author: • CHAPMAN, Justice.

text:
    STANDARD ACCIDENT INSURANCE COMPANY, Appellant, v. Raymond D. MIZE, Appellee.
    No. 7346.
    Court of Civil Appeals of Texas. Amarillo.
    April 20, 1964.
    Rehearing Denied May 18, 1964.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Lawrence F. Green and Winston P. Brummett, Lubbock, for appellee.
   • CHAPMAN, Justice.

This is an appeal by Standard Accident Insurance Company from a judgment based upon a jury verdict for Raymond D. Mize in a suit filed by him under the Workmen’s Compensation Act for accidental injuries received while an employee of Maxey Construction Company.

The suit was filed as a general injury case. The jury found appellee totally disabled for six weeks and partially permanently disabled following the six weeks of total disability. The first point contends the finding of the jury of partial permanent incapacity is against the great weight and preponderance of the evidence. To pass upon the point requires a review of all the testimony. In re King’s Estate, King v. King, 150 Tex. 662, 244 S.W.2d 660.

Appellee went to work for Maxey Construction Company in 1946 when'he was 16 years of age, immediately after high school graduation. He went to work as- a common laborer doing only heavy physical work and by 1949 had worked himself up to the position of journeyman carpenter. That year he was made a combination carpenter and supervisor and continued working as such until the injury on July 24, 1959.

. At about 5:30 p. m. the day of his injury appellee was moving sheets of plywood to cover holes in the first floor of- a church building under construction when he accidentally stepped into a hole in the floor that had been covered with Sizo-Kraft paper. He fell fourteen or fifteen feet to the concrete floor in the basement, was knocked unconscious and did not regain consciousness until 10:30 that night after he had been carried to the hospital by the church janitor.

He was hospitalized ten days, suffering from pains all over his body “ * * * like somebody had threshed me with a baseball bat all over.” His wrists were in pain, as was his neck, back and ribs “ * * * and that low back was what was hurting me the worst,” he testified.

A back brace was prescribed for him by his physician, Dr. Stiles, which he wore for six to eight months. He continued to see Dr. Stiles for several months, still suffering with pain in his back and neck.

While still wearing his brace on his back he started going back to the construction job after about six weeks following the injury. He would do some supervisory .work, resting from time to time, or go home at intervals to rest.

His employer continued to pay him $150.-00 per week. Both appellee and Mr. Mc-Abee, general construction superintendent, testified it was a company policy with key ^employees to pay their salary right straight through when they were sick or injured. Mr. McAbee testified appellee was in the category in which such rule was applicable. Mize continued to work in an advisory capacity drawing his regular salary, trying -to do some light carpentry work and had a palary increase of $25.00 per week during the -time.

In the summer of 1960 while still suffering from pains in his back the claim adjustor for appellant sent him to Dr. R. Q. Lewis, an orthopedic surgeon, who x-rayed him and placed him on physical therapy and exercises. He testified he could not take the exercises because of the back pain. Dr. Lewis sent him to Dr. Jack Dunn, a neurosurgeon, and he sent him to Dr.'Bronwell for removal of a tumor from his hip. The tumor soon healed and gave no further trouble. He testified the soreness in his back and down his legs continued to bother him up to the time of trial. The claim adjustor also authorized Mize to take treatments for three weeks from Dr. Blair, a chiropractor. He continued the treatments to the day of trial, though the insurance company agreed to pay for only three weeks. Dr. Blair treats only the neck and will not testify in court.

Mize was next sent by his attorneys to Dr. Lansford, a chiropractor. He took x-rays, examined him and testified in the trial. He found the right hip about three-fourths of an inch lower than the left; a half-inch difference in the left leg and the right leg, with an imbalance in the pelvis; a compression of the disc at the fifth lumbar-sacral area, with nerve root pressure and with a forward displacement of the fifth lumbar vertebra. He also found some rotation of the fifth cervical vertebra with consequent nerve root pressure in that area and a narrowing at the fourth and fifth lumbar interspace, with probable nerve root pressure. He found no congenital abnormality. He testified in response to a hypothetical question giving the nature of the fall, the treatments used and the pains testified to by Mize, that in his opinion the conditions described in his neck and back are permanent and he would be unable to do his type of work regularly.

‘ In answer to issues submitted the jury found the partial incapacity began on September 4, 1959, which is the day he reported back to work still wearing his brace and still under treatment of a doctor. He did little manual labor and took rest periods. The jury gave him six weeks of total incapacity and found his partial incapacity started immediately thereafter. They found his partial incapacity to be permanent.

Dr. Lewis testified Mize’s problem was primarily postural, super-imposed upon a congenital defect in his back, though in his report to appellee’s counsel on July 30, 1962, he did not mention posture.

Maxey Construction Company dissolved in February 1962, after Mr. Maxey’s death and appellee went to work for Republic National Life Insurance Company in April 1962, as a sales representative. To December 1962, he had earned $2,100.00 and the company representative testified he would probably earn less than $3,000.00 in 1963. Appellant contends that the jury’s answer of $70.00 per week reduction in appellee’s wage-earning capacity is contrary to the great weight and preponderance of the evidence because his employer, Maxey, continued to pay him his regular scale of pay and even raised him $25.00 per week.

In speaking of a workman’s rights under the Workmen’s Compensation Act in a situation such as that shown by Mize in this case it has been textually stated that:

“If his capacity and efficiency to work are not the same as before the injury he is entitled to compensation regardless of the fact that he was paid, after the injury, as much or more than he earned prior to or at the time of the injury.” 45 T.J., Workmen’s Compensation, Section 161, Page 589.

In Hartford Accident & Indemnity Ins. Co. v. Miller, Tex.Civ.App., 5 S.W.2d 181 (writ dismissed) our court has held:

“While the evidence discloses that the plaintiff has been receiving the same or larger wages than he received prior to his injury, there is evidence that his earning capacity has been seriously affected, and his capacity or incapacity is not to be measured solely by the fact that he has received such wages since his injury, and, in the event he should lose his position with his present employer, the injury received by him has seriously affected his earning capacity.”

The Fort Worth Court of Civil Appeals has held: “ * * * it is not necessary to show economic loss in order to recover permanent disability benefits.” Bituminous Casualty Corporation v. Metcalf, Tex.Civ.App., 348 S.W.2d 270 (N.R.E.).

In Consolidated Casualty Insurance Company v. Smith, Tex.Civ.App., 309 S.W.2d 80 (N.R.E.) the Houston Court of Civil Appeals has held: “That workman has earned more money per week since returning to work than he had averaged during the year preceding his injury was not conclusive on issue of impaired earning capacity.”

The Fifth Circuit Federal Court in Travelers Insurance Company v. Truitt, 5 Cir., 280 F.2d 784, at page 787 has held:

“ * * * the fact that an injured employee resumes work after an injury and earns substantially the same as before the injury is not a conclusive indication that there has been no loss of earning capacity, but is evidentiary only.”

The quote from our court in Hartford Accident & Indemnity Ins. Co. v. Miller, supra, recites almost the identical situation we have here if appellee and his witness, Dr. Lansford, are to be believed. While this writer if passing upon the credibility of witnesses would be more inclined to believe the testimony of Dr. Lewis, the M.D. witness used by appellant, this court cannot say the jury did not have a discretion in rejecting his testimony and believing Dr. Lansford. His testimony shows he had more than three years in Texas Tech; two years in the Texas Chiropractic College in San Antonio; two years in Carver’s Chiropractic College in Oklahoma City, and various postgraduate courses; that he had a D.C. degree, a Ph.C. degree in his profession and eight years of practice; that his chiropractic training included the study of taking and reading x-rays. Additionally, the jury had the testimony of appellee to the effect that he continued to have disability, with pain even on getting in and out of his automobile which he had to use in selling insurance.

The Eastland Court of Civil Appeals in Texas Employers Insurance Association v. Price, Tex.Civ.App., 336 S.W.2d 304, 308 (N.W.H.) has held: “The fact that appel-lee’s testimony was in conflict with expert opinion testimony concerning the extent of his disability did not, under the circumstances, render it insufficient to support the verdict,” citing a number of cases. Among those cited is Associated Employers’ Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902 (N. R.E.), holding: “* * * that such evidence left an open question for the trier of facts, and the jury having answered in favor of the injured party, courts of appeal have no authority to disturb the judgment.” Accordingly, we hold appellant’s points urging the jury verdict of partial permanent and a reduction of wage-earning capacity of $70.00 per week' as being against the great weight and preponderance of the evidence are without merit.

Appellant next urges reversible error of the trial court in permitting a trial amendment to include aggravation of a preexisting condition and the definition thereof after both parties had closed and before the charge was read to the jury.

Rule 66, Vernon’s Ann. Texas Rules, authorizes the filing of such amendment where the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him and provides the court may grant a postponement to enable the objecting party to meet such evidence.

Granting ■ such amendment is largely discretionary with the trial court. Gulf, Colorado & Santa Fe R. Co. v. Bliss, Tex., 368 S.W.2d 594. , Such discretion will not be-disturbed in the absence of a showing of clear abuse. National Life & Accident Ins. Co. v. Hines,. Tex.Civ.App., 50 S.W.2d 364 (N.W.H.). We do not believe such a showing was made here.

“Where the discretion óf the trial court is not abused, he may permit the filing of a trial amendment after the testimony has been closed.” National Mutual Ben. Ass’n v. Aaron, Tex.Civ.App., 45 S.W.2d 371; Continental Paper Bag Co. v. Bosworth, 269 S.W. 83 (Com.App.); Gulf Casualty Co. v. Tucker, Tex.Civ.App., 201 S.W.2d 81 (N.W.H.); Vermillion’v. Haynes, 147 Tex. 359, 215 S.W.2d 605.

