author: COLEMAN, Chief Justice.

text:
    Anna Lois O'NEILL, Appellant, v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Appellee.
    No. 16758.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 24, 1976.
    Rehearing Denied Dec. 30, 1976.

      Davidson, Gray & Brimble, Michael T. Brimble, Houston, for appellant.
    Kenneth J. Douglas, Houston, for appel-lee.
   COLEMAN, Chief Justice.

This suit grew out of a bill of interpleader filed by the Connecticut Mutual Life Insurance Company to determine the ownership of the proceeds of certain life insurance policies which it had issued on the life of William C. O’Neill. The insurance company was dismissed from the case with its attorney’s fee and costs. The case was tried to the court without a jury and at its conclusion the trial court entered judgment establishing a trust in the proceeds of the various insurance policies in favor of the three children of William Clark O’Neill and Beverly O’Neill, his divorced wife, thereby finding that Anna Lois O’Neill, the wife of William Clark O’Neill at the time of his death, and the named beneficiary of the insurance policies, had no interest in the policies, or the proceeds thereof.

The first point raised by Anna Lois O’Neill is that the court erred in not awarding the entire proceeds of the insurance policies to her. This point is somewhat duplicitous because appellant then states four reasons why the court erred. Each of these reasons will be considered as a separate point of error.

As her second point of error Mrs. O’Neill asserts that the court erred in his rulings on the evidence and his construction of the divorce decree between William Clark O’Neill and Beverly O’Neill and thus denied appellant a fair trial. This point is made more specific by five sub-points, which we will consider as separate points of error.

At the time of the death of William Clark O’Neill there were in force with the Connecticut Mutual Life Insurance Company five policies of insurance on his life naming Anna Lois O’Neill as beneficiary. The proceeds of these policies amounted to approximately $46,000.00. These policies had been purchased during the marriage of William O’Neill and Beverly Lee O’Neill prior to a divorce between those parties. The divorce decree, which was signed March 6, 1973, recites that “Five (5) insurance policies with Connecticut Mutual Insurance Company with Mr. O’Neill as named insured, shall be changed to make the minor children of the marriage beneficiaries; provided, that Mr. O’Neill shall be listed as owner of said policies and shall pay the premiums on said insurance.”

Copies of the policies issued by the insurance company are attached to the company’s interpleader, and show that at the time the policy No. 2,668,173 in the principal sum of $25,000.00 was issued Beverly O’Neill was named as owner. On November 9, 1973, William O’Neill signed a change of beneficiary form whereby he requested that the primary beneficiary be changed from Beverly L. O'Neill to Anna Lois O'Neill. This form was applicable to all five of the policies.

Mrs. Beverly O’Neill testified that she married William Clark O’Neill on February 15,1951, and that on December 18,1972, the trial of the divorce action began. At that time she and Mr. O’Neill had three living children, two of which were under the age of eighteen years. Kathleen Doris O’Neill was seventeen years of age, Kyle Edward O’Neill was sixteen years of age, and Kevin O’Neill was twenty years of age. Kathleen O’Neill reached the age of eighteen years after the trial began and the judgment of divorce was announced but before the decree was signed. All of the children had reached the age of eighteen years at the time of the death of Mr. O’Neill.

Mrs. O’Neill testified that during the trial of the divorce case Mr. O’Neill told her that he did not intend to remove the children as beneficiaries so long as he had those policies in force. She stated that in connection with that statement she decided to turn the ownership of the policies back to Mr. O’Neill on the understanding that the policies would be kept in force for the children, and that she subsequently did sign over the policies. She also testified that at the time of the divorce the policies had little or no cash value. She testified that she made her decision to transfer the policies to her husband at the time of the divorce because she wanted the children to have the benefit of the policies. It was her intention that Kevin be named a beneficiary in the policies.

A plaintiff, Kyle O’Neill, testified that while he was still a minor and after his mother and father had obtained their divorce he lived with his father and Mrs. Anna O’Neill for a brief time. He said that Mrs. Anna O’Neill told him that the insurance policies in controversy belonged to the three children. She further offered to purchase his interest in the policies. This occurred sometime between October of 1973 and January or February of 1974. At that time he was working and was talking to his father about insurance. His father brought out the policies and showed them to him, and Mrs. Anna O'Neill told him, with his father’s consent, “if you can sign these over to your father we can give you an automobile, and he can do with them what he will, and he will be able to get you an automobile and send you to school and other things, new clothing.”

The following language appears in the divorce decree relating to a property settlement between the parties:

“And it appearing to the Court that the parties have agreed on a division of their remaining property, the Court makes no adjudication with respect to the same except to approve said division as follows:
“1. The Plaintiff, William Clark O’Neill, shall have .
“2. The Defendant, Beverly Lee O’Neill, shall have .
“It further appearing to the Court that certain community assets have been set aside for the use and benefit of the minor children of the marriage it is ordered that said assets be set aside for the use and benefit of said minor children as follows:
“1. . . .
“2. . . .
“3. Five (5) insurance policies with Connecticut Mutual Insurance Company and one insurance policy with American General insurance Company now in force, with Mr. O’Neill as named insured, shall be changed to make the minor children of the marriage beneficiaries; provided, that Mr. O’Neill shall be listed as owner of said policies and shall pay the premiums on said insurance.”

On the 19th Day of February, 1976, the trial court signed and entered his judgment in this cause. In the judgment the trial court recited:

“The trial court, having considered the pleadings, evidence and arguments of counsel, finds that a constructive trust should be impressed upon the insurance proceeds in question based upon a divorce decree between the decedent, William Clark O’Neill, and Beverly O’Neill, awarding the insurance policies in question to the minor children of that marriage. The Defendant Cross-Plaintiff, Kyle O’Neill, was the only minor child at the time the above stated divorce decree was entered and the Court finds that on the basis of that divorce decree a constructive trust should be impressed upon the insurance proceeds in question in favor of the Defendants and Cross-Plaintiffs, Kyle O’Neill, Kathleen O’Neill and Kevin O’Neill.”

The judgment which was entered in the divorce suit contained a recitation that the parties had agreed on a division of certain properties. The language appearing in that decree that “certain community assets have been set aside for the use and benefit of the minor children” makes it appear that the insurance policies were the subject of an agreement between Mr. O’Neill and Mrs. Beverly O’Neill. Mrs. Beverly O’Neill’s testimony is sufficient to establish that the agreement between the parties was that she would sign over the ownership of the policies to her husband and in return he would agree to keep the policies in force for the three children of the marriage. That this was the nature of the agreement is supported to some extent by the testimony of Kevin O’Neill. A parol agreement supported by consideration whereby the owner of an insurance policy agrees to designate and maintain another as a beneficiary of an insurance policy will be enforced even though the owner of the policy violates the agreement by changing the beneficiary in accordance with the rules of the insurance company. Locomotive Engineers’ Mutual Life & Accident Ins. Ass’n v. Waterhouse, 257 S.W. 304 (Tex.Civ.App., El Paso 1923, writ ref.). Leal v. Leal, 401 S.W.2d 293 (Tex.Civ.App., San Antonio 1966, no writ history); Box v. Southern Farm Bureau Life Insurance Co., 526 S.W.2d 787 (Tex.Civ.App., Corpus Christi 1975, writ ref. n.r.e.).

The duty of construing the agreement between Mr. O’Neill and Beverly O’Neill rested on the trial court. He was not bound by that portion of the divorce decree approving the agreement previously reached by the parties. It was his duty to find the real agreement between the parties and the language of the divorce decree was properly considered by him in determining the intent of the parties. The fact that the children were no longer minors at the time of Mr. O’Neill’s death, and that his duty to support his children terminated when they reached respectively the age of eighteen years does not require a judgment different from that rendered by the trial court. Box v. Southern Farm Bureau Life Ins. Co., supra.

Appellant contends that the trial court erred in admitting into evidence a transcript of the testimony taken in the divorce proceeding between William Clark O’Neill and Beverly O’Neill. There may be a question as to whether or not this official transcript of the testimony in the divorce case in Cause No. 911,234 in the Juvenile Court of Harris County, Texas, was admissible. The transcript shows that the court discussed with the parties a possible community property settlement and asked them to agree on a division if it were possible. During this discussion Mr. O’Neill told the court that the policies were in his wife’s name and that he could not change the beneficiaries until she signed them over to him and that Mrs. O’Neill stated she was primarily interested in having them kept in force “for the children” and that she was perfectly willing to sign them over if he would keep them in force for the children and not “change the beneficiary from them.” Mr. O’Neill also told the court “I do not intend to remove my children as beneficiaries as long as I have those policies in force.” The court stated there was a $300.00 cash surrender value but he would let that remain community property.

As a general rule statements received in evidence at a previous judicial proceeding may be admitted upon a subsequent trial as evidence of the truth of such statements where the witness who gave the evidence upon the former hearing is now dead or unavailable, provided the party against whom the evidence is now offered (or someone else claiming under the same right or title) had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is now offered. McCormick & Ray, Texas Law of Evidence, Vol. 1, Sec. 941. The question in this case does not come precisely within the rule quoted. Mrs. Anna O’Neill is claiming in this case under a right given to her by William O’Neill in violation of an agreement made with Beverly O’Neill in open court. The question in this case is whether or not Mr. O’Neill made the statements attributed to him. The official court reporter verified the accuracy of the statement of facts. The trial court did not err in admitting the statements. See Maryland Casualty Co. v. Lee, 165 S.W.2d 135 (Tex.Civ.App., Galveston 1942, writ ref.); Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740 (Div. 1, 1942).

The trial court refused to admit into evidence certain business records maintained by Connecticut Mutual with reference to the policies of insurance. The court also refused to allow Anna O’Neill to produce evidence concerning the outstanding debts of William O’Neill. These matters were entirely irrelevant to the issues before the court and there was no error in excluding the evidence.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    Sammy HIGGINS and Hazel Higgins, Appellants, v. DALLAS COUNTY CHILD WELFARE UNIT, Appellee.
    No. 19047.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 29, 1976.
    Rehearing Denied Dec. 16, 1976.

