author: DIXON, Chief Justice.

text:
    Eddie C. FLORA et ux., Appellants, v. Charles B. SCOTT, Appellee.
    No. 16596.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 24, 1965.

      Fred H. Benners, Matthews, Payne, Pace, Sands & Benners, Dallas, for appellants.
    John Louis Shook, John D. Crawford, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   DIXON, Chief Justice.

Appellants Eddie C. Flora and wife Ann Flora brought suit against appellee Charles B. Scott for damages for alleged personal injuries to Ann Flora resulting from an automobile collision at a street intersection. Mrs. Flora was driving one vehicle, ap-pellee Scott the other.

A jury returned a verdict finding appel-lee Scott guilty of negligence and proximate cause in several particulars. As to contributory negligence and proximate cause all issues were answered in favor of appellants except Issues Nos. 8 and 8A where answers adverse to appellants were made in regard to proper lookout and proximate cause. In answering the damage issues the jury found no damages by reason of physical pain, mental suffering, or lost earnings. However, the jury did find past doctors’ and medical bills of $500 and $300 respectively and $210 future medical bills.

Based on the jury verdict judgment was rendered that appellants take nothing by their suit.

The trial lasted several days. Only a partial statement of facts was brought up on appeal. It reproduces only ten pages of the evidence adduced during the trial before the jury and thirty-five pages of the evidence on motion for new trial. The original of the deposition of appellants’ treating doctor is also included in the record.

Appellants say they were unable to purchase a full statement of the testimony because of the cost of the record, estimated by the court reporter at $800. However, there is no showing that appellants sought to avail themselves of Rules 145, 355 and 380, Texas Rules of Civil Procedure.

In their first point on appeal appellants complain that the trial court refused to comply with Rule 372, T.R.C.P. Appellants tendered eight bills of exception for the court’s approval. The judge refused to approve any of them. He returned them to appellants with his refusal

endorsed thereon. Thereafter the judge signed seven “Qualified Bills of Exception.”

We cannot consider appellants’ eight proffered bills of exception which the judge refused to approve. Walden v. Sanger, Tex.Civ.App., 250 S.W.2d 312; Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689; 4 Tex.Jur.2d 43, § 513. In the absence of bystanders’ bills the bills signed by the judge as qualified bills must be accepted by this court. Ray v. Pecos & N. T. Ry. Co., 40 Tex.Civ.App. 99, 88 S.W. 466; Rule 372(j), T.R.C.P.

Appellants assert in their brief that the trial judge violated Rule 372, Sections (h) and (i) by refusing to suggest any corrections in appellants’ proffered bills of exception. However, there is no official record before us of the happenings at the hearing on appellants’ proffered bills of exception. Therefore the official record is insufficient for us to pass on this alleged violation of Rule 372, Sections (h) and (i). Appellants’ first point on appeal is overruled.

In their second point on appeal appellants say that the jury’s specific findings in regard to each and every aspect of Mrs. Flora’s driving exonerated her from any negligence, thus rendering the finding that she failed to keep a proper lookout without meaning or effect.

In support of their contention appellants cite the holding of our Supreme Court in Barclay v. C. C. Pitts Sand & Gravel Co., Tex., 387 S.W.2d 644. It was there held that an issue on proper control is quite broad and embraces any and every act or omission on the part of a driver which affects his control of the vehicle he is operating. Consequently when all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. If it is given in that situation the specific findings will control what would otherwise be a conflicting answer to the proper control issue.

Appellants argue that the submission of proper lookout as a contributory negligence issue here is analogous to the submission of proper control in the Barclay case. Their view is that all the elements of proper lookout, a very broad issue, are submitted specifically, namely, right of way, speed (acceleration), brakes (stopping or slowing), turning to right or left (steering wheel) and warning (horn). Therefore there was no need to submit the issue of proper lookout and it had no place in the charge.

We cannot sustain appellants’ point for several reasons. (1) They did not object to the submission of the issue on the ground stated in their second point on appeal. (2) In the absence of all but a small portion of the statement of facts we are unable to say whether all the acts and omissions included in proper lookout and raised by the evidence were specifically submitted. The small segment of the testimony presented in the partial statement has nothing to do with the issue of proper lookout. (3) Appellants did not file a motion to disregard the jury findings in answers to Special Issues Nos. 8 and 8A. Rule 301, T.R.C.P.; DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95. Appellants’ second point is overruled.

The substance of appellants’ third point is that they were denied a fair trial by the court’s permitting improper impeachment of Mrs. Flora’s treating doctor and her attorney with respect to highly inflammatory, collateral litigation.

The doctor’s deposition in answer to written interrogatories was taken at the instance of appellants. He refused to answer a number of cross-interrogatories on the ground that they were irrelevant. The cross-interrogatories which are material to this point inquired whether it was true that the doctor is not allowed to practice in three prominent Dallas hospitals; and whether he had lost a damage suit for $1,000,000 against one of the hospitals in which suit he had been represented by the attorneys who represent appellants in this suit.

Appellants filed a motion in limine asking the court to instruct appellee not to refer in any way to the interrogatories which the doctor had refused to answer. Appellants contend that the doctor was entitled to refuse to answer the interrogatories in question because they sought to impeach his credibility by proving particular acts of misconduct, which is not a permissible method of impeachment, citing Compton v. Jay, Tex., 389 S.W.2d 639; Christie v. Brewer, Tex.Civ.App., 374 S.W.2d 908; Tellefsen v. Key System Transit Lines, 158 Cal.App.2d 243, 322 P.2d 469, 67 A.L. R.2d 556, and McCormick & Ray, “Texas Law of Evidence”, §§ 655, 690 (2nd Edition).

By way of reply appellee points out that in answer to direct interrogatories the doctor, with reference to his medical qualifications, named various colleges, hospitals, etc., where he had studied and practiced neurological surgery. It is appellee’s view that the cross-interrogatories in question are fair rebuttal questions to the above mentioned direct interrogatories. We do not reach this question for decision, for as we shall show hereinafter appellants’ third point will be overruled for other reasons.

The court not only overruled appellants’ motion in limine, but in its order directed that no part of the deposition of the doctor should be allowed in evidence unless and until the witness answered Cross-Interrogatories Nos. 50, 51, 52, 53, 56 and 57. A qualified bill of exceptions signed by the court recites * * * the court further rules that none” of the doctor’s “deposition testimony could be presented to the jury unless * * * Plaintiffs stipulate affirmative answers to certain unanswered cross-interrogatories * * (Emphasis ours.) The certain unanswered cross-interrogatories are those enumerated above.

We know of no rule which authorizes a court to require a litigant to stipulate that the answers of a deposition witness to unanswered interrogatories would be in the affirmative on pain of having all of the testimony of said witness excluded. It is true that Rule 188(g), T.R.C.P. provides that when a party whose deposition is taken refuses to answer an interrogatory the interrogatory shall be taken as confessed. But the rule applies only to parties to a suit. The doctor is not a party to this suit. Rule 188 does not require even a party to a suit to stipulate that unanswered interrogatories would be answered in the affirmative. In fact, Section (h) of the rule provides that upon trial of the case the party interrogated may take exception to any interrogatory on the ground that it is not pertinent and to the answer that it is not competent evidence. In construing similar statutes in effect prior to the enactment of the present rules it was held that a party’s answer would be held to be confessed only with reference to an interrogatory which is pertinent and relevant. Harrison v. Knight, 7 Tex. 47; Barnard v. Blum, 69 Tex. 608, 7 S.W. 98; Hopkins v. Robertson, Tex.Civ.App., 138 S.W.2d 310.

We think that the rule now applicable when a deponent refuses to answer an interrogatory is Rule 215a, T.R.C.P. as amended in 1962.. It applies to parties to a suit and to other deponents. It provides for certain procedures and if a witness persists in refusing to answer after being instructed by the judge to answer, the judge may hold the witness in contempt, or “ * * * may make such orders in regard to the refusal as are just * * However Rule 215a does not provide, and we do not believe it was intended to mean, that a party may be required on penalty of the exclusion of all a witness’ testimony to stipulate an affirmative answer to an unanswered interrogatory, thereby waiving his objections to the admissibility of the interrogatories and arfswers.

Nevertheless we cannot sustain appellants’ third point because the record shows that appellants did elect to stipulate and did agree to affirmative answers to the cross-interrogatories in question and by their stipulation waived their right to object to the ruling of the court.

Appellants say that the stipulation is not binding because they were “coerced” by the trial court into making the stipulation. We are unable to agree. Notwithstanding the pressure put upon them by the court appellants could have, and if they wished to preserve the point for appeal they should have, refused to enter into the stipulation or at least stipulated to the affirmative answers only on condition that they, appellants, retain the right to object at the trial to the admissibility of the cross-interrogatories and the answers on grounds of relevance and competence. Then they could have made objections at the trial to the court’s refusal to let them introduce in evidence any part of the doctor’s deposition, or to the court’s allowing the questioned interrogatories and the answers to them to be read to the jury. Thus the correctness of the court’s ruling would be before us for consideration. But in the face of the stipulation and in the absence of any showing that at the trial objections were made to the reading to the jury of the cross-interrogatories and the answers, we must and we do overrule appellants’ third point.

In their fourth to eleventh points inclusive appellants assert that they were denied a fair trial because (4) the trial court dined with appellee’s counsel in full view of the jury; (5) the court permitted ap-pellee to amend and assert numerous affirmative defenses the day the case was set for trial; (6) the court permitted ap-pellee to put on a rebuttal witness before appellants had completed the presentation of their evidence, the court stating that this was being done so the witness could leave for Las Vegas, Nevada; (7) the court permitted appellee to default on fulfillment of notice and commission to take Dr. Wolf’s deposition, then allowed ap-pellee’s attorneys to argue to the jury that appellants had not presented any testimony from Dr. Wolf; (8) the court allowed an aerial photograph in evidence with no valid identification; (9) the court instructed the jury that they would he released at a certain time and could plan business trips accordingly, thus causing the jury to act with undue haste in answering the issues; (10) the court instructed the jury that a lawsuit should be fun; and (11) the court improperly communicated with the -jury during the jury’s deliberations.

