appel-lee agreed with the salesman to buy and use M paint to finish its 1965 diving boards; that in September of 1964, the salesman knew Appellee intended to use a competitor’s Woodyouth and not Appellant’s Homo-clad with M paint in finishing its 1965 diving boards; that with such knowledge the salesman warranted to Appellee that M paint, applied as directed by him, would be suitable for such purpose, and that use thereof was a proximate cause of damage to Appellee.

In the course of obtaining Appellee’s agreement in September of 1964 to buy and use M paint to finish its 1965 diving boards, the salesman undertook at the time to inform Appellee how M paint should be applied to its diving boards. That he did inform Appellee with respect thereto is uncontroverted in the evidence, but what he informed them with respect thereto is sharply disputed.

Appellant contends that this suit began as a conventional product liability sujt charging Super Kem Var M as being defective, however, that this charge was withdrawn, the evidence regarding any defect in the paint being so slight that no special issue was given or requested.

Appellant further contends that being wholly unable to establish any defect in the paint itself, Appellee then charged that the reason the finish failed was that the manner in which the paint was applied with Woodyouth and Cabosil, or the use of the paint with those materials, was the cause of the defective finish. That since Appellant did not recommend the use of Woodyouth or Cabosil, the effect of the charge was that Appellant should have warned Appellee against using the combination, although it was charged, and the jury found, that the Appellant’s salesman had been negligent in showing Appellee’s employees how to apply the three materials to the diving boards. With respect to the negligence issues Appellant contends that it was not shown that the salesman had any duty to give such directions to Appellee, or that he did give any such directions.

Furthermore, Mr. Maurice W. Cole, the president of Appellee Company was an acknowledged expert in the use of wood, and by his own admission was a pioneer in certain phases of the painting of wood.

Appellant’s salesman, on the other hand, had never painted or assisted in painting a diving hoard. It was admitted that after a considerable amount of laboratory testing, Appellant recommended a sealer coat of Homoclad and two coats of Super Kem Var M, and that the salesman passed this recommendation to Mr. Cole. Appellant further contends that, admittedly, the salesman did not recommend Woodyouth or Cabosil, both of which were then being used by Appellee.

That Mr. Cole admitted test quantities of Homoclad and Super Kem Var M were sent to Appellee, that one test that could easily have been made was to paint a board or panel in accordance with the laboratory recommendation, put it outside in the sun, that there is no laboratory test as good as a field test. That Mr. Cole further testified that in determining whether or not a particular finish will keep out moisture, “experience is the only answer.”

Appellant further contends that no contract was made or claimed whereby Appel-lee was forced to buy and Appellant was forced to sell the paint in question. That, on the contrary, each purchase was a separate transaction, and upon receipt of each order Appellant sent Appellee an acknowledgment upon which was prominently displayed a disclaimer of warranty.

That Appellee used Super Kem Var M in combination with Woodyouth and Cabosil from November 1964 to June 1965 and it had a large number of diving boards or tags from boards returned during that period. That despite the fact the most that could be said for Appellee’s testimony was that the salesman knew that Cabosil and Woodyouth were to be used with Super Kem Var M, and in fact showed its employees how to apply it, the jury found that Appellant expressly warranted that Super Kem Var M “applied as directed” by the salesman was suitable for finishing the diving boards.

The jury also found Appellant liable on the theory of implied warranty on the theory that the salesman was negligent in the instructions he gave for finishing the diving boards.

As stated above, the total damages found by the jury was $183,607.27 of which $75,-000 was for the loss of goodwill and $15,000 was for the loss of projected earnings for 1966.

I.

Appellant is before this Court on twenty-nine points of error, the first two of which, briefed together, are the error of the trial court in permitting Appellee’s employee to testify from his examination of its books and records to the number of diving boards returned by its customers in 1964 and 1965 over defendant’s objection that the books would be the best evidence and there being no showing that the books and records were kept in such manner as to make them admissible in evidence if they had been offered; the error of the court in permitting Appellee’s accountant to testify from his examination of its books and records as to the cost of manufacturing the diving boards, over Appellant’s objection that the books were the best evidence and there being no showing that they were kept in such manner as to make them admissible in evidence if they had been offered.

Mr. Frank Petty, Appellee’s manager of sales and traffic, testified that he had been employed by Appellee since October 4, 1965; that at the request of Appellee’s counsel he had “calculated various statistics from The Perry Company’s business records” to the best of his ability to do' so and that he had brought with him “notes reflecting such figures.”

He was then asked to state the number of diving boards returned by purchasers for the fiscal year 1964, “as reflected by the company records,” to which Appellant objected on the ground that the books would be the best evidence. The objection having been overruled, the witness testified that his examination showed that 382 boards out of a total of 9,538 boards produced in 1964 were returned, or 4.01% of the production.

The court then agreed that Appellant’s original objection should extend to the entire line of testimony.

Mr. Petty further testified that according to the books and records that he examined, 7,704 boards were finished during 1965 in the manner allegedly directed by Appellant’s salesman and that 2,441 of them were returned. He then testified to the total production and percentage for returns for boards finished in various ways, all of which testimony was intended to show that the rate of return was much greater during the period when they were finished as allegedly directed by the salesman. This entire testimony was a recital of what he had found in the books.

The head of Appellee’s accounting firm, Mr. Ben Barr, testified that he had checked the books in order to determine the cost of the returned boards to which $8.66 was added for administrative overhead, making an original cost of $41.92 each. He calculated that the cost of handling each return to be $1.37. All figures given by Barr were obtained from books and records which were not produced in court and which were not shown to have been kept in such manner as to be admissible in evidence. Stark v. Burkitt, 103 Tex. 437, 129 S.W. 343 (1910); 2 McCormick & Ray, Texas Law of Evidence 402, Sec. 1563; J. E. Earnest and Company v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Dallas Railway and Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948).

Appellant here points out that neither Petty nor Barr had any business connection with Appellee when most of the entries were made and, at most, could have known how they were kept only by hearsay.

Appellee contends that the court’s ruling was proper under the voluminous records exception to the best evidence rule. This exception is stated in 23 Tex.Jur.2d, Evidence, Sec. 236, page 359, as follows: “If books of accounts are so voluminous and detailed as to make their examination in court inconvenient, an expert accountant or some other competent individual, who has examined them, may properly be permitted to testify as to their contents. * * The admission of such testimony is within the discretion of the trial court. * * * ” 2 McCormick & Ray, Evidence 413 (Sec. 1566) states; “ * * * If the books or other records are produced or tendered, but are complicated or voluminous, an expert who has examined them may testify as to his calculations, summaries or conclusions to aid the court or jury to understand them.”

These two statements from the authorities are correct; however, to state them begs the question before us. We hold that in order to stand on this exception to the best evidence rule, a proper predicate or showing must be had as to how these books were kept, Stark v. Burkitt, supra. Having done so, it is entirely possible that the abovementioned exception could have been relied upon.

The rule is stated in 29 Am.Jur.2d, Evidence, Sec. 458, page 517: “It is a general rule of evidence, sometimes declared by statute, that it is permissible for a witness to give a summary based on an inspection of a number of documents where the documents are so numerous and intricate as to make an examination of them in court impractical, provided, of course that the documents themselves are competent as evidence, and that they are made accessible to the opposing party in order that the correctness of the summary may be tested on cross examination * * * The trial court has broad discretion in admitting or rejecting such a summary and in imposing conditions under which it may be admitted.” (Emphasis added.)

Texas follows this rule. Sam Bloom Advertising Agency v. Brush, 284 S.W.2d 265 (Tex.Civ.App. Texarkana 1955, no writ); Stinnett v. Paramount-Famous Lasky Corporation, 37 S.W.2d 145 (Tex.Com.App.1931).

If the books and records of Ap-pellee had been produced in court and offered in evidence they would have been hearsay to Appellant; however, upon proper predicate they may have been admissible. The testimony of Petty and Barr as to the contents of the books without this predicate was double hearsay.

In this era of big business, voluminous records may well become the rule rather than the exception. It is difficult for us to believe that where these records are an integral part of the moving parties’ case, that merely by making a welter of records accessible to an opposing party, at the discretion of the trial judge, the burden is shifted to the opposing party, making it his duty to cull out any barriers to admissibility that may be inherent therein. These records are hearsay and any testimony rooted therein is hearsay spawned in hearsay.

