text:
    Lonzo HOLDMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38928.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.

      Thos. H. Dent, A. M. Wickliff, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, ten years.

The deceased, sixty-seven years of age, referred to by the witnesses as “ ‘Grandmother [Boone],’” worked at Mom’s Cafe at 9110 Scott Street in the city of Houston. It was shown by the state’s testimony that, on the night in question, appellant came to the cafe with one Handy Webb and Webb’s common-law wife, Ruby Lee Johnson.» While seated at a table drinking beer, appellant and Webb began arguing and the deceased asked them to leave. They left and later returned with a fifth of wine. When they resumed their arguing, the deceased again asked them to leave. Around 10 p. m., appellant got up from the table, went out the door, and then came back inside. The deceased again asked him to leave, saying that he was “running off” her customers. Appellant then got up and, as he started toward the front door, one Willie Watts, who was in the place, said to him: “ ‘You heard what Grandmother said, she wants you all to leave.’ ” Appellant turned around and said: “ ‘I’m not scared of no son-of-a-bitch in here,’ ” and produced a .22 calibre pistol, pointed it toward Watts, and fired. The bullet struck the deceased, who said: “T am shot,”’ and a scuffle ensued between appellant and Watts. In the scuffle, another shot was fired which struck appellant’s companion, Webb.

The deceased was carried from the scene to a hospital, where she died from a gunshot wound in the chest.

It was shown by the state’s testimony that at no time prior to the shooting did the deceased curse or in any way abuse the appellant.

Testifying as a witness in his own behalf, appellant stated that the pistol was not fired until after Willie Watts had hit him with a baseball bat and he was engaged in a struggle with Watts and two other customers, Leon Perry and Willie Lewis, who were in the place. Appellant stated that in the struggle he “pulled the pistol” and it “went off twice.” He swore that he did not shoot at the deceased or at anyone.

In submitting the issue of appellant’s guilt to the jury, the court gave application to the provisions of Art. 42, Vernon’s Ann.P.C., making certain acts done by mistake a felony, and instructed the jury that if they believed from the evidence beyond a reasonable doubt that appellant intended to kill Willie Watts by shooting him with a gun and while in the act of preparing for or executing the same through mistake or accident killed the deceased, they would find him guilty of murder with malice aforethought. The court further submitted to the jury the defense of accident and also charged the jury to acquit appellant if they believed he shot and killed the deceased through mistake or accident while defending himself against an unlawful and deadly attack about to be committed upon him by Willie Watts, Willie Lewis, and Leon Perry.

The jury by their verdict rejected appellant’s explanation of the shooting, and we find the evidence sufficient to sustain the judgment of conviction.

Appellant predicates his appeal upon one claim of error — that being certain alleged improper jury argument of state’s counsel. Such complaint is presented by a purported formal bill of exception, #2.

An examination of the record reflects that judgment was entered in the cause on June 1, 1964, and sentence was pronounced on July 30, 1964. The bill of exception was filed on September 29, 1964. On October 6, 1964, the court refused to approve the bill and noted his reasons thereon. Notice of the court’s action was duly given appellant. On October 14, 1964, appellant filed his objections to the court’s reasons for refusing the bill and took no further action in the matter. No bystander’s bill of exception was filed by appellant.

Under the provisions of Art. 760d of the Vernon’s Ann. Code of Criminal Procedure of 1925 prior to its repeal by the enactment of the present Code of Criminal Procedure which became effective January 1, 1966, the bill cannot be considered. Wortham v. State, 169 Tex.Cr.R. 164, 333 S.W.2d 158; Holley v. State, Tex.Cr.App., 366 S.W.2d 570; Lacy v. State, Tex.Cr. App., 374 S.W.2d 244.

Generally, the law in force at the time of the entry of judgment furnishes the rule by which an appeal in a criminal case is governed. 5 Tex.Jur.2d 17, Sec. 1.

The provisions of the new Code of Criminal Procedure which became effective January 1, 1966, are not applicable to the procedure relative to the approval of bills of exception prior to such effective date.

We observe, however, that under the provisions of Art. 40.09 of the new Code it would have been incumbent upon appellant to file a bystander’s bill of exception within fifteen days after receipt of notice of the court’s action, upon his being unwilling to accept the court’s qualification or refusal of the bill.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Almon MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39259.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, six years in the penitentiary.

Appellant was arrested in a warehouse belonging to Montag, Incorporated in Terrell, Kaufman County, Texas, at about 6:45 p. m. on January 30,1965, and the record of his trial discloses the following facts.

Imogine Everett testified that she saw an unidentified man on top of the Montag Corporation building, near which she lived, and she notified her son, who was employed by that firm. He in turn telephoned his “boss”, Mr. Bob Karr, who was shown to be the plant manager.

Mr. Karr testified that he arrived at the plant at about 6:15 and investigated the outside of the building without incident. He then entered the building, and during his search he caught a glimpse of the intruder, whom he unsuccessfully tried to apprehend, but who disappeared through a window into the warehouse section of the building. Mr. Karr then had an employee guard the only door into that part of the building while he called the police.

In a subsequent search of the large warehouse by law enforcement officers, appellant was located hiding among supplies and equipment, and in the process of his capture he was shot in the leg. The record shows that appellant was carrying a knife in his pocket, but was otherwise unarmed.

A brick was found outside the building by an open window, which had been broken in such a manner as to allow a person to reach inside and unlatch it. Mr. Karr testified that the window was not connected to the burglar alarm circuit used at the plant. He further testified that he knew of no way appellant could have entered the building except through the window, as the alarm system, which was connected to all openings to the building with the exception of these windows, had been activated at all times that day (Saturday), and he had secured the warehouse for the weekend the day before. No alarm had sounded. He stated that he did not give appellant or anyone permission to break the window or to enter the building.

The record further shows that a metal filing cabinet in one of the offices in the building had been forced open and damaged, but nothing was found to be missing.

The evidence is sufficient to sustain the conviction.

Appellant by formal bill of exception contends the trial court erred in overruling his motion to quash the indictment because the members of the grand jury returning this indictment during the February term of 1965 were shown to have been selected by jury commissioners at the July term, 1965. Appellant contends that this is impossible and contrary to law. The trial judge approved appellant’s bill with the qualifications approved by appellant’s counsel that “the envelope in which the ‘list of grand jurors selected’ was sealed and contained was introduced in evidence bearing the following writing ‘The List of Grand Jurors for the Feb. term, 1965 Selected at July term, 1964 * * *.’ ” From the record it does not appear that there was a transgression of Arts. 333-341, Vernon’s Ann.C.C.P. which are the statutory requirements for the selection of the grand jurors returning the indictment.

It is contended that there is a fatal variance between the allegation of ownership and the proof, in that the indictment alleged that the property was occupied and controlled by Bob Karr, while the proof does not support this allegation. We do not agree. The proof shows that Mr. Karr was the Plant Manager and in charge and control of the building. There was also evidence that a Mr. McRoberts was a division manager of the corporation, and also that there was an office manager at the plant, and that none of these people actually owned any of the property involved.

In Dean v. State, 165 Tex.Cr.R. 417, 308 S.W.2d 501, the conviction was for theft of liquid petroleum gas. This Court, in overruling a contention similar to the one made herein, held that it was proper to allege ownership in the district superintendent, supervisor, foreman, or plant superintendent. See also Ritchie v. State, 171 Tex.Cr.R. 51, 344 S.W.2d 878; Ligon v. State, 170 Tex.Cr.R. 632, 344 S.W.2d 168. The evidence here establishes that Bob Karr exercised actual control and management of the property involved.

Finding no reversible error, the judgment is affirmed.


author: MORRISON, Judge.

text:
    James B. DENNISON, Appellant, v. The STATE of Texas, Appellee.
    No. 38771.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied March 9, 1966.

      John H. Regner, amicus curiae, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen L. Stilley and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with two pri- or felony convictions alleged for enhancement; the punishment, life.

The witness Pike testified that on September 24, 1963, his green 1963 Pontiac sedan with the keys in the ignition was stolen from a parking lot in Houston. He further stated that some two days later he was notified by police that his car had been found and that on examining the car he found that the trunk lid had been pried off and that a cot, his tool box and the contents of his glove compartment were missing.

The witness Turner testified that he was present as a customer at the parking lot on the morning in question and that he saw the appellant in the lot at that time.

The witness Furlow testified that the appellant appeared at his place of business on the afternoon of the day in question in a green 1963 Pontiac sedan. The witness Knight corroborated Furlow’s testimony and further stated that he noted that the trunk lid on the Pontiac was bent at the lock, and that on observing a police car passing down the road a few minutes after appellant’s departure, he followed and saw the same car in a ditch with appellant nowhere in sight.

Mr. and Mrs. Harvey testified that as they were traveling home they observed the Pontiac driving away from Furlow’s and saw it careen into a ditch. Both witnesses placed appellant at the scene.

Officer Wedemeyer, who was called to the scene of the wreck, identified the license number of the vehicle as that belonging to Mr. Pike. He further stated that various articles removed from the vehicle were recovered in the underbrush behind the service station where appellant had been employed.

Testimony was introduced showing the value of the vehicle was over fifty dollars.

The prior convictions were shown by certified copies of the judgment, sentence and fingerprints of appellant. Further, Officer Warnke of the Bexar County Sheriff’s Department testified as to the date of the commission of the second prior offense in conformity with the rule in Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383.

