author: WARREN, Justice.

text:
    Robert HAZELWOOD, Appellant, v. Patricia Lee JINKINS, Appellee.
    No. 17276.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.

      Barlow, Lacy, Smith, Pollard, Donald D. Lacy, Jr., Houston, for appellant.
    Barker, Lain, Schwab, Tulloch & Blair, Elmo Schwab, Galveston, for appellee.
    Before WARREN, EVANS and WALLACE, JJ.
   WARREN, Justice.

Robert Hazelwood (Respondent) appeals from an order modifying his obligation for the support of one minor child of Respondent and Patricia Lee Jinkins (Petitioner).

On October 31, 1969, Petitioner and Respondent were divorced. Petitioner was awarded custody of the minor child, two year old, Hunter Chunn Hazelwood and Respondent was ordered to pay $100.00 per month to Petitioner for child support.

At the time of the divorce Respondent was a resident physician in psychiatry with an annual income between $15,000.00 and $18,000.00 per year and an estimated net worth of between $5,000.00 and $10,000.00. Shortly after the divorce Respondent completed his residency and has worked as a psychiatrist since that time.

At the time of the hearing Respondent owned a medical clinic valued at $100,000.00 in which he worked. He owned a home valued at $175,000.00, a half interest in a home in Colorado, an airplane and investments in several limited partnerships. His net worth was $983,000.00 as evidenced by a financial statement dated March 30, 1978. His income during 1975 was $117,500.00, for 1976 it was $174,000.00, and in 1977, $140,-000.00.

After an extensive hearing the court modified the original divorce decree and increased Respondent’s monthly child support obligation from $100.00 to $875.00 per month.

Respondent claims the trial court erred in (1) refusing his request for an additional and more specific finding of fact (2) ruling that the court was without jurisdiction to make the amended finding of fact and (3) increasing the child support from $100.00 to $875.00 per month.

The trial court made findings of fact and found among other things that the circumstances of Respondent had materially and significantly changed and that he had demonstrated an earning capacity in excess of $60,000.00 since 1973. Respondent was dissatisfied with this finding and timely requested the court to find that:

The circumstances of the respondent, Robert E. Hazlewood, have also materially and substantially changes (sic) in that he had demonstrated an earning capacity and ability since 1973 in the following amounts: 1973, $67,500.00 with adjusted gross income of $67,373.00; 1974 $73,-844.00 with adjusted gross income of $74,-052.00; 1975, $117,500.00 with adjusted gross income of $108,925.00; 1976, $174,-000.00 with adjusted gross income of $162,500.00.

A hearing was set on the proposed additional finding for July 20, 1978, at which time the court refused the request, reasoning that Rule 298 Tex.R.Civ.P. deprived it of jurisdiction to act on the proposed finding.

The pertinent portion of Rule 298 reads:

“After the judge so files original findings of fact and conclusions of law, either party may, within five days, request of him specified further, additional, or amended findings; and the judge shall, within five days after such request, and not later, prepare and file such further, other or amended findings and conclusions as may be proper, whereupon they shall be considered as filed in due time.” (emphasis added)

Upon receiving a timely request for additional findings of fact or conclusions of law it is the mandatory duty of the trial court to file them. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). The trial court must make findings on the points requested if such points relate to the ultimate or controlling issues in the case. Groves v. Rosenthal, 371 S.W.2d 792 (Tex.Civ.App.—Houston, 1963, writ ref’d. n. r. e.).

The additional finding of fact requested by Respondent was not in conflict with the initial finding but, instead, wa/ more specific, i. e. that the exact amount^ earned from the year 1973 through the yeaf 1976 be stated in specific dollar amount^ rather than the general finding that Re* spondent had earned in excess of $60,000.00.] Respondent argues that the court’s finding!, denies him the opportunity to make a prop-' er presentation of his case on appeal and ’ further denies him the opportunity to rely on these findings as res judicata in future controversies between these parties. We find nothing in the law to support Respondent’s second contention. The finding that Respondent earned in excess of $60,000.00 during the years stated would not prevent; him in future hearings, if such are neces-j sary, to show the amount in excess of $60,-000.00 that he actually earned. An examination of the statement of facts demonstrates unequivocally and without contradiction the Respondent’s annual income for each year in question. Because of the un-controverted nature of the record, we similarly find that the Respondent’s ability to present his case on appeal has not been impaired.

The Respondent argues that the trial court abused its discretion in increasing the child support obligation from $100.00 per month to $875.00 per month because there was no evidence, or in the alternative, insufficient evidence to show that the circumstances of the child and his parents have materially and significantly changed since the original order.

The record shows that the circumstances of the father, mother and child have changed materially and significantly since the divorce in 1969. The child, who was only two years of age at the time of the! divorce, is now ten years of age and more expensive to rear. The net worth of the Respondent has increased dramatically from between $5,000.00 and $10,000.00 in 1969 to approximately $983,000.00 in 1978. Respondent’s income had increased from between $15,000.00 and $18,000.00 to over $140,000.00 in 1977. The child now travels _ __ _ _ _ The child and his mother dine out and at-frequently, attends a private school, attends summer camp and takes tennis lessons. tend a show or some form of entertainment at least once per week. The trial court found that the necessary expenses of the minor child were $1,000.00 per month, which is amply supported by the testimony of Petitioner. Although some of these items are luxuries, they are not inconsistent with the station in life enjoyed by the parents.

A trial court is justified in requiring parents to provide a standard of living for their children commensurate with the standard of living which they have and will continue to enjoy. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.-Houston [1st Dist.], 1974, no writ) Respondent alleges the trial court abused its discretion in requiring him to pay $875.00 per month in addition to $125.00 per month contractual alimony which Respondent agreed to pay Petitioner at the time of the divorce. The court in its findings of fact expressly stated that this had been taken into consideration and apparently considered it as an obligation of Respondent arising out of the settlement of the community property at the 'lime of the divorce. The requirement that parents have an equal duty to support their children does not mean that their obligations are mathematically equal. Friedman v. Friedman, 521 S.W.2d 111 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Instead, the equality is tempered by the relative capabilities of the parties, Jackson v. Jackson, 552 S.W.2d 630 (Tex.Civ.App.—Austin 1977, no writ), and the relative values of the non-monetary services rendered by each of the parents. Labowitz v. Labowitz, 542 S.W.2d 922 (Tex.Civ.App.—Dallas, 1976, no writ). Respondent’s net worth is approximately twice as much as the Petitioner’s. Respondent’s demonstrated earning capacity greatly exceeded the Petitioner’s. There is also uncontroverted evidence that the Petitioner renders valuable non-monetary services to the child. Based upon the record we cannot conclude that the trial court abused its discretion in apportioning the parents’ financial obligation to support the child.

Finally Respondent argues that the court abused its discretion in increasing the child support to $875.00 per month because the testimony revealed that his monthly payments on various investment servicing debts was $4,722.24 per month and if his projected income declined as predicted to $5,700.00, per month then he would have only $977.76 on which to live and to pay the child support. The Respondent testified that he intended to bring in another doctor and decrease his practice, which would in turn reduce his income to the approximate amount stated above. Respondent relies upon Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston, 1965, writ ref’d n. r. e.), for the proposition that debt service obligations should be considered in setting child support and that child support payments should not prevent a party from making legitimate investments that are likely to be productive. While this proposition is true, it should not operate as a device to deprive a child of the support to which he or she is entitled.

The duty to support is not limited to parents’ ability to pay from current earnings, but extends to his or her financial ability to pay from any and all sources that might be available. Ondrusek v. Ondrusek, 561 S.W.2d 236 (Tex.Civ.App.—Tyler 1978, no writ). The trial court, in determining an appropriate amount of support to be contributed by Respondent, could consider the comparative earnings, net worth, non financial contributions, and the respective obligations of each of the parents.

The trial court has broad discretion to determine child support and the reviewing court cannot substitute its judgment for that of the trial court. Labowitz v. Labowitz, supra at 933; Schwartz v. Jacob, supra at 15.

There being no abuse of discretion shown, the case is affirmed.


source: Caselaw Access Project

author: DOYLE, Justice.

license: Public Domain

text:
    Donley H. WILLIAMS et ux., Appellants, v. Dock HENDERSON, Jr., Appellee.
    No. 17270.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.
    Rehearing Denied April 12, 1979.

      M. Wesley Plummer, Houston, for appellants.
    Joe Edwin Naron, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

Appellants, Donley H. Williams et ux., (Williams) bring this suit against appellee, Dock Henderson, Jr., (Henderson) to recover a deficiency after a trustee’s sale of property securing a note.

In September, 1969, Williams and Henderson entered into a real estate transaction. As part of this transaction, Henderson executed a promissory note in the amount of $15,711.26. Although the note recited that it was secured by a vendor’s lien reserved in the warranty deed, no deed was introduced into evidence. The note was additionally secured by a deed of trust executed by Henderson to M. W. Plummer, Trustee (the trustee). In the fall of 1974, Henderson defaulted on the note, leaving a contested balance of approximately $13,-021.96. During this same period of time, possession of the land was also controverted as Williams had possession prior to the trustee’s sale. There was conflicting evidence about destruction of improvements on the land.

