author: ROBINSON, Justice.

text:
    Ruby WILLMAN, Appellant, v. TEXACO, INC., Appellee.
    No. 8591.
    Court of Civil Appeals of Texas, Amarillo.
    March 29, 1976.
    Rehearing Denied April 19, 1976.

      Bowers & Cotten, Claude W. Pete Har-land, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, J. Orville Smith, Lubbock, for appellee.
   ROBINSON, Justice.

Plaintiff Ruby Willman filed suit for personal injuries, which she alleged occurred, when she was struck by a falling pipe at the Richland Hills Texaco Station. Defendants are Claude Faubus, Texaco, Inc., and Sam E. Fox. Faubus was the operator leasing the station from Texaco, Inc. Fox was one of two owners of the land who leased the building and land to Texaco, Inc., and was Texaco’s consignee. Fox also had an agreement with Faubus concerning the operation of the station. Texaco, Inc. filed a motion for summary judgment contending that Faubus was an independent contractor. Plaintiff answered contending that the written agreements between Texaco, Inc. and Faubus were a sham and subterfuge, and that Texaco controlled the details of Faubus’ operations in such a way as to create a master-servant relationship and to make Texaco, Inc. liable for the negligence of Faubus and his employees. The trial court granted Texaco, Inc.’s motion for summary judgment and severed the cause of action against Texaco, Inc. Plaintiff appeals from a judgment that she take nothing from Texaco, Inc. Affirmed.

In a summary judgment proceeding, the question is not whether the summary judgment proof raises fact issues with reference to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972).

In the case before us, the burden is on Texaco, Inc., to establish that there is no fact issue that it had a master-servant relationship with Claude Faubus d/b/a Rich-land Hills Texaco Station.

The written agreements between Texaco, Inc. and Faubus are substantially the same as those which the Supreme Court considered in Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632 (1943). The written instruments were the “Lease Contract,” “Letter Modifying Rental Clause,” and a “Sales Contract.” In Wheat, the Supreme Court affirmed an instructed verdict for Texas Company and held that the contract as evidenced by those written agreements created the relation of landlord and tenant, and not the relation of master and servant.

Nevertheless, the form of the written agreement will not prevent the existence of a master-servant relationship if such agreement is a mere sham, cloak, or subterfuge designed to conceal the true legal relationship between the parties. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964). Plaintiff, Ruby Willman, contends that the lease between Texaco and Faubus was a mere sham or subterfuge and that the Texaco-Faubus relationship was conducted by the terms of the contract between Faubus and Fox.

The summary judgment evidence shows that, in anticipation of his obtaining the Texaco lease, Faubus made an agreement with the consignee, Fox, whereby Fox agreed to perform certain of Faubus’ obligations under the Texaco-Faubus lease and Fox undertook specified obligations to Fau-bus. Fox agreed to pay the utilities on the station and Faubus’ rent to Texaco and to furnish gasoline and stocks of oil, filters, and batteries to Faubus on consignment. Faubus agreed to pay Fox the normal retail price less 4½$ per gallon for the gasoline which Faubus sold, with Fox to receive the difference between the price Faubus paid and the price charged by Texaco. Plaintiff alleged that Faubus agreed with Fox to keep the station open a certain number of hours, to keep the premises and restrooms clean, to attend a two-week training school offered and paid for by Texaco, and to attempt to keep employees in Texaco uniforms.

Fox testified that Texaco, Inc. knew of his agreement with Faubus. As a Texaco, Inc. consignee, Fox sells and distributes Texaco products on a commission basis with title to all Texaco products remaining in Texaco, Inc. until such time as the product is sold by Fox. Fox sometimes extended more credit than Texaco authorized. When he did so, Texaco charged him and deducted the charges from his check. Texaco products are sold to service station retailers on a cash on delivery basis. If Fox did not collect for a service station delivery, then he was responsible for payment. The credit that Fox extended to Faubus was his and not Texaco’s. He testified that to his knowledge, Texaco did not tell Faubus how to run the station or inspect it and it did not tell him to tell Faubus how to run it. He said that he did not exercise any supervision over Faubus. He stated that Faubus furnished all the employees, maintained the station, and ran it.

Faubus testified that no representative from Texaco called on him, that neither Texaco nor Fox exercised control over his business, and that the details of operating the station were his. He had no credit arrangement with Texaco. His credit arrangement was with Fox.

The summary judgment evidence includes the documents evidencing the written agreement between Texaco and Faubus, the affidavit of Texaco’s district sales manager, and the deposition testimony of Claude Faubus and Sam Fox. As heretofore stated, the written agreements do not evidence a master-servant relationship. The Texaco sales manager, Faubus, and Fox all expressly deny that Texaco exercised any actual control of the details or manner in which Faubus operated the station. The testimony of Faubus was adverse to his own interest. The testimony of Fox was clear, direct, and positive, and we find no circumstance in the evidence tending to discredit his testimony. We find no summary judgment evidence that Texaco exercised actual control of the details of operation or that Faubus’ agreement with Fox modified the Texaco-Faubus agreement.

We conclude that the summary judgment evidence shows that the relationship between Texaco, Inc. and Faubus was that of lessor-lessee and that there is no genuine issue of fact to the effect that the relationship was that of master and servant.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Bill Joe BOREN, Appellant, v. BANK OF THE WEST, Appellee.
    No. 8657.
    Court of Civil Appeals of Texas, Amarillo.
    March 29, 1976.

      Griffith & Brister, Thomas J. Griffith, Lubbock, for appellant.
    McClendon, Richards & Campbell, Pat Campbell, Lubbock, for appellee.
   ROBINSON, Justice.

Defendant appeals from an order that he deliver certain automobiles to plaintiff pending trial but further ordering that defendant may keep the automobiles if he timely posts bond. Plaintiff moved to dismiss the appeal for lack of jurisdiction. Plaintiff’s motion to dismiss the appeal is denied. The trial court order is reversed and the injunction ordered dissolved.

Plaintiff Bank of the West, as assignee of certain automobile lease contracts, sued Bill Joe Boren for a sum which it alleges was due on the contracts. The automobiles were in the possession of defendant Boren.

Plaintiff filed an application and affidavit for sequestration on August 29, 1975. Defendant moved to dismiss the application on the grounds that the Texas Sequestration Statute, Tex.Rev.Civ.Stat.Ann. art. 6840 (1960), had been declared unconstitutional in Garcia v. Krausse, 380 F.Supp. 1254 (S.D.Tex.1974). On September 1,1975, between the time plaintiff filed the application for sequestration and the hearing on the application, a new sequestration statute, Tex.Rev.Civ.Stat.Ann. art. 6840 (Supp. 1976), Tex.Laws, 1975, ch. 470, § 1, at 1246, became effective. The trial court granted the application to dismiss the sequestration.

After the dismissal of the sequestration, plaintiff filed its motion for temporary injunction asking for delivery of the leased automobiles to plaintiff pending trial on the merits. A hearing was held on October 17, 1975. On October 20, 1975, the trial court rendered an order entitled “Order of Temporary Injunction” ordering defendant Boren to deliver up possession of the three automobiles in question. The order further provided that if defendant should post bond in an amount specified for each automobile on or before 5 p.m. on October 20, 1975, then defendant might keep the automobile or automobiles on which bond was posted. The order contained the following language:

Should said bonds not be posted by said time, then Writ of Temporary Injunction shall issue as aforesaid and the Clerk is so directed.

There is nothing in the record to show and no contention is made that any bond in any amount was filed on or before October 20, 1975, at 5 p.m.

Defendant contends on appeal that the order is void because no bond was required of plaintiff as applicant for the temporary injunction, that the order does not recite reasons why the injunction was granted, that legal remedies were available to plaintiff, that the temporary injunction disrupted the status quo and disturbed the last peaceable possession of the automobiles, and that bond was required of defendant although there were no pleadings to support such relief.

Plaintiff contends in its motion to dismiss the appeal for lack of jurisdiction that the order appealed from is not an injunction but is a non-appealable interlocutory order.

We overrule the motion to dismiss. The trial court’s order in this case, which required defendant to deliver the automobiles to plaintiff or, in lieu of that, post bonds in approximately the amounts of plaintiff’s alleged damages, was a temporary mandatory injunction. See Roosth v. Roosth, 181 S.W.2d 974 (Tex.Civ.App. — Texarkana 1944, no writ), where an order requiring the deposit of certain funds in the bank, which could only be withdrawn on specific court order, was held to be a temporary injunction.

Even if plaintiff were correct in its contention that there was no injunction unless defendant failed to post bond, the injunction order, by its own terms, became effective when bond was not deposited on or before October 20, 1975 at 5 p.m.

The procedural requirements for a temporary injunction are summarized in Texas Department of Public Safety v. Morris, 411 S.W.2d 620, 623 (Tex.Civ.App.— Houston 1967, no writ). The order must set forth the reasons an injunction is granted. Rule 683, Texas Rules of Civil Procedure. This requirement is mandatory. State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). Bond is required of the applicant, and the order must state the amount of the bond, which must be filed by the applicant. Rule 684, T.R.C.P. The failure of the trial court to fix the amount of the bond, or the failure of the applicant to file the bond renders the injunction void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956). In the case before us no bond was required of the applicant-plaintiff and no reasons for the issuance of the injunction were given in the order. The order for temporary injunction is, thus, void ab initio.

Further, the trial court may not grant relief not requested in plaintiff’s pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942). McCan v. Missouri Pacific Railroad Company, 526 S.W.2d 754, 759 (Tex.Civ.App. — Corpus Christi 1975, no writ). Defendant correctly contends that since the plaintiff neither pleaded nor prayed for a bond, the trial court erred in requiring a bond of defendant.

Our holdings on the foregoing points are dispositive of the case on appeal. We do not reach appellant-defendant’s other points of error.