No complaint was made of surprise nor was a motion filed by appellant for continuance. Having failed to do so, the trial court committed no reversible error in allowing the amendment. Hardage v. Rouly, Tex.Civ.App., 349 S.W.2d 616 (N.R.E.); Dirks v. Dirks, Tex.Civ.App., 302 S.W.2d 471 (writ dismissed). This is especially true when we consider the fact that the alleged pre-existing conditions of congenital defect or postural defect were brought into the case by appellant’s witness and that it had not been raised by any pleading.

Appellant next urges ' reversible error for failure to submit its requested issues one through four inquiring if the disability, if any, was not caused solely by a postural defect or by the tumor on plaintiff’s hip.

Issues in substantially the same language were given in the main charge in issues fourteen and fifteen and answered against appellant. As heretofore stated they were not raised by appellant’s pleading. We find no reversible error in such refusal. Aetna Casualty & Surety Company v. Stone, Tex.Civ.App., 344 S.W.2d 895 (N.W.H.); Safety Casualty Co. v. Teets, Tex.Civ.App., 195 S.W.2d 769 (writ refused).

Appellant next claims reversible error in overruling its objection to special issues five, six and eight as being upon the weight of the evidence. Number five asks: “On what date do you' find from a preponderance of the evidence that such total incapacity, if any, began?” The defendant has long since voluntarily paid . the six weeks total incapacity, so there could be no reversible error in failing.to use “if any” after the word “date.” The same rule would apply to issue number six.

Issue eight inquired if appellee “ * * * has sustained or will sustain partial incapacity as a natural result of said accidental injury or injuries, if any, received on or about July 24, 1959.” The complaint is that “if any” was not included after “July 24, 1959.” There is no controversy but that was the date appellee was injured, so the jury could not have been influenced by the form of the issue.

Appellant next urges error because the trial court inquired of counsel in the corridor, allegedly in the presence of some of the jurors, as to whether the parties were any closer to a settlement. The court’s qualification of the bill to the effect that in his opinion no juror heard his inquiry and the fact that no showing is made that they heard such statement would preclude us from finding reversible error.

Rule 327 provides in part that where the ground of the motion is because of any communication made to the jury, the court shall bear evidence thereof from the jury or others in open court and shall grant a new trial if from the communication made it reasonably appears that injury probably resulted to the complaining party.

Reversible error is not shown in the absence of a showing of probability of harm. Ross v. Texas Employers’ Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541. No such showing is made here that any of the jurors even heard the judge’s question to counsel.

Finding no reversible error, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Lewes G. GRANTHAM, Appellant, v. BIG SPRING BONDED WAREHOUSE & STORAGE, INC., Appellee.
    No. 3872.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1964.

      John J. Watts, Odessa, for appellant.
    Jack Little, Big Spring, for appellee.
   COLLINGS, Justice.

Lewes G. Grantham brought suit against Big Spring Bonded Warehouse & Storage, Inc. to recover damages for an injury alleged to have been sustained because of negligence of the defendant. Plaintiff also alleged that he was entitled to recover on the theory of discovered peril. The case was tried before a jury which found both plaintiff and defendant guilty of negligence proximately causing plaintiff’s injury and, based upon the verdict, judgment was rendered for the defendant. Grantham has appealed.

Appellant Lewes G. Grantham presents one point in which it is contended that the court erred in refusing to submit to the jury requested special issues on the question of discovered peril. Appellee urges that the court did not err in refusing to submit such requested issues because (1) there was no evidence raising the issue of discovered peril, and (2) because the requested special issues were not substantially correct. We are of the opinion that there was no evidence to support issues of discovered peril and that the court did not err in refusing to submit them to the jury.

The substance of the requested special issues is as follows: (1) Whether plaintiff Lewes Grantham was in a position of peril immediately prior to the accident; ■ (2) whether appellee’s truck driver, Billy Patterson actually discovered Grantham’s position of peril, if any; (3) whether Billy Patterson realized that Grantham might not extricate himself from such perilous position; (4) whether Patterson’s discovery of Grantham’s perilous position was made by Patterson in time to avoid the occurrence by the use of all the means, if any, at his command, with due regard to the safety of himself, the equipment of his employer and. other personnel; (S) whether the truck driver Patterson failed to use such means, if any; (6) whether such failure, if any, was negligence, and (7) was a proximate cause of the accident in question.

The evidence and the verdict of the jury established that appellee’s employee Patterson parked appellee’s truck in such a way that the tailgate was not flush against the loading dock, failed to warn appellant Grantham of the manner in which the truck was parked, and that such action and conduct by Patterson proximately caused appellant’s injury. However, the jury also found that appellant was guilty of contributory negligence proximately causing his injury. In such circumstances an injured party may still recover if the pleadings and the facts bring the case within the doctrine of discovered peril, otherwise referred to as the doctrine of last clear chance. The general statement of the rule as set out in 40 Tex.Jur.2d 621 is as follows:

“If a person is in a position of peril and that position is discovered and realized by another in sufficient time to prevent injury by the exercise of ordinary care and with the means at his command, the person discovering the perilous position will be liable for any injury proximately caused by his failure to exercise ordinary care, even though the person so injured is guilty of contributory negligence but for which the injury would not have occurred.”

The cases hold that in order for a plaintiff to recover under this doctrine it is necessary for him to show that he was in a position of peril, that the defendant realized, in time to have avoided the danger, that plaintiff was in a position of peril and was pursuing, and would probably continue to pursue a course that was likely to result in his injury. Texas & New Orleans Ry. Company v. Hart, (Tex.Sup.Ct), 356 S.W.2d 901; Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162. It is held under this doctrine that the discovery by a defendant of the perilous position of the plaintiff gives rise to a new and immediate duty to prevent the threatened injury and the breach of this duty gives rise to liability, but there must exist a clear chance to avoid the injury for which the defendant is sought to be held. Herrin Petroleum Transport Company v. Proctor, 161 Tex. 222, 338 S.W.2d 422. See also Texas and Pacific Railway Company v. Meeks, Tex.Civ.App., 338 S.W.2d 169.

The evidence shows that on the occasion of appellant’s injury appellee’s truck driver Patterson had parked its moving van at a loading dock at Webb Air Force Base for the purpose of loading same; that the driver had not backed the van squarely into the dock and as a result there was a triangular gap between the tailgate and the dock so that one end of the tailgate was against the dock and the other end was away from the dock by a distance of twelve to sixteen inches. Appellant, who was a ■“freight handler” at Webb Air Force Base, was assisting in the loading of appellee’s truck and was carrying one end of a box, or crate, about seven or eight feet long, thirty inches wide and eight or ten inches thick, weighing not more than forty-five pounds. Patterson, appellee’s employee, was walking backwards and carrying the other end of the crate. Grantham was following Patterson so that the crate was in front of him, and when he attempted to step from the loading dock to the tailgate his foot went through the gap and he fell on his knee. The evidence showed that at the edge of the dock there was a wooden bumper consisting of two by eights. This bumper also served as a guide so that those who were handling freight might be able to know that they were at the edge of the dock. Grantham testified that‘the tailgate was lower than the dock and that he was expecting to step down slightly but did not know about the gap. Patterson testified that he knew the gap existed; that he discovered the condition when he got out of the track after he had parked; that the package he and Grantham were carrying was not heavy, and that the size of it was not such as to prevent a man from seeing the gap between the tailgate and the dock. Patterson admitted that although he knew about the gap and knew that if a man stepped into the gap he was liable to be injured he did not warn Grantham; that he just overlooked doing it; that he “just didn’t think about it” and that there was no reason why he could not have warned Grantham, with safety to himself and to his company’s property. Patterson further testified however that he didn’t see any reason to warn Grantham because he took it for granted that “everybody watches what they are doing.”

Appellant contends that the evidence as above substantially set out entitled him to have the requested special issues on discovered peril submitted to the jury. He asserts that the evidence shows without dispute that there was a “gap” between the tailgate of the truck and the dock; that such condition constituted a hazard and dangerous condition to those working around the truck, and that appellee’s driver Patterson admitted that he discovered the existence of such “gap” or dangerous condition some ten or fifteen minutes before appellant was injured, and failed to warn appellant of such hazardous condition. As authority for his contention that this evidence raises a fact issue on discovered peril appellant cites the cases of Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 and Long v. Suris, Tex.Civ.App., 275 S.W.2d 728, (Ref. N.R.E.). In our opinion the facts and circumstances of Ford v. Panhandle & Santa Fe Ry. Company are distinguishable and not here applicable in that the evidence in that case supported the conclusion that the fireman discovered the perilous position of the plaintiff when the engine was 100 feet away from the crossing, that if the brakes had been promptly applied at such time the speed of the engine would have been slackened sufficiently for the plaintiff to have safely crossed the intersection, but that the engineer did not apply the brakes until after the crossing was reached. Appellant particularly urges the language of Long v. Suris, indicating that in order to raise the issue of discovered peril it is not required that actual discovery by a defendant of the perilous position of the injured party should be shown by positive evidence; that it is enough “If the evidence raises the question as to whether the party charged should have under all the evidence discovered the perilous position, then the question as to fact as to whether he actually discovered it is for the jury * *

In this connection our Supreme Court in Safeway Stores, Incorporated v. White, 162 Tex. 473, 348 S.W.2d 162, speaking through Justice Walker states as follows:

“The ‘could have’ or ‘should have’ standard for measuring the proof required to raise the discovery issue has never been recognized by this Court and will not be adopted now. Actual discovery is an essential element of the doctrine of discovered peril as applied in Texas. If the rule were otherwise, the plaintiff could recover notwithstanding his own contributory negligence by proving that the defendant was guilty of nothing more than primary negligence in failing to discover his peril. The trier of fact is not required to accept the testimony of the defendant or his agent, and discovery may be established by circumstantial evidence. Where there is no direct evidence raising the issue, however, the plaintiff must prove facts and circumstances from which it can fairly be inferred that the defendant did actually become aware of the peril”.