      Sheila O’Connor, Dallas Legal Aid Society, Dallas, for appellants.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, for appel-lee.
   CLAUDE WILLIAMS, Chief Justice.

Sammy Higgins and wife Hazel appeal from a judgment of the juvenile court in favor of Dallas County Child Welfare Unit in which the parent-child relationship between Sammy and Hazel Higgins and their child, Patrick Higgins, was terminated. Judgment was based on a jury verdict which found that Mr. and Mrs. Higgins had knowingly placed and knowingly allowed their son Patrick to remain in conditions and surroundings which endangered his physical well-being and that it would be in the best interest of the child for the parent-child relationship to be terminated. The Higgins base their appeal upon the grounds that: (1) There is insufficient evidence to support the jury’s finding that they knowingly placed or knowingly allowed Patrick to remain in physically dangerous surroundings; (2) there is insufficient evidence to support the jury finding that termination of the parent-child relationship is in Patrick’s best interest; and (3) the court erred in framing the special issues in such a manner as to join both parents in each issue submitted thereby requiring the jury to answer special issues regarding both parents jointly instead of individually. We sustain appellants’ first two contentions, and we reverse the trial court’s judgment and remand the cause for further proceedings.

Sammy and Hazel Higgins were married June 20, 1973, in Houston. They are the parents of two children, Bryan and Patrick. The family has alternated living between Houston and Dallas. Sammy’s employment record has been rather spasmodic. In view of the husband’s irregular employment record, Hazel has been required to work at various jobs. While both parents were employed the children were left in the care and supervision of a neighbor. On November 4, 1973, while the family was living in Dallas, the mother noticed that Patrick has a swelling in both his hands and feet. She took Patrick to Parkland Hospital where he was admitted and his condition was diagnosed as an upper respiratory infection and anemia. Following treatment for this condition, the child was discharged from the hospital on November 14, 1973, at which time he was ambulatory. Patrick was again admitted to Parkland Hospital four days later, on November 18, when his mother noticed that he had a swollen knee. On this admission to the hospital, x-ray pictures were taken of the child's body, and the treating doctor diagnosed his condition as being multiple fractures of both legs in the vicinity of the knees. At that time neither parent offered any explanation of how the fractures had occurred nor gave a history of trauma suffered by the child. Consequently, a diagnosis was made that Patrick was the subject of “a possible battered child syndrome.” He remained at Parkland Hospital until December 7, 1973, at which time he was delivered into the custody of the Dallas County Child Welfare Unit pursuant to court order. He has remained under the temporary managing con-servatorship of this unit until December 15, 1975, when the parent-child relationship was finally terminated.

Dr. Ruth Norman, who became the primary treating physician of Patrick on his second admission to Parkland Hospital, testified that from the examination of the x-rays she determined that Patrick had suffered four fractures. She concluded from her examination that Patrick had no abnormalities which might have caused the bones to break without the application of force. The child, Patrick, was fifteen months old at that time. The doctor testified that she could not tell how or when the fractures occurred. She did not see or examine Patrick on his first admission to the hospital. She stated that, when she first observed Patrick, he did not have a complete range of motion of his legs. She observed Patrick with his parents upon only one occasion at which time he played with his mother while the father discussed the court order with the hospital staff. When asked what reaction the father had concerning the emergency court order placing the child in the custody of the welfare unit, she replied that the father was “upset.” She testified that neither parent actively sought the treating doctor for further consultation about Patrick and that no explanation was ever offered by either parent concerning the child’s condition. In the doctor’s opinion, Patrick seemed to be afraid of men and would become upset if a man approached him.

During the time that Patrick was under the temporary managing conservatorship of the Child Welfare Unit, there were three successive caseworkers assigned to his case. The first caseworker conducted two visits with the Higgins and observed that Mr. Higgins related well with the other child, Bryan, but would have nothing to do with Patrick, and Patrick would have nothing to do with his father. She further testified that the Higgins provided a clean and adequately-furnished home, were cooperative and expressed concern for Patrick’s condition.

The second caseworker informed the Higgins that they needed counseling and that, although Mr. Higgins felt that such was unnecessary, both the father and mother attended three of five sessions at the Family Guidance Center. She testified that Patrick did not always get along with his father but did not show fear of him. She recalled that during one of her visits she noticed Patrick having a good time with both parents. She believed the parents were uncooperative, at least one of the parents had abused the child, and the parent-child relationship should be terminated. However, she could not testify that Patrick was in the possession of Mr. and Mrs. Higgins when he was injured.

In March 1974, Mr. and Mrs. Higgins moved to Houston and were unable to visit with Patrick because of transportation problems. The third caseworker saw Mr. and Mrs. Higgins in Houston. She informed the parents that they should attend the counseling sessions if they wanted Patrick returned to them. Although they attended the sessions, the counselor believed both parents were uncooperative and told them not to return until they wanted to get involved. She testified that Mr. Higgins told her that he had spanked the child with a chopping motion or with the flat of his hand when the child refused to walk. Although Mr. Higgins admits making this statement, he testified that he made it only after the caseworker told him that he would have to confess in order to receive help and to have his son returned.

Mr. Higgins testified that his normal way of disciplining both children was by first warning them and then by hitting them upon the behind with a belt. Mrs. Higgins testified that she sometimes spanked Patrick on the behind but that her husband was primarily responsible for the discipline of both children.

Mrs. Higgins testified that she obtained a job prior to the time that Patrick went into the hospital the first time and that while she was working the children were kept by Betty Sue Bowman, who was a neighbor across the apartment complex. Mrs. Higgins testified that Mrs. Bowman also had two children of her own and that she kept other children for different people. Mrs. Bowman was not called to testify.

Based upon this evidence the jury answered the following special issues which were based upon the requisites of Tex.Family Code Ann. § 15.02 (Vernon Supp.1976).

Special Issue 1

Do you find from the preponderance of the evidence that Hazel and Sammy Higgins had engaged in conduct which endangered the physical well-being of the child, Patrick Higgins?
Answer “We do” or “We do not.”
Answer: We do not.

Special Issue 2

Do you find from the preponderance of the evidence that Hazel and Sammy Higgins have knowingly placed the child Patrick Higgins in conditions or surroundings which endangered the physical well-being of the said Patrick Higgins? Answer “We do” or “We do not.” Answer: We do.

Special Issue 3

Do you find from the preponderance of the evidence that Hazel and Sammy Higgins have knowingly allowed the child Patrick Higgins to remain in conditions or surroundings which endangered the physical well-being of the said Patrick Higgins, if he was in them?
Answer “We do” or “We do not.”
Answer: We do.
In regard to special issue number 4, you are instructed that if you have answered special issue numbers 1, 2 and 3, or any of them in the affirmative then answer the following special issue number 4; otherwise do not answer special issue number 4.

Special Issue 4

Do you find from the preponderance of the evidence that termination is in the best interest of the child Patrick Higgins?
Answer “We do” or “We do not.”
Answer: We do.

It is important to note that the jury found, in answer to special issue number 1, that Sammy and Hazel Higgins did not personally engage in conduct which endangered the physical well-being of the child. It is also important to note that no attack is made upon this finding. Therefore, the principal question remaining before us is whether the Dallas County Child Welfare Unit met its burden by establishing by a preponderance of the evidence that the Higgins knowingly placed or knowingly allowed Patrick to remain in conditions or surroundings which endangered his physical or emotional well-being.

Before addressing the question of insufficiency of the evidence, as contended by the Higgins, we deem it necessary to consider the applicable statute, Tex.Family Code Ann. § 15.02(1)(D) and (E) (Vernon Supp. 1976). This statute is entitled “Involuntary Termination of Parental Rights” and the relevant subsections of the statute are as follows:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
and in addition, the court further finds that
(2) termination is in the best interests of the child. [Emphasis added.]

Although the legislature, when enacting the new Family Code, did not continue to use the terminology of the prior statutes by referring to a “neglected child” and “dependent child,” we do not believe the legislature intended to repudiate the concept of child neglect. By reading the applicable provisions of the Family Code in light of this concept, we have come to the conclusion that subdivision (E) concerning engaging in conduct or knowingly placing the child with persons engaging in conduct was clearly intended by the legislature to be a provision concerning something more than neglect, namely aggressive behavior toward a child resulting in physical or emotional abuse.

On the other hand, the provision of the code, subdivision (D) concerning knowingly placing or knowingly allowing a child to remain in dangerous conditions or surroundings, shows the legislative intent to protect a child in the situation where a parent knowingly neglects it by exposing it to conditions or surroundings resulting in physical or emotional harm. We believe that this interpretation of the two subdivisions explains the rationale of the legislature in separating the two grounds for termination into two separate subsections. If the legislature had intended for both subsections to cover the same evil, there would be no logical reason for separating them into two distinct grounds. Therefore, we hold that subsection (D) is applicable where the child has been neglected while subsection (E) is applicable where the child is subjected to aggressive conduct by a person causing physical or emotional abuse.

The Higgins assert that the appel-lee-agency is required to prove its allegations under either subsections (D) or (E) by “a clear and convincing evidence standard” in order to terminate a parent-child relationship. The appellee-agency, on the other hand, contends that not only should the standard of proof be equal to a preponderance of the evidence but also that the doctrine of “res ipsa loquitur,” applied in tort law, should also be applied to the burden of proof in this type of case.

Sufficiency of Evidence

The application of res ipsa loquitur to child abuse and child neglect cases is a question of first impression in Texas. In some jurisdictions this doctrine has been adopted by statute. Some courts have applied it without express statutory authority. In re S, 46 Misc.2d 161, 259 N.Y.S.2d 164, 165 (Fam.Ct.1965); see also Brown, Medical and Legal Aspects of the Battered Child Syndrome, 50 Chi-Kent L.Rev. 45, 70 (1973). Learned commentators have pointed out that in many such cases the only proof available is circumstantial evidence since abusive actions usually occur within the privacy of the home, the child is either intimidated or too young to testify, and the parents tend to protect each other. Fraser, A Pragmatic Alternative to Current Legislative Approaches to Child Abuse, 12 Amer.Crim.L.Rev. 103, 117 (1974), and 50 Chi-Kent L.Rev. 45, 70 (1973).

