author: SHARPE, Justice.

text:
    J. P. SMITH, d/h/a Guadalupe Gas Company, Appellant, v. Otto KOENNING et al., Appellees.
    No. 128.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 30, 1965.
    Rehearing Denied Jan. 27, 1966.

      Beckmann, Stanard, Wood & Vance, by John H. Wood, Jr., San Antonio, Denver E. Perkins, Gonzales, for appellant.
    John A. Romberg, Roger M. Dreyer, Gonzales, for appellees.
   SHARPE, Justice.

This appeal is from a judgment rendered after jury trial in favor of Otto Koenning, his wife and minor daughter, appellees here and plaintiffs below, hereafter sometimes referred to as “Koenning”, against J. P. Smith, doing business as Guadalupe Gas Company, appellant here and defendant below, hereafter sometimes referred to as “Smith,” in the amount of $17,400.00, representing damages resulting from a fire on February 23, 1962, which destroyed the residence and other property of appellees.

The judgment is necessarily based upon jury answers to special issues which submitted essential fact questions under the doctrine of res ipsa loquitur. The special issues relating to negligence on the part of Smith were answered favorably to him, and the verdict would not otherwise support a judgment in favor of Koenning.

The basic questions presented relate to whether the evidence was legally sufficient to raise the essential elements of res ipsa loquitur and to support the jury findings made in connection therewith.

Smith was a retail butane and propane gas dealer, doing business as Guadalupe Gas Company in the Nixon, Smiley and Westhoff area. He owned and operated a gas delivery truck which was entrusted to the care, custody and control of Otto Lee Koenning, an employee, who was also the son of appellees’ Otto and Ida Koenning. On the occasion of the fire, the gas delivery truck had been driven by Otto Lee Koenning on to the yard of appellees’ farm residence near Westhoff, Texas, for the purpose of making a delivery of butane gas by transferring it from the truck into a storage tank located on the premises, Before the delivery was made, butane gas escaped from the delivery truck, became ignited, and caused the fire and damages in question under the circumstances hereafter set out. Otto Lee Koenning was the only eye witness to the accident. On the trial of the case he testified, in substance, that as he approached his parent’s residence he saw a horse in his father’s field; that he stopped the butane gas delivery truck on the north side of the residence; that the butane storage tank of appellees was on the south side of the house; that he left the truck unattended in order to chase and catch the horse; that after he caught the horse, saddled it and tied it to a tree, he walked back toward the delivery truck; that, although he did not see it, he heard the hose on the butane side rupture or burst and gas escaping; that he had not reached the truck when this happened; that the gas was coming from the right hand side of the front part of the propane tank; and that shortly thereafter the gas was ignited and the fire occurred. Appellees were not at home at the time of such event. Otto Lee Koenning, prior to the trial, had made a number of statements which were contradictory in some respects to his testimony at the trial, and appellant attempted to impeach his testimony on such basis.

The evidence undisputedly establishes that. the employment of Otto Lee Koenning was of a general nature; that he was on duty 24 hours a day 7 days a week in connection with Smith’s business; that Smith’s delivery truck was entrusted to Otto Lee Koenning at all times whether he was engaged in delivering gas for Smith or attending to his own business.

The charge of the Court included 28 special issues, but the jury answers with which we are primarily concerned are those on Special Issues 1, 19, 20, 21, 22 and 23. The substance of such findings will be summarized. In answer to Special Issue 1 the jury found that at the time and place of the fire on February 23, 1962, Otto Lee Koenning was acting in the scope of his employment as a driver and salesman for Smith. In answer to Special Issue 19 the jury found that Smith in person or by his employees was in exclusive possession of the tanks, trucks, plumbing, pipes and fittings at the time of and for a reasonable time prior to the fire. In answer to Special Issue 20 the jury found that gas escaped from the tanks, plumbing, piping, and fittings of defendant Smith at or immediately prior to the fire in question. In answer to Special Issue 21 the jury found that the escaping of gas from defendant’s tanks, trucks, hoses, pipes and fittings, at and immediately preceding the fire, was something that does not ordinarily happen if those in control of same exercise due care. In answer to Special Issue 22 the jury found that Smith was negligent in the operating or maintenance of his truck, tanks, piping, hoses and fittings in question at and immediately prior to the fire on February 23, 1962. In answer to Special Issue 23 the jury found that the negligence of Smith was a proximate cause of the fire. Issues 2 through 18 inquired concerning specific acts, omissions or negligence on the part of Smith, together with related issues as to proximate cause; and, with the exception of Issue 16, all of the issues unconditionally submitted were answered favorably to Smith. In answer to Special Issue 16 the jury found "that the truck, tanks, plumbing and fittings of the defendant J. P. Smith was operated on plaintiffs’ (appellees) premises on February 23, 1962, with the manual cut-off valve from the propane tank in an open or partially open position.” However, in answer to Special Issue 17 the jury found that such fact (open position of cut-off valve) was not negligence. Disposition of this case does not turn upon Issues Numbers. 24 through 28. Issue 24 was answered favorably to Koenning, to the effect that the occurrence was not an unavoidable accident. Issue 25 was eliminated by stipulation. Issues 26 through 28 fixed the damages.

On this appeal Smith, by four points of error, contends that the trial court erred in holding that Koenning adduced sufficient evidencé of probative force to prove (1) that all of the instrumentalities allegedly causing the fire were in the exclusive possession and control of appellant because it is undisputed that appellant’s employee, Otto Lee Koenning, was not acting in the course and scope of his employment at the time of the fire, or (2) that the appellant had superior knowledge of the cause of the fire or the alleged defect causing such fire, and that “direct” evidence necessary for appellees to prove specific acts of negligence against appellant was shown to be wholly unavailable to appellees, to the extent that only the appellant would, of necessity, be aware of the cause of such fire, or (3) to establish that the fire was of such nature as not ordinarily to occur in the absence of negligence of the appellant, or (4) that there was a total absence of a reasonable explanation by the appellant, which would possibly rebut negligence on his part. On oral argument, counsel for Smith has reiterated that these are all “no evidence” points. Although Smith contends that there must be evidence of probative force to show the existence of all four of the above-mentioned elements, he concedes that only two of them (i. e., (1) exclusive possession control, mentioned in point one, and (2) nature of the occurrence as one not ordinarily happening without negligence, mentioned in point three) are ultimate jury issues. There is no contention that appellees were in any way at fault in connection with the accident.

Disposition of this case depends largely upon appellant’s point one, which will hereafter be discussed in detail. Appellant’s points two and four, involving the questions of superior knowledge and explanation by appellant, are closely related to and grow out of appellant’s possession or control. Appellant’s point three presents no difficulty. The character of the accident is one that does not ordinarily happen in the absence of negligence, and there is abundant evidence of probative force to establish such fact and-to support the jury finding to such effect.

Smith’s basic contention under his point one is that there was no evidence to support the finding of the jury on Special Issue 19 that “the defendant in person or by his employees was in exclusive possession of the tanks, trucks, plumbing, piping and fittings at the time of and for a reasonable time prior to the fire in question.” He argues that the evidence establishes that Otto Lee Koenning deviated from his employment for a period of 10 to IS minutes in chasing and catching a horse for purely personal reasons; that Otto Lee Koenning was not within the scope of his employment for Smith when the hose broke on the delivery truck nor when the fire started; that such facts demonstrate that there was no evidence to support a finding that the truck was in the exclusive possession and control of appellant; and, therefore, the doctrine of res ipsa loquitur was inapplicable to this case. Smith also contends under his point one that since there is direct proof by Koenning as to the forces which operated together to cause the escaping gas to ignite, and that, particularly, the evidence points to the fact that an open flame of a nearby water heater was maintained by Koenning, and that there is no evidence to show that Smith had the right to control the flame or that Smith knew where the flame was located before the fire or that Smith knew that if gas escaped it would probably direct itself to the flame, that res ipsa loquitur does not apply.

Koenning contends that the ultimate question is whether Smith had possession and control of the delivery truck from which gas escaped, became ignited and destroyed appellees’ property; that the question of scope of employment is an eviden-tiary one which is included within "he ultimate issue of possession and control by Smith; that, in any event Otto Lee Koen-ning was acting in the scope of his employment; that it was not necessary for Smith, in person or by an employee,, to be physically in possession of the delivery truck at the specific moment of the injury in order for res ipsa loquitur to be applicable; that, in legal contemplation, the delivery truck was in Smith’s possession or custody and under his management and control at the time the gas escaped and caused the damages in question; that control of the water heater flame by Smith was not essential to application of res ipsa loquitur; that LP gas is a dangerous agency and that Smith owed a duty to the general public to prevent gas from escaping from his delivery truck wherever it was located; and that where the servant is permitted to mix his private affairs with those of the master the courts will not undertake fine distinctions and fix with precision the line which separates the act of the servant from that of the master. We agree with appellees’ contentions.

In the recent case of Bond v. Otis Elevator Company, 388 S.W.2d 681, 686 (Tex.1965) our Supreme Court had reiterated the essential elements of res ipsa loquitur as follows:

“In the case of Honea v. Coca-Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445, the court said:
‘Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer. Washington v. [Missouri] K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764; Texas & P. Coal Co. v. Kowsi-kowski, 103 Tex. 173, 125 S.W. 3; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.’ ’’

Even when the above-mentioned elements are established so as to make the doctrine of res ipsa loquitur applicable, the issues of negligence and proximate cause must be properly established. In this case, the jury findings were favorable to Koenning and established all four of the above-mentioned issues in his favor, i. e., the two elements necessary to make the doctrine of res ipsa loquitur applicable and on the issues of negligence and proximate cause.

Texas Appellate Courts have approved the oft-quoted passage from Justice Pitney’s opinion in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, as follows:

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.”