The undisputed facts that appellee’s truck driver Patterson parked the truck in such a way that the tailgate was not flush with the loading dock leaving a gap of twelve to sixteen inches at one end of the tailgate and failed to warn appellant Grantham of such condition were acts of original negligence. Before appellant could recover in this situation under the doctrine of discovered peril he had the burden of showing that thereafter he was in a perilous position which was actually known by Patterson in time to have avoided the danger to appellant with the exercise of ordinary care in the use of the means at hand. Panhandle & Santa Fe Railway Company v. Napier, 135 Tex. 314, 143 S.W.2d 754.

The mere fact that there was a gap between the dock and one end of the tailgate of the van and that appellant and Patterson were carrying boxes and crates from the dock into the van did not necessarily place appellant in a perilous position as contemplated under the doctrine of discovered peril. The peril contemplated “is one that is immediate, clear and present”. 40 Tex.Jur.2d 625. In the case of Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610, it is stated as follows:

“In a factual situation of this kind, the defendant is entitled to assume that the plaintiff is giving reasonable attention to his surroundings; that one in such a place of peril will obey the instinctive urge of self-preservation to the extent . that he will remove himself from the impending danger. As a consequence, the defendant is liable only when he realizes, or has reason to realize, the inattentiveness of the plaintiff and the position which he occupies. In other words, the defendant has a right to rely upon the fact that the plaintiff will take such steps as are necessary to extricate himself from the perilous position in which he is situated. The text writers are in agreement on this proposition.”

In order for appellant to have been in a perilous position just prior to his accidental injury, as contemplated under this doctrine it would have to be assumed that he was not giving reasonable attention to his surroundings, that is, that he was not watching his step as he went from the loading dock into the van, and that Patterson' had knowledge of appellant’s inattentiveness.. Appellee had the right to assume that appellant would watch where he was going and, as stated in the Sisti case appellee would be liable only if and when its employee Patterson realized or had reason to realize that appellant was not watching his step, and was therefore in a position of peril. The evidence, in our opinion, does not support the conclusion that Patterson became aware of the fact that appellant was not watching his step and giving reasonable attention to his surroundings on the occasion in question in time to have prevented appellant’s injury by the exercise of ordinary care and with the means at his command. The evidence does not raise issues on discovered peril and the court did not err in failing to give appellant’s requested special issues.

For the reasons stated the judgment is affirmed.


author: CHAPMAN, Justice.

text:
    CHICKASHA COTTON OIL COMPANY, Appellant, v. T. L. HOLLOWAY, Appellee.
    No. 7344.
    Court of Civil Appeals of Texas. Amarillo.
    April 6, 1964.
    Rehearing Denied May 4, 1964.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Fitzjarrald & Poole, Amarillo, for appel-lee.
   CHAPMAN, Justice.

Plaintiff-appellee, T. L. Holloway, a cotton-growing farmer near Wellington alleged that on September 22, 1961, he had ginned a bale of cotton with Chickasha Cotton Oil Company, which operated a cotton gin in Wellington, Texas; that while on the property of said company as a customer he was an invitee; that after his bale of cotton had been ginned he went to the area of the gin property where the lint cotton pressed into bales was loaded from a 10-foot-high platform onto flatbed trucks to secure and examine a sample of his cotton; that while there the company’s agents acting within the scope of their authority threw a bale of cotton from the platform onto him, pinning his head between the bale of cotton and the truck, and as a result thereof his face, head and jaws were crushed; that defendant was negligent in failing to keep a proper lookout before throwing the bale of cotton from the overhead platform and in failing to warn him that the bale was to be thrown, and that such actions constituted proximate causes of his injuries and resulting damages.

Defendant-appellant alleged Mr. Holloway was negligent in failing to maintain a proper lookout; in placing himself in a position of danger known to him hut unknown to the gin employees; that he voluntarily exposed himself to a risk and danger known to him, such that the principle of volenti non fit injuria is applicable; and that his injuries were proximately caused by his exposure of himself to loading operations being conducted on the premises which were open and obvious to him.

A jury submission resulted in findings that defendant’s employees failed to keep that character of lookout that a person of ordinary prudence would have kept at the time the bale of cotton was thrown from the platform at the time and place in question; that said employees failed to warn plaintiff that a bale of cotton was to be thrown from the platform; and that plaintiff suffered injuries proximately resulting therefrom for which damages were assessed.

The jury found that plaintiff was an invitee ; that he was not negligent in placing himself in a position where he might be struck by a bale of cotton thrown from above, or in the character of lookout he maintained, or in placing himself in the particular position he occupied at the time he was struck.

In Special Issues 12 and 13 the court asked the jury:

SPECIAL ISSUE NO. 12
“Do you find from a preponderance of the evidence' that the hazard that he might be struck by a bale of cotton thrown from above was a hazard which was known to and appreciated by plaintiff?"
SPECIAL ISSUE NO. 13
“Do you find from a preponderance of the evidence that the hazard that he might be struck by a bale of cotton thrown from above was a hazard which in the exercise of ordinary care plaintiff should have known and appreciated?”
To such issues the jury answered “Yes.”

Both parties filed motions for judgment on the verdict and in the alternative for judgment n. o. v.

The court found that the answers to Special Issues 12 and 13 did not constitute a bar to recovery and rendered judgment for T. L. Holloway for $38,000, the amount found by the jury plus $3,000 agreed to by the parties as past hospital and medical expenses. It is from such judgment appeal is perfected to this court and in the first point appellant urges error of the trial court in refusing to render judgment for it under the principle of volenti non fit injuria, or voluntary exposure to risk.

In a lengthy and thorough discussion of both the “volenti” [an affirmative defense] and the “no duty” [which plaintiff must negative] principles, our Supreme Court has very recently held that the injured person must actually know and appreciate the danger to which he voluntarily exposes himself; or that as a matter of law he is charged with such knowledge and appreciation before the defense of volenti non fit injuria is applicable. Halepeska v. Callihan Interests Inc., Tex., 371 S.W.2d 368.

The Fort Worth Court of Civil Appeals in American Cooperage Company v. Clemons, 364 S.W.2d 705 (N.R.E.) has held that: “Knowledge of the very hazard which does result, and appreciation of the danger thereof, is essential to the applicability of the volenti doctrine.” There is no suggestion in our case that appellee had knowledge that the pressman Lunsford, who testified he was doing the work of two and sometimes three men would throw the bale of cotton off without looking over the edge of the platform to see who was around the truck or that he would do so without some sort of warning. There is probative evidence that it was not even his duty to throw the cotton from the platform to the truck below but that such duty was that of the trucker. Nei-their the trucker nor the pressman were in sight when appellee walked under the platform. .

In reciting the history and development of the “no duty” and volenti doctrines and giving the components of each Justice Greenhill in speaking for the Supreme Court in the Halepeska case has said:

“The 'no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. * * * His duty is to protect his invitees from the dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom and warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn -or . to protect the invitees. • * .*■ * “So * * * the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative ‘no duty.’ ”

There is not any question in the record but that appellee was an invitee. Even if it could be said that the very nature of the ginning business [where the customer brings his cotton to be ginned and pays a designated price for the services] does not make him an invitee as a matter of law, the jury found he was and the evidence is amply sufficient to support the finding.

■ Mr.' Cartright as manager of'the gin knew that Mr. Lunsford at the time was doing the work of more than one man. He testified it was not the pressman’s duty to load the cotton on the trucks. He also admitted there had never been any instructions to any of the employees to warn people when the cotton was to be thrown from the platform and that so far as he knew no warning by word of mouth or in any other manner was given when Mr. Lunsford threw the bale of cotton from the platform that hit Mr. Holloway’s face and head. He also testified in effect that the gin customers had a right to go to the pressroom, upon the platform, or to the truck on which cotton is loaded and that they had a right to a sample of their cotton.

There is not any question from this record but that the danger or hazard from which appellee was injured was not an open and obvious one. The only probative evidence on the subject came from him and his testimony completely refutes it. He knew from his experience with the press-room, loading platform and the flatbed trucks onto which the baled cotton was loaded that it was the trucker’s duty to load it. He investigated and found the trucker was not in the cab of the truck or anywhere around it. There was not anyone on the platform immediately before he walked up to the place where the bale was thrown off on him. When asked if he realized he was exposing himself to any danger at all he replied, “Ño, I did not.” There is certainly not anything in the record by which he could be charged as a matter of law, with knowledge that ■ a. danger existed or appreciation of danger in what he did. His knowledge of the loading was that the truck driver did it and he was not anywhere around the place. He looked up as he went out of the office and there was not anyone on the platform, so he thought he was perfectly safe. Therefore, under the clear holding of Halepeska, appellant was “under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom and to warn them thereof.” Halepeska, supra, syl. [2,3]. This it clearly did not do, and as a proximate result thereof appellee received his injuries.

The cases relied upon by appellant for its contention that the facts of this case bring it within the “no duty” concept as related to “open and obvious” conditions upon the gin yard are clearly distinguishable from the facts in our case. In those cases the conditions causing the injury were in existence on the premises at the time the invitee went thereon. In McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, the hazard was a highly waxed and slippery floor open and obvious to anyone who looked. In Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, the hazard was slippery marble stairs. In A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310 (writ refused) the hazard was a plate glass window the plaintiff had walked by as he came in the door to the building. Our Supreme Court has held that generally such conditions are static, such as holes and pits in the ground or sidewalks, broken stairs and the like, and that if such conditions be movable in part, such movement is generally rigidly circumscribed and easily predictable. Hernandez v. Heldenfels, Tex., 374 S.W.2d 196. Here the platform from which the bale was thrown was approximately twelve feet by twenty-four feet and it could have been thrown off anywhere the length thereof. Additionally, the force that threw it, the pressman, was hidden from view during all the time appellee was walking from the office to the platform and the trucker whose duty it was to load it was never in the picture.

