author: EVANS, Justice.

text:
    Don GARDNER, Appellant, v. Horace JONES, Appellee.
    No. 17045.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 3, 1978.

      Robert J. Barr, Houston, for appellant.
    Thurlow & Hennessy, Thomas N. Thur-low, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a judgment entered after the defendant had answered but had failed to appear at trial.

The appellee, Horace Jones, alleged the conversion by Gardner of a produce stand and other personal property. Jones claimed damages of $2,000.00 for the loss of the stand, $10,000.00 for loss of his business, and $25,000.00 as punitive damages.

Gardner, acting pro se, timely filed an answer alleging that he had sold the produce stand and equipment to Jones, who had failed to pay the total amount due on the agreed purchase price. Gardner alleged that after he had made repeated requests to Jones for payment of the balance due, he sought advice from the district attorney’s office and was advised that he could legally repossess the building and equipment. Gardner further alleged that he had tried to return the personal items found in the stand to Jones, but that Jones refused to accept the tendered items. Gardner denied that Jones had suffered any business loss because the produce stand was already “closed down” at the time of repossession.

The trial on the merits was held on July 5, 1977. Gardner was not present at the trial. After hearing the evidence, the trial court awarded judgment to Jones in the amount of $4,000.00, and a motion for new trial was filed on Gardner’s behalf. The trial court overruled this motion and Gardner appeals.

It is Gardner’s contention that his failure to appear for trial was not intentional nor the result of conscious indifference, but rather was due to a mistake on his part, that he has a meritorious defense to the action, and that Jones will not suffer undue delay or hardship by reason of a remand for trial.

At the hearing on Gardner’s motion for new trial, he testified that he had first received a request for trial setting filed by Jones’ counsel, notifying that the case would be set for June 20, 1977. After receiving a second request for setting for July 5, 1977, Gardner went to the office of the deputy district clerk in the court in which the case was pending, and asked which date he was supposed to appear for trial. The clerk advised him that he “would be notified when to appear,” and he advised the clerk that he intended to represent himself in the proceedings. He had previously been involved in a criminal proceeding which arose out of the instant transaction, and in that case he had been notified to appear by a “document” served through the constable’s office. He testified that after he talked with the civil district clerk concerning the instant case, he assumed that he would be notified in the same manner. He was familiar with the procedure for setting cases for trial in the civil district courts in Harris County, and he did not draw any distinction between the practices of the civil and the criminal district courts. He was in fact available to appear for trial during the weeks of June 20 and July 5, and if he had known the ease would be called for trial, he would have appeared. On July 7, after receiving a card in the mail informing him that a $4,000.00 judgment had been entered against him, he contacted his present counsel.

The same rule is applicable to motions for new trial which seek to set aside judgments entered on the failure of the defendant to appear for trial as those which have been entered on the failure of the defendant to file an answer. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966).

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

Where the facts demonstrate that the defendant’s failure to appear for trial was due to some misunderstanding on his part, the first test of Craddock is met. Ivy v. Carrell, supra; O’Hara v. Hexter, 550 S.W.2d 379, 382 (Tex.Civ.App.-Dallas 1977, writ ref’d n. r. e.); Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex.Civ.App.-Dallas 1977, writ ref’d n. r. e.); Baen-Bec, Inc. v. Tenhoopen, 548 S.W.2d 799 (Tex.Civ.App.-Eastland 1977, no writ). In the case before the court, the record affirmatively shows that Gardner’s failure to appear for trial was due to his mistaken belief that he would receive further notification concerning the date upon which he was to appear. His actions do not support the conclusion that his failure to appear for trial was due to his intentional failure or to a conscious indifference.

The second requirement set forth, in Craddock is that the defendant’s motion for new trial must “set up” a meritorious defense by allegations supported by affidavits or other evidence which establish a prima facie defense to the plaintiff’s action. Ivy v. Carrell, supra; Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 513 S.W.2d 110, 112 (Tex.Civ.App.-Dallas 1974, no writ).

In his motion for new trial, Gardner alleged that during the month of June, 1974 he had agreed to sell a portable building and air cooler to Jones for use as a produce stand. The purchase price for this property was $1500.00, of which amount Jones paid $1200.00 in cash and agreed to pay the balance within thirty days. Gardner alleged that Jones had failed to pay the balance when due, and despite repeated demands, Jones had failed to either pay the balance or to return the property. On October 3,1974, Gardner repossessed the property with the assistance of third parties, and thereafter he offered to allow Jones to reclaim the property in return for the balance of the purchase price. He also had offered to permit Jones to have possession of various small items of personalty which were in the portable building at the time of repossession, but Jones had refused to take these items. Additionally, Gardner alleged that certain items of personal property allegedly converted by him were in fact the property of Jones’ father and had been reclaimed by him. Gardner also alleged that the produce stand was not in operation or open for business at the time of the repossession and that Jones had therefore suffered no loss of business.

The property in question had been unconditionally delivered to Jones, and he was entitled to retain possession of the property, notwithstanding the fact that he still owed a portion of the purchase price. Gardner was a mere creditor, without a lien, and he had no right to seize Jones’ property for the purpose of discharging the claimed indebtedness. Werkheiser-Polk Mill Co. v. Langford, 51 Tex.Civ.App. 224, 115 S.W. 89 (Austin 1908, no writ); Jones v. City National Bank, 166 S.W. 442 (Tex.Civ.App.-Fort Worth 1914, no writ). The factual allegations of Gardner’s motion for new trial do not establish that the repossession was legally justified, either at common law or under the provisions of the Texas Business & Commerce Code.

Where property has been converted, the owner is generally under no obligation to take it back upon a tender by the wrongdoer. Holland v. Lesesne, 350 S.W.2d 859, 865 (Tex.Civ.App.-San Antonio 1961, writ ref’d n. r. e.). Thus, Gardner’s allegations that he offered to permit Jones to reclaim the property in return for the payment of the balance of the purchase price do not establish a defense to the action for conversion. Neither is a defense shown by the allegations that certain properties belonged not to Jones, but to Jones’ father. There may be a conversion even where the person in possession does not have title to the property, so long as he has the right to immediate possession. Christian v. First National Bank, 531 S.W.2d 832, 841 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n. r. e.).

The allegations of Gardner’s motion for new trial do, however, establish a meritorious defense to part of the plaintiff’s claim for damages. Gardner alleged that he had repossessed the property in question on the basis of advice which he had received from the district attorney’s office. Punitive damages may not be awarded where the defendant acts in a good faith belief that he was exercising some right. Cantrell v. Broadnax, 306 S.W.2d 429, 433 (Tex.Civ.App.-Dallas 1957, no writ). The mere showing that the defendant withheld the converted property from the plaintiff will not support an award of exemplary damages. Allison v. Singh, 366 S.W.2d 822 (Tex.Civ.App.-El Paso 1963, writ ref’d n. r. e.). Thus, Gardner’s motion for new trial sets up a meritorious defense with respect to the matter of exemplary damages, and since the trial court’s judgment may have included an award of exemplary damages, a meritorious defense to that claim would require a reversal and a remand for further proceedings.

Under the third requirement of Craddock, a motion for new trial must be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. The record reflects that Gardner’s motion for new trial was filed eight days after the rendition of final judgment and that a hearing on the motion was held 17 days later. It thus appears that the motion was filed and presented within a permissible period of time. Leonard v. Leonard, 512 S.W.2d 771 (Tex.Civ.App.-Corpus Christi 1974, writ dism’d); Abercia v. First National Bank, 500 S.W.2d 573 (Tex.Civ.App.-San Antonio 1973, no writ).

The judgment of the trial court is reversed and the cause is remanded.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    TEXAS INDUSTRIAL ACCIDENT BOARD et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 5904.
    Court of Civil Appeals of Texas, Waco.
    Aug. 3, 1978.

      John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Robert S. Bickerstaff, Jr., Asst. Atty. Gen., Jim R. Weaver, Asst. Atty. Gen., Austin, for appellants.
    Noley R. Bice, Jr. and Maurice G. Walton, Haley, Fulbright, Winniford, Bice & Davis, Waco, for appellee.
   HALL, Justice.

Under the provisions of section 12c-2 of Article 8306, Vernon’s Ann.Tex.Civ.St., workmen’s compensation insurance carriers are relieved of making payments into the Second Injury Fund when the total amount of the Fund “equals or exceeds $250,000.00 in excess of existing liabilities,” until the amount in the Fund is thereafter reduced below $125,000.00. The single question in this case is whether the term “existing liabilities” as used in the statute means only finally determined claims against the Fund, or whether it also means and includes undecided claims filed against the Fund. Contending for the more restrictive connotation, appellee Allstate Insurance Company brought this suit against appellants Texas Industrial Accident Board and The Second Injury Trust Fund for a determination of the question. On Allstate’s motion, summary judgment was rendered in its favor holding that the term “existing liabilities” in the statute means only liabilities that are “due and owing.” This appeal resulted. We reverse the judgment.

In sections 12c and 12c-l of Article 8306, Vernon’s Ann.Tex.Civ.St., provision is made for payment of workmen’s compensation from The Second Injury Fund as follows:

“Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the ‘Second Injury Fund,’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries. Provided further, however, that notice of injury to the employer and filing of a claim with the Industrial Accident Board as required by law shall also be deemed and considered notice to and filing of a claim against the ‘Second Injury Fund.’
“Sec. 12c-l. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury; provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as ‘Second Injury Fund,’ hereafter defined.”

