author: SAM D. JOHNSON, Justice.

text:
    Friedel REUTER et al., Appellants, v. CORDES-HENDREKS COIFFURES, INC., et al., Appellees.
    No. 32.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 8, 1967.

      Aaron Goldfarb and Sidney Wright, Houston, for appellants.
    William E. Wright, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.
   SAM D. JOHNSON, Justice.

This is a declaratory judgment action. It was brought in the trial court by appellants for an adjudication that a written compromise settlement agreement containing covenants against competition was null and void as a matter of law, or, in the alternative, that the restrictions as to time and place are unreasonable and should be modified. The case was tried to a jury which answered all special issues in favor of the appellees, defendants below, and judgment was rendered on the verdict of the jury that all relief sought by appellants be denied.

Initially, appellees were the owners and operators of a beauty salon that was later expanded to two incorporated businesses of the same nature. At different times, each of the three plaintiffs were employed as hairstylists and two of them, at the time of their employment, executed a written contract with their employer providing negative covenants against competition. During employment, and for a period of three years following termination, they were to be prohibited from engaging in the practice of hairdressing or cosmetology in Houston or Harris County or within fifty miles from any beauty salon operated by the employers. The third plaintiff did not execute an employment contract. On different subsequent dates each of the plaintiffs terminated their employment and thereafter began practicing cosmetology within the restricted time and area.

As a result of this action on the part of the former employees, a previous suit was filed by appellees here against two of the appellants in this action for damages and to enjoin such practice. That suit was terminated by the compromise settlement agreement which provided that they, the former employees and appellants here, for a period of ten years, were not to engage in the practice of hairdressing or cosmetology within a portion of Harris County and two additional designated cities. In turn, and for the same period, the employers, and appellees here, were not to practice in the remaining portion of Harris County or in another additional designated city. By a letter agreement, the third plaintiff and appellant here, made himself a party to the compromise settlement agreement. The judgment of the court in that former action recited that all matters in controversy had been settled and that the plaintiffs were to take nothing.

It is the compromise settlement agreement that is here in issue. The trial court was requested, under the Declaratory Judgment Act of this State, Art. 2524 — 1, Vernon’s Ann.Civ.St, to declare the compromise settlement agreement to be violative of the Anti-Trust laws of this State, Articles 7426-7438, V.A.C.S., and to be null and void as a matter of law. In the alternative, the trial court was requested to order equitable reformation of the restrictive covenants that the compromise settlement agreement contained.

The jury verdict found that the restrictive covenants against competition that were contained in the compromise settlement agreement were reasonable and necessary and that the appellees here had relied on the provisions of the compromise settlement agreement to their detriment. The judgment of the trial court denied all declaratory and equitable relief sought by the appellants, recited that all matters of fact and law were found in favor of appel-lees and further recited that appellants were without “clean hands.” Appellants made no motion for new trial and their motion for judgment notwithstanding the verdict of the jury was overruled in the judgment.

Appellants urge two points of error: that the trial court erred in denying their motion for judgment notwithstanding the verdict of the jury because the compromise settlement agreement is invalid as a matter of law, and secondly, that the court erred in denying their motion for judgment notwithstanding the verdict of the jury because the reasonableness of the restrictions as to time and area contained in the compromise settlement agreement were not issues of fact to be determined by the jury but were questions of law to be determined by the court and that the evidence showed that the restrictions were unreasonable and excessive.

This -opinion will be based on appellee’s first counterpoint making it unnecessary to consider the remaining matters that are urged by appellees. It is that the trial court did not abuse its discretion in denying appellants’ declaratory relief since appellants’ proof failed to establish a justiciable controversy within the requirements of the Texas Declaratory Judgment Act.

It is basic that “a justiciable, actual, real and bona fide controversy” is essential to the maintenance of a declaratory judgment action. Harris County Tax Assessor-Collector v. Reed, Tex.Civ.App., 210 S.W.2d 852, no writ history. “Expediency and a desire not to function in the abstract, but to decide only concrete contested issues conclusively affecting adversary parties in interest, have induced a refusal to render advisory opinions or decide moot cases. Actions or opinions are denominated ‘advisory’ * * * where the judgment sought would not constitute specific relief to a litigant or affect legal relations * * *. The distinguishing characteristic of such issue is that they involve no actual, genuine, live controversy, the decision of which can definitely affect existing legal relations.” Borchard Declaratory Judgments, 2d Ed. pp. 34, 35.

In the case at bar, one of the appellants testified that’ the terms of the compromise settlement agreement were “unreasonable” and that he had not “wanted” the ten year restriction when- he signed the settlement agreement. He further testified that he had taken no action toward negotiation for lease space in the prohibited area and that “we have never done anything” about it. He was asked specifically, “and at this time you have no basic intention of opening a shop up within the area of restriction in the compromise agreement?” His answer, “No, sir.” The record makes apparent that the plaintiffs were “not pleased,” were “not happy” and did not “like” the agreement they had previously made. It is equally apparent that they deemed the terms of the agreement “unreasonable.” Nowhere, however, does the record reflect a present or prospective intention on the part of the appellants to engage in the practice of cosmetology in the prohibited area. The record does not indicate the imminence of litigation between the parties unless the contractual uncertainties were judicially declared. “A. mere difference of opinion, not involving the assertion of adverse interests, is not sufficient to support an action for declaratory judgment.” 26 C.J.S. Declaratory Judgments, § 29, p. 106.

In Spradley v. Whitehall, Tex.Civ.App., 314 S.W.2d 615, n. w. h., the court affirmed the action of the trial court in refusing to declare the validity of restrictive covenants upon finding that the owners of the residential lots in question were “not threatening to violate any covenants of restriction relating thereto.” In effect, the appellate court approved the action of the trial court in refusing declaratory relief for the reason that no justiciable controversy existed in the absence of any real threat or intention of a violation of the restrictions.

In California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, plaintiffs California Products, sought a declaratory judgment to determine whether or not the design of a bottle in which they proposed to market citrus juice would violate the terms of an existing injunction prohibiting them from márketing with containers similar in shape and design with the defendants, Puretex. The action for declaratory judgment was tried to a jury which found that the proposed bottle was not so similar in shape and design as to deceive the buying public. The court’s judgment gave the prayed for Declaratory Judgment to California Products exculpating them from the prohibition of the prior judgment with respect to the proposed marketing. Here there was the aspect of legal apprehension which the declaration sought to settle, and an effort on the part of the plaintiff to determine his legal obligations before hazarding violation of the injunction. Nonetheless, the Supreme Court found the proof of a justiciable controversy insufficient to sustain affirmative declaratory relief observing that the plaintiff was fishing for legal advice in “judicial ponds.”

We are of the opinion that the plaintiffs’ proof in this record presents no “actual, genuine, live, controversy.” A declaratory judgment in this instance would be in the nature of an advisory opinion that might or might not affect the future relations of the parties, that might or might not afford “specific relief,” that might or might not affect the “legal relations” of the parties. Whether or not it did so, in each instance, would have to be later determined by what, if any, subsequent action the parties took. “The court will not declare rights on facts which have not arisen or adjudicate matters which are contingent, uncertain, or rest in the future. A future right or interest which is dependent on a contingency or event which may never happen is not the proper subject of a declaratory judgment.” 26 C.J.S. Declaratory Judgments, § 28, p. 104.

The record that is presently before this Court does not portray a justiciable controversy that is essential to jurisdiction.

The absence of a justiciable controversy to confer jurisdiction is presented for the first time to this court; however, it does not appear that it was presented or urged before the trial court. The burden of establishing jurisdiction, of proving a justiciable controversy, clearly falls on the moving party, appellants here. “Ordinarily one who first requests the intervention of a court in his behalf — who asserts a right or a duty and demands a remedy' — is properly required to carry the burden of proving his right to the remedy * * *. When, by statute, a litigant is allowed to initiate judicial action merely to determine his legal relationships, the logic of the above situation is unchanged.” Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 350. In Burkhart v. Horn, Tex.Civ.App., 369 S.W.d 680, no writ history, the plaintiff brought an action for declaratory judgment establishing his right under an oil and gas lease but failed to offer proof of the commencement of drilling operations necessary to perpetuate his lease. Under this failure of proof, the court held that the plaintiff had not established a justiciable controversy with appellees as to the leasehold estate asserted by him. In order to do this, the burden was upon him to show that the lease had not terminated by its own provisions.

In Orange Independent School Dist. v. West Orange Independent School Dist., Tex.Civ.App, 390 S.W.2d 81 (writ ref, n. r. e.), there was a controversy between the two school districts, between proponents of consolidating the districts and the West Orange district who wishes to maintain its corporate identity. The Orange district sought a declaratory judgment concerning the legality of the procedures contemplated in the proposed consolidation and the West Orange district counter-claimed seeking a declaration adverse to that sought by plaintiff. The plaintiffs had declared their intention to petition for an election to abolish the Orange district for the purpose of reorganization into one common school district. The case was tried to a jury, a jury verdict returned and a judgment secured thereon. The Beaumont Court, however, reversed the judgment of the trial court and dismissed the action and succinctly stated, “There is not justiciable controversy in this cause, for which reason the trial court lacked jurisdiction. Since the trial court lacks jurisdiction, this court lacks jurisdiction. Constitution of the State of Texas, Art. 5, Section 6, Vernon’s Ann.St.; Art. 1819 and Art. 1822, R.C.S.T. Advisory power is not given to this court by the Legislature. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). This court is not considering any phase of this lawsuit except jurisdiction.”

