author:
COIL, Commissioner.
      EAGER, Judge

text:
    James Lee HASEMEIER, Appellant, v. Hugh R. SMITH, Respondent.
    No. 48959.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.

      John T. Sluggett, III, Clayton, for appellant.
    Morris E. Stokes, Burton H. Shostakr Moser, Marsalek, Carpenter, Cleary Jaeckeli & Hamilton, St. Louis, for respondent.
   COIL, Commissioner.

Mr. Hasemeier, the plaintiff below, filed a malpractice action wherein he claimed' $25,000 as damages for the wrongful death of his wife which he averred was due to defendant’s negligence. Defendant’s motion to dismiss on the ground that plaintiff’s petition did not state a claim upon which relief could be granted was sustained, and the trial court adjudged “that this cause of action be and is hereby dismissed without prejudice.” Defendant has moved to dismiss this appeal on the ground that the judgment of dismissal was not final and ap-pealable.

Defendant concedes that a judgment dismissing an action for failure of the petition to state a cause of action is a final appeal-able judgment unless the trial court specifies otherwise. Defendant contends that because the dismissal of the present “cause of action” was without prejudice and because Section 510.150 RSMo 1959 and V.A.M.S. provides that upon a dismissal without prejudice another action may be brought for the same cause, the trial court’s dismissal judgment thereby specified that the judgment was not final.

When a petition is dismissed on the ground that it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appeal-able. The fact that the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable. See Douglas v. Thompson, Mo., 286 S.W.2d 833; Healy v. Atchison, T. & S. F. R. Co., Mo., 287 S.W.2d 813, 814, 815; Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 796; Wegman v. Fendelman, Mo.App., 333 S.W.2d 290, 293, 297[6,7]. Plaintiff, having elected to appeal from the judgment dismissing his “cause of action” without prejudice, rather than to bring another action, would be es-topped to bring another action for the same cause after an appellate court had affirmed the trial court’s dismissal judgment in cases such as this where the trial court’s judgment was that plaintiff had not stated a claim on which relief could be granted and was treated by plaintiff as an adjudication on the merits. Such is unlike the situation in Douglas v. Thompson, supra, where a judgment of dismissal without prejudice for failure to comply with the rule that required plaintiff’s address to be stated in the petition, although an appealable judgment, did not prevent the commencement of a new action under Section 516.230 RSMo 1959 and V.A.M.S. after affirmance of the dismissal judgment by this court. Douglas v. Thompson, supra, 286 S.W.2d 835.

Plaintiff alleged that when his wife, now deceased, was pregnant she employed defendant, a physician and surgeon specializing in obstetrics, to attend and treat her for the remaining prenatal period, to deliver her child, and to render required postnatal care; that on January 21, 1961, plaintiff conveyed his wife, then in labor, to a hospital where she was placed under the exclusive control of defendant who, at 12:30 a. m. on January 22, advised plaintiff that the baby was dead and it would be necessary to “take” the baby to prevent complications detrimental to the health of his wife; that thereafter the wife was taken to the delivery room where a general anesthetic was administered, as the result of which she became unconscious and, never regaining consciousness, died at 6 a. m.; that prior thereto a live, healthy, female child “was extracted from the uterus of the plaintiff’s decedent” and the child was at the time of filing the petition well and normal in all respects ; that the “fatality rate of mothers in childbirth in modern hospitals * * * is so * * * low” as to not be “the subject of statistics”; that the death of plaintiff’s wife was proximately caused by the negligence and carelessness of the defendant in administering to her, including the prenatal and postnatal care and the delivery of the child and the administration by defendant of the anesthetic; that the exact nature of such carelessness and negligence “plaintiff cannot state and does not know as plaintiff was not present at any of the times of such treatment and plaintiff’s decedent was not conscious.”

Plaintiff asserts that the trial court erred in adjudging his petition insufficient for the reason that the petition stated a claim for relief under the res ipsa loquitur doctrine and for the further reason that, in any event, the petition stated a claim entitling plaintiff to relief under his allegations of general negligence.

It is our view that the res ipsa loquitur rule is not applicable to the occurrence as alleged in plaintiff’s petition. Res ipsa loquitur is a rule of evidence whereby a submissible issue of negligence may be made by adducing a particular kind of circumstantial evidence, viz., by showing the fact of an occurrence which, because of its character and circumstances, permits a jury to draw a rebuttable inference, based on the common knowledge or experience of laymen, that the causes of the occurrence in question do not ordinarily exist in the absence of negligence on the part of the one in control.

“Generally, the doctrine of res ipsa loqui-tur is not applicable in malpractice cases,” and only in unusual circumstances may a physician or surgeon be found guilty of a failure to exercise the requisite degree of care in the absence of expert medical testimony tending to so prove. Williams v. Chamberlain, Mo., 316 S.W.2d 505, 511. Thus it has been held that no inference of negligence arises (and that the res ipsa loquitur rule is not applicable) from the fact alone that an unfavorable result ensues from treatment or surgery even though the unfavorable result may be a rare one in the particular case, Ritter v. Sivils, 206 Or. 410, 293 P.2d 211, 213; or from the fact alone that the result of surgery was fatal, Sanders v. Smith, 200 Miss. 551, 27 So.2d 889, 892[2,3], Barker v. Heaney, Tex.Civ.App., 82 S.W.2d 417, 419, Loudon v. Scott, 58 Mont. 645, 194 P. 488, 492 [8-10], 12 A.L.R. 1487; or from the fact alone that the patient died while under an anesthetic or while one was being administered, Mitchell v. Atkins, 6 W.W.Harr. 451, 36 Del. 451, 178 A. 593, 595[5], Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172, 176[4], See also, Thompson v. Lillehei, 8 Cir., 273 F.2d 376, 381 [3-5]; Annotations in 162 A.L.R. 1265; 29 A.L.R.2d 501, 504, § 3; 37 A.L.R.2d 1284, 1294, § 11; 58 A.L.R.2d 216, 228, § 8.

There is a line of cases in which various courts have held the res ipsa loquitur rule applicable where the patient receives, during the course of an operation or medical' treatment, especially if the patient is unconscious, an unusual injury; that is, for example, an injury to an unaffected portion of the body, i. e., one unconnected with the area of the operation or treatment. See for example, Oldis v. La Societe Francaise De Bienfaisance Mutuelle, 130 Cal.App.2d 461, 279 P.2d 184, 186[1,2] (patient burned while in surgery on a part of the body not within the area of or affected by the surgery) ; Poor Sisters of St. Francis v. Long,. 190 Tenn. 434, 230 S.W.2d 659, 662, 663-(patient hospitalized for childbirth and during delivery received a compression of the eighth vertebra and a comminuted fracture of the humerus in the left shoulder area) ;. Meadows v. Patterson, 21 Tenn.App. 283,, 109 S.W.2d 417, 419[2, 3] (in which the doctrine was recognized where a patient was operated for appendicitis and while unconscious received an eye injury probably inflicted by a fingernail, but the court refused to apply the doctrine because a finding or inference that the eye injury occurred in the operating room as opposed to some other place at a later time was .not justified)..

There are cases wherein it is alleged that, a physician or surgeon left a foreign object in an operative cavity which are sometimes, by some courts referred to as res ipsa loqui-tur cases, although probably they are specific negligence cases. Williams v. Chamberlain, supra, 316 S.W.2d 511, and Missouri cases there cited.

The present case falls into neither of the-mentioned categories and aside from every other question which might be suggested' pertaining to the applicability of the res' ipsa loquitur rule under the facts alleged' by plaintiff, it is sufficient to point out that (assuming the allegations of the petition-that the doctor “took” and “extracted from! the uterus” the child means that a Caesarean section was performed for the sole reason-that defendant thought the child was dead)1 the only relevant inferences possible from' the fact and character of the occurrence-stated in plaintiff’s petition are that an unnecessary operation was performed,, and' perhaps an extremely tenuous inference that in the absence of that operation no death would have occurred. It is apparent, however, that those inferences, even if both were justified, do not supply the absent, presently unjustified, but essential prerequisite to the application of the doctrine that laymen know, based on their common knowledge or experience, either that a Caesarean section ordinarily would not have been performed on plaintiff’s decedent but for the negligence of defendant, or that a patient ordinarily does not die during the course of or as a result of prenatal care, childbirth whether or not by Caesarean section, postnatal care, or while under an anesthetic, irrespective of the particular attending circumstances, unless the physician in charge was negligent.

We hold, therefore, that the averments of plaintiff’s petition preclude the application of the res ipsa loquitur rule to the stated occurrence.

Plaintiff contends that his petition was erroneously dismissed because he stated a sufficient claim for relief by charges of general negligence; and that such is true irrespective of whether the doctrine of res ipsa loquitur is applicable. We are of the opinion that plaintiff is correct in that contention in the light of the recent opinion of this court in Kornberg v. Getz Exterminators, Inc., Mo., 341 S.W.2d 819. The result in the Kornberg case is based upon an analysis and application of the principles enunciated in Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 90, petaining to averments of general negligence which may be established by circumstantial evidence even though the res ipsa loquitur rule is inapplicable. In the Kornberg case the trial court had sustained a motion to make a petition more definite and certain. The petition’s averments in that case were, in substance, that defendant had been employed to rid plaintiff’s home of insects; that pursuant thereto defendant had applied a • certain insecticide in plaintiff’s home which caused portions of the house then and continuously since to be permeated with putrid, vile, toxic, and noxious odors; that defendant had exclusive knowledge as to the cause of such and that the insecticide used, properly applied, would not result in such odors for an extended time; and that defendant was negligent and careless in applying the insecticide in such places in plaintiff’s home as to cause those odors for such a length of time.