Then, in section 12c-2 of Article 8306, the creation and funding of the Second Injury Fund is set forth in the following terms:

“Sec. 12c-2. The special fund known as the ‘Second Injury Fund’ shall be created in the following manner:
“(a) In every case of the death of an employee under this Act where there is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the full death benefits, but not to exceed 360 weeks of compensation, as provided in Section 8, of Article 8306, Revised Civil Statutes of Texas, 1925, as amended, to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof.
“(b) When the total amount of all such payments into the Fund, together with the accumulated interest thereon, equals of exceeds Two Hundred Fifty Thousand Dollars ($250,000) in excess of existing liabilities, no further payments shall be required to be paid to said Fund; but whenever thereafter the amount of such Fund shall be reduced below One Hundred Twenty-Five Thousand Dollars ($125,000) by reason of payments from such Fund, the payments to such Fund shall be resumed forthwith, and shall continue until such Fund again amounts to Two Hundred Fifty Thousand Dollars ($250,000) including accumulated interest thereon.”

The summary judgment in question was rendered upon the following facts: On October 26, 1975, appellee Allstate Insurance Company was the workmen’s compensation insurance carrier for the Lone Star Motel. On that day an employee of Lone Star Motel named William Edgar Dempsey sustained an accidental injury while in the course of his employment which resulted in his death on December 4,1975. At the time of Mr. Dempsey’s death no person survived him who was entitled to compensation under the provisions of the workmen’s compensation insurance laws of our State. Later, on February 8, 1977, appellant Texas Industrial Accident Board, after having determined there was no one entitled to benefits as the result of Mr. Dempsey’s death, rendered an award wherein Allstate was ordered to pay to The Second Injury Trust Fund the sum $7,895.64. However, on December 12, 1975, deposits in the Fund reached an amount in excess of $250,000.00. The Fund was not thereafter reduced below $125,000.00 at any time pertinent to this lawsuit.

On December 12, 1975, when the Fund exceeded $250,000.00 in deposits, only a single claim then existing against the Fund had been finally determined. The balance due on that claim at that time was $2,192.02. Even with that claim deducted from the Fund, the amount on deposit in the Fund still exceeded $250,000.00. However, at that time there were six claims pending against the Fund which had not been finally determined as valid which totaled $84,573.35, plus a seventh undecided claim for 30% of total and permanent benefits for which no amount is specified in our record. After Allstate filed its motion for summary judgment the parties stipulated in writing (solely for the purpose of the hearing on the motion) that the ultimate payment of the seven claims “would have reduced the sums on deposit in said Fund below $250,000.00”; that the $7,895.64 award against Allstate by the Board for the Fund “is in all things fair and reasonable”; and that “should the term ‘existing liabilities,’ as that term is used [in the statute in question] be construed to mean claims pending against The Second Injury Fund as well as liabilities previously determined to be owed, then [Allstate] agrees that it owes to The Second Injury Fund the full amount of the Industrial Accident Board’s award.”

As we have said, the trial court held that the term “existing liabilities” in the statute means only claims that have been finally decided. Accordingly, in the summary judgment, the Board’s ruling and award against Allstate was set aside, and it was ordered that the Fund and the Board take nothing against Allstate. - The Board and the Fund brought this appeal asserting that the term in question means and includes claims filed against it which have not been finally decided as valid claims for payment.

It has been said that the words “liabilities” and “indebtedness” may be deemed “accordion words” capable of expanding and contracting in their connotations, and that they may mean present, current, future, fixed or contingent debts. Erickson v. Grande Ronde Lumber Co., 162 Or. 556, 92 P.2d 170, 174 (1939). While the word “liabilities” includes debts, “it is not generally limited to [that meaning]. In common speech, in contracts, and in judicial decisions, it is frequently used, and has been referred to as of the most comprehensive significance, inclúding almost every character of hazard or responsibility, absolute, contingent, or likely.” Wentz v. State, 108 Neb. 597, 188 N.W. 467, 468 (Neb.Sup.Ct.1922). And, “existing liabilities” has been held to be “a sufficiently broad and comprehensive term to embrace conditional or contingent obligations, which may or may not in the future result in indebtedness.” Daniels v. Goff, 192 Ky. 15, 232 S.W. 66, 68 (1921); International-Great Northern R. Co. v. Texas Co., 280 S.W. 282, 285 (Tex.Civ.App.—Austin 1926, writ ref’d). Cf. 25 Words And Phrases (Perm.ed.1961), pp. 50 et seq.

In Reconstruction Finance Corporation v. Gossett, 130 Tex. 535, 111 S.W.2d 1066, 1073 (1938) the Court stated that the words “debt” and “liability” as used in our Constitution and statutes are defined in a general, and not in a restricted sense. It said, “It seems from the authoritative definitions of the two words ‘debt’ and ‘liability’ that the word ‘liability’ has a more comprehensive meaning than the word ‘debt.’ Webster defines ‘liability’ as follows: ‘That which one is under obligation to pay, or for which one is liable.’ ” The Court then quoted from the case of Cochran v. United States, 157 U.S. 286, 296, 15 S.Ct. 628, 632, 39 L.Ed. 704 (1895), as follows: “We know of no definition of the word ‘liability,’ either given in the dictionaries or as used in the common speech of men, which restricts it to such as are absolúte, or excludes the idea of contingency. In fact, it is more frequently used in the latter sense than in the former, as when we speak of the liability of an insurer or a common carrier, or the liability to accidents or to errors.”

The Second Injury Fund was enacted by the Legislature to limit liability for second injuries in order to encourage the employment of persons physically handicapped by previous injuries. Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671, 672 (1950). The Court observed in that case that, “Obviously, an employer would be discouraged from employing such persons if he knew that under the law his insurer would become liable in the event of a second injury for the disability resulting from the combined effect of two injuries, and not merely for the disability resulting from the second injury considered alone.”

Our Workmen’s Compensation Law is a remedial statute which should be liberally construed with a view to accomplish its purposes, to promote justice, and to protect the employee. Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 394 (1946). In the light of this rule, and considering the purpose of The Second Injury Fund, we believe the term “existing liabilities” in the statute in question was intended by the Legislature to include claims filed with the Fund which have not been finally approved for payment. Stated another way, we hold that a claim filed with the Fund is an existing liability of the Fund within the meaning of the statute until the claim has been finally determined to be invalid. A contrary construction could endanger the capacity of the Fund to respond when its liabilities are finally determined and thereby jeopardize the purpose for which it was created; whereas, the interpretation we make can in no way prove harmful to insurers like Allstate, for, as the Supreme Court explained in Miears v. Industrial Accident Board, supra, under The Second Injury Fund Act the insurers remain liable only for the compensation payable for the second injury considered alone, and the Fund is therefore “made up of sums which, except for this statute, would be windfalls to insurers.”

Appellants’ asserted claims against the Fund were established by their answers to written interrogatories propounded by Allstate. As previously stated, Allstate conceded the truth of those claims solely for the purpose of the hearing on its motion for summary judgment. Appellants did not move for summary judgment, and they ask here only that we remand the case for trial on the merits. Accordingly, the judgment is reversed and this cause is remanded to the trial court.


author: McDONALD, Chief Justice.

text:
    D & D ASSOCIATES, INC., Appellant, v. SIERRA PLASTICS, INC. d/b/a Texas Plastics Industries, Appellee.
    No. 5915.
    Court of Civil Appeals of Texas, Waco.
    Aug. 3, 1978.
    Rehearing Denied Sept. 7, 1978.
    Charles W. Holt, Jr., Law Offices of Ralph M. Hall, Rockwall, for appellant.
    Bob Burleson and Geoffrey A. FitzGer-ald, Bowmer, Courtney, Burleson & Pem-berton, Temple, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff D & D from an order granting defendant Sierra’s plea of privilege.

Plaintiff D & D sued defendant Sierra in Coryell County seeking compensation for plaintiff’s personal property which was in defendant’s custody, and which was destroyed by fire in defendant’s plant in Cor-yell County. Defendant filed plea of privilege to be sued in Midland County, the county of its residence. Plaintiff controverted asserting venue maintainable in Cor-yell County under Subdivision 9a and 23, Article 1995 VATS. The trial court granted defendant’s plea of privilege and ordered the case transferred to Midland County.

The record establishes and the trial court found:

Defendant is a resident of Midland County; but operated a plant in Coryell County which was destroyed by fire September 15, 1977.

The parties made an oral agreement prior to the fire for defendant to manufacture plastic water meter boxes for plaintiff. Pursuant to such agreement plaintiff furnished defendant with plans and specifications and paid defendant to make a mold to be used by defendant to manufacture the meter boxes; at an agreed price per box; defendant constructed the mold at its Cor-yell County plant and used it to make the meter boxes. And pursuant to the agreement plaintiff furnished defendant raw materials to make the meter boxes, which when made were shipped by defendant at plaintiff’s direction to plaintiff’s customers. The parties agreed defendant would be liable for the mold if it was destroyed thru defendant’s negligence; and at termination of the meter manufacturing agreement defendant was to return the mold to plaintiff. There was no agreement as to liability for the raw materials. The mold and raw materials not converted to meter boxes were in defendant’s plant when it was destroyed by fire. Defendant notified plaintiff of the fire; plaintiff requested compensation for the materials lost in the fire; defendant has not compensated plaintiff. There is no evidence of negligence of defendant or its employees causing the fire.

The trial court concluded that no bailment existed; that the parties having agreed defendant would be liable for loss of the mold only if defendant were negligent expressly rebuts any presumption of negligence; that presumption of negligence was rebutted by proof the loss was caused by fire, and plaintiff proving no negligence failed to prove a cause of action under Subdivision 9a or 23, Article 1995 in Coryell County.

Plaintiff appeals on 19 points which we summarize into 3 contentions.

Contention 1 asserts the trial court erred in concluding that no bailment existed as to the mold and unused raw materials.