In 1975, the trustee instituted foreclosure proceedings against Henderson, and the land was sold back to Williams at the trustee’s sale for $5,000. The trustee, without stating any amount, deducted the expense of the sale and depreciation from the $13,-021.96 balance and arrived at a deficiency figure of $9,062.95. There was no evidence offered to show how the expense of the sale and the depreciation were determined. Suit was brought to recover this deficiency.

Trial to the court without a jury resulted in a take nothing judgment from which this appeal was taken.

Although appellants list two points of error, they are in effect only one, and we shall address them as such. Appellants contend that the trial court erred in failing to find that appellants proved a deficiency after the trustee’s sale. The trial court made the following findings of fact and conclusions of law:

“FINDINGS OF FACT

1. Defendant, Dock Henderson, executed a note, (Plaintiff’s Exhibit 1) payable to Plaintiff’s, Donley Williams, and wife, Lillie B. Williams.

2. Said Defendant executed a Deed of Trust (Plaintiff’s Exhibit 3) securing said note.

3. A Trustee’s sale was held on March 4, 1975, under said Deed of Trust.

4. There is either no evidence, insufficient evidence, or conflicting and insufficient evidence and thus, Plaintiffs did not establish:

(a) The amount due and owing by Defendant to Plaintiffs, under said note, at the time of the Trustee’s Sale;
(b) The amount paid for the property at the Trustee’s Sale;
(e) The Trustee, Plummer, deeded said property to the purchaser;
(d) The amount of deficiency, if any, owed by Defendant, to Plaintiffs;
(e) Notice given to Defendant of any amount Defendant was delinquent in payments, where note was being accelerated, or what amount was due upon acceleration and maturing of the note.

CONCLUSIONS OF LAW

This Court has jurisdiction and venue over this cause of action.

Plaintiff failed to prove the amount of any deficiency prayed for in their petition.

Plaintiffs failed to prove that Trustee, M. W. Plummer, conveyed his Trustee’s interest in subject property to Plaintiffs.

Plaintiffs failed to prove a lawful Trustee’s Sale and foreclosure.

The Court concludes Plaintiffs are not entitled to judgment for any deficiency alleged in this petition.”

The findings of fact are binding on the appellate court unless there is no evidence of probative force to support them or unless they are so against the great weight and preponderance of the evidence as to be obviously wrong. Bass v. McGlung Roofing Co., Inc., 575 S.W.2d 342 (Tex.Civ.App.—Fort Worth 1978, no writ); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Therefore, it becomes the duty of this court to consider all of the evidence adduced at the trial to determine if it is insufficient to support the findings of fact as set out in 4(d).

The general rule is that a holder of a note secured by a mortgage may at his option sue on such note and recover a personal judgment against the maker. It is not mandatory that he resort to his security. 39 Tex.Jur. Sec. 204; Wallace v. Briers, 405 S.W.2d 95 (Tex.Civ.App.—Eastland 1966, no writ). However, if the mortgagee undertakes to sell the security under the power given in a deed of trust, he must show that he has made a valid foreclosure sale. Further, he must show that he had given credit to the mortgagor for the amount received at the trustee’s sale and any other legitimate credits before he is entitled to a judgment for any deficiency remaining on his note. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 (1942); Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965). Additionally, in order to recover in this case, Williams would have to prove the amount due on the note at the time of foreclosure, that proper notice of acceleration had been given and the amount of the consideration received by the trustee at the foreclosure sale.

As shown by the following excerpts, neither Williams nor Henderson knew the amount owing on the note at the time of the trustee’s sale.

(By Williams)

Q Mr. Williams, you said you had a bill or a business relationship with the defendant, Dock Henderson, and by that you sold him some property?
A Yes, sir.
Q And he owed you some fifteen thousand and some odd dollars?
A Yes, sir. That is true.
Q Did he make payments on this?
A Yes. I don’t know exactly how many.
Q I am just asking if he made a payment or two.
A I do not have that information.

(By Henderson)

Q What was the amount of money due and owing on such account on the 9th day of September, 1974?
A I do not have that information.

The record does not show an exact figure for the amount paid at the trustee’s sale and the trustee states he deducted an unspecified amount for expenses and depreciation. The trustee states that “Mr. Williams was the highest bidder. He gave $5,000 for the property and we found there was $9,062.95 due and owing and we so notified Mr. Henderson and we were making a demand for the difference.” The record is silent as to what and how much the expenses and depreciation were. Neither can this court determine that a sale was ever made to Williams by the trustee, nor by Henderson to the trustee. Relevant testimony shows the following:

(By Trustee, Plummer)

Q Mr. Plummer, the truth of the matter is that there was never a deed executed to Dock Henderson was there?
A I deny that.
Q But surely in the preparation of this suit, you considered a deed from Mr. Williams to Mr. Henderson as being evidence?
A No, sir. He signed a note and he was obligated and if he got one and there was no evidence that he did not receive it. He wanted the property and enjoyed it for five years.
Q Are you admitting there was never any deed to Dock Henderson?
A No I am saying a deed was executed.
Q Did you search the deed records of Harris County to find a deed to Dock Henderson from Mr. Williams prior to this trial?
A I have made no investigation as to the title of the property. I have not.
Q The deed of trust has been introduced in evidence is not validated if Mr. Henderson had never received a deed because he would have nothing to convey to you as to that deed because it is obviously from a term of years of one year to 10 years.
A That’s correct, except it would have some bearing if there is a loss or misplaced deed and if Mr. Henderson received a deed and he failed to post it on the records and later on if we foreclosed on the interest, we would have been in trouble with Mr. Williams, but considering this is a proper instrument to have acted under because I know that the transaction did go through.

The testimony is unclear as to whether Henderson received any notice about his delinquency on the note, whether the note was being accelerated, or what amount was due upon acceleration and maturing of the note.

(By the trustee, Plummer)

Q Mr. Plummer, do you have any copies of any written notice ... to Mr. Henderson before making a demand on the note?
A I believe I do. I think I have a written copy. Yes sir. I do have it
All right may I see it? or
Here it is. <!
Now, do you have a green return card on this letter? <y
The file does not reflect that I have a green return card. I may and may not have .
The date of the letter was January 15, 1975? ©
It could have been. It is possible. !>
As I understand it, the letter of the foreclosure to the Constable’s office was as early as January the 27th? i©
Yes, sir. >
You don’t make mention in this letter anywhere when the default was made by Mr. Henderson, do you? ©
Yes, I say you are far behind. <¡
But you do not mention a date or time? c?
No. <
Just very general terms? <y
That’s right. I just said he was behind, that right. <

Williams has cited several cases which hold that the execution of a note, not properly denied, is prima facie evidence of the amount due. Hagar v. Texas Distributors, 560 S.W.2d 773 (Tex.Civ.App.—Tyler 1977, ref’d, n.r.e.); Hensley v. Jones, 492 S.W.2d 283 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). In the Hensley case, supra, Judge Tunks states: “The note on its face established that its due date was past and, absent any proper affirmative plea of payment (Texas Rules of Civil Procedure-95), showed the amount that was due thereon.” However, while the cases cited by Williams correctly state the general rule applicable where notes are regular on their face and are uncontested, they are not in point with the facts of the case before us. By timely pleading, Henderson alleges payment as an affirmative defense. The burden then rested on Williams to prove his case. The trial court’s unchallenged findings of fact and conclusions of law were against Williams. We are bound by such findings and conclusions. Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.); McKenzie v. Carte, 385 S.W.2d 520, 530 (Tex.Civ.App.— Corpus Christi 1964, writ ref’d n.r.e.); Zapata County v. Llanos, 239 S.W.2d 699, 701 (Tex.Civ.App.—San Antonio 1951, writ ref’d n.r.e.). We find that the trial court’s findings and conclusions are supported by the evidence.

The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    TEXAS PIPE BENDING COMPANY, Appellant, v. Anson C. GIBBS, Appellee.
    No. 17313.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.
    Rehearing Denied April 12, 1979.
    Writ Refused July 18, 1979.

      Law Offices of Kenneth J. Will, Michael W. Melton, Houston, for appellant.

      Morgan, Dudensing, Webb, Tullís & Jensen, Kurt Arbuckle, Charles W. Tullís, and Paul Jensen, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an action for the damages caused by personal injuries suffered by Anson Gibbs when he fell from a truck loaded with pipe on the premises of Texas Pipe Bending Company in Houston, Texas. The Employers Mutual Liability Insurance Company of Wisconsin intervened seeking to recover Worker’s Compensation benefits paid to Mr. Gibbs.

The jury found that the injuries sustained by Gibbs were proximately caused by the negligence of Texas Pipe Bending Company. Based upon the verdict and certain stipulations, judgment was rendered for Gibbs in the amount of $61,933.00 and for the insurance company in the amount of $9,746.10.

On this appeal Texas Pipe Bending Company asserts that the trial court erred in overruling its hearsay objection to the testimony of Eddie Stewart and in submitting a res ipsa loquitur instruction to the jury in connection with special issue number one. The appellant also submits that there is no evidence or, in the alternative, insufficient evidence to support the answer made by the jury to this special issue. Finally the appellant asserts that the .trial court erred in refusing to submit its requested special issues concerning proper lookout.

