author: GRIFFIN, Justice.

text:
    The STATE of Texas, Petitioner, v. BAKER BROS. NURSERY, Respondent.
    No. A-9086.
    Supreme Court of Texas.
    Feb. 20, 1963.
    Rehearing Denied April 17, 1963.
    Will Wilson, Atty. Gen., Austin, Morgan Nesbitt, Robert G. Scofield and Mitchell D. Stevens, Asst. Attys. Gen., for petitioner.
    Simon & Simon, Fort Worth, for respondent.
   GRIFFIN, Justice.

This is a condemnation suit brought by the State of Texas against Baker Bros. Nursery, a domestic corporation, to condemn 12.246 acres of land out of a 28 acre tract located within Tarrant County, Texas, and the city limits of Fort Worth, Texas. Prop-•cr proceedings were instituted and an appeal taken from the award of the Commissioners to the County Court at Law of Tar-rant County, Texas. On a trial before a jury and in response to the jury’s answers to special issues, a judgment in favor of defendant Baker Bros. Nursery and against the State of Texas, as plaintiff, was awarded as follows: For the value of the land taken for the controlled access highway, $18,369.00; for the difference in value of the two remaining tracts of the original 28 acres, the sum of $4,290.00.

On an appeal by the defendant corporation to the Court of Civil Appeals, the cause was reversed and remanded to the trial .court for a retrial. 357 S.W.2d 163.

The State is the petitioner in this court and complains of the action of the Court of Civil Appeals in holding that the admission of the testimony of the witness Lutz was reversible error.

In the Court of Civil Appeals, defendant had complained of the admission of the testimony of the witness Meacham, but the Court of Civil Appeals found no error in the admission of his testimony. We agree with this holding.

This case was tried in the trial •court prior to our decision in the case of State of Texas v. Oakley (1962) Tex., 356 S.W.2d 909, but the rulings of the trial ■court as to the testimony of the witnesses Meacham and Lutz were in conformity with that opinion. The Court of Civil Appeals recognized that the testimony of these two -witnesses as to comparable sales as a basis for their respective opinions as to the market value of the tract here condemned was properly admitted in view of the fact that the court limited the testimony for the purpose of showing the information and data that they considered in arriving at the market value of this property. As to Lutz, the Court of Civil Appeals held there was no proper limitation on his testimony and therefore it was reversible error to admit this testimony.

In this we hold the Court of Civil Appeals erred. We have read the statement of facts and find the following:

When the State first asked Mr. Lutz if he found any sale of property which he considered as comparable to this (property) “upon which to form an opinion as to the market value of this property?” the following objection was made:

Counsel: “If the Court please, may I make the general objection that the matter of comparable sales and what this witness may have found about comparable sales are not admissible either as a part of his qualification or should he be permitted to testify to it as being immaterial, irrelevant, and hearsay testimony. In as much as Your Honor ruled on it before I understand Your Honor’s ruling.”
The Court: “You may have a running bill.”
Counsel: “That I might have a running bill and then I won’t have to be jumping up here.”
The Court: “Overruled.”

We have been unable to find any ruling of the court previously on objections to Lutz’ testimony. We have read the testimony of witness Meacham — who preceded Lutz on the witness stand — and find objections as follows: “If the Court please, may it be considered that my objection to the comparable sales or other sales is immaterial and irrelevant and goes to all this line of testimony without my having to repeat the objection?” The Court: “Yes.”

Counsel for the State then said:

“Your Honor, please, sir, I want to offer this in evidence for the limited purpose of showing what the appraiser considered in arriving at his opinion of the value and it’s not offered as direct original evidence of the facts stated therein; it’s a matter of showing the basis of his opinion.”
Defendant’s Counsel: “It doesn’t make any difference what it is offered for; it’s either admissible or not admissible. It’s not admissible and if he had the wrong information on this, which he well might have, then the testimony he is about to give this jury would he wrong.”
The Court: “Overrule it and I permit it for the limited purpose showing the information data that he considered.”

Presuming these objections are the prior ruling of the court referred to by defendant’s counsel in his quoted objections to Lutz’ testimony, they show the trial Judge was properly limiting this character of testimony. That this is true is shown by the following proceedings at the beginning of the defendant’s counsel’s cross examination of the witness Lutz:

COUNSEL: “If the Court please, in order that I may know my record is correct, I am going to move to strike all the testimony of this witness as relating to comparable sales on the ground as hearsay, immaterial and irrelevant.”
THE COURT: “Well, I admit it for the limited purpose of showing the