author: SHARPE, Justice.

text:
    TEXAN MAN’S SHOP, INC., et al., Appellants, v. NUNN-BUSH SHOE COMPANY, Appellee.
    No. 190.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 31, 1966.
    Rankin, Kern & Martinez, by Stonewall Van Wie, III, McAllen, for appellants.
    Kelley, Looney, McLean & Littleton, by D. F. Martinak, Edinburg, for appellee.
   SHARPE, Justice.

Suit on sworn account instituted by ap-pellee, plaintiff below, against appellants and others, defendants below.

In a non-jury trial the lower court rendered judgment in favor of appellee against appellants Texan Man’s Shop and C. M. Hickman, jointly and severally, for the amount of $2,560.05, which included $500.00 for attorney’s fees. Judgment was also rendered that appellee take nothing against two other defendants, but such action is not involved in this appeal. The trial court made and filed original and amended findings of fact and conclusions of law.

Appellants urge thirteen points of error, which are replied to by appellee’s six counterpoints. Appellants’ points 1, 2, 3 and 4 assert, in substance, that the evidence was legally and factually insufficient to authorize a finding that the goods had been shipped or delivered to appellant Texan Man’s Shop, Inc., and their points 6, 7, 8 and 9 urge the same contentions as to appellant C. M. Hickman; points 10 and 11 assert legal and factual insufficiency of the evidence to authorize a finding that the goods were ever sold to or bought by Hickman in his individual capacity; point 12 asserts that there is no evidence concerning reasonableness of attorney’s fees awarded to appellee; point 13 asserts error of the trial court in overruling three special exceptions to appellee’s petition based upon the sworn account; point 5, the remaining point not heretofore mentioned, asserts that the trial court erred in admitting into evidence the account and supporting invoices of appellee.

The trial court found, among other things, that “Goods, wares and merchandise as reflected in copies of invoices attached to Plaintiff’s First Amended Original Petition as Exhibit 'C’ were shipped to Texan Man’s Shop, Inc.” There was no express finding concerning delivery to C. M. Hickman. The trial court concluded that Texan Man’s Shop, Inc., and C. M. Hickman were jointly and severally liable to appellee in the sum of $2,060.05 for goods, wares and merchandise sold to Texan Man’s Shop, Inc., and for reasonable attorney’s fees in the amount of $500.00, and that appellee failed to prove its cause of action based on an account of Texan Man’s Shop, Inc., assigned to appellee by Newton Manufacturing Company.

A review of the Statement of Facts and the exhibits referred to by the trial court leads to the conclusion that the evidence is factually insufficient to support findings that the goods had been delivered to either Texan Man’s Shop, Inc., or C. M. Hickman. Appellants’ points 2 and 7 which assert factual insufficiency on the issue of delivery must be sustained.

Appellee’s petition was based upon a sworn account for goods, wares and merchandise allegedly sold and delivered to appellants. The appellants filed a proper sworn denial which placed the burden upon appellee to establish each and every item of its account by legal and proper evidence. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941).

The evidence presented by appellee consisted of the testimony of two witnesses and certain exhibits. The testimony of the witness Hugh Cole is not material to this appeal as it related only to the assigned account of Newton Manufacturing Company upon which recovery was denied by the trial court, and there is no appeal from that portion of the judgment. The witness Arthur C. Keller was credit manager of appellee. He identified the records of his company, particularly, its account with Texan Man’s Shop, Inc., and certain invoices in connection therewith. Appellants did not offer any evidence and have consistently contended that appellee did not make out a case against them. Keller had a general knowledge of the account but could not testify concerning actual shipment or delivery of the merchandise. The invoices identified by Keller contained many entries of catalog or code numbers, with very few of them specifically identifying the goods, such as shoes, laces, etc., allegedly sold and delivered. Although Keller’s testimony and the invoices identified by him constitute circumstantial evidence that some of the goods may have been shipped to Texan Man’s Shop, the evidence is wholly insufficient to show shipment as to a number of the items relied on in the account for which recovery was allowed. In any event, the evidence is factually insufficient to show delivery to anyone. Delivery of the merchandise was an essential element of appel-lee’s case, and factual insufficiency to establish the same precludes a recovery in favor of appellee on the present record. Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ.App.1965, n. w. h.); Trice Contract Carpets & Furniture, Inc., v. Martin, 334 S.W.2d 554 (Tex.Civ.App., 1960, n. w. h.); Dodson v. Kemper Military School, 42 S.W.2d 288 (Tex.Civ.App., 1931, wr. dism.).

Since this case must he reversed and remanded for the reasons stated, discussion of appellants’ remaining points is unnecessary. However, in view of another trial and the contentions made by appellants under their point 13 on this appeal, it is our view that the trial court was also in error in not sustaining three special exceptions urged by appellants to appellee’s petition. We need not pass upon the question as to whether such error was harmless on the present record in view of the indicated disposition of this appeal. The allegations of appellee’s petition were general and consisted in large part of conclusions. The account and invoices attached to the petition identified the goods, wares and merchandise allegedly sold, for the most part, by date, price and code number. The rule applicable to such a pleading has recently been reiterated in the case of Wallis v. McGuffey, 392 S.W.2d 802 (Tex.Civ.App., 1965, n. w. h.) as follows:

“It has been repeatedly held by our courts that general statements contained in affidavits such as ‘merchandise’, followed by listing of invoice numbers, or giving the dates and figures without description of the various items, is insufficient to comply with Rule 185, T.R.C.P." (citing cases).

As against appellee’s present pleading, appellants’ special exceptions I, II and III are good and appellee should be required to amend in order to give appellants more specific information.

The judgment of the trial court is reversed and the case is remanded for new trial.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    Joyce EDMONDSON et vir, Appellants, v. Lou Anne KELLER et vir, Appellees.
    No. 11380.
    Court of Civil Appeals of Texas. Austin.
    March 30, 1966.
    Rehearing Denied April 20, 1966.

      Byrd, Davis & Eisenberg, Tom H. Davis, Harley Clark, Jr., Austin, for appellants.
    Lee Curtis, Belton, Coleman Gay, Austin, for appellees.
   ARCHER, Chief Justice.

This is a personal injury action brought for damages plaintiff sustained in an automobile collision. Plaintiff was riding in a car driven by defendant when it ran into the rear of a Stowe Lumber Co. truck. Plaintiff and defendant had known each other all their lives, had been brought up together and were living together when the collision occurred.

Plaintiff’s case has been before this Court twice previously. In McCormick v. Stowe Lumber Co., 356 S.W.2d 450 (Austin Civ. App., n. r. e., 1962), this Court held that as a matter of law plaintiff and defendant were on a joint enterprise and that defendant was guilty of negligence which was imputed to plaintiff, thus barring her recovery against the Stowe Lumber Co. In Edmondson v. Keller, 376 S.W.2d 5 (Austin Civ.App., n. r. e. 1964), this Court held that as a matter of law plaintiff was not guilty of contributory negligence and that in a suit between plaintiff and defendant the defendant’s negligence would not be imputed to the plaintiff.

Plaintiff filed a motion in limine to prevent the defendant from introducing evidence or commenting upon their friendship, which was denied and some such evidence was introduced over plaintiff’s obj ections.

The case was tried with the aid of a jury on Special Issues which were answered by the jury favorable to plaintiff except as to the amount of damages for past loss of earnings and for diminished capacity to work and earn money, and in not allowing any damages for past and future pain and suffering.

The appeal is founded on three points of error and are that the Court erred in allowing immaterial evidence to be introduced of the friendship between plaintiff and defendant, and the award of the jury of ony $600.00 for past loss of earnings and $400.00 for future diminished capacity to work and earn money was against the great weight and preponderance of the evidence, and the finding by the jury of no damages for past and future pain and suffering and mental anguish was against the great weight and preponderance of the evidence because the undisputed evidence shows that plaintiff sustained substantial injuries.

The accident occurred on June 13, 1959, in Belton, Texas near the intersection of U. S. Highway 81 and Farm Road 436-when an automobile driven by the defendant and in which plaintiff was riding ran into the rear end of a truck-trailer. The plaintiff was in the front seat and was asleep at the time of the collision and was thrown from the car onto the highway in an unconscious condition, regaining consciousness a few days subsequent in a hospital in Seguin. Immediately after the accident plaintiff was taken to the Sewell Hospital in Belton and received treatment from Dr. Sewell. She had skin abrasions and a laceration to her right hand.

