author: DAVIS, Commissioner. OSBORNE, Judge.

text:
    Hazel STILLWELL (Johnson), Appellant, v. Bruce STILLWELL, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.

      Robert L. Dowell, Greensburg, for appellant.
    Carl Howell, Hodgenville, for appellee.
   DAVIS, Commissioner.

The sole question presented in this appeal is whether the trial court abused its discretion in denying custody of three children to the appellant-mother. To avoid confusion we will refer to parties by their first names. Hazel obtained a divorce from Bruce on December 9, 1961. In the judgment in that case, she was awarded custody of the then living two young sons of the parties; she gave birth to a third son on February 7, 1962, and his custody remained with Hazel until an order entered April 24, 1965, awarded custody of all three of the children to Bruce. There was no appeal from the order awarding the custody of the children to Bruce, but in June 1966, Hazel filed her motion seeking to have custody of the children restored to her. On July 9, 1966, her motion was denied, and this appeal challenges the ruling of the trial court on that motion. '

Shortly before th'é custody order of April 1965, Bruce undertook to visit the three children, and he asserts that he found Hazel in a compromising situation with a man called “Joe” in the presence of the children. It appears that a fight developed between Bruce and “Joe.” There was some evidence that Hazel participated in that fracas, although she testified that it was a “fair fight.”

In any event, Hazel and “Joe” were arrested and spent a few days in jail. It was at that time that Bruce filed his motion to have custody of the children taken from Hazel and given to him. Hazel did not appear in opposition to the custody motion, and the court awarded custody to Bruce upon the unchallenged evidence presented by Bruce and his mother.

On December 17, 1965, Hazel married one Johnson (a different individual from “Joe” who was involved in the April incident). Her present husband has a son who was six years of age when the matter was heard in 1966. The three children of Hazel and Bruce were aged eight, seven, and four at the time of the hearing on Hazel’s motion for custody.

At the latter hearing Hazel explained that she had not understood that she should attend the 1965 hearing at which custody was given to Bruce. She denied any impropriety with “Joe.” Hazel presented her own and other evidence reflecting her suitability as custodian for the children. Bruce presented evidence tending to prove that the children’s welfare has been well served since their custody was transferred from Hazel to him by the 1965 order. There was no showing suggesting that the home provided for the children is an unsatisfactory residence. Hazel testified that one of the children suffers a congenital defect in his hand and that a series of operations to correct the condition is required. She testified that Bruce had failed to arrange for one of the operative procedures, when it was due to be performed. Bruce denied this and declared that the surgery had been put off until the end of the then current school term in accordance with the doctor’s permission.

The parties to this appeal recognize the well-settled principles reflected in our decisions in custody cases but maintain that the authorities support their respective positions. It is axiomatic that the primary consideration influencing the courts in determining the question of child custody is the welfare of the child or children involved. Chastain v. Chastain, Ky., 405 S.W.2d 758. The same decision correctly notes that ordinarily the mother of small children will be awarded their custody unless she is unfit for that important responsibility.

In the case at bar, Hazel voluntarily relinquished custody of the children in 1965. Despite her denial of culpability, the chancellor was justified in believing to the contrary. The chancellor saw and heard Hazel and Bruce testify in the 1966 hearing and concluded that the best interests of the children “will be served by overruling the motion and continuing the order as heretofore made in effect.”

We think the chancellor was eminently justified in reaching the decision in view of the attendant circumstances of this case. , Doubtless, one factor influencing him was the brief interval which had elapsed since the custody had been changed. The facts that the children have fared well in the existing custodial arrangement, coupled with the undesirability of precipitate reshuffling of custody considered with Hazel’s alleged misconduct, furnish adequate basis for the chancellor’s decision. We are unable to say that the chancellor abused his discretion or that his decision is clearly erroneous.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MIL-LIKEN, MONTGOMERY, PALMORE, and STEINFELD, JJ., concur.

CONCURRING OPINION

OSBORNE, Judge.

I concur in the results reached by the majority opinion, however, I do not agree with the method used in reaching the end result. We are becoming increasingly inclined toward the idea of examining cases of this nature as if they were being tried before us initially. If, after a full-blown examination of the facts, we perchance agree with the ‘trial -court-"the opinion is written affirming, casting about trite old slogans such as, “the welfare of the children is controlling,” or “from the whole record the decision doesn’t appear to be clearly erroneous,” and others. The majority opinion herein is a fair example of all of these faults. The rule controlling these cases is that the decree awarding or denying custody will be affirmed unless there is a clear showing of an abuse of judicial discretion on the part of the chancellor. See Skidmore v. Skidmore, 261 Ky. 327, 87 S.W.2d 631; Travis v. Travis, 282 Ky. 215, 138 S.W.2d 336; Price v. Price, 306 Ky. 214, 206 S.W.2d 924; Gambin v. Gambin, Ky., 354 S.W.2d 504; DeSimone v. DeSimone, Ky., 392 S.W.2d 68; Taylor v. Taylor, Ky., 394 S.W.2d 896; Newby v. Newby, Ky., 275 S.W.2d 779; Renfro v. Renfro, Ky., 291 S.W.2d 46 and Wilkey v. Glisson, Ky., 303 S.W.2d 266.

The record herein showing no abuse of discretion, the judgment should be affirmed.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    HUMBLE OIL & REFINING COMPANY, Petitioner, v. Johnnie D. WILLIAMS, Respondent.
    No. B-273.
    Supreme Court of Texas.
    Oct. 25, 1967.
    Frank L. Heard, Jr., Houston, for petitioner.
    Tucker, Senff & Adams, Nacogdoches, for respondent.
   GREENHILL, Justice.

This is a suit by the owner of the surface of a tract of land, Johnnie D. Williams, against the Humble Oil & Refining Company, the owner of a valid oil and gas lease, for damages to the surface. Humble’s lease had been obtained from Williams’ predecessor in title, and Williams bought the land subject to the lease. Williams alleged a willful trespass, and his recovery is based on an alleged use by Humble of more of the property than was reasonably necessary for its operations. Trial was to the court without a jury. Williams recovered a judgment for $550, and Humble appealed. The Court of Civil Appeals at Tyler affirmed. 413 S.W.2d 413.

The Humble lease, among other things, gave it the right to enter upon the land for the purpose of drilling, exploring, mining, producing and removing oil from the property. It also authorized Humble to build roads upon the premises. The evidence set out below is relied upon by Williams to show a trespass to his land; i. e., to support the implied finding of fact by the trial court that Humble used more of the land than was reasonably necessary for the above authorized purposes.

The statement of facts is relatively brief. The land involved is a 79.06 acre tract located approximately fifteen miles northwest of Nacogdoches. Humble drilled a well on the property and had constructed a road across the property from a gravel county road to the well site. Williams testified that the road was about 2,300 feet long and 30 feet wide. It had a gravel base but had been “black-topped”; i. e., it had some sort of an oil based surface over the gravel. The road was built up about twenty inches, perhaps two feet, above the surrounding land. It ran in a generally northerly direction from the county road and some fifty feet from Williams’ side fence. It had a slight curve before coming to the well site. Williams drew a diagram of his land and the road on a blackboard in the courtroom; and he referred to places and directions as “down here,” “over there,” and “this direction here.” No map is in the record, and we are unable definitely to relate the testimony to the location of the road and other items on the ground.

There was evidence that the road had been built in the general direction that Williams previously had used to get from the county road to the area of the well site. He said his tire tracks could have been seen if one had looked before it rained.

Pictures in evidence showed some small pine trees which bordered on an area of some large pine trees. Williams had not planted the trees; they were there when he purchased the property. Williams testified that Humble, in building the road, cut or pushed over some of the smaller trees, trees of a diameter of two inches or less. He counted 315 such trees, and testified that they were worth $2.67 each. Pictures introduced by Humble show the road going through the trees.

Williams testified also that there is an area off of the road which Humble’s trucks had used for the purpose of parking and turning around. He said the trucks had made ruts up to a foot deep in such parking and turning area.

Williams did not live on the land, but he had two chicken houses there. He also used the land for grazing and had fertilized it. He testified that the road interfered with his working of the pasture; that the use of his mechanized equipment was impaired by the existence of the road. He considered the road-a'nuisance. Moreover, when Humble’s trucks drove over his cattle guard, they spilled . some oil. The spilled oil then became mixed with dirt, and his cattle guard had become ineffective to the extent that he had been required to chase and "recover cattle from time to time. He did not, however, allege any negligent action in this regard. Using “before” and “after” figures, he testified that his land was worth approximately $3,500 less because of the existence of the road.

The oil and gas lease gave Humble and dominant estate. The lessee had the right to use as much of the premises, and in such a manner, as was reasonably necessary to comply with the terms of the lease and to effectuate its purposes. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954); Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 (1957), Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Keeton and Jones, Tort Liability and the Oil and Gas Industry, 35 Texas Law Review 1 (1956). A person who seeks to recover from the lessee for damages to the surface has the burden of alleging and proving either specific acts of negligence or that more of the land was used by the lessee than was reasonably necessary. Warren Petroleum Corp. v. Monzingo, cited just above; Robinson Drilling Co. v. Moses, Tex.Civ.App.1953, 256 S.W.2d 650, no writ; Finder v. Stanford, Tex.Civ.App.1961, 351 S.W.2d 289, no writ. It has been held that the parties may provide in the lease agreement that the lessee shall pay for damages to land, trees and cattle, and that such provisions are enforceable whether are not the damage or destruction is occasioned by a reasonable use of the land. Meyer v. Cox, Tex.Civ.App.1952, 252 S.W.2d 207, writ refused. The lease in question contained no such provision.