The volenti doctrine is an affirmative defense with the burden on the defendant to bring himself within its requirements. It means legally that “ * * * a person may not recover for an injury to which he assents; that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger.” Halepeska supra. “In this state, the decision to incur the risk must have been deliberate; i. e., made with knowledge and appreciation of the danger so that it may be said that the person acted as the result of an intelligent choice.” Halepeska, supra; Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172.

The test both in “no duty” and volenti is a subjective one: “did plaintiff know and appreciate. * * * ‘The standard to be applied is * * * of what the particular plaintiff in fact sees, knows, understands and appreciates.’ ” It would appear obvious from these tests, when related to the facts as we have heretofore discussed them in relation to the “no duty” doctrine and authorities cited in connection therewith that appellee negatived the “no duty” obligation and that appellant did not bring itself within the volenti maxim.

We believe appellant’s contention for the application of the volenti doctrine to the record made here is further foreclosed against it by Fabens Ice Company v. Kosinski, Tex.Civ.App., 339 S.W.2d 546 (N.R.E.) and Sinclair Refining Company v. Winder, Tex.Civ.App., 340 S.W.2d 503 (writ refused). In the former the court said: “There was no issue submitted that asked the ultimate question as to whether there was a danger or not; ”. The same situation applies in our case. In the Winder case the court said:

“Whether there is a duty on the owner of premises to take precautions against injury to an invitee from dangers of which the latter is aware, depends on whether the invitee ‘voluntarily encounters’ the dangerous condition ‘of his own free will and as a result of intelligent choice.’ In determining the owner’s duty, the conduct of the invitee must be looked to. The owner’s knowledge and appreciation is only the initial inquiry. If this is established, knowledge and appreciation by the invitee must be shown. There yet remains the issue as to whether the invitee voluntarily exposed himself to the danger known and appreciated by him" (Emphasis added.)

As in the Kosinski case, we have no issue submitted nor a finding on the ultimate question as to whether there was a danger or not.

We also are of the opinion there is not any probative evidence that the invitee voluntarily exposed himself to any danger known and appreciated by him.

Appellant has not brought itself within Rule 279 Vernon’s Ann.Texas Rules so as to be entitled to presumed findings upon the necessary components to establish volenti. Such doctrine is an independent ground of defense, and is pleaded as such. Rule 279 provides in part as follows:

“Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party * * *
“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists of more than one issue, of one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issxie or issues shall be deemed as found by the court in such manner as to support the judgment.” (Emphasis added).

As heretofore stated, appellant neither objected to the failure to give the issue constituting the other components of the volenti defense nor requested them in substantially correct wording. Additionally, appellant did not request a hearing for findings on such omitted issues as required under Rule 279 before judgment was rendered, though appellee had objected to failure to give the issues. Therefore, even if it should be said, arguendo only, that a fact issue was raised as to a danger to which he voluntarily exposed himself it must under this record be regarded as having been found by the trial court in favor of appellee. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449; Collier v. Hill & Hill Exterminators, Tex.Civ.App., 322 S.W.2d 329, 73 A.L.R.2d 1141 (N.W.H.).

For all these reasons and by authority of the cases cited we hold appellee has negatived the “no duty” concept and that appellant did not bring itself within the doctrine of volenti non fit injuria.

Appellant next urges no evidence and insufficient evidence to support the jury’s findings of failure on the part of defendant’s employees to keep a proper lookout which was a proximate cause of plaintiff’s -injuries.

Mr. Holloway testified that from the time he left the gin office to go see about his cotton there were no obstructions between him and the platform one hundred to one hundred and fifty feet away; that he was out of view of the platform only for the period of time it took him to walk twelve feet, the distance from the edge to the center of the platform; and Mr. Lunsford, the pressman, testified he was doing the work of from two to three men; that it was not part of his duty to load the cotton; that after the cotton came out of the press he “walked” it across the platform with cotton hooks within about three feet of the edge then got back behind the bale and let it down before shoving it off the platform. Upon cross-examination he stated:

“Q. And so, when you pushed this bale of cotton off, you didn’t have time to look over the edge to see who was around that truck, did you?
“A. No, sir.”

From this testimony and the pictures showing Mr. Holloway’s location at the time he was hit the jury could have concluded, as they did, that Mr. Lunsford was not keeping a proper lookout which was a proximate cause of the injuries.

Of course, there are other inferences a jury might have drawn but we have no authority to set aside a jury verdict merely because the jury could have drawn different inferences or conclusions. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

Though only one finding of negligence and proximate cause is sufficient to support the judgment, we believe the evidence was also sufficient to sustain the jury finding of negligence and proximate cause in failure to warn. The evidence is uncontroverted that Mr. Lunsford gave no warning before throwing the bale off the platform. No open or obvious hazard existed. The general manager testified the customer had a perfect right to see about his bale of cotton and there were no warning signs to look out for cotton being thrown from the platform and there is not any suggestion that appellee consented to the failure of appellant to give a warning that he was going to throw the 605-pound bale of cotton. Accordingly, we believe appellant’s points eight and nine are without merit. Fabens Ice Company v. Kosinski, supra; Hobbs v. Grant, 314 S.W.2d 351 (N.R.E.).

Appellant’s contention of exces-siveness in the verdict as it applies to loss of earnings in the past and future are well taken. Though the amount of damages resulting from impairment of earning capacity of a plaintiff must be left largely to the sound discretion of the jury, they should not be left to mere conjecture. Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117.

The testimony shows he spent $890 or $445 per year for work he hired done in 1961 and 1962 that he would have done himself had he not been injured. His life expectancy was not proved but the testimony shows he was farming on a small scale and did all his farm work. If we use the $445 per year as a basis and say the jury in their discretion had the authority to project his farming ability eight more years until he was 73, which appears fair, the verdict would still be excessive to the amount of $1,110 for loss of earnings in the past and $2,440 for loss of earnings in the future.

We cannot agree with appellant that the amounts assessed by the jury for physical pain and suffering in the past and in the future are excessive. It would serve no useful purpose to detail all the many injuries to appellee’s head, jaws, teeth, etc., shown by the record. Suffice it to say they were so serious as to cause personality changes and to indicate by medical testimony they would continue for his lifetime. Without question they were very, very extensive.

From what we have said in passing upon the first point it becomes unnecessary to write upon appellant’s last point and our disposition of the case does not require us to consider appellee’s cross-assignment.

The judgment of the trial court is reversed and remanded unless within seven days from the date of this announcement, T. L. Holloway files a remittitur in the amount of $3,550.00. In the event such remittitur is filed, the judgment of the trial court will be reformed to conform to the above conclusion and as reformed, affirmed.

      . Halepeska, supra.


author: FANNING, Justice.

text:
    Karen I. DAVIDSON, Appellant, v. Dyer D. DAVIDSON, Appellee.
    No. 7586.
    Court of Civil Appeals of Texas. Texarkana.
    April 14, 1964.

    Sexton & Owens, Orange, for appellant.
    Stephenson, Stephenson & Thompson, Orange, for appellee.
   FANNING, Justice.

Karen I. Davidson and Dyer D. Davidson were divorced by judgment of the District Court of Orange County, Texas, on June 30, 1961, in cause No. 10,466. The judgment insofar as it adjudicated the property rights of the parties is quoted below.

On September IS, 1961, Karen I. Davidson filed suit No. 13,277 in the District Court of Orange County, Texas, against Dyer D. Davidson, alleging to the effect that the parties acquired certain real estate during their marriage in the name of the brother of defendant Dyer D. Davidson and that the parties had an equity in said real estate and further alleging that this real estate equity was not disposed of by the judgment in the divorce judgment heretofore referred to, and Karen Davidson, by this new suit, sought a monetary judgment against Dyer D. Davidson.

Defendant Dyer D. Davidson’s plea in abatement pleading res adjudicata was first overruled, however later, on October 18, 1963, by nunc pro tunc order defendant’s plea in abatement was sustained. The order recites certain factual matters before the court and states reasons why the plea was sustained which order is quoted in part below. Judgment was also signed and entered on October 18, 1963, sustaining defendant’s special exceptions to plaintiff’s petition with respect to the original judgment being res adjudicata and dismissing plaintiff’s suit. Plaintiff has appealed.

Appellant presents one point on appeal which reads as follows: “The trial court committed error to appellant’s prejudice in granting appellee’s plea in abatement and stating that the original divorce decree in Cause No. 10,466 was res adjudicata as to any claim of appellant herein.”

Appellant has brought forward no Statement of Facts. In the absence of a Statement of Facts, it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the trial court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Ehrhardt v. Ehrhardt, Jr., Executor, et al., Tex.Civ.App., 368 S.W.2d 37, writ refused.

The judgment of the trial court is affirmed.

      . “Tlie Court further finds that the parties hereto have accumulated certain community property since the date of their marriage, and the Court having heard testimony concerning same is of the opinion, and it is accordingly ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff, Karen I. Davidson, shall receive as her separate property and estate the following described property:
      “(1) All personal property which is now in her possession;
      “(2) The movie camera, accessories thereto and film, which was property of the community.
      “It is ORDERED that title to the above described property is hereby vested in plaintiff, Karen I. Davidson, and divested out of the defendant, Dyer D. Davidson.
      “It is further ORDERED, ADJUDGED AND DEGREED by the Court that defendant, Dyer D. Davidson, shall receive as his separate property and estate the following described property:
      “ (1) The shop equipment;
      “(2) The horses which belonged to the community;
      “(3) All personal property in Ms possession, excluding the movie camera, accessories and film, which are to be delivered to plaintiff.
      “It is ORDERED that the title to the above described property is hereby vested in defendant, Dyer D. Davidson and divested out of the plaintiff, Karen I. Davidson.”