The plaintiff and defendant were lifelong friends, having lived in the same town and at the time of the collision were roommates and were on a trip to attend a rodeo, and the car in which they were riding belonged to plaintiff’s mother, but used by permission.

The jury awarded $547.34 for past medical expenses and $600.00 for loss of earnings and $400.00 for future loss of capacity to work.

No damages were awarded for pain, suffering and mental anguish.

Appellant takes the position that evidence of the close friendship between plaintiff and defendant was not material to the determination of liability and the assessment of damages was not material to such determination, and the introduction of such was harmful to the plaintiff.

Appellant asserts that the jury was motivated by some factor other than the evidence, and plaintiff’s case was prejudiced by the friendship evidence.

Since we are reversing and remanding this case, we do not believe that the evidence as to long and close friendship of the plaintiff and the defendant was material to a determination of negligence, damages or an amount to be allowed. Its only conceivable proper relevance would be to show a possible motive of the parties to color their testimony and hence to affect their credibility as witnesses. If the trial court concludes that such evidence is admissible on such grounds he should permit full examination of the witness regarding the effect, if any, of this suit and its outcome on such friendly relationship.

The finding of the jury of no damages for past and future pain and suffering and mental anguish was against the great weight and preponderance of the evidence because the undisputed evidence shows that the plaintiff sustained substantial injuries or in any event some damages.

As a result of the collision plaintiff was thrown from the car and onto the highway in an unconscious condition, and was treated by Dr. Sewell in his hospital in Belton for a few days and then taken to a hospital in Seguin for further treatment. The • evidence as to her injuries and the medical treatment was fully detailed on the trial and there is no useful purpose in reviewing such in further detail here.

The answer of the jury that plaintiff suffered no damages is directly contrary to all of the evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795; Floyd v. Organ, Tex.Civ.App., 359 S.W.2d 190, n. r. e.

The amount of damages is largely within the jury’s discretion. However, they must award something for every element of damage resulting from an injury. Evers v. Langerhans, Tex.Civ.App., 122 S.W.2d 208, n. w. h.; Clark v. Spurdis, Tex.Civ.App., 258 S.W. 881, error dism.

In McCormick v. Stowe Lumber Company, supra, this Court established negligence on the part of defendant which was a proximate cause of the collision and plaintiff’s injuries in sustaining a summary judgment.

In Edmondson v. Keller, supra, it was established that plaintiff was not con-tributorily negligent.

Appellee has a counterpoint directed to the error of the court in rendering judgment for appellant for the medical and hospital expenses which had already been paid by Northwestern Mutual Insurance Company.

In response to Special Issue No. 11 the jury found that the reasonable value of the necessary medical services rendered to the plaintiff to the time of trial was $547.34.

The so-called collateral source rule was applied in this case. The policy entered into in this case was a contract agreeing to pay for medical expenses incurred by occupants of the car involved if injured in a collision, and to protect from the consequences of the negligent operation of this same car those driving with the permission of the owner. Separate premiums were paid for each contract, which were contained in a single policy, and the insurance company contends that the execution of one contract excuses the performance of the other.

We overrule this crosspoint.

There are no Texas cases cited by either party directly in point, but there are out of state cases which are in point. Severson v. Milwaukee Auto Insurance Co., 265 Wis. 488, 61 N.W.2d 872, 42 A.L. R.2d 976; Hack v. Great American Insurance Co., 175 So.2d 594 (Fla.App., 1965); Appleman, Insurance Law & Practice, Vol. 8, Sec. 4896.

In Southwestern Fire & Casualty Co. v. Atkins, Tex.Civ.App., 346 S.W.2d 892, n. w. h., the Court held that the company owed an amount to the insured as if there had been two separate policies. American Indemnity Co. v. Garcia, Tex. Civ.App.1966, 398 S.W.2d 146.

Appellee cites Texas Power & Light Co. v. Jacobs, 323 S.W.2d 483, er. ref., n. r. e. and Yarrington v. Thornburg, 198 A.2d 181, Superior Ct. of Del. 1964, but we do not believe that these cases are controlling.

The judgment of the trial court is reversed and remanded for a new trial.

Reversed and remanded.


author: SELLERS, Justice.

text:
    Charles SPANGLER et al., Appellants, v. Curtis HICKEY et al., Appellees.
    No. 198.
    Court of Civil Appeals of Texas. Tyler.
    March 31, 1966.

      Tom Bankhead, Bankhead & Davis, Carthage, Wardlow Lane, Center, for appellants.
    Fred Whitaker, Carthage, Billy Hunt, Fairchild & Hunt, Center, for appellees. '
   SELLERS, Justice.

The former opinion of this Court in this case is withdrawn and the following substituted for the same:

Curtis Hickey, as Lessor, and others holding rights in the lease under him, brought this suit against A. A. Morgan, the original Lessee, and those holding under him. Plaintiffs’ suit was one in trespass to try title to 0.44 of an acre of land in the proven Carthage Gas Field. The plaintiffs, by special pleading, claimed the original lease had terminated for failure of defendants to secure a connection to a pipeline and the production of gas within the time set out in the lease for such performance. Plaintiffs also sought to recover of defendants the value of production from the well after a connection was had.

The defendants answered by a general denial plea of estoppel on the part of plaintiffs to assert that the lease had terminated, alleged mutual mistake, fraud on the part of plaintiffs, and by cross action against plaintiffs, sought to recover for the value of improvements in good faith.

This case has been tried and appealed prior to the entry of this judgment. The first trial, which was tried to a jury, resulted in a judgment for defendants for title to the leasehold estate. Plaintiffs appealed this judgment to the Court of Civil Appeals at Texarkana, and the judgment was reversed and the cause remanded for another trial, 358 S.W.2d 216.

When the mandate was received in the trial court, the plaintiffs, appellees here, in their brief, state:

“ * * * After remand appellees, as plaintiff below, filed their Second Amended Original Petition on July 24, 1963 * * * setting forth the two separate causes of action, one of which was against the Lease Claimant Defendants for an adjudication of a status of the lease; and the other against Lease Claimant Defendants and the production purchasers for an accounting and for judgment against all defendants, jointly and severally, for the value of the production sold. * * *
“By Order entered June 14, 1965, the trial court severed from the main case, and ordered same separately docketed, all issues between all parties except the issues of 1) whether or not the oil, gas and mineral lease and the leasehold estate of defendants have terminated; 2) whether or not the record of said lease should be removed as a cloud on the title to the land described in said lease; and 3) whether or not plaintiffs (appellees) are entitled to recover from defendants (appellants) title to and possession of said land * *

In its final judgment for plaintiffs granting their motion for summary judgment, the court decrees that plaintiffs have judgment for title and possession of the leasehold estate against all defendants and the judgment there contains this provision:

“ * * * All issues and asserted cause of action between all parties, except those adjudicated herein, have been severed herefrom by Order signed and entered; $ >ii Hfi >*

It is apparent from this judgment that the plaintiffs’ right to an accounting from the defendants was not adjudicated in this judgment, nor was defendants’ cross action for improvements in good faith adjudicated, but these issues were severed out of the main case by the court and remained to be heard at a future trial.

The defendants excepted to the order of the court in severing this case into two causes of action and have assigned the same as error in this court.

We are .of the opinion that appellants’ contention must be sustained. As we construe the pleadings of the parties,, they do not present two distinct law suits subject to a severance under the Rules of Civil Procedure No. 41. The plaintiffs’ case for a termination of the lease and accounting is the only law suit they have, and defendants’ defense and cross action for improvements in good faith are based upon plaintiffs’ sustaining their contention that the lease has terminated. The whole controversy grows out of but one transaction and should be tried in one case.

Chief Justice Calvert made this observation in the case of Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648:

“ * * * Our courts have always frowned upon piecemeal trials, deeming the public interest, the interests of litigants and the administration of justice to be better served by rules of trial which avoid a multiplicity of suits. * * * ”

We have direct authority that it was error for the trial court to sever the cross action of defendants, Ulmer v. Mackey, Tex. Civ.App., 242 S.W.2d 679:

“ * * * We find the trial court further erred in severing appellant’s cross action because same is based upon identical facts and issues growing out of and connected with appellee’s cause of action against him. Such cross action or counterclaim is styled ‘compulsory counterclaims,’ under (a), Rule 97 Texas Rules of Civil Procedure. It is mandatory to file such action in the cause of action set up by the opposing party in order to avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit. We deem if it is necessary to file such cross action that it is also imperative to try it in the same cause. See notes under Rule 97, sec. (a). * * * ”

As evidence that the facts present but one law suit, we refer to the recent case of Fox v. Thoreson, Tex., 398 S.W.2d 88, very similar-to the facts in this case, and all issues were decided in one trial which went all the way to the Supreme Court.

