author: CLAYTON, Justice.

text:
    Francelle Ventura HARRIS, Individually and as Independent Executrix of the Estate of George Ventura, Appellants, v. Angeline VENTURA, Appellee.
    No. 8194.
    Court of Civil Appeals of Texas, Beaumont.
    March 8, 1979.
    Rehearing Denied April 6, 1979.

      John Delaney, Bryan, for appellants.
    Kent A. Caperton, Bryan, for appellee.
   CLAYTON, Justice.

Appellee, plaintiff below, Angeline Ven-tura, brought this suit against Francelle Ventura Harris, individually and as Independent Executrix of the estate of George Ventura, deceased, to recover her community share of certain property included in the estate of George Ventura, her deceased husband. Appellants, Francelle Ventura Harris and George Paula Ventura, are the children of the decedent by a prior marriage. Appellants defended on the ground that their father’s will left them his entire estate, and that the property claimed by ap-pellee had constituted their father’s separate estate. This suit is to determine the character of property included in the estate of the decedent and to determine the respective rights and duties of a surviving widow and children by a previous marriage. The properties involved in this appeal are certain certificates of deposit, bank checking and savings accounts.

Trial was to the court and findings of fact and conclusions of law were filed, and judgment was entered for appellee in the sum of $2,229.95 and decreed that appellants were vested with fee simple title to the real property owned and occupied as his homestead, “but that with respect to such property [appellee] shall have the obligation to . pay . . .all real property taxes assessed against such property and all expenses of upkeep and maintenance . for so long as she occupies such property as her homestead.”

George Ventura and appellee, Angeline Ventura, were married in 1968. George Ventura died on January 1, 1975, leaving a will devising all of his property to his children, appellants. The will was admitted to probate, and Francelle Harris was appointed and qualified as independent executrix.

Among the items of property possessed by George and Angeline Ventura on January 1, 1975, were the following:

1. Checking account at University National Bank in College Station, Texas $4,997.51
2. Checking account at City National Bank in Bryan, Texas 466.35
3. Savings account at City National Bank in Bryan, Texas 687.52
4. Savings account at Reliance Federal Savings & Loan, St. Louis, Missouri 5,087.23
5. Family homestead, Bryan, Texas, encumbered by a purchase money mortgage

Appellants in their first two points urge error by the trial court in finding that appellants failed to overcome the communi-. ty property presumption as to $4,997.51 on deposit in a checking account in the University National Bank. Appellants argue that the evidence conclusively established that the maximum possible amount of community funds contained in the account and all other funds were separate property, and that such a finding is contrary to the great weight and preponderance of the evidence.

The trial court found that this account consisted of a mixture of George Ventura’s separate property, some community property, and certain funds of unexplained origin. The court concluded that appellants had failed to overcome the community property presumption as to this account and awarded appellee a one-half community share in the amount of $2,498.76.

The applicable rules of law are well established. The Supreme Court in McKinley v. McKinley, 496 S.W.2d 540 (Tex.1973), reiterates the basic presumption, as stated in Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965), that all property possessed by a husband and wife when their marriage is dissolved is their community property. This presumption is clearly stated in Tex. Fam.Code Ann. § 5.02 (Vernon 1975). It is the general rule that to discharge the burden imposed by the statute a spouse, or someone claiming through a spouse, must trace and clearly identify property claimed as separate property. See Tarver v. Tarver, supra; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947); Chapman v. Allen, 15 Tex. 278, 284 (1855). It is further well settled that when the evidence shows that separate and community properties have been so commingled as to defy resegregation and identification, the burden is not discharged, and the statutory presumption prevails. Tarver v. Tarver, supra; Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955).

The testimony with reference to this account is clearly outlined, step by step, beginning with the amount in the account on April 12, 1974, and traced each deposit and withdrawal. Such facts appear in the record and have not been challenged in any manner by appellee. Therefore, they are accepted as being correct. Tex.R.Civ.P. 419. On April 12, 1974, the account balance was $460.15. It is presumed that this sum was community property. The next deposit was in the sum of $7,825.79 on April 16. This deposit was admitted to have been the proceeds of the sale of real property owned by George Ventura prior to his marriage to appellee. The next deposit was $1,174.62 on July 2. This included the sum of $878.63 which was admittedly inherited by deceased. Other deposits made between April .12,1974, and January 1,1975, were deposits of interest and that the total of the interest deposits and the beginning balance was $1,339.63; that all other money placed in the account was George Ventura’s separate property. This testimony given as to the deposits in the account was not disputed or contradicted. There was a total amount of withdrawals during this same period in the amount of $5,046.54.

There was no attempt made to contradict any of the above facts. Appellants have clearly traced and identified the funds in this checking account in the sum of $3,657.88 as deceased’s separate property. Thus, appellants met the burden of tracing their father’s separate property as it was received and retained in the account. The separate funds did not lose their identity, although separate and community properties were commingled, since the trial court was able from the evidence to determine accurately the interest of each estate. Lindsey v. Lindsey, 564 S.W.2d 143 (Tex.Civ.App.—Austin 1978, no writ); In re Marriage of Tandy, 532 S.W.2d 714, 717 (Tex.Civ.App.—Amarillo 1976, no writ); New-land v. Newland, 529 S.W.2d 105 (Tex.Civ. App.—Fort Worth 1975, writ dism’d).

However, where the checking account contains both community and separate funds, it is presumed that community funds are drawn out first. See Horlock v. Horlock, 533 S.W.2d 52, 58 (Tex.Civ.App.-—Houston [14th Dist.] 1975, writ dism’d); Sibley v. Sibley, 286 S.W.2d 657 (Tex.Civ.App.—Dallas 1955, writ dism’d). Applying this rule, the $460.15 beginning balance was withdrawn after the first withdrawal, thereby establishing the sum of $4,118.03 as the separate funds of deceased, and appel-lee’s community interest in the balance of the checking account would be $439.74 instead of $2,498.76 found by the trial court.

Appellants urge a “no evidence” point in the finding by the trial court that appellee overcame the community property presumption as to a bank savings account in the amount of $687.52 and a bank checking account in the amount of $466.35. These two accounts were in the City National Bank of Bryan. The only evidence in the record with reference to these accounts was that the source of the funds was “[s]ome was gifts and some may have been my social security check. I don’t remember.” We agree with appellants that such testimony is no more than a “scintilla” of proof of the vital fact needed to 'be provided; i. e., that the accounts consisted of money acquired in one of the ways recognized to create separate property. Evidence is a mere scintilla, and legally no evidence, “when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence.” Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970); Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Texas L.Rev. 361, 363 (1960). This point is sustained. Accordingly, appellee would be entitled to her community interest in such accounts in the sum of $576.94. Since appellee now has in her possession the entire proceeds of such accounts, then appellants should receive the remaining community interest of such accounts in the sum of $576.94.

Appellants’ next point of error complains of the trial court’s holding that a savings and loan account in the amount of $5,087.23 was appellee’s separate property. Appellee held an account in the Reliance Federal Savings & Loan Association in the amount of $5,087.23. The court found that this account “consisted of a mixture of funds owned by [appellee] prior to her marriage . . . and interest earned on such funds before and after her marriage . ” and concluded that such funds were the separate property of appellee. The testimony upon which this finding and conclusion is based shows that the funds on deposit in this account earned interest during her marriage. Appellee left such interest on deposit and testified she “never drew anything out of it.” Appellee has not replied to this point. It is obvious the funds in the account prior to her marriage constituted her separate property. There is no evidence as to the amount of the interest thereon remaining in the account. Appellee has made no effort to trace her separate funds. She has therefore failed to discharge her burden in tracing and clearly identifying her separate property. Therefore, she has failed to overcome the presumption of the funds being community property as stated in Tex.Fam.Code Ann. § 5.02 (Vernon 1975). The findings and conclusions of the court in holding same to be appellee’s separate property are erroneous. However, it is evident that the original funds in the account, owned prior to her marriage, greatly exceed the amount of the interest thereon. It is obvious the evidence, with reference to such amount of interest, has not been fully developed, and the evidence as to tracing has not been fully developed. It would be in the best interest of justice that this award of the trial court should be remanded so that the testimony can be fully developed. See Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951).

Appellants’ sixth and seventh points are without merit and are overruled.

Appellee, by proper crosspoints, complains of the trial court’s findings and conclusions in that three certificates of deposit totaling $30,000 and a promissory note in the amount of $8,591.82 were the separate property of the deceased, George Ventura.

It is agreed by the parties that the certificates of deposit and the promissory note were obtained from the sale of certain real estate that George Ventura sold during his marriage to appellee. The parties also agree that George Ventura had previously owned the same land and had sold it prior to his marriage to appellee. He took as part of the consideration for such sale a promissory note and deed of trust lien. Pri- or to their marriage, George Ventura executed a form of assignment purporting to convey title to the note and lien to the University National Bank of College Station. After the marriage, the bank executed a form of assignment purporting to convey title to the note and lien back to George Ventura. Shortly thereafter, Mr. Ventura foreclosed his lien through a trustee’s sale. Mr. Ventura purchased the land from the trustee at such sale.

