text:
    F. M. CHANCEY, Appellant v. Merlin O. WILSON et al., Appellees.
    No. 7347.
    Court of Civil Appeals of Texas. Amarillo.
    April 20, 1964.

      Thomas J. Griffith, Jr., Lubbock, for appellant.
    Dell Barber and Perry Barber, Colorado City, for appellees.
   DENTON, Chief Justice.

F. M. Chancey, plaintiff below, sought the cancellation of a five-year written lease on 1920 acres of grazing land in Bailey County, Texas. Plaintiff brought this suit against Merlin O. Wilson, lessee under Nora Harding, the former land owner, and Bill Bradley and Dick Brantley, sublessees of Wilson. The lease was executed by Miss Harding and Wilson in March, 1961, and on May 8, 1961, Miss Harding deeded the land to Chancey. Trial was before a jury, and in conformity with the jury verdict the trial court entered judgment declaring the lease in full force and effect; and awarded the defendant and cross-plaintiff Wilson $328.09 actual damages for the lost sale of sand and gravel from the premises and $300.00 exemplary damages.

The original lease contained the provision: “All revenue from sand and gravel hauling @ $1.00 per lid. is to be paid to Mr. Wilson as long as he leases the land.” Chancey purchased the property subject to the lease and had actual knowledge of it. There was evidence that the sand and gravel from the premises was purchased largely by the county commissioners of Bailey County. On September IS, 1962, and December 7, 1962, appellant’s attorney wrote letters to the county judge of Bailey County advising that official of Mr. Chancey’s ownership of the property and asserting that Mr. Chancey had not authorized the removal of sand from the property. The letters indicated authorization must first be obtained from Chancey before sand could be taken. The letter of December 7 further demanded the payment of twenty-five cents per yard royalty for all sand taken. These letters formed the basis of Wilson’s cross-action for actual and exemplary damages. The jury found Mr. Chancey was prompted by malice toward Mr. Wilson at the time he caused the letters to be delivered, and that such letters caused Mr. Wilson to suffer a pecuniary loss.

Appellees challenge appellant’s first two points of error on the ground that they are mere abstractions and are too general in violation of briefing rules. Rule 418, Texas Rules of Civil Procedure. Although appellees’ challenge has some merit, we overrule such contention. In accordance with the intent of the rules the Court will indulge a liberal interpretation of the rules in favor of the sufficiency of appellant’s brief and give effect to it since we can ascertain the issues to be determined by the statements and arguments thereunder.

Appellant’s first point of error concerns the alleged error in awarding the actual and exemplary damages. The two letters in question were written by appellant’s attorney. There are no pleadings or evidence to support the conclusion such letters were written with the prior knowledge or consent of appellant. Mr. Chancey’s testimony could be interpreted in such a way that he was in agreement with the content of the letters, but this is not sufficient to support the award of punative damages. It is a well-settled general rule that in order to render a principal liable in exemplary damages for the act of his agent, the agent’s act must have been previously authorized by the principal or subsequently ratified. Sorenson Co. v. Bell, (Tex.Civ.App.), 326 S.W.2d 271, (Refused, NRE); Wright v. E-Z Finance Co., (Tex.Civ.App.), 267 S.W.2d 602, (Refused, NRE); Valencia v. Western Compress & Storage Co., (Tex.Civ.App.), 238 S.W.2d 271, (Refused, NRE); Strauss v. Dundon, (Tex.Civ.App.), 27 S.W. 503. We conclude there are no pleadings or evidence to support the jury finding awarding exemplary damages against appellant. Nor is there any evidence of probative force to establish the pecuniary loss suffered by Mr. Wilson from the alleged lost sale of sand and gravel by reason of the letters. The only testimony offered in this respect was that of a county commissioner of Bailey County. He testified-be stopped buying sand from the premises after the second letter was received, hut he could not say how much he would have purchased had the letter not been received. Appellant’s first point of error is sustained.

Complaint is also made of the refusal of the trial court to admit into evidence two letters, to-wit: A letter written by Miss Harding’s attorney to appellant’s attorney, and a letter by appellant’s attorneys addressed to Miss Harding. These letters are obviously hearsay as to appellees and the trial court was correct in sustaining appellee’s objection on this ground.

Appellant’s third and fourth points of error contend the trial court erred in overruling appellant’s motion for judgment non obstante veredicto on the ground the lessees made no legal tender of rentals due and owing in March, 1963; and the trial court’s error in amending its judgment by allowing appellees to substitute cash for the checks previously tendered into court. It is undisputed Bradley and Brantley had mailed the checks in the amount of $1,500.00 each tp Chancey prior to the due date. These checks were returned by Chancey’s attorney some thirty days after their receipt. As the letter accompanying the returned checks was not introduced into evidence, we do not know its contents. However, from the record it is apparent the objection that the tender of rentals was not legal tender was made for the first time in appellant’s motion for judgment non obstante veredicto. Appellant’s pleadings did not raise this issue and no special issues were submitted on this contention. By pleadings and the evidence appellant contended the checks were refused because Mr. Wilson, the original lessee, did not pay such rental; that the sublessees grazed more than 150 cattle on the land in violation of the terms of the lease. When a tender is refused for reasons other than the medium tendered, one may not later, as in this case, complain of the medium of tender. Gulf Pipeline Co. v. Nearen, 155 Tex. 50, 138 S.W.2d 1065; Cockrum v. Underwood, (Tex.Civ.App.), 301 S.W.2d 953.

The trial court entered its judgment on May 3, 1963. On May 24 the.court heard appellant’s motion for new trial and on June 11 the court overruled said motion and on the same day amended its judgment of May 3 which read in part:

“It further appearing to the Court that defendants, Dick Brantley and Bill Bradley, have tendered into this Court their two checks totaling the sum of $3,000.00 in payment for the 1963 lease rental due March 10, 1963, and the Clerk of such Court is directed to deliver such checks to the plaintiff, F. M. Chancey, upon his request and the execution of proper receipt therefor.”

to read:

“It further appearing to the Court that the defendants Dick Brantley and Bill Bradley, have exchanged $1500.00 in cash for their checks heretofore presented in this cause in payment for the 1963 lease rental due March 10, 1963; and the Clerk of such Court is directed to deliver such $3000.00 in money to the plaintiff, F. M. Chancey, jupón his request and execution of proper receipt therefore.”

The court retains for a limited time an inherent power to set aside, modify or amend the court’s judgment without the necessity of a formal, written or oral motion by a party. Payton v. Hurst Hospital & Clinic, (Tex.Civ.App.), 318 S.W.2d 726, (Refused, NRE); Rules 317 and 330, Texas Rules of Civil Procedure; McDonald Texas Civil Practice, Section 1803. The decretal portion of the May 3 judgment and the amended judgment are the same. In view of our holding that the checks, under the circumstances, were proper tender, we are of the opinion the amendment was not erroneous.

The copy of the lease retained by Wilson and the copy turned over to Mr. Chancey by Miss Harding differed in that the phrase “he will not assign this lease or sublet any part of the farm without the written consent of the landlord” was deleted in the Wilson copy. Appellant’s original petition alleged this clause appeared in the lease. Appellees’ original answer contained the following allegation:

“For further answer herein, defendants say that the lease referred to in plaintiff’s petition is in full force and effect, and that it was definitely understood between the parties at the time of the execution of such lease that the said Merlin O. Wilson would have the right to sub-let such lands for the purpose of grazing cattle thereon or take in partners for such purpose as long as he retained possession under such lease. And, it was definitely understood between the parties that Merlin O. Wilson did not have any cattle and his sole purpose for acquiring such land was in order to sell sand and gravel therefrom, and that other persons would graze cattle thereon 'under the terms of such lease.”

It is appellant’s contention that appellees’ allegations constitute a judicial admission. We are unable to agree. Appellees’ whole defense depended upon the validity of the lease. After acknowledging the validity of the lease, the appellees pleaded the intention of the parties was to grant the rights to Wilson to sublet the premises. Letters from Miss Harding to Wilson corroborate this pleading. It is to be further noted Chancey accepted and deposited a check from Tom Neff, Wilson’s first sublessee, for the annual rental due in March, 1962. Appellant’s fifth point of error is overruled.

Appellant’s sixth point of error complains of the trial court’s granting appellee Bill Bradley “title and possession” of the premises along with Dick Brantley. Appellant’s contention is based on the fact Bradley was not a party to the written sublease between Wilson and Brántley. Appellant’s pleadings do not support this contention. We are also of the opinion there was evidence to support the jury finding that appellant waived his right, if any he had, to complain of the subleasing by Wilson to Bradley and Brantley. The latter two sublessees were partners in the cattle venture and there is evidence Chancey had knowledge of this fact. It is undisputed both Bradley and Brantley timely tendered their checks for their respective share of the rentals. We find no reversible error in the judgment’s recital: “That the defendants, Dick Brantley and Bill Bradley, have their title and possession of such premises as sublessees of Merlin O. Wilson — .”

The judgment of the trial court allowing recovery by Merlin O. Wilson of $328.09. actual damages and $300.00 exemplary damages is reversed and judgment is here rendered denying any recovery of damages; and as so reformed, the judgment of the trial court is affirmed.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Russell LOVELL et al., Appellants, v. Mrs. Jessie M. STANFORD et al., Appellees.
    No. 11156.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1964.
    Rehearing Denied April 15, 1964.

      Talbert, Giessel, Cutherell & Barnett, Don Weitinger, Hicks, Dollahon & Wohlt, Houston, for appellants.

