JOHN TOOLE AND EUGENE HAYS,FROM A DISTRICT COURT APPELLANTS, v. PHILLIP THOMAS, ET AL., APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-01323-CV
JOHN TOOLE AND EUGENE HAYS,FROM A DISTRICT COURT
 
        APPELLANTS,
 
v.
 
PHILLIP THOMAS, ET AL.,
 
        APPELLEES. OF COLLIN COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
JULY 14, 1989
        This is an appeal from a personal injury judgment rendered in favor of Phillip Thomas and his wife, Rhonda Thomas, individually and as next friend for their children, Michael and Josett, against Eugene Hays and John Toole. The case was tried before a jury, and the court rendered judgment on the verdict for plaintiffs/appellees in the total amount of $2,213,179.00, joint and several, against Hays and Toole. The jury also found no liability on the part of the manufacturer, Weaver Corporation Company, Dura Corporation, and Walter Kidde & Company, Inc., a/k/a Kidde, Inc. FN:1 The trial court directed a verdict in favor of Gene Hays Motors, Inc., an additional defendant.
        In twenty-one points of error, Hays contends that the trial court erred in rendering judgment because: 1) he owed no duty to Thomas and family; 2) he is not liable under §§ 351, 352 or 353 of the Restatement; FN:2 3) none of his acts or omissions proximately caused the accident in question; and 4) mental anguish and loss of society are not recoverable damages for a spouse and children in a non-bystander, non-death personal injury cause. In sixteen points of error, Toole contends that the trial court erred in rendering judgment because: 1) he is not a "possessor" or "occupier" of land; 2) there is no evidence or insufficient evidence that he was in control of the premises; 3) there is no evidence, pleading, or finding that he breached his duty of care as lessor; 4) there is no evidence or insufficient evidence that he knew or should have known of any dangerous condition; 5) he is exempt from liability as an officer, agent, or employee of plaintiff's employer; 6) there is no evidence, insufficient evidence, and no finding of negligence on his part; 7) there is an irreconcilable conflict between answers to jury questions numbers nine through eleven and answers to jury questions numbers thirteen and fourteen; 8) there is no evidence or insufficient evidence and no cause of action for the children's "loss of society" and "mental anguish" damages or for Rhonda Thomas's "mental anguish" damages; 9) there is insufficient evidence to support the jury's assessment of comparative causation; and 10) there is no evidence or insufficient evidence of proximate cause. Appellees also filed conditional cross appeals against GHMI, Toole and the manufacturer, which will be addressed subsequently.
        We affirm the judgment as to the manufacturer. We reverse and render as to Toole and Hays concerning the judgments in favor of Phillip, Michael, and Josett Thomas. We affirm in part and reverse in part the judgment in favor of Rhonda Thomas.
FACTS
        This suit is based on an accident which took place at John Toole Chrysler, Inc. (JTCI) in McKinney Texas, on December 10, 1985. Thomas, a mechanic for JTCI, was working under a hydraulic lift when the lift, which had been acting erratically, lost hydraulic power and fell on Thomas. Thomas sustained serious and paralyzing injuries and filed this suit against Weaver Corporation Company, Dura Corporation, and Walter Kidde & Company, Inc., Gene Hays Motors, Inc. (GHMI) (former occupier of the premises), Gene Hays (former owner of the premises), and John Toole (current owner of the premises). Universal Underwriters Insurance Company, the worker's compensation carrier for JTCI, intervened to recover sums paid to and on behalf of Thomas. The jury found both Thomas and Hays to have been negligent but found no liability against Weaver.
        The hydraulic lift in question was purchased and installed around 1972. From 1976 to 1980, the premises had been owned by Hays, leased to GHMI, and subleased to various parties other than GHMI. In 1985, GHMI owned the automobile dealership and all shop equipment, while Hays owned the land.         In the spring of 1985, Hays and Toole began negotiations for the sale of the land and dealership. Hays represented to Toole that the equipment was old but in good working order. All necessary papers needed to finalize the sale were executed by July 3, 1985. It was disputed who was the purchaser of the dealership in the transaction as between Toole, individually, and John Toole Chrysler, Inc., (JTCI), Thomas's employer, although the agreement listed "John N. Toole or designee" as purchaser. FN:3 The purchaser had been in possession of the premises since May 1985, approximately six months prior to the accident. For the most part, the GHMI employees stayed on after the sale and became JTCI employees.
        Thomas had been employed in the trade as an auto mechanic since 1981 or 1982. He had worked for JTCI approximately five weeks prior to the accident. He was aware that the lift had no "guide post" or "lift leg" and further knew that the lift had no "safety lock" feature for the lift leg. The lift leg served two purposes: to keep the lift from rotating and, with a locking device, to support the column should a hydraulic failure occur. The lift leg had been removed during the time Hays owned the premises.
        There was evidence that the thirteen-year-old lift had received no regular maintenance. GHMI employees testified that they checked the oil levels to make sure the lift was full of oil. They also testified that the lift never acted erratically, though it had "bled down" overnight once or twice. Soil characteristics caused a reaction called "electrolysis" which resulted in holes developing in the lift's outer casing below the ground level. Oil seeped out underground leaving the lift dangerously low on oil. Only four gallons of the recommended forty-three gallons of oil were in the lift's hydraulic system at the time of the accident. There was evidence that proper maintenance, including checking oil levels, would have prevented the accident. Experts testified that the lack of oil and lack of the lift leg made the lift unreasonably dangerous. They further estimated that the holes in the lift casing had developed over the period of six months to two years prior to the accident.
        Thomas testified that there had been no problems with the lift and no erratic movement of the lift prior to the day of the accident. One JTCI employee testified he saw the lift "jump" a few days before the accident. There was testimony that with a substantial oil loss the lift would be expected to behave erratically.
        There was evidence that on the morning of the accident, the lift "shot up" and made a loud "popping" noise. In addition to Thomas, James Meeks, the service and parts director for JTCI, heard this noise. Meeks testified that Thomas had remarked that the car on the lift almost "pitched through the ceiling" and that he (Thomas) should not have gotten under the lift. Meeks testified that both he and Thomas worked under the lift following its erratic behavior. Meeks had just left to get aspirin when the accident occurred.
JURY FINDINGS
        Questions one through six were products liability issues and all were answered favorably to the manufacturer. In answers to questions seven through eleven, the jury found that: 1) the premises presented an unreasonable risk of harm to Toole on the date the premises were sold; 2) Hays knew or should have known of the unreasonable risk of harm; 3) Hays either created or failed to disclose such condition to Toole; 4) the creation of the risk or the failure to disclose the risk was negligence; and 5) that such negligence was a proximate cause of the occurrence.
        Jury questions twelve through fourteen concerned Toole. In response to question twelve, the jury found that on the occasion in question the premises "presented an unreasonable risk of harm to [Thomas]." In response to question thirteen, the jury found that: 1) Toole, individually, exercised control over the premises; and 2) Toole had actual knowledge of, or should have known of, a condition which presented an unreasonable risk of harm to Thomas. The jury found, in response to question fourteen, that: 1) Toole, individually, failed to protect Thomas from such unreasonable risk of harm; and 2) that such failure was a proximate cause of the occurrence in question. A comparative causation jury question was answered as follows: Hays - 40%, Toole - 50% and Thomas - 10%.
HAYS'S POINTS OF ERROR
 
