author: BATEMAN, Justice.

text:
    Glenn A. TYLER, Appellant, v. C. A. McDANIEL et al., Appellees.
    No. 16439.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      Wm. Brode Mobley, Jr., Corpus Christi, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, W. O. Shafer, Odessa, Leachman,
    Gardere, Akin, Porter & DeHay and George P. Gardere, Dallas, for appellees.
   BATEMAN, Justice.

Appellant Glenn A. Tyler sued appellees C. A. McDaniel and L. A. Beecherl, trading as McDaniel and Beecherl Com-' pany, to recover damages for personal injury. The Standard Insurance Company intervened to recover sums it had paid to and for Tyler under the Workmen’s Compensation Act. The court rendered summary judgment that plaintiff and intervenor take nothing. They both gave notice of appeal but only Tyler perfected his appeal.

A summary judgment is authorized under Rule 166-A, Vernon’s Texas Rules of Civil Procedure only when there is no genuine issue of material fact, and the burden of demonstrating the absence of such an issue is upon the movant. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. In determining whether this burden has been carried, the reviewing court must view the evidence in the light most favorable to the party opposing the motion and resolve all doubts as to the existence of a genuine fact issue against the party moving for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562. A careful study of the record in the light of these rules persuades us that the summary judgment was correct and should now be affirmed.

Facts

Appellant was severely burned when a metal guy wire which he was handling came in contact with a highly charged, uninsulated electric wire overhead. This occurred while appellant was on premises occupied by appellees under an oil and gas lease. Appellant was an employee of Texas Oil Well Service Company. He alleged that he was a member of a four-man crew working for said company in the pulling of tubing and other work on an oil well owned by the appellees, and that this work was pursuant to a contract between his employer and ap-pellees. Additional facts presented to the trial court at the hearing of the motion for summary judgment are thus summarized in appellant’s brief:

“Although appearing to be lengthy in nature, the Appellant desires to set forth for the benefit of the Court, all of the facts at his disposal and to his knowledge. Therefore, the verbatem (sic) statements as contained in the Appellant’s affidavits, in opposition to Ap-pellee’s Motion For Summary Judgment, as well as the paraphrasing of facts to be considered by the Court, will be set forth as fully and as completely as is possible.
“Answers, pursuant to questions asked of Glenn Tyler, as set forth in Appellee’s Motion For Summary Judgment, are that:
“He had been doing well servicing work for something like nine (9) years before this accident happened; that he would consider himself an experienced well servicing man, and he knew just about what it was all about to do work of this kind; that the office of the Texas Oil Well Servicing Company was approximately a quarter mile or a half mile from the McDaniel-Beecherl lease where he was injured. He didn’t remember whether he could see the lease from the yard or not, it wasn’t too far. He might have seen it, but he didn’t know. He knew that he was going to the location about six o’clock on the morning of the accident, which was on June 5th, 1961. He considered Mr. Ed Roberds his boss. He was on a four man crew consisting of Hightower, Frank Hull and Cecil Hull. Hightower and he went in the pulling irnit and the Hull boys went in the pick-up truck to the location; that'the location was not too far off the road; that while they were standing in front of the office, before going to the well, Mr. Ro-berds said something about high lines around the well. He remembered that Roberds said that there were high lines at the well, watch it; that he took it to mean that he was to watch out for high lines around this location. He understood that high lines are electric lines and that they were around the location and he was to watch out for them. Mr. Roberds hollered this out as they were leaving the yard and he told the whole crew. He did not remember the exact time of the accident. Hightower backed the truck almost to the well and then they went out to the pick-up truck and changed clothes. They hadn’t been on the lease more than thirty minutes or an hour and it hadn’t been more than thirty minutes or an hour since Mr. Roberds had told them to watch out for the lines. .As they drove on the lease they had to drive under the high lines, under some of them. He saw two (2) that they had to go under, (meaning they had to drive: under) As they got out of the truck he could see the high lines; they were not hidden, but he did not remember how close they were to the location. He knew what the lines were and knew that they were electric lines and knew that they were dangerous and he had known that all of his life. Mr. Hightower did not say anything about the taires after they were on the location, nor did any of the other members of his crew; they did not even talk about them anymore. There wasn’t any need to talk about it because they knew they were there¡ and nobody had to tell him, and nobody had to tell him high lines were dangerous because he knew that. After arriving at the location, Hightower parked the truck himself and nobody told him where to park the truck. He picked out where to park it himself. Tyler could see where he had parked it; Tyler didn’t tell him to move it or anything like that; Tyler said nothing to him about moving the truck. No one had told Tyler that the electricity had been cut off and as far as he knew it was on." (Italics ours)
“Glenn Tyler has submitted a sworn affidavit, repudiating the deposition, which was taken in Galveston; that his deposition was made during the time he was undergoing plastic surgery and medication; also, since his injuries, and up to the time that he had given the deposition, he had had very horrible nightmares and hallucinations as a result of the injuries; that he had heard that he had been warned by several people, and that he felt that he must have believed at the time of the deposition, that he had received a warning. However, since he is in a more rational state of mind, he recalls that he did not hear any warnings from this dangerous condition that existed at the well, either before going to the site where the accident occurred, or after arriving at the site where the accident happened. He states that the main reason he did not hear any warnings from anyone was due to the fact that he had been hard of hearing since 1949. He went to the Veterans Hospital in Temple by reason of his defect in hearing and was given a hearing aid at that time. He was supposed to have worn it at all times, hut didn’t on this particular date because it would interfere with his work. At the time of the accident, he did not have it on. Marvin Hightower, who was in charge of the crew, knew that he was hard of hearing. He further states that Mr. Ro-berds, his boss of the Texas Oil Well Services, in Odessa, Texas, knew that he was hard of hearing, and that the two (2) Hull boys knew that he was hard of hearing; that, therefore, he did not hear any warnings of any kind from anyone the morning of the accident, because he was not wearing his hearing aid at the time. He stated that he knew his work, and knew what he had to do, and no one had to tell him how to do it after he got out on the well site; that because many people had told him that he was warned, he felt that in his own mind he must have heard a warning, but, that it would have been almost impossible for him to have heard any warning, because he did not have his hearing aid on at the time of the accident. He stated further, that it could have been that the reason he did not see the lines was because of the sun coming up in the East, and because of an optical illusion which might have been created. He states further, that it was the first time that he had been on this lease, and the first time he had been around this particular well; that he had no previous knowledge whatsoever of the condition of the well, nor exactly where the high lines were situated around the well, that at no time did anyone tell him that the electrical lines were directly over the well that they were working on, nor did anyone tell him that the lines were not insulated.
“Glenn Tyler’s affidavit as to the defect in his hearing is substantiated by a certification by an attending physician, Roland O. Peters, M.D., signed the 2nd day of August, 1949, to the effect that he did have hearing trouble; that it seemed to be getting worse, and that his diagnosis was a ruptured tympanic membrane, middle ear deafness, progressive.
“Glenn Tyler submitted a subsequent affidavit wherein he states that he had been employed by Texas Oil Well Services Company since April, 1961, (approximately two (2) months before the accident) ; that he was instructed to go with the pusher, Marvin Hightower, to the McDaniel-Beecherl lease on the morning in question, at about the time in question, and that they were to pull rods and change a pump on the lease; that the work usually takes three or four hours to complete; that the mast pole was raised, and a cable extended over the end dropping near the ground and the cable is used to pull the rods and do other work on oil wells; that the mast pole is equipped with four (4) guy lines and the guy lines are usually used to secure the pulling unit or truck after the mast pole is raised; that after arriving at the lease, he got out of the pulling unit and walked over to the pick-up truck and changed clothes; that he knew that the first thing to be done was to stabilize the mast pole on the back of the truck; and that this is done by attaching the guy lines to the ‘deadmen’, which are provided near each well that he has ever worked on, and which are usually placed there on the location at the time the well is completed, for such purposes as this. When he got out of the truck he saw where the ‘deadmen’ were located, so he put on his gloves and took hold of the guy line, which was to be fastened to the ‘deadman’ to the West of the well, and was going in that direction when, apparently, as he was walking, the guy line came into contact with an electric line nearby. He said that as he drove upon the lease he saw a line which appeared to be an electric line as he entered the lease; that electric lines such as these are a common site (sic) everywhere that he goes; that he paid them no particular attention as to their location above the well or whether or not they were insulated or whether or not they were energized or at the time carrying electricity, and that he could not know the amount of voltage if they were carrying electricity; that there was nothing to indicate to him that they were any more dangerous than ordinary electric lines which are used all over town; that he did not see any big H frames which support highly electric transmission lines, nor was there indication that these were anything but ordinary electric lines like the ones that are attached to his house, which are insulated and safe to be around; that he was putting on his gloves getting ready to attach the guy line to the ‘deadman’, the ‘deadman’ being about thirty (30) to forty (40) feet from the truck; he did not notice, and it was not obvious to him, that the electric lines were almost directly over the well; and even if he had noticed them, he did not notice if they were insulated or not, or whether they were carrying electricity. No one had warned him that in merely attempting to attach a guy line onto the ‘deadman’ that he would be injured the way that he was; that as he noticed the ‘deadman’ on the ground, which he was to tie the guy line onto, he assumed that since it was located at that particular place that it would naturally be safe to tie the guy line on to it. That no one warned him that the ‘deadman’ was in a dangerous place, no one warned him that merely tying a guy line onto the ‘deadman’ that was placed in the ground for that purpose would be dangerous. He said that in his work he knows that ‘deadmen’ are used to tie guy lines onto, and knows that simply tying a guy line onto a ‘deadman’ is not in itself dangerous ; that there was nothing to lead him to believe that tying a guy line onto this particular ‘deadman’ would be any different from tying a guy line onto any ‘deadman’ in any oil field. And since the ‘deadman’ was there for that purpose, he naturally assumed that it would be safe to tie it on where it was located; that it never would have occurred to him that the ‘deadman’ would be placed in such a location that the guy line that he was carrying could in any way come in contact with an electric line. This was the first time he had ever been on the lease; that he did not know where the ‘deadmen’ were until he got on the location itself; that he did not notice, nor was it obvious, that the lines were almost directly over the well; that he had only been on the location a few minutes when the accident ■occurred. He further states that although he did not know it before, or at the time of the accident, that from what he has heard and learned since the accident, that he has never been on, heard of, or seen a lease so arranged where high voltage electric lines are in such proximity to an oil well where work is to be done, nor had he ever seen a ‘deadman’ located in such a position that a workman had to walk under the ■electric lines to tie the guy line onto a ‘deadman’.
“It is further stipulated by and between the parties hereto that the Ap-pellees, McDaniel and Beecherl, were the owners, operators, and occupiers of the lease, the well, and the electrical lines at the location in question; that the place where the guy wire, which Tyler was carrying, came in contact with the electrical line, was uninsulated ; and, it was further stipulated between the parties that a similar accident had happened at the same location approximately ten (10) months prior to the time Tyler was injured, at which time a guy line came in contact with an electrical line and burned the electrical line into (sic).
“For the purpose of showing the warning, the Appellees submitted the affidavit of E. H. Roberds, the employer of Glenn Tyler on the date of the accident and his affidavit is substantially as follows: He stated that he was the general manager and part owner of the Texas Oil Well Services, Inc., and had been such for some period of time pri- or to the accident; that Glenn A. Tyler was employed by the Texas Oil Well Services on the day of the accident, and had been so employed for some time prior thereto; that he was known to be an experienced oil well service worker and was familiar with the work to be done, and was familiar with the work that was going to be done at the time he received his injury. He states that he, Roberds, was familiar with this lease and the location of the high lines and electrical lines incident to its operation. On the morning of the accident, he advised his crew, including Tyler, that the work was to be performed on the lease that day; that the pulling unit would have to be stabilized by tying the guy wires to ‘deadmen’; that he warned the entire crew, including Tyler, with reference to the high lines on this particular lease and the dangers incident to the high lines, and instructed them as to the manner in which they could avoid in (sic) making contact with the high lines. The crew went to a nearby coffee shop to drink coffee, and, when they returned to the yard to go to the location, Roberds again warned the entire crew to watch out for the high lines and electrical lines. He further states, that all the high lines and electrical lines are plainly visible and it is necessary to drive under one or more of the high lines in order to get to the location to perform the work; that it would be necessary for a man, in effect, to have to hide his eyes in order not to see the high lines and electrical lines at the location. That the high lines are not covered with any type of insulation and is visible to anyone who looks at the lines. That there was ample room on the lease to perform the work that was needed to be done; and that his crew had done work requiring the use of a pulling unit on many occasions prior to the time of the accident; that the ‘deadmen’ on the lease were adequate to stabilize the pulling unit and it was not necessary to walk under the lines to attach the lines to the proper ‘deadman’. The only way it is possible to make contact with a high line through a guy line is to attempt to attach the guy line to the wrong ‘dead-man’. If this is done, then it is necessary for the man carrying the guy line to walk directly under the high line which is in absolutely plain sight. (Attention is called to the Court at this point to the Plat of the location in question prepared by an engineer and submitted as an exhibit for the purposes of this appeal. The plat, as certified, shows three (3) ‘deadmen’ at the location and two (2) of the ‘deadmen’ being in such a position that were a pulling unit parked in the location, which it was parked by Hightower, it would necessitate a workman walking under the electrical line twice in order to tie guy lines onto the ‘deadmen’ which were placed on the lease for that purpose. Therefore, the physical facts as shown by the plat are in direct conflict with Roberds statement. The plat shows conclusively that a workman must walk under the electrical lines to reach the right ‘deadman’. There is absolutely no other way for the guy lines to be attached to the right ‘deadman’.) Roberds further stated that he fully understood and appreciated the danger incident to the high lines on this particular lease, as well as on any other lease, and knows from common experience that high lines are dangerous. He stated further that he understood, on the occasion of the accident, the electricity had not been cut off and as far as he knew it had never been cut off while they were performing work on the lease prior to the time of the accident.” (Italics ours)
“Mr. E. H. Roberds, signed another affidavit, which is filed in this record, wherein he further stated that, he had warned the crew about the dangerous condition that existed on the McDaniel-Beecherl lease and that he warned them repeatedly because of this dangerous condition. The electric lines, running almost directly over the well which was being worked on, made this well, not only extremely dangerous and hazardous, but it was the most dangerous well, because of the electrical lines, that T have ever had a pulling unit working on’. He further stated that he didn’t know of any other well more dangerous than this one was at the time Glenn Tyler was injured, and stated further, without question, because of the electrical lines overhead, ‘It was the most dangerous and hazardous location that one of my pulling units had ever worked on’. He stated that in pulling tubing or doing other work on the well where Tyler was injured, the electricity would only have had to have been turned off for a few hours. That each time that he had a pulling unit on the well after Glenn Tyler was injured, that McDaniel and Beecherl had insisted that the electricity be turned off in the field; that he either had called the Texas Electric Company to turn off the electricity or McDaniel and Beecherl had instructed him. to call the electric company to have the electricity turned off, and, further, that he had never sent a crew on that location since the accident unless the electricity is turned off.”