      . “On this the 9th day of October, 1963, came on to be considered the defendant’s motion for an order nunc pro tunc on defendant’s plea in abatement, and came on to be considered the order heretofore entered herein overruling the defendant’s plea in abatement to plaintiff’s original petition filed herein; and it appearing to the Court that heretofore, on the 1st day of May, 1963, the Court was informed by counsel for plaintiff that there had been an understanding or agreement of some kind at the time of the entry of the divorce decree in Cause No. 10,466, styled Karen I. Davidson vs. Dyer D. Davidson on the docket of this Court, that the matter concerning property could be heard at a later date; and it appearing to the Court that on the 1st day of May, 1963, at the hearing on said plea in abatement, the attorney appearing for the defendant in this case was not active in the trial of the divorce case and knew nothing about such agreement and was not in a position to dispute the same; and it further appearing to the Court that thereafter, to-wit, on the 9th day of October, 1963, at a subsequent hearing before this Court, the attorney for defendant in this case and also the attorney for defendant, Dyer D. Davidson, in the divorce suit made known to the Court that it was understood that there was no such agreement, but to the contrary, correspondence from the Trial Judge in Cause No. 10,466 was introduced to the Court, which correspondence shows and establishes to the Court’s satisfaction that there was no such agreement, and further correspondence was presented to the Court directly from the plaintiff’s counsel herein to the Judge in Cause No. 10,466 calling the Court’s attention to the fact that property should be mentioned and disposed of in the original divorce decree; and further, it was made known to the Court that a hearing was had in the Court’s chambers and that the matter of property was incorporated in the judgment entered in Cause No. 10,466.
      “NOW, THEREFORE, the Court having reconsidered its prior ruling wherein the defendant’s plea in abatement was overruled, and being of the opinion that said plea in abatement should be SUSTAINED, and being of the further opinion that the order overruling defendant’s plea in abatement to plaintiff’s original petition should be set aside and an order nunc pro tunc sustaining defendant’s plea in abatement to plaintiff’s original petition should be entered herein:
      “It is accordingly ORDERED AND DECREED by the Court that the order overruling the defendant’s plea in abatement to plaintiff’s original petition be and the same is hereby set aside; and it is further ORDERED AND DECREED by the Court that the defendant’s plea in abatement to plaintiff’s original petition be and the same is hereby SUSTAINED.
      “SIGNED AND ENTERED, this 18th day of October, 1963.”


author: MASSEY, Chief Justice.

text:
    CONSOLIDATED COPPERSTATE LINES, INC., Appellant, v. STANDARD ASBESTOS MANUFACTURING & INSULATING COMPANY, Appellee.
    No. 16517.
    Court of Civil Appeals of Texas. Fort Worth.
    April 17, 1964.
    Rehearing Denied May 15, 1964.

      Rawlings, Sayers, Scurlock & Eidson and Richard J. Linton, Fort Worth, for appellant.
    Pannell, Dean, Pannell & Kerry, Beale Dean and Henry E. Kerry, Fort Worth, for appellee.
   MASSEY, Chief Justice.

From a judgment for damages in behalf of plaintiff Standard Asbestos Manufacturing & Insulating Company against defendant Consolidated Copperstate Lines, Inc., based upon loss and damage to plaintiff’s freight during shipment or as the result of defendant’s handling while performing the function as carrier, the defendant appealed.

Judgment affirmed.

Even if we give credence to defendant’s contention that the damage in question had its origin in the rain which fell and dampened the plaintiff’s metal products after delivery thereof was complete we are of the opinion, and so hold, that the liability of a carrier in an instance where goods are delivered by it in a condition created by its own act, or in a condition which occurred by reason of its omission to'take protective action which it was under a duty to take relative to such goods, — which condition ultimately and inevitably results in damage thereto — is not to be distinguished from that liability which is devolved upon a carrier for obvious damage to goods occurring during its possession prior to its tender of delivery — if the shipper was neither chargeable with notice nor actually had any knowledge of the condition prior to' the time the damage occurred. 9 Am.Jur., p. 821, “Carriers”, § 667, “Commencement and Duration of Liability”; 6 L.R.A. 849, note: “Carrier of freight; liability for loss of goods”; Rothchild Bros. v. Northern Pac. Ry. Co., 1912, 68 Wash. 527, 123 P. 1011; 40 L.R.A.,N.S., 773; 130 Amer.St.Rep. 460, note: VI “For what Acts the Carrier is Liable, (d) Losses or Damages Arising from an Improper Delivery”; Houston & T. C. Ry. Co. v. Trammell, 1902, 28 Tex.Civ.App. 312, 68 S.W. 716, error refused.

The difference in the case under scrutiny from the ordinary case of damage to goods during carriage is that the metal products being carried became contaminated, rather than immediately damaged, by a chemical residue in the form of ferrous sulphate powder. Such escaped from some bags of said chemical which were carried along with the metal products on the same shipment. It is to be noticed that the plaintiff was not responsible for and did not know that the chemical would be shipped on the same truck and at the same time that its products were shipped. That fact was known only to the defendant. Neither was the plaintiff notified of the fact of contamination prior to time rain fell on its products.

It appears to have been the addition of moisture (from a rain) to the ferrous sulphate powder coating on the products which “set the chemical process to work”, with the result that corrosion of the protective plating occurred in such degree that it was rendered useless for the purpose to which plaintiff intended it to be put. There is no question but that the loss and damage resulted from the contamination upon application of the moisture.

At the plaintiff’s request defendant picked up and thereafter held or disposed of the' metal—to the profit of the defendant if any profit therefrom was derived.

In the establishment of right to recover by its suit the plaintiff, in an abundance of caution, sought to establish the liability of the defendant under alternative theories: (1)that defendant was liable for the loss as an insurer, or (2) that defendant was obligated to exercise a high degree of care, wherein it failed and plaintiff’s loss and damage resulted. In answers to special issues jury findings were made under which plaintiff contends its judgment is supported under either of these theories.

The jury found that the defendant received plaintiff’s metal products for shipment in good condition, and also found that when the goods were delivered to plaintiff after shipment they were in a contaminated condition. There is a point of error complaining of the form of a certain special issue in answer to which the contamination was found, but the point is overruled because in answering two other special issues, of which no complaint is made, the jury returned what amounted to an identical finding, as to which any necessary implied finding of consequent damage would be supplied (in view - of the judgment) by Texas Rules of Civil Procedure, rule 279, “Submission of Issues”.

The jury found that in the exercise of a high degree of care the defendant knew, or could have learned, of the propensity of ferrous sulphate to corrode metal under certain conditions, and should have known that it was in torn and rotten bags in the same trailer with plaintiff’s goods, but that nevertheless defendant proceeded to effect transportation; that plaintiff’s damage resulted as a natural and proximate consequence ; and that failures on the part of the defendant in said respects severally constituted negligence which amounted to a proximate cause of the loss and damage.

The jury further found that defendant failed to keep the ferrous sulphate separate from plaintiff’s goods, and handled and transported it'in such manner as to cause plaintiff’s goods to be contaminated thereby, furthermore failing to notify plaintiff of such contamination;—by reason of which failures on the part of the' defendant in said respects the loss and damage resulted as a natural and proximate consequence; and that such failures on the part of the defendant in said respects severally constituted negligence which amounted to a proximate cause of the loss and damage.

As indicated in the forepart of the opinion we are of the opinion and hold that under the circumstances of the case the defendant’s liability was that of an insurer in the same manner as would have been the case were there no question but that the entire damage to plaintiff’s goods actually occurred prior to and was apparent at the time of delivery.

In the court’s charge the term “negligence” as used in the special issues submitting plaintiff’s alternative theory of liability was defined as “the failure to use a high degree of care”. The term “high degree of care” was furthermore defined as “that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances”.

If we err in our conclusion that defendant’s liability was that of an insurer in this case, we have no doubt but that under the relationship of the parties, and the nature of the questions to be resolved, the manner of submitting which is hereby approved, that the judgment should be sustained because of the degree of negligence the defendant was found guilty.

Defendant also complains because of the refusal of the trial court to grant leave to file a trial amendment after the evidence was closed. The pleading desired to be added was one by which the defendant alleged that the shipper of the ferrous sulphate was guilty of negligence because it failed to warn the defendant that such chemical was dangerous, ■ in that when it was combined with water it would produce a corrosive acid, and that such negligence on the part of that third party was the sole cause of plaintiff’s loss and damage.

It is to be observed that the trial amendment presented an inferential rebuttal issue, the burden of which, if submitted to the jury, would be cast upon the plaintiff. The inquiry proper to be made by special issue would be whether the jury found, from a preponderance of the evidence, that said third party’s negligence “was not” the sole cause of the loss and damage.

T.R.C.P. 63, “Amendments”, makes provision for the filing of trial amendments “only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.” Decisions under the rule establish the fact that action of the trial court in relation to such amendments is discretionary. Therefore the action of a trial court, whether it be one granting or denying leave to file such an amendment, is to be tested in the event of an attack thereon upon appeal by the determination of whether the action of the trial court “was a clear abuse of discretion”. 4 Tex.Jur.2d 358, “Appeal and Error — Civil”, § 823, “(Matters within jurisdiction of lower court) Pleadings and parties”; 3B Tex.Jur., p. 417, § 926.

