author: GRISSOM, Chief Justice.

text:
    J. H. COOPER et ux., Appellants, v. CITY OF ABILENE, Appellee.
    No. 4161.
    Court of Civil Appeals of Texas. Eastland.
    April 28, 1967.
    Rehearing Denied May 26, 1967.
    Schulz & Hanna, Yates & Yates, Abilene, for appellants.

      Don R. Butler and Gary F. Dennison, City Atty., Abilene, for appellee.
   GRISSOM, Chief Justice.

J. H. Cooper and wife sued the City of Abilene. They alleged the City was liable for injuries sustained by Mrs. Cooper when she stepped into a ditch at night. They alleged that the Coopers were attending a meeting at a school and when Mrs. Cooper alighted from a car she stepped into a ■ditch and fell. Ten days after the alleged injury the Coopers’ attorney wrote the City as follows:

“The Mayor and City Commissioners City of Abilene PO Box 60 Abilene, Texas.
Gentlemen:
This is to advise you of the claim of J. H. Cooper of Abilene, Texas, for injuries sustained by his wife, Eva Lee Cooper, in the following manner:
On October 5, 1965, at about 7:20 p. m. Mr. and Mrs. Cooper were enroute to a P.T.A. meeting at Milam School, and Mr. Cooper parked his automobile along the South curb of Lowden Street, East of the intersection of Hickory and Low-den Streets. After Mrs. Cooper got out of the car on the passenger side, and started around the car, she fell into a pit, or hole, which extended from the curb of Lowden Street several feet South. Mrs. Cooper sustained cracked ribs, cartilage damage, together with undetermined back and leg injuries.
CC: Mrs. Lila Fern Martin,
City Secretary P.O. Box 60,
Abilene, Texas.”

The City filed a motion for summary judgment because the Coopers had failed to comply with requirements of the City Charter for notice of injury as a condition precedent to liability. Said motion was sustained, judgment was rendered for the City and the Coopers have appealed. The Charter provision reads as follows:

“Section 125: The City shall never be liable for any personal injury, whether resulting in death or not, unless the person injured or someone in his behalf, or in the event the injury results in death, the person or persons who may have a cause of action under the law by reason of such death injury, shall file a notice in writing with the City Secretary within thirty (30) days after the same has occurred, stating specifically in such notice when, where and how the exact injury occurred, the full extent of the injury, the amount of damages claimed or asserted, and a list of persons, if known, who witnessed the injury. The City shall never be liable for any claim for damage or injury to personal property unless the person whose personal property has been injured or damaged, or someone in his behalf, shall file a claim in writing with the City Secretary within (30) days after said damage or injury occurred, stating specifically when, where and how the injury was sustained. The person giving notice under this Section shall subscribe his name to the notice under oath that the statements and facts contained in said notice are true and correct.”

Appellants’ points are, in substance, that the court erred in rendering summary judgment for the City because (1) the requirement of verification is directory, not mandatory; (2) the requirement of a written statement within 30 days of the “full extent” of the injuries and the “amount of damages claimed” is unreasonable and void and (3) requirements relative to notice have no application to a situation where, as here, the injury of one person results in a cause of action in favor of another, such as an injury to a wife with consequent cause of action in the husband. We have considered the able brief and argument of appellants which in a case of first impression might persuade us to hold otherwise, but we are convinced that, under established law, the judgment is correct. Some of the requirements mentioned that appellants did not attempt to comply with were, we think, mandatory and the court did not err in sustaining the motion and rendering judgment for the City.

In Robinson v. City of Hereford, Tex.Civ.App. 324 S.W.2d 313, 320 (Ref. n. r. e.), it was held in effect that such requirements were mandatory and a condition precedent to maintenance of a suit against the City and that a comparable letter did not constitute compliance with said requirements. In City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692, the Commission of Appeals in an opinion adopted by the Supreme Court held that compliance with a •charter provision requiring written notice of injury within thirty days was a condition precedent to the right to maintain suit against the City. In Phillips v. City of Abilene, Tex.Civ.App., 195 S.W.2d 147 (Writ ref.), we held that the requirements of said Charter that a written claim for injury be filed within thirty days was mandatory and a condition precedent to maintenance of such a suit and, further, that this was true despite the fact that City officials had actual knowledge of all the facts required to be stated in such notice. We held that one of the purposes of that ordinance in making such requirements was to put the claimant on record as to how the accident occurred, the nature and extent of the injuries suffered and the time and ■place thereof, so as to prevent such matters resting in parol until the time of trial. We further held that the doctrine of estoppel •could not be invoked to nullify such mandatory requirements of the ordinance. In •City of Waco v. Landingham, Tex.Civ.App., 158 S.W.2d 79 (Writ, ref.), in an opinion by Judge Alexander there was a like holding. It was also there held that any material variance between the facts that caused the injury, as stated in the notice and upon the trial, was fatal. There are Foldings to the same effect in the more recent case of Carrales v. City of Kingsville, Tex.Civ.App., 393 S.W.2d 952.

To comply with said charter requirements the notice of a claim must, among other things, show:

“(5) The amount of damages claimed or asserted must be set forth.
(6) All known witnesses must be listed.
(7) It must he verified under oath.”

It is doubtful that the notice was sufficient to comply with some other requirements, hut it is obvious that there was no attempt to comply with numbers 5, 6 and 7. There was no effort to state specifically “the amount of damages claimed”, a “list of persons — who witnessed the injury” or to subscribe the name of the claimant “under oath that the statement of facts— in said notice are true and correct”, as required by the charter. See 38 Am.Jur. Sec. 697, Page 43 (1966 Cumulative Supplement) and Dracopoulas v. Rachal (Sup. Ct), 411 S.W.2d 719, 722.

Appellants say said notice requirements are not applicable where the husband is seeking recovery for his wife’s injuries. Under the express provisions of the Charter they are applicable here. In Ellis v. City of San Antonio, Tex.Civ.App., 341 S.W.2d 508 (Ref. n. r. e.), it was held proper for the husband to file such a claim. The defect urged by appellee is not that the wrong person made the claim but that the required notice of the claim was not filed. We think that proper notice was not given and that mandatory requirements were not met, such as filing such statement under oath. One of the recognized purposes of such requirements is to put the claimant on record as how the accident occurred, the nature and extent of the injuries, the amount of damages claimed, and the witnesses, stated under oath, so that the City may promptly investigate and settle or prepare for trial and that such matters be stated under oath and shall not rest in parol until the trial.

Appellants’ points are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Pearl BOGGS, Appellant, v. R. P. KING, Appellee.
    No. 7715.
    Court of Civil Appeals of Texas. Amarillo.
    May 15, 1967.
    Rehearing Denied June 19,1967.
    Witherspoon, Aikin, Thomas & Langley, Hereford, E. Hazen Woods, Jr., Hereford, of counsel, for appellant.
    Albert Smith, Lubbock, for appellee.
   NORTHCUTT, Justice.

Appellant, Pearl Boggs, a widow, instituted suit in her own behalf, as plaintiff, and hereafter referred to as appellant, against R. P. King, defendant, and hereafter referred to as appellee, in the District Court of Crosby County, Texas, for damages suffered by her when she struck by an automobile driven by R. P. King as she was crossing a four-lane highway within the city limits of Crosbyton, Texas. The case went to trial on plaintiff’s second original amended petition and defendant’s third amended original answer. The case was tried to a jury and special issues were submitted on the issues of appellee’s primary negligence, appellant’s contributory negligence, sudden emergency and in connection with the discovery by appellee of the perilous position of the appellant. Issues were also submitted to the jury in connection with damages and the jury returned a verdict on the damage issue in the amount of $8,000.

Judgment was rendered upon the verdict of the jury that the plaintiff recover nothing. From that judgment the plaintiff perfected this appeal. As to appellee’s primary negligence, the jury found appellee was negligent in several matters. As to appellant’s contributory negligence, the jury found appellant was guilty of contributory negligence in several matters. However, this appeal deals only with the issues concerning discovered peril.

