author: BISSETT, Justice.

text:
    CORPUS CHRISTI BANK & TRUST et al., Appellants, v. William R. CROSS, David R. Baker and Lawrence Kieschnick d/b/a Cross, Baker & Kieschnick, Appellee.
    No. 1390.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Rehearing Denied Sept. 21, 1979.

      Charles R. Cunningham, Corpus Christi, for appellants.
    Scott T. Cook, Larry G. Hyden, Harris, Cook, Browning & Barker, Inc., Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment awarding plaintiff damages and attorney’s fees in its suit for accountant’s fees against the defendant bank in its individual capacity for services furnished the estate of a decedent while the defendant was temporary administrator of the estate. We affirm.

The present controversy arose out of the performance by William R. Cross, David R. Baker and Lawrence Kieschnick d/b/a Cross, Baker & Kieschnick (hereinafter referred to as “plaintiff”) of certain accounting services for Corpus Christi Bank & Trust (hereinafter referred to as the “Bank”), the temporary administrator of the Estate of Mrs. Rose Van Cura Kosar (hereinafter referred to as the “Estate”). As a result of these services, a suit for accountant’s fees was brought by plaintiff against the Bank in its individual corporate capacity. Trial was to a jury. Judgment was rendered in favor of plaintiff against the Bank in its individual corporate capacity. The Bank and Darlene Van Cura have appealed.

A threshold issue of a procedural nature has been raised by the Bank’s seventh point of error. By this point, it is alleged that the trial court committed reversible error in three particulars: 1) in nonsuiting Darlene Van Cura (hereinafter referred to as “Van Cura”) as a co-defendant in the plaintiff’s suit for accountant’s fees; 2) in ordering a separate trial of Van Cura’s counterclaim for malpractice; and, 3) in ordering a severance of Van Cura’s counterclaim for malpractice. In disposing of this point, we deem it necessary to briefly review the complex procedural history of this ease.

The Bank and Van Cura were originally joined as co-defendants in the plaintiff’s suit for accountant’s fees. The Bank answered plaintiff’s petition with a general denial and further brought a cross action for indemnity against Van Cura. The latter answered plaintiff’s petition with genral and special denials, and filed a counterclaim for malpractice. Van Cura was then non-suited by plaintiff, and the trial court ordered that her counterclaim be tried separately from the main action. The record does not reveal that any objections were raised by either of the defendants at that time.

Later, the Bank and Van Cura entered into an agreed partial summary judgment disposing of the Bank’s cross action for indemnity against Van Cura. This agreed judgment ordered Van Cura, in her capacity as executrix of the Estate, to indemnify the Bank against any recovery which might be had by plaintiff in its main suit for accountant’s fees. At this point, there was a certain merging of interests between the Bank and Van Cura, and the attorney for Van Cura was designated as additional counsel for the Bank. Trial of the main action was conducted before a jury which returned a verdict favorable to plaintiff. After return of the verdict, but before rendition of judgment, plaintiff moved to sever Van Cura’s counterclaim. This was done, but not until after judgment had been rendered for plaintiff against the Bank and for the Bank against Van Cura. Hence, the posture of this case, as it stood when the judgment of the trial court was appealed, was that Van Cura had been removed from the law suit except insofar as the final judgment reflected the prior agreement of the parties evidenced by the partial summary judgment of indemnity.

We can find no reversible error alleged in the Bank’s seventh point of error. The right to take a nonsuit when affirmative relief is not sought by defendant is absolute and cannot be denied by the trial court. State v. Gary, 359 S.W.2d 456 (Tex.Sup.1962); Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600 (1944); Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22 (1931); Ex Parte Helle, 477 S.W.2d 379 (Tex.Civ.App.—Corpus Christi 1972, no writ). Where defendant has filed a counterclaim seeking affirmative relief, however, plaintiff shall not be permitted, by a discontinuance of its suit, to prejudice the right of defendant to be heard on such counterclaim. Spence v. State National Bank of El Paso, 294 S.W. 618 (Tex.Civ.App.—El Paso 1927) aff’d, 5 S.W.2d 754 (Tex.Com.App.1928); Valdez v. Gill, 537 S.W.2d 477 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.). Thus, Van Cura was not prejudiced by the trial court’s action in nonsuiting plaintiff’s claim against her for accountant’s fees. Her claim for malpractice was alive and well at that moment. Coining the Bank’s phraseology, Van Cura was not judicially stripped of her right to pursue her counterclaim against plaintiff by virtue of the non-suit.

Prior to Van Cura’s nonsuit, her counterclaim for malpractice was compulsory under Rule 97(a), T.R.C.P. See In Re McCoy, 373 F.Supp. 180 (W.D.Tex.1974). The nonsuit had the effect of transforming the malpractice claim from a compulsory counterclaim into a separate action for damages. This is because Rule 97(a) does not contemplate a situation where the counter-plainfiff is no longer a party to the main action. See Valdez v. Gill, supra; Astro Sign Company v. Sullivan, 518 S.W.2d 420, 427 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Robertson v. Estate of Melton, 306 S.W.2d 811, 813 (Tex.Civ.App.—Beaumont 1957, writ ref’d); Heights Funeral Home v. McClain, 288 S.W. 839, 843 (Tex.Civ.App.—Beaumont 1956, no writ).

When the trial court ordered that Van Cura’s malpractice claim be tried separately from the plaintiff’s action for accountant’s fees, Van Cura had the burden at that time to raise any error allegedly resulting from piecemeal litigation. See Lewis v. Texas Employers’ Insurance Association, 151 Tex. 95, 246 S.W.2d 599 (Tex.Sup.1952). The record does not indicate that any such objection was raised by anyone at that time. Therefore we will not review the trial court’s action in ordering separate trials.

Regarding the trial court’s order severing Van Cura’s claim for malpractice from the plaintiff’s claim for accountant’s fees (See Rule 41, T.R.C.P.), the record indicates that such decision was made by the trial court on March 9, 1978, the date the final judgment was signed. Acknowledging the general rule that severance of compulsory counterclaims usually will constitute an abuse of discretion, Bohart v. First National Bank in Dallas, 536 S.W.2d 234 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.); Ball v. Cooper-Stanley Company, Inc., 413 S.W.2d 467 (Tex.Civ.App.—Dallas 1967, no writ); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.—Fort Worth 1951, writ ref’d n. r. e.), it has already been noted that Van Cura’s claim ceased to be a compulsory counterclaim after the plaintiff’s nonsuit as to her. While severance of claims which are not compulsory counterclaims can also, in some circumstances, constitute an abuse of discretion, Cruz v. Guajardo, 502 S.W.2d 610 (Tex.Civ.App.—Corpus Christi 1973, no writ), we find that Van Cura has not been prejudiced. Moreover, any waste of judicial economy or prejudice to Van Cura caused by piecemeal litigation was already an accomplished fact when the court finally ordered a severance of the claims. No abuse of discretion has been shown.

Finding no reversible error concerning the nonsuit of Van Cura or the severance of her malpractice claim, we are thus faced with a simple suit for accountant’s fees brought by plaintiff against the Bank, the temporary administrator of the Estate, in its individual corporate capacity. The material facts of the case are not really in dispute, at least insofar as they relate to the appeal. The significance of the facts, though, is hotly contested by the parties; therefore, we shall endeavor to relate the events which gave rise to the controversy in as much detail as necessary.