After commenting on what is shown by several photographs and a topographic plat of the: lease, the summary of the evidence in appellant’s brief continues:

“The extremely dangerous location of this particular well, as alleged in Appellant’s First Original Amended Petition, and as is also stated by his employer, Mr. E. H. Roberds, is further substantiated by Mr. Homer Steen. Mr. Steen, by virtue of his affidavit, states that: He is a resident of Odessa, Ector County, Texas, and at the present time works for the Chestnut Well Service and Company, and has worked for that company for approximately four (4) years. He stated that he had worked for several oil well servicing companies during the last thirty (30) years and has in excess of thirty (30) years experience in working in oil fields, around oil wells, and servicing wells. He states that he is familiar with the McDaniel-Beecherl lease in Odessa, Texas, where the man, who he understands is Glenn Tyler, was injured; that he had worked on this lease several times in the past and that he was aware of its dangerous condition. He states that the electrical wires over some of the wells on this lease make it very dangerous and hazardous. He states that, in fact, T would consider it one of the most dangerous and hazardous leases on which I have ever worked. The reason this lease is so dangerous is because of the electrical lines being in such close proximity to the oil wells we work on. I have not worked on a more dangerous lease in my life. This lease was not safe when I worked on it before, and I do not consider it to be safe at the present time. From my experience, it is my opinion that any time work is to be done on wells on this lease that the electrical current should be cut off so that the work could be done more safely’.
“In addition to the fact that this work was ordered by the Appellees, McDaniel and Beecherl, and that the crew, of which Tyler was a member was instructed to go to this lease to do the work for the Appellees, it could be unquestioned that the Appellees knew of the work to be done by virtue of their instructions to the Texas Oil Well Services, Inc., and for the further reason that their assistant pumper, Mr. W. C. Cousins, was present on the lease when the accident occurred. By affidavit submitted by Mr. Cousins, and filed herein, he states substantially that he, too, lives in Odessa, Ector County, Texas, and that on Juné 5th, 1961, he was employed by the regular pumper of the McDaniel-Beecherl Company as an assistant pumper; that he was working on the lease in Ector County where Glenn Tyler, as an employee of the Texas Oil Well Services Company, was working at the time he was injured. He states further, that he was not at the location when the crew arrived, but, he got there later for the purpose of instructing, assisting and directing them in getting set up, and to get the work started. He states that they were to pull rods and to do other work at this location; that part of his duty was to remain at the job site to assist or direct the activities of the crew, should it be necessary. He states that he was present and working in such capacity at the time Glenn Tyler was injured; that since this was a very dangerous location, he was instructed by Weldon Thompson, the regular pumper for the McDaniel-Beecherl Company, to be present at the job site so T could suggest, direct and supervise the work that was to be done. We had been on the location only a very few minutes when the accident occurred.’ He states further that he had seen pictures of the location and that the pictures of the location are true and correct reproductions of the location where the injury occurred, and that the injuries to the face of Glenn Tyler were accurate reproductions of the injuries which he had seen, which were sustained by the said Glenn Tyler.
“Mr. Vern Foreman, co-owner of the Foreman Electric Company in Odessa, Texas, also signed an affidavit, which is filed herein; wherein he states that he is the co-owner of the Foreman Electric Company in Odessa, Texas, and that he has been in the electrical business for ten (10) years, having had experience with all phases and types of electricity, lines, transformers, fuses, ‘hot wire clamps’, and other types of electrical work and experience in his business, including electrical lines and connections in oil fields and for domestic uses. He states that on August the 3rd, 1960, his company replaced a high power electric line, which had been burned into (sic), on the lease owned and occupied by McDaniel-Beecherl in Odessa, Ector County, Texas. (The Appellees had further stipulated that this accident occurred at approximately the same location where the Appellant was injured) Foreman states that this line is called, and is known as, a distribution line, and that before repairing this line it was necessary to call the Texas Electric Company in Odessa to cut off the electricity on the broken line and the other two (2) lines which extended into the lease on the same pole. That the two (2) remaining lines continued on and were connected to the transformer right in back of the well; that Texas Electric Company sent their man out to turn off the electricity in the field and in particular to turn off the electricity on the line on which they were working. That they (Texas Electric Company) did not charge him any money for turning off the electricity. That this was done by the employee of the Texas Electric Company disconnecting ‘hot wire clamps’ or ‘jumper clamps’ which were connected to these three lines. It took the employee from the electric company approximately fifteen (IS) minutes to disconnect these ‘hot wire clamps’ (the ‘hot wire clamps’ are shown in the pictures which were submitted as exhibits in this cause.) After this had been done, the lines extending into said lease, and in particular, the line upon which they were working which had been burned into (sic), was completely de-energized and safe; that the other two (2) lines which were parallel to the broken line, all being attached to and extending from the same electric pole, were also safe, for the reason that all of the electricity had been cut off; that the repair work on the line could not have been completed unless the electricity had been turned off. He further states that it is a very easy matter to disconnect the ‘hot wire clamps’ and de-ener-gize the lines and it takes very little time. His total bill for repairing the line that was cut into (sic), was $53.11.”

