author: BISSETT, Justice.

text:
    GUNDERLAND MARINE SUPPLY, INC., Appellant, v. Julius BRAY, Appellee.
    No. 1311.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      Allan L. Potter, Potter & Potter, Corpus Christi, for appellant.
    Richard W. Crews, Jr., Sorrell, Anderson & Sorrell, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover damages for an alleged breach of an implied warranty in connection with the sale of a Bayliner Cabin Cruiser. Suit was filed by Gunderland Marine Supply, Inc. (Gunderland) against Julius Bray (Bray) on June 4, 1976. The jury answered all issues favorably to Bray, and judgment was rendered that Gunder-land take nothing by its suit. Gunderland has appealed.

The jury, in response to the two special issues submitted, found: Bray did not impliedly warrant “that title conveyed shall be good in Plaintiff Gunderland Marine Supply, Inc.” in the sale of the boat (Special Issue 1); Bray did not impliedly warrant that “title transfer shall be rightful to Plaintiff Gunderland Marine Supply, Inc.” in the sale of the boat (Special Issue 2). Gunderland filed a motion for new trial and a motion for judgment non obstante vere-dicto, both of which were overruled.

Gunderland attacks the findings by the jury by “no evidence”, “factually insufficient evidence” and “against the great weight and preponderance of the evidence” points. It further contends that the trial court erred in overruling its motion for judgment non obstante veredicto in that there was no specific language in any written instrument pertaining to the sale of the boat in question, nor was there any evidence of any circumstances incidental to the sale which constituted notice to Gunderland that a) Bray did not claim title in himself, or b) that he was purporting to sell only such right or title as he or a third person may have had in the boat. Complaint is also made of jury misconduct.

We first consider Gunderland’s “no evidence” points. In disposing of those points, we view the evidence in its most favorable light in support of the jury’s findings, and consider only the evidence which supports those findings and reject all evidence and permissible inferences contrary thereto. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1974).

It was stipulated that the Bayliner boat, the boat in question, was a stolen boat at all times material to this suit, and that neither Gunderland nor Bray knew that it was stolen until long after the transaction hereinafter set out had been completed. It was further stipulated that Gunderland, in the event Bray was held liable, would be entitled to recover $8,000.00 as damages for breach of warranty.

Gunderland is a dealer in new and used power boats and outboard motorboats. It also sells boats owned by third parties under brokerage agreements. In September, 1974, the boat here involved, a 25-foot Bay-liner Cabin Cruiser, was located in Gunder-land’s boat storage yard under a brokerage agreement with Mr. George A. Breckenridge, the ostensible owner thereof. Under the brokerage agreement, Breckenridge listed the boat on September 17, 1974 with Gunderland for 30 days. The sales price for the boat and its trailer was $12,000.00. In the event Gunderland sold the boat, it would be paid a 10% commission on the sales price. Bray visited the yard on several occasions, inspected the boat and talked to Mr. Vic Lakatos, Gunderland’s store manager, about buying it. About 30 or 35 days after the boat had been listed with Gunderland for sale, Breckenridge removed the boat from the yard. Breckenridge later sold the boat to Bray on December 11, 1974, for $5,000.00 cash. The trailer was not included in the sale.

In late 1974 or early 1975, Bray began negotiating with Gunderland for a 28-foot Silverton boat by trading-in the Bayliner boat, which he had previously purchased from Breckenridge. Lakatos went to Bray’s home where the Bayliner boat was located, and examined it. A sales agreement was signed on January 20, 1975, whereby it was agreed: Gunderland would sell the Silverton boat to Bray for $20,-700.00, and would accept the Bayliner boat as a trade-in; Bray would be allowed $7,270.00 on the trade-in. The Silverton boat was sold and delivered to Bray; the Bayliner boat was accepted by Gunderland as a trade-in; Bray paid Gunderland $14,-040.00 in cash, which included $540.00 sales tax.

After the Bayliner boat had been traded in, Gunderland refurbished it, and sold it to Mr. Walter Mertz for $8,000.00 cash. It was later discovered that it had been stolen from its lawful owner (in Colorado) before it was placed with Gunderland by Breckenridge under the aforesaid brokerage agreement. The boat was picked up (from Mertz) by the Texas Parks and Wildlife Department on October 17, 1975. Gunder-land then refunded the purchase price ($8,000.00) to Mertz. On November 10, 1975, Gunderland made a written demand upon Bray for payment of $8,000.00. Bray refused to pay, and this suit was subsequently filed.

In connection with the sale of the Bayliner boat by Breckenridge to Bray, Breckenridge executed a bill of sale which contained the following language:

“I do further state that the undersigned is the legal and lawful owner of the above described vehicle . . ”

In addition, Breckenridge endorsed over to Bray a “blue card” on the boat, theretofore issued to him by the Parks and Wildlife Department. The “blue card” is not evidence of title but is merely evidence that the boat has been registered with the Department. The requirement for the issuance thereof attaches only when the boat is placed in the water. The “blue card” merely represents compliance with the regulations promulgated by the Department. Gunderland, as a boat dealer, was not required to register the boat with the Department.

Lakatos testified that when a boat is delivered to Gunderland’s under a brokerage agreement, title to the boat is not examined by Gunderland, and a prospective buyer is always told that someone other than Gunderland owns the boat. That testimony was not disputed. Where an offer to purchase a brokered boat is made, Gun-derland then submits the offer to the owner, and if a sale is made, it is Gunderland’s practice to see that a “blue card” is furnished the purchaser, and that the owner executes and delivers a bill of sale to the purchaser.

Gunderland was not involved in the sale of the Bayliner boat to Bray by Breckenridge. Bray testified, without objection, that Breckenridge told him that he bought the boat from a dealer in Florida, and that he (Breckenridge) had “a warranty card” with it, and that the card was in the boat when he traded it to Gunderland. However, Bray further stated that he did not cheek the title to the boat, and, in answer to the following questions propounded to him, said:

“Q Did you ever inquire of Mr. Breckenridge if he had any type of certificate of title or anything from Florida?
A No sir. All the boats I had any dealings with, all you needed was owner’s card.
Q Did you ever inquire if he had a bill of sale?
A No, sir, I did not.”

Breckenridge did not testify at the trial. Lakatos was not asked about the “warranty card”. Florida law on the subject, if any, was not introduced in evidence, and there was no stipulation made as to such law.

In connection with the consummation of the sale of the Silverton boat, Bray delivered the bill of sale on the Bayliner boat which he had received from Breckenridge to Gunderland. At the same time, he also delivered the “blue card” which Breckenridge had “endorsed” over to him.

At the time of the transactions involved in this case, there was no certificate of title act or title registration law in effect dealing with titles to motor boats. That was changed by the 65th Legislature, effective September 1, 1977. See Tex. Parks and Wildlife Code § 31.045 (Supp.1978).

Bray did not execute and deliver a bill of sale on the Bayliner boat to Gunderland. The only instrument in writing concerning the “trade-in” was the sales agreement covering the boat. Since Bray did not expressly warrant the title to the Bayliner boat, the issue to be determined is whether or not he impliedly warranted title under the relevant provisions of Tex. Bus. & Comm. Code Ann. § 2.312 (1968).

In essence, Gunderland contends that there is neither “special language” nor are there any circumstances in the record which exclude or modify the statutory requirement imposed by Subsection (a) of the above mentioned section of the Code which provides for “Warranty of Title” on the Bayliner boat. This is disputed by Bray, who asserts that the facts in the record and circumstances surrounding the sale demonstrate conclusively, or in the alternative, present fact issues to be determined by the jury, that he did not impliedly warrant title to the Bayliner boat. Bray’s position is based primarily on inferences drawn from the following undisputed facts: 1) Gunder-land did not require a bill of sale from him; 2) Gunderland had possession of the boat under a brokerage agreement prior to the sale; 3) Gunderland would have required Breckenridge to give him (Bray) a bill of sale had the boat been sold to him under the brokerage agreement; and 4) Title was not discussed. We do not agree. The facts relied on by Bray are not facts which show that the warranty provided by Subsection (a) of § 2.312 of the Code, was modified or excluded, nor do those facts authorize such an inference.

There was no legal requirement at the time the Bayliner boat was traded to Gun-derland that it require a bill of sale from Bray. The fact that Gunderland had possession of the boat under the brokerage agreement prior to the trade is immaterial to any issue here presented. The fact that Gunderland would have required Breckenridge to have given Bray a bill of sale had the Bayliner boat been sold to Bray under the brokerage agreement has no probative value in determining whether the warranty was modified or excluded under Subsection (b). Bray did not purchase the boat while the brokerage agreement was in force, and what Gunderland might have required of Breckenridge had Bray purchased the boat under the brokerage agreement is not before us in this appeal. Moreover, Breckenridge did execute a bill of sale wherein he warranted title when he sold the boat to Bray. Gunderland was not required to discuss title to the boat.

Under the provisions of Tex. Bus. & Comm. Code Ann. § 2.304 (1968), a trade-in of personal property as part of the purchase price of other personal property is a sale. Here, the trade-in of the Bayliner boat on the Silverton boat constituted a sale. Pursuant to the clear language of § 2.312 of the Code, Bray, as the seller of the Bayliner boat, where he did not expressly warrant the title thereto, nevertheless impliedly warranted the title thereto unless such warranty was excluded or modified in accordance with Subsection (b) thereof. The burden was on Bray to show by evidence of probative value that the implied warranty was modified or excluded when the trade (sale) was made. He did not meet that burden.

