author: DUNAGAN, Chief Justice.

text:
    Minnie Eva YELVERTON et vir, Appellants, v. Harry L. BROWN, Appellee.
    No. 256.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 16, 1967.

      B. R. Reeves, Palestine, for appellants.
    McCain, Stanford & Price, E. Tate McCain, Palestine, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought by Harry L. Brown, individually, against Minnie Eva Yelverton and husband, under the Uniform Declaratory Judgment Act seeking a decree from the court in the form of instructions as to the purchase of 147 shares of the corporate stock of H. L. Brown & Associates, Inc. in accordance with the terms of a written contract entered into on or about June 15, 1960, between Harry L. Brown and wife, Doris Brown, and Harry A. Haver-lah, the original incorporators of said corporation.

The trial court entered judgment declaring that the appellee (plaintiff) was entitled to purchase the 147 shares of stock that is the subject of this lawsuit and further declaring the methods and means for the purchase of said stock. Appellants (defendants) have appealed from this judgment.

In June, 1960, the appellee and his wife, Doris M. Brown, and Harry A. Haverlah organized H. L. Brown & Associates, Inc., a private corporation, to engage in the factoring and finance business. On June 15, 1960, being about the date the corporation was organized, appellee, his wife, and Harry A. Haverlah executed an agreement for the stated purpose of providing protection to both appellee and Harry A. Haverlah in the case of the death of either of them by conferring upon each, in the case of the death of the other, an option to purchase the deceased party’s stock, or so much thereof as the optionee so desired. To that end, it was agreed that an annual audit would be made as of the last day of the month prior to the month of which said audit was commenced and that the actual book value of the stock for purposes of the contract would be determined by the applicable audit. The purchase price of any stock so sold under the agreement was to be the book value thereof so determined in the last annual audit prepared prior to the death of the first of said parties.

On organization, appellee became the owner of 152 shares of the stock, his wife one share, and Harry A. Haverlah 147 shares of said corporation, and no transfer of any such stock occurred prior to the death of Harry A. Haverlah. At the time Harry A. Haverlah acquired his stock, he was married to Margaret Haverlah, and the stock became their community property. Doris Brown died on August 16, 1964, and appellee became owner of her one share and independent executor of her estate. Margaret Haverlah died on the 30th day of September, 1964, and appellant, Minnie Yelverton, was made independent executrix of her estate and became owner of her community half of the 147 shares as the sole beneficiary under the terms of her will, subject to the contract rights of appellee; and Harry A. Haverlah died on December 4, 1964, and appellee became independent executor of his estate and the entire estate passed to him as trustee under the will of Harry A. Haverlah. Appellee is not a beneficiary under the terms of the will.

Doris Brown, Margaret Haverlah and Harry A. Haverlah each died testate and the will of each was duly admitted to probate.

None of the capital stock of H. L. Brown & Associates, Inc. has been transferred on the books of the corporation since its original issue. Therefore, the stock on the record of the corporation is still in the name of Harry L. and Doris Brown and Harry A. Haverlah.

Appellee elected to exercise his option under the June 15, 1960 contract to purchase the 147 shares of stock in issue and gave written notice thereof to appellant, Minnie Yelverton, and her attorney. Ap-pellee then filed this suit in the Third Judicial District Court of Anderson County alleging the foregoing facts and that he was entitled by reason thereof to purchase said 147 shares of corporate stock. In view, however, of his relationship, individually, to the estate of Harry A. Haverlah as its independent executor and as owner of the estate as trustee under the will, appel-lee concluded that, for the protection of said estate, he should file this action in the District Court for instructions as to the methods and means to be followed in determining the price to be paid for said stock.

Appellant, Minnie Yelverton, individually and as independent executrix of the estate of Margaret Haverlah, answered by general denial and therein asserted that the 147 shares of stock were the community property of Harry and Margaret Haverlah; that appellant, Minnie Yelverton, was the owner of Margaret Haverlah’s one-half and “that Harry L. Brown is entitled to buy said stock at its reasonable cash market value, and an auditor should be appointed, and is hereby requested by defendants, to audit the books of said corporation for the purpose of reporting to this court the reasonable cash market value of said stock on the date of the death of Margaret Haverlah, deceased, and that this court after a hearing pay to said defendant one-half of the value of such stock.” This constitutes appellants’ entire answer, other than the prayer.

Issues .of law and fact were tried to the court without the aid of a jury. On request of appellants, the court filed its findings of fact and conclusions of law. The record does not contain a statement of facts.

The court found that Harry A. Haverlah did not make the June 15, 1960, agreement in fraud of or for the purpose of defeating the rights of his wife, Margaret Haverlah; that the business affairs of H. L. Brown & Associates, Inc. were conducted on a fiscal year basis ending May 31st of each year; at the conclusion of each year an aduit was made by an independent auditor whose findings were incorporated in the annual statement; that appellee and appellant, Minnie Yelverton, were in disagreement as to the purchase price to be paid by appellee for the 147 shares of stock; that the last annual statement of the corporation preceding the death of both Margaret and Harry A. Haverlah was that for the fiscal year ending May 31, 1964, and that the ap-pellee exercised his option to purchase the 147 shares within a reasonable time after the death of Harry A. Haverlah.

The court concluded that in absence of fraud or intention to defeat the rights of his wife, Margaret, Harry A. Haverlah had the right and power to bind the community interest of his wife in and to the 147 shares; that on the death of Margaret and Harry A. Haverlah, their respective one-half interests in the 147 shares passed to their respective estates, subject to the contract option in favor of appellee; that neither the death of Margaret or Harry A. Haverlah nor the execution by Harry A. Haverlah of his will making appellee independent executor of his estate and passing said estate to appellee as trustee extinguished the option rights of appellee under the June 15, 1960, contract; that the submission by appellee to Minnie Yelverton of his written notice purporting to exercise his option to purchase said 147 shares was effective for that purpose; that the estates of Margaret and Harry A. Haverlah were both obligated to deliver to appellee the 147 shares upon payment into the registry of the court by appellee of the book value of the 147 shares of stock belonging to the corporation as of May 31, 1964, as shown by the. annual audit as of that day.

Appellants’ first contention is that the trial court erred in rendering judgment that the appellee, Harry L. Brown, individually, is entitled to purchase the stock involved in this lawsuit. Their sole argument under this assignment of error is that the purchase of said stock by the appellee is in violation of section 352 of the Probate Code of Texas, V.A.T.S. This Article provides in part as follows: “The personal representative of an estate shall not become the purchaser, directly or indirectly, of any property of the estate sold by him, * * It further provides that in such event any person interested in the estate could make complaint and upon proof, the court administering the estate would set aside the sale.

Appellee, by counter point, contends that appellants are precluded from asserting their first point since it is contrary to an admission in their answer and it does not appear that the issue was raised by the pleadings or otherwise presented to the trial court or tried by the common consent of the parties. We sustain this contention.

Appellants allege in their answer that the appellee is entitled to buy said stock. This allegation constituted a judicial admission which is conclusive against appellants. It is the settled law that it is the general rule that the pleadings in a particular case, for the purpose of use as such in that case, are to be regarded as judicial admissions, rather than just ordinary admissions. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, (Tex.Sup., 1941) ; Hughes v. Fort Worth Nat. Bank, 164 S.W.2d 231, (Tex.Civ.App., Fort Worth, 1942, writ ref.); McCormick v. Stowe Lumber Company, 356 S.W.2d 450, (Tex.Civ.App., Austin, 1962, writ ref., n. r. e.). The only relief sought by appellants was the appointment of an auditor to determine the reasonable cash market value of said stock on the date of the death of Mrs. Haverlah. The court found that the only disagreement between the parties was with respect to the purchase price of the 147 shares of stock. The pleadings of the appellee in the trial court raised no issue about his right to purchase the 147 shares of stock, but invoked the aid of the court only for instructions in respect to the methods and means of effectuating a determination of the full and true value of the 147 shares of stock in controversy by which he may pay therefor the sum of money to which the estate of Harry A. Haverlah and Mrs. Yelverton are justly entitled. Nowhere in the record before this court is it revealed that the provisions of section 352 of the Probate Code were raised in the trial court nor does the findings of fact and conclusions of law made by the court disclose or indicate that issues involving said section of the Probate Code were raised and litigated in the trial court. We find no pleadings raising an issue of appellants’ right to purchase stock in question. To the contrary, the record clearly shows that the appellants in the trial court conceded appellee’s right to buy the stock. The issues involving section 352 of the Probate Code were not raised or litigated by the parties in the trial court. So far as this record shows, this contention was not raised in the trial court. The issue cannot be raised for the first time on appeal. State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 354 S.W.2d 576, (Tex.Sup., 1962); Boatner v. Providence-Washington Ins. Co., 241 S.W. 136, (Tex.Com.App., 1922, opinion adopted); Ayoub v. Herold, 287 S.W.2d 539, (Tex.Civ.App., 1956, writ ref., n. r. e.); Hodge v. Ellis, 277 S.W.2d 900, (Tex.Sup., 1955) ; Clark v. Texaco, Inc., 382 S.W.2d 953, (Tex.Civ.App., Dallas, 1964, writ ref., n. r. e.); Moseley v. Texas and New Orleans Railroad Company, 346 S.W.2d 636, (Tex.Civ.App., Waco, n. r. e.). A reviewing court ordinarily will decline to consider questions not raised in the trial court. Brunson v. Brunson, 372 S.W.2d 761, 764, (Tex.Civ.App., Amarillo, 1963, n. w. h); 4 Tex.Jur. 2d, page 242, Sec. 746 and cases there cited. A case will be tried in the appellate court on the same theory advanced in the trial court. Stacy v. Bridge City Independent School District, 357 S.W.2d 618, (Tex.Civ.App., Beaumont, 1962, n. w. h.).

