text:
    Elijah White RATCLIFF, Appellant, v. E. Ivan BRUCE et al., Appellees.
    No. 10.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 17, 1968.
    Rehearing Denied Feb. 7, 1968.

      Elijah White Ratcliff, Livingston, for appellant.
    V. W. McLeod, McLeod, Alexander, Powel & Apffel, Galveston, Crawford C. Martin, Atty. Gen., George M. Cowden, A. J. Carubbi, Jr., J. C. Davis, John H. Banks, Asst. Attys. Gen., Austin, for appel-lees.
   TUNKS, Chief Justice.

On September 3, 1964, the plaintiff in the trial court, appellant here, was admitted to John Sealy Hospital in Galveston, Texas, where he was examined and given psychiatric treatment until November 20, 1964. Plaintiff was admitted to the hospital on the authority of the defendant, Dr. E. Ivan Bruce. Plaintiff alleged that he was confined and treated without his consent and sought recovery of compensatory and exemplary damages. The defendants, appellees here, are Dr. Truman Blocker, Jr., Executive Director and Dean of the University of Texas Medical Branch in Galveston, Texas, and Dr. E. Ivan Bruce, professor of psychiatry at the University of Texas Medical Branch in Galveston. The plaintiff, a licensed attorney, represented himself in the trial court and represents himself on appeal.

The trial court granted a motion for summary judgment in favor of the defendant, Dr. Truman Blocker, Jr. The jury found that on the occasion in question, the plaintiff was not confined to the hospital without his consent and the trial court rendered judgment on the verdict for the defendant, Dr. E. Ivan Bruce.

Plaintiff has appealed. The points of error upon which this appeal is based, are, briefly stated: (1) the court erred in granting the motion for summary judgment in behalf of the defendant, Blocker; (2) the court erred in overruling the plaintiff’s challenge of a juror for cause; (3) the court erred in admitting, over plaintiff’s objection, evidence offered by the defendant, Bruce, and in excluding, on defendant’s objection, evidence offered by the plaintiff; (4) the court in refusing to permit plaintiff to file a trial amendment. It is to be noted that no point of error challenges the sufficiency of the evidence to support the jury’s findings that the plaintiff was not confined without his consent.

Neither Dr. Blocker’s motion for summary judgment, the affidavits in support thereof nor the plaintiff’s answer, if any, thereto, are included in the transcript. We therefore, obviously, cannot say that the trial court erred in granting the motion. However, the evidence shown in the statement of facts conclusively shows that Dr. Blocker, personally, did not have anything to do with the plaintiff’s admission to the hospital nor with his treatment while he was there. The titles of the two defendants would indicate that Dr. Blocker was authorized to exercise some supervision over Dr. Bruce, but the plaintiff was a private patient of Dr. Bruce and there isn’t even any suggestion in the record that Dr. Blocker had any supervision, whatever, over such activity of the professor. The evidence showed that Dr. Bruce had the privilege of accepting and treating private patients.

Even if it could be inferred that Dr. Blocker had some supervisory authority over the acceptance and treatment of patients by professors associated with the medical school and under his supervision, he was a state official and, as such, the doctrine of respondeat superior was not generally applicable so as to make him liable for the wrongful conduct, if any, of Dr. Bruce. State v. Morgan (Tex.Com.App.), 140 Tex. 620, 170 S.W.2d 652; Tumlinson v. City of Brownsville, Tex.Civ.App., 178 S.W.2d 546, err. ref.; Clough v. Worsham, 32 Tex.Civ.App. 187, 74 S.W. 350, err. ref.

The appellant’s point of error that the trial court erred in rendering summary judgment for the appellee, Dr. Blocker, is overruled.

On voir dire examination of the jury panel by plaintiff, a member of the panel, Mrs. McDanald, said that her husband was a doctor. The following questions and answers were then made:

“Question: Do you think you could evaluate the conduct óf a physician with his patient objectively in spite of the fact you are the wife of a physician?
“Answer: If you mean would I try to be a good juror, I would have to say ‘Yes.’
“Question: In other words, do you believe that you would be successful in giving an honest verdict ?
“Answer: I would try to be honest.
“Question: Thank you.”

At the conclusion of the voir dire examination of the panel, the plaintiff proceeded to exercise his peremptory challenges by placing an “x” mark beside the names of eight jury panelists and turned in his jury list to the clerk in accordance with Rule 234, Texas Rules of Civil Procedure. He was, of course, entitled to only six peremptory challenges. The clerk reproduced on the jury list the names of the first twelve jurors who had not been challenged, ignoring the plaintiff’s challenge to Mrs. Mc-Danald which, reading from the top of the list, was plaintiff’s seventh peremptory challenge. Thereupon, the jury was sworn and seated in the jury box and those members of the panel not chosen were excused. It was then that, for the first time, plaintiff announced to the court that he challenged Mrs. McDanald, as a juror, for cause. The court overruled the challenge.

We hold that the trial court did not err in overruling plaintiff’s challenge for cause. Nothing in the record shows any disqualification per se of the juror. Article 2134, Sec. 4, Vernon’s Ann.Texas Civ.St, provides that any person who has a biased or prejudiced opinion in favor of or against either of the parties to a lawsuit is disqualified to serve as a juror. Bias or prejudice is an intangible factor. Naturally, situations may arise under which a factual finding, on the basis of such intangibles, must be made as to whether the prospective juror, is, in fact, biased or prejudiced. Under those circumstances the trial court must make that fact finding. His overruling of a challenge for cause to the prospective jurors carries with it an implied finding that there exists no such bias or prejudice as to constitute a disqualification. That fact finding will not be disturbed in the absence of an abuse of discretion. Swap Shop v. Fortune (Tex.Sup.Ct.), 365 S.W.2d 151; Allbright v. Smith (Tex.Com.App.), 5 S.W.2d 970; Bashrum v. Vinson, Tex.Civ.App., 330 S.W.2d 538, writ ref., n. r. e.

We are further of the opinion that the plaintiff’s challenge for cause was not timely under the circumstances of this case. He was not entitled to stand by until he learned the result of the defendant’s exercise of his peremptory challenges before he challenged a juror for cause, or otherwise.

Appellant’s third point of error is in the following language:

“The jury was prejudiced by the inconceivably flagrant abuse of the court’s discretion in allowing it to consider certain inadmissible evidence offered by ap-pellee and refusing to admit other evidence which was relevant offered by appellant.”

This point obviously does not meet the requirements of Rule 418, T.R.C.P., in that it fails to direct the attention of the Court to any particular error relied upon. We have, however, considered each of the rulings of the trial judge in those instances where he ruled adversely to the plaintiff on the admission or exclusion of evidence. There is no reversible error in any of those rulings.

Plaintiff’s second amended original petition, on which he went to trial, alleged that he was confined in the hospital and treated without his consent. It did not allege that the defendants, nor either of them, were guilty of any negligence which was a proximate cause of any injury to him. After both parties had rested, but before the charge was read to the jury, the plaintiff asked leave of court to file his third amended original petition. In that tendered pleading, he, for the first time, alleged, in general terms, that the defedant, Dr. Bruce had been negligent in administering treatment to him and that such negligence was a proximate cause of injury to him. The trial court denied leave to file the tendered pleading. The appellant complains by point of error. We overrule.

The only psychiatrist to testify in this case was the defendant, Dr. Bruce. He testified that the treatments given the plaintiff were in accordance with the procedures accepted by that school of practice of medical science as proper procedures in the treatment of the condition in which the plaintiff was. Dr. Bruce also testified that the treatments which he gave the plaintiff did not cause the plaintiff to suffer the loss of memory of which he was complain* ing. There was no testimony by any witness of the same school of practice as the defendant to the effect either that the defendant had used an improper method of treatment or that the treatment used was the cause of injury to the plaintiff. No evidence raising an issue of negligence or of proximate cause appears in the record. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1. The trial court, therefore, did not err in refusing to permit plaintiff to file his trial amendment. Kensinger v. McDavid, Tex.Civ.App., 380 S.W.2d 54, no writ history; Martin v. Shell Oil Co., Tex.Civ.App., 262 S.W.2d 564, no writ history.

This record reflects that the trial judge considerately and patiently extended to the plaintiff, representing himself, every opportunity to fully develop his case.

His opposing counsel, an able and experienced trial lawyer, carefully refrained from any overreaching or otherwise taking advantage of the situation. He went no farther than was necessary to protect the interests of his client. The record shows that the plaintiff had a fair trial and no reversible error was committed.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Henry BRUHN et al., Appellants, v. AZLE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16897.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 5, 1968.
    Rehearing Denied Feb. 9, 1968.

      Elton M. Hyder, Fort Worth, for appellants.
    Morgan, Gambill & Owen, and Cecil A. Morgan, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

April 29, 1967, the Azle Independent School District, situated in Tarrant, Parker and Wise Counties, caused an election to be held for the purpose of authorizing the issuance of independent school district bonds of approximately $2,500,000.

