author: HUGHES, Justice.

text:
    Betty Friday ADAMS, Appellant, v. Robert K. ADAMS, Jr., Appellee.
    No. 11542.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1967.
    Peter P. Zaremba, Austin, for appellant.
    Brown, Erwin, Maroney & Barber, E. Richard Criss, Jr., Austin, for appellee.
   HUGHES, Justice.

On July 19, 1966, Betty Friday Adams, appellant, filed a petition for a bill of review in the trial court by which she sought to vacate a judgment rendered in such court on February 16, 1965, granting her husband, Robert K. Adams, Jr., appellee, a divorce, custody of their five sons with reasonable visitation rights to appellant and approving a property settlement mutually agreed to by the parties. The grounds upon which such bill of review was sought were (1) that ap-pellee was not a bona fide inhabitant of the State of Texas for one year just prior to the filing of such suit, nor had he then resided in Travis County for the prior six months, (2) that she'executed a waiver of citation in such suit under duress and in reliance upon false promises and representations of appellee, (3) that appellee told her that unless he procured a divorce his military career would be destroyed and that he, she and their children would suffer socially, militarily and • economically; that he faced the filing of general court martial charges even though he had been investigated and no charges filed, (4) that appellee promised her that once the divorce was final and he married the person who could ruin his life that he would, within a short time, divorce this person and remarry her.

Appellant also alleged that she had just recently realized that appellee had no intention of fulfilling his promises; that she, ap-pellee and their children had been out of the State since the divorce and, until now she lacked sufficient funds to institute this proceeding.

Trial was to the court, without a jury, who made these findings and conclusions:

“1. Judgment was entered in Cause Number 141,184 on February 16, 1965, supported by the testimony of Robert K. Adams, Jr. and by virtue of a waiver and agreement executed by Betty Friday Adams and filed among the papers of the Court. A copy of said judgment was mailed to Betty Friday Adams and received by her. She made no protest as to the judgment or its provisions. She knew of the remarriage of Robert K. Adams, Jr. Subsequently, she had litigated a change of custody proceeding in the State of Washington without success.
2. Betty Friday Adams was fully aware of the judgment and satisfied with it until several months following its rendition when visitation of the children first became a problem between the parties.
3. Betty Friday Adams wrote a personal letter to the judge of this Court following entry of the judgment in which no protest was made against the judgment or its effect.
4. The first objection that was made to the judge of this Court so far as the judge or the papers of the Court are concerned, came seventeen months following the judgment and on July 19, 1966.
5. Betty Friday Adams proved no fraud committed against her in connection with the hearing conducted by this Court in No. 141,184 or the final judgment entered therein. There has been no showing of extrinsic fraud which would justify a setting aside or review of said judgment.”

Judgment was rendered denying appellant any relief.

The first point of appellant is that the trial court in the original divorce suit erred in finding that appellee complied with the residence requirements of Art. 4631, Vernon’s Ann.Tex.Civ.St., and with the evi-dentiary requirement of Art. 4632 id.

We do not pass upon this point for the reason that we agree with the trial court that appellant has not shown herself to be entitled to equitable relief from the divorce judgment even though the first point be considered and sustained.

The second point made by appellant is that the trial court in the original suit erred in rendering judgment for appellee because the evidence was not full and satisfactory as required by Art. 4632, supra.

We do not consider this point for the reasons given for not considering the first point.

The third point of appellant is that the trial court erred in hearing the original divorce suit on February 16, 1965, because he, the trial judge, knew that appellant had requested postponement of the original setting for February 2, 1965.

This ground of attack on the divorce judgment was not alleged in the petition for bill of review and we are not required to consider it. However, we will briefly state the facts with reference to it.

Appellant executed a waiver of service of citation in the case and made her appearance therein. She filed no answer. Appel-lee, a soldier stationed at Spokane, Washington, where appellant was also living at the time, came to Austin for the purpose of obtaining a divorce on February 2, 1965. Appellant knew he was coming to Texas for this purpose. When appellee arrived in Austin he learned from his attorney that appellant had engaged an attorney to have the case postponed. This attorney was paid $5.00 for this service by appellant and the attorney informed her that if he was to represent her in the case he would have to be paid $250.00. The attorney was not paid and he did not represent her.

Appellant testified:

“Q You also knew that your husband was in Austin and had flown from Spokane down to Austin for the purpose of that hearing, at that first hearing?
A Yes.
Q And is it your testimony that you didn’t even know anything about the second hearing?
A I didn’t know the exact date.
Q Well, did you know there was going to be another hearing on the divorce?
A I guess. He told me he had to come back down here, and I supposed that was why he was coming back.
⅜ ‡ ⅝ ⅝ ⅜ ⅜
Q Why did you tell your mother, then, when she testified up here, that she called on February 15 that Robert was on the way down to Texas to get the divorce ?
A I presumed that is why he was.
Q You knew there was a divorce getting ready to come up ?
A I didn’t know when.
Q But he leaves up there in Washington in the middle of the week, on the 15th or so, to get down here, and you tell your mother on the 15th that there is going to be a divorce, and you knew he was coming to Texas for that hearing, didn’t you?
A I didn’t know what it was going to be.
Q You kind of had an idea, though, it might be the next day or so, didn’t you?
A Yes, I guess.
Q And you didn’t do anything at that time to attempt to postpone that hearing ?
A I didn’t have the money to pay another attorney.”

Under these circumstances, appellant had no one to blame, but herself, for not keeping track of her case and for not answering or not appearing. The trial court had no knowledge, when he tried the case, that appellant desired to contest it. The point is overruled.

The last point of appellant is that the trial court erred in finding that no showing of extrinsic fraud had been established to justify a setting aside or review of the divorce judgment.

Appellant testified, and it is undisputed, that she and appellee had agreed that she would not contest the divorce, that she would get their car and furniture and that he should pay their debts and be awarded custody of their children. She further testified, however, that they agreed that she was to get the children back when she procured employment and became established and that appellee would divorce his wife and remarry her. The making of these latter agreements was denied by appellee.

Appellee also denied that he ever told appellant that a divorce was necessary in order that he could marry the woman who could destroy his military career.

We need not decide the legitimacy of the agreements relied upon by appellant to constitute extrinsic fraud. Obviously, they are agreements the performance of which the parties could not guarantee. The granting of divorces and awarding custody of children are judicial matters for courts to determine. Furthermore, an agreement to divorce one’s wife in order to marry the promisee is, or at least should be, against public policy.

Our holding is that the findings of the trial court are supported by the evidence and are sustained by us.

Appellant not having established that extrinsic fraud was practiced upon her in the divorce proceedings, she is not entitled to set the judgment aside in this equitable proceeding. Whether she had a meritorious defense to the divorce action is a question we need not consider. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    B. I. MURPHY et ux., Appellants, v. The CITY OF BEAUMONT et al., Appellees.
    No. 6943.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1967.
    Rehearing Denied Nov. 15, 1967.

      Weller, Wheelus & Green, Beaumont, for appellants.
    Keith, Mehaffy & Weber, Benckenstein & Norvell, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a suit for damages brought by plaintiffs, B. I. Murphy and wife, Zita Murphy, for personal injuries sustained by Mrs. Murphy when she fell in the Beaumont City Auditorium. Defendants are the City of Beaumont and the Beaumont Music Commission. Summary judgments were granted for both defendants. The parties will be referred to here as they were in the trial court.

Plaintiffs’ sole point of error is that the trial court erred in holding that their cause of action was barred * under the doctrine of volenti non fit injuria. It is alleged that plaintiffs purchased tickets and were attending a Peter Nero piano concert which was sponsored by the Beaumont Music Commission in the City Auditorium. The undisputed facts showed: That plaintiffs were seated in the lower balcony in the second or third row from the bottom. That the lights came on at intermission and Mrs. Murphy went to the restroom located on the first floor. That when she returned to the balcony the lights were out and Peter Nero was playing the piano. That she fell and was injured as she walked down the stairs toward her seat. That she fell because she could not see.

Mrs. Murphy’s deposition showed: That she went to the restroom at intermission. When she returned to her seat the restroom lights were on and the . hall lights were on, but upon opening the door to enter the balcony the lights were out in the auditorium. The lights were on on the stage where the artist was playing. Mrs. Murphy’s deposition read in part as follows:

“A. It was so dark that I was holding on to the seats as I walked, and I thought I was to the bottom there, and there was one more step.”
“A. I thought I was to the bottom, it was so dark I couldn’t see, and I stepped off.”
“A. Well, I was walking down the steps holding onto the side seats there the best I could, kind of leaning as I remembered, and just getting down those steps.”
“Q. And you said you had your hand onto the chairs?
A. As I remember.”
“Q. And you were using them to walk down?
A. I was using them as a guide to get down, looking at the rows as I went down, looking at each step.”

