author: PRESLAR, Chief Justice.

text:
    Frances Sandra WILLINGHAM, Appellant, v. FARMERS NEW WORLD LIFE INSURANCE COMPANY, Appellee.
    No. 6615.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 8, 1978.

      Russell M. Aboud, Michael L. Aaronson, El Paso, for appellant.
    Grambling, Mounce, Sims, Hardie, Galat-zan & Harris, John A. Grambling, Sam Sparks, H. Keith Myers, El Paso, for appel-lee.
   OPINION

PRESLAR, Chief Justice.

This is a suit upon an alleged contract of life insurance based upon an application for a policy of life insurance, a conditional receipt, and the payment of the first month’s premium. Questions on appeal involve notice and the sufficiency of the evidence to support the summary judgment for the Defendant. We affirm the judgment of the trial Court.

Appellant first asserts that the trial Court erred in granting summary judgment because she did not have notice of the hearing. We overrule this contention because the judgment of the trial Court recites fully the facts of notice of the hearing for summary judgment, and there is nothing in the record, nor has the Appellant offered anything, to controvert these recitations in the judgment. Such recitations of notice, then, are binding. Farmers and Stockmens’ Bank of Clayton v. White, 434 S.W.2d 143 (Tex.Civ.App.—Amarillo 1968, no writ); Kirkman v. Alexander, 280 S.W.2d 365 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.); Miller v. Permenter, 234 S.W.2d 459 (Tex.Civ.App.—Galveston 1950, writ ref’d n. r. e.).

In support of Appellee’s motion for summary judgment was an affidavit of the agent who took the application, and attached to that affidavit and referred to therein was the original of the application for insurance and what was described as a Xerox copy of the conditional receipt. Appellant contends that Xerox copy did not meet the standards of Rule 166-A(e), Tex.R.Civ.P., because such conditional receipt was not a sworn or certified copy within the meaning of the Rule. We overrule this contention for the reason that the objection was not raised prior to the hearing on the motion for summary judgment, but rather it was raised for the first time on motion for new trial; and for the further reason that the conditional receipt was a “sworn or certified” copy within the meaning of the Rule, and additionally it was proved up by the deposition of Appellant herself. An objection of this kind as to the form of the affidavit or its attachments cannot be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Maberry v. Julian, 479 S.W.2d 770 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App. —Dallas 1965, no writ); P. T. Poultry Growers, Inc. v. Darr Equipment Company, 537 S.W.2d 773 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). In an opinion not yet published, the Dallas Court of Civil Appeals has held that the objection cannot be raised for the first time on motion for new trial. Jones v. McSpedden, No. 19336, December 8, 1977.

That portion of Rule 166-A(e) relied on by Appellant provides:

“ * * * Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. * * * ”

The affidavit in this case provided: “Mr. Willingham was given a conditional receipt and attached to this Affidavit and marked as Exhibit B is a xerox copy of the conditional receipt given to him.” We are of the opinion that this meets the requirement of the Rule as being a “sworn or certified” exhibit. The Tyler Court of Civil Appeals has recently so held where similar language in the affidavit was employed. Broaddus v. Town North National Bank, 558 S.W.2d 909 (1977, no writ). Appellant’s deposition is before us, and when it was taken, her attorney produced a Xerox copy of the conditional receipt in question and she testified that it was a “true and correct copy of the original,” which was in her attorney’s possession.

The application for insurance provided that a medical examination should be completed by a Dr. Curtis Lyman. The conditional receipt provided: “No insurance is provided under the terms of the receipt unless all of its conditions have been satisfied.” One of the terms was: “If all medical examinations required by the Company have been completed * * Dr. Lyman’s question and answer deposition is unequivocal that the applicant was never given a physical examination by him. Appellant urges that the testimony of Dr. Lyman is that of an interested witness and it cannot be considered as doing more than raising an issue of fact. This is so, unless the testimony of the interested witness is clear, direct, and positive with no circumstances in the evidence tending to impeach or discredit such testimony. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965). We view the testimony of Dr. Lyman as being clear, direct and positive, and there are no circumstances in the record to impeach or discredit it. Additionally, we are of the opinion that the record does not show that Dr. Lyman is such an interested witness as to come within the above announced Rule. The application says to use Company appointed examiners only, and the Doctor’s testimony is that he is authorized to examine for this Company. The agent’s affidavit recites that he gave the applicant a draft with which to pay Dr. Lyman for the examination. We doubt that this set of facts makes him an “interested witness,” and for that reason and for the further reason that his testimony was clear, direct and positive, we overrule the point of error.

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    Eloy Flores ARMENDARIZ, Appellant, v. BILL SEARS SUPERMARKET NO. 1, a corporation, Appellee.
    No. 6655.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 8, 1978.
    Rehearing Denied March 8, 1978.

      W. R. Barnes, Joseph V. Gibson, III, Odessa, for appellant.
    Will Hadden, Odessa, for appellee.
   OPINION

WARD, Justice.

The Appellant, Eloy Flores Armendariz, instituted this negligence action against the Appellee, Bill Sears Supermarket No. 1, a Corporation, because of his arrest and detention in County jail as a result of a warrant for his arrest being issued pursuant to a complaint having been filed charging him with passing a forged check. Three special exceptions were levelled against the pleadings pointing out that the Appellant’s remedy was only for malicious prosecution, that necessary allegations for that cause of action of want of probable cause were missing from the pleadings, that allegations of negligence and proximate cause were impermissible substitutes for the real cause of action, and that the pleadings on their face showed that the real cause of action for malicious prosecution was barred by the one-year Statute of Limitations. Tex.Rev.Civ.Stat.Ann. art. 5524. The special exceptions were sustained, the Appellant amended but declined to meet the objections made to the pleadings, and the cause of action was dismissed. We affirm.

The action of the trial court in sustaining the special exceptions and in ordering the dismissal for the failure to state a cause of action requires that on this appeal we assume as true all factual allegations set forth in the Appellant’s first amended petition. Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.). The pleadings are to the effect that on August 18, 1973, the Appellant was working in Houston when unknown to him an unknown person passed a forged check at one of the Appellee’s stores in Odessa. The check was a forgery, was payable to “Eloy Flores,” and the store clerk told the police in Odessa that the Appellant had passed the check. Upon investigation, the police were told by Appellant’s mother that the Appellant was working in Houston on the date of the alleged offense, and she gave the police the Appellant’s photo. This was then shown to the store clerk and the clerk again insisted that Appellant gave her the check. The mother then obtained a more recent photo and showed this to the clerk and told her where the Appellant was working in Houston, and the clerk continued to insist that the Appellant was the one who gave her the forged instrument. No effort was thereafter made by the Appellee to investigate the information given to it, either before or after charges had been filed in Odessa. It was not until February 19, 1974, that the Appellant was arrested in Houston and placed in the County jail, and he remained there until February 28, 1974. It was only upon his promise that he would travel to Odessa at his own expense and take a lie detector test that he was able to secure his release from the Houston jail. On March 5th, he submitted himself to the Odessa police for testing on the polygraph machine and, as a result of the test, the police caused the criminal charges pending against the Appellant to be dismissed. The Appellant further alleged substantial damages; that the acts and his damages were caused by the negligence of the Appellee in causing the criminal charges to be filed, in identifying the Appellant as the person passing the forged instrument, in failing to investigate the Appellant’s whereabouts on August 18, 1973, before causing the complaint to be filed, in failing to investigate his whereabouts after the complaint was filed, and in failing to cause the charges against him to be dismissed after Appellee was informed that he was in Houston on August 18th; and that all of the acts constituted negligence and were a proximate cause of the damages suffered by him.

Appellant readily admits that he has not alleged a cause of action for malicious prosecution, and further concedes that no cause of action was alleged when he asserted the Appellee’s negligence in filing the criminal action. It is his position that the circumstances in this case were most unusual because of the extreme period passing between the filing of the charges and his arrest; that the Appellee did act in a negligent manner in this case after the charges were filed as the Appellee was given information which would have caused a reasonable prudent person under the same or similar circumstances to make a further investigation to determine if Appellant was truly the person who passed the forged instrument; and that a simple phone call to the Appellant’s employer in Houston would have immediately revealed the true facts of the Appellant’s innocence. The Appellant points out that the allegations of negligence in his pleadings, which he continues to insist upon, are: (1) that Appellee was negligent in failing to investigate Appellant’s whereabouts on August 18, 1973, after criminal charges were filed against Appellant and after being told that Appellant was in Houston on that date; and (2) that Appel-lee was negligent in failing to cause the charges against the Appellant to be dismissed after it was informed that Appellant was in Houston on August 18, 1973.

