author: BISSETT, Justice.

text:
    AETNA INSURANCE COMPANY, Appellant, v. Anthony RICHARDELLE et ux., Appellees.
    No. 972.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Rehearing Denied Oct. 16, 1975.

      Steven W. Stark, Cox, Wilson, Black & Stark, Jeffrey D. Roerig, Brownsville, for appellant.
    Reynaldo G. Garza, Jr., Carinhas & Cunningham, Brownsville, for appellees.
   OPINION

BISSETT, Justice.

This is a suit by an insurance company against the parents of a minor to recover damages caused when the minor set a residence home on fire. Aetna Insurance Company filed suit against Anthony Richardelle and wife, Mrs. Anthony Richardelle, to recover $5,000.00 which it had previously paid to Mr. and Mrs. Gordon Schultz as a result of the Schultz home being damaged by a fire which was set by Gary Richardelle, the minor son of Mr. and Mrs. Richardelle. Trial was to a jury. It was found that Gary Richardelle set fire to the home in question and that he acted maliciously and wilfully in setting such fire. Plaintiff moved for judgment on the verdict, and defendants filed a motion for judgment non obstante veredicto. The trial judge denied plaintiffs motion, and granted defendants’ motion. A take nothing judgment in defendants’ favor was rendered on October 25, 1974, and plaintiff has duly perfected an appeal from that judgment.

Plaintiff, in its petition which was filed on January 2, 1974, alleged that it had insured the Schultz home (and its contents) against fire; that Gary Richardelle, a child of defendants, who was born on May 3, 1961, set fire to the Schultz home on July 31, 1972; that the home and its contents sustained damages because of the fire; that the minor child acted maliciously and wil-fully in setting the fire; and that plaintiff paid Mr. and Mrs. Schultz more than $5,000.00 for the damages sustained by them as a result of the fire. Plaintiff prayed for a recovery of $5,000.00, plus court costs and reasonable attorney’s fees.

The case reaches us upon an agreed statement of facts. Gary Richardelle (Gary) is a male child. He was born on May 3, 1961. Defendants are his parents. On July 31, 1972, Gary set fire to the home of Mr. and Mrs. Gordon Schultz, which caused more than $5,000.00 damage to their personal and real property. Gary acted wilfully and maliciously in setting the fire. Plaintiff, prior to the fire, had insured the home of Mr. and Mrs. Schultz and its contents against fire, and after the fire, paid them more than $5,000.00 for the damages suffered by them as a result of the fire. It was agreed that $500.00 constitutes a reasonable attorney’s fee for plaintiff.

On the date of the fire, Gary was eleven (11) years of age. At that time, Tex.Rev. Civ.Stat.Ann. Art. 5923-1 was in full force and effect. It, in part, provided:

“Section 1. Any property owner . shall be entitled to recover actual damages suffered from the parents of any minor under the age of eighteen (18) years and over the age of ten (10), when such minor maliciously and wilfully damages or destroys property, real, personal or mixed, belonging to such owner.

The statute was repealed by Acts 1973, 63rd Leg., Ch. 543, p. 1411, when Title 2 was added to the Texas Family Code.

Section 4 of Title 2 to the Texas Family Code, in part, provides:

“(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect

Included in Title 2 to the Texas Family Code is Section 33.01, which reads as follows:

“A parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by:
(1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or
(2) the wilful and malicious conduct of a child who is at least 12 years of age but under 18 years of age.”

Plaintiff contends that the jury findings entitles it to judgment against the defendants despite the provisions of Section 33.01 of the Texas Family Code. It argues that on July 31, 1972, when the fire which gave rise to its asserted cause of action occurred, Art. 5923-1, V.A.C.S., provided for absolute liability of the parents for the wilful and malicious torts of their children under the age of 18 and over the age of 10; that it had a vested right to recover damages up to $5,000.00 from defendants upon proving the parent-child relationship between them and Gary; and that Gary, then 11 years of age, committed a wilful and malicious tort which resulted in damages to plaintiff. While plaintiff does not challenge the constitutionality of Tex.Family Code Ann. § 33.01 (1973), by a formal point of error, it does claim that the judgment which was entered by the trial court, in effect, made that Section of the Texas Family Code operate retroactively against it, in violation of Tex. Const. Art. I, § 16, in that its vested right “to proceed against the parents of ten (10) and eleven (11) year old children” for wilful and malicious torts committed by them while Art. 5923-1, V.A.C.S., was in force, was destroyed.

On the other hand, defendants take the position that the Legislature has not destroyed any of plaintiff’s “vested rights”, and that the enactment of Title 2 to the Texas Family Code and the repeal of Art. 5923-1, Y.A.C.S., did not affect plaintiff’s right to sue either the minor child or defendants, or both the child and the defendants, for damages caused by the torts of the minor child, Gary. They say that this case is governed by the law which was in effect at the time suit was filed, not the law which was in effect at the time the tort was committed.

As a general rule, statutes operate prospectively, but they may act retrospectively when it is apparent that such was the intention of the Legislature, provided no impairment of vested rights results. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912); Jenckes v. Mercantile National Bank at Dallas, 407 S.W.2d 260 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.). “Mere retroac-tivity is not sufficient to invalidate a statute.” Texas Water Rights Commission v. Wright, 464 S.W.2d 642, 648 (Tex.Sup.1971).

A retroactive law is one which is intended to act on things that are past. A statute which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts new disabilities in respect to transactions or considerations already past, cannot be upheld. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898 (1955). Retroactive laws have usually been upheld if the change is merely a change in a remedy, and condemned if the change is a change that destroys a vested right. Texas Water Rights Commission v. Wright, supra.

Unless otherwise inhibited by either the State or Federal Constitutions, the Legislature may change existing laws, both statutory or common, at its pleasure, but in so doing, it may not deprive a person of a property right theretofore acquired under existing law. Those rights are designated as vested rights, and to be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from the demand of another. If, before a right becomes vested in a person, the law upon which it is based is repealed, that particular person no longer has a remedy to enforce his claim, and if final relief has not been granted to him on the enforcement of a demand before such repeal, then no relief can be granted on his demand after the effective date of the repeal. City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009 (1937); 12 Tex.Jur.2d, Constitutional Law, § 116.

No person has a vested right to a particular remedy accorded by law, either at common law or by statute. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916); Du Pre v. Du Pre, 271 S.W.2d 829 (Tex.Civ.App.—Dallas 1954, no writ history); 12 Tex.Jur.2d, Constitutional Law, § 118.

The Supreme Court of Texas, in Dickson v. Navarro County Levee Imp. Dist. No. 3 et al., 135 Tex. 95, 139 S.W.2d 257 (1940), said:

“It is almost universally recognized that if a statute giving a special remedy is repealed, without a saving clause in favor of pending suits, all suits must stop where the repeal finds them; and, if final relief has not been granted before the repeal goes into effect, it cannot be granted thereafter. A like general rule is that if a right to recover depends entirely upon a statute, its repeal deprives the court of jurisdiction over the subject matter. . . . ”

In National Carloading Corporation v. Phoenix-El Paso Express, Inc., 142 Tex. 141, 176 S.W.2d 564, 568 (1944), it was noted:

“It is generally conceded that a right of action given by a statute may be taken away at any time, even after it has accrued and proceedings have been commenced to enforce it. 16 C.J.S. Constitutional Law p. 675, § 254. ...”

The effect of a repeal of a statute is discussed in some detail in 53 Tex.Jur.2d, Statutes, §§ 113, 114, pp. 163-164, wherein it is stated:

“A valid express repeal (of a statute) abrogates, destroys, or supersedes the act or provision against which it is directed. Thereafter the statute repealed is considered as though it had never existed, except as to transactions past and closed.
4: ⅜ ⅜ ⅜ sfc ⅜
The repeal of a statute extinguishes any right that depends solely on the statute repealed, unless the repealing act directly or by fair implication reserves the right.”

At common law the mere fact of paternity did not make a parent liable for the torts of his or her minor child. 67 C.J.S. Parent and Child § 66. Prior to the passage of Art. 5923-1, V.A.C.S., which was enacted by Acts 1957, 55th Leg., Ch. 820, p. 783, effective 90 days after May 23, 1957, the parent’s liability for torts committed by his or her minor child was limited to situations where there was the relationship of master and servant between the parent and child, or where the parent had directed the child in the commission of a tortious act, or where the parent had negligently permitted the child to conduct himself or herself in a manner likely to cause injury to another. 37 Texas L.Rev. 924; 44 Tex.Jur.2d, Parent and Child, § 3. The statute imposed absolute liability upon the parents for actual damages to the extent of $300.00 for damages to property due to the wilful and malicious conduct by their child- between the ages of 10 and 18 years. It was amended by Acts 1965, 59th Leg., Ch. 217, p. 430, which raised the amount of recovery to not more than $5,000.00, and permitted a recovery for reasonable attorney’s fees. The statute, as so amended, was in force on July 31,1972 when Gary set the Schultz home on fire, but it had already been repealed on January 2,1974, when plaintiff brought suit against defendants. The statute is properly classified as “remedial”, since once it was established that a child became engaged in proscribed conduct, the parents became liable for the property owner’s actual damages (not to exceed the amount limited), even though there was no basis for such vicarious liability at common law.

In the instant case, it is undisputed that Gary was 11 years old when he wilfully and maliciously set the fire, but was 12 years of age when plaintiff brought suit against defendants. The petition filed by plaintiff did not plead parental negligence on the part of defendants. No evidence was introduced to prove that Gary’s conduct in connection with the damage to the Schultz property was reasonably attributable to the negligent failure of defendants to exercise their duty of control and reasonable discipline of their minor child.

