text:
    Robert B. YATES et al., Appellants, v. INDUSTRIAL STEEL PRODUCTS COMPANY, Appellee.
    No. 7658.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1965.
    Rehearing Denied Nov. 2, 1965.

      L. E. Elliott, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellants.
    M. Sims Davidson, Eldridge, Goggans, Davidson & Silverberg, Dallas, for appel-lee.
   CHADICK, Chief Justice.

“This is a suit by a material supplier against a public contractor and his surety under the McGregor Act, Article 5160, Vernon’s Annotated Civil Statutes. Plaintiff Industrial Steel Products, Inc. furnished structural steel and other construction materials to defendant Robert B. Yates for two buildings Yates was erecting for the Dallas Independent School District. These materials were furnished under separate written subcontracts, each specifying the terms of payment as follows: ‘14 of 1% 10 days net 30 days’. The parties construe this language as requiring payment in a lump sum * * *. Defendant National Surety Corporation executed payment bonds for each project under the McGregor Act and the principal questions here are the timeliness and sufficiency of the notices given by plaintiff to the surety.

“Delivery of the materials in question began in June and ended in October, 1961. After allowing for payments and other credits, the balance owed by Yates upon completion was $52,398.44 on one subcontract and $128,527.72 on the other, making a total of $180,925.76, for which recovery is now sought.

“On November 8th, 1961, Industrial delivered to both Yates and the surety the first notices now in question. Each of these was accompanied by a copy of the subcontract and by a ‘statement of account’ giving as dates of delivery ‘January 3, 1961, through October 31, 1961’, and describing the materials as ‘Necessary Structural Steel, Shop Fabricated Miscellaneous Steel Direct and Steel Longspan’. Thereafter on December 1, 1961, Industrial delivered to Yates and the surety additional notices, each of which were accompanied by a more detailed statement of account, specifying the dates of delivery, the items delivered on such dates and the prices attributed to each delivery. The surety admits that the notices of December 1, 1961, were sufficient to fix liability on it for the materials delivered in August, September and October and acknowledges liability for these materials in the amount of $66,784.00, but contends that such notices do not fix liability for items delivered in June and July, because not given ‘within ninety (90) days after the 10th day of the month next following each month in which the material was delivered in whole or in part’, as provided in Section B(a) of Article 5160. The Surety also contends that the notices of November 8, 1961, were not sufficient to fix liability on it for the materials delivered in June and July, because such notices did not give ‘the approximate date or date of performance or delivery on both and describing the labor or materials or both in such a manner so as to reasonably identify said labor or materials’, as provided in Section B(a) (2) of Article 5160.”

The foregoing quotation is from a written opinion filed in the trial court. This summary by the trial judge is adopted and will be supplemented as the need arises. The plaintiff, Industrial Steel Products Company, Inc., was awarded judgment against defendants Yates and National Surety Corporation, jointly and severally, for One Hundred Eighty Thousand Nine Hundred twenty-five and 76/100 ($180,-925.76) Dollars, with interest at the rate of Six (6%) per cent per annum from and after December 1, 1961, until paid, together with an attorney fee of ten thousand dollars for service in the trial court and two thousand five hundred ($2,500.-00) dollars for the same in the appellate courts, and for costs, etc. Yates and National Surety Corporation have appealed.

The Legislature at its Regular Session in 1959 amended Article 5160 and repealed Articles 5161, 5162, 5163, and 5164. The amended Article became effective April 27 of that year and systemized statutory policy and procedures governing performance and payment bonds required of construction contractors with the state or its political subdivisions. The comprehensive nature of the statute and the Legislature’s intent is indicated to some extent by the headings the Legislative Bill gave to the various sections of the new enactment, such as, “Contractor’s Bonds for Performance and Payment for Labor and Material”, “Rights of Persons Furnishing Labor and Material”, “Notice Required”, “Claimant Defined”, “Venue”, etc. The Article is subdivided into seven main parts, each prefixed with a capitalized letter of the alphabet. Then each subdivision is further divided with divisions indicated by letters or numerals enclosed in parenthesis. The language of the Article the parties regard as relevant to this case is found in Section B, as follows:

“Rights of Persons Furnishing Labor or Material. Notice Required
“B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required herein-above, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit; provided:
“(a) Notices Required for Unpaid Bills, other than notices solely for Re-tainages as hereinafter described.
“Such claimant shall have given within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. Such notices shall be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed. Such statement of account shall include therein the amount of any re-tainage or retainages applicable to the account that have not become due by virtue of terms of the contract between the claimant and the prime contractor or between the claimant and a subcontractor. When the claim is based on a written agreement, the claimant shall have the option to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.
“(1) * * *
“(2) When the claim is for multiple items of labor or material or both to be paid for on a lump sum basis such notice shall state the name of the party for whom the labor was done or performed or to whom the material was delivered, the amount of the contract and whether written or oral, the amount claimed and the approximate date or dates of performance or delivery or both and describing the labor or materials or both in such a manner so as to reasonably identify the said labor or materials.
«^3) * * *
“(b) * * *

The differing solutions the parties propose necessitates consideration and construction of several subsections and subdivisions of Section B above quoted. There is no suggestion in the briefs that judgment is controlled by other parts of the Article, What is hereafter said should be understood in context with the portion of the Article quoted and limited to the facts of this case.

The beginning paragraph of Section B can only be understood as imposing liability upon a payment bond surety for the payment of the obligation of a contractor to an unpaid furnisher of material sixty days after the furnisher files a notice and claim in accordance with the section’s later provisions ; suit to enforce liability is authorized at the expiration of such sixty days if the unpaid-indebtedness is due, and if not then due, enforcement is authorized at maturity. Neither subsection (a) of Section B nor the classifications made by the subsection’s subdivisions (1), (2) and (3) suggests that liability of the surety is in anywise affected by maturity or non-maturity of payment at the time notice is given. There is a requirement that the account between the furnisher and contractor be stated, but liability fixed by the notice and claim is not made to depend upon the account as stated being then due and payable. Inherent in this construction is recognition that contractual terms of payment vary. Public policy declared by Art. 5160 does not penalize or constrict the freedom of contract. The parties are at liberty to contract that material be paid for at any time agreeable to them, and still by complying with the statute’s notice and claim procedure have the protection of the payment bond.

The first paragraph of subsection (a) sets up conditions of general application to payment bond claims, except claims embraced by subsections (b) and (c). The paragraph specifically requires that written notice to a payment bond surety of a claim for material furnished shall be given ninety days following the tenth day of the month next after the month in which the material is delivered. This is the only provision in subsection (a) setting a time limit for notice, or dealing with the time element of notice. In addition the paragraph details the method of giving notice, that is, by certified or registered mail, addressed to the prime contractor, surety, etc. The remaining provisions of the paragraph are concerned with claim form, substance and procedure. The last sentence of this paragraph gives the claimant an option in presenting a claim when it is based upon a written contract Instead of complying with the several requirements that precede this sentence, the claimant may give notice by enclosing with a sworn statement of account a true copy of the contract underlying the claim and advice to the surety of the completion or partial completion of the contract. The sentence makes no change in the time for notice previously specified. Following this first paragraph in subsection (a) are subdivisions (1), (2) and (3) wherein particular requirements are made applicable specifically to claims having the characteristics delineated in such subdivisions.

The parties having stipulated that the claim in suit is an outgrowth of a lump-sum contract, only subdivision (2) need be further consulted. The language of the subdivision is silent on the time element of notice. The form in which the statute is arranged and written indicates that the subdivision is of special application and controls over general provisions of the first paragraph of subsection (a) insofar as lump-sum contracts are concerned. 82 C. J.S. Statutes § 347b, and generally §§ 345, 346 and 348. Subdivision (2) specifies that the furnisher set out in the notice to the surety the name of the party to whom material was delivered, the amount of the contract, whether it is written or oral, the amount claimed, the approximate date of delivery, and describe the material in such way as to reasonably identify it. These precepts supersede the general provisions on the same subject. Clearly the time limit on notice is not modified or superseded by a different provision thus leaving the time element prescribed in the first paragraph of subsection (a) unchanged. This conclusion is in harmony with the interpretation implicit in the court’s recapitulation of the facts showing liability in United Benefit F. Ins. Co. v. Metropolitan Plumbing Co., 363 S.W.2d 843, at page 850 (Tex.Civ.App. 1962, writ ref., n. r. e.).

