author: BREWSTER, Justice.

text:
    CONTINENTAL HOMES COMPANY et al., Appellants, v. HILLTOWN PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 17685.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 24, 1975.

      Storey, Armstrong, Steger & Martin, and Francis W. Thayer, Dallas, for appellants.
    Craig Penfold, Dallas (no brief filed), for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by the defendants, Continental Homes Company, J. E. Kutscher and Harry V. Dulick, from an interlocutory ex parte order entered by the trial court appointing a temporary receiver to take over the possession and control of the business and of the real and personal property belonging to the defendants. The order was entered without notice, without a hearing, and without requiring the plaintiff, Hilltown Property Owners Association, Inc. (the applicant for such receivership) to file in the cause an applicant’s bond as is required by Rule 695a, T. R. C. P. The defendant, Continental Homes Company, was alleged to be a partnership composed of the two individual defendants.

The petition alleges that plaintiff is a corporation. It also alleges the following: that the defendants are the owners of and are in the business of selling unimproved real property in Denton County; they have sold under contract a number of lots out of a certain addition to various people who have paid defendants substantial sums of money; defendants had induced the buyers to purchase the lots by making many promises to do things such as install utilities, build a golf course, boat docks, parks, shopping centers, etc.; that these promises were made to defraud the buyers and none of them have been performed; the failure to carry out these promises resulted in a diminution in value of the lots that the various purchasers bought; that this fraud was made in disregard of plaintiff’s rights and plaintiff is entitled to recover from defendants $1,000,000.00 in damages. The receivership was sought on the theory that defendants would spend the money it was collecting from the sale of the lots and that money would not then be available to spend in carrying out the false promises defendants had made to the various purchasers in inducing them to purchase lots, and to pay the damages plaintiff had sustained.

We reverse and vacate the receivership.

The defendants’ first point of error is that the trial court erred in granting the plaintiff’s application for the appointment of a receiver because the applicant did not file, and the court did not require them to file, the applicant’s bond as is required by Rule 695a.

We sustain that point.

Rule 695a, T. R. C. P., provides: “No receiver shall be appointed with authority to take charge of property until the party applying therefor has filed with the clerk of che court a good and sufficient bond, to be approved by such clerk, payable to the defendant in the amount fixed by the court, conditioned for the payment of all damages and cost in such suit, in case it should be decided that such receiver was wrongfully appointed to take charge of such property. The amount of such bond shall be fixed at a sum sufficient to cover all such probable damages and costs. . . . ”

In this case Rule 695a was not complied with in that the trial court appointed the temporary receiver without requiring the applicant to post an applicant’s bond as is required by that rule. No applicant’s bond has ever been filed herein.

The trial court did set the amount of the receiver’s bond that is required by Art. 2296, V. A. C. S. at $1,000.00 and the receiver did file it. But the filing of the receiver’s bond by the receiver did not satisfy the requirement of Rule 695a that an applicant’s bond also be filed.

The trial court committed reversible error in appointing a receiver to take charge of defendants’ business and property without setting the amount of the applicant’s bond and without requiring the applicant to post an applicant’s bond as is required by Rule 695a, T. R. C. P. Compliance with Rule 695a in this respect is a prerequisite to the appointment of a receiver. Greenland v. Pryor, 360 S.W.2d 423 (San Antonio Tex.Civ.App., 1962, no writ hist.); Low Cost Homes Bldg. Co. v. Banks, 228 S.W.2d 535 (San Antonio Tex.Civ.App., 1950, no writ hist.); Parr v. First State Bank of San Diego, 507 S.W.2d 579 (San Antonio Tex.Civ.App., 1974, no writ hist.), and Dinwitty v. McLemore, 291 S.W.2d 448 (Dallas Tex.Civ.App., 1956, no writ hist.).

The purpose of requiring the bond, referred to by Rule 695a, is to be sure that a means will be available of reimbursing the defendant for any damages caused him by the appointment of the receiver, if such appointment is wrongfully obtained. This case is a perfect example of why such a bond should be required.

Before a plaintiff would be entitled to have a receiver appointed over defendant’s business and property he must have a legal or equitable right to apply for such relief and he must have an interest in the subject matter. Pelton v. First National Bank of Angleton, 400 S.W.2d 398 (Houston Tex. Civ.App., 1966, no writ hist.). From the record before us we are wondering what right the corporation, that is the plaintiff in this case, would have to get a receiver appointed over defendants’ business and property, by reason of the facts alleged. The petition alleges that the plaintiff is a corporation. A corporation is a legal entity with a personality that is separate and distinct from those persons that compose it or own its stock. 14 Tex.Jur.2d 122, Corporations, Sec. 10. The petition does not allege that the plaintiff corporation bought a lot or lots from the defendants. We are not at all sure that if some of the stockholders of the plaintiff corporation had purchased lots from the defendants, that the corporation would by reason of those purchases have a cause of action against the defendants. We merely call attention to this question, without trying to ascertain the answer to it, in order to emphasize the fact that there is a real reason for requiring the applicant’s bond referred to in Rule 695a.

Defendants’ second point of error is that the trial court erred in entering the order appointing the temporary receiver without notice to take charge of defendants’ fixed and immovable property.

We sustain this point.

Rule 695, T. R. C. P., provides that “Except where otherwise provided by statute, no receiver shall be appointed without notice to take charge of property which is fixed and immovable. When an application for appointment of a receiver to take possession of property of this type is filed, the judge or court shall set the same down for hearing and notice of such hearing shall be given to the adverse party by serving notice thereof not less than three days prior to such hearing.”

Here the court appointed the temporary receiver without any notice to defendants and did it on the same day the suit was filed.

The petition alleged that defendants’ business was that of selling unimproved real estate (lots in an addition). The order appointing the temporary receiver without notice ordered the receiver to take charge of all of the assets and property, tangible and intangible, of any kind and type wherever located that belonged to the defendant partnership Continental Homes Company.

“Tangible property” includes both real and personal property. Erwin v. Steele, 228 S.W.2d 882 (Dallas Tex.Civ.App., 1950, ref., n. r. e.).

Real estate is “fixed and immovable property” within the meaning of Rule 695, and the trial court committed reversible error in this case in appointing a receiver over the defendants’ real estate (fixed and immovable property) without giving the defendants the notice required by Rule 695 and without giving defendants the right to be heard on the application before the receiver was appointed, as is required by Rule 695.

Our holding on the two points of error above discussed controls the disposition we must make of this case. If the matter arises again the trial court will be given the opportunity, at a hearing when both sides can be heard, to consider and pass on the questions raised in defendants’ remaining two points of error.

The order appealed from is reversed and the receivership is vacated.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Audrey Mae ROBERTS et vir., Appellants, v. CITY OF HALTOM, Appellee.
    No. 17659.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 24, 1975.
    Rehearing Denied Nov. 21, 1975.

      George C. Thompson & Associates, Inc., and A. Louise Rogers, Fort Worth, for appellants.
    Crumley, Murphy & Shrull, and Franklin Moore, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

The appeal is from a summary judgment rendered for defendant, City of Haltom City, that plaintiffs Audrey Mae Roberts and her husband take nothing by their suit for personal injury damages. Premise for the summary judgment was upon failure on the part of plaintiffs to comply with the Charter provisions of the City of Haltom City that “Before the City shall be liable . the person who is injured . or someone in his behalf, shall give the Mayor or the City Secretary notice in writing duly verified within thirty days after the occurring of the alleged injury or damage, stating specifically in such notice when, where and how the injury or damage was sustained, . . ..” It is undisputed that no written notice was given of Mrs. Roberts’ injury.

We affirm.

The event by reason of which Mrs. Roberts sustained her injury was a fall occasioned in consequence of work which was indisputably established as street surface repair and as a “proprietary function” of the City.

That being true V.A.T.S. Art. 6252 — 19, the Texas Tort Claims Act, is without application. Therein there is provision that the Act shall not apply to any proprietary function of a municipality. See “Exclusions” under Sec. 18.

As a result of want of application of the Texas Tort Claims Act we have a case where the City is entitled to escape liability, assuming it to have been existent, unless there has been “waiver” of the City’s right to rely on the provisions of its Charter relative to requisite notice, or presence of factual circumstances operative to “estop” the City from exercising the right to rely thereon.

In the instant case there was not a duty on the part of the City to plead its Charter provision relative to notice as an affirmative defense (like unto an application to a statute of limitation to which it might seem kindred) so there is no complication as would exist if the defense were one which the City might or might not choose to present. It is well settled in Texas law that where there exists such a Charter provision the burden is upon him who asserts a claim to establish compliance as a condition precedent to the maintenance of his suit. 40 Tex.Jur.2d, p. 341, “Municipal Corporations”, “XVII. Claims Against Municipality”, Sec. 651, “In general; Presentation of claim or notice of injury.”

The City based its motion for summary judgment upon receivable evidence by depositions on file and affidavits which established the failure of Mrs. Roberts, or anyone for her, to comply with the notice provision of its Charter. Such evidence proved its right to summary judgment unless Mrs. Roberts and her husband should come forward and demonstrate that the claim was backed by admissible evidence raising the issue of “waiver” or “estoppel”. They did not come forward and present admissible evidence raising such an issue and therefore the City was entitled by law to its judgment. See 4 McDonald Texas Civil Practice, 1971 Revised Volume, p. 134, “Judgments”, Sec. 17.26.2, “(Summary Judgment) — B. When Proper. (I) On Whole Case”, and cases cited thereunder; Eubanks v. Hughes Engineering Company, 369 S.W.2d 49 (Fort Worth, Tex.Civ.App., 1963, writ ref., n. r. e.); Smith v. City of Dallas, 425 S.W.2d 467 (Dallas Tex.Civ. App., 1968, no writ history).