Without necessarily adopting the doctrine of res ipsa loquitur with all of its implications in the law of torts, we agree that circumstantial evidence may be sufficient to establish child abuse or child neglect within § 15.02. Accordingly, we hold that a fact finding that parents either abused a child or knowingly allowed it to remain in dangerous conditions may be supported by evidence of (1) multiple injuries or other serious impairment of health that ordinarily would not occur in the absence of abuse or gross neglect, and (2) the parents’ control over the child during the period when the abuse or neglect is alleged to have occurred. Lack of any reasonable explanation by the parents of the child’s condition is an additional circumstance that may be considered in support of such a finding. The elements of proof above enumerated are not to be considered to be exclusive proof of other facts and circumstances to raise the issue of child abuse or neglect. See generally Paulsen, The Legal Framework for Child Protection, 66 Colum.L.Rev. 679, 697-703 (1966).

In the present case, we are not convinced that the evidence is factually sufficient to support the jury’s findings. The proof is weak with respect to both injuries and the parents’ control. The injuries found, if properly proved, together with the father’s admission that he had disciplined the child by striking him on the legs, might have supported a finding that he had engaged in conduct which endangered the physical welfare of the child, but the jury refused to find that both he and the mother had engaged in such conduct. The findings that the parents knowingly placed the child in conditions or surroundings which endangered his well-being and that they knowingly allowed him to remain in such conditions or surroundings must rest on other evidence. Proof of the injuries themselves is somewhat unsatisfactory. No cuts or bruises were observed on the child’s body. The attending physician testified that the child’s knee was swollen and that she determined from the x-rays that he had suffered four fractures, but she was unable to say how or when the fractures had occurred. Only four days before admission to the hospital, the child had been discharged from the same hospital after ten days of observation and treatment, but no fractures were then detected. The record is not clear as to whether the injuries occurred in the four days intervening or as to who cared for the child in this period. Although the record suggests that both parents were working and that the child was left during part of this period with a neighbor who kept other children and had two of her own, the neighbor was not called to testify concerning her knowledge of the child’s condition. No evidence was offered tending to show that conditions in the neighbor’s household endangered the child or that the parents knew of any unsafe situation there. We conclude, therefore, that the evidence is factually insufficient to support the findings that the parents knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical well-being. This decision should not be interpreted as a holding that the evidence is legally insufficient to raise a jury question. Neither should it be taken as establishing the quantum of proof required in a case involving conservatorship rather than termination of the parent-child relationship.

Standard of Proof

We cannot agree with the Higgins’s contention that the burden was upon the agency to establish its allegations by “clear and convincing evidence” rather than by a “preponderance of the evidence.” The legislature has expressly provided in Tex.Family Code Ann. § 11.15 (Vernon 1975) that proof of the facts by a preponderance of the evidence is a sufficient standard in cases for parent-child relationships terminations. Consequently, the agency should only be required to adhere to that standard. Ervin v. Wichita County Family Court Services, 533 S.W.2d 947, 950 (Tex.Civ.App. — Fort Worth 1976, no writ). See also Magallon v. State, 523 S.W.2d 477, 479 (Tex.Civ.App.— Houston [1st Dist.] 1975, no writ).

Since the case must be reversed because of the insufficiency of the evidence and the cause remanded to trial again, we take note of two contentions advanced by appellant.

Special Issues Submission

The Higgins complained of the method of submission of special issue numbers 2, 3 and 4 in that, as the issues were framed, the husband and wife were improperly joined together. They argue that the court should have submitted the issues, if at all, in such a manner as to inquire about acts and conduct of each parent separately. Although the Higgins failed to object to the court’s charge concerning the method of submission as required by Tex.R.Civ.P. 273, we address this argument in view of our remand of the case for another trial. We hold that each parent should have his or her rights submitted separately to the jury in a termination proceeding. Tex.Family Code Ann. § 15.02 (Vernon Supp.1976), when referring to the child’s parents, consistently states “parent” with one exception and in another subsection not relevant to this opinion. Tex.Family Code Ann. § 15.05 (Vernon 1975) also addresses the situation where the court terminates the parent-child relationship with respect to both parents or to the only living parent and gives the court guidance as to further action. If the legislature had meant for both parents to stand or fall together in a termination proceeding it would have so stated. However, in § 15.02, the legislature consistently referred to parent as a singular noun, and the legislative intent can only be interpreted to mean that each parent should be allowed to defend his or her own case and to ask the jury through a separate special issue about his or her parent-child relationship. Also, we hold that a separate submission of the special issue concerning each parent is required because we believe that the best interest of the child is not achieved when special issues are submitted to the jury in such a manner as to require it to refuse to terminate the parent-child relationship of both parents when it is convinced that one parent has abused or neglected the child and only that parent’s rights should be terminated. Moreover, we note that the jury in the case at bar answered special issue number one negatively, and it is impossible to determine if the jury answered the issue in such a manner because its joint submission concerning both parents restricted the jury to this finding even though it might have believed that one parent had actually engaged in the alleged conduct.

Probably, in most cases, only one of the parents has been actively abusive. If the evidence, circumstantial or otherwise, is sufficient, the issues should be submitted so that the jury may find that one parent has engaged in conduct that endangered the physical well-being of the child, and that the other parent has knowingly allowed the child to remain in conditions that endangered its well-being. Here, the jury had no opportunity to make such a finding, although there was some evidence that one of the parents had been actively abusive.

Admissibility of X-Rays

Also, the Higgins argue that the trial court erred in admitting the x-rays allegedly made of the child, Patrick, as well as all related portions of the treating doctor’s testimony based on such x-rays over their timely objection. In order to lay the predicate for the admission of the x-rays into evidence the agency presented a witness who was a radiological technician not employed at Parkland at the time the x-rays were taken and who did not actually know the technician that took the x-rays. This witness testified that he could identify the x-rays as being those of Patrick by “photo-flash.” However, there was no explanation in the record as to what is meant by this term. Neither did the agency comply with Tex.Rev.Civ.Stat.Ann. art. 3737e, §§ 6 and 8 (Vernon Supp.1976) concerning the introduction of hospital x-rays into evidence. Consequently, the x-rays were improperly admitted and cannot be considered as evidence of probative force. Travelers Insurance Co. v. Williams, 355 S.W.2d 728 (Tex.Civ.App. — Beaumont 1962, writ ref’d n.r.e.); Hartman v. Maryland Casualty Co., 417 S.W.2d 640, 652 (Tex.Civ.App. — Waco 1967, no writ); Community Chapel Funeral Home v. Allen, 499 S.W.2d 215, 216 (Tex.Civ.App. — Beaumont 1973, writ ref’d n.r.e.); see also Brown, Medical and Legal Aspects of the Battered Child Syndrome, 50 Chi-Kent L.Rev. 45, 74 (1973). Upon another trial, if these x-rays are offered, they should be presented in accordance with the established rules.

The judgment of the trial court is re-'1^”5ed and the cause is remanded to the juvenile court for further proceedings. This order does not affect the temporary managing conservatorship of the Dallas County Welfare Unit.

Reversed and remanded.

      . The doctrine of res ipsa loquitur is that a rebuttable presumption that the defendant was negligent arises upon proof that the instrumentality that caused the injury was in defendant’s exclusive control, and that the accident was one which ordinarily does not occur in the absence of someone’s negligence. See generally Prosser, The Law of Torts §§ 39-40 (4th ed. 1971); Restatement (Second) of Torts § 328D (1965).

      . N.Y.Jud. — Fam.Ct.Act § 1046(a)(ii) (McKinney 1975); Conn.Gen.Stat.Ann. § 17-38a(f)(4) (West 1973); and R.I.Gen.Laws § 40-11-7 (Bobbs-Merrill Supp.1975).


author: CHADICK, Chief Justice.

text:
    Jack BARRON and wife, Ina Barron, Appellants, v. Mrs. Charles PHILLIPS et al., Appellees.
    No. 8453.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 30, 1976.

      J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellants.
    G. Brockett Irwin, Longview, for appel-lees.
   CHADICK, Chief Justice.

This is a temporary injunction case. After a hearing in the court below, the trial judge denied relief. The judgment of the trial court is reversed and the case is remanded with instructions and temporary injunction, as prayed, is granted by this Court, pending issuance of this Court’s mandate and the grant of relief by the trial court in accordance with instructions.

I

W. R. Pillion and Totsie Pillion, husband and wife, owners of an 8.93 acre tract of land in the John N. Robertson Survey of Marion County, Texas, conveyed a part thereof to Jack and Ina Barron, husband and wife. Conveyance was by warranty deed dated August 12, 1974, in which two tracts were described. The description of the first tract of land has a call “to a stake in said line for corner, said corner being on the West end or side of a 25 foot wide street or access road;” followed by this call, “Thence North 472.8 ft. with the West edge of said road to a stake for corner, same being the SEC of a 67/100 acre tract; . ”. The second tract description contained a call for a corner “same being on the East side of a 25 foot wide road or street;” followed by this call, “Thence South 113.7 feet with the East edge of said road to a stake for corner; . . .”.

In the course of negotiations between the parties to the deed a plat of the 8.93 acre tract owned by the Pillions was exhibited by them to the Barrons. A reproduction of this plat, reduced in size, is incorporated herein as Exhibit 1. Though not described by lot numbers, the first tract conveyed describes the area of Lots 5, 6, 7 and 8 as they appear on the plat and the second tract describes the area of Lot 2 shown by the plat. The plat plainly depicts a 25 foot wide North-South strip running the length of the 8.93 acre tract separating Lots 1, 2, 3 and 4 from Lots 5, 6, 7, 8 and 9 and forming a boundary to one side of each lot. There is evidence the lots and access strip were staked off on the ground. The testimony is in agreement that the Pillions showed the plat to the Barrons as well as the staked subdivision, and that Mr. Pillion agreed to open the strip for access purposes and paid part of the expense of clearing, grading and making the strip suitable as a road. Shortly after the conveyance, the Barrons moved a mobile home onto the area represented by Lots 5 and 6 on the plat and erected a shop on Lot 8. Thereafter the strip was continuously used by the Barrons as an avenue of ingress and egress. After conveyance to the Barrons, the Pillions continued to operate a motel on Lot 1 and lived in a house nearby.

