text:
    Adele Louise JOHNSON, Appellant, v. Stanley Joseph JOHNSON, Appellee.
    No. 8671.
    Court of Civil Appeals of Texas, Texarkana.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Stephen B. Early, Longview, for appellant.
    John Fisher, Fisher & Patton, Longview, for appellee.
   RAY, Justice.

This is a divorce case. Stanley Joseph Johnson, appellee, and Adele Louise Johnson, appellant, both petitioned the court for a divorce and a division of the estate of the parties. A jury was waived and the case was tried to the court. The divorce was granted and the court entered a decree dissolving the marriage and dividing the estate of appellant and appellee. The residence of the parties was declared to be the separate property of the husband and it is from that portion of the judgment that the wife has perfected her appeal. No findings of fact or conclusions of law were filed by the trial court.

Appellant-wife submits two points of error for our consideration and asserts that the trial court erred in failing to find that she owned an undivided one-half interest in the residence as her separate property. The trial court found that the residence was the separate property of the husband. The law of this State relative to appellate review, in the absence of the filing of findings of fact and conclusions of law, is that the appellate court will not substitute its opinion for that of the trial court respecting the credibility of the witnesses and the weight to be given the evidence, but the appellate court will presume that the trial court found all facts in favor of its judgment and the appellate court will be bound by such findings if supported by sufficient evidence of probative force in the record. The judgment of the trial court will be affirmed.

The pertinent facts in this case are that appellee-husband proposed marriage in May of 1973; that he came from Florida to Longview in search of a dwelling; that on July 7, 1973, he signed a contract to purchase a house in which he alone was named as the purchaser; that the parties were married on August 14, 1973; that on August 24, 1973, a deed was executed naming both husband and wife as grantees; that the husband paid the entire purchase price out of his separate funds; and, that suit for divorce was filed on May 16, 1978.

Appellant contends that a presumption of gift of an undivided one-half interest in the house and land arose when the husband paid for the property out of his separate funds but had her named along with himself as the grantees in the deed. Ordinarily, property acquired during marriage is characterized as community property. Tex. Family Code Ann. § 5.01. There was a presumption that the property here involved was community, but that presumption was overcome when the parties stipulated that the house and land were paid for out of separate funds of the husband and that the contract to purchase the property was entered into prior to the marriage. However, because the deed named husband and wife as grantees, a second presumption arose, a presumption that the husband intended to give his wife an undivided one-half interest in the residence. Hampshire v. Hampshire, 485 S.W.2d 314 (Tex.Civ.App. Fort Worth 1972, no writ); Carriere v. Bodungen, 500 S.W.2d 692 (Tex.Civ.App. Corpus Christi 1973, no writ); 27 Sw.L.J. 27, 33 (1973).

The question before the trial court was whether or not the evidence adduced at the trial was sufficient to overcome the presumption of a gift to the wife of an undivided one-half interest in the property. The question before this Court is whether there was sufficient evidence of probative value presented to the trial court on which it could resolve the fact question of gift vel non. The favorable facts supporting the trial court’s judgment are that:

The inventory and appraisement filed by the wife pursuant to the order of the court shows that the wife did not claim an undivided one-half interest in the property as her separate, property, but on the contrary, showed that she claimed no interest in real estate as her separate property; that the only interest claimed in the property in question was a community interest; that the wife testified in substance that the husband had never told her that he was making a gift to her of any interest in the property; that the wife assumed it was community property; that the husband had entered into a contract to purchase the property in which he alone was named as purchaser; that the husband paid for the property solely out of his separate funds; that he was unfamiliar with Texas community property laws; that he did not instruct anyone to insert the name of his wife in the deed; that he did not see the deed or examine it before it was recorded; that the inventory filed by the husband listed the residence as his separate property; that the husband’s testimony was that he never talked to his wife about giving her the property and she never talked to him about his having given her any interest in the property; that he purchased the property for himself; and, there was nothing else in writing other than the deed to indicate a gift. We have concluded that the totality of the evidence in this case together with the inferences to be drawn therefrom sustain the trial court’s judgment. The evidence was sufficient to overcome the presumption of a gift, thus leaving a fact issue to be determined by the trial court, the trier of the facts in this case. The issue of whether or not there was a gift was highly disputed. We cannot say that the trial court was without sufficient evidence to conclude that the husband did not intend to make a gift to the wife of an undivided one-half interest in the real property. The trial court was in a better position to determine the credibility of the witnesses and the weight to be given their testimony and we see no reason to substitute our judgment for that of the trial court.

While we have concluded that the evidence supports the trial court’s judgment, there is yet another reason why this case should be affirmed. Appellant-wife received and accepted from appellee-hus-band the sum of $5,847.00 which represents a reimbursement to Mrs. Johnson for sums expended on the house out of her one-half of the community funds and some improvements from her separate funds. The court ordered the reimbursement when it declared the house to be the separate property of Mr. Johnson. By accepting payment of the $5,847.00, together with household furniture and other community assets, she has prejudiced the rights of Mr. Johnson, the non-appealing party. The general rule, with some narrow exceptions, is that a litigant cannot treat a judgment as both right and wrong, and if he voluntarily accepts the benefits of a judgment he cannot after-wards prosecute an appeal therefrom. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950); Swearingen v. Swearingen, 487 S.W.2d 784 (Tex.Civ.App. San Antonio 1972, writ dism’d). We further conclude that it can be inferred from the record that appellant-wife voluntarily accepted the benefits accorded her under the judgment and that she is therefore estopped to appeal.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUMPHREYS, Justice.

license: Public Domain

text:
    John G. O’HARA, Appellant, v. Louis J. HEXTER, Appellee.
    No. 19800.
    Court of Civil Appeals of Texas, Dallas.
    May 23, 1979.
    Rehearing Denied July 10, 1979.

      Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Wm. Andress, Jr., Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellant, John G. O’Hara, appeals from a directed verdict. Louis J. Hexter had sued on an alleged $40,000 loan evidenced by a letter agreement and the First National Bank in Dallas became the substituted plaintiff upon Hexter’s death. Many of appellant’s twenty-one points of error are but shades of the other and the principal issue concerns the application in this case of Tex.Civ.Stat.Ann. art. 3716 (Vernon 1928), commonly called “The Dead Man’s Statute,” and the parol evidence'rule. We hold the directed verdict was proper and any error in exclusion of evidence was harmless, and affirm the trial court’s judgment.

The nature of the suit was stated by this court in the first appeal of this case, O’Hara v. Hexter, 550 S.W.2d 379, 381 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.) as follows:

This controversy arose through a joint venture arrangement between Hexter and O’Hara to purchase several buildings. As a part of various oral and written agreements between the parties with respect to this venture, they executed the following letter agreement which is the basis of this suit. That letter reads:
October 8, 1975
Dear John:
In accordance with our agreement, there are attached three checks:
Check # 5559 payable to you and Home State Savings Association in the sum of $18,000.00
Check # 5560 payable to you and Hor-witz Funding Corporation in the sum of $18,000.00
Check # 5561 payable to you in the sum of $3,390.00
We have borrowed $40,000.00 and from it have prepaid the interest of $40,000.00 for sixty days which amount is $610.00. The remainder of that loan, therefore, is $3,390.00 which is the amount of the check payable to you.
It is distinctly understood that you will not endorse the checks nor cash your check until there has been executed the agreements as prepared by Holt Smith. Should there be any complications or hitches in the execution, call me from Cincinnati and we can determine what we can give predicated upon their objections.
It is also understood that the $40,000.00 is a loan to you and is not to be construed directly or indirectly as affecting my capital gains on my sale of my share of the option agreement.
Very truly yours,
s/ Louis J. Hexter
Louis J. Hexter
This letter is certainly the way I understand the deal.
s/ John O’Hara
Because the funds referred to in this letter were expended without obtaining the desired contract for a loan or loan commitment, Hexter sued O’Hara upon the language that “the $40,000.00 is a loan to you.”

In that appeal this court held it was an abuse of discretion by the trial court to deny O’Hara’s motion for a new trial. He had answered but failed to appear for trial and judgment was rendered against him following a hearing before the court. On .remand, trial was to a jury but verdict was instructed for appellee. In considering an instructed verdict, we must determine if there is any evidence to support the submission of an issue and draw all inferences in favor of appellant. Henderson v. Travelers Insurance Co., 544 S.W.2d 649, 650 (Tex.1976).

Appellee’s entire proof consisted of the offer and admission in evidence of a photocopy of the quoted letter and the three paid cheeks described therein. Each separately numbered exhibit was offered by verbal tender without calling any witness or offering supporting testimony, and was admitted over appellant’s objections. Appellee immediately rested. On appeal, appellant asserts the proper predicate was not laid for these documents.

At trial, appellant objected to the letter “on the grounds no proper proof of the letter has been laid to show who signed it or it was sent or it was received and for the further reason that it appears on its face to be a copy and not the original.” His objection to each of the three checks was

For the reason that there’s been no proof whatsoever concerning the execution, delivery, or the negotiation of said checks; for the further reason they appear to be on their face copies without accounting for nonproduction of the originals; and for the further reason that to offer them without proof concerning thereon on the basis of the negotiation is unfair to the Defendant and his rights in this case.

