author: CHADICK, Chief Justice.

text:
    Orvis NEVILLE et al., Appellants, v. CASS COUNTY, Texas, et al., Appellees.
    No. 8256.
    Court of Civil Appeals of Texas, Texarkana.
    April 8, 1975.
    Rehearing Denied May 20, 1975.
    J. R. Cornelius, Cornelius & Shivers, Jefferson, J. R. Cornelius, Jr., Zelenskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, • for appellants.
    John D. Raffaelli, Raffaelli & Hawkins, Texarkana, for appellees.
   CHADICK, Chief Justice.

This is an appeal from a judgment of the District Court of Cass County denying Orvis Neville and a group of co-plaintiff landowners a temporary injunction pending judgment in a mandamus suit to compel the abandonment of Cass County’s current method of land assessment for ad valorem taxation. The judgment of the trial court is affirmed.

A judgment entered September 6, 1973, in the Fifth Judicial District Court of Cass County, Texas, in Case No. 21,356, styled Shell Oil Company v. Cass County, et al determined that inequities and unfairness existed in the prevailing Cass County tax structure and ordered the county to “adopt a system of taxation in full compliance with the Constitution and the statutes of the State of Texas whereby all taxable property known to the Tax Assessor, or of which the Tax Assessor may have some notice by diligent investigation, be revalued and placed upon the tax rolls of said county in accordance with the laws of the State of Texas, and that the said Cass County shall make a corrected plan of taxation effective for the tax year 1974.” As the initial step in compliance, the County Tax Assessor-Collector unilaterally increased the value of nearly all rural land in the. county from six dollars ($6.00) per acre, at which it had been assessed for fifteen years, to fifteen dollars ($15.00) per acre for taxation purposes. The assessing officer valued and assessed lands he privately owned at twenty dollars ($20.00) per acre, and assessed land voluntarily valued at more than fifteen dollars ($15.00) per acre by owners at the owner’s figure.

Counsel for Cass County admits by statement in the County’s brief that the unilateral action of “the Tax Assessor in assessing practically all of the rural property at fifteen and no/100 ($15.00) per acre is arbitrary and illegal.” Counsel does not concede, however, that such illegal assessment entitled the appellants to the temporary injunction they prayed for as plaintiffs below. The legal proposition is urged defensively that in order for a landowner to be entitled to such relief, the owner must prove that he, individually, is substantially harmed by the assessment. The necessity of such showing of harm in a collateral attack on the assessment, that is, suit after the tax rolls have been certified, is well established by City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954); Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955). The same demonstration of harm is required when a suit constitutes a direct attack, that is, when suit is instituted before the tax rolls have been certified, as in this instance. Montgomery County et al. v. Humble Oil & Refining Company, 245 S.W.2d 326 (Tex.Civ.App. Beaumont 1951, writ ref’d n. r. e.); Lancaster Independent School District et al. v. Pinson et al., 510 S.W.2d 380 (Tex.Civ.App. Dallas 1974, writ ref’d n. r. e.); Sierra Blanca Independent School District et al. v. Sierra Blanca Corporation et al., 514 S.W.2d 782 (Tex.Civ.App. El Paso 1974, writ ref’d n. r. e.); and Duffey et al. v. Union Hill Independent School District, 490 S.W.2d 201 (Tex.Civ.App.Texarkana 1973, writ ref’d n. r. e.).

No evidence was introduced to show the actual market value of land owned by any one of the co-plaintiffs. In the absence of such evidence there is no factual basis for a calculation that would show an individual landowner’s property is assessed at a greater percentage of its value than the percentage assessed for other property subject to taxation. In other words, the record does not show the inequality of assessment that substantially harms or discriminates against the indi vid-ual taxpayers. The cases last cited are relevant.

Regardless of the failure of proof just pointed out it is contended by the appellants that the record establishes substantial harm under factual circumstances and a theory suggested in Federal Land Bank of Houston v. State, 314 S.W.2d 621 (Tex.Civ.App. Amarillo 1958) rev’d on other grounds, 160 Tex. 282, 329 S.W.2d 847 (1959). The theory as there stated is that failure to tax large quantities of taxable property may be considered on the question of discrimination and substantial injury. It is reasoned in the opinion that, if the budgetary needs of the taxing unit were satisfied by the tax rate adopted and levied on the assessed valuations, the addition of large untaxed quantities of taxable property would necessarily result in a substantial reduction of the taxes of a property owner whose property was assessed and taxed. In connection with this theory it is argued that the trial court’s finding of fact No. 5 is against the overwhelming weight and preponderance of the evidence.

The trial court’s finding of fact No. 5 is: “The Court finds that the failure to include those items of properties on the tax rolls (referring to bank deposits, jewelry, stock shares, etc., mentioned in finding No. 4) was because the same were not rendered by those persons owning the same and because they had not come to the attention of the Tax Assessor or of the Board of Equalization, and that the failure to include such properties on the tax rolls was not intentional or as a result of a deliberate scheme or device to permit certain classes of property to escape their fair share of taxation.” No evidence was introduced showing that money on deposit in Cass County Bank and other financial institutions was owned by persons residing in Cass County or that such money was not owned by charitable institutions or other institutions not subject to taxation. The Tax Collector testified that he wrote each of the banks and the savings and loan associations and asked them to furnish him a list of depositors residing within the county and the amount of deposit of each as of December 31, 1973. These institutions either did not reply or refused to divulge the information requested. Neither would any taxpayer requested by the Tax Assessor to render money or stock do so. The Tax Assessor testified that he was not aware of any method whereby he could obtain information concerning deposits in the bank for the purpose of placing such property on the tax roll. He also avowed that he had not deliberately omitted any taxable property from the rolls and that no property of which he had knowledge or of which he could obtain knowledge was omitted from the rolls. No proof was produced that the Tax Assessor or the county and its officials employed a scheme or device of any nature to permit certain classes of property to escape a fair share of taxation. The record provides no basis for this court to condemn the trial court’s finding No. 5 as being against the great weight and preponderance of the evidence.

Having concluded that finding of fact No. 5 should be sustained it follows that there is no factual basis for the application of the Federal Land Bank doctrine. The validity of that doctrine is not reached. All of the .appellants’ points of error have been carefully examined and are overruled. The overall conclusion is that appellants have not shown themselves to be entitled, as a matter of law, to the injunctive relief prayed. The judgment of the trial court is affirmed. And as an injunction pendente lite was heretofore granted by this court, such order is rescinded and the injunction dissolved.

CORNELIUS, J., not participating.

       Interpolated for clarity.


source: Caselaw Access Project

author: REYNOLDS, Justice. ROBINSON, Justice.

license: Public Domain

text:
    GRAND AMERICAN COMPANY, INC., et al., Appellants, v. Bill STOCKSTILL, Appellee.
    No. 8548.
    Court of Civil Appeals of Texas, Amarillo.
    April 22, 1975.
    Henry T. Ray, Amarillo, for appellants.
    Sanders, Miller & Baker, Oth Miller, Amarillo, for appellee.
   REYNOLDS, Justice.

Plaintiff Bill Stockstill sought and was granted judgment against defendants Grand American Company, Inc., its president, J. C. Brooks, Jr., and its secretary, Eugene C. Fitzhugh, jointly and severally, for the balance due on a promissory note executed by Fitzhugh on behalf of the defendants, together with interest, attorney’s fees and costs. Reversed and remanded.

Defendants’ challenge to the jurisdiction of the trial court over the non-resident defendants must be overruled for two reasons. In the first instance, defendants waived their jurisdictional plea and made a general appearance by filing their answer to the merits before their sworn special appearance motion objecting to the jurisdiction was filed, even though both pleadings were filed on the same day. Rule 120a, Texas Rules of Civil Procedure; Thode, In Personam Jurisdiction; Article 2031B, The Texas “Long Arm” Jurisdiction Statute; And The Appearance To Challenge Jurisdiction in Texas and Elsewhere, 42 Tex.L.Rev. 279, 316 (1964).

Secondly and even if the special appearance motion were viable, the trial court acquired in personam jurisdiction over the non-resident defendants pursuant to the provisions of Vernon’s Ann.Civ.St. art. 2031b, frequently referred to as the “long-arm” statute. The proof of lack of jurisdiction was the burden of defendants. Hoppenfeld v. Crook, 498 S.W.2d 52, 55 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). So far as the record reveals, defendants .offered no proof on the issue. The mechanical procedures taken to effect personal service upon defendants under the statute have not been questioned. Plaintiff’s unquestioned pleadings by which the trial court measured the special appearance plea asserted that the promissory note on which the cause of action is founded was executed in Texas and its provisions obligated defendants to pay the amount thereof in Texas. A copy of the note attached to and made a part of the pleadings confirmed the assertions. Within the meaning of the statute, this transaction on the part of defendants constituted their doing business in Texas so as to bring them within the jurisdiction of the trial court. Art. 2031b. See, also, N. K. Parrish, Inc. v. Schrimscher, 516 S.W.2d 956 (Tex.Civ. App. — Amarillo 1974, no writ), and the authorities cited therein. Defendants’ first point of error is overruled.

Defendants utilize their third point of error to assign error on the part of the trial court in admitting over their objections a copy of the promissory note without proper foundation in violation of the best evidence rule. According to defendants’ brief, the only evidence bearing on the unavailability of the original note was plaintiff’s testimony that he last had it, but he did not know where it was and he just did not have it. Plaintiff has not filed a brief. Defendants’ factual statements neither have been answered nor challenged.

