author: COLEMAN, Chief Justice.

text:
    Mrs. Annie CAYITT, Appellant, v. JETTON’S GREENWAY PLAZA CAFETERIA, Appellee.
    No. 16998.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 2, 1978.

      Jefferson & Maley, John E. Sherman, Houston, for appellant.
    Austin & Arnett, Monroe Northrop, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment for the defendant in a personal injury action. The case was tried by a jury which found the defendant guilty of serving unwholesome food which caused injury to the plaintiff, but failed to award money damages in any amount. The case will be reversed and the cause remanded.

The plaintiff was having a dinner at the cafeteria when she saw a roach in her dessert. She became nauseated, notified an employee of the defendant, and then left with her dinner partner, Dr. Cooper, a psychologist.

Mrs. Cavitt had been under the care of a physician for a year at the time of the incident in question. She was being treated for a stomach ailment, the symptoms of which were identical as those described as resulting from the incident in question.

This appeal is presented on one point of error:

“The county civil court at law erred in failing to grant appellant a new trial on the issue of damages.”

The appellee contends that this point is not properly preserved in appellant’s motion for a new trial.

In her motion for a new trial, the appellant stated that “the court erred by entering judgment in favor of the defendant, Jetton’s Greenway Plaza Cafeteria, and against the plaintiff for the following reasons: —(2) the jury’s answers to special issues 4 and 5 are contrary to the great weight and overwhelming preponderance of the evidence and, in any event as a matter of law, plaintiff is entitled to a new trial.” This assignment is sufficient to comply with Rule 321, Texas Rules Civil Procedure. Hardy v. CPI Sales, Inc., 511 S.W.2d 89. We have held a similar assignment of error insufficient to form the basis for a point of error on appeal asserting that the jury’s verdict is contrary to the great weight and preponderance of the evidence. Hardy v. CPI Sales, Inc., 511 S.W.2d 89 (Tex.Civ.App.—Houston [1st. Dist.] 1974, no writ history).

By order of the Supreme Court of Texas entered July 11, 1977, Rule 324, T.R.C.P. was amended effective January 1, 1978. The rule now provides that a complaint that one Or more of a jury’s findings have insufficient support in the evidence, or are against the overwhelming preponderance of the evidence as a matter of fact, may be presented for the first time on appeal.

While the briefs in this case were filed prior to the effective date of the amendment to Rule 324, supra, we are bound by it in determining the sufficiency of the point of error. As a general rule, in the absence of an expressed intention to the contrary, procedural rules adopted by the Supreme Court are applied to pending litigation in that subsequent steps in the case are controlled by the new rule. Brooks v. Texas Employers Insurance Association, 358 S.W.2d 412 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.).

From the statement and argument in the appellant’s brief under its single point of error, it is clear that the appellant contends that the answers made by the jury to the damage issues are contrary to the great weight and preponderance of the evidence. We will consider this point of error.

The jury found that Jetton's Greenway Plaza Cafeteria served Annie Cavitt unwholesome food on February 12, 1974. It found that she suffered injuries or aggravation of prior physical ailments as a result thereof, and that the serving of unwholesome food was a producing cause of the injuries or the aggravation. In answer to special issue No. 4, the jury found $0.00. This issue reads:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Annie Cavitt for her injuries, if any, would you find from a preponderance of the evidence resulted from the occurrence in question? You may consider the following elements of damage, if any, and none other.
(a) Physical pain and mental anguish in the past.
(b) Physical pain and mental anguish which, in reasonable probability, she will suffer in the future.”

The appellee lays stress on the difference in the wording of the issue on damages from the language found in the liability issue. Appellee says the jury might well have found that the serving of unwholesome food was the producing cause of an aggravation of a prior physical ailment without finding that any sum of money was necessary to compensate the appellant for her injury resulting from the occurrence.

A person is injured if he receives damage or harm to the physical structure of his body. Such damage or harm includes aggravation of any previously existing disease or condition by reason of such damage or harm to the physical structure of the body. See definition of the term “injuries” in Texas Pattern Jury Charges, § 11.01, page 245. Ordinarily and primarily the word “injury” means damage or hurt done to or suffered by a person or thing. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945).

The phrase “physical structure of the body” must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. Where an emotional shock results in objective symptoms or an impairment of use or control of physical structures of the body, an injury has been suffered. Bailey v. American General Insurance Co., 154 Tex. 430, 279 S.W.2d 315 (1955).

The jury found that the plaintiff suffered an injury or an aggravation of a previous condition. Under the evidence in this case, we must conclude that the terms are synonymous. The question therefore is whether or not the injury sustained by the plaintiff requires that money damages in some amount be awarded.

Annie Ruth Cavitt, the plaintiff, has a Bachelor of Science Degree from Texas Southern University and has completed 45 hours of work in psychology toward a Master’s Degree. She had been employed at the Riverside General Hospital as a counsel- or in connection with a drug abuse program. For about one year prior to February 12, 1974, she had been treated by a Dr. Gatoura for stomach trouble. On February 12, she went to Jetton’s Cafeteria with Dr. Matthew N. Cooper for dinner. While she was eating her dessert, she noticed a roach embedded in it. It was her testimony that she immediately became sick and vomited into her napkin. After Dr. Cooper called the attention of the manager of the cafeteria to the roach in the apple strudel, he apologized and did not charge Mrs. Cavitt for her meal. Mrs. Cavitt and Dr. Cooper went to Dr. Cooper’s office, where she vomited again. Dr. Cooper gave her “a coke or something.”

Nausea persisted for two days. Later the same night, she called Dr. Cooper regarding the vomiting and he wrote a prescription and turned it in for her. The next day when the vomiting persisted, she called Dr. Gatoura on the telephone, but she did not go to his office for an examination. Some months later, she saw Dr. Oliver C. Hunter who treated her for a nervous stomach. After February 12, she continued to see Dr. Cooper about her problem.

As a result of the incident at the restaurant, her eating habits changed and she lost a lot of weight. She found that she was unable to eat when she was out in company which was very embarrassing to her. She had a nervous stomach condition before the incident at the cafeteria and she continued being sick afterwards. She did not eat properly and ended up in the hospital again. On cross examination, she admitted that she saw Dr. Hunter about a year after the incident and did not recall whether she mentioned the cafeteria incident to him or not.

Dr. Cooper also testified. He has a Bachelor of Education Degree from Western Illinois State Teachers College, a Master of Arts Degree from the University of Illinois and a Ph.D. Degree from New York University. His field was psychology and he was a member of both the American Psychological Association and the Texas Psychological Association. He is a professor at Texas Southern University in the Department of Psychology. He is also staff psychologist at the Riverside General Hospital, Drug Abuse Clinic. He is licensed to practice as a psychologist in the State of Texas.

Dr. Cooper met Mrs. Cavitt while she was enrolled in a course which he was teaching. Prior to the cafeteria incident, he had been treating her for certain personal problems and also for her inability to eat properly. He saw her vomiting at the table in the cafeteria and saw the roach in her dessert. He testified that Mrs. Cavitt was almost in a state of shock immediately after the incident. He testified that she again vomited when they reached his office. He testified that he saw her some ten times following that in connection with her condition. He charged her $25.00 each session, and billed her for $250.00. He testified that, in his opinion, she suffered a mental depression as a result of the incident.

He testified that the principle difference between a psychologist and a psychiatrist is that the psychiatrist is qualified to prescribe medicine and has graduated from a medical school. He did not keep written files on his patients. Mrs. Cavitt worked with him in the hospital. Depression is a sort of neurosis or a component of neurosis. He treated Mrs. Cavitt with Hypnosis.

The medical records of Dr. Gatoura relating to Mrs. Cavitt were introduced into evidence. These records show that Dr. Ga-toura admitted her to Hermann Hospital on December 27, 1973, and that her chief complaint was of abdominal pain. The doctor’s records reflect that he saw her in September of 1973 at which time she had stomach pain and felt sick. She told him that 45 minutes after she ate, she would feel pain. She was extremely nervous. She had lost 10 to 14 pounds within the last 2 months. The doctor saw her again on December 27, 1973, at which time she complained of severe stomach pains for the past week. She had vomited and had a poor appetite. The doctor saw Mrs. Cavitt on January 30,1974; February 6, 1974 and February 27, 1974. There is no mention in his notes that he was informed of the roach incident.

The medical records of Dr. Oliver C. Hunter were also introduced. Mrs. Cavitt first saw him on February 20, 1975, her chief complaint at that time was abdominal pain. She told him that for “the past several months” she had increasing pain in her stomach. He admitted Mrs. Cavitt to St. Joseph’s Hospital. His final diagnosis was “abdominal pain, etiology undetermined, acute gastroenteritis, etiology undetermined, treated improved. Moderate anxiety reaction, treated improved. Spastic Colitis, no evidence of active ulcerations or ulcers, treated improved.”

During her hospitalization in December of 1973, she underwent an appendectomy. Other surgical procedures were carried out at the same time. The medical records of St. Joseph’s Hospital reflect the history given to Dr. Hunter and the diagnosis which he made. The doctor noted that she had had two pregnancies without difficulty. He also noted that she was very apprehensive and anxious. He found obvious signs of recent weight loss.

There was no other testimony concerning the incident at the cafeteria. The “manager” did not testify although it appears that he might have been able to testify as to Mrs. Cavitt’s claimed nausea. The appellee contends that Mrs. Cavitt’s testimony was impeached by reason of the fact that Dr. Hunter’s medical records contain no mention of the cafeteria incident, and that she did not seek treatment from Dr. Gatoura although he was treating her at the time. Appellee also calls attention to the fact that Dr. Cooper kept no records of his visits with Mrs. Cavitt and the treatment which he gave her. Appellee also stresses the fact that Dr. Cooper did not have Mrs. Cavitt treated by a neurologist or even talk with her treating physician.