On November 8, 1961, Industrial Steel Products Company, Inc., gave notice of its claims against Yates to the surety, National Surety Corporation, Inc. The sworn statement of account as to each project was in this form, to-wit:

( Stadium)
“Date Delivered Item Price
January 3, 1961 Necessary Structural Steel, Shop Fabricated Miscella-Thru neous Steel, Miscellaneous Steel Direct, and Steel
October 31, 1961 Longspans
$175,658.00
TOTAL AMOUNT PAID . 123,259.56
BALANCE DUE. $ 52,398.44
(School)
“Date Delivered Item Price
February 28, 1961 Necessary Structural Steel, Shop Fabricated Miscella-Thru neous Steel, Miscellaneous Steel Direct, and Steel Long-
October 31, 1961 spans $135,416.00
AMOUNT PAID... 6,888.68
BALANCE DUE ....$128,527.32”

The steel company supplemented the two claims on December 8, 1961, with separate sworn statements of account referable to each project. The supplemental statement on the stadium listed material of the value of $48,024.00 as delivered in June, material of the value of $2,000.00 delivered in July, and material of the value of $2,434.00 delivered in October, less a .credit of $59.56 applied to the account on October 6. The high school project supplemental statement of account listed material of the value of $29,000.00 delivered in June, material of the value of $35,446.00 delivered in July, material of the value of $3,000.00 delivered in August, material’ of the value of $57,963.00 delivered in September, and material of the value of $3,387.00 delivered in October. Credited to this account in the month of October, 1961, is an allowance of $257.15 and an additional allowance in November of $11.53.

As Article 5160 has been construed above, and if the November 8, 1961, notice is sufficient, National Surety Corporation is liable to pay for material delivered July through October, 1961; that is to say, the surety is liable to pay for the material delivered, of which it had notice, within ninety days after the tenth of the month next following the month in which delivery was made. The surety concedes that it is liable for the value of the material delivered in August and thereafter as the supplemental notice of December 1, 1961, was sufficient to fix liability for that period. The question narrows to this, is the notice and claim of November 8, 1961, sufficient to fix liability on the surety for material delivered during July, 1961?

The only payment bond case touching the issue here that has reached the appellate court since Art. 5160 was amended in 1959 is United Benefit Fire Ins. Co. v. Metropolitan Plumbing Co., supra. Therein the El Paso court decided that the Article, as amended and re-enacted, was remedial in nature and subject to the most liberal construction of which it is susceptible. The Article as it existed prior to amendment in 1959 was considered in Employers Liability Assurance Corp. v. Young County Lumber Co., 122 Tex. 647, 64 S.W.2d 339. The Supreme Court viewed the action and remedy as being solely derived from the statute and held that the statutory provisions were mandatory and exclusive in nature and must be complied with in all respects in order to enjoy its benefits. Apropos civil statutes, Art. 10, Subsection 6 says: “In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” The opinion in the United Benefit case cited above shows the approximate dates of delivery of material in that case to be from Dec. 1, 1960 to Feb. 1, 1961, and notice and claim therein to have been given the surety April 28, 1961. From these facts it may be calculated that notice of December material deliveries were not given within 90 days following the tenth day of the month next following the month of delivery, but January material deliveries were made within such time period. Because the evidence in the case supported findings that all material was delivered during January the trial court judgment was affirmed. The opinion says that,

“The statute itself requires the claimant to show only the ‘approximate date or dates’ of performance or delivery when the claim is for multiple items of labor or material to be paid for on a lum-sum basis. Therefore, particularly in view of the remedial nature of the statute and the purposes to be accomplished thereby, we are of the opinion that plaintiff properly perfected its claim against the contractor’s payment bond and the surety thereon. * * * ”

The notice in this appeal asserts delivery of material was made at times so remote from the notice date (that is, more than 90 days after the tenth day of the month next after delivery) that the statute imposes no liability on the surety, as well as at times when liability would accrue thereunder, much as in the United Benefit case. The notice is ambiguous, but the surety was in fact apprised that some part of the material deliverable under the lump-sum contract had been delivered at a time when the statute would impose liability as a result of notice. Under United Benefit supra the notice substantially complied with the statute’s provisions and is sufficient to bring material delivered to Yates in the month of July within the protection of National Surety Corporation’s payment bond.

The total value of material delivered on the stadium subcontract in July and after-wards was $4,434.00, and the total value delivered in the same period on the high school subcontract was $99,796.00, making a grand total of $104,230.00. The judgment of the trial court will be modified and revised to adjudge the steel company a recovery of $104,230.00, with interest from Dec. 1, 1961, against the surety company.

The surety company makes a very cogent point that the defeasance clause of the payment bond does not obligate the surety to pay attorney fees and that Art. 2226 authorizing recovery of attorney fees for materials furnished can have no application because the steel company furnished no materials to the surety. Recently a payment bond case, Ferrier Brothers v. Brown (Tex.Civ.App.) 362 S.W.2d 181, writ ref., n. r. e., expressly approved allowance of an attorney -fee. Article 2226 was held to authorize recovery of the fee. The rationale of the case seems to be that Article 2226 governs in actions to recover for materials furnished because the payment bond surety assumed liability to pay for material furnished upon the concurrence of the contractor’s failure to pay, the supplier’s notice, etc. An earlier case, F. & C. Engineering Co. Inc., v. Moore (Ct.Civ.App.) 300 S.W.2d 323, writ refused, n. r. e., disallowed recovery for a fee from the surety. The Ferrier case will be followed. Appellant’s point of error in this regard is overruled.

The motion for rehearing filed by each party is overruled. The trial court judgment will be affirmed except in the particular now mentioned. Industrial Steel Products Company’s recovery from National Surety Corporation is modified and judgment is rendered that the steel company recover of the surety the sum of $104,230.00, with interest from December 1, 1961. The opinion filed in this case September 7, 1965, is withdrawn and the above substituted for it.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    GREEN-GRO SEED COMPANY, Appellant, v. Jack PERRY, Appellee.
    No. 7566.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1966.
    Erhard, Cox & Ruebel, Dallas, for appellant,
    Allison, Mann & Allison, Levelland, for appellee.
   CHAPMAN, Justice.

This is a venue case.

Appellee, Jack Perry, initiated this suit in Cochran County by alleging against Green-Gro Seed Company a breach of a contract for purchase by him from the seed company of 1,300,000 pounds of hybrid sudan seed to be delivered from Pecos at the 1964 harvest. The order for such purchase was taken by appellant’s vice-president at appellee’s place of business in Morton, Cochran County, Texas, where appellee resided and where suit was filed.

After returning to his office in Pecos the vice-president of the company, Bob Bell, mailed to appellee a written and signed confirmation of the said purchase agreement without the phrase, “Delivered to Morton, Texas,” appearing therein. After reading the confirmation, or the contract, appellee noticed it did not contain the Morton delivery phrase in it. He testified all the purchases he made from the company for the grain that came out of Pecos provided for delivery in Morton; that before signing the contract he called the vice-president and told him the phrase, “Delivered to Morton, Texas,” was not in the instrument, whereupon Mr. Bell told him to writ it in; that his wife-wrote it in, appellee signed it, retained one copy and mailed one copy to appellant’s office. This all happened in May, 1964. After receipt of the written confirmation appellant never repudiated the contract until time for delivery and then refused to perform. During the interim the seed had advanced from the contract price of $4.50 per hundred pounds to more than twice that price.

A plea of privilege was filed by appellant company seeking to have the case moved to the domiciliary residence of the corporation, which was Denton County. The plea was controverted by alleging Section 5 of Article 1995, Vernon’s Ann. Tex.Civ.St. as an exception to the right of the corporation to be sued in the county of its corporate domicile. That exception provides:

“Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

After hearing the testimony the plea of privilege was overruled. Appeal is perfected from such judgment.

The testimony by appellee shows the president of the corporation, Mr. Harvey, whom he had known for seventeen years, came to his office in Morton with Mr. Bob Bell, introduced the two and told appellee Mr. Bell was going to be with him in the seed business; they were forming the Green-Gro corporation and “ * * Bob would be around to get the orders. >|í íjí >¡? ff

The record shows that subsequent to that time the contract in controversy was entered into and the two men agreed orally the grain was to be delivered to Morton, Texas. Appellee testified he never heard anything from the company after the amended and signed copy of the contract was sent back and that it was never repudiated by appellant.

Appeal is based upon the one contention to the effect that plaintiff’s suit “ * * * is based upon an oral contract for delivery of the subject seed which was not incorporated in the confirmation of the subject contract.” The point is overruled.