The right to proceed against the parents of an eleven (11) year old child for his wilful and malicious acts, irrespective of parental neglect, was given to plaintiff solely by Art. 5923-1, V.A.C.S. That right was taken away by the Legislature after it had accrued but before proceedings were commenced to enforce that right. Even though the right had accrued, it was not a “vested right”, since plaintiff, under the record presented, had not acquired a “title . to the present or future enforcement of a demand”, and “the courts are generally agreed that rights of action based on purely statutory grounds may be abolished by the legislature even after they have accrued”. National Carloading Corp. v. Phoenix-El Paso Express, supra. “There cannot be a vested right, or a property right, in a mere rule of law”. Middleton v. Texas Power & Light Co., supra.

The repeal of Art. 5923-1, V.A.C.S., by the enactment of Title 2 to the Texas Family Code did not destroy plaintiff’s right to sue defendants for the damages caused by their minor child on July 31,1972. Section 33.01 of Title 2 to the Texas Family Code insofar as the same provides for absolute liability of parents for damages to property caused by the wilful and malicious conduct of their minor child merely changed the age limits from 10 to 18 years (under the repealed statute) to 12 to 18 years (under the new statute).

Seventeen (17) months elapsed between the date of the fire and the date suit was filed. No reason is shown why plaintiff could not have obtained final relief on its right to proceed against the defendants under the provisions of the repealed statute prior to its repeal. That interval of time afforded plaintiff a reasonable time within which to take legal action to protect its interests.

There was no savings clause in favor of accrued causes of action in the legislative act which repealed Art. 5923-1, V.A.C.S., and final relief had not been obtained before the repeal became effective. Relief which could have been granted solely under Art. 5923-1, V.A.C.S., while it was in full force and effect, cannot be granted after its repeal became effective. Plaintiff’s right of action under the repealed statute stopped where the repeal found it. Dickson and National, supra. Statutory authority did not exist at the time suit was filed, or at the time judgment was rendered, which imposed absolute liability on defendants, the parents of a child who was then 12 years old, for a wilful and malicious tort committed by the child when he was 11 years of age.

We have carefully considered all of the points of error which have been brought forward by plaintiff. They are all overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    PACIFIC PRODUCTS, INC., Appellant, v. GREAT WESTERN PLYWOOD, LTD., Appellee.
    No. 17634.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 5, 1975.
    Rehearing Denied Oct. 3, 1975.

      Bagby, McGahey, Ross & DeVore, Inc., and Terry B. Arnn, Arlington, for appellant.
    Brown, Herman, Scott, Dean & Miles, and J. Shelby Sharpe, Fort Worth, for ap-pellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a judgment against appellant Pacific Products, Inc., in the amount of $11,528.17 awarded after a trial before the court without jury. That sum of money represents the difference in the contract price for a railway carload of plywood ordered by Pacific and the price at which the seller, Great Western, was ultimately able to dispose of same, plus incidental expenses.

We affirm the judgment.

Appellee, Great Western, of Portland, Oregon, was a primary wholesaler of plywood products milled in the Pacific Northwest (now in receivership); appellant, Pacific Products, Inc., is a wholesaler of lumber located in Arlington, Texas. At some time during March or the first few days in April of 1973, long distance phone conversations were held between Roger Bunge, an agent of Great Western and one of Pacific’s salesmen, Craig Stephens, with regard to the purchase by Pacific of a railway carload of plywood for one of its local customers, Bush Lumber Company.

As a result, on the 4th or 5th of April, Pacific forwarded a purchase order and Great Western sent a written acknowledgment; these crossed in the mail. The order form from Pacific was of a standard format and provided that “All purchases are made in accordance with applicable association Grading Rules and practices, unless stated otherwise” ; the typewritten terms provided for an order of:

1 CA 3/8 AC-BC TEC» GS 5⅝ SHOP
AC 296.00
BC 293.00
SHOP 251.60

These provisions reflect an order of one carload of ⅜ inch plywood composed of AC, BC and “Shop” grades of quality, with the quantity of shop grade to be no more than 5% of the total; AC is the best grade of these three and shop the lowest; “TECO GS” means the plywood will bear the grade stamp of Timber Engineering Company, one of several quality control organizations within the industry; the figures 296.00, etc., reflect the cost per thousand feet of the indicated grade. It is admitted that neither this document nor the acknowledgment specifies any particular quantity of grades AC and BC, whether by unit or percentage. The purchase order also provided the railcar would be delivered to the switching yard of the St. Louis Southwestern Railway (SSW) in Addison, Texas, near Dallas; it was signed and returned by Stephens.

The acknowledgment from Great Western lacked the proviso regarding association standards and provided:

TECO Grade Stamped Plywood
PS 1-66 Group I
AC/BC Shop developing
1 CA (30-36U) 3/8 48 X 96
172 list

This document also provided the carload was to be shipped to Pacific at the SSW yard in Addison.

In addition to the applicable explanations mentioned above, it is uneontroverted that “30-36U” reflects 30 or 36 units, there being eighty 48" X 96" sheets to a unit, and railcars hold either 30 or 36 units depending on the size of the car.

The shipment was made on May 3rd and Pacific received an invoice on May 11th, a Friday, which reflected for the first time the respective quantities of each grade, the total price for each quantity, and the total price for the entire order of $22,109.39, less $1,353.96 freight ($20,755.43). Prior to the receipt of the invoice, Pacific had given the railroad a written authorization to release the car to its customer on arrival, and after arrival on Monday (May 14th) it was switched to the customer’s siding. In the meantime, the customer had been forwarded a copy of the invoice and it called Pacific on Monday claiming the shipment was not sufficient for its needs as the invoice showed far too much plywood of the BC grade. It is also unquestioned that the price of plywood had begun to fall rapidly prior to the arrival of the shipment.

The next day, May 15th, the car was opened and inspected by the customer in the presence of Pacific’s agent and an observer from Great Western. The parties opened only one of the 30 units in the car and after examination the customer first and then Pacific declared the car to be refused; the next day Pacific gave Great Western written notice of rejection.

Great Western then asked for a “rein-spection” by a disinterested quality control firm pursuant to Section A2 of the appendix to U. S. Product Standard PS 1-66, which provides in part:

A2. Shipment Reinspection Practices— Based on industry practices, the following information on reinspection of plywood shipments is offered purchasers of plywood:
All complaints regarding the quality of any shipment must be made within 15 days from receipt.
(a) If the grade of any plywood shipment is in dispute and a reinspection is demanded, the cost of such reinspection shall be borne by the seller if the shipment is more than 5% below grade, and the shipment shall be settled on the basis of the reinspection report.
The buyer need not accept those panels established as below grade, but shall accept the balance of the shipment as invoiced.
(b) If reinspection establishes the shipment to be 5% or less below grade, the buyer pays the cost of reinspection and pays for the shipment as invoiced.

The reinspection was done by a representative of Timber Engineering Company and in his report of June 7th he found the shipment to be in compliance with the “standard”, even though it contained approximately 85% BC grade, since it had five percent (5%) or less of plywood below the grades ordered. Pacific still refused to accept the shipment and Great Western sold it some six months later at a dramatic loss. Subsequently, Great Western brought this suit and Pacific has appealed from the judgment of the trial court in favor of the former.

We will first consider Pacific’s third point of error, by which it contends the trial court erred in striking the defense of fraud because same was filed in a timely manner and was properly before the court.

On the morning of trial, October 28,1974, a hearing was to be held on Great Western’s exceptions to the defendant’s second amended original answer including a pleading which maintained that the agent of Great Western had verbally represented to Pacific’s salesman that the shipment in question would “contain 5% shop, 5-10% BC grade, and the remaining portion of the carload would be AC grade,” and that Pacific had relied on such representation to its detriment. When the hearing began, however, Pacific announced it had just filed its third amended original answer, changing the before-mentioned pleading to one of fraud rather than “representation”. The trial court then sustained Great Western’s exception to this pleading on the basis of surprise and it is of this action which Pacific now complains.

Rule 63, T.R.C.P., provides: “Parties may amend their pleadings, ... by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.”

It is Pacific’s contention that the plaintiff was not surprised by the defense of fraud pleaded on the morning of trial. It makes the statement that it had pleaded the question of representation in each of its answers prior to the third amended answer and the pleading of fraud was no more than an amplification of a prior pleading which was tendered to meet exceptions and to which it was entitled as a matter of law.

Under Rule 63, the trial court has great latitude in deciding whether or not to allow an amendment of pleadings within seven days of trial and his ruling will not be disturbed on appeal unless the complaining party makes a clear showing that the court abused its discretion. Badgett v. Erspan, 476 S.W.2d 381 (Fort Worth, Tex.Civ.App., 1972, no writ hist.). The burden of demonstrating that the trial court erred in refusing to permit a late filing of an amended pleading or trial amendment rests on the party contending such action was not justified by the rules, and the mere fact that the court refused to permit amendment is not sufficient. Herrin Transportation Co. v. Parker, 425 S.W.2d 876 (Houston, Tex.Civ.App., 1st Dist., 1968, writ ref., n. r. e.).

In this case, we note almost one year elapsed from the filing of defendant’s initial answer to the day of trial and during that period Pacific amended its answer twice without mentioning fraud on the part of plaintiff as a defense; the record reflects that Great Western had gone to considerable expense in bringing witnesses from out of state in order to be prepared for the trial to begin as scheduled; Great Western complained vigorously of surprise and claimed the unanticipated defense of fraud would compromise its efforts on behalf of its client. On the basis of the record, we cannot say the trial court abused its discretion in refusing to allow Pacific to further amend its pleadings on the day of trial.