Since the trial court erred in granting a severance in this case, it is our opinion that the judgment of the trial court should be reversed and the cause remanded to that court for another trial.


author: WILSON, Justice.

text:
    Bennie Mae MYLES et at., Appellants, v. A. J. JACKSON GARBAGE DISPOSAL SERVICE et al., Appellees.
    No. 4430.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    Rehearing Denied April 14, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Wayne Fisher, Raymond L. Mc-Dermott, James R. Tucker, Mabel Grey Howell, Houston, for appellants.
    Banister, Boswell & O’Toole, Houston, for appellees.
   WILSON, Justice.

Myles was killed when the lumber truck he was driving collided with defendants’ garbage truck which he met at a sharp curve in a highway. The suit for damages resulted In a judgment for defendants on jury findings that Myles’ negligence as to speed, lookout and application of brakes proximately caused the collision. We affirm.

Appellants complain that the trial court erred in accepting a partial and incomplete verdict. The jury answered every issue on which findings were required except the damage issue, which was not related to negligence or proximate cause. The finding on the damage issue was immaterial under this state of the record, and the verdict was properly received. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335; Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W. 2d 220, 221, no writ.

Points that there is no evidence, or insufficient evidence, to support findings of Myles’ negligence, and proximate cause, have been considered and are overruled.

It is contended the court improperly coerced an agreement by the jurors on the verdict, and erred in overruling plaintiffs’ two motions to declare a mistrial. The facts emphasized by appellants are summarized as follows: Trial of the case consumed five days. Plaintiffs’ counsel had made a “hung jury” argument, contrary to the court’s instruction, to the effect that plaintiffs “would rather have a hung jury” than to have jurors “let themselves be talked into siding with the defendant.” For disobedience of the instruction he was fined for contempt. The jury retired to deliberate at 1:45 P.M. on Friday, and recessed at 4:30 to resume on Monday at 9:00 A.M. It recessed at 4:30 P.M. on Monday, with a lj^-hour lunch period. - On Tuesday deliberations continued from 9:00 A.M. to 5:30 P.M., except for the lunch hour. During this day the jury inquired of the court, “Who decides when the jury' is deadlocked?” There was no other indication as to whether the jury could not agree on a verdict.

On Wednesday about 9:30 A.M., after deliberations began for the day, plaintiffs’ counsel made a motion to discharge the jury and declare a mistrial, which was overruled. The jury continued deliberations until noon, when they returned to the jury box. The court inquired of the foreman whether he believed a verdict could be reached. Upon receiving a negative answer, the court read, by agreement, the answers which had been completed, and received them as the verdict.

On Monday the jury requested additional definitions of terms used in two issues. The court substituted other issues for these by agreement of the parties. During that day, also, time was consumed in reading the testimony of two witnesses at the jury’s request. This testimony concerned the issue of intoxication of deceased, about which the jury asked various questions. On Tuesday afternoon the court, with approval of counsel for plaintiffs, asked how many issues had been answered, and received the reply: “seventeen.” Just after adjournment plaintiffs made a motion that the “court declare a hung jury” and order a mistrial, which was overruled. At this time, at defendants’ request, the intoxication issue was withdrawn from consideration.

Rule 289, Texas Rules of Civil Procedure provides the jury may be discharged when they have been kept together for such time as “to render it altogether improbable that they can agree.” There is nothing in the record to indicate that this point had ever been reached before the court was informed the jury was unable to reach agreement on the damage issue, and the verdict was received.

In our opinion the record reflects no abuse of discretion, and the overruling of appellants’ motion was not error. See Youngblood v. Wilson & Cureton, Tex.Civ. App., 321 S.W.2d 887, writ ref. n. r. e.; Pope, The Judge-Jury Relationship, 18 S.W. Law J., 46, 60; 3 McDonald, Texas Civil Practice, Sec. 14.03, p. 1227; 109 A.L.R. 72; 19 A.L.R.2d 1258.

Appellants’ points are overruled. Affirmed.


text:
    Frances W. STONEDALE, Appellant, v. Robert M. STONEDALE, Appellee.
    No. 209.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 31, 1966.

      Willis & Willis, by George P. Willis, El Campo, for appellant.
    Cattanach, Capps, Turner, Coe, Reardon & Chaney, by T. M. Reardon, Houston, for appellee.
   SHARPE, Justice.

Appellee’s motion to dismiss the appeal for want of jurisdiction in this court is granted.

The attempted appeal is from a judgment rendered, signed and filed on September 20, 1965, which set aside a prior judgment rendered, signed and filed in the same court 87 days prior thereto on June 25, 1965. The record herein consists of only the transcript, filed in this court on November 19, 1965, which reflects the following: The parties were divorced by decree of the district court of Harris County, Texas, on or about February 7, 1956. Subsequent proceedings in Harris and Wharton Counties have involved custody and visitation rights of three minor children. On April 5, 1965, appellee, the father of the children, filed an instrument in the trial court designated “Petition to modify decree adjudicating visitation rights of plaintiff herein with the minor child of the parties * * *”. The prayer of the petition, among other things, requested that the former decree concerning custody of the minor child be set aside and that the trial court enter a new decree as to such custody. On April 13, 1965, the defendant in the trial court, appellant here, filed an answer contesting the petition and praying for other relief, and also filed a cross-action seeking judgment against plaintiff, appellee here, on a promissory note in the amount of $4,500.00. The first judgment of the trial court recites that the matter was heard on April 23, 1965, with all parties and their attorneys present, and that it was “Rendered and signed this 25th day of June, 1965.” Ap-pellee’s (plaintiff’s) petition and the relief sought therein was granted, at least in part. The judgment of June 25, 1965, does not contain any notice of appeal. Appellant filed an appeal bond dated July 28, 1965, 33 days after June 25, 1965, and which was not approved and filed by the clerk until August 2, 1965, 38 days thereafter.

On August 23, 1965, some 59 days after the judgment of June 25, 1965, appellant filed in the trial court a motion alleging, in substance, that in open court on June 25, 1965, at the conclusion of the hearing and at the time of entry of judgment, her attorney gave notice of appeal and requested that it be noted in the judgment entered on that date; that thereafter the appellant filed an appeal bond and requested the clerk to prepare a transcript; that the attorney for appellant did not learn that said notice of appeal had not been entered in said decree until receipt of the transcript from the district clerk. The prayer of the motion reads as follows:

“WHEREFORE this Defendant prays that the Judgment and Decree of June 25, 1965, be set aside and, in lieu thereof, that the Judgment attached to this Motion be entered. The sole and only purpose of the entry of this Amended Judgment is to reflect the fact that this Defendant did give notice of appeal in Open Court on June 25, 1965, and the omission of such notice from the Judgment entered on that date was only because of an error and mistake.”

On September 20, 1965, the trial court entered a second judgment which contained the same wording as that of June 25, 1965, except in three particulars. The first difference is that the second order begins with and adds the sentence “The Judgment and Decree of June 25, 1965, is hereby set aside and the following substituted in lieu thereof.” The second difference is that the following sentence is added as the penultimate paragraph: “To which the Defendant in open Court excepted and gave notice of appeal to the Court of Civil Appeals, Corpus Christi, Texas.” The third difference is that the final paragraph is changed to read: “Rendered and signed this the 20 day of Sept. 1965.” The second order was approved as to form by counsel for both parties “with exception to notice of appeal by defendant.” On November 13, 1965, the trial court made and filed findings of fact and conclusions of law. The transcript, filed in this court on November 19, 1965, contains a certificate by the district clerk that it was delivered to appellant’s counsel on November 16, 1965.

One ground of appellee’s motion to dismiss is that the judgment rendered, signed and filed on September 20, 1965, is a nullity under Rule 329b, par. 5, Texas Rules of Civil Procedure, which provides that judgment shall become final thirty days after the date of rendition of judgment or order overruling original or amended motion for new trial, and cannot thereafter be set aside by the trial court except by bill of review for sufficient cause filed within the time allowed by law; that the only purpose served by the entry of the second judgment was to attempt to restart the appellate time table which had theretofore expired.