        Hays's points of error are premised on his contention that, as a former owner of the property, he had no duty and no liability to Thomas. Generally, to establish tort liability, a plaintiff must prove the existence and violation of a legal duty owed to him by the defendant. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976). Possession and control generally must be shown as a prerequisite to premises liability. City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986). Hays contends that because he neither owned, possessed, nor controlled the land, he owed no duty to Thomas. Thomas contends that Hays is liable under section 353 of the Restatement of Torts. Section 353 is an exception to the rule stated in section 352. These sections are as follows:
    § 352.        Dangerous Conditions Existing at Time Vendor Transfers Possession.
 
                Except as stated in § 353, a vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.
 
(Emphasis added).
 
    § 353.        Concealed Dangerous Conditions Known to Vendor.
 
                A vendor of land, who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risk to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land with the consent of the vendee or his subvendee, after the vendee has taken possession, if (a) the vendee does not know of the condition or the risk involved therein, and (b) the vendor knows of the condition and the risk involved therein and has reason to believe that the vendee will not discover the condition or realize the risk.
(Emphasis added). Section 352 further provides that, generally, a vendor is not liable for dangerous conditions on the land. In order for the vendor to be liable, the requirements or elements of section 353 must be met. Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362, 365 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.).
        Hays points out that, in answer to question thirteen, the jury found that Toole had actual knowledge of, or "should have known" of, the condition which presented an unreasonable risk of harm to Thomas. Hays argues that this is tantamount to a jury finding that Toole "had a reasonable opportunity to discover the [dangerous] condition". Restatement § 353. We agree. Further, there is no evidence that Hays had reason to believe that Toole would not discover the condition of the lift, as Hays argues under his fifth point of error. Restatement § 353.
        To determine a "no evidence" or "legal insufficiency" point, we disregard all evidence contrary to the finding, and if there is any evidence remaining which supports the verdict or judgment, the trial court's judgment must be upheld. If, after the removal of all contrary evidence, we find no evidence to support the verdict or judgment, then the judgment fails as a matter of law. In re Kings Estate, 150 Tex. 662, , 244 S.W.2d 660, 661 (1951). In reviewing the evidence concerning an "insufficient evidence" or "factual insufficiency" point of error, we look at all of the evidence to decide whether the supporting evidence is so weak or the contrary evidence so overwhelming that the findings should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
        A review of all of the evidence shows that Hays knew that Toole had the right to inspect the premises prior to the sale and that JTCI or Toole was using the premises for a few months before the sale was actually finalized. The lift's warning plate cautioned to check oil levels and showed where the oil gauge was located. Toole had leased the premises to JTCI and JTCI had continued using the facilities. An inspection of the lift would have shown that it had almost no hydraulic fluid out of the required forty-three gallons and would have disclosed that the dipstick was rusty. We therefore sustain Hays's fifth and thirteenth points of error.
        Thomas contends that Hays is liable for creating and failing to repair the dangerous condition of the lift, citing Strakos v. Gehring, 360 S.W.2d 787, 790 (Tex. 1962). However, one who creates and fails to repair a dangerous condition on land does not remain forever liable after he relinquishes control and possession of the land. Beall, 532 S.W.2d at 365. Instead, section 353 of the Restatement defines one's liability in that instance. We have already addressed whether Hays is liable under section 353 of the Restatement and have held that he is not. We conclude that because our disposition of this point calls for reversal of the judgment, we need not address Hays's other points of error challenging the judgment in favor of Phillip Thomas. Hays's points of error eighteen, nineteen, twenty, and twenty-one, concerning the judgment in favor of Rhonda, Michael, and Josett Thomas, will be discussed later.
TOOLE'S POINTS OF ERROR
 