Taking the position that appellant’s summary of his own deposition testimony was not quite complete, appellees call our particular attention to the following excerpts from that testimony, which they say was not denied in either of appellant’s two subsequent affidavits:

“Q. As you drove up there in the truck, Mr. Tyler, were you driving or Mr. Hightower driving?
“A. Mr. Hightower.
“Q. As you drove up could you see the highline Mr. Roberds had told you about ?
“A. Yes, sir. We had to go under them.
”Q. You had to go under them?
‘A. Under some of them.
“Q. So you could tell there were high lines there just like Mr. Roberds said ?
‘A. Yes, sir.
“Q. And you saw some of them, of course, as you went under them?
“A. I seen two we had to go under.
“Q. And then, when you arrived at the location there, you got out of the truck, did you not ?
“A. Yes, sir.
“Q. And when you got out of the truck could you see these high lines plain then?
“A. Yes, sir.
“Q. They weren’t hidden or anything, were they?
“A. No, sir.
“Q. Were they strung pretty close to the location?
“A. I don’t remember how close they was to the location.
“Q. You just remember that you could see them plainly?
“A. Yes, sir. Because we had to go under them, one line.
“Q. And, also, Mr. Tyler, there wasn’t any confusion about what they were; you knew what they were ?
“A. Yes, sir, I knew what they were.
“Q. You knew they were electric lines?
“A. Yes, sir.
“Q. And you knew that was dangerous?
“A. Yes, sir.
“Q. You have known all your life not to get into high lines?
“A. Yes, sir, I did.
******
“Q. Did Mr. Hightower say anything else to you about the wires after you got there on the location?
“A. No, sir.
“Q. Did either one of the Hull boys say anything about the wires after you got on the location?
“A. No, sir.
“Q. Did you all talk about them any more?
“A. No.
“Q. There wasn’t any need to talk about it Mr. Tyler?
“A. No sir.
“Q. You knew they were there ?
“A. Yes, sir.
“Q. And nobody had to tell you?
“A. No, sir. Just outside the office there.
“Q. I say, you didn’t have to have anybody tell you they were there; you knew they were there?
“A. Yes, sir.
“Q. And needn’t anybody tell you a high line was dangerous, because you knew that?
“A. Yes, sir.”

Opinion

To recover against appellees the appellant had the burden of showing that they breached some duty which they owed him. They did not owe him a duty to make special preparations for his safety, or to alter the condition of the premises, or to change their methods of operation. Having no right to enter appellees’ premises except with their consent, all he had a right to expect was knowledge of conditions to be encountered thereon so that he could make an intelligent choice as to whether the advantage to be gained by entering would justify the incurring of the risks thereof. Harvey v. Seale (Tex.1962), 362 S.W.2d 310. Having decided to enter, he must be held to have subjected himself to the risk of injury from such conditions, provided there were no unknown hidden or latent dangers to entrap him. As to these, there was a duty on the appellees to warn him; but under the law if such an invitee knows of a dangerous condition to be encountered on the premises, and appreciates the danger thereof, there is no duty on the owner to warn him and he is held to have voluntarily exposed himself to the risk thereof and cannot recover. The same result is reached when the danger is so obvious that the invitee must be charged in law with knowledge or appreciation or both. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 394; Halepeska v. Callihan Interests, Inc. (Tex.1963), 371 S.W.2d 368; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; Rittenberry v. Robert E. McKee, General Contractor, Inc., Tex.Civ. App., 337 S.W.2d 197, wr. ref. n. r. e.; Western Auto Supply Co. v. Campbell (Tex.1963), 373 S.W.2d 735.

In his deposition testimony the appellant admitted (1) that prior to going upon ap-pellees’ premises he was warned by his employer of the presence of the electrical wires overhead and the danger of coming in contact with them, and (2) that as he entered appellees’ premises he saw at least two of the electrical wires, and when he got out of the truck he could see the high lines “plain”, as they were not concealed; that he knew the wires he saw were high lines and were dangerous, and he did not need to have anyone tell him they were there because he knew they were there and that they were dangerous.

Appellant repudiated part of what he had sworn to in the deposition, and insofar as the contents of his subsequent affidavits differ from what he said on the deposition, a fact issue is presented and that portion of the deposition no longer establishes the absence of a fact issue. As said by our Supreme Court in Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562: “If conflicting inferences may be drawn from the deposition and from the affidavit of the same party, a fact issue is presented.”

An examination of the foregoing sum-marization by appellant of his own affidavits discloses that, while he denies therein that he heard the warnings given him by his employer, Mr. Roberds, he does not deny the truth of his deposition testimony to the effect that he did not need to be warned of the presence of the electric high lines as they were in plain view, he saw them and knew they were there, and what they were, and that they were dangerous. (It is common knowledge that such lines are dangerous. McGinty v. Texas Power & Light Co., Tex.Civ.App., 71 S.W.2d 354, wr. ref.)

It is our view that' under the' rules announced in the foregoing cases, the undisputed facts presented to the trial court showed clearly that, regardless of whether he heard the warnings of his employer, the appellant actually had knowledge of the presence of the electrical lines and appreciated the danger of coming in contact with them. That being true, volenti non fit in-juria is applicable and it must be held that appellees were under no duty to warn appellant of the condition. As said in Halepeska v. Callihan Interests, Inc., supra: “* * * there is no duty to warn a person of things he already knows * *

But even if we be mistaken in the above, we would in any event be constrained to hold, under the undisputed facts, that if any duty rested upon appellees to warn appellant of the dangers involved in coming on the lease, that duty was discharged. It is apparently the law in Texas that an owner or occupier of property is under a duty to warn the employees of an independent contractor who has undertaken to do work on the property, of hidden or inherent dangers on or in that property, and that such duty is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger. That is the unequivocal holding of the United States Court of Appeals, in Gulf Oil Corp. v. Bivins, 5 Cir., 1960, 276 F.2d 753, 758, cert. den. 364 U.S. 835, 81 S.Ct. 70, 5 L.Ed.2d 61, followed by the same court in Turner v. West Texas Utilities Co., 290 F.2d 191.

The Texas authorities on this point are few and not entirely harmonious. It had been held in Proctor v. San Antonio Street Railway Co., 1901, 26 Tex.Civ.App., 148, 62 S.W. 938, 939, wr. ref., that the independent contractor owed the duty to warn his employee, but that no such duty rested upon the owner. The Supreme Court in 1924, answering certified questions, announced a contrary rule in Galveston-Houston Electric Ry. Co. v. Reinle, 113 Tex. 456, 258 S.W. 803, 806. However, we do not find this Reinle case cited in support of this particular holding a single time in the more than forty years since its publication. The duty of an owner or occupier of premises to warn the servant of an independent contractor of hidden or inherent dangers was recognized in Smith v. Henger (1950), 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853, and Roosth & Genecov Production Co. v. White (1953), 152 Tex. 619, 262 S.W.2d 99, hut the exact question now before us was not decided in either of those cases. They were followed by Nance Exploration Co. v. Texas Employers’ Ins. Ass’n (1957), Tex.Civ.App., 305 S.W.2d 621, wr. ref. n. r. e., cert. den. Flowers v. Nance Exploration Co., 358 U.S. 908, 79 S.Ct. 235, 3 L.Ed.2d 229, which involved facts quite similar to those of this case. It was held unequivocally that, since the injured workman’s superiors knew of the danger, he must he held to have also had knowledge of it.

We are quite well persuaded that, in principle at least, the rule of Bivins and Nance Exploration Company is correct. To hold that an owner or general contractor must warn each individual workman employed by a subcontractor of hidden or inherent dangers in the property, even though those in charge of the work for the subcontractor have full knowledge of such dangers, in our opinion, “would result in imposing a standard of duty exceeding reasonable hounds.” Storm v. New York Telephone Co., 270 N. Y. 103, 200 N.E. 659, 662.