The complaining party carries the burden of showing that reversible error flowed from the action of the trial court in denying the right to amend. Such a person must show that the denial was arbitrary or that it resulted in substantial and consequential injury. Weaver v. Bogle, 1959 (Tex.Civ.App., Waco), 325 S.W.2d 457, citing the Texas Jurisprudence section mentioned in the above paragraph, and also § 925. In the instant situation we are of the opinion that the trial court’s action was proper rather than arbitrarily erroneous, and, from a review of the evidence,- especially from defendant’s own employees, we are confident that the denial of leave to file the amendment did not result in substantial or consequential injury to the defendant.

Judgment is affirmed.


author: MOORE, Justice.

text:
    D. P. BROWN, Appellant, v. Joe R. EUBANK, Appellee.
    No. 23.
    Court of Civil Appeals of Texas. Tyler.
    April 23, 1964.
    Rehearing Denied May 14, 1964.

      Luther Truett, Moses & Truett, McKinney, for appellant.
    Roland Boyd, Boyd, Veigel & Gay, McKinney, for appellee.
   MOORE, Justice.

This is a boundary suit brought in the form of trespass to try title suit.

Plaintiff, Joe R. Eubank, is the owner of a rectangular strip of land containing approximately 84 acres which runs in a north to south direction. Defendant, D. P. Brown, owns land adjoining a portion of the plaintiff’s land on the south and also owns land adjoining plaintiff on the east. Plaintiff and defendant fell into dispute over the location of the plaintiff’s south boundary line and the location of the plaintiff’s east boundary line. Plaintiff, in his trespass to try title petition, describes the boundaries of his 84-acre tract as follows :

“A part of the Samuel M. Rainer Survey, Patent No. 479, Vol. 4, Abstract No- described by metes and bounds as follows:
“BEGINNING at a point in the South boundary line of the T F Roberts Survey, which is 505.38 varas east of the southwest corner of said T F Roberts Survey, and from which point a Sapanish Oak 12 inches in diameter, marked ‘X’ bears north 2 deg. west 72 links;
“THENCE SOUTH on a line parallel with the west boundary line of said samuel M. Rainer Survey, 1335 varas to stake for corner, from which a cluster of bois d’arc marked ‘XXX’ bears north 13 deg: East 157. links;
“THENCE West'356.5 varas to stake for corner;
“THENCE NORTH on a line paral-led with the west boundary line of said Samuel M. Rainer Survey 1335 varas to a stake for corner in the south boundary line of said T F Roberts Survey;
“THENCE East with the south boundary line of said T F Roberts Survey 356.5 varas to the place of beginning, containing 84.3 acres of land, of which 2.16 acres are in the public road * *

In addition to the above description describing the four boundary lines of the 84-acre tract, plaintiff further alleges that the south boundary line of his tract had been visibly marked on the ground for more than twenty-five years by a distinct turnrow and by a sufficient number of bois d’arc posts to determine the location of the south line. He alleges that the south and east boundary lines between plaintiff’s and defendant’s tracts of land are more particularly described as follows, to-wit:

“BEGINNING at a bois d’arc post which marks the northeast corner of the Marvin Moore home place; which Moore land is described in deed from Ethel Moore Montgomery et al to Marvin Moore, recorded in Vol. 467, on Page 152 of the Collin County Deed Records, reference to which is here made;
“THENCE East 803.22 feet to a cedar stake 9about two and one-half feet in length with a diameter of about I1/2 to 2 inchesO, which said line is located 26 feet and 10 inches south of the two bois d’arc posts which Defendant placed in Plaintiff’s field on April 1, 1960;
“Thence due north to the center line of the public road and continuing in a northerly. direction with said center line to a point where said center line intersects the north boundary line of the S. M. Rainer Survey.”

Plaintiff plead the three, five, ten, and twenty-five year statute of limitations. Defendant, D. P. Brown, answered with a plea of not guilty and general denial, and affirmatively plead the three, five, ten, and twenty-five year statute of limitations.

The case was tried before a jury. At the conclusion of the evidence the trial court’s charge upon which the jury based their verdict is found in paragraph 9 of the charge as follows:

“You are instructed that the ‘land in controversy’ means:”
“(a)” (Plere follows the same description of the 84-acre tract as was set forth in the plaintiff’s petition, quoted hereinabove.)
’’ “(b.)” (Here follows the description of the boundary line as alleged by the plaintiff between the two farms on the plaintiff’s south and east, as set forth in the plaintiff’s petition, quoted above.)
“(c) You are further instructed that if ownership of any part of the above described two tracts be in dispute same shall be deemed ‘land in controversy.’ ”

Although paragraph (c), quoted above, refers to two tracts of land, there is only one tract of land involved, the second description in the charge under paragraph (b) being another and different description of the boundary between the two farms where plaintiff alleges they join on his south and east.

In response to numerous special issues pertinent to this appeal, the jury found for the plaintiff on the three, five, ten, and twenty-five year statute of limitations on the “land in controversy.” The jury found against the defendant on each of his limitation issues.

In addition to those issues, the court also submitted the question of boundary in Special Issue No. 4, which was answered in favor of the plaintiff as follows:

“Do you find from a preponderance of the evidence that a boundary line beginning at a bois d’arc post which marks the northeas— corner of the Marvin Moore homeplace; which Moore land is described in deed from Ethel Moore Montgomery et al to Marvin Moore, recorded in Vol. 467, on page 152 of the Collin County Deed Records, reference to which is here made;
“Thence East 803.22 feet to a cedar stake (about two and one-half feet in length with a diameter of about V/2 to 2 inches) which said line is located 26 feet and 10 inches south of the two bois d’arc posts which defendant placed in plaintiff’s field on April 1, 1960; Thence due north to the center line of the public road and continuing in a northerly direction with said center line to a point where said center line intersects the north boundary line of the S. M. .Rainer Survey, Abstract No. 740, situated in Collin County, Texas, is the true boundary line on the ground between the Joe R. Eubank land and the D. P. Brown land?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes.”

Upon the verdict of the jury, the court granted judgment for the plaintiff, from which this appeal is prosecuted. In his judgment the court granted plaintiff the title and possession of the premises described and bounded as follows:

“Situated in Collin County, Texas, a part of the Samuel M. Rainer Survey, Patent No. 479, Vol. 14 Abstract No. 740 described by metes and bounds as follows:
“BEGINNING at a point in the South boundary line of the T. F. Roberts Survey, which is 148.68 vrs. east of the southwest corner of said T. F. Roberts Survey;
“THENCE South on a line parallel with the west boundary line of the said Samuel M. Rainer Survey 1335 vrs to point in north boundary line of the Marvin Moore Homeplace;
“THENCE East with the North Boundary line of the Marvin Moore Homeplace to a bois d’arc post which marks the northeast corner of said Moore farm; which Moore land is described in deed from Ethel Moore Montgomery, et al, to Marvin Moore, recorded in Vol. 467, Page 153 of the Collin County Deed Records, reference to which is here made;
“THENCE continuing on east for a distance of 803.22 feet to a point;
“THENCE due north to the center line of the public road and continuing in a northerly direction with said center line to a point where said center line intersects the north boundary line of the S. M. Rainer Survey, which said line is in common with the south boundary line of the T. F. Roberts Survey;
“THENCE West 356.5 vrs. to place of beginning, containing 84.3 acres of land, of which 2.16 acres are in the public road * *

The evidence shows the land involved to be agricultural land, without a fence between the two farms. Each of the farms are in cultivation with no trees or other natural objects upon the ground, but with only a “turn row” separating them.

Appellant, defendant below, among other points seeks a reversal of the judgment because the evidence fails to support the verdict and judgment locating with certainty the land upon the ground.

It being stipulated that the plaintiff and defendant owned adjacent lands which at the point of this boundary line dispute they both owned their respective land in fee simple, from the sovereignty of the soil, we believe such a stipulation leaves only the question of the location of the' true boundary line to be decided.

Although plaintiff did not plead that his land was adjacent to defendant’s land, we believe that in view of this type of stipulation the burden of proof in this instance would rest upon the plaintiff in order to show himself entitled to the relief which he sought in this cause, to prove by competent evidence that the south boundary line of his property was also the north boundary line of the Brown property and that the east boundary line of his property was the west boundary line of the Brown property. Hancock v. Bennett, Tex.Civ.App., 230 S.W.2d 328. At any rate, plaintiff had the burden of locating the true boundary line on the ground between the two tracts, as specifically pleaded by him.

