author: HUGHES, Justice.

text:
    Thurman McKINNEY, Appellant, v. AIR VENTURE CORPORATION, Appellee.
    No. 18015.
    Court of Civil Appeals of Texas, Fort Worth.
    March 1, 1979.
    Rehearing Denied March 29, 1979.

      Brown, Herman, Scott, Dean & Miles and J. Shelby Sharpe, Fort Worth, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller and Robert F. Ruckman and H. Dudley Chambers, Dallas, for appellee.
   OPINION

HUGHES, Justice.

This appeal is from a wrongful death action involving the crash of a private plane on or about June 8,1974. All six persons on board, including plaintiff’s wife, were killed when the 1973 Piper Aztec crashed six miles northeast of Cresson, Texas while returning to Meacham Field in Fort Worth from a business trip to Lubbock. It is undisputed that the crash occurred when the plane encountered turbulence caused by a wind shear, (the leading edge of cold air outflow from the severe thunderstorms in the area). The jury refused to find the pilot’s actions that night negligent and a judgment that McKinney take nothing was rendered.

We reverse and remand for a new trial. The jury here could properly have found negligence and, in this case, its failure to so find is unjust because it is against the overwhelming preponderance of the evidence.

This suit was filed by Thurman McKinney against Corpening Enterprises, the estate of A. Y. Corpening, Jr., and appellee, Air Venture Corporation, for the wrongful death of his wife, Virginia. She was an employee of Corpening Enterprises, a sole proprietorship operated by A. V. Corpening, Jr. The plane was owned by Air Venture. Corpening was Air Venture’s president and sole stockholder.

McKinney sued for actual and exemplary damages against all defendants jointly and severally. However, at the close of the evidence he dismissed Corpening Enterprises and the Corpening estate, and abandoned his claim for exemplary damages.

McKinney contends the pilot was negligent in encountering the thunderstorm activity and in failing to divert the plane to another airport prior to encountering the activity. The jury found that, while the pilot did fly the plane into intense thunderstorm activity and did not divert to another airport, these actions were not negligent. These negative findings are the basis of McKinney’s two points of error. The jury also found that the flight in question was part of a joint enterprise between appellee, Air Venture Corporation, and A. V. Corpen-ing, Jr., doing business as Corpening Enterprises; that the pilot was a borrowed employee of Air Venture on that occasion; that the pilot was then acting as an employee of Air Venture; and that $147,225.00 would fairly compensate McKinney for his wife’s death.

McKinney claims the jury’s negative findings on the negligence issues are against the great weight and preponderance of the evidence. Where the verdict is attacked as being against the great weight and preponderance of the evidence, the court of civil appeals has the duty to examine all of the evidence. If we find the verdict clearly unjust, we should remand the case for a new trial, even though the verdict is supported by more than a scintilla of evidence and even if reasonable minds could differ about the conclusion to be drawn from the evidence. Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803 at 805 (1952). In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Flying an airplane is an activity not within the realm of experience of the ordinary prudent person or juror. Therefore, it is a suitable subject for expert testimony. In this case, six experts in various fields testified on the liability issues for both plaintiff and defendants. Two experienced pilots testified that, in their opinion, the pilot was negligent in encountering the storm activity. This was not contradicted with any pilot testimony but defendants sought to establish that the air traffic controllers did a substandard job that night in not conveying certain weather information to the pilot. Both sides introduced expert testimony as to the severity of the storm and agreed that a wind shear was the cause of the crash.

Several technical terms were used by various witnesses to describe this weather phenomenon: “cold air outflow”, “wind shift line”, “wind shear line”, “shearline”, “roll cloud”, “fine line”, “thin line”, and “gust front”. The terms “wind shear” and “cold air outflow” are used interchangeably. The term “gust front” is used in talking with pilots. We will use the term “wind shear”.

The plane involved was a twin-engine Piper Aztec. The pilot held a commercial license for both single and multi-engine land aircraft, was instrument rated and a qualified flight instructor with over 3,000 flying hours as a pilot in command. The pilot was John Dittmaier.

The facts are undisputed in this case. The plane departed Meacham Field in Fort Worth the afternoon of June 8, 1974 on a business trip to Lubbock. Before departure, the pilot received a weather briefing from the local National Weather Service Forecast Office forecasting widespread thunderstorm activity that night along his proposed return route of flight. After concluding their business in Lubbock, the pilot and his five passengers took off at approximately 10:30 p. m. to return to Meacham Field. A witness testified he heard the pilot say they “might hit a little wet whether on landing.”

Shortly after takeoff, the Fort Worth Air Traffic Control Center recommended a change in route because of thunderstorm activity along the proposed flight path. The original flight plan called for the plane to fly over Guthrie and Bridgeport, and then to Meacham Field. The pilot was advised by the Center that it might be necessary to proceed as far south as Waco to circumnavigate the thunderstorms. The pilot was told that the weather in question extended from approximately twenty miles west of Millsap, to Wichita, Kansas, with the line moving slowly southeastward and building to the southwest.

The pilot requested additional weather information and was told by the controller that:

[Ijt’s not too bad in the metropolitan area but this thing is to the west, extends from, well the part that would affect you the most would be from Bridgeport to Millsap; that’s pretty solid line out there, pretty — pretty heavy on the scope, ah I don’t think I’d try to penetrate it myself if I were flying, they’re forecasting at Carswell, (Carswell Air Force Base in west Fort Worth) for instance, within the next hour or so to go a thousand overcast with thunderstorms and hail and high winds.

The pilot accepted the suggested change in flight plan and turned the aircraft south toward Abilene. While in the Abilene area, the pilot contacted Abilene Flight Service Station requesting en route weather for Dallas. The Flight Service Station reported a solid line of thunderstorms from 10 to 15 miles wide extending from 25 miles southwest of Mineral Wells to Denton, moving eastward. Flight Service reported frequent lightning in clouds west through north of the Dallas area and read a forecast which called for thunderstorms and heavy rain showers and a wind shift after 10:00 p. m. In addition, the pilot was told that “Stephenville radar indicated tops of the clouds to be from 51,000 feet to around 59,000 feet.”

Flight service then read the pilot two SIGMETs, Significant Meteorological Reports , which again warned of severe thunderstorms with cloud tops near 60,000 feet. Finally, the pilot was advised of severe thunderstorms en route to and at his destination. The pilot acknowledged these radio transmissions and “[a]dvised he would continue on.” The pilot turned eastward toward Acton.

Shortly thereafter, Abilene Approach Control advised the pilot of weather activity approximately 35 to 40 miles ahead and at his “eleven o’clock position”, slightly to the left of his course, (the twelve o’clock position being straight ahead). The pilot replied that he could see the activity on his aircraft’s weather radar and requested permission to deviate south. Abilene Approach Control indicated that a deviation south would be approved.

The pilot continued to a point approximately 27 miles southwest of Acton and contacted Fort Worth Air Traffic Control Center. The pilot asked, “How does it look towards Meacham?” The air traffic controller replied that it was clear at that time with “everything just lying north of it on a southwest-northeast line.” The pilot requested permission to proceed directly to Meacham Field and was cleared to do so at 11:50 p. m.

At 11:55 p. m., while flying in a northeasterly direction, the pilot reported seeing radar returns on the aircraft’s radar scope approximately twenty miles ahead. The pilot requested a deviation to the southeast and, receiving no immediate response, requested a deviation to the south. At the same time, the pilot reported seeing something on his radar which looked “a little bit hairy” or “heavy”. The controller approved a deviation to the south.

At approximately 11:59 p. m. the pilot reported seeing radar returns 18 or 19 miles ahead and asked the controller, “[w]hat does it look like from where you are?” The controller replied, “It looks pretty bad — its ah — just a mile north of Meacham right now.” This transmission occurred approximately three minutes before the crash.

The pilot then asked how the weather looks on a direct line from his position to Meacham Field. The controller responded that it was clear at that time but added, “I couldn’t guarantee it.”

The pilot at this time was descending from 6,000 feet to the newly assigned altitude of 3,000 feet.

The final radio transmission from the pilot stated: “Sev-Seven Alpha Victor is deviating south we’re_ we’re getting in.” The remainder of the radio transmission is unintelligible. The crash site was approximately 16 miles southwest of Meacham Field.

Expert witnesses for both McKinney and Air Venture agreed that the thunderstorm activity en route and at the planned destination was severe, and the weather reports characterized it as such. Plaintiff’s expert witness Eggspuehler, a pilot, stated that the weather information given Dittmaier - the lightning in the clouds and cloud to cloud, the tops of the clouds being up to 60,000 feet, the dew point and temperature - clearly indicated to any pilot the storm’s severity. Eggspuehler’s testimony explained the implications of each piece of weather information to a pilot. He stated that the significance of the lightning reports was to tell Dittmaier that “[t]his is the most dangerous stage of a thunderstorm. [It] indicates that you have turbulence that may exceed the structural limits of an aircraft.”

Expert witnesses for both sides agreed that the danger to aircraft in this situation from severe thunderstorm activity is the turbulence created ahead of the thunderstorm cells by the wind shear. Dr. Goldman, a defense expert weather witness, testified that the wind shear phenomenon is caused by cold air “generated from the evaporation of rain drops in dry air” rushing downward in a thunderstorm and spreading out as it strikes the ground. When this cold air flow meets warm air, the mixing action of the two air masses causes great turbulence.

Expert testimony from both sides agreed that the area of greatest turbulence is at the wind shear line — where the cold air outflow from the storm meets the warmer air in front of it. Plaintiff’s expert weather witness Taft estimated that the wind shear encountered by the plane was in excess of 60 knots (approximately 69 m. p. h.).