The court in the Kornberg case said, in review of the opinion in the Maybach case (341 S.W.2d 821, 822) : “On the question of the averments of the petition, after stating that a ‘plaintiff should allege facts sufficient to inform the defendant of the breach of duty with which he is charged and, if the facts are within the plaintiff’s knowledge, he should be required to state them with reasonable particularity,’ [359 Mo. 446, 222 S.W.2d 92] and noticing that negligence ‘is an ultimate fact which may be pleaded as such, and not a conclusion,’ and observing that the law does not require the impossible, Maybach continues: ‘Where, from the nature of the case, the plaintiff in an action for damages for negligence could not be expected to know the exact cause of the precise negligent act which became the cause of an injury, and the facts were peculiarly within the knowledge of the defendant, the plaintiff is not required to allege the particular cause.’ [38 Am.Jur., p. 954, sec. 262. See also Rinard v. Omaha, K. C. [& E.] Ry. Co., 164 Mo. 270, 64 S.W. 124; State ex rel. Becker v. Koerner, Mo.App., 181 S.W.2d 1004; Houts ‘Missouri Pleading and Practice,’ p. 202, sec 107.]

“ ‘Under the circumstances of this case, the facts concerning the manufacture of the beer and the inspection and charging of the bottles being peculiarly within the knowledge of appellant, we think the petition charges general negligence with as much particularity as should be expected. [38 Am.Jur., pp. 951-4, secs. 261-2.]’ ”

The court concluded that the petition in the Kornberg case charged “general negligence with as much particularity as should be expected” and that a holding to the contrary constituted an abuse of discretion and reversed the judgment of dismissal, which, as noted, had resulted from the failure of plaintiff to comply with the trial court’s order sustaining defendant’s motion for a more definite statement.

The principles stated in the Maybach case as analyzed and applied in the Kornberg case are presently applicable. It is true that the averments of the petition in this case are as general as averments of negligence could possibly be, but it is also true that the usual malpractice case is a peculiarly appropriate one for allegations of general negligence; especially where, as here, the patient was allegedly unconscious and died without regaining consciousness, and where the facts with respect to the acts performed by the physician and their manner of performance are within defendant’s knowledge and usually the full facts as well as the circumstances are unknown to plaintiff and perhaps difficult for him to ascertain.

In malpractice cases, just as in others, negligence and proximate cause may be proved by circumstantial evidence. Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743, 749; Eichholz v. Poe, Mo., 217 S.W. 282, 284[1]; Hilton v. Mudd, Mo.App., 174 S.W.2d 31, 36[1,2]. Ordinarily a court would not know until the trial what evidence, if any, circumstantial or otherwise, plaintiff might adduce in support of his allegations of general negligence. We are of the view that in this type of case a plaintiff should not be foreclosed from presenting whatever circumstantial or other evidence of negligence he may be able to adduce simply because he could not allege specific negligence at a particular time prior to trial, or because the res ipsa loquitur rule was not applicable to the occurrence as averred'in plaintiff’s petition.

In this case, however, from plaintiff’s brief and especially from statements made by plaintiff’s counsel in oral argument, we have the impression that while plaintiff has made the formal contention that his petition should not be dismissed because he should be given an opportunity to present evidence, circumstantial and otherwise, of his allegations of general negligence, his real contention is that, since proof of the facts alleged in his petition is all the evidence he ever will be able to adduce, such evidence alone would constitute sufficient circumstantial evidence to authorize a jury to infer defendant’s causal negligence; and we understand that such is the real question plaintiff intended to submit for decision.

If we are correct in our understanding and if we have correctly stated plaintiff’s actual contention, we hold, for the reasons heretofore stated in connection with the nonapplicability of the res ipsa loquitur rule, that proof of all the averments of plaintiff’s petition would not constitute sufficient evidence to make a submissible case.

Inasmuch as we may not confidently conclude that we have correctly construed plaintiff’s real intention and contention, and inasmuch as plaintiff has not foreclosed his right to a ruling that the petition, standing alone as a pleading, sufficiently charges general negligence, our order should be and is that the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

PER CURIAM.

■ The foregoing opinion by COIL, C., is adopted as the opinion of the court en banc.

Reversed and remanded for further proceedings.

EAGER, J., concurs in result in separate opinion filed.

WESTHUES, C. J., and STORCKMAN, LEEDY, DALTON, HOLLINGSWORTH and HYDE, JJ., concur .in result and concur in separate opinion of EAGER, J.

EAGER, Judge

(concurring in result).

I£ the allegations of this petition consist only of general negligence, and if “proof of all the averments * * * would not * * * make a submissible case,” then the judgment of dismissal should be affirmed. I would see nothing to be gained by permitting the plaintiff to prove at the trial merely what he has alleged, and then be cast on a directed verdict. I agree fully with the ruling in the divisional opinion that no res ipsa situation is presented; but I am not convinced that a strictly medical malpractice case of this type may properly be pleaded solely in terms of general negligence. Under our present discovery rules (Rules 56-62), V.A.M.R. plaintiff is given ample opportunity to determine the facts and to state specific negligence in this class of cases. (See discussion, 27 Mo.Law Review, 52-54, Practice and Procedure in Missouri — Divilbiss.)

I feel, however, giving to this petition the benefit of a liberal construction (State ex rel. Becker v. Koerner, Mo.App., 181 S.W. 2d 1004, and cases cited), and of such inferences as may reasonably be drawn from its allegations, that it states, rather scantily, the substance of a charge of negligent error in diagnosis. That, of course, is specific negligence. The allegation that defendant stated that the baby was dead and that this fact necessitated its removal, is a statement of defendant’s expressed and then present diagnosis; the allegation that the baby was delivered alive and normal, is a statement that the diagnosis was wrong; negligence, generally, is alleged in all acts of the defendant, including the “prenatal care.” Perhaps the most tenuous inference to be drawn upon such a theory is that of causation, i. e., that the supposed negligent error in diagnosis, by means of the operation, anesthetic, etc., caused the death. Viewed in this light, the petition may be subject to a motion to make more definite and certain.

Plaintiff would probably have a most difficult time in proving a submissible case on this theory. Williams v. Chamberlain, Mo., 316 S.W.2d 505, 512; Sibert v. Boger, Mo., 260 S.W.2d 569, 571. That, however, is not our problem here. In my view the motion to dismiss should have been overruled, and the judgment should now be reversed and the cause remanded.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY OF DES MOINES, IOWA, Petitioner, v. William Martin NELSON, Respondent.
    No. A-8751.
    Supreme Court of Texas.
    Oct. 24, 1962.
    Rehearing Denied Nov. 28, 1962.

      Bryan & Patton, Julietta Jarvis, Houston, with above firm, for petitioner.
    Blakeley & ■ Williams, Houston, for respondent.
   CULVER, Justice.

The respondent, Nelson, filed this suit against Employers Mutual Casualty Company to recover under a standard “physical loss” policy of insurance issued by it covering Nelson’s residence in the City of Houston. Judgment was entered for the insured based on a jury verdict. The Court of Civil Appeals has affirmed. 351 S.W.2d 278.

Nelson’s home is of frame construction, with composition type roof. On or about June 24, 1957, a construction company operating under authority from the City commenced the excavation for a sewer line along the street in front of Nelson’s home. The insured complains of various items of damage to his house including cracks in the foundation and sheetrock walls, misalignment of doors and slanting of the floors, all of which he alleges were caused by the company in the construction and installation of this sewer line.

Insured asserts that the damage resulted from vibration and concussion caused by the repeated dropping of a large steel ball used in breaking up the pavement and the installation and removal of steel pilings. In addition as a contributing cause he claims that there existed beneath his foundation a stratum of sand which shifts when lateral support is removed and that shifting occurred by reason of the sewer excavation.

At the outset the insurer contends that no recovery under this policy is permitted because it expressly excludes loss occasioned by enforcement of any local or state ordinance or law regulating the construction, repair or demolition of buildings or structures. Under this exclusion the insurer maintains that since the sewer construction contract was let in accordance with a valid ordinance of the City providing therefor, if the loss as claimed was occasioned by the construction of the sewer, then there is no coverage provided.

The point is not well taken. The exclusion, in our opinion, has reference to damage brought about by the exercise of the police power rather than that produced on account of work contracted for by the authorities. The cases relied upon by the insurer bear out this distinction.

In Conner v. Manchester Assurance Co., 9 Cir., 130 F. 743, the policy provided that the insurer should not be liable for loss caused directly or indirectly by order of any civil authority. The county supervisors under statutory authority ordered fires started to destroy harmful insects. The insured was not allowed recovery for grain damaged by the fire even though the loss was indirectly caused thereby and was not an intentional result. On somewhat similar facts and under a like exclusionary provision recovery was also denied in Hocking v. British American Assurance Co., 62 Wash. 73, 113 P. 259, 36 L.R.A.,N.S., 1155; Joplin v. National L. S. Ins. Ass’n, 61 Or. 544, 122 P. 897, 44 L.R.A.,N.S., 569; Aetna Ins. Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395.