The trial court found that the note and lien had remained Mr. Ventura’s separate property at all times because the purported assignment to the bank had been in reality the creation of a security interest in the note and lien in favor of the bank. The trial court found that, although Mr. Ventu-ra had executed an instrument that was by its terms an absolute assignment, the transaction had been intended as the creation of a security interest only. This finding was based upon the following language contained in the instrument of assignment from the bank:

“And, Whereas, heretofore, the note described herein and the Deed of Trust lien was assigned to [Bank] by George Ventura by an instrument recorded . . such assignment being for the security of money borrowed from said Bank by [Ventura], and it now being the desire of the said [Ventura] to substitute other collateral for the money due and owing to said Bank. . . . ”

The instrument quoted above was admitted by appellee to be a genuine document and was received in evidence without objection.

The court’s findings are in accord with the rule that “merely because an assignment is absolute on its face does not prevent a court from treating it as security for a debt if it was so intended,” and such intent “may be shown by parol evidence or by a separate written instrument.” Hillcrest State Bank v. Bankers Leasing Corp., 544 S.W.2d 727 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); Kaufman v. Blackman, 239 S.W.2d 422, 427 (Tex.Civ.App.—Dallas 1951, writ ref’d n. r. e.).

The trial court further found that the land acquired became Ventura’s separate property because he gave as consideration for it a credit against the note that was itself separate property. He did not pay any cash for the property. The evidence clearly shows that, after the trustee’s sale, Ventura brought suit for the deficiency owing on the note after the sale. This land was later sold, and the proceeds of such sale were used in acquiring the certificates of deposit. The promissory note was a part of the consideration paid for a portion of the land sold. The findings of the trial court as to the property being the separate property of the deceased, George Ventura, and the certificates of deposit and the promissory note are supported by factually sufficient evidence.

These crosspoints are overruled.

The trial court awarded appellants the sum of $268.81 for reimbursement for taxes paid and cash on hand. Appellee has made no complaint as to this. According to our views expressed herein, appellants are awarded the additional sum of $576.94, making the total amount of $845.75. Ap-pellee is entitled to receive the sum of $419.34, which when offset against appellants’ recovery, leaves appellants award in the sum of $406.01 for which they should have judgment.

That part of the judgment denying appellants a portion of the $5,087.23 held in an account in the Reliance Savings & Loan Association is hereby severed and is reversed and remanded.

That part of the judgment awarding ap-pellee the sum of $2,229.95 is reversed and rendered that appellee take nothing, and judgment is rendered that appellants recover the sum of $406.01.

All costs of this appeal are assessed equally between appellants and appellee.

REVERSED and REMANDED in part and REVERSED and RENDERED in part.


source: Caselaw Access Project

license: Public Domain

text:
    VAPOR CORPORATION, Appellant, v. Robert H. WELKER and Welker Engineering Co., Appellees.
    No. 8191.
    Court of Civil Appeals of Texas, Beaumont.
    March 15, 1979.
    Rehearing Denied April 26, 1979.

      Ben D. Tobar, Houston, for appellant.
    Lawrence E. Evans, Jr., Houston, for ap-pellees.
   CLAYTON, Justice.

This is an appeal from the denial by the trial court, sitting without a jury, of a decree for specific performance under a contract and for injunctive relief, which action was brought by Vapor Corporation (Vapor) against Robert H. Welker (Welker) and Welker Engineering Company (W.E.C.) to enforce certain provisions of a contract to obtain title and all rights to a flow regulator, or control valve, used in natural gas pipelines. The regulator was developed by Welker and W.E.C. Vapor also appeals from that portion of the judgment which granted Welker and W.E.C. the sum of $24,934.08 for their counterclaim for unpaid royalties as a third party beneficiary under a certain contract.

In 1959 Welker obtained a U. S. Patent (hereinafter referred to as the “269” patent) entitled “Flow Regulator” and attempted for a year and a half to develop that flow regulator at which time he sold his patent rights. In 1961 Welker entered into a “Franchise Agreement” with Tex-steam Corporation, a predecessor-in-interest to Vapor. This agreement provided inter alia that: (1) Vapor was to pay Welker a royalty of five percent of the net selling price of all flow regulators covered by the “269” patent; (2) Welker assigned his “full right, title and interest in and to” his flow regulator, which included “all improvements now or at any time hereafter made or owned in whole or in part by Welker “on his flow regulator shown in his ‘269’ patent”; (3) “all inventions or discoveries of Welker which are not improvements on [his flow regulator] or which are not covered by [his Employee Invention Assignment Agreement] shall be offered by Welker to [Vapor] upon terms similar to the terms of this agreement . . . ”; and (4) the royalties, based upon the five percent of sales payable to Welker by Vapor, must be at least a minimum of $5,000 per year for the 1961 agreement to remain in effect.

In 1971 Welker submitted to an officer of Vapor an application for a U. S. Patent inquiring if the flow regulator shown therein was subject to the 1961 agreement. In 1972 Welker assigned his “entire right, title and interest” in the flow regulator to Vapor and acknowledged that the assignment was “subject to [the 1961 agreement].” In 1973 a patent (hereinafter referred to as the “300” patent) was issued to Welker by the U. S. Patent Office for such flow regulator. Since 1972 Welker has received royalties pursuant to the 1961 agreement for the manufacture by Vapor of “Jetstream” flow regulators as shown in the “300” patent. This patent expires in July 1990.

Between 1961 and 1972, in the course of his duties as an employee of Vapor, Welker suggested the use of certain component parts or modifications of Vapor’s Jetstream regulator — a “dust cover” in 1962, a “capacity control fairing” or “stress ring” in 1961, a “mechanical grip on the inner valve” in 1962, and in 1967 a “mechanical grip” between the inner valve and slave cylinder of a Jetstream regulator which allowed natural gas to flow in two directions through the regulator. No patent applications were filed by Vapor for these component parts.

In December 1976, Welker and W.E.C. began selling their new “Welker Jet” regulator; and Vapor, because of the design of the “Welker Jet,” has brought this action seeking specific performance and injunctive relief.

It is Vapor’s contention that it is entitled to a decree for specific performance to obtain all “right, title and interest” in and to the new “Welker Jet” regulator because either: (1) it is an “improvement” on Welker’s flow regulator of his 1959 “ ‘269’ Patent,” thus to be assigned to Vapor pursuant to the 1961 agreement; or, alternatively (2) it is not an “improvement,” and as such Welker is under a contractual duty to offer to Vapor pursuant to the 1961 agreement under provisions relating to items which are not “improvements.”

By its fourth and fifth points, appellant challenges, by no evidence and insufficient evidence points, the trial court’s Finding of Fact No. 5 wherein the court found that the “Welker Jet” flow regulator is not an improvement on or to the flow regulator disclosed in the U. S. Patent “269,” for the reason that “there is no evidence” and “insufficient evidence . to overcome the statements of Welker and others that his new regulator is an improvement on his regulator of his 1959 patent [“269” patent] because it discourages hydrate formation and reduces noise.” In its argument under these points the only evidence referred to by appellant is “Welker said that ‘hydrate formation’ was a significant point and that his new flow regulator had the quality of discouraging ‘hydrate formation.’ Vapor’s witnesses were of the same opinion. . . . ” The only statement referred to with reference to “noise” is “[witness] likewise agreed with Welker that his new regulator was more quiet than that of the ‘269’ patent, although [witness] expressed a contrary opinion on which valve achieved better noise qualities. . . . ” With reference to these two points and the quoted statements, we first observe that these references made in appellant’s brief to assert fact questions do not contain any references to the record where the matters asserted may be found. The record concerning these possible fact assertions consists of a statement of facts containing more than nine hundred pages and, in addition thereto, 94 exhibits. The burden is on appellant to show that the record supports its contentions and to point out the place in the record where the matters complained of, or upon which appellant relies, are shown. See Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); Sims v. McKnight, 420 S.W.2d 173, 178-9 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Little Rock Furniture Manufacturing Co. v. Dunn, 218 S.W.2d 527, 534 (Tex.Civ.App.—Fort Worth), aff’d 148 Tex. 197, 222 S.W.2d 985 (1949). Appellant has failed to meet its burden.

However, considering the statements quoted by appellant with reference to the statement as to the “hydrate formation” it is apparent such statement made by Welker is unrelated to either the “269” patent, the Jetstream, or the Welker jet regulators. The statement makes no comparison of one regulator to another. With reference to the “noise” element, Welker testified that the noise characteristics of the Welker jet and the “269” patent are about “equal.” The other statement by appellant clearly shows the existence of conflicting opinions as to this element. The trial court’s findings on disputed issues of fact are binding on this court. Padilla v. Texas Employers’ Ins. Association, 343 S.W.2d 473 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Sparr v. Longaker, 352 S.W.2d 956 (Tex.Civ.App.—Austin 1962, no writ). If the evidence is conflicting, as it is here, we are not to substitute our judgment for that of the trial court. Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e.). Moreover, the trial court having found that the Welker jet “is NOT an improvement on or to” the “269” patent, it is not required to make findings on evidentiary matters as distinguished from controlling matters on every controverted fact. Goren v. Goren, 531 S.W.2d 897 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ dism’d). The “hydrate” and “noise” characteristics were merely evi-dentiary matters and not the ultimate and controlling issue. These points are overruled.

