author: COLEMAN,- Justice.

text:
    Mrs. Josetta I. HOLEMAN, a feme sole, Appellant, v. The GREYHOUND CORPORATION, Appellee.
    No. 14669.
    Court of Civil Appeals of Texas. Houston.
    Nov. 18, 1965.
    Rehearing Denied Dec. 9, 1965.

      James C. Brady, W. Jiles Roberts, Houston, for appellant.
    Robert J. Malinak, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellee.
   COLEMAN,- Justice.

This is a suit to recover damages for personal injuries sustained by the appellant while a passenger on a motor bus owned by appellee enroute from Houston, Texas to Tulsa, Oklahoma. The injuries were received by appellant when baggage fell from an overhead luggage rack onto her neck and back. At the conclusion of appellant’s testimony the trial court withdrew the case from the jury and rendered judgment for appellee.

It is appellant’s contention that there was sufficient evidence to require that the case be submitted to the jury either on the theory that appellee was negligent in (1) failing to warn plaintiff that the baggage (canned goods and other grocery items) was not properly stowed; (2) failing to stow the baggage properly so as to prevent the same falling onto or against her in violation of a regulation issued by the Interstate Commerce Commission of the United States of America [49 C.F.R. § 193.9(d)], reading: “All baggage, freight, or express carried in any bus shall be so loaded as not to interfere with the free and ready entering or leaving such bus, and shall be so stowed as to prevent falling onto or against any passenger.”; (3) failing to provide a reasonably safe bus for plaintiff to ride; or, in the alternative, under the doctrine of res ipsa loquitur.

Since this case was withdrawn from the jury, we must view the facts, and such inferences as may reasonably be drawn therefrom, in the light most favorable to the plaintiff, and we must disregard conflicts in the evidence and unfavorable evidence which a jury could properly refuse to accept. It is our duty to determine whether there is evidence raising issues of fact. Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616.

Appellant was a fare paying passenger in interstate commerce. She boarded the bus in Houston, Texas, and finding the luggage rack filled, placed her overnight bag under her seat. She did not notice any improperly stowed luggage at that time or at any time during the trip prior to the accident. Some nuns boarded the bus, probably at Waco, Texas, and placed some sort of parcel in the baggage rack. Sometime thereafter, but not less than one hour, and probably after a stopover at Dallas, Texas, some cans of fruit juice, and a box containing other grocery items, including eggs, fell and hit appellant, who was leaning forward while resting, on the neck and back. Appellant did not report the incident at the time, but did complain of pain to a fellow passenger. The nuns cleaned up the mess made by broken eggs, put the other items back in the box and put the box under their seat. When they left the bus, they took the box with them.

There is no testimony that anyone noticed any parcels improperly stowed in the luggage rack prior to the accident. There is testimony that the rack was the kind usually found in buses. The bus driver testified that items such as canned fruit juice should be stowed in the luggage compartment under the bus. There is no testimony that the driver saw the box of groceries, assisted in placing it in the rack, or that the box was open when taken aboard the bus or at the time of the accident. The box was about the size of appellant’s overnight case, being about 19" by 12" by 9" in dimensions. There was no unusual movement or motion of the bus immediately prior to the accident. Aside from medical evidence only appellant and one of her fellow-passengers testified. Portions of the bus driver’s deposition were read into evidence, and the trial court was requested to take judicial notice of the I.C.C. regulation.

There is no evidence that the driver had actual knowledge of the contents of the box or of the fact that it was improperly stowed, if it was. Before appellee could be found guilty of negligence in failing to warn appellant that the box was improperly stowed or in failing to provide a reasonably safe bus, the driver must have had actual knowledge of the danger or must have been charged with knowledge of facts from which danger reasonably could have been anticipated.

The Supreme Court of Texas set out certain principles of law applicable to this case in Airline Motor Coaches v. Caver, 148 Tex. 521, 226 S.W.2d 830. In the opinion Justice Garwood said that, within reasonable limits, a passenger is entitled to bring luggage or packages with him into a motor bus, and that there was no duty on the carrier to open boxes or sacks to examine the contents, but he said that negligence may arise where the luggage somehow comes to create a dangerous situation of which the carrier’s agents knew or would have known if they had fulfilled their duty of properly inspecting or policing the vehicle.

It is also the rule in Texas that public transportation companies are not insurers of the safety of their passengers, but they are required to exercise such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances. International & G. N. Ry. Co. v. Halloren, 53 Tex. 46; Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Fuller v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 331 S.W.2d 455, ref., n. r. e.

Applying the meager evidence in this record to the specific allegations of negligence found in appellant’s petition with these settled principles of law in mind, we find no evidence that appellee failed to provide a reasonably safe bus. The only testimony bearing on this question is that of the bus driver who stated that he did not know whether the rubber line, installed to prevent luggage from falling out of the baggage rack, was loose or not.

Appellant alleged that appellee was negligent in failing to warn her that the baggage or grocery items above her were not properly stowed. There is no evidence that the cardboard box containing the groceries was open other than the fact that the cans fell before the box did. While an inference might be drawn that the box was not securely fastened, there is no evidence that there was no lid. A careful inspection of the baggage in the luggage rack would not have revealed, necessarily, the nature of the contents of the box since there is no duty on appellee to open containers. Airline Motor Coaches v. Caver, supra. The duty to warn would arise only if a dangerous condition existed, and was known to appel-lee, or if it could have been discovered by appellee in making such inspections during the course of the trip as would have been made by very cautious, prudent, and competent persons under similar circumstances.

There is testimony that during the trip passengers were getting on and off of the bus. The luggage rack was full when the bus left Houston. The bus driver would be charged with knowledge that luggage and baggage in the rack would be disturbed from time to time and a corresponding duty to inspect for dangerous conditions developing during the trip might reasonably be placed on him.

While ordinarily no inference of negligence arises from the fact that an accident happens, the fact that cans fell from a box in the luggage rack, and that soon thereafter the box fell, is some evidence from which an inference that the box was not securely stowed might be drawn. This fact together with testimony that no unusual movement of the bus preceded the incident, and that the luggage rack was of adequate size to accommodate the box and was equipped with a line to prevent such packages from falling, was sufficient to raise a question of fact as to whether or not the box was improperly stowed immediately prior to the accident.

The question then arises as to whether this condition existed for such length of time that it should have been known to the driver of the bus. The testimony is to the effect that the box was placed in the rack at least one hour before it fell. The bus stopped in Dallas and passengers got on and off there. There is no testimony that anyone realized that it was not placed in a safe position at any time prior to the time it fell. There is no testimony concerning the time that passed after the bus left Dallas and before the box fell. There is no testimony that passengers did, or did not, get up while the bus was in motion and disturb or rearrange the articles previously placed in the luggage rack. With the record in this state, it would be pure speculation to attempt to determine whether the box had been insecurely stowed for any particular length of time. There is no evidence to require that an issue be submitted on constructive notice of the dangerous condition, if any, existing immediately prior to the incident of which complaint is made. Therefore, appellee was under no duty to warn appellant that the baggage above her was improperly stowed.

Finally, appellant pled that appellee had a non-delegable duty to so stow the baggage, luggage and parcels in the rack that they would not fall onto or against a passenger because of the I.C.C. regulation previously quoted.

In Marshall v. Isthmian Lines, Inc., U. S. Ct. of App., Sth Cir., 334 F.2d 131, the Court said: “The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Prosser, Torts § 34, at 161 (2d ed. 1955) ; Restatement, Torts § 286 (1934).” There is evidence raising an issue of fact as to a violation of this regulation, designed to protect passengers against the kind of harm that occurred here. Marshall v. Isthmian Lines, Inc., supra; Provenza v. American Export Lines, Inc., U. S. Court of Appeals, 4th Cir., 324 F.2d 660.

In the last case cited above the Court said:

"It follows, of course, that if the jury should find that the stevedore had violated the regulations such conduct could also constitute negligence. If in turn this negligent conduct of the stevedore were known, or by the exercise of reasonable care should have been known to the shipowner, and such negligence of the shipowner was a proximate cause of the plaintiff’s injury, then he too would be liable to the plaintiff on the additional grounds of negligence.”

In Montgomery v. Virginia Stage Lines, U. S. Court of Appeals, 89 U.S.App.D.C. 213, 191 F.2d 770, the regulation involved in this suit was discussed, and in the course of the opinion the Court said:

“The regulations were not called to the attention of the court. But the requested instructions themselves contain the substance of the regulations. That the particular regulation stating the duty was not invoked or introduced in evidence did not relieve the court of the obligation to instruct, on request, as to the duty which existed. Lilly v. Grand Trunk R. Co., 1943, 317 U.S. 481, 488-489, 63 S.Ct. 347, 87 L.Ed. 411. General instructions on negligence and proximate cause became insufficient in the face of requests that the court be more specific on an important phase of defendant’s obligation to passengers for the safe stowage of baggage, since the alleged injuries resulted from the fall of baggage.

«* * *

“Though it be assumed plaintiff was herself negligent in placing the bag in the rack, nevertheless she was entitled upon request to a charge that if this occurred with knowledge of the driver and he had ample opportunity thereafter to correct the situation but failed to do so (compare Williams v. New Jersey-New York Transit Co., 2 Cir., 1940, 113 F.2d 649; Merritt v. Interstate Transit Lines, 8 Cir., 1948, 171 F.2d 605), they might find there was negligence on the part of the defendant and that, if this negligence was the proximate cause of the accident, she should recover if injury resulted.”

This regulation was also considered in Ninni v. Pennsylvania Greyhound Lines, D.C., 97 F.Supp. 357, where the Court said:

“These requirements must be given a reasonable interpretation in the light of the situation presented, and where, as here, the bus driver is necessarily absent from a parked bus for a few minutes, the bus company is not required to keep up a continuous inspection of the bus and of the actions of normal passengers to insure that passengers do not momentarily place luggage in the aisle. The bus driver must have a reasonable time and opportunity to see that baggage is so loaded as not to interfere with the free and ready entering or leaving of such bus. In this case, the driver was necessarily absent and had neither reasonable time or reasonable opportunity to clear the aisle between the time a fellow passenger deposited his suitcase in the aisle and the time when plaintiff stumbled over it seconds later.”

In Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, the Court said:

“And even while accepting a statutory standard of negligence in lieu of that of the ordinarily prudent man, we still retain the test of foreseeability of harm before liability is imposed under the doctrine of negligence per se. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587.

<( * ‡ *

“We may perhaps safely say that legal liability will not attach to an act or omission unless the alleged wrongdoer could have reasonably anticipated probable harm from his conduct.”

Even though there should be in this case evidence raising issues which could establish that appellee was guilty of negligence per se, before appellee can be held in damages proof must be produced sufficient to raise an issue of fact as to whether such negligence is a proximate cause of the injury sustained. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587.

There is no evidence in this case that appellee knew of the dangerous condition or had a reasonable time in which to discover and remedy the situation. Appellee, therefore, could not have reasonably anticipated or foreseen that harm'might befall appellant by reason of anything which it did or failed to do. There is no basis in the evidence for an issue on proximate cause.

The doctrine of res ipsa loquitur was raised by an alternative pleading. Before that doctrine can be the basis for liability the evidence must show that the instrumentality causing the injury was in the exclusive control of the defendant. No such control was exercised by appellee over the luggage of its passengers. Welliver v. Lone Star Gas Co., Tex.Civ.App., 260 S.W.2d 70, writ ref.; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.

Decisions from other jurisdictions have held res ipsa loquitur inapplicable in similar cases. Talbott v. Chicago & Northwestern Railway Co. (8th Cir. 1957), 243 F.2d 322, 68 A.L.R.2d 661; Merritt v. Interstate Transit Line (8th Cir. 1948), 171 F.2d 605; Creahan v. Pennsylvania R. Co. (1936), 123 Pa.Super. 268, 187 A. 51; Stimson v. Milwaukee, L. S. & W. Ry. Co., (1890) 75 Wis. 381, 44 N.W. 748.

The judgment is affirmed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Alfonso N. BENAVIDES, Appellant, v. Martin GONZALEZ et al., Appellees.
    No. 14420.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1965.
    Rehearing Denied Dec. 8, 1965.

      Emilio Davila, Laredo, for appellant.
    Philip A. Kazen, Nat B. King, Laredo, for appellees.
   BARROW, Justice.

This is a summary judgment appeal. Appellant brought this suit to recover for damages allegedly sustained to his land when a reservoir, located on adjoining property, broke and discharged a large body of water upon his land. A motion for summary judgment, supported by affidavits, was filed on behalf of the defendants and, after a hearing on same, a take-nothing judgment was entered.

Although this appeal was perfected as to both defendants, appellant now concedes that the judgment was properly entered as to Martin Gonzalez, in that under the un-contradicted affidavits Martin owned no interest in either the land or the reservoir. Appellant asserts, however, that the court erred in sustaining the motion of Cruz Gonzalez, who admitted ownership of the dam, impoundment of the water, a flood and overflow of the water.

Cruz Gonzalez owned a tract of land which adjoined appellant’s land. The Gonzalez land was used for grazing and he constructed a reservoir to water the cattle. Appellant alleged that by reason of some defect in the reservoir, it broke away, discharging an unusually large body of water which damaged appellant’s land and destroyed twenty-five hundred feet of fence line.

Cruz Gonzalez filed his motion for summary judgment wherein he urged that the reservoir was constructed to contain all the water which could be reasonably anticipated, but on the occasion in question there was an unprecedented rainfall which filled and overflowed the reservoir as well as the entire watershed. He asserted that appellant’s land was therefore damaged by an Act of God. Six affidavits were filed in support of this motion. In addition to Cruz’s own affidavit, there were affidavits of five other persons who were familiar with the rainfall on the occasion when the flooding conditions occurred.

From this evidence it is seen that appellant’s and Gonzalez’s lands are located in the watershed of the Santa Isabel Creek and its tributary, the Galvan Creek. These creeks, which originate about twenty miles to the north of appellee’s land, ordinarily have little or no water in them. The natural flow of the surface water is to the south, that is, from Gonzalez’s land toward that of appellant. On the night of September 15, 1964, a torrential rain fell all over the watershed of these creeks and resulted in flooding conditions in same. On Gonzalez’s land the water was four feet deep over a width of a mile, and the water was of such force as to move a house two hundred feet. Witnesses, who had been familiar with this semi-arid area for over thirty years, swore that they had never seen a rain as heavy as this one. The normal annual rainfall for this area is eighteen to twenty inches, yet over twelve inches fell on this occasion during a three-day period. There was testimony that over forty-five tanks in this watershed burst as a result of these floodwaters.

Cruz Gonzalez established by these affidavits from disinterested witnesses that the overflow from his reservoir was caused by unprecedented rainfall rather than a defect in construction of his tank. Appellant filed no affidavits opposing said motion. He did not offer any testimony which contradicted these affidavits relative to the unprecedented rainfall or relative to any defect in appellee’s reservoir.

Appellant urges on this appeal that ap-pellees’ affidavits raise fact issues that Cruz Gonzalez violated the provisions of Art. 7589a, Vernon’s Ann.Civ.Stats. This article provides in effect that it shall be unlawful for any person to divert the natural flow of surface waters in this State or to impound such waters in such manner as to damage the property of another by overflow of such waters so diverted or impounded. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451; Red Lake Fishing & Hunting Club v. Burleson, Tex.Civ.App., 219 S.W.2d 115, wr. ref.

Although it has been held that negligence is not an essential element of a suit for damages caused by such unlawful diverting or impounding of surface waters, it must be shown that such unlawful act caused damages to the owner which would not have resulted but for such act. Roby v. Hawthorne, Tex.Civ.App., 77 S.W.2d 923, wr. dism. This case further held that unprecedented rainfall could be shown to be the cause rather than the unlawful diversion. See also Magnolia Petroleum Co. v. Johnson, Tex.Civ.App., 176 S.W.2d 774, no wr. hist. Unprecedented rainfall or Act of God is uniformly recognized as a good defense under statutes of other States which are similar to Art. 7589a, supra. 93 C.J.S. Waters § 153; 56 Am. Jur., Waters, § 167; Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059 (1925).

Under the uncontradicted affidavits filed by appellees, the damage asserted by appellant was shown to have been the result of flooding conditions brought about by an unprecedented rainfall in the watershed of the Santa Isabel Creek and its tributary. This established a valid defense to appellant’s claim for damages by reason of the construction of a reservoir on Cruz Gonzalez’s land. The trial court properly granted summary judgment for Cruz Gonzalez.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    C. T. MAULDIN, Individually, and as Surviving Partner of M. & W. Hog Ranch, Appellant, v. John S. SPARKS et al., d/b/a S. & S. Hog Farm, Appellees.
    No. 16668.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1965.

      Parkhill, Watson & Grantham, and Weldon Parkhill, Grand Prairie, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and Sloan B. Blair, Fort Worth, for appellees.
   LANGDON, Justice.

This is a suit for rescission of a contract and to recover money paid pursuant to its terms. The contract was for the sale of hogs and all equipment, feed, supplies, ranch land and improvements thereon used in the operation of the business, including the assignment of a Government contract for the collection of garbage. Trial was to a jury. It found that plaintiffs had waived their rights to recover any money paid to defendant. The Court, disregarding the jury finding as to waiver, denied the defendant’s motion for judgment on the verdict and sustained the plaintiffs’ motion for judgment non obstante veredicto and entered judgment for the plaintiffs in the sum of $12,356.50, based upon jury findings.

We affirm.

The nature of defendant’s business covered by the contract in question was the buying, feeding and selling of hogs. One of the most valuable assets of the business was a garbage pick-up contract the defendant had with the Amarillo Air Force base located near by, under which he received $750.00 per month and was permitted to feed the garbage to his hogs. In our opinion the status of this Government contract and the ability of the defendant to assign it is the hub around which this entire transaction revolved from its inception. While this question of assignment was being resolved the business had to be operated. It could not be handled piecemeal. The garbage had to be collected, the hogs fed, cared for and sold and additional hogs purchased in order to maintain the operation.

The provisions of the contract pertinent to this appeal are essentially as follows: Upon its execution on December 18, 1961, the plaintiffs were to deposit $10,000 in escrow and immediately take possession of and start operating the hog ranch until the consummation or termination of the contract.

On January 10, 1962, the plaintiffs were to release the $10,000 in escrow and pay an additional sum of $22,121.50 and receive clear title to all the livestock on the ranch. The plaintiffs complied with the above provisions, which enabled them to fully operate the business including sale of livestock which they could not have done had a lien been retained on the hogs. Under the contract plaintiffs were entitled to profits pending its consummation or termination.

Paragraph one of the contract following the preamble provided: “In the event that for any reason the said contract with the United States Government can not be assigned, purchasers may at their option cancel this contract and receive back all moneys theretofore paid by them.” The contract further required plaintiffs to pay an additional $30,000 in installments of $750.00 per month beginning February 10, 1962.

It is undisputed that on March 2, 1962, after the execution of the contract the United States refused to permit the assignment of the garbage contract and thereafter cancelled it.

At this point the plaintiffs demanded the return of their money theretofore paid and tendered to defendant the entire business of which they had taken possession. It was impossible for plaintiffs to restore all the hogs in kind because some had been sold by them in accordance with their rights under the contract. Plaintiffs offered to credit the defendant in the amount of the fair market value of the hogs — determined as of the time the plaintiffs were entitled to rescission in early March, 1962. The jury found that the fair market value of such hogs was $22,015.00, which deducted from $34,371.50 (This amount included $22,121.-50, $10,000.00 escrow and three $750.00 payments.) paid to defendant by the plaintiffs, formed the basis of the judgment for the latter in the sum of $12,356.50. The sufficiency of the evidence in support of the jury finding as to value is not challenged by the defendant.