The City is not liable for the enforcement of an ordinance regulating the health and welfare of its citizens but is responsible when it damages or takes property in the construction of public works and this we think points up the distinction.

What the policy excludes is such damage for instance as that caused by the enforcement of an ordinance condemning property that is hazardous and unsafe, zoning regulations and the like.

The insurer further contends that whatever damage there was to insured’s house was the result of normal forces of nature and therefore not covered by the terms of the policy since it excludes and does not insure against “normal settling, shrinkage or expansion in foundations, walls, floors or ceilings,”; however, the exclusion expressly does not apply to “total or partial collapse”. The jury found that the damages were not the result of normal settling and also found that the house suffered a partial collapse.

The first issue was submitted as follows:

“Was the damage, if any, to the plaintiff’s house which occurred subsequent to June 24, 1957, the result of normal settling, shrinkage or expansion in foundations, walls, floors or ceilings?
“If you find from a preponderance of the evidence that such damage, if any, was not caused by normal settling, shrinkage or expansion in foundations, walls, floors, or ceilings, let your answer be, Tt was not the result of normal settling.’ Otherwise, let your answer be, Tt was the result of normal settling.’
“In connection with the foregoing Special Issue, you are instructed that the term ‘normal settling’ means a sinking or subsidence caused by usual or regular conditions, as distinct from abnormal (that is, unusual or irregular) conditions.”

The insurer objected to the definition of “normal settling” and to the refusal of its request that the term “normal” be defined as including “not only those forces which are constantly and habitually operating, but also those forces which operate periodically or with a certain degree of frequency.” The company’s position is that the instruction given by the court is too restrictive because periodic weather conditions of drouth and rainfall are normal even though unusual or irregular. Hence, it claims that the jury might well have considered that although the damage was inflicted on account of periodic conditions the settling or expansion was not normal because those conditions were to be taken as unusual and irregular, and hence abnormal.

The Restatement of Law, Torts, § 302, defines the word “normal” as follows:

“The actor as a reasonable man is required to anticipate and provide against the normal operation of natural forces. And here the word 'normal’ is used to describe not only those forces which are constantly and habitually •operating but also those forces which operate periodically or with a certain degree of frequency.”

While this definition is drawn from a discussion of negligence, nevertheless we think it correctly applies to the situation here. It is expressly approved in In re New Jersey Power & Light Co., 9 N.J 498, 89 A.2d 26, 41, in speaking of income and expense.

The insurer also excepted to- the form of the issue on the ground that it overemphasized “settling” and omitted the equally important matter of “expansion”. Only the term “normal settling” was defined. In our opinion the issue and definition did not furnish to the jury a fair and adequate opportunity of passing upon the question of whether or not the damage was covered by the terms of the policy.

The insurer’s expert testified to the effect that neither the digging of a storm sewer nor any of the work in connection therewith caused any of the damage complained of, but that it resulted from a movement of soil due to the absorption of moisture; that the house was built during a period of drouth and when the weather cycle changed the soil expanded with the moisture. The witness also testified that there was no settling either normal or abnormal, but that an expansion and upthrust of the soil produced the damage. The probable harm in this issue and definition as submitted is brought out rather clearly by Nelson’s counsel in his argument to the jury. He argued that even if the jury thought there was an upthrust or expansion there was no settling according to the insurer’s own witness. He also contended that even if there was any expansion it was confined to the soil and thus was not expansion in the “foundations” as provided in the exclusion clause; that there could be no expansion of the foundation because it was the earth that expanded and not the house foundation. In our opinion the clause is not to be so strictly construed.

think the words “settling” and “expansion” as used in the policy are to be construed as being antonymous to each oth-othThe policy clause speaks of “settling in the foundation” and “expansion in the foundations”. If we leave out of considera-considerasettling and expansion caused by the action of the soil under the house and re-reto consider the soil as a part of the foundations, as the insured contends, then the clause would have little practical mean-meanIt is difficult to see how any substan-substandamage to a dwelling could be brought about by normal expansion and contraction only of concrete, wood and other building materials. Nor do we think that is what the terms of the policy import.

We are of the opinion therefore that the court erred in the submission of this issue and the accompanying definition.

We further hold that there is no evidence in this case to support the jury finding of “partial collapse”. Among the numerous photographs introduced by the insured only three purport to show any damage to the house. One reveals a rather wide crack in the sheetrock extending downward from the bottom of a window casing. The other two show doors out of alignment. There is testimony also that a corner of the foundation had subsided three and one-fourth inches and that there was a sloping of the floors in the living room and in the back bedroom. There were cracks and settling in the driveway. These and similar facts merely support the conclusion that the damage to the house was the result of settling, shrinkage or expansion and not that the house “partially collapsed”.

The term “partial collapse” was defined by the court as:

“ * * * a sinking, bulging, cracking or pulling away of the foundation or walls or other supporting structures so as to impair their function of supporting the superstructure and tending to destroy or impair the efficiency of the dwelling as a habitation.”

We do not approve that definition. It embraces not only those flaws and defects which impair but even those which tend to impair “the efficiency of the dwelling as a habitation”. It could very reasonably be said that even a slight settling or expansion of the foundation would tend to impair the efficiency and under this definition that would therefore constitute a “partial collapse”. We thinks the term cannot be so broadly described.

The clause providing for coverage of loss caused by “collapse or partial collapse” is a rather recent development in contracts of insurance as is also the variant of that provision, namely, “collapse of a building or any part thereof”. All of the authorities bearing on this question which we have found involve fact situations similar to the case at bar but the policy provision in each case was framed in terms of “collapse of a building or a part thereof”. The Court of Civil Appeals has held this distinction to be material in passing upon the correctness of the definition given by the trial court. In our opinion, however, if there be a distinction it is not material to our decision here.

The word “collapse” is not one of art, but is unambiguous and is generally understood to have the meaning of to fall or shrink together, to cave in, to fall into a flattened, distorted or disorganized state. Central Mutual Ins. Co. v. Royal, 269 Ala. 362, 133 So.2d 680, 72 A.L.R.2d 1283; Weiss v. Home Ins. Co., 9 A.D.2d 598, 189 N.Y.S.2d 355; Nugent v. General Ins. Co. of America, 8 Cir., 253 F.2d 800; Rubenstein v. Fireman’s Fund Ins. Co., 339 Ill. Aop. 404, 90 N.E.2d 289; Gage v. Union Mutual Fire Ins. Co., 1961, 122 Vt. 246, 169 A.2d 29.

To the contrary are two cases from Kansas. Travelers Fire Ins. Co. v. Whaley, 10 Cir., 272 F.2d 288 purports to follow the Kansas rule in Grady v. Erhard, 143 Kan. 170, 53 P.2d 478. The Grady case, however, was concerned with a rental contract and construed the term “collapse” from the context of the lease saying, “Obviously the parties had ‘tenantable condition’ or ‘fitness for occupancy’ uppermost in their minds when they wrote into the lease the paragraph above.” The Whaley case holds that if the company had intended that the word “collapse” be given its ordinary meaning it should have so stated in the policy. We do not agree with that philosophy.

In Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P.2d 417, the clause “collapse of building (s) or any part thereof” was held to be ambiguous and susceptible of more than one construction and interpreted as “the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a ‘collapse’ of the building”. The case was reversed because the trial court included in the definition the further condition “so as to render it unsuitable for use as a dwelling.”

The Vermont Court in Gage v. Union Mutual Fire Ins. Co., supra, held that damage to a cottage consisting of a buckled ceiling, raising of the floor, plumbing out of line, door sill dropped five inches, splitting of fire place and pulling away of chimney, did not come within the coverage of a policy insuring against “collapse of building^) or any part thereof”. That court found itself in agreement with the construction given to the policy language in Central Mutual Ins. Co. v. Royal, supra, and expressly rejected both the reasoning and result reached in the two Kansas cases.

Although contracts of insurance are said to be construed strictly in favor of the insured, nevertheless they are to be construed generally as other contracts, in that unambiguous words and phrases are to be taken in their ordinary meaning unless there is something in the contract that would indicate a contrary intention. United American Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160. We see no reason why that rule should not apply here. If so then a partial collapse would certainly mean that the foundation or walls or other supporting structures had been impaired with respect to their function of supporting the superstructure. We think the term can be defined properly as a sinking, bulging, breaking or pulling away of the foundation or walls or other supports so as materially to impair their function and to render the house unfit for habitation.

In view of the necessity of a retrial we will refer briefly to two or three other matters that arose in the argument of plaintiffs counsel. In closing he conceded that he had “gotten out of line a few times” and from the record we conclude that he was not guilty of exaggeration in making that admission. Among the statements made are the following: that in view of the defense tactics and the denial of liability he would like to cancel his own policy; that Nelson would have to sell his house for cash because he could not get a loan; that because the company denied the adjuster’s authority to waive proof of loss “they are lulled into a false sense of security; and are led like lambs to the slaughter”. He also made remarks calculated to reflect on the honor and integrity of insurer’s counsel. These or similar statements are erroneous and should not be repeated.