We are unable to agree that the testimony of Mrs. Cavitt or Dr. Cooper was seriously impeached. While Dr. Cooper was friendly with Mrs. Cavitt and had known her for some period of time prior to the incident, he had no financial interest in the outcome of the suit. It is undisputed in the record that Mrs. Cavitt saw a roach in the food she had been eating and immediately suffered nausea, and that this condition persisted for a period of time. There was testimony that for a period of time she was unable to eat in public, a condition that resulted in embarrassment. The record establishes the fact of injury and resulting mental anguish. The uncontradicted evidence discloses that she suffered some damage. The amount of damages to be awarded is peculiarly within the province of the jury, but the jury may not disregard the fact of injury and find no damage. Missouri, K. and T. R. Co. of Texas v. Lightfoot, 48 Tex.Civ.App. 120, 106 S.W. 395 ( — 1907, writ ref’d); Sutton Motor Company v. Crysel, 289 S.W.2d 631 (Tex.Civ.App.—Beaumont 1956, no writ history); Nye v. W & L Company, Inc., 519 S.W.2d 142 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

The judgment of the trial court is reversed and the cause remanded.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    SHELBY INTERNATIONAL, INC., Appellant, v. Wade WIENER, Individually and d/b/a Texas Speed Distributors, Appellee.
    No. 17030.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Feb. 2, 1978.

      Ross, Banks, May, Cron & Cavin, John A. Cavin, Houston, for appellant.
    Bresenhan, Martin & Wingate, Maurice Bresenhan, Jr., Houston, for appellee.
   PEDEN, Justice.

Shelby International, a California corporation, brought this suit to enforce its California default judgment against Texas resident Wade Wiener based on process served in Texas. The Texas trial court concluded that Mr. Wiener’s California contacts were insufficient to give courts of that state personal jurisdiction over him. Shelby disputes this and contends that several of the trial court’s findings of fact and conclusions of law are against the great weight of the evidence.

' We summarize the more important findings of fact made by the trial judge.

1. Shelby is a California corporation.

2. At all relevant times it had a warehouse and salesmen in Texas.

3. Shelby makes custom automobile wheels in California and sells them there and in other states.

5. At all relevant times Wiener’s business was maintained and conducted in Texas.

6. Wiener has never had an office, telephone, bank account, directory listing, inventory, real property or personal property in California.

7. Wiener has never hired any employees, salesmen, agents, distributors or representatives in California.

8. He has never solicited any purchases or made any sales in California.

9. He was solicited in Texas by Shelby representatives to buy its products.

10. All purchases of Shelby’s products by Wiener were made orally and placed in Texas, either with Shelby representatives in Texas or by using Shelby’s WATS telephone line to Shelby’s office in Texas or in California.

11. There was no agreed place of payment. It could be made to Shelby’s representative in Texas or to its office in Texas or in California.

12. Shipments were from Shelby in Texas or California.

13.The method of shipment was Shelby’s. Some freight was prepaid, some was not, and some was sent by Shelby’s trucks.

16. Wiener has never been to California on matters related to the transactions in question.

17. Shelby took a default judgment against Wiener in Superior Court, Los An-geles County, California.

18. Jurisdiction was asserted by the court pursuant to California Code of Civil Procedure, § 410.10.

19. Wiener was cited with process pursuant to California C.C.P., § 415.40.

20. This court has been noticed under Rule 184a, Texas R.C.P. to take notice of California common law, statutes and court decisions.

We also summarize the conclusions of law made by the trial judge.

1. These conclusions are made pursuant to California law.

2. At all relevant times, there were no purposeful activities by Wiener from which it can be inferred that he intended to do business in California.

3. At all relevant times the only purposeful activities in California were acts of Shelby’s employees.

4. Wiener’s activities were not sufficient to satisfy the requirements of minimum contacts such that the assertion of jurisdiction was reasonable.

5. Assertion of in personam jurisdiction over Wiener under the facts of this case would offend traditional notions of fair play and substantial justice.

The primary issue on this appeal is whether the California court had jurisdiction under the facts of this case to render a personal judgment against Wiener. To resolve this question, we look to the law of California. O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966). The California judgment appears to be valid, final, and subsisting, so the burden to prové a lack of personal jurisdiction was on the defendant, Wiener, in the Texas enforcement proceeding. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975).

As a general constitutional principle, a court may exercise personal jurisdiction over a nonresident individual as long as he has such minimal contacts with the state that “. . . the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.” In those cases in which jurisdiction is based on the defendant’s occasional activities, it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Sibley v. Superior Court of Los Angeles County, 16 Cal.3d 442, 128 Cal.Rptr. 34, 546 P.2d 322 (Cal.Sup.1976), citing International Shoe Co. v. Washington (1945) 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and Hanson v. Denckla (1958) 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.

Appellant contests the sufficiency of the evidence to support three findings of fact which led to the court’s conclusion that appellee lacked the necessary minimum contacts. He first complains of the fifth finding. Wiener testified that at all times during his relationship with Shelby he did business at two locations only, both in Houston; as the only testimony on the location of his business, it clearly supports this finding.

Appellant next attacks finding 6, that appellee never owned any personal property in California, arguing that under Section 2401(2)(a) of the California Commercial Code, title to the wheels in question passed from the seller to the buyer when the seller delivered them to the common carrier in California.

Section 2401 states:

(1) . . .
(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading
(a) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(b) If the contract requires delivery at destination, title passes on tender there.

The evidence does not establish as a matter of law exactly when the seller “completed his performance ... of physical delivery of the goods.” There was no testimony as to the parties’ having specifically contracted on whether the seller was required to deliver the goods at destination. Plaintiff’s exhibits 9A through 9LL are copies of the invoices and bills of lading. Those which indicate freight payments show that they were prepaid, and Mr. Wiener testified that Shelby paid the freight and chose the method of shipment. Mr. LaVinger, credit manager for Shelby, testified that some shipments to Texas Speed originated from Los Angeles, and others from Shelby’s Dallas warehouse.

Title can pass under § 2401(2) of the California Commercial Code at either of two times. If the seller is only required to ship the goods, title passes at the time and place of shipment. If the seller must deliver the goods to the buyer’s destination, his performance is not complete, and title does not pass until delivery is actually made. The judge was entitled to conclude that the seller was responsible for delivery of the goods at the buyer’s destination in Texas and thus that Wiener did not own them while they were in California. In any event, little weight was given to this factor in Interdyne Co. v. SYS Computer Corp., 31 Cal.App.3d 508, 512, 107 Cal.Rptr. 499, 501 (1973). In that case the goods were custom designed, were built to the specifications of the buyer, and were shipped F.O.B. Santa Monica, California, but the facts were otherwise very similar to those in our case. The court held:

When a California business seeks out purchasers in other states — purchasers who are not ‘present’ in California for general purposes—deals with them only by out-of-state agents or by interstate mail and telephone, it is not entitled to force the customer to come to California to defend an action on the contract.

Appellant’s third point of error attacks the court’s finding 7, that the appellee never employed or hired any agents in California. Shelby argues that the common carriers who transported the goods were the agents of the purchaser, but Shelby’s witness testified it normally chose the method of transporting the wheels it sold. It sometimes delivered them in its own trucks and, as noted, prepaid most of the shipments in question. Appellant cites no authority to support its conclusion that the shippers it selected and paid were agents of the appellee. We overrule the point. In any event, we consider the error, if any, harmless. Rule 434, Texas Rules of Civil Procedure.

Point of error four is a great weight point directed to the eighth finding of fact. Mr. LaVinger, Shelby’s credit manager, testified that plaintiff’s exhibit 12 was a credit memo showing that Shelby repurchased $353.49 worth of merchandise from Wiener. The trial judge was entitled to conclude from this testimony and from a letter from Mr. Wiener asking for credit for defective wheels that he was merely revoking his acceptance of non-conforming goods. Tex. Bus. & Comm.Code § 2.608. A revocation of acceptance revests title of goods in the seller as a matter of law and does not constitute a “sale.” California Commercial Code § 2401(4).

Appellant’s points five through eight are great weight points as to the court’s conclusions of law 2, 3, 4 and 5, and they also assert that those conclusions are against the prevailing law of the state of California. These points contest the conclusions of the court that the appellee did not purposefully conduct business in California and did not have sufficient minimum contacts with California to prevent its assertion of jurisdiction from offending traditional notions of fair play and substantial justice.

We hold that the trial judge’s findings of fact are amply supported by the evidence and that the conclusions of law were correct under California law.

A fact situation closely resembling the one at bar is found in Tiffany Records, Inc. v. M. B. Krupp Distributors, Inc., 276 Cal.App.2d 610, 81 Cal.Rptr. 320 (1969). The California Court of Appeal held that where a Californian sent his employee out-of-state to solicit business and the out-of-state purchaser at most placed orders by mail or by telephone to California, this did not constitute activity that would make it fair to require the purchaser to defend himself there. See also Floyd J. Harkness Co. v. Habermann, 60 Cal.App.3d 696, 131 Cal.Rptr. 672 (1976); Cornell University Medical College v. Superior Court, 38 Cal.App.3d 311, 113 Cal.Rptr. 291 (1974); Belmont Industries, Inc. v. Superior Court, 31 Cal.App.3d 281, 107 Cal.Rptr. 237 (1973).

In the recent Texas case of U—Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), it was held that since the contract was solicited, negotiated and consummated in Oklahoma and only payment was to be made in Texas, Burt would not be afforded due process of law if required to defend the suit in Texas.

The appellant alleges error in Points 9 through 23 in the court’s refusal to grant its request for additional findings of fact and conclusions of law. Most of these requested findings are covered by and directly contrary to the original findings filed by the trial court, so it was not required to make them and its refusal did not constitute error. Great American Reserve Co. v. Summer, 464 S.W.2d 212 (Tex.Civ.App.1971, writ ref., n. r. e.); Wentz v. Hancock, 236 S.W.2d 175 (Tex.Civ.App.1951, writ ref.). The other requested additional findings would not, if made, have required a different judgment.