Plaintiffs in their suit to rescind made no effort to obligate the defendant for payment of any losses or liabilities. They had purchased a going business in its entirety. In line with their rights under the contract they sought to return the business in its entirety in so far as it was possible to do so considering the nature of the business and the necessity to intermingle the original hogs with those later purchased.

The defendant contends that the contract was to be consummated on January 10, 1962, and that the plaintiffs waived their right to rescind by releasing the $10,000.00 escrow money and payment of the $22,015.00. In our opinion the plaintiffs had no option whatever, as of January 10, 1962, except to pay the additional money or lose their $10,-000.00 escrow deposit.

Plaintiffs had paid no money to defendant until January 10, 1962. The provision in paragraph one, which entitled plaintiffs to “receive back all moneys theretofore paid by them” in event the garbage contract could not be assigned, necessarily referred to a time after which the plaintiffs had paid money to the defendant. On January 10, 1962, the Government had made no decision on assignment of the contract. On that date the plaintiffs had no right to cancel or rescind and thus could not have waived a right which was not at that time available to them.

In our opinion this payment of $32,121.50 did not constitute consummation but merely marked the point in time at which plaintiffs would receive title to the livestock and thus be enabled to fully operate the business by not only buying and feeding but to sell. In addition to the livestock, plaintiffs were to receive the land, the equipment and assignment of the Government contract. It is impossible to allocate the amount of consideration for any particular asset.

In support of the finding of waiver the defendant contends that (1) the plaintiffs knew the Government could cancel the garbage contract, and (2) plaintiffs on January 10, 1962, were aware that the Government had not assigned the garbage pick-up contract, but were “willing to pay off and get started”.

The right of the Government to cancel the garbage contract had nothing to do with the defendant’s assignment of same and Government approval thereof. Further, on January 10, 1962, the plaintiffs did not know that the Government would not approve the assignment and they had no right to rescind or cancel until this fact was made known to them. Plaintiffs were required to fulfill all requirements imposed upon them by the contract with defendant until their right to rescind or consummate accrued to them. This right could not and did not accrue until early March of 1962. In the meantime, under the contract, they had the right to operate the business. The exercise of this right from December 18, 1961, is not evidence of the waiver of their right to cancel which they did not have until March, 1962, when the Government refused to permit the assignment.

In summary, rescission is a fundamental remedy and one expressly provided for in the contract. The garbage pick-up contract which provided over 90% of the feed consumed by the hogs and $750.00 per month in revenue was a most valuable and important asset of the business. The cancellation provision based upon assignment of this Government contract was to protect the plaintiffs, against the uncertainty of Government action, until June 30, 1962, when the garbage contract would have expired by its own terms and plaintiffs would have had an opportunity to bid on a new one without competition from the defendant.

While the contract from the standpoint of clarity could in all probability be improved upon, the parties having agreed to its provisions are nevertheless bound by them.

All points of error are overruled and the judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. J. Howard NELSON, Appellee.
    No. 16680.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 12, 1965.
    Locke, Purnell, Boren, Laney & Neely, and Larry M. Lesh, Dallas, for appellant.
    Brown, Day & Crowley, and George A. Crowley, Fort Worth, for appellee.
   RENFRO, Justice.

In his petition plaintiff alleged that he was the holder of Certificate 463 under the defendant’s (The Equitable Life Assurance Society of the United States’) Group Policy No. 7250H, which was a group hospitalization and medical benefits policy issued to the Trinity Universal Insurance Company for the benefit of its employees; on September 21, 1962, plaintiff ceased to be an employee of Trinity and was totally disabled on said date from engaging in any occupation for compensation or profit; on September 26 he began hemorrhaging and on September 30 was operated for an ulcerous condition; that “the policy in question and the certificate involved provided in substance that if the employee was on the date the insurance ceased totally disabled * * *, the insurance benefits shall remain in full force and effect”; that under “the terms of the certificate and policy” in question plaintiff was entitled to a total of $1,153.32 for hospital and surgery expenses.

The court, without a jury, rendered judgment for the plaintiff.

The court found that plaintiff was totally disabled by reason of bodily disease from engaging in an occupation for compensation or profit from September 21, 1962, through October 10, 1962; that one Weisner, with actual or at least apparent authority, denied plaintiff’s claim prior to the expiration of ninety days after the commencement of hospital confinement.

On appeal defendant insists on reversal on the ground there was no evidence to support the above two findings, and because plaintiff failed to prove a cause of action in that the group policy plead by plaintiff was not offered in evidence.

The first page of the certificate issued to plaintiff began: “THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED • STATES HEREBY CERTIFIES THAT, Subject to the terms and conditions of Group Hospital Expense Policy No. 7250H the Employee named on the back page of this certificate, an Employee of Trinity Universal Insurance Company, Dallas, Texas * * * is insured for Hospital Confinement Benefits and Surgical Benefits as therein limited.”

In the first paragraph of the text of the certificate, under the heading “Hospital Confinement Benefits,” it was provided that defendant would pay, under certain conditions, to the employee, “subject to the limitations and provisions set forth in said policy,” certain benefits.

The concluding paragraph on the first page of the certificate stated: “This Individual Certificate is furnished in accordance with and subject to the terms of the said Group Hospital Expense policy, which policy, and the application therefor, constitute the entire contract between the parties. This Certificate is merely evidence of insurance provided under said Group Hospital Expense policy, which insurance is effective only if the Employee is eligible for insurance and becomes and remains insured in accordance with the provisions, terms and conditions of the said policy.”

Defendant plead that the certificate was issued to plaintiff “subject to the terms and conditions of said group hospital expense policy No. 7250H insured by the hospital and confinement benefits and surgical benefits contained in said group policy.”

Because we believe the appeal in the instant case is controlled by the holding in Wann v. Metropolitan Life Insurance Co., 41 S.W.2d SO (Tex.Com.App., 1931), we quote rather extensively therefrom. In the Commission of Appeals’ opinion, approved by the Supreme Court, it was held: “Plaintiff in error’s cause of action, as disclosed by his pleading, was based upon the issuance of the group policy. Obviously he was not entitled to recover by merely offering in evidence the certificate and rider attached thereto. These instruments disclose upon their face that they were not intended to and do not constitute a complete contract of insurance. Even if he had predicated his cause of action solely upon the certificate and rider, without any reference to the group policy, a recovery would not have been authorized when it was shown by the express terms of these instruments that they constituted but a part of an indivisible contract.

“It is argued that the certificate with rider attached issued to Wann was so complete in its terms that it was not essential for him to establish the provisions of the group policy. The parties to this contract expressly agreed that plaintiff in error was insured subject to the terms and conditions of the group policy. However complete the terms of the certificate may appear to be, the fact remains that the parties agreed it should be subject to the terms and conditions of another instrument. In the face of such an agreement plaintiff in error had no right, without the consent of the insurance company, to change this contract so as to entitle him to recover without regard to the terms and conditions of the policy expressly made a part of the contract. The terms of the certificate may have been materially modified by stipulations contained in the group policy.

“In order for plaintiff in error to set up a cause of action under the terms of the certificate, it was incumbent upon him to allege and prove that the provisions of the group policy, when construed in connection with the certificate and rider, entitled him to recover for the disability resulting from the injuries sustained in the service of his employer.”

Plaintiff relies upon Connecticut General Insurance Company v. Reese, 348 S.W.2d 549 (Waco Civ.App., 1961), as holding that it was unnecessary to introduce the group policy.

The court in the Connecticut General Insurance Company case said: “Appellant says that the suit is based on a master policy of group insurance, and since plaintiff introduced the individual certificate issued to him, but failed to introduce the master policy, the judgment must be reversed. It relies on Wann v. Metropolitan Life Ins. Co., Tex.Com.App., 41 S.W.2d 50. We do not think the Wann holding is applicable. There the certificate stated it was ‘subject to the terms and conditions’ of the group policy. Here, on the contrary, there is not only an absence of such adoptive language, but the certificate issued by appellant expressly negatives that intent: *

We do not deem it proper to pass upon the question as to whether plaintiff was shown to be totally disabled within the meaning of the language of the certificate, or whether Weisner had authority to deny plaintiff’s claim, as upon another trial the certificate must be construed in connection with the terms and provisions of the group policy. Wann v. Metropolitan Life Ins. Co., supra.

Reversed and remanded.


author: FRASER, Chief Justice.

text:
    PAN AMERICAN PETROLEUM CORPORATION et al., Appellants, v. SOUTHLAND ROYALTY COMPANY et al., Appellees.
    No. 5733.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1965.
    Rehearing Denied Nov. 24, 1965.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock, Carlton R. Winn, Dallas, Richard C. Milstead, Kermit, for appellants.
    Jackson, Walker, Winstead, Cantwell & Miller, Kilgore & Kilgore, Charles B. Wallace, Dallas, Stubbeman, McRae, Sealy & Laughlin, F. H. Pannill, and Jack Akin, Midland, for appellees.
   FRASER, Chief Justice.

This is an appeal from a summary judgment rendered by the District Court of Winkler County, Texas, in response to a motion therefor presented by plaintiffs. The said judgment recites that there is no substantial dispute as to any material fact and that the plaintiffs are entitled to judgment as a matter of law, and there are no items of expense incurred by the defendants that are properly chargeable against the proceeds of the sale of gas and distillate except taxes levied by the State of Texas. (There appears to be no dispute as to the amounts representing sales and taxes.)