The elements of a bailment are: 1) delivery of personal property from one person to another in trust for a specific purpose with a contract express or implied that the trust will be carried out and the property returned or duly accounted for to the bailor. Bell v. Ramsey, (Waco, Tex.Civ.App.) NWH, 284 S.W.2d 244; 8 Am.Jur.2d p. 906.

A further characteristic of a bailment is the obligation of the bailee to restore the subject of the bailment in the same or an altered form or to account therefor. 8 Am. Jur.2d p. 920.

And a bailment may be defined as delivery of goods for some purpose on a contract, express or implied, whereby after the purpose has been fulfilled, the goods are to be redelivered to the bailor or dealt with according to his directions. 7 Tex.Jur.2d p. 713.

And broadly speaking, every bailment contract contemplates return of the property bailed, either in the same or altered form, or its delivery to a third person with the express or implied consent of the bailor. 8 C.J.S. Bailments pp. 455, 456.

The undisputed facts establish that while plaintiff and defendant made a contract that defendant manufacture meter boxes for shipment to plaintiff’s customers; nevertheless, the contract required defendant to return plaintiff its mold at the conclusion of the manufacturing agreement; and required defendant to transfer the raw materials into meter boxes and ship same to plaintiff’s designees. Under the rules, supra, a bailment existed as to the mold and the unfabrieated raw materials.

Contention 1 is sustained.

Contention 2 asserts the trial court erred in concluding that any presumption of negligence is rebutted by the oral contract.

The parties agreed defendant would be liable for the mold if it be lost or destroyed by defendant’s negligence. Such agreement does not rebut any presumption of negligence. Parties may by contract enlarge or limit the liability of the bailee by law, but the parties’ contract here did not enlarge or limit such liability.

Contention 2 is sustained.

Contention 3 asserts the trial court erred in concluding that the presumption defendant was negligent was rebutted by proof of loss by fire.

It has long been the law in Texas that in bailments for mutual benefit as here, that when a bailor proves property is delivered to the bailee in good condition and the bailee fails to return it in such condition, that a rebuttable presumption of negligence on the part of the bailee exists, and that the bailor has established a prima facie case of liability. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157.

But such presumption of negligence disappears and does not exist when evidence is adduced the bailed property was destroyed in a fire and in such situation the burden is on the bailor to establish negligence on the part of the bailee. 7 Tex.Jur.2d p. 755. Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133.

Plaintiff asserts that the presumption of defendant’s negligence does not disappear by a showing of fire and that such exception no longer exists in Texas, citing Buchanan v. Byrd, Tex., 519 S.W.2d 841; Classified Parking Systems v. Dansereau, (14 Houston, Tex.Civ.App.) NWH, 535 S.W.2d 14; and Jalco, Inc. v. Tool Traders, Inc., (1 Houston, Tex.Civ.App.) NWH, 535 S.W.2d 898.

The rule that the presumption of negligence disappears when a showing is made that the bailed property was destroyed by fire, thus requiring the plaintiff to prove negligence by bailee, was announced in Texas as early as 1883 in T & P Ry. Co. v. Morse, Tex.Civ.App., 1 White & Civ.Cas.Ct.App. § 411 p. 183. See also 44 ALR3d p. 185 which lists 17 Texas cases so holding.

We review some of the cases:

Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Com.App., supra in 1924, in a bailments for mutual benefit case, holds: that “when the warehouse company showed that the cotton had been destroyed by fire, it then relieved itself of showing the fire was not caused by its negligence, but that the burden then rested on plaintiff to show that the fire was the result of negligence of the warehouse company or its employees”.

Tubbs v. American Transfer & Storage Co., (Dallas, Tex.Civ.App.1927) Er. Refused 297 S.W. 670, a mutual benefit bailment case, holds in action by bailor against bailee for goods lost by fire, the burden of proof rested on bailor to prove negligence on the part of bailee.

Minerva Mercantile Co. v. Cameron Compress Co., (Austin, Tex.Civ.App.1929) Er. Refused, 15 S.W.2d 62, a mutual benefit bailment case, holds in action by bailor against bailee for goods lost by fire, bailor had burden of establishing defendant’s negligence.

Callihan v. Montrief, (Fort Worth, Tex. Civ.App.1934) Er. Refused, 71 S.W.2d 564 in a case of bailment for exclusive benefit of bailee reaches a contrary result, but expressly holds “If the bailment had been for the joint benefit of [parties] * * [the decision of the Commission of Appeals in Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, supra] would have been controlling”.

Mustang Aviation, Inc. v. Ridgway, (Dallas, Tex.Civ.App.1950) Er. Refused, 231 S.W.2d 677, a mutual benefit bailment case, citing Schulze holds “in suits on contracts of bailment for hire, where the property is lost or damaged by fire or theft, no presumption of negligence is imputed to the bailee, and that the burden of proof to show bailee’s negligence resulting in such loss or damage, rests on the bailor.”

Keel v. Kilgore Transfer & Storage Co., (Texarkana, Tex.Civ.App.1951) Er. Refused, 238 S.W.2d 738, a mutual benefit bailment case, holds plaintiff bailor must establish negligence on the part of bailee when it was proved that bailed property was destroyed in a fire.

Trammell v. Whitlock, 1951, 150 Tex. 500, 242 S.W.2d 157, in a case involving a cargo trailer which was returned to the bailor in damaged condition, resulting from a wreck, applied the general rule that the bailor makes a prima facie case of defendant’s negligence when he establishes bailed property not returned or returned in a damaged condition, rejected extension of the fire exception to that case; but expressly reaffirmed the fire exception as established in Schulze and Mustang Aviation, but limited application of such exception to fire cases.

Irish v. Virdell, (Austin, Tex.Civ.App. 1964) Er. Refused, 379 S.W.2d 935, a mutual benefit bailment case, holds when bailor proves property was delivered to bailee in good condition and bailee fails to return it in similar condition, a presumption of negligence of bailee exists, but when bailee proves the property was destroyed by fire, the burden shifts to bailor to prove negligence on the part of bailee.

McElroy v. General Texas Asphalt Company, (Waco, Tex.Civ.App.1968) NRE, 427 S.W.2d 719, a mutual benefit bailment case, holds that when the bailee shows that the bailed property is destroyed by fire, the burden is on bailor to establish negligence on the part of bailee.

In 1975 our Supreme Court in Buchanan v. Byrd, supra, in a case involving bailment loss of a horse which got out of the bailee’s pasture and was killed, cited Trammell v. Whitlock, supra, as controlling, and rejected application of the so-called “fire and theft” exception to the loss of the bailed horse, and further stated:

“The rule applied in Texas in fire and theft cases is contrary to the weight and trend of modern authorities. * * *. We are convinced that the rule should be reexamined in an appropriate case instead of extending its application to other types of bailment losses”.

Following and citing Buchanan the 14th (Houston, Tex.Civ.App.1966) in Classified Parking Systems v. Dansereau, 535 S.W.2d 14, NWH, a “theft” case, rejected the “fire and theft” exception, and held that showing a theft of the bailed property did not destroy the presumption of bailee’s negligence when he failed to return the bailed property-

And later in 1966 the 1st (Houston, Tex. Civ.App.) NWH, in Jalco, Inc. v. Tool Traders, Inc., 535 S.W.2d 898, a “theft” case citing Buchanan and Dansereau made a like holding.

Dansereau and Jalco, both theft cases, are obviously correct since our Supreme Court in Trammell v. Whitlock, supra, expressly limited the exception to cases of destruction of the bailed property by fire.

The exception is already limited to “fire” cases, and we are reluctant to reject it in such cases in mutual benefit bailment cases, when it has been expressly approved by our Supreme Court, Commission of Appeals and by 6 “Error Refused” cases.

Contention 3 is overruled.

AFFIRMED.


author: McCLOUD, Chief Justice.

text:
    Gordon MARTIN, Appellant, v. MANN MERCHANDISING, INC., Appellee.
    No. 5172.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 3, 1978.
    Rehearing Denied Aug. 31, 1978.

      Marvin G. Shwiff, Shwiff, Caraway & Emerson, Dallas, for appellant.
    William R. Allensworth, Haynes & Boone, Dallas, for appellee.
   McCLOUD, Chief Justice.

This is a summary judgment case. Plaintiff, Gordon Martin, sued defendant, Mann Merchandising, Inc., plaintiffs former employer, seeking severance and vacation pay. Plaintiff alleged that defendant represented to him that its policy was to pay one week’s severance pay for each year of service and two weeks’ vacation in the event his employment with defendant was terminated. Plaintiff pleaded he had been employed under an oral agreement for a period of more than eleven years and upon termination he was paid only one half of the severance and vacation pay he was entitled to receive.

The trial court granted defendant’s motion for summary judgment and plaintiff has appealed. We reverse and remand.

Severance pay is usually associated with termination of the employment relationship for reasons generally beyond the control of the employee, and its purpose is to assure a worker whose employment has terminated certain funds while he seeks another job. 40 A.L.R.2d 1045.

Plaintiff stated in his affidavit opposing summary judgment that he was employed by defendant for eleven years and during that period he learned that defendant paid one week’s severance pay for each year of service. He said he was furnished a copy of a memorandum showing that this was the policy of the company and he personally knew of other sales managers who were terminated and given their severance pay. Plaintiff’s affidavit further provided:

“. . .1 never thought I was going to be fired, but certainly from my knowledge of their company policy and my knowledge that other sales managers received their severance pay, I believe that I would receive such same as the others and knowing that I must have and did consciously rely upon receiving same. I did all my work and I expected the company to perform all its obligation. Everyone who left the company before me received at least 1 week’s severance pay for every year of service, and I was the only one who did not receive same.”