There is no evidence of any “specific language” which excluded or modified the warranty provided by Subsection (a) of § 2.312 of the Code. There is no evidence of any circumstances which gave Gunder-land “reason to know” that Bray did not claim title in himself, or purported to sell only the right or title which he or some third person had in the boat.

Applying Subsections (a) and (b) of § 2.312 of the Code to the undisputed facts disclosed by the record, and after carefully reviewing the evidence and permissible inferences most favorable to Bray, as we are required to do, we hold: 1) Bray impliedly warranted that title to the Bayliner boat shall be good in Gunderland; 2) Bray further impliedly warranted that the title transfer shall be rightful to Gunderland; and 3) there is no evidence which modifies or excludes an implied warranty of title. Gunderland’s points 1, 2, 3, 4, 7 and 8, its no evidence points, are sustained.

We further hold that the trial court erred in overruling Gunderland’s motion for judgment non obstante veredicto. We see no reason for further discussion of the evidence. Gunderland’s points 11 and 12 are sustained.

In view of the disposition which we make of this appeal, it is not necessary that we discuss or rule on Gunderland’s remaining points.

The judgment of the trial court is reversed and judgment is here rendered that Gunderland recover of and from Bray the sum of $8,000.00, together with interest thereon at the rate of 9% per annum from July 15, 1977, the date judgment was signed, until paid, and for all court costs.

REVERSED and RENDERED.

      . “§ 2.312. Warranty of Title and Against Infringement; Buyer’s Obligation Against Infringement
      (a) Subject to Subsection (b) there is in a contract for sale warranty by the seller that
      (1) the title conveyed shall be good, and its transfer rightful; and
      (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
      (b) A warranty under Subsection (a) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.”
      ******


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Terry HENDRIX et al., Appellants, v. JONES-LAKE CONSTRUCTION COMPANY et al., Appellees.
    No. 1264.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      Gordon L. Briscoe, Brownsville, Chavez & Barnard, Harlingen, for appellants.
    Marshall W. Graham, Adams, Graham, Jenkins, Graham & Hamby, Harlingen, Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lees.
   OPINION

NYE, Chief Justice.

This is a suit for personal injuries. Appellant, Terry Hendrix, brought suit against appellee Jones-Lake Construction Company (hereinafter Jones-Lake), the owner and general contractor, and appellee Valley Roofing Company (hereinafter Valley Roofing), the roofing contractor, to recover damages for personal injuries Hendrix sustained when he fell through an unguarded skylight opening in the roof of a warehouse under construction in Brownsville, Texas. United States Fidelity & Guaranty Company intervened to recover money previously paid to or on behalf of Hendrix under a workmen’s compensation insurance policy. The jury convicted each defendant of negligence in failing to guard the skylight opening which was a proximate cause of the accident and found contributory negligence on the part of Hendrix. In response to the comparative negligence issue, the jury found Hendrix to be 20% negligent. Thereafter, the trial court granted defendants’ motions for judgment non obstante veredicto on the basis that the open skylights were an open and obvious danger, and therefore, Jones-Lake and Valley Roofing owed Hendrix “no duty” to guard the skylight openings in the roof. Hendrix appeals to this Court from the trial court’s take nothing judgment.

On May 29, 1974, the date of Hendrix’s accident, Jones-Lake, owner and general contractor, and Valley Roofing, the roofing subcontractor, along with other subcontractors, were constructing a block building with a steel substructure to be used as a warehouse. Hendrix was employed as a bricklayer by the W. Merle Hazel Company, the masonry subcontractor on the job. The warehouse was approximately 300 feet long, 120 feet wide and 22 feet high. The warehouse plans and specifications called for 16, 4-foot square skylights located across the roof at 40 foot interyals. In accordance with these plans, the steel erection subcontractor erected the steel substructure for the roof surface and cut holes at appropriate intervals for the skylight openings. Valley Roofing had a subcontract with Jones-Lake to complete the roof surface. The roof surface plans called for a bottom layer of insulation board, covered by three plies of felt paper, tar coated, and finally completely topped with gravel. Jones-Lake employees were responsible for placing the skylight covers over the open holes. This they planned to do after Valley Roofing completed all phases of its roofing job.

The W. Merle Hazel Company, Hendrix’s employer, had the masonry subcontract to lay the concrete blocks from the ground to the top of the steel deck underlying the roof. Prior to the accident, the masons worked from scaffolding located inside the building. At the time of the accident, the blocks had been laid to a height just beneath the bottom of the steel girders and almost to the top of the steel deck. At this height, the position of the steel girders interfered with completing the block wall from the scaffolding located inside the building. The masons then found it necessary to work from the top edge of the roof to complete the job. Half of the crew remained on the scaffold to spread the mortar and to transfer the necessary materials to the other half of the crew on the roof who then laid the blocks in place.

On the day of the accident, May 29,1974, the masons worked approximately two hours on the scaffolding before they split up. Hendrix and two other masons then ascended to the roof from a ladder located outside of the building. Hendrix was the first man to reach the roof top. As he was walking diagonally across the roof toward the location where the masonry crew was working below, Hendrix heard a shout or whistle. He momentarily turned his head in the direction of the noise to determine whether someone was shouting a warning to him. As he turned his head, Hendrix stepped into and fell through the unguarded skylight opening to the ground below. He sustained fractures of four lumbar vertebrae.

Hendrix filed suit against Jones-Lake and Valley Roofing alleging that each defendant was negligent in failing to provide a temporary cover for the skylight openings. At the close of the evidence presented at trial, Jones-Lake and Valley Roofing each filed motions for an instructed verdict predicated on the theory that neither defendant owed Hendrix a duty to cover or protect the unguarded skylights because such skylights constituted an open and obvious danger as a matter of law. The trial court overruled these motions and allowed the case to go to the jury. During the course of the trial, the undisputed evidence showed that the unguarded skylight openings presented a hazardous condition to all of the workmen on the construction project who had to go up on the roof in order to perform their work. It was also undisputed that each foreman of the respective defendants knew of the hazardous and dangerous condition as it would affect Hendrix while discharging his duties as a workman. The court then submitted relevant special issues to the jury which found: 1) negligence and proximate cause attributed to Jones-Lake’s failure to provide a temporary cover on the open skylights; 2) negligence and proximate cause attributed to Valley Roofing’s failure to guard the open skylights with a temporary cover; 3) negligence and proximate cause attributed to Hendrix’s failure to keep a proper lookout; 4) that Hendrix was 20% negligent; and 5) that Hendrix sustained damages in the amount of $80,-790.50. After the verdict was returned, the defendants filed motions for judgment non obstante veredicto stating that the trial court erred in failing to grant the motions for instructed verdicts based on “no duty” doctrine. After a hearing, the trial court granted the motions, disregarded the liability issues pertaining to each defendant, and rendered a take nothing judgment.

Hendrix’s major contention on appeal is that the trial court erred in granting defendants’ motions for judgment non ob-stante veredicto because the unguarded skylight openings did not present open and obvious danger as a matter of law. The granting of a motion for judgment non obstante veredicto is authorized by Rule 301, T.R.C.P., when a directed verdict would have been proper. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.Sup.1967). To sustain the action of the trial court, which granted a judgment non obstante veredicto, it must be determined that there is no evidence on which the jury could have made the findings relied upon. An instructed verdict is proper only under very limited circumstances. Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ); McDonald, Texas Civil Practice, § 11.28.1 (1970).

Appellant’s other point of error is that he produced more than a scintilla of evidence which supports each of the essential jury findings set out above. In our opinion, there is ample evidence in the record to support the jury’s answers to the liability and proximate cause issues which charged each defendant with negligence in failing to guard the open skylights with temporary covers. Both Jones-Lake and Valley Roofing contend, however, that these issues were improperly submitted and the trial court should have instructed a verdict in their favor. In any event, they argue, the trial court correctly granted the judgment non obstante veredicto because the unguarded skylight holes were open and obvious; Hendrix knew the openings were there; that the openings were not hidden or latent; that Hendrix knew and appreciated the danger and that as a matter of law there was no duty to cover or protect the openings or to warn Hendrix of a danger of which he already knew.

Hendrix was a business invitee of the occupiers, Jones-Lake and Valley Roofing. See Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950); Snelling v. Harper, 137 S.W.2d 222, 225 (Tex.Civ.App.—Texarkana 1940, error dism’d judgmt cor.). Before Parker (which we discuss later in this opinion), our Supreme Court outlined the “no duty” doctrine in Halepeska as follows:

“ . . . the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. (Citations omitted). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged of knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.”

Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup.1963).

Stated another way, a defendant owes no duty to an invitee who actually knows and appreciates the nature and extent of a specific danger or who is charged in law with such knowledge. One is charged in law with that knowledge and appreciation if the condition is open and obvious to the invitee. Massman-Johnson v. Gundolf, 484 S.W.2d 555, 556 (Tex.Sup.1972). See also McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). Hendrix had the burden to make a prima facie showing that he did not know of and did not appreciate the particular risk that caused him mischief and that he was not charged in law with knowledge and appreciation of the particular risk.

“ . . . When one speaks of a condition as being open and obvious, the phrase means that there is no dispute in the evidence or the facts which will charge an invitee with knowledge and full appreciation of the nature and extent of danger. It means that knowledge and appreciation of the danger are considered as proved as a matter of law.”

Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, at 458-459 (Tex.Sup.1972).

Representatives of both Jones-Lake and Valley Roofing testified that they had knowledge of the open skylights and that the plans and specifications did not anticipate that these skylights would be covered until Valley Roofing completed its work on the roof surface. There is ample testimony in the record on behalf of both defendants that such open skylights created a potential hazard for workers on the job. Mr. Robinson, the job superintendent in charge of the construction for Jones-Lake, testified that it was foreseeable at the time construction of the building commenced that employees of several subcontractors would be working on top of the roof in addition to the roofing subcontractors’ employees prior to the time the actual skylights were to be installed. Charles Phillips, an owner and partner of Valley Roofing, admitted that his roofers, who worked on the rooftop eight hours a day, were more prepared to meet the dangers inherent in the unguarded openings than other workers who were not accustomed to working around such openings.

Hendrix testified that he was generally aware of the open, unguarded skylight holes on the roof because when he was working inside the building the sun shone through the holes which made the openings highly visible to workers. Hendrix also admittedly was aware of the danger of falling through a hole. The undisputed evidence is, however, that Hendrix had a very limited knowledge and appreciation of the danger of the open skylights as they appeared from a different vantage point — from the top of the roof, looking downward. On the day of the accident, Hendrix fell through the unguarded skylight opening almost immediately after he first attempted to cross the roof.

There is considerable testimony in the record that the visibility of the skylight holes from the vantage point of a person on the roof varied depending upon the weather circumstances. At the time of the accident, the roof was covered with layers of roofing felt paper of various dark shades of black, gray and brown. The evidence showed that these dark colors had a tendency to camouflage the dark skylight openings, particularly on a cloudy, overcast day, looking downward. Edward M. Morris, a safety expert, testified that “the lack of contrast between the edges, the interior edges of the hole, the shadow inside the hole and the shade of the material on the roof, it does deny a clear vision of the hole, especially under cloudy circumstances.” Hendrix testified that on the day of the accident the sky was very overcast with very little sun, if any, to illuminate the exterior edges of the holes. He further testified, in essence, that the holes were not visible in normal peripheral vision because of the general camouflaged condition combined with the weather conditions. Compare W. R. Grimshaw Company v. Zoller, 396 S.W.2d 477 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.); Coffee v. F. W. Woolworth Co., 536 S.W.2d 539 (Tex.Sup.1976), and Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357, 359 (1950).

The testimony showed that both defendants considered the unguarded skylight openings to be a potential hazard, particularly if a worker was not watching for the holes. Both defendants also admitted that there were two major problems inherent in the construction industry, the first being construction site hazards, and the second, worker distraction. Both defendants admitted workers are constantly subject to being distracted by construction site sounds and activity. The safety expert testified that, in effect, shouts are used in the construction industry to alert the workers to be on guard for a particular danger such as “something falling, something swinging, a crane load loose.” He testified that when someone shouts, everyone looks around to make sure the shout is not intended to alert him.

The above mentioned evidence is relevant to Hendrix’s actual knowledge and appreciation of the particular danger and to whether or not the unguarded skylights were so open and obvious to charge him with such knowledge and appreciation as a matter of law. Although he was generally aware of the existence of the unguarded openings from his previous vantage point working inside the building, looking up, he had no proper opportunity to acquaint himself with the danger as it appeared from a different vantage point on the rooftop, looking downward. He testified, in effect, that the holes, as camouflaged by the dark felt paper and lack of sunlight, were difficult to see. Due to the poor visibility, Hendrix could not tell how close he was to the unguarded opening. The record showed that Hendrix turned his head momentarily in response to a shout or whistle. He fell through the hole an instant later. We cannot say that the record establishes conclusively that Hendrix knew and appreciated the extent of the dangers under the fact circumstances of this case. Nor can we say that the holes were so open and obvious to charge him with such knowledge and appreciation of the danger as a matter of law. We hold that the trial court correctly submitted the case to the jury in the first instance. It erred thereafter, by granting the defendants’ motion for judgment non obstante veredicto.

We have concluded that plaintiff Hendrix is entitled to a judgment based on the undisputed evidence and the properly submitted negligent issues, which were supported by sufficient evidence. We also recognize that our Supreme Court has expressly abolished the “no duty” or “open and obvious” concepts in cases that are similar to the one before us. Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.Sup.1978). The parties here, in post-submission briefs, now raise the question of whether the Parker case should specifically control the disposition of this case here on appeal irrespective of the evidence.

Subsequent to the adoption of the comparative negligence statute, Article 2212a, V.A.T.S., Texas lawyers and judges have long known of the progressive abolition of various negligence doctrines that spelled total victory and total defeat for an injured party. See e. g., Davila v. Sanders, 557 S.W.2d 770, 771 (Tex.Sup.1977); Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976) (concurring opinion); Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.Sup.1975); Rosas v. Buddies Food Store, 518 S.W.2d 534, 538-539 (Tex.Sup.1975). Appellees contend that the applicability of Parker is prospective and applies only to cases tried after February 8, 1978, the date the Parker decision was announced by our Supreme Court. The appellants, on the other hand, argue that had the Supreme Court intended to make the abolition of the “no duty” doctrine prospective, Parker would have been affirmed rather than reversed and rendered and our High Court would have made the doctrine applicable to all causes of action arising after the date of its decision in Parker. This advance notice would have allowed owners and occupiers of land to protect themselves against future losses.

Justice Pope, writing for the majority, held in Parker:

“We now expressly abolish the so-called no-duty concept in this case and, as expressed in Farley, ‘henceforth in the trial of all actions based on negligence . . ’ The reasonableness of an actor’s conduct under the circumstances will be determined under principles of contributory negligence.”

Parker v. Highland Park, Inc., supra at 517. Appellees contend that the express language “henceforth in the trial . . . ” means that the Parker decision should be applied only to cases tried after February 8, 1978, the date of the Supreme Court decision. They take the position, in essence, that the “no duty” concept still applies to. this case because the trial court’s judgment was entered on May 23, 1977, even though the validity of that judgment was pending appellate review, and in that sense not final, at the time the Parker decision was reached. On the other hand, Hendrix reasons that had the Supreme Court intended its decision in Parker to be prospective, the Supreme Court would not have abolished the “no duty” concept as to the litigants in Parker. Hendrix says that the holding in Parker represents the Supreme Court’s instruction of what law should govern in the trial of all other cases.

The Supreme Court’s pronounced language is clear. “We now expressly abolish the so-called no-duty concept in this case . ” (Emphasis supplied). What is not so clear is the disposition of cases where the trial court’s judgment has not become final prior to the Parker decision because of a pending appeal. Hendrix speculates and says that had this case already been decided adversely to him, and had his application for writ of error been pending in the Supreme Court (all of which could have been possible), there would be no doubt that the Supreme Court would have reversed and rendered this case along with Parker, or would have decided the issue the same as in Parker had the Parker case arrived after the present case. We agree.

In Parker, Mrs. Parker was injured on October 23, 1971. Her case was tried approximately two years later and decided in the Court of Civil Appeals in 1976. Our case was tried after the Parker case. If we found that it was necessary to apply the no longer accepted “no duty” concept to a case pending before us after the Supreme Court had unanimously abolished the doctrine, it would unnecessarily incur an injustice on an injured party. However, since there is more than a scintilla of evidence supporting the jury’s answers to the issue submitted by the trial court, it is unnecessary for us to reach this conclusion.

The judgment of the trial court is REVERSED and judgment is here RENDERED that appellant Terry Hendrix recover against appellee Jones-Lake Construction Company the sum of $28,782.79, and against Appellee Valley Roofing Company the sum of $19,188.53, and that appellant United States Fidelity & Guaranty Company recover against Jones-Lake Construction Company the sum of $9,996.65 and against appellee Valley Roofing Company the sum of $6,664.43; and for interest from the date of judgment.

REVERSED AND RENDERED.

      . In Farley v. M M Cattle Company, 529 S.W.2d 751, 758 (Tex.Sup.1975), our Supreme Court abolished the doctrine of volenti non fit injuria in negligence actions. Justice Johnson, writing for the majority in Farley, held:
      “We therefore hold that for this trial, and henceforth in the trial of all actions based on negligence, volenti non fit injuria — he who consents cannot receive an injury — or, as generally known, voluntary assumption of risk, will no longer be treated as an issue. Rather, the reasonableness of an actor’s conduct in confronting a risk will be determined under principles of contributory negligence.”


author: YOUNG, Justice.

text:
    Jimmie WOODARD, Appellant, v. MARATHON LETOURNEAU COMPANY, Appellee.
    No. 1276.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      Lee Arnett, Brownsville, for appellant.

      John E. Lewis, Jones & Lewis, McAllen, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal by the plaintiff worker from an unfavorable trial court judgment resulting from a jury trial wherein he sought damages from the owner of the premises for his personal injuries arising from an industrial accident.

Jimmie Woodard sued Marathon LeTour-neau Company for injuries sustained when he fell while single-handedly lifting a heavy sheet of steel plate. Trial was to the court with a jury which decided that Woodard was guilty of two separate acts of contributory negligence. The court rendered a take nothing judgment in favor of Marathon from which Woodard appeals. We affirm.

