author: CARNEY, Presiding Judge.

text:
    Lloyd W. PATTERSON, Plaintiff-Appellee, v. PROFESSIONAL ADJUSTMENT SERVICE, INC., and Park View Hospital, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    Feb. 6, 1976.
    Certiorari Denied by Supreme Court June 28, 1976.

      Charles C. Morrow, N. E. Pepper and Morrow, Pepper & Albers, Nashville, for plaintiff-appellee, Lloyd W. Patterson.
    Clark Tidwell, Nashville, for defendant-appellant, Professional Adjustment Service, Inc.
    Ira E. Parker, III, Nashville, for defendant-appellant, Park View Hospital.
   CARNEY, Presiding Judge.

Upon the trial below the jury returned a verdict in favor of the Plaintiff, Lloyd W. Patterson, for $25,000 compensatory damages against the Defendants-Appellants, Professional Adjustment Service, Inc. and Park View Hospital, Inc. The jury failed to return a verdict for punitive damages.

The Defendant, Professional Adjustment Service, Inc., is a collection agency, a corporate entity engaged in the collection of delinquent accounts and indebtednesses in the Nashville area. The Defendant, Park View Hospital, Inc., is a private hospital for profit operated by the Hospital Corporation of America engaged in rendering professional hospital care to citizens in the Nashville area. The present litigation arises out of the collection by garnishment of a balance of $55.00 owed by the Plaintiff Lloyd Patterson to Defendant Park View Hospital, Inc. through the Defendant collection agency, Professional Adjustment Service, Inc.

His Honor the Trial Judge submitted the issue of Defendants’ liability to the jury on two different theories: (1) that the Defendants intentionally and wrongfully harassed the Plaintiff in his right of privacy and inflicted anguish and distress upon him and caused the issuance of an unlawful execution on his wages; and (2) that the Defendants engaged in unlawful practice of law. The Defendants offered no proof and the case went to the jury on Plaintiffs proof only.

Both Defendants have appealed and assigned errors.

When the Plaintiff’s wife returned from a surgical operation in the Defendant Hospital, there was a balance on her hospital bill over and above medical insurance of approximately $75.00. After some communication between the Defendant Hospital and Mrs. Patterson, the account was turned over to the Defendant Professional Adjustment Service, Inc. for collection. The Plaintiff had been out of work. He himself had been ill with a heart attack. The Plaintiff and wife owed several bills in addition to the indebtedness to the Defendant Hospital. Mrs. Patterson was able to pay two $10.00 payments on the account.

An employee of the collection agency called the Patterson home by telephone. Mrs. Patterson answered and refused to call her husband to the phone because his doctor had told him not to be worried with bill collectors. The employee of the collection agency tried to get her and/or Mr. Patterson to agree to pay $15.00 per month on the bill. Mr. Patterson told Mrs. Patterson to tell the employee “No” which she did. Thereupon, the employee of the collection agency told Mrs. Patterson in a somewhat angry voice, “I know how to get my money,” or words of similar import and hung up the phone. Mr. and Mrs. Patterson understood that he would shortly thereafter file suit on the account which was done. Mr. Patterson did not appear and default judgment was taken against him in November 1973 in the General Sessions Court of Davidson County, Tennessee. Plaintiff Patterson went back to work as a foreman for his employer, Overby Construction Company in Williamson County, Tennessee. An execution by garnishment was levied against his wages in December 1973 but very little money was collected.

On February 14,1974, a second execution was issued by the Clerk of the General Sessions Court of Davidson County and delivered to the sheriff of Davidson County, Tennessee. The sheriff’s office of Davidson County prepared a garnishment and forwarded the same to the General Sessions Court in Williamson County, Tennessee, for service upon the employer of the Plaintiff.

On March 1,1974, the Clerk of the General Sessions Court of Davidson County received from the General Sessions Court of Williamson County the proceeds of the second garnishment which paid the entire balance of the judgment plus costs. This money was retained by the Clerk of the General Sessions Court of Davidson County until March 14,1974, when it was paid over to the Defendant collection agency along with the other collections against other judgment debtors.

The collection agency had a practice of seeking executions on judgments once each month. About March 7, 1974, the Defendant collection agency, not having been told by the Clerk that the judgment had been paid in full, requested the Clerk of the General Sessions Court of Davidson to issue another execution on the judgment and deliver the same to the sheriff of Davidson County for preparation of garnishment.

Through oversight, the Clerk of the General Sessions Court also failed to notice that the judgment had, in fact, been paid in full on March 1,1974, and issued another execution. This execution was delivered to the sheriff of Davidson County who in turn prepared the usual garnishment thereon and delivered it to the Clerk of the General Sessions Court of Williamson County for service on the employer of the Plaintiff. The employer realized that the judgment had been paid in full and called the collection agency. The employer was told by the collection agency to tear up the garnishment. Instead, the employer paid the garnishment to the Clerk of the General Sessions Court or sheriff of Williamson County by check. His check was returned to him uncashed about seven days later. The next day, after the employer paid the garnishment, the employer told Plaintiff that the invalid garnishment had been levied upon him. The only pecuniary loss Plaintiff suffered from the third garnishment was the delay of about one week in receiving $58.89 salary.

Plaintiff testified that he was generally let down after the issuance of the third garnishment; that he felt badly; and about two months later he sustained a very severe heart attack requiring surgery. While he would not say that the garnishment caused his heart attack, at the same time he did not think it did him any good.

Plaintiff averred in his complaint that the Defendant Professional Adjustment Service, Inc. attempted to collect the small balance through harassment, coercion, and intimidation of the Plaintiff; that the Defendant Hospital knew and approved of such actions.

By amended complaint the Plaintiff averred that the Defendant Park View Hospital either knew or should have known that Professional Adjustment Service, Inc. uses unusually harsh tactics in the collection of bills and further knew or should have known that Professional Adjustment Service, Inc. engaged illegally and improperly in the practice of law by filing suits for others in General Sessions Court and by further issuing execution by garnishment and other process of law through the General Sessions Court as a regular practice; and that the collection agency regularly filed suits for and issued executions in this manner in the name of Park View Hospital, Inc. and therefore, Park View Hospital, Inc. ratified all of the acts of said Defendant collection agency.

Assignment of error No. I of both Defendants Professional Adjustment Service and Park View Hospital is to the effect that His Honor the Trial Judge erred in overruling the Defendants’ motion for a directed verdict made at the conclusion of the Plaintiff’s evidence. These assignments of error must be sustained. The Hospital Corporation of America had a legal right to turn over its delinquent account against Plaintiff Patterson to the Defendant collection agency, Professional Adjustment Service, Inc. The collection agency had a legal right to accept the account for collection. It was not an invasion of privacy nor outrageous conduct for the employee of the collection agency to request or beg or demand that Mr. and Mrs. Patterson agree to pay the indebtedness at the rate of $15.00 per month. It was not outrageous conduct nor an invasion of privacy for the agent of Defendant collection agency to tell the wife of the Plaintiff that he was going to bring suit on the indebtedness if they did not agree to pay at the rate of $15.00 per month. It was not invasion of privacy nor outrageous conduct for the Defendant Park View Hospital to reduce the claim to judgment and to collect the judgment by execution.

The uncontradicted proof of the Plaintiff’s witness is that when a Clerk in the General Sessions Court of Davidson County issued the third execution on March 7,1974, the Clerk failed to notice that the judgment on which the execution was being issued had been paid in full and that it was the error of an employee in the Clerk’s office of the General Sessions Court of Davidson County which resulted in the unlawful garnishment being levied on the Plaintiff’s wages in March 1974. It is uncontradicted that at the time the hospital’s agent asked for the issuance of the third execution, the funds collected on the second garnishment were in the hands of the Clerk of the General Sessions Court of Davidson County and had not been paid over to the hospital nor to its agent, the collection agency, and neither the hospital nor the collection agency knew that said funds had, in fact, been collected and the judgment had, in fact, been satisfied. After the employee of the collection agency learned that the judgment was, in fact, paid and that the garnishment was erroneously issued, no effort was made by the collection agency to collect upon the third garnishment and Plaintiff’s employer was told to disregard the garnishment even before the Plaintiff learned that the garnishment had been issued. The evidence all supplied by the Plaintiff is insufficient to establish outrageous conduct as described in Medlin v. Allied Investment Co., (1966), 217 Tenn. 469, 398 S.W.2d 270. Nor is there evidence of unlawful invasion of the Plaintiff’s privacy as described in Langford v. Vanderbilt University, (1956), 199 Tenn. 389, 287 S.W.2d 32. A directed verdict in favor of each Defendant should have been granted on motions made at the conclusion of the Plaintiff’s proof.