Evidence established that a wind shear of the type which caused the crash is not present in every large thunderstorm, and, when present, may lie anywhere from within the storm itself to as much as 50 miles ahead of the thunderstorm cell. Eggspueh-ler, one of the pilots who testified as an expert witness, stated that because of the devastating effects when wind shear is encountered by light aircraft, pilots are taught to stay at least 15-20 miles away from all mature thunderstorms of the type present on the night in question. Dr. Goldman, a meteorologist, testified that the average cold air outflow would be expected to be between 10 and 25 miles out from the thunderstorm. He further testified that this outflow is usually confined to below the base of the clouds. In this case he estimated its height to be approximately 3,500 feet.

The testimony established that a wind shear line generally cannot be detected on most radars, including the airborne radar which the pilot had available. While during daylight hours, a' wind shear can be sometimes detected visually by “raising dust”, Dr. Goldman stated that at night the only way to know positively that there is one present in a storm is by a 180 degree wind shift on the ground.

Defendant introduced into evidence transcripts of government tapes of interphone conversations between air traffic controllers and radio transmissions between the controllers and the pilot. These transcripts show that the controllers were aware of a wind shift on the ground at Meacham Field approximately 30 minutes before the crash.

The transcripts were prepared by defense witness Frank McDermott as part of his investigation. McDermott, who trained as an air traffic controller, is an aviation consultant specializing in aircraft accident investigation. He testified that, in his opinion, the handling of the flight by the controllers was “substandard”. This attack on the controllers’ performance is the primary basis for appellee’s defense.

McDermott stated that he specifically referred to “not providing the flight with information known to the controllers on the weather and the movement of the weather through the area; and, in failing to provide the pilot with the weather in time for the pilot to make a decision as to what he should do for the safety of his flight.” By this, he testified, he meant the information about the wind shift at Meacham which was not directly given to Dittmaier.

McDermott read into the record provisions of two Air Traffic Controllers’ Manuals in which their duties and responsibilities in connection with weather information and handling of aircraft were discussed. He stated that the manuals, one for en route controllers and one for terminal controllers, have identical provisions. One section that McDermott read stated that controllers were to familiarize themselves with “pertinent weather information when coming on duty, and stay aware of current weather information needed to perform air traffic control duties.”

He further testified that the manual stated that the controllers were to provide assistance in areas of “significant weather” by suggesting alternate routes to avoid them and to advise radar identified aircraft whenever “radar observation reveals a situation which, in your judgment, is likely to affect the safety of the aircraft.” He also read a section of the manual which stated, “Issue pertinent information on radar observed weather, and chaff areas, and suggest radar navigational assistance to avoid these areas. Provide this assistance only when the pilot requests it, whether or not you have previously suggested it. Do not use the word turbulence in describing a condition in connection with weather echoes since radar scopes do not show areas of turbulence.”

McDermott also identified defense exhibit 14 as a copy of a page from a controller’s training manual dated September, 1973. He testified that training manuals were available for study by working controllers as well as trainees. Defendant then introduced the copy into evidence. It has text discussing hazards to aircraft from thunderstorms and a drawing of a cross section of a thunderstorm showing possible locations of turbulence.

McDermott testified that, when the controller learned of the wind shift at Meac-ham, he should have known that the “weather is moving through there” and that, with a storm of this type there “could be severe turbulence extending out as far as ten to twenty miles in advance of this movement, . . .” He stated that instead of informing the pilot of the wind shift, they told Dittmaier he could probably make Meacham Field.

He read transmissions from the transcript that he characterized in his opinion as being an “inaccurate and misleading statement of the weather situation that the controllers knew existed, . . . .” In a transmission at 11:52 p. m., approximately 23 minutes after the wind shift at Meacham, Ditt-maier asked, “[h]ow does it look over toward Meacham?” The controller said, “Well, on my radar it’s in the clear right now, everything just lying north of it on a southwest-northeast line.”

He explained that while a controller’s radar is designed to minimize weather to the point that it only shows the “more concentrated forms”, they are trained to know that “turbulent portions extend out well beyond what is actually showing on the scope”, and the fact that Meacham Field appeared clear on his scope “would not delude a trained controller into thinking that the airport was clear.”

McDermott further criticized the information given by the controller in a transmission at 11:59 p. m. There, Dittmaier said, “[W]e’re starting to paint some stuff about eighteen or nineteen miles ahead of us, what does it look like from where you are?” The Approach Controller replied, “It looks pretty bad, it’s uh, just about a mile north of Meacham right now.” Ditt-maier said, “OK, what about our present position direct Meacham, are we pretty clear as far as you can tell?” The controller replied “Well, at the present time it is, but, uh, I couldn’t guarantee it.” Dittmaier said “OK.”

McDermott testified that, in his opinion, the controller gave Dittmaier a false impression of the location of the weather by telling him it was about a mile north of Meacham. He stated that in his opinion this conveyed the impression to the pilot that the weather was still north of Meac-ham when “in fact part of it had moved through thirty minutes prior to that.” He then stated that in his review of the government tapes, there was no indication that Dittmaier was ever advised of the wind shift at Meacham but that the same controller advised another pilot of it.

We have examined these exhibits for ourselves and considered McDermott’s testimony as to the effect to be given the controller’s failure to inform Dittmaier directly of the wind shift at Meacham Field. This failure is the basis of McDermott’s opinion and the crux of Air Venture’s defense.

Our examination of the transcript shows that the same controllers who handled the doomed plane handled two Braniff flights and informed their pilots of a wind shift at “Regional Airport” (also referred to by the parties as D-FW). However, the transcript also shows that the information given the Braniff pilots about the wind shift was only in the context of informing them of a change in landing runway, (we assume necessitated by the change in the wind’s direction). The transcript shows that even when discussing the wind shift among themselves, the controllers give it no special significance. According to the provisions in their manuals read into evidence by McDer-mott, the controllers could not have used the word “turbulence” in connection with informing a pilot of a wind shift anyway. On cross examination, McDermott stated that he was unable to say whether Dittmaier and the Braniff flights were on the same radio frequency (since they were handled by the same controller), and thus whether Ditt-maier would have been able to monitor the information given them about the wind shift at Dallas — Fort Worth Regional Airport.

The page from the controller’s training manual introduced into evidence by defendants does not mention the term “wind shift”. It appears that the one time the term “wind shear” is used, it has reference to turbulence within a thunderstorm cell. The text under the picture states that “Surface gusts and rotor motion can be extremely hazardous to aircraft landing, taking off, and flying at low altitude.”

Rotor motion is a reference to turbulence. Further, the testimony established, it is impossible to know, even if the wind conveniently shifts at a place where it can be observed, how far out the wind shear will extend from that point or how long it will be present.

McDermott testified that he had based his opinions on his experience as an air traffic controller and consultant. However, he stated that he had not been an active controller since 1953 nor had he ever controlled traffic in a modern radar environment.

Robert Rudich stated that he was presently a consultant in aircraft accident investigation and he had a total of 26 years experience as an air traffic controller, including ten years as head of the Air Traffic Controller Investigation Section of the National Transportation Safety Board.

Rudich testified that, in his opinion, the controllers gave “[o]ne of the most complete disseminations of weather information that I’ve seen in ... an accident.” He also testified that in his opinion they furnished the pilot with adequate information concerning the weather that was ahead of his aircraft. Rudich’s testimony, as McDer-mott’s, was based on the government tapes.

He was asked about the conversation between the controllers at 11:29 p. m. concerning the wind shift at Meacham. The conversation, (the only one the controllers apparently had with each other on the subject), was as follows:

Acton Controller: “What’s your altimeter now?”
Fort Worth Flight Service Station: “Looks like its on the rise, we’ve had a windshift here, looks like its south about three hundred degrees now, twenty, gusts to about thirty.”
Acton Controller: “Uh, huh, OK, Thank you.”

Fifteen minutes after this interphone conversation, Dittmaier established radio contact with the Acton Controller. In response to Dittmaier’s question, “[h]ow does it look over by Meacham”, the controller replied, “Well on my radar, its in the clear right now, everything just lying north of it on a southwest-northeast line”.

Rudich was asked what the interphone conversation indicated to him as a controller. He stated that the wind shift to him was associated with the passage of a cold front “which was forecasted, which information had been provided to the pilot numerous times in weather briefings . . .” He further stated that the “three hundred degrees” meant that at some point the wind had swung around to the northwest, and that the altimeter being on the rise indicated a frontal passage, “all of which was contained in various reports and forecasts provided to the pilot” particularly those provided to the pilot by the Abilene Flight Service Station.

He then testified that he found no fault with the air traffic controllers in not communicating the fact of the wind shift to the pilot because fifteen minutes after the in-terphone communication, when the plane first established radio contact with the Acton controller, the controller told the pilot that, on his radar, Meacham was “in the clear right now, everything just lying north of it on a southwest-northeast line.”

Rudich testified that controllers are required to provide the pilot with “significant weather information”, but that information concerning a wind shift is not “significant weather” as described in controller manuals in effect at that time. McDermott, as part of his testimony for the defense, had read into the record several excerpts from Air Traffic Control Manuals. McDermott’s testimony took place after Rudich’s and did not contradict this statement. Rudich also testified on cross examination that the controller was expected to advise the pilot of conditions which would make the landing hazardous, but that these would be hazards “of which he was aware, not that he thought might exist”.

As previously mentioned, only plaintiff presented pilot testimony evaluating the conduct of the flight. The primary fact dispute in the case is whether Dittmaier, the pilot, should have turned at Acton Omni in an attempt to reach Meacham Field in Fort Worth. Plaintiff’s two expert pilot witnesses stated emphatically that in view of all the weather information Ditt-maier had received, he should not have risked a close encounter with the storm activity. In response to the question of whether or not Dittmaier had been given sufficient weather information both pilots stated without equivocation that he had. They both further testified that they would have turned back at Acton Omni.

The first pilot witness was Jack Eggs-puehler, Chairman of the Department of Aviation at Ohio State University, a flight instructor and pilot examiner for the Federal Aviation Administration. He has an instrument rating and approximately 9,000 hours of flight experience. The second pilot witness was William Bonnell, a retired American Airlines pilot with approximately 25,000 flying hours.