Mrs. Kosar died on April 26, 1974, in Corpus Christi, Texas. Shortly after her death, Richard B. Stone, an attorney who had prepared a will for her in 1971, visited the Bank and advised David Brannon, an officer in its trust department, that the decedent, in the 1971 will, had named the Bank as independent executor. Brannon, acting for the Bank, agreed to attempt to qualify as independent executor, and requested Stone to probate the will. Brannon asked Stone the identity of Mrs. Kosar’s accountant. Stone told him that plaintiff had attended to the testatrix’s accounting needs before her death. Stone testified that Brannon then indicated an intention of the Bank to retain plaintiff as an accounting firm in connection with its handling of the Estate. Brannon, however, had no personal recollection of any conversation with Stone concerning, specifically, the hiring of an accounting firm. Brannon testified that plaintiff was not retained by the Bank to furnish accounting services for the Estate until after the Bank became temporary administrator thereof. This was disputed by Cross, who testified to a telephone conversation with Brannon that took place about one week after Mrs. Kosar’s death, in which, according to Cross, Brannon requested that plaintiff prepare a federal estate tax return for the Estate.

Stone further testified that he was given authority to deal with plaintiff on behalf of the Bank, and that he personally informed plaintiff that the Bank desired it to perform accounting services in connection with the Estate. This was consistent with Cross’s testimony relating to the aforesaid telephone conversation with Brannon about a week after Mrs. Kosar’s death.

It soon became apparent to all concerned that the contemplated probate of the 1971 will would not be a simple matter. About the time that Stone filed the 1971 will for probate he was advised that another will (hereinafter referred to as the “second will”) also had been offered for probate. A will contest developed, and the Bank was appointed temporary administrator of the Estate on June 18, 1974. It was specially authorized to:

“ . . . take possession of the property of the estate, collect all monies and debts due the estate, and pay all debts due by the deceased, after the same are properly verified as the law requires under administration and approved by the court and to do and perform all such acts as may be necessary for the preservation of the estate . . . .” (Emphasis supplied).

In furtherance of these duties, the probate court, on June 11, 1974, granted the Bank’s request to retain plaintiff to prepare the federal estate tax return, the state inheritance tax return and income tax returns on behalf of both the decedent and the Estate.

The temporary administration lasted into November, 1975, during which time the will contest continued and attempts were made by the opponents of the 1971 will to have the Bank removed as temporary administrator. The will contest was settled on November 5, 1975, and Van Cura qualified as independent executrix of the Estate pursuant to her nomination as such by the appropriate provisions of the second will, which by agreement of all parties and the concurrence of the probate court, was duly admitted to probate as the last will and testament of Mrs. Kosar. Pursuant to the settlement agreement, the Bank delivered all records and assets of the Estate to Van Cura on November 7, 1975. Temporary administration was closed per order of the probate court, which was signed on November 16, 1975. The instant suit was filed by plaintiff on February 18, 1976.

It is undisputed that plaintiff performed accounting services for the Bank in connection with the Estate sometime between the date of Mrs. Kosar’s death, and November 7,1975. Those services included: determining the extent and location of all assets of the Estate; gathering those assets together; preparing a summary of monies received by Mrs. Kosar from her husband’s estate during the three years next preceding her death, apparently to determine whether a claim should be brought by the Bank on behalf of the Estate against the husband’s estate; assistance in obtaining extension of time for filing the state inheritance tax return; and assistance in responding to discovery launched by opponents of the 1971 will in relation to the ongoing will contest and their attempts to remove the Bank as temporary administrator of the Estate.

Mention has already been made of evidence that plaintiff was hired as early as a week after Kosar’s death to prepare the Estate Tax Return. Brannon denied that Stone was ever given authority to retain plaintiff. This was disputed by Stone, who testified that he called upon plaintiff for assistance in preparing the Bank’s application for appointment as temporary administrator. Stone also testified that, while no tax returns were prepared by plaintiff before June 18, 1975, the date of the Bank’s appointment as temporary administrator, work necessary to the preparation of such returns had commenced shortly after the date of Mrs. Kosar’s death. Cross and Baker testified that, during the weeks immediately following Mrs. Kosar’s death, they worked closely with Stone in preparing an inventory of the Estate and the Bank’s application for probate of the 1971 will.

The first statement presented by plaintiff to the Bank for services rendered was dated August 19, 1975. That statement, which was neither itemized nor verified, showed a total of $7,800.00 due and owing as compensation for the preparation of the three different tax returns, hereinbefore mentioned. It was addressed to the Estate in care of the Bank in its capacity as temporary administrator thereof. A second such statement was presented to the Bank on or about November 7, 1975. This statement carried over the balance due under the August bill and, in addition, indicated that an additional $1,225.00 was due and owing for services rendered in connection with discovery relating to suits involving the Bank as temporary administrator of the Estate. The monies evidenced by the statements were not paid. In response to special issues, the jury found that the Bank had authorized plaintiff to perform services in connection with the Estate and that plaintiff had performed such services, worth $9,025.00, in a good, accountant-like manner. In addition, the jury awarded attorneys’ fees for the prosecution of its suit against the Bank. Judgment was rendered upon the verdict.

There is, in our opinion, abundant evidence to support the jury findings. The question to be resolved, however, is whether those findings will support a judgment against the Bank in its individual capacity.

The liability of an estate for professional services rendered to it, whether directly to the person furnishing such services upon a proper claim therefor or to the administrator of the estate upon his account for expenses of administration, is limited to such services as are necessary, and to such amount of fees as is reasonable. However, the necessity for the services and the reasonableness of the fees are questions to be determined by the probate court, and not by the administrator. Jones v. Gilliam, 109 Tex. 552, 212 S.W. 930 (Tex.Sup.1919).

When a personal representative contracts for anything necessary to an administration of the estate he does so as an agent for the estate. As such, he is totally free to contract for necessary services in his representative capacity. Portis v. Cole, 11 Tex. 157 (1953); Hare v. Pendleton, 214 S.W. 948 (Tex.Civ.App.—Texarkana 1919) rev’d on other grounds, 231 S.W. 334 (Tex. Com.App. 1921, jdgmt. adopted). However, unless otherwise stipulated, it is assumed that the personal representative, in contracting with a third party for professional services to the estate, did so in his individual capacity. McGloin’s Ex’rs v. Vanderlip, 27 Tex. 366 (1864); Morton’s Estate v. Ferguson, 45 S.W.2d 419 (Tex.Civ.App.—Eastland 1932, writ ref’d). Consequently, in the absence of a stipulation to the contrary, the third party may elect to hold the representative to a personal liability. Morton’s Estate v. Ferguson, supra; McGloin’s Ex’rs v. Vanderlip, supra; Kitchens v. Culhane, 398 S.W.2d 165 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.). In such a case, the representative has a right of reimbursement against the estate to the extent that the third party’s services were necessary and his fees were reasonable. The possibility that a representative of an estate may be held personally to a greater liability than can be chargeable to the estate may be avoided by a proper stipulation in the contract for the furnishing of professional services. Morton’s Estate v. Ferguson, supra.