Mrs. Murphy also testified: That she had lived in Beaumont 27 years and probably had not been in the auditorium more than 15 times. That this was the first year she had a card for all of the performances of the Music Commission and the second one she had attended this year. The first time she sat in approximately the same position. She had been in the balcony half of the times she had been in the auditorium. That there was nobody to escort her back to her seat. She did not look for anybody nor call anybody to help take her back to her seat. She was not aware there were ushers with flashlights.

The defendants in this case were under a duty to Mrs. Murphy, as an invitee, to exercise ordinary care to keep the premises in a reasonably safe condition, so that an invitee would not be injured. Assuming both defendants knew that it was not safe for a person to walk down the steps of the balcony in the darkness, then the defendants were under a duty to warn invitees of such danger. It is now well established in this state that such duty does not extend to an invitee who has actual knowledge and appreciation of such danger, or where the danger is so open and obvious, that such invitee is charged in law with knowledge and appreciation of such danger. Halepeska v. Callihan Interests, Inc. (Tex.), 371 S.W.2d 368.

It is further written by the Supreme Court of Texas in such case as follows:

“The volenti doctrine is an affirmative defense. ‘Volenti’ is a contraction of the Latin phrase, volenti non fit injuria, which means legally that a plaintiff may not recover for an injury to which he assents; that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger. In this state, the decision to incur the risk must have been deliberate; i. e., made with knowledge and appreciation of the danger so that it may be said that the person acted as a result of an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). Logically, a plaintiff cannot make an intelligent choice to confront a risk if he does not actually know of the danger, or know such facts as would in law charge him with knowledge of the danger and appreciation thereof. Thus, while the cases speak of the requirement of actual knowledge and appreciation, the plaintiff may not close his eyes to obvious dangers ; and he may not recover where it is shown that he is in possession of facts from which he would be legally charged with appreciation of the danger. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952).”

Applying this legal test to the factual situation in the present case, was the danger of falling because of the attempt to walk down the steps in the darkness actually known and appreciated by Mrs. Murphy, or was such danger so open and obvious that she was charged in law with knowledge and appreciation of such danger? We have concluded that both questions should be answered in the affirmative.

The danger in this case was not one which was unknown to Mrs. Murphy. Each of the elements, the stairs and the darkness, were admittedly known by her, regardless of the number of times she had been in the auditorium. When Mrs. Murphy returned to the balcony as she stepped from the lighted hallway, she could see that the balcony was in total darkness and she knew she would have to go down steps to return to her seat. She said she knew it was dark when she walked into the auditorium. Even though Mrs. Murphy was not directly asked the question, and did not testify that she appreciated the danger, her testimony shows that she did. Her testimony as to the manner in which she was descending the stairs clearly demonstrates her state of mind. She said that she was walking down the stairs, holding on to the side seats and leaning, and this action is better evidence as to appreciation of danger than a direct answer to a question would have been.

Affirmed.


author: COLLINGS, Justice.

text:
    J. G. MOORING, Jr., Appellant, v. FRAM CORPORATION, Appellee.
    No. 4108.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 20, 1967.
    Rehearing Denied Nov. 10, 1967.
    Todd & Quinn, Nelson Quinn, Abilene, for appellant.
    Mays, Leonard, Moore & Dickson, R. Temple Dickson, Sweetwater, for appellee.
   COLLINGS, Justice.

J.'G. Mooring, Jr. brought suit against Fram Corporation, seeking damages alleged to have resulted to the engine of a truck belonging to him, by reason of negligence, on the part of the defendant (1) in manufacturing and placing on the market an oil filter -yvhich had a defective return duct, (2) in failing to inspect and discover said defective return duct, and (3) in placing on the market an oil filter which was inherently dangerous and which would cause unreasonable risk and damage if placed in a motor vehicle for use. At the close of plaintiff’s testimony the court withdrew the case from the jury and rendered judgment for the defendant. Plaintiff J. G. Mooring, Jr. has appealed.

Appellant presents one point of error in which it is contended that there is ample evidence to raise a material question of fact and that the court erred in withdrawing the case from the jury and rendering judgment for the defendant. In our opinion the point is well taken. The pleadings and the evidence raise a fact question for the jury concerning negligence on the part of appellee in the manufacture of its oil filter proximately causing the damage to Mooring’s truck.

It is well recognized that a manufacturer or processor is liable for the proximate results of its negligence in manufacturing or processing its product. Brown v. Howard, 285 S.W.2d 752, (Ct.Civil Apps. 1955, n. r. e.); Cruz v. Ansul Chemical Company, 399 S.W.2d 944-947, (Ct.Civil Apps. 1966, n. r. e.); Ford Motor Company v. Puskar, 394 S.W.2d page 1, (Ct.Civil Apps.1965), modified and affirmed by Supreme Court, 417 S.W.2d 262. In 65 C.J.S. Negligence § 100(2), pages 1078, 1079 and 1080 the statement of the rule is, in effect, that a manufacturer of an article which is inherently or imminently dangerous, or becomes so when applied to its intended use in the usual and customary manner, is liable to one, who, without fault suffers damage to his person or property which is the natural and proximate result of negligence in the manufacture of the article, if the damage might have been reasonably anticipated. The rule is held to be applicable irrespective of privity or any contractual relationship between the parties. 65 C.J.S. Negligence § 100(3), pages 1106 and 1107. Also see Shamrock Fuel and Oil Sales Company v. Tunks, 406 S.W.2d 483, (Ct.Civ.Apps. 1966, no writ history); Cohn v. Saenz, 211 S.W. 492, (Ct.Civ.Apps. 1919, writ ref.). The last cited Court of Civil Appeals cases involved the placing on the market and sale of dangerous explosive substances. They held that privity of contract was not required in tort actions because the duty owed by one who places such a substance on the market extends not only to the immediate buyer, but, since the purchase is for resale, the duty is owed to all who thereafter have occasion to purchase the product and use it for its intended purpose.

The record in the instant case shows that appellant was the operator of commercial trucks in the Abilene area. He left one of his trucks at a Conoco Station in Abilene and the oil filter in question was installed therein. The pleadings and the evidence show that Fram Corporation was the manufacturer of the filter. The evidence also indicates that the filter was the proper Fram filter for use in the truck, in that it was “the right number”, and that it “was put on the way it should have been.” The filter was thus properly applied to its intended use.

The evidence shows that shortly after the filter was installed in appellant’s truck and when the truck was in use on the highway, the engine overheated and was damaged to such an extent that a repair of the entire engine was necessary. A mechanic who qualified as an expert witness testified that when the truck was brought to him he found that the return duct in the oil filter had separated from the lid or top of the filter, and that in his opinion the separation was caused by pressure building up in the filter due to the lack of adequate perforations in the return duct to allow the oil to flow freely from the filter into and through the return duct back into the engine; that the pressure was still so great when he opened the case by taking off the top “the lid went about ten feet in the air, just covered all over the left-hand side of that truck with oil.” The witness testified that the separation of the return duct from the lid or top of the oil filter had allowed filtering material to flow through the oil system and engine of appellant’s truck, stopping up the oil galleries and pump and other parts of the engine, thereby starving the engine for oil and causing the injury and damage complained of. He stated that the oil comes straight from the oil pump through the oil filter and then to the bearings; that the oil in passing through the filter is cleansed before it gets to the crankshaft and bearings. The filter in question was introduced in evidence. It was cylindrical in shape and about fourteen inches long. The perforated return duct ran through the entire length of the filter. The expert witness stated, in effect, that perforations on the return duct should have been drilled the full length of the duct from top to bottom, inside the filter; that other filters of Fram Corporation which he examined had such perforations extending the full length of the return duct; that the perforated portion of the return duct of the filter complained of measured only approximately one and one-half inches in length. The witness stated that such perforations were not sufficient to permit the circulating oil to get into the return duct. He stated in effect that the pressure from the pump necessary to circulate the oil and the congestion of the filtered material in the inadequate perforations resulted in a pressure building up within the filter which caused the separation of the return duct from the top of the filter. He stated that this was the reason for the damage to the engine of appellant’s truck. In our opinion the pleadings and evidence raise a fact question concerning negligence on the part of appellee, Fram Corporation, in the manufacture of its oil filter proximately causing the damage to the engine of appellant’s truck.

The court erred in withdrawing the case from the jury and rendering judgment for appellee.