“It is elementary law that courts have no jurisdiction to render declaratory a judgment in the absence of a justiciable or actual controversy — in other words the existence and presentation to the court of an actionable or justiciable controversy is essential to the exercise of jurisdiction by the court appealed to.” Anderson, Actions for Declaratory Judgments, Vol. 1, Sec. 16, pp. 65-67.

Proof of a justiciable controversy is an essential element of jurisdiction. In the absence of its proof the trial court lacked jurisdiction and, as the Beaumont Court recites, so does the appellant court.

For the reasons stated, the cause is dismissed for want of jurisdiction.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Carl V. GUNTER et al., Appellants, v. Walter HASTY et al., Appellees.
    No. 4654.
    Court of Civil Appeals of Texas. Waco.
    Nov. 30, 1967.
    Rehearing Denied Dec. 21, 1967.
    Huffaker & Green, Tahoka, for appellants.
    Richey, Sheehy, Teeling & Cureton, Waco, for appellees.
   OPINION

TIREY, Justice.

Carl V. Gunter and wife, plaintiffs below, have perfected their appeal from a summary judgment against them in favor of Walter Hasty, defendant.

Appellants’ point 1 is that the court erred in granting the motion for summary judgment on the ground that plaintiffs’ suit was barred by the 2-year statute of limitation as a matter of law. We overrule this point and affirm the judgment of the trial court.

We believe the controlling facts here are without dispute. Plaintiffs filed their original petition on the 5th day of February 1965 against Walter Hasty and Louise Hasty, in which they alleged that defendants resided in Gatesville, Coryell County, Texas. In this pleading they alleged that on or about the 5th day of December 1963 they were traveling in their Ford automobile on Highway 84 within the city limits of McGregor, Texas, and were going in a northeasterly direction; that while so doing a car in front of them stopped, making it necessary for the plaintiffs to come to a complete stop; that while they were so stopped Walter Hasty, who was driving a 1963 Chevrolet (owned by the defendant Louise Hasty) behind plaintiffs’ car and going approximately in the same direction, came upon it at a fast rate of speed behind them and struck the plaintiffs’ car in the rear and knocked it about 55 feet, causing the injuries and damages, and set them out. They alleged negligence against defendants in four particulars and alleged that each was a proximate cause of the collision and resulting injuries to them.

The original petition alleged in three different places that they were suing Walter Hasty who was driving the car at the time of the collision. Mr. and Mrs. Hasty were both served with citation in Coryell County on the 6th day of February 1965, and they filed their original answer on the 17th day of February 1965. In this original answer they plead a general denial and further plead that neither of them was guilty of any act of negligence at the time of the accident, but alleged that plaintiffs’ driver was guilty at the time and on the occasion in question in that he suddenly and without warning stopped his automobile in the middle of the highway without giving any warning or signaling of his intention to do so, and that such negligence was the cause of the accident. They further plead that just prior to the accident a car which was traveling in front of plaintiffs’ automobile suddenly, and without warning or signaling of his intention to do so, made a left turn on the highway, causing plaintiffs’ driver to stop his vehicle without any warning and that the act of such third person in turning his car to the left constituted negligence and proximate cause and is a new and intervening cause of the accident.

Thereafter, on the 14th day of May 1965 the deposition of Walter Hasty (the appel-lee here) was taken in Dallas County, and in this deposition Walter Hasty testified to the effect that he resided at 4610 Newmoore Street, Dallas, Texas, and that the name of his father was W. L. Hasty. In this deposition appellants’ attorney proved by the witness that at the time of the accident he was living in Dallas County, Texas, and that he had not lived in Coryell County for approximately 3 years; that the witness was the driver of the car at the time of the accident and his father, W. L. Hasty, was sitting on the front seat with him; that at that time he had a driver’s license and at counsel’s request he produced the driver’s license which he said he had at the time and gave the number and showed it was issued to Walter Ray Hasty, 4610 Newmoore Street, Dallas, Texas, and the license bore the signature of Walter Ray Hasty and he testified it was the same driver’s license he had at the time of the accident. The above deposition was taken on May 14, 1965, which was one year, 5 months and 9 days after the accident. Thereafter appellants filed their first amended petition on February 10, 1966 in which pleading they alleged that Walter Hasty was a resident of Dallas County, Texas, and that process had already been had upon him. This pleading was filed 2 years, 2 months and 5 days after the date of the accident. So, at the time plaintiffs filed their amended petition 2 years, 2 months and 5 days had elapsed since the date of the accident. It is true that plaintiffs, in the taking of the deposition, did not elicit from Walter Hasty, the defendant here, as to whether or not he had been served with citation in this cause, but so far as we can see, Walter Hasty, in his deposition, said nothing that would mislead appellants nor lead them to infer that he had been served; but, on the contrary, he testified that his father, W. L. Hasty, lived in Coryell County, Texas, and that he, the witness, was not living in Coryell County at the time the deposition was taken, and that he had not lived there for some three years. So, appellants’ attorney had the information as to the exact status of the residence of the driver of the car at the time of the accident, and that the driver of the car was not at that time a resident of Coryell County, Texas. It is true that plaintiffs, after the filing of their first amended petition on February 10, 1966, made an attempt to obtain a setting of this cause, but they made no effort to have Walter Hasty served with citation until the attorneys for appellees advised the attorneys for plaintiffs that their cause of action against Walter Hasty, the driver of the car, was barred by limitation because he had not been served with citation. Thereafter, appellants, on June 2, 1966, filed their first supplemental petition in which they asked that citation issue to Walter Hasty, a resident of Dallas County, and requested that such citation have attached to it a copy of their original petition, as well as their first amended petition. After service of citation on Walter Hasty of Dallas County, he filed his original answer in which he specifically plead the 2-year statute of limitation in bar of plaintiffs’ cause of action against him.

Under the foregoing undisputed factual circumstances, does the evidence before the court show, as a matter of law, that plaintiffs failed to commence and prosecute their claim against Walter Hasty of Dallas County within the two years after its accrual? We think the answer is “Yes.” It is true that the record shows that when appellants filed their original petition that they intended to prosecute this suit with effect. They caused citation to be duly issued and served on W. L. Hasty, and Mrs. Hasty in Coryell County, and they alleged that the driver of the car was a resident of Coryell County. It is obvious that this was a mistake and appellants’ attorneys found out on May 5, 1965, that the defendant did not live in Coryell County and was not a resident of Coryell County, and had not been for some three years at the time of the accident, and that his residence was Dallas County, Texas. Notwithstanding they had this information'1 year, 5 months and 9 days after the accident, they made no attempt to have him served with citation until they filed their first supplemental petition on June 6, 1966, which was 2 years, 2 months and 5 days after the accident. We believe under the foregoing undisputed circumstances that plaintiffs’ alleged cause of action against Walter Hasty of Dallas County, Texas, is barred by limitation as a matter of law. Much has been written on the application of Article 5526, Vernon’s Ann.Tex.St., which is designated as the 2-year statute of limitation, but we have found no factual situation that is quite analogous to the one here before us.

The judgment of the trial court is affirmed.


text:
    T. E. RICHARDS, Jr., Appellant, v. Robert L. MOODY, Appellee.
    No. 26.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 22, 1967.
    Rehearing Denied Dec. 20, 1967.

      Robert C. Focke, Jr., and T. E. Richards, Jr., Houston, for appellant.
    Charles B. Smith, Irwin M. Herz, Jr., Phipps, Smith & Alexander, Galveston, for appellee.
   SAM D. JOHNSON, Justice.

This action was brought pursuant to Article 5073 of the Vernon’s Ann.Revised Civil Statutes of the State of Texas to recover double the amount of alleged usurious interest. The case was initiated by T. E. Richards, an attorney, who was assigned this cause of action by Vern C. Hansen. The defendant is Robert L. Moody.

The action arose out of the purchase by Robert L. Moody of a $50,000.00 promissory note of the Ver-Nan Corporation which was secured by a secondary lien and deed of trust on an apartment project owned by such corporation. The Ver-Nan Corporation was wholly owned by Vern C. Hansen and his wife, and had been in existence approximately three months prior to the transaction in question. Hansen, his wife, and an attorney were the only three officers of the corporation.

The Ver-Nan Corporation’s $50,000.00 promissory note was made payable to Vern C. Hansen and the corporate resolution authorizing it recited that it was to “ * * * borrow from the said V. C. Hansen various sums of money * * * for the purpose of paying various debts owing by the Company including a debt to the said V. C. Hansen * * *The Ver-Nan Corporation note and deed of trust were issued to Hansen on July 11, 1960. Ten days later, on July 21, 1960, Hansen assigned to Moody, with recourse on Hansen, the note and deed of trust for $32,500.00. The $50,-000.00 Ver-Nan Corporation promissory note was thus acquired by Moody by assignment and from Hansen, for the sum of $32,500.00, which sum was paid to Hansen by Moody.

Approximately seven and one-half months after its execution, still another party, LuLu Jackson, acquired this note by sale and assignment from Moody for the sum of $51,589.20, which sum was paid to Moody by LuLu Jackson. Some two months after this occurred, the deed of trust lien securing the note was foreclosed by virtue of the failure of the Ver-Nan Corporation to make payment on the note and the property was foreclosed upon by trustees’ sale.

Appellant’s basic contention is that the entire transaction involved here was, as a matter of law, a scheme or device whereby Vern C. Hansen was loaned money by Robert L. Moody at a usurious rate of interest. In support thereof, appellant alleges that the wholly owned Ver-Nan Corporation was used as a subterfuge to issue the note in question to Hansen without consideration, so that he, Hansen, after thus acquiring the note, could transfer it to Moody at a discount, thus accomplishing indirectly what is prohibited by Article 5073, that is, a loan of money at a usurious rate of interest. It is clear that “If there is an intention to charge usury, no matter how the transaction may be veiled or disguised, the courts will look through the form to the substance of the transaction and condemn the contract as usurious.” 58 Tex.Jur.2d, Usury, Sec. 9. The basic question in this instance is whether or not there was a multiple-cornered transaction, the intention of which was to exact usury.