The special issues and answers thereto concerning discovered peril as submitted were as follows:

“SPECIAL ISSUE NO. 23
“Do you find from a preponderance of the evidence that the Plaintiff was in a position of peril at such a time that the Defendant, by the use of the means at hand and in safety to himself and his passengers and the automobile, could have avoided the collision in question?
“Answer ‘yes’ or ‘no’
“Answer: YES
“If you have answered the preceding Special Issue No. 23 ‘yes’, and only in that event, then answer the following:
“SPECIAL ISSUE No. 24
“Do you find from a preponderance of the evidence that the Defendant discovered this perilous position, if any, in which the Plaintiff was in and realized such perilous position, if any, of the Plaintiff in such time so that by the use of the means at hand and in safety to himself, the passengers in his automobile, and the automobile that he was driving, he could have avoided injury to the Plaintiff?
“Answer ‘yes’ or ‘no’
“Answer: YES
“If you have answered the preceding Special Issue No. _24_ ‘yes’, and only in that event, then answer the following:
“SPECIAL ISSUE NO. 25
“Do you find from a preponderance of the evidence that the Defendant, after such discovery and realization, if any, of the perilous position, if any, of the Plaintiff, failed to use the means at hand consistent with the safety of himself, and the automobile that he was operating and the passengers in the car, to avoid injury to the Plaintiff?
“Answer ‘yes’ or ‘no’
“Answer: YES
“If you have answered the preceding Special Issue No. 25_ ‘yes’, and only in that event, then answer the following:
“SPECIAL ISSUE NO. 26
“Do you find from a preponderance of the evidence that such failure, if any, was negligence?
“Answer ‘yes’ or ‘no’
“Answer: NO
“If you have answered the preceding Special Issue No. 26 ‘yes’, and only in that event then answer the following:
“SPECIAL ISSUE NO. 27
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injuries to the Plaintiff?
“Answer ‘yes’ or ‘no’
“Answer: _”

Appellant presents this appeal upon four points of error as follows:

“POINT 1
“THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE THE JURY FINDING TO SPECIAL ISSUE NO. 26, BECAUSE A FINDING OF NO NEGLIGENCE IN APPELLEE FAILING TO USE THE MEANS AT HAND TO AVOID INJURY TO APPELLANT AT A TIME WHEN HE COULD DO SO WITH COMPLETE' SAFETY TO HIMSELF, TO OTHER PASSENGERS, AND TO HIS AUTOMOBILE, AND AFTER REALIZING THAT SHE WAS IN A PERILOUS POSITION, IS CLEARLY AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE SO AS TO BE CLEARLY WRONG.
“POINT 2
“THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE THE JURY FINDING TO SPECIAL ISSUE NO. 26, BECAUSE A FINDING OF NO NEGLIGENCE IN APPELLEE FAILING TO USE THE MEANS AT HAND TO AVOID INJURY TO APPELLANT WHEN HE COULD HAVE DONE SO WITH COMPLETE SAFETY TO HIMSELF, TO OTHER PASSENGERS, AND TO HIS AUTOMOBILE, AFTER REALIZING THE PERILOUS POSITION OF APPELLANT, IS WHOLLY AND COMPLETELY INCONSISTENT WITH THE JURY FINDINGS IN RESPONSE TO SPECIAL ISSUES NOS. 23, 24, AND 25, AND WITH THE REMAINDER OF THE JURY VERDICT AS A WHOLE.
“POINT 3
“THE JURY FAILED TO ANSWER SPECIAL ISSUE NO. 27, WITH RESPECT TO WHETHER OR NOT THE NEGLIGENCE IN FAILING TO USE THE MEANS AT HAND TO AVOID INJURY TO APPELLANT WAS A PROXIMATE CAUSE OF APPELLANT’S INJURY, DENIED APPELLANT THE RIGHT TO A JURY TRIAL AND A SUBMISSION ON AN ISSUE CLEARLY RAISED BY THE EVIDENCE AND THE PLEADINGS.
“POINT 4
.“THE TRIAL COURT ERRED IN REFUSING TO ENTER JUDGMENT FOR APPELLANT BECAUSE THE JURY FINDINGS IN RESPONSE TO SPECIAL ISSUES NOS. 23, 24, AND 25 CONTAIN AFFIRMATIVE ANSWERS TO ALL OF THE ELEMENTS OF THE DOCTRINE OF DISCOVERED PERIL.”

The appellant made no objections to the court’s charge. The appellee objected to the court’s charge as to Special Issues 23, 24, 25, 26 and 27 because those issues omitted the requirement or element that the jury find that the defendant realized that the plaintiff probably would not extricate herself from a dangerous position or a perilous position, if any.

Since all four of appellant’s points of error are interrelated, we will discuss all of them together. In order for the appellant to bring this case within the doctrine of discovered peril, it was necessary for appellant to prove that the appellee actually discovered and realized appellant’s perilous position in time to have avoided the collision by the exercise of ordinary care in the use of all means at his command. In Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962) it is stated:

“On the other hand, the fact of timely realization of the danger may be established by circumstantial evidence. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957). To raise the issue of discovered peril here, it was only necessary for the plaintiffs to show that the defendant realized, in time to have avoided the collision, that plaintiffs were in a position of peril, and were pursuing, and probably would continue to pursue a course that was likely to result in their being injured. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W. 2d 561 (1952); Safeway Stores, Inc. v. White, cited just above; Galveston, H. & S. A. Ry. Co. v. Wagner (Tex.Com. App.1927), 298 S.W. 552. The quantum of proof required of the plaintiffs on these elements of discovered peril, in order to entitle them to have the jury pass upon them, was such facts and circumstances as, taken together with all reasonable inferences therefrom, constituted some evidence of probative force of their existence. Ford v. Panhandle & Santa Fe Ry. Co., cited just above.
“Viewing the evidence in the light of these principles, it is our opinion that the issue of discovered peril was not raised. There is an absence of proof that the fireman discovered the perilous position of the girls in time to have avoided the collision, or that he failed, after such discovery, to exercise ordinary care in the use of the means at his command to have avoided the injury to them.”

It is undisputed that appellee was sixty some odd feet from appellant when he first realized her peril. Then the only question to be determined is: Did appellee fail after such discovery to exercise ordinary care in the use of the means at his command to avoid the injury?

Appellant was crossing from south to north across the street designated U. S. Highway 82 in Crosbyton, Texas. The highway is a four-lane highway running east and west and appellee was going west on the inside lane. Mr. Griffin testified he saw appellant going across the highway and saw the car coming on at the same time. He was asked, “And then what did Mrs. Boggs do?” His answer was, “Well, she walked out to the middle of the road and she stopped, just for — just a brief second, and went one step and the car hit her.” The appellee testified in part as follows:

“Q. Over what period of time did you observe Mrs. Boggs?
“A. Well, now, did you ever get into a place like that and try to figure time, after it was over?
“Q. Well,—
“A. I just couldn’t tell you, sir, I just—
“Q. You just don’t know?
“A. No, sir, I just couldn’t tell you.
“Q. All right. Then over what distance did you observe Mrs. Boggs traveling ?
“A. Well, I just couldn’t tell you.
“Q. Did you see her when she first—
“A. I saw Mrs. Boggs—
“Q. —reached the edge of the highway?
“A. —when she stopped — I saw Mrs. Boggs when she stopped on that center line.
“Q. You didn’t see her before she—
“A. When she paused — yes, I saw her before that, when I was back up the street there I saw a lady out in the street, and a car coming, meeting me. And she was on the other side of that car from me when I was back up the street there.”
* * * * * * *
“Q. All right, sir. And you think now, to the best of your recollection, you saw her 60 some odd feet before you hit her?
“A. That’s — when I saw that she was going to come on across the highway, yes, sir.
“Q. All right, sir. What did you do ?
“A. Well, I got on my brakes, and I got on my horn, and tried to stop my car before I got to her.
“Q. All right, by this you mean you put your — you locked all four wheels?
“A. That’s ordinarily so, yes, sir, on electric brakes.
“Q. Not ordinarily, did you out there this—
“A. Well, it looked that way by the skid marks, I wouldn’t swear that all four wheels was locked, but I’ll go out there and show you that—
“Q. You did on your deposition, didn’t you?
“A- Well, I—
“Q. You said that you locked all four wheels ?
“A. Yes, sir. I did, and I’ll—
“Q. Yes, sir.
“A. —I’ll bet money that they were.
“Q. All right, sir.
■“A. That’s on electrical brakes, and I don’t think that there’s ever a wheel that wouldn’t lock, but—
■“Q. All right, sir. Now, you say you sounded your horn?
■“A. Yes, sir.
“Q. When you were 60 some odd feet away?
■“A. I sounded the horn just as quick as I decided the lady was coming on across the highway.
■“Q. And you left skid marks out there on the road?
"A. Yes, sir.
******
■“Q. Mr. King, out here when you saw Mrs. Boggs 60 some odd feet away, was there anything to keep you from turning your car to the right ? Was there anything — any obstruction over here on the right that you would have run into if you had turned your car enough to miss her either five or six feet?
■“A. Well, now, I just don’t know how much it would have taken to have missed her.
“Q. Well, about—
"A. But if I hadn’t applied my brakes, I could have probably got farther over on the highway, but I don’t know how far I’d had to have cut to have missed Mrs. Boggs. I may have had to gone on up in that filling station, I don’t know how fast she going.
“Q. All right, sir. Now, let’s try to establish as a matter of fact how much you did turn from the time you saw Mrs. Boggs until the time you hit Mrs. Boggs. About where was your car with respect to the lanes on this highway at the time you first saw Mrs. Boggs?
“A. Well, I just don’t know. I was in —I think I was in the left-hand lane. Now, I’m not sure. I don’t know.
“Q. The left-hand lane closest to the double stripe?
“A. That’s right. Inside lane.
“Q. All right, sir. And you wouldn’t estimate where you were—
“A. No, sir.
“Q. —in that lane?
“A. No, sir, I wouldn’t because I don’t know.
“Q. Would you estimate — did you try to turn your car, Mr. King, at all?
“A. Yes, I tried to turn my car.
“Q. Were you trying to turn to the right or to the left?
“A. To the right, yes, sir, to the right.
“Q. You tried to turn to the right?
“A. Yes, sir.
“Q. But how much did you actually turn your car—
“A. I can’t tell you. I don’t know.
“Q. You wouldn’t say you turned it at all?
“A. I wouldn’t say that I did or I didn’t, no sir.
“Q. Just don’t know?
“A. No, sir, I just don’t know whether the car turned or not.
“Q. But, at any rate, you couldn’t have turned it much in that distance to have been with your left wheel still in that lane at the time your car came to a stop, could you P
“A. No, sir. The main — the first thought that hit me was to stop before I got to the lady, that’s the first thought that hit me.”
******
“Q. Mr. King, when Mrs. Boggs paused out there on the center of the street, what did you think she was going to do?
"A. I thought she was going to wait for me to go on by. I thought she had seen my car.”
******
“Q. Did she or not appear to be in a position of danger to you before she stepped into the north half of the street ?
“A. No, sir, I think she was just as unconscious of that car being there as she could possibly be.
“Q: Well, if she had stayed where she stopped, would your car have touched her?
“A. No, sir.”
******
“Q. All right, sir. And do you think that if you see an obstruction no larger than Mrs. Boggs here 60 feet down the road, or 65 feet down the road, do you think that in the condition you were in that morning you could turn your car to the left or right, assuming you have 20 or 30 feet on either side, enough — and fast enough to miss that obstruction?
“A. I certainly could have if I’d knew the obstruction was going to move on out in front of me, I sure could have.”
******
“Q. All right, sir. And how far did your car move forward, as nearly as you can tell the Court and jury, after the contact was made?
“A. Well, I don’t think my car moved many inches. Now, it’s just like it’s been testified here all along, as far as knowing the exact distance of those things, I don't know, but my car was just practically still; if it wasn’t, it didn’t like but very, very little being still when the impact was . m.ade.”
******
“Q. And if, as a matter of fact, there was not a curb over here between the roadway and this — and this implement house, there was no reason why you couldn’t have turned out there six or eight lengths—
“A. No, sir, I don’t suppose there is.
“Q. —car lengths—
“A. I don’t suppose there’d be any reason for that except that I was just trying to stop before the lady hit my car.
“Q. All right, sir. Now, as a matter of fact, if you saw her down here 60 some odd feet before you hit her, if you hadn’t turned on — if you hadn’t applied your brakes, you could have missed her, couldn’t you ?
“A. I wouldn’t swear to that, no, sir. I don’t know whether I could have or not.”