It appears without controversy that Tyler’s employer E. H. Roberds was thoroughly familiar with the premises, the overhead high lines and all of the dangers thereof. We therefore hold that this knowledge of Roberds was sufficient to discharge any duty resting upon appellees to warn Tyler.

Appellant contends that there was a “double duty” resting upon appellees; i. e., a duty not only to take such precautions as a reasonably prudent person would take to protect his invitees from dangers which are not open and obvious, but also to warn them thereof. As we understand this position, it is in practical effect that appellees owed Tyler the “double duty” of having the electricity disconnected and of warning him that it had not been disconnected. We are unable to follow this reasoning. Performance of the first alleged duty would clearly eliminate the second, and performance of the second would obviate liability for nonperformance of the first. That these are alternative, rather than double, duties is clearly held in Western Auto Supply Co. v. Campbell (Tex.1963), 373 S.W.2d 735, 736, and announced in Restatement of the Law of Torts, Sec. 343.

Tyler admitted knowing of the dangerous high lines extending across the lease, also that there was no need to warn him of what he already knew. This, then, leaves the sole question: Was there a duty on appellees to exercise any degree of care to protect Tyler from the danger of bringing the guy line he was carrying into contact with one of the high lines? We think not. Tyler admitted that, as far as he knew, the electricity was “on” when he began his work under the lines. As said in Moore v. Texas Company, Tex.Civ.App, 299 S.W.2d 401, 403, wr. ref. n. r. e, “The appellee was under no duty to warn appellant of any transitory dangers arising during the performance of the work. The owner of the premises is under no duty to the employee of an independent contractor to see to it that the work is done safely. * * * Union Tank & Supply Co. v. Kelley, 5 Cir., 167 F.2d 811, 815.”

Therefore, whether appellant’s injuries be considered as arising from an unsafe condition of the premises or from the manner of the performance of the work, they cannot be said to have arisen from a breach of any duty owed to him by appellees. The appellees have carried the burden of showing that there was no genuine issue of material fact in this case, and the summary judgment in their favor is therefore

Affirmed.

       This refers to Tyler’s oral deposition taken while he was a patient in a hospital in Galveston. He was attended by his wife and Ms attorney, and testified that he understood what was being done, was not under any kind of sedative or dope or anything like that and that Ms mind was then perfectly clear. His wife then testified by deposition that she had heard her husband’s deposition and that his answers Were consistent with what he had told her all along about the accident.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Ramon McKINNEY et ux., Appellants, v. R. G. TROMLY, Appellee.
    No. 106.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 17, 1964.
    Rehearing Denied Jan. 14, 1965.
    John H. McElhaney and Robert W. Cal-loway, Turner, Rodgers, Winn, Scurlock & Terry, Eugene L. Smith, of counsel, William L. Richards, Andress, Woodgate, Richards & Condos, Dallas, for appellants.
    James A. Williams, Bailey & Williams, Dallas, for appellee.
   SELLERS, Justice.

This is a malpractice suit brought by Ramon McKinney and wife against Dr. R. G. Tromly. The suit by the appellants seeks to hold Doctor Tromly liable for the negligence of a nurse, Louise Torian, in administering an anaesthetic to appellants’ son Mark upon whom Doctor Tromly was in the act of doing a tonsillectomy with an electrical instrument.

The nurse admitted using ether which is very dangerous when brought in contact with an electrical instrument and will, in better than 90% of the cases, cause an explosion. An explosion did occur when the doctor applied the electrical instrument to Mark’s throat, causing the boy’s lungs to be so severely burned that he died a few hours after the explosion. The explosion also wrecked the anaesthetic machine and caused a fire, necessitating calling the Fire Department

The appellants’ son, a 9-year-old, ■was haying trouble with his breathing, although he had previously had his tonsils removed. He would breathe through his •mouth rather than his nose. The family physician of the McKinneys advised them to take him to Doctor Tromly, which they •did, and Doctor Tromly recommended an •operation to remove an obstruction in or ■about the nasal passage. Doctor Tromly .advised the McKinneys to carry Mark to Methodist Hospital in Dallas for the operation. Louise Torian, the nurse, was a general employee of the hospital. The administration of an anaesthetic is not an administrative function of the hospital and constitutes the practice of medicine. Although •the nurse could not practice medicine, yet ■she was trained in this field and knew how to administer an anaesthetic. The doctor 'had used this nurse on prior occasions to •give anaesthetics for him. On the morning .of the operation Mark was carried into the •operating room. The anaesthetic was given 'by the nurse and other nurses had assembled the electrical instrument and had it •.ready when the doctor entered.

The machine from which the anaesthetic ■was administered by the nurse had a large gauge on the front of it which registered in color the different medicines used for anaes-thetics and showed at the moment the doctor started his operation that the nurse had used and was using ether. The doctor did not notice this gauge and made no inquiry of the nurse as to what she was giving the boy. He immediately started to operate and the explosion occurred which resulted in the death of Mark. The court admitted evidence of other doctors showing that it was the general practice in Dallas to use a nurse trained in the field to give anaesthetics.

It was an admitted fact that Doctor Tromly had absolute right of control of all personnel in the operating room during the operation, including the nurse whether or not he exercised such control.

The case was submitted to a jury on special issues and resulted in a verdict finding the nurse guilty of negligence, which was the proximate cause of the explosion and injury to Mark. The jury also found that Doctor Tromly was not guilty of negligence. The damages assessed by the jury was $15,000.00. Notwithstanding the jury’s verdict, the court entered judgment that plaintiffs take nothing against Doctor Tromly, the only defendant in the suit.

It is the contention of appellants that Doctor Tromly is liable for the negligence of the nurse under the facts in this case, and that the trial court should have entered judgment for the appellants. We have concluded that this contention must be sustained.

We have no difficulty in finding that the nurse, although in the general employ of the hospital, was under the facts of this case an employee of Doctor Tromly while in the operating room and under his control.

The early case of Western Union Telegraph Co. v. Rust, Tex.Civ.App., 120 S.W. 249, err. ref., recognized the rule that one can be in the general employ of one master and the special employee of another at the same time; and if the special master has the right of control, he is liable for the negligence of the servant. While the above case was not a malpractice case, it is interesting to note that it has been cited by the Supreme Court of two other states in malpractice cases in sustaining the view that the surgeon is responsible for the negligence of the nurse. Minogue v. Rutland Hospital, 119 Vt. 336, 125 A.2d 796; Aderhold v. Bishop, 94 Okl. 203, 221 P. 752. In the last cited case the Supreme Court of Oklahoma had this to say:

“We can conceive of no instance in which the application of the doctrine of respondeat superior could exercise a more salutary influence than in cases of damage arising out of surgical operations. The patient is helpless under the influence of an anaesthetic, and absolutely at the mercy of the surgeons per- ' forming the operation, and they are charged with the duty to see that no preventable injury results to their patient. * * * If the operating surgeons were not made liable for the negligent performance of the duties of those working under him, the law in a large measure would fail in affording a means of redress for preventable injuries sustained from surgical operations.”

The Supreme Court of North Carolina, in a case much like the one here, in Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589, held:

“On this record the evidence is sufficient to justify the inference that during the time the child was being prepared for the operation and while the operation was in progress, Dr. Joyner, as surgeon in charge, had full power of control over the nurses, including nurse Hanson, so as to make him responsible for the way and manner in which the anaesthetic was administered by Hanson.
ft * * j|c
“It is true Hanson was in the general employ of the hospital; nevertheless, on this record it is inferable that he stood in the position of a lent servant who for the purpose and duration of the operation occupied the position of servant of Dr. Joyner. 35 Am.Jur., Master and Servant, Sec. 18. And the rule is that where a servant has two masters, a general and special one, the latter, if having the power of immediate direction and control, is the one responsible for the servant’s negligence. 35 Am.Jur., Master and Servant, Sec. 541. See also Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227, 229; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 15, 29 S.E.2d 137. The power of control is the test of liability under the doctrine of respondeat superior. 35 Am.Jur., Master and Servant, Sec. 539.”

In the case of McConnell v. Williams, 361 Pa. 355, 65 A.2d 243, the Supreme Court of Pennsylvania, in sustaining the recovery against a surgeon for the negligence of a hospital interne, had this to say:

“Physicians and surgeons, like other persons, are subject to the law of agency, and one of them may be, either permanently or temporarily, in the service of another. * * *
* * *
“ * * * And indeed it can readily be understood that in the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation, * * * he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board, and that such supreme control is indeed essential in view of the high degree of protection to which an anaesthetized, unconscious patient is entitled, — a protection which Mrs. McConnell could justly claim in this case by reason of her trust and confidence in, and necessary reliance upon, the surgeon she employed to take care of her and her child when born.
“ * * * by the interne’s becoming subject to his control, he became responsible for the proper performance by the interne of all acts done in subordination to such control, whether defendant actually exercised it or not, and it would make no difference, in view of such control, whether the interne was furnished by the hospital or had been obtained in some other manner.
* * *»

The Supreme Court of Texas, in the recent case of Porter v. Puryear, 262 S.W.2d 933, sustained the right of recovery against the doctor whose employee gave the anaes-thetic.