However, regardless of what approach is taken, the arrest, detention and damages alleged were all caused by the Appellee having set in motion the machinery of the law against the Appellant, however rusty it might be. The policy of the law then intervenes and protects the citizen instituting the criminal proceeding since that policy favors the exposure of crime, while a recovery against the complaining witness would obviously tend to discourage it. As a result, the only protection available to the accused is the action for malicious prosecution, which is more difficult to maintain, and affords much less protection to the interest of the accused than any action of false imprisonment or negligent imprisonment. Parker v. Dallas Hunting and Fishing Club, 463 S.W.2d 496 (Tex.Civ.App.—Dallas 1971, no writ); Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906 (Tex.Civ.App.—San Antonio 1949, writ ref’d n.r.e.); Harper, Malicious Prosecution, False Imprisonment and Defamation, 15 Tex.L.Rev. 157 (1937); 37 Tex.Jur.2d Malicious Prosecution, Secs. 1-3 (1962). The complainant is not required to first ascertain what defense a defendant may be able to offer before he files charges when he has probable cause for doing so. Mont gomery Ward & Co. v. Kirkland, supra. We hold that the same rule should be applied to the Appellant’s attempt to allege a cause of action based on failure to investigate the facts after charges were filed or to cause the charges to be dismissed. The Appellant does have his remedy of malicious prosecution, but the public policy requires and demands that the rules governing such action be strictly adhered to. Parker v. Dallas Hunting and Fishing Club, supra at 499. Since neither malice nor lack of probable cause have been alleged, and the one-year Statute of Limitations for malicious prosecution has expired, the trial court was correct in sustaining the special exceptions and Appellant’s points are overruled.

The judgment of the trial court is affirmed.


author: CORNELIUS, Chief Justice.

text:
    In the Matter of the MARRIAGE OF David Allen GOODWIN and Shirley Jean Goodwin.
    No. 8534.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Don C. Cooksey, Texarkana, for appellant.
    Harry B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   CORNELIUS, Chief Justice.

By judgment rendered on March 28, 1977, the District Court of Bowie County dissolved the marriage of David Allen Goodwin and Shirley Jean Goodwin, divided their community estate and appointed Mrs. Goodwin managing conservator of their two children. Mr. Goodwin has appealed from that judgment on the grounds that he was denied a hearing on the issues which were involved, and that he was deprived of the right to obtain a record of the proceedings or to perfect his bill of exceptions to the action of the court in excluding the proffered testimony of certain witnesses.

On December 14, 1976, the trial court entered temporary orders concerning the custody and support of the children. Final hearing on the merits was set for March 2. Mr. Goodwin has stated in his sworn motion for new trial and in his brief in this Court that on March 2 he appeared in person and by his attorney, together with several witnesses, intending to present testimony and to have the court reporter transcribe the proceedings, but that the trial judge called the parties into his chambers, announced his final decision on the issues involved and informed them that no witnesses would be heard. However, the judgment which was subsequently entered recited that on March 2, 1977, the court “heard the evidence and argument of counsel” and that “the making of a record of testimony was waived by the parties with consent of the court.” The reporter has certified that no record was made of any of the proceedings. After the judge announced his decision, appellant’s trial counsel withdrew and his present counsel was retained. Some five days after the court’s announcement, but before judgment was entered, appellant’s present counsel filed an instrument styled “MOTION TO ALLOW PETITIONER A BILL OF EXCEPTION” which complained of the lack of a hearing, and requested:

“. . . that the Court set a time and place for such Bill of Exception and that Petitioner be allowed to dictate to the official court reporter a Bill of Exception and that no Decree of Divorce be signed or filed until such hearing is held.”

The court took no action on the motion, but proceeded to enter judgment in accordance with his prior announcement. Appellant thereupon filed his sworn motion for a new trial, alleging as grounds therefor the denial of a record, the refusal to hear evidence and the refusal to allow the making of a bill of exceptions. Upon request, the trial judge made findings of fact and conclusions of law on the issues of divorce, property division and custody, but appellant’s motion for new trial was overruled by operation of law and no relief was granted to him with respect to the bill of exceptions or the availability of a record.

From a review of the foregoing facts, and regardless of the other contentions raised here, we think it is clear that appellant was denied the opportunity to make a bill of exceptions as permitted by Tex.R.Civ.P. 372. When the testimony of a witness is excluded, the aggrieved party, in order to obtain a reversal based upon the court’s action, must show by a bill of exceptions what the witness’ testimony would have been. De La Hoya v. Saldivar, 513 S.W.2d 259 (Tex.Civ.App. El Paso 1974, no writ); Bowles v. Bourdon, 213 S.W.2d 713 (Tex.Civ.App. Galveston 1948), aff’d, 148 Tex. 1, 219 S.W.2d 779 (1949); Johnson v. Poe, 210 S.W.2d 264 (Tex.Civ.App. Galveston 1948, writ ref’d n. r. e.). And it is reversible error to refuse a party the opportunity to perfect such a bill of exceptions. Biggers v. State, 358 S.W.2d 188 (Tex.Civ.App. Dallas 1962), writ ref’d n. r. e. per curiam, 360 S.W.2d 516 (Tex.1962); Smith v. State, 490 S.W.2d 902 (Tex.Civ.App. Corpus Christi 1972, writ ref’d n. r. e.); Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725 (Tex.Civ.App. Houston-14th Dist.1974, no writ); Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App. Dallas 1965, writ ref’d n. r. e.).

Tex.R.Civ.P. 372 provides in part that:

“If either party during the progress of a cause is dissatisfied with any ruling, . or other action of the court, he may except thereto at the time said ruling is made, . . . and at his request time shall be given to embody such exceptions in a written bill .
“(1) Anything occurring in open court or in chambers that is reported and so certified by the court reporter may be included in the statement of facts rather than in a bill of exception ; . . (Emphasis supplied.)

Thus, when testimony has been excluded, a party may make a bill of exceptions in either of two ways: by eliciting the witness’ testimony by questions and answers recorded by the court reporter and included in the statement of facts; or by preparing a separate, formal bill of exceptions which describes the court’s ruling and includes a summary of the facts which the witness would have related had he been allowed to do so. Dorn v. Cartwright, supra; Gray v. Mills, 206 S.W.2d 278 (Tex.Civ.App. Fort Worth 1947), aff’d, 147 Tex. 33, 210 S.W.2d 985 (1948); 4 Tex.Jur.2d, Rev., Part I, Appeal and Error—Civil Cases, Sec. 483, p. 343.

While this cause was still pending in the district court and before judgment was entered, appellant requested in writing the right to produce the excluded testimony on a bill of exceptions to be included in the statement of facts. Although he could have prepared separate, formal bills of exceptions containing summaries of the expected testimony, we hold that appellant had the right under Rule 372 to make his bill by questions and answers and to have the same included in the statement of facts. We find nothing in the cases to indicate that, in a situation of this kind, the trial court has the discretion to relegate a party to the use of separate, formal bills of exception only. Compare, for example, Biggers v. State, supra; Smith v. State, supra.

Appellee urges that appellant should not be granted any relief on appeal because he has not challenged the trial court’s findings of fact and conclusions of law on the merits of the case. The answer to that contention is that appellant is not complaining of the findings and conclusions as such; he is complaining because competent and relevant evidence which the court should have heard was excluded, and that he was denied the opportunity to show the materiality of that evidence by a bill of exceptions as permitted by Rule 372. Such a complaint is not waived by a failure to challenge the court’s findings.

For the reasons stated, the judgment of the trial court is reversed and the cause is remanded for a new trial.

      . See Sec. 11.14(d), Tex.Family Code Ann., which provides that a record of the proceedings must be made unless waived by the parties with consent of the court. Unless waived, it is the duty of the trial court to see that such a record is made. See Rogers v. Rogers, 561 S.W.2d 172 (Tex.) (1978).


author: CIRE, Justice.

text:
    Earl WILLIAMS et al., Appellants, v. Le GARAGE De La PAIX, INC., Appellee.
    No. 1760.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 15, 1978.
    Rehearing Denied March 8, 1978.

      George M. Bishop, Houston, for appellants.
    Milton Schwartz, Houston, for appellee.
   CIRE, Justice.

Earl Williams and George Catania appeal from an adverse judgment which ordered them to pay $25,900 to Le Garage De La Paix, Inc., appellee, due to a breach of a five year lease agreement which was executed by the parties.