      Hill, Brown, Kronzer, Abraham, Watkins & Steely, Freeman Bullock, Houston, for appellees.
   HUGHES, Justice.

This suit is for damages for personal injuries sustained by Mrs. Jessie Stanford and Mrs. Ida Armstrong as the result of a collision involving three passenger automobiles on the Gulf Freeway in Harris County on April 4, 1960. Mrs. Stanford was driving the lead car and Mrs. Armstrong was riding with her as a passenger and occupied the right rear seat. The first following car was operated by appellant Gilbert M. Marcus. The third car in line was operated by appellant Russell Lovell. Appellees did not plead any specific acts of negligence but the evidence discloses that the primary acts of negligence are that appellants failed to keep a proper lookout and that they were following the preceding car too closely. The Stanford car stopped, the Marcus car lightly hit the Stanford car and the Lovell car hit the Marcus car, which was propelled, with considerable force, into the Stanford car. Trial was to a jury, however, the Court submitted damage issues only to the jury and refused to submit various issues requested by appellants. Judgment was entered on the jury verdict for the amount of damages found.

Appellants have filed separate briefs. Their first two points are identical. They are that the Court erred in holding them negligent as a matter of law and in resolving the proximate cause requisite against them as a matter of law. We will make a factual or evidentiary statement applicable to both appellants.

The only witnesses to these collisions who testified are parties to this suit, and except for the interest of such witnesses, most of the evidence is undisputed. We will particularly note the areas of dispute.

The collisions occurred about 5 p. m. The weather was clear and sunny. There was no need for cars to use lights. Mrs. Stanford was driving on the Gulf Freeway towards Houston. Mrs. Ida Armstrong rode with her as a passenger on the right rear seat, and were the car’s only occupants. The Gulf Freeway, at the situs of the wreck, consisted of six traffic lanes, three each way being divided by an esplanade. We will now recite the relevant facts as testified to by Mrs. Stanford.

The car Mrs. Stanford was driving was in good mechanical condition, lights, brakes, etc. She was driving in the outside or right hand lane, preparing to exit from the Freeway. She was required to stop because of traffic in this lane. Such traffic had become congested because of a wreck off the Freeway on the lateral road. She came to a slow gradual stop and gave notice of her intention to stop by hand signal and by activating her stop lights by pressure on the brakes. She stopped about six feet behind the stopped car preceding her. A few seconds after stopping, the Stanford car was struck by the following car (Marcus). A few seconds later the Stanford car was struck again by the Marcus car which impact was caused by the Marcus car being struck by the Lovell car. All three cars were in the same right hand lane. The second impact sustained by the Stanford car was greater than the first impact.

Mrs. Armstrong testified that she agreed with Mrs. Stanford as to the manner in which these collisions occurred.

We will now recite the version of the accident as testified to by Mr. Marcus.

Mr. Marcus was the only occupant of his car. The car was in good mechanical condition. The traffic on the Gulf Freeway was congested. He was driving, as was the traffic in general, between thirty-five and forty-five miles an hour. Mr. Marcus noticed that the traffic in the outside lane in which he was traveling was “stacking up” and he- considered changing to the center lane. We quote his testimony:'

“Q And you noticed that the middle lane might be clear for you to avoid this stacking up?
A I looked through my rear view mirror momentarily.
Q The facts are you saw the traffic up ahead of you that was slowing down and stacking up, and you saw Mrs. Stanford beginning to slow down ?
A I don’t remember seeing her slow down, but I noticed the traffic slowing down up ahead of her.
Q And that is why you looked m your rear view mirror in an attempt to pass around her ?
A Yes, sir.
Q It was your intent when you saw this traffic stacking up ahead of you in the right-hand lane, to try to avoid it by getting in the lane to your left ?
A Yes, sir.
Q As you looked in your rear view mirror was the traffic clear behind you?
A I don’t remember what I saw.
Q You did attempt to turn to your left?
A No, sir, I don’t believe I started to turn.
Q But after you looked in your rear view mirror to see if the traffic was clear, that is when you saw her stop ?
A I looked back and I was gaining quickly upon her.
Q And then you put on your brakes ?
A Yes, sir.
Q About how fast were you traveling when you applied your brakes?
A When I applied my brakes, I believe I was in the vicinity of 35 miles an hour.
Q There is testimony here that your car made some contact with the Stanford car before you were struck from the rear, do you agree to that?
A Yes, sir.
Q You did make some contact with the Stanford car and some time later you were struck from the rear?
Yes, sir. c
Do you agree there were two separate impacts? a
Yes, sir. <
And in your opinion the second impact was greater than the first impact ? a
I believe it was. >
* * *
Mr. Marcus, there was nothing to obstruct your vision as you drove along the freeway, was there? a
No, sir. >
There were no cars moving in and out between you and the line of traffic Mrs. Stanford was in immediately before the collision? iO
No, sir, not immediately.
Q There wasn’t any sun there m your eyes as you were proceeding toward town?
A If there was, it was not bothering my driving.
Q What distance did you maintain between the front of your vehicle and the back on her [Stanford] vehicle as you were going down the roadway at 40 miles an hour?
A I would say we had between 50 and 60 feet.
Q As you were traveling at such a distance and at such a speed, under these very conditions, you observed the traffic ahead of Mrs. Stanford slowing, and you glanced in your rear view mirror to see if you could go to the left-hand lane?
A Yes, sir.
Q Approximately how long did that take you?
A A quarter of a second.
Q And then turning your eyes back would be about the same?
A The whole action could be taken in less than three-quarters of a second.
Q And then when you glanced back to the traffic in front of you, that is when you observed for the first time that the vehicle immediately ahead of- you was slowing ?
A Yes, sir.
Q Having glanced away from it and then glanced back at it, did that make it appear to you as if that vehicle was slowing rather rapidly at that time?
A Yes, sir.
Q You had not observed it slowing before you glanced away, and when you glanced back, that gave you the illusion of it slowing rather at a rapid rate?
A I don’t think it was an illusion, my impression was that the vehicle was slowing down at a rapid rate.
Q Let’s say that looking away from the vehicle and then looking back, took no more than three-quarters of a second, and you were going 40 miles an hour, and I am using low figures, during that three-quarters of a second your vehicle would have traveled some 70 feet forward ?
It is actually less than that, it is between SO and 60 feet. >
You were following her at a distance of about 40 feet?. ot
Yes, sir. >
When realized after looking back at the vehicle ahead of you that it was coming to an abrupt stop, did you know you were called upon to act or do something? to
Yes, sir. >
Did you make an immediate application of your brakes? ¡o
Yes, sir. >
A hard brake application? o
Yes, sir. >
Would it be fair to characterize it as an emergency, panic application of the brakes? o
Yes, sir. >
And when you hit your brakes for that emergency stop, it did slow your vehicle very rapidly? ¡o
Yes, sir.
And it did cause the brakes on your vehicle to go on? a
Yes, sir. <
Before looking away from the vehicle ahead of you and then looking back at it three-quarters of a second later, had you ever observed that vehicle ahead of you was giving you a hand signal or other signal that it was stopping? a
No, sir.
Q Did the brake lights go on?
A No, sir.
Q Had you observed them, you would have made a more slower and gradual stop?
A Yes, sir.
Q So your failure to see that hand signal or brake signal before you looked away from the roadway, would account for your having to make an emergency stop when you did observe it ?
A Yes, sir.
Q You are telling us that the average time for a person upon observing the danger until something is done is something like a second?
A Yes, sir.
Q Of course, the beginning of that time for you, perhaps, would be when you looked back at the vehicle and observed it was slowing at that time?
A Yes, sir.
Q And one second later would be when your brakes actually took hold?
A For the average person.
Q And that would be also the time when your brake lights came on on the back of your vehicle?
A Yes, sir.
Q It would come on at the end of that one second?
A Yes, sir.
Q So the driver behind you would have one second less to stop to avoid an accident than you would have?
A Yes, sir.
Q And that one second is significant, because it would give him something like 50 or 60 feet less than you had?
A Yes, sir.
Q I take it, when you made this emergency application of your brakes, you did so as rapidly as you could ?
A Yes, sir.
* * *
Q At the time of the impact between your automobile and Mrs. Stanford’s automobile, the first contact, could you estimate whether or not you had brought your car to a complete stop, or, what are the facts as to how fast you were going at that time ?
A Mrs. Stanford and I were at a complete stop with the cars bumper to bumper.
Q And were you in that position when the rear of your car was struck by Mr. Lovell ?
A Yes, sir.
Q About how long a space of time would you estimate transpired between the time you made the original contact with Mrs. Stanford’s car before your car was hit from the rear and driven into her car the second time?
A Less than three seconds.”