The judgment is reversed and the cause is remanded.


author: CADENA, Justice.

text:
    Eliseo CHAPA, Appellant, v. BENAVIDES MILL & GIN COMPANY et al., Appellees.
    No. 14586.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 4, 1967.
    William H. Shireman, Corpus Christi, for appellant.
    Lloyd, Lloyd, Dean & Ellzey, Perkins, Floyd, Davis & Oden, Alice, for appellees.
   CADENA, Justice.

This suit was originally filed by plaintiff, Eliseo Chapa, appellant here, against several defendants to recover for personal injuries sustained by him on July 23, 1962, while working at a cotton gin in Duval County. As a result of the action of the trial court in sustaining preliminary pleas, the only remaining parties defendant are the appellees, Benavides Mill & Gin Company, a corporation (herein called “the Company”), and Alberto Garcia, both of whom were alleged by plaintiff to be his employers. On April 29, 1966, the trial court entered an interlocutory order granting the Company’s motion for summary judgment. On September 16, 1966, following a trial in which the jury found that Garcia was not plaintiff’s employer at the time of the injury, the trial court entered final judgment in favor of the Company and Garcia.

The Company’s motion for summary judgment recited that it was based on the attached affidavit of its secretary-treasurer, George Hoffman, and on the “pleadings, depositions, testimony heretofore taken in connection with this case, together with all exhibits attached hereto and heretofore offered into evidence and received in evidence under the rulings of the court.” The only possible basis for the granting of the motion for summary judgment is that plaintiff failed to raise an issue of fact supporting his contention that the Company was his employer.

Essentially, the Company contended that on May IS, 1961, more than a year prior to plaintiff’s injury, it had, by written instrument, leased the premises on which the gin was situated to Alberto Garcia for a term of five years, and that, at the time plaintiff was injured, the gin was being operated solely by Garcia as the Company’s tenant, with the Company neither having nor exercising any right to control the operation of the gin by Garcia. Specifically, the Company contended that it was never the employer of plaintiff or of any other person working at the gin at the time of plaintiff’s injury. This defensive theory of the Company was sustained by the allegations contained in the affidavit of Hoffman. However, no copy of the lease instrument was attached to either the motion for summary judgment or to Hoffman’s affidavit in support of such motion.

Plaintiff filed no answer to the motion for summary judgment, nor did he file any affidavits in opposition thereto.

The “testimony heretofore taken in connection with this case,” referred to in the motion for summary judgment and, according to the order granting such motion, considered by the court, consisted of evidence heard by the court on October 9, 1964, in connection with preliminary pleas filed by defendants other than these appellees. A transcript of this testimony, prepared and properly certified by the court reporter, was filed with the clerk of the court at the time the motion for summary judgment was filed. During the 1964 hearing, Garcia testified that in 1962 he was operating the gin as manager for the Company. At this point, the court allowed counsel for the Company to subject Garcia to voir dire examination. After Garcia had identified an instrument as the agreement between him and the Company executed on May 15, 1961, the Company obj ected to “any further testimony” at variance with the terms of the written instrument, and offered such instrument in evidence. This instrument, the agreement between Garcia and the Company, is the purported lease on which the Company relies in support of its contention that it was not plaintiff’s employer.

Under the terms of the agreement, Garcia agreed to discontinue operating another gin owned by him in Duval County, and further agreed that he would not sell or lease such gin to any person who would operate it in such county. The instrument gave to Garcia the right to haul cotton at regular commercial rates, with his own or rented equipment, and recited that Garcia was authorized to make loans, not exceeding $50.00 in amount, to farmers who brought cotton for ginning to the gin located on the leased premises.

Paragraph VIII of the agreement obligated both parties to “use their best efforts for the mutually successful operation of the cotton gin.” This same paragraph, after providing that Garcia was to receive certain amounts monthly to defray expenses incurred by him during the ginning season, stipulated that, after certain expenses were deducted, “any remaining profits” were to be equally divided between Garcia and the Company.

Paragraph IX of this instrument reads, in its entirety, as follows: “Lessor assumes full responsibility and direction for the operation of the gin and agrees to save Lessor harmless from all liability on account of such operation during the term of this lease.”

It cannot be said that this instrument establishes that in 1962 the gin was being operated solely by Garcia and that the interest of the Company in the ginning operation was merely that of a lessor of the premises. Paragraph IX, as written, does not place full responsibility for the operation of the gin on Garcia. It is clear that the trial court interpreted Paragraph IX as though the first word in the paragraph, “Lessor,” read “Lessee,” thereby imposing on Garcia responsibility for the operation of the gin and obligating him to save the Company harmless, thus avoiding the incongruity of having the lessor (Company) agreeing to save itself harmless. Under ordinary circumstances, this correction would be clearly indicated. But, since Paragraph VIII expressly places on both Garcia and the Company the obligation to use their best efforts to insure the successful operation of the gin, it is impossible, with any degree of confidence, to determine, from the instrument itself, the proper place to substitute “lessee” for “lessor” in Paragraph IX. Further, wherever the substitution is made the result is that Paragraph IX attempts to, impose on one party full responsibility for the operation of the gin, while Paragraph VIII expressly obligates both Garcia and the Company to act in furtherance of the ginning enterprise.

In addition, it appears from the written agreement that Garcia was engaged in a cotton-hauling operation, and the testimony of both Garcia and Hoffman given during the October, 1964, hearing establishes that Garcia was also using the cotton gin premises as headquarters for his own cotton-buying business. The written agreement expressly excludes the Company from participation in the cotton-hauling activities of Garcia, and the testimony of Hoffman and Garcia shows that the Company had no interest in the cotton-buying activities of Garcia. On the other hand, the instrument expressly provides for some action by the Company in furtherance of the ginning enterprise.

The Company, as movant for summary judgment, assumed the negative burden of showing that, as a matter of law, plaintiff had no cause of action against it. Gibler v. Houston Post Co., 310 S.W.2d 377 (Tex.Civ.App., 1958, writ ref’d n.r.e.); Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex.Civ.App., 1953, writ ref’d n.r.e.). Because of the ambiguity of the language of the written agreement, it is impossible to determine, without the aid of extrinsic evidence, the true intent of the parties concerning the ginning operation. The record before us does not establish, as a matter of law, that the intent of the parties was to effectuate a complete disassociation of the Company from the management of the gin. While the affidavit of Hoffman recites that, under the agreement, the Company had no interest in the ginning operation and had no right to- control such operation, such recitals are no more than Hoffman’s opinion concerning the correct interpretation of language which falls far short of conveying one plain and unambiguous meaning. The facts sworn to by Hoffman which, if true, would support the conclusion that the ginning operation was the exclusive concern of Garcia are contradicted by much of the testimony of Garcia which was heard without objection during the 1964 hearing.

Further, in his deposition, Pedro Hinojo-sa testified that he was operating the gin in 1962 when plaintiff was injured, having been employed by the Company’s president in 1961.

Evaluation of the record convinces us that reasonable minds might differ as to the truth of a controlling fact situation, namely, the nature of the relationship between the Company and Garcia and of the relationship between the Company and plaintiff. Under such circumstances, the trial court erred in granting the Company’s motion for summary judgment. Boucher v. Texas Turnpike Authority, 317 S.W.2d 594 (Tex.Civ.App., 1958, no writ). See also Tinnin v. Crook, 333 S.W.2d 617 (Tex.Civ.App., 1960, writ ref’d n.r.e.), holding that where there is a question relating to the true meaning of an ambiguous instrument, summary judgment is improper. This rule would certainly seem to be applicable where the resolution of the ambiguity requires a determination of intent by reference to extrinsic evidence which is, as here, inconclusive.

We find in the record two copies of the purported lease agreement other than that introduced by the Company during the voir dire examination of Garcia. Each of these three instruments differs from the other two insofar as Paragraph IX is concerned. In one of the copies the first word in Paragraph IX is “Lessee,” rather than “Lessor,” as in the copy identified by Garcia. In the third copy, the first word in Paragraph IX, as originally written, is “Lessor,” but a line has been drawn through it and the word “Lessee” has been printed by hand above it. We are not convinced that these two additional copies were properly before the court in connection with the motion for summary judgment, but, in any event, their presence in the record merely raises an additional fact issue, since it is apparent that only one of the three copies is a true copy of the instrument actually signed by Garcia and the Company.