Deputy Knowles, a fingerprint expert, testified that he took fingerprints from the appellant on the morning of the trial, and identified the fingerprints taken from appellant with those taken under the prior convictions.

Appellant’s contention with respect to the taking of his fingerprints while under arrest and without warning has been determined adversely to him in Gage v. State, Tex.Cr.App., 387 S.W.2d 679.

By amicus curiae brief it is contended that the record does not reflect that appellant was represented by counsel at the trial of the offenses alleged for enhancement. While there was no issue drawn at trial as to this contention, we note that the certified copies of the judgment in each case alleged for enhancement reflect that the defendant appeared in person and by attorney.

It is insisted that appellant was entitled to have the case submitted to the jury on the issue as to his guilt of the primary offense charged without reference to the allegations of the indictment charging prior convictions. This Court has held that such is not necessary. Punchard v. State, 142 Tex.Cr.R. 531, 154 S.W.2d 648, Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182, Whitlock v. State, 170 Tex.Cr.R. 153, 338 S.W.2d 721.

We find no error in the method by which the prior convictions were proven. Reyes v. State, 172 Tex.Cr.R. 82, 353 S.W.2d 450.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: BARROW, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Jennie Mae PRESTON, Appellee.
    No. 14448.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1966.
    Rehearing Denied Feb. 23, 1966.

      Beckmann, Stanard, Wood & Vance, San Antonio, for appellant.
    Morriss, Boatwright, Lewis & Davis, San Antonio, Howard M. Wayland, Houston, for appellee.
   BARROW, Justice.

Appellee, Jennie Mae Preston, brought this suit to recover death benefits under an endorsement to a workmen’s compensation policy issued by appellant, Liberty Mutual Insurance Company, to Houston Laboratories, a Texas corporation, whereby coverage was extended to all executive officers. Allan Hill Preston, president, general manager, and owner of 85% of the stock of this corporation, was killed in a one-car automobile accident on February 8, 1963, about two miles south of Leakey, Real County, Texas. The only issue in dispute was whether or not he was acting in the scope of his employment at the time of the accident, and the jury found that he was.

Appellant asserts errors in the admission of hearsay testimony; that there is no evidence to support the jury finding, and, in any event, the judgment should bear interest at the rate of 4% rather than 6% as provided in the judgment. Appellee by cross-assignment urges that the judgment should include the funeral expenses paid b> her, and that the appellant did not have sufficient cause for taking the appeal and therefore should pay damages.

. Houston Laboratories, hereinafter referred to as Company, was located in Houston, Texas, where it operated analytical laboratories, doing analyses and tests of agricultural, mineral and petroleum products. Preston customarily made a trip to West Texas each winter for the purpose of calling on old customers and soliciting new business. Mrs. Preston, who also worked in the business, was permitted to testify over appellant’s objection that decedent told her before he left that he was going on a business trip to New Braunfels and West Texas. Similar testimony was given, over appellant’s objection, by Mr. Wooden, Vice-President of the Company, and Miss Celeste Borman, secretary to Mr. Preston. Mrs. Preston was also permitted to testify that decedent had telephoned her on February 6, 1963, and told her that he was going to Abilene and call on a customer.

The trial court properly admitted these statements by deceased as declarations tending to show his state of mind and purpose in making this trip. The applicable rule is set forth in McCormick & Ray, Texas Law of Evidence, § 868, as follows: “When it is important to know whether an employee was acting within the scope or course of his employment at the time of an injury or accident, his earlier statements of purpose and intention are a valued clue, and sometimes the only one. They are admitted as res gestae, but at least one court has more properly admitted such a declaration simply as the expression of an existing state of mind.” In a Per Curiam opinion in Great American Indem. Co. v. Elledge, 159 Tex. 288, 320 S.W.2d 328 (1959), the Supreme Court, in considering admissibility of a statement that decedent said he had to go to the plant and work, said:

“We agree with the Court of Civil Appeals that the statement made by the deceased employee to his wife and overheard by Barbara Jean Noack on the night of September 3, 1956, is admissible as a declaration tending to show the state of mind and immediate purpose of the decedent on that night.”

See also Mid-Continent Cas. Co. v. Conrad, Tex.Civ.App., 368 S.W.2d 686, wr. ref. n. r. e.

These statements were admissible and justify a finding that Preston’s purpose in leaving Houston on February 2d was to make a business trip to West Texas on behalf of the Company. He had no set itinerary for this trip and had made no specific appointments. The undisputed evidence shows, however, that Preston combined personal purposes with this trip and it is necessary to establish that he was acting in the scope of his employment at the time of the accident, which occurred about 8:00 a. m. on February 8.

Appellant also complains of the admission into evidence, over its objection, of testimony from a Leakey garage operator that he received a telephone call about 7:00 a. m. on the 8th, from a man who identified himself as Mr. Preston. This man said he was calling from Garner Park and was having trouble with the alignment or something on the front of his 1956 Oldsmobile, and inquired as to whether it could be fixed. The garage operator advised that he could correct it to where the car could be operated safely, and the caller said he was coming in.

The general rule is that it is necessary to the admission of testimony as to the contents of a telephone conversation, to establish identity of the person with whom the witness talked. This is done if the witness says he identified the voice of the person with whom he talked. It is also regarded as established if the message reveals that the speaker had knowledge of facts that only the speaker would be likely to know, or if corroborated by facts and circumstances tending to reveal the identity of the speaker. See Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228 (1956); Colbert v. Dallas Joint Stock Land Bank, Tex. Com.App., 136 Tex. 268, 150 S.W.2d 771 (1941); Webb v. British American Oil Producing Co., Tex.Civ.App., 281 S.W.2d 726, wr. ref. n. r. e.

In our opinion the identity was sufficiently established where in addition to giving the name of Preston, the speaker said he was calling from Garner Park and was operating a 1956 Oldsmobile. The witness said he recalled the incident because he thought the park was closed that time of year. Obviously, there would be only a few people in the Park at that time, and the name, plus the type of automobile, and the fact that Preston was in that area established the identity.

Appellant urges that, despite the evidence showing the overall purpose of the trip to West Texas there is no evidence to support the jury’s finding that Preston was acting in the scope of his employment at the time of the accident. In considering this “no evidence” point it is our duty to view the evidence and the reasonable inferences therefrom in the light most favorable in support of the finding of the jury. Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex.1963). Actually, there is very little conflict in the evidence on this question, and of necessity same is largely circumstantial. The problem of scope of employment is made more difficult by reason of the fact that the deceased was the person in charge of the management and direction of the Company.

Mr. Preston left his home in Houston on Saturday, February 2, 1963, and went to New Braunfels to make a business call. He was alone in a 1956 Oldsmobile owned by the Company and furnished to him for his regular use. All operating and upkeep expenses on this car were paid by the Company. He telephoned Mrs. Preston from New Braunfels on Sunday, February 3. Mrs. Preston testified that after he left New Braunfels he was going to Abilene and West Texas, probably “Lubbock and Pecos and out in there.” He spent Sunday night, February 3, in Garner State Park. There was testimony that Preston enjoyed the outdoor life and took a tent and other camping equipment with him on trips and usually stayed outdoors or in a motel rather than in a hotel. Garner State Park is about 110 miles west of New Braunfels, whereas Abilene is about 240 miles northwest and on a different route. There is no evidence that anyone connected with the Company, including Mrs. Preston, knew that Preston was going to Garner Park, or even that he had been there, until after this accident occurred.

The 1962 Company Christmas Card list was introduced in evidence to show the list of all Company customers, and the nearest one is at Eagle Pass, which is located about 100 miles southwest of the Park. There is no evidence that the Eagle Pass customer was visited on this trip.

On Monday morning, February 4, Preston paid the Park $1.00 for the previous night’s camping fee, and also stopped in a grocery store at Happy Hollow, which is between the Park and Leakey. He informed the grocer that he was on a vacation in the Park and inquired if there was a druggist in Leakey. (Leakey is about 12 miles north of the Park and Uvalde is about 30 miles south.) It was stipulated that at 12:25 p. m. on February 4, Preston was arrested in Uvalde County and charged with driving while intoxicated. He remained in the Uvalde County jail until the 5th when he pleaded guilty and was fined $350.00. Although he was sentenced to three days in jail he was released from custody. He returned to Garner Park and paid the attendant $3.00 for camping facilities for the nights of February 4, 5 and 6.

At noon on the 6th, Preston called the Company collect and talked to Mrs. Preston. The telephone bill identifies this call as being from the Leakey Exchange, which includes Garner Park. Mrs. Preston testified that he said that he was going to Abilene and call on Bill Coleman. Mr. Coleman was identified as being with Paymaster Mills, a customer of the Company.

Sometime during Thursday, the 7th, Preston paid the attendant at Garner Park $2.00 for camping facilities for the nights of February 7 and 8. There is no other testimony of his activities until Friday morning the 8th. Shortly before the fatal accident, Preston stopped at the grocery store at Happy Hollow for the third time. He purchased twelve gallons of gas to fill his twenty-gallon tank, paid for same in cash and drove on towards Leakey. About fifteen minutes later the grocer was advised of the fatal accident.