Eggspuehler was questioned extensively about the wind shear phenomenon. He testified that while a wind shift of 180° on the ground would indicate that the wind shear line had passed, he was not aware of any weather data that would definitely tell a pilot whether there was going to be a wind shear, or if there was one, where it would be located. But, he stated that the heights of the thunderstorm cells “would be indicative to a prudent pilot that he is going to have this outflow, that its going to be severe weather, and that extreme caution, more than usual should be exercised”.

On direct examination he testified that, for as long as he had been flying, pilots had been taught that fifteen to twenty miles was a safe distance to remain clear of a well developed thunderstorm because of this outflow phenomenon. He further stated that it was his opinion that “most pilots are aware of the dangers that thunderstorms present, the characteristics of thunderstorms, and that there is a reasonably safe distance to maintain from well developed thunderstorms in order to assure the safety of the flight.”

Defendant asked him, “if the pilot didn’t know a wind shift [had occurred] — and, the pilot couldn’t see that [wind shear line] on his radar, he would not have that information for a certainty, would he, sir?” Eggs-puehler replied, “No. I would have to add, sir, that I don’t see how the pilot could escape knowing that.”

Evidence adduced that pilots and air traffic controllers have concurrent responsibilities in regard to flight safety. The record in this case reflects extensive testimony on this subject. All the expert testimony agreed that pilot decisions are not within the purview of air traffic controllers. Both sides further agreed that controllers cannot forbid a pilot to land because of weather. That is a pilot’s decision. The cases which discuss the interrelationship of pilot and controller responsibilities hold that the pilot is primarily responsible for operation of the aircraft, but his responsibility is predicated on his being informed of all facts necessary for safe flight. Note, Expanding Liability of Air Traffic Controllers, 39 J. Air L. & Comm. 599 (1973).

From the evidence it is clear that Ditt-maier made a decision as a pilot to continue to fly towards Meacham. The adverse weather conditions were forecasted, reported to him and confirmed by the pilot’s own observations from his airborne radar.

We need not decide whether the controllers were required to relay to Dittmaier the information about the wind shift. The rest of the extensive information he received informed him of the storm’s severity and location in relation to his flight path and destination. He made a decision as a pilot to risk the possibly devastating consequences of an encounter with a severe storm front that was one mile from his proposed destination and moving towards it. All of the information he had, combined with his experience as a pilot should have told him there was a substantial risk of encountering severe turbulence or other dangerous weather phenomena before he had completed a safe landing.

Air Venture urges that the plane was more than 17 miles from Meacham Field when it encountered the wind shear and thus outside of the 15 to 20 mile danger area of which Eggspuehler testified. In its brief, Air Venture states that “the aircraft encountered the turbulence associated with the cold air outflow which preceded the thunderstorm activity that was situated northwest of Meacham Field.” Air Venture further states that “at the time the aircraft made its last transmission, the aircraft was 25 miles away from the radar echo.” A close examination of the record and exhibits has caused us to disagree with these statements as they pertain to the location of the plane at the time of the crash in relation to the thunderstorm activity. We conclude from the testimony and exhibits that it is the plane’s distance from the thunderstorm that is crucial, not the distance from Meacham.

Defendant’s exhibit 2 and plaintiff’s exhibit 1 indicated that both sides substantially agree on the approximate flight path of the aircraft during and just prior to the crash. The witnesses who constructed these exhibits were Eggspuehler and Dr. Goldman. They both testified that their exhibits were based on transcripts of radio transmissions between the pilot and air traffic control agencies along the route of flight.

The court has also carefully studied plaintiffs exhibits 17 and 18 prepared by expert witness Taft, a meteorologist. They consist of tracings from photographs of the storm as it showed on government radar. The photographs of the thunderstorm cells as they appeared on the radar scope were made by operators of a National Weather Service weather radar unit at Stephenville as a routine part of their duties. These exhibits indicate that the storm front was oriented on a line from southwest to northeast near the time of the crash. Defendant’s exhibit 6, which included a chart depicting the location of the storm front, was constructed by Dr. Goldman, a meteorologist, by “transposing what was on the Ste-phenville film itself.” This exhibit also indicated that the storm front was arrayed in a southwest to northeast line. The court was not presented with the rest of the parts of this exhibit which, according to Goldman’s testimony, depicted the position of the storm front at various times before the crash. The reproduction of defendant’s exhibit 6 before us indicates only the position of the storm front at 10:01 p. m. on the night in question. The other portions of the exhibit, which Goldman’s testimony states were transparencies showing the position of the front at later times, were unfortunately not included in the record brought up to this court.

We conclude that the testimony and exhibits indicate that during the final minutes of the flight, the pilot was flying in a northeasterly direction roughly parallel to a solid line of severe thunderstorms approaching his flight path from the northwest.

This court has compared the flight path of the aircraft, as depicted on defendant’s exhibit 2 and plaintiff’s exhibit 1 with the weather information depicted on plaintiff’s exhibit 17, which indicates the positions of the storm front at various times in relation to the crash site. We have concluded from measurements taken from the statute miles scale printed on the chart that both the flight path of the aircraft just prior to the crash and the crash site itself were within fifteen statute miles of the leading edge of the storm front as plotted from radar reports at 11:43 p. m., approximately nineteen minutes prior to the crash.

This court has also carefully studied plaintiff’s exhibit 18, which depicts the leading edge of the storm front at 12:02 a. m., approximately the time of the crash. Again, we concluded, using the same techniques as previously mentioned, that both the flight path of the aircraft just prior to the crash and the crash site itself lie within fifteen statute miles of the leading edge of the storm front as detected by radar.

Defendants attempted to establish the location of the aircraft in relation to the storm by questioning Dr. Goldman about defendant’s exhibit 4 which he had prepared. He testified that the exhibit accurately portrayed by scale the distance that the airplane was from the storm when it encountered the outflow. The scale, in nautical miles, showed that the plane was at approximately the exhibit’s 8 mile marker when the pilot made his last transmission, and that the radar echo appeared then at about the exhibit’s 25 mile marker.

When the exhibit was introduced Dr. Goldman testified he drew it in chart form to portray “the outflow from the squall line area of this particular case, relative to the location of the aircraft . . . .” However, he stated that it was a little distorted in order to give more vertical detail. Further, the exhibit shows an outline for the visible cloud being closer to the plane than the line depicting the radar echo of the storm as it showed on Stephenville radar. Goldman explained that radar detects less of the storm than actually exists because it “sees” rain particles rather than cloud particles. The actual front of the storm, not just its radar echo, was located on his exhibit at approximately the 22 mile mark. Therefore his exhibit, ignoring whatever effect the distortion he testified to would have had, showed the plane to be roughly 14 nautical miles from the actual storm front.

We conclude from an examination of defendant’s exhibits 3 and 4 and Dr. Goldman’s testimony that the purpose of these exhibits was not to establish how close the plane was to the storm front, but rather to illustrate what he stated to be his only opinion in this case: that the cause of the crash was that the aircraft encountered the weather that is associated with the leading edge of cold air outflow that is related to a thunderstorm.

Plaintiff’s exhibit 16, a graphical presentation of the Stephenville weather radar films at the approximate time of the crash, and meteorologist Taft’s testimony indicate that a solid line of thunderstorms was approaching the Fort Worth area. Taft indicated two areas in the line which contained the most significant thunderstorm cells associated with the storm front. An individual cell within the line was located west of Fort Worth. This cell was measured by radar to have a cloud top of 48,000 feet with hail indicated. According to Taft’s testimony, this thunderstorm cell was moving “toward the east”. We conclude that this cell was the most significant individual cell threatening the Fort Worth area although Taft also testified to and the exhibit showed a second large cell further away from the Fort Worth area “north of Dallas, up near McKinney”.

The exhibits and testimony also clearly show that the wind shear, as identified by Taft from magnified radar pictures prior to the crash, emerged on a broad front from the line of thunderstorms and not only from the portion of the thunderstorm activity located northwest of Meacham Field.

We therefore find that, by turning northeast in the vicinity of the Acton Omni and thus flying roughly parallel to the line of thunderstorms, the pilot placed his plane within 15 statute miles of the approaching storm front off to his side. In summary, we conclude that the pilot was at the time of the crash, well within the 15 to 20 mile danger area described by both plaintiff and defense expert witnesses.

Air Venture’s argument seems to be that, unless a pilot is positive a wind shear is present, he may fly as close as possible to thunderstorm activity, and so long as he does not penetrate the thunderstorm cell itself, his actions are not negligent. We disagree. From a careful study of the extensive testimony regarding this phenomenon, it appears that a wind shear is one possible part of a severe thunderstorm, just as rain, hail, lightning and turbulence within the cell itself are possibilities.

The fact that a wind shear is somewhat more difficult to predict or detect than some of the other phenomena associated with a storm front of this size and intensity should cause a prudent pilot to exercise greater caution. This is especially true in situations like this where, as the evidence indicates, the pilot had access to information all of which indicated that the storm front in question was particularly severe. The principles stated by a Missouri court apply in this case:

“[W]here science does afford or comes to afford a forewarning of a weather condition attended by the probability or reasonable likelihood of a hazard of dangerous turbulence, it would be too much to say that the airline need not anticipate and take the commensurate precautions reasonably available to guard against the hazard; and where the means or precautions, in given circumstances, of avoiding the hazard of dangerous turbulence are known or are pointed out in the evidence to have been available, as in our case, the failure to take such specific commensurate precaution or precautions, in our opinion, constitutes negligence.” Cudney v. Braniff Airways, 300 S.W.2d 412, 417 (1957 Mo.); 73 A.L.R.2d 371; 5 CCH Avi 17282.

