*1 ap- direct tnent. The Commission did not things in
pellant this to do of these availability did limit her
case. She complied procedural all re-
work and
quirements to benefits. entitle my
In view the the trial
court I unable to should reversed. am judgment,
find a for rendition of the basis question has not been I briefed.
would therefore reverse and remand trial
case to the coutt.
Enrique ux., Appellants, H. MENDEZ et HALL,
The KNIGHTS OF COLUMBUS Appellee.
No. 14687. Appeals Civil
Court Texas.
San Antonio.
July *2 disputed
file sufficient raise triable were issues of fact. summary
It is that in a settled judgment the burden case is movant prove genuine that no there is issue of fact, a as and all doubts the material genuine existence of a to a ma issue as against terial fact must be resolved the party moving judgment. summary for a Penn, Gulbenkian v. Tex. 252 S.W. 2d that trial 929. Defendant asserts the court did not err in granting its motion summary because, for as a mat law, pro ter of of a no evidence was plaintiff occupied bative value that the invitee; an injured statute of that she was licensee, occupying while a the status of only and duty that the defendant owed plaintiff injure duty was the not to her willfully, wantonly, through gross negli gence. contend Men Plaintiffs that Anita premises and, dez an in was invitee on the alternative, that even if was a mere she licensee, injured was as a result she a dangerous existing of condition on premises, part and there a on Bonilla, L. DePena, Bonilla, Read & of defendant to warn make the Christi, for Zimmerman, Corpus Taylor condition safe. appellants. It undisputed is that on the of occasion Redford, N.W. Wool- Lewright, Dyer & accident, defendant was a sponsoring Christi, appellee. Corpus sey, dance; New Year’s Eve that admittance to such dance of basis ticket KLINGEMAN, purchases, and that Anita Mendez did not Justice. purchase contend, a ticket. how- Plaintiffs judg- summary appeal is an from This ever, that it custom dance-band defendant, Knights of granted ment industry that of members of the wives case. slip fall Hall, in and Columbus charge orchestra are free of admitted En- the wife Mendez is Anita Plaintiff dances where their are playing; husbands Ram Mendez, H. member rique night on the of the accident defendant been em- Orchestra which Rodriguez admitted Anita Mendez and some other dance Year’s Eve play New ployed wives of the orchestra members into the by the defendant sponsored being supplied dance hall and them with a table Falfur- Hall near Knights Columbus chairs, and and that there awas mutual Mendez, rias, County, Anita Texas. Brooks and benefit advantage having Anita from the bandstand walking towards while Mendez and wives other band members in said had been seated table where she in attendance on occasion. Oscar Hin- injured hall, fell slipped and ojosa, Knights a member of the of Colum- a result thereof. bus, was the in charge chairman pro- point curing error an for such sole orchestra Plaintiffs’ dance. A on and affidavits written pleadings, depositions contract was entered into between Rodriguez Knights Ram of Col- that no him one ever told that if the wives umbus, Rodriguez agreed to wherein were Ram not admitted orchestra would (8 perform pieces) play. have his full orchestra p. night from 9 m. to 1 a. of such m. Knights Columbus Hall is a dance, agreed Knights Columbus levels, split-level the highest hall with four *3 compensate in an
to amount said orchestra being end located at the north where the not to exceed $500.00. located, carpeted; bar is and level is which level, the dance Hinojosa area is lowest with Oscar that Decem- on testified on 31, 1966, stage the orchestra at the rear ber the Ram for members of Rodri- level; are by this there two intermediate guez bus and ad- orchestra arrived were patrons levels and tables for are by stage chairs mitted him to entrance such and three hall; located in areas. Anita the first that thereafter he walked around the Mendez and three wives were seat- doing other hall to front entrance and while level, ed where the they highest on the bar so encountered ladies several who said that were was located. testified when she of the members and She wives orchestra p. entered the 8:45 m. the asked whether hall about hall he had a reservation for them; not, brightly lighted, was but the lights that he he did were told them that dancing dimmed and dim he did not for the were at coming, know were and they accident; shortly time that after completely that the dance was sold out and midnight, played anyone; Lang there was when the band Auld no more for that room wives, herself, Syne including after some of the per- some discussion ladies were stage mitted to come in started towards the where the the hall and were seated or- playing, greet chestra had order at table near the in the been in to bar end rear husbands, proceed- hall. He their while only that the and that so testified reason they ing in slipped were come she or fell an area allowed it where to was that located; step that night, was cold down was she had and that he accommodated before; get them to been in such hall that she them out never cold. any dancing had that night not done and Anita Mendez that testified it cus- was before; had not been the floor on that tomary for wives to of orchestra members she step down, was not aware al- admitted charge, be into without dances and though the floor was obviously dance on while there was some discussion as their a lower