We do not believe the rule in Dallas of doctors using nurses to give anaesthetics will relieve Doctor Tromly of liability in this case. Moore v. Ivey, Tex.Civ.App., 264 S.W. 283. From this case we quote:

“Since the jury has found upon sufficient evidence that Dr. Moore left the sponge in Mrs. Ivey, we think that a further finding that such act constituted negligence on the part of Dr. Moore necessarily follows:
“In 21 R.C.L. p. 388; in stating the rule applicable to the matter under discussion here, it is said:
“ ‘Probably the most common instance of malpractice which is brought into the courts arises out of surgical ■cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all; and it matters not that many physicians testify that the best surgeons •sometimes leave a sponge, or some other foreign substance, in the bodies of their patients, for this is testimony merely to the effect that almost everybody is at times negligent. * * * Surgeons cannot relieve themselves from liability for injury to a patient •caused by leaving a sponge in the wound after an operation by the •adoption of a rule requiring an attending nurse to count the sponges used .and removed, and relying on such count as conclusive that all sponges have been accounted for.’
“See Akridge v. Noble, 114 Ga. 949, 41 S.E. 78; Gillette v. Tucker, 67 Ohio, 106, 65 N.E. 865, 93 Am.St.Rep. 639; Palmer v. Humiston, 87 Ohio, 401, 101 N.E. 283, 45 L.R.A.,N.S., 640; Hackler v. Ingram (Tex.Civ.App.) 196 S.W. 279.”

It was held in Lee v. Moore, Tex.Civ. App., 162 S.W. 437, that a surgeon is responsible for an injury done to a patient through want of proper skill and care in his apprentice or assistant.

Under the foregoing authorities we 'think it must he held that the trial court judgment be set aside and judgment here entered in favor of appellants, and it is so ordered.

On Motion for Rehearing

We overrule the appellee’s contention that this court is without jurisdiction of this case because no notice of appeal was given by the appellants.

It is our opinion that no notice of appeal is required where motion for new trial is overruled, not by specific ruling of court, but by operation of law, jurisdiction will be conferred on Court of Civil Appeals by filing of bond without notice of appeal. Chekanski v. Texas & New Orleans Railroad Co., 306 S.W.2d 935.

We likewise overrule the contention of the appellee that the judgment of the trial court is excessive.


author: CHAPMAN, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Daniel GUEVARA, Appellee.
    No. 7432.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1965.
    Rehearing Denied Feb. 15, 1965.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal in a workman’s compensation case by Travelers Insurance Company, defendant below, from a jury verdict for Daniel Guevara for two hundred weeks-total temporary disability, together with $531 for hospital and doctors’ expenses.

The bases of appeal are that there, is no evidence, or alternatively, that the verdict and judgment are contrary to the overwhelming weight of the evidence upon which the jury found claimant sustained an injury in the course of his employment. The same contentions are made concerning the findings of the jury that he sustained incapacity for a compensible period of time. All points are briefed and argued together.

Daniel Guevara is a Latin American,, forty-seven years of age at the time of the trial and the testimony shows he had been a physically strong, capable and hard-working employee up to the time of the injury alleged. He was employed by C. M. Mitchell, who was in the furniture rehabilitation and upholstery business, and worked an average-of nine hours a day, six days a week. He-worked in a filling station in Ballinger from 1935 to 1940. He had lived in that city for more than twenty-eight years before the time of trial. He worked in a body shop-straightening fenders and learning upholstery work from 1940 to 1946. He changed to upholstery work in 1946 and worked for the same man from that year until 1953. During that year he went into business for himself in upholstery. He went broke in that business in Ballinger about 1958 or 1959. He left his family in Ballin-ger and went to Plainview, where he went, to work for Mr. Mitchell in 1959 doing up- - holstery work and other work in connection •with Mr. Mitchell’s business. He worked for him until February 19, 1963.

Claimant commuted from Plainview to Ballinger during the years he worked for Mr. Mitchell. The evidence is conflicting as to whether he slept in the front part of the 'building housing the stated Mitchell business all the time he was working there except on -the occasions when he went to Ballinger on weekends to see his family, but it is clear that he slept there part of the time. One witness testified he slept there all the time he was in town.

Having gone to Ballinger on the weekend of February 16, 1963, claimant did not return to work until 3:00 p. m. on Monday, February 18, 1963. Being desirous of getting in his nine hours, six days a week work 'he decided to work, with Mr. Mitchell’s permission, until 1:00 a. m. on the morning of February 19. Business was excellent at the time and Mr. Mitchell was working several •employees at night.

The building where the work was done was “about 50' x 12(Y ” and partitioned. The front constituted the upholstery and painting work shop and the back was where the stripping of old paint was done. The partition in the building went all the way to the ceiling. The back of the building was '“about 50' x 50'”, contained a vat used for submerging the furniture into a heated liquid containing “a caustic chemical * * the same chemical that is used by radiator shops to clean radiators.” It is an acid and burns the body upon contact.

Next to the vat was about a half-size window that had one pane out. In the roof there was a circular vent about a foot in diameter. About twenty feet from the vat was a fan about three feet high.

In the vat was a gas heater to keep the ■chemical solution hot in which the furniture was submerged so as to expedite the peeling ■off of the paint. A flue ran from the burner to the ceiling and out of the top of the building. On the nights when the claimant slept in the front of the building, he customarily arose at 4:00 or 5:00 o’clock and lighted the gas burner in the vat in order that the solution would be boiling and ready for the employees when they came to work at 7:00 a. m.

Claimant took care of all the upholstery but when not busy with that part of the rehabilitation of the furniture, he sometimes worked in the back room where he was working on the night of February 18, 1963, “a little past 12:00 o’clock.” He had gone to work in the vat area at 7:00 p. m., where his son and two other Latin Americans, Montez and Sanchez, were working.

About 12:00 o’clock that night he started feeling badly. His head started hurting and he became dizzy. “My head was going like that, (Witness waving his hands) and I couldn’t see good and kind of weaking down. So, I told them I was going to lay down. And that was all. When I woke up, I was in the hospital 10:00 o’clock that day, that morning.”

Claimant customarily worked in the upholstery room but on the night in question worked near the vat for five hours or more. He testified he could see the fumes in the room coming out of the boiler, “fumes, steam or its gas;” that the vat put off an odor.

“Q. Does it burn your nostrils when you’re right over it working ?
“A. Well, it will burn all right.”

Other witnesses testified to the same effect.

When Mr. Mitchell came to work on the morning of the 19th of February, 1963, he found both Guevara and his son unconscious. He immediately called an ambulance and sent them to a hospital.

The testimony also shows that Montez and Sanchez became ill shortly after claimant lay down. Montez said he and the others wanted to keep working, “we wanted to put in at least eight hours but we decided we better quit' because we were feeling bad * * * well, it was sort of hard to explain. Felt sort of a buzz in my head "like — seem like I couldn’t walk straight, and I felt weak like. And we just barely got to the car and drove out of there.” Neither of them worked the next day.

Claimant was released from the hospital on February 20, and went back to his upholstery work. He continued working until the 22nd. He said he had difficulty that day. “I kind of got my throat weak * * * something sick in here. I couldn’t breathe.”

He went back to the hospital and stayed “nine or ten days.” He testified after he was released he couldn’t go back to work. “Air just goes out. My breath just goes out, all over.”

“Q. Do or do you not ever have any trouble with your heart?
“A. Well, you will — now I feel like my heart or breath or something in here is bad.
"Q. Dan, have you done any work since you went back in the hospital the second time after February 19, 1963?
“A. Do I do any work?
“Q. Have you done any work?
“A. No.
“Q. Have you tried to do any work ?
“A. (Witness nods his head negatively.)
“Q. Why haven’t you?
“A. I can’t do it.
“Q. Why can’t you do it?
“A. Well, my breath goes out, weakens down; my back hurt all over my back.
“Q. Dan, did you learn later on after that night of February 18th, the early morning of February 19th, that there was'a flue missing off of the exhaust out of that boiler?
“A. Well, when I was laying — when I woke .up in the hospital, I asked Mr. Mitchell what happened. And he said that something in there that missing fumes was getting on the inside of the building when he went in there.”

Mr. Mitchell testified that when he started checking he found a leak in the pipe going out of the boiler, “a pipe that was parted a little bit.” He also testified Mr. Guevara was a good, very dependable man; that he was honest and he did not classify him as a faker.

Dr. Hill was claimant’s treating physician in Plainview and later sent him to Dr. John H. Selby, a thoracic surgeon of Lubbock. Dr. Hill did not testify. Dr. R. H. Tull, a general practitioner of Abilene, testified for claimant and Dr. Selby testified for appellant insurance company.

Dr. Tull testified he examined Mr. Guevara twice for the purpose of testifying and not as a treating physician. His testimony in substance was that he had an abnormality of his throat, larynx, chest and heart, shown by examinations and x-rays. Without objection he testified that claimant was complaining of a sore throat, that if he does any exercise at all he runs out of air, that he has trouble getting his air in and out; if he walks fast his heart pounds and goes fast; he gets short of breath; had trouble with his vision and that he can do no work at all on account of his condition. Questions were then asked and answered as follows:

“Q. Now, were the subjective symptoms related to you and your objective findings compatible, Doctor? Did they lay side by side?
“A. They were.
“Q. At this time was plaintiff able to work when you first examined him?
“A. He was not.
“Q. Why was he not able to work?
“A. I don’t think he could work on account of the shortness of breath he had and the fast pulse and the high pressure and especially the lack of air.”

In explaining the x-rays introduced he testified, “he has a flattening out here of his heart, pushing up and almost a flattening out in this heart region, especially in this left region of his heart in the ventricular region there, I also noticed that he has an aorta that is tortuous as it comes up from the heart * * * you can see the markings here in his chest where he has had these bronchovesicular markings on each side here. Essentially, the abnormal thing here is his chest.”