Thereafter eleven residents of Tarrant County, who were also resident in the school district, filed suit in a District Court of Tarrant County, and in their petition stated “that said purported election was illegal, null and void, for numerous reasons, including the following:

“1. The notices of the purported election were not properly issued.

“2. The notices, if any, were illegal, null and void.

“3. The election was not properly held.

“4. The persons voting for the issuance of the bonds were not properly qualified under the law to vote for the issuance of school bonds carrying the obligation of the defendant district.

“5. The ballots were not properly accounted.

“6. The place of balloting was not properly advertised and many people were misled as to the time and place of balloting and as to their qualifications, and further, that the election was held in the school administration building for the specific purpose of influencing the voters who came to vote at the ballot box.

“7. There were legal frauds in the receipt of ballots and certification of returns in connection with the purported election and other operations in connection therewith.

“8. There were other irregularities in connection with the holding of the election and the election returns.”

Plaintiffs’ petition additionally stated: “Plaintiffs ask that the ballots be recounted and a proper tabulation be certified as required by law.” Further, “Plaintiffs ask the Court for impoundment and inspection of all records of said election and that this honorable court issue immediately an order impounding such records in a vault or other secure place and under such terms and conditions as will keep the records under his custody and control during the entire examination and inspection proceedings.” Still further: “WHEREFORE, plaintiffs pray that the defendants herein be served as required by law and that said election be 'declared illegal, null and void, or, in the alternative, that if notices were properly issued and the election properly held, that a recount be had of all ballots cast in said election and that only those ballots be counted as qualified by law, and for such other and further relief, general and special, at law and in equity, as to which under the facts and the evidence the plaintiffs may show themselves to be entitled.”

We have copied at length as above because it was a copy of the petition which was served upon the defendants as the “notice of contest” made in compliance with V.A.T.S. “Election Code”, Ch. 9, “Contesting Elections”, Art. 9.03, “Notice of contest”. Said Art. 9.03 reads: “Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. * * * ” The school bond election comes under the same provisions by virtue of Art. 9.30, “Other contested elections”.

Holding that as the requisite “Notice of contest” required by Art. 9.03 the service of a copy of the petition was not in compliance, though timely made and furthermore subsequent to the time of the filing of plaintiffs’ suit, the trial court sustained the defendants’ plea in abatement and dismissed the suit.

In connection with plaintiffs’ appeal the defendants have filed a motion to dismiss the same on the theory that V.A.T.S., “Election Code”, Ch. 13, “Nominations”, Art. 13.30, “Contest of primary nominations”, has application to the appeal and was not complied with as to timeliness of “steps” taken to perfect the appeal. We hold that Art. 13.30 is without application to the character of controversy and the appeal with which we are presently concerned. Accordingly the motion to dismiss the appeal is overruled.

In view of the fact that it does not otherwise affirmatively appear, we are of the opinion that there was nothing in connection with the service of copies of the plaintiffs’ petition which placed anyone due to be notified that a suit would be or had been filed. Suit had been so filed, as reflected in the judgment. There are no findings of fact or conclusions of law and there is no statement of facts.

The notice, as received, contained no notice that it was the intention of the contestants to file that petition in court and use it as a basis of a contest, nor that the contestants had already filed such petition in court. That being true, we are of the opinion that language to be found in Barker v. Wilson, 205 S.W. 543, 546, (Austin Civ.App., 1917, no writ history) is appropriate to the situation presented.

There having been failure to comply with the mandate of the law relative to notice in a case ‘such as this, the trial court did not err in dismissing the case.

Judgment is affirmed.


author: TIREY, Justice.

text:
    C. E. HOLT, Jr., et ux., Appellants, v. EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Limited, Appellee.
    No. 4681.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1968.
    Samuel B. Paternostro, G. H. Kelsoe, Jr., Dallas, for appellants.
    Bailey, Williams, Weber & Allums, James A. Willliams, Dallas, for appellee.
   OPINION

TIREY, Justice.

This is a summary judgment proceeding. Appellants went to trial on their original petition. Pertinent to this discussion they alleged that prior to March 12, 1964 the insurance company had issued to the Glenn Justice Mortgage a standard automobile insurance policy with the mortgage company named as assured in which it agreed to pay on behalf of the mortgage company or any employee of such company, acting within the scope of employment or any person driving with permission of the named insured within the limitations of the policy, all sums of money that any of them might become legally obligated to pay because of injury. They further alleged that prior to March 12th a Chevrolet automobile from the mortgage company had been delivered into the hands of Gayle M. Curtis, and that she had used the car and that the use was ratified by the mortgage company, and further alleged that the mortgage company had delegated authority to Allen E. Hoskins to use the car in the furtherance of their business, and that Miss Curtis was operating the car at the time of the collision with the permission and consent of Hoskins. They further alleged that prior to June 8, 1965, appellants had brought a suit against Miss Curtis for damages sustained by reason of the collision, which was described, and that they had recovered judgment in such suit against Miss Curtis for a sum in excess of $15,000.00; that the judgment is now final, and that because of the provisions of the insurance policy they brought this suit and sought to recover the amount of the judgment against the insurance company. They specifically alleged that at the time of the injury in question Miss Curtis was driving the Chevrolet car with permission of the named insured, and that such permission was both actual and implied.

The insurance company went to trial on its original answer which contained a general denial and a special denial that Miss Curtis was not insured under the terms of the policy, and further denied that she was operating the car in question in the scope of her employment for the mortgage company or with the permission and consent of the mortgage company. The insurance company seasonably filed its motion for summary judgment and such motion was based on the pleadings filed upon the policy of the insurance company and attached a certified copy of the policy as Exhibit “A”, and upon the affidavit of Glenn Justice which was attached as Exhibit “B”. The insurance policy contained the standard omnibus clause. The affidavit further alleged that at the time of the collision no person except Hoskins had permission and consent of the mortgage company to operate the car, and it is undisputed that it was not being operated by Hoskins at the time of the accident but was being operated by Miss Curtis at such time. The motion for summary judgment alleged that there was no general issue remaining as to any fact material to be decided by the court, and that defendant is entitled to a summary judgment. The affidavit of Glenn Justice of Justice Mortgage Company attached to the motion, among other things, asserted that the Glenn Justice Mortgage Company furnished a car to Allen E. Hoskins for use in his work for such company; that he was given permission to drive the car on his own personal missions but that Hoskins was specifically restricted from permitting other persons to use the automobile except when it was being used on missions for the mortgage company; that the mortgage company had never given Hoskins permission to lend the car to any person and that he had been told prior to the accident that he could not lend the car to any person for any purpose;, and that if Hoskins had permitted anyone to use the car on or about the 12th of March 1964, the date of the accident, it was without the permission of the mortgage company; that Miss Curtis had never been an employee of the mortgage company and that such company at no time authorized Miss Curtis to use the car which it had provided to Hoskins.

Plaintiffs answered the motion for summary judgment and in reply asserted that they would show on trial that Hoskins, or any of the other agents of the mortgage company, was never impliedly or specifically restricted from permitting other persons to drive or use the car in whatever manner they may choose; that such questions are in controversy and still unsolved; that Hoskins on several occasions had given Miss Curtis permission to use the car for her own purposes, and this was known to the mortgage company and that they remained silent on the matter until Miss Curtis was involved in the accident and that they are now estopped from denying the authority of Hoskins to give permission to Miss Curtis to use the car.

Appellants also filed a trial amendment in answer to defendant’s motion for summary judgment to which they attached affidavits of Miss Curtis and Miss Jane Martin and made them a part of their answer. Miss Curtis, in her affidavit, stated that at the time of the accident she had known Hoskins for about one month; that she drove the car only once before the accident, which was one evening when she met some parties and her date at a restaurant on Lemmon Avenue in Dallas; that the car in question was at “my disposal”; that Hos-kins drove his personal car one Saturday morning, otherwise he drove to and from his work in the Chevrolet; that he offered to “let me” use the car; that “I did not ask him” for the use of it; that as a matter of fact, “he gave me carte blanche to use it”; that I was to pick up the car at the mortgage company’s parking lot; that he did tell the “guy” at the parking lot that I was going to pick up the car on Thursday afternoon, March 11, 1965; that instead of doing that he brought the keys to Janie, my roommate, for “my use”, and I was to pick him up at the airport on Friday evening; that Hoskins was on a Braniff flight from Austin; that he called me late Thursday night from Austin and we discussed personal matters, and I was to pick him up at 6:30 p. m., Friday, March 12, 1965; that about two hours after talking with him on the telephone from Austin the accident happened. He then called my apartment when he got in from Austin and somehow found out I was in the accident which occurred about 2 a. m., the day before the accident on March 12, 1965.

The affidavit of Jane Martin stated in effect that Hoskins came to her on March 11, 1965 and left the keys to the car for the use of Miss Curtis; that at the time he told “me” where the car was; that he had instructed the man at the parking lot at the mortgage company to give “me” the car. He also told “me” when he would be back from Austin and for “me” to have Miss Curtis meet him at the plane by using his car. Thereafter “I” went to the parking lot and got the car and drove it home and gave the keys to Miss Curtis.