Mr. Court, the highway officer, testified “with the brakes locked down you can’t turn a vehicle one way or the other.” Court further testified as follows:

“Q. * * * Now, was the — this north and south lanes here further divided in any manner?
“A. Yes, sir. There were two lanes of travel in both the westerly and easterly directions.
“Q. And did they have anything to indicate where each of those lanes divided ?
“A. Yes, sir. It was striped.
“Q. Striped. All right. Something- like this, is that what you mean?
“A. Yes, sir.
“Q. All right. Where did the skid marks begin, Mr. Court, with reference to the Avenue A intersection?
“A. 24 feet and six inches from the curb line of Avenue A, west of the curb line.
“Q. All right. Will you put those skid marks on there and the direction of their travel as you saw them there on the scene at the time?
“A. (Witness marking on diagram)
“Q. All right. In other words, did these skid marks continue in a straight line down the street, or did they veer to one side or the other?
“A. They veered slightly to the right.
“Q. And can you remember at this time how many inches or feet they veered to the right, Mr. Court ?
“A. No, sir, I — I do recall that they were all in the inside lane.
“Q. Uh-huh.
“A. But they did veer to the right and never did leave the inside lane.
“Q. Now, I believe you told us that they started here at a point—
“A. 24—
“Q. —24 feet from—
“A. Yes, sir.
“Q. —and six inches from the curb line there?
“A. Yes, sir.
“Q. All right. Now, how far did these skid marks extend to the west ?
“A. 62 feet, six inches.
“Q. Will you write that up there, 62 feet and six inches, please?
“A. (Witness marking on diagram)
“Q. Will you step back just a minute, Mr. Court?
“A. Yes, sir.
“Q. Now, Mr. Court, are we to understand that this is 62 feet and six inches from the beginning mark? That is, where you could see the black marks—
“A. Yes, sir, that’s correct.
“Q. —on the pavement down to the end of the black marks?
“A. Yes, sir.
“Q. Is that the way it was?
“A. Yes, sir.
“Q. All right, sir. And what else did you see there at this — the scene of this accident, Mr. Court?
“A. The vehicle was still there.
“Q. Where was it sitting? Had it been —with reference to these skid marks ?
“A. It was still in the — in the traffic lane.
“Q. Still sitting there ?
“A. Yes, sir.
“Q. All right. And in measuring these 62 feet and six inches, did that include up to the—
“A. Yes, sir, to the front—
“Q. —front wheel — front tire, rather ?
“A. Yes, sir.”

It is undisputed that appellee was sixty some odd feet from appellant when he first realized her peril. Then the only question to be determined is: Did appellee fail after such discovery to exercise ordinary care in the use of the means at his command to avoid the injury? In other words, was appellee negligent? The doctrine of discovered peril only involves negligence arising after such actual discovery. Malone v. City of Plainview, 127 S.W.2d 201 (Tex.Civ.App.-Amarillo, 1939, writ dism’d); Cannady v. Dallas Ry. & Terminal Co., 219 S.W.2d 816 (Tex.Civ.App.-Fort Worth, 1949, no writ). There is evidence in this case that if the appellee had not put on his brakes but had turned to the right he might have missed the appellant. It is from that evidence we think that the jury found appellee failed to use the means at hand to avoid injury to appellant because there was no other evidence or contention that there was any other way appellee could have avoided the injury after discovering appellant’s peril. The jury, however, held such failure was not negligence because appellee did not fail to exercise ordinary care in the use of the means at his command to avoid the injury. The appellant testified she saw the appellee before she ever started across the highway and thought that she had time to cross and never looked for the car again. It was after appellant stopped and then started again that appellee realized her peril. It is not what might have been done but did appellee, under the circumstances, do what a reasonable person would have done under the same or similar circumstances. The appellee sounded the horn and locked his wheels and then could not turn either way. Appellant did not offer any testimony which even had a tendency to show that appellee had no reason to believe, after he discovered appellant’s perilous position, that appellant could or would free herself from the impending danger, which is one of the elements of discovered peril that appellant was required to prove. Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610 (1950); Arnold v. Busby, 298 S.W.2d 627 (Tex.Civ.App.-Amarillo, 1957, writ ref’d n. r. e.).

It is stated in R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960) as follows:

“The Court of Civil Appeals indicated that there was evidence that Barron could with safety have pulled off the pavement on the shoulder and thereby avoided the collision. The plaintiff also suggests that Barron could have applied the brakes sooner than he did or that he could have applied just the right amount of pressure to the brake pedal so that the air brakes would have caused the wheels to turn slowly but not lock, thus diminishing the time required to stop the truck. There was evidence that a braked but slowly turning wheel exerts more friction on the road surface than does a sliding or skidding wheel.
“We are unable to agree with any of these theories. In order to charge one with liability under the doctrine of discovered peril, there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held. Terry v. English, 130 Tex. 632, 112 S.W.2d 446; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W. 2d 880; Morreale v. Cohen, 158 Tex. 291, 310 S.W.2d 737; Welch v. Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, wr. ref. n.r.e.”

We know of no clear chance ap-pellee, after discovering appellant’s peril, had or could have reasonably perceived to have averted the injury. He was faced with an emergency and immediately sounded the horn and locked his wheels and skidded into appellant.

Judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Ruth L. MILLER, Appellant, v. Tom A. LOCHRIDGE et al., Appellees.
    No. 15078.
    Court of Civil Appeals of Texas. Houston.
    June 8, 1967.

      James C. Brady, Houston, for appellant.
    E. E. Brewer, Angleton, for appellees.
   WERLEIN, Justice.

This is an appeal by appellant, Ruth L. Miller, from an order of the trial court sustaining the pleas of privilege of appellees, Tom A. Lochridge and Angleton Bank of Commerce, and transferring the case to the District Court of Brazoria County, Texas.