The plaintiff Williams had no pleadings and introduced no proof of negligence, and there is no proof that Humble used more of the land than was reasonably necessary to conduct its operations. The lease itself authorized Humble to enter the land and build the road. There is no proof that the road was unnecessary or could have been built in a less damaging manner. There is no proof that the road would have sufficed for Humble’s purposes had it been gravel instead of hard top, or narrower, or that it could have been built without destroying as many trees.

Humble, by necessary implication, had the right to use its trucks on the road. There is no evidence that it was unnecessary for the trucks to park or to turn around in the area where they did, or that they used more area in parking or turning than was reasonably necessary. Nor is there evidence that the trucks made longer or deeper ruts than were reasonably necessary.

Williams’ testimony that the road interfered with his grazing operations and was a nuisance to him is not evidence that the road was not reasonably necessary. His testimony that because of the road his land was worth $3,500 less does not supply proof of the necessary elements here. The $3,500 figure does not relate to damages 'from an excessive, unnecessary, or unreasonable use of the property; it relates to the road itself which Humble had the right to build.

The judgments of the courts below are reversed, and judgment is here rendered that the plaintiff Williams take nothing.


author: POPE, Justice.

text:
    Ex parte James Charles WILLIAMS.
    No. B-333.
    Supreme Court of Texas.
    Nov. 1, 1967.

      Crawford Parker, Jr., Carthage, for relator.
    Milton E. Havlick, Jr., Tomball, for ap-pellee.
   POPE, Justice.

This is an original habeas corpus proceeding. Relator, James Charles Williams, was adjudged in contempt and confined for his disobedience of a court order requiring him to make support payments to a son and a married daughter until the younger child reached twenty-one. The support order was rendered before the son reached eighteen and after the daughter’s marriage. Relator ceased making support payments after the son reached eighteen and urges that the order to make payments for either child is unauthorized by art. 4639a, Vernon’s Ann.Civ.St. and is void. We agree and relator is discharged.

Relator and Clara M. Williams were divorced on July 2, 1951. The court awarded custody of the two minor children to the mother, and ordered relator to pay $15.00 per week until both children reached sixteen. During 1956 the district court held relator in contempt for his failure to pay support, but relator purged himself of the contempt by paying $3,000, that being the amount of the delinquent payments. On December 12, 1966, the court again held relator in contempt and he again purged himself by paying $750.00 which was owing. The court on January 3, 1967 rendered a new order which increased the amount of child support to $30.00 per week. The order further provided:

* * * It is further ordered that that Divice Device, <u CM u <D >> ¾ *3 g x 8 n> p o 3 ¾ P- S+ <u ⅜ a - O *-H > o Q 0> ° P £> s 3 gs w <⅞ M. P Hi 3 ^ g Hh O O* C P > ⅛ ^ £ 3 ¡3* 0> P O ^ S 73 <u 40 c u m ⅛ S 2 o L o* o <v <-h b/) o to ⅞) P TÜÍ tuO -»-» a : 3 73 ^ ⅜ . s * * * ."

The order was silent about any delinquent support payments other than the $750.00. Relator paid the $750.00 and continued his weekly payments until March 19, 1967. That was the date his son reached eighteen, and his daughter had married prior to that date. Relator then ceased making all support payments, and it is his failure to pay support since that time for which he was found in contempt.

Article 4639a-l authorizes support payments for persons who are not minors and who require custodial care, but it is not applicable in this case. Article 4639a ; is the source and limit-of .judicial-power to order relator to pay child -supp.ort. Ex parte Taylor, 137 Tex. 505, 155 S.W.2d 358 (1941); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931). The statute authorizes an order i for the payment of support until a child \reaches the age of eighteen years, but not beyond. Ex parte Hatch, 410 S.W.2d 773 (Tex.1967).

The mother, Clara M. Williams, invokes our recent decision in Ex parte Hooks, 415 S.W.2d 166 (Tex.1967) as authority for the trial court’s commitment of relator for his failure to pay support beyond age eighteen. Hooks did not so hold. The arrearage owed in that case, as reflected by the court’s order, had all accrued and the amount was definitely ascertained as a fixed and certain sum by an order of the court which was rendered before the children reached eighteen. The only judgment in this case which purports to ascertain any sum for delinquent support is the court’s order of January 3, 1967 which ordered relator to pay $750.00. The trial judge found as a fact in this contempt proceeding that “the respondent complied with the order of the court by paying the $750.00 * * The court further found that relator paid support until the son reached eighteen. Unlike Hooks, the court order in the present case commanded payment of child support which accrued after the son reached eighteen.

The order was also void in ordering relator to pay support for his married daughter. The daughter married on October 4, 1966 at the age of sixteen. On January 3, 1967 the trial court ordered relator to continue his support of his married daughter until she became twenty-one. Relator’s legal obligation to support his daughter ceased upon her marriage. She was then no longer a minor child. Article 4625, Vernon’s Ann.Civ.St. provides that every female under the age of twenty-one who is lawfully married is deemed to be of full age. Thompson v. Crim, 132 Tex. 586, 126 S.W.2d 18 (1939); Spears v. Houston Fire & Casualty Insurance Co., 215 S.W.2d 896 (Tex.Civ.App.1948, writ ref.). The duty to support the daughter, after her marriage, rested upon her husband. Art. 602, Vernon’s Ann.Pen. Code; Morgan v. Drescher, 219 S.W.2d 488 (Tex.Civ.App.1949, writ ref. n. r. e.).

We conclude therefore that the order which commanded relator to support his son after he reached eighteen and his daughter after her marriage was unenforceable by contempt proceedings. The relator is discharged.


author: PER CURIAM.

text:
    Ex parte Wesley HOFMAYER, Relator.
    No. B-530.
    Supreme Court of Texas.
    Nov. 1, 1967.

      Sam Houston Clinton, Jr., Austin, for relator.
   PER CURIAM.

This is a petition for writ of habeas corpus filed on behalf of Wesley Hofmayer, a minor, who is allegedly restrained of his liberty by being confined at the Mountain View School for Boys in Coryell County, Texas, by George B. Adams, Superintendent thereof, by virtue of a void order entered by the judge of the 98th District Court of Travis County, Texas, sitting as a Juvenile Court in cause No. J — 3568. It is asserted that in the proceedings which resulted in the rendition of the allegedly invalid order, the relator was not afforded due process as required by the Fourteenth Amendment to the Constitution of the United States. See, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Hegwood v. Kindrick, 264 F.Supp. 720 (U.S.D.C., S.D.Tex.1967).

Under the provisions of the Texas Constitution and the pertinent Texas statutes relating to the original jurisdiction of this Court and the Court of Criminal Appeals, the circumstance that the cause out of which a restraint of a person’s liberty arises may be classified as a civil case, is not sufficient to vest this Court with habeas corpus jurisdiction. Under Article 1737, Vernon’s Ann.Tex.Stats., our jurisdiction to issue an original writ of habeas corpus extends only to those causes in which “a person has been confined for violating an order, judgment or decree in a civil cause, and we are without power to inquire into the legality of restraint imposed for some other reason.” Ex parte Morris, 162 Tex. 530, 349 S.W.2d 99 (1961).

Under our Constitution, we do not have general original jurisdiction to grant the writ of habeas corpus as does the Court of Criminal Appeals. Article 5, §§ 3 and 5, Constitution of .Texas, Vernon’s Ann.St.

The petition is dismissed for want of jurisdiction.


author: CHAPMAN, Justice.

text:
    TAYLOR-EVANS SEED COMPANY, Appellant, v. Don HART, Appellee.
    No. 7736.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 18, 1967.

      Culton, Morgan, Britain & White and Maston C. Courtney, Amarillo, for appellant.
    Linn & Helms and Richard N. Countiss, Spearman, for appellee.
   CHAPMAN, Justice.

This is an appeal from the order of the District Court of Hansford County overruling a plea of privilege filed by defendant, Taylor-Evans Seed Company, a corporation domiciled in Swisher County, to be sued in its resident county. So far as appellant’s contention for reversal of the trial court is concerned, only Exception 23 of Article 1995, Vernon’s Ann.Tex.St. is involved. Appellee also pleaded Exception 5 of Article 1995 but the trial court held against him on that part of his controverting plea.

Appellee, Don Hart, was plaintiff below and the named corporation was defendant. They will hereinafter be referred to by their names or as they were in the trial court.

By written contract dated February 10, 1965, entered into between the named parties, Don Hart agreed to produce for defendant seed milo on approximately five hundred acres of land he was farming in Hansford County. Defendant agreed to furnish the necessary seed milo, to assume the responsibility of roguing the planted acreage, “ * * * apply for certification and carry on necessary work other than production with the exception of keeping down noxious weeds from neighboring fields, bar ditches, etc., that might cause the field to be turned down for certification.” Under the contract plaintiff was to pay back to defendant the expenses incident to roguing, such refunds to be made at the time plaintiff was paid for the seed milo grown.

Recovery is sought by plaintiff because of the failure of defendant to perform the roguing operation required by the contract, in the manner and at the time contemplated by the parties. It is without contradiction that all the seed milo grown on the five hundred acres in 1965 failed to meet the minimum standards of purity required except 170,400 pounds of the R.S.-610 variety accepted by defendant.