Appellant challenges in his sixth and seventh points the finding of fact by the trial court that “[t]he claims of improvement contained in Welker Engineering Company advertisements and other literature are typical examples of puffing which resort to the use of colorful modifiers for sales and promotional purposes,” for the reason that there is no evidence, or insufficient evidence, in the record to support the finding that the technical paper which Welker presented at an international school to his learned peers and his correspondence with those in attendance was an “advertisement or promotional literature.” The finding made by the trial court concerned only “advertisements and other literature” and did not contain a specific finding with reference to any paper presented to the international school. Upon a careful review of the record, we find advertisements upon which the trial court could have and did base its findings. Appellant’s complaint, in effect, is made against a specific finding which was not make by the trial court. From a review of the evidence, we are of the opinion the findings of the trial court are factually supported by probative evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

By its eighth point, appellant urges error by the trial court in its conclusion of law that appellee is a third party beneficiary to a certain manufacturing agreement between appellant and Heeco Limited, a United Kingdom corporation.

The manufacturing agreement, entered into between appellant and Heeco, provided inter alia that: (1) Heeco would manufacture appellant’s Jetstream regulator in the United Kingdom for sale in the United Kingdom and Europe; (2) appellant would supply and grant to Heeco the exclusive right to use appellant’s “confidential matter” to enable Heeco to perform such manufacturing; (3) Heeco was to pay a royalty to Vapor for the rights granted them, and (4) the following provision appears in the Heeco agreement:

“Seventh, Welker Patent. It is understood by the parties that heretofore TXT [Vapor] has entered into an assignment contract with Robert Welker. Under said agreement, Welker is entitled to a 5% royalty on all sales made pursuant to said patent. For the purposes of this agreement, the parties agree and TXT [Vapor] authorizes HEECO to pay to Welker the 5% royalty on all sales made by HEECO. . . . Prior to making said payments, HEECO shall receive in writing permission from Welker to make said payments directly rather than through TXT. Said payments shall be made by HEECO to Welker in accordance with said assignment dated the 12th day of June, 1961.
“Upon the expiration of the Welker Patent, the 5% royalty theretofore paid by HEECO to Welker shall become the property of TXT and the amount due TXT shall be increased by said amount.

Welker was not a signatory party to the Heeco agreement.

The rule with reference to third party beneficiaries is clearly stated in Standard Accident Ins. Co. v. Knox, 144 Tex. 296, 184 S.W.2d 612, 615 (1944), wherein the Supreme Court states:

“A person not a party to a contract may sue thereon for himself if it appears that it was made for his benefit, but the presumption is that parties contract for themselves alone; and a contract will not be construed as having been made for the benefit of a third party, unless it clearly appears that such was the intention of the contracting parties.”

Under the terms of their agreement both Vapor and Heeco acknowledged the existence of Vapor’s assignment contract with Welker. The parties, Vapor and Hee-co, expressly agreed, and Vapor authorized Heeco to pay to Welker the five percent royalty on all sales made in the United Kingdom and Europe during the life of the Welker patent. The officers of Heeco knew and recognized that the royalty payments were due Welker. At different intervals Heeco calculated, reported, and paid the five percent royalty due Welker. The payments were made direct to Vapor. Each of the royalty statements clearly shows “TXT Commission” and “Welker Commission.” The payments made by Heeco to Vapor and Vapor’s receipt and accounting for such payments clearly indicate their understanding and intent; i. e., Welker was to be paid a five percent royalty. This is made very clear on Vapor’s part when it received and accepted the payments totaling $24,-934.08 and which were entered in Vapor’s books in an accounting column entitled “Reserve for Contingent Royalty.” The evidence clearly shows that such account was related to Welker’s actions. This evidence clearly shows the intent of Vapor and Hee-co that the contract was made for the benefit of Welker. This point is overruled. Appellant’s points 12, 13, 14, 15, 16, 17, 18, 19, are, for the same reason, overruled.

Appellant complains, in its first and second points, of the trial court’s conclusion of law that appellant does not own any right, title, or interest in the “Welker Jet” regulator and that Welker is not “under a duty to offer the right, title and interest in and to such regulator to appellant.” It is appellant’s contention that in accordance with the terms of the “Franchise Agreement” it owns all improvements made to and upon Welker’s “269” patent, and “all inventions or discoveries of Welker which are not improvements on [his flow regulator] shall be offered by Welker to [Vapor]. . . ” We have overruled appellant’s points as to the findings of the trial court that the “Welker Jet” regulator was not an improvement upon the “269” patent. Appellant’s contention now must depend upon a finding that the “Welker Jet” regulator is an invention or discovery of Welker which is not an improvement upon the “269” patent.

The trial court specifically found that the “Welker Jet” regulator was not an improvement upon the “269” patent. There was no finding of fact made as to whether or not the same constituted an invention or discovery. Appellant did not request any such finding of fact by the trial court, and no complaint has been made by appellant as to the failure of the trial court to make such a finding. At the time the trial court filed its findings of fact, the appellant had the right to request additional or amended findings. Tex.R.Civ.P. 298. Appellant did make such a request specifying the amendments to such findings of fact, as well as certain specific additional findings. Appellant did not, however, request any specific finding as to the “Welker Jet” regulator being an invention or discovery by Welker.

In the absence of a request by appellant to make such a specific finding of fact after the trial court had entered its findings, appellant waived its right to complain of any failure to make any such additional finding of fact. Davis v. Travis County Child Welfare Unit, 564 S.W.2d 415 (Tex.Civ.App.—Austin 1978, no writ); Bolli v. Prewitt, 561 S.W.2d 917 (Tex.Civ.App.—San Antonio 1978, no writ). Moreover, appellant’s failure to request additional findings of fact relevant to this element of invention or discovery effected a waiver thereof. Elliott v. Bowden, 564 S.W.2d 825 (Tex.Civ.App.—Corpus Christi 1978, writ, ref’d n. r. e.); Micrea, Inc. v. Eureka Life Insurance Company of America, 534 S.W.2d 348, 357-8 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.); Home Indemnity Company v. Muncy, 449 S.W.2d 312, 316 (Tex.Civ.App.—Tyler 1969, writ ref’d n. r. e.). Appellant’s first and second points are overruled.

Appellant’s twentieth point complains of the failure of the trial court in refusing to grant a permanent injunction against Welker from selling the new “Welker Jet” regulator, “since Welker breached his confidential relationship with Vapor by first disclosing his new flow regulator to the public.”

We agree with appellee Welker that the cause of action brought by appellant was for specific performance of the 1961 agreement whereby the court would adjudicate whether the right, title, and interest in the Welker Jet was vested in Vapor or Welker. This was not a cause of action concerning a confidential relationship or trade secret case. Such a cause of action based upon a confidential relationship or trade secrets does not appear in the pleadings, and no findings of fact and conclusions of law were made thereon by the trial court. No complaints have been made as to the absence of such findings or conclusions. The parties are restricted in the appellate court to the theory on which the case was tried in the lower court. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942); Mozley v. Tabor, 484 S.W.2d 596 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Phelan v. Phelan, 471 S.W.2d 605 (Tex.Civ.App.—Beaumont 1971, no writ). This point is overruled.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: RAY, Justice.

text:
    TEXAS SKAGGS, INC., Appellant, v. Sharon GRAVES, Appellee.
    No. 8653.
    Court of Civil Appeals of Texas, Texarkana.
    April 17, 1979.

      Charles D. Barnette, Arnold, Arnold, Lavender & Rochelle, Ltd., Texarkana, Ark., for appellant.
    Jim L. Hooper, Harkness, Friedman, Ku-sin & Hooper, Texarkana, for appellee.
   RAY, Justice.

This is a malicious prosecution suit. Ap-pellee (plaintiff), Sharon Graves (Graves), filed suit against Texas Skaggs, Inc. (Skaggs), appellant (defendant), alleging that Skaggs had willfully and maliciously commenced an action against her in the Municipal Court of Texarkana, Arkansas. The jury returned a verdict of $20,000.00 actual damages. The trial court overruled appellant’s motion for judgment notwithstanding the verdict and the motion for new trial, and entered judgment for Appel-lee Graves. Skaggs has perfected its appeal and submits eight points of error for our consideration. The judgment of the trial court will be affirmed.