Appellee Le Garage De La Paix, Inc. (Le Garage) filed its original petition in county civil court on July 10,1974 and alleged that appellants had executed a five year lease agreement with appellee covering the premises at 243 Westheimer and that they were delinquent on the rental payment; specifically on their June 1974 payment in the amount of $2,000 monthly rent, $1,366.75 monthly insurance premiums and $60.00 for monthly tax payments, totaling $3,366.75 for the month of June (the petition incorrectly added the three figures). The petition also alleged that these payments were to be made in advance and that future payments would become due and accrue until December 1, 1977, the last month of the rental period, or until the date of trial, whichever event occurred first. Appellants subsequently filed a “Motion to Dismiss for Want of Jurisdiction” which was overruled by the trial court. The case proceeded to trial and resulted in a jury verdict and judgment favorable to appellee.

The appellants assert that the trial court erred in twelve separate points. Points of error one and two claim that the trial court erred in assuming jurisdiction and in failing to dismiss the suit because appellee, in its petition, asserted a claim in excess of the $5,000.00 jurisdictional limit for a county court. We agree.

The question of jurisdiction, insofar as the amount in controversy is concerned, is determined by the petition, and is concluded by the averments insofar as they state facts in relation to the thing in controversy. The amount in controversy is determined by the value to the plaintiff of the right that he asserts in good faith in his pleading setting forth the operative facts constituting his cause of action.

15 Tex.Jur.2d Courts § 71 at 506-508 (1965) (footnotes omitted). The petition, filed on July 10, actually sought payment not only for the month of June but also for July since the payments were specifically due in advance. Therefore, on July 10, the date of filing, appellee’s petition actually alleged an amount in excess of the $5,000.00 jurisdictional maximum which a county court at law can award. See Tex.Rev.Civ.Stat.Ann. art. 1970a (Supp.1978).

Each month’s rental under a lease contract constitutes a separate and independent cause of action, and appellee could have sued for delinquent rental only for the month of June 1974. This amount would have been within the court’s jurisdiction.

Appellee chose, however, to sue for all monthly rentals “to accrue until and including December 1, 1977.” Even if he had filed suit prior to July 1, he still would have put in issue a sum in excess of the $5,000.00 jurisdictional limit of the county court. We recognize that this holding is in conflict with the language in Regal Properties v. Donovitz, 479 S.W.2d 748 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.). The court there stated:

Appellant-plaintiff also asked the court, in its original pleading, to allow it to recover each month’s rental on the lease contract, as the same accrued. This it had the right to do since where rent is payable monthly each month’s rent constitutes a separate and independent cause of action. Davidson v. Hirsh, 45 Tex.Civ.App. 631, 101 S.W. 269 (1907); Williams v. Houston Cornice Works, 46 Tex.Civ. App. 70, 101 S.W. 839 (1907). The new cause of action for each month’s rent as it accrued did not destroy the jurisdiction of the court. Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (Tex.Comm’n App.1924); and Buie-Crawford Co. v. Cleburne National Bank, 111 S.W.2d 830 (Tex.Civ.App., Waco 1937).

479 S.W.2d at 750.

We disagree with the language in the Regal case because we believe that the only cases in which a court can entertain suits and enter judgments in excess of their jurisdictional limits are Texas Rule of Civil Procedure 752 situations or similar cases where the court has jurisdiction of the main suit, and that part of the suit which ordinarily would be without the court’s jurisdiction is but ancillary to the main cause of action. Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962); Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (Tex.Comm’n App. 1924, opinion adopted).

Because of our ruling, a discussion of appellee’s cross-points and appellants’ remaining points of error is not necessary.

The judgment is reversed and the case is dismissed.


text:
    KING TITLE COMPANY, INC., Appellant, v. Leland CROFT et ux., Appellees.
    No. 6659.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 15, 1978.

      Gloria T. Svanas, Odessa, for appellant.
    Joseph Connally, Bill W. McCoy, Odessa, for appellees.
   OPINION

PRESLAR, Chief Justice.

This is a suit on a sworn account for labor and materials furnished. The issue on appeal is submission of proper issues for the defense of failure of consideration. Following trial by a jury, a take nothing judgment was entered. We reverse and remand.

Referring to the parties as they appeared in the trial Court, Appellant as Plaintiff filed suit on an account for labor and materials furnished in laying new flooring in two rooms of the Defendants’ home. Defendants filed a sworn denial of the account, and also pled the affirmative defense of failure of consideration, claiming poor workmanship in laying the flooring. The parties stipulated that the contract price agreed upon was $1,899.00, that Defendants had paid $1,000.00, and that the balance due was $899.00. There was ample evidence to support the submission of an issue or issues as to poor workmanship. The Court submitted a single issue as follows:

“What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence the Plaintiff is entitled to recover from the Defendants?
“Answer in dollars and cents or none as the case may be.”

The jury answered “none” to the issue.

Under Rule 94, Tex.R.Civ.P., failure of consideration is an affirmative defense. The burden of proof as to such issue was on the Defendants. Gieb v. Goebel Brewing Co., 176 S.W.2d 975 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.); New Trends, Inc. v. Stafford-Lowdon Company, 537 S.W.2d 778 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.). To present the issue of failure of consideration, it was the duty of the Defendants to present proper issue or issues to secure findings on them. Rule 279, Tex.R.Civ.P., reads in part:

“ * * * Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party. * * * ” (Emphasis added).

The Plaintiff complied with this Rule by objecting to the omission from the charge of an issue on failure of consideration, and Plaintiff went further and requested special issues as follows:

“¿■SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that King Tile Company, Inc. failed to use good workmanship in laying the floor in question?
“Answer ‘Yes’ or ‘No’.
* * ⅜ ⅜ * ⅜
“If you have answered Special Issue No. 1 ‘Yes’ and only in that event, then answer Special Issue No. 2.
“SPECIAL ISSUE NO. 2.
“What sum of money, if any, do you find from a preponderance of the evidence would reasonably compensate the Defendant for the failure of the Plaintiff to use good workmanship in laying the floor in question, if you have so found?
“Answer in dollars and cents, if any, or none as the case may be.”

As indicated, the trial Court refused to submit these issues and submitted the single issue above.

When the Court submits the case upon special issues, it must submit the controlling issues made by the written pleadings and the evidence. Home Savings Association of Dallas County v. Crow, 514 S.W.2d 160 (Tex.Civ.App.—Dallas 1974), aff'd, 522 S.W.2d 457 (Tex.1975); Rule 277, Tex.R.Civ.P. That was not done in this case.

The judgment is reversed and the case is remanded to the trial Court for another trial.

OSBORN, J., not sitting.


author: OSBORN, Justice.

text:
    The STATE of Texas, Appellant, v. T. C. BATESON CONSTRUCTION COMPANY et al., Appellees.
    No. 6713.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 15, 1978.

      John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Austin, for appellant.
    Elliott, Churchill, Hansen, Dyess & Max-field, Roger A. Hansen, Gary A. Maxfield, Dallas, for appellees.
   OPINION

OSBORN, Justice.

This appeal is from an order of dismissal in a case in which the trial Court sustained a plea in abatement because of a prior pending suit. We affirm.

The appellee, T. C. Bateson Construction Company, was the prime contractor in the construction of The University of Texas at San Antonio. The original completion date for the last building was May 8,1974. That building was not completed until January, 1976. As a result of the delayed construction, costs for the subcontractors and the prime contractor increased. Bateson contended that delays resulted from extra work ordered during construction, and that the extra costs should be charged to the State. The University incurred additional charges and costs because of the delay in being able to occupy its buildings.

On August 2, 1976, Bateson filed suit in Travis County against the State and named ten subcontractors as Third-Party Plaintiffs. That suit is still pending. On March 1,1977, the State filed suit in Bexar County against Bateson and six insurance companies as Sureties. Bateson and the Sureties filed a plea in abatement asserting the existence of the prior suit in Travis County, and sought a dismissal of the suit in Bexar County.

At the hearing on the plea in abatement, the Court admitted into evidence certified copies of the two petitions in the pending suits. The only witness was Mr. George K. Cheves, Executive Vice President of Bate-son. He testified concerning the delays in construction, the claims resulting from such delays, and the efforts being made to resolve those claims between the parties. Correspondence was admitted into evidence as to the agreement between the parties as to how they would try to settle the various disputes. Although the State contends that the Plaintiffs in the Travis County suit were making no effort to prepare for trial in that case and thus it should be permitted to proceed with the Bexar County suit, no evidence was presented to support that contention.