We sustain these points only to the extent of the rule announced above. Inasmuch as we sustain certain of Appellant’s points, hereinafter described, and in view of another trial, it becomes unnecessary to pass upon Appellee’s reply points to the effect that Appellant’s objection to the admission of the evidence described above was inadequate, and also the reply point that subsequent evidence, admitted without objection, proved the matters that were attempted to be proved by the evidence in question.

Appellant’s third point of error is that of the trial court in refusing to permit it to show on cross examination of Appellee’s accountant that Appellee’s income tax returns for 1964, 1965 and 1966 showed losses from its manufacturing operations of $142,-000, $85,000 and $18,000, respectively.

We sustain this point.

According to testimony of Appellee’s head accountant Barr, the profit from its manufacturing business for 1963 was approximately $21,000, for the fiscal year 1964 was approximately $3,000 and for the fiscal year 1965 was approximately $12,000. According to the income tax returns, however, its losses for 1964, 1965 and 1966 were, respectively, $142,000, $85,000 and $18,000.

As stated above, Appellee manufactured not only diving boards but also plastic furniture, water skis, surfboards, mill-work and shopwork. The testimony discloses that for the year 1965 its $735,000.00 net sales income in 1965 was derived $480,-000 from diving boards, $57,000 from plastic furniture, $7,000 from water skis, $80,000 from shopwork, and $122,000 from mill-work. Thus it can be seen that approximately 65% of the manufacturing operations consisted of diving boards.

Appellee objected to the admission of these income tax returns on the basis that they were immaterial and irrelevant, that they would be prejudicial to Appellee, that the figures for diving board operations were so intermingled with all other figures they could not be “untangled and analyzed in any meaningful way” and, that its probative value was so slight that “the court * * * should exercise its discretion by reason of the prejudicial aspects of this testimony to exclude it.”

It is difficult for us to understand how under modern accounting procedures, where the diving boards accounted for roughly 65% of Appellee’s business, that the returns in question should have been excluded. Certainly had the profits from the diving board business, which accounted for $480,-000.00 of $735,000.00 total manufacturing operations in 1965, been wiped out from losses from the manufacture of plastic furniture, skis, shopwork and millwork, that losses from approximately 1/3 of the manufacturing operations had wiped out profits from ⅜ of the manufacturing operations; the fact could have been shown, thus nullifying any probative value of the returns.

The rule is stated in 20 Am.Jur.2d 309, Sec. 260, to the effect that relevant evidence will not be excluded on the ground that it would create unfair prejudice if permitted, at least where such evidence is not merely circumstantial.

We hold that the evidence was highly relevant for the purposes of impeachment, that the prejudicial effect would be no greater than the prejudicial effect any relevant figures offered in rebuttal, and that it is only reasonable to assume that should the losses stated in the returns have no bearing on the diving board business, then this fact could have been shown by Appellee through competent testimony.

The case of Bunten v. Davis, 82 N.H. 304, 133 A. 16, 45 A.L.R. 1409 (1926), contains an excellent discussion of the subject. It was there held that certain testimony was admissible, although it related to the conduct of other persons besides the defendant, and was comparatively remote. The Court said in part as follows:

“The ruling was also put upon the ground that the proffered evidence would create unfair prejudice in favor of the defendant. It is well settled in this state that the issue presented by the invocation of the undue prejudice rule is one of fact. Citing authorities. But this statement of the rule is not to be taken to mean that exclusion upon this ground can be applied to all offers of proof. The issue raised is one of fact; but the determination of when it may be raised is matter of law. * * * The exclusion of relevant evidence upon the ground that it would create unfair prejudice is permitted when the evidence is merely circumstantial. * * *
But the rule does not extend so far as to permit the exclusion of facts which the law declares to be elements of the situation which are to be considered. It has no application to direct evidence. The question whether certain facts constitute a cause of action or afford a ground of defense is one of substantive law; and, if it be resolved in the affirmative, the evidence thereof becomes admissible.” (133 A. 20, 45 A.L.R. 1416).

These returns are certainly direct evidence as to losses from Appellee’s manufacturing business and are admissible as rebuttal evidence or as admissions against interest.

II.

Appellant’s fourth point of error (which is also pertinent to Appellee’s twenty-first through twenty-ninth points) is that of the court in submitting Special Issue No. 12, over its objection that it was on the weight of the evidence, in assuming that L. W. Smith would direct the application of the finish to the diving boards.

We sustain this point, and in addition sustain the twenty-first through twenty-ninth points. .

The trial court submitted Special Issue No. 12 to the jury in the following language :

“Do you find * * * that, in informing The Perry Company before November 23, 1964, how Super Kem Var M paint should be applied to its 1965 diving boards, L. W. Smith failed to direct such company to apply two coats of Super Kem Var M paint under and in addition to the sand tread ? ”

To the submission of the issue Appellant made the following objection, among others:

“14. Defendant objects and excepts to Special Issue No. 12 because it is on the weight of the evidence in that it informs the jury almost in so many words that L. W. Smith informed The Perry Company how Super Kem Var M paint should be applied. * * *
If there were any pleading to support such issue it is Defendant’s view that there should be an issue as to whether or not the defendant’s agent, L. W. Smith, undertook to instruct Plaintiff how to apply Super Kem Var M to its 1965 diving boards. * * * ”

This issue should have been divided into two separate issues inquiring (a) whether or not L. W. Smith directed or instructed the manner in which Super Kem Var M was applied (b) if so, whether or not L. W. Smith failed to direct that two coats of Super Kem Var M be applied in addition to the sand tread. Tex.R.Civ.P. 272. Hodges, Special Issue Submission in Texas, Sec. 7, p. 19.

Appellant’s fifth point of error is that of the court in overruling Appellant’s motion for judgment non obstante veredicto.

Appellant contends that when it received an order from a customer (including Ap-pellee), it mailed an acknowledgment of the order to the customer. The acknowledgment contained not only a statement of the goods ordered by the customer, but also the following disclaimer:

“This acceptance of the order for the herein described materials is upon the condition that there are no representations or warranties expressed or implied by or on behalf of the seller beyond the seller’s general warranty that when delivered by the seller the materials are of merchantable quality and since use thereof involves many variables in methods of application, handling and/or use the user in accepting and using these materials assumes all responsibility for the end result. Claims for unmerchantable quality must be reported immediately and use of alleged faulty material discontinued, and in any event seller’s liability shall not exceed purchase price.”

That a copy of the form of acknowledgment so used was admitted in evidence and it has been sent to this Court in original form. That an examination of the acknowledgment will disclose that the above quoted language is prominently shown on the front of the form in large, easy-to-read type, and that any attempt to dismiss the disclaimer as being in “fine print” must be unsuccessful. That it was shown that such an acknowledgment was sent to every industrial customer following receipt of an order.

That it was further shown that on December 5, 1964, a request for a data sheet was received at Appellant’s Garland office, which instrument was admitted in evidence. Appellant’s witness, Mr. J. H. Nelson, testified that although the file contained no cover letter showing that the data sheet was sent, he felt sure that it was sent to Appellee’s president, Mr. Cole, in accordance with the request therefor. The data sheet contained the following disclaimer:

“Note: The information, ratings and opinions stated above pertain to material currently offered and represent results of laboratory evaluations. Since the customer’s application and other requirements are not known or are not under our control, the company cannot make any warranties or guarantees as to results.”

That a test shipment of Super Kem Var M was made to Appellee on October 5, 1964, and thereafter shipments were made on October 24, November 16, December 15 and December 17 (2 shipments) of the year 1964, and on January 17 and January 25, 1965. That in accordance with its uniform custom, Appellant sent an acknowledgment in the form of its Exhibit No. 4 upon receipt of each order. Appellee did not admit having noticed the disclaimer on the acknowledgments.

We overrule this point inasmuch as disclaimer is an affirmative defense and must be plead under Tex.R.Civ.P. 94. However, in view of another trial unless there is a legal difference between paint and watermelon seeds, we believe the parties have a right to make any contract they desire with reference to each commodity not violative of law or public policy. No such violation is claimed here.