By deposition plaintiff testified that no officer or anyone with the company ever orally told him he would receive one week’s severance pay for each year he worked. Plaintiff answered that he did not discuss it with anyone because he never planned on leaving. This testimony establishes that there was no express contract but plaintiff urges there was a contract implied in fact. Plaintiff stated he first learned of the alleged severance pay policy after he became a regional manager. This was about a year or a year and a half before he was terminated. While being questioned about two regional managers who had received severance pay after being terminated by defendant, plaintiff stated he did not personally know how their severance pay was calculated, but one of the managers told him it was “very, very generous”. Immediately following this answer, plaintiff was asked the following questions and he gave the following answers:

“Q That didn’t have anything to do with your decision to take the job as Regional Manager?
A No; this happened after I had been Regional Manager.
Q Didn’t have anything to do with whether you stayed on as Regional Manager, did it?
A No.
Q So, this was just something else like extra salary? If it went up, that was great; is that right?
A Give me that again, please?
Q That didn’t have anything to do with whether you went to work for the company?
A When I go to work for a company, I plan on staying ’til I’m dead.”

Defendant contends the answers by plaintiff conclusively establish that he did not rely upon the alleged offer of severance pay. We disagree. Plaintiff clearly stated in his affidavit he did so rely. Plaintiff’s answers, if contradictory, created a fact issue. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.— San Antonio 1951, writ ref’d). Moreover, we think “reliance” by the employee is not significant in a case of this nature. We find no Texas case in point, however, in Anthony v. Jersey Central Power & Light Co., 51 N.J.Super. 139, 143 A.2d 762 (1958), when confronted with the argument there was no evidence that the employees relied upon the promise of severance pay in continuing their employment, the court, after holding that reliance was presumed, stated:

“As was said in a different context in Diamond v. Davis, 62 N.Y.S.2d 181, 194 (Sup.Ct.1945):
‘Employees have the right to place reliance upon the full performance of every authorized act and plan for employee benefit and welfare, such as group life insurance, retirement allowance, bonus, managers shares, and any other incentive offers. Every benefit firmly offered or authoritatively fixed for an employee or official which in the course of fair dealing and reasonable conduct should be rightfully expected may be regarded as part of or a just increment to the compensation payable for the work, labor or service performed or to be performed in a specified period.’
The employer obviously cannot evade liability for one of the proffered items of compensation after the employee has performed his labor by showing that the employee would have taken the job without the particular benefit in question and therefore cannot be said to have relied upon it in doing the work.
It makes no difference that the severance pay plan was promulgated after the plaintiffs had been employed for some time by defendant. Since the employment was always at will, any announcement of a change in or addition to the compensation of the employees of any form followed by the continuance of the employees in employment constituted an effective and binding agreement at the new terms for the service rendered thereafter. Consequently, once defendant improved the terms of compensation for plaintiffs’ work by announcing the institution of the severance pay plan it must be assumed that plaintiffs were thereafter working for that benefit as much as for any other benefit or item of compensation held out to them as compensation by the employer.
Suppose, instead of the institution of the severance pay plan, the employer had of its own volition announced a 10% increase in the salary of the plaintiffs. Could the defendant have thereafter repudiated its assumed obligation for the increase at the end of a pay period by the argument that plaintiffs had not relied thereon because they would have continued in their jobs even if the increase had not been announced? The question answers itself and also the defendant’s contention here.”

The Supreme Court of Oklahoma in Dangott v. ASG Industries, Inc., 558 P.2d 379 (1976), a severance pay case, cited the quoted language from Anthony v. Jersey Central Power & Light Co., supra, and added:

“Admittedly the facts in the Jersey case show the plans sought to be enforced were distributed and communicated to all employees. This difference or distinction does not destroy the principles of law enunciated. Employees at will are entitled to additional compensation or benefits under any policy, because continuance in service after such policy change effects a binding agreement under the terms of the new policy.”

See also: Hinkeldey v. Cities Service Oil Company, 470 S.W.2d 494 (Mo.Sup.1971); Cain v. Allen Electric & Equipment Company, 346 Mich. 568, 78 N.W.2d 296 (1956); 56 C.J.S. Master and Servant § 87; 53 Am. Jur.2d Master and Servant § 81.

We find out of state authority which discusses and appears to require reliance by the employee; however, the existence of severance pay being a matter of contract between the parties, we hold that the question of reliance is not significant. We think the proper rule was announced in Hercules Powder Co. v. Brookfield, 189 Va. 531, 53 S.E.2d 804 (1949), wherein the court held that the question to be determined was whether an offer had been made by the employer which was accepted by the employee. The court said:

“Plaintiff insists that the offer or promise made by defendant that payment of dismissal wage or salary would be made was contained in reasonably sufficient terms and the consideration to be rendered by an employee was his continued satisfactory service with the company for the period or periods mentioned in the offer. Performance of the condition imposed, he asserts, is a full and complete acceptance of the offer.
With this we agree. Through and by compliance with the terms of the offer, plaintiff necessarily had to and did forego his right to seek and accept other employment and affirmatively met all conditions imposed by rendering service to the defendant for the period and until the specified time.
Ample authority sustains the view that such a promise amounts to an offer, which, if accepted by performance of the service, fulfills the legal requirements of a contract.”

Marine Inspection Serv., Inc. v. Alexander, 553 S.W.2d 185 (Tex.Civ.App.—Houston (1st Dist.) 1977, no writ), relied upon by defendant is clearly distinguishable. First, the case merely held there was no evidence the company agreed that the employee would be entitled to a paid salary in lieu of vacation time. Second, the language cited in Alexander, supra, from 53 Am.Jur.2d, Master and Servant, §§ 76 & 78 deals with compensation for extra or overtime work. The case is not concerned with a contract providing for severance pay.

The instant case is a summary judgment case. Defendant must establish as a matter of law by summary judgment proof that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Defendant has failed to fullfil its burden. Defendant has failed to conclusively establish that no contract implied in fact existed between the parties as urged by plaintiff.

The judgment of the trial court is reversed and the cause is remanded.


author: CORNELIUS, Chief Justice.

text:
    The MORRIS COUNTY NATIONAL BANK, Appellant, v. R. B. STOVALL, Jr., Appellee.
    No. 78-69.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 8, 1978.
    Norman C. Russell, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellee.
   CORNELIUS, Chief Justice.

Appellant has presented to us a transcript and a motion to allow its late filing. The record reveals that the judgment below was rendered on December 14,1977. Motion for new trial was filed on December 20, 1977, and was originally set for determination by the court on January 27, 1978. The motion was not acted upon at that time, however, and on February 3,1978, being the 45th day after the filing of the motion for new trial, appellant and appellee filed a written agreement providing that the date for “hearing” the motion for new trial would be extended to February 24, 1978. No action was taken on that day. By a second agreement dated on that day, but not filed until March 10, 1978, the appellant and ap-pellee again agreed to extend the date for “hearing” the motion for new trial, this time until March 20, 1978. The court did not act on the motion at that time; but on March 21, the 91st day after the filing of the motion, the court entered an order overruling it.

Rule 329b, Tex.R.Civ.P., provides in part as follows:

“3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.
“4. ... In the event an original motion ... for new trial be not presented within thirty (30) days after the date of the filing thereof, . such motion will be overruled by operation of law forty-five (45) days after the same is filed, ... In the event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this rule then any such original or amended motion, if not determined by the court, will be overruled by operation of law ninety (90) days after the same is filed or on the latest day certain agreed upon, whichever occurs first.”

Unless the day for its decision was extended to a day not more than 90 days from its filing, the motion for new trial would have been overruled by operation of law on February 3,1978, the 45th day after its filing. The parties’ agreement, filed on that day, extended the date for “hearing” said motion to February 24, 1978. Our Supreme Court has expressed doubt as to whether extending the date for hearing a motion for new trial, as distinguished from the date for the decision of such motion, is effective to extend the time under the provisions of Rule 329b. Texas Employers’ Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961); see also Texas Pac. Indem. Co. v. Building Material Dist., Inc., 502 S.W.2d 922 (Tex.Civ.App. Dallas 1973, no writ); Kolb v. Central Freight Lines, Inc., 456 S.W.2d 561 (Tex.Civ.App. Waco 1970, no writ). Even if the agreement was effective to extend the date of decision to February 24, the motion was not acted upon and was overruled by operation of law at that time. Rule 329b, Sec. 4, Tex.R.Civ.P. The second extension agreement shows to have been dated on February 24, 1978, and had it been filed then, it might have been effective to further extend the date of decision (although it also only purported to extend the date of “hearing” rather than the date of decision), but the agreement could not become effective until it was filed on March 10. See Texas Employers’ Insurance Association v. Martin, supra. As the motion for new trial had already been overruled by operation of law at that time, both the second extension agreement and the court’s order of March 21 were nullities. It follows that the transcript must have been filed within 60 days from February 24,1978 (on or before April 25, 1978), unless a motion under Rule 21c, Tex.R.Civ.P., was filed within 15 days after that date, which would have been May 10, 1978. Appellant’s Rule 21c motion was not filed in this Court until May 30. Consequently, this Court has lost jurisdiction of the appeal, appellant’s motion must be overruled, and the cause must be dismissed.

IT IS SO ORDERED.

ODEN, J., not participating.


author: J. CURTISS BROWN, Chief Justice.

text:
    The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant, v. J. R. STEELE, Appellee.
    No. 1781.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 9, 1978.
    Rehearing Denied Aug. 30, 1978.

      Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Forrest G. Braselton, Nacogdoches, Edward T. McFarland, Lufkin, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a verdict and judgment for the appellee in his suit to recover benefits under a group health and life insurance policy.