Because of the possibility of extremely hazardous flight conditions in the vicinity of thunderstorms, such as were present that night, it has long been the practice of pilots to avoid them. The possibility of the presence of a wind shear is simply one of several reasons to avoid the area close to thunderstorms, especially that area lying directly in the storm’s path. See Hardy, Wind Shear and Clear Air Turbulence, 42 J. Air L. & Comm. 165 (1976).

Further, in this case the evidence shows that the pilot had available to him several alternate airports not affected by the storm front and adequate fuel to reach them. Dittmaier’s flight plan, filed prior to take off from Lubbock, showed he estimated the return trip would take one hour and thirty minutes and that he had five hours of fuel on board.

McKinney contends that this court is authorized to reverse and remand this cause solely on the basis of the allegedly uncon-tradicted testimony of his expert pilot witnesses that Dittmaier was negligent. He argues that their testimony falls within the rule stated in Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944). In that opinion the Supreme Court stated that:

“The judgments and inferences of experts or skilled witnesses, even when un-controverted, are not necessarily conclusive on the jury or the trier of facts, unless the subject is one for experts or skilled witnesses alone where the jury or the court cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.” (Citing cases.)

We agree that the factfinder in aviation cases is often presented with issues requiring specialized knowledge to understand. However, because of our analysis of the record as a whole, we do not reach the question of whether the pilots’ expert testimony was controlling. As to the probative force to be given it, the basic issue in the case was Dittmaier’s conduct. The record shows that the other expert witnesses were not qualified to evaluate his conduct and did not attempt to do so.

We believe the expert pilot testimony submitted for the jury’s consideration evidence tending to establish Dittmaier’s negligence. This evidence was practically uncontradicted by other relevant and probative evidence. Based upon all the evidence submitted at trial,. we conclude that the jury’s failure to find the pilot negligent was either based upon a misapprehension of the effect of the evidence or that the great weight of it preponderated the other way.

Air Venture, in addition to arguing the negligence points, also advances by counterpoints other reasons why the take nothing judgment was proper and should be upheld. Its third counterpoint attacks the jury answers to special issues eight and nine, which dealt with whose employee the pilot was at the time of the crash. Air Venture claims there is no evidence to support the jury findings that, on the occasion in question, the pilot was its borrowed employee or was acting as its employee. McKinney contends that this attack against the jury’s answers to special issues is contrary to Tex.R.Civ.P. 420 and 418. He argues that an appellee’s proper mode of attacking jury findings is by cross points and since Air Venture’s brief contains no cross points, we cannot consider them.

We disagree. Appellee is not conditionally attacking the judgment below. He is merely bringing forward other grounds which he contends support an affirmance of the judgment in his favor. The proper means to do this is by counterpoints. See O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65 at 84-85 (1974). Passing upon Air Venture’s no evidence points, we may only consider the evidence favorable to the jury findings. We have done this and believe that there is evidence to support the jury in its findings that the pilot’s relationship was such as to hold Air Venture responsible for his conduct under the doctrine of respondeat superior.

While the evidence shows that John Dittmaier was listed on Corpening’s payroll summary of 1974, he was the pilot on all occasions that Air Venture’s plane was used. Air Venture was incorporated March 28, 1974. Dittmaier was hired in April of 1974. Several checks drawn on Air Venture’s account and signed by A. V. Corpen-ing, Jr., as its president were entered into evidence. They were made out to John Dittmaier for expenses. Dittmaier issued a memorandum on Corpening Enterprises stationery dealing with scheduling of Air Venture’s plane. In evidence was an invoice from Air Venture, Inc. to Corpening Enterprises billing them for charter flights. Also entered into evidence was a letter to A. V. Corpening from his attorney advising him to put both the pilot and the plane into a separate corporation to avoid liability. The evidence shows that Air Venture, while solely owned and operated by A. V. Corpen-ing, Jr., nevertheless was properly incorporated under the laws of Texas. We conclude that however intertwined their business pursuits were, Air Venture and Cor-pening Enterprises maintained themselves as separate and distinct business entities.

Air Venture contends that its only connection with the trip in question was that it was the owner of the plane. It argues that the most that can be said is that there was some kind of bailment between Air Venture as bailor and Corpening Enterprises as bailee. It asserts that, while the record does not show precisely what arrangements were made to use its plane for this business trip, this is understandable as all persons with any personal knowledge of these details died in the crash. Therefore, there is nothing in the record to sustain McKinney’s burden of proving that Dittmaier was any kind of employee of Air Venture in order to hold it responsible for Dittmaier’s negligence, if any.

We disagree. We assume, without deciding, that Corpening as an individual may have had ultimate control over the destination and scheduling of Air Venture’s plane. He would have had no reason to organize Air Venture as a corporation and then have it purchase an airplane unless it served his convenience. However, by Federal regulation, control of a flight was Dittmaier’s, the licensed pilot. See 14 C.F.R. § 91.3 (1978). He controlled the plane when it was in use. His decisions as to the details of flight such as actual take off time, and operation of the plane in the air were not determined by Corpening Enterprises’ business needs. They were rather independent decisions made depending on the plane’s capabilities and prevailing flight conditions as, in his judgment as a pilot, these affected the safety of the plane and its passengers. Further, as a pilot it would have been unlawful under Federal regulations for him to surrender power or control over the actual operation of the plane entrusted to him by Air Venture. 14 C.R.F. § 91.3 (1978).

Under these facts, Air Venture’s purchase of the plane would have been pointless without the employment of a pilot. No other purpose except piloting Air Venture’s plane is shown for Dittmaier’s employment. In other words he performed services for Air Venture by flying its plane for Corpen-ing Enterprises. We therefore hold there is some evidence of probative value in the record to support the jury findings regarding whose employee Dittmaier was at the time of the crash.

Air Venture contends that while McKinney’s two points of error are couched in terms of overwhelming weight and preponderance of the evidence, they are really no evidence points since the complaint is of rendition of the judgment. It further argues that since the complaints are really no evidence points, and McKinney permitted the accompanying proximate cause issues to be conditionally submitted upon affirmative answers to the negligence issues, the proximate cause issues are deemed to have been found against him by the trial court’s judgment. We overrule these contentions.

McKinney’s points of error are as follows:

Point of Error One
The trial court erred in entering judgment in favor of Appellee based on the jury’s answer to Special Issue No. 2 wherein the jury failed to find that the pilot was guilty of negligence in flying the aircraft into the intense thunderstorm activity since said answer is against the overwhelming weight and preponderance of the evidence so as to be manifestly unjust.
Point of Error Two
The trial court erred in entering judgment in favor of Appellee based on the jury’s answer to Special Issue No. 5 wherein the jury failed to find that the pilot’s failure to divert the aircraft to another airport immediately before flying the aircraft into the intense thunderstorm was negligence since said answer is against the overwhelming weight and preponderance of the evidence so as to be manifestly unjust.

A review of the transcript shows that prior to entry of judgment McKinney filed a motion for judgment notwithstanding the verdict and motion to disregard jury findings. After judgment against him was rendered, he filed his motion for new trial attacking the jury’s negative findings on the negligence issues as being against the overwhelming weight and preponderance of the evidence. The only relief he sought below and here is a reversal and a remand for a new trial. We agree with Air Venture that the language used to characterize a point of error is not controlling. Instead, the procedural steps below to which the points relate are determinative. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). By that standard, these points are insufficiency points rather than no evidence points and hence there are no deemed findings of proximate cause. Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963). Webb v. Jorns, 530 S.W.2d 847, 854 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.).

Air Venture further contends that regardless of the merits of McKinney's points, it is immune from this action as a matter of law. It claims immunity because the jury allegedly found it to be an agent of Corpen-ing Enterprises, Mrs. McKinney’s employer, a subscriber under the Texas Workmen’s Compensation Act. According to Air Venture, it is an agent of Corpening Enterprises because the jury found that they were acting as a joint enterprise “in the operation of the aircraft in question”. It argues that the Texas doctrine of joint enterprise or joint venture makes each party thereto the agent of the other for purposes of tort liability.

It notes that Tex.Rev.Civ.Stat.Ann. art. 8306 § 3 (1967), states that employees “shall have no right of action against such subscribing employer or his agent, . for damages for injuries resulting in death ..” In the trial court Air Venture pleaded that, by virtue of having received death benefits under the Act, McKinney had no cause of action against it for ordinary negligence. It was stipulated at trial that Corpening Enterprises was a subscriber under the Act and that Thurman McKinney had been paid full death benefits.

Air Venture reasons that since the jury found in effect that it was an agent of Mrs. McKinney’s employer, a subscriber under the Act, it follows as a matter of law that it is immune from this action. However, the Texas Supreme Court has held that an injured claimant may be entitled to recover in a third party action even though the defendant would be regarded as an employer’s agent for some purposes. McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964). In order to gain the immunity afforded by Tex.Rev.Civ.Stat.Ann. art. 8306 § 3 (1967), the person seeking it must be “one for whose conduct the employer would, aside from the Workmen’s Compensation Act, be legally responsible under the doctrine of respondeat superior.” McKelvy, supra, at 62. The Supreme Court went on to state that an important consideration was whether the employer had the right to control physical details as to the manner of performance which is characteristic of the master-servant relationship. McKelvy, supra, at 63.

As stated earlier in this opinion, we do not find that Corpening Enterprises controlled the details of the operation of the plane in flight. The jury question, together with the answer, was as follows:

QUESTION NO. 7:
At the time of the occurrence in question, was Air Venture, Inc. and A. V. Corpening, Jr., d/b/a Corpening Enterprises acting as a joint enterprise in the operation of the aircraft in question?
“Joint enterprise” means: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Answers “Yes” or “No”.
ANSWER: YES

We hold that the furnishing of the plane for the business trip did not place its operation in flight under the control of Mrs. McKinney’s employer. Further, Corpening was not in general responsible for the actions of Air Venture under the doctrine of respondeat superior. He incorporated Air Venture on the advice of his lawyer to avoid any individual liability that he might incur since he ran Corpening Enterprises as a sole proprietorship. Therefore, we hold that Air Venture was not an agent of Mrs. McKinney’s employer for purposes of the Workmen’s Compensation Act.