Appellant places reliance on these factors: that Moody had previously made a loan to Hansen, that Moody was familiar with the laws of usury in this state, that in the present instance there had been a discussion of the possibility of a direct loan, and that the direct loan request was refused by Moody because it might be considered as usurious. Further, that at the insistence of Moody, there was a pre-payment privilege in instance note that would insure a capital gain tax consequence to Moody, that Moody insisted that the transfer of the note from Hansen to him be with full recourse on Hansen, and that Moody required, that the corporate resolution of the Ver-Nan Corporation contain Moody’s capital gain requirement. Additionally, it is contended that Moody knew of Hansen’s poor financial condition, that the entire transaction had been thoroughly considered and prepared by Moody, and that the entire transaction was nothing more than a scheme or device to exact a usurious rate of interest which was paid by Hansen.

The trial was to a jury which made numerous findings, all in favor of appellee, Moody. These were that there was no scheme or device to permit Robert L. Moody to collect a greater rate of interest than 10% per year, that the payment of $51,589.20 to Moody was not made on behalf of Hansen, that the payment to Moody was paid by LuLu E. Jackson, and that the note executed by the Ver-Nan Corporation was never paid by Hansen. Based on the verdict of the jury, the trial court entered judgment for the appellee, Robert L. Moody.

A loan contract does not become usurious by virtue of a third person’s purchase of the note at a discount unless there is such a collusive agreement whereby a fictitious and inflated note is given to one party in order that the purchaser or assignee may make a usurious loan. Huff v. Citizens’ Sav. Bank & Trust Co. of St. Johnsbury, Vt., Tex.Civ.App., 81 S.W.2d 1043. On its face, the contract here is not for unlawful interest. In such instance it is the plaintiff’s obligation to establish that there was a corrupt agreement or scheme to cover usury and that such agreement or scheme was in full contemplation of the parties. Slaughter Co. v. Eller, Tex.Civ.App., 196 S.W. 704, err. ref. In the case at bar, the record will not support the conclusion that there was a corrupt agreement or scheme that was, in fact, in contemplation of the parties. We believe that the record supports the finding of the jury that there was no scheme or device to permit Robert L. Moody to collect a greater rate of interest than 10% per year.

In any event, Article 5073, V.A.C.S., clearly provides that a suit to recover the penalty may be maintained only by the party paying the usurious interest or his legal representative. In Burch v. First Guaranty State Bank of Quanah, Tex.Civ.App., 207 S.W. 552, no writ history, it is stated that “it will be noted that the statute provides that the suit to recover the penalty may be maintained only by the party paying the usurious interest or his legal representatives. It has been held in this state that even sureties do not occupy such a position as entitles them to recover the penalty * * *. When Miss Word purchased the land of appellant and assumed payment of the eight notes, she became the principal debtor, and appellant was thereafter a surety. The law seems to be well settled in this state, as prescribed by the statute, that only the party paying the usurious interest, or his legal representatives, may sue for the penalty.”

Here, neither Hansen nor his as-signee paid anything on the note in question. Two months after the note was sold and assigned by Moody to LuLu Jackson, the deed of trust lien securing the same was foreclosed because of the failure of the Ver-Nan Corporation to pay its debt. Can it be said that there was payment on the note when the deed of trust lien securing it was foreclosed? We believe not. Can it be said that LuLu Jackson’s payment to Moody was made on behalf of Hansen? We believe not. If her payment can be said to have been made on behalf of anyone it could only be on behalf of the Ver-Nan Corporation. This record will only support the conclusion that this note was never paid by the maker, Ver-Nan Corporation, by the payee surety Hansen, or the assignee, Richards.

Here the jury found that the payment by LuLu Jackson to Moody was not made on behalf of Hansen. The record reveals no evidence to the contrary. We do not believe that it can be said that this action is then brought by “the person paying the same or his legal representative.”

The judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE CO., Appellant, v. E. B. HOPKINS, Appellee.
    No. 6853.
    Court of Civil Appeals of Texas.
    Dec. 7, 1967.
    Rehearing Denied Jan. 3, 1968.

      Howell, Cobb, Orgain, Bell & Tucker, Beaumont, for appellant.
    John Seale, Jasper, for appellee.
   HIGHTOWER, Chief Justice.

This is a workmen’s compensation case in which plaintiff, E. B. Hopkins, recovered benefits for total and permanent incapacity in trial before a jury. The primary question before us is whether or not plaintiff’s injury was sustained in the course and scope of his employment.

Plaintiff was an employee of Kirby Lumber Corporation. During working hours, about 9:15 on the morning of Wednesday, August 5, 1964, plaintiff proceeded to get a drink of water from a drinking fountain maintained by Kirby Lumber Corporation, when he was struck and beaten by his fellow employee, George Nelson.

In answer to Special Issues Nos. 2 and 3 respectively, the jury found that plaintiff received an accidental injury and that it was sustained in the course and scope of his employment.

Defendant’s theory of the case, which he argues by various points of error, is that the facts, as presented by plaintiff, reveal that there is no evidence that plaintiff’s injury was accidental, that it was sustained while he was engaged in his employer’s business or that it was of such kind or character as had to do with and originated in his employer’s work or business.

Plaintiff testified that as he approached the drinking fountain, he saw George Nelson standing about 4 feet from it with his back toward plaintiff, eating a sandwich. Plaintiff went between Nelson and the fountain, obtained his water, and, as he turned around, Nelson struck him, knocking him down. He then proceeded to beat him on the ground with a piece of lumber. Plaintiff testified that the only words uttered at that time were “he [Nelson] said he would teach me a lesson about stepping around in front of me, I heard him say that.” He further testified, essentially, that prior to that occasion, he and Nelson had always been on friendly terms, never having had a cross word between them. Under repeated examination, he could give no other explanation of why Nelson had struck him.

We recognize that the mere fact that an employee is injured by another employee while at work for his employer does not in and of itself make the injury com-pensable. A reading of Article 8309, Sec. 1, Vernon’s Ann.Civ.St. makes this apparent. The foregoing testimony of plaintiff provided the jury with ample evidence to believe that this was not the case. It seems clear that the dispute arose out of something, getting a drink of water, which was incidental to the employment itself. The evidence appears clear that George Nelson became angry when he thought plaintiff was stepping ahead of him to get to the water fountain — trying to go out of turn. This water fountain had been placed on the premises by the employer for the use of its employees. Obviously, an employee would not step out of the course of his employment each time he went to get a drink of water. It seems clear that if plaintiff had fallen on the way to the water fountain, or had bumped his head while leaning over for a drink and injured himself, his injury would have been compen-sable. By analogy, it would seem that an injury caused by a dispute as to which employee got to the water fountain first would be compensable.

A strikingly similar case is that of Commercial Standard Ins. Co. v. Austin, Tex.Civ.App., 128 S.W.2d 836. That case involved a situation where the employees were “fishing” logs from the bottom of a mill pond and loading them on boats, to then be unloaded by a chain. When one employee tried to push his boat ahead of another and out of turn, this angered another employee and a dispute arose and an injury resulted. The court held that this was an injury resulting from a controversy growing out of the employment.

The rule is stated in 62 Tex.Jur.2d 658 as follows:

Acts essential to the life, comfort, and convenience of the employee while at work, though they are strictly personal to himself and not acts of service, are incidental to the service. The fact that the employee is human is necessarily taken into consideration. Accordingly, an employee may in the course of his employment do any act of a personal nature reasonably necessary to his health and comfort, such as quenching thirst and relieving hunger, or taking a bath or medicine, and injuries sustained in the performance thereof arise out of the employment and are compensable.

See also Aetna Casualty & Surety Co v. England, Tex.Civ.App., 212 S.W.2d 964 and McClure v. Georgia Cas. Co., Tex.Com.App., 251 S.W. 800.

We hold the evidence establishes that plaintiff’s injury was accidental within the meaning of Article 8309a, Section 1 thereof, and that it occurred while plaintiff was engaged in his employer’s business and had to do with and originated in his employer’s business.

We do not discuss defendant’s points of error to the effect that the answers to the aforesaid issues 2 and 3 were against the great weight and preponderance of the evidence for the reason that defendant did not attempt to brief said points. Should we have, the same would have been overruled.

We treat the next series of defendant’s points of error. As previously indicated, defendant vigorously contested injury in the course of employment, and stresses that the injury grew out of a personal incident between the two men.

