author: SPARLING, Justice. CARVER, Justice,

text:
    James A. EGGERS, et al., Appellants, v. Glen A. HINCKLEY, Trustee, Appellee.
    No. 05-82-01230-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 24, 1984.
    Rehearing Denied Dec. 28, 1984.

      Robert W. Kantner, Jenkens & Gilchrist, Dallas, for appellants.
    W. Mike Baggett, Winstead, McGuire, Sechrest & Minick, Dallas, for appellee.
    Before the court en banc.
   SPARLING, Justice.

James A. Eggers and seventeen other members of the “Frisco Joint Venture” appeal a judgment for damages resulting from a defaulted promissory note executed to Hinckley and signed by “Sam Wright, Trustee,” a member of the venture. In twenty-four points of error, appellants, the venturers, challenge (1) the legal and factual sufficiency of the evidence to support several of the special issues; (2) the combination of types of authority in one issue; (3) the judge’s refusal to submit requested explanatory instructions; (4) the judge’s refusal to submit a requested issue; (5) the submission of an allegedly duplicitous issue; (6) the submission of an issue that did not allocate the burden of proof; and (7) the judge’s denial of appellant’s motion for instructed verdict. Appellee Hinckley asserts, by crosspoint, that the judge erroneously refused to award prejudgment interest. We overrule the venturers’ points of error, sustain Hinckley’s crosspoint of error, modify the judgment, and affirm.

Hinckley’s suit alleged that the ventur-ers had defaulted in payment of a promissory note and were personally liable for accrued but unpaid interest and taxes. Sam Wright, a member of the joint venture, executed closing instruments — a note and deed of trust — that purported to impose personal liability for interest and taxes. The venturers claim that Sam Wright, acting for Sam Wright and Associates, Realtors, Inc. (the managing venturer), lacked authority to impose personal liability. The court entered an agreed judgment against Wright and severed the claim against Wright from the claim against the other venturers. The jury found that the ventur-ers authorized Wright to assume liability in their behalf, and the court entered judgment against the venturers on the jury verdict.

Actual, Apparent, Implied Authority

The venturers argue that there was no evidence or insufficient evidence to support the jury’s finding, in answer to Special Issue No. 1, that the venturers gave Wright actual, apparent, or implied authority to sign closing instruments imposing personal liability.

We need not decide this issue because we hold as a matter of law that the venturers authorized Wright to impose personal liability. The rules for interpretation of contracts apply to the interpretation of agency authority. Restatement (Second) of Agency § 32 (1958). No ambiguity was pleaded by either party, and no issue concerning the parties’ intentions in signing the joint venture agreement was requested or submitted to the jury. We hold that the agreement is not ambiguous, and, accordingly, its interpretation and legal effect are questions of law to be determined by the court. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518-19 (Tex.1980). Thus, the jury’s answer to Special Issue No. 1, inquiring whether Wright had actual, apparent, or implied authority to bind the venturers to documents imposing personal liability, is not controlling.

One express purpose of the joint venture agreement was to acquire property described in a contract of sale imposing personal liability (paragraph 2.1), and the agreement provided that “the Venturers herewith authorize the Managing Venturer to act alone in their place and stead in carrying out the terms of the Contract of Sale agreements for the aforementioned property” (paragraph 5.3). The agreement authorized the Managing Venturer to bind the Joint Venture on his signature and to “perform all ministerial acts and to execute any and all documents ... necessary or expedient to carry out and effectuate the purpose of the parties as expressed in this agreement” (paragraph 5.1). The agreement further provided that “nothing shall give the Managing Venturer power to make a Venturer personally liable unless the Venturer signs, except in the case of closing the initial transaction as is set out herein” (paragraph 5.1). The venturers further agreed that the “unanimous consent of all Venturers shall be required to ... create any personal liability for the individual Venturers other than that personal liability to which the individual Ven-turers may have agreed in writing” (paragraph 5.2).

Read as a whole, the agreement clearly contemplates imposition of personal liability in the initial purchase transaction, the purchase of the venture property. It expressly authorizes the managing venturer to execute on behalf of the venturers a note and deed of trust in compliance with a contract of sale which provides for personal liability for interest and taxes. Accordingly, we find no conflicts or ambiguities and hold, as a matter of law, that the venturers, through their agreement, expressly authorized Wright to impose personal liability.

The dissent mistakenly questions Wright’s authority in August to bind participants in a joint venture formed in November. A contract of sale of the property was signed in August, but the closing instruments were executed in November. It was the closing instruments that bound the venturers to interest and taxes.

Although not presented as an issue on appeal, we note that both the Joint Venture Agreement and the closing instruments were signed on November 28, 1972. It cannot be determined in what order the instruments were executed. We hold, however, that this chronology is not germane to the disposition of this appeal because each of the venturers had previously read and approved the agreement in its final form.

In view of our holding that the evidence was sufficient to sustain a finding of actual authority, we need not consider the ventur-ers’ third point of error, whether the judge erred by combining actual, apparent, and implied authority in one special issue; nor the venturers' fourth point of error, whether the court erred by refusing its requested definition of apparent authority; nor points of error five, six, seven, and eight, addressing Special Issue No. 2, inquiring into the closing of the initial transaction; nor points twelve, thirteen, and fourteen, which challenge the legal and factual sufficiency of the evidence to support the jury’s finding that the venturers ratified the agreement and the definition of “ratification.” Accordingly, we overrule points of error one, two, three, four, nine, twelve, thirteen, and fourteen.

Evidence of Accrued Interest and Taxes

The venturers argue the absence or insufficiency of evidence to establish the amount of accrued interest and taxes because Hinckley signed an affidavit that conflicted with his testimony. Hinckley explained the inconsistency at trial, and his testimony was sufficient to present an issue of fact for the jury’s determination. The venturers additionally complain that the figures were calculated imprecisely, but they did not challenge the calculations or introduce contradictory evidence. Accordingly, we overrule points of error fifteen, sixteen, seventeen, and eighteen.

Subsequent Alteration of the Closing Instruments

The venturers argue that the evidence established as a matter of law that Hinckley altered the closing instruments after Wright signed them or, alternatively, that the jury’s finding of no alteration was against the great weight and preponderance of the evidence. We disagree. Wright testified that the closing instruments, at the time of execution, did not impose personal liability. Hinckley testified that he neither altered the documents nor was aware of any alteration, and he further demonstrated that alteration technically was impossible. We hold that there was sufficient evidence to create a factual dispute for the jury to resolve.

The venturers also claim that the judge erred by refusing to submit a special issue to determine whether Wright knew that the closing instruments imposed personal liability. They argue that Wright’s knowledge was relevant to the issues of alteration, apparent authority, and ratification. We disagree. The question of Wright’s knowledge is not an issue “controlling the disposition of the case,” TEX. R.CIV.P. 277, but merely evidentiary. See also TEX.R.CIV.P. 279 (“When the court submits a case upon special issues, he shall submit the controlling issues.... Where the court has fairly submitted the controlling issues ... the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue”). We overrule points of error ten and eleven.

The Judgment Against Wright

The venturers urge that because Hinck-ley obtained a judgment against Wright, individually, the suit against the other ven-turers was barred by the doctrines of election of remedies, waiver, and estoppel. We do not agree.

The venturers first contend that Hinckley chose between two inconsistent but coextensive remedies, thereby electing his remedy. We hold that the remedies were not inconsistent. Wright and the investors were, as a matter of law, jointly and severally liable for all obligations. Misco-United Supply, Inc. v. Petroleum Corp., 462 F.2d 75, 77-78 (5th Cir.1972); Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554, 560 (1925); Cherokee Village v. Henderson, 538 S.W.2d 169, 173 (Tex.Civ. App. — Houston [1st Dist.j 1976, writ dism’d). Accordingly, we hold that the doctrine of election of remedies is inapplicable to the instant case. See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 275, n. 35 (5th Cir.1980).

The venturers next argue that the jury’s finding that Hinckley did not waive his cause of action against the venturers was against the great weight and preponderance of the evidence or that waiver was established as a matter of law. We disagree. Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with the claim of a right. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Shook v. Republic National Bank of Dallas, 627 S.W.2d 741, 749 (Tex.App. — Tyler 1981), rev’d on other grounds, 653 S.W.2d 278 (Tex.1983). Although waiver may be implied, the mere act of taking a judgment against one principal is not, as a matter of law, inconsistent with seeking judgment against other jointly and severally liable principals. Thus, whether Hinckley knowingly and intentionally relinquished a legal right was a question of fact for the jury’s determination. Landrum v. Devenport, 616 S.W.2d 359, 362 (Tex.Civ.App. — Texarkana 1981, no writ).

Finally, we do not agree that the venturers established estoppel as a matter of law or that the jury’s finding that Hinck-ley was not estopped was against the great weight and preponderance of the evidence. A party to a judicial proceeding is estopped to take a position in conflict with a stance in a prior judicial proceeding if the position prejudices the adverse party and the parties and issues are the same. Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269, 276 (1929). The parties herein are different, and, as noted, obtaining a judgment against Wright was not inconsistent with suing the other investors. Accordingly, we overrule grounds of error nineteen through twenty-four, inclusive.