We have carefully examined all the intelligible exhibits and all of the testimony, viewing the record as a whole and in the light most favorable to the verdict. In re King’s Estate, supra. Further, in a case like the.one we have here, it is not enough that it is unclear that the verdict is right, rather it must clearly appear that the verdict is wrong. Phipps v. Evans, 262 S.W.2d 430 (Tex.Civ.App.—Waco 1953, writ ref’d n. r. e.).

The question here then is: “[D]o the evidence and attending circumstances so strongly negative the exercise of any care on the part of the appellee as to lead to the conclusion that the jury were laboring under some misapprehension or improper motive or influence in arriving at their verdict?” Gulf, C. & S. F. Ry. Co. v. Wilson, 59 S.W. 589 at 591 (Tex.Civ.App.1900, writ dism’d).

While the appellate courts of this state should be careful not to invade the province of the jury, they are empowered to set aside a verdict based on insufficient evidence or when the facts disclosed show that it was manifestly against the truth of the case. Gulf, C. & S. F. Ry. Co. v. Wilson, supra. For the reasons given above, we are of the opinion that this verdict was against the weight of the evidence and the interests of justice require a new trial.

Reversed and remanded.

      . A SIGMET is a warning to be disseminated to all pilots of particularly hazardous flight conditions for all types of aircraft. These were issued by the Dallas-Fort Worth Weather Service.

      . The Acton Controller handed Dittmaier off to Regional Approach Control at 11:58 p. m.

      . We take judicial notice of the fact that according to the Federal Aviation Administration, D-FW or Dallas-Fort Worth Regional Airport is located between Dallas and Fort Worth and is approximately 16 nautical miles from Meac-ham Field.

      . Rudich testified that the word “south” was probably a mistranscription because it doesn’t fit in with three hundred degrees, which indicated to him that the wind had swung around to the northwest.

      . A VOR (VHF Omni Range) transmitter or navigational aid located approximately 32 miles southwest of Meacham Field.

      . The exhibit also shows what weather witness Taft referred to as the “thin line” extrapolated position for 12:02 a. m., the time of the crash. This “thin line” would be the cold air outflow ahead of the storm front, or wind shear. Taft stated that it was unusual for radar to be able to pick this up but by magnifying the radar films of this storm, he was able to do so at 11:00 p. m., 11:27 p. m., and 11:43 p. m., because of the storm’s intensity. His extrapolation of the position of where this “thin line” should have been at 12:02 a. m., coincides with the site of the crash. However, the measurements herein discussed were made to the storm front itself, not to the “thin line” or wind shear line.

      . On cross examination, plaintiff’s weather witness Taft was asked if at any time “this aircraft penetrated any of the dense echo thunderstorms themselves?” Taft replied that it did
        not “enter into the echoes represented on the radar, which are precipitation shafts. Now, I think he got into part of the cloud formation, which may have extended out to the gust line, and that is part of the thunderstorm." (Emphasis ours.)

      . The parties in this case use the terms joint enterprise and joint venture interchangeably. While it does not affect our decision, since we are remanding this case for a new trial we note there are some differences. See 58 Am.Jur.2d Negligence § 465 (1971); Keeton, Imputed Contributory Negligence, 13 Tex.L.Rev. 161 at 163 (1935); 40 Tex.Jur.2d Negligence § 95 (1976); 46 Am.Jur.2d Joint Ventures § 5 (1969).


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    CONTINENTAL CONTRACTORS, INC., et al., Appellants, v. Paul THORUP, d/b/a P & S Construction Specialists, Appellee.
    No. 17285.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 1, 1979.

      Paul C. Murphy, III, Huntsville, Win-stead, McGuire, Sechrest & Trimble, J. Robert Fisher, Dallas, for appellants.
    Davis, Davis, Durham & Schulze, E. M. Schulze, Jr., Huntsville, for appellee.
   EVANS, Justice.

The plaintiff, a concrete subcontractor doing business as P & S Construction Specialists, brought this action against two defendants, Continental Contractors, Inc., the prime contractor, and Balboa Insurance Company, the surety on Continental Contractors’ payment bond, to recover for labor and materials supplied in connection with a public drainage project in Huntsville, Texas. The defendant, Continental Contractors, filed a counterclaim seeking damages for plaintiff’s alleged failure to complete his obligations under the subcontract.

At the close of the plaintiff’s evidence, the defendants filed a motion for dismissal and a motion for judgment, both of which were overruled by the trial court. The case was submitted to a jury, and on the basis of its verdict the trial court entered judgment in favor of the plaintiff. After a hearing on the defendants’ motion for new trial, a remittitur was ordered and filed. Both defendants bring this appeal.

The defendants first contend that the trial court erred in overruling their motion for dismissal at the close of the plaintiff’s evidence because the plaintiff had not filed an assumed name certificate as required by Section 36.10 Texas Bus. & Comm.Code. This contention will be denied.

The civil penalty for failing to file an assumed name certificate as required by Section 36.10 is set forth in Section 36.25 Texas Bus. & Comm.Code:

Failure to comply with the provisions of this chapter by any person shall not impair the validity of any contract or act by such person nor prevent such person from defending any action or proceeding in any court of this state, but such person shall not maintain an action or proceeding in any court of this state arising out of a contract or act in which an assumed name was used until an original, new, or renewed assumed business or professional name certificate has been filed as required by this chapter . . . (emphasis added) Added by Acts 1977, 65th Leg., P. 1095, ch. 403, § 1, effective August 29, 1977.

The effect of this provision is to authorize the court to abate an action until the required certificate has been filed. See comment, Section 36.25 Tex.Bus. & Comm. Code (Supp.1978).

Although it was apparent from the face of plaintiff’s petition that his claim was being asserted under an assumed name, the defendants waited until the second day of the trial to bring this matter to the trial court’s attention by filing their motion to dismiss.

A plaintiff’s right to maintain the suit in the capacity in which he sues is properly raised by a plea in abatement, not by a motion for dismissal. Coakley v. Reising, 436 S.W.2d 315 (Tex.1968). A plea in abatement not relating to matters of jurisdiction must be urged before the trial on the merits begins; otherwise it is waived. Rule 175, Tex.R.Civ.P.; In re Estate of Maxey, 559 S.W.2d 458 (Tex.Civ.App.-Tex-arkana 1977, writ ref’d n. r. e.); Parkview Gen. Hosp. v. Waco Const., Inc., 531 S.W.2d 224 (Tex.Civ.App.-Corpus Christi 1975, no writ). The effect of a non-jurisdictional abatement of the cause is to suspend further action in the case until the cause for abatement has been corrected. Haney v. Temple Trust Company, 55 S.W.2d 891, 893 (Tex.Civ.App.-Austin 1932, writ dism’d).

Since the plaintiff’s capacity to sue under an assumed name was not called to the courts attention until the trial was in progress and after the plaintiff had closed his evidence, the plaintiff’s failure to have an assumed name certificate on file was not properly called into question. Furthermore, even if the question had been properly presented, the court’s action in abating the cause until an assumed name certificate had been filed was not reversible error under the facts of this case.

In their second and third points of error the defendants contend that the plaintiff failed to prove that he had complied with a statutory condition precedent to the assertion of his claim. The statute relied upon by the defendants specifies that the claimant must give written notice of his claim to the prime contractor and the surety within 90 days after the 10th day of the month next following each month in which the labor was done or performed or materials were delivered. Article 5160B, Tex.Rev. StatAnn. (1977). It has been held that proof of the notice requirements of this statute is a condition precedent to a subcontractor’s cause of action against the payment bond required by statute. Bunch Electric Company v. Tex-Craft Builders, Inc., 480 S.W.2d 42 (Tex.Civ.App.-Tyler 1972, no writ).

The plaintiff in the case at bar did not offer proof that he had given the notice required by statute, but he did allege in his petition that all relevant conditions precedent to the defendant’s liability had occurred or been performed. The defendants filed only a general denial and did not specifically deny that the plaintiff had given the statutory notice; therefore, the plaintiff was not obligated to offer independent proof that he had given the required notice.

“In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the [other] party.” Rule 54, Texas Rules of Civil Procedure

The defendants argue that under the holding in Bunch Electric Company v. Tex-Craft Builders, Inc., supra, the question of proper notification was raised by their un-sworn general denial and that the plaintiff was required to offer proof that proper notification had been given, notwithstanding the fact that his petition alleged performance of all conditions precedent to his recovery under Rule 54, Tex.Rev.Stat.Ann. In Bunch, the court merely held that the statutory notice requirements would be considered a part of the parties’ contractual agreement, requiring proof by the party relying on the contract that he had complied with the statutory requirements. The court’s opinion in Bunch does not indicate that such proof would have been required if the plaintiff in that case had alleged in his petition that all conditions precedent had been performed or had occurred, as authorized by Rule 54 Texas Rules of Civil Procedure. The defendants’ second and third points of error will be denied.

By cross-point, the plaintiff contends that the trial court abused its discretion in ordering a remittitur which had the effect of reducing the amount of his attorneys’ fees below that which the evidence established to be reasonable and just compensation. The trial court’s order for new trial does not reflect which portion of the verdict it considered excessive, and this court cannot determine from the record that the remittitur is directed solely to the item of attorneys’ fees. In determining whether the trial court was justified in ordering a remittitur, this court must consider whether, in the light of the entire record, the trial court’s order of remittitur is manifestly unjust. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 840 (1959). Under the circumstances presented, this court is unable to determine that the trial court abused its discretion in ordering a remittitur in the amount stated. The plaintiff’s cross point is denied.

The judgment of the trial court is affirmed.