The third point of error is overruled.

Pacific’s first point of error claims the trial court erred in holding that the exchange of the purchase order from Pacific and the written acknowledgment from Great Western constituted a contract between the parties because such were not sufficiently certain to be enforced, as a matter of law. More specifically, it contends that one cannot determine from the purchase order and acknowledgment the number of units of each grade, price for the total quantity of each grade, total quantity of plywood, or the final total price, and therefore the purported contract must fail due to the lack of expressed agreement as to certain material terms. It argues error by the trial court as a matter of law in making the following determinations:

Findings of Fact:

“6. The written order acknowledgment form of Great Western Plywood Ltd. acknowledged the same price per grade of plywood of A-C, B-C and shop as ordered by Pacific Products, Inc.

“30. The carload of plywood shipped in UP 111185 to Addison, Texas, was what was ordered by Pacific Products, Inc.

“50. The written order form sent by Pacific Products, Inc. to Great Western Plywood, Ltd. was not ambiguous.

“51. The written order acknowledgment sent by Great Western Plywood, Ltd. to Pacific Products, Inc. was not ambiguous.”

Conclusions of Law:

“1. A written contract constituting the complete contract was entered into between Great Western Plywood, Ltd. and Pacific Products, Inc. when Pacific Products, Inc. received the written order acknowledgment of Great Western Plywood, Ltd., which was signed by Craig Stephens on behalf of Pacific Products, Inc. and which is heretofore referred to as Plaintiffs’ Exhibit ‘B\

“2. The carload of plywood in UP 111185 received in Addison, Dallas County, Texas, complied fully with the written contract between Pacific Products, Inc. and Great Western Plywood, Ltd.

“3. The written contract between Pacific Products, Inc. and Great Western Plywood, Ltd. was for one carload of whatever size car was available of ⅜ inch thick plywood with unspecified percentages of A-C and B-C plywood and shop grade plywood as it developed. Great Western Plywood, Ltd. was to hold the shop developing to 5% of the car if possible.”

As this case involves the sale of commercial goods between merchants, the applicable law is to be found in the Uniform Commercial Code as adopted in this state as part of our Business and Commerce Code. To the extent that prior law conflicts, it is supplanted by the Code. Fredonia Broadcasting Corp., Inc. v. RCA Corporation, 481 F.2d 781 (5th Cir., 1973). The objective of the Uniform Commercial Code, or any code, is to displace scattered legislation or deci-sional law, and to state as fully as practicable a comprehensive and workable set of rules and principles for the governing of all aspects of transactions in the field to which it applies. 3 Bender’s U.C.C.Ser. (1975), Sec. 1.01. Of course prior law is applicable in so far as it is not displaced by specific provisions of the Code. Tex.Bus. & Comm. Code Ann., Sec. 1.103 (Tex.UCC, 1967).

In considering this point, we note that there are other salient determinations made by the trial court which are unquestioned on appeal:

Findings of Fact (unchallenged):

“1. Craig Stephens as a part of his regular duties mailed on behalf of Pacific Products, Inc. to Great Western Plywood, Ltd. a written order for one carload of inch thick plywood. Said carload to contain an unspecified amount of A-C and B-C grades of plywood with a limitation on shop grade of plywood to the extent of 5% of the carload shipped.

“2. The price per grade of plywood of A-C, B-C and shop was set forth in the written order mailed by Craig Stephens on behalf of Pacific Products, Inc. to Great Western Plywood, Ltd.

“3. Craig Stephens was authorized by Pacific Products, Inc. to order the carload of plywood.

“4. Plaintiffs’ Exhibit ‘A’ is a true and correct copy of the original order of Pacific Products, Inc.

“5. Upon receipt of the Pacific Products, Inc. written order Great Western Plywood, Ltd. mailed to Pacific Products, Inc. a written order acknowledgment stating one carload of ⅜ inch thick plywood with unspecified amounts of A-C, B-C and shop grades was being shipped.

“7. Plaintiffs’ Exhibit ‘B’ is a true and correct copy of the written order acknowledgment mailed to Pacific Products, Inc.

“8. The written order acknowledgment form was received by Pacific Products, Inc. and Craig Stephens affixed his signature to the lower left portion on behalf of Pacific Products, Inc. as he was authorized to do.

“9. Craig Stephens on behalf of Pacific Products, Inc. returned a copy of the written order acknowledgment form of Great Western Plywood, Ltd.

“10. Several days prior to the arrival of the carload of plywood by rail in Addison, Dallas County, Texas, Pacific Products, Inc. received the invoice of Great Western Plywood, Ltd. stating that Union Pacific car number UP 111185 was en route to Addison, Texas, containing 240 pieces of ⅜ 48 x 96 A-C, 2000 pieces of ⅜ 48 x 96 B-C and 160 pieces of ⅜ 48 x 96 shop grades of plywood priced as per the written order of Pacific Products, Inc. for delivery to Pacific Products, Inc.”

Additional Findings of Fact (unchallenged):

“1. That there are two sizes of railroad cars that carry either 30 units or 36 units of plywood.

“2. There are 80 pieces of plywood per unit of plywood.”

Conclusions of Law (unchallenged):

“4. The language in the written order of Pacific Products, Inc. referring to the applicable association Grading Rules and practices incorporated the rules and practices as promulgated by the Department of Commerce and set forth in PSI-66 as a part of the written contract.”

First, we will consider the alleged dissimilarity between the purchase order and the acknowledgment. Pacific argues the acknowledgment from Great Western contains no price at all (per unit or otherwise) and that this supposed variance from the purchase order contributes to the uncertainty of the contract; it states that the term “172 list” refers to a price list published by a third party and, since several price lists are published for this industry, there is no way of determining what prices apply. We disagree.

Mr. Roger Bunge, the agent for Great Western involved in these negotiations, testified that “172 list” was a reference to a standard price list used in the industry from which one could determine the prices of the various different qualities of plywood by simple mathematics. He stated that when this was done in this case, the acknowledgment reflected exactly the same prices as did the purchase order. On cross-examination, he admitted that there were different publications which printed the price list, but he stated the list itself never changed (was quoted the same by each publisher of price lists). This testimony was uncontradicted.

Since the record reflects the trial court’s finding that the acknowledgment contained the same price per grade as the purchase order and there is some evidence to support such finding, we are bound by the finding even if we might have reached a different conclusion. Sanders v. Sanders, 469 S.W.2d 313 (Houston, Tex.Civ.App., 14th Dist., 1971, error dism.); 4 McDonald Texas Civil Practice, Sec. 16.10(b) (1971 Revision).

Pacific’s primary argument under this point concerns the “uncertainty” of the contract due to the alleged lack of specificity of its terms, as previously mentioned herein. We conclude the agreement is not so uncertain that it is unenforceable; further, even if extrinsic evidence were admitted, there is evidence that Pacific’s order was enforceable under industry usage.

The Texas Business and Commerce Code provides, in part:

“§ 1.102. Purposes; Rules of Construction; Variation by Agreement

“(a) This title shall be liberally construed and applied to promote its underlying purposes and policies.

“(b) Underlying purposes and policies of this title are

“(1) to simplify, clarify and modernize the law governing commercial transactions;

“(2) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;

“(3) to make uniform the law among the various jurisdictions.

“(c) The effect of provisions of this title may be varied by agreement, except as otherwise provided in this title and except that the obligations of good faith, diligence, reasonableness and care prescribed by this title may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”

The official comment to this Section states: “The Act should be construed in accordance with its underlying purposes and policies. The text of each section should be read in light of the purpose and policy of the rule or principle in question, as also of the Act as a whole, and the application of the language should be construed narrowly or broadly, as the case may be, in conformity with the purposes and policies involved.”

Section 1.205. “Course of Dealing and Usage of Trade”

“(d) The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.”

Section 2.201. “Formal Requirements; Statute of Frauds”

“(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”

The official comment to this Section states: “The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. . . The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted.”

Section 2.202. “Final Written Expression: Parol or Extrinsic Evidence”

“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

“(1) by course of dealing or usage of trade (Section 1.205) or by course of performance (Section 2.208); and

“(2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”

Section 2.204. “Formation in General”

“(a) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

“(b) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.

“(c) Even though one or more terms are left open a contract for sales does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.”

Section 2.305. “Open Price Term”

“(a) The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if

“(1) nothing is said as to price; or

“(2) the price is left to be agreed by the parties and they fail to agree; or

“(3) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.”

In this case, Mr. Robert Germany, who did the reinspection for Timber Engineering Company, testified to the effect that the reinspection showed Pacific received what it ordered as reflected by the purchase order and acknowledgment; that there is no limitation by “usage” within the industry as to the maximum or minimum quantities of certain grades in a shipment; merchants within the industry do at times order by the carload without specifying quantities by grade. Mr. Harlan Niebling, the manager of the western office of the North American Wholesale Lumber Association (a trade association of wholesale distributors of forest products), testified to the effect that: the carload shipment complied with the purchase order from Pacific; there was nothing in the applicable commercial standards (referred to in the purchase order) which specifies particular percentages of any grade in a shipment mixed with another grade unless specified in the contract between buyer and seller. All this was in addition to the testimony of Mr. Bunge which was to similar effect.

In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.Sup.1963). When the evidence is examined in light of the applicable UCC provisions, we can only conclude there is some evidence from which the trial court could have determined that there was a reasonable good faith meeting of the minds as to the contract and that the shipment in question met the requirements of the contract. There is also some evidence of custom and usage to the effect that it was not unheard of, although perhaps unusual, to order plywood by the carload without specifying the quantities of each grade. We are therefore bound by the trial court’s finding that the carload of plywood fully complied with the written contract. Sanders v. Sanders, supra.