The exception to the legal right of defendant to be sued in the county of its residence with which we are here concerned is that part of Subdivision 23 of Article 1995 requiring proof of a cause of action by plaintiff against defendant; that said cause of action or a part thereof originated in Hansford County and that defendant is a private corporation. Those were the venue facts necessary to be established. The last two are conceded by brief of Taylor-Evans to have been proven.

It appears to be settled law in this state that under Subdivision 23 of Article 1995 authorizing the bringing of a suit against a private corporation in any county in which the cause of action, or a part thereof, arose, such cause of action for the breach of an obligation is composed of two elements; i. e., (1) the contract, which is the primary right of the plaintiff, and (2) the breach thereof, which is the act or omission on the part of defendant without which there could be no cause of action or right to recovery. Old Nat. Life Ins. Co. v. Bibbs, 175 S.W.2d 304 (Tex.Civ.App.-Galveston, 1943, writ dism’d); Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936, on certified questions from our cour(). We must, therefore, look to the evidence to determine if defendant failed to perform the roguing operation required of it under the contract in the manner and at the time contemplated by the parties.

The two points properly brought forward by Taylor-Evans are assertions of no-evidence and factually insufficient evidence to support the judgment rendered by the court.

Pursuant to defendant’s request for findings of fact and conclusions of law the trial court found that plaintiff presented evidence that defendant failed to send rogu-ing crews to the field at the proper time or in sufficient numbers to properly perform the roguing operation and there were inadequate roguing crews in the subject field at ⅛ time when voluntary Sudan grass, was blooming and pollinating with the seed grain. We hold the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. It follows that such a finding naturally includes the no-evidence point; i. e., there was some probative evidence from which the trier of the facts could make such finding.

The evidence supporting the finding of fact shows defendant sent four separate crews to perform the roguing tasks. The first crew sent by Taylor-Evans was composed of Mexican Nationals. The Border Patrol intercepted them before they ever reached the field. The second crew constituted approximately fifty teenage, unsupervised, Borger grade school and high school boys. They were in the field at a crucial time but were not getting the work done properly. After a few days they were fired and a crew of Negroes sent to do the roguing. Their work was also unsatisfactory and defendant fired them. It was a week to ten days from the time the teenagers were discharged before there was a full crew of roguers in the field. Finally, a crew of North American Mexicans was sent to do the roguing. Their work was efficient and satisfactory but there is probative evidence that during the interim from the appearance of the teenagers to the time the last crew of Mexicans were sent to the field, a period of more than three weeks, the foreign plants had bloomed and cross-pollinated with the seed milo.

The evidence favorable to the trial court’s fact findings [Finding No. 9] also show that plaintiff had advised defendant before the contract was signed that Sudan grass had been grown on part of the subj ect field two years prior and milo and voluntary Sudan grass had been grown there one year before the said milo was planted. There was also evidence offered by plaintiff that defendant’s agents were told of the crop history of the said grain field before the contract was signed and that defendant’s agents saw the Sudan grass in the field when the seed grain was in an early growing stage and told plaintiff it could be adequately rogued.

The evidence is without contradiction that plaintiff performed his obligation of keeping down noxious weeds and other plants from neighboring fields, bar ditches, etc.

To contradict the above evidence favorable to plaintifff, defendant’s agents testified it would be impossible to grow seed grain acceptable to defendant in a field with the crop history of the subject field, and Darwin Metcalf, manager of defendant corporation, testified nothing was said before the contract was signed that Sudan grass had been grown on part of the five hundred acre field in 1963.

The trial court concluded from the foregoing facts that a cause of action was proven “ * * * by plaintiff’s evidence of defendant’s breach of the contract by failure to timely and properly rogue the said grain field; and by plaintiff’s evidence of monetary damage suffered as a result of the breach.”

Where the great weight and preponderance of the evidence question is raised in a Court of Civil Appeals from a judgment based upon a jury verdict, the Supreme Court of Texas in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) has announced the law as follows:

“The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict.”

Though our case is a venue matter arising from fact findings made by the trial court rather than a jury case tried on its merit, the Supreme Court of Texas in a venue case heard before the trial court has held: “The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other case.” Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).

The trial court resolved the controversial testimony concerning the material facts constituting the breach of the contract by believing the testimony of plaintiff and his witnesses and rejecting that of defendant and its witnesses. We cannot say, in considering all the evidence, that his findings were so against the great weight and preponderance of the evidence as to be manifestly unjust.

In view of what we have said, it is unnecessary to pass on appellee’s cross point.

The judgment of the trial court is affirmed.

      . Roguing, as used in the production of certified seed milo, is the process of preventing the pollination of inferior or non-typical plants with the seed milo being grown for certification.


author: MASSEY, Chief Justice.

text:
    J. T. CONWAY et al., Appellants, v. T. W. IRICK et ux., Appellees.
    No. 16854.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 29, 1967.
    Rehearing Denied Oct. 27, 1967.

      Chester A. Oehler, Dallas, for appellants.
    Gerald E. Stockard, Denton, for ap-pellees.
   OPINION

MASSEY, Chief Justice.

This is an appeal from an order granting a temporary injunction. Antecedent to entry there was an order which granted a temporary restraining order, the fiat of which read: “It is accordingly ordered that the Clerk of this Court issue a temporary restraining order, operative until and pending the hearing below ordered, restraining and enjoining J. T. Conway and J. B. Conway * * * from entering upon a strip of land * *

As in the case of Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14 (1902) the question presents itself, “under which of the rules respectively announced in the cases cited does the injunction under consideration fall? This is to be determined by the language of the judge’s fiat. It is apparent from that language that the judge * * * considered that, since he was granting an injunction in a case which was triable and which was to be brought in another district, he was performing a very delicate duty, and that he proposed to go no further than was necessary to protect the rights of the plaintiff in the suit. Consequently he directed the clerk of the district court * * * to file the petition, and to cite the defendants to appear before the judge of that court on the 26th day of September, 1902, to show cause why a permanent injunction should not be granted, and at the same time to issue ‘a restraining order to defendants * * * pending such hearing.’ That the hearing meant was the hearing of the prayer of the petition to grant an injunction to remain in force during the pendency of the suit is apparent from the fact shown by the record in the principal case, * * *. It is obvious, therefore, that the judge did not attempt to fix a time in which they were required to answer as to the whole case, but merely to name a date at which they should appear and show cause why an injunction, which was to operate until the final determination of the suit, should not be granted. Nor do we think the language of the fiat reasonably admits of a different construction. The clerk was required to issue a restraining order ‘pending such hearing.’ We think this means the same as if the words had been ‘until and pending such hearing,’ and that the intention was to limit the operation of the order until such time as the parties could be heard upon the issue whether, under the allegations in the petition and answer, should one be filed, an injunction, to remain in force until the final disposition of the case, should be granted. * * * We therefore conclude that the injunction in this case was intended to operate for a fixed period only, and that it comes within the principle acted upon in the case of Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., above cited.” (Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 163, 7 S.W. 381, had earlier been mentioned as a case where the judge was authorized to place upon a preliminary injunction a time limitation operative only to such time as a hearing could be held for the determination of the question of whether a further injunctive order would be directed.)

In the instant case a bond was filed to preserve the temporary restraining order directed by the court. Upon the hearing held thereon the court did determine that a temporary injunction should be ordered and the court’s decree was to such effect. It is from such order that this appeal was taken. However, nothing whatever was mentioned in the order relative to any new bond or to the continuation in effect of that originally ordered and filed and prescribed to be operative until the time of the hearing designated. No new bond was ever presented. A ground of complaint presented on the appeal is the absence of such a bond, absence of any direction that such be filed, etc.

We believe that the point of error presenting such contention is sound, and that the case must be reversed. No circumstance exists which could occasion disregard of necessity for further provision for security by way of bond. It was held in Lancaster v. Lancaster, Tex.Civ.App., 277 S.W.2d 824 (Waco Civ.App.,1955), affirmed at 155 Tex. 528, 291 S.W.2d 303 (Tex.Sup.1956), that Article 4649, R.C.S., and Texas Rules of Civil Procedure Rule 684, successor thereto, were mandatory rather than directory. Rule 684, “Applicant’s Bond” sets forth the provision that “Before the issuance of the temporary restraining order or temporary injunction the applicant shall execute and file with the clerk a bond * * * (with language prescribed).”

In the instant case there was no such bond ordered or filed in support of the temporary injunction. We need look no further into the situation. The procedure under which the temporary injunction was secured was defective. The situation requires a remand of the cause to the trial court for a test of applicants’ entitlement to such relief under proper procedure.

Judgment is reversed and the -cause remanded.


author: RENFRO, Justice.

text:
    CEMENT TRANSPORTS, INC., Appellant, v. Nicanor MENCHACA et al., Appellees.
    No. 16852.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 6, 1967.
    Rehearing Denied Nov. 3, 1967.

      Kelly, Morris, Walker & Maynard, and Jearl Walker, Fort Worth, for appellant.
    Spurlock & Schattman, and R. G. Guthrie, Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

Suit was brought in Tarrant County by Nicanor Menchaca and Joshua Menchaca against Cement Transports, Inc., and Garland L. Garrison for damages for personal injuries sustained by Joshua in an intersection collision between a station wagon driven by Frank Menchaca and a cement truck owned by the defendant Cement Transports, Inc., and driven by defendant Garrison.