COLEMAN, C. J., and WALLACE, J., sitting.


author: DICKENSON, Justice. RALEIGH BROWN, Justice,

text:
    Preston O. BARKER, Jr., Individually and as next friend of David Keith Barker, Appellants, v. BATEMAN FOUNDRY & MACHINE COMPANY, INC., Appellee.
    No. 5180.
    Court of Civil Appeals of Texas, Eastland.
    March 1, 1979.
    Rehearing Denied March 29, 1979.

      Kenneth C. Kaye, League City, David Cleveland, Creighton & Cleveland, Mineral Wells, for appellants.
    S. G. Johndroe, Jr. and William B. David, Port Worth, Duncan Gault, Mineral Wells, for appellee.
   DICKENSON, Justice.

The question presented is whether the jury answered enough of the special issues to support the judgment which was entered on the verdict. Plaintiffs, Preston 0. Barker, Jr., and his minor son, David Keith Barker, sued defendant, Bateman Foundry & Machine Company, Inc., for the boy’s personal injuries. Plaintiffs alleged that Bateman Foundry manufactured an ice crushing machine which injured the three-year old boy by crushing his right hand, forearm and elbow, resulting in their surgical amputation. Plaintiffs alleged negligence, breach of implied warranty and strict liability. Bateman Foundry denied any liability and pleaded that its product, an ice crusher, was not unreasonably dangerous when used properly and in the manner in which it was intended to be used. Bateman Foundry also denied that the machine was in the same condition at the time of this accident on September 13,1972, as it was when it was originally manufactured and sold, sometime between 1946 and 1952. The jury returned a partial verdict which is summarized as follows:

SPECIAL ISSUE NO. 1
The ice grinder was not defectively designed or manufactured.
SPECIAL ISSUE NO. 2
No answer was required in view of the negative answer to 1.
SPECIAL ISSUE NO. 3
The failure of Bateman Foundry to provide the ice grinder with a slip clutch or similar device was not negligence.
SPECIAL ISSUE NO. 4
No answer was required in view of the negative answer to 3.
SPECIAL ISSUE NO. 5
The jury failed to answer the question: “Do you find from a preponderance of the evidence that the failure of Bateman Foundry & Machine Company, Inc. to provide the ice grinder with an ‘on-off’ switch was negligence?”
SPECIAL ISSUE NO. 6
The jury failed to answer the question: “Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question?”
SPECIAL ISSUE NO. 7
The failure of Bateman Foundry to provide the ice grinder with a one-way door, flap or screen was not negligence.
SPECIAL ISSUE NO. 8
No answer was required in view of the negative answer to 7.
SPECIAL ISSUE NO. 9
The jury answered “none” for past medical, hospital care and prosthetic devices.
SPECIAL ISSUE NO. 10
The jury answered “none” for future prosthetic devices.
SPECIAL ISSUE NO. 11
The jury failed to answer the damage issue concerning past and future physical pain and mental anguish and for loss of future earning capacity and disfigurement.

Plaintiffs moved for a mistrial. Bateman Foundry moved for judgment on the verdict. The trial court rendered judgment that plaintiffs recover nothing. Plaintiffs’ amended motion for new trial asserts among other grounds that the court erred in accepting a defective and incomplete verdict from the jury and in permitting Bate-man Foundry to prove that the medical, hospital and prosthetic expenses had been furnished by the State of Texas at no cost to plaintiffs. Plaintiffs appeal from the Order overruling their Amended Motion for New Trial. The judgment will be reversed, and the cause will be remanded.

Plaintiffs’ first two points of error were that the trial court erred in (1) accepting a defective and incomplete verdict from the jury and in (2) basing its judgment upon a defective and incomplete verdict. We agree that the trial court erred in accepting an incomplete verdict and entering judgment thereon.

Tex.R.Civ.P. 279 provides in part that: “When the court submits a case upon special issues, he shall submit the controlling issues made by the written pleadings and the evidence . . .

Tex.R.Civ.P. 290 provides in part that: “A verdict is a written declaration by a jury of its decision, comprehending the whole or all the issues submitted to the jury . . .” (emphasis added)

Tex.R.Civ.P. 301 provides in part that: “The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict . . . .”

3 McDonald, Texas Civil Practice (1970) § 15.03.01 states that:

When a cause has been submitted on special issues, every material issue must be answered by the jury and the court cannot, under any circumstances, supply findings upon unanswered or incompletely answered material issues. When it develops that a tendered verdict contains material issues which have not been answered responsively, the court should decline to accept it and should, with proper written instructions pointing out the defect, retire the jury for further deliberations. If, after such deliberations, the jurors still are unable to answer one or more material issues, a mistrial results. . . .

See also, Allied Finance Company v. Gammill, 440 S.W.2d 897 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.).

Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368 (1948), states the rule as follows:

If a fair trial requires the submission of all issues raised by the testimony although a finding on some may negative a favorable finding on others, it necessarily follows that a finding on some of the submitted issues does not defeat a litigant’s right to have other submitted issues answered, merely because such answers may be conflicting. Otherwise, the verdict would not comprehend, “the whole or all the issues submitted,” as required by Rule 290, Texas Rules of Civil Procedure.

Special Issues 5, 6 and 11 are material, and the evidence requires that they be submitted to the jury. Burke Wiley, Inc. v. Lenderman, 545 S.W.2d 226 (Tex.Civ.App.—Houston (1st Dist.) 1976, writ ref’d n. r. e.).

H. A. Lehman, President of Bateman Foundry, testified in part as follows:

Q Did Bateman manufacture that machine (the one involved in the incident)?
A It did.
Q . the reason that Bateman did not furnish on-off switches on its machines, even today, is because the electrical codes, of say Mineral Wells, are different from the electrical codes, of say New York City?
A That is correct.
Q How is it, sir, that the people who make these edgers get away with furnishing electrical cords and on-off switches for both New York City and Mineral Wells?
A I wouldn’t know that.
Q All right. When you operated these ice crushers at your convention, sir.
A Yes.
Q You had to put on an electrical cord?
A That’s correct.
Q And an on-off switch?
A That is correct.
Q Why did you put on an on-off switch?
A So we would have control of the ice crusher.
Q All right, sir. Why didn’t you just plug it in and unplug it?
A That’s a no-no.
Q Was it a no-no back in 1946 to 1952?
A As far as my knowledge on equipment, that would be unpractical.
Q Well, you did it when you took it to the conventions. It wasn’t unpractical while you were trying to sell everybody this machine.
A Because we were operating it ourselves.
Q You were cautious about the safety of your employees then?
A That’s correct.
Q That’s a fair statement.
A Right.
Q But the caution did not extend to people who might buy the machine?
A (No answer.)
MR. DAVID: Answer it, go ahead.
A I’m trying to think. Certainly the caution went to the people that’s going to buy that because we didn’t put it on for them in the first place.

The ice crusher machine was introduced into evidence and an ice crushing procedure was demonstrated to the jury.

The eyewitness, Mike Barksdale, testified in part as follows:

Q . . - go ahead and tell me what you recall about how this accident happened.
A Okay. We had loaded, I guess — I don’t know. We probably had two hundred pounds of ice already loaded; had the last tub to load, I think, and I was crushing. And some man — I don’t know his name — he came in and wanted some fish. And the ice was crushing, you know, while he came up. Well, Mrs. Barker, she went inside the fish house with him and said, “I’ll be ba^ck in just a second.” Well, I waited for it to quit crushing, and when it did, I grabbed the tub and turned around. I had seen the children inside the fish house, but they usually kept a tight rein on them and kept them away from out front when they were crushing ice. I watched them anyway, because having one of my own, naturally, I just watch closer. I couldn’t have been turned around three seconds until I heard the baby scream. And when I turned around, it had him pulled up plumb to his shoulder in that ice machine. I’m not sure how he got — I mean, I can guess how he got into it, but, anyway, it got him from the underneath side is how he was hooked in the ice crusher, because it had him pinned against the bottom of the crusher. His shoulder was up in it. And when I heard him screaming, I reached around and pulled the wire out of the wall. And when I did this, the baby fell down, and I just reached and picked him up and headed for my truck. Well, the man that was there — I don’t recall who he is — but, anyway, he wanted to drive. And he thought the baby was mine, and at the time I didn’t even know whose baby it was. But we put him in the truck and headed for the hospital with him. And we got to the hospital and started trying to get some help for him.
Q Now, when you came there at first, Mrs. Barker (the injured boy’s grandmother) was crushing the ice, and you were taking it out to your pickup?
A Right.
Q somebody came up during the process of the crushing of the ice. . . .
A The man wanted some shrimp . ., and she (the boy’s grandmother) stepped inside to show him the shrimp while my ice was finishing crushing. And then my ice finished, I picked it up and turned around and loaded it, and that’s when I heard him scream.
Q . When you would pull your tub out, you would wait until all the ice had crushed?
A Yes, sir.
Q So there wasn’t any ice falling down on the ground or coming through there or anything?
A No, sir. The ice had already quit grinding.
Q . When you reached up and you say you pulled the wire, you yanked it out of the wall?
A Right.
Q And that stopped the machine, of course.
A Yes, sir.
Q And did that just appear to release his arm?
A It seemed like it threw him out of it instead of just dropping him. .
Q Now, you said that the ice that was in the machine had finished crushing and you picked up the tub and all?
A Yes.
Q And, of course, the motor kept running. Was there any more ice to be crushed? Is that the reason it was left running, or did you leave that to Mrs. Barker to turn off, or who would have unplugged it?
A I would have unplugged it, but you had to step up on this ramp to unplug it without just yanking it out of the wall ....

It was undisputed that Bateman Foundry manufactured the ice crushing machine and that Bateman Foundry sold its machines without any “on-off” switches. There is some evidence from which a jury could conclude that this was negligence which was a proximate cause of the occurrence. A trial court cannot refuse to submit an issue, and to secure findings on such issue, even if the evidence might be insufficient to support a judgment based upon such issue. Burke Wiley, Inc. v. Lenderman, supra. There is also evidence that plaintiffs suffered damage because of pain, suffering, loss of earning capacity and disfigurement.