The first point of error is overruled.

In its second point of error, Pacific argues that the trial court erred in holding it had waived its right to inspect and reject the shipment because, as a matter of law, the car was inspected and rejected in a timely manner. It says such error is shown in certain determinations made by the trial court as to questions of fact and law, but our examination of the record shows the only one of these determinations which in any way relates to the waiver by Pacific of any right of rejection and/or inspection is the following conclusion of law:

“6. Pacific Products, Inc. waived its right of inspection of the shipment when it exercised dominion over the shipment by having the St. Louis Southwestern Railway Company deliver it to its customer, S. P. Bush Lumber Company.”

We do not find the specific term “exercise of dominion” in the Uniform Commercial Code as adopted in this state, however, Great Western states in its brief that it relies on that part of Section 2.606 which provides: “(a) Acceptance of goods occurs when the buyer . (2) fails to make an effective rejection (Subsection (a) of Section 2.602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (3) does any act inconsistent with the seller’s ownership . .

Paragraph (a) of Section 2.602 provides:

“(a) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.”

Great Western contends that any right of inspection or rejection was waived because Pacific’s action in directing the railroad to release the car to its customer was inconsistent with the seller’s ownership and therefore the shipment was accepted when delivered to the Bush siding.

We find that Pacific rejected the shipment in a manner approved by the Code and did not waive its right of rejection.

The official comment to Section 2.606(a)(3) notes the provisions of that subsection are subject to the sections dealing with rejection. Those sections permit the buyer “to take certain actions with respect to the goods pursuant to his options and duties imposed by those sections, without effecting an acceptance of the goods.” (Emphasis ours.) One of the buyer’s options is to “reject the whole” if the goods are nonconforming. Another, as previously noted, provides the buyer must do so within a reasonable time and with “seasonable” notice to the seller. Section 2.602(a).

The findings of fact reflect that Pacific received the invoice which specified the quantities of each grade in the shipment on Friday, May 11th; Pacific had given a written directive to the SSW Railway Company on May 8th telling it to deliver the car to Bush Lumber Company on its arrival and did not cancel same or request an inspection prior to the delivery; the car arrived at the railroad’s Addison yard on Monday morning, May 14th, and was switched to the Bush siding by 9:00 P.M. the same day; the next day, May 15th, Pacific orally notified Great Western that the shipment was rejected; and on May 16th written notification of rejection by telegram was given.

There was testimony from the SSW Railroad freight agent who had handled the car that it arrived consigned to Great Western; on being contacted, Great Western told the agent to take instructions from Pacific as to disposition of the car; the agent then switched the car to the Bush siding per Pacific’s written instructions; that since the car had arrived consigned to the shipper, he would not have allowed even Pacific to inspect it prior to its release by Great Western; release instructions are usually in hand prior to the arrival of the car; and the railroad did not contact Pacific on the 14th regarding the disposition of the car since it already had the written release.

The record reflects other testimony to the effect that the invoice received by Pacific on the 11th was processed and forwarded to Bush Lumber Company on the same day, but Pacific’s salesman did not see a copy of the invoice until he was contacted by Bush on Monday, the 14th, as to the excessive amount of BC reflected therein; in order to complete the sale Pacific then tried to convince Bush that the BC grade would be satisfactory for its needs; Pacific did not know the car had actually arrived until so informed by Bush; the inspection by Pacific and Bush on the 15th was, in part, an attempt to salvage the sale.

The determination of whether the actions of the buyer under Sections 2.602 and 2.606 amount to acceptance or an effective rejection in a particular ease is generally made by the trier of fact. Chrysler Corp. v. Adamatic, Inc., 59 Wis.2d 219, 208 N.W.2d 97 (1973); HPS, Inc. v. All Wood Turning Corp., 21 N.C.App. 321, 204 S.E.2d 188 (1974). The overlapping considerations are: 1. Did the buyer give notice within a reasonable time? 2. Did the buyer treat the goods in a manner so inconsistent with seller’s ownership that its attempt at rejection must fail even though given within a reasonable time? The latter instance may be reflected by payment of the purchase price, use of the goods, changing the identity of the goods, or a combination of the foregoing. 67 Am.Jur.2d, “Sales”, Sections 382-385 (1973). See also Bowen v. Young, 507 S.W.2d 600 (El Paso, Tex.Civ.App., 1974, no writ hist.).

In this case, Great Western admits Pacific did not wait an inordinately long period of time prior to inspection and the giving of notice of rejection. Therefore, the point turns on whether or not Pacific’s written directive to the railroad to release the car to Bush was an action inconsistent with seller’s ownership; i. e., did Pacific “waive” its right of rejection. We are of the opinion it did not.

Other than general references to the before mentioned sections of the Code, Great Western relies on one pre-Code case for the foregoing proposition. Pittman-Harrison Co. v. Fox Bros., 228 S.W. 579 (Texarkana, Tex.Civ.App., 1921, no writ hist.).

In that pre-Code case, the buyer ordered a car of certain quantities of various grades of peas and the bill of lading specified that inspection was to be allowed. When the shipment arrived, it had no bill of lading and the peas were unloaded into the buyer’s own warehouse for purposes of inspection. Finding the shipment to vary from its order, the buyer tendered payment for the conforming portion of peas and rejected the rest. The seller refused to accept the rejected peas and the shipper ultimately disposed of them. The seller then sued the buyer on the theory that the unloading and storage of the peas for 13 days amounted to a conversion of the latter’s property.

In rejecting this theory, the appellate court held the buyer had merely been exercising its right of inspection according to the terms of the contract and the shipment was still under the control of the seller even though unloaded, inspected, rejected, and stored for a period of time by the buyer. The decision in that case does not support the position of Great Western.

Although we have noted that we must acquiesce in the findings of the trial court where there is evidence in support thereof, Sanders, supra, it is also true that we are not bound when we can determine from a record which includes a statement of facts that the evidence in support of the questioned finding is legally or factually insufficient. 4 McDonald, Texas Civil Practice (1971 Rev.), Sec. 16.10, Sub. (b).

As we have noted, the Code is intended to provide a comprehensive and workable set of rules governing commercial transactions and supplants prior law to the extent of any conflict. The Code emphasizes the concepts of good faith and commercial reasonableness. It has been said that the single most important innovation of Article 2 is its restatement of the responsibilities of the parties in terms of operative facts rather than legal conclusions: where pre-Code law looked to “title” for the definition of rights and remedies the Code looks to demonstrable realities such as custody, control, and professional expertise. 73 Yale L.Jour. 201 (1963), article by Ellen A. Peters, entitled “Remedies For Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code: A Roadmap for Article Two”.

In addition to the sections cited by appel-lee, the following also applies in this case:

Section 2.513. “Buyer’s Right to Inspection of Goods”

“(a) Unless otherwise agreed where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.”

The official comment in this section states: “The buyer may exercise his right of inspection at any reasonable time or place and in any reasonable manner. It is not necessary that he select the most appropriate time, place or manner to inspect or that his selection be the customary one in the trade or locality. Any reasonable time, place or manner is available to him and the reasonableness will be determined by trade usages, past practices between the parties and the other circumstances of the case.

“The last sentence of subsection (1) makes it clear that the place of arrival of shipped goods is a reasonable place for their inspection.”

Given these provisions, we see no way in which Pacific’s action in giving a release to the railroad could act as a “waiver” of its rights absent some other controlling Code provision or rule of law. Pacific inspected and rejected the car within 2 working days of its receipt of the invoice and gave written notice of rejection within two days of the car’s arrival. Under the facts of this ease, such action was a timely rejection and, in the absence of any evidence of a specific agreement to accept the car or the transfer of a legally binding document of title, the second point of error must be sustained. However, this point does not affect the disposition of this appeal since the shipment, as previously noted, did conform to a contract which was enforceable under the applicable provisions of the Texas Business and Commerce Code and the seller was therefore entitled to the redress afforded to him by the court below.

The judgment is affirmed.

       This refers to the American Plywood Association which in conjunction with the National Bureau of Standards develops standards for plywood which are subsequently promulgated by the Dept, of Commerce. U. S. Product Std. PS-1-66 is the standard for plywood of the type involved in this case.


text:
    MOBIL OIL COMPANY et al., Appellants, v. Albert A. DODD, Sr., Appellee.
    No. 1002.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 18, 1975.
    Rehearing Denied Oct. 16, 1975.

      Maurice E. Amidel, Dallas, for appellants.
    Michael W. Perrin, Fisher, Roch, McLen-don & Gallagher, Houston, for appellee.
   OPINION

BISSETT, Justice.

This is a controlled traffic signal light intersection collision case. The action arose out of a right angle collision between a 1969 Plymouth automobile (car), owned and operated by Albert A. Dodd, Sr., and a 1968 Ford pickup truck (pickup) owned by Mobil Oil Corporation (Mobil) and operated by Rufus Haddon Hamilton, Mobil’s employee.

Suit was instituted by Mr. Dodd on December 11, 1970 to recover damages for personal injuries allegedly sustained by him in the collision. Rufus Haddon Hamilton (who did not testify by deposition, or otherwise) died on March 12, 1971, from causes unrelated to the accident made the basis of this suit. Following a jury trial that began on January 25, 1975, judgment was rendered for plaintiff in the amount of $45,-000.00, which included $2,000.00 for past medical expenses, $8,000.00 for future medical bills and $40,000.00 for personal injuries. The defendants, Mobil Oil Corporation and the administrator of the Estate of Rufus Haddon Hamilton, deceased, have appealed from that judgment. The parties to this appeal will be referred to as plaintiff and defendants, as they were in the trial court.