The Supreme Court of this state in Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 held:

“ * * * The office of a pleading is to define the issues to be tried. It is certainly the general rule that an admission in a pleading, on which a party goes to trial, is taken against him. * * * Finally, it is the rule that parties are restricted in the appellate court to the theory on which the case was tried in the lower court. * * * ”

Appellants next complain that “The trial court erred in refusing appellant the right at her own expense to examine the books of H. L. Brown & Associates, Inc., prior to complying or refusing to comply with the request of H. L. Brown as president of H. L. Brown & Associates, Inc., to purchase the stock at its book value.” We find in appellants’ brief under this point the following statements: “Appellant’s position in this case is that she could not intelligently determine the condition of the corporation financially at the time she became the owner of the stock in the corporation or at the date of the making of the financial statement upon which Appellee bases his right to buy the stock. * * * Appellant takes the position that she is entitled under the common law and the Statutes of the State of Texas to examine the books of the corporation before agreeing to sell the stock to Appellee, or what action would be to her best interest, and that this cause should be reversed and Appellee ordered to permit Appellant, her agents and auditors to examine the books of said corporation, * * ”

Counsel for appellants in his oral argument before this court stated that Mrs. Yelverton does not contend that appellee does not have the right to buy the stock as per the contract, but she wants an audit of the books to ascertain the value thereof before she determines whether to comply with the request of appellee to purchase the stock. It seems to be apparent that appellants desire only to have an examination or audit of the books and records of the corporation to ascertain the reasonable cash market value of said stock before Mrs. Yelverton is required to sell her half of the 147 shares of stock.

At the special request of appellants, the court found as a fact that while appellee, Harry L. Brown, was testifying on the trial of this cause, appellants’ attorney, on cross examination, requested appellee to permit appellant, Minnie Eva Yelverton, at her expense, to examine the books and assets of H. L. Brown & Associates, Inc., which request was denied by the appellee Brown. Insofar as this record discloses, this matter was not pursued further. The court, though requested by appellants, declined to find. as a matter of law that appellants thus became entitled to such examination.

Appellants rely upon Article 2.44 of the Business Corporation Act, V.A.T.S. as authority for their right to examine or have examined the books and records of accounts of the corporation. Section (B) of this article does provide for the right of examination of books, records and accounts of a corporation under certain specified conditions, upon written demand stating the purpose thereof.

The record before us does not reflect that appellants ever made written demand as provided for in Art. 2.44, T.B.C.A., for an examination or audit of the books and records of the corporation. Neither does it show any demand for such examination or audit nor that they were ever refused such examination or audit prior to the trial of this case.

Appellants cite only Texas Infra-Red Radiant Company v. Erwin, 397 S.W.2d 491, (Tex.Civ.App., Eastland, 1965, writ ref., n. r. e.) to support their contention under their second assignment of error. In this suit the complaining party, Mrs. Margaret Erwin, sought a writ of mandamus ordering the defendant corporations, in which she had the beneficial ownership of 10% of the stock, to permit her to inspect their books. As statutory authority for such a writ, she cited Art. 2.44 of the Texas Business Corporation Act.

It has been held in this state that the enforcement of the right of inspection or examination of the books and records of a corporation is by mandamus. Moore v. Rock Creek Oil Corporation, 59 S.W.2d 815, (Tex.Com.App.1933). The court in Texas Infra-Red Radiant Company v. Erwin, supra, also held that mandamus was available remedy to compel corporation to permit beneficial owner of stock to inspect hooks for proper purposes under Art. 2.44 of the Business Corporation Act.

This court has the benefit only of the pleadings, findings of fact and conclusions of law from which to determine the nature of the suit and issue presented to the trial court. A review of this record reveals that this is not a suit seeking a writ of mandamus to examine or audit the books of H. L. Brown & Associates, Inc. We hold that whatever right appellants may have to an examination or audit of the books and records of account of said corporation, upon refusal of a proper demand to permit such examination, their remedy to compel such examination and audit is by mandamus.

The parties throughout their pleadings refer to “the reasonable cash market value of the stock.” From a reading of the June 15, 1960, contract between Harry L. Brown and wife, and Harry A. Haverlah, the validity of which is not contested in this action, we note that it provides: “ * * * The actual book value of the stock of said corporation shall be determined by the most recent financial statement above required, but the purchase price of any stock sold and purchased under this agreement shall be the value thereof as fixed by the last statement prepared prior to the death of the first of the male stockholders to die * * * however, in calculating the purchase price of any stock sold and purchased under this agreement, actual reasonable market value of any automobiles owned by the corporation, office furniture, fixtures, equipment and supplies, reserve accounts and other tangible personal property belonging to the corporation shall be used (rather than book value of such item), but book value as to all other items and assets shall be used. In the event the reasonable cash market value of such particular items mentioned above cannot be agreed upon and determined by the parties to this agreement or their legal representatives, a determination of such reasonable cash market value of such items shall be made by three appraisers, * * *. When such reasonable cash market value of such items particularly mentioned above shall have been determined, such value so arrived at shall be substituted for the book value of such items for the purpose of determining the then value of the stock of the corporation to be sold and purchased.” (Emphasis supplied).

It appears that the instructions to the ap-pellee as set out in the judgment of the trial court directing him as to the proper method and means for determining the purchase price of the 147 shares of stock conform to these provisions of the said cpn-tract.

For the reasons above stated, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    The PHOENIX INSURANCE COMPANY, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellees.
    No. 263.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 23, 1967.

      V. B. Proctor, of Proctor, Houchins, Anderson, Smith & Null, Victoria, for appellant.
    Wm. S. Fly, of Fly, Cory, Moeller & Stevenson, Victoria, for appellees.
   OPINION

GREEN, Chief Justice.

This appeal is from a declaratory judgment defining the respective rights and liabilities of appellant and appellee under their automobile policies with reference to the accident in question. Particularly involved is the “omnibus clause” in appellant’s policy, and its application to the fact situation of this case.

The material facts in evidence are undisputed. At all times relevant here, appellant Phoenix Insurance Company was the insurer of a 1964 Model Ford Falcon Club Wagon owned by the named insured Ralph Gilster, Jr. On or about June 25, 1964, Father Wallace J. Stiles, assistant pastor and Youth Director of St. Mary’s Church, Victoria, Texas, contacted Gilster for the purpose of borrowing this car on June 27th to return to their homes in Victoria six girls who were attending a Summer School of Catholic Action for Youth in Corpus Christi. Borrowing the car and returning the girls to their homes in Victoria was in line with Father Stiles’ duties as Youth Director, a fact which Gilster well knew. He had on a number of other occasions borrowed Gilster’s car for out of town trips in connection with such duties. Gils-ter knew the purpose for which Father Stiles wanted the car, and readily agreed with his request. The distance from Victoria to Corpus Christi and return is a total of 180 miles. Nothing was said between the two as to who would drive the car during the trip, nor had anything been said as to who should drive on any of the other occasions that Gilster had let Father Stiles use the car in his church work. Gilster testified that as a matter of fact, he didn’t give the matter (of who would drive) any thought; though he further stated that he considered that Father Stiles would be the one to take the car, use it, and bring it back. The words “use” and “borrow” were the te,rms used in the conversation between Gilster and Stiles, and no reference was made by either party as to who would actually operate the car.

On June 25th, two days before the trip to Corpus Christi, Father Stiles asked James DeLane to drive on this trip. It was agreed by both of the parties that Gilster had not given express permission for James to drive; but Father Stiles after testifying about the former times he had borrowed Gilster’s car for such trips, on which occasions some one other than himself had driven, stated that he believed it all right that DeLane drive. James, 16 years of age, was president of the Church’s Catholic Youth Organization (C.Y.O.). He had obtained his drivers’ license two years before this, and frequently on these Church trips drove for Father Stiles, who considered him a very good and careful driver. On the morning of June 27th, James went to the Gilster residence, got the car keys from a servant and drove the car to the Rectory where he picked up Father Stiles, and they proceeded to Corpus Christi. They got the six girls and, with James DeLane driving, went back to Victoria. Father Stiles then instructed James to let him off at the Rectory where he had some church duties to perform, and to take the girls to their homes and then to return the car to Gils-ter’s home. While the girls were being delivered to their homes, an accident occurred between the car driven by James and one driven by Sandra Lou Barr and owned by her father. James had not deviated from his route at any time, and at the time of the accident was engaged in carrying out the instructions of Father Stiles, and in executing the purpose for which the car had been borrowed from Gilster. At a meeting between Gilster, Father Stiles and James DeLane in Gilster’s office two or three days after the accident Gilster made no adverse comment on the fact that James was driving at the time of the accident.