John L. Steele (Steele) served as Executive Vice President of Canal Rental Tools, Inc. (Canal) from 1971 until his resignation, effective September 30, 1973. Following Steele’s resignation from that position, he and Canal agreed that he would be paid according to the amount of work that he performed for Canal. Steele died on March 23, 1975 after a brief period of hospitalization. Steele’s brother, J. R. Steele (appel-lee), timely demanded the benefits of Canal’s group health and life insurance policy issued by the Mutual Life Insurance Company of New York (appellant). The appellant timely refused to pay the medical, hospital and death benefits and returned the premiums that Canal had paid to obtain coverage for Steele from September 30, 1973 through March 1975, asserting that Steele was not a covered employee under Canal’s group policy at the time of his death. The appellee, acting in his individual capacity as beneficiary of the life insurance benefits and in his capacity as representative of Steele’s estate, sued the appellant to obtain the benefits under the group policy. In its appeal from a verdict and judgment that Steele was a full-time employee covered by the group policy and entitled to benefits thereunder at the time of his death, the appellant has assigned twelve points of error.

Special issue 1, which was answered in the affirmative, inquired whether Steele was a full-time employee of Canal at the time of his death. The appellant contends, in its first point of error, that the trial erred in overruling its motion for directed verdict and for judgment non obstante ve-redicto because there was no evidence to support an affirmative finding to special issue 1. In point 2, the appellant argues, similarly, that the trial court erred in submitting that issue to the jury because there was no evidence to support an affirmative finding thereto.

In determining Steele’s status as a full-time employee under the group insurance policy, we must look to the language of the policy itself. Gallup v. St. Paul Insurance Company, 515 S.W.2d 249 (Tex.Sup.1974). The relevant portions of the policy issued by the appellant read as follows:

DEFINITIONS
continuous service An employee’s period of uninterrupted full-time employment by the employer. .
employee insurance Insurance provided under this Policy for an employee with respect to himself.
class eligible for employee insurance All employees of the employer who are employed on a full-time basis. .
An employee shall be deemed to be employed on a full-time basis if, and only if, his normal work week for the employer is 30 or more hours. .
DATE OF TERMINATION OF EMPLOYEE INSURANCE
An employee will cease to be insured for any employee insurance on the first of the following to occur:
(a) The date of termination of the employee’s service in the class eligible for such employee insurance. .

We construe the above-quoted language to mean that all full-time Canal employees are covered by the group insurance policy. A person is a full-time employee, as that term is defined in the policy, if he works 30 or more hours per week for Canal. His status as a full-time employee of Canal does not terminate unless he stops working 30 or more hours per week for Canal.

In considering the appellant’s argument that there was no evidence to support a finding that Steele was an employee of Canal at the time of his death, we must review the evidence in the light most favorable to the jury’s finding, considering only the evidence and inferences which support the finding and rejecting the evidence and inferences contrary thereto. Rourke v. Garza, 530 S.W.2d 794 (Tex.Sup.1975). The following facts were either stipulated or testified to at trial: While Steele was serving as Executive Vice President of Canal, he was paid a salary from which Canal made the “usual payroll deductions.” Although Steele’s salary was terminated and Canal stopped making payroll deductions for him when he resigned from that position, Steele and Canal entered into an agreement under which Steele would be paid for work that he performed for Canal. After his resignation as Executive Vice President, Steele continued to devote “far in excess of 30 hours per week” for the betterment of Canal until his death on March 23, 1975. At the time of his death, Steele was listed on Canal’s records as an officer and employee of that company. Canal submitted Steele’s name to the appellant as a full-time employee and paid premiums to obtain insurance coverage for him under the group insurance policy each month through March 1975.

Although conflicting evidence was presented at the trial, the evidence was clearly sufficient to support a finding that Steele was a full-time employee, as that term was defined in the group policy, from 1971 through September 30, 1973. There was also ample evidence that Steele continued to work more than 30 hours a week for Canal even after his resignation as Executive Vice President and, thus, that his status as a full-time employee of Canal did not terminate after that date. It follows that there was sufficient evidence to support the jury’s finding that Steele was an employee of Canal at the time of his death on March 23, 1975. The trial court did not err, therefore, in submitting special issue 1 to the jury and refusing to grant the appellant’s motion for directed verdict and motion for judgment non obstante veredicto.

In its eleventh point of error, the appellant complains of the trial court’s refusal to submit to the jury the following requested definition of the term “employee”:

You are further instructed that to constitute one an employee there must exist between the parties the relation of master and servant in the broad sense that the one has the right of ultimate control and direction over the other. The relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done.

This requested definition might have been appropriate had the group insurance policy not defined the class eligible for employee insurance to include all those whose “normal work week for the employer is 30 or more hours.” When the terms of an insurance policy are clear and unambiguous, those terms may not be disregarded, but must be enforced as written. Bright v. New York Life Ins. Co., 546 S.W.2d 145 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n. r. e.). A trial court should not modify the terms of an unambiguous policy when instructing the jury, therefore, but should follow the terminology contained in that policy. International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938); Travelers Ins. Co. v. Cox, 86 S.W.2d 844 (Tex.Civ.App.-EastIand 1935, no writ). We hold, accordingly, that the trial court did not err in refusing to give a requested definition of “employee” that was inconsistent with the definitions contained in the group insurance policy written by the appellant.

The appellant asserts, in points 3, 6 and 10, that the trial court erred in submitting special issues 1, 2, 5 and 6 because the evidence was factually insufficient to support their submission. These points are without merit. A court may not properly refuse to submit special issues merely because the evidence is factually insufficient to support affirmative findings thereto. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

The appellant contends, in its fourth point of error, that the trial court erred in denying its motion for directed verdict and motion for judgment non obstante veredicto because there was no evidence that an authorized representative of the appellant modified the group policy to provide coverage for Steele and because such coverage could not be created by waiver or estoppel. The verdict and judgment were not dependent upon findings that the group insurance policy was modified to provide coverage for Steele or that such coverage was created by waiver or estoppel, but rested upon the finding that Steele was a full-time employee of Canal at the time of his death. Our holding that there was sufficient evidence to support that finding obviates this point. Special issues 2 through 6 inquired whether authorized representatives of the appellant represented to Canal that Steele would be covered by the group insurance policy and whether Canal relied upon that representation, whether the appellant accepted premium payments for a class of employees that would include Steele, whether the appellant designated Canal to determine which persons would be deemed insured under the policy, and whether Canal designated Steele a covered employee under the policy. In points 5, 7, 8 and 9, the appellant argues that the trial court erred in submitting special issues 2 through 6 to the jury because those issues were irrelevant and because the evidence adduced at trial was legally insufficient to support their submission. In point 12, the appellant complains that the submission of special issues 2 through 6 constituted reversible error because their submission confused and misled the jury.

Even if we were to sustain points 5, 7, 8 and 9, we could not reverse the judgment and order a new trial unless we think that the trial court’s error amounted to such a denial of the rights of the appellant as was reasonably calculated to and probably did cause the rendition of an improper judgment. Holmes v. J. C. Penney Company, 382 S.W.2d 472 (Tex.Sup.1964); Tex.R.Civ.P. 434. The only question before the jury in this case was whether Steele was a full-time employee of Canal at the time of his death. We have already held that there was sufficient evidence to support the jury’s finding that he was. We do not believe, and the appellant has not asserted, that the jury would have made a contrary finding had special issues 2 through 6 not been submitted. The error of the trial court in submitting special issues 2 through 6, if any, was harmless. Holmes v. J. C. Penney Company, supra; Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943); Houston Lumber Supply Company v. Wockenfuss, 386 S.W.2d 330 (Tex.Civ.App.-Houston 1965, writ ref’d n. r. e.). Points 5, 7, 8, 9 and 12 are therefore overruled. We find it unnecessary to consider the questions raised by those points concerning the relevancy of special issues 2 through 6 and the legal sufficiency of the evidence to support affirmative findings thereto, and we express no opinion thereon.

The appellant’s points of error having been overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


text:
    Robert Raymond BELITZ, Appellant, v. Lana J. SEEKATZ et vir., Appellees.
    No. 5823.
    Court of Civil Appeals of Texas, Waco.
    Aug. 10, 1978.
    Rehearing Denied Aug. 31, 1978.

      Sally L. Ray and Robert N. Udashen, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, for appellant.
    William F. Stolhandske and Randall B. Richards, Stolhandske, Simmons & Stol-handske, San Antonio, for appellees.
   HALL, Justice.

Judgment was rendered terminating the parent-child relationship between appellant Robert Raymond Belitz (hereinafter referred to as “defendant”) and his minor son, Bobby Ray Belitz. Defendant appeals. We affirm the judgment.

Mrs. Lana J. Seekatz is the natural mother of the child. Defendant Belitz is the natural father. The child was born during their marriage. They were later divorced. Mrs. Seekatz and her present husband, Fred H. Seekatz (hereinafter “plaintiffs”) filed this suit on October 7, 1976, to terminate the parent-child relationship between defendant and the child, and for adoption of the child by Mr. Seekatz, alleging as grounds for the termination that defendant failed to support the child in accordance with his ability during a period of “six years” ending within six months of the date of the filing of the petition, and that the termination was in the best interest of the child.

Defendant answered plaintiffs’ suit on November 1, 1976, alleging that since November, 1969, he had been continuously incarcerated in jail and in the penitentiary without income; and that, otherwise, he would have supported the child.

On December 7, 1976, plaintiffs filed an amended petition in which they again alleged as grounds for the termination that defendant failed to support the child in accordance with his ability during a period of “six years” ending within six months of the date of the filing of the petition, and that the termination is in the best interest of the child. Additionally, the amended petition contained these pleadings:

“And as further grounds for termination, Petitioners allege that [defendant] committed certain willful criminal acts and engaged in a course of conduct which implied a conscious disregard and indifference to his child in respect to his parental obligations and his imprisonment constitutes voluntary abandonment of this child.”