Appellee-plaintiff’s motion to dismiss the appeal is denied. The order of the trial court granting a temporary injunction is reversed, and the injunction is dissolved.


author: OSBORN, Justice. PRESLAR, Chief Justice

text:
    James N. SEWARD, Appellant, v. Cecil A. ROBINSON, M.D., Appellee.
    No. 6493.
    Court of Civil Appeals of Texas, El Paso.
    March 31, 1976.
    Rehearing Denied April 20, 1976.

      James D. Cunningham, Odessa, for appellant.
    Finley & Scogin, Kermit, Shafer, Gilli-land, Davis, Bunton & McCollum, Inc., W. 0. Shafer, James M. O’Leary, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This is a medical malpractice suit involving the question of whether or not proceeding to judgment for medical expenses only, under the Workmen’s Compensation Act, will toll the statute of limitations against a third party treating physician, where the claimant has previously been paid all compensation payments which he was entitled to receive under the law. The trial Court sustained a plea of limitations and entered summary judgment for the third party physician. We affirm.

The Appellant sustained an accidental injury in the course of his employment on November 19, 1969. On December 2, 1969, Appellee performed back surgery on Appellant. In February, 1972, the compensation carrier for Mr. Seward’s employer paid him $18,226.27 as compensation for total and permanent disability, although there was no final award nor judgment for compensation. Mr. Seward subsequently filed a claim for medical benefits and, following an appeal from the award of the Industrial Accident Board, a District Court judgment was entered on April 4,1973, awarding him $10,447.30 for past medical benefits. This malpractice case was filed on April 16,1974, nearly 26 months after payment of compensation, but only 12 months after the judgment for medical benefits. The trial Court sustained Appellee’s contention that the suit was barred by the two-year Statute of Limitations.

Appellant presents two similar points of error urging that limitations on the cause of action against the doctor did not begin to run until the entry of judgment in the claim for medical benefits on April 4, 1973, and that suit was filed within two years from that date.

None of the facts are in dispute. Mr. Seward was paid in full for his incapacity from the back injury by a single check from the compensation carrier in February, 1972. Apparently, no claim was filed with the Industrial Accident Board and no Compromise Settlement Agreement was ever filed or an award made for compensation benefits. The subsequent claim, suit and judgment did not provide for compensation benefits, but only dealt with past medical expenses.

Appellee contends that limitations commenced to run with the payment of total compensation benefits by the compensation carrier in February, 1972. We agree. Prior to September 1, 1973, Article 8307, Sec. 6a, Tex.Rev.Civ.Stat.Ann., provided in part as follows:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employe may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. * * *”

Thus, the injured employee was given an election to either sue the third party whose negligence caused his injury or to make a claim for workmen’s compensation benefits. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865 (1952). If the third party suit was pursued to judgment, it constituted an election of rights which would bar a subsequent compensation claim. Texas Employers Ins. Ass’n. v. Brandon, 126 Tex. 636, 89 S.W.2d 982 (1936); Texas Employers’ Ins. Ass’n v. Fish, 266 S.W.2d 435 (Tex.Civ.App. — Fort Worth 1954, writ ref’d n.r.e.); Miller v. D & H Rig Service, 497 S.W.2d 539 (Tex.Civ.App. — El Paso 1973, writ ref’d); Election of Remedies Under the Texas Workmen’s Compensation Act, 11 Baylor L.Rev. 193 (1959). And where the compensation claim was pursued first, there was no election and limitations did not begin to run on the third party claim until the compensation claim was concluded, if it be successful. Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972); Yeary v. Hinojosa, 307 S.W.2d 325 (Tex.Civ.App. —Houston 1957, writ ref’d n. r. e.). In the Campbell case, supra, the court said:

“ * * * limitation runs against * * the employee in third-party actions authorized by Section 6a from the date of the payment of the award of the Industrial Accident Board or the entry of final judgment against the carrier. * * ⅜”

The Court went on the urge that the Legislature consider an amendment of Section 6a so as to allow the third party’s suit without a waiver of compensation benefits. Also see Fort Worth Lloyds v. Haygood, supra, Dissenting Opinion by Justice Wilson. Such amendment was passed and became effective September 1, 1973.

In a subsequent case involving the interpretation of Section 6a prior to the amendment, the Texas Supreme Court, in Watson v. Glens Falls Insurance Company, 505 S.W.2d 793 (Tex.1974), held that an election to pursue a third party did not constitute an election which would cut off future medical benefits under the Workmen’s Compensation Act. Thus, the Court clearly distinguished between a claim, or suit for compensation, and one for medical benefits insofar as the effect of Section 6a and the election of remedies is concerned.

Although there was no Board award or final judgment to establish liability for compensation to Mr. Seward, it is undisputed that he was paid $18,226.27, and in his deposition he acknowledged that he was paid for total and permanent disability. Prior to the 1973 amendment to Section 6a, limitations began to run at the time the compensation claim was disposed of, for only then did the carrier become subrogated and the rights of the employee and carrier become established with regard to the proceeds of any third party settlement or judgment.

In Texas Employers’ Ins. Ass’n. v. Brandon, supra, the Court held that the subrogation right matured when “the insurer has paid or assumed to pay compensation.” Similar language is found in Texas Employers’ Ins. Ass’n. v. Texas & P. Ry. Co., 129 S.W.2d 746 (Tex.Civ.App. — Eastland 1939, writ dism’d jdgmt cor.), where the Court concluded that, “the cause of action against the third party accrues when compensation, or judgment, is paid or assumed by the carrier.” On motion for rehearing in that case, the Court said:

“ * * * Plainly, we think, limitations could not begin to run against either the insurance carrier on the one hand, or the employee or beneficiary on the other, until the fact of the amount of payment or assumption of the payment of compensation existed.”

Very similar language appears in Thompson v. Graham, 318 S.W.2d 102 (Tex.Civ. App. — Eastland 1958, writ ref’d n.r.e.). where the Court stated:

“The authorities hold that such a cause of action accrues — and limitation starts to run against it — when compensation is paid or liability therefor is assumed by the insurer. * * *”

We conclude that the judgment for medical benefits did not affect the issue of limitations where all compensation which the claimant might seek had been paid and the carrier thereby became subrogated, and the rights of both the employee and carrier to pursue a third party claim were fixed by such payment.

Appellant urges that such a result starts limitations running on the third party claim for medical benefits made by the carrier before such payments are ever made. Of course, that is the result under the statute after the 1973 Amendment, not only as to medical payments, but as to compensation benefits also. Had either the carrier or employee sued within two years after the payment in February, 1972, an allegation could have been made for past and future medical expenses so as to protect the carrier’s subrogation rights for such payments as were made after the compensation claim was paid and limitations began to run.

In oral argument, Appellee also raised an interesting question of whether or not limitations should not begin to run in a malpractice case from the date of the alleged malpractice, because the suit in such a case is not a true third party suit, since the doctor did not cause the on-the-job injury for which compensation is payable and, having not caused the initial injury, he cannot be liable for damages resulting therefrom, but only for damages arising from any aggravation resulting from his malpractice. 63 Tex.Jur.2d, Workmen’s Compensation, § 232; also see Pedigo & Pedigo v. Croom, 37 S.W.2d 1074 (Tex.Civ.App. — Eastland 1931, writ ref’d); Larson’s Workmen’s Compensation Law, Vol. 2A, Sec. 72.60 et seq. (1976). In view of the conclusion that we have heretofore reached, and since the 1973 Amendment of Section 6a has effectively eliminated the problem in future cases, we need not pass upon that question in this case.

The judgment of the trial Court is affirmed.

PRESLAR, Chief Justice

(concurring).

I concur in the affirmance of the trial Court judgment, but I would affirm on the additional theory discussed in the final paragraph of the majority opinion.

In my view, Article 8307, Sec. 6a, has no application to this malpractice suit for something which happened in the course of treatment after the injury. The physician had nothing to do with the injury for which compensation was sought. Clearly, Sec. 6a of Article 8307 is concerned only with that injury. It provides:

“Sec. 6a. Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber * * *.” (emphasis added)

The section then goes on to provide the options and other matters as discussed in the majority opinion, but all relating only to “the injury for which compensation is payable.” The physician in this case was not sued for causing that injury and that provision of the law has no application to this suit. The quoted portion of Sec. 6a is unchanged by the 1973 Amendment. I would hold that Sec. 6a has no application to this suit; therefore it does not alter the running of the two-year statute of limitations, Article 5526, Tex.Rev.Civ.Stat.Ann., which controls this case.


author: STEPHENSON, Justice.

text:
    Jimmie BOUNDS, Appellant, v. PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 7796.
    Court of Civil Appeals of Texas, Beaumont.
    April 1, 1976.
    Robert Grossheim, Beaumont, for appellant.
    Jim Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Act. Claimant, Jimmie Bounds, appeals from an instructed verdict for Pacific Employers Insurance Company, at the close of his evidence.

The judgment of the trial court shows the instructed verdict was based solely on the failure by claimant to show good cause for failure to file his claim for compensation within six months. The evidence shows the accident made the basis of this claim occurred December 7, 1972. The claim was filed with the Industrial Accident Board in March 1974.

The law is well settled in this state that failure to file a claim within six months from the date of injury will bar recovery unless there is a showing of good cause, which must be continuous and exist up to the date the claim is filed. Texas Casualty-Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.Sup.1965). Good cause for delay exists only if an ordinary prudent person under the same or similar circumstances would have delayed filing a claim. Moronko v. Consolidated Mutual Insurance Co., 435 S.W.2d 846 (Tex.Sup.1968).

The good cause relied upon by claimant in the case before this court is that he did not believe his injury was serious or disabling. The uncontradicted evidence shows: Claimant received an injury to his upper back December 7, 1972, and was hospitalized. He was released from the hospital December 9, 1972, and released to return to work December. 10, 1972. He returned to work December 10, 1972, and continued to work through 1972 and 1973. When the claimant was asked why he did not file his claim for compensation before March 1974, he gave this answer:

“I didn’t know it was going to cause me any problems with my work. I assumed that it would be better. I’ve known people that were crippled and learned to walk again. I was one of them. I knew of many cases where if a person’s got enough determination they can get well, but I haven’t made it.”