Mrs. Roberts’ evidence, if indicative of “waiver”, was not of any such on the part of either the Mayor or City Secretary, the only officials mentioned in the City Charter, nor of any one connected with the City shown to have been expressly authorized with respect to “waiver” of any provision found therein. Absent evidence of such character the controlling strength of the City’s evidence persists. Barrett v. City of Dallas, 490 S.W.2d 605 (Dallas Tex.Civ. App., 1973, no writ history); Phillips v. City of Abilene, 195 S.W.2d 147, 150 (Eastland, Tex.Civ.App., 1946, error refused).

Judgment is affirmed.


author: SPURLOCK, Justice.

text:
    AMERICAN FIBER GLASS, INC., et al., Appellants, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee.
    No. 17698.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 24, 1975.
    Rehearing Denied Nov. 21, 1975.

      Robert O’Donnell, Dallas, for appellants.
    Hudson, Keltner, Smith, Cunningham & Payne, and Hershel R. Payne, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

Appellee, General Electric Credit Corporation, brought this action against appellants, American Fiber Glass, Inc., Admiral Corwin Mendenhall, and D. V. Wiles, seeking payment of an indebtedness owed ap-pellee by the appellants. American Fiber Glass was a company dealing in the retail sales of boats and motors. G. E. Credit is a finance company which financed the boats and motors for American Fiber Glass. Mendenhall is one of the founders of American Fiber Glass, a substantial stockholder, and a member of its Board of Directors, and is an expert in the field of management consulting.

On March 11, 1973, American Fiber Glass entered into a retail paper agreement with G. E. Credit by which the latter agreed to purchase the installment contracts, chattel mortgages, notes and other choses in action (accounts) of persons purchasing boats and motors and equipment from American Fiber Glass. At the same time, Mendenhall and Wiles executed a guaranty agreement by which they assured G. E. Credit the faithful performance of the obligations owed by American Fiber Glass to G. E. Credit and the prompt payment and performance of any other debt or obligation of any kind or character of American Fiber Glass to G. E. credit.

On April 2, 1973, about a month later, a separate agreement was entered into between American Fiber Glass and G. E. Credit by which the latter would also finance the actual inventory of American Fiber Glass. This letter agreement was signed by American Fiber Glass by its president and secretary-treasurer, but not by Mendenhall or Wiles.

Subsequently, American Fiber Glass defaulted in its obligations to G. E. Credit and the latter brought suit under the inventory financing agreement against American Fiber Glass and its guarantors. The guaranty agreement was never terminated. The case was tried before the court without the aid of a jury. Defendants appeal the verdict rendered against them in the amount of $38,161.59.

We affirm.

By his first point of error D. V. Wiles asserts that the trial court erred in rendering judgment against him because the evidence was insufficient to support the judgment because G. E. Credit never proved that he signed the guaranty agreement.

In the answer of the defendants, both Wiles and Mendenhall each stated that they did execute a guaranty letter but the intent of the guaranty letter was not intended to guarantee the payment of any debt accruing as a result of a floor-plan arrangement. Then by their answer this defendant has admitted the execution of the guaranty letter.

A copy of the guaranty agreement was attached to plaintiff’s petition. Plaintiff alleged the same was executed by each of the defendants. The pleading and this cause of action is founded on this guaranty agreement. The defendants did not file a sworn pleading or affidavit denying the execution of the instrument made the basis. of the suit. This instrument was admitted into evidence without objection. We hold that it was not necessary for plaintiff to prove execution of the guaranty agreement.

Rule 93, T.R.C.P., provides:

“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
“(h) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged' to be lost or destroyed. . In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.”

In VanHuss v. Buchanan, 508 S.W.2d 412 (Fort Worth Civ.App., 1974, writ dism.) this Court, speaking through Justice Brewster, stated:

“In this case (appellant) did not deny under oath the execution of the note sued on as is required by Rule 93, Texas Rules of Civil Procedure. Therefore, it was not necessary that plaintiff prove execution of the note by her. It was only necessary under those circumstances that the note be introduced into evidence in order to prove up its terms.”

We overrule this point.

By their second point of error, the defendants, Wiles and Mendenhall, assert the court erred in rejecting their defense of novation.

Appellants argue that since Mendenhall and Wiles were unaware of the floor-plan agreement made in April, such agreement was a novation of the agreement for which they were guarantors, and that therefore they are not liable for any obligations arising out of the later floor-plan transactions. They also maintain that the document they signed was a “trust receipt” and such is no longer recognized under the Uniform Commercial Code. The guaranty agreement entered into between G. E. Credit and Men-denhall and Wiles provides in part as follows:

“As an inducement to you to purchase or otherwise acquire any notes, drafts, conditional sale contracts, lease agreements, chattel mortgages, accounts receivable, trust receipts or other choses in action, (herein called ‘Accounts’) bearing the signature as maker, endorser, assignor, trustee, mortgagor or in any other capacity of American Fiberglass, Inc., of 2402 North Beckley, Lancaster, Texas 75146 (hereinafter called ‘Dealer’), and in consideration of your so purchasing or otherwise acquiring any one or more Accounts but without in any way binding you to do so, the undersigned does hereby guarantee to you, and in the event that this instrument be signed by two or more guarantors, the undersigned do hereby jointly and severally guarantee to you the due, regular and punctual payment of any sum or sums of money which Dealer now owes you or which Dealer shall at any time or from time to time hereafter owe you, whether evidenced by note or other instrument or by open account or otherwise and whether it represents an original balance, a balance reduced by part payment or a deficiency after sale of collateral or otherwise and does hereby further guarantee due, regular and punctual payment and prompt performance of any other debt or obligation of any kind or character of Dealer to you, and all losses, costs, attorney’s fees or expenses which may be suffered by you by reason of default of Dealer or of any of the undersigned.” (Emphasis ours.)

The plain terms of the guaranty agreement is to the effect that Mendenhall and Wiles guarantee all sums then owed or thereafter owed by American Fiber Glass to G. E. Credit.

After trial based upon evidence judgment was rendered for $38,161.59 which is shown by the evidence to be a debt owed G. E. Credit by American Fiber Glass and that American Fiber Glass is in default in this amount. It is clear that Wiles and Menden-hall owe G. E. Credit that amount under the guaranty agreement.

It is a well settled rule that parol evidence is not admissible to contradict or modify the provisions of a written guaranty agreement. Earp v. First State Bank of Abilene, 356 S.W.2d 178 (Eastland, Tex.Civ. App., 1962, ref., n. r. e.).

The inventory financing plan signed by G. E. Credit and American Fiber Glass is a trust receipt as contemplated by the guaranty agreement.

The following language from the comments to Section 9.101 of the Uniform Commercial Code is as follows:

“This Article sets out a comprehensive scheme for the regulation of security interests in personal property and fixtures.
“Existing law recognizes a wide variety of security devices, which came into use at various times to make possible different types of secured financing. .
“Nevertheless, despite the great number of security devices there remain gaps in the structure. .
“The growing complexity of financing transactions forces us to keep piling new statutory provisions on top of our inadequate and already sufficiently complicated nineteenth century structure of security law. .
“The aim of this Article is to provide a simple and unified structure within which the immense variety of present-day secured financing transactions can go forward with less cost and with greater certainty.”

Section 9.102(b) itself states:

“This chapter applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security.” (Emphasis ours.)

Chapter 9 of the U.C.C. includes trust receipts and did not abolish them. It is our opinion that the guaranty agreement covers the indebtedness of American Fiber Glass arising out of its trust receipt with G. E. Credit.

In any event the cause of action asserted by G. E. Credit against American Fiber Glass is a “chose in action”, and comes within the terms of the guaranty agreement.

Black’s Law Dictionary, Revised 4th Edition, defines a chose in action as: “A personal right not reduced into possession, but recoverable by a suit at law.”

This point is overruled.

By their third point the defense asserts that the trial court erred in rejecting the defendants’ offsets and accounting.

Stated in summary form the arrangement the parties had was that American Fiber Glass would order motors from Chrysler. Chrysler would then call G. E. Credit who would then approve the credit. Chrysler would then ship the motors to American Fiber Glass; then G. E. Credit would verify with American Fiber Glass that they had received the motors and the amounts of the invoice and that the sale was complete. G. E. Credit would then pay Chrysler the amount of the invoice. Under this arrangement G. E. Credit then became liable to Chrysler for the amount of such sales which had the prior approval of G. E. Credit.

Mendenhall testified that there had been a burglary of the American Fiber Glass place of business and motors valued at $10,-000-$11,000 had been stolen. These were motors that had been floor-planned by G. E. Credit. He testified that through hearsay he had heard that the burglars had been apprehended, the motors recovered and retained by the Dallas police department. The Internal Revenue Service then seized the motors because of the non-payment of sums due American Fiber Glass to the IRS. Thereafter, American Fiber Glass paid the IRS and then Chrysler repossessed the motors and therefore American Fiber Glass and its guarantors were entitled to this credit or offset. No one contends that G. E. Credit ever repossessed or came into possession of these motors.

C. E. Shumate, area credit manager for G. E. Credit, testified that G. E. Credit and Chrysler had held in abeyance their accounting between themselves pending the outcome of the present suit between G. E. Credit and American Fiber Glass.