Dr. Tull was than asked the following question and replied as follows :

“Q. Did the abnormalities pointed out by you in plaintiff’s x-ray No. 1 and found in the x-rays reasonably account for the plaintiff’s inability to work as determined by you on the day you took these pictures ?
“A. It did.”

The doctor was then asked a series of hypothetical questions based essentially on facts that had been proven, from which he answered that claimant was not able to do any type of physical work, that such condition was permanent and that it was the effect of the gas or gases that caused it. He further testified the claimant should not do lifting, continuous straining or overhead stretching. He also testified that carbon monoxide asphyxiation effects some people differently than others and that sometimes there are short periods of time in which a victim may appear normal after such an experience and then complications set in. He testified the complications are due to the organs being without oxygen for too long a period, which destroys tissues in the brain, lungs and heart. He also testified that when he examined Mr. Guevara there was edema of the bronchus, larynx, pharynx and pulmonary and that he was in worse condition at the time he examined him on the day he testified than when he had previously made the examination.

Mr. Mitchell himself testified he had an opportunity to observe Mr. Guevara as he testified on the stand and that it seemed difficult for him to breath, a condition he did not have before the injury on February 18 or the early part of February 19, 1963.

Dr. Selby, a thoracic surgeon, with an impressive record of training and experience testified completely contrary to Dr. Tull. He made a thorough examination of the claimant, going down into his bronchial tree and chest with instruments where he could observe with a light the conditions of his tissues. His testimony in effect was that he found no abnormal conditions whatever and that he should go on back to work.

With these facts before us we must now apply the law to them. In determining whether there is any probative evidence to support the verdict of the jury we must determine a question of law. Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581. If there is any such evidence, the jury findings are conclusive and binding on us. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677. In making this finding “we must look to the revealed facts and circumstances most favorable to the findings and disregard all those to the contrary.” Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491 (writ refused) ; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359; Jecker v. Western Alliance Insurance Company, Tex.Sup., 369 S.W.2d 776.

Dr. Tull’s testimony, the finding a day or two later of the separated pipe or flue from which the poison could have escaped, the fact that three other workers became ill that night who were working in the same room with claimant and the unconscious condition of claimant’s own son even the next morning certainly show sufficient probative evidence to support the verdict to the effect that claimant sustained an injury in the course of his employment.

In determining whether the verdict was contrary to the overwhelming weight of the evidence requires us to consider and to set aside the verdict and remand the cause for a new trial, if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, supra. Here again, the testimony of Dr. Tull must be considered, along with that of Dr. Selby, and all the other testimony. In re King’s Estate, supra.

The medical training of Dr. Selby showed great superiority over that of Dr. Tull, a general practitioner, but for some reason, known only to them, the jurors believed Dr. Tull and did not believe Dr. Selby. They are the judges of the credibility of the witnesses and the weight to be given to their testimony and we, as an appellate court, have no right under such circumstances to disturb their findings. Maryland Casualty Co. v. Boverie, Tex.Civ.App., 37 S.W.2d 310 (writ refused) ; Texas Employers’ Ins. Ass’n v. Clark, Tex.Civ.App., 23 S.W.2d 405 (writ dismissed). In the Boverie case the court held that where the jury’s findings were supported by the testimony of two doctors in a workman’s compensation proceeding, it cannot be disturbed by the appellate court, though contrary to six other doctors’ testimony.

Then on the contention of appellant to the effect that there is no evidence that claimant sustained total incapacity for a period of two hundred weeks, or in the alternative such finding is so contrary to the great overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, we have the testimony of Dr. Tull to the effect that Mr. Guevara was totally and permanently incapacitated. Mr. Mitchell himself testified to the effect that in observing Mr. Guevara on the witness stand he noticed his difficulty in breathing; that he had not had that difficulty prior to February 19, 1963. The claimant himself testified he could not do physical work and Mr. Mitchell testified he was honest and reliable. Certainly there is some probative evidence to support the two hundred weeks of permanent disability. Under the rules of law above cited and the facts related, we cannot say the verdict and judgment are without any evidence to support them or that they are so contrary to the great and overwhelming weight of the evidence as to be wrong and unjust.

Accordingly, the judgment of the trial court is in all things affirmed.


text:
    L. D. DARBY, Appellant, v. BORGER INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 7430.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 11, 1965.
    Rehearing Denied Feb. 8, 1965.

      White, White & White, Borger, for appellant
    Jack Hood, Gassaway, Allen & Norman, Borger, for appellees.
   CHAPMAN, Justice.

Plaintiffs, Borger Independent School District and Borger Junior College District, filed suit on March 17, 1961, against L. D. Darby for collection of ad valorem taxes then delinquent upon his restaurant building and fixtures. By supplemental petition filed on June 31, 1963, they impleaded the other taxing units and sued additionally for all taxes that might become delinquent subsequent to the filing of such petition and before judgment. The record shows no answer to have been filed until June 5, 1961. It appears that four amended answers were filed by appellant but the record shows only the pleadings of Defendant’s Fourth Amended Answer and First Amended Action for Injunction to Restrain Enforcement of the Tax Assessment, which he filed on September 2, 1962. The trial of the case to a jury started on June 17, 1963.

In reply to five issues submitted the jury answered that the boards of equalization for the taxing units involved did not make a bona fide effort to assess the taxable property within such districts at a fair, just, equal and uniform valuation for taxing purposes and that the valuations by such boards as to appellant’s property were not equal and uniform as compared to valuations placed upon other taxable property within such districts. However, the jury found in issue number five, the only other issue submitted, that no substantial injury resulted to Mr. Darby by reason of the valuations made by the boards of equalization. The county is not involved in the appeal. The named educational institutions are plaintiffs and will be referred to as such or as appellees when their respective names are not used. The City of Borger is intervenor and will be referred to as such or as The City.

The trial court after studying the record disregarded the answers of the jury to the first four issues submitted and upon the jury’s answers to special issue number five rendered judgment for the taxing units and for penalty, interest, and attorney’s fees to March 17, 1961. He required a remittitur of penalty and interest from the last named date because it was not, he said, appellant’s fault that the suit was not tried any sooner.

Appellant first contends reversible error for failure of the taxing units to make out a prima facie case “in that neither had introduced or proved the tax rolls are properly certified, authenticated copies thereof.”

Exhibits introduced into evidence without objection show certified copies of the tax records of the taxing units. The statement of facts shows the original rolls were in the courtroom available for use and counsel for appellant agreed they might be returned to the vaults. No objections to the copies as such were ever made and no request made to compare them with the originals. Under this state of the record we believe the point is without merit. Article 7326, Vernon’s Ann.Tex.Civ.St.; Stone v. City of Dallas, Tex.Civ.App., 244 S.W.2d 937 (writ dismissed) ; Newton v. Highland Park Independent School Disk, Tex.Civ.App., 361 S. W.2d 916 (N.W.H.); Rachford v. City of Port Neches, Tex.Civ.App., 46 S.W.2d 1057 (N.W.H.); Rees v. State, Tex.Civ.App., 149 S.W.2d 184 (writ dismissed, judgment correct).

The taxing units having made out a prima facie case of the validity of the assessed valuations, the burden then rested upon appellant to go forward with proof which would meet requirements of law for avoiding the valuations. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; State v. Republic Natural Gas Co., Tex.Civ.App., 181 S.W.2d 592 (refused w. m.).

Appellant next contends that his assessed valuations on which percentage of taxes were taken had been changed without notice.

On numerous occasions throughout the trial, in attempting to follow the testimony, the court told counsel in effect that he was confused on what they were attempting to prove and as to what the witnesses had said. In studying the record, we can certainly understand his reason for such statements. There are many, many repetitious statements and more than a few contradictions and contradictory contentions. For example, in numbered paragraph four of appellant’s Fourth Amended Answer, in reference to all taxes he is contesting, he pleaded: “That the defendant duly protested these taxes both before the tax assessors and the boards of equalization, but that no action was taken on his protest.” We find it impossible from the statement of facts, because of contradictory statements and contentions, to determine if he did or did not do so before each board of equalization for each of the years. His testimony as to the schools shows:

“Q. Now, tell us the College and School, bearing in mind that the Equalization Boards were the same persons and met at the same times and places for the school and the college?
“A. I have nothing written for the school in 1956, but that was the year that the Pritchard & Abbott appraisal was made. I appeared there at the Sam Houston Junior High School building there. Now, that was oral and there was nothing to that Nothing written on—to the effect of that. There was no information on that whatsoever.
“Q. But your independent recollection, independent of any—
“A. 1956.
“Q. —written memorandum—
“A. 1956.
“A. —indicates to you that you were— that you did appear before them in 1957, and 8, and possibly 1959?
“A. No; I will withdraw the 1959. I have the information here on ’57 and ’58.
“Q. You did appear before the Independent School District and College District Board of Equalization during 1957 and 1958?
“A. If they are one and the same; yes.”

We believe it well to state just here that the taxing units involved employed the professional appraising firm of Pritchard & Abbott prior to the years here involved to appraise what they considered to be the cash market value of all the property in the county. Mr. Darby’s testimony shows that he had knowledge of the Pritchard & Abbott appraisal in 1956 and that he talked to the city officials that year with respect to his taxes being unfair. We believe this is sufficient to show that he had notice of some sort concerning the change in his city taxes.