The circumstances pertinent to this issue, generally are as follows: Claimant was working as a fitter-welder on .the day of his injury. He was working under an overhead crane when the whole rig came down in the middle of his back. He was knocked about twenty feet off the slab and was picked up on a stretcher and carried to the hospital. The pain felt like a ball of fire in his back. He stayed in the hospital three days during which time he was x-rayed and given pain pills. When released from the hospital, he went to the company doctor and asked to be allowed to return to work. The doctor released him to go back to work. At the time he hurt all over and took aspirin, anacin, and everything he could get his hands on. He had sharp burning pains in his upper back, neck, and arms. When that subsided, it left a dull throbbing pain that didn’t subside. He continued to work through December 1972 and into 1973 with problems and pain in his upper back and neck area. At times the pain was almost unbearable right after he picked up something heavy. He returned to see the company doctor in March of 1973 who examined him “but he didn’t tell me I was going to get well soon.” The doctor did not prescribe any treatment or medication and released him to return to work. He continued to work and to have the same problems “only they kept getting worse.” Claimant went to see his attorney in March of 1974 who sent him to a doctor and that’s when he filed this claim for compensation. He was still working for the same employer at the time this case was tried.

On cross-examination, this claimant testified: that he had been in constant pain since receiving this injury; that he had missed some work because of this accident and knew the pain was related to this accident. He made $9,681 in 1973, about $11,-000 in 1974, and about $6,000 the first half of 1975.

Under the facts of this case, we hold that the claimant did not prove that he had good cause for not filing his claim for compensation before March 1974, which was some fifteen months after the date of his injury. A reasonably prudent person under the same or similar circumstance would have done so. This claimant knew from the moment this accident occurred that his pain, suffering, and disability were caused by the accident in question. He knew that an eighty pound crane hit him in the middle of the back and knocked him twenty feet. He knew that he began to have pain in his back following the accident which continued until the time of this trial. He was never told by anyone that the pain he was suffering was not connected with his injury. He knew the problems in his back continued to get worse. In addition to all of this, there is no testimony in this record as to when this claimant decided that his injury was not trivial and that he would not get better. In other words, the record does not show affirmatively that claimant’s excuse for not filing continued to exist up to the date this claim was filed. The disposition of this case is supported by: Texas Employers Insurance Association v. Hubbard, 518 S.W.2d 529 (Tex.Sup.1974); Aetna Casualty & Surety Company v. Hughes, 497 S.W.2d 282 (Tex.Sup.1973); and Texas Employers’ Ins. Ass’n v. Portley, 153 Tex. 62, 263 S.W.2d 247 (1953).

AFFIRMED.


author: WALTER, Justice.

text:
    Jnettie Lou SEETON, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 4859.
    Court of Civil Appeals of Texas, Eastland.
    April 1, 1976.

      Charles L. Attaway, Attaway, Attaway & Attaway, Mesquite, for appellant.
    G. David Westfall, Bailey, Williams, Westfall & Henderson, Dallas, for appellee.
   WALTER, Justice.

In this Workmen’s Compensation case, Jnettie Lou Seeton recovered a judgment for $3,609.00 and plaintiff has appealed.

She contends the findings of the jury that she did not sustain any total incapacity following her injury of January 10, 1974, and that her period of partial incapacity would end August 1, 1975, and that she had an average weekly wage earning capacity of $86.08 during her period of partial incapacity were against the great weight and preponderance of the evidence.

In the process of stocking the dairy case, Mrs. Seeton attempted to place a case of eggs, holding fifteen dozen eggs, on a shelf above her head and sustained an injury to her back. After undergoing conservative heat treatment and shots without relief, a myelogram was performed which revealed a ruptured lumbar disc. After removal of the disc and fusion of her back, she returned home. She was in the hospital approximately 27 days. She had done no work outside the home since her accident to the date of trial which began on April 28, 1975.

Surgery was performed by Dr. Glen Cherry, a neurosurgeon for the removal of a herniated disc. On the same date surgery was performed by Dr. Robert Goldberg, an orthopedic surgeon, by fusing a portion of her spine with bone taken from her hip.

The parties stipulated plaintiff sustained an injury on or about January 10, 1974, in the course of her employment for Great Atlantic & Pacific Tea Company. She was discharged from the hospital April 6, 1974, and had not returned to work at the time of trial.

We have considered the entire record and hold the finding of the jury that Mrs. See-ton did not sustain any total incapacity is against the great weight and preponderance of the evidence.

The judgment is reversed and the cause is remanded.


author: McCLOUD, Chief Justice.

text:
    John H. PITTMAN et al., Appellants, v. Mack L. OWENS, Jr., Appellee.
    No. 4884.
    Court of Civil Appeals of Texas, Eastland.
    April 1, 1976.
    Rehearing Denied April 22, 1976.

      John W. Hicks, Jr., Bergman & Hicks, Dallas, for appellants.
    A. Joe Riddles, Kraus, Semon & Riddles, Richardson, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Mack L. Owens, sued defendants, John H. Pittman, John C. Bacon, and R. Garrow Wessendorff, jointly and severally, seeking damages and specific performance for the breach of a contract which required defendants to cause certain loan accounts to be removed from the Commercial National Bank of Dallas and transferred to the Commonwealth National Bank of Dallas. When plaintiff rested, the court instructed a verdict for defendants as to plaintiff’s claim for monetary damages. After both parties closed, the court instructed a verdict for plaintiff for specific performance. Defendants have appealed. We reverse and remand.

Plaintiff and defendants entered into a stock purchase agreement whereby plaintiff purchased from defendants the controlling interest in the Commercial National Bank of Dallas. The defendants also owned 59% of the Commonwealth National Bank of Dallas. The controversy concerns paragraph 13 of the agreement which provides:

“Upon receipt of notice to be given by Purchaser within ninety (90) days from date of closing in writing to Seller, the Seller shall cause to be transferred from the Bank to Commonwealth National Bank of Dallas as soon as practicable, any one or all of the following loan accounts:
(1) M. A. Ward
(2) Joe Hefner
(3) Country Squire Mobil Homes
(4) Richard Dennie
(5) Hugh Bearden
(6) Tricon Int. Airline, Inc.
(7) Jim Hughes
Seller and Purchaser agree that during the period affected by the requirements of this paragraph, that neither Bank will cause the loan balance of these borrowers to be increased other than by reason of accrued interest, nor allow the collateral position of such loans to decrease.” (Emphasis added.)

Plaintiff contends defendants failed to remove the Hugh Bearden and Richard Dennie accounts.

The trial court’s judgment provides: “ . . . John H. Pittman, John C. Bacon and Robert Garrow Wessendorff, jointly and severally, are Ordered to immediately, forthwith, and without any delay remove and cause to be transferred the Hugh Bearden loan accounts (comprised of two notes, one in the current amount of Three Thousand Thirty-Two and 17/100 ($3,032.17) Dollars and the other in the current amount of Twenty-Two Thousand, Nine Hundred Thirteen and 89/100 ($22,913.89) Dollars) and the Richard Dennie loan account (in the current amount of Twenty-Two Thousand, Six Hundred Twenty-Five and 14/100 ($22,625.14) Dollars), from the Commercial National Bank of Dallas, all to be done within the ordinary course and scope of banking business by properly compensating the Commercial National Bank of Dallas whereupon the Plaintiff will cause the loans to be properly assigned, conveyed, and transferred to the said Defendants or at the Defendants’ direction to the Commonwealth National Bank of Dallas. That the steps to be taken by the Defendants shall include, but not be limited to, the retiring of the said loan accounts if the same be necessary to effect the purposes of removing the same from the Commercial National Bank of Dallas . . .”

Defendants first argue the language “as soon as practicable” contained in paragraph 13 is ambiguous, and the court erred in not permitting extrinsic evidence as to the intentions of the parties. Defendants were not permitted to show that the parties to the agreement intended by the language “as soon as practicable” that any loan accounts would not be subject to transfer if “classified” by the national bank examiners, or if transfer would constitute an “overline of credit.” The two accounts in question were classified.

We think the term “as soon as practicable” as used in the contract is ambiguous. Bledsoe v. Miller, 496 S.W.2d 140 (Tex.Civ. App. — El Paso 1973, no writ; Williams v. Cooper, 504 S.W.2d 564 (Tex.Civ.App.— Eastland 1973, no writ); Berry Bros. v. Fairbanks, Morse & Co., 51 Tex.Civ.App. 558, 112 S.W. 427 (1908, no writ).

Plaintiff argues the language is unambiguous and means “within a reasonable time.” He relies upon National Surety Corporation v. Diggs, 272 S.W.2d 604 (Tex.Civ.App.— Forth Worth 1954, writ ref. n.r.e.), and U. S. Insurance Company v. Brown, 285 S.W.2d 843 (Tex.Civ.App. — Texarkana 1955, no writ). These cases are distinguishable. It is clear that the term, “as soon as practicable,” as used in the insurance policies in those cases dealt only with the time in which the event was to occur. This is not true in the contract under consideration. The individual defendants in paragraph 13 agree to cause, as soon as practicable, the transfer of certain loan accounts from one bank to another bank. Neither bank was a party to the contract. The contract discloses the necessity of some type of performance by persons or entities not parties to the contract. It is not clear that the language deals only with the time in which the event is to occur. The meaning of the contract between plaintiff and defendants was reasonably susceptible to more than one meaning, and the court committed reversible error in not admitting extrinsic evidence to remove the ambiguity. Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.Sup.1968).

In view of our holding, we have not considered defendants’ other points.