We find nothing in the partial record before us which would support a finding that these alleged incidents probably caused the jury to return an improper verdict. Certainly there is nothing in the partial statement of facts which would justify us in holding that the jury, by reason of any one, or a combination of the alleged incidents, was cause to find that Mrs. Flora failed to keep a proper lookout on the occasion of the collision, which finding was the basis for the judgment adverse to appellants. Dennis v. Hulse, Tex., 362 S. W.2d 308; Gordon v. Aetna Casualty & Surety Co., Tex.Civ.App., 351 S.W.2d 602; Lane v. Fair Stores, 150 Tex. 566, 243 S.W. 2d 683; Robinson v. Howard County, Tex. Civ.App., 287 S.W.2d 234.

As to the fourth point the record discloses that during a recess prior to an evening session the participants in the trial had dinner at the only nearby restaurant which was open for business at the time. In full view of all or most of the members of the jury one of the attorneys for appellee took a seat at a table at which the judge, the bailiff and the court reporter were dining. They were seen to engage in friendly conversation. The restaurant was fairly crowded, but there was room for the attorney to sit elsewhere. Appellants and their attorney sat some distance away.

It is understandable that litigants, seeing their opponent’s attorney apparenly fraternizing with the judge, might feel that they were at a disadvantage in the trial, no matter how innocent in fact the conduct complained of may have been. At the hearing on appellants’ motion for new trial there was testimony that in the conversation at the judge’s table the case on trial was not mentioned. There is no showing that the matter was brought to the judge’s attention by an objection made during the trial, or that a motion for mistrial was presented. We cannot say that the jury was probably influenced against appellants by the incident. However, attorneys should be quite circumspect in their idations with a judge during a trial, carefully avoiding the least semblance of personal friendship or familiarity which could possibly be misunderstood by the jury; for, like Caesar’s wife, they must not only be innocent of wrongdoing, but their conduct must be above suspicion.

As to appellants’ fifth point: so far as the record shows appellee was permitted to amend his pleadings on the day the case was set for trial, but the case did not actually go to trial until seven days later. Appellants did not plead surprise or ask for a postponement. Under the circumstances reversible error is not shown. Rule 63, T.R.C.P.; Davis v. Nat’l Acceptance Co., Tex.Civ.App., 233 S.W.2d 321; Miller v. Wagoner, Tex.Civ.App., 356 S.W.2d 363, 367; Wrenn v. Pilgrim, Tex. Civ.App., 360 S.W.2d 420, 423.

As to appellants’ sixth and eighth points: we are of the opinion that the court’s actions do not constitute error; or, if they do, the partial record before us furnishes no basis for us to hold that it caused an improper verdict or judgment. Dennis v. Hulse, Tex., 362 S.W.2d 308; Robinson v. Howard County, Tex.Civ.App., 287 S.W.2d 234.

As to appellants’ seventh point: we know of no rule which requires a party to proceed to take a deposition though he may have previously caused notice and a commission to issue. Moreover, appellants elected to continue with the trial notwithstanding the fact that Dr. Wolf’s deposition had not been taken. With only a small part of the statement of facts before us we have no basis for holding that improper argument probably caused the rendition of an improper judgment. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Lehmann v. Krahl, 155 Tex. 270, 285 S.W.2d 179.

As to appellants’ ninth and tenth points: the record discloses that on Friday afternoon the court addressed these remarks to the jury:

“ * * * you may make arrangements to be released sometime Monday. You men that have got these trips, whenever you have finished. Because two of the men have to go on trips, now, by 5:00 o’clock if you haven’t reached your verdict, well, we will go right on into the evening. I have got something to do but I will stay with you down here. We want to get the case over and I want to get the men on their way.”
⅝ S|í ⅜ ⅝ ⅜
“Remember my instructions to you seriously now. I try to throw a little bit of fun in this. This is serious questions to both of these parties here, and I don’t make light of any of their problems here, nor your responsibility nor mine. If we don’t have a little fun now and then—I am here at all times. You see, I have to look at these people all the time, especially these lawyers, so I have to don’t let it get grim in here if I can keep from it.”

We cannot say that the above quoted remarks of the trial judge of themselves standing alone constitute reversible error. Lynn v. Haecker, Tex.Civ.App., 244 S.W.2d 539. In any event, we must say again that in the absence of all but a small portion of the statement of facts we have no basis for holding that the remarks of the judge probably caused the rendition of an improper judgment.

As to appellants’ eleventh point: the record shows that on Monday afternoon the bailiff relayed messages from the jury to the judge in regard to the question whether the jury desired a recess or desired to continue their deliberations, or desired to come back the next day. The jury after several such inquiries finished their deliberations about ten or fifteen minutes after the last inquiry. Appellants say that those happenings show that the court was in a hurry—an idea which was conveyed to the jury by the several interruptions by the bailiff.

The conversations between the bailiff and the jury took place through the open door of the jury room, with the jury in the jury room, the bailiff in the court room, not the jury room, and the judge on the bench. These communications took place within the sight and the hearing of the parties, their attorneys and the court without objection from anyone at the time so far as the record shows.

The above incidents show a failure to comply with Rule 285, T.R.C.P. However, under the circumstances they do not justify a reversal of the judgment, since the record does not show that injury probably resulted. Ross v. Tex. Emp. Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541; Whelan v. State, Tex.Civ.App., 271 S.W.2d 108, 118 (rev. on other grounds, 155 Tex. 14, 282 S.W.2d 378).

All of appellants’ points on appeal are overruled.

The judgment of the trial court is affirmed.

ON REHEARING

We were mistaken in our original opinion in our discussion of appellants’ second point when we said that appellants did not file a motion to disregard the jury’s findings in answers to Special Issues Nos. 8 and 8A. In their motion for judgment and in their motion for new trial appellants alleged that there was no evidence or that there was insufficient evidence to support the jury’s answers to the two issues.

However, we cannot sustain appellants’ second point since only a partial statement of facts was brought up on appeal. Only a small portion of the testimony was reproduced. From this fragment we are unable to determine that there was no evidence or that there was insufficient evidence to sustain the jury’s answers.

With reference to their third point appellants contend that they did object, just as we suggested they should have, to the court’s requirement that they stipulate affirmative answers to certain cross-interrogatories which Dr. Weary had refused to answer. The trial court’s Qualified Bill of Exceptions No. 1 states:

“That the court further ruled during the trial that none of Dr. Weary’s deposition testimony taken by and in behalf of Plaintiffs could be presented to the jury by the Plaintiffs in the trial of Plaintiffs’ case unless the witness, Weary, answered certain unanswered cross-interrogatories, namely, Nos. 50, 51, 52, 53, 56 and 57 or that Plaintiffs would stipulate affirmative answers to certain unanswered cross-interrogatories propounded to Dr. Weary by Defendant, all of which rulings and stipulations made by the court and the Plaintiffs were taken down by the court reporter and would be available to the Plaintiffs if a Statement of Facts was ordered by the Plaintiffs but this he has failed to do. Plaintiffs’ counsel elected to stipulate answers to certain cross-interrogatories which were unanswered in order that he could admit into evidence answers to direct interrogatories propounded to and answered by the witness, Dr. Weary.
“That Plaintiffs objected to such rulings by the court and were granted leave ‘to have their full bill’, including the following grounds for objections, but nevertheless the Plaintiffs elected to stipulate answers to the very questions he was objecting to, * *

The record is not clear. The phrase “during the trial” is broad enough to encompass all of’ the proceedings which form part of a trial from the time of pretrial hearings, or hearings in limine to the overruling of appellants’ amended motion for new trial. The partial statement of facts does not include the objections or proceedings which took place “during the trial” at the time Dr. Weary’s deposition was read to the jury.

Further, there is no showing that Dr. Weary was unavailable as a witness in person. In other words, it is not shown that appellants would have been compelled to do without Dr. Weary’s testimony even if they had declined to stipulate and Dr. Weary’s deposition had been excluded en7 tirely.

In any event, our Supreme Court has held that we are required to consider the entire record in determining whether to reverse a judgment because of some error committed in the course of the trial. Dennis v. Hulse, 362 S.W.2d 308, 310. See also Robinson v. Howard County, Tex.Civ.App., 287 S.W.2d 234. Since only a partial statement of facts is before us in this case, it is obviously impossible for us to consider the entire record.

We have carefully considered appellants’ motion for rehearing and have concluded that it should be overruled. It is so ordered.

Overruled.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Hal ANDERSON, Appellant, v. Cole SMITH et al., Appellees.
    No. 16648.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 81, 1965.
    Rehearing Denied Jan. 28, 1966.
    Witts & Ewing and Blair Rugh, Dallas, for appellant.
    Roy P. Cookston, Dallas, for appellees.
   BATEMAN, Justice.

The appellees Cole Smith and Robert Ekblad sued the appellant Hal Anderson for an amount claimed to be due them for architects’ services rendered to appellant under a written contract providing for certain rates of hourly compensation. Appellant defended on the grounds (a) that the alleged contract was not with him but with a Texas corporation known as Hal Anderson, Inc., and (b) that the compensation agreed upon was a fixed fee of $5,000, which had been fully paid. The jury found in response to special issues that: (1) before appellees commenced the preparations of the plans in question Hal Anderson as an individual agreed to pay them for their services on an hourly basis; (2) appellees’ services were performed in accordance with the terms of the agreement for Hal Anderson ; (3) appellees have not been fully paid under the terms of the agreement; and (4) the amount due them by Hal Anderson was $8,312. Appellees received judgment for this amount. We affirm.