At the time of the fatal accident, Preston was dressed in khaki clothes, however, his dress clothes were hanging in the car. It is very significant that Preston left his tent and some other personal possessions at the Park. A map introduced in evidence shows that Abilene is about 210 miles north of Leakey.

Sec. lb, Art. 8309, Vernon’s Ann. Civ.Stats., enacted in 1957, provides the test for determining coverage under the workmen’s compensation act for injuries occurring during the course of travel. This section has two parts, and both tests must be met by claimant. Agricultural Ins. Co. v. Dryden, Tex., 398 S.W.2d 745; Shelton v. Standard Insurance Co., 389 S.W.2d 290 (Tex. 1965); Jecker v. Western Alliance Ins. Co., supra; Janak v. Texas Employers' Ins. Ass’n, 381 S.W.2d 176 (Tex.1964).

The first part declares injuries during travel to be in the course of employment and therefore compensable only when one of the four prerequisites enumerated in the first sentence of Sec. lb is present. Appellee’s proof that the transportation on this trip was furnished and paid for by the Company met the test of the first part.

The second part deals with the “dual purpose” rule. As stated in Janak: “It declares that injuries occurring during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee’s personal or private affairs shall not be deemed in the course of employment, and therefore com-pensable, ‘unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip’.”

It is further settled that the requirements of Art. 8309, § 1, are not satisfied by proof that injury occurred while the workman was engaged in or about the furtherance of his employer’s affairs or business. The claimant must also establish that the injury was of a kind and character that had to do with and originated in the employer’s work, business, trade or profession. Shelton v. Standard Ins. Co., supra; Texas General Ind. Co. v. Bottom, 365 S.W.2d 350 (Tex.1963).

Appellee urges that the presumption of scope of employment arising from the fact that Preston was driving a Company owned vehicle at the time of the accident is sufficient to raise a fact issue. This is a rebuttable presumption which compels the disclosure of facts peculiarly within the knowledge of the one against whom the presumption operates and one that disappears when met by rebutting proof. Lumbermen's Lloyds v. Jones, 153 Tex. 379, 268 S.W.2d 909 (1954); Empire Gas & Fuel Co. v. Muegge, Tex.Com.App., 135 Tex. 520, 143 S.W.2d 763 (1940); Whittle v. Saunders, Tex.Civ.App., 396 S.W.2d 155, no wr. hist.; Henderson Drilling Corp. v. Perez, Tex.Civ.App., 304 S.W.2d 172, no wr. hist.; Hudiburgh v. Palvic, Tex.Civ. App., 274 S.W.2d 94, wr. ref. n. r. e.

It is our opinion that this presumption was rebutted in this case when it was shown that Preston had combined a personal mission with the business trip by camping at Garner Park from February 3 to 8. Any other information is known only to appellee in that she talked to Preston by telephone on February 3 and 6. She did not testify that she even knew he was in Garner Park. Her evidence that he stated at noon on February 6 that he was going to Abilene amounts to no more than a scintilla that he was enroute there on February 8, in view of the lapse of time and the fact that his tent and other personal possessions were still in the Park where he was registered for another night.

The question remains as to whether the injury is compensable if we assume Preston was taking the company car to Leakey to be repaired at the time of the accident. There was testimony it was his responsibility to keep the car in good repair, although the Company paid the expense of the repairs. The facts are somewhat analogous to those of Texas General Indemnity Co. v. Bottom, supra, although there Bottom had leased his truck to his employer. Under the rule in that case, Preston was not acting in the scope of his employment in taking the car to Leakey to be serviced. He was on this road at this time and place because of his personal mission in going to Garner Park, which mission had not been abandoned. Nothing in his employment contract required him to be in Garner Park or Leakey. His use of the vehicle for this deviation was not an incident of his employment for the Company, and we cannot say that he had returned to the scope of his employment by driving to Leakey for the purpose of having the car repaired.

There is no evidence to support the finding of the jury that Preston was acting in the scope of his employment for Houston Laboratories at the time of the accident. This requires us to reverse the judgment and to render it for appellant. It necessarily follows that appellee’s cross-assignments are without merit.

The judgment is reversed and here rendered that appellee take nothing by this suit.


author: CLAYTON, Justice.

text:
    WARD COUNTY WATER IMPROVEMENT DISTRICT NO. 2, Appellant, v. BILDON FARMS, INC., Appellee.
    No. 5751.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1966.
    Rehearing Denied Feb. 23, 1966.
    L. Holt Magee, Monahans, Johnson & Dionne, Ft. Stockton, for appellant.
    A. R. Archer, Jr., Monahans, Garland Casebier, Midland, for appellee.
   CLAYTON, Justice.

Appellee herein acknowledges that the statement of the nature and result of this case as made by appellant herein is correct. That statement is as follows:

“Appellee BILDON FARMS, INC., brought this suit as plaintiff against Appellant WARD COUNTY WATER IMPROVEMENT DISTRICT NO. TWO as defendant in the District Court of Ward County. The case was tried upon Appellee Bildon Farms’ Fourth Amended Original Petition and Appellant Ward County Water Improvement District No. Two’s Third Amended Original Answer. The issues as made by the pleadings were as follows :
“Appellee Bildon Farms alleged that in the year 1961 it was engaged in growing a milo maize crop on a 600 acre farm it had under lease in Ward County, Texas, within the boundaries of Appellant Ward District Two, which was a water improvement district created and existing under the laws of Texas, and that it contracted with the Appellant District to furnish it irrigation water for use on its crop in the spring and summer of 1961, which water was to be supplied by Red Bluff Water Power Control District to Appellant, which in turn would deliver it to Appellee. It further alleged that during a certain ten day period Appellant delivered to it water that was not ‘Red Bluff’ water, that such water was accretionary water that did not come from the Red Bluff Reservoir, that it was of ‘markedly inferior quality’ to ‘Red Bluff’ water, that it was of such high saline content that it destroyed a part of Appellee’s grain crop, and that Appellant was liable to it for the value of the crop so destroyed because Appellant District had negligently furnished it with such accretionary water.
“Appellant District defended on the ground that the water it delivered to Appellee Bildon Farms came from the Pecos River and that by statute and contract all water in the river, whether it came by release from Red Bluff reservoir or entered the river below the reservoir by accretion from storm, flood or drainage, or any other source, was ‘Red Bluff’ water and hence it was not liable. It further pleaded that it had no way of determining the saline content of the water prior to delivery and hence was not negligent, that the water was water released from Red Bluff Reservoir, and that in any event any loss of crops suffered by Appellee Bildon Farms was caused solely or partly by its negligence in the use of improper farming practices, which made it contributorily negligent and prevented any recovery from Appellant.
“The Trial Court overruled Appellant’s motion for an instructed verdict and submitted the case to the jury on special issues based solely on negligence, contributory negligence and comparative negligence, which the jury answered by finding both parties negligent and apportioning the damages 70% against Appellant and 30% against Appellee. The Court then entered judgment against Appellant for $16,-344.81, and Appellant duly and timely filed its motion for judgment non obstante veredicto and for a new trial, and when it was overruled, perfected its appeal to this Court on December 21, 1964.”

The answers to special issues submitted in this case consisted of the following: No. 1 required the jury to determine whether, between July 28th and August 9th, 1961, the period of time complained of, the appellant delivered into appellee’s ditches water of a higher saline quality than Red Bluff Reservoir water from sources other than the reservoir, to which the jury answered “yes”; No. 2, conditioned upon an affirmative answer to No. 1, found that the delivery of such water was a proximate cause of the damages to appellee’s grain crop; and in No. 3 the jury found that such delivery was negligence. In Special Issue No. 4 the jury found that the appellee failed to farm its land in keeping with good husbandry at the time and place involved; and in Special Issue No. S, found that such failure was a proximate cause of the damages to appellee’s crop. In Special Issue No. 6 the jury found that the total amount of damages to the crop was $23,-349.88. Special Issue No. 7, predicated upon an affirmative answer to Special Issues 2 and 5, was submitted and answered as follows:

"SPECIAL ISSUE NO. 7
“What, from a preponderance of the evidence, do you find the damages, if any, to said crop was proximately caused by:
“A. Water of inferior quality to Red Bluff Reservoir from other sources, if any;
“B. Poor husbandry, if any;
“Answer in percentages of 100, if any, as to each, if any.
“ANSWER:
Ai 70 %
B: 30 %

The court, in accordance with the jury’s findings in Special Issue No. 7, rendered judgment for appellee in the amount of $16,344.51, or 70% of the total damages to the grain crop, as found by the jury, in the amount of $23,349.88. Appellant, as defendant below, objected to the submission of Special Issue No. 7 as being an issue predicated upon the theory of comparative negligence and therefore contrary to establish law in Texas. Appellant’s motion for judgment n. o. v. or for a new trial repeated its objection to the court’s charge and took the position that the jury’s answers to Special Issues 4 and 5 established contributory negligence on the part of appellee as a matter of law, which precluded any recovery by appellee under Texas law. This objection and the position of appellant were repeated in its Points of Error Two and Three which are before us here. We feel that the jury’s findings, supported by the evidence as they are in this case, that appellee failed to farm its land in keeping with good husbandry during the time in question, in answer to Special Issue No. 4, and in answer to Special Issue No. 5, that this was a proximate cause of the damages to appellee’s grain crop, established contributory negligence as a matter of law and precluded recovery, regardless of the extent to which this negligence contributed to the damage. Barnes v. Elza, 342 S.W.2d 175, 176 (Tex.Civ.App., 1960; n. w. h.):

“The rule of law is well established that the existence of negligence or contributory negligence is a question of fact to be determined by the jury whose finding is conclusive if supported by the evidence. Cruse v. Chacon, Tex. Civ.App., 67 S.W.2d 399; Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731. It is equally well established that when a plaintiff is guilty of contributory negligence and such negligence is a proximate cause of his damages, such negligence entitles a defendant to a judgment. Townsend v. Young, Tex.Civ. App., 114 S.W.2d 296; Skyline Cab Co. v. Bradley, Tex.Civ.App., 325 S.W.2d 176; Lane v. Dallas Transit Co., Tex.Civ.App., 331 S.W.2d 821.”