        In his first, third, and fourth points of error, Toole contends that the trial court erred in entering judgment against him as a possessor or occupier of land or as a lessor because: 1) he owed no duty to Thomas, 2) there is insufficient evidence that he, individually, possessed, occupied, or controlled the premises in question and 3) there is no pleading, no evidence, and no finding that he breached his duty as lessor to Thomas. FN:4
TOOLE'S LIABILITY AS A POSSESSOR
 
        An owner, occupier, or one in control of premises owes a duty to make the premises safe for his invitees. Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 446 (Tex. App.--Amarillo 1985, writ ref'd n.r.e.). Section 343 of the Restatement sets out an owner's liability and provides as follows:
 
 
                A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.
        In question thirteen, the jury found that Toole, individually, did exercise control over the premises. Thomas argues that this was a correct finding because the contract of purchase between Hays and Toole listed Toole or his "designee" as the purchaser, because Toole admitted that he was on the premises every week, FN:5 and because JTCI was not incorporated at the time the parties entered into the purchase transaction. Thomas contends that Toole was, at least, in joint possession of the premises at the time of the accident. Toole contends that JTCI and not he had exclusive possession and control of the premises. We find that Toole was not a "possessor" as is contemplated by section 343 of the Restatement. Restatement section 328E defines "possessor" as follows:
 
 
            A possessor of land is (a) a person who is in occupation of the land with intent to control it, or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) and (b).
Prestwood v. Taylor, 728 S.W.2d 455, 460 (Tex. 1987). Toole, individually, was not in or entitled to immediate occupation of the land at the time of the accident as contemplated by either subsections (a) or (c), as JTCI possessed and occupied the land under the lease. Restatement § 328E (a) and (c). Subsection (b) does not apply because JTCI had "subsequently occupied" the land. Restatement § 328E(b). Therefore, because Toole, individually, was not a possessor, as contemplated by the Restatement, he cannot be liable as a possessor of land under section 343. Restatement § 343; Prestwood, 728 S.W.2d at 460.
        Additionally, Thomas was not an "invitee" as to Toole, individually, under Texas law, as Thomas alleges. Restatement § 343. An "invitee" is one who enters the premises under express or implied invitation and whose presence was for the defendant's direct pecuniary benefit. Prestwood, 728 S.W.2d at 464. A "licensee" is one whose presence on the premises is for his own convenience or on business for someone else. Mendoza v. City of Corpus Christi, 700 S.W.2d 652, 654 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). FN:6 Although Thomas's presence at the auto dealership indirectly benefitted Toole as lessor of the premises, there was no direct mutual benefit which would make Thomas an invitee of Toole's. Cf. Prestwood, 728 S.W.2d at 459 (injured party's presence on premises indirectly benefitted lessor/defendant and this was not direct benefit so as to make injured party the defendant's invitee). For this additional reason, Toole would not be liable to Thomas under section 343.
        In Toole's point of error one, he argues that the trial court erred in entering judgment against him because he, as an individual, was not a "possessor" or "occupier" of land, and therefore owed no duty to Thomas. FN:7 Restatement § 353. In his third point of error, he asserts that there was insufficient evidence that he, as an individual, possessed, occupied or controlled the premises. FN:8 A review of all of the evidence shows that Toole emphasized that he was on the premises only as the president of JTCI. The lease between Toole and JTCI clearly transferred possession and control to JTCI. Cf. Adames v. Housing Auth., 392 S.W.2d 806, 809 (Tex. Civ. App.--San Antonio 1965, writ ref'd n.r.e.) (lessor not liable as "possessor" of land where injury occurred on premises under tenant's control). Although there is some evidence that Toole was a possessor, because he was on the premises, we find that there is insufficient evidence that Toole possessed the premises within the meaning of section 328E. Garza v. Alviar, 395 S.W.2d at 823; In re Kings Estate, 244 S.W.2d at 661. We sustain Toole's point of error three.
TOOLE'S LIABILITY AS A LESSOR
 