On the 21st day of June, 1976, the Pillions conveyed by metes and bounds description platted Lots 1 and 9 to Charles M. Phillips and Dewana Virginia Phillips, husband and wife. Conveyance was by warranty deed in which a vendor’s lien was retained. The deed described two tracts. In the first tract’s description there is a call for corner “same being on the East end of a 25-foot wide street” followed by this call, “Thence South 166.5 feet with said street to a stake for corner, same being the NWC of Lot No. 2 of the ‘Lake O’ The Pines Addition’; ”. The second tract’s description had a call for a corner “on the West edge of a 25-foot wide street, and said corner being at the NEC of Lot No. 8 of the ‘Lake O’ The Pines Addition’;” followed by this call, “Thence North 196 feet with the WBL of said street to a stake on the SBL of Quasi-Public Road; ”.

The evidence is not clear but it appears that sometime after the Phillipses purchased the two lots from the Pillions, the Phillipses placed a trailer house in such a position that it either partially encroached , upon or completely blocked the North end of the access road shown by the plat and household sewage water was discharged thereon, but apparently the Barrons managed to continue to use the strip for ingress and egress although the discharged water, created a mud problem. Three or four days before this suit was filed, Mrs. Barron found the North end of the access road completely blocked and a sign saying “Private Property”. Mrs. Phillips told her the road was private property and to stay out, threatening to sue Mrs. Barron and make her sorry if she used the road. A huge tree trunk was placed across the road and later the road was bulldozed to render it unusable and six or seven more tree trunks were placed in the area between Lots 1 and 9 as an impediment to the street’s use. This effectively blocked the use of the access road as a way to and from the Barron property. Suit was filed October 19, 1976, and on the next day, October 20, 1976, the Pillions conveyed by warranty deed to the Phillipses the North end of the 25 foot access strip that lies between and had theretofore separated Lots 1 and 9.

II

In this case, as in all temporary injunction eases, the issue presented on appeal is whether the trial court abused its discretion in issuing or refusing a writ. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); 31 Tex.Jur.2d, Injunctions, Sec. 37, p. 89. The question turns, in this instance, on whether the Barrons showed themselves entitled to injunctive relief as a matter of law. 31 Tex.Jur.2d, Injunctions, Sec. 36, p. 88. Though all evidence adduced cannot well be set out, this Court is satisfied the material facts are undisputed and that under settled law the Barrons were entitled to the relief prayed.

III

The early case of Oswald v. Grenet, 22 Tex. 94 (1858) set the general course of Texas law as it now pertains to private easements by estoppel, saying:

“. . . when once a way, street, etc., has been laid out on the soil, or on a map, and property has been purchased in reference thereto, the resumption of the street, or way, by the proprietor, would be an act of bad faith, and a fraud upon any interests acquired upon the faith of it being left open. Hence, it operates as an estoppel in pais of the owner, from exclusive use of the property, or indeed any use, which is inconsistent with the public use, to which it has been dedicated.”

Development of the law may be traced through Harrison v. Boring, 44 Tex. 255 (1875); Lamar County v. Clements, 49 Tex. 347 (1878); Spencer v. Levy, 173 S.W. 550 (Tex.Civ.App. Austin 1915, writ ref’d); Dallas Cotton Mills v. Industrial Co., 296 S.W. 503 (Tex.Com.App.1927); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962), and Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966). The rule is now established that a vendee who purchases a lot with reference to a map or plat showing an abutting street acquires a private easement in such street regardless of whether it had even been opened or dedicated to the public. The vendee by virtue of the private easement has the right to keep the street open and to make reasonable use thereof.

IV

The rule as stated in Oswald v. Grenet, supra, and restated in many of the later cases does not require that the map or plat depicting a street or way be recorded or that it be referred to in the description of the land conveyed. In this instance, the vendor and vendee agreed that the Lake O’ The Pines Addition plat was exhibited as a part of the sales negotiations between the Pillions and the Barrons. Oswald v. Grenet, supra, stands for the proposition that if the natural inference to be gained from the plat is that the way shown was to be left open as a way for public use it constituted a representation to that effect. The Pillions also acknowledged the nature of the twenty-five foot strip in the deeds both to the Barrons and the Phillipses. These references in the deeds are probably sufficient to show an implied dedication of the strip to the public but this opinion will not be lengthened by a discussion of that theory. It is sufficient to say that under this record the Pillions and those in privy with them, the Phillipses, are estopped to deny the Barrons the use of the strip as a roadway.

V

Disposition of this appeal will follow the pattern set by Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1961), and Guerra v. McClellan, 243 S.W.2d 715 (Tex.Civ.App. San Antonio 1951, Mand. Overr.). As the previous discussion indicates, the Barrons, under settled law and undisputed facts, were entitled to a temporary injunction as a matter of right at the time the case was heard in the District Court. The judgment of the trial court is reversed and the case remanded to it with instructions that the temporary injunction prayed for be granted. In conformance with the procedure outlined in Guerra v. McClellan, supra, and Tex.R.Civ.P. 434, a temporary restraining order, as prayed, is granted by this Court. The relief granted shall be effective until the mandate of this Court is received by the court below and relief there granted in accordance with the instruction herein. The relief granted by this Court will require Mrs. Phillips to remove obstructions from the access road and order her to desist from damaging the road or obstructing the Barrons from using the road; the writ here granted will issue upon the Barrons filing a bond in the sum of $5,000.00 that complies with the provisions of the law and the rules of civil procedure.

CORNELIUS, J., not participating.

EXHIBIT 1


author: NYE, Chief Justice.

text:
    In the Matter of the ESTATE of Howard PAGE, Deceased.
    No. 1119.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 30, 1976.
    Rehearing Denied Dec. 30, 1976.
    William W. McNeal, Luling, Ned Kinkier Handly, Newton, Handly & Williams, Bee-ville, for contestant.
    Richard E. Rudeloff, Beeville, for proponent.
   OPINION

NYE, Chief Justice.

This is an appeal from the Order of the District Court of Bee County admitting an instrument to probate as the Last Will and Testament of Howard Page, Deceased. The parties by joint motion transferred the Proponent’s application for probate of the instrument to the district court in accordance with the Texas Probate Code, Section 5 (1975). At the conclusion of the trial, the court ordered the Will admitted to probate and filed findings of fact supporting its Order. It is from this Order that the Contestant Gwendolyn Page Vance has duly perfected her appeal.

The document in question was dated June 11, 1958, and was signed by the Testator, Howard Page. It was witnessed by the Honorable Reese D. Wade, who was a practicing attorney in Bee County, and by a Pat Dudenhoeffer. Page died December 28, 1972.

When the case was called for trial, the Proponent’s attorney announced that he would prove up the Will under Section 84 of the Texas Probate Code, because the Honorable Reese D. Wade (one of the attesting witnesses) was dead and that Pat Duden-hoeffer no longer resided in Bee County and her exact whereabouts were not known.

Section 84(b) of the Probate Code provides, in part, that an attested Will which is not self-proved may be proved up by one of several methods. First, it may be proved by the sworn testimony or affidavit of one or more subscribing witnesses. Second, if all witnesses are non-residents of the county or are unable to attend the hearing, then the Will may be proved by the sworn deposition of said witnesses; or, if no opposition in writing to the Will is filed, by the sworn testimony or affidavit of two witnesses to the signature of the witnesses or of the Testator; or, if it can be shown that only one witness can be found, then by the testimony of one witness to the signature or handwriting of the witnesses and the Testator. Third,

“(3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.”

Section 88(b) of the Probate Code provides that:

“(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the satisfaction of the court:
(1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least eighteen years of age, or was or had been lawfully married, or was a member of the armed forces of the United States or of the auxiliaries thereof, or of the Maritime Service of the United States, and was of sound mind; and
(2) If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and
(3) That such will was not revoked by the testator.”

Evidence was admitted concerning the authenticity of the signatures of the Will. The Proponent’s attorney testified that he was familiar with the signature of both Reese D. Wade and Howard Page and that the signatures on the Will were those of Mr. Wade and Mr. Page. Next, Edwin A. Diebel, Senior Vice President and Trust Officer of the Commercial National Bank in Beeville, took the stand and testified that he was familiar with the signatures of both Reese D. Wade and Howard Page. He testified that the signatures on the Will were genuine and that they were those of Reese D. Wade and Howard Page. Both witnesses testified that they did not know anyone by the name of Pat Dudenhoeffer, who was living in Bee County. The trial court took judicial notice of the death of the Honorable Reese D. Wade, who was admitted to be the late brother of the trial judge. The Will was then admitted into evidence.

The trial court found that the Testator had executed the Will with the formalities and solemnities and under such circumstances as by law so required in order to make it a valid Will and that said Will was not revoked by the Testator. In particular, the trial court found that the Testator was of sound mind, and was at least nineteen at the time of the execution of the Will; that the Will was subscribed and attested by two witnesses, one deceased and the other a non-resident of the county whose address and whereabouts were unknown; and that the signatures of Reese D. Wade and Howard Page appearing on the Will were in fact the signatures of Reese D. Wade and Howard Page.

The Contestant in her points of error 1-8 complains of the action of the trial court in admitting the Will to probate, claiming that the evidence concerning proper execution was totally insufficient under Section 84 of the Probate Code. The Contestant argues that since the Proponent failed to prove that Pat Dudenhoeffer was dead or that she was in the armed forces, proper execution of the Will was not demonstrated. The Contestant further argues that there was no evidence as to the age of Pat Duden-hoeffer nor was there evidence that either of the subscribing witnesses subscribed their name to the Will in the presence of the Decedent. In effect, the Contestant says that the requirements of Section 84 are mandatory and not permissive. We disagree.