There is probative evidence here that the “Delivered to Morton, Texas,” clause was placed into the written instrument by handwriting of appellee’s wife with a ball point pen and that such clause was authorized by appellant’s vice-president. The court sustained an objection to the testimony of appellee concerning the conversation between him and Mr. Bell in which the latter authorized the clause to be added to the contract. However, the evidence was placed into the record during cross-examination of appellee by counsel for appellant in the following exchange:

“Q. But now the subject contract that we are talking about, Plaintiff’s Exhibit No. 1, which I believe is the copy you have in your hand there, your testimony is that your wife wrote that phrase in that contract after it was received from Green-Gro Seed Company?
A. Yes, and after I talked to Bob Bell.
Q. All right.
A. And he told me to.
Q. How long after May the 5th was that phrase written on there? May the 5th, 1964.
A. Oh, I don’t know. Bob came up and taken that order and it’s possibly a week. I wouldn’t say exactly. Bob came up before this May the 5th, I suppose. I don’t remember what day it was, but anyway, he taken the order and wrote it in his book and then he mailed me these confirmations.
Q. How long after you got the confirmations was the phrase written by your wife on there?
A. The same day we got them, we called him and signed them and sent them back.”

We thus have probative evidence that the company through its vice-president Bob Bell authorized the disputed clause to be placed into the written instrument, making the contract in writing performable in Morton, Texas. Courts may take judicial knowledge that Morton is the county seat of Cochran County. Traylor v. Blum, Tex.Sup.Ct., 7 S.W. 829; Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 612.

Appellant’s argument under the point stated is to the effect that: “There is no evidence that the0 contract was re-submitted for execution by the defendant or that the provision for delivery was initiated after its receipt by the plaintiff.”

The Texarkana Court of Civil Appeals speaking through the late Justice Harvey has held in Vinson v. Horton, 207 S.W.2d 432, 434 (N.W.H.) as follows:

“It is now definitely settled in Texas that it is not necessary in order to constitute a ‘contract in writing’ that the agreement be signed by both parties; one may sign and the other may accept by his acts, conduct or acquiescence in the terms of the agreement. 43 Tex.Jur., p. 724; 67 C.J., p. 32, Sec. 37; Martin v. Roberts, 57 Tex. 564; Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Gottlieb v. Dismukes, Tex.Civ.App., 230 S.W.792; Grainger v. Gottlieb, Tex.Civ.App., 234 S.W. 604; Port Iron & Supply Co. v. Casualty Underwriters, Tex.Civ.App., 118 S.W.2d 627.”

The court then applied the principle enunciated to suits arising under Exception 5 to the venue statute and fixed venue in the county where the contract was performable.

Among the cases cited by Justice Harvey was Gottlieb v. Dismukes, Tex.Civ.App., 230 S.W. 792 (N.W.H.). That court held:

“The language quoted in our statement of the findings of fact, in the light of the whole agreement, makes it clear, we think, that it was contemplated by both parties that there should be a written confirmation of the terms of the sale, which would be binding if the parties did not object to its provisions. There is no dispute that the written confirmation was prepared by the buyer according to the agreement of the parties, and that the seller received this confirmation and retained the same without any objection or protest. We think there was a meeting of the minds upon the writing, which the evidence does not show was required or contemplated to be formally signed by both parties.”

In light of the entire record made here it appears clear to us that it was contemplated by both parties, with Bob Bell, vice-president, acting for appellant, that there should be a written confirmation of the terms of the sale, with delivery to be made in Morton, Texas. We believe those conditions were met by the actions, conduct and acquiescence of appellant and that it requires no implication to fix the place of performance.

Accordingly, the judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Daniel O. PITTSER and W. H. Pilcher, Appellees.
    No. 7695.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 28, 1965.
    Rehearing Denied Jan. 18, 1966.
    John Smith, Roberts & Smith, Longview, for appellant.
    Tom Steele, Linden, for appellees.
   CHADICK, Chief Justice.

The plaintiffs, Daniel O. Pittser and W. H. Pilcher, sued the defendant, Insurance Company of North America for windstorm damage to a building insured by such company.

The building was located on the south side of state highway No. 49 near the “Y” at the eastern edge of Hughes Springs, Cass County. Construction was that generally described as concrete block on concrete slab foundation, with a flat built-up felt and tar roof. Its dimensions were 50 feet width, 30 feet depth, front or north wall 18 feet high, the back (south) wall 16 feet. The roof projected out or overhung the front wall by about five feet, and the downward slope or fall was 16 to 24 inches front to back. The building had been vacant a few weeks on August 18, 1964, but in its 10 to 12 years prior existence it housed a drive-in malt stand, an automobile body repair shop, and a domino hall.

The evidence, in its aspect most favorable to the judgment shows that from midnight until around noontime on August 18, 1964, the weather in the general area of the building was “stormy”, with rain and wind. A witness living within a one-half mile of the building characterized the early morning weather as “stormy”, and said the wind began to “get up” as he left for work about seven o’clock in the morning. A carpenter testified the wind had such force as to close down roofing work on a structure approximately a mile distant from this building because it buffeted roofing material so much it could not be handled.

The agent who wrote the insurance policy lived approximately one mile from the building. He described the wind as “blowing excessively”, that it was stormy over the general area and on inspection of the property the afternoon of August 18th he saw trees uprooted across the highway north of the building. He testified to having experience with windstorm damage and expressed the opinion that damage to the building was caused by windstorm.

One of the owners, plaintiff Pittser, testified that after receiving a communication, on August 17 or 18th he drove to Hughes Springs and arrived in the late afternoon, but before dark. About a mile east of the town, as he approached the building site, he noticed along the highway broken tree limbs, branches, and “just a conglomeration of debris and things like that — that they had considerable wind around there”. In addition, he testified as follows:

“Q. State whether or not you noticed anything, say beginning three hundred (300) yards from your building until you got to your building?
A. As I make the curve going around there at the ‘Y’,
íjí
Q. Yes.
A. * * * along the north side of the road, there are a whole bunch of bricks and blocks and things like that, and on down in front of the place of business, it was a real wreck. The roof is caved in and these bricks fell down out in front of it, and directly across the road, there were some concrete blocks for one reason or another. How they got over there, I don’t know, but they were there — limbs and things like that; little old trees around there were shook threadbare; across the field there were a couple of big old trees uprooted. I don’t know how long they had been uprooted but probably sometime— I don’t know, but I did notice one little tree or two or three— one had blown across that little fence there, in particular.
Q. Did you go out and examine that ?
A. I walked out there and it looked like it had just been blown down.
Q. Did it have green leaves on it?
A. Yes. They were.all around there like that.
Q. In what direction was the little tree blown down ?
A. Toward the malt shop — toward the highway.
Q. Your building faces the north?
A. That’s right.
Q. I take it the tree was blown to the south ?
A. Yes.
Q. All right, sir, could you tell whether or not there was more debris and limbs and trash on the north as contrasted to the south side of the road ?
A. Well, like I say these bricks and things were over there on the north side of the road and the malt shop is on the south side of the road. It seems like the malt shop was more or less a stop for a bunch of trash and debris that had blown up there.
Q. That leads to my next question. Did you observe any debris and trash in front of where your building used to be?
A. A whole lot.
Q. What kind of debris and trash was that ?
A. Well, it was wood, lumber, paper and trash of all sorts.
Q. Did you notice any limbs of any kind?
A. Yes, little old trees around there that had been stripped down. It was that and leaves.
Q. Was that leaning up against your building ?
A. Well, the building had fallen to the north. * * *
Q. All right.
A. * * * and the trash and everything naturally had blown out of the road over in front of it.”

An architect who examined the building shortly after August 18 expressed the .opinion that the damage to it was caused by the wind. On the basis of his study he concluded that a strong wind struck the north front of the building, was deflected upward catching the overhang, lifting the roof and unseating it. Such action, in his opinion, caused the walls to break and the roof to drop back in an unseated position forcing the north wall outward as the roof sank to the ground over a period of hours. It was shown by other evidence that the building was sound and in good repair two to six weeks before damage was noticed August 18th.

The reasonable inferences and deductions to be drawn from the facts and circumstances recorded constitutes evidence of probative force that unusually violent wind, having the aspect of a storm, swept through the locality of the building on August 18th. The appellant does not actually dispute this conclusion, its brief contains this statement:

“It is undisputed that Appellees’ building collapsed, that the night before the collapse there was a wind blowing somewhere in the vicinity of the building and that if a windstorm caused the collapse of Appellees’ building, Appellees are entitled to recover under the terms of their policy with Appellant. However, the missing link in the proof introduced by Appellees in the trial court was the causal connection between the wind and the subsequent collapse of Appellees’ building.”