See: Gulf, C. & S. F. Ry. Co. v. Dunman, Tex.Com.App., 27 S.W.2d 116, 72 A.L.R. 90; Benkendorfer v. Garrett, 143 S.W.2d 1020 (Tex.Civ.App., 1940, opinion by Norvell, J.); Gandy v. Southwestern Bell Telephone Co., 341 S.W.2d 554, 85 A.L.R.2d 833 (Tex.Civ.App., 1960, n. w. h., opinion by Pope, J.).

Judicial knowledge may be taken of the inherently explosive and dangerous nature of butane gas. Bussey v. Mack, 209 S.W.2d 385 (Tex.Civ.App., 1948, n. w. h.). The Legislature has recognized such facts by passing statutes relating to the subject of Liquefied Petroleum Gas. See Art. 6066d, Vernon’s Ann.Civ.St., known as “The Liquefied Petroleum Gas Code” or “LPG Code”. That Statute, among other things, provides as follows:

“Sec. 3. A. General. The Railroad Commission of Texas is hereby authorized, empowered, and directed, and it shall be its duty to promulgate and adopt, in accordance with this Act, adequate rules, regulations, and/or standards pertaining to any and all aspects or phases of the LPG industry (except as provided in Subsection D. of this Section) which will protect or tend to protect the health, welfare, and safety of the general public.”

Other sections of the Statute relate specifically to various aspects of the LPG industry, such as containers, tanks, appliances, systems, equipment, trucks, trailers, other motor vehicles, licenses, dealers, employees, applications, hearings, registrations, fees, investigations, bonds, insurance, inspections and penalties. Pursuant to the Statute, The Railroad Commission of Texas has promulgated regulations known as LPG Docket No. 1 (1961), a copy of which was offered in evidence herein.

In addition to the provisions of the Statute and Regulations just mentioned, the rule is well settled that those who distribute a dangerous article or agent owe a degree of protection to the public proportionate to and commensurate with the dangers involved. McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 447 (1941); Lane v. Community Natural Gas, 133 Tex. 128, 123 S.W.2d 639 (1939). In connection with a master who uses dangerous instrumentalities in the prosecution of his business, it has been held in the case of Atex Construction Co. v. Farrow, 71 S.W.2d 323, 325 (Tex.Civ.A.pp. 1934, n. w. h.) that

“ * * * when he intrusts them to a servant or employee, the proper custody and use thereof become a part of such servant’s or employee’s employment, and he must use the same degree of care and attention as the law requires of the master; and, when such dangerous instrumentalities are negligently permitted to escape the custody or possession of the servant or employee and injury is done to a third person, the master is liable for the consequences of such injury. The master is also liable for the passive negligence of his servant or employee in failing to safely keep such dangerous instrumentalities committed to his care in the discharge of the master’s business and in failing to take proper precautions for the protection of the public. Branch v. I. & G. N. Ry. Co., 92 Tex. 288, 47 S.W. 974, 71 Am.St.Rep. 844; City of Lubbock v. Bagwell (Tex.Civ.App.) 206 S.W. 371, writ of error refused; Moore v. Jefferson City Light Co., 163 Mo.App. 266, 146 S.W. 825; Clark v. Du Pont de Nemours Powder Co., 94 Kan. 268, 146 P. 320, L.R.A.1915E, 479, Ann.Cas.l917B, 340; Pittsburgh, etc., Ry. Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L.R.A. 464, 21 Am.St.Rep. 840; Little v. McCord Co. (Tex.Civ.App.) 151 S.W. 835; 29 Tex.Jur. 420, § 249 ; 39 C. J. 1288, § (1483) (b).”

Smith’s reliance here on the case of Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367 (1906), is misplaced. In that case the defendant’s employee inflicted the injury in question while engaged in an independent affirmative act whereby he diverted an air hose away from the master’s business and used it for his own amusement. There the master was properly held not liable. In deciding the case, the court discussed several examples wherein the servant, in pursuing his own business or pleasure, neglects also to perform some duty which rests upon the master, and may make the master responsible if injury falls upon another as the consequence of that neglect. At page 1078 of the opinion the court said:

“It may be just to charge a master with liability for the failure of a servant to properly guard a dangerous agency, with the duty of guarding which the servant has been intrusted, when, in consequence of such failure, injury proximately results to another; but to say that the master, assuming that there has been no negligence in selecting and retaining the servant, is liable for the independent act of that servant in diverting the thing from the master’s business, and using it in his own, or as an instrument of malice or amusement, is to lose sight of the principle underlying the whole subject. The distinction is thus illustrated in the Shields Case [Pittsburgh, C. & St. L. Ry. Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658]: ‘To better illustrate the ground of this distinction, we may, for example, suppose a servant, with others under his control, employed with a construction train, repairing the track of his master. He may, for a time, quit his employment, and, with his men, go off on affairs of his own. Whilst thus out of the master’s employment, he may build a fire which, through his negligence, may consume the property of another, and, in the meantime, loss of life and property may result from a collision with the train negligently left standing on the track. Now whilst, as has been held, the master would not be liable for the loss resulting from the fire, because the act was done outside the servant’s employment (Morier v. Railway Company, 31 Minn. 351, 17 N. W. 952, 47 Am.Rep. 793), yet it is equally certain that, for the loss occasioned by the servant’s negligence in leaving the train on the track, the master would be liable in damages, for the plain reason that, in abandoning the custody of the train, he was guilty of negligence in the employment of the master, whilst, in building the fire, he was not.’ Railway v. Shields, 47 Ohio St. 394, 24 N.E. 658. In the case here stated the train and the engine drawing it would be eminently dangerous forces which may give rise to dangers in many different ways, and they are of such a character and so used that it is difficult for any employe connected with them to so completely divert them, or any of their more dangerous parts, such as their whistles, their steam, - and the like, from the railroad operations as to entirely disconnect his personal use of them from his use as a servant.”

The rule is also well settled that where a servant is permitted at his own discretion, to mix his own private affairs with those of the master, or even to attend to both at substantially the same time, the courts will not undertake to make nice distinctions and fix with precision the line that separates the act of the servant from the act of the master, where it appears that the act in question occurred at a time when the servant was engaged in the performance or furtherance of matters coming within the general scope of his employment; and the master will be held responsible, unless it clearly appears that the servant could not have been directly or indirectly serving his master in the act, the negligent performance of which caused the injury. See Smith v. Conner, 211 S.W.2d 630 (Tex.Civ.App.1948, n. w. h.), and the cases therein cited; Wilhoit v. Iverson Tool Co., 119 S.W.2d 709 (Tex.Civ.App.1938, wr. dism. by agreement); Josey-Miller Company v. Sheppard, 357 S.W.2d 488 (Tex.Civ.App. 1962, n. w. h.) ; Texas Power & Light Co. v. Evans, 225 S.W.2d 879 (Tex.Civ.App.1949, n. w. h.). In the last-cited case, in connection with the issue concerning scope of employment, the court, on rehearing said:

“As stated in our original opinion, this, under the circumstances here, was a controverted jury issue. We find the clearest statement of the rule in an opinion by the then Chief Justice Cardozo of the Court of Appeals of New York in Marks’ Dependents v. Gray et al., 251 N.Y. 90, 167 N.E. 181, 183, which was cited with approval by this Court in McKim v. Commercial Standard Ins. Co. [Tex.Civ.App.], 179 S.W. 2d 357, writ refused. The test in the Marks case was stated as follows: ‘The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clawson v. Pierce-Arrow Motor Co., 231 N.Y. 273, 131 N.E. 914. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.’ ” 225 S.W.2d 883.

Under his point one Smith also contends that since there is direct proof by Koen-ning as to the forces which operated together to cause the escaping gas to ignite, and particularly that the evidence points to the fact that an open flame of a water heater was maintained by Koenning, there is no evidence to show that Smith had a right to control the flame, or that Smith knew where the flame was located before the fire, or that Smith knew that if gas escaped it would probably direct itself to the flame, that res ipsa loquitur does not apply. In the case of Wichita City Lines v. Puckett, 156 Tex. 456, 295 S.W.2d 894 (1956), the court said:

“The bus company contends that there is no evidence showing how the fire started. It is suggested that the soldier who briefly talked with Ferguson may have thrown down a lighted match or cigarette or that a nail in his shoe may have struck a spark from the concrete floor. It was also suggested that oily rags in a small tool room may have ignited spontaneously or that a spark may have been generated by static electricity or come from defective wiring. Other suggestions were made but there was no proof of the origin of the igniting spark or flame. However, in our view of this case the origin of the igniting spark or flame is immaterial.” 295 S.W.2d 896-897.
* * ⅝ ⅝ ⅜ *
“We believe that the evidence supports the other findings of the jury as to negligence and proximate cause but there is no necessity for discussion of these other findings. Through the negligence of the bus company gasoline fumes were allowed to escape into the building where they settled near the floor and created a highly dangerous situation. The bus company is not relieved of the consequences of this negligence because the spark that ignited the fumes was of unknown origin. It could have foreseen that the highly inflammable fumes were likely to be ignited, and the fact that a soldier deliberately or negligently ignited them by dropping a lighted match or cigarette, or that a spark or flame of unknown origin ignited the fumes, does not break the chain of causation. Robert R. Walker, Inc., v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506; Texas Co. v. Gibson, Tex.Civ. App., 88 S.W.2d 757, reversed on another point, 131 Tex. 598, 116 S.W.2d 686; Fort Worth Gas Co. v. Cooper, Tex.Civ.App., 241 S.W. 282 (er. dism.).” 295 S.W.2d 897.
* * ■* * * *
“The submission of the res ipsa liquitur issues to the jury similarly referred not to the origin or mere occurrence of the fire but to the exposure of gasoline fumes in the operation of equipment under the sole and exclusive control of the bus company.” 295 S. W.2d 897-898.

Smith’s last-stated contention as to control of the water heater flame is not well taken under the reasoning and holdings in Wichita City Lines v. Puckett, supra.