Prejudgment Interest

By cross-point, Hinckley contends that the court erred by refusing to award prejudgment interest. We agree. “Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is determined to have been due and payable at a definite date prior to judgment.” Miner-Dederick Construction Corp. v. Mid-County Rental Service, Inc., 603 S.W.2d 193, 200 (Tex.1980). Conditions governing the measure of damages existed on February 3, 1976, the date the joint venture property was foreclosed. Accordingly, we modify the judgment to delete the paragraph ordering that prejudgment interest be denied and to add the following paragraph:

IT IS FURTHER ORDERED that the judgment hereby rendered bear interest at the rate of six percent (6%) per annum from March 4, 1976, to July 23, 1982.

See TEX.REV.CIV.STAT.ANN. art. 5069-1.03 (Vernon Supp.1984). Accordingly, we overrule all other points of error and affirm the judgment, as modified.

GUITTARD, C.J., and AKIN, SHUM-PERT, STEPHENS, STEWART, STOREY and ROWE, JJ., join in the majority opinion.

CARVER, J., dissents.

ALLEN, VANCE and WHITHAM, JJ., join in the dissenting opinion.

GUILLOT, J., not participating.

CARVER, Justice,

dissenting.

I am unable to agree with the majority opinion because the record fails to show that Sam Wright, Trustee, was an agent of principals to whom his liability could be imputed.

James A. Eggers, along with 17 other members of the “Frisco Joint Venture,” appeal from a judgment imposing upon them unpaid interest and unpaid taxes which were, admittedly, the primary obligation of “Sam Wright, Trustee” arising from his contract and his subsequently executed limited liability note and deed of trust securing his purchase of land on credit. The principal facts are not in dispute. Hinck-ley, Trustee, as Seller, and Wright, Trustee, as Purchaser, entered into a contract on August 31, 1972, covering 120 acres priced at $651,423.60, payable $97,713.60 at closing and the balance in a limited liability note for $553,710.00, secured by a deed of trust. The purchaser’s personal liability on the note was limited to unpaid interest accrued and unpaid taxes accrued to the date of any foreclosure. The contract was closed on November 28, 1972, upon the terms set out in the contract with a deed into “Sam Wright, Trustee” and the note and deed of trust executed by “Sam Wright, Trustee.” Subsequently, the note’s terms were breached, the deed of trust foreclosed, and suit was brought for accrued and unpaid interest and for accrued and unpaid taxes, together with attorney’s fees. The suit was brought against “Sam Wright, Trustee” as the party executing the note and also against the 18 members of the “Frisco Joint Venture” on the theory that Wright was the “agent” of the venturers with actual authority to bind them to the limited obligation of the note and deed of trust given to Hinckley, Trustee. Wright did not defend the suit, his case was severed, he agreed on a judgment for $38,680.05, and actually paid $21,-500.00 thereon. The remaining defendants sought, and were granted, summary judgment, but this judgment was reversed on appeal. Hinckley v. Eggers, 587 S.W.2d 448 (Tex.Civ.App. — Dallas 1979, writ ref’d n.r.e.).

Upon trial to a jury, the verdict found: (1) that Sam Wright had actual, apparent, or implied authority to act for the defendants when he signed the note and deed of trust; (2) that the note and deed of trust were part of the “initial closing” in which the Frisco Joint Venture purchased the property from Hinckley; (3) that the defendants ratified the action of Wright; (4) that the accrued interest was $41,444.18; (5) that the accrued taxes were $10,646.02; (6) that reasonable attorney’s fees to try Hinckley’s suit were $17,000.00; (7) that the note and deed of trust were not altered after Wright signed them; (8) that Hinck-ley did not waive his claim against these defendants by taking a judgment against Wright; and (9) that Hinckley was not es-topped, by his judgment against Wright, from pursuing his claim against these defendants. Upon this verdict, and the admitted collection from Wright, the trial court entered judgment in favor of Hinck-ley, Trustee, for the balance of the undischarged interest and taxes; interest after judgment; and the attorney’s fees found by the jury.

The appealing parties primarily urge the absence, or insufficiency, of evidence to support the imputation of the liability of the maker of the note to them. I would agree. The holder of the note signed “Sam Wright, Trustee” seeks to impute liability upon the theory that Wright was not a trustee, whose cestuis que trust could not be held liable, but an agent whose principals were liable; however, I conclude that the proof fails to achieve the conversion from “Trustee” to “Agent.”

While the contract to purchase, the deed, the vendor’s lien note, and the deed of trust were all in the name of “Sam Wright, Trustee,” the “designation of a party as a ‘trustee’ does not in itself create a trust,” as was held in Spiritas v. Robinowitz, 544 S.W.2d 710 (Tex.Civ.App. — Dallas 1976, writ ref’d n.r.e.). Moreover, in the absence of the existence of a trust, of which Sam Wright was in fact the trustee, “the use of ‘Trustee’ in the deed is merely a description and without legal effect. It is as if title were in Robinowitz [Sam Wright in our case] individually.” 544 S.W.2d at 715; Costello v. Hillcrest State Bank, 380 S.W.2d 780, 782 (Tex.Civ.App. — Dallas 1964, no writ). However, if a trust in fact existed, Hinckley, Trustee, was put on notice thereof and took his note subject to the trust. Studebaker Brothers Manufacturing Co. v. Hunt, 38 S.W. 1134 (Tex.Civ. App.1896, writ ref’d).

The majority erroneously holds that Sam Wright was neither a “trustee” nor an “individual,” but an “agent” with actual authority of seventeen principals, evidenced by a writing signed by the alleged principals three months after Sam Wright, Trustee, contracted to buy the property and give the note. It is an established principle that a contract to acquire land vests equitable title in the vendee with the vesting of legal title conditioned only upon the vendee’s tender of the consideration contracted. Leeson v. City of Houston, 243 S.W. 485, 488 (Tex.Comm’n App.1922, judgmt adopted); City of Garland v. Wentzel, 294 S.W.2d 145 (Tex.Civ.App.— Dallas 1956, writ ref’d n.r.e.). The record reflects that on August 31, 1978, the date the sales contract was executed, there were none of the subsequently alleged principals of Sam Wright yet known or yet recruited, and that Wright informed Hinckley of this fact. The sales contract of August 31, 1978 signed by Wright imposed upon him the very liability sought to be enforced in this suit. The liability was his and his alone when undertaken because he had no “principals” then existing. I would hold that ex post facto “principals,” if any, are not liable for acts or contracts of the “agent” antedating the principal and agent relationship.

But, the majority says, on the same day Wright received the deed under his contract, November 28, 1972, seventeen ven-turers signed an agreement naming Wright their “managing venturer” and giving him authority to accomplish the acquisition for them of the very same property. In this fashion, the majority says, what had been Wright’s individual, or trustee’s, liability became the venture’s liability. However, this reasoning fails because the opening premise is false, under our record. The venturers’ November 28 agreement does not appoint Wright as managing venturer but appoints to this office, and gives “agency” authority to, a corporation. The ven-turers agreement paragraph 5.1 provides (in part):

Management. It is agreed that the power to perform general ministerial acts relating to the daily business affairs of the Joint Venture, unless expressly provided to the contrary, shall be in the Managing Venturer, to-wit: Sam Wright and Associates, Realtors, Inc.;

The only appointment of Sam Wright by the venturers is set out in the same instrument paragraph 5.5 stating:

Trustee. Sam Wright of the Managing Venturer, Sam Wright and Associates, Realtors, Inc., is hereby appointed Trustee to act for this Joint Venture. In the event Sam Wright, Trustee fails or refuses to act, has been removed as provided herein, is incapacitated, or is deceased, fifty-one percent (51%) of the Venturers in interest, not in numbers, can appoint a substitute Trustee. Said substitute Trustee to have all powers that Sam Wright, Trustee, had under this agreement.

Since Wright was not made the venturers’ “managing venturer,” or “agent,” by the venturers’ agreement; the majority opinion on this ground is untenable, and I would hold to the contrary.

While the majority opinion does not rest upon “implied” or “apparent” authority to sustain the judgment below, I note the jury’s verdict as well as Hinckley’s arguments seeking to sustain the judgment on these grounds. I find no evidence in the record that Sam Wright had any authority in August, from those who were to become venturers in November, from which authority could be “implied” to bind these ventur-ers to a liability which was Wright’s by his August contract. Further, I find no evidence in the record of any act in August, by those who were to become venturers in November, which act could be said to have clothed Sam Wright with “apparent” authority to bind anyone else to the personal liability Sam Wright undertook in his August contract. There being no evidence in the record to support the jury’s finding on these issues, the trial court’s judgment, insofar as it may have rested on these issues, was in error, and I would so find.

Further, while the majority opinion does not rest upon ratification, I note the jury’s finding of ratification and Hinckley’s argument that the trial court’s judgment should be sustained on this ground. The record reflects that, some weeks after the execution of the venturers’ agreement on November 28, 1972, Sam Wright, Trustee, mailed copies of his contract, deed, note, and deed of trust to the other members of the Frisco Joint Venture. No replies were received, and Hinckley urged that the ven-turers’ silence ratified the acquisition by Frisco Joint Venture upon the authority of the managing venturer and the imposition of personal liability upon the venturers as a reasonable necessary term and consistent with paragraph 5.1 (above quoted) of the venturers’ agreement. However, Frisco Joint Venture never acquired any property by their managing venturer or otherwise. The documents mailed do not purport to show any act by the corporation named managing venturer; consequently, neither ratification nor repudiation was called for under the circumstances. The documents mailed did reflect acts of a Trustee, from August through November, and the same Trustee named by the venturers in November; however, notice to a beneficiary of an act of his Trustee does not call for either ratification or repudiation because, in no event, is a beneficiary liable for the acts of his Trustee. McCamey v. Hollister Oil Co., 241 S.W. 689 (Tex.Civ.App — Fort Worth 1922), affd, 115 Tex. 49, 274 S.W. 562 (1925). To the extent that the trial court’s judgment rests upon the jury’s finding of ratification, I would find the judgment to be in error.