We sustain the trial court’s admission of these photocopies in evidence and hold as a matter of law no other predicate was required in this case for the reason appellant has judicially admitted that he penned the note at the bottom and signed his name thereto before the three checks were cashed. After the ease was remanded for a new trial, appellant filed an amended answer alleging:

Defendant denies that his “acceptance” of Hexter’s letter of October 8, 1975, constitutes or was intended as an acknowl-edgement of any indebtedness of this Defendant to Hexter. Said letter was sent by Plaintiff to Defendant with enclosures attached thereto, which enclosures were the three aforesaid checks and statements outlining the manner in which the anticipated loan funds through Horowitz were to be disbursed. [Emphasis added.]

It has long been the law in Texas, as stated by this court in Bernstein v. Hilton, 45 S.W.2d 643, 645 (Tex.Civ.App.—Dallas 1931, no writ), “It is not necessary for either party to prove that which is distinctly alleged by the adverse party. Each party could without reading it as evidence, avail himself of whatever admissions were made in the pleading of his adversary, without admitting anything alleged therein favorable to the party pleading.” In the case before us it was not necessary for appellee to authenticate, the documents admitted in appellant’s pleading or ask him if he received the letter in question and what he did with the three checks which were therein enclosed. Although appellant contends that the letter does not disclose the entire and true agreement between the parties, he has consistently acknowledged he received the letter together with the checks and wrote and signed the note at the bottom of the October 8, 1975 letter. Accordingly, each of his points of error complaining of improper admission of either of these copies is overruled.

Appellant primarily complains of the exclusion of the testimony by attorney J. Holt Smith, the testimony of appellant, and several exhibits which relate to the subject matter in the letter. We overrule his points because first, we hold the letter agreement is clear and unambiguous as a loan from Hexter to O’Hara. We did not read the letter as containing any condition precedent because, even if the instruments referred to were not prepared, O’Hara would still be liable to repay the amount advanced to him by the cheeks mentioned in the letter. Second, any error in excluding this evidence is harmless because, even if all inferences are drawn in appellant’s favor, it does not raise a jury issue as to whether the parties made a subsequent agreement relieving appellant of that obligation.

The record shows that J. Holt Smith had undertaken to act as attorney for both Hex-ter and appellant in regard to the option agreement mentioned in the October 8 letter, and had filed the original answer for O’Hara in this lawsuit. Appellee’s stated objections to his testimony, which the trial court sustained, are that it violates the attorney-client privilege, the parol evidence rule, and the Dead Man’s Statute. The part of Smith’s testimony which the jury did not hear is in a bill of exception.

Although we are inclined to agree that appellee’s stated objections were not well taken, we conclude that excluding this evidence was not reversible error. Testifying before the jury, Smith told of acting as attorney for O’Hara and Hexter in a real estate transaction dealing with the Texas & Pacific Railway Building in Fort Worth and their efforts after October 8,1975, to obtain a commitment for a loan. On bill of exception, there was much testimony describing O’Hara’s option to buy the building and Hexter’s purchase of fifty percent interest therein from O’Hara, together with the preparation and execution of documents in the ill fated efforts to get this transaction funded.

We find no support in any of this testimony for appellee’s contention that O’Hara was not obligated to repay the money, which by the terms of the letter, was advanced to him as a “loan.” It is true that Smith testified Hexter never told him he made any loan to be repaid by O’Hara nor asked Smith to prepare any documents of such loan. Further, Smith said his understanding was that repayment of the money Hexter advanced in connection with the transaction, plus $100,000, was to be supplied by the loan from Home State Savings Association. Hexter never expressed to him the view that O’Hara was to repay the loan or that O’Hara owed him any money. Smith also testified concerning a telephone conference between himself, O’Hara, Hex-ter and a man named Weiner, a loan broker for Horowitz Funding. When asked about any discussion in that conference call regarding the delivery of the checks identified in the October 8th letter, he testified it was a “heated discussion and I’m a little fuzzy on it.” Continuing, he testified:

A Well, he stated that the checks were delivered because he felt that it was — that Horwitz Funding was an honorable institution and would honor their commitment to lend the money and therefore he didn’t require that the letter I had prepared to be signed. As you recall, the letter that I prepared was to the effect that they would guarantee funds would be made available on this loan.

We hold Smith’s testimony before the jury and on the bill of exception, combined, fails to raise an issue of fact for the jury’s determination because it does not tend to show any agreement that appellant was not liable for the funds advanced to him. And as set forth in Otto v. Otto, 438 S.W.2d 587, 591 (Tex.Civ.App.—San Antonio 1969, no writ): “Error in admitting or excluding evidence will be reversible error only if the record as a whole affords substantial basis for the reasonable belief that the admission or exclusion of such evidence may have caused the rendition of an improper judgment.”

Appellant next complains of the exclusion of testimony of appellant himself. First, he contends the Dead Man’s Statute should not apply to testimony concerning transactions with Hexter because Hexter’s exhibits were offered by appellee without authentication in reliance on O’Hara’s pleading admissions, which was in effect a waiver of the statute by calling O’Hara to testify. We disagree. Reliance on O’Hara’s pleading admissions was not a waiver of the Dead Man’s Statute because appellee in no way called appellant to testify by reliance on appellant’s pleadings. Appellant also claims the Dead Man’s Statute was waived because Hexter testified at the first trial of this case and his testimony was available to appellee at this trial although it was not offered. He argues appellant should therefore be able to controvert this testimony in view of the rule that if a decedent testified at a former trial, the opposing party may testify at a proceeding after decedent’s death to contradict decedent’s prior testimony. Griffin v. Griffin, 306 S.W.2d 196, 200 (Tex.Civ.App.—Waco 1957, writ dism’d). We again disagree. After the judgment of the first trial was reversed and the cause was remanded for the trial involved in this appeal, Hexter’s testimony was not introduced. Appellee received no unjust advantage from Hexter’s testimony at the former trial. We hold that by testifying at that trial, Hexter did not waive the statute with respect to opposing testimony offered after his death.

Appellant further complains of the exclusion of his testimony concerning the delivery of the checks to Horowitz and Home Savings, his intent in adding his own memorandum on the letter and the incompleteness of the instrument. Because we have found the agreement unambiguous, the testimony concerning intent and whether the agreement was complete was properly excluded under the parol evidence rule. The testimony concerning delivery of the checks by O’Hara to Horowitz Funding Corporation and Home States Savings Association, however, is not a transaction with the decedent, and therefore, not barred by Dead Man’s Statute, the only objection made to its admission. Although this evidence was improperly excluded, its exclusion is harmless because it does not raise a jury issue. The delivery of these checks did not affect appellant’s liability to repay the loan.

Appellant’s remaining points concerning the evidence relate to the exclusion of certain exhibits offered at trial and in the bill of exception. Appellee objected to these exhibits under the parol evidence rule and the Dead Man’s Statute. We do not discuss each exhibit individually because none of them would raise a jury issue because they do not show an agreement between the parties which changes appellant’s liability on the loan agreement.

We have addressed appellant’s points concerning error in granting the instructed verdict because we have held the letter unambiguous and have found the evidence does not raise a jury issue concerning a subsequent agreement. Appellant’s point concerning pre-judgment interest is waived because it is not briefed. Lott v. Lott, 370 S.W.2d 463 (Tex.1963). His points complaining of the overruling of two special exceptions to appellee’s pleading are without merit.

Affirmed.


author: HUTCHINSON, Justice.

text:
    Dr. Gerald L. HURST, Appellant, v. Richard W. FORSYTHE, Appellee.
    No. 8641.
    Court of Civil Appeals of Texas, Texarkana.
    May 29, 1979.
    Rehearing Denied June 26, 1979.

      James 0. Guleke II, Daugherty, Kuper-man, Golden, Carlisle & Morehead, Austin, John 0. MacAyeal, Dallas, for appellant.
    Don T. Cates, John D. Gilliland, Gilliland, Cates, Flagg & Rowton, Royal Brin, Jr., Patrick McGowan, Strasburger & Price, Dallas, for appellee.
   HUTCHINSON, Justice.

This is a suit for damages for the alleged breach of a written contract. Appellant Hurst was plaintiff and Appellee Forsythe was defendant in the trial court and will be so designated here.

Plaintiff has a Doctor of Philosophy degree in chemistry and is a recognized specialist in the field of explosive chemistry. Defendant has had considerable experience in marketing explosives. In September of 1969, plaintiff and defendant entered into a written “work contract” agreement wherein the formation of a corporation for the production and marketing of explosives was contemplated. In this endeavor, plaintiff was to be employed as a research scientist for a period of two years at a salary of $26,000.00 the first year and $30,000.00 the second year. Further, plaintiff was to receive by purchase or option to purchase a minimum of 100,000 shares of the corporation’s common stock. In return, plaintiff was to be available at the corporation facilities for a minimum of ten hours per week to design and set up a chemistry laboratory and to direct the day-to-day activities of a certain forty hour per week employee.