Under the rules recognized by the foregoing authorities, it appears that Smith’s point one is without merit. Smith’s employment of Otto Lee Koenning was of a general nature. Otto Lee Koenning was on duty 24 hours a day, 7 days a week for the purpose of making deliveries of LP gas to Smith’s customers. Smith entrusted the possession and care of the delivery truck to Otto Lee Koenning at all times, including the occasions upon which Otto Lee Koen-ning would attend to his own personal business. It is clear that Smith owed a duty to the public, as well as his customers to guard the dangerous instrumentality which he set in motion. He elected to perform this duty through his employee, Otto Lee Koenning. On the occasion in question Otto Lee Koenning was undoubtedly acting within the general scope of his employment when he drove the truck to his parent’s home in order to make a delivery of butane gas. When Otto Lee Koenning left the delivery truck to chase the horse, he, nevertheless, remained in legal possession and control of it, as did Smith through him. Smith’s duty to guard the truck was thus breached by Otto Lee Koenning. The conduct of Otto Lee Koenning in temporarily leaving the delivery truck is legally chargeable to Smith, even though it was motivated by Otto Lee Koenning’s desire to chase a horse. The possession, control, operation and maintenance of the delivery truck by Smith, through Otto Lee Koenning, could properly be found to have been negligently exercised. Appellees’ suit is not grounded upon any act of negligence by Otto Lee Koenning in chasing, catching or saddling the horse; instead, it is based upon negligence, circumstantially established through application of res ipsa loquitur, in the management of the dangerous instrumentality set in motion by Smith.

The evidence was legally sufficient to support the jury finding on Special Issue 19, that Smith, in person or by his employees, was in exclusive possession of the delivery truck and equipment at the time of and for a reasonable time prior to the fire, which was the essential inquiry. The evidence was also legally sufficient to support the jury finding on Special Issue 1 that at the time and place of the fire Otto Lee Koenning was acting within the scope of his employment for Smith.

Appellant’s point one is overruled.

Under his point two, Smith contends that there was no evidence to establish that he had superior knowledge of the cause of the fire, or that direct evidence to prove specific acts of negligence against him was shown to be wholly unavailable to Koenning, and that only Koenning would, of necessity, be aware of the cause of the fire.

Such contentions are both factually and legally not well taken. The evidence shows that Koenning was a farmer and rancher, and neither he, his wife nor his daughter had any training or experience in the propensities of LP Gas or the operation of a delivery truck carrying the same, except that they used it for heating purposes in their residence. On the other hand it was shown that Smith had long experience with such gasses and had passed a Railroad Commission examination in connection with the same. He was the owner of a business dealing in LP gas and was the responsible operator of the delivery truck. The fact that Otto Lee Koenning was the son of appellees Otto and Ida Koenning does not alter Smith’s legal liability. There are no allegations of collusion, fraud, or intentional injury in this case. Smith also held a patent on one portion of the equipment used on said truck. As we have held in connection with Smith’s point one, he was in exclusive possession and control of the delivery truck, through his employee, at the time it was driven on to Koenning’s premises to make a delivery of gas, and at the time of the fire appellees were not at home.

The evidence herein does not show that anyone knew as a fact exactly what caused the gas to escape. Otto Lee Koenning testified that he heard a noise, which he thought was the rupturing of a hose, and saw gas escaping. Hugh Keepers, Chief Inspector of the LP Gas Division of the Texas Railroad Commission, who made an investigation and report of the accident, testified that it was his impression or opinion that a hose had ruptured, permitting gas to escape, but he was not certain as to a particular hose.

In connection with his contention that there was no evidence to show superior knowledge on his part, Smith relies, in part, on the case of Carothers v. Olshan, 198 S.W.2d 941 (Tex.Civ.App., 1947, wr. ref. n. r. e.). In that case, in a non-jury trial, the trial court found that the defendant was not guilty of any negligence and plaintiff suffered no damages as a result thereof. The Court of Civil Appeals affirmed on the ground that the finding of no negligence was sufficiently supported by evidence. Texas Practice, McCormick & Ray, Evidence, Vol. 1, Sec. 108, pp. 147-148, mentions Carothers v. Olshan as one of a few Texas cases purporting to hold that the evidence to explain the occurrence must be more readily available to the defendant than to the plaintiff in order for the doctrine of res ipsa loquitur to be applicable. The cited text states that “It is believed, however, that these cases do not represent the prevailing Texas rule,” and makes reference to the excellent article “Res Ipsa Loquitur in Texas” 26 Tex.L. Rev. 257, 761, (1948) authored by S. T. Morris, discussing the application and effect of the doctrine. That article points out, at page 271, that “In at least three cases the court has refused to apply res ipsa loquitur upon the basis, inter alia, that explanatory evidence of the cause of the occurrence was freely available to the plaintiff,” citing, in footnote 67, the cases of Carothers v. Olshan, supra; Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Tex.Civ.App.1939, n. w. h.); and Southland Greyhound Lines, Inc. v. Frausto, 69 S.W.2d 497 (Tex.Civ.App.1934, wr. dism.); Cf. International Creosoting & Construction Co. v. Daniel, 114 S.W.2d 393 (Tex.Civ.App.1938, wr. dism.). The article then further states:

“ * * * However, in each of those cases it is extremely doubtful that the doctrine could have been applied in any event, since one or more of the first three elements was probably missing, thus failing to raise any acceptable inference of defendant’s negligence. In several cases the doctrine has been applied even though plaintiff has alleged and sought to prove specific acts of negligence thus apparently indicating the availability of evidence to him. It has been applied in cases in which it seems doubtful that explanatory evidence was available to the defendant.69 And in the numerous cases of fairly simple occurrence such as falling light fixtures, and the like, it is almost inconceivable that a diligent plaintiff’s attorney would not be able to procure all the explanatory evidence necessary to make out a case on direct evidence, if one can be made out, yet res ipsa is applied.”

Under footnote 69, above referred to, the following cases are cited: Tyreco Refining Co. v. Cook, 110 S.W.2d 219 (Tex.Civ.App., 1939, wr. dism.); Texas Utilities Co. v. Dear, 64 S.W.2d 807 (Tex.Civ.App., 1933, wr. dism.); Gulf C. & S. F. Ry. Co. v. Wood, 63 S.W. 164 (Tex.Civ.App., 1901, n. w. h.). Those cases and the leading Supreme Court cases on res ipsa loquitur stand for the proposition that there is no rigid requirement that evidence to explain the occurrence must be more readily accessible to the defendant than to the plaintiff. See 26 Tex.L.Rev. 775, footnote 130. As is stated in Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935), when the two basic requirements of res ipsa loquitur exist “The theory is that plaintiff is not in a position to show the particular circumstances which caused the equipment to operate to his injury, and that defendant possesses the superior knowledge or means of information as to the cause of the defect, if any; and should therefore be required to produce the evidence in explanation.” Res ipsa loquitur is circumstantial evidence and nothing more. When the two essential elements mentioned by our Supreme Court in Bond v. Otis Elevator Company, supra, are present, the matters of superior knowledge and explanation, or absence of it, by the defendant, may follow, but they are not independent elements which must be established in order to apply the doctrine of res ipsa loquitur.

The contentions made by Smith under his point two are closely related to those made under his point four. However, Smith’s position under the last-mentioned point, that the trial court held that there was no evidence to prove that there was a total absence of a reasonable explanation by him which would possibly rebut negligence on his part, is not borne out by the record. There is no such trial court holding. Smith came forward with evidence in the trial court in an effort to escape the inference of negligence which was created by the nature of the occurrence in question and by his exclusive possession, management and control of the dangerous instrumentality involved. He was entitled to do this, but we cannot hold that such evidence conclusively rebutted the inference of negligence which was properly established. The jury could have found the issue of negligence either way, and, if it had been found in favor of Smith, a recovery for Koenning would not be authorized. Since the jury found that Smith was negligent under the conditions stated, and that such negligence was a proximate cause of the fire in question, we must credit such findings, even though Smith attempted to explain his conduct as non-negligent. See Gulf C. & S. F. Ry. Co. v. Dunman, Tex.Com.App., 27 S.W.2d 116, 118.

It appears that this case was fully developed by both sides. The fact that Koenning alleged and attempted to prove specific acts or omissions of negligence on the part of Smith and failed to establish the same, under the cases herein cited, does not prevent recovery against Smith on properly supported findings under the doctrine of res ipsa loquitur. Wichita Falls Traction Co. v. Elliott, supra; 26 Tex.L. Rev. 767 (1948). Smith’s points two and four are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    COAL OPERATORS’ CASUALTY COMPANY, Appellant, v. R. J. HOLLOWAY, Appellee.
    No. 6792.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1965.
    Rehearing Denied Jan. 19, 1966.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    John H. Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law. Judgment was rendered for plaintiff >that he recover for 10 weeks total disability and 200 weeks partial disability based upon jury findings. The parties will be referred to here as the3r were in the trial court.

Defendant first complains of the action of the trial court in overruling its obj ection to certain hearsay testimony and permitting plaintiff to testify as follows on re-direct examination:

“Q. Did Dr. McGrath tell you your back? was in such shape you weren’t able to work?
A. Yes, sir.”

The evidence, as given, was clearly hearsay and was inadmissible. Traders & General Insurance Company v. Wheeler, Tex.Civ.App., 271 S.W.2d 679. However, after plaintiff rested, defendant put on its evidence and rested and the following transpired :

“By Mr. Seale: Your Honor, we have no further witnesses to call on behalf of the plaintiff, and in view of that, I do think it appropriate to request the Court to instruct the jury not to consider any testimony as to anything that Doctor McGrath might have told anyone since Doctor McGrath is not appearing here in person in the case.
“By the Court: Doctor McGrath is not appearing in the case ?
“By Mr. Seale: That is correct.
“By the Court: Then, ladies and gentlemen of the jury you are instructed to disregard any statements made by anyone during the progress of this trial as to what Dr. McGrath told them since that witness will not be testifying. Anything further, gentlemen?
“By Mr. Seale: Thank you, Your Honor, that’s all we have.”