Under these circumstances, Rule 419, T. R.C.P., authorizes this court to accept defendants’ brief as correctly stating the facts and the record without resort to the statement of facts, and to dispose of the appeal in conformity therewith. Campbell v. Campbell, 477 S.W.2d 376 (Tex.Civ.App.—Amarillo 1972, no writ). Notwithstanding, we have examined the statement of facts, and it supports the factual statements made by defendants. The statement of facts does not show that any search was made for nor any diligence was used to obtain the original note. Absent such evidence, a sufficient predicate was not established for the introduction and receipt in evidence of a copy of the note in lieu of the original note. Laster v. Texas Mut. Life Ins. Ass’n., 86 S.W.2d 842 (Tex.Civ. App.—El Paso 1935, writ dism’d).

Point three is sustained and requires a reversal of the judgment. The other points allege error concerning matters which should not arise upon another trial and a discussion thereof is pretermitted.

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

ROBINSON, Justice.

I concur in the result.


author: McDONALD, Chief Justice.

text:
    STATE of Texas and McLennan County, Texas, Appellants, v. Richard L. SCHAEFER (Also Known As Richard L. Schafer), et al., Appellees.
    No. 5410.
    Court of Civil Appeals of Texas, Waco.
    April 17, 1975.
    Rehearing Denied May 22, 1975.
    W. C. Haley, Waco, for appellants.
    Dunnam, Dunnam & Dunnam, Waco, for appellees.
   Opinion

McDONALD, Chief Justice.

This is a condemnation case wherein The State of Texas and McLennan County condemned and took .326 of an acre out of a .559 acre tract owned by defendants. Trial to a jury resulted in a verdict of $25,000. for the land taken, and $4,500. damage to the remainder. The trial court rendered judgment on the verdict for defendants for $7,500. ($29,500. less $22,000. deposited by the State after award by the Commissioners).

Plaintiffs appeal on 6 points contending:

1) The trial court erred in permitting the defendants to prove market value of their property taken by showing what it cost them to rebuild in another location (and to argue such to the jury).
2) The trial court erred in permitting counsel for landowners “to argue the market value issues to mean the amount of money that it would require to be invested to return $4100. per year to landowners.
3) The trial court erred in permitting counsel for landowners to argue “that a proper market value was ten times a rental value of $4100. per year”.
4) The verdict and judgment are grossly excessive under the evidence.
5) The judgment should be reversed because of the cumulative effect of the errors committed by the trial court.

Contention 1 asserts the trial court erred in permitting defendants to prove the market value of their property by showing what it cost to rebuild in another location (and arguing such to the jury).

Defendants operated an implement business on the .559 acres for many years. The taking took almost all of their improvements, and did not leave sufficient land on which to operate the business. Defendants moved their business to a nearby location on the same highway.

Defendant Charles Schafer testified that the remainder was worth $8000. before the taking and $2000. after the taking; and that the property taken had a market value of $49,000. His brother testified he would give the same testimony.

The State’s two witnesses fixed the before and after differences of the remainder at $3000. and $5000., and the value of the land taken at $12,195, and 12,045.

The jury found the before and after difference to be 4,500.; the value of the land taken to be $25,000.; and the trial court rendered judgment on such verdict.

Plaintiff objected to a a number of questions propounded to defendant Charles Schafer concerning his rebuilding of his buildings on a new location. Many of the questions were objected to, which the court overruled.

But there was other testimony as to the cost of reconstruction of the buildings admitted without objection. Thus plaintiff waived objection to the evidence. State v. Dickson, CCA, NRE, Tex.Civ. App., 401 S.W.2d 361, Lone Star Gas Co. v. Smith, CCA, NWH, Tex.Civ.App., 405 S.W.2d 238; Lone Star Gas Co. v. Mitchell, CCA, NWH, Tex.Civ.App., 407 S.W.2d 543; Medina Electric Coop. Inc., v. Ball, CCA, NWH, Tex.Civ.App., 368 S.W.2d 227; City of Rockwell v. Mitchell, CCA, NRE, Tex.Civ.App., 497 S.W.2d 378. Moreover plaintiffs’ witness Robertson testified as to the cost of reconstruction of the kind of buildings on plaintiffs’ property.

In any event from the record as a whole we think the matter harmless. Rule 434, Texas Rules of Civil Procedure.

Contentions 2 and 3 complain of defendants’ counsels’ argument of the market value issues to mean the amount of money required to be invested to return $4100. per year; and in arguing that a proper market value was ten times a rental value of $4100. per year.

Plaintiffs’ witness Robertson testified the property was worth $15,325., and on cross examination he calculated a gross rental value of $4147. per year. He testified the gross figure was before deduction for expenses, taxes and management, after which the net rental figure would be $2363. per year.

Counsel for defendant over objection argued to the jury that $4100. per year rental would require a value of ten times annual rental or $41,000.

Rental values and return on capital investment are matters proper for consideration in determining market value for measure of compensation to be paid for taking property in condemnation proceedings. State v. Haire, CCA, NRE, Tex. Civ.App., 334 S.W.2d 488; Brazos River Conservation and Reclam. Dist. v. Costello, CCA, NWH, Tex.Civ.App., 169 S.W.2d 977.

Assuming without deciding that the argument was improper, from the record as a whole we do not think the argument complained of was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434 TRCP.

Contention 4 is that the verdict and judgment are grossly excessive under the evidence, and contention 5 is that the judgment should be reversed because of cumulative effect of errors.

As noted the landowners evidence was to value the land taken and the damage to the remainder at $55,000.; the State’s witnesses valued the land taken and the damage to the remainder at approximately $17,360.; and the verdict and judgment of the trial court was for $29,500. The verdict and judgment are within the range of the evidence and we think same are not excessive.

All plaintiffs’ contentions and points are overruled.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    TRI-CITIES CONSTRUCTION, INC., Appellant, v. AMERICAN NATIONAL INSURANCE COMPANY, Appellee.
    No. 16481.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 1, 1975.
    Rehearing Denied May 29, 1975.

      Childs, Fortenbach, Beck & Guyton, Stephen R. Kirklin, Houston, for appellant.
    Dibrell, Dibrell, Greer & Brown, Ronald M. Gipson, Galveston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment in favor of American National Insurance Company, the defendant in the trial court.

This controversy grows out of a loan commitment agreement between the defendant and MarkLand Development, Inc., whereby the defendant agreed to provide permanent financing in the sum of $550,000.00 to MarkLand on the security of a completed commercial real estate development. MarkLand was required by said agreement to deposit $11,000.00 as a “standby” fee. Such fee was to be retained by defendant as liquidated damages if such loan was not closed prior to the expiration of the loan commitment on November 30, 1971. The plaintiff alleges that it has acquired from MarkLand all of its rights and interest in and to the loan commitment contract with defendant. The loan was not consummated and the defendant has refused to refund the standby fee or any part thereof for the reason that it is entitled under the contract to retain the same as liquidated damages.

The burden of establishing that there is no genuine issue of material fact is upon the movant, defendant, and all doubts are resolved against him. The defendant has the burden of either negating plaintiff’s cause of action or establishing an affirmative defense as a matter of law. The question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact in the case. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); Gibbs v. General Motors, 450 S.W.2d 827 (Tex.1970).

An agreement in a contract fixing the damages for the breach thereof will not be enforced unless (a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and (b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952).

The plaintiff plead that the sum of $11,000.00 is grossly in excess of any damages which may have been suffered by American National by reason of Mark-Land’s breach of the loan commitment agreement, and that, therefore, the provision is for a penalty rather than true liquidated damages. In this summary judgment proceeding the burden is on the movant, American National, to prove by summary judgment evidence that $11,000.00 is a reasonable forecast of just compensation for the harm which they have suffered by reason of MarkLand’s failure to consummate the loan.

The only evidence bearing upon this issue before the trial court was the contract itself. In this respect the case is different from many of the cases cited to us in which such a provision has been upheld. In Shel-Al Corporation v. American National Insurance Company, 492 F.2d 87 (5th Cir. 1974), in a well-reasoned opinion the court upheld a contract provision substantially the same as the one in question and found it to be an enforceable provision for liquidated damages as opposed to a penalty. The court stated that the weight of authority places the burden of establishing the contract provision to be a penalty on the party urging it. The court further said:

“Even if this burden of proof had been placed on American National, there was adequate evidence to sustain the finding that the $48,000 was liquidated damages, since American National’s probable damages were not readily capable of accurate ascertainment and were not out of proportion to the stipulated $48,000. ...”

Similarly in White Lakes Shopping Center, Inc. v. Jefferson Standard Life Insurance Company, 208 Kan. 121, 490 P.2d 609 (1971), the provision for a standby fee in a permanent loan commitment agreement was upheld as a provision for liquidated damages rather than for a penalty. There the court held that the trial court’s finding that the amount was reasonable was supported by substantial evidence in the record.

A fact issue is raised in the pleadings as to whether or not the sum required to be deposited was reasonable under the circumstances existing at the time the loan commitment was agreed upon, and in this summary judgment proceeding the burden was upon American National to present summary judgment evidence proving the reasonableness of the required deposit.

By counterpoint appellee has urged that the loan commitment was not capable of assignment and therefore the plaintiff was not a proper party to prosecute the suit. It is also urged that the assignment agreement between MarkLand and Tri-Cities shows on its face that it is void.