This case was tried once before, and the Supreme Court of Texas handed down its opinion reversing the judgments of both the trial court and this Court of Civil Appeals. Because of the nature of this case, we feel it necessary to present somewhat lengthy excerpts from the last and controlling decision by the Supreme Court, construing the lease involved in this controversy. It is well to note that at the conclusion of the majority opinion, the Supreme Court, speaking through Justice Hamilton, said: “ * * * and the cause is remanded to the District Court for further proceedings in accordance with this opinion.” This opinion by the Texas Supreme Court is found in Volume 378 S.W. 2d, page SO. The Supreme Court, in a thorough and well-documented opinion, construes the lease herein involved and the meaning of its terms. We quote from said opinion as follows:

“In 1925 H. G. Hendrick and wife Ida Hendrick leased to J. W. Grant 10,240 acres of land in Winkler County for the purpose of mining and operating for oil, gas, potash and other minerals, subject to certain covenants. We will quote the pertinent parts of said lease:
‘ * * * do grant, lease and let unto the said lessee for the sole and only purpose of mining and operating for oil and gas potash or other minerals * * *.
Tt is agreed that this lease shall remain in force for a term of 20 years from this date, and as long thereafter as oil or gas, potash or other minerals or either of them is produced from said land by the lessee.
‘In consideration of the premises the said lessee covenants and agrees:
‘1st. To deliver to the credit of lessor, free of cost, in the pipe line to which they may connect their • wells, the equal one-eighth part of all oil produced and saved from the the leased premises and Y of the net proceeds of potash and other minerals at the mine.
‘2d. To pay the lessor One Hundred Dollars, each year in advance for the gas from each well where gas only is found, while the same is being used off the premises, and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the time by making their own connections with the well at their own risk and expense.
‘3rd. To pay lessor for gas produced from any oil well and used off the premises at the rate of Fifty and No/100 Dollars per year for the time during which such gas shall be used, said payments to be made each three months in advance.
******
‘Lessee shall have the right to use, free of cost, gas, oil and water produced on said land for all operations thereon, except water wells of lessor.’
“This lease is on a printed form in which the blanks have been filled in with a typewriter and certain inter-lineations made in longhand on the printed portions thereof. The inter-lineations in the quoted part above are italicized. The respondents are the present owners of the lease in so far as it covers three-fourths of a section of land (480 acres) of the 10,240 acres included therein, and petitioners are the owners of varying mineral interests in the lands covered by the lease, including the 480 acres of land which is involved in this lawsuit.”

The court then recounts the history of the development of this lease, pointing out therein that respondent-defendants paid $50.00 per well per year where gas was being taken from a well producing both oil and gas, and $100.00 per well per year where the well produced gas only. Respondents had from time to time been selling some gas to other operators for use in developing and processing on their own properties. The court then goes on to say:

“ * * * Petitioners were not notified of such sales, nor did the respondents pay petitioners Y& of the proceeds of such sales. It is undisputed that the petitioners had no knowledge of any such sales.
“Respondents drilled a deep gas well on petitioners’ portion of the T. J. Hendrick lease in 1956 which produced gas only. They began selling the gas from this well in 1958. Two other deep gas wells were completed, one in 1958 and one in early 1959, from which respondents began selling gas. Petitioners learned of such sales shortly before filing this suit in 1959, at which time respondents were selling gas from these three wells at the rate of more than a million dollars’ worth per year.
“Petitioners contend that respondents are obligated to them for the payment of of the proceeds of the sale of gas from their portion of the premises covered by the lease as provided in the first royalty clause therein. Respondents contend that they are only obligated to pay for gas used or sold under the provisions of paragraphs 2 and 3, contending that the first royalty provision does not provide for royalty on gas. The Court of Civil Appeals has held that the first royalty provision does not provide for the payment of royalty on gas, and that respondents are liable only under 2 and 3.”
* * He * * #
“On the face of the lease as finally written and executed by the parties there is a possible conflict between the first royalty clause and the second and third royalty clauses. The first royalty clause, as amended, imposes a clear legal obligation to pay royalty of l^th of the net proceeds on gas sold, including gas sold for use by others off the premises, and which in its second and third royalty clauses does not impose clear legal obligations to pay flat-rate royalties on gas sold for use by others off the premises but are ambiguous in that respect. If we construe the second and third clauses as imposing obligations to pay the flat-rate royalties while gas is being used off the premises by others to whom the gas is sold, as well as by the lessee, we either create an absolute repugnancy between the royalty clauses or we impose an obligation to pay both the percentage and the flat-rate royalties for gas sold. On the other hand, if we construe the second and third royalty clauses as imposing obligations to pay the flat-rate royalties only while gas is being used off the premises by the lessee, repug-nancy is avoided. The obligation would be to pay the percentage royalty on gas sold and the flat-rate royalty on the gas used off the premises. Thus none of the clauses are nullified and all three clauses are given meaning and operative effect. Sound rules of construction require us so to construe them. Woods v. Sims, 154 Tex. 59, 273 S.W. 2d 617, 620; Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, 167.
“While there is no need here to resort to them, there are other secondary rules of construction for resolving apparent conflicts which, if applied, would lead to the same result. One is the rule which gives effect to written or typewritten provisions over printed provisions. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344. Another is the rule which gives effect to an earlier over a later provision. Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360, 363; Williston on Contracts, Revised Edition, § 624.
“The effect of our holding here is that a lease which contains a specific provision for the payment of royalty for gas sold and also contains a provision for the payment of royalty on a flat-rate basis for gas used off the premises, the term ‘used off the premises’ does not include ‘sold for use off the premises.’ ”.

The court then cites a number of cases as authority for its holding as set forth above, and further holds as follows:

“Petitioners’ motion for rehearing is granted, the judgment heretofore rendered and entered is set aside, and the judgments of the District Court and the Court of Civil Appeals are reversed and the cause is remanded to the District Court for further proceedings in accordance with this opinion.”

Chief Justice Calvert of the Supreme Court of Texas wrote a concurring opinion discussing the various aspects and the construction of this lease with its changes in the printed form, and, after citing authorities substantiating his concurring opinion, Chief Justice Calvert stated, inter alia:

“ * * * I agree that to avoid repug-nancy and harmonize the provisions of the lease the second and third royalty clauses should be held to apply only to gas used off of the premises by the lessee and the first royalty clause should be held to apply to gas sold to others for use off of the premises.”

The District Court, as above stated, granted the plaintiffs’ motion for summary judgment awarding the respective parties their respective fractional interest in l/^th of the gross proceeds of the sale of gas and distillate, excepting only the taxes levied on the products sold.

The appellants here have presented a total of nineteen points of error, and an additional point, No. 20, is presented in appellants’ Reply Brief. The first thirteen points seem to us to be only further discussion and consideration of matters already clearly disposed of by the opinion of the Supreme Court. We do not believe it necessary to itemize or eludicate any or all of these first thirteen points as they deal with construction of certain terms of the lease and with the question of whether or not plaintiffs had actual or constructive knowledge of sales of gas by defendants. These matters, as stated above, were thoroughly considered and clearly disposed of in the opinion of the Supreme Court of Texas. Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352; Case-Pomeroy Oil Corp. v. Pure Oil Company, 279 S.W. 2d 886 (wr. ref.). The above cited cases and the cases cited therein clearly hold that once the highest court of the state has given a particular effect or construction to a specific instrument in writing, such construction or determination is conclusive upon these matters in subsequent litigation involving them, even though the subsequent controversy might be presented by different parties or be concerned with different properties. Also, the following cases hold that extrinsic evidence must be excluded where the court has construed or interpreted the instrument involved. (In this case the court specifically states that its construction avoids any ambiguity and repugnance which, of course, precludes the admission of any extrinsic evidence.) Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217; Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381, 96 S.W.2d 1110; McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341; Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154. Therefore, we overrule appellants’ first thirteen points.

Appellants’ fourteenth point alleges that the Supreme Court of Texas had the power, authority and jurisdiction to have sustained the plaintiffs’ motion for summary judgment had such motion been sustainable, and the refusal of the Supreme Court to do so is a holding to the effect that the plaintiffs were not entitled to a summary judgment by the trial court, and that the trial court was bound thereby. We do not believe that this is a sustainable implication or is in any way a holding by the Supreme Court, as set forth by the appellants. Finding no merit in this point it is accordingly overruled.

We pass now to the remainder of appellants’ points, to-wit, 15 through 20, which attack the validity of the trial court’s summary judgment, maintaining and alleging that the trial court committed error in granting relief by way of summary judgment. It is our belief and holding that these last five points must be overruled. This takes us back again to the wording of the opinion by the Supreme Court wherein it reverses the holdings of the District Court and Court of Civil Appeals and states: “ * * * and the cause is remanded to the District Court for further proceedings in accordance with this opinion”. We believe that the Supreme Court construed the terms of the lease, resolved any possible repugnance, ambiguities, or conflicts therein, and that this statement means that the cause was remanded by the said court so that the trial court could compute the amount of royalty due the plaintiffs. The said opinion by the Supreme Court is so conclusive and all-encompassing that there is nothing left to determine except the amount of money due the plaintiffs as royalty from the sale of gas and distillate. Justice Hamilton, in writing the majority opinion for the Supreme Court, said: “In construing the first royalty provision we note that it provides for 14 of the net proceeds of potash and other minerals at the mine. We think there is no question raised but that the ‘proceeds of potash and other minerals’ means net proceeds from the sale of potash and other minerals.” (Emphasis ours.) Appellants describe the manner in which gas and distillate is produced and sold, as part of their Response to Request for Admissions. In considering and construing such Response the District Court held, as appellees contend — and correctly, we think —that it is clear there are no properly deductible items of expense involved in the sale of the gas and distillate, as it is set forth without dispute that the gas flows from the wells by its own power, some thirty to sixty feet, to a separator and/or meter and pipline installed by the purchaser. The distillate flows some 2000 feet to tanks and is there taken by the purchaser. Plaintiff-appellees do not dispute or controvert the amount of money received for the sale of gas and distillate nor the amount of taxes involved.