Judgment of the trial court is reversed and the cause remanded.


author: COLEMAN, Chief Justice.

text:
    JIM DANDY FAST FOODS, INC., d/b/a Church’s Fried Chicken, Appellant, v. Miriam CARPENTER, Appellee,
    No. 16663.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 1, 1976.

      Chilton Bryan, Ronald J. Sommers, Houston, for appellant.
    Simpson, Motgan & Burwell, Susan W. Burris, Texas City, for appellee.
   COLEMAN, Chief Justice.

Miriam Carpenter, plaintiff, sued Jim Dandy Fast Foods, Inc., to recover damages by reason of personal injuries suffered by her as a result of eating a piece of chicken sold to her by defendant. Judgment was rendered for the plaintiff based on the jury verdict.

Jim Dandy Fast Foods, Inc., owns and operates a retail fried chicken restaurant known as Church’s Fried Chicken located in Texas City, Texas. On September 16, 1970, plaintiff entered this restaurant and ordered a fried breast of chicken. After receiving her order, she sat down at a table. She then took her fingers and pulled a piece from the meaty portion of the chicken breast and put it in her mouth. This was a piece of white meat covered with a heavy crust. She chewed it up and swallowed it. She then felt something in her throat and took a bite of bread thinking that a piece of the crust had stuck in her throat and the bread would cause it to go on into her stomach. After she realized it was a bone, she attempted to remove it with her finger. Her attempt was unsuccessful and she was bleeding. She asked an employee to direct her to a doctor and was eventually admitted to a hospital where a piece of bone was removed from her throat.

There is testimony that the doctor and his nurse accompanied the plaintiff as she left the operating room and that the doctor gave to plaintiff’s husband a piece of chicken bone at that time. The trial court admitted this piece of bone into evidence. This is a small curved bone one inch in length. One end is smoothly cut at an angle creating a sharp point. The other end is not a smooth cut.

The plaintiff testified that she knew that there were bones in chicken and that she knew certain areas where those bones were located. She did not expect a bone to be in the part of the chicken breast which she placed in her mouth. She had never encountered a bone in that particular part of the chicken. When she received the chicken she couldn’t see anything wrong with it such as bones sticking out. She did not feel the bone as she chewed the chicken.

Dr. Stiernberg, an ear, nose and throat specialist, testified that he removed a piece of chicken bone from the plaintiff’s esophagus. He did not remember whether or not he gave the piece of bone to the plaintiff.

Mr. Pete Ober testified that for many years he had been engaged in the meat business and was experienced in cutting up chicken for the retail trade. He had examined the piece of bone introduced as an exhibit in this case. He testified that he had never seen a chicken bone cut like that before. He testified that the piece of bone was a part of the wishbone. He always disjointed the chicken and left the wishbone whole. He stated that it was not proper to cut up a chicken in such a manner as to leave part of the breast meat on the wing piece. He stated that while the wishbone was part of the breast it was not joined to the breastbone. He testified that the wishbone was ordinarily cut as a separate piece of chicken, but that at times the breast was split. In such a case half of the wishbone would be found which would be a lot longer than the piece in question. He testified that if a person is eating a piece of breast and pulls off one piece of the breast he should not encounter a bone like the one in question.

Mr. Lawrence Smith, president of City Poultry Processing Company, a division of Jim Dandy Fast Foods, testified. He was familiar with the manner in which chickens were cut up for Church’s Fried Chicken. It is an 8-piece cut. There are nine government inspectors and one government grader in the plant at all times that it is in operation. The inspectors check to see that the poultry is fit for human consumption and the grader checks to see whether the chicken is properly cut.

Mrs. Lois Hale who is a supervisor with the defendant testified that the U.S.D.A. inspectors make a random check probably two times a day to determine whether the chicken is cut up in the fashion established by the defendant. They do not examine individual pieces other than to see that they are cut in a uniform manner. She testified that the wishbone is not taken off but that it is a part of the piece of breast.

Mr. Smith testified that 50,000 to 60,000 chickens per day were processed in the plant; that the management specifies that chickens be cut into eight pieces and that they advertise larger, bigger and better pieces. The cutters are instructed to cut the breast into two pieces except that part of the breast is also left attached to each wing in order to give the wing portion a little more of a meaty characteristic. The upper shoulder of the breast is left attached to the wing and the remainder is cut into two pieces. The inspections are visual and are made by means of random spot checks.

Mr. Smith testified that if the chicken is improperly cut internally so that a bone is “cut internally incorrectly” there would be no way to find this from a visual inspection. He was asked, “If something in wrong on the inside, say chipping has occurred where bone got imbedded in the meat, there would be no way for the inspector to notice this?” In answer he stated: “I don’t know. I assume if it was deep in the meat, they don’t x-ray or anything of that nature. It’s possible.” Mrs. Hale was shown the bone which was introduced into evidence and was asked if she would expect to encounter a bone like that in the breast and she answered that she would. When she was asked if she would expect it to be off the front of the breast she answered, “No, no. No, not on the meaty part, no.” She stated that if you pull of a piece of the meat from the front of the breast the piece of bone would not be in there. She had never seen a bone in the meaty top part of the breast. She testified that it was their practice to split the breast down the center and that the pulley bone would be cut into two pieces, but that the pieces would not look like the exhibit in this case. She further stated that she did not know whether she had ever cut anything like the exhibit because “it’s in the meat.”

In answer to Special Issue No. 1 the jury found that the chicken served by the defendant to the plaintiff on September 16, 1970, “was in a defective and unreasonable dangerous condition making it unfit for human consumption.” By answer to Special Issue No. 2 the jury found that the “defective and unreasonable dangerous condition” of the chicken was a proximate cause of the plaintiff’s injuries.

Special Issue No. 4 reads:

“Do you find from a preponderance of the evidence that Miriam Carpenter, in buying and receiving the chicken breast in question, at the time and on the occasion in question, had reasonable expectation of finding bones in, about, and around the chicken breast, as she bit into, chewed, and swallowed the chicken breast and knew that she would have to use the care and prudence for her own safety in the exercise of such precaution for her own well being, as a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?”

The jury answered, “She did have reasonable expectation.” but in answer to the next special issue failed to find that the failure of Miriam Carpenter with respect to the reasonable expectation of finding bones was a proximate cause of any injury or damage she received.

The jury failed to find that Miriam Carpenter assumed the risk of chicken bones in eating the chicken and failed to find her guilty of any acts of contributory negligence. The jury found damages in the sum of $1500.00.

The appellant objected to Special Issue No. 1 on the basis that there was no evidence, or insufficient evidence, to warrant the submission of the issue to the jury. The appellant also urged a motion for judgment notwithstanding the verdict of the jury for the reason that the plaintiff “totally failed to prove that the piece of chicken was defective, inedible, and unreasonably dangerous at the time it left the hands of the defendant.” In connection with these points the appellant calls attentioii to the testimony on the part of the plaintiff that she knew that the piece of breast of chicken that she got from appellant had some bones attached and that she knew there were bones in chicken.

In response the plaintiff argues two propositions: first, that the piece of chicken was improperly cut and that the wishbone was not in its normal and expected size and shape, and second, that the piece of chicken breast was so cut by the defendant as to place a segment of the wishbone in the fleshy part of the chicken where its presence would not be anticipated. They contend that the piece of chicken cut in this

manner was defective and that by reason of the defect the jury was entitled to find that it was not reasonably fit for human consumption.

It has long been established in this state that where food products sold for human consumption are unfit for that purpose, the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942).

Texas is firmly committed to the rule stated in the Restatement of Torts, 2d ed., Sec. 402A. The rule of strict liability there stated is applicable to vendors of food. In order to prevail under the rule of strict liability, the plaintiff must prove that the injury which he sustained was caused by the unwholesome and unfit condition of the food served to him. The fact that the food served was unfit for human consumption can be shown by circumstantial evidence. Hebert v. Loveless, 474 S.W.2d 732 (Tex. Civ.App. — Beaumont, 1971, ref. n. r. e.); F. W. Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ.App. — San Antonio, 1965, writ ref’d n. r. e.).

A recovery was denied the plaintiff in a case where he broke a tooth by biting on a cherry pit concealed in a cherry pie. Hunt v. Ferguson-Paulus Enterprises, 243 Or. 546, 415 P.2d 13 (1966). It was contended in that case that there was a breach of a warranty imposed by law that the pie was reasonably fit for human consumption. The court noted that in the consideration of similar cases some of the courts have drawn a distinction between injury caused by spoiled, impure, or contaminated food or food containing a foreign substance, and injury caused by a substance natural to the product sold, and in the latter class of cases these courts hold that there is no liability on the part of the dispenser of food. As an example, the court cited Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144, where the court said:

“ . . . despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones.”

The Oregon court then noted that other courts have rejected the so-called “foreign-natural” test in favor of what is known as the “reasonable expectation” test. As an example, the court cited Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64, which held that a person who was injured by a chicken bone in a chicken sandwich served to him in a restaurant could recover for his injury. The Wisconsin court stated:

“ ‘There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected by the consumer is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.’ 10 Wis.2d at 331-332, 103 N.W.2d at 68.”

An action against the packer of boned chicken in a sealed can for personal injury sustained by a small girl eating Chow Mein containing chicken taken from the can, when a small bone lodged in her esophagus, was considered by the Maryland Court of Appeals in Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442, 77 A.L.R.2d 1 (1959). There the Court of Appeals reversed the judgment of the trial court which was based on a directed verdict for the defendant. The court found a division of authority on the question of whether bones which are natural to the type of food eaten, but which generally are not found in the style of food as prepared, are to be deemed the equivalent of a foreign substance in determining whether the food in which they are found is reasonably fit and safe for human consumption. The court reviewed a number of authorities and determined that the question of fitness and safeness for human consumption is measurable by the same tests in both warranty cases and negligence cases and found that an issue of fact was raised.