The agreement between Tri-Cities Construction, Inc. and MarkLand Development, Inc. recites that MarkLand is indebted to Tri-Cities for materials and services rendered and has entered into this agreement for the purpose of discharging, by assignment of certain assets, certain of the liabilities of MarkLand to Tri-Cities. In Section B of this contract entitled “Chrysler Southpoint Dodge Project” in paragraph 1 under Section B, the project is described. There is a recitation that Mark-Land is presently negotiating for the sale of the project upon completion of the building to an investor who will purchase the same subject to a first mortgage and the lease with “Realty”. Paragraph 2 reads:

Assignment to Tri-Cities. MarkLand does hereby assign to Tri-Cities all of its right, title and interest in and to the Chrysler Southpoint Dodge Project described in Paragraph 1 above, and with reference thereto, the parties agree as follows:
(a) MarkLand shall promptly complete the land purchase contemplated by the Build Lease, following which it shall deliver to Paul K. Gaston a warranty deed conveying said property to Tri-Cities, subject only to a construction mortgage and other restrictions of record. Mr. Gaston shall hold said deed unrecorded in escrow. Within the same time, MarkLand shall complete all details necessary for securing the construction and permanent loans on the project. If MarkLand shall not have completed acquisition of the land or completion of the loan details on or before February 20, 1971, Part B of this Agreement shall be null and void and said deed shall be returned to ' MarkLand and any amounts disbursed by Tri-Cities pursuant to Paragraph 3 of Part B of this Agreement, . shall promptly be reimbursed by MarkLand to Tri-Cities.
(b) MarkLand shall, as expeditiously as possible, complete all of the steps required in the proposed transaction and shall pay all costs relating thereto. MarkLand’s obligations shall include the duty to use its best efforts to negotiate a profitable sale of the project to an outside investor, but any such sale shall be subject to the prior approval of Tri-Cities. If MarkLand shall not have, completed the sale to an outside investor by March 15, 1971, the warranty deed held by Mr. Gaston, unless earlier returned to MarkLand pursuant to subparagraph (a) above, shall be delivered to Tri-Cities.
(c) Upon completion of the proposed sale, all proceeds received from the investor over and above the mortgage loan assumed by him shall be disbursed as follows:
(1) All direct costs of MarkLand that were not paid from mortgage proceeds on the project shall be reimbursed to MarkLand.
(2) . The balance of said proceeds shall be paid to Tri-Cities.”

Subparagraph (a) of Section B 2 of the Assignment agreement provides that the agreement shall be null and void if Mark-Land shall not have completed the loan details on or before February 20, 1971. The commitment agreement with American National was dated March 3, 1971, at which time there was only a conditional acceptance, which was finalized by the acceptance of a letter dated March 24, 1971, the acceptance being dated March 30, 1971. There is evidence, therefore, that the completion of the loan details did not occur prior to February 20, 1971.

Subparagraph (b) of paragraph 2 of Section B of the assignment agreement requires MarkLand to try to sell the project. In paragraph V. of the plaintiff’s petition plaintiff alleges that prior to the consummation of the loan between American National and MarkLand, MarkLand arranged to sell the premises subject to the loan commitment to a third party. However, prior to the consummation of such sale, Chrysler exercised its option to purchase said premises. The date of this sale to Chrysler is not alleged nor is it disclosed in the summary judgment evidence. There is no evidence that this sale occurred after February 20, 1971. The summary judgment evidence does not establish that the assignment from MarkLand to Tri-Cities is void. In reaching this conclusion we have found it unnecessary to determine whether or not the fact that the loan details were not settled prior to February 20 as provided in the loan commitment agreement rendered the assignment void rather than voidable.

The law is settled that the obligors of a claim may defend the suit brought thereon on any ground which renders the assignment void, but may not defend on any ground which renders the assignment voidable only, because the only interest or right which an obligor of a claim has in the instrument of assignment is to insure himself that he will not have to pay the same claim twice. Glass v. Carpenter, 330 S.W.2d 530 (Tex.Civ.App.—San Antonio 1959, writ ref’d n.r.e.).

American National has not denied the genuineness of the assignment by sworn plea as required by Rule 93 (i), Texas Rules of Civil Procedure. The plaintiff alleged that by virtue of the assignment agreement dated February 9, 1971 it acquired all of MarkLand’s right, title and interest in the loan commitment agreement. Such allegation must be deemed proved by reason of the rule. American Hydrocarbon Corporation v. Hickman, 393 S.W.2d 197 (Tex.Civ.App.—Texarkana 1965, n.w. h.). The cause of action for the recovery of the money deposited by MarkLand with American National by virtue of the loan commitment agreement is based upon a severable portion of said contract. While a contract calling for credit between the parties is not assignable, the severable portion of the contract not involving the extension of credit can be assigned. Southern Community Gas Co. v. Houston Natural Gas Corp., 197 S.W.2d 488 (Tex.Civ. App.—San Antonio, writ ref’d).

When the assignment contract is viewed as a whole it appears that it was not intended by the parties that MarkLand assign to Tri-Cities its right to require American National to extend credit to MarkLand. MarkLand did assign to TriCities all of its right, title and interest in the project. In view of the provisions of subparagraph (c) of paragraph 2 of Section B of the assignment contract, we conclude that the assignment included the right to recover the deposit, or part thereof, in the event the standby fee provision of the loan commitment agreement should be found to be a penalty. Appellee’s counterpoints cannot be sustained.

Reversed and remanded.


author: DIES, Chief Justice.

text:
    Eunice REMLEY, Appellant, v. James E. STREET, Appellee.
    No. 7666.
    Court of Civil Appeals of Texas, Beaumont.
    May 1, 1975.
    Rehearing Denied May 22, 1975.

      Adams & Browne, Beaumont, for appellant.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   DIES, Chief Justice.

Eunice Remley, plaintiff below, filed suit on a written contract against James E. Street, defendant. Defendant Street filed for summary judgment, which was granted, and from which plaintiff appeals. The parties will herein be referred to as they were below.

Plaintiff’s first point is that defendant failed to have adequate proof “in view of [his] failure to swear to any affidavit or any other sworn proof.”

There is a sworn deposition on file which is sufficient. Stafford v. Smith, 458 S.W. 2d 217, 221 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ). The point is overruled.

Plaintiff’s second point is: “The trial court erred to the prejudice of appellant in granting summary judgment for appellee and in rendering summary judgment against appellant.”

The written agreement on which plaintiff sued is as follows:

“8-11-73
Miss Eunice Remley
I agree to fulfill the corporate obligation (T.D.I.) of eleven thousand dollars owed to you according to our letter engaging you to dispose of our land if I am able to sell my interest to Mr. Ammons. I will attempt to collect from the remaining shareholders the balance.
Thank you very much for your assistance.
Sincerely,

JAMES STREET M.D.”

The T.D.I. Corporation was a Louisiana corporation with its only asset the ownership of land on Toledo Bend Reservoir in the State of Louisiana. Its largest stockholder was defendant Street. Plaintiff’s claim was a commission due for securing a buyer for the Toledo Bend realty. It is undisputed she was not licensed under the Real Estate Dealers License Act [Art. 6573 a, Vernon’s Tex.Rev.Civ.Stat.Ann. (1969)].

In Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584, 586 (1960), Hard as plaintiff alleged that by an oral contract defendant Hall “ ‘employed plaintiff to attempt to find a buyer for the certificates, properties and other assets owned by said defendants’.” Hall owned and operated a trucking business.

The Court wrote (at 588) :

“If the Hall properties, which Hard testified he was employed by Hall to sell, consisted, in part, of the leases on the terminals above set out, then Hard is seeking to recover a commission on the sale of real estate. Under the provisions of Sec. 19 of Art. 6573a, it was the burden of Hard to plead and prove he was a duly licensed real estate broker, or salesman, at the time the alleged cause of action arose.
* * * * ‡ *
“It is made a criminal offense to engage in the business of a real estate broker, or salesman, without having procured the license as aforesaid. In addition, Sec. 19 denies the use of the courts of our State to a real estate broker for the recovery of his commission unless such broker seeking recovery alleges in his pleadings and proves by the evidence introduced in the case that he was a duly licensed real estate broker, or salesman • • [W]e hold that when a fact issue is raised as to whether or not the properties sold by the broker included any real estate, the burden is upon the . broker to secure findings that no real estate was included.” (at 589)

Plaintiff says the real estate matter here was peripheral and that she can enforce the contract without any assistance from the illegal act, citing 13 Tex.Jur.2d Contracts § 215 at 434 (1960).

The “corporate obligation” referred to in the writing set forth above arose from the following writing dated April 19, 1973:

“Dr. Irvin M. Richman, Trustee, and Owners hereby agree to hire Eunice Remley [plaintiff] as an Independent Agent for ninety (90) days from date [April 19, 1973] for the purpose of preparing a sales presentation of Whispering Pines Subdivision, Sabine Parish, Louisiana, (Map attached) on Toledo Bend Lake.
“Her compensation for said presentation shall be 10% of the gross sale price of the property and shall be payable only in the event such sales presentation results in the consummation of the sale.”
The sale was never consummated.

The depositions of the parties to this suit show, as a matter of law, that the true meaning of the letter of August 11, 1973, from defendant to plaintiff, is an agreement by defendant to pay plaintiff a commission for selling his stock in the corporation. According to all of the evidence, plaintiff had no license to sell securities either in Texas or Louisiana. In order to maintain an action for collection of compensation for services rendered in the sale of securities, plaintiff had to allege and prove that she was duly licensed to sell securities. Art. 581-34, Tex.Rev.Civ.Stat. Ann. (1964), Securities Act of the State of Texas.

There being no error, the judgment of the trial court is

Affirmed.


author: PEDEN, Justice.

text:
    POLK COUNTY MOTOR COMPANY et al., Appellants, v. Curtis Floyd WRIGHT, Jr., Appellee.
    No. 16483.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 15, 1975.
    Rehearing Denied June 5, 1975.

      William Drew Perkins, Lufkin, for appellants.

      Joe Ned Dean, J. V. Price, Joe Scott Evans, Groveton, for appellee.
   PEDEN, Justice.

Personal injury suit. Defendant Clayton Hollis was driving a car owned by his employer, defendant Polk County Motor Co., when it overtook and struck a motorcycle operated by plaintiff Floyd Wright as Wright was in the process of turning to his right off U. S. Highway 287.

The defendants appeal from a judgment based on jury findings. We summarize the pertinent ones. Defendant Hollis was found negligent in three ways, each of which was found to be a proximate cause of the collision. In response to Issue No. 9, the jury did not find that the plaintiff failed to keep a proper lookout. Issue 10: This proximate cause issue was predicated on an affirmative answer to # 9, so it was not answered. Issue 11: The jury did not find that the plaintiff turned his motorcycle to enter a driveway when it would not have appeared to a person using ordinary care that such movement could be made with safety. Issue No. 12: This proximate cause issue was predicated on an affirmative answer to Issue #11, so it was not answered. Issue No. 13: Damages to the plaintiff were fixed at $25,250.