The case went to trial on December 13, 1976, on plaintiffs’ amended petition, and, after a hearing without a jury, judgment was rendered terminating the relationship of parent and child between defendant and the child. In support of the judgment, the court made and filed the following findings of fact:

1. Defendant knowingly engaged in conduct which endangered the physical and emotional well-being of the child.
2. Defendant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition for termination.
3. Defendant failed to support the child in accordance with his ability for a period of six years ending within six months of the date of the filing of the petition.
4. The termination would be in the best interest of the child.

Among other grounds set forth in V.T. C.A., Family Code § 15.02, for involuntary termination of the parent-child relationship, are provisions for terminating the relationship if the court finds that:

“(1) the parent has
(E) engaged in conduct which endangers the physical or emotional well-being of the child; or
(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
and in addition, the court further finds that
“(2) termination is in the best interest of the child.”

In Family Code § 11.08(b)(10) it it provided that the petition in a suit affecting the parent-child relationship must include a statement describing what action the court is requested to make concerning the child and “the statutory grounds on which the request is made.” Under defendant’s construction of that statute it is asserted that plaintiffs’ pleadings are not sufficiently specific to invoke the provisions of subsections (E) and (F) of Family Code § 15.02(1), and that, accordingly, the court’s findings based upon those subsections are not supported by pleadings. Particularly, defendant argues that because plaintiffs alleged non-support for “six years” he was not given fair notice required by Rule 47, Vernon’s Tex.Rules Civ.Proc., that he should be expected to defend against a claim of non-support for “one year” as provided in § 15.02(1)(F). Defendant did not except to plaintiffs’ petition. It is the rule that in the absence of special exceptions pleadings will be liberally construed in the pleader’s favor and to support the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 515 (1941). Plaintiffs’ pleading of “six years ending within six months of the date of the filing of the petition” necessarily included “one year” ending within the stated time. Absent exceptions to the pleading, we hold it sufficiently invoked the provisions of § 15.02(1)(F) and placed defendant on notice of that fact. However, we sustain defendant’s contention that plaintiffs’ pleadings do not set forth a claim for relief under § 15.02(1)(E).

Appellant asserts the evidence is legally insufficient to support the findings that he failed to support the child “in accordance with his ability” for the periods of either six years or one year ending within six months of the date of filing of plaintiffs’ petition. We agree with defendant on the six-year period, but we overrule his contention on the one-year term.

The evidence shows that defendant and Mrs. Seekatz were married in March, 1964. The child was born on December 24, 1967. Defendant would not work and support his family. When the child was four months old, defendant spanked him so hard “because he was crying and wouldn’t be quiet” that the child’s buttocks became “completely black and blue.” During a “violent argument” between Mrs. Seekatz and defendant in July, 1968, defendant grabbed her by the throat and began beating her. The child was on the floor, “watching it all and crying and screaming and afraid.” Neighbors called the police, and Mrs. Seekatz left the house “under police protection.” She and the child permanently separated from defendant at that time. Defendant did not thereafter contribute anything to the support of the child or Mrs. Seekatz, nor attempt any contact with the child. Mrs. Seekatz moved into the home of her mother and fourteen-year-old sister. Defendant continued living in the parties’ house, and later two women moved in with him. Defendant was employed at that time. In August, 1968, defendant stealthily entered the home of Mrs. Seekatz’s mother and assaulted the fourteen-year-old sister with his fists while she was asleep in bed. (While testifying defendant denied that his motive was rape, but he gave no reason for the assault). Mrs. Seekatz was not present at the time, but her mother came to the aid of the sister, and this altercation ended with defendant shooting at Mrs. Seekatz’s mother when she was trying to telephone the police. At the time of the shooting the child was being held by the sister and was crying hysterically. When Mrs. Seekatz separated from defendant in July, 1968, she filed suit for divorce. The divorce was granted in January, 1969. While the divorce action was pending, defendant was under court order to make child support payments, but he did not do so, even though he was employed during part of that period. In November, 1968, defendant was placed in jail on charges of first degree murder and two charges of attempted murder of police officers. He is now in the penitentiary on convictions of those three offenses, plus an additional offense of attempted jail break. He testified that the punishments assessed on the offenses were ordered to be served consecutively, that he is under a sentence of “2 to 198 years,” and that his first eligibility for parole consideration will be in January, 1981. Defendant was also charged with five armed robberies of liquor stores which he committed on the same day he committed the murder. Defendant was also convicted of theft while he and Mrs. Seekatz were married. Defendant has been continuously incarcerated since November, 1968, when he was placed in jail. At that time he was drawing $45.00 weekly for workmen’s compensation. When he was in jail, he settled the workmen’s compensation claim for $1,600.00. Neither the weekly benefits nor the settlement were used by defendant for support of the child or Mrs. Seekatz. He testified that he used the settlement to pay the fee of the lawyer who represented him on the workmen’s compensation claim, and to pay bills incurred while he was married to Mrs. Seekatz including $400.00 to his parents. During the two and one-half years immediately prior to the trial of this case, defendant had an income of $25.00 per month from the sale of paintings by him. He admitted that under penitentiary rules he is privileged to send the child letters, money, and gifts, but that he has never done so. His excuse for this failure was that Mrs. Seekatz’s parents had told him “she wouldn’t allow it.” He admitted, however, that he had never attempted to do so. He testified that he spends a part of the $25.00 monthly income for coffee, cigarettes, and toothpaste, and for incidental paint supplies. He estimated his net income over the 2½ year period to be closer to $400.00 than $750.00, but he admitted that his income has exceeded his expenditures. When asked how he “got along” prior to the time he began selling paintings, he said that his family then sent him $5.00 per month, but that prices on everything in the penitentiary have since “doubled.”

Of course, defendant’s basic necessities of food, shelter, bed, and .clothing while he is in the penitentiary are furnished by the State. The court, as trier of the facts, was justified under the proof in believing that during the 2½ years prior to trial defendant’s income exceeded his expenses by $10.00 to $15.00 per month. The court was also entitled to reject defendant’s excuse for failing to use this money for the welfare of the child, and to believe that the failure was based upon a wholly negative, disinterested, and irresponsible attitude toward the child by defendant which existed prior to defendant’s incarceration.

We hold the evidence is legally sufficient to support the finding that defendant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of plaintiffs’ petition.

Mr. and Mrs. Seekatz married on March 17, 1972. The evidence shows that the child and Mr. Seekatz love each other; that they “have a very natural relationship” of father and son, rather than one of stepfather and step-son; that the child believes Mr. Seekatz is his father and “looks to him as a father”; and that the child has never asked about his real father and does not know he is alive. This evidence and the proof of defendant’s violent nature, his lack of interest in the welfare of the child, and his present imprisonment under a long-term sentence, support the finding that the termination is in the best interest of the child.

As shown above, plaintiffs alleged as grounds for termination that defendant “committed certain willful criminal acts and engaged in a course of conduct which implied a conscious disregard and indifference to his child in respect to his parental obligations and his imprisonment constitutes voluntary abandonment of this child.” Plaintiffs assert those pleadings and an implied finding thereon are proved and supported by the evidence.

In Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.Sup.1976), the Court stated that the list of grounds set forth in Family Code § 15.02 for terminating the parent-child relationship “may not be an exclusive one.” Plaintiffs say it is not exclusive. They argue that their allegation that defendant voluntarily abandoned the child is an additional ground, not listed in the statute, which supports the termination order in question. Plaintiffs concede that a parent’s imprisonment does not per se constitute abandonment of his child, but they contend that when it results from the circumstances they have alleged and proved against defendant it is sufficient to support a finding of voluntary abandonment and severance of the parent-child relationship. They cite holdings in Hutson v. Haggard, 475 S.W.2d 330 (Tex.Civ.App.—Beaumont 1971, no writ); and Jordan v. Hancock, 508 S.W.2d 878 (Tex.Civ.App.—Houston [14th] 1974, no writ), which were decided under old Article 46a, Vernon’s Tex.Civ.St.

In view of our holding that the termination order was proper under § 15.02(1)(F) of the Family Code, we need not decide whether it is also supported by defendant’s pleading of “voluntary abandonment.” For the same reason, we do not decide the remaining questions raised by the parties and the record, including whether the issue upon which the court based its finding that defendant knowingly engaged in conduct which endangered the physical and emotional well-being of the child was tried by the defendant’s consent without pleadings under Rule 67, Vernon’s Tex.Rules Civ. Proc., and whether the evidence is legally sufficient to support that finding.

The judgment is affirmed.


author: PEDEN, Justice.

text:
    James H. QUARLES, Individually and as Trustee of the James H. Quarles Trust, Appellant, v. Taylor C. GREEN, Independent Executor of the Estate of E. W. Ogden, Deceased, Appellee.
    No. 17259.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 10, 1978.
    Rehearing Denied Sept. 7, 1978.

      James H. Quarles, pro se.
    Barrow, Bland & Rehmet, Charles J. Wilson, Houston, for appellee.
   PEDEN, Justice.

Appellees have filed a plea to the jurisdiction of this court over this cause, asserting that the appellant failed to timely file an appeal bond as required by Rule 356, Texas Rules of Civil Procedure. Appellant filed an affidavit in lieu of appeal bond, but the contests of it were sustained by the trial court. Appellees point out that appellant failed to file his appeal bond by June 3, 1978 (within thirty days after the overruling of the motion for new trial on May 4). We sustain the plea to the jurisdiction.