Mr. Lovell testified that his car was in good working order; that he was driving about thirty-five miles an hour; that he followed the preceding [Marcus] car at an interval of about three car lengths. He had previously testified by deposition that this distance was about two car lengths or about 35 feet. We now quote from his testimony:

“Q What was the first knowledge you had that the Marcus car was stopping ?
A When his brake lights went on and when the first impact took place.
Q Speaking of the first impact, this is the impact you referred to, the impact between the Marcus car and the Stanford car?
A Yes, sir.
Q Did you hear that impact?
A I heard the screeching of tires and the impact.
Q The actual physical sound of the impact ?
A Yes, sir.
Q I am asking you now, Mr. Lovell, this screeching of the brakes and you heard the impact, were they about the same time ?
A I would say they were simultaneously.
* íjí *
Q When you saw Mr. Marcus’ tail light go on, what did you do?
A I threw on my brakes.
■Q Immediately ?
A Yes, sir.
* * *
•Q Did the front of your car strike the rear of the Marcus car?
A Yes, sir.
'Q That was a Chrysler ?
A Yes, sir.
Q Was the Chrysler then knocked into the Stanford vehicle?
A No, sir.
X * *
■Q About how fast were you going when you applied your brakes?
A I believe I was going between 30 and 40 miles an hour, I will say 35 probably.
* ‡ *
Q And with regards to the Marcus vehicle, was it stopped or moving at the time you struck it?
A When I struck it?
Q Yes.
A Let me think. I believe it was moving slightly. I believe the first impact, when he hit the car in front of him it had slowed him down to almost a stop.
* * *
Q I believe it is your estimate you were traveling 30 to 40 miles an hour, perhaps 35 miles an hour, when you made application of your brakes ?
A That is right.
Q How far do you think you were behind Mr. Marcus’ car when you made application of your brakes?
A By the time he made his application, I wasn’t very far.
Q About how far do you estimate you were when you made your application ?
A Probably 10 feet.”

As will be noted, the principal conflicts in the testimony of these witnesses are (a) Mrs. Stanford said she came to a slow gradual stop after giving hand and light signals, whereas, Mr. Marcus said he saw no signals and her stop was “rapid” (b) Mr. Lovell testified that the Marcus car was moving when he struck it and that it, the Marcus car, was not propelled into the Stanford car by such action, whereas, both Mrs. Stanford and Mr. Marcus testified to the contrary.

Appellants cite us to cases such as Rankin v. Nash-Texas Company, 129 Tex. 396, 105 S.W.2d 195, for the holding that, “The occurrence of an accident, or a collision, is not of itself evidence of negligence.” This, of course, means that a collision in a void, divorced of surrounding circumstances, is not evidence of negligence. It could not mean that a collision occurring between cars traveling in opposite directions on a one way street is no evidence that the car traveling in the wrong direction was not negligent. Negligence and proximate cause may be inferred from the circumstances. Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621, Fort Worth Civ.App., no writ. 7 Tex.Jur.2d, Automobiles, Sec. 149, p. 495. The circumstances attending a collision may be so strong that, unexplained, the inference of negligence and proximate cause to be drawn from them is one about which reasonable minds could not differ and, hence, is one of law. See Hoey v. Solt, 236 S.W.2d 244, San Antonio Civ.App., no writ. In this case the Court, speaking through now Supreme Court Justice Norvell, stated:

“Solt also testified that there wa's nothing ahead of him to prevent his seeing the Hoey car, which was stopped in front of him waiting on the light; that the car of the third driver on his right hand had proceeded along in a northerly direction to the right and approximately parallel to his car for a block or block and a half; that he could have slowed down so as to let this car get ahead of him, had he so desired, but that he drove along looking . at this other car and ran into the back of the Hoey automobile.
“It is accurately stated in defendant’s brief that ‘the plaintiffs take the position that since the evidence was undisputed to the effect that the defendant ran “smack-dab” into the back end of plaintiff’s car at a time when it was stopped at a stop signal, that the defendant is negligent as a matter of law, and further that such negligence was the proximate cause as a matter of law. This contention by them is made in accordance with a general rule of “lookout” which they cite, and which they substantiate with authorities, to the effect that the failure to maintain a lookout for vehicles ahead is negligence per ,se, and that a collision with a vehicle standing in open view ahead is as a matter of law proximately caused by such negligence. We have no dispute with this general rule; but such rule, under the 'authorities, must be qualified with the proviso: “provided the acting party’s attention has not been diverted therefrom by circumstances which would distract the attention of an ordinarily prudent person under the same situation,”
“The actual question now before this Court, and the question which was before the jury and the trial court, is whether a person of ordinary prudence under'the same or similar circumstances to that of the defendant would have 'looked ■ at the car crowding him from the right, and while so doing would have failed tq observe the car in front of him.’
“[1] If reasonable minds can differ as to the inferences and conclusions to be . drawn from the undisputed evidence, then the case is one for the jury. If reasonable minds can not differ, then an issue of law is presented.
“[2] It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition. Defendant contends here that his conduct was excusable by reason of the actions of the third driver.
í(í i{c í|C Jji
“The evidence in this case suggests nothing in the way of a sudden emergency. The car of the third driver travelled along to the defendant’s right for at least one block. Automobile drivers on city streets must for their own safety necessarily notice cars which •drive alongside them, but this circutn- ■ stance cannot excuse them from failing to heed traffic lights and see vehicles immediately ahead of them.”

The Court reversed and rendered judgment for the plaintiff even though the jury had failed to find defendant negligent.

See also Fister v. Jackson, Tex.Civ.App., 276 S.W.2d 910, by the same Court. No writ.

The facts here, in our opinion, parallel those in Hoey with sufficient similarity to make that decision applicable here.

The negligence of Mr. Lovell is transparent. It is not clouded by any fact or circumstance. Mr. Lovell was simply following the Marcus car too closely for the speed at which he was traveling. He was driving at 35 miles-per hour' about three car lengths behind the Marcus car. He saw the brake lights of the Marcus car go on. He applied his brakes when about 10 feet from such car. He struck the stopped Marcus car when traveling about 15 miles per hour. Mr. Lovell stated, “If I had had about three more feet to go, I wouldn’t even have hit Mr. Marcus.” The reason, and the only reason, Mr. Lovell did not have three more feet to go is that he was following the Marcus car too closely. There simply is no other explanation for the Lovell car striking the Marcus car. The road and weather conditions and mechanical conditions of the car were perfect. There were no distractions present. The reaction of Mr. Lovell was normal when the necessity for stopping appeared. He was just unable to stop his car within the distance of 10 feet which he had allowed himself. We agree with the Trial Court that Mr. Lovell was negligent as a matter of law.

The situation as to Mr. Marcus is also devoid of extenuating circumstances. The evidence of his negligence is stronger, if possible, than the evidence proving negligence of Mr. Lovell. Mr. Marcus saw the traffic in front of him slowing down. He was alerted by this fact to the inconvenience it would cause him and thought about changing lanes, but he was apparently not alerted to the danger it presented. At any rate he ignored this danger, thus necessitating a sudden stop.

We do not consider the testimony of Mr. Marcus that the deceleration of the Stanford was “rapid” or that he did not see hand or light signals from the Stanford car to be significant. There was nothing to prevent Mr. Marcus seeing the Stanford car with or without signals emanating from it. The car was there big as life. He could not prudently ignore its presence. Mr. Marcus did not keep a proper lookout or he would have seen the Stanford car slowing down as well as the traffic in front of the Stanford car slowing down. It is not reasonable that he should have observed the slowing of distant traffic, and not have observed similar motion by the car immediately in front of him. When a single line of traffic slows its speed, all cars in line must correspondingly diminish their speed. Those which do not, collide with the car in front. The Marcus car was out of step. Its driver was, in our opinion, guilty of negligence as a matter of law in following too closely and in failing to keep a proper lookout.

On the issue of proximate cause, we are of the opinion that the negligence of appellants was, as a matter of law, the proximate cause of the injuries, and resultant damages, sustained by appellees.

Mr. Lovell testified: “Is it your testimony that when you hit Mr. Marcus’ car you didn’t drive it into the Stanford car. A. No sir, I don’t think so.”

This testimony is in flat contradiction to the testimony of the other three eye witnesses who were in a better position to know the truth than Mr. Lovell who did not take time to go to the front of the Marcus car or to inquire of the occupants of the Stanford car concerning their injuries. He, Mr. Lovell, left the scene, unidentified and unconcerned about the consequences of his negligence. His, “I don’t think so” is a mere scintilla of evidence insufficient to raise an issue on this question.

The record discloses that the impact between the Marcus and Stanford cars caused by the Lovell car hitting the Marcus car was much greater than the first impact between the Marcus and Stanford cars and that the second impact was responsible for the principal injuries sustained by Mrs. Stanford and Mrs. Armstrong. The damages arising from these injuries were adjudged against both appellants, jointly and severally; they were not apportioned. Appellants complain that this is improper. We disagree. The rule applicable is stated in Texas Power and Light Co. v. Stone, 84 S.W.2d 738, Eastland Civ.App., writ ref., as follows:

“ ‘When an injury occurs through the concurrent negligence of two persons, and would not have happened in the absence of either, the negligence of both is the proximate cause of the accident, and both are answerable.’ Id. § 16, p. 129.
jK >}c % % ‡ sfc
‘ “If an accident occurs from two causes, both due to the negligence of different persons, but together the efficient cause, then all the persons whose acts contributed to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.” ’ 30 Tex.Jur. § 105, p. 776.”

See 40 Tex.Jur.2d, Negligence Secs. 23 and 50, pages 481 and 521.

Mr. Marcus testified, supra, that his conduct in looking back consumed time which could have been utilized in stopping his car and thus have avoided a sudden stop. He also testified that this sudden stop deprived the car behind him, the Lovell' car, of stopping time and, at the rate the traffic was moving, about 50 or 60 feet of stopping space.

This evidence is binding on Mr. Marcus and clearly shows that his negligence and the negligence of Mr. Lovell concurred and contributed to the accident and the resultant injuries. The negligence of both was the proximate cause of the accident.

Mr. Marcus has points complaining of the refusal of the Trial Court to submit several requested special issues. No motion for new trial was filed by Mr. Marcus and these matters were not mentioned in his motion for judgment. They are not properly before us. Rule 324, Texas Rules of Civil Procedure, Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

The judgment of the Trial Court is affirmed.

Affirmed.

On Motion for Rehearing.