On January 12, 1970, the proposed corporation, Kinetics International Corporation (KIC), held its incorporation meeting with the defendant being elected its president. Thereafter, defendant met with the plaintiff relative to their September 1969 agreement. At this time plaintiff was told that the number of shares allocated to him had been reduced to 70,400 because the number of authorized shares was less than originally contemplated. Plaintiff insisted upon receiving 100,000 shares and a compromise agreement was entered into and reduced to writing by the defendant. Under this agreement plaintiff was to receive 8700 additional shares and the defendant promised to “. . . exhibit best efforts to secure for Hurst from the KIC board an additional 33,000 shares of common within approximately one year . . . with such efforts by Forsythe wholely (sic) dependent upon the performance, relationship with Forsythe, and results of Hursts (sic) work during his first year of employment with such efforts by Forsythe to continue as long as feasible.”

February 23,1970, plaintiff signed an employment contract with KIC which provided he would receive 70,400 shares of common stock. This 70,400 shares and an additional 8700 shares were received by plaintiff.

On March 20, 1973, plaintiff, defendant and other stockholders of KIC entered into a stock acquisition agreement with The Tyler Corporation. In the agreement plaintiff made the representation that there were no commitments relating to authorized and unissued shares of stock of KIC and that he had no beneficial interest in or option on any shares other than the 79,100 shares which he owned.

After the acquisition of the stock of KIC by The Tyler Corporation, this suit was instituted for the recovery of the value of 33,000 shares of KIC stock and for damages for the failure of plaintiff to receive a raise in salary for the second year of his employment.

Trial was to a jury and all submitted issues were answered in favor of the plaintiff. By its answers the jury found that the defendant had agreed to exhibit his best efforts to secure the additional 33,000 shares by approximately one (1) year from February 1,1970; that such agreement was dependent upon plaintiff’s work performance and relationship with defendant during the first year; that plaintiff satisfactorily performed under such agreement and in his relationship with defendant; that plaintiff produced satisfactory results during the first year; that defendant failed to use his best efforts to secure the 33,000 shares; that defendant agreed to hire plaintiff at a salary of $26,000.00 the first year and $30,000.00 the second year; that plaintiff satisfactorily performed under the agreement and in his relationship with defendant and produced satisfactory results during the first year; that defendant failed to use his best efforts to secure a salary increase for plaintiff; that the sum of $198,248.90 would compensate the plaintiff for defendant’s failure to use his best efforts to obtain for plaintiff an additional 33,000 shares; and that the sum of $4,000.00 would compensate plaintiff for defendant’s failure to obtain an increase in salary for the second year.

Thereafter, the court disregarding the jury answer to Special Issue No. 17 (the sum of $198,248.90) entered judgment for the plaintiff for the sum of $4,000.00. From this judgment plaintiff has perfected his appeal.

Plaintiff by his trial petition and proffered testimony (Bill of Exception) sought to recover damages based upon the projected value of the 33,000 shares of KIC stock as of the time of trial (May 1977). The trial court refused to permit the plaintiff to testify, before the jury, as to the projected current value of the 33,000 shares but did permit him to testify as to value of such shares as of the time of the sale to The Tyler Corporation (March 1973). In response to this inquiry the plaintiff stated that the 33,000 shares of stock were then worth $198,248.90, the sum found by the jury in its answer to Special Issue No. 17. Plaintiff offered no evidence of the value of the stock at any other time and there is no other evidence thereof. The record does reflect that KIC suffered considerable financial losses during the fiscal years of 1970, 1971, and 1972 and that during this period its stock was of little value.

Plaintiff here contends that he should have been permitted to testify before the jury as to the value at the time of the trial of the additional 33,000 shares of stock and alternatively, that the court erred in disregarding the jury finding that the sum of $198,248.90 would compensate him for the defendant’s failure to use his best efforts to obtain the additional shares. Resolution of these points turns upon the determination of the proper time to be used in arriving at plaintiff’s damage. Appellant contends that the correct measure of his damage was the highest market value of the 33,000 shares between the date of the breach by defendant and the date of the trial. In support of this contention, the plaintiff relies upon the cases of Randon v. Barton, 4 Tex. 289 (1849), and Calvit v. McFadden, 13 Tex. 324 (1855). These cases stand for the proposition that where the entire purchase price has been paid in advance, the measure of damage is the highest price obtainable for the item purchased from the date of breach to the date of trial if the suit is brought and tried in a reasonable time. This rule was thereafter limited to the fact situations presented by those cases. See Heilbroner v. Douglass, 45 Tex. 402 (1876), where the court quoted from Randon v. Barton, supra, the following:

“But we doubt the propriety of giving the vendee in all cases, as a measure of damages, the highest price of the article between the day when it should have been delivered and the day of trial. If he immediately, or without any unreasonable delay, commence and prosecute his action, we think it just and proper that the fluctuations in price should be exclusively at the hazard of the defendant, the plaintiff having done everything in his power to have the contract settled and adjusted, and which is prevented solely by the laches or default of the defendant.”,

and then stated:

“. . . when extraordinary circumstances have occurred to produce extreme prices in the article during a long period of time, and the suit has been protracted without any fault of the defendant,
or when there are other circumstances attending the transaction, not in the ordinary course of trade, calculated to render such a measure of damages inequitable and unjust, the rule of the highest price in the intervening time would not be applicable, but the ordinary rule might be more appropriate, which is to allow the value of the article at the time agreed on for delivery, and interest on that amount.”

The Calvit rule has also been examined and limited in Thrift Oil & Gas Co. No. 2 v. Newton, 227 S.W. 495 (Tex.Civ.App. Amarillo 1921, no writ).

Here the plaintiff waited approximately two years after the date of the claimed breach before the institution of his suit. At this time it was impossible for the defendant to obtain the stock and thereby fulfill his contract. The additional shares were to have been obtained by February of 1971 and the KIC shares of stock were sold to The Tyler Corporation in March of 1973. This suit was instituted thereafter with the jury verdict being returned on May 5, 1977. Under the facts here presented, the Calvit rule is not applicable and the trial court did not err in refusing to admit the proffered evidence.

The only evidence in the record upon which the jury could have based its answer to Special Issue No. 17 was the plaintiff’s testimony as to what The Tyle Corporation contracted to pay for the KIC stock in March of 1973, a time two years subsequent to the alleged breach by the defendant. Plaintiff offered no evidence as to the value of the shares of stock as of February of 1971. Here, as in the trial court, the plaintiff bases his claim for damages for breach of a contract rather than upon the tort theory of conversion, and does not seek to sustain the jury’s answer to Special Issue No. 17 on a conversion theory. No effort has been made in the trial court or here to show a conversion of the shares of stock accompanied by fraud, willful wrong, or gross negligence so as to invoke the holdings of Patterson v. Wizowaty, 505 S.W.2d 425 (Tex.Civ.App. Houston-14th Dist. 1974, no writ); Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App. Dallas 1968, writ ref’d n.r.e.); Reed v. White, Weld & Company, Inc., 571 S.W.2d 395 (Tex.Civ.App. Texarkana 1978, no writ).

We therefore hold that the trial court did not err in disregarding the jury’s answer to Special Issue No. 17. Lindop v. Allstate Ins. Co., 542 S.W.2d 250 (Tex.Civ.App. Texarkana 1976, writ ref’d n. r. e.); Tex.R. Civ.P. 301; 4 McDonald’s, Texas Civil Practice, § 17.32 (1971).

Appellee’s cross points of error have been considered and are overruled.

Judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Juan G. BAEZA, Appellee.
    No. 9025.
    Court of Civil Appeals of Texas, Amarillo.
    May 31, 1979.

      Logan Ford, Dallas, for appellant.
    Burnett & Ahders Associated, Warren Burnett, Odessa, for appellee.
   REYNOLDS, Justice.

Sustaining a plea in abatement grounded on the pendency of a prior suit, the trial court dismissed this suit. Under the record, the actions were erroneous. Reversed and rendered.

Juan G. Baeza sustained an injury in Midland County on 1 November 1968 in the course of his employment. By a 30 March 1978 order in its Cause No. H-007696, the Industrial Accident Board ordered the compensation carrier, Texas Employers Insurance Association, to pay Baeza $35 per week for 401 weeks for total and permanent incapacity, specially finding that payments of compensation have matured in the sum of $14,035.

Texas Employers Insurance Association timely gave notice of its unwillingness to abide by the Board’s award and, on 6 April 1978, filed this suit in a district court of Dallas County to set aside the award. T.E. I.A. alleged in its petition that the suit was filed in the county where the alleged injuries were sustained.

Before answering with a general denial, Baeza interposed on 17 April 1978 an un-sworn plea in abatement containing the following allegations and prayer:

I.
There is on file in the District Court of Ector County, Texas, a lawsuit styled Juan G. Baeza vs. Texas Employers Insurance Association, Cause No. A-51,954, 70th Judicial District. Said cause of action being filed on April 5, 1978.
II.
Defendant herein, Juan G. Baeza, has a right to try his suit in the county of his residence, Ector County. His lawsuit was filed on April 5, 1978. One day prior to the lawsuit herein.
Wherefore, premises considered, this Court should abate the trial of this cause pending the trial of the lawsuit in Ector County, Texas.