Anson C. Gibbs was employed by Consolidated Freightways as a truck driver. On June 4, 1970, he drove a Consolidated Freightways truck to the yards of the Texas Pipe Bending Company and signed in at the guard gate. He then went to the shipping department and informed someone in that department that he was with Consolidated Freightways and was there to pick up a load of pipe. A man operating a gin pole truck and his helper loaded the Consolidated Freightways’ truck with the pipe. Mr. Gibbs did not know the names of these men, but he had seen them working there before.

Before the loading operation began, the gin pole operator placed six heavy pipe stakes in brackets built on the truck to prevent the pipe from falling off the truck during the loading operation. After the loading was completed, Mr. Gibbs went into the office and got a bill of lading. He returned to the truck and climbed on top of the load in order to boom it down. This operation consists of tightening and securing chains over the load. This operation prevented the pipe from falling off the truck when the stakes were removed. After Mr. Gibbs finished booming down the pipe at the front and the rear of the truck, he went to the chain in the middle of the truck. While he was stooped over working with this chain, with his back to the gin pole operator, he was knocked from the truck.

There was testimony that the gin pole operator and his helper began the operation of removing the stakes from the truck while Gibbs was working on the boomer chains located in the middle of the truck. A cable would be wrapped around the stake by the helper and the gin pole operator would then use his hoist to remove the stake. Mr. Gibbs testified that just as he got the chain hooked “they yanked that thing out there.” He saw a shadow coming at him. He testified that the stake struck him on the head.

Mr. Eddie P. ■ Stewart, terminal manager for Consolidated Freightways was notified of the accident. He drove out to the scene of the accident and found Mr. Gibbs sitting under a tree on the pipe lot. He talked to Mr. Gibbs and found that he was hurt, but that he did not know how he had been injured. After eliciting this information the attorney for Mr. Gibbs asked Mr. Stewart: “and so then you had a conversation with whom?” The attorney for the defendant then objected on the ground that “it is hearsay and not responsive. It is not res gestae.” The court overruled the objection. Mr. Stewart then testified that he had a conversation with a man there on the premises who said that he was operating the vehicle that had the gin pole on it and they were loading pipe. He did not know this man’s name. In answer to a question “do you know who he worked for”, Mr. Stewart answered: “he said he worked there”. The attorney for the defendant then asked the court to instruct the jury to disregard the answer on the ground that it was hearsay and not res gestae. The court overruled the question and denied the request. Thereafter without further objection he detailed his conversation with this man and testified that while Mr. Gibbs was on the float trailer booming down the pipe the gin pole got loose. Mr. Stewart was again asked whether the man said he worked for Texas Pipe Bending Company and an objection was made to the effect that the answer would be inadmissible to prove agency. This objection was overruled. Again Mr. Stewart was permitted to testify without objection that the man told him “the gin pole got loose and knocked him off”. At the time he testified, Mr. Stewart was no longer employed by Consolidated Freight-ways Company.

The objections to Mr. Stewart’s testimony on the ground that it was hearsay were lodged at answers to questions designed to produce information that the unidentified gin pole operator was employed by Texas Pipe Bending Company. In connection with special issue number one, the trial court included in its instruction to the jury the phrase “if you find that the use of the gin pole truck causing the accident was under the management and control of Texas Pipe Bending”. In effect the jury was instructed that the accident was caused by the use of the gin pole truck. While an objection was made to the charge on the ground that it was a comment on the weight of the evidence, no point of error complaining of this has been presented in appellant’s brief.

Unless it is admissible under an exception to the hearsay rule, hearsay evidence even though admitted without objection has no probative value. If no objection is made, the admission of hearsay evidence does not constitute reversible error.

Agency cannot be shown by the declarations or statements of the alleged agent or servant standing alone; but where there is evidence sufficient to show the fact of agency or employment prima facie, declarations or statements of the alleged agent are admissible in corroboration. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941).

In a negligence action in which the defendant’s liability to the plaintiff depends upon proof of a master and servant relationship between the defendant and a third person, such relationship is prima facie established by showing that the alleged servant was performing services peculiar to the defendant’s business or affairs on or about the latter’s property. McAfee v. Travis Gas Corp., supra; Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416 (1936).

While it is asserted that the identity of the person operating the gin pole truck on the occasion in question is unknown so that he cannot be produced as a witness, there is no evidence, direct or circumstantial, to contradict Gibbs’ testimony that the accident occurred on the premises of Texas Pipe Bending Company and that the loading operations were conducted by two men using a gin pole truck. Since there is no evidence to show that the operator of the gin pole truck was not an employee of Texas Pipe Bending Company, the statement he made to Eddie Stewart that he was employed by Texas Pipe Bending was admissible. Ochoa v. Winerich Motor Sales Co., supra; Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940); Texas State Bank v. Elliott, 533 S.W.2d 404 (Tex.Civ.App.—Beaumont 1976, no writ).

By special issue number one, the trial court asked the jury whether the appellee’s fall was caused by the negligence of the appellant. In connection with this issue he gave an instruction on res ipsa loquitur. The appellant objected to the issue on the ground that there was nothing in the plaintiff’s pleading indicating that he would rely on the res ipsa loquitur doctrine.

The plaintiff does not necessarily lose his right to rely on the res ipsa doctrine by pleading specific acts of negligence. If he pleads specific acts of negligence only, his proof is limited to those specific acts. If his pleading gives fair notice that he is not relying solely on specific acts but instead intends to also rely on any other negligent acts reasonably inferable from the circumstances of the accident, his pleading is sufficient to invoke the res ipsa doctrine. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974).

Mr. Gibbs alleged that the accident resulting in his injuries was proximately caused by the negligence of the defendant (1) in failing to properly supervise the work of his employees, (2) in failing to properly operate his equipment, and (3) in failing “to use ordinary care” in the performance of loading the pipe. These varied general allegations fail to name any specific act which might constitute negligence. While failure to properly supervise its employees might be considered a specific allegation of negligence, the failure to properly operate equipment or to use ordinary care in loading pipe amount to general allegations of negligence.

Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to be under the management and control of the alleged wrongdoer. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968 (1944).

In the Honea case, the plaintiff alleged specific acts of negligence but also alleged that he would not be confined to the specific acts charged but would rely on the general allegations of explosion and defectiveness and the overcharging of said bottle of Coca Cola. It was also alleged that the plaintiff could not more specifically allege the negligent acts of respondent because the same were peculiarly within its knowledge. The Supreme Court held that these allegations were sufficient to give notice that the plaintiff did not propose to be bound by his specific allegations of negligence.

In an earlier case, the Supreme Court specifically addressed the question of the allegations which a plaintiff must include in his petition in order to advise his advisory that the res ipsa rule may be invoked. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935). The court first pointed out that the courts generally in this State recognize the res ipsa loquitur formula as being merely a rule of evidence and that it is applied frequently without specific designation. The court stated that the rule being one of evidence, there is no reason logically for restricting its application to cases in which general negligence is alleged. A practical difficulty is found in the fact that the terms “general” and “specific” are relative, and obviously could not serve as an invariable test of applicability. It concluded that the degree of generality of allegation becomes immaterial except as to fixing the scope of the burden of plaintiff and the scope of the field of testimony in rebuttal of plaintiff’s prima facie case. The court held that an allegation in plaintiff’s petition that the defendant was using a wire “defective in some manner unknown to plaintiff” together with allegations asserting that the management and control of the equipment which produced the injury was with the defendant exclusively, was sufficient to advise the defendant that the rule may be invoked despite the fact that a number of specific allegations of negligence were included in the petition.

Mr. Gibbs has alleged that the defendant, through its employees, failed to properly operate the defendant’s equipment so as not to injure the plaintiff. In effect the plaintiff has charged that the defendant’s employees operated the defendant’s equipment in a manner that resulted in an injury to the plaintiff. This is a sufficient allegation that the equipment was under the management and control of the defendant. He also alleged that the employees failed to use ordinary care in loading the pipe. This is a general allegation of negligence. We conclude that these allegations constituted sufficient notice to the defendant that the plaintiff might rely on the doctrine of res ipsa loquitur.

The facts are such that a conclusion could be drawn that the loading operation was not completed until the stakes were removed from the truck. There is evidence that the process of removing the stakes and the operation of the gin pole truck were solely controlled by the employees of the defendant. At the time of the accident, the plaintiff was standing on the top of the load of pipe some eight to twelve feet from the position of the stake to be removed by use of the hoisting machine. The plaintiff testified that just as he latched the middle boom chain he “seen something, felt something coming, hit me right upside the head.” He testified that he didn’t see anybody out there except the people with Texas Pipe Bending, and there were no other trucks there.

On cross-examination the plaintiff was asked: “you are saying somehow this stake they were pulling out of the bed of the truck came across that bed twelve or fifteen feet and struck you, you think?” Mr. Gibbs answered: “that is what I know. See, that cable, when stuff is released, it curls up, jumps like a rattlesnake.” He testified that the stake hit him on the head and knocked him off the truck.

Mr. Stewart testified that when he arrived on the scene Mr. Gibbs appeared to be disoriented. He was taken to the hospital. Stewart also testified that the gin pole on the Texas Steel Pipe Bending’s equipment did not belong to Consolidated Freightways.

From the evidence, the trial court reasonably could have determined that the character of the accident was such that it would not ordinarily occur in the absence of negligence and that the instrumentality causing the injury was under the management and control of the defendant. Having made such a determination, the trial court was not in error in submitting an instruction on the rule of res ipsa loquitur. Mobil Chemical Co. v. Bell, supra.