Appellant’s four points of error on appeal raise in different ways but one issue: Was it proper for the court to hold him individually liable inasmuch as the contract for the construction of the home was between the owner, Mr. Lay, and the corporation, Hal Anderson, Inc., and appellees received checks signed by “Hal Anderson, Inc.”? Appellant contends that the manner of signing these checks was sufficient to put ap-pellees on inquiry which, if pursued, would have revealed that they were working for the corporation, Hal Anderson, Inc., instead of appellant.

The contract sued on is in the form of a letter dated November 30, 1960 from ap-pellees to appellant in which appellees stated: “This is to put on record our discussion * * * concerning the work that we may do for you in the future. This is generally the way we have charged you in the past. Time sheets are kept and the rates are as follows:” (Then follows the statement of a certain hourly rate for members of the firm and a lower hourly rate for draftsmen. The letter then states that appellees will “bill each job separately giving a breakdown of time and materials,” and that if this meets with the approval of the addressee he is requested to sign in the space provided below and return to appel-lees.) Appellant did sign in the space provided, dating it December 2, 1960, and returned the letter to appellees. Nearly a year later, in the fall of 1961, appellant requested appellees to prepare certain sketches and plans for a luxury residence which appellant hoped to build for one Herman Lay. Preliminary sketches were made and the appellee Cole Smith met with appellant and Mr. Lay, and later went with appellant to Mr. Lay’s former home in Atlanta, Georgia, and furnished such additional detailed plans and specifications as appellant requested, and even furnished to appellant a printed form of contract for the construction of the home, which contract form was filled in and signed by Mr. Lay and “Hal Anderson, Inc.” This was dated March 12, 1962, but it was not shown that either of the appellees ever actually saw the contract after it was signed or actually knew that it had been signed by Hal Anderson, Inc., until after the building had been completed. Under dates of April 27, 1962, May 14, 1962 and July 11, 1962 appellees addressed statements or bills to “Mr. Hal Anderson” for services in connection with the plans for the Lay residence, including the preliminary design and survey and the first and second portions of working drawings. The total of these bills was $5,000. A previous statement was dated February 16, 1962, covering certain expenses totaling $157.12, which is addressed on the typewriter to “Mr. Hal Anderson” after which someone wrote with pen and ink the abbreviation “Inc.” It is not shown who wrote this nor when it was written. Appellees received three checks, one dated April 2, 1962 for $157.12, one dated April 27, 1962 for $2,000 and the other dated May 15, 1962 for $1,750, all of which checks bear the maker’s name in print as “HAL ANDERSON, INC.” followed by individual handwritten signatures. These checks all bear appellees’ endorsements by rubber stamp “For deposit only.” It was not shown that either of the appellees ever saw these checks or knew how they were signed.

Appellant concedes that until such time as appellees received the checks in April and May 1962, as an agent for an undisclosed principal he was personally bound by the contract, but contends that after appellees had actual knowledge of his agency, or were put upon inquiry which if pursued would have revealed such agency, only the corporation was liable.

Some of the well established rules of law applying to this situation are as follows:

Unless the parties have agreed otherwise, a person making or purporting to make a contract with another as agent for a disclosed principal is not himself a party to the contract and is not liable thereon. Restatement, Second, Agency, § 320. However, if he purports to act on his own account, but is in fact contracting on account of an undisclosed principal, or even if it be known that he is acting as an agent but the identity of his principal remains undisclosed, the agent is a party to the contract and is personally bound thereby. Restatement, Second, Agency, §§ 321, 322; Dodson v. Peck, Tex.Civ.App., 75 S.W.2d 461, wr. dism.

“If the agent would avoid personal liability, the duty is on him to disclose his principal; it is not upon the party with whom the agent deals to discover the principal.” 3 Am.Jur.2d, Agency, p. 674, § 317.

The agent is not relieved from personal liability merely because the person with whom he dealt had a means of discovering that the agent was acting in a representative capacity. “Knowledge of the real principal is the test, and this means actual knowledge, not suspicion.” Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 160 N.E. 651.

“It is not sufficient that the seller may have the means of ascertaining the name of the principal. If so, the neglect to inquire might be deemed sufficient. He must have actual knowledge. There is no hardship in the rule of liability against agents. They always have it in their own power to relieve themselves, and when they do not, it must be presumed that they intend to be liable.” Cobb v. Knapp, 71 N.Y. 348, 27 Am.Rep. 51, quoted with approval in Saco Dairy Co. v. Norton, 140 Me. 204, 35 A.2d 857, 150 A.L.R. 1299, 1301.

“If an agent who negotiates a contract in behalf of his principal would avoid personal liability, the burden is upon him to disclose his agency to the other contracting party. And his disclosure must include not only the fact that he is an agent, but also the identity of his principal.” Saco Dairy Co. v. Norton, supra. In that case it was also held that the giving to the plaintiff of a check signed with the undisclosed principal’s name by the agent did not in itself put the plaintiff on notice of the agency, the court saying: “This was not, as a matter of law, a disclosure of the agency, nor was it evidence of such probative force that the Justice was bound to consider it conclusive of itself or in connection with other facts submitted. * * * It might well be that the check was received in such routine manner that it had little or no significance on the question of knowledge of the plaintiff.” (Quoted with approval in Howell v. Smith,. 261 N.C. 256, 134 S.E. 2d 381, 385.)

Applying these well settled principles of law to the facts of this case leads us to the inescapable conclusion that, since it was never established that appellees had actual knowledge that appellant was acting as agent for the corporation, if in fact he was, appellees were entitled to recover from appellant the amounts earned by them under the schedule of hourly rates of pay agreed upon between them.

Some Texas authorities recognize that circumstances may exist which would put the person with whom the agent is dealing on “notice of inquiry of the existence of a principal.” Veazie v. Beach Plumbing & Heating Co., Tex.Civ.App., 235 S.W. 695, no wr. hist.; Johnson v. Armstrong, 83 Tex. 325, 18 S.W. 594. However, we hold that no such circumstances were present in this case.

All of appellant’s points of error are therefore overruled.

Appellees present two cross-points in which they claim the trial court erred in refusing to award them a reasonable attorney’s fee under Vernon’s Ann.Civ.St., Art. 2226. They had included a plea therefor in their suit, but offered no evidence as to what a reasonable fee would be. Their brief concludes with a prayer that the judgment be affirmed, not that it be reversed. As we have decided to affirm the judgment, it is not necessary for us to pass on these cross-points.

The judgment, being correct, is

Affirmed.


author: BARROW, Justice.

text:
    Nick McFADIN, Appellant, v. Walter HAGGARD, Appellee.
    No. 14429.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 12, 1966.

      Edward W. Penshorn, San Antonio, for appellant.
    Chapin, Narciso & Cameron, San Antonio, for appellee.
   BARROW, Justice.

Appellee, Walter Haggard, filed this suit on May 12, 1964, against Jake Elliott, J & N Development Company and appellant, Nick McFadin, to recover for engineering services performed in subdividing a tract of land in Bexar County, Texas, pursuant to an oral agreement made with Elliott early in 1961. After a jury trial, judgment was rendered that Haggard take nothing from Elliott and J & N Development Company, but that he recover the sum of $1,928.29, including attorney’s fee of $864.-00, from McFadin.

McFadin has perfected an appeal wherein he asserts that there is no evidence that he is personally liable for this debt and, in any event, same is barred by the two-year statute of limitations. Haggard did not perfect an appeal as to the take-nothing judgment rendered in favor of the other defendants. The primary question presented on this appeal is whether a letter dated September 19, 1962, to Haggard, which is signed by McFadin, is sufficient to bar the statute of limitations and support a judgment against McFadin individually.

On February 15, 1961, Elliott signed an earnest money contract to purchase 81 acres of land located in the eastern part of Bexar County, near the community of China Groves. Elliott planned to subdivide this land into one-half acre tracts and made an oral agreement with Haggard to survey and subdivide it. The City of China Groves would not approve a subdivision of one-half acre tracts, and Elliott was forced to provide for larger tracts. He needed financial help for this type subdivision and contacted McFadin for the purpose of borrowing the necessary funds. McFadin refused to make a loan, but offered to form a corporation with Elliott to develop the property and to lend the necessary money to the corporation. This was agreed upon and the corporation formed, with Elliott and McFadin each owning half of the stock, and the land was purchased in the name of the corporation. In the middle of 1963, McFadin acquired all the stock of the corporation.

All of McFadin’s actions in this matter were taken through the corporation. There were no pleadings seeking to pierce the corporate veil; to the contrary, it was stipulated that the corporation is a legal and bona fide corporation which was incorporated on April 26, 1961. Monthly bills were submitted by Haggard and they went to Elliott individually until June 30, 1961, and thereafter they were addressed to Elliott and the corporation. On July 31, 1963, Haggard, for the first time, sent a bill addressed to McFadin and the corporation.

Under the uncontradicted evidence, the last services performed by Haggard under this contract with Elliott were on January 30, 1962. This was more than two years before the suit was filed on this oral contract, and therefore same is barred by limitations under Art. 5526, § 4, Vernon’s Ann.Civ.St. Haggard urges, however, that the suit was brought within two years from McFadin’s letter of September 19, 1962, and limitations do not bar the claim against McFadin.

Art. 5539, Vernon’s Ann.Civ.St., provides in effect that when an action may appear to be barred by a law of limitation, a written acknowledgment of the justness of the claim by the party seeking to be charged thereby shall be admitted in evidence to take the case out of the operation of the law. Under settled law, the writing must acknowledge the justness of the claim and express a willingness to pay same. See Hanley v. Oil Capital Broadcasting Ass’n., 141 Tex. 243, 171 S.W.2d 864 (Tex.1943); Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159 (Tex.1911); Payne v. Miller, Tex.Civ.App., 229 S.W.2d 857, wr. ref.; 37 Tex.Jur.2d, Limitation of Action, §§ 159— 162.