Appellant has contested appellee’s motion to dismiss on the grounds that the trial court was authorized to enter the second judgment as a proper nunc pro tunc judgment and under Rule 316, T.R.C.P., in the exact form and words of the first judgment except to include a notice of appeal therein where it was convinced that notice of appeal was given and erroneously omitted from the first judgment.

We agree with appellee.

The second judgment of September 20, 1965, does not qualify as a properly rendered judgment nunc pro tunc or under the provisions of Rules 316 or 306a, T.R. C.P. The inherent right of a court to render judgment nunc pro tunc and also under Rules 316, 317, T.R.C.P., in order to correct clerical errors and mistakes in the record concerning the judgment actually pronounced and to make the record conform to the truth is undoubted. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Truelove v. Truelove, 266 S.W.2d 491 (Tex. Civ.App., 1953, wr. ref.); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); 33 Tex.Jur.2d, Judgments, § 28, p. 516. Where the mistakes in the record are corrected and a judgment nunc pro tunc is properly rendered, the time for appeal runs from the date the trial judge signs such nunc pro tunc order. Rule 306b, T.R.C.P. However, in this case, the appellant did not request the trial court to enter a nunc pro tunc judgment; nor did it render one. Instead, appellant asked the trial court to set aside the first judgment, which was rendered, signed and filed more than thirty days prior to appellant’s motion, and to enter a new and second judgment. The second judgment was not rendered “now for then,” but was “Rendered and signed this the 20 day of September, 1965.” The record does not show that the trial court held a hearing of any kind in connection with appellant’s motion of August 23, 1965. There is no finding that appellant gave a notice of appeal in open court on June 25, 1965; nor that there was a mistake in the record of the judgment and that it should be corrected. Appellant does not contend or show that a docket or minute entry was made at the time such notice of appeal was alleged to have been given, or that such docket entry should or could have been made thereafter to reflect such fact. There is no showing that the judgment pronounced by the trial court on June 25, 1965 included the giving of a notice of appeal by appellant or that appellant was misled by the court or counsel in not including such notice in the written judgment signed and entered by the court. In short, the second judgment fails to disclose the ground upon which the trial court acted or what the entry thereof intended to correct. See Ellison v. Panhandle & Santa Fe Railway Company, 306 S.W.2d 909 (Tex.Civ.App., 1957, n. w. h.). In the case of Huggins v. Johnston, 3 S.W. 2d 937, 940 (Tex.Civ.App., 1931, affirmed 120 Tex. 21, 35 S.W.2d 688), the court said: “The only purpose of a nunc pro tunc entry is to correctly evidence upon the records of the court a judgment, decree or order actually made by the court, but for some reason not entered of record at the proper time.” In the case of Finnigan-Brown Co. v. Escobar, 192 S.W. 256 (Tex.Civ.App., 1917, n. w. h.), the court said: “A judgment nunc pro tunc should not be entered unless some proper and sufficient evidence be adduced to show that the court had in fact pronounced or rendered the judgment which it is the purpose of the nunc pro tunc entry to correctly evidence.” See also Caliva v. Texas Construction Material Co., 380 S.W.2d 641 (Tex.Civ.App., 1964, n. w. h.).

In the absence of a timely filed motion for new trial, the judgment rendered, signed and filed on June 25, 1965, became final after the expiration of thirty days from its date. Rule 329b, par. 5, T.R.C.P.; Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Bradford v. Barnett, 285 S.W.2d 252 (Tex.Civ.App., 1955, wr. ref. n. r. e.). On August 23, 1965, when appellant filed a motion to set aside the first judgment, the trial court had lost jurisdiction to set aside or change the judgment actually rendered on June 25, 1965.

The instant appeal is not taken from the judgment of June 25, 1965. In any event, an appeal from that judgment was not .perfected by appellant because an appeal bond was not timely filed as provided by Rule 356, T.R.C.P., nor was the record timely filed in this court as provided by Rule 386, T.R.C.P.; therefore, we would not have jurisdiction. The notice of appeal contained in the judgment of September 20, 1965, can be applicable only to that order, which we hold to be a nullity. In view of such holding, it is not necessary for us to decide any questions raised by the motion to dismiss on the basis that the order of September 20, 1965, had been properly entered as a nunc pro tunc judgment. Ambassador Oil Corporation v. Robertson, 384 S.W.2d 752 (Tex.Civ.App., 1964, wr. ref. n. r. e., with written opinion in Robertson v. Blackwell Zinc Co., Tex., 390 S.W.2d 472).

For the reasons stated, appellee’s motion to dismiss must be sustained and the appeal dismissed.


author: PER CURIAM.

text:
    In re James R. APPLEWHITE, Petitioner.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    As Modified on Denial of Rehearing May 6, 1966.
    William Loraine Mix, Louisville, for petitioner.
    George B. Ryan, Louisville, for respondent Louisville and Kentucky State Bar Association.
   PER CURIAM.

The applicant, James R. Applewhite, seeks reinstatement as a practicing attorney. He was permanently disbarred in 1957. In re Applewhite, Ky., 297 S.W.2d 910.

The matter of reinstatement was heard before a trial committee of the Kentucky State Bar Association, and, on the basis of numerous findings of fact, it was recommended that the application be denied. This recommendation was confirmed by the Board of Governors of the Bar Association and we are called upon to determine the applicant’s right to reinstatement.

The applicant was approximately 40 years of age when admitted to the Bar and he is now approximately 60 years of age. Extensive proof was taken, which covered a period beginning three or four years before his admission and up to the time of the hearing on the application for reinstatement. Among other things, applicant objects to the evidence of events which took place prior to his disbarment, insisting that the only question involved is whether his conduct since that date has shown him to be of good moral character and a fit and proper person to be entitled to public confidence. While this is generally true, we know of no rule or reason for restricting a thorough examination of the applicant’s prior conduct if it materially contributes to a perspective appraisal of his subseqent conduct. This is particularly true when an attorney has been disbarred for “a scheme and pattern of conduct”, both professional and private, which was the basis of applicant’s disbarment. See In re Rosenberg, 313 Ky. 236, 230 S.W.2d 434, and In re Taylor, Ky., 279 S.W.2d 572.

Some damaging evidence was introduced concerning alleged reprehensible professional conduct on the part of the applicant which took place while the original disbarment proceedings were pending against him. He was not charged with this particular misconduct and contends it should not be considered. However, it does throw further light on the “pattern of conduct” for which applicant was once condemned and is material upon the issue of his claimed rehabilitation.

The applicant did have many witnesses who testified to his good character generally. On the other hand, there was substantial evidence of incidents which reflect upon his reliability since his disbarment. They show indifference toward financial and other obligations. Also significant is applicant’s attitude. He took the position that none of the original charges which resulted in his disbarment were true, that he had never been guilty of misconduct, and that therefore his subsequent conduct should be appraised as though there had been no previous adverse finding against him. This attitude is rather convincing evidence the applicant does not appreciate that a higher character of conduct is required of a disbarred attorney than of an original applicant. It indicates he fails to accept the fact of his conviction of dereliction. It also indicates he recognizes no reason to change the “pattern of conduct” for which he was once condemned upon overwhelming proof. See In re Stump, 272 Ky. 593, 114 S.W.2d 1094. In addition, applicant’s testimony in this proceeding lacks the candor which would demonstrate his appreciation of the high standards demanded by the legal profession.

The burden was on the applicant to establish he had so rehabilitated himself that in spite of his past failings (which we must accept as proved against him), he had become worthy of trust and confidence and would be a credit and not a detriment to the profession of law. This burden is heavy indeed when the former reprehensible conduct consists of a number of transactions exhibiting a basic lack of professional morality. The record falls far short of persuading us that the applicant has, since his disbarment, earned the right to our seal of approval as a qualified member of the Kentucky Bar.

The recommendation of the Board of Governors is accepted and the application for reinstatement is denied.


author: STEWART, Judge.

text:
    AMERICAN INSURANCE COMPANY, Appellant, v. Al HORTON, doing business as Horton Fruit Company, Appellee. LIVERPOOL & LONDON & GLOBE INSURANCE COMPANY, Appellant, v. Al HORTON, doing business as Horton Fruit Company, Appellee. PROVIDENCE WASHINGTON INSURANCE COMPANY, Appellant, v. Al HORTON, doing business as Horton Fruit Company, Appellee.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Armer H. Mahan, Davis & Mahan, Louisville, for appellants.
    William O. Guethlein, Jr., A. J. Dein-doerfer, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Charles F. Wood, Greenebaum, Barnett, Wood & Doll, Louisville, for appellee.
   STEWART, Judge.