Appellants assail the judgment of the trial court on two grounds:

One is to the effect that the court erred in granting appellee’s motion for summary judgment on the ground that no fact issue existed as to whether or not Glenn Justice Mortgage Company was estopped from denying that Gayle Curtis had permission of the named insured to use the said automobile in question;

Two is that the court erred in granting “appellee’s motion for summary judgment on the ground that no fact issue existed as to whether or not Glenn Justice Mortgage Company ratified use of the automobile by Gayle M. Curtis.”

We overrule each of the foregoing points and Affirm the judgment of the trial court.

The policy of insurance contained what might be termed the standard “omnibus clause” which made one an insured under the policy who is or was using the automobile, “Provided the actual use of the automobile is by the named insured or with his permission.” We think the question involved in this case is whether or not there is a fact issue as to the permissive use of the car at the time of the accident. It is undisputed that Hoskins, the named insured, was not driving the car, and that the driver of the car was not an employee of the named insured but was instead the girl friend of Hoskins, an employee of the named insured. We think it is undisputed that permission to use the car existed as between the insured employee and the person who was driving the car, but the question before the court is whether or not that permission extends the permission of the named insured to the driver, Miss Curtis. As we understand the affidavit of Glenn Justice of the mortgage company, Hoskins was given permission to drive the car on his own personal missions but he was specifically restricted from permitting other persons to drive or use the car except when it was being used on missions for the mortgage company. We think the affidavit also shows that the mortgage company had never given Hoskins permission to lend the car to any person, and that he had been told prior to the accident that he could not lend the car to any person for any purposes, further stating that if Hoskins had given permission for any person to use the car on or about the date of the accident, it was without the permission of the mortgage company. We also think that the affidavit shows that Miss Curtis was never employed by the mortgage company, and was not an employee of the mortgage company at the time the accident happened, and that she had not been authorized by the mortgage company to drive the car which Hoskins had caused to be delivered to her.

As we read the appellants’ affidavits they do not challenge in any way the proceedings in the trial court and the affidavits relied on by appellee are not opposed by affidavits or sworn testimony in any way. In Youngstown Sheet & Tube Co. v. Penn, Tex., 363 S.W.2d 230, points (2,3), our Supreme Court made the following statement:

“Paragraph (e) of Rule 166-A provides that ‘Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * Hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to whether the affiant could establish the facts stated in his affidavit if he were testifying from the witness stand.’ ”

See also Richards v. Allen, Tex., 402 S.W.2d 158.

We have carefully considered this record and we are of the view that there could not possibly be anything existing in the relationship between the mortgage company and Miss Curtis which would suggest that there was implied permission from the mortgage company to her to use the car. As we understand appellants’ brief they do not contend that Miss Curtis had express permission, and there is certainly nothing to indicate that she did. Our view is that under all the facts and circumstances surrounding Hoskins’ conduct in letting Miss Curtis drive the car is of no consequence and clearly shows that he violated the specific instructions of the mortgage company when he let her have the car, and particularly while she was using the car on a mission of her own at the time of the accident. Under this view the omnibus clause in the policy did not give coverage to Miss Curtis without permission and consent of the mortgage company. See Olgin v. Employers Mutual Cas. Co. 228 S.W.2d 552, n. r. e. See also Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, wr. ref., (opinion by Justice Alexander) points (1-5) page 386. As we understand the record here before us and the applicable law, in order for appellants to recover it was necessary for them to establish that Miss Curtis, at the time she had the accident at 2 a. m., on the day before she was to meet Hoskins in the evening, was acting for and on behalf of Hoskins within the scope of his employment and within the scope of the use that he had of the car and not merely on a personal errand of her own. It is without dispute that she was on a personal errand of her own at the time of the accident. It is true that Miss Curtis, who was a girl friend of Hoskins, was driving the vehicle with permission of Hoskins, but that she was driving it on a mission of her own and not of Hos-kins at the time of the accident. Hoskins was not the owner of the car but was an employee of the mortgage company who utilized the car for business and personal reasons, but he was specifically restrained from permitting any other person to use the vehicle such as it was being used at the time of the accident. That leads us to say that Miss Curtis was not an actual insured under the omnibus clause under the policy and we think the summary judgment of the trial court should be affirmed.

Each of appellants’ contentions has been considered and each is overruled.

Affirmed.


author: SAM D. JOHNSON, Justice.

text:
    HOUSTON SHOE HOSPITAL et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 54.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 10, 1968.
    Rehearing Denied Feb. 7, 1968.
    Michael A. Henry, Thomas J. Lykos, Jackson, McCrory & Henry, Houston, for appellants.
    Joe Resweber, County Atty., R. Cortez, Jr., Asst. County Atty., Houston, for ap-pellees.
   SAM D. JOHNSON, Justice.

Appellees, as plaintiffs, on March 24, 1964, filed their original petition for delinquent personal property taxes, penalties and interest, for the years 1961, 1962 and subsequent years. Appellant, Salvadore J. Maida, Mrs. Lena Maida and Houston Shoe Hospital, answered by way of general denial. Subsequently, on April 10, 1967, ap-pellees filed a request for admissions under Rule 169 of the Texas Rules of Civil Procedure and on April 24, 1967, appellants filed their answers thereto.

In May, 1967, appellees filed their motion for summary judgment, with supporting affidavit and tax statements attached. Defendants then filed a controverting affidavit setting up the defenses of non-ownership of a part of the property assessed and alleging grossly excessive assessment. The trial court granted summary judgment for appellees and from such judgment defendants perfect their appeal.

Appellant contends that the trial court erred in granting summary judgment because their sworn statement of non-ownership of a portion of the property sought to be taxed made a genuine issue of a controlling defensive fact which they were entitled to prove in trial. Appellee concedes that a personal judgment against a defendant for delinquent taxes should not be granted unless the defendant is shown to have owned the property assessed against him. Appellee contends, however, that the appellants conclusively admitted ownership of the property assessed against them when, under Rule 169, T.R.C.P., they answered under oath the request for admissions and admitted ownership of the property in question, and further, as a result of this admission, that appellants could not later deny by affidavit that which they had previously admitted.

The pertinent inquiry in the request for admissions asked, “It is true, is it not, that Houston Shoe Hospital owned personal property described as Merchandise, Machinery and Office Furniture during the years 1961, 1962 and 1963?” Appellants’ response was, “Defendants admit they owned the personal property therein described during the years 1961 to 1962. Further, they admit they owned said property up until October 28, 1963, from and after which date this property was owned by the Houston Shoe Hospital, Inc.” The next inquiry asked, “It is true, is it not, that the personal property of Houston Shoe Hospital, described as Merchandise, Machinery and Office Furniture, was located within Harris County, Texas?” Appellants’ responded, “Admitted.”

Appellants’ response to the request for admissions in no way qualified or restricted their admission of ownership to the property in question. Appellants’ response was not limited to part of the property or some of the property, or a portion of the property in issue described therein.

In Thornell v. Equitable Life Assur. Soc. of U. S., 385 S.W.2d 716 (Tex.Civ.App. 1964), no writ history, the appellant answered a request for admissions by admitting certain facts. Subsequently, appellee filed motion for summary judgment whereupon appellant filed controverting affidavits which tended to contradict the admissions. Notwithstanding the controverting affidavits, the trial court granted summary judgment for appellee and on appeal, the Court of Civil Appeals, in affirming said, “A fact admitted in response to a request for admissions under Rule 169, T.R.C.P., if and when it becomes a part of the record is a judicial admission. * * * A judicial admission is one which as long as it remains in the case is a conclusive admission. * * * 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, Tex.Civ.App., 165 S.W.2d 225, refused. An admission in pleadings cannot be contradicted by evidence until the pleading is withdrawn by amendment.”

We are of the opinion that the response of the appellants admitted ownership of the property in question and that appellants could not later deny by controverting affidavit that to which they had already admitted by sworn answer. The rule of the Thornell case, supra, citing extensive authority, is determinative of this issue.

Appellants’ second contention is that the trial court erred in granting summary judgment because their sworn statement that the assessed valuations bear no reasonable relation to the actual market value of the property and that such valuations were grossly excessive, made a genuine issue of a controlling defensive fact which appellants should be entitled to prove at trial. The response contained in defendants’ controverting affidavit was, “I know not upon what basis the subject properties were assessed by plaintiff, but I do know of my own personal knowledge, that the assessments upon which plaintiffs’ charges are based, bear no reasonable relation whatever to the actual market value of-the properties situated in the various Houston Shoe Hospital locations for the years in suit, and are, in fact, so grossly excessive as to constitute a fraud upon these defendants and a confiscation of their property and violation of the constitution of the State of Texas.”

Appellee contends that the quoted language of the affidavit merely sets forth conclusions and deductions and does not state facts showing that the tax on their property had been incorrectly assessed. Appellee further contends that the trial court properly granted summary judgment because the affidavit, without facts, was not sufficient to raise a fact issue.