The facts are that Sharon Graves worked as a checker in the Skaggs store in Texar-kana, Arkansas, but was “fired” for reasons not material to this case. Nevertheless, she continued to purchase her groceries at the Skaggs store and often paid for them by check. Appellee Graves shared her checking account with her husband. Although the account was in her name, it was her custom to leave one or two blank checks, signed by her, with her husband so he could draw on the account. When the couple separated, the husband withdrew all of the funds from the account so that on January 2nd and January 5th, 1977, the two checks written by Sharon Graves to pay for groceries at Skaggs were returned to Skaggs marked “Insufficient Funds.” The two checks for $13.17 and $21.53 represented the total amount of $34.70 that was due Skaggs. The “returned check ledger” kept by Skaggs indicated that Graves was first contacted on January 17, 1977, concerning the insufficient funds checks. Graves was not employed on that date because she had recently been terminated by Skaggs. A ledger entry for January 27, 1977, shows that appellee was again contacted and agreed to pay as soon as she could get her money from the Skaggs credit union. The ledger entry was as follows: “1/27 Waiting on credit union money.” This entry is consistent with Graves’ testimony that she had promised Skaggs she would pick up the checks as soon as she received the money and that Skaggs had agreed to wait.

On February 8th and 11th, in keeping with store policy, Skaggs sent certified letters to Mrs. Graves concerning the two checks. Graves testified that she never received either certified letter because during her period of unemployment she had to stay with her mother who helped her care for her three children and consequently was not at her own home to receive the mail. On February 17th, Graves received her money from the Skaggs credit union and on the same day purchased a money order and mailed it to Skaggs to cover the “hot” checks. She did not return to the store and claim the two checks because she was embarrassed by the situation. Skaggs admits that it received the payment for the checks.

On February 18, 1977, Bill Pennington, a manager for Skaggs, filed an “Incident Report” with the Texarkana, Arkansas Police Department reporting Sharon Graves for a violation of the Arkansas Hot Check Law. On February 22nd, Pennington filed an “Affidavit for Warrant of Arrest” for Sharon Graves (comparable to a complaint in Texas) and a warrant of arrest was issued the same day. There is no evidence indicating that Graves knew or had any reason to know that the warrant had been issued until the day she was arrested.

Sharon Graves visited the Skaggs store on March 3, 1977, to do some shopping with a friend. While she was in the store, Charles Hubbard, a manager for Skaggs, summoned the police, who came and arrested Graves. She tried to explain to Sgt. Larry Arnold, the arresting officer, that the checks had been paid, but Arnold, operating on the warrant, took her out of the store and to the police station where she was booked on a hot check charge. Arnold then telephoned Skaggs and learned that the cheeks had, in fact, been paid. Arnold then released Graves and returned the two checks to her (that had been attached to the Affidavit for Warrant of Arrest).

Sgt. Arnold talked to an employee of Skaggs again that afternoon and when the person he was talking to learned that Graves had been released, that person (unidentified) told Arnold that he wanted Graves prosecuted and that he did not care if she had paid the checks. The next morning, March 4th, Arnold drove to Sharon Graves’ home in Texas and told her that Skaggs intended to prosecute her that afternoon. Mrs. Graves immediately hired an attorney and appeared in Court. The municipal judge dismissed the case when the prosecution could not produce the “hot” cheeks.

The trial court took judicial notice of the Arkansas Hot Check Law and presumably applied the Arkansas law as it relates to malicious prosecution. We have chosen to review this case in the light of the Arkansas law since the parties have presented their case on appeal on the basis that Arkansas law applies.

Appellant challenges the submission of the case to the jury by asserting that the trial court erred in not granting Skaggs motion for a directed verdict, motion for judgment notwithstanding the verdict, and motion for new trial. Skaggs also asserts that Graves has failed to plead all of the elements of a cause of action for malicious prosecution.

In Arkansas, a cause of action for malicious prosecution consists of the following elements:

(1) A criminal prosecution instituted or continued by the defendant against the plaintiff;
(2) Termination of the proceeding in favor of the accused;
(3) Absence of probable cause for the proceeding;
(4) Malice; and,
(5) Damages.

See Notes, Malicious Prosecution—The Law In Arkansas, 22 Ark.L.Rev. 340 (1968).

In response to special issues, the jury found that Graves did not know that her bank account had insufficient funds for the payment of the two checks; that Skaggs did not have probable cause to institute the prosecution of Sharon Graves; that Skaggs acted with malice; and, that the sum of $20,000.00 would reasonably compensate Graves for her actual damages.

INSTITUTION OF CRIMINAL PROCEEDINGS

The evidence is clear and undisputed that Skaggs initiated and continued the prosecution of Sharon Graves.

TERMINATION OF THE PROCEEDINGS IN FAVOR OF THE ACCUSED

The record reflects that the case against Graves was dismissed in the Municipal Court of Texarkana, Arkansas, with the notation, “dismissed on basis checks not available for presentation of case.” Skaggs argues that this type of termination is indecisive and is not sufficient to establish malicious prosecution. Prosser describes types of termination that are sufficient to sustain a malicious prosecution suit:

“On the other hand, it will be enough that the proceeding is terminated in such a manner that it cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one. This is true, for example, of an acquittal in court, . the entry of a nolle prosequi or a dismissal, abandonment of the prosecution by the prosecuting attorney or the complaining witness, . . where any of these things have the effect of ending the particular proceeding and requiring new process or other official action to commence a new prosecution. It may be said generally, that this is true whenever the charges or the proceeding are withdrawn on the initiative of the prosecution. .
“On the other hand, where charges are withdrawn or the prosecution is terminated at the instigation of the accused himself, or by reason of a compromise into which he has entered voluntarily, there is no sufficient termination in favor of the accused. . . . ” W. Prosser, Torts Sec. 113, pp. 857, 858 (3rd ed. 1964).

Prosser is in accord with the rule established by the Restatement (Second) of Torts, Secs. 658, 659 (1977). The abandonment of the proceedings because a conviction has, in the natural course of events, become impossible or improbable, is a sufficient termination in favor of the accused. See Restatement (Second) of Torts, Sec. 660(b) and the Comment on Clause (b) (1977). We are of the opinion that this case was not dismissed on technical or procedural grounds, but was an abandonment of the prosecution by the prosecuting attorney and that the inferences to be drawn from the evidence support that conclusion. We are of the further opinion that because there was a dismissal for lack of incriminating evidence, Graves could have procured a finding of “not guilty” by the municipal court had the matter been pressed for a full trial by the prosecuting attorney. Closely connected with the element of successful termination is the defense that Graves was in fact guilty of the charge. This defense was available even if Graves had been acquitted of the criminal charge. The rational basis is that the law protects only the innocent and, if guilty, the plaintiff deserved the treatment complained of. Thus, Skaggs had the option to assert the defense that Graves was in fact guilty of the charge. There was apparently some attempt to prove this defense, but the jury rejected it.

ABSENCE OF PROBABLE CAUSE

Graves had the burden of proving that the criminal proceeding was initiated or continued by Skaggs without probable cause; that is, Graves had to show that Skaggs had no honest or reasonable belief in the truth of the charge however suspicious the circumstances of Graves’ acts. Probable cause has been defined by the Arkansas Supreme Court in Hitson v. Simms, 69 Ark. 439, 441, 64 S.W. 219, 220 (1901), as follows:

“ . . . such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused is guilty of the crime alleged, and thereby caused the prosecution. . . ”

However, it is stated in 22 Ark.L.Rev. 349:

“Liability is imposed on the defendant where there are sufficient facts to indicate to a reasonable man that the plaintiff was guilty but the defendant himself knew better, i. e., a subjective test. Since the test requires more than mere unfounded suspicion the courts will hold a defendant liable in cases where a reasonable man would further investigate the facts.”

The facts supporting the jury’s finding of lack of probable cause are that Graves was well-known by the employees of Skaggs; that the two checks were relatively small; that the checks were used to pay for groceries alone and that no cash was obtained with the checks; that Graves could have obtained large amounts of cash because she knew all of the Skaggs’ employees; that she could have cashed many checks obtaining cash, but did not; that the checks were written on her regular bank account and not some fictitious bank or bank account; that once she was notified that her two checks had been returned to Skaggs, she immediately agreed to make restitution; that Graves in fact mailed her money order to Skaggs prior to the time that prosecution was instituted; that Skaggs was aware of the restitution before her arrest; that Skaggs had agreed to await restitution and to accept payment for the checks when Graves received her money from the Skaggs credit union; that Skaggs, pursuant to its agreement with Graves, had accepted restitution but issued instructions that the prosecution continue; and, that Skaggs further insisted that the prosecution continue after having been apprised of the fact that Mrs. Graves had been arrested and released by the officer after the officer had called one of Skaggs’ employees and learned that restitution had been made. From the foregoing facts, and the inferences to be drawn therefrom, the jury could have reasonably concluded that Graves did not intend to defraud Skaggs and that no probable cause existed to institute or continue the prosecution proceedings. As a defense, the burden of persuasion was on Skaggs to show that the complaining witness, Bill Pennington, believed in Graves’ guilt at the time the original proceeding commenced and that this belief was supported with facts which would lead a reasonable, cautious or prudent man to the same conclusion, and which in fact did lead Pennington to this conclusion. Pennington was not called as a witness. The jury apparently believed that the testimony of Sharon Graves was more plausible than that of the employees at Skaggs and that Skaggs knew or should have known or found out from further investigation that Graves did not issue the cheeks knowing at the time of issuing them that she did not have sufficient funds in her bank account to cover the checks. The jury could have further believed that while a reasonable person might have concluded that Graves was guilty, Skaggs’ employees knew better and should have further investigated the facts.