As to watermelon seeds, this Court held in Hall v. Mosteller, 245 S.W.2d 338, writ ref. n. r. e., that no liability existed when purchased seeds “Guaranteed to be Black Diamond” melon seeds produced, when planted, pie and citrus melons because the purchase order provided that the seller would not be responsible for the crop. Our decision was based primarily upon the opinion in Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562, from which we quote:

“Pyle contends that the failure of the seller to furnish him the variety of onion seed contracted to be delivered is a breach of the contract, and such breach sustains the judgment of the trial court. This contention is sound enough if the contract did not contain what is generally designated as a nonwarranty clause. The buyer and the seller were free to make whatever contract they desired, so long as its provisions were not illegal or immoral. They agreed that the seller gave no warranty, express or implied, as to description, purity or productivity, and would not be in any manner responsible for the crop. In other words, the buyer agreed to this provision of the contract and bought the seed knowing that the seller was protecting itself under the nonwarranty provision. It is firmly established that where parties have signed, and thereby entered into a written contract, they are bound by its provisions.”

The point is made here that to honor the disclaimer of Appellant from all responsibility for the “end result” of purchasers using its paint is to protect it against its own negligence. The rule to be followed in determing this point is stated in Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631, Tex.Sup., as follows:

“In Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, this Court discussed the rule that an indemnity agreement will not protect the indemnitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms. The obvious purpose of this rule is to prevent injustice. A contracting party should be upon fair notice that under his agreement and through no fault of his own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party. See, Perry v. Payne, 217 Pa. 252, 66 A. 553, [11 L.R.A.,N.S., 1173.] Texas does not, however, follow the refinement of the rule which requires that the agreement, in order to effectually embrace the negligence of the in-demnitee, should expressly so state. It was stated in Friedman that, ‘It is not necessary * * * for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence.’ The rule is that when the wording of the contract is sufficiently broad to cover the negligence of the in-demnitee and the situation of the parties with reference to the subject matter of the contract is such that it can clearly be said that the parties intended that the negligence of the indemnitee should be covered by the indemnity agreement, then liability thereunder will be sustained whenever the injury asserted as a basis for indemnity is one which arose cut of the operations embraced by the contract.”

It is our opinion that the language of the disclaimer in this case is sufficiently broad to include nonliability for negligence of Appellant and its consequences in regard to the use of the paint and the “end result” of such use.

The evidence tends to show that no contract was made between the parties until and except as each batch of paint was ordered and the order accepted. We quote from the testimony of Appellee’s president, Mr. Maurice Cole:

“Q There wasn’t a thing in the world that the Sherwin-Williams Company could have done to you, or The Perry Company, if you changed your mind and decided you didn’t want to buy any, was there ?
A No sir.
Q The Sherwin-Williams Company sure didn’t have to sell to you, if you didn’t want to buy from them, I mean that you didn’t have to buy from them, if you didn’t want to?
A That is correct.”

If the nonexistence of a prior contract is established on retrial the case of Davis v. Ferguson Seed Farms, 255 S.W. 655, Tex.Civ.App., Beaumont, no writ, where a prior contract containing a warranty was held unaffected by a disclaimer attached to seeds when delivered is inapplicable.

Appellant concedes that its disclaimer is ineffective unless brought to Appellee’s attention. It requested issues as to whether the disclaimer was seen or read by officials of The Perry Company or whether they should have been seen or read. In our opinion, these issues, in proper form, should be submitted to the jury if supported by pleadings and evidence on retrial.

Appellant’s point of error number six is the error of the court in holding it liable on an implied warranty of fitness.

We sustain this point.

Appellant contends that liability under the theory of implied warranty was apparently attempted to be submitted in Special Issues Nos. 8, 9 and 10 in response to which the jury found that prior to November 23, 1964, Appellant’s salesman “directed” Ap-pellee in considerable detail as to how the Super Kem Var M and the Cabosil should be applied to the diving boards, that Super Kem Var M as so applied was not a suitable finish for the boards and that Appellee’s use of the paint in that manner was a proximate cause of Appellee’s damage.

In view of the position we have taken on the “disclaimer” and express warranty point here, the theory of implied warranty has no support.

Appellant’s points of error numbers seven and eight, briefed together, are the error of the court in holding that there was evidence to support the jury’s affirmative answers to Special Issues numbers 13 and 16.

In Special Issue No. 13 the court inquired whether or not it was negligence for L. W. Smith (Appellant’s salesman) to fail to direct Appellee to apply two coats of Super Kem Var M under and in addition to the sand tread if he failed to give such direction, and in Special Issue No. 16 whether or not it was negligence for him to “direct” Appellee to add Cabosil to Super Kem Var M paint applied to the sand tread area, if he gave such direction. The jury answered both issues in the affirmative.

Appellant contends that the judgment of the trial court cannot be defended on the ground of negligence on the part of Appellant’s salesman for two reasons, viz., there was no duty on his part to Appellee; that the salesman could not have foreseen the consequences, but on the other hand Appellee should have foreseen them. Appellant cites Shell Oil Company v. Mahler, 385 S.W.2d 684 (Tex.Civ.App. Fort Worth 1964, writ ref’d n. r. e.); Parker Food Stores, Inc. v. Pierce, 374 S.W.2d 699 (Tex.Civ.App. Fort Worth 1964, writ ref’d n. r. e.), among others, on the no duty point. On the foreseeability point City of Dallas v. Maxwell, 248 S.W. 667, 27 A.L.R. 927 (Tex.Com.App.1923), among others.

Appellee cites Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922) for the proposition that one who undertakes particular conduct which he has no obligation to perform in the first instance is charged with the duty to exercise ordinary care with respect thereto. See also Missouri K. & T. Ry. Co. v. Wood, 95 Tex. 223, 66 S.W. 449, 56 L.R.A. 592 (1902), among others.

With respect to foreseeability, Ap-pellee contends, first, that the jury properly found not only that addition of Cabosil to the M paint was a proximate cause of plaintiff’s damages, but also that the failure of defendant’s salesman to direct Appellee to apply two coats of M paint under and in addition to the sand tread was a proximate cause of Appellee’s damage. Thus, inadequate paint film thickness for the sand tread area was found to be one of the proximate causes of Appellee’s damage, which Appellant’s salesman should have foreseen. Secondly, because as defined in the court’s charge, foreseeability is not a subjective test, but an objective one of what “a reasonable prudent person, in the exercise of ordinary care, should have reasonably foreseen or anticipated. City of Dallas v. Maxwell, supra. Appellee’s position is correct here and will be sustained if, in view of another trial, it is supported by the proper findings and by the evidence.

III.

Appellant’s ninth and tenth points, briefed together, are the error of the court in refusing to submit Appellant’s Special Issues 3 and 4.

We cannot sustain this point inasmuch as the issues are not supported by the pleadings.

Our statement under point number 5, supra, relative to the disclaimer contained in the acknowledgment of orders is referred to here. The only additional statement required at this point are the issues 3 and 4 which, in effect, inquired whether Mr. Maurice W. Cole or Mr. Edgar H. Perry, III, on behalf of The Perry Company, saw or read the limitation of liability or disclaimer contained on the acknowledgment of orders sent by Appellant to The Perry Company, and, whether or not an ordinary prudent person in the exercise of ordinary care would have read the limitation of liability or disclaimer on the acknowledgments of orders sent by Appellant to The Perry Company. Should the pleadings be amended, the issues are germane and should be submitted.

Appellant’s point of error No. 11 is that of the trial court in submitting Special Issue No. 27 over defendant’s objection that it permitted the recovery of double damages, in that under the only evidence on the subject the value of good will supposedly lost by plaintiff as inquired about in Special Issue 28, necessarily included loss of profits for 1966.

We sustain this point.

The court submitted Special Issue No. 27 as to the amount of damages sustained by Appellee because of loss of profits for 1966 and Special Issue No. 28 as to its damage sustained for loss of good will.

In its brief Appellant concedes that under a proper showing damages can be awarded for both loss of profits and loss of good will. This is a correct statement under the law. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627 (1926); Texas & P. Ry. Co. v. Mercer, 127 Tex. 220, 90 S.W.2d 557, 106 A.L.R. 1299 (1936); City of Dublin v. Hicks, 120 S.W.2d 872 (Tex.Civ.App. Eastland 1938, no writ).