I would reverse the trial court’s judgment and render judgment that Hinckley take nothing.

      . We note with interest that the dissent would hold that the nature of the relationship was one of trust rather than agency or joint venture. This "trust” theory, which absolves the ventur-ers of liability, was never pleaded, was not an issue in trial, was not the subject of a request for special issues, was not briefed on appeal, nor argued during submission. Perhaps the litigants are also aware of Spiritas v. Rabinowitz, 544 S.W.2d 710 (Tex.Civ.App. — Dallas, 1976, writ ref d n.r.e.), which declares that the nomenclature "trustee” does not create a trust. Therefore, we do not agree with the dissent's statement that Hinckley "seeks to impute liability upon the theory that Wright was not a trustee, whose cestuis que trust could not be held liable. ..." In fact, Hinckley never argued that Wright was not a trustee because the issue never arose. Accordingly, we may not decide this appeal on the theory that a trust relationship was created. See Davis v. Campbell, 572 S.W.2d 660 (Tex.1978) (parties are restricted on appeal to theory on which case was tried); El Paso Environmental Systems, Inc. v. Filtronics, Inc., 609 S.W.2d 810, 813 (Tex.Civ.App. — El Paso 1980, writ ref d n.r.e.) (appeals court should not decide case on theory different from that on which it was pleaded and tried).

      . Consequently, we disagree with the venturers' contention that their individual liabilities should be limited to their pro rata portion of the debt. The joint venture agreement apportions the liabilities among the venturers vis-a-vis one another but is ineffective to limit each venturer’s joint and several liability to a third party.

      . “When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable."


source: Caselaw Access Project

author: STEPHENS, Justice. SHUMPERT, Justice,

license: Public Domain

text:
    J. STILES, INC., Appellant, v. Jack EVANS and Mary Kay Evans, Appellee.
    No. 05-83-00490-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 1984.
    Rehearing Denied Dec. 10, 1985.
    See also Tex.App., 667 S.W.2d 178.
    C. Thomas Wesner, Jr., Wesner, Coke, Boyd & Clymer, Dallas, for appellant.
    Royal Brin, Jr., Strasburger & Price, Boyd Waggoner, Dallas, for appellee.
    Before the court en bane.
   STEPHENS, Justice.

Jack and Mary Evans filed suit against J. Stiles, Inc., for breach of express and implied warranties and for damages under the Deceptive Trade Practices Act resulting from the use of faulty brick on the home that they bought from Stiles. Judgment, with trebled damages, was rendered against Stiles in the amount of one hundred fifty-five thousand, five hundred eighty-two dollars ($155,582) plus attorney’s fees. From this judgment Stiles appeals, asserting sixty points of error. We address only those facts and issues relevant to the disposition of the case. For the reasons stated below, we reverse and render a take nothing judgment against Evans.

Prior to purchasing the house in question, Jack and Mary Evans observed that certain brick were cracked or broken, including some brick that were crumbling, with some parts fallen away and some faces popped off. Consequently, Evans negotiated an additional paragraph in the contract for the sale which stated: “Cracked and broken brick to be replaced by Seller to Buyer’s satisfaction.” Stiles replaced the cracked or broken brick, and the sale was consummated on or about February 9, 1979. At the closing, Evans received an express home owner’s warranty which contained approved standards from the Home Owner’s Warranty Council of Metropolitan Dallas, Inc. (HOW).

In a letter dated March 9, 1979, Evans complained that the brick continued to disintegrate in many areas and requested assurance in writing from Stiles that Stiles would continue to replace cracked or broken brick and pay for damage to plants resulting from the brick replacement as long as the brick continued to deteriorate. In response to the letter, Stiles replaced the additional cracked or broken brick, but he refused Evans’ demand for an extended warranty of replacement of deteriorated brick.

Evans made no further demand for replacement of cracked and broken brick. However, on June 4, 1980, Evans wrote to the HOW counsel to institute arbitration in which he sought to have Stiles replace all the brick on the house with a different type of brick. The HOW arbitrator awarded Evans replacement of cracked and broken brick on the house, denied repair of decorative walls, and required Stiles to apply a penetrating type of moisture barrier on the house brick.

On July 1, 1980, Evans wrote a letter notifying Stiles that he intended to file suit under the Deceptive Trade Practices Act because the HOW warranty was essentially worthless. On July 17, 1980, Evans again wrote to Stiles explaining that all the brick needed replacement because the problem was a continuing one and could not be remedied in any other way. On January 12, 1981, Evans agreed to accept the HOW arbitration award if Stiles would give a ten year additional warranty on the brick and agree to pay certain other expenses. Stiles agreed to comply with the arbitration award but refused to pay additional costs or give an additional warranty, contending that his compliance with the HOW arbitration award fulfilled his warranty obligations. Thereafter, Evans refused to accept Stiles’ offer to replace the cracked and broken brick under the HOW warranty and filed suit on March 18, 1981.

The jury found that Stiles had made an express warranty to replace cracked and broken brick to Evans’ satisfaction. Evans contends that this warranty was created by the additional paragraph he negotiated in the contract for sale which ultimately merged with his deed at closing. Stiles maintains that the HOW warranty was the only express warranty that survived closing. In either case, Evans cannot recover for the breach of an express warranty to replace the cracked or broken brick because he failed to meet his burden of proving damages. The damages issue answered by the jury concerned the replacement of all the brick on the house. While this may be supportive of damages for breach of an implied warranty, it is not supportive of damages for breach of an express warranty to replace cracked or broken brick. The issue supporting damages for breach of an express warranty to replace cracked or broken brick was not answered because it was made contingent upon the jury’s finding that Evans was unreasonable in asking Stiles to replace all the brick and the jury found that his request was reasonable. Because Evans neither objected to the issues as they were presented to the jury nor complained that the issue of damages for replacement of cracked or broken brick remained unanswered, he cannot now complain that no damages were found for breach of an express warranty.

The charge to the jury included two issues on implied warranties which asked, first, whether the house was constructed in a good workmanlike manner, and second, whether it was habitable. Stiles objected to these issues at trial and now contends that, by separating “good workmanlike manner” and “habitability” into two issues, the court erroneously bifurcated the implied warranty recognized in Humber v. Morton, 426 S.W.2d 554 (Tex.1968). Further, he contends that, because the jury found that the house was habitable, as a matter of law he did not breach the Humber implied warranty. We agree.

The Texas Supreme Court first extended implied warranties to the sale of real estate in Humber, 426 S.W.2d 554. The Humber decision emerged from a situation in which a widow purchased a house from a builder, and the house was constructed with such poor workmanship that it caught on fire the first time a fire was lighted in the fireplace. With these facts before it, the court in Humber rejected the doctrine of caveat emptor and “held that a builder-vendor who built and conveyed a house impliedly warranted that the house was constructed in a good workmanlike manner and was suitable for human habitation.” G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982).

Evans maintains that Humber provides for two separate warranties. He relies upon the use of the plural form “warranties” in Watel v. Richman, 576 S.W.2d 779 (Tex.1978), in which the supreme court referred to “the implied warranties described in Humber-” Mat 780. We disagree. The court in Watel affirmed Richman v. Watel, 565 S.W.2d 101 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.), in which the appellate court had reversed a summary judgment because disputed facts existed. The supreme court had before it the appellate holding that the wording of an express written warranty did not limit “such implied warranty of fitness.” Richman, 565 S.W.2d at 102. In Watel, 576 S.W.2d 779, the supreme court specifically reserved this question which it later addressed in G-WL, 643 S.W.2d 392, stating that “the implied warranty of fitness” could be excluded by express language in a contract. Thus, we do not construe the use of the plural form “warranties” in Watel as intending to bifurcate the Humber warranty that a house will be constructed in good workmanlike manner and suitable for human habitation.

In Gupta v. Ritter Homes, Inc., 646 S.W.2d 168, 169 (Tex.1983), the court extended liability of the builder for this “implied warranty of habitability” to subsequent purchasers of a house where latent defects manifested themselves after the purchase. In Gupta, the first purchaser sold his new house after living in it only three months. Subsequently, because of a defect in the slab foundation, the house settled excessively “causing the walls to crack, the roof to leak, and the patio to pull away from the rest of the house.” Id. at 169. Thus, the house became unsuitable for human habitation.

There are no Texas cases extending the Humber warranty to items of workmanship that do not affect the habitability of a house. Rather, in Turner v. Conrad, 618 S.W.2d 850 (Tex.Civ.App.—Ft. Worth 1981, writ ref’d n.r.e.), the court of appeals stated: “Even in cases where implied warranties were deemed existent as applied thereto, it has never been extended to fences, dwellings, and ancillary construction in and of themselves, whether erected to be sold at the same time as the principal structure or not.” Id. at 853; see also Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167, 174 (Tex.App.—Fort Worth 1982, writ ref'd n.r.e.).

We hold that, in Humber, the court created a single implied warranty that a house would be constructed in good workmanlike- manner and suitable for human habitation. The jury finding, that the Evans’ house was habitable, is a finding that Stiles did not breach the Humber implied warranty. Thus, we sustain Stiles’ points of error.

Accordingly, we reverse and render a take-nothing judgment against Evans.