Affirmed.


author: ROBERTSON, Justice.

text:
    SOUTHWEST BANK & TRUST COMPANY, Appellant, v. BANKERS COMMERCIAL LIFE INS. CO., Appellee.
    No. 19394.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 7, 1978.
    Rehearing Denied March 2, 1978.

      Paul D. Schoonover, Vial, Hamilton, Koch, Tubb, Know & Stradley, Dallas, Albert Levy, McGuire, Levy, Collins & McCur-ley, Irving, for appellant.
    R. Jack Ayres, Jr., Carl Davis Adams, Kelsoe & Ayres, Dallas, for appellee.
   ROBERTSON, Justice.

Bankers Commercial Life Insurance Company sued E. V. Scott and Southwest Bank & Trust Company for damages resulting from the alleged conversion of three cashiers checks. As an alternative theory, Bankers also sought damages based upon Southwest Bank’s negligence in permitting Scott to deposit the checks in his checking account at Southwest Bank. Although Scott admitted that he converted the funds to his own use, Southwest Bank defended on the basis of the two-year statute of limitations applicable to suits in negligence and conversion. After trial to the court without a jury, the trial court rendered judgment against Scott for the face amount of the three checks, plus $10,000 exemplary damages, and against Southwest Bank on one of the checks in the sum of $6,480. Southwest Bank is the only appealing party. We reverse and render.

The primary question on this appeal is whether Bankers’ claims of conversion and negligence against — SauthwesL- Bank are barred by the two-year statute of limitations provided in Article 5526 of the Texas Revised Civil Statutes. Since the cashiers check in question was paid by the issuing bank on July 11,1968, and Bankers’ original petition was not filed until October 23, 1974, the suit is barred unless some recognized tolling principle applies. In this regard, Bankers asserts that the limitation period was tolled by Southwest Bank’s participation in a conspiracy to fraudulently conceal the misappropriation. Alternatively, it submits that the cause of action on the check did not accrue until the misappropriation was discovered, and that since the wrong was not discovered until 1976, the suit is not barred by limitation.

Fraudulent Concealment

Bankers argues that Southwest Bank and Scott conspired to deposit funds of Bankers, a domestic insurance company, into the private account of Scott, one of its officers, in violation of Article 3.14 of the Texas Insurance Code. Allegedly, this conspiracy fraudulently concealed facts concerning the existence of Bankers’ cause of action against Scott and Southwest Bank. We disagree. An essential element of a civil conspiracy is an agreement or understanding between the conspirators regarding the object of the conspiracy; common design is the essence of a conspiracy, and there must be a preconceived plan and unity of design or purpose. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex.1969). Stated another way, there must be a “meeting of the minds” on the desired course of action. In the present case, the check was payable to Bankers, and was endorsed by Scott in dual capacities: first, as “E. V. Scott, Treasurer” in his capacity as treasurer of Bankers; and second, as “Veon Scott” in his individual capacity. Although Scott’s account was designated “E. V. Scott,” the teller nevertheless accepted the cheek with the “Veon Scott” endorsement. The record reflects that Scott had done business with Southwest Bank for some time, and that he was afforded certain banking privileges, such as overdraft approvals. According to Bankers, these “irregularities” established a course of dealing which culminated in Scott’s being allowed to make the illegal deposit.

Despite Bankers’ arguments, these showings do not prove the existence of a conspiracy. The overdraft privileges were not unique to Scott, but were allowed to other bank customers as well. According to the testimony of Mr. Yancey, chief executive officer of Southwest Bank, overdrafts were permitted if approved by a bank officer. Even if Scott was a “preferred customer” in the sense that his overdrafts were customarily approved, this does not infer any agreement between himself and the bank to permit illegal deposits. Southwest Bank’s agreement to accommodate Scott’s strained finances by legal means (such as overdraft approval) does not infer a design to also do so illegally.

It is true that the existence of a conspiracy is generally a matter of inference, and that direct proof of an agreement to pursue the wrongful purpose is unnecessary. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963); Mims v. Bohn, 536 S.W.2d 568 (Tex.Civ.App.—Dallas 1976, no writ); Oliver v. Huckins, 244 S.W. 625 (Tex.Civ.App.—Fort Worth 1922, writ dism’d). However, vital facts may not be proved by unreasonable inferences from other facts and circumstances; the evidence must do more than raise mere suspicion upon which conjecture or speculation regarding a conspiracy’s existence may be based. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., supra; Switzer v. Joseph, 442 S.W.2d 845 (Tex.Civ. App.—Austin 1969, no writ). We conclude that the proof in the present case raises no inference of a conspiracy. Accordingly, we hold that the statute of limitations was not tolled by any fraudulent concealment attributed to Southwest Bank.

The Discovery Rule

As its alternative argument, Bankers asserts that its cause of action against Southwest Bank did not accrue until it actually discovered, or in the exercise of reasonable care, should have discovered the existence of the cause of action. Although this rule has been applied to toll limitations in medical malpractice cases, such as Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Hays v. Hall, 488 S.W.2d 412 (Tex.1973); fraud, Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.), and.limited defamation cases, Kelley v. Rinkle, 532 S.W.2d 949 (Tex.1976), it hasjnot been extended to the commercial paper context" In deciding whether it should be so extended, we must apply the balancing test employed in Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977), and Gaddis v. Smith, supra. These cases balanced the underlying statutory .policy _ of _ reposé against the injustice created by barring the type of suit under consideration. In striking the balance, our supreme court has considered:

(1) The nature of the plaintiff’s case, and the type of evidence required to establish and defend the claim;
(2) The length of the limitations period in question, and the wrongful act’s susceptibility to discovery within that period; and
(3) The susceptibility of cases to fraudulent prosecution if limitation is tolled.

See Robinson v. Weaver, supra, at 21-22; Gaddis v. Smith, supra; Kelley v. Rinkle, supra.

Since suits concerning commercial paper primarily depend on documentary ev-idenceL there is no reason to presume that evidence would become stale, merely ..because of the passage of time. Further, the necessity of documentary proof lessens the likelihood of fraudulent suits". Accordingly, this case turns on whether Southwest Bank’s negligence in the present case was reasonably susceptible to discoyery within the prescribed limitations period. We conclude that it was. Nothing in the nature of thejsouthwest BankVact of conversion ren- ’ the act or tjafe resulting injury difficult to discover'; instead, the discovery /problems stemmed from Scott’s fraudulent v concealment of the_deposit. Since no discovery problems are inherent on the part of ¿/Southwest Bank, we hold that the “discovery rule” does not apply to toll_the_stat-ute of limitations where a bank is suedjfor //conversion on_ a forged endorsement. In such cases, limitations can only be tolled by .^proo.f of the_bank’sjfraudulent concealment of the transaction..No. such evidence was adduced here.

Reversed and rendered.


text:
    Truman L. MINYARD, Appellant, v. SOUTHERN PIPE & SUPPLY CO., INC., Appellee.
    No. 19449.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      R. W. (Bill) Glenn, Glenn & Houser, Plano, for appellant.
    Ronald Z. Aland, Ungerman, Hill, Unger-man, Angrist, Dolginoff, Teofan & Vickers, Dallas, for appellee.
   ROBERTSON, Justice.

Southern Pipe & Supply Company, Inc. sued Truman L. Minyard on a sworn account. Minyard failed to answer, and a default judgment was rendered for the amount of the debt, together with attorney’s fees. Minyard has perfected this writ of error. We affirm the judgment on the debt, but reverse and remand the award of attorney’s fees because of Minyard’s inability to obtain a statement of facts of the default judgment hearing.

Minyard’s first argument is that the affidavit supporting the account was fatally defective because it failed to identify, in its introduction, the signer of the affidavit as the person who appeared before the notary public. Although the affidavit has a blank in which the affiant’s name is supposed to appear, the name was not inserted, and Minyard argues that the name cannot be implied by the underlying signature. We disagree. The omission was cured by adding the words “sworn to and subscribed before me” immediately below the signature line. Since the notary thus attested both signature and swearing, it is reasonable to presume that the signing individual was also the affiant. Mere clerical omissions which do not obscure meaning will not invalidate an affidavit. See Jewett State Bank v. Evans, 129 S.W.2d 1202 (Tex.Civ.App.—Waco 1939, no writ); Order of Aztecs v. Noble, 174 S.W. 623, 624 (Tex.Civ.App. —Austin 1915, no writ).

As his second argument, Minyard asserts that the invoices attached to Southern Pipes’ petition do not sufficiently describe the subject matter of the sworn account. To support this argument, he cites Sherman v. Phillips Industries, 560 S.W.2d 154 (Tex.Civ.App.—Houston 1977) and Hassler v. Texas Gypsum Co., Inc., 525 S.W.2d 53 (Tex.Civ.App.—Dallas 1975, no writ), which reversed default judgments when the underlying invoices did not identify the purchased items with sufficient clarity. Unlike the invoices in those cases, however, the invoices in the present case describe the items in terms with recognized meanings in the English language. The terms “meter box,” “gate valve,” “closet flange” and others describe the items with sufficient clarity.

Accordingly, we hold that the sworn account is sufficient without further proof to support the judgment on the debt. The judgment for the attorney’s fee, however, has no such support. Minyard argues that he was unable to secure a statement of facts of the default judgment hearing, and, accordingly, that the award of attorney’s fees must be reversed. Minyard’s aver-ments regarding the statement of facts are supported by the affidavit of the official court reporter, who states that he did not report any evidence taken at the hearing, and that to his knowledge, no stenographic record of the hearing exists.