Mr. Lovell complains that we “overlooked” four denials in his testimony that his car by hitting the Marcus car propelled it into appellees’ car found on pages 172, 173, 176, 177, 187 and 188 of the statement of facts.

There is no such denial on page 172. The denial on page 173 is copied in our opinion. On pages 176 and 177 Mr. Lovell stated that his previous testimony was correctly understood and that he reached the “conclusion that the Chrysler automobile did not strike the automobile being driven by Mrs. Stanford after” his car struck the Marcus car because “I had a ring side seat to that show.”

There is no denial on page 187.

The denial on page 188 is quoted in the opinion.

The motions of both appellants for rehearing are overruled.

Motion overruled.

      . As mil be noticed, infra, Lovell disputes the last factual statement


author: CHAPMAN, Justice.

text:
    AMARILLO COCA-COLA BOTTLING CO., Inc., Appellant, v. Pricilla PRICE, Appellee.
    No. 7333.
    Court of Civil Appeals of Texas. Amarillo.
    March 16, 1964.
    Rehearing Denied April 20, 1964.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Charles L. Ballman, Borger, for appellee.
   CHAPMAN, Justice.

This is a venue case.

Suit was filed in Hutchinson County by Pricilla Price against Amarillo Coca-Cola Bottling Co., Inc. and Buddy’s Super Markets for injuries sustained when a Coca-Cola bottle sitting on the floor next to the Coca-Cola display exploded. Miss Price was shopping in the store at the time and was about 2 or 2^4 feet from the bottle as it exploded. She had not touched it herself. The bottle at the time was not in a carton but was sitting on the floor up against the shelf.

The beverage company filed a plea of privilege to be sued in Potter County where it is domiciled and Miss Price controverted, pleading Subdivision 23 of Article 1995 as an exception to the privilege claimed.

Specific grounds of negligence were not alleged against either of the defendants but appellee relied solely upon the doctrine of res ipsa loquitur. Buddy’s Super Markets filed no answer and a default interlocutory judgment was taken against them. Appeal is perfected only by the beverage company.

Testimony shows the beverage company serviced the grocery store twice a week except on special occasions; that it last serviced the store on November 5, 1962, before the injury to appellee on November 6, 1962, at 3 p. m.; that bottles on the floor loose result from customers “splitting” cartons of Coca-Cola with other types of beverage and placing them on the floor instead of placing them back in the cartons.

It is settled law under Subdivision 23 of Article 1995 Vernon’s Ann.Tex.Civ. St. that in order to maintain venue in the county where the cause of action arose, if outside the county of defendant’s residence, the claimant is required to prove a cause of action against defendant which arose in whole or in part in the county where suit was filed. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (Com.App. opinion adopted); Southland Beauty Shops, Inc. v. Foreman, Tex.Civ.App., 319 S.W.2d 737 (writ dismissed); Zale Jewelry Co. v. Jarman, Tex.Civ.App., 227 S.W.2d 857 (writ dismissed); Porter v. United Motels, Inc., Tex.Civ.App., 315 S.W.2d 340 (N.W.H.).

We must then look to the facts and the applicable law to see if a cause of action was proved under the doctrine of res ipsa loquitur.

The testimony shows that the food store designated a portion of the space in the store for different types of soft drinks; that when the deliveryman takes in a new supply of Coca-Cola he “ * * * straightens all the loose bottles up and picks them up and puts them in the rack and sees how many he needs to bring in, and brings in enough to fill it up. Picks up the empties and then leaves.” The testimony also shows that the Coca-Cola is sold to the store on a charge account with the store paying the company at designated intervals.

It is also settled law in Texas that a person injured by an explosion of a Coca-Cola bottle is entitled to rely on the res ipsa loquitur doctrine even though the bottle has left the bottler’s control. Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008.

However, “ * * * it is necessary for the plaintiff to establish by a preponderance of the evidence that the instrumentality (in this case a bottle) was not damaged by some intervening force between the time of its last handling by the defendant and the final occurrence which causes the damage.” Hankins v. Coca Cola Bottling Co., supra.

“His [her] burden was to establish this fact, like any other fact, by a preponderance of the evidence, and not beyond a peradventure.” Benkendorfer v. Garrett, Tex.Civ.App., 143 S.W.2d 1020 (judgment dismissed, correct). ¡

In holding the evidence sufficient to invoke the res ipsa loquitur doctrine in the case last cited the court noted that the bottle which exploded remained in the case in which it was delivered from the time of delivery until the explosion occurred and that it was not removed or molested by anyone except that the case in which the bottle was resting was moved to the top of a case of Dr. Pepper on the day after delivery.

We believe it is important also to note that the Supreme Court in the Hankins case approved the Benkendorfer case because the evidence had affirmatively shown no mishandling of the bottle from the time of delivery by the bottler until the explosion occurred, the court saying:

“In the case of Benkendorfer v. Garrett * * * relied upon by plaintiff, the findings of fact by the trial court reveal a different factual background than that presented in this case. In that case, the court found from ‘clear and convincing evidence’ that the bottle which exploded remained with several other bottles of the beverage in the case in which it was delivered to plaintiff from the time of such delivery until the explosion occurred, and that said bottle was not moved or molested by any one, save and except that the case in which the bottle was resting was shifted to the top of a case of Dr. Pepper by a servant on the day after the delivery thereof. In view of said findings of fact, the Court of Civil Appeals in that case correctly held that the plaintiff was entitled to recover under the doctrine of res ipsa loquitur.”

No such evidence is before us in the instant case. The bottle obviously had been handled after delivery or it would not have been on the floor. Surely, plaintiff could have proved by the clerks that no bottles of Coca-Cola had been in the shopping aisles, run over by shopping carts, kicked across the floor, or roughly handled in any manner by any of the clerks or so far as they knew by any customers, from the time the Coca-Cola area was last serviced until the next day at 3 p. m. So far as we can find in this record, there was not even any effort made to prove any of such facts. Not a person in the Buddy’s Super Markets where the explosion took place was used as a witness to establish any of the facts our Supreme Court has said must be established under such circumstances for the doctrine of res ipsa loquitur to apply.

The court in Hankins also commented upon one of their previous opinions involving an explosion of a Coca-Cola bottle as follows:

“It was stated in that case that negligence may be inferred provided that the testimony showed ‘that the bottle (1) was in no way “accessible to extraneous harmful forces” ; and (2) “was carefully handled by plaintiff or any third person who may have moved or touched it.” ’ The court then said that ‘The reason for that proviso is that, in absence of such proof, the evidence would show two or more possible causes of the explosion, one or more of which is chargeable to persons other than the defendant, in which situation the rule of res ipsa loquitur is not applicable.’ The Honea case recognized the dangers of too liberal an application of the doctrine when it required the plaintiff to satisfy the controlling question of the absence of intermediate forces acting upon the instrument causing the injury, before the ultimate question of inferred negligence be reached.”

In the Honea case our Supreme Court also quoted with approval from a California Supreme Court case as follows:

“ ‘It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.’ ” (Emphasis added.)

It is obvious the venue question has not been fully developed. Under such circumstances it may be reversed and remanded instead of reversed and rendered. Jackson v. Hall, Chief Justice, 147 Tex. 245, 214 S.W.2d 458; Stokes Bros. v. Thornton, Tex.Civ.App., 91 S.W.2d 756 (N.W.H.).

Appellee argues by brief that in any event the suit is maintainable in Hutchinson County against appellant under Subdivision 29a of Article 1995 V.A.T.S., since venue lies against Buddy’s Super Markets, the co-defendant.

We are unable to agree with that contention. From the record made before us full satisfaction could be had against the food store without appellants presence in the case. Therefore, the beverage company is not a necessary party within the meaning of Subdivision 29a. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; First Nat. Bank in Dallas v. Pierce, 123 Tex. 186, 69 S.W.2d 756 (Com.App. opinion adopted).

Accordingly, the judgment of the trial court is reversed and remanded.

ON MOTION FOR REHEARING

Justice Folley speaking for the Supreme Court in Jackson v. Hall, Chief Justice, supra, quoted with approval from another of their cases as follows:

“ ‘It is the general rule in civil cases that, when the Court of Civil Appeals reverses the judgments of the trial court for lack of evidence in support thereof, it will not render judgment unless it appears that the case in that respect has been fully developed. In such cases, when it does not appear that the facts have been fully developed, the judgment of the appellate court should be one of remand and not one of rendition.’ ”

If this case was fully developed from the testimony available, appellant is not prejudiced by a remand, because appellee could not make out a cause of action. If the case was not fully developed, the above quote from the Supreme Court indicates to us it should be remanded for development rather than rendered.

Therefore, the motion for rehearing is overruled.

      . Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 970, 160 A.L.R. 1445.


author: GREEN, Chief Justice.

text:
    DANAHO REFINING COMPANY, Appellant, v. Clifton E. DIETZ et al., Appellees.
    No. 45.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 16, 1964.

      Dean Patton, of Morrill & Patton, Bee-ville, Jacques P. Adoue, Houston, for appellant.
    Robert D. Nogueira, Beeville, for appel-lees.
   GREEN, Chief Justice.

This appeal is from an order overruling a plea of privilege. The parties will be designated as in the trial court.

Six plaintiffs, former employees of defendant, joined in one petition to bring suit for breach of an alleged contract between defendant and its employees at its plant at Pettus, Bee County, Texas, by the terms of which, so plaintiffs allege, defendant became obligated to pay to each employee, including plaintiffs, an annual Christmas bonus equal to one month’s salary in lieu of a salary raise.