It has long been established that a royalty interest is one that is free of cost of producing, saving and preparing the product for market. Miller v. Speed, Tex.Civ.App., 248 S.W.2d 250 (n. w. h.). In Merrill, Covenants Implied in Oil and Gas Leases (Second Edition), section 85, page 214, it is stated:

“If it is the lessee’s obligation to market the product, it seems necessarily to follow that his is the task also to prepare it for market, if it is unmer-chantable in its natural form. No part of the cost of marketing or of preparation for sale is chargeable to the lessor. This is supported by the general current of authority.”

Also, Siefkin in his “Rights of Lessor and Lessee with Respect to Sale of Gas and as to Gas Royalty Provisions”, Fourth Annual Institute on Oil and Gas Law and Taxation, Southwestern Legal Foundation (1953), page 181 at page 202, says:

“If, as seems to be conceded by nearly all the authorities, value at the well determines, it necessarily follows that royalties may not be computed upon transported or processed values— which are not values of such gas at the well — without deducting the lessor’s proportionate part of the transportation or processing expense.”

To the same effect are Skaags v. Heard, 172 F.Supp. 813 (U.S.D.C., Southern District of Texas, 1959), and Gilmore v. Superior Oil Co., 192 Kan. 388, 388 P.2d 602. Lastly, the lease itself contains the following provision:

“To deliver to the credit of lessor, free of cost, in the pipe line to which they may connect thei wells, the equal one-eighth part of all oil produced and saved from the leased premises and (4 of the net proceeds of potash and other minerals at the mine.”

We find no challenge to the correctness or accuracy of the figures showing the price received for the sale of gas and distillate and the amount of taxes deductible therefrom. However plaintiff-appellees do maintain, and we think correctly, that the costs of production, preparation, saving and marketing are not properly deductible, as we are dealing here with a royalty interest carefully construed and set forth in the majority opinion of the Supreme Court. Also, we do not find any case cited by appellant-defendants holding that the interest of a royalty owner is subject to the costs and expenses of production. In any event, there appears no dispute with regard to the character or amount of the expenditures presented by defendant, the dispute being only that such expenditures are not properly deductible. Finally, we again quote from the majority opinion of the Supreme Court:

“In construing the first royalty provision we note that it provides for Y of the net proceeds of potash and other minerals at the mine. We think there is no question raised but that the ‘proceeds of potash and other minerals’ means net proceeds from the sale of potash and other minerals. We also think there is no serious question raised but that the words ‘mineral’ or ‘minerals’ include gas. This is well settled in our law, as is shown by the following cases * * *

The Supreme Court further said:

“The effect of our holding here is that a lease which contains a specific provision for the payment of royalty for gas sold and also contains a provision for the payment of royalty on a flat-rate basis for gas used off the premises, the term ‘used off the premises’ does not include ‘sold for use off the premises’ ”.

In these last points appellants also urge that the wording of the opinion or judgment by the Supreme Court constitutes a general remand. With this position we cannot agree, because, as we have set forth above, the Supreme Court carefully went into and construed the elements of the lease in question so that there was no repugnancy, such construction leaving no basis for a claim of ambiguity. Therefore the trial court, in the matter now before us, was confronted with a lease that had been carefully construed, outlined and explained, the decision also defining and declaring the interests here involved belonging to the ap-pellees as royalty interests. Further, it being a well-adjudicated and accepted legal principle that royalty interests are not chargeable with the expenses of production, preparation, marketing, etc., but only with taxes, and there being no controversy over the amounts received by defendants for the sale of the products here involved, and there being no controversy as to the amount of taxes claimed to be deductible, the trial court, having no genuine disputed fact issue before him, quite properly granted plaintiffs’ motion for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952), and the many cases following and citing the holding in the above case. We believe that, in so doing, the trial court was carrying out the exact mandate of the Supreme Court decision, which we construe as ordering said trial court to determine the amount of the “net proceeds” of the said sales of gas and distillate. This, of course, could not be defined as a “general remand”.

Appellants argue that there is a fact question regarding the amount of money spent on the cost and production of these leases, but this is not a deductible expense; therefore, it did not need to be considered by the trial court.

Therefore, as a result of the findings and holdings of the Supreme Court of Texas and the uncontroverted exhibits herein that are applicable, there remained no controversial issue of fact to be determined by the trial court, and he was therefore correct in granting the summary judgment here appealed from.

In their Reply Brief appellants present a new point, numbered 20, which alleges that the Supreme Court could have rendered judgment for the appellees, who were plaintiffs below, because the record was in such shape, and contained enough information, to make such rendition possible. Therefore, say the appellants, the fact that the Supreme Court did not render such judgment was binding on the trial court, and the trial court was accordingly in error in granting its summary judgment. We do not believe this point has sufficient merit to warrant its being sustained. Appellants here, in effect, argue that because, in their opinion, the Supreme Court had enough information to have rendered a judgment for appellees, its failure to do so was significant. We find nothing in the opinion by the Supreme Court to justify appellants’ position, as the Supreme Court went to great lengths to interpret and construe the lease, and then sent it back to the fact-finding trial court for determination of the amounts due appellees. Point 20 is therefore overruled.

Finding no error, appellants’ points are all overruled and the judgment of the trial court is in all things affirmed.


author: MASSEY, Chief Justice.

text:
    J. Lee STANSBURY, Appellant, v. C. Jim HICKS et al., Appellees.
    No. 16672.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1965.
    Henry & Hatcher, Stark & Davey, and Gregory L. Underwood, Gainesville, for appellant.
    Bill Granger, Oklahoma City, Okl., Gerald E. Stockard, Denton, for appellees.
   MASSEY, Chief Justice.

It is to be observed in 33 Tex.Jur.2d 643, “Judgments”, § 122, “Where some of several defendants default”, that where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others. Further, that proper practice is to enter an interlocutory judgment against those in default, so that the case would be finally disposed of in a trial on the issues presented by those who appeared, and on the conclusion of the case as to the co-defendants the default judgment is made final.

In a suit filed by J. Lee Stansbury against C. Jim Hicks and Luther C. Sallee et al. in 1961 this is what occurred. On June 3, 1963, plaintiff took an interlocutory judgment against the latter named parties and also against Roy C. Ridgway and United Engineering, Inc., all of whom had apparently defaulted, leaving for trial on the merits the cause of action alleged against the single co-defendant contesting the suit, one Jack Stansbury. Trial of the cause as against Jack Stansbury proceeded on June 3, 1963, and was concluded on or before June 6, 1963. The trial judge announced but did not then enter judgment which acquitted Jack Stansbury of all liability alleged. A judgment to that effect was not signed and entered until January 21. 1965.

Before the occurrence of said events on January 21, 1965, to-wit: on October 17, 1963, Hicks and Sallee had filed a new suit under a separate number and by their petition, in the nature of a Bill of Review, had sought equitable relief against J. Lee Stansbury. Therein they attacked the interlocutory judgment of June 3, 1963. They were present in court on January 21, 1965, along with the attorneys who had represented the two Stansburys in the suit tried in June of 1963. No one was present in representation of Roy C. Ridgway or United Engineering, Inc., neither of whom had been made parties to the Bill of Review.

Immediately following the signing of the judgment on January 21, 1965 (in the cause J. Lee Stansbury had filed in 1961, in which the interlocutory judgment had been entered in 1963) the trial judge overruled a plea in abatement for want of necessary parties. He proceeded to hear evidence upon the Bill of Review. The hearing was recessed and not completed until February 25, 1965, on which date the court entered a judgment. In the period between January 21, 1965, and February 25, 1965, no motion for new trial was filed under the number of the cause of action originally filed by J. Lee Stansbury. In other words more than thirty days expired in that cause after judgment was entered. Thus the judgment became final and appealable. No appeal was taken therefrom.

However in the separate judgment entered by the court on the Bill of Review it was first decreed that the “default” judgment against Hicks and Sallee (in the other case) should be set aside and held for naught. In the body of the judgment was a recitation that the court was of the opinion that the original cause filed by J. Lee Stansbury should be and was consolidated with the suit in the nature of a Bill of Review. Furthermore the judgment recited that after evidence was heard, etc. the court was of the opinion and did therefore decree that J. Lee Stansbury should take nothing of any of the defendants against whom he had brought his suit in 1961. Judgment to this effect was entered on February 25, 1965.

We are of the opinion that the Plea in Abatement of J. Lee Stansbury should have been sustained. All the parties interested in the subject matter of the Bill of Review were not joined as parties to the proceeding. We are thereto confined. The order purporting to consolidate said proceedings with the antecedent proceeding in which judgment was rendered against all parties (culminating in entry of judgment disposing of the claim against Jack Stansbury) on January 21, 1965, had no force and effect. That antecedent proceeding ceased to be a pending cause thirty days after judgment therein was entered. A pending cause may not be joined with another cause in which a judgment has become final. The trial court loses jurisdiction of the cause when the judgment becomes final. The subject matter of such a cause can only be reached by an equitable proceeding. When relief to be obtained is necessarily predicated upon an independent equitable proceeding attacking a judgment, the judgment under attack cannot be revised unless and until all the parties interested in the subject matter of the suit are made parties thereto. Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358 (1937). It is final and not temporary relief with which the court is concerned in such a proceeding.

Judgment is reversed and the cause remanded.


author: NYE, Justice.

text:
    PETROLEUM PROCESSING, INC., Appellant, v. Ronal J. ROEMER, Appellee.
    No. 127.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 4, 1965.
    Rehearing Denied Dec. 2, 1965.

      Keys, Russell, Watson & Seaman, Ben A. Donnell, Corpus Christi, for appellant.
    Guittard, Henderson & Jones, O. F. Jones, Victoria, for appellee.
   NYE, Justice.

This is an appeal from an order overruling defendant’s plea of privilege. Suit was brought by plaintiff Roemer in the District Court of Calhoun County against Petroleum Processing, Inc., a Texas corporation. Defendant filed a plea of privilege to be sued in Nueces County, where its principal office was located. Plaintiff filed a controverting affidavit alleging that venue properly lay in Calhoun County under subsections 9, 9a, 14 and 23 of Article 1995, Vernons Ann.Tex.Civ.St. The controverting affidavit was sworn to and the original petition was referred to and made a part of the affidavit for all purposes.