Rule 166-A, Sec. (e), requires that opposing affidavits be “made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence.” and “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The question that must be determined is whether the allegations in appellants’ affidavit, viewed in their most favorable light, make out a justiciable fact issue entitling appellant to a trial on the merits. We believe that they do not.

Valuations will not be set aside merely upon a showing that the same are, in fact, excessive. State v. Houser, 138 Tex. 28, 156 S.W.2d 968. A reasonable discrepancy, even if it does exist, between the true value of the property and the value at which it is assessed for taxes, will be permitted to cover the difference in judgment as to the value of the property. Dallas County v. Dallas Nat. Bank, 142 Tex. 439, 179 S.W.2d 288, 289.

Here, appellants’ opposing affidavit consists of conclusions and deductions of excessiveness and contains no factual information of any nature that would indicate that the tax had been incorrectly assessed. This is not sufficient. See Langford v. Langford, Tex.Civ.App., 337 S.W.2d 181, no writ history, and Pentecost v. Travelers Ins. Co., Tex.Civ.App., 238 S.W.2d 978, no writ history. “ * * * general statements in the nature of legal conclusions, not supported by factual statements, are not sufficient to raise a fact issue.” Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253, 257, no writ history, (citing numerous cases).

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    Robert A. MANN, Individually and as Trustee under the Will of D. P. Mann, Deceased, Appellant, v. W. H. RISINGER, Appellee.
    No. 6941.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1968.
    Rehearing Denied Jan. 31, 1968.

      Wheat, Wheat & Stafford, Woodville, for appellant.
    Clark Anderson, Lufkin, for appellee.
   PARKER, Justice.

W. H. Risinger sued Robert A. Mann, individually and as Trustee under the Will of D. P. Mann, deceased, for recovery of profits from an alleged joint adventure involving real property, alternatively suing on a written contract which had expired by its original terms, alleged to have been orally modified and extended, and/or in trespass to try title, and/or a suit to enforce a trust in land. Upon a jury verdict, plaintiff recovered $5,700.00 from defendant. Defendant moved for judgment non ob-stante veredicto. This motion was refused. The parties will be designated as in the trial court. We reverse the judgment of the trial court and render judgment that plaintiff take nothing.

In answer to Special Issue No. 1, the jury found that on August 7, 1962, plaintiff and defendant mutually agreed to become joint adventurers as to two tracts of land. Defendant contends there was no evidence to support the finding of the jury as to one of the elements of a joint adventure, namely, the obligation to share losses. This contention is sustained for the reasons hereinafter set forth. This is not a suit to reform a contract dated August 7, 1962, or to reform a deed dated August 8, 1962. Plaintiff and defendant entered into the following written agreement:

August 7, 1962
EXHIBIT “A”
TO WHOM IT MAY CONCERN:
VOL 227 PAGE 123
This will confirm an agreement between the undersigned, W. H. Risinger and Robert A. Mann, Trustee under the Will of D. P. Mann, deceased, whereby it is agreed that Robert A. Mann, Trustee shall advance the sum of $23,499.95 in exchange for a General Warranty Deed from W. H. Risinger on 147.7 acres of land in the Robert Conn Survey, Abstract No. 171 of Tyler County, Texas. It is understood and agreed that the timber on this property shall be marketed within the next twelve months period and then the property disposed of within a two year period from this date hereof. After the sale of timber and the property is made, the proceeds thereof shall be applied first towards the repayment to Robert A. Mann, Trustee of $23,499.95. After this sum is recovered then any additional amount which shall be recovered will be divided equally between W. H. Risinger and Robert A. Mann, Trustee of the D. P. Mann Trust, after any additional extra expenses have been paid. No interest shall accrue on the sum advanced before division of profits.
ACCEPTED AND AGREED
(Signed) W. H. Risinger W. H. Risinger
(Signed) Robert A, Mann Robert A. Mann, Trustee
FILED :
March 9, 1967 8:25 A.M.

There is no evidence of a prior fiduciary relationship between the above parties. The plaintiff did not agree to share losses under this agreement and testified he never was to pay any expense. The trial court instructed the jury that one of the indispensable elements of a joint adventure is: “Each party must have an obligation to share losses.” This issue was submitted in accordance with the rule announced in Kaiser Gypsum Company v. Jordon (Ct.Civ.App.1966) 399 S.W.2d 588 (writ ref., n. r. e.). On page 591 of such opinion the court said:

Among the requisites of a joint venture are (a) the right to participate in the profits, (b) the obligation to share losses, (c) joint control of the enterprise. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011; Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 722.

See also W. H. Hodges & Co. of Alexandria, Inc. v. Donley County State Bank, 407 S.W.2d 221 (Sup.Ct.1966).

Defendant contends there was no evidence of probative force to support the answer of the jury to Special Issue No. 2, finding that when plaintiff conveyed the lands to Robert A. Mann, Trustee, on August 8, 1962, the grantor and grantee mutually agreed that grantee would hold the land for the benefit of plaintiff and defendant. The deed itself considered with the agreement of August 7, 1962 is the only agreement between plaintiff and defendant on August 8, 1962.

Plaintiff asserts that defendant was in effect a constructive trustee relying on Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960). In the Omohundro case, the plaintiff and defendant had had previous dealings with each other as partners and the transaction made the basis of the suit was the last of several transactions between the parties. In the instant case, there was no prior fiduciary relationship between defendant and plaintiff.

In the case of Consolidated Gas and Equipment Company v. Thompson, 405 S.W.2d 333 (Sup.Ct.1966) (one of the cases cited being the Omohundro case), the court said:

Our holdings above cited are to the effect that for a constructive trust to arise there must be a fiduciary relationship before, and apart from, the agreement made the basis of the suit. Such is our holding here. As stated, the fact that one businessman trusts another, and relies upon his promise to carry out a contract, does not create a constructive trust. To hold otherwise would render the Statute of Frauds meaningless.

Again, the agreement between the parties of August 7, 1962, together with the deed of August 8, 1962, from plaintiff to defendant precludes the idea of a constructive trust in favor of plaintiff. These two instruments plainly state that Mann is trustee under the Will of D. P. Mann, deceased. This excludes the idea that he was trustee for the plaintiff, Risinger.

Defendant contends there was no evidence to support the jury finding in answer to Special Issue No. 3 that the contract dated August 7, 1962 did not expire two years from its date. As a matter of law, the contract of August 7, 1962 expired and became of no further effect tv/o years subsequent to August 7, 1962 unless validly extended. There was no valid extension.

The jury found in answering Special Issue No. 4, that prior to August 7, 1964, plaintiff and defendant mutually agreed to extend the time during which the original agreement of August 7, 1962 could be performed. There was no written modification. The jury answered “Yes,” to Special Issue No. 5 “that the contract or memorandum dated August 7, 1962 was modified or changed in any particular other than the extension of the time for performance.” Defendant contends there is no evidence of probative force to show a mutual agreement to extend the term of the contract and that its motion for' judgment non obstante vere-dicto should have been granted in view of the jury’s finding that the time for performance of the contract had been orally extended for an indefinite time, and other terms of the contract also had been modified. Defendant’s contentions are sustained.

In considering all “no evidence” points, only the evidence favorable to the jury’s findings are considered. The plaintiff testified:

Q. (By Mr. Anderson) Mr. Risinger, you heard Mr. Mann testify he was under the impression all rights expired at the end of two years as far as he was concerned ?
A. No, sir.
MR. WHEAT: Did you sustain the objection?
THE COURT: No, sir, the instrument speaks for itself.
MR. WHEAT: That was my same impression. I don’t know of any proper evidence to be submitted to the jury when the instrument speaks for itself.
Q. (By Mr. Anderson) Was that your understanding ?
A. Yes, sir.
THE COURT: The objection is overruled.
Q. (By Mr. Anderson) I’m not so sure what I asked you, Mr. Risinger, was it your understanding that the contract would just die at the end of the two year period or not ?
A. It would not die at the end of the two year period.
MR. WHEAT: That’s my same objection.
THE COURT: The objection is sustained about it dying.
Q. (By Mr. Anderson) I will rephrase it to this extent. Mr. Risinger, was it your understanding that you would have a continuing right to try to sell the land?
A. Yes, sir.
MR. WHEAT: Just a minute. The Court just ruled the contract speaks for itself.
THE COURT: The objection is sustained.
MR. WHEAT: I ask the Jury be instructed to disregard the question and answer.
THE COURT: Ladies and Gentlemen, you will disregard the last question and answer about what the witness thought.
Q. (By Mr. Anderson) Mr. Risinger, when you went back to Mr. Mann about two or three months before the end of the two year period the memorandum details, what did he say to you and what did you say to him ?
MR. WHEAT: I believe I will repeat my objection that I made earlier and I assume I have a running objection to this line of testimony?
THE COURT: You may answer, sir. The objection is overruled.
A. We talked about the land and I told him I didn’t think we were going to get the price that we had been asking for it and we talked about lowering the price, and I thought I could sell it in a reasonable length of time. It would be naturally more profitable for us both if we would hold it a little longer. He told me, “You will have to pay interest then.” “You will have to pay the Mann Estate interest.” I said, “How much” ? He said, “Eight per cent.”
Q. Were you told that or did you agree to it?
A. Well, I didn’t say anything 'because he controlled it. I had to say, “You’re the man with the money.” (Emphasis ours)
Q. So that was the statement from him rather than an agreement on your part?
A. Yes, sir. (Emphasis ours)
Q. Did you and Mr. Mann have any agreement as to how long you would be allowed to sell this land in the future?
A. No.
Q. Did you ever have any agreement other than the written memorandum that anything would happen to the land if you didn’t sell it within two years?
A. No, sir.