Both sides in this case recognize the rule set forth in Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974). In that case, Chief Justice Greenhill, writing for the Court said:

“The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800 (1958). Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement. ⅜ * ”

But in this case, the State relies upon the next paragraph of the opinion, where the Court said:

“There is an exception to the rule of Cleveland v. Ward * * *. It has been held that the plaintiff in the first suit may be guilty of such inequitable conduct as will estop him from relying on that suit to abate a subsequent proceeding brought by his adversary. * * * ”

The record in this case does not support the application of the exception to the general rule. Seldom does litigation proceed as expeditiously as both parties might like, but in this case, involving a prime contractor, many subcontractors and millions of dollars, some delay could be expected. The fact that a suit filed in August, 1976, had not proceeded to trial by the time of the plea in abatement hearing in April, 1977, is no reason to believe it cannot and will not be tried within a reasonable time. If the State files a cross-action in the Travis County case, the trial Court can and should see that the rights of all parties are protected and may even order a severance for trial of the State’s suit, if that be necessary. Rule 174, Tex.R.Civ.P.

In fact, there exists the possibility that the State’s claim may be a compulsory counterclaim under Rule 97, Tex.R.Civ.P., since all claims appear to rise out of the same construction contract. Of course, we do not now decide whether there are other parties whose presence is required and over whom the trial Court cannot acquire jurisdiction in order for Rule 97 to be applicable. Certainly, it should be able to acquire jurisdiction over any surety on a contract being performed in this State. Rule 97 makes the issue of “jurisdiction” and not “venue” controlling.

The State also contends that the plea in abatement should not have been sustained because the Sureties, who were parties to the Bexar County suit, were not parties to the Travis County suit, and their presence was necessary for the State to obtain full relief in its claim against the contractor. Since the Sureties were only secondarily liable, this does not prevent the application of the general rule which requires that the second suit be abated. Eastland County v. Davisson, 13 S.W.2d 673 (Tex.Com.App.1929, holding approved); Tide Water Oil Co. v. Railroad Commission, 76 S.W.2d 553 (Tex.Civ.App.—Austin 1934, no writ).

It is also contended that the trial Court erred in dismissing the suit in Bexar County rather than abating it pending disposition of the Travis County suit. The language used in Curtis v. Gibbs, supra, says that the second case “must be dismissed” where the plea is sustained. This has consistently been the holding of the Courts of this State in such proceedings. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067 (1930).

The Appellant’s two points of error are overruled. The judgment of the trial Court is affirmed.


text:
    SEGUIN TRAILERS, INC., Appellant, v. SULLAIR OF HOUSTON, INC., Appellee.
    No. 6715.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 15, 1978.

      Hardberger, Branton & Herrera, Inc., James L. Branton, Paul Andrew Míreles, San Antonio, for appellant.
    Charles J. Michael, Houston, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a plea of privilege case wherein Appellee’s plea of privilege to be sued in Harris County was granted and the suit was transferred from Guadalupe County. Involved is the rule that a voluntary non-suit after the filing of a plea of privilege fixes the venue of any subsequent suit between the parties involving the same subject matter in the County of the defendant’s residence. We affirm the judgment of the trial Court.

Appellant first filed this action in Bexar County and, upon the filing of Appellee’s plea of privilege, a non-suit was promptly filed and the matter was refiled in Guadalupe County. At the hearing from which this appeal is taken, Appellee moved that the non-suit in the prior cause filed in Be-xar County was res judicata to the issue of venue in Guadalupe County. Before ruling on Appellee’s motion, the trial Court permitted testimony by the attorney for Appellant that he accidentally filed the suit in Bexar County, and that such mistake was due to an accidental and good faith administrative error that occurred in his office. The trial Court then sustained the plea of privilege by granting Appellee’s motion and not hearing evidence on the merits of the venue case.

The general rule is that if the plaintiff takes a non-suit while the defendant’s plea of privilege is pending, the effect of the dismissal is an admission that the defendant’s plea of privilege is good and venue of the subject matter between the same parties is conclusively established to be in the County of the defendant’s residence. Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958 (1940); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222 (1943). The Appellant seeks to avoid the general rule by pointing out that its non-suit was taken at a point when the only thing before the Court was the defendant’s plea of privilege, that it never filed a controverting affidavit, and no decision was ever made by the Court in the first case on the venue question. From our review of the cases applying the general rule, we conclude that it becomes applicable at anytime after the filing of the plea of privilege, if plaintiff takes a non-suit. In Royal Petroleum Corporation v. McCallum, supra, the rule was applied where the plaintiff had taken a non-suit two days after the plea of privilege was filed without controverting such plea. Other cases applying the rule where the non-suit was taken prior to the filing of a controverting affidavit are: Dallas Joint-Stock Land Bank v. Webb, 48 S.W.2d 434 (Tex.Civ.App.—San Antonio 1932, writ dism’d); Humble Oil & Refining Co. v. Pettaway, 76 S.W.2d 1069 (Tex.Civ.App.— Texarkana 1934, no writ); Cassel v. Edwards, 161 S.W.2d 362 (Tex.Civ.App.—Amarillo 1942, no writ); Slack v. Allen Military Academy, 289 S.W.2d 783 (Tex.Civ.App.—Waco 1956, writ dism’d). An exhaustive review of the rule and its application from the time of non-suit after the filing of the plea of privilege to non-suit while on appeal is found in 85 A.L.R.2d 993.

Much of what Appellant urges here comes from the dissenting opinion of Justice Looney in Tempelmeyer v. Blackburn, supra, when that case was before the Dallas Court of Civil Appeals. 176 S.W.2d 582 (1943). That case was appealed to the Commission of Appeals, and in an opinion adopted by the Supreme Court, Justice Looney’s views were not upheld, the Court using language that is applicable here:

“A statutory plea of privilege is more than a pleading. It is prima facie proof of the defendant’s right to have the venue changed from the county in which the suit was filed to the county named in the plea. Art. 2007, Vernon’s Texas Statutes, Rule 86, Rules of Civil Procedure. When the appellants took a nonsuit as against appellee they thereby abandoned their contest of his plea of privilege and made the admission in court that it was well taken. * * * ”

In answer to a certified question, the Commission of Appeals also ruled on a situation existing here. It held that the rule applied even though the refiling of the case was in a different County.

There being no findings of fact and conclusions of law, it must be presumed that the Court found against Appellant that the filing of the suit in Bexar County was accidental. We conclude that even if we assume the filing was accidental, it does not excuse the application of the rule. The judgment of the trial Court is affirmed.


text:
    PRASSEL CONSTRUCTION COMPANY, Appellant, v. VAN DELDEN CONSTRUCTION COMPANY et al., Appellees.
    No. 6722.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 15, 1978.
    Rehearing Denied March 15, 1978.

      Allison & Plumb, Charles E. Sweetman, San Antonio, for appellant.
    Groce, Locke & Hebdon, Cynthia Day King, John Compere, San Antonio, for ap-pellees.
   OPINION

OSBORN, Justice.

This appeal is from a summary judgment based upon the compulsory counterclaim provision of Rule 97, Tex.R.Civ.P. We reverse and remand.

In August, 1974, Prassel Construction Company, as contractor, and Van Delden Construction Company, as subcontractor, entered into a contract which provided that Van Delden would perform certain construction work as part of the building of a retail store in San Antonio. Subsequently, the mezzanine collapsed. As a result of that collapse, Van Delden sued the store owner and Prassel. In January, 1976, Pras-sel filed a counterclaim in that same suit asserting a right to recover for certain layout work performed by the contractor for the subcontractor, and also seeking to recover damages for delays in performance of the work by the subcontractor beyond the time limits specified in the construction contract. On June 10, 1976, the Court granted a joint motion of the parties and, based upon an agreed settlement, dismissed both the original suit and the counterclaim with prejudice.

In the meantime, St. Paul Insurance Company in August, 1975, paid a claim of Prassel for physical property damage in the amount of $6,260.92 as the cost of replacement of the collapsed mezzanine. On August 13,1976, St. Paul filed this subrogation suit against Van Delden to recover such payment. Van Delden answered and filed a motion for summary judgment asserting that the present suit is barred by the compulsory counterclaim provision of Rule 97(a), Tex.R.Civ.P. It also asserted the doctrine of res judicata, but that doctrine is not relied upon or mentioned in the briefs in this case. Attached to the motion is a copy of the counterclaim of Prassel in the first suit, a copy of the construction contract, and a copy of the motion for and order of dismissal. St. Paul filed an affidavit of its claim-loss supervisor in reply in which facts are stated concerning payment of the claim by St. Paul to Prassel. It also states St. Paul had no knowledge of the prior suit between Van Delden and Prassel.

Most significantly, the record does not contain the original pleading filed by Van Delden in the first suit. Without proof of the original pleading in that case, it is impossible to know what was a compulsory counterclaim in that suit. In order for Van Delden to establish that the subrogation claim now asserted by St. Paul in the name of Prassel was a compulsory counterclaim in the first suit filed by Van Delden, it was incumbent that it show what was originally pled in the first suit. The copy of the counterclaim in the first suit does not supply the answer. The failure of St. Paul to point out this defect in Appellees’ summary judgment proof is of no consequence because there is no duty on the non-movant at the summary judgment hearing where the movant’s proof is not sufficient to support its summary judgment. Summary judgments are not granted upon default of the non-moving party. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). Having failed to establish as a matter of law that the claim now asserted was a compulsory counterclaim in the original suit filed by Van Del-den, we sustain Appellant’s Point of Error No. 1.