See also Valdez v. Yellow Cab Co., 260 S.W.2d 715, 717 (Tex.Civ.App., 1953; n. w. h.), and Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (Tex. Com. App., adopted opinion; 1939).

We should bear in mind that Special Issue No. 4, which inquired whether the jury found that appellee failed to farm the premises in question in keeping with good husbandry at the time and place involved confined the question purely and simply to an inquiry concerning the lack of good husbandry in the application of the water to the land during such period of time, and did not involve other extraneous matters such as the possible failure of ap-pellee to keep its ditches or land in sufficient repair and maintenance to adequately transport water; whether appellee failed to break the land to sufficient depth to allow adequate watering, and other matters that could have transpired throughout the year. In other words, the inquiry of the jury submitted in Special Issue No. 4 is confined to the possibility of there existing poor husbandry at the same time and coincidental with the possibility of appellant’s negligence in allowing highly saline water to enter appellee’s ditches. It may be that under other circumstances and conditions Special Issue No. 7 might have been permissible under Texas law, but under the circumstances reflected in this case we can arrive at no other conclusion than that the appellee was guilty of contributory negligence, and that the jury so found. This being so, Special Issue No. 7 can be viewed in no other light than as an issue which submitted the doctrine of comparative negligence, and that its submission in this case was in error. It is clear that we do not have the doctrine of comparative negligence in Texas, except as provided by statute, which does not encompass the present action. See 40 Tex.Jur.2d 602, 603, § 97, “Contributory Negligence as absolute defense” :

“Contributory negligence is an absolute defense. The doctrine of comparative negligence, which apportions liability between the parties according to the relative degree of their negligence, does not exist in Texas, except by virtue of statute in actions between certain employers and their employees. In all other cases of injuries resulting from negligence, contributory negligence is an absolute defense, no matter how negligent the defendant may have been.”

See also Alexander v. Appell Drilling Co., 290 S.W.2d 377, 380 (Tex.Civ.App., 1956, ref., n. r. e.). For an analytical discussion of comparative negligence in Texas and in other jurisdictions, see “Comparative Negligence As Applied To Contribution: The New Doctrine of ‘Comparative Contribution’ ”, Vol. 17, No. 1, Southwestern Law Journal 155 (1963).

Under the view that we take of this case, and finding Special Issue No. 7 was submitted in error, the judgment of the trial court must be reversed; and since the jury found that appellee was guilty of contributory negligence and the case has been thoroughly and fully tried, we find no justification in remanding the case, but are constrained to render judgment in favor of the appellant. Under this ruling we have considered, but do not pass on, other points of error brought to our attention.

Reversed and rendered.


author: BELL, Chief Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Beatrice Lee BULLARD, Appellee.
    No. 14522.
    Court of Civil Appeals of Texas. Houston.
    Feb. 3, 1966.
    Rehearing Denied March 3, 1966.

      J. W. Dewbre, Thomas G. Nash, Jr., Johnson, Guthrie, White & Stanfield, Curtis White, Dallas, for appellant.
    W. T. Bennett and Mac L. Bennett, Jr., Huntsville, J. Edwin Smith, Houston (On Motion for Rehearing) for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment in the amount of $14,700.00, rendered against appellant by the court after a trial without a jury. The judgment represents recovery on a life insurance policy providing for double indemnity if the insured’s death resulted solely from accidental bodily injury. Appellant paid the principal sum but denied liability for the additional $10,000.00 because of its belief that death resulted from or was contributed to by existing bodily infirmity.

The insured was Bobbie Lee Bullard, the husband of appellee. He was an employee of the State of Texas as Warden of the Darrington prison farm. The policy sued on is the group policy carried by State employees.

The policy provided that if the employee, as a result of accidental bodily injury, should suffer, directly and independently of all other causes, a loss of life, the appellant would pay additionally an amount equal to the principal sum. The policy also contained an exclusion which provided that the insurance with respect to accidental death would not cover a loss caused or contributed to by bodily or mental infirmity.

There is no dispute concerning the evi-dentiary facts.

On June 6, 1963, two prisoners had escaped from the Ramsey prison farm. Mr. Bullard was assisting in the efforts to recapture them. He was riding a horse. He apparently joined in the hunt about 4 o’clock in the afternoon. The persons who saw him that day all testified he showed no signs of being ill, but to the contrary appeared happy and jolly. Bullard was riding for several hours. He was seen alive about dusk. He, when last seen alive, was heading toward a creek, his horse being in a fast lope. There were two other guards on horseback some distance ahead of him. They were all riding at a more or less loping run. The two other riders expected Bullard to overtake them. He did not do so, but his horse did. When the riderless horse appeared, one of the other men went back to look for Bullard. Mr. Osborn was the man who went to look for Bullard. Some distance back he found Mr. Bullard lying flat on his back on the ground. He was still gasping for breath. He appeared to be knocked out and gasping as would a person who has had the breath knocked out. He appeared to be unconscious. Mr. Osborn stayed with Bullard until he stopped gasping. The surrounding terrain was sloping, irregular and there were some cracks and holes in the ground. Mr. Bullard was lying to the right of the path, looking in the direction he had been riding, and approximately parallel to it. His hat was about 20 or 30 feet back in the direction from which he had come. The left rein of the bridle was over the horse’s neck and the right rein was hanging to the ground. The horse was a large clumsy one. One witness testified he had on previous occasions seen this horse stumble to the extent of going to his knees, but had never seen him “go plumb down.” There were no marks on the horse to indicate that it had fallen to the ground. There were a few abrasions on Mr. Bullard’s face. They were described as superficial. Mr. Bullard was wearing riding gloves. At the funeral home it was discovered by the mortician that Mr. Bullard had a chew of tobacco in his mouth. The mortician also described an abrasion on the right side of the face from the hairline to the jaw. The width was given as about two inches, but the depth is not given. It looked like a wound you would get from skidding on the ground. There were no abrasions or bruises on the back of the head. There were “markings, bruises and abrasions on the right shoulder and down the arm to the elbow.” The witness noticed no facial discoloration, apart from the bruises and abrasions above described. The front of Mr. Bullard’s shirt was torn and two or three buttons were missing.

It appears without dispute that beginning in June, 1955, Mr. Bullard had a coronary problem. This was fully described by Mr. Bullard’s physician, Dr. Fatheree. It should here be noted that no doctor saw Mr. Bullard on the day of the occurrence in question. No autopsy was performed. When first seen in June, 1955, Mr. Bullard had hardening of the coronary arteries. At that time the doctor prescribed nitroglycerin and nicotinic acid. Shortly thereafter Mr. Bullard was hospitalized and at this time anti-coagulants were also prescribed. He was hospitalized because he had a particularly bad attack of chest pain. An electrocardiogram was made. A series of them was made during this period of hospitalization. They reflected some damage to the heart muscle. It was the doctor’s opinion that Bullard had not had an outright coronary thrombosis, but rather a coronary insufficiency. This deprives the heart muscle of blood over a period of time and this causes changes to be shown in the electrocardiogram. The tests, after a week’s hospitalization, indicated Mr. Bul-lard was getting along satisfactorily and could safely go home. He was advised to rest at home a while and then gradually resume his work. He saw Mr. Bullard in July, August and September, 1955, and he seemed to be doing pretty well except he was having pains in his chest when he would lie down. In February, 1956, he continued to have slight angina at night when he lay down. This was caused by insufficiency of the heart muscle. While angina is usually brought on by activity, Mr. Bullard’s came mostly at night when he lay down. This is not a rare situation but it is most usual for pain to come after activity. In September, 1961, an electrocardiogram showed slight abnormalities that hadn’t shown up on previous visits. Mr. Bullard did not see the doctor in 1962. He next saw him in February, 1963. At that time Mr. Bullard’s condition had gotten worse. He was having more angina, particularly at night. He was taking more nitroglycerin and at this time the doctor increased the dosage from Jisoth grain to Jiooth grain, and he was also put on a new drug with the hope of ameliorating the pain. This was the last time the doctor saw Mr. Bullard. The abnormality shown by the electrocardiograms was characterized by the doctor as being minimal. He had always advised Mr. Bullard to limit his activities somewhat and carry on all of his activities with moderation. The doctor was of the view Mr. Bullard never suffered myocardial infarction. It was his opinion the angina was the result of coronary insufficiency. The nitroglycerin dilates the arteries and the flow of blood to the heart is increased. Most frequently people who develop coronary thrombosis have a preliminary heart pain. This is the reason for the use of nitroglycerin. When the pain occurs it may be taken so as to dilate the arteries and increase the flow of the blood. People will in most cases have a warning from this pain and can take the nitroglycerin. While a person may suffer a coronary thrombosis without warning, in most instances, there will be some preliminary warning. The doctor was of the opinion that it was possible that any severe injury might lead to coronary thrombosis. When asked what was the meaning of “ventricular fibrillation”, the doctor explained it means a condition in which the heart muscle, instead of contracting periodically as it does in beating, merely squirms like a bucket of worms, so there is no effective beat in the heart. He stated one of the common means or mechanisms of death following a coronary thrombosis is ventricular fibrillation. Mr. Bullard had a sclerotic condition. Ventricular fibrillation may come either with or without coronary thrombosis. However, for the most part persons who have ventricular fibrillation usually have coronary sclerosis. The doctor stated he had no firm opinion as to what caused Mr. Bullard’s death. Rupture of a blood vessel can occur from trauma. He stated it was possible for death to result from a broken neck, a ruptured blood vessel, injury to the respiratory system, or brain injury, and that such injuries could be caused by a fall from a horse.