The other points of error are not reached in view of our ruling on the first two points of error.

The judgment is reversed, and the cause is remanded.

RALEIGH BROWN, Justice,

dissenting.

I dissent because there is no evidence to support a finding of proximate cause in response to Special Issue No. 6. Without such evidence, Special Issue No. 5 becomes immaterial and the jury’s failure to answer same is of no consequence.

The court in Texas & Pacific Railway Company v. McCleery, 418 S.W.2d 494 (Tex.1967) said:

The well established law of this State is that proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact or causal relation. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). . . .

In Missouri Pacific Railroad Company v. American Statesman, 552 S.W.2d 99 (Tex.1977), the court said:

Cause in fact as an element of proximate cause means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. . . .

In the instant case, an on or off switch would not have prevented the accident without the machine being turned off. The boy was injured because Barksdale failed to timely turn the machine off. To supply evidence of the element of cause in fact necessary to support the submission of the proximate cause Issue No. 6, the jury must indulge in drawing an inference on an inference.

The court in Schlumberger Well Surveying Corporation v. Nortex Oil and Gas Corporation, 435 S.W.2d 854 (Tex.1968) said:

[A]s has often been said by this court, a vital fact may not be established by piling inference upon inference, as would be required in this case. Rounsaville v. Bullard, 154 Tex. 260, 276 S.W. 791 (1955); Lobley v. Gilbert, 149 Tex. 493, 236 S.W.2d 121 (1951). To permit proof in this fashion, would violate the rule of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), which requires proof of any vital fact by evidence amounting to something more than a mere scintilla.

In the case at bar, the jury must infer that Barksdale would have turned the machine off had a switch been available. Additionally, the jury must infer that if the switch was conveniently located, Barksdale would have turned the machine off before the lapse of the “three seconds” from the time he removed his ice and “the child screamed.”

I do not agree with the majority.


author: HALL, Justice.

text:
    DIETZ MEMORIAL COMPANY, Appellant, v. TEXAS STEEL BUILDING COMPANY, Appellee.
    No. 5943.
    Court of Civil Appeals of Texas, Waco.
    March 8, 1979.
    Rehearing Denied March 29, 1979.

      John B. McNamara, McNamara & McNamara, Waco, for appellant.
    Fred Horner and Vance Dunnam, Dun-nam, Dunnam & Dunnam, Waco, for appel-lee.
   HALL, Justice.

Plaintiff-appellee Texas Steel Building Company and defendant-appellant Dietz Memorial Company entered into a written contract under which plaintiff agreed to provide the material and labor and make certain repairs and improvements to defendant’s metal building. Plaintiff was required among other duties to “furnish and install white acoustical spray insulation to the entire roof, walls, and all red iron, except crane beams, rails and columns, of [defendant’s] plant building to a minimum thickness of ½-inch throughout the job” and to “clean and wash down all plastic panel skylights in building.” The total contract price was $14,266.00. Plaintiff performed under the contract. Defendant paid $2,926.00, but refused to make further payment. Plaintiff brought this suit for the balance of $11,340.00, alleging it had performed its obligations under the contract. Plaintiff also pleaded for reasonable attorneys’ fees.

Defendant answered with a general denial, a special denial, and a counterclaim, alleging that plaintiff had subcontracted the insulation work and the skylight cleaning job to E. O. Wood Company; that the work performed by the subcontractor was not done in a good and workmanlike manner and was defective; that the installed insulation deviated from the contract in many pleaded particulars including that it was loosely applied and did not adhere firmly enough to the building to prevent it from falling off the roof, walls, and red iron, and from being knocked off upon any reasonable contact; and that the skylights were not cleaned and washed down in accordance with the contract. Defendant alleged that proper correction of the deficiencies and defects in the work performed by plaintiff and its subcontractor would necessitate removal of the existing insulation, cleaning of the surfaces, application of a base coat of adhesive, and then reapplication of the insulation; and that the cost of such work would be $18,886.62. Defendant prayed for the recovery of $7,546.62 (the difference between the cost of the asserted remedial work and the balance due on the contract), and for reasonable attorneys’ fees.

Plaintiff answered defendant’s counterclaim with a general denial. Plaintiff also impleaded its subcontractor E. O. Wood Company and, alleging an indemnity agreement between them, prayed for judgment against the subcontractor for any recovery by defendant against plaintiff.

The case was tried to a jury. Defendant conceded during the trial it was not complaining about the cleaning of the skylights. Excepting proof on attorneys’ fees, the single issue developed on the trial was whether the insulation work was properly performed by plaintiff’s subcontractor. Plaintiff’s witnesses testified that the work was done in a good and workmanlike manner; defendant’s witnesses testified that it was not.

During the trial plaintiff asked two of its witnesses whether the contract was “substantially completed.” Defendant objected to the question on both occasions on the ground that evidence of substantial performance was not supported by the pleadings because plaintiff had alleged and sued only on a completed contract. The objections were overruled, and both witnesses answered the questions favorably to plaintiff. After the parties had rested their proof, but before the case went to the jury, plaintiff was permitted over defendant’s objection to file a trial amendment pleading substantial performance.

Related to this appeal, the jury made the following answers to the special issues:

No.l: Failed to find that plaintiff “fully performed its obligations under the contract in question in a good and workmanlike manner.”
No. 2: Found that plaintiff “substantially performed its obligations under the contract.”
No. 5: Found that “the reasonable cost of remedying [the] defects or omissions in [plaintiff’s] material and workmanship in performing [the] contract” was “NONE.”

Judgment was rendered on the verdict awarding plaintiff $11,340.00 (the unpaid balance on the full contract price), and prejudgment interest on that amount. Apparently upon a stipulation not of record, plaintiff was also awarded attorneys’ fees.

Defendant appeals. We affirm the judgment.

Defendant’s two grounds for reversal are (1) that the court erred in permitting plaintiff to file the trial amendment, pleading substantial performance, on the last day of the trial; and (2) that the court erred “in awarding judgment for plaintiff for the full balance due on the contract, when the jury found that the contract had only been substantially performed.”

A party suing upon a completed building or construction contract may recover upon proof of only substantial performance of the contract. Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208, 213 (1891); Atkinson v. Jackson Bros., 270 S.W. 848, 851 (Tex.Com.App. 1925, holding approved); Pacific Coast Engineering Co. v. Trinity Const. Co., 410 S.W.2d 797, 799 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.); 10 Tex.Jur.2d 25, Building Contracts § 21. It follows, therefore, that the court did not err in permitting plaintiff to expressly plead substantial performance by trial amendment after the proof had ended. The pleading was unnecessary and no harm could have been caused defendant by it. See, especially, Pacific Coast Engineering Co. v. Trinity Const. Co., supra.

Additionally, the allowance or not of a trial amendment is addressed to the sound discretion of the trial court; and the question of whether the court’s ruling was an abuse of discretion must be determined from a review of the entire record of the case. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948); Aubin v. Hunsucker, 481 S.W.2d 952, 955 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.). In our case, it was plaintiff’s position before the jury that the insulation work was fully performed in a proper and workmanlike manner. It was defendant’s position that the work was poorly done; and that the insulation applied by plaintiff’s subcontractor would have to be completely removed and new insulation installed at the cost of $18,-887.62. When the parties ended their proof, they had established in great detail their respective assertions of what had been done and what had not been done by the subcontractor on the insulation job. Excluding the previously mentioned answers to plaintiff’s witnesses permitted over defendant’s objection, the evidence adduced by the parties would have supported findings of (1) full and proper performance of the insulation work or (2) wholly improper performance; and (3) stages of completion between those extremes, including substantial performance. With the record in that state, we hold the court did not abuse its discretion in permitting the trial amendment.

Where there is substantial performance, the measure of the contractor’s recovery is the contract price less the reasonable cost of remedying the defects or omissions in such way as to make the work conform to the contract. Pacific Coast Engineering Co. v. Trinity Const. Co., supra, at 410 S.W.2d 799. “The principle underlying cases of this general character is that the party in default can never gain by his default, and the other party can never be permitted to lose by it. Hence where a building contractor has substantially performed his contract, he ordinarily may recover the contract price, less a deduction to reimburse or compensate the owner for the contractor’s failure fully to complete his contract. . . . The doctrine of substantial performance necessarily includes compensation [to the owner] for all defects which are not so slight and insignificant as to be safely overlooked on the principle of de minimis non curet lex.” Atkinson v. Jackson Bros., supra, at 270 S.W. 851.

In our case the jury found that plaintiff substantially performed the insulation work, and that there would be no cost to remedy the defects or omissions in it. Defendant argues that the jury’s answer of “none” to the cost of the remedial work is not supported by any evidence. We overrule that contention.

Defendant’s building houses an industrial plant for the manufacture of cemetery monuments from “gigantic pieces of marble.” Large cranes, heavy saws and other heavy equipment are located in the building for that purpose. The building is steel-framed with sheet-iron on the sides and roof. It is 240 feet long and 80 feet wide; the sides are 24 feet high; and the roof is gabled. The manufacture of the monuments generates a tremendous amount of dust which settles to at least one-half inch thickness in some areas of the plant. The dust also settles on the sides of the building.

To avoid interfering with defendant’s business, plaintiff agreed to and did apply the insulation on weekends. It was necessary for plaintiff to work over and around the equipment in the plant. Plaintiff applied approximately 34,000 square feet of insulation to the walls and ceiling. Plaintiff’s witness explained the method of application in these words: “It’s fed into a hopper. It’s much like the insulation machines that blow the loose fill into attics. It’s blown with air power and at the end of the hose, there’s an orifice around the end of the hose with nozzles and this is fed by a glue line and the glue is pumped at a pressure of approximately 100 pounds per square inch. The glue and the material meet in the air and then when it hits the surface its pointed at, it sticks.” Proper application entails a normal 30% “over-spray” of the material which falls to the floor.