Appellant alleged in substance that on or about February 1, 1964 she and Lochridge entered into a written contract of purchase and sale under the terms of which appellant was to purchase and Lochridge to sell an apartment building known as the Caprice Apartments, in the City of Houston, for the price of $120,199.47, subject to a first lien of $94,656.51 in favor of the Mainland Mortgage Company, and with appellant as suming a second, third and fourth lien against such property, the fourth lien being held by Angleton Bank of Commerce in the sum of $10,000.00. Such contract of sale does not contain a description of any property, although it appears to have been written upon the letterhead of the Caprice Apartments with address shown as Houston, Texas.

Appellant alleged certain representations that Lochridge made in order to induce her to enter into said contract and pled that such representations were false and that she relied on-the same, and was induced thereby to execute the contract.

Appellant also alleged that she rescinded the agreement and tendered back the property to Lochridge and that the agreement is void or voidable and unenforceable. She further alleged that there was no consideration for an assumption by her in such agreement to pay the third and fourth liens to the defendants, Pyramid Roofing Company, Inc. and Angleton Bank of Commerce, and that if there was any consideration it had failed, and that she received nothing for such assumption agreement. She then alleged that she expended her own funds in the sum of $4,000.00 over and above income received from said apartments, and that she also brought the suit to recover such amount from Lochridge as well as $10,000.00 exemplary damages, since his representations were made with the intent to deceive her and were wilfully made or grossly negligently made, entitling her to exemplary damages. She prayed that the contract and assumption agreements, notes and other written evidence of the transaction be declared a nullity and that she recover against Lochridge damages in the sum of $14,000.00.

In her controverting plea she alleged that her petition showed that the fraudulent misrepresentations made to her were made in Harris County and that the venue of the suit, therefore, came within Subdivision 7 of Article 1995, Vernon’s Annotated Texas Statutes. She also stated in her controverting plea that her petition showed that the suit was brought to cancel the convey-anee of land situated in Harris County, Texas, being within the purview of Section 14 of Article 1995. She made substantially the same allegations in her controverting plea with respect to the bank’s plea of privilege. In both of her controverting pleas she alleged that the suit was by reason of a written contract which was to be performed in Harris County, Texas, and such fact was sufficient to bring the cause within Subdivision 5 of Article 1995, V.A.T.S.

The case is before us without- any 'findings of fact or conclusions of law by the trial court. In its judgment the court merely stated it was of the opinion that the pleas of privilege should be sustained, and they accordingly were sustained and venue of the cause was changed and the case transferred to the District Court of Braz-oria County.

Appellant does not allege in her petition anything with respect to any deed that was executed pursuant to the alleged contract of sale, nor does she pray that any conveyance of the property be set aside. She merely prays that the contract and assumption agreements, notes and other written evidence of the transaction be declared of no further force and effect, and that she recover damages in the sum of $14,000.00.

Appellant’s petition does not allege, nor does the evidence show, that the alleged representations were made in Harris County by appellee Lochridge. Hence, the suit does not come within the exception of Subdivision 7 of Article 1995, V.A.T.S. It was shown at the hearing that there had been a foreclosure sale of the property in question, and appellant testified that this suit involves only herself, Lochridge and the Bank, and that in the suit she is seeking to rescind the contract of sale and recover $3,056.00 which she alleged she expended in connection with the transaction.

The evidence and inferences therefrom would support an implied finding by the court that the property in question had been foreclosed under a lien prior to the lien held by appellee Bank and that its lien had been wiped out, so that the Bank could not assert or claim any interest in the property in question. In its brief the Bank states that the title to the land is not involved in this suit inasmuch as one of the superior lien-holders had foreclosed, and “wiped out the Angleton Bank of Commerce’s lien on this property, and the Angleton Bank of Commerce is not claiming a lien on this property.”

The law is well settled that a hearing on a plea of privilege is tried in the ordinary way, and that on appeal from a judgment sustaining or overruling a plea of privilege the Court of Civil Appeals must review the fact findings made by the trial court in the same manner as in any other appealed case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. In the instant case, in the absence of findings of fact or conclusions of law, this Court must presume that the trial court resolved all issuable facts in such a way as to support its judgment. If there was competent testimony to support the court’s judgment, the judgment must be sustained. McElyea v. Cozby, 233 S.W. 2d 482, Tex.Civ.App.; Martinez v. General Beverage Distributors, Inc., 312 S.W.2d 284, Tex.Civ.App.; James v. Drye, 1959,. 159 Tex. 321, 320 S.W.2d 319.

The evidence is undisputed that the note held by the Bank was payable to it at Angleton, Texas, and that in the deed accepted by appellant she assumed payment of such note. Since the note was payable at Angleton, Texas, which is in Brazoria County, and appellant assumed payment of such note, she thereby contracted to discharge the obligation of the note at Angle-ton, Texas, the place where it was payable. Flatt v. Republic Insurance Company, 19 S.W.2d 826, Tex.Civ.App., n. w.. h. See also Terrazas v. Carroll, 277 S.W.2d 274, Tex.Civ.App., n. w. h. Since the evidence shows that appellee, Angleton Bank of Commerce, neither holds nor claims any interest in appellant’s land and did not do so at the time this suit was filed, appellant may not retain venue of this case in Harris County, Texas as against said appellee under Subdivision 14 of Article 1995, V.A.T.S. Clingingsmith v. Cook, 347 S.W. 2d 279, Tex.Civ.App.; Smith v. Rampy, 198 S.W.2d 592, Tex.Civ.App.; James v. Drye, supra.

Moreover, appellant is seeking to rescind an alleged contract of sale. In Traweek v. Ake, 280 S.W.2d 297, Tex.Civ. App., the court held that the rescission of a contract for the sale of land does not come within Subdivision 14 of Article 1995, V.A.T.S. In James v. Eagle Rock Ranch, 304 S.W.2d 471, Tex.Civ.App., the court said:

“It has been held many times that a suit by a grantor to rescind a conveyance of land for fraud and to recover the land is within subd. 14 * * *
“ * * * We cannot convince our-
selves, however, that a suit by the grantee, as here, comes within any of the specific provisions of subd. 14.
“Appellants’ suit is not to recover lands. It is just the opposite. It is a suit to divest themselves of title to land.”

The court properly sustained both pleas of privilege. The contract in question does not describe any property, nor does it show that the contract was to be performed in Harris County. Hence, appellant’s suit does not come within Subdivision 5 of Article 1995, V.A.T.S. Furthermore, appellant has failed to establish by any evidence of probative force that ap-pellee Lochridge had his domicile in Harris County when this suit was filed and process was served upon him. Additionally, appellant’s controverting pleas are insufficient. In one of them no reference whatever is made to appellant’s petition, and in neither of the affidavits to such pleas does appellant purport to swear that the allegations in the petition are true. Chapman v. First Nat. Bank of Wellington, 221S.W.2d 318, Tex.Civ.App., and authorities cited; A. H. Belo Corp. v. Blanton, 1930, 133 Tex. 391, 129 S.W.2d 619; Fair v. Mayfield Feed & Grain Co., 203 S.W.2d 801, Tex.Civ.App. 1947.

Judgment affirmed.


author: BARROW, Chief Justice.

text:
    Gene TREIBER, Appellant, v. Fred SCHAEFER, d/b/a Schaefer Construction Company, Appellee.
    No. 14582.
    Court of Civil Appeals of Texas. San Antonio.
    May 31, 1967.

      P. Otis Hibler, Harry J. Burns, San Antonio, for appellant.
    House, Mercer, House & Brock, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee brought this suit to recover for material and labor furnished appellant, the prime contractor on a contract to construct the Kirby Junior-Senior High School. Roland Schmidt intervened and sought recovery from appellee for the gravel furnished Schaefer for use on this job. Appellant asserted that appellee had not performed his work in accordance with the plans and specifications for this construction project and sought recovery on a cross-action for the reasonable cost of removing and redoing the work performed by appellee. Judgment was rendered after a non-jury trial whereby appellee recovered from appellant the sum of $4,720.63 for labor and materials furnished, together with attorney’s fee of $750.00, and intervenor recovered from appellee the sum of $2,728.23 for materials furnished appellee, together with attorney’s fee of $500.00. Findings of fact and conclusions of law were filed by the trial court.

Treiber has appealed and asserts: 1. There is no evidence that appellee substantially complied with the plans and specifications prepared for the school job; 2. the trial court’s finding that appellant’s cross-action is without merit is against the great weight and preponderance of the evidence, in that appellee was required to expend an additional $1,037.34 to rework, scatter and roll the base material to comply with plans and specifications; 3. the trial court erred in awarding attorney’s fees to appellee in that the contract did not provide for same; and 4. the trial court erred in taxing all the costs, including those relating to inter-vener’s successful claim against appellee, to appellant.