Appellant contends that the trial court erred, during the jury trial of the issues relating to Garcia’s liability to him, in admitting testimony to the effect that Garcia was not plaintiff’s employer, and in submitting to the jury the issue inquiring whether, at the time of the alleged injury, Garcia was plaintiff’s employer. Appellant’s theory is that the action of the trial court in granting the Company’s motion for summary judgment conclusively established that the relationship between Garcia and appellant was that of employer and employee. We overrule this contention.

In considering the Company’s motion for summary judgment, the trial court was concerned only with the relationship between appellant and the Company. At most, the action of the trial court in granting the motion for summary judgment merely reflected the court’s conclusion that there was no “evidence” which would support the inference that appellant was the employee of the Company. This conclusion was not dependent for support upon a finding that, as a matter of law, appellant was the employee of Garcia.

There is nothing in appellant’s brief, nor in the record, to suggest that the trial court’s action in granting the Company’s motion for summary judgment in any way hampered appellant in his effort to show that he was the employee of Garcia. The evidence concerning the relationship between appellant and Garcia was fully developed during the jury trial.

The portion of this litigation concerning the liability of appellee Benavides Mill & Gin Company to appellant is severed from the remainder of the case, and the judgment of the trial court granting the motion for summary judgment of Benavides Mill & Gin Company is reversed and the cause is remanded for further proceedings. The portion of the judgment below denying appellant recovery against appellee Alberto Garcia is affirmed.

The costs of this appeal are taxed one-half to appellant, Eliseo Chapa, and one-half to appellee Benavides Mill & Gin Company.


author: MOORE, Justice.

text:
    Harris R. FENDER, Appellant, v. Enis SCHADED, Appellee.
    No. 291.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 19, 1967.
    Rehearing Denied Nov. 16, 1967.

      LeRoy LaSalle, Carthage, for appellant.
    Ramey, Brelsford, Flock & Devereux, Jack Flock, Michael A. Hatchell, Tyler, for appellee.
   MOORE, Justice.

Plaintiff, Enis Schaded, brought this suit against defendant, Harris R. Fender, for title and possession of a one-acre tract of land lying in the Isaac Renfro League in Smith County, Texas, and also sought judgment to enjoin defendant from interfering with his use of a certain roadway leading north from the said one-acre tract across defendant’s intervening land for a distance of 290 feet to Texas Farm Road No. 850. Prior to trial, defendant disclaimed as to any interest in the said one-acre tract, but denied that plaintiff or his predecessors in title had acquired any right to a use of a roadway across his land.

For cause of action for injunctive relief, plaintiff alleged that in 1922, Maryann Warren was the owner of a 119½ acre tract of land in the Isaac Renfro League and that on December 8, 1922, she conveyed one acre out of said tract to Tull Choice, plaintiff’s predecessor in title; that at the time of the said conveyance, there was a roadway from Texas Farm Road No. 850, leading in a southerly direction across the Warren tract to the one-acre tract which she conveyed to Tull Choice. Plaintiff further alleged that the sale of the said one-acre tract, out of the larger tract, prior to the time Maryann Warren conveyed the remainder of the tract to the defendant’s predecessor in title, was made under circumstances which created an easement by implied grant entitling plaintiff to use the roadway across defendant’s land to said Farm Road No. 850. His prayer was for an injunction enjoining defendant from fencing said one-acre tract or from interfering with plaintiff’s use of the roadway. From a judgment granting the injunctive relief as prayed for, defendant perfected this appeal.

The facts established by the court’s findings, insofar as material, may be thus summarized :

On December 8, 1922, Maryann Warren, defendant’s predecessor in title, owned a 119½ acre tract of land in the Isaac Ren-fro League. The North side of the tract was bounded by a public road known as the Old Overton Road, which has since been designated as Texas Farm Road No. 850. On said date, and pri- or thereto, there was a roadway across the land which commenced at the Old Overton Road and ran across the tract in a Southerly direction. On said date, Maryann Warren conveyed Tull Choice, plaintiff’s predecessor in title, a one-acre tract of land out of the above mentioned tract. The one-acre tract conveyed was situated upon the roadway and lay approximately 290 feet South of the Old Overton Road.

At the time of the conveyance, the roadway between the Old Overton Road and the one-acre tract was approximately 25 to 28 feet in width and was being used continuously as a means of ingress and egress from the Old Overton Road to said one-acre tract and that such conveyance was made with the understanding that the roadway would be used as a means of ingress and egress from the Old Overton Road to the one-acre tract. Prior to the grant, Tull Choice owned an 84.07 acre tract of land in the B. C. Walters Survey which adjoined the one-acre tract on the south. Thus, the one-acre tract was bounded on the north, east and west by property owned by Maryann Warren and on the south side by the property owned by Tull Choice in the B. C. Walters Survey. At the time of the grant, the roadway was well-marked on the ground and was being used as a means of ingress and egress from the Old Overton Road to the one-acre tract and across the one-acre tract to the adjoining property owned by Tull Choice in the Walters Survey. After acquiring the one-acre tract, Tull Choice built a house thereon, which was occupied by him and others until the same was torn down in 1963. Tull Choice and others used the roadway leading from the one-acre tract to the Old Overton Road continuously, open and visibly as a means of ingress and egress, and such means of ingress and egress to the said one-acre tract was and has been a most feasible method of reaching the one-acre tract from the Old Overton Road which is the nearest public roadway. By mesne conveyances from Tull Choice, the title to the one-acre tract, as well as to the 84.07 acre tract in the B. C. Walters Survey became vested in the plaintiff on February 8, 1956, at which time he continued to make use of the roadway as a means of ingress and egress to the one-acre tract. By mesne conveyances from Maryann Warren, defendant, on or about September 22, 1961, and on various subsequent dates, acquired title to the Maryann Warren tract in the Renfro League save and except the one acre in question. In the latter part of 1963 and early 1964, defendant caused to be erected a fence on the south boundary line of the Renfro League, thus separating the one-acre tract from plaintiff’s 84.07 acre tract in the B. C. Walters Survey and preventing plaintiff access thereto. Defendant also closed the roadway to the one-acre tract by erecting a fence along the south side of the Old Overton Road (Farm Road No. 850). The trial court further found that at all times since 1922, the said road had been visible on the ground and had been continuously in use as a means of ingress and egress until defendant erected the fence across the road. The court also found that the use of the roadway was necessary to the use of the one-acre tract and not a mere convenience; that such necessity had existed since December, 1922, and that the plaintiff had no other means of reaching his one-acre tract without trespassing upon the property of others and that there had been no abandonment of the roadway.

In the conclusions of law, the court found that defendant had no right to place a fence along the south boundary line of the one-acre tract and that he should be required to remove the same. The court further found that at the time of the grant of said one-acre tract from Maryann Warren to Tull Choice, there was granted by implication an easement appurtenant in favor of said one-acre tract as the dominant estate for the use of the roadway, as means of ingress and egress from Farm Road No. 850 (Old Over-ton Road) to plaintiff’s one-acre tract and that the defendant’s lands, as the servient estate, were burdened with such easement appurtenant and defendant had no right to fence or enclose the same or to do any act which would prevent the free use of said roadway as a means of ingress and egress by the dominant estate.

Defendant contends first that the judgment must be reversed because there was no evidence showing a necessity for an implied easement over the roadway in question. In this connection, defendant takes the position that plaintiff was required to prove “strict” or “absolute” necessity. He therefore argues that since there was some evidence showing that at the time of the grant, the road in question extended not only from the Old Overton Road (Farm Road No. 850) in a southerly direction to the one-acre tract, but continued across the 84.07 acre tract in the B. C. Walters Survey and connected with other roads south of said survey and finally connected with the Henderson Highway, the roadway claimed by the plaintiff over the Maryann Warren tract was not a necessity, but a mere convenience and therefore plaintiff failed to prove that he was entitled to an easement under the requirements set forth in Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397 and Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637.

Plaintiff, on the other hand, contends that since his cause of action and the judgment based thereon is based upon an implied easement appurtenant to the grant, he was not required to show an absolute necessity, but was only required to show that the easement was reasonably necessary for the convenient and enjoyable use of the property as it existed when the severance was made.

It is now recognized that there is a distinct difference in the proof required to establish a way by necessity and that required to establish an implied easement appurtenant. 28 C.J.S. Easements § 35, page 697; Barrick v. Gillette, (Tex.Civ.App.), 187 S.W.2d 683.

As we understand it, the judgment does not rest upon a finding or adjudication of the existence of an easement by way of necessity. Therefore, the cases cited by defendant do not appear to be in point. The judgment specifically decreed that the plaintiff, was entitled to an “easement appurtenant upon and across the land of the defendant.” Nothing is said therein with reference to a way by necessity. The judgment further recited that “any relief sought herein by either party, unless expressly granted herein, is denied.” As we view it, the judgment is based solely upon the finding of an implied easement appurtenant and not upon a finding of an easement by way of necessity. Our remarks will therefore be limited to that theory of recovery.

