author: MURRAY, Chief Justice. BARROW, Justice.

text:
    The STATE of Texas, Appellant, v. V. E. BERRY et ux., Appellees.
    No. 14303.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1964.
    Rehearing Denied Jan. 13, 1965.

      Waggoner Carr, Atty. Gen., T. B. Wright, Carroll R. Graham, Asst. Attys. Gen., Austin, for appellant.
    Park Street, James K. Gardner, San Antonio, for appellees.
   MURRAY, Chief Justice.

The State of Texas, acting by and through the Attorney General, brought this condemnation case under the provisions of Art. 3264 et seq., Vernon’s Ann.Civ.Stats., against V. E. Berry and wife, Lydia J. Berry, of Bexar County, Texas, to condemn the fee simple title, save and except the oil, gas, sulphur and other minerals, to 10.665 acres of land out of a larger tract abutting upon Highway 90 East in the City of San Antonio, Bexar County, Texas. The tract to he used as a right of way in constructing and converting Highway 90 East into Interstate Highway 10.

The defendants admitted that the State had the right to condemn, that all prerequisites had been complied with, waived any damages to their remainder, and hence the only issue litigated was the market value of the tract acquired.

The market value of the tract being acquired in this cause was submitted to the jury. Based upon the verdict of the jury, the County Judge of the County Court at Law No. 3, of Bexar County, Texas, rendered judgment in the sum of $181,051.20, from which judgment the State of Texas has prosecuted this appeal.

By its first three points the State presents the contention that its motion for a new trial should have been granted by the trial court, because it was reversible error for the witness James K. Gardner, Esq., one of the attorneys for appellees, while testify-. ing on behalf of his clients, to state to the jury, in effect, that the award of the special commissioners was the sum of $190,-000.00; and especially was this error because the witness was prompted to give this answer by one of appellees, V. E. Berry. The trial judge overruled the motion of appellant for a mistrial, made immediately after the witness had given this testimony.

Appellees contend that there was no reversible error because such testimony was elicited and invited by appellant, the jury were instructed by the court to disregard and not consider such testimony, and further, that the testimony was harmless.

The record shows that the following took place during the trial, while James K. Gardner was testifying on cross-examination:

“Q What is the fee, you and Park Street, for this case?
“A I will say I don’t know.
“Q You do not know?
“A An explanation of that, Mr. Wright, I am on a salary basis with Mr. Street, and I don’t know what the fee is with Mr. Berry.
“Q I see. It is—
“A Let me say this, in explanation, that whatever the fee is does not affect my salary, in that I am on a straight salary basis. For that reason I have no interest and not a party to an assignment or contract in any way with Mr. Berry.
“Q Would you run down and ask Mr. Street what that contract amount is, how much he is going to get out of this case, what percentage of the take?
“A Will I run down and ask him?
“MR. STREET: Don’t run. You might fall.
“Q Will you come over here and tell the jury what this means to Mr. Street for you to testify? Would ' you like to tell them that?
“A If the Court will permit that, on hearsay, I will be glad to do it.
“MR. STREET: I will state now he won’t have to run, because I need him. He is my brains. I hope to be paid a fair fee.
“Q All right, sir. And would that be a percentage of the increase over the state’s testimony or the offer to the land owner; is that not the general practice in condemnation in Park Street’s office?
“MR. BERRY: Over the commissioners.
“MR. WRIGHT: Well, if he is—
“A It goes this way, Mr. Wright. It would be a percentage, if any, over the commissioners’ award of $190,000.
“MR. WRIGHT: All right, if the Court please, we move for a mistrial right now.
“MR. GARDNER: Your Honor, may it please the Court, Mr. Wright has asked for that as a basis of ■ the fee.
“MR. WRIGHT: If it please the Court, we move for a mistrial in this case at this time.
“THE COURT: Counsel, it appears to the Court I may have to grant it. I don’t know if I will. I am going to recess until 1:45.
“MR. BERRY: He asked for it.
“THE COURT: Ladies and gentlemen of the jury panel, remember the instructions that I have heretofore given you. Come back to the jury box at 1:45.”

The opinion evidence concerning the market value of the property being acquired in this proceeding offered by appellant was as follows: “Nelson Cory, Jr., $98,500.00; Willis A. Porter, $114,474.00; Raymond R. Parker, $100,000.00;. and Geo. A. French, $127,980.00.”

The opinion evidence offered by appel-lees was as follows: “Burt L. Joiner, $240,- • 000.00; Bert C. Fry,-$232,283.50; and R. N. White, Jr., $248,945.40.- The Award of the . Special Commissioners was $190,814.00.”

The trial court held the witness to be in • contempt of court and fined the attorney '■$100.00 and one day in jail for stating the : amount of the special commissioners’ mward.

There are many cases holding that the amount of the award of the special commissioners is not admissible in evidence on an appeal from such award to the County Court, and where admitted by the trial court in evidence over the objection of the opposing party it sometimes constitutes reversible error. Schwab v. County of Bexar, Tex.Civ.App., 366 S.W.2d 952; State v. Kimbauer, Tex.Civ.App., 365 S.W.2d 201; Hill v. State of Texas, Tex.Civ.App., 289 S.W.2d 801; City of Corpus Christi v. MaGee, Tex.Civ.App., 285 S.W.2d 236; Chandler v. Bexar County, Tex.Civ.App., 258 S.W.2d 439; Lower Colorado River Authority v. Burton, Tex.Civ.App., 170 S.W.2d 783; Giersa v. Dennison & P. S. Ry. Co., Tex.Civ.App., 45 S.W. 925.

Here the trial court promptly instructed the jury not to consider the evidence and fined the witness $100.00 and one day in jail for giving the evidence. The award of the jury was more than $8,000.00 less than the award of the commissioners and was far below what the evidence offered by appellees would have supported. We conclude, that under the .provisions of Rule 434, Texas Rules of Civil Procedure, ■the trial court did not abuse its discretion -in overruling appellant’s first motion to de-miare a mistrial. Schwab v. County of Bexar, supra; City of Corpus Christi v. MaGee, supra; Hatchett v. State, Tex.Civ.App., 211 S.W.2d 771.

By Points 4 arid 5 appellant con-'" tends that the trial court committed reversible error in not sustaining its second motion for a mistriál filed afte-r the closing argument of appellees’ counsel Park Street, and after the jury had retired to consider its verdict,' but before the jury had rendered its verdict; the motion reading as follows:

“The attorney for the defendants in his closing argument made unwarranted, personal attacks of a vicious nature upon the State’s witnesses, which attacks were wholly unwarranted by anything contained in the record in this case; made vicious personal attacks upon the counsel for the State, which attacks were wholly unwarranted by anything in the record in this case; and further, the counsel for the defendants in his closing argument brought new evidence before the jury in his argument on at least nine different occasions by testifying, in effect, during the course of his final argument.
“Wherefore, premises considered, the plaintiff prays that the Court recall the jury before it has returned a verdict and declare a mistrial in this cause and discharge the jury because of the attacks and testifying done by counsel for the defendants, in. his closing argument.”

This motion came too late. Texas Employers Ins. Co. v. Haywood, 153 Tex. 242, 266 S.W.2d 856. Appellant further contends that the trial court also committed reversible error in overruling appellant’s amended motion for a new trial based upon the same alleged improper argument. We overrule these contentions. Appellant has set out in its brief some ten pages of the argument complained of, together with its objections made at the time of the argument. It would serve no useful purpose to here copy all of such argument. . Appellant’s objections relate principally to the fact that counsel for appellees was getting out of the record. The trial court sustained, in effect, each one of these objections and admonished appel-lees’ counsel to stay within the record, which counsel promised to try to do. Appellant’s counsel did not press any of these objections to the extent of asking the court to instruct the jury to disregard the argument. We have read this argument, and while some of it was improper and unjustified, it was not of such an “incurable” nature that its harmful effect could not have been corrected or rendered harmless by proper instructions from the trial court to the jury, or a retraction by the counsel. The rule in this regard is well stated in Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, as follows:

“If the argument is of such a nature or is made under such circumstances that if objection is made at the time so that counsel can offer an explanation or make such corrections as will make such argument proper or harmless, or if the argument is of such a nature that its withdrawal by counsel or instruction by the court to the jury to disregard same will cure the error and render the effect of the argument harmless, the complaining party must object to such argument and request the court to instruct the jury not to consider same; and failure so to do waives the error.”

In 56 Tex.Jur.2d p. 673, § 317, it is stated: “An objection to argument must be pressed to the point of procuring a ruling, or the objection is waived.” Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Traders & General Ins. Co. v. Vaughn, Tex.Civ.App., 317 S.W.2d 800; Harris County Flood Control Dist. v. Cohen, Tex.Civ.App., 282 S.W.2d 917. There are exceptions to this rule, such as when an appeal to national or race prejudice is made in an argument. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Basanez v. Union Bus Lines, Tex.Civ.App., 132 S.W.2d 432, no writ history.

We are unable to say that the argument complained of was of such a nature as would have persuaded a juror of ordinary intelligence to agree to a verdict contrary to one he would have agreed to but for such argument. Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404; Pacific Employers Ins. Co. v. Guillary, Tex.Civ.App., 310 S.W.2d 584; McCorstin v. Mayfield, Tex.Civ.App., 274 S.W.2d 874.

By its points Nos. 6 and 7, appellant contends that the verdict of the jury in answer to Issue No. 1 is so against the great weight and preponderance of the evidence as to be manifestly wrong, and that the judgment based thereon is so grossly excessive as to require a remittitur in at least the sum of $55,000.