The efficient or producing cause of windstorm damage may be proven by circumstantial evidence. See McDonald v. New York Central Mutual Fire Insurance Company (Tex.Sp.Ct. 1964) 380 S.W.2d 545; Hardware Dealers Mutual Insurance Company v. Berglund (Tex.Sp.Ct. 1965), 393 S.W.2d 309; Paulson v. Fire Insurance Exchange (Tex.Sp.Ct. 1965) 393 S.W.2d 316; Hartford Fire Insurance Company v. Christianson, 395 S.W.2d 53 (Tex.Civ.App. 1965, time limit for writ action unexpired). Given the facts that a sound building with a roof having a pitch that would shed ordinary rainfall was subjected to winds of sufficient force and violence to uproot trees, etc., and within a few hours thereafter the roof is found displaced and slowly sinking to the ground, forcing the building’s front and side walls apart, together with an expert’s opinion that wind probably caused the damage, is sufficient evidence to support the jury’s conclusion that the windstorm was a producing cause of the damage to the building.

The record contains evidence that if given credence by the jury would have led to a different conclusion. This evidence is not of such great weight and character as to preponderate against the jury’s finding, however. The insurance company’s several points with respect to the absence, insufficiency, and great weight and preponderance of the evidence must be overruled.

The jury charge defined windstorm in this language:

“You are instructed that by the term ‘WINDSTORM’ as used in the preceding special issues, means something more than an ordinary gust of wind, no matter how prolonged, and though the whirling features which usually accompany tornadoes and cyclones need not be present, it must assume the aspect of a storm. You are further instructed that windstorms may be largely local, or they may cover a large area.”

Objection was lodged to the last sentence of the definition. It is argued that the last sentence violates Rules 272 and 277, Vernon’s Ann. Texas Rules, as a comment on the weight of the evidence and as an unnecessary and harmful explanatory instruction. The issues say that the definition is harmful because it “allows the jury to go far afield in speculating exactly what a windstorm is”. The definition, except for the last sentence, was approved in Firemen’s Insurance Company of Newark, N. J., v. Weatherman, 193 S.W.2d 247 (Tex.Civ.App. no writ). The opinion there says that it is a matter of “common knowledge that windstorms may be largely local, or cover a large area.” Just how a matter of common knowledge would be harmful to the appellant is not developed by the brief. No harm is apparent as the matter is presented.

Counsel for the building owners propounded the following hypothetical question to the architect produced as a witness:

“Q. Also assume, if you will, please, that on the morning of August 18, 1964, that there was a severe thunder storm, windstorm, and there was also limbs and trees blown down in the immediate vicinity — assuming all those facts, do you have an opinion as to what caused this to collapse, Mr. Polkinghorn ?”

The question assumes that proof has been made of a severe windstorm in the vicinity of the building. Objection was made that there was no evidence in the record of severe thunder storm or windstorm in the locality of the building. Reference is made to the evidence that has been set out. While a statement of the several facts leading to a conclusion that there was a windstorm at the time might have been preferable, yet the question as stated is not improper under this record. 2 Texas Law of Evidence (McCormick and Ray) Sec. 1403. This authority at page 240 says: “Counsel propounding the question is entitled to the witness’s opinion upon any combination of facts inferable from the proof. He may, and usually does, assume facts in accordance with his theory of the case. If the opponent desires to secure the expert’s opinion upon a different set of facts, he may do so on cross-examination.” Much the same question was asked and answered at another point without objection.

All of appellant’s points of error have been carefully considered and the conclusion reached that reversible error is not shown. The judgment of the trial court will be affirmed.


author: DIXON, Chief Justice.

text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Robert Lee FRANKS, Appellee.
    No. 16647.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 28, 1966.
    Rehearing Denied Feb. 25, 1966.
    See also, Tex.Civ.App., 379 S.W.2d 415.

      W. A. Thie and John B. Webster, Dallas, and Elliott & Nall, Sherman, for appellant.
    Helm, Jones & Pletcher, Houston, and Slagle & Kennedy, Sherman, for appellee.
   DIXON, Chief Justice.

Appellee Robert Lee Franks sued appellant Missouri-Kansas-Texas Railroad Company, hereinafter called the Katy, under the Federal Employers’ Liability Act, Title 45, Sections 51 and 53, U.S.C.A. for damages for personal injuries sustained June 26, 1961 when a caboose in which appellee was riding was derailed.

A jury found negligence and proximate cause issues against appellant, exonerated appellee of negligence and assessed damages in the amount of $116,250. Judgment on the verdict was rendered for appellee.

Appellant’s first, second and fifth points on appeal allege that the trial court erred (1) in overruling appellant’s motion to strike the testimony of Dr. Gerald A. King concerning his findings that appellee was dizzy, nervous, irritable and had severe headaches when the doctor admitted that such findings were actually furnished by appellee’s wife; (2) in permitting Dr. King, to whom appellee had been sent for examination, to testify that appellee had not been able to work since the accident, which testimony was based only on subjective symptoms and history given to him by appellee; and (5) in permitting Dr. King to testify in response to a hypothetical question based on assumed facts which incorporated the unproven fact that appellee was “happily married”.

None of the above points presents reversible error. Appellee’s first visit to Dr. King was on October 26, 1962. He himself gave the doctor a history of dizziness, difficulty in breathing, fatigue, headaches, nervousness, pain in his left wrist and a healed fracture of the nose.

Thereafter the doctor saw appellee again on January 10, 1963 and appellee’s wife said he was still dizzy, nervous and irritable. Objection was made and sustained as to what appellee’s wife said. On this occasion Dr. King not only examined appel-lee but treated him by giving him trymeni-cin and equigesic. He diagnosed appellee’s head injury as a post-concussion syndrome. The doctor saw appellee again on February 22, 1963. Dr. King’s diagnosis was in substance confirmed by Drs. Moorman and Woolf, though the last two named doctors did not agree with Dr. King as to the extent of appellee’s disability.

Since Dr. King had treated appel-lee it was permissible for him to recite the history given to him by the patient. Texas Employers Ins. Ass'n v. Morgan, et al, Tex. Civ.App., 187 S.W.2d 603.

The hypothetical question propounded to Dr. King was quite lengthy. Appellant’s objection was not directed to the assumed fact that appellee and his wife were happily married. It was interjected at the point in the hypothetical question where it was assumed that appellee’s conversation had changed, that it had become necessary to pull information out of him and that he had become depressed. The objection did not mention the assumed fact that appellee and his wife were happily married.

The evidence indicates that appellee has been married a number of years. He is still married. His wife accompanied him on one trip to see Dr. King. She could not be present at the trial because she was in the hospital as a result of falling and breaking her hip. We cannot say that the assumption in the hypothetical question that appellee was happily married was an error of such moment, if it was error at all, as would justify a reversal of this judgment. Appellant’s first, third and fifth points are overruled.

In its fourth point appellant complains because the trial court refused to submit a requested issue which would have inquired whether at the time of his injury the employees on the train in question were not under the direction of appellant.

We see no merit in this point. Appellant was operating its trains with its own train crews over the tracks of the Texas & Pacific Railway Company, hereinafter called the T. & P., from Whitesboro, Texas to Fort Worth, Texas. There was no pleading that appellee was not an employee of appellant railroad. The contract between the two railroads was not introduced into evidence. But the admitted facts leave no doubt as to the status of appellee as an employee. Appellant Katy in effect judicially admitted in the face of requests for admissions that on June 21, 1961 appellee was its employee and that appellee and appellant were engaged in interstate commerce, or in work directly, closely and substantially affecting such commerce.

It is undisputed that the Katy paid a “wheelage” fee to the T. & P. for the use of the latter’s tracks. The Katy’s superintendent of rules and safety testified that the two railroads “operate jointly over” the tracks in question. The Katy sends its trains over the T. & P. tracks. The train on which appellee was serving as brakeman at the time of injury was a “through” train. Appellant introduced its own rules governing the operation of the train. The rules of the T. & P. were not offered in evidence. At the joint investigation following the derailment Katy officials sat in for the purpose, among others, of seeing that the investigation was held in accordance with the Katy’s agreement with its employees.

Appellant says that “this cause is squarely ruled by Linstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453.” We do not agree. We think that our holding here must be governed by the holding in Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670.

In the Linstead case the Supreme Court refused to apply the holding in the Hull case and stated its reasons for so refusing. In Linstead the Big Four Railroad, though it was using its own locomotive, caboose and crew, was really doing the work of the C. & O. on the C. & O.’s tracks. For that reason the brakeman who was killed must be considered an employee of the C. & O., and this was so though the Big Four was paying the salary of the brakeman and had the right to discharge him. The distinction between the Linstead case and Hull case, as pointed out by the Supreme Court, was that the Western Maryland R. Company, though operating on the tracks of the Philadelphia & Reading Railroad Company, was actually doing its own work, operating its own train, and presumably receiving the prevailing tariff for its work. Under these circumstances Hull was the servant of the Western Maryland Railroad Company, not the servant of the Philadelphia & Reading Railroad Company. The material facts in the case now before us bring our case unquestionably within the holding of the Hull case. Appellant’s fourth point is overruled.