The insurer also complains of statements made by counsel to the effect that the insurer could recoup from the contractor any damages it was compelled to pay out on this claim. These statements were said to be invited because the insurer introduced in evidence a copy of the petition filed by Nelson and other home owners against the contractor for the same damages. While the policy did provide for sub-rogation we think that neither that matter nor the petition bore upon the matters in controversy in this case

Accordingly the judgment of the Court of Civil Appeals and that of the trial court are reversed and the cause remanded to the trial court.

      . See the discussion in Scanlan v. Home Ins. Co., Tex.Civ.App., 1935, 79 S.W.2d 186, wr. ref.


author: McDonald, judge.

text:
    James Kennon DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34913.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.

      Hattie E. Briscoe, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted for the offense of “Operating a motor vehicle upon a public highway * * * while under the influence of intoxicating liquor,” in a trial before the court, without the intervention of a jury, in County Court at Law No. 3 of Bexar County. His punishment was assessed by the court at a fine of $50 and three days in jail.

The state adduced testimony from one witness, L. O. Hemphill, a highway patrolman. Officer Hemphill identified the appellant as the driver of the car which he testified was traveling at a high rate of speed, approximately seventy miles per hour. The witness further related that he followed appellant’s car on the occasion in question, which was at night, and observed that he was driving from one side of the road to the other; that he pulled up beside appellant and stopped him and appellant pulled off the road at an angle, with the rear end of the car still upon the pavement.

The officer stated that he got out of his patrol car and walked up beside appellant’s car and asked him to step out; that appellant “opened the door, and started to get out, and he almost fell down”; that appellant just stumbled out, more or less, when he got out and “was holding on to the door of the car.” Officer Hemphill also testified that a woman who was in the car with appellant “got out of the car and came around and was pulling on me and hollering at me, and wanted to know what I thought I was doing.” The officer testified that “She was very much intoxicated,” and that he arrested her. He related that appellant’s speech was slurred; that he had a strong odor of alcohol on his breath; that he searched the car and found two pint bottles of whisky, one empty and the other one partially empty. Witness Hemphill related, again, that appellant was unsteady and staggered when he walked; that when he stood still the upper half of his body would weave back and forth. This witness also related that appellant agreed to take a urine test but when he got to the jail he refused it. The officer then expressed his opinion that the appellant was intoxicated.

Appellant testified as a witness in his own behalf. He denied that he was speeding; ■ that he did not know why the officer stopped him. It was his testimony that he was not drunk but that “four of us had a highball out of this pint.” He also testified: “I * * * Drink very little”; that he had complete control of all of his faculties; that he understood everything the officer was saying to him; that his woman companion was arrested for being drunk but that she was not doing anything; that he felt that a drunk test would prove that he was not drunk and that he asked for one but was not given one.

There are no formal bills of exception, and the informal bills of exception do not reflect error.

The state filed no brief in this case.

Appellant challenges the sufficiency of the evidence to support the conviction. His counsel also urges, by brief, that the state failed to adduce any testimony to corroborate the testimony of the arresting officer.

The trial court was, in this case, the trier of facts as well as law. The court was the exclusive judge of the facts proven, the credibility of the witnesses, and the weight to be given their testimony. While it is true that the arresting officer was the only witness for the state, his testimony needed no corroboration.

Appellant’s counsel filed a brief in which fifty-three cases are cited us in support of appellant’s position. We commend counsel for the orderly manner in which these cases are cited in her brief. Reliance is had upon Toombs v. State, 113 Tex.Cr.R. 602, 21 S.W. 2d 1051, and Thurman v. State, 167 Tex.Cr. R. 21, 317 S.W.2d 737, as authority for reversal of cases where the state’s testimony was adduced by only one witness. We have carefully reviewed both of these cases. In Toombs, the state’s one witness failed to testify that he smelled liquor on appellant’s breath and he failed to express an opinion that appellant was intoxicated. Toombs also had a witness to corroborate his denial of intoxication. In the case at bar the state’s witness did express the opinion that appellant was intoxicated, and the appellant had no witness to corroborate his version of the transaction. In Thurman, supra, two state’s witnesses testified that they did not get close enough to the appellant to smell his breath; neither testified that he was intoxicated. A doctor did testify in Thurman’s case that he treated him at a hospital for his injuries and that he was with him about an hour and a half, during which time appellant was unconscious, and did nothing; that he found a bottle of whisky in appellant’s coat pocket, about half of which was gone. The witness expressed his opinion that, on such occasion, appellant was intoxicated. This court held that the doctor’s opinion was based upon facts which were as consistent with injury as with intoxication.

We do not disagree with the results reached by this court in either Toombs or Thurman, supra. Both cases were reversed for insufficient evidence. We do not think that these cases have the same fact situations as reflected by the evidence in the instant case, and they do not support appellant’s position. Appellant’s contentions are without merit. We overrule them.

Finding the evidence sufficient, the judgment is affirmed.


text:
    Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
    No. 35139.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.

      J. J. Fagan, Duke & Melton, Dallas, for appellant.
    Henry Wade, Dist. Atty., George Milner, Steve Guittard and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the unlawful possession of a narcotic drug, marijuana; the punishment, twenty-five years in the penitentiary.

The evidence shows that Dallas police officers, pursuant to a search warrant, entered an apartment in which appellant was present as a guest; that the apartment was rented by two girls, Billie Yvonne Coleman and Donnie Ray Stringfellow Ogle. We shall not here relate further details other than to state that the officers did retrieve a vial from appellant containing what was later chemically established to be marijuana of sufficient quantity to make one large or two small cigarettes.

Appellant has brought forward for our consideration nine (9) formal bills of exception. The first four pertain to the validity of the search warrant and to evidence obtained from such search and seizure at the apartment. Since the appellant was definitely shown by the evidence, including his own testimony, to be a guest or visitor and not a resident of the apartment, he has no standing to question the validity of the search and seizure or the evidence obtained from such search and seizure. This is a privilege to be exercised only by the one in lawful possession of the premises searched. Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242; Paige v. State, 161 Tex.Cr.R. 571, 279 S.W.2d 344. These four contentions are without merit and are overruled.

Appellant’s bills of exception 5, 6, 7, and 8 complain of the action of the trial court in admitting certain judgments showing appellant and defense witness, Billie Yvonne Coleman, to have been previously convicted in several causes in two justice of the peace courts in Dallas County of the offense of vagrancy. Appellant’s principal objection to the admissibility of these judgments was that the state failed to establish the identity of the appellant and the witness Coleman as being the same persons as set forth in these judgments. The state has ably briefed the question and has pointed out many authorities to sustain its position that these judgments were admissible. We have diligently reviewed the record. We shall set forth all of the evidence adduced by both the state and the appellant with reference to these prior convictions.

The following testimony was adduced by the state upon cross-examination of the witness, Billie Yvonne Coleman:

“Q Yvonne, I will ask you whether or not you are the same Billie Yvonne Coleman that was convicted in Cause No. 2268, in Judge Glen Byrd’s Court, on June 23> 1959, for the offense of vagrancy, to-wit, then and there being a common prostitute? * * * A No, I have never been in Glen Byrd’s Court.”

The question was restated, as follows:

“Q Were you convicted in Cause No. 2268 on June 23rd of 1959, of being then and there a common prostitute, for the offense of vagrancy?

The witness replied: “No.”

The record reflects several objections by appellant’s counsel at this juncture, among them being that it was not a proper question and that this was not the best evidence. The court overruled the objections and then inquiry was made of this witness about another offense. The state asked:

“Q All right. Are you the same Billie Yvonne Coleman that in Cause No. 2274 in Judge Glen Byrd’s Court, was convicted of the offense of vagrancy, to-wit, being then and there a common prostitute?”

Objection was then taken in the form of a general objection, with the statement by appellant’s counsel:

“Shall we just have a full bill to this, so that we won’t have to obj ect to each question ?”

The Court responded: “Yes.”

This line of questioning continued as to several other offenses of vagrancy, the witness responding that she had not been convicted and had never pleaded guilty.

The appellant, while a witness in his own behalf, was then asked upon cross-examination if he had pleaded guilty of the offense of vagrancy, to-wit, associating with and receiving aid from known prostitutes, on several occasions in two different J. P. courts. Objections were taken, overruled, and the witness denied the prior convictions.

The state then adduced testimony from the witness George Hamilton, the clerk of Justice of the Peace McBride’s court, over objections by the appellant. The question was asked:

“Q All right, the judgment shows a conviction for what offense?”

The answer was: “Vagrancy.”

Further, the state inquired:

“Q All right, does it show there which subsection of the vagrancy statutes Virgil John Etchieson was filed on for ?” A Not here, no sir.”
“Q Does that show on this pink complaint here? A Yes.” (Emphasis supplied.)

The state then inquired about another prior conviction for the offense of vagrancy, and the witness Hamilton replied that the judgment reflected that the defendant’s name was Virgil John Etchieson and that he pleaded guilty to the offense of vagrancy. The state then inquired of the witness Hamilton about several offenses of vagrancy involving a person by the name of Billie Yvonne Coleman. It is shown from the record that the question asked by the state was, in effect, if the judgment reflected that she was convicted of the offense of vagrancy, and the witness replied: “Yes, sir.” This witness testified that he had never seen the appellant and that he did not know Billie Yvonne Coleman.

