*1 Palm plea privilege Charles F. Harris suit in authority maintain the for part over- Palm affirmed. That sus- and H. is is sufficient to County. The evidence J. Re- ruling plea privilege Palms of Texas findings that the presumed tain the Company reversed is Harris serve Life Insurance Adams in perpetrated a fraud cannot thereby. and, since it evident damaged County and he main- right another trial establish gist Appellants contend corporation in against tain the suit said damages corpo- cause of action cause, Adams’ Cоunty, Harris to said fraud, if of the contract ration, breach is ordered district transferred alleged merely any, incidental. Adams County. court of Bexar damages for breach of count a suit for sought re in another the contract and and re fraudulent contract alleged
scind the bonds, The con value. or their
cover the is overruled.
tention excluding
The did err by appellants’ bill of the evidence disclosed al., Appellants, Ed M. SHAPIRO et com exceptions it was an offer because promise. v. EDWARDS, Appellee. Clara that Texas Reserve is evident No. 13436. Company did not commit
Life Insurance County. H. on Adams Harris fraud J. Appeals Civil Court of of Texas. agent when the fraud was not its Palm was Houston. by him. Its alleged been committed to have Nov. 1959. that, after only with the case is connection fraud, any, Great perpetration of the if Rehearing Jan. Denied 1960. Life Insurance Com Health and American Motion Overruled Jan. Second Reserve pany merged with it Texas Company its assets Life Insurance received liable its debts. It commit became County. person Harris The
ted no fraud in committed the fraud in Har
alleged to have agent. not then its
ris County
requisite werе not established venue facts contrary, it, plaintiffs showed
against Therefore, not exist. venue facts did
said County maintained cannot be Harris exception presence 7. The under
against company in suit is not essential said may obtain full relief Adams in order therefore, Palms, the suit cannot
against the County against in Harris maintained Company Life Insurance Reserve
Texas necessary party theory that it is a de exception 29a. The virtue of
fendant facts were established venue
essential Com Reserve Life Insurance Texas
against points are Palms’ over All of the
pany. overruling
ruled. *2 Maynard, Martin,
Paul Houston, W. E. appellants. Road Butler, Binion, known as 4208 Almeda Alexander, Houston, Moeller and Tоm building. counsel, occupied Cook, Houston, of &Rice *3 deed, property is de- appellants’ their appellee. feet fronting on scribed as a tract 47.44 is not It the west of Almeda Road. side WERLEIN, Justice. question in the sidewalk shown whether appel- Edwards, sued Appellee, City Clara Houston upon the of on land which personal damages in- for purposes lants to or recover had an easement for street of by a result juries her as special sustained appellants’ located lаnd. No on appel- respect front of falling the sidewalk in requested on given issue was tripped alleged building. she She issue, lants’ there- such matter. omitted Such on of concrete edge fell a raised fore, by over the be deemed found will entryway appellant premises in the the of support judg- in the such manner lessee, operated G. A. by bakery their to a ment, other especially of answers to in view upon trial, appellee, the Moeller. Prior to assumed, objection issues whiсh without as to $1,250, a nonsuit payment took duty of part the of appellants, of the to sue a covenant and executed appellants Moeller maintaining the sidewalk was Appellants indemnity agreement. an City. Texas Rules not on the Rule against third-party action thereafter a of Civil Procedure. indemnity. The Trial Court Moeller for the bakery The from entrance to the ap- appellee against for judgment entered the side of Almeda Road. sidewalk on West pellants the sum jury the in verdict pair entranceway was a At the ap- $31,000, and further decreed the swung out over screen doors which pellants nothing against Moeller take open. pulled such Each of sidewalk when indemnity. Ap- third-party action for their approximately in width. doors was 1feet pellants in appeal only from the pictures. number of introduced appellee. favor Appel- Her No. marked Exhibit also Appellants Point assert: their first in exhibits, 2,” “Exhibit and other lants’ No. submitting to the “The Court erred in in indicate that thе sidewalk was line any negligence as jury issue of running front the sidewalk maintenance of the manner of places of business on the west stores and the evidence in- the reason that it was used side of Almeda Road and that negligence, sufficient such to establish by public generally. The exhibits indi- suffi- condition thereof’ ‘defective were a little wider cate