Accompanying Baeza’s plea were unverified copies of a petition and a signed receipt. The petition is numbered A-51,954 in the District Court of Ector County, 70th Judicial District, and styled Juan G. Baeza vs. Texas Employers Insurance Association. Allegations in the petition are that while employed in Ector County on 1 November 1968, Baeza was injured and that he has complied with all jurisdictional requisites to perfect this appeal from the Board’s final decision in its Cause No. H-007696. Based on his allegations, Baeza seeks compensation of $35 per week for 401 weeks payable in a lump sum ($14,035). The petition carries no date, but the receipt is dated 5 April 1978 and is for a deposit of $56 made by Baeza’s attorney with the district clerk of Ector County in Cause No. A-51,954, styled Baeza vs. T.É.I.A.

T.E.I.A. moved to strike the plea because (1) it was not verified; and (2) Baeza had received all he was entitled to from the Board’s award and, consequently, he had filed his suit to obtain priority without a bona fide intention to prosecute it. Baeza then filed his amended, verified plea in abatement, without attachments, alleging the same matters contained in his original plea.

When the matters came on for a 30 June 1978 hearing, T.E.I.A. offered the instruments designated above, except for the amended, verified plea in abatement, and they were “admitted into evidence for the purposes of this hearing on the [T.E.I.A.’s] motion to strike.” T.E.I.A. then introduced the record from prior litigation in Dallas County between the parties over an earlier award of the Board regarding the same injury. No other evidence was introduced.

The trial court rendered judgment sustaining the plea in abatement and dismissing T.E.I.A.’s suit. This appeal resulted.

T.E.I.A. initially charges the trial court with error in not striking Baeza’s plea in abatement. T.E.I.A. theorizes that Baeza could not be aggrieved by the Board’s decision which awarded him a lump sum payment of the maximum compensation to which he was entitled under the law and, hence, Baeza’s Ector County suit was fraudulently filed without a bona fide intention to prosecute it in an attempt to deny T.E. I.A. access to the Dallas County court.

Implicit in T.E.I.A.’s accusation that Baeza raced to the Ector County courthouse to deny T.E.I.A. access to the Dallas County court is the recognition that each district court had potential jurisdiction of the suit to set aside the Board’s award. If Baeza’s suit was first filed and is pending in a district court of Ector County, a court of competent jurisdiction over the subject matter with the power to bring all necessary parties before it, that court acquired the prior right to exercise active jurisdiction of the cause, and no other state court in which such a suit is subsequently filed has the right to interfere, unless, as T.E.I.A. alleges, Baeza is guilty of conduct which estops him from asserting the active jurisdiction of the Ector County court. V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937).

The core of the conduct complained of is that Baeza filed his suit without a bona fide intention to prosecute it. A requisite for the commencement of a suit is the plaintiff’s bona fide intention to prosecute it, but this is a question of fact which must be determined by the trial court and not by the appellate court. Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737-38 (1932). No evidence was presented to the trial court on the fact issue of Baeza’s intent in filing his suit. Absent evidence of the conduct which was the basis of T.E.I. A.’s motion to strike, the court did not err in failing to strike Baeza’s plea in abatement.

Next, T.E.I.A. contends that it was error to sustain the plea in abatement because Baeza waived it by failing to prove any of the elements of the pendency of a prior suit. In this connection, a plea in abatement grounded on the pendency of a prior suit is predicated upon a state of facts which must be seasonably alleged and proved; and, unless this is done, the subsequent suit is not abated. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926). Those essential facts are the present pendency of a prior suit between the parties in which the same subject matter is, or issues are, involved and determinable. Cleveland v. Ward, supra, 285 S.W. at 1070. The burden remains on the defendant to prove the allegations in his plea in abatement, Flowers v. Steelcraft Corporation, 406 S.W.2d 199 (Tex.1966), even though his plea is verified. Railroad Commission v. Shell Oil Co., 164 S.W.2d 773, 774 (Tex.Civ.App.—Austin 1942, writ ref’d).

As reflected by the record, Baeza offered no proof of the allegations in his plea at the 30 June 1978 hearing. Baeza’s original plea in abatement with the accompanying petition and receipt were admitted in evidence, not in support of the plea in abatement but for the purposes of T.E.I. A.’s motion to strike. If it reasonably can be argued that the record from the Ector County court was before the trial court for all purposes, the most that it shows is the pendency of a prior suit on 17 April 1978, some two and one-half months before the hearing on the plea. The instruments do not prove, and there is no other evidence to show, that the prior suit was pending when the plea in abatement was heard. There being no proof independent of the plea itself of the pendency of the prior suit at the hearing on the merits of the plea in abatement, the defendant failed to discharge his burden of proof and, thereby, is not entitled to have his plea sustained. Street v. J. I. Case Threshing Mach. Co., 188 S.W. 725, 728 (Tex.Civ.App.—Amarillo 1916, writ ref’d). Accord, Rosenfield v. Childs, 304 S.W.2d 391, 393 (Tex.Civ.App.—Texarkana 1957, no writ); Montague County v. White, 241 S.W. 740, 741 (Tex.Civ.App.—Fort Worth 1922, writ dism’d).

Further, T.E.I.A. correctly submits that, even were the plea in abatement sustainable, the court erred in dismissing this suit. Admittedly, there are cases holding that the proper order on sustaining a plea in abatement on the ground of a prior pending suit is one of dismissal; but, usually, the holding is coupled with the caveat that the dismissal is to be effective only so long as the cause of abatement continues to exist, and without prejudice to bringing a new suit upon the same set of facts if the cause of action still exists. See, e. g., Zarsky v. Moss, 193 S.W.2d 245, 246 (Tex.Civ.App.—San Antonio 1946, no writ). However, facts pleaded in abatement are, as opposed to facts pleaded to bar the action at any time, merely designed to defeat present proceedings. Accordingly, when a plea in abatement is sustained because of the pendency of a prior suit between the same parties involving the same subject matter, the cause should be retained on the docket so that, when the cause of abatement is removed, the suit may be revived if anything remains to be litigated. Haney v. Temple Trust Co., 55 S.W.2d 891, 893-94 (Tex.Civ.App.—Austin 1932, writ dism’d); Forman v. Prince, 97 S.W.2d 1002, 1005 (Tex.Civ.App.—Dallas 1936, no writ). Accord, Beyersdorff v. Spillar, 224 S.W.2d 272, 273 (Tex.Civ.App.—San Antonio 1949, no writ). This principle is particularly applicable where, as here, the dismissal would foreclose the refiling of this suit because of the mandatory time in which the suit must be filed. Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1978-79).

Moreover, Baeza only prayed that T.E.I.A.’s suit be abated, not that it be dismissed. Though mere matter of form is seldom controlling, yet where one asks for a specific relief which is consistent with his pleadings and there is no general prayer for relief, the special prayer must be regarded as evidencing the object of the plea and ordinarily will not entitle one to a judgment different from that for which he has prayed. See Hogan v. Kellum, 13 Tex. 396, 399-400 (1855).

The judgment of the trial court is reversed, and judgment is here rendered overruling the plea in abatement and ordering this suit reinstated upon the docket of the district court of Dallas County. Tex.R. Civ.P. 434.

      . By its original provisions, Tex.Rev.Civ.Stat. Ann. art. 8307, § 5, required the suit to set aside an award to be filed in a “court of competent jurisdiction in the county where the injury occurred”; so, if the suit was filed in any other county, the court had no jurisdiction except to dismiss. Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195, 196-97 (1926).
      In 1931, the legislature enacted Tex.Rev.Civ. Stat.Ann. art 8307a to provide that if the suit was not brought in the county where the injury occurred, “the Court in which the same is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, transfer the case to the proper Court in the county where the injury occurred.” This enactment operates to recognize and confer potential jurisdiction of the subject matter in courts, otherwise competent to exercise jurisdiction over the subject matter, outside the county where the injury occurred. Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943).
      At the time the Board made its 1978 decision, Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp. 1978-79), had been amended, effective 29 August 1977, to provide in part:
      Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred, or in the county where the employee resided at the time the injury occurred (or, if such employee is deceased, then in the county where the employee resided at the time of his death), to set aside the final ruling and decision
      However, Tex.Rev.Civ.Stat.Ann. art. 8307a has not been amended.

      . See Payne v. Benham, 16 Tex. 364, 367 (1856), for the statement that the truth of the plea for abatement of the present suit because of the pendency of a prior suit between the same parties involving the same subject matter is tried by the record in the prior suit.


author: OSBORN, Justice.

text:
    Keenan D. WALLACE, on behalf of himself and for the benefit of Jennie D. Wallace Fields and Diana Sue Wallace Henderson, Appellant, v. HOMAN & CRIMEN, INC., et al., Appellees.
    No. 6819.
    Court of Civil Appeals of Texas, El Paso.
    June 13, 1979.
    Rehearing Denied July 11, 1979.
    Watrous & Associates, Ira Watrous, Houston, Howell & Fields, Larry G. Fields, El Paso, for appellant.