With reference to the alleged offense of illegally practicing law, the proof shows that Professional Adjustment Service collects a large number of accounts for Park View Hospital, Inc.; that the regular procedure is to send the debtor a letter notifying him that the agency holds the account for collection. After seven days, another letter is sent. If no reply is had, they send a third letter. If no reply is had from the third letter, the account is turned over to a collector of the agency who talks to the debtor by telephone. The collector tries to get a promise to pay from the debtor and marks the account forward at thirty-day intervals seeking most of the time to get the debtors to start paying semi-weekly or monthly on the bills. If it becomes evident that the debtor is not going to pay the account without suit and if the collection agency recommends suit to Park View Hospital, then the Park View Hospital advances the necessary suit or filing costs. No suit is filed without the permission of Park View Hospital. Suits are usually filed in the General Sessions Court of Davidson County. A summons is prepared by employees of the collection agency under the direction of an attorney whose name appears on the face of the summons when it is filed with the General Sessions Court.

His Honor the Trial Judge was in error in submitting to the jury the question of whether or not the Defendant collection agency was guilty of practicing law in violation of T.C.A. Section 29-303. His Honor read to the jury the provisions of T.C.A. Section 29-303 defining the practice of law or “law business” and left it to the jury to determine whether or not the acts of the Defendant collection agency constituted unauthorized practice of law within the meaning of said statute and whether or not such unauthorized practice of law, if so found by the jury, was a cause of the Plaintiff’s injuries and damages, that is, his mental distress.

The proof in the case at bar shows that oftentimes the Defendant collection agency did fill in blanks furnished by the Clerk of the Court but on the occasion of the third execution, the subject of the present suit, the Clerk or his deputy filled out the execution, sent it to the office of the sheriff of Davidson County where the garnishment was prepared without any assistance from the collection agency. We pretermit the question raised by the Appellants that the Plaintiff did not have standing to litigate the question of whether or not the Defendant collection agency did on occasions perform acts which constituted an unauthorized practice of the law. We only hold that in this case there was no evidence of unauthorized practice of law and the issue should not have been submitted to the jury. See the case of Haverty Furniture Co. v. Foust, (1939), 174 Tenn. 203, 124 S.W.2d 694, where the Court discussed T.C.A. Section 29-303.

The Plaintiff did not claim any monetary or pecuniary damages but only damages for “mental anguish, embarrassment and humiliation.” The complaint prayed for $50,-000 compensatory damages and $50,000 punitive damages. In his argument to the jury, Plaintiff’s attorney suggested an award of $10.00 actual damages for the humiliation and harassment from the telephone call to Mrs. Patterson, $10.00 for the actual damages resulting from the illegal third garnishment and $25,000 punitive damages. The jury, after a second charge by the Trial Judge on punitive damages, failed to award punitive damages but brought in a verdict of $25,000 all for compensatory damages.

Over the objection of the Defendant Hospital, a witness testified that he did not know the net worth of the owner of the Defendant Park View Hospital, namely the Hospital Corporation of America, but that the Hospital Corporation of America is one of the world’s largest corporations operating a chain of privately owned hospitals. For the completeness of the record we state that if we are wrong in holding that one or both of the Defendants should have been dismissed on motion for directed verdict at the conclusion of Plaintiff’s proof, the verdict in the case still should be set aside because it is so excessive as to indicate unaccountable caprice on the part of the jury. Assignment of error No. IV is sustained.

The other assignments of error not herein expressly treated are pretermitted. Judgment will be entered in this Court dismissing the Plaintiff’s suit against both Defendants and taxing the costs in the Court below and in this Court to the Plaintiff.

MATHERNE and NEARN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Harry CALCUTT, Creditor against the Estate of Celia C. Motley, Claimant-Appellee-Appellant, v. The FIRST NATIONAL BANK OF MEMPHIS, Executor of the Estate of Celia C. Motley, Deceased, Defendant-Appellant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    May 4, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      William W. Dunlap, Jr., Memphis, for Harry Calcutt, Creditor.
    William F. Kirsch, Jr., Robert N. White, Samuel H. Mays, Jr., and Heiskell, Donel-son, Adams, Williams & Kirsch, Memphis, for First National Bank.
   CARNEY, Presiding Judge.

The Probate Judge sustained the claim of Harry Calcutt, Jr. to 32 shares of stock in West Tennessee Soya Mill and 22 shares of stock in Dyersburg Cotton Products Corporation together with all stock dividends which the decedent, Mrs. Celia C. Motley held at her death on June 22, 1973. The Court found that Mrs. Celia C. Motley, aunt of the claimant, Harry Calcutt, Jr., had received the stock from her father, N. W. Calcutt, under an express oral agreement that she would keep them as life tenant only and that she would ultimately give the shares of stock to her nephew, Harry Cal-cutt, Jr., by gift or by will. N. W. Calcutt died July 6,1949. The First National Bank of Memphis, Executor of the estate of Mrs. Motley, has appealed from the Court’s finding that there was an oral trust made in 1945 by Mrs. Motley.

The Probate Judge denied another claim of Harry Calcutt, Jr. against the estate of his aunt, Mrs. Celia C. Motley, for $5,200 plus interest from February 1950. Claimant contended that his grandmother, Mrs. Celia Calcutt, died intestate and left an estate of approximately $15,000 which the decedent, Mrs. Celia C. Motley, appropriated to her own use and that he was entitled to one-third under the Statutes of Distribution. He further contended that the Statutes of Limitations did not apply because the decedent falsely informed him shortly after his grandmother’s death that his grandmother left no estate. He has appealed from the order disallowing his claim.

For many years prior to his death in July, 1949, N. W. Calcutt was a prominent businessman in Dyersburg, Tennessee. He had three children: (1) The deceased Mrs. Celia Calcutt Motley; (2) Carney C. Calcutt; and (3) H. C. Calcutt, father of the claimant, Harry Calcutt, Jr. In 1918, N. W. Calcutt was president of a company engaged in making barrel staves and headings. His son, Harry Cecil Calcutt, was secretary-treasurer of the corporation. Harry C. Cal-cutt was drowned in 1918 at or about the time the claimant, Harry C. Calcutt, Jr., was born. The mother of the claimant, Mrs. Mary Ferguson Calcutt, remarried and moved to Traverse City, Michigan, where the claimant, Harry C. Calcutt, was reared. Carney C. Calcutt, the second son of N. W. Calcutt, continued to live in Dyersburg, Tennessee, where he was engaged in various financial ventures, both alone and in partnership with his father, N. W. Calcutt. Mrs. Celia Motley, the daughter, lived in Memphis, Tennessee.

During the depression years of 1929 through 1935, N. W. Calcutt experienced financial difficulties. By 1939, the financial affairs of N. W. Calcutt were much improved. On June 3, 1939, he wrote his former daughter-in-law, mother of his grandson, the claimant, Harry C. Calcutt, Jr., sending her $100.00 of which amount $50.00 was from her farming interests and $50.00 was interest. He gave a report to his daughter-in-law about a gasoline service station which the former daughter-in-law owned in the Dyersburg area. Mr. Calcutt also accepted an offer which Mrs. Mary Ferguson Calcutt Larsen had previously made to settle for $10,000 cash an indebtedness of approximately $14,000 owed by N. W. Calcutt to her and/or her son, Harry C. Calcutt, Jr., arising out of Harry C. Cal-cutt’s interest in the Stave Mill property in the Dyersburg area.

On June 27, 1939, N. W. Calcutt, Mrs. Mary Ferguson Larsen, former wife of Harry C. Calcutt, and the claimant, Harry C. Calcutt, Jr., entered into a written contract which recited that N. W. Calcutt was indebted to claimant, Harry C. Calcutt, Jr., and his mother in various sums evidenced by promissory notes; that in consideration of $10,000 cash they did release N. W. Cal-cutt from all amounts due to either of them. The contract concluded with the following three pertinent paragraphs:

“It is further agreed that in the acceptance of the above amount, same shall be in full and complete settlement and compromise of all claims and obligations of any kind or character, that either party may have, either in the past, present, or future, against N. W. Calcutt or Mrs. Celia Calcutt or either of their estates. Except such voluntary bequest as they may make in their wills.
“Said Party of the Third Part does further release the Party of the First Part from any liability whatsoever as surety on a certain guardian bond in the County Court of Dyer County, Tennessee wherein Mary Ferguson (Calcutt) Larsen qualified as his guardian.
“Said Party of the Third Part does hereby further release Party of the Second Part from making a sworn itemized guardian settlement to said County Court of Dyer County, Tennessee.”