Some courts hold that the fact that the substance in a food product causing harm to a consumer is natural to the food eaten, such as a piece of oyster shell in a can of oysters, or a splinter from a bone in a t-bone steak, is merely persuasive and relevant evidence bearing on the question as to whether the product was in fact reasonably fit for human consumption as food. Other courts hold that where a potentially harmful substance in a food is natural to the product and it can be said as a matter of common knowledge that such product occasionally contains such a substance, the product is as a matter of law reasonably fit for human consumption. Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d 913 (1942).

The question is whether the piece of chicken was in a defective condition unreasonably dangerous to the plaintiff. The Restatement of Torts, 2d, Sec. 402A; Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). Comment g. to Sec. 402A, supra, states that the rule applies “only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” The defective condition may be the result of the way in which the product is prepared. Comment h., supra. An article is unreasonably dangerous when the article sold is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Comment i., supra.

There is evidence that the piece of chicken was not cut in the usual and customary manner. The wishbone was smaller than might be expected; the bone was relatively sharp at both ends. The consumer would expect to find bones in and about such a piece of chicken. We think reasonable minds could differ as to whether this bone was in a condition not contemplated by the ultimate consumer. Reasonable persons might also differ as to whether the piece of chicken in which this particular bone was found was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics. A jury question was presented which was resolved by the jury in favor of the plaintiff. The court did not err in rendering judgment for the plaintiff. Nor did the court err in overruling defendant’s exception and objections to Special Issue No. 1 of the court’s charge.

Each finding made by the jury was supported by evidence of probative force. We find no points of error which properly present a question concerning the great weight and preponderance of the evidence. In no point does the appellant contend that the trial court erred in overruling its motion for new trial because a finding was contrary to the great weight and preponderance of the evidence. It does complain that the court erred in rendering judgment for the plaintiff because certain issues were contrary to the great weight and preponderance of the evidence, and further presents points contending that the court erred in overruling the defendant’s exceptions and objections to certain special issues for the reason that an answer to such issue would be against the great weight and preponderance of the probative evidence. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.1964); Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ. App. — San Antonio, 1965, writ ref’d n. r. e.).

The judgment is affirmed.


author: PEDEN, Justice.

text:
    William McCALL, Appellant, v. TRUCKS OF TEXAS, INC., et al., Appellees.
    No. 16657.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 1, 1976.
    Rehearing Denied April 29, 1976.

      Kronzer, Abraham & Watkins, Robert E. Ballard, James Edward Robinson, Houston, for appellant.
    Dow, Cogburn & Friedman, Edmund L. Cogburn, K. Gregory Erwin, Houston, for appellees.
   PEDEN, Justice.

Appeal from a summary judgment in favor of the defendants. The plaintiff, Mr. William McCall, sued Trucks of Texas, Inc., and Superior Trucks, Inc., alleging that they had materially misrepresented the condition of a new truck he bought from them. They answered by a general denial and affirmative pleas of accord and satisfaction, compromise and settlement, and release and discharge. They based a motion for summary judgment on a release signed by McCall, and he filed his first supplemental petition supported by an attached affidavit alleging fraudulent and false representation, failure of consideration, and mutual mistake of fact.

The release stated:

“I, the undersigned, hereby agree, for the consideration of $550.00 paid to me by Superior Trucks, Inc., Trucks of Texas, Inc. and Tran Serve Corporation, to release Superior Trucks, Inc., Trucks of Texas, Inc. and Tran Serve Corporation from any and all responsibility, claims, causes and causes of action which I have or may have, past, present or future on 1974 GMC Model ME667713 Serial # U585874.
“I also agree that, for this consideration, we will release Superior Trucks, Inc., Trucks of Texas, Inc. and Tran Serve Corporation from any other liability, claims, actions, and causes of action for repair or downtime on this vehicle.
“And I, the undersigned, further agree to indemnify and hold harmless Superior Trucks, Inc., Trucks of Texas, Inc., and Tran Serve Corporation from any further suit, action or cause of action and any judgment, if any, arising therefrom or cost relating to same.
/s/ William McCall
Witnessed by /s/ Calvert C. Wallace Date /s/ October 24, 1974”

The release and a copy of the $550 check were attached to an affidavit of Mr. Pat McDermott, president of Superior Trucks, stating that he was present and witnessed the execution of the release by McCall; that before he executed the release, McCall had the truck driven and inspected by a mechanic of his selection, who told McDer-mott that the truck was performing satisfactorily, so he (McDermott) co-signed the check and gave it to McCall for the release.

The only other affidavit was that made by McCall. It included these statements:

I.
“My name is WILLIAM McCALL. I am 70 years of age, have never been convicted of a felony, and am fully capable of testifying to the matters set out in this affidavit.
II.
“On or about August 1, 1974, I purchased a new . . . GMC Truck from Trucks of Texas for a total purchase price of $18,299.30. In driving the truck home . . . and in the days following, I discovered that the truck vibrated very badly and presented great difficulty in shifting the transmission. . . . The truck . . . was not fit to drive in my business as a dump truck, and, accordingly, I ordered a stop payment on the draft . . for the purchase price of the truck. .
III.
“I returned the truck to Trucks of Texas to accordance with instructions from my attorney. Thereafter, Mr. Pat McDermott contacted me and told me that if I would go ahead and buy the truck that Trucks of Texas and Superior Trucks would pay for my down time and would repair the mechanical problems of the truck and make it operate as a new truck should. I was also told that the transmission shifting difficulty could be solved by putting in a different transmission. Before I signed the settlement paper, Trucks of Texas and Superior Trucks, Inc. told me they had fixed the vibration and that the truck would operate as it should. Based upon the assurances by Mr. McDermott of Superior Trucks and the assurances of Trucks of Texas, Inc. that they would and had fixed the truck and make it operate as a new truck should, I agreed to and did authorize the payment of a draft for the purchase price of the truck and later signed the settlement. Had it not been for these assurances and representations, I would not have purchased the truck, or signed the settlement.
IV.
“Trucks of Texas, Inc. and Superior Trucks did pay me $550.00, which sum was arrived at by Mr. McDermott, and which did not cover my lost working time. Trucks of Texas and Superior Trucks did take the truck and work on it for an extended period of time, but they have not fixed the shifting difficulties, nor have they eliminated the vibration. The vibration in the truck is so severe that it has vibrated my carburetor loose on the engine on two different occasions. The vibration has caused lug nuts to work loose on the wheels. The truck has been in the shops of the two defendants for extended periods of time since September, 1974, but they have not eliminated the shifting difficulty nor have they eliminated the vibration in the truck
V.
“The truck was not driven and inspected by a mechanic selected by me prior to the execution of the release set forth in defendants’ motion for summary judgment. No mechanic of my choosing has ever stated that the truck was performing satisfactorily. On the contrary, the truck has never performed satisfactorily at any time.
/s/ Wm. McCall

The appellee has raised the threshold question of whether Mr. McCall’s affidavit may be considered as summary judgment evidence. In Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (1971), the Texas Supreme Court held that pleadings simply outline the issues and, even if sworn, are not summary judgment evidence. In our case, Mr. McCall’s affidavit was attached to his first supplemental petition, which stated “Plaintiff’s affidavit in support of this petition is attached hereto as Exhibit ‘A’ and is incorporated herein by reference as though it were set out herein verbatim.” We find no logical basis for holding that this reference in the pleading to McCall’s affidavit is fatal to consideration of it as summary judgment evidence. Looking to the criteria applied in Hidalgo, the factual detail is more precise in McCall’s affidavit than in a pleading, the verification of the affidavit would not appear to have been less seriously taken simply because the pleading incorporated it by reference, and the affidavit constitutes an independently produced proof.

McCall’s second through fifth points of error are that the trial court erred in granting summary judgment for the defendants in that (2) the defendants failed to meet their burden of proof that there was consideration for the execution of the release; (3) there were genuine issues of fact as to the failure of consideration for the execution of the release; (4) there were genuine issues of fact as to the fraudulent inducement of the release by the defendants; and (5) there were genuine issues of fact as to a mutual mistake of the parties in the execution of the release.

McCall acknowledges that assuming the defendants sufficiently pleaded and proved the existence of the release the burden is upon McCall to produce evidence that raises a fact issue as to a legal justification or excuse for setting aside the release. McCall seeks to avoid enforcement of the release on the grounds of a) fraud in the inducement of the release, b) failure of consideration for it, and c) mutual mistake of fact. These are affirmative defenses in the nature of confession and avoidance, and McCall has the burden of raising a fact issue with respect to one of them. Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975).

McCall’s pleading complains of a failure of consideration. He says he raised a fact issue of failure of consideration by his affidavit: i. e., that the $550 was only a token and that the real reason he signed the release was the representation of defendants that the truck had been repaired and would be kept in good repair. He argues that since he raised a genuine issue of fact as to lack of consideration or failure of consideration, the burden of proof shifted to the appellees to establish the existence of proper consideration.

In the absence of fraud, accident, or mutual mistake, parol evidence is inadmissible to contradict the terms of a written instrument that on its face is complete and unambiguous. Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S.W. 322 (1905); Armstreet v. Greer, 411 S.W.2d 403 (Tex. Civ.App.1967, ref. n. r. e.).

McCall argues in his fourth point of error that there were genuine issues as to fraudulent inducement of the release.

A release, like any other contract, may be cancelled if induced by fraud. Page v. Baldon, 437 S.W.2d 625 (Tex.Civ.App. 1969, ref. n. r. e.). To establish fraud it must appear that (1) a material representation was made; (2) it was false; (3) when the representation was made, the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with the intention that it should be acted upon by óhe party; (5) the party acted in reliance upon the representation, and (6) the party thereby suffered injury. Brady v. Johnson, 512 S.W.2d 359 (Tex.Civ.App.1974, no writ); Panhandle & Santa Fe Ry. Co. v. O’Neal, 119 S.W.2d 1077 (Tex.Civ.App.1938, writ ref.).