The issue and answer complained of reads as follows:

“From a preponderance of the evidence what do you find was the market value on September 13, 1962, of Defendants’ tract of land condemned by the State of Texas for highway purposes? Answer in dollars and cents-
“We, the jury, answer: $181,051.20”'

We have examined the evidence and find that it amply supports the verdict, and that the amount found by the jury is not excessive. We overrule points Nos. 6 and 7.

The judgment is affirmed.

BARROW, Justice.

I concur that the State has failed' to show that the argument complained of was such that prejudice could not have been eliminated or cured by retraction or instruction by the trial court upon timely objection or motion by State. Therefore, reversible error is not shown. Texas Sand Co. v. Shield, 381 S.W.2d 48 (Tex.1964) ; Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 355 (1954).

It should be observed, however, that unwarranted personal attacks upon opposing counsel as complained of by State in this case are highly improper. See 96 A.L.R.2d 9. Rule 269, Sec. (e), T.R.C.Pl, provides the trial court with authority to’prevent personal criticism of opposing counsel. It would seem that Sec. (g) of this rule, directing the trial court to correct improper argument of counsel without an objection, is particularly appropriate to prevent personal abuse of opposing counsel.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Henry THORNELL, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellee.
    No. 7604.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 24, 1964.

      James Haltom, Wheeler, Watkins, Hub-hard & Patton, Texarkana, for appellant.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   FANNING, Justice.

Appellant sued appellee insurance company for recovery of proceeds under group policies of insurance issued by appellee to appellant’s former employer, Day and Zimmerman, Inc. The policies in question provided certain benefits for non-occupational injuries and illnesses. Appellee in its pleadings alleged that appellant’s coverage ceased automatically at the time of the termination of his employment with said ■employer, and that on the date of such termination appellant was not totally disabled and had not incurred any of the medical expenses for which Thornell’s suit was brought.

Appellee filed requests for admissions •under Rule 169, Texas Rules of Civil Procedure, and appellant filed its response thereto within the time prescribed by said rule. The appellant in such written response made certain admissions, which will Tiereinafter be discussed in more detail.

Appellee filed its motion for summary judgment, based on the supporting affidavit, pleadings, interrogatories, and admissions on file. Appellant in opposition to said motion filed controverting affidavits which appellant contends “more fully explained the Response to the Request for Admissions”. Appellee contends that appellant’s controverting affidavits instead set forth facts tending to contradict the admissions, and that such controverting affidavits were not admissible and should not be considered.

The trial court granted appellee’s motion for summary judgment and appellant has appealed.

Appellant presents one point on appeal, which reads as follows: “The Trial Court erred in granting Summary Judgment because the affidavits offered by the Appellant in opposition to the Motion for Summary Judgment show the existence of a genuine issue of fact as to whether or not the appellant, Henry Thornell, was totally disabled on the date of his termination from work, and as to whether or not the appellant was then going to any doctor for any injury or sickness”.

Appellee contends that appellant’s response to appellee’s request for admissions under Rule 169, T.R.C.P., disposed of every material fact in appellee’s favor, entitling appellee to a summary judgment

Individual certificate No. 11728-A, certifying appellant’s coverage under group policies Nos. 11318-W and 11318-H, reads in part as shown below.

Appellee in its brief states the gist of the pertinent admissions made by appellant and makes a brief comment on a portion thereof. We quote in part from appellee’s brief in this connection as shown below.

The record further shows that appellant did not enter the hospital until November 12, 1962.

Appellant did not make any motion requesting the trial court for leave to amend any of his responses to the request for admissions. This avenue of procedure was not invoked and appellant elected to oppose appellee’s motion for summary judgment with controverting affidavits.

Appellant’s controverting affidavits have been carefully considered and it is our conclusion that such affidavits contradict the prior written admissions made by appellant on material and controlling matters.

A fact admitted in response to a request for admission under Rule 169, T.R.C.P., if and when it becomes a part of the record, is a judicial admission. Also a failure to answer a request, if it is one the requesting party has a right to have answered, or an evasive answer, constitute a judicial admission of the matter inquired about. A judicial admission is one which as long as it remains in the case is a conclusive admission. Masterson, Adversary Depositions and Admissions Under Texas Practice, 10 S.W.L.J. 107 (1956).

In Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, writ refused (1942) it was stated in part as follows:

“There are perhaps conditions under which a party would be heard in court to deny statements and admissions previously made by him against interest, but we think the effect of Rule 169 is comparable to a legal admission made in the applicable pleadings of a party, which will admit of no denial by him. * * * But we conclude that the contradictory testimony of defendant should not have been admitted, since his legal admissions of the truth of the material matters before the court preclude him from doing so.”

In Frierson v. Modern Mutual Health & Accident Insurance Company, Tex.Civ.App., 172 S.W.2d 389, wr. ref., w. m. (1943) it was stated in part as follows: .

“The aforesaid request for the admission of the truth of relevant facts made by appellee of appellants was comprehensive, and in our opinion, there was embraced therein every issuable fact tendered by appellee’s pleadings. * * * It has been held that the effect of a party’s failure to answer inquiries in adverse party’s written request for admission or denial of relevant facts made under Rule 169 is comparable to a ‘legal admission’ made in the applicable pleadings of a party, so as to preclude his denial of such facts on the trial of the case. * * * Therefore, the legal effect of the appellants’ failure to answer appellee’s inquiries in its written request for admission or denial of the truth of relevant facts, in compliance with Rule 169 supra, was, in our opinion, to present this case to the trial court on an agreed statement of facts insofar as appel-lee’s cause of action was concerned. This statement of facts established in favor of appellee every fact tendered by its pleadings. Therefore, it was the duty of the trial judge to apply the law to the facts so established and render judgment accordingly.”

In Weaver v. Weaver, Tex.Civ.App., 171 S.W.2d 898, error ref., w. m., it was stated in part as follows:

“The defendants did not answer such request for admissions of fact. Plaintiff objected to the admission of any evidence tending to disprove the facts requested to be admitted. Defendants’ failure to answer the request for admissions- of fact compels us to treat such facts as admitted by defendants, and to hold that any evidence to the contrary is of no effect.”

In Maze v. Ruscher, Tex.Civ.App., 269 S.W.2d 860, no writ (1954), where express admissions made-under Rule 169, T.R. C.P., as to the residence of a party to the suit, were sought to be overcome by testimony, the court held that this could not be done.

Express admissions 'made pursuant to Rule 169, T.R.C.P., are as determinative of issues as admissions resulting from a failure to answer the request for admissions. In this connection see the following authorities: Howard v. Western Chevrolet Company, Tex.Civ.App., 372 S.W.2d 378, writ dism. (1963) ; Fuller Nurseries & Tree Service v. Jones, Tex.Civ.App., 253 S.W.2d 946, no writ (1953); Provident Life and Accident Insurance Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805 (1949).

An admission made - pursuant to Rule 169, T.R.C.P., is of a higher dignity than testimony; such 'an admission is the same as an admission made in the applicable pleadings of the party. Masten v. Masten, supra. An admission in pleadings cannot be contradicted by evidence until the pleading is withdrawn by amendment. 2 McCormick and Ray, Texas Law of Evidence, 24-25. In this connection also see Masterson, Adversary Depositions and Admissions Under Texas Practice; 10 S.W.L.J. 107, 126-127 (1956), wherein it was stated in part as follows:

“In connection with summary judgment proceedings, there is an important difference between relying upon depositions, other than ex parte depositions which have not been answered evasively, on the one hand, and admissions under Rule 169 or ex parte depositions which have not been answered or have been answered evasively on the other. This is because, as heretofore pointed out, express answers to an ex parte deposition, or to a witness deposition are evidentiary only, whereas admissions under Rule 169, and no answers or evasive answers under Rule 188, constitute judicial admissions and hence cannot be contradicted, unless and until they are withdrawn from the case.”

We think that the insurance certificate provisions hereinbefore quoted demonstrate that appellant could recover under the policies sued upon only if (1) on November 2, 1962, the termination date of appellant’s said employment, he was “totally disabled by bodily injury or disease so as to be continuously prevented from engaging in any occupation for compensation or profit”; and (2) “while so disabled” appellant entered the hospital or was operated upon by a qualified physician.

As hereinbefore shown, appellant under Rule 169, T.R.C.P., expressly admitted that on November 2, 1962, he had no illness or injury which would prevent him from working at his former job or a similar job and was not going to any doctor for any injury or sickness. Appellant further expressly admitted that on Nov. 5, 1962, he was able to work and available to work. We think these admissions (which were not later withdrawn or later amended under leave of the trial court) were judicial admissions and remained so and could not be contradicted by either testimony or controverting affidavits, and such judicial admissions remaining in the case precluded a recovery by appellant.

We hold that the trial court correctly granted appellee’s motion for summary judgment.

The judgment of the trial court is affirmed.

      . “TERMINATION: The insurance of any Employee under a Group policy shall cease automatically upon the occurrence of any of the following events: (a) the termination of the policy, (b) the cessation of premium payments on account of the Employee’s insurance thereunder, (c) the termination of his employment in the classes of Employees insured thereunder.”

      “EXTENDED INSURANCE BENEFITS. A. If any Employee’s insurance is terminated for any cause, and if such

        Employee at the date as of which his insurance ceased shall have teen totally disabled by bodily injury or disease so as to be continuously prevented from engaging in any occupation for compensation or profit and while so disabled shall, within three months have been (1) confined to a legally constituted and operated hospital for at least eighteen hours, or (2) operated upon by a legally qualified physician, the Society will pay to such Employee the same benefits subject to the same limitations and provisions as though such hospital confinement had commenced, or such operation had been performed, while the Employee was insured under the policy. (Emphasis added).”