On October 8, 1945, N. W. Calcutt executed his will naming his daughter, Mrs. Celia Calcutt Motley, executrix without bond. He devised all his property, real, personal, and mixed to his wife, Celia Cal-cutt, for and during her natural life with remainder to his daughter, Celia C. Motley. The will closed with the following paragraph:

“I have heretofore made advances and discharged liabilities for my other children, and for this reason, I make the dispositions herein set out.”

Harry C. Calcutt, Jr. and Carney C. Cal-cutt, the grandson and son, were not mentioned in the will by name. His daughter, Mrs. Celia C. Motley, qualified as executrix. The record does not show what advances he had made nor what liabilities he had discharged for his sons, Harry C. Calcutt and Carney C. Calcutt.

His widow, Mrs. Celia Calcutt, died without a will in February 1950. N. W. Calcutt left an estate valued at approximately $145,000 consisting of real and personal property. Final settlement of Mrs. Celia C. Motley is not shown in this record. Some of the estate left by N. W. Calcutt may or may not have included property conveyed to him by his son, Carney C. Calcutt, prior to N. W. Calcutt’s death. In October 1945, his son, Carney C. Calcutt, was involved in litigation with one B. Frank Craddock over some joint business transactions. The Tennessee Court of Appeals rendered judgment in favor of Craddock against Carney Cal-cutt for $111,000. Shortly before this judgment was rendered, Carney Calcutt, the son, transferred some or possibly all his property to his father, N. W. Calcutt, in order to prevent the judgment creditor, B. Frank Craddock, from reaching these assets.

In August 1956, Carney Calcutt reached an agreement with his judgment creditor, B. Frank Craddock, and obtained a full release from Craddock. On June 22, 1973, Mrs. Celia C. Motley died testate in Shelby County, Tennessee, leaving no part of her estate to her nephew, the claimant, Harry C. Calcutt, Jr., and no part to her brother, Carney Calcutt.

On December 19, 1973, Carney C. Calcutt filed a claim against the estate of Mrs. Celia C. Motley asserting that he was entitled to one-half of the property which his sister, Celia C. Motley, received under the will of their father, N. W. Calcutt, under an oral trust and that he was entitled to one-third of the property allegedly received by Mrs. Celia C. Motley from the estate of their mother. The claims of Carney C. Cal-cutt have been litigated and the Probate Court ruled adversely to Carney C. Calcutt. He has not appealed.

On December 27,1973, the claimant, Harry C. Calcutt, Jr., filed the same claims against the estate of Celia C. Motley as Carney C. Calcutt filed. He insisted that he was entitled to one-half of the assets received by Celia C. Motley under the will of N. W. Calcutt on the theory that he was the beneficiary of an oral, secret trust; that his aunt, Mrs. Celia C. Motley, agreed to hold the property only for Mrs. Motley’s lifetime and give one-half the N. W. Calcutt estate to Harry Calcutt by gift or will. On the same day, the claimant, Harry C. Cal-cutt, Jr., filed a claim against Mrs. Celia C. Motley’s estate alleging he, too, was enti-tied to receive one-third of the estate of his grandmother, Mrs. Celia Calcutt, which Mrs. Celia Motley allegedly had appropriated.

APPEAL OF FIRST NATIONAL BANK, EXECUTOR

The decision of the Probate Judge awarding the stock to Harry C. Calcutt, Jr. is predicated entirely upon the uncorroborated testimony of Carney C. Calcutt. Carney C. Calcutt testified that in 1945 N. W. Calcutt, Celia C. Motley, and Harry Calcutt, Jr. participated in a family conversation at which time they agreed that a grain elevator would be transferred to Mrs. Celia C. Motley and the remainder of the N. W. Calcutt estate was to be divided equally between Carney C. Calcutt and Harry C. Calcutt, Jr. after the death of their mother, Mrs. Celia Calcutt and the death of Celia C. Motley. Carney C. Calcutt also testified that in late 1945 there was a second conversation among the parties, that is, N. W. Calcutt, his sister, Celia C. Motley, and his nephew, Harry C. Calcutt, Jr. The original agreement was modified so that Celia C. Motley agreed to hold in trust for Harry C. Calcutt, Jr. stock owned by N. W. Calcutt in four companies, namely, Dyersburg Cotton Products, Tennessee Soya Mill, Lake County Oil Mill, and the Sheraton Corporation, in lieu of the one-half of the residue of the N. W. Calcutt estate.

The Trial Judge permitted an amendment to the pleadings after the conclusion of the trial to permit Harry C. Calcutt, Jr. to claim only the stock instead of one-half of the N. W. Calcutt property. The Court disallowed the claim for the Lake County Oil Mill stock and Sheraton stock because the Lake County Oil Mill was defunct and the Sheraton stock had been sold.

The claimant, Harry C. Calcutt, Jr., is a practicing attorney of the State of Michigan. He attended Amherst College from 1935 through 1937. He received his A.B. degree at the University of Michigan in 1939. He served in the U.S. Marine Corps in World War II from 1941 to 1946. He earned and received his law degree from the University of Michigan in 1947 having attended Law School while in the Marine Corps. He was named Chairman of the Board of Northwestern Savings and Loan in Traverse City in 1955 and Chairman of the Board of State Savings Bank of Traverse City in 1964.

When shown the written contract of date June 27, 1939, he expressed doubt that the signature “Harry Cecil Calcutt” was genuine though it was notarized before R. E. Rice, Notary Public of Dyer County, Tennessee. He said that his birth certificate showed his name as Harry Calcutt, with no middle name, and so did his records in the Marine Corps. He said he was unable to find his birth certificate. He was shown two records published by Amherst College. One was dated 1937 and the other dated 1973. Both listed his name as Harry Cecil Calcutt.

Harry C. Calcutt, Jr. testified as a witness in support of Carney C. Calcutt’s claim against the Motley estate that he, Harry C. Calcutt, Jr., was present at the time his aunt, Mrs. Celia Motley agreed to deliver to his uncle, Carney C. Calcutt, some of the N. W. Calcutt property if and when the claim of Craddock was settled. He was in law school at that time. He conceded that he was not present at the time Carney C. Calcutt allegedly made the new agreement with the deceased Celia Motley modifying the former agreement so as to give the claimant, Harry C. Calcutt, Jr., certain specific stocks rather than one-half of the net estate. He had never heard of any such agreement until Carney C. Calcutt so testified on the trial of Harry Calcutt Jr.’s claim against the estate. His Honor the Probate Judge accepted the testimony of Carney C. Calcutt as establishing an oral trust in favor of the claimant for the stocks mentioned by Carney C. Calcutt.

The First National Bank, as Executor, has filed four assignments of error all of which attack the holding of the Trial Judge that there was a trust in favor of the Claimant, Harry C. Calcutt. We find no merit in the Bank’s contention that the compromise agreement of $10,000 executed on June 27, 1939, barred the rights of the claimant to recover under a trust theory from the deceased, Celia C. Motley. The alleged trust agreement by Celia C. Motley was made, if at all, in 1945 or later and subsequent to the execution of the release. The release agreement which expressly exempted voluntary bequests by N. W. Cal-cutt and/or wife would also exempt gifts by oral trust.

However, we hold that the Executor’s assignments of error to the finding of an oral trust are sustained. Claimant testified that in 1950 he asked his Aunt Celia about his grandmother’s estate and Mrs. Motley told him that Mrs. Celia Calcutt had no estate. He never asked her about his alleged interest in remainder to the N. W. Calcutt property. Carney C. Calcutt testified that on one occasion after he had settled with B. Frank Craddock, he asked his sister for his part of the N. W. Calcutt property and she refused to give it to him. The date of this alleged conversation is not given.

We hold that the uncorroborated testimony of Carney C. Calcutt is insufficient to establish an oral trust in the property received by Mrs. Motley from her father, N. W. Calcutt. The proof was not clear, cogent and convincing. Hunt v. Hunt, (1935), 169 Tenn. 1, 80 S.W.2d 666; Linder v. Little, (M.S.Tenn.App.1972), 490 S.W.2d 717; Hoffner v. Hoffner, (E.S.1949), 32 Tenn.App. 98, 221 S.W.2d 907.