It is also asserted that Rule 97(a) does not apply because St. Paul was not a “pleader” in the first suit and did not have notice of that suit, and was under no obligation to intervene and protect its rights in that suit. St. Paul relies upon the holding in Price v. Couch, 462 S.W.2d 556 (Tex.1970). The Court, in that case, left unanswered the issue which could control the decision in this case. Initially, the Court recognized that Rule 97(a) does not require a property damage carrier who is not a “pleader” in another case to intervene in such other case filed against its insured. But the Court left unanswered the issue of whether an intervention is necessary in such a case where the insured files a counterclaim for damages which have not been assigned under subro-gation.

In our case, the insured, Prassel, did file a counterclaim against Van Delden in the first suit for damages resulting from breach of contract. St. Paul now sues Van Delden for damages resulting from negligence in the work performed under that same contract. Our record reflects that St. Paul did not know of Van Delden’s original suit. The record is silent as to whether Van Delden knew of St. Paul’s subrogation rights. Where such rights are known, one may by appropriate action protect from subsequent claims. See Fort Worth & Denver Ry. Co. v. Ferguson, 261 S.W.2d 874 (Tex.Civ.App.—Fort Worth 1953, writ dism’d). If a party does not seek to protect itself from such claims, it should not be heard to complain when they arise. With today’s discovery procedures, there should be no difficulty in determining when subro-gation rights exist. Apparently, no inquiry was made in this case.

In Southern Pacific Transport Co. v. State Farm Mutual Insurance Co., 480 S.W.2d 59 (Tex.Civ.App.—Corpus Christi 1972, no writ), the Court refused to apply the doctrine of res judicata in a subrogation suit where the jury failed to find that the insurer had notice of a prior suit by the insured. The Court, in that case, noted that notice was necessary before the doctrine against splitting causes of action would be applied, and that the burden is on the party asserting the defense. That rule makes good sense. We conclude that since Van Delden did not seek to determine whether subrogation rights existed and then join the real party in interest, and does not now contest St. Paul’s position that it had no knowledge of the first suit, then Rule 97(a) does not apply to the insurer, even though its insured filed a counterclaim in the first suit. Points of Error Nos. 2 and 3 are sustained.

The judgment of the trial Court is reversed and the case is remanded to the trial Court.


author: PER CURIAM.

text:
    Helen Bays HARRELL, Relator, v. The Honorable John L. FASHING, Judge of the County Court at Law No. Two, El Paso County, Texas, Respondent.
    No. 6737.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 15, 1978.
    Rehearing Denied March 15, 1978.

      Glen H. Shelton, Jr., El Paso, for relator.
    John L. Fashing, County Judge, El Paso, for respondent.
   OPINION

PER CURIAM.

Relator seeks a mandamus under Tex. Rev.Civ.Stat.Ann. art. 1824, to compel the Honorable John L. Fashing, Judge of the County Court at Law No. Two, to proceed to trial in Cause No. 25795.

On April 15, 1977, Relator’s daughter filed a petition for temporary guardianship, seeking appointment as guardian of the person and estate of Relator on the grounds that Relator was mentally incompetent to take care of her person or property. The temporary guardianship was granted and became permanent on June 15, 1977. On June 29,1977, Relator filed a contest to the appointment of the guardianship, and on July 11, 1977, filed a motion for new trial on the basis that the evidence of Relator’s mental incompetence as presented was insufficient to authorize the appointment of a permanent guardian. Judge Fashing granted Relator’s motion for new trial and scheduled trial for September 12, 1977.

On August 24,1977, a hearing was scheduled on the guardian’s request for a physical and mental examination of the Relator. At that time, Judge Fashing ordered Relator to submit to an examination by Dr. Reuben M. Allen, a psychiatrist, and the examination was scheduled for September 7, 1977. At all times, Relator has objected to the examination on the contention that evidence of her medical condition is immaterial to the issue of mental incompetence. Relator has refused to submit to the examination.

On September 12,1977, the County Court at Law, Judge Fashing Presiding, heard evidence on the guardian’s motion for continuance. The guardian requested the continuance because of Relator’s failure to submit to the examination by Dr. Allen. At the conclusion of the hearing, the guardian’s motion for continuance was granted and trial has been delayed until Relator submits to examination as ordered.

In her petition for writ of mandamus, Relator contends that a continuance is not a proper sanction for failure to submit to examinations under Tex.R.Civ.P. 167a, and that Judge Fashing should be compelled to proceed to trial of the cause.

Tex.R.Civ.P. 170 and 215a provide sanctions for a party’s refusal to obey a Court order for specified discovery production. Under these rules, staying a proceeding until the order is obeyed is a permissible sanction. However, no sanctions are specifically provided in the aforementioned rules for a party’s refusal to submit to a physical and mental examination. Therefore, Relator contends that Judge Fashing does not have the power to stay the proceedings and is limited to a contempt proceeding to force Relator’s compliance.

We disagree with Relator’s contention, and we rely on the reasoning of Saenz v. Sanders, 241 S.W.2d 316 (Tex.Civ.App.—San Antonio 1951, no writ), in support of our position. In Saenz, the Relator had refused to answer deposition questions in a lawsuit which he instituted. Justice Pope, writing for the majority, held that one who seeks aid of the Court must submit himself to all legitimate orders and processes of that Court, and that such Court is not limited in enforcement of its orders to contempt proceedings only, but in appropriate instances may conditionally stay proceedings. In the case at bar, Relator has refused to obey a valid Court order. No valid excuse has been given for this non-compliance. Judge Fashing has not exceeded his authority in so controlling the orderly process of this case.

The mandamus is refused.


author: JAMES, Justice.

text:
    CITY OF WACO, Appellant, v. Alice L. HAYNES, Appellee.
    No. 5746.
    Court of Civil Appeals of Texas, Waco.
    Feb. 16, 1978.
    Rehearing Denied March 9, 1978.
    For Concurring Opinion see, 564 S.W.2d 388.

      Jerry P. Campbell, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    J. Robert Sheehy and Robert A. Watson, Sheehy, Lovelace & Mayfield, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a slip and fall case. Plaintiff-Ap-pellee Mrs. Alice Haynes brought this suit against the City of Waco, Appellant herein, for damages for personal injuries growing out of a fall when she tripped upon a crack in the sidewalk immediately outside the main entrance of the Sul Ross Recreation Center, which is owned and operated by the City, as she was leaving a Senior Citizens’ function. Trial was had to a jury which resulted in a verdict favorable to Plaintiff-Appellee Mrs. Haynes. Pursuant to and in harmony with the jury verdict, the trial court entered judgment in favor of Mrs. Haynes against the City in the amount of $15,000.00 and costs, from which the City appeals. We affirm.

In answer to special issues the jury found:

(1) The sidewalk where Plaintiff fell was in a defective condition at the time and on the occasion in question, “defective condition” having been defined as “such a condition that a reasonably prudent person could have foreseen that injury could likely result to the pedestrians using same if such condition was not corrected.”

(2) That such defective condition was a proximate cause of Plaintiff’s injuries.

(3) The City was making a special use of the sidewalk in question at the time and on the occasion in question. “Special use” was defined as “the use of the sidewalk in question by the City of Waco for ingress and egress to the property in question by a specific group of users other than usual pedestrian traffic normal for sidewalks.”

(4) The sidewalk where Plaintiff fell was not in a good and safe condition at the time and on the occasion in question;

(5) In failing to keep said sidewalk in a good and safe condition the City was negligent;

(6) Which was a proximate cause of Plaintiff’s injuries.

(7) The sidewalk where Plaintiff fell had cracked and one side of the crack was higher than the other;

(8) The Plaintiff caught the heel of her shoe on the crack causing her to fall;

(9) A reasonably prudent man would not have permitted the crack in the sidewalk to continue without repair because it was likely to produce hurt;

(10) Such condition had existed a sufficient length of time prior to Plaintiff’s fall that the City, or its agents and employees, in the exercise of ordinary care, discovered or should have discovered such condition and should have repaired the same.

(11) Failure of the City to repair the sidewalk prior to Plaintiff’s fall was negligence;

(12) Which was a proximate cause of Plaintiff’s injuries.

(13) The jury failed to find that Plaintiff Mrs. Haynes failed to keep a proper lookout.