Appellant’s affidavit in lieu of the cost bond was dated May 19, 1978 and was mailed to appellee on May 22. This affidavit could not be located in the district clerk’s office, but the parties treated the affidavit as timely filed under Rule 356 (b). Appellees filed their contest on the affidavit on May 23.

The trial court sustained appel-lees’ contest on June 30. The court’s order recites that a hearing was held on June 26, and although appellant and his attorney were given notice as required by Rule 355, T.R.C.P., they failed to appear. At the hearing on the contest of the appellant’s affidavit, the burden of proof rests on the appellant to sustain the allegations of his affidavit. King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 336 (1956); Rule 355 (d), T.R. C.P. Since the appellant in our case failed to appear at the hearing and offer proof of his affidavit, the court had no alternative but to sustain the contest.

If the contest is sustained, the appealing party is required to file a cost bond within the time prescribed by Rule 356. Delay in acting on a contest of an affidavit in lieu of bond does not operate to extend the time for the filing of the bond. DeMiller v. Yzaguirre, 143 S.W.2d 425 (Tex.Civ.App. 1940, writ refused); King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 334 (1956); Wells v. Wells, 566 S.W.2d 124 (Tex.Civ.App. 1978, no writ); Johnson v. Barge, 552 S.W.2d 508 (Tex.Civ.App. 1977, writ ref. n. r. e.). This time for filing a cost bond has expired, and appeal has not been timely perfected under Rule 363, so this court has no jurisdiction. Wells v. Wells, supra at 125.

On July 6, 1978, the appellant in our case filed a motion to extend the time for filing the transcript, but by then this court had no jurisdiction over the attempted appeal.

Dismissed for want of jurisdiction.


text:
    Warren G. WELLS, Sr., Appellant, v. Mary A. WELLS, Appellee.
    No. 17199.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 10, 1978.
    Rehearing Denied Sept. 7, 1978.
    Warren G. Wells, Sr., pro se.
    Foster, Pope & Orsak, Logene L. Foster, Sugarland, for appellee.
   EVANS, Justice.

This involves a motion by the appellant, Warren G. Wells, Sr., acting pro se, for leave to file a writ of mandamus to require the court reporter of the 328th, Family District Court of Fort Bend County, Texas, to prepare and file the statement of facts taken during a divorce proceeding.

It appears that the final judgment of divorce was entered by the trial court on January 11, 1978, and that the appellant’s motion for new trial was overruled on February 17,1978. A contest of the appellant’s inability to pay costs of appeal was sustained by the trial court on March 30, 1978.

In his motion Mr. Wells states that the court reporter has refused to transcribe and file the statement of facts without an advance cash payment of $3,500.00 to $4,500.00 or the posting of a bond for like amount, and he contends that the judgment awards him the sum of $4,500.00 in cash which constitutes adequate security for the cost of preparing the statement of facts.

A court reporter may not refuse to deliver a statement of facts when an appeal bond or a proper exemption therefrom has been filed. City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.—Corpus Christi 1976, no writ). Thus, where the appeal bond is sufficient to cover preparation of the appellate record, a court reporter cannot insist on cash in advance as a condition to the transcription of the statement of facts. O’Brien v. Gibbs, 555 S.W.2d 199 (Tex.Civ.App.—Dallas 1977, no writ); McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

The problem in the present case is that an appeal bond was not filed on Mr. Wells’ behalf, and the time for filing a cost bond has passed. Rule 356, Tex.R.Civ.P. The filing of a pauper’s oath does not toll the appellate time table if the contest is sustained, and the appealing party is required to file a cost bond or to make a cash deposit within the time frame prescribed by Rule 356, Tex.R.Civ.P. Wells v. Wells, 566 S.W.2d 124 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ); Johnson v. Barge, 552 S.W.2d 508 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.).

“Rule 363 requires a careful eye. A cursory reading of the rule might lead one to believe that the mere filing of the affidavit in lieu of the bond would perfect the appeal, but this is so only when no contest is filed or when the contest is overruled. If the contest is sustained, then the appealing party is required to file a cost bond, and it must sill be filed within the time frame prescribed by Rule 356. Johnson v. Barge, supra.
Therefore, a person seeking to appeal on a pauper’s oath puts all his chips on the line. The affidavit must be filed within twenty days after rendition of judgment or order overruling the motion for new trial, but the opposing party has ten days after the giving of notice of such affidavit to file a contest. The court then sets the contest for hearing. So in most every instance, by the time there is a ruling on the contest, the time for filing a cost bond has expired, and, if the contest is sustained, the party attempting the appeal is out of court.” (566 S.W.2d 125-6)

The motion of Mr. Wells must be denied, and the appeal is ordered dismissed for want of jurisdiction.


text:
    SAFWAY SCAFFOLD CO. OF HOUSTON, INC., Appellant, v. SAFWAY STEEL PRODUCTS, INC., et al., Appellees.
    No. 17041.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 10, 1978.
    Rehearing Denied Sept. 7, 1978.

      Martin, Sperry & LeBoeuf, Jack R. Martin, Malcolm Williams, Houston, for appellant.
    Fulbright & Jaworski, David J. Beck, G. Mike Lawrence, Houston, for appellee Saf-way Steel Products, Inc.
    Green & Sims, Michael B. Lee, Houston, for appellee Swain Restoration Company, Inc.
   PEDEN, Justice.

Appeal by Safway Scaffold Company of Houston, Inc. (Safway Scaffold), original defendant and third-party plaintiff, from a judgment granted in favor of third-party defendants, Safway Steel Products, Inc. (Safway Products) and Swain Restoration Company, Inc. (Swain), on the appellant’s claims for indemnity and contribution. Safway Scaffold contends that the trial court erred in directing a verdict against its third-party claims when the original plaintiff rested and before Safway Scaffold had an opportunity to offer any evidence. Saf-way Scaffold did not appeal from a judgment rendered in favor of plaintiff Cichy based on the jury’s verdict. We reverse and remand the trial court’s granting of the directed verdicts.

Safway Scaffold leased staging equipment to Swain. Swain’s employees, George Cichy and Paul Hale, took it to Galveston, where they were to perform waterproofing work on the exterior of a four-story building. They placed 4 by 4 timbers on the roof, secured them and suspended the swing-type stage from these 4 by 4’s by steel cables. The stage was raised up the side of the building by manually operated winches.

On March 29, 1971, Hale and Cichy were working on this stage near the top of the building when the right end of the scaffold slipped, and they fell to the ground. Cichy testified that he “heard something slipping and something snapping and gears clanking, clanking, clanking, clanking, and when I dropped on the ground I don’t remember anything after that.” What he heard slipping was the cable — “the cable was either— either slipping and all I could hear was gears and like something was falling apart in the gear box. . . . Like something snapped and gave way.”

Cichy sued Safway Scaffold alleging failure to inspect, failure to warn, negligent maintenance of the equipment, strict liability for leasing a product that had been rendered unreasonably dangerous by the defendant’s failure to properly maintain, breach of implied warranty, strict liability based on defective design, and res ipsa lo-quitur.

Safway Scaffold filed a third-party action against Swain, lessee of the equipment and Cichy’s employer, for full indemnity based solely on the express indemnity provision on the back of the “Lease Agreement Contract-Delivery Order” signed by Cichy (a copy was attached to the petition).

Safway Scaffold also filed a third-party action against Safway Products, the manufacturer of the equipment, for indemnity or contribution alleging:

“If the said product was unreasonably dangerous as alleged by Plaintiffs, which is not admitted by this Third Party Plaintiff, then such condition constituted a breach of Third Party Defendant’s Warranty to Third Party Plaintiff, inasmuch as Third Party Plaintiff made no substantial change in the condition of the product after purchasing it from Third Party Defendant and Third Party Plaintiff is, therefore, entitled to be indemnified by Third Party Defendant for whatever sum it might ultimately be held liable to Plaintiffs.”
“In the alternative, Third Party Plaintiff says that if the above facts and circumstances do not give rise to a right of indemnity in its favor, . . . Third Party Plaintiff is entitled to legal contribution from Third Party Defendant against any judgment which might be rendered against it in favor of Plaintiffs.”

At the close of the plaintiff’s evidence, Safway Products moved for an instructed verdict, asserting that since the plaintiff had introduced no evidence of defective design, Safway Scaffold’s cause for indemnity and contribution failed as a matter of law. Swain moved for an instructed verdict and argued that the indemnity provision on the back of the rental ticket was not clear and unequivocal, that Cichy had no authority to bind Swain, that appellant did not plead apparent authority and that the indemnity provision was inconspicuous. The trial court granted both motions, and appellant stated its objections.

The “Budget Swing” stage in question could not be located for examination by the plaintiff, but pursuant to a discovery order of the court, Safway Scaffold furnished the plaintiff a “Budget Swing identical to the one made the basis of this lawsuit.” (emphasis added). That Budget Swing was examined by a Mr. Meek for an independent testing laboratory, and he was the only expert witness whose testimony was offered by the plaintiff. Since the winch he inspected was not the one that is the subject of this litigation, it had no scored or misaligned or bent parts that would enable him to state positively what caused any failure of the winch. He testified at length, however, about possible causes based on design deficiencies. He pointed out that the primary safety device of the winch is the spring-loaded pawl that keeps the ratchet from unwinding. The spring is anchored only by its one end that is bent at a right angle, and he noted that the one he inspected has slipped out of its engagement hole slightly so that its bent end now extends only nine one-hundredths of an inch into that hole. If it slides further, it may become disengaged and that safety device will fail. The witness also testified that the manual bar that acts as a brake in the cog wheel will bend and become loosely attached in ordinary use and then it can easily miss the safety stop.