When Mr. Bullard last came to the doctor in February, 1963 with increased chest pain, the nitroglycerin dosage was increased to the strongest tablet normally sold. He stated that from the condition in which he found Mr. Bullard he would say Mr. Bul-lard was subject to having a heart attack at any time. He meant by this a thrombosis that would take his life. This could occur while he was exerting himself, while he was lying in bed, while he was asleep, or sitting and relaxed. In the latter years, when Mr. Bullard came to see him he did so because of increased chest pain. Without any accident the heart condition could be the cause of death. He considered Mr. Bullard had a really serious condition.

Mr. Bullard, and several persons who worked with Mr. Bullard, stated he was able to do his work without any noticeable limitation. Some of the witnesses did not know Mr. Bullard had a heart condition. Of course, Mrs. Bullard knew and knew of his medication, and testified of his obedience to doctor’s orders. It appears that except for the time of his hospitalization in 1955, Mr. Bullard had missed no period from work because of illness. His work encompassed executive or supervisory duties and also relatively vigorous exertion at times.

The principles of law applicable in a case of this kind are well settled. Difficulty is not in knowing what the law is, but in applying it to varying fact situations.

The burden is on the beneficiary to establish by a preponderance of the evidence that death resulted from bodily injuries caused by accident, directly and independently of all other causes. This, of course, encompasses a showing that death was not contributed to by existing bodily infirmity. Mutual Benefit Health & Accident Ass’n v. Hudman, 9 Supreme Court Journal 169 (S.Ct.); Robinson v. Aetna Life Ins. Co., 276 S.W. 900 (Tex.Com. App.); Tix v. Employers Casualty Co., 368 S.W.2d 105 (Tex.Civ.App.), no writ hist., and authorities there cited; Golden State Mutual Life Ins. Co. v. Summers, 301 S.W.2d 491 (Tex.Civ.App.), no writ hist.; and Standard Life & Accident Ins. Co. v. Roberts, 318 S.W.2d 757 (Tex.Civ.App.).

Appellee relies on circumstantial evidence to show that the deceased suffered accidental bodily injuries and that they were the proximate cause of his death. Of course, resort may be had to circumstantial evidence to establish ultimate facts. Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App.); Collier v. Hill & Hill Exterminators, 322 S.W.2d 329 (Tex. Civ.App.), no writ hist. If from all the circumstances in evidence it may reasonably be concluded that death resulted from accidental injuries and was not contributed to by bodily infirmities, the claimant has discharged her burden. The claimant need not exclude every other reasonable hypothesis but if, in the light of all of the evidence, it can be said that accidental injuries, independently of all other causes and not contributed to by bodily infirmity, probably caused deceased’s death, then there is evidence of probative force. It is a matter of probabilities in the light of all the evidence.

However, a court or jury may not be left to speculate. The evidence must give rise to more than a surmise or suspicion that death resulted solely from accidental injuries. If there is no direct evidence as to the existence of an ultimate fact and the proven circumstances are consistent with either of two theories and there is nothing to show that one rather than the other probably is correct, then neither is proven. Worley v. International Travelers Assur. Co., 110 S.W.2d 1202 (Tex.Civ. App.), writ dism.; International Travellers Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040; Continental Cas. Co. v. Fountain, 257 S.W.2d 338 (Tex.Civ.App.), writ ref.

We have reached the conclusion that there is no evidence of probative force from which it may be reasonably inferred that Mr. Bullard’s death resulted from accidental bodily injuries independently of all other causes and was not contributed to by bodily infirmity.

There certainly is no direct evidence of the cause of death. No autopsy was performed. No doctor saw deceased immediately before or after the occurrence immediately following which he died. The only doctor testifying stated, on a basis of his familiarity with Mr. Bullard’s heart condition which he was treating, and a recital of the circumstances surrounding Mr. Bullard’s death, that he could not give an opinion of the cause of death.

The evidence merely shows that Mr. Bullard, who was last seen riding a horse at a fast lope, was found lying on his back beside a traveled path, gasping for breath. He had bruises and abrasions such as might be received by one sliding along the ground after falling or being thrown from a horse that had been moving in a fast lope. These wounds were described as superficial. How deep they were is not shown. There appeared to be no broken bones in any body member. How Mr. Bullard came to fall from the horse is not shown. Whether he fell when the horse stumbled or whether he suffered a heart attack and fell cannot be known from the evidence. Certainly, the wounds appearing on the body were not of such a serious nature as are likely to produce death.

Appellee, in analyzing the circumstances, stresses the evidence that though Mr. Bul-lard had a heart condition for which he was taking nitroglycerin he had not been to see a doctor since February, 1963, and had been able to do his work; that the history of his condition showed more angina pains while he was resting than when exercising; usually one suffering a coronary thrombosis has a warning of its approach by angina pains and can take the nitroglycerin; that Mr. Bullard, when found, was lying to the right of the path in the direction in which he was last seen riding; that people mount or dismount on the left side of a horse; that the left rein of the bridle was over the horse’s neck; that Mr. Bullard was still wearing riding gloves; and that after his death he had a chew of tobacco in his mouth. From these circumstances, plus the statement of Mrs. Bullard that the deceased followed his doctor’s orders as to taking his medicine, appellee reasons that he did not have a heart attack. Ap-pellee seems to reason that if he was having a heart attack he would have received warning from angina pains; would at least have removed his gloves and taken the nitroglycerin, and may even have dismounted on the left side and then taken his medicine. Too, appellee points out that the particular horse was a clumsy horse and was known to frequently stumble and the terrain over which he was being ridden was rough.

The trouble with this analysis is that it assumes there would be angina pains of sufficient duration to afford time for Mr. Bullard to remove a glove, spit out the chew of tobacco, and take the medication while continuing to ride or else to dismount, remove a glove and take the medicine. It also assumes he had the nitroglycerin with him when no evidence shows such to be true. The evidence merely shows nitroglycerin was prescribed and Mrs. Bullard testified he was following his doctor’s orders in taking his medicine. Nowhere does it appear he was told to always have the medicine with him, and the evidence shows he needed it mostly at night.

Too, what appellee overlooks is that the evidence shows the deceased’s heart condition had gotten worse. His physician testified his condition was such that he could pass away at any time, either while he was exercising or just sitting or resting and without warning. Too, it shows that while usually there are warning pains, such is not always the case.

The evidence in this record is equally consistent with the conclusion that Mr. Bullard had a heart attack and fell from the horse. Too, the injuries undoubtedly received in the fall, whatever may have been the cause, were such as not to be reasonably calculated to cause death, so certainly there is no evidence of probative force to show that the bodily injuries independently of all other causes resulted in deceased’s death and were not contributed to by his admittedly existing bodily infirmity.

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.


author: WALTER, Justice.

text:
    RIVERBEND COUNTRY CLUB, Appellant, v. Chambers A. PATTERSON, Appellee.
    No. 4010.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 26, 1965.
    Rehearing Denied Jan. 28, 1966.
    F. Warren Hicks, Houston, for appellant.

      H. Cecil Baker, Rosenberg, Helm, Jones & Pletcher, Shirley Helm, Houston, for appellee.
   WALTER, Justice.

Chambers A. Patterson recovered a judgment for $17,500.00 against Riverbend Country Club as damages for injuries he sustained when he was struck by a golf cart driven by an alleged employee of the Riverbend Country Club.

The Club has appealed. It contends there was no evidence to support the jury’s answers that Hector Andrade was its employee acting in the course of his employment at the time he backed the cart into Mr. Patterson.

The court gave the following approved definitions:

“An employee is defined as ‘every person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.’ ”
“By the term ‘scope and course of employment’ is meant an act done in furtherance of the master’s business and for the accomplishment of the object for which the servant was employed.”

Hector was a caddy at the Club. The Club did not pay social security tax on the caddies nor withhold taxes from their income. The caddies were not required to report for work at any particular time. They could leave anytime they wanted to and were permitted to return so long as they abided by the rules and regulations. The Club did not pay the caddies for their services to the players, but they were paid directly by the players. According to the rules of the Club, the caddies were not supposed to move the carts.