The plaintiff introduced his petition in evidence, which disclosed that the nature of his suit was one for damages to the plaintiff’s land and his growing crops. The original petition alleges that the defendant’s plant was located on land adjacent to the plaintiff’s farm; that the defendant operated a natural gasoline processing plant, the purpose of which was to extract certain by-products from the natural gas. Plaintiff plead various acts of negligence on behalf of the defendant in the operation of its plant, alleging among other things that due to the negligence of the defendant in the design, operation and maintenance of the plant, it resulted in the release of toxic and chemical products which were the direct cause of damages suffered by the plaintiff to his growing cotton crops and damage to the plaintiff’s land. Among the various acts of negligence plaintiff alleges that the defendant was negligent in permitting the discharge of oil and chemically impregnated waters to flood the rows of cotton of plaintiff’s field from plant discharges on four separate occasions. Other acts of negligence were alleged which plaintiff claimed were the cause of the resulting damage to his land and crops and which materially and unreasonably interfered with the use and enjoyment of his property. Plaintiff alleged and described his lands in his petition as being situated in Calhoun County, Texas.

Sub-section 14 of Article 1995, V.A.T C.S., provides:

“14. Lands. — Suits for the recovery of lands or damages thereto * * *, must be brought in the county in which the land, or a part thereof, may lie.”

The venue facts which plaintiff had the burden to establish under this subdivision were: (1) that this was a suit for damages to land and, (2) that the land, or a part thereof, lay in Calhoun County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, Sup.Ct.1945; Piazza v. Phillips, et al, 156 Tex. 115, 264 S.W.2d 428, Sup.Ct. 1954; Advanced Exploration Co., Inc. v. Spires, Tex.Civ.App., 256 S.W.2d 247.

The plaintiff did not seek any injunctive relief, but claimed damages to his land in the amount of $50 per acre on 110 acres for a total loss of value of $5500; damages to his crops in the amount of $8261; and exemplary damages in the amount of $10,000 for the invasion of plaintiff’s rights and denial of the full use and peaceful possession and enjoyment of his property. At the hearing on the plea of privilege, the evidence was uncontroverted that plaintiff’s land described in his petition was in fact situated in Calhoun County, Texas. The allegations of plaintiff’s petition unquestionably show that the nature of this suit was, in part, one for the recovery of damages to the land. Hunt Oil Company v. Murchison, 352 S.W.2d 365, Tex.Civ.App. 1961; Hall v. Piwonka, 357 S.W.2d 486, Tex.Civ.App.1962; Wynne v. Freiley, 349 S.W.2d 734, Tex.Civ.App.1961; Stephenville Production Credit Ass’n v. Rockwell, et al., 250 S.W.2d 476, Tex.Civ.App.1952.

Appellant contends that the principal relief sought was the recovery for the value of the growing crop of cotton, a relief not within the provision of sub-section 14. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706, 1957; W. B. Johnson Drilling Company v. Lacy, 336 S.W.2d 230, Tex.Civ.App.1960; and that a suit for damages to growing crops is not an action for damages to land within the meaning of sub-section 14 of Article 1995. Stull’s Chemicals, Inc. v. Davis, 263 S.W.2d 806, Tex.Civ.App.1953, and Stanolind Oil & Gas Company v. Smith, 290 S.W.2d 696, Tex.Civ.App.1956. In the Brown v. Gulf Television Company case, the Supreme Court said:

“Where the venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted and the relief sought for the breach thereof.” (citing cases).
“The existence of a certain set of facts may entitle a litigant to a choice between the legal and equitable remedies and it may seem that no venue distinction between the remedies should logically be drawn if convenience of trial for litigants and witnesses be the true basis of the venue exception, but the Legislature has expressly provided a special venue for injunction suits and in cases where the plaintiff alleges that he has no adequate remedy at law and hence is entitled to and requests injunctive relief, it would seem that he chooses the equitable remedy as and for his primary relief. The venue of the suit is consequently controlled by Article 4656 rather than Article 1995, § 14.” (citing cases).

It is true that the plaintiff sought damages to a growing crop which for the purpose of the venue statutes is considered personal property. If this was the only damage claimed, plaintiff would have to rely on some other permissible venue exception. However, the nature of plaintiff’s suit and the relief sought was, in part, one for damages; damages to plaintiff’s land; and damages caused by the denial of the peaceful possession and enjoyment to his land. It is immaterial that the allegations of plaintiff’s petition also sought damages for injuries to the growing crops rather than damages exclusively for injury to the land. Cox v. Chapa, 188 S.W.2d 217, Tex.Civ.App.1945; Stephenville Production Credit Ass’n v. Rockwell, et al., supra (see cases cited therein); Ward & McCullough v. Mobley, 250 S.W.2d 948, Tex.Civ.App.1952; Wagner v. Pulliam, 361 S.W.2d 470, Tex.Civ.App.1962, and cases cited therein; Pickens v. Harrison, et al., 231 S.W.2d 812, Tex.Civ.App.1950. It is well settled that exception 14 of the venue statute is mandatory where the privilege is properly claimed and where the suit falls within its terms, and it prevails over permissive exceptions of the Venue Statute. Langdeau v. Burke Investment Company, 163 Tex. 526, 358 S.W.2d 553, 1962.

We are of the opinion under the record, that this case is controlled by sub-section 14 of Article 1995. Appellant’s Point No. 4 is overruled.

Plaintiff contended that exceptions to the venue statute under subdivisions 9, 9a, and 23 were proved at the hearing on defendant’s plea of privilege. We have carefully read the entire statement of facts and hold that the plaintiff-appellee did not sustain the burden of proof necessary under the law. There was no evidence that the negligence of the defendant, if any, was the proximate cause of the damages to the plaintiff’s growing crops. However, when more than one exception to the general venue statute is relied on to confer jurisdiction in the county where the suit is brought, establishment of any ground obviates the necessity of proof that others exist. Central Motor Co. v. Roberson, 139 S.W.2d 287, Tex.Civ.App.; American Seed Co. v. Wilson, 140 S.W.2d 269, Tex.Civ.App.; Stripling v. Hoing, 203 S.W.2d 1016, Tex.Civ.App.; 60 Tex.Jur.2d § 204, page 509.

The judgment of the trial court is affirmed.


text:
    Donald STRICKLAND, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16676.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 29, 1965.
    John Ramfield, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., and George Shaw, Asst. Dist. Atty., Fort Worth, for appellee.
   RENFRO, Justice.

The Department of Public Safety, based on an affirmative finding of a justice of the peace that appellant “has committed an offense for which automatic suspension of license is made upon conviction, to-wit: Driving while license suspended,” issued its order suspending appellant’s license.

After the appellant filed suit in the County Court at Law to set aside the order, the Department filed a motion for summary judgment supported by an affidavit of an acting Deputy Custodian of the Department of Public Safety, Driver and Vehicle Records Division of the State of Texas, which stated the operating record of appellant showed an affirmative finding was made on May 19, 1964, that appellant was an habitual violator of the traffic law, that on June 1, 1964, appellant’s operator license and commercial operator license were suspended for three months, and under date of June 6, 1964, were the words, “Reckless driving, Forest Hills, Texas,” and on the same date, “Operating a motor vehicle without a valid Operator License, Forest Hills, Texas.” Accompanying the motion for summary judgment were two City of Forest Hills corporation court’s complaints which bear the name of the appellant.

Appellant filed a controverting affidavit in which he swore that he had not committed the offense and had not been convicted of the offense of driving while license suspended, and that he had not committed the offense and had not been convicted of the offense of reckless driving and had not committed the offense and had not been convicted of operating a motor vehicle without a valid operator’s license.

No disposition of the complaints was shown. They bear no certification. It is not shown from where and whom they were obtained. The complaints, without at thentication being shown, were sufficiently controverted by appellant to prevent summary judgment being rendered against him. Texas Department of Public Safety v. Gentry, 386 S.W.2d 758 (Tex. Sup., 1964) ; Darrow v. Texas Department of Public Safety, 392 S.W.2d 785 (Eastland Civ.App., 1965).

The affidavit of the acting Deputy Custodian, if admissible, does not purport to be an abstract of the court records covering the cases in which appellant was convicted and therefore cannot be presumed to reflect the terms of the judgments in such cases. Texas Department of Public Safety v. Gentry, supra.

The record in this case differs materially from that of Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.Sup., 1964), and Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.Sup., 1964), for in those cases the motion for summary judgment was supported by properly authenticated copies of convictions. It was held that the notices of conviction were admissible under the provisions of Art. 3731, Vernon’s Ann.Civ. St., and that the authenticated copies were properly before the court.

Judgment reversed and the cause remanded.


author: MURRAY, Chief Justice.

text:
    Frank E. SCOTT, Appellant, v. Anthony WILSON, Appellee.
    No. 14417.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1965.
    Rehearing Denied Dec. 1, 1965.

      Earle Cobb, Jr., San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, Thomas H. Sharp, Jr., San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Frank E. Scott against Dr. Anthony Wilson for malpractice in performing, on his left ear, an operation known as stapedectomy with vein graft. The trial began to a jury, but when Scott rested his case the trial court gave an instructed verdict that plaintiff take nothing, and Scott has prosecuted this appeal.

The main question presented in this case is whether Dr. Wilson reasonably and adequately informed Scott of the dangers and hazards to be anticipated from the stapedec-tomy operation so as to prepare him to give a knowledgeable consent to the operation.

This was not an emergency operation which had to be performed to preserve Scott’s life or health. Scott was not unconscious at the time so as to be unable to give consent. Such operation was an elective operation which Scott might decide to have or not to have. He had impaired hearing in his left ear, but was able to improve his hearing by the use of a hearing aid. He could choose to have the operation or to continue with the use of his hearing aid.