The evidence indicates that on August 14, 1972, Marathon and Kirk-Mayer, Inc., Woodard’s employer, entered into a contract whereby Kirk-Mayer agreed to hire and oversee construction crews for the subas-sembly of component parts for off-shore drilling rigs appellee was manufacturing.

Kirk-Mayer’s operation was located on a 300 X 125 foot concrete platform, which, at the time of the accident, was crowded with workers, machines, and steel. So crowded, according to Woodard, that from time to time forklifts were unable to reach some areas of the platform to help move large pieces of steel.

Further, according to Woodard, on November 14, 1972, Woodard’s supervisor asked him to section a large sheet of defective steel which was resting on top of several sawhorses. Appellant cut the steel into several smaller pieces and then decided to remove from the sawhorses one of the cut pieces which weighed from 300 to 600 pounds. There were no cranes available to lift the steel, and the work area was so cluttered with scrap steel, hoses, wires and steel sheets that forklifts could not reach him. The team of workers that often helped him move such pieces of steel was working on a different project located on another part of the concrete slab. Woodard then decided to slide the steel off the sawhorses onto his thighs, rotate and drop the steel onto a scrap heap. He followed his intended procedure, but as he was turning, he slipped on a hose or wire and fell onto the scrap steel pile causing serious damage to his back and internal organs.

Woodard sued Marathon for, among other things, breach of contract based on Marathon’s failure to provide Woodard with a lifting crane at the time of the accident. He claimed that the contract between Marathon and Kirk-Mayer required Marathon to provide a “cherry-picker” crane to Kirk-Mayer employees at all times and that he was a third-party beneficiary of that contract.

In answer to special issues the jury found that the occurrence in question was proximately caused by the negligence of Marathon and the contributory negligence of Woodard in the following respects: (1 through 3) that Marathon failed to furnish Woodard with' a “cherry-picker” crane or other lifting device to lift the piece of steel with which Woodard was working; (6 and 7) that Woodard attempted to remove the piece of steel without help; (8 and 9) that Woodard failed to remove the air hoses and electrical lines from his work area before attempting to remove the piece of steel. The jury refused to find (4 and 5) that the occurrence was proximately caused by Woodard’s failure to keep such a lookout for his own safety as a person using ordinary care would have kept. The total damages (10) awarded by the jury were $150,000.00.

Appellant, Woodard, brings forward 19 points of error and appellee, Marathon, brings forward 11 cross points. Woodard’s point 1 contends that the trial court erred in overruling his motion for judgment on the verdict because the evidence establishes as a matter of law that Marathon breached a third-party beneficiary contract entered on Woodard’s behalf. Appellant particularly points to the jury’s answers to special issues 1, 3 and 10 to establish appellee’s breach. No other issues relative to a breach of third-party beneficiary contract theory were submitted to the jury. During the course of the trial appellant introduced the contract between Marathon and Kirk-Mayer, for the court’s use only, so that it might construe its provisions. As a consequence, appellant argues in his brief that his right to enforce the contract was established as a matter of law.

We agree with appellant that the jury’s answers to special issues 1, 3 and 10 embrace appellee’s breach of contract theory by showing a breach, causation and damages. See Bildon Farms, Inc. v. Ward County Water Imp. Dist. No. 2, 415 S.W.2d 890, 894 (Tex.Sup.1967); see also Howell v. Kelly, 534 S.W.2d 737, 740 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); LaBlanc, Inc. v. Gulf Bitulithic Company, 412 S.W.2d 86, 94 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.). We do not agree, though, that other required elements of appellant’s action were established as a matter of law.

In that regard, in order for Woodard to recover on his third-party beneficiary contract theory he also had to prove, first, the existence of a contract to provide a “cherry-picker” crane and other lifting devices for the employees of Kirk-Mayer. Howell v. Kelly, supra, Casey v. Watts, 130 S.W.2d 396, 398 (Tex.Civ.App.—Waco 1939, writ dism’d jdgmt. cor.). Second, he had to prove that the contract was made expressly and primarily for the benefit of Kirk-Mayer employees. House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179 (1895); Banker v. Breaux, 133 Tex. 183, 128 S.W.2d 23 (Tex.Comm’n App.1939, opinion, adopted) and Casey v. Watts, supra. And finally, he had to prove that Kirk-Mayer had either performed its obligation under the contract, or was ready, willing and able to do so. See Howell v. Kelly, supra, Bartex, Inc. v. Austin Paving Company, 502 S.W.2d 569, 570 (Tex.Civ.App.—Austin 1973, writ dism’d); Ryan v. Thurmond, 481 S.W.2d 199, 204 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

About the existence of a contract to provide a “cherry-picker” crane and other lifting devices, Woodard contends in his brief that Marathon “admitted that under the contract it was responsible for providing lifting devices to the employees of Kirk-Mayer.” Admissions under Rule 169, T.R. C.P., should be construed in the same manner as judicial admissions. Thornell v. Equitable Life Assurance Soc. of U.S., 385 S.W.2d 716 (Tex.Civ.App.—Texarkana 1964, no writ). See Esteve Cotton Co. v. Hancock, 539 S.W.2d 145 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). For a statement to constitute a judicial admission of a disputed issue, however, it must be clear, deliberate and unequivocal. Hedge v. Bryan, 425 S.W.2d 866, 868 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.).

The admission to which Woodard refers states:

“11. Admit that Marathon LeTourneau was responsible for providing lifting devices such as cranes to the slab for the use of the employees of Kirk-Mayer for the performance of the work contemplated by the contract between Marathon Le-Tourneau Company and Kirk-Mayer dated August 14, 1972.”
Answer: True”

While appellee did, indeed, admit that it was “responsible” for providing lifting devices, it did not clearly admit to the execution of a contract creating the responsibility. Appellant also implies that the contract dated August 14,1972, provided for a “cherry-picker” crane and other lifting devices. We find no such expression in the contract. After carefully reviewing the record we find no evidence of the execution of a contract between Kirk-Mayer and Marathon which required Marathon to provide certain lifting devices to Kirk-Mayer employees.

About whether a contract was made expressly and primarily for the benefit of Kirk-Mayer employees, we begin with the general rule:

“[T]he intention of the contracting parties is of controlling significance to a determination that a third party may enforce [a] contract provision. In deriving intent, we must begin with the presumption that parties contract for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the contracting parties.”

Corpus Christi Bank and Trust v. Smith, 525 S.W.2d 501, 503-4 (Tex.Sup.1975). Not only is there no contract here which provides for lifting devices, but the contract which we have in the record presents no indication that it was entered primarily for the benefit of Kirk-Mayer employees.

About the third requirement that appellant show that Kirk-Mayer had either performed its obligation under the purported contract or was ready, willing and able, there is no evidence. Appellant’s first point is overruled.

Appellant’s points 2, 3, 8 and 9 contend that there was no evidence to support the submission of contributory negligence issues numbered 6 and 7 (about lifting the steel without help) and that the jury’s answers to these issues were supported by insufficient evidence. We disagree.

In considering a no evidence point this Court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). When considering an insufficiency of the evidence point we consider all the evidence in the record and remand if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

About whether appellant was negligent in attempting to move the steel by himself, he testified that if he ever needed help moving something, he would get someone to give him a hand. He further testified that the steel he picked up weighed from 300 to 600 pounds. We find this evidence sufficient to justify submission of special issues 6 and 7. As for the insufficiency of the evidence point, we find after reviewing the entire record that the jury’s answers to the issues were supported by sufficient evidence. The fact that appellant testified it was customary for him to dispose of steel in this manner does not establish that he was not guilty of contributory negligence as a matter of law. 65A C.J.S. Negligence § 121b (1966).

Appellant also contends that his statement on the stand that “I guess if it had weighed 20 pounds I would have still fell the same way” compels the Court to hold that Woodard’s picking up the steel was not a proximate cause of the injury. The jury, however, need not believe an interested party’s testimony. Broesche v. Bullock, 427 S.W.2d 89, 95 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). Moreover, his statement was, at best, conjecture and is not binding upon the jury or this Court. Appellant’s points 2, 3, 8 and 9 are overruled.

Appellant’s points 4 through 7 contend there was no evidence to support the submission of contributory negligence issues numbered 8 and 9 (about lifting the steel before removing hoses and lines), particularly because there was no evidence that appellant had a duty to remove the hoses in that it was not shown that he had a right to remove them. Points 10 and 11 contend there was insufficient evidence to support the jury’s answers to special issues 8 and 9.

Concerning the appellant’s no evidence and insufficient evidence contentions we find there was ample evidence to show appellant’s duty to remove the hoses. The evidence is undisputed that Woodard knew the hoses were strewn about his work area and that it was dangerous to step on them. Woodard then must have also appreciated the danger in single-handedly lifting a 300 to 600 pound piece of steel while surrounded by these various hoses. One may not proceed blindly and in disregard of dangers that might reasonably be anticipated to exist. Carter v. Harrison, 447 S.W.2d 704, 708 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.). Woodard had a duty to exercise that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances to avoid injury. See Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.Sup.1963); see also 65A C.J.S. Negligence § 121 (1966). We think that under these circumstances his duty of care included the removing of the hoses from the area upon which he expected to move. We also find the evidence sufficient to show that his failure to remove the hoses was negligence and a proximate cause of his injury. We disagree that there is no evidence that Woodard had a right to remove the hoses. The evidence clearly shows that Kirk-Mayer employees had the right to move hoses from time to time. Appellant’s points 4 through 7, 10 and 11 are overruled.