      . “In response to requests for admissions filed by Appellee pursuant to Rule 169, Texas Rules of Civil Procedure, Appellant admitted, inter alia, the following:
      “1. Appellant was employed as a painter .by Day and Zimmerman, Inc. at its Lone Star Ordnance Division in Tex-arkana, Texas, on April 9, 1962.
      “2. On November 2, 1962, Day and Zimmerman, Inc. terminated Appellant’s employment by virtue of a reduction in work force.
      “3. Contemporaneously with the termination of employment, Appellant executed a document labeled ‘Termination Statement’.
      “4. In executing the termination Statement, Appellant represented that he had no illness or injury that would prevent him from working at his former job or a similar job if he should be recalled.

        “5. Appellant represented in his Termination Statement that he was not going to any doctor for any injury or sickness at the -date of his termination.
      “6. On November 5, 1962, Appellant filed a claim for unemployment compensation benefits with the Texas Employment Commission.
      “7. In the claim for unemployment compensation benefits, Appellant represented that he was able to work.
      “8. In the claim for unemployment compensation benefits, Appellant represented that he was available for work.
      “9. The representations in Appellant’s Termination Statement were thought to be true and correct at the time they were made but subsequent developments caused the answers to questions numbered 3A and G to be incorrect (Tr. pgs. 106-107). (Questions 3A and G in the Termination Statement referred to ‘Injury or illness caused by your work here’, i. c., occupational disabilities not covered by the policies involved in this suit. (Tr. p. 100). Appellant, therefore admitted that his representations that he had ‘no illness or injury that would prevent him from working at his former job or a similar job’ and that he was not ‘going to any doctor for any injury or sickness’ were true and correct).
      “10. The representations made in the claim for unemployment compensation benefits were true and correct.”


author: NORTHCUTT, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Marvin Dale JOHNSON, Appellee.
    No. 7415.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1964.
    Naomi Harney, County Atty., and Nolan K. Read, Asst. County Atty., Amarillo, for appellant.

      Clayton, Kolander, Moser & Templeton, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a summary judgment case involving a license appeal.

Appellee, Marvin Dale Johnson, timely appealed to the County Court at Law, Potter County, Texas, under Article 6687b, Section 22(c) and 31, Texas Revised Civil Statutes, from an order suspending all operator’s, commercial operator’s, and chauffeur’s license issued appellee by the Texas Department of Public Safety, which order in turn was based upon an affirmative finding by the Judge of the Corporation Court, Amarillo, Potter County, Texas, that appellee was an “habitual violator” as defined in Article 6687b, Section 22(b) 4, Texas Revised Civil Statutes. Subsequent to the filing of this appeal the Texas Department of Public Safety, appellant herein, filed its answer and motion for summary judgment alleging ap-pellee to be an “habitual violator” by virtue of Article 6687b, Section 22(b) 4, Texas Revised Civil Statutes. Attached to appellant’s motion for summary judgment were six purported certified notices of conviction, a copy of appellee’s purported public driving record properly authenticated by the Supervisor of the Records Division of the Department of Public Safety, a properly certified copy of the Department’s order of suspension issued appellee, and an affidavit by the Deputy Custodian of Driver Records, Driver and Vehicle Records Division, Texas Department of Public Safety.

Appellee countered with his motion for summary judgment supported by his affidavit contending he had never been convicted of any of the moving violations as contended by the appellant since he had never appeared before the judge and did not appear by an attorney but paid fines by paying at the fine window of the Corporation Court, Amarillo, Potter County, Texas.

Upon a hearing before the County Court at Law in and for Potter County, Texas, the court entered its summary judgment stating after examining the pleadings, affidavits, and hearing argument of the parties, the court found that plaintiff, appellee here, was entitled to summary judgment and ordered that the prayer of defendant, appellant here, for the suspension of appellee’s operator’s license and driver’s privileges be in all things denied. From that judgment appellant perfected this appeal.

Appellant presents this appeal upon nine points of error contending the court erred in overruling appellant’s motion for summary judgment; in sustaining appellee’s motion for summary judgment; in holding the alleged violations of wrong way on a one-way street was not a conviction; in holding the alleged violation of speeding was not a conviction; in holding the alleged violation of no license plate was not a conviction; in holding the alleged violation of left turn into private drive in Center Business District was not a conviction; and in not holding that this record presented issues of fact that should have been submitted to the court or jury in a trial de novo.

The six notices of conviction mailed to the Driver’s License Division of the Department of Public Safety which was the basis of the cancellation of appellee’s driver’s license was certified by the “Chief Clerk.” These notices gave the name and address of the appellee, the number of his driver’s license, the nature of the offense, and the penalty. The notices did not give the registration number of the vehicle involved, the date of hearing, the plea of appellee, nor the judgment other than to state “Convicted” and giving the date.

Section 152 of Article 6701d provides as follows:

“Convictions to be reported to Department”
“Sec. 152. (a) Every magistrate or judge of a court not of record and every clerk of a court of record shall keep a full record of every case in which a person is charged with any violation of this Act or of any other law regulating the operation of vehicles on highways. '
“(b) Within ten (10) days after conviction of forfeiture of bail of a person upon a charge of violating any provision of this Act or other law regulating the operation of vehicles on highways, every said magistrate of the court or clerk of the court of record in which such conviction was had or bail was forfeited shall prepare and immediately forward to the department an abstract of the record of said court covering the case in which said person was so convicted or forfeited bail, which abstract must be certified' by the person so required to prepare the same to be true and correct.
“(c) Said abstract must be made upon a form furnished by the Department and shall include the name and address of the party charged, the number, if any, of his operator’s, commercial operator’s, or chauffeur’s license, the registration number of the vehicle involved, the nature of the offense, the date of hearing, the plea, the judgment, or whether bail forfeited and the amount of the fine or forfeiture as the case may be.
“(d) Every court of record shall also forward a like report to the department upon the. conviction of any person of negligent homicide or any felony in the commission of which a vehicle was used.
“(e) The failure, refusal, or neglect of any such judicial officer to comply with any of the requirements of this Section shall constitute misconduct in office and shall be grounds for removal therefrom.
“(f) The'department shall keep all abstracts received hereunder at its main office.”

It is provided in' Section 152 that the magistrate (corporation judge here involved) “of the court * * * in which such conviction was had * * * shall prepare * * * an abstract of the record of- said court covering the case in which said person was so convicted * * * which abstract must he certified by the person so required to prepare the same to he true and correct.” Said section then provides certain things shall be included in the abstract. (Emphases ours.) The judge of the corporation court did not certify the abstract required but the same was certified by Maxine Webster, Chief Clerk'. The corporation court is not a court of record. Ex Parte Hayden et al., Tex.Cr.App., 215 S.W.2d 620.

. It is appellee’s contention- the court did not err in overruling appellant’s-motion for summary judgment; did not err in sustaining appellee’s motion for summary judgment ; and that the court did not err in not holding the record presented issues of fact that should have been submitted to the court or jury in a trial de novo. The ap-pellee further contended the Department of Public Safety failed to sustain their burden of proof as required by Article 6701d, Sec. 152(c) of Vernon’s Annotated Civil Statutes.

We are of the opinion, and so hold, that the Supreme Court has held contrary to appellee’s contention .and sustains appellant’s contention that it was entitled to summary judgment in the cases of Texas Department of Public Safety v. Richardson, Tex., 384 S.W.2d 128 and Texas Department of Public Safety v. Miller, Tex., 386 S.W.2d 760 and that such holdings are binding on this court.

Accordingly, the judgment of the County Court at Law in and for. Potter County, Texas, is reversed and rendered.

CHAPMAN, J., not participating.


author: CHAPMAN, Justice.

text:
    Mary A. WATKINS, A Feme Sole, Appellant, v. SOUTHCREST BAPTIST CHURCH, Appellee.
    No. 7424.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1964.
    Rehearing Denied Jan. 18, 1965.
    A. W. Salyars, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   CHAPMAN, Justice.

Appellant, Mary Watkins, filed suit against Southcrest Baptist Church of Lubbock, Texas, for personal injuries suffered in a fall in the church building which she alleged was caused by an excessively slick floor.

In its pleading appellee alleged it was a charitable and religious corporation immune from tort liability. It then filed its motion for summary judgment alleging the same and attached thereto a certified copy of its charter on file with the Secretary of State showing it to be a non-profit corporation organized for “the support of public worship.” The motion for summary judgment was filed on August 22, 1963, and appellant filed its First Amended Original Petition on August 26, thereafter, her only summary judgment component upon which the motion was heard by the court.

Appellant urges reversal on a group of points under which she contends that the law in Texas is based on an erroneous theory and cites cases from some twenty-one other jurisdictions holding to the contrary. She relies strongly on the reasoning and holding of President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810.

Since December 1943 the rule in Texas has been that charity corporations are immune from liability for the torts of their agents in the absence of negligence in employing or keeping such agents, whether the injured party be a beneficiary of the trust or a stranger to it, since the result to the charity would be the same in either case. Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749; Sandone v. Dallas Osteopathic Hospital, Tex.Civ.App., 331 S.W.2d 476 (N.R.E.); Baptist Memorial Hospital v. McTighe, Tex.Civ.App., 303 S.W.2d 446.

In its opinion in the case of Southern Methodist University v. Clayton, just cited, our Supreme Court took note of the case of President and Directors of Georgetown College v. Hughes, supra, but refused to follow it.

Appellant contends that the rule in Southern Methodist University v. Clayton, supra, was not intended to be applicable in a case such as this one because the church in this case carried public liability insurance. In Baptist Memorial Hospital v. McTighe, supra, the Baptist Memorial Hospital carried indemnity insurance against just such injuries as the one in the instant case.