The Bank relies upon United States v. Swan, 441 F.2d 1080 (5th Cir. 1975) and two Texas authorities cited therein, Portis v. Cole, 11 Tex. 157 (1853) and Hare v. Pendleton, 214 S.W. 948 (Tex.Civ.App.—Texarkana 1920) rev’d on other grounds, 231 S.W. 334 (Tex.Com.App.1921, jdgmt. adopted) for the proposition that a personal representative cannot be held to a personal liability for necessary services rendered to the estate. We disagree. The Texas cases cited merely stand for the rule that the personal representative may elect to contract solely in his representative capacity. Moreover, the authorities relied upon by the Bank merely acknowledge the fact that ultimately the estate is liable for all reasonable and necessary services. See Brandenburg v. Dante, 49 App.D.C. 141, 261 F. 1021, 1022-23 (D.C.Cir. 1919).

Even if the cases relied upon by the Bank actually hold that a personal representative cannot be held liable in his individual capacity, in doing so it does not correctly state the current law in this State. The court in Morton’s Estate, supra, unequivocally held that, absent a stipulation in the contract, a third party could elect to hold the personal representative to a personal liability for professional services rendered to the Estate. The Supreme Court unqualifiedly refused a writ of error in the case. When it refused the writ, the Court had before it both cases subsequently relied upon by the Fifth Circuit Court in Swan. Hence, only two inferences may be drawn from the Supreme Court’s refusal of the writ of error, both of which support our position that a personal representative, unless he stipulates otherwise, may be held liable in his individual capacity for the value of services rendered. First, by refusing a writ in Morton’s Estate, the Supreme Court could have reasoned that Portis and Pendleton did not go as far as Swan later held. Second, by refusing the writ, the Court could have disapproved of language in either the Portis or Pendleton case tending to exclude a personal representative from individual liability. Regardless of our Supreme Court’s reasoning, however, we are bound by its refusal of a writ of error in Morton’s Estate.

The Bank’s reliance upon El Paso National Bank v. Leeper, 538 S.W.2d 803 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.) is misplaced because that case dealt solely with a suit brought against a temporary administrator in his representative capacity. The case at bar involves a suit brought against a past temporary administrator in its individual capacity.

In the case at bar, it was conclusively shown that the Bank had a right to offer the 1971 will (wherein it was named as independent executor) for probate. It had a duty to oppose the probate of the second will, and after its appointment as temporary administrator, was required to timely attend to all matters, including tax matters, which affected the Estate. It was undisputed that there were no stipulations in plaintiff’s contract that required it to look solely to the Estate for compensation for services furnished, which in effect, were held by the trial court to be reasonable compensation for necessary professional services to the Estate. Furthermore, the contract originated with the Bank. The plaintiff, under the undisputed facts of this case, could elect to hold the Bank personally responsible for payment of fees due for professional services rendered to the Estate.

Application of the aforesaid rules to the facts of this case does not work an injustice or hardship on the Bank since it was fully indemnified by Van Cura against any recovery which might be awarded plaintiff. Moreover, the Bank had an independent right of reimbursement against the Estate provided the services were necessary and the fees were reasonable. To that extent, the Estate likewise has not been subjected to any injustice, since it was the beneficiary of the services. Finally, the Bank was free to shield itself from individual liability by merely stipulating to that effect in its contract with plaintiff.

We do not reach the question of the extent to which a designated executor can bind the estate for services rendered at his request before probate of the will where such probate ultimately fails. Our holding that the Bank can be held to an individual liability does not necessitate any extended discussion of this point.

We have carefully considered all of appellants’ points of error. They are all overruled. We find no reversible error in the judgment of the trial court.

AFFIRMED.

      . Darlene Van Cura was originally included in the plaintiffs suit for accountant’s fees as a defendant in her capacity as executrix of the Estate. She was nonsuited, however, before the case ever went to trial. Nevertheless, she is a named appellant before this Court by virtue of the seventh point of error, which alleges error in the trial court’s order of nonsuit, as well as the fact that she is technically aggrieved by the judgment below in that it awards the bank indemnity against her in her capacity as executrix of the estate. This judgment for indemnity was based upon a prior agreed partial summary judgment which is discussed more fully in the text of the opinion. Mention of it is made here merely to clarify the position of the parties regarding the seventh point of error.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Anthony BROWNING, Appellant, v. Federico PAIZ and Hartford Insurance Group, Appellees.
    No. 1403.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Rehearing Denied Sept. 21, 1979.

      Jack K. Dahlberg, Jr., Corpus Christi, for appellant.
    Wm. R. Edwards, Edwards & Perry, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is a personal injury case arising out of a truck collision at an uncontrolled intersection in Tynan, Texas. Federico Paiz (ap-pellee herein) sued Anthony Browning (appellant herein) for damages resulting from a collision between the two trucks that the parties were driving. In response to special issues, the jury found Browning’s negligence was the proximate cause of the occurrence in question. The jury did not find Paiz guilty of contributory negligence. As a result of the jury findings, the trial court entered a judgment awarding Paiz damages totaling $280,500.00. The trial court’s judgment also included an award of $3,250.00 to the intervenor, Hartford Insurance Group, for damages to Paiz’s truck. Browning appeals.

The collision in question occurred in July 1973, at the intersection of FM 796 and a cross street in Tynan, Texas. Appellant Browning was operating a 2V2-ton, 3-axle bobtail truck owned by his employer, A. R. Johnson, and occupied by himself and a Kitty Johnson, the daughter of his employer. Browning was traveling in an easterly direction on a cross street. At the same time, Appellee Paiz, traveling north, approached the intersection from Browning’s right on FM 796. The road Paiz was on was commonly known in Tynan as “the main highway.” Paiz was alone in his truck, a 2-ton, 1972 Ford “10-wheeler.” Browning entered the intersection of the cross street and FM 796 intending to proceed across the highway in an easterly direction. When the collision occurred, the trucks were at right angles to each other. Paiz’s truck, unable to stop, struck the right side of Browning’s truck near the rear wheels. Browning’s truck traveled a short distance and rolled over, landing on its left side on the northeast corner of the intersection.

In response to special issues, the jury found in relevant part as follows: 1) that when Browning was approaching the intersection in question, Paiz’s vehicle was approaching the intersection in such proximity as to be a hazard; 2) that Browning’s failure to yield to the vehicle driven by Paiz was a proximate cause of the occurrence in question; 3) that the sum of $10,000.00 represented reasonable, necessary future medical expenses; 4) that the sum of $270,-400.00 represented a reasonable sum necessary to compensate Paiz for loss of past and future wage earning capacities, past and future physical pain, past and future mental anguish, and past and future loss of physical capacity, other than the capacity to work and earn money. The jury did not find that Paiz was contributorily negligent.

In point of error one, Appellant Browning states that the trial court erred in failing to hold that Appellee Paiz was negligent as a matter of law. The appellant contends that Paiz had a clear view of Appellant’s truck at a time when he could have avoided the collision if he had taken some action. Appellant contends that the evidence establishes conclusively that Paiz did nothing to avoid the accident but “merely dropped to his seat” and that his failure to act establishes negligence as a matter of law.