(14) No answer to proximate cause issue conditionally submitted.

(15) No answer to the comparative negligence issue which was submitted upon the condition that the negligence of more than one person proximately caused the occurrence in question.

(16) In answer to the damage issue inquiring as to Plaintiff’s past and future pain and suffering, the jury answered, “none.”

(17) Plaintiffs past medical expenses were found to be $2345.00;

(18) Plaintiff’s future medical expenses were found to be $12,655.00.

Based upon the jury verdict, the trial court entered judgment in favor of Plaintiff Mrs. Haynes against the City for $15,-000.00 and costs, from which the City appeals.

Defendant-Appellant’s points of error are:

(1) Plaintiff-Appellee should be charged in law with notice, knowledge and appreciation of the condition of the sidewalk in question; that is to say, that the condition of the sidewalk was open and obvious.

(2) The defect in question was trivial as a matter of law.

(3) The definition of “defective condition” as used in connection with Special Issue No. 1 was improper and imposed a greater burden of proof upon the Defendant-Appellant than required by law.

(4) The definition of “special use” as used in connection with Special Issue No. 3 is improper because it does not follow the City ordinance in question and imposes a greater burden on Appellant than required by law.

(5) Special Issues Numbers 4 and 7 were merely repetitious of Special Issue No. 1.

After having carefully considered all of Appellant’s points and contentions, we overrule same as being without merit and affirm the trial court’s judgment.

We revert to Appellant’s first point, to wit, to the effect that the defective condition of the sidewalk was open and obvious, and therefore that Plaintiff was charged in law with notice, knowledge, and appreciation of such defective condition. We do not agree.

On September 6, 1973, Mrs. Haynes tripped upon a crack in the sidewalk immediately outside the main entrance of the Sul Ross Recreation Center, which is owned and operated by the City of Waco, as she was leaving a Senior Citizens’ function. She was 61 years old at the time of this occurrence, and she and her husband had been active participants in the Senior Citizens’ program conducted by the City at said Center. There were about 250 members in this program, ranging in age from 50 to 92 years old. The program’s activities consisted of dances, bingo parties, birthday parties, luncheons, and arts and crafts activities. Through newspaper advertisements the City invited senior citizens to attend the meetings, at this Recreation Center.

Mr. and Mrs. Haynes had been going to this Recreation Center and had been members of this Senior Citizens Club for over a year before this accident. Her husband, Woodrow Haynes, had served as president of the organization, and Mrs. Haynes as vice president. There were two doors on the side of the building where she fell, and she usually went in the door other than the one which she used on the occurrence in question. Sometimes she would go in and out of the door where the accident occurred one or two times a week, but she testified that she had never noticed the crack in the sidewalk before, or at the time she fell. She testified, and it was undisputed, that she saw the crack in the sidewalk for the first time about a month or two after the fall. Her description of the crack was that it was not “real wide or real narrow” and there was an offset created by one side of the crack being lower than the other. She did not know how deep the crack was.

The door that Mrs. Haynes came out of at the time of the accident was a flush panel type, that is, no glass to see through. The doorknob was on her left as she went out of the building. She was carrying in her right arm a shoe box containing a chess set that she had made. Mrs. Pansy Partin went out the door just ahead of her. There are three steps down from the door threshold leading to the sidewalk which runs alongside this building. The sidewalk is about four feet wide, and the crack runs across the width of the sidewalk, located a little to the right of the center of the door as you stand in the street and face the door from the outside. Mrs. Haynes’ car was parked a short distance to her right as she came out the door. She was on her way back to her car, and as she stepped down the three steps to the sidewalk, the heel of the shoe of her right foot caught in the crack in the sidewalk. This caused her to lose her balance, throw the shoe box over her head, and fall on both knees, but mostly her right one, thereby bringing about the substantial personal injuries for which she sued. There were no handrails along the steps and no warnings of any kind.

Mr. Haynes testified that he had not noticed the crack before his wife fell.

Miss Johnnie Cabaniss, an employee of the City who served as Assistant Director of the Senior Citizens program at the time of Mrs. Haynes’ fall, testified there were about 250 members in said program, and most of them were much older than 50. This was the most active program at the Center. She said the employees at the Recreation Center recognized that senior citizens were not of good eyesight and could not walk as steadily as younger people. With reference to the crack in question, Miss Cabaniss testified that the difference between the two sides of the crack was of sufficient size for a person to catch his heel on, and there was some short grass growing in the crack. She knew of no attempts by the City to fix the crack during the year prior to the fall. She said to her knowledge that crack had been there about the same way for some period of time prior to Mrs. Haynes’ fall. Miss Cabaniss had been employed by the City at the Recreation Center about a year before Mrs. Haynes fell.

Mrs. Pansy Partin, a member of the Senior Citizens Club who was walking just ahead of Mrs. Haynes at the time of the accident, testified that Mrs. Haynes was wearing a “normal walking shoe” on the day she fell. Mrs. Partin knew the crack had been there for several months, and had previously seen someone else, a younger person, fall on this crack.

Mrs. Elva Ruth Dooley, who was recreation supervisor at the Sul Ross Center at the time of the accident, and also a City employee, testified that the City recognized that older people go in and out of the facility and need help because many of them have difficulty in getting around and some have poor eyesight. She acknowledged that an uneven area could cause trouble for an older person whereas some younger person might have no difficulty. Mrs. Dooley confirmed that one side of the crack was higher than the other, the crack went all the way through the sidewalk, and at the time of trial had still not been repaired.

Testimony showed that the City employed maintenance people who regularly took care of the outside of the Center, including maintaining the grass and shrubbery and sweeping the sidewalks. Mrs. Dooley testified that in her opinion there was no reason for the City’s maintenance men not to have known about the crack from the time it first existed, and that the City’s maintenance people should have reported same.

In the case at bar, the City was an abutting property owner in addition to its status as a municipality. Here the City is in the position of being an occupier, and Mrs. Haynes is in the status of an invitee. See Adam Dante Corp. v. Sharpe (Tex.1972) 483 S.W.2d 452, 454.

Appellant’s first point of error asserts that the crack in question was “open and obvious” to Mrs. Haynes, to the end that she is charged in law with knowledge, realization, and appreciation of the danger, and therefore the City owed no duty as a matter of law to warn her of such condition of the sidewalk. We overrule this contention.

As we understand the recent decision in Parker v. Highland Park, Inc. (Tex.1978) Vol. 21, “The Texas Supreme Court Journal” page 188, opinion dated February 8, 1978, our Supreme Court has expressly abolished the “no duty” or “open and obvious” concept as a separate defense in all actions based on negligence. In the case at bar, the jury found the City guilty of negligence proximately causing Mrs. Haynes’ injuries, and acquitted Mrs. Haynes of any negligence, and the legal or factual sufficiency of evidence to support these findings have not been challenged by Appellant.

Aside from the foregoing, we overrule Appellant’s first point of error for an additional reason: Here, Mrs. Haynes testified that she had no knowledge of the crack in the sidewalk before she fell, and this is undisputed.

Our Supreme Court has held that an occupier owes a duty to protect an invitee from a danger which is latent. Massman-Johnson v. Gundolf (Tex.1972) 484 S.W.2d 555, 556; Coleman v. Hudson Gas and Oil Corp. (Tex.1970) 455 S.W.2d 701.

In the case at bar, we are of the opinion that the crack in the sidewalk is a latent defect, and therefore we cannot say as a matter of law that such condition is open and obvious, and that Mrs. Haynes was charged with knowledge, realization, and appreciation of the danger. Appellant’s first point is overruled.

Appellant cites H. E. Butt Grocery Co. v. Israel (Waco CA 1976) 544 S.W.2d 769, no writ, a venue “slip and fall” case as being similar in facts to the instant case. In Israel, we held the premises defect in question to be open and obvious, but the facts in Israel were in our opinion far different from those in the case at bar.

Appellant’s second point asserts that the defect in question was trivial as a matter of law. We cannot agree with this argument, because the undisputed evidence shows that the crack was of such a nature that a person’s heel could be caught in it, so as to bring about a fall.

Appellant further contends that special issues numbers 4 and 7 are merely repetitious of special issue No. 1. We overrule this contention.

The Plaintiff pleaded three theories of liability against the City. Evidence was presented upon the three theories, and special issues were submitted concerning same. The first two theories were based upon violations of ordinances of the City and the third was based upon common law negligence. In answer to Special Issue No. 1, the jury found that the sidewalk in question was in a “defective condition,” which (in answer to No. 2) was a proximate cause of Plaintiff’s injuries. The Waco City Ordinance in question here was Section 32-52 which read:

“Liability for Defective Sidewalk, Curb or Gutter.