The jury found that on the occasion in question Mr. Hamilton entered the intersection when the traffic signal light facing him was red; that he was driving at a greater rate of speed than a person of ordinary care would have driven; that he failed to keep a proper lookout; that he failed to make a proper application of the brakes; and that each such act or failure was a proximate cause of the accident. The jury also found that plaintiff did not enter the intersection when the traffic signal facing him was red; that at the time the signal light facing plaintiff turned green, the pickup driven by Mr. Hamilton had not already entered the intersection; that plaintiff was not driving at a greater rate of speed than a person using ordinary care would have driven; and that plaintiff did not fail to make such application of the brakes as a person using ordinary care would have made. The jury, however, did find that plaintiff failed to keep a proper lookout, but further found that such failure was not a proximate cause of the accident.

Defendants urge four points of error. In their first three points complaint is made of the trial court’s refusal to submit their requested Special Issues Nos. 20, 21 and 22. The requested issues would have inquired into whether the plaintiff failed “to turn to the right before the occurrence in question” (No. 20); and, if so, whether “such failure was negligence” (No. 21); and, in the event that such failure was negligence, whether “such action was a proximate cause of the occurrence in question” (No. 22). They complain, in their fourth point, of the introduction into evidence of certain portions of a deposition. We first consider the first three points.

It is not necessary for the trial court to submit an issue on an undisputed fact. Rule 272, T.R.C.P.; Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.Sup.1971). In this case, the trial court was not required to submit Special Issue No. 20 to the jury. It is undisputed that plaintiff did not turn to the right, and it is conclusively shown by the evidence that there was no obstruction in the streets that prevented such a turn. Defendants’ first point is overruled.

Defendants, among other special defenses, plead that plaintiff’s failure ‘,‘to make such turning movements as would have been made by a person of ordinary care and prudence in the exercise of ordinary care to avoid colliding with the vehicle driven by Rufus Haddon Hamilton” constituted negligence which proximately caused the accident. Therefore, requested Special Issues Nos. 21 and 22 should have been submitted if they were raised by the evidence. Bell v. Campbell, 434 S.W.2d 117 (Tex.Sup.1968).

The collision occurred in Bay City, Texas, on March 18, 1970, at about 8:30 a. m., at the intersection of Avenue C and Seventh Avenue. The streets, in the vicinity of the intersection, are straight and level. The pavement, at the time of the collision, was dry, and the weather was clear. Avenue C runs north and south and has two lanes of traffic; the west lane carries southbound traffic and the east lane carries northbound traffic. Seventh Avenue runs east and west and has four lanes of traffic; the north two lanes carry westbound traffic and the south two lanes carry eastbound traffic.

The intersection is controlled by a traffic signal light. Immediately preceding the accident, plaintiff was driving north in the east lane of Avenue C, and the pickup was proceeding east in the interior lane of Seventh Avenue. The collision occurred in the intersection. The right front of the pickup struck the left front side of plaintiff’s car.

George F. Campbell, a passenger in the pickup who was called as a witness by the defendants, testified that Mr. Hamilton, immediately preceding the collision, was driving the pickup along Seventh Avenue at a speed of approximately 25 miles per hour. Mr. Campbell first saw plaintiff’s car as it entered the intersection. He said that Mr. Hamilton applied his brakes after the pickup entered the intersection, and that the pickup laid down 15 feet of straight, heavy skid marks prior to impact. He placed the point of impact in the interior lane of Seventh Avenue for eastbound traffic and in the north lane of Avenue C, “beyond (to the east of) the center of the cross street (Avenue C)”,.and next to the centerline of Seventh Avenue “over half the width of a car from the centerline (of Seventh Avenue)”. He further testified that Mr. Hamilton did not “blow his horn”, because “he did not have time” to do so.

Plaintiff testified that the traffic signal light was red as he approached the intersection; that he stopped in obedience to the red light; that he looked to the right and to the left; and that he saw the pickup at that time, when it was about a block away. He stated that when the signal light facing him turned green he proceeded forward, and as he started to enter the intersection the pickup was about half a block distant. His reply to the question why he did not wait until the pickup had cleared the intersection, was:

“I had the right-of-way. The light was green. I expected him to stop.”

When asked whether he could have turned to the right and avoided the collision, he answered:

“I don’t think so”.

Plaintiff further testified that he proceeded from his stopped position into the intersection at a “normal” rate of speed; that while he was so proceeding he saw the pickup “just before it hit me”, and he pushed the accelerator “all the way down”; that the car “probably” picked up speed, and was moving when it was hit by the pickup. Plaintiff also stated that he first realized that there was going to be a collision when he was about “halfway in the intersection”, and that there was practically no time available for him to do anything in an attempt to avoid the accident. Plaintiff’s answers to questions concerning the length of time available for him to take evasive action after it became apparent to him that the pickup would strike his car were: “none”; “a very short space”; “when I seen he wasn’t going to stop, the collision had happened”; and an “instantaneous snap of the finger period of time”. Those answers were not disputed by any testimony from anyone. Concerning distance, plaintiff estimated that the pickup was “a couple of car lengths” away when he realized that a collision was imminent.

The speed in miles per hour of plaintiff’s car as it moved forward into the intersection was not established. There is no evidence as to the length of a city block in Bay City, Texas, the length or width of either vehicle involved, the width of the intersection, or the width of either of the two streets or of the traffic lanes contained therein.

Defendants contend that the failure of plaintiff to turn to the right raised the issues of contributory negligence and proximate cause because it is undisputed that: 1) the intersection was without obstruction; 2) the damage sustained by each vehicle was slight; 3) plaintiff tried to speed up; 4) there were no other vehicles in the lanes of traffic in either street at or near the intersection at the time of the collision; 5) there were no parked vehicles on Seventh Avenue in the area of the intersection when the accident occurred; and 6) there was nothing which prevented plaintiff’s turning to the right. Defendants argue that such undisputed facts furnish a basis from which the jury could reasonably have inferred, had the requested issues been submitted, that the accident could have been avoided by plaintiff had he made a “slight turn to the right”. We do not agree with either the contentions or the argument.

The burden is on a defendant, if he will escape liability for his own negligent acts or omissions, to both plead the defense of contributory negligence and to prove the elements thereof. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942). Contributory negligence is not established by evidence which is equally consistent with the exercise of care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof. Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.).

A person is not required to anticipate negligent or unlawful conduct on the part of another. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955); Bodine v. Welder’s Equipment Company, 520 S.W.2d 407 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Pittman v. Licerio, 496 S.W.2d 676 (Tex.Civ.App.—Corpus Christi 1973, no writ). A motorist who enters a controlled traffic signal light intersection on a green light has a right to assume that another motorist who, at the same time, is approaching the intersection from an intersecting street on a red light will stop and will not enter the intersection in disobedience to the red signal. Perkins v. Hale, 396 S.W.2d 149 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.); Cox v. City of Amarillo, 391 S.W.2d 494 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). Such motorist is entitled to indulge in that assumption until he sees or should see that the other vehicle on the intersecting street has not obeyed or is not going to obey the stop signal. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939, opinion adopted).

With respect to a collision in an intersection that is controlled by a traffic signal light, the driver with the right of way is under a duty to take evasive action, or his failure to take evasive action is negligence, only after the other driver without the right of way has done something which would alert a reasonably prudent person to the danger of a collision if evasive action is not taken. Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Thornton v. Campise, 459 S.W.2d 455 (Tex.Civ.App.—Houston (14th Dist.) 1970, writ ref’d n. r. e.). Here, plaintiff had the right of way; Mr. Hamilton did not. It is conclusively shown by the evidence that plaintiff exercised due care in entering the intersection. He was well into the intersection when he realized that there was going to be a collision. The prudence of plaintiff’s action in proceeding across the intersection under the existing circumstances is further evidenced by the fact that the pickup struck plaintiff’s car at a point when both vehicles were nearly out of the intersection. There is no evidence that Mr. Hamilton did anything prior to the time that he entered the intersection that should have alerted plaintiff to the fact that he was going to run the red light. The fact that plaintiff did not turn to the right is not, of itself, direct evidence of negligence. The issue of plaintiff’s contributory negligence in failing to turn to the right was not raised by the evidence. Under that state of the record, defendants were not entitled to the submission of their requested Special Issue No. 21.

Proximate cause includes the two essential elements of 1) foreseeability and 2) cause in fact, both of which must be shown to exist. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961). The foreseeability element is raised by evidence that the actor as a person of ordinary intelligence and prudence should have anticipated the danger caused by his negligent acts or omissions. Clark v. Waggoner, 452 S.W.2d 437 (Tex.Sup.1970). The cause in fact element is raised by evidence of a cause which produced an event without which the event would not have occurred. Texas & Pacific Railway Company v. McCleery, 418 S.W.2d 494 (Tex.Sup.1967).

Under the facts and circumstances presented, it was not foreseeable that Mr. Hamilton would run the red light. Plaintiff was not required to anticipate any illegal act by Mr. Hamilton. The element of foreseeability by plaintiff was not raised by the evidence, either direct or circumstantial.

Even if there was evidence that plaintiff was negligent in failing to turn his car to the right in an attempt to avoid the accident, or that the collision should have been foreseeable by him, or both, in order to establish cause in fact, once defendants showed that it was obvious that Mr. Hamilton was going to run the red light, defendants were also required to present evidence that plaintiff still had sufficient time to turn to the right and thereby prevent the accident.