The court submitted the issue of injury in the course of employment, but submitted no defensive issues of defendant’s. Defendant requested:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that E. B. Hopkins’ injury, if you have so found, was not caused by his willful intention to unlawfully injure some other person?
SPECIAL ISSUE NO. 7
Do you find from a preponderance of the evidence that E. B. Hopkins’ injury, if you have so found, was caused by hjs willful intention to unlawfully injure some other person?
SPECIAL INSTRUCTION A
An injury, (as referred to in this charge) has to do with and originates in the work, business, trade or profession of the employer, when it results from a risk or hazard which is necessarily, or ordinarily, or reasonably inherent in, or incident to, the conduct of such work or business.
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that George Nelson injured E. B. Hopkins, if you have so found, because of 'matters which were connected with E. B. Hopkins’ employment?
SPECIAL INSTRUCTION B
In connection with the foregoing Special Issue (3), you are instructed that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that plaintiff was not injured because of matters not connected with his employment.
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that George Nelson injured E. B. Hopkins because of matters personal to him and not directed against Hopkins as an employee, or because of his employment?
SPECIAL INSTRUCTION C
In connection with the foregoing Special Issue, you are instructed that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that George Nelson did not injure E. B. Hopkins because of matters personal to him and not directed against Hopkins as an employee, or because of his' employment.
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that George Nelson did not injure plaintiff, E. B. Hopkins, because of matters personal to him and not directed against Hopkins as an employee, or because of his employment?
SPECIAL INSTRUCTION D
In connection with the foregoing Special Issue, you are instructed that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that George Nelson did not injure plaintiff, E. B. Hopkins, because of matters personal to him and not directed against Hopkins as an employee, or because of his employment.
SPECIAL ISSUE NO. 8
Do you find from a preponderance of the evidence that the injury received by E. B. Hopkins, if you have so found, did not have to do with or originate in the work, business or trade of his employer?

Defendant’s pleadings had asserted all the defensive matters to which the foregoing special issues and instructions ■ relate. Explanatory of why defendant again urges the failure to submit the same as error in this court, a résumé of the substance of pertinent testimony follows:

George Nelson testified, contrary to plaintiff’s version, that the fight started thusly:

A. Well, I was over on my job bunching off a load of lumber, and Mr. E. B. [plaintiff] walked up to me and asked me did I ask his wife to kiss myself, and I told him, ‘No.’ And he told me he would slap me.
Q. Did I understand you to say that he was going to slap something out of you?
A. Yes, sir, he did.
Q. What happened next?
A. Well, that’s when the fight started, when the fight was.
Q. Did he try and hit you?
A. He tried to slap me.
Q. Did you hit him?
A. Yes, I did.

This brief testimony, together with other not quoted, shows that plaintiff started the fight with Nelson because of some alleged insult by Nelson to plaintiff’s wife a few days prior to the incident. Nelson steadfastly insisted that plaintiff started the fight. He was equally insistent that it did not have anything to do with the men’s work or anything at the job. He denied that it had anything to do with an argument over the water fountain as first herein-before testified to by plaintiff.

Eugene Fobb, George Nelson’s step father and a fellow employee, testified that he had a conversation with plaintiff after the fight:

He told me, he said he was going to kill that so and so. And I asked him, I said, ‘What’s the trouble,’ and he told me, and he cursed, you know, about his wife, she wasn’t doing no such thing—
Well he told me he told his wife to kiss you-know-what.
Yes, sir, and I asked him when did that happen; he said, ‘Sunday.’

He stated that on the day of the fight, Wednesday, he asked plaintiff why he waited three days before bringing it up on the job, but the plaintiff didn’t answer him. In brief, his testimony was virtually that plaintiff told him that he had attacked George Nelson because of personalities involving plaintiff’s wife.

Lathana Irvin, a follow employee of plaintiff, testified that he had had a conversation with plaintiff the day before the fight and that plaintiff mentioned that Nelson had made a pass, a word out of the way to his wife. He said that Nelson had spoken something to his wife that he didn’t like. He testified that he saw most of the fight but that the mill was noisy and he couldn’t hear what they were saying. He didn’t remember who hit who first.

The definition of “injury sustained in the course of employment” which was contained in the court’s charge went further than the usual definition of such term as used in workmen’s compensation charges, and set out the full definition as provided by Section 1 of Article 8309, Vernon’s Civil Statutes of Texas thusly:

You are instructed that by the term “injury sustained in the course of employment” as used in this charge shall not include: (1) An injury caused by an act of God, unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from an act of God responsible for the injury than ordinarily applies to the general public. (2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment. (3) An injury received while in a state of intoxication. (4) An injury caused by the employee’s wilful intention and attempt to injure himself or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer upon the employer’s premises or elsewhere.

Obviously, defendant is complaining because it did not have separate instructions and separate special issues covering the very same thing that was covered by the definition of “injury sustained in the course of employment” quoted above. In order for the jury to answer Special Issue No. 3 “Yes”, it was necessary, because of the court’s definition of “injury sustained in the course of employment”, for the jury to find from a preponderance of the evidence that plaintiff’s injury was not (2) caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment, or (4) caused by the employee’s wilful intention and attempt to injure himself or to unlawfully injure some other person. If the trial court had given defendant’s requested issues, he would have simply been asking the jury the same questions again. If the trial court had given defendant’s requested instructions, he would simply have been telling them something he had already told them in his definition of “injury sustained in the course of employment”. The same thing must be said of defendant’s other special requested issues and instructions inquiring as to whether plaintiff’s injury was caused by his wilful intention to unlawfully injure some other person. It was held in Texas Employers’ Insurance Association v. Gill, Tex.Civ.App., 252 S.W. 850, that where the Court by definition charged the jury that the term “injury sustained in the course of employment” does not include an injury caused by the act of a third person for personal reasons, it is not necessary to then submit an issue as to whether the man was injured by a third person for reasons personal to himself. Also see Maryland Casualty Company v. Smithson, Tex.Civ.App., 341 S.W.2d 951.

Of course, it is recognized law that a trial court need not submit an issue both affirmatively and negatively. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314. It is also the law that the trial court is not required to submit two issues covering the same subject matter, and on both of which the burden is upon the same party. Pacific Employers Ins. Co. v. Brasher, Tex.Civ.App., 234 S.W.2d 698. It was plaintiff’s burden to negative subdivisions (2) and (4) of Section 1 of Article 8309, and the charge as submitted properly placed such burden. Had the trial court used only the abbreviated definition of “injury sustained in the course of employment”, then it would have been necessary to submit separate issues on subdivisions (2) and (4), and these issues would have to place the burden of proof on the plaintiff. Such was not necessary. Guest v. Guest, Tex.Civ.App., 235 S.W.2d 710; Liberty Mutual Ins. Co. v. Taylor, Tex.Civ.App., 244 S.W.2d 350. The line of cases such as Consolidated Underwriters v. Scott, Tex.Civ.App., 272 S.W. 520; Cherry v. Magnolia Petroleum Co., Tex.Com.App., 45 S. W.2d 555; Texas Indemnity Ins. Co. v. Cheely, Tex.Civ.App., 232 S.W.2d 124; American General Insurance Co. v. Williams, 149 Tex. 1, 227 S.W.2d 788; Williams v. Trinity Universal Ins. Co., Tex.Civ.App., 309 S.W.2d 850; Texas Employers’ Ins. Ass’n v. White, Tex.Civ.App., 68 S.W.2d 511 and Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350, are not in point. Accordingly, defendant’s points of error relating to the court’s failure to submit its aforesaid special issues and instructions are overruled.

Defendant’s last point of error is addressed to Special Issue No. 7 in the court’s charge, which was:

SPECIAL ISSUE NO. 7
What do you find from a preponderance of the evidence to be the duration of such total incapacity, if any you have found? Answer by stating “Permanent” or by stating the number of weeks, if any, or answer “None.”

Defendant urges that the court, by instructing the jury in said issue to answer “none” if it found no incapacity, erroneously placed the burden on the defendant to prove by a preponderance of the evidence that plaintiff had no total disability. Thus, defendant does not object to the form of the issue but objects to the form of the suggested answer. This objection is met by the following language in Rule 277, Texas Rules of Civil Procedure:

* * * the court may submit disjunc-tively in the same question two inconsistent issues where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. For example, the court may, in a workmen’s compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled.

There is nothing improper about this suggested form of answer, and it could not possibly be harmful to defendant. The point is overruled.

Judgment affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    D. M. ROBINSON, Appellant, v. D. L. FAULKNER, Appellee.
    No. 16992.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1967.
    Rehearing Denied Dec. 22, 1967.

      Alvin Boyd, Dallas, for appellant.
    Gerald R. Coplin, of Passman, Jones, Stewart, Andrews & Hunter, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

D. L. Faulkner brought this action against D. M. Robinson seeking damages for breach of an oral contract involving the construction of an apartment house project in Dallas, Texas. Robinson filed a cross-action based on the same oral contract in which he sought an amount of money which he claimed to be due and owing him thereunder. Following trial before the court, without a jury, judgment was rendered favorable to Faulkner and denying Robinson any relief. The court filed findings of fact and conclusions of law to which Robinson leveled exceptions.

Appellant Robinson predicates his appeal from such judgment upon four points of error which we find lacking in merit and are therefore overruled. The judgment is affirmed.

By his first point appellant contends that the trial court erred in finding that the contract between the parties was for $24,000 since the “weight of the competent evidence” establishes an agreed price of $28,-000.

The trial court expressly found that the sum of $24,000 was the agreed amount of the verbal contract entered into between the parties. This being a nonjury case, the trial court was the judge of the credibility of the witnesses and the weight to be given their testimony, and the findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of the jury. Where there is evidence of probative force to support the findings and judgment, they are controlling on the reviewing court and will not be disturbed, even though the evidence is conflicting and the appellate court might have reached a different conclusion. 4 Tex.Jur.2d, § 839, pp. 398-401. However, an appellate court may set aside a finding or judgment of the trial court where either is without any substantial support in the evidence or where such finding is against the great weight and preponderance of the testimony. Where the finding of the trial court is attacked as being against the weight of the competent evidence we are required to weigh and consider all of the evidence in the case regardless of whether there is some evidence of probative force to support the judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); 4 Tex.Jur.2d, § 839, pp. 403-404, and cases therein cited.