Evidence was then adduced by the state from the witness Mrs. Evelyn Smith, shown to be the clerk of Judge Glen Byrd’s court. Mrs. Smith was first asked about a judgment showing a conviction against a defendant by the name of Virgil John Etchie-son, the question asked being: “And the offense?” to which question she replied: “Vagrancy.” The state then inquired:

“Q All right, by looking at that can you tell what section of the vagrancy statute the case was filed under ?
A No, sir.”
“Q You would have to look in the jacket, is that correct? A “Yes, sir.”

The state then apparently attempted to introduce a slip or something to more ■specifically show the subsection of the va■grancy statute, for the state’s counsel stated: “We wish to offer this to show the subsection.” Objection was then taken by appellant and sustained by the court. This witness was then asked about another judgment:

“Q All right. How about 7131? A Billie Yvonne Coleman.”
“Q Does the judgment show a conviction on her? A Yes, it does.”
“Q And the offense please? A Vagrancy.”

The state then made inquiry about two other judgments showing convictions for the offense of vagrancy, involving a defendant by the name of Billie Yvonne Coleman, and the witness responded that the judgment records disclosed convictions for the offense of vagrancy. This witness also testified that she did not know either the appellant or Billie Yvonne Coleman.

The appellant then developed testimony showing that there were two Virgil John Etchiesons in Dallas County.

While there may be merit in viewing this case from the standpoint of the admissibility or inadmissibility of the evidence relating to the prior convictions, as briefed by the appellant and the state, on the question of whether or not it was necessary to identify the appellant and the witness, we think that, properly, these prior convictions for the offense of vagrancy should be viewed and tested by the rules of admissibility of evidence showing prior convictions for offenses involving moral turpitude. The closest the state came to showing any subsection of the vagrancy statute was the reference by the witness Hamilton to the “pink complaint,” but the “pink complaint” was not entered in the evidence, and it is not before us. The line of questioning pursued by the state, at the time questions were being asked appellant and the witness Coleman, was framed in such manner as to elicit the desired and necessary information to show the subsection of the vagrancy statute, for the state did inquire if the judgment showed a conviction for the offense of vagrancy, to-wit: being then and there a common prostitute, and for the offense of vagrancy, to-wit: associating with and receiving aid from known prostitutes. These questions were actually suggestive, opinionated, conclusive questions, but they were answered in the negative.

At no other place in the entire testimony in its effort to impeach these witnesses did the state show any prior convictions for any offenses other than vagrancy.

The vagrancy statute is set forth as Art. 607, Vernon’s Ann.P.C. This statute states that “The following persons are and shall be punished as vagrants, viz. * * and then lists twenty-one (21) distinct categories or sections by way of classifying the persons amenable to this act, among them being persons known as tramps, persons leading an idle, immoral, or profligate life, who have no property to support them, and who are able to work and do not work; persons able to work who have no visible means of support; habitual loafers and loiterers, persons trading or bartering stolen property; every common gambler, gypsies, beggars, every common prostitute, every able-bodied person who lives without employment or labor, and who has no visible means of support. And then, after enumerating three other categories, the statute sets out:

“All male persons who habitually associate with prostitutes, or habitually loiter in or around houses of prostitution, or who, without having visible means of support, receive financial aid or assistance from prostitutes.”

This statute then enumerates in the four subsequent sections additional acts involving prostitution and prostitutes, and defines “prostitution.”

45 Tex.Jur. 104, Section 243, states that crimes that involve moral turpitude, so as to make a conviction or charge of them available as impeaching matter, include the following offenses: any felony; keeping a disorderly house, being a common prostitute, or being an inmate of a house of ill-fame, and other enumerated offenses.

This court held in Ellis v. State, 56 Tex. Cr.R. 14, 117 S.W. 978, and Neyland v. State, 79 Tex.Cr.R. 652, 187 S.W. 196, that a conviction for vagrancy was inadmissible for purposes of impeachment because the offense did not involve moral turpitude.

In McIntosh v. State, 91 Tex.Cr.R. 392, 239 S.W. 622, the rule thus broadly stated in Ellis, supra, is modified to the extent that if it be shown that the vagrancy conviction or arrest was for that form of vagrancy consisting of being a common prostitute or inmate of a house of prostitution, it will be held to involve moral turpitude.

This court held in Steele v. State, 94 Tex.Cr.R. 345, 251 S.W. 222, page 224, that the rule laid down in the McIntosh case, supra, does not hold good as to vagrancy convictions dependent upon proof of things other than prostitution. In the Steele case, the appellant had taken the stand in his own behalf and he was asked upon cross-examination if he had not been arrested and had not paid twenty-five or thirty fines within the last two years for vagrancy under assumed names. When the appellant denied that he had, an officer was then allowed to testify, over objection that the offenses inquired about did not involve moral turpitude, that he had arrested appellant or had been in company with others who arrested appellant on three or four occasions, and that he had pleaded guilty to vagrancy under an assumed name. This court then said:

“Examining the impeaching testimony of the officer in the matter now before us, it is not made to appear that the vagrancy to which appellant pleaded guilty, as asserted by the officer, could be admissible as impeaching testimony.”

Steele’s case was reversed, the court stating: “We are unable to say that the error was not of a character prejudicial.”

We are aware of the well-settled rule that, in criminal cases, a witness may be impeached by a showing that, at some time previously, he had been convicted of a felony or offense involving moral turpitude. 45 Tex.Jur., p. 101, sec. 240. We are not aware, however, of any rule that would allow a witness to be impeached, as was done by the state in the case at bar.

We feel that the learned trial judge fell into error in admitting the various prior judgments of convictions without evidence to establish that appellant and his witness were the defendants therein and without first requiring the state to establish the subsection of the vagrancy statute under which they were had, in order to properly establish these offenses as ones properly coming within the terms of the classification of offenses involving moral turpitude.

Although the appellant’s counsel never at any time made a specific objection to the admissibility of the prior convictions for the offenses of vagrancy because they had not been shown to be ones involving moral turpitude, we think that the objections which were made to the prior judgments were sufficient to apprise the court of their admissibility. Fowler v. State, Tex.Cr.App., 352 S.W.2d 838, syl. 5, pp. 840, 841; Xanthull v. State, Tex.Cr.App., 358 S.W.2d 631.

In view of our disposition of this case, we find it unnecessary to express an opinion upon the argument complained of by state’s counsel. Upon another trial, this incident will doubtless not arise.

From what we have said, we feel that the effectiveness of the testimony of the appellant and the witness Coleman and its credibility was substantially lessened and that the appellant did suffer prejudicial harm by the admission of the various judgments showing prior convictions.

The judgment is reversed and the cause is remanded.


author: MORRISON, Judge.

text:
    Tommy BARTON, Appellant, v. The STATE of Texas, Appellee.
    No. 34965.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Miller & Miller by Louis Dayne Miller, Graham, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is forgery; the punishment, two years.

At the outset, we observe that there were at least three material variances between the indictment and the purportedly forged instrument which was introduced in evidence. The trial court overruled the objection to the introduction of the instrument and later declined to withdraw it from the jury’s consideration. In this he fell into error. Recently, in Williams v. State, 164 Tex.Cr.R. 545, 301 S.W.2d 107, we said:

“Where the instrument alleged to be forged is set out in the indictment according to its tenor the writing offered in evidence must conform thereto with almost minute precision. Branch’s Ann.P.C.2d Ed., Sec. 1588, and cases cited.”

See also Webb v. State, 39 Tex.Cr.R. 534, 47 S.W. 356, and 25 Tex.Juris.2d, Sec. 65, p. 585, note 12.

The injured party testified that one Jerry Fields came to his filling station in the city of Olney, told him his name was Jerry Cook and he wanted some gasoline, but that he refused to extend him credit. He stated that Fields later returned with appellant, whom he represented to be his oil field boss or driller, a Mr. Hall. He stated that upon appellant’s assurance that he would stand good for the gasoline he sold Fields $5.77 worth of gasoline and oil and that Fields signed the ticket for the same with the name James Cook. He stated that appellant was present at the time the ticket was made and the name signed thereto. In brief, this is the State’s case.

Appellant, testifying in his own behalf, stated that he was in Olney on the day in question attending his wife who was a patient in the hospital; that Fields, whom he had known for some time, came to the hospital and asked that he accompany him to the filling station and vouch for him; that he did so and “stood good for Jerry Fields gasoline.” He denied that he was introduced as Mr. Hall and stated that he left the station before the ticket was prepared and signed. He stated that he did not know Jerry Fields was going to sign the name James Cook to the ticket or that he did so. Requested charges Nos. 2, 3 and 9 would have instructed the jury to acquit unless they found that appellant knew Fields was going to sign a name other than his own to the ticket. Our able State’s Attorney submits that such a charge or one of similar import should have been given, and we agree. It is well settled that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence, even though such issue be raised by his testimony alone. Patterson v. State, 164 Tex.Cr.R. 121, 297 S.W.2d 183, and the cases there cited. See also 31 Tex.Juris.2d, Sec. 108, p. 656.