Four days after defendant filed its plea of privilege, a controverting affidavit was filed on behalf of all of the plaintiffs, invoking Subd. 23, Article 1995, Vernon’s Ann.Tex. Civ.St. This instrument was signed by the attorney for plaintiffs, and by plaintiff W. S. Schley, and was sworn to only by Schley. The original petition was made a part of said instrument by proper reference. Thereafter, plaintiffs filed their first amended petition. On the same day an amended controverting affidavit was filed by all six plaintiffs, incorporating the amended petition by reference, signed by the attorney for plaintiffs, and sworn to only by plaintiff Schley.

Defendant in a reply to the amended controverting affidavit filed special exceptions to the effect that there being six separate parties plaintiff, and plaintiff Schley not appearing to be agent or attorney for either of the other plaintiffs, said controverting affidavit was insufficient in law because it was not verified by each of the other plaintiffs, and further that no properly verified controverting affidavit was filed by any of the plaintiffs other than Schley, so that as a matter of law, the plea of privilege should be sustained as to all except Schley.

The trial court at a hearing on the pleadings overruled said special exceptions, and granted the other five plaintiffs leave to amend by signing and verifying their amended controverting affidavit. Thereupon each of said plaintiffs duly signed and swore to said pleading. Defendant submits by its first two assignments the alleged error of the court in these rulings.

Rule 86, Texas Rules of Civil Procedure states, in part “ * * * If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.”

In the present case, the alleged cause of action of each plaintiff depends on the existence of a contract between defendant and its employees at the Pettus plant concerning the payment of an annual Christmas Bonus, as alleged jointly by all plaintiffs. If said contract could not be established, none of the plaintiffs could recover. - Under such circumstances we hold that the original controverting affidavit was sufficient to place in issue the venue question as to all plaintiffs. Rule 86, T.R.C.P.; Pounds, et al. v. Marler, et al., Tex.Civ.App., 50 S.W.2d 382, n. w. h.; Anders v. Newsom, et al., Tex.Civ.App., 217 S.W.2d 422, n. w. h.; Montgomery v. Gibbens, Tex.Civ.App., 245 S.W.2d 311. The plaintiffs, after amending their petition, had the right to filé, and in fact were required to file, their amended controverting affidavit if they wished to incorporate by reference the allegations of such amended petition in said controverting affidavit, and such amendment relates back to and supersedes the original. McDonald, Texas Civil Practice, Vol. 1, § 4.S0, page 451, and cases cited.

Defendant in his brief seemingly, agrees that if there had been no special exceptions •directed at the failure of the remaining five plaintiffs to verify the controverting affidavit, said pleading, duly sworn to by plaintiff Schley, may have been good on behalf of all plaintiffs on the ground that defendant would have waived the failure of the 'other plaintiffs to so verify. But, defendant contends, there was no such waiver by it due to the special exceptions it filed, as well as the objections and exceptions it made to all testimony concerning the five plaintiffs who did not swear to the controverting affidavit at the time it was filed. Anders v. Newsom, et al., supra.

We feel as stated above that the controverting affidavit was sufficient to place in issue the venue question as to all parties without being verified by' the other five plaintiffs. In all events, the controverting affidavit being sufficient as to all parties in •the absence of any special exceptions, it was subject to being amended, and the trial court was authorized to grant leave that it be' amended by the addition of the verification of these five plaintiffs. Bates v. Stinnett, Tex.Civ.App.,. 170 S.W.2d 644; Phipps v. Reed, Tex.Civ.App., 219 S.W.2d 561; Maucini v. Haymes, Tex.Civ.App., 231 S.W.2d 757; Texas Emp. Ins. Ass’n v. Campion, Tex.Civ.App., 236 S.W.2d 193; Farmer, et al. v. Cassity, Tex.Civ.App., 252 S.W.2d 788; Palmer v. Cheyne, Tex.Civ.App., 261 S.W.2d 373, writ dism.; Texan Meat Co. v. Inness, Tex.Civ.App., 308 S.W.2d 956.

As said by Justice Speer in Super-Cold Southwest Co. v. Green & Romans, Tex.Civ.App., 185 S.W.2d 749, 752, “The controverting affidavit is plaintiff’s pleading in a.venue case and is subject to amendment the same as any other pleading; if special exception is urged against such a pleading it may, at the proper time, be amended.”

Defendant next contends that plaintiffs failed to establish the necessary elements of their various causes of action. We overrule this contention. Plaintiffs, to hold venue in Bee County, Texas, rely upon that portion of Subd. 23, Article 1995, V.A. T.S., which reads:

. “Suits against a private corporation' * * * may be brought * * * .in the county .in which the cause of, action or part thereof arose.”

The venue facts necessary to be proved by each plaintiff are (1) that defendant is a private corporation; (2) that plaintiff ’(each as to his own suit) has a cause of action against defendant; (3) that said cause of action, or a part thereof, arose in Bee County, Texas. Wood Motor Company v. Hawkins, Tex.Civ.App., 226 S.W.2d 487, n. w. h.; Appell Petroleum Corporation v. G. W. Townsend Lease Service, Tex.Civ.App., 375 S.W.2d 547.

- The: trial court having found for plaintiffs, we must examine the testimony in the •light most favorable to them and indulge every reasonable inference in support of the judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319; A. F. Drexler v. Architectural & Commercial Sales, Tex.CivApp., 37S S.W.2d 550.

J. F. Thomson testified that he was general superintendent in charge of defendant’s plant in Pettus, Bee County, Texas, and had been so employed since 1945. He stated that defendant was a private corporation. He testified that in 1952, the matter of a raise in wages for all employees in the plant came up for discussion between him and the employees, and also between him and Mr. Hovey, president of defendant corporation. A meeting of the employees, with Thomson attending, was held at the plant to determine whether the employees would receive a ten cent per hour raise, or an annual Christmas bonus of a month’s salary. The employees chose the annual Christmas bonus to be paid at the plant in Bee County. This was reported by Thomson to Hovey who approved and ratified this agreement for the defendant. Without going into the details of the testimony further, we find the evidence sufficient to justify a finding that a contract was entered into in Bee County, Texas, between defendant and its employees, including the four plaintiffs, Schley, Wehe, Aguirre and Gonzales, who were at that time in defendant’s employment at its plant in Bee County, Texas, that defendant would annually pay in Bee County to its said employees for work performed in Bee County a Christmas bonus equal to a month’s salary. Plaintiffs Hagemann and Dietz were not in defendant’s employment at the time of the agreement, but the testimony of each is sufficient to warrant a finding that at the time of the subsequent employment of each they were promised, as a part of the terms of their employment, the same annual Christmas bonus, to wit, a month’s salary, as the other employees were to receive.

The bonus was paid in 1952 and in 1953. It was not paid in 1954 but, in lieu thereof, each plaintiff received a letter dated December 21, 1964, signed by D. W. Hovey, the defendant’s president, reading in part as follows:

“Due to conditions beyond our control, we will be unable to pay the Christmas bonus at this time * * *.
“I realize that this bonus is a direct obligation of your company and is so shown on our books and want to assure you that it will be paid as early next year as practical to do so.”

On December 21, 1955, Hovey again by letter to the employees, including these plaintiffs, recognized the defendant’s obligation concerning the Christmas bonus, ' writing:

“Our directors regret very much our inability to make full payment of the Christmas bonus at this time. However, we are pleased to make a partial payment of one-half the regular yearly bonus at this time as covered by the enclosed check.”

A check for one-half monthly salary was received by each plaintiff with a copy of this letter. Plaintiffs have not received any portion of the bonus since December, 1955. Their employment with defendant ceased in 1961 or 1962.

We hold that, considering the testimony in the light most favorable to the judgment, each plaintiff established by evidence a cause of action in his favor which arose in Bee County, and since it is undisputed that defendant is a private corporation, the trial court properly overruled defendant’s plea of privilege. F. H. Vahlsing v. Adames, et al., Tex.Civ.App., 341 S.W.2d 506.

Plaintiffs Schley and Dietz each testified to having received the letters dated December 21, 1954, and December 21, 1955, signed by D. W. Hovey, defendant’s president, a portion of both letters being quoted above. Said plaintiffs had retained their letters which were introduced as plaintiffs’ exhibits Nos. 1, 2, 13 and 14. Plaintiffs Hagemann, Wehe and Aguirre were each permitted to testify, over defendant’s objection and exception that such testimony violated the best evidence rule, that he had received a similar letter but that same had become lost or destroyed and could not be produced. There was no error in permitting this testimony to be given. Slaughter v. Morton, Tex.Civ.App., 195 S.W. 897, writ ref.; St. Louis, Southwestern Ry. Co. v. Turner, Tex.Civ.App., 225 S.W. 383, writ ref.; De Garcia v. Johnson, Tex.Civ.App., 265 S.W.2d 692, writ ref.; Alamo Development Co. v. Priest, Tex.Civ.App., 335 S.W.2d 240.

We have carefully considered all of defendant’s assignments and find no reversible error in the record.

Judgment affirmed.


author: PRESLAR, Justice.

text:
    Thelmeda STRINGER and William Leonard Stringer, Jr., d/b/a Stringer Service Station, Appellants, v. I. F. YARBROUGH, Appellee.
    No. 5596.
    Court of Civil Appeals of Texas. El Paso.
    April 8, 1964.
    Rehearing Denied April 29, 1964.
    Long, Welsch & Koehler, El Paso, for appellants.
    Rosen & McGregor, El Paso, for appel-lee.
   PRESLAR, Justice.