In obedience to these rules we have carefully considered all of the evidence bearing upon this finding, as reflected in the statement of facts, and find that it is indeed conflicting. Both parties agree that the con-” tract sued upon was verbal. Appellant Robinson testified that the contract price was $28,000. Appellee Faulkner testified that it was $24,000. The witness Gene Hadsell, an insurance agent, testified that appellant had requested him to secure the issuance of a payment bond for the work in question, such bond being for the sum of $24,000. The witness Charles Smith testified that he recalled a conversation wherein he assisted both appellant and appellee to estimate the cost of labor and material on the job in question. His testimony supported the theory of appellee concerning the total cost of the contract. Appellant introduced certain exhibits representing advance payments or “draws” on the amount due under the contract, two of such exhibits containing mathematical calculations which would lead to the conclusion that the contract price was $28,000. The third exhibit introduced by appellant did not support such calculation.

It is quite clear from our review and evaluation of all of the evidence in this case that the trial court had before it conflicting evidence of probative force and saw fit to choose the evidence supporting appellee rather than that of appellant. We find that the evidence was entirely sufficient to support the trial court’s findings.

By his second point appellant contends that the court erred in finding that appellant had defaulted in the performance of the work and that, as a result of said default, appellee was damaged in the sum of $1,226.70. Appellant says that the “weight of the competent evidence” establishes no default and “there is no competent evidence” as to damages arising from the alleged default. Such point is multifarious but we will consider the same in the light of the argument advanced.

The trial court, in its findings of fact, found that appellant left the job before it was complete and also that some of the work which had been performed was not acceptable. The court further found that appellee had to do the work which was properly the responsibility of appellant and therefore was entitled to a credit of $1,226.-70 upon the basic contract.

Again, our examination of this record in the light of the points presented has required us to give consideration to all of the testimony. A number of disinterested witnesses testified concerning the various items of work required to be done in order to complete work that should have been done by appellant prior to the time he left the job. There was evidence that appellant did leave the job prior to the time his part of the . work was finished. While the testimony may be contradictory in nature yet the trial court resolved the conflict in favor of appellee. Appellant argues that those things in issue were only “minor items” and that the specific evidence given by appellee as to the character of the work done was so 'general and unresponsive as to be without credible basis. However, the testimony was admitted without objection and was properly before the court. Again the situation is one where the credibility of witnesses and the weight to be given their testimony is within the province of the trial judge and he may disregard controverting testimony if he sees fit. Moser v. McLemore, 266 S.W.2d 253 (Tex.Civ.App., Amarillo 1953); Liles v. Winters Independent School District, 326 S.W.2d 182 (Tex.Civ.App., Austin 1959). We find abundant evidence in this record to support the trial court’s findings.

By his third point appellant contends that since his cross-action was based upon a sworn account, duly verified, the unsworn answer of appellee was not sufficient to join issue and therefore the trial court should have awarded him judgment based upon such verified pleadings.

Appellant’s cross-action alleged that he entered into an oral contract with appellee on or about April 1, 1965 whereby he was to be a subcontractor to furnish mud and apply mud to the walls and prepare the walls for paint for a total consideration of $28,000. He further alleged that the labor was done and materials furnished at the special instance and request of appellee, pursuant to the oral contract. Appellant set out an “itemized account” and made affidavit wherein he swore to his claim stating that? it was “just and true” and that the same is due, and that all just and lawful offsets, payments and credits have been allowed. Appellee did not file a verified answer to appellant’s cross-action but proceeded to trial upon his general denial thereto. Appellant now contends that since appellee did not deny the account by verified answer pursuant to the requirements of Rule 185, Texas Rules of Civil Procedure, the court should have granted judgment to appellant for the amount sued for.

The sine qua non of appellant’s contention presented by this point is that his cause of action, as evidenced by his cross-action against appellant, was upon a sworn account and not upon a special contract. A careful examination of the entire cross-action filed by appellant clearly reveals that his action is one upon a verbal contract for a definite sum of money, to-wit, $28,000, and is not upon a sworn account. It is true that there is language in his cross-action similar to that utilized in actions upon sworn accounts but when examined within its four corners the cross-action clearly demonstrates a suit upon a special contract. Moreover, appellant testified that the dispute in this case was the amount of agreed price of the contract.

During the trial the court asked counsel for appellant the following question:

“THE COURT: You mean what work he did was reasonable. No, this is a contract price, isn’t it? There isn’t anything unreasonable insofar as the subcontractor is concerned, that is, it is not a quantum meriat (sic) contract, it is either 24 thousand or 28 thousand, isn’t it?
“MR. BOYD: Yes, sir.”

We think the examination of the pleadings, the testimony of appellant himself, and the admission of appellant’s counsel in open court illustrates conclusively that the real nature of appellant’s cross-action was that of suit on contract rather than upon-sworn account. This being true it was unnecessary for appellee to verify his answer pursuant to Rule 185, T.R.C.P., as was required in the cases cited by appellant.

In the recent case of Ball v. Cooper-Stanley Co., Inc., 413 S.W.2d 467 (Tex.Civ.App., Dallas 1967), we considered a similar case involving suit for services rendered under a paving contract. The trial court had rendered judgment against appellant in that case on the theory of sworn account due to the fact that appellant had failed to verify his answer. Appellant contended that the suit being for an amount claimed to be due under special contract he was not required to verify his answer as required by Rule 185, T.R.C.P. In reversing the trial court we stated that the agreement was sufficiently definite to constitute a “special contract” which did not require a verified answer. See also Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958).

The pleadings and proof in this case are far stronger than in the Ball case, supra, as demonstrating the true nature and purpose of the cause of action. The cause of action evidenced by the cross-action being upon a contract, and not a sworn account, within the meaning of law, appellee was not required to verify his answer.

Moreover, even if the cause of action was upon sworn account appellee’s failure to verify his answer, being a defect in pleadings, has been waived by appellant’s failure to bring the defect, commission, omission or fault of the pleading to the attention of the court before rendition of judgment. Rule 93 (k), T.R.C.P.

By appellant’s fourth point he contends that the findings of fact and conclusions of law of the court are in conflict with the findings of fact and conclusions of law contained in the judgment itself and therefore such contrary findings are mutually destructive so that no judgment could legally be rendered.

In the court’s judgment, in paragraph 2 thereof, the court found:

“The Court finds that the parties entered into an oral contract whereby D. L. FAULKNER was to pay the sum of TWENTY-FOUR THOUSAND AND NO/100 ($24,000.00) DOLLARS to D. M. ROBINSON for the subcontract of furnishing of mud and applying same to the walls for preparation for painting on the Lake June Apartment Project in Dallas, Dallas County, Texas.”

Later on in the judgment the court found:

“It is the conclusion of the Court that the cross-action of Cross-Plaintiff constitutes a suit upon a sworn account and that the pleadings of Plaintiff (Cross-Defendant) constitute a sufficient answer thereto under the law, and that issue has been joined by the parties.”

Thereafter appellee Faulkner filed his motion to modify and correct the judgment in which it was pointed out that the findings, covered above, were inconsistent and in error and that the judgment should therefore be corrected.

Thereafter the trial court, in his findings of fact and conclusions of law, made the following finding:

“2. Defendant, as Cross-plainiff, sued on an oral contract for the balance owing on a $28,000 contract, plus attorneys fees, for taping, bedding, texturing and painting the apartments in the Lake June Project.”

The actions herein brought are for damages for breach of contract, so far as the plaintiff is concerned, and for the unpaid portion of an oral contract calling for $28,000 for taping, bedding, texturing and painting the apartments in question and for attorneys’ fees, so far as defendant is concerned. References to “findings of fact” in the decree of February 2, 1967, approved as to form by attorneys hereto, should not have been incorporated therein and are surplusages, as is true of denomination of the character of defendant’s cross-action as a “sworn account.”

Appellant contends that the conflicting findings made by the court in the judgment itself and in the findings of fact and conclusions of law are such that no judgment may be rendered thereon and that a new trial should be granted.

An examination of the record reveals that the trial court had obviously made an error in incorporating the findings in the judgment relating to the suit on sworn account. Upon motion of appellee such error was corrected by the court, as it had a perfect right to do.

“In so far as the judgment undertakes to recite findings of fact, such findings are not conclusive. If erroneous, they would not be made to impeach the validity of the judgment.” Gillette v. Davis, 15 S.W.2d 1085 (Tex.Civ.App., Eastland 1929).

Where original findings are superseded by amended findings the initial findings must be disregarded. 57 Tex.Jur.2d, § 594, p. 356. In the case of Hood v. Adams, 334 S.W.2d 206 (Tex.Civ.App., Amarillo 1960), the court found that there was an apparent conflict between two sets of findings of fact as well as a conflict between the judgment entered and the amended findings. The court held, however, that any conflict between the original findings of fact and those later filed must be resolved in favor of the later filed findings. See Waters v. Yockey, 193 S.W.2d 575 (Tex.Civ.App., Dallas 1945).

The judgment of the trial court is affirmed.


author: TUNKS, Chief Justice.

text:
    H. M. R. CONSTRUCTION COMPANY, Inc., Appellant, v. WOLCO OF HOUSTON, INC., Appellee.
    No. 28.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 29, 1967.
    Rehearing Denied Dec. 20, 1967.

      Thomas B. Weatherly, Sam W. Davis, Jr., James R. Bertrand, Vinson, Elkins, Weems & Searls, Houston, for appellant.
    William E. Junell, Thomas S. Terrell, Sewell, Junell & Riggs, Houston, for appel-lee.
   TUNKS, Chief Justice.