level. admitted, being they that were admitted objection. Enrique testimony just without not clear as H. Mendez fell, they paid testified that their testified never to have how Mrs. Mendez she down, played, step wives admitted they any to dances where she did not see that she by walking along affidavit stated that in the was and all just and event sudden wife and of band something fell, his other wives members she twisted her ankle or not that she step were admitted would not have re- missed the or something. he occasion, Hinojosa played this testified that he did not see mained on knowledge fall but it area that based on his of the was in the of one sub- of the downs; step neither ject would band members and Mrs. Mendez’s other husband testified that he not see have remained. Mendez testified that he did the fall but it played Rodriguez’s step was in the down. Ram orchestra area of There only couple testimony is no the exact Hinojosa weeks. as to nature any step pre- that he of the Anita testified not aware of down where Mendez custom, sumably fell, any such there was no such custom nor is evidence of hall; any this in the concealed negotiations dangerous dance condition. at Ram Rodriguez custom not such mentioned, and that the contract did not principal question for our free; that the provide wives be admitted determination is whether time of the
32 invitee on the
accident Mrs. Mendez an who had been premises invited premises by a mere licensee. If she was by having authority or the owner one or it de premises on the an invitee extend an invitation to enter same. ordinary care He premises by fendant’s to exercise is on the sufferance and not premises in a keep by safe any virtue of business or contractual injured, with, enticement, condition so that she would not relations or allure but, hand, if ment, the other Mrs. Mendez was being or inducement to enter held premises on the as a licensee the merely by occupant, out himto the owner but or only duty the her was merely defendant owed in his own interest his wantonly, through injure willfully, benefits, purposes, own convenience or gross Weingart pleasure. negligence. Ry. Carlisle Ft. & C. v. Worth D. Co. J. en, Inc., Mills, 137 S.W.2d 1073 (Tex.Civ.App.— Tex. S.W.2d *4 1940, licensee It has that the (1941). cor.). been stated judgmt. Amarillo writ dism’d them and premises takes the he finds as permission, express or A whether duty that the him to main owner no owes implied, or not an invitation to enter is tain in a condition. them safe relationship higher use establishes no Galveston, Ry. H. A. v. Matz Co. & S. a than of mere licensor and licensee. dorf, 42, (1908); 102 Tex. 112 1036 S.W. Wimsatt, 374, App.D.C. Branan v. 298 54 Rail Chekanski v. New Orleans Texas & * e * F. principl appears “The 833. Co., road (Tex.Civ.App.— 306 935 S.W.2d to is be invitation inferred where 1957, e.); ref’d r. Meeks Houston writ n. a mutual ad is common interest or Cowart, (Tex.Civ.App.— v. 84 845 S.W.2d inferred vantage, while a license is where 36, 1935, San affirmed 131 Tex. Antonio object pleasure the benefit is the mere or 111 1105). S.W.2d v. Louis person using of the it.” Bennett 577, Co., Ry. ville N. 102 U.S. 584- & determining per In whether 585, L.Ed. Olivier 26 See also upon son or a licensee the is an invitee Snowden, (Tex.Sup.1968). 545 S.W.2d premises is general of the test another person the the time injured whether opinion It is that the evidence our injury relations present of the business that Anita a matter law establishes as of the premises with the owner which of upon premises of defend Mendez mutual aid presence would render his ant her benefit and pleasure own or both, presence on the or whether his not rela any with business connection ,r convenience, premises was his own render tions with defendant which would with others than owner business both; presence a mutual benefit premises. of the In the some absence licensee that Mrs. Mendez a mere mutual bene which inures to the relation premises, the record and that under owner, two, fit that of or to guilty in this case defendant not implied the in no be invitation can violating any her. owed regarded as mere jured person must 36, Meeks, 131 Tex. licensee. Cowart v. judgment The trial court is af- 1105; Houston & Kruse v. S.W.2d firmed. Co., T. 623 (Tex.Civ.App.— C. R. 253 S.W. A licensee is writ). Galveston no CADENA, (dissenting). Justice use of
person entrance whose explore attempting the nice by Without permitted premises is of another made between an ties of distinction he under circumstances owner such “licensee,” would re “invitee” I any ex trespasser but is without not court therefore, of the below. verse He, press implied invitation. summary pleadings, together lying be position occupies a somewhere as the ma judgment "evidence” outlined that of one trespasser and tween that of a jority opinion, clearly the existence disclose
of a material fact issue to whether or hid plaintiff’s injury by caused defect, occupier
den known to the
premises. outcast, legal Even that licensee,”
“mere is entitled be warned
of the existence of such a condition. Gon Broussard,
zalez v.
(Tex.
n. r. land “is under
an obligation to disclose to the licensee dangerous condition concealed
premises” possessor of which the has
knowledge. Prosser, Torts, 60, p. 390 §
(3rd 1964). ed.
PACIFIC EMPLOYERS INDEMNITY COMPANY, Appellant, AGUIRRE, widow, al.,
Hellen et Appellees.
No. 4726. Appeals
Court of Civil of Texas.
Waco.
Aug. 1, 1968.
Rehearing Aug. 29, Denied