The jury returned negative answers to the special issues which inquired whether Paiz failed to keep such a lookout as a person using ordinary care would have kept and whether Paiz was driving at a greater rate of speed than a person using ordinary care would have driven. The proximate cause issues were conditionally submitted upon affirmative answers to the negligence issues. Because Appellant did not object to such conditional submission, he has waived the jury findings upon these issues unless the evidence conclusively establishes the affirmative answer to these issues as a matter of law. Little Rock Manufacturing Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (Tex.Sup.1949). See Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup.1963). Therefore, in order to sustain Appellant’s point of error one, this Court must find that the evidence conclusively established, as a matter of law, that Paiz was negligent as plead (special issues 3 & 5) and that such negligence was the proximate cause of the collision (special issues 4 & 6). See Calvert, “No Evidence” and “Insufficient Evidence” points of error, 38 Texas L.Rev. 359 (1960).

We need not reach the second inquiry (concerning proximate cause) because we are of the opinion that there is ample evidence in the record from which the jury could reasonably conclude that Paiz was not contributorily negligent as to either of the two grounds of negligence submitted to the jury. There is ample testimony in the record, including the testimony of Browning himself, which supports the jury’s negative answers to the contributory negligence special issues.

The virtually undisputed evidence established that, at the time and place of the accident in question, the lawful speed limit on FM 796 was 60 miles per hour for trucks like the one driven by Paiz. Browning was approaching the FM 796 intersection from the left-hand side of Paiz. The collision in question occurred during the daylight hours and there were no visual handicaps created by any adverse conditions. The cross road in question on which Browning was proceeding in an easterly direction, was a road used by loaded grain trucks to obtain access to a weight station.

Browning testified that, as he approached the intersection, “the only operating vehicle on FM 796 anyplace close to the intersection where this collision occurred was the truck being driven by Federico Paiz. . . .” Browning stated that there were several loaded grain trucks which were parked facing in a westerly direction along the side of the road on which he was proceeding in an easterly direction. He explained that these trucks were waiting in lines to be weighed and that there were one or two trucks on his left side (north), and four or five such trucks on his right side (south). Jo Ann Holubec, a resident of Tynan, who lived in a home near the intersection in question, testified in substance, that shortly after the accident, she observed these trucks parked to the side of the cross road, “right up to the road FM 796.” She stated that the back end of the first truck on the cross street was approximately 5 or 10 feet away from the intersection of this cross street as it crosses FM 796. Browning’s passenger, Kitty Johnson, described the parked trucks as being high-sided bobtails like Browning’s, with sides which were higher than the side windows on Browning’s truck. She stated that she was seated approximately in the middle of the front bench seat of Browning’s truck and that it was necessary for the cab of Browning’s truck to pass the back of the last parked truck before it would be possible to see in a southerly direction to look for north-bound vehicles on FM 796.

Browning stated that, immediately prior to the collision in question, he had left a load of grain at the elevator and was proceeding on the cross street on his way back to the grain fields. He stated that he was traveling at about 2 to 3 miles per hour in third low gear as he passed through the area where the trucks were parked. As he “got out of the trucks,” he “accelerated to approximately 5 miles an hour and then when I got to the intersection I did slow down there.” He stated that he continued, without stopping, looked to his right and then to his left, and seeing nothing, entered the intersection without stopping, accelerated to approximately 8 or 9 miles per hour and then shifted gears as he continued to accelerate to a rate of speed of between 12 and 15 miles per hour at the time of the collision. Browning stated that as he slowed down just prior to the time he entered the intersection, he could have “stopped on a dime.”

As Paiz was approaching the intersection, he was traveling approximately 35 to 45 miles per hour and was decelerating because, according to his testimony, he planned to pass the intersection in question and then turn right on state highway 359 toward Skidmore, Texas. Paiz saw Browning’s truck when it was “2 or 3 feet on top of the road to my left, about 10 feet.” He stated that, although he moved as fast as he could to get on his brakes, there was not enough time to stop before the collision occurred. Paiz’s skid marks were measured by the investigating highway patrolman.

Browning testified that he saw Paiz’s truck for the first time through his right window just momentarily before the collision. He stated that he had just shifted gears; his truck was located in such a position that his seat was just over the center line of FM 796; and that he continued to accelerate throughout the collision. Browning testified that the right rear wheel of his truck rolled over the front portion of the Paiz truck. This caused his vehicle to overturn.

Browning admitted in substance that: at his reduced speed (approximately 2½ miles per hour) prior to accelerating upon entry into the intersection, no one approaching the intersection in a northerly direction on FM 796 would have been able to know that he was not going to yield the right of way; that his subsequent acceleration could also have indicated a right turn to such an oncoming vehicle; that the mere fact that he accelerated would not necessarily tell another person that he planned to go straight across FM 796, rather than turn right; and that the highway patrolman who investigated the accident issued him a ticket for failing to yield the right-of-way, to which he plead guilty and paid a fine.

It is well settled that although a person is not bound to anticipate negligent or unlawful conduct on the part of another, he is not entitled to close his eyes to that which is plainly visible to a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (Tex.Sup.1958); DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (Tex.Sup.1955); Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App.—Corpus Christi 1972, n. r. e.). Here there is ample evidence in- the record from which the jury could reasonably conclude that Browning’s action in failing to yield the right of way did not become reasonably apparent to Paiz in time for Paiz to have avoided the accident. Appellant’s point of error one is hereby overruled.

In points of error two and three, Appellant brings forward legal sufficiency complaints by contending that there is “no evidence” in the record to support the submission of subsections (d) and (h) to the damage special issue (number 8) which allowed the jury to include as elements of damage, past and future loss of physical capacity other than wage earning capacity. These points of error do not challenge how much money the jury might have awarded for loss of physical capacity, but only contend that there is no evidence to support the submission of these elements of damage to the jury. In considering Appellant’s legal sufficiency points, we, of course, must review the evidence in its most favorable light to support the submission of these elements of damage in question, considering only the evidence and inferences which support such elements and rejecting the evidence and inferences contrary to these elements. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.Sup.1974); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Following this rule, we are of the opinion that these elements of damage were raised by the evidence and were properly submitted to the jury by the trial court. Paiz testified, in part, that prior to the accident in question, no part of his body kept him from getting around in any way. He stated that in the collision he hurt his leg, his neck, and his back. He testified that at the time of the trial he still continued to have trouble with his right leg and low back, and that the condition of his back does not allow him to stoop over. He testified that he can no longer drive his own truck, and that before he was injured he did things around the house, “like mow the lawn and things like that.” He further stated, in effect, that although he had tried to engage in such activities, he can no longer do so now. Paiz also testified at trial, “I can’t walk even by myself.” In addition to Paiz’s testimony, there is medical evidence concerning injuries which would contribute toward impaired physical capacity, other than the capacity to earn.

As a general rule, in order to be entitled to the submission, as a separate element of damage of impaired physical capacity other than the capacity to work and earn money, the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated. Green v. Baldree, 497 S.W.2d 342, 350 (Tex.Civ.App.—Houston 14th Dist.1973, no writ); See Riley v. Normand, 208 S.W.2d 275 (Tex.Civ.App.—El Paso 1954, no writ). Here there is some evidence of probative force in the record to support the trial court’s submission, as separate elements of damage, loss of physical capacity other than capacity to work and earn money. Although we must admit that the evidence is sparse, we are of the opinion that it is sufficient to support an allowance for these elements of damage. See Producers Chemical Co. v. McKay, 366 S.W.2d 220, 226 (Tex.Sup.1963); Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918 (Tex.Sup.1908). Appellant’s points of error two and three are overruled.