It was stipulated that Garrison, a resident of Tarrant County, was at the time of the collision in the course and scope of his employment with Cement Transports, Inc.

Cement Transports, Inc., has appealed from an order overruling its plea to have the case as to it transferred to Dallas County, the County of its residence.

Its appeal is based on its contention there was no evidence, or insufficient evidence, whereby suit could be maintained against it in Tarrant County under any exception to the venue statute, Article 1995, Vernon’s Ann.Tex.Civ.St.

The accident occurred about 7:30 P.M., April 23, 1963, in the intersection of N.E. 28th Street and Decatur Avenue in the City of Fort Worth.

Garrison was traveling west on N.E. 28th Street. The Menchacas traveled east on N.E. 28th until they reached Decatur Avenue, at which point they turned north on Decatur with a resultant collision between the cement truck and plaintiffs’ car in the north portion of the intersection.

Plaintiff Joshua Menchaca was seated on the passenger side of the automobile trying to find a suitable program on a radio which he was carrying on his lap. He did not see or hear the truck. He did not know what happened.

Frank Menchaca, driver of the automobile, stopped for a red signal light at Decatur Avenue. When he “looked up” the light had turned green, and he turned left onto Decatur Avenue. He had no conscious recollection of having seen any kind of vehicular traffic approaching from the east. He did not know he had been in an accident until some one told him after he regained consciousness some time later.

Defendant Garrison testified he was traveling west on N.E. 28th Street in his proper traffic lane. He was traveling 30 miles per hour. He braked his truck in case the green light at the intersection changed before he reached it. The light continued green. In his words, “Well, I was coming down to the light and they were coming meeting me, and they turned in the island and made a left turn right in front of me. I mean, that’s just the way it was.”

The witness Rangel testified that while he was traveling west on N.E. 28th Street about eight blocks east of Decatur Avenue, defendant’s truck passed him going west. The truck was traveling about 40 miles an hour in a 35 mile per hour speed limit zone. He was traveling about 30 miles per hour. He was three blocks behind the truck when it reached Decatur Avenue. He was asked, “You can not judge what the speed of the truck was as the truck approached Decatur Avenue, can you?” He answered, “Well, I can’t tell because it was three blocks away. I don’t know that one.” The truck stayed in its “line’1 all the way, that is, the left lane for west bound traffic. He did not see plaintiffs’ car before the collision. He saw nothing unusual before the vehicles collided. “Well, nobody was in the highway but us.”

In our opinion plaintiffs did not produce sufficient evidence of probative force to make out a prima facie case of negligence and proximate cause against defendant Garrison. Thus, having failed to prove a cause of action against Garrison, they could not maintain venue in Tarrant County as to Garrison’s employer, the appellant herein.

It is readily apparent from the record that the venue facts were not fully developed on the hearing. Therefore, we reverse and remand rather than render judgment. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (Tex.Sup., 1936); Sands v. Jones, 415 S.W.2d 724 (Tex.Civ.App., 1967, no writ hist.).

Reversed and remanded.


text:
    DAVIS BUMPER TO BUMPER, INC., and E. E. Davis, Appellants, v. AMERICAN PETROFINA COMPANY OF TEXAS, Appellee.
    No. 7723.
    Court of Civil Appeals of Texas. Amarillo.
    June 26, 1967.
    Rehearing Denied Sept. 5, 1967.

      Herbert C. Martin, Amarillo, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, H. A. Berry, Amarillo, of counsel, for appellee.
   CHAPMAN, Justice.

Appellee, American Petrofina Company of Texas, hereinafter called Fina, sued Davis Bumper to Bumper, Inc. and E. E. Davis upon a verified, sworn account for petroleum products, for rent, for a string of pennants, rental upon a credit card imprinter and' for recovery of attorney’s fees. It also alleged that on several occasions, and particularly on October 10, 1963, it presented in writing such claim to Davis Bumper to Bumper, Inc. demanding payment, but at the time of filing suit, which was more than thirty days from such presentation, no part thereof had been paid or satisfied. As would be suggested by its name, Davis Bumper to Bumper, Inc. is a corporation engaged in various enterprises having to do with the supply of materials for motor vehicles, including that of wholesale dealer of motor fuels. The petroleum products constituting the dealings between the parties consisted of diesel fuel, premium and regular gasoline.

E. E. Davis was included as a party defendant because of a written guarantee he had made to Fina of payment of any indebtedness accumulating from Davis Bump•er to Bumper to Fina to induce it to sell their products to Davis Bumper to Bumper, a family-owned corporation.

In reply to the verified, sworn account appellants, in their Third Amended Original Answer, Cross-Petition and CounterClaim duly filed their sworn denial under Rule 185, Vernon’s Ann.Texas Rules, to the effect that “Plaintiff’s First Amended Original Petition, which is the foundation of Plaintiff’s action * * * is wholly not just or true” except for “ * * * the items as to diesel fuel, string pennants, imprinters and credits on such account.” Their cross-action and counter claim asserted, inter alia, that by the contract between the parties the petroleum products were to meet specifications that would comply with those of the State and would be practicable and suitable for use as fuel in internal combustion engines; that such contract constituted an express warranty that all such petroleum products would be practicable and/or suitable for use as fuel in internal combustion engines; that the fuel did not comply with such written warranty, so appellee was not entitled to recover on the contract. They also alleged, in effect, that during the approximate thirty-day period involved in the deliveries sued upon appellee was advised of the defective products being delivered; that they then promised to deliver the type products contracted for; that they failed to do so, and by such failure caused their customers to cease buying their products to their damage of $52,786.69 actual damages. They also alleged that by its willful and studied delivery of inferior products and its “ * * * willful and maliciously designed course to destroy defendants’ business as a wholesale gasoline dealer,” appellants were entitled to recover from Fina $50,000 exemplary damages.

The case was submitted to a jury upon various issues, which will be later considered as we deem necessary in disposing of the questions raised. Suffice it to say at this time that all parties filed motions for judgment. The jury having found that the premium gasoline delivered during the approximate thirty-day period involved was practicable and suitable for use in internal combustion engines, there is no controversy here concerning that portion of the suit upon the sworn account.

When appellants filed their Rule 185 sworn denial of the account sued upon, thereby invoking a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery or defense, such pleading destroyed the probative force of the verified, itemized account attached to Fina’s petition. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941). This then placed the burden on Fina to prove its case as at common law. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.-Dallas, 1963, no writ).

In Special Issue No. 2(a) the jury found the regular gasoline delivered by Fina to appellants between the dates of January 7, 1963, and February 2, 1963, was not practicable and suitable for use in internal combustion engines, but it also found that through its president, E. E. Davis, it detected such fuel was not suitable and practicable for use in internal combustion engines ; that Davis Bumper to Bumper accepted it so knowing, and sold it to its customers knowing the quality of the fuel being sold. By its first point of error appellants contend there is not any evidence to support the value of the regular gasoline in controversy because the jury found it was not practicable and suitable for use in internal combustion engines, Fina having expressly warranted the delivery of gasoline that was practicable and suitable for use in internal combustion engines.

Both by the wording of appellants’ first point and their argument thereunder they appear to contend (1) that Fina failed in its fundamental requirement to prove the exhibit constituting its verified sworn account, and (2) that it failed to prove, have submitted and secure a finding of the value of the regular gasoline, which they contend could not be of the value contracted for because it did not meet the specifications of the contract.

E. E. Davis, president of Davis Bumper to Bumper, Inc. testified that the prices set out in appellee’s pleadings and the various invoices were the prices his company was supposed to pay for the gasoline, if it were of the proper quality; that they were the prices he had been paying, and that except for the fact he claimed that the gasoline his company received was bad, the items would all be owing to Fina. Documentary evidence introduced substantiates such admissions.

Fina then placed into evidence deposition testimony of C. A. Rankin, who for twenty-four years had been Branch Laboratory Tssting Manager of Ethyl Corporation in its San Bernardino, California, and Tulsa, Oklahoma, laboratories. He testified he made tests of Fina’s regular gasoline from a gallon sent from their Wichita Falls plant received on January 17, 1963; that he followed procedures used by the entire oil industry and accepted by “ * * * each and every category of the oil industry;” that such tests comply with the method of testing published by the Bureau of Mines Technical Paper 323-B and the method of testing approved by the American Society for Testing Materials (A.S.T.M.); that the quality was as good or better than average gasoline for this marketing area; was of excellent commercial quality; reflected no defect or deficiency in quality; and each sample was better quality than required by the minimum standards of the State of Texas and should operate satisfactorily in automobile engines.

We hold that by E. E. Davis’s admissions, the testimony last related, and the stipulations in the record, Fina discharged the burden at least of making out a prima facie case, which has been held sufficient until an affirmative defense is shown. Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.-Houston, 1966, writ ref’d, n.r.e.).