APPEAL OF HARRY C. CALCUTT, JR. SEEKING TO ESTABLISH A CONSTRUCTIVE TRUST IN THE ESTATE OF HIS GRANDMOTHER, MRS. CELIA CALCUTT

The only proof that Mrs. Celia Cal-cutt had an estate is that First Citizens National Bank in Dyersburg, Tennessee, had a signature card signed by Mr. and Mrs. Calcutt dated January 10, 1940, showing that there was an account in the name of Mr. or Mrs. N. W. Calcutt. The signature card does not give the amount of any joint account. A bank ledger sheet in the name of “N. W. Calcutt” only shows a balance on July 9, 1949, of $12,826.67. Another ledger sheet of the First Citizens National Bank showing an account in the name of “N. W. Calcutt Estate” shows a balance of date June 3, 1952, of $1,729.13. These are the only bank records introduced in evidence. A bank employee testified that all other records had been lost or misplaced and, after diligent search and inquiry, she had been unable to find any more records.

Harry C. Calcutt testified that immediately after his grandmother’s funeral, he asked his aunt, Celia Motley, if his grandmother had any estate and his aunt, Celia Motley, told him that there were no assets in her estate. Carney C. Calcutt testified that in 1951, he was working with an auditor and learned that there were funds in a joint account in the Bank. His mother never drew any funds out of the joint account after his father’s death because she was bedridden, 88 years of age, and incapacitated with a full time trained nurse at her side; that the sister, Celia Motley, drew checks on the account to pay expenses of their mother’s last illness in an approximate amount o'f $2,400.00.

Claimant’s assignment of error is overruled because the proof does not show the amount, if any, in the estate of Celia Cal-cutt at the time of her death in 1950. We pretermit the defense of the Statute of Limitations and laches.

The appeal of claimant, Harry C. Calcutt, Jr., is denied.

A decree will be entered in this Court reversing the decree below in favor of Ap-pellee Harry C. Calcutt, Jr. and dismissing both his claims against the estate of Mrs. Celia Motley, deceased. The claimant, Harry C. Calcutt, Jr., is taxed with the costs in the Court below and in this Court.

MATHERNE and NEARN, JJ., concur.


author:
GREENHILL, Chief Justice. POPE, Justice
      REAVLEY, Justice

text:
    Henry ABALOS, Petitioner, v. OIL DEVELOPMENT COMPANY OF TEXAS, Respondent.
    No. B-5602.
    Supreme Court of Texas.
    Nov. 24, 1976.

      Warren Burnett Associated, Richard J. Clarkson, Odessa, for petitioner.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, S. Tom Morris, Amarillo, for respondent.
   GREENHILL, Chief Justice.

The plaintiff, Henry Abalos, an employee of Ruthco Company, brought suit against the defendant, Oil Development Company of Texas. The suit was for personal injuries sustained by Abalos while working for Ruthco on the defendant’s oil and gas lease. The plaintiff’s hands and arms were caught in the revolving part of a pump used to bring oil to the surface. The pump and its base were being installed by the Ruthco crew at the time of the accident, and it was being run at the request of the foreman of Ruthco’s crew. Abalos realized the danger of working so near the operating pump. His contention is that an employee of the defendant who started the pump at the request of the Ruthco foreman and who was watching the work of the Ruthco crew owed him a duty to warn him, or to stop the pump, particularly under the doctrine of discovered peril.

At the first trial, the district court entered a summary judgment for the defendant. This was reversed by the Court of Civil Appeals, one justice dissenting. 491 S.W.2d 482. We refused the application for writ of error with the notation of no reversible error.

Upon this trial, the district court overruled the motion for summary judgment; and after a trial upon the merits, granted the defendant’s motion for an instructed verdict. The trial court’s judgment also denied the subrogation claim of intervenor, Texas Employers Insurance Co. who apparently had made compensation payments to Abalos as an employee of Ruthco. The Court of Civil Appeals affirmed, one justice dissenting. 526 S.W.2d 604. We affirm.

The defendant oil company owned several oil leases in Yoakum County. Located thereon were many pumping wells. One of its employees, Curtis Ray Morgan, was generally in charge of several of the leases, the pumps thereon, and their engines. The engines which turned the pumps used natural gas for their fuel. Morgan was called a “pumper.”

Someone from the defendant company’s office determined to place a larger pump and a larger base over one of its wells in Morgan’s area. It contracted with Ruthco to remove the old concrete base and pumping unit, and to furnish and install a larger base and pumping unit. The defendant’s pumper, Morgan, did not order the work, and his duties did not include any construction on the leases. There is no evidence that Morgan either told the Ruthco employees what to do, or that he had any authority to do so. Ruthco was an independent contractor.

Ruthco’s crew consisted of a field foreman, Jess Phillips, and three other men including the plaintiff, Henry Abalos. The crew took their orders from Phillips, who said that he and his crew would attempt to correct anything Morgan found to be wrong with the new installation.

Before the accident in question, the pump engine had been shut down and its gas line disconnected. The Ruthco crew, with no employee of the defendant being present, undertook the work. After removing the former concrete base and pump, the crew enlarged the hole in the ground to be occupied by the new prefabricated concrete base. Dirt which was removed was piled nearby. The new base was put in its place by the Ruthco crew which installed and aligned the new pump over the hole.

Ruthco’s remaining duties were to replace the dirt around the new base and to be sure that the base was level and steady. Then the Ruthco crew would replace the dirt with shovels and pack the dirt by stomping it. To determine whether the newly installed base and pump were steady and would remain so, the Ruthco foreman wanted the pump reconnected and started and to run for a period of time.

Phillips, the Ruthco foreman, testified that they were about through with their operations when Morgan, the defendant’s pumper, drove up. Abalos testified that Phillips had hooked up the bridle of the motor. Phillips testified that “we” rigged up the mechanism, the weights, rods and bridle. Phillips testified that without being asked, Morgan connected the gas line. Abalos testified that Phillips told Morgan, “I am ready to start it up,” and to start the engine which operated the pumping unit so that he could determine whether the base and unit were level and steady.

The one cylinder engine had to be started like an “old Model T Ford” — it had to be hand cranked. Phillips testified that these are sometimes hard to start, and that “it is a lot easier for him (Morgan) to start it than us.” While the motor operated on natural gas, gasoline was sometimes necessary to prime or start the engine. Morgan did crank and start the engine. There is a valve to turn the gas supply on or off. Phillips testified it was his practice to ask the pumper to start the engine and that he would have tried to start the motor if Morgan had not. Phillips was asked, at another place in the record, what he would have done if Morgan had refused to start the motor. He said, “Well, I would have called the office and told them they wouldn’t start the engine. We would just have to leave her down.” Abalos testified that he asked Phillips and Morgan not to start the pump. They denied this, and Abalos worked with the pump moving.

As stated, the defendant’s pumper, Morgan, arrived when the Ruthco crew had rigged up the pumping mechanism and was almost, but not completely, finished. He voluntarily hooked up the gas line; and at Phillips’ request, started the motor, and the pump began to operate. Abalos testified that he and the others stood around 2 to 4 minutes “to see if it was going to set level,” —that this was a common practice. Phillips then told them, “Now let’s fill her in.”

Thereupon Phillips, Abalos, and the others began to shovel the dirt back and to stomp it. They had thus worked for 3 or 4 minutes when the accident occurred.

Morgan meanwhile was washing his hands and was preparing to leave to attend to some other duties. He told Phillips that he had to go, that he would throw the motor out of gear, and that Ruthco’s man could throw it back in gear when they were finished. Morgan testified that Phillips said that no, he wanted it to run. This was confirmed by Phillips who testified that thereafter, he paid no more attention to Morgan. Phillips asked Morgan if he wanted to leave the unit pumping when we (the Ruthco crew) are through. Phillips testified that “He (Morgan) said ‘yes.’ So we (Ruthco) left it pumping, or was going to leave it pumping; still pumping while we back filled.” Asked what Morgan was doing while they were working, Phillips testified that all Morgan had to do was “just stand and watch.”

Phillips testified that it was his custom to leave the pump running until he was satisfied with the work. He further testified that at the time of the accident, the Ruthco job had not been finished, and that he, Phillips, had not relinquished control over the work to anyone.

The pump has a long overhead beam and a head at the end that sometimes is referred to as a horse’s head. Attached to the beam, and below it, is an arm which is attached to a crank and the revolving mechanism to which were attached two large semicircular iron counterweights. It takes the revolving parts, including the counterweights, 6 to 10 seconds to make a full revolution. Stated differently, it revolves 6 to 10 times per minute. It was “going about medium” at the time of the accident. Phillips thought it was going at about 8 turns per minute, which would make each turn a little over 7 seconds.