In 1964, Treiber submitted the low bid for construction of the school. Prior thereto Schaefer submitted a written offer to Treiber to do the excavation, furnish and place gravel fill and other like work on this job for the sum of $6,643.00. The plans and specifications were examined by Mr. Jacobs, the estimator for Schaefer, and Schaefer’s bid for this subcontract was based upon the material and manner of use called for by these specifications. Treiber’s low bid was in excess of the money available for this job, and therefore Treiber and the school’s architect and consulting engineer modified the original plans and specifications to lower the price. Insofar as pertinent to this suit, it was agreed to require six inches less of base material and to substitute pit run gravel for crushed rock, as called for in the specifications. Gravel from Schmidt’s pit was found to be satisfactory and Trieber was quoted a price of $0.75 a cubic yard. He passed this information along to Mr. Jacobs and, after the latter had checked and verified this price, it was determined that the initial bid of Schaefer could be accordingly reduced $595.00.

No new written bid was submitted by Schaefer, and Treiber did not at any time return the original bid with his acceptance. Instead, a few days after the change in the type of material had been discussed, Treiber called up Schaefer and told him to “go to work.” Treiber asserts that he thereby orally accepted the original bid as reduced and that the subcontract was to be performed by Schaefer for the agreed price of $6,048.00. On the other hand, Schaefer contends that he understood by the failure of Treiber to return his signed bid, the work was to be performed at an hourly rate plus cost of materials. Schaefer testified that he had performed other work for Treiber on this basis. The trial court resolved this dispute favorably to Schaefer by finding that the labor was performed at an agreed hourly rate which totalled the sum of $1,741.88. In addition, it was found that 3676 cubic yards of base material had been furnished at an agreed price of $2,793.-75 (3604 yards of this material was purchased from Schmidt at a cost of $2,728.00). The judgment included $184.00 which Treiber admittedly owed Schaefer on other jobs.

The principal controversy on this appeal relates to the trial court’s finding that Schaefer substantially complied with his contract to “scatter and roll the base material,” and permitting full recovery for the materials furnished and labor performed. A careful examination of the testimony of both Schaefer and the estimator conclusively shows that the gravel was to be applied in accordance with the specifications on the school job. Obviously, some plans and specifications would be necessary to determine how much material was needed and where it would be placed. There was testimony by Schaefer that nothing was said about the plans and specifications in his original bid or in the telephone conversations. On the other hand, both Schaefer and his estimator testified that his bid was based on these plans and specifications, and in fact both insisted that the material had been laid in accordance with said specifications. This is clearly demonstrated by these excerpts from the cross-examination of Mr. Schaefer :

“Q. And you laid that pit run material in accordance with the plans and specifications, yes or no? A. ‘Yes.’
“Q. And it is your testimony that you put the pit run gravel — you laid it out there on the job, you installed it, you worked it in in accordance with the plans and specifications? A. ‘Yes.’”

Treiber urges that Schaefer failed to comply with the specifications which required that the base material be laid in layers of six inches, each layer to be moistened and rolled with pneumatic roller, until the base was brought up to the sub-grade of the concrete •slab. This required a fill of about 42 to 48 inches. The consulting engineer on the job for the architect testified that only the top 8 to 10 inches were properly rolled and that no roller was even present on his inspection of the job. Treiber also testified that deficiencies were called to his attention during job progress by the consulting engineer and that he discussed these deficiencies with Jacobs and Schaefer. Although Schaefer testified generally that the specifications were followed and even at one point said the gravel was laid in “six-inch layers,” a fair construction of the testimony of both Jacobs and Schaefer is conclusive that the material was laid in two to three inch layers. They stated, however, that the material was wet when laid, properly rolled, and compacted sufficiently. Both denied receiving any complaints from Treiber or anyone else until after the base had been completed and heavy rains fell in the area.

The plans required Treiber to cut ditches in the area for use in construction of the slab foundation upon completion of the base. About ten days after the base was completed by Schaefer, and after the ditches were cut in same, rain of from four to five inches fell and the gravel sloughed off into the ditches. Treiber was required, by the consulting engineer, to remove the base and replace same. Although there were discussions between Schaefer, Jacobs and Treiber relative to the relaying of the base, they did not arrive at any agreement and Treiber relaid same, although he did have use of the gravel furnished by Schaefer.

The trial court found that Schaefer substantially complied with his contract to scatter and roll the base material on the construction site. It is seen, however, on examination of all the findings and judgment based thereon, that this finding is based upon an erroneous rule for determination of compensation where the contract is not performed in accordance with plans and specifications. There is no finding of fact relative to the difference between the value of the base laid in the manner done by Schaefer and that set forth in the specifications. Nor can it be said that Treiber established as a matter of law that the sum of $1,037.34 was required to be expended by him because of the difference between Schaefer’s performance and that required by the specifications. Furthermore, there is no finding regarding the contention of Schaefer that the failure of the base was due to the excessive and untimely rainfall. Apparently the trial court was of the opinion that Schaefer was entitled to recover the full contract price where he had substantially performed his contract.

The correct rule for determining compensation or damages in the case of substantial performance of a building contract is that the contractor is entitled to recover the contract price, less the reasonable cost of remedying the defects or omissions in such a way as to make the building conform to the contract. Atkinson v. Jackson Bros., 270 S.W. 848, 38 A.L.R. 1377 (Tex.Comm’n App.1925); Garland Grain Co. v. Bailey, Tex.Civ.App., 393 S.W.2d 945, writ ref’d n. r. e.; Cooper Concrete Co. v. Hendricks, Tex.Civ.App., 386 S.W.2d 221, no writ; Holt v. Purviance, Tex.Civ.App., 347 S.W.2d 321, writ ref’d n. r. e.; Hennemuth v. Weatherford, Tex.Civ.App., 278 S.W.2d 271, writ ref’d n. r. e.; 10 Tex.Jur.2d Building Contracts §§ 21, 39 (1959).

The findings in our case are very similar to those in Atkinson v. Jackson Bros., supra, where the trial court erroneously permitted a full recovery based on a finding of substantial performance. The Commission of Appeals determined the contractor was not entitled to recover the full contract price without deductions, since there was only a substantial performance. To allow full recovery without deductions for defects would be to award compensation for something he had not done] It was further held that the burden was on the contractor to furnish the evidence to properly measure the deductions allowable necessary to remedy the' defects and omissions. Since the trial court had tried the case upon a wrong theory as to the rights of the parties in that situation, the case was reversed and remanded.

We conclude this is the proper judgment to be rendered in our case on the claim of Schaefer for material and labor furnished on the Kirby School job. Treiber did not dispute the claim of Schaefer for $184.00 owed him on two prior jobs and therefore that part of the judgment may be-affirmed.

No appeal was perfected by Schaefer as-, to the judgment entered against him on the claim of intervener, Roland Schmidt, to recover for the pit-run gravel furnished. Schaefer for use in performance of his. contract. This claim has no relationship to the claim of Schaefer against Treiber and this part of the judgment may be affirmed.

The judgment of the trial court is affirmed in part, so as to permit Schmidt to-recover on his claim against Schaefer andl so as to permit Schaefer to recover from. Treiber the sum of $184.00; the judgment: rendered in favor of Schaefer on his claim for labor and materials used on the Kirby-Junior-Senior High School job is hereby severed, and reversed and remanded for a new trial. The costs of this appeal are taxed one-third to Treiber and two-thirds to Schaefer.


text:
    Ralph F. JONES, Appellant, v. PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 4185.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 16, 1967.
    See also Tex.Civ.App., 416 S.W.2d 583.

      James De Anda, William R. Edwards,. Corpus Christi, for appellant.
    Keys, Russell, Watson & Seaman, Corpus Christi, James C. Watson, Corpus. Christi, for appellee.
   GRISSOM, Chief Justice.

Ralph F. Jones sued Pacific Employers. Insurance Company for benefits payable under the Workmen’s Compensation Law for total and permanent incapacity. A jury found that Jones sustained total incapacity after November 17, 1963; (5) that an injury on that date was a producing cause of such incapacity, which (6) began February 10, 1964 and (7) was permanent. It found that (16) Jones’ incapacity was. not solely caused by arthritis or by any one or more of the injuries previously sustained by him in September 1956, March 1959, February 1963, or an injury subsequently sustained on February 10, 1964, or by a combination of arthritis and any one or more of said injuries. It found, however, that (17) each of said previous and subsequent injuries contributed to Jones’ present incapacity; that (18) the percent of his present incapacity contributed by said prior injuries was as follows: September 1956, 5%, March 1959, 5% and February 1963, 40%. The jury found that the injury sustained on February 10, 1964, subsequent to the injury made the basis of this suit, contributed 40% of his present incapacity.

The court subtracted the percent of incapacity contributed by said previous and subsequent injuries and rendered judgment for Jones for only 10% of the amount payable for total permanent incapacity, the percent of incapacity caused by the injury that is the basis for this suit. Jones has appealed. The deduction of 40% by virtue of the subsequent injury on February 10, 1964, is the act complained of on this appeal.

Article 8306, Section 12c provides that if an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both contribute, the employer’s insurance carrier shall be liable because of such subsequent injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.