We have previously held that a new trial is required when an appellant, through no fault of his own, is unable to obtain a proper record of the evidence introduced. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d). At the time Morgan Express was rendered, Article 2324 of the Texas Revised Civil Statutes required the official court reporter to attend and report all trials in his court. We rested our decision upon the duty prescribed by this statute. Since that time, however, Article 2324 has been amended to require the court reporter’s attendance only when requested. We are not persuaded, however, that this amendment has modified the rule set forth in Morgan Express so as to require a defaulting party to request the court reporter’s presence at the default judgment hearing. To adopt such a construction of the amendment would impose a duty to request the court reporter’s presence at the very hearing from which the defaulting party is absent. Our holding is supported by the recent Supreme Court decision in Rogers v. Rogers, 561 S.W.2d 172 (1978), which recognized the viability of the Morgan Express rule in cases where the defendant did not appear at the trial.

With respect to the defendant’s duty to obtain a condensed statement in narrative form under Rule 377 of the Texas Rules of Civil Procedure or an agreed statement under Rule 378, the court said:

An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the casé in order to obtain a statement of facts. (561 S.W.2d at 173)

The court cited Morgan Express, Inc. v. Elizabeth-Perkins, Inc., supra, in support of this holding. Thus, the diligence requirements of Rules 377 and 378 do not apply to default judgment situations. We do not, however, construe the holding to dispense with these requirements in cases where the appellant is present at the trial, either in person or by counsel.

Finally, Southern Pipes argues that even if no statement of facts can be obtained, we must presume that the trial court took judicial notice of the State Bar fee schedule in setting the fee, pursuant to Article 2226 of the Texas Revised Civil Statutes. This presumption cannot exist here, however, because the default judgment recites that the trial court heard evidence before rendering judgment. We cannot presume the court took judicial notice of the fee schedule in the face of directly contrary recitations in the judgment. Consequently, the case must be remanded for a hearing on the amount of the attorney’s fee. Woods Exploration and Producing Company, Inc. v. Arkla Equipment Company, 528 S.W.2d 568, 571 (Tex.1975).

The portion of the judgment which awards attorney’s fees is reversed and remanded; the remainder of the judgment is affirmed.


author: EVANS, Justice.

text:
    Joel GUNNELS et ux., Appellants, v. NORTH WOODLAND HILLS COMMUNITY ASSOCIATION, Appellee.
    No. 17013.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 9, 1978.
    Rehearing Denied March 16, 1978.

      Dellinger, Lawrence & Baca, Paul R. Lawrence, Houston, for appellants.
    Dazey & Newey, Robert E. Newey, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a temporary injunction order requiring that the appellants remove a citizens band radio antenna from their residence.

This action was instituted by the plaintiff, North Woodland Hills Village Community Association, Inc., alleging that it was a non-profit corporation organized for the purpose of requiring compliance with the restrictions placed upon Woodland Hills Village, Section 5, for the mutual benefit and protection of all of the residents within the subdivision. Attached to and made a part of the plaintiff’s petition by reference is a photocopy of the recorded restrictions applicable to Woodland Hills Village, Section 5. The pertinent provision in these restrictions provides:

“No electronic antenna or device of any type other than an antenna for receiving normal television signals shall be erected, constructed, placed or permitted to remain on any of the lots, houses, or buildings constructed in this subdivision. Television antennas may be attached to the house; however the antenna’s location shall be restricted to the rear of the house or to the rear of the roof ridge line, cable or center line of the principal dwelling so as to be hidden from sight when viewed from the fronting street.”

The appellants first contend that the trial court erred in granting the temporary injunction because North Woodland Hills Village Community Association, Inc., was not a proper party to the action. Under this point, the appellants argue that the evidence shows the plaintiff to be an association of residents both in and out of Section 5 of Woodland Hills Village and that the plaintiffs failed to prove that it would benefit from the enforcement of the restrictions. The appellants rely on Wald v. West MacGregor Protective Association, 332 S.W.2d 338 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.), wherein it was held that a community protective association had no justiciable interest where neither it nor the majority of its members owned property in the restricted area.

The Wald case is inapplicable to the facts in the case at bar. The restrictions for North Woodland Hills Village, Section 5, expressly authorize and empower North Woodland Hills Village Community Association, Inc., to institute proceedings for the enforcement of the restrictions. The appellants did not file a verified plea questioning the plaintiff’s entitlement to recover in the capacity in which it sued, and they are in no position to argue that the plaintiff was not authorized to bring the action on behalf of the residents of Section 5. Rule 93, Tex.R.Civ.P.; Taylor v. Republic Grocery, 483 S.W.2d 293, 296 (Tex.Civ.App.—El Paso 1972, no writ).

The evidence shows that the association is composed of residents of various sections of Woodland Hills Village, and that each of these sections has separate restrictions. However, the plaintiff sought to enforce only the restrictions applicable to Woodland Hills Village, Section 5, and the fact that the plaintiff also served residents of other sections would not disqualify it from seeking enforcement .of the restrictions applicable to that section.

The appellants next contend that it was inequitable for the trial court to issue a mandatory injunction under the circumstances presented by the evidence. Under this point, they argue that there was no evidence that the plaintiff or any other person would suffer damages by reason of their continued use of the antenna pending a final hearing on the merits.

It is only under exceptional circumstances that a mandatory injunction will be granted prior to the final hearing, and the trial court should issue such a writ only where the right thereto is clearly established and a mandatory order is necessary to prevent irreparable injury. Haynie v. General Leasing Company, Inc., 538 S.W.2d 244 (Tex.Civ.App.—Dallas 1976, no writ); Lawyers Surety Corporation v. Rankin, 500 S.W.2d 181 (Tex.Civ.App.— Houston [14th Dist.] 1973, writ ref’d n. r. e.).

“Generally, the preservation of the quo can be accomplished by an injunction prohibitory in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury on complainant. In such a case, courts of equity issue mandatory writs before the case is heard on its merits. This character of cases has been repeatedly held to constitute an exception to the general rule that temporary injunction may not be resorted to to obtain all relief sought in the main action; such temporary injunction may be mandatory in character.” Rhodia, Inc. v. Harris County, 470 S.W.2d 415, 419 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ)

The restrictive covenants of Woodland Hills Village, Section 5, prohibit the property owners of that subdivision from erecting or maintaining on their houses or buildings within the subdivision any antennas other than those used for receiving normal television signals. It is undisputed that the appellants were fully aware of the restrictive covenant at the time they purchased their lot and when they installed their citizens band radio antenna on their house.

The plaintiff in an action to enforce restrictive covenants is not required to prove actual damages in order to obtain injunctive relief. Shepler v. Falk, 398 S.W.2d 151 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.). Where a distinct or substantial breach of the restrictions is shown, the courts will enjoin the violation even though there is no proof of actual damages or irreparable injury. Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.—Eastland 1960, writ ref’d).

Furthermore, the status quo in the case at bar was not a condition of rest, but rather one of action, and was of such a nature as to inflict irreparable injury upon the residents of Woodland Hills Village, Section 5.

The appellants argue that the mandatory injunction will result in great injury to them, while the plaintiff would suffer only slight damage pending a final hearing on the merits. The evidence is undisputed that the total cost of the outside antenna and the base unit was about $380.00, and there is no evidence that the base unit could not be used with an antenna placed inside the house. The evidence shows that the outside antenna could be readily removed by Mr. Gunnels himself:

Q. Is it one that could be easily taken down?
A. With help, yes.
Q. How long would you say it would take to take it down?
A. An hour.
Q. You installed it yourself with help?
A. Yes.
Q. And you could take it down yourself?
A. Yes.
Q. How much did the aerial cost?
A. I believe they retail for about a $130.
Q. You put the aerial up knowing of the existence of the restriction prohibiting electronic antennas in Section 17 of Part I?
A. Yes, I did.

In determining whether it would be inequitable to enforce restrictive covenants against a particular lot owner, the equities of the owner must be weighed against the equities favoring other lot owners who acquired their property on the strength of the restriction. Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 946 (1958). The fact that one landowner may suffer some greater injury by reason of the enforcement of the restrictions does not compel the refusal of injunctive relief. Collum v. Neuhoff, 507 S.W.2d 920, 924 (Tex.Civ.App.—Dallas 1974, no writ). If there is a disproportion between the harm which will ensue from granting injunctive relief and the benefit to be gained thereby, the disproportion must be of considerable magnitude to justify a refusal to enforce the restrictions. Cowling v. Colligan, supra. Neither does the fact that the relief granted would be the same as that sought on final hearing constitute, in itself, a basis for refusing to grant the temporary injunction. Texas Pipe Line Company v. Burton Drilling Company, 54 S.W.2d 190 (Tex.Civ.App.—Dallas 1932, no writ).

A temporary injunction is the proper method of maintaining the status quo while the applicability of a restrictive covenant is being finally determined. Baton v. Key Production Company, 315 S.W.2d 59, 62 (Tex.Civ.App. —Texarkana 1958, writ ref’d n. r. e.). In the present case, the evidence clearly establishes a probable right and a probable injury, and the trial court did not abuse its discretion in requiring the removal of the antenna pending final hearing. Crow v. Batchelor, 456 S.W.2d 241, 243 (Tex.Civ.App.— Texarkana 1970, no writ); Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953).

In their last point of error, the appellants contend that the restrictive covenant sought to be enforced was vague, overly broad and an undue restriction on the use of their property.

Restrictive covenants are enforceable if their language is clear and where they are confined to a lawful purpose and are within reasonable bounds. Chandler v. Darwin, 281 S.W.2d 363, 367 (Tex.Civ.App.—Dallas 1955, no writ). It is a well known fact that restrictions enhance the value of the subdivision property and form an inducement for purchasers to buy lots within the subdivision. Finley v. Carr, 273 S.W.2d 439 (Tex.Civ.App.—Waco 1954, writ ref’d). In the absence of ambiguity, restrictive covenants will be enforced according to their terms. H. E. Butt Grocery Company v. Justice, 484 S.W.2d 628 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.).