The plaintiff, Abalos, had replaced some dirt around the base and was using one foot to stomp it around the moving pump. As he worked, his hands were seen to be extended upward. At this time, the pumper, Morgan, was standing by observing. He was some 25 feet from the controls of the motor. He testified that he saw plaintiff’s left arm go over toward the running pump and thought to himself “that’s bad business” because the arm of Abalos was in a dangerous position, and Abalos did not seem to be aware that he was sticking his arm into the machinery. Morgan said he was tempted to say something to him or go to turn off the machinery, but then took no immediate action. Asked if he thought to disengage the motor at that instant, he testified, “No sir, I had done asked the pusher (Phillips) about turning it off.” Asked why he didn’t yell at Abalos if he thought it was dangerous, he testified, “Well, I just didn’t,” and “I just didn’t have time to yell at him.”

At about the time Morgan “started to holler” at the plaintiff, the revolving counterweight caught the plaintiff’s left arm and then his right arm. Morgan then ran for the brake and the clutch. He disengaged the clutch to keep the unit from pumping, and “pulled the brake off.” This was not a dangerous thing for Morgan to do. The pumping unit had not made a complete turn (6 to 10 seconds) by the time it was stopped by Morgan. It had gone about a half a turn.

There is a good deal of testimony about the revolving counterweights and the mechanism being completely open and obvious. Abalos had been in the oil fields over 9 years and had seen a great many similar pumping units. He testified that he realized the danger and that he had full knowledge that he had to be careful or he might get caught and be hurt. He could not remember why he got so close to the moving weights. Our opinion, however, is not based on the “no duty” concept attendant to the encountering of an open and obvious danger.

No dangerous conditions existed on defendant’s premises when Ruthco and its crew, including Abalos, came upon them to do their work. There is no testimony that an ordinary pumping oil well, such as the one in question, is an inherently dangerous instrumentality or would constitute a dangerous activity upon the premises. No mechanical defects were alleged, and there were no concealed dangers.

As this court said in Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970), any plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability. The threshold question, therefore, is whether Morgan was under a duty to Ruthco’s employee, Abalos.

At Phillips’ request, and in order to enable Ruthco to complete its job, Morgan connected the gas line, cranked the motor, and put the motor “in gear” so the pump would operate. He told Phillips he had to leave, and offered to throw the motor out of gear (leave the motor running, but stop the operation of the pump); but Phillips wanted the pump left operating. So this was done. Morgan was prepared to leave, with the work and the activity under Phillips’ and Ruthco’s control. Had Morgan left the site before the accident, his employer would not have been liable for the injury to Abalos. The entire activity was under the direction and control of Ruthco and its foreman, Phillips.

There is some testimony from Abalos that he requested Phillips and Morgan not to start the engine. But it is not contended that the starting of the motor by Morgan at Phillips’ request was itself the cause of the injury to Abalos. Abalos was completely familiar with such pumps, and all parties stood aside for a period of time before any further work was done to see that the base and pump were level. There was no request to turn the motor off. And Abalos knew the motor was running when he and the others shoveled dirt at the base of the pump and packed it with their feet. The basis of our holding on this point is hot that Abalos assumed the risk, but that as a matter of law, the starting of the motor was not negligent conduct on the part of Morgan or the proximate cause of the injury to Abalos.

Again, referring to our opinion in Coleman v. Hudson Gas Co., cited just above, the occupier is not an insurer, and as a plaintiff in any tort action, the plaintiff must prove the existence of a duty and a violation of that duty. And where the activity is conducted by, and is under the control of, an independent contractor, and where the danger arises out of the activity staff, the responsibility or duty is that of the independent contractor, and not that of the owner of the premises. Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973); Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971); Hailey v. Missouri K & T Ry., 70 S.W.2d 249, Tex.Civ.App.1934, writ refused.

Granted that Morgan, who arrived after the Ruthco crew had reassembled the pumping unit, connected the gas line and, at the request of Phillips, started the engine and pump, he was thereafter an observer. He stood aside as he was expected to do, and Phillips was in control of the entire operation. And, when Morgan needed to leave, he offered to take the pump “out of gear.” but Phillips wanted the pump to continue to run. It therefore, as a matter of law, was not negligent conduct on Morgan’s part not to stop the motor before he left, or planned to leave. Stated differently, Morgan, and his employer, the defendant oil company, were not under a duty to supervise the activity or Ruthco’s employees or to operate the motor while the activity of Ruthco was still in progress.

This brings us to the contention of Abalos that Morgan’s employer should be liable because Morgan discovered the peril of Abalos and did not warn Abalos or run quickly enough to stop the pump.

“Discovered peril” was adopted by this and other courts to remove the harshness of the absolute bar of contributory negligence. A person or a company operating, and in control of a locomotive or an automobile, could not with impunity run into or over a person in peril, even though the person in peril was where he or she was because of his or her own contributory negligence. Contributory negligence was not, under the circumstances, a defense; and the operator was under a continuing duty to avoid striking the person up to the point of impact if he could do so with safety and in time to avoid the injury. The Legislature of Texas has now abolished contributory negligence as an absolute bar and has substituted the doctrine of comparative negligence. It is therefore questioned whether the doctrine of discovered peril has survived, or should survive, the adoption of comparative negligence. Comment, 6 Texas Tech Law Review 131 (1974). It is not necessary to decide that question here.

Assuming that the doctrine of discovered peril is still a viable doctrine, its basis is that one in control of a vehicle, engine, or other instrumentality owes a duty not to direct, or use, it to injure a person in peril though the peril of the person is due to contributory negligence.

On the same day in March of 1942, this Court handed down two decisions. Both involved questions of duty to persons in peril. They reached different results as to liability. It may therefore be safely assumed that the Court deliberately intended the results reached in the two cases. They were Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109; and Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112.

In Turner, the plaintiff started his truck and negligently (without keeping a proper lookout for traffic) drove into the traveled portion of the highway. Though there was good visibility, and time and room to maneuver, the driver of the Texaco truck crashed into the plaintiff who had negligently gotten himself in a position of peril. This court there laid down the present rules for liability under the doctrine of discovered peril. The operator of the moving vehicle, and his employer, were under a duty not to injure the plaintiff, assuming the finding of the facts set out in the opinion.

In Buchanan, the truck driven by an employee of the defendant passed over a weak bridge. Its rear wheels crushed a part of the bridge. The resulting defect caused the bridge to be dangerous to traffic. A witness in a car behind the truck overtook the truck and asked the defendant’s driver if he were not going to put up a warning. The driver did not. It was pointed out that defendant’s truck was not overloaded, was not being operated in a negligent manner, and that the weakness of the bridge existed before defendant’s truck passed over it. The bridge was not caused to become defective because of any negligence on the defendant’s part. The defendant’s truck driver was, however, an “actor” in the sense that he had something to do with the danger; — his truck had activated the cave-in, though not as a result of any negligence on his part. Six days later, the plaintiff’s car struck the defect in the bridge, and injury resulted. On the same day it decided Turner and the discovered peril doctrine, this Court held that as a matter of law, the employer of the truck driver in Buchanan was not liable. He owed a moral duty, but not a legal duty, to the plaintiff. Chief Justice Alexander, in writing Buchanan, distinguished between people who create a dangerous condition and those who do not; and that, speaking in terms of duty: “. if a party negligently creates a dangerous situation it then becomes his duty to do something about it . . . . On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others.”

Buchanan has not been overruled; and while we are not necessarily prepared to extend it to cover all the situations used as illustrations by text writers who would require assistance or to protect persons in peril, we do regard Buchanan as applicable here. By the same token, we do not regard Turner as applicable here. As discussed in depth above, the defendant did not create the dangerous condition or activity. The entire operation, including the operation of the pump, was at the time under the direction and control of an independent contractor, Ruthco.

We, therefore, are of the view that the case has been correctly decided by the courts below; and the judgment of the court of civil appeals is, accordingly, affirmed.

Concurring opinion by POPE, J.

Dissenting opinion by REAVLEY, J., in which SAM D. JOHNSON, J., joins.

POPE, Justice

(concurring).

I concur in the holding of the court that Morgan owed no duty to Henry Abalos under the doctrine announced in Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942). Two other significant points are squarely presented by this appeal and they should be decided. Plaintiff Abalos says that the motion for instructed verdict should have been denied under his proof that the defendant had the last clear chance, and he says also that the no-duty doctrine was no basis for instructing a verdict against him. I would abolish both the last clear chance and the no-duty doctrines and return the practice to issues of negligence and contributory negligence, free of these confusing satellite issues.