      Kemp, Smith, White, Duncan & Hammond, William B. Duncan, Luis Chavez, Scott, Hulse, Marshall & Feuille, Schuyler B. Marshall, Robert A. Junell, El Paso, for appellees.
   OPINION

OSBORN, Justice.

This case involves the application of a statute of limitation which reduced the period of time within which a minor could sue a hospital or doctor covered by liability insurance for a tort. The trial Court concluded that that limitation barred the suit and granted a summary judgment for the Appellees. We affirm.

The Appellant’s father sustained fatal injuries after jumping from a window of Southwestern General Hospital in El Paso on December 18, 1961. At the time of his father’s death, Kennan D. Wallace was three years old. He filed this suit on June 24, 1977, when he was nineteen and his sisters for whom he sued were thirty-three and twenty-six years old. Suit was brought under the provisions of Article 4671, et seq., Tex.Rev.Civ.Stat.Ann., the Texas Wrongful Death Statute, against both the treating physician and the hospital.

Both Appellees pled limitation as a defense, and each offered summary judgment proof to establish that at the time of the incident in question they were duly licensed and were covered by a policy of professional liability insurance. These facts are not contested. Prior to 1975, this cause of action would have been controlled by Article 5526, Tex.Rev.Civ.Stat., which provides a two-year statute of limitation, and Article 5535, Tex.Rev.Civ.Stat.Ann., which would have tolled the running of the statute of limitation until a person reaches the age of majority, now being eighteen years.

But, the 64th Regular Session of the Legislature passed Senate Bill No. 466, which was codified as Article 5.82 of the Insurance Code. It became effective on June 3, 1975, and provided in part as follows:

Sec. 4. Notwithstanding any other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine * * * or a hospital licensed under the Texas Hospital Licensing law, * * * whether for breach of express or implied contract or tort, for compensation for medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.

But for this statute, Keenan Wallace would have had until June 26, 1977, his twentieth birthday, to file suit. Considering the 1975 statute, the pertinent dates are noted as follows:

Date of accident 12-18-61
Effective date of Art. 5.82 06-03-75
Appellant’s 18th birthday 06-26-75
Two years from effective date of Art. 5.82 06-03-77
Petition filed 06-24-77
Two years from 18th birthday 06-26-77

By his first point of error, Appellant asserts that the 1975 statute violates Article I, sec. 16, of the Texas Constitution, and is void because it is retroactive and affords no reasonable time to bring suit on actions which were not yet barred by limitation. In Wright v. Hardie, 88 Tex. 653, 32 S.W. 884 (1895), the court recognized the right of the Legislature to provide a shorter period of limitation for an existing cause of action and to make a statute of limitation for causes when none existed before, so long as it allows a reasonable time after the law goes into effect to bring suit upon actions which are not then barred. Also see 37 Tex.Jur.2d Limitation of Actions sec. 9 (Supp.1978).

The rule was again enunciated in Williams v. Reed, 160 S.W.2d 316 (Tex.Civ.App.—San Antonio 1942, writ ref’d w. o. m.), where the court said:

It is settled law that a statute of limitation, such as this, which applies by its terms to the enforcement of rights already accrued, does not offend against the constitutional prohibition against passage of retroactive laws, or laws impairing the obligation of contracts, because it does not operate upon vested rights, but only upon the remedy for enforcing those rights. It follows, then, that the Legislature may establish, or shorten, the period in which suits may be brought upon existing causes of action, provided a reasonable time is allowed after the enactment in which such suits may be commenced. 16 C.J.S. Constitutional Law, p. 846, § 394; 28 Tex.Jur. 81, subsection 7; De Cordova v. City of Galveston, 4 Tex. 470; Boon v. Chamberlain, 82 Tex. 480, 18 S.W. 655; Bunn v. City of Laredo, Tex.Civ.App., 208 S.W. 675; Id., Tex.Com.App., 245 S.W. 426; Farmers’ Life Ins. Co. v. Wolters, Tex.Com.App., 10 S.W.2d 698; Id., Tex.Com.App., 14 S.W.2d 58.

Of course, if a limitation statute is so applied as not to allow a reasonable time after the law goes into effect to bring suit upon actions which are not yet barred, it would be unconstitutional. Highland Park Independent School District v. Loring, 323 S.W.2d 469 (Tex.Civ.App.—Dallas 1959, no writ). Had the Court in this case denied a suit filed within two years from the effective date of the new limitation period, we would conclude that a reasonable time was not allowed to enforce an accrued right. But in this case, suit was filed after the period allowed by the statute itself and we conclude the remedy was barred. Point of Error No. One is overruled.

The next point asserts the 1975 Act is in violation of Article III, sec. 35, of the Texas Constitution because it has more than one subject. The test to be applied to this issue was set forth in Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975), where the court said:

In determining whether a bill includes more than one subject, both the constitutional provision and the statute under consideration are to be liberally construed in favor of constitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Central Education Agency v. Independent School District of City of El Paso, 152 Tex. 56, 254 S.W.2d 357 (1953). The statute will be upheld where its provisions relate, directly or indirectly, to the same general subject, and have a mutual connection. See Robinson v. Hill, supra, and cases cited therein. Or, stated differently, the provision is valid where it is germane to the subject of the bill. Moore v. Sheppard, [144 Tex. 537, 192 S.W.2d 599], supra; Linden v. Finley, [92 Tex. 451, 49 S.W. 578], supra; Missouri-K. T. R. Co. v. Rockwall County Levee Improvement District No. 3, 117 Tex. 34, 297 S.W. 206 (1927).

The cases require that a statute be upheld where its provisions relate, directly or indirectly, to the same general subject, have a mutual connection, and are not foreign to the subject expressed in the title. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974). The title to this Act provided that it was an Act relating to the regulation of professional liability insurance for persons licensed to practice medicine and for any licensed hospital and that it provided a limitation period within which claims must be filed. We conclude the title meets the requirement of provisions related to the same single subject matter and the Act is not unconstitutional for this reason. Point of Error No. Two is overruled.

The last point of error asserts the trial Court erred in granting summary judgment for the Appellees because Appellant is entitled to have the two-year statute of limitation as set forth in Article 5526, Tex.Rev. Civ.Stat.Ann., tolled by the operation of Article 5535, Tex.Rev.Civ.Stat.Ann. The Appellant cites no authority in support of this point of error, and it is the same contention made under Point of Error No. One. We reach the same result as under that point. Point of Error No. Three is overruled.

The Appellees present one counterpoint in which they assert that the claims of Jennie Wallace Fields and Diana Wallace Henderson are barred by limitations because even without regard to the 1975 statute they were barred from making any claim under the provisions of the two-year statute of limitation. The Appellant does not contest this counterpoint and it is sustained.

The judgment of the trial Court is affirmed.

      . This Section was repealed effective August 29, 1977.


author: NYE, Chief Justice.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. Ralph E. KRAUSE, Appellee.
    No. 1386.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.

      . Gerald L. Benadum, Jay B. Doegey, Corpus Christi, for appellant.
    Jack E. A. White, North & White, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a pipeline easement case. Ralph E. Krause, a landowner, filed suit against the City of Corpus Christi (City) seeking to have the proposed plat of his property approved without the necessity of granting to the City a thirty-foot right-of-way easement, a condition precedent imposed by the City for approval of the plat. The City sought affirmative relief (by way of counterclaim) on the basis that it had acquired an easement by prescription across the property. After a nonjury trial, the court entered a judgment which ordered the City to remove its high pressure gas pipeline from Krause’s property and to approve his plat. The trial judge filed findings of fact that supported the court’s judgment.

Krause’s land is located in the Flour Bluff area of Corpus Christi, Nueces County, Texas, and is situated on the south side of South Padre Island Drive near the end of the Oso Bridge. A body of water commonly called Cayo del Oso borders the property on its west side. The Krause property was originally a portion of the Ruth L. Chapman Estate which was conveyed through several intermediate owners to Krause in 1969. The City acquired its interest in the pipeline in 1952 through its two predecessors, Corpus Christi Municipal Gas Corporation and Houston Natural Gas Corporation, the latter being the original builder of the pipeline in 1952. The property in question was never improved.

In 1952, the Houston Natural Gas Corporation was in the process of extending a 12-inch high pressure gas pipeline along South Padre Island Drive into Flour Bluff. Travis Bertlet, the Houston Natural Gas Corporation “right-of-way agent” at that time, contacted the various property owners affected by the pipeline extension in order to purchase right-of-way easements. After obtaining easements from owners of the property adjoining the property in question, Bertlet contacted representatives of the Chapman Estate. They refused to approve the placement of the pipeline across their property. In an attempt to comply with their refusal, the pipeline extension was finally located on the other side of the southern boundary of the Chapman proper- ■ ty in question and then extended in a southerly direction through the mud flats near the edge of the Cayo del Oso which, at the time, Bertlet believed to be State property. The pipeline, however, was actually placed in a more northerly direction almost squarely through the middle of the property now owned by Krause.