There is no ambiguity in the language of the covenant, and it clearly prohibits electronic antennas other than those used for receiving normal television signals from being placed or maintained “on lots, houses or buildings” within the subdivision. The restriction is not so broad as to prohibit antennas “inside the house” or “in the attic”, as the appellants maintain, and the covenant does not place an undue restriction on the use of the appellants’ property.

The trial court’s order is affirmed.


author: McDONALD, Chief Justice.

text:
    DEL VALLE INDEPENDENT SCHOOL DISTRICT BOARD OF EQUALIZATION et al., Appellants, v. Charles W. HACKETT, Jr., et al., Appellees.
    No. 5761.
    Court of Civil Appeals of Texas, Waco.
    Feb. 9, 1978.
    Rehearing Denied March 30, 1978.

      J. C. Hinsley, Michael G. Maloney, Austin, for appellants.
    Douglass D. Hearne, Kent M. Rider, Stayton, Maloney, Hearne & Babb, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants (officers of Del Valle Independent School District) from judgment permanently enjoining them from levying or attempting to collect taxes on plaintiffs (Hackett et al) lands for 1974 and 1975, based on the assessed values for such years.

Plaintiffs sued defendants prior to the closing of the tax rolls for 1974 and 1975 seeking temporary restraining order and injunction against defendants certifying and closing its tax rolls for such years, and to enjoin defendants from levying or attempting to collect taxes on plaintiffs’ lands based on the assessed values for such years.

Plaintiffs alleged defendants adopted and implemented an arbitrary and fundamentally erroneous plan or system of taxation for such years; that land located south of the Colorado river was substantially undervalued while land north of the river was substantially overvalued; that assessments of land in the District were made without regard to the reasonable cash market value thereof; that plaintiffs’ lands were assessed at 91.7% for 1974 and 97.2% for 1975 of values recommended by defendants’ appraisers while lands south of the river were assessed at less than half of recommended values; that had plaintiffs’ lands been valued at the average percentage of recommended values of land south of the river plaintiffs’ taxes would be decreased 52.9% for 1974 and 58.4% for 1975; that defendants’ arbitrary and fundamentally erroneous plan resulted in plaintiffs’ damage of $10,730.91; and that plaintiffs had timely sought relief of the Board of Equalization but were denied same.

Plaintiffs were granted temporary restraining orders which were continued in effect.

Defendants answered by general denial, and filed cross action against plaintiffs for $9,509.35 taxes assertedly due for 1974, and $9,825.40 taxes assertedly due for 1975 plus penalty and interest of $2,113.70.

Trial was to a jury, pertinent findings of which are summarized as follows:

1)Defendants used a plan of valuing land in the District for taxation without regard to its reasonable cash market value as of January 1, 1974 and January 1, 1975.
2) Defendants substantially undervalued land for taxation in the District located south of the Colorado river as compared to land located north of the river.
3) As a result plaintiffs will pay substantially more taxes than if defendants had not so acted.
4) Defendants have taxed a substantial number of other lands in the District on a lower percentage of reasonable cash market value than they have taxed plaintiffs for.
5) As a result plaintiffs will pay substantially more taxes than if defendants had not so acted.
6) The plan used by defendants for valuing land in the District was not uniform and equal.
7) As a result plaintiffs will pay substantially more taxes than if defendants had not so acted.
8) Plaintiffs will be injured $4,917.31 for 1974, and $5,241.38 for 1975, if forced to pay taxes on defendants’ proposed values.
9) Plaintiffs’ land has a reasonable cash market value of $606. to $664. per acre for 1974, and $636. to $697. per acre for 1975.
10) The 1974 and 1975 Board of Equalization did not make a good faith effort to honestly fix the values on plaintiffs’ property at a fair, just, equal and uniform valuation for tax purposes in comparison with properties of other tax payers in the District.
11) The defendant School officials approved notations of recommended values per acre on property tax record cards introduced in evidence by plaintiffs.
12) Defendants authorized use for tax purposes, figures on plaintiffs’ exhibits designated “Fair Market Value Given by Defendants or Their Agents or Representatives,” and “Value Recommended by Defendants or Their Agents or Representatives”.

The trial court rendered judgment permanently enjoining defendants: 1) from levying or attempting to collect taxes on plaintiffs’ lands for 1974 and 1975 in the proposed amounts and based on the plan, method or system of taxation used by defendants; 2) from levying or attempting to collect taxes on plaintiffs’ lands for 1974 and 1975 based on any plan of valuing land which does not take into account the reasonable cash market value of all land in the District for such years; 3) [but] without prejudice to right of defendants to reassess and value plaintiffs’ property in accordance with the law and collect such taxes as may be due thereon for 1974 and 1975; 4) with neither penalty nor interest to accrue on such reassessed values until 90 days after reassessment and notice to plaintiffs.

Defendants appeal on 85 points the main contentions of which we summarize as follows:

1) The trial court erred in admitting in evidence property tax record cards, and summaries prepared from such cards.

2) There is no evidence or insufficient evidence, to support Issues 1 thru 20, the judgment, or that plaintiffs would suffer substantial injury from defendants’ tax plan.

3) The trial court erred in permitting plaintiffs to file their First Trial Amendment, and in admitting evidence of tender of payment of taxes by plaintiffs.

4) The trial court erred in providing in its judgment plaintiffs could pay taxes after reassessment within 90 days following such reassessment without paying penalty and interest.

Contention 1 is the trial court erred in admitting in evidence property tax record cards, and summaries prepared from such cards.

Plaintiffs introduced into evidence over defendants’ objection some 1000 xerox copies of property tax record cards maintained by the school district on each piece of property in the district, and summaries prepared from such cards. Such cards contained the survey number, the number of acres covered, the name and address of the owner, the value assigned for tax purposes, the recommended market value per acre, and the assessed value. The School Tax Assessor-Collector testified the cards were records of the School District Tax Office; that the cards constituted the only records in such office which show the recommended values on tracts as placed by the School Districts’ appraisers; that there were no other records in the tax office showing such information, and whether or not the Tax Assessor-Collector followed or ignored the values recommended by the District Appraisers; that every entry on the cards was made by either: 1) The School Districts’ appraisers; 2) Professional appraisers employed by the District; 3) The District Tax Assessor-Collector. Defendants stipulated the xerox copies of the property tax record cards were correct xerox copies of the cards they purported to be copies of.

We think the xerox copies of the tax record cards and summaries made therefrom were admissable to show what they contained, the manner in which the District was valuing and taxing lands.

Contention 2 is there is no evidence or insufficient evidence to support Issues 1 thru 20 (summarized in 1 thru 8 supra) the judgment, or that plaintiffs would suffer substantial injury from defendants’ tax plan.

There is evidence defendants employed professional appraisers to appraise lands in the district; also used appraisers employed full time by the District to make appraisals; that the appraisers placed a recommended market value per acre on each property tax card; that the Tax Assessor-Collector thereafter placed an assessed value per acre on such cards; that the assessed values on lands north of the Colorado river followed the appraisers recommended values 80%, but followed the appraisers recommended values on land south of the river only 38%. There is evidence defendants used a plan of valuing land without regard to its reasonable cash market value; and that plaintiffs were damaged more than $10,000. by virtue of the Districts’ plan in valuing land. Such figure represents twice the amount of taxes plaintiffs would have been required to pay if all comparable lands in the District had been valued under a plan utilizing equal valuation of comparable properties on both sides of the river.

Plaintiffs have proved defendants utilized a fundamentally wrong and erroneous scheme of taxation; and plaintiffs filed their suit prior to closing of the tax rolls for 1974 and 1975, prior to the time the plan had been put into effect as to them, and availed themselves of the remedy of injunction to prevent defendants from putting the plan into effect as to them, and have shown that their taxes are twice what they would have been but for defendants’ erroneous tax plan, thus showing substantial injury.

Defendants assert plaintiffs had the additional burden to prove that their taxes were excessive as to market value by proving market value of other properties in the District.

Since plaintiffs availed of the remedy of injunction to prevent the taxing authority from putting the plan in effect as to them, they do not have the extra burden of proving that their taxes would be excessive, but have only to establish substantial injury by virtue of the fundamentally wrong plan of taxation, which plaintiffs have done. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569.

It is only where the taxpayer waits until the erroneous plan of taxation has been put into effect that he must prove that his tax is excessive as distinguished from unequal, and be required to introduce evidence of market values. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Jackson v. Maypearl Independent School District, Tex.Civ.App. (Waco) NWH, 392 S.W.2d 892; Milligan v. Corsicana Independent School District, Tex.Civ.App. (Waco) NRE, 381 S.W.2d 97.

Contention 3 is the trial court erred in permitting plaintiffs to file their First Trial Amendment, and in admitting evidence of tender of payment of taxes by plaintiffs.

On November 17, 1975 plaintiffs unconditionally tendered into the registry of the court cash money representing the amounts of 1974 and 1975 taxes they were willing to pay for those years. On August 2, 1976 during trial counsel for plaintiffs asked one of the plaintiffs if a tender of taxes had been made. Counsel for appellant objected to this question on the ground of no pleading which objection was sustained. Thereafter plaintiffs tendered an amended pleading alleging the tender. The trial court permitted filing of the amended pleading and thereafter admitted evidence of tender.

The filing of a trial amendment in this instance is authorized by Rule 66 TRCP; filing same is within the sound discretion of the trial court; and unless the trial court abuses that discretion he will not be overturned. We cannot say the trial court abused his discretion here. Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Irwin v. Whirley, Tex.Civ.App. (Waco) NWH, 538 S.W.2d 150.