Appellants’ first point of error is: the trial court erred in refusing to grant defendants’ motion for mistrial when plaintiff’s counsel, in cross-examining the witness Duke, injected defendants’ liability insurance coverage into the lawsuit.

Mr. Weldon Duke was called as a witness by the defendant. We review the pertinent part of his testimony. He went to Groveton to photograph the motor bike involved in the collision. It had heavy collision damage to its right front and to its back. A photograph of it was admitted in evidence, but Duke testified that it doesn’t entirely show the damage he saw. On cross-examination he related that he was a physical damage estimator for an independent service in Houston, Martin Claims Service, when he took the picture. He looked at the car in Livingston, then came to Groveton to see the motor bike. Martin Claims Service did a lot of work for companies that have coverage on automobiles and motor bikes. A man named Bill Wy-rick sent the claim to Martin Claims Service; he doesn’t know what company Wy-rick was representing. This question was then asked and this answer was given:

Q. “You don’t know then whether or not it was a company that was interested in it from the standpoint of the bike or the standpoint of the car?”
A. “No, sir; I would assume it would be under the interest in the car itself primarily.”

No objection was made. Duke testified about how he located the motor bike and took pictures. He said he works as an adjuster and appraiser. He was asked this question:

A. “ . . . at the time you were making this investigation and were making these pictures, you were representing some of the (sic) insurance carrier, other than Curtis Floyd Wright? In other words, it was someone else, say Polk County Motor Company?”

The question was not answered. Outside the hearing of the jury the appellant moved for a mistrial and objected to the question. The motion for mistrial was overruled, the objection was sustained and the trial judge’s offer to instruct the jury to disregard the last question was declined by appellants’ counsel.

Appellee contends that Duke’s testimony as to where the motor bike was damaged contradicts appellee’s theory of how the collision occurred, so he was entitled to question Duke about his employment to show his interest, bias or motive.

In Aguilera v. Reynolds Well Service, 234 S.W.2d 282 (Tex.Civ.App.1950, writ ref.), the court stated:

“We are unwilling to hold that an agent of an insurance company which is a real party at interest may take the stand as an apparently disinterested witness, give testimony damaging to the opposing party, and then be exempt from cross-examination designed to show his connection with the company.”

In our case the appellants’ theory was that the appellee was going all over the road, so appellants’ driver stopped the car and appellee came over to the right edge of the road and ran into the car. Appellee testified that he was driving on the right-hand side of the road and appellants’ car struck the rear of his motor bike as he was leaving the highway. We conclude that Duke’s testimony, that there was more damage to the motor bike than the pictures show and that there was heavy collision damage to its right front, was calculated to be damaging to the plaintiff-ap-pellee and that the quoted rule from the Aguilera case should be applied here. See also Barton Plumbing Co. v. Johnson, 285 S.W.2d 780 (Tex.Civ.App.1955, writ ref.).

Further, the question complained about was not answered, and no objection was made to the earlier question which Duke answered by saying he assumed that the company that hired him was interested in the car. By then the jury could tell that he considered he was working for the appellants’ insurance carrier. Nothing new was added by the unanswered question. We overrule the first point.

The appellants’ second and third points of error complain that the trial court erred in failing to disregard the jury’s answers to Special Issues 9 and 10 and in failing to grant their motion for judgment n. o. v. because the evidence shows as a matter of law that the plaintiff failed to keep a proper lookout and that such failure was a proximate cause of the collision.

The lead driver is under no duty to keep a lookout for traffic which approaches from the rear unless he does something such as change his lane or direction, stop or suddenly decelerate. Yellow Cab Co. v. Davila, 454 S.W.2d 266 (Tex.Civ.App.1970, writ ref. n. r. e.).

The issues in question were ones on which the appellants-defendants had the burden of proof. In deciding legal sufficiency points of error, we first determine whether there was any evidence to support the jury’s answers to those issues, considering only the evidence and inferences tending to support the findings and disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Witness Thomas Kesinger testified it was dark when the accident happened. He saw the plaintiff when he was approaching, about 75 to 100 yards away, and the plaintiff had his lights and his right-turn signal light on at that time. The plaintiff had come over a hill some 150 to 200 yards from where the witness was. He would say the car was going 65 or 70 miles an hour.

The plaintiff said he was traveling in his right-hand lane when he slowed down to turn off the highway to his right. He had his right-hand turn signal on for 50 to 75 yards before he turned and was hit. He later said he had had his turn signal on for 6 or 8 yards before he started turning. He didn’t see the car or its lights before it hit him, and he was not aware that it was behind him. He had been traveling about 35 or 40 miles per hour and he slowed to 10 or 15 miles an hour in “six to eight yards, I guess.” He later said it took him only three or four yards to slow down for his turn and that he put his brakes on, enough to make his signal light come on, when he was “a hundred, three hundred” feet up the road.

Mrs. Westerfield testified that she heard defendant Mr. Hollis say, immediately after the accident, that he thought the motorcycle was going to turn in the other driveway, but it didn’t. The witness explained that she presumed he meant the second driveway, the one that goes into the cafe where she was working.

Mrs. Jewel Snyder testified that just before the accident happened she was riding in a truck that was meeting the plaintiff’s motorcycle and the defendants’ car; her truck had to stop and let them by, because she was going to turn left into a driveway. When she turned in, right after they went by, she heard the collision. She had seen their lights as they approached.

We overrule this point. The plaintiff’s testimony as to where he was when he slowed down is conflicting, but testimony of estimates of distances is opinion evidence and is not binding. The jury could have, believed he was braking his motorcycle for the last 100 to 300 feet he traveled and that when he was hit from the rear he was slowing down to turn off the road into a cafe. The cafe is away from any town and the record does not show what exteri- or lighting, if any, there was. There was evidence that the car was going at an excessive rate of speed, so when the plaintiff started slowing down, as much as 300 feet before impact, the car would have been far behind him. Just before he was hit the plaintiff had met a truck that was stopped and was signalling for a left turn across his lane. It was dark. Plaintiff did not say he did not look behind him; he said he was not aware that there was a car behind him. He did not stop before he was hit.

The defendants had the burden of showing that just before and as the plaintiff slowed his vehicle enough to turn off the road, he failed to keep such a lookout for vehicles to his rear as a person of ordinary prudence in the exercise of ordinary care would have kept under these circumstances.

We hold that this evidence does not show as a matter of law that he failed to keep such a lookout. The jury was entitled to conclude that the plaintiff was traveling in the proper lane at a reasonable speed (35 m. p. h.), that he activated his turn and brake lights, that he slowed his motorcycle at a reasonable rate and that when he began to slow down the car was so far behind him that a person of ordinary prudence would not have been concerned about it had he looked, but that the car was going so fast it overtook the plaintiff before he could leave the road. Further, that he had to direct his attention to the truck he was meeting and the driveway he was to enter.

See Kerr v. Dildine, 410 S.W.2d 808 (Tex.Civ.App.1967, no writ).

Having decided that the trial court did not err in declining to disregard the answer to Issue No. 9 the lookout issue, we do not reach the point of error based on the answer to No. 10, the proximate cause issue.

Appellants’ fourth point is that the trial court erred in failing to disregard the jury’s answer to Special Issue No. 11 and to grant a judgment n. o. v. because the evidence shows as a matter of law that the plaintiff was in the process of making a right turn into a private driveway when it could not be made with safety. Sec. 68(a) of Art. 6701d, Vernon’s Ann. Texas Civil Statutes, provides:

“No person shall turn a vehicle at an intersection unless the vehicle is in a proper position upon the roadway as required in Section 65, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.”

Under the facts in this case the trial court did not err in refusing to disregard the jury’s answer to Special Issue No. 11. As we have noted, there is evidence that the plaintiff was still on the roadway when he was overtaken and hit by defendants’ car.

Paragraph (c) of Sec. 68 requires one who stops or suddenly decreases speed to give an appropriate signal to any driver immediately to the rear, when there is an opportunity to do so. It appears to be the paragraph of that section which regulates slowing to make a turn.

Appellants’ next two points argue that the trial court erred in permitting the jury to consider plaintiff’s past loss of earnings because there is no evidence or insufficient evidence to warrant a finding of lost earnings in the past. Both these points present only points of legal sufficiency, or no evidence; trial courts are required to permit the jury to consider all pertinent matters raised by any evidence (more than a scintilla).

We overrule these points. The plaintiff testified that he was to go to work the day after the accident for $75 per week. He was hospitalized for several days and a doctor testified" he could not work during the several months he had to wear a cast on his leg.

Appellants’ eighth point is that the trial court erred in permitting the jury to consider the plaintiff’s diminished capacity to labor and work, because there is no evidence of such diminished capacity; their ninth point complains of the same action of the trial court because there was insufficient evidence to warrant a finding of diminished capacity. Again, these points present only legal sufficiency, or no evidence, points. We overrule them.

The plaintiff has an eighth-grade education. He had four breaks in the bones in his right leg and ankle. He still has a steel plate in his leg. His doctor testified that those who have such breaks and operations usually have aches or soreness on long standing or walking, and if the plaintiff worked on his feet for eight hours a day it is very probable that he would have some pain.

The plaintiff testified that he works at carpentry and roofing. Carrying big loads, as he has to do as a roofer, causes pain in his leg. He said that on his first job, some eight months after the accident, he quit working on an apartment project because the man said he was too slow and he couldn’t stay up with the other workers. He stated that he often has pain in his leg, and he cannot work normally with it like he did before.