The only testimony regarding the value of the good will of the business was that of Mr. Ben Barr, senior member of Appellee’s accounting firm, and he testified substantially that anyone buying the good will of a business would expect to recoup the money he paid for the good will from the profits of the business in five years.

A part of Mr. Barr’s testimony on this point is as follows:

“A By one computation of profits, I would say the value of good will roughly, was $255,000.00, or was, immediately before the defective production.
Q And what is the basis of that computation ?
A I assume that anyone buying the business would want to receive a payback, get his money back through profits, in a five-year period. That is, profits in a five-year period would reimburse him for what he had to pay for good will. * * ⅜«

In response to Special Issue No. 27 the jury found the amount of lost profits for 1966 to be $15,000.00 and the value of the loss of good will to be $75,000.00 — exactly five times the profit for one year, evidently in deference to Mr. Barr’s formula.

This evidence of the value of good will is insufficient to uphold the award made. A suggested formula for evaluating good will is stated in Taormina v. Culicchia, 355 S.W.2d 569 (Tex.Civ.App. El Paso 1962, writ ref’d n. r. e.).

Points of error 12 through 18 complain of the jury’s answer to certain special issues as being greatly against the weight and preponderance of the evidence. In view of the position we have taken in this case, it would be futile to discuss these evidentiary issues.

Likewise, we will not discuss Appellant’s points numbers 19 and 20 which deal with the amount of the judgment being excessive.

We reverse this judgment and remand the cause for a new trial.

Reversed and remanded.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that in September of 1984 The Perry Company agreed with L. W. Smith to buy and use Super Kem Var M paint to finish its 1965 diving boards?
      Answer this issue ‘Ves’ or ‘No.’
      Answer: Yes
      SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that in September, 1964, L. W. Smith knew that The Perry Company intended to use Woodyouth and not Homoclad with Super Kem Var M paint in finishing its 1965 diving boards?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the foregoing issue ‘Yes’ and only in such event answer the following special issue.
      SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that in September, 1964, L. W. Smith knowing that The Perry Company intended to use Woodyouth and not Homoclad, if you have so found, warranted to The Perry Company that Super Kem Var M applied as directed by him would be suitable for finishing its 1965 diving boards?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      In connection with the foregoing special issue you are instructed that a warranty is any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.
      If you have answered the foregoing issue ‘Yes’ and only in such event answer the following special issue.
      SPECIAL ISSUE NO. 4: Do you find from a preponderance of the evidence that such warranty, if any, by L. W. Smith was relied upon by The Perry Company until June of 1965 in buying and using Super Kem Var M paint in finishing its diving boards?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the foregoing issue ‘Yes’ and only in such event answer the following special issue.
      SPECIAL ISSUE NO. 5: Do you find from a preponderance of the evidence that the reliance by The Perry Company on such warranty, if any you have found, was reasonable under the circumstances V
      Answer ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the foregoing issue ‘Yes’ and only in such event answer the following special issue.
      SPECIAL ISSUE NO. 6: Do you find from a preponderance of the evidence that Super Kem Var M applied as directed by L. W. Smith was not suitable for finishing the 1965 diving boards of The Perry Company?
      Answer this issue ‘It was not suitable’ or ‘It was suitable.’
      Answer: ‘It was not suitable.’
      If you have answered the foregoing issue ‘It was not suitable’ then and only in such event answer the following special issue.
      SPECIAL ISSUE NO. 7: Do you find from a preponderance of the evidence that The Perry Company’s use of Super Ken Var M paint from November of 1964 until June of 1965 applied as directed by L. W. Smith was a proximate cause of the damage, if any, to The Perry Company?
      Answer ‘Yes’ or ‘No.’
      Answer: Yes”

      . “SPECIAL ISSUE NO. 12: Do you find from a preponderance of the evidence that, in informing The Perry Company before November 23, 1964, how Super Kem Var M paint should be applied to its 1965 diving boards, L. W. Smith failed to direct such company to apply two coats of Super Kem Var M paint under and in addition to the sand tread?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 13: Do you find from a preponderance of the evidence that such failure, if any, was negligence?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 14: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of damage to The Perry Company?
      Answer this issue ‘Tes’ or ‘No.’
      Answer: Yes
      SPECIAL ISSUE NO. 15: Do you find from a preponderance of the evidence that, in informing The Perry Company before November 23, 1964, how Super Kem Var M paint should be applied to its 1965 diving boards, L. W. Smith directed such company to add cabosil to Super Kem Var M paint applied to the sand tread area?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 16: Do you find from a preponderance of the evidence that such direction, if any, was negligence ?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 17: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of damage to The Perry Company?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      SPECIAL ISSUE NO. 18: Do you find from a preponderance of the evidence that, in informing The Perry Company before November 23, 1964, bow Super Kem Var M paint should be applied to its 1965 diving boards, L. W. Smith failed to direct such company to apply one coat of Super Kem Var M paint over the sand tread?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: Yes
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 19: Do you find from a preponderance of the evidence that such failure, if any, was negligence?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: No
      If you have answered the last preceding special issue ‘Yes,’ then, and in that event only, you will answer the following
      SPECIAL ISSUE NO. 20: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of damage to The Perry Company?
      Answer this issue ‘Yes’ or ‘No.’
      Answer: -’ ”

      . The books and records from which he drew such conclusions are the same books and records which are discussed under Appellant’s points one and two, supra.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    In the Matter of Charles Dennis SMITH, a Delinquent Child, Appellant, v. STATE of Texas, Appellee.
    Mo. No. A 1735.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1968.
    Rehearing Denied March 6, 1968.
    Andres Hernandez, Jr., San Antonio, for appellant.
    James E. Barlow, San Antonio, for ap-pellee.
   BARROW, Chief Justice.

Appellant filed this motion on January 31, 1968, for an extension of time within which to file the transcript and statement of facts. Final judgment was entered on September 20, 1967, and appellant’s motion for new trial was overruled on October 31, 1967. On November 9, 1967, appellant filed his affidavit of inability to pay the costs of appeal, as authorized by Rules 355, 356, Texas Rules of Civil Procedure. On December 7, 1967, the statement of facts was requested, but, because of other reporting work, the Court Reporter was unable to complete the statement of facts until January 30, 1968.

Appellant’s motion for extension of time was not filed until the 92d day after the order was entered overruling appellant’s motion for new trial. Accompanying said motion is an agreement of the attorneys made on January 30, 1968, to the effect that appellant may file the transcript and statement of facts at any time within thirty days after the expiration of the time otherwise provided by law and expressly waiving all requirements of the law to the contrary.

Rule 386, T.R.C.P., requires the appellant to “file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, * * *; provided, by motion filed before, at, or within a reasonable time, not exceeding fiften days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.” See also Rules 5 and 437, T.R.C.P.

These provisions are mandatory and jurisdictional and must be complied with in order to invoke appellate jurisdiction. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Whitt v. Hartgraves, 412 S.W.2d 344 (Tex.Civ.App.—San Antonio 1967, no writ); Appellate Procedure in Texas, § 11.5(1). Where the motion is not filed within 75 days from the order overruling the motion for a new trial, it cannot be considered by the Court of Civil Appeals, even by agreement of the parties. Consolidated Casualty Ins. Co. v. Wade, 373 S.W.2d 841 (Tex.Civ.App.—Corpus Christi 1963, writ dism’d); Armstrong v. West Texas Rig Co., 339 S.W.2d 69 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.); Smith v. Crouch, 323 S.W.2d 73 (Tex.Civ.App.—El Paso 1959, writ dism’d).

The motion is denied.

CADENA, J., not participating.


author: BARRON, Justice.

text:
    John O. COX, Appellant, v. MEDICAL CENTER NATIONAL BANK, Appellee.
    No. 72.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 21, 1968.

      J. Robert Harris, L. A. Greene, Jr., Houston, for appellant.
    Robert H. Fisher, Carl & Lee, Houston, for appellee.
   BARRON, Justice.