In 1956, the beneficiaries under the will of Mrs. Chapman conveyed a portion of their property, including the portion now owned by Krause. At about this same time, the State Highway Department was acquiring additional rights-of-way from property owners along Padre Island Drive for the purpose of constructing a divided highway. In 1956, an additional 90-foot wide highway right-of-way area was conveyed to the State by Krause’s predecessors in title. The resulting boundary line between the highway right-of-way and the property which is now owned by Krause remained fixed from 1956 until 1970, the year after Krause acquired the property.

Concurrent with the widening of the highway in 1959, Houston Natural Gas Corporation, one of the City’s predecessors in interest, extended the 16-inch casing surrounding the pipeline as it passed beneath the highway an additional 97 feet to cover the width added to the right-of-way. Thereafter, certain pipeline markers were erected in the highway right-of-way proper. In 1970, Krause conveyed a triangular strip of land to the State as additional right-of-way in response to the State Highway Department’s plans to build a controlled access road.

Krause started to implement his plan to develop his property into a site for a restaurant in 1972 or 1973. He solicited fill dirt in order to build up the low-lying property bordering on the Cayo del Oso to comply with City elevation standards. He hired numerous bulldozer operators to level the fill he received. The area Krause filled passed over the pipeline. In furtherance of his development plans, Krause sought to have his property platted in 1976. It was then that it was discovered that the pipeline crossed Krause’s property and that the City did not have a right-of-way easement by grant. The City Planning Commission refused to approved the plat unless Krause agreed to dedicate a 30-foot easement for the gas pipeline that was already in place. Krause then unsuccessfully sought relief before the City Council. This action to compel the City to approve his plat without imposing the above described conditions followed.

After hearing the evidence of the case, the trial judge entered judgment ordering the City to remove the high pressure gas pipeline from Krause’s property and, as a consequence, ordering the City to approve Krause’s plat with no dedicated easement. The trial judge found, in relevant parts, the following findings of fact: 1) the high pressure gas line was built in 1952 on land then owned by Krause’s predecessors in title; 2) neither Krause nor his predecessors in title had actual knowledge of the pipeline across the property until Krause attempted to file a plat of the property; 3) the City’s use of the pipeline that crossed Krause’s property was not open and notorious; 4) the use of the pipeline by the City and its predecessors in interest was hostile and adverse to the owners of the property in question, the alleged servient estate, and was uninterrupted, exclusive and continuous during the period from 1952 until 1976; 5) the marker and vent stand pipe would have put an engineer, construction man or other person ordinarily conversant with the subject of markers, pipelines or underground lines on notice or inquiry of the existence of the pipeline; 6) an individual ordinarily conversant with the subject of markers, pipelines, or underground lines, would have known from the marker and the vent stand pipe that such objects were located at the edge of the highway right-of-way; 7) an individual ordinarily conversant with the subject of markers, pipelines or underground lines, would have known from the vent stand pipe of the existence of a safety casing on a gas pipeline; 8) an individual ordinarily conversant- with the subject of markers would have known from the vent stand pipe the pipeline crossed under the State highway and extended up to the highway right-of-way line; 9) neither Krause nor his predecessors in title have lived or built upon the property in question; 10) in 1952, one of the City’s predecessors in interest dispatched a sizeable pipeline construction crew which used heavy equipment to trench, fit and weld the pipelines, working openly for about three weeks to install the pipeline across the property of the alleged servient estate; 11) in 1959, one of the City’s predecessors in interest dispatched a construction crew of 12-15 people, together with heavy equipment, to trench and extend the pipeline casing along the existing pipeline an additional 97 feet across property which had been a part of the alleged servient estate and worked openly at the site for about a week to ten days; 12) gas crews of the pipeline owner periodically checked and replaced to two fifty-pound anodes located at the site of the gas marker and vent stand pipe; 13) gas crews of the pipeline owner periodically crossed the alleged servient estate, carrying explosimeters and probe bars, checking for gas leaks in the pipeline; 14) Flour Bluff, the area in which the property in question is situated, is well-known as a place generally underlain with numerous gas pipelines; 15) Krause’s title insurance policy specifically excepted from its coverage “any pipelines over, across or on” the property; 16) the gas marker in question had the words “Gas Line” chiseled into it.

As a general rule, an easement by prescription is acquired by a use that is open and notorious, or with knowledge and acquiescence on the part of the owners of the servient tenant, together with a use that is adverse, exclusive, uninterrupted and continuous for the requisite period of time. Rust v. Engledow, 368 S.W.2d 635 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.); 21 Tex.Jur.2d, Easements by Prescription, § 25 (1961). In this case, the trial court found that neither the plaintiff nor the plaintiff’s predecessors in title had actual knowledge of the pipeline and that the defendant’s use of the pipeline across plaintiff’s property was not open and notorious.

The City’s first four points of error are “legal sufficiency” and “factual sufficiency” points which complain of the trial court’s findings numbered two and three above. In these points of error and in an overlapping point of error (seven), the City argues that the trial court used an improper legal standard to determine the actual or implied knowledge issue.

In deciding the “legal sufficiency” points, we review the evidence only in the light most favorable to support the trial court’s finding, and in deciding the “factual sufficiency” points, we must consider all of the evidence. See Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Our review of the evidence herein is directed toward the legal as well as the factual sufficiency points of error.

There is ample evidence in the record to support the trial court’s findings that the use of the pipeline was not open and notorious and that none of the owners of the land in question, including Krause, had actual knowledge of the existence of the pipeline until it was discovered in 1976. Neither Krause nor any of his predecessors lived on the land nor added substantial improvements. Although appellant contends that the representatives of the Chapman Estate should have known of the existence of the pipeline because, after they refused to grant permission to place the pipeline on Chapman land, Bertlet acquiesced in their refusal and then described where the pipeline would be placed. Bertlet’s own testimony, however, indicates that he only generally described the location of the future pipeline by stating: “We (the pipeline) would go down the south side of their front and tie on Burton Dunn until we get into the Oso on State land.”

The pipeline was installed approximately four feet below the surface of the land after only three weeks of actual work on the property in 1952. Thereafter, the pipeline itself remained undisturbed until 1959 when the pipeline’s casing was extended in conjunction with other work necessary for the widening- of the highway. The casing extension was accomplished in a week to ten days. The actual work, however, commenced after that strip had been conveyed for right-of-way purposes to the State by Krause’s predecessor. After that time, no other repairs or maintenance to the pipeline were made. Although some evidence shows a few workmen occasionally walked the path of the pipeline to check for gas leaks, these checks were infrequent and sporadic.

The City relies heavily upon the existence of the pipeline monument and vent stand pipe which were placed directly over the location of the pipeline in the highway right-of-way as evidence of actual or constructive knowledge of the pipeline. These markers, however were no located on Krause’s property, but rather, were located solely upon the highway right-of-way some 12 to 14 feet from Krause’s original boundary line. The pipeline monument contained no directional lines indicating the direction in which the pipeline travelled. The markers were not always visible from the highway because of weeds and grass. The City’s own witnesses testified that, although the markers were visible from the highway if “you know it’s there, and you’re looking for it,” the markers did not indicate whether the pipeline went parallel or perpendicular to the right-of-way. Only if the pipeline were located perpendicular to the highway right-of-way, would it have crossed Krause’s property. Otherwise, (if it were parallel) it would be located solely within the State’s highway right-of-way. This inconclusive evidence did not establish Krause’s actual or constructive knowledge of the pipeline over his property.

In the case of Wiesel v. Smira, 49 R.I. 246, 142 A. 148 (1928), 58 A.L.R. 818 (1929), a case cited by the City, the easement was held to be one by implication, and not by prescription. The sewer line was laid by the original owner of the lot before conveyance to the litigants. The Court in that case quotes from 2 Tiffany, Real Property, 2d Ed., p. 1278, to the effect that an easement is apparent if its existence is indicated by signs which might be seen or known on a careful inspection by a person ordinarily conversant with the subject. The City also relies upon other implied easement appurtenant cases to support its contention that the above test should be used to determine whether the use by the City of the pipeline was open and notorious. See Lake Meredith Development v. City of Fritch, 564 S.W.2d 427 (Tex.Civ.App.—Amarillo 1978, no writ); Westbrook v. Wright, 477 S.W.2d 663 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); Houston Pipeline Co. v. Brown, 361 S.W.2d 884 (Tex.Civ.App.—Houston [1st Dist.] 1962, writ ref’d n. r. e.); Jones v. Harmon, 175 Cal.App.2d 869, 1 Cal.Rptr. 192 (1959).

Here, there is ample evidence that a person ordinarily conversant with underground high-pressure gas pipelines, upon an inspection of the markers in question, could reasonably conclude that, although the pipeline existed, it did not cross Krause’s land but rather, ran parallel to the highway right-of-way. In the case of Jones v. Harmon, 175 Cal.App.2d 869, 1 Cal.Rptr. 192 (1959), relied upon by the City, the court relied upon certain visible installations characteristic of an irrigation system because they were located in such an alignment in relation to the land in question as to indicate the probable course of the conduit thereunder. Such is not the case before us.