Appellant’s next nine points, numbered 6 to 14 inclusive, attack the ruling of the court in refusing to submit nine requested special issues. The nine requested issues are all concerned with the question whether appellee violated the operating rules of the T. & P., over whose tracks appellant was operating its train at the time of the accident.

As we have stated, the evidence in this case does not include the T. & P. rules. It does include appellant’s rules, which were introduced by appellant. It is undisputed that the T. & P. rules and appellant’s rules are the same. In fact, the two railroads use the same rule book. The alleged rule violations were submitted in six special issues. To have submitted appellant’s requested issues would in effect have twice submitted the question of each of the alleged rule violations. Two submissions of the same issues are not required. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. Appellant’s Points Nos. 6 to 14 inclusive are overruled.

The substance of appellant’s fifteenth and twenty-fourth points is that the court erred in refusing to give the jury a restrictive instruction that it could not allow any damages which might be suffered by reason of the disfiguring effect of ap-pellee’s crooked nose, which was crooked because appellee had instructed the surgeon so to set it; or by reason of appellee’s having suffered 30 per cent disability as a result of frozen feet while in Europe in the Army in 1944.

These points are without merit. Appel-lee had suffered a fractured nose some years earlier and his nose when set was not straight, but was crooked. His nose was fractured again when the caboose was derailed. Dr. Moorman testified that appel-lee requested him to set the nose in the same position, that is, crooked, that it was prior to the train accident, so it wouldn’t change his appearance. Appellee admitted in the presence of the jury that he had been found by the Federal Government to be 30 per cent disabled because of the condition of his feet as a result of their having been frozen in the Army in 1944.

The court instructed the jury to allow compensation for such past and future pain, etc. suffered as a direct and proximate result of the occurrence in question, that is, the train wreck. The court also instructed the jury not to compensate appellee for past or future physical pain, mental anguish, etc. on account of any bodily condition which appellee may have had before June 26, 1961.

The jury heard Dr. Moorman’s testimony about appellee’s nose. Appellee did not contradict it. He admitted that he had suffered a prior broken nose and that it had not been set straight. Presumably the jury obeyed the court’s instruction not to consider pain, anguish and earning ability on account of any bodily condition of appellee prior to the train wreck. The requested instruction was unnecessary since the instructions given were adequate to protect appellant in the matter of appellee’s crooked nose and the prior condition of his feet. The fifteenth and twenty-fourth points are overruled.

Appellant’s sixteenth and seventeenth points charge that the damages awarded by the jury were excessive.

Appellee testified that he suffered injuries to his knee, a broken wrist, a broken nose and injuries to his head and lacerations to his arms, hands and eyes. There was other evidence of these injuries. Ap-pellee was unconscious when taken to the hospital and suffered amnesia for three days. He was hospitalized for twenty-eight days. He was in a cast for four or five months. His face is scarred. Appellee further testified that he is subject to dizzy spells and has “blacked out” three times, twice while driving an automobile. He has constant headaches for which he takes drugs. He cannot straighten the wrist which was broken. He is extremely nervous and cannot concentrate and is getting worse, not better. He cannot perform the duties of a brakeman.

He wanted to see if he could perform the duties of a trainmaster, a job which was offered to him on a temporary basis. He rejected the offer because he was told that they could hire him one week and abolish the job the next week. For a while he bought and sold a few cattle but had given that up about a year ago. He unsuccessfully sought employment with the sheriffs of Dallas, Tarrant and Grayson Counties. At the time of the derailment he was 41 years of age, had worked for the railroad for fifteen years and was earning about $7,000 per year. Since the accident he has not been able to hold the job of a brakeman.

Dr. King, who treated appellee, testified that appellee is totally and permanently disabled from working; that his disability is both physical and mental; that he suffered a brain injury which the doctor diagnosed as a post-concussion syndrome; and that he suffered a broken wrist with a nonunion of the fracture.

Appellee’s friends and co-workers testified that they observed that appellee is extremely nervous and hardly seems to know what he is doing at times. He is not the same man he was before the accident.

Dr. Moorman, called as a witness by appellant, treated appellee on several occasions. An x-ray showed a non-united fracture of the styloid process of the wrist which would have a minimal functional effect. There is some limitation in the motion of the wrist. Dr. Moorman also diagnosed appellee’s head injury as a post-concussion syndrome. Dr. Moorman had last seen ap-pellee about three years before the trial and had recommended a gradual return to work for appellee. However, he saw appellee at the time of the trial and stated that appel-lee’s condition had worsened since the last time he had seen appellee.

Dr. Woolf, a neurosurgeon, called by appellant, had examined appellee. He too found a post-concussion syndrome, but said it was not serious. He found no brain damage and nothing to indicate that appel-lee could not return to his full employment and hoped that he would soon do so.

Appellee went to a Dr. Gardiner, a neurologist in Fort Worth. Dr. Gardiner did not testify but his report of an electroencephalogram was seen by Dr. King. Dr. King said the report indicated that appellee was within limits of normal, however he had seen a normal electroencephalogram with a tumor.

Much larger damage verdicts have been upheld against the attack of excessiveness. In Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830 (ref. n. r. e.) an award of $162,500 to a widow and child was upheld for wrongful death of a man more than 63 years of age who was earning $9,000 per year. Other awards which were upheld were $150,000 in Louisiana & A. Ry. Co. v. Mullins, Tex.Civ. App., 326 S.W.2d 263 (ref. n. r. e.); $125,-000 in Allbritton v. Sunray Oil Corp., D.C., 88 F.Supp. 54; $240,760 in City of Fort Worth v. Barlow, Tex.Civ.App., 313 S.W.2d 906; $157,400 in Texas & New Orleans Railroad Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907 (ref. n. r. e.); $115,000 in White v. McElroy, Tex.Civ.App., 350 S.W. 2d 249, where appellee was 54 years of age at time of the accident and had been earning approximately $6,000 per year. Appellant’s sixteenth and seventeenth points are overruled.

In its eighteenth point appellant asserts error in the refusal by the court to allow in evidence certified records of the Veterans Administration concerning appel-lee.

The records in question show that in 1948 appellee was admitted to the Veterans Hospital at McKinney, Texas. He was having difficulty in breathing because of an obstruction in his nose. He gave a history of having suffered frozen feet and as a result was drawing 30 per cent disability compensation from the Government.

We do not believe that under the circumstances it was reversible error for the court to exclude the records. There is no showing that the Veterans Administration had given appellee a physical examination during the thirteen years between the time of his discharge from the hospital in 1948 and the date of his accident in 1961. During that time he had held a job as a brakeman for the railroad. Appellee had admitted on cross-examination that he had suffered frozen feet in the Army in Europe in 1944, and that as a result the Federal Government had given him a 30 per cent disability rating since World War II. He admitted that he had previously had trouble in breathing because of an obstruction in his nose. He further admitted that when he signed his application for employment with the railroad he had stated that he had no physical defects and that he was wrong in making the statement. If the Veterans Administration records had been admitted in evidence they would not have disclosed material facts about appellee’s physical condition that he did not admit when questioned on cross-examination by appellant’s attorney. Under somewhat similar circumstances our Supreme Court has held that it was not error to exclude the Veterans Administration records. Kainer v. Walker, Tex., 377 S.W.2d 613, 617. Appellant’s eighteenth point is overruled.

Appellant’s nineteenth and twentieth points claim.error because of the submission of issues inquiring whether the train in question just before the accident was being operated at a rate of speed in excess of that at which a person of ordinary prudence would have operated it, and if so, whether such excessive speed was a proximate, cause of appellee’s injuries. The jury answered both issues in the affirmative.

Appellant says that there was no evidence to support submission of the issue. Appellee himself testified that prior to the time of the accident the train was going too fast — at a dangerous rate of speed after it passed Mile Post 221 and had reached the place of the accident where the speed limit was 35 miles per hour. The engineer and front-end brakeman testified in a deposition that the train was traveling at a speed of about 45 miles per hour round a curve in a 35-mile an hour speed zone at the time of the derailment. At the trial they tried to repudiate their deposition testimony by saying that in their estimation the train was not traveling over 35 miles per hour. Appellant’s nineteenth and twentieth points are overruled.