In discussing the principle of an easement appurtenant, the Supreme Court of this state in Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, said:

“ * * * The correct rule of law governing this phase of this case is stated in 28 C.J.S. Easements § 31, p. 687, et seq., as follows:
‘Where the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.’ ”

The case of Drye v. Eagle Rock Ranch, 364 S.W.2d 196, (Tex.Sup.Ct., 1963), cited by both parties, lays down four essential elements necessary to the establishment of an implied easement appurtenant, to-wit: (1) there must have originally been unity of ownership of the dominant and servient estate ; (2) the use of the easement must have been apparent at the time of the grant; (3) the use of the easement until the time of the grant must have been continuous and so conspicuous as to indicate permanence; and (4)the easement must be reasonably necessary to a fair and enjoyable use of the dominant estate.

In passing upon whether or not there is any evidence in the record to support the court’s finding upon each of the foregoing elements, we are required to disregard all evidence adverse thereto and consider only evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold the findings, and judgment based thereon. Brown v. Frontier Theaters, Inc., 369 S.W.2d 299, (Tex.Sup.Ct.); Barrick v. Gillette, supra, (citing cases).

It is without dispute that Maryann Warren was the original owner of both the dominant and the servient estates. Without attempting to detail the testimony of each witness, suffice it to say that several witnesses testified that they were familar with the road at the time of the conveyance of the one-acre tract; that the road was in existence at that time and was being used by the public. These and other witnesses testified that the roadway was used continuously, both before and after the grant. There was also testimony showing the road had been in use at all times subsequent to the grant until the time of trial, and that same was visible upon the ground, being approximately 24 to 28 feet in width. Although the evidence is not without dispute, we believe there was evidence of probative force to sustain the finding that the roadway was at all relevant times both apparent and continuous. Wells v. Yarbrough, 84 Tex. 660, 19 S.W. 865. The only question remaining is whether use of the roadway was necessary to the use of the dominant estate.

In implying an easement by grant, our courts have adopted the rule of reasonable, rather than strict, necessity. Scarborough v. Anderson Bros. Const. Co., Tex.Civ.App., 90 S.W.2d 305, 310 (citing cases).

The degree of “necessity” required to establish an easement by implied grant is merely such as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. 28 C.J.S., Easements § 33, p. 692; Howell v. Estes, 71 Tex. 690, 694; 12 S.W. 62; Miles v. Bodenheim, (Tex.Civ.App.), 193 S.W. 693; Barrick v. Gillette, supra; Drye v. Eagle Rock Ranch, Inc., supra; Bickler v. Bickler, 403 S.W.2d 354, (Tex.Sup.Ct.).

“The basis of the general principle as to the implication of an easement from a pre-existing use is the presumed or probable intention of the parties to the conveyance, as disclosed by all the circumstances surrounding the transaction. A presumption frequently invoked is that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction. Whether an easement arises by implication, however, must depend upon such matters as the extended character of the user, the nature of the property, the relation of the separated parts to each other, and the existing degree of necessity for giving such construction to the conveyance as will give effect to what may be supposed to have been, considering the manner of use, the reasonable intendment of the parties. * * * ” 25 Am.Jur.2d, Sec. 28, p. 442.

Defendant insists that in view of the undisputed testimony in the record showing that at the time of the grant the roadway in question did not stop at the one-acre tract, but extended in a southerly direction and eventually connected with a public road known as the Henderson Highway, the evidence conclusively shows that another access was available at the time of the grant and therefore the trial court’s finding of “necessity” is not supported by the evidence. The testimony in this connection shows that the roadway extending south of the one-acre tract was known as a “plantation” road. It ran south across unenclosed lands owned by others and eventually connected with the Henderson Highway at a distance of approximately 3½ to 4 miles from the one-acre tract. While such evidence appears to be without dispute, the evidence also shows that the one-acre tract was situated near the north end of the roadway only 290 feet south of the public road known as the Old Overton Road. It must be presumed that the parties contracted with circumstances in mind. Moreover, the witness Marthalean Choice, daughter of Tull Choice, the grantee in the deed, testified that she was familiar with the transaction in which her father traded Maryann Warren an acre of land in exchange for the one acre in question and that the purpose of the trade was to afford Tull Choice access to the Old Overton Road. This testimony, together with the fact that the one-acre tract was situated in close proximity to the Old Overton Road and was conveyed in such a manner that it would be situated upon the roadway in question, would be sufficient evidence to support the finding that parties intended that the grant include the right to use the road as well as the finding that such use was reasonably necessary to the convenient and comfortable enjoyment of the property. When viewed in a light most favorable to the plaintiff, we have concluded that the evidence is sufficient to support the judgment unless other contentions made by the defendant are sustainable.

One of these contentions is that the court’s finding that the easement had not been abandoned is not supported by the evidence. We overrule this contention.

The term “abandoned” generally means a relinquishment of the possession of a thing by the owner with the intention of terminating ownership, but without vesting it in anyone else. It is a question of fact to be ascertained from all the facts and circumstances. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922; Woodman of the World Camp No. 1772 v. Goodman, (Tex.Civ.App.), 193 S.W.2d 739.

While there is some evidence in the record showing that the roadway had, over a period of time, grown up in weeds and bushes, there was other testimony showing that it remained open and visible at all times and that the various owners of the one-acre tract continuously used it as a means of ingress and egress. At most, the testimony in this respect was conflicting and under such circumstances it is well settled that this Court is bound by the findings made by the trier of the fact.

Another contention made by defendant is that the judgment is erroneous because he contends that the evidence conclusively establishes that he was a bona fide purchaser without notice of the easement.

In 28 C.J.S. 713 Easements § 49, it is stated:

“The law imputes to a purchaser such knowlege as he would have acquired by the exercise of ordinary diligence. * * * The Grantee is bound where a reasonably careful inspection of the premises would disclose the existence of the easement, or where the Grantee has knowledge of facts sufficient to put a prudent buyer on inquiry. It is not necessary that the easement be in constant and uninterrupted use. * * * ”

Here again, the evidence is conflicting upon the question of whether or not the roadway was apparent on the ground and also as to whether or not defendant had knowledge of facts sufficient to put a prudent buyer on inquiry as to the existence of an easement. There is testimony in the record to the effect that at the time defendant purchased the servient estate, the roadway was open and visible. Such testimony, we think, was sufficient to support the court’s finding in this respect.

By other points of error, the defendant challenges the judgment on the ground that same is against the overwhelming weight and preponderance of the evidence. Each of those points, together with the other points not discussed herein, have been carefully considered and foun4 to be without merit and are accordingly overruled.

Finding no reversible error, the judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    J. A. ROBINSON SONS, INC., Appellant, v. Helen O. WIGART et al., Appellees.
    No. 7727.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 2, 1967.
    Rehearing Denied Oct. 30, 1967.

      Burford, Ryburn & Ford, Dallas, Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, for appellant.
    Warren Burnett and Robert D. Pue, Odessa, for appellees.
   CHAPMAN, Justice.

Helen O. Wigart, her two minor children and the minor child of her deceased husband by a former marriage brought suit against J. A. Robinson Sons, Inc., for the wrongful death of William Robert Wigart, their husband and father. Texas Employers’ Insurance Association, the workmen’s compensation carrier for Wigart’s employer intervened to assert its recoupment rights under the Workmen’s Compensation Act. Wigart, an employee of Bo-man-Chase, was killed on August 1, 1963, when a welding shed fell from a flat-bed truck owned by Robinson and driven by Chester Britain, and struck Wigart. The trial court’s judgment, based on a jury verdict, was rendered for the plaintiffs below.

Boman-Chase, a construction company, was employed by Phillips Petroleum Co. to dismantle a cooling tower which was located at a Phillips refinery. Approximately twelve of Boman-Chase’s employees were engaged in this particular job. Some four days prior to the incident resulting in Wigart’s death, Robinson was contacted by Phillips and made arrangements for Robinson to furnish a truck and trailer and a driver. The tractor or trailer was 8' x 28' with a capacity of 12 tons. The truck was used for the hauling of material from the dismantled cooling tower. When this was completed, a metal welding shed was placed on the trailer and moved to another site. The shed was constructed of corrugated iron, was approximately 28'-30' long and 10'-12' wide. While the shed was being unloaded it slid from the truck and struck Wigart, causing his death.