“The abutting property owner or person enjoying the use of any property abutting on a sidewalk or curb or gutter that has become defective and has resulted in causing damages or injury as a result of such defective condition, shall be primarily liable in damages for any loss or damage sustained as a result of such defective condition.”

In this connection, the City stipulated that it was an abutting property owner, and the evidence so showed.

Special Issues 3, 4, 5, and 6 were based upon an alleged violation of Waco City Ordinance, Section 32-53, which read:

“Duty to Keep Sidewalk and Curb in Safe Condition.

“It shall be the duty of any property owner or person making special use of any sidewalk or curb for purposes of ingress or egress for loading elevators, downspout drains or any other specific use of whatsoever kind or character to keep such sidewalk, parkway, curb and driveway abutting such property in a good and safe condition and free from any defects and hazards of whatsoever kind and character.”

Special Issues 7, 8, 9, 10, 11, and 12 were based upon the theory of common law negligence. Special Issues Nos. 1, 4, and 7 were not repetitious of each other, but were respectively parts of three separate and distinct theories of recovery. As shown above, the jury verdict found the City to be liable to Mrs. Haynes on all three theories.

Appellant has other points and contentions, which we have carefully considered. We overrule all of same as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: HALL, Justice.

text:
    JASPER INDEPENDENT SCHOOL DISTRICT, Appellant, v. DEALERS ELECTRICAL SUPPLY, Appellee.
    No. 5838.
    Court of Civil Appeals of Texas, Waco.
    Feb. 16, 1978.
    Rehearing Denied March 16, 1978.
    Charles E. Wallace, Wallace & Smith, Waco, Sid S. Stover, Jasper, for appellant.
    John L. Bates, Waco, for appellee.
   HALL, Justice.

This is a venue case involving subdivisions 5 and 29a of the venue statute.

Dealers Electrical Supply sold electrical equipment and supplies on an open account to G. L. & H., Inc., an electrical contractor. A part of the merchandise was delivered to the premises of Jasper Independent School District for installation by G. L. & H. on School District’s buildings under a contract between G. L. & H. and District, and stored in a room in one of District’s buildings. G. L. & H. abandoned its contract with District before completion, and defaulted on payment of its account with Dealers.

Dealers brought this suit in McLennan County on a sworn open account against G. L. & H. and District to recover $13,289.54, the balance owed on the account, and for sequestration and sale of the supplies stored on District’s premises. G. L. & H. is a resident of Angelina County, and District is a resident of Jasper County. G. L. & H. did not respond to the suit, but District filed a plea of privilege to be sued in the county of its residence. This is the only pleading by District in the record before us. Dealers controverted the plea of privilege, and asserted that the suit could be maintained in McLennan County (1) against G. L. & H. under the provisions of subdivision 5 venue statute (Article 1995, Vernon’s Ann.Civ.St.), and (2) against District under the provisions of subdivision 29a of the venue statute. After a hearing without a jury the plea of privilege was overruled. District appeals. We affirm.

Subdivision 5 of article 1995 provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.

Subdivision 29a provides that if a suit with two or more defendants may be maintained under the provisions of article 1995 in the county where filed against any one of the defendants, then it may also be maintained there “against any and all necessary parties thereto.” Our Supreme Court has ruled that a party is a necessary party within the meaning of this subdivision “if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties.” Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944).

District contends the record does not establish (1) that G. L. & H. agreed in writing to pay its account with Dealers in McLen-nan County as required by subdivision 5 of the venue statute, nor (2) that District is a necessary party to Dealers’s suit against G. L. & H. within the meaning of subdivision 29a.

Dealers attached nine invoices to its petition and incorporated the invoices by reference in support of its sworn account. These invoices represent merchandise sold to G. L. & H. and delivered by Dealers to District’s premises for use by G. L. & H. under G. L. & H.’s contract with District. Under “TERMS” printed on its face, each invoice contained the statement that it was, “Payable in Waco, McLennan County, Texas.” Six of the nine invoices were signed by Mike Martin under the words, “Received By.” Dealers expressly pleaded that “venue of this action is in Waco, McLennan County, Texas by virtue of written agreements forming a part of the contract with G. L. & H., Inc., . . . wherein [G. L. & H.] by signed acceptance of merchandise from Plaintiff agreed that the invoices representing the merchandise were payable in Waco, McLennan County, Texas, as per the attached copies of invoices . . . ” The invoices are a part of the evidence in the case. The proof also shows that payments made by G. L. & H. on its account with Dealers were always made at Dealer’s office in Waco, McLennan County, Texas.

The invoices containing written provisions for payment in McLennan County and signed by G. L. & H. were “contracts in writing to perform an obligation in a particular county” within the meaning of the venue statute. Berry v. Pierce Petroleum Corp., 120 Tex. 452, 39 S.W.2d 824, 825 (1931); Grimes v. Pure Milk & Ice Cream Company, 527 S.W.2d 508, 510 (Tex.Civ.App.—Waco 1975, writ dism.). They support venue in McLennan County on Dealers’s suit against G. L. & H. although all invoices upon which the suit is based were not signed by G. L. & H. Warner v. Gohlman, Lester & Co., 117 Tex. 145, 298 S.W. 890, 891 (1927); Kimbell, Inc. v. Baker, 523 S.W.2d 956, 958 (Tex.Civ.App.—Fort Worth 1975, no writ).

District argues in its brief that the record does not show any relationship between the person named “Mike Martin” who signed the invoices and the parties to the suit. We disagree. District’s business manager (who was also District’s representative at the plea of privilege hearing) testified directly that the Mike Martin who signed the invoices “is a G. L. & H. man, he is not employed by us.” As we have already shown, the execution of the invoices by G. L. & H., pleaded by Dealers, has not been denied. Rule 93, Vernon’s Tex.Rules Civ.Proc., requires such denial to be made under oath in order to place it in issue.

The record shows that District determined to substantially renovate its school buildings. Believing it would save money by not employing a general contractor for the work, District chose to deal directly with the electricians, carpenters, plumbers and others who would make the repairs. It contracted with G. L. & H. for the electrical work.

G. L. & H.’s total contract with District was for $44,990.00, which included labor, fixtures and supplies. G. L. & H. bought the fixtures and supplies for this job (and others) from Dealers on open account. Under supervision of its architect, District permitted G. L. & H. certain “draws” as it completed the electrical work. G. L. & H. began the work in the Fall of 1976. On January 6, 1977, the architect approved $10,000.00 electrical materials and fixtures stored on the project site; and, based upon this, District paid G. L. & H. the sum of $7,434.16 on January 10th after deducting retainage. This left a balance of $12,800.00 not paid to G. L. & H. under its contract with District. The fixtures and materials for which this payment was made by District had been delivered to the job site by Dealers in the middle of December, 1976, for which G. L. & H. was billed $11,835.00 by Dealers.

On January 14, 1977, Dealers effected written notice to District by certified mail that G. L. & H. was indebted to Dealers for $13,289.54 for fixtures and supplies delivered to G. L. & H. for the renovation of District’s buildings, and expressly stated in the notice that it was given “in compliance with the McGregor Act, Article 5160 as amended, of the Revised Civil Statutes of Texas.” This statute provided at that time in its pertinent parts that any person or firm entering into a contract in excess of $15,000.00 with any school district for the repair of any public building “shall be required before commencing such work” to execute to the school district a payment bond in the amount of the contract for the protection of materialmen; and that after proper notice an unpaid materialman could sue the principal and sureties on the bond for the amount of his claim. District did not require such bond from G. L. & H.; however, Dealers did not learn of this fact until after it had given notice to District.

Dealers filed this suit on March 29, 1977. Ancillary to the suit, Dealers applied for a writ of sequestration on the ground that District was about to convert the fixtures and supplies sold to G. L. & H. which were stored on the job site. The application was not contested, the writ issued, and it was executed by the Sheriff of Jasper County who impounded the fixtures and supplies, and made return on the writ. On District’s request at the hearing on the plea of privilege, a replevy bond was set in the amount of $12,174.00. The record does not show whether replevy was effected by District.

During the course of the plea of privilege hearing, District’s business manager testified as follows: “Q. Do you presently still have $12,800.00 on hand [under your contract with G. L. & H.]? A. Yes, sir. Q. Is not the reason you still have $12,800.00 on hand based upon the fact you are withholding this money based upon this notice [under article 5160]? A. Oh, yes, sir. Q. Okay, you’re withholding the money based on the notice of Dealers Electric of nonpayment? A. We informed the architectural firm at the time of the notice that we would not pay G. L. & H. any more payments until we had proof of payment. Q. All right, do you have other bills unpaid besides Dealers Electric? A. No. Q. Why is it that you are failing to pay Dealers Electric? A. We don’t owe Dealers Electric. Q. Will you please state why? A. We have no contractual obligation with Dealers Electric. We have paid G. L. & H. for $10,000.00 worth of stored materials on the job which are identified by the architect and myself as being the light fixtures [in question] When we assumed that G. L. & H. had abandoned the contract, we re-bid it and got a $27,000.00 bid, using our fixtures that’s in question.”