The “Arkansas Hot Check Law”, Ark.Stat.Ann. Sec. 67-720 (Supp.1978) provides:

“It shall be unlawful for any person to procure any article or thing of value, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, upon any bank, . . . knowing at the time of such making, . . . that the maker, . . . has not sufficient funds in, or on deposit with, such bank,

Evidence of the requisite intent to defraud is supplied by Ark.Stat.Ann. Sec. 67-722 which provides that the making of a check, “ . . . payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud . . . ”. While the statute raises the presumption of intent to defraud, such presumption may be rebutted by evidence explaining the transaction and where the evidence is sufficient to dispel any presumption of intent to defraud, the statute alone will not support a conviction under the Arkansas Hot Check Law. Edens v. State, 235 Ark. 284, 357 S.W.2d 641 (1962). The Texas law is similar. See Brown v. Parrata Sales, Inc., 521 S.W.2d 359 (Tex.Civ.App. Dallas 1975, no writ). In the present case, there was no intent to defraud because there was ample evidence to support the jury finding that Graves did not know that she had insufficient funds in her bank account at the time of writing the checks with which to make payment of the two checks when they were processed for payment at her bank. And while restitution alone is not an absolute defense to the Arkansas Hot Check Law as stated in Garr-oute v. State, 241 Ark. 285, 408 S.W.2d 485 (1966), the fact that Graves immediately agreed to make restitution and did in fact make restitution is some evidence that she did not intend to defraud Skaggs. Certainly, once Graves had made restitution and that fact was coupled with all the other facts known to Skaggs’ employees, a conclusion that Skaggs had no probable cause to further insist upon the prosecution of Graves would be justified.

MALICE

Regarding the element of malice, it is generally agreed that the lack of probable cause may give rise to an inference of malice, sufficient to carry the question to the jury. W. Prosser, Torts, Sec. 113, p. 868 (3rd ed. 1964). The courts require that malice in fact be shown in order to sustain a recovery for malicious prosecution. This is usually established by proving that the defendant had a wrongful or improper motive or was motivated by some purpose other than bringing a guilty person to justice, such as, using the prosecution as a means to recover property, to extort money, or to collect a debt. “ . . . Hence, proof of malice need not be direct but may be inferred from circumstances surrounding the defendant’s act. This does not mean the defendant must have acted out of hatred, ill will, spite or grudge.” 22 Ark.L.Rev. 340, 353, supra. The jury could and probably did believe that Skaggs instituted the criminal proceedings without probable cause in an effort to collect the two checks. The jury finding that Skaggs acted with malice has ample support in the record. Certainly, Skaggs’ insistence that the prosecution continue against Graves after she had been released by Sgt. Arnold following her arrest with the statement to the effect that Skaggs did not care if Graves had paid the checks, Skaggs wanted her prosecuted anyway, supports the inference that Skaggs continued to act maliciously.

DAMAGES

Appellant argues that the jury verdict was so grossly excessive as to show that it was the result of passion, prejudice or other improper motives. No eases are cited to guide this Court in its determination of this issue. The general rule is as follows:

“Although the verdict is large and the trial court, in the exercise of a sound discretion’ might properly have set it aside, the appellate court will not disturb the verdict, although it may seem too large, in the absence of circumstances tending to show that it was the result of passion, prejudice, or other improper motive, or that the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury and the court, or so excessive as to shock a sense of justice in the minds of the appellate court.” 17 Tex.Jur.2d Damages, Sec. 341, p. 415 (1960).

As stated in Green v. Meadows, 527 S.W.2d 496 (Tex.Civ.App. Houston-1st Dist. 1975, writ ref’d n. r. e.), there are no objective guidelines by which we can measure the money equivalent of mental pain.

“ . . . Much discretion must be allowed the jury in fixing this amount. The trial judge refused to order a remitti-tur. We are unable to say that the jury’s verdict is excessive to the extent that the judgment should be reversed for that reason only. . . . ”

In Green, the jury had awarded the plaintiff $20,000.00 in a malicious prosecution suit.

The facts in the present case show that Sharon Graves has suffered substantial injury. She was arrested and paraded through the store by a uniformed policeman and the store manager in front of her friends and former fellow employees. She was taken to the police station where she was booked and suffered the humiliation of a criminal charge. She testified that because of this criminal record she was not hired by several prospective employers because of her arrest record which will follow her the rest of her life. The evidence supports the jury verdict.

The trial court allowed Sharon Graves to testify concerning statements made to her by prospective employers to the effect that they would not hire her because of her arrest. Appellant’s attorney objected to this testimony on the grounds it was hearsay. The trial court overruled the objections and appellant now asserts that the trial court’s ruling was error.

Hearsay is an out of court statement offered at trial to prove the truth of the matter asserted. 5 Wigmore on Evidence, Sec. 1361 (3rd ed. 1940). Where the out of court statement is not offered to prove any facts stated therein, it is not hearsay. The statements made to Graves by prospective employers were offered as evidence to prove the reasons why Mrs. Graves had not gained employment. As such, the statements were hearsay. However, Graves had testified, without objection, that she had applied for jobs and been turned down because of the incident with Skaggs. She further testified that she had filled out applications for employment that asked about her arrest record and that she had indicated on the applications that she had been arrested. Since Mrs. Graves had testified of her own knowledge that she had been refused jobs because of the incident with Skaggs, we do not think the hearsay statements of prospective employers had the effect of causing the jury to render an improper verdict. While we have concluded that the trial court erred in admitting such evidence, we are of the opinion that such error was harmless.

To recapitulate, the pleadings were adequate to support the judgment; there was sufficient evidence to establish that Skaggs had instituted and continued criminal prosecution against Sharon Graves; there was evidence that the proceeding was terminated in favor of Graves; that the evidence established an absence of probable cause for institution of the criminal proceedings against Graves; that the evidence supports the finding of malice; and, the evidence supports the jury finding of $20,000.00 in damages.

All of appellant’s points of error have been considered and are overruled. The judgment of the trial court is affirmed.

HUTCHINSON, J., not participating.


author: KLINGEMAN, Justice.

text:
    BAKERY EQUIPMENT AND SERVICE COMPANY, INC., Appellant, v. AZTEC EQUIPMENT COMPANY, Appellee.
    No. 16157.
    Court of Civil Appeals of Texas, San Antonio.
    April 18, 1979.

      Stephen Dittlinger, Southers, Goldberg & Lyons, Inc., San Antonio, for appellant.
    Peter H. Carroll, Brite, Drought, Bobbitt & Halter, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is an appeal arising out of a suit by appellee, Aztec Equipment Company, against appellant, Bakery Equipment and Service Company, Inc., to recover the sum of $189 alleged to have been wrongfully retained by appellant; for attorney’s fees in the amount of $500; and for costs of suit. Appellee moved for summary judgment, and the trial court granted such motion and rendered judgment for appellee in the sum of $689.

On appeal, appellant does not object to the trial court’s action in awarding summary judgment in favor of appellee for the sum of $189, but its complaint by four points of error relates to the award of $500 as appellee’s reasonable attorney’s fees. Appellant contends that appellee’s petition and summary judgment evidence sets up nothing more than a tort action for conversion and that, as a matter of law, attorney’s fees are not recoverable in such an action. The record contains neither depositions nor supporting or controverting affidavits, and the appellee’s motion for summary judgment asserts that it is based on the pleadings and appellant’s “requests for admissions and interrogatories” on file in this case. None of the discovery requests was answered within the time permitted; therefore, all requests were deemed admitted under Rule 169, Texas Rules of Civil Procedure. The request for admissions relied upon by appellees consists of the following:

1. Request 1. That during the month of December 1977, Plaintiff sold to Panisicadora de Chihuahua one used forklift truck for the sum of ONE THOUSAND EIGHT HUNDRED NINETY AND NO/100 ($1,890.00) Dollars.
2. That delivery of said forklift truck was made to Defendant.
3. Request 3. That Defendant then delivered said forklift truck to Panisica-dora de Chihuahua.
4. Request 4. That, in return therefore [sic], Defendant received from said purchases the sum of ONE THOUSAND EIGHT HUNDRED NINETY AND NO/100 ($1,890.00) Dollars.
5. Request 5. That Defendant thereupon remitted unto Plaintiff the sum of ONE THOUSAND SEVEN HUNDRED ONE AND NO/100 ($1,701.00) Dollars.
6. Request 6. That there was no agreement where Defendant would retain any part of said ONE THOUSAND EIGHT HUNDRED NINETY AND NO/100 ($1,890.00) Dollars as any type of compensation.
7. Request 7. That Defendant has failed and refused to pay Plaintiff the ONE HUNDRED EIGHTY-NINE AND NO/100 ($189.00) Dollars retained by Defendant, although requested repeatedly to do so.
8. Request 8. That a reasonable attorney’s fee for services of Plaintiff’s attorneys in this case is $500.00.