The requirements of Section 84 of the Probate Code are not mandatory. To begin with, Section 88 of the Code states that the applicant must prove up the Will “. . .to the satisfaction of the court.” Section 84(b) provides that if the Will is not self-proved, it “. . . may be proved” in the aforementioned manner. See Noel v. Orr, 418 S.W.2d 690 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). The Courts of this State have uniformly held that proof other than that set out by statute may be used to prove up a Will. Hopf v. State, 72 Tex. 281,10 S.W. 589 (1888); Noel v. Orr, supra; Massey v. Allen, 248 S.W. 1067 (Tex.Com.App. — 1923, judgm’t adopted). However, before any secondary evidence of the proper formalities of a Will may be offered, the Proponent must first account for the witnesses and offer some reason for their failure to appear and offer primary evidence of the validity of the Will. Aschenbeck v. Aschenbeck, 62 S.W.2d 826 (Tex.Civ.App.— Austin 1933, writ dism’d); In re Estate Simms, 442 S.W.2d 426 (Tex.Civ.App. — Tex-arkana 1969, writ ref’d n. r. e.); Jones v. Steinle, 15 S.W.2d 165 (Tex.Civ.App. — Austin 1929, no writ). This was done by the Proponent. It was conclusively established that the witness Reese D. Wade was dead and that Pat Dudenhoeffer could not be located. It was, therefore, permissible for the Proponent to proceed with secondary evidence as to the validity of the Will. The Proponent presented the testimony of two witnesses who identified the signatures of the Testator and of one of the witnesses as authentic.

The Proponent put the Will itself into evidence which contained the following attestation clause: “The foregoing (will) was on this date signed by Howard Page, in our presence, and in the presence of each of us, and at the time of his subscribing said instrument, he declared that it was his will and at his request in his presence and in the presence of each other, we have subscribed our names as witnesses hereto on the 11 day of June, 1958.

/&/ Reese D. Wade

/s/ Pat Dudenhoeffer”

It is a settled principal of law in this State that where there is no primary evidence of proper execution, the attestation clause constitutes some evidence of proper publication. Wilson v. Paulus, 15 S.W.2d 571 (Tex.Com.App. — 1929, holding approved); Jones v. Whiteley, 533 S.W.2d 881 (Tex.Civ.App. — Fort Worth 1976, writ ref’d n. r. e.); Nichols v. Rowan, 422 S.W.2d 21 (Tex.Civ.App. — San Antonio 1967, writ ref’d n. r. e.); Reese v. Franzheim, 381 S.W.2d 329 (Tex.Civ.App. — Houston 1964, writ ref’d n. r. e.); Seydler v. Baumgarten, 294 S.W.2d 467 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.). See also Massey v. Allen, supra; Ludwick v. Fowler, 193 S.W.2d 692 (Tex.Civ.App. — Dallas 1946, writ ref’d n. r. e.). The statements in the attestation clause raise a rebuttable presumption of proper execution. Wilson v. Paulus, supra; Jones v. Whiteley, supra; Nichols v. Rowan, supra; Seydler v. Baumgarten, supra. The Contestant offered no evidence of improper execution. We hold that there is sufficient evidence to support the trial court’s finding of proper execution. The Contestant-appellant’s points of error 1 — 3 are overruled.

In points of error 4-7, the appellant contends through no evidence, insufficient evidence and against the great weight and preponderance of the evidence points of error, that the trial court erred in finding that the Will was not revoked. In a Will contest instituted prior to admission of the Will to probate, the Proponent has the burden of proving the Will has not been revoked. Section 88(b)(3), Tex.Prob.Code Ann. (Supp.1976); Ashley v. Usher, 384 S.W.2d 696 (Tex.Sup.1964); Brackenridge v. Roberts, 114 Tex. 418, 270 S.W. 1001 (1925); Jones v. Whiteley, supra; Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.); Huckaby v. Huckaby, 436 S.W.2d 601 (Tex.Civ.App. — Houston [1st Dist.] 1968, writ ref’d n. r. e.); Stewart v. Long, 394 S.W.2d 25 (Tex.Civ.App. — Dallas 1965, writ ref’d n. r. e.); Turner v. Turner, 384 S.W.2d 195 (Tex.Civ.App. — Tyler 1964, no writ); Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464 (Tex.Civ.App. — Dallas 1956, writ ref’d n. r. e.). Once it is proven that a Will is otherwise valid and has been executed with the requisite formalities and solemnities, a rebut-table presumption of continuity is recognized and it is not necessary for the Proponent to produce direct evidence of non-revocation in the absence of evidence of revocation. May v. Brown, 144 Tex. 350, 190 S.W.2d 715 (1945); Ashley v. Usher, supra; Jones v. Whiteley, supra; Wilson v. Paulus, supra; Farr v. Bell, supra; Mayo v. Mattiza, 480 S.W.2d 9 (Tex.Civ.App. — Corpus Christi 1972, no writ).

In this case, the Contestant attempted to raise the issue of revocation through the deposition testimony of the Testator’s mother, Riney Lue Page. Mrs. Page testified that her son (the Decedent) told her he had made a Will. She also testified that this Will gave his land to his daughter Gwen Vance and to his son Michael Page. This particular disposition is somewhat inconsistent from the disposition in the Will that was admitted to probate. The admitted Will gave a life estate in all of the Decedent’s property to the Proponent (the Decedent’s wife), and then divided the land between the Decedent’s children, Gwen Vance and Michael Page and to his stepchild, Dennis DeWitt, equally. The Decedent’s mother, Mrs. Page, testified that the Decedent told her he was not leaving anything to his stepson, Dennis DeWitt. The attorney for the Proponent, the Honorable Richard E. Rudeloff, testified that he had no knowledge that the Will that was offered for probate had ever been revoked. It should be noted that Mr. Rudeloff was not the attorney who drew up the Will that was offered for probate, but he testified that he had performed legal services for the Decedent.

If a Contestant puts on sufficient evidence to rebut the presumption of non-revocation, then the burden of going forward with evidence shifts back to the Proponent who must discharge, by a preponderance of evidence, that the Will was not revoked. Usher v. Gwynn, 375 S.W.2d 564 (Tex.Civ.App. — San Antonio 1964) aff’d Ashley v. Usher, supra. See 17 A.L.R.3rd 596.

Texas Courts recognize a distinction between evidence to raise an issue of revocation and sufficient evidence to show execution of a subsequent revoking Will. May v. Brown, 144 Tex. 350, 190 S.W.2d 715 (1945); Brackenridge v. Roberts, 114 Tex. 418, 270 S.W. 1001 (1925); Corbell v. Koog, 188 S.W.2d 905 (Tex.Civ.App. — Austin 1945, writ ref’d). The Contestant made no attempt to prove up a revoking Will. The evidence of the possible existence of a subsequent Will was offered by the Contestant only to raise an issue of revocation of the Will which was offered for probate by the Proponent.

The trial court found that the Will had not been revoked. It should be noted that the trial judge was the trier of facts and the sole judge of the credibility of the witness and the weight to be given to the witnesses’ testimony. The trial judge was not bound by the testimony of any particular witness and was free to draw his own deductions from all the evidence. Harrell v. Sunylan Company, 128 Tex. 460, 97 S.W.2d 686 (1936); Shaw v. Holmes, 524 S.W.2d 74 (Tex.Civ.App. — Waco 1975, no writ); Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885 (Tex.Civ.App. — Amarillo 1974, writ ref’d n. r. e.); Hendershot v. Amarillo National Bank, 476 S.W.2d 919 (Tex.Civ.App. — Amarillo 1972, no writ); International Security Life Insurance Co. v. Sullivan, 465 S.W.2d 186 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.); Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.); Bennett v. Belton, 436 S.W.2d 161 (Tex.Civ.App. — Fort Worth 1968, writ ref’d n. r. e.); Broden v. Broden, 330 S.W.2d 674 (Tex.Civ.App. — San Antonio 1959, writ dism’d).

The evidence brought out in the trial showed that Mrs. Riney Lue Page, the Decedent’s mother, was antagonistic toward the Proponent. She was of the impression that the Proponent and the Decedent had been divorced and were not married at the time of his death. There was no evidence for a basis for such belief. Mrs. Page’s eye sight was limited. Her hearing was such that she was required to communicate by writing at times, because she was unable to fully understand what people were saying. She admitted that she never did see the alleged subsequent Will. She was unaware of what year or approximately what year was involved at the time the alleged statements were made to her by her son. She stated that she had never discussed her son’s alleged Will with anybody. She said that she had never read such subsequent Will. She conceded that she had misunderstood her son “lots of times.” Her testimony was confusing and disjointed. It is clear to us, as it was to the trial court, that the Contestant’s evidence of revocation through Mrs. Page was far from being persuasive. The Contestant did not establish facts of revocation of the admitted Will to the satisfaction of the trier of facts or to us. There must be substantial evidence of revocation before the presumption of continuity of a will is revoked. May v. Brown, 144 Tex. 350, 190 S.W.2d 715 (1945).

We have carefully reviewed all of the evidence and agree that the evidence was sufficient to support the trial court’s order admitting the Will to probate. Contestant-appellant’s points of error 4-7 have been considered and are overruled.

The judgment of the trial court is AFFIRMED.


text:
    UNITED STATES FIDELITY AND GUARANTY CO., Appellant, v. HUTSON CONSTRUCTION CO., INC., Appellee/Cross-Appellant.
    No. 19035.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 30, 1976.
    Rehearing Denied Dec. 30, 1976.
    Robert M. Greenberg, Greenberg & Bach, Dallas, for appellant.
    W. Mike Baggett, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellee/cross-appellant.
   CLAUDE WILLIAMS, Chief Justice.

United States Fidelity and Guaranty Company and Hutson Construction Company, Inc. both appeal from a judgment of the trial court in favor of Hutson Construction Company, Inc. in the sum of $5,000 against United States Fidelity and Guaranty Company for a theft loss on a builders risk policy of insurance. Appellant United States Fidelity and Guaranty Company (USF&G) seeks reversal and rendition of the judgment because the goods stolen were not in “due course of transit,” as provided by the policy, and, therefore, appellee Hut-son Construction Company (Hutson) was not entitled to recover, as a matter of law. Hutson appeals from the judgment contending that it was entitled to recover a larger amount because of an accord and satisfaction made between the parties. We hold that the record establishes, as a matter of law, that the property in question was not covered by the insurance agreement and that there was no accord and satisfaction between the parties. Accordingly, the judgment of the trial court is reversed and judgment is rendered that Hutson take nothing against USF&G.