American Insurance Company, Liverpool & London & Globe Insurance Company, and Providence Washington Insurance Company each appeals from a judgment dismissing its complaint against A1 Horton, doing business as Horton Fruit Company. A total of $102,763.56 was sought. The cases were considered together and summary judgment in favor of Horton was granted in each case. Appellants contend, among other things, that the proof offered by them creates an inference of negligence sufficient to entitle them to judgment.

On May 12, 1960, there was an explosion on the premises owned by the Louisville Produce Association, Inc., and leased to appellee. The appellants have satisfied the claims of their insureds, including Louisville Produce, and are seeking to enforce subrogation rights against appellee on the theory that appellee was responsible for the explosion.

Appellee, as the name of his firm implies, handles fruit. In so doing he ripens bananas by artificial means. The explosion occurred in the north banana room of the premises occupied by appellee. These banana rooms are constructed for the purpose of curing and ripening bananas. The bananas are exposed to gas in an airtight room in which the temperature is controlled. Ethylene gas is used in the process and can be highly reactive and explosive when mixed with air in certain ratios. There was a heat control and refrigeration unit suspended from the ceiling of the room. In the ceiling there were natural gas lines leading to the heater. Spray nozzles for ejecting a mist of water were also in the room. There was a drain in the room leading into the sewer system.

Andrew Lococo, appellee’s employee, was in charge of the ripening process. He testified that on May 11, 1960, he left the premises but returned about 6 p. m. to receive a shipment of bananas. After he had hung the bananas Lococo set the temperature controls and released two lecture tubes of ethylene gas into the room. He held the tubes until they were empty. The room was then locked. He returned to the premises about 1 a. m. or 2 a. m. He had been sitting in the front office a few minutes when the explosion occurred.

Appellants contend that the circumstances were sufficient to create an inference of negligence by appellee, entitling them to a judgment. To that end they have sought to show that ethylene gas was the cause of the explosion and to exclude natural gas and sewer gas as a cause. The natural gas lines leading to the heater were already constructed when appellee moved to the premises. All of the gas lines, including heaters and meters, were shown to have been under the exclusive control of the Louisville Produce Association, as was the drain for water which was also a part of the original construction of the building. The drain carried the excess moisture from the water sprays and the water used in cleaning the room. The drain was connected with the sewer.

There was evidence that there may have been a natural gas leak in the room by reason of the installation of the heater contrary to the building code ordinance of the City of Louisville. It was also shown that sewer or marsh gas could have entered the room from the drain.

Four witnesses testified thaf late in the afternoon before the explosion they had smelled a strong odor on the premises which smelled like natural gas. Investigators were sent in by the parties to determine the cause of the explosion. These experts were unable to point to a definite cause but none concluded that it was ethylene gas. Three of them decided that it was probably natural gas, while two said no, it was probably sewer gas. Another could not arrive at any definite conclusion as to the cause. In substance no one attributed the explosion to ethylene gas.

Appellants rely on Marlowe Construction Company v. Jacobs, Ky., 302 S.W.2d 612. That case is distinguishable, in that it was an action for damages caused by negligent blasting operations. The construction company was engaged in blasting so there was little doubt as to the cause of the injury.

This case is more like Rollins v. Avey, Ky., 296 S.W.2d 214. There, the plaintiff, whose home was destroyed by an explosion, sued the manufacturer of a gas floor furnace, the wholesaler, the seller, the installer, and others. A directed verdict for the defendants given on the ground that the furnace was not shown to have caused the accident was sustained. The following from Rollins v. Avey is pertinent:

“Plaintiffs would have us apply the doctrine of res ipsa loquitur as a substitute for proof of the instrumentality bringing about the explosion. This would extend the doctrine beyond its permissible scope. The rule creates an inference of negligence arising from an identifiable event. It assumes that the instrumental cause of the accident has been established.
“Here there is no such proof. Plaintiffs’ claims are based on the contention that the instrumental cause of the explosion can be inferred from the installation of the gas furnace and that defendants’ negligence (or breach of warranty) may be inferred from the nature of the occurrence. Plaintiffs do not sustain the burden of proof by the compounding of inferences.”
⅜ * ⅝ ⅜ ⅝ “Since plaintiff failed to prove with any degree of definiteness that the furnace, manufactured, sold and installed by the defendants, was the instrumental cause of the explosion, any inference of negligence as the proximate cause thereof must be based upon conjecture, surmise and guesswork.”

See also McAtee v. Holland Furnace Company, Ky., 252 S.W.2d 427; Rural Natural Gas Company v. Arvin, Ky., 270 S.W.2d 610; Caplinger v. Werner, Ky., 311 S.W.2d 201; Highway Transport Company, Inc. v. Daniel Baker Company, Inc., Ky., 398 S.W.2d 501 (decided October 8, 1965). The suggested basis for distinguishing these cases is not meritorious.

Appellants contend that granting the summary judgments was improper. It is clear in view of the extensive investigation that appellants could not establish that the explosion resulted from appellees’ ethylene gas. In such case the rule is that “summary judgment is proper when it is manifest that the party against whom the judgment is sought could not strengthen his case at a trial and the moving party would be entitled ultimately and inevitably to a directed verdict.” Adkins v. Greyhound Corporation, Ky., 357 S.W.2d 860; Mario’s Pizzeria, Inc. v. Federal Sign and Signal Corp., Ky., 379 S.W.2d 736.

The summary judgments were properly granted.

Judgments affirmed.


author: HILL, Judge.

text:
    W. L. CROWDER, Appellant, v. W. E. STINSON etc., Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellant.
    William G. Fuqua, Russellville, for appel-lee.
   HILL, Judge.

This is an appeal from a $4,600 judgment entered pursuant to a jury verdict in appel-lee’s suit to recover five percent real estate brokers’ commission on the sale of appellant’s 426-acre farm located near Franklin, Kentucky.

Appellant entered into a contract with appellee, a real estate broker, providing that appellee should have the exclusive right to sell the farm in question for three months and thereafter until appellee received a ten-day notice of revocation. Appellee caused the property to be advertised in Tennessee and a number of towns in Kentucky and showed the farm to Gentry Davidson but did not close the trade with him. A short time thereafter, appellant negotiated a sale of the farm to Davidson in the absence of appellee. The latter claimed commission and failing to collect filed this suit, the trial of which, before a jury, resulted in a verdict for appellee.

Appellant now contends the judgment should be reversed on the grounds that the contract was void because (1) it violated the provisions of a regulation of the Kentucky Real Estate Commission against exclusive listing, and (2) he was not furnished a “duplicate original” of the contract.

The judgment must be affirmed without getting to the merits. CR 8.03 provides:

“In pleading to a preceding pleading, a party shall set forth affirmatively * * * illegality * * * and any other matter constituting an avoidance or affirmative defense.” (Emphasis added.)

Appellant’s answer does not affirmatively or at all plead illegality of the contract. It it a general denial of the allegations of the complaint. Cf. Curry v. Stewart, 301 Ky. 645, 192 S.W.2d 739 (1945).

Notwithstanding the procedural pitfall mentioned above, the trial court submitted to the jury appellant’s theory of the case, and it found for appellee. We think appellant has had his day in court and a fair trial.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Bruner ARNETT et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    As Modified on Denial of Rehearing May 6, 1966.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Dept, of Highways, Pikeville, for appellant.
    Earl R. Cooper, Marcus Mann, Salyers-ville, for appellees.
   CLAY, Commissioner.

In this highway condemnation case the jury awarded the landowners $25,000. Appellant’s principal contention is that the valuation testimony was incompetent.

Appellees owned a farm of approximately 200 acres which was bisected by Kentucky Highway 134. For the building of the new highway the Commonwealth took 12 acres through the farm, which left 105 acres on one side and 83 on the other. The new road will deprive appellees of direct access from the part of the farm on which there are improvements to the other part which consists of the best farmland.

There is no real controversy about the before value of this farm. As a matter of fact, the Commonwealth’s only valuation witness fixed the before value at $78,700, which was higher than that fixed by all but one of appellees’ four witnesses, including one of the owners. The Commonwealth also concedes the bottom land had a fair value of $1,000 an acre, which would justify at least a $12,000 difference in before and after value by reason of the taking of 12 acres. Its basic contention is that the landowners’ witnesses fixed an unreasonable after valuation of the land not taken, based upon noncompensable or irrelevant factors.