screen doors liability upon predicate any cient which to pictures testimony and feet. The than 1½ appellants injuries sus- that there was an uneven- introduced show there- appellee’s fall tained as a result of expansion joint in ness at the the sidewalk on.” place appellee at the in front of store by fell, evidently settling caused quite assignment is not While cement, raising or the section slab of clear, assign it as an treating we are section, thereby creating adjoining rather ment no evidence appellee point, at testi- offset such sufficiency going than one i/ n height. inch was from to of an fied ¼ support findings. It jury evidence to pictures of Appellee introduced such off- appellants’ brief. so treated set, cigarettes placed by it. showing height appears that offset is about shows evidence cigarette slightly of a diameter building on the west side of Almeda place allegedly where Houston, and that more. City in the Road “X” stumped toe is marked question Plain- is flush with the sidewalk in 1, 3 operated Although Exhibits Nos. and 4. bakery by tiff’s building. The mer, immediately in front of the en- is not but went as week often as twice a bakery, admittеd winter; trance to the in the usually she went concrete door; the sections of concrete or north street are two adjacent abutting' immediately doors, blocks being the of one two width Moeller’s Almeda entrance to Road door bakery; swings into the entryway to Bakery approached formed she door, one of bakery However, the ex- bakery. out, screen avoid swung and to doors entry- clearly hibits being show that the so-called door, dodged struck she *4 way merely was tripрed a of the sidewalk sidewalk, raised over the the or public used generally. portion the sidewalk; was that she trying it dodge the door because screen spot testified that the where she made a sudden motion forward. by appellee’s fell is shown Exhibits Nos. deposition In her testified: she cigarette point 3 and At such a was placed in order to show the extent people go- “There awas number of unevenness or offset in She the sidewalk. ing door, in and out of the and also testified that be- she had left school sidewalk, was it was on shadows the gone tween 3:30 and and 4:00 o’clock had here, dark here a shadow there was Weingarten’s, bakery, north then and light and the wasn’t on.” past had bakery walked Post- “Q. northerly proceeded picture office. She then Didn’t this show a was was a sun direction for the shadow? A. The along same sidewalk purpose bakery shining. going into the and buying some cookies. She further testi- “Q. down? On Was the sun A. fied, “Well, tripped I and obstruction December 15th? might per- fell you over was one call pendicular; people “Q. I don’t think would get- Yes. A. was I think it it, December; open normally ting dark, it see was not wide or as I remember in horizontal, just I cloudy, day and didn’t see it.” She It is at dark and this and cap had paving afternoon, not seen the before five I o’clock in the would tripped before, say and it ‘yes’.” had and had trip anyone never it seen her before testimony It is evident that her con- accident; raining that it was and she respect tradictory with to whether the sun presumed shining brightly; the sun was shining and also as to the time thought enough that she light it was so trial, stipulated during accident. It was any difficulty seeing that she didn’t have however, that the official records pavement the sidewalk she Hospital appellee showed that Methodist along; that walked would be sun hospital entered the at 4:00 o’clock follow- back shining building ing the accident. part, rather than on the front since the building why east. faces asked she witness, When Appellee’s Hatton, Rose Marie crack, testified, “Well, not see thе she did that testified she familiar the lo- there, got somebody I just as came out bakery; that cation she was 4 or 5 open swung and it wide my of the door Edwards, in back feet and saw Miss face, dodging trip- the door stump and and Edwards her toe on the Miss break crack, ping fall; I fell.” She testified concrete walk in the she had imagined patroniz- she had been she back and forth in front bakery been bakery years; ing the for about five many times and had never seen the crack ' week, before; sometimes went once a some- she that was not an obvious crack all, see; not at times sometimes block, twice it was a break in a week; concrete, that she was not higher here in the sum- the concrete was rather Ini that. anything like dangerous, to be have horizontal, you would than testimony, testified appellee to see had for it actually right look on it and “Oh,, said, when she Mrs. Moeller came out