The material facts are essentially without dispute. Hutson was the contractor on a project in Paris, Texas. Hutson obtained from USF&G its builders risk insurance policy which expressly provided for limits of liability in the sum of $338,134 in the event the property was lost while at the premises located at Paris, Texas and with the limitation of loss in the sum of $5,000 on property “in due course of transit.” This policy was effective on April 23, 1974, when property owned by Hutson with an actual cash value in excess of $5,000 was stolen from the Hutson warehouse at Duncanville, Texas. The stolen property was copper wiring which Hutson obtained from various sources and transported to its warehouse in Duncanville where it was stored in an identifiable area and intended for use at the construction project in Paris. The wire arrived at the warehouse at various times. Some of it had been in the warehouse as long as three months and some had been there for only a week prior to the theft. As needed, the wire would be removed from the warehouse and transported to the job site in Paris. It is undisputed that Hutson did not obtain insurance coverage on the property while it was stored in the warehouse in Duncanville.

On the basis of this evidence USF&G moved for an instructed verdict on the ground that the undisputed evidence demonstrated that the property in question was not “in due course of transit” at the time of the loss and, therefore, not covered by the policy, as a matter of law. This motion was overruled and the court proceeded to submit the case to the jury on one special issue which inquired whether or not the property in question was in “due course of transit.” The jury answered in the affirmative, and based upon this verdict, judgment was rendered in favor of Hutson and against USF&G in the sum of $5,000. USF&G moved for judgment non obstante veredicto on the same grounds as were assigned in support of the motion for instructed verdict. The court overruled this motion.

It thus becomes apparent that the primary question presented is one of coverage under the policy between USF&G and Hut-son.

Policy Coverage — In Due Course of Transit

The question whether property is “in transit” was presented to the Supreme Court of Texas in 1896 in the case of Amory Manufacturing Co. v. Gulf, C. & S. F. Ry., 89 Tex. 419, 37 S.W. 856 (1896). Chief Justice Gaines drew the distinction between the words “in transit” and the words “in transitu,” as used in a bill of lading covering shipment of cotton which had been lost while stored on a platform of the railway company. The court pointed out that the two terms have a different meaning and that “in transit” means literally in the course of passing from point to point. The court held that the cotton, not having been set in motion towards its destination, was not in fact in transit and was not constructively in transit while on the platform and that to hold otherwise would be doing violence to a well-established canon of construction. Accord, Davis v. First National Bank, 245 S.W. 1009 (Tex.Civ.App. — Texar-kana 1922, writ ref’d).

A very similar question involving the construction of an insurance contract providing coverage for property “in transit” was presented in Simons v. Niagra Fire Insur- ance Co., 398 S.W.2d 833, 834 (Tex.Civ.App. —Fort Worth 1968, no writ). In that case, the policy provided coverage against loss or damage to property while in transit. The property, consisting of quantity of grain, was purchased by the insured, and before delivery to the insured, it was placed in storage in an elevator where a portion was stolen. The court denied coverage under the policy holding that the word transit has a significance of activity, of motion and of direction. Literally it means “in course of passing from point to point.” In holding that the trial court properly construed the insurance contract to cover losses only while the goods were in transit and not while stored in an elevator, the court of civil appeals relied upon Mayflower Dairy Products, Inc. v. Fidelity-Phenix Fire Insurance Co., 170 Misc. 2, 9 N.Y.S.2d 892 (1938); Glenmore Silk Corp. v. Fidelity & Guaranty Fire Corp., 151 Misc. 734, 271 N.Y.S. 174 (1934); Annot., 80 A.L.R.2d 445-55, § 3 (1961); Anno.t, 37 A.L.R.2d 1103, § 16 (1954).

Haggar Co. v. United States Fire Insurance Co., 497 S.W.2d 61, 63-64 (Tex.Civ.App. — Texarkana 1973, no writ), involved a similar policy of insurance protecting the property while “in transit.” When a truck, used in delivering the property to the named insured, arrived at the loading dock of the insured, the warehouse door was locked and the truck could not be unloaded until after the weekend. The goods in question were stolen off the truck while parked at the loading dock and an action was brought against the insurance company on the theory that the property was lost while in transit. The policy of insurance was construed as being ineffective in that according to the facts established, as a matter of law the property was not in transit at the time of the loss. The court pointed out that the act of passing from the point of origin to the destination point, as contemplated by the phrase “in transit,” was completed when the driver parked the trailer at the dock ready to be unloaded. The court expressly refused to follow Gulf Insurance Co. v. Ball, 324 S.W.2d 605 (Tex.Civ.App.— Amarillo 1959, writ ref’d n. r. e.) relied upon by Hutson in this ease.

Gulf Insurance Co. v. Ball, supra, is clearly distinguishable. In that case the goods covered by the insurance policy were in a truck and being transported to destination. While on the highway the truck broke down and the driver sought assistance. Before assistance could be obtained the truck was invaded by someone who stole the property. The court correctly held under those facts that the property was still “in transit” saying that so long as the property is in the course of being delivered to the place to which it is being shipped, it is, in truth, in transit.

The goods in question before us had been delivered to the Hutson warehouse at Dun-canville, Texas, many miles from Paris, Texas, and remained there for a period of from one week to three months. We find no rational basis for the contention that such goods could be said to be “in transit” within the meaning of the terms of the insurance policy between the parties. To hold otherwise would most assuredly create a new contract. Under the plain and unambiguous terms of this policy and under the authorities above cited, we hold that, as a matter of law, the property in question was not covered by the insurance contract and, therefore, the trial court erred in failing to render judgment for USF&G, non obstante veredicto.

Accord and Satisfaction

We now turn to Hutson’s appeal. As an alternative plea, Hutson alleged that, upon initial receipt of the claim by Hutson under the policy of insurance, USF&G issued a check in the amount of $7,581 as its offer of a complete accord and satisfaction of the claim under the policy and that Hutson accepted the terms of the offer by endorsing the check and depositing it to its account. It was alleged that subsequent to the offer and acceptance USF&G, in breach of the accord and satisfaction agreement, stopped payment on the check and refused to honor it. For such alleged breach of the accord and satisfaction agreement, Hutson sought judgment in the sum of $7,581, together with interest and penalty as well as attorney’s fees.

Prior to trial, the court sustained the objection of USF&G to the introduction before the jury of any evidence relating to the alleged accord and satisfaction. During the course of the trial Hutson perfected a bill of exception in which testimony was offered and a stipulation entered which revealed that Hutson had originally made a claim against USF&G in the amount of $9,331.20. Hutson, president of appellee corporation, testified that the claims representative of USF&G offered to settle for “$7,800 something.” Hutson then said that he received a check from USF&G in the sum of $7,581 which he endorsed and deposited. Subsequently, USF&G stopped payment on the check or draft contending that an error had been made in the issuance of such instrument.

While Hutson contends that the trial court erred in not rendering judgment in its favor against USF&G in the amount of $7,581 on the theory of an accord and satisfaction it is apparent from the record that it really takes the position that judgment of the trial court should be reversed and remanded for a new trial because of the failure of the trial judge to allow the evidence relating to accord and satisfaction to be presented to the jury. We reach this position as a result of the argument contained in Hutson’s brief and, accordingly, overrule USF&G’s objection to our consideration of the point because no point of error was assigned.

Our supreme court in Jenkins v. Henry C. Beck Co., 449 S.W.2d 454 (Tex.1969) had occasion to reiterate the essential elements to establish the affirmative defense of accord and satisfaction. The supreme court pointed out that there must be evidence of a new contract, express or implied, in which the parties agreed to the discharge of existing obligations by means of the lesser payment tendered and accepted and that the evidence must conclusively establish that the tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. Accord, Industrial Life Insurance Co. v. Finley, 382 S.W.2d 100 (Tex.1964) and George Linskie Co. v. Miller-Picking Corp., 463 S.W.2d 170 (Tex.1971).

In the case under consideration the admitted maximum that could possibly be recovered by Hutson under the “in transit” coverage of the builders risk insurance policy was the maximum sum of $5,000. The tender by the insurance adjuster for USF&G of a check or draft in the sum of $7,581 was evidently a mistake on the part of the adjuster. Although release of a claim in an amount greater than the sum agreed upon is ordinarily sufficient consideration, there is no consideration if the amount agreed upon is more than the policy limit. Moreover, as we have already held, the policy in question provided no coverage for the loss in question.

In Hodges Food Stores, Inc. v. Gulf Insurance Co., 441 S.W.2d 309 (Tex.Civ.App.— Dallas 1969, no writ), we ruled upon a similar case in which the insurer had paid an amount of money to the insured due to a mistake concerning policy coverage. In that case the policy provided no coverage for the loss in question, but the insurer had paid the full amount of the claim. We held that the insurer was entitled to recover the amount it had paid. Our opinion in Hodges Food Stores, Inc., supra, was followed by the San Antonio Court of Civil Appeals in Singer v. St. Paul Mercury Insurance Co., 478 S.W.2d 579 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.). In that case, as here, the company draft was issued for a loss not covered by a policy and the court denied the plea of accord and satisfaction. To the same effect see our opinion in Benson v. Travelers Insurance Co., 464 S.W.2d 709 (Tex.Civ.App. — Dallas 1971, no writ).

We do not hold that a disputed coverage question cannot be resolved by an agreement to pay an amount within the policy limits if the elements of a new contract are present. Here, however, there was a dispute concerning the limit, if any coverage at all was provided, and the amount of the check was more than the limit. Consequently, the agreement was entirely lacking in consideration.

We overrule all of Hutson’s cross-points of error concerning the theory of accord and satisfaction.

For the reasons stated, the judgment of the trial court is reversed and here rendered that Hutson Construction Company, Inc. do have and recover nothing of and from United States Fidelity and Guaranty Company and that all costs be assessed against Hut-son Construction Company, Inc.


text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Jessie R. COX, Jr., Appellee.
    No. 19033.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 30, 1976.
    Rehearing Denied Dec. 30, 1976.