All of Haggard’s dealings were with Elliott until September, 1962, Around the middle of that month Haggard first met McFadin at a joint conference with Elliott relative to correcting field notes on a deed given to a tract of land in the subdivision. After this conference a letter, dated September 19, 1962, was written to Haggard on unlettered stationery as follows:

“As agreed you will find enclosed herewith our check in the amount of $100.00 to be applied on the account of J & N Development Corp. Another check in the like amount will be forthcoming in October.
Very truly yours,
/s/ Nick McFadin”

Accompanying this letter was a check in the amount of $100.00, signed by Elliott and McFadin and drawn upon the corporation account. Another $100.00 check on this account was sent Haggard in October, 1962.

The sufficiency of the letter to bind McFadin on the barred debt is a question of law. Friedman v. Worthy Fabrics, Tex.Civ.App., 347. S.W.2d 639, no writ history. It is our opinion that it is not sufficient. The letter does not acknowledge the justness of Haggard’s claim which was in dispute at this time. All that it agrees to pay is $200.00, which was paid as promised in the letter. The most significant defect, however, is that there is no agreement whatsoever upon the part of MeFadin individually. The letter refers to the corporation account and a corporation check was enclosed. Up to this time the debt was that of Elliott and the corporation, and no consideration is shown for McFadin to have individually assumed the debt.

The trial court erred in not granting McFadin’s motion for instructed verdict and for judgment non obstante veredicto. The judgment is reversed and here rendered that Haggard take nothing by his suit against McFadin.

      .The jury found that:
      1. The services rendered by Haggard were in substantial compliance with his oral agreement with Elliott.
      2. The reasonable value of the services rendered by Haggard under his agreement with Elliott was $1,841.79.
      3. A reasonable attorney’s fee is $864.00.


text:
    John Herbert CUDMORE, Appellant, v. RICHARDSON-MERRELL, INC., et al., Appellees.
    No. 16638.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 17, 1965.
    Rehearing Denied Jan. 28,1966.

      Witts & Ewing, Wayne E. Lee, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellees.
   DIXON, Chief Justice.

This is a products liability case. Appellant John Herbert Cudmore sued appellee Richardson-Merrell, Inc., a pharmaceutical manufacturer, alleging that he had sustained physical injuries as a result of taking a drug manufactured by appellee. Appellee’s product is known by its trade name of MER-29. Appellant’s suit is based on both negligence and implied warranty.

A jury returned a verdict that appellant had suffered damage in the amount of $28,250 due to cataracts on his eyes, flaking of skin and loss of hair. It also found that the use of MER-29 was not a proximate cause of appellant’s cataracts or his loss of hair, but that the use of the drug was the cause of the flaking of appellant’s skin. In answering other questions the jury made these findings: during the time appellant took MER-29 the drug was not unmerchantable and was not unfit for the purpose for which it was intended; ap-pellee had not failed to make such tests of the drug as a person of ordinary care would have made under the same or similar circumstances; at the time of appellant’s purchases appellee did not know facts concerning MER-29 which the purchasing public was entitled to receive in addition to the facts which were made known to the public; appellant’s cataracts were the result of “abreaction” to MER-29; the state of medical knowledge was such that appel-lee in the exercise of ordinary care could not have anticipated that the drug would cause cataracts in the human eye; appellant’s injuries did not result from a lowering of the level of his cholesterol content; and the state of medical knowledge was such that it could not be ascertained that the lowering of the cholesterol level might cause cataracts, loss of hair or flaking skip.

Based on the above verdict judgment was rendered that appellant take nothing by his suit.

FACTS

The statement of facts in this case is more than 1000 pages in length. We shall undertake only a short summary of it.

In January 1960 appellant suffered a heart attack which required six weeks hospitalization. Pursuant to his physician’s prescription appellant in August 1960 began taking MER-29, a new drug which had been on the market only two months. Appellant took a capsule a day until March 1961 when he discontinued taking the drug. While taking the drug he observed loss of hair and flaking of skin. In the fall of 1961 about four months after he had ceased to take the drug he began to have trouble with his vision. In June 1962 he consulted an eye doctor, who diagnosed his trouble as cataracts in both eyes. There is testimony in the record that appellant’s cataracts were caused by MER-29.

It is undisputed that hi 1956 MER-29 had been synthesized. Afterward it was sent to one of appellee’s biological departments for tests on animals, including rats, dogs and monkeys. In 1958 and 1959 it was tested on about 2000 human patients. In December 1959 at a conference in New Jersey sponsored by appellee, doctors and scientists reported that the drug was efficacious in the reduction of cholesterol. There were no reports at the conference of cataracts having been found in any of the patients. In the fall of 1959 a number of laboratory rats developed “corneal opacity” — not cataracts — but it was not clearly shown that such condition was caused by MER-29.

Having heard from another pharmaceutical company that some of its laboratory dogs were developing cataracts, appellee began in March to renew its experiments with its own dogs. The animals were given enormous dosages of the drug. After six months some of the dogs developed cataracts. Some time thereafter some of appel-lee’s laboratory rats also developed cataracts. In October 1961 a doctor at the Mayo Clinic reported the development of cataracts in two persons taking MER-29. Four days later a similar report came from Houston, Texas. Appellee then requested permission from the United States Food and Drug Department to issue a letter of warning which in December 1961 was sent to 230,000 physicians in the United States. On April 17, 1962 appellee addressed a general letter to physicians withdrawing MER-29 from the market.

Some time after appellant ceased to take the drug appellee requested Dr. Ronald M. Burnside, an eye specialist in Dallas, to investigate and report on the frequency of cataracts among patients using MER-29. The doctor testified that his investigation included 86 patients. Five of them had developed cataracts.

OPINION

Special Issues Nos. 2, 4 and 6 inquired of the jury whether MER-29 was a proximate cause of (2) appellant’s cataracts; (4) the flaking of appellant’s skin; and (6) appellant’s loss of hair. To Issues Nos. 2 and 6 the jury answered “No”. To No. 4 the jury answered “Yes”.

In connection withe the submission of the above issues the court gave the jury a definition of proximate cause. The definition includes these words: “ * * * and which result or some similar result ought reasonably have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances.”

In his fourth, fifth, sixth and seventh points on appeal appellant charges that the court erred in including the element of foreseeability and the phrase “in an appreciable number of persons” in the above definition, and should have predicated Issues Nos. 2, 4 and 6 on producing cause, not on proximate cause. Producing cause, as appellant describes it in his objections to the charge, is similar to the court’s definition of proximate cause except that it omits entirely the element of foreseeability and the phrase “In an appreciable number of persons”.

We think that foreseeability is properly an element in the law of implied warranty in products liability cases such as the one we have before us on this appeal.

We shall not attempt in this opinion to trace the expanding development of the law of products liability. Though much has been written on the subject and many cases involving products liability have been decided we know of no case exactly in point with the case here. This is not a case in which a foreign substance found its way into a bottled drink; it is not a case involving spoiled food; or a case having to do with a mechanical defect in the design of a piece of machinery. It is undisputed here that MER-29 was a pure unadulterated drug intended for intimate bodily use and that it was used by appellant for the very purpose for which it was intended. It consists of the active ingredient triparanol and the “vehicle” in which the triparanol is preserved.

In Texas the rule is well established on grounds of public policy that the law of implied warranty is applicable in products liability cases involving food for human consumption regardless of the lack of privity of contract between the manufacturer and the consumer. Jacob E. Decker & Sons, Inc. v. Capps, et al., 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). The rule is no doubt applicable in a case involving the use of drugs such as MER-29.

In a case such as this the manufacturer is not charged with the burden of absolute liability — the liability of an insurer. The mere fact that injury followed the use of MER-29 is not alone sufficient grounds for recovery. Bateman, “Products Liability Cases”, 27 Tex.Bar Journal, 9, 41; Wade, “Strict Tort Liability”, 19 Southwestern Law Journal, S, 13, IS.

If the liability of a manufacturer stops short of that of an insurer, where then should the line be drawn marking the limit of his liability? In passing on this question it is to be remembered that this is a case in which appellee pleaded and offered evidence and the jury found that appellant’s cataracts were the result of “abreaction” to MER-29 — that appellant belongs to a class of people not appreciable in number who are allergic Oto the drug. We believe and we hold that in such cases the manufacturer of a drug intended for human consumption or intimate bodily use should be held liable on the grounds of implied warranty for injurious results only when such results or some similar results ought reasonably to have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances. We believe our holding finds support in the following authorities: Howard v. Avon Products, Inc., 395 P.2d 1007, 1011 (Colo.1964); Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298 (1963); Merrill v. Beaute Vues Corp., 235 F.2d 893, 897 (10th Cir.1956); Magee v. Wyeth Laboratories, Inc., 214 Cal.App.2d 340, 29 Cal.Rptr. 322 (Cal.1963); Ray v. J. C. Penney Co., 274 F.2d 519 (10th Cir.1959); Ross v. Philip Morris & Co., 328 F.2d 3 (8th Cir.1964); Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 527, 26 A.L.R.2d 958 (1951); Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir.1963). See also Bateman, “Products Liability Cases”, 27 Tex.Bar Journal, 9, 41; Wade, “Strict Tort Liability of Manufacturers”, 19 Southwestern Law Journal, 5, 15, 22; Keeton, “Products Liability — Liability Without Fault”, 41 Tex. Law Rev. 855, 864-865, 870.

For additional reasons appellant’s complaint that the court erred in refusing to define “producing cause” and to submit issues predicated thereon cannot be sustained. Appellant did not plead “producing cause”. He pleaded that his damages were a “proximate result” of appellee’s breach of implied warranty. Further, he did not request issues on “producing cause” by presenting to the court in writing copies of the requested issues which he desired the court to submit, which request under Rule 273, Texas Rules of Civil Procedure must be presented to the court separate and apart from a party’s objections to the charge. Preston State Bank v. Nat’l Union Fire Ins. Co., Tex.Civ.App., 320 S.W.2d 184; McDonald, “Texas Civil Practice”, Sec. 12.34, pp. 1155-1156. Appellant’s fourth, fifth, sixth and seventh points are overruled.