In its twenty-first point appellant objects to the submission of an issue concerning the duty of appellant to furnish a safe place to work. In its twenty-second and twenty-third points appellant complains of the submission in connection with the above issue of this instruction:

“In connection with Special Issues Nos. 3 and 4 you are instructed that the defendant railroad company was under a duty on the occasion in question to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work and this duty was a continuing and non-delegable duty even though plaintiff’s duties at the time or place in question may have been fleeting and infrequent.”

It was not error for the court to submit the issue and give the instruction. Appel-lee’s cause of action is based on substantive rights given to him under the Federal Employers’ Liability Act. It is well settled that appellant had a continuing, non-dele-gable duty to furnish appellee a safe place to work. Matters of local legal procedure will not be allowed to restrict the establishment and assertion of such substantive rights. Dice v. Akron, Canton & Youngstown RR. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398; Williams v. Atlantic Coast Line R. Co., 190 F.2d 744; Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Brown v. Western Ry. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100; Arnold v. Panhandle & S. F. Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L. Ed.2d 889; Texas & New Orleans RR. Co. v. Arnold, Sup., 388 S.W.2d 181; Missouri-Kansas-Texas RR. Co. v. Shelton, Tex.Civ. App., 383 S.W.2d 842, Cert. den., 382 U.S. 845, 86 S.Ct. 54, 15 L.Ed.2d 85 (Oct. 11, 1965). Appellant’s twenty-first, twenty-second and twenty-third points are overruled.

Finding no reversible error presented by any of appellant’s points on appeal, we affirm the trial court’s judgment.

Affirmed.

      . The Katy’s superintendent testified that the employees of the Katy are “subject to discharge” and “subject to discipline” by the T. & P. and the T. & P. “has a right to bar” an employee of the Katy until he complies with the T. & P.’s instructions.
      We consider that the above testimony is both without probative force and is immaterial to the question under discussion for these reasons:
      (1) The testimony is the expression of legal conclusion by a lay witness. The contract between the two railroads was not introduced in evidence. The legal conclusions of the witness that the T. & P. had the right to discharge, discipline and bar the Katy’s employees are not grounded on any fact. In truth the undisputed facts and admissions of appellant show that appellee at the time of the derailment was an employee of appellant doing appellant’s work in interstate commerce.
      (2) In the opinion in Linstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 48 S. Ct. 241, 72 L.Ed. 453, heretofore discussed, the Supreme Court held that notwithstanding the fact that the Big Pour paid the deceased brakeman and had the right to discharge him, the man was doing the work of the C. & O. at the time and was therefore to be considered an employee of the C. & O. for the purpose of determining liability for his injury.

      . The Veterans Administration records do contain a statement that one doctor in 1948 “was of the opinion that patient had a mild pes cavus”, that is, a mild case of flat feet, which was congenital. But appellee has had numerous subsequent physical examinations and so far as the record before us shows, none of these subsequent examinations disclosed flat feet. And appellee successfully held down his job as a brakeman for many years. He testified that he does not believe he has flat feet.


author: SHARPE, Justice.

text:
    BIG THREE WELDING EQUIPMENT COMPANY, Appellant, v. Bobby P. ROBERTS, Appellee.
    No. 176.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 27, 1966.
    Rehearing Denied March 10, 1966.

      O. F. Jones, of Guittard, Henderson & Jones, Victoria, for appellant.
    Day, Dio & Fields, by Jean Day, Port Lavaca, for appellee.
   SHARPE, Justice.

This appeal is from a judgment rendered after jury trial in favor of appellee, plaintiff below, for $15,616.00, against appellant, defendant below. The parties will sometimes hereafter be referred to as in the trial court.

The material facts may be summarized as follows: Plaintiff suffered personal injuries on August 27, 1963, while he was an employee of the Lummus Company when he became entangled with an electric welding machine rented by the defendant to Lummus, while it was undertaking a project for the DuPont Company in Victoria County, Texas. The machine consisted of an engine connected to a generator which furnished electricity for welding on the job site, all mounted on a metal frame. As manufactured and delivered to defendant, the machine had metal doors on both sides; but they had been removed at the time it was furnished to Lummus on the job site where plaintiff was working. The fan at the front of the engine pulled air from the rear and below the doors (when they were on the machine) and pushed air out through the radiator at the front. At the time of the accident the machine was operating without the metal side doors when plaintiff passed by it carrying a manila rope which he used in his work. One end of the rope was behind him on the ground and some of it was coiled around his arm. The suction of the fan pulled the rope and the plaintiff into the machine, causing the injuries in question.

The 25 special issues submitted to the jury were answered, in substance, as follows: (1) the welding machine delivered by defendant without doors installed thereon was unsafe to be used in the vicinity, (2) this was negligence, (3) and a proximate cause of the injuries in question; (4) the defendant failed to give notice or warn of the unsafe welding machine to persons in the vicinity where delivered, (5) this was negligence, (6) and a proximate cause of the injuries; (7) defendant failed to make a proper inspection to ascertain that the welding machine was unsafe when used in the vicinity where delivered, (8) this was negligence, (9) and a proximate cause of the injuries; (10) that the welding machine in question did not have doors upon it was not open and obvious to the Plaintiff Bobby Roberts, immediately prior to the accident in question. (11) Unanswered. This issue was conditionally submitted on an answer of “It was” to issue 10. It inquired if Roberts appreciated the dangerous condition of the machine immediately prior to the accident. (12) Unanswered. This issue was conditionally submitted on an answer of “he did” to issue 11. It inquired if Roberts voluntarily exposed himself to the risks, if any, posed by the welding machine at the time and on the occasion in question. (13) That Roberts did not fail to keep a proper lookout with regard to the rope in question. (14) Unanswered. This issue was conditionally submitted on an answer of “he did not” to issue 13. It inquired as to proximate cause. (15) That Roberts did not know of the unsafe condition of the welding machine immediately prior to the accident. (16) That Roberts, in the exercise of ordinary care at the time and on the occasion in question should not have known and appreciated the unsafe condition of the welding machine in question immediately prior to the accident in question. (17) Unanswered. This issue was conditionally submitted on an answer of “he should” on issue 16. It inquired as to proximate cause. (18) That Roberts did not swing or jerk the end of the rope into the fan of the machine. (19) Unanswered. This issue was conditionally submitted on an answer of “he did” on issue 18. It inquired as to negligence of Roberts in connection with the preceding issue. (20) Unanswered. It inquired as to proximate cause. (21) The act of Lummus in failing to inspect the machine was not the sole cause of the injuries; (22) the act of Lummus in furnishing the machine for its employees was not the sole cause of the injuries; (23) the act of Lummus in failing to warn Roberts of the condition of the machine was not the sole proximate cause of the injuries; (24) the event in question was not the result of an unavoidable accident; (25) damages suffered by Roberts amounted to $15,000.00. The parties stipulated to additional amounts in the sum of $616.00, and the aggregate amount of $15,-616.00 was carried forward in the judgment.

Appellant’s original brief contains 36 points of error which are grouped under three general contentions as follows: One: that plaintiff failed to establish a cause of action against defendant based upon negligence, under which heading 21 points are grouped for briefing; Two: that the trial court committed certain procedural errors which require a new trial, under which heading 14 points are grouped for briefing; and Three: that the verdict was excessive, involving only point 12.

After oral argument and submission of the case, appellant moved that it be allowed to file an amended brief for the purpose of removing certain questions concerning the form of its original brief. The amended brief contains 113 points. The motion alleges that the amended brief does not include any new or substantially different points of error or argument and does not change the basic grounds upon which appellant’s appeal is predicated. Leave was granted to file the amended brief on that basis. However, in the interest of desired brevity, the case will be discussed in terms of the points in appellant’s original brief. A summary prepared by the court shows the relationship of appellant’s original points to those in the amended brief. As will hereafter be more fully discussed, many of appellant’s points are not properly preserved for review and some of them are not sufficiently briefed either in appellant’s original or amended brief. All of the expanded number of points in appellant’s amended brief which were properly preserved for review will be considered.

The case turns upon twelve of appellant’s original points, ten of which are included in the above-mentioned group one and two of them in group two. Appellant’s remaining twenty-four original points are not determinative for the reasons hereafter stated.

Under its group one points (1, 2, 3, 15, 18, 23, 30, 32, 34, & 35), appellant contends that there was no duty owing by defendant to plaintiff, particularly because of lack of privity; that there was no evidence of foreseeability, hence no proximate cause; and, under the heading “failure of trial court to prevent reversal” that the acts of the Lummus Company in accepting and furnishing the machine broke the causal connection of any duty of defendant and became intervening causes of the accident. None of these contentions is well taken.