Unquestionably, appellants’ cross-action and counter claim to the effect that the gasoline was not of the quality required by their contract with Fina constituted their affirmative defense of avoidance. “Issues relating to defenses by way of rebuttal or by way of avoidance are regarded as affirmative issues * * * ” Salley v. Black, Sivalls & Bryson, 225 S.W.2d 426 (Tex.Civ.App.-San Antonio, 1949, writ dism’d). Therefore, when Fina made out their case as at common law following appellants’ Rule 185 sworn denial the burden shifted to appellants to overcome that proof by some sort of affirmative defense showing avoidance. Burrus Mills, Inc. v. Hein, supra. If it was appellants’ burden to plead and prove an affirmative defense then we believe it must be said that the burden was on them to secure a submission and affirmative finding on the defense pleaded; i. e., the amount less than the contract price the regular gasoline was worth. This is true even though it should be conceded they have pleaded and proved an affirmative defense. Jefferson Standard Life Ins. Co. v. Curfman, 127 S.W.2d 567 (Tex.Civ.App.-Dallas, 1939, no writ). Where no issues are submitted to the jury and none requested, all controverted issues of fact, raised by pleading and supported by evidence, or which may be deduced by evidence, are waived by the party depending upon the defensive issues. Ward v. Strickland, 177 S.W.2d 79 (Tex.Civ.App.-Dallas, 1943, writ ref’d, n.r.e.).

Additionally, the jury found, with sufficient probative evidence to support such finding, that appellants accepted the regular gasoline for which recovery was allowed during the period in controversy; that Davis Bumper to Bumper through its president, E. E. Davis, detected on January 10, 1963, that the regular gasoline being delivered to his company by Fina at the time was not suitable and practicable for use in internal combustion engines; that after such detection it accepted such gasoline knowing it was not practicable and suitable for its intended purpose; that a reasonable prudent person situated as E. E. Davis, through the exercise of ordinary prudence would have detected the regular gasoline being delivered was not practicable and suitable; that after the time at which a person of ordinary prudence would have made such discovery it accepted the regular gasoline knowing it was not practicable and suitable for use in internal combustion engines; and that Davis Bumper to Bumper sold to its customers the regular gasoline knowing its quality. The evidence shows without contradiction that the regular gasoline in controversy was all sold at a gross profit by Davis Bumper to Bumper.

There is no pretense in the record that the regular gasoline was not of some value. It has been held that if warrant of fitness was breached, the measure of damages therefor was the difference between the market value of the product delivered and that contracted for. “But in such case it is necessary for the purchaser to furnish the court and jury some evidence of the difference in value on which a verdict and judgment may be predicated.” Heisig Rice Co. v. Fairbanks, Morse & Co., 45 Tex.Civ.App. 383, 100 S.W. 959 (1907). Having not discharged their burden, we hold appellants’ first point is without merit.

By Point 2 appellants urge reversible error in rendering judgment for $16,346.00 without a jury finding to support the same and’ contrary to the jury findings in Special Issue No. 2(a) that the regular gasoline was not practicable and suitable for use in internal combustion engines. Subject to the affirmative defense of deficient quality, the amount shown in the verified sworn account revealed the amount due Fina which was rendered by the trial court; i. e., the credits allowed subtracted from the $21,950.11 of goods, wares and merchandise give the sum of $16,346.00 rendered by the trial court, less attorney’s fees and interest. We believe the point has actually been disposed of under the authorities already cited, and in view of stipulation No. 9 in the Distribu-tary Sales Contract. The provision of such stipulation clearly was not complied with, and as a consequence Fina was deprived of its contractual right to advise the buyer the procedure to follow in each case and exercise its option to divert or withdraw from the buyer any shipment upon which claim was made.

In appellants’ argument under their fifth point they admit the jury found Fina did not waive that part of the Section 9 condition of the contract providing: “Fina shall not be liable for any claim, or claims, on account of * * * quality unless before unloading the shipment, the buyer notifies Fina by telegraph.” They then seek to avoid the condition by a contention that “ * * * all of the evidence in the record supports the fact that Fina did waive such provision.” We have studied the statement of facts carefully and are unable to agree that it supports the quote just related from appellants’ brief. The issue was appellants and to support it was their burden. Considering the evidence in the light of the authorities we are compelled to the conclusion that appellants did not establish waiver under Section 9. Mr. Davis Stated he complained to Fina through their Mr. Ford and was assured “ * * * they would amend the gasoline,” but upon further questioning it developed that they received only one other load thereafter. That load was returned and credit given on it. In the Stowers v. Harper case just cited the court held: “Intention is a prime factor in determining the question of waiver. The acts, words or conduct relied .upon to establish intention must be such as to manifest an unequivocal intention to no longer assert the right.” The only load of regular gasoline complained about before unloading was received back by Fina, and that was the last one delivered. Credit was allowed for it. No acts, words or conduct manifesting an unequivocal intention to waive telegraphic notice before unloading any of the regular gasoline claimed to be inferior in quality and upon which judgment was rendered by its sale price are shown in the record. The right to such notice is clearly a contract prerequisite and condition precedent to the prosecution of a claim on account of quality. The second sentence of the No. 9 stipulation would indicate the reason for the requirement under the first sentence thereof; i. e., giving Fina the authority to divert or withdraw from the buyer any shipment upon which claim was made. We believe the jury resolved the question by answering in Special Issue 6(a) that Fina did not follow a course of conduct which would lead a reasonably prudent person in the position of appellants to reasonably believe that. Fina waived Stipulation 9 of its contract which stated it would not be liable for any claim or claims on account of quality unless before unloading the shipment apellants notified Fina by telegraph. It has been held: “One party to a contract will not be permitted to take advantage of his own wrongful failure to perform his part, thereby rendering performance by the other party impossible, and then escape liability.” Dockery v. Durham, 3 S.W.2d 514 (Tex.Civ.App.-Waco, 1927, writ dism’d). Point 2 is overruled.

In appellants’ third point they urge reversible error of the court in rendering judgment for $16,346.00 based upon the jury’s answers to Special Issues 2(b), 2(c), 2(d) and 2(e) and Special Issues 3 and 4. In the issues just mentioned the jury found appellants detected that the regular gasoline being delivered by Fina at the time was not suitable for use in internal combustion engines but accepted it so knowing; that a reasonably prudent person situated as E. E. Davis, through the exercise of ordinary prudence, would have detected its unsuitableness; that from and after the time a person of ordinary prudence would have made the discovery, appellants did detect its unsuitableness but they still accepted it knowing it was not practicable and suitable for its intended purpose; that appellants sold the regular gasoline to its customers knowing its quality; and that any loss or damages which resulted to Davis Bumper to Bumper proximately resulted from appellants’ act of selling the gasoline after it had knowledge of the defects.

None of the parties have cited a case exactly in point on the question presented by tfie jury findings just related. Appellants contend the contract between the parties constituted an express warranty and therefore “ . . . acceptance or non-acceptance thereof was of no moment.” Even if we accept the contention of express warranty, which appellee vehemently denies, the record still precludes defeat of the account sued upon because of appellants’ failure to comply with the condition precedent to his claim for inferior quality gasoline. Had they complied therewith appellee would have had the right and opportunity under the second sentence of Stipulation 9 to divert or withdraw from the buyer any shipment upon which claim of dissatisfaction was made, and this suit, at least in its present form, would not be in court. The issues found by the jury, related in the preceding paragraph, appear to us to indicate the jury took into account Stipulation 9 in answering such issues as they did. The point is overruled.

In Point 5 Davis Bumper to Bumper urges reversible error in not awarding it a judgment for $10,000 found by the jury to be the amount that would fairly and reasonably compensate Davis Bumper to Bumper for loss of profits proximately caused by loss of its gasoline business due to the gasoline not being practicable and suitable for use in internal combustion engines.

The trial court refused to award such recovery for the obvious reasons that the jury also found any damages which resulted to Davis Bumper to Bumper proximately resulted from its selling such gasoline after it had knowledge of the defects and in not complying with Stipulation 9. A recognized text writer on contracts has said: “If the buyer’s own fault or negligence contributed to the injury, as by using the goods with knowledge of their defects, he cannot recover consequential damages, since such damages were under the circumstances not proximately due to the breach of warranty.” Williston on Contracts, Revised Edition, Vol. 5, Sec. 1394, p. 3893. See also Major v. Hefley-Coleman Co., 164 S.W. 445 (Tex.Civ.App.-Fort Worth, 1914, writ ref’d); Stark v. George, 252 S.W. 1053 (Tex.Comm’n App.-1923); Shearer v. Gaar, Scott & Co., 41 Tex.Civ.App. 39, 90 S.W. 684 (1905). Point 5 is overruled.

In Point 4 appellants assert error by the court in awarding attorney’s fees against appellants jointly and severally under Article 2226, Vernon’s Ann.Tex.Civil St. The statute as applicable to the instant case provides: “Any person having a valid claim against a person or corporation for * * * suits founded upon a sworn account or accounts * * * may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

The parties stipulated that $3,000 was a reasonable amount for attorney’s fees if such fees should be found to be recoverable. The thesis of appellants defense to payment of attorney’s fees is that the suit is upon a written sales contract against Davis Bumper to Bumper and against E. E. Davis upon a written contract of guaranty. Therefore, the suit resting upon special contract rather than upon a sworn account, attorney’s fees are not recoverable. The action against Davis Bumper to Bumper was instituted in the nature of a sworn account on one of the seven classes of claims which form a basis for an award of attorney’s fees under Article 2226, Revised Civil Statutes of Texas, if a plaintiff is represented by an attorney. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962). The written agreement appellants say the suit against Davis Bumper to Bumper was based upon became a part of the suit only by way of defense to appellants’ affirmative defensive pleading. The bases of the cause of action were sales on one side and purchases upon the other whereby title to personal property passed from one to the other (regular gasoline, premium gasoline, diesel fuel and pennants) and relation of debtor and creditor was created by general course of dealing. Transactions between parties resting upon special contract as discussed by the Supreme Court of Texas in Meaders v. Biskamp, supra, relied on by appellants, had as its basis a contract whereby Biskamp allegedly sold five leases to Paul Meaders, Sr. upon one of which he was to drill an oil well to a certain depth. For the leases and such drilling Meaders was to pay $25,000. The Supreme Court of Texas said: “The claim of plaintiff against defendant is a claim for the balance of the money due for a sale of real estate (oil and gas leases) and for the drilling of a well to a depth of 4,000 feet. It has been held that a contract for the drilling of an oil well is not included within the definition of a sworn account.” The court also held, * * * a sworn account * * * applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing * * * This rule had its origin in the landmark case of McCamant v. Batsell, 59 Tex. 363 (1883), and appears to have been adhered to by that court ever since. See also Danaho Refining Company v. Dietz, 398 S.W.2d 307 (Tex.Civ.App.-Corpus Christi, 1965, writ ref’d, n.r.e.).