H. M. R. Construction Co., Inc. (hereinafter called H.M.R.) was engaged, as general contractor, in the construction of a prefabricated concrete building. H.M.R. entered into a subcontract with Wolco of Houston, Inc. (hereinafter called Wolco), under the terms of which Wolco agreed to furnish and erect prefabricated concrete beams and other portions of the building. Wolco, in turn, entered into its subcontract with Commercial Erection and Equipment Corporation (hereinafter called Commercial), under the terms of which Commercial was to perform certain phases of Wolco’s contract, particularly the erection of the prefabricated beams and columns. During the time Commercial was performing its portion of the construction under its contract, the building collapsed and two of Commercial’s employees received personal injuries. Commercial carried a policy of Workmen’s Compensation insurance which covered the injuries received by its employees and protected Commercial from liability to them for their injuries.

The two injured employees filed suit for personal injuries against H.M.R. and Wol-co. In the trial court the jury found that H.M.R. was guilty of negligence which was a proximate cause of the accident and the injuries received by the injured plaintiffs. The jury also found that Commercial was guilty of negligence which was a proximate cause of the accident and the injuries received by the plaintiff. The jury found that Wolco was not guilty of any such negligence. The trial court rendered judgment on the verdict in favor of the plaintiff and against H.M.R. There is no appeal from that portion of the judgment.

H.M.R., by pleading in the trial court, sought either indemnity or contribution from Wolco. (Appellant, in its brief and in oral argument, abandoned its plea for indemnity. Its prayer here is for rendition of judgment in its behalf for contribution). After the jury’s verdict was received, it was agreed that that portion of the cause of action asserted by H.M.R. wherein it sought indemnity or contribution, might be served so that final judgment could be entered in behalf of the injured plaintiffs against H.M.R. Subsequently, the trial court entered judgment denying H.M.R. any recovery of either indemnity or contribution from Wolco. It is from that judgment that H.M.R. has perfected its appeal.

The record shows conclusively that Commercial was an independent contractor.

The two points of error presented by H.M.R. as appellant to this court are in the following language:

“First Point of Error:
“The trial court erred in not entering judgment that H.M.R. recover contribution from Wolco because of Wolco’s breach of its contractual duty to H.M.R. to perform its contract in a workman like manner.
“Second Point of Error:
“The trial court erred in not entering judgment that H.M.R. recover contribution from Wolco because Wolco could not escape liability by assigning inherently dangerous work to an independent contractor when such contractor acts negligently.”

In a contract between H.M.R. and Wolco, there arose a duty on the part of Wolco to see that the construction called for in the contract was done in a good and workmanlike manner. In the absence of an expressed agreement to that effect, one would have been implied by nature of the contract itself. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508; Lincoln v. Pohly, Tex.Civ.App., 325 S.W.2d 170, writ ref., n. r. e.

That duty was contractual in nature. Its breach would have given rise to a cause of action sounding in contract. Wolco could not relieve itself of that duty by engaging a subcontractor to perform it. Western Oil Sales Corp. v. Bliss & Wetherbee, 299 S.W. 637 (Com.App.). There is, however, no question raised here as to the breach of that duty. It was discharged by Wolco when the beams were fabricated and erected in accordance with the plans and specifications set forth in its contract.

Also, the contract impliedly imposed a duty on the part of Wolco to exercise ordinary care in the construction called for. The contract between H.M.R. and Wolco created a relation between those two parties out of which grew a duty on the part of Wolco to use care. A breach of that duty by Wolco’s employees would have been negligence and H.M.R. would have had a tort cause of action against Wolco for the damages it sustained as a proximate result thereof. Montgomery Ward & Co. v. Scharrenbeck (supra). The fact that Wolco could not relieve itself of its duty to perform the contract in a good and workmanlike manner by the employment of an independent contractor to perform a part of the contract, does not mean that Wolco was liable in a tort cause of action that grew out of the negligence of its independent contractor. Ordinarily, one does not incur a tort liability for the negligent conduct of its independent contractor. Woodard and Lee Homes v. Southwest States, Inc. (Tex.Sup.Ct.), 384 S.W.2d 674.

The position taken here by H.M.R. is in direct conflict with the opinion and the holding of the court in State v. LeBlanc, Inc., Tex.Civ.App., 399 S.W.2d 919, no writ history. In that case, the general contractor had agreed to make alterations, additions and improvements on a building. The general contractor subcontracted the electrical work. The sub-contractor, in the performance of the electrical work, was alleged to have been guilty of negligence which caused fire damage not only to the building being constructed, but also to other property belonging to the owner. The damage to the building, which was the subject matter of the general contract, was repaired by the general contractor. The general contractor then demanded payment. The owner insisted on its right to withhold the cost it had incurred in repairing the other buildings damaged by the fire caused by the sub-contractor. The trial court rendered summary judgment for the general contractor and the Court of Civil Appeals affirmed.

Thus, in the LeBlanc case, it was held that the negligence of an independent • sub-contractor which caused damage to other property of the owner, did not constitute a breach by the general contractor of any contractual duty of the general contractor to construct the building which was the subject matter of the construction contract, in a good and workmanlike manner. Nor did the negligence of the independent sub-contractor constitute any actionable breach of the general contractor of its implied duty to exercise ordinary care in the construction.

Ordinarily, (but not always) the right to indemnity and the duty to indemnify grow out of contract. Ohio Oil Co. v. Smith (Tex.Sup.Ct.), 365 S.W.2d 621; 30 Tex.Jur.2d 444; 42 C.J.S. Indemnity page 564; 27 Am.Jur. 456. On the other hand, the rights and duties of contribution arise in the absence of any contract where there is a common liability of two or more parties to another party. Maresh v. Jennings, Tex.Civ.App., 38 S.W.2d 406, writ ref.; 44 Tex.Law Review, 326; 13 Tex. Jur.2d 686; 18 C.J.S. Contribution page 3; 18 Am.Jur. 10. While we know of no reason why one party might not contractually obligate himself to contribute to the loss sustained by another party in discharging a liability, we find nothing here to suggest that Wolco made any such agreement, express or implied, to contribute to any such loss of H.M.R. in discharging its liability to the injured workman.

Appellant’s first point of error is overruled.

In the trial court, the jury found that the erection of the building made the basis of the lawsuit was inherently dangerous. That finding is challenged by the appellee. Whether that finding was or was not correct, we need not decide. If the erection of the building was inherently dangerous, the non-delegable duty which grew out of that situation was not a duty which Wolco owed to the employees of its sub-contractor, Commercial. In Humble Oil & Refining Co. v. Bell, Tex.Civ.App., 180 S.W.2d 970, err. ref., w. o. m., it was said: “In regard to the liability to the employer of an independent contractor where the work contracted for is inherently dangerous, the rule is that the employer may be held liable to a third person for the negligence of the independent contractor in the performance of such work. This, even though the employer is guiltless of negligence.

Is an employee of an independent contractor a third person within the meaning of this rule? It is our opinion that such employee is not.” See also J. A. Robinson Sons, Inc. v. Ellis, Tex.Civ.App., 412 S.W.2d 728, err. ref., n. r. e.; Nance Exploration Co. v. Texas Emp. Ins. Ass’n., Tex.Civ.App., 305 S.W.2d 621, err. ref., n. r. e.; Sword Houston Fire & Cas. Ins. Co., Intervener v. Gulf Oil Corp., 251 F.2d 829 (5th Cir.); Cagle v. McQueen, 200 F.2d 186 (5th Cir.).

Since Wolco was not here jointly liable with H.M.R. to the injured workman, H.M.R. was not entitled to recover judgment for contribution. City of Houston v. Watson, Tex.Civ.App., 376 S.W.2d 23, err. ref., n. r. e.; Robinson v. Ashner, Tex.Civ.App., 357 S.W.2d 611, affirmed 364 S.W.2d 223; 44 Tex.Law Review 326; Article 2212, Vernon’s Ann.Tex.Civ.St.

The judgment of the trial court is affirmed.


author: NYE, Associate Justice.

text:
    HIGHLANDS INSURANCE COMPANY, Appellant, v. James E. CLEMENTS, Appellee.
    No. 300.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dec. 28, 1967.
    William R. Eckhardt, of Vinson, Elkins, Weems & Searls, Houston, for appellant.
    Moise H. Simon, Bay City, Raymond L. McDermott, Houston, for appellee.
   OPINION

NYE, Associate Justice.

This is a compensation suit brought against appellant Highlands Insurance Company by appellee James E. Clements, who alleged that he sustained an accidental injury on December 31, 1964, while working in the course and scope of his employment for Brown & Root, Inc. The jury in response to special issues found that the appellee had sustained such an accidental injury, which was a producing cause of total and permanent injury and incapacity. The jury also found that the appellee’s incapacity was not caused solely by a virus infection known as herpes zoster which was not connected and did not result from an accidental injury, and further that ap-pellee’s incapacity to work has not been caused solely by loss of sight of his right eye. The court, on the jury verdict, entered judgment for appellee. The appellant insurance company has perfected its appeal to this Court raising six points of error, all of which are evidence points.

Appellant restates his points one through four that there was no evidence of probative force to support the jury’s finding that appellee sustained an accidental injury on December 31, 1964, while working within the scope of his employment. These four points include assignments that the trial court erred in overruling appellant’s motion for instructed verdict, overruling appellant’s motion to disregard certain jury findings, and for refusing to grant appellant’s motion for judgment non ob-stante veredicto. Points five and six are to the effect that the jury verdict that ap-pellee sustained an accidental injury and that his incapacity was not caused solely by a virus infection is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Considering these evidence points we are directed to the law as has been announced and repeatedly upheld by our Supreme Court in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); see In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The record shows that the appellee was forty-four years of age and resided at Falfurrias, Texas. He began working as an insulator in 1953 and continued to pursue the insulation trade until his injury. In August 1964 he was employed by Brown & Root, Inc. to work on a project at the Celanese plant near Bay City, Texas. Prior to the accidental injury of December 31, 1964, the appellee was in excellent physical condition. Following the alleged accidental injury appellee virtually lost the entire sight of the right eye.