Appellee I. F. Yarbrough sued appellants Thelmeda Stringer and Leonard Stringer, doing business as Stringer Service Station, for damages to appellee’s automobile resulting from a fire occurring to such automobile while it was in the possession of appellants for the purpose of repair. It is undisputed that a bailor-bailee arrangement for the mutual benefit of both parties existed. The fire occurred while the car was in appellants’ place of business after repairs had been made to the starter mechanism by a mechanic employee of appellants. The mechanic testified that when he backed the car out of the stall where the repair work was done it was running’ “rough”, and he raised the hood to find the cause. When he raised the hood he discovered the engine engulfed in flame.

Appellee pleaded several specific acts of negligence, but on the trial before the court without a jury the court found that he proved no specific act of negligence. Judgment was awarded appellee, however, and the court filed the following as its conclusion of law:

“When the defendants, as bailees, delivered plaintiff’s automobile to him in a damaged condition as a result of the fire, a presumption of negligence arose against them which they have failed to overcome, viewing the record as a whole. Such failure entitles plaintiff to recover his damages. Trammell vs. Whitlock (4), 150 Tex. 500, 242 S.W. (2d) 157 (Sup.)”.

Appellants assign • two points of error which, in substance, are that the court decided the case on an erroneous conclusion of law as to the presumption of negligence against them; and secondly, assuming the correctness of such conclusion, the court erred in its finding of fact that they did not overcome such presumption.

The bailor-bailee relationship being undisputed, the damage by fire being undisputed, and the finding that appellee — as plaintiff-bailor — proved no act of negligence, being unchallenged, then the sole question is whether appellee can recover on the basis of presumed negligence. We think not.

It has long been a part of our law that where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes the bailee’s negligence or other fault to be the cause, and places on him the duty of producing evidence of some other cause of loss or injury. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (S.Ct., 1951) and cases there cited: These same 'authorities point; put that it does not change the ultimate burden of proof, but that it 'is a' mere rule for the conduct of the trial, and that it puts upon the bailee the risk of a directed ver-, diet if he does not meet it; but it does no more. Once he has done so, it disappears from the case. There is some confusion as to the nature and quantum of proof which the bailee must offer to meet or overcome the presumption. In some jurisdictions it is held that the bailee meets it when he establishes that damage or loss was occasioned by fire, theft, or other cause beyond his control. Others hold that it is not enough for the bailee to establish the mere fact of fire or theft, but that he must go further and negative want of ordinary care on his part by showing the circumstances, surrounding the origin of the fire and the precautions taken to prevent it. In Texas it seems settled that once the bailee establishes that the bailed article was destroyed by fire, there is no presumption against him, and the burden of showing negligence is on the bailor. As stated by the Supreme Court in the Trammell v. Whitlock case (supra) :

“The rule is recognized in decisions such as Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133, and Mustang Aviation, Inc. v. Ridgway, Tex.Civ.App., 231 S.W.2d 677, er.- ref., which held the presumption to disappear or not to exist, when there was evidence indicating the article to have been destroyed in a conflagration and there was no evidence other than the bare fact of a fire to suggest negligence on the part of the bailee. These decisions may be regarded as law in this state in so far as the language of the opinion is limited to the facts involved.”

Trammell v. Whitlock was a case where the subject of bailment was a commercial trailer. Bailee sought to meet the presumption of negligence by showing that he had loaned the trailer to someone, not an employee and not associated with him, and that the trailer was involved in a wreck while in such person’s possession. No explanation was given as to how the damage actually occurred. The holding was that such explanation did not meet the duty cast on the bailee in that it was no explanation of how the damage occurred, or that — however it occurred — it was not due to his neglect. In the case before us, appellee urges that Trammell v. Whitlock requires that the appellant-bailee go further than proof of fire alone. It is reasoned that proof of fire alone is no more of an explanation than proof of a wreck. However compelling such argument may be, it is not the law in Texas, and we have found no case so holding, except where there was some form of negligence.

Trammell v. Whitlock, by the above-quoted language, recognizes proof by bailee of damage or destruction by fire as meeting the bailor’s prima facie case. Also, decisions by the courts of civil appeals rendered since the Trammell v. Whit-lock case have been decided on such basis, and the Supreme Court, has refused error, n. r. e. See Beck v. Lasater, Tex.Civ.App., 286 S.W.2d 957, err. ref., n. r. e, and Western Woods Products Company v. Bagley, Tex.Civ.App., 274 S.W.2d 111, err. ref., n. r. e. Also see Texas City Terminal Ry. Co. v. American Equitable Assur. Co. of N. Y., D.C., 130 F.Supp. 843, and Falls Church Airpark Co. v. Mooney Aircraft, 5 Cir., 254 F.2d 920, for Texas cases decided by the Federal courts.

The burden of proof being on bailor, and it being undisputed that the damage was by fire, and the trial court having found that bailor proved no act of negligence on the part of bailee, it follows that we must sustain appellants’ first point, that the case was decided on an erroneous conclusion of law. Such finding makes it unnecessary to consider appellants’ other point.

The judgment of the trial court-is reversed, and judgment is here rendered that appellee recover nothing by his suit.


author: PER CURIAM.

text:
    D. R. CURTIS, Appellant, v. John B. CAREY, Jr., and Boynton H. Fleming, Appellee.
    No. 47.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 16, 1964.

      Joseph F. Molloy, of Cox & Wilson, Brownsville, for appellant.
    Osee Fristoe, Selden Snedeker, of Fer-rero & Snedeker, Harlingen, for appellee.
   PER CURIAM.

Appellee has filed a motion to dismiss this appeal for want of jurisdiction which must be sustained.

The judgment was rendered on November 7, 1963. On December 6, 1963, twenty-nine days thereafter, original motion for new trial was filed and no action was taken thereon. On the last mentioned date notice of appeal was filed for the first time. On December 24, 1963, forty-seven days after the judgment, an appeal bond was filed by appellant.

It thus appears that notice of appeal was not filed within ten days of the judgment under Rule 353, Texas Rules Civil Procedure, and appellant’s appeal bond was not filed within thirty days of the judgment under Rule 356, T.R.C.P.

• The tardy filing of a motion for new trial does not operate to extend the time for filing notice of appeal or an appeal bond as is provided by said Rules 353 and 356. An appellaté court does not acquire jurisdiction of an appeal where notice of appeal, if required, as in this case, has not been given within the time required by law. This, is also true where an appeal bond has not been timely filed. Donald v. John Vinson, Inc., 344 S.W.2d 751 (Tex.Civ.App. 1961, wr. ref.); Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163 (1959); Park v. Essa Texas Corp., 158 Tex. 259, 311 S.W.2d 228 (1958); A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952); Howe v. Howe, 223 S.W.2d 944 (Tex.Civ.App.1949, wr. ref.).

The record before us is not sufficient to authorize consideration of the case as though writ of error had been perfected.

We have no alternative but to dismiss this appeal for want of jurisdiction.


author: CHADICK, Chief Justice. . DAVIS, Justice

text:
    Mrs. Rita M. SULLIVAN et al., Appellants, v. LYDICK ROOFING COMPANY OF HOUSTON, Inc., Appellee.
    No. 7530.
    Court of Civil Appeals of Texas. Texarkana.
    April 7, 1964.
    Rehearing Denied May 5, 1964.

      Helm, Jones & Pletcher, Houston, Reid, Strickland, Gillette & Ramsey, Baytown, Mabel Grey Howell, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   CHADICK, Chief Justice.

This is a common law tort action. The judgment of the trial court is affirmed.

United States Industrial Chemical Company contracted with M. W. Kellogg Company for the erection of a polyethylene plant in Harris County. Roofing a structure called the extruder building was subcontracted to Lydick Roofing Company of Houston, Inc. As construction progressed, Jack A. Sullivan, a field engineer employee of M. W. Kellogg Company, was instructed to make an inspection of steel work at the first platform above a silo structure. While ascending a series of ladders to reach the inspection point Mr. Sullivan stepped from the ladder to the roof of the extruder building. The roofing material under foot gave way, and he plunged to his death 24 feet below.

Mrs. Rita M. Sullivan, the surviving wife of Jack A. Sullivan, for herself and as Guardian of two minor children, together with the Guardians of the two minor children’s estates, brought suit against Lydick Roofing Company of Houston, Inc., to recover damages accruing to them as the result of Jack A. Sullivan’s death. The Traveler’s Insurance Company intervened as a plaintiff. The plaintiff’s pleadings and proof cast the Lydick Roofing Company of Houston, Inc., in the role of an occupier of premises, that is, the structure being roofed, and the deceased as an invitee thereon. Based on jury findings a take nothing judgment was entered in the trial court.

The plaintiffs undertook to prove that the defendant Lydick owed the decedent a duty to take reasonable precautions to warn or protect him from a condition of the ex-truder building roof constituting an unreasonable risk of harm. Issues were requested and submitted to determine the pertinent facts. In the plaintiffs’ series was an issue (Spec. Is. #2) by which plaintiffs proposed to establish as a fact that at the time the decedent stepped upon the roof he was unaware it would not support the weight of a man. The jury answered, “We do not”. Defensively Lydick Roofing Company of Houston, Inc., secured the submission of an issue (Sp. I. 13) reading as follows:

“Do you find from a preponderance of the evidence that Jack A. Sullivan, before his fall, knew or had been informed that the roof in question would not support the weight of a man?”

The jury answered:

“We do.”