The points in appellant’s brief challenging the sufficiency of the evidence to support the jury finding in response to special issue number one cannot be sustained. The effect of successfully invoking the res ipsa doctrine is that the plaintiff can survive “no evidence” procedural challenges— he has produced some evidence of the defendant’s negligence. He is in the same position as any other plaintiff who has made out a case for the jury. No presumption of the defendant’s negligence arises; the jury is merely free to infer negligence. Mobil Chemical Co. v. Bell, supra.

The appellant produced evidence impeaching some of the testimony given by Mr. Gibbs. Doctor Ralph Lyles, who treated Mr. Gibbs at the hospital, testified that Mr. Gibbs told him that he was using a cheater pipe on the end of the boomer to get more leverage and that it slipped causing him to fall from the truck. Mr. Gibbs also identified a document entitled Notice of Injury and Claim for Compensation as bearing his signature. It was dated some twenty-two days after the accident. This instrument bore the statement “I was booming down a load of pipe at Texas Pipe Bending — and the cheater pipe slipped off the boomer and I was knocked off the truck —”. Mr. Gibbs testified he did not remember signing that instrument and that he was not using a cheater pipe before the accident.

Dr. Liles also testified that the records of St. Joseph Hospital reflect a statement made by Mr. Gibbs to the records clerk when he was admitted which reads: “the patient stated he fell from a truck, injuring his hips, abdomen and left hand when a pipe hit his hand. He says he was ‘out’ for a few minutes.” While this statement, and the other statements above set out, reflect on the credibility of Mr. Gibbs, nevertheless his statements together with the inferences properly to be drawn from the circumstantial evidence giving rise to the rule of res ipsa loquitur furnish sufficient support for the jury finding in answer to special issue number one.

Finally, the appellant contends that the trial court erred in refusing to submit to the jury a requested special issue inquiring whether Anson Gibbs failed to keep such a lookout as would have been kept by an ordinary prudent person under the same or similar circumstances.

Mr. Gibbs' testimony indicates that he knew that the appellant’s employees were preparing to remove one of the stakes from the truck by use of the hoisting device. He was at that time attempting to engage the locking device after tightening the boomer chain. He was standing on round pipes and presumably was exerting considerable pressure on the boomer handle. He did not expect the operator of the gin pole truck to begin removing the stakes until he had finished booming the load. He had participated in the loading of pipe on the trailer many times at the Texas Pipe Bending plant. The evidence is insufficient to raise an issue as to whether he failed to keep such a lookout as would have been kept by an ordinary prudent person under the same or similar circumstances.

The judgment is affirmed.


text:
    John SCHUMATE, Individually and as next friend of Cary Schumate, Appellant, v. Katie THOMPSON, Appellee.
    No. 17275.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.
    Rehearing Denied April 12, 1979.
    Miller, Gann & Perdue, John W. Turner, Houston, for appellant.
    Wyckoff, Russell, Dunn & Frazier, Robert L. Adams and James G. Sargent, Houston, for appellee.
    Before COLEMAN, C. J., and WARREN and DOYLE, JJ.
   WARREN, Justice.

This is an appeal from a summary judgment rendered against a parent who sued a school teacher for personal injuries sustained by his son while playing during recess.

Cary Schumate, the son of appellant, attended a school for the mentally retarded in the Cypress Fairbanks School District. According to plaintiff, in February 1976, the appellee, Katie Thompson, who was Cary’s teacher, instructed the teacher’s aide, a mentally handicapped person, to take the class outside to play. The aide was allowed to determine the activities in which the children engaged. The aide directed Cary to high jump a stick held by herself and one of Cary’s classmates. While high jumping Cary tripped and his head struck the ground, resulting in a fractured vertebra of the neck.

Plaintiff alleged that the classroom teacher, Katie Thompson, was negligent in failing to supervise Cary’s activities. The district court rendered summary judgment for the classroom teacher on the basis of immunity granted by the Texas Education Code, section 21.912.

Appellant claims (1) error of the trial court in construing the statute as granting appellee immunity and (2) that Section 21.-912 Texas Education Code (Supp. 1978-1979) is unconstitutional, because it violates Article I, Section 13 of the Constitution of the State of Texas and the Fourteenth Amendment of the United States Constitution.

The applicable paragraph of Section 21.-912, Vernon’s Texas Education Code Annotated (Supp. 1978-1979) (hereinafter cited as Section 21.912), reads as follows:

(b) No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.

Plaintiff’s cause of action necessarily is based upon an interpretation that Section 21.912(b) grants immunity to professional employees (which includes teachers) for any act incident to or within the scope of their duties except where excessive force is used when administering discipline or when the negligence of the professional employee results in bodily injury to the student.

Section 21.912(b) has been interpreted otherwise in Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). In that case a high school student was injured when a calf he was attempting to lead struck á support pole of the school agriculture building causing the roof to collapse. Plaintiff sued individual employees and the school alleging negligence in failing to properly inspect the facility, in failing to maintain or supervise the facility, and in allowing the facility to be used in a condition of disrepair.

Discussing the statute in question and the cause of action against the individuals the court said,

There is a language in the last clause which we find to be ambiguous. . At first glance, a reading of the last clause would seem to indicate personal liability for professional school employees who use excessive force in the discipline of students or who “use negligence” that results in bodily injury to students.

Barr v. Bernhard, supra at 848. The court concluded that,

. the Legislature intended in the last clause of subdivision (b) to limit the liability of professional school employees to certain acts incident to the disciplining of students because this is the only manner in which Section 21.912 can reasonably be interpreted as a whole.

Barr v. Bernhard, supra at 849.

In his attack on the constitutionality of Section 21.912, plaintiff contends that Article I, Section 13, of the Constitution of the State of Texas is violated. Article I, Section 13 provides in relevant part that, “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Texas Const art. I, § 13.

The crux of appellant’s argument is that in passing Section 21.912 the legislature eliminated a remedy for a wrong without substituting an alternative, and that Section 21.912 is not a reasonable exercise of the police power. In support of these contentions, he relies on Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955).

In that case, the charter of the City of Galveston exempted the city from liability for injuries caused by defective streets. The Texas Supreme Court determined that street maintenance was a proprietary function of the city and not cloaked by governmental immunity. The court then held the provision invalid because it only applied to one city and it withdrew all legal redress for injuries. The case distinguishes its holding from Silver v. Silver, 108 Conn. 371, 143 A. 240 (1928) aff'd 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929) and Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593 (1938), wherein the “Guest Statutes” were approved as being constitutional under the United States and Texas Constitutions respectively. Both “Guest Statutes” limited the liability of the owner or operator to those situations where injury to the gratuitous passengers resulted from the intentional or needless and reckless conduct on the part of the driver. The Lebohm Court construed the opinion of the Connecticut Supreme Court as upholding the constitutionality of the guest statute, because the statute “only revised or redefined the common-law duty of care of the host to the guest.” Lebohm v. City of Galveston, supra 275 S.W.2d at 954 [construing Silver v. Silver, 108 Conn. 371, 143 A. 240 (1928), aff’d 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929)]. The Lebohm Court discussed, with approval, the decision of the United States Supreme Court affirming the constitutionality of the Connecticut Guest Statute, because the statute “represented a reasonable and permissible exercise by the Legislature of the state’s police power to correct abuses and evils arising out of a growing multiplicity of suits by gratuitous passengers contrary to the public welfare.” Lebohm v. City of Galveston, supra 275 S.W.2d at 954 [construing Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929)].

To prevent a multiplicity of suits may be a desirable goal, but this goal pales when compared with the desirability of providing teachers limited protection and freedom from being placed in the position of insurer against injury of each child directly or indirectly placed in their care.

We hold that Section 21.912 of the Texas Education Code is a permissible exercise of the police powers by the legislature and does not violate either Article I, Section 13 of the Texas Constitution or the Fourteenth Amendment of the Constitution of the United States of America.

The trial court’s judgment is affirmed.


author: EVANS, Justice.

text:
    Charles W. YATES, Appellant, v. Antonio MEDRANO et ux., Appellees.
    No. 17326.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.
    Rehearing Denied April 19, 1979.

      Minns, Izen, Bradt & Associates, L. T. Bradt, Houston, for appellant.
    Morris Bogdanow, Houston, for appellees.
    Before EVANS, WARREN and WALLACE, JJ.
   EVANS, Justice.

The plaintiff brought this action against the defendants, seeking to recover damages under the Texas Deceptive Trade Practices-Consumer Protection Act (Tex.B. & Comm.C. §§ 17.41-17.63). He alleged that the home sold to him by defendants had an active termite infestation and that this condition was knowingly concealed from him.

After a non-jury trial, a take nothing judgment was entered against the plaintiff and this appeal results. In three points of error the plaintiff contends that the trial court erred in failing to find “false, misleading or deceptive acts or practices” or “an unconscionable action or course or conduct” on the part of the Medranos and in refusing to hold that “the Texas Deceptive Trade Practices Act applied to a seller of goods who is not in the business of selling.”

The record reflects that the plaintiff filed a request for findings of fact and conclusions of law, but it does not appear that such request was presented to the trial judge or that a subsequent complaint regarding the trial court’s failure to file such findings was filed and presented as required by Rule 297 (Tex.Rules of Civil Procedure). Thus, all questions of fact must be presumed to have been found in support of the trial court’s judgment, Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1978), and its judgment must be affirmed if it can be upheld under any legal theory supported by the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968).