The El Paso Court of Civil Appeals in the case of Baptist Memorial Hospital v. McTighe, supra, held:

“The appellee caused to be introduced in the absence of the jury, an indemnity insurance policy purporting to protect the defendant from having to pay damages for an accident such as this. We have not found any authority in Texas (although some other courts have made the distinction) where the presence of an insurance policy caused any change in the liability or immunity of a charity institution. We do not feel that there is any escape from the holding and implication of the Clayton case, and we must hold that it is decisive of the case on appeal here. Southern Methodist University v. Clayton, supra; Vermillion v. Woman’s College of Due West, supra; *

The El Paso Court wrote upon only one of the eleven points raised by appellant in that case; i. e., if recovery could be had against a charitable organization which carried indemnity insurance such as in the instant case. The Supreme Court refused a writ n. r. e., which indicates to us it is adhering to the rules announced in Southern Methodist University v. Clayton, supra, and Vermillion v. Woman’s College of Due West, 104 S.C. 197, 88 S.E. 649, even though a charitable institution carries insurance indemnifying against just such accidents and resultant injuries as those in the McTighe case and the instant case.

Appellant cites a case from the Court of Appeals from the State of Georgia (not the Supreme Court of that State) which furnishes strong argument in favor of the contention she makes in this case for recovery at least to the amount of the insurance policy. There is good reasoning in that case. Also, we are quite conscious of the fact that the rule of stare decisis is not an iron-bound rule. However, the Supreme Court had an opportunity to modify the rules of the Southern Methodist University v. Clayton case in the McTighe case where indemnity insurance was carried by the Baptist hospital. They refused to do so and we would feel presumptions to hold • otherwise in the face of the jurisprudence of this state definitely established in the cases cited. If the Southern Methodist University v. Clayton rule is to ever be modified in Texas where public liability insurance is involved, we feel it is for the Supreme Court to modify it and not for an intermediate appellate court to do so.

Accordingly, the judgment of tire trial court is affirmed.

      . There the claimant slipped and fell while entering the ladies’ restroom of the hospital where the floor was higher than the hall from which she was entering, whereas in our case appellant slipped on an allegedly excessively slick floor.

      . Ricks v. Smith, 159 Tex. 280, 318 S.W.2d 439; Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565.


author: COLLINGS, Justice.

text:
    ROBINSON DRILLING COMPANY, Appellant, v. Clifton N. THOMAS, Appellee.
    No. 3898.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 11, 1964.
    Rehearing Denied Nov. 27, 1964.

      R. H. Ratliff, Colorado City, Rosser & Carroll, W. James Rosser, Snyder, for appellant.
    Park, Hemphill & Adams, David D. Adams, Snyder, for appellee.
   COLLINGS, Justice.

This is a damage suit brought by Clifton N. Thomas against Robinson Drilling Company. Plaintiff alleged that he was the owner of a quarter section of land in Scurry County and engaged in the actual cultivation and farming of said land; that the defendant is and was the owner at times material hereto of an oil, gas and mineral lease covering said land and operates same for the production of oil and gas. Plaintiff alleged and set out six independent claims of damages to his land occurring at different locations thereon from October, 1961, to January 1963. At the close of the evidence, defendant filed a motion for an instructed verdict, which was overruled. The court then submitted the case to the jury on special issues and, based upon the verdict, judgment was rendered for the plaintiff in the sum of $1,000.00 The defendant’s amended motion for new trial was overruled by operation of law and the defendant has appealed.

The special issues, upon which the judgment was based among others, were as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that the defendant, through its agents, servants and employees, permitted oil to escape from its Woodward Well No. 3, while servicing it in October of 1961 ? Answer: Yes.”

In answer to issues 2 through 5 the jury found that such action of the defendant constituted negligence proximately causing permanent damage to appellee’s land, and that by such action appellant used more land than was reasonably necessary in conducting its operations on the land.

“Special Issue No. 19: Do you find from a preponderance of the evidence that the defendant, through its agents, servants or emploj^ees, cut the firewall around the defendant’s tanks in the N/2 of the NW/4 of Section 141, and permitted oil and waste to escape upon the plaintiff’s land? Answer: Yes.”

In answer to special issues 20 through 23 the jury found that such action of the defendant constituted negligence proximately causing permanent damage, to ap-pellee’s land, and that by such action appellant used more land than was reasonably necessary in conducting its oil operations on said land.

““Special Issue No. 25: Do you fiad •from a preponderance of the evidence -.that defendant, through its agents, - ■ servants or employees, failed to replace •the firewall after installation of its •storage tanks at that part of that lease • designated by defendant as Thomas A & B? Answer: Yes.”
'“Special Issue No. 27: Do you find from a preponderance of the evidence •that plaintiff’s land was permanently ■ damaged for farming purposes on account of oil and water flowing from these tanks, if you have so found? Answer: Yes.”

In answer to issues 26 through 29 the 'jury found that such action of the defend•ant constituted negligence proximately ■causing permanent damage to appellee’s land, and that by such action appellant •used more land than was reasonably necessary in conducting its oil operations on the land.

In answer to special issue 30-A the jury found that on January 24th, 1963 and at ■times thereafter the shipping line extending south from a tank battery on the south part •of appellee’s land was owned, controlled, .and maintained by appellant Robinson Drilling Company.

“Special Issue No. 31: Do you find from a preponderance of the evidence that defendant, through its agents, servants, or employees, reburied a rusted shipping line on plaintiff’s land prior to the break on or before January 24. 1963? Answer: Yes.”

In answer to special issues 32 through 35 ■the jury found that such action of the defendant constituted negligence proximately •causing permanent damage to appellee’s land, and that by such action appellant ■used more land than was reasonably necessary in conducting its oil operations on the 'land. Appellant’s first four points complain of .the submission of issues 19, 25, 27 and 31 to the jury and urge that the court erred in «overruling its objections thereto because each assumes as- a fact, a controverted issue and, therefore,. constitutes a comment on the weight and credibility of the evidence.

In regard to special issue number 19, appellant contends that appellee Thomas by his pleadings undertook the burden of proving not only, .that appellant cut the firewall in question but also that salt water and waste were released from the-firewall onto appellee’s ■ farm land. Appellant contends that issue number 19 assumed a- controverted fact issue, that is, that salt water and waste were contained within the firewall at and prior to the time it was cut. An affirmative answer to special issue number 19 would, of course, require a finding that salt water and waste were within the firewall at the time the firewall was cut. However, such fact issue was preliminary, and evidentiary to the ultimate issue inquired about in special issue number 19, that is, whether appellant cut the firewall and thereby permitted oil and waste to escape onto appellee’s land. The assumption of such fact in the issue complained of, even if it should be held error, was not reversible error because the effect of the manner of submission was merely to place an additional burden upon appellee. Columbia Casualty Company v. Combs, Tex.Civ.App., 188 S.W.2d 1015.

Special issues 25 through 27 are concerned with whether appellant failed to replace the firewall after installing storage tanks at a part of the lease designated as Thomas “A and B”, whether such failure was negligence and whether appellee’s land was permanently damaged for farming purposes on account of oil and salt water flowing from such tanks. Appellant contends that special issue number 25 was objectionable for the reason that it was a comment upon the weight and credibility of the evidence in that it assumed that the firewall was removed and ■ required replacement. The material question here inquired about involved the alleged failure of appellant to replace the firewall after installation of its storage tanks on that portion .of the lease. The question whether the firewall was removed was likewise preliminary and evidentiary to the controlling issue. It was not reversible error to assume that fact in inquiring whether appellant had failed to replace such firewall.

Special issue number 27 inquires whether appellee’s land was permanently damaged for farming purposes “on account of oil and water flowing from these tanks, if you have so found ?” Appellant contends that the manner of submitting this issue constituted a comment upon the weight and credibility of the evidence, in that the court assumed and in fact instructed the jury that oil and waste had flown from such tank battery onto appellee’s farm land. A party objecting to a charge is required by Rule 274, Texas Rules of Civil Procedure to point out distinctly the matter to which he objects and the grounds of his objection. The point directed against issue number 27 did point out the matter complained of and the ground of the complaint. However, it is not well taken. In appellant’s motion for new trial the contention was simply that the court erred in overruling defendant’s objections to issue number 27, because “the same was a comment upon the weight and credibility of the evidence,” An examination of appellant’s objections to the submission of issue 27 in this connection did not refer to the specific obj ection here complained of and the matter was therefore waived and cannot be raised for the first time on appeal. The objection to issue 27 did refer to objections to other special issues and attempted by such reference to adopt and apply such objections to such special issue. This procedure is prohibited by Rule 274.

In appellant’s points 5 through 10 it is contended that there was no evidence to support the affirmative findings of the jury in answer to special issues numbers 1, 19 and 31, and that the court therefore erred in overruling its objections to the submission of such issues and in overruling .appellant’s motion for an instructed verdict.

Concerning the escape of oil from the Woodward Well number 3 inquired about in special issue number 1, appellee Thomas testified that he went on his land soon after a rain which occurred in October of 1961 and found that oil was standing in his field which in his opinion had been permitted to escape from appellant’s Woodward number 3. Appellant’s employee Tilley admitted that at about the time in question there was a pulling operation at the well and that some oil got away when a tubing was broken, but denied that any of the oil got away from the immediate vicinity of the well. Thomas stated that appellant had a pulling unit at the well and that work was “either going on or had been going on.” Thomas testified that although it had rained at the time he became aware of the situation he saw that oil was still standing in his field, and in his opinion had probably been there a day or two. He stated that the water from the rain had apparently caused the oil to be moved some distance from the well; that it had settled in an area of about 70 by 165 feet and then continued on to a terrace for a total distance of about 1230 feet. Thomas stated that the area covered by the flow of the oil and water varied in width from about 15 to 35 feet except for the 70 foot strip which extended for about 165 feet. He stated that the cotton crop was already made for that year but that his land was permanently damaged by the flow of this oil on his land. Thomas testified that soon after he discovered the damage to his land he spoke to appellant Bob Robinson about it and told him in effect that some oil had gotten away from this well and flowed upon his land and that Mr. Robinson said, “Yes, I know it, — it made me so mad I could have killed Tilley, — I have threatened to fire him over it — .” He stated that Robinson also said to him “You are going to have to realize, ‘Cliff’, that there are things happen that I can’t help.”