Mr. Shumate testified that he had never heard of any merchandise being returned to Chrysler. There is no testimony in the record from anyone connected with Chrysler, the IRS, the police department, or anyone else having firsthand knowledge of any returned merchandise.

Shumate further testified that the defendants owed the amount recited in the judgment, and that all offsets, credits and payments had been allowed. The judgment is supported by the evidence and the judgment is not against the great weight and preponderance of the evidence.

The defendants contend that they are entitled to a credit or offset of the dealers reserve. In some instances a dealer would charge its customer more interest than that required by G. E. Credit. The difference would amount to a reserve. In the contract between American Fiber Glass and G. E. Credit dated March 11, 1973, entitled, “Agreement, Non-Recourse Plan”, there was a provision contained therein in paragraph 16 providing that this reserve could be held by the company as additional security for and not in lieu of performance of American Fiber Glass to G. E. Credit. This agreement further provided that G. E. Credit, in its sole discretion and without any obligation, could pay American Fiber Glass from time to time any part of this security fund, even though all recourse accounts purchased by them had not yet been liquidated completely. It also provided that losses occasioned by repossessions in some instances could be charged against the reserve.

Shumate testified that at the time of trial there was a negative or minus reserve balance.

We hold that there was evidence supporting the trial court’s judgment and that the trial court’s judgment was not against the great weight and preponderance of the evidence.

This point is overruled.

The judgment of the court is affirmed.


author: CADENA, Justice.

text:
    Richard HOVENDEN, Appellant, v. Wallace TENBUSH et al., Appellees.
    No. 15376.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 29, 1975.

      Tinsman & Houser, Inc., Robert C. Scott, San Antonio, for appellant.

      Beckmann, Stanard & Olson, Melvin A. Krenek, San Antonio, for appellees.
   CADENA, Justice.

Plaintiff, Richard Hovenden, sued Wallace Tenbush, Ten Eleven Building Materials and Ten Eleven Company, referred to in this opinion collectively as “defendant,” for damages resulting from the deterioration of the walls of plaintiffs building allegedly resulting from a defect in secondhand bricks purchased by plaintiff from defendant. Plaintiff appeals from an order granting defendant’s motion for summary judgment.

Jack Goebel Construction Company entered into a contract to construct a commercial building for plaintiff in San Antonio according to plans and specifications prepared by plaintiff’s architect. The plans called for the use of a certain type of Mexican brick, or something similar thereto. Several samples of brick were inspected by plaintiff and his architect but these were rejected for one reason or another. Defendant, who was engaged in the business of selling building materials, including new and used bricks, invited plaintiff and his architect to examine some new bricks which defendant had available at his place of business. After plaintiff stated that these bricks were unsatisfactory because of their color, defendant stated that he had some bricks which were being cleaned out of a lot. Plaintiff and his architect went to a vacant lot near some railroad tracks and examined the bricks, which at that time were in the process of being cleaned. Subsequently, plaintiff took some of his prospective tenants to look at the bricks. Plaintiff decided that these bricks were of the right color, and plaintiff and the architect told the defendant that plaintiff would take the bricks if defendant could timely furnish the amount required by plaintiff. Plaintiff had knowledge of the fact that the bricks were used bricks.

Defendant delivered the bricks and plaintiff’s building was completed with such bricks. Some time after the building was completed, the walls began to deteriorate, due to what plaintiff described as a “shedding” of the mortar.

Defendant, as movant for summary judgment, had the burden of demonstrating the absence of any genuine issue of material fact as to one or more of the factual elements of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Stated differently, the burden was on defendant to establish as a matter of law that plaintiff has no cause of action, and, therefore, all doubts as to the existence of an issue of fact must be resolved against defendant. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969). This merely means that we can accept as “facts” supporting the summary judgment only such facts as are conclusively established by the summary judgment “evidence.”

We do not understand defendant’s brief as asserting that the evidence conclusively negatives plaintiff’s contention that the damage to his building was caused by a defect in the bricks furnished by defendant. In any event, there is evidence supporting plaintiff’s theory and we must, under the applicable rules, assume that the damage to the building resulted from a defect in the bricks.

Plaintiff seeks to recover on theories of express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and strict liability of a seller of chattels in tort.

The briefs of both parties, in discussing the liability of defendant for breach of express or implied warranty, rely on the warranty provisions of the Uniform Commercial Code applicable to the sale of goods. Secs. 2.314-2.316, Tex.Bus. & Comm.Code Ann. (1967). However, plaintiff’s pleadings alleged, and the record establishes, that the building was completed prior to the adoption of the Code in Texas. Therefore, the question of defendant’s liability on warranty theories is not affected by the provisions of the Code.

Express Warranty

In his deposition, plaintiff declared: “[Defendant] represents that the bricks used in my building were of suitable quality to be utilized for building purposes. . [Defendant was] aware that the bricks were going to be used for building purposes and at all times represented by . silence that they would be suitable for the purpose for which they were intended to be used. . . . At no time did [defendant] ever disclaim any responsibility or liability for the used bricks, but at all times represented them to be suitable for the purpose for which used bricks are to be used for building purposes.” These quotations are taken from three successive sentences in the affidavit.

We do not view plaintiffs deposition as involving merely conflicting statements, in which case the inconsistency would, in itself, create a question of fact and compel the conclusion that defendant had not met the burden which rests on movants for summary judgment to establish the absence of material fact issues. Reading the three sentences together, plaintiff’s affidavit can only be construed as averring that defendant’s knowledge of the particular purpose for which the bricks were to be used, when considered in connection with defendant’s silence and failure to make any express disclaimer, can reasonably be interpreted as an express affirmation, promise, warranty or representation that the bricks were suitable to be used for the intended purpose. Without questioning the validity of the inference which plaintiff seeks to draw from defendant’s silence under the circumstances, we conclude that plaintiff’s affidavit conclusively establishes the absence of an express warranty of fitness for a particular purpose. Without intimating that silence can never result in the creation of an express warranty, we are convinced that a purchaser who examines the goods and received no comment from the seller cannot successfully claim that the seller’s silence created an express warranty. Cf. 3 Willi-ston, Sales Sec. 20-7, p. 194 (4th ed. 1974).

Implied Warranties

Since, as already noted, the sale with which we are concerned took place before the adoption of the Uniform Commercial Code in Texas, it becomes unnecessary for us to decide whether Secs. 2.314 and 2.315 of the Code, which deal with implied warranties, are applicable to cases involving sales of used articles. See Chaq Oil Co. v. Gardner Machinery Corp., 500 S.W.2d 877 (Tex.Civ.App. — Houston [14th Dist.] 1973, no writ); cf. 3 Williston, op. cit. Sec. 19-9.

Prior to the adoption of the commercial code in Texas, our courts uniformly held that no implied warranties arose in connection with sales of used goods purchased with knowledge of their second-hand condition. 26 Baylor L.Rev. 630, 634-37 (1974). As a matter of law, then, plaintiff cannot recover on a theory of implied warranty.

Strict Liability in Tort

Sec. 402A, Restatement (2d) Torts (1965), imposes strict liability on “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property ... for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or ultimate consumer without substantial change in the condition in which it is sold.”

It is undisputed that defendant sold the bricks to plaintiff; that defendant was engaged in the business of selling used bricks; and that the bricks reached plaintiff without substantial change in the condition in which they were sold to plaintiff by defendant. Defendant, however, asserts that Sec. 402A is inapplicable because the record establishes conclusively that the bricks were not “unreasonably dangerous” and because, in any event, Sec. 402A does not impose liability on the seller of used products, but only on the manufacturer.

Defendant apparently relies on deposition testimony to the effect that the bricks in question were used in the construction of buildings of the Pearl Brewery, in San Antonio; that those buildings had been in existence for at least 31 years before they were demolished; and that the person who demolished the buildings and sold the used bricks to defendant noticed nothing different about the bricks as compared to other bricks. Even if we construe the testimony as establishing that during all these years there was no injury to the Pearl buildings traceable to a defect in the bricks, this does not conclusively establish the absence of a defect. The rule is that long-continued use of a product without injury to the user or his property does no more than create an issue of fact as to the defective condition of the product. 1 Hursh & Bailey, American Law of Products Liability Sec. 1:13 (2d ed. 1974).

We find nothing in Sec. 402A, or in the accompanying comments, which suggests that the rule there announced is not applicable to dealers in used products. The liability is imposed on the seller of “any product.” Neither the rule nor the commentary contains any language which can fairly be interpreted as making the rule applicable only to sellers of new products. In Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970) it was held that a manufacturer of a defective product was strictly liable to a purchaser who had subsequently purchased the product as a used product.

Defendant argues that a person who is injured by a defect in a product which he purchased as a used article can invoke the doctrine of strict liability in tort only against the manufacturer of the product. We are not persuaded.

The Restatement imposes liability on any person who “sells” a defective product which caused injury to person or property. According to comment f, the rule applies “to any manufacturer ... to any wholesale or retail dealer or distributor, and to the operator of a restaurant.” There is no basis for limiting the term “one who sells any product” to persons who sell products which they have manufactured.

Defendant does not here contend that a non-manufacturing seller of a defective new product which causes harm is not strictly liable. But in order to uphold defendant’s contention, it is necessary to change “any product” to “any new product.” The decision in Gibbs would then, of course, be obviously wrong. In order to avoid condemning the Gibbs holding, it would be necessary to add a proviso to the effect that, in cases involving injury from defective used products, only the manufacturer is to be subjected to strict liability, and to rewrite comment f so that, instead of reading “any manufacturer . . ., any wholesale or retail dealer or distributor,” it would read, “any manufacturer ., and, where the product is sold as a new product, . . . any wholesale or retail dealer or distributor.”