Appellant, John O. Cox, sued Medical Center National Bank and Trinity Arms Apartments, a corporation, in trespass to try title, seeking to set aside foreclosure of a deed of trust lien executed by one Joseph Smith, whose title appellant had acquired subject to the deed of trust through execution sale. In the alternative, appellant sought damages and to impress an equitable lien on the real property to secure payment of a damage claim. Appellant joined International Insurance Company, Alliance Mutual, Pacific Indemnity Company and Employers Liability Association as stakeholders, by reason of a fire which occurred and which damaged some of the improvements on the property, claiming liability of the insurance companies to appellant by reason of such fire under policies issued to the bank. The claim for damages was in the amount of $26,500.00 against appellee, Medical Center National Bank, a sum alleged by appellant for keeping construction work going on 106 apartments being constructed on the premises, and for $37,-000.00 for payment of accrued interest and breach of an alleged agreement between Cox and the bank. Trinity Arms Apartments filed a disclaimer and is out of the case.

The appellee, Medical Center National Bank, filed a motion for summary judgment supported by affidavit of Alfred L. Raney, an officer and director of the bank, a promissory note in the principal sum of $660,000.00, deed of trust from Joseph L. Smith in favor of Medical Center National Bank, extension of deed of trust, and the appointment of a substitute trustee, and substitute trustee’s deed to the involved property to Medical Center National Bank. Appellant answered the motion for summary judgment with affidavits signed by John O. Cox, William L. Edmundson, III, and Sam Williamson. Sheriff’s deed to the property was also attached showing sale to Cox on October 5, 1965, under an execution against Smith, whereby Cox became the record owner of the property in place of Smith, subject to the deed of trust lien aforesaid.

On August 2, 1967, after hearing on the motion for summary judgment, the trial court severed appellant’s claim for damages and ordered a separate trial thereon. It was further decreed that appellant take nothing on his claims of title and liens against the real property involved and that he take nothing against the four insurance companies. In effect, the trial court granted the bank’s motion for summary judgment in trespass to try title. From the judgment of the trial court appellant, Cox, has appealed the adverse judgment on claim of title, claim of lien, and claims against the insurance companies as stakeholders.

The affidavit of Alfred L. Raney, official of appellee bank, shows that on October 20, 1964, Joseph L. Smith executed a promissory note for $660,000.00 payable to the order of Medical Center National Bank and on the same date executed a deed of trust to Raney, as trustee, covering two tracts of land totaling 3.3529 acres in Harris County. The execution and delivery of the note and deed of trust were in connection with construction of new improvements upon the tracts of land. The bank had advanced to Smith a total of $196,-826.05 on the note, which matured as extended, on May 31, 1965. On May 31, 1965, the sum of $4,062.59 interest had accrued on the advances made to Smith, making $200,888.64 owing on the note at maturity. Default was made by Smith on the note. It developed that Smith had purported to create a first mortgage on said land but in fact had conveyed the land subject to an unpaid purchase money indebtedness which the hank subsequently purchased in order to protect its security, paying the sum of $52,162.50 therefor. The default having continued, a substitute trustee was named under the provisions of the deed of trust, and one, Richard Therrien, was requested by the bank to exercise the trust by foreclosure of the deed of trust lien. Immediately thereafter notices of foreclosure sale were posted to sell the land at public sale on the first Tuesday in November, 1965. Meanwhile, Cox had purchased the land at an execution sale on October 5, 1965, and was, at the time, owner of Smith’s title to the property. After a conference on October 4, 1965, between Raney and Cox, the property was not sold in November, 1965, because the bank had agreed to accept the sum of $1,015.56 in payment of interest by Cox which had accrued through the first Tuesday of November, 1965. Raney’s affidavit shows that the maturity date of the indebtedness was not extended. He further denies that there were any other promises or representations made by the bank, and stated that it was clearly understood with Cox that notices of trustee’s sale would be reposted so that the property could be sold the first Tuesday of the following month. Thereafter, notices were posted each consecutive month, but the sale of the property was withheld in December, January and February because on the sale day of each month interest on the indebtedness for the past month was tendered to and accepted by the bank. When no tender of the principal indebtedness was ever made, Medical Center National Bank declined to accept any further tender of interest, and upon request of the bank, the substitute trustee sold the property on March 1, 1966 to the bank for a consideration of $120,000.00 cash, to be credited on the note. At the time, the indebtedness secured by the deed of trust was wholly past due and owing. No representation was made that there would be no eventual foreclosure.

Appellant, Cox, in his affidavit, disputes certain portions of Raney’s affidavit. He stated that between February, 1965 and March, 1966, he paid out sums of money to the bank, to various contractors and suppliers in connection with the construction project, and that the money was paid in reliance on statements and representations made by Mr. Raney, acting for the bank. He stated that Raney told him that the bank would postpone foreclosing its lien on the construction project so long as progress was being made toward permanent refinancing of the project and completion of the construction and so long as the interest on the Smith loan was paid as it accrued. He further stated that he “paid the interest on the Smith loan to Medical Center National Bank as it accrued.” He further stated that he talked with various people about refinancing the project and had worked out an arrangement with a lender for permanent financing and received a commitment on the new loan. He obtained releases from contractors and suppliers on the project and placed same with a title company pending closing of the deal, and that he advised Raney of the above. Cox’s statements were to some extent corroborated by the affidavits of Williamson and Edmundson, who claimed to have been present at the time of the conversation between Cox and Raney on or about Octoher 4, 1965.

The nature and extent of the promises or representations made by Raney in his conversations with Cox controls the right of the bank to foreclose its lien on the property involved. The controlling question is the legal effect of Raney’s oral statements that foreclosure would be withheld if Cox would pay the interest on the loan. There was no agreement on the part of Raney, for the bank to withhold foreclosure for any definite time, and it has been held that an oral agreement of this kind is made without consideration. John Hancock Mut. Life Ins. Co. v. Howard, 85 S.W.2d 986 (Tex.Civ.App.), writ ref.; Jacobson v. National Western Life Ins. Co., 403 S.W.2d 528, 530 (Tex.Civ.App.), no writ hist. Therefore, the agreement itself cannot be enforced, conceding that it was made.

But appellant apparently does not base his rights concerning title upon contract. Appellant’s rights are based upon an alleged temporary waiver or estoppel by the bank of its right to sell the property under the deed of trust. See John Hancock Mut. Life Ins. Co. v. Howard, supra. It is clear that the indebtedness owed to the bank was fully matured and that default had long been made in its payment. Appellant relies upon Raney’s statement that the bank would not foreclose so long as the interest is paid. The undisputed facts are, however, that the bank did forego foreclosure during November, December, January and February upon payment of interest by Cox, and we believe that to hold that the bank was permanently deprived of its right to foreclose its lien, or deprived of its right to foreclose at a time deemed necessary by the bank to protect its investment, would be unreasonable and at variance with the plain written terms of the deed of trust. There is no tender of either payment of interest for February, 1966, or payment of principal by Cox shown in the record.

There is no claim that the principal of the note would ever be paid by Cox and there is no claim that the property was sold without notice to Cox so he could raise the money and pay the note. It cannot be successfully contended that Raney’s statements on October 4, 1965, amounted to anything more than a temporary waiver or that the bank became estop-ped to foreclose the lien for more than a short period. A new agreement was made each month a sale was delayed and this testimony stands unrefuted in the record. It has been held that the fact that negotiations were pending for renewal of indebtedness does not constitute a defense and is not such an irregularity as will warrant a setting aside of the sale. Sparkman v. McWhirter, 263 S.W.2d 832, 837 (Tex.Civ.App.), writ ref. The deed of trust here contained a provision that in case of sale a presumption results that all prerequisites to the sale had been performed. It is clear that all steps necessary to a lawful foreclosure of the bank’s lien were taken, and there is nothing in the record to rebut the presumption of validity. Jacobson v. National Western Life Ins. Co., supra; 39 Tex.Jur.2d 210. The trial court fully protected appellant by severing the damage claim and ordering a separate trial thereon. If appellant has suffered any loss, that action offers him his opportunity for full relief. It cannot be said that the bank is to be deprived of its right to enforce its mortgage by oral, general statements of an official of the bank that no foreclosure would be had so long as the interest is paid, when the principal indebtedness is seriously in default and after the bank has delayed its foreclosure for four months. Mizell Const. Co. & Truck Line, Inc. v. Mack Trucks, Inc., 345 S.W.2d 835 (Tex.Civ.App.), no writ hist. To give the effect desired by appellant to such a statement would be to nullify the primary obligation created by the note and to do violence to the written terms of the deed of trust.