It is true that Article 1053, V.T.C.S. provides that where the board of equalization raises the value of any property the secretary of the board shall give written notice to the owner of such property or the person rendering the same of a date for hearing, when the owner or person rendering the property may appear and show cause why the value should not be raised. However, our Supreme Court has held that where owners learn of the hearings and appear they submit themselves to the jurisdiction of the hoard of equalization. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

Additionally, the failure to receive notice is a defensive issue and the record shows no pleading raising the issue nor any request for submission of any issues thereon. To the contrary, as heretofore stated, appellant pleaded that he protested the taxes both before the tax assessors of the districts and before the boards of equalization. Rule 279 Vernon’s Ann.Texas Rules of Civil Procedure, provides upon all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived. We must therefore conclude this issue must be taken as having been answered by the court in such manner as to support the judgment. As a matter of fact, the court in a letter to all attorneys, following their respective motions for judgment, set out in detail his reasons for rendering judgment for the taxing units. The question of notice was not even mentioned in this detailed letter, thus indicating the trial court considered it of no importance in the trial or in rendering his decision for appellees.

Appellant’s contention throughout seems to be that he was discriminated against because the boards of equalization lowered Pritchard & Abbott’s appraisal of Hotel Borger to less than half the value placed on it by the professional appraising company while they raised his above the Pritchard & Abbott estimate of value.

There is no rule of law we know about that permits duly constituted boards of equalization to abrogate their rights and duties to a professional tax appraising firm. To the contrary, our Supreme Court has held:

“It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. * * * Moreover, when their official action is attacked it will be presumed that such boards discharged their duties as public agencies according to law and acted in good faith.
“While it has been held that a grossly excessive valuation may, in law, be sufficient to establish such fraud or illegality as to render a valuation void, * * French Ind. School Dist. v. Howth, 134 Tex. 211, 134 S.W.2d 1036, it is held with equal emphasis that mere errors in judgment or the fact that a trial judge or jury differs with1 the valuation fixed will not suffice as a basis for avoiding the board’s action. * * * ” State v. Whittenburg, supra; Druesdow v. Baker, 229 S.W. 493 (Com.App. opinion adopted).

The appellant sought injunctive relief to avoid payment of his taxes but the only pleadings before us for such relief were filed long after the valuations of the boards of equalization were already made and suit filed for delinquent taxes. Though the record does not, in our opinion, show an arbitrary and illegal scheme of taxation, even if it did, relief by injunction was subsequent to the time such alleged arbitrary and illegal scheme was put into effect and after the other taxpayers had presumably paid their taxes for several of the years involved, thus requiring a showing of substantial injury. City of Arlington v. Cannon, supra; State v. Whittenburg, supra; City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820 (writ refused) ; City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W. 2d 777 (writ refused).

“By Article 7174, Revised Civil Statutes, 1925, the legislature has directed that ‘real property shall be valued at its true and full value in money,’ and by Article 7212 has directed boards of equalization to hear evidence touching the ‘market value or true value’ thereof. Our courts have interpreted these provisions to mean that assessed valuations shall be based on ‘the reasonable cash market value’ of property.” State v. Whittenburg, supra.

Exact uniformity and equality of taxation is unattainable. State v. Whittenburg, supra; Rosenburg v. Weekes, 67 Tex. 578, 4 S.W. 899, 901; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378.

A reasonable discrepancy between the true value of the property and the value at which it is assessed for taxes is permissible to cover the difference in judgment as to the value of the property. Dallas County v. Dallas Nat. Bank, 142 Tex. 439, 179 S.W.2d 288.

Appellant admitted his real property was worth at a fair cash market value the sum of $13,970. It is difficult to understand the exhibits introduced from the explanations made of them in the statement of facts; but if we understood them, the valuations placed on his property did not exceed the reasonable discrepancy rule. There were no discrepancies in the percentages used for assessments of the true market values; and if we understand the exhibits, sixty-two percent (62%) of the true market value placed by the boards was the highest used for any taxing unit for any year.

We also believe, and so hold, that the answers of the jury to the first four above described issues are against the great weight and preponderance of the evidence. Appellant’s own witnesses who had served on the boards of equalization testified in effect that they tried to set everyone’s taxes at a fair price. For example, Mr. Weddington stated they “tried to set everyone’s taxes at a fair price, and that was what was considered, that was our job, and that was what we tried to do.”

We believe one of the fallacies of appellant’s contentions is that he is assuming the Pritchard & Abbott valuations as correct, when the boards were not bound by them at all and admitted they used them only as a guide. Who would know better the actual cash value of Hotel Borger than the business and professional men of that city who understood local economic conditions or an out-of-county professional appraising firm unfamiliar with the price it would bring if offered for sale? The question answers itself. Of course, it would be local people familiar with the economy of the city and with the percentage of the rooms rented each night. Even if the Hotel Borger was not taxed at all, it would be doubtful if the record would have shown substantial injury to appellant. The record certainly does not show such injury from the assessments made.

The record does show that the boards assessed appellant’s property on substantially the same basis as the great bulk of the property on the same tax rolls. Thus, he could not have his assessment cancelled “merely because in isolated instances some of the other property on the tax roll has been assessed at less than its proportionate value.” Dallas County v. Dallas Nat. Bank, supra, or “by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable.” City of Arlington v. Cannon, supra.

We have held above that appellant’s effort for injunction made in this record could not relieve him of his tax liability. The jury has held, with an abundance of evidence to support it, that substantial injury did not result to Mr. Darby by reason of the valuations made by the board of equalization.

Therefore, the judgment of the trial court is in all things affirmed.


author: PARKER, Justice.

text:
    ASSOCIATES INVESTMENT COMPANY, Appellant, v. Niles B. COBB, Appellee.
    No. 6684.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.

      Stephenson, Stephenson & Thompson, Orange, for appellant.
    Louis Dugas, Jr., Orange, for appellee.
   PARKER, Justice.

Niles B. Cobb purchased an F-700 Ford truck and an F-600 truck paying part cash for each, with notes for the remainder of the purchase price evidenced by separate contracts on each truck, financed by Associates Investment Company. Cobb became delinquent in his monthly payments on both trucks. Associates Investment-Company peacefully repossessed them. Suit was filed by Niles B. Cobb against Associates Investment Company alleging that he made tender of payment for both trucks before defendant, Associates Investment Company, had lost control or possession thereof; that Associates Investment Company refused the tender and converted the trucks to its own use. Plaintiff Cobb sued for the difference between the market value of the trucks at the time of conversion less the amount he owed Associates, for the actual damages by reason of loss of use of the trucks after their conversion and for exemplary damages. Cobb abandoned any cause of action as to the F-600 truck because evidence of tender was limited to the F-700. The jury answered all issues in favor of Cobb as to the F-700 truck. Associates Investment Company will be referred to as “Associates” or appellant, and Cobb will be referred to as appellee or as “Cobb”.

Appellant’s point of error No. 1 is there was no evidence to justify the submission of Special Issue No. 1. Special Issue No. 1 and the answer of the jury is as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the plaintiff’s wife tendered to the defendant, Associates Investment Company on or about November 6, 1959, the amount of money due on the indebtedness on the F-700 Ford truck while said truck was still in defendant’s possession and control?
“An effective tender can be made without actually producing, exhibiting, and counting the money at the time of the offer to pay. When an offer of payment is made in good faith and the party making such offer has the money to make actual payment of the claim, and the party to whom it is offered declares that he will not accept such payment, the actual production and exhibition of the money is waived and a valid and effective tender is shown.
“Answer YES or NO.
“Answer: YES .”

The payment on the F-700 truck was due the 15th of October. It was not paid. Thereafter, an employee with Associates talked to Cobb’s wife at the hospital. (Cobh had been injured in a hunting accident.) She learned that repossession of the truck was being considered by appellant. Mrs. Cobb’s testimony was:

“Q. I see. What action did you take after this man came there, Mrs. Cobb?
“A. Well, I went home that afternoon and called Associates in Beaumont, and, well, I told them the condition that Niles was in and that I would try to get over there and take care of the payments that were due on both of the trucks as soon as he was able for me to get away that long and take care of it.
“Q. What was his reply, Mrs. Cobb?
“A. He told me that they couldn’t accept the payment.”

She further testified, referring to a subsequent conversation with Associates: (This being the offer of tender.)

“Q. What else did you do, Mrs. Cobb?
“A. I called the Associates and told them that I would like to pay the F-700 off in full, and he told me that both trucks would have to be paid off in full, that they wouldn’t accept the payment of one truck.
“Q. With whom did you talk at this time?
“A. That was with Mr. Foster, and I told him that the trucks were under separate contracts, and he said that was all right, that they had to have payment in full on both of them.”

This offer was made before any attempt by Associates to foreclose by private sale or otherwise. On the ability to pay, Mr. Cobb, testified as follows:

“Q. Well, actually, 3'ou’ve heard your wife testify that she offered to pay off this F-700. Would you have had as much as thirty-nine hundred dollars in the bank at that time in order to pay off that amount of money?
“A. Well, I can tell you how she intended to pay it off if you want to know how she intended to pay it.
“Q. No, sir, my question was: ‘Would you have had the money to have done it?’
“A. Yes, sir, she had the money available if they would have accepted it, to pay it off.”