The ultimate facts found by the jury and others conclusively established by the evidence support the judgment in favor of plaintiff. Defendant leased the welding machine to Lummus for immediate use on the job site. The parties agree that when the doors were in place on the sides of the machine it was safe. Defendant removed the doors and furnished it to Lummus in such condition that objects could be pulled into the machine from the sides of it. The jury finding that the machine was unsafe to be used in the vicinity in question was amply supported by evidence as are the findings that Roberts did not know of the unsafe condition and should not have known and appreciated the same immediately prior to the accident in question. In that situation the lessor-defendant is subject to liability to those whom it should expect to use the chattel or to be endangered by its probable use, for physical harm caused by its use in a manner for which, and by a person for whose use, it is leased, if it fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it. See Restatement of the Law of Torts, Second, § 408. Comment “a” under that section states: “The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee.”

Other sections of Restatement of the Law of Torts, Second, involve similar principles. See, particularly, sections 388 and 407, reading as follows:

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

In this case the defendant at least had reason to know that the machine was likely to be unsafe and dangerous in connection with the use for which it was supplied. When the side doors were removed from the machine the protection afforded by them was eliminated and air was permitted to be pulled in from the openings at the sides instead of from below the doors. The act of the defendant brought about the unsafe condition of the machine which did not theretofore exist. The defendant had no reason to believe that those for whose use the chattel was supplied would realize its unsafe condition; yet the defendant failed to take any steps to inform Lummus or its employees of such unsafe condition or of the facts which made tthe chattel likely to be dangerous. The rules announced in sections 388, 407 and 408 of Restatement of the Law of Torts would therefore be applicable.

In Lackey v. Perry, 366 S.W.2d 91, 94, 95 (Tex.Civ.App.1963, n. w. h.) the court said:

“ * * * Although the rule in this State is that a bailor for hire is not an insurer of the fitness of the subject of the bailment, he is liable for personal injuries to, or the death of, the bailee or third persons proximately resulting from the dangerous or defective condition of the chattel while it is being used for the purpose known by the bailor to be intended, where the bailor has not used reasonable care to see that the chattel, as of the time of its letting, was free from any defects or weakness rendering it unfit for its known use, unless the defect was known or was obvious to the person injured or killed so that the person could have avoided injury. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017; Continental Bus System, Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153, writ ref. n. r. e.; Nesmith v. Magnolia Petroleum Co., Tex.Civ.App., 82 S.W. 2d 721, no writ history; Vol. 2, Restatement of the Law of Torts, § 388; 8 Tex.Jur.2d, Bailment, § 19; 131 A. L.R. 845. * * * ”

See, also, Producers Chemical Co. v. McKay, 366 S.W.2d 220 (Tex.1963); Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); International Derrick & Equipment Co. v. Croix, 241 F.2d 216 (5 C.A.1957), Cert. den., 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1428.

Under the rules announced in the foregoing authorities privity of contract between the plaintiff and defendant was not necessary. The defendant owed a duty to plaintiff to protect him from dangers known to the defendant or of which it should have known on account of the duty to inspect. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Gennell, Inc., v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). It is established by jury findings that defendant took no steps to protect or to warn the plaintiff and others similarly situated of the unsafe condition of the machine. In the light of the jury findings, which are supported by legally and factually sufficient evidence, that the plaintiff did not know of the unsafe condition of the machine and should not have known and appreciated the same, defendant’s contention of “no duty” is untenable and is overruled. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); Bolin v. Tenneco Oil Co., 373 S.W.2d 350 (Tex.Civ.App.1963, wr. ref., n. r. e.).

Appellant’s contention that there is no evidence that the machine was unsafe is also without merit. Several witnesses testified to facts and by way of opinion and conclusions based upon facts and their experience that the machine was unsafe and dangerous. Such testimony is legally and factually sufficient to support the answers of the jury to the special issues submitted, as hereinbefore set out.

Appellant’s contention that there was no evidence of foreseeability, hence no proximate cause, cannot be sustained. Appellant furnished the machine with the side doors removed for use on a job site where fifty or more men of different crafts were working. It could reasonably be expected that those workmen might pass by the machine in close proximity to it. Well settled rules are applicable here. In Carey v. Pure Distribution Corporation, 133 Tex. 31, 124 S.W.2d 847, 849 (1939), the court said:

“ * * * it is not required that the particular accident complained of should have been foreseen. All that is required is ‘that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ ”

In Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416 (1953), the court said:

“The test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act.”

The injury to plaintiff was clearly foreseeable by defendant and proximate cause is not lacking.

Under the heading “failure of the trial court to prevent reversal” appellant argues that the acts of the Lummus Company in accepting and furnishing the machine broke the causal connection of any duty of defendant and became intervening causes of the accident, and that the trial court should have disregarded the jury answers to special issues 1-9 and rendered judgment for the defendant. Although it is doubtful that appellant has sufficiently briefed the points involved, it appears in any event that they are without merit. The evidence was not conclusive as to such matters. The jury findings on special issues 21, 22 and 23 that the alleged acts and omissions of Lummus were not the sole cause were favorable to the plaintiff, against the defendant, and must be upheld.

Under its group two points appellant contends under point 29, -that the trial court erred in failing to instruct the jury in regard to the definition of the term “open and obvious”, and, under point 36, that the trial court erred in failing to make additional findings of fact and conclusions of law as requested by defendant. Point 29 is not well taken because special issue 10 was originally submitted to the jury without definition or request for one. The jury, during its deliberation, wrote a note to the judge concerning this issue which he declined to answer except to refer to the charge of the court as originally submitted. At that time counsel for the defendant requested the trial court to give a further instruction on the term “open and obvious”, which was refused. As it appears in the transcript, the requested instruction is ambiguous and the trial court properly declined to give it. Further instruction was not required under the conditions shown by the record. Point 36 is also without merit. There was no necessity or occasion for findings to be made by the trial judge under Rule 279, Texas Rules of Civil Procedure or otherwise. The request made was not for findings on omitted issues in support of the judgment. Insurance Company of St. Louis v. Bellah, 373 S.W.2d 691 (Tex.Civ.App.1963, n. w. h.).

The foregoing discussion disposes of appellant’s twelve points of error which have been properly preserved for review.

Appellant’s remaining twenty-four points in its original brief cannot be considered by us because they fall into one or more of three categories, (1) the objections to the court’s charge were not preserved for review (points 14, 16, 19, 20, 21, 22, 31, 33); (2) the motion for new trial does not furnish a sufficient predicate for review (the points mentioned in (1), immediately preceding, and points 4, 5, 6, 7, 8, 9, 10, 11, 13, 17, 24) and (3) the points are not sufficiently briefed (points 12, 25, 26, 27, 28).

The transcript contains an instrument filed with the clerk which recites that after the close of the evidence counsel for appellant dictated certain objections to the charge of the court. However, the record does not anywhere show that such transcribed obj ections were presented to the trial judge so that he could endorse his ruling and official signature thereon as is required by Rule 272, T.R.C.P. In this state of the record appellant’s objections to the charge of the court are not properly preserved for review. Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701, 705 (Tex.Civ.App.1965, wr. ref., n. r. e.); Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395, 397 (Tex.Civ. App.1964, wr. ref., n. r. e.). It further appears that even if Rule 272, T.R.C.P. had been complied with as to appellant’s objections to the charge of the court, they were not properly preserved for review in the motion for new trial. In such connection appellant relies upon paragraph IX of its amended motion for new trial reading as follows:

“The Trial Court erred in overruling each and every objection and exception to the Court’s Charge as set forth in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Defendant’s exceptions to the Court’s Charge as filed in the papers of the case to which reference is here made for all purposes the same as each paragraph therein set forth was incorporated verbatim herein.” .

The dictated objections to the court’s charge cover more than five pages of the transcript, and some of the paragraphs therein contain several objections recited in sequence without any indicated subdivisions. Here, there is not sufficient compliance with Rules 321, 322, and 374, T.R.C.P. Our Supreme Court has spoken on the subject as follows:

“An assignment of error in a motion for new trial which merely directs the trial judge to scan all of a party’s obj ections to the charge of the court is legally insufficient to require or to justify consideration of a point of error based thereon.” Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 891 (1960).

For the reasons stated the charge of the court has been considered by us as though no objections were made to it. Error is not presented on account of such alleged objections or appellant’s points in connection therewith.

Appellant’s points for which there is no proper predicate in the motion for new trial, in addition to those just mentioned, are as follows: Point 4 through 11 (alleged factual insufficiency to support the jury answers to special issues 1 through 9, 10, and 16); point 13 and 17 (alleged lack of pleadings to authorize submission of special issues 1 through 6); and point 24 (alleged error in failing to grant motions for instructed verdict). See Wagner v. Foster, supra; Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943).