We believe and so hold that attorney’s fees are recoverable against E. E. Davis jointly and severally by virtue of his agreement “ * * * that jointly with the principal and severally I shall be liable and responsible for and shall pay to you all sums that may be due or become due by the principal promptly upon demand, regardless of the sum of the indebtedness, whether the same is represented by open account, notes or otherwise, or whether due at maturity or upon extension or renewal thereof, and that the terms agreed upon by jou and the principal shall be fully binding upon me without notice.”

He thus became contractually liable for attorney’s fees if they are recoverable against the principal. We believe they are.

There appearing to us to be no reversible error, the judgment of the trial court is affirmed.

      . Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958).

      . By supplemental petition in reply to “Defendant and Cross-Plaintiffs’ Third Amended Original Answer, Cross Petition and Counterclaim” Fina pleaded tlie petroleum products sold to Davis Bumper to Bumper, Inc. met specifications that did comply with those provided by the State of Texas in Article 1105, Penal Code, Section (b) of which provides: “Motor fuel or gasoline shall be volatile hydro-carbon fuel, free from water and suspended matter, and shall be practicable and/or suitable for use as fuel in internal combustion engines.”

      . The Distributor Sales Contract between Pina and Davis Bumper to Bumper pleaded in its First Amended Original Petion as Exhibit A and introduced in the trial of the case as P-2 in the exhibits provides, inter alia, as follows:
      “No. 5. PRODUCT SPECIFICATIONS. The petroleum products sold under this agreement will meet specifications that will comply with those of the State in which the designation of each shipment is located. The methods of testing shall be those published by the Bureau of Mines in Technical Paper 323-B, and by the American Society for Testing Materials in effect on this date.
      ⅜ ⅝ ⅜ * ⅜
      “No 9. CLAIMS. FINA shall not be liable for any claim or claims on account of shortage or quality unless before unloading the shipment the Buyer notified FINA by telegraph. FINA agrees upon receipt of such telegraphic advice to promptly advise the Buyer the authority for procedure in each case, but in any event FINA at all times has the option to divert or withdraw from the Buyer any shipment upon which claims is made.” (Emphasis added).

      . The Invoices and Manifests of Fina in the record show the gasoline purchased by Davis Bumper to Bumper from it for the period in controversy came from their Wichita Falls plant except on January 17, 1963, Invoice No. 13359, which came from their Sherrin plant, which the jury found met specifications.

      . Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 262, 240 S.W.2d 751 (1951); Rule 279, Texas Rules of Civil Procedure.

      . 60 Tex.Jur.2d 198, Section 13; The Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Comm’n App.-1933); Hines v. Jordan, 228 S.W. 633 (Tex.Civ.App.-Texarkana, 1921, writ ref’d); Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App.-Tyler, 1964, writ ref’d, n. r. e.).


author: DENTON, Chief Justice.

text:
    Henry L. STAFFORD and Dynadrill, Inc., Appellants, v. Mrs. S. A. THORNTON, Appellee.
    No. 7721.
    Court of Civil Appeals of Texas. Amarillo.
    June 19, 1967.
    Rehearing Denied Sept. 5, 1967.

      Cayton & Gresham, Karl Cayton, La-mesa, Morehead, Sharp, Boyd & Tisdel, Roger C. Henderson, Plainview, for appellants.
    Stovall & Stovall, Frank Stovall, Plain-view, for appellee.
   DENTON, Chief Justice.

Mrs. S. A. Thornton, a widow, brought suit against Henry L. Stafford to recover for damages for land and improvements thereon alleged to have been caused bv blasting operations in a nearby caliche pit. Stafford impleaded Dynadrill, Inc., as a third party defendant. The trial court’s judgment, based on a jury verdict, was rendered for the plaintiff against Stafford for $40,000.00 plus interest, and judgment was rendered for Stafford over against Dyna-drill for the same amount. Both defendants have appealed.

Appellee was the owner of a 320-acre farm in Floyd County. Stafford entered into a contract with the State Highway Department to construct a road in the area and employed Dynadrill to conduct blasting operations in a caliche pit approximately ½ mile west of the property. These blasting operations were conducted at intervals from June 4 to July 20, 1965.

Appellees alleged a cause of action for damages to a brick residence, a frame residence, a barn, one domestic water well, three irrigation wells, and an underground concrete pipe irrigation system connecting the three irrigation wells, was based on the premise appellee is a third party beneficiary under a written contract Stafford held with the State Highway Department; and an alternative ground that the defendants were negligent in causing explosions of such power and intensity as to produce violent shocks to the earth and damage appellee’s land and improvements. In response to special issues, the jury found: (1) that appellee’s property was damaged as a result of the blasting operations; (2A) that the defendant used more excessive charges of explosives than a person of ordinary prudence would have used under the sáme or similar circumstances; (2B) that the use of excessive charges of explosives was a proximate cause of the damages; (3A) that the defendant failed to use utmost care not to endanger the property of appellee; (3B) that such failure resulted in the damage to appellee’s property. “Utmost care” was defined as “that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances”. The jury further found the damages to the Thornton property were permanent; and found the difference between the cash market value of appellee’s property immediately before and after the blasting operations was $40,000.00. It was also found the damage was not caused solely by blasting by other contractors not a party to this suit.

Appellants’ first group of points of error contend there is no evidence and alternatively, insufficient evidence to support the jury finding excessive charges of explosives were used; and that appellants failed to use utmost care not to endanger appellee’s property. In considering the “no evidence” issue, the evidence must be viewed in the light most favorable to the verdict and disregard that which is opposed or contrary to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938.

As stated, appellee’s 320-acre farm was located east of the caliche pit in question. Testimony relative to the exact distances from the pit to the various improvements on appellee’s land was indefinite. There was testimony the “improvements” were approximately 2000 feet from the pit. The two residences were located on the west side of the farm and it appears they were approximately ½ mile east of the pit. The three irrigation wells were in the approximate center of the ½ section and were further to the east of the two residences, and were several hundred feet farther from-the caliche pit. The blasting operations were performed two or three times a week during the interval from June 4 to July 20, 1965. A new brick home was moved onto appel-lee’s premises prior to the blasting and was occupied by her son and family on June 7, three days after the blasting began. Mrs. Thornton occupied a frame house nearby. Members of appellee’s family, a former tenant, and neighbors testified to experiencing the blasts. One testified “it would shake the house”; “You feel the ripple before you hear the blast. Then it seems that the walls of the house would expand and then come together again”. Dishes would be rattled and several saw rocks and debris in the air following the blast. Damage to both residences were described after the blasting by several witnesses. These included a cracked foundation, cabinets on walls loosened, cracked bathroom tile, some outside bricks broken, plaster cracked, roof on the brick house sagged in the middle, and cracked concrete flooring in the barn and garage attached to the frame house. The irrigation wells produced approximately ½ the water produced prior to the blasting. Appellee’s expert witness, a graduate geologist, examined the property and studied maps of the water levels of the surrounding area and measured the water level of appel-lee’s irrigation wells. He testified that the damage to the wells was caused by the blasting.

The blasting operations were described in detail by the sales representative of the supplier of the explosives, and a Dynadrill employee who was the “shooter” on the job. They described the spacing, depth and diameter of the holes, the amount of the explosives used together with the firing delay pattern used during the operation. Some 30-35 holes were used for each “shot” and 3¾ inch diameter holes were spaced in rows nine feet apart with 12 foot spacing between holes. The amount of ammonia-nitrate, dynamite and other materials varied from 824 lbs. per shot to approximately 252 lbs.

It is well settled that liability for damages caused by the use of explosives is dependent upon the existence of negligence in the manner of setting up the explosives. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. Crain v. West Texas Utilities Co. (Tex.Civ.App.) 218 S.W.2d 512 (Ref.N.R.E.). Standard Paving Co. v. McClinton (Tex.Civ.App.) 146 S.W.2d 466. One test of negligence in a case involving explosives is whether an excessive amount of explosives is used. Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636. Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121. This issue was submitted to the jury. The issue included a definition of “excessive” as being the use of a quantity greater “than a person of ordinary prudence in the exercise of ordinary care would have used under the same or similar circumstances”. This definition was approved in the Oswald and Kelly cases.