Construing McCall’s affidavit in a light favorable to him, we hold that he substantially complied with the test of fraud stated in Brady v. Johnson and therefore raised a genuine fact issue. The six elements stated in that case with the substantial language from McCall’s affidavit are: (1) a material representation was made:

“Mr. McDermott contacted me and told me that if I would go ahead and buy the truck that Trucks of Texas and Superior Trucks would pay for my down time and would repair the mechanical problems of the truck and make it operate as a new truck should.” and “ . . . Trucks of Texas and Superior Trucks, Inc. told me they had fixed the vibration and that the truck would operate as it should. Based upon the assurances by Mr. McDermott of Superior Trucks and the assurances of Trucks of Texas, Inc., that they would and had fixed the truck and make it operate as a new truck should.”

(2) the representation was false:

“ . . . They have not fixed the shifting difficulties, nor have they eliminated the vibration.” and
“The truck has been in the shops of the two defendants . . . since September 1974, but they have not eliminated the shifting difficulty nor have they eliminated the vibration in the truck.” and
“The truck has never performed satisfactorily at any time.”

(3) when the representation was made the speaker knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion: we only know from the affidavit that McCall said he was told it was fixed and that, according to him, it was not; (4) the representation was made with the intent that it should be acted upon: a number of representations were made to McCall to convince him to buy the truck and sign the release; (5) the party acted in reliance upon the representation:

“Had it not been for these assurances and representations, I would not have purchased the truck, or signed the settlement.”

(6) the party thereby suffered injury: with the loss of the use of the truck, the continual mechanical problems, and the purchase of a truck not fit to drive in his business, McCall has suffered.

In McCall’s first point of error he complains that the trial court abused its discretion by overruling his motion to delay the hearing and his motion to strike the affirmative defenses of the appellees until he could obtain some needed depositions. The appellees contend that McCall may not complain of the ruling on these motions because he failed to file a motion for a new trial. We agree.

The ruling of a court on a motion for continuance shall be considered to have been acquiesced in unless complained of in the motion for new trial. Rule 325, Texas Rules of Civil Procedure. Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ.App.1968, writ ref. n. r. e.); Shaw v. Transport Life Ins. Co., 498 S.W.2d 495 (Tex.Civ.App.1973, no writ); Enterprises and Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ. App.1975, no writ).

Reversed and remanded.


author: RALEIGH BROWN, Justice.

text:
    Charles Lee BLEDSOE, Appellant, v. Martha Bledsoe BLACK, Appellee.
    No. 4891.
    Court of Civil Appeals of Texas, Eastland.
    April 8, 1976.

      Bob Hanna, Robinson, Hanna, Burke & Moore, Abilene, for appellant.
    Don Seamster, Wagstaff, Harrell, Pope, Alvis, Dickinson & Erwin, Abilene, for ap-pellee.
   RALEIGH BROWN, Justice.

This is a domestic relations case. Martha Bledsoe Black filed a motion for contempt contending Charles Lee Bledsoe was delinquent in child support payments. Bledsoe answered and petitioned to be appointed managing conservator or in the alternative requested that child support payments be reduced.

The trial court found Bledsoe was delinquent in support payments and ordered him to pay his arrearage of $3,000 plus attorneys’ fees of $600. Bledsoe’s requested relief was denied. He appeals.

Bledsoe contends in his first three points of error the trial court erred in failing to require a court reporter to record the testimony because (1) the hearing relates to a purported contempt of a previous order; (2) said failure violated Article 11.14(d) of the Texas Family Code; and (3) said failure violates Article 2324, V.A.C.S.

Appellant argues that although it is un-controverted both parties and their attorneys appeared at the hearing and no mention was made concerning whether or not a reporter be requested, there is no showing he waived having a court reporter transcribe the proceedings and therefore, the court has committed error. We disagree.

Texas Family Code Ann. § 11.14(d) (1975), provides:

“(d) A record shall be made as in civil cases generally unless waived by the parties with the consent of the court.”

Article 2324 provides in general that each official court reporter shall “upon request” attend all sessions of the court, take shorthand notes of all testimony, and prepare a statement of facts. The words “upon request” were added by amendment effective May 27, 1975. Prior to the amendment, the statute provided that the reporter “shall” perform the duties outlined in the statute, and it had been held that Article 2324 was mandatory and failure to comply was fundamental error in contempt cases. Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.— Dallas 1975, no writ). The 1975 amendment added a request requirement.

Appellant neither objected nor excepted to the absence of the reporter. There is no evidence a reporter was requested. Appellant is now in no position to complain of the absence of a reporter.

The court in Robinson v. Robinson, 487 S.W.2d 713 (Tex.Sup.1972), considering a like problem which included the absence of a party stated:

“ . . .It does not appear that any request was made for the court reporter to record the testimony of the third witness or that any objection was made to his failure to do so. In our opinion the hearing of testimony in the presence of counsel for all parties but while one of the parties and the court reporter are absent is not so fundamentally erroneous or unfair as to require a reversal in the absence of objection or exception.”

In Phillips v. Phillips, 532 S.W.2d 161 (Tex.Civ.App.—Austin 1976, no writ), the court said:

“ . . .To complain on appeal of the absence of the court reporter, an appellant must show that he objected in the trial court, as he must to complain of any other procedural error in the trial. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ. App.1973, no writ), Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.1974, writ ref’d n. r. e.).”

Appellant’s first three points of error are overruled.

Bledsoe argues the court abused its discretion in failing to give him credit for $3,382.08 he had paid on a hospital bill incurred by one of the minor children.

The findings of fact include:

“6. The Court found that $5,100.00 of child support had not been paid by the father, as required by the divorce judgment.
7. That the father had purchased some clothes for the children and had maintained a hospitalization insurance policy on the children.
8. That the purchasing of clothes by father for the children and the maintaining of the insurance policy was voluntarily done by father.
9. That the father should be given credit for some of the clothes purchased by father and for the insurance premium for the hospitalization policy and that after giving such credits, there was still due and owing $3,000 in unpaid child support to the Mother.
10. Medical expenses for, one daughter, Joyce Louise Bledsoe had been incurred since the divorce. These expenses had been paid primarily by insurance proceeds from two insurance policies — one carried by the Mother on the children and one carried by the Father.”

The parties agreed that Lee Bledsoe provided a hospitalization insurance policy on his minor children during the marriage and continued the policy after the divorce. His insurance carrier paid $3,382.08 on a hospital bill incurred by one of the minor children.

The failure of the court to credit Bledsoe with this sum is the substance of his claim the court abused its discretion. We disagree with appellant and overrule the point of error.

Bledsoe urged there was insufficient evidence to support the award of $3,000 in delinquent payments.

There is neither a complete nor an agreed statement of facts.

The court in Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968), said:

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.”
The point of error is overruled.

We have considered and overruled all points of error.

The judgment is affirmed.


author: DUNAGAN, Justice.

text:
    BRAZOS VALLEY HARVESTORE SYSTEMS, INC., Appellant, v. Louise BEAVERS et vir., Appellees.
    No. 899.
    Court of Civil Appeals of Texas, Tyler.
    April 8, 1976.
    Rehearing Denied April 29, 1976.

      Billy M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellant.
    Blake Bailey, Gordon Wellborn & Rex Houston, Henderson, William D. Guidry, Benchoff & Guidry, Nacogdoches, for appel-lees.
   DUNAGAN, Justice.

This appeal is from a judgment overruling appellant’s plea of privilege to be sued in Brazos County. After a hearing before the court, the suit was retained in Rusk County.

Louise and R. R. Beavers, appellees, entered into a written contract with Brazos Valley Harvestore Systems, Inc., appellant, for the installation of an automatic feed system on appellees’ dairy farm in Rusk County. After the system was installed, appellees instituted this suit against appellant. They alleged that appellant’s breach of express and implied warranties of proper installation resulted in a loss of milk production. They further alleged that appellant’s negligence caused the fall of Louise Beavers from the feed system. Appellees sought $20,000 for the loss of milk production and $250,000 for medical expenses, incapacity and pain caused by the fall.

Appellant, a Texas corporation with its principal place of business in Brazos County, contends that appellees failed to establish any exception to its right to be sued in Brazos County. Appellees rely upon subdivision 5 (suits on contracts), subdivision 9a (suits for negligence) of Article 1995 and upon the Middlebrook doctrine if one subdivision should be inapplicable.

The venue facts which must be alleged and proved.under subdivision 5 are as follows: (1) that the defendant is a party reached by the statute; (2) that the claim is based upon a written contract; (3) that the contract was entered into by the defendant or one authorized to bind him; and (4) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. General Motors Corp. v. Brady, 477 S.W.2d 385, 388-389 (Tex.Civ. App.—Tyler 1972, n. w. h.); 1 McDonald, Texas Civil Practice, section 4.11.1. Subdivision 5 is not invoked unless the written contract expressly names the county of performance or a definite place therein. Harkness v. Employers National Insurance Co., 502 S.W.2d 670 (Tex.1973).

We find that the above venue facts are present. In fact, appellant does not dispute the existence of any of these venue facts. Rather, it contends that subdivision 5 is inapplicable because appellees’ contractual claim was not the principal right asserted in their petition. Appellant points out that the contract claim amounted to less than 7.5% of the recovery sought and concludes that simple mathematics establish the dominance of the negligence cause of action. We disagree.

Appellant relies on the rule that when venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957). This well-established rule is used to determine which, if any, venue exception applies to the circumstances of the case. See Shelton v. Poynor, 326 S.W.2d 583 (Tex.Civ.App.—El Paso 1959, writ dism’d); Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App.—El Paso 1955, n. w. h.); Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.—Fort Worth 1950, n. w. h). We have found no case in which this rule has been used to establish the dominance of one cause of action over another. A ratio of approximately 75 to 1 existed between the recoveries sought on two causes of action in Wester v. Smith, 213 S.W.2d 550 (Tex.Civ.App.—Fort Worth 1948, n. w. h.). The lesser cause came within an exception to the venue privilege and the court did not permit that cause to be controlled by the greater. We do not believe that the magnitude of the relief sought on one cause of action can prevent the application to another cause of action of a venue exception which has been otherwise established. See Burke v. Scott, 400 S.W.2d 385, 389 (Tex. Civ.App.—Austin 1966, writ dism’d). We hold that appellees’ contractual claim was properly retained in Rusk County.