Defendant argues the harm had already been done by reason of the trial court having overruled the objection at the outset and the jury having been permitted to consider such evidence during the trial, and that the prejudicial effect of such action could not be cured by the later instruction by the court. No authorities are cited which support this position. We assume that juries do pay attention to instructions by trial judges and that this jury did not consider the statement by plaintiff as to what Dr. McGrath told him. In any event, the improper statement did not go into detail as to the nature of the injury nor the extent of the disability and we cannot say the action of the trial court probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

Defendant next complains of the' action of the trial court in refusing to instruct the jury that it could consider certain testimony on the lump sum issue only. Plaintiff was permitted to testify that one of his nine children was deformed and that plaintiff’s wife had to stay with this child and could not go out of the home to get a job. It is argued that such testimony was calculated to arouse prejudice and inflame the minds of the jurors. The record in this case shows that defendant relied upon testimony revealing that plaintiff had worked a considerable part of the time since the date of his injury for the obvious purpose of showing that plaintiff’s injury was not as disabling as he claimed. Under these circumstances, it has been held to be proper for a claimant to show that he has been compelled to work in order to support his family, even though he was not physically able to do so. Muro v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 310 S.W.2d 420. The testimony admitted in this case did no more than show that plaintiff was compelled to work because of economic urgency and explained why his wife could not get out of the house in order to work and earn money. The point is overruled.

It is next contended that there was no evidence to support the finding of the jury that plaintiff’s duration of partial incapacity was 200 weeks, that there was insufficient evidence and that such finding was contrary to the weight and preponderance of the evidence. The same contentions are made as to the finding of the jury that plaintiff had an average weekly wage earning capacity during the period of partial incapacity of $33.19. In passing upon the “no evidence” points we consider only the evidence favorable to the finding of the jury.

The plaintiff gave the following testimony which was favorable to him: He had never had a lawsuit before and had never filed a compensation claim before. He was married and had nine children all living with him at Liberty. One of the children was deformed and bed-ridden. His wife had to stay with this child and could not get out of the house to earn money. This family had no source of income other than that which plaintiff could bring home. Plaintiff and another employee were loading stumps at the time plaintiff stepped back in a hole and hurt his back. The stump weighed around 150 to 200 pounds. The small of his back and legs hurt him when he stepped in the hole. He had never had trouble with his back or legs before, and had never injured them. They did not load that stump after plaintiff stepped in the hole, but drove the truck on back to the saw mill. Plaintiff returned to work the next day and worked an hour or so, but got a catch in his back and legs and got to where he couldn’t walk. The other employee helped him get out of the woods and back to the station and his employer took him to Dr. Biggs. He had never been to Dr. Biggs before. Dr. Biggs examined him and gave him some pills and a shot. Then his employer took him home. He went to see Dr. Biggs a second time after two weeks, and a third time after another two weeks. Plaintiff’s attorney sent him to see Dr. McGrath, and defendant sent him to see Dr. Stephenson. In December plaintiff tried to help Arson Strahan haul some logs for two weeks or better. His back was bothering him but he worked because he had to take care of his family. Later he hauled some logs for Kimble Scott for two weeks or better and his back was no better by then. His next work was for Mr. Allen who came out to his house and asked him to return to work. Plaintiff also testified as follows:

“Q. Now has your back gotten better then in the last few months, R. J-?
A. No, sir, not much better.
Q. Well, are you — do you, yourself, feel like that your back is in any better shape now than it was a year ago ?
A. No, sir.”
“Q. You don’t feel like it’s going to get any better?
A. No, sir.”
“Q. You feel like you are any more able to work now than you were six months ago?
A. No, sir.”

On cross-examination plaintiff testified: He had been picking some easy jobs since he got hurt. When he stepped in the hole his back and legs bothered him. By bothering him he meant they hurt him. His legs were getting numb from his hips down to his feet. The pain was where the main leaders were right down the back of his legs. The pain was in the lower part of his back, where his hips join on to his back. It hurt him all of the time, and still hurts him now.

There seems to be no fixed rule as to the amount of evidence required to establish the extent of disability. The rule seems to be that where it can reasonably be inferred from the evidence that the plaintiff’s disability resulting from his injury, leaves him able to procure and retain employment, but impairs his ability to perform the usual task of a workman to such an extent that he is able to engage only in employment which is less remunerative than that which he could have performed but for his injury, and has thereby suffered a depreciation or reduction of his earning capacity, then a verdict in his favor on the issue of partial incapacity will be affirmed. The evidence above set forth supports the findings of the jury that plaintiff has suffered partial incapacity for a period of 200 weeks and that his average weekly wage earning capacity during the period of partial incapacity was $33.19. The points are overruled.

In passing upon the sufficiency of the evidence and the great weight and preponderance of the evidence points in reference to the foregoing points of error, we consider the entire record.

Plaintiff did not call a doctor to testify as to his physical condition. The evidence shows that plaintiff’s employer, Allen Erwin, carried plaintiff to see Dr. Biggs in Leesville, Louisiana, the day after the accident. Neither party called Dr. Biggs. Plaintiff’s attorney sent plaintiff to see Dr. McGrath in Jasper, Texas; however, Dr. McGrath did not testify in this case. Defendant sent plaintiff to see Dr. G. Bruce Stephenson in Beaumont, Texas, and this was the only medical witness called to testify. Dr. Stephenson testified in effect that he found no disability, and in his opinion plaintiff was able to perform the work he had been doing.

The evidence shows that Allen Erwin, plaintiff’s employer at the time of this accident, October 2, 1963, went out to plaintiff’s house and asked plaintiff to come back to work. Erwin’s records showed the first pay period ended February 2, 1964, when plaintiff returned to work. Plaintiff continued to work for Erwin from that date until a week or two before the trial which began October 13, 1964. Plaintiff continued to earn about the same amount of wages after the accident as before. Several of plaintiff’s coworkers testified that they worked with plaintiff after the date of the accident and that plaintiff made no complaint of pain and gave no evidence of being disabled. However, all of the evidence did no more than raise issues for the jury to determine as to the extent of plaintiff’s disability. The findings of the jury are not so against the weight and preponderance of the evidence to be clearly wrong or manifestly unjust. The points are overruled.

Judgment affirmed.


author: PARKER, Justice.

text:
    I.F. OWENS, Appellant, v. Venna OWENS, Appellee.
    No. 6805.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1965.
    Robert F. Atkins, Cold Springs, for appellant.
    Coker & Coker, Conroe, for appellee.
   PARKER, Justice.

Appellee Mrs. Venna Owens sued I. F„ Owens, appellant, for divorce and division of property. A jury was waived. The District Court of Montgomery County granted the divorce, dividing the property by awarding appellee an undivided ½ interest in a 31.4 acre tract of land and all of the household furnishings on such property which the court found to be community property, with the other undivided ½ of such land and all other property being awarded to appellant, including farm implements and vehicles.

Appellant’s first point of error is:

“The trial court erred in holding that appellant and appellee were married when the evidence showed they were divorced in 1944, and there is no evidence to show a common law marriage, because there is no evidence of a present intent of the parties to be husband and wife.”

In considering this “no evidence” point, that part of the record most favorable to ap-pellee supporting the judgment of the trial court is controlling. I. F. Owens married Venna Owens in 1940. On May S, 1944, he divorced her, according to judgment of the district court of San Jacinto County, Texas. She was cited by publication. Immediately before and after May 5,1944,1. F. Owens and Venna Owens lived together as husband and wife in Corpus Christi, Texas, where he was stationed in the service. He told her about the divorce decree, at the same time assuring her it wasn’t worth the paper it was written on. They continued to live together as husband and wife the entire month of May, 1944. Nevertheless, on May 23, 1944, I.- F. Owens married Miss Hazel Inez Mann in Kleberg County, Texas. The legal officer at the base in Corpus Christi advised him to divorce Hazel Mann. Hazel Mann divorced appellant in the district court of Nueces County prior to the time appellant went overseas. Mrs. Venna Owens testified:

“Q. Do you know when he got the divorce ?
A. When he left for Corpus in the Navy.
Q. What year was that ?
A. That was ’44.
Q. That was the time that you separated for six or eight weeks?
A. That’s right.
Q. And after you went back together, you lived with him as husband and wife?
A. Sure did.
Q. Held yourself out to be his wife?
A. Yes, sir.
Q. Did he act towards you and hold out to others that he was your husband?
A. He sure did. He made me acquainted with people I didn’t know as his wife.”
“Q. When did you decide that you were married to him by a common law marriage ?
A. When I went back to him in ’44.”

Both conducted themselves as husband and wife. During the months of July and August, 1944,1. F. Owens was living in a fishing shack on the beach but phoning appellee from the base. In August, 1944, they again began to live together as husband and wife. Shortly thereafter he went overseas. When he returned from overseas duty in 1945 Venna Owens met him in Houston. Together they went to his father’s home in Point Blank where they lived together as husband and wife for two years. While living at his father’s house, the appellant testified.

“Q. Did you have intercourse with her?
A. Certainly.”

Then they opened up a store, largely on credit, and continued to live together as husband and wife until the final separation on June 26, 1963. From the time he returned from overseas until 1963 they conducted themselves as husband and wife. She ran the store; he made money as a commercial fisherman. Several individuals of that community testified they considered Venna Owens and I. F. Owens to he husband and wife. One such witness, Louis Walters, testified:

“Q. As far as you know, have they hold themselves out to be man and wife?
A. Yes, sir.”

Appellant named her as his wife on income tax returns. The elements of a common law marriage consist of: (1) an agreement presently to be husband and wife, (2) living together as husband and wife, and (3) holding each other out to the public as such. There is ample probative evidence establishing all elements of a common law marriage. Humphreys v. Humphreys, 364 S.W.2d 177 (S.Ct.1963); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682. Appellant’s point of error No.l is overruled.