Plaintiff’s attorney states in his brief:

Mr. Mann flatly denies that there was any agreement to extend the terms or to modify the contract. Of course, to modify or extend the terms of the contract would require the mutual consent of both parties.

After quoting plaintiff Risinger’s testimony above, plaintiff in his brief states:

This is the only evidence in this record that would indicate any type of alteration or change in the agreement. The reading of this testimony will indicate that it was Mr. Mann who was demanding eight per cent and that Mr. Risinger did not ever agree to this alteration.

The other side of this “mutual agreement” is Mann’s demand being refused, Mann agreed to nothing. All this amounted to was a conference with no agreement to extend, change or modify the August 7, 1962 written agreement. It is too nebulous and uncertain to conclude there was a mutual agreement.

Defendant urges that if the oral agreement extended the time of performance of the original contract of August 7, 1962 indefinitely and modified it otherwise, as found by the jury, such oral agreement was in violation of The Real Estate License Act, Section 28 of Article 6573a. In Dracopoulas v. Rachal, 411 S.W.2d 719 (Sup.Ct.1967) a similar case to this case was being considered. In the instant case, if there was an extension of time for an indefinite period, then another provision was changed. The August 7, 1962 agreement did not obligate plaintiff to pay interest on the money paid by defendant for the purchase price of the lands plus all expenses. The alleged extension agreement did. As in the Dracopoulas case, we regard this as an oral agreement violating the requirement that “the promise or agreement upon which action shall be brought * * * must be in writing and signed by the party to be charged therewith. * * * ” The party to be charged with interest was plaintiff.

The court sustained defendant’s exception to the pleadings of plaintiff attempting to vary the terms of the written instruments. Defendant, by answer, specially denied entering into any agreement with plaintiff to extend the term of the written contract of August 7, 1962, had a general denial and pled the two and four year statutes of limitation, the provisions of Article 3995(4, 5), Article 1288 and the provisions of Article 6573a and 7425b-7, Vernon’s Ann.Civ.St., in bar of plaintiff’s asserted cause of action. During the trial, the court sustained defendant’s objections to the attempts of plaintiff to vary the terms of the written instruments. However, the plaintiff was allowed to testify that he had an interest in the land that did not cease after the two-year period, or ten-year period or any period. The deed from the Herringtons to Risinger excepted and retained an undivided ⅛ of all the oil, gas and other minerals, in, on and that may be produced from the lands. This deed was promptly filed of record on August 7, 1962. The deed from Risinger to defendant of August 8, 1962, was a straight warranty deed conveying the lands without any mineral reservations. The title to these lands seem to have been questioned by attorneys for prospective purchasers prior to and during the two-year term. Mr. J. A. Mooney, an attorney and abstractor, examined the title to these lands in 1962 at the instance of Mr. Roark. He advised Mr. Roark that the Herringtons did not have clear title to the land and that he would not write a title policy on the lands. Roark requested him to clear the title and Mooney refused. The chief defect was missing heirs whose title had not been acquired. This was before Mr. Risinger obtained the money from Mr. Mann to pay for the deed from the Her-ringtons. In 1963, the defendant paid $1,100.00, plus one-half the court costs to settle a law suit involving the title to the 60-acre tract, the plaintiffs being J. D. Herrington, et al. It was agreed by Ris-inger that Mann would not sell the timber within one year because they considered the timber as more valuable in selling the lands with the timber standing than the total of the market price of the timber if cut plus the market price of the land with no timber. Never, at any time during the two-year period, was any purchaser found willing to pay a price yielding a profit. No timber was sold during the two-year period. Beginning in December, 1964, through February 9, 1965, Mann sold timber suitable for posts to International Paper Company that would not destroy the market value of the land. The total amount of money from posts was $238.15. During the two-year period, an oil, gas and mineral lease bonus yielded $1,963.50. This bonus was on a basis of $15.00 an acre, which means that Humble considered that lessor did not have title to 13.09 acres. Rentals of $3.00 an acre were paid.

This property was not owned by plaintiff, Risinger. It was owned by defendant. Defendant acquired the title by the general warranty deed from plaintiff. “Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal.” Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 514, 19 A.L.R. 1387 (1921). The written agreement of August 7, 1962 and the deed from W. H. Risinger to Robert A. Mann, Trustee, dated August 7, 1962 are to be construed together. The complete control of the sale of the .property was vested in defendant. Throughout his testimony, the plaintiff, Risinger, admitted that it was up to the defendant to fix the price for the sale of the lands. During the two-year period, plaintiff, Ris-inger, could not require defendant to sell the land or any part thereof, nor could he interfere with defendant’s sale of the land for any price or under any condition, nor could he demand any profits from a sale that had not been made by defendant.

Plaintiff Risinger testified that he and Mr. Mann, in the early part of the two-year period, agreed that the 60-acre tract should bring $300.00 an acre and the 87.7-acre tract should bring $325.00 an acre. No purchasers for either of these tracts were found at those prices or at any other price until 1966, according to the evidence.

Plaintiff, W. H. Risinger, on March 15, 1966, as “Owner” signed a listing contract —exclusive authority to sell — with a licensed real estate broker, T. E. Phillips, to sell 87.7 acres, Robt. Conn Survey, for $237.50 an acre. There is no description of the 87.7 acres and no mention of mineral reservations. The broker was to have a 5% commission. Phillips testified he found a buyer for not more than 78 acres in the person of Birdwell. Where the 78 acres were located, we know not. Birdwell did not sign as buyer. Birdwell said he offered to buy 87.7-acre tract at that price, the offer being to plaintiff. Later, he talked to Mann and made no offer, although Mann wanted to sell it.

The only other prospective purchaser was a Mr. Parks. Plaintiff Ris-inger did not tell Mr. Mann about Mr. Parks’ offer. This latter offer developed June 14, 1966. Parks testified he never offered Mr. Mann anything for the 60-acre tract. The only man Mr Parks talked to was Mr. Risinger. Plaintiff Risinger testified that when he advised Mr. Mann of Birdwell’s offer in May of ’66, Mr. Mann told him, let me talk to the estate about it and I’ll let you know at 1 o’clock. At 1 o’clock, ¡defendant advised him that his time was out and he had no interest in the land. Risinger expected to get one-half of the profit out of the sale of these two tracts of land. Defendant told him he didn’t have any claim on it and that he wasn’t going to pay Mr. Phillips any commission and then pay plaintiff half the profit. There is no writing containing within itself all the essential particulars of a concluded contract for the sale of land. No deed was prepared. No contract of sale was signed either by the owner or by a purchaser. No tender of money for the purchase price was ever made to Mr. Mann. As said in American Nat. Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164 (S.Ct.1938):

To form a binding contract, it must appear that the party to whom the offer is made accepts such offer and communicates such acceptance to the person making the offer;

and in Little v. Perry, 410 S.W.2d 286, 290 (C.C.A.1966 n. r. e.):

Also, to constitute a valid tender the thing to be tendered must be actually produced and offered to the party entitled thereto. Cornelius v. Cook, Tex.Civ.App., 213 S.W.2d 767; Johnson Mfg. Co. v. Edwards, Tex.Civ.App. 344 S.W.2d 506.

Risinger testified that after defendant was reimbursed for the purchase price and all expenses his share of the profits would include one-half of any money left over plus one-half of any minerals not sold, even though the sale of the property was accomplished 10 years from date. Such contention is at variance with the written contract of August 7th, providing that “any additional amount which shall be recovered will be divided equally between W. H. Risinger and Robert A. Mann, Trustee of the D. P. Mann Trust” does not mean land. Such modification involving the sale of real estate would have to be in writing and not violate Section 4, Article 3995 or Article 6573a. Not being in writing, same is void.

Judgment of the trial court for damages is here reversed and judgment rendered that W. H. Risinger take nothing as to the title to and possession of the lands involved in this suit as against Robert A. Mann, individually and as Trustee under the Will of D. P. Mann, deceased, and that W. H. Ris-inger take nothing in the way of damages against Mann in such capacities.


author: BARROW, Chief Justice.

text:
    Alberto FUENTES et al., Appellants, v. STRAUS-FRANK COMPANY, Appellee.
    No. 14655.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1968.