Sandra Lou Barr and her father have employed a lawyer, and are asserting claims for damages against James DeLane. The issue to be determined here is whether the evidence sufficiently supports the trial court’s findings and conclusions that under the provisions of Gilster’s automoble policy with appellant, James DeLane was an “insured” as that term is defined in the omnibus clause. Appellant denies that James was protected as an added insured under its policy.

The pertinent portion of the “omnibus clause” of Texas Standard Automobile Endorsement made a part of appellant’s policy covering the Gilster car reads as follows:

“D. With respect to such insurance as is afforded by the policy for Bodily Injury Liability and Property Damage Liability arising out of the ownership, maintenance or use of any automoble, the unqualified word ‘insured’ also includes:
“1. With respect to an owned automobile, the spouse, and any other person using such automobile with the permission of the named insured or his spouse, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, * * * ”

Appellee Allstate Insurance Company had issued an automobile policy covering two family cars belonging to John DeLane, the father of James DeLane, which, in addition to other protection, provided coverage for the operation of a non-owned vehicle by John DeLane or the members of his family provided that the use thereof was with the permission of the owner, or was reasonably believed to be with such permission, and is within the scope of such permission, and which provided further that such coverage as to a non-owned automobile shall be excess insurance over any other valid and collectible insurance. Allstate did not deny its responsibility to James DeLane, but contended that its liability was secondary to that of Phoenix, and should be considered only as excess insurance to the policy limits of the Phoenix policy.

At the request of appellant, the trial court made and filed Findings of Fact and Conclusions of Law, as follows:

“FINDINGS OF FACT
“1. That Plaintiff, The Phoenix Insurance Company, issued its Policy No. CC534S3 covering the vehicle involved in the collision, which said policy was in effect on the date of the accident made the basis of this suit.
“2. That Allstate Insurance Company had issued its Policy of Insurance No. 29847607 covering JOHN DeLane and any members of his household in the driving of the automobile made the subject of the policy of insurance, and any other non-owned automobile which was being driven by John DeLane or his family while such non-owned automobile was being operated with the permission, or reasonably believed to be with the permission of the owner.
“3. That the policy of insurance issued by The Phoenix Insurance Company insured RALPH GILSTER, JR. and any other person operating the insured vehicle with the permission of said Ralph Gilster, Jr.
“4. That JAMES LEE DeLANE was a member of the household of John DeLane.
“5. That Ralph Gilster, J. gave express permission to FATHER WALLACE J. STILES to operate the Gilster vehicle.
“6. That permission to use the vehicle was for the purpose of Father Stiles in his capacity as Assistant Pastor of SAINT MARY’S CATHOLIC CHURCH to go to Corpus Christi, Texas, and return with some students.
“7. That at the time of the accident in question the automobile was being used for the purpose for which it was borrowed.
“8. That Father Wallace J. Stiles in his capacity as Assistant Pastor had implied permission to delegate another party to drive the vehicle.
“9. That Father Stiles did delegate the driving of the vehicle to James Lee DeLane.
“10. That the loaning of said automobile by Ralph Gilster Jr. was not conditioned upon Father Stiles being the only person to drive said vehicle.
“11. That James Lee DeLane had implied permission to use said automobile.
“12. That Ralph Gilster Jr. should have known that Father Stiles in his capacity as Assistant Pastor would likely delegate someone else to drive the vehicle under his general supervision.”
"CONCLUSIONS OF LA W
“1. I conclude as- a matter law, that the policy of insurance issued by The Phoenix Insurance Company is of primary coverage in connection with the accident made the basis of this suit.
“2. The driving of the vehicle by James Lee DeLane was with the implied permission of the owner, Ralph Gilster Jr. and that its operation was within the scope of the use for which it was loaned.
“3. That the policy of insurance ^issued by Allstate Insurance Company is secondary coverage in connection with the accident made the basis of this suit.”

From a judgment declaring the respective rights of the two insurance companies contrary to the contentions of Phoenix, and in accordance with the findings and conclusions reached by the trial court, Phoenix has appealed. By its fifteen points of error, it raises questions of legal and factual insufficiency of the evidence to support the court’s findings Nos. 8, 10, 11, and 12, (Garza v. Alviar, Tex.Sup.Ct., 395 S.W.2d 821) and states that the court erred in each of his conclusions, of law.

There has been much litigation on the subject of the omnibus clause of an automobile insurance policy. See lengthy annotation in 4 A.L.R.3rd, p. 10 et seq., entitled Omnibus Clause of Automobile Liability Policy As Covering Accidents Caused By Third Person Who Is Using Car With Consent Of Permittee of Named Insured. The basic purpose of this provision is to provide liability coverage for the named insured, his family, and any one using the car with the express or implied permission of the named insured. While the general rule seems to be that the mere permission by the named insured to another to use the insured automobile does not alone authorize the permittee to delegate his right of user to a third person so as to entitle the latter to protection under the omnibus clause, it is well settled that the named insured’s permission to a second permittee need not be express, but may be implied from the broad nature of the initial permission, or from the conduct of the parties and the attendant facts and circumstances. A factual determination as to the existence of such implied authority is usually necessary. 4 A.L.R. 3rd, supra, § 2, p. 17; § 3(a) pp. 23, et seq., and authorities cited; 7 Appleman, Insurance Law and Practice, Chapter 185, Named and Additional Insureds, § 4365; 7 Am.Jur. 2d § 116, p. 431; United Services Automobile Ass’n v. Zeller, Tex.Civ.App., 135 S.W.2d 161, 164, writ dism.corr.judg.; United Services Automobile Ass’n v. Russom, 5 Cir., 241 F.2d 296, citing with approval the Zeller case, and many other authorities cited in the texts cited above. Implied permission by the named insured if established is as effective to extend the coverage of the omnibus clause as that which is formally conferred. 4 A.L.R.3rd, § 3(a), p. 28; United Services Automobile Ass’n v. Russom, supra. While, as shown in these texts, there is considerable lack of agreement in the decisions of the courts of the various jurisdictions construing the omnibus clause and applying it to the fact situations presented, we feel that we should be guided by the rule of implied permission as stated above.

In our opinion, the trial court was justified by the evidence in finding that Father Stiles had the implied consent of Gilster to permit another to drive the car on this occasion, and that the driving of the car by James DeLane at the time of the accident was within the purview of such implied permission. United Services Automobile Ass’n v. Zeller, Tex.Civ.App., supra. Gilster had on several other instances loaned the car for use by Father Stiles in connection with his work with the Catholic Youth Organization, and had never expressed any limitation or any particular interest as to who should actually drive the car on such occasions. By his very silence the trial court could reasonably assume that, by reason of their past dealings and the circumstances of the case, Gilster had confidence in the good priest’s discretion and judgment as to such matter, and realized or should have realized that he might delegate the driving to some other competent person. This court can judicially note that it is not unusual for members and friends of church organizations to loan their cars on special occasions for use by the organization or its leader for out of town trips without designating who shall drive. We bear in mind that the car was loaned for the use of Father Stiles in his church and Youth Director capacity, and “use” is the term used in the omnibus clause.

On the question of implied permission, 7 Am.Jur.2d, Automobile Insurance, § 116, p. 431, states:

“It has frequently been stated that, as a general rule, the permission given by the named insured to another to use the named insured’s car does not authorize the permittee to allow a third party to use the car, and that if the permittee does allow a second permittee to use the car, such use is not ‘with the permission of the named insured’ as those words are used in the omnibus clause. However, the effect of this strict rule has been greatly diluted by reason of the fact that many of the courts recognizing the rule have substantially modified it by stating that in every case where the first permittee permits another to use the insured automobile, a factual determination must be made whether the initial grant of permission was broad enough to include an implied grant to the permittee of authority to give another use of the automobile and thus render the latter an additional insured under the omnibus clause. * * * A rule distenct from the above, though not in conflict with it, is that where permission has been granted for a specific use, the permittee may have implied authority to delegate permission, but that such authority is restricted to granting permission for the same use for which the initial permission was given.”

We do not hold that Father Stiles had implied authority to select a driver who had no legal drivers’ license, or who was intoxicated or otherwise incompetent in law to operate the car, or who was, on the occasion, using the car for his own personal interests as distinguished from the purpose for which the car was loaned. Such a case is not presented here. James DeLane, president of the Catholic Youth Organization, had on prior occasions driven other cars borrowed by Father Stiles for out of town trips in connection with church work, and Father Stiles expressed complete confidence in him and his driving. In fact, the Father testified that he was afraid to drive this particular car and felt safer with some one else driving.

Findings of Fact Nos. 6 and 7 are based on undisputed evidence, and are not objected to or attacked by appellant. With reference to such findings, and to the second clause of the second Conclusion of Law, we quote as follows from 7 Am.Jur.2d, § 117, p. 435:

“The ‘general rule’ that a permittee may not allow a third party to ‘use’ the named insured’s car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second per-mittee at the time of the accident, or (2) the second permittee, in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permittee is ‘operating’ the car for the ‘use’ of the first permittee and that such ‘use’ is within the coverage of the omnibus clause. * * *
“As to the second of the situations mentioned above — that is, where the second permittee, in using the automobile, is serving some purpose of the original per-mittee — the rule generally followed is that the initial permission given by the named insured to the original permittee includes by implication the authority to delegate the operation of the automobile to an agent or servant where the latter operates the car in the interests of the original permittee or for their mutual purposes. * * * ” Citing many authorities.