The Commonwealth contends that appellees’ witnesses put specific price tags on the improvements on the property, such as a house, barns and outbuildings. This was brought out by cross-examination. It is unnecessary for us to decide whether this breakdown of overall valuation was proper under our decisions in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S. W.2d 640; Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249; and Commonwealth, Dept. of Highways v. Wireman, Ky., 388 S.W.2d 606. This evidence related only to the before value of the farm, and as we have above noted, the Commonwealth’s quarrel is only with the after valuations. There was no prejudicial error in the court’s ruling on this testimony.

With respect to after values, the landowners’ witnesses attributed a substantial impairment in the value of 31 acres of bottom land to the fact that direct access to it from the part of the farm on which were the improvements was completely cut off by the new highway. As a result of the taking and the building of a new road, the landowners would be required to take a circuitous route of approximately a mile from the improved part of their land to the other part lying directly across the highway. Appellees’ witnesses testified that the impairment of access from one part of the farm to the other part reduced the value of the bottom land from $1,000 an acre to $300 an acre. Those witnesses admitted that this reduced the value of the affected bottom land 70 percent and the Commonwealth complains that it was improper to put the damages on a percentage basis. We do not understand how a calculation based on the figures given, which shows a percentage impairment, thereby makes the evidence incompetent.

The opinions of appellees’ witnesses were not based upon the loss of access to a highway from the severed bottom land but were based upon the depreciation in the overall value of the farm by reason of its loss of unity. While the bottom land retained its productivity, it substantially lost its utility in relation to the principal part of the farm. At least appellees’ witnesses gave this as a reasonable basis for the 70 percent reduction in the value of the relatively inaccessible bottom land. In Commonwealth, Dept. of Highways v. Burns, et al., Ky., 394 S.W.2d 923, it was said:

“We think it should be made clear that in situations such as here presented, where a farm has been severed into separate parcels, the ‘after’ value should be based solely on what exists after the taking, without regard to what existed before the taking; the question is not how much did the taking do by way of damage to the original farm, but what was the value of the farm before the taking and what is the value of the parcels that remain. The fact that the separate parcels into which the farm has been split cannot feasibly be operated as a single unit has no relevance except as may be given as a value-affecting factor by a witness who testified that the separated parcels would bring less on the market, sold as separate parcels, than they would bring if they could be sold as a single unit.”

While the landowners’ witnesses did not specifically compare unit value with separate-parcel value, a proper inference from their testimony is that the land remaining after the taking would have its best use and value as a single farm. Their testimony was certainly not incompetent because based upon this unit value. It may be observed that the Commonwealth in this case, as in others we have considered recently, failed to cross-examine the landowners’ witnesses concerning possible separate-parcel valuations, and it did not show by its own witnesses that such valuations would aggregate more than the unit valuation which took cognizance of cross-over difficulties. In the absence of some contrary evidence on this question, it may be assumed that a witness, basing his opinion upon the single-unit theory, is in effect testifying that such criterion is the best guide to the highest after value of the segregated lands. The language quoted above from the Burns case should not be so narrowly construed as to require witnesses specifically to compare alternate unit and separate-parcel valuations.

We find no error in the instructions as the case was tried before Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302.

The final contention is that the damages are excessive. They do not so impress us because they are amply supported by competent evidence.

The judgment is affirmed.

MONTGOMERY, J., dissents on the ground that the verdict is excessive.


text:
    SIMMONS BROTHERS PAVING COMPANY, Appellant, v. James C. PRESLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Rehearing Denied May 13, 1966.
    William Lehnig, Louisville, for appellant.
    Strother Kiser, Lexington, for appellees.
   HILL, Judge.

This is an appeal from a judgment affirming an award by the Workmen’s Compensation Board finding appellee, James C. Presley, to be totally and permanently disabled. The single question involved is whether the award is supported by substantial evidence.

After driving a truck for a few weeks for appellant, the appellee, James C. Presley, age 39 a veteran of the Army Air Corps, slipped and struck his back against the iron side of his truck, causing injuries necessitating little less than three months’ treatment. Prior to the injury he was strong and able, but with limited education. On June 27,1963, the date of injury, he was hauling asphalt and was required to assist in loading and unloading. His work history was one of hard manual labor. Some time after his release by the doctor he took a job assisting-in the installation of floor furnaces for subcontractor of Sears Roebuck & Co.

In our quest for evidence of probative value we find the following testimony of Dr. David B. Stephens:

“Q. 22. At any time during his treatment, doctor, by you or up until the time that you released him, did you ever consider him in condition to return to work and resume the type of work that he was doing when he was injured that consisted of extreme strain on the back?
“A. No, sir, I did not.”

Again on February 28, 1964, Dr. Stephens testified as follows:

“Q. S. You have been treating Mr. Presley since what date, Dr. Stevens?
“A. We first saw this patient on July 6th, 1963.”
“Q. 7. Based on your recent examinations, Doctor, what is your opinion as to his ability as of right now, or as of the date of your last examination three days ago, to perform hard labor involving lifting and straining?
“A. I would say that my opinion is unchanged from what I previously stated in regard to him and his ability to perform heavy manual labor.
“Q. 8. That he is unable to do it as of now.?
“A. Yes, sir.
“Q. 9. Doctor, I know that this is asking a whole lot of a doctor to ask him more or less to look into a crystal ball and see what the future holds; but based on your examination and treatment of this man, what would be your best judgment as to the future and this man’s ability in the future to perform hard manual labor involving lifting and straining?
“A. I do not think he will be able to do that type of work in the foreseeable future. It is my opinion that perhaps he will eventually, but I think it will be some time before he will be able to do such activities.
“Q. 10. Just in your judgment would you put some figures on that ‘some time in the future’ as to what you mean by that, some approximate time?
“A. Oh, I would say it will be several years.”

Dr. Stevens also testified appellee had a ten percent impairment to the body as a whole. His testimony as a whole, however, is substantial, and of such probative quality, we think, to meet the test required in our previous opinions to support an award. Cf. E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102 (1960) cited by appellant.

The judgment is affirmed.


author: GREENHILL, Justice. GRIFFIN, Justice

text:
    Harold ELLIS, a Minor by Next Friend, et al., Petitioners, v. John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm, et al., Respondents.
    No. A-10582.
    Supreme Court of Texas.
    March 23, 1966.
    Rehearing Denied May 11, 1966.

      B. R. Reeves, John B. McDonald, Palestine, Helm, Jones & Pletcher, Houston, for petitioners.
    Ramey, Brelsford, Hull & Flock, and Donald Carroll, Tyler, for respondents.
   GREENHILL, Justice.

This is a suit for personal injuries arising out of an accident in which a tractor furnished by defendants turned over on Harold Ellis and seriously disfigured him. Trial was to a jury, resulting in a judgment on the jury verdict for the plaintiffs for $126,000. The Court of Civil Appeals at Tyler held that as a matter of law the defendants had breached no duty to Harold. It reversed the judgment of the trial court and rendered a judgment that plaintiffs take nothing. 385 S.W.2d 261.

The suit was instituted by Harold Ellis through his next friend and by Harold’s father, A. G. Ellis. The defendants were John I. Moore and H. R. Wardlaw who did business as Red Town Farm, and the foreman of Red Town Farm, L. E. Mc-Crary. Moore and Wardlaw lived in West Texas, and the farm was in East Texas. They operated the farm through McCrary. Red Town Farm consisted of some 6400 acres in pasture and cultivation. Part of the land was leased to tenants upon a percentage basis of the crops produced. One such tenant was a Mr. Harper. He in turn employed A. G. Ellis. Ellis, with his family, lived in a house on the leased portion of the land. Part of the tenant’s duties under the lease contract was to keep the land free of Johnson grass. During a summer recess from school, Harold Ellis, a 16-year-old boy, was employed by Harper for 50 cents per hour to clear certain areas of Johnson grass by the use of a tractor which pulled disks behind it.

The testimony established that it was the custom of the various tenants to use the farm machinery of Red Town Farm. Similarly, the employees of Red Town Farm were privileged to use the machinery belonging to the tenants. Moreover the tractor in question, as stated, was used to plow up Johnson grass on the farm, a service which inured also to the benefit of Red Town Farm. The bailment in question therefore was one for the mutual benefit of the bailor and the bailee.