Under such circumstances, when Scott went to Dr. Wilson to discuss the operation, it was the doctor’s duty to inform him of the nature of the operation, the processes contemplated, and the dangers and hazards of the operation and the chances of restored hearing, so as to enable Scott to determine whether he wanted to risk the operation or to live with his impaired hearing. The doctor was under a duty to make full disclosure of these things and not to minimize them. He should not mislead anyone as to his skill and ability to perform the operation.

In some respects Scctt and Dr. Wilson agree as to what was said and done on the occasion of their conference, and in some respects they disagree. Scott says that when he called at Dr. Wilson’s office on the occasion in question Dr. Wilson gave him an examination covering some forty-five minutes. The doctor went over the nature of the operation with him and apparently explained it ftilly. This seemed to be good and well, but Scott says that the doctor misled him when he said that with an ideal patient like him “we” have 90% success and 10% in which the hearing is not improved or made worse. The doctor says that he went further and said in 1% the hearing is entirely lost. Scott says that he was not told about the one percent. This is important because Scott entirely lost the hearing in his left ear. Scott says that by the use of the word “we” he understood that the doctor had performed the stapedectomy operation before, while in truth and in fact this was the doctor’s first stapedectomy operation. Scott says he further told him the operation would be performed at the Baptist Hospital because he had his equipment and a trained crew there. Scott says this caused him to further believe the doctor was experienced in performing this operation. Scott states he asked the doctor what the risk of disability was, and was told there was no risk other than that always connected with anesthetics. It is possible that Scott had one thing in mind and the doctor another. Scott says the operation was a failure and resulted in (1) the complete loss of hearing in the left ear, (2) tinnitus, (3) recurring periods of vertigo, (4) recurring dizziness and loss of balance, (5) loss of taste, (6) other nervous disorders. When the doctor, while on the witness stand, was asked what bad effects a patient might have as a result of the stapedectomy, he replied: “Well, he can lose his hearing; he can get meningitis; he can die, * * * Everyone has vertigo following this operation, temporarily. * * * some people get tinnitus. * * * In elderly individuals this (instability or a dizziness) is an occasional occurrence.” The doctor stated he knew these things when he operated on Scott. He further testified that he probably told Scott about the taste problem, Scott says he might have.

The evidence shows that the doctor was by education, training and experience a very skillful ear surgeon, and had performed many ear operations other than stapedectomy. He had studied the operation under some of the best authorities and had performed the operation some ten or fifteen times upon cadavers, but never before upon a live person.

The above statement is not complete in every respect, but we feel it is sufficient to show the situation at the time the trial court gave the defendant below an instructed verdict in his favor.

There was a fact issue raised here upon conflicting testimony as to whether Dr. Wilson made a full disclosure of the risk, dangers and outcome probabilities of the stapedectomy operation, and therefore the trial court should not have granted the instructed verdict in appellee’s favor. We find no authorities in this State directly in point, but there are authorities from other jurisdictions that are -in point. Bowers v. Talmage (Bowers v. von Storch), Fla.App., 159 So.2d 888, wherein it is held that where there is no emergency the doctor is under a duty to adequately inform the patient as to the dangers to be anticipated as a result of the operation, and not to minimize them. Whether the doctor complied with that duty was there a question for jury determination.

In Russell v. Harwick, Fla.App., 166 So.2d 904, the Court held that the doctor was negligent in failing to inform the patient as to the alternate methods of surgical treatment he contemplated, and in proceeding without the informed consent of the plaintiff.

In the very recent case of DiRosse v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623, the Court said: “We are of the opinion that, under the facts and circumstances disclosed by this record, including the fact that no immediate emergency existed, defendant was obligated to make a reasonable disclosure to his patient of the known dangers which were incident to or possible in the proposed use of gold; and that the trial court, therefore, did not err in charging, in substance, that defendant could be found guilty of malpractice if he failed in that duty (cf. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied. 187 Kan. 186, 354 P.2d 670; Mitchell v. Robinson, 334 S.W.2d 11 [Missouri]).”

In Mitchell v. Robinson, Mo., 334 S.W.2d 11, the Supreme Court of Missouri said: “In the particular circumstances of this record, considering the nature of Mitchell’s illness and this rather new and radical procedure with its rather high incidence of serious and permanent injuries not connected with the illness, the doctors owed their patient in possession of his faculties the duty to inform him generally of the possible serious collateral hazards; and in the detailed circumstances there was a sub-missible fact issue of whether the doctors were negligent in failing to inform him of the dangers of shock therapy.”

While Dr. Wilson was on the witness stand he was asked the following questions and gave the following answers relating to the stapedectomy operation, to-wit:

“Q. All right. I’ll read further, ‘This type of surgery is not for the impatient surgeon or for the otologist with the occasional opportunity to perform this surgery.’ Do you agree with that?
A. Yes.
Q. Further down he says, ‘Never before have so many patients with oto-sclerosis been willing to accept the procedures that we are offering them today to improve their hearing. The unprecedented publicity regarding this operation in newspapers, magazines, radio, and television has left an impression in the minds of most people that the operation is infallible. The public has been educated to believe that modern science and ingenuity have solved their ills, and without risk. They need not be discouraged from assuming this risk, but they certainly should be aware of it.’ Do you agree with that ?
A. Absolutely.
Q. Is that your opinion ?
A. Yes.”

There can be no doubt that the stapedectomy operation performed on Scott was an elective operation and performed under such circumstances as to require of Dr. Wilson that he reasonably and adequately warn Scott of the known hazards and dangers that might probably be expected from such an operation, and the chances of favorable and unfavorable results to be contemplated.

The eonsent which Scott gave to have the operation performed is of no effect unless it was an informed and knowledgeable consent. There is no question here as to Scott’s being injured and suffering damages as a result of the operation.

If Dr. Wilson did not have Scott’s informed consent to operate upon him he would be guilty of assault and battery on Scott, and liable for the damages caused by the operation. Moss v. Rishworth, Tex.Com.App., 222 S.W. 225.

The court did not err in excluding the testimony of Meredith Mallory, Jr., because he failed to qualify as a medical expert.

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

BARROW, J., not sitting.


author: WILSON, Justice.

text:
    DEALERS NATIONAL INSURANCE COMPANY et al., Appellants, v. Warnell ROSE, Appellee.
    No. 4426.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1965.

      Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.
    Steve Latham, Whitney, for appellee.
   WILSON, Justice.

Defendants’ plea of privilege in a slander action against it was overruled. We affirm.

Plaintiff alleged the defendant agent of defendant insurance company made a false statement to plaintiff’s employer that a peace officer had found plaintiff in an intoxicated state, and that unless plaintiff was discharged the insurance company would cancel the employer’s insurance. The statement resulted in the discharge of plaintiff, a butane truck driver, it was pleaded.

Defendants’ position is that the communication was shown to be conditionally privileged because the insurer and plaintiff’s employer had a mutual interest in the safe operation of insured vehicles; and plaintiff failed to prove malice, requisite under such decisions as Johns v. Associated Aviation Underwriters, 5 Cir., 203 F.2d 208. They say plaintiff therefore failed to prove existence of a cause of action as a venue fact under subd. 29, Art. 1995, Vernon’s Ann.Civ.St., citing A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622.

That a defamation is qualifiedly privileged is an affirmative defense in the nature of confession and avoidance. International & G. N. R. Co. v. Edmundson, Tex.Com.App., 222 S.W. 181; 36 Tex.Jur.2d, Secs. 48, 57, pp. 336, 343; Townes, Texas Pleading, 2d ed., 540, 542. It is a defense upon which defendant has the burden of proof. Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609, 614, 615; 53 C.J.S. Libel and Slander § 220, p. 332. When qualified privilege is shown, the burden is upon plaintiff to show actual malice. This is because the presumption of malice or want of good faith actuating the communication has been negatived by the showing of privilege. Cranfill v. Hayden, above; Simmons v. Dickson, 110 Tex. 230, 213 S.W. 612, 218 S.W. 365.

The sole issue in the plea of privilege hearing is that of venue; not liability or the merits of the case. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. The defense is not available on the hearing to defeat venue in the county of suit. Negativing the prima facie cause of action established by plaintiff does not negative the “venue fact.” It simply does not af-feet venue. Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810; Josey Miller Company v. Wilson, Tex.Civ.App., 384 S.W.2d 231, 232 and authorities cited; Rudman v. Hawkins, Tex.Civ.App., 226 S.W.2d 491; Thomason v. Haskell Nat. Bank, Tex.Civ.App., 56 S.W.2d 242. See Panhandle Publishing Co. v. Fitzjarrald, Tex.Civ.App., 223 S.W.2d 635, 641, reversed on other grounds, 149 Tex. 87, 228 S.W.2d 499. These questions were not directly passed upon in Creswell v. Pruitt, Tex.Civ.App., 239 S.W.2d 165, no writ, relied upon by appellant. Affirmed.


author: SHARPE, Justice.

text:
    E. C. HUBBLE, Appellant, v. Esther L. BURCHARD, Appellee.
    No. 130.
    Court of Civil Appeals of Texas. Corpus Christi.
    Oct. 28, 1965.
    Rehearing Denied Dee. 2, 1965.
    Ralph J. Graham, Horkin, Nicolas & Nicolas (Toufic Nicolas) Corpus Christi, for appellant.
    Trimble & Dobbs (J. B. Trimble) Corpus Christi, for appellee.
   SHARPE, Justice.

This appeal is from a judgment rendered in a non-jury trial in favor of appellee and against appellant for $4,000.00, of which $3,000.00 was awarded for services rendered to appellant during a ten-month period from April, 1957, through January, 1958, by appel-lee and her deceased husband, and $1,000.00 for appellee’s attorney’s fee. Findings of fact or conclusions of law were not requested or made. Appellee’s right to bring the suit as sole beneficiary is not questioned.

Appellant, by two points, contends that there is no evidence and that the evidence is factually insufficient to support an express contract as the basis of the award in favor of appellee.