While the exact position and speed of plaintiff’s car immediately prior to impact were not clearly established by the evidence, the only reasonable inferences that can be inferred from all the facts in evidence, without ignoring the teachings of common sense and practical experience, are that plaintiff was moving at a moderate rate of speed across the intersection, had almost reached the interior lane of Seventh Avenue for eastbound traffic when he was put on notice that Mr. Hamilton had run the red light, and did not realize that there was going to be a collision until a split second before impact. Simply stated, there was no evidence that plaintiff should have seen the pickup when it entered the intersection on a red light (or when it became apparent that it was going to do so) when plaintiff was at a sufficient distance from the point of impact that he could have, under the conditions present, turned to the right and thus would have avoided the collision.

During all of the time immediately preceding the collision, the pickup, traveling at 25 miles per hour, was moving at the rate of 36.7 feet per second. It is recognized as a matter of law that the time for a normal driver to react to danger under normal conditions is three-fourths (Viths) of a second. Murphy v. Whitehurst, 300 S.W.2d 758 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.); Stockton v. Longmore, 498 S.W.2d 440 (Tex.Civ.App.—Corpus Christi 1973, no writ). It has also been held that the brief span of two (2) seconds does not give sufficient time for an actor to take evasive action. Firestone Tire & Rubber Co. v. Rhodes, 256 S.W.2d 448 (Tex.Civ.App.—Austin 1953, writ ref’d n. r. e.); Green v. Pool, 421 S.W.2d 439 (Tex.Civ.App.—Tyler 1967, no writ). Since the pickup skidded 15 feet, it can be inferred that Mr. Hamilton was approximately 42 feet away from the point of impact when he realized that there was going to be a collision. It can only be concluded that the front of plaintiff’s car had already reached a point in the intersection when the pickup entered the intersection that it was then impossible for plaintiff to have turned right into the outside traffic lane for eastbound traffic on Seventh Avenue. Therefore, the only lane available for a right turn was the interior lane for eastbound traffic in Seventh Avenue; plaintiff, in order to turn to the right into that lane, would have been required to make an instantaneous turn of ninety degrees. There is no evidence that the car, mechanically, could have made such a turn in the short period of time remaining before impact. Defendants’ requested Special Issues Nos. 21 and 22 were not raised by the evidence. Defendants’ second and third points are overruled.

We now consider defendants’ fourth point. They say that the medical opinion of Dr. J. E. Cowart, who treated plaintiff for the bodily injuries sustained by him in the accident, should have been excluded because his opinion was not based upon any facts in the record as to how the accident happened, the position of the vehicles, the parts of plaintiff’s body that were injured, or the position of plaintiff in his car at the time he was injured.

Dr. Cowart did not testify in person, but portions of his deposition were offered in evidence by plaintiff. He attended plaintiff at the hospital immediately after the occurrence of the collision. In response to whether or not he had examined or treated plaintiff since March 18, 1970, the doctor responded:

“I saw him March 18,1970, and he stated in the history that I had taken from him, that I took from him that date, that he had been injured in an automobile accident that morning in the course of his employment, that he had injured his neck and his head and had suffered a mild concussion and suffered multiple contusions and sprains about the body.”

Counsel for defendants did not object to either the question or the answer when counsel for plaintiff first read them into the record. The doctor was then asked by counsel for plaintiff:

“Doctor, you have stated the history that he gave you, being involved in an automobile accident on that date, what generally is encompassed by the medical word history?”

He answered:

“Well, we always take a history on a patient as to the nature of the symptoms that they have that pertain to the illness or in the case of injury, the immediate factors that pertain to that specific injury.”

No objection was made initially to that question or to the answer thereto. The doctor then testified, without objection, concerning the results of his examination of plaintiff on March 18, 1970. He found evidence of an acute cervical sprain, contusions, bruises, scratches about the body, “probable” torn cartilage in the left knee, and an aggravation of a pre-existing condition.

Dr. Cowart then testified, also without objection, about the medications, therapy, and exercise procedures prescribed by him in the treatment of plaintiff’s injuries; that plaintiff was later hospitalized in April, 1970, in March, 1971, and on two occasions in April, 1971; and that plaintiff had “been a patient of mine since 1963”, but that he had not complained of an injury to his neck or knee prior to March 18, 1970.

Subsequently, plaintiff read into the record the following question from the deposition:

“Doctor, based upon your examination of Mr. Dodd, the history that you obtained from him, your prior treatment of him before March 18 of 1970, your education, experience and training, do you have an opinion, based upon reasonable medical probability, as to whether or not the neck injury and the knee injury that you have described above, were caused by an automobile accident of March 18, 1970?”

Defendant objected on the grounds:

“. . .no proper predicate has been laid for this doctor to give a medical opinion to state whether or not what he diagnosed was the result of the automobile accident, because it is not shown anywhere in this deposition that any facts whatsoever relative to this automobile accident were given to this doctor upon which to base his opinion, . . . ”

The objection was overruled. The doctor’s answer of “yes” was admitted by the trial court. Plaintiff then introduced portions of the deposition, over defendants’ objections, relating to the medical history of plaintiff prior to March 18,1970, treatment and medications administered following the accident, past medical bills, probable future medical expenses, and the doctor’s opinion as to the extent of plaintiff’s injuries and the probabilities facing plaintiff.

It is undisputed that plaintiff was taken to the hospital immediately after the accident, where he was attended by Dr. Cowart. Plaintiff testified that he sustained injuries to his neck, back, knee and leg as a result of the collision, and that he was treated for those injuries by Dr. Cowart, who had been his personal physician for several years pri- or to the accident. He stated that he had not injured his knee, back or neck prior to the accident. That statement was verified by Dr. Cowart.

Considerable latitude is permitted in the asking of hypothetical questions to expert witnesses, and the form and wording of the questions is left largely to the discretion of the trial court. Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977, 980 (1951). It is not essential that a question to an expert witness embrace every fact in evidence. Counsel asking such a witness the question may assume, within the limits of the evidence, facts which enable the witness to express an opinion. Buchanan v. Central Freight Lines, Inc., 462 S.W.2d 391 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416 (Tex.Civ.App.—Corpus Christi 1967, no writ). Any facts omitted from the question propounded to the witness may be the subject matter of cross-examination by opposing counsel. Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955 (1935, opinion adopted). Here, the questions asked Dr. Cowart were not hypothetical, but were grounded on 1) his examination of plaintiff; 2) the “history” which he obtained from plaintiff; 3) his prior treatment of plaintiff before March 18, 1970; and 4) his education, experience and training. Counsel for defendants, who had every opportunity to cross-examine Dr. Cowart at the time his deposition was taken, chose not to avail himself of that right. If defendants were unduly concerned about the “history” that Dr. Cowart said plaintiff gave him at the hospital, they could have inquired about the same at the time of the deposition, or they could have called the doctor as a witness at the trial. They did neither.

Contrary to defendants’ argument made in their brief, Dr. Cowart, according to the deposition, was told by plaintiff at the hospital on March 18, 1970 that he (plaintiff) had been injured that morning in an automobile accident and that he had sustained bodily injuries which he described to the doctor. The objections in the trial court and the contentions in this Court that “no proper factual predicate was laid” for Dr. Cowart “to give a medical opinion to state whether or not what he diagnosed was the result of an automobile accident” and the further contention in this appeal that the opinion was not admissible because there is nothing in the record to show “the part of appellee’s body receiving trauma” are refuted by the doctor’s own statement, as well as by testimony from plaintiff.

The grounds for the objections made in the trial court for the exclusion of the doctor’s medical opinion and those advanced in this appeal are not the same. At the trial, defendants’ objections were grounded on the assertion that the doctor had not been given any facts upon which to base his opinion that plaintiff was injured in the automobile accident. The point raised in the appeal states that it was error to admit such opinion because “it is not based on any facts in the record. . . . ” Be that as it may, the point is without merit.

Facts relating to how the accident happened and the position of the vehicles, while relevant to the issues of contributory negligence and proximate cause, are immaterial to the furnishing of a basis for a medical opinion that plaintiff was injured in the collision. The position of plaintiff in his car at the times material to this lawsuit is not material to the formulation of an opinion from a qualified doctor with respect to the specific injuries sustained in the collision, their effect and extent. The trial court did not err in admitting Dr. Cowart’s testimony into evidence. Defendants’ fourth point is overruled.

The judgment of the trial court is affirmed.


author: MeKAY, Justice.

text:
    CITY OF GARLAND, Texas, et al., Appellants, v. Charles M. MAYHEW, et al., Appellees.
    No. 880.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 18, 1975.
    Rehearing Denied Oct. 23, 1975.

      Edward Blackstone, Asst. Dist. Atty., Earl Luna, Luna, Murto & Sibley, Dallas, Pete Eckert, City Atty., Garland, for appellant, Judge Robert E. Day.
    H. P. K’ucera, Thomas C. Unis, Strasbur-ger, Price, Kelton, Martin & Unis, Dallas, for appellees.
   MeKAY, Justice.

Appellants, City of Garland and the Honorable Robert E. Day, Judge of the County Court at Law No. 4, Dallas County, bring this appeal from a summary judgment rendered in the 134th Judicial District Court of Dallas County, Texas, in favor of appellee, Charles M. Mayhew. The judgment of the district court overruled the plea in abatement of appellants and permanently enjoined the City of Garland and its attorneys from further prosecuting the condemnation proceeding instituted by them in the County Court at Law No. 4, Dallas County, Texas, being Cause No. CC-74-11548-d. We hold that the district court was without jurisdiction to enjoin the condemnation proceedings in the county court at law, and the permanent injunction should be dissolved.