Appellant’s points 12 through 19 submit that special issues 6 and 8 are phases and shades of special issue 4, and that special issues 7 and 9 and phases and shades of special issue 5. The gist of appellant’s argument is that the issue concerning “lookout for his own safety”, i. e., special issue 4, encompassed all other issues dealing with specific acts of negligence of appellant in this situation and that, accordingly, the jury’s exonerating appellant of a failure to keep a “lookout for his own safety” precludes any jury findings on negligence in lifting the steel without help and in failing to move the hoses. More specifically, appellant contends that since there is no specific definition of “lookout for his own safety”, and since it is analogous to the “proper control” issue discussed in Barclay v. C. C. Pitts Sand and Gravel Company, 387 S.W.2d 644 (Tex.Sup.1965), the “lookout” issue embraces any and every act or omission on Woodard’s part which affected his safety. We disagree.

We are unable to find any case which specifically defines the phrase “lookout for his own safety.” But “proper lookout” was defined for the jury in this case and is generally defined as “that type of lookout which an ordinarily prudent person would have maintained under the same or similar circumstances.” Lane v. Dallas Transit Company, 331 S.W.2d 821 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.); Frank v. Walton, 326 S.W.2d 295 (Tex.Civ.App.—Texarkana 1959, writ ref’d n. r. e.). Another phrase which imparts a similar connotation is that an adult must exercise “care for his own safety.” See e. g. Tidy Didy Wash v. Barnett, 246 S.W.2d 303 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.); Kirby Lumber Corporation v. Murphy, 271 S.W.2d 672 (Tex.Civ.App.—Beaumont 1954, no writ); 40 Tex.Jur.2d rev. Part 2 Negligence § 86 (1976). It is generally agreed that the duty to care for one’s own safety includes the duty to keep a proper lookout. Tidy Didy Wash v. Barnett, supra, Locke v. J. H. Marks Trucking Company, 318 S.W.2d 1 (Tex.Civ.App.—El Paso 1958, no writ), 40 Tex.Jur.2d rev. Part 2 Negligence § 86 (1976). Often, the phrases “proper lookout” and “care for one’s own safety” are combined and termed “proper lookout for one’s safety.” See e. g. DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98 (1955). Often, both “proper lookout” and “lookout for one’s own safety” are used as synonymous terms. DeWinne v. Allen, supra; Rosales v. Lara, 519 S.W.2d 245 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Jameson v. Melton, 366 S.W.2d 115 (Tex.Civ.App.—Dallas 1963, no writ). And we find no material distinction between the two phrases.

Did, then, the jury’s answer exonerating Woodard of failure to keep a lookout for his own safety exonerate him of all specific acts of negligence raised by the evidence and submitted to the jury? We think not.

The evidence shows that Woodard evaluated the situation before him and knew and fully understood that the piece of steel he was lifting weighed from 300 to 600 pounds, and that often he would call for assistance in lifting such a heavy piece of steel. As far as the hoses were concerned, the testimony is clear that Woodard had seen most of the hoses on the ground earlier in the day. The evidence also shows that he walked on many of these hoses prior to his injury. Immediately prior to the accident one of the other employees brought additional hoses into Woodard’s area. Woodard knew of these hoses and the danger they posed. We think the evidence is clear, then, that Woodard kept a proper lookout, i. e., he knew of the existence of numerous hoses in his area and he fully appreciated the danger which they posed. Yet, he lifted the steel and attempted to dispose of it in the face of this danger. Consequently, we think his subsequent actions of negligence were independent of his keeping a proper lookout.

A similar issue was raised in Christian v. Martin & Company, 384 S.W.2d 202 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.). There, the plaintiff sued for injuries suffered when he was struck by some pipe that dislodged when pipe was unloaded from one truck and stacked on a lowboy trailer pulled along side the truck being unloaded. The jury answered special issues in relevant part as follows: 1) the defendant was negligent in carelessly stacking the pipe and this was a proximate cause of the accident;. 2) plaintiff was negligent in walking between the trucks and this was a proximate cause of the accident; 3) plaintiff did not fail to keep a proper lookout; 4) plaintiff was not negligent in failing to move his truck prior to the accident; 5) plaintiff did not fail to advise appellee’s employees of his intention to walk between the trucks. The plaintiff was denied recovery based upon contributory negligence. On appeal he contended the court should have disregarded the jury’s answer to the “walking between the trucks issue” because it was included in the issues 3, 4 and 5. The court overruled his contentions stating that the specific findings (3, 4 and 5 above) related to alleged negligent action on the part of the plaintiff entirely separate and apart from any negligence in walking between the trucks. The court laid special emphasis on the fact that plaintiff admittedly appreciated the danger associated with walking between the trucks, yet did it anyway. See also Whitfill v. Hunt, 387 S.W.2d 653 (Tex.Sup.1965). In Whitfill, the plaintiff did not fail to keep a proper lookout but failed to apply his brakes; the brakes issue was held to be a separate and independent issue. In Broesche v. Bullock, supra, proper lookout was held not to include the issue of a separate act of negligence. Appellant’s points 12 through 19 are overruled.

In that we have overruled all of appellant’s points it is unnecessary for us to consider appellee’s cross points. The judgment of the trial court is therefore affirmed.

      . Marathon did specify in the August 14th contract that it would provide hardhats, safety glasses and all toolroom equipment as necessary, but no mention was made of any lifting devices. The contract also stated that it was the entire agreement of the parties and no oral statements could alter the terms of the agreement.


text:
    Celine COZAD, Appellant, v. Frank ROMAN et al., Appellees.
    No. 1270.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      Preston E. Henrichson, Henrichson-Smith, P.C., Edinburg, for appellant.
    James DeAnda, Rafael Flores, Flores, Sanchez, DeAnda & Vidaurri, McAllen, Thomas W. Wilkins, Wilkins & Phillips, McAllen, for appellees.
   OPINION

YOUNG, Justice.

Celine Cozad, daughter of Monica Z. Ramsower, sued Frank Roman, McCook Cattle Company and Mrs. Ramsower complaining that her mother had been unduly influenced by Roman and McCook into selling, or entering into a contract of sale of, a certain parcel of land for an inadequate and unconscionable amount. Cozad sought to rescind or cancel the purported sales contract or deed. Defendants answered with pleas in abatement and a special exception challenging plaintiff’s standing to bring the suit. In a hearing held before the court without a jury, the trial court, by an order signed on June 1, 1977, sustained the defendants’ pleas and special exception and dismissed the plaintiff’s suit. Plaintiff Co-zad appeals. We reverse and remand.

In her original petition, filed March 8, 1977, Cozad alleges, among other things, that she is bringing the suit individually; that she is the daughter of Mrs. Ramsower; that she now has and always has had “the utmost love and affection for the mother”; that she brings this suit for the protection of her mother from the undue influence of the other defendants and other persons; that she, the plaintiff, and her mother are joint-tenants of 9,290.5 acres of land in Hi-dalgo County, Texas, in that she owns an undivided ¼ interest thereof and her mother owns an undivided ½ interest thereof; that she believes that her mother has entered into a contract of sale with McCook, and perhaps a deed, covering all or a portion of the mother’s undivided interest in the land; that the defendants Roman and McCook by undue influence have caused her mother to sell or contract to sell her interest in the land for an inadequate price and under unconscionable terms.

Cozad further alleges that she would be one of the material recipients of her mother’s bounty, but Roman and others by undue influence have estranged Cozad from her mother; that because of the estrangement she is entitled to damages from Roman. For all of the above reasons she says that the court should void and set aside the contract and/or deed regarding the subject property and should award her damages against Roman.

The gist of appellees’ pleas in abatement and special exception is that appellant has no standing or justiciable interest to maintain this suit.

A hearing was had on the pleas in abatement and s'pecial exception on June 1, 1977. On this same day appellant filed an application for the guardianship of her mother in the county court at law. At the outset of the hearing, the appellant requested that she be given leave to amend her pleadings. No immediate response was given by the trial court to the request. But the court proceeded with the hearing during which it stated that it would treat the pleas in abatement as special exceptions. No evidence was introduced and the court sustained the pleas and the exception and dismissed appellant’s case without prejudice to her right to refile the suit should she be appointed to represent Mrs. Ramsower in any representative capacity.

Cozad brings six points of error. We will first consider point 5 which sets out several reasons why the trial court erred in considering and granting the defendants’ unverified pleas that the plaintiff lacked legal capacity to sue.

In Hous. Authority, etc. v. State ex rel. Velasquez, 539 S.W.2d 911, 913 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.), we stated at page 913:

“It is a fundamental rule of law that without a breach of a legal right belonging to the plaintiff, no cause of action arises or can accrue to his benefit. .
For a person to maintain a court action, he must show that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. .
The issue of standing to sue has been the subject of much discussion. As a general rule, ... a person has standing to sue, if: 1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; 2) he has a direct relationship between the alleged injury and claim sought to be adjudicated: 3) he has a personal stake in the controversy; 4) the challenged action has caused the plaintiff some injury in fact, either economic, ethic, recreational, environmental, or otherwise; or 5) he is an appropriate party to assert the public’s interest in the matter, as well as his own interest . . ”

Moreover, in Glass v. Carpenter, 330 S.W.2d 530 (Tex.Civ.App.—San Antonio, 1959, writ ref’d n. r. e.), the Court there stated at page 536:

“to be entitled to maintain a suit for the rescission or cancellation of a contract one must have some interest therein. As a general rule, a party to a contract or a privy therein, and he alone, is entitled to maintain a suit to cancel or rescind it.”