      James R. Warncke, San Antonio, for appellants.
    Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee, Straus-Frank Company, a Texas corporation, recovered judgment from appellants, Alberto Fuentes and Raymon Fuentes, individually and doing business as Fuentes Bros. Auto Supply, after a non-jury trial, for the sum of $803.01, together with attorney’s fees in the amount of $350.00, in its suit upon an account verified in accordance with Rule 185, Texas Rules of Civil Procedure. This appeal is made without a statement of facts and the only question presented is the propriety of awarding attorney’s fees under Art. 2226, Vernon’s Ann.Civ.St.

Appellee’s verified petition sought to recover for goods, wares and merchandise sold and delivered to appellants at their special instance and request, of the reasonable market value in Bexar County, Texas, of $803.01. Attached to said petition as Exhibit “A” was a statement on appellee’s letterhead providing “Balance July 10, 1966, $803.01.” Appellants did not except to this petition and filed only a general denial. There is no contest of the principal amount of $803.01. Appellants urge that since the statement sued upon was not •itemized and the trial court found that ap-pellee did not prove any specific transaction to make up the balance of $803.01, ap-pellee is not entitled to recover attorney’s fees.

The trial court heard evidence and made formal findings that appellee sold and delivered to appellants at their special instance and request certain goods, wares and merchandise of the reasonable market value in Bexar County of $803.01. Further, that the account was just and true, and that all just and lawful offsets, payments and credits had been allowed, and that demand had been made more than thirty days prior to the institution of the suit. The court also found that the reasonable value of the legal services rendered to appellee was $350.00.

These findings are not challenged in any way by appellants and they fully support a recovery for attorney’s fees under Art. 226, supra. In Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958) the Supreme Court held that a sworn account, as used in this statute, should be “defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract.” See also Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961).

Here there was a sale by appellee to appellants of goods, wares and merchandise whereby the relationship of debtor-creditor was created. There is not even a suggestion in the record that the suit was based upon a special contract rather than a sworn account. The trial court did not err in awarding reasonable attorney’s fees.

The judgment is affirmed.

CADENA, J., not participating.


author: BATEMAN, Justice.

text:
    TANENBAUM TEXTILE CO., Inc., Appellant, v. Joseph SIDRAN, Appellee.
    No. 16995.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 22, 1967.
    Rehearing Denied Feb. 2, 1968.

      G. H. Kelsoe, Jr., Kelsoe & Stone, Dallas, for appellant.
    Harold B. Berman and Emil Corenbleth, Dallas, for appellee.
   BATEMAN, Justice.

Involved here is the question of liability of a manufacturer for sales commissions. Alleging an oral contract made in appellant’s New York office, the appellee sued and obtained a judgment based on a jury verdict.

The jury found in answer to Special Issue No. 1 that on or about January 24, 1962 appellant agreed to pay appellee “a commission for producing a sale of piece goods for defendant [appellant] of 1 per cent of the sale price of said merchandise.” In response to the next five special issues, which were submitted conditionally upon an affirmative answer to No. 1, the jury found that appellee produced sales for appellant as follows:

(2) To J. B. Mfg. Co., San Antonio, Texas, 844,000 yards of cotton shirting at $0.4613.
(3) To J. M. Wood Mfg. Co., Waco, Texas, 1,400,000 yards of cotton sheeting at $0.46.
(4) To Iberia Mfg. Co., Iberia, Mo., 735,000 yards of Taupe Rubber at $0.79.
(5) To Gillsam Mfg. Co., Dublin, Texas, 78,000 yards of Green Rubber Material at $0,835.
(6) To Bonham Mfg. Co., Bonham, Texas, 175,000 yards of Marine Rubber Material at $0,845.

In response to Special Issue No. 7 the jury found that appellant agreed to pay appellee a commission of 1 cent per yard on Marine Rubber Material furnished Iberia Mfg. Co. on subcontract to Brown-wood Mfg. Co., Brownwood, Texas, for services of appellee in producing such sale for appellant. The jury then found, in answer to Special Issue No. 8, that appellee produced a sale for appellant to Iberia Mfg. Co. of 270,599 yards of Marine Rubber Material pursuant to the agreement inquired about in Special Issue No. 7.

Judgment was rendered for appellee on this verdict, and appellant asserts fifteen points of error on appeal.

By its first and fifteenth points appellant complains of the trial court’s refusal to permit the filing of its first amended original answer. Appellant was first represented by certain attorneys who filed an original answer consisting only of a general denial. They later withdrew and sent their file on the case to their successors, who tried the case for appellant and are its attorneys of record on this appeal. In the file was an office copy of an amended answer specifically alleging as defenses the New York and Texas Statutes of Frauds, and another New York statute. At the end of the pleading was a certificate that a copy had been sent to appellee’s counsel, from which appellant’s trial counsel assumed, without further investigation, that the amended answer had been filed and a copy furnished to appellee’s counsel. Appellant’s trial counsel did not discover that the amended answer had not been filed until after the close of the evidence. He then filed a motion for leave to file the amended answer, whereupon appellee’s counsel expressed surprise and requested leave to withdraw his announcement of ready. The court refused the same and also refused to permit the filing of the amended answer. Appellant’s counsel had made no effort to prove the New York statutes alleged in the amended answer and at no time moved the court, pursuant to Rule 184a, Vernon’s Texas Rules of Civil Procedure, to take judicial notice thereof. The pleadings were not read to the jury, and in orally stating appellant’s position the attorney did not mention these New York and Texas statutes. When the court refused leave to file the amended answer appellant did not request leave to withdraw its announcement of ready and did not request a continuance or postponement.

The law invests the trial court with broad discretion in such matters, and its ruling will not be disturbed on appeal unless abuse of such discretion be shown. Marburger v. Ramsey, 398 S.W.2d 379 (Tex.Civ.App., Eastland 1965, writ ref’d n. r. e.); 46 Tex.Jur.2d, Pleading, p. 26, § 207. We see no such abuse here.

Moreover, we think appellant waived its right to complain of the court’s refusal by not requesting either a continuance or a mistrial, but electing to speculate on the result of the verdict. Colls v. Price’s Creameries, Inc., 244 S.W.2d 900 (Tex.Civ.App., El Paso 1951, writ ref’d n. r. e.); Burnett v. Rutledge, 284 S.W.2d 944, 947 (Tex.Civ.App., Amarillo 1955, writ ref’d n. r. e.).

Appellant’s first and fifteenth points of error are overruled.

By its second point of error appellant challenges the oral contract sued on as not being sufficiently definite to be enforceable. The jury found, in answer to Special Issue No. 1, that the parties had agreed that appellant would pay appellee “a commission for producing a sale of piece goods for defendant of 1 per cent of the sale price of said merchandise.” The phraseology of the issue coincides with appellee’s pleading and, as will hereinafter be shown, there was competent evidence of probative force to support it.

Appellant says the agreement so found by the jury is too indefinite to be enforceable in that: (1) its duration is not specified and (2) the time and place of payment are not specified. We do not agree with appellant.

Where a contract is silent as to the time it is to run, or provides that it is to run for an indefinite term, it is not invalid for that reason but may be terminated by either party at any time. Byrd v. Crazy Water Co., 140 S.W.2d 334 (Tex.Civ.App., Dallas 1940, no writ); Island Lake Oil Co. v. Hewitt, 244 S.W. 193 (Tex.Civ.App., Beaumont 1922 writ dism’d); 17 Am.Jur.2d, Contracts, § 486, pp. 956, 957. Such a contract is not too indefinite to be enforced, because in such circumstances the law will imply that a reasonable time is meant. Davis v. Davis, 44 S.W.2d 447, 450 (Tex.Civ.App., Texarkana 1931, no writ); Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1106 (1923); 13 Tex.Jur.2d, Contracts, § 103, p. 256; 17 Am.Jur.2d, Contracts, § 486, p. 956. “The determination that an agreement is sufficiently definite is favored.” 17 Am. Jur.2d, Contracts, § 75, p. 414, citing Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823 (1951). This is particularly true where one of the parties has performed his part of the contract. 17 Am.Jur.2d, Contracts, § 75, p. 415; Id. § 78, p. 418, and § 80, p. 420.

A manufacturing company which has agreed to pay a salesman a commission on all sales produced by him may not, after accepting the benefits of the salesman’s activities, escape liability for the commissions by contending that the contract is void and unenforceable because it did not specify the time of its duration or because of its failure to specify the time and place of payment of the commissions. The law implies that a reasonable time was intended by the parties, and in the absence of a provision designating the place of payment the law makes the place of payment the domicile of the payor. Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1106-1107 (1923); Zihlman v. Fleetwood, 2 S.W.2d 881, 883 (Tex.Civ.App., El Paso 1928, no writ); 13 Tex.Jur.2d, Contracts, § 298, p. 545.

For these reasons the second point of error is overruled.

The court submitted separate special issues inquiring whether appellee had produced the six sales alleged in his petition. All were answered in the affirmative. Appellant had requested the submission of six special issues inquiring, with respect to each such sale, whether appellant was paid for the merchandise sold. Appellant argues under its third point of error that the refusal of these issues was reversible error because under the oral contract sued on appellee would not be entitled to a commission on a sale until appellant received payment for the goods. Appellee on cross-examination first testified that under the agreement he was entitled to his commission regardless of whether appellant got paid; then later admitted that in his oral deposition before trial he had testified: “I would earn my commission on the sales that would be made, when the merchandise was paid for.”