The City of Garland, a home rule city, is building a new sewage plant called the Duck Creek Sewage Disposal Plant. The City Council of Garland decided it was necessary for the city to obtain the fee simple title to certain real property belonging to appellee, Charles M. Mayhew, for the purposes of building, owning and maintaining related appurtenances to the sewage disposal plant, including roadways, a railroad spur track, and for other municipal purposes. Pursuant to this decision, the City of Garland instituted condemnation proceedings to condemn the strip of land belonging to ap-pellee in the County Court at Law No. 4 of Dallas County, the Honorable Robert E. Day presiding.

After notice and hearing, the commissioners appointed by Judge Day returned an award to compensate the appellee for the property proposed to be taken. Appellee then filed an appeal from the award of the commissioners with the county court at law objecting to the authority and jurisdiction of the court to entertain the petition for condemnation and to the award on the following grounds: (1) the City of Garland did not make a bona fide offer to the appellees for the acquisition of the property; (2) the city is not authorized by Art. 3264, V.A.T.S. to condemn property for railroad purposes or to operate a railroad; (3) the city could condemn only for a permanent easement for railroad purposes and not in fee simple; and (4) the city could not condemn property within the corporate limits of the town of Sunnyvale without the consent of Sunnyvale.

Subsequently, appellee filed a petition for injunction in the 134th Judicial District Court of Dallas County to enjoin the City of Garland from further prosecuting the condemnation proceedings and to enjoin Judge Day from further entertaining such proceedings in the County Court at Law No. 4. Appellants filed a plea in abatement in the district court alleging the pendency of the condemnation suit in the county court at law. Appellee filed a motion for summary judgment alleging there was no material issue of fact in that (1) the City of Garland does not have authority to condemn property in the town of Sunnyvale without its consent; (2) the City of Garland does not have authority to condemn property for railroad purposes nor to own and operate a railroad; and (3) the City of Garland cannot condemn property in fee simple for a railroad right of way, rather, if it possesses such authority it should condemn for a permanent easement.

In the judgment of the district court, appellants’ plea in abatement was overruled; the appellee’s motion for summary judgment was granted; and the City of Garland and its attorneys were permanently enjoined from further prosecuting the condemnation proceedings in the county court at law. The City of Garland and Judge Day gave notice of appeal from such judgment and have perfected their appeal to this court.

Appellants urge that the trial court erred in assuming jurisdiction to grant the injunction because the county court at law had exclusive jurisdiction to determine all issues raised in the condemnation case. We agree with this contention.

It would appear from the language in appellee’s motion that the summary judgment was granted upon the ground that the City of Garland did not have the power or authority to condemn the particular property involved for the purposes expressed. There was no contention or pleading in such motion that the county court at law lacked jurisdiction of the case or that the City of Garland lacked the general power of condemnation. Therefore, in our opinion the district court exceeded its jurisdiction in entertaining the petition of appellee and in granting the summary judgment.

The county court at law is a court of general jurisdiction in eminent domain matters, and this jurisdiction by necessary implication includes the right to try and decide all questions which may arise in such controversies, including the right to determine whether the existing facts authorize the exercise of the power thus conferred. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973); Missouri-Kansas-Texas R. Co. of Texas v. Jones, 24 S.W.2d 366 (Tex.Comm’n App.1930). The county court’s jurisdiction in a condemnation suit attaches immediately upon the filing of a petition containing the statutory allegations requisite to condemn property, Compton v. Texas Southeastern Gas Company, 315 S.W.2d 345 (Tex.Civ.App.—Houston, 1958, writ ref’d n. r. e.); and once that jurisdiction attaches, the county court is the only tribunal with the authority to determine in the first instance any objections raised in connection with the condemnation proceedings. Texas & N. O. R. Co. v. City of Beaumont, 285 S.W. 944 (Tex.Civ.App.—Beaumont, 1926, writ ref’d).

In the earlier case of Missouri-Kansas-Texas R. Co. of Texas v. Jones, supra, the Commission of Appeals construed the language of Article 3268, sec. 3, V.A.T.S., and answered the precise question involved here in the following words:

“This (Art. 3268) seems to plainly indicate a purpose to clothe the county court with power to determine the question as to whether under existing conditions a plaintiff has shown a right to condemn the property sought to be taken.” (emphasis added)

In Austin Independent School District v. Sierra Club, supra, the Supreme Court of Texas has recently reemphasized the holding in Jones with the following language:

“It is clear then that the question of the District’s right to condemn the school site under the facts and circumstances of the case does not go to the jurisdiction of the County Court at Law but was a matter to be resolved by that court in the exercise of its jurisdiction.” (emphasis added)

The jurisdiction of the County Court at Law No. 4 having been invoked, that court had exclusive jurisdiction to determine whatever right, power or authority the City of Garland possessed to condemn the particular property involved for the purposes expressed. Art. 3268, sec. 3, V.A.T.S.; Austin Independent School District v. Sierra Club, supra; Missouri-Kansas-Texas R. Co. of Texas v. Jones, supra; White River Municipal Water District v. Walker, 370 S.W.2d 945 (Tex.Civ.App.—Amarillo, 1963, no writ); Pickens v. Hidalgo County Water Control and Improvement District Number Sixteen, 284 S.W.2d 784 (Tex.Civ.App.—San Antonio, 1955, no writ). Since the county court has exclusive statutory jurisdiction in all eminent domain matters, once that jurisdiction is invoked and attaches, the property owner is precluded from pursuing a parallel suit in the district court in the same subject matter. Nagy v. City of Amarillo, 358 S.W.2d 682 (Tex.Civ.App.—Amarillo, 1962, writ ref’d n. r. e.). The district court was without jurisdiction to entertain the suit of appellee. Appellee has ample opportunity to seek the redress of any grievances suffered in the county court at law through the appellate process.

In light of the district court’s lack of jurisdiction, further consideration of the points raised on this appeal is unnecessary.

The judgment of the district court is reversed, the injunction is dissolved, and the suit is dismissed.

Reversed and dismissed.


author: McDONALD, Chief Justice.

text:
    Charles Gene CARSON, Appellant, v. Janet Carroll CARSON, Appellee.
    No. 5470.
    Court of Civil Appeals of Texas, Waco.
    Sept. 18, 1975.
    Garner, Vickers, Purdom & Nelson, Lubbock, for appellant.

      Bob Huff & Associates, Harley Huff, Lubbock, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Charles Gene Carson from that portion of a divorce judgment which required him to pay $1500. to Janet Carroll Carson and $750. attorney’s fees.

Appellant filed this case for divorce alleging the marriage had become insupportable because of discord and conflict of personalities; that there were no children and no community property. Appellee filed answer and cross action for divorce, alleging the existence of community property, requesting that same be divided, and praying for $500. attorney’s fees.

After hearing, without a jury, the trial court rendered judgment granting Appellant a divorce; awarding Appellant a tent, plus all personal effects in his possession; awarding Appellee a $1500. judgment against Appellant plus $500. attorney’s fees if the case be not appealed, and $750. attorney’s fees if the case be appealed.

Appellant appeals on 2 points contending the trial court erred: 1) In awarding attorney’s fees of $750.; 2) In awarding money judgment of $1500. to Appellee.

Appellee plead for an award of $500. attorney’s fees. She testified she had agreed to pay her attorney $500. attorney’s fees; and an attorney of the Deaf Smith County Bar testified that an award of $500. would be a reasonable attorney’s fee in a divorce case in the area.

The trial court awarded a $500. attorney’s fee if the case be not appealed; and on the court’s own motion provided the fee would be $750. if Appellant should appeal.

Plaintiff is limited to the amount of the attorney’s fee pleaded for, Carpetland, Inc. v. Nixon, CCA, NWH, 394 S.W.2d 269; and is limited to the amount of the attorney’s fee she agreed to pay to her lawyer. Brooks v. Brooks, CCA, NWH, 480 S.W.2d 463. See also Rule 301, TRCP, and Aetna Cas. and Surety Co. v. Taff, CCA, NRE, 502 S.W.2d 903. Point one is sustained to the extent indicated.

The trial court further awarded Appellee judgment for $1500. against Appellant.

The trial court made a finding that the community estate and Appellant’s personal estate were enhanced by Appellee’s separate property funds and that an equitable division of the community estate is an award of Appellant’s personal property and the tent to Appellant, and an award of $1500. and her personal effects to Appellee.

The trial court has wide discretion in matters of this nature and will not be reversed unless we are able to say from the record that the trial court acted arbitrarily or that there is an abuse of discretion. See Renfro v. Renfro, CCA, NWH, 497 S.W.2d 807, and cases there cited.

The record reflects that Appellee paid out of her separate funds in excess of $800. for repairs of or payments on Appellant’s separate property, and in excess of $1100. of her separate funds on community debts; that Appellant is making $1200. per month; and that Appellee would make about $500. per month if she were working; (she is not working); that the parties were married 61 days when Appellant filed for divorce.

We are unable to say from the record that the trial court acted arbitrarily, or that there is an abuse of discretion.

Point 2 is overruled.

The judgment is reformed to delete $250. of the attorney’s fee awarded by the trial court, and as reformed is affirmed. Costs of appeal are divided equally between the parties.

Reformed and affirmed.


author: ELLIS, Chief Justice.

text:
    UNITED BEEF PRODUCERS, INC., Appellant, v. Fred LOOKINGBILL, Appellee.
    No. 8557.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 22, 1975.
    Rehearing Denied Oct. 20, 1975.

      Witherspoon, Aikin, Langley, Woods, Kendrick & Gulley, Kenneth Nolan Tarlton, Hereford, for appellant.
    Richard T. Collard, Friona, for appellee.
   ELLIS, Chief Justice.