In our opinion there was evidence to support an affirmative finding of the jury to special issue number 1 and the court did not err in overruling appellant’s objection to the submission of such issue and in overruling appellant’s motion for an instructed verdict thereon. Robinson was a party to the suit and his declaration to appellee Thomas was against his interest and, in effect, an admission of negligence on the part of Tilley, who was appellant’s employee. Although the statement was in the nature of a conclusion it was admissible against the appellant because he was a party to the suit and it was against his interest. Such statement together with other evidence showing that the oil escaped because of the breaking of the tubing in the pulling operation amply supported the submission of special issue number 1. Taylor v. Owen, Tex.Civ.App., 290 S.W.2d 771; Jewell v. El Paso Electric Company, Tex.Civ.App., 47 S.W.2d 328; McCormick and Ray, Texas Law of Evidence, Vol. 2, pg. 4.

Appellee Thomas testified that on July 13 he went to the location of the tank battery on the N/2 of the NW/4 of Section 141, inquired about in special issues numbers 19 through 24 and found that the firewall around the battery had been cut “plumb to the surface”; that the cut was to ground level from inside the tank battery so there would be a slight pour off from inside to the land on the outside. A picture was introduced in evidence by appellee showing such a cut or break in the firewall. Thomas stated that the firewall didn’t just break, that he could see where a shovel had cut the firewall. Appellee further testified that there had been a big rain causing oil and salt water to escape from the area enclosed by the firewall and to run out upon appellee’s land. He stated that he could see where such oil and water had flowed out of the firewall and settled on the ground across an area running generally in a northwest direction. He further testified that between July 13th and 27th there was another rain and another overflow from the tank battery. Appellant’s employee Tilley stated that one of the tanks in the battery had gone bad and that the old tank was removed and another one moved in; that in doing so some of the firewall was torn down. Tilley stated, however, that the firewall was built back in as good a shape as it was and that water could not run out of the tank battery on appellant’s land.

In our opinion the testimony and the circumstances, as above set out in substance, constitute some evidence in support of a finding that the firewall in question was cut or torn down by the defendant, his agents or employees, and appellant’s points complaining of the action of the court in overruling his objections to such issue and in overruling his motion for an instructed verdict that appellant, his agents or employees did not cut such firewall, are not well taken.

Appellee Thomas alleged that on January 24th, 1963, appellant’s shipping lines from tanks designated as “Thomas A and B” broke and oil flowed across appellee’s farm a distance of 1,067 feet covering a width of about 15 feet over the entire distance, saturating the soil as it spread. Plaintiff alleged that this pipeline had been reburied in the spring of the previous year because it had been buried too shallow and had been broken when plaintiff’s plow came into contact with the pipeline. Plaintiff alleged that the line was rusty and deteriorated at the time it was lowered by appellant, his agents and employees, and that appellant knew, or in the exercise of ordinary care should have known, of such rusted and deteriorated condition and that the line was likely to break, but appellant nevertheless did replace the pipeline in such deteriorated condition; that such action constituted negligence and was a proximate cause of the damage to appellee’s land by reason of the breaking of such pipeline and the spread of oil over his farm as above set out.

Appellant’s 7th and 10th points urge that there was no evidence to support an affirmative finding that appellant, his agents, or employees did or omitted to do any act which caused the break in the shipping line on appellee’s land on January 24, 1963 and that the court therefore erred in overruling his objections to special issue number 31 and in overruling his motion for an instructed verdict on such issues. These points are overruled.

Appellee testified that on January 24, 1963 the shipping line in question broke; that oil got away and ran down the terrace for a distance of over 1,000 feet; that this was the same shipping line that had been previously broken by plowing in February of 1962 and then replaced at a lower depth. The lease. under which appellant operated provided that “When requested by lessor, lessee shall bury all pipes below plow depth.” Appellee testified that he requested the line to be lowered after it was broken by the plow in 1962, and had, in fact, made such a request to appellant prior thereto, but that appellant had not complied with the request until after the line was broken by the plow. Appellee introduced pictures which he testified were taken on January 25th which was the day after the break and stated that such pictures accurately portrayed the condition of the field at the time they were taken. Appellee testified that he had an opportunity to inspect the line after it was broken by plowing in 1962 and that at that time it “looked pretty sorry” to him. The evidence is undisputed that the line was replaced after the break on January 24, 1963 which indicates that it was not then in good condition. Appellee also testified that appellant’s employee Tilley told him that the old line should not have been put back in at the time it was lowered to below plow depth. We are of the opinion that there was some evidence in support of an affirmative answer to special issue number 31 and evidence tending to show that appellant was guilty of acts and omissions causing the January, 1963 break in the shipping line on appellee’s land.

As heretofore noted, one of appel-lee’s claims for damages concerned the permitting of oil to escape from appellant’s Woodward Well number 3. In this connection appellee alleged that in October of 1961, oil flowed from a well down to and along a terrace in a southeast directiom “from the well 1230 feet upon the terrace-channel and upon standing crops for a distance of 165 feet in length and 70 feet in-width, causing the land to become unfit for-farming purposes.” Appellee testified that he measured the area that was damaged' from the escape of oil at the Woodward, number 3 well. He stated that the total distance of drainage of oil and water from the-well was about 1230 feet. A blackboard was used in giving his testimony and it is-not possible to determine the exact import of his testimony in all cases because in several instances he would state that he measured from here (indicating) in this direction (indicating) and then on down in here.. (Indicating). Appellee did clearly state-however that the route which the oil and', water traveled from the well proceeded to a. point about 660 feet from the well where-the land flattened out and the oil settled;, that water had moved the oil to bring it to-such position; that it settled out in an area. “in here (indicating) 70 feet by 165 feet, I believe,” and then that the route of the oili and water continued on to a terrace, and", from then on covering a total distance of 1230 feet. Appellee testified that the width, of the path which the oil and water traveled varied; that it would be as narrow as 35-feet or 20 feet or 15. On cross examination the attorney for appellant inquired of appel-lee as follows, “are you claiming damages-in this lawsuit for an area 600 and some-odd. feet, or what your pleadings say here, 135-by 70 feet?” And appellee replied “I am-claiming it for 1200 — by 1230 feet.” Appellant objected to this statement by appellee on the ground that it was not in response to the pleadings and that appellant had had no reasonable opportunity to prepare for it. This objection was overruled and in appellant’s 11th point it is urged that the court erred in failing to sustain his objection to such testimony. In our opinion no reversible error is shown in the action of the court in failing to sustain appellant’s objections to this testimony. Appellee alleged damages in the amount of $500.00 in connection with this claim. The damage assessed by the jury because of the escape of oil from the Woodward Well number 3 was only $100.00. The evidence considered in connection with the record as a whole was not such that it was calculated to and in our opinion did not cause the rendition of an improper judgment.

In appellant’s 12th point, it is urged that the court erred in failing to sustain appellant’s objections to the testimony of Bob McKinney concerning certain practices of Southwestern Hydrocarbon Company for the reason that such testimony was immaterial and had no bearing upon the issues concerning ownership of the shipping line in question. Appellee had alleged and ■sought to prove that the shipping line was the property of the defendant; that in the -spring preceding this break the defendant ■reburied the line while it was in a state ■of deterioration; that appellant knew or ■should have known it was unfit for such purpose, and that the line parted because of such deterioration and damaged appellee’s land. Appellant urges that the failure of the •court to exclude the testimony of the witness McKinney concerning the practice of the Southwestern Hydrocarbon Company or Mesa Pipe Line Company with other operators or producers in the area in which Robinson Drilling Company operated was irrelevant to the ownership of the line here in •question and was prejudicial to appellant’s ■case before the jury. The record shows that the witness McKinney when asked whether Southwestern Hydrocarbon in every instance required the producers to build and maintain such lines to a connection with their pipeline stated in effect that he did not know. The witness did state however that all of the ditches he had dug from producers tank batteries to Southwestern Hydrocarbons had been paid for by the producer. It is also noted that appellant’s witness Til-ley when asked on cross examination whether Hydrocarbon required operators to lay their own shipping lines to its main line was permitted to answer without objection that he did not know. The admission of the evidence-complained of was in our opin-. ion not reversible but was harmless error as contemplated by Rule 434, T.R.C.P. The evidence considered in connection with the record as a whole was not such that it was calculated to cause or probably did cause the rendition of an improper judgment.

Appellant’s 13th point complains of the failure of the court to sustain appellant’s objections to certain argument of appellee’s attorney to the jury. The argument complained of was as follows: “He asked us to produce a copy here of the letters that we wrote making these demands; and, purely and simply, ladies and gentlemen, I forgot it and that is the only explanation I have.” Appellant objected to this argument and requested the court to instruct the jury not to consider it because it was outside the record and constituted testimony by appellee’s attorney.

Considering the record as a whole we hold that the action of the court in failing to sustain appellant’s objection to the above argument does not constitute reversible error. The letters referred to and the argument complained of were in connection with special issues 7-A through 12 which dealt with appellee’s claim for damages to his land because of the alleged failure of appellant to bury its pipeline below plow depth. All of these issues were answered in favor of appellant and judgment was entered accordingly. No harm could have been suffered by appellant by reason of such atgument.

The judgment is affirmed.

ON MOTION FOR REHEARING.