There was much conflict in the evidence relating to the quality of the insulation job. Defendant’s proof showed spots and cracks in the insulation in the ceiling, partially loose strips, bare areas on the walls, uncleaned side windows, ceiling air vents allegedly clogged with insulation material, overspray left on the machinery and other equipment, insulation sprayed over electrical wall sockets, and other asserted defects and omissions to establish noncompliance with the contract. Defendant’s witnesses reasoned that the defects and omissions were caused by the subcontractor’s failure to use the right spray machine and the right adhesive mixture, and by poor overall workmanship. Plaintiff’s proof showed a proper, standard job, done in a good and workmanlike manner under difficult circumstances, which permitted small spots here and there; that the ceiling cracks were normal and expected and were caused by expansion and contraction of the roof from daily heating and cooling and cannot be prevented; that birds (“quite a few in number” according to defendant’s executive officer) entered defendant’s plant and pulled at and tore the insulation loose for making nests; that bare areas on the wall, for several particularized reasons, were caused by defendant; that the cleaning of the side windows (which was not part of the written agreement) was inconsequential but that plaintiff had nevertheless offered to pay for the cleaning if defendant would have it done; that defendant’s first complaint about the ceiling vents was made at the time of trial, and that the vents were in fact working; that it was defendant’s duty to protect its equipment from the over-spray; that, in effect, all the conditions complained about by defendant which related to the actual application of the insulation were normal under the circumstances and did not detract from a good and workmanlike job; and that defendant’s complaints were hypercritical.

It was the jury’s duty and prerogative to sort out the testimony it believed most credible, and determine the weight to be given to all the evidence. Additionally, there was a jury view in this case without objection by the parties. Of course, the record does not show what was learned by the jurors on the visit to defendant’s plant, but we must assume it supported the verdict.

It is settled that in determining a “no evidence” complaint we must consider only the evidence and inferences which support the finding. Lucas v. Hartford Accident And Indemnity Company, 552 S.W.2d 796, 797 (Tex.1977). If there is any factual theory under the conflicting evidence and inferences upon which the finding can be based the complaint must be overruled. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951).

The evidence shows that the electrical outlet boxes located in the area where the insulation work was done were sprayed and covered with the insulation. Each box also contained a light switch. Plaintiff’s witness Jordan Pfumtmer testified that he “wouldn’t classify that as good workmanship,” that “normally you would put some tape across that.” However, he also testified that failure to mask the boxes “does not affect the quality of the insulation value of the job at all, it simply means it takes a few minutes to clean off what should have been protected to start with. It doesn’t hurt anything. It doesn’t hurt a thing in the world.”

As we have said, the various contentions of the parties were developed in detail on the trial. Additionally, we must assume that during the visit to defendant’s premises the jury viewed and considered every alleged defect and omission raised by defendant. We hold that under the evidence the jury could reasonably have determined that all the insulation work except the spraying of insulation on the electric outlet boxes was done by plaintiff in a good and workmanlike manner; and that the cleaning of the outlet boxes was an inconsequential “no cost” item. Those determinations support the jury’s verdict, including the answer of “none” to special issue number 5. See, Beck v. Lawler, 422 S.W.2d 816, 818 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

Defendant asserts that plaintiff’s witness Pfumtmer testified there were defects and omissions in the original insulation work which needed correction, and that the cost of correction would be at least $298.00.

Plaintiff completed the job in April, 1977. The trial was held in May, 1978. Pfumtmer testified that at the time of trial he found no more than 100 square feet of the insulation which needed repairing, and that the cost for labor and material for the work would total $298.00. However, we agree with plaintiff that the jury was reasonably entitled to believe the witness intended that testimony as responsive to an initial question asking for the cost of repairs “to make the building and the insulation job as good as it was when it was completed.” Throughout his testimony (excepting his testimony about the electrical outlet boxes set forth above, which he considered inconsequential) the witness steadfastly maintained that all the insulation work was originally completed in a good and workmanlike manner.

Defendant’s points and contentions are overruled. The judgment is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    O J & C COMPANY, Appellant, v. GENERAL HOSPITAL LEASING, INC. d/b/a Manufacturers Industrial Leasing, Appellee.
    No. B2012.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 14, 1979.
    Edwin Lamm, III; Law Offices of Smith & Lamm, Houston, for appellant.
    Gerald E. Hopkins, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

In its suit for rents due and to accrue in the future under a contract to lease a computer, appellee received a summary judgment for the rent due for the entire term of the lease, plus the residual value of the leased equipment and attorney’s fees, minus credits for rent paid and for a security deposit.

The undisputed facts are that appellant, O J & C Company (appellant or lessee), desiring the use of a Nixdorf Model 840/125 Accounting System, which consists of a computer and the accompanying software package, arranged for appellee, General Hospital Leasing, Inc., d.b.a. Manufacturers Industrial Leasing (appellee or lessor), to purchase the computer from the manufacturer and in turn to lease it to appellant. Under the lease the term was to be five years with a total rent price payable in sixty equal monthly installments. At the end of the term the lease was renewable on an annual basis at the option of the lessee, but there was no obligation or option to purchase. A security deposit of $2,760.00 was required in addition to a monthly installment in advance. Payments were made regularly under the lease from its execution on July 17, 1974, until May 1, 1978, when appellant, contending the equipment was defective, ceased payments and demanded that appellee repossess the equipment. Appellee, purporting to exercise an option under the lease, did not repossess but brought suit for accrued as well as unac-crued rent payments, for the “residual value” of the equipment and for attorney’s fees. In response to appellee’s motion for summary judgment, the appellant argued that the warranty provision was unconscionable and that the damages sought in the appellee’s suit amounted to a forfeiture on the grounds that O J & C Company was given no credit for the “salvage value” of the system.

On appeal, appellant first contends that the trial court erroneously deprived appellant of the opportunity to show the “commercial setting, purpose and effect” of the contract, pursuant to the claim of un-conscionability as provided in section 2.302 of the Texas Business and Commerce Code, the Texas codification of the Uniform Commercial Code. Section 2.302 does require the court to allow a reasonable opportunity for the presentation of evidence of the “commercial setting, purpose and effect” when a claim or allegation of unconsciona-bility is made. Tex.Bus. & Comm.Code Ann. § 2.302 (1968). However, the record does not reflect that appellant was deprived of such opportunity, nor does the record reflect that the lease in question is governed by article 2, which is expressly limited in scope to sales. Tex.Bus. & Comm. Code Ann. § 2.102 and § 2.106 (1968). Similar leases have been held not to constitute sales within the meaning of article 2. Three Bears, Inc. v. Transamerican Leasing Company, 574 S.W.2d 193 (Tex.Civ.App.—El Paso 1978, no writ history). Nor does such a lease agreement constitute a conditional sales agreement for the purposes of the usury statutes. Southwest Park Outpatient Surgery v. Chandler, 572 S.W.2d 53 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ history). Since there was no sale involved, this lease is not subject to article 2 and there was no violation of the mandates of section 2.302.

Appellant next maintains that it was a forfeiture or a penalty to allow recovery of the “residual value” of the computer absent a provision in the lease to allow such recovery. As noted above, the lease had an initial term of five years and does not contain any obligation or option for appellant to purchase the system at the end of the term. On the contrary, the lease provides:

DEFAULT. If Lessee fails to pay any rent or other amounts herein provided within ten (10) days after the same is due and payable, or if Lessee fails to perform any other provision hereof within ten (10) days after Lessor shall have demanded in writing performance thereof, or if any proceeding in bankruptcy, receivership, or insolvency shall be commenced by or against Lessee or its property, or if Lessee makes any assignment for the benefit of creditors, Lessor shall have the right, but shall not be obligated, to exercise any one or more of the following remedies: (a) to sue for and recover all rents and other amounts then due or thereafter accruing under this lease; (b) to take possession of any or all of the equipment wherever it may be located without demand or notice . (c) to sell any or all of the equipment at public or private sale . (d) to terminate this lease as to any or all items of equipment; (e) in the event Lessor elects to terminate this lease as to any or all items of equipment, to recover from Lessee as to each item subject to said termination, the worth at the time of such termination of the excess, if any, of the amount of rent reserved herein for said item for the balance of the term hereof over the then reasonable rental value of said item for the same period of time; (f) to pursue any other remedy now or hereafter existing at law or in equity. .

(emphasis added). Thus it was error for the trial court to charge appellant with the “residual value” of the computer and to transfer ownership to the appellant. See, American Lease Plan v. Ben-Kro Corporation, 508 S.W.2d 937, 942 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.). In American Lease Plan, the court construing a default clause essentially the same as the one involved in the present case, stated:

The lease provides that the lessor may sue for all rentals “then or thereafter accruing”; take possession of the property without demand or notice and without court order or other process; sell the equipment at public or private sale for cash or credit; terminate the lease, and/or to pursue any other remedy at law or in equity.

Id. at 943. Although under the lease the appellee at its option could decline to repossess the equipment and sue for the rentals then due or thereafter accruing, the lease does not obligate the appellant to purchase the equipment. We therefore modify the summary judgment to strike that portion awarding appellee the “residual value” of the equipment and passing ownership of the equipment to the appellant. As modified, the judgment for the appellee in the amount of $9,096.00 plus $736.00, attorney’s fees is affirmed and costs of appeal are apportioned equally between the parties.

Modified and affirmed.

      . Appellant, for the first time, urges on appeal that it was error to accelerate the rent payments absent a lease provision expressly allowing acceleration, and also contends that such a provision, if it existed, would be void as a penalty. Appellant has waived this point by failing to bring it to the attention of the trial court by “written motion, answer or other response” before summary judgment was entered. Tex.R.Civ.P. 166-A. As a result, we express no opinion on that issue.

      . The question whether appellee has abandoned the equipment is not before this court.