        Toole also alleges in his fourth point of error that the trial court erred in entering judgment against him because there was no pleading, no evidence, and no finding that he, as an individual, breached any duty of care as a lessor of land. FN:9 We agree. Under the Restatement, a lessor generally has no liability for dangerous conditions which came into existence before the date of the lease. FN:10 Restatement § 356; Prestwood, 728 S.W.2d at 460. A lessor is liable, under section 358 of the Restatement, for conditions he failed to disclose or concealed if he both actually knew of the condition and had reason to believe the lessee would not discover it. Restatement § 358. There is no evidence of, and the jury did not make a finding of, concealment or nondisclosure on the part of Toole. See id.; In re Kings Estate, 244 S.W.2d at 661. Further, there was no evidence of, and no finding of, a covenant to repair or negligent repair by Toole which would make him liable as a lessor under sections 357 and 362. Restatement §§ 357, 362; In re Kings Estate, 244 S.W.2d at 661.
        Toole is correct that there is no evidence as to his liability as a lessor for concealment, nondisclosure, covenant to repair, or negligent repair, as discussed above. Restatement §§ 357, 358 and 362. Further, these omitted findings cannot be implied or deemed because there is no evidence to support them. Warren Petroleum Corp. v. Martin, 153 Tex. 465, , 271 S.W.2d 410, 412 (1954); 3 R. McDonald Texas Civil Practice in District and County Courts § 12.36.4 (rev. 1983). Toole's fourth point of error must be sustained.
        Thomas claims that Toole is liable to him under section 353 of the Restatement, which we have already set out. This contention must be rejected because there was no evidence of, and no finding of, concealment or nondisclosure on Toole's part. Therefore, jury findings on this cause of action cannot be deemed. TEX. R. CIV. P. 278.
        There is no basis on which we may sustain the judgment against Toole. Because we have found reversible error as to Toole insofar as the judgment concerns Phillip Thomas, we need not address Toole's remaining points of error relating to him. However, we still must address Toole's points of error as they concern the judgment in favor of Rhonda, Michael, and Josett Thomas on their separate causes of action.
JUDGMENT FOR THOMAS'S WIFE AND CHILDREN
FN:11
        In Hays's nineteenth point of error, he contends that the trial court erred in entering judgment for the children, Michael and Josett Thomas, for "loss of society" and "mental anguish" because such damages "are not recoverable by children in a non-death case" and for the reason that question nineteen should not have been submitted to the jury. In his twenty-first point of error, he contends that the trial court erred in rendering judgment based on the jury's answer to question nineteen because "as a matter of law any liability for damages a vendor might have is limited to physical injuries to a person on the land caused by a dangerous condition on the premises", citing section 353 of the Restatement. Hays objected to question nineteen as follows:
 