However, in submitting Special Issue No. 1 the court merely inquired whether appellant agreed to pay appellee “a commission for producing a sale of piece goods for defendant of 1 per cent of the sale price of said merchandise,” with no mention of the matter of payment to appellant for the merchandise. Appellant did not object to the issue on the ground that this important element was omitted; and it did not request the submission of an issue on whether it was in fact an element of the agreement. Unless and until there was first a finding that it was an element, the six requested special issues would be immaterial. Therefore, there was no error in refusing to submit them, and the third point of error is overruled.

Under its points of error four and five appellant urges that it was error to submit Special Issue No. 1 since the oral contract inquired about would be in violation of the New York and Texas Statutes of Frauds. These defenses were not affirmatively set forth in the answer, and no objection was made to appellee’s evidence of the contract on this ground at the time it was offered. Therefore, the matter was not before the court and the defenses were not entitled to consideration in submitting the case to the jury. Rule 94, T.R.C.P.; Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958); Cessac v. Leger, 214 S.W.2d 860 (Tex.Civ.App., Beaumont 1948, writ ref’d n. r. e.) ; Pams Advertising Agency, Inc. v. Hartley, 357 S.W.2d 764 (Tex.Civ.App., Waco 1962, no writ). The fourth and fifth points are overruled.

By its sixth point of error appellant says the trial court erred in submitting Special Issue No. 1 because appellee “as a matter of law failed to meet the burden of proof required of him.” Of course, if the issue is one raised by the evidence (and we hold that this issue was so raised), then it is the function of the jury to determine whether the burden of proof was met. The issue was so phrased as to put appellee under that burden, and the affirmative answer of the jury determines that the burden was met. The sixth point of error is overruled.

By its next two points of error appellant presents: (7) that there was no evidence to support the finding of the jury in answer to Special Issue No. 1, and (8) that such finding is against the great weight and preponderance of the evidence. We have carefully studied the entire statement of facts and are of the opinion that neither point is well taken.

The evidence offered by appellee showed that all of appellant’s corporate shares were owned by Lawrence Tanenbaum (its president) and his wife and children, and that in January, 1962 appellee met with Tanen-baum in the latter’s New York office, no one else being present, when it was orally agreed that appellant would pay to appellee a commission of one per cent “of the dollars and cents’ value of any business he takes on through my recommendations or putting him onto it,” and that Tanenbaum told one of appellant’s employees “of our arrangement and understanding * * * that I was to refer some business to them and on a commission basis.” Appellee also testified that he agreed to the arrangement “and started to recommending him some business.”

Appellee’s testimony was also to the effect that at some later time he was in Tanenbaum’s office when one of his, Tan-enbaum’s, employees came in and handed appellee a check for $1,200 and that when asked what it represented Tanenbaum said, “Oh, that’s some of the commissions I owe you.” Appellee refused to accept the check because it was for an inadequate amount and not accompanied by a statement showing what it covered. This incident was also related in the testimony of B. L. Krocker, one of appellee’s employees.

On cross-examination appellee testified that Tanenbaum told him to go out and get business and that he would be getting the commission; that Tanenbaum told his employees Kornhauser and Stilsky of the arrangement; that appellee talked with Tanenbaum about each of the sales he had negotiated and procured, and that Tanen-baum agreed to pay him a commission on each one of them. He also said that under his agreement he had the duty of soliciting and seeing that the people bought the goods from Tanenbaum, and that if he was of any help to Tanenbaum in getting a contract, and Tanenbaum saw fit “to take over,” his commissions were earned, and that all he had to do to earn a commission was to be “helpful.”

If we reject all evidence to the contrary and consider only that which tends to support the finding in question, as we must do in considering this “no evidence” point (No. 7), we cannot escape the conclusion that there is evidence of probative value to support the finding. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951). Therefore, Point of Error No. 7 is overruled. However, Point No. 8 asserts that the finding is against the great weight and preponderance of the evidence, requiring that we consider and weigh all the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). This we have carefully done and, without unduly expanding this opinion by setting forth the substance of it, let us merely say that the testimony given by appellant’s witnesses categorically denied appellee’s testimony on the matter. But the jury had a right to and evidently did believe appellee’s testimony, and we cannot say that the finding, considering all of the evidence, is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, supra. Therefore, Point of Error No. 8 is also overruled.

By its Points of Error Nos. 9, 10, 11, 12' and 14 appellant challenges the sufficiency of the evidence to support the jury’s findings, in response to Special Issues Nos. 2, 4 and 8, that appellee produced a sale for appellant to J. B. Mfg. Co. of San Antonio, Texas and two separate sales to Iberia Mfg. Co. of Iberia, Missouri. Appellee testified that he talked to Bernie Ritchie, the executive head of J. B. Manufacturing Company, then called Tanenbaum, told him of the contact and asked him if he would like to get an order from that company, to which Tanen-baum replied that he was always looking for any good business but that he questioned the' credit of this company. When appellee outlined a financing plan that could be used and assure Tanenbaum of payment for the merchandise Tanenbaum replied that if such a plan could be arranged he would be happy for appellee “to follow through and see that we get the business.” He said he then contacted Ritchie again and reported to Tanenbaum that he could prevail on Ritchie to give the business to appellant, and that Tanenbaum instructed him to go ahead with the deal; that he then “finalized the contract” and that appellant got the business.

With respect to the sales to Iberia Manufacturing Company, appellee testified that after he made the contract with Tanen-baum he learned through a telephone call from Mr. Cunningham, president of the Iberia Company, that the company had received a government contract. He told Tanenbaum of this and that although Cunningham had previously bought materials from a competitor of appellant he, appellee, could be instrumental in getting the order for appellant and in getting Cunningham “starting to do business with Tanenbaum Textiles.” Tanenbaum replied, “by all means to go ahead and get the business.” He then testified that Tanenbaum suggested that he go with Cunningham to the office of Joel Turner, who had been financing Cunningham and supplying him material, and tell him that the materials would not be bought from him, but from Tanenbaum, who would be billing it direct to appellee, “and that for that piece of business Tanen-baum would pay me one penny a yard instead of the one per cent commission”; that this related to the subcontract which Iberia Manufacturing Company had with Brown-wood Manufacturing Company, a corporation owned by appellee; that this arrangement was consummated along those lines; that Tanenbaum shipped the merchandise to Brownwood but did not pay appellee his one cent a yard commission. This was the sale inquired about in Special Issue No. 8.

Appellee said he met with Cunningham twice, the first time in Tanen-baum’s office in New York City, and the second time when he and Tanenbaum visited with Cunningham at the Iberia, Missouri plant; that in the New York conference Tanenbaum told him of a suggestion Cunningham had made for the formation of a corporation to be owned by the three of them and which would be paid a two per cent commission on all business produced for appellant by Cunningham and appellee, instead of appellee’s agreed one per cent. Appellee said he rejected this suggestion. They discussed his one per cent commission arrangement in the meeting in Iberia, and that he and Tanenbaum again discussed it on the plane trip back to New York. He said that later Tanenbaum told him over the telephone he had consummated the deal with Cunningham and “that he thought it was a good piece of business for him and that in no way would it interfere with any situation that I was having with Mr. Tanenbaum as far as our deal, as far as commissions were concerned.” He also testified that he was the procuring cause of Cunningham doing business with appellant and was claiming a commission on both sales to Iberia Manufacturing Company. These were the two sales which the jury found, in answer to Special Issues Nos. 4 and 8, had been produced by appellee. Applying the same tests, and under the same authorities, hereinabove mentioned in our disposition of Point of Error No. 7, we find that there is evidence of probative value to support the answers to Special Issues Nos. 2 and 4 and therefore overrule Points of Error Nos. 9 and 11.

We have also carefully considered all of the evidence pertaining to these issues and are not persuaded that the answers of the jury thereto are so contrary to the great weight of the evidence as to be manifestly wrong. In re King’s Estate, supra; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 T.L.R. 361. Therefore, Points of Error Nos. 10, 12 and 14 are overruled.

By its Point of Error No. 13 appellant says the trial court erred in submitting Special Issue No. 8 (as to whether appellant agreed to pay appellee a commission of one per cent per yard on material furnished to Iberia Manufacturing Company on subcontract to Brownwood Manufacturing Company) because the undisputed evidence was that Iberia had bought the material from appellant prior to the letting of the subcontract to Brownwood and as a matter of law appellee could not have been the producing cause of the sale. This point must be overruled because the evidence was not undisputed. It is true that Cunningham, a disinterested witness, so testified but his testimony on that matter is in conflict with that of appellee. We hold, therefore, that Special Issue No. 8 was properly submitted and overrule Point of Error No. 13.

The judgment of the trial court is

Affirmed.


author: DIXON, Chief Justice.

text:
    Myrtie PREWITT et al., Appellants, v. Jessie Fay WALLER, Appellee.
    No. 17001.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1967.
    Rehearing Denied Feb. 2, 1968.