In response to Special Issues, the jury found: (1) Chester Britain was acting in the course of his employment for J. A. Robinson Sons, Inc.; (2) that Britain was negligent in slacking the winch line immediately prior to the accident; (2b) that such negligence was a proximate cause of Wigart’s death; (4) that Wigart removed a pin at the rear corner of the trailer immediately before his fatal injury; (4b) that such action was not negligence; (5) that it was not open and obvious that Wigart might sustain an injury in the very manner in which he sustained his fatal injury; (5b) that he did not know and appreciate the danger; (6a) that Wigart did not fail to maintain proper lookout; (7) that a gust of wind was not the sole proximate cause of Wigart’s death; (8) that Chester Britain was not a special or loaned employee of Boman-Chase; (9) that Wigart’s death was not the result of an unavoidable accident. The jury awarded a total of $92,500.00 damages to Mrs. Wi-gart and the three minor children. Upon these findings, judgment was rendered for the plaintiffs and intervenor in the amount found by the jury.

Appellant’s first group of points of error attack the judgment against it on the basis of Britain being a special or loaned employee of Boman-Chase. The jury found Britain was acting within the scope of his employment for appellant Robinson, and that he was not a special or loaned employee of Boman-Chase. Appellant contends there is no evidence and insufficient evidence to support these issues. Boman-Chase had a contract with Phillips Petroleum Company to dismantle the cooling tower. During the last four days of the job, Robinson, at Phillips’ request, sent a truck and a driver to the job for the purpose of hauling the dismantled materials to a designated location. The loading and unloading of the material was performed by employees of Boman-Chase. Robinson’s driver only operated the truck and its equipment. No “swamper” or assistant was assigned by Robinson to Britain. The usual duties of such an assistant, such as giving signals to the driver, were performed by various employees of Boman-Chase. The particular job had been completed except for the moving of the welding shed. The' shed was loaded upon the truck by means of pulling it upon the trailer with the winch line on Robinson’s truck with the assistance of another winch truck not owned by Robinson. It was then secured on the trailer by means of chains and the winch line, and then moved approximately one mile to another location. It was during the process of unloading the shed from the trailer that Wigart was fatally injured. It was being unloaded by what was referred to as “shaking it off”. The winch line was unwound two to three feet; the truck was then placed in reverse. It moved two to three feet when the driver applied the brakes. By repeating this process the shed was gradually moved toward the end of the trailer by its own momentum until it reached a “breaking point” and then it would slip from the trailer by its own weight. During this time Wigart was outside the truck on the right side and Miller, another Boman-Chase employee, was on the opposite side. After several “shaking” movements of the truck and while the winch line was loose, the shed fell from the trailer and struck Wigart.

One of the principal questions presented is whether Britain, a general employee of Robinson, became a special or loaned employee of Boman-Chase for this particular operation. A determination of this question calls for the consideration of many factors. It generally depends on which of the employers retains the right of control and direction over the employee and the job the employee was engaged in while performing the act complained of. 57 C.J.S. Master and Servant § 566, page 284-291. Restatement of the Law of Agency, Vol. 1, Section 227. The general rule was stated by our Supreme Court in Producers Chemical Company v. McKay, 366 S.W.2d 220 in the following language:

“If the general employees of one employer are placed under the control of another employer in the manner of performing the services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing their services, they remain employees of the general employer and he is liable for the consequences of their negligence.”

In McKay, the court lists certain factors to be considered where there is only an implied contract between the employers as to the right of control over the employee. These include the nature of the general project; the nature of the work to be performed by the machinery, and employees furnished; acts representing an exercise of actual control; the right to substitute another operator of the machine, etc.

It is undisputed there was no contract whereby Robinson expressly relinquished the right of control of Britain in the operation of the truck and its equipment. Our courts have repeatedly held that the decisive factor in this type of case is the control of the “machine” rather than the control of the results of the work desired. Insurers Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217. Goodwin v. Wilhelm Steel Construction Co. (Tex.Civ.App.) 311 S.W.2d 510 (Writ Ref.). The proper operation of the truck and its winch and gears required some skill and knowledge of its operation. The job was of short duration. The relocation of the welding shed was to have been the last of the work to be performed by Britain on this particular job and this occurred on the fourth day. Employees of Boman-Chase loaded and unloaded the dismantled material onto Robinson’s truck and directed the driver where to haul it. There is no evidence Boman-Chase’s employees exercised any control over Britain’s operations of the truck or its équipment. This was Britain’s responsibility. Robinson had the sole right to substitute another driver for its truck and Robinson charged Phillips by the hour for its truck and driver and the former paid Britain for his services. Under these facts, the only reasonable inference to be drawn is that Robinson, the general employer, had retained control over its driver.

However, appellant strongly urges that in performing the special act of “shaking off” the shed from the trailer, Britain was within the scope of the business of Boman-Chase and under Wigart’s direction and control. They argue the unspool-ing of the winch line was an essential part of unloading the shed and that this operation was under the supervision of Wigart. Appellant’s position is that the determining factor is Wigart’s direction as to the manner in which the truck and winch were to be used to unload the shed and not the manner in which Britain shifted his gears or unspooled the winch line. Under the facts and circumstances of this case this contention is without merit. Insurors Indemnity & Insurance Co. v. Pridgen (supra), and Polanco v. Austin Bridge Company (Tex.Civ.App.) 348 S.W.2d 728. Wigart and Britain both decided the best method of unloading the welding shed was to “shake it off”. Wigart designated the place to unload the shed. Britain placed his truck in position, and when Wigart indicated it was clear, Britain began the “shaking off”. Britain decided when to begin each truck movement and when to unspool the winch. He operated the truck and gears without any direction or signal from Wi-gart. Britain was in full control of the truck and its equipment and how and when it was to be used. There was ample evidence to support the jury finding Britain was acting within the scope of his employment of Robinson and was not a loaned employee of Boman-Chase.

Appellant levelled numerous objections to Special Issue No. 1 and the accompanying definition of “course of employment”. The issue inquired if Britain was acting within the scope of his employment for Robinson “at the time of the accident in question”. It is urged the issue did not confine the question of employment to the “shaking off” operation; the issue was a comment on the weight of evidence in assuming Britain was to be viewed as Robinson’s employee in the “shaking off” operation; and challenged the court’s definition of “course of employment”. The special issue, as framed, submitted an ultimate issue under the pleaded doctrine of respon-deat superior. Appellant challenges the issue on the ground the issue should make reference to the time of the “shaking off” operation rather than at the time “of the accident in question” as the issue was quoted. The accident which caused Wigart’s death occurred during the “shaking off” operation. In our opinion, the form of the issue was correct. It cannot be said the issue was confusing or misleading, nor was it a comment on the weight of the evidence. Le Sage v. Smith (Tex.Civ.App.) 145 S.W.2d 308 (Dism.Judg.Corr.). Sears, Roebuck & Co. v. Jones (Tex.Civ.App.) 303 S.W.2d 432 (Ref.N.R.E.).

In connection with this special issue, the court instructed the jury: “By the term ‘course of employment’ is meant an act done in the furtherance of the employer’s business and for the accomplishment of the object for which the employee was employed, whether on the employer’s premises or elsewhere”. This definition properly includes the elements of the term “course of employment” and properly applies the rule of respondeat superior. Texas Power & Light Co. v. Denson (Tex.Com.App.) 125 Tex. 383, 81 S.W.2d 36 (Opinion adopted). Sears, Roebuck & Co. v. Jones (supra).

By Special Issue No. 8 the trial court inquired: “Do you find from a preponderance of the evidence that on the occasion in question Chester W. Britain was not a special or loaned employee of Boman-Chase ?” Appellant urges error in the submission of this issue for the reason it was too broad and general and did not limit the inquiry to the unloading operation. Appellant’s requested issue so limited the right of control to the particular operation but the requested issue was refused. In effect, the objections here stated are the same that were urged to Special Issue No. 1 previously discussed. We are of the opinion the issue as submitted was substantially correct for the reasons previously stated in our discussions of Special Issue No. 1.

In connection with Special Issue No. 8 the trial court gave the following instruction:

“By the term ‘special or loaned employee’, as used herein, is meant a person who, though in the general employ of another company, is turned over to a second company to assist in the performance of-the second company’s employment and in doing and performing or assisting in the performance of the second company’s employment, the employee in the general employment of another becomes subject to the control, supervision or direction of the second company to whom he is turned over, concerning all the details of the particular work being performed and consents to such control, supervision or direction by the second company.
“You are instructed that a transfer of control can be accomplished through implication arising from the circumstances of work done and to be done as well as by express words.”