 
        HAYS'S ATTORNEY: Gene Hays objects to the inclusion of the definition of mental anguish for the reasons that mental anguish in this case would not be appropriate, and further, that a limited instruction should be added that in considering mental anguish, do not include any amount for mere worry, anxiety, vexation or anger, and that's based on the Roberts v. U.S. Homes case. In addition to that definition we object to the term society being included for the reason that society is not an appropriate measure of damages or the basis for recovery, and also that this definition includes the word health. The definition that has been included in the previous times does not include the word health, based on a wrongful death case. A recovery based on society is not appropriate in personal injury cases. In any event, the word health should be removed. That's based on Gulf State Company v. Reeds case. We also object to special issue number ... nineteen on the same basis that [the manufacturer] has previously set forth, and we incorporate that into our motion.
The manufacturer had specifically objected to question nineteen on the basis that "there is no recognized cause of action for damage to children when the father survives, particularly in light of the fact that the children did not witness [the accident]." We find that Hays's objection was sufficient to call the trial court's attention to the error of which he now complains. TEX. R. CIV. P. 274.
        Toole also complains of this same error in his twelfth point of error in which he contends that the trial court erred in entering judgment for "loss of society" and "mental anguish" damages to the children because such damages are not recoverable by children in a non-death case. Toole preserved error on this point when he objected to the submission of question nineteen by stating that he excepted to submission for the reason that the issue "places an improper burden on [Toole], constitutes a comment on the evidence by virtue of including a damage issue not compensable under the laws of the state of Texas, and there is absolutely no evidence of immediate perception on the part of Rhonda Thomas and the children." This objection sufficiently apprised the trial court of the error committed in submission of this question. TEX. R. CIV. P. 274.
        We conclude that the submission of jury question nineteen was improper in that there is no recognized cause of action authorizing recovery by children of an injured parent for the loss of society damages found in the answer to question nineteen. Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 379 (Tex. App.--Austin 1984, writ ref'd n.r.e.); Jannette v. Duprez, 701 S.W.2d 56, 61 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Appellees contend that the Texas Supreme Court now allows recovery for these damages, citing Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701 (Tex. 1987). Although children were allowed to recover for the impairment of their relationship with their father in that case, Salinas certainly did not expressly overrule longstanding Texas law forbidding such recovery. In fact, the issue of whether a child can recover for losses sustained due to the injury of a parent was not addressed in Salinas and was not the subject of the writ of error.
        Concerning the mental anguish damages awarded to the children, these also are not recoverable because the children were not bystanders to the accident. Janette, 701 S.W.2d at 58. We sustain these points of error and therefore reverse the judgment as to Michael and Josett Thomas.
        We further sustain Hays's eighteenth and Toole's fourteenth point of error concerning the error of the trial court in submitting damages question number eighteen concerning Rhonda Thomas's damages for mental anguish. FN:12 Both Toole and Hays argue that because Rhonda did not witness the accident, she may not recover for mental anguish under Texas law. We agree. Jannette, 701 S.W.2d at 58. These points of error are sustained.
        In his twenty-first point of error, Hays contends that the trial court erred in rendering judgment on the basis of the jury's finding as to questions eighteen and nineteen because, as a matter of law, any liability for damages a vendor might have is limited to physical injuries to a person on the land. FN:13 However, Hays's objection to the submission of these issues did not refer to this additional basis. Therefore, any error in submission for this reason was waived. TEX. R. CIV. P. 274. We overrule this point of error. Because we have found reversible error concerning the judgment in favor of Michael and Josett Thomas, we need not address Hays's and Toole's other points of error concerning the judgment for Michael and Josett Thomas.
CONDITIONAL CROSS-APPEAL , GHMI AND MANUFACTURER
        Appellees have filed a "conditional cross-appeal" against the lift manufacturer and against GHMI, which they ask that this Court consider should the judgment be reversed as to Toole. Because the judgment as to Toole has been reversed, we now consider these additional points. Thomas complains in six cross-points that: 1) the trial court erred in granting the manufacturer's instruction on foreseeable modification; 2) the jury's finding that there was no defective design was against the great weight and preponderance of the evidence; 3) the jury's finding as to question three that the manufacturer did not give adequate warnings was against the great weight and preponderance of the evidence; 4) the jury's answer to question six that the manufacturer was not negligent or that such negligence was not a proximate cause of the accident was against the great weight and preponderance of the evidence; and 5) the trial court erred in refusing to submit Thomas's requested issues of negligence, breach of warranty, and proximate cause against GHMI.
THE MANUFACTURER
 
        Thomas contends in his first cross-point that the trial court erred in granting the manufacturer's requested instruction that the manufacturer is not liable for unforeseeable modifications since it is "admitted" that the modification to its lift was foreseeable. At trial, when the court inquired as to Thomas's opinion concerning such an instruction, Thomas's attorney said:
        THOMAS'S ATTORNEY:        Your Honor, we think its undisputed from the evidence from Mr. Billings, Mr. McVice (sic) and the manufacturer's representative that this is a foreseeable alteration. Since it's undisputed it's foreseeable, it would be meaningless to include the definitions in the Charge of the Court.
 
                . . . .
 