On June 19, 1962, the day before the accident, Harper hired Harold to “disk some turn rows.” The particular land was not in cultivation but adjoined cotton rows. It was part of the land leased by Harper. Early in the morning of that day, Harper and Harold went to the Red Town Farm headquarters to get one of Red Town’s tractors and the disks to be dragged behind the tractor. Neither the foreman McCrary nor anyone else representing Red Town Farm was present when the equipment was withdrawn. It nevertheless was taken with Red Town’s consent as set out above. McCrary said he had nothing to do with the tenants’ land except to see that they did not grow up in Johnson grass.

The tractor had at its rear two hydraulic lifts. One we shall designate as the cylinder lift. It was designed to lift the disks out of the ground when they became clogged with dirt so that the disks could be freed of the mud or dirt. The cylinder lift was so designed that when it was raised, the weightrof the disks and the mud or dirt on them would be distributed onto the wheels of the disking device. With the use of the device, all of the tractor’s wheels remained firmly on the ground. This particular lift, however, was defective and could not be used because its handle was missing. McCrary had known for some time that the cylinder lift was not working.

The tractor also had another lift, separate and apart from the cylinder lift, which we shall call a three-point hitch. It could lift a drawbar at the rear of the tractor which lifted the disks out of the mud or dirt so that the disks could clean themselves, or so that the dirt could be knocked off them.

On June 19, then, Harold got on the tractor and proceeded to disk the land. He testified that he had had very little experience with tractors. He had driven one a few times before and had generally been told how by his father. No one including McCrary had given him any detailed safety instructions.

The soil was flat, river-bottom land. There had been rain, and it was “pretty wet.” McCrary described it as “gumbo-type soil.” As Harold pulled the disks, the soil attached itself to the disks and “balled up.” Harold attempted to use the cylinder lift, but it would not work.

About 10 a. m that morning both Harper and McCrary, at the same time, came to the place where Harold was working. They observed the problem Harold was having. Harold testified that McCrary attempted to repair the cylinder lift. Mc-Crary denied this. In any event, McCrary told Harold that the cylinder lift would not work, and to do the best he could. He offered no further directions or suggestions as to how the mud could be safely removed from the disks. McCrary upon the trial testified that the proper way to do it was to disconnect the disks, bring the tractor back behind them, and then pull the disks backward, away from the mud. But he did not tell Harold this.

There is no evidence that Harold told McCrary that the front wheels of the tractor had come off the ground when he used the three-point hitch to clean the disks. McCrary and another of defendants’ witnesses testified that if the front end of the tractor comes off the ground or “rears up,” the proper thing to do is to disengage the clutch and lower the throttle. McCrary did not so inform Harold.

Two farmers called by defendants testified that the front end of the tractor was light, and if the tractor got overloaded at the rear (as this one did), the front end would come off the ground. McCrary testified that the way to go about upsetting the tractor was to put excessive weight on the rear of it or overload it. If the back is overloaded, he testified that “it will come up and over.”

According to Harold’s testimony, as he was disking the land on June 19, it became necessary for him to lift the disks some ten times. On two of the occasions, the front of the tractor came off the ground; and he got the front to descend by releasing the clutch. He said that it did not worry him when the front wheels came off the ground because ic had never occurred to him that the tractor might turn over. He had never heard of a tractor “upsetting on a fellow before.” When he went home that evening, he did not mention the fact that the front wheels had come off the ground.

Harold again began work on June 20. On one occasion that morning, the tractor “reared up” on him without incident as he cleaned the disks. On the second occasion about 11:30 a. m., however, as he was looking backward at the balled-up disks, he raised the three-point hitch to clean them. He testified that he was then in a narrow ditch. The front came off the ground, and the tractor turned over on him. Harold testified that the accident happened so quickly that he could not manipulate the clutch or throttle. He was pinned under the tractor and knocked unconscious. Hot crankcase oil went over his face and body causing, among other things, serious disfigurement to his face.

McCrary testified that he did not know that Harold was using the three-point hitch, though he knew that was one of two ways of lifting the disks, the other way being out of repair. He said Harold did not tell him about the tractor “rearing up” on him. He testified that the proper function of the three-point hitch was to lift the disks when the tractor was being moved from one place to another.

The jury made extensive findings. Grouped here for the sake of convenience, they were:

1. McCrary permitted Harold to use the tractor. In so doing, he was acting within the scope of his employment. He permitted Harold to use the tractor when the cylinder lift was in a known defective condition, which constituted negligence and a proximate cause of Harold’s injury.

2. The defendants knew, or should have known in the exercise of ordinary care, that the defective condition of the cylinder lift could in reasonable probability cause the tractor to upset.

3. The failure to so warn Harold was negligence and a proximate cause.

4. The defendants failed to give Harold proper instructions. This was negligence and a proximate cause.

5. Harold did not permit the disks to become overloaded. [The jury did not answer the supporting negligence or proximate cause issues.]

6. Harold did not permit an excessive amount of dirt to build up in front of the disk. [Again, the supporting negligence and proximate cause issues were not answered.]

7. Harold’s attempting to raise the disk while the tractor was in motion was not negligence.

8. Harold did not fail to keep a proper lookout.

9. His failure to engage the clutch was not negligence, and his failure to close the throttle was not negligence.

10. It was not an unavoidable accident.

11. Harold’s father was acquitted of negligent conduct.

Then there were a number of issues which could be placed under the general heading of assumed risk:

12. The use of the tractor for disking operations under the circumstances created a danger to Harold; and the condition of the tractor was such as to [also] create a danger to him.

13. The condition of the tractor was not as open and obvious to Harold as it was to McCrary.

14. Harold knew that the cylinder lift was not in operating condition, but

15. He did not fully realize and appreciate the nature and extent of such danger.

16. Harold did not voluntarily expose himself to the danger.

It is clear from the special issues set out that the defendants were found to have been negligent in a number of respects; and that although many issues of contributory negligence were given, the jury acquitted Harold of contributory negligence. The Court of Civil Appeals reversed the judgment in plaintiff’s favor, however, under principles of assumed risk: that the defendants owed the plaintiff no duty. Since they owed Harold no duty, they breached no duty to him, and hence were not liable.

This Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (1963), recognized that the assumed risk doctrine is a relatively harsh one, and the Court indicated that it felt required to keep it within justifiable limits. 371 S.W.2d 368 at 380. In our opinion, the Court of Civil Appeals in this case erroneously extended the doctrine. Its holding is that it is enough to bar the plaintiff from recovery if the plaintiff [Harold] knew of the defective condition. Its holding, in substance, is that since Harold knew that the tractor was in a defective condition (the cylinder lift would not function), he could not recover. It was the clear holding of this Court in McKee v. Patterson, 153 Tex. 517, 217 S.W.2d 391 (1954), in Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959), as well as in the Halepeska case that the knowledge of the defect is not enough. There must he knowledge of the danger involved and the appreciation of the danger. This Court pointed out in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), that there must be knowledge' and appreciation of the particular danger involved so that the plaintiff proceeds to encounter the risk as the result of an intelligent choice. The jury found that Harold did not fully realize and appreciate' the danger. The danger was not one which was so open and obvious that we would charge Harold with knowledge and appreciation of it.

Where the assumed risk doctrines of “no duty” or volenti are invoked, the duty of the defendant is to exercise ordinary care to make reasonably safe or to warn. There are jury findings that defendants did not exercise ordinary care to make safe. The function of the warning is to give the plaintiff knowledge and an opportunity to appreciate the danger. He then can decide whether to confront the danger. The jury found no warning or instruction was given here.

However, the defendants argue, in effect, that there is no evidence of foreseeability to support the negligence or proximate cause issues found against them upon which their duty rests. While they were under a duty to exercise ordinary care against dangers of which they knew, or dangers of' which they should have known, it is contended that there is no evidence to show that they should have, in the exercise of ordinary care, foreseen the danger which caused the injury to Harold. They point out that the three-point hitch used by Harold was in good order; that it was the use [or misuse] of that lift which caused the injury, and not the defective cylinder lift which Harold knew to be defective and which he was not using. This boils down-to an assertion that as a matter of law, the defendants could not foresee that Harold would attempt to use the three-point hitch to lift the disks; and that even if he did, he would fail to release the clutch if the front end came off the ground. We disagree, and hold that there was evidence to raise issues for the jury.

McCrary testified that there were only two ways to remove the mud or dirt from the disks. One was by the cylinder lift which was not working and the other was the three-point hitch.