It is the plaintiff’s position that the evidence established that the defendants knew of the existence of “rotted wood” in the residence and that such knowledge was not communicated or disclosed to the plaintiff at the time he purchased the property. He contends that the defendants’ failure to inform him of the condition of the wood constitutes actionable fraud giving rise to a cause of action under the Texas Deceptive Trade Practices Act. Even accepting the plaintiff’s version of the evidence as true, the record does not contain proof of any causal relationship between the rotted wood and the alleged termite infestation. Therefore, the trial court could have concluded from the evidence that the plaintiff had not met his burden of proof with respect to the cause of action alleged in his petition. Since the trial court’s judgment may be upheld on this basis, it is the duty of this court to sustain its judgment.

The judgment of the trial court is affirmed.


author: CIRE, Justice.

text:
    Ex parte Robert L. HEMMITT, Relator.
    No. B2085.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 21, 1979.
    Asberry B. Butler, Jr., Houston, for relator.
    Zinetta A. Burney, Houston, for respondent.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   CIRE, Justice.

This is a petition for writ of habeas corpus. Petitioner Robert Lee Hemmitt was divorced on July 23, 1971, at which time he was ordered to pay child support in the amount of $15.00 per week. A hearing on an application for a contempt order filed by petitioner’s ex-wife Clara Hemmitt was held on January 9, 1979. The judge there found petitioner to be in contempt of court “in that he failed and refused to make child support payments in defiance of the Judgment. . . . ” Petitioner’s arrearage was found to be in the amount of $412.00, and he was ordered confined to the Harris County Jail for three days and for such further time as he refused to pay such arrearage, as well as movant’s attorney’s fees.

Petitioner claims that he is being illegally detained because the commitment order signed by the judge is fatally defective. We agree, and therefore grant petitioner’s application.

The order states that “Respondent, Robert Lee Hemmitt, stands charged with contempt of court in failing and refusing to comply with the terms of the Judgment of this Court entered on or about the 23 [sic] day of July, 1979.” As the commitment order reads, petitioner was committed for violating an order contained in a judgment which has not yet been entered. There was ample opportunity to correct this entry, and absent a correction, this court cannot assume that the trial judge intended a date other than that stated. Since the order appealed from is defective, it cannot stand, and the application for writ of habeas corpus is granted.

Petitioner further urges that his commitment is illegal because he is financially unable to comply with the court’s order. Where the petition is made on this ground, “this court cannot determine whether such inability actually existed . unless the application is accompanied by a statement of the facts developed on the contempt hearing.” Ex Parte Crawford, 506 S.W.2d 920, 922 (Tex.Civ.App.—Tyler 1974, no writ).

According to petitioner, he has not been able to obtain a statement of facts because personnel changes in the district court have made it impossible to locate the court reporter who recorded the proceedings of the January 9th hearing. He asks that this court postpone a decision on the question of inability until a statement of facts has been obtained.

Petitioner filed no motion to extend the time to file a statement of facts or to reschedule submission to this court. Accordingly, petitioner’s claim of inability to pay is overruled.

Petition for writ of habeas corpus granted, and relator is ordered discharged.


author: J. CURTISS BROWN, Chief Justice.

text:
    L. W. SHIPLEY, Jr., Appellant, v. E. L. BISCAMP et al., Appellees.
    No. B1977.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 21, 1979.

      Larry L. Huelbig, Lapin, Totz & Mayer, Houston, for appellant.
    Douglas H. Chilton, Texas City, William G. Neumann, Jr., Houston, Mabry, Herbeck & Chilton, Texas City, for appellees.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   J. CURTISS BROWN, Chief Justice.

Plaintiff filed suit to foreclose on an express contractual lien on certain real property and to recover specific sums alleged to be due and owing. Defendant, in addition to a general denial, cross-claimed for partition of the subject property based on an alleged breach of trust by the plaintiff. Appeal is from a judgment finding plaintiff in breach of trust and ordering a judicial sale of the property and partition of the proceeds.

On April 7, 1970, E. L. Biscamp (appellee or Biscamp), George A. Biscamp, and L. W. Shipley, Jr. (appellant or Shipley) entered into an agreement wherein E. L. Biscamp and George A. Biscamp conveyed the legal interest in a Texas City shopping center to Shipley. Under the agreement Shipley was designated as trustee of the property for the benefit of Biscamp and himself. The ownership was allocated fifty percent to Biscamp and fifty percent to Shipley. Further, the agreement provided for Shipley to have absolute control over the property and to have unquestioned discretion over decisions as to sale, rent, refinancing, repairs and maintenance. Shipley agreed to bring all past due accounts on the property current, but was entitled under the agreement to have those amounts reimbursed “before Biscamp shall be entitled to any portion of the revenues . . . ,” and the contract further provided that reimbursement was to be from “rentals, refinancing of the properties, sales, or any other way . ..”

In October 1972 Shipley demanded in writing that Biscamp contribute his pro rata share toward the net operating losses incurred in the two preceding years, thus attempting to invoke the following provisions of the agreement:

Subject to the other provisions herein, each of the Owners from this date shall be obligated to pay when due, his proportionate part of all costs and expenses incurred in operating the properties or otherwise .
Biscamp agrees to pay to Shipley within five (5) days after receipt of notice from Shipley that funds are needed for the payment thereof, his proportionate part of any amount for the payment of which Owners are liable hereunder .

Biscamp did not honor the demand nor did he honor a subsequent demand in September 1973. This suit was filed in 1974 by Shipley, who was seeking a foreclosure on Biscamp’s half interest as provided in the agreement, plus reimbursement of the amounts expended to bring the accounts current in 1970. Biscamp, alleging mismanagement of the trust property by Shipley, sought a judicial sale and partition of the proceeds even though the contract stated that “[e]ach owner agrees that he will not take any action to partition the property

The jury found that there was a net operating loss in 1972, that Shipley had not breached the trust agreement, that the property was susceptible to partition in kind, that Biscamp and- Shipley each owned fifty percent of the property, but that there was no money owing from either Biscamp to Shipley or from Shipley to Biseamp. The trial court disregarded the finding of a net loss in October 1972 on the ground that it was not supported in Shipley’s pleading of a net loss as of September 30,1973. The trial court also disregarded the finding that Shipley had not failed “to properly carry out the duties owed by a trustee to his beneficiary” on the ground that there was no evidence to support it. Further, the court found that “it would not be equitable to permit Mr. Shipley, who has breached the trust agreement to enforce that portion of the agreement prohibiting partition. . .” The court found the property was not susceptible to partition in kind and ordered it sold. Based on the jury’s finding that there was no money due either from Biscamp to Shipley or from Shipley to Biscamp, the trial court ordered the proceeds of the sale paid one-half to Biscamp and one-half to Shipley.

Appellant Shipley first contends that it was error for the trial court to disregard the jury’s finding of a net operating loss in October 1972. In our opinion that finding must be considered in conjunction with special issue eight, which inquired:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence is owed to Mr. Shipley, Trustee, by Mr. Biscamp under the terms of the contract dated April 7, 1970?

Special issue eight submitted the essential question whether there was any debt in existence upon which foreclosure of the contractual lien could be predicated at the time of trial, since it is fundamental that without a debt there can be no lien. Perkins v. Sterne, 23 Tex. 561 (1859); Trane Company v. Wortham, 428 S.W.2d 417 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref’d n.r.e.).

The general rule seems to be universal that a lien is but an accessory to, or mere incident of, the debt secured by it, and is discharged and extinguished, ipso facto et eo instante, by payment of the debt...

Spencer-Sauer Lumber Co. v. Ballard, 98 S.W.2d 1054 (Tex.Civ.App.-San Antonio 1936, no writ). Although there may have been a valid net operating loss in 1972 for which Biscamp was liable, and upon which foreclosure of his interest could have been properly predicated, if there was no debt in existence at the time of trial foreclosure would have been improper. For this reason, it was Shipley’s burden to obtain a jury finding of a debt in existence at the time of trial. The records introduced at trial by Shipley are complete only through December 1976, and none were produced to bring to the attention of the fact-finders any debt existing at the time of trial. There being no evidence of any amount owing from Biscamp to Shipley, the jury’s response to special issue eight withstands scrutiny.

Further, Shipley, in his motion for judgment on the verdict, requested the court to accept the jury’s answer to special issue eight. Having “invited” the trial court to accept the answer, Shipley cannot on appeal question the submission of the issue or the jury’s answer thereto. Northeast Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942, opinion adopted); Saper v. Rodgers, 418 S.W.2d 874 (Tex.Civ.App.-Houston [1st Dist.] 1967, writ ref’d n.r.e.). Since foreclosure on Biscamp’s interest would have been improper in light of the jury’s response to special issue eight, any error in disregarding special issue number one, inquiring whether there was a net operating loss in October 1972, was harmless. Tex.R.Civ.P. 434. The question whether Shipley would be entitled to interest as allowed by law on the amounts properly demanded from 1972 until paid is not before this court and we express no opinion as to the availability of this relief. We also note that the contract provides for reimbursement to Shipley of the amounts expended to bring the accounts current on the property in 1970, and that reimbursement may be made from rentals, sale of the properties, refinancing, or from any other disposition of the property.