See National Farmers Union Property & Casualty Company v. Lukins, 8th Cir., 329 F.2d 564; Maryland Casualty Company v. Marshbank, 3rd Cir., 226 F.2d 637; Webb v. Grimm, 116 Ohio App. 63, 186 N.E.2d 739; Allstate Insurance Company v. Mathis, 232 Ark. 484, 339 S.W.2d 132; Capece v. Allstate Insurance Company v. State Farm Mutual Automobile Ins. Co., 86 N.J.Super. 462, 207 A.2d 207; Buckelew v. Roy, La.App., 168 So.2d 831; Aetna Life Insurance Company v. Chandler, 89 N.H. 95, 193 A. 233.

The text proceeds to state that while this is the general rule, there are a number of cases holding to the contrary.

We feel that the rule generally followed as stated above in the second situation mentioned is particularly applicable to the facts of this case, and should be followed. During this entire trip, from the time when the car was first picked up by James DeLane to and including the occurrence of the accident, Father Stiles in his capacity as assistant pastor and Youth Director was “using” the car for the purpose for which it had been loaned by the named insured. Although he was not in the car at the time of the accident, it was still being used by him for his benefit and under his express instructions. .

By reason of the implied authority in Father Stiles to have another drive the car, and also because at the time of the accident the automobile was being used for the very purpose for which it was borrowed, and was serving a purpose beneficial to the first permittee, we hold that James DeLane was, under the facts of this case, an additional “insured” within the provisions of the omnibus clause of appellant’s policy. All of appellant’s points of error are overruled.

Appellant cites as supporting its contention that DeLane was not an added insured the case of Globe Indemnity Company v. French, Tex.Civ.App.(1964), 382 S.W.2d 771, writ ref. n. r. e. Three college students were there involved. Rockwell, the named insured, loaned his automobile to McCauley, a friend, to use in attending a dance, -knowing that McCauley was double-dating with French. While they were at the dance French, allegedly with McCauley’s permission, though this is disputed, used the car to take his date to her dormitory within the time required by dormitory rules. While on the way back to the dance, French was involved in a car accident. Although nothing was said by Rockwell about French driving, there was no express limitation that only McCauley was to drive. The policy in question covered Rockwell as the named insured, and “any person using such automobile, provided the actual use thereof is with the permission of the named insured.” The Court of Civil Appeals, in reversing and rendering the trial court’s judgment, held that French was using the car without the express or implied consent of Rockwell, and was not covered by the above quoted provision of the policy.

While we do not take issue with the decision in French, we do believe that it is not applicable or controlling in the fact situation in our case. As stated in the above quotes from 4 A.L.R.3rd and 7 Am.Jur.2d, supra, in each case a factual determination must be made as to whether the initial grant of permission was broad enough, under all of the surrounding facts and circumstances, to include an implied grant to the first permittee to give another authority to operate the automobile. In' our case the evidence was that the car was loaned to Father Stiles, not as a private individual on a private mission, but as assistant pastor and Youth Director of his church performing duties as such. It had been loaned to him in such official position under similar circumstances on a number of other occasions. James DeLane was not “using” the car on a private mission of his own. He as president of the C.Y.O. was asked by Father Stiles as Youth Director to drive the car while it was being “used” in connection with the director’s duties. Father Stiles was still “using” the car in such duties and for the purpose for which it was borrowed even after he got out of it at the Rectory. Other facts and circumstances which distinguish the fact situation of this case from French have already been set out in this opinion. The trial court’s findings were based on the facts and circumstances in evidence, as well as the reasonable and legitimate conclusions to be drawn therefrom, and were supported by sufficient evidence legally and factually.

Since James DeLane was covered as an additional insured under the provisions of the omnibus clause of appellant’s policy, the trial court properly concluded that appellant’s insurance policy was primary coverage in the accident in question, and that appellee’s policy was secondary coverage.

Judgment affirmed.

       Emphasis ours.


author: O’QUINN, Justice.

text:
    Doris Ann SKRABANEK, Appellant, v. Jack RITTER, Sr., Appellee.
    No. 11464.
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1967.
    Rehearing Denied March 15, 1967.

      Benjamin J. Cuba, Temple, for appellant.
    Brown, Daniel & Brown, John B. Daniel, Jr., Temple, for appellee.
   O’QUINN, Justice.

This is a suit for personal injury involving application of the Texas automobile guest statute. The question is whether the statute applies to accidents occurring entirely on private property and not on a public highway.

Appellant Doris Ann Skrabanek and her husband in November, 1963, were guests of appellee Jack Ritter, Sr., and wife as the party of four set out on a hunting trip. They entered appellee’s motor vehicle, an enclosed Jeepster, parked in a covered carport adjacent to quarters occupied by ap-pellee and his wife in a motor hotel at Lam-pasas. Appellee was the driver, and appellant sat in the back seat with her husband behind appellee’s wife sitting in the front seat.

The group planned to drive from the motor hotel along the highway, upon which the hotel fronted, a distance of several miles to a ranch where they intended to hunt deer. It was around six o’clock in the morning and still dark as they entered the vehicle. Appellee backed the vehicle a short distance out of the carport, preparatory to turning and driving about 160 to 180 feet out to the highway, and struck a tree growing in the motor hotel driveway with the rear of the vehicle.

The impact threw appellant's glasses backwards over her head into the space between the back seat and the spare tire and momentarily stunned her. The front seat came loose and glided back on appellant’s foot and she was thrown forward in her seat.

Appellant being stunned did not at first respond to questions from others in the party as to whether she was hurt, but then appeared to recover from the shock and left the vehicle, along with the other members of the party, to examine the vehicle for damage. All four persons re-entered the ve-hide, and appellee drove them to the ranch, where they hunted until noon and returned to the motor hotel.

Appellant experienced pain and stiffness ■during the day and next day saw a doctor. Later, early in 1965, she was hospitalized and had surgery on her spine.

Appellant and her husband were divorced in 1964 and appellant brought this suit as a feme sole for personal injuries arising out of the accident in the motor hotel driveway.

Appellee filed motion for summary judgment contending appellant had not pleaded gross negligence and could not recover for ordinary negligence because of the guest statute. The District Court heard the motion on pleadings and depositions of the parties and arguments of counsel and entered judgment for appellee.

That appellee was the host driver and appellant was a guest without payment for transportation is not in issue. The only issue is whether appellee is entitled to the benefits of the automobile guest statute denying recovery by appellant without alleging and proving that the accident was intentional or caused by appellee’s heedlessness or reckless disregard of the rights of others. Article 6701b, Sec. 1, Vernon’s Ann.Civ.St.

It is undisputed that the accident occurred wholly within the motor hotel property at the outset of the journey and before the vehicle had reached the highway, and that the accident neither originated nor ended on a public highway or street.

Appellant relies upon the statute itself and contends that an accident on private property is not covered by this law, but that to come under the statute an accident must have occurred on a public highway.

Section 1 of Article 6701b reads:

“No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.” (Emphasis supplied.)

Appellee contends that whether the owner or operator of a motor vehicle in which a guest is injured is entitled to benefits of the guest statute depends upon whether the injury occurred in the course of carrying out the gratuitous transportation the owner or operator had assumed, and that the statute does not limit its applicability to accidents on public highways or streets.

No Texas court has construed the guest statute where applicability of the statute depended solely upon the place of occurrence under facts showing that all events relating to the accident happened on private property. In several cases the courts have considered facts showing that the vehicle left the road and hit a tree, went off the highway and was wrecked, or the driver left the highway and drove into a field to avoid turning over. Rice v. Schiller, Tex.Civ.App., Dallas, 241 S.W.2d 330 (writ granted on different point, 151 Tex. 116, 246 S.W.2d 607); Nichols v. Musgrave, Tex.Civ.App., Texarkana, 285 S.W.2d 397 (no writ) ; Rice v. Simmons, Tex.Civ.App., Amarillo, 356 S.W.2d 206 (no writ). In each case the host and guest relationship obtained during transportation on a highway where the accident had its origin.

The Texas guest statute was enacted in 1931 (Acts 1931, 42nd Leg., p. 370, ch. 225) and has not been amended by the Legislature. Although it has been stated that the Texas law is a copy of the Connecticut guest statute, (Henry v. Henson, Tex.Civ.App., Texarkana, 174 S.W.2d 270, 274 (writ ref.); Fly v. Swink, 17 Tenn.App. 627, 69 S.W.2d 902, 904), this is true only in that both statutes change the same common law rule of liability. A significant difference between the Connecticut statute and the Texas statute is omission from the Connecticut law of any reference to transportation on public highways. (Conn.Gen.Stat. 1930, Sec. 1628; Art. 6701b, Vernon’s Ann. Tex.Civ.St.)

In construing a statute the courts apply the fundamental rule that when the legislative intent is ascertained, it is the law. Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S.W. 575; Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403; Asa S. Agar, Inc. v. Texas Underwriters, Tex.Civ.App., San Antonio, 129 S.W.2d 374 (writ ref.). The legislative intent as ascertained by the courts is derived from the law itself enacted by the Legislature. Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037.