In a summary judgment proceeding under Rule 166-A of the Texas Rules of Civil Procedure the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

Appellee asserts that that portion of the summary judgment awarding it attorney’s fees was properly granted because attorney’s fees are recoverable as a matter of law in the cause of action plead by appellee, and because appellee proved it was entitled to recover attorney’s fees as a matter of law. Appellee argues in its brief that its petition alleges both a suit on a contract and a tort action for conversion and that under such circumstances attorney’s fees are recoverable under Article 2226, Texas Revised Civil Statutes. The paragraphs of plaintiff’s petition relevant to this contention are as follows:

II.
During the month of December, 1977, Plaintiff sold to Panisicadora de Chihuahua, one used forklift truck for the sum of One Thousand Eight Hundred Ninety and No/100 ($1,890.00) Dollars. Delivery of said forklift truck was made to Defendant. Defendant then delivered said forklift truck to Panisicadora de Chihuahua. In return therefore [sic], Defendant received from said purchaser a check for the sum of One Thousand Eight Hundred Ninety and No/100 ($1,890.00) Dollars. Defendant thereupon remitted unto Plaintiff a check in the sum of One Thousand Seven Hundred One and No/100 ($1,701.00) Dollars, wrongfully retaining One Hundred Eighty Nine and No/100 ($189.00) Dollars.
III.
Said retention of Plaintiff’s One Hundred Eighty Nine and No/100 ($189.00) Dollars by Defendant constituted conversion, as the Plaintiff and Defendant herein had contracted and agreed that Plaintiff was to receive One Thousand Eight Hundred Ninety and No/100 ($1,890.00) Dollars in return for said equipment. Although often requested, Defendant has failed and refused to pay Plaintiff the One Hundred Eighty Nine and No/100 ($189.00) Dollars wrongfully retained by Defendant.

We do not agree that such pleadings allege a suit on a contract when the plain language of such pleadings states an action for conversion. Even if such pleadings were otherwise sufficient to allege an action in contract, there is no summary judgment proof to support the award of attorney’s fees. The admissions relied upon by appellee to sustain the judgment merely state that a reasonable attorney’s fee for the services of appellee’s attorney is $500. While this might serve as an admission as to the reasonableness of the attorney’s fees, it in no way admits liability for such attorney’s fees and is not proof that appellant is responsible to appellee as a matter of law for attorney’s fees of $500. There is no summary judgment proof in the record, therefore, to support the award of attorney’s fees.

Attorney’s fees are not recoverable either in an action in tort or in a suit upon a contract unless provided by statute or by contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967); Mun dy v. Knutson Construction Co., 156 Tex. 211, 294 S.W.2d 371 (1956); Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032 (Tex.Comm’n App.1932). The proof necessary to sustain an award of attorney’s fees in a summary judgment case must meet the same standard of proof as in any other cause of action in which summary judgment is sought. The pleadings alone, even though sworn to, are insufficient to constitute summary judgment evidence, and there must be proof such as depositions, interrogatories, admissions, or affidavits, which establish the basis for such fees. There is no such proof here.

Although not properly raised as a point of error, appellant argues in its brief that the trial court was originally without jurisdiction to hear the cause because the amount in controversy was not within the subject-matter jurisdiction of the county court. For this reason appellant suggests that this case should be dismissed. Appellant reasons that if the recovery of attorney’s fees is not here allowed the amount in controversy would be only $189, which it contends would remove it from the jurisdiction of the county court. As a general rule, a demand for attorney’s fees in a petition constitutes a part of the amount in controversy and is considered in determining such amount for jurisdictional purposes. Johnson v. Universal Life & Accident Insurance Co., 127 Tex. 435, 94 S.W.2d 1145 (1936); First National Life Insurance Co. v. Vititow, 323 S.W.2d 313 (Tex.Civ.App.—Texarkana 1959, writ dism’d); Olivas v. Barajas, 285 S.W.2d 894 (Tex.Civ.App.—San Antonio 1955, no writ); Williamson v. Acosta, 257 S.W.2d 772 (Tex.Civ.App.—El Paso 1953, no writ). The rule is further clarified in Gordon v. Carver, as follows:

It is the general rule that the question of jurisdiction, insofar as the amount in controversy is concerned, is determined by the petition, and is concluded by the aver-ments insofar as they state facts in relation to the thing in controversy. Salter v. Nelson (Tex.Civ.App.) 341 S.W.2d 567. Manning v. Lesher (Tex.Civ.App.) 290 S.W.2d 538. The amount in controversy is determined by the value to the plaintiff of the right he asserts in good faith in his pleadings which set forth the facts constituting his cause of action. Brannon v. Pacific Employers Insurance Company, 148 Tex. 289, 224 S.W.2d 466 and cases cited therein. The petition will be accepted as true for purposes of jurisdiction regardless of the truth of the allegations unless it is made to appear by pleadings and proof that the allegations were fraudulently made for the purposes of wrongfully conferring jurisdiction. Barnes v. United States Fidelity & Guaranty Company (Tex.Civ.App.) 279 S.W.2d 919. 15 Tex.Jur.2d, Courts, Section 71.

409 S.W.2d 878 (Tex.Civ.App.—Amarillo 1966, no writ). In the case before us the averments ih the written pleadings in the county court conferred jurisdiction over the cause. We decline to dismiss the action as suggested by appellant.

The trial court improperly granted appel-lee’s recovery for attorney’s fees. The pleadings and proof will not authorize such summary judgment for attorney’s fees.

The judgment is reformed so as to eliminate therefrom the recovery of attorney’s fees in the amount of $500, and, as reformed, the judgment is affirmed.


author: BISSETT, Justice.

text:
    Reve THOMAS, Appellant, v. OIL & GAS BUILDING, INC., Wally Lucio and E. D. Hand, Appellees.
    No. 1348.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 19, 1979.
    Rehearings Denied June 13, 1979.

      David L. Perry, Edwards & Perry, Corpus Christi, for appellant.
    William A. Abernethy, Meredith, Donnell & Edmonds, David J. Dunn, Dyer, Redford, Burnett, Wray & Woolsey, Guy H. Allison, Jack K. Dahlberg, Jr., Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a slip and fall case. Reve Thomas brought suit against Wally Lucio, E. D. Hand and Oil & Gas Building, Inc., to recover damages allegedly sustained by her when she slipped and fell in a hallway in a building owned by Oil & Gas Building, Inc.

Reve Thomas sought a joint and several judgment against the three defendants, each of whom filed a general denial and a plea of contributory negligence. In addition, Oil & Gas Building, Inc., brought a cross-action against Wally Lucio and E. D. Hand for indemnity, or in the alternative, contribution, should plaintiff recover any money damages against it.

Trial was to a jury. All issues respecting the liability of Wally Lucio and Oil & Gas Building, Inc., were answered favorably to them. The jury, however, convicted E. D. Hand of negligence which proximately caused the fall. In answer to the comparative negligence issue, the jury found that the percentage of negligence attributable to Reve Thomas was 45% and that attributable to E. D. Hand was 55%. With regard to the damage issues, the jury found that the reasonable medical expenses incurred by Reve Thomas in the past were $1,956.45; the amount of medical costs she would, in reasonable probability, incur in the future were $500.00; and the amount for loss of earning capacity in the past was $1,000.00. Based on the jury verdict, judgment was rendered for Reve Thomas against E. D. Hand for $1,901.05 and that she take nothing against Wally Lucio and Oil & Gas Building, Inc. Only Reve Thomas has perfected an appeal to this Court.

Some several weeks before plaintiff slipped and fell, an officer of the defendant Building contracted with the defendant Hand for the purchase and installation of carpet in the central hallway of an office building, which was owned by the Building. Hand then hired the defendant Lucio to install the carpet. There was no contact thereafter between the Building and Hand, and there was never any contact between the Building and Lucio.

By her first point of error, plaintiff attacks the trial court’s action in allowing the defendants a total of nine peremptory challenges to the jury panel, as opposed to only six such challenges allowed to her. Prior to the jury voir dire, plaintiff orally moved the trial court to equalize the jury strikes so that the total number of strikes allocated to her would equal the total number allocated to all of the defendants combined. In support of her motion, plaintiff argued that there was no practical antagonism between the three defendants, as evidenced by the pleadings and by a representation by counsel for all defendants that they intended to collaborate in making their jury strikes. This motion was overruled, and the court allocated six strikes to plaintiff and three each to the defendants.

Rule 233, T.R.C.P., provides that each party to a civil suit tried in a district court shall be entitled to six peremptory challenges. The term “each party,” as used in the Rule, does not mean the same thing as the word “person,” but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Retail Credit Company v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 158, writ ref’d). The question of antagonism is to be determined by the information available at the time to the trial court revealed from an analysis of the pleadings, as well as from facts disclosed by pre-trial proceedings and which have been specifically called to the court’s attention. Perkins v. Freeman, 518 S.W.2d 532 (Tex.Sup.1974). The inquiry is whether there is an antagonism as to fact issues on which the jury will pass. Perkins, supra.