A review of the record reflects that the evidence is factually sufficient to support implied findings in favor of the judgment that appellant orally agreed with appellee’s husband, and after his death, with her, for each of them to render accounting, bookkeeping and income tax services for his benefit and that appellant agreed to pay for such services. However, the evidence is factually insufficient to support an implied finding that appellant agreed to pay appellee or her husband either the sum of $300.00 per month, or a total of $3,000.00 for ten months, for such services.

Appellant contends, and we agree, that the issue is not whether he owes appellee some money because of her services and those of her deceased husband, but whether he agreed to pay them the amount of $3,-000.00 for the same.

The strongest evidence relied upon by appellee to support an award in the amount of $3,000.00 is her own testimony to the effect that her husband started to work for appellant in March, 1957; that a Mrs. Allen, appellant’s office manager, who had been receiving $300.00 a month, decided to retire in about April, 1957, and that appellant told appellee that her husband was carrying on the work of Mrs. Allen; that appellee’s husband continued doing such work for appellant until his death in December, 1957; that, thereafter, appellant asked appellee to complete some income tax returns and accounting work. Appellee never testified that appellant expressly or impliedly agreed to pay a fixed amount for such services, either monthly or for the whole period of time.

The applicable rule herein is stated, in substance, in the case of O-W-R Oil Company v. Sowell, 82 S.W.2d 1099 (Tex.Civ.App.1935, writ dismissed). There, the plaintiff recovered judgment in the trial court based upon an agreement that he would receive an interest in certain oil and gas leases, but his evidence did not sufficiently establish the interest he was to receive. The Court of Civil Appeals reversed and remanded, holding:

“It is fundamental that a plaintiff, in order to recover, must prove a contract as alleged. The above evidence is possibly sufficient to create an implied obligation on the part of Roberts to pay the plaintiff in money for the reasonable value of his services, but it does not establish an agreement to give plaintiff an interest in the lease.”

Ware v. Poindexter Furniture and Carpet Co., 131 Tex. 568, 117 S.W.2d 420 (1938), is to the same effect.

No useful purpose will be served by further recitation of the evidence. The record is sufficient to support a finding that appellant agreed to pay the reasonable value of the services rendered by appellee’s husband and by her, but the basis for calculating the compensation owed, both as to rate of pay and time expended, particularly by appellee’s husband, is insufficient. A finding that appellant agreed to pay an amount of $3,000.00 for the services rendered would be so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant’s point one is overruled and his point two is sustained.

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


text:
    A. F. VOGT, Appellant, v. Charles B. JONES, Appellee.
    No. 16666.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 15, 1965.
    Pannell, Hooper, Steves & Kerry, and Winfred Hooper, Jr., Fort Worth, for appellant.
    Garrett & Garrett, and Rufus Garrett, Jr., Fort Worth, for appellee.
   MASSEY, Chief Justice.

By this appeal A. F. Vogt complains because he was unsuccessful in obtaining judgment sought below against Charles B. Jones. It was from a take nothing judgment that he appealed.

Judgment affirmed.

The cause of action sued upon was actually one which in many respects would be proper to consider as though it was a suit by the Tarrant County Water Control and Improvement District No. 1, hereinafter referred to as to the Water District. The Water District had entered into a dirt removal and construction contract with Jones, whereby the latter as “dirt contractor” obligated himself to perform certain earthenwork activities, on land acquired by the Water District pursuant to preparation of an “overflow spillway” at Eagle Mountain Lake.

In another contract, upon valid consideration entered into between the Water District and Vogt, the former purportedly assigned, unimpaired, to Vogt its rights existent in the contingent provision for the payment of liquidated damages in the event Jones failed to complete certain work within a specified time. Neither party to this assignment contract placed Jones on notice of the fact thereof until after the occurrence of the events upon which Vogt predicated his suit against Jones.

We believe that the law applicable to the situation posed by the appeal is well stated in Restatement of the Law, Contracts, Ch. 7, “Assignment of Rights and Delegation of Duties or Conditions”, Sec. 167, “Defenses and Set-offs to Which an Assignee’s Right Is Subject”, as follows:

“(1) An assignee’s right against the ob-ligor is subject to all limitations of the obligee’s right, to all absolute and temporary defenses thereto, and to all set-offs and counterclaims of the obligor which would have been available against the ob-ligee had there been no assignment, provided that such defenses and set-offs are based on facts existing at the time of the assignment, or are based on facts arising thereafter prior to knowledge of the assignment by the obligor.”

The liquidated damages for which the contract provided were to become due and owing by Jones to the Water District in the event the work in completion of Phase One of the entire contract was not fully performed by a certain date. In proceeding to discharge his duties under his contract with the Water District, Jones at all times treated it as the sole obligee. The delay in completion of Phase One was by agreement with the very individual or official designated by the Water District to have authority to authorize delays; indeed the delay was caused and occasioned upon the direction and recommendation of such person. He directed that Jones give priority to work under another phase of the total work project contemplated by the contract, leaving undone a material act of performance necessarily incident to conclude Phase One until the very last part of the performance period specified by the entire contract, as amended and extended.

Since the Water District was itself responsible for the delay in Jones’ completion of Phase One of the contract it would, of course, be unable to impose the liability for any payment of liquidated damages on account of the delay. As assignee Vogt would likewise be unable to impose such liability on Jones. See Connell Construction Co. v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311 (1958); 152 A.L.R. 1349, Anno.: “Liability of building or construction contractor for liquidated damages for breach of time limit where work is delayed by contractee or third person”.

By his point of error No. 6 Vogt complains and asserts error in the conduct of the trial in that the court, over objection, admitted such evidence establishing Jones’ excuse for his delay in completing Phase One. Trial was before the court without a jury. It is true that Jones went to trial on a general denial, only. Vogt contends that the evidence should not have been received on trial, nor considered in support of the judgment, because predicate therefor was not founded in Jones’ pleadings.

The record fails to support point of error No. 6. The objection to which Vogt refers had relation to testimony concerning action taken by Jones upon the request of Vogt. There was no evidence that said action extended the time necessary to perform the whole or any part of the construction contract. There is evidence, unchallenged, that it would have shortened the period necessary to complete the work. We hold that the objection did not extend to the evidence in the record which established that the delay of which Vogt complains was caused and occasioned by the individual or official designated to have authority to authorize such. There was no objection interposed when such evidence was tendered by Jones. The “running bill of exceptions” given Vogt when Jones was allowed to introduce evidence upon action taken at Vogt’s request did not extend to and include action occasioned by anyone other than Vogt. The point of error is overruled.

Other points of error are advanced. However, whether overruled or sustained none could have the effect of requiring reversal of the judgment below. The points are overruled as immaterial to the appeal.

Judgment is affirmed.


text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Mrs. Effie QUICK et vir, Appellees.
    No. 14421.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1965.
    Groce, Hebdon, Fahey & Smith, Ray A. Weed, San Antonio, for appellant.
    Carter, Callender & Onion, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from an order overruling appellant’s plea of privilege in a suit to recover damages allegedly sustained by Mrs. Quick when she slipped and fell on a ramp located on premises occupied by appellant. Venue was maintained in Bex-ar County under Subd. 9a, Art. 1995, Vernon’s Ann.Civ.Stats., after a non-jury trial. The primary question presented by this appeal is whether or not appellant breached any duty it owed to Mrs. Quick.

On the night of November 13, 1962, Mrs. Quick and her husband went to appellant’s retail grocery store which was located near their home in the City of San Antonio. While her husband was paying for the groceries, Mrs. Quick left the store and started down a ramp located in front of one of the doors of the store. This ramp, which was several feet wide, extended at about a thirty degree angle from the parking area to a concrete sidewalk, six to nine inches high, which went around the store building. When Mrs. Quick stepped on the ramp, her foot slipped and she fell on her back.

It is settled law that the defendant occupier owed the duty to Mrs. Quick as an invitee to keep the premises in a reasonably safe condition. This included the duty to inspect and to discover dangerous conditions. Its duty was to protect its invitees from dangers of which it, the occupier knew, or (because of its duty to inspect) should have known, in the exercise of ordinary care. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Justice Greenhill, Assumption of Risk, Vol. XVI Baylor Law Review 111. Under the “no duty” doctrine a plaintiff invitee ordinarily cannot recover if she knows of the condition and realizes and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Huvar v. Rex Corp. of San Antonio, Tex.Civ.App., 387 S.W.2d 82, no wr. hist.

Appellant urges that this ramp was seen by Mrs. Quick prior to her fall and that the dangers incident to use of the ramp were open and obvious to her. In Contreras v. H. E. Butt Grocery Co., 328 S.W.2d 469, wr. ref., this Court held that where every condition which existed with respect to the ramp was open and obvious to and understood by Mrs. Contreras before she knowingly walked upon the ramp, a summary judgment was properly granted for the defendant store.

The testimony of Mrs. Quick is distinguishable from that in the Contreras case, supra. Mrs. Quick testified that, although the ramp looked all right, there was a slick place near the center of the ramp and that this place, which was as slick as glass, caused her to fall. There was testimony that the ramp which had been constructed of asphalt material in 1953 had become slick in this place through continual operation of grocery carts on same. Mrs. Quick’s daughter, who examined the ramp the morning after her mother’s fall, testified that there was an area near the center of the asphalt ramp which was worn down slick as glass. This slick area was discovered by her when she rubbed the ramp with her foot.

Mrs. Quick denied using this ramp prior to her fall, and denied any prior knowledge of the slick place on the ramp. The accident occurred after dark and the lights were behind her as she started down the ramp.

The trial judge in overruling defendant’s plea of privilege impliedly found that Mrs. Quick did not have knowledge, realization and appreciation of the dangerous condition created by the slick place on the ramp prior to the time of her fall. We cannot say from this record that Mrs. Quick was charged with such knowledge, realization and appreciation as a matter of law.

The judgment is affirmed.