At the time of the execution of the writ of sequestration and at the time of the hearing on the plea of privilege, the electrical fixtures and equipment in question were still in the original boxes in which they were shipped by Dealers, and were still in custody of the Sheriff. Insofar as the record shows, they are still in the Sheriff’s custody. All of this merchandise was identified by Dealers, and pointed out to the officer executing the writ, as supplies sold to G. L. & H. by Dealers; and they were so identified on the trial. There is evidence that G. L. & H. was insolvent and had abandoned its contract with District before this merchandise was delivered to the job site, and that the merchandise was actually accepted there by District.

Provision is made in V.C.T.A., Bus. & C. §§ 2.401, 2.703 and 2.706 for resale of goods by the seller where the buyer wrongfully rejects or revokes acceptance of goods and they are identifiable to the contract of sale. In the case before us, Dealers seeks possession and resale of the electrical equipment in question which it sold to and intended to deliver to G. L. & H. on the job site on District’s premises. It caused the property to be sequestered. District claims the merchandise as owner under an alleged purchase from G. L. & H. Questions are raised in the record as to whether G. L. & H. had abandoned the job at the time of the delivery and did not receive the merchandise. Under these circumstances we hold that within the meaning of subdivision 29a of the venue statute, District is a necessary party to Dealers’s suit against G. L. & H. See Moody Day Co. v. Westview National Bank, Waco, 441 S.W.2d 294, 296 (Tex.Civ.App.—Waco 1969, writ dism.).

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Martha Pittman COLEMAN, Appellant, v. TEXAS STATE DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 1101.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 16, 1978.

      Clifton L. Holmes, Kilgore, John Buckley, Austin, for appellant.
    Donald R. Ross, County Atty., Henderson, John Richard Kuna, Athens, for appellee.
    Dean W. Turner, Henderson, attorney ad-litem.
   DUNAGAN, Chief Justice.

This is an appeal from a judgment terminating the parent-child relationship between the appellant, Martha Pittman Coleman and the natural father, Donald Ray Coleman, and the child made the subject of this suit below, Jermaine Coleman, and appointing the Supervisor of the Rusk County Child Welfare, Texas Department of Public Welfare, managing conservator of said child. Donald Ray Coleman did not appeal.

The appellee filed its petition to terminate the parent-child relationship on March 3, 1976. Appellee’s supervisor was appointed temporary managing conservator of the child on March 12, 1976. No appeal from this order was taken. On June 2, 1977, a final hearing on the merits of the case was held which resulted in the judgment on June 22, 1977, terminating the appellant’s parental rights. It is from this judgment that appellant has appealed.

Trial was before the court without the aid of a jury. No findings of fact or conclusions of law were requested and none were filed.

Prior to the final hearing of the matter below, appellant made her motion to dismiss the action, citing as grounds therefor the violation of her rights to due process and fundamental fairness under the Constitutions of the United States and of the State of Texas, in that she was not allotted sufficient time and facilities to prepare herself to be heard on the hearing of March 12, 1976, for the appointment of a temporary managing conservator, and she was without legal counsel and unable to obtain one; and, further, that the action of appellee in allowing the temporary orders to continue for almost fifteen months without seeking a final determination violated appellant’s rights to due process of law.

The court below overruled said motion and the matter proceeded to trial on the merits.

The appellant’s point of error No. 1 complains of the court’s action in overruling her motion to dismiss.

The court’s temporary order was mere ancillary relief which determined the child’s status pending the final outcome of the case. Final judgment has been entered as the result of a full and complete evidentiary hearing in which the appellant with counsel participated and of which she does not complain in this respect. Upon the entry of the final judgment, the force and effect of a temporary order ceased. Hopwood v. Phillips, 329 S.W.2d 459 (Tex.Civ.App.—Houston 1959, n.w.h.); City of Corpus Christi v. Cartwright, 281 S.W.2d 343 (Tex.Civ.App.—San Antonio 1955, n.w.h.); Snyder v. Stokes, 29 S.W.2d 764 (Tex.Civ.App.—San Antonio 1930, n.w.h.). The status of the child depends upon the final decree, by which no complaint is made by virtue of appellant’s point of error No. 1. Any error which may have been committed in issuing the temporary order is perforce of the final judgment immaterial, and renders that issue in the appellate court moot. In the Matter of R_ E_ W_, 545 S.W.2d 573, 575 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.); Grider v. Noonan, 438 S.W.2d 631, 639 (Tex.Civ.App.—Corpus Christi 1969, n.w.h.); Conway v. Irick, 429 S.W.2d 648 (Tex.Civ.App.—Fort Worth 1968, writ ref’d); Blair v. Paggi, 282 S.W. 627, 629-30 (Tex.Civ.App.—Beaumont 1926, writ dism’d); Texas Liquor Control Board v. Jones, 378 S.W.2d 898 (Tex.Civ.App.—Austin 1964, n.w.h.); Rhoton v. Texas Land & Mortgage Co., 80 S.W.2d 763, 770 (Tex.Civ.App.—Eastland 1935, n.w.h.); Hopwood v. Phillips, supra; City of Corpus Christi v. Cartwright, supra; Snyder v. Stokes, supra. The alleged error not being material to the outcome of the suit before us furnishes no proper basis for a reversal of the June 22, 1977 judgment, from which appellant appeals. Miller v. Esunas, 401 S.W.2d 150, 157 (Tex.Civ.App.—Tyler 1966, writ ref’d n.r.e.); Pride v. Pride, 318 S.W.2d 715, 720 (Tex.Civ.App.—Dallas 1958, n.w. h.); Rule 434, T.R.C.P.

The court in its final judgment of June 22, 1977, which terminated the parent-child relationship between Martha Coleman and husband, Donald Ray Coleman, and the child subject of this suit, found therein (1) that Martha Pittman Coleman and Donald Ray Coleman have “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child” and (2) “that termination of the parent-child relationship between” the parents “and the child is in the best interest of the child.”

The appellant in her second and final point of error makes the contention that the evidence is insufficient to support these findings by the trial court. This point of error requires us to consider the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The trial court is authorized by Section 11.11 of the Family Code to issue such orders as are needed for the safety and protection of the child. The only burden that must be met is that it be in the best interest of the child, Family Code, Chapter 14.07 (1974), and that it be proven by a preponderance of the evidence, Family Code, Chapter 11.15 (1974). Involuntary termination of parental rights, however, rests upon sec. 15.02 of the Texas Family Code which sets up strict statutory requirements that must be proved in addition to a court’s finding of the termination being in the child’s best interest. Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976). “A judgment terminating a parent-child relationship under Section 15.02 cannot be based solely upon the trial court’s determination of what would be in the best interest of the child.” In the Matter of R_ E_ W_, supra. In our opinion the evidence amply shows that to leave the child in the type of situation and environment in which the appellant lived would endanger his physical or emotional well-being.

Appellant admits a life which has been filled with confusion, immorality, instability and misery. She admits she had been a prostitute. She also admits she has twice been sentenced to Gainesville Youth Treatment Center for a period of one year. There was testimony of sexual abuse of the child. There is evidence of physical abuse to the child by appellant, Martha Coleman. A number of witnesses testified to the threats appellant made on the life of the child. At the time of this hearing she was living with a man not her husband. She has a child other than the one involved here, a son, born out of wedlock in September 1968.

We recognize that in an action such as in the instant case that a termination of the parent-child relationship “can never be justified without the most solid and substantial reasons;” that the courts of this state have always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents and that “The natural right which exists between parents and their children is one of constitutional dimensions.” Wiley v. Spratlan, supra. The law, however, must and does recognize that some parents are not worthy or fit to continue the parent-child relationship and the law must, in such cases, protect the child from knowingly being placed in or knowingly being allowed by the parent or parents to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or engage in conduct or knowingly place the child with persons who engage in conduct which endangers the physical or emotional well-being of the child.

The evidence in this case, in our opinion, does present solid and substantial reason to terminate the parent-child relationship between the parents and the child here involved.

We could state in more detail the gruesome and shocking testimony in this record supporting the trial court’s findings and judgment but it would unduly lengthen this opinion and would serve no useful purpose.

A review of the entire record brings us to the conclusion that the evidence is of sufficient strength to support the findings complained of and the judgment.

The judgment of the trial court is affirmed.