The appellants’ last point- of error is that the trial court erred in failing to grant a new trial because the jury’s verdict of $25,250 is so excessive as to show jury prejudice against the defendants. We have examined the entire record in this case, and we cannot say the verdict is excessive.

“The burden of establishing that the jury’s evaluation of damages is erroneous is upon the complaining party. . In determining whether a verdict is ‘excessive’ the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on ground of ‘excessiveness’ if there is any evidence to sustain the award; there must be some circumstantial indication of bias or prejudice; matters of pain, suffering, and general damages are peculiarly within the discretion of the jury . . . . The mere fact that the verdict is large is not conclusive that it is the result of passion, prejudice, sympathy or other considerations not found in the evidence.” Hammond v. Stricken, 498 S.W.2d 356 (Tex.Civ.App.1973, writ ref. n. r. e.).

Appellants do not bring forward any affirmative evidence of bias or prejudice. There is evidence in the record, in addition to that already noticed, from which the jury was entitled to believe that the plaintiff suffered severe pain until sedated at the hospital, that he has had pain intermittently ever since the accident in December, 1971, that he wore casts on his leg for a total of nearly five months, that he couldn’t work for nearly a year and a half after the accident and that his medical bills have amounted to more than $1250.

The judgment of the trial court is affirmed.


author: PRESLAR, Chief Justice.

text:
    CLAJON GAS CO., Appellant, v. William TIPTON, Appellee.
    No. 6418.
    Court of Civil Appeals of Texas, El Paso.
    May 7, 1975.
    Rehearing Denied June 4, 1975.

      Bullock & Scott, Russell W. Neisig, Midland, for appellant.
    Paul H. Dionne, Fort Stockton, for ap-pellee.
   OPINION

PRESLAR, Chief Justice.

This is a contract construction case which was tried to the Court without a jury, and judgment was entered that the Appellant, Clajon Gas Co., was bound to furnish natural gas to Appellee, William Tipton, for use on lands owned by William Tipton, pursuant to a contract between Allen Tipton and Clajon Gas Co. We affirm.

The contract is that Allen Tipton will purchase gas from Clajon to operate irrigation wells on certain lands in Pecos County, Texas. William Tipton is the successor party to Allen Tipton by virtue of a provision in the contract providing for assumption and by virtue of the fact that he now owns the land, and the contract provides that it is a covenant running with the land. Section 2 is the provision which creates the controversy in question, and it provides:

“2. For and during the periods set out in numerical paragraph 11 hereof, Consumer agrees for himself, his heirs and assigns, to purchase natural gas from Company, for utilization as the total power requirements (particularly, but without limitation, for the operation of internal combustion engines) necessary for the lifting of water for use in the irrigation of the following described land in Pecos County, Texas:
East Half (E/2) of Section 2, Block 48, Twp. 8, T&P Ry. Co. Survey; and the Tipton Cotton Gin located in the Southwest corner of Section 30, Block C-2, Public School Land Survey
Said natural gas is to be delivered at a point of delivery hereinafter defined to the extent such fuel is available, and Company agrees to ■ supply the same to the extent such fuel is available. The terms of this contract are and shall be deemed covenants running with the above described land, and shall extend to any and all wells utilized in whole or in part in the irrigation of the above described land regardless of whether such well or wells be located on said land. * *

The contract was executed between Ap-pellee’s father, Allen Tipton, and Clajon in 1965. At that time, Allen Tipton owned the property described as the E/2 of Section 2 and 20 acres out of the Southwest corner of Section 30, where the gin was located. Appellee, William Tipton, owned the remainder of Section 30 at that time and now owns all of the properties involved. The gin ceased to operate in 1971, and in 1973 Appellant notified Appellee of a price increase on gas on Section 30, contending that it was not bound by the contract to furnish gas to that section since the gin no longer operated. The contract is for a ten-year period and the price is fixed for such period, and there is no controversy as to the E/2 of Section 2, so the question involved is whether Section 30 is covered by the contract or not.

At the time the contract was executed, William Tipton was farming the E/2 of Section 2 and Section 30, and Cla-jon ran its pipelines to those sections and set a meter in the E/2 of Section 2 and in the Southwest corner of Section 30 near the gin on the land owned by Allen Tipton. This is designated as Meter S-25 and the testimony is that it served not only the gin but the wells located on Section 30. On the trial of the case, Appellee Tipton contended that the contract was ambiguous, and the trial Court found that it was ambiguous and permitted oral testimony as to surrounding circumstances at the time of execution, conversations with Clajon representatives at the time of execution, and evidence as to the conduct of the parties to the years that the contract was alive. The trial Court also admitted a letter from Cla-jon to an attorney, which will he discussed later in this opinion. This evidence, if admissible, substantiates the trial Court’s judgment and interpretation of the contract as binding on Clajon to continue to furnish gas under the contract price to Ap-pellee Tipton for the irrigation of lands located on Section 30. Appellant’s first five points of error are grouped together and relate to this finding of ambiguity and the resulting admission of evidence — it being its position that the contract is not ambiguous and no parol evidence is admissible. We think the evidence substantiates the trial Court’s finding of ambiguity but will not dwell on it at length because there are other reasons why parol evidence is admissible. Looking at the contract from its four corners, it is obvious that the subject of the contract, or its purpose, is gas for the irrigation of farm lands. Aside from the fact that one does not “irrigate cotton gins,” the question is: What lands are involved, or, more specifically, is Section 30 involved? In many places in the contract, it speaks of the “following described land” and the “above described land.” These references throughout the contract to the described land include Section 30 and raise a question as to whether the parties intended that these various provisions of the contract applied to Section 30 or only to the gin. We think the trial Court properly construed it as being ambiguous.

Regardless of whether the contract was ambiguous or not, we think parol evidence was admissible under the rule as stated in Scott v. Walden, 140 Tex. 31, 165 S.W.2d 449 (1942, opinion adopted):

“Whether or not, strictly speaking, the language of the grant is ambiguous need not be discussed, for even though it is not ambiguous on its face parol evidence was nevertheless properly admitted to apply the language to the subject with which it dealt for the purpose of ascertaining the real intention of the parties. First National Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007; Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579; Murphy v. Dilworth et al., 137 Tex. 32, 151 S. W.2d 1004.”

This is an often-applied rule of law, and we think it is applicable here to ascertain the real intention of the parties. The pa-rol evidence admitted in this case clearly established that it was the intentions of the parties that gas should be provided for the operation of the wells on Section 30. Ap-pellee testified that when he was approached by Clajon to buy gas from it he was under contract with another supplier of gas for Section 30, but his father was not, so the contract was made with his father’s name and it used the description of the gin to keep from jeopardizing Appel-lee’s position with the other supplier. It is also undisputed that Appellee was billed for the gas supplied to the gin and Section 30 through the Meter S-25 from the inception of the contract in 1965. And until 1973 Clajon never raised any contention as to the application of the contract to Section 30.

There is yet another rule applicable here. It is set forth in Henry v. Powers, 447 S.W.2d 738 (Tex.Civ.App.—Houston (1st Dist.) 1969, no writ):

“In First National Bank v. Rush, 210 S.W. 521 (Tex.Com.App.1919), it was held that a contract apparently unambiguous would be subject to construction if ambiguity appeared when read in the light of the situation of the parties and the circumstances as they then existed. The court quoted extensively from the case of Klueter v. Joseph Schlitz Brewing Co., 143 Wis. 347, 128 N.W. 43, 32 L.R.A.,N.S., 383, a portion of which reads; ‘ * * * The words of a contract, in themselves, may be plain, yet when applied to the situation with which it deals, not plain, the literal sense leading to such unreasonableness as to suggest that the parties probably did not so intend. * *

In the case before us, the literal sense of providing irrigation for a gin is so unreasonable as to suggest that the parties probably did not so intend.

There was admitted into evidence a letter from Clajon to an attorney, with a copy to the Appellee, authorizing and instructing the attorney to institute collection proceedings against the Appellee for gas on Section 30 through the Meter S-2S. We think the letter was admissible to show the construction placed on the contract by the parties, for no principle of interpretation of contracts is more firmly established than that great, if not controlling, weight should be given by the Courts to the interpretation placed upon a contract of uncertain meaning by the parties themselves. The Courts rightfully assume that parties to a contract are in the best position to know what was intended by the language employed, so said the Supreme Court in James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558 (1950). If the admission of this letter was erroneous, it was harmless error because it was only cumulative of other evidence already before the Court.

Appellant presents points of error that the judgment is erroneous because laches, estoppel and ratification were pled by Tip-ton, as plaintiff, as grounds for recovery, and such are defenses and may not be used to create a contract where one does not exist. Under the construction that the Court gave the contract and which we have affirmed, those pleas are not the basis of the judgment and these points of error are of no moment. All points of error have been considered and all are overruled.

The judgment of the trial Court is affirmed.


author: CURTISS BROWN, Justice.

text:
    Edward L. WHITTENBURG, Appellant, v. Lee WHITTINGTON et al., Appellees.
    No. 1124.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 14, 1975.
    Rehearing Denied June 4, 1975.

      Lynn D. Seets, Joel W. Cook, Schlanger, Cook, Cohn & Mills, Houston, for appellant.
    Herbert N. Lackshin, Tita, Lackshin & Nathan, Houston, for appellees.
   CURTISS BROWN, Justice.

Lee Whittington and Braxton Thompson (appellees) instituted suit against Edward L. Whittenburg (Whittenburg or appellant) seeking certain proceeds from the sale of stock equitably owned by appellees and held in the name of appellant. Recovery was also sought for money expended by the appellees in the partial discharge of a promissory note which they had executed as an accommodation and for the benefit of appellant. Whittenburg claimed that while he had held the stock of Commercial National Bank of Dallas to the extent claimed for the benefit of appellees, that part of the consideration that he had received for it was in the form of a promissory note. He asserted, therefore, that he was not responsible at the present time for such portion of the profits as were represented by the note. In addition he claimed certain offsets. One offset claim was the balance of an indemnity fee for a performance bond required for the construction for the Burnett Bayland Juvenile Home and School. He also claimed a 2% indemnity fee for a bond required in connection with a housing project in Diboll, Texas. He sought offset for appellees’ pro rata share of expenses incurred in connection with the acquisition of the bank stock in question. He also cross-acted concerning a pre-judgment writ of garnishment procured by appellees which appellant said was wrongful and damaged him greatly.