In this appeal, the defendant-appellant challenges the judgment of the trial court overruling its motion for a new trial in an action in which a default judgment had been entered against the defendant for failure to file an answer in response to the plaintiff’s original petition. Affirmed.

Fred Lookingbill, plaintiff-appellee, brought suit against United Beef Producers, Inc., defendant-appellant, seeking recovery of compensation which he claimed the defendant owed him in connection with his previous employment by the defendant in its beef feeding operation. Lookingbill alleged that the defendant had agreed to pay him a salary of $1,000 per month and additionally would keep 200 head of cattle on feed for him under an arrangement whereby United Beef would co-sign a note for the purchase of the cattle, with United Beef absorbing all losses and Lookingbill receiving all net profits. Only 100 head of such cattle had been fed when Lookingbill voluntarily terminated his employment after approximately six months. The 100 head of cattle fed out for the plaintiff during his employment netted him the sum of $7,188.96. In his petition, plaintiff asserts that the defendant violated its contract by not arranging to feed out 200 head of cattle during the period of his employment, and by his suit he claims that he is entitled to an additional sum of $7,188.96 as compensation for his employment by reason of the defendant’s failure to arrange for the feeding of 200 head instead of 100 head of cattle, plus attorney’s fees, interest and costs of suit.

The plaintiff’s petition was filed in the District Court of Deaf Smith County, Texas, on August 5, 1974. Citation was served on United Beef through Larry McLeod, a vice president of the corporation, at his home on September 5,1974. On October 7, 1974, no answer having been filed in response to plaintiff’s petition, the trial court entered default judgment against United Beef for the full amount of plaintiff’s claim for additional compensation, plus attorney’s fees, interest and costs.

On October 17, 1974, plaintiff’s counsel contacted McLeod concerning payment of the default judgment. McLeod immediately contacted an attorney, and a sworn motion for new trial was timely filed on the same day. By its motion United Beef alleged that the failure to file an answer was not intentional or the result of indifference, but was caused by accident or mistake. The motion set out that the failure to answer the petition resulted from the fact that a prior lawsuit involving the plaintiff, defendant and Hedgecoke Motor Company had been filed and a settlement agreed upon; that the defendant erroneously assumed that the papers served in this case related to the settlement of the prior suit and that no further action concerning the instant case was necessary.

Additionally, the sworn motion for new trial alleged defensively and testimony was presented at the hearing on the motion to the effect that the contract with Looking-bill was for one year; that the agreement was that the defendant would guarantee notes for the purpose of feeding 200 head of cattle a year for him; that he voluntarily terminated his employment after approximately six months, during which employment 100 head of cattle were fed; and that by reason of plaintiff’s action in terminating his employment, the defendant was not further obligated to fulfill the remaining terms of the employment contract. Also, it was alleged that no harm will be done to plaintiff by the granting of the motion for new trial.

During the hearing on the amended motion for new trial, Larry McLeod testified that at the time citation was served upon him at his home on September 5, 1974, he was running late for a business meeting and was in the process of taking a shower when the deputy sheriff interrupted him to serve the citation. McLeod took the paper, laid it aside without reading it. and went to his business meeting. At a meeting the next morning with the president of the corporation, Mr. Huttenbower, and the treasurer, Stanley Chesley, who is an Ohio attorney and general counsel for United Beef, McLeod told them he had been “served with citation on the Lookingbill case.” McLeod had not read the papers and did not bring them to the meeting. Ches-ley, assuming the citation dealt with a prior suit pending in Potter County between United Beef, Lookingbill and Hedgecoke Motor Company and on which the parties were about to agree to a settlement, told McLeod “not to worry” since “it’s already taken care of.” Also, McLeod testified that he signed a check payable to Hedgecoke in connection with the settlement. The citation and attached petition were not read by any representative of the defendant company until after they were informed that default judgment had been entered.

After hearing, the trial court entered judgment overruling the motion for new trial. Through three points of error, which basically assert that the trial court abused its discretion in denying the motion for new trial, the appellant seeks reversal and remand to the trial court for a new trial.

To be entitled to a new trial, United Beef was required to show that its failure to answer before judgment was due to a mistake or accident rather than being intentional or the result of conscious indifference, provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof would occasion no delay or otherwise work a hardship on Lookingbill. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Further, the motion must contain factual allegations which in law would constitute a meritorious defense and must be supported by evidence proving prima facie that the defendant has such meritorious defense. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). Such a motion is addressed to the trial court’s sound discretion and the action of the trial court in overruling a motion for new trial will be upheld unless there is a showing of abuse of discretion. Brothers Department Store, Inc. v. Berenzweig, 333 S.W.2d 445 (Tex.Civ.App.—San Antonio 1960, no writ); Hubbard v. Fidelity & Casualty Co. of New York, 285 S.W.2d 890 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.); Young v. Snowcon, Inc., 463 S.W.2d 225 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

After hearing the evidence, the trial court denied a new trial without filing findings of fact; thus, the precise factual basis upon which the court determined that United failed to establish its right to a new trial is- not before us. However, the rule of Craddock presumes the power of the trial court to determine from the record the true facts bearing on the defendant’s mental attitude in failing to file an answer and the equitable question of delay and hardship. Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.—Galveston 1956, no writ).

In the light of the foregoing authorities and from a review of the entire record and all of the circumstances, it is our opinion that there is sufficient evidentiary justification and support for the trial court to find that the defendant treated the service of citation with conscious indifference, and that we cannot say that such finding should be regarded as an abuse of judicial discretion.

Even assuming that the evidence would prima facie support the appellant’s contention that its conduct in connection with its failure to read the citation prior to the taking of the default judgment and the consequent failure to file an answer to plaintiff’s petition was a result of accident or mistake emanating from the coincidence of the two suits involving Lookingbill, rather than intentional conduct or conscious indifference on the appellant’s part, and that the appellant alleged facts prima facie setting up a meritorious defense, it is also required, under the rule of Craddock, that the appellant establish that the motion for new trial “is filed at a time when the granting thereof will occasion no delay or otherwise work any injury [on] the plaintiff.” Thus, the burden was on United to show that the granting of the motion would not entail a consequent delay and work a hardship on Lookingbill. Griffin v. Duty, supra.

United made the allegation that “no harm will be done to Plaintiff by the granting of this motion for new trial.” The record contains no evidence to support the allegation.

In the plaintiff’s sworn answer to the defendant’s amended motion for new trial, the following contention regarding the creation of hardship in the instant case is set forth:

“Plaintiff is a resident of Wiley, Colorado, and will be forced to journey from there in the event a new trial is granted herein. Plaintiff has already made one trip from his home in Wiley, Colorado, to Hereford, Texas, in order to try said cause on its merits, which this Court did on October 7, 1974, when judgment was granted herein. It will create an unwarranted hardship on this Plaintiff if this Court should determine to grant a new trial herein to Defendant.”

It is noted that in the instant case, United did not offer, as did the defaulting defendant in Craddock, to indemnify Looking-bill for his expenses incurred in the litigation, which, in itself, is sufficient to show a hardship on Lookingbill. We observe, also, that in addition to Craddock, there are various cases in which it was shown that the defaulting defendant had established that the failure to answer was not the result of conscious indifference and that the defendant had set up a meritorious defense wherein the court specifically noted that no hardship, was shown because the defendant had demonstrated a willingness and offered to pay the expenses and costs of the hearing on the motion in setting aside the default judgment or the expenses in taking the default judgment and agreed to try the case promptly. Illustrative of such cases are:

Ward v. Nava, 488 S.W.2d 736 (Tex.1972), in which the defaulting defendant stated in his motion his willingness to pay the expenses and costs of the hearing on the motion in the setting aside of the default judgment;
Hubbard v. Fidelity & Cas. Co., 285 S.W.2d 890 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.), wherein the defaulting defendant offered to pay all court costs incident to entry of default judgment and that he was ready and willing to try the case on its merits at any time convenient to the court;
Continental Airlines, Inc. v. Carter, 499 S.W.2d 673 (Tex.Civ.App.—El Paso, 1973, no writ) wherein it was shown that the appellant having offered to reimburse the appellee for all expenses in taking the default judgment and having further agreed to promptly try the case, there would have been no delay or injury to the appellee by the granting of the new trial; and
Republic Bankers Life Ins. Co. v. Dixon, 469 S.W.2d 646 (Tex.Civ.App.—Tyler 1971, no writ), where appellant had offered to pay costs and attornéy’s fees to appellee’s counsel if new trial were granted.

In the case of Griffin v. Duty, supra, the court pointed out that, in addition to its view that the defendant in that case had not set up a meritorious defense, “. defendant’s omission when seeking equity to offer to do equity by expressing a willingness to indemnify plaintiff against the double expense of two trials affords additional basis for the trial court’s ruling.” Also, in Griffin, the court noted that the plaintiff was a resident of Wichita Falls, Texas, and took judicial notice that Wichita Falls was several hundred miles from Harris County, and stated that a new trial might very well have necessitated considerable additional expense for travel, etc. Further, the court observed that the defendant did not offer to stand any part of this or other possible expenses to plaintiff and his witnesses to flow from a new trial, nor explained his lack in this respect.

In view of the foregoing, it is our opinion that if the trial court found that United failed to discharge its burden to negative injury to the plaintiff, the finding is not only supported by the record, but the record compels that finding. Thus, an essential requirement of the rule of Craddock that the motion must be “filed at a time when the granting thereof will occasion no delay or otherwise work an injury [on] the plaintiff” has not been satisfied.

For the reasons above stated we hold that the trial court did not abuse its discretion in overruling the motion for new trial. Because of this holding we do not further discuss the other points presented by the appellant.

The judgment of the trial court is affirmed.