Appellant also attacks the retention of the negligence cause of action in Rusk County. To sustain venue in Rusk County under subdivision 9a, appellees were required to prove: (1) that a negligent act or omission occurred in Rusk County; (2) that such act or omission was that of appellant or its servant, agent or representative acting within the scope of employment; and (3) that such negligence was the proximate cause of the injury. H. E. Butt Grocery Stores, Inc. v. Norwood, 504 S.W.2d 920 (Tex.Civ.App.—San Antonio 1974, n. w. h.); 1 McDonald, Texas Civil Practice, section 4.07.2, at 476-480.

The record is before us without findings of fact or conclusions of law. Therefore, we must presume that the trial court found each of the above facts in support of the judgment. Boyd v. Thompson-Hayward Chemical Co., 450 S.W.2d 937, 941 (Tex.Civ.App.—Tyler 1970, writ dism’d). Appellant argues that there was no evidence, or no more than a scintilla of evidence, to support the implied finding that the act or omission causing the injury was that of appellant or its servant. In passing upon this “no evidence” point, we must consider only the evidence and reasonable inferences therefrom in favor of the judgment. Boyd v. Thompson-Hayward Chemical Co., supra; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 364 (1960).

When viewed in the light most favorable to the judgment, the evidence shows that appellant’s employees installed an automatic feeding system upon appellees’ dairy farm. This system basically consisted of a grain storage silo, a “flight” conveyor, a “hopper” and a feed conveyor. The flight conveyor took grain from the silo upwards about 5 feet to the hopper. The hopper funneled the grain down to the feed conveyor which ran the length of a concrete slab and from which the cattle were fed. This hopper often became obstructed with grain and Mrs. Beavers fell while attempting to clean out the hopper. The fall occurred when she grasped a horizontal 2 X 4-inch board which “pulled loose” from two vertical posts. The board had been attached to each post with one medium-sized nail. Mrs. Beavers testified that she did not install this 2 X 4-inch board and did not direct any of the farm employees to install it. She testified that she did not know who installed it. Mrs. Beavers further testified that appellant’s employees were working at or near that spot when the board first appeared.

While there is no direct evidence that appellant’s employees installed the 2 X 4-inch board, the venue facts of subdivision 9a may be established by circumstantial evidence. Bearden v. Lyntegar Electric Cooperative, Inc., 454 S.W.2d 885 (Tex.Civ.App.—Amarillo 1970, n. w. h.); Boyd v. Thompson-Hayward Chemical Co., supra. To establish a fact by circumstantial evidence, however, the circumstances relied on

must have sufficient probative force to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the fact. Mobile, Inc. v. Cone, 457 S.W.2d 175 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.). If the circumstances relied on are equally consistent with the existence and nonexistence of an ultimate fact sought to be established, such circumstances constitute no evidence of that fact. Imperial Casualty and Indemnity Co. of Omaha, Nebraska v. Terry, 451 S.W.2d 303, 308 (Tex.Civ.App.—Tyler 1970, n. w. h.); South Texas Water Co. v. Bieri, 247 S.W.2d 268, 274 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.).

We conclude that the evidence and reasonable inferences therefrom, when viewed in the light most favorable to the judgment, establish only that appellant could have installed the 2 X 4-inch board. We are of the opinion that there is no more than a scintilla of evidence that appellant did install the board. The evidence is equally consistent with the installation of the board by appellees’ employees as with its installation by appellant’s employees. Such evidence will not invoke subdivision 9a. The Southland Corporation of Texas v. Doss, 408 S.W.2d 557 (Tex.Civ.App.—San Antonio 1966, n. w. h.).

Appellees also pleaded that appellant was negligent in the following omissions: (1) failure to provide safe access to the hopper; (2) failure to instruct appellees on how to safely climb to the hopper; and (3) failure to warn appellees of the danger in climbing to the hopper. Appellees argue that even if they did not prove that appellant’s employees installed the 2 X 4-inch board, subdivision 9a was invoked by these negligent omissions.

Appellant’s service representative, Mr. Holliman, testified that he knew of the hopper’s tendency to become clogged with grain and did not instruct appellees on how to climb to the hopper or provide any means to do so. Although it is undisputed that such conduct was that of appellant through its employee, there is no evidence that such conduct was negligent or that it proximately caused the injury. In the absence of such evidence, the omissions are insufficient to maintain venue in Rusk County under subdivision 9a.

Appellees argue that despite the inapplicability of subdivision 9a they are entitled to maintain the negligence cause of action in Rusk County under the Middle-brook doctrine. This rule is that a plaintiff who in good faith asserts joinable claims against the same defendant can maintain venue upon all those claims in a county where venue is proper as to one claim. 59 Tex.Jur.2d, sec. 116, p. 542; 1 McDonald, Texas Civil Practice, section 4.38; Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935 (1894). This doctrine has been recently affirmed. Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App.—El Paso 1974, n. w. h.); Pecos Valley Southern Ry. Co. v. Parkhill Produce Co., 163 Tex. 88, 352 S.W.2d 723 (1961). This doctrine is not based on any exception in Article 1995 but rather on the public policy of avoiding a multiplicity of suits. Boyd v. San Antonio Nat. Bank, 171 S.W.2d 375 (Tex.Civ.App.—San Antonio 1943, n. w. h.); Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088 (Tex.1931); 59 Tex.Jur.2d sec. 116, p. 544. There are exceptions to the Middlebrook doctrine. 1 McDonald, Texas Civil Practice, section 4.38 at 559-561. However, none of these exceptions appears applicable here.

Appellant contends that the Middlebrook doctrine does not apply to causes of action belonging to more than one plaintiff. It relies upon the rule that when two plaintiffs, asserting distinct and unrelated actions against the same defendant, join these actions, the Middlebrook doctrine is inapplicable; if the defendant’s plea of privilege was good as to one plaintiff but not good as to the other, the plea should be sustained as to the one and overruled as to the other. Finder v. Jenka Corp., 348 S.W.2d 236 (Tex. Civ.App.—San Antonio 1961, n. w. h.). Appellant contends that the contractual cause of action belongs to the community estate of Mr. and Mrs. Beavers while the negligence cause of action belongs to the separate estate of Mrs. Beavers.

The Middlebrook doctrine has been applied in suits brought by multiple plaintiffs. See Sheffield v. Kirschmer, 269 S.W.2d 942 (Tex.Civ.App.—Dallas 1954, n. w. h.); Squyres v. Christian, 242 S.W.2d 786 (Tex.Civ.App.—Texarkana 1951, writ dism’d); Hawkins v. Schroeter, 212 S.W.2d 843 (Tex.Civ.App.—San Antonio 1948, n. w. h.); Eppenauer v. Hoffman, 115 S.W.2d 478 (Tex.Civ.App.—Eastland 1938, n. w. h.). Nevertheless, the application of the Middle-brook doctrine to causes of action arising out of different transactions depends on the nature of these causes of action. See Wester v. Smith, 213 S.W.2d 550 (Tex.Civ.App.— Fort Worth 1948, n. w. h.) and Wester v. Smith, 213 S.W.2d 552 (Tex.Civ.App.—Fort Worth 1948, n. w. h.). In the Wester cases, causes of action shared by multiple plaintiffs were joined under the Middlebrook doctrine while a cause of action belonging to one of those plaintiffs alone was severed and transferred to the county of the defendant’s residence. We look, therefore, to the nature of the claims asserted in the original petition of the Beavers.

It is undisputed that the claim for lost milk production belongs to the community estate. The negligence claim sought recovery for mental and physical pain and suffering, for incapacity, and for medical expenses. The claim for Mrs. Beavers’s pain and suffering belongs to her separate estate while the claims for incapacity and medical expense belong to the community. Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).

That portion of the negligence cause of action which belongs to the community estate is joinable under the Middlebrook doctrine with the community’s contractual claim. The entire negligence cause of action, however, is shared by the community estate and the separate estate of Mrs. Beavers. The Middlebrook doctrine has been applied to prohibit the severance of an indivisible cause of action owned jointly by multiple plaintiffs. Roberts v. Dunn, 426 S.W.2d 273, 275 (Tex.Civ.App.—Dallas 1968, n. w. h.). We believe that the public policy of avoiding a multiplicity of suits should be applied in this case to hold the entire negligence cause of action in Rusk County.

The judgment of the trial court is affirmed.

      . A products liability theory was not asserted.

      . The evidence shows that the incapacity was the inability of Mrs. Beavers to perform her work around the dairy farm.


author: BISSETT, Justice.

text:
    Martin Dies BUSH, Relator, v. The Honorable Filemon VELA, District Judge, Respondent.
    No. 1114.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 8, 1976.

      James Roby Clopton, McAllen, for appellant.
    Gordon L. Briscoe, Harlingen, for appel-lee.
   OPINION

BISSETT, Justice.

This is an original action filed in this Court by Martin Dies Bush, relator, in which he seeks, by writ of mandamus, to compel the Honorable Filemon Vela, Judge of the 107th Judicial District Court of Wil-lacy County, Texas, to set aside: 1) an order which sustained the contest to his pauper’s oath, and 2) an order which dismissed relator’s suit.