In points of error four, five, and six, Appellant complains of the amount of damages ($270,400.00) the jury awarded Paiz. In point of error four, Appellant attacks that jury’s award of damages on factual sufficiency grounds, and in points of error five and six, Appellant complains that such award “is so grossly excessive as to shock the conscience of the Court because the finding reflects that the jurors were influenced by bias, prejudice, or some other improper motive.” Appellant requests this Court to direct a remittitur either in whole or in part, but such remittitur, should be at least in the amount of $257,900.00.

In considering Appellant’s factual sufficiency point, we consider all of the evidence. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1957). In disposing of the “remittitur” points as excessive, we consider only the evidence that is favorable to the award. Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1978, n. r. e.); Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App.—Corpus Christi 1968, n. r. e.). The rule is that on appeal, the findings by the jury will not be disturbed (on the ground of exces-siveness) if there is any probative evidence to sustain the award. In the end, the Appellate Court should not substitute its judgment for that of the jury in absence of a rather clear showing of passion, bias or prejudice. After such a review of the evidence, and if the end result is that the award is so excessive that it shocks the conscience of the Appellate Court, remitti-tur would be proper. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Tex.Com.App.—1937, judg’t adopted), reaffirmed in Dallas Railway & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (Tex.Sup.1950). Sunset Brick & Tile, Inc. v. Miles, supra.

The evidence indicates Paiz’s disability resulted from two main conditions: 1) a chronic thrombophlebitis or “milkleg” involving the lower right extremity and 2) low back trouble. This evidence was presented primarily through the testimony of Paiz, Dr. George Barnes, and Dr. Joseph Klotz. Various medical records and x-rays were introduced into evidence to substantiate the testimony.

Paiz testified through an interpreter because he understood very little English. The occurrence in question occurred on July 23, 1973, and at the time of trial almost five years later, Paiz was forty-three years old. Paiz testified that he had completed the second grade before he left school at approximately the age of 12 or 13 to commence picking cotton. At the time of the occurrence in question, he was a “fieldman in vegetables” for Mr. Henry Berry. His job was to go out to Berry’s fields to ascertain when the vegetables were ready to be picked and to see that the vegetables were being picked properly. He would then report this information to his employer’s office. His job required only that he walk through the fields which were from 10 to 100 acres in size. He stated that he averaged approximately 10 to 15 working hours per day, including the time that he traveled back and forth between the fields and office. He spent about five hours per day in the fields. His job did not require that he lift vegetables since there were crew leaders who did that job. He drove Mr. Berry’s pickup truck and used Berry’s credit card to pay for gasoline expenses. Paiz had worked regularly for Berry for approximately nine years. He testified that Berry would have rehired him had he been able to work. For his work, Berry paid Paiz approximately $150.00 per week all year long, even though Paiz was required to work only about six or seven months per year. He stated that Mr. Berry still had people employed with him doing the job that Paiz used to do. At the time of the trial, Paiz stated that “I think that that job now is worth around $250 to $300 a week.”

At the time of the accident, Paiz also operated a trucking business of his own along with- his family. After the accident, he stated that he gave the trucks to his sons who have been operating the business since that time. Paiz admitted that he had been hospitalized for a previous back injury which had occurred in an accident approximately one to two years prior to the accident in question, but that he had recovered from that injury and returned to work.

As a result of the accident in question, Paiz stated that he injured his back, his neck, and his right leg in the area between his ankle and his knee. He testified that he had never had any previous trouble with that part of his right leg which was injured in this accident. At the time of trial, he testified that he was still having trouble with his right, leg and his back. He stated that he had pain in his back most of the time and that the pain was worse when he was sitting down. At the time of trial, Paiz stated that he could not even walk by himself.

Paiz waited a day or two after the accident before he went to see Dr. Mead in George West, Texas, and he made only one visit to this doctor because, as Paiz explained, when he went back to see him a second time, the doctor had moved away. After going to see a doctor in Austin, Texas, Paiz went to see Dr. Hernán in Beeville, Texas. He testified that he also saw Dr. Warren Ross twice. Paiz testified that Dr. Hernán put in in the hospital in Beeville from September 4 to September 14, 1973, and that Dr. Hernán hospitalized him a second time. Paiz testified that two weeks after the accident he tried to go back to work but that he could not. He stated that although his right leg and back still gave him trouble, his neck was better.

In June of 1977, Dr. Harris hospitalized Paiz in Robstown Riverside Hospital because Paiz’s leg became swollen and the skin broke apart. Paiz testified that he had not gotten better since he was released from the Robstown Hospital. His medical records were introduced into evidence, which indicated that Paiz was approximately five feet, nine inches tall, and weighed about 300 lbs. He stated that prior to the accident he was trying to lose weight and was under the care of some doctors who had prescribed diet and pills. He stated that he could not lose weight without using the pills. Dr. Krebethe’s records reflected that Paiz complained that his legs were hurting in November of 1972, approximately eight months before the accident. At that time, the doctor had asked him to cut down on eating and use his diet pills.

Dr. Barnes, a Board Certified Orthopedic Surgeon, stated that he had examined Paiz on two occasions. The first examination occurred on February 22, 1974, about seven months after the accident. Based upon his initial examination and findings, Dr. Barnes testified that he diagnosed Paiz as having a grade one spondylolisthesis at the lumbo-sacral level which had been aggravated by the injury Paiz received in the accident in question. Dr. Barnes further stated, in effect, that a sharp list of the torso such as Paiz experienced was generally due to some mechanical derangement or misalignment in the low back or pressure to one of the nerve roots in the lower back. In Dr. Barnes’ opinion, at the time of his initial examination, decompression surgery of the L-5 nerve roots would be required. At the time his deposition was taken‘in 1978, Dr. Barnes testified that, in his opinion, the pitting edema of Paiz’s right shin was caused by chronic thrombophlebitis, “milk leg,” due to the leg injury Paiz sustained in the accident. This edema was due to an occluded blood vessel and was not due to Paiz’s overweight condition, he said. Barnes testified further that if the condition were due to his being overweight, then both legs would have been swollen. In Dr. Barnes’ opinion, Paiz was temporarily totally disabled as of February 22, 1974.

Paiz was re-examined by Dr. Barnes on December 9, 1977. At this time, Dr. Barnes stated that Paiz was “complaining more bitterly” of low back pain and of his difficulty in standing or walking. Dr. Barnes stated that the pain Paiz was experiencing and the edema of his right lower leg were more severe. Dr. Barnes found Paiz to be markedly obese at the time of the second examination. He stated that he took no x-rays at the time of the second examination, but that he ordered additional x-rays to be taken on March 13, 1978. Dr. Barnes discussed the x-ray findings showing Paiz’s backbone and the right leg, but he testified that he had not reviewed any x-rays made on Paiz prior to the accident. A comparison of x-rays taken at about the time of the collision and those taken on or about March 13, 1978, showed that Paiz’s spondylolisthe-sis had progressed from a grade one to a grade two.