We do not interpret Gibbs as holding that in cases involving used products only the manufacturer can he held liable. The only question involved in Gibbs was the liability of the manufacturer. There is no basis for concluding that a holding that a manufacturer is liable is a holding to the effect that no other person in the chain of distribution of the product is liable.

Defendant calls our attention to the following statement by Dean Keeton, who has written extensively on the subject of strict liability: “The principle of strict liability has been regarded as applicable only when the product leaves the manufacturer’s hands in a defective condition.” (Defendant’s emphasis.) Defendant insists that this statement supports the view that Sec. 402A imposes liability only on manufacturers. We disagree.

It is clear that Dean Keeton was addressing himself solely to the problem of the liability of the manufacturer. Clearly, the manufacturer who places nondefective product in commerce is not a person “who sells a product in a defective condition.”

The only Texas case involving the non-manufacturing of a used product which we have found is McLain v. Hodge, 474 S.W.2d 772 (Tex.Civ.App. — Waco 1971, writ ref’d n. r. e.). There, the defendant retail dealer was held strictly liable for injury resulting from a defective rifle which he had sold as a used gun. McLain is, perhaps, distinguishable from the case before us, since there the defendant dealer had originally sold the weapon as a new firearm, and had repurchased the gun from the original purchaser before reselling it as a used article to plaintiff, and the Waco Court pointed out that there was evidence of probative force that the rifle was defective at the time the defendant sold it as a new rifle. 474 S.W.2d at 775. But, at the very least, this decision lends no support to defendant’s contention that Sec. 402A imposes no liability on a non-manufacturing seller when the transaction involves the sale of a used product. McLain can fairly be interpreted as furnishing some support for the contention that the fact that defendant establishes that he sold the defective product as a used article does not preclude recovery under Sec. 402A.

We have found no case in which a court in Texas, or in any other American jurisdiction, has denied recovery under Sec. 402A because the transaction involved a used product where the facts would have supported recovery had the product been new. Admittedly, the cases involving secondhand products are not numerous.

The Supreme Court of Mississippi, in denying recovery under the doctrine of strict liability, observed that it knew of no case in which “the seller of a used product has been held liable for injuries resulting from the use thereof under the doctrine of strict liability in tort,” as distinguished from liability under the doctrine of implied warranty. Pridgett v. Jackson Iron & Metal Co., 253 So.2d 837, 840 (1971). Apparently, the court’s research did not unearth the decision by the Texas Supreme Court in Gibbs. In any event, the defendant in Jackson was not within the reach of Sec. 402A, even if the product had been sold as a new product, because there was no evidence that the chattel was “inherently dangerous,” or that, at the time of the injury, the product was being used for its intended purpose. 253 So.2d 841. It is, perhaps, significant, that the Mississippi courts have been reluctant to impose strict liability in tort on retail sellers, even where the transaction involves the sale of a new product, where the product sold by the retailer is in the same condition as it was when it left the hands of the manufacturer. Sam Shainberg Co. v. Barlow, 258 So.2d 242 (Miss.1972).

In Bombardi v. Pochel’s Appliance & TV Co., 9 Wash.App. 797, 515 P.2d 540 (1973), hearing denied, 10 Wash.App. 243, 518 P.2d 202 (1973), the purchaser of a used article successfully invoked Sec. 402A in a suit against the manufacturer. This, of course, is the same result as that reached by our Supreme Court in Gibbs.

The only other two decisions involving used products by appellate courts which we have found were handed down by the Supreme Court of Oregon. In Cornelius v. Bay Motors, Inc., 258 Or. 564, 484 P.2d 299 (1971), a judgment in favor of a used car dealer was affirmed on the ground that, under the evidence, the jury could have reasonably concluded that the claimed defect in the vehicle did not render it “unreasonably dangerous.” Although the opinion of the court expressly states that the question of whether Sec. 402A is applicable is not being decided, the opinion, in a footnote, points out that Sec. 402A speaks of the liability of “[any] one who sells any product,” and that the rule embodied in that section “by its terms is not limited to [the] sellers of new products.” The footnote also reveals the fact that defendant was not relying on the fact that the vehicle in question was a used vehicle. 484 P.2d at 303, n. 4. The concurring opinion of Chief Justice O’Connell in this case lends some support to defendant’s argument here, but discussion of such concurring opinion will be postponed until notice is taken of the opinion of the Oregon Supreme Court in Markle v. Mulholland, 265 Or. 259, 509 P.2d 529 (1973).

In Markle, the purchaser of a recapped tire sued the retailer, the wholesaler and the recapper (whom the court treated as the manufacturer of the recapped tire) to recover for personal injuries resulting from a blowout of the tire. The defect which caused the injury was not in the retread, but in the casing on which the new tread was placed. The evidence established that the casing, at the time of the recapping, had been in “use for the life for which it had been manufactured.” Thus, the defect was in a used component of the product, and it is clear that the court treated the case as one involving a defect in a used product.

The case produced five opinions from the seven members of the Oregon Supreme Court, with five members of the court agreeing that Sec. 402A imposed liability on the manufacturer, the wholesaler and the retailer. The numerous opinions in the case reflect a disagreement concerning the basis for the doctrine of strict liability.

Three members of the majority took the position that Sec. 402A is based on two rationales, the theory of enterprise liability and “something similar to the rationale behind an implied warranty.” 509 P.2d at 532. One concurring justice, rejecting the notion that liability under Sec. 402A rested on what he described as “two separate inconsistent bases,” insisted that the sole basis for the doctrine of strict liability in tort is to be found in the theory of enterprise liability. 509 P.2d at 540.

In his concurring opinion, Chief Justice O’Connell again expressed the view, which he had stated earlier in his concurring opinion in Cornelius, that liability under Sec. 402A rested solely on “representational conduct” by the seller, and he repeated his conclusion that Sec. 402A is limited in its application by the implied warranty provisions of the Uniform Commercial Code. 509 P.2d at 536-39.

One dissenter would have ruled for defendants because he could find no basis for holding that the recapper, wholesaler and retailer “had impliedly represented that the used casing on the recap would perform as a new casing.” 509 P.2d at 544. He then concluded that the seller of a used product is liable only for defects which he could have discovered by reasonable inspection. That is, the seller of a used product “is liable for negligence, and no more.” 509 P.2d at 545.

The other dissident was unable to find any evidence that the tire was defective at the time it left the hands of any of the defendants. 509 P.2d at 547. In the course of his opinion he rejected the theory of enterprise liability as the basis for Sec. 402A, stating that, while that rationale “may be a fine economic theory, . it has no place in the law where the courts are seeking justice based on fault and innocence,” and added that while that theory “may justify the rule ... it cannot be the reason for creating it.” 509 P.2d at 545.

In this case, since Texas adopted the Uniform Commercial Code after plaintiff’s cause of action arose, we need not consider the question whether the implied warranty provisions of the Code had the effect of establishing an action in implied warranty as the sole remedy, in the absence of negligence or express warranty, available to a purchaser who has sustained injury as the result of a defect in a chattel which he purchased. The problem is discussed in Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore Unconstitutional?, 42 Tenn. L.Rev. 123 (1975).

The theory which lends the greatest support to defendant’s position in this case is the representational theory advocated by Chief Justice O’Connell in his concurring opinions in Cornelius and Markle. His espousal of this theory, as enunciated in Cornelius, seems to be based on his conviction that since the Uniform Commercial Code deals with the subject of the liability of a seller of chattels, the judicial interpretation of Sec. 402A should be consistent with the legislative policy expressed in the warranty provisions of the code. According to this theory, the question relating to the type of representation which a seller of used chattels will be deemed to have made is a question of law to be decided by the court, so that “A products liability case ... is for the jury only after the court has determined what the seller in the particular type of sale impliedly represents as to the condition of the product. . . .” 484 P.2d at 308. The Chief Justice did not believe that a used car dealer can be “deemed to make a representation that the vehicle he is selling has brakes which are free from defects which could arise from normal use.” 484 P.2d at 307.

It is clear from the exposition of the representational theory in Cornelius that the effect of adopting this theory would not be to establish a rule of thumb to the effect that sellers of used products are never strictly liable for injury resulting from defects in such products. At most, the Chief Justice’s opinion in Cornelius suggests that the immunity of such a seller from strict liability extends only to defects which arise from normal use of the chattel. This conclusion is strengthened by the fact that he agreed that Sec. 402A imposed liability on sellers of used products where the evidence showed that the injury resulted from an inherent defect in the product, rather than from a condition brought about by normal use of the chattel.

The conclusion that Sec. 402A imposes liability only “within a framework of representational conduct” is, on its face, inconsistent with that section and its accompanying commentary, particularly comments c and m. Chief Justice O’Connell at least tacitly admitted as much when he charged, in Markle, that advocates of the enterprise liability rationale were confusing “the rule laid down” in the black-letter statement of the rule “in Sec. 402A with the commentator’s explanation for the adoption of the rule,” and added that there is “nothing to compel the conclusion that this rule is necessarily based upon the reasoning that the seller can best bear or shift the cost of injury, although this happens to be the explanation used in the comment.” 509 P.2d at 538.

The attempted distinction between the black-letter statement of the rule and “the commentator’s explanation for the adoption of the rule” suggests that after the adoption of the rule some anonymous commentator (actually, Dean Prosser) added his own gloss in the form of “comments.” This suggestion cannot be unquestioningly accepted. Professor Wechsler, Director of the American Law Institute at the time that Restatement (2d) Torts was adopted, assures us that the commentary was “no less carefully examined and debated by the Advisers, the Council and the Institute than the black letter rules themselves.” 1 Restatement (2d) Torts ix. The comments, then, were forged in the same crucible which produced the black-letter statement of the rule itself.