Substantially the same definition was used in Shell Oil Co. v. Reinhart, 375 S.W.2d 717 (Tex.Sup.). The instruction given contains the essential elements of a special or loaned employee relationship. Appellant’s object that the explanation directed that the borrowing employer must have control of all of the details of the work and that the employee must consent to this control by the borrowing employer. It is true that there are cases which hold that an employee may become another’s servant as to some acts and not as to others. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94. However, we do not think such a rule renders the instruction given here erroneous. The language “concerning all the details of the particular work being performed” does not lend itself to the same meaning urged by appellant. The “consent” referred to in the definition refers to the lending employer and not to the loaned employee. We therefore hold the special issue and accompanying instructions are substantially correct. Appellant has cited no authorities and we have found none which hold to the contrary.

Appellant next contends there is no evidence and insufficient evidence to support the jury finding in Special Issue No. 2 that Britain was negligent in slackening the winch line. In deciding these questions we will adhere to the applicable rules set out in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In passing upon the “no evidence” point we consider only the evidence most favorable to the verdict and disregard the evidence to the contrary. Britain was operating the truck and its winch. After the truck had been spotted and the “shaking off” operation begun, the chains securing the welding shed on the truck had been previously removed. The only thing securing the shed on the trailer were the metal pins inserted along the sides of the trailer and the winch line. Both Britain and Miller testified the wind was blowing rather strongly. Britain testified the wind “at times it would blow real hard gusts; and then it would be a steady wind and blow at gusts * * * ” He stated he could feel the wind and “it would just shake the whole truck”. These conditions existed during the “shaking off” operation and when Britain had slacked off the winch line two or three feet. It was during this time a gust of wind blew the shed from the trailer. Qaude Robinson, owner of appellant company, testified he would not expect one of his drivers to slack off the winch line without a signal to do so. It is uncontradicted Britain did not unspool on Wigart’s signal. He did this on his own volition. The truck was not moving when the shed slid off and Britain was not certain of the whereabouts of Wigart and Miller as the shed blocked his view. We believe there was probative evidence to support the jury verdict.

Miller had removed the pin on the back left side of the trailer and he testified Wi-gart seemed to be having difficulty removing the pin on the right side. However, the record does not show Britain was aware of this. Britain testified the truck was at a standstill and he was waiting for a clear signal from Wigart to again move the truck backward. While so waiting, the winch line was unspooled. Mr. Robinson testified he would not expect a driver to slack off the winch line unless signaled. He testified further the driver would continue without further signals. However, this was contrary to Britain’s stated intention on the particular occasion. The evidence is substantially uncontradicted. The most apparent differences are the emphasis and interpretations placed on the evidence by the respective parties. The jury accepted appel-lees’ version of the evidence. We cannot say the jury verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.

Appellant further contends Special Issue No. 2 is not supported by the pleadings and urges error in that the issue predicates Britain’s action in slackening the winch line under “the circumstances then prevailing”. Appellee pleaded the appellant was negligent “in that defendant failed to keep a proper lookout for decedent, William Robert Wigart, in loosening a winch line on defendant’s truck at a time when defendant’s agent, servant and/or employee knew or should have known, that decedent, William Robert Wigart, was in the vicinity of the rear corner of defendant’s truck * * * ” Appellant contends the allegation related to lookout and not to the slackening of the winch line. The wording of the allegation may be improved upon but we think the pleadings do support the submission of the issue. It placed appellant on notice as to the facts relied upon to show negligence on the part of Britain. Appel-lee’s whole case was tried upon the theory that Britain was negligent in unspooling the winch line under the conditions and circumstances present immediately prior to the fatal injury.

Appellant also challenges the evidence to support the foreseeability of proximate cause of Britain’s alleged negligent act. The courts have allowed juries broad latitude to infer. proximate cause from circumstances surrounding an accident. J. Weingarten, Inc. v. Brockman (Tex.Com.App.) 134 Tex. 451, 135 S.W.2d 698 (Opinion adopted). Houston Natural Gas Corp. v. Pearce (Tex.Civ.App.) 311 S.W.2d 899 (Ref.N.R.E.). To render a negligent act a “proximate cause” of an injury, the precise manner of the occurrence need not have been reasonably foreseen; but if consequences follow unbroken sequence, the fact the wrongdoer at the time of his original negligence might have foreseen, by the exercise of reasonable care, that a similar injury might result from such negligence, is sufficient to render such act a proximate cause. Southwestern Greyhound Lines v. Wafer (Tex.Civ.App.) 208 S.W.2d 614 (Error Ref.). We conclude the evidence previously outlined is sufficient to support the finding of proximate cause.

Appellant takes the position that with the exception of the act of un-spooling the winbh line by Britain, there is no distinction between what Britain and Wigart knew or could have reasonably known as to the foreseeability of Wigart’s fatal injury. The argument is that if the record does not support the findings of causation nor foreseeability as to Britain, the same conclusion must be reached as to Wigart. It follows, argues appellant, that if the record charges Britain with causation and foreseeableness of his acts, the same conclusion must be reached as to Wigart. If this be so, appellant contends, the defenses of no duty and volenti become applicable and present a defense to ap-pellees’ cause of action. In our opinion appellant’s novel and resourceful contention is without merit. Where the assumed risk defenses of “no duty” and volenti are raised, the duty of the defendant is to exercise ordinary care to make the conditions of the premises or instrumentality reasonably safe or to warn the invitee. Ellis v. Moore, 401 S.W.2d 789 (Tex.Sup.) For the “no duty” defense to be sustained it must be shown the danger was open and obvious which the invitee knew or is charged with such knowledge. The jury found the danger was not open and obvious. It was not shown the instrumentality, the slackened winch line, which permitted the shed to slip off was known to Wigart. It is uncontradicted Wigart had not given Britain a signal to again proceed with the “shaking off”. There being evidence to support this jury finding the defense of “no duty” cannot be invoked.

Volenti is an affirmative defense whereby a plaintiff cannot recover from injuries received when he voluntarily exposed himself to a known and appreciated danger. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.). The jury found Wigart did not know and appreciate “that he might sustain injury in the very manner in which he did sustain his fatal .injury”. Knowledge and appreciation of the dangerous condition or activity are essential requirements of the defense of volenti. J. & W. Corporation v. Ball, 414 S.W.2d 143 (Tex.Sup.). The voluntary exposure requirement was not submitted to the jury. This record does not.support the affirmative defense of vo-lenti.

Appellant asserts there is no evidence and insufficient evidence to support the jury finding a gust of wind was not the sole proximate cause of Wigart’s death. The testimony concerning this issue has been set out at some length in connection with another point of error previously discussed. We see no need to repeat it here. We simply reiterate there was sufficient evidence to support this jury finding.

The appellant next complains of the refusal of the trial court to submit certain requested special issues. These include: (1) an issue inquiring as to Wi-gart’s negligence in failing to utilize the other pins available before removing the pin in question; (2) an issue inquiring as to Wigart’s negligence in removing the pin while the wind was gusting; (3) an inquiry as to Wigart’s negligence in placing himself in a position where he could be struck by the shed; (5) an issue inquiring if the gust of wind, together with the removal of the pin was a sole proximate cause. Appellant acknowledges that the trial court submitted two of the five alleged acts of negligence on the part of Wigart, but insists that the three requested issues submitted separate and independent defensive theories and should have been submitted. We cannot agree. The court submitted Special Issue No. 4b inquiring if Wigart’s act of removing the pin “under the circumstances then prevailing” was negligence. The jury answered in the negative. There was no evidence the utilization of other pins prior to removing the rear pin would have prevented the shed from slipping from the trailer. We think the ultimate issue was properly submitted. Rule 279, Texas Rules of Civil Procedure. The requested issue inquiring if Wigart was negligent in placing himself in a position where he could be struck is not an ultimate issue in the light of the issues actually submitted. The jury found the danger was not open and obvious; and that Wigart did not know and appreciate the dangerous condition. An affirmative answer to the requested issue would have been, in conflict with the above findings. In-addition, the jury found Wigart did not fail to keep a proper lookout. The requested issue is related to the lookout issue submitted. The requested issue inquiring if a gust of wind, together with the removal of the pin was not the sole proximate cause of Wigart’s death was properly refused. Several acts claiming to be the sole proximate cause should not be submitted in one issue. Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111. Appellant’s points of error 32-35 were overruled.