It is appellants’ contention the burden is upon the plaintiff to show a standard of care to be exercised by one engaged in the use of explosives and a departure from that standard. Appellants insist there is a total absence of evidence to sustain this burden. In support of its position, appellants rely principally upon Dellinger v. Skelly Oil Co. (Tex.Civ.App.) 236 S.W.2d 675 (Ref.N.R.E.). Indian Territory Illuminating Oil Co. v. Rainwater (Tex.Civ.App.) 140 S.W.2d 491 (Error Dis.). Stanolind Oil & Gas Co. v. Lambert (Tex.Civ.App.) 222 S.W.2d 125. Sinclair Oil & Gas Co. v. Gordon (Tex.Civ.App.) 319 S.W.2d 170. These cases were seismograph explosion cases and present different facts from the case at bar. The Lambert case held the doctrine of res ipsa loquitor was not applicable under the facts and circumstances of that case. In the Gordon case the question was whether the plaintiff had sustained its burden to show the defendant was negligent in exploding charges “too close” to plaintiff’s water well. In the Rainwater case there was no finding of negligence. The court held negligence was not shown as a matter of law. In Dellinger, the trial court withdrew the case from the jury and rendered judgment for the defendant. The court held the evidence raised issues of fact and the question of negligence should have been submitted to the jury. These cases do not support appellants’ contention.

There was evidence that simultaneously with the explosions in the caliche pit, appellee’s house shook and one sitting in a chair in the neighboring house felt as if one would “catch hold of the back of your chair and give you a shake with their hand”. Cracks appeared in the brick house and foundation and walls of the frame house and floor of the barn, large rocks “as big as my head or larger” came from the blasts, kitchen cabinets were damaged and the water wells produced much less water of a dirty quality. When the evidence is considered most favorably to the appellee, we believe there was some evidence appellants used more explosives than was reasonably necessary. Kelly v. McKay (supra). Cage Brothers v. McCormick (Tex.Civ.App.) 344 S.W.2d 203 (Ref.N.R.E.). Pelphrey v. Diver (Tex.Civ.App.) 348 S.W.2d 453 (Ref.N.R.E.).

In addition to evidence offered by appellants as to the amount of explosives used, hole spacing, delayed firing patterns and other precautions used, appellants offered other evidence directly in conflict with evidence offered by appellee. A safety engineer inspected and approved the shooting plans; a blastcorder was placed on a neighbor’s property which was some 700 feet closer to the pit than appellee’s and tests showed no vibrations were recorded at that distance. Mr. William Miller, a Geo-science professor at Texas Technological College and Dr. Leet, professor of Seismology and Geology at Harvard testified for appellants. The latter’s qualifications in the field of causes and effects of vibrations produced from explosives were most impressive. Both experts inspected the premises after the blasting. Miller examined the records of area water tables and tested appellee’s irrigation wells. His testimony was to the effect the blasting did not damage the wells. Dr. Leet examined appellee’s property after the blasting, and after studying the blasting patterns, testified the vibrations caused by the blasting in question did not cause the damage to appellee’s property, including the irrigation wells. The jury chose not to accept the opinions of these experts and the other evidence presented by appellants. When all the evidence is considered we are of the opinion there is sufficient evidence to support the jury finding appellants were negligent in using an excessive amount of explosives and that such negligence was a proximate cause of the alleged damages.

Appellants’ next contention is the trial court erred in placing the burden upon them to exercise utmost care not to endanger the property of appellee; challenge the fact the State Highway contract imposes such a duty upon it; and asserts appellee is not a third party beneficiary under the contract. Subject to appellants’ exceptions previously urged, the parties stipulated the Highway construction contract was entered into by and between Stafford as contractor and the State Highway Department; and that the contract contained provisions set out in the plaintiff’s petition. One such material section was: “7.9 Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the contractor shall use the utmost care not to endanger life or property”. The question whether appellee is a third party beneficiary under the contract had been decided against appellants’ contention. In Collins Construction Co. v. Taylor (Tex.Civ.App.) 372 S.W.2d 548 (Ref.N.R.E.), a contract with identical provisions was involved. Although the court was divided in the result, all justices were of the opinion the plaintiff in that case was a third party beneficiary under the contract. However, the question of the extent of the duty imposed by the contract was not before the court and was not decided.

Although we are of the opinion, and so hold, appellee was a third party beneficiary under Stafford’s contract, we are of the further view the contract did not impose a duty to exercise a higher degree of care toward the public than the law itself imposes. No Texas court has passed upon this question. However, in Wymer-Harris Construction Co. v. Glass, 122 Ohio St. 398, 171 N.E. 857, 69 A.L.R. 517, the plaintiff contended a contract with the County Commissioners imposed greater duties upon the contractor in addition to its common law duty to exercise ordinary care. The court held “[s]o we conclude the rule to be that the duty owing toward the public by a contractor in the performance of public work cannot be increased by a contract with a public official, as such, beyond the sum of the legal duty of such public official toward the public and the legal duty of the contractor toward the public”. See also McClendon v. T. L. James & Co., 231 F.2d 802 (5th Cir.). Hansen v. Clyde, 89 Utah 31, 56 P.2d 1366, 104 A.L.R. 943. Oliver v. Pettaconsett Construction Co., 36 R.I. 477, 90 A. 764. Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E.2d 551. We think the better reasoned weight of authorities supports this holding. We therefore conclude the trial court erred in submitting the special issues imposing the duty upon appellant to use utmost care not to endanger the property of appellee. However, in view of other jury findings that appellants were negligent in using an excessive charge of explosives, and that such negligence was a proximate cause of appellee’s damages, such error was harmless and would not warrant reversal.

Appellant Stafford contends there was no evidence and insufficient evidence to impose liability upon him. This contention relates to the relationship between Stafford and Dynadrill. Appellee filed suit against Stafford as the general contractor engaged in highway contract work and while so engaged, so performed the blasting operation which caused the alleged property damages. Stafford impleaded Dynadrill as a third party defendant, and alleged the latter was acting as an independent contractor. It is undisputed Dynadrill was conducting the blasting operations for Stafford. Under such circumstances there arises a rebuttable presumption that the relationship of master and servant exists. Ochoa v. Winerick Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Sup.Crt.). Therefore, the burden of proof that there was an independent contractor relationship is upon the party asserting its existence as a defense to liability. Taylor B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868. Ochoa v. Winerick Motor Sales Co. (supra). Davis v. Mendlowitz (Tex.Civ.App.) 252 S.W.2d 996. There is no evidence in this record to either prove or disprove the independent contractor relationship of the parties. The only references made to this relationship were made in questions propounded to various witnesses. These referred to the fact Dynadrill “was doing the blasting for Henry Stafford” and “you were the subcontractor that Mr. Henry Stafford hired to do the blasting. * * * ” Affirmative answers to such questions fall far short of sustaining the burden of proving an independent contractor relationship. After all parties had closed Stafford moved that he be permitted to introduce testimony relative to the relationship between the parties. This motion was not timely filed and its refusal was not error. In any event, it cannot be shown Stafford has been harmed. The trial court awarded judgment for Stafford over against Dyna-drill for the amount of the judgment awarded appellee.

The next question concerns the damages awarded appellee. Appellee pleaded temporary damages to the two houses, barn, irrigation and domestic wells and underground irrigation systems and in the alternative, alleged the property sustained permanent injuries. The trial court submitted an issue inquiring whether the damage to the appellee’s property was temporary or permanent. The jury found they were permanent and were not required to answer the damage issue conditioned upon the injuries being temporary. The jury, having found the appellee’s property was permanently damaged, determined the damages by finding the difference between the cash market value immediately before and after the blasting operation. This is the proper measure of damages if the land has been permanently affected. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575. Lone Star Gas Co. v. Hutton (Tex.Com.App.) 58 S.W.2d 19. It is equally settled that the same measure of damages apply for permanent injuries to buildings short of total destruction. Crain v. West Texas Utilities Co. (supra). Houston Natural Gas Corp. v. Pearce (Tex.Civ.App.) 311 S.W.2d 899 (Ref.N.R.E.).

Appellant brings forward numerous points of error attacking the method of submission and lack of evidence to support the findings in addition to excessive damages. The burden of appellants’ position is the method used in submitting the damage question deprived the jury of determining whether or not the different alleged damaged improvements were temporary or permanent, and that the manner of submission was contrary to the allegations and proof. In our opinion there was no evidence the injuries to the brick house, frame house and the underground irrigation system were permanent in the sense that they were not repairable. Much of the testimony of the contractor who supervised the building of the brick house dealt' with the repairs of that house, and the-estimated cost required to place the house-in its original condition. The underground irrigation system had been repaired both before and after the blasting at a relatively small cost. Although a geologist testified the damages to the irrigation wells were permanent, the testimony was highly controverted. There was no evidence offered relative to the duration of the damages to the frame house, barn and garage and no testimony was offered concerning cost of repairs to these structures. In fact, neither the barn nor the frame house nor garage were included in the damage issue inquiring if the injuries sustained were temporary.

Although it is settled permanent improvements attached to the realty are considered a part of the realty, the same measure of damages for injuries to improvements and land does not necessarily apply. Damages may be recovered for injuries to improvements attached to the land independently of damages to the realty. Tucker v. Lane (Tex.Civ.App.) 312 S.W.2d 257. The measure of damages for repairable injury to a building is the amount necessary to restore the building to its condition immediately prior to its injury, and interest from the date of injury to the time of trial. Victory Truck Lines v. Brooks (Tex.Civ.App.) 218 S.W.2d 899. Cornell v. American Indemnity Co. (Tex.Civ.App.) 275 S.W.2d 702 (Ref.N.R.E.).