Last Clear Chance

The doctrine of last clear chance is a part of the law’s thrust and parry arising from the merciful desire to ameliorate the harshness of the absolute defense of contributory negligence. Davies v. Mann, 152 Eng.Rep. 588 (1842). It applies when both parties are negligent, but the defendant’s negligence occurs at a later point in time. Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.1970); Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961); R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1960); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952); Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610 (1950); Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112 (1942); Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663 (1921); Pecos & N. T. Ry. Co. v. Rosenbloom, 173 S.W. 215, reh. den., 107 Tex. 291, 177 S.W. 952 (1915); Texas & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410 (1896); Houston & Texas Central R. R. Co. v. Smith, 52 Tex. 178 (1879). I would overrule all of these cases insofar as they recognize the last clear chance doctrine. Some old Texas cases retain the last clear chance doctrine in spite of the comparative negligence practice which article 6440, Tex.Rev.Civ.Stat.Ann., made applicable to railroads. Pecos & N. T. Ry. Co. v. Rosenbloom, 173 S.W. 215, reh. den., 107 Tex. 291, 177 S.W. 952 (1915), rev’d on other grounds, 240 U.S. 439, 36 S.Ct. 390, 60 L.Ed. 730 (1916); Pecos & N. T. Ry. Co. v. Welshimer, 170 S.W. 263 (Tex.Civ.App.1914, no writ). I would also overrule those cases.

Texas adopted the doctrine of last clear chance in 1879 in Houston & Texas Central R. R. Co. v. Smith, 52 Tex. 178. The court in that early case made the interesting suggestion that a system of comparative negligence would render the last clear chance doctrine unnecessary. The court rejected this suggestion because comparative negligence was not a viable alternative in 1879. This present case was also not tried by comparative negligence. Article 2212a, Tex.Rev.Civ.Stat.Ann. Of course, under a system of comparative negligence, the reasons for a doctrine of the total defeat or total victory such as last clear chance no longer exist. A number of states have abandoned the last clear chance doctrine by statute or decision, believing that comparative negligence and the last clear chance doctrine are incompatible. Ark.Stat.Ann. §§ 27-1763 to 27-1765 (Supp.1973); Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Burns v. Ottati, 513 P.2d 469 (Colo.App.1973); Conn. Laws 1973, c. 622 Sec. 1(c); Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Loftin v. Nolin, 86 So.2d 161 (Fla.1956); Cushman v. Perkins, 245 A.2d 846 (Me.1968). Wisconsin rejected the doctrine without regard for comparative negligence. Switzer v. Detroit Inv. Co., 188 Wis. 330, 206 N.W. 407 (1925). See P. W. Johnson, The Doctrine of Last Clear Chance — Should It Survive the Adoption of Comparative Negligence in Texas, 6 Tex.Tech.L.Rev. 131 (1974); P. Keeton, Private Law, Torts, 28 Sw.L.J. 1, 15 (1974).

Last clear chance is almost the last viable doctrine in Texas ancillary to the genuine issues of negligence and contributory negligence. We have already held that instructions to the jury should be substituted for the submission of: unavoidable accident and sudden emergency, Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971); excuse, Southern Pacific Co. v. Castro, 493 S.W.2d 491 (Tex.1973); new and independent cause, Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); and res ipsa loquitur, Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1975).

We abolished the separate submission of issues inquiring about voluntary assumption of risk in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975) saying, “the reasonableness of an actor’s conduct in confronting a risk will be determined under principles of contributory negligence.” We abolished the false “open and obvious” special issues in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972) and explained the correct use of that phrase in Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972). Instead of an independent defense to an action, the phrase “open and obvious” is merely descriptive of that state of the evidence which establishes a fact as a matter of law. When a condition is both “open and obvious,” there is conclusive proof that one knew and fully appreciated a specific danger. It was in that sense that this court recently wrote in Coffee v. Woolworth Company, 536 S.W.2d 539 (Tex.1976). The phrase, however, has such a long history of confusion that it would be better to drop it from the practice. The state of the evidence should be discussed in terms of “no evidence,” “all the evidence” or “the proof conclusively shows.” The sum of all those decisions is that cases should be tried on issues of negligence and contributory negligence and should not be entangled with collateral issues. See Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1975).

Last clear chance, as an independent doctrine, has no stronger claim for survival than the other collateral issues. It is unjust for last clear chance to completely excuse a plaintiff’s negligence when assumption of risk does not defeat his cause of action. To paraphrase Farley: henceforth in the trial of all actions based on negligence, . last clear chance will no longer be treated as an issue. Rather, the reasonableness of an actor’s conduct will be determined under principles of negligence.

No-Duty

Plaintiff Abalos insists that the court of civil appeals failed to hold that the no-duty doctrine has also been replaced by the reasonable man test of primary and contributory negligence. He says that by implication the no-duty doctrine was abolished by our decision in Farley which held voluntary assumption of risk was no longer a viable separate defense in a negligence case. Abalos reasons that no-duty and voluntary assumption of risk address the same issue, the defendant’s duty. We have so held in a number of prior decisions, Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Ellis v. Moore, 401 S.W.2d 789 (Tex.1966). In McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), while recognizing this duplication and overlap, this court expressed the view that well-settled principles of substantive law justified the practice of distinguishing no-duty and voluntary assumption of risk:

It would greatly simplify our procedural problems if we could follow the course suggested by the San Antonio Court of Civil Appeals in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, writ refused, n. r. e., and let this class of cases fall into the pattern of the usual negligence case, deciding the question of negligence and breach of duty on the part of the owner by looking only to his conduct and the question of voluntary exposure to risk on the part of the invitee by looking alone to his conduct, but to do so would be to ignore the well-settled law of this state, as expressed in the cases above cited, that there is no duty on the owner of premises to take precautions to protect his invitee from dangers on the premises of which the invitee is or should be fully aware and which he voluntarily encounters. To determine the existence and the extent of the owner’s duty we must therefore look not only to the conduct of the owner but to the conduct of the invitee as well. It may well be that when we examine the conduct of the invitee for the purpose of deciding whether there has been a breach of duty by the owner we necessarily decide, as an incident thereto, the defensive issue of voluntary exposure to risk, with the result that a decision of the first question follows a decision of the second automatically. . . . But this resulting intermingling of the two problems would not justify our rewriting the substantive law of the state to impose a duty where it is so firmly established none exists. Even if voluntary exposure to risk be not pleaded as a defense the duty question would still be present. On the other hand, the problem being presented by the facts so as to raise the question of “no duty”, there would seem to be little or no place in the case for the defense of voluntary exposure to risk except, perhaps, to highlight the problem.

The elements which overlap between the so-called no-duty doctrine, voluntary assumption of risk, contributory negligence, and the nebulous open and obvious idea were sorted out in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). At that time, as was the case ten years earlier when McKee was before this court, there was still some thought that the confusion could be eradicated. No-duty was explained in Halepeska:

The “no duty” doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, [163] Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn or to protect the invitees. This is so, the cases say, because there is “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.
So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiffs case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative “no duty.” This is the “no duty” referred to in the cases. Academically, it may be a rather clumsy concept, but it is still the law. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948). [Emphasis added.]

The duplicating and overlapping concepts were again examined in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972). We included two extensive footnotes in that opinion. The first footnote shows that the practice then existing required a plaintiff to prove a defendant’s breach of duty by an objective standard and that he had also to disprove his own knowledge and appreciation measured by a subjective test. Those are the no-duty issues. The defense was voluntary assumption of risk which is a slight variation of the no-duty test with a shifted burden of proof. This defense was measured by a subjective test. The defendant could go further and defend on contributory negligence, an objective test.

The issues in Adam Dante’s second footnote did not require the plaintiff to disprove his own knowledge and appreciation of the danger. In that slip and fall case, we suggested that the submission which omitted the no-duty issues was more appropriate than the prior submission which contained the no-duty issues. We again set forth the submission in Adam Dante’s footnote two, which omits the no-duty issues, as the correct way for a plaintiff to try an occupier-invitee case. If no-duty was not abolished in Adam Dante, I would expressly do so now.

The good reasons to observe stare decisis when McKee and Halepeska were decided no longer exist. Already this court has eliminated the side issues which snarl the simpler trials which employ principles of negligence and contributory negligence. More importantly, the legislature by the adoption of the comparative negligence statute has expressed an intent to eliminate collateral issues. We have now already done by our decision in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975), what this court felt it could not do in McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). Voluntary assumption of risk has been eliminated in favor of the return of occupier-invitee cases to trials by negligence and contributory negligence.

The plaintiff has the burden to prove that the defendant had a duty which he breached. We so held by our approval of Restatement (Second) of Torts, § 343 (1965). We quoted that section and approve it as the duty rule in a slip and fall case between an invitee and an occupier.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning.