Appellant’s second point of error is:

“The trial court erred in granting a divorce, if the parties were married, due to lack of grounds for a divorce.

Appellee Venna Owens testified that at 3:00 o’clock in the morning of June 26, 1963, she was having trouble with her arm and medical attention was needed. Appellant told her she was running him crazy, refused to spend any more money on her, piled her belongings on the porch and told her to leave and get in touch with her daughter to pick her up. That night such daughter did take her to a hospital in Conroe where an operation was performed upon her arm. After this occurrence, Mrs. Owens remained separated from appellant. Appellee’s ground for divorce was cruel treatment. The above facts as to what occurred and caused the separation satisfies and supports such plea of cruel treatment. Appellant’s second point of error is overruled.

Appellant’s third point of error is:

“The trial court erred in awarding appellee one-half of the land involved in this suit because it was purchased with separate funds of appellant.”

When appellant returned from overseas service he testified he deposited his overseas pay in the First State Bank in Livingston. He was not certain as to the amount. He deposited other money from fishing, from the store and other sources in the same bank and wrote many checks on this bank prior to the purchase of the 31.4 acre tract of land. In 1950 the 31.4 acre tract of land was purchased. Appellee testified that the money used to purchase the land in question was income she and appellant had from the store and from the fishing operation. Appellee in no manner traced the funds he claimed to be his separate property, and admitted he commingled such funds with community funds. It appears that considerable money in cash and credit was spent in opening up the store about 1947. Money was spent for farm implements and vehicles. Assuming that the common law marriage was consummated in 1945 and not in 1944, the presumption is that the land was community property. The uncorroborated evidence from Owens alone that the land was purchased with part of his overseas pay is not conclusive in this divorce action on the question of existence of community property. The court found that the land was accumulated during the course of their marriage as the community property of appellant and appellee. Evidence of probative force supports such finding of the trial court as incorporated in the judgment. Appellant’s point of error No. 3 is overruled. Parmeter v. Parmeter, 348 S.W.2d 51 (Tex.Civ.App.1961) and cases cited therein.

Judgment of the trial court affirmed.


author: SELLERS, Justice.

text:
    T. C. SANDS, Sr., et ux., Appellants, v. CITY OF DALLAS, Appellee.
    No. 175.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 2, 1965.
    Rehearing Denied Jan. 27, 1966.
    Ralph M. Hall, Rockwall, J. Alex Blake-ley, Dallas, for appellants.
    N. Alex Bickley, City Atty., Lee E. Holt, Asst. City Atty., Dallas, for appellee.
   SELLERS, Justice.

This is an appeal from an order overruling the Plea of Privilege of the appellants.

From the Brief of appellee we take the following statement of the case:

“On June 24, 1964, the City of Dallas filed with the Judge of the County Court of Dallas County at Law No. 2 a Statement in Condemnation describing 301.77 acres of land lying partly in Rockwall County and partly in Dallas County, Texas, to be acquired by the City of Dallas for the construction of the Forney Reservoir. The land was described in four tracts, but embraces a contiguous area forming, in effect, one body of land. This is shown in Plaintiff’s Exhibits 1 and 12 which are before the Court as original exhibits. The statement in Condemnation named as Defendants T. C. Sands, Sr., and wife; T. C. Sands, Jr., and wife; First Federal Savings and Loan Association of Dallas, lienholder; and Grand Avenue Bank and Trust Company of Dallas, lienholder. The interest of the latter Defendant is not material to this appeal and will not be noticed further herein. All of the named Defendants are residents of Dallas County, Texas. Defendant First Federal Savings and Loan Association of Dallas owns two notes and two deed of trust mortgage liens covering 290.196 acres of the subject land, which liens extend over the portions of the land lying in both Dallas and Rockwall Counties. These notes and deeds of trust were executed by Appel-land T. C. Sands, Sr., in 1961 when he owned all of the land in question. The said indebtedness is unsatisfied and remains an unpaid obligation of T. C. Sands, Sr. The condemnation proceedings will take all of the land in Rockwall and Dallas Counties covered by the mortgage liens. Defendant First Federal Savings and Loan Association filed an answer praying that the damages awarded for the lands described in the Plaintiff’s Statement in Condemnation be fixed at a value high enough to cover the notes and mortgages and that a sufficient portion of the award be set aside to First Federal for that purpose. On May 4, 1964, and prior to the filing of the condemnation proceeding, the Dallas City Council passed a resolution authorizing the representatives of the City of Dallas to make an official offer to T. C. Sands, Sr., and wife, for all of the lands in question. Two days later, May 6, 1964, T. C. Sands, Sr., executed two deeds which conveyed portions of the land in question to his son, T. C. Sands, Jr. (Plaintiff’s Exhibit Nos. 3 and 4, before this Court as original exhibits). The conveyances make no reference to the outstanding mortgage liens, and each contains the usual covenant of general warranty. Appellants contend that these conveyances divested T. C. Sands, Sr., of all of the subject land owned by him in Dallas County.
“The Commissioners’ Hearing was regularly held and attended by Appellant T. C. Sands, Sr., and his attorney, on July 27, 1964, and the Special Commissioners made a lump sum award to all of the named Defendants jointly for all of the named Defendants jointly for all of the land described in the Statement in Condemnation.
“Defendants T. C. Sands, Jr., and Wife, and First Federal Savings and Loan Association of Dallas duly filed their objections to the award, and Appellants T. C. Sands, Sr., and wife separately filed their objections to the award subject to a Plea of Privilege to be sued in Rockwall County, and a Plea to the Jurisdiction of the Court filed on the same date. Appellee duly filed a sworn Controverting Plea. This appeal is from the Judgment of the trial court overruling the Appellants’ Plea of Privilege.”

At the outset there are two contentions presented by this appeal. The first is that, since the lands of T. C. Sands, Sr., lie wholly in Rockwall County, the venue to' condemn the land is in the county court of Rockwall County, Texas, where the land lies. The second contention is that, since all of the defendants reside in Dallas County, Texas, where a part of the land sought to be condemned lies, and since the lien mortgage owned by the defendant, First Federal Savings and Loan Association of Dallas County covers all of the land lying in both counties, said mortgagee is a necessary party to the proceedings and venue is placed in Dallas County under Article 1995, Sec. 29a, Vernon’s Ann.Revised Civil Statutes of Texas.

We wish to take up the first question. T. C. Sands, Sr., at the time the mortgage involved here was given, owned all of the land sought to be condemned, lying both in Rockwall and Dallas Counties, and all of the land being out of the Harrison Blevins Survey. On May 6, 1964, T. C. Sands, Sr., conveyed to T. C. Sands, Jr., two tracts of land by two separate deeds, one deed calls for 4.2 acres more or less situated in Dallas and Rockwall Counties. The other deed calls for 9.29 acres lying in Dallas and Rockwall Counties. The question here presented, Did these two deeds convey to T. C. Sands, Jr., all of the land in the survey belonging to T. C. Sands, Sr., so as to leave T. C. Sands, Sr., owning lands wholly located in Rockwall County?

The City of Dallas, on the trial of the Plea of Privilege, offered an engineer who platted the field notes contained in the deed to the 9.29 acres of land; and as platted by the engineer, no part of the 9.29 acres is in Rockwall County and as platted leaves T. C. Sands, Sr., with a strip of land lying between Rockwall and Dallas County line, and the 9.29 acre strip, all of which is in Dallas County. The engineer who platted the 9.29 acre strip in his testimony admits that in his plat he had to disregard the call in the deed to the 9.29 acre tract, same being as follows:

“Thence South 1,272.7 feet running East of and parallel with the Dallas-Rockwall County line.”

For the reason that the call immediately preceding the above was for 900 feet only and such call did not reach the Dallas-Rockwall County line, and for this reason he ran the call set out above west of the Dallas-Rockwall County line, thus leaving a strip of land between the 9.29-acre strip and the Dallas County line belonging to T. C. Sands, Sr. The effect of this testimony was to leave T. C. Sands, Sr., owning land in both Dallas and Rockwall Counties.

To meet this evidence, the appellants introduced a correction deed executed by T. C. Sands, Sr., to T. C. Sands, Jr., on the 21st day of January, 1965. This conveyance provides as follows:

“That I, T. C. Sands, Sr., not joined herein by my wife for the reason that the property herein conveyed constitutes no part of our homestead, of the County of Dallas, State of Texas, for and in consideration of the sum of TEN ($10.00) DOLLARS and other valuable consideration to me in hand paid by the Grantee hereinafter named, the receipt of which is hereby acknowledged, transferred, sold and conveyed on the 6th day of May, 1964, and do hereby sell, transfer and convey the hereinafter described property situated in Dallas County, Texas to T. C. Sands, Jr., of Dallas County, Texas. This conveyance is made for the purpose of eliminating any uncertainty as to the intention of the parties hereto and to delineate with certainty that by this conveyance, as well as the conveyance of May 6, 1964, all of Grantor’s property contiguous to the Harrison Blevins Survey located and situated in Dallas County, Texas was intended by said conveyance of May 6, 1964 to be conveyed unto the said T. C. Sands, Jr., and said property is hereby conveyed unto the said T. C. Sands, Jr., effective the 6th day of May, 1964. If the description of said property so conveyed on the said 6th day of May, 1964, and as herein conveyed to the said T. C. Sands, Jr., does not encompass each and every tract and parcel of land contiguous to said Survey belonging to T. C. Sands, Sr., on the 6th day of May, 1964 and located and situated in Dallas County, Texas, said description is hereby amended to effectively convey unto Grantee all of Grantor’s property contiguous to said Survey West of the Dallas County-Rock-wall County line, all of said property situated in the County of Dallas, State of Texas, * *

In view of the evidence of the Dallas County engineer, we are of the opinion that T. C. Sands,.Sr., and T. C. Sands, Jr., both of whom are parties to this suit, agree in a Correction Deed that the true boundary of their property was the Dallas-Rock-wall County line and such deed reverts back to the deed of May 6, 1964. Polk v. Carey, Tex.Civ.App., 247 S.W. 568. This being true in the absence of someone claiming as an innocent purchaser, and we have none in this case. From the foregoing we find from the deeds of T. C. Sands, Sr., and T. C. Sands, Jr., that all of T. C. Sands, Sr.’s land lies in Rockwall County and did at the time appellee filed its suit in the County Court of Dallas County.