It is established that an employee is entitled to compensation for incapacity to which an injury is a producing cause, notwithstanding the fact that he was prior to the injury afflicted with a disease which has contributed to his incapacity. Texas Employers’ Insurance Ass’n v. Parr (Tex.Com.App.), 30 S.W.2d 305, 310. In Traders & General Insurance Co. v. Gibbs (Tex.Civ.App.), 229 S.W.2d 410 (Ref. N.R. E.), cited with approval by Judge Green-hill in Sowell v. Travelers Insurance Company (Sup.Ct.), 374 S.W.2d 412, 416, it was held that if a prior compensable specific injury did not contribute to a claimant’s incapacity resulting from a subsequent general injury Section 12c of Article 8306 did not apply. That, for Section 12c to apply, it must be established that the prior compensable specific injury contributed to the incapacity for which recovery was sought. In the Gibbs case, the claimant had lost his left eye, a specific injury. He returned to work and a pipe fell on his head fracturing his skull. He recovered for total and permanent incapacity. The insurer contended that under Section 12c, the claimant could not recover for total and permanent incapacity caused by a general injury because he had previously suffered a com-pensable specific injury. The Supreme Court disagreed with that contention. In the Sowell case Judge Greenhill said that Section 12c made no distinction between specific and general injuries, although the Legislature had provided different methods for determining the compensation for them. It was there held that in a suit to recover for a general injury it was proper to submit an issue inquiring whether a prior specific compensable injury contributed to the plaintiff's present incapacity. The judgment was reversed because of the submission of an issue inquiring what percent of claimant’s incapacity “was due solely” to the injury that was the basis for the suit, where there was evidence that he had a prior arthritic condition which was aggravated by that injury.

In St. Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357 S.W.2d 744, it was said:

“The injury directly involved in this suit is alleged to have been sustained on April 30, 1959. Prior injuries and one subsequent injury are also involved. Evidence showing the nature and extent of these injuries was introduced before the jury. Such evidence was admissible, inasmuch as it is the extent of the prior and subsequent injuries that reduces the insurer’s liability, not what the employee was paid in settlement of his claim growing out of the injury. The settlement agreements and the sums paid in settlement of other suits or claims could not serve the jury or the trier of the facts materially in determining the extent of the prior and subsequent injuries contributing to Murphree’s disability.”

However, Judge Smith’s further statement on page 749 that

“In view of the fact that this case was pleaded, tried, and submitted to the jury on the theory that the legal effect of a subsequent injury (September, 1959) is no different than that of a prior injury, and the fact that no contention is made that St. Paul is legally responsible only foi* the incapacity that Murphree would have sustained absent the subsequent injury, St. Paul cannot be sustained in its contention that the jury findings that Murphree was totally and permanently disabled by the April injury are not supported by the evidence merely because the September, 1959 injury contributed 5% to Murphree’s incapacity”,

indicates that the first quoted statement is dictum. However, such dictum and the language in the first part of section 12c tend to support the court’s action in deducting the 40% incapacity contributed by the subsequent injury on February 10, 1964. Furthermore, the record shows that appellant has settled with another insurer of a different employer for the subsequent injury on February 10, 1964.

Article 8306, Sec. 12c was amended in 1947 by creating a Second Injury Fund from which an employee “who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.” It has been said that the primary purpose of the amendment was to enable wounded war veterans to obtain employment, for example if he had previously lost an eye and, in the course of his employment, he lost the other eye and was by the combined effect of both injuries totally and permanently disabled he might recover for such total permanent disability from the Second Injury Fund, but he could still recover only the statutory compensation for a specific injury, loss of one eye, from his employer’s insurance carrier which, when paid, was to be deducted from the payment for total and permanent disability out of the Second Injury Fund. Amendments to Section 12c, designated 12c-l, and 12c-2, emphasize the limitation on the liability of the employer’s insurer by the provision in 12c-l that “the association” shall be liable only for the compensation payable for such second injury, although he was thereby rendered totally and permanently disabled. Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671, 672. It has been determined that Section 12c makes no distinction between specific and general injuries. Sowell v. Travelers Insurance Company (Sup.Ct.), 374 S.W.2d 412, 416.

The reason for limiting liability of the employer’s insurer by deducting the 40% contribution to present incapacity by a later injury is just as valid here as the limitation expressly stated to be applicable to prior compensable injuries in section 12c. In this case the record shows that the trial court knew that appellant had previously settled for said last injury with another employer’s different insurance carrier for that subsequent injury, which the jury found contributed 40% to appellant’s present incapacity. If the court had included said 40% in the recovery granted it would have allowed a double recovery for the same accident and incapacity. Furthermore, it would cause appelle to pay for 40% of appellant’s incapacity caused by a subsequent injury while he was employed by a different employer and insured by a different insurer. We do not believe that the law contemplated such a recovery. See 63 Tex.Jur.2d 48, 49; Hartford Accident and Indemnity Company v. McCardell (Sup.Ct.), 369 S.W.2d 331, 343. In the last cited case Judge Hamilton said at page 337: “The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.” See also Gilmore v. Lumbermen’s Reciprocal Ass’n (Tex.Com.App.), 292 S.W. 204, 206; Maryland Casualty Co. v. Gunter (Tex.Civ.App.), 167 S.W.2d 545, 547; Texas Employers Insurance Ass’n v. Pierson (Tex.Civ.App), 135 S.W.2d 550.

Appellant’s points are overruled. The judgment is affirmed.


author: WALTER, Justice.

text:
    PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Ralph F. JONES, Appellee.
    No. 4178.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.
    Rehearing Denied June 16,1967.
    Keys, Russell, Watson & Seaman, Corpus Christi, James C. Watson, Corpus Christi, for appellant.
    James De Anda, William R. Edwards, Corpus Christi, for appellee.
   WALTER, Justice.

Ralph F. Jones recovered a judgment against Pacific Employers Insurance Company for benefits under the Workmen’s Compensation Act. Jones appealed from such judgment and this court has this day written an opinion affirming the judgment in cause Number 4185, 416 S.W.2d 580, to which reference is made for all purposes.

The insurance company has perfected a separate appeal from such judgment. It contends there is no evidence that Jones sustained any disability on or following his accidental injury of November 17, 1963. After considering the evidence tending to support such findings, we have concluded there is no merit to such contention.

The company’s second point involves the construction of Sections 10 and 12c of Article 8306.

The jury found that Jones had sustained three compensable injuries before and one after November 17, 1963. It found that the 1956 injury contributed 5% to his incapacity, the 1959 injury 5%, the 1963 injury 40% and the subsequent injury of 1964 contributed 40% to his incapacity. Appellant says: “In other words, the amount of compensation to which a workmen’s compensation claimant is entitled to recover is computed as though the injury on which the suit is brought was the only injury; then the compensation benefits are reduced by the percentage of contribution of the prior and/or subsequent compensable injuries.” The Corpus Christi court held contrary to such contention in Aetna Casualty & Surety Company v. Depoister, Tex. Civ.App., 393 S.W.2d 822 (writ ref. n.r.e., 1965). We agree with that holding.

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


author: PARKER, Justice.

text:
    O. V. OLIVIER, Appellant, v. William SNOWDEN, Appellee.
    No. 6901.
    Court of Civil Appeals of Texas. Beaumont.
    May 25, 1967.

      Orgain, Bell & Tucker, Beaumont, for appellant.
    Harry Burns, Houston, Fuller, Fuller & McPherson, Port Arthur, for appellee.
   PARKER, Justice.

Based on a jury verdict, the plaintiff William Snowden recovered judgment against O. V. Olivier, defendant, for $10,-000 for personal injuries sustained by plaintiff when he fell from a scaffold owned by defendant. To the extent of $6,736.65, such recovery is subrogated to Texas Employers’ Insurance Association, the workmen’s compensation carrier of M, L. Osborne, plaintiff’s employer, by reason of its payment of such amount to Snowden. The parties will be designated as in the trial court.

At the time of the accident in question plaintiff was employed as a laborer by Osborne, the general contractor in charge of construction work on the Merchants National Bank job in Port Arthur, Texas. Defendant Olivier was a sub-contractor employed to do the plastering work. Sub-contractors and the general contractor, respectively, built their own scaffolds unless one was already in place constructed by another sub-contractor or the general contractor. Should a scaffold be in place where one was needed, although not built by that contractor, it was used as the “next man’s scaffold”. The various contractors and their employees used each other’s scaffolds whenever useful. This practice, custom, agreement, understanding and routine standard operating procedure was followed in general as well as on this particular job. Each contractor expected to put up his own scaffolding if there wasn’t one already in place. The mutual use of scaffolds was of benefit to each contractor, saving the extra cost of tearing down another contractor’s scaffold and erecting one in its place. Scaffolds normally consisted of 7 or 8 boards-supported by metal frames 8 feet apart. Boards used were called 2" boards but were actually 1⅝" thick to be used for walking and working purposes. The outer boards from the metal frames were sometimes used only as a storage space for plastering materials or support for the mortar board used by the plasterers. In that event, boards of 1" thickness were used. That part of the scaffold used for walking purposes was between the metal frames. Expert and experienced contractors and laborers testified that a 2" board is the customary size board used for scaffolds in the construction business. No contractor or sub-contractor used 1" boards to their knowledge. It was their opinion that a 1" board would not hold a person, would collapse if a person walked across it and this-fact is common knowledge in the construction business. Everybody on the job assumes that a scaffold in place is safe to get on. Defendant, personally, and his employees used Osborne’s scaffolds on this job.. Workmen could not tell who built any scaffold they used.