      Glennis E. Sims, Bailey, Williams, West-fall, Lee & Fowler, Dallas, for appellant.
    Robert P. Woodruff, Woodruff & Ellis, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

In this workmen’s compensation case, Texas General Indemnity Company appeals from a judgment in favor of Jessie R. Cox, Jr. based upon a jury verdict which found that Cox sustained an injury in the course of his employment causing total temporary incapacity followed by a permanent partial incapacity. In two points on appeal, appellant insurer seeks reversal of the judgment on the grounds that the jury’s finding in response to special issues five and seven (being the beginning date and termination date of total incapacity) was against the great weight and preponderance of the evidence. We find no merit in these points and accordingly affirm the judgment.

The material facts are relatively undisputed. Appellee Cox, an employee of East Texas Motor Freight Lines for seventeen years, injured his back on September 6, 1974 while performing tasks in the course of his employment which required heavy lifting. After he was sent to the company doctor, he was given medication and sent home. The following Monday, he was allowed to return to the job but he found that he had difficulty in performing his work because he could barely bend or stoop and encountered extreme difficulty in driving and getting in and out of his truck. He continued to work at his job because of family obligations. When the pain continued, he saw another treating doctor who prescribed muscle relaxers, pain medication, a brace, and traction devices. Under this doctor’s care, on November 1974, he was hospitalized for a myelogram, which caused him to miss two weeks from work because of severe headaches associated with the procedure. Although his pain worsened and affected his legs, Cox continued to work at the same job. Upon advice of his treating physician and another consulting physician, Cox decided to consent to an operation, but the insurer refused to authorize it. Subsequently, Cox consulted with his osteopathic-orthopedic physician who performed an electromyleogram and diagnosed a lumbar-5 nerve root irrigation due to disc herniation which required surgery. He further stated that the injury would result in an inability to do heavy lifting, prolonged bending or stooping. At the time of trial, Cox was required to take off work early because of constant pain. During the trial, two witnesses who worked with Cox testified that since his injury he could not do the work he had done prior to that date although he continued to hold the same position in the company. Both witnesses testified that they helped Cox with his work, especially the heavy lifting, and that they thought his condition was worsening.

The basic thrust of appellant Texas General’s argument is that because Cox continued to hold the same position in the company and, in fact, received pay raises subsequent to his injuries, the jury finding that Cox sustained injury causing total, temporary incapacity on September 1974 to February 5, 1977, in response to special issues five and seven, was against the great weight and preponderance of the evidence and could not, therefore, form the basis of the judgment for total disability.

The trial court correctly defined “total incapacity” in its charge as follows:

“Total incapacity” does not mean an absolute disability to perform any kind of labor, but a person disqualified from performing the usual task of a workman in such a way as to be able to procure and retain employment is totally incapacitated. The term implies disability to perform the usual task of a workman and not merely the usual task of any particular trade or occupation.

Texas General cites numerous cases wherein courts have held that a jury finding of total incapacity, where a workman has worked more or less continuously at the same or similar employment as before the injury, is against the great weight and preponderance of the evidence. Texas Employers’ Insurance Ass’n v. Hawkins, 387 S.W.2d 469 (Tex.Civ.App. — Amarillo 1965, writ ref’d n. r. e.); Texas Employers’ Insurance Ass’n v. Moran, 261 S.W.2d 855 (Tex.Civ.App. — Eastland 1953, writ dism’d); Fidelity & Casualty Co. of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App. — San Antonio 1966, writ ref’d n. r. e.); Texas Employers’ Insurance Ass’n v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App. — Dallas 1958, no writ), and Indemnity Insurance Co. of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App. — San Antonio 1962, no writ). All of these cases involve claimants who sustained back injuries and who either continued to work at jobs demonstrating ability to perform heavy lifting tasks or who were able to obtain similar jobs with the same company or other companies in which they were not required to perform heavy lifting duties. Upon these facts, the courts held that a claimant could not claim total incapacity and yet obtain and retain employment which would exclude such incapacity.

Appellee Cox, on the other hand, argues that the fact that a claimant' resumes work after an injury is merely one of the factors to be considered by the jury. Aetna Insurance Co. v. McDonald, 520 S.W.2d 945 (Tex.Civ.App. — Amarillo 1975, no writ). A finding of total disability is not precluded merely because an injured employee is forced to resume work because of economic necessity. Hartford Accident & Indemnity Co. v. Williams, 516 S.W.2d 425 (Tex.Civ.App. — Amarillo 1974, writ ref’d n. r. e.). If a trial court finds that in the event a claimant should lose his present employment where he is favored by his foreman and fellow employees in the performance of his duties, he would be unable to obtain and retain employment then he is in fact totally incapacitated although in fact he is pursuing his occupation because of economic necessity. National Surety Co. v. Roberts, 217 S.W.2d 894 (Tex.Civ.App.— Beaumont 1949, no writ). A claimant need not show economic loss because of the injury and the fact that he continues to work and earn money is but one fact to be considered in determining capacity to work. American General Insurance Co. v. Bailey, 287 S.W.2d 290, 292 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.).

The principal question before this court is whether Cox’s condition would prevent him from obtaining and retaining permanent employment requiring duties lighter than his present employment which he would be able to perform full time, permanently, and ably. Texas Employers’ Insurance Ass’n v. Vineyard, 316 S.W.2d 156, 160 (Tex.Civ.App. — Dallas 1958, no writ).

Since Texas General Indemnity is alleging factual insufficiency, we are required to look at all of the evidence and determine if it supports the jury verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

A review of all of the evidence shows that Cox has probably sustained disc herniation in his lower back and has nerve root irritation at two levels. Because of his inability to lift heavy objects, to bend or stoop, he is incapable of performing this present job task. Also, because of the acute pain he is unable to perform his auxiliary part time employment of making TV commercials and conducting exhibitions of quick-draw ability with a handgun. Testimony of only one doctor was introduced into evidence. The doctor testified that Cox’s inability to perform his work would continue and become progressively worse, thereby requiring surgery.

We hold that the jury verdict is not against the great weight and preponderance of the evidence. The fact that Cox has continued to work because of economic necessity is only one factor to be considered because the definition of total incapacity does not require that an injured person be reduced to a condition of complete and abject helplessness causing an absolute disability to perform any kind of labor. Accordingly, we affirm the judgment of the trial court.


author: JAMES, Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Ethel C. ISRAEL et vir., Appellees.
    No. 5644.
    Court of Civil Appeals of Texas, Waco.
    Dec. 2, 1976.
    Rehearing Denied Dec. 30, 1976.

      Louis S. Muldrow, Ñaman, Howell, Smith & Chase, Waco, for appellant.
    Leonard L. Gorin and Boyd Mangrum, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a venue matter concerning a slip and fall case. Plaintiff-Appellees Ethel C. Israel and husband Frank Israel brought this suit in McLennan County against Defendant-Appellant H. E. Butt Grocery Co. for personal injuries sustained by Mrs. Israel occasioned by her slipping and falling while a customer in Appellant’s store. Appellant filed a plea of privilege to be sued in Nueces County; whereupon Appellees controverted under subdivision 9a of Article 1995, Vernon’s Texas Civil Statutes. The trial court after hearing overruled Defendant-Appellant’s plea of privilege, from which it appeals. We reverse and render.

Defendant-Appellant was the owner of H. E. B. Food Store No. 8 located in Waco, McLennan County, Texas, said store being a supermarket containing groceries, produce, meat, drugs and other items usually found at stores of this type, together with an adjacent parking lot. On June 20, 1973, Mrs. Israel drove to this store, parked her car on the parking lot, entered the store, and bought some items of groceries, including a case of canned soda water, consisting of twenty-four cans of ten ounces each. Mrs. Israel testified that after she paid for these grocery items, they were placed in a push-cart for convenience in transporting them out of the store to her car on the parking lot. She further testified that the store manager, Mr. James M. Allen, came over to where the push-cart was located at the checkout stand and assumed control of the cart and began pushing it ahead of him, with Mrs. Israel following him as they prepared to leave the store.

The public entrances to this store consisted of two sets of electrically operated doorways, one being on the north side of the front of the store and the other on the south side of the front of the store. The doorway unit by which Mrs. Israel exited on the occasion in question was the one on the north side of the front of the building. When viewed from the outside of the store, the unit consisted of an entrance doorway to the right and an exit doorway to the left of the center post, with a guard rail extending from the center post toward the inside and outside of the door between the exit way and the entrance way. The doors are designed to operate automatically by opening when a person steps on the rubber or vinyl mat, and by closing when a person stops stepping or standing on the mat. Each mat extends a few feet to the inside of the store and to the outside of the store from the threshold, and is bordered by pieces of aluminum trim. The mat is a darker color than the surrounding concrete sidewalk, and is about a half inch higher than the surrounding sidewalk. The aluminum trim is approximately two inches wide surrounding the mat, and is bevelled downward from the edge of the mat to the sidewalk. The aluminum trim is mitred at each corner at 45 degree angles to the strips. The top of the mats were flush with the upper or inner sides of the trim, and the evidence shows that on the occasion in question none of the mats or aluminum strips bordering same were defective, loose, out of place, or projecting above or below their normal, apparent, intended height. Attached herewith are two photographs admitted in evidence showing the double doors in question and the particular doormat upon which Mrs. Israel slipped and fell.

PL. Ex. 1

PL. Ex. 2

This store was opened for business in November 1969, at which time the doors were installed for use, said doors having been situated and operating in the same manner since the opening of the store until June 20, 1973, the date of the occasion in question. In other words, there had been no change in the location and manner of use and operation of these doors from the time the store opened for business, up through the time of the occasion in question. These were sliding doors as opposed to those which swing open and shut on hinges. At the time Mrs. Israel was leaving the checkout stand and proceeding to leave the store, the exit doorway, which would have been the one to Mrs. Israel’s right as she exited the store, was, according to Mr. Allen’s testimony, fixed in the closed position, and a Mr. A1 Looney, a window washer, was stooped or crouched in that doorway washing that door. Mrs. Israel testified that both of the sliding doors were fixed in the open position, but that there was someone crouched down in the exit door blocking that exitway. Seeing this situation, Mrs. Israel went out through the doorway on her left, which was the normal entrance way.