Rules governing summary judgment are well stated in the case of Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup.). Summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as. to the existence of a genuine issue as to a material fact are resolved against him. Evidence which favors the movant’s position is not considered unless it is uncontra-dicted, and if such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. This exception is especially true where the opposite party has the means and opportunity of disproving the testimony if it is not true, and fails to do so.

In the present case none of the prerequisites to a valid sale have been controverted by appellant, except that appellant stated that the bank promised to fore-go foreclosure if the interest on the note held by the bank was paid as it accrued. Appellant further stated that he paid the interest as it accrued. It is uncontroverted that $200,888.64, principal and interest, had matured on May 31, 1965, and that default was made by Smith on that date. The maturity date of said indebtedness was not extended. Notices were posted each consecutive month, but the sale of the property was withheld in November, December, January and February because on the sale day of each month interest on the indebtedness for the past month was tendered to the bank by Cox, and was accepted by the bank, each time (subsequent to Raney’s statements of October 4, 1965) without any agreement, promise or representation that the maturity of the indebtedness would be extended or the remedy of foreclosure abandoned. Each time interest was paid subsequent to the October 4, 1965 meeting, it was clearly understood by Cox that the principal indebtedness remained matured and that, although the sale was not held in the month in which the interest was paid, notices, of trustee’s sale would be reposted for a sale in the following month. No tender of any portion of the principal indebtedness, nor any interest payment for February before the sale date on March 1, 1966 was made by Cox, and the property was sold under the deed of trust to Medical Center National Bank. No tender of interest payments by Cox is shown in the record from January, 1966, to date of trial on July 3, 1967. While Cox stated that he paid the interest as it accrued, the statement is general and amounts to a conclusion. No specific facts were given by him showing when the payments were made or tendered and for how long or how much. No reasons were given for such failure, and though he had the opportunity to explain the matter specifically if it were true, he made no further statements regarding payment and tender. None of the above material facts were controverted by appellant. The affidavit of Raney, for the bank, was clear, direct and positive, and we believe the material facts above, undenied or unexplained by appellant, clearly warrant the trial court’s action in granting summary judgment in favor of Medical Center National Bank unholding the validity of the sale and the bank’s title. Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.), writ ref., n. r. e.; Midwestern Development Co. v. Dunlap, 389 S.W.2d 112 (Tex.Civ.App.), writ ref., n. r. e.; Jacobson v. National Western Life Ins. Co., supra. In a summary judgment proceeding, the opponent must show opposing evidentiary data raising an issue as to a material fact in order to defeat the motion. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492.

Appellant’s claims against the four insurance companies were dependent upon his establishing title to the real property. Since the matter of title was determined adversely to him, it follows that relief against the insurance companies was also correctly denied.

Appellant’s action for damages by reason of an alleged contract or agreement with the bank remains on the docket of the trial court. The trial court had the power to sever that action, and it correctly did so. Rule 41, Texas Rules of Civil Procedure.

We have examined each of appellant’s contentions and we find no reversible error. The judgment of the trial court is affirmed.

Affirmed.


author: FANNING, Justice.

text:
    MRS. BAIRD’S BREAD COMPANY et al., Appellants, v. P. A. WILLIAMS, Appellee.
    No. 7866.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1968.
    Rehearing Denied March 12, 1968.

      Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellants.
    Bascom Perkins, Perkins & Perkins, Mt. Pleasant, for appellee.
   FANNING, Justice.

A truck-automobile collision case. P. A. Williams sued Mrs. Baird’s Bread Company, a corporation, and its employee truck driver, Banks, who was acting in the scope of his employment, for damages for personal injuries, occasioned by the collision of defendant’s bread truck with plaintiff’s automobile. The collision in question occurred at the intersection of North Van Burén and West 12th Streets in the City of Mount Pleasant, Titus County, Texas. Plaintiff was driving on W. 12th Street, a through street, and had the right of way and was almost through the intersection when the bread truck collided with the right rear fender and bumper of his automobile. In response to special issues submitted a jury found to the effect that defendants were guilty of several acts of negligence proximately causing injuries to the plaintiff. The jury found to the effect that Banks failed to keep a proper lookout, failed to stop the bread truck at a stop sign at the intersection, that Banks drove the truck into the path of the P. A. Williams automobile, that Banks failed to apply the brakes on his truck as a person of ordinary prudence would have done under the same or similar circumstances. The jury in response to the damages issues, 12, 13, 14 and 15, awarded plaintiff $21,000.00 for his injuries, plus $737.65 for past doctor, medical and hospital expenses, plus $2,000.-00 for future doctor, medical and hospital services, aggregating a total award of $23,-737.65. The jury in response to special issues submitted also acquitted the plaintiff of any and all acts of contributory negligence. Judgment was entered for plaintiff upon the verdict of the jury and appellants have appealed.

Appellants present 8 points upon appeal. Appellants’ points 1, 2 and 3 are briefed together and are as follows:

“POINT OF ERROR NO. 1
“THE VERDICT OF THE JURY, FINDING THAT THE PLAINTIFF, P. A. WILLIAMS, WAS NOT NEGLIGENT IN FAILING TO KEEP A PROPER LOOKOUT WHICH NEGLIGENCE WAS A PROXIMATE CAUSE OF THE COLLISION IN QUESTION, IS CONTRARY TO THE OVERWHELMING WEIGHT AND PREPONDERANCE OF THE EVIDENCE AND IS, IN FACT, NOT SUPPORTED BY ANY EVIDENCE.
“POINT OF ERROR NO. 2
“THE VERDICT OF THE JURY, FINDING THAT THE PLAINTIFF, P. A. WILLIAMS, WAS NOT NEGLIGENT IN FAILING TO KEEP A PROPER LOOKOUT WHICH NEGLIGENCE WAS A PROXIMATE CAUSE OF THE COLLISION IN QUESTION, IS SUPPORTED BY INSUFFICIENT EVIDENCE.
“POINT OF ERROR NO. 3
“THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR NEW TRIAL OF DEFENDANTS, MRS. BAIRD’S BREAD COMPANY AND ALVIN DEWEY BANKS, FOR THE REASON THAT THE UNCON-TROVERTED EVIDENCE ESTABLISHES AS A MATTER OF LAW THAT PLAINTIFF, P. A. WILLIAMS, FAILED TO KEEP A PROPER LOOKOUT.”

For a comprehensive discussion of the law applicable to the determination of such character of points, see Chief Justice Calvert’s article, “No Evidence and ‘Insufficient Evidence’ Points of Error”, 38 Tex. Law Rev., No. 4, p. 361.

The collision in question occurred on May 26, 1966, about 12:45 P.M. at the intersection of West 12th Street with North Van Burén Street in the City of Mount Pleasant, Texas. West 12th Street runs generally in an East and West direction and North Van Burén runs in a North and South direction. North Van Burén dead-ends into West 12th at the intersection where the collision occurred. Photographs of the intersection are shown in the record. There was a large stop sign erected on North Van Burén Street, so as to indicate that motorists should stop before proceeding into the intersection with West 12th Street. There were no stop signs or traffic signals on West 12th Street at this intersection. Plaintiff P. A. Williams was driving East on West 12th Street at about 20 or 25 miles per hour; and he had observed defendant’s bread truck coming from the South on North Van Burén when he was 40 to 50 feet from the intersection. Williams was quite familiar with W. 12th Street as he lived on it and it was a street which led towards the place where he was working and he was familiar with the stop sign at North Van Burén Street and he expected the bread truck to stop at the stop sign before proceeding into the intersection with W. 12th Street.