The difference between the no-duty rule and the above Restatement rule is that the Restatement rule of section 343 does not require the plaintiff to go further and negate his own knowledge and appreciation of the danger. This problem of requiring the plaintiff to negate his own knowledge and appreciation of the danger arises from an overstatement of the defendant’s duty. An illustration of this overstatement is found in Halepeska:

But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn or to protect the invitees. This is so, the cases say, because there is “no-duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.

A similar overstatement of the duty rule is Section 343A of Restatement (Second) of Torts (1965). We did adopt the duty rule of section 343 in Adam Dante Corporation v. Sharpe. We did not adopt section 343A, and we do not adopt it now. This overstatement of the defendant’s duty so that it looks back upon what the plaintiff knows or does was criticized in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.1952, writ ref’d n. r. e.).

We summarized in Camp the many earlier cases which had been tried by the simpler negligence and contributory negligence issues. We reviewed the same cases in Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), as justification for abolishing voluntary assumption of risk. We again discuss some of them as reasons for the return to the reasonable man test in deciding occupier-invitee cases. These cases show that there is no better reason to retain no-duty than there was to retain voluntary assumption of risk.

Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950) illustrates the successful and fair trial of premises actions upon principles of negligence and contributory negligence. Plaintiff Blanks sued to recover for injuries he sustained when he fell on a dimly lighted stairway from his apartment. Defendant Hotel, charged with several acts of negligence, relied upon the defense of contributory negligence. The jury refused to find that the plaintiff was contributorily negligent in (1) failing to keep a proper lookout, (2) failing to hold onto the handrail, (3) failing to watch where he was stepping, or (4) failing to request assistance down the stairway. The supreme court ruled that the question was whether or not the evidence established contributory negligence as a matter of law but held that it did not under the record made. The case was tried on principles, of simple negligence and contributory negligence without the snarling effects of no-duty, open and obvious, or voluntary assumption of risk.

Gulf, C. & S. F. R. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227 (1888) is another example of the trial of a case upon negligence principles even though the plaintiff knowingly encountered a specific danger. Plaintiff Gascamp approached a bridge that defendant had the duty to maintain. The bridge was out of repair and dangerous, and the plaintiff testified that he knew about the defective character of the bridge. The horse on which plaintiff was riding, dislodged a rotten plank and became frightened. This court held that the question of knowledge of the defective condition related to the issue of contributory negligence and whether that was established as a matter of law. The case is cited in McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 447 (1941) for the principle that there are some circumstances in which one may as an ordinary prudent person take the risk of a known specific danger: “even where a person has knowledge, actual or imputed . . ..” The court went on to hold, however, that the trial court may find in an appropriate case as a matter of law that a person of ordinary care would not have incurred the risk. Other holdings that premises cases may be tried on principles of negligence and contributory negligence are: Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941); Texas & N. O. R. Co. v. Wood, 166 S.W.2d 141 (Tex.Civ.App. 1942, no writ); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App.1949, writ ref’d n. r. e.); Temple Electric Light Co. v. Halliburton, 136 S.W. 584 (Tex.Civ.App.), aff’d, 104 Tex. 493, 140 S.W. 426 (1911); Henwood v. Gilliam, 207 S.W.2d 904 (Tex.Civ.App.1947, writ ref’d); Texas & N. O. R. Co. v. Blake, 175 S.W.2d 683 (Tex.Civ.App.1943, writ ref’d); Northcutt v. Magnolia Petroleum Co., 90 S.W.2d 632 (Tex.Civ.App.1936, writ ref’d). An instructed verdict by reason of contributory negligence as a matter of law is a suitable alternative and is a simpler order than one based on principles of no-duty. See United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297 (1943).

I, therefore, would hold that no-duty like open and obvious and voluntary assumption of risk should not be submitted as special issues. Nor should those doctrines be the subject of instructions to jurors. Scholars and theorists, after a lifetime of study, are unable to agree or communicate the nuances of the« distinctions. It is unfair then to expect jurors to comprehend these distinctions when they, once in a lifetime, hear an instruction read which orally states the meanings of these obscure doctrines. We should not prolong the endless debates about the distinctions between subjective and objective tests of knowledge and appreciation, the changing burdens of proof on the several duplicated matters, the proof of the negative of one’s own knowledge and appreciation, and the exceptions to and limitations upon these doctrines.

Efforts to clarify and explain by instructions such rules as last clear chance, voluntary assumption of risk, open and obvious, and no-duty and, at the same time, to permit their use with stated limitations or exceptions have not proved successful. Concluding that confusion lingers as long as voluntary assumption of risk survives, New Jersey abandoned its simultaneous efforts to both clarify and make limited use of the doctrine. It wrote in McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963):

Experience, however, indicates the term “assumption of risk” is so apt to create mist that it is better banished from the scene. We hope we have heard the last of it. Henceforth let us stay with “negligence” and “contributory negligence.”

An instruction concerning last clear chance is also unnecessary. Trial advocacy and oral argument can invite the jurors’ attention to a plaintiff’s or a defendant’s failure to act as a reasonable person, and such notions as last clear chance and the assumption of a known risk, or full knowledge and appreciation of a danger can. be subsumed under the simpler doctrines of negligence and contributory negligence. Kaatz v. State, 540 P.2d 1037 (Alaska 1975).

For reasons expressed at the outset, I concur in the result.

REAVLEY, Justice

(dissenting).

I would hold that Abalos has produced evidence which would warrant a jury finding that Morgan failed to exercise due care to protect Abalos from the danger of the pumping unit. Morgan represented the owner of the pump and occupier of the premises. His duty to Abalos was that owed to a business invitee. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). The scope of that duty is at least as broad as is stated in § 343 of the Restatement (Second) of Torts (1965). If under all of the circumstances the occupier should realize that the condition or use of the premises involves an unreasonable risk of harm to the invitee, the occupier must exercise reasonable care to protect the invitee against the danger. If those circumstances are that a hole or cliff or pumping unit are plainly visible, the occupier may reasonably expect invitees to go safely about their business without requiring the construction of “Danger” signboards or guard rails. If the danger is not plainly visible, the occupier may discharge the requirement of due care by giving an adequate warning. In the present case we may assume that if Morgan had left the premises after starting the pump motor, the circumstances would have warranted no recovery by Abalos.

The circumstances changed, however. Morgan watched Abalos work his way into the devastating clutch of the pump. A jury could find that Morgan should have known that Abalos was totally unaware of his proximity to the pump and that Morgan should have known that Abalos would be mangled if Morgan did nothing. The jury would be entitled to find a failure to warn, under all of the circumstances, to be negligence.

I do not regard Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942), as relevant. Morgan was no bystander; at all times he owed the legal duty to Abalos of occupier to invitee.

While the occupier may discharge the care required of him under one set of circumstances, a change in circumstances may require more of him. His legal duty may require more than a one-time response. Suppose the occupier carefully undertakes to give an adequate warning to a contractor on his premises by showing the foreman where all high pressure gas lines are located; the occupier fulfills the requirements of Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967), and of Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971). He may then retire with impunity. But suppose he does not retire. He remains on the premises and overhears workmen talking; he learns from that talk that they do not know of a gas line or have misunderstood its location. May the occupier stand by and let the workmen dig into the gas line? Of course he cannot — not without liability.

I do not regard the “control” question as an important one. The Ruthco operation or the manner in which that work was done does not rule the issue of Morgan’s negligence. The pumping unit was a premises condition; if it was a danger, the occupier owed the invitee a duty to exercise due care toward its avoidance.

I agree that the issues for the jury should be negligence and contributory negligence. So much for “last clear chance” and “discovered peril” and “no-duty/assumption of risk.” In the proof and contention for and against determinations of negligence, most of the same arguments (and terminology too) may be used. But these are not issues to be submitted separately to the jury, and they are not defenses to overcome adverse findings as were “assumption of risk” or “discovered peril.” We go with negligence and contributory negligence (now comparative) to resolve the fault question.

I would remand this case to the trial court for that method of trial.

SAM D. JOHNSON, J., joins in this dissent.

      . The evidence is that the revolving parts of the pump took about 8 seconds to make a full rotation, and that it would have taken Morgan 3 seconds (after realization) to move the 25 feet to the controls. Phillips testified that if Morgan had not disengaged or stopped the revolving mechanism when he did, i. e., before a full revolution of the pump, the plaintiff, Abalos, would probably have been killed. He testified that there is no doubt in his mind that Abalos would have been dead.