GUITTARD, C.J., and ALLEN, CARVER, GUILLOT and VANCE, JJ., join in the majority opinion.

STOREY, J., concurs in the result of the majority opinion.

AKIN, ROWE, SPARLING, STEWART and WHITHAM, JJ., join in the dissent.

SHUMPERT, Justice,

dissenting.

I respectfully dissent. I write to express my views on the matters addressed by the majority. I do not address the other issues raised by Stiles in points of error not discussed in the majority opinion. The majority holds that the implied warranty of quality that Humber v. Morton, 426 S.W.2d 554 (Tex.1968), extends to the sale of new houses is breached only if the house is neither constructed in a good and workmanlike manner nor is suitable for human habitation. This holding in effect means that in Texas there is no implied warranty of good and workmanlike construction independent of an implied warranty of habitability in sales of new homes.

The majority, in my view, reads far too much into the fact that the Humber court recognized an implied warranty of construction in a good and workmanlike manner and habitability. The use of the term “warranty” in the singular is by no means dispositive of the question of whether there is an implied warranty of habitability distinct from the implied warranty of workmanlike construction. The Colorado Court of Appeals, in Hoagland v. Celebrity Homes, Inc., 40 Colo.App. 215, 572 P.2d 493, 494 (1977), referred to the “implied warranty of habitability and workmanlike construction” but nonetheless affirmed an award for “breach of the builder’s implied warranty of workmanlike construction.” Mississippi has adopted the Humber formulation that there is “an implied warranty that the home was built in a workmanlike manner and is suitable for habitation.” Brown v. Elton Chalk, Inc., 358 So.2d 721, 722 (Miss.1978); Oliver v. City Builders, Inc., 303 So.2d 466, 470 (Miss.1974). Nevertheless, the Mississippi Supreme Court has recognized an independent implied warranty of good and workmanlike construction. Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670, 672 (Miss.1983).

In addition, the cases the majority cites do not support its position. Watel v. Richman, 576 S.W.2d 779 (Tex.1978) did involve an apparent breach of the implied warranty of habitability. Thus, as the majority insists, the fact that the supreme court referred to “the implied warranties described in Humber, ...” 576 S.W.2d at 780 (emphasis added), is not decisive. Still, Watel nowhere holds or even states as dictum that there is no independent implied warrant of construction in a good and workmanlike manner when there is a sale of a new home. Nor do Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex.1983); Turner v. Conrad, 618 S.W.2d 850 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.); or Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167,174 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.) support the majority's holding. Gupta is merely a case like Watel in which the warranty of habitability was the warranty at issue. Turner merely holds that the Humber warranty does not extend to “ancillary construction” such as fences. Turner, 618 S.W.2d at 853. Anthony Industries cites Turner for this proposition. Anthony Industries and Turner do not, as the majority implies, support the proposition that the implied warranty of good and workmanlike construction of a new house extends only to items of workmanship that affect the habitability of a house.

I would hold that the relevant Texas authority dictates that there is an independent implied warranty of construction in a good and workmanlike manner in a sale of a new house. When one looks at the cases that the supreme court cited in Humber to support its position that there is an implied warranty of quality in new home sales, one finds cases asserting both an implied warranty of habitability, such as Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963) and Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474, 476 (1958), and an implied warranty of construction in a good and workmanlike manner, such as Loma Vista Development Co. v. Johnson, 177 S.W.2d 225 (Tex.Civ.App.—San Antonio 1943) (dictum), rev’d on other grounds, 142 Tex. 686, 180 S.W.2d 922 (1944) and Moore v. Werner, 418 S.W.2d 918 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ).

The dictum from Loma Vista that the supreme court quoted with approval was: “By offering the [new] house for sale as a new and complete structure appellant impliedly warranted that it was properly constructed and of good material and specifically that it had a good foundation_” Moore v. Werner concerned defects in a patio and driveway, defects which in no way could be deemed to constitute a breach of the implied warranty of habitability. See Kamarath v. Bennett, 568 S.W.2d 658, 661 (Tex.1978) (implied warranty of habitability in rental housing breached only if there are defects “in the facilities that are vital to the use of the premises for residential purposes”); also Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493, 496 (Tex.Civ.App.—Dallas 1977), writ ref’d n.r.e. per curiam, 568 S.W.2d 661, 662 (Tex.1978). The Humber court quoted with approval the Moore court’s holding that “It was the seller’s duty to perform the work in a good and workmanlike manner and to furnish adequate materials, and failing to do so, we believe the rule of implied warranty of fitness applies.” Moore v. Werner, 418 S.W.2d at 920, quoted in Humber v. Morton, 426 S.W.2d at 561.

Moore is not the only Texas decision finding an implied warranty of construction in a good and workmanlike manner in new home sales. Certain-Teed Products Corp. v. Bell, 411 S.W.2d 596, 599 (Tex.Civ.App.—Amarillo 1966), aff'd on other grounds, 422 S.W.2d 719 (Tex.1968), which concerned the sale of a new house, held that there was a “principle of implied warranty for good and workmanlike construction required of the builder regardless of whether there are written specifications....” Gibson v. John D. Campbell and Co., 624 S.W.2d 728, 733 (Tex.App.—Fort Worth 1981, no writ) (builder-vendor under duty to construct house in a good workmanlike manner, citing Humber); New Home Construction Corp. v. O’Neill, 373 S.W.2d 798, 799-800 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.) (recovery allowed for defects in material and workmanship even in absence of express warranty); Lincoln v. Pohly, 325 S.W.2d 170, 172-73 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.) (failure to construct and finish house with good workmanship and good materials renders contractor liable for resulting damages). Certain-Teed has not lost its vitality in the wake of Humber. Thomas v. Atlas Foundation Co., Inc., 609 S.W.2d 302, 303-04 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.) cites Certain-Teed for the general proposition that in construction contracts there is an implied warranty of construction in a good and workmanlike manner running from the sub-contractor to the consumer.

Thomas is, unfortunately, not dispositive of the present case since the construction contract in Thomas did not involve the sale of a new house, but rather addition of a porch to a house previously constructed and bought. However, Thomas does highlight the fact that the majority opinion of the instant case would exempt builder-vendors of new homes from the general rule that construction contractors are subject to an independent implied warranty of construction in a good and workmanlike manner. Rowson v. Fuller, 230 S.W.2d 355, 357 (Tex.Civ.App.—Dallas 1950, writ ref’d n.r.e.); Metropolitan Casualty Co. of New York v. Medina Rural High School District No. 5, 53 S.W.2d 1026, 1028 (Tex.Civ. App. — San Antonio 1932, writ dism’d). I see no warrant for such an exemption.

Even before Humber, the Texas Courts of Civil Appeals had recognized an independent implied warranty of construction in a good and workmanlike manner in new home sales. The thrust of Humber was to expand the buyer’s remedies in new home sales. At best, it is implausible that Hum-ber overruled the decisions recognizing an independent implied warranty of construction in a good and workmanlike manner and placed on homebuyers the greater burden of proving breach of both the warranty of good and workmanlike construction and the warranty of habitability in order to recover. I regard Humber as an approval of those Texas cases finding an independent implied warranty of good and workmanlike construction and additionally as an adoption of the implied warranty of habitability recognized in some of the cases from other jurisdictions which the Humber court cited. I would therefore hold that a buyer of a new home may recover either for breach of the warranty of habitability or for breach of the warranty of construction in a good and workmanlike manner. I would overrule Stiles in his point of error that the majority sustains in their determination to reverse and render a take-nothing judgment against Evans.

AKIN, ROWE, SPARLING, STEWART and WHITHAM, JJ., join in the dissent.