Cozad’s petition plainly fails to allege any privity or interest in the contract she seeks to rescind. Neither does the petition allege that appellant has any interest in that portion of the land being sold. At most, appellant to show standing infers an expectation of future inheritance. This is not enough to create a justiciable interest. See Hollar v. Jowers, 310 S.W.2d 721, 724 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.); Jones v. Eastham, 36 S.W.2d 538 (Tex.Civ.App.—Galveston 1931, writ ref’d). Thus, we think appellant has failed to show the necessary justiciable interest to maintain this action.

On the other hand, appellant asserts five reasons why standing is shown in this case. She first asserts that she has standing because she is in essence suing as next friend of her mother. We find no such allegation of next friend status in appellant’s petition. The petition expressly states that it is being brought by appellant individually and it nowhere else asserts any type of representative capacity.

Secondly, appellant asserts standing is conferred because a future event may happen; i. e., appellant might be appointed guardian of her mother. This argument is answered by the Commission of Appeals in Town of Refugio v. Strauch, 29 S.W.2d 1041 (Tex.Com.App.1930, jdgt. adopted) wherein the Court there said at page 1044:

“. . . Courts do not decide cases on what may happen in the future, but upon present conditions, as demonstrated by the facts in a particular case. . . .”

This Court, in Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.), reasoned to the same effect.

Thirdly, appellant contends she has standing as a joint-tenant of the realty involved in the subject contract of sale. Appellant cites Reina v. Erassarret, 90 Cal.App.2d 418, 203 P.2d 72 (1949), and Gillette v. Nicolls, 121 Cal.App.2d 185, 262 P.2d 856 (1953), for the proposition that a joint-tenant has standing to challenge a sale by his co-tenant when the sale is induced by fraud or undue influence. While these cases are similar in some respects to the instant case, they are also distinguishable in that the grantor-joint-tenant in those cases was deceased at the time of the action. Thus, the joint-tenant enjoyed the possibility of recovering the deceased co-tenant’s interest as a survivor of the joint-tenancy. No such interest has been shown in this case. Indeed, even if the daughter were able to cancel the transaction, she would receive nothing. Even if we assume that the mother is presently incompetent, there is no presumption that she will continue to be so until she dies. Jones v. Eastham, supra. Thus, there would be nothing to prevent the mother from transferring the subject property to another party at a later time.

Fourthly, appellant argues that she has standing as a result of her kinship to her mother and resulting moral obligations. In Williams v. White, 263 S.W.2d 666 (Tex.Civ.App.—Austin 1953, writ ref’d n. r. e.), the Court found that a father did not have standing to challenge the marriage contract between his 16-year old daughter and 17-year old male. We also find that appellant’s mere kinship to Cozad does not confer standing. See also Jones v. Eastham, supra. Though appellant may feel a moral obligation to support her mother, we have found no cases which confer standing as a result of a moral obligation of support to a parent and do not think it provides a sound basis for standing. See Hous. Authority, etc. v. State ex rel. Velasquez, supra.

Finally, appellant contends that the pleas in abatement filed herein were not verified and thus had no force or effect. The defendants’ pleas questioned whether plaintiff had shown standing or a justicia-ble interest in the controversy, or in other words whether appellant pled a cause of action. See Clark v. State, 324 S.W.2d 75, 79 (Tex.Civ.App.—San Antonio 1959), aff'd, 161 Tex. 10, 336 S.W.2d 612 (1960); Ortiz Oil Co. v. Railroad Commission, 62 S.W.2d 376, 381 (Tex.Civ.App.—Texarkana 1933, no writ); 2 McDonald, Texas Civil Practice § 6.12 n.5 (1970). Appellees’ did not allege a lack of capacity pursuant to Rule 93, T.R.C.P. and thus the pleading rules as to capacity do not apply. 2 McDonald, Texas Civil Practice § 7.12 n.8 (1970). Appellant’s point 5 is overruled.

Appellant’s points 1 and 2 allege that the trial court erred in failing to appoint a guardian ad litem for her mother and in failing to require a hearing to resolve whether or not appellant’s mother was competent to contest appellant’s next friend status and standing. As has been shown, a party must show that he has a justiciable interest before he may maintain an action. Hous. Authority, etc. v. State ex rel. Valasquez, supra. Appellant’s pleadings failed to show a justiciable interest and thus without allegation of a cause of action before it the court did not need to proceed further. Appellant’s points 1 and 2 are overruled.

Appellant’s point 3 maintains that the court erred in failing to give appellant an opportunity to amend. We agree with this contention. Appellees’ pleas which asserted that appellant lacked a justi-ciable interest were styled “Plea in Abatement”. These so-called pleas in abatement, however, were actually in the nature of special exceptions. Clark v. State, supra. During the hearing of this matter the trial court also stated that it would treat the pleas in abatement as special exceptions.

When special exceptions have been sustained, a party must be given a right to amend before the case may be dismissed. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.Sup.1974); International Bro. of El.W. v. Southwestern Bell T.Co., 498 S.W.2d 504 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). At the beginning of the hearing in the case before us the appellant requested the court’s permission to amend her pleadings. The court did not immediately deny the request, but later in the same hearing dismissed the cause based upon the pleas in abatement and special exceptions. We think this action was tantamount to sustaining the special exceptions. So dismissal of the cause by the trial court without granting appellant an opportunity to amend constitutes reversible error. See Internat’l Bro. of El.W. v. Southwestern Bell T.Co., supra and Graef v. City of Galveston, 538 S.W.2d 816 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). Appellant’s point 3 is sustained. Accordingly, we need not consider appellant’s points 4 and 6.

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


text:
    Trinidad L. GARCIA, Appellant, v. Dale PRESCOTT et ux., Appellees.
    No. 1262.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      William H. Berry, Jr., Corpus Christi, for appellant.
    H. T. Hermansen, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from a take nothing judgment in a personal injury case arising out of an automobile collision west of Corpus Christi, Texas, on Interstate Highway 37.

On the evening of December 14, 1974, defendant Betty F. Prescott, appellee herein, struck the rear-end of a car owned by and operated by plaintiff, Mrs. Trinidad L. Garcia, appellant herein, while the two cars were headed in the same direction in the inside lane of the two southbound lanes of the four lane interstate highway. Mrs. Garcia sued for personal injuries and damages to her car.

Trial was to a jury. In answer to special issues, the jury refused to find appellee, Prescott guilty of any negligence (a) in her speed, (b) in the application of her brakes, (c) in her lookout, or (d) in her failure to turn to the right before the occurrence in question. Those were the only inquiries about Prescott’s conduct. The jury did find that appellant, Garcia, was guilty of contributory negligence proximately causing the accident (a) in driving at such a slow speed as to impede the normal and reasonable movement of traffic and (b) in driving in the left-hand lane. The jury did not answer the comparative negligence issue because it was conditioned upon at least one affirmative answer to one of the four primary negligence issues. Based on the verdict the trial court entered a take nothing judgment from which Garcia appeals. We affirm.

Appellant brings 29 points of error, some of which assert that there is no evidence and insufficient evidence to support either the submission of certain instructions to the jury or the jury’s answers to the contributory negligence issues. Furthermore, appellant contends that the evidence establishes as a matter of law that appellee, Prescott, was negligent during the occurrence herein or that the jury’s answers to such questions were against the great weight and preponderance of the evidence. In passing on the legal insufficiency points; i. e., “no evidence” and “established as a matter of law” points, we may consider only that evidence, if any, which viewed in its most favorable light, supports the jury findings and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957); Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803, 813 (Tex.Civ.App.—Corpus Christi 1974, no writ). In passing on the factual insufficiency points; i. e., “insufficient evidence” points and “against the great weight and preponderance of the evidence” points we must examine the whole record to determine whether the evidence supports the jury findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Baucum v. Statewide Hot Shot, 550 S.W.2d 156 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

Appellant’s points 1 through 12, 25 and 26 submit there was no evidence and insufficient evidence to support the submission of instructions VI and VII to the jury, and to support the jury’s answers to the contributory negligence issues concerning slow speed and driving in the left-hand lane. Appellant also contends there was no evidence to support the submission of the contributory negligence issues and the comparative negligence issue.

The challenged instructions state:

“VI.
You are instructed that the Texas Legislature has established a uniform standard of safe conduct in Article 6701d, Section 170(a), which provides as follows:
‘No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.’
You are further instructed that Trinidad L. Garcia, as well as the whole public, was charged in law with knowledge of this safety provision.
VII.
You are instructed that the Texas Legislature has established a uniform standard of safe conduct in Article 6701d, Section 52(b) as follows:
‘Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.’
You are further instructed that Trinidad L. Garcia, as well as the whole public, was charged in law with knowledge of this safety provision.”

Although the appellant has assigned error to the submission of the challenged instructions based upon both the legal and factual insufficiency of the evidence, the correct rule for submission in that regard depends upon only the legal sufficiency of the evidence. In other words, an instruction is proper if it has support of any evidence of probative value. Mejia v. Liberty Mut. Ins. Co., 544 S.W.2d 690 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ); Rule 277, T.R.C.P.