On the occasion in question one of the general contractor’s foremen ordered plaintiff to use a scaffold erected by the sub-contractor and defendant Olivier. Plaintiff was directed to remove some heavy forms from the top of the building. The forms-were used by plaintiff’s employer and were-in no way connected with defendant’s work. The scaffold was alongside the outside of the building. about 7 or 8 feet off the-ground. Lonnie Zeno, also employed by-Osborne, climbed up to a higher level of the scaffold and handed the forms down to-the plaintiff. The forms weighed in excess, of 300 pounds. When the first form was lowered to plaintiff with the full weight of the form coming to rest on the boards on which plaintiff was standing, a board broke and plaintiff fell 6 or 7 feet to the grounds The board that broke was 1" in thickness. Plaintiff recovered workmen’s compensation benefits as a result of his injuries from. this accident and then brought this action against defendant. In answer to special issues the jury found a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances would not use a 1" thick board on the scaffold in question and that the use of such 1" thick board was a proximate cause of the plaintiff’s fall in question.

Olivier was not entitled to the exclusive use and possession of his scaffolds. Snow-den and his employer, Osborne, were not trespassers in using the scaffold in question erected by the defendant Olivier. Plaintiff was rightfully using the scaffold as directed by his foreman. Such use was necessary and proper in the prosecution of the business of his employer, Osborne. At the time of the injury plaintiff was using the scaffold of defendant. Defendant and his employees never protested the use of this scaffold by Osborne and his employee when they used this scaffold, including the time of the accident when they were present and saw plaintiff going upon the scaffold.

Defendant asserts that there is no evidence or insufficient evidence, first, that plaintiff was an invitee on the scaffold in question and, second, that the use of the 1" board was the proximate cause of plaintiff’s injury. The employees of the general contractor Osborne and the employees of the sub-contractor Olivier were entitled to a safe place to work. Olivier owed the duty to use reasonable care to see that the scaffold constructed by him was safe for plaintiff to use. The working agreement between the contractors as to scaffolds was of mutual advantage to each, and this fact is controlling. Under the principles stated in Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963), and in Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950), the occupant of premises has the duty to use reasonable care, make and keep the premises safe for the use of persons rightfully using the premises for business purposes, including the class of persons to whom such duty is owed who are employees of the owner of the premises or contractors upon construction or other work upon the premises. These cases also hold that these are questions for the jury to determine. Other cases are: Fitzgerald v. Andrade, Tex.Civ.App., 402 S.W.2d 563 (wr. ref’d, n. r. e.); W. R. Grimshaw Co. v. Zoller, 396 S.W.2d 477 (wr. ref’d, n. r. e.).

In the “no evidence” points, that part of the record most favorable to the findings of the jury is controlling. All the record and all evidence is reviewed in considering points of error contending there is insufficient evidence to support the jury’s findings. The “no evidence” points are overruled. The “insufficient” points are overruled. All other points of error are overruled.

Judgment affirmed.


author: HIGHTOWER, Chief Justice. STEPHENSON, Justice. HIGHTOWER, Chief Justice.

text:
    MICHLIEN TIRE COMPANY et al., Appellants, v. Eugene PENDLAND, Appellee.
    No. 6843.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 26, 1967.
    On Rehearing March 16, 1967.
    Rehearings Denied April 12, 1967.

      Blades, Crain, Slator, Winters & Ross, Houston, A. D. Henderson, Palestine, for appellants.
    Martin Dies, Jr., Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellee.
   ON MOTION FOR REHEARING

HIGHTOWER, Chief Justice.

The former opinion of this court is withdrawn and the following substituted in lieu thereof.

This is a venue case. A full statement of facts accompanies the record. The parties will be referred to as they were in the trial court or by name.

Plaintiff alleged: That he was injured while mounting a tire and tube when the tube exploded; he was employed by Land O’Pines Dairy Products Company which purchased the tire and tube from defendant Owens Tires, Inc.; that defendant Michlien Tire Company manufactured the tire and tube and that the tube was defective; that plaintiff was a resident of Angelina County and that his injury was sustained in such county; that defendant, Michlien Tire Company, was a New York corporation; that defendant, Owens Tires, Inc., was a Texas corporation, doing business in Palestine, Anderson County, Texas. In his controverting affidavits plaintiff relied upon Sections 9a, 27 and 29a, Article 1995, Vernon’s Ann.Civ.St., to hold venue in Angelina County as to defendant Mich-lien Tire Company and Sections 9a, 23 and 29a, Article 1995, Vernon’s Ann.Civ.St., as to defendant, Owens Tires, Inc.

The first question is whether or not Owens Tires, Inc. waived its plea of privilege by filing certain instruments of pleadings in reply to plaintiff’s pleadings. Such pleadings were not made subject to the court’s action on the pleas, and were not filed prior to the final rendition, in open court, of the formal order overruling the pleas of privilege.

Concluding evidence was heard on the pleas September 3, 1965. The only relevant pleadings then before the court being plaintiffs first amended original petition and said pleas of privilege and controverting affidavits. On November 29, 1965, the trial judge wrote this letter to the attorneys of record:

“Gentlemen:
“Defendants’ Pleas of Privilege are overruled. Counsel for the plaintiff is requested to prepare the proper order, submit same to counsel for the defendants for approval as to form and forward same to the Court to be entered among the papers of this cause.
Yours very truly,
Jack Pierce”

December 3, 1965 plaintiff filed his second amended original petition and on the same date (December 3, 1965) Owens Tires, Inc. filed application for leave to file third party complaint against Jack Skaggs, d/b/a Skaggs Rubber Company and Michlien Tire Company. Also, on said date of December 3, 1965 Owens Tires, Inc. filed its amended answer and cross-claim against Jack Skaggs, d/b/a Skaggs Rubber Company and Michlien Tire Company, which answer included special exceptions to plaintiff’s second amended original petition.

On December 6, 1965 the trial judge called the case for trial on its merits. Plaintiff announced “ready” on the merits and Owens Tires, Inc. announced “not ready” because of its motion for leave to add third party defendant. On said date of December 6, 1965 the court extended leave to Owens Tires, Inc. to file its third party action and citation was issued thereunder on said date and trial on the merits was deferred. December 15, 1965 the pleas of privilege of each of the original defendants was overruled by order signed and entered, thus confirming the action taken by Judge Pierce in his letter of November 29th, supra.

Plaintiff stresses in his brief that the action of Owens Tires, Inc. in regard to its aforesaid pleadings was done prior to the action of the trial court on December 15th on its plea of privilege and that such plea was thereby waived.

We stress that the pleadings of Owens Tires, Inc., including its cross-claim against Jack Skaggs and Michlien Tire Company, above referred to, were filed after all parties had received Judge Pierce’s letter. We therefore conclude that such pleadings are not to be considered by us for any purpose other than determining plaintiff’s contention of waiver aforesaid. Galloway v. Nichols, Tex.Civ.App., 269 S.W.2d 850.

It is our opinion that the letter of the trial judge constituted action on the plea of privilege insofar as waiver is concerned. It is clear and undisputed by the whole of the record before us that the trial judge and all parties concerned accepted the judge’s letter as a pronouncement determinative of the plea of privilege of Owens Tires, Inc. by calling for announcements for trial on the merits December 6, 1965. Owens Tires, Inc. waited until the very last reasonable moment before taking any action to protect itself on the merits against the plaintiff or the third party defendant and we do not believe that under such circumstances it should be held to have waived its plea of privilege. Any holding to the contrary would result in undue hardship and injustice, jeopardizing the rights of any defendant in circumstances where he would not have a reasonable opportunity to file appropriate pleadings for his protection. Moreover, such a holding would assuredly constitute a travesty on our judicial system generally and particularly upon the integrity of the honorable trial judge. The case of Canales v. Salinas, Tex.Civ.App., 288 S.W.2d 207, cited by plaintiff on this point, only involved the right of a trial judge to withdraw announcement of his action on a plea of privilege contained in a letter prior to the formal rendition thereof and is, therefore, not in point.