During the course of the trial, the State introduced evidence that Fields had, prior to the instant trial, been convicted for the same offense and was serving his sentence. This was clearly inadmissible, and the court erred in failing to respond to appellant’s motion to withdraw the same from the jury’s consideration. In Bacon v. State, 147 Tex.Cr.R. 605, 183 S.W.2d 177, Judge Hawkins, speaking for the Court, said, “It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted.” See also Martin v. State, 151 Tex.Cr.R. 212, 206 S.W.2d 254.

For the errors pointed out, the judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Ex parte Luis BARRERA.
    No. 34966.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Jones & Sternberg by Samuel R. Jones, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant stands charged by indictment of rape by force, and brings this appeal from an order of the district judge refusing to grant him bail.

At the hearing, the prosecutrix, a sixty-eight-year-old widow whose husband had died just three days before the offense was committed, testified that she lived alone and that on the Sunday night in question a man entered her home and committed an assault and rape upon her. She related that in the assault the man produced a knife, held it to her back, and threatened to stab it through her; that he “drug her from one room to another,” ripped off her clothes, and had intercourse with her more than once.

It was shown that, following his arrest, appellant made a written statement to the officers in which he confessed his guilt of the offense.

In keeping with the rule followed by this court in cases of this character, we refrain from a further discussion or comment upon the evidence but express the conclusion that the trial judge did not abuse his discretion in denying bail.

The judgment of the trial court refusing bail is affirmed.

Opinion approved by the Court.


author: DENTON, Chief Justice.

text:
    COLLINGSWORTH COUNTY, Appellant, v. Hugh GROGAN, Appellee.
    No. 7181.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 22, 1962.

      R. L. Templeton, Wellington, for appellant.
    Guy Hardin, Shamrock, for appellee,
   DENTON, Chief Justice.

This is an action instituted by Collings-worth County seeking a permanent injunction to restrain Hugh Grogan from closing or attempting to close an alleged public Toad which passes through the property owned by Grogan. After granting a temporary injunction, the trial court, after a hearing before the court, dismissed the injunction and the County has duly perfected this appeal.

The sole question to be decided is whether or not the roadway across Grogan’s property became a public road by prescription. It was stipulated by the parties that the road had been used by the public for more than twenty years, and it is undisputed the County maintained the road from time to time.

It is well settled in this state that a public right-of-way by prescription can be established only by showing an uninterrupted use by the public under an adverse claim of right. The use of roads by the public as a roadway with the acquiescence of the owner, will not ripen into a prescriptive right, no matter what period of time such use may continue, unless the evidence shows that such use was by claim of right adverse to the landowner, of which adverse claim the landowner has notice. Ladies’ Benevolent Society of Beaumont v. Magnolia Cemetery Co., (Tex.Com.App.), 288 S.W. 812; Othen v. Rosier, 148 Tex. 48S, 226 S.W.2d 622; Schultz v. Shatto, ISO Tex. 130, 237 S.W.2d 609; O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878.

The record contains no evidence that the use of the roadway in question was adverse to the claim of Grogan. To the contrary, a former County Commissioner testified the road was used by permission of Grogan and his father before him. A former County Judge, who was in office at the time the road was secured, testified the road was to be used as a temporary route, with the permission of the landowner. Grogan substantiated this testimony, and further told of his dealings with the individual County Commissioners and the Commissioners’ Court in which he sought to have the County open a road around his property which had been laid out many years previously. Largely due to financial reasons, the proposed road around the Grogan property was never completed. It is our opinion that under the record and the authorities cited above, the use of the road by the public did not ripen into a prescriptive right. The County was therefore not entitled to the injunction prayed for.

The judgment of the trial court is accordingly affirmed.


author: NORTHCUTT, Justice.

text:
    Fred B. THOMPSON, Appellant, v. MIDWESTERN INSURANCE COMPANY and Tri-State Insurance Company of Tulsa, Oklahoma, Appellees.
    No. 7184.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1962.
    Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellant.
    Clayton, Martin & Harris, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a workmen’s compensation case. The original claim in this case was filed by an attorney from New Mexico. The same attorney filed a case in the State of New Mexico and at the same time wrote the Texas Industrial Accident Board informing and advising the Board that Mr. Thompson, appellant here, did not wish to have the Board hear or adjudicate his claim. The case filed in New Mexico was dismissed for lack of jurisdiction. A hearing was had by the Texas Industrial Accident Board and after such hearing, entered the following order; “The Board finds that there is no valid and subsisting notice of injury and claim for compensation presently before the Texas Industrial Accident Board. Therefore, this Board is without jurisdiction and no further action will be taken.”

From such order the appellant gave notice of appeal in due time and filed his law suit in the 47th District Court in and for Potter County, Texas. The appellees here, defendants in the trial court, filed their answer which included a motion to dismiss on the basis that the trial court had no jurisdiction. The trial court sustained the motion and dismissed the case for want of jurisdiction. From this order the appellant perfected this appeal.

The sole question here involved is whether the order entered by the Industrial Accident Board was such a final order from which an appeal to the district court would lie and if the trial court erred in dismissing the appeal for want of jurisdiction.

We do not know whether the Board entered its order because appellant had not claimed an accident or that appellant had abandoned his claim and filed another claim, but under any theory we do not believe the trial court had jurisdiction to determine the amount of compensation to be awarded an injured employee until such issue has first been passed by the Industrial Accident Board, Tally v. Texas Employers’ Ins. Ass’n, 129 Tex. 134, 102 S.W.2d 180; Hartford Accident & Indemnity Co. v. Christensen et al., Tex.Civ.App., 223 S.W.2d 45 (reversed by Sup.Ct., 149 Tex. 79, 228 S.W.2d 135 but not as to the point here involved) and the many cases there cited.

It is stated in the case of Cordova v. Associated Employers Lloyds, Tex.Civ.App., 2S0 S.W.2d 945 (writ refused) as follows:

“We overrule the points of error. The Board’s approval of a compromise agreement is not an award of compensation, nor is it an order denying compensation. The district court has no jurisdiction to pass upon a claim for compensation unless its jurisdiction is invoked by an appeal from an order of the Industrial Accident Board, either denying or awarding compensation. Therefore, the appellant was not entitled to prosecute his two suits for compensation without having brought an original proceeding in a court of competent jurisdiction to set aside the compromise settlement agreement. Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497,87 S.W.2d 1081; [89 S.W. 2d 1116] ; Traders and General Ins. Co. v. Bailey, 127 Tex. 322, 94 S.W.2d 134; Texas Employers Insurance Association v. Kennedy, 135 Tex. 486,143 S.W. 2d 583; Caffey v. Aetna Casualty & Surety Co., Tex.Civ.App., 219 S.W.2d 530; 45 Tex.Jur., p. 702, sec. 238, and authorities cited in footnote 4.”

The court further stated as follows:

“As amended, appellant’s petition was still an action for compensation. The compromise settlement agreement could only be set aside by an original proceeding in a court of competent jurisdiction. The court could not, in one suit, pass on the claim for compensation and the claim for cancellation of the compromise settlement agreement. See above authorities. We overrule the point of error.
“If the appellant has valid grounds upon which to set aside the compromise settlement agreement of December 27, 1950, he still has available to him the right to file an original proceeding in a district court to set aside said agreement.
“The trial court having correctly held that it had no jurisdiction to try appellant’s compensation claim until and unless the compromise settlement agreement is set aside, we affirm the judgment.”

We believe the Industrial Accident Board' was authorized to believe and hold since appellant’s attorney had informed the Board that appellant did not wish to have the Board hear or adjudicate his claim; that the claim had been abandoned and it had no further jurisdiction in the matter. There was no original proceedings brought to have the Board take jurisdiction and pass upon the compensation question, and the trial court had no jurisdiction to pass upon a claim for compensation until the Board had either denied or awarded compensation. The holding of the Board that it did not have jurisdiction is merely stating it had no right to act and in no manner passed upon the question of compensation. The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Minnie Lee PRICE, Appellant, v. Lee KITTREDGE, Appellee.
    No. 16360.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 19, 1962.

      Frank R. Graves, Fort Worth, for appellant.
    Donald C. Bubar and Melvin F. Adler, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The question is whether the petition of Minnie Lee Price, plaintiff below, stated grounds which, if established by evidence, would entitle the submission of her cause to a jury or other fact finder for determination. Defendant Lee Kittredge claims that it did not, and filed special exceptions to the allegations recited in plaintiff’s petition which purported to state a cause of action. These special exceptions, or a substantial portion thereof, were sustained by the trial judge whereupon pleadings were left in such state that it is not to be disputed that the remainder, even if proven, would not entitle plaintiff to a judgment. Plaintiff refused to amend. Upon refusal her cause of action was dismissed. From this order the appeal was brought to this court.

Judgment affirmed.