In view of the foregoing, we are of the opinion that Article 3264, Revised Civil Statutes of Texas, is a venue statute and controls the venue in this case by directing that suits to condemn land of an owner lying wholly in one county shall be brought in the county where the land lies. This statute was given this interpretation in the case of Duncan v. Denton County, Tex. Civ.App., 133 S.W.2d 197. The only difference is that the land through which the county sought to condemn a strip lay in both Dallas and Denton Counties and the owner lived in Dallas County on the same tract of land and he filed his Plea of Privilege to be sued in the county of his residence where a part of the land was located. A controverting Plea of Privilege was filed by Denton County in which it was made known that while the tract of land lay in both Dallas County and Denton County, the strip of land sought to be condemned lay wholly in Denton County. The court held this fact controlling.

The appellee contends that Article 1995, Sec. 29a, controls venue in this case. This view is based upon the fact that all the land in both counties sought to be condemned is covered by the same mortgage and the mortgagee is a necessary party to the condemnation proceedings; and since its residence is in Dallas County and it is a party to the suit, venue is properly laid in Dallas County.

With this contention we do not agree. Subdivision 30 of Article 1995 provides:

“Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 3264, Revised Civil Statutes, covering condemnation suits is clearly such a law and will control the venue in such cases rather than the provisions of Article 1995.

The appellee makes a further contention that the mortgagee is an owner of the land sought to be condemned or has such an interest that its presence in the suit will control the venue under the terms of the condemnation statute. We overruled this contention for the reason that the term owner of the land sought to be condemned did not include a mortgagee. Had the legislature so intended, it could have easily said so. The rights of a lienholder has been defined by the Commission of Appeals of this state as having no right to possession. Carroll v. Edmondson, Tex. Com.App., 41 S.W.2d 64. This holding was followed by the Waco Court of Civil Appeals in the case of Langston v. State of Texas, 315 S.W.2d 90. The appellee is seeking to condemn fee simple title to the land from its owner. The answer of the mortgagee shows it has only one interest in the proceedings and that is to have enough of the proceeds of the land to take care of its debt. The owners have a much greater interest in that they are interested in the land bringing its fair market value.

Our construction of this condemnation statute will control as to all necessary parties to the suit and this will certainly include the mortgagee.

The judgment of the court overruling the Plea of Privilege is reversed and the cause ordered transferred to the County Court of Rockwall County insofar as it relates to the land of T. C. Sands-, Sr.


author: COLLINGS, Justice.

text:
    Ethel BYRNE, Appellant, v. Richard Frank BYRNE, Appellee.
    No. 3997.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 5, 1965.
    DeWitt Wolfe, Houston, for appellant.
    M. Gabriel Nahas, Jr., and Bert E. Der-den, Houston, for appellee.
   COLLINGS, Justice.

Ethel Byrne brought this suit against Richard Frank Byrne seeking a divorce, custody of two children, one of whom is a minor child under the age of eighteen years and the other an unmarried child born March 17, 1943, alleged to be mentally unsound and to require custodial care. It was further alleged that said child cannot adequately take care of or provide for himself and has no personal estate or income sufficient to provide for his reasonable and necessary care. Plaintiff sought judgment requiring the defendant to pay $200.00 per month for permanent support of said children. Upon a trial before the court without a jury, judgment was entered granting the plaintiff a divorce, as prayed, granting plaintiff custody of the minor child, Kathleen Susan Byrne, and the defendant was ordered to contribute $100.00 per month for the support and maintenance of said minor child. There was no specific provision in the judgment concerning the requested support for the adult unmarried child who was alleged to be physically and mentally unsound and unable to care for himself. The court did make findings of fact and conclusions of law to the effect that Richard Frank Byrne, III, a boy born March 17, 1943 and unmarried, was not physically or mentally unsound so as to require custodial care and that said child could adequately take care of and provide for himself and, although without personal estate could earn sufficient income to provide for his reasonable and necessary care. Mrs. Ethel Byrne has appealed.

Appellee, Richard Frank Byrne, has filed a motion to dismiss the appeal. He urges that the judgment is not a final judgment within the meaning of Rule 301 of the Texas Rules of Civil Procedure because he contends it fails to dispose of the issue of fact raised by appellant Ethel Byrne in her original petition in which she sought support for the child Richard Frank Byrne, III. We cannot agree with appel-lee’s contention that this judgment is not final and appealable. In 4 C.J.S. Appeal and Error § 95 c, at page 276, it is stated as follows:

“A judgment or decree may be final and appealable as disposing of all the issues by reason of an implied adjudication; and it has been held that where two causes of action are stated in the pleadings and put in issue at the trial, and the judgment awards a recovery on one but is silent as to the other, such judgment is prima facie an adjudication that plaintiff was not entitled to recover on the other cause.”

In De Zavala v. Scanlan, (Tex.Com.App.), 65 S.W.2d 489, it was held that a judgment disposing of all parties and issues by necessary implication, though not expressly, is final. Although the judgment in the instant case is silent concerning a disposition of the issue presented by appellant’s claim of support for the alleged incompetent child, we are of the opinion that such issue was disposed of in the judgment by implication. The judgment specifically granted some of the relief sought by appellant and by ignoring it denied by implication her claim for support of the alleged incompetent child. Webb v. National Standard Fire Insurance Company, Tex. Civ.App., 179 S.W.2d 587; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161.

Appellant urges three points contending that the Court (1) erred in finding that. Richard Frank Byrne, III, is not physically or mentally unsound so as to require custodial care, (2) erred in finding that Richard Frank Byrne, III, can adequately take care of and provide for himself and although without personal estate can earn sufficient income to provide for his reasonable and necessary care, and (3) erred in holding that Richard Frank Byrne, III, is not such a child as contemplated by Article 4639a-l, Vernon’s Ann.Tex.Civ.St., for the purpose of enforcing support payments for him.

Article 4639a-l, V.A.T.C.S., provides as follows:

“In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, bom of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.”

Except for the above statutory provisions a parent ordinarily is under no legal obligation to provide support for his adult child. Texas Employers’ Insurance Association v. Birdwell, Tex.Civ.App., 39 S.W.2d, 159. The court found in effect that the adult son of the parties does not have a personal estate or income sufficient to provide for his reasonable and necessary care, and there is no contention to the contrary. The question for determination under appellant’s points is whether contrary to the finding of the court Richard Frank Byrne, III, is a child physically or mentally unsound requiring custodial care and a child who cannot adequately take care of and provide for himself as contemplated by Article 4639a-l.

The parties through their attorneys agreed that the written reports of two psychologists, one chosen by each of the parties, would be admitted by stipulation as expert testimony regarding the boy’s condition. The psychologist called by appellant testified in effect that in her opinion Richard Frank Byrne, III, is employable as long as he accepts positions requiring unskilled labor and that although such child is moderately mentally retarded there were no indications that emotional problems might be hampering his mental functioning. She stated that the boy’s intellectual level precludes job performance on any but the most undemanding and uncomplicated types and that even then pressure might serve to disorganize him. The psychologist for appel-lee testified that in his opinion Richard Frank Byrne, III, is mentally defective in the mild range but that he shows no severe or acute signs of mental or emotional illness; that his pattern of intellectual impairment strongly suggests the presence of some organic damage in the brain; that his intellectual level precludes job performance on any but the most undemanding and uncomplicated types, but that pressure might serve to disorganize him; that his intellectual level indicates educability, so that it is possible for him to be trained in some specific skill consistent with his ability. The psychologist further stated the opinion that whatever disturbance is noted is slight and in no way excessive for his life situation; concerning employment ability this psychologist recommended a referral to the vocational guidance service where placement or training or both can be considered.

The judgment by implication held and found that Richard Frank Byrne, III, is not a child so physically or mentally unsound as to require custodial care and is not a child which cannot adequately take care of and provide for himself as contemplated by Article 4639a-l, supra. The findings of fact and conclusions of law filed by the court are to the same effect. In our opinion such findings are amply supported by the evidence, and the conclusion of law is in accord with the statute. Both psychologists stated in effect that in their opinion Richard Frank Byrne, III, was employable as long as his work was limited to positions requiring unskilled labor, and limited to undemanding and uncomplicated types. The record does not conclusively establish that Richard Frank Byrne, III, is so physically or mentally unsound as to require custodial care, and that by reason of his mentally retarded condition he is incapable of providing for the necessities of life by obtaining employment. In this state of the record it is our opinion that the court did not err, or abuse its discretion, in refusing to require and enforce support payments provided for by the statute. Appellant’s points are overruled.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    Harold F. SMITH, Appellant, v. FIREMAN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee.
    No. 14663.
    Court of Civil Appeals of Texas. Houston.
    Jan. 13, 1966.
    Eastup & Kroll, Gordon J. Kroll, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, James B. Sales, Houston, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by appellant, Harold F. Smith, to recover compensation benefits from appellee as the result of an injury sustained by him when he fell from a scaffold while engaged in putting aluminum siding on a house in Huntsville, Texas. Appellant alleged that at the time of such injury he was working in the course of his employment for Texas American Builders, a subscriber to the Workmen’s Compensation Law of Texas. Appellee specifically pled that appellant was not an employee of Texas American Builders but was an employee of one Robert Dohone, an independent contractor. At the close of appellant’s evidence, the trial court granted the motion of appellee for an instructed verdict and entered judgment in its favor.