We conclude that the evidence supports the trial court’s findings. In addition, we have examined all of the other evidence in the record and conclude that the trial court’s findings are not contrary to the great weight and preponderance of the evidence. See Houston Pipeline Company v. Brown, 361 S.W.2d 884 (Tex.Civ.App.—Houston [1st Dist.] 1962, writ ref’d n. r. e.); Maricle v. Hines, 247 S.W.2d 611 (Tex.Civ.App.—Fort Worth 1952, no writ). Our disposition of these points of error is consistent with the weight of authority from other jurisdictions. See Annotation, Easements by Prescription in Artificial Drains, Pipes or Sewers, 55 A.L.R.2d 1144, 1166-70 (1957). Appellant’s points of error one through four and number seven are hereby overruled.

In point of error number five, the City complains that the trial judge improperly considered facts not in evidence in making his findings of fact and conclusions of law adverse to the City. The only authority cited in support of this point of error is totally unrelated to this contention. This point of error fails to meet the minimum briefing rules prescribed by Rule 418, Texas Rules of Civil Procedure, and is waived. See Continental Oil Company v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.), and our local rules attached thereto as an appendix.

Even if we were to consider this point of error on the merits, it would be overruled. As a general rule, the trial judge is presumed to consider only the evidence properly before him in evidence. See Creager v. Douglas, 77 Tex. 484, 14 S.W. 150 (1890); Yzaguirre v. State, 427 S.W.2d 687 (Tex.Civ.App.—Corpus Christi 1968, no writ). In addition, reversible error is not present where, as here, there is ample evidence to support the trial court’s findings and the error, if any, would not affect or change the judgment. Rule 434, Texas Rules of Civil Procedure. See Aultman v. Dallas Railway & T. Co., 152 Tex. 509, 260 S.W.2d 596 (1953); Colonial Life & Accident Ins. Co. v. Squynes, 550 S.W.2d 413 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Rodriguez v. Priest, 126 S.W. 1187 (Tex.Civ.App.1910, writ ref’d). Appellant’s point of error number five is hereby overruled.

In point of error number six, the City complains that the trial court judge abused his discretion in refusing to hear oral argument following the submission of trial briefs. The trial judge is vested with considerable discretion in determining whether or not to hear oral arguments concerning a case tried before him alone. The exercise of such discretion should not be questioned, unless the party complaining of such can show that he has been deprived of some substantial right or benefit. The refusal of the trial judge to hear oral arguments will not be grounds for reversal, unless it is made to appear that the judgment of the court was improperly rendered. Rodriguez v. Priest, 126 S.W. 1187, 1189 (Tex.Civ.App.1910, writ ref’d). No abuse of discretion has been shown here. Appellant’s point of error number six is overruled.

In its remaining points of error (eight and nine), the City attempts to attack, on legal and factual sufficiency grounds, the trial court’s finding that the pipeline built in 1952 was upon land then owned by Krause’s predecessor in title. Although the City generally discusses some of the evidence relating to this finding, the City presents us with absolutely no authority to support its contention that the evidence which supports the finding is without probative force. These points have been considered and are overruled. Appellant’s points of error eight and nine are overruled.

The judgment of the trial court is AFFIRMED.


author: MURRAY, Justice.

text:
    Margaret Elizabeth HAMBORSKY, Appellant, v. Rudolph J. HAMBORSKY, Appellee.
    No. 16065.
    Court of Civil Appeals of Texas, San Antonio.
    June 13, 1979.
    Rehearing Denied July 25, 1979.

      William Dickson, Houston, for appellant.
    Peter Torres, Jr., San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

On June 24, 1977, Margaret Elizabeth Hamborsky, appellant, filed a motion for bill of review in the 57th Judicial District Court of Bexar County, Texas, against Rudolph J. Hamborsky, appellee. In her bill of review, appellant sought a readjudication of the division of the Hamborsky’s community property as decreed on April 4,1972, in their suit for divorce.

Appellant alleges that prior to filing the suit for divorce, appellee conveyed 5.25 acres out of a 77.3 acre tract to his uncle, George R. Richnafsky, and that this conveyance was in fraud of appellant’s community interest. Appellant did not attempt to set this conveyance aside, but sought to set aside the entire property division and have the court readjudicate that portion of the divorce decree because this conveyance was in fraud of appellant’s community interest. The trial court sustained appellee’s plea in abatement, and appellant perfected her appeal to this court.

Appellant’s only point of error contends that the trial court erred in granting appel-lee’s plea in abatement, which dismissed appellant’s motion for bill of review, because a divorced wife has the right to reopen the matter of the division of the parties’ community property by bill of review when her husband’s fraud in misrepresenting the amount and value of their community property prevented the wife from obtaining a fair trial of her rights in the divorce proceedings and in the division of the parties’ community property.

The rules relating to bills of review in seeking to set aside, final judgment are stated by our Supreme Court in the case of Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) as follows:

Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments “are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted”; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. As said by the Supreme Court of California, “Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.” (citations omitted)

148 Tex. at 568-69, 226 S.W.2d at 998. Under these rules a trial court in the exercise of its equity powers has authority to grant this relief against its former judgment as equity and justice demands in a suit brought expressly for that purpose where the former judgment had been obtained by fraud. The fraud that will authorize a bill of review to set aside a former judgment must be what has been termed “extrinsic fraud.” Alexander v. Hagedorn, 148 Tex. at 574, 226 S.W.2d at 1001.

The type of fraud alleged by appellant is “intrinsic fraud” and will not authorize a court of equity to vacate a former judgment in an independent suit brought for that purpose. State v. Wright, 56 S.W.2d 950 (Tex.Civ.App.—Austin 1933, no writ). In State v. Wright the court stated:

‘Intrinsic fraud’ in the procurement of a judgment is not ground, however, for va-, eating such judgment in an independent suit brought for that purpose. And within that term is included such matters as fraudulent instruments, perjured testimony,- or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed. While in some instances this may seem a harsh rule, on the other hand, if judgments are to be reopened and attacked on the grounds of false testimony introduced in their procurement, where neither party is prevented from asserting all his rights, it is obvious that there would be no end to suits by the losing parties, attempting to relitigate their controversies in this manner after they had already had their day in court, and their cause had already been once adjudicated.

56 S.W.2d at 952.

Appellant’s allegation that the transfer was in fraud of her community interests would be a factor that the trial court could consider in dividing the community property. It might well be that the trial court would have divided the community property in a different manner had it heard evidence of this transfer and found that it was in fraud of the appellant’s community interest. Nevertheless, perjured testimony or testi-jnony withheld, which would have a bearing on an issue in the trial, is not a sufficient basis for setting aside a final judgment on bill of review. See Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940).

We hold under the state of the record in this case that the divorce decree should not be set aside and the community property division readjudicated. What we have said does not preclude appellant from bringing a suit to partition the property that was not disposed of in the divorce case. See Biggs v. Biggs, 553 S.W.2d 207 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dism’d).

The judgment of the trial court is affirmed.


text:
    John Joe LOPEZ, Appellant, v. The ARO CORPORATION, Appellee.
    No. 16194.
    Court of Civil Appeals of Texas, San Antonio.
    June 13, 1979.
    Rehearing Denied July 25, 1979.
    Richard Warren Mithoff, Jr., Nat B. King, Jamail & Kolius, Houston, for appellant.
    Melvin A. Krenek, Beckman, STanard & Olson, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This is a products liability case. John Joe Lopez, appellant, was injured when a grinding wheel on a sander-grinder manufactured by Aro Corporation, appellee, shattered and flew apart causing a piece of the wheel to become imbedded in appellant’s right leg. Appellant based his cause of action on strict liability in tort alleging that appellee failed to provide an adequate warning to the user of the danger of using the tool as a grinder without a guard.

Trial was to a jury, and based on the answers to special issues, the court entered judgment for appellee. Special Issue No. 2, which the jury answered “we do not,” reads as follows:

Do you find from a preponderance of the evidence' that the Aro Corporation failed to provide an adequate warning to users of the tool as a grinder of the danger of using the same without a guard?

The jury also found that appellant voluntarily assumed the risk of using the tool as a grinder without a guard.

The evidence shows that the sander-grinder, which is powered by air pressure, is made and sold by appellee as an industrial tool to be utilized in a factory or assembly line. It was made to be used as both a sander and a grinder. When the tool was used as a sander, no guard was necessary, but when used as a grinder, a guard was necessary to protect the operator. This sander-grinder had been shipped accompanied by a safety guard and an operator’s manual, which stated on page two under the heading “When Used as a Grinder: The tool should never be operated with guard removed.” This statement was conspicuously underlined in the operator’s manual.

The sander-grinder in question was manufactured on October 19, 1970, sold to Swing Machinery & Equipment Company, Inc., on November 10,1970, and subsequently resold by Swing Machinery & Equipment Company to Construction Modules, Inc., appellant’s employer at the time in question.