In the early part of 1957, Mr. and Mrs. Springer owned certain real estate in the City of Fort Worth. They engaged the defendant, a real estate broker, to obtain a purchaser of the property. They advised him the terms upon which they would be willing to sell and agreed upon a consideration to be paid defendant if he was successful. According to the most liberal interpretation of the pleadings of the plaintiff, even in respects immaterial to any right of complaint on her part, defendant did obtain a purchaser who was ready, willing and able to buy the property upon the terms and conditions prescribed by the Springers. Although this was the fact, the defendant agreed with said prospective purchaser, the plaintiff, to take a lower down-payment than that prescribed by the Springers, defendant’s principals, and did negotiate matters so that the Springers conveyed the title to their property to defendant, who then entered into an executory contract of sale of the property to the plaintiff. Under said exec-utory contract plaintiff paid $495.00 in cash (rather than the $1,000.00 down-payment the Springers had prescribed at time they employed defendant) and agreed to make payments of $50.00 per month on principal and interest until a total amount of $5,830.46 had been paid (rather than the total amount of $5,750.00 which the Springers had prescribed at time they employed the defendant as their agent).

Plaintiff entered into possession of the premises in early 1957 under the contract with defendant. She had continued to pay the monthly consideration, plus $7.50 per month agreed to be credited upon taxes and insurance, until the month of November in 1960. On or about November 24, 1960, a fire occurred which substantially destroyed the property. Disagreements or disputes arose thereupon which culminated in this lawsuit. It should be noted that defendant had agreed to convey to plaintiff the legal title to the property by way of a warranty deed upon receipt of the entire balance of the purchase price. It should also be noted that the defendant obtained loans in his purchase of the property from the Springers which obligated him to pay only 6% and 7% on the unpaid principal balance owing, while he was receiving 8% interest from the plaintiff under his contract with her.

Allegations of these facts in plaintiff’s petition do not state a cause of action for fraud against the defendant of which plaintiff would be availed right to any relief. The allegations of the petition might be sufficient to establish a justiciable cause of action in behalf of the Springers, but they are not parties to the suit and claim nothing of defendant. That there was any wrongdoing between defendant and the Springers is not to be presumed, and even if existent would not necessarily create any right of complaint in plaintiff.

Nor does the fact that the Legislature enacted the Real Estate License Act, Vernon’s Ann.Texas St. Title 113A, Art. 6573a, benefit the plaintiff by supplying a ground for her asserted cause of action not existent under the common law. She cites the case of Zichlin v. Dill, 1946 (Florida Supreme Court), 157 Fla. 96, 25 So.2d 4, as authority for the contention that since the Act affords a real estate dealer licensed thereunder a monopoly to engage in the business, and since it is requisite that a dealer so licensed have good character and deal fairly, he owes a duty to the buyer as well as to his principal. Undoubtedly the State of Florida has an Act of some similarity to that of Texas, but nothing which transpired before the trial court required it to take notice thereof nor afforded it opportunity to take notice thereof.

In the Zichlin v. Dill case a real estate broker bought his principal’s property for $4,500.00 with use of the purchaser’s money and on the same day sold it to the purchaser for $5,500.00, after having advised the purchaser that the property could not be purchased for less than $5,500.00. The purchaser discovered the facts and sued for the return of $1,000.00. The holding of the court was that the purchaser was entitled to maintain the suit. The court founded the decision upon the right of the purchaser to maintain his suit against the real estate broker upon the Florida Statute, though it would appear that the same result would have been reached under the common-law principle that a person who knowingly interferes with the interests of another by tor-tious means directed toward a third person (as the broker’s principal in the Zichlin case) deprives the other of property which he would have otherwise received and for recovery of which he would have a cause of action. See Restatement of the Law, Restitution, ch. 7 “Benefits Tortiously Acquired”, sec. 133 “Property Tortiously Acquired From Third Person At Another’s Expense”.

The facts alleged in plaintiff’s petition in the case under consideration to which exceptions were sustained do not raise the issue discussed in the Zichlin case. The facts averred show no knowing interference by defendant with the plaintiff’s interests by tortious means directed toward anyone.

Furthermore, nothing in the provisions of the Texas Real Estate License Act would amplify any common-law right of plaintiff and thus afford her a right of action against the defendant under the circumstances alleged.

Additionally, we believe that plaintiff’s action could not be maintained without offer or tender of the property and the reasonable compensation for the value received in its use during the period of her possession. The relief sought is equitable rescission and a condition of such remedy under the facts of the instant case would be plaintiff’s offer to do equity.

Judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    TEXAS STATE BANK, Appellant, v. H. M. COSNAHAN, Appellee.
    No. 10997.
    Court of Civil Appeals of Texas. Austin.
    Oct. 24, 1962.
    Rehearing Denied Nov. 14,1962.
    Joseph R. Darnall, Jr., Austin, for appellant.
    John D. Reed. Austin, for appellee.
   ARCHER, Chief Justice.

This is a suit for trial of right of property as to the ownership and possession of a mobile home.

The defendant answered by general denial, and a motion to dismiss on the grounds that the plaintiff had failed to file a claimant’s bond and that the petition incorporated both a trial of right of property and an action for damages.

On trial the court entered a judgment in favor of plaintiff for the title and for writ of possession to the mobile home, but did not allow any damages.

The appeal is founded on the error of the court in overruling the motion to dismiss because the plaintiff had not filed a claimant’s bond as prescribed by Rule 718 T.R. C.P., and because the plaintiff alleged a cause of action for damages with his action for trial of right of property.

We do not believe that the court erred in not dismissing the plaintiff’s petition. The evidence was sufficient to support the court’s judgment that the mobile home was the property of appellee.

At the time of filing of claimant’s pleadings, the mobile home in controversy was in possession of the defendant by virtue of a replevy bond, after the home had been seized by a sequestration writ in another suit in which the defendant Bank was the plaintiff and Roy L. Humes, Jr., et al. were defendants. No useful purpose could have been accomplished by the filing of a bond, since the mobile home was in the possession •of the Bank at all times pertinent to this suit, and at the time the trial was had.

The pleadings included an action for damages, but the plaintiff, Cosnahan testified that he only sought possession of the mobile home, and no damages were allowed, and such inclusion of the action for damages became harmless.

We have considered Rule 718 and other related Rules as well as Carter v. Carter, 36 Tex. 693 (1872) and Sanders v. Farrier, Tex.Civ.App., 271 S.W. 293.

The judgment of the Trial Court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Aaron Clifton JONES, Appellee.
    No. 4035.
    Court of Civil Appeals of Texas. Waco.
    Oct. 25, 1962.
    Rehearing Denied Nov. 15,1962.

      Dawson & Dawson, Joe D. Meroney, Corsicana, for appellant.
    Fulmer, Fairchild & Badders, Nacogdo-ches, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment of total and permanent disability in a workmen’s compensation case. Plaintiff was injured in the course of his employment when he fell from a derrick to the ground. He expended $190. for doctor’s care and treatment. The issues as to extent and duration of plaintiff’s disability were very close, and highly contested. The testimony of plaintiff, plaintiff’s wife, and Dr. Mahon sustain the verdict, while Dr. Frie-burg’s testimony is in direct conflict therewith.

The 1st 8 points complain of improper argument of counsel for plaintiff. Plaintiff’s counsel, in his rebuttal (and final) argument, said in part:

(1)“He (attorney for defendant) didn’t like it when I referred to Dr. Frieburg’s connection with the Insurance Company. Oh, it burnt him up and he became emotional in front of you 12 people because I did, I had such an audacity I had to do it. Can you imagine such a mean man as I am to bring it out. If I hadn’t brought it out you would never have known it, would you? I didn’t enjoy it, but he is an old hand at the job, that Jew is. He knew all about what was coming. He knew he had it coming too.'
“ * * * he is the insurance, he1 is the swearing man. Sat over there ready and you saw that color of blue he had change its color to a different, shade of blue when he tried to emphasize that good honest man here,, innocent of everything he says is believable and dependable, and he was. fudging. He was getting ready for court, he was pretending he couldn’t stoop over when he could. He is just plain lying and a liar will steal, nobody likes a thief * *
“Is he a good doctor or is he looking for $250. an hour on the witness stand? And trying to keep his name on the payroll of these insurance companies that call him from time to time and send them there every day in groups * *

Objection was sustained to the argument contained in the 1st paragraph above, and the jury instructed not to consider same. Objection to argument in the 2nd and 3rd paragraphs above was overruled.

(2)Thereafter, plaintiff’s counsel further argued to the j ary:
“And that is when Frieburg no doubt told them, Brother, you’ve got a baby on your hands and it’s a long time, you had better make up your mind now, because he is not going to get well * *. I can imagine Dr. Frieburg telling them it’s a permanent thing now, 6 months is the deadline, he hasn’t improved. You had better get ready, and they say, Okay, we will just fold up our fist and we will pay high doctors’ bills and high lawyers by the groups and we will just hope we will get a jury down there that will swallow our story * *

Objection to the foregoing was overruled.

Counsel for plaintiff further argued to-the jury:

(3)“I know now, especially you folks who have never done jury service before, appreciate why I so emphasize you must follow what you know the ■evidence to be. Especially since you have heard, these distortions and misrepresentations of the evidence."
* * * I am saying it is an insult to your intelligence and to your veracity to try to make you believe things you have heard here when they have misquoted them."
" * * * I just wonder if he (counsel for defendant) could tell the truth if he tried to."