The record, which includes a statement of facts and fifteen photographs taken at the scene of the accident shortly after the occurrence indicates that about 9:15 p. m. on December 14, 1974, appellant, Garcia, along with her friend, Mrs. Pena, and her sister-in-law, Mrs. Lara, were driving home to Corpus Christi, Texas, from Edroy, Texas via Interstate Highway 37. Mrs. Pena rode in the front seat with appellant and Mrs. Lara rode in the back seat. There were occasional patches of fog that evening, but the roads were dry and generally unobstructed except for a bridge and a gradual left-hand bend in the road prior to the scene of the accident. The speed limit was 55 m. p. h. at all places applicable to this action.

Garcia was travelling on the southbound half of the highway in the right-hand lane when she observed a car on the right-hand shoulder of the road with its left taillight blinking, preparing to enter the travelled portion of the highway. In order to avoid this hazard, Garcia moved over into the left land and continued driving in this lane approximately one minute. Then, according to Garcia, a large truck passed “very fast” on her right. At that same moment Garcia heard a loud noise, realized she had been hit from the rear and stopped her ear in the left lane where she had been travelling. Garcia admitted that she did not know how fast her car was moving at the time of the accident but guessed that it was going 50 m. p. h. There was no testimony that Garcia slammed on her brakes prior to the accident and she didn’t know if she applied her brakes after the accident.

Appellee, Mrs. Prescott, was also travel-ling south on Interstate 37 prior to the accident. She stated that she was travel-ling between 50 and 55 m. p. h. and occasionally slowed down for patches of fog. She testified that she was passing other vehicles from time to time prior to the accident, and was driving with her lights on low beam. Immediately prior to the accident she was travelling in the left lane of southbound traffic and passed a car occupied by two of the testifying witnesses, Dolores Lopez and Leticia DeAnda. After passing the Lopez automobile she observed the taillights of the Garcia automobile. Prescott stated that the Garcia automobile appeared to be “stopped or going very slowly” so she “jammed on the brake.” Her car skidded about 85 feet before it turned to the left, travelled sideways, smashed its right side into the left rear-end of the Garcia auto and then jumped over an eight inch high concrete median and stopped in the northbound lane of Interstate Highway 37.

Officer Wauson, who investigated the accident, stated that he arrived at the scene about 10 minutes after it happened. He identified the photographs in evidence and explained that point of impact of the automobiles was marked by a gouged out area in the asphalt in the center of the left lane. Based upon the fact that the Garcia auto came to a stop only nine feet eight inches from the point of impact and upon his investigative experience he estimated that:

“The vehicle [Garcia] couldn’t have been travelling any faster than ten or twenty miles an hour.”

The other testifying witnesses, Lopez and DeAnda, testified that a short while before the accident, their car was travelling about 45 to 50 m. p. h. in the left hand lane of the southbound traffic on Interstate Highway 37. At this time, Lopez turned around to see the Prescott vehicle rapidly approaching and told her son-in-law, who was driving their car, to pull over into the right lane to avoid an accident. They testified he did so just as the Prescott auto passed them doing between 60 to 70 m. p. h. DeAnda testified, though, that Prescott could have been going only 60 m. p. h. Lopez’ son-in-law then slowed down, observed the impending accident between Prescott and Garcia, heard the screeching of Prescott’s tires, saw the accident, and pulled his car onto the shoulder. At the time Lopez saw the Garcia automobile, she estimated that it was travelling 45 m. p. h. in spite of the fact that the Lopez auto was overtaking the Garcia automobile as the Lopez automobile was slowing down from 45 m. p. h.

We find that the evidence is legally sufficient to support the court’s instructions VI and VII. Mejia v. Liberty Mut. Ins. Co., supra. Further, we find that the evidence is both legally and factually sufficient to support the jury’s answers to the contributory negligence issues. It appears that the flow of traffic on Interstate Highway 37 was somewhere between 45 and 60 m. p. h. We think slowing down to 10 to 20 m. p. h. in a left-hand lane was not such a speed as a person using ordinary care would have chosen under those circumstances. Southwestern Bell Telephone Company v. Thomas, 554 S.W.2d 672 (Tex.Sup.1977). Appellant’s points 1 through 12, 25 and 26 are overruled.

Appellant’s points 13 through 24 contend that the jury’s answers to the lookout, failure to turn right, travelling at an unsafe speed, and failure to apply the brakes were against the great weight and preponderance of the evidence and were actually established as a matter of law. We disagree. We find the evidence shows that Prescott was not keeping an improper lookout on the night in question. As to failure to turn right, the evidence indicates that there were other vehicles to the right of the Prescott car which created a very real danger in the event of a right turn. Regarding the unsafe speed, it was Prescott’s testimony that she was travelling 50 to 55 m. p. h. in a 55 m. p. h. speed zone. Lopez and DeAnda testified that she was going between 60 and 70 m. p. h. But, it should be noted that the Lopez automobile was travelling only 45 to 50 m. p. h. and that DeAnda admitted that Prescott might have been only travelling 60 m. p. h.

Finally, concerning failure to apply the brakes, there is evidence in the record which shows that Prescott used her brakes as soon as she saw the Garcia vehicle and did everything she could to avoid striking the appellant. Appellant’s points 13 through 24 are overruled.

Appellant’s points 27, 28, and 29 urge there was no evidence and insufficient evidence to support instruction V which read:

“V
An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it.”

We cannot agree.

Whether or not the theory of unavoidable accident is raised by the evidence is to be determined by viewing the evidence in a light most favorable to presenting the theory. Kuykendall v. Doose, 260 S.W.2d 435, 437 (Tex.Civ.App.—Amarillo 1953, writ ref’d n. r. e.); 7 Tex.Jur.2d Rev. Part 2, Automobiles § 496 (1975). Physical conditions which may give rise to an unavoidable accident include: Fog, snow, sleet, wet or slick pavement, or an obstruction of the road. Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.Sup.1971). Both Mrs. Prescott and Mrs. Lopez testified that there was intermittent fog along the highway that night. Officer Wauson and Mrs. DeAnda also testified that there was a left-hand curve in the road leading to the scene of the accident. In fact, Mrs. DeAnda stated that she was unable to see the Garcia automobile until they rounded the curve. See Mays v. Smith, 95 S.W.2d 1342 (Tex.Civ.App.—Beaumont 1936, writ dism’d). While there was other testimony that there was no fog at the time of the accident and that the curve in the road would not have anything to do with the accident, we think the evidence was sufficient to justify an instruction on unavoidable accident. In this connection, the right of such submission is to be viewed as of the time the issues were submitted and should not be dependent upon how the jury may have answered questions of negligence and contributory negligence. Wichita Transit Co. v. Sanders, 214 S.W.2d 810, 813 (Tex.Civ.App.—Ft. Worth 1948, no writ).

Even if we assume that there was error in submission of the instruction on unavoidable accident, the error was harmless in the absence of a finding of primary negligence on the part of the defendant. Rhodes v. Liberty Welding Works, 391 S.W.2d 796 (Tex.Civ.App.—Beaumont 1965, ref’d n. r. e.); Rule 434, T.R.C.P. Appellant’s points 27, 28 and 29 are overruled.

The judgment of the trial court is affirmed.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE CO., Appellant, v. James R. ADAMS et al., Appellees.
    No. 1318.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      William A. Abernethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellant.
    William G. Burnett, Burnett & Burnett, Sinton, for appellees.
   OPINION

BISSETT, Justice.

This is a suit for declaratory judgment. Suit was brought by James R. Adams and Donald G. Adams, hereinafter called “plaintiffs”, against Southern Farm Bureau Casualty Insurance Company, hereinafter called “defendant”, to determine whether or not defendant, under an existing insurance policy, had the duty to defend plaintiffs in an action brought against them by a third person. Both parties filed motions for summary judgment. Plaintiffs’ motion was granted and defendant’s motion was denied. Judgment was rendered which decreed that defendant was required to defend plaintiffs in the suit brought against them. Defendant has appealed.

Defendant issued a “Farmer’s Comprehensive Personal Insurance” policy to plaintiffs on February 17, 1974, wherein it contracted to pay on behalf of plaintiffs all sums which plaintiffs shall become legally obligated to pay as damages because of bodily injury caused by an occurrence during the policy period, and further contracted with plaintiffs to defend any suit against them by a third person where a recovery is sought against them because of bodily injury allegedly sustained by such a person.

The policy had numerous exclusions from coverage, including among others:

“This coverage does not apply:
* * * * * *
(c) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any aircraft;
* * * * * *
(n) to property damage arising out of any substance released or discharged from any aircraft . . . ”

On March 26,1976, Michael Hedke filed a suit in San Patricio County, Texas. It was docketed as Cause No. 18077 and was styled “MILTON HEDKE VS. GREENWAY AVIATION CO., ET AL.” Greenway Aviation Company and the plaintiffs in this suit were named as defendants in the Hedke suit. Hedke alleged that the defendants in that suit were negligent in the use and distribution of chemical spray, which proximately caused him to suffer bodily injuries and medical expenses in an amount in excess of $10,000.00. With respect to the allegations in Hedke’s petition which bear on the disposition of this appeal, it was alleged:

“II.
The Plaintiff shows that on or about the 19th day of July, 1974, he was engaged in performing work as a gauger for his employer and was on a public road a few miles east of Mathis in route to one of the wells that he was employed to gauge and operate when an airplane, so Plaintiff is informed and believes, piloted by Buster Boyd and owned by Greenway Aviation Company, doing work on behalf of Adams Brothers, sprayed his pickup truck and covered the Plaintiff with the wet spray which Plaintiff is informed and believes was a methyl parathion mixture intended to be used on the cotton crops of the Adams Brothers’ farming operations. That the immediate effect of the spray was to cause immediate tearing of the eyes, difficulty in breathing and swelling. Since being heavily sprayed with the chemical, the Plaintiff has been under the constant care of a doctor, has been on medication, has had continuous sense of nervousness and a sense of anxiety and unrest and it now appears that he has suffered permanent damage to his body, nerves and tissues, by reason of this heavy dosage of chemical spray.”