The record shows that on the last day of December 1964 the appellee along with his supervisor Calvin Funk, were conducting an inspection of the facilities and particularly a red iron building. While on top of this “red iron” building the appellee looked directly into a duct which was located on the top floor of this building. As he peered into the inner recesses of the duct he was momentarily exposed to warm vapors emitting from the duct. He estimated that he was standing exposed to the vapors for about thirty seconds; that these vapors possessed a sour or foul pungent odor. Appellee testified that he immediately experienced a sensation described as “smart” on the side of the face as he was exposed to the vapors. Later on during the course of the afternoon, and within two hours after this exposure, and before the appellee got off duty at 5:30 p. m., he noticed an increased burning on his forehead, the right side of his face, and around his right eye. This incident occurred on Friday and upon returning to work on Monday the appellee immediately reported his condition to the company nurse. She observed that the appellee’s eye was severely irritated and that the right side of his face was surrounded by tiny blisters. She noted that the appellee was in severe discomfort and she therefore made arrangements for him to be seen by the company doctor. The appellee was hospitalized within four or five days for a period of three days for the treatment of this condition. His condition was diagnosed as “shingles of the eye” or herpes zoster.

Herpes zoster was defined medically as neurotropic virus which tends to affect the nervous tissue and is similar to chicken pox, the result of which can cause permanent damage and injury to the eye. It is appellant’s contention that the virus infection, herpes zoster has no causal connection between appellee’s exposure to the vapors and his ultimate injury. Appellee’s doctor testified that there is a medical theory supported by experts to the effect that while injury does not cause a viral infection, in some way, an injury does precipitate it. This, according to some experts, is because the virus which has been lying latent in such cases, becomes activated from a condition of dormancy, and is able to flourish in tissues devitalized by trauma. Appellee’s doctor agreed with the statement of experts that under this theory the injury precipitates the herpes zoster. The appellee’s doctor testified that the reported injury caused or aggravated the tissues in the appellee’s right eye, that brought on the attack of herpes zoster in the appellee. He testified that this could be brought on by acid or other chemicals of a toxic nature irritating the eye; that to be exposed to acid or other toxic substance, the disease of herpes zoster is precipitated and it follows as a natural chain of causation from the injury. The doctor further testified that he would not expect a burning or reddening of the face around the patient’s eye to develop within a short time after exposure unless there were toxic vapors present.

The supervisor, Calvin Funk, who had accompanied the appellee on the inspection tour of the red iron building, verified that the appellee had looked into the duct while inspecting it and that the subject duct was emitting vapors. lie could not testify whether or not the vapors had any smell as he was standing beside the duct and did not have an opportunity to smell the vapors.

Although the appellant had evidence in the record that the vapors emitting from the vent was nothing but hot demineralized water, it was undisputed that hot deminer-alized water is completely odorless. Appellant’s witness, Dr. Roy Finch, who was an engineer and one of the plant area superintendents, admitted in effect that if the vapor which appellee was exposed to emitted sour or foul smell then some foreign substance obviously had been introduced into the system. The record evidences that there was acid in and around the plant on the day of the injury and that such acids emitted a sour or foul smell. In view of the fact that the appellee testified that the vapors coming from the vent had a sour, foul smell and pungent odor, the jury could believe that it would naturally follow that some toxic substance was in the vapor and that this precipitated the injury of the appellee. Travelers Insurance Co. v. Fagan, 366 S.W.2d 885 (Tex.Civ.App.-Texarkana 1963, err. ref., n. r. e.); Fidelity Union Casualty Co. v. Koonce, 51 S.W. 2d 777 (Tex.Civ.App.-Amarillo 1932); Traders & General Ins. Co. v. Wright, 144 S.W.2d 626 (Tex.Civ.App.-Eastland 1940, err. ref.); Aetna Life Ins. Co. v. Harris, 83 S.W.2d 1087 (Tex.Civ.App.-Austin 1935); Atkinson v. United States Fidelity & Guaranty Co., 235 S.W.2d 509 (Tex.Civ.App.-San Antonio 1950, err. ref., n. r. e.); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App.-Houston 1966); Travelers Ins. Co. v. Smith, 266 S.W. 574 (Tex.Civ.App.-Beaumont 1924); Texas Employers’ Ins. Ass’n v. Drews, 297 S.W. 630 (Tex.Civ.App.-Dallas 1927); Maryland Casualty Co. v. Rogers, 86 S.W.2d 867 (Tex.Civ.App.-Amarillo 1935, err. ref.). The jury chose to believe the appellee and his witnesses’ testimony.

We have read the complete record and find that there is sufficient evidence to support the jury’s findings and that the same is not against the greater weight and preponderance of the evidence. Appellant’s points are overruled.

Judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Victor ROSALES, Appellant, v. Leopoldo MUNIZ, Jr., et al., Appellees.
    No. 14636.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1967.
    Rehearing Denied Dec. 27, 1967.

      Glenn H. Ramey, F. R. Nye, Jr., Rio Grande City, for appellant.
    A. J. Vale, Pope & Pope, Rio Grande City, for appellees.
   BARROW, Chief Justice.

Appellant filed suit, being Cause No. 3783 in the District Court of Starr County, in the nature of a bill of review on March 14, 1967, to set aside and hold for naught part of a final decree of partition of Por-ción 77, Mier Jurisdiction, Starr County, Texas, entered on October 11, 1966, in Cause No. 2373. Although the final decree in Cause No. 2373 involved about six thousand acres and several hundred parties, appellant sought to set aside only that part of the decree involving a described 41.06 acres of land, and brought suit against appellees, Leopoldo Muniz, Jr., and A. J. Vale, who were alleged to be the only parties claiming any interest in this particular tract. The decree was rendered by default as to appellant. Appellant alleged in this suit that he was not served with process and had a valid claim to this tract under the ten-year statute of limitations, Art. 5510, Vernon’s Ann.Civ.St.

At the conclusion of a preliminary hearing on appellees’ plea in bar and plea in abatement to Cause No. 3783, the trial court entered a take-nothing judgment and ordered this cause dismissed. In this judgment the trial court held that the bill of review was a collateral attack on the final decree in Cause No. 2373, and that this decree was res judicata to appellant’s bill of review. The court also concluded that all of the original parties named in Cause No. 2373 were necessary parties to this bill of review.

At this preliminary hearing, appellees introduced certified copies of the Commissioners Report, the preliminary decree of partition, the final decree of partition and the sheriff’s return showing service of citation upon appellant on September 16, 1959, in Cause No. 2373. These instruments were introduced for the purpose of appellees’ plea in bar and were received over appellant’s objection that this evidence was pertinent to the trial on the merits and not as a plea in bar. The trial court overruled appellant’s objection, sustained appel-lees’ plea to dismiss the case, and refused to permit appellant to offer evidence refuting the sheriff’s return. By bill of exception, appellant was permitted to show that, if permitted, he would testify to lack of process and to his adverse possession of this land from 1929 until the final decree was entered in No. 2373.

The trial court erred in holding, on this preliminary hearing, that appellant’s bill of review was a collateral attack on the final judgment in Cause No. 2373. In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961) the Supreme Court held that a bill of review filed in the proper court and against proper parties is one authorized method of making a direct attack on a judgment. It was there said: “Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process.” The final decree in Cause No. 2373 is not res judicata to appellant’s bill of review.

Although the judgment of the trial court is obviously based on this erroneous action in sustaining appellees’ plea in bar, the trial court also concluded that all of the several hundred parties named in the preliminary and final decree of partition in Cause No. 2373 are necessary parties to this bill of review.

A somewhat similar question was presented the Supreme Court in Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260 (1961). There heirs of one of over 1,000 defendants filed an equitable bill of review seeking to recover one town lot and a 5-acre farm tract which was a part of the original suit in trespass to try title involving several thousand acres. The trial court sustained defendant’s plea in abatement because of plaintiffs’ failure to join all the other parties to the original action, although the original judgment had found that said parties asserted no title, claim or interest in the land claimed by plaintiffs. The Supreme Court first considered and held that a part of a judgment may be set aside as to some parties and left intact as to others. As to who were necessary parties, the Court said: “We regard the majority of the Texas cases as placing the emphasis upon whether all persons who would be or could be affected by the result are before the court rather than upon all those who were parties to the proceeding attacked whether they have any present interest to be protected or not. The result of those cases, cited above, is both sound and just. No reason appears for the necessity of joining those who have no interest in the result of the attack merely because they were parties to the original suit. Our conclusion is that only those persons who have a real, present interest in the judgment attacked are necessary for the attack to be direct.” See also Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup.1966).

In our case the only parties shown to claim any present interest in the 41.06 acres which are the subject of appellant’s bill of review, or whose interests may be directly or materially affected thereby, are the appellees, Muniz and Vale. The trial court erred in holding that all the original parties in Cause No. 2373 are necessary parties.

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


author: MOORE, Justice.

text:
    Carl BLEDSOE, Jr., Appellant, v. Creva Mae YARBOROUGH, Appellee.
    No. 317.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 7, 1967.

      Barnes & Barnes, Robert E. Barnes, Beaumont, for appellant.
    Jack Dies, Lufkin, for appellee.
   MOORE, Justice.