Numerous objections are leveled to Special Issue No. 3, the damage issue, and the instructions given with it. The court’s instruction in connection with the damage issue reads in full:

“In connection with the above issue and your answer thereto you are instructed that you can only consider the pecuniary loss, if any, sustained by each plaintiff, and you cannot allow plaintiffs anything by reason of consolation for the death of William Robert Wigart, or for any sorrow, anguish, or grief suffered by these plaintiffs as a result of his death.
“By pecuniary loss, if any, sustained by Helen O. Wigart, surviving wife of William Robert Wigart, is meant that you may take into consideration loss of maintenance and support, if any, services, if any, contributions from the earnings of William Robert Wigart, if any, and care and counsel, experience, knowledge and judgment in managing her affairs, his personal attention, protection and assistance, if any, that the said Helen O. Wigart would in all probability have received from the said William Robert Wigart, during his lifetime, had he lived.
“By pecuniary loss, if any, sustained by Kim Edwin Wigart and William Franklin Wigart, minor children of the said William Robert Wigart, deceased, is meant that you may take into consideration loss or maintenance, support, value of services, if any, which deceased would have rendered in training and educating of these children; care, counsel and advice, moral advice, nurture, and training, if any, of these children, the said Kim Edwin Wigart and William Franklin Wigart, would in all reasonable probability have received from the said William Robert Wigart, during the minority of each of the said minors, had he lived.
“By pecuniary loss, if any, sustained by the plaintiff, Larry Dean Wigart, is meant loss of maintenance and support, if any, during the minority of said minor.”'

It is argued the charge did not exclude loss for society, affection and companionship; that the instruction permitted recovery for both “care” and “personal attention, protection and assistance” permitting double recovery for both the wife and children; that “counsel and advice” and “training” were treated as separate elements; that “care” was used twice as an element of damages; that “maintenance and support” overlap “nurture and care”; and that the instruction constituted a comment on the weight of the evidence through failure to interpose the precautionary term “if any” to separate the damage items. When the language of the instruction as a whole is considered, the absence of the exclusion “society, affection and companionship” is not erroneous. The court instructed the jury “you can only consider the pecuniary loss, if any, sustained * * * and you cannot allow plaintiffs anything by way of consolation for the death * * * or for any sorrow, anguish or grief sustained as a result of his death.” The language of the instruction contains the proper exclusion when it is read in connection with the instructions as a whole. Minor children may recover the value of services which a deceased father, in reasonable probability, would have rendered to them in “training, advice and educating them”. Continental Bus Systems, Inc. v. Biggers (Tex.Civ.App.) 322 S.W.2d 1 (Ref. N.R.E.). Appellant Robinson strongly relies on International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S.W. 328 as authority for the alleged error in omitting the exclusion of the loss of “society, affection and companionship”. The general rule in a wrongful death case is that the charge should expressly exclude from the jury consideration the elements of grief, loss and society, mental pain and anguish. Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260. Burlington-Rock Island Ry. Co. v. Ellison (Tex.Civ.App.) 134 S.W.2d 306 (Writ Ref.); 17 Tex. Jur.2d, Death by Wrongful Act, Section 127. Generally, when the court charges the proper measure of damages and excludes any allowance for loss of companionship or as a solace for grief, the charge is affirmatively erroneous, but this rule is applicable only where the measure of damages as submitted, including the exclusions, is broad enough to include elements of damages complained of by the objections. Gillette Motor Transport v. Blair (Tex.Civ.App.) 136 S.W.2d 656 (Dismissed Judg.Corr.). Under this record we do not think the charge is subject to the objections made. Plaintiffs’" recovery was expressly limited to “pecuniary loss if any’’ and the court excluded the jury’s consideration of “consolation * * or for sorrow, anguish or grief” suffered, by plaintiffs as a result of Wigart’s death. We find no reversible error in connection with the above instruction. Rule 434, Texas Rules of Civil Procedure.

Appellant further urges the instructions were calculated to allow a double recovery for both the wife and children. This is based on the use of the words “care” and “personal protection and assistance” in referring to the wife; and the argument is these are separate items of damages. As to the children’s permissive recovery appellant complains of use of the term “care and advice”, “training” and “counsel and advice and moral advice”; that “care” was used twice; and the assertion “maintenance and support” overlapped “nurture and care”. Where the language of an instruction did not mislead a reasonably intelligent jury into allowing compensation twice for the same loss, judgment will not be reversed on such grounds. Southwestern Bell Telephone Co. v. Ferris (Tex.Civ.App.) 89 S.W.2d 229 (Error Dism.). McClung Construction Co. v. Muncy (Tex.Civ.App.) 65 S.W.2d 786 (Error Dism.). The words and phrases complained of are of common usage and their meanings are readily understood. We do not belive the instructions were calculated to mislead the jury. There is no indication they did. No reversible error is presented.

Appellant also points out the instruction to the damages issue was on the weight of the evidence in that there was an assumption certain elements of damages actually existed because of the absence of the phrase “if any” after each element of damages enumerated. This contention is without merit. The explanatory instruction contained the phrase “if any” eight times. It followed each definition of “pecuniary loss” in referring to both the wife and children. The phrase follows either a single element of damages or a series of elements of damages the jury was authorized to consider. There was evidence to support the submission of these elements and we do not think the absence of the phrase after each separate element of damages constitutes a comment on the weight of the evidence. It is not misleading. Each element is somewhat related. We conclude this portion of the charge does not present reversible error. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880.

Appellant next complains of the admission into evidence of the Wigart income tax returns for the years 1952-1963. In compliance with appellant’s counsel’s request, Mrs. Wigart submitted these tax returns to them prior to the trial. As a witness, Mrs. Wigart identified the tax returns. Preceding her testimony as to the deceased’s earnings for each of the years involved, she was referred to the returns “by way of refreshing your recollection”. She then testified to the amounts reflected in each return. Prior to this testimony and prior to the introduction of the returns into evidence, appellant’s counsel offered the objection the “income tax return itself is inadmissible as being hearsay and self-serving and it cannot, by indirection, be placed into evidence under the guise of using it to refresh a witness’ memory.” The general rule is that any writing may be used to revive a present recollection. Texas Law of Evidence, McCormick & Ray, 2d edition, Section 549, and cases there cited. Income tax returns are subject to discovery to the extent of relevancy and materiality. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. Fort Worth Lloyds v. Hale (Tex.Civ. App.) 405 S.W.2d 639 (Ref. N.R.E.). Income tax returns of a plaintiff in a personal injury case are relevant and material to his prior earning capacity. Wigart’s earning capacity is a material issue in this case. Martin v. Jenkins (Tex.Civ.App.) 381 S.W.2d 115 (Ref. N.R.E.); Tex., 384 S.W.2d 123. Under the state of this record, we are of the opinion the objection that the tax returns were hearsay and self-serving were properly overruled. Subsequently to the introduction of the returns into evidence and after the conclusion of the examination of Mrs. Wigart, appellant’s counsel offered an additional objection to the admissibility of the tax returns on the grounds their “accuracy and integrity” had not been established. This latter objection was not timely made even though the trial judge permitted it to be made. It is well settled that an objection to the admission of evidence must be made when the evidence is offered and not after it had been introduced. South Texas Electric Cooperative, Inc. v. Ermis (Tex.Civ.App.) 396 S.W.2d 955. 3 Tex. Jur.2d 392, Appeal and Error—Civil, Section 122. See McCormick & Ray, Texas Law of Evidence, Section 23. We conclude the admission of the tax returns did not constitute reversible error. Rule 434, T.R. C.P.

Appellant further challenges the admissibility of the testimony of witness Womack on the subject of custom and usage in the oil field trucking business. It is undisputed Womack qualified as an expert in the oil field trucking business. His testimony, in effect, was a truck driver, in unloading operations similar to the one Britain was engaged in would not slack off on the winch line without a signal. Evidence of a custom or a usage is admissible to tend to prove what an ordinarily prudent man would do under similar circumstances. Such evidence is not conclusive on the issue of negligence. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445. Mr. Robinson, owner of appellant company, was also questioned concerning the same custom. His testimony contradicted that of witness Womack. It was for the jury to weigh the testimony in considering all special issues dealing with the alleged negligent acts of Britain.

Witness Miller was not permitted to testify that in his opinion the truck itself had nothing to do with the shed slipping off the truck; but that he believed the wind “blowed it off”. It was not shown Miller was qualified to express such an opinion. Britain, the truck driver, was examined at length concerning the wind at the time the accident occurred. In view of these circumstances, the refusal to admit the testimony of Miller was not reversible error.

We have carefully examined all of appellant’s points of error and have concluded they do not present reversible error.

The judgment of the trial court is affirmed.