Shipley also contends that it was error for the trial court to disregard the jury’s finding that Shipley had not failed to properly execute his duties under the agreement and to order a partition of the property in direct contravention of the anti-partition clause of the contract. The judgment entered by the trial court in this regard states:

The Court finds that Mr. Shipley, Trustee, failed to perform his duties as trustee and is in breach of the trust agreement. The Court further finds that it would not be equitable to permit Mr. Shipley, who has breached the trust agreement to enforce that portion of the agreement prohibiting partition of the property. That the breach of the trust of Mr. Shipley permits Mr. Biscamp to seek an end to the trust and request that the property be partitioned.

The trial court was not authorized to make this finding (or any finding) contrary to the jury verdict. We find ample evidence to sustain the verdict. Also, the alleged breach of trust in this case would not be of such nature as to justify rescisión of the entire contract. See, Weber v. Hesse Envelope Company, 342 S.W.2d 652 (Tex.Civ.App.-Dallas 1960, no writ) (employer’s breach of employment contract by terminating without notice not sufficient to allow employee to avoid non-competition clause). We recognize that “[a]lthough the right to partition is favored by the courts, and is protected by statute in Texas, it is well settled that this right may be waived, or contracted away. . . .” Inter-City Properties, Inc. v. Gibbs, 560 S.W.2d 503 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref’d n.r.e.); Spires v. Hoover, 466 S.W.2d 344 (Tex.Civ.App.-El Paso 1971, writ ref’d n.r.e.). However, our holding that Biscamp and Shipley are not entitled to judicial partition of their interests does not deprive them of a remedy, as the contract specifically sets out a method for the sale of a cotenant’s interest subject to the other cotenant’s right of preferential purchase. “[The contract thereby] guarantees each party the right to sell his interest and good faith cooperation with such efforts will be required of the other part[y]. Inter-City, supra.

Based on the jury’s answer to special issue eight, we sever and affirm the trial court’s refusal to enter a money judgment for Shipley to the date of trial and also the refusal to foreclose on Biscamp’s interest in the property at that time. However, due to the error in ordering the sale and partition of the property in disregard of the agreement, we reverse and remand the remainder of the case for further development consistent with this opinion.

Affirmed in part and reversed and remanded in part.

      . Prior to trial, George A. Biscamp conveyed his interest in the properties to E. W. Biscamp, and was not a party to this suit. All references herein are to E. W. Biscamp.


author: McKAY, Justice.

text:
    HIBBARD OFFICE WORLD, INC., et al., Appellants, v. F. JAY, a corporation, Appellee.
    No. 1226.
    Court of Civil Appeals of Texas, Tyler.
    March 22, 1979.

      John S. Walker, Center, for appellants.
    Thomas R. McLeroy, Jr., McLeroy & McLeroy, T. Randy McLeroy, Center, for appellee.
   McKAY, Justice.

This is a suit on a sworn account. F. Jay, A Corporation, an Illinois corporation, and appellee here, sued Hibbard Office World, Inc., and L. D. Hibbard, Sr., individually, appellants, alleging that it had, at appellants’ request, sold to them on July 7, 1976, cash registers of a reasonable value of $15,-506.50. In payment, the corporate appellant executed its promissory note for that amount plus $1,395.42 as finance charges, totaling $16,901.92, payable in 78 weekly installments of $216.69 each. Appellee claimed a security interest in the goods sold and that there was a balance due of $11,-293.98. It was further alleged that appellee thereafter sold additional cash registers and parts to appellants of a reasonable value, after adjustments for offsets, of $629.47. Appellee further alleged the execution by the individual appellant of an unconditional guaranty of the full payment, to the extent of $16,901.92, of all obligations of the corporate appellant to appellee. The foregoing accounts were alleged to be due and payable, demand for payment was alleged to have been made upon appellants, and appellants were alleged to have failed and refused to pay the same. Appellee further averred that the written agreements involved provided for recovery of attorney’s fees and alleged the same in the amount of $4,000.00. The petition was duly verified.

The petition was filed on September 20, 1977, and appellants’ original answer on October 3,1977. Appellee served upon each appellant a request for admissions on or about November 7, 1977, demanding the admission or denial of matters enumerated therein within eleven days after service thereof. On December 12, 1977, appellee filed its motion for summary judgment on the grounds that appellants had failed to reply to the requests for admissions, and that there was no genuine issue as to any material fact. Thereafter, on December 15, 1977, appellants filed their response to the requests for admissions.

Appellants, on December 21, 1977, filed their first amended answer, stating, “Each and every item in the account made the basis of this suit is wholly not just or true.” Appellants alleged that appellee was not entitled to maintain this action because ap-pellee had no certificate of authority and was not registered as a foreign corporation to do business in this state. It was further alleged that the interest charge was usurious, that appellee could accelerate only the payments presently due and not the entire amount of the note, and that the alleged contract violated state and federal truth-in-lending and full disclosure statutes. Appellants then alleged, as a purported counterclaim, that the original transaction was based upon fraudulent representations by appellee, in that the goods sold were obsolete, resulting in “an unloading of inferior quality machines on [appellants],” and damages to appellants in the amount of $15,-000.00. Further, appellants purported to state a cause of action under the provisions of the Deceptive Trade Practices and Consumer Protection Act, Tex.Bus. & Comm. Code sec. 17.41 et seq. Appellee specially excepted to appellants’ answer in several particulars and moved to have its requests for admissions deemed admitted.

Following a hearing on January 6, 1978, on appellee’s motion for summary judgment, the court below granted the same and entered summary judgment for appel-lee for $11,923.45 plus costs of suit and interest thereon; for interest on the sum of $11,293.98 from January 27, 1978, until the date of the judgment (June 2, 1978); and for foreclosure of appellee’s security interest in the goods still in appellants’ possession. The summary judgment did not mention appellants’ counterclaim. In a separate order of even date with the judgment, the court granted appellee’s Motion to Deem Requests for Admissions Admitted, and ordered that all the matters in the requests for admissions be deemed admitted by both appellants. Appellants predicate their appeal on five points of error, all concerned with the merits of the trial court’s action in granting appellee’s motion for summary judgment.

It is well settled that a summary judgment which does not dispose of all parties and all issues in a pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. In the absence of such an order for severance, a party against whom such an interlocutory summary judgment has been rendered will have his right of appeal when, but not before, the same is merged in a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959); Clabaugh v. City of Tyler, 531 S.W.2d 152, 154-55 (Tex.Civ.App.-Tyler 1975, no writ). See also Williams v. Southern Trust & Mortgage Co., 517 S.W.2d 453, 454 (Tex.Civ.App.-Eastland 1974, writ ref’d n.r.e.).

Appellant cites Stark Roofing Co., Inc. v. Wm. Cameron & Co., Wholesale, 500 S.W.2d 874 (Tex.Civ.App.-Waco 1973, no writ), and Independent American Construction Co., Inc. v. Gold Star Distributors, Inc., 540 S.W.2d 586 (Tex.Civ.App.-Texarkana 1976, no writ), both of which rely upon North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). The latter case, however, stated the test for determining when a judgment “not intrinsically interlocutory in character” may be presumed to have disposed of parties or issues not expressly mentioned in the judgment. It is inapplicable in a case such as the instant one where the summary judgment does not purport to dispose of all parties or claims pending before the court. See Stockton v. Summers, 504 S.W.2d 637, 638 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ).

In the instant case, there was no order of severance of appellants’ counterclaim, and the judgment states, “this Court is of the opinion, and so finds that there is an absence of any genuine issue of any material fact concerning Plaintiff’s entitlement to judgment based on all causes of action alleged in Plaintiff’s Original Petition.” [Emphasis added.] Thus it is clear that the summary judgment neither disposed of appellants’ counterclaim nor intended to do so.

We note that appellants contend that there was error on the part of the trial court in granting appellee’s motion for summary judgment because that court failed to specify the facts that appear without substantial controversy and failed to direct further proceedings on appellants’ counterclaim. These actions are provided for in Rule 166-A(d), T.R.C.P.; however, that rule provides that where judgment is not rendered on the whole case, the court shall if practicable ascertain the facts that exist without substantial controversy and thereupon shall enter its order specifying such facts and directing such further proceedings as are just. It is thus a matter addressed to the discretion of the trial court and appellants claim no abuse of that discretion here. It does not appear from the record that appellants requested such an order, but the trial court’s order deeming appellee’s requests for admissions to be admitted may be considered as an order specifying that the facts contained in such requests exist without substantial controversy.

Inasmuch as the summary judgment was obviously not rendered upon the whole case (see Rule 166 — A(d), supra), it is interlocutory in character and not appealable. We, therefore, have no jurisdiction of this appeal and it is accordingly dismissed.


author: MOORE, Justice.

text:
    WIRTH, LTD., Appellant, v. PANHANDLE PIPE AND STEEL, INC., Appellee.
    No. 1195.
    Court of Civil Appeals of Texas, Tyler.
    March 22, 1979.

      Larry W. Bass, Bass & Bass, Houston, for appellant.
    Don M. Dean, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, for appellee.
   MOORE, Justice.