Appellant, Carl Bledsoe, Jr., perfected this appeal from an order overruling his plea of privilege to be sued in Jasper County, the county of his residence. The appel-lee, Creva Mae Yarborough, filed suit against appellant Bledsoe in the District Court of Shelby County, Texas, under the provisions of the Death Statute, Vernon’s Ann.Civ.Stat, Art. 4671, for damages sustained by her as a result of the death of her daughter, Linda Chastine Yarborough, who was killed when the automobile driven by her daughter collided with the automobile driven by the appellant.

In reply to appellee's suit, appellant filed a plea of privilege to be sued in the county of his residence. Appellee subsequently filed her controverting plea in which she sought to hold venue in Shelby County under Subd. 9a, Art. 1995, Vernon’s Ann.Civ. Stat. In her controverting plea, appellee ■adopted the allegations of her second amended original petition alleging that the appellant was guilty of negligence proximately causing the collision and resulting death of her daughter, as follows: (a) in driving his automobile at an excessive rate of speed; (b) in failing to keep a proper lookout; (c) in failing to apply his brakes; and (d) in turning his automobile into the eastbound traffic lane occupied by plaintiff’s daughter. After a hearing, the trial court overruled appellant’s plea of privilege and he perfected this appeal.

The trial court filed' findings of fact and coriclusions of law, finding appellant guilty of “negligence and carelessness” proximately causing the death of Linda Chastine Yarborough and based thereon concluded that venue was properly laid in Shelby County, Texas, under Sec. 9a, Art. 1995, supra. The finding of negligence was of a general nature and was not confined to any specific act of negligence.

The evidence offered by appellee to sustain venue in Shelby County consists of the deposition testimony of the appellant and the testimony of Chester Williford, an ambulance driver. According to appellant’s deposition testimony, the accident occurred on January 9, 1965, on a public highway leading from the City of Nacogdoches to the City of Center, Texas. He testified that he and his wife, traveling in their Thunderbird automobile, had left Nacog-doches at approximately 11:00 A.M. and were going to Center in search of antiques; that shortly after they had passed the town of Martinsville, his wife noticed a well pulley at an abandoned farm home on the left-hand side of the highway. After discussing the matter, they decided that they might be interested in acquiring the well pulley as an antique. He testified that he made a U-turn upon the highway and then proceeded back past the .abandoned house where he and his wife again looked in the direction of the well pulley. After observing it, they decided they were not interested in it and would not stop. He testified that it was a dark and rainy day. Immediately before the collision, he testified that he was traveling on his right-hand side of the highway at a speed of approximately ten miles per hour; that he had previously noticed the deceased’s Falcon automobile approaching him at a distance of approximately 100 yards, but did not notice anything unusual about the movement of the automobile. He further testified that as he traveled along the highway, he was looking at the shoulder on the right-hand side of the road to see if it was safe, considering the dimness of the weather, to pull off on the right-hand side and make another U-turn so that they could continue on their way to Center; that while he was looking at the shoulder, he suddenly heard a noise and looked up and saw the deceased’s automobile sliding toward him sideways in his lane of traffic; that he applied his brakes but did not know whether or not his automobile stopped before the impact. Immediately before the impact, according to his testimony, deceased’s automobile was sliding sideways in his lane of travel and upon impact, the front end of his vehicle struck the right front door of deceased’s automobile. He testified that after the impact, his automobile came to rest upon the shoulder on his right-hand side of the highway and that the deceased’s automobile was in his lane of travel upon the paved portion of the roadway.

Chester Williford, the ambulance driver, in addition to testifying that the accident occurred in Shelby County, testified that on the way to the hospital, appellant made a statement to him with reference to the accident. His testimony in this connection was as follows:

“Q All right sir. I ask you what was that statement?
«* * *
“A Well, he told me that he was an antique collector and he had spotted this old pulley on a well and he went back to see about it and when he looked around or looked up, one or the other, that he discovered this car out of control coming towards him.
“Q Did he say he had been looking back at the well pulley?
“A He said he had been looking for the well pulley.
“Q All right. At the time of the accident, did he say — state whether or not he had been looking at the well pulley at the time of the accident?
“A He said he had gone back to try to find this old well pulley and when he looked up, he saw the car coming towards him out of control.
“Q. All right. But he did say emphatically he was looking at the well pulley?
“A Yes, sir.”

At the conclusion of appellee’s evidence, appellant rested without offering any evidence. Because of the nature of the case, we have attempted hereinabove to set forth fully all the evidence offered by appellee to sustain her burden of proof.

Appellant contends that there is no evidence, or in the alternative the evidence is insufficient, to support the finding of the trial court that he was guiilty of negligence or carelessness proximately causing the collision.

The provisions of Subd. 9a of the venue statute specifically provides that in order for a plaintiff to sustain venue in a county other than defendant’s residence, the plaintiff must prove by a preponderance of the evidence (1) that an act or omission of negligence occurred in the county where the suit was filed; (2) that such act or omission was that of the defendant, in person, or that of his servant or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of plaintiff’s injuries. McDonald, Texas Civil Practice, Vol. 1, Sec. 4.17.S.

The cases under Subd. 9a holding that the plaintiff has the burden of pleading and proving by a preponderance of the evidence each of the foregoing elements are legion. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Calhoun v. Padgett (Tex.Civ.App.), 409 S.W.2d 890.

As we view the record, appellee has wholly failed to present any evidence showing appellant guilty of any act of negligence proximately causing the collision in question. As stated above, there were no witnesses to the accident other than the appellant. Although the record shows that the accident was investigated by patrol officers, the record contains no evidence of any skid marks upon the highway, or any other physical evidence tending to show that the appellant’s automobile had crossed into the deceased’s lane of travel. Nor is there any evidence in the record showing that the accident or any part thereof occurred on appellant’s left-hand side of the highway. The only evidence in the record explaining the way the accident occurred was the testimony of appellant. According to his testimony, at the time of the collision he was on his right-hand side of the highway, traveling at a speed of approximately ten miles per hour. When he first noticed anything out of the ordinary, deceased’s automobile was in his lane of travel. He testified that he immediately applied his brakes. His testimony, though introduced under the adverse party rule, stands uncontradicted and unim-peached. Without his testimony, there is nothing in the record which would explain anything about the occurrence in question. In the absence of circumstances or countervailing proof to the contrary, his testimony will be taken as true. 24 T.J.2d, Sec. 719, p. 383-384; Phenix Dairy v. White (Tex.Civ.App.), 169 S.W.2d 492. As we view his testimony, it fails to raise any issue of negligence, either in traveling at an excessive speed, failing to apply his brakes, or turning his automobile into the eastbound lane of traffic occupied by the deceased. On the contrary, his uncontra-dicted testimony tends to exonerate him of any act of negligence in those respects. This leaves only the question of whether the judgment may be sustained upon appellant’s failure to keep a proper lookout. While appellant’s testimony, together with that of the ambulance driver, would no doubt be sufficient to support the implied finding of negligence in that respect, we have nevertheless concluded that the evidence, as a matter of law, shows that the failure to keep a proper lookout was not a proximate cause of the collision. According to the well-established rule, failure to keep a proper lookout can only be deemed a proximate cause where the keeping of it would have prevented the unfortunate occurrence. Volkmer v. Curlee (Tex.Civ.App.), 261 S.W.2d 870; Taylor v. Brooks (Tex.Civ.App.), 392 S.W.2d 878. As we view the evidence, it conclusively shows that even though appellant had been looking directly at the deceased’s automobile from the time it skidded into his lane of travel until the time of the impact, he would have, nevertheless, been unable to have avoided the collision. If this be true, it follows that appellant’s failure to keep a proper lookout was the cause in fact of the collision and consequently could not have been a proximate cause thereof. For the same reason, it likewise appears that neither the speed of appellant’s vehicle nor his failure to apply the brakes could have been a proximate cause of the collision.

Appellee argues, however, that even though there was no direct evidence of negligence and proximate cause, the judgment is supported by circumstantial evidence. We agree with appellee’s assertion that a cause of action may be established by circumstantial evidence. We also agree that in passing upon the evidence, we must view it in a light most favorable to appellee and discard all evidence to the contrary. Even so, we are constrained to disagree with appellee’s contention in this respect.

Appellee contends that there was sufficient circumstantial evidence to show that shortly before the accident, appellant had passed deceased as she proceeded toward Center. Upon noticing the abandoned house on the left of the highway, he proceeded to make a U-turn and proceeded back to the abandoned house, and upon deciding not to stop, suddenly commenced turning his automobile to his left across the center of the highway preparing to make another U-turn; that upon observing this situation, deceased applied her brakes, causing her automobile to skid and collide with appellant. While it is possible that the accident may have occurred in this manner, our search of the record fails to reveal any evidence of probative force which would support such a theory. Certainly there is nothing in the direct testimony of the appellant indicating that he was driving upon the left-hand side of the highway or was in the act of turning across the highway, nor do the physical facts and circumstances surrounding the scene of the accident so indicate.

To establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing. At all events they must not be equally consistent with the nonexistence of the ultimate fact. Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669; Big Three Welding Equipment Company v. Reeh (Tex.Civ.App.), 301 S.W.2d 504 (1957). At most, the evidence raises no more than a surmise or a suspicion that appellant may have committed some act or omission which caused the deceased to lose control of her automobile. Of course, it goes without saying that a mere speculative conclusion cannot form the basis of a finding of negligence and proximate cause.

We have examined the statement of facts in a light most favorable to the judgment and have indulged every reasonable inference in favor thereof, yet we believe the evidence compels the conclusion that venue cannot be sustained in Shelby County. Accordingly, the judgment is reversed and the cause is ordered transferred to Jasper County, Texas.