While both measures of damages were submitted to the jury, each was conditioned upon whether the damages to appel-lee’s “property” was temporary or permanent. Under this method of submission, the jury could apply only one measure of damages. This method of submission is not supported by the record. There was probative evidence that the damages to the brick house, frame house, barn and underground irrigation system were temporary and repairable. There was no direct probative evidence these damages were permanent. There was evidence the damages to the three irrigation wells and domestic water well was permanent. There was no evidence the damages to appellee’s “property” which included both the realty and improvements was permanent. The court’s charge authorized the jury to consider elements of damages which were not supported by the evidence. Appellants’ objections on these grounds should have been sustained.

The disposition we make of the case renders it unnecessary to discuss and pass on other points of error appellants have brought forth.

The judgment of the trial court is reversed and the cause remanded.


text:
    John H. JONES, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. 7732.
    Court of Civil Appeals of Texas. Amarillo.
    June 26, 1967.
    Rehearing Denied Sept. 5, 1967.

      Merchant & Barfield, J. Jerry Merchant, Amarillo, for appellant.
    Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellee.
   CHAPMAN, Justice.

Appellant, John H. Jones, sued United States Fire Insurance Company, insurer for Will Rogers Range Riders, Inc., a riding and roping club (his employer on January 2, 1966), to recover workman’s compensation benefits for accidental injuries sustained when his pickup driven by his minor son collided with a train as he and his son were proceeding from Amarillo to Hereford. Appellee insurer’s motion for summary judgment was granted by the trial court and this case represents the appeal therefrom. The sole legal question before us is whether the pleadings, depositions and affidavits established as a matter of law that such injuries were not sustained in the course of his employment for assured. We hold they established as a matter of law that such injuries were not sustained in the course of his employment.

The record made by the summary judgment components shows appellant was hired in July 1965 to care for the club’s grounds, horses and roping steers and he and his family lived on the second story of the Range Rider’s Clubhouse located on the grounds.

For the purpose of this appeal only, ap-pellee admitted: “The employment contract required Jones to. furnish his own workhorse to be used in caring for Range Rider’s property and in working the club’s livestock.” They furnished him one stall for his horse. The club members’ horses and steers were out on pasture at times and had to be rounded up and brought into their stalls to be fed and watered. LeRoy Foster, supervisor of work activities at Range Riders, had told Jones he had to own his own horse. Soon afterwards he bought an eight-year old mare but when he learned Range Riders did not permit mares on the premises, he traded her for a stallion. He later acquired other horses but at the time in question he owned only a fifteen-month old colt he was grazing on wheat pasturage at Hereford. A week or two previous to January 2, 1966, he had sold the last horse he owned and kept at Range Riders for working the club’s animals. On the morning of the accident he “probably borrowed a horse from Mr. McMenamin,” president of the club, to round up animals for feed and water.

Jones was on call seven days a week and it was understood his two teenage boys who lived with him would help around the grounds when needed. They started feeding the horses and steers about 8:00 o’clock a. m. on the named date, Sunday, January 2, 1966, and by approximately 10:00 o’clock a. m. had completed the morning’s chores for Range Riders. Appellant then decided he wanted to go to Hereford and pay for wheat pasturage on two colts, one ten months of age owned by his son and one fifteen months of age owned by him. They were travelling in appellant’s pickup, he was furnishing his own fuel, .Range Riders did not own or have any interest in the two colts they were going to Hereford to pay pasturage on and the colts were too young to ride or serve any purpose in performing appellant’s services of employment.

Mrs. Jones’ deposition showed that she had no reason to believe her husband was going to Hereford on the Sunday morning of January 2, 1966, to do anything for Range Riders or to do anything for them on the way back, but only to pay pasturage on the two colts.

In the supplemental affidavit of appellant shown in the record he stated he would not have had any horses i f he had not gone to work for Range Riders, “ * * * because other than my job out there, I had no use at all for these horses.” He also stated:

“Although Mr. Foster did not personally and orally direct me to go to Hereford on the particular day that I went I understood that it was part of my job to go over there and take care of my own horses, as the club had already told me, through Mr. Foster, that I had to own my own ho'rsés. I sure1 felt-like that I had been directed by the club to go over to Hereford on that day.
“To my knowledge, I was working for the club at the time the accident happened, taking care of my own horses, and that was part of my job.”

Mr. Foster’s affidavit shows he hired appellant “ * * * to take care of the club grounds, horses and livestock, and to do general maintenance work about the premises.”

“ * * * Plaintiff was under my supervision and control as to the work to be done and the details thereof at the club * * * I had no knowledge that Plaintiff was going to Hereford, Texas, or why he was going. The pickup in which Plaintiff was riding at the time of the accident was his personal pickup. The club furnished Plaintiff a pickup to use in his work and about the club grounds. At the time of the accident the trip to Hereford was not a part of the Plaintiff’s contract of employment with the club. The expense of the trip to Hereford on the occasion in question was not paid for by the club. I did not direct or request the Plaintiff to go to Hereford on the occasion in question for any purpose. I did not exercise any control or supervision over the Plaintiff in his going to Hereford at the time of the accident.
“To my knowledge Plaintiff was- not on any mission for or business of the club at the time of the accident.”

“Words and phrases defined” in Article 8309, Section 1, Vernon’s Tex.Civ.St, states:

“The term ‘injury sustained in the course of employment,’ * * * shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

In 1957 the legislature enacted Section lb under Article 8309. The first sentence thereof provides:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.”

Since this is a summary judgment case, we must follow certain rules laid down by the Supreme Court of Texas. Mr. Justice Greenhill speaking for that court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965) has recently spelled' out a number of those rules in the following language:

“The burden of proof is on the mov-ant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup. 1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the mov-ant’s position is not considered unless it is uncontradicted. If such uncontra-dicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law.”

There are also other rules in connection with a summary judgment case we must observe. “ * * * affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.” Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

Obviously, the statements by appellant that, “ * * * I understood that it was part of my job to go over there and take care of my own horses,” * * * “I sure felt like that I had been directed by the club to go over to Hereford on that day,” “To my knowledge, I was working for the club at the time the accident happened,” would not be admissible in evidence upon the trial of the case. “ * * * opinions which are the result of a conscious process of deductive,.rea.s.oping are usually rejected. The results of this ratiocinative process may appear in the form of a statement of the witness’ understanding, impression, or belief, or it may appear in the form of what he thinks, supposes, or considers.” Texas Law of Evidence, McCormick and Ray, 2d Edition, Section 1398, p. 228. See also Hammond v. Hough, 52 Tex. 63, 73 (1879).

If the affidavit, or other summary judgment components, showed such statements sworn to by appellant were facts from his own observation but that his observation was uncertain, or his recollection was unclear, the textual authority from which we have just quoted indicates a witness “ * * * may qualify his testimony by the use of such phrases as T believe,’ T think,’ ‘It is my impression,’ without detracting from its admissibility.” Such exceptions to the first quoted general rule under such textual statements do not apply here and appellant’s statements as used in his affidavit that “ * * * I understood,” “I sure felt like,” and “To my knowledge” would in our opinion not be admissible on the trial of the case on its merits and are therefore not proper for us to consider on this appeal. Tobin v. Garcia, supra.

It is uncontradicted in the record that the horse appellant was required to keep should be useable for the purpose of working the club’s livestock and that the fifteen-month old colt was not such an animal on January 2, 1966. It is also uncon-tradicted that Mr. Foster was appellant’s supervisor as to the work to be done and the details thereof; that he had no knowledge appellant was going to Hereford on said day, or why he was going; that the club furnished him a pickup for his duties in connection with his employment; that he was in his own pickup when injured and the expenses of the Hereford trip were not paid by the club; that he did not direct Jones to go to Hereford on the occasion in question and he exercised no control or supervision over appellee in his going to Hereford. We are not considering Mr. Foster’s statement to the effect that at the time of the accident the trip was not a part of the contract of employment. Such statement was a legal conclusion and would not suffice in establishing grounds for a summary judgment. Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App.—Dallas, 1953, writ ref’d); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962).

Applying all the rules that have been established by our Supreme Court on inferences that must be indulged against a movant for summary judgment, and the rules of evidence above related, this record reveals by all the summary judgment components that there is no genuine issue as to any material fact in the record before us. It is without contradiction in the record that the requirement for furnishing a horse by appellant was for its use in and about the pasture and premises in working the livestock belonging to Range Riders. One stall was furnished him for such type horse. The fifteen-month old colt simply served no purpose in that connection. This being without contradiction, assuming the hazards of street and highway travel to pay for his pasturage was outside the course and scope of his employment. As a general rule an injury received while using public streets and highways by an employee is not compensable because not incurred in the course of employment as required by the statute. Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (1963). “The rationale of this rule is that in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.” Texas General Indemnity Company v. 'Bottom, supra. None of the prerequisites of either Section 1 or Section lb of Article 8309 are present in this record. Under the rules announced in Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745 (Tex.1965) and Texas General Indemnity Company v. Bottom, supra, construing Sections 1 and lb of Article 8309, appellant at the time of his injury was not in the course of employment for Range Riders on his trip to Hereford to pay pasturage on a fifteen-month old colt which contributed nothing to his employment.

The summary judgment rendered by the court below is affirmed.