On motion for rehearing appellant calls our attention to the fact that in discussing special issue number 19 we attributed to Mr. Tilley’s testimony that the firewall around the north or Woodward tank battery was torn down in exchanging tanks within the battery when in truth and in- fact the testimony referred to was directed to the Thomas or south tank battery. We have examined the record and find that appellant’s contention in this respect is well taken. However, we remain of the opinion that the evidence in the case supports the finding of the jury in answer to special issue number 19 and that the court did not err in overruling appellant’s objections thereto and in overruling his motion for an instructed verdict

Appellants motion for a rehearing is overruled.


text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. PLAINVIEW HOSPITAL AND CLINIC FOUNDATION, Appellee.
    No. 7427.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1964.
    Cade & Bowlin, Lubbock, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, for appellee.
   NORTHCUTT, Justice.

This is a venue case. Plainview Hospital and Clinic Foundation brought this suit against Trinity Universal Insurance Company to recover for hospital bills due for services rendered by the hospital in caring for Patricia Hughes, a little girl. Patricia entered the hospital on or about October IS, 1962, and remained there until November 6, 1962, when she was discharged. This suit is brought upon an itemized statement of account attached to its petition against Don Hughes, father of Patricia. Trinity Universal Insurance Company filed its plea of privilege to have the case transferred to the district court of Dallas County, Texas, the county of its residence. The hospital filed its controverting plea seeking to hold venue in Hale County, Texas, under the provision of Section 23 of Article 1995, Vernon’s Ann.Tex.Rev.Civ.St. The trial court overruled the plea of privilege and held venue in Hale County, Texas; and from that order the Trinity Universal Insurance Company excepted and gave notice of appeal. Hereafter Trinity will be referred to as appellant and the hospital as appellee.

Appellant presents this appeal upon four assignments of error. By its first point it is contended the court erred in overruling appellant’s plea of privilege because ap-pellee failed to plead a cause of action against appellant under Rule 31 Texas Rules of Civil Procedure and then point two that appellee failed to prove a cause of action against appellant under Rule 31. Rule 31 provides:

“No surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.”

See Rule 163 and Article 2088, T.R.C.S.

If the appellant had been sued herein as surety for the indebtedness of Don Hughes, we think it is settled beyond question in this state that Hughes would have been a necessary party defendant. Rule 31 and 163; Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958; Sharpe v. Landowners Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435; Johnson v. J. R. Watkins Company, Tex.Civ.App., 337 S.W.2d 477; First Nat. Bank of Merkel v. Thurmond, Tex.Civ.App., 159 S.W. 164. If the trial court in this case erred in overruling appellant’s plea of privilege because appellee failed to plead and prove a cause of action under Rule 31 it would be because Don Hughes was a necessary party and was not made party to the suit. If that be true, it would not be grounds for reversing the case and sustaining the plea of privilege. If Hughes was a necessary party, the trial court was not authorized to enter any judgment and this court could not render any judgment except to reverse and remand the case; and we would have no authority to act upon a plea of privilege in such a situation. Royal Petroleum Corporation v. McCallum, supra. Since we are of the opinion this case was presented upon the sole theory that appellant owed the debt here sued upon since it assumed the obligation, we overrule appellant’s first two points of error.

By appellant’s third point of error it is contended the trial court erred in holding that appellant was obligated to protect ap-pellee’s account with Hughes when appel-lee completely failed to do what the law required be done to enable appellant to protect such account. The appellant further contended by point of error four the court erred in holding that appellee had made a prima facie case on the hearing of the plea of privilege when the purported contract sued upon shows on its face a failure to comply with the statute of frauds.

Appellee pleaded that appellant assured appellee that appellant would be responsible for the hospital and medical bills for the treatment of Patricia Hughes and agreed in writing to protect appellee on said account. Appellee further contends the letters below instructed appellee it need not file its claim with the county clerk. We are unable to .agree with that contention. The writings relied upon by appellee were introduced by appellee and are as follows:

“23 November 1962
Mr. Frank Buchanan, Adj.
Trinity Universal Insurance Co.
1611 Avenue Q. St.
Lubbock, Texas
Re: Patricia Hughes
Dear Sir:
Enclosed please find medical narrative on November 19,1962.
The amount of the bill for the hospital to date is $879.40.
If this is a liability claim will the Insurance Company be able to protect the Hospital on their bill.
Your cooperation is appreciated.
Yours very truly,
PLAINVIEW HOSPITAL AND CLINIC FOUNDATION
Howard E. Stubblefield, Bus. Off.
Liability Insurance Dept.”
“November 26, 1962
Mr. Howard E. Stubblefield, Bus. Off.
Liability Insurance Dept.
Plainview Hospital and Clinic Foundation Plainview, Texas
Dear Mr. Stubblefield:
Patricia Hughes
This is to advise that this is a liability claim and as soon as we bring ■this matter to a conclusion your bill will be protected.
Yours very truly,
JsJ Frank Buchanan Frank Buchanan, Adjuster.”

We cannot construe appellee’s letters and •the testimony of Stubblefield as meaning .anything other than asking if the hospital bill was such a claim as was protected under the law, and appellant answered in the .affirmative.

Mr. Stubblefield, the person writing the letter above set out, testified he was a clerk for the appellee in charge of the liability insurance department and worked in the business office of appellee; that he understood he could file a lien in the county clerk’s office to protect this sort of a deal; that he had filed many such liens but that he did not file a lien in this case and he knew that before appellant could pay appellee’s claim without the consent of Mr. Hughes that ap-pellee would have to have a lien on file. Stubblefield further testified no consideration was paid to appellant for the contract sued upon. He further testified when he wrote the letter asking “if this is a liability claim” he meant to ask if it was a type of claim that came within the classification and he understood that answer (letter dated November 26, 1962) to mean he would be able to protect appellee as far as he could under the law. Article 5506a, Section 3, R.C.S. provides such lien shall be filed * * * prior to the payment of any monies to such injured person or his legal representatives. This suit is on a bill originally charged to Mr. Hughes, the father of Patricia Hughes, (italics ours).

Appellee seeks to hold venue in Hale County, the residence of appellee under Section 23, Article 1995, T.C.S. It is stated in the case of Lanark Corporation v. Conover, Tex.Civ.App., 321 S.W.2d 930 (writ dismissed) as follows:

“With reference to Subdivision 23, our Supreme Court in Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, has held in effect that when plaintiff seeks to invoke Subdivision 23 in order to defeat a plea of privilege, he has the burden both to plead specifically and to prove facts showing that a cause of action arose in his favor against the defendant. Our Supreme Court reaffirmed this doctrine in Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605, Pt. 2. So far as we have been able to find, our Supreme Court has not departed from this rule. See also Milligan v. Southern Express Co., 151 Tex. 315, 250 S.W.2d 194.”

Patricia Hughes entered the hospital on October 15, 1962, and was discharged November 6, 1962. Consequently, the indebtedness sued for herein had accrued before the letters upon which appellee seeks to hold appellant upon were ever written. Appellant was in no way connected with appellee receiving Patricia Hughes into the hospital and creating the antecedent indebtedness here sued upon. If the letters dated November 23 and 26, 1962, be considered as appellant agreeing to pay the bill, such agreement is without any consideration; and, therefore, there is no liability. Green v. American Refining Properties, Tex.Civ.App., 22 S.W.2d 343; Baker v. Wahrmund, 5 Tex.Civ.App. 268, 23 S.W. 1023; Oak Cliff State Bank & Trust Co. v. Conroy, Tex.Civ.App., 201 S.W. 699; Kollatt v. Clements, Tex.Civ.App., 3 S.W.2d 855 (writ dismissed) ; King v. Wise, Com.App., 282 S.W. 570.

Mr. Stubblefield, agent of appellee handling this matter for appellee, knowing-appellant could not pay appellee without Hughes’ consent unless appellee filed his-lien, and appellee not having filed any lien, the appellee did not exercise ordinary care and diligence to protect appellant by filing its lien; therefore, could not recover. We do not believe appellee proved a cause of action against appellant. Williamson v. Davey, 52 Tex.Civ.App. 353, 114 S.W. 195. Appellant’s third and fourth points of error-are sustained.

The judgment of the trial court is reversed and the case ordered transferred to a. district court of Dallas County, Texas.


author: McDONALD, Chief Justice.

text:
    Dorothea Sims TORBETT, Guardian of the Estate of Karen Lynn Torbett, a Minor, Appellant, v. C. A. McCOY, Administrator, Appellee.
    No. 4296.
    Court of Civil Appeals of Texas. Waco.
    Dec. 10, 1964.
    Rehearing Denied Jan. 14, 1965.
    See, also, Tex.Civ.App., 366 S.W.2d 592.
    Robert G. Carter, Marlin, for appellant.
    Reagan & Welch, Marlin, Bradley & Geren, Groesbeck, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order of the District Court of Falls County, approving the final account of C. A. McCoy, Administrator with will annexed, of the estate of Nannie King Torbett, deceased.

Counsel for appellant stated in oral argument, and we agree, that the issues narrow to a determination of whether 3 items of disbursement of the Administrator were improper. These items are: $3000 paid to Torbett Clinic and Hospital; $500 paid to the Administrator; and $1400 paid to J. W. Torbett III.

Appellant, Dorothea Torbett, Guardian, contends that the Trial Court erred in approving the final account because: 1) there was no evidence that such items were just claims against the estate; 2) the administrator did not file his claim for the $500 against the estate within 6 months after he qualified; 3) the $500 item and the $1400 item were claims against the J. W. Torbett Trust Estate, and not claims against the Nannie King Torbett Estate.

The 3 complained of items were paid after application to, and upon order of the County Judge, and were carried forward as disbursements in the Administrator’s Final Account.