The language of the Texas guest statute is clear and unambiguous in providing that “No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages * * ” unless the accident was intentional or caused by heedlessness or reckless disregard on the part of the owner or operator. (Art. 6701b, sec. 1) The clauses “transported over the public highways” and “without payment for such transportation” cannot be ignored or their meaning held without significance. If the Texas Legislature did copy the Connecticut Statute, as has been said, an important and meaningful difference lies in the addition to the Texas law of these two clauses.

American Jurisprudence states the general rule that:

“In the absence of language in the statutes to indicate any intention to restrict their operation to the public highways, guest statutes are applicable where the motor vehicle in which the guest was being transported was, at the crucial time, being operated on a private way or private property.” 8 Am.Jur.2d, sec. 474, p. 39. (Emphasis supplied.)

In support of the rule as stated, cases are cited from Florida, Ohio, Washington, and Iowa. The guest statute in each of these states is similar to the Connecticut law in that transportation on public highways is not specified. The language of the Iowa statute is typical:

“The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.” Iowa Code, ICA, sec. 321.494.

Under the Ohio statute, (Ohio Gen.Code, sec. 6308-6), with language almost identical with the Iowa law, the guest statute has been construed to be applicable to an accident on a United States air base (Kitchens v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906, 37 Ohio Ops. 200) and to an accident in a private parking garage (Kilgore v. U-Drive-It Co., 149 Ohio St. 505, 79 N.E.2d 908, 37 Ohio Ops. 202).

The California guest statute compares with the Texas statute. Where the Texas statute provides that “No person transported over the public highways of this State” the California law reads “No person who as a guest accepts a ride in any vehicle upon a highway.” In addition, the Texas statute employs the language “without payment for such transportation” which is similar to the California clause “without giving compensation for such ride.” (Article 6701b, Sec. 1, Vernon’s Ann.Tex.St; Cal.Vehicle Code, sec. 403.)

Prior to 1935 the California guest statute provided that the guest must have accepted a ride in a vehicle “moving upon any of the public highways.” Cal.Stats.1929, ch. 787, sec. 1, p. 1580. In 1935 the statute was amended to remove the words “moving upon any of the public highways” and insert “in any vehicle upon a highway.” Cal. Vehicle Code, sec. 403.

The Supreme Court of California in 1956 held that by the 1935 amendment “the Legislature intended to extend its scope to non-moving vehicles.” Boyd v. Cress, 46 Cal.2d 164, 293 P.2d 37. The Court in that case held the guest was no longer “so riding” in the “vehicle upon a highway” because he had left the vehicle, and said all terms of the statute must be met before the guest statute arises. While the California courts have not construed in the statute the language “in any vehicle upon a highway,” with reference to whether “highway” includes private drives and other private property, the courts apparently assume the statute covers only accidents occurring on highways.

The Supreme Court of California in 1940 declined to follow a Connecticut decision because the Connecticut statute “did not use the phrase 'in a vehicle moving on a public highway.’ ” Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729, 732, referring to Nemoitin v. Berger, 111 Conn. 88, 149 A. 233.

In the Boyd case, supra, the court pointed out that the passenger “unquestionably accepted the ride as a guest in a vehicle upon a highway as the statute contemplates. But it does not follow that he suffered the injury ‘during such ride.’ ” A California appellate court in 1940 rejected a group of cases as not in point because the negligence arose before or after the guest relationship, or the relationship was never contemplated, or “the vehicle was not ‘upon a highway’ and ‘during such ride.’ ” Frankenstein v. House, 41 Cal.App.2d 813, 107 P.2d 624, 626.

Decisions from jurisdictions in which the guest statute makes no reference to transportation on public highways or to riding in vehicles upon a highway have no value in construing a guest statute such as Texas or California on the question of applicability of the statute to accidents occurring on private property.

We hold that Article 6701b, section 1, was intended by the Legislature to apply to accidents connected with transportation of persons over the public highways of this State, and not to accidents occurring wholly within the limits of private property.

Appellee has stressed the fact that the guest relationship began with intent formed in the minds of the parties and by the start of the journey, and contends that this would have satisfied the statute if the parties had never left the hotel driveway.

We do not agree. Application of the statute must be determined from what occurred before the parties reached the highway and while they were still on private property, regardless of intent. The statute became applicable when the vehicle entered the highway, not before.

In many parts of Texas hunting parties may travel several miles after leaving camp or ranch headquarters before reaching a highway. Yet the parties may intend after hunting part of the day to get on the highway and drive to another pasture. The fact the parties have formed such intent and are driving toward the highway cannot under the language of the statute place their relationship under the statute, which by its own language limits the relationship to persons “transported over the public highways of this State.”

Several miles or several hours, or both, might intervene in many situations between start of the journey by the host and his guest and the place and time the guest may be transported over the public highways. Neither the intention of the parties, nor shortness or prolongation of time or distance, between the beginning of the journey on private property and its attaining the highway, will determine application of the statute. Intent of the parties, however clear, and utmost brevity of time and distance, between start of the journey and entry on the highway, will not invoke the statute for that part of the journey on private property before entering the highway.

To hold otherwise would require the Court to ignore the language of the statute and the facts surrounding its adoption tending to show the intent of the Texas Legislature. The Connecticut statute when copied into Texas law received two additional clauses limiting its application to persons “transported over the public highways,” and this result is proclaimed in the caption of House Bill 763 describing the bill. The caption reads:

“An Act to provide that no person transported by the owner or operator of a motor vehicle over the highways of this State as the guest of such owner or operator and without pay, shall have a cause of action for injury or death in case of accident, unless such accident shall have been intentional or heedless, or reckless; providing exceptions, and declaring an emergency.” Acts 1931, 42nd Leg., p. 379, ch. 225. (Emphasis supplied.)

Appellee, in support of the contention that the statute is not limited in its application to accidents on public highways, cites decisions holding that “public highways” have been held to include public streets. Authority is also available to support the view that “public highways” also include public roads, public alleys, and other kinds of public ways. It does not follow that “public highways” will include private roads, private driveways, and other private property, as distinguished from travel ways generally open to the public.

However harsh or however limited in application a statute may appear under specific facts, it cannot be rewritten by the courts. It is the duty of the courts to administer laws as they are found and not to make law. To do otherwise is to assume functions that pertain solely to the legislature. Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15 L.R.A. 262; Farmers & Mechanics National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120.

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

Reversed and remanded.


author: CADENA, Justice.

text:
    Rosa G. CORTEZ, a Feme Sole, Appellant, v. Miguel MASCARRO, Appellee.
    No. 14561.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 15, 1967.

      Henry Beltran, San Antonio, for appellant.
    Michael Rizik, Phillip Palmer, San Antonio, for appellee.
   CADENA, Justice.

This is a suit to recover for damages to-an automobile resulting from a collision involving the vehicles of plaintiff, Miguel Mascarro, and defendant, Rosa G. Cortez. Defendant appeals from a judgment in favor of plaintiff in the amount of $496.54.

The sole point urged by defendant is that there is no evidence concerning the difference in market value of plaintiff’s automobile before and after the collision. The only testimony on the question of value came from plaintiff who, after stating that he was familiar with the value of his 1961 Ford automobile, said that its value immediately before the collision was $1,000.00, while its value immediately after the accident was $500.00. Defendant did not cross-examine plaintiff, and her complaint is based on the fact that plaintiff testified, during the. course of direct examination, that his knowledge was based entirely on information gained by reading the newspapers and from talking to his friends who had purchased cars.

The general rule is that anyone familiar with the value of the thing in question is competent to give his opinion as to value. In the absence of a request for voir dire examination, the competency of the witness is established by his statement that he knows the value of the article in question. 2 McCormick, Texas Law of Evidence, § 1422, p. 260 (1956). The strength or weakness of the qualifications of the witness is merely a factor to be considered in weighing his testimony. Johnson v. Egert, 233 S.W.2d 958 (Tex.Civ.App., 1950, writ ref’d, n. r. e.).

Where the issue relates to the value of chattels, the test determining competency is liberally applied, with few attempts to lay down detailed tests, and this liberality is increased where the witness is also the owner of the article in question. Thus, it has been suggested by an eminent authority that the owner of a chattel, “whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth,” leaving the weight of his testimony to be determined by the trier of fact. 3 Wigmore, Evidence, § 716, p. 48 (1940). In Hillin v. Hagler, 286 S.W.2d 661, 662 (Tex.Civ.App.1956, no writ), the Court pointed out: “It has long been recognized that the owner of such property will be permitted to testify to his opinion of its value though he may be unable to qualify himself as such a witness to like property belonging to another. It is left for the defendant, against whom a judgment for damages is sought, to attack the testimony by cross-examination of the owner, or to rebut it through the testimony of witnesses.”

It is well settled that the qualification of a witness to testify on the question of value is primarily to be determined by the trial court, and the ruling of the trial judge will not be disturbed on appeal unless it is so clearly wrong as to show an abuse of discretion. Slack v. Magee Heirs, 252 S.W.2d 274 (Tex.Civ.App., 1952, aff’d, 152 Tex. 427, 258 S.W.2d 797). The fact that the asserted knowledge of the witness is based on information furnished him by others does not deprive his testimony of probative force. Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App., 1963, no writ).