The caddy master is an employee of the Club. He conducted a caddy school for the boys in order that they might better perform their duties. The caddies were permitted to play golf on the course one day a week when it was closed to the members. This is one of the inducements the Club offers to secure good caddies. When a boy signs the register to caddy, he is under the supervision of the caddy master. The caddy master was asked the following questions and he gave the following answers :

“Q. All right, and the caddy master tells them when to go out, he assigns them, does he not?
A. Yes, sir.
Q. Right, and he tells them those that are entitled to a second bag during the day, and the various things, he controls that work, is that correct?
A. Yes, sir.
Q. And is in charge of the details of their work?
A. Yes, sir.”

The rules of the Club require a member to arrange for a caddy through the caddy master except during an official tournament. The caddy fee is fixed by the greens committee. One witness testified that from reading the Club’s by-laws and rules, he found nothing which prohibited the caddies from handling the carts. The caddies perform certain services for the Club, such as cleaning up and picking up paper.

The carts belong to the Club and it was the cart attendant’s duty to take care of them. When a player completes his play he returns the cart to the Club by either returning it to the ramp or to the cart barn.

Patterson had returned the cart to the edge of the sidewalk near a canopy. It was raining and the players were trying to get out of the rain. The carts are assigned to the players through the pro shop and most of the time are on the ramp in front of the golf shop.

After Patterson had completed his game and was removing his clubs from the cart, a cart owned by the Club and operated by Pee Wee hit him and down he went.

After testifying that Pee Wee was a valued caddy, the golf pro, Smith, testified:

“Q. And still is, and to be valued, a caddy doesn’t just sit back when one of the carts is not in the right place, when it should be moved, and all that he goes over there in the best interest of the Club, and the membership and moves the cart on back to the shed?
A. They will do that, they are not authorized, but they will do it.”
“Q. Now, with that situation, where he was evidently helping taking these carts back to the shed, or the barn, he was not ordered off of the club grounds after this occurrence ?
A. No, sir.
Q. And he continued I think you testified yesterday that he has continued as one of your valued caddies out there up until the present time?
A. Yes, sir.”
“Q. Getting back to August 20, 1960, these caddies out there, got ahold of those buggies and took them back whenever there wasn’t — and I am saying this they was doing what was the custom out there Jack, and those caddies took those carts back to the barn, there were times when they did?
A. Yes, sir.”
“Q. All right, sir, as a matter of fact the custom and I am not trying to put you on the spot up here on this thing, but to throw the light on these things, as a matter of fact, the caddies were encouraged to jump in there and help get those carts back and forth, to facilitate the use of the play and use of the carts and running of the club, and many of them did do that and help the cart men bring the carts back and forth constantly, and that was the custom in your club prior-^I don’t know what has happened since this accident, but prior to Chambers Patterson being injured out there, isn’t that true, Jack?
A. They did, yes, sir.”

The evidence set out above and other facts and circumstances in evidence constitute some evidence of probative force that Pee Wee was an employee of the Club. Claremont Country Club v. Industrial Accident Commission, 174 Cal. 395, 163 P. 209, L.R.A.1918F, 177; Indian Hill Club v. Industrial Commission, 309 Ill. 271, 140 N.E. 871; Essex Country Club v. Chapman, 113 N.J.L. 182, 173 A. 591.

Pee Wee had been working as a caddy at the club for some time and was working at the time of trial. It was conclusively established that at the time of the accident the cart Pee Wee was operating belonged to the club. Under these circumstances a presumption arises that Pee Wee was acting within the course of his employment and in the furtherance of the club’s business. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057. The club takes the position in their no evidence points on course of employment that the evidence is so clear, positive, and conclusive that the presumption should be deemed rebutted as a matter of law, however, we have concluded that the testimony did not overcome the presumption as a matter of law and course of employment was a fact issue for the jury. Gammill v. Mullins, Tex.Civ.App., 188 S.W.2d 986 (Writ Ref. N.R.E.).

We have considered all of the evidence and have concluded that the jury’s answers that Hector Andrade (Pee Wee) was an employee of the club acting in the course of his employment are not against the great weight and preponderance of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant objected to the damage issue because there was no evidence or in the alternative insufficient evidence to support the submission of the issue. Appellant has 19 points of error relating to the damage issue but none of them asserts that the amount is excessive. We consider the testimony of Patterson and his wife to be some evidence of probative force which supports the jury’s answer to the damage issue. We have considered all of the evidence and have concluded that the jury’s answer to the damage issue is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s points 26 to and including 31 complain about the admission of evidence. The appellant cites no authority in support of these points and we have found none. They are overruled.

The last point alleges error on the part of the trial court in commenting on the evidence. While overruling an objection the court said: “The question as to whether or not he is an employee is for the jury.” An examination of the statement of facts reveals that no objection was made to this remark and no request was made for the court to instruct the jury not to consider his remark. However, we do not consider such remark as a comment upon the weight of the evidence because the court did not assume any controverted issue or indicate to the jury his opinion on any material question or unduly emphasize the matter. This point is not well taken.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

Appellant contends in its motion for rehearing that its points twenty-three, twenty-four and twenty-five present points on excessiveness of the verdict. We construed such points as presenting no evidence, insufficient evidence and against the great weight and preponderance of the evidence points.

We have considered such points in the light of appellant’s contentions and have concluded that the amount of the award is not excessive. World Oil Company, Inc. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835.

The motion for rehearing is overruled.


author: FRASER, Chief Justice.

text:
    F. A. HERNANDEZ et ux., Appellants, v. Jose DOMINGUEZ et al., Appellees.
    No. 5757.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1966.
    Rehearing Denied Feb. 23, 1966.

      Joseph J. Rey, El Paso, for appellants.
    Paul Andow, John C. Akard, Ben End-lich, Alex Silverman, El Paso, for appellees.
   FRASER, Chief Justice.

This is an appeal from the judgment described by the parties thereto as primarily a trespass to try title suit. It appears that in the year 1950 the admitted source of title, J. J. Montes, conveyed to Hector Bejarano and Joe (or Jose) Dominguez two tracts of land in El Paso County, Texas, comprising approximately 43 acres of land. This appeal, however, deals only with two acres lying within the 43-acre tract and which are claimed by Ruperta Gonzalez, Margarita Gonzalez Marrufo and Josefina Gonzalez Sena. Ruperta Gonzalez was the widow of Reyes Gonzalez, who died intestate November 16, 1962, and Mrs. Marrufo and Mrs. Sena were his sole surviving heirs, being his children by a previous marriage. In an instrument dated November 27, 1951 Joe Dominguez entered into a contract of sale to convey to Reyes Gonzalez and wife, Ruperta Gonzalez, two acres of land out of the aforementioned tract or tracts deeded by Mr. Montes to Joe Dominguez and Hector Bejarano. The two tracts were called the “Sand hills property”.

The record shows that this contract of sale entered into by Mr. and Mrs. Gonzalez with Mr. Dominguez in 1951 provided for the conveyance of the property, and the record further shows that $300.00 consideration was paid; that Mr. and Mrs. Gonzalez moved on to the property immediately and made valuable improvements. There does not appear to have been an actual deed executed after the execution of the aforesaid contract, although it is claimed that grantees made frequent demands for such. Further, it appears that although Mr. and Mrs. Gonzalez went into possession in 1951, no objection to their possession of the premises was raised by the co-tenants until almost four years later. In October 1962 Joe Dominguez conveyed all of his interest in the Sand hills property to F. A. Hernandez and wife, Guadalupe Hernandez. Without attempting to detail all of the complicated and extended elements in the chain of title and the makeup of the lawsuit, suffice it to say that the judgment of the trial court recites that the plaintiffs F. A. Hernandez and wife, Guadalupe R. Hernandez, as successors in interest to the original plaintiffs herein, Santiago Renteria et ah, appeared in person and through their attorneys. The judgment then goes on to mention a number of defendants, including a minor defendant, Louis Wayne Brown, who appeared through his guardian ad litem. Among other things, the court sustained the defense of Ruperta Gonzalez and the two married daughters of her deceased husband, Mrs. Marrufo and Mrs. Sena. The trial court also set out the interest of the minor, Louis Wayne Brown, and further ordered that a plat or description be made so as to properly define and identify the two acres in question, and also ordered the right of ingress and egress by way of easement to Ruperta Gonzalez, Mrs. Marrufo and Mrs. Sena. It is stated by the parties to this lawsuit that we are concerned here with the said two acres claimed presently by the three ladies by virtue of the 1951 contract of sale executed by Joe Dominguez to Mrs. Ruperta Gonzalez and her then living husband, heretofore referred to.

The appellants claim among other things, in the first point, that the trial court erred in refusing plaintiff-appellants’ motion for summary judgment. This point cannot be sustained because the trial court found that substantial issues of fact existed, and properly overruled said motion. There is evidence that the motion was considered; and, although the point is not presented, under the circumstances here present, no appeal could be had from the trial court’s action in refusing to grant the' motion for summary judgment. Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208; Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670. Finally, there appears no exception on the part of appellants from the trial court’s ruling on said motion.

Appellants also claim that there was an alleged disclaimer made by counsel for appellee Ruperta Gonzalez, but it appears that this was an oral statement, and the court obviously gave it no legal effect. As pointed out in the appellees’ brief, a disclaimer of ownership cannot be effective to divest title when such disclaimer is not of itself a conveyance. Republic National Bank of Dallas v. Stetson, Tex.Civ.App., 382 S.W.2d 775; affirmed on this point, Tex., 390 S.W.2d 257. Appellants’ first point is accordingly overruled.