The County Court approved such final account, and ordered distribution to the devi-sees in the will, of the balance of the estate. Appellant excepted to the order of the County Court approving the final account, and gave notice of appeal to District Court.

Trial de novo was before the District Court without a jury, which after hearing, entered judgment approving the Administrator’s Final Account.

The record reflects that Dr. J. W. Tor-bett, Sr. and his wife, Nannie King Torbett, executed a joint and mutual will. Dr. Tor-bett died first, and under the will his estate was left in trust, for the life of Mrs. Tor-bett. Such trust provided, among other things, for payment by the trustee of $200 per month to J. W. Torbett III, with the balance of the trust’s income to be paid to Mrs. Torbett each month. The trustee had the discretionary right to reduce the monthly payment to J. W. Torbett III by one-half, if the trustee felt that the welfare of Mrs. Nannie King Torbett required such. At the death of Mrs. Torbett the trust estate, and Mrs. Torbett’s estate vested in J. W. Torbett III and the appellant’s ward. The will further provided compensation for the Trustee and Executor in an amount, “of the reasonable value of such time as may be actually devoted to the affairs of the estate, to be determined by the executors and trustees in the exercise of fair discretion.” C. A. McCoy was Trustee of Dr. Torbett’s estate, and some 14 months prior to Mrs. Torbett's death, being fearful there would not be sufficient money on hand to take care of Mrs. Torbett, reduced the payment to J. W. Torbett III to $100 per month. After Mrs. Torbett’s death, McCoy became administrator with will annexed, of Mrs. Tor-bett’s estate. He applied to the County Court for authorization to, and was ordered to pay to J. W. Torbett III the sum of $1400, (an amount equal to the $100 per month for the 14 months the payment to him had been reduced from $200 per month). McCoy never paid himself anything for serving as Trustee of Dr. Torbett’s estate, or anything for serving as Administrator of Mrs. Torbett’s estate. He made application to the County Court to pay himself $500 for his services “as Trustee of Dr. Torbett’s Estate and as Administrator of Mrs. Tor-bett’s Estate.” The County Court ordered this payment for “McCoy’s services as Trustee of Dr. Torbett’s Estate and as Administrator of Mrs. Torbett’s Estate.”

The record reflects that the $3000 disbursement was to the Torbett Clinic and Hospital in settlement of Mrs. Torbett’s hospital bill amounting to some $8300. We think the evidence ample to establish that this disbursement was for debt actually owed by the deceased, and that such was a just debt of the estate. We likewise think the evidence ample to establish the $500 disbursement to the Administrator as fair and reasonable compensation for his services to the estate of Mrs. Torbett only, and as such, a just debt of her estate. Appellant’s complaints as to these 2 items are overruled. Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265; Cartledge v. Billalba, Tex.Civ.App., 154 S.W.2d 219, Er.Ref. W. M.

The $1400 item paid by the Administrator from the estate of Nannie King Torbett presents a different situation. Under the will of Dr. Torbett, the income each month became the individual property of Mrs. Torbett, free of control of the trustee, after the payment to J. W. Torbett III. The will gave the Trustee discretionary power to reduce the monthly payment to J. W. Torbett III from $200 to $100. This discretion was exercised by the Trustee, and is not subject to review. Upon the death of Mrs. Torbett, the Dr. Torbett trust terminated and the property on hand vested in fee simple in the beneficiaries. The Administrator of Mrs. Torbett’s estate was not legally authorized to make up from Mrs. Torbett’s estate the $1400, which could have been, but was not paid to J. W. Torbett III from Dr. Torbett’s estate. The approval by the District Court of this disbursement in the Administrator’s Final Account was erroneous.

The judgment of the District Court is reversed, insofar as it approves the disbursement of the $1400 claim to J. W. Tor-bett III; and in all other respects affirmed. The cause is remanded with instruction to restate the final account, disallowing the $1400 disbursement and to certify same to the County Court for observance. Reversed and remanded.


author: DIXON, Chief Justice.

text:
    A & A LIQUOR STORES, Appellant, v. Woodrow W. DUNCAN et ux., Appellees.
    No. 16428.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1964.
    Dick P. Wood, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin; Robert H. Thomas and William C. Martin, Jr., Dallas, for appellees.
   DIXON, Chief Justice.

Appellees Woodrow W. Duncan and wife, Lena Duncan, obtained judgment against appellant A & A Liquor Stores, Inc., in a forcible, detainer suit in the Justice Court and also in the de novo appeal in the County-Court at Law.

The County Court at Law made findings of fact. The substance of these findings, which are supported by the evidence, includes the following:

1. Appellees are title owners of a described tract of land.

2. In 1953 they leased part of this tract to appellant.

3. On the same date in 1953 they leased another part of the tract to one Joe East.

4. By the terms of the two leases each' of the lessees was given the right to use all of the parking area of the other lessee— in other words the two lessees had mutual parking rights in both leased areas.

5. The lease to Joe East expired on March 31, 1958. East continued as a tenant on a month to month basis until June 1962.

6. The lease to appellant was redrawn on September 9, 1960 for a period of ten years. The new lease contains the same metes and hounds description as the 1953 lease, but gives appellant no parking rights except on the land specifically described in the lease — that is, it does not include the mutual parking rights with the neighboring tenant provided in the 1953 lease.

7. At the time this suit was filed appellant was in possession of and claimed to be appellees’ tenant on the land specifically described by metes and bounds in the 1953 and 1960 leases plus an additional tract eight feet wide. This latter tract is the subject matter of this suit, referred to as the “unleased tract.”

8. Appellant has no written lease to the “unleased tract,” but always considered itself a tenant under appellees’ title and was therefore a tenant at will or at sufferance.

9. Appellees assented to appellant’s tenancy of the “unleased tract” until shortly before the filing of this suit, at which time appellees made a written demand oil appellant for possession of the property.

10. Appellant refused to surrender possession of the “unleased tract” upon demand by appellees.

11. Appellees’ damage due to appellant’s withholding possession of the “unleased tract” during the appeal from Justice Court was the reasonable rental value of the land, to-wit, $250.00.

12. Appellees were damaged by appellant’s appeal in the amount of $750.00 as attorneys’ fees.

Appellant does not claim title to the land in dispute. It admits that appellees are title owners of said land, possession of which was awarded to appellees. Appellant simply claims that as tenant under appellees’ title it is entitled to possession. There is no claim of error or mistake in the metes and bounds description in appellant’s lease. The tract in dispute is not included in that description, as is shown by a survey made some time before suit was filed. The accuracy of the survey is not questioned.

Though the land to which appellees were awarded possession by the judgment of the County Court at Law is not included in the metes and bounds description of appellant’s lease, appellant has been using the area as parking space for its customers. This it was entitled to do under the mutual possession provision of its 1953 lease. But that provision having been omitted from the 1960 lease, the County Court correctly concluded that appellant’s continuation of possession was the possession of a tenant at will or at sufferance. 35 Tex.Jur.2d 508, 511-512. It is undisputed that appellees knew and assented to appellant’s possession until they made demand for possession themselves.

The substance of appellant’s three points on appeal is that neither the Justice Court nor the. County Court at Law on appeal had jurisdiction to try this case because it is a boundary dispute and is triable only in the District Court in an action of trespass to try title. In support of this view appellant cites us to Art 2387, Vernon’s Ann.Civ.St, which provides that Justice Courts have no jurisdiction of suits for the trial of title to land.

We do not agree with appellant The ownership or title to the property in controversy is not in issue in this case. Ap-pellees do not ask for an adjudication as to title and the judgment does not undertake to make an award of title. Only possession was sought by appellees. Only possession was awarded to appellees.

It is true that the County Court at Law made a finding that appellees are the owners of the property. But this is no more than a finding of an admitted fact as an incident to appellees’ status as landlords. Young Women’s Christian Ass’n v. Hair, Tex.Civ.App., 165 S.W.2d 238, 241. Appellant’s defense is based on the premise that appellees are the owners, but that appellant as tenant has a right of possession.

The Justice Court has original jurisdiction of such a suit. Art. 3973, V.A.C.S. Appellees do not allege or claim forcible entry. They claim only forcible detainer following their written demand for possession. The facts which will support recovery in a forcible detainer suit are present here and are undisputed. There was a prior lease agreement, the contract of 1953, under which appellant had possession of the land in question. That lease contract had expired. Appellant thus became a hold-over continuing to occupy the property with the landlord’s assent. Appellant refused to surrender possession on demand of the landlord. Young Women’s Christian Ass’n v. Hair, supra; Gillam v. Baker, Tex.Civ.App., 195 S.W.2d 824; Murat v. Micand, Tex.Civ.App., 25 S.W. 312; 25 Tex.Jur.2d 476-478.

Appellees could have filed a suit in trespass to try title in the District Court in order to regain possession of their property. But such a remedy is cumulative, not exclusive, when title to the property is not in issue. Slay v. Fugitt, Tex.Civ.App., 302 S.W.2d 698; Holcombe v. Lorino, Tex.Com.App., 79 S.W.2d 307; 25 Tex.Jur.2d 470.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    PANHANDLE STEEL BUILDINGS, INC., Appellant, v. Jessie W. BENSON, Appellee.
    No. 7429.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 21, 1964.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Cade & Bowlin, Lubbock, for appellant
    Hackney & Crawford, Brownfield, New & Townes, Denver City, for appellee.
   CHAPMAN, Justice.

This is an appeal by defendant below, Panhandle Steel Buildings, Inc., denying appellant’s plea of privilege to be sued in Potter County where it is domiciled. Ap-pellee controverted the plea, relying upon Sections 9 and 9a as amended and 23 of Article 1995, Vernon’s Ann.Civ.St. The court below held venue was in Yoakum County where appellee lived at the time and where his injury sued upon occurred.