      Sam Rodehaver of Hooks & Wyrick, Dallas, for appellants.
    Gerald R. Coplin of Passman, Jones, Stewart, Andrews & Hunter, Dallas, for appellee.
   DIXON, Chief Justice.

Myrtie Prewitt and Duggan Prewitt, individually and doing business as Prewitt Cleaners, have appealed from a judgment of $9,500 in favor of appellee Jessie Fay Waller, who was an employee of appellants.

The suit is a common law action for damages alleged to have been sustained by appellee Waller when she fell over a rubber rug or mat while in the course of her employment on premises where appellants were operating their business. Appellee further alleged that appellants did not carry workmen’s compensation insurance, though eligible to do so; therefore under Art. 8306, Sections 1 and 4, Vernon’s Ann.Civ.St., appellants were not entitled to the defense of contributory negligence.

Appellants made Guy Lewis, an insurance agent, a third party defendant. They alleged that some time before appellee’s accident they had applied through Lewis for workmen’s compensation insurance, but Lewis had negligently failed to present their application to the company he represented. The third party action against Lewis was severed from appellee Waller’s suit and this appeal is concerned only with the judgment against the Prewitts.

In an amended petition appellee alleges that on August 6, 1964 she was an employee of appellants’ at 4313 Bryan Street in the City of Dallas, one of two locations where appellants operated their business. On the occasion in question upon arriving at work at about 7:15 A.M. while she was walking down an aisle she stumbled and fell over a rubber rug which had been left protruding in the aisle. As a result she suffered serious injuries.

In her amended petition appellee alleged that appellants were negligent (1) in failing to furnish her a safe place in which to work; (2) in failing to remove the mat upon which appellee tripped and fell; and (3)in failing to provide safety appliances, including the mat, which were of such a kind, nature and character as to be safe.

Appellants filed a motion for judgment non obstante veredicto which was overruled. The court rendered judgment based on the jury verdict.

We shall first consider appellants’ third point of error in which they assert error on the part of the court in accepting the jury’s finding in answering Special Issue No. 10. They say that there is no evidence to support the jury’s finding that on the day of the accident appellants had in their employ three or more employees. Issues on contributory negligence were conditionally submitted. Having answered “Yes” to Special Issue No. 10 the jury, pursuant to the court’s instructions, did not answer the contributory negligence issues.

We see no merit in appellants’ third point. Appellants claim that on August 4, 1964 appellee Waller was the only employee working at their Bryan Street place of business. But the evidence is undisputed that there were other employees working at appellants’ other place of business, 4002 Urban Street. The two establishments constituted one enterprise. The workmen’s compensation law under such circumstances is applicable to all employees. Barron v. Standard Accident Ins. Co., 122 Tex. 179, 53 S.W.2d 769 (1932); Merrick v. Street, 91 S.W.2d 851 (Tex.Civ.App., Fort Worth 1936). There was testimony from Myrtie Prewitt that during the month of August 1964 there were perhaps seven and at least five employees of appellants. Appellee Waller testified that during the year 1964 there were at least four employees working for appellants at their two locations. The third point of error is overruled.

In their fourth point on appeal appellants assert error on the part of the court in admitting the testimony of Guy Lewis, appellants’ insurance agent, that on August 10, 1964, four days after the accident, appellants applied for a policy of workmen’s compensation insurance. Ap-pellee offered the testimony for the purpose of showing from the payroll data and other information contained in the application signed by appellants, that they had more than three employees during 1964.

Lewis’ testimony does not show the number of employees of appellants prior to the accident. It is too indefinite to serve the purpose for which it was offered. We think it was error to admit the testimony.

But we must hold that under the circumstances the error was harmless because the testimony of Myrtie Prewitt herself will support a finding that appellants employed more than three employees during August 1964. Appellants’ fourth point is overruled.

We turn now to appellants’ first point of error. Appellants say that there is no evidence to support the jury’s answers to Special Issues Nos. 5 and 6.

We do not agree with appellants’ contention that there is no evidence to support the jury’s answers to Special Issues Nos. 5 and 6. It is undisputed that appellee Waller testified that she was familiar with the place of businesss on Bryan Street, having worked there about a year before the accident; that as she came around the end of a table by the spotting board she tripped and fell over a small mat that ordinarily was under the spotting board, but on this occasion had been pulled out into the aisle and left there; the cause of her stumbling and falling was that the mat was left out of place — it was sticking out into the aisle, though it should have been under the spotting board; that she had been up and down the aisle every day the past year and wasn’t expecting the mat to be there; that the mat was supposed to be completely out of the walkway.

Another witness, Mrs. Borak, who is ap-pellee Waller’s sister, testified that she came to the Bryan Street location in response to an emergency call when her sister was injured; that she didn’t see the mat and that she too stumbled over it. Mrs. Borak also quoted Myrtie Prewitt as having stated at the time of .the accident that the clean-up men were at the location the night before and they did not put the mat back in place. Mrs. Prewitt did not deny having made the statement.

We think there is ample evidence to support the jury’s answers to Special Issues Nos. 5 and 6. Appellant’s first point is overruled.

In their second point appellants assert that the court, after disregarding the jury’s answers to Special Issues Nos. 5 and 6, should have rendered judgment in appellants’ favor based on the jury’s answer to Special Issue No. 7. We do not agree.

The issue inquired whether the jury found from a preponderance of the evidence that appellants failed to provide a rubber matting of the kind, quality and character that an ordinarily prudent person would have provided under the same or similar circumstances. The jury answered “No.”

It will be observed that the issue is limited to the question of the kind, quality and character of the mat. It does not include or even remotely touch on the issue of the alleged negligence of appellants in placing the mat in the aisle where it did not belong or in failing to remove the mat from the aisle.

On the other hand Special Issue No. 5 is broad enough to encompass and include and does encompass and include the alleged negligent placing of the mat in the aisle. The evidence was sufficient to support a jury finding that the placing of the mat in the aisle and not removing it from the aisle amounted to a failure of appellants to provide appellee with a safe place to work.

Appellants argue that the special finding in regard to the condition of the mat must control the general finding of an unsafe place to work, citing Harbin v. City of Beaumont, 146 S.W.2d 297 (Tex.Civ.App., Beaumont 1940, dis., jdgmt cor.).

We do not disagree with the holding or the judgment in the Harbin case. It is plainly distinguishable from the case now before us. In Harbin the court expressly states that the jury acquitted the defendant of every special act charged by the plaintiff. Consequently the finding that the defendant failed to furnish plaintiff a safe place to work was a mere legal conclusion unsupported by the facts. Further, the court stated that the undisputed evidence showed that the negligence of defendant in failing to furnish a safe place to work was not a proximate cause of plaintiff’s injuries.

In the present case the court did not specifically submit both of the special acts of negligence pleaded by appellee, both of which are supported by evidence. And certainly there is evidence that the placing of the mat was a proximate cause of appellee’s injuries.

It may be argued that Special Issue No. 5 as worded is more general and broad in its scope than it ought to be. But no objection was made to the submission of the issue or to its form. That being so, appellants cannot now be heard to complain that the issue is not sufficiently specific. Frozen Foods Express v. Odom, 229 S.W.2d 92, 94 (Tex.Civ.App., Eastland 1950, writ ref’d n.r.e.).

Appellants’ second point is overruled.

The judgment of the trial court is affirmed.

       Among the issues submitted were the following :
      “SPECIAL ISSUE NO. 6:
      Do you find from a preponderance of the evidence that at the time of, and before the incident in question, the Defendants, Myrtie Prewitt and Duggan Prew-itt, doing business as Prewitt Cleaners, failed to furnish Jessie Pay Waller a reasonably safe place in which to do her work?
      By the term ‘a reasonably safe place to work’ is meant such a place as an ordinary prudent person would have maintained and furnished under the same or similar circumstances.
      Answer ‘They failed’ or ‘No.’
      ANSWER: THEY FAILED
      “If you have answered the preceding Special Issue ‘They failed’ then answer the following issue; otherwise; do not answer it.
      “SPECIAL ISSUE NO. 6:
      Do you find from a preponderance of the evidence that such failure, if any you have found in answer to the preceding Special Issue, was a proximate cause of the injuries, if any, sustained by Jessie Fay Waller at the time and on the occasion in question?
      Answer ‘Yes’ or ‘No.’
      ANSWER: YES
      “If you have answered Special Issue No. 4 ‘Yes,’ then answer the following issue; otherwise, do not answer it.
      “SPECIAL ISSUE NO. 7:

      Do you find from a preponderance of the evidence that at the time and on the occasion in question, the Defendants, Myrtie Prewitt and Duggan Prewitt, doing business as Prewitt Cleaners, failed to provide, on the premises in question, rubber matting of the kind, quality and character that an ordinary prudent person would have provided under the same or similar circumstances?
      Answer ‘They failed’ or ‘No.’
      ANSWER: NO.”
      The answer to Special Issue No. 4 was that the injury to appellee Waller was sustained in the course of her employment.