In his eighth and ninth points on appeal appellant contends that the court erred (8) in including in its definition of “unfit and unmerchantable” the qualifying phrase “after weighing utility against potential danger”; and (9) in not submitting appellant’s tendered definition of “unfit and unmerchantable”, which was as follows: “Unfit and unmerchantable means that inherent condition which a reasonable person would say makes the use of the product injudicious.”

The challenged definition was submitted in connection with a special issue in which the jury was asked to answer whether MER-29 was unmerchantable and unfit for the purpose for which it was intended during the time it was used by appellant. The answer of the jury was that the drug was not unfit and unmerchantable.

We see no merit in appellant’s contention. Appellant’s own witness, Dr. Burnside, on direct examination testified “ ⅜ * you have to consider the patient’s gravity of disease and weigh it with the side effects of the drug; * * There is other testimony in the record to the same effect. See Restatement of Torts 2nd, Sec. 402A, Comment k (Tentative draft).

Furthermore, appellant- made only a general objection to the court’s definition of “unfit and unmerchantable”. He did not point out distinctly the matter to which he objected or the grounds of his objection as required by Rule 274, T.R.C.P. Appellant’s eighth and ninth points are overruled.

In his tenth and eleventh points appellant asserts that the court erred in defining the term “abreaction” and in overruling appellant’s objection to a special issue in which the term was used.

The court defined abreaction as follows:

“‘ABREACTION’ means an usual reaction resulting from a person’s unusual susceptibility to the product or intended effect of the product in question; that is, such person’s reaction is different in the presence of the drug in question from that in the usual person. An abreaction is one in which an unusual result is produced by a known or theoretical mechanism of action. An abreaction is one which could not have been reasonably foreseen in an appreciable class or number of potential users prior to March 2, 1961.”

The above definition was given in connection with Special Issue No. 15 which inquired whether the cataracts which appellant developed were an abreaction to MER-29. The jury answered that they were.

In his argument under these two points on appeal appellant says that neither allergy, idiosyncrasy or abreaction is a proper defense to an action on implied warranty; and that the above defenses are merely another attempt by appellee to introduce foreseeability into the charge. However, this argument is not embraced in a point of error or in an assignment in the motion for new trial. Therefore the particular complaints will he considered as waived. Rule 374, T.R.C.P.

However, we are of the opinion that the court did not err in submitting the issue and the definition. F. W. Woolworth Co. v. Garza, Tex.Civ.App., 390 S. W.2d 90; Walstrom Optical Co. v. Miller, Tex.Civ.App., 59 S.W.2d 895; Howard v. Avon Products, Inc., Colo., 395 P.2d 1007; Bonowski v. Revlon, Incorporated, 251 Iowa 141, 100 N.W.2d 5; Grau v. Procter & Gamble Co., 324 F.2d 309; Hursh, “American Law of Products Liability”, Sec. 8:2; Prosser, “The Assault on the Citidel (Strict Liability to the Consumer)”, 69 Yale Law Journal, 1144-1145. Appellant’s tenth and eleventh points are overruled.

In his first three points on appeal appellant says that the court erred in allowing appellee’s witness George Wheatland to testify that he had been informed by an independent market research organization that a survey it had conducted showed that 460,000 persons took MER-29 during the entire time the product was on the market and that 262,000 persons took the drug prior to March 1961, the date when appellant discontinued its use; and the court erred also in overruling appellant’s motion to strike said testimony. Appellant objected to the testimony on the ground that it was hearsay.

George Wheatland was a market research manager for appellee. The reports themselves were not introduced into evidence. Wheatland was not a participant as a member of the survey team which compiled the reports. He stated that ap-pellee subscribed to two market surveys reporting firms. They were widely used by manufacturers. He had confidence in the accuracy of the reports.

We agree with appellant that Wheat-land’s testimony was hearsay and under the circumstances ought not to have been admitted into evidence. We recognize that commercial registers, lists, mortality tables and other reports prepared for and relied on by a trade or profession are often admissible as an exception to the hearsay rule. City Nat’l Bank in Wichita v. Kiel, Tex.Civ.App., 348 S.W.2d 260, 266; Purvis v. Morehead, Tex.Civ.App., 304 S.W.2d 221; Western Union Tel. Co. v. Eckhardt, Tex.Civ.App., 2 S.W.2d 505 (judgment reformed in Tex.Com.App., 11 S.W.2d 777-778); Pacific Express Co. v. Lothrop, 20 Tex.Civ.App. 339, 49 S.W. 898; San Antonio & A. P. Ry. Co. v. Morgan, Tex. Civ.App., 46 S.W. 672; Mohr v. Shultz, 86 Idaho 531, 388 P.2d 1002. But here neither the reports themselves were made available at the trial nor were the authors or any of the compilers presented as witnesses.

Nevertheless we have concluded that the error does not constitute grounds for reversing the judgment in this case. Rule 434, T.R.C.P. We so hold for these reasons:

(1) The testimony that 262,000 people had taken MER-29 was first admitted for the limited purpose of showing the extent of appellee’s notice or knowledge. It came from another witness than Wheatland. No objection was made to its admission for that purpose. Later appellant objected to the unlimited admission from the witness Wheatland of the same information.

(2) There is evidence in the record that more that 2000 persons took the drug before it went on the market, none of whom developed cataracts, and that only one person claimed to have developed cataracts before October 1961, which covered the period when appellant was taking the drug. There is evidence also that only nine persons complained during the two years the drug was on the market.

(3) The burden was on appellant to show that he was part of an appreciable class of persons who might have been foreseen to have been harmed by MER-29 at the time he was taking it. Howard v. Avon Products, Inc., Colo., 395 P.2d 1007. Appellant’s evidence showed that only 5 of 86 patients examined developed cataracts, and this took place after appellant had ceased to take the drug. All the issues submitted to the jury are directed only to appellee’s conduct and knowledge up to March 1961, when appellant ceased to take MER-29. This was pursuant to holdings cited by appellee that appellee’s duties and appellant’s rights are to be measured as of the time appellant was taking the drug. Howard v. Avon Products, Inc., Colo., 395 P.2d 1007; Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19. No objection was made to this limitation in the period of time included in the issues.

(4) The jury found that the drug was not unfit and unmerchantable and that appellant’s cataracts were the result of abreaction as that term was defined in the court’s charge. The challenged testimony was not direct factual evidence on the above issues. It could have had no more than an indirect and unsubstantial bearing on said issues, consequently will not afford adequate grounds for a reversal of the judgment. Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806; State v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217; Younger Bros., Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546.

(5) In answer to Special Issue No. 16 the jury answered that at the time appellant was taking MER-29 the state of medical knowledge was not such that ap-pellee could reasonably have discovered that MER-29 might cause cataracts. This finding is not attacked by appellant. It stands wholly unchallenged on any ground. The submission of the issue was in keeping with the holding in Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19, 23, 35.

Appellant’s first three points on appeal are overruled.

The judgment of the trial court is

Affirmed.


author: WERLEIN, Justice.

text:
    Ola MILNER, Appellant, v. HUNTSVILLE MEMORIAL HOSPITAL, Appellee.
    No. 14661.
    Court of Civil Appeals of Texas. Houston.
    Jan. 13, 1966.
    Rehearing Denied Feb. 3, 1966.

      W. T. Bennett, Mac L. Bennett, Jr., Huntsville, for appellant; J. Edwin Smith, Houston, on motion for rehearing.
    McClain & Harrell, W. C. McClain, Cam Harrell, Conroe, for appellee; Hopkins & Alworth, Conroe, on motion for rehearing.
   WERLEIN, Justice.

On rehearing our opinion handed down in this cause on November 18, 1965 is withdrawn and the following opinion is substituted therefor.

Ola Milner, who sustained a severe burn from a heating pad applied to her person in Huntsville Memorial Hospital, appeals from a' summary judgment decreeing that she take nothing against appellee.

Huntsville Memorial Hospital was incorporated without capital stock, by certain citizens of Walker County, Texas, as a voluntary association for the purpose of the establishment, maintenance and operation of a non-profit hospital for the people of Huntsville and Walker County. The evidence shows that such hospital is a charitable institution. Appellant has no point questioning such fact.

Under the well established law in Texas, a charitable corporation is not liable for the negligence of an employee, provided the corporation itself is not negligent in the hiring or retention of such employee. Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749; Penaloza v. Baptist Memorial Hospital, Tex.Civ.App., 304 S.W.2d 203, writ ref., n. r. e. No contention is made in the instant case that ap-pellee negligently hired or retained any employee.

Appellant pleaded and contends, however, that appellee acting by and through its administrator and board in the management, control and operation of said hospital, was guilty of negligent acts and omissions in failing to furnish a heating pad designed for hospital use, and in furnishing one that generated heat to the extent that it was capable of burning a patient, and also in using such heating pad without taking steps to insure that it would not generate sufficient heat to burn a patient.

The law is well settled that a charitable corporation is liable in damages for personal injuries of a patient proximately caused by the corporation’s negligence in the exercise of its nondelegable duty to select and supply proper equipment for the care of patients, regardless of whether the patient is a paying patient or a beneficiary of the charity. Southern Methodist University v. Clayton, supra; Medical & Surgical Memorial Hospital v. Cauthorn, 229 S.W.2d 932, writ ref., n. r. e.; Baptist Memorial Hospital v. Marrable, 244 S.W.2d 567, writ ref., n. r. e.

We have carefully examined the pleadings, depositions and affidavits in this case in an effort to determine whether there is any evidence raising a genuine issue of a material fact within the purview of the rule of law enunciated in the next preceding paragraph which would make the rendition of the summary judgment in question improper. “The burden of proving that there is no genuine issue of any material fact is upon the movant, and ‘All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ ” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

The evidence shows that appellant was admitted to the hospital as a paying patient in the late afternoon of April 4, 1963, for the treatment of a low back and head injury caused by a fall. She was given a shot of some sort to relieve pain and shock before entering the hospital, and after admittance received one or more shots and other medication for the purpose of enabling her to rest. She was in a state of semi-consciousness throughout the evening and night of April 4, 1963, and the early morning of the following day. During such period, a heating pad was applied to her back by a hospital nurse or aid. The heating pad in question had a manual control with three buttons marked to indicate high, medium and low heat. Sometime between the hours of 10 o’clock in the evening of April 4 and 5 or 6 o’clock of the morning of April 5, appellant sustained severe burns on her right hip and thigh, which were caused by the heating pad.