McCrary knew that if the three-point hitch were used, the weight would be placed on the back of the tractor. The front end of the tractor was light. While he testified that the tractor would not upset unless it became overbalanced, he testified that the best way to upset the tractor would be to overload the back of it. Under those conditions, “it will come up and over.” On June 19, McCrary came upon Harold while Harold was having his problem with the disks and the balling-up of the mud. He knew the cylinder lift was not working. He knew Harold would continue to try to do the work; in fact he told Harold to go ahead and do the best he could. He knew Harold’s approximate age because Harold had been in his house and had associated with his children. He referred to him as “a boy,” and guessed his age at 17. He knew he was still in public school. Mc-Crary’s attitude, according to his testimony, was that he did not have to tell Harold anything because Harold was not working for him or on his [Red Town’s] land. We cannot say as a matter of law that he could not foresee that Harold would attempt to use the other method of raising the disks, — the use of the three-point hitch. And because of Harold’s youth, inexperience, and lack of instructions, we cannot say as a matter of law that McCrary could not foresee that if Harold did use the three-point hitch, he might not skillfully apply the clutch and throttle when the tractor’s front wheels left the ground.

The respondents, defendants below, assert that the bailment was gratuitous and that it is wrong to here use the same tests as in an assumed risk (“no duty” and volenti) case involving an occupier and an invitee, as those rules were stated in McKee v. Patterson, Halepeska, and similar cases. We have already indicated our disagreement with the assertion that there was a gratuitous bailment. We regard it as one for the mutual benefit of bailor and bailee. This Court in Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953), judged the duty of the bailor along the occupier-invitee lines. This Court there said, “The duty of the supplier is likened to that of an occupier of land to an invitee.” 262 S.W.2d at 102. The “should have known” test was approved as to the supplier. While that was a bailment-for-hire case rather than one for mutual benefit, we think the same rules should be applicable. Generally speaking, cases should be determined on the basis of negligence, and contributory negligence. Our disposition is not to extend the doctrine of assumed risk so as to excuse negligent conduct on the part of the defendant. As above kw dicated, it is a harsh doctrine, and we aré not disposed to relax the rules set down for the escape from liability under it. Our holding is that with a bailment for the mutual benefit of the parties, if the supplier seeks to avoid liability under the doctrine of assumed risk (no duty), the rules set down in McKee v. Patterson, Dee v. Parish, and Halepeska are applicable.

We are of the opinion that the Court of Civil Appeals erred in reversing the judgment of the trial court and rendering judgment for the respondents, defendants below. The defendants below were appellants in the Court of Civil Appeals. In that court they had 79 points of error. The Court of Civil Appeals expressly stated in its opinion that it reached only the first 9 points and found it unnecessary to pass upon the others. Included within this mass of points not passed upon are assignments that most of the answers to the special issues were against the great weight and preponderance of the evidence and were supported by insufficient evidence. There is also a point that the amount of damages awarded was excessive. The judgment of the Court of Civil Appeals is therefore reversed, and the cause is remanded to that court so that it may pass upon the points of error which it did not consider.

GRIFFIN, Justice

(dissenting).

I cannot agree with the majority opinion upholding liability of respondents herein for furnishing a tractor to plaintiff Harold Ellis without a properly-working cylinder lift. The record does not show such a lift is, or ought to be, standard equipment on a farm tractor. The record does not show that Mr. McCrary, respondents’ foreman, had the slightest knowledge that Harold Ellis was using this tractor at the time of the injury, so as to cause the front wheels to raise off the ground. Harold grew up on a farm and around tractors and had driven tractors prior to this time, and he had pulled discs with tractors prior to this occasion. Tractors, when properly used or operated, do not “rear up” and turn over. McCrary had no reason to anticipate that this tractor would “rear up” or turn over.

There is no question but that Harold knew the cylinder disc on this tractor was not working as early as about 10:00 a. m. on the morning he began to use the tractor} and being the day prior to his being injured. Harold did not tell either Mr. Mc-Crary, Mr. Harper, his employer, or anyone else that the tractor was "rearing up” as he operated it. This case stands in the same position as if the tractor had never been equipped with a cylinder lift.

The rule of liability of a furnisher of a chattel to another is stated in the Restatement of the Law of Torts, Vol. 2, 2d Ed., 1965, as follows:

"§ 388. Chattel Known to be Dangerous for Intended use
“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
"(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
“(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

Under comment (f) to § 388, it is said that liability of a supplier of a chattel exists “if, but only if, there also exists the other conditions necessary to liability."

Under the comment to clause (b) of § 388, the Restatement says:

“One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him, or of facts which to his knowledge make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved. It is not necessary for the supplier to inform those for whose use the chattel is supplied of a condition which a mere, casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made. * * * ” (emphasis added.)

See also: Lackey v. Perry, 366 S.W.2d 91, 94-95 (Tex.Civ.App., 1963) n. w. h.; Nesmith v. Magnolia Petroleum Co., 82 S.W.2d 721 (Tex.Civ.App., 1935) n. w. h.; 131 A.L.R. 845, 853; 8 Am.Jur.2d § 154, p. 1047 ; 8 C.J.S. Bailments § 40, p. 479.

The record shows without dispute that prior to selecting this particular tractor from the Red Town machinery park, Mr. Harper — the bailee— knew that the cylinder lift would not work. Harold Ellis discovered this fact prior to 10:00 o’clock on the morning of June 19, 1962 — the day the tractor was borrowed. On June 19th and prior to the occasion when Harold was injured about 11:30 a. m. on June 20, 1962, the disc plow on nine or ten occasions had “balled up” or pushed up huge quantities of soil immediately in front of the disc so that the plow no longer was functioning and would not cut into the ground. Harold Ellis testified that on such occasions he would use the drawbar lift — the only lift that was working — and raise the tractor drawbar and keep driving until the disc had passed over the pile of soil in front of the disc. Then he would release the drawbar lift and the plow would again take the soil and start cutting as it was supposed to do. He further testified that on three of these occasions and prior to the time of his injury, when he applied the drawbar lift and was driving over the pile of soil, the front wheels of the tractor just seemed to float off the ground about a foot or a foot and a half in the air until the disc had passed over the pile of dirt and then the wheels would settle down. He testified that he would drive five, six or seven yards with the front wheels in the air. As far as this record shows, these facts were not known to Mr. McCrary and Harold did not tell him about the front wheels leaving the ground when he drove the tractor over the piles of dirt.

The record also shows without dispute that at the time the tractor was taken by Mr. Harper, Mr. McCrary was not present and so could not have given instructions as to its use to anyone — including Harold Ellis. Mr. McCrary testified that on the morning of June 19th he did not give instructions to Harold about the fact that the cylinder lift was not operating in that the lever to the cylinder lift was broken. Harold knew this fact and therefore, under clause (b) of § 388 of the Restatement, Mr. McCrary was under no duty to tell Harold of the existence of a defect which Harold already knew to exist. Furthermore, under the comment to clause (b) quoted above, Mr. McCrary was only under a duty to inform Harold of a dangerous character of the tractor “in so far as it is known to him.” There is nothing in the record which establishes that McCrary was aware of the fact that Harold was operating the tractor in such a manner that the front wheels of the tractor would raise off of the ground.

Under the rule of law quoted from § 388 of the Restatement of Torts, and the other authorities cited, I would hold that there was no liability attached to either Mr. Mc-Crary or to Red Town as the bailor of this tractor. Mr. McCrary breached no duty owing to Harold by his failure to warn him of the existence of a condition known to Harold. Neither is there any evidence in this record to support a finding that it could reasonably have been foreseen that the use of a tractor without a cylinder lift would cause injury to one operating such a tractor. The majority opinon herein will require all farm tractors used hereafter to be equipped with properly working cylinder lift, lest the tractor overturn as the result of its improper use and operation by a farm hand.

I would affirm the judgment of the Court of Civil Appeals.

HAMILTON and POPE, JJ., join in this dissent.

      . The jury also answered “we do not” to an issue inquiring whether Harold should, have realized and appreciated the danger. This case was submitted before the publication of the Salepeslca opinion, infra.

      . McCrary’s testimony was as follows:
      “Q. And you also knew at that time there were only two ways to remove the disk from the earth. One was by the use that we’ve already talked about.
      “A. Yes.
      “Q. Which was not in proper working order, right?
      “A. Yes.
      “Q. The other was, to use the, I believe counsel for the defense has called it a three-point hitch.
      “A. Yes.”