To be considered in connection with Rule 233 in multiple party cases is Tex.Rev.Civ. Stat.Ann. art. 2151a (Supp.1978-79), which became effective on July 15, 1971. It reads:

“After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

In construing article 2151a, this Court held, in King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.) that:

“. . .in multiple party cases, Article 2151a does not require, as a matter of law, that each side, after alignment, is entitled to the same number of peremptory challenges as that allowed the opposite side. If the Legislature, in enacting the statute, had intended in all such cases for each side to have the same number of peremptory challenges following proper alignment of the parties, the statute would have so stated. Since it did not do so, the matter is left to the sound discretion of the trial court.”

See also Dean v. Texas Bitulithic Co., 538 S.W.2d 825 (Tex.Civ.App.1976, writ ref’d n. r. e.).

After the parties were aligned by the trial court, it became the court’s duty to equalize the number of peremptory challenges “in accordance with the ends of justice so that no party is given an unequal advantage.” The interests of the defendants in this case were clearly antagonistic on some of the issues. Any advantage which the three defendants may have derived by being allowed to collaborate in making their strikes was offset by the granting of only three peremptory challenges to each of the defendants instead of six.

Plaintiff further contends that the allocation of nine extra strikes to the three defendants was materially unfair. In support of that contention plaintiff argues that it filed a “Bill of Exceptions” with the trial court which advised the court that had she been given the additional strikes, she would have struck four named persons. The document which is contended to constitute a Bill of Exceptions appears in the transcript, not in the statement of facts.

Rule 372(f), T.R.C.P., reads:
“Bills of exceptions not in the statement of facts shall be presented to the judge for his allowance and signature.”

The record does not reveal that the purported bill was ever presented to the judge for his allowance. The document does not bear the signature of the trial judge. The asserted “Bill of Exceptions” is not in compliance with Rule 372(f); we do not consider it for any purpose. See Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App.—Tyler 1975, no writ); Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App.—El Paso 1974, no writ).

Under the record here presented, we do not believe that the action by the trial court in allocating three peremptory challenges to each defendant and six peremptory challenges to plaintiff resulted in a trial or judgment that was materially unfair to plaintiff. No abuse of discretion is shown. Plaintiff’s first point is overruled.

The jury, in answer to Special Issue No. 2, answered “No” to the inquiry as to whether Lucio’s failure to warn plaintiff of the glue on the floor of the hallway was negligence which proximately caused the fall, and in answer to Special Issue No. 3, answered “No” to the inquiry as to whether Lucio’s failure to barricade or rope-off entrances to the hallway was negligence which was a proximate cause of the fall. Those answers are attacked by plaintiff in her third and fourth points as being against the overwhelming weight and preponderance of the evidence.

The carpet installation process involved spreading of glue on the existing vinyl floor of the Building and then laying rubber-backed carpet over the glue. The following diagram shows the layout of the hallways of the Building, and the offices that open into the hallways:

[See following illustration.]

Lucio’s procedure in laying the carpet was as follows: a piece of carpet the length of the hallway would be laid lengthwise, but rolled or folded over to cover only about half the length of the hall; glue would then be spread on the uncovered half of the hall; the carpet would then be unrolled onto the glue and that half of the carpet glued in place. The remaining unglued half would then be flipped back to expose the other half of the hall and the same process would be repeated until the entire floor was covered with carpet. Following this procedure, Lucio had carpeted the east end of the Building the morning of July 12. During the afternoon of July 12, when the plaintiff fell, he was engaged in carpeting the west end.

It is undisputed that the spreading of glue on the vinyl floor of the Building created a slippery and dangerous condition. There is also evidence that a person who is unfamiliar with adhesives would be unlikely to appreciate the slippery or dangerous condition of the floor at the time plaintiff fell. It is undisputed that plaintiff was not familiar with adhesives.

On the day of her injury, plaintiff entered the building through its Front Entrance, turned left down the central hallway and proceeded to the office of Mr. Clyde Wright, where she remained for a short period of time. At the time she entered the Building, she noticed a carpet truck which was parked near the entrance. She said that the presence of the truck gave her the impression that the Building was being measured for the installation of carpet over the coming weekend. After leaving Mr. Wright’s office, plaintiff proceeded to the office of Allen & Shumate at the far west end of the central hallway. The office of Wright is not shown on the diagram, but the office of Allen & Shumate is shown thereon. Plaintiff testified that from the time she first entered the Building until she entered the Allen & Shumate office, she did not see any carpet installer at work in the hallway. Plaintiff remained in the Allen & Shumate office for some twenty minutes. As she exited the office, she initially stepped onto a dry and uncarpeted area about 17 inches wide which extended across the west end of the hallway in front of the Allen & Shumate office. She then noticed the men laying carpet at the place marked (X) on the diagram. At that time the carpet was folded lengthwise against the north wall of the hallway, and the southern half of the hallway was uncovered by carpet. According to plaintiff, after initially stepping into the 17 inch area, she then stepped into the uncovered southern half of the hallway, which was then covered with freshly applied glue, slipped and fell into the office of Rhodes & Hicks. The obviousness of the glue, both as to sight and odor, is in dispute.

It is undisputed that Lucio was an independent contractor who created, in the performance of his work, a dangerous condition on the premises of the building. As such, he owed the same duty of care to business invitees, such as the plaintiff, as the Building itself would have owed. Restatement (Second) of Torts, § 384 (1965). Such a duty would include warning invitees of unreasonably dangerous conditions. Restatement (Second) of Torts, § 343 (1965). The duty to warn would not be affected by the invitee’s knowledge of the dangerous condition. Such knowledge, even if derived from facts which displayed the danger openly and obviously, would only go to the invitee’s own negligence. Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.Sup.1978).

Lucio testified that, because of the risk of harm to occupants of the building, he would rather have installed the carpet after business hours or over the weekend. Royce Poelma, a floor covering contractor, testified that the glue which was used by Lucio was sufficiently transparent that a person unfamiliar with adhesives would be unlikely to appreciate its slippery or dangerous condition. For this reason, he said that the area of work should be completely barricaded if the building is open for business. David Gross, president of the defendant Building, testified that installation of carpet in an office building should be done after business hours or during the weekends because of the risk of harm to persons in the building. There is no evidence that the work area was barricaded or roped-off at any time.

Some people in the building were warned on July 12,1974, and before plaintiff fell, of the danger presented by the glue on the hallway floor. Lucio testified that he instructed his employees to give verbal warnings to the tenants by going into the various offices and talking to the persons present. Although Lucio had no personal knowledge as to whether these instructions were ever carried out, the record contains the testimony of secretaries from both the Allen & Shumate and the Rhodes & Hicks offices who stated that they had received personal warnings.

Plaintiff testified that she never received any warning, verbal or otherwise, while in the building. This testimony stood uncon-tradicted by any evidence of probative force. The mere fact that she was present in offices, the occupants of which had been warned previously, raises no more than a mere suspicion that she, too, received some type of warning. Plaintiff further testified that while she did see the rolled-up carpet to her left as she left the Allen & Shumate office, and while she stepped to her right in order to go around the roll, she did not perceive any danger in stepping to her right.

Considering all of the evidence, and weighing it very carefully, it is our opinion that any finding by the jury that Lucio’s failure to warn or failure to barricade was not negligence is against the great weight and preponderance of the evidence. Further, any finding that a slip and fall was not foreseeable to Lucio would likewise be against the great weight and preponderance of the evidence. The evidence is simply overwhelming to the effect that a reasonable person should have realized the dangerous condition created by the glue and the probability that users of the building would not appreciate the danger. The finding by the jury that Lucio’s negligence in not warning or barricading was not a cause in fact of the plaintiff’s accident is against the great weight and preponderance of the evidence. Plaintiff’s third and fourth points are sustained.

Plaintiff, in her second point of error, complains of the jury’s answers of “None” to the inquiry relating to whether she was entitled to any money damages for “physical pain and mental anguish in the past” (Special Issue 21A), and for “loss of physical capacity other than wage earning capacity in the past” (Special Issue 21C). She contends that such findings are against the overwhelming weight and preponderance of the evidence.

Defendants, by counterpoints, claim that plaintiff, by moving that the trial court accept the jury verdict, waived her objections to such answers by the jury, and further say that this Court should not consider the point because of such waiver.

Rule 293, T.R.C.P., in essence, provides that when a verdict is accurate and in proper form, that it “shall be entered upon the minutes of the court.” If the verdict is not responsive to the issue submitted, or contains conflicting findings, Rule 295, T.R. C.P., provides:

“. . . the court shall call the jury’s attention thereto in writing and send them back for further deliberation.”