Appellant in her affidavit stated that she recalled a girl bringing the heating pad and placing the same under her, but her memory was quite vague because she was under such heavy sedation that she didn’t really know what was going on and could not relate what happened with certainty. She could not describe the heating pad or the kind of controls that were on the same. She further stated that she was familiar with various types of heating pads, and had supervised their use on many occasions when working as-a practical nurse; that if she touched the controls of the heating pad that was applied to her back she had no knowledge thereof; that because of her condition she didn’t know what went on during the night nor what she may have done or not done; that she knew from her experience as a practical nurse that it takes an hour or more for any ordinary heating pad sold at drug stores to inflict burns such as she sustained during the night, and that the pad would have to be on high heat; that if a heating pad such as sold in drug stores is turned on high heat, and is wrapped with a heavy towel or thick cloth it will not generate enough heat to inflict burns to the human body.

She also stated in her affidavit that a push-button type heating pad may be secured in a low heat position by pushing the low button down and placing a small wooden or metal object over the button in its down position and then taping the same with adhesive tape customarily used in hospitals, and that so secured it would not inflict a burn upon the human body, even if the pad is not covered with anything. She further stated that she knew the type of heating pad which was introduced in evidence on the taking of the deposition of Mr. Goodrum, the administrator of the hospital, and that if it were secured at low heat position in the manner she described, then one could not push down the high or medium heat button and engage the same. She also stated that from her experience as a practical nurse she knew that heating pads are made and regularly offered for sale that will not generate sufficient heat to burn a person, and that such pads are ordinarily called Hospital Pads, because designed for hospital use, and they are regularly used in the cities in the Gulf Coast area; that one type of these pads known as the “Casco” pad is offered for sale by hospital supply companies and has been for several years prior to the time she received her burns on April 4, 1963; that information in regard to such heating pads had been available for some years prior to such date upon the slightest' inquiry being made; that if one of such pads had been applied to her tack or body she would not have sustained a burn; that she could not state the condition of the heating pad by which she was burned, the degree of heat that was being applied, nor how long the pad remained on her body because she was just knocked out from shock, medication and sedation; and that if she changed the button position of the heating paid she was not conscious of such act because of her condition. She said she did know what could happen to a person being treated with a heating pad on high heat that is wrapped only with a thin flannel cloth which comes with the pad, as was the pad in question.

Plaintiffs Exhibit No. S is a Casco pad that has on it control buttons designated “Hi”, “Med” and “Lo”, and an “Off”. It is called a “multi-heat genuine wet proof automatic electric heating pad, 55 Watt, 115 volts” with caution on it to use no pins. It appears to have been manufactured in Bridgeport, Conn. The evidence shows it was the type of pad used at the time appellant sustained her burns. The hospital records showed that at one time during the night redness was noted on appellant’s back and the notation was made “Patient reinstructed to keep heat pad on low,” which entry was made by the registered nurse, Mrs. Holt, who was on duty from 3 o’clock to 11 o’clock at night on April 4.

Mr. Goodrum, in his first deposition, testified that he could not identify the particular heating pad that was used; that the heating pads were bought upon his authorization by the director of nurses; that he did not give instructions to buy any particular kind or brand of heating pad — “only to buy those that we felt was competent to use in a hospital”; that he did not have occasion to see heating pads or have heating pads shown to him, or to have someone try to sell him heating pads that had controls fixed in such a manner that they locked in place, and that he had made no inquiries to determine whether or not that type of heating pad had been purchased; that the patients were instructed to keep their heating pads on low heat; that he knew when a patient is highly sedated they don’t know half the time what they are doing; that he did not know from being around hospitals that the part of the control above low heat could be taken out of a heating pad so that it would just burn on low heat, and that this was his first experience in the last eleven years to know of a patient being burned with a heating pad.

In his second deposition, which was taken on April 22, 1965, Mr. Goodrum testified in substance that they ordered their heating pads from McKesson & Robbins Company out of Houston, which is a wholesale supply company, and that they checked all of their heating pads and found them to be in good working order; that such pads were used and used safely and as far as he knew, such pads were equal to other like or similar pads used by hospitals; that he had made an investigation of certain Houston hospitals, and found that they were using an “Aqua” pad called a “K” pad that has a little motor deal that runs water through little pipes inside a pad at a preset temperature, and that the patient could not change the setting because it is locked, but that he did not know that such pads were used in all major hospitals in Houston; that in making the inquiry as suggested by appellant’s, counsel he could not say whether such hospitals had been following such procedure for a period of some two or three years, but that they were using them at the time he asked advice on what they were using; that such pads are very expensive and that they were checking to find out if they were satisfactory and worth their value; and that he found that such hospitals continued to use them and that the Huntsville hospital uses them now. An objection was made to such testimony in regard to any change made subsequent to the date of the accident to appellant because the record does not show that the change was made because of any safety measure. Mr. Goodrum further testified that he made the inquiry mostly on the advice of appellant’s counsel who questioned him about it at the time his previous deposition was taken.

Mrs. R. Yeager, who had wbrked as a registered nurse for a number of years and in several different hospitals, testified that appellant’s burn was on the outside of her right hip and thigh; that she had attended appellant the early part of the night and at that time the heating pad was on the lower part of appellant’s back; that she was in to see the patient at 4 o’clock in the morning and found that she was on her right side and the heating pad was under her right hip, on low; and that appellant when asked in the morning who turned the heating pad on high, said she didn’t know unless she did it in her sleep.

Mrs. Yeager further testified that the heating pad in question was fairly new and was not defective. It was the type of pad used in various places where she had worked, and that until the past year she had never used any other type of heating pad; that it was as good a heating pad as she had ever seen used, and was the same or similar to the ones she had seen used; that it could be purchased at drug stores and even in grocery stores, and at most any store that furnishes medical supplies, and, based on her experience, she thought most homes had them; that she did not believe they had had any other patient burned during the time she had been working at the hospital; and that it had not been her experience in any of the hospitals where she had worked, that the portion of the heating pad that moved the heat up to medium and high was removed by a mechanic or electrician. She also testified that about a year ago they started using in the hospital a new type of heating pad containing a water system, which they called a “Thermo” pad.

It is our view that the evidence raises genuine issues of material fact with respect to negligence on the part of appel-lee’s employees responsible for the manner in which the heating pad was applied and used on the occasion in question, and whose duty it was to care for and tend appellee’s patients. Since, however, there is no evidence that appellee was negligent in employing and retaining any of its employees, the negligence of its nurses and nurses’ aids in failing to use the heating pad in a proper manner would not establish liability on the part of appellee.

The evidence shows that although the heating pad in question was not defective, it would, when turned on high heat and applied for as long as an hour, burn a patient; that such heating pad was furnished by the hospital for use on all patients, including those who might be under heavy sedation or unconscious or sleeping; that such heating pad when applied to a patient under heavy sedation or unconscious might seriously burn such patient as was done in the instant case; that at the time appellant sustained her injury, there were commonly used in Houston hospitals and hospitals in the Gulf coast area heating pads which would not burn a patient under any circumstances and that such heating pads were readily available on the market. There is no evidence that the hospital administration in furnishing for use the pad in question issued any instructions with respect to securely wrapping the same with a towel or other heavy cloth or securing the same in such way that the heating pad could not be turned on high heat when it was used on patients under heavy sedation or who were unconscious or sleeping. As to a hospital’s non-delegable duty to instruct employees, see Hotel Dieu v. Armendarez, Tex.Com.App.1919, 210 S.W. 518.

The question narrows down to whether a genuine issue of material fact was raised by appellant of negligence on the part of appellee in supplying for use by its personnel the type of heating pad used on the occasion and under the circumstances in question when there were at such time heating pads which could have been purchased, and which were used at some Houston hospitals and hospitals in the Gulf coast area, that were so constructed that they would not burn a patient under any circumstances. The evidence does not show who was responsible for turning the heating pad in question on high heat. It could have been the involuntary act of an unconscious or sleeping person or the negligent act of an employee. Regardless of this, it seems clear that the hospital had furnished for use on all patients a heating pad that was not reasonably safe when applied to an unconscious person or one under heavy sedation, without some prior affirmative action having been taken to cover or secure the pad in a manner that it could not burn such patient. It is our view that appellant raised a genuine issue of material fact as to negligence on the part of the hospital administration in furnishing such heating pad under the circumstances of this case when there were available on the market heating pads that were safe and would not burn a patient under any circumstances.

The fact that heating pads such as the one in question were used in some other hospitals and were generally recognized as standard equipment tends to show that the hospital performed its duty of care, but it is not conclusive as a matter of law. As' stated in 38 Tex.Jur.2d, p. 241, Master and Servant, Sec. 71; “That is to say, even if the evidence is uncontradicted that a similar appliance is in general use, there is still an issue for the jury as to whether in the furnishing of the appliance, the inefficiency of which was the cause of the injury, the employer exercised reasonable care.”

In French v. Southwestern Telegraph & Telephone Co., Tex.Civ.App., 162 S.W. 406, the court said:

“The question is: Was the use of the open hook such care and caution as an ordinarily prudent person would have used under the same circumstances ? The fact that appellee and other companies had habitually and customarily used the same does not, of itself, show that they had exercised ordinary care.”