Objections to the 1st two items above were overruled; the Trial Court of its own motion instructed the jury not to consider the last item. Immediately following such -instruction plaintiff’s counsel said:

“Well I apologize and withdraw that, but he jumps up and makes a statement which I know is incorrect when I have a right to the floor. If he wants to do it that way, well, that’s his line of practice. I don’t care, I am going to do what I think is right.”

The Trial Court instructed the jury to disregard the foregoing statement, whereupon plaintiff’s counsel then said:

“He misrepresents every witness except Mrs. Jones and after having made such a miserable failure * * *.”

The foregoing was objected to, but objection was overruled.

a case is reversed because ■of argument of counsel, it must be improper and it must be such as to satisfy the .review-.reviewcourt that it was calculated to and prob-probdid cause the rendition of an improper judgment in the case. Whether the im-imof the argument probably in-inthe jury unfavorably to appellant is to be determined as a matter of our judgment in the light of the record as a whole. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596.

[2] to entitle one to a new trial because of improper argument, it must be shown that objection was made and over-overat the time the argument was made, and it is only when the probable harm or the resulting prejudice cannot be eliminated or cured by retraction or instruction that a new trial will be awarded in the absence of timely objections.

The argument quoted above was improper. That denominated #1 was an appeal to .racial and religious prejudice in language clear and strong. Moreover, it tied racial and religious prejudice in with the charge that Dr. Frieburg would falsify for money. “Cases ought to be tried in a court of justice upon the facts proved; and whether a party be Jew or gentile * * * is a matter of indifference.” Moss v. Sanger, 75 Tex. 321, 12 S.W. 619, 620.

We think the nature of the argument so inflammatory and prejudicial that its harmfulness could not have been eliminated by retraction or instruction, or both; and that same was reasonably calculated to and probably did result in an improper verdict and judgment, and requires a reversal. Rule 434 Texas Rules of Civil Procedure. Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856.

The argument denominated #2 was calculated to get before the jury new and different evidence, albeit such was evidence of plaintiff’s counsel’s “fancy”. Objection to such argument was overruled. We think the argument improper, and that the Trial Court should have sustained objection to same. Houseman v. DeCuir, 155 Tex. 127, 283 S.W.2d 732.

The argument denominated #3 accused defendant’s counsel of being untruthful, misrepresenting and distorting the evidence, and finally of being incapable of telling the truth. The matter is aggravated by counsel for plaintiff’s repeated comments, after the Trial Court instructed the jury not to consider the offending argument.

From a review of the record as a whole, we think this argument inexcusable and completely unjustified. We think that the jury was probably influenced by this argument, and that by its very nature it was reasonably calculated to cause harm. Lawyers are officers of the court and proper and ethical conduct .requires that there be limitations on the extent to which counsel may go in the injection of improper matters by argument. Texas Emp. Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856; Texas Emp. Ins. Ass’n v. Butler, n. r. e., Tex.Civ.App., 287 S.W.2d 198.

Further, we think the cumulative effect of the improper arguments deprived defendant of a fair and impartial trial, for which additional reason a reversal is .required. Southern Pac. Co. v. Hubbard, 156 Tex. 525, 297 S.W.2d 120.

The judgment of the Trial Court is reversed, and the cause remanded.

Reversed and remanded.


text:
    BROWN SUPPLY COMPANY et al., Appellants, v. S.S. RUSHING et al., Appellees.
    No. 7179.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 22, 1962.
    Rehearing Denied Nov. 26,1962.

      McWhorter, Cobb, Johnson & Cobb, Lub:bock, for appellants.
    Jerome W. Kirby, Littlefield, for ap-pellees.
   DENTON, Chief Justice.

This suit was instituted by S. S. Rushing and some fourteen other individuals and two gin companies against Brown Supply Company and George L. Gallegos for dam■ages allegedly caused by the cutting and repairing of a natural gas line. A jury verdict was returned in favor of the plaintiffs below, and from a judgment rendered on 'this verdict the defendants below have perfected this appeal.

Brown Supply was engaged to install underground concrete irrigation pipe on the Rushing farm. A plastic natural gas line which fed gas to the meters of the plaintiffs ran across the Rushing farm. In order to lay the concrete pipe it was necessary to cut and repair the gas line. It is undisputed Brown Supply, through its agents, agreed to cut and repair the gas line and was paid the sum of Ten Dollars ($10.00) for this additional work. The gas line later leaked at the place it was repaired, and it is this gas leakage that is the ■subject of this suit. The amount of leakage was determined by the difference in •the reading of a master meter and the combined readings of the individual meters ■on the line used by the various plaintiffs. "In response to special issues, the jury found "Brown Supply agreed to repair the gas "line; that the company’s agent failed to •properly repair the line; and that such failure to properly repair the line was the cause •of the gas leakage complained of.

Appellants’ first point complains of the trial court instructing the jury on circumstantial evience on the ground there was no direct evidence upon which an inference could be based, and that such instruction amounted to an instruction that there was such direct evidence. It is not contended that the instruction was incorrect. The general rule is well established that a disputed fact in a civil case may be established not only by direct evidence but also by circumstantial evidence. Winkler v. Craven (Tex.CivApp.), 265 S.W.2d 191 (N.W.H.). Beach v. McKenney (Tex.Civ.App.), 287 S.W.2d 956 (N.R.E.).

Appellants’ position is based on the premise the gas line was repaired in March, 1960, and the leak did not become evident or was not discovered until seven or eight months later; and that there is no direct evidence as to the cause of the leak. We are unable to agree with this contention. Several witnesses, including one whose business was to install underground utility lines, testified that too many connections were used to effect the repair. It is undisputed the break in the line was located at a connection at the top of the gas line as it went over the concrete pipe. There was evidence that five connections were used to repair the gas line when the better practice would have been to use only two. As to whether the actual break was caused by temperature changes, added pressure caused -by the earth settling, or by the gas line being placed too close to the concrete pipe are not inferences or speculations as argued by appellants. They are simply circumstantial evidentiary matters that may be considered by the jury together with the manner in which appellants repaired the line. In our opinion, this circumstantial evidence had sufficient probative force to constitute the basis of a legal inference. Baylor University v. Chester Savings Bank (Tex.Civ.App.), 82 S.W.2d 738 (Writ Refused). Missouri-Kansas & Texas Ry. v. Crouch (Tex.Civ.App.), 273 S.W.2d 466 (N.W.H.). The circumstantial evidence presented was sufficient to satisfy reasonable minds o' their existence. After carefully considering' the evidence presented, we are of the opinion the trial court did not err in instructing the jury on circumstantial evidence. There was direct evidence that the gas line was not correctly repaired. As to what force or forces actually exerted themselves on the line at the point of the break must necessarily be established by circumstantial evidence. Appellees sustained this burden.

Appellants next contend the submission of special issues Numbers 1, 2 and 3 were improper on the ground that they were general issues. The issues inquired if appellants agreed to repair the gas line as a part of the consideration for the installation of the concrete irrigation system; whether appellants failed to properly repair the line; and, if so, was such failure the cause of the gas leakage. Appellees alleged and the case was submitted on the theory of a breach of contract. Cases relied on by appellants are cases in which negligence issues were objectionable for the reason urged here. Such cases are not controlling in the instant case. We are of the opinion, and so hold, the special issues were proper in submitting ap-pellees’ cause of action alleging a breach of contract.

Appellants next contend the alleged cause of action and manner of submission was a violation of the Statute of Frauds, (Article 3995, Vernon’s Ann.Tex.St). That appellants agreed to cut and repair the gas line in order to lay the concrete pipe cannot be disputed. Mr. Rushing testified appellants’ agent Orley guaranteed the gas line would be repaired “right”. We think the facts of this case clearly brings it under the settled rule that where the oral agreement may -by its own terms be fully performed within the year the Statute of Frauds does not apply. Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R. 2d 1045.

Appellants’ next two points of error complain of the trial court’s refusal to submit their requested special issues and' definition which deal with their defense of mitigation of damages and intervening cause. A careful review of the record reveals there is no evidence to support the submission of the mitigation issues. On the contrary, there is evidence the plaintiffs below acted promptly upon discovering the leak and caused the gas to be cut off pending the necessary repairs. The gas was turned on for relatively short periods of time in order to locate the leak, but we cannot say evidence of these acts are sufficient to warrant the submission of the requested issues. Appellants had the burden of proof to establish the fact plaintiffs failed to-mitigate their damages after discovering the leak. Belcher v. Missouri, K. & T. Ry. Co., 92 Tex. 593, 50 S.W. 559. We are of the opinion appellants failed to sustain this burden, and in the absence of evidence to support such issues the trial court was correct in refusing to submit these requested issues.

We have reached the same conclusion relative to the requested issues dealing with intervening cause. To support the submission of the special issue appellants, rely on the sketchy testimony of Mr. Bryant, a salesman for appellants’ company. He saw the gas line at the place it developed the leak after the line had been uncovered. Although he testified he did not see the hole in the line it appeared to be “mashed”. He further testified, “No, I didn’t say anybody went out there and done it, but it was possible that going across it with machinery and stuff, it is possible that it could have been mashed.” This testimony did not have sufficient probative force to constitute a basis for a legal inference. Bryant’s testimony was purely speculative. Baylor University v. Chester Savings Bank, supra. We therefore conclude the trial court was-correct in- refusing to submit this special issue.

The judgment of the trial court is affirmed.