Contention 4 asserts the trial court erred in providing in its judgment plaintiffs could pay taxes after reassessment within 90 days following reassessment without paying penalty and interest. Plaintiffs have tendered $9,188.64 on such taxes as may be found due upon reassessment. Defendants have the right to reassess and value plaintiffs’ property in accordance with the law, and to collect such taxes as may lawfully be due thereon. Plaintiffs are entitled to application of the amount tendered on all taxes, penalty and interest which may be lawfully due, as of the date of tender. We think the trial court exceeded its authority in providing plaintiffs could pay within 90 days following reassessment without penalty and interest, and accordingly reform that portion of the judgment to delete the words “with neither penalty nor interest to accrue on such reassessed taxes until 90 days after reassessment and notice of that fact given to plaintiffs”.

All defendants’ points and contentions have been considered and are overruled, except as to reformation of the judgment above.

Costs of appeal are taxed against defendants.

REFORMED AND AFFIRMED.


author: GUITTARD, Chief Justice.

text:
    Ronald E. ATTAWAY, Appellant, v. CITY OF MESQUITE and Firemen’s and Policemen’s Civil Service Commission, Appellees.
    No. 19387.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 10, 1978.
    Rehearing Denied Feb. 10, 1978.
    Ted B. Lyon, Jr., Mesquite, for appellant.
    Elland Archer, City Atty., Mesquite, for appellees.
   ON MOTION FOR REHEARING

GUITTARD, Chief Justice.

Ronald Attaway, a member of the Mesquite Police Department, attempted to appeal to the district court from an order of the City Firemen’s and Policemen’s Civil Service Commission sustaining the action of the Chief of Police in suspending him for a period of ten days. The trial court dismissed his attempted appeal for want of jurisdiction. On original submission, we affirmed the dismissal in an unpublished memorandum opinion on the ground, among others, that appellant had no statutory right of appeal of the Commission’s order, as held in Fox v. Carr, 552 S.W.2d 885, 887 (Tex.Civ.App.—Texarkana 1977, no writ), and that he had no right of review of the Commission’s order for deprivation of a constitutionally protected right, since he had no vested property right in continued public employment, as held in City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 792 (1951).

In his motion for rehearing, plaintiff argues that even though he may have had no vested property right in his employment, his right of judicial review, as recognized in Hancock, extends to allegations of deprivation of other constitutional rights, including his right of free speech, which he asserts was infringed by the Commission’s order. Accordingly, we have re-examined the record and relevant authorities to determine whether plaintiff has shown a denial of his right of free speech. We conclude that no such denial is shown.

The petition alleges that plaintiff was suspended for ten days “because he allegedly placed a cartoon on the bulletin board of the Mesquite Police Association which depicted a supervisor in an unfavorable light” and that such suspension was “a violation of his First and Fourteenth Amendment rights under the United States Constitution.” Defendant filed an answer and motion to dismiss for want of jurisdiction. After a hearing, the trial court dismissed the action on the ground that plaintiff had no right to appeal to the court from a disciplinary suspension of less than fifteen calendar days. In lieu of a record of that hearing, the parties have submitted on this appeal an “agreed statement of facts,” which shows that plaintiff placed a cartoon on the bulletin board of the police association and that he was suspended for disrespect shown to his supervisory officer and conduct subversive to the good order and discipline of the department. A copy of the cartoon is attached. The agreed statement recites that the association’s bulletin board, where the cartoon was placed, is located in the squad room, which is used for police squad meetings and is not open to the public.

Counsel for plaintiff does not contend that the cartoon in question was a serious comment on a matter of public interest. On oral argument, he takes the position that it was exhibited as a joke, but he argues that a disciplinary suspension imposed for making a joke which “depicted a supervisor in an unfavorable light” was a denial of plaintiff’s right of free speech under the First and Fourteenth Amendments.

We conclude that the right of free speech does not extend so far. We recognize that a person does not by accepting public employment surrender his right as a citizen to comment on matters of public importance, even with respect to the conduct of his superiors. His freedom in this respect, however, is not as broad as that of the general public, since weight must also be given to the effective operation of the public service. The leading authority on this point is Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), in which the Supreme Court held that a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. The Court recognized that the state has interests in regulating the speech of its employees that “differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,” and stated:

The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The balance thus stated in Pickering has been found to weigh in favor of a policeman where his utterances concerned matters of public interest, were not directed to any person with whom he would be in daily contact, and created no problem of discipline or disharmony among co-workers. Brukiewa v. Police Commissioner of Baltimore, 257 Md. 36, 263 A.2d 210, 215 (1970). It has been found to weigh against a fireman who was suspended for five days for criticism aimed at immediate superiors and found to be false, divisive, disruptive, and detrimental to the discipline of the fire department. Fisher v. Walker, 464 F.2d 1147, 1152 (10th Cir. 1972).

We find that in the present case, likewise, the balance weighs against the employee. The cartoon in question, as modified by plaintiff, attributes grossly immoral personal conduct to the assistant chief of the department. If intended as a joke, it may, nevertheless, be interpreted as holding the assistant chief up to ridicule in the eyes of the police officers over whom he presumably had the responsibility to maintain discipline. Plaintiff makes no claim that it was intended as a serious contribution to public discussion on a matter of general interest. Consequently, we hold that no infringement of the constitutional right of free speech has been shown.

Plaintiff also argues that the police department rules he was charged with violating are unconstitutionally overbroad. We do not find that he raised this question in the trial court by pleading or otherwise. The text of the rules is not before us, since the agreed statement of facts only states the grounds of the suspension, and we cannot infer the complete text from this statement of grounds. Consequently, we cannot reverse the judgment for this reason.

Motion for rehearing overruled.


text:
    Carroll Frances Cason ANDERSON, Appellant, v. Clarence Eugene ANDERSON, Appellee.
    No. 19432.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 13, 1978.

      William W. Wilson, Witts, Vanberg & Wilson, Dallas, for appellant.
    Fred Kolodey, James W. Massie, III, Ko-lodey & Thomas, Dallas, for appellee.
   GUITTARD, Chief Justice.

Carroll Frances Cason Anderson appeals from an order of the domestic relations court denying specific performance of that portion of a property settlement agreement requiring her former husband, Clarence Eugene Anderson, to furnish additional information concerning property accumulated during the marriage. We affirm on the ground that specific performance is not a proper remedy for respondent’s failure to furnish the information demanded.

The present action was commenced by petitioner as a proceeding to hold respondent in contempt for failure to obey the divorce decree, which approved and incorporated a written “agreement incident to divorce.” By amendment, petitioner added a count for specific performance, alleging that the agreement approved by the court was expressly conditioned on truthfulness of the disclosures previously made by respondent of the assets of the community estate and expressly provided that respondent furnish the financial information requested from him at his deposition. The petition further alleges that the parties had amended the agreement by a document, later reduced to writing and signed on their behalf by their attorneys, specifying that respondent should furnish a copy of his 1975 income tax return within thirty days after filing, and that he should furnish such other financial information as might be requested in writing within thirty days after the granting of the divorce. The amended petition alleges that a written request for such information was made within the time specified, but that respondent had willfully failed to furnish any such information. Petitioner prays that respondent be held in contempt, and, in the alternative, that he be specifically ordered to provide the information requested.

At a trial without a jury, the court excluded the alleged amendment on the ground that there was no evidence that it had been executed by respondent’s counsel or by anyone with real or apparent authority to execute it on behalf of respondent. The court also excluded a letter from petitioner’s counsel specifying the information requested. The order appealed from denied the petitioner’s motion for contempt and all other relief sought in the amended petition.

This order is not appealable insofar as it refuses to hold respondent in contempt. Hamborsky v. Hamborsky, 497 S.W.2d 405 (Tex.Civ.App.—San Antonio 1973, no writ). Accordingly, petitioner does not attack that part of the order, but complains only of denial of her claim for specific performance. She contends that the court erred in excluding the amendment and in holding it to be void. She argues that she has no adequate remedy at law because the information that respondent agreed to furnish is unique and cannot be obtained from any other source. Respondent replies that the court properly held that execution of the amendment had not been proved and that, in any event, specific performance would not have been proper because there was no showing that the information could not have been obtained by a subpoena duces tecum or other method of discovery. Petitioner argues that these remedies are available only if she files some other kind of suit concerning the property and that she is in no position to file such a suit until respondent furnishes the information he has agreed to furnish.

We conclude that the equitable remedy of specific performance is not available to compel disclosure of information that could have no value in itself and could be important only as the basis for further litigation. Specific performance is not a remedy of legal right, but rests in the sound discretion of the court and will not be decreed unless the contract can be completely enforced so as to secure substantially all that the parties contemplated at the time the contract was made. Nash v. Conatser, 410 S.W.2d 512, 519, 520 (Tex.Civ.App.—Dallas 1966, no writ). If petitioner is unable to sue for specific property because of respondent’s failure to furnish the information demanded, she may, nevertheless, file her suit, alleging that the property settlement was conditioned on truthfulness of the information previously furnished, that defendant had agreed to furnish additional information, but had failed to do so, and that in view of such failure she had reason to believe that defendant had in his possession assets of the community estate not enumerated in the previous settlement. On filing such a petition, all of the discovery procedures provided by the rules would be available, the petition could be amended in the light of any information obtained by such discovery, and judgment could then be rendered finally settling the rights of the parties. The present proceeding would settle nothing, even if this order were reversed and the relief sought by petitioner were granted. Another suit would be required before petitioner could obtain her ultimate relief.

If litigants were thus permitted to split their disputes into fragments and to pursue each fragment to final judgment through trial and appellate courts before proceeding with the next, the courts would be burdened unnecessarily and the administration of justice would be delayed. In this case, to grant specific performance would be to permit the parties to break down into three separate actions a controversy that should have been finally concluded in the original divorce action. If petitioner was not satisfied with respondent’s disclosures at his deposition or otherwise, she should have pursued her discovery remedies until all relevant information was furnished. Even though she may have been induced not to do so by respondent’s assurance that he would make further disclosures, the court would have been well advised not to approve the settlement so long as the door was left ajar for further litigation. If the amendment to the settlement agreement had been submitted to the court, it might well have been disapproved for just that reason.