At the time of the December 9,1977, examination, Dr. Barnes “felt that Mr. Paiz continued to be totally and permanently disabled” and “that the chronic edema of the right leg will in time lead to a stasis ulceration of the skin of the right leg and this coupled with severe obesity” was contributing to Paiz’s total disability. Based upon his two examinations of Paiz, the medical history Paiz had recited, his x-rays comparisons, and his prior experience and training, Dr. Barnes stated that, in his opinion, the additional slippage that had occurred between the two examinations was “the natural progression that can occur and often does occur when additional stress or injury is applied to a pre-existing condition such as this spondylolisthesis or slippage.” Dr. Barnes further testified that, based on reasonable medical certainty, the cause of the additional slippage Paiz experienced, was “a direct result of the blow he sustained as a result of the collision.”

In Dr. Barnes’ opinion, based upon reasonable medical probability, the condition of Paiz’s right leg would be permanent and, that the prognosis for that leg was poor with the probability that Paiz would develop deep ulcerations of the skin over the area of edema which would then probably require tying off veins and skin grafting, and perhaps, amputation. In addition, he testified that the prognosis for Paiz’s lumbar spine condition was poor. He stated that the slippage of the L-5 on the sacrum may continue to occur at a steady pace, creating more pressure on the involved nerve roots which would result in pain and the inability to work or bend, lift or stoop. Dr. Barnes thought that surgery would still probably be necessary, but that it would be very hazardous. Dr. Barnes stated that Paiz’s obesity was probably glandular in origin and would require medical assistance before Paiz could lose weight. The surgery Dr.- Barnes recommended would require Paiz to first lose weight. The operation itself would then involve the removal of the defective posterior element of the 5th lumbar vertebra and decompression of the nerve roots that were having traction applied to them then by the forward slippage, followed by a bone grafting procedure over the posterior and lateral elements of the 4th and 5th lumbar segments and the 1st and 2nd sacral segments. He stated, however, that even with the surgery, there were no guarantees of results, and Paiz would “continue to have a high degree of disability even with the best possible result.” The parties stipulated that the U.S. Government Life Expectancy Tables showed a life expectancy of 29.9 years based on Paiz’s age of 43 years at the time of trial.

From all of the evidence in the record, including the testimony of Dr. Joseph G. Klotz, a consulting neurologist, the jury could reasonably conclude that Paiz suffered painful and permanently disabling injuries, including total and permanent inability to return to work, as a result of the collision in question. The jury received an instruction in connection with Paiz’s weight problem directing them not to consider any damages which were the result of Paiz’s failure to mitigate his own damages. The jury also was instructed to consider only those damages which resulted from an aggravation of any pre-existing condition. There is ample evidence in the record from which the jury could reasonably conclude that Paiz led a normal, active life, unhampered by any pre-existing condition up until the time of the collision. Paiz had a steady work record and salary until he was disabled from injuries he received. After a careful consideration of the entire record, and recognizing that the jury is vested with considerable discretion in fixing the amount of an award, we are of the opinion that the jury’s award of $270,400.00 is not against the great weight and preponderance of the evidence. Further, we are not convinced that this award is so excessive as to indicate that it was the result of passion or prejudice or other improper motive or that it was made without regard to the evidence. See Dallas Railway & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017, 1022 (Tex.Sup.1950). Appellant’s points of error four, five, and six are overruled. See Southern Pacific Transport Co. v. Peralez, 546 S.W.2d 88, 97 (Tex.Civ.App.—Corpus Christi 1977, n. r. e.); Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App.—Corpus Christi 1967, n. r. e.); Johnston Testers v. Rangel, 435 S.W.2d 927 (Tex.Civ.App.—San Antonio 1968, n. r. e.); Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.—Waco 1960, n. r. e.).

In points of error eight and nine, Appellant argues legal and factual sufficiency complaints concerning the jury’s award of $10,000.00 for future medical treatment. We consider these points together under the previously discussed standards announced by our Supreme Court in Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.Sup.1974); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965) (legal sufficiency); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1957) (factual sufficiency).

Dr. Barnes was the only medical witness to testify concerning future medical expenses. Dr. Barnes testified as to the various medical procedures he considered necessary which have been summarized in our discussion of the evidence under point of error four. The specific testimony of which Appellant complains is as follows:

Q: “Based upon your experience and training as an orthopedic surgeon and your examinations of Mr. Paiz, do you have an opinion as to whether or not in the necessary care of the results of the injury he described to you as having occurred in the collision in question will require any medical care in the future in reasonable probability.
A: Yes. I feel that the patient will require further medical care because of injuries he sustained in the collision of July, 1973.
Q: And based upon reasonable medical probability, Doctor, can you estimate at today’s prices the cost of what that medical care will be necessitated by the injuries described to you?
A: Well, they would be expected to run into the thousands of dollars, and really the way prices are escalating, I don’t know how many it would be.
Q: Could you in reasonable probability put a minimum at today’s prices of the care that you would foresee resulting from this accident in the future?
A: I would say a minimum of ten thousand.”

Appellant, in several arguments, apparently contends that Dr. Barnes’ testimony concerning the cost of future medical expenses is without probative force. We believe that the minimum cost of the future medical care would be reasonable. If the cost was the least amount, it is bound to be the amount that would be reasonable in law. We disagree and overrule this point of error. See Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.—Corpus Christi 1979, n. r. e.); and City of Houston v. Moore, 389 S.W.2d 545, 550 (Tex.Civ.App.—Houston (1st Dist.) 1965, n. r. e.).

In point of error seven, Appellant complains that the trial court committed reversible error by “refusing to allow Appellant to perfect his Bill of Exception on Motion for New Trial.” This point of error is also without merit.

Appellant is complaining of the trial court’s failure, after final judgment had been entered, to allow him to take additional testimony from Paiz concerning his weight and to take pictures of Paiz so that this Court would be able to observe his physical condition. Testimony concerning Paiz’s weight was introduced at trial through Paiz and medical witnesses. Apparently, Appellant made no attempt to secure pictures of Paiz through the normal pretrial discovery process. His bill of exception was not newly discovered evidence. Evidence offered on motion for new trial which was offered or available during the course of the trial will not be received or considered in the granting of a new trial. Highlands Cable Television, Inc. v. Wong, 547 S.W.2d 578 (Tex.Civ.App.—Austin 1977, n. r. e.); Taxpayers Association of Lubbock v. City of Lubbock, 565 S.W.2d 578 (Tex.Civ.App.—Amarillo 1978, no writ). Appellant admitted, during the hearing before the trial judge that there existed no rule or case law to support his request. We conclude no reversible error has been shown. Appellant’s point of error seven is hereby overruled.

The judgment of the trial court is AFFIRMED.