Appellant’s points not sufficiently briefed to authorize consideration are numbers 12, 25, 26, 27 and 28. Point 12 asserts that the answer to special issue 25 (the damage issue) is excessive. Point 25 asserts that “The Trial Court erred in admitting into evidence testimony which was irrelevant and immaterial.” Point 26 asserts that “The Trial Court erred in failing to strike inadmissible, irrelevant, and immaterial evidence.” Points 27 and 28 assert error in the overruling of defendant’s special exceptions to plaintiff’s petition. The points mentioned present nothing for review because not in compliance with Rule 418, T.R.C.P. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1956); Weatherred v. Kiker, 357 S.W.2d 182 (Tex.Civ.App.1962, wr. ref., n. r. e.).

The judgment of the trial court is affirmed.

      . Appellant’s points in its original brief are listed first, -with the points of the amended brief shown in parenthesis. Point one (1, 2, 3) ; point two (4, 5, 6) ; point three (7, 8, 9); point four (10, 11, 12); point five (13, 14, 15); point six (16, 17, 18); point seven (19, 20, 21); point eight (22, 23, 24); point nine (25, 26, 27); j)oint ten (28); point eleven (29); point twelve (30); point thirteen (31, 32, 33): point fourteen (34, 35, 36); point fifteen (37, 38, 39); point sixteen (40, 41, 42); point seventeen (43, 44, 45); point eighteen (46, 47, 48); point nineteen (49, 50, 51); point twenty (52, 53, 54); point twenty-one (55); point twenty-two (56, 57, 58); point twenty-three (59, 60, 61, 62, 63, 64, 65, 66, 67); point twenty-four (112); point twenty-five (68, 69, 70) ; point twenty-six (71, 72, 73) ; point twenty-seven (74) ; point twenty-eight (75, 76) ; point twenty-nine (77) ; point thirty (107, 108, 109, 110, 111, 113) ; point thirty-one (78) ; point thirty-two (79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96) ; point thirty-three (97, 98, 99) ; point thirty-four (100, 101, 102) ; point thirty-five (103, 104, 105) ; point thirty-six (106).


author: COLEMAN, Justice.

text:
    STATE of Texas et al., Appellants, v. LeBLANC, INC., Appellee.
    No. 14700.
    Court of Civil Appeals of Texas. Houston.
    Feb. 24, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., and J. C. Davis and Malcolm L. Quick, Asst. Attys. Gen., Austin, for appellants.
    St. John Garwood; Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from the action of the trial court in granting a summary judgment. The principal question to be decided is whether a contractor is liable for damage to the premises of the owner, with whom he has contracted to construct improvements, where such damage is caused by the negligence of a sub-contractor.

Appellee entered into a contract to construct certain alterations, additions and improvements to the pharmacy building of Texas Southern University in accordance with lengthy and detailed plans and specifications. Thereafter appellee sub-contracted all of the electrical work to a company not a party to this suit. Prior to the completion of the contract an electrical fire occurred in the main switchboard panel of the building. This panel is the central electrical distribution point both for the old building and the new addition, and the fire caused damage throughout the area served by the panel. Appellee repaired all damage to the work required to be constructed by it in the plans and specifications at its own expense. It refused to repair damage to the old building caused by the fire. Texas Southern University caused it to be repaired by another contractor and withheld the cost from the amount due appellee under its contract.

Appellee secured legislative permission to do so and brought suit against the State of Texas for the amount of the contract price so withheld. After securing answers to Requests for Admissions, appellee filed its motion for summary judgment together with a supporting affidavit. The State’s answer to the motion incorporated its answer on the merits by reference and is signed by an Assistant Attorney General and acknowledged in this fashion:

STATE OF TEXAS 1 COUNTY OF TRAVIS J
BEFORE ME, the undersigned authority, on this day personally appeared Malcolm L. Quick, Assistant Attorney General, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same, that he had personal knowledge of the matters contained therein, and that he is competent to testify to those matters, and that the information contained therein is true and correct.
/s/ Mrs. Zora H. Thurman Notary Public, in and for Travis County, Texas.

Appellee’s motion for summary judgment was granted by the trial court. On this appeal the State presents as its only point of error this proposition: “The trial court erred in granting summary judgment for the reason that a genuine issue as to a material fact exists in this cause.”

Appellants insist that this suit arises under a construction contract between appellants as owners and appellee as prime contractor; that there was no contractual relationship between the owners and the subcontractor, Melton Electric Company; and that insofar as appellants are concerned, the actions of Melton Electric Company are the actions of appellee, LeBlanc, Inc. On this premise appellants assert that the record reflects that issue has been joined on the following facts:

(1) Did Melton Electric Company, as sub-contractor for LeBlanc, Inc., negligently wire the electrical distribution panel, and was such negligence the proximate cause of the fire?
(2) Did LeBlanc, Inc., its agents, employees and sub-contractors, have exclusive possession and control of the electrical distribution panel ? [This is the essential element of the Appellants’ defense of res ipsa loquitur.]

It is obvious that the question stated in (1) above could not be material to a determination of the matters at issue unless appellee is responsible for the negligence of Melton Electric Company.

Appellee has established by its affidavit that Melton Electric Company as an independent contractor did all of the electrical work called for by the contract including tying in distribution lines into the central panel and that LeBlanc, Inc., through its employees, had no actual possession of, or did no work on, the electrical distribution panel. Under these circumstances the question posed in (2) above would not be material unless appellee is responsible for the actions of Melton Electric Company under the doctrine of re-spondeat superior.

Appellee has completed his contract with the owner in that the construction and improvements have been finished, delivered to the owner in proper condition, and occupied by the owner. Payment was withheld because of damage to other property of the owner, allegedly by reason of the negligence of the sub-contractor. The usual rules of law governing negligence actions are applicable. There is no evidence of a master-servant relationship between the appellee and the sub-contractor. Appellee, therefore, is not liable for the damage caused by the negligence of the sub-contractor in the absence of any question of contractual liability. Weeks v. Texas Illinois Natural Gas Pipeline Co., Tex.Civ.App.1955, 276 S.W.2d 321; Rector v. Walden, Fulton & Payne, Tex.Civ.App. 1954, 276 S.W.2d 933, ref., n. r. e.

In 27 Amer.Jur., Independent Contractors, § 20, this statement is found:

“Dual Character of Relation.— Although in all ordinary transactions, the existence of the relation of independent contractor and principal employer, as between two given persons, excludes that of principal and agent, or master and servant, there is not necessarily such repugnance between them that they cannot exist together with regard to different portions of the same work; and an employee may be an independent contractor as to certain work, and yet be a mere servant as to other work for the same employer. In cases where such concurrent existence is established, however, the enforceability of the claim, whatever it may be, depends upon whether, at the time when the circumstances to which the claim has reference supervened, the person employed was acting in the capacity of an independent contractor, servant, or agent.”

Since no issue of fact is presented by the record as to whether the sub-contractor occupied the status of an independent contractor while engaged in the work required by its contract with appellee, the mere fact that the work performed by the sub-contractor was work for which appel-lee was responsible under the contract with appellants did not make the sub-contractor an agent or servant of the contractor.

Since appellee’s motion was supported by admissions and an affidavit sufficient upon its face to establish facts which, if proven at the trial, would have entitled appellee to an instructed verdict, it was incumbent upon appellants to specify opposing evidence which raised an issue as to some material fact. Sparkman v. McWhirter, Tex.Civ.App.1954, 263 S.W.2d 832, writ ref.; Gulf, C. & S. F. Ry. Co. v. McBride, 1959, 159 Tex. 442, 322 S.W.2d 492.

The answer filed in opposition to the motion for summary judgment cannot be considered as an affidavit. The notary public has merely certified that the person signing the pleading stated that the matters set out therein were true and correct. It is essential that one making an affidavit swear or affirm under oath that the facts stated are true. In addition, it appears from the instrument that knowledge of the facts stated therein was probably acquired by the Assistant Attorney General from others since it is improbable that he was present and saw appellee, its employees and agents, when they performed work on the central electrical panel or that he knows from personal inspection that the fire started in the central panel and spread to electrical conduits and wiring in the old building. When an attorney makes such an affidavit and it appears improbable that he knows the facts stated therein from personal experience, the affidavit should contain specific details which would be admissible in evidence at a trial. Sparkman v. McWhirter, supra; Lawyers Surety Corp. v. Sevier, Tex.Civ.App.1961, 342 S. W.2d 604; Nagelson v. Fair Park Nat. Bank, Tex.Civ.App.1961, 351 S.W.2d 925, ref., n. r. e.; Gaston v. Copeland, Tex.Civ.App.1960, 335 S.W.2d 406, ref., n. r. e.

The judgment of the trial court is affirmed.