In the instant case, the jury awarded plaintiff $1,956.45 as damages for past medical expenses (Special Issue 19). When the verdict was returned, but prior to its being received by the court, counsel for all defendants advised the court that the award of $1,195.46 for past medical bills (Special Issue 19) and nothing for past pain and mental anguish (Special Issue 21A), and nothing for loss of physical capacity other than wage earning. capacity in the past (Special Issue 21C), created a conflict which could be cured by sending the jury back for further deliberation. Counsel for plaintiff, while expressing dissatisfaction with the answers to Special Issues 21A and 21C, nevertheless, told the court that under the circumstances, and in the light of the provisions of Rule 293, the court was required to accept and receive the verdict, and so moved. The court then accepted and received the verdict.

Concerning the matter of conflicting findings, the courts have classified them as 1) irreconcilable conflicts and 2) fatal conflicts. Fatal conflicts are fundamentally erroneous and may not be waived; conflicts which are not fatal but which are irreconcilable may be waived. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). Defendants argue that the matter of conflicting answers in this case is controlled by the rule laid down in the Little Rock case, as follows:

“. . .To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it The test in such [a] case is, whether taking the finding alone in the, one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.

Defendants argue that when the above test is applied to the facts of the instant case, the conflicting answers have no effect with regard to the liability aspect of the trial court’s judgment, and the application of the test here merely results in a change in the amount of recovery to' which plaintiff would be entitled. They further argue that the conflict presented by the jury’s answer to the damage issues in this case is not fatal, and, therefore, any objection which plaintiff may have had to such answers was waived when she moved that the court accept the verdict.

We hold that the answers to Special Issues 21A and 21C are not in conflict with the answer to Special Issue 19. In Little Rock Furniture Mfg. Co. v. Dunn, supra, the conflict was between the liability issues, not the damage issues. Neither the rule therein laid down nor the test announced apply to this case. The answers to all of the issues under discussion (19, 21A and 21C), have no bearing on liability. Special Issues concerning the act, negligence and proximate cause are fact issues which deal with liability as a legal proposition; special issues concerning damages deal solely with independent elements of damage. See Grabes v. Reinhardt Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). An answer favorable to the plaintiff concerning one of the elements submitted and an answer of “none” or “zero dollars” to another issue does not put the answers in conflict. It merely shows that the plaintiff, according to the jury, met his burden of proof in one instance but not in the other.

We are of the opinion that the trial judge properly received the verdict without resubmitting such issues to the jury for further deliberation because of an irreconcilable non-fatal conflict. Plaintiff did not, by her motion, waive her right to attack the answer to Special Issues 21A and 21C in this appeal on the ground that each answer was against the overwhelming weight and preponderance of the evidence.

The fact that plaintiff was injured is not in dispute. As a result of her fall, she suffered a broken right ankle. This injury required surgery, hospitalization for ten days, a cast for approximately six weeks and crutches for approximately six months.

Plaintiff testified that, after leaving the hospital, her ankle was stiff, sore, and burned all the way up to the middle of her calf. Hospital records reveal that she was given prescription pain-killing medicine while in the hospital. Although the operating surgeon testified that plaintiff never complained to him of severe pain, he also testified that pain was a possible side effect of her injury, which he considered “serious.” Plaintiff also testified that before the accident, she was teaching three art classes, painting for recreation and enjoyment, attending Art League field trips, doing volunteer door-to-door work for groups such as the Cancer Society and Heart Fund, and going on dine and dance dates with her husband. After the accident, however, she stated that she could only teach two art classes, found it more difficult to paint, had stopped attending field trips and doing volunteer door-to-door work, and could no longer dance.

As a general rule, it is ordinarily the prerogative of the jury to set damages, but they have no authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. Clark v. Brewer, 471 S.W.2d 639 (Tex.Civ.App.—Corpus Christi 1971, no writ); Taylor v. Head, 414 S.W.2d 542 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.); Bolen v. Timmons, 407 S.W.2d 947 (Tex.Civ.App.—Amarillo 1966, no writ). The jury must award something for every element of damage resulting from an injury. Bazzano v. Ware, 530 S.W.2d 650 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); Shofner v. McKey, 345 S.W.2d 826 (Tex.Civ.App.—San Antonio 1961, no writ); Clark v. Brewer, supra.

An analysis of the evidence in this case shows that the answers to Special Issues 21A and 21C to the effect that plaintiff did not suffer any “physical pain and mental anguish in the past” and did not sustain any “loss of physical capacity other than wage earning capacity in the past” are not only unsupported by any evidence, but are directly contrary to all the evidence. We are not here presented with a question of inadequacy of an award for some amount of damages with respect to the answers to Special Issues 21A and 21C, but whether the complete denial of any money damages for past physical pain and mental anguish and for loss of past physical capacity, as limited, were proper. In order to sustain the jury’s answers to the contested issues, we would be required to hold that a preponderance of the evidence establishes that the injury was totally unaccompanied by pain and mental anguish and that the injury did not, in any way, result in a past loss of physical capacity except for loss in wage earning capacity. We are unable to so hold on the record presented here. The jury’s answers to Special Issues 21A and 21C are against the great weight and preponderance of the evidence. The award of “None” in response to each of such issues is an arbitrary denial of any recovery for each of the elements of damages in question. Plaintiff’s second point is sustained.

By her fifth point of error, plaintiff contends that the trial court committed reversible error in refusing to instruct the jury, with respect to each issue involving the Building, that an owner of property is charged by law with knowledge of any dangerous condition which a reasonable inspection would have revealed. Plaintiff contends that the failure to give the tendered instruction “permeates the charge on all issues pertaining to the Building because what the Building should have done must be considered in light of the duty to inspect.” Plaintiff complains that the charge, as submitted, allowed the jury to assume that the Building “had no obligation to inspect, and was not required to warn or guard against unknown dangers which a reasonable inspection would have revealed.”

Rule 277, T.R.C.P., requires that the court “shall submit such explanatory instructions and definitions as shall be proper . . . ” An instruction is “proper” if it finds support in any evidence and the inferences to be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted. First State Bank & Trust Co. of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Meija v. Liberty Mutual Ins. Co., 544 S.W.2d 690 (Tex.Civ.App—Houston [14th Dist.] 1976, no writ). In Texas, the trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. Spradling v. Williams, 553 S.W.2d 143, 145 (Tex.Civ.App.—Beaumont 1977), aff’d 566 S.W.2d 561 (Tex.Sup.1978); McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); First State Bank & Trust Co. of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). The question before us is whether the requested instruction might have been of some aid or assistance to the jury in answering the issues submitted. This question cannot be answered without first examining the issues which were submitted in this case.

The jury returned negative answers to each of the following special issues which were submitted concerning the liability of the Building in this case:

1. (9) “Do you find from a preponderance of the evidence that the Oil & Gas Center Building knew, or, in the exercise of ordinary care, should have discovered, that glue was being applied to the floor prior to Reve Thomas’ fall?”
2. (10) “Do you find from a preponderance of the evidence that the failure of the building to warn Reve Thomas of the glue on the floor was negligence which was a proximate cause of her fall?”
3. (11) “Do you find from a preponderance of the evidence that the failure of the Oil & Gas Center Building to direct that carpet installation occur outside of regular business hours was negligence which was a proximate cause of Reve Thomas’ fall?
4. (12) “Do you find from a preponderance of the evidence that the failure of the Oil & Gas Center Building to have a particular person in charge of building operations on the day in question was negligence which was a proximate cause of Reve Thomas’ fall?”
5. (13) “Do you find from a preponderance of the evidence that the failure of the Oil & Gas Center Building to inspect its building and to become aware of the carpet installation was negligence which was a proximate cause of Reve Thomas’ fall?”

Plaintiff did not object to the content or to the form of any of the above quoted special issues which were submitted to the jury. In addition, plaintiff does not attack on legal or factual sufficiency grounds the jury’s answers to any of these special issues.

We fail to see how the charge as submitted necessarily allows the jury to assume that the Building was under no obligation to “inspect,” “warn” or “guard against unknown dangers which a reasonable inspection would have revealed.” The special issues specifically required the jury to examine the Building’s conduct with respect to each “obligation” plaintiff mentions. The issues are framed in language that enable the jurors to understand the inquiries being made. The requested instructions were not necessary to assist the jury in properly answering any of the special issues pertaining to the Building’s liability. In fact, we are of the opinion that the requested instruction is sufficiently unrelated to special issues number 10, 11 and 12 that the instruction might have confused the jury in answering these special issues. It cannot be said that the trial judge abused his discretion in refusing to submit the proffered instruction under the circumstances of this case. Plaintiff’s point of error number five is overruled.

That portion of the judgment which decreed that Reve Thomas, plaintiff, take nothing against Oil & Gas Building, Inc., is affirmed, and the action brought against the defendant Oil & Gas Building, Inc., is severed from the action brought against the defendants E. D. Hand and Wally Lucio. Those portions of the judgment which decreed that Reve Thomas, plaintiff, recover $1,901.05 against the defendant E. D. Hand and that plaintiff take nothing against the defendant Wally Lucio are reversed and the cause as to the defendants E. D. Hand and Wally Lucio is remanded to the trial court for a new trial. Costs of this appeal are assessed 75% to the defendants E. D. Hand and Wally Lucio and 25% to the plaintiff Reve Thomas.

AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.