      . The Hartford Insurance Group intervened in the suit seeking subrogation of Paiz’s right to recover damages to Paiz’s truck which the Hartford Insurance Group had paid to Paiz. The record reflects that all parties entered into a stipulation as to the Intervenor’s interest.


text:
    Hermelinda BOSQUEZ, Appellant, v. H. E. BUTT GROCERY COMPANY, Appellee.
    No. 1416.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Rehearing Denied Sept. 21, 1979.
    David L. Perry, Edwards & Perry, Corpus Christi, for appellant.
    George G. Brin, Dyer & Redford, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This slip and fall ease involves an appeal from a take nothing judgment. The basic facts of the case are simple. Hermelinda Bosquez (plaintiff) was a customer in defendant’s grocery store. While shopping for groceries, plaintiff slipped on a quantity of baby food and fell, thereby sustaining personal injuries. The baby food had spilled onto the floor from a broken jar, which was found, after the accident, upon a shelf. There was no evidence of how or when the jar was broken or how the baby food came to be on the floor.

The case was tried to a jury under theories of negligence and strict liability. In its verdict, the jury absolved both plaintiff and defendant of any negligence. In response to the strict liability issue, the jury found that the jar of baby food, while not defective at the time it was placed on the shelf by defendant, was defective at the time plaintiff slipped and fell. Further, the jury found that this defect was a producing cause of plaintiff’s accident. Damages were awarded in the sum of $14,754.71. Judgment that plaintiff take nothing by her suit was rendered by the trial court. Plaintiff has duly perfected an appeal from the judgment. We affirm.

By her first point of error, plaintiff contends that the trial court erred in entering a judgment non obstante veredicto because the jury verdict is fully supported by the evidence and requires judgment for plaintiff. We disagree.

Based upon the jury’s verdict, plaintiff moved for judgment in the amount of $14,-754.71. On the same day, defendant made its own “Motion for Judgment" which contended that the findings of the jury established that plaintiff had failed to prove any cause of action. Judgment was rendered by the court in favor of defendant based upon this “Motion for Judgment.”

As a threshold matter, we agree with defendant that the judgment before us is not a judgment non obstante veredicto. Ostensibly, the judgment was rendered in conformity with the jury’s finding that the jar of baby food was defective at the time plaintiff fell. Furthermore, defendant does not complain of that finding. In point of fact, defendant concedes in its brief that the jar of baby food was defective at the time of plaintiff’s fall. The issue before this Court, therefore, is not whether the trial court erred in disregarding the jury’s findings, but whether those findings, accepted as true, can support a judgment for plaintiff as a matter of law. We hold, as a matter of law, that the jury’s findings cannot support a judgment for plaintiff under the theory of strict liability.

In Shopper’s World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.) this Court was faced with deciding the crucial time at which a user or consumer must establish that a defect existed in the context of a self-service grocery store format for purposes of recovery under strict liability. In that case, plaintiff was injured when she slipped on some liquid soap that had leaked from a bottle which she had just taken from a grocery store shelf and placed in her shopping cart. In construing Restatement (Second) of Torts § 402A(l)(b), which provides that a seller is liable if the defective product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold,” this Court held that the term “sold” was equivalent to “the time when the party seeking to hold a seller liable picks up an item for handling or purchase.” Thus, where a customer was injured by a defective product while shopping at a self-service store the key issue was whether the defect existed at the time the product was removed from display.

In the case at bar, the jury found, and both sides agreed, that the baby food jar was in a defective condition at the time plaintiff slipped and fell. Plaintiff contends that, under the rule enunciated in Villarreal, a “sale” of the jar of baby food took place sometime after the defect arose (when the jar was broken, leaving a residue of baby food on the floor). Further, plaintiff contends that she was a bystander and under the rule announced in Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.Sup.1969), she should recover for injuries sustained by her as a result of the sale of the jar of baby food while in its defective condition.

We have no quarrel with plaintiff’s status as a bystander. We disagree, however, with her application of Villarreal to the facts of this case. Plaintiff had the burden of proving that the defective product reached her “without substantial change in the condition in which it [was] sold.” There is no evidence as to when or how the baby food jar became defective. Most importantly, we do not know if or when a “sale” of the jar ever took place.

We could assume for purposes of argument that the jar was broken before it was ever taken from the shelf (purchased) by another customer. That, however, is sheer speculation. It is just as possible that another customer removed the jar from the display (purchased the product) and dropped it (rendered the jar defective) such that no defect ever existed at the time the product was sold. In such a case the product would not have reached plaintiff in substantially the same condition it was in when it was sold to the third party, if such a sale was, in fact, made. Hence, the jury finding that the jar was defective at the time plaintiff slipped only established a defect sometime after a sale, if any, of the product.

Plaintiff’s theory of strict liability and her request that this Court extend its rule in Villarreal to the facts of the case at bar, constitute an attempted end run around the well established rule of liability when injury is caused by a foreign substance upon a floor which rendered it slippery or unsafe for use. That rule was ably set out by Justice Norvell in H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App.—San Antonio 1949, writ ref’d n.r.e.), wherein it was held:

“In order to establish liability against the defendant operator of the store it is necessary to show:
1. That the defendant put the foreign substance upon the floor, or
2. That the defendant knew the foreign substance was on the floor and wil-fully or negligently failed to remove it, or
3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.
See Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Woolworth v. Goldston, Tex.Civ.App., 155 S.W.2d 830; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470.”

The jury in the present case failed to find that defendant’s employees knew of the baby food on the floor before plaintiff’s slip and fall. Further, there were no findings that defendant’s employees placed the baby food on the floor; there was no finding of how long the baby food had been on the floor prior to plaintiff’s fall. Thus, to hold that plaintiff may recover based solely upon the mere existence of a defect at the time of the accident would fly in the face of settled precedent in grocery store slip and fall cases. A storekeeper is not an insurer of the safety of the invited customers who enter the store for the purpose of shopping. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940 (1956); Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App.—Dallas 1962, writ ref’d n.r.e.); Newton v. General Manager of Scurlock’s Supermarket, 546 S.W.2d 76 (Tex.Civ.App.—Corpus Christi 1977, no writ). Plaintiff failed to prove a case of strict liability, Plaintiff’s first point is overruled.

By her points of error 2 through 9, plaintiff complains of the trial court’s refusal to submit some of her requested issues as well as an accompanying instruction. In disposing of these points, we adhere to the settled rule that only controlling issues raised by the pleadings and evidence should be submitted to the jury. Rule 277, T.R.C.P.

Plaintiff’s requested issues and instruction essentially fell into three groups. The first group, consisting of requested issues 1A and 2 accompanied by requested instruction 2, sought to establish liability of the defendant for knowingly allowing foreign food substances to be on the floor so as to create an unreasonable risk of harm. The second group, consisting of requested issues IB, 1C, 2, 3, 4, 6, 6A, 7 and 8 accompanied by requested instruction 2, sought to establish liability of the defendant for failing to use some type of skid-resistant floor covering in its store. Under this theory an unreasonable risk of harm would be created by the combination of slippery food products and the store’s resilient tile floor covering. Finally, the third group, consisting of requested issues 9, 9A, 10 and 11, sought to establish liability of the defendant for failing to inspect its floor for the presence of food substances and failing to warn plaintiff of the danger of foreign food substances on its floors.

The duty which an occupier of premises owes to an invitee is that which was summarized in Restatement (Second) of Torts § 343 (1965) and adopted by our Supreme Court in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.Sup.1972):

“§ 343. Dangerous Conditions Known to or Discoverable by Possessor
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. Restatement (Second) of Torts § 343, Comment b (1965).”