it; came out Moeller Mrs. have anything spot that crack should danger is a accident; recall didn’t she bеen fixed.” gone said; that she Mrs. Moeller say 5 times bakery average of on an deposition testified In her also year; week, probably times as follows: the lit- see say that she she didn’t couldn’t really street, sidewalk, “Q. protrusion you tle As walked down course, seeing forth. you difficulty, walking back had no never it in noticed right. that crack? A. That is trial. prior deposition, In her taken “Q. door bigger the screen the crack Mrs. Was Moeller testified maybe a your according smaller best rec- swing out on the sidewalk аny more half; ollections than it is demonstrated there' foot and a she didn’t *5 pictures they that; the differ- in than had noticed those ? A. When that she blocks, picked some up that me and ent levels cement and I around turned others; mainly you it, just higher looked at it looked like were than about place little it enter there is a does now. It was about a fourth the west side door inch a third an inch about a a or so from the or raised.” foot and half side; raising of the to the left-hand a little Appellee that if had! further testified she concrete; any notice it gave that never she her, dodged it have hit door would December but before accident on further, you, tripped I “I told because was the accident she noticed there that’s, caught my I toe in the crack and space a little there. exactly way happened; be- it I don’t tripped I if lieve would have I had not testified, if he when asked Mr. Moeller dodging been the door.” was She asked in side- familiar with the defect was why crack, testifiеd, she didn’t see the bakery in the in front shown walk I dodging “Because was that I had door. store, “I in front of the cement blocks there; walking been I didn’t see it. It was. defect”; that he exactly call it a wouldn’t crack,. crack, open a if was a vertical it wide cap cement was familiar with the opened. think it when the I I would see door blocks; long that it had been a time dodged I door and I fell.” long; that but he didn’t know how he had doors had been there since screen first Point We there, years; about that the doors been Appellants duly re should be sustained. open just spring, flying had a back quested the a verdict instruct people used them. forth as favor, they their also filed motion at the Moeller trial testified that Mrs. to enter non ob- for the Court fall, appellee did not see knew of she veredicto. stante it; prior appellee such time neither that property pointed owners anyone else had ever out the
nor duty to no furnish a under the sidewalk in front question little unevenness public for the use а fre- bakery; perfect was public who. for those bakery or up to the generally customer quent bakery to enter the intending fell; prior to the time Miss be might she time building. Appel anyone part of fell, did not know of she some Edwards reasonably have foreseen could complaining about condition of lants ever question condition in sidewalk; say- anticipated remember that she did not anyone who. likely harm appellee in that that bad would substance ing to man cam No using the sidewalk. be lоng might time been condition against events which fifth expected guard lady be sixth who has fallen here.” anticipated, or which The reasonably cannot be held such testimony con- common- unlikely risk would stituted are so some only evidence not of notice ly the exercise disregarded by persons Weingarten, Inc. but as well negli- J. gence case the ordinary the instant care. permitting such condition to exist. cor- of one question consisted condition in In the instant case there is no evidence being from to ner of a cement block ¼ anyone many years that the adjoining block of an higher inch than slight offset had existed had ever fallen shows expansion joint. at the The evidence stumped stumbled or prior a toe ap- long for a had existed such condition pellee’s undisputed accident. The evidence appellee, condition, according to time. The is that the offset was no more than t0 n ½ fell and at she was same at the time of an approximately equivalеnt inch — years later. she testified 5½ diameter of a cigarette- —-whereas If, shining. how- testified that the sun offset, Brockman case the being between testimony it ever, accept her other and 3 height, inches in from 1½ on,” light wasn’t getting “the dark and which might reasonably have been fore opinion that we are still of the seen some might harm result leaving to one anticipated that reasonably have could not the store with her bundles, arms full of re- circumstances condition and was Mrs. Brockman. suggested that sult in nowhеre harm. *6 lessee, under they, were rather than their City In Stinnett, v. Waco Tex.Civ. premises. any duty up the light to App., 323, 177 S.W.2d affirmed 142 Tex.