      . Other jurisdictions which have formulated the warranty of quality in essentially the same way as Humber but have acknowledged an independent implied warranty of construction in a good and workmanlike manner include: Connecticut, Cobum v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599, 601 (1977) (uses Humber-like language), Vemali v. Centrella, 28 Conn.Sup. 476, 266 A.2d 200, 201-04 (1970) (recognizes independent implied warranty of good and workmanlike construction); New Jersey, Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788, 789-91 (1979) (applies warranty of good and workmanlike construction), McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283, 1292 (1979) (uses Humber -like language); New York, DeRoche v. Dame, 75 A.D.2d 384, 430 N.Y.S.2d 390, 392 (1980), app. dism’d 51 N.Y.2d 821, 433 N.Y. S.2d 427, 413 N.E.2d 366 (1980) (uses Texas language), Centrella v. Holland Construction Corp., 82 Misc.2d 537, 370 N.Y.S.2d 832, 834-35 (1975) (recognizes warranty of good and workmanlike construction); Oklahoma, Jones v. Gatewood, 381 P.2d 158, 159 (Okla.1963) (uses Humber-like language); Elden v. Simmons, 631 P.2d 739 (refers to "warranties” of habitability and workmanlike construction, allows recovery for crumbling brick); Oregon, Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019, 1022 (1974) (uses Humber -like language); Beveridge v. King, 50 Or.App. 585, 623 P.2d 1132, 1133 (recognizes warranty of good and workmanlike construction); South Dakota, Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803, 809 (1967) (uses Humber-like language); Scott v. Wagner, 274 N.W.2d 266, 267 (S.D.1979) (allows recovery for breach of implied warranty of construction in a good and workmanlike manner). Courts in Arizona, Columbia Western Corp. v. Vela, 122 Ariz. 28, 592 P.2d 1294, 1299 (1979), and Rhode Island, Casavant v. Campopiano, 114 R.I. 24, 327 A.2d 831, 833 (1974) have referred to the implied “warranties" of habitability and workmanship. In addition, courts in a number of jurisdictions which have formulated the implied warranty of quality somewhat differently from Humber seem to have recognized an independent implied warranty of construction in a good and workmanlike manner in new home sales. These include courts in California, Pollard v. Saxe & Yolles Development Co., 12 Cal.3d 374, 15 Cal.Rptr. 648, 525 P.2d 88, 91 (1974); Florida, Schmeck v. Sea Oats Condominium Association, Inc., 441 So.2d 1092, 1097 (Dist.Ct.App. 1983); Illinois, Petersen v. Hubschman Construction Co., Inc., Ill IH.Dec. 746, 389 N.E.2d 1154, 1159-1160 (1979) (warranty of habitability construed broadly to include warranty against "defects in substance in construction”); Kentucky, Crawley v. Terhune, 437 S.W.2d 743, 745 (Ky.1969); Maine, Wimmer v. Down East Properties, Inc., 406 A.2d 88, 93 (Me.1979); Missouri, Steffens v. Paramount Properties, Inc., 667 S.W.2d 725, 111 (Mo.App.1984), Ribando v. Sullivan, 588 S.W.2d 120, 122-23 (Mo.App.1979); but see Crowder v. Vandendeale, 564 S.W.2d 879, 882 (Mo.1978) (no tort recovery for lack of ordinary care in construction by homebuilder), Lieber v. Bridges, 650 S.W.2d 688, 690 (Mo.App.1983) (evidence of unworkmanlike conduct irrelevant in implied warranty case), also Clark v. Landelco, Inc., 657 S.W.2d 634, 635-36 (Mo.App.1983); Nebraska, Henggeler v. Jindra, 191 Neb. 317, 214 N.W.2d 925, 926 (1974); North Carolina, Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776, 783 (1974), George v. Veach, 313 S.E.2d 920, 922 (Ct.App.1984); North Dakota, Carbon Homes, Inc. v. Messmer, 307 N.W.2d 564, 567 (N.D.1981); Ohio, Vanderschrier v. Aaron, 103 Ohio App. 340, 140 N.E.2d 819, 821 (1957), but see Mitchem v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594, 598-99 (1966) (perhaps abandoning the implied warranty theory altogether); Tennessee, Dixon v. Mountain City Construction Co., 632 S.W.2d 538, 541-542 (Tenn. 1982); West Virginia, Gamble v. Main, 300 S.E.2d 110, 113, 116 n. 9 (W.Va.1983). The following states, however, seem to find habitability, in the Texas sense, an essential element of the implied warranty: Alabama, Sims v. Lewb, 374 So.2d 298, 303 (Ala.1979); but see B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671-72, 674 (1979); Idaho, Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698, 711 (1966); Indiana, Theb v. Heuer, 264 Ind. 1, 280 N.E.2d 300, 303 (1972); Michigan, Weeks v. Slavick Builders, 24 Mich.App. 621, 180 N.W.2d 503, 507 (1970), aff’d on other grounds, 384 Mich. 257, 181 N.W.2d 271 (1970) (warranty called "warranty of fitness for purpose intended”), Ramos v. Holmberg, 67 Mich.App. 470, 241 N.W.2d 253, 255 (1976) (warranty simply called "warranty of habitability”); Montana, Chandler v. Madsen, 642 P.2d 1028, 1032 (Mont.1982); Washington, House v. Thornton, 76 Wash.2d 428, 457 P.2d 199, 203 (1969).

      . Turner also grounded its decision in the case on the fact that the “principal structure” was used and not new and on the fact that the buyers had agreed to take the property "in its present condition." Id. at 852-53.


author: STEPHENS, Justice.

text:
    CHARTER BUILDERS, Appellant, v. Ronald E. DURHAM and Commercial Drywall, Appellees.
    No. 05-83-00812-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 7, 1984.
    Rehearing Denied Dec. 10, 1985.

      John H. Martin, Jr., Thompson & Knight, Dallas, for appellant.
    Tom J. Stollenwerck, Sidney H. Davis, Jr., Touchstone, Bernays, Johnston, Beall & Smith, James K. Campbell, DeHay & Blanchard, Dallas, for appellees.
    Before STEPHENS, SPARLING and ROWE, JJ.
   STEPHENS, Justice.

Defendant/appellant, Charter Builders, appeals a judgment denying indemnity or contribution from third-party defendant, Commercial Drywall. Charter Builders contends that (1) the court erred in denying contribution; (2) the evidence was legally or factually insufficient to support the jury finding that the plaintiff, Durham, was an employee of Commercial Drywall; (3) the definition of “employee” in the jury charge was improper; and (4) Commercial Drywall contractually agreed to indemnify and hold harmless Charter Builders. We disagree and affirm.

Durham filed suit against Charter Builders, a general contractor, seeking recovery of damages for personal injuries sustained while working at a Charter Builders construction site. The Texas Employers’ Insurance Association (TEIA), the workers’ compensation carrier for subcontractors Commercial Drywall and Building Interiors, intervened to recoup payment of workers’ compensation and medical expenses. Pursuant to TEX.R.CIV.P. 38, Charter Builders impleaded Commercial Drywall, alleging that Commercial Drywall was negligent and praying for contribution or indemnity. Commercial Drywall generally denied the allegations and specifically alleged that it was Durham’s employer at the time of the occurrence, that it had in full force and effect a workers’ compensation insurance policy issued by the TEIA, that Durham had filed a compensation claim, and that Durham’s exclusive remedy against Commercial Drywall was under the Workers’ Compensation Act.

In answer to special issues, the jury found that the negligence of Durham, Charter Builders, and Commercial Drywall proximately caused the accident and apportioned the negligence as follows: 5% to Durham; 55% to Charter Builders; and 40% to Commercial Drywall. The jury additionally found that Durham was an employee of Commercial Drywall and that Charter Builders was guilty of gross negligence.

The judgment ordered Charter Builders to pay $532,001.66 to Durham and the TEIA, representing 55% of the compensatory damages found by the jury and 95% of the exemplary damages, and denied Charter Builders any recovery on its third-party claim against Commercial Drywall.

Contribution

Charter Builders urges that, as a joint tortfeasor, it is entitled to contribution from Commercial Drywall. We disagree. First, Charter Builders did not in its brief provide argument or authorities to support its right to contribution nor request contribution in its conclusion and prayer. Points of error asserted on appeal but not briefed are waived. Ozuna v. Dyer Fruit Box Manufacturing Co., 606 S.W.2d 334, 337 (Tex.Civ.App.—Tyler 1980, no writ); North Harris County Junior College District v. Fleetwood Construction Co., 604 S.W.2d 247, 255 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.). Furthermore, the “nature of the relief sought on appeal should be clearly stated.” TEX.R.CIV.P. 418(f).

Secondly, to obtain contribution, there must be (1) a common liability on the part of negligent tortfeasors; (2) a compulsory discharge of the liability; and (3) one party bearing an unequal portion of the common burden. TEX.REV.CIV.STAT. ANN. art. 2212 (Vernon 1971); Houston Lighting & Power Co. v. Allen & Coon Construction Co., 634 S.W.2d 875, 878 (Tex.App.—Beaumont 1982, no writ); Lubbock Manufacturing Co. v. International Harvester Co., 584 S.W.2d 908, 911 (Tex. Civ.App.—Dallas 1979, writ ref’d n.r.e.); Comment, Contribution Among Joint Tortfeasors, 44 Tex.L.Rev. 326, 330 (1965). The judgment ordered Charter Builders to pay only the portion of compensatory and exemplary damages that corresponded to its proportionate contribution to the injury. Since Charter Builders did not pay more than its proportionate share of the liability, it may not obtain contribution.

Thirdly, Charter Builders cannot obtain contribution for any portion of the exemplary damages award. The award was based on a finding against Charter Builders of gross negligence. Absent common liability, no right to contribution exists. See Employers Casualty Co. v. Transport Insurance Co., 444 S.W.2d 606, 609 (Tex.1969).

Finally, TEX.REV.CIV.STAT.ANN. art. 8306, § 3 (Vernon Supp.1984) grants a subscribing employer immunity from suit by an employee:

(a) The employees of a subscriber ... shall have no right of action against their employer ... for damages for personal injuries ... but such employees ... shall look for compensation solely to the [Texas Employers’ Insurance Association],
(d) If an action for damages on account of injury to or death of an employee of a subscriber is brought by such employee ... against a person other than the subscriber, as provided in Section 6a, Article 8307, Revised Civil Statutes of Texas, 1925, and if such action results in a judgment against such other person, ... the subscriber ... shall have no liability to reimburse or hold such other person harmless on such judgment or settlement, nor shall the subscriber ... have any tort or contract liability for damages to such other person because of such judgment or settlement, in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.

See Varela v. American Petrofina Co. of Texas, 658 S.W.2d 561 (Tex.1983); Standridge v. Warrior Constructors, Inc., 425 S.W.2d 472, 474-75 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ).

Since Commercial Drywall did not agree to pay Charter Builders its proportionate share of any common liability, Commercial Drywall is immune from suit for contribution if Durham was its employee. Charter Builders argues that the evidence factually and legally was insufficient to support the jury’s finding that Durham was an employee of Commercial Drywall.

Commercial Drywall and Charter Builders stipulated that Building Interiors and Commercial Drywall had workers’ compensation policies with the TEIA and that, “for bookkeeping purposes,” the TEIA processed Durham’s compensation claim under the workers’ compensation policy issued for the benefit of Building Interiors employees. The parties further stipulated that the Employer’s First Report of Injury filed with respect to Durham’s injuries lists Building Interiors as Durham’s employer and that Commercial Drywall did not file a report of injury.