The import of Section 343 of the Restatement, and its adoption by the Court in Adam Dante, was further explicated in the supermarket context in Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.Sup.1975). There, the Supreme Court, in its cautionary explanation that a finding of no danger will absolve the supermarket of any duty, noted that whether a condition of the floor constitutes a danger is a “function of reasonableness.” 518 S.W.2d, at page 537; Hence, if an ordinarily prudent man could foresee that harm was a likely result of a condition, it would be a danger. 518 S.W.2d, at page 537; Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970).

Plaintiff’s evidence consisted of live and documentary evidence, including comparative accident frequency reports of a statistical nature, indicating the common occurrence of slip and falls primarily attributable to foreign food substances on the floors of grocery stores, including defendant’s store in question. There was further testimony of alternative floor coverings which offered increased skid-resistance and resistance to breakage. In essence, all of plaintiff’s evidence was calculated to show the significance of the choice of floor coverings to hazard prevention, the availability of skid-resistant floor coverings, the foreseeability in general of foreign food objects remaining on the floor and the lack of any policy insuring adequate inspection or warning in defendant’s store.

Viewing the evidence in a light most favorable to the plaintiff, we cannot say that defendant owed a duty to plaintiff to use a non-skid floor surface because there is no evidence that the particular construction and condition of the resilient tile floor would have served as a suggestion or warning to defendant that such a floor presented a prohibitive degree of danger under the particular facts of this case. See Methodist Hospital v. Hudson, 465 S.W.2d 439 (Tex.Civ.App.—Houston [14th Dist.], writ ref’d. n.r.e.). Furthermore, even assuming that such a duty existed, there was no evidence that the failure of defendant to use a nonskid floor covering was, under the circumstances of this case and in this particular store, negligence which was a proximate cause of plaintiff’s injuries.

Plaintiff’s argument concerning the duty to warn appears to encompass a duty to warn of potential dangers because some food products in the store might sometime fall on the floor and become slippery, as well as a duty to warn of actual dangerous conditions which do not presently exist, particularly where the potential dangers, their causative factors and physical manifestations are as apparent to invitees as land occupiers.

There is nothing in the record to suggest any duty of defendant in this particular case to warn plaintiff of the baby food on the floor. Specifically, there was no evidence as to who put the baby food on the floor, or how long it had been there. The facts do not charge the defendant with any actual or constructive knowledge of the presence of the baby food on the floor. Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520 (Tex.Civ.App.—Waco 1960, writ ref’d); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App.—San Antonio 1949, writ ref’d n.r.e.). The question of knowledge of the defendant’s employees of the baby food being on the floor was largely covered by special issue number 1, which was answered favorably to defendant. Plaintiff’s points 2 through 9 are overruled.

By her tenth and eleventh points, plaintiff complains of the trial court’s overruling of her objections to defendant’s jury argument and sustaining of defendant’s objections to her own jury argument. During the course of plaintiff’s opening argument to the jury the following exchange between Mr. Perry, the attorney for plaintiff, and Mr. Brin, the attorney for defendant, took place:

“MR. PERRY: And one of the things that you can take into considering in deciding this issue is that the defendant, H. E. B., according to their own answers to their own interrogatories have four store employees who knew what the condition of the floor was before Mrs. Bosquez fell, only one of whom testified, three of whom did not.
MR. BRIN: Your Honor, that is improper jury argument. We object to it. Those witnesses are perfectly available by subpoena by Mr. Perry. It’s improper for him to comment on the failure of them to be called.
COURT: Objection overruled.
MR. PERRY: Now every one of those people was their employee, we know logically and simply, and there is a fifth one who is the husband of one of their employees. The people are Beto Gonzalez, the night manager; Larry Mendoza, Bobby Mora — testified, but the people who did not — Beto Gonzalez, the night manager; Larry Mendoza; Mrs. Tim Gonzalez and Mr. Tim Gonzalez, who is her husband. According to their answers to interrogatories, all of those people knew of the condition of the floor.
Now Bobby Mora basically said he didn’t know about it. He hadn’t seen it; he didn’t know how long that baby food was there. I think you and I all know that if the employees’ own testimony from H. E. B. would have been favorable to them, it would have been presented to you either by live testimony or by deposition or in some fashion, but it wasn’t.”

During defendant’s reply argument counsel for defendant rhetorically responded to plaintiff’s opening remarks and the following exchange took place:

“MR. BRIN: Now here’s a lady that has come into court and has asked for a great deal of money, as she has every right to and you have been asked to find a yes answer in response to that interrogatory on the basis that we didn’t call several people whose names were read to you after the close of all the evidence, when Mr. Perry asked leave to re-open — and how long had David Perry known about these people — more than two years.
MR. PERRY: Well, Your Honor, I object to him talking about me not calling people that he knows I can’t even talk to under the Canons of Ethics without going through his law firm. Those people are not my employees; they are not my clients. They are some of their employees that I don’t even know the names of because they weren’t listed in the answers as even being employees until Mr. Mora told us they were there, and I object to counsel commenting on us not calling people that are not peculiarly subject to the control of the plaintiff. And I point out to the Court that that argument is in error under Sanders against Saint Paul.
COURT: I will overrule the objection.”

Finally, during rebuttal, counsel for plaintiff attempted the following argument:

“You want to know why I didn’t go and talk to those people — I didn’t know who they were; I didn’t know their names, addresses, where they lived. I don’t know anything about them. I didn’t know they existed until Mr. Mora stood up here on the stand and said they existed. But H. E. B. would have had everyone of them in here if their evidence would have been favorable because they have their names and addresses and phone numbers. You want to know the reason I didn’t go to talk to Beto Gonzalez? Because under the rules of the Canons of Ethics that lawyers operate under, I’m not allowed to go and talk to an employee of an opposing party without going through their lawyer. I can’t go over and take a statement from them; I can’t go over and ask them what happened because their lawyer is the person who is entitled to go talk to them, and it would be a violation of the Canons of Ethics for me and/or anybody employed by me or my firm to go and do that. That’s the reason the law provides that you can consider the failure of a party to call a witness that is peculiarly within their knowledge and within their control as evidence that that testimony would be unfavorable to them.
MR. BRIN: We’re going to object to the statement to this jury that these people were peculiarly under our control. Two of them were not our employees. Everyone of them was available for subpoena. It’s not true to say that they are peculiarly under our control.
COURT: Objection sustained.
MR. PERRY: The Court’s ruling that I cannot argue that their employees, the former employee, and the wife of an employee was within their control.
COURT: He has just stated that some of them didn’t even work there, counsel. MR. PERRY: Everyone I have mentioned, I am making argument about the people that according to the Interrogatories I read were employees at the time, except for one who was the wife of an employee.
COURT: I also sustained his objection about the deposition.”

Our Supreme Court has very recently discussed the law relating to improper jury argument. In Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835 (Tex.Sup.1979), the Court said:

“In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. 3 McDonald, Texas Civil Practice § 13.-17.2 (1970). There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596 (1953). Rules 434, 503, Tex.R.Civ.P.”

Applying the rules set out in Reese to the facts of the case at bar, we do not find any reversible error in the trial court’s rulings relating to the jury arguments. Plaintiff’s points 10 and 11 are overruled.

AFFIRMED.