648, 180 433, S.W.2d happened accident on the south side of a duty concrete Appellants of exer sidewalk owed 4 about feet wide. The adjoining ordinary to maintain the side cement cising care blocks were not flush. One of the reasonably safe condition for the blocks walk in a had either impliedly raised the south protection invited side of the persons all walk to an insurers, еlevation of They inches were not above them to use it. 1¾ the adjoining block, liability adjoining may they to strict in block nor be held depth lowered to a inches from disregard of foresee consideration 1¾ its adjoining petitioner, block. The they ability. evidence that while There is no sidewalk, walking caught on the complained of, nor the heel knew of the condition of her shoe on the edge elevated inspection reasonable do we think that a concrete block which cаused her to a condition from fall and would have disclosed personal sustain injuries. The any danger any risk of harm accident to happened bright sunshiny day. on a anticipated reasonably have been The one could petitioner Am.Jur., had used the walk Highways, on several See 25 foreseen. § 440, occasions before but had not 373, 670-1, p. pp. 731. noticed the and § particular defect. The court stated that distinguishable present The case is from depth height defect on a side Weingarten, thе case of Inc. v. Brock J. walk cannot alone be test of whether 451, man, 134 Tex. 135 S.W.2d 698. municipality guilty or not the negli Weingarten, case Inc. had covered the gence, general J. nor can a rule be laid down area between its store the sidewalk properly that will fit all cases. The court concrete. The difference in the eleva upon concluded reason and authority that areas tion between the two formed an offset question under facts of the case length entire whiсh extended the the trial court for of law and that building side north which was the minds of reasonable men could not dif variously estimated at from to 3 inches about whether the fer accident ought 1½ height. manager, upon The in store seeing anticipated by have been the municipality, fall, plaintiff remarked, “You City are the and that under the case of of Galves
248 142, Appellee’s Rehearing for On Motion Tex.Sup., 19 S.W. Dazet, v. ton facts did necessary to hold re- In connection with motion for fail an inference raise hearing, appellee requested rea ain keep its walks City to ure findings make additional of fact and con- The Commission sonably condition. safe law, respect clusions of in our : S.W.2d Appeals stated 434] [180 appellee’s grant refusal “Motion up- negligent to hold “Moreover Excep- Facts, Strike Statement Bills reasonably may be keep aof Transcript.” tion and proved the facts inferred from Appellants’ motion for new trial was itnjust burden place an opinion in our 23, Thеir overruled December state- prac- municipality and would upon a exception ment of facts bills of were holding a munici- tice amount Court, respectively, on filed in the Trial safety its pality an insurer of 1959, April 10, 27, more 1959 and March is otherwise rule sidewalks. fifty days than their motion for new & Terminal Belt Houston this state. trial was extension of time overruled. No Tex.Com.App., Scheppelman, v. R. Co. applied Trial Court or for 206.” 235 S.W. Court, Appellants, granted by how- Build v. San Marshall See also Jacinto ever, February file did Court on 1933, 67 Inc., Tex.Civ.App., S.W.2d ing, 10, application 1959 their for an extension ref.; National Bank v. 372, writ Houston of time in which to file the statement 374; 387, Adair, 1948, S.W.2d 146 Tex. 207 transcript, Feb- facts and and this Court on Italy, 204 Bank of Cal. v. Gabriel 26, 1959, ruary good entered order 1039 and annotation A.L.R. 267 P. extending filing A.L.R., p. 1042. 10, 1959, including April on which date photographs transcript of the sidewalk of facts and statement slight clearly eleva- present case show The statement of facts this Court. *7 It cement slab. exception agreed concretе or to of the bills of were not tion and daily many people the used approved, filing how nor the of not shown same waived question, counsel, the evidence does by appellee but the or her but state- approved all time the condition that the facts was and ordered reflect ment present 10, ever fallen by judge April no one had had been the trial 1959 filed of it. the Trial result was filed in Court on timely day, and thereafter filed in this allowing practical effect of the We think day. on the sаme Court recovery cir- appellee’s stand under the to be hold of this case would to cumstances 389-a, T.R.C.P., provides: Rule municipalities are property owners and approval judge of the trial of a state “The safety of their sidewalks. insurers be shall deemed tantamount of facts ment imposes upon them no such strict The law in the trial court.” filing the same to liability. facts, the if statement of view our of the evi- a careful examination After presented timely this Court when dence, favоrably appellee, most viewed agreement filed, contains of counsel or opinion evi- that there is no we are of judge approval ordering of the trial justified the to the submission dence filed, just appellee has no same be negligence on the jury of issue complaint, regardless of whether judgment appellants, that the order is dated or agreement or bears a be reversed. In view Trial Court should expiration subsequent days to the of 50 date unnecessary it holding, we our dеem of final rendition appellants’ Points. consider overruling motion for new trial. We order filing Rule 389-a makes and rendered. Reversed
249
in the Trial Court un-
statement of facts
We
appellants’
find
motion for
Supreme
necessary
Had the
in such case.