Appellee’s representative, Mr. R. Stanford Short, an engineer with 25 years of experience in the air tool industry, testified that there was no warning of any kind of the sander-grinder itself and that in 1970 no other manufacturer of similar tools attached to the tool itself a warning to use a safety guard. He further testified that any such warning attached to the tool itself would not likely endure long because of the heavy, dirty use made of such tools and that when this tool was designed and manufactured, all manufacturers of grinding wheels attached to each wheel a warning to use a safety guard so that no grinder would be operated without this warning being present.

On the morning of July 13, 1972, a fellow workman took the sander-grinder to the tool room and had a new grinding wheel put on the machine. This workman brought the tool back to the work area and connected it to an air hose. He then put the tool down and walked away to the other side of the work area to a tool box. Appellant picked the tool up and began grinding some metal walls with it when water started coming out of the tool. He then squatted down and turned it on full speed to get the water out, and the grinding wheel exploded. Appellant testified that the sander-grinder that he was using was pretty dirty because oil, dust, and concrete had accumulated on the machine.

Appellant’s first point of error contends that the trial court erred in entering judgment for appellee based on the jury’s answer to Special Issue No. 2 that appellee did not fail to provide an adequate warning to the user of the dangers of using the tool as a grinder without a guard because the evidence established this finding as a matter of law. Appellant argues that appellee not only had a duty to warn the ultimate user, but also had a duty to warn of the dangers of using the tool as a grinder without a guard. Appellant contends that Mr. Short, appellee’s representative, judicially admitted both the former duty since there was no warning on the sander-grinder itself and the latter duty since these dangers were not specified in the operator’s manual or directed to the ultimate user in any way. Alternatively, appellant argues in his second point of error that the trial court erred in overruling his motion for new trial because the jury’s answer to Special Issue No. 2 is contrary to these judicial admissions and is therefore against the great weight and preponderance of the evidence.

Appellant’s cause of action is based on the doctrine of strict liability in tort as enunciated by Section 402A of the Second Restatement of Torts. Texas has adopted this doctrine of products liability expressed in Section 402A. Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex.1974); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex. 1967). Under this doctrine, a seller who places in commerce a product rendered dangerous to life or limb by reason of some defect is strictly liable in tort to one who sustains injury because of the defective condition. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). Therefore, a seller under Section 402A has a duty to refrain from placing a product into the stream of trade in a defective condition unreasonably dangerous to the ultimate user. Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Texas L.Rev. 1185, 1212 (1976). This duty has been expanded to subject a seller to liability if he introduces an unreasonably dangerous, though nondefective, product into the stream of trade without adequate warning of its danger or without adequate directions for its use. Hamilton v. Motor Coach Industries, Inc., 569 S.W.2d 571, 575 (Tex.Civ. App.—Texarkana 1978, no writ); Green, supra, at 1200. Thus, a seller is strictly liable, even though its product is faultlessly manufactured and designed, if the product as marketed is unreasonably dangerous or likely to harm the user unless properly used. In such a case, the product would be in a “defective condition unreasonable dangerous” by virtue of the absence of an adequate warning. See Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465 (5th Cir. 1976); Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1275 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974); Restatement (Second) of Torts § 402A, Comments h & j (1965).

A product is unreasonably dangerous if an ordinary man, knowing the risks and dangers actually involved in its use, would not have marketed the product without supplying warnings about the risks and dangers involved in using the product as well as instructions on how to avoid those risks and dangers. Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex.1972); Keeton, Products Liability — Inadequacy of Information, 48 Texas L.Rev. 398 (1970). If a seller knows or should know of potential harm to a user because of the nature of its product, the seller is required to give adequate warnings of such danger. Bristol-Myers Company v. Gonzales, 561 S.W.2d 801 (Tex. 1978). This duty to warn extends to the employee-user as well as the employer-purchaser. Helicoid Gage Division of American Chain & Cable Co. v. Howell, 511 S.W.2d 573, 577 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). Accord, Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1091 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Sales & Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1, 129-130 (1976-77). In this case, it is undisputed that appellee knew that the use of the sander-grinder as a grinder without the guard was potentially harmful to the user. Thus, Aro Corporation, the Seller, owed a duty to Lopez, the user, to give adequate warnings of the risks and dangers of using the tool as a grinder without a guard. The only question here is whether Aro Corporation violated this duty by not supplying adequate warnings. We believe that the adequacy of the warning presents a fact question for the jury’s determination. Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.); Muncy v. Magnolia Chemical Co., 437 S.W.2d 15 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.); Green, supra, at 1211. “Whether a warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the minds of the users of the product.” Green, supra, at 1211.

In Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., plaintiff was injured when a grinding wheel shattered and flew apart. Plaintiff contended that the warning given was legally inadequate. At the time of the injury plaintiff was using a sander-grinder without a safety guard. A label attached to the grinding wheel read: “Warning: Thread wheel on spindle by hand. Do not thread wheel by starting motor. Use safety guard. Maximum safe r. p. m.’s 6045.” The Dallas Court of Civil Appeals concluded that the adequacy of the warning presented a jury issue, and the court summarized the essential factors of a legally adequate warning as follows:

(1) it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; (2) the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person.

518 S.W.2d at 872-73. In our case, the statement, “When Used as a Grinder: The tool should never be operated with guard removed,” could reasonably be considered a warning of the danger of using the tool as a grinder without a guard rather than merely a direction for its use.

A similar holding is found in Hamilton v. Motor Coach Industries, Inc., 569 S.W.2d 571 (Tex.Civ.App.—Texarkana 1978, no writ). In Hamilton a workman was injured while attempting to repair a spring loaded air cylinder on a bus. The manufacturer of the cylinder knew the spring was a hazard to one who might attempt to repair the cylinder. A warning was provided in the parts manual, which accompanied each bus sold, but no warning was placed on the cylinder itself. The court, in reversing and remanding a directed verdict for the manufacturer, held that under the facts of the case, a jury question was presented on whether the ultimate user was sufficiently warned.

In Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir. 1973), the court held that a warning contained in the service manual was sufficient as a matter of law to warn the ultimate user. In Reeves the tool that exploded was a powder-activated gun used to make strong fastenings directly to concrete or steel without the necessity of drilling holes. It had a firing chamber similar to that of a rifle or pistol and used specially loaded blank cartridges. The gun was held flush against the surface to which a fastening was being made, and special fasteners were propelled into the concrete or steel. The gun misfired while it was being used by Reeves, and in attempting to extract the shell, it exploded and injured him. The instruction manual furnished with this industrial tool contained instructions that if followed by the workman would have prevented his injury. The court held that under the evidence in the case, one of the defendants, Omark Industries, Inc., adequately discharged its duty to warn of the dangerous nature of the tool by distributing printed instructions complete with diagrams and illustrations with each new tool that it sold or delivered even though neither Reeves nor his immediate supervisor ever saw the printed instructions or received any specific warning about misfires.

Appellant’s contention that the warning was required to be placed on the sander-grinder is without merit. The evidence presents a fact issue on whether the warning contained in the manual, which is delivered to the purchaser of the sander-grinder, is sufficient to adequately warn the ultimate user of the product. In determining whether the ultimate user was adequately warned, we must examine the evidence in light of all the facts and circumstances surrounding the product’s actual use.

Appellee manufactured and sold the sander-grinder for industrial use to persons familiar with its operation and propensities. The adequacy of a manufacturer’s warning cannot be evaluated apart from the knowledge or expertise of those who could reasonably be expected to use the product. See Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976). The evidence also shows that this sander-grinder was stored and serviced in the tool room of appellee. It was converted from a sander to a grinder in the tool room where the instruction manual was kept. At the time the product was sold, all grinding wheels contained a warning to use a guard. After considering and weighing this evidence and all the other evidence in the case, we believe that the jury’s answer that appellee did not fail to provide an adequate warning to the user of the dangers of using the tool as a grinder without a guard is not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant also contends that the admissions of Mr. Short on the witness stand conclusively establish as a matter of law that appellee did not give an adequate warning to the user of the machine. We disagree.

On cross-examination by appellant’s counsel, Mr. Short testified as follows:

Q. Is there anything, Mr. Short, on the machine itself, warning or advising the user or the operator of the danger of using that machine as a grinder without a guard?
A. No, Sir, there is none.
Q. In Plaintiff’s Exhibit 1, your manual states under the paragraph, when used as a grinder, the tool should never be operated with guard removed. Is there anywhere in the manual, sir, that calls attention to the operator of the danger of using the machine without a guard?
A. I don’t think so.
Q. Do you want to check to be sure.
A. No, I feel quite sure that there is none there.
Q. You know there is not?
A. No, if it’s there, I have overlooked it several times.

As previously pointed out, it is undisputed that there was no warning contained on the sander-grinder itself. The ultimate issue to be decided by the jury was the adequacy of the warning to the user. Mr. Short’s testimony was at most an opinion or conclusion and would not be binding on appellee. See United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d). We think the correct rule is stated in 32A C.J.S. Evidence § 1040(3), as follows: “Adverse testimony by a party is not ordinarily subject to the rule that such testimony concludes him unless it is a statement of fact; statements which are merely guesses, estimates, opinions, or conclusions are not binding.” Accord, Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960).

Appellant’s other points are rendered immaterial by the above holding, and the judgment of the trial court is accordingly affirmed.

      . “§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”