Trial was to the court. It entered judgment for appellees against appellant for $18,874.27, which figure represented the amount claimed by appellees less certain offsets established by appellant. He denied appellant any recovery on his cross-action for wrongful garnishment. Findings of fact and conclusions of law were filed in support of the trial court’s judgment.

Appellant’s first three points complain of the trial court’s action in allowing a 1% offset as a fee for the Diboll bid bond. He complains of the trial court’s refusal to admit into evidence a memorandum prepared by a former associate of Whittenburg. The handwritten notes contained the language: “Ed—2% Ind. fee— Told Lee, told Ed and Lee to get together.” Appellant urges that this language supports his version that a 2% rather than a 1% fee was payable out of the Diboll job. Appellee argues, with some reason, that appellant has not properly perfected his point because he did not offer the instrument itself as part of his bill of exceptions. We prefer, however, to overrule point 1 on the basis that the error, if any, of the trial court in refusing to admit the writing was harmless. Texas Rules of Civil Procedure, rule 434. In the course of the witness’ testimony, he read and interpreted his language and abbreviations on the document with regard to the fee. The court had before it appellant’s construction as to the meaning of the language and the language itself. Exclusion of the actual physical document was not such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case.

Appellant’s points two and three raise legal and factual sufficiency points against the trial court’s factual conclusion that 1% rather than 2% was the appropriate bond fee for the Diboll job. The evidence established that on a previous fee (Burnett Bayland School) the percentage was 1%. Although appellant testified that he understood the fee was to be 2% on the Diboll job, the trier of fact was presented with a typical fact issue. The trial court having resolved the issue against appellant we shall not disturb the finding. We have reviewed the evidence under appropriate standards and overrule these points.

Points four and five present appellant’s contention that he had not received payment of the purchase price of the stock. In this connection he emphasizes that part of the consideration that he had received was in the form of unpaid notes which were the subject of pending litigation. Appellant is correct in his statement that approximately $100,000 of the total $618,000 consideration for the sale of all of the shares was in the form of promissory notes subject to certain possible offsets and as yet uncollected. However, Whittenburg testified that the stock was sold in July of 1968. He thereafter wrote appellees that each were entitled to $11,304.44. Indeed, he attached a demand note dated July 19, 1968, bearing 5% interest, in the principal amount of $11,304.44. It is not necessary for us to determine whether his evidence amounted to a judicial estoppel. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960). Regardless of appellees’ denials that they had received the letters and notes sent them by Whitten-burg, such evidence from appellant would, at the very least, be an admission against interest and direct evidence supporting the trial court’s finding as to the amounts due.

Appellant’s points six and seven continue his attack on the notes that he claimed to have sent to appellees. This attack is based upon appellees’ testimony that the notes had not been received by them. These letters and notes were admissions by Whittenburg which were probative of the amounts to which appellees were entitled to recover and the interest rates agreed to by the parties. Points six and seven are overruled.

Appellant’s points eight and nine state a claim that the trial court erred in not reducing the principal amount owed to appellees by the amounts of the offsets before the allowance of interest on the bank stock profit. As we have stated, Whitten-burg’s evidence established a liquidated and acknowledged amount due from July 19, 1968. There is no evidence of any tender by appellant of the amounts admittedly due under the sale of the Commercial Bank’s stock less any specific offsets. The record is susceptible to the construction that the claimed offsets may not have accrued until after this suit was instituted. Appellant failed to request additional findings of fact relating to interest claimed on his offsets or as to the time such offsets may have accrued.

Finally, appellant’s points ten and eleven claim the trial court erred in concluding that the garnishment issued was not wrongful and that the court should have allowed Whittenburg damages for the writ of garnishment issued under an unconstitutional statute. In this latter connection he cites this Court’s decision in Southwestern Warehouse Corp. v. Wee Tote, Inc., 504 S.W.2d 592 (Tex.Civ.App.— Houston [14th Dist.] 1974, no writ), in which we held that a pre-judgment writ of garnishment issued without notice to the debtor was, under the circumstances of that case, in violation of the 14th Amendment of the Constitution of the United States. The record here presents a sharply conflicting fact issue relating to the garnishment issue. Appellant claimed to have substantial assets known to the appellees which were ample to discharge the indebtedness claimed by appellees many times over. On the other hand, appellees disclaimed any knowledge of property sufficient to satisfy the debt upon which they had sued. On conflicting evidence the trial court was justified in finding that at the time of the issuance of the writ of garnishment appellees did not have personal knowledge of any property owned by appellant subject to execution sufficient to satisfy any judgment which they might have obtained against him. King v. Tom, 352 S.W.2d 910 (Tex.Civ.App.—El Paso 1961, no writ). We should observe that Vernon’s Tex.Rev.Civ.Stat.Ann. art. 4076 (1966) was frequently used as a pre-judgment remedy before our decision in Wee Tote in cases involving liquidated damages. No court before Wee Tote had declared this statute unconstitutional. The garnishment in this suit was issued long before our decision in Wee Tote and upon reliance on an apparently valid statute. We, therefore, hold that it should not be retroactively applied so as to make a garnishment wrongful that had been obtained in good faith. See Lemon v. Kurtzman, 411 U.S. 192, 199, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1972).

In view of the fact that we have considered all of appellant’s points and have overruled them, we affirm.

Affirmed.


author: KEITH, Justice. STEPHENSON, Justice

text:
    Ernestine MOORE, Appellant, v. J. WEINGARTEN, INC., Appellee.
    No. 7695.
    Court of Civil Appeals of Texas, Beaumont.
    April 17, 1975.
    Rehearing Denied May 22, 1975.

      Adams & Browne, Beaumont, for appellant.
    Benckenstein & Norvell, Beaumont, for appellee.
   KEITH, Justice.

Plaintiff appeals from a take nothing judgment entered after the jury had failed to find the defendant guilty of negligence proximately causing her injuries. Plaintiff sustained an injury in the course of her employment with defendant, a non-subscriber under the Workmen’s Compensation Law of Texas. The general rules relating to the rights, duties, and obligations of the parties inter se occupying this relationship were stated recently by us in J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 944 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.), and need not be restated here.

An extensive review of the facts is unnecessary because of the nature of the attack upon the judgment. It is sufficient to state that the plaintiff, an employee at the lunch counter in defendant’s supermarket, went into a nearby aisle in furtherance of the business of her employer. She fell when she stepped upon a grape near and adjacent to the produce counter where grapes were displayed for sale. There is no testimony in the record that the defendant placed the grape upon the floor, that it had any knowledge of its presence, or the length of time the grape had been on the floor.

Plaintiff pleaded specific acts of negligence which we summarize in the margin. The jury, answering a “Van Zandt” issue, found that the plaintiff sustained injuries at the time and place alleged. The jury answered “no” to an issue inquiring if defendant “failed to wrap, package, or bag grapes as would have appeared reasonably practical to a person using ordinary care.” The jury found that defendant failed “to place reasonably practical covering on the floor of the produce department as would have appeared reasonably practical to a person using ordinary care”; but the proximate cause issue was answered in the negative. The jury findings (or more correctly, non-findings) are not challenged by the plaintiff in this appeal.

Instead, the appeal is confined to two basic complaints: (1) the trial court erred in refusing two requested special issues which we will mention in a moment and (2) the trial court erred in sustaining special exceptions to plaintiff’s pleadings which invoked, according to the plaintiff, the doctrine of strict liability in a defective products case. We will treat the contentions in the order stated.

Plaintiff requested, and the trial court refused these issues:

1. Did defendant fail “to exercise such care as an ordinarily prudent person would have exercised to inspect, discover and remove subject grape from the floor?”

2. Was such failure “to inspect, discover and remove said grape ... a proximate cause of” plaintiff’s injuries?

At the outset of our discussion, we note that the nature of the duty of the landowner to use reasonable care to make his premises reasonably safe for the use of his invitees is, in all material respects, identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work. Sears, Roebuck & Company v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 240 (1955). Citing Robinson, supra, our Supreme Court reiterated the rule: “An employer’s duty is to exercise care to provide the employee with a reasonably safe place to work.” Leadon v. Kimbrough Brothers Lumber Company, 484 S.W.2d 567, 568 (Tex.1972).

Omitting consideration of the question of whether the requested issues constituted “controlling” issues, it is clear that plaintiff was entitled to a submission of the requested issues only if they were supported by the “written pleadings and the evidence.” Texas Rules of Civil Procedure, rule 277. The duty to furnish an employee a safe place to work, in a situation involving a foreign substance upon the floor, is identical with the duty involved in a “slip and fall” case. Robinson, supra.

We have but to substitute “grape” for “bean” to make the facts in this case coincide with those recited by Justice Stephenson in Swan v. Kroger Company, 452 S.W.2d 793 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). There, this court quoted from the leading case on the subject, H. E. Butt Grocery Co. v. Johnson, 226 S.W. 2d 501, 502 (Tex.Civ.App.—San Antonio 1949, writ ref’d n. r. e.), where Justice Norvell set out the three requisites to a plaintiff’s recovery in such a case: “1. That the defendant put the foreign substance upon the floor, or, 2. That the defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it, or 3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.”