Durham and the TEIA stipulated that on March 4, 1979, Durham sustained injuries in the course and scope of his employment “for Commercial Drywall and/or Building Interiors, Inc.,” that the TEIA provided workers’ compensation insurance “to Commercial Drywall and/or Building Interiors, Inc.,” that “Commercial Drywall and/or Building Interiors, Inc.,” filed on Durham’s behalf a workers’ compensation claim, and that the TEIA paid compensation and medical expenses.

The testimony as to Durham’s employment was conflicting. The evidence reveals that, at the time of his injury, Durham was on Building Interiors’ payroll and that he had a W-2 form from Building Interiors. Durham testified that he had no training in drywall work “prior to going to work for Commercial Drywall” and that Commercial Drywall directed him to work on the balcony from which he fell. The evidence further reflects that Building Interiors supplied labor to Commercial Drywall and that employees ultimately reported to a Commercial Drywall superintendent. We hold that the evidence was sufficient to support a finding that Durham was a Commercial Drywall employee. See Associated Indemnity Co. v. Hartford Accident & Indemnity Co., 524 S.W.2d 373, 376 (Tex.Civ.App.— Dallas 1975, no writ) (“[E]ven though an injured workman was carried on the payroll of a subscriber, and even though that subscriber may have paid insurance premiums on the workman’s wages, he is held not to be the employee of the subscriber for the purposes of the Workmen’s Compensation Act if he was temporarily subject to the right of control of another employer at the time of the injury.”); General Accident Fire & Life Assurance Corp. v. Callaway, 429 S.W.2d 548, 551 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ) (evidence sufficient to support finding of “dual employment” where evidence shows one employer filed first report of injury and paid employee’s wages, but another employer originally hired employee and controlled details of work); Employers Casualty Co. v. American Employers Insurance Co., 397 S.W.2d 292 (Tex.Civ.App.—Amarillo 1965, writ ref’d n.r.e.).

Charter Builders additionally objected to the following definition of “employee,” submitted in the court’s charge:

“Employee” means a person in the service of another with an understanding, express or implied, that such person has the right to direct and control the details of the work and not merely the result to be accomplished. Payment of wages or salary is not solely determinative of the existence of an employment relationship.

Charter Builders contends, initially, that the definition, by referring to “such person” instead of “such other person,” incorrectly combines definitions of “employee” and of “independent contractor." Charter Builders did not object at trial on this particular ground and, accordingly, has waived any error. TEX.R.CIV.P. 274 (“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.”); Southwestern Bell Telephone Co. v. Ramsey, 542 S.W.2d 466, 476 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.).

Charter Builders additionally objected that the last sentence of the definition constituted a comment on the weight of the evidence. We disagree. To constitute a comment on the weight of the evidence, an issue must be so worded as to indicate an opinion by the trial judge as to the verity of a fact. Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.). An incidental comment on the weight of the evidence which is properly part of an explanatory instruction or definition is not improper. TEX.R.CIV.P. 277; Norman v. First Bank & Trust, Bryan, 557 S.W.2d 797 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). Although the final sentence is not included in the definition of “employee” in the workers’ compensation statute, TEX.REV.CIV. STAT.ANN. art. 8309, § 1 (Vernon 1967), the language is not a misstatement of the law, see Employers Casualty Company, 397 S.W.2d at 295, and does not indicate the trial judge’s opinion on the issue. Accordingly, we hold that the sentence was not a comment on the weight of the evidence.

Indemnification

Although the workers’ compensation law precludes a suit by Durham against his employer, it does not preclude a third party’s indemnity claim against the employer pursuant to a written indemnity agreement. TEX.REV.CIV.STAT.ANN. art. 8306, § 3 (Vernon Supp.1984). To establish its right to indemnity, Charter Builders relies on the following contractual provisions:

11. INDEMNIFICATION AND INSURANCE

A. Subcontractor agrees to assume the work at his own risk and agrees further to save harmless and defend Owner and/or Contractor from any and all claims, and/or demands, and/or judgments, and/or costs of suit or defense, including attorneys’ fees and any expenses whether for personal injury or property damage, arising or alleged to have arisen, whether directly or indirectly, on account of or in connection with any work done by Subcontractor under this Subcontract or by any person, firm or corporation to whom any portion of the work is let or sublet by Subcontractor or resulting from the use by any of the above, of any materials, tools, scaffolding, ways, machinery or other property of Owner and/or Contractor.

12. COMPLIANCE WITH LAWS

Subcontractor agrees to comply, at his own expense, with all laws and regulations applicable to the work covered by this Contract, including but not limited to the Occupational Safety and Health Act of 1970 (Public Law 91-596); Construction Safety Act (Public Law 91-54); and Subcontractor agrees to save and hold harmless the Contractor from any and all liability and damages, fines, costs and attorneys fees incurred by Contractor on account of Subcontractor’s failure to comply with all laws and governmental regulations applicable to the work.

The jury found that Charter Builders’ was negligent in the following respects, proximately causing Durham’s injuries: erecting guardrails; providing a safe place to work; providing protective floor opening covers; requiring fulfillment by Commercial Drywall of compliance with OSHA regulations; and providing a safety program. The jury further found that Commercial Drywall’s was negligent in the following respects, proximately causing Durham’s injuries: erecting a guardrail; providing a safe place to work; providing protective floor opening covers; providing a safety program; and complying with all applicable laws and regulations.

We hold that paragraph 11A does not entitle Charter Builders to indemnity. “[A] contract of indemnity will not afford protection to the indemnitee against the consequences of his own negligence unless the contract clearly expresses such an obligation in unequivocal terms.” Fireman’s Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818, 822 (Tex.1972). See also Eastman Kodak Co. v. Exxon Corp., 603 S.W.2d 208, 211 (Tex. 1980); Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex. 1971); Amoco Production Co., Inc. v. Thompson, 657 S.W.2d 824, 828-29 (Tex.App.—Corpus Christi), rev’d on other grounds, 662 S.W.2d 951 (Tex.1983); McKesson Chemical Co. v. Phelps Dodge Corp., 638 S.W.2d 64, 66 (Tex.Civ.App.—Corpus Christi 1982, writ ref’d n.r.e.); Sun Oil Co. v. Massey, 594 S.W.2d 125, 134 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.); Atchison, Topeka & Santa Fe Railway Co. v. Smith, 563 S.W.2d 660, 667 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.).

We have, in fact, progressed toward the so-called “express negligence” rule as near as is judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the in-demnitee harmless from liability for his own negligence.... [B]road general statements of the indemnity obligation are not sufficient to protect an indemni-tee against his own negligence, and ... the only presently recognized exceptions are limited to (1) agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality; ... (2) agreements which fall within the peculiar circumstances of the indemnitor having complete supervision over the property and employees of the indemnitee in connection with the performance of the indemnitor’s contract; ... and (3) contracts in which there is an unequivocal provision that indemnitor will protect and indemnify the indemnitee from any and all liability by reason of injuries to indemnitor’s employees....

Fireman’s Fund, 490 S.W.2d at 822.

The Fireman’s Fund rule clearly applies to paragraph 11A. The contractual statement of indemnity is broad and general and does not expressly or impliedly put Charter Builders on notice that it may be liable, without fault, for a potentially large damage award. See Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631, 634 (Tex.1963).

Additionally, none of the exceptions applies. Commercial Drywall did not clearly undertake to indemnify Charter Builders for injuries due to premises defects or to the maintenance or operation of a specified instrumentality. See Mitchell’s, Inc. v. Friedman, 303 S.W.2d 775, 778 (Tex.1957); Atchison, Topeka & Santa Fe Railway Co., 563 S.W.2d at 667. Nor did Commercial Drywall have complete supervision over Charter Builders’ property and employees nor unequivocally agree to protect and indemnify Charter Builders from any and all liability by reason of injuries to Commercial Drywall employees. See Chevron Oil Co. v. E.D. Walton Construction Co., Inc., 517 F.2d 1119, 1122-23 (5th Cir. 1975); Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Tex.1963).

Furthermore, we do not agree that this case is controlled by Barnes v. Lone Star Steel Co., 642 F.2d 993 (5th Cir.1981). The Barnes court held the Fireman’s Fund rule inapplicable to a situation in which the indemnitee was negligent solely in failing to rectify the negligence of the indemnitor. In the instant case, the jury found Charter Builders liable for independent, non-derivative acts of negligence.

Finally, we hold that paragraph 12 was insufficient to invoke an obligation to indemnify. The jury found that Charter Builders was negligent in failing to require Commercial Drywall to comply with OSHA regulations and that Commercial Drywall failed to comply with all applicable laws and regulations. Yet Charter Builders was not held liable solely for derivative negligence but also for independent acts of negligence which concurred to cause Durham’s injuries.

Accordingly, we overrule all points of error and affirm.

      . "‘Employee’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written_" TEX.REV.CIV.STAT.ANN. art. 8309, § 1 (Vernon 1967).

      . "‘Subscriber’ shall mean any employer who has become a member of the association by paying the required premium_” TEX.REV. CIV.STAT.ANN. art. 8309, § 1 (Vernon 1967).


author: ALLEN, Justice. WHITHAM, Justice,

text:
    Ex parte Daniel Gaston SHOCKLEY, Sr., Petitioner.
    No. 05-84-01083-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 21, 1984.
    Discretionary Review Granted Feb. 6, 1985.