In view of the liberal rules applied in cases of this nature, we cannot say that the trial court abused its discretion in receiving the plaintiff’s value testimony and in basing its judgment thereon. Since defendant’s sole point is a “no evidence” point, the judgment of the trial court must be affirmed.


author: PER CURIAM.

text:
    Paul N. WHITT, Appellant, v. Harry HARTGRAVES et al., Appellees.
    Mo. No. A 1479.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1967.
    Rehearing Denied Feb. 23, 1967.
    Pfeiffer & Gittinger, San Antonio, for appellant.
    James R. Warncke, F. Nolan Welmaker, San Antonio, for appellees.
   PER CURIAM.

Appellant, Paul N. Whitt, filed his motion for an extension of thirty days within which to file his transcript and statement of facts because of press of business of the court reporter. This motion has been contested by appellees, Harry Hartgraves et al., on the ground that good cause has not been shown. Final judgment was entered in this cause on November 9, 1966, and this motion was filed on January 16, 1967, same being the sixty-eighth day after entry of judgment.

Rule 386, Texas Rules of Civil Procedure, requires the appellant to “file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment * * *; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.” (Emphasis added.)

Rule 376, T.R.C.P., requires the appellant to promptly request his transcript and Rule 377, supra, requires the same with reference to the statement of facts. Furthermore, Rule 386, supra, contemplates that appellant will use due diligence in preparing and filing the record. Dellerman v. Trager, Tex.Civ.App., 327 S.W.2d 667, writ dism’d. The affidavits filed herein show that appellant did not request the statement of facts until January 5, 1967, and did not request the transcript until Monday, January 9, 1967. No explanation is given by appellant for his delay in requesting either the statement of facts or the transcript. The record does not show when the transcript was completed.

The burden is upon appellant to show by sworn statement that “good cause” existed during the sixty-day period allowed by Rule 386, why the record could not have been filed within that period. Here the contrary is shown, in that the court reporter’s affidavit states that if the statement of facts would have been requested as late as January 1, 1967 (the 53rd day), he could have timely completed the statement of facts.

The provisions of Rule 386, supra, are mandatory and jurisdictional and- must be complied with in order to invoke appellate jurisdiction. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) ; Consolidated Casualty Ins. Co. v. Wade, Tex.Civ.App., 373 S.W.2d 841, writ dism’d. Good cause has not been shown for appellant’s delay in requesting the transcript and statement of facts. Wigley v. Taylor, 393 S.W.2d 170 (Tex.Sup.1965); Williams v. Williams, Tex.Civ.App., 392 S.W.2d 539, no writ; Dellerman v. Trager, supra; Harrison v. Benavides, Tex.Civ.App., 327 S.W.2d 610, no writ.

The motion for extension of time is denied.

On Motion for Rehearing.


author: KLINGEMAN, Justice.

text:
    Judy Ann Hausman CALLAHAN, Individually and as Next Friend of Marilyn Sue Hausman, Appellants, v. Louis W. LIPSCOMB, Temporary Administrator of the Estate of Mae H. Hausman, Deceased, Appellee.
    No. 14557.
    Court of Civil Appeals of Texas San Antonio.
    Feb. 15, 1967.
    Rehearing Denied March 15, 1967.

      Foster, Lewis, Langley, Gardner & Hawn, San Antonio, for appellants.
    H. Gordon Davis, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This is an appeal from the order of the trial court granting a temporary injunction restraining appellants from (1) conveying, selling, or in any way encumbering, or permitting the conveyance, sale or encumbrance of any property belonging to Pobrecito, Inc., or withdrawing any money from any bank account thereof; (2) disposing of any real or personal property situated at 625 Morn-ingside Drive, San Antonio, Texas; (3) permitting the sale or transfer of any capital stock of Pobrecito, Inc., or the change of the capital structure thereof. Such order of the court was entered on July 12, 1966, a period of more than six months prior to the hearing on this appeal. Ap-pellee is the duly appointed and acting temporary administrator of the estate of Mae H. Hausman, deceased, and appellants are daughters of Mae H. Hausman and Monroe E. Hausman. It appears from the record that appellee was appointed temporary administrator of the estate of Mae H. Hausman until final determination of a pending will contest filed by appellants to an application to probate the will of Mae H. Hausman filed by Mae Janet Gunnell Hamilton, another daughter of Mae H. Hausman, and a beneficiary and independent executrix under such will. Appellee alleged in his sworn petition that appellants had in their possession or control various properties of the estate of Mae H. Haus-man, and asked that appellants be restrained from making any disposition of any of such property, pending adjudication of the rights and entitlement of the estate thereto, so as to prevent irreparable injury and loss to the beneficiaries of said estate. Appellants denied that they had in their possession or control any of the property of such estate, and contended that the granting of a temporary injunction would destroy the right of appellants to carry on their own affairs with their own property.

In reviewing an order granting a temporary injunction, the sole function of the appellate court is to determine whether the trial court clearly abused its discretion in granting such injunction; an appellate court has no independent discretion and may not substitute its discretion for that of the trial court. The trial court has broad discretion in determining whether to issue a temporary injunction to preserve the rights of parties pending final trial of the case on the merits, and where such discretion is exercised the trial court order should not be disturbed on appeal, unless the record discloses a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1932) ; Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947).

The purpose of the issuance of a temporary injunction is to preserve the status quo in regard to the matter in controversy or prevent irreparable injury or damage to applicant, pending final determination of the case on its merits. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Godley v. Duval County, Tex.Civ.App., 361 S.W.2d 629, no writ.

Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue writ of temporary injunction, and its order thereon will be reversed only on a showing of clear abuse. There is no abuse of discretion in issuance of writ of temporary injunction if petition alleges a cause of action, and evidence adduced tends to sustain it. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Coastal Bend Milk Producers Ass’n v. Garcia, Tex.Civ.App., 368 S.W.2d 260, no writ; Miller v. Texsteam Corp., Tex.Civ.App., 327 S.W.2d 465, no writ.

Appellee contends and there is supporting evidence in the record that Pobre-cito, Inc., was formed at least in part out of community assets of the decedent, Mae H. Hausman, and her husband, Monroe E. Hausman, and that the estate of Mae H. Hausman has. certain property rights and interests in Pobrecito, Inc. There is also testimony as to substantial advances or gifts made by Monroe E. Hausman to appellants during the marriage of Mae H. Hausman and Monroe E. Hausman, which from the record may or may not have been in fraud of the rights of the said wife, Mae H. Hausman. There is also evidence that appellants are authorized to write checks and draw on the bank account of Pobre-cito, Inc., which withdrawals could cause loss and injury to the ultimate beneficiaries of the estate of Mae H. Hausman in the event that it is finally determined that such estate has property rights and interests in Pobrecito. While the evidence as to these matters is conflicting, these are matters to be determined upon a trial on the merits, and cannot be determined upon a hearing relating to the wisdom or necessity of issuing a status quo order. “Deliberate action is essential for the accurate determination of legal rights and upon occasion this can be secured only by issuing a temporary decree protecting a status quo.” Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417 (1959).

We have carefully considered the complete record in this case and cannot say that the trial court abused its discretion in granting such temporary injunction.

The judgment is affirmed.


author: PRESLAR, Justice.

text:
    SOCONY MOBIL OIL COMPANY, Inc., et al., Appellants, v. C. A. SLATER and P. D. Withrow d/b/a Two States Tank Company et al., Appellees.
    No. 5774.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1967.
    Rehearings Denied March 15, 1967.

      Turpin, Kerr, Smith & Dyer, Jack T. Akin, Midland, Hardie, Grambling, Sims & Galatzan El Paso, for appellants.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, Evans, Pharr, Trout & Jones, Charles B. Jones, John A. Flygare and L. Brann, Lubbock, for appellees.
   OPINION

PRESLAR, Justice.

This is a suit for property damage resulting from an oil field fire. Appellees, B. J. Well Service, Inc., hereinafter called “BJ”, and Two States Tank Company, hereinafter called “Two States”, brought separate actions, in the same suit, against appellant, Socony Mobil Oil Company, Inc., hereinafter called “Mobil”, and J. B. Bonner, dba Bonner Lease Service, hereinafter called “Bonner”, for fire damage to their respective equipment which occurred while Mobil’s well was being treated by acidizing. Trial was to a jury, and based upon their verdict, judgment was rendered against Mobil and Bonner, jointly and severally, in favor of BJ for $163,289.63 and in favor of Two States for $4,500.00. Both Mobil and Bonner appeal.

A somewhat extended statement of the facts is necessary. To treat its well, Mobil contracted with BJ to do the acidizing and fracing; it contracted with Bonner to provide the heating of the oils to be used in the operation; tanks necessary to the operation were rented from Two States by Mobil; and the rig and crew of Bateman & Whitsett was engaged to run tubing, but they are not parties to the suit. Two types of oil were used — crude, or lease oil, furnished by Mobil, and frac, a refined oil, furnished by BJ. Fire resulted when a Bonner employee mixed hot frac oil with a tank of hot crude oil. Equipment of BJ and the tanks of Two States were damaged in the amount of the judgment, the extent of the loss being stipulated. Treatment of the Mobil well involved acidizing the formation and flushing it with the hot crude oil after acidizing, and the pumping of the hot frac oil, mixed with sand, into the oil-bearing stratum under great pressure. Those were BJ’s part of the operation, although the fire occurred before they got to the fracing operation. Two States had no active part in the treating process; it merely supplied the two tanks, each of approximate 500-barrel capacity, which were later filled to near capacity — one with crude oil and! the other with frac oil. Bonner’s job was to heat the oil in each tank to 160° F. This was done by circulating the oil through a heating unit supplied by Bonner.