Appellant urges error in the judgment of the trial court in overruling its plea of privilege for the reason that appellee’s own testimony established that his injury resulted from a dangerous condition which' was open, obvious, and known to him.

Appellee testified that on August 22, 1962, he was working for J. D. Bell Construction Company finishing a concrete walk around a steel elevator under construction for Gutersloh-Anderson Grain Company at the time he was injured. The testimony shows appellant was constructing the building and J. D. Bell was a subcontractor for the ground work, including the sidewalk on which appellee was working at the time of his injury.

The record showed he was an experienced workman in the type construction on which he was engaged on the named date:

“Q. All right, now, in that construction work there for Brown and Root for eleven years, have you worked for any other concerns in construction ?
“A. Yes, sir.
“Q. And about how many years all together, then, have you worked in that type of work that was being carried on down there at Gutersloh-Anderson Grain Company in August, 1962?
“A. Well, I have been doing that kind of work since ’36.”

Therefore, he was a workman of twenty-six years experience.

On the date of injury the record shows a thirty-foot aluminum ladder was leaning up against the elevator on the south side thereof near where appellee was doing finishing work on the sidewalk and that he had “seen the ladder being used there during the time that it was there” by other employees before a concrete mixing truck drove up to deliver concrete for the walk. He helped the driver spot the truck then got down on his knees to work the concrete as it came out of the truck chute. He said at that time the ladder was sitting right between the front wheel and the back, and the door on the cab.

His testimony showed the ladder was not tied; that he was a workman of eleven years experience in metal contraction and erection; and that the ladders are supposed to be tied with a wire or rope.

“Q. All right, and do you know what the usual and normal procedure is on ladders that are placed on the sides of a building?
’“A. Yes, sir.
“Q. And what is that procedure?
■“A. You are supposed to set a ladder just so many feet out; in other words, where it won’t slip, fall on you or fall with a man with it, and you are supposed to have them tied at all times or lay them down on the ground. That is safety rules, I have been in it for a number of years.”
All emphases herein are ours.

Appellee also testified, that after he had recovered sufficiently, he had his wife and son drive him back out to the construction job and at that time: “they were using their ladders to put them up like you’re supposed to do and like you have got to do, but they had them all tied.”

When appellee was asked about whirlwinds in the summer months of that area of Texas he testified he was familiar with them and that “you can just get out here and look anywhere on this prairie and if a man is so a mind to, I imagine he could count seven or eight at a time if he just looked different directions.” We believe the evidence is clear that a whirlwind is a force that blew the ladder down on appellee. The Latin American truck driver testified the whirlwind came along just before he saw appellee on the ground injured and that while holding his hat in one hand and a lever of the truck with the other he felt something barely touching his leg. He looked back and saw appellee on the ground shaking and a step ladder was close to him.

Thus, we have a man with twenty-six years of experience in construction work, such as he was doing on the occasion of his injury; eleven years of experience in metal construction and erection; one who knew that ladders such as the one heretofore mentioned are supposed to be laid down on the ground when not in use or tied where they won’t slip or fall; that such procedure is. required by safety rules; one who knew of the wind in that area and of the prevalence of whirlwinds and knew the thirty-foot ladder next to which he was working was not tied or secured in any manner such as to keep it from falling. With all this knowledge and experience, under all these conditions, with the truck motor running and the noise of the cement, sand and rock mixture coming down the chute where he could not hear the ladder in the process of falling, he ■ was down on his hands and knees working apparently completely unconcerned as to the danger of the unsecured standing ladder.

With this situation we do not believe, under appellant’s own testimony, he can avoid the rules our Supreme Court has established in McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 and Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368 and other cases therein cited and discussed.

In McKee v. Patterson, supra, the Court said:

“In determining liability, under the defense of voluntary exposure to risk, it is said that one cannot recover for injuries sustained while voluntarily exposing himself to a danger -which he either does or should fully realize and appreciate. 38 Am.Jur. 845 et seq., Negligence, Sec. 174, p. 848; Levlon v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, writ refused; Wood v. Kanc Boiler Works, 150 Tex. 191, 238 S.W.2d 172, 174; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 610.”
The court in that case also said:
“A general contractor in control of premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees.”

Thus, appellee, as an employee of a subcontractor, was an invitee of appellant.

In Halepeska v. Callihan Interests, Inc., supra, the Supreme Court in discussing the “no duty” doctrine said:

“ * * * the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950) ; Genell, Inc. v. Flynn, Tex., 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom and to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occu-pier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof."

Thus, we would have to say, under the facts stated and the rules of law just quoted that the danger which led to appellee’s injury was one which was open and obvious to him and one which he knew about. Therefore, as a matter of law, he was charged with knowledge and appreciation of such danger.

In HALEPESKA the court in discussing McKee v. Patterson, supra, said:

“The holding was that since the invitee-worker had full knowledge and appreciation of the danger, the occupier [appellant here] owed him no duty. If there was no duty, the defendant obviously breached no duty; * * *. The Court observed that the same result would be reached under volenti: the facts were undisputed that with full knowledge and appreciation of the danger, the plaintiff deliberately encountered the risk. In stating the general rules of ‘no duty’ and volenti, the Court said that where the plaintiff knows and appreciates, or should know and appreciate, he cannot recover.”

We therefore believe and so hold that appellee, as a matter of law, by his own testimony brought himself within both the “no duty” and volenti doctrines and thus as a matter of law failed to prove a cause of action in Yoakum County.

. As stated in appellant’s brief, “if the evidence will support a finding in plaintiff’s favor, in the absence of any evidence by the defendant, then the plea of privilege should he overruled.” Here ap-pellee failed to establish by his evidence facts which' would support a finding in his favor because his own testimony established that his injury resulted from a dangerous condition which was open, obvious and known to him.

Upon a trial on the merits, the testimony might take a different turn, so we would want it specifically understood that we are not by this opinion binding ourselves to a holding that appellee could not make a cause to go to the jury on a trial on the merits.

The judgment of the trial court is reversed and the case is ordered transferred to Potter County.


author: MOREMEN, Chief Justice.

text:
    William T. LAINHARDT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 19, 1965.
    William T. Lainhardt, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   MOREMEN, Chief Justice.

Appellant, Lainhardt, filed motion to vacate a judgment entered in the 1957 February term of the Shelby Circuit Court under which he was convicted of the offense of forgery and sentenced to a term of ten years in the penitentiary. He alleged that he was not represented by counsel at the trial and that he entered a plea of guilty because at the time he was in fear of losing his life. Counsel was duly appointed by the court and represented him at the hearing on the motion.

Appellant testified that prior to the 1957 trial he had talked to the Hon. Lucian L. Kinsolving in regard to representing him, but that he was unable to raise money with the result that he appeared before the court and pled guilty without counsel. Specifically he said:

“Well, prior to my trial, I talked to Mr. Kinsolving in regard to defending me and we reached an agreement on the fee. However, at that time, I was confined in the County Jail, that afforded me no way to write to my people or friends, and I had no chance to get any fee. Mr. Kinsolving told me at that time that he felt he could get me a two year term for the charge of Forgery. On February the 13th another fellow and I broke out of Jail. We were returned from the escape on February the 14th. At that time, the Court, you might say, was packed, filled up, quite a few angry citizens, local Police, the Sheriffs Office and the State Police. I had had some encouragement and inducement by these police officers to run, with the impression if I did the least bit wrong, I wouldn’t get a chance to ever run again. I came before Mr. Wright’s Court and he told me at that time — asked me if I wished to have a trial. I told him yes. He told me if I didn’t that I would be placed in the local jail and held until the next term of Court. After seeing and hearing what I had in the few minutes I had been back from escape, I thought it would be a lot safer to accept the ten years he told me he would give me, because it was the ' maximum, than to . stay in that jail in this vicinity or neighborhood.”

At the time of the escape the jailer received severe wounds from which he subsequently died. (Lainhardt was indicted for murder — later amended to voluntary manslaughter — and upon a plea of guilty was sentenced to confinement in the penitentiary for fifteen years.)

Mr. Kinsolving testified that he had been appointed counsel for Lainhardt and had sought to he relieved of the appointment, but on February 14, 1957, when appellant appeared before the court after his escape, the court re-appointed him to defend appellant. Appellant had insisted on an immediate trial that day. Mr. Kinsolving discussed this case with the Commonwealth’s Attorney who refused to offer any recommendation for a term of less than the maximum of ten years. Mr. Kinsolving advised Lainhardt not to accept the offer and to take a continuance because he believed, for a first offender, a two-year sentence should be enough time. Appellant insisted he wanted to plead guilty and did not want a continuance. Mr. Kinsolving stated that he “very fervently recommended that he take the continuance and not to make any plea at that time.” A plea of guilty was entered.

The Hon. James F. Thomas, who was Commonwealth’s Attorney at the February term 1957, corroborated the testimony given by Mr. Kinsolving.

The Hon. Coleman Wright, Judge of the Shelby Circuit Court, was called to the stand by appellant, Lainhardt, and he too corroborated the testimony given by the other witnesses.

All the witnesses introduced, with the exception of Lainhardt, testified that the proceedings in the courtroom were orderly, that there was no indication of mob violence, that none of the officers carried shotguns and that although two or three state policemen and several members of the sheriff’s office were in the courtroom, the proceedings were controlled at all times.

The court made a detailed finding of fact, which was fully supported by the evidence, and reached the conclusion that the motion filed under RCr 11.42 should be overruled because the sentence imposed was not in violation of the Constitution or a Statute of the Commonwealth which would render the judgment void, or of the Constitution of the United States. We believe that properly he could reach no other conclusion.

Judgment affirmed.