This is a suit for damages for breach of a contract. Appellant, Wirth, Ltd. (Wirth), brought suit against appellee, Panhandle Pipe and Steel, Inc. (Panhandle), alleging that Panhandle, acting by and through its President, Maurice Seliger, contracted with Wirth for the purchase of 390 tons of steel products, or alternatively, contracted for the purchase of 300 tons of steel products, to be rolled by European steel mills and to be delivered at the port of Houston in Harris County, Texas. Wirth alleged that after it had placed Panhandle’s order for the steel products with the foreign mills, Panhandle notified Wirth that it would no longer go forward with the contract and would refuse to accept delivery of the steel; that when the steel arrived at the port of Houston, Panhandle refused to accept delivery and Wirth was compelled to sell the steel on the open market; and that as a result of the breach of the contract Wirth suffered damages in the amount of $98,266.67. together with other incidental damages.

Panhandle denied generally the allegations of the petition and specially denied the existence, either in fact or in law, of any contract with Wirth for the purchase of steel products. Panhandle alleged that Wirth failed to accept its offer within a reasonable time and that when Wirth finally did send its “order acknowledgment” some 90 days after the order, the delivery times thereof differed from the order and that same was returned to Wirth unsigned within 10 days after receipt thereof. Panhandle alleged that the “order acknowledgment” differed in material respects from the quantity and quality of the steel ordered, and therefore did not amount to an unqualified acceptance of its order. Panhandle further alleged that the “order acknowledgment” amounted to a repudiation of the offer because it showed that the steel was not to be delivered until sometime after the last quarter of 1974 which was contrary to the previous agreement between the parties. Panhandle further alleged that even if a contract existed, no liability attached because Wirth breached its duty to resell the steel in a commercially reasonable manner at the time it arrived at the port of Houston. After a trial before the court, without a jury, the trial court entered a take-nothing judgment against Wirth, from which ruling and judgment Wirth perfected this appeal.

We affirm.

The record reveals that Wirth, through its sales representative, W. V. Garrett, in Houston, Texas, had established with Panhandle, through its President, Louis Seliger, a general course of business in which Wirth solicited orders for steel products to be rolled in foreign markets. The general course was for Mr. Garrett to contact Mr. Seliger on the telephone and solicit from him an offer to purchase certain steel products. Garrett had no authority to bind Wirth in the transaction. Contracts in connection with the purchase and sale of the steel were to be finalized by Wirth’s Montreal office. Once an offer was given on the phone by Mr. Seliger to Mr. Garrett, Mr. Garrett would telex the offer to the home office of Wirth in Montreal, Canada. Upon receipt of that telex at the home office in Montreal, Wirth would telex its various suppliers, being the mills in Europe, an offer on behalf of Panhandle to purchase the products from the foreign mills. The foreign mills would then telex Wirth in Montreal that the offer was either accepted or was unacceptable. Wirth, in turn, would then telex such information to Mr. Garrett in Houston who would immediately pass that information on to Panhandle, such information being passed on by telephone. In the event the mill had accepted the order, Mr. Garrett would inform Mr. Seliger that the order had been booked for the account of Panhandle and would then request that Seliger issue a purchase order. Panhandle would then issue its purchase order and mail it to Mr. Garrett in Houston, Texas. Upon receipt of the purchase order, Mr. Garrett would forward the same to Wirth at its Montreal office. After the receipt of the purchase order in Montreal, Wirth would issue an order acknowledgment and forward the same to Mr. Garrett in Houston. Garrett would then forward the acknowledgment to Mr. Seliger. Once the steel products arrived in Houston, Panhandle would make arrangement for receiving delivery of the steel and pay for the same upon taking delivery.

The transaction made the basis of the present suit arose from a telephone conversation on July 18, 1974, in which Garrett called Seliger to solicit an order for steel. Garrett testified that Seliger verbally agreed to purchase 890 tons of steel and that he forwarded such information on to the Montreal office. Seliger denied he agreed to purchase any steel at that time. He testified that the telephone conversation amounted to nothing more than a discussion of the availability of the steel and that he never promised Garrett that he would order 390 tons of steel. He testified that no offer to purchase the steel was made until he subsequently forwarded Garrett his written purchase order for 300 tons of steel on July 27, 1974. He testified that after hearing nothing from Wirth, on October 21,1974, he mailed a letter to Wirth revoking the offer. He testified that he finally received an “acknowledgment of the order” on November 5,1974, with a request that it be signed and returned to Wirth. He returned the order acknowledgment to Wirth unsigned because it differed materially with Panhandle’s order. It had extended the delivery date beyond the end of the fourth quarter of 1974.

At the request of appellant, the trial court filed extensive findings of fact and conclusions of law. The findings of fact consist of 41 separate findings, many of which include various additional findings. In view of the disposition we make of the case, it will not be necessary to restate these findings in detail. Generally, the court found that (a) no oral contract was consummated; (b) Panhandle’s order for the steel was never accepted by Wirth; (c) that even if Wirth’s “order acknowledgment” amounted to an acceptance of Panhandle’s order, such acceptance was not made within a reasonable time; (d) that time was of the essence between the parties; (e) that Wirth’s written “order acknowledgment” which Panhandle received on November 5, 1974, materially differed from Panhandle’s written order; (f) that Panhandle’s order for the steel was made on the condition that the steel was to be delivered at the port of Houston not later than the fourth quarter of 1974; (g) that even if a contract existed between the parties, it was repudiated by Wirth’s “order acknowledgment” showing that the bulk of the steel was not to be delivered until after January 1, 1975; (h) that the alleged contract relied on by Wirth was unenforceable because it failed to comply with the Statute of Frauds’ provision of sec. 2.201 of the Texas Business & Commerce Code; (i) that the resale of the steel by Ashworth when it arrived in Houston was not made in a commercially reasonable manner; and (j) that there was no evidence establishing the market price of the steel at the time Wirth resold the same.

The conclusions of law were as follows:

1. Plaintiff and Defendant did not, either orally or in writing, reach an agreement with respect to the purchase and sale of any of the subject steel products sufficient to form a contract.
2. No writing signed by Defendant sufficient to indicate that a contract for sale had been made having been shown by the evidence, and no writing in confirmation of a contract sufficient against Plaintiff having been received by Defendant without written notice of objection to its contents within ten days, Plaintiff’s rights under any alleged contract are unenforceable under the statute of frauds as set forth in Section 2.201 of the Texas Business & Commerce Code.
3. Even if a contract for the sale of steel products existed prior to or on November 5, 1974, it was on the basis of arrival of the steel products in Houston prior to the end of the fourth quarter of 1974. Plaintiff’s statement of later delivery dates in its “order acknowledgment” constituted an anticipatory repudiation of its obligations within the meaning of Texas Business & Commerce Code, Section 2.610 and Defendant under Section 2.711 thereof had the right to cancel and did cancel the contract, if any, and rightfully rejected all steel.
4. Plaintiff’s resale of the subject goods was not made in a commercially reasonable manner within the meaning of Texas Business & Commerce Code 2.706. Plaintiff offered no evidence of the market price for the subject steel products at the time and place for tender under the contract, if any, within the meaning of Section 2.708 of the Texas Business & Commerce Code which establishes his measure of damages, and Plaintiff’s case therefore fails for want of proof of damages.
5. Plaintiff is entitled to recover nothing from the Defendant because Plaintiff has failed to prove by a preponderance of the evidence either:
(1) the making of a contract; or
(2) the breach thereof by Defendant;
or
(3) the damages, if any, sustained by Defendant.

Appellant seeks a reversal by six points of error. In the third point appellant contends that “the trial court erred in rendering findings of fact numbers 1 through 41 because such findings of fact are against the greater weight and preponderance of the evidence.” In the fourth point, it is contended that “the trial court erred in rendering findings of fact numbers 1 through 41 because there is no evidence in the record to support such findings of fact.” Panhandle attacks the sufficiency of Wirth’s brief on the ground that both of these points are multifarious and too general to be considered by the court because neither point refers to any particular fact finding but rather attacks all such findings globally in their entirety. We have concluded that Panhandle’s contention is well taken and must be sustained.

Rather than presenting its statement, argument and authorities separately under each point, appellant combines its statement, argument and authorities under all six of its points of error. The statement, argument and authorities consist of twenty-four pages discussing the evidence as well as numerous sections of the Texas Business & Commerce Code. Only one case is cited. At no point in the brief does appellant give the number of any particular fact finding which it contends is not supported by the evidence or is contrary to the overwhelming weight and preponderance of the evidence. Nowhere in the brief is any one of the forty-one findings of fact referred to by its number. Contrary to the briefing rules each of the points here attack more than one ruling made by the court. Both points constitute an attack on the entire verdict rendered by the trial judge. Thus, the statement and argument provide no basis, except in a vague and general way, for this court to intelligently rule on whether a particular finding is unsupported by the evidence or whether the finding is against the great weight and preponderance of the evidence. We are therefore of the opinion that both the third and fourth points of error are multifarious or too general to comply with the requirements of Rule 418, Tex.R.Civ.P., and therefore should not be considered on appeal. Great American Insurance Co. v. Langdeau, 379 S.W.2d 62, 74 (Tex.1964); Texas Employer’s Ins. Assoc. v. Hawkins, 369 S.W.2d 305 (Tex.1963); Hudspeth v. Hudspeth, 206 S.W.2d 863, 867-69 (Tex.Civ.App.—Amarillo 1947, no writ history); Heldt v. McCreary, 399 S.W.2d 181, 184 (Tex.Civ.App.—Corpus Christi 1966, no writ history); Commercial Standard Ins. Co. v. Southern Farm Bureau Casualty Ins. Co., 509 S.W.2d 387, 392 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Hosack v. Cassidy, 543 S.W.2d 202, 205-06 (Tex.Civ.App.—Corpus Christi 1976, no writ history).