      . The defense of volenti, a voluntary assumption of the risk in the ordinary negligence case, was abolished. Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975). The court, however, was careful to state that “henceforth in the trial of all actions based on negligence, volenti . will no longer be treated as an issue.” 529 S.W.2d at 758. This case was tried and decided by the Court of Civil Appeals before Farley. Farley did not speak to “no duty.” Neither does this opinion deal with the “no duty” concept as it relates to “open and obvious” danger which have been related to the concept of assumption of the risk. We do not reach that question. See Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976).

      . And again, we are not talking about negating “no duty” in the concept of the assumed risk cases such as Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

      . Prosser, Law of Torts 340 et seq. (4th ed. 1971); 2 Harper & James, The Law of Torts 1046 et seq.

        .Adam Dante Corporation v. Sharpe, 483 S.W.2d 458 n. 2 (Tex.1972).

        Plaintiff’s Issues

      1. Defendant created or maintained a dangerous condition (stating it) on its premises. (Objective Test)
      2. Defendant knew (or should have known) of the condition. (Objective Test)
      3. Negligence in some particular act or omission (failure to inspect, failure to correct, failure to warn, etc.).
      4. Proximate cause.

      . § 343 A. Known or Obvious Dangers
      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
      (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.


author: REAVLEY, Justice.

text:
    J. H. (Dick) CALFEE, Petitioner, v. D. G. DUKE et al., Respondents.
    No. B-5897.
    Supreme Court of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 22, 1976.
    Darden, Fowler & Creighton, William E. Fowler, Conroe, Kronzer, Abraham and Watkins, W. James Kronzer, Jr., Houston, for petitioner.
    John W. Overton, Houston, Rex G. For-tenberry, Beaumont, for respondents.
   REAVLEY, Justice.

The only remaining issue in this trespass to try title suit is whether the evidence raises a fact issue of the possessor’s claim of right to mature his limitation title under the ten yéar statute. The trial court after a non-jury trial rendered judgment in favor of the adverse possessor, J. H. (Dick) Cal-fee. The Court of Civil Appeals held that, by his own testimony, Calfee conclusively established that his claim to the disputed land was not “adverse” under the ten year statute; the trial court’s judgment was therefore reversed and rendition of judgment was ordered in favor of 21 parties in accordance with their respective interests as heirs of J. H. Duke. 533 S.W.2d 839. We will affirm the judgment of the trial court.

The land in dispute consists of 24.744 acres which is fenced together with 223.8 acres known as the “Moorefield homestead.” Calfee acquired a deed in 1946 which describes the conveyed land as “embracing what has for many years been known as the Moorefield Homestead,” and further sets forth a full metes and bounds description. This same description has been used in a chain of deeds which are contained in this record and go back as far as 1894. That chain includes conveyances, pri- or to 1920, to and from Calfee’s parents. We do not know how the disputed 24 acres came to be included under the same fence with the Moorefield homestead land. The record does not show a chain of title for the disputed land. There is no evidence whatsoever on the ground of any fence or other boundary sign along the east margin of the Moorefield homestead, as measured by the metes and bounds distances, and the west margin of the 24 acres.

The Duke heirs introduced into the record a 1935 judgment which terminated a lawsuit of very many parties affecting a very large amount of land. That judgment purported to award title to the 24 acres of land of the present dispute to the heirs of J. H. Duke and to Calfee’s mother and father, both of the parents having been parties to the suit and having disclaimed all interest in the land by proper instrument executed and filed therein. Calfee’s mother was a daughter of J. H. Duke. Whatever interest she may have had in the land passed by her will to Calfee’s father when she died in 1949; and the father’s interest, if any, then passed by his will to Calfee after the death of the father in late 1956. A chain of deeds has been introduced in the present record affecting the Moorefield homestead land, but we perceive no connection between the sovereignty of the soil and any party to the 1935 litigation — either for the 223 acres of the Moorefield homestead or the 24 acres now disputed. For present purposes, however, we will assume that the 1935 judgment is proof of common source of title between the parties to the present litigation, and we will further assume that Cal-fee’s right to prevail in this case depends upon his proof of limitation title.

The Duke heirs have not contended that Calfee’s use and occupancy of the land failed to satisfy limitation requirements. Their contention in the Court of Civil Appeals was that Calfee became a eotenant with the other Duke heirs upon his father’s death and that Calfee failed to bring home to these cotenants notice of his repudiation of their title. We do not reach that contention if Calfee entered into possession of the land in July of 1946 for himself and without a cotenancy relation to anyone. An inheritance after that date would not of itself create the relationship which would require an express repudiation by him. See Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256 (1939); Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565 (1950); Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942). Furthermore, the full ten year limitation period passed prior to the death of Calfee’s father.

The Court of Civil Appeals held that the adverse possession of Calfee could not have begun prior to the death of his father because of Calfee’s testimony at the trial that he did not claim the land in question against his mother and father while they were living. That conclusion must be based upon the following exchange at the close of the cross-examination of Calfee:

Q Did you start adversely claiming it against your father and mother?
A I didn’t start claiming it against nobody, but he—
Q When did you start claiming it against anybody?
A When I bought it.
Q When your father and mother were living, were you claiming it against them?
A No, sir. I wasn’t claiming it against nobody. I bought what I understood was that place, and it was fenced, and that’s the way people have been using it, and that’s what I bought.

It was Calfee’s testimony that there was no difference between his use or claim of the disputed acreage during the years before the death of his father and in the years thereafter. He commenced “claiming it as his own” at the time he made his purchase in 1946 because he believed at all times that his deed included all of the land under fence. He thought he “owned” all of the fenced enclosure after taking the 1946 deed. What, then, is the effect of his testimony set forth above that he was not claiming against his mother and father?

To satisfy the limitation statutes, “adverse possession” must be not only “an actual and visible appropriation of the land” but it also must be “commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Art. 5515, Vernon’s Ann.Civ.St. No matter what the use and occupancy of the land may be, the possessor must intend to appropriate it. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956). If by mental reservation the possessor intends to hold the land only until or unless the true owner appears, his claim of right does not satisfy this requirement. Word v. Drouthett, 44 Tex. 365 (1875); Thompson v. Moor, 14 S.W.2d 803 (Tex.Com.App.1929); Orlando v. Moore, 274 S.W.2d 86 (Tex.Civ.App.1954, writ ref’d n. r. e.).

In many cases the statements of the adverse claimant appear to be, or may in fact be, inconsistent. It is usually held that a fact issue is thereby presented on the question of his intent to claim the land. In Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 (1944), the possessor testified in his deposition that he was not trying to take the land away from those who owned it, but at the trial he said that he had always claimed it for himself. In Stewart v. Luhning, 134 Tex. 23, 131 S.W.2d 824 (1939), the possessor testified that he would have either leased or bought the land if the true owner had been found at the time when his possession began, but his other testimony was held not to show conclusively that this was his state of mind during the subsequent possession of the land. In Payne v. Priddy, 371 S.W.2d 783 (Tex.Civ.App.1963, no writ), the possessor testified that he would not have asserted claim to any land that did not rightfully belong to him, but during the limitation period he did in fact claim all of the land under his fence and he had no knowledge that his fence was not located at the boundary set by his deed.

Since the trial court has resolved all fact issues in favor of Calfee, it would not matter at this point whether or not his testimony was inconsistent. It does seem clear that what he was saying at all times was that for over 20 years he never thought of himself as claiming adversely to anyone for the simple reason that he thought that he was the rightful owner and had no competition for that ownership. He testified as follows:

Q Mr. Calfee, when you bought from Watson and Paddock, did you claim everything that was under fence?
A That’s right.
Q And was this twenty-seven acres that you now understand to be in dispute, was that within your fence?
A That was in the fence.
Q And you claimed everything inside the fence?
A That’s right.
Q Prom the date you bought it?
A That’s right.

That being his claim of right, and it being coupled with his actual and visible possession and use, the adverse claim and possession satisfy the statutory requirements and cannot be defeated by Calfee’s lack of knowledge of the deficiency of his record title or by the absence of a realization that there could be other claimants for the land. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Bruce v. Washington, 80 Tex. 368, 15 S.W. 1104 (1891); Goslin v. Beazley, 339 S.W.2d 689 (Tex.Civ.App.1960, writ ref’d n. r. e.); Yates v. Hogstrom, 444 S.W.2d 851 (Tex.Civ.App.1969, no writ); 7 Powell, The Law of Real Property § 1015; Anno.: Adverse Possession — Mistake in Boundary, 97 A.L.R. 14, 36 (1935).

The judgment of the Court of Civil Appeals is reversed; the judgment of the trial court is here affirmed.