        THOMAS'S ATTORNEY:        If the Court is of the opinion that it's undisputed that this alteration was reasonably foreseeable, we don't see any reason for that to be included in the Charge of the Court. If the Court feels there is a dispute as to the general issue as to that, obviously it should be included.
        A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. TEX. R. CIV. P. 274. Thomas's "objection" here was not sufficient to preserve any possible error because he essentially conceded the point by his remarks. Id. We overrule this cross-point.
        By his second cross-point, Thomas contends that the jury's finding that the lift was not defectively designed was against the great weight and preponderance of the evidence. FN:14 The manufacturer urges that this point was waived when Thomas moved for judgment on the verdict. However, Thomas's motion for judgment on the verdict asked only for judgment on the jury questions as to Hays and Toole. Therefore, the point was not waived.
        A review of the record shows that there was much testimony that the lift, as installed, was subject to underground "electrolysis," which caused holes to develop in the lift casing allowing oil to escape from the system leading to a sudden falling of the lift. Thomas's apparent contention is that each lift should have been equipped with corrosion protection devices or measures to prevent such electrolysis. Thomas also contends that the lack of a "low oil lockout device" and the "foreseeable" removal of the lift leg rendered the lift unreasonably dangerous as designed.
        The jury heard evidence from one of Thomas's experts, Douglas Stolk, that the absence of a corrosion protection device, lift leg, and oil lockout device made the lift unreasonably dangerous. However, the jury also heard evidence that because of changes occurring in soil conditions at lift installation sites, a corrosion protection device developed for certain soil conditions could become useless if soil conditions change, as they sometime do. Stolk further testified that he was not aware of any lift manufacturer anywhere which incorporated such anti-corrosive features.
        Gene Taylor, Thomas's other expert, admitted that he had never participated in the design of a hydraulic lift. He admitted that the manufacturer had no idea where its lifts would be installed, that soil conditions which cause "electrolysis" vary from site to site, and that the manufacturer does not install lifts. He admitted that attempting to design lifts to combat "worst case conditions" could create an imbalance in the soil and actually accelerate deteriorations of the lift and adjoining equipment.
        Robert Wynne, an engineer hired by Hays, stated that variations in the soil and water content, as well as stray electrical currents, could prevent a lift manufacturer from being able to predict the rate of corrosion at any specific site. Wynne testified that the lift's design was "reasonably safe." The manufacturer's experts testified that even systems equipped with anti-corrosive measures have failed. They noted that soil conditions sometimes do not remain static and that no universal, anti-corrosive measures, good in all soil conditions, are currently available.
        Concerning the low oil lockout device, this device would cause the lift to raise more slowly should a low oil condition occur. It is Thomas's apparent contention that a slowing in the speed of raising the lift would be an indicator of a low oil condition, signaling users of a problem with the lift. However, experts had already testified that with low oil condition, the lift would behave erratically; Meeks testified that it had done so before the accident, which would also signal that the oil level was low. Therefore, the jury could have reasonably found that the device would not add to the safety of the lift.
        The jury, as fact finder, was entitled to believe or disbelieve any witness or portion of their testimony. Anderson v. Trent, 685 S.W.2d 712, 713 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). We hold that the finding that the lift was not defectively designed was not against the great weight and preponderance of the evidence. FN:15 See Belford v. Belford, 682 S.W.2d 675, 676 (Tex. App.--Waco 1984, no writ). We overrule Thomas's second cross-point.
        In his third cross-point, Thomas contends that the jury's finding that the manufacturer did not fail to give adequate warnings and instructions for safe use was against the great weight and preponderance of the evidence. A review of the evidence in the record shows that the lift "warning plate," which was attached to the lift, stated: "Caution. Never permit personnel to operate lift who are not familiar with the operation instruction section of lift installation service manual." There was evidence that although Thomas's employer did not have a manual and Thomas did not read it, it was readily available from the manufacturer. The manual contained the following warnings:
Caution
        If local soil conditions tend to hasten metal decay, we recommend the use of suitable protective treatment for all buried components. If investigation indicates that a protective tape will be sufficient, plastic wrapping tape is available from your jobber or the factory under part number S--21047. Sacrificial magnesium anodes are also available under part number S--24405. The manufacturer will not be responsible for deterioration caused by electrolysis or corrosion.
                
                . . . .
 
Warning
        Never permit personnel to operate lift who are not familiar with the information contained in these instructions.
 
                . . . .
 
 
Warning
        Be certain lift lock is employed before attempting under vehicle repairs. Remove lock pin before lowering vehicle. See Fig. 16.
 
                . . . .
 