The Supreme Court answered the certified question of the Court of Civil Appeals in said case, approving its holding. 110 Tex. 505, 221 S.W. 570. See also Cameron Compress Co. v. Whitington (Tex.Com. App.), 280 S.W. 527, in which the court held in substance that the habitual and customary use of a particular device will not of itself establish ordinary care although evidence of custom is admissible on the issue of negligence. See El Paso Electric Co. v. Gregston, Tex.Civ.App., 170 S.W.2d 515; Thompson v. Graham, Tex.Civ.App., 333 S.W.2d 663, writ, ref., n. r. e.; Wichita Valley Ry. Co. v. Durrett, Tex.Civ.App., 174 S.W.2d 329, writ, ref.; St. Louis Southwestern Ry. Co. of Texas v. Johnson, Tex. Com.App., 268 S.W. 926; Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., Tex. Com.App., 298 S.W. 554. See also Brown v. Lundell, 1961, 162 Tex. 84, 344 S.W.2d 863, in which the Supreme Court said:

“The ultimate issue was whether Brown was negligent in the way and manner in which he disposed of the salt water, while the questions as to what was the custom, whether Brown had complied therewith and whether the custom itself was negligent, are only evidentiary as to the negligence of the operator.”

The heating pad furnished by the hospital administration, although theretofore used by the hospital and by persons not in hospitals, was not the only heating pad available on the market. A safe type was readily available, and was used by some other hospitals, and could also be classified as standard equipment. Since the two kinds of pads were available, and one being safer than the other, it is for the jury to determine whether or not under the facts and circumstances of this case, the hospital should have furnished and used the safer ’ appliance, which would not have burned appellant.

In resolving all doubts as to the existence of a genuine issue of a material fact against the party moving for summary judgment, as we are required to do, we are of the opinion that the present record does not disclose a case for summary judgment. In view of our holding, it will not be necessary to consider appellant’s last point, in which she contends that appellee is not immune from liability for damages resulting from the negligence of its servants and employees because it had obtained a liability insurance policy covering such negligent acts and omissions. We merely call attention to the opinion of the Supreme Court in the case of Watkins v. Southcrest Baptist Church, handed down January 5, 1966, 399 S.W.2d 530, in which the Court held to the contrary of such contention.

Reversed and remanded.


author: WALTER, Justice.

text:
    Placid SOWA et al., Appellants, v. Willie SODOLAK, Appellee.
    No. 4019.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 3, 1965.
    Rehearing Denied Feb. 4, 1966.
    Dittert & Hruska, Dan Hruska, Bell-ville, Everett & Brasseaux, Charles B. Everett, Houston, Helm, Jones, McDermott & Pletcher, Raymond McDermott, Houston, for appellant.
    W. I. Hill, Bellville, Tynes, Turk, Micha-lek & Filer, Jack J. Turk, Houston, for appellee.
   WALTER, Justice.

Telesfor Sowa, individually and as next friend for his minor son Placid Sowa, filed suit against Willie Sodolak for damages on account of personal injuries sustained by the minor plaintiff on October 21, 1958, when he was struck by a pickup truck operated by the defendant. Based on the verdict, judgment was rendered that the plaintiffs take nothing. They have appealed.

The appellants contend that the court erred in not permitting them to thoroughly interrogate the witness Falvey Gooden to show that he was an adverse party at interest; that there was no evidence to warrant the submission of the unavoidable accident issue and that the verdict is against the great weight and preponderance of the evidence. The appellants also contend that appellee’s counsel committed reversible error in trying to offer into evidence a written statement of the minor appellant.

The jury found that the appellee, Willie Sodolak, did not fail to keep a proper lookout; that he was not driving at a greater rate of speed than an ordinary prudent person; that Sodolak’s failure to sound his horn was not negligence; that he did not fail to properly apply his brakes; that his failure to turn his car was not negligence and that the accident was the result of an unavoidable accident. The jury awarded Telesfor Sowa $602.00 for medical and hospital bills but awarded the minor plaintiff no damages.

Placid Sowa testified substantially as follows : On October 21, 1958, Willie Sodo-lak and I went to the pasture in his pickup truck to doctor a calf. We ran the calf for some time. When we thought the calf was tired, Willie told me to drive and he was going to rope the calf. He tried several times and failed. Willie started driving and I got on the running-board. After we caught up with the calf, Willie stopped the truck, I mean by that, he stopped the truck just like it was parked. I then got off the running-board to rope the calf. The calf went through the loop and I caught his hind legs. At the time I caught the calf he was about 25 feet from me and I was about 50 feet from the truck. I was sort of in front of the truck and to the right side of the truck. After I caught the calf I began to pull the rope in order to get closer to the calf. I caught the rope and just started walking toward the calf. At such time the rope was tight on the hind legs of the calf. Before Willie hit me with the truck the rope did not come off the calf. It did after he hit me.

Willie Sodolak testified substantially as follows: When Placid Sowa and I went to the pasture to doctor the calf he drove the pickup and I tried to rope the calf. I failed after three or four tries. After-wards, I drove the truck and Placid got on the running-board. Placid jumped off of the pickup. When he threw the rope and caught the calf he was about 10 or 15 feet from the truck. Sodolak also testified to the following:

“A. He started pulling the calf real hard and before he knew it the calf pulled his leg out from the loop and Placid is running backward right in front of my, right side of my pickup.”
“A. He pulled on the calf real hard, pulled on the rope real fast and the first I know, in a split second like that I heard something bang right against the side of my pickup.”

Placid’s version of the accident was that he had roped the calf and was moving toward the calf when he was suddenly struck from behind and run over by ap-pellee. Sodolak’s version of the incident was that Placid had roped the calf and the rope suddenly came off the leg of the calf which caused Placid to fall backward into the right front side of appellee’s pickup.

Falvey Gooden investigated the accident and took the minor appellant’s statement. The appellee sought to introduce this statement to impeach the testimony of the minor appellant by showing that he made contrary statements and told a different story about the way the accident occurred in his statement from the story he told on the witness stand. The appellee was never permitted to introduce the statement but he was permitted to show by Gooden that the minor appellant had made contrary statements. Gooden testified that Placid told him that the rope had come off of the hind legs of the calf before he came in contact with the truck; that the rope came off suddenly; that he was pulling backwards when the rope gave way; that he moved backwards after the rope came loose from the calf and that he hit the right front part of the truck.

Under their assignment that the court erred in not permitting them to thoroughly interrogate the witness Falvey Gooden to show that he was an adverse party at interest, they assert that they wanted to develop the fact that such witness was the agent for the insurance company that had written the public liability insurance covering the truck involved herein. No question was asked the witness either in or outside the presence of the jury relative to such matters.

In City of Kingsville v. Rivas, Tex.Civ.App., 355 S.W.2d 813 (no writ history), the court said:

“In order to show harmful error on the exclusion of evidence, the appellant must have in the record what the witness’ answer would have been. Rules 372 and 373, Texas Rules of Civil Procedure * * * ”.

Appellants recognize this rule but say it is not applicable here and rely upon Cunningham v. Austin & N. W. R. Co., 88 Tex. 534, 31 S.W. 629. We quote from appellants’ brief as follows:

“The Supreme Court of the State of Texas in Cunningham v. Austin and N. W. R. Company states: ‘The general rule is that, in order to entitle a party to a revision of the ruling of the lower Court in refusing to allow him to propound a question to a witness, he must show what answer he expected to elicit, in order that the Court may see that he has been deprived of legitimate evidence. This rule applied mainly to a case where a party is seeking to introduce original evidence, the nature of which he should be expected to know before he offers same, and it is not applicable to a case where a party is cross examining a witness of his adversary, with whose knowledge of the case he is not supposed to be familiar. In this class of cases, we think the better rule is that, if the question appears on its face to be calculated to elicit competent testimony, it is error to refuse the same, although counsel may not be able to state to the Court the answer intended or expected to be elicited’ ”.

The Cunningham case was decided in 1895. Rules 372 and 373 Texas Rules of Civil Procedure were promulgated subsequent to the date of this decision. Cases decided since the rules became effective do not follow the rule in the Cunningham case.

In Williams v. Saunders, Tex.Civ.App., 243 S.W.2d 596 (no writ history), the court said:

“However, the burden is upon the appellant to show that the court committed error. The record is also silent as to what the witness would have testified to if he had been permitted to express his opinion. We cannot assume that the exclusion of said testimony was error. Goldstein v. Susholtz, 46 Tex.Civ.App. 582, 105 S.W. 219 (writ ref.); Southwestern Telegraph & Telephone Co. v. Pearson, Tex.Civ.App., 137 S.W. 733 (writ ref.).”

Appellants rely on Aguilera v. Reynolds Well Service, Inc., Tex.Civ.App., 234 S.W. 2d 282 (writ ref.). The court said in Aguilera:

“We are unwilling to hold that an agent of an insurance company which is a real party at interest may take the stand as an apparently disinterested witness, give testimony damaging to the opposing party, and then be exempt from cross-examination designed to show his connection with the company.”

We cannot determine from the record before us whether Gooden was an agent for the insurance company or not. Neither can we ascertain from this record whether he wrote the policy on the truck involved. We cannot assume that he was a real party at interest. The burden was on the appellants to show these facts and they have failed to do so.

We find there was some evidence to warrant the submission of the unavoidable accident issue.

We have considered all the evidence and have concluded that the jury’s verdict is not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    WORTH TOOL & DIE COMPANY, Appellant, v. ATLANTIS ELECTRONICS CORPORATION, Appellee.
    No. 16643.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 17, 1965.
    Rehearing Denied Jan. 28, 1966.

      Harris & Ball, Arlington, for appellant.
    Andress, Woodgate, Richards & Condos and Shank, Irwin, Chester & Conant, Dallas, for appellee.
   BATEMAN, Justice.

The appellee Atlantis Electronics Corporation sued the appellant Worth Tool & Die Company for title and possession of certain personal property valued at $46,668.-84, and had the property seized under writ of sequestration. The answers of the jury to the special issues submitted to them were favorable to the appellant, but the court rendered judgment for appellee non obstante veredicto. By two points of error on appeal the appellant contends that there was a jury issue as to ownership of the property, which was resolved in its favor, and that it was entitled to judgment on the verdict.