When Associates refused the offer, the actual production of the money was waived. Nevertheless, the ability to pay at the time of tender must be proved. This was done. The rule announced in the following cases controls the question of tender in this case: Texas Auto Co. v. Clark, 12 S.W.2d 655 (Tex.Civ.App.1928) ; White v. Dennis, 220 S.W. 161, 163 (Tex.Civ.App.1920); Great Plains Life Ins. Co. v. First Nat. Bank of Lubbock, 316 S.W.2d 98, 105 (Tex.Civ.App.1958), (err. ref. n. r. e.); Poff v. Miller, 235 S.W. 570 (Tex.Com.App.1921); Haney v. Clark, 65 Tex. 93 (Tex.S.Ct.1885). Appellant’s point of error No. 1 is overruled.

Appellant’s point of error No. 2 urges that the evidence was insufficient to justify the submission of Special Issue No. 1. Considering the entire record, the finding of the jury in answer to Special Issue No. 1 is not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong. Appellant’s point of error No. 2 is overruled.

Appellant’s point of error No. 3 is as follows:

“The Trial Court committed error to Appellant’s prejudice is submitting and rendering judgment on Special Issue No. 1 and the accompanying instruction because said instruction is erroneous in that it actually rebuts or negatives those items which in law must be defined as a part of tender.”

Appellant’s point of error No. 4 is as follows:

“The Trial Court committed error to Appellant’s prejudice by overruling defendant’s objections to the instruction concerning ‘tender’ and refusing to submit the definition of tender requested by defendant, Associates Investment Company.”

Appellant tendered a definition of the word “tender”, to-wit:

“With respect to the term ‘tender’ as used in the charge, you are instructed that in order to make a valid tender, the thing to be tendered must be actually produced and offered to the party entitled thereto and that the tenderer must place the money or property in such position that his control over it is relinquished for a sufficient time to enable the tenderee, if he desires, to reduce it to possession by merely reaching out and laying hold of the money or thing.”

Since there was evidence that tender was made by appellee and refused by appellant, the definition offered was erroneous because of the rules of law hereinbefore set forth in disposing of Point 1.

Appellant’s points of error Nos. 3 and 4 are overruled.

Appellant’s point of error No. 5 is that there was no evidence to justify the submission of Special Issue No. 3 which was submitted to the jury as follows:

“If you have answered Special Issues Nos. 1 and 2 “Yes’, and only in that event, then answer:
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence that defendant, Associates Investment Company, its agents, servants or employees, converted the F-700 Ford truck belonging to the plaintiff on or about November 6, 1959?
“I charge you that if you have answered Special Issues Nos. 1 and 2 ‘yes’, that plaintiff, Niles B. Cobb, was entitled to dominion, ownership, and control of the F-700 Ford truck as of the time of defendant’s refusal as a matter of law. With this in mind,
I charge you that by the term ‘conversion’ as used in this issue is meant the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner, either permanently or for an indefinite time.
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes .”

By its answers to Special Issues 1 and 2, the jury found that Mrs. Cobb tendered to the appellant the amount of money owed on the F-700 truck while said truck was still in Associates’ possession and control, which tender was refused by Associates on or about November 6, 1959. Considering such jury findings, together with the undisputed fact that Associates sold this truck to another person, there was a conversion of the truck by Associates as a matter of law. Lyon v. Wood, 363 S.W.2d 179, 181 (Tex.Civ.App.1962) ; Poff v. Miller, supra; Texas Auto Co. v. Clark, supra. Appellant’s point of error No. 5 is overruled. Likewise, appellant’s point of error No. 6 where the claimed error is that there was insufficient evidence to justify the submission of Special Issue No. 3 is overruled. In re King’s Estate, 100 Tex. 662, 663, 244 5.W.2d 660, 661 (1951). However, áppel-lant’s point of error No. 7 asserts error in submitting and rendering judgment on the submission of Special Issue No. 3 and its accompanying instruction for the reason that same is an erroneous instruction as a matter of law and a general charge. This Issue No. 3 should not have been given. It was not an issue of fact to be submitted to the jury. Special Issues Nos. 1 and 2 were both answered “yes” and resolved the disputed fact issues on conversion. Although appellant’s point of error No. 7 correctly contends that such issue should not have been given, no prejudice to appellant i-s apparent. The error did not amount to such a denial of the rights of appellant “as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Under Rule 434, Texas Rules of Civil Procedure, point of error No. 7 is overruled.

In answer to Special Issue No. 6 the jury found that Cobb sustained actual damages by reason of loss of use of the F-700 truck. Appellant’s point of error No. 8 that there was no evidence to justify the submission of such issue is overruled. Considering the entire record, appellant’s point of error No. 9 that the evidence was insufficient to justify the submission of Special Issue No. 6 is overruled.

Appellant’s point of error No. 10 complains of error in submitting Special Issue No. 6 for the reason that it does not submit a legal measure of damages because of the erroneous definition of the term “actual damages”. There is no definition of the term “actual damages” in Special Issue No. 6. Point of error No. 10 is overruled.

Appellant’s point of error No. 11 is that the trial court committed error in submitting and rendering judgment on Special Issue No. 7 for the reason that the defendant as a matter of law had the right to foreclose its lien and is not liable to the plaintiff for the loss of use of the vehicle. Although appellant had a right to foreclose its lien when the payments were in default, it lost its right so to do when ap-pellee made tender of payment which was refused by appellant. Point of error No. 11 is overruled.

Point of error No. 12 is as follows :

“The Trial Court committed error to Appellant’s prejudice in submitting and rendering judgment on Special Issue No. 7 because the accompanying instruction is a general charge and a comment on the weight of the evidence.”

Conditioned upon the jury’s findings that the plaintiff, Niles B. Cobb, sustained actual damages by reason of loss of use of the F-700, proximately caused by defendant’s conversion of such truck, Special Issue No. 7 was submitted as follows:

“SPECIAL ISSUE NO. 7
“What do you find from a preponderance of the evidence to be the sum of money, if paid now in cash, that would fairly and reasonably compensate the plaintiff, Niles B. Cobb, for actual damages sustained by him by reason of loss of the use of the F-700?
“In awarding damages, if any, under this issue, you may consider the damages, if any, sustained by Niles B. Cobb by reason of loss of use of the F-700 for a period of 440 working days after the date of the conversion, if any, which were proximately caused by the conversion, if any.
“Answer by stating the amount if any, in dollars and cents, or ‘None’.
“ANSWER: $2500.00 .”

By this instruction, the jury was advised there were 440 working days after the date of the conversion. This invaded the province of the jury and is upon the weight of the evidence. In fixing damages it is erroneous to fix a rate per day for loss of the use of the truck and multiply it by the number of days. Block Motor Co. v. Melia, 247 S.W. 666 (Tex.Civ.App.1923, wr. dismd.); Commercial Music Company v. Klag, 288 S.W.2d 168 (Tex.Civ.App.19S5, n. w. h.); Byers v. Shelton, 282 S.W. 635 (Tex.Civ.App.1926, wr. dismd.). Inferentially, the jury was instructed to use such erroneous method of determining damages. The jury should have been left free to find that the loss of use of the truck was for a less period than 440 working days. So, the instruction was erroneous. Owen Development Company v. Calvert (1957) 157 Tex. 212, 302 S.W.2d 640. Point 12 is sustained.

Appellant’s point of error No. 13 is that the trial court committed error to appellant’s prejudice in submitting and rendering judgment on Special Issue No. 9 for the reason that there was no evidence to justify the submission of such issue on exemplary damages. In determining whether or not appellee was entitled to exemplary damages against the appellant, the court instructed the jury as follows:

“In regard to exemplary damages, you are instructed that before you can assess exemplary damages, you must believe and find from a preponderance of the evidence that in refusing the tender of payment, if any you have found, Associates Investment Company, through its agents acted and was actuated by some evil intent or with such gross negligence and disregard of the rights of plaintiff as is deemed equivalent to evil intent, and that Foster was employed in a managerial capacity at the time of refusing the tender, if any you have found, and was acting within the scope of his employment or that Associates Investment Company ratified the acts of their agent Foster.”

Without passing upon whether or not such instruction was proper, there is no evidence that the appellant was actuated “by some evil intent or with such gross negligence and disregard of the rights of plaintiff as is deemed equivalent to evil intent”. Appellant’s point of error No. 13 is sustained. Also, appellant’s point of error No. 14 contending there was insufficient evidence to submit Special Issue No. 9 to the jury is sustained.

Point of error No. 15 asserts error in the instruction of Special Issue No. 10 concerning exemplary damages.

“SPECIAL ISSUE NO. 10
“What sum of money, if paid now in cash, do you find from a preponderance of the evidence, that plaintiff is entitled to as exemplary damages?
“In awarding such damages, if any, you may consider mental distress and suffering, if any, of the plaintiff, the sense of wrong and insult, if any, to which plaintiff was subject as a result of the wrongful acts, if any. The amount to be fixed, if any, is in the sound discretion of the jury.
“Answer by stating the amount, if any, in dollars and cents, or none.
“ANSWER: $1500.00 .”

Such point of error is overruled. Wright Titus, Inc. v. Swafford, 133 S.W.2d 287, 294 (Tex.Civ.App.1939, dism., judgm. cor.).

Point of error No. 16 is that the trial court committed error to the appellant’s prejudice in refusing to give a judgment for the defendant notwithstanding the verdict of the jury. Point of error No. 16 is overruled, except as to exemplary damages.

Judgment is reversed and the cause remanded for trial.