These comments were before the courts which have adopted Sec. 402A, and there is no reason for assuming that these courts were unaware of the fact that comment c clearly adopts the theory of enterprise liability as the basis for the rule.

Even if the representational theory be accepted, the record before us does not establish as a matter of law that the alleged defect in the bricks resulted from normal use. Nor would the adoption of the enterprise liability theory compel the conclusion that the seller of a used product would be strictly liable for damage caused by defects which are the result of normal use of the article.

The conclusion that a seller of used products is not insulated from liability under Sec. 402A finds some support in, or, at least, is not precluded by, the language of that section and the accompanying commentary. Such a result is clearly supported, as applied to an intermediate seller, by the decision of the Oregon Supreme Court in Mar-ide. Such a result is consistent with, if not in fact supported by, the decisions of our courts in Gibbs and McLain. Such a holding is not contrary to any definitive holding by any court of which we have knowledge, and it finds support in the cases holding that lessors of defective chattels are strictly liable, since in most lease cases the leased chattel is necessarily a used product.

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

      . -Plaintiff also joined as defendant his contractor, Jack Goebel Construction Company, but plaintiff’s suit against Goebel was severed from plaintiff’s cause of action against Tenbush, Ten Eleven Building Materials and Ten Eleven Company.

       Keeton, Products Liability — Liability without Fault and Requirements of a Defect, 41 Tex.L.Rev. 855, 858 (1963).

      . The holding in Ellis v. Rich’s, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975), that the doctrine of strict liability applies only fo manufacturers, as distinguished from intermediate sellers, is clearly based on the peculiar provisions of the Georgia version of the Uniform Commercial Code. See, Ga. Code Ann. Secs. 105-106 (1968), quoted in 212 S.E.2d at 376.

      . “The idea running through the implied warranty cases is that a seller . . . impliedly represents that the product meets the standard which an article of that type normally has in the market. We may assume that the legislature, . . intended to limit the seller’s liability within this framework of representational conduct, however implied. If so, Sec. 402A must be similarly circumscribed.” 484 P.2d at 306, 307.

      . Adoption of the representational theory is not essential in order to avoid imposing on sellers the liability of insurers. The requirement that the product be defective effectively precludes the transformation of the seller into an involuntary insurer, especially when the phrase, “in a defective condition unreasonably dangerous to the user or consumer or his property” is interpreted to refer to a defect which would cause “a reasonable person [to] conclude that the magnitude of the . . . perceivable danger as it is proved to be at the time of trial outweighed the benefits of the way the product was designed and marketed.” Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 38 (1973).

      . 1 Hursh & Bailey, American Law of Products Liability Sec. 4:30 (2d ed. 1974).


author: O’QUINN, Justice.

text:
    Jeanette Lloyd CRISPIN, Appellant, v. Arthur CRISPIN, Appellee.
    No. 12320.
    Court of Civil Appeals of Texas, Austin.
    Oct. 29, 1975.
    Rehearing Denied Nov. 19, 1975.

      David Ball, Jr., Houston, for appellant.
    George E. Ramsey, III, Watkins, Ledbet-ter, Hayden & Ramsey, Austin, for appel-lee.
   O’QUINN, Justice.

Jeanette Lloyd Crispin, the appellant, brought this action, in the nature of a bill of review, to set aside a property settlement approved in a prior judgment of divorce. The principal ground alleged by appellant was that her former husband, Arthur F. Crispin, “. . . set up trust funds, partnerships and other business vehicles in order to disguise, mislead and defraud Mov-ant [appellant] of her share of their community property.”

The trial court entered judgment that appellant take nothing by her suit. We will affirm the judgment of the trial court.

Appellant and appellee met in 1965, were married in 1967, and were divorced in August of 1973. Appellant previously had married a doctor in 1953, from whom she was divorced in 1963. Five children were born to that marriage. At the time of that divorce Mrs. Crispin employed attorneys both in Houston, Texas, and Phoenix, Arizona, to represent her in the property settlement and divorce proceedings. Under judgment in that case, Mrs. Crispin was awarded two homes, a Cadillac automobile, a bond, and child support and alimony allowances. Subsequently, her former husband in that marriage acquired custody of four of the five children.

After marriage to Crispin in 1967, appellant and her husband acquired a home in Spain and another home near Spicewood, Texas, located on a tract of fifteen acres. Crispin had come to the United States from Belgium in 1952, when he founded and became president of American Steel Building Company, a connection he maintained until 1971 when he sold his interest in the business.

Appellant pleaded that during her marriage to Crispin she was told little, if anything, about Crispin’s business affairs and therefore had little knowledge of her husband’s financial condition. Appellant further insisted that she was allowed only $85 a week to “run the house on” and was not allowed tó spend more without her husband’s consent. Mrs. Crispin claimed that her husband repeatedly stated that any money they had was his separate property, and he refused to discuss financial matters with her.

Crispin brought suit in 1973 for divorce. Mrs. Crispin did not retain an attorney because, she stated, Crispin told her it would be too expensive. The record shows that Mrs. Crispin was willing for there to be a divorce and that to her money was “too secondary” for her to think of it. Crispin’s counsel prepared a written property settlement agreement under which appellant relinquished her rights to the “Arthur Crispin Trust,” created when Crispin sold his interest in the American Steel Building Company in 1971, which trust agreement both appellant and appellee had executed. The trust was valued at approximately $500,000. In addition, appellant conveyed her interest in the Spieewood property to Crispin pursuant to the property settlement agreement. Under the property settlement appellant received $5,000 in cash and title to a 1970 Volkswagen automobile.

Prior to executing the property settlement agreement, Mrs. Crispin spent close to half an hour reading the instrument, and later went to the courthouse where she participated in the divorce proceedings during which the trial court approved the agreement. Under questioning by the trial court, appellant stated that she understood the property settlement and agreed to it. The record shows that part of the property agreement had been rewritten at Mrs. Cris-pin’s request to allow additional money for child support.

During the marriage of appellant and appellee they traveled extensively, going abroad six times, and acquired a home in Spain. Appellant testified that the couple lived well, maintained a good standard of living, and that she was willing to retire to Europe with Crispin. Shortly after the couple married, Crispin adopted appellant’s minor daughter of her prior marriage, and appellant agreed that Crispin was a good father. Appellant’s intellectual status is established in the record by testimony that during the marriage she completed two years of college education with a grade point average of 3.5.

Appellant contends on appeal that the property settlement agreement should be set aside because Crispin’s acts constituted a fraud on her property rights. She contends that Crispin’s failure to inform her of the value of the property held in the trust constituted concealment of assets subject to division in the divorce action. Crispin joins issue in denying that there was any fraud on appellant, or, if fraud should be found, that appellant was negligent in failing to ascertain what assets comprised the marital estate.

It is settled that the petitioner in a bill of review, seeking to invoke the equity power of the court to set aside a prior judgment, must plead and prove (1) a meritorious cause of action or defense (2) which petitioner was prevented from establishing in the prior proceeding by fraud, accident, or wrongful act of the opposite party, (3) unmixed with any fault or negligence on the part of petitioner. Gracey v. West, 422 S.W.2d 913, 915 (Tex.Sup.1968); French v. Brown, 424 S.W.2d 893, 895 (Tex.Sup.1967); Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.Sup.1964).

We agree with the findings and conclusion of the trial court implicit in the judgment that appellant as petitioner below failed to sustain the legal requirements necessary to support a bill of review.

Appellant had the burden to show that Crispin was guilty of extrinsic fraud, as opposed to intrinsic fraud, which prevented her from asserting her right to a greater share in the property. Extrinsic fraud or deception is a wrongful act by the other party to a suit which prevents the losing party from knowing about his rights or defenses, or from having a fair opportunity to present them upon trial and fully litigate such rights. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950); O’Meara v. O’Meara, 181 S.W.2d 891, 893 (Tex.Civ.App. San Antonio 1944, writ ref.).

Appellant failed to show that Crispin by any act of his deceived or misled her, except by her general testimony that Crispin did not discuss financial matters or business operations with her. The record shows that the parties from time to time made wills affecting disposition of their property. Both before and after the child was adopted by appellee a will was made by appellant, and both parties made wills in Spain to dispose of property there in accordance with Spanish law. When the disputed trust was created in 1971, Mrs. Crispin executed the trust agreement and also made a will. Mrs. Crispin testified that she and Crispin discussed the pending sale of his business from time to time over a period of several weeks prior to the actual sale. Appellant was aware of bank accounts and maintained a separate bank account and savings fund of her own, and was authorized to draw on a joint account in a Houston bank.

Mrs. Crispin had knowledge of her husband’s salary and how it was earned and paid; she knew he dealt in stocks and bonds, although she disclaimed any personal knowledge of the stock market; she knew of the proposed sale of the business before it was sold, and was aware of the consummation of that transaction when it occurred; she was cognizant of the fact that proceeds from the sale in the company were to be used to establish a trust upon which the couple was to live, and she later executed the trust agreement lodged with the Southern National Bank in Houston, where the joint account was kept; she executed joint income tax returns filed by the parties for six years, from 1967 through 1972, which stated Crispin’s earnings for each year.