Swain argues that there was no evidence that George Cichy had authority to execute the indemnity agreement on behalf of Swain. Paul Swain, the owner of Swain Restoration Company, testified that he did not give Cichy, a superintendent or job supervisor, authority to indemnify Safway Scaffold against any damages sustained. Ordinarily, a person in this type of position cannot bind his employer by signing a broad indemnity contract. Rourke v. Garza, 530 S.W.2d 794, 804 (Tex.1975). Both Paul Swain and George Cichy were cross-examined by appellant, but no evidence of authority was shown.

Appellee Swain also contends that the hold-harmless clause is ineffective because it did not state in unequivocal terms that Swain would indemnify Safway Scaffold against acts of its own negligence or against its distribution of a defective product.

“We have, in fact, progressed toward the so-called ‘express negligence’ rule as near as judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the indemnitee harmless from liability for his own negligence.” Fireman’s Fund Ins. Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818, 822 (Tex.1972); Rourke v. Garza, supra.

The provision in our case states:

“The LESSEE agrees to indemnify Company against, and hold harmless Company from, any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees, asserted by any person, firm or corporation arising out of, or connected with the erection, maintenance, use or possession of said equipment.”

This language is not clear and unequivocal and does not afford sufficient notice that the indemnitee will be protected against its own negligence. Joe Adams & Son v. McCann Constr. Co., 475 S.W.2d 721, 725 (Tex.1971). It does not specifically mention indemnity against distribution of a defective product.

Fair notice also required that the provision be conspicuous. Goodyear Tire & Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 919 (Tex.1978). As in K & S Oil Well Service, Inc. v. Cabot Corp., 491 S.W.2d 733 (Tex.Civ.App., writ ref. n. r. e.), the provision in our case appeared on the back of the rental form, was surrounded by unrelated terms in small and light type, and was not conspicuous.

In determining whether error was committed in directing a verdict, due consideration should be given to the organic right of trial by jury. 75 Am.Jur.2d 486, Trial § 467 (1974). We have found no case and none has been cited to us in which a third-party defendant’s motion for directed verdict was granted before the third-party plaintiff had an opportunity to offer evidence. The granting of the motions at that time was contrary to the provisions of Rule 265, Texas Rules of Civil Procedure, stating the order in which the trial of cases before a jury shall proceed unless otherwise directed by the court for good cause.

A motion for directed verdict may be granted only when the movant is entitled to prevail as a matter of law, a circumstance that rarely occurs before the non-movant has had an opportunity to offer evidence. The trial court, without passing upon the credibility of the witnesses, accepts as true all evidence which, when liberally construed in favor of the adverse party, tends to support such adverse party’s contention (as to the truth of the fact propositions on which he relies or the falsity of those urged by the movant); indulges every reasonable inference which can be drawn in favor of such opponent’s position from the evidence; and discards all contradictory evidence favorable to the movant. 3 McDonald, Texas Civil Practice 235, Jury Trial, General § 11.28.2 (1970).

The position of the appellees in our case, that the trial judge’s granting of their motions was correct, is based on the appellant’s narrow allegations against them and on the proof offered before the plaintiff rested. Although the appellant had no opportunity to offer evidence, its attorney did cross-examine what would appear to be the key witnesses concerning appellant’s claim against Swain. We find no basis, however, for preventing the appellant from offering additional evidence in support of its third-party pleadings or cutting off any opportunity to amend those pleadings and offer evidence to raise jury issues, regardless of whether any had been raised when the original plaintiff rested. We cannot say that no such evidence or amendment could be offered, although it is difficult to envision any concerning the claim against third-party defendant Swain. In other words, we believe the appellees were not entitled to prevail, because .the state of the appellant’s pleadings and of the evidence offered by the- original plaintiff was not such as to establish as a matter of law either 1) the absence of the appellant’s right to indemnity or contribution or 2) an insuperable barrier to its right to such relief. The appellant had not made judicial admissions that would foreclose its right to proceed.

It is well established that neither contribution nor indemnity can be recovered from a party against whom the injured party has no cause of action. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.1964, writ ref. n. r. e.); Patterson v. Tomlinson, 118 S.W.2d 645 (Tex.Civ.App.1938, writ ref.). It does not necessarily follow that the appellant in our case should be foreclosed from offering evidence that the original plaintiff has a cause of action against the appellees.

The incident in question happened on March 29, 1971, more than two years before the effective date of Article 2212a, V.T. C.S. , so Article 2212 governs any party’s rights to contribution and indemnity.

The rules did not authorize the trial court to render the judgment against the third-party plaintiff in this case before it had an opportunity to present evidence and rest its case. The judgment and the statement of facts clearly show that the trial court did not allow the appellant to present any evidence at the trial and that the appellant duly objected to this action, so there is no necessity for a bill of exception. Oertel v. Gulf States Abrasive Manufacturing, Inc., 429 S.W.2d 623 (Tex.Civ.App.1968, no writ).

Appellate review of directed verdicts is limited to a consideration of the evidence that had been adduced when the motion was granted and does not involve review of all the evidence in the case. Holloway v. Har-Con Engineering Co., 563 S.W.2d 695 (Tex.Civ.App.1978, no writ); cf. Pope v. Clary, 161 S.W.2d 828 (Tex.Civ.App.1942, writ ref. w. o. m.).

Reversed and remanded.


text:
    LONE STAR GAS COMPANY, a Division of Enserch Corporation, Appellant, v. Beatrice McGUIRE, Appellee.
    No. 5906.
    Court of Civil Appeals of Texas, Waco.
    Aug. 10, 1978.
    Gene C. Jarmon, Robert E. Pritchard, C. Clint Adams, Frank H. Cathey, III, Dallas, for appellant.
    Mac L. Bennett, Jr., Bennett & Bennett, Normangee, Michael Thomas, Thomas & Sibley, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Lone Star from $25,000. judgment awarded plaintiff McGuire, in suit for damages to her land.

Plaintiff McGuire sued defendant Lone Star for damages to 45 acres of plaintiff’s land allegedly caused by defendant’s employees draining an 18 inch pipeline. Plaintiff alleged negligence in draining the pipeline resulted in salt, oil, gas and chemicals from the line covering 45 acres of her improved pasture, killing the coastal and common bermuda grass and permanently injuring the soil, to her damages of $46,000.

Defendant answered by general denial. Trial was to a jury which found:

1) The damage to plaintiff’s land was proximately caused by defendant’s negligence on February 9, 1976.
2) $25,000. will reasonably compensate plaintiff for the damage to her land. The trial court instructed the jury “ * * * If you find damage to [plaintiff’s] land is permanent, then you will find the difference in the reasonable cash market value of her land immediately before the incident and the reasonable cash market value of her land immediately after the incident in question. If you find the damage to her land is temporary, then you will find the cost to restore her land to the condition it was immediately before the incident in question, plus an amount for the loss of use of her land from February 9, 1976 to the present date”.
“ * * * the term ‘Permanent’ * * does not mean perpetual or forever, but you are instructed that if you believe * * * the productivity of the soil has been impaired or destroyed, then * * the injury would be permanent in nature * * * the term ‘Temporary’ * * * means any degree of damage which you find to be less than permanent.”

The trial court rendered judgment on such verdict for plaintiff for $25,000.

Defendant appeals on 3 points:

1) “The trial court erred in rendering judgment for plaintiff because the verdict of the jury to special issue number ‘one’ is against the great weight of the evidence”.
2) “The trial court erred in refusing to set aside the verdict of the jury to special issue number ‘one’ because the verdict of the jury is against the greater of the evidence”.
3)“The trial court erred in refusing to set aside the verdict of the jury to special issue number ‘two’ because the verdict is arbitrary, capricious and without support in the evidence submitted”.

Plaintiff owns 154 acres of land in Leon County. The acreage here involved is 45 acres on the north portion of the property, adjacent to and north of a separating plant owned by defendant. A leak developed in defendant’s 18 inch line leading to the separator; to repair the leak defendant’s employees on February 9, 1976 drained a 3½ mile section of the pipe which had a pressure of over 400 pounds per square inch; drainage was by use of a “blow-off” valve located at the separator; defendant’s employee opened the valve “all the way, and never shut it off”; it took 40 minutes to an hour to empty the contents of the line; a brisk wind was blowing from the south; contents of the line, oil, salt water and methane blew onto 45 acres of plaintiff’s improved pasture, killing coastal and common bermuda grass; defendant’s supervisor Salmon testified defendant’s employees did not drain the blow-off valve properly; that proper procedure would have been to open the valve and then close or squeeze it back slowly; Salmon knew substances in the pipeline could damage land; oil, gas and salt water which settled on plaintiff’s land was from the pipeline; Salmon told plaintiff’s son the land was damaged; that he would get a claim agent out to the location; the black liquid killed all vegetation on 45 acres; 67 head of cattle were in the pasture; and could not be continued there; 25 cows had to be sold at a loss of $100. per cow; the land is a “buoy loam sand soil”; has 6 to 8 inches of topsoil under which is a subsoil level of a clay sand and soil with high iron concentration and has very slow permeation; the salt from defendant’s pipeline permeated by leaching through the sand topsoil but is trapped and held tight by the clay at the 6 to 8 inch' depth; weeds can grow in the topsoil, but coastal and common bermuda grass have roots 30 to 40 inches long which go into the subsoil level and the salt kills the grasses; prior to the damage of February 9, 1976 plaintiff’s land was worth $600. to $800. per acre, after such damage it is worth $100. per acre; to make coastal bermuda grow again on the property will take $350. to $400. per acre, plus $100. per acre for a period of 5 years.

There is ample evidence to support the jury’s answers to Issues 1 and 2, and such findings are not against the great weight and preponderance of the evidence. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant’s points are overruled.

AFFIRMED.