Warning
        Under no circumstances should any lift be placed in service until it has been definitely established that it is filled with oil to the proper operating level.
The lift's service manual addressed issues such as electrolysis and maintenance, and had troubleshooting charts to help diagnose malfunctions. It also contained instructions concerning proper use of the lift leg.
        Thomas's experts testified that they had no trouble getting in touch with the manufacturer or in obtaining the lift manual from the distributor, despite the age of the lift. We hold that the jury's findings concerning adequate warnings were not against the great weight and preponderance of the evidence and overrule this point of error. Belford, 682 S.W.2d at 676.
        In cross-point of error four, Thomas contends that the jury's answer to jury question six that the manufacturer was not negligent or that such negligence was not a proximate cause of the occurrence was against the great weight and preponderance of the evidence. Thomas contends that the manufacturer was negligent in design for failing to add anti-corrosive measures and a low oil lockout device to the lift, and in failing to warn of danger adequately.
        A careful review of the record reveals that there was testimony from the manufacturer's experts concerning anti-corrosive measures; it is impossible to tell what will happen concerning electrolysis at any given location; electrolysis is not that common, and therefore, preventative measures are not standard; analysis of soil conditions in order to determine what anti-corrosive measures are most suitable is very expensive; the manufacturer offers anti-corrosive measures as an option to its customers; different types of anti-corrosive measures are needed for different types of soils; and soil conditions are subject to change due to many factors which could render an anti-corrosive device useless or troublesome.
        Concerning the oil lockout device, as we have discussed, there was evidence that it would indicate that the lift is low on oil so as to signal the owner to put in more oil. However, in the absence of oil, the lift had its own signal--erratic behavior, as was evidenced before the accident. Concerning negligent failure to warn, we have already discussed the jury's finding that the warnings given were adequate.
        We hold that the jury's answer to question six was not against the great weight and preponderance of the evidence. Belford, 682 S.W.2d at 676. Although the jury heard evidence from Thomas's witnesses saying that the manufacturer was negligent in various respects, the jury was entitled to disbelieve Thomas's witnesses and to believe the other witnesses in this regard. See Anderson, 685 S.W.2d at 713. We cannot substitute our findings for those of the fact finder at the trial level. Id. We overrule this cross-point.
GHMI
        In cross-points of error five and six, Thomas contends that the trial court erred in refusing to submit Thomas's requested issues of negligence, breach of warranty, and proximate cause against GHMI in connection with GHMI's alleged sale of the lift, failure to maintain, failure to inspect, removal of the lift leg, and failure to repair the lift. If there is evidence to support jury questions, the trial court's refusal to submit them is reversible error. Southwestern Bell v. Thomas, 554 S.W.2d 672, 675 (Tex. 1977).
        GHMI replies that there is no evidence that it is liable under any negligence theory because it was not in possession or control of the premises at the time of the accident. City of Denton v. Page, 701 S.W.2d at 836. GHMI contends that it is also not liable for "creating" the dangerous condition because there is no evidence that it had any reason to believe that the new owner would not discover the condition upon transfer of possession of the property, as discussed under Hays's points of error one and three. Restatement § 353. GHMI argues that there was also no evidence of concealment or nondisclosure. Restatement § 353. GHMI contends that it is not liable as the seller of the lift for breach of the warranty of merchantability because it is not a "merchant" under the terms of the Texas Business and Commerce Code. See TEX. BUS. & COM. CODE ANN. §§ 2.106 and 2.314 (Vernon 1968). FN:16 It is also clear that GHMI did not breach the warranty of fitness for a particular purpose. See TEX. BUS. & COM. CODE ANN. § 2.315 (Vernon 1968). GHMI argues that there is no evidence that it removed the lift leg and that it owed no duty to inspect the premises. GHMI also asserts that it cannot be strictly liable under section 402A of the Restatement for the reason that it was a mere "occasional seller" as defined in the Restatement. Restatement § 402A. We agree with all of GHMI's contentions and hold that there was no evidence raising any theory of liability applicable to GHMI, so that the failure to submit the issues on negligence and proximate cause was not error. Southwestern Bell v. Thomas, 554 S.W.2d at 675. The trial court is only required to submit issues raised by the evidence. TEX. R. CIV. P. 278. We hold that the trial court did not err in refusing to submit the requested issues. We overrule Thomas's cross-points five and six.
CONDITIONAL CROSS-APPEAL, TOOLE
        In their reply brief, appellees included an additional conditional cross-appeal to be considered should the judgment be reversed as to Toole. These three additional cross-points are as follows:
 
 
            CONDITIONAL CROSS-POINT NO. 1: THE TRIAL COURT ERRED IN REFUSING TO SUBMIT APPELLEES REQUESTED ISSUES CONCERNING TOOLE'S NEGLIGENCE IN SELLING, MAINTAINING, FAILING TO INSPECT, REPAIR AND WARN WHICH WAS A PROXIMATE CAUSE OF THE OCCURRENCE IN QUESTION.
 
            CONDITIONAL CROSS-POINT NO. 2: THE TRIAL COURT ERRED IN REFUSING TO SUBMIT APPELLEES REQUESTED ISSUES CONCERNING WHETHER THERE WAS BREACH OF WARRANTY IN CONNECTION WITH THE SALE OF THE LIFT.
 
            CONDITIONAL CROSS-POINT NO. 3: THE TRIAL COURT ERRED IN REFUSING TO SUBMIT APPELLEES REQUESTED ISSUES OF GROSS NEGLIGENCE AGAINST JOHN TOOLE AND EXEMPLARY DAMAGES AGAINST JOHN TOOLE.
        With regard to the issues concerning Toole's liability as a seller of the lift, there is no evidence that Toole sold the lift to anyone. The land was purchased by Toole, individually. The lift, which was permanently attached to the realty when it was installed and partially covered by the cement base, became a part of the realty. The realty was then leased to JTCI by Toole. Therefore, Toole could not be liable as a seller of the lift because it was not sold.
        Concerning Toole's liability as a lessor, he could not be liable unless he failed to disclose, concealed, covenanted to repair, or negligently repaired the lift. Restatement §§ 357, 358 and 362. There is no evidence of Toole's liability in this regard. Concerning Toole's liability as a possessor of the premises, there is no evidence that he was a possessor of the premises. Restatement § 328E.
        As concerns breach of warranty, Toole is not liable because, again, the lift was leased to JTCI as a part of the premises rather than sold. Therefore, the warranties contained in the Texas Business and Commerce Code do not apply. TEX. BUS. & COM. CODE ANN. §§ 2.102, 2.106 (1968).
        Thomas's last contention is that jury questions concerning gross negligence should have been submitted. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant. The plaintiff must show that the defendant was negligent and that the defendant was consciously indifferent to his rights, welfare and safety. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981). Here, appellees have not even shown mere negligence, as previously discussed in this opinion.
        We hold that the trial court did not err in refusing to submit these jury questions, as there was no evidence to support their submission. TEX. R. CIV. P. 278. We overrule these cross-points of error.
                                                                  