After suit for divorce was filed, Mrs. Crispin objected to phraseology in the waiver of citation furnished her, and after consultation with an attorney, she obtained a revision of the waiver to insure that trial would not be held without notice to her. Later Mrs. Crispin, after carefully reading the property settlement agreement for twenty to thirty minutes, executed the instrument, and then went to the courthouse where she participated in the divorce hearing. The property settlement instrument, with respect to the trust, provided: “Petitioner [Crispin] shall take as his separate property all interest in and to a certain Trust Agreement dated March 17, 1971, known as the Arthur F. Crispin Trust. By the execution of this instrument, Respondent [appellant] specifically relinquishes, releases, and divests any and all right, title, and interest which she may have, or have had, if any, in and to the aforementioned Arthur F. Crispin Trust, dated March 17, 1971.”

Although Crispin conceded at the hearing on the bill of review that he did not disclose to the court during the divorce trial all assets in the trust, the record shows that Mrs. Crispin knew when she joined Crispin in establishing the trust in 1971 that the corpus of the trust was expected to produce interest sufficient for the couple to live on it and perhaps retire in Europe.

Appellant relies on the “law and doctrine of the Lawler case” in contending that Cris-pin was guilty of extrinsic fraud. Dudley v. Lawler, 468 S.W.2d 160 (Tex.Civ.App. Waco 1971, no writ). Appellant argues that “if the representations of the husband are false (whether intentional, unintentional or accidental) and are relied upon by the wife there is a presumption of extrinsic fraud.” The general rule stated by appellant has support in decisions by Texas courts, but reliance on Lawler is misplaced. The appeal in Lawler was from a summary judgment that the wife take nothing. The appellate court reversed the judgment and remanded the case because the court found “there are issues of fact, including fraud, which should be tried to a jury.” The expressions of the court regarding the husband’s fiduciary duty to his wife were dicta and lack the force of an adjudication. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1126 (1913); State v. Valmont Plantations, 346 S.W.2d 853, 878 (Tex.Civ.App. San Antonio 1961, aff’d, opinion adopted, 163 Tex. 381, 355 S.W.2d 502).

The record is devoid of evidence that Crispin made representations, false or otherwise, concerning the nature, extent, or value of the property acquired by the couple during their marriage. It is reasonably clear from the record that Mrs. Crispin knew, from the manner and standard of their living, that the business Crispin had founded and later sold to provide assets for the trust was something more than insubstantial. Crispin had mentioned to his wife debts and mortgage obligations, but the record does not show that these representations were in fact untrue or misleading.

If there exists in the record more than a scintilla of evidence that the acts or statements of Crispin constitute a basis for extrinsic fraud, we are brought to the question of whether such conduct was unmixed with fault or negligence on the part of appellant. Appellant argues that because her portion of the estate under the property settlement was so small, as compared with the amount received by Crispin, that an injustice resulted.

In an action on bill of review a showing only of injustice done by the prior judgment is insufficient. The Supreme Court stated the rule in 1883 that: “It must further distinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case.” Johnson v. Templeton, 60 Tex. 238, 239 (1883).

This Court in 1965 followed Johnson v. Templeton and applied the doctrine in an action by a wife to set aside a prior property settlement incorporated in a judgment of divorce. Neill v. Neill, 386 S.W.2d 642, 646 (Tex.Civ.App. Austin 1965, writ dism’d). In that case, as in the cause now on appeal, the wife indicated to the court trying the divorce that she understood the property settlement agreement and was satisfied with it, and, further, assented to the divorce.

Mrs. Crispin, like the wife in Neill, made no effort to ascertain the extent of property settled in the agreement, although Mrs. Crispin was acquainted with persons connected with the Houston bank where the trust agreement was signed by her and where she and her husband maintained a joint account. Mrs. Crispin had been through an earlier divorce and property settlement in her first marriage. She conceded in the bill of review hearing that she knew she could have employed counsel in the Crispin divorce action and that attorney’s fees would be taxed without burden to her. She testified that after her first marriage ended she had on two occasions employed counsel in court contests with her former husband, once over child support and once on custody of the children.

The record, as already observed, indicates clearly that Mrs. Crispin is a woman of intelligence and experience and possesses sufficient resourcefulness to discover facts and assert her rights when the occasion demands such action. It would have taken very little effort on her part for Mrs. Cris-pin to ascertain the net value of the marital property prior to the settlement. She conceded that she was under no duress to sign the agreement, and that, after signing the agreement, went to the courthouse where she assured the judge trying the divorce that she understood and was satisfied with the property settlement the court approved in the judgment.

Appellant’s failure to seek the information she now contends was withheld from her constitutes a bar to the relief she seeks in this action in bill of review.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. J. C. SCOTT, Appellee.
    No. 762.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 30, 1975.
    Mike Hatched, Ramey, Flock, Hutchins, Grainger & Jeff us, Tyler, for appellant.
    Ken T. Miller, Tyler, for appellee.
   McKAY, Justice.

This workmen’s compensation case is before us on remand from the Supreme Court of Texas for consideration of appellant’s points of error 4 to 7, inclusive. For a more detailed statement of the facts, see our previous opinion in 513 S.W.2d 246 and the opinion of the Supreme Court in 524 S.W. 2d 285.

Appellant, in points 4 and 5, contends that the trial court erred in overruling his amended motion for new trial because the jury’s answers to Special Issues Nos. 2 and 3 are against the great weight and overwhelming preponderance of the evidence. We agree with this contention.

In reviewing the question of whether the jury’s answers are against the great weight and preponderance of the evidence, we are required to consider and weigh all of the evidence in the case, including that evidence which supports the verdict and that evidence contrary to the verdict, and to set aside the verdict and remand the cause for a new trial if we conclude that 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 (1952). Therefore, a brief review of the evidence is necessary.

First, we consider the evidence in support of the jury’s finding that appellee was injured while in the course and scope of his employment. There is evidence that appellee attempted to help put out a fire on a fork lift on his employer’s premises at approximately 7:30 a. m. on the morning in question before he was scheduled to begin work at 8:00 a. m. There is a total absence of evidence concerning appellee’s activities or whereabouts from 8:00 a. m. until mid-morning when he was found injured. The only other evidence in the record in support of the jury’s answer to Special Issue No. 3 is that appellee was found injured on his employer’s premises during working hours in a place that he occasionally had reason to work.

In contrast, there is no direct evidence as to how the appellee was injured and there is no direct evidence as to the cause of his injuries. Further, the record is silent as to whether appellee was working immediately before or at the time of his injury or, indeed, whether appellee did any work for his employer after 8:00 a. m. on the morning of his injury.

Next, we consider the evidence contrary to the jury’s finding of course of employment. The evidence shows that appellee’s time card was not “punched” on the morning of his injury. There was evidence that the time clock did not always function properly, but there was no evidence the time clock was not working on the day in question. Although contradicted by appellee’s witnesses, some witnesses for appellant testified that appellee was intoxicated, while others gave testimony that would indicate that appellee was or had been drinking intoxicants on the morning of his injury. In addition, there was testimony that on at least one previous occasion appellee had been found drunk and asleep in the same general vicinity where his injury occurred. One witness testified that shortly after ap-pellee was found injured, a whiskey bottle was discovered on top of the bales from which appellee allegedly fell. Lastly, the evidence shows that appellee’s duties on the job did not normally require him to work in the area where his injury occurred.

In summary, it would appear that the jury’s finding of course of employment was based solely on inferences drawn from the circumstantial evidence that appellee was found injured on his employer’s premises during working hours in an area where he occasionally worked. In considering whether a verdict is against the great weight and preponderance of the evidence “. a verdict resting on circumstantial evidence should afford the court somewhat more freedom to trust its own judgment than one resting on direct evidence.” Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803 (1952). In our opinion, the inference that appellee was in the course of his employment when injured is too weak to sufficiently support the jury’s answer in light of the evidence in the record to the contrary. The jury’s answer to Special Issue No. 3 would appear to rest on mere surmise, conjecture, suspicion or sympathy.

When a court of civil appeals finds a jury’s verdict to be against the great weight and preponderance of the evidence, the court may remand the case for a new trial “. . . even though the verdict be supported by more than a scintilla of evidence and even though reasonable minds could differ about the conclusion to be drawn from the evidence.” See Garwood, supra. In our opinion, the jury’s finding that appellee was in the course of his employment is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust despite the existence of some evidence in the record tending to support the jury’s answer to Special Issue No. 3.

The preceding discussion also serves as a thorough review of the evidence concerning the jury’s answer to Special Issue No. 2 finding that appellee’s injury was accidental. In our opinion, the jury’s finding that appellee’s injury was accidental is also so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

In light of our decision, a consideration of appellant’s points of error 6 and 7 is unnecessary.

The judgment of the district court is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.

      . “Do you find from a preponderance of the evidence that such injury was the result of an accident? ‘Accident’ means an unde-signed or unexpected occurrence, traceable to a definite time and place. Answer: We do.”

      . “Do you find from a preponderance of the evidence that Plaintiff received such injury in the course of his employment by Block (sic) Metals, Inc.? ‘Injury in the course of employment’ means any injury having to do with and originating in the work, business, trade or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere. An injury received while the employee is in a state of intoxication is not in the course of employment. Answer: We do.”


author: ELLIS, Chief Justice.

text:
    HOWARD GAULT AND SON, INC., Relator, v. Honorable Michael P. METCALF, District Judge, et al., Respondents.
    No. 8631.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1975.

      Jack Hazle wood, Amarillo, for relator.
    Witherspoon, Aikin, Langley, Woods & Gulley, D. Wesley Gulley, Shuval & Saul, Andrew J. Shuval, Hereford, for respondents.
   ELLIS, Chief Justice.