It would unduly extend this opinion to cite the many cases following Johnson, supra. It is sufficient to say that the rules therein enunciated have been followed consistently by our courts, including this court. See, e. g., Beard v. Henke & Pillot, Inc., 314 S.W.2d 844 (Tex.Civ.App.—Beaumont 1958, no writ); O’Neal v. J. Weingarten, Inc., 328 S.W.2d 793 (Tex.Civ.App.—Beaumont 1959, writ ref’d n. r. e.).

A finding of negligence in failing to discover the grape on the floor could be supported only by evidence that it had been there for a sufficient period of time that an inspection, as required by the standard of due care, would have revealed its presence. As indicated earlier, there is no such evidence in this record.

There being no evidence in the record to warrant the submission of the requested issues, it was not error for the trial court to refuse the submission thereof. This fundamental rule needs no citation of authorities; but, in 57 Tex.Jur.2d, Trial § 453 at 94 (1964), many cases are cited in support thereof.

Moreover, as pointed out in Swan v. Kroger, supra, there is no evidence in the record which would have supported the submission of the proximate cause issue. Causation, consisting of two distinct concepts, cause in fact and foreseeability [Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 (1961)], each concept must find support in the evidence before the court is required to submit the issue. Swan, supra (452 S.W.2d at 796). Cause in fact could be raised only by some proof that the grape had been upon the floor for a sufficiently long period of time that the defendant, in the exercise of its duty of making reasonable inspection of its floor, could have discovered and removed it. We find no evidence in the record supporting the concept of cause in fact. Point one is overruled.

Plaintiff has a series of points of error complaining of the action of the trial court in sustaining special exceptions to her pleadings tendering the doctrine of products liability as a ground of recovery in this case.

The reason for the invocation of the doctrine of strict liability in this master-servant case is frankly stated by plaintiff:

“Under the theory of strict liability the Plaintiff was not under a burden to prove negligence on the part of the Defendant, but rather that there was a defect in Defendant’s product which made it unreasonably dangerous to the user, consumer or bystander and that such defect was a producing cause of Plaintiff’s injury.”

In pointing to the record which plaintiff says would support the doctrine, counsel says:

“The testimony is abundant that under the conditions, in which the Defendant was selling its product the failure to package created an unreasonable danger to consumers and bystanders.
⅜ ⅜ Jjc ‡ ⅝ ⅜
“In this case the Defendant’s product was defective and unreasonably dangerous within the framework of the strict liability doctrine by reason of inadequate packaging.” (emphasis supplied)

Neither party cites us to a single case in any jurisdiction which has held that a fresh edible grape, even on the floor of a busy supermarket, constituted a defective product which was unreasonably dangerous. Plaintiff’s citations, mentioned in the margin, are all well-recognized cases which govern products within the established parameters of the doctrine; but, we do not find them either persuasive or pertinent to the case under consideration.

The very statute which plaintiff invoked in bringing her suit, Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 1, subdiv. 4 (1967), required a showing of negligence, the subdivision reading:

“In all such actions against an employer who is not a subscriber, as defined hereafter in this law, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.”

Our courts have consistently held that a plaintiff proceeding under the quoted statute labors under the duty of proving that negligence on the part of his employer proximately caused his injury. See, e. g., Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 978 (1947); Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365, 366 (1948); J. Weingarten, Inc. v. Sandefer, supra (490 S.W.2d at 944).

By urging the applicability of the doctrine of strict liability-because of a defective product, plaintiff seeks, of course, to escape her burden of proving negligence. We need not decide in this case whether the doctrine of strict liability can ever be invoked when the relationship of master and servant exists and the suit proceeds under the statute quoted earlier. It is sufficient to state that we do not find that the single edible grape involved in this case was a defective product under Dean Keeton’s concepts as set out in Technical Chemical Company v. Jacobs, 480 S.W.2d 602, 605 (Tex.1972). We find no error on the part of the trial court in striking plaintiff’s allegations relating to products liability and all of plaintiff’s points attacking such action are overruled.

Affirmed.

STEPHENSON, Justice

(concurring).

I concur in the result reached in the majority opinion, as well as each and every pronouncement of law. However, in connection with that portion of the case pertaining to products liability, I would go one step further. I would hold that the doctrine of strict liability cannot be invoked in an action brought under Tex. Rev.Civ.Stat.Ann. art. 8306, section 1, subdivision 4 (1967). As quoted in the majority opinion, it is plainly stated that:

“[I]t shall be necessary to a recovery for the plaintiff to prove negligence

Unless the legislature amends this statute, I would require a plaintiff to allege and prove negligence in order to recover.

      . Plaintiff testified on cross-examination:
      “Q. All right, you don’t know when this grape was supposed to be on the floor or got there, do you?
      “A. No, sir, I don’t.
      “Q. You have no idea who put it there, do you?
      “A. No, sir.

        “Q. You have no idea how long it had been there, do you?
      “A. I don’t.”
      At another place in her testimony, plaintiff testified that the grape she stepped on was full and round and, in her opinion, had not been stepped on before she fell.

      .Plaintiff alleged that the defendant was negligent in: (1) failing to provide a reasonably safe place to work; (2) failing to have mats or some non-skid substance on the floor so that it would not be slippery when grapes fell thereon; (3) failing to have adequate help to keep the floor clean; (4) failing to “wrap, bag or package bunches of grapes before displaying them on the counter” ; (5) failing to have an employee wrap, bag or package bunches of grapes selected by the purchasers; (6) failing to give an adequate warning of the hazard and likelihood of grapes being on the floor in the vicinity of the grape display counter; (7) failing to reasonably and adequately inspect the floor, discover and remove said grape as a reasonably prudent person would have done.

      . Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530 (1958).

      . We do not encounter the “no duty” concept, so frequently encountered in this type of case, since that doctrine is inapplicable in a master-servant relationship. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 377 (Tex.1963). Similarly, the so-called “assumption of risk” doctrine has been removed from the master-servant area by statute. Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8306, § 1, (3), (1967) ; Halepeska, supra; Great Atlantic & Pacific Tea Company v. McGee, 396 S.W.2d 896, 897 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). See also, Adam Dant Corporation v. Sharpe, 483 S.W.2d 452, 455 (Tex.1972), relating to the owner-invitee relationship.

      . In this case we do not reach the question of whether a simple submission of the negligence issue of failure to furnish a safe place to work followed by a proximate cause issue would have been permissible. See Tex.R.Civ. P. 277; J. Pope and W. Lowerre, “Revised Rule 277 — A Better Special Verdict System for Texas,” 27 Sw.L.J. 577, 581 (1973); Members Mutual Insurance Company v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.— Houston [1st Dist.], 1975) (not yet reported).

      . Each point reads: “The trial court erred to the prejudice of the plaintiff in ruling that this was not a products liability suit and in striking those portions of the plaintiff’s pleading alleging a defective product” upon sustaining a particular exception to a numbered paragraph of her petition.

      . Special Issue No. 1 submitted an issue on failure to package the grapes. The jury answered “no” to an issue inquiring if defendant “failed to wrap, package, or bag grapes as would have appeared reasonably practical to a person using ordinary care.” This was a submission of her negligence theory.

      . Plaintiff relies upon the following authorities which are cited in this order: McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) ; Restatement (Second) Torts 2d § 402A (1965) ; Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969) ; Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S. W.2d 779 (Tex.1967) ; Prosser, Torts, § 100, p. 663 (4th Ed. 1971) ; C. A. Hoover and Son v. O. M. Franklin Serum Co., 444 S.W.2d 596 (Tex.1969) ; Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.1972) ; Ross v. Up-Right, Inc., 402 F.2d 943 (5th Cir. 1968) ; Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967).


author: STEPHENSON, Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Shirley M. HIGGINBOTHAM, Appellee.
    No. 7696.
    Court of Civil Appeals of Texas, Beaumont.
    May 1, 1975.
    Rehearing Denied May 22, 1975.

      Marlin Thompson, Orange, for appellant.
    Benckenstein & Norvell, Beaumont, for appellee.
   STEPHENSON, Justice.

Plaintiff, Shirley Higginbotham, brought this suit against her employer, J. Weingar-ten, Inc., to recover damages for injuries she received while working in the course of her employment. Defendant is a non-subscriber under the Workmen’s Compensation Law and this suit is authorized under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8306, § 1, ¶[ 4 (1967). Trial was by jury and judgment rendered for plaintiff upon the jury findings. The parties will be referred to here as they were in the trial court.

The general rules relating to the rights, duties and obligations of the parties in this situation were stated by us in J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.), and will not be restated here. The two rules set forth there, together with citations which are applicable, are the continuing nondelegable duty of an employer to furnish his employees a reasonably safe place to work and safe and suitable appliances so the employees may carry on their work with reasonable safety. Also, in order to recover, plaintiff had to plead and prove actionable negligence on the part of defendant which proximately caused her injuries.

The jury found defendant negligent in failing to provide plaintiff a ladder or other means to remove the bacon from a high stack, and in stacking the bacon too high, and that each act of negligence was a proximate cause of the occurrence in question. Defendant attacks each of those findings as having no support in the evidence and in having insufficient support in the evidence and as being contrary to the great weight and preponderance of the evidence. We pass upon the no-evidence points by considering only the favorable evidence as to such findings, and we pass upon the remaining evidentiary points by considering the entire record. We proceed to review the evidence favorable to the jury findings in first passing upon the no-evidence points.