We further hold that plaintiff’s evidence failed to sustain the material allegations of his pleadings against the defendants. Plaintiff’s own evidence (Exhibit 1), adduced on the hearing, consists of an invoice, No. 22293, and a bill. Each of these clearly shows that Land O’Pines Dairy Products Company did not obtain the tire and tube in question from Owens Tires, Inc. These instruments clearly show that the customer was Land O’Pines Dairy Products Company of Lufkin and that the company selling the tire and tube and doing the billing was Owens & Carter Tire Company of Palestine, Texas. There are no allegations or proof that the defendant, Owens Tires, Inc., and Owens & Carter Tire Company were one and the same, or at anytime had any connection with each other. In fact, there is no intimation to such effect in the record. Plaintiff himself testified that the tire and tube was purchased from Owens & Carter Tire Company. He also testified that he had no idea where Owens & Carter Tire Company obtained the same. There is no evidence in the record that defendant, Owens Tires Inc., ever had anything to do with these tires, or that Michlien Tire Company manufactured, sold or dealt in tires or tubes or had any connection with the tire and tube in question. True, the plaintiff and ■witness, Jenkins, testified that the tube bore the word “Michlien”, but there is no evidence that Michlien Tire Company had any connection with said tire or had ever seen or handled it and said tube. It cannot be held that such evidence, standing alone as it were, established that the trade mark, or trade name of Michlien Tire Company was on the tube in qestion. Nowhere in the record is there any evidence that Michlien Tire Company had a trade name or a trade mark. There is no evidence to connect Michlien Tire Company with Owens Tires, Inc., Owens & Carter Tire Company, or the tire and tube in question. International Harvester Co. v. Faris, Tex.Civ.App. 360 S.W.2d 864; Strickland Transportation Co. v. Atkins, Tex.Civ.App., 223 S.W.2d 675; Swift & Co. v. Mackey, Tex.Civ.App., 216 S.W.2d 242; Amarillo Coca Cola Bottling Co. v. Price, Tex.Civ.App., 378 S.W.2d 409.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered that plaintiff’s cause of action against the defendants, Owens Tires, Inc. and Michlien Tire Company, be transferred to the counties of their respective residence.

DISSENTING OPINION

STEPHENSON, Justice.

I respectfully dissent. I would hold that plaintiff proved a cause of action against both defendants on the basis of implied warranty because of public policy as expressed by the Supreme Court of Texas in Jacob E. Decker & Sons, Inc. v. Capps, (Tex.) 164 S.W.2d 828. I am aware that this is an extension of the rule of the Decker Case to a non-food case. The law I would apply to this case is set forth in The American Law Institute, Restatement of the Law (Second) Torts (1965) as follows:

“§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractural relation with the seller.”

As to the holding by the majority opinion that no cause of action was proved as to Owens Tires, Inc., the primary point seems to be that the evidence shows the name of the company which sold the tire to the Land O’Pines Dairy Products Company was Owens & Carter Tire Company, and that the two, Owens Tires, Inc. and Owens & Carter Tire Company were not shown to be one and the same. I am of the opinion that this point was nothing more than an afterthought upon the part of this defendant. The record shows that plaintiff sued “Owens Tires, Inc.” as a Texas corporation doing business in Palestine, Anderson County, Texas. The plea of privilege filed by this defendant shows under oath that this defendant is a Texas corporation whose post office address is 410 East Spring Street, Palestine, Anderson County, Texas. The record also shows that Owens Tires, Inc. filed a cross-claim against Mich-lien Tire Company and Jack Skaggs, d/b/a Skaggs Rubber Company, containing the following allegations:

“III.
“Owens Tires, Inc. alleges that the tube in question was purchased by it from Jack Skaggs, d/b/a Skaggs Rubber Co., an authorized Michlien Tire Company dealer, and that the tube in question was delivered by the said Jack Skaggs, d/b/a Skaggs Rubber Co., to Owens Tires, Inc. in a cardboard container which was never opened by Owens Tires, Inc., its agents or employees, and subsequently in turn was sold and delivered to Land O’Pines Dairy Products Company in the same condition in which it was received by Owens Tires, Inc.
“IV.
“Owens Tires, Inc. alleges that in connection with its purchase of Michlien Tires and Tubes from Jack Skaggs, d/b/a Skaggs Rubber Co., that the said Jack Skaggs, d/b/a Skaggs Rubber Co., as an authorized Michlien Tire Company dealer, delivered certain specifications for Michlien Tires and tubes to Owens Tires, Inc. among which was the specification that for the particular tube in question, that the same was designed for 90 pounds per square inch. And in this connection, Defendant Owens Tires, Inc. alleges that if any of its agents or employees made representations as set forth in Plaintiff's Second Amended Original Petition, that they were only repeated statements made by agents or employees of Jack Skaggs, d/b/a Skaggs Rubber Co., an authorized Michlien Tire Company dealer.
“V.
“Owens Tires, Inc. alleges that under the circumstances surrounding this occurrence in question entitled this Defendant to recover full indemnity of and from the said Michlien Tire Company and Jack Skaggs, d/b/a Skaggs Rubber Co.”

Further, plaintiff testified that the salesman who sold the tube to Land O’Pines Dairy Products Company in Angelina County worked for Owens & Carter Tire Company. Then when the invoice was first offered in evidence the only objection made by the attorney for this defendant was that the tires were not identified. No complaint was made that the invoice showed the wrong name. Later when the invoice was further identified, it was admitted over the objection of counsel for this defendant, but once again the only objection was that there had not been a proper identification of the tire and tube. The invoice shows on its face: Owens & Carter Tire Co., 410 East Spring, Palestine, Texas and the check in payment of this invoice was made payable to the same name and address. This being the identical address swforn by this defendant to be its address. All of the evidence indicates to me that this defendant did business under the name of Owens & Carter Tire Company and that ample proof was made that this defendant sold plaintiff’s employer a defective tube which resulted in the damage suffered by plaintiff.

I would also hold that a cause of action was proved against the defendant Michlien. The tube was purchased through defendant Owens Tires, Inc., doing business as Owens & Carter Tire Company. The invoice specified the tube was a Michlien 8:25 X 20. The tube was delivered in a box bearing the trade name of Michlien. Plaintiff identified the tube as a Michlien tube. The tube bore the trade mark of Michlien. Plaintiff also testified he took the new tube out of the box and that this tube exploded as he was inflating it with air while mounting it and a Michlien tire on a wheel, causing his injury. Plaintiff further testified that the tube was delivered to him 2 or 3 weeks before the date of the injury and that it was stored under lock and key until this attempted use. Plaintiff testified he had mounted tires many times during the 13 to 16 months he had worked for his employer and was following the same procedure he had previously followed at the time of his injury. That he put 60 pounds of air in the tube and had checked it with a gauge just before the explosion. That the normal pressure to put in this size tube was 75 pounds. The witness Jenkins testified he arrived at the scene shortly after plaintiff was injured and found the Mich-lien tube was “busted at the seams”. That the tube had a 10 or 12 inch split in the seam. He identified it as a new Michlien Tube.

I do not believe that the issue as to the manufacturing of the tube by defendant Michlien was a disputed issue. Neither the pleadings nor the examination of the witnesses by the attorneys for this defendant gave any indication that Michlien was denying this fact. A fact issue was raised by all of the evidence set out above, and the trial court is presumed to have found that this defendant manufactured the tube in question by entering the order overruling its plea of privilege. I see no reason to apply a different rule of law to a brand on a product from that of a brand on a vehicle. Henderson Drilling Corp. v. Perez, Tex.Civ.App., 304 S.W.2d 172. I have concluded that the evidence in this case shows that defendant Michlien manufactured and sold a tube in a defective condition unreasonably dangerous to the user which reached the user without substantial change in the condition in which it was sold, and that plaintiff was injured because of the defect in the tube.

It is also clear that the type of cause of action that plaintiff was intending to prove on the hearings of the pleas of privilege, and which I concluded had been proved, was one based upon an implied warranty. This is made clear by the evidence offered by plaintiff to which there was no objection on that ground by the attorneys representing either of the defendants. The failure to object to this evidence would constitute a waiver of any variance between the pleadings and proof. Rule 90, Texas Rules of Civil Procedure. I would hold that the issue of implied warranty was tried by the expressed or implied consent of all of the parties even though not specifically plead. Rule 67, T.R.C.P.

ON MOTION FOR REHEARING

HIGHTOWER, Chief Justice.

Appellee, Eugene Pendland, has filed his motion for rehearing again requesting us to affirm the judgment of the trial court. Such motion is overruled.

By amended motion appellee requests, in the alternative, that we reverse and remand the whole case to the trial court in Angelina County; the grounds asserted as justifying such action being that the case was not fully developed and that the same should be remanded in the interest of justice. This alternative motion for rehearing has been pending in this court since the 15th day of February, 1967, and has not been resisted by way of reply by either appellant, Michlien Tire Company or Owens Tires, Inc. Accordingly, appellee’s amended motion for rehearing is granted; the opinion of this court is reformed, and the cause is reversed and remanded to the district court of Angelina County.