The background of the case is as follows: relator filed a suit in the District Court of Willacy County, Texas, against W. Don Stone to recover damages allegedly suffered by reason of fraud. In response thereto, Stone filed an original answer and other defensive pleadings in the nature of set-off, counterclaim or cross-action. An auditor was subsequently appointed for the purpose of auditing the accounts between the parties. Relator was then ordered to give security for the completed audit and court costs by either depositing in cash the sum of $9,000.00 with the Clerk of the District Court, or in lieu of such cash deposit to furnish a bond in said amount. Relator then filed an affidavit of his inability to pay cash or post bond. Thereafter, Stone filed a contest to the affidavit. The contest was tried before Judge Vela, who, after considering the evidence developed at the hearing entered an order which sustained the contest. Relator failed to make the cash deposit or to file the bond within the time limited therefor, and his cause of action was then dismissed, with prejudice, by an order signed on March 16, 1976.

The power of the Court of Civil Appeals to issue a writ of mandamus is extremely limited. Such a Court may mandamus only to protect its own appellate jurisdiction, or to order a trial judge to proceed to trial and judgment. Tex.Rev.Civ.Stat. Ann. Arts. 1823 and 1824 (1964); Crofts v. Court of Civil Appeals for the Eighth Supreme Judicial District, 362 S.W.2d 101 (Tex.Sup.1962).

The writ of mandamus may not be utilized to protect or enforce potential jurisdiction of a Court of Civil Appeals. Only after appellate jurisdiction has been invoked and thus becomes active may a Court of Civil Appeals enforce or protect its jurisdiction by issuance of the writ. Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59 (1958). Our appellate jurisdiction in the present case has not become active; therefore, we are not empowered to proceed under Article 1823. If we have jurisdiction to issue the writ in the instant case, that jurisdiction must arise under Article 1824.

When the writ is issued to compel a court to proceed to trial and judgment in a cause, there must be a refusal to proceed and a clear legal duty to proceed. Gann v. Hopkins, 119 S.W.2d 110 (Tex.Civ.App.—San Antonio 1938, no writ). The writ may also issue to require the judge to remove any obstacle that would prevent a trial. Roberts v. Munroe, 193 S.W. 734, 739 (Tex. Civ.App.—Austin 1917, writ dism’d).

Relevant to the question of the jurisdiction and power of a Court of Civil Appeals to issue a writ of mandamus is the sufficiency of the relator’s petition. Texas courts require greater certainty of the pleadings in mandamus actions than is required in most other civil actions. Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.); McGuire v. City of Dallas, 151 S.W.2d 617 (Tex.Civ.App.—Waco 1941, writ dism’d, jdgmt cor.). Every fact necessary to show how that the relator is entitled to the relief sought must be set out in the petition clearly, fully, and unreservedly, by direct and positive allegations. Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146, 149 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). Mere opinions and conclusions recited in the petition for a writ of mandamus will be disregarded. Anderson v. Polk, 117 Tex. 73, 297 S.W.219 (1927). The petition for a writ of mandamus which fails to meet this stringent test of exactness will not invoke the jurisdiction of the tribunal petitioned to hear and determine the issues raised. The rule is not without reason. The writ is an extraordinary remedy and should not issue without careful, individual scrutiny of the facts alleged.

The only allegation in relator’s petition that is asserted as a ground for the issuance of the writ is:

“The Relator claims that said Order sustaining the Contest to the Relator and Plaintiff’s Affidavit to establish his status as a pauper is against the preponderance of the evidence established at said hearing and denies the Plaintiff his right of trial to a jury for his above stated cause of action.” (Emphasis supplied).

It has long been the rule in Texas that mandamus will not lie to correct or control actions involving purely judicial discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956).

Although a writ of mandamus may issue to compel the exercise of discretion, the writ will not issue to compel the exercise in a particular way. While mandamus will lie to correct a clear abuse of discretion, the action complained of must amount to “fraud, caprice, or by a purely arbitrary decision, and without reason.” King v. Guerra, 1 S.W.2d 373 (Tex.Civ.App.—San Antonio 1927, writ ref’d). When the writ of mandamus is sought to correct a clear abuse of discretion by the trial judge, the judicial function should be limited to an inquiry as to whether there was any controversy over the facts or conditions on which the judge acted or which he could properly consider. Maresca v. Marks, 362 S.W.2d 299 (Tex.Sup.1962). If there is a reasonable doubt concerning the existence or nonexistence of facts or conditions on which the action was predicated, the courts are powerless to revise or disturb the action. On the other hand, if the fact situation is such in which there is no room for the exercise of discretion, the action of the trial court is subject to control by mandamus. Womack v. Berry, supra.

In the case at bar, the allegations in relator’s petition recognize that a genuine controversy exists as to whether he is entitled to the benefit of a pauper’s oath. His allegation that the order sustaining the contest to his affidavit is against the preponderance of the evidence, by implication, admits that there were facts which would authorize Judge Vela to enter the order that he did. There is no allegation that the judge failed to exercise discretion in the matter. Judge Vela, according to the petition, had discretion in the matter. He exercised that discretion, and there are no facts alleged in the petition which indicate a clear abuse of discretion for which a writ of mandamus might issue.

The relator first argues that this Court has the power to issue the writ of mandamus under the holdings in Burleson v. Rawlins, 174 S.W.2d 979 (Tex.Civ.App.—Dallas 1943, no writ), and Van Benthuysen v. Gengler, 100 S.W.2d 116 (Tex.Civ.App.—Galveston 1936, no writ). Those eases are not in point. In each ease, it was determined that the trial court’s order which sustained the contest to the pauper’s oath was a clear abuse of discretion, the effect of which was tantamount to a refusal by the trial court to proceed to trial. That is not the case here.

The relator also relies upon the cases of Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.Sup.1968); Hannah v. Walker, 409 S.W.2d 949 (Tex.Civ.App.—Dallas 1966, no writ); Wright v. Peurifoy, 260 S.W.2d 234 (Tex. Civ.App.—Dallas 1953, no writ); Carlisle v. Wilson, 103 S.W.2d 434 (Tex.Civ.App.—Galveston 1937, no writ), to support his argument that he has properly invoked the jurisdiction of this Court to issue the writ of mandamus under the provision of Article 1824. We do not agree. Those cases are cases where each relator sought to prosecute an appeal from the judgment of the trial court without payment of costs or furnishing a bond in lieu thereof. As already stated, our appellate jurisdiction has not become active with respect to the orders made by Judge Vela.

Whether or not the orders sought to be set aside are against the preponderance of the evidence cannot be resolved in a mandamus action. The exercise by Judge Vela of his judicial discretion in the matter is not subject to review in this proceeding, an original action for mandamus in this Court.

The petition for mandamus is DENIED.


author: PER CURIAM.

text:
    W. D. BENJAMIN, Appellant, v. NEAR EAST RUG COMPANY, INC., and Tadross Brothers, Appellees.
    Supreme Court of Kentucky.
    March 26, 1976.
    Michael R. McMahon, Louisville, for appellant.
    William B. Cohen, Louisville, for appel-lees.
   PER CURIAM.

Near East Rug Company, Inc., and Ta-dross Brothers filed separate actions against W. D. Benjamin in an effort to collect accounts due them. The actions were subsequently consolidated. Interrogatories were served upon Benjamin on October 8,1973, by Near East and on August 19, 1974, by Tadross. Benjamin neglected to respond to the interrogatories and made no motion seeking a protective order or an extension of time within which to comply. On March 4, 1974, counsel for Benjamin had filed a statement in the record that he could not obtain Benjamin’s answer because he was ill. Near East and Tadross made a motion on October 28, 1974, requesting that the answer of Benjamin be stricken and that a default judgment be entered against him for the amounts owing. The trial court granted the motion, struck the answer, and entered a default judgment.

Benjamin claims upon appeal that CR 37.04 is not applicable and that the ruling of the trial court is arbitrary, being without a finding that Benjamin’s failure to answer was “without good cause.”

CR 33.01 requires that interrogatories be answered within thirty days, while CR 37.04 provides that if answers are not served the trial court may strike the answer of the offending party and enter a default judgment.

While it is true that Benjamin made a motion for an extension of time on November 4,1974, he had already lost his “rabbit’s foot” by his unreasonable delay and apparent calculated disregard of the Civil Rules. A trial court has wide discretion in applying the penalties provided by CR 37.04, and unless there is a clear abuse of this discretion this court will not disturb the order of the trial court. Cf. Naive v. Jones, Ky., 353 S.W.2d 365 (1961).

The judgment is affirmed.

All concur.


text:
    Ray WREN and Alice Wren, Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Appellee.
    Supreme Court of Kentucky.
    March 26, 1976.
    James F. Clay, Jr., Clay & Clay, Danville, for appellants.
    W. R. Patterson, Jr., Thomas M. Cooper, Landrum, Patterson & Dickey, Lexington, for appellee.
   PER CURIAM.

Alonzo Allender was at fault when his car collided with that of Alvin Wren’s. Al-lender’s liability insurance carrier paid $10,-000 to the estate of Alvin Wren and $10,000 to Mae Willard, a passenger in Wren’s car. Since the policy contained a liability limitation of $10,000 per person and $20,000 per accident, there were no funds left to satisfy the claims of appellants, other passengers in Wren’s car. Appellants brought this action against Wren’s uninsured motorist carrier, Ohio Casualty Insurance Company.

The trial court granted a summary judgment in favor of Ohio Casualty on the simple proposition that Allender, in carrying the minimum amount of liability insurance required by KRS 187.330(3), was not an uninsured motorist. We concur. Appellants contend that the terms of the uninsured motorist policy, which admittedly precludes recovery, are in conflict with KRS 304.20-020(2) which provides that “uninsured motorist vehicle” includes “ * * * an insured motor vehicle to the extent that the amounts provided in the liability coverage applicable at the time of the accident is denied by the insurer writing the same.” (our emphasis) Appellants insist that when the liability carrier refused to pay appellants’ claims it denied the amounts provided in the policy. We do not accept this interpretation.

We find no merit in other arguments advanced by appellants.

The judgment is affirmed.

All concur.