Plaintiffs, upon service of citation in the Hedke suit upon them, requested defendant to defend them against the claim for damages sought by Hedke. Defendant refused to do so on the ground that the policy excluded coverage under the facts alleged by Hedke in his petition. Plaintiffs then filed this lawsuit.

Defendant attacks the judgment of the court below in three points of error. It is contended in the first and second points that the trial court erred in rendering summary judgment for plaintiffs because, as a matter of law: 1) the allegations contained in Hedke’s petition in Cause No. 18077 do not show that defendant has a duty to defend plaintiffs in that action; 2) coverage is expressly excluded in the policy for the cause of action instituted by Hedke against plaintiffs. In the third point, it is asserted that the trial court erred in failing to render summary judgment in favor of it (defendant) because the Hedke petition in Cause No. 18077 fails to fall within the coverage provided by the insurance policy in question.

The sole question to be determined in this appeal is one of law, being the construction of the phrase “arising out of the . use . of . any aircraft.” It is the defendant’s position that such phrase, properly construed, means that the exclusion can be invoked without the plaintiffs personally using any aircraft; and that plaintiffs, by having Greenway Aviation Company spray their crops with an aircraft, used such aircraft within the meaning of the word “use” as contained in the exclusionary clause. It is plaintiffs’ position that such phrase, properly construed, means that the exclusion becomes operative only where they (plaintiffs) personally owned, maintained, operated, used, loaded or unloaded an aircraft which resulted in bodily injury to a third person; and that where they did not personally own, maintain, operate, use, load or unload the aircraft, although bodily injury may have occurred out of the use of the aircraft, the exclusion does not apply.

It is stipulated that at the time of Hedke’s alleged injuries, plaintiffs were insured by a policy which was duly issued by defendant. Other summary judgment evidence, consisting of admissions, deposition and affidavits, established conclusively: the premium for the policy year February 17, 1974 to February 17, 1975 had been paid; the policy was in force on July 19, 1974, when Hedke alleged that he sustained bodily injury as a result of the chemical spraying of plaintiffs’ crops by Greenway Aviation Co.; timely notice of Hedke’s suit was given by plaintiffs to defendant; applicable policy limits had not been exceeded by payments by defendant on March 26, 1976, when Hedke filed his suit; and Greenway Aviation Co., the owner of the airplane that sprayed Hedke, was an independent contractor who had contracted with plaintiffs for the spraying of their crops.

When terms of an insurance policy are unambiguous, they are to be given their plain, ordinary and generally accepted meaning, unless the policy itself shows that the terms have been used in a different sense. Gallup v. St. Paul Insurance Company, 515 S.W.2d 249 (Tex.Sup.1974); Southern Life and Health Ins. Co. v. Simon, 416 S.W.2d 793 (Tex.Sup.1967). Generally speaking, all parts of an insurance policy are to be taken together, and the meaning of the terms used therein will be given as will carry out and effectuate to the fullest extent the intention of the parties, since each word in the particular phrase in question is intended to have a meaning in and of itself. Royal Indemnity Company v. Marshall, 388 S.W.2d 176 (Tex.Sup.1965).

The word “use” has been construed to mean “to put or bring into action or service; to employ for or apply to a given purpose; to avail oneself of”. Beggs v. Texas Department of Mental Health and Mental Retardation, 496 S.W.2d 252 (Tex.Civ.App.—San Antonio 1973, writ ref’d); Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). The word “use” was not defined in the policy upon which plaintiffs sue.

It is a well settled rule of law in this State that insurance policies will be interpreted and construed favorably in favor of the insured and strictly against the insurer, especially so when dealing with exclusions, exceptions and limitations. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951). It is equally well settled that when the language of an insurance policy is susceptible of more than one reasonable construction, the courts will apply the construction which favors the insured in order to permit a recovery under the policy. Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953); Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605 (1950). Further, since the purpose of an insurance contract is to indemnify against loss the contract (policy) should be construed in such a way as to effectuate that purpose, rather than in a way which will defeat it; therefore, the courts favor a strict construction of the policy against the company writing the policy, and particularly of provisions that tend to defeat coverage, such as exclusionary clauses. National Emblem Insurance Company v. McClendon, 481 S.W.2d 186 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.); Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.); Travelers Indemnity Company v. Storecraft, Inc., 491 S.W.2d 745 (Tex.Civ.App.—Corpus Christi 1973, no writ).

In Ramsay v. Maryland American General Insurance Company, 533 S.W.2d 344 (Tex.Sup.1976), the question to be resolved was whether the term “commercial automobile” as used in an exclusionary clause of an insurance policy, excluded recovery for the death of the insured where death resulted while the insured, a civil service employee, was operating a Navy-owned pickup truck. Our Supreme Court held that it did not, and permitted a recovery under the policy. The plaintiff in that ease, who was the insured’s widow, contended that the term was so ambiguous that she should recover under the rule of law which resolves such ambiguities in favor of the insured. The Supreme Court agreed, and, on page 349, held:

“We have concluded that both parties have offered reasonable, although conflicting, interpretations of the meaning of ‘commercial automobile’ as applied to the facts and circumstances of this case. The term is not ambiguous when applied to a truck or automobile in actual use by a private individual or company for profit, but uncertainty and ambiguity arise when the term is applied to a Navy-owned truck used exclusively for nonprofit activities of the United States Government. . . . ”

Since the policy here involved is a policy of “Farmer’s Comprehensive Personal Insurance”, it is reasonable to conclude that it was purchased and sold to afford comprehensive insurance coverage against liability of the insureds in their farming business, and that the exclusion was inserted in the policy to exclude from coverage liability arising out of personal use by them of aircraft, since the policy was designated to afford coverage for liability arising out of farming operations as opposed to liability arising from personal pursuits of the insureds. This view is supported by the decision in Heyward v. Republic Nab Life Ins. Co., 527 S.W.2d 807 (Tex.Civ.App.—San Antonio 1975), affirmed in 536 S.W.2d 549 (Tex.Sup.1976). There, Heyward had a policy of accidental death insurance which had an exclusion that provided that benefits would

“. . . not be payable for any loss to which a contributing cause is
. (e) participation in or as the result of the commission of a felonious act . . . ”

Heyward was murdered, the company denied coverage, and Heyward’s widow sued. The insurance company contended that since Heyward was intentionally killed by another that he died as the result of a felonious act and the exclusion barred recovery. The Court of Civil Appeals held at 527 S.W.2d 812:

“. . . We do not agree. That the slayer is participating in or committing a felonious act is not enough; in order for such exclusion to be applicable, the insured must be participating in or committing a felonious act . . . ”

The Supreme Court agreed.

The rule of Heyward, that exclusions should be construed to speak to acts of an insured, and not to acts of third parties, would dictate that the exclusion in the policy in question in this appeal should be construed to mean that plaintiffs (or their employees) must have personally used the airplane in question in order for the exclusion to exempt defendant from liability to defend plaintiffs in the Hedke suit.

Moreover, if exclusion (c) is construed as contended, that is, that bodily injury or property damage arising out of the use of an aircraft is excluded from coverage regardless of whether an insured or third party is personally using the aircraft, then exclusion (n) is rendered meaningless, for everything intended to be excluded by exclusion (n) would have been already excluded by exclusion (c). This, of course, is an impermissible interpretation. See Liberty Mutual Insurance Company v. American Employers Insurance Company, 556 S.W.2d 242 (Tex.Sup.1977). However, the construction contended for by plaintiffs (the insureds) reconciles these two exclusions — exclusion (n) means that there is no coverage for property damage arising from aerial spraying, but exclusion (c) means there is coverage for bodily injury arising from aerial spraying at least when performed, as here, by an independent contractor.

A result similar to that contended for by plaintiffs is reached by employing the familiar rule of construction that the specific controls the general. Exclusion (c) is general; exclusion (n) is specific as regards aerial spraying. Applying exclusion (n) to aerial spraying, to which it is obviously intended, we arrive at a construction that bodily injury from aerial spraying is covered and property damage from aerial spraying is excluded from coverage by the policy.

Plaintiffs, in their trial petition, alleged that exclusion (c) was ambiguous. We see no difference in the Ramsay case, where the Supreme Court held that the term “commercial automobile” was ambiguous “when the term is applied to a Navy-owned truck”, and this case, when the term “use” is applied to an aircraft that is owned and operated by an independent contractor and is engaged in aerial spraying of the insureds’ crop.

As stated by the Supreme Court in Ramsay, under the aforesaid well settled rules of law, we are compelled to affirm the trial court’s judgment in favor of plaintiffs, the insureds. All of defendant’s points have been carefully considered and they are overruled.

The judgment of the trial court is AFFIRMED.