A careful reading of the statement of facts discloses that the substantial facts are undisputed. The evidence shows that Texas American Builders had a contract with the owners of a home in Huntsville for the remodeling thereof. At the time of appellant’s injury he was working on such job as an assistant of Dohone. Dohone had been engaged in the work of placing aluminum siding on buildings for a number of years. His work required skill and competency which he utilized in making judgment decisions in connection therewith. He had contracted jobs with Texas American Builders over a period of four or five years, during which time he had also contracted jobs with other builders, upon the same basis that he worked in the instant case. He furnished his own electric saws, hammers and all tools which he or his helper used in connection with putting aluminum siding on buildings.

Texas American Builders furnished only the materials which Dohone used on the job. Dohone was paid on a completed job basis, the contract price being predetermined by the number of squares of aluminum the building would require. He also received 10 cents per mile for use of his motor vehicle from Houston to Huntsville and return. Out of the amount which he was paid he would have to pay any helper assisting him on the job. There was no requirement by Texas American Builders that he have a helper, but it was generally understood that he would need one.

Dohone had no agreement with the Scar-boroughs, who owned the house in question, and he had no written contract with Texas American Builders. Texas American Builders paid Dohone by check. They did not withhold from the job price any sums for social security or income tax. In no instance were there any deductions from the agreed predetermined contract price. When he started on a job he was paid no more or less than the job price, no matter how long or short a period he took to complete the work. It was strictly up to Dohone to determine whether he would use a helper. If he did get a helper, he would agree with such helper on the amount he would pay him. Texas American Builders did not pay such helper, nor did it carry either Dohone or such helper on its payroll. Dohone had the right to hire and fire the helper whom he employed without consulting Texas American Builders.

The evidence shows that Dohone could decide when he would go to work and when he would quit, although sometimes representatives of Texas American Builders would tell him to go ahead and get the job done when some customer was pushing to have the work completed. Representatives of Texas American Builders appeared on the job several times for short periods, but the only thing they did was to check on the progress of the work, and see if the plans were being followed. Dohone testified that the only right said parties' had on the job was to tell him to follow the work orders, and that he himself decided all the details in connection with the work, and that Texas American Builders had no right except as to the results.

With respect to the employment of appellant Smith, Dohone testified that he went by and got Smith and picked him up and took him on the job, agreeing to pay him $2.00 per hour, as best he recalled. He also testified that the Texas American Builders had the right to discharge him and appellant and could pull him off of the job he was doing and send him to some other job, and had the right to direct the way he did his work. There is no evidence that they could discharge Dohone without subjecting themselves to damages. He further testified that appellant was working for him, and that he told appellant what to do, and how to do it; that he exercised such right, and that appellant would look to him for instructions if he needed any, and was obligated to follow the instructions which he gave; that he told appellant how to cut and apply the aluminum; that Mr. Sullivan and Mr. Cope, representatives of Texas American Builders, never assumed to exercise any control over appellant and never gave him any instructions, and never undertook to fire anybody that Dohone had employed; The only contact that appellant ever had with any representative of Texas American Builders was when Dohone introduced appellant to such representative on the job site.

We are of the opinion that Dohone was an independent contractor and that appellant was his employee and not the employee of Texas American Builders.

The facts in this case in large measure parallel the facts in Anchor Casualty Company v. Hartsfield, Tex.Sup.1965, 390 S.W. 2d 469. The work by Dohone required special skill and competency, he furnished his own tools, he was doing a particular job according to predetermined plans, he could come to work and leave at times within his discretion, he was paid by the job, he could employ a helper or not do so as he chose, he was not carried on the payroll or on social security and income tax withholding rolls of Texas American Builders. Such facts establish that Dohone was an independent contractor. Pitchfork Land and Cattle Company v. King, 1961, 162 Tex. 331, 346 S.W.2d 598; Industrial Indemnity Exchange v. Southard, 1942, 138 Tex. 531, 160 S.W.2d 905. Moreover, there is no evidence of the exercise by. Texas American Builders of control at any time over the details of Dohone’s work or the work of appellant. The only evidence of Texas American Builders’ right to control more than the end results rests in the testimony of Dohone that Texas American Builders had the right to take Dohone and appellant off the job and to tell appellant what to do and could override any judgment of Dohone or appellant. The undisputed evidence shows, however, that no such right was ever exercised, and that Texas American Builders never assumed any control whatever over the details of Dohone’s work or the work of appellant.

In Carter Publications, Inc. v. Davis, 68 S.W.2d 640, writ ref., the court recognized the highly important evidential element of actual exercise of control in establishing the employee relationship in cases where the terms of employment are indefinite. The testimony of Dohone that Texas American Builders could have overridden his judgment and could have taken him off the job constitutes no more than a scintilla of evidence of the requisite right of control, especially since no such right was ever exercised on the job in question, nor on any other job which Dohone had contracted with Texas American Builders, nor was such right ever exercised over appellant. We, therefore, hold that the court did not err in granting appellee’s motion for instructed verdict and in entering judgment for it.

Judgment affirmed.


author: BELL, Chief Justice.

text:
    Verna Mae FORTSON, a feme sole, Appellant, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY et al., Appellees.
    No. 14786.
    Court of Civil Appeals of Texas. Houston.
    Jan. 13, 1966.

      Gripp, Will & Collins, Eugene M. Mc-Elyea, Houston, for appellant.
    Joe J. Newman, Houston, for appellee, Katie Thomas.
   BELL, Chief Justice.

Appellant in her individual capacity originally filed suit against the insurance company and Katie Thomas, the surviving wife of deceased, Fred E. Thomas, to recover the proceeds of a life insurance policy. Thereafter, after answers filed by such defendants and a cross-action by Katie Thomas, appellant filed an amended pleading in which she sued as next friend for the two minor children of deceased. Thereafter, on September 23, 1965, the trial court removed appellant as next friend and appointed W. B. Baker, an attorney, to represent the minors. Appellant excepted to this order and gave notice of appeal. On October 26, 1965, a judgment was rendered which approved a settlement, the judgment awarding each minor $1,000.00. Katie Thomas, the beneficiary in the policy was given judgment for $10,500.00. W. B. Baker represented the minors. It does not appear that appellant or her counsel in any way participated in the proceeding resulting in the entry of the judgment. The next day, however, appellant gave notice of appeal and thereafter timely filed an appeal bond.

Appellees have filed a motion to dismiss the appeal because, among other reasons, appellant has no justiciable interest. She was, after she filed an amended petition, a party only in her capacity as next friend. She was removed as next friend by the court.

We sustain the motion to dismiss the appeal. Henderson et al. v. Shell Oil Company et al., 182 S.W.2d 994, (S.Ct.) ; Cannon v. Hemphill, 7 Tex. 184.

Appellees’ motion to tax appellant with 10% of the amount of the judgment for taking a frivolous appeal is refused.

All other motions are overruled. Appeal dismissed.


author: WILSON, Justice.

text:
    Roy W. KELLY et al., Appellants, v. A. & M. CONSOLIDATED INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 4466.
    Court of Civil Appeals of Texas. Waco.
    Jan. 13, 1966.
    Rehearing Denied Jan. 27, 1966.

      Mac L. Bennett, Jr., Normangee, for appellants.
    Baker, Botts, Shepherd & Coates, Frank G. Harmon, Houston, A. W. Davis, College Station, for appellees.
   WILSON, Justice.

Plaintiffs brought a class action against appellee school district seeking an injunction for themselves and taxpayers similarly situated restraining completion of the district tax rolls and the assessment, levy and collection of taxes based on tax values fixed by the board of equalization for the year 1965. They sought a writ of mandamus to require the assessor-collector of taxes “to place all taxable property” on the tax rolls. A take-nothing judgment was rendered on a jury verdict.

Plaintiffs say their points of error “simply mean it is appellants’ position that the uncontradicted evidence, as a matter of law, showed that an arbitrary, illegal and fundamentally defective and erroneous scheme and plan of taxation had been adopted by the appellee school district, and by reason thereof” the assessment of taxes thereunder was void. The position is that bank deposits, automobiles, household furnishings and other items of personalty were omitted from the tax rolls. They pleaded these and other items were “arbitrarily and capriciously” omitted under a “plan or scheme conceived and approved by the school district.” To an issue inquiring whether the omission was “deliberate and intentional”, the jury answered it was not. Plaintiffs say there was no evidence, or insufficient evidence to support this finding, and the court erred in overruling their motion for judgment non obstante veredicto.

The evidence is undisputed that the items of personalty concerning which complaint is made were generally omitted from the district tax rolls. Where the valuation fixed by the board of equalization is attacked on the ground of unlawful or arbitrary discrimination it is not sufficient to show “even that other property was omitted from the tax rolls altogether,” it is held, “except where the omission was the result of a deliberate and arbitrary plan or scheme to permit certain classes of property to escape their fair share of the tax burden.” State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 and case cited. In Whelan v. State, 155 Tex. 14, 22, 282 S.W. 2d 378, 381, reversal resulted from exclusion of evidence that the omission “was deliberate, arbitrary and systematic,” and the court emphasized that the taxpayer was entitled to relief where it was shown that there was a “deliberate and arbitrary preconceived plan.” In City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416, the “deliberate adoption of a plan for the omission from the tax rolls” was the criterion announced.

We are unable to hold that there is no evidence to support the jury finding. Appellants cite authorities holding that the omission is itself “evidence that an arbitrary scheme had been adopted.” This is not the question presented. The point is that there was no evidence.

The tax assessor-collector testified the property was not deliberately left off the rolls. No one had suggested it be omitted. There was evidence there had never been any discussion concerning leaving property off the roll. No school board member had requested any personalty not be assessed. The board president and the superintendent testified there was no plan or intention to omit any personalty. Testimony from members of the board of equalization negatived adoption of any plan or scheme to omit any property. We are also unable to hold, from this record, that the evidence is factually insufficient to support the finding, or that it is contrary to the overwhelming preponderance of the evidence.