In an effort to prove the lines between the two farms, plaintiff employed Louis Miller, a licensed land surveyor, to establish the lines. Not being able to locate any of the plaintiff’s alleged boundary lines to the 84-acre tract because he could not find a beginning place, Miller testified that in order to establish the locations of the plaintiff’s south boundary line and the defendant’s north boundary line, he went upon defendant’s tract of land, lying to the south of plaintiff, for the purpose of establishing the defendant’s north line. • He testified that he commenced his survey at the intersection of the defendant Brown’s west boundary line and a railroad track which ran across the defendant’s property; that he proceeded north up the defendant’s west property line, which line also, was Marvin Moore’s east line, for a distance of 2,478.30 feet, as called for in defendant’s deed, at which distance he established a point for Brown’s northwest corner from which the north boundary line of the Brown property would then rim east. He testified that this point was 24.3 feet south of a bois d’arc post which plaintiff plead was the Marvin Moore northeast corner, and from which plaintiff contended that the line then runs east a distance of 803.22 feet, as alleged in his petition. According to Mr. Miller, the Marvin Moore northeast corner was not discernible on the ground, and as we understand his testimony, even though there was a bois d’arc post in the vicinity which was pointed out to him as being Moore’s northeast corner, he does not locate the beginning point of the boundary line there where the plaintiff alleges same to be, but on the contrary locates it 24.3 feet south of said post. According to his testimony, he did not commence his survey of the boundary line at the bois d’arc post, but commences it at which he considered the Brown northwest corner which was 24.3 feet south of the post. From there, following the calls in the Brown deed, he says he went east a distance of 803.22 feet where he established a “point,” thus establishing the plaintiff’s south boundary line and the defendant’s north boundary line along this line. Nowhere in his testimony do we find where he established and marked Moore’s northeast corner east at 26 feet and 10 inches south of two bois d’arc posts, which defendant placed in plaintiff’s field on April 1, 1960, to a cedar stake, as alleged in the plaintiff’s petition. Nor do we find from his testimony that he marked the corner in any way, other than establishing a point. It appears from his testimony that his survey of the boundary line stopped at this point. We have not been able to find from his testimony where he connects this point with any line running north, although we do find several maps or plats which he testified he prepared, which shows that from this point there is a straight line running north, dividing Eubank’s and Brown’s north 75-acre tract. The course of this line is not shown on the plat; however, he testified he did not know whether the line was a true north-south line or not. None of his maps or plats show a road running along this line; however, he testified that he observed the road running north in the vicinity of the line. He further testified that the south end of the road appeared to veer farther east toward the Brown farm than north end and that the south end of the road made a rounding 90 degree turn to the east somewhere near the southwest corner of Brown’s 75-acre tract. Nowhere in his testimony does he attempt to connect the line he established as Brown’s north line with the road. Although the petition alleges, and the judgment recites, in the second call that a line running “due north” would intersect the center line of the road, we have been unable to find any testimony showing where or at what point such a line would converge with the center line of said road. As we understand Mr. Miller’s testimony, he did not run this line, nor can we find in his testimony where he testified that the line would converge with the center line of the road. Furthermore, he testified that he could not say that the road in question ran in a true north-south direction. His testimony, together with other testimony, showing that the traveled portion of the north and south section of the road had been moved east-wardly at the south end thereof in the direction of the Brown property, further complicates the question of where the line running north would intersect the center line thereof, if indeed it ever would.

Plaintiff, Joe Eubank, testified that the controversy over the south line of his farm originally commenced in about 1957, when defendant Brown accused him of taking some of his land. He testified that he continued to cultivate the land in controversy on his south side down to the “turn row” which he had done for several years before ; that on. April 1, 1960, defendant Brown crossed over the “turn row” and placed two stakes about 27 feet north of the “turn row” in his field and commenced cultivating the strip of land; ' also commencing to cultivate a narrow strip of land on his east side between Eubank and the roadway; that he, Eubank, then went upon the ground and marked off the line that he claimed to be the true boundary line between the two farms on his south and east. He testified that he was present when Marvin Moore set the bois d’arc post at the point which he claimed to be his northwest corner; that at the time the post was set, there was a stake there and the post was set where the stake was; that the post was still there at the time of the trial; that from this post he went due east a distance of 803.22 feet, which distance he found to be in Brown’s deed; that such a line was along the “turn row” which had been in use for years; that he marked this point by driving in the ground a little cedar stake about an inch and a half in diameter and about two feet long; that at this point the line goes north to the center of a public road and then on north to the north boundary line of the Rainer Survey; that at a point on the south line about 30-40 feet west of the corner stake he drove another stake in the ground. He testified that this is the line he claims to be the true line and that he does not claim down as far south as the place where his surveyor places Brown’s north line.

Marvin Moore testified that in 1957 or 1958 he had a survey made of his farm for the purpose of obtaining a loan. He testified that when the survey was made, he himself, pointed out the corners of his farm and showed them where to begin and that the surveyor surveyed from the corners he pointed out. The evidence shows that Moore’s deed did not contain any calls for distance, nor was there a call for a bois d’arc post at this northeast corner. The evidence fails to connect any of the corners of his land with the land in controversy.

Plaintiff introduced other testimony, but since same is mostly cumulative of that hereinabove set forth, it will not be summarized.

Defendant, D. P. Brown, testified that on April 1st he went upon the land north of the “turn row” which had been in use for years and at a point about 30 feet north of the bois d’arc post Moore claimed to be his corner, he put down another bois d’arc post upon the land that Eubank had been cultivating; he then went east and set another post in the land Eubank had in cultivation about 30 feet north of post Eubank had been using to, maintain an electric fence; that he then commenced to cultivate this strip of land on the south and that since the road on Eubank’s east side had been-gradually moved over on his north 75-acre tract through the years, he commenced to cultivate a small strip to the west of the road, thus taking in a strip of about 30 feet on the south and a strip about 17ld> feet wide by approximately 540 feet long on the east of the land Eubank had been cultivating, claiming same to be the boundary line. Brown did not call a surveyor in his behalf.

• After having considered the evidence outlined above, as well as the other evidence in the record, we have concluded that the evidence does not sustain the verdict and judgment.

The burden of proof was upon the plaintiff to establish a definite, dependable beginning point upon the boundary line, as alleged by him. The beginning point alleged to be at Moore’s northeast corner was never established upon the ground. The surveyor testified that it could not be located upon the ground. There were no field notes in Moore’s,deed by which it could be located without a survey of the lines. Moore’s testimony to the effect that a surveyor had established the northeast corner at a place where he pointed out his corner to be, would not establish the corner on the ground, especially in the absence of the introduction of any field notes made by the surveyor at the time. Boyt v. Weiser, Tex.Civ.App., 180 S.W.2d 953.

Since the court and jury was without evidence locating Moore’s northeast corner, and since the judgment fails to tie this corner to any object that an officer executing the writ of possession could identify, without exercising judicial functions, such officer could not in our opinion execute the writ. Cunningham v. Settegast, Tex.Civ.App., 24 S.W.2d 520, 523; Carter v. Webb, Tex.Civ.App., 239 S.W. 630. In other words, the beginning point and corners should be established and marked in such way that there can be no controversy. •Here, the true beginning point was a controverted' issue of • fact. ' The issue’ was not submitted to the jury; but was assumed by the court to begin ’ at Moore’s northeast corner. For this reason, it is our opinion that the judgment adjudicating the location of the line is void because the beginning point has never been properly established. Henderson v. Nelson, Tex.Civ.App., 284 S.W. 318; Main v. Cartwright, Tex.Civ.App., 200 S.W. 847.

Even though it be assumed that the beginning point has been properly established, according to the evidence the plaintiff was fhe only person who made a survey of the south line from the beginning point. Plaintiff was not a surveyor. He testified, however, that he began at Moore’s northeast corner'and went east-'803.22 feet, at which point he .drove á stake. There is no testi-inbny showing -that this cor.nér was ever marked arid laid out on the ground in any other way.' From this point he testified that he ran a line “due 'north” ■ to the road. The point at which the line intersects the toad was riot marked arid therefore we have fl'o 'way of knowing where this point would be. As pointed out before, his surveyor, ‘Louis Miller, did riot survey this line as the boundary line but surveyed the north line of the Brown farm as the boundary line.

In a boundary case the lines must be established and definitely marked upon the ground: • The test'of the sufficiency is whether the identification of the line upon the ground so identifies the land that an officer charged’ with the duty of executing a writ of possession could go upon the ground and without exercising judicial function, ascertain the locality of the line. Based upon the testimony in this record, we believe that the line so established failed to meet this test. Whitmore v. McNally, Tex.Civ.App, 39 S.W.2d 633, 635.

There being no proof of the location upon' the ground of any of the corners, the court could not judicially locate them upon the ground and did not attempt to do so, but merely attempted to follow the pleadings and the verdict. Mere calls for objects without actual location adjudicates nothing and would not assist the officer in executing a writ of possession. It is a fundamental rule in boundary cases that the verdict and judgment should definitely fix' and establish the location of the line in dispute, and ordinarily should do so with reference to some known object concerning the identity and location of which there is no controversy. Of course, the judgment must be based upon the pleadings, verdict and the evidence. We think the evidence in the record before us fails to establish the boundary line where the plaintiff claimed it to be upon the ground. Ball v. McDuffie, Tex.Civ.App, 212 S.W. 844; Cunningham v. Settegast, supra; Hernandez v. Robledo, Tex.Civ.App, 236 S.W.2d 242.

Neither do we believe that it.can be.successfully contended that the judgment can be sustained upon findings in favor of the plaintiff upon his plea of limitations, because if the evidence is insufficient to support the findings locating the south and east boundary on the ground, the evidence would also be insufficient in trespass to try title. The plaintiff having pled what he felt to be a more accurate description of the south and east boundary line than that contained in his deed, had the burden' of establishing those lines upon the ground by legal and competent evidence. This we think he failed to do. In this- connection, his surveyor, Louis Miller, testified as follows :

“Q Mr. Miller, instead of -going that circuitous route from the railroad and following fence lines and deed r.ef-erences to determine, the boundary of the Brown property, why didn’t you just determine the boundary of the Eu-bank property?
“A We made an extensive effort to do that.
“Q You were unable to do that?
“A We were unable to find a beginning place.”

The record leaves no'doubt that plaintiff did not claim or attempt to establish a boundary between the two farms by following the footsteps of the original surveyor. The boundary line claimed and sought to be established by the plaintiff was the line which he sought to establish in trespass to try title based upon his plea of limitations. The issue of location on the ground is an issue of title in such cases. Withers v. Republic National Bank of Dallas, Tex.Civ.App., 248 S.W.2d 271; Johnson v. Johnson, Tex.Civ.App., 275 S.W.2d 146.

Appellant has other assignments of error in his brief, but since those discussed will require reversal, we will refrain from discussing others.