On the day of the fire, Bonner’s operator of the heating unit, one Bowles, heated the tank of crude oil, but before heating the frac oil, he withdrew some fifteen barrels, into an auxiliary tank on his heating unit because he thought the tank was so full of frac oil that it would probably expand and. overflow when heated. The BJ crew acid-ized the well and flushed it with some of' the crude oil, and then stood by doing nothing while the Bateman & Whitsett crew pulled the tubing. Bonner’s operator,. Bowles, heated the tank of frac oil and again heated the tank of crude oil to bring-it up to 160° F. “Chick” Smith, the Mobil engineer who had designed the criteria for-completing this well, came to the site, and. Bowles asked Smith if it would be all right-if he pumped the excess frac oil from his-auxiliary tank into the crude oil storage-tank. Smith replied that it would be O.K. and to go ahead. Smith then left for lunch in town, and soon thereafter Bowles began to heat the frac oil in his auxiliary tank and to pump it into the tank of crude oil. Soon after Bowles began to mix the hot: frac oil with the hot crude oil, there .was a. sudden eruption or spewing of the crude oil! out of the opening in the top of the tank to. a height variously estimated at from five to twenty feet above the top of the tank.. The vapor from the crude oil “flash” ignited almost immediately and the oil in the two tanks started to burn, resulting in the damage to the tanks of Two States and the equipment of BJ.

The court sustained the motions of Two States and BJ for instructed verdict as to the claims of each against the other, and overruled the motions for instructed verdict of Mobil and Bonner. Issues were submitted to the jury pertaining to the respective claims of Two States and BJ against Bonner and Mobil, and the respective claims of Two States and Mobil against BJ. The amount of damages-being stipulated, judgment was rendered for BJ and Two States based on findings of specific acts of negligence on the part of Bonner and Mobil. No negligence was found on the part of BJ, and it was found that the fire was not the result of an unavoidable accident. It was found that Mobil was negligent in ordering the crude oil to be heated and that same was a proximate cause of the fire; that Mobil permitted and allowed the heated frac oil to be placed in the same tank with the heated crude oil, and that such was negligence and a proximate cause of the fire; and that Bowles (Bonner’s operator) was attempting to put heated, refined frac oil into the same tank with heated crude oil, and that such mixing of heated frac oil in the same tank with heated crude oil was negligence and a proximate cause of the fire. Thus, the j udgment rests on two findings of negligence against Mobil — heating of the crude oil, and permitting the mixing of the two hot oils; and it rests on one finding of negligence against Bonner — the mixing of the two oils.

The assignments of error are too numerous to set out here, for each appellant has brought forward as a point of error on appeal each and every point of each and every defensive pleading presented at each stage of the trial — e. g., Summary Judgment Motion for Directed Judgment, Motion for Judgment NOV, Motion for Mistrial, etc. This careful preservation of all rights to assert all possible points of error has resulted in much duplication, overlapping, and various shades of assignments both within the respective briefs of each appellant and as between the two of them. We have considered and passed on each assignment in the manner presented, but will discuss and present our conclusions with more brevity, and yet try to meet our obligation to state the basis of our rulings.

To Special Issue No. 13 the jury found that J. W. Bowles (Bonner’s heating operator) on the occasion in question was attempting to put heated refined frac oil into the same tank with heated crude oil; and (Issue No. 14) that such mixing of heated frac oil in the same tank with heated crude oil was negligence; and (Issue 15), such negligence was a proximate cause of the fire. Appellant Bonner urges that there is no evidence to support Issues 14 and 15. When the contention that there is no evidence is made in a situation like this, the reviewing court may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957). The question is one of the existence of the evidence — whether in the record before us there exists any evidence of probative value which, with the reasonable inferences therefrom, will support the findings of negligence and proximate cause. If reasonable minds cannot differ from the conclusion that the evidence lacks probative force, it will be held legally equivalent to “no” evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884. The jury had before it definitions of “ordinary care”, “negligence”, and “proximate cause” and, having viewed the evidence under the above rules, we have concluded that there is some evidence to support the findings. Under these definitions, the tests of Bonner’s negligence, vel non, is what Bowles, in the exercise of ordinary care, should have reasonably anticipated would happen in the light of common knowledge, as a result of his mixing the hot oils in the manner in which it was done — "that the injury complained of, or a similar one, would result naturally and probably, in the light of the attending circumstances.” It is not disputed that Bowles was attempting to mix the hot frac oil into the tank of hot crude oil, and there is testimony of an expert witness that such mixing was a probable cause of the fire. There is much testimony as to the dangerous propensities of the product with which he was working and its behavior when heated to what may be called abnormal temperatures. The jury could charge Bowles with knowledge of these things, for he had been around the oil fields for many years and had been in the oil heating business for the past ten years. He knew that oil gave off gas when heated, crude oil more so than frac, and he checked the wind direction and placed his unit so no fumes from tanks would blow around it. He was heating the oil until it reached a sustained temperature of 160° in the tanks. He had seen oil bubble over from tanks at a lesser temperature. He was circulating the oil in his heater at 200°, and the evidence is that the frac oil was probably boiling as it came out of the heating unit. It was entering the tank of crude oil boiling, or just about boiling, under 55 or 60 pounds pressure at the rate of one and a half or two barrels per minute. Bowles testified that he knew the oil would give off fumes when heated, that it always occurs with “lease” oil; that he knew it gave off vapors — methane, pentane and gasoline — which could be ignited by a spark; that he had never heated oil to 160° before and would not have done so on this occasion if he had not been told to do so. We have concluded that the jury’s findings must be sustained.

The point is also presented that findings 14 and 15 are against the great weight and preponderance of the evidence. When such contention is made, a court oí civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. All of the evidence is considered — that which supports the verdict as. well as that which is against it. As to the findings before us, there is very little actual conflict in the evidence. That which supports the findings can be characterized as weak in some areas, but its weakness comes from itself, and not because it is controverted or outweighed by opposing evidence. On the matter of the fire being caused by the mixing of the heated oils, one expert witness testified:

“Q Mr. Ducker, you were asked to look into this case on behalf of Mr. Jones for Two States Tank people, is that correct, sir ?
A Yes, sir.
Q And your assignment, as I understand it, was to determine if you could the most probable explanation of the oil coming out of the bank, overflowing and going into the air, and producing this fire?
A Yes, sir.
Q Your most reasonable and probable explanation was the mixing of these two fuels, that is, the hot frac oil with the hot crude oil in this tank?
A In this particular combination in which it occurred.”

This witness and another expert both testified at great length, and the other expert had other ideas about the matter, but very little of their testimony was in actual conflict. His opinion as to cause could be characterized as “I don’t know”. The jury, as the sole judges of the credibility of the witnesses and the weight to be given their testimony, was free to resolve all conflicts and to believe or disbelieve these and the other witnesses. We are unable to say that their findings on these issues are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant Mobil urges that there is no evidence to support the jury’s findings to issues similar to those above discussed. To Special Issues Nos. 5, 6 and 7, the jury found that Mobil permitted and allowed the heated frac oil to be placed in the same tank with the heated crude oil, that such permitting and allowing of the heated oil to be mixed was negligence, and that such negligence was a proximate cause of the fire. Under the court’s instructions that there can be more than one proximate cause of an event, the jury answered Special Issues Nos. 9, 10 and 11 that Mobil ordered the crude oil heated, that in ordering the crude oil heated Mobil was negligent, and that such negligence was a proximate cause of the fire. Mobil contends there is no evidence to support these findings. Four Mobil employees who were connected with this operation in a supervisory capacity testified. In the portions of their testimony favorable to the findings is found some evidence which supports the jury’s answers. It is too voluminous to repeat here, and is scattered and in a sense fragmentary, so that it would not make sense to repeat it without setting out the full text in which it appears. In a situation like this, appellate courts are torn between the duty to rule clearly and concisely, and yet explain how the conclusions were reached. Briefly, the really close question as to each of the above sets of issues is the element of foreseeability in connection with negligence and proximate cause. From these Mobil men there was evidence that fracing with hot oil was a relatively new process and that it was hazardous. That the higher the temperature, the greater the hazard; that it had not been done at this high a temperature before — 160°; that sometimes Mobil warned of these hazards, but that it was not done in this instance; that Mobil did not mix crude and frac oil, and that was why separate tanks were employed; that heating crude oil was dangerous and that it was not to have been done on this job. Yet another employee testified that, on order from the Lubbock office, he ordered Bonner to heat the crude oil. The Mobil employee who told Bonner’s employee, Bowles, that it was all right to mix the frac and crude oil was a graduate petroleum engineer, experienced by seven years in this type of work; in fact he had designed the criteria for this job and was on the job to give technical advice. The other Mobil men were experienced, and working at this type of well completion was their regular job. An expert, Professor Ducker, head of the Petroleum Engineering Department of Texas Technological College, gave the jury much information as to what happens to crude oil when heated; that in his experiments to seek the cause of this fire he did not use the same oils that were used in this operation because it would have been too dangerous to him and his laboratory. Viewing the evidence under the rules above enumerated, we conclude that each of these findings of the jury is supported by some evidence.