The sole task of the trial court was to determine which of the parties owned the property, no other right of possession being claimed. At the time the suit was filed and the writ levied the property was in possession of appellant, which fact alone gives rise to the inference that appellant had a legal right to such possession. Possession has even been held to be prima facie evidence of ownership. 46 Tex.Jur. 2d, Property, § 8, p. 473; Maberry v. First Nat’l Bank of Littlefield, Tex.Civ. App., 351 S.W.2d 96, no wr. hist.; Bullard v. Oatman, Tex.Civ.App., 271 S.W. 422, no wr. hist.; Cook v. Kern, Tex.Civ.App., 277 S.W.2d 946, affirmed 155 Tex. 360, 287 S.W.2d 174.

The burden was therefore clearly upon appellee to prove its alleged ownership of the property. The court in rendering the judgment n. o. v. must have concluded that the evidence established appel-lee’s ownership as a matter of law.

In reviewing this conclusion it is our duty to consider the evidence in the light most favorable to appellant, disregarding all conflicts in the evidence, and indulging all reasonable intendments deducible from the evidence in favor of appellant; and to affirm the judgment we must find that there was no evidence of probative force to support the jury’s findings. 4 Tex.Jur.2d, Appeal and Error — Civil, § 841, p. 407; Zachry v. McKown, Tex.Civ.App., 326 S.W.2d 227, wr. ref. n. r. e.; Whaley v. Peat, Tex.Civ.App., 377 S.W.2d 855, wr. ref. n. r. e.; Wilderspin v. Bewley Mills, Inc., Tex.Civ.App., 298 S.W.2d 636, wr. ref. n. r. e.; Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W. 2d 626, wr. ref. n. r. e.

Appellee had a contract to furnish 3,083 trailers to the United States Government, and wrote a letter dated June 4, 1962 to appellant which stated in part: “This is to advise that at the present time it is the intention of Atlantis Electronics Corporation to utilize Worth Tool & Die Company as a supplier of the following items to be used in construction of 3,083 M105A2 TrailersAfter listing the different items to be supplied, with the unit price of each, the extensions thereof and a total price of $120,292.40, the letter continued: “The above listed items shall be supplied in accordance with and/or subject to all the appropriate drawings and specifications,” etc. (Italics ours.) Following appellee’s signature to the letter there appeared the following: “ACCEPTED AND AGREED TO this 4th day of June, 1962: WORTH TOOL & DIE COMPANY, By MILTON DRESKIN, Partner.” This letter was then attached to a document on a printed form entitled “PURCHASE ORDER,” which appears to have been “issued to” appellant and shows the “total amount” to be $120,292.40. The “purchase order” does not specifically refer to the letter attached thereto and does not set forth otherwise what is being purchased by appellee from appellant; and nowhere in either the letter or the purchase order is it specifically provided who shall furnish the materials or dies to be used by appellant in “supplying” the items mentioned in the letter, nor who shall own the materials and dies during the process of fabrication. It was shown that shortly after appellant began work under this arrangement its workmen'walked off the job and the work ceased, whereupon appellee brought this suit and had the sequestration levied on all the material and dies in the possession of appellant.

The only evidence offered by appellee as to ownership of the materials and dies was the testimony of Gene Ashley, Vice-President and General Manager of appellee, who had signed the above mentioned letter of June 4, 1962. He testified that appellee “was to” purchase the raw material and have it shipped into appellant’s plant and that “Atlantis was to pay for it.” When asked who the dies belonged to he said: “Well, the dies, upon completion, were to belong to Atlantis.” When asked who paid for them he said: “Atlantis. They were in the process of paying for them. I don’t think that they had paid for all of them at the time that the job was shut down,” but that Atlantis (appellee) was obligated to pay for them. There was no evidence as to who paid for the materials used.

After testifying that he had made the affidavit in sequestration and had furnished the list of materials, parts and dies attached thereto, he was asked if he knew that all of the items in that list belonged at that time to appellee; to which he replied: “The only way I could answer that was to assume that they had, by receiving the invoices on the materials; as a matter of fact, as far as me making the statement that I personally had checked those items off of that list, I did not.” Then followed these questions and answers:

“Q. Well, was steel, the raw materials here, the steel which had been purchased by Atlantis and shipped to Worth?
“A. Per invoice.
“Q. And were these parts and dies also parts and dies which had been fabricated for and charged to Atlantis ?
“A. Per invoice.”

He testified on cross-examination that the material was never shipped to Atlantis but was shipped to appellant. He further said that he was not testifying that appellee bought the material that the dies were made out of; that appellant made the dies and that not all of them were paid for. When asked if he knew that all of the material that was picked up by appellee was paid for by it he said: “No, I don’t know it. I assumed that it was. I don’t — I don’t know that it was.” He further testified that he did not buy any die material for appellant and that when the sequestration was levied they picked all of the material up and cleaned the place out. When asked by appellant’s attorney on cross-examination who owned the dies at the time they were being made he said: “Well, you owned them until they produced a part.” He further testified that he had knowledge of the fact that appellant “went on the open market and bought metal,” which he supposed was part of the metal that was seized under the sequestration. He further testified that appellant directed “almost 100 percent” what materials were purchased; that any of the steel that was ordered by him or anyone working for him was ordered for appellant.

On redirect examination he testified that he thought that appellant had purchased some of the dies from another supplier, being unable to handle all of the dies in its own plant, and that those particular dies had not been paid for, appellee having to pay for some of them. On recross examination he said that appellee had never actually paid for the dies as such, having only made payments on the contract; that the metal seized under the writ had been completely altered by appellant and exceeded by hundreds of times the cost of ⅛⅞ metal; and that at the time of the sequestration part of the metal seized had not been shipped to appellant but that appellant had to go out on the open market and buy it.

We think it obvious from this testimony that a jury question was raised as to ownership of at least some substantial part of the personal property in question. Appellee is inclined to discount the significance of these purchases by appellant, speaking of them as “picayune purchases on the local market,” but we find nothing in the record to indicate the size or extent or value of such purchases. And while both the “purchase order” and the letter attached thereto are silent as to ownership of the materials and dies during manufacture or fabrication, and prior to delivery to appellee of the finished products, the letter does speak of appellant as a “supplier” of the finished products and provides that such products shall be “supplied” by appellant, all of which would indicate an intention that appellant would be the owner of the materials, dies and tools utilized in making ready for delivery the items to be so “supplied.” At least, this is an inference or intendment reasonably deducible from the evidence which the jury was entitled to make and which we are enjoined to indulge in appellant’s favor in reviewing a judgment non obstante veredicto.

Therefore, we are forced to the conclusion that the court properly submitted the elements of ownership to the jury and had no authority to disregard the verdict in rendering judgment.

Therefore, we reverse the judgment and remand the cause with instructions to the trial court to render judgment for appellant on the verdict; this, of course, without prejudice to the right of appellee thereafter to take such action as may be available to it under the law looking to the vacating or reversal of such judgment on motion or appeal, as appellee may see fit. All costs heretofore incurred in the trial court and on this appeal are taxed against appellee.

Reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Sam GELFOND, Appellant, v. M. LEVIT, Appellee.
    No. 14445.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1966.

      R. Robert Lozana, San Antonio, for appellant.
    Collins B. Cook, Robert Caruth, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by M. Levit against Sam Gelfond, based upon an account in the sum of $1,781.11, less a payment in the sum of $700.00, leaving a balance due of $1,081.11. Gelfond answered denying the account.

The case was heard before the court without a jury and resulted in judgment in favor of Levit against Gelfond in the sum of $601.38, together with interest and court costs, and for the further sum of $200.00 as attorney’s fees. Gelfond has prosecuted this appeal.

There are no “points” set out in appellant’s brief, but appellant did file a motion for new trial in the trial court, based upon the following:

“1. The set off of interest, commissions and money due to Defendant as the balance due from a loan to Plaintiff is of approximately the amount alleged to be owing by defendant, by plaintiff, and is still due.
“2. That Plaintiff has a balance due to Defendant in the sum of $200.00 dollars, and that said balance was revived and remains unpaid, said revival being in writing by plaintiff.
“3. That there is evidence that was omitted due to the books that were being read from by Plaintiff, not coming within the scope of the shop book rule.”

If these contentions present anything for consideration by this Court, they are matters involving evidence which would require a study of the statement of facts, and there is no statement of facts. Appellant did not file a statement of facts, but on page IS of the transcript we find a statement signed by the trial judge in which he sets out some of the evidence heard by him. It is labeled a “STIPULATION OF FACTS” but does not show by whom the stipulation was made, and it is not signed by the parties, only by the trial judge. The judge does not certify that this statement contains all of the evidence introduced. The statement does not show anything that could be classified as a bill of exception. Appellant did not file any formal bills of exception.

The statement signed by the trial judge is not a judge’s statement of facts, such as is provided for by Rule 377, Texas Rules of Civil Procedure. It is not an agreed statement of facts, and is not a bill of exception.

The brief does not contain a single “point” on which appellant relies to reverse the judgment, and does not comply with the provisions of Rule 418, T.R.C.P., in any way.

In view of the fact that there was no statement of facts filed, no bills of exception, formal or otherwise, and no “points” in appellant’s brief, we can do nothing but affirm the judgment of the trial court. Koonce v. City of Mesquite, Tex.Civ.App., 382 S.W.2d 309; Burnett v. Meletio, Tex.Civ.App., 351 S.W.2d 912; Nuse v. Kormeier, Tex.Civ.App., 351 S.W. 2d 382; Armstrong v. West Tex Rig Co., Tex.Civ.App., 339 S.W.2d 69.

In the absence of a statement of facts, the reviewing court is required to assume that there was evidence to support the trial court’s finding, McKnight v. Renfro, Tex.Civ.App., 371 S.W.2d 740, and every presumption must be indulged in favor of the trial court’s findings and judgment. Platzer v. Platzer, Tex.Civ.App., 383 S.W.2d 260.

The judgment is affirmed.