For the reasons above stated, the judgment is reversed and the cause remanded.


text:
    PINKSTON-HOLLAR, INC., Appellant, v. BIG THREE WELDING SUPPLY COMPANY, Appellee.
    No. 16503.
    Court of Civil Appeals of Texas. Fort Worth.
    April 24, 1964.
    Lemon, Close & Atkinson, and R. D. Lemon, Perryton, for appellant.
    Mehl, Williams & Ashley and Carlos C. Ashley, Jr., Fort Worth, for appellee.
   MASSEY, Chief Justice.

Our opinion in this case, filed under date of March 13, 1964, is withdrawn and the following- substituted therefor.

This is an appeal from an order overruling a plea of privilege. The plaintiff, Big Three Welding Supply Company, prevailed, in the matter of venue against defendant, Pinkston-Hollar, Inc., on the latter’s contention that subdivision or exception No. 5, “Contract in writing”, to Vernon’s Ann.Tex.St. Art. 1995, “Venue, general rule”, had application to its suit. The exception gives a plaintiff the right to sue a defendant in the county wherein he has contracted to perform an obligation, either upon ’or by reason of such obligation, if same be in writing.

Upon the hearing of a plea of privilege in a case where a plaintiff’s controverting affidavit raises such a venue issue, the burden of proof is upon the plaintiff. This is so because a plea of privilege is prima facie proof of the .defendant’s right to change venue. In order to sustain venue under subdivision or exception No. 5, it is necessary for the plaintiff to prove by a preponderance of the evidence, under his pleadings, an obligation in writing executed by and binding the defendant to perform the same in the county of the suit. Clark, Venue in Civil Actions, p: 244 et seq., “The Hearing”, § 2, “The Hearing Itself”, and p. 45, “Contract in Writing”, § 6, “Proof Necessary to Sustain Venue”.

At the time assigned for hearing the plea of privilege 'of Pinkston-Hollar, Inc., the said defendant failed to appear and wholly made default. Hearing was conducted, nevertheless, following which, order of the court was entered in which it was recited: “ * * * and the Court having heard and considered such Plea of Privilege and Controverting Plea, and the evidence and argument of counsel thereon and being . of the opinion that the Plea of Privilege should be overruled, it is accordingly ORDERED, ADJUDGED .-and DECREED' that such Plea of Privilege be and the same is hereby overruled.”

There is no statement of facts included in the record on appeal. Therefore we do not know the nature of the evidence to which the Court’s order referred. There are no findings of fact or conclusions of law in the transcript.

.The trial court felt that the plaintiff, Big Three Welding Supply Company, presented sufficient evidence to support the judgment. - Under the circumstances we are bound to presume that there was sufficient evidence. Furthermore we must presume that the trial court found such' facts thereupon as was necessary to support its judgment. We can reverse only for error assigned or for fundamental error.

Attached as an exhibit to the plaintiff’s petition and to its controverting affidavit was an unsigned invoice upon which plaintiff apparently declared as a basis for its right to retain venue in the county of suit under subdivision No. 5. Our original inclination was to view this as an entirety and as the evidence to be considered in the determination of whether plaintiff was correctly asserting its venue right, but upon reflection we have concluded that a proper view of the case should not be so confined. For all we know there was evidence introduced before the court which established that contract in writing which plaintiff alleged. By its first point of error the defendant assumed that the invoice was not aided by other evidence, or that the “contract in writing” alleged by plaintiff was not otherwise proved, and contended that the judgment was erroneous as holding the unsigned invoice as a “contract in writing” within the meaning of the subdivision. As demonstrated by what we have heretofore noted our view of the case should not be confined to the unsigned invoice made an exhibit, hut we are obliged to presume that there was other or additional evidence before the trial court by which its decision found support. The point of error is overruled.

In another point of error the defendant assumes that the trial court erred in overruling- the plea of privilege based upon another invoice which defendant had signed, evidencing an account between the parties. This signed invoice was attached to plaintiff’s pleadings as an exhibit. According to the conclusion of the defendant, only this fact could have been, and was, relied upon by the trial court as furnishing support for the judgment. The defendant assumes that the invoice was the whole of plaintiff’s proof that defendant promised in writing to be obligated upon all other indebtedness which might be or become owing by defendant to plaintiff, language to such effect appearing on the signed invoice. In this we should not be confined to the view taken by the defendant. To say that the trial court necessarily predicated its finding upon the writing of this invoice — by carrying forward the promise thereunder made unto the unsigned invoice — would be to take too narrow a view of the whole case. We are obliged to presume that there was other or additional evidence before the trial court by which its decision found support. The point of error is overruled.

Judgment is affirmed.


author: BARROW, Justice.

text:
    ASSOCIATES INVESTMENT COMPANY, Appellant, v. R. H. TYLER, Appellee.
    No. 14252.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1964.

      Brock, Wright, Waters & Galey, Lubbock, for appellant.
    Oliver & Oliver, San Antonio, for appel-lee.
   BARROW, Justice.

Associates Investment Company, a private Texas Corporation, appeals from an order of a district court of Bexar County overruling its plea of privilege to be sued in Dallas County where its principal place of business is situated. R. H. Tyler averred in his controverting plea, that venue is maintainable in Bexar County under Subd. 23 of Art. 1995, - Vernon’s Ann.Civ.Stats. After a non-jury hearing, the plea was overruled and Associates perfected this appeal.

On December 11, 1962, Associates filed suit in Dallas County against Tyler for the unpaid balance of $177,446.00, allegedly due on three promissory notes executed by Tyler on December 15, 1958, to Equipment Service Company and subsequently assigned to Associates. Associates also sought foreclosure of chattel mortgage liens given as security for these notes, which liens were of record in Pecos County, Texas. Tyler’s plea of privilege to move this suit to Bexar County, where he had resided since 1961, was not controverted by Associates, and on January 4, 1963, the cause was so transferred. On April 8, 1963, Tyler filed a cross-action against Associates, and Associates duly filed this plea of privilege.

The sole question presented by this appeal is whether the cause of action, or part thereof, arose in Bexar County within the provisions of Subd. 23 of the venue statute. A party may sustain venue under this exception if some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, occurred in the county where the suit is brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674; Lambert Corporation v. Martin, Tex.Civ.App., 369 S.W.2d 703; Permian Basin Life Ins. Co. v. Stuart, Tex.Civ.App., 357 S.W.2d 615.

Tyler asserted in his amended cross-action, that the three notes and a deed of trust on land owned by him in Pecos County, given as security therefor, were forgeries and void, and that although Associates knew that said notes and purported deed of trust on his land were forgeries and void, it maliciously, willfully and unlawfully refused to release same and thereby slandered the title to Tyler’s land, to his damage in the sum of $388,355.00. It was further alleged that the libel to the title of Tyler’s land by the claim of Associates that it owned liens against this land, destroyed the credit of Tyler and caused loss of his farming business, to his damage in the sum of $100,000.-00. Tyler further alleged that his credit and reputation in Bexar County were damaged by the continued assertion by Associates of Tyler’s indebtedness on these forged and void notes.

It is settled in this State that.in order for a party to recover in an action for defamation or slander of title, he must allege and prove: (1) the uttering and publishing of the slanderous words; (2) that they were false; (3) that they were malicious ; (4) that he sustained special damages thereby; and, (5) that the person suing possessed an estate or interest in the property slandered. Humble Oil & Refining Co. v. Luckel, Tex.Civ.App., 171 S.W.2d 902; Stovall v. Texas Co., Tex.Civ.App., 262 S.W. 152, writ ref. 114 Tex. 582, 278 S.W. 1115; Leslie v. Western Steel Co., D.C., 202 F.Supp. 27. The claim for slander of his credit reputation is an element of damage in his slander of title. Ward v. Gee, Tex.Civ.App., 61 S.W.2d 555.

Tyler testified that he signed the three promissory notes and chattel mortgages in blank in Reeves County, with the express intention of lending his credit to the extent of only $50,000 to Equipment Service Company, a corporation owned by Billie Sol Estes. -Estes betrayed his confidence and filled in the blank notes so that total liability thereon was $388,355.00. In addition to chattel mortgages on allegedly non-existent irrigation equipment, one of the three notes was secured by a deed of trust on farm land in Pecos County owned by Tyler. The chattel mortgage liens and the deed of trust were all promptly recorded in Pecos County. In February, 1959, Tyler learned of the amounts of the notes when his banker in Pecos County advised Tyler that, because of these notes, the bank could no longer extend credit to him. Tyler contacted Estes and, in reliance upon Estes’ promise to discharge the notes during 1959, he did not complain to Associates, although Tyler knew that the notes had been previously transferred to Associates- by Equipment Service Company. On May 31, 1960, Tyler conveyed his entire interest in the Pecos County land to a third party.

Tyler moved to Bexar County in 1961, and asserts that because these notes and liens, which are recorded in Pecos County, have damaged his credit reputation in Bexar County, a part of the cause of action arose in Bexar County. A similar proposition was rejected by the Supreme Court in Stone Fort Nat. Bank v. Forbess, supra. Forbess had an account with the Stone Fort National Bank of Nacogdoches, Texas, but this bank refused to pay a check which Forbess had given in Randall County. Under banking law this check was payable by the bank at its place of business in Nacogdoches County. The Supreme Court held that since all the transactions with which the bank had any connection had occurred in Nacogdoches County, venue could not be maintained in Randall County, although Forbess lived there and his credit there had been damaged.

Since no part of the transaction, either -creating the primary right or relating to the breach of that right, occurred in Bexar County, the trial court erred in overruling Associates plea of privilege. The judgment of the trial court is therefore reversed and the cause remanded with instructions to transfer Tyler’s cross-action to the District Court of Dallas County, Texas.