Contrary to Mrs. Israel’s testimony, Mr. Allen testified that he followed behind Mrs. Israel as she went from the checkout stand and out the door, and that he carried the groceries in his arms, by holding the case of canned soda water in his hands with the sack of groceries on top of said case.

Be that as it may, Mrs. Israel observed the person crouched in the normal exit doorway, said she was “kind of hesitant,” and then proceeded on out the doorway on her left, same being the doorway normally used for entering the store. As she crossed the threshold, she veered slightly to her left in the general direction toward where her car was parked. She testified that as she prepared to step off of the rubber or vinyl mat, she placed her left heel down on the mitred corner of the metal stripping, and that her foot slipped off of the corner and out from under her and caused her to fall.

Mr. Allen testified that he was behind Mrs. Israel carrying her groceries in his arms, that he saw her fall but did not observe or know exactly what caused her to fall.

As stated, this store opened for business in November, 1969, and this accident occurred on June 20, 1973. Mrs. Israel testified that she had been a customer and had shopped in this store on an average of once every two weeks prior to her fall, and had done so since the store opened in November, 1969. This means that she had made approximately eighty-six visits to this store at the time of the accident in question. As stated, there had been no changes in the mats and doors from the time of their installation. Mrs. Israel testified that there was nothing to obstruct or obscure her view of the door, the mat, and the surrounding metal strips immediately prior to and at the time of her fall.

Mr. Allen, the store manager, testified that since this store opened for business it has had a customer count averaging 6,000 to 7,000 persons per week, all of whom use the two sets of front doors hereinabove mentioned, and that there had been no falls or accidents on or about the doorways or mats except that of Mrs. Israel. See Seideneck v. Cal Bayreuther Associates, Inc. (Tex.1970) 451 S.W.2d 752.

Under these circumstances, we are of the opinion and hold that Mrs. Israel’s knowledge and familiarity with the conditions that existed concerning the doorway and mat in question charged her, in law, with notice, knowledge, and appreciation thereof.

Ordinarily a plaintiff-invitee cannot recover if he (or she) knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization, and appreciation. Wesson v. Gillespie (Tex.1964) 382 S.W.2d 921; Houston National Bank v. Adair (Tex.1948) 146 Tex. 387, 207 S.W.2d 374; Beall Brothers Inc. v. Benton (Tyler Tex.Civ.App. 1972) 478 S.W.2d 157, no writ; Corley v. Laco Rentals (Waco Tex.Civ.App. 1972) 487 S.W.2d 446, no writ. Also see Adam Dante Corp. v. Sharpe, (Tex.1972) 483 S.W.2d 452, which approves and reaffirms Wesson v. Gillespie, supra.

In the Adair case, the court assumed the dangerous condition was not open and obvious and that the area in which Mrs. Adair fell was not properly lighted. Nevertheless Mrs. Adair had been on the stairs many times, and because of her many exposures to the condition, the court charged her in law with knowledge, realization, and appreciation of the condition. In the Wesson case, where plaintiff had crossed the same threshold two to five times a week for four or five years, under the same premises conditions, the court charged plaintiff in law with knowledge and appreciation of such conditions.

In the case at bar the situation and condition of the doorway, mat, and stripping was static, the defect if any there was, was not latent, and Mrs. Israel had by her own admission been through these doorways many times over of some three and a half years leading up to the time of the accident in question. Under such facts she is charged with knowledge and appreciation thereof as a matter of law.

Mrs. Israel contends that since she was forced to go out the door customarily used for entrance, that the handrail was to her right instead of to her left; and since she fell to the left she had no handrail to grab hold of as she fell. She thereby charges the Defendant with negligence in failing to provide her with a handrail to her left. We overrule this point, because here again she is charged with knowledge and appreciation of this condition. See Houston National Bank v. Adair (Tex.1948) 146 Tex. 387, 207 S.W.2d 374; Beall Brothers, Inc. v. Benton (Tyler Tex.Civ.App.1972) 478 S.W.2d 157, no writ. In both Adair and Benton handrails were absent.

Finally, Plaintiff-Appellees insist that this is not only a “premises conditions” case, but they have alleged and proved acts and omissions of negligence on the part of the Defendant-Appellant and its employees which if true, support the trial court’s judgment. All of the grounds of negligence alleged by Plaintiffs are concerned with premises conditions except the following:

“(a) permitting its employee to obstruct the normal exit doorway, thereby forcing Ethel C. Israel to exit the store by a strange and unaccustomed route;

(f) leading plaintiff Ethel C. Israel out of the entrance rather than the exit doorway.”

On cross-examination Mrs. Israel negated the above-quoted two alleged grounds of negligence, as evidenced by the following excerpt from the statement of facts:

“Q. Was there anything about the fact that you walked out of the store through the door to the left rather than the door to the right that confused you or caused you disorientation or loss or lack of balance or that created or caused difficulty in walking or stepping, any of those things?”

“A. Of course not.

“Q. Okay. Did the fact that there was a man blocking the door to the right, the normal exit door,- was there anything about the fact that he was there that interfered with your negotiating the door to the left? In other words, walking through it?

“A. No.

“Q. Yes. Was there anything about the fact that there was a man blocking the door to the right that had anything at all to do with your fall?

“A. No.”

By the above-quoted testimony Mrs. Israel acquitted the Defendant of negligence in the two alleged grounds hereinabove quoted. All of the rest of Plaintiffs’ pleaded grounds of negligence were directly concerned with premises conditions, regarding which she was charged as a matter of law with knowledge and appreciation thereof, and therefore Plaintiffs cannot prevail upon these grounds.

For the reasons above stated, we hold that Plaintiff-Appellees have failed to establish their right to maintain venue in McLennan County. Since the facts concerning venue appear to have been fully developed, we reverse and render the trial court’s judgment and transfer the cause to Nueces County, Texas.

REVERSED AND RENDERED.


author: AKIN, Justice.

text:
    TOWN PLAZA FABRICS, INC., Appellant, v. MONUMENTAL PROPERTIES OF TEXAS, INC. (successor by merger to Arlington Properties, Inc.), Appellee.
    No. 19087.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 2, 1976.
    Richard F. McMullen, McMullen & Snyder, Dallas, for appellant.
    Joe B. Harrison, Wynne & Jaffe, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from a denial of a temporary injunction which was sought by Town Plaza Fabrics to prohibit its landlord, Monumental Properties, from taking any action to evict it as a tenant or to interfere with its use and enjoyment of the leased premises. Because we hold that appellant failed to show that the temporary writ was necessary to preserve its rights prior to the time that it could obtain a trial on the merits, no abuse of the trial court’s discretion is shown. Accordingly, we affirm. We also dissolve our temporary injunction previously granted appellant pursuant to Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1967).

Appellant operates a retail store in shopping mall premises leased from Monumental Properties. The lease gave the lessor the option to terminate the lease in the event Herb Owens, who was majority stockholder of Town Plaza at the time the lease was signed, sold his majority control. In early 1976, Herb Owens did in fact sell his stock to the current shareholders and, consequently, Monumental notified Town Plaza that it had elected to terminate the lease under its option. Town Plaza filed a declaratory judgment action to construe the lease; it is pursuant to this action that the temporary injunction was sought to prevent Monumental from bringing a threatened forcible detainer action to recover the premises. The record does not, however, disclose whether such an action has been filed.

Before a temporary injunction can be granted, the petitioner must show that it has a probable right of recovery and that it will probably suffer injury unless the injunction is granted. Manning v. Wieser, 474 S.W.2d 448, 449 (Tex.1971). Thus, if the movant fails to introduce evidence showing a probable injury, it is not only proper for the trial court to deny the injunction, but it is required to do so. Delaney v. Fidelity Lease Limited, 526 S.W.2d 543 (Tex.1975). The evidence introduced must also show that irreparable injury will occur before the cause can be heard on the merits, not merely that harm will occur. Sarris v. Christie, 217 S.W.2d 99, 102 (Tex.Civ.App. — Dallas 1949, writ ref’d n. r. e.); Upshur Rural Electric Cooperative Corp. v. Key, 469 S.W.2d 420, 423 (Tex.Civ.App.— Texarkana 1971, no writ); see Crawford Energy, Inc. v. Texas Industries, 541 S.W.2d 463, 467 (Tex.Civ.App. — Dallas 1976, no writ).

The evidence at the temporary injunction hearing showed that the landlord had taken the position that it was entitled to terminate the lease and that, if Town Plaza refused to vacate the premises within ten days after notice was given on July 12, Monumental would initiate a forcible entry and detainer suit in justice court. There was no evidence, however, that such an action had been filed or that it could be filed and finally determined both in the justice court and on appeal before the court could decide the declaratory judgment action. Although the president of Town Plaza testified that the business would suffer irreparable harm if it was forced to vacate the premises, Town Plaza failed to show the immediacy of this harm. We cannot assume that the trial court would be unable to try the merits before Monumental could obtain possession by forcible detainer proceedings because the court could properly give the case precedence over other pending cases, and presumably would have done so. See Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959); SCM Corp. v. Triplett Co., 399 S.W.2d 583, 588 (Tex.Civ.App. — San Antonio 1966, no writ); and cf. Manning v. Wieser, 474 S.W.2d 448, 450 (Tex.1971), in which the trial court’s denial of a temporary injunction was held to be within its discretion in view of its offer of an early setting on the merits. In this respect, we hold that Town Plaza had the burden of showing that it would likely be forced to vacate the premises before the district court could hear the declaratory judgment action on its merits. Because it failed to show irreparable harm occurring before the cause could be heard on its merits, no abuse of the trial court’s discretion is shown.

We expressly decline to pass on whether appellant established a probable right of recovery because no necessity exists for this determination in view of our holding. Furthermore, in our view, justice is not served by using an interlocutory appeal, such as this, to obtain an advance ruling on the merits. Moreover, as we view this matter, no necessity for an appeal existed because this case could have been most likely tried on its merits in less time than the time required by this interlocutory appeal. See Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 689 (Tex.Civ.App.— Dallas 1976), and Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463, 468 (Tex.Civ.App. — Dallas 1976, no writ).

Affirmed.