In their second point appellants claim that the judgment seeks to deprive appellants of property in violation of Articles 1288, 1289 and 1290, Vernon’s Ann. Revised Civil Statutes of Texas. Although appellants have thoroughly briefed this point and cited us to a number of authorities, we feel that it must be overruled. The defendants acquired the property by means of a contract of sale; full payment of the agreed price was made; and the installation of substantial improvements is acknowledged, as is the fact that they moved on the property immediately and have been there ever since. It is our opinion that the courts have long admitted the possibility of an exception to Article 1288 et seq., and one case is cited holding that these statutes applied only to a conveyance, and not to a contract. Sorsby v. Thom, 122 S.W.2d 275 (Tex.Civ.App., wr. dism.); also, the well-known case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216. There does not seem to be any doubt but what Mr. and Mrs. Gonzalez moved on to the property immediately, paid the full price, erected improvements, and Mrs. Ru-perta Gonzalez still lives there. This point or argument is accordingly overruled.

Appellants also raise the point that the grantor did not have the right to convey this property while owning it in cotenancy with others. However, it has been held that under the proper fact situation, an equitable partition is permitted, and such conveyance will be upheld in equity and the vendee’s right to specific land will be sustained when circumstances render this course equitable. The necessary elements seem to us to be present in this matter. Merriweather v. Jackson, Tex.Civ.App., 38 S.W.2d 599 (n. w. h.). This case also cites the well-known Texas Supreme Court decision in Arnold v. Cauble, 49 Tex. 527. See also 15 Tex.Jur.2d 199, § 32.

Further, it must be pointed out that in the deed from Jose Dominguez to appellants it is set forth that that conveyance was made subject to the claim, right, title, estate or interest of Reyes Gonzalez and wife, Ruperta Gonzalez, and some other persons mentioned. Jose Dominguez testified that when he conveyed the property to Hernandez, he made sure that the interest of Reyes Gonzalez and Ruperta Gonzalez (to the two acres) was protected in such conveyance. Also Joseph Rey, attorney for appellants, testified that his client bought the property with the knowledge that the Gonzalezes had some interest in it, and that Hernandez, through him (Mr. Rey), agreed to take care of whatever rights Mr. and Mrs. Gonzalez had. Appellee Ruperta Gonzalez, in her brief, also calls our attention to a case entitled National Bank of Commerce of Houston v. Dunn, Tex.Civ.App., 381 S.W.2d 654. It is her contention that this case upholds her argument that when a person takes a conveyance of land by virtue of a deed or, as in this case, a contract of sale, wherein it is recited that there exists other interest or contract, the acceptance by the vendee of said deed or contract is an admission of the validity of the mentioned or described interests or contracts relating to other parties, and for this reason the buyer cannot attack the validity of the other interests because he has acknowledged their valid existence when he accepted and paid the consideration for the deed. It is also argued that vendee is estopped by virtue of his acceptance of the instrument.

Appellants further complain that the judgment is inadequate because of insufficient description of the property, but we do not find any merit in this point. The record indicates that the property was used and occupied, and the parties concerned seemed to know the extent and location of the property. It is argued that even had there not been a written contract under which Mr. and Mrs. Gonzalez went into possession, their payment of the consideration, possession, and improvement of the property of itself was adequate to justify and legalize the transaction. We find no error in the court’s requirement that the two acres herein involved be platted after an adequate survey, and appellees granted an easement. We do not think it necessary to discuss the matter of easement, other than to mention that an easement, by necessity, has always been recognized and enforced by the courts. With regard to the requirement of a survey and platting, the court here was merely doing the sensible and proper thing in establishing a better and more adequate written description of the two-acre tract for future use and benefit.

In summation, we find that Mr. and Mrs. Gonzalez entered into a contract of sale with Mr. Dominguez in 1951; paid the entire price agreed upon, and went into immediate possession; and, since that time, valuable improvements have been made on the premises by them. We believe that as a result, an equitable partition was caused and created by this contract of conveyance between Joe Dominguez and Mr. and Mrs. Gonzalez, and that such has attained the status of legality. We further hold that the trial court acted correctly and wisely in ordering a survey and plat, as well as an easement for the benefit of appellees.

We further find that the judgment in so far as it applies to Louis Wayne Brown, a minor, is correct and should be affirmed. The attorney for the minor makes some mention in his brief that the minor should have a greater interest, but we do not find pleadings or proof adequate to meet this request.

Appellants’ points are all accordingly overruled, and the decision of the trial court is affirmed.


author: PARKER, Justice.

text:
    PIONEER CASUALTY COMPANY, Appellant, v. Lester MILLER et al., Appellees.
    No. 6815.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1966.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Joe H. Tonahill, Joe Bob Golden, Jasper, for appellees.
   PARKER, Justice.

The opinion and judgment rendered in this cause on the 6th day of January, 1966, are withdrawn. This opinion will be substituted for the original. Judgment is rendered as hereinafter set forth.

This is a venue case. The appeal is from an order of the district court of Jasper County, Texas, overruling the plea of privilege of Pioneer Casualty Company, appellant, seeking to transfer the case to Bexar County, Texas, the county of- its residence. Hearing was had December 11, 1964, with the order being rendered and entered July 26, 1965. Appellees, Lester Miller and wife, Modell Miller, individually and as next friend of their minor child, Martha Nell Miller, controverted the plea of privilege of Pioneer Casualty Company relying upon exceptions 9 and 9a (1), (2) and (3) to Article 1995, Vernon’s Ann.R.C.S.T., and also §§ 23, 27, 28 and 29a of Article 1995. No findings of fact or conclusions of law were requested by either party. However, in the order overruling Pioneer Casualty Company’s plea of privilege it is recited “The Court finds and decrees that the allegations contained in the'plaintiff’s controverting plea to the plea of privilege of said defendant is supported by a preponderance of the evidence and all things and material allegations contained herein are true and correct.”

Appellees instituted this suit as a common law damage suit seeking to recover damages as a result of an automobile being driven by Freddie Lee Adams allegedly in a careless and negligent manner, causing same to collide with a motor vehicle being operated in a careful, lawful manner by Lester Miller with his wife, Modell Miller, and daughter, Martha Nell Miller, riding therein. Appellees alleged as a result thereof they suffered personal injuries and damages to their motor vehicle. The collision occurred in Jasper County, Texas. Appel-lees further alleged that the automobile of Adams was insured against bodily injury liability by the Pioneer Casualty Company, appellant herein, under its policy No. 323099 from October 29, 1962 to October 29, 1963, which was issued November 6, 1962.

Appellees proved that Pioneer Casualty Company issued a policy to Freddie Lee Adams as the insured. This policy was an indemnity policy providing:

“Coverage L — Personal Liability to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage * * * ” etc.

Such policy also contains what is commonly termed a “no action” clause providing that no action would lie against the company (Pioneer) unless, as a condition precedent thereto, the amount of the insured’s obligation to pay should have been finally determined either by judgment against the insured, etc., or by written agreement by the insured, claimant and the company.

There being no judgment nor any such agreement fixing the insured’s obligation to pay appellees, no cause of action existed against Pioneer Casualty Company at the time of the institution of the suit. It was not primarily liable. Therefore, appellant’s plea of privilege should be sustained. American Fidelity & Casualty Company v. McClendon, 125 Tex. 41, 81 S.W.2d 493; Kuntz v. Spence (Tex.Comm. App.) 67 S.W.2d 254; American Indemnity Company v. Martin (Tex.Comm.App.) 84 S.W.2d 697.

Appellees urge that the appeal by Pioneer Casualty Company has become a moot issue in view of a judgment of the trial court of 19th of November, 1965, contained in a supplemental transcript. This judgment was set aside. This appeal is not moot.

Appellant’s points of error urging the above matters are each and all sustained.

The judgment of the trial court is reversed and it is ordered that the cause of action asserted by appellees as against appellant be transferred to a district court of Bexar County, Texas.

Appellees’ motion for rehearing is overruled.


author: STEPHENSON, Justice.

text:
    Nola WHITE, Appellant, v. George P. KIRKPATRICK, Appellee.
    No. 6796.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 13, 1966.
    Rehearing Denied Feb. 9, 1966.
    Keith, Mehaffy & Weber, Beaumont, for appellant.
    B. F. Whitworth, Jasper, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order granting defendant’s plea of privilege. Plaintiff, Nola White, brought this action in Jefferson County against defendant, George P. Kirkpatrick. Defendant filed his plea of privilege to be sued in Tyler County, the county of his residence. Plaintiff relied upon §§ 7 and 9 of Article 1995, Vernon’s Ann.Civ.St., in his controverting affidavit. The parties will be referred to here as they were in the trial court.