The court did not abuse its discretion in refusing to order mandamus. At the time of trial the assessor-collector testified he was in the process of assessing “all automobiles we can locate” and putting all he could find on the tax roll; that he was going to prepare an unrendered roll on household furnishings and estimate their value on the roll; that some bank deposits, where information was obtained, were being placed on the roll, and the school district was “going to put on the rolls all the rest of the bank deposits that we can get the bankers or friends and neighbors out there to tell about, if they could be located.” It was shown that “about four or five hundred” automobiles had been listed on the rolls after the suit was instituted. Apparently no complaint of omission had been made previously. There was evidence that the tax rate would be adjusted to compensate for increase in total tax values if current budgetary needs could be met.

Appellants’ points are overruled. Affirmed.


text:
    Elinor HUGHES, Appellant, v. J. WEINGARTEN, INCORPORATED, Appellee.
    No. 6790.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1965.
    Rehearing Denied Jan. 19, 1966.
    Lynn Walker, Ernest L. Sample, Beaumont, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages for injuries received by plaintiff when she slipped and fell in defendant’s store. At the close of plaintiff’s evidence the jury was discharged and judgment instructed for defendant. The parties will he referred to here as they were in the trial court.

Plaintiff alleged in her petition that February 3, 1962, she slipped and fell on a watery and slippery substance while shopping as a customer in defendant’s store. It was alleged that defendant was negligent in placing the substance on the floor, having a defective display case which allowed water to leak or run on the floor, failing to repair or replace a defective display case and other acts of negligence.

In the evidence, plaintiff relies upon a cause of action based on defendant’s placing the foreign substance on the floor, as there is no evidence that on the occasion in question that defendant knew the substance was on the floor and negligently failed to remove it, or that the substance had been on the floor for such a period of time that it would have been discovered and removed by defendant exercising ordinary care. H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501.

The rules we are bound by in passing upon this appeal were set forth in White v. White, 141 Tex. 328, 172 S.W.2d 295:

“In determining whether it was proper to instruct a verdict in this case, we must view the evidence in the light most favorable to the petitioners, the losing parties. * * * We must indulge against the instruction every inference that may properly be drawn from the evidence. * * * And, if the record reflects any testimony of probative force in favor of the losing parties, we must hold the instruction improper.”

All of the evidence shows plaintiff slipped and fell in defendant’s store and received a severe injury.

Plaintiff testified as follows: She was shopping in defendant’s store and wanted to buy a jar of oysters. She came up to the fish counter and there was no attendant there. She rang the buzzer at the fish counter but there was no response. She left her basket in the aisle in front of the case and went behind the fish case and reached in the case from the back side and took out a glass jar of oysters. She returned to the aisle in front of the case and at a point about the middle of the fish case slipped and fell. The glass jar containing the oysters was broken and severely injured her hand. She did not see the water until after she had fallen. She saw the water after the fall. Her woolen slacks were saturated in the puddle of water which was not oyster juice. She saw the puddle of water as she was sitting in it. There was a large enough area to see other than just the place she was sitting. This was sufficient evidence to raise an issue for the jury that there was a foreign substance on the floor in which plaintiff slipped.

There is no direct testimony that defendant placed the water on the floor, but we have circumstantial evidence that this occurred. Plaintiff testified the pool of water in which she slipped was in front of the fish case and extended under and out from the fish case. Plaintiff offered in evidence pictures of the fish case showing that it appeared to be old, rusted and misshapen in parts. Anthony Lesota testified to the following: He was an employee for defendant at the time plaintiff was injured, although he was not on duty that day. The fish case was an old one. The front of the fish box was usually sweating most of the time. Drops of water would run down the front of the box and several times there would be a small amount of water. He observed employees of the defendant mopping up the moisture at the fish case frequently. The moisture was coming from the fish case. He went up to the fish case and felt it to see if it was sweating and to see where the water was coming from.

Arthur L. Capíes testified as follows: He had been in the refrigeration service business for 6 years and had IS years experience in such field. He examined the fish case in question during the summer of 1962. A refrigerated case will sweat where there is a temperature differential. This is avoided by insulation. If the insulation seal is broken the air will condense in the insulation and the insulation will become saturated with water. If the insulation becomes wet, condensation will form on the outside of the case. An examination of the pictures in evidence shows that the vapor seal on this fish box is broken.

Howard C. Bruening testified as follows: He is the manager of the store in question and had been since May 1, 1961. He understood the fish case in question was installed at the time the store was constructed. None of the parts nor attachments had been replaced since its purchase except a broken glass.

Tom Grenera testified to the following: He had worked for the store in question for approximately 6 years beginning in April 1956 and ending in August 1962. He left the store about 4:00 the afternoon of February 3rd, 1962, and was not in the store at the time plaintiff was injured. The fish case in question was a non-refrigerated case in which ice was used to refrigerate the fish. It was not refrigerated by electricity. The ice was placed in the case regularly in the morning, and the fish then placed on top. This case had been in the store since the time of his employment. He had observed a pool of water in front of this fish case several times. He had observed repairmen working on the case after water had been discovered on the floor in front of the case. He had observed the repairmen checking the case and checking the seals around the glass and the drain pan, and one time they ran water over the ice' to see if it leaked through the case. The sources of water near the fish case were the ice in the case and the basin behind the case. There were no sources of water near the front of the fish case.

Because of this evidence of probative force favoring plaintiff, it was error for the trial court to instruct a verdict.

Reversed and remanded.


text:
    Guy H. ELLIOTT et al., Appellants, v. Mrs. Loda Woods MANSFIELD, Appellee.
    No. 6795.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1965.
    Rehearing Denied Jan. 19, 1966.

      Thomas H. Lee, Houston, for appellants.
    W. G. Woods, Jr., R. E. Biggs, Liberty, for appellee.
   STEPHENSON, Justice.

Plaintiff brought this action in trespass to try title. Defendant filed a cross-action on the theory of a resulting trust. Trial was by jury and judgment rendered for defendant on her cross-action based upon the findings of the jury. The parties will be referred to here as they were in the trial court.

It was stipulated that Luther Fails and wife were the common source of title, and that defendant was the surviving wife of C. G. Mansfield and acquired whatever title he had at the time of his death to the land involved in this suit. A deed was offered in evidence from Luther Fails and wife conveying to plaintiff the land in controversy. It was defendant’s contention that C. G. Mansfield purchased the land but took the title in plaintiff’s name. Plaintiff contended the land was a gift to him from C. G. Mansfield, or in the alternative, that plaintiff’s parents furnished a part of the purchase price for such land.

The jury found that C. G. Mansfield did not intend to give plaintiff the land in question and that the full consideration for the land was paid by C. G. Mansfield or his first wife, Sarah Mansfield.

Plaintiff first contends the trial court erred in failing to render judgment for plaintiff because there was no evidence sustaining a trust relationship between plaintiff and C. G. Mansfield. We look to the evidence in the record favorable to the finding of the jury that C. G. Mansfield did not intend to give the land to the plaintiff, and favorable to the judgment of the court that defendant recover the title to the land in question.

Luther Fails testified: The trade for this land was made between C. G. Mansfield and himself and no one else. He carried his deeds to the land to C. G. Mansfield who had the deed prepared. He and his wife went to the Dayton State Bank and executed the deed and C. G. Mansfield gave him a check which was identified and received in evidence. The deed executed named plaintiff as grantee. The law is well settled that where a transfer of land is made to one person and the purchase price is paid by another person, a presumption of resulting trust in the payor arises, unless the payor manifests an intention not to retain a beneficial interest in the property.

There is a great deal of evidence in this case that the payor, C. G. Mansfield, intended to retain the beneficial interest in the property. The favorable evidence shows C. G. Mansfield went into possession of the property immediately and exercised dominion over the property from September 1950 until his death in 1959. C. G. Mansfield paid all taxes against this land each and every year during his lifetime except one year’s State and County taxes. C. G. Mansfield employed, directed and paid Chester Holbrook $1,660.66 for dozer work clearing undesirable trees and underbrush from the land in the Fall of 1952. He also employed and paid Sim Brown $1,295.00 for dozer work done in January and August of 1952 on this land. C. G. Mansfield employed, directed and paid W. T. Tiner to take down a fence between this tract of land and another tract of land owned by him, known as the Della Scott tract, and to fence this tract with creosote posts, wire and staples. C. G. Mansfield rented a house located on this tract to Luther Fails’ mother and received rent for more than a year after the land was purchased. No accounting was made for this rent money to either the plaintiff or his parents. The fact that plaintiff was nine years old and the nephew of Sarah Mansfield, who was C. G. Mansfield’s first wife, does not. establish as a matter of law that the conveyance in question was a gift. The point is overruled.

The plaintiff’s next point is that he should have judgment for an undivided interest in the land as a matter of law because his mother paid a portion of the purchase price. As already stated, the jury found adversely to this contention, and this is in effect a “no evidence” point. We have already quoted the evidence given by Luther Fails that C. G. Mansfield paid for the land with his check. The date of the transaction was September 29, 1950. Plaintiff offered in evidence a check dated September 25, 1950, executed by Mrs. William J. Elliot, plaintiff’s mother, payable to the order of C. G. Mansfield in the amount of $3,414.95. A notation on the check showed: “One-half interest in Della Scott place.” Plaintiff offered in evidence a second chfeck in the same amount dated March 2, 1952, executed by C. G. Mansfield payable to the order of Mildred Elliot, this being the same person as Mrs. William J. Elliot. The evidence also shows that C. G. Mansfield purchased the Della Scott tract July 21,. 1950. All of this evidence supported the findings of the jury and the judgment of the court. The point is overruled.

Judgment affirmed.