      John H. Hagler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald G. Davis, Asst. Dist. Atty., for appellee.
    Before GUITTARD, C.J., and ALLEN and WHITHAM, JJ.
   ALLEN, Justice.

Daniel Gaston Shockley, Sr. appeals from an order of the trial court increasing his appeal bond from $10,000 to $50,000. In two grounds of error, the petitioner contends: (1) he was denied due process because he was not given notice and a hearing on the issue of increased bond; and (2) there was no evidence to support the order increasing bond.

The petitioner was convicted on June 11, 1984, of burglary of a building. Punishment was assessed at ten years and one day in the Texas Department of Corrections. The trial court set bail pending appeal at $10,000. On August 14, 1984, the State filed a “Motion To 'Hold The Defendant Who Is On Appeal, Without Bond” pursuant to TEX.CODE CRIM.PROC. ANN. art. 44.04(c) (Vernon Supp.1984).

The hearing to revoke bail was held on August 28, 1984. The State’s sole witness was John Leathers, an investigator for the Dallas County District Attorney’s Office. Leathers testified, over vigorous hearsay objections, that he had spoken with a police officer in St. Louis, Missouri regarding pending charge in Missouri against the petitioner for attempted burglary and possession of burglary tools. Leathers also received a written investigation report pertaining to these charges. The alleged offenses in Missouri were committed on August 5, 1984. The defense called no witnesses.

At the conclusion of the evidence the State by oral motion requested that the court increase appellant’s bond to $250,-000.00 in the event the court should reject the State’s motion to hold appellant without bond. It is apparent that the hearsay testimony presented by the State would neither support its written motion nor its oral motion.

The appellant objected to a hearing on the State’s motion to increase bail because it was not in writing and no notice had been given to appellant. The court stated that it had statutory power to increase an appeal bond on its own motion and that it need not be in writing. The court then stated, “I’m going to increase the bond to $50,000.00.” We conclude that the court increased the appeal bond amount on its own motion.

We hold that the court has a statutory right to raise bond pursuant to its own motion. TEX.CODE CRIM.PROC. ANN. art. 44.04(d) (Vernon Supp.1984). Before exercising this authority granted by statute, the court is not required to give the defendant either notice or a hearing.

The court’s action in increasing appellant’s appeal bond on its own motion, by implication, overruled the State’s motion to deny appellant bond on appeal. Therefore, the nature of the evidence adduced by the State in support of its motion is immaterial for purposes of this appeal.

Further, the defendant has not been denied due process in that he is free either to file a motion to reduce bond under TEX. CODE CRIM.PROC.ANN. art. 44.04(d) (Vernon Supp.1984) or to file a writ of habeas corpus alleging excessive bail under TEX.CODE CRIM.PROC.ANN. art. 11.01 (Vernon 1977). Under either option, appellant will be granted his constitutional rights to notice and a hearing. Ex parte Williams, 630 S.W.2d 803, 804 (Tex.App.—San Antonio 1982, no writ).

The judgment entered by the trial court does not address the subject matter contained in the record before this court and, therefore, must be reformed to conform with the record. We reform the judgment to recite: (1) that the hearing was held on the State’s motion to deny bail pending appeal by the defendant Daniel Gaston Shockley, Sr.; (2) that after the hearing the State’s motion was denied; and (3) that the court, on its own motion, increased defendant Shockley’s bond pending appeal from $10,000.00 to $50,000.00.

As reformed we affirm the judgment of the trial court.

WHITHAM, Justice,

dissenting.

I respectfully dissent. I cannot agree that in the present case the trial court is permitted to increase the amount of bail on its own motion in the absence of evidence of probative value. In my view, the need for probative evidence to support an increase in the amount of bail did not disappear the moment that the trial court became a joint movant with the State to increase the amount of bail.

• TEX.CODE CRIM.PROC.ANN. art. 44.-04(d) (Vernon Supp.1984) provides “[ajfter conviction, either pending determination of any motion for new trial or pending final determination of the appeal, the court in which trial was had may increase or decrease the amount of bail, as it deems proper, either upon its own motion or the motion of the State or of the defendant.” In the present case we have before us the State’s oral motion to increase the amount of bail and the trial court’s motion to increase the amount of bail. Both motions were heard by the trial court in the same proceedings on the same day. The trial court’s motion was made after, to quote the majority, it became “apparent that the hearsay testimony presented by the State would neither support its written motion nor its oral motion.” I cannot agree with the majority’s holding that article 44.04(d) permits the trial court to inject itself into a hearing being held before it on either a State’s motion or a defendant’s motion as a joint movant seeking similar relief to that sought by State or defendant. For a trial court to enter a matter being heard before it on the side of any party to the controversy is not authorized by article 44.04(d).

The majority correctly recognizes that as to the State’s motion to increase the amount of bail evidence was necessary to support the State’s motion and that in the present case “[i]t is apparent that the hearsay testimony presented by the State would neither support its written motion nor its oral motion.” Hearsay testimony admitted over objection has no probative value in a hearing conducted under article 44.04(d). See Burroughs v. State, 611 S.W.2d 106, 107 (Tex.Crim.App.1981). The State concedes as much for it tells us in its brief that “[t]he State acknowledges that hearsay evidence has no probative value.” I cannot agree, therefore, with the majority’s holding that when the amount of bail is increased on the court’s own motion that no evidence whatsoever is required. A motion is but the device to bring a matter before a court. Merely because a motion is the court’s motion does not carry with it the evidence necessary to support granting the motion.

In the present case the trial court and the majority of this court have recognized that the State failed to prove its case on its oral motion to increase the amount of bail. The trial court, however, not to be frustrated by mere rules of evidence in its desire to increase bail, used the “upon its own motion” provisions of article 44.04(d) to come to the aid of the State. To my mind, if probative evidence is required to support the State’s motion to increase bail in the present case, then probative evidence is required to support the trial court’s “back up motion” to increase bail in the present case. If the State or defendant must adduce admissible evidence on a motion to increase or decrease the amount of bail, then admissible evidence should be required on the trial court’s joint motion with one of the parties when the trial court enters the matter being heard before it on the side of one of the parties.

It is undisputed that there was no evidence of probative value to support the order increasing the amount of petitioner’s bail on the trial court’s motion. Accordingly, I would sustain petitioner’s second ground of error and reverse the order of the trial court increasing petitioner’s appeal bond from $10,000 to $50,000 and remand with instructions that the bond be set again at $10,000. In view of the disposition I would make of the present case, I do not reach appellant’s first ground of error asserting a denial of procedural due process.


author: GUITTARD, Chief Justice.

text:
    SUPERIOR TRANS-MED, INC., Relator, v. Honorable Judge Gary HALL, Judge of the 68th Judicial District Court, Respondent.
    No. 05-84-01149-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 28, 1984.

      G. Leroy Street, Daniel P. Donovan, Geary, Stahl & Spencer, Dallas, for relator.
    Werner A. Powers, Daniel E. Westbrook, Haynes & Boone, Dallas, for respondent.
    Before GUITTARD, C.J., and VANCE and ALLEN, JJ.
   GUITTARD, Chief Justice.

Superior Trans-Med, Inc., relator, petitions this court for a writ of mandamus directing Judge Gary Hall of the 68th District Court to vacate his order compelling relator to answer requests for admissions. The writ is denied and the stay order entered pending the hearing of the writ is vacated.

Superior Trans-Med, Inc. is one of several defendants in a suit brought by Aero-trans Corporation and Amtech Group, Ltd., (collectively referred to as Aerotrans). Aerotrans sued the State of California for breach of a contract for the manufacture and sale to the State of a large number of buses. Aerotrans alleged that Superior acted as its agent in this transaction. Alternatively, Aerotrans alleged that if Superior did not act as its agent, then Superior contracted to purchase the vehicles for resale and, therefore, is liable for the purchase price. Superior has answered, pleading that it acted solely as agent for Aero-trans, and alternatively, if it did act as purchaser, Aerotrans is not entitled to damages because the buses did not conform to the contract and, for that reason, acceptance of all but twelve of them was properly revoked.

Aerotrans then filed a series of requests for admissions under rule 169 of the Texas Rules of Civil Procedure. Among these were the following:

1. That Defendant Superior Trans-Med, Inc. agreed to purchase the vehicles that are the subject of this lawsuit.
2. That Defendant Superior Trans-Med, Inc. never agreed to purchase the vehicles that are the subject of this lawsuit.
3. That Defendant Superior Trans-Med, Inc. never acted as a broker or agent on behalf of Plaintiff Aerotrans Corporation with respect to the sale of the vehicles that are the subject of this lawsuit.
4.That Defendant Superior Trans-Med, Inc. only acted as a broker or agent on behalf of Plaintiff Aerotrans Corporation with respect to the vehicles that are the subject of this lawsuit.

Superior denied the third of these requests, but, with respect to each of the others, answered that it “cannot truthfully admit or deny the matter ... for the reason that the matter is genuinely in issue in this cause.”

Aerotrans filed a motion to compel answers to its requests, which the respondent Judge Hall granted. Respondent’s order directs Superior to either admit or deny the requests and that it “shall not qualify its response in any form or fashion.”