Considering the evidence most favorable to the verdict as we must do with respect to the “no evidence” question, about the time he entered the intersection, Williams turned his head to the left to spit tobacco and immediately the bread truck came into W. 12th Street and struck the right rear quarter panel and bumper of Williams’ automobile. Williams admitted that he did not see the bread truck at the exact time of the impact as his head was turned to the left but that his automobile had already passed the intersection when the bread truck hit the right rear fender and bumper of his automobile. There is evidence from plaintiffs’ witnesses that indicates that the collision occurred at a time when defendant’s truck was about four feet into the intersection and that Williams’ automobile was through or virtually through the intersection when the defendant’s bread truck struck Williams’ car at its right rear bumper and right rear fender.

Banks, the driver of defendant’s bread truck, while claiming that he had stopped at the stop sign on North Van Burén, admitted that he did not look to his left from where the Williams car was coming, before proceeding to the intersection, and he detailed his version of the collision, in part, as follows:

“Q. What size bread truck was this that you were in that day, sir ?
A. It’s a one ton van type.
Q. Is it dual wheeled?
A. Yes, sir.
Q. All right, You say then you proceeded north on North Van Burén Street and you knew where that stop sign was, •didn’t you?
A. Yes, sir.
Q. You had driven that many times?
A. Yes, sir.
Q. It was a large visible stop sign there, wasn’t there?
A. Yes,-sir.
'Q. All right, when you drove up there and stopped now did you look to your left?
A. No, sir.
Q. Why didn’t you look to your left?
A. It’s just a habit. I always look to the right to see if this is clear before checking out this way then I look to the left before taking off.
Q. If you had looked would there have '.been anything to keep you from seeing Mr. Williams’ vehicle coming from the left when you looked?
A. I would have saw it when I did look before I took off.
Q. But you never did look and never did see the vehicle, did you ?
A. Not until he came in front of me.
Q. Tell the jury whether you even saw Mr. Williams’ vehicle?
A. When I turned to look around and looked — just as I turned my head when he went by the front of me.
Q. Are you telling the jury then that you never saw Mr. Williams’ vehicle at all until he passed in front of your truck ?
A. The top of it was right in front of the truck when it hit.
Q. You didn’t see him at all?
A. I hadn’t looked that way.
Q. Why didn’t you see Mr. Williams’ aiitorpobi-le then?
A. I was looking this way then going to look this way before I went out into the street. (Indicating)
Q. But this is the reason you tell the jury you didn’t see him, you just never did even look to see, is that right?
A. I was fixing to look this way before I went out into the street.
Q. Fixing to look? Now, you are not telling the jury that your truck wasn’t out in West 12th Street when Mr. Williams hit it, are you ?”
***** *
“WITNESS : I would say approximately like. I had the vehicle it might have been, if it was measured there, maybe that left corner a few inches out but not much.
Q. You testified a minute ago you saw it as it came by there before it hit, didn’t you?
A. Not until the bumper hit it.
Q. What part of the Williams’ car hit your car?
A. His left bumper right on the corner where it wraps around the fender.
Q. Are you confused? His left bumper or right bumper ?
A. I’m sorry, his right bumper.
Q. His right rear bumper hit what portion of your truck?
A. The left corner of my bumper where it curves just a little.
Q. And you tell the jury you never even saw it until it hit ?
A. No, sir. When the lick hit, I was just fixing to turn around and he was going by me just about the same time.”

Appellant, among other contentions, contends that appellee, Williams, by his own testimony conclusively showed as a matter of law that he was not keeping a proper lookout and that same as a matter of law was a proximate cause of the collision. In this connection appellant quotes testimony of appellee with respect to turning his head and spitting tobacco out of the car window. At one place in his testimony ap-pellee stated that the time elapsed for this purpose was two or three seconds. However, he later modified this testimony to the effect that the time elapsed was a second or a second and a half, probably a second. We quote from appellee’s testimony in part as follows:

“Q. Now then, about how long did you stay with your head turned spitting out the window?
A. Oh, possible two seconds or three.
Q. All right, sir. With your car moving, of course, 20 or 25 miles an hour?
A. Yes, sir.
Q. Do you know how many feet per second an automobile is moving when it is going say 20 miles an hour ?
A. I don’t know that. But I know that a car moving at 60 miles an hour is traveling 88 feet a second. 30 would be 44 feet a second and 20 miles an hour— it could be traveling 22 feet a second.
Q. About 22 feet per second?
A. Yes, sir.
Q. So then you would travel in the time that you did this at least 44 feet, is that correct, sir, 44, maybe 50 feet ?
A. Well, I kon’t know. But traveling 20' miles an hour, if I turned my head at that intersection to spit — if I was out of it a second — I wouldn’t know how to judge that exactly. But assume I was a second or second and a half, you just turn your head and spit and come back.
Q. Just kind of like that? (Snappingfingers)
A. That’s right. Probably a second.. Well I could have traveled 20 feet, 22 feet.”

Under the record in this case ap-pellee Williams had the right-of-way as he was proceeding East on West 12th Street. Under the provisions of Art. 6/01d, Sec. 73(b), the Baird’s truck driver Banks was required to stop the bread truck at the stop sign on North Van Burén and to proceed cautiously, yielding to vehicles not so obliged to stop which were in the intersection or approaching so closely as to constitute an immediate hazard. Under his own testimony the truck driver Banks failed to do this. Appellee Williams, while having seen the bread truck approaching on North Van Burén, when Williams was-about 40 or 50 feet back from the intersection, was not required to anticipate that defendant’s bread truck and defendant’s driver would negligently or unlawfully fail to yield to appellee Williams the right-of-way. Intges v. Dunn, 311 S.W.2d 877, Tex.Civ.App., wr. ref’d. n.r.e. (1958); Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112, Tex.Comm.App., op. adopt. (1942); Seinsheimer v Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Tex.Comm.App., op. adopt. (1939); Hooper v. Holt et al., Tex.Civ.App., 416 S.W.2d 916, no writ (1967). Although appellee Williams had the right-of-way, yet ordinary care required him to keep a proper lookout as he proceeded through the intersection. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (Tex.1955); Hooper v. Holt, et al., Tex.Civ.App., 416 S.W.2d 916, no writ (1967). Haying the right of way does not solve Mr. Williams’ contributory negligence problem, hut it does limit the reach of his conduct. Hooper v. Holt, et al., supra. Mr. Williams’ duty to maintain a proper lookout was the duty of a person with the right of way under no obligation to anticipate Bank’s negligent or unlawful conduct; and Williams’ conduct, to he negligent, must have violated his duty.

Ordinarily, proper lookout is a question for the jury. Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946). The appellate court, in considering “no evidence” questions must consider that evidence, if any, which viewed in its most favorable light supports the jury’s findings. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

Viewing the evidence most favorable to the verdict of the jury with respect to the issues exonerating appellee of contributory negligence, it is our view that there is evidence of probative force in the record to support the view, that although the appellee was not looking for a very short period of time, as indicated by the record, while spitting tobacco, nevertheless a fact question is raised that even if he had been looking all of the time, he vyould not have had time to take precautionary action to prevent the collision after he had discovered that the bread truck was not going to stop or was not going to proceed into the intersection in a cáutious manner and therefore appellee, would not therefore be guilty of negligence, as a matter of law, in failing to avoid the collision. It is our further view that this record does not show, as a matter of law, that any alleged negligence on the part of appellee Williams was a proximate cause of the collision in question.

We hold that there was evidence of probative force to support the jury’s findings to the issues exonerating appellee Williams of any contributory negligence.

We also hold that the findings of the jury exonerating appellee Williátns df'a'ny contributory negligence are supported by sufficient evidence.

We have also carefully considered the entire record in this case in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), and hold that the findings of the jury exonerating appellee Williams of contributory negligence were not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellants’ points 1, 2 and 3 are overruled.

Appellants’ points 4, 5, 6 and 7 are briefed together, and complain of the trial court’s refusal to sustain appellants’ objections to arguments of appellee’s attorneys, in failing to instruct the jury to disregard, and in overruling appellants’ motion for new trial on account of the arguments complained of by appellants as arousing passion and prejudice against appellants and alleged by appellants as resulting in passion and prejudice on the part of the jury against appellants.