INDEMNITY
 
        Because we have upheld in part Hays's liability to Rhonda Thomas, we address Hays's point of error concerning indemnity. In his twenty-second point of error, Hays contends that the trial court erred in denying his claim for indemnity from Toole because, as a matter of law, the sale and purchase agreement provided for such indemnity. The sale and purchase agreement provided, in relevant part, as follows:
INDEMNITY AGREEMENT BY PURCHASER
                11.        Purchaser shall indemnify and hold Seller and the property of Seller free and harmless from any and all claims, losses, damages, injuries, and liabilities arising from or in connection with the operation of the Business after the Closing.
 
                        Purchaser shall allow seller to leave signage on Used Car Lot for a maximum of 90 days or until seller is able to move signage (Gene Hays Motors) to another location to comply with Texas Automobile Commission License Laws.
 
                . . . .
 
        
INDEMNITY AGREEMENT BY SELLER
 
                12.        Except as otherwise expressly provided in this Agreement, Seller shall indemnify and hold Purchaser and the property of Purchaser, including the Business and the Assets of the Business, free and harmless from any and all claims, losses, damages, injuries, and liabilities arising from or on account of Seller's operation of the Business or Seller's ownership or any of the Assets of the Business that are subject to this Agreement.
        The agreement containing the indemnity clause says that "purchaser" will indemnify "seller." The agreement lists GHMI, rather than Hays, individually, as "seller." Therefore, only GHMI could receive indemnity under the agreement. No judgment was rendered against GHMI. We overrule this point of error.
        We affirm the judgment as to GHMI and the manufacturer. We reverse the judgment as to Toole's and Hays's liability to Phillip, Michael, and Josett Thomas and render a take nothing judgment in its stead. We also reverse the trial court's judgment as to the "mental anguish" damages awarded to Rhonda Thomas. As to her damages for loss of consortium, we affirm. The cause is affirmed in part and reversed and rendered in part.
 
                                                          __________________________
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
87-01323.F
 
FN:1 Collectively referred to as "the manufacturer" for the purposes of this appeal.
FN:2 Restatement (Second) of Torts (1965). All references herein will be to this Restatement.
FN:3 The land on which the dealership was operated was purchased by Toole, individually.
FN:4 Our standard of review concerning factual and legal sufficiency points is stated previously and incorporated here.
FN:5 Toole testified that he was there in his capacity as president of JTCI.
FN:6 A lesser standard of care is owed to licensees. The duty owed a mere licensee is not to injure willfully, wantonly, or through gross negligence and to warn of or make safe dangerous conditions actually known. Mendoza v. City of Corpus Christi, 700 S.W.2d 652, 654 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). Toole is also not liable to Thomas as a licensee because Toole was not a "possessor" of land as contemplated by section 342.
FN:7 Under this point, Toole argues that he is not a possessor of land as a matter of law. We construe this point as a no evidence point. TEX. R. APP. P. 74(d).
FN:8 Our standards of review concerning factual and legal insufficiency points have been previously stated and are incorporated here.
FN:9 Our standard of review for no evidence points has been stated previously.
FN:10 The jury found, in effect, that the dangerous condition existed before the lease from Toole to JTCI because it found that the condition existed before Hays sold the property.
FN:11 Even though we have held Hays and Toole are not liable to Phillip Thomas, in an abundance of caution, we have addressed the points of error regarding the separate but related recovery of Rhonda, Michael, and Josett Thomas.
FN:12 Toole does not complain of the other damages awarded to Rhonda Thomas.
FN:13 Hays does not otherwise complain of the damages awarded to Rhonda Thomas.
FN:14 Our standard of review concerning factual insufficiency points is stated previously and is incorporated here.
FN:15 Our standard of review for factual sufficiency points of error has been previously stated.
FN:16 A merchant is one in the business of selling goods of the kind. TEX. BUS. & COM. CODE ANN. § 2.106 (Vernon 1968). GHMI did not sell lifts.
File Date[01-02-89]
File Name[871323F]