Error is assigned in entry of the judgment based on the verdict because of certain conflicts in the findings. Before a judgment based on a verdict containing conflicting answers will be set aside, it must be shown that the conflict between the answers is such that one answer would establish a cause of action or defense, while the other would destroy it. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. It was found by Issues Nos. 1 and 2 that Mobil ordered the “oil in the tanks in question heated to 160°”, but that ordering the oil' heated to that temperature was not negligence, The contention is made that this last finding is in conflict with Issues 10 and 11 that mobile ordered the “Crude Oil heated” and that Mobil was negligent in ordering the “Crude Oil heated”. The conflict is resolved by the very nature of the-questions in view of the evidence. There were two tanks, one containing frac oil and the other crude oil, and there is evidence of' the different effect on each when heated. Thus, the jury could well believe that it was not negligence to heat frac oil, but that it was negligence to heat crude oil. In such event the questions would have to be answered as they were. It is urged that Issue No. 5, to the effect that Mobil permitted and allowed the oil to he mixed, is in conflict with the answer to Issue No. 24, to the effect that at the time of the fire the tanks, the hot oil truck, and the oil heating operation were under the exclusive control of Bonner. We see no irreconcilable conflict here. Bonner could be in control and yet have permission of Mobil, in the exercise of that control, to mix the two oils. By its answer to Issue No. 25, the jury found that Bonner did not fail to use ordinary care “in performing the heating operation”. It is contended that this is in conflict with Issue No. 14, “that such mixing of heated frac oil in the same tank with heated Crude Oil” was negligence. Bowles testified in considerable detail as to how he carried on the process of heating the oil. The jury could well find that he did not fail to use ordinary care in his heating operations, and not be in conflict with its belief that “such mixing” was negligence. He did not fail to heat well, but he never should have mixed the heated oils. Failure to use ordinary care in the heating operation was but another claimed act of negligence, and a negative answer to it does not destroy a positive answer as to the other claimed act. The same thing can be said for the finding on Issue No. 17 whereby the jury was asked: “Do you find from a preponderance of the evidence that J. W. Bowles caused the oil in the tank to become overheated and to boil out of the tank on the occasion in question?”, and the answer was negative. Those claiming he did, failed to carry their burden by a preponderance of the evidence, but no conflict was created.

It is urged that the judgment should be reversed as to the recovery granted BJ against Bonner and Mobil because of the “no duty” doctrine of the owner-invitee situation, voluntary assumption of the risk doctrine (volenti non fit injuria), and the “transitory conditions” doctrine. It is our opinion that the facts and jury findings do not bring this case within any of those doctrines sufficiently to establish any of them as a defense.

In a common law negligence action of this type, the bare elements of recovery require that the injured party (plaintiff) prove that the other party (the defendant) owed a legal duty to the plaintiff which he violated, and that plaintiff suffered injury which was proximately caused by such violation. Plaintiff must be free of fault proximately causing his injury, for one cannot recover where he brings about his own injury nor where such injuries are caused by both himself and the defendant. In this case Bonner and Mobil were found to be at fault by certain negligent acts which caused injury to BJ, and BJ was found free of fault causing such injuries; yet the contention is made that BJ cannot recover because of the “no duty” and volenti doctrines. Those doctrines are most recently discussed by the Supreme Court of this State in the case of J. & W. Corporation v. Ball, 414 S.W.2d 143 (January 14, 1967), and the two doctrines were summarized at page 146:

“This Court in McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), clearly stated that there are two legal theories, wholly aside from the plaintiff’s own contributory negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries. This Court there said, ‘One [of these two theories] rests on the judicial concept that there is no breach of any duty the landowner owes to his invitees. The other arises out of the doctrine of volenti non fit injuria — voluntary encountering of risk — which is regarded as a defense to all negligence actions. In this state both theories are recognized.' 271 S.W.2d at 393. These two legal theories were again explained in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).”

This so-called “no duty” theory is part of the plaintiff’s case, and as an invitee he must plead and prove the existence of a duty on the part of the occupier and a breach of that duty. Plaintiff says there is a duty, and defendant says there is no duty. BJ did not elect to seek recovery under the “no duty” theory, but relied on actionable negligence. Where those acts were committed is not the basis of the judgment. The “no duty” theory can have no application to Bonner, for he was not the owner or occupier, and we fail to see how the fact that Mobil, as the owner of the land where the acts were committed, can be legally excused from such acts by the mere fact of ownership. But it is urged that BJ had knowledge of the dangers which it would encounter in doing this work and cannot recover because it assumed the risk. Assumed risk is the heart of the volenti doctrine, and is an element of the court-nurtured jungle of rules involved in “no duty”. The assertion that BJ had knowledge of the dangers to be encountered is too broad. If their fault be that they assumed a risk, it should be a risk normal to the activity in which they were engaged — an expected danger, or one easily predictable. Heating the crude oil was not a normal part of the operation; it had never been done before, and was not supposed to have been done this time. Mixing of the hot frac oil and hot crude oil was not a part of the process of treating the well. It, too, was not supposed to have been done. Applicable here is the rule announced in Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup., 1963), holding that in “no duty” cases involving activities, the activities generally must be rigidly circumscribed and easily predictable. The hazards encountered by BJ — the heating of the crude oil and the mixing of the two heated oils — do not meet that test. For similar reasons, the volenti doctrine is inapplicable here; that is, BJ could have been aware of the normal dangers, but not know of or appreciate the particular danger which caused its injuries. Such is the holding of the Supreme Court in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), and Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). In each of those cases the plaintiff was aware of some danger, but did not know or appreciate the particular danger. One cannot intelligently choose to encounter a risk of which he does not know. There is no evidence that BJ had any knowledge that the two oils were to be mixed. BJ assumed the ordinary risks of the operation, but did not assume the unusual risk of the negligence of mixing the oils. As this court said, in Fabens Ice Company v. Kosinski, Tex.Civ.App., 339 S.W.2d 543, at page 548:

“A person must assume all the ordinary risks of his voluntary acts or the environments in which he voluntarily places himself, but he does not assume obscure and unknown risks, which are not naturally incident thereto and which, in the existing conditions, would not be reasonably observed and appreciated, and one is not required to anticipate that he will be exposed to a hazard not naturally incidental to his situation, but arising from negligence which he had no reason to foresee. 65 C.J.S. Negligence § 174, p. 852 (and cases cited).”

Volenti being a defense, it was incumbent upon Mobil and Bonner to submit proper issues to establish it. Issues were proposed to the court and they were rejected. We think the trial court was correct in refusing the two proposed issues (regarding volenti), for they did not meet the requirements of Rule 279, Texas Rules of Civil Procedure, and for the further reason that their submission and favorable answers thereto would not have established knowledge and appreciation of the particular dangers above discussed. They inquired whether at the time of entering into the contract with Mobil, BJ knew and fully appreciated “the dangers and hazards” involved in fracing the well with heated oil, and whether BJ voluntarily assumed such risks. There is no evidence, certainly not at the time of entering into the contract, that BJ knew the two oils were to be mixed —no evidence to require the submission of such an issue. The requested issues were too broad and general to cover the particular acts which it is claimed that BJ assumed.

Point of error is made that the judgment for $4,500.00 rendered against Bonner and Mobil in favor of Two States cannot stand as to Bonner because of the imputed negligence rule of the bailee-bailor relationship of Two States and Mobil. The rule is precisely set out in Weir v. Petty, Tex.Civ.App., 355 S.W.2d 192 by quoting from Rose v. Baker et al., 138 Tex. 554, 160 S.W.2d 515 (1942):

* * * where a bailor entrusts his property into the care, custody, and control of a bailee, and damage results to such property while in the hands of the bailee, as a result of negligence on the part of a third party and contributory negligence on the part of the bailee, the contributory negligence of the bailee is imputed to the bailor, so as to bar recovery by bailor in his suit against the negligent third party’ ”.

Two States leased the tanks in question to Mobil, delivered them to the well site, and had nothing more to do with them. They were destroyed by the fire, and Two States, in seeking recovery for their loss, alleged that both Mobil and Bonner were negligent; the jury so found, and the $4,500.00 judgment resulted. The judgment cannot stand if "the above quotation is the law, and we are convinced that it is. It is not the law in a vast majority of other jurisdictions, but it is the law in Texas by a long, unbroken line of cases going back to the year 1885. We are constrained to follow it, and therefore we reverse and render that portion of the judgment in this case which grants Two States judgment in the amount of $4,500.00 against appellant, Bonner, and here render judgment that Two States take nothing as against Bonner.

All points of error have been considered and all are overruled except in the instance above noted as to that portion of the judgment of Two States against Bonner; and excepting such portion of the judgment, the remainder of the judgment of the trial court is in all things affirmed.