To avoid lengthy and repetitious quotation, at this point reference is made to the opinion of the Supreme Court in Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, and the expressions it contains relative to the duty owed to an invitee by an occupier of land or premises; and the operation and scope of the “no duty” doctrine in a suit for damages by an invitee. The case (371 S.W.2d at p. 378) holds that an occupier (Lydick) is under no duty to warn an invitee (Sullivan) of a dangerous condition of the premises that is known to the invitee. On the same authority (371 S.W.2d at p. 380) it must be held that if the plaintiffs failed to establish Lydick Roofing Company of Houston, Inc., owed the decedent a duty to warn, etc., the plaintiffs did not prove an actionable case in the trial court.

The principal question arising from the findings mentioned (Special Issue #2 and Special Issue #13), is whether or not either amounts to a finding the decedent knew that the roofing would not support his weight and that such intelligence constituted, as a matter of law, knowledge of the danger that would be encountered by stepping, as the decedent did, onto the roof. On the basis of the authorities next cited it is concluded that the decedent’s possession of the fact or facts found is equal to and charges the decedent as a matter of law with knowledge of the danger. Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, W.R.; Hausman Packing Co. v. Badwey, Tex.Civ.App., 147 S.W.2d 856; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; A. C. Burton Co. Inc., v. Stasny, Tex.Civ.App., 223 S.W.2d 310, W.R.; McKee, General Contractor, Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Halepeska v. Callahan Interests, Inc., supra.

The appellants say the jury’s answers to special issues just discussed have no effect. The argument is that the answer to special issue No. 2 is the product of a failure of proof, and does not establish the converse of the question asked. Special Issue No. 13 is arraigned as being a disjunctive submission of two inconsistent issues having the effect of and constituting only an effort to determine whether or not in the exercise of ordinary care the decedent ‘knew or should have known’ the roof would not support a man’s weight. Based upon this postulate of the nature of the issue appellants dismiss the finding by pointing out that whether the decedent in the exercise of ordinary care, ‘knew or should have known’ the roof would not support a man’s weight is not an ultimate issue for jury determination in a ‘no duty’ case. (371 S. W.2d 383-384.)

Without deciding the question, it may be granted the appellants’ argument destroys special issue No. 2 as a basis of judgment. However, the validity of the challenge to special issue #13 can not be conceded. This last issue was submitted without objection to its form and must be regarded now as having the approval of the appellants. Rule 372(a). Whether the decedent ‘knew’ and whether the decedent was ‘informed’ are not inconsistent inquiries of the type contemplated by Rule 277. Answer to the issue submitted must be given effect. When two or more issues are combined into a single issue, as is the case here, in the absence of timely objection to the defect, the answer has the same effect as though the issues were separately submitted. Duff v. Roeser & Pendleton, Tex.Civ.App., 96 S.W.2d 682, N.W.H.

' As additional grounds for reversal the appellants urge that the jury findings just discussed are contrary to the great weight and preponderance of the evidence. The whole body of the evidence bearing upon the issue cannot be briefly detailed, but the substantial essence and quality of the proof is suggested in the following summary of the principal testimony.

Through correspondence courses and training on the job Mr. Sullivan became a practical engineer, and for five or six years before his death had been employed by the M. W. Kellogg Company and classified as a “field” engineer. -In this employment his principal duties consisted of running foundation levels and maintaining the plumb of steel structures under construction. This at times necessitated running roof lines, levels, etc. He had no duties associated with the actual construction of a roof except as plumb' and level might figure in it. The record is silent as to performance of a duty of this nature on the roof of the ex-truder building; from which he fell to his death.

. The roofing material that collapsed under him is known in the building industry as transite; it is of asbestos composition, manufactured in quarter inch thick boards, and described as being a slate color, or gray, the color of a concrete roof, and having a heavy substantial appearance. Use of the material in industrial plant construction is -limited, and'a person of long experience in the industry would not necessarily .be familiar -with it. Mr. Sullivan had been employed at one site where roofing of this material was applied, but no evidence was of- ' fered that he saw or had any experience with it prior to'construction of the extruder ' building.- A fellow engineer testified that • he and Mr: Sullivan had. walked across roofs of the- same material, at the present job site, and in the same state of construc- - tion as that óf the 'extruder building at the ■ time of this accident. At such stage in construction á person moving over the roof • stepped upon the ‘angles’, or steel beáms, supporting the transite, if plank walkways were not provided. The associate field en-< gineer who ascended the ladder just ahead of the decedent at the time of the fatal mishap testified that on another occasion he and Mr. Sullivan walked five to ten feet out upon the roof of the extruder building by stepping upon the steel members of the roof, and Mr. Sullivan cautioned him not to put his weight on the transite slabs because he would fall through if he did so. On cross examination this witness acknowledged that on this particular occasion the entire roof was covered with tar paper and wire mesh in preparation for the pouring of gypsum which was in progress at the time.

Considering and weighing all the evidence, as this court must do under the provisions of Rules 451, 453, and 455, Vernon’s Texas Rules of Civil Procedure, and the Constitution of the State, (In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660), it cannot be held that the overwhelming weight and preponderance of the evidence is contrary to the jury verdict upon these issues.

Jury misconduct is the subject of another point of error. The testimony of five jurors produced on motion for rehearing disagreed in detail, though they were broadly in agreement. One juror had been excused, leaving eleven to determine the issues. The jury initially divided eleven to eight upon special issues #2 and #13. These two issues were by-passed until answers to the other issues had been agreed upon, with the exception, perhaps* of the damage issue; as to it the evidence is conflicting. The implications of-the trial court action is that he found the facts to be'substantially as revealed by the testimony next quoted. One of the lady jurors was elected foreman. "In her testimony the foreman said:

“ * * * T told them we should answer according to the evidence and' that in my opinion I didn’t think it made any difference either way in these particular questions, that I thought she , would get some money anyway.” .

Another lady juror, one of three hold-outs at the time of the foreman’s statement, was tendered as a witness by the appellants. Her cross examination testimony, in part, is as follows:

“Q. And do you recall how the Jury stood with reference to the answers to No. 2 and 13? What was the numerical split?
“A. There were three of us that were rather undecided, and then the rest had decided as it is now.
“Q. Were you one of the three Jurors who felt that Mr. Sullivan did not know that the roof wouldn’t support him ?
“A. Yes.
“Q. Did you all take few or many ballots with reference to those two questions ?
“A. There were many.
“Q. Did the Forewoman make any ■ statement after you had taken many ballots on those two questions on what effect the answers to those two questions would be ?
“A. Yes. She said it wouldn’t make any difference.
“Q. That it wouldn’t make any difference how they were answered ?
“A. That is right.
“Q. Following her remark, did you and the other two Jurors switch your vote on over then ?
“A. Yes.
“Q. There was no disagreement with her once she had made that statement that it didn’t make any difference, was there?
“A. I think we had some discussion, but I couldn’t tell you for sure.
“Q. All right. After Mrs. Ray had made the remark that it made no difference how those two questions were answered, did you take another vote, then, to see whether '■ or not the three of you would change your vote ?
“A. Yes.
“Q. And did you change your vote then?
“A. Not right off the bat. We discussed it further. I think we had several votes after that.
“Q. All right.
“A. It is kind of hard to remember.
“Q. Do you recall whether she made that remark on one or more than one occasion ?
“A. I couldn’t say.”

The question presented is whether the foreman’s statement had the probable result of causing injury to the appellants by inducing the three hold-out jurors to agree to a verdict on the two issues heretofore discussed. Adrift in this poorly charted region of the law,, the solution by the trial court can scarcely go unchallenged. The Supreme Court divided five to four on a very similar question presented in Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242. As Rule 327, the Trousdale case and other authorities, such as Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, and Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 are understood, the burden is on the appellants to show injury.

The jury eventually rendered a verdict adverse to the appellants on the two issues in question. From that action alone it may be reasoned the appellants were injured. On the other hand, when the record as a whole is considered, such conclusion is not inescapable or even more probable than the converse. Before the statement was made the jurors had disagreed, but inflexible positions had not been taken. Willingness to pass to other issues is an indication that each juror considered the final determination of the facts of these two issues as open to further discussion. Failure to advert to the foreman’s errant opinion ,in the discussion preceding the several ballots on the issues reasonably indicates the jurors did not consider or treat the relevant evidence and the answers to these two issues as of no importance or consider the foreman’s statement as relieving them of the obligations to find the true facts. The discussion and ballots show that a reevaluation of evidence, credibility of witnesses and other proper considerations more probably formed the foundation for a final answer. The facts proved and the legitimate inferences and deductions therefrom are in an area in which the trial judge’s discretion operates, and his judgment upon the misconduct issue should not be disturbed.

The conclusions reached by this court make it unnecessary to discuss other points of error. The judgment of the trial court is affirmed.

FANNIN, J., concurs.

. DAVIS, Justice

(dissenting).

I dissent. I can not agree that Jack A. Sullivan was an “invitee”. If he was, he was a “business invitee”. I think that he was an “employee”. I do not think that the case by the Texas Supreme Count of Halepeska v. Callahan Interests, Inc., Tex., 371 S.W.2d 361, is directly in point. I am of the opinion that the decision in this case is in direct conflict therewith.

It has always seemed to me that if there is a doubt in the minds of Judges as to whether or not there was jury misconduct, then there was definitely jury misconduct. I can not agree that the question of jury misconduct can be “speculated” upon. I disagree with the holding of the Supreme Court of Texas in Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242. In the dissent, four of the five Judges said there was jury misconduct. I can readily see where the plaintiff in this case proved injuries because of the jury misconduct. Reading the quoted portions in the testimony cited in the opinion, it can readily be seen.