The original mandamus proceeding is brought by relator, Howard Gault and Son, Inc., seeking to compel the Honorable Michael P. Metcalf, in his capacity as Judge of the 69th Judicial District Court in and for Deaf Smith County, Texas, to proceed to trial as to all three defendants in pending Cause No. 6697, styled Howard Gault and Son, Inc. v. First National Bank of Hereford, Texas, Pitman Grain Company and T. B. Thomas, Jr., rather than as to T. B. Thomas, Jr., the only party affirmatively granted a new trial. Writ refused.

At a previous jury trial, the trial court instructed a verdict for Pitman and, upon receipt of the jury’s verdict, rendered a take-nothing judgment on Gault’s asserted cause of action against the Bank, but rendered judgment for Gault against Thomas. The facts of this case are more fully set out in the opinion of this Court in Howard Gault & Son, Inc. v. First National Bank, 523 S.W.2d 496 (Tex.Civ.App. — Amarillo 1975, no writ), wherein the relator, then plaintiff-appellant, challenged the take-nothing judgment entered by the trial court in favor of the Bank and Pitman. We dismissed that appeal because the trial court had granted defendant Thomas’ motion for new trial, and the order adjudicating the rights of relator as against the Bank and Pitman was interlocutory, and did not fall within any exception to the general rule that interlocutory orders are not appealable.

By motion filed on August 15, 1975, relator urged, among other matters, the trial court to grant a new trial as to defendants Bank and Pitman, in the event defendant Thomas was permitted a new trial as the trial court had previously ordered. On August 18, 1975, by order of the trial court it was found, in part, that a severance of the case should not be ordered as to either or both defendant Bank and defendant Pit-man, that the motion by the Bank that the case be not set for a second jury trial with regard to the Bank should be granted, and that plaintiffs motion filed August 15, 1975, should be denied. The trial court ordered that a new trial be held as between Gault and Son, Inc. and Thomas, without the appearance therein of either First National Bank or Pitman Grain Company as defendants since the claims of plaintiff as against the Bank and Pitman had been disposed of by prior judgment of the trial court, except as against the Bank in its capacity as garnishee.

Relator contends that the “automatic effect” of the new trial granted as to Thomas was to grant a new trial as to the remaining defendants, the Bank and Pitman, as well. Relator further contends that to deny its application for writ of mandamus will allow the trial court to violate the fundamental rule that there shall be but one judgment in each case. Tex.R.Civ.P. 301. As a corollary to this rule, relator urges that there necessarily be “only one trial to support the one judgment.”

We do not agree that the corollary proposed by the relator necessarily follows under the provisions of Rule 301. The requirement that there be but one final judgment in a case does not mean there must be only one single trial covering all parties and all issues. Compton v. Jennings Lumber Co., 295 S.W. 308 (Tex.Civ.App. — Eastland 1927, writ dism’d). The case of Alexander v. Meredith, 154 S.W.2d 920 (Tex.Civ.App. —Texarkana 1939), certified questions dismissed, 137 Tex. 37, 152 S.W.2d 732 (1941), involved an application for a writ of mandamus wherein the factual situation was quite analogous in its essential aspects to that in the instant case. In that case the judgment rendered by the trial court was subsequently modified to make the judgment interlocutory as to three of four defendants, pending the outcome of a trial as to the fourth defendant pursuant to the granting of plaintiff’s motion for a new trial in which new trial had been sought as to all of the defendants. The order modifying the judgment further recited that upon determination of plaintiff’s suit against the fourth defendant, the interlocutory judgment in favor of the three defendants would be embodied in the final judgment to be rendered in the suit.

In his application for writ of mandamus the plaintiff-relator in Alexander urged as the basis for granting the application that: “ ‘It is the established law in this state that there can be only one final judgment in any cause; when the trial court on a plaintiff’s motion for new trial grants him a new trial as to one of several defendant joint tort-feasors, the effect of his action is to grant the plaintiff a new trial as to all of the defendant tortfeasors.’ ” Id. at 921. Among the authorities cited to support the proposition was R.C.S. Art. 2211 the rule of which is now contained in Tex.R.Civ.P. 301. The Court of Civil Appeals then cited Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (1938) as support for its decision to deny the application for writ of mandamus. In Co-wart the Commission of Appeals expressly sanctioned the action of the trial court in granting a new trial as to one defendant while entering an interlocutory judgment for the other defendant based upon an instructed verdict in its favor. After the second trial as to the one defendant the trial court rendered judgment in favor of the plaintiff as against that defendant, and the interlocutory order in favor of the other defendant was made final.

The court in Alexander then stated that the jury’s verdict acquitted three of the defendants of any liability and that no good reason appeared for again trying the issues as between plaintiff and them. We note that although the trial court in Alexander v. Meredith, supra, expressly stated that modification of the judgment caused part of the judgment to be made interlocutory, and the trial court in the instant case made no express statement as to the interlocutory nature of the judgment as to the Bank and Pitman, the fact remains that the order was interlocutory, and we so stated in our former opinion.

Under the rule applied in Alexander v. Meredith, based upon the holding in Cowart, upon the determination in a new trial of the rights as between relator and defendant Thomas, the interlocutory order as to the Bank and Pitman will be merged in the final judgment in the cause. Appeal as to all or any part of the judgment can occur after final judgment is rendered by the trial court. H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.1963); Lubell v. Sutton, 164 S.W.2d 41 (Tex.Civ.App. — Texarkana, 1942, writ ref’d). Also, see Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959); Transport Insurance Company v. Wheeler, 420 S.W.2d 635 (Tex.Civ.App. — Houston 1957, writ ref d n. r. e.).

In support of its contention that new trial granted as to one defendant necessarily requires new trial as to all defendants, the relator cites the following cases: Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465 (1887); Kline v. Power, 114 S.W.2d 617 (Tex.Civ.App. — Fort Worth 1938, no writ); St. Louis, S. F. & T. Ry. Co. v. Smith, 99 S.W. 171 (Tex.Civ.App. — 1906, writ ref’d); Shannon v. D. J. Shrecengost Co., 291 S.W. 928 (Tex.Civ.App. — El Paso 1927, no writ); Texas Cities Gas Co. v. Dickens, 133 S.W.2d 810 (Tex.Civ.App. — Waco 1939, no writ). By reason of significant factual distinctions existing between such cases and the instant case, we do not agree that the holdings in such cases compel the result here sought by the relator.

In Wootters v. Kauffman, supra, the Supreme Court stated, broadly, . .a new trial as to one is a new trial as to all, . .” The facts in Wootters are unlike the facts in the instant case in that defendant, Kauffman, for whom judgment was first entered in the trial court, entered an appearance in the second trial, in which final judgment was entered as to all defendants. On appeal from the second trial Kauffman urged that the first judgment entered was conclusive as to his rights. It was within this context that the Supreme Court held that a continuance as to one defendant is a continuance as to the others. To hold otherwise, the Court said, “. would be ... to deprive appellants of all relief for any errors that may have been committed by the court below upon either trial.”

In Kline, the court apparently considered the significance of the principal-agent relationship of the defendants as creating an interdependence with respect to the liability asserted against them by the plaintiff. In Shannon, the suit was upon a single contract between seller and buyer where a new trial had been granted as to the cross-action and denied as to the principal action. In such case where the rights of the parties were to be determined under a single contract it does not appear that partial new trial would have been proper. The courts in Texas Cities Gas Co. v. Dickens and St. Louis, S. F. & T. Ry. Co. v. Smith made express reference to the non-severability of the suits. The court in the latter of these two cases cites Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531 (1888) in which the Supreme Court held that in cases of trespass to try title, where each of a number of defendants sued jointly claim only a specified part of an entire survey of land, new trial may be granted as to some defendants though not as to others. The court in St. Louis, S. F. & T. Ry. Co., supra, distinguished the facts in that case from the facts in Boone v. Hulsey by observing that not only could the plaintiff in Boone have brought a separate suit against each defendant, but also that, after the suit was instituted, each defendant or set of defendants "might have claimed a severance and had a separate trial and judgment. The action brought by the plaintiff in the St. Louis, S. F. & T. Ry. Co. case was single with no right of severance existing in any of the defendants. The judgment of the trial court was held to be indivisible and setting aside part of the judgment operated to vacate it entirely. Thus, from the holding of the Supreme Court in Boone v. Hulsey, supra, we find a recognition of the power of a trial court to grant a partial new trial in certain instances, i. e., separate causes of action which were jointly tried can be separated for new trial. Also, see Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139, at 144 (1950).

We note that the potential loss of right of appeal sought to be remedied by the holding of the court in Wootters v. Kauffman, supra, should not be considered a factor in the instant case. The relator here will not be deprived of his right to assert the errors that may have occurred in the trial as to defendants Bank and Pitman, or that may occur in the trial as to defendant Thomas.