The arguments complained of, the objections of appellants, request for instructions, statements of counsel and statements of the court, in connection with the matters above complained of by appellants, are shown in the statement of facts as follows :

“Now, members of the jury, we come down now to the issue as to how much this jury will award the plaintiff, P. A. Williams, for damages suffered in this accident.
“Now, this is something to me that is amazing as to the amount of damages that the defense lawyers want to give to people who are hurt and crippled in accidents. They are all alike, Mr. Waldrop is no different, they smile, they talk nice, they are polite and they do everything except pay you.
“Now, who is entitled to be paid? We are not filing any charges against Mr. Banks. All we want is the Baird’s Bread Company, a corporation that neither lives nor dies and who operates trucks in East Texas—
“MR. WALDROP: Your Honor, I am going to have to object to this line of argument. First of all, Mr. Banks is a party to this suit and—
“MR. PERKINS: The corporation, just as a corporation. I am talking about the corporation.
“THE COURT: I don’t know. What does the proof show?
“MR. WALDROP: Your Honor, we agree its a corporation. But for him to argue in this fashion is highly prejudicial and an attempt to prejudice the jury. And we ask the Court to tell the jury not to consider it, to disregard it for any purpose.
“THE COURT: He has a right to mention it.
“MR. WALDROP: Note our exception.
“MR. PERKINS: The Baird’s Bread Company of Dallas, Texas, has the trucks operating in East Texas for the purpose of making money, that’s what they are operating their bread truck for, money, they are in business for money and for profit.
“MR. WALDROP: Without continually objecting, may I have a continual objection to this line of argument?
“THE COURT: Yes, sir. I will sustain the objection as to the money.
“MR. WALDROP: Would the Court please instruct the jury to disregard it for any purpose?
“THE COURT: Yes, sir.
“MR. PERKINS: And all we ask in this-lawsuit is that this jury award a sufficient judgment for damages to adequately compensate and pay Mr. Williams for the damages that he suffered as a result of this accident.”

Since the Supreme Court’s decision in Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953), the rule is well settled that before a judgment will be reversed because of argument of counsel, the argument must be improper and it must be that the same was reasonably calculated to cause and probably did cause, the rendition of an improper judgment in the case.

It is our opinion that the arguments and matters complained of by appellants in their points 4, 5, 6 and 7, as viewed in the light of the whole record in this cause, were not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the cause, and do not present reversible error. Rule 434, Texas Rules of Civil Procedure; The Development of the Harmless Error Rule in Texas, Calvert 31 Tex.Law Rev., No. 1, p. 17; Aultman v. Dallas Ry. & Term. Co., supra, (260 S.W.2d 596); Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954); Whitener v. Traders & General Insurance Co., 155 Tex. 461, 289 S.W.2d 233 (1956); St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27 (Tex.1965).

Appellants’ points 4, 5, 6 and 7 are overruled.

Appellants’ 8th point reads as follows:

“POINT OF ERROR NO. 8 RESTATED
“APPELLANTS MAKE SUGGESTION OF REMITTITUR UNDER RULE 440, TEXAS RULES OF CIVIL PROCEDURE, FOR THE REASON. THAT PASSION AND PREJUDICE OF THE JURY CAUSED IT TO BE EXCESSIVE AND IN DISREGARD OF THE EVIDENCE.”

In Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017, (1950), the Supreme Court, in construing Rule 440, Tex.R.Civ.P., stated in part as follows:

“ * * * We believe that under this rule a Court of Civil Appeals may require re-mittitur when, after consideration of the amount of the verdict and the evidence bearing upon the amount, it finds that the verdict is excessive and that the cause should be reversed for that reason only. The amount of the verdict itself, when considered in the light of the evidence in the record, may be enough to convince the Court of Civil Appeals that it was the result of passion or prejudice or other improper motive or was in disregard of the evidence. In our opinion there need not be extraneous proof of passion or prejudice on the part of the jury. Indeed, it would be in many cases very ■difficult and often impossible to make •that proof. The foregoing conclusions •find support in Judge Martin’s opinion, .•adopted by the Supreme Court in World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962.”

Also in this connection see Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).

The elements of damages in this case and the evidence pertaining thereto must be considered to determine whether the award as a whole appears to be reasonable compensation for the injuries sustained or whether ■same is excessive.

We do not construe appellants’ brief as complaining of the award of $735.-65 for past medical and hospital bills and the award of $2,000.00 for future medical and hospital bills. These two items have overwhelming support in the evidence and are not excessive under this record.

With respect to the damage issue wherein Mr. Williams was awarded the sum of $21,000.00, the jury was advised by the court substantially to the effect that it could take into consideration past physical pain and mental anguish suffered by Mr. Williams, if any, and physical pain and mental anguish, if any, which Mr. Williams would in reasonable probability suffer in the future, as a proximate result of the collision in question, and past loss of earnings, if any, and loss of earning capacity, if any, that Mr. Williams would in reasonable probability sustain in the future as a proximate result of the collision in question.

There was voluminous evidence introduced on the trial of the cause on the issue of damages suffered by appellee. This evidence consisted of detailed testimony of plaintiff as to his pain and suffering, his loss of past earnings and evidence relating to the reasonable probability of future loss of earnings. His wife corroborated him on his pain and suffering and other aspects of his injuries and inability to move his neck properly; many lay witnesses, including the Sheriff of Titus County, corroborated him in many respects with reference to his appearance and inability to move his neck properly and complaints of pain, etc. There was ample medical testimony to show his injuries and to corroborate his claims of pain and suffering.

On the date of the collision in question appellee Williams was hospitalized for a day and a half; ten days later he was readmitted to the hospital on June 6, 1966 and discharged June 23, 1966, for a total of 19i/£ days in the hospital. Dr. Ball, who had been Mr. Williams’ family doctor for 15 years, testified that Mr. Williams had been in good physical condition prior to the accident; that he suffered a severe sprain to his neck as a result of the injury; that the injury was sufficient to cause a tearing of the ligaments and stretching of muscles of the neck, causing internal bleeding; that the injury as it healed formed scar tissue which caused some fibrous tissue that restricted the motion in his neck; that it would likely cause traumatic arthritis m the future; that Mr. Williams had a very painful injury, that he was suffering pain the first time he saw him, that his pain continued through the trial which was about 1 year after the accident; that Mr. Williams would suffer pain the rest of his life. Dr. Ball further testified that Mr. Williams, after discharge from the hospital, was required to wear a cervical collar for many months and was treated by him once or twice a week for the entire year before the time of trial. Dr. Ball described the pain in Mr. Williams’ neck as being very severe and similar to a “crick” in the neck or severe arthritic pain in a joint or neck. Dr. Ball further testified that the patient could turn his neck to the right only 5 to 10 degrees when he should have been able to turn 45 degrees and that this was a permanent condition. In essence and in summation Dr. Ball firmly testified to the effect that Mr. Williams had a twisted and stiff neck, with the ability to move it to the right only 5 to 10 degrees, which was a permanent condition and that he knew of nothing in medical science that would correct the condition, and as heretofore stated, in his opinion Mr. Williams had an injury which caused severe pain, and would cause severe pain to Mr. Williams for the rest of his life.

Dr. Freiberg, who had examined Mr. Williams at the request of the defendant about 8 months after the accident, while not finding as much disability as Dr. Ball did, in his deposition testimony introduced in evidence, did find many of the things that Dr. Ball did, and found tenderness in Mr. Williams’ neck, found that Mr. Williams could not turn his neck to the right, that his neck was cocked to the right, that backward bending of the neck was markedly restricted and painful, found muscle spasm in Mr. Williams’ neck, diagnosed it as a severe sprain of the neck and Dr. Frei-berg concluded that “based on the fact that the findings are there after nearly eight months, I believe it is a fairly severe injury”.

The appellee was an automobile salesman and had a life expectancy of nearly 15 years. There was evidence in the record which would support a recovery for loss of past earnings in excess of $500.00; there was also evidence in the record which we think would support a recovery for some reasonable amount for loss of future earnings for the remainder of his life expectancy.

However, we think that damages with respect to past and future pain and suffering and menial anguish were much greater than the damages with respect to past loss of earnings and future diminished earning capacity. We think the evidence in this case was amply adequate to support a very substantial award for the items of past and future pain and suffering and mental anguish.

Considering all the evidence and the various elements of damages involved, we hold that the award of damages by the jury to plaintiff-appellee was not excessive under the record in this case. Appellants’ 8th point is overruled.

The judgment of the trial court is affirmed.