I would reverse the judgment of the trial court.


author: COIL, Commissioner.

text:
    Charles H. BARNARD et al., Respondents, v. L. MURPHY, Doing Business As Allied Refrigeration, Appellant. Gordon NEIL et al., Respondents, v. L. MURPHY, Doing Business As Allied Refrigeration, Appellant.
    Nos. 49086, 49087.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.
    Edwin Earnshaw, Kansas City, Donald C. Earnshaw, Lee’s Summit, for appellant.
    Foust & Lyons, Stephenson, Henry & Schollars, Kansas City, for respondents.
   COIL, Commissioner.

A prior opinion in these consolidated cases (see Barnard v. Murphy, 365 S.W.2d 614) was set aside, the mandates recalled, and, after correction of the transcript, the cases were submitted on “Substitute Briefs.” 'We have adopted some parts of the prior opinion without quotation marks.

Each of the plaintiffs in the above cases sought damages for the value of food which admittedly spoiled by reason of inadequate refrigeration while stored in lockers in a locker plant owned and operated by defendant and the amounts paid for the portion of the rental period during which such food was stored in said plant. In the first case, No. 49086, herein referred to as the “Barnard case,” six of defendant’s customers joined in one action under Civil Rule 52.05, V.A.M.R., each seeking to recover solely in his own behalf. In the second case, No. 49087, herein sometimes referred to as the “Neil case,” three of defendant’s customers instituted an alleged class action under the provisions of C.R. 52.08 in behalf of themselves and “all renters or lessees of locker space * * After the trial court ordered the cases consolidated they were tried to the court, resulting in a finding and judgment in favor of each of the six plaintiffs in the Barnard case in the aggregate amount of $873.89 and for 256 persons in the Neil case in the aggregate amount of $17,654.99. We have jurisdiction because the amount in dispute exceeds $15,000. Art. V, § 3, Mo. Const., § 477.040. (All section citations herein refer to sections of RSMo 1959 and V.A.M.S.)

Appellant presently contends the trial court erred in holding the Neil case was a class action. As we understand, appellant assigns no error with respect to the judgment in the Barnard case, nor does he assign error with respect to the judgment in the Neil case in so far as it permits recovery by the “named plaintiffs.” In brief, the only question on this- appeal is whether under the pleadings and the evidence, the Neil case was properly a class action.

The essential facts are not in dispute. Sometime after January 1, 1959, defendant, after being duly licensed, established the locker plant involved at 228 West 75th Street, Kansas City. Shortly thereafter, lockers were rented to plaintiffs (including the 256 renters in the Neil case) herein, either on monthly or yearly contracts. In May 1959 the locker room temperature began to rise above the maximum levels fixed by the statute (section 196.485) applicable to the cold storage of food in individual lockers. That condition lasted for a period of six weeks. The meat and other foods became unfit for human consumption and were disposed of by defendant. Defendant concedes that all the persons on whose behalf named plaintiffs purported to bring a class action were entitled to the amount of damages awarded each such person if the case is properly a class action.

Aetna Casualty and Surety Company was joined as a defendant in the Neil case. The petition referred to the provisions of the locker plant act (§§ 196.450-196.515) and averred that pursuant to the requirements of section 196.510(2) thereof defendant had purchased and Aetna had issued its indemnity policy No. IMB 78223 which at all material times was in full force and effect; and “that the proceeds from said policy represent a common fund to which all members of the plaintiffs class are entitled.”

Section 196.510(2) provides: “The operators of all locker plants shall furnish satisfactory locker content insurance to indemnify users against loss, issued by companies duly authorized and licensed to do and transact business in the state of Missouri, in a minimum amount for each locker or locker plant to be determined by the commissioner; provided, however, that such operator may, and is hereby authorized to, collect the pro rata amount of the premium for such insurance from the user in addition to the locker rental as an additional service.”

Aetna’s answer, inter alia, admitted that Murphy was the owner and operator of a locker plant which was under the control and regulation of the Missouri Commissioner of Agriculture and that section 196.510(2) required operators of locker plants to furnish satisfactory locker content insurance to indemnify users against loss; denied that defendant Murphy had the indemnity policy described in the petition; denied that such policy was in force and effect at the time in question; and denied that the proceeds from that policy represented a common fund to which the members of the plaintiffs’ class were entitled.

Murphy’s answer, in so far as here pertinent, averred that the action was “not properly a class action and that the right of plaintiffs to maintain same should be denied and those paragraphs of their petition which so state should be stricken * * * ”; admitted that he as the owner and operator of the Allied Refrigeration had an indemnity policy with Aetna Casualty and Surety Company, No. IMB 78223, which policy was in full force and effect at all of the times mentioned in plaintiffs’’ petition; denied that the proceeds of that policy represented a common fund to which all the members of plaintiffs’ class were entitled; and averred that the policy served “only to insure the named plaintiffs here-

• When the cases came on for trial, plaintiffs with leave, over the objection of Aetna but without objection on the part of defendant Murphy, dismissed without prejudice as to Aetna.

Plaintiffs in their second amended petition on which the Neil case was tried, averred: “that this action is brought for and on behalf of themselves and all other renters or lessees of locker space of the Allied Refrigeration plant similarly situated, who are so numerous as to make it impracticable to bring them all before the court; that the right which is the subject of this action is several in nature; and that the object of this suit is the adjudication of claims to a common fund”; that plaintiffs were renters of the individual lockers in defendant’s plant, each of whom had meat or other food products stored which were permitted to spoil and become unusable by reason of various negligent acts attributed to defendant; and prayed judgment against defendant for the various and several amounts in which they had been damaged.

Civil Rule 52.08(a) provides:

“If persons constituting a class are very numerous or it is impracticable to bring them all before the court, such of them, one or more, as will fairly insure adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is * * *
“(2) Several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; * *

Appellant contends, inter alia, that although the claims of the class members represented by named plaintiffs are “several,” the adjudication of such claims does not and may not affect specific property involved in the action.

Respondents contend, inter alia, that “the object of the class action was a common fund being the indemnity policy which the appellant-defendant was required by statute to supply for the protection and ■benefit of the locker renters” and that “this is a hybrid class action and that such a suit ‘has to do with plaintiffs and a claim to a common fund.’ ”

Thus it is clear that plaintiffs’ theory below and here is that they are entitled to maintain the Neil case as a class action on the theory that the claim of each member of the class is several and, as we understand, the object of the action is to adjudicate those separate claims against specific property, viz., a common fund represented by the alleged Aetna insurance policy.

Aside from every other pertinent consideration, we do not understand how an insurance policy as such and standing alone, without reference to its terms and conditions or to whether it in fact was in effect, could constitute a “common fund” or “specific property involved in the action” which may be affected by the adjudication of the several claims of the members of plaintiffs’ class. It is, of course, possible that if plaintiffs had adduced evidence which showed the terms and conditions of an Aetna insurance policy by means of which defendant had complied with section 196.510 (2), supra, and if plaintiffs had adduced evidence showing that the terms and conditions of such policy indemnified the plaintiffs’ class members against the admitted losses, and that such policy provided that the aggregate amount of the losses sustained was to be paid to defendant Murphy as a common fund from which the several claims were to be satisfied, such proof, except for the reason hereinafter stated, perhaps would have been sufficient evidence to have shown that the case properly was brought as a class action under C.R. 52.08(a) (2).

The fact is, however, that not only did plaintiffs fail to make any such proof (they did not introduce the alleged policy or plead or prove its terms and conditions, effective dates, etc.), but what seems to us, in any event, to be an insurmountable obstacle to plaintiffs’ position in the present posture of the Neil case, is that the questions whether the Aetna policy was in effect and whether by virtue of its terms and provisions a "common fund” should or would come into existence, properly could not be determined in the absence of Aetna as a party. Aetna’s answer, which is a part of the present record, in effect denied any liability to defendant Murphy or to plaintiffs or the members of plaintiffs’ class on any policy of insurance issued by Aetna or required by section 196.510(2). Plaintiffs dismissed as to Aetna without prejudice. Thus Aetna ceased to be a party and could not be adjudged liable to produce a “common fund” or “specific property involved in the action.” It is true, as pointed out by plaintiffs, that the statute (§ 196.510(2)) mandatorily required the defendant to acquire locker content insurance for the benefit of locker users. It is likewise true that defendant admitted that he obtained such a policy from Aetna which was in full force and effect, and defendant Murphy testified that he carried insurance as required by the statute and that the insurance company had refused to pay any claim “we had.” It was explained to the trial court by defendant’s counsel that Aetna contended it was not liable under the provisions of the policy. But none of the foregoing aids plaintiffs in satisfying the noted requirement to show that by reason of an insurance policy there was in fact a “common fund” or “specific property involved in the action” which the adjudication of the “several” claims does or may affect.

It seems clear to us, therefore, that in the absence of Aetna as a party and an adjudication of whether and how and to what extent, if any, the policy in question affected the claims of the members of plaintiffs’ class, we may only speculate and guess whether the Neil case could have been a class action under C.R. 52.08.

Inasmuch, however, as the present defendant, the locker plant operator, concedes that each of the named plaintiffs as well as each of the persons who constitute the alleged class did in fact sustain a monetary loss as a result of the spoilage of food stored in lockers in defendant’s plant, we are of the view that we should remand the Neil case in part for such further proceedings, if any, as may he possible or appropriate.

The judgments in favor of each of the six plaintiffs in Case No. 49,086 are affirmed. The judgments in favor of the named plaintiffs in Case No. 49,087 are affirmed. The judgments in favor of all persons other than named plaintiffs in Case No. 49,087 are reversed and that case is remanded for such further proceedings, if any, as the parties may deem appropriate.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.