Plaintiff gave the following testimony: She first went to work for defendant in 1959, as a meat wrapper, which is the same type of work she was doing when she received this injury on the 27th day of January, 1971. She had worked for defendant at several different stores, most of that time. She had been working at the store where she received this injury since April, 1970. The duties of a meat wrapper generally are to wrap the meat, weigh it, display it, and take care of the cured meat case which included bacon. She had to run to get all of her work done on time. There were four employees in the meat department: Bobby McIntyre, the meat manager; Harry Hall, a butcher; and Bobby Miller, an apprentice butcher. Only plaintiff and Harry Hall were on duty the day of the injury. Plaintiff arrived at work about 7:30 that morning. Plaintiff’s duties that morning were to pull the meat out of the case that was out of date, for the butcher to redo or do away with; fill the cured meat case and wrap the hamburger and put it out before the store opened at 9 o’clock. Harry Hall was cutting the red meat. Plaintiff had taken care of the red meat, that is, carried it back, weighed it and brought it back out. She went to the chicken cooler to get the cured meat. She had brought a shopping cart to carry the bacon in. The chicken cooler is a separate room by itself about 8 x 10 in size. It is not a freezer although it is kept at a low temperature. The floor is cement with a drain in the center, and is always damp. The poultry is covered with crushed ice which continues to melt and run off on the floor. There are two shelves in the cooler, one from four to six inches off of the floor and the second about five and a half feet from the floor. Plaintiff got some bacon off of the lower shelf and put it in the cart, and then began to reach for a box of Wilson bacon stacked on the upper shelf. This bacon was stacked three boxes high, each box weighing thirty pounds, and being about ten inches high and about two feet long. Plaintiff was trying to reach the box on top and first put her foot on the cart and it moved. She then put one foot on the lower shelf with the other on the floor, and both feet slipped causing plaintiff to fall, striking the cart and receive the injuries complained of. The box of bacon she had been reaching for then fell on her. There was no ladder in the cooler.

Bobby McIntyre gave the following testimony: He had been employed as the meat manager at the same store at which plaintiff was working at the time of her injury. That plaintiff was employed as a weigher and wrapper and part of her responsibilities was to stock the display case with meat. He was not working the day she was injured. He estimated the cooler to be about 6x8, with shelves at six inches and six feet above the floor. That it was not plaintiff’s duty to stack the bacon in the cooler. He estimated the boxes of Wilson bacon to be about ten inches high and weigh twenty-four pounds. The floor of the cooler was generally wet. Plaintiff was not violating any rules in trying to get the box of bacon down, and he was sure it had been done several times. He had seen bacon stacked three boxes high on the top shelf lots of times. There was no ladder in the cooler and no ladder in the meat department. There was a ladder sixteen to twenty feet long in the back storage, but it would have been impossible to get it into the cooler. Plaintiff had to work pretty fast to get her work done “because they expect us to have our case up by the time the store opened.”

Phillip Dean Cook gave this testimony: He had worked for defendant in the same store in which plaintiff was injured. At the time he worked there, there was no ladder available for use in the chicken cooler. There was a long ladder in the back of the store somewhere, but it could not be used to stand on in the cooler.

The foregoing testimony supports the jury findings that defendant was negligent in failing to provide plaintiff a ladder or other means to remove the bacon from a high stack, and in stacking the bacon too high, and that each ground of negligence was the proximate cause of the occurrence in question. The no-evidence points are overruled. Defendant’s evidence contradicting that of plaintiff did no more than raise questions of fact for the jury to determine, which it did, favorably to plaintiff. The remaining evidentiary points as to those jury findings are overruled.

Defendant has points of error attacking the jury award of $10,000 for past medical expenses. On oral argument, counsel for plaintiff conceded that the proof would not support that amount, and that the plaintiff is limited to a recovery of $5,960.66, in accordance with the evidence. However, plaintiffs petition alleges the past medical expenses to be $500, and such pleadings were never amended. The rule is well established that a judgment for money damages in excess of the amount pleaded is erroneous, even though the jury awarded a larger amount. Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S.W.2d 751 (1951); Kleiner v. Eubank, 358 S.W.2d 902 (Tex.Civ.App.— Austin 1962, writ ref’d n. r. e.); Williams v. General Motors Corporation, 501 S.W.2d 930 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.).

Defendant has points of error complaining about the award of $5,000 for future medical expenses. Counsel for plaintiff conceded on oral argument that there is no proof in the record that the cost of such expenses was reasonable, and that it was error for the trial court to allow such award in its judgment.

Defendant also has a point of error complaining about the refusal of the trial court to give it credit in the judgment for the sums of $833.00 paid to plaintiff and $2,861.85 paid for plaintiff’s medical expenses. Defendant’s pleadings included allegations as to such payments and asked for credit for such payments. It was then stipulated into our record that such payments had been made. Defendant is entitled to a credit of $833 on the general damages allowed, and the amount of credit due for past medical expenses paid is sufficient to offset the balance plaintiff could have collected under the pleadings.

Defendant’s point of error that the general damages are excessive is overruled. The evidence in this record, including surgery upon her back three times, supports the jury finding of $20,000.

The judgment of the trial court is reformed to allow plaintiff to recover the total sum of $19,167, with interest from the date of the original judgment, November 14, 1974. The costs of this appeal are divided one-half to each party.

Reformed and affirmed.


author: PHILLIPS, Chief Justice.

text:
    The STATE of Texas et al., Appellants, v. Thomas Calvin RAMFIELD, Appellee.
    No. 12256.
    Court of Civil Appeals of Texas, Austin.
    May 14, 1975.
    Rehearing Denied June 4, 1975.

      See also, Tex.Civ.App., 523 S.W.2d 456.
    Kirk Patterson, Arthur Mitchell, Mitchell & Stewart, San Antonio, William E. Bachus, County Atty. of Bell County, Bel-ton, for appellants.
    Hume Cofer, Austin, for appellee.
   PHILLIPS, Chief Justice.

The District Judges of Bell County appointed appellee, Thomas Calvin Ramfield, to be the County Auditor of Bell County, Texas. The commissioners’ court then brought this suit in the nature of quo war-ranto to determine whether appellee should be ousted from office. Trial was to the district court in Bell County pursuant to which the court entered a take nothing judgment against the State. It is from this judgment that an appeal has been perfected in this Court. We affirm the judgment.

This appeal presents two principal questions for our determination. The first is whether the trial court erred in failing to grant the quo warranto since appellee had accepted service retirement benefits from the Texas County and District Retirement System and is ineligible to become Bell County Auditor under Section 7, 1(d) of Article 6228g, Vernon’s Texas Civil Statutes. We think not, consequently, we overrule this point.

There is no question but that appellee accepted service retirement under the Texas County and District Retirement System as a result of previous employment in Nueces County. Nueces County is a participant in the above mentioned retirement system and at all relevant times Bell County was (and is) also a participant in this same system.

Appellants contend that Section 7, Subdivision 1(d) of Article 6228g, V.C.S., proscribes appellee’s employment in Bell County by virtue of the following provision : “Any member who has accepted service retirement shall be ineligible and disqualified to resume or continue service in any participating subdivision.”

We do not agree with appellants’ position here. The statute does not prohibit employment; it prohibits further “service” which would increase retirement benefits. The word “service” is defined by the Act in Section 2, Subsection 8: “‘Service’ means the act and period of performance of duty as an employee of the employing subdivision.” (Emphasis added)

This definition of “service” is used in the Act as a predicate for the definition of “current service,” “prior service,” and “credible service.” Article 6228g, Section 2, Subsections 9, 10, and 11.

The distinction between employment and service is apparent in the language of the Act. For example, in Section 6, Subsection 1(b), as amended in 1971, the last clause reads: “ . . . and in such event, the total period of such employment for which such employee is allowed prior service credit hereunder shall be considered service rendered to the participating subdivision for purposes of this Act.” (Emphasis added)

Subsection 1 of Section 7 is headed “Service Requirement Eligibility,” and paragraph (d) of Subsection 1 simply provided a restriction on eligibility to accumulate additional service.

We hold that appellee is not a “member,” as defined by the statute. The statutory provisions concerning “membership” state the same arrangement and purpose as the “service” provisions discussed above. The words “member” and “employee” are not synonymous. A “member” is precluded from increasing his “service” after he accepts retirement, but that provision has no bearing on the employment of an individual whose “membership” has terminated and whose amount of “creditable service” has been fixed.

A “member” is any employee included in the “membership” of the system. Section 2, Subsection 7. Section 3, Subsection 2 is headed “Participation of Employees,” and under Subsection 2(e)(4) appellee’s “membership” terminated when he became an annuitant.

Appellants assert that the statute means that an individual receiving benefits is still a “member” because the statute provides that a “member . . . shall be entitled to receive” a benefit, and that “any member . . . may elect to receive” his benefit on certain optional bases. Section 7, Subsection 2(a) and 3(a), These quoted provisions state only the circumstances under which members become entitled to benefits or to the election. They do not purport to say that “membership” continues after the payment of benefits begins. At that point, when the member becomes enti-tied to and receives a benefit, membership” terminates and the “member becomes an annuitant.” Section 3, Subsection 2(e)(4).

Appellants also assert that the statutory-definition of “member”- renders Section 7, Subsection 1(d) meaningless, because, they contend, there can be no “members” who have accepted service retirement. However, under the statute there is a class of members who have accepted service retirement but have not terminated their membership by becoming annuitants.

We also overrule appellants’ point wherein they contend that the trial court erred in failing to grant the quo warranto because appellee has not resided in Bell County for two years as required by Article 1648 and the District Judges did not properly find that no qualified citizen of Bell County could be procured for the position of County Auditor. Article 1648 states that if no qualified citizen of the county can be procured, the judges may appoint a qualified citizen from another county.

After hearing evidence, the learned trial court found that the District Judges made and conducted a proper and diligent effort to procure a qualified citizen of Bell County for appointment as County Auditor; however, no qualified citizen of Bell County applied or was found for that position. The court further found that appellee was, and is, a competent certified public accountant of at least two years’ experience in auditing and accounting and is thoroughly competent in public business details.

In reviewing the record before us, we find that the findings made by the trial court are amply supported by the record. We do not find, as contended by appellants, that the judges improperly delegated their responsibility in this matter to a private citizen, nor did they arbitrarily impose an unreasonable requirement in requiring that the applicant be a certified public accountant.

The judgment of the trial court is in all things affirmed.

      . Under authority of: Article 1645, Vernon’s Ann.Texas Civil Statutes.