Plaintiff, an attorney, assisted defendant, also an attorney, in acquiring a mineral interest in land located in Newton County September 15, 1944. It was agreed that plaintiff should have a 10% interest in such minerals for services performed. Plaintiff alleged as fraud that defendant told plaintiff that title to such mineral had failed, that back taxes on such minerals did not warrant pursuing the matter, and that defendant had abandoned the project and led plaintiff to believe that defendant had lost on the transaction. Plaintiff further alleged that defendant continued to recognize his 10% interest in such minerals and continued to promise that if anything ever came of the deal a conveyance of such 10% interest would he made. Plaintiff further alleged as fraud that defendant leased such minerals to various oil companies and received bonuses and delay rentals but concealed this from plaintiff and paid none of the money to plaintiff. Plaintiff alleged that defendant converted this money to his own use and benefit and repudiated his obligation to plaintiff for the first time July 28, 1964. Plaintiff alleged that a constructive trust arose as a matter of law and prayed for a recovery of an undivided 10% interest in such minerals and for an accounting and. judgment for a sum equal to 10% of the money received from the leasing of such minerals.

In his controverting affidavit plaintiff alleged: that defendant committed a fraud in Jefferson County, Texas, under § 7, Art. 1995, V.A.C.S.; that defendant violated the provision .of Art. 1534 of the Penal Code and did embezzle, fraudulently misapply and convert to his own use, plaintiff’s interest in the land and the proceeds of the lease money in Jefferson County, Texas, under § 9, Art. 1995, V.A.C.S.; and, also that such action constituted conversion under the latter subdivision.

The evidence showed the original transaction occurred as alleged at a time when both plaintiff and defendant resided in Jefferson County. The evidence also showed that defendant was a resident of Tyler County at the time this suit was filed, and had been for some seven years. The evidence showed that defendant first leased such minerals to Continental Oil in 1951 and later to Sun Oil and that some $47,-000.00 had been received from such leases. Defendant alleged and offered evidence to prove that he paid plaintiff $1,000.00 in cash for such mineral interest April 5, 1948. Neither the trial court nor this court could consider such defense in determining the venue questions.

The essence of this action is the recovery of 10% of the minerals involved plus 10% of the money received from leasing the minerals. This is not an action based upon fraud, as the fraud is alleged only as a reason for not having sought the transfer of such 10% mineral interest at an earlier date. Further, there are no allegations and no evidence that any of the statements made upon which plaintiff relies as constituting fraud, were made in Jefferson County, and no allegations and no evidence that the money received by defendant, was received in Jefferson County. Our courts uniformly hold that the dominant purpose of the venue statutes is to give a person who has been sued, the right to defend such suit in the county of his domicile, except under well defined exceptions. Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062.

Affirmed.

PARKER, J., not sitting.


text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. John Herbert TOUCHSTONE, Appellee.
    No. 4004.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 14, 1966.

      Joe Resweber, County Atty., Houston, for appellant.
    Dan Walton, Lockett, Brady, Walton & Hooey, Houston, for appellee.
   WALTER, Justice.

This is a driver’s license suspension case. On March 8, 1963, John Herbert Touchstone’s operator’s license was suspended for twelve months. On September 26, 1963, he was convicted of the offense of driving an automobile without an operator’s license in the Corporation Court of the City of Houston. After an administrative hearing in the Corporation Court the Department extended the period of suspension for an additional twelve months as provided for in Section 24(c) of Article IV of Article 6687b of Vernon’s Ann.Tex.Civ.St. Touchstone perfected an appeal from this suspension order to the County Court.

The court overruled the Department’s motion for summary judgment and granted Touchstone’s motion for a summary judgment. The Department has appealed. It contends that the court erred in granting Touchstone’s motion and in overruling its motion because the record established that there were no genuine and material issues of fact and it was entitled to a judgment as a matter of law and that Touchstone was not. The Department also contends that there was a genuine and material issue of fact as to whether Touchstone’s Texas operator’s license was in existence at the time of its suspension.

In Touchstone’s amended motion for a summary judgment he attached his affidavit that he was granted a driver’s license on August 2, 1944; that such privilege to drive ceased to exist on January 29, 1961, and his license expired on such date; that he did not have a driver’s license from January 29, 1961, to the end of that year nor at any time during 1962 or 1963 and that he did not operate a motor vehicle on or about September 1, 1963, as alleged in the Department’s original answer and cross action.

The Department supported its motion for summary judgment with the affidavit of a custodian of the records of the Drivers and Vehicle Division of the Department of Public Safety which revealed that Touchstone, the holder of operator’s license number 0493038, renewed his license on the 28th day of April, 1964, which renewed license was to expire on the 28th day of April, 1966 and that proper timely notice of the administrative hearing was sent to Touchstone by certified mail. The Department also attached a certified copy of notice of conviction of Touchstone on September 1, 1963, of the offense of driving without a Texas Operator’s License.

Appellee’s position is that so long as he did not have a driver’s license, the Department had no authority to issue an order suspending a non-existent license.

Our Supreme Court in Texas Department of Public Safety v. Pryor, 160 Tex. 178, 329 S.W.2d 85 said:

“The question as to the suspension of Pryor’s commercial operator’s license has been moot since February 28, 1958, the date of expiration of his 1957-1958 license. Art. 6687b, Sec. 18(d) provides that a commercial operator’s license shall expire one year after its issuance, and shall be renewable on or before its expiration date.”.

Article 6687b, Sec. 18(c) provides that “all licenses issued under this article shall expire two years from date of issuance.”

We hold that existence of a license at the time of its attempted suspension is a prerequisite thereto. In Trinity Universal Insurance Company v. Horton, Tex., 363 S.W.2d 376, (no writ history), the court said:

On the hearing of a motion for a summary judgment the court must determine whether there is any issue of fact to be tried. The court cannot weigh the evidence, determine the credibility of the witnesses and try the case on affidavits. All doubts as to the existence of a genuine issue as to a material fact must be decided against the party moving for a summary judgment. The court must accept as true all evidence of the party opposing such a motion which tends to support his contention and must give him the benefit of every reasonable inference which may be drawn therefrom. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.”

The Supreme Court in James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 said:

“The general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the jury.”

Mr. Joe D. Vorskey, Deputy Custodian of Records of the Department of Public Safety filed an affidavit in which he stated, in effect, that the appellee was the holder of a Texas operator’s license. The appellee was an interested witness. When we consider the record in the light of the rules we are to follow in summary judgment cases, we cannot say that the ap-pellee conclusively established that.he was not the holder of an operator’s license at the time of its attempted suspension.

The judgment is reversed and the cause is remanded.


text:
    Theresa FONTENOT, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.
    No. 6779.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1966.
    Rehearing Denied Feb. 23, 1966.

      Waldman & Smallwood, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for ap-pellee.
   STEPHENSON, Justice.

This is an action for damages for injuries received by plaintiff when she slipped and fell in defendant’s store. At the close of plaintiff’s testimony, the jury was instructed to return a verdict for defendant and judgment was rendered for defendant. The parties will be referred to here as they were in the trial court.

Plaintiff alleged in her petition that she slipped on a banana peel, fell and injured herself while shopping in defendant’s store. She alleged that defendant was negligent in allowing the banana peel to remain on the floor, in failing to warn plaintiff, in failing to discover and remove the banana peel from the floor, and as follows:

“d. In the event defendant, its agents, servants or employees had failed to discover and remove said banana peel, said item had been there for a sufficient length of time for the defendant’s agents, servants or employees in the exercise of ordinary care, to have discovered and removed same.”

It is agreed that there was no evidence that defendant put the banana peel on the floor, or that defendant knew the banana peel was on the floor. Plaintiff relies solely upon a cause of action based upon the banana peel having remained on the floor for such a period of time that it would have been discovered and removed by defendant exercising ordinary care. H. E. Butt Grocery Company v. Johnson, Tex.Civ.App., 226 S.W.2d 501.

It is also admitted that this court is governed by the rule set forth in White v. White, 141 Tex. 328, 172 S.W.2d 295, as follows :

“In determining whether it was proper to instruct a verdict in this case, we must view the evidence in the light most favorable to the petitioners, the losing parties. * * * We must indulge against the instruction every inference that may be properly drawn from the evidence. * * * And, if the record reflects any testimony of probative force in favor of the losing parties, we must hold the instruction improper.”

It is uncontroverted that plaintiff slipped, fell and sustained an injury. The sole question on appeal is whether the evidence raised an issue of fact for the jury to determine.

It is the defendant’s contention that proof as to the length of time the banana peel was on the floor was not sufficient of itself to raise an issue of fact for the jury. It is argued that plaintiff failed to show any other circumstance such as the size of the store, number of customers present, the location of the aisles, the number of employees on duty, the inspection and cleaning procedures, the lighting, the frequency of travel or other matters.

The witness, Dorothy Mae Royal, testified she saw a banana peel on the floor at the location plaintiff slipped, some twenty to thirty minutes before plaintiff slipped. Admittedly, the testimony is not extensive as to the size and description of this Sears store. However, a reasonable interpretation of the evidence shows the store was of sufficient size to have a manager and assistant manager, and to have separate departments with department managers, and to have at least three floors, and to have entrances on Magnolia, Liberty and Broadway, and to have about 200 employees. The manager of the store testified there was a porter assigned to each floor and it was the porter’s responsibility to keep the floors clear of debris. The testimony given by plaintiff showed the accident happened February 1st, 1962, around one o’clock when she slipped on a banana peel in the aisle at the material counter.

We have concluded the evidence raised an issue of fact for the jury to determine as to whether the banana peel had been on the floor a sufficient length of time for the defendant, in the exercise of ordinary care, to have discovered and removed it.

Reversed and remanded.