In short, petitioner had adequate discovery procedures available in the divorce action, but failed to pursue them, and she still has such procedures available in a later suit if she has any reason to believe that other assets exist that respondent has not disclosed. Consequently, we hold that no ground for the equitable remedy of specific performance has been shown.

Affirmed.


text:
    Benita Stephens WEBB et al., Appellants, v. JUSTICE LIFE INSURANCE COMPANY et al., Appellees.
    No. 19402.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 14, 1978.

      John S. Walker, Center, for appellants.
    Michael R. Knox, Thompson, Coe, Cousins & Irons, Dallas, Otto A. Ritter, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for appellees.
   GUITTARD, Chief Justice.

Benita Stephens Webb sued two life insurance companies for death of her husband allegedly caused by the negligent driving of defendants’ soliciting agent, Huie Andrew Spears. Defendants moved for a summary judgment on the ground that Spears was an independent contractor. The court granted the motion, and plaintiff appeals, contending that fact issues are raised as to whether Spears was on a special mission as an employee of defendants on the occasion in question and as to whether defendants were negligent in failing to discover that he was an incompetent or careless driver. We hold that no fact issues are raised in these respects and, accordingly, we affirm the summary judgment for defendants.

The record is clear that the general relationship of Spears to defendants was that of an independent contractor. The summary judgment proof, which includes Spears’ deposition and certain documentary evidence, shows that Spears was working under a written contract, signed in 1959, providing for his employment on a straight commission basis to solicit business and write applications for insurance. He worked out of his home and was never required to report in person to defendants’ Dallas offices. He used and maintained his own automobile and was not reimbursed for gasoline or other travel expenses. Defendants in no way controlled the details of his work, and only occasionally provided him with names of potential clients, which he was at liberty to disregard. Thus, the evidence shows as a matter of law that he was not an employee under defendants’ control. International Security Life Insurance Co. v. Henderson, 455 S.W.2d 200 (Tex.1970).

As evidence of a special mission rendering this general rule inapplicable, plaintiff relies on a letter written to Spears by one Stallings, a representative of defendant Justice Life Insurance Company. This letter advised Spears that the amount of the premium he had collected from a certain policyholder had been incorrectly calculated and suggested that he explain the mistake to her. Since the full amount of the premium had been charged to Spears, the small difference to be collected would have been Spears’ own money. He was on his way to see this policyholder when the collision in question occurred.

We find nothing in the letter from Stallings that would change the status of Spears to that of an employee under the special control of the defendant insurance company. The letter does not direct when he should make the visit or how he should travel or any other details of the mission. The only direction concerns the ultimate result, correction of the mistake concerning the amount of the premium. Thus, the case differs from that before this court in Clark v. Texaco, Inc., 382 S.W.2d 953 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.). That decision rests on evidence that the defendant’s representative was present at the alleged independent contractor’s place of business and was personally giving instructions concerning the contractor’s activities in testing the vehicle involved in the collision shortly before the collision occurred.

We recognize that under some circumstances, an employer may be held liable for negligence in selecting an incompetent independent contractor. See generally An-not., 78 A.L.R.3d 910 (1977). The rule is stated in Restatement (Second) of Torts, § 411 (1965):

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor:
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.

The present case does not fall within this rule because Spears was not employed to do any work which would involve the risk of physical harm, and neither was he employed to perform any duty that defendants owed to third persons. He was employed to sell insurance, an activity that involved no risk of physical harm to plaintiff’s husband or anyone else. His choice of transportation was his own. He could have performed his contract on foot, by employing someone to drive for him, or even by telephone or by mail. Only if performance of his contract had included driving an automobile were defendants required to investigate his competency to drive.

The rule formulated in the Restatement is supported by Moore v. Roberts, 93 S.W.2d 236, 238-39 (Tex.Civ.App.— Texarkana 1936, writ ref’d). There a contract for hauling materials contemplated that the contractor would use his own truck. The employer’s duty of care was held sufficiently discharged by an inquiry as to whether the contractor was competent to perform the contract and was held not to include a particular inquiry as to whether a driver employed by the contractor had a chauffeur’s license or whether the brakes of the truck were kept in good working order. The court said that the contractor’s negligence in these respects would not establish that he was not a competent contractor. The rationale of the opinion appears to be that since the employer used sufficient diligence to determine that the contractor was generally competent to perform the work he was employed to do, the employer had no responsibility for incidental matters within the contractor’s exclusive control.

The present ease differs from Moore in that defendants here did not contract with Spears to operate a vehicle, but only to sell insurance. Consequently, they did not have even a general duty to inquire into his competency to drive.

Affirmed.


author: DODSON, Justice.

text:
    KIMBELL, INC., Appellant, v. Leon C. MORENO, Appellee.
    No. 8830.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 21, 1978.

      Crenshaw, Dupree & Milam (Cecil Kuhne), Lubbock, for appellant.
    John J. C. O’Shea, Lubbock, for appellee.
   DODSON, Justice.

This is a venue case. Leon C. Moreno, plaintiff-appellee, filed suit against Kim-bell, Inc., defendant-appellant, in the 140th District Court of Lubbock County, Texas, seeking personal injury damages. Moreno alleged he slipped and fell on a piece of lettuce and an uneven floor in Kimbell’s grocery store. Kimbell filed a plea of privilege to be sued in Tarrant County, Texas. Moreno responded with a controverting plea under subdivision 9a of Tex.Rev.Civ. Stat.Ann. art. 1995 (1964). After a hearing without a jury, the trial court denied Kim-bell’s plea. Kimbell appeals to this court. We reverse and render.

The right to be sued in the county of one’s residence is a valuable right. The filing of a plea of privilege establishes the right to change venue unless the opposing party proves the case comes within one of the exceptions to the venue statute. Rule 86, Tex.R.Civ.P.; Keystone-Fleming Transport, Inc. v. City of Tahoka, 277 S.W.2d 202 (Tex.Civ.App.— Amarillo 1954, writ dism’d).

Under subdivision 9a of art. 1995, an action based on any form of negligence may be maintained in the county where the act or omission of negligence occurred, if the plaintiff established by a preponderance of the evidence that an act or omission of negligence occurred in the county where suit was filed; that such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment; and that such negligence was a proximate cause of plaintiff’s injuries.

Moreno alleged that both a piece of lettuce and the uneven floor caused his fall. He claimed he established the necessary venue facts to maintain his action in Lubbock County, Texas, under each of the alleged incidents of negligence.

Initially, we consider the matter of the lettuce on Kimbell’s floor. Both parties agree that Moreno must establish that Kim-bell was negligent by proving one of the following independent issuable facts:

(1) that Kimbell put the piece of lettuce on the floor, or

(2) that Kimbell knew that the piece of lettuce was on the floor and willfully or negligently failed to remove it, or

(3) that the piece of lettuce had been on the floor for such a period of time that it would have been discovered or removed by Kimbell in the exercise of ordinary care. See M System Food Stores, Inc. v. Davis, 508 S.W.2d 475 (Tex.Civ.App.—El Paso 1974, no writ), and Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex.Civ.App.— Dallas 1973, writ ref’d n. r. e.).

The trial court found, among other things, the following:

[1] At the time Plaintiff [Moreno] fell . a piece of lettuce was on the floor of Defendant’s [Kimbell] store.
[2] The piece of lettuce had been on Defendant’s [Kimbell] floor for such a period of time that Defendant or its servants, agents or employees should have discovered it in the exercise of ordinary care.
[3] Defendant’s [Kimbell] negligence was a proximate cause of Plaintiff’s [Moreno] injuries.

Moreno, in his brief and in oral argument before this court, conceded that there was no evidence or insufficient evidence to support the trial court’s finding “that the piece of lettuce trimming had been on the floor for such a period of time that it would have been discovered and removed by Appellant [Kimbell] in the exercise of ordinary care.” After reading the statement of facts and applicable cases, we agree with Moreno’s concession.

The trial court did not find that Kimbell put the lettuce on the floor or knew the lettuce was on the floor and willfully or negligently failed to remove it. Under Rule 385(e), Texas Rules of Civil Procedure, the trial court is not required to make and file findings of fact and conclusions of law on a plea of privilege hearing. However, if the trial court does, then it must make findings on all material issues in the case, and “no presumption will be made by the appellate court of a finding in favor of a material issue on which findings were omitted.” Bryant v. Kimmons, 430 S.W.2d 73, 75 (Tex.Civ.App.—Austin 1968, no writ). Also, express findings made by a trial court cannot be “ ‘extended by implication to cover further independent issuable facts.’ ” Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, 634 (1957). Kimbell says the evidence is neither legally nor factually sufficient to support an express finding for Moreno on these issues.

Moreno attacks the trial court’s failure to find these essential facts in his favor. In cross-point one, he says, “The Trial Court erred in failing to find that Appellant [Kimbell] put the piece of lettuce trimming on the floor when there was sufficient evidence of probative weight to demonstrate such fact,” and in cross-point two, “The Trial Court erred in failing to find that Appellant [Kimbell] knew the piece of lettuce trimming was on the floor but willfully or negligently failed to remove it.” However, he fails to challenge the absence of a corresponding proximate cause finding in connection with these issues.

The evidence in this case indicated Moreno slipped and fell on a small piece of lettuce on the floor of Kimbell’s store. None of the witnesses testified when or how the lettuce came to be on the floor. No one saw the lettuce on the floor before Moreno fell. Moreno’s son Roger, an employee of the store, testified that he swept the entire store commencing approximately 45 minutes before Moreno fell. He swept the particular aisle where Moreno fell. He did not sweep up any produce trimmings or lettuce from the area.