This order prompted the present petition for mandamus. Superior contends that it cannot properly be ordered to admit or deny the requests without qualification in view of the provision of rule 169 that “when good faith requires that a party qualify his answer or deny only a part of the matter ... he shall specify so much of it as is true and qualify or deny the remainder.” Superior argues further that it has no adequate remedy by appeal because the effect of the judge’s order will be to deprive it of its alternative defense of revocation of acceptance of the buses, which it would have no standing to raise if it admits that it was an agent rather than a purchaser or if the request to admit its agency is deemed admitted by its failure to answer without qualification.

We conclude that in this situation an appellate court should not interfere with the conduct of the case by the trial judge. If Superior is improperly deprived of an alternative defense, the judge’s ruling may be reversed on appeal and the case may be remanded for a new trial so that the defense may be properly presented, just as if this pleaded defense had been improperly struck on exceptions. It would be an intolerable interference with the dispatch of litigation in the trial courts and a serious obstacle to prompt disposition of appeals in other cases if discovery proceedings were subject to pre-trial review by mandamus in a case like the present.

We recognize that mandamus is a proper remedy in cases of denial of a privilege or other compelling circumstance where compliance with a trial judge’s unauthorized discovery order cannot be rectified by reversal and new trial. See General Motors Corp. v. Lawrence, 651 S.W.2d 732, 733-34 (Tex.1983) (production of great mass of irrelevant material); Commercial Travelers Life Ins. Co. v. Spears, 484 S.W.2d 577, 579 (Tex.1972) (irrelevant information permitting solicitation of persons who would not be proper parties to law suit); Russell v. Young, 452 S.W.2d 434, 436-37 (Tex.1970) (production of voluminous records of medical witness sought for impeachment only); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 439-40 (1959) (production of income tax returns without in-camera inspection to determine relevancy); Menton v. Lattimore, 667 S.W.2d 335, 339 (Tex.App.—Fort Worth 1984, no writ) (work product of attorney). Superior has cited no authority supporting issuance of a writ of mandamus with respect to a discovery order in circumstances comparable to those here. We conclude that the order in question is one within the “thicket” of incidental pre-trial rulings which appellate courts cannot enter without serious disruption of the orderly process of trial and appeals. See Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970).

Accordingly, we do not reach the questions of whether the requests of Aerotrans were proper, whether Superior could properly refuse to admit them because they were “matters genuinely in issue,” or whether the trial court’s order was authorized by rule 215(4) of the Texas Rules of Civil Procedure, which specifies the sanctions available for failure to answer requests for admission under rule 169. We hold only that mandamus is not a proper remedy for review of that order.

Writ of mandamus denied.


text:
    Milton BARCLAY, Appellant, v. W. Lawrence CAMPBELL, M.D., Appellee.
    No. 05-83-00981-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 29, 1984.
    Rehearing Denied Jan. 4, 1985.

      Paula Fisette, Law Offices of Windle Turley, P.C., Dallas, for appellant.
    Maureen Murry, Thompson & Knight, Dallas, for appellee.
    Before GUITTARD, C.J., and STEPHENS and ROWE, JJ.

      . Justice Rowe participated in this opinion although he resigned from the court before the opinion was issued. Issuance date, after his resignation, is due to the inter-court circulation requirements of this court’s local rules.

   STEPHENS, Justice.

Milton Barclay sued W. Lawrence Campbell, M.D., for medical malpractice, alleging that the doctor negligently prescribed certain neuroleptic medications in connection with Barclay’s psychiatric treatment, and that the doctor negligently failed to disclose to Barclay certain risks associated with the prescribed medications. At the conclusion of Barclay’s case, the trial court granted Dr. Campbell’s motion for a partial directed verdict, relating to the issue of informed consent, and submitted the case to the jury on the remaining negligence issues. In response to the jury’s answers to special issues, finding that Dr. Campbell was not negligent in his treatment of Barclay, the trial court entered a take-nothing judgment against Barclay.

On appeal, Barclay, in a single point of error, contends that the trial court erred by instructing a verdict in favor of Dr. Campbell on the issue of informed consent. We disagree and, accordingly, we affirm the judgment of the trial court.

Dr. Campbell started treating Barclay in January of 1978 for mental illness which soon thereafter required Barclay’s hospitalization. During the course of treatment, Dr. Campbell prescribed certain drugs for Barclay, which were known to sometimes produce a condition known as tardive dys-kinesia. The evidence is undisputed that Dr. Campbell failed to warn Barclay of the risks associated with the medication, and Barclay now suffers from tardive dyskine-sia.

Our decision in this case is governed by the Medical Liability and Insurance Improvement Aet, TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1984), which was enacted in 1977. This Act changed the common-law rule concerning the physician’s duty of disclosure, based on the standards of the “reasonable medical practitioner,” as declared in Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967), and established a panel of experts to determine which risks related to medical care should be disclosed. Section 6.07(a) of the Act creates a rebut-table presumption of negligence when the physician has failed to disclose one of the risks which the panel has listed among those to be disclosed. Section 6.07(b) provides that if the panel has made no determination concerning the disclosure of the risk attendant to the medical procedure in question, the physician is under the “duty otherwise imposed by law.” This “duty otherwise imposed by law” was interpreted in Peterson v. Shields, 652 S.W.2d 929 (Tex.1983) as the duty imposed by section 6.02: “to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.”

Peterson was a case like the present in which the risk in question was not one of those listed by the panel. The court pointed out that medical testimony was necessary to determine the materiality of the risk because the case was not one of those in which the materiality of the risk had already been determined by the panel. Consequently, the court said that the plaintiff was required to present expert testimony to prove that the condition complained of was a “risk inherent in the medical procedure performed” and also that the expert “should testify as to all other facts concerning the risk which show that knowledge of the risk could influence a reasonable person in making a decision to consent to the procedure.” In view of medical testimony in Peterson that the operation in question involved a “definite risk” to a certain nerve, the court held that a jury issue was presented covering the doctor’s negligence in failing to disclose this risk.

We do not interpret the opinion in Peterson as establishing that a jury question is presented whenever there is expert testimony to the effect that the condition complained of is a risk “inherent” in the procedure in the sense that there is some statistical probability, however small, that the procedure may be followed by the condition of which complaint is made. In other contexts an “inherently dangerous” activity is considered to be one accompanied by an unusual or extraordinary risk. See 25A C.J.S. Dangerous at 468-69 (1966); Gessell v. Traweek, 628 S.W.2d 479 (Tex.App.—Texarkana 1982, writ ref’d n.r.e.) (work “inherently dangerous to the public”). Although the term “risk” in article 4590i may not connote quite such an unusual or extraordinary danger, we conclude that the “inherent risk” mentioned in Peterson must be more than negligible or theoretical when viewed prospectively at the time the medical procedure is recommended. As we read Peterson, expert opinion is required to establish the materiality of the risk if it is not one of those listed by the panel.

In the present case we hold that there is no expert testimony that the risk is material in the sense of one that could have influenced a reasonable person in consenting to the treatment. Dr. Campbell testified that appellant, because of his age group, had an extremely low risk for tar-dive dyskinesia, less than one-half of one percent, which he considered to be a very small risk. Dr. Jankovic, a neurologist, with a special interest in tardive dyskinesia, testified that either of the drugs administered by appellee could cause tardive dys-kinesia, yet the risk was small. Dr. Robert Smith testified that he could not say for certain that appellant had tardive dyskine-sia, and that it was unusual for dosages as given by appellee to cause tardive dyskine-sia in such a short period of time. Dr. Samuel Neely, a psychiatrist, testified that the risk of tardive dyskinesia in a patient of appellant’s age from the drugs in question is extremely small.

Moreover, the undisputed evidence here establishes that Barclay did not have the reactions of a reasonable person. All the medical experts, including Dr. Jankovic, who testified for plaintiff, were of the opinion that Barclay was suffering from a condition requiring antipsychotic medication. Dr. Neely testified that it would be poor psychiatric practice to tell a patient like Barclay of the risk of side effects like tardive dyskinesia because it would keep him from taking the drugs. Defendant, Dr. Campbell, also testified that telling Barclay of possible side effects would have made it more difficult for him to take the medication because such disclosure might make him uncooperative. Dr. Jankovic, who also treated plaintiff, prescribed anti-psychotic drugs which he admitted were associated with certain side effects, but, according to plaintiff, Dr. Jankovic never warned him about these risks.

Thus the undisputed expert testimony shows that the disclosure, which plaintiff alleges Dr. Campbell should have made, was not medically feasible because it would probably have caused him to refuse the treatment, no matter how minimal the risk and how great the countervailing risk of refusing the medication. On this point, the legislative intent is indicated by section 6.07(a)(2), which provides that even in cases where the defendant is presumed to have been negligent in failing to disclose a risk listed by the panel as one requiring disclosure, “failure to disclose may be found not to be negligent if there was an emergency or if for some other reason it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.” If the risk is not one of those listed, and, therefore, falls under subdivision (b) rather than subdivision (a) of section 6.07, the defendant physician should be under no greater duty and the plaintiff should have no lesser burden, than if the risk were one of those listed. Testimony that the risk is “inherent” in the procedure should have no greater effect than to raise the same presumption, which may be rebutted by evidence that it was “not medically feasible” to make the disclosure that otherwise would be required.

As section 6.02 expressly provides, “the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks and hazards that could have influenced a reasonable person in making a decision to give or withhold consent.” (Emphasis added.) We hold that where the undisputed medical evidence establishes that “it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence,” any presumption of negligence is rebutted and no issue of fact of the defendant’s negligence is raised. It follows that under the undisputed evidence here, any such presumption was rebutted, and thus the trial court was correct in refusing to submit the consent issue to the jury.

The judgment of the trial court is affirmed.