In connection with our conclusion that the third and fourth points are multifarious, it is significant to note that even though the appellant had notice of the fact that appellees had challenged the points on the ground that they were too general to be considered on appeal, appellant made no effort to amend its brief so as to comply with the briefing rules. While it has long been the policy of this court to indulge in a liberal construction in favor of the sufficiency of a brief, we do not believe such liberality should be extended to points so multifarious and general as those presented here. Accordingly, appellant’s third and fourth points are overruled.

Under the first and second points appellant attacks the trial court’s conclusions of law. By the first point it is contended that “the trial court erred in entering conclusions of law Nos. 1 and 2 because there is, in the record, written documentation sufficient to establish a contract between the plaintiff and defendant as required under the terms of the statute of frauds set forth in sec. 2.201 of the Texas Business & Commerce Code.” By the second point of error, appellant contends that “the trial court erred in entering conclusions of law No. 3 because the time of the delivery of the steel products was not a condition of the contract in question.” We find no merit in either of these points.

Rules 300 and 301, Tex.R.Civ.P., require among other things that the judgment must conform to the findings of fact, but we are not aware of any rule that requires the judgment to conform to the conclusions of law. If the trial court renders an otherwise correct judgment, it will not be set aside because it made one or more incorrect conclusions of law. Where the findings of fact are sufficient to support the judgment and are not against the overwhelming weight and preponderance of the evidence, the judgment will be upheld even though the trial judge erred in some of his conclusions of law. Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894, 895-96 (Tex.Civ.App.—San Antonio 1962, no writ history); Golden State Mutual Life Ins. Co. v. Adams, 340 S.W.2d 77, 79-80 (Tex.Civ.App.—Fort Worth 1960, no writ history); Redburn v. Shield, 338 S.W.2d 323, 327 (Tex.Civ.App.—San Antonio 1960, writ dism’d); 4 McDonald, Texas Civil Practice, sec. 16.05 p. 14 (1971 rev.).

Stated in a slightly different manner, the rule is that where the trial court’s findings of fact are supported by the evidence and are not against the overwhelming weight and preponderance of the evidence, it is the duty of the appellate court to uphold the judgment on any theory of law applicable to the case, even though some or all of the trial court’s conclusions of law are found to be erroneous. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939); Pope v. American National Ins. Co., 443 S.W.2d 377, 381 (Tex.Civ.App.—Tyler 1969, writ ref’d n.r.e.); 4 Texas Digest, Appeal & Error «=»854(2).

In the instant case the trial court found that the appellant failed to resell the steel products in a reasonably commercial manner in accordance with sec. 2.706 of the Texas Business & Commerce Code because appellant failed to sell the steel until long after it had arrived at the port of Houston. The trial court further found that appellant failed to adduce any evidence as to the market price of the steel at the time it was resold as required by sec. 2.708 of the Texas Business & Commerce Code and that as a result appellant failed to establish that it suffered any damages as a result of the alleged breach of contract. Since we have left the trial court’s findings of fact undisturbed, the foregoing findings of fact are binding on this court. Thus, based on the foregoing findings, the trial court was authorized to render a take-nothing judgment against appellant both on the theory that appellant failed to timely resell the steel in a reasonably commercial manner and also that it failed to discharge its burden of proving the market price of the steel at the time of its resale so as to show that it suffered damages. Thus, it is not necessary to determine whether the particular conclusions of law complained of were incorrect because, even if they were, they would afford no basis for reversing the judgment which was supported by facts found by the trial court to be sufficient to deny a recovery on a different theory. Mercedes Dusting Service, Inc. v. Evans, supra.

Finally, appellant contends in the fifth and sixth points that the trial court erred in entering conclusions of law Nos. 1 through 5 because there is no evidence in the record to support the same or that such conclusions are against the great weight and preponderance of the evidence. These points are multifarious and too general, or both, to be considered for the same reasons we have heretofore discussed under appellant’s third and fourth points of error. Accordingly, the points are overruled.

The judgment is affirmed.


text:
    Billie Joyce JENKINS, Individually and as Guardian of the Person and Estate of Harold Brown Jenkins, NCM, Appellant, v. FRITZLER DEVELOPMENT CORPORATION, Appellee.
    No. 17329.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 22, 1979.
    Rehearing Denied April 19, 1979.

      Friedman & Chaffin, G. Robert Friedman, W. Allen Lee, III, Houston, for appellant.
    Fulbright & Jaworski, William W. Vernon, Dan K. Hedges, Houston, for appellee.
    Before WARREN, EVANS and WALLACE, JJ.
   WARREN, Justice.

This is an appeal from a summary judgment rendered in favor of one of the defendants, Fritzler Development Corporation.

On June 28, 1975, Harold Brown Jenkins, while performing his duties as an employee of Davis Brothers, a roofing subcontractor, fell from a steel bar joist incorporated in the shell of a partially constructed building owned by the defendant Fritzler Development Corporation (appellee). As a result of the fall, Mr. Jenkins suffered extensive injuries rendering him non compos mentis. This suit was brought by Mrs. Jenkins, individually, and as guardian of her husband’s person and estate (appellant), alleging that appellee, as owner and general contractor, was negligent (1) by breaching its duty to provide a safe place to work, and (2) by breaching its duty to supervise the roofing subcontractor to insure the utilization of proper safety equipment. No allegations were made that the steel bar joist was defective or improperly incorporated into the structure. Appellee’s motion for summary judgment, in which it was asserted that appellee had no duty to warn the subcontractor or the subcontractor’s employees of dangers inherent in their work or created by other employees of the same subcontractor, was granted. Appellant has duly perfected this appeal asserting the existence and breach of the duties alleged in his pleadings, and further, that the trial court erroneously premised its judgment upon the former rule of law that an occupier of land had no duty to warn of open and obvious dangers.

It is undisputed that the steel joist from which Jenkins fell was located approximately twenty feet above the concrete floor and that no safety nets or other safety devices were utilized. Davis Brothers was, moreover, a reputable roofing company with thirty years of experience.

The president of appellee was familiar generally with the procedures utilized to construct the roof. He also knew that there were some dangers inherent in the performance of the work and had seen roofers on other jobs slip while walking on the beams. Neither appellee’s president nor any of its agents supervised, or attempted to supervise, the construction of the roof. Any concerns which appellee had pertaining to the construction of the building’s shell were discussed with Predesigned Construction Company, the main contractor, and not with the various subcontractors. On the day of the accident, neither the appellee’s president nor any of its agents were present.

A properly erected, non-defective steel beam is not dangerous. There is also no doubt that walking on a steel beam, two inches in width, twenty feet above a concrete floor while carrying roof decking materials is dangerous. The dangerous condition is created by the combination of the beam’s height and the manner in which the beam is utilized. The management of height inheres in the work of a roofer just as the management of electrical current inheres in the work of an electrician. In the instant case, the manner in which the steel joist was utilized is analogous to an electrician working with a live wire without a proper ground or insulation. In both instances, the inherent danger is accentuated by the manner in which the work is performed. See: Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976) (contractor’s employee injured while working on moving machinery under the contractor’s control); Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973) (electrical subcontractor’s employee killed by electric shock). For these reasons we conclude that the danger in the instant case did not arise from a defect on the premises.

Appellant’s theory requires that a duty be imposed upon the occupier of premises to anticipate the methods and procedures by which a subcontractor will perform his work, and to furnish the subcontractor’s employees with appropriate safety equipment to guard against hazards inherent in and arising from the work. Appellant would impose an additional duty upon the occupier of premises to supervise and police the subcontractor to insure that appropriate safety precautions were taken.

The imposition of these duties upon an occupier of premises has been rejected repeatedly in this state. Absent exceptional circumstances an occupier of premises, which includes a general contractor, has no duty to warn the subcontractor and his employees of dangers inherent in and arising from the performance of their work. Abalos, supra at 631; Shell, supra at 747. An occupier of premises can assume that a subcontractor will perform his responsibilities in a safe and workmanlike manner, taking proper care and precautions to assure the safety of his employees. Blackwell v. Cities Service Oil Co., 532 F.2d 1006, 1007 (5th Cir. 1976), Cady v. E. I. DuPont de Nemours & Co., 437 F.Supp. 1030, 1033 (S.D.Tex.1977). There being no evidence of exceptional circumstances, appellant’s points of error one and two are overruled.

Appellant asserts that the trial court erred in basing its decision on the “no duty” concept abolished by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Pri- or to Parker there was no duty upon the occupier of premises to warn a person of dangerous conditions which were so open and obvious that, as a matter of law, he was charged with the knowledge and appreciation thereof. Parker eliminated consideration of the open and obvious nature of the hazard in the duty context. Parker did not abolish, however, the long standing rule, as restated in Abalos, supra at 631, that a “plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish [negligence] liability.” It was the absence of such a duty upon which the trial court premised its judgment.

The judgment of the trial court is affirmed.