instructed
open
verdict
was made
require
approval of
in the presence
appellee’s counsel,
Court desired to
expiration
when
rested,
judge
trial
before the
and renewed when
readily
very
both
fifty day period,
could havе
motion,
sides
Said
rested.
which was
appel- overruled,
agree
provided.
together
so
We do not
excep
tions,
prescribed
appears
Rule
lee that the time limit
in the statement of facts but
Rule
not in
into
389-a.
the transcript
381 should be written
exception.
or bill of
entirely
rules
dif-
are distinct
cover
did not waive the reducing of
such motion
ferent situations.
to a
writing
formal
fil
ing thereof.
concluded, however,
We have
that the failure to reduce said motion to a
appellants filed
27, 1959
March
On
formal writing is immaterial since
Har
Clerk of
District
in the office
no evidence that warranted submission of
instru
designation of
County written
ris
the case
jury.
Such motion
Ap-
states
transcript.
included
ments to
specific
grounds
particu
therefor and
appel
oath that
states
pellee’s counsel
larly “that the testimony
wholly
failed
appellee or
mail to
deliver
lants did
to show
negligence whatsoever on the
thereof,
by
required
copy
attorney a
part of
defendants,
these
which caused or
by
counters
counsel
Appellants’
Rule 376.
brought
injuries
about the
plaintiff.”
copy
they did mail a
sworn statement
Marlin
Trinity
Associates v.
Universal Ins.
attorney
same
appellee’s
thereof to
Co., Tex.Civ.App., 1950,
such wheth by appellee’s received appellants negligent in permitting er counsel mailing is inquired sufficient exist condition Proof the defective counsel. Appel- Rulе requirement appears preceding about in Issues. As meet the by One, exception appellants notified Clerk their bill of No. lee’s counsel 26, February 1959 that properly objected to the submission of such transcript and statement filing ground Issue on the was no evi April to include raising extended dence Issue of of facts April was notified permitting and on *8 exist, same were Court no upon of this condition to evidence the Clerk counsel not re Appellee’s finding negligence has duly of could be filed. sus any sufficiently additional instruments quested tained. We think this raises transcript, nor objection negligence” he re has of “No con included supplemental evidentiary to file a tran quested nection with the other leave Issues inquiring alleged have been doubtless about the defective script, which con applied therefor. had he of sidewalk. granted dition harm as a result not re no of has shown trial, motion for new is copy the written direction for ceiving of stated, among things, that the other Court transcript. submitting jury erred in the cause to the opinion correctly original upon states that Issue of on the Our upon a motion for the appellants predicated filed Court to the condi- non question, obstante veredicto. enter tion of for however, holding, is not based there- that there evidence Our reason is no establishing not upon. The record does indicate that defective condition of such sidewalk given required motion was such as would amount to negli- notice of actionable appears by appellants, gence Rule 301. the motion in the man- subsequent entry judgment. maintenance ner of of such sidewalk. 250. we original opinion, in our
As indicated Point appellants’ first
have construed assignment no evidence
their brief an assignment negligence rather than support insufficient to
that the evidence is jury findings. Appellee’s rehearing is over- motion for C)rpus DeAnda, McDonald, Spann & ruled. Christi, appellant. Corpus Redford,
Lewright, Dyer & Christi, appellee.
PER CURIAM. appellant occasion Five times has FIGUEROA, Appellant, Tomas state- for an of time file a ask extension v. facts, ment each report- delay TREECE, Appellеe. of the court for the is that Clarence for new trial was motion er. Since the No. 19726. Motion 30, 1959, re- July overruled the court Appeals Texas. Court Civil by porter, the mo- short letters attached to engaged in tions, has is stated that she San Antonio. court Once the letter duties. Jan. unsigned. The our discretion exercise of by any not been aided sworn has factual reporter. Rules statement See Texas Civil Rules of Procedure. yet, know As this rec- do whether long motion is or short. fifth ord further-delay necessary by suggests errors state- reason numerous facts. ment unconscious This extensions of time need for when a court duties, reporter conflicting of preparing those duties records parties appeal. should not suffer *9 delay of by reason court re- appellant diligently porter, and made get five occasions rec- effort reporter and file major- from the it. A ord procedure objective rules is to- adjudication. speedy 1,, obtain Rule case, however, This T.R.C.P. will filed until about the time it or- even dinarily argued would be submitted and decided. This Court is now or even de- judgments ciding cases which en- Delays the summer tered of 1959.