Moreno stated he went into the store to see his son and to buy some groceries. When asked about the circumstances of his fall, Moreno testified:

A I went to get some lunch meat and when I reached to get the lunch meat and turned around to start to walk, that’s when I slipped and fell.
Q All right. What did you feel when you slipped and fell?
A Well, I just felt slippery, something slipped.

Moreno further testified that the lettuce piece was about the size of a dollar coin; that his shoe had a piece of lettuce on it about the size of a dime; that the lettuce was green in color; that he had no idea how, the lettuce got on the floor; and that he did not see it at the time of his fall or earlier while shopping in the same area of the store.

Roger Moreno testified that the produce manager had carried lettuce from the back of the store to the display area constantly on the day of the fall and that he generally passed over the area where the fall occurred. However, he stated that he could not say the produce manager brought lettuce from the back area of the store to the display counter between the time he swept the aisle and his father’s fall. He further said that he did not know how the piece of lettuce got on the floor or who put it there or how long it had been on the floor.

Mario Devilla, another store employee, was also called by Moreno to testify at the hearing. He did not see Moreno fall. He did not know specifically when the produce manager made trips carrying lettuce from the back of the store to the display area. He did not know “whether that lettuce fell off the produce manager’s cart or whether a customer dropped it.” He did not see the lettuce on the floor before the accident nor did he think the lettuce could have been easily dropped by a customer because the lettuce was wrapped in plastic. He said “. . . when you trim it, as soon as you trim it you put the plastic on it, put it in the cart and truck it to the front.” He said the produce manager “was trimming it right by — the buggy he was using a lot of times to trim the lettuce in is the same one he trucks it up to the front with.”

Moreno relies on Safeway Stores, Inc. v. Leek, 543 S.W.2d 207, 210 (Tex.Civ.App.—Waco 1976, no writ) to establish that his evidence was sufficient to merit a fact finding. In.Leek the defendant store attacked the sufficiency of evidence to support an adverse jury finding that the store “caused the produce trimmings to be on the floor.” The court found the evidence sufficient to support the finding. Although Leek somewhat . resembles the case before us, it presents different factual and procedural considerations. It is not controlling here.

In support of his position under cross-point one, Moreno alternatively relies on the doctrine of res ipsa loquitur in attempting to establish the store’s negligence from the facts surrounding the fall. However, res ipsa loquitur does no more than provide some evidence from which the trier is free to infer negligence. It does not compel such an inference nor does it raise a presumption of negligence. Mobil Chemical Company v. Bell, 517 S.W.2d 245, 251 (Tex.1975). The Supreme Court stated in Bell that the plaintiff continues to have the burden of persuading the trier of fact by a preponderance of the evidence. Even if Moreno had established the factors necessary to invoke the doctrine, he nevertheless failed to secure a finding of negligence other than the one he conceded was without evidentiary support. In Bell the court also noted that only under extraordinary circumstance could the facts compel the conclusion of negligence as a matter of law. Id. at 252. Moreno failed to persuade the trier of fact, and these facts certainly do not compel the conclusion of negligence.

The law of this state does not make a storekeeper an insurer of his invited customers. Furr’s, Inc. v. McCaslin, 335 S.W.2d 284 (Tex.Civ.App.—El Paso 1960, no writ). The fact that a foreign substance is on the floor is not sufficient to warrant an inference that the storekeeper had placed or left it there or knew of its presence and negligently failed to remove it or that it had been there a sufficient length of time to enable the storekeeper to discover and remove it. Dill v. Holt’s Sporting Goods Store, 323 S.W.2d 644 (Tex.Civ.App.—Houston 1959, no writ). We conclude that the res ipsa loquitur doctrine does not apply to this case.

In support of his contention that Kimbell knew the piece of lettuce was on the floor and willfully or negligently failed to remove it, Moreno claims a purported “admission against interest” made by Bill Henry, Kimbell’s meat supervisor for its West Texas Division. Henry’s statement was related to the court by Mario Devilla. Devilla testified that after telling the produce manager that a man had just fallen on some produce trimmings, Henry said, “You are going to have to be careful about cleaning up your mess because . . . [s]ome-body else might fall.” In his brief Moreno also contends Henry’s knowledge of lettuce on the store’s floor is apparent from his statement.

Kimbell properly objected that Devilla’s proposed testimony was inadmissible hearsay. The trial court admitted the testimony after plaintiff alleged it qualified as an admission against interest by a Kim-bell employee. However, a special need to rely on hearsay must be shown before it is admissible. Texas requires proof that the declarant is not available to testify before a declaration against interest can be heard. Big Mack Trucking Company, Inc. v. Dickerson, 497 S.W.2d 283, 290 (Tex.1973). Moreno made no attempt to show that Henry was unavailable. Therefore, the statement attributed to Henry is not admissible as a declaration against interest and is not competent evidence to support Moreno’s claim of negligence. Liberty Mutual Insurance Company v. Heard & Jones Drug Stores, Inc., 446 S.W.2d 911 (Tex.Civ.App.—Amarillo 1969, no writ). This statement cannot form the basis for any part of the trial court’s judgment. Sampson v. Apco Oil Corporation, 476 S.W.2d 430 (Tex.Civ.App.—Amarillo 1972, no writ).

Moreno had the burden of proof on the issues of the store’s negligence concerning the lettuce. The trial court’s failure to affirmatively find in favor of Moreno on either the first or second independent issuable facts when coupled with Moreno’s concession of the third fact leaves the judgment without support of an essential element on this phase of the action.

For this court to affirm the judgment, the evidence must conclusively establish one of the three independent acts of negligence as a matter of law. Alternatively, for Moreno to obtain a new trial he must show the failure of the trial court to find in his favor on one of the issues is so against the great weight and preponderance of the evidence as to be manifestly wrong. He did neither. In making this determination, we have considered all of the evidence presented in the record, both favorable and unfavorable to his position.

The judgment must be reversed and rendered in favor of Kimbell, because its legal sufficiency points one and nine must be sustained. By these points, Kimbell says Moreno failed to establish venue under subdivision 9a because the evidence is legally insufficient (no evidence) to support an express finding in his favor on any of the essential acts of negligence related to the piece of lettuce on the floor.

In determining Kimbell’s legal sufficiency points we have considered only the evidence in the record which is favorable to Moreno’s position on each act of negligence to ascertain if there is any evidence of probative force to establish that Kimbell put the lettuce on the floor or knew it was there and willfully or negligently failed to remove it. We conclude the evidence on these issues presents no more than a series of surmises: that the cart used to transport produce from the rear of the store might have had the piece of lettuce on it; that the produce manager may have passed the cart over the area of Moreno’s fall; that the piece of lettuce might have dropped off the cart; that it may have been left on the floor by Kimbell; and that all of these events might have occurred after the floor was swept and before Moreno fell. We agree, as a matter of law, that the trial court correctly failed to find in favor of Moreno on these issues from this evidence. See Foodway, Inc. v. Lopez, 480 S.W.2d 227 (Tex.Civ.App.—El Paso 1972, no writ); J. Weingarten, Inc. v. Bradshaw, 438 S.W.2d 435 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.). Therefore, Kim-bell’s points of error one and nine are sustained.

For Moreno to maintain venue in Lubbock County, therefore, the trial court’s findings concerning the store’s uneven floor must be upheld. The trial court found that a small ridge existed in Kimbell’s floor, that Kimbell maintained the floor, that the ridge was an unreasonably dangerous condition, that Kimbell knew or should have known of the ridge in its floor, that Kimbell negligently failed to warn Moreno of the ridge, and that such negligence was a proximate cause of Moreno’s injuries.

Kimbell challenges the legal and factual sufficiency of these findings of fact. Specifically, Kimbell disputes the findings that the ridge was unreasonably dangerous (point five) and was a proximate cause of Moreno’s injuries (point seven).

The record reveals that the floor irregularity, variously described as a “ridge” and “wave,” was one-quarter of an inch deep. From a photograph of the aisle, Moreno’s exhibit one, the “ridge” appears to be a very shallow and narrow depression running directly across the aisle. When Moreno’s son Roger was asked whether the irregularity caused a significant bump when a buggy car was rolled over it, he testified that “it’s not really that noticeable.” He added the sensation was “not a bump, you could feel it.” This was the only evidence that could be construed as indicating the potential effect of the floor on the store’s invitees.

In effect, Moreno assumed that he fell on the ridge. He did not see the ridge before his fall. However, he went back to the store at a later date and decided that the ridge was “about the same place where [he] slipped.”

It is fundamental that reasonable foreseeability is an element of both negligence and proximate cause. See Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961). We conclude from the descriptive evidence that Kimbell could not have foreseen that the so-called ridge or depression in the floor could cause Moreno to fall. Proximate cause embraces at least two distinct concepts, both of which must be present. First, there must be cause in fact, that is a cause which produces an event and without which the event would not have occurred, and second, foreseeability. Baumler v. Hazelwood, supra. The physical aspects of the depression do not bespeak a negligent or dangerous condition. There is no other evidence of probative force in the record showing or from which we may infer that the ridge caused Moreno to fall. He testified, “I just felt slippery, something slipped.” Moreno does not claim he tripped on the ridge, there is no evidence the lettuce was on the ridge, nor is there evidence of prior problems with other persons slipping, tripping or falling on the ridge or depression. The meager descriptive evidence of the depression falls short of a prima facie showing of an unreasonably dangerous condition. See J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968) and J. C. Penney Company v. Perryman, 261 F.2d 826 (5th Cir. 1958).

Kimbell’s points of error five and seven are sustained. Thus, Moreno failed to establish the necessary facts to maintain venue under subdivision 9a of art. 1995 based on either the piece of lettuce or the ridge on the floor. Accordingly, the order of the trial court overruling Kimbell’s plea of privilege is reversed and we render judgment that the plea of privilege of the defendant Kimbell, Inc., is sustained and the cause is hereby transferred to a district court of Tarrant County, Texas.

      . The trial court’s failure to find a fact vital to Moreno’s action need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973).