If an appeal be brought from the final judgment of the trial court in this case, two records may be filed with the Court of Civil Appeals for review, depending upon the identity of the parties on appeal. An appeal involving relator and defendants Bank and Pitman would be based upon the record of the first trial; an appeal involving relator and defendant Thomas would be based upon the record of the second trial. In the case of Meeks v. Cowart, 84 S.W.2d 845, 846 (Tex.Civ.App. — San Antonio 1935), aff’d, Cowart v. Meeks, supra, involving an analogous situation, the Court of Civil Appeals recognized the consideration on appeal of the record from two trials:

“The records of both trials have been filed herein and it is obvious that the appeal taken by Meeks is based upon the record on the second trial, while the appeal taken by the Cowarts is based upon the record made at the first trial;

In this case, it is our opinion that the issues, facts and law applicable to determine the rights as between Gault and Thomas are not so interdependent and entwined with those of the Bank and Pitman as to make their presence necessary in a second trial, and that the court did not abuse its discretion in denying the new trial as to the Bank and Pitman and allowing the new trial as to the controversy between Gault and Thomas. Cantu v. Casas, 265 S.W.2d 175 (Tex.Civ.App. — San Antonio 1953, writ ref d n. r. e.); 4 McDonald, Texas Civil Practice § 18.21 (1971). In the instant case the three defendants are distinct and their causes severable, although they were joined in a single action. Indeed, relator recognizes that the three causes are separate and distinct causes of action and could have been filed and tried separately.

It is well established that matters regarding the granting or denial of motions for new trial and with respect to severance or non-severance of separate causes are proper subjects for the trial court’s discretion. It is our opinion that mandamus will not lie to require the trial court to grant a new trial as to all defendants. This is a matter in which the trial court has exercised its judicial discretion that will not be disturbed on appeal except upon a showing of manifest abuse of such discretion. See City of Perryton v. Boyer, 423 S.W.2d 170 (Tex.Civ.App. — Amarillo 1968, mandamus overruled); 41 Tex.Jur.2d New Trial § 3, at 29; Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961); 1 Tex.Jur.2d Actions § 69, at 594. A Court of Civil Appeals is not authorized to issue a writ of mandamus to compel a trial court to do any act which is discretionary on the part of such court. Comet Aluminum Company v. Dibrell, 452 S.W.2d 32 (Tex.Civ.App. — Houston [14th Dist.] 1969, no writ); Prince v. Peurifoy, 396 S.W.2d 913 (Tex.Civ.App. — Dallas 1965, no writ).

For the reasons above stated, we deny the application for writ of mandamus and refuse the writ.


author: JONES, Justice.

text:
    Miles PUCKETT, Appellant, v. Luther Dean DUNN, Administrator of the Estate of Reverend Noah Puckett, Appellee.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    Eugene C. Rice, Paintsville, for appellant.
    Walter W. Turner, Mann & Turner, Sal-yersville, for appellee.
   JONES, Justice.

Miles Puckett appeals from an order of the trial court that dismissed his complaint for failure to state a claim on which relief could be granted.

The sole issue presented on appeal is the propriety of the trial court’s order. In order to resolve the issue, it is necessary to detail the pertinent portions of the complaint.

Miles alleged in his complaint that Dunn, the administrator of Reverend Noah Puckett, offered for sale at public auction the estate of Reverend Puckett. The notice of sale filed with Miles’ complaint appeared in a local newspaper and is as follows:

“NOTICE OF SALE
THE REV. NOAH PUCKETT FARM AT LAKEVILLE, KENTUCKY
I will offer for sale to the highest and best bidder the farm owned by Rev. Noah Puckett at public auction on Saturday, April 28, at 10:00 a. m. The sale will be conducted at the said premises. This farm consists of 39 acres more or less, one dwelling house and one tobacco barn. It also has a good tobacco base and pasture.
The terms of sale will be $1,000 down and remaining balance due in 30 days or upon delivery of deed.
Luther Dean Dunn, Administrator of the estate of Rev. Noah Puckett.”

Miles further alleged that the sale was held as advertised and that he was not only the highest and best bidder, but was also the only bidder. He admits, however, that his brother Robert bid the sum of $8,000. He states also that Robert was under the influence of intoxicants and that Dunn knew Robert Puckett was not capable of making a bid.

In the concluding paragraph of the complaint, Miles demanded the trial court to enter an order directing that his bid be the highest and best bid given at the auction of April 28, 1973. He sought also that the trial court order Dunn to deliver a deed for the property that he contends he purchased. Miles also moved the trial court to issue an order to restrain Dunn from any further action toward offering the property for sale. In the alternative, he demands that in the event Dunn fails to accept his bid, or that the trial court should rule against him, that the court require Dunn to recover from his brother Robert the difference between his bid of $8,000 and the $5,000 bid that he submitted.

Counsel for both parties have favored this court with briefs dealing solely with the technicalities of the complaint, and whether the complaint stated a claim upon which relief could be granted. The real crux of the problem, as this court views it, is whether a sale took place on April 28, 1973.

“A sale at auction, like every other sale, must have the assent, expressed or implied, of both seller and buyer. An announcement of an auction or the act of putting property up for sale thereat, does not constitute an offer to sell capable of acceptance by the making of a bid. An advertisement of an auction is not an offer to sell which becomes binding, even conditionally, on the owner when a bid is made. Rather, an announcement that a person will sell his property at public auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received. (Emphasis ours.) It is a mere invitation to those attending the sale to make offers by bids. The contract becomes complete only when the bid is accepted, this being ordinarily denoted by the fall of the hammer. These common-law principles are adopted by both the Uniform Sales Act and the Uniform Commercial Code.” 7 Am.Jur.2d § 20.

This court has said,

“It is, of course, elementary that under the Civil Rules a complaint need only give fair notice of a cause of action and the relief sought. Clay, 6 Kentucky Practice, Rule 8.01, Note 3 et seq. But still it must disclose a cause of action. Where a plaintiff chooses to state his complaint in full detail, in lieu of the simple form sufficient under the Civil Rules, and neither its contents nor the inferences reasonably to be drawn from them will support his claim for relief, a motion to dismiss serves substantially the same purpose as a motion for summary judgment and should be sustained.” (Emphasis ours.) Security Trust Co. v. Dabney, Ky., 372 S.W.2d 401 (1963).

It is the opinion of this court that the trial court did not err in dismissing the complaint simply because it did not disclose a claim upon which relief could be granted.

The judgment is affirmed.

All concur.

      . Miles alleged that his bid was $5,000.


author: VANCE, Commissioner.

text:
    EPHRAIM McDOWELL HOSPITAL, INCORPORATED, Danville, Kentucky, Appellant, v. Celia MINKS and W. H. Minks, her husband, Appellees.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    James F. Clay, Sr., Clay & Clay, Danville, for appellant.
    Cabell D. Francis, Stanford, for appellees.
   VANCE, Commissioner.

This is an appeal from a judgment obtained by the appellees against the appellant, Ephraim McDowell Hospital, Incorporated, based upon the alleged failure of the hospital to provide reasonable care for the appellee, Celia Minks.

Celia Minks was admitted to the hospital for various tests, one of which required the administration of a barium enema. At 7:00 P.M. on the evening before the test in question, Mrs. Minks was given two and one-half ounces of castor oil, a routine procedure prior to the administration of barium enemas, and at 9:00 P.M. she was given carbital, one and one-half grains. Carbital is a sleeping pill and was given on the directions of the attending physician.

Some time during the night Mrs. Minks attempted to go to the bathroom unassisted although a device to signal for a nurse’s assistance was available to her. The bathroom was located in her room just inside the doorway but she proceeded past the bathroom out into the hallway and fell down a flight of stairs. She sustained a fracture of both legs in the fall.

The hospital moved for a directed verdict at the close of the plaintiff’s case and again at the close of all of the evidence upon the authority of Miners Memorial Hospital Association of Kentucky v. Miller, Ky., 341 S.W.2d 244 (1960). The motions were overruled and the jury returned a verdict in favor of appellees upon which judgment was entered. The hospital moved for a judgment notwithstanding the verdict which was overruled. The hospital appeals.

It is our conclusion that the hospital was entitled to a directed verdict, and having failed to obtain it, a judgment notwithstanding the verdict. The evidence of negligence was insufficient to submit the case to the jury.

We regard Miners Memorial Hospital Association of Kentucky v. Miller, supra, as controlling. In Miners Memorial a patient fell while attempting to go to the bathroom unassisted. She had undergone a surgical procedure requiring anesthesia in the morning hours. After the surgery she spent thirty minutes in the recovery room and was returned to her ward. Her husband remained with her for approximately three hours during which time he assisted her to the bathroom twice. After his departure she attempted to go to the bathroom unassisted. She fell and was injured.

We held that a patient admitted to a hospital operated for private gain is entitled to such reasonable care and attention for his safety as his mental and physical condition, known or discoverable by the exercise of ordinary care, may require. That duty however does not require the performance of every act which the most cautious and skillful would employ.

Under the factual situation in Miners Memorial we said that there was no evidence of any circumstances from which it could reasonably be said that the hospital was under a duty to have a special nurse in the room with Mrs. Miller and that the mere fact that the accident happened was no indication of negligence on the part of the hospital.

Likewise there is nothing in the evidence in this case from which the hospital could reasonably be held to anticipate that the administration of one and one-half grains of carbital would cause Mrs. Minks to become confused or disoriented. True, it was expected to induce sleep but hospitals are not required to maintain constant guard over sleeping patients.

The same medication was administered to Mrs. Minks on the night before her injury with no known untoward effects. Her physician testified that the dosage given to her was a normal adult dosage which was intended to induce sleep but which could not be reasonably calculated to cause an adult patient to become unaware of what she was doing. There was no evidence to the contrary.

Vick v. Methodist Evangelical Hospital, Inc., Ky., 408 S.W.2d 428 (1966), cited by appellee, is distinguishable on the facts because in Vick the quantity of sedatives and drugs administered was such as to place upon the hospital the duty of anticipating that the patient was likely to be in such a confused state as to require closer nursing attention than was provided. The amount of sedative administered here was not such as to bring it within the rationale of Vick.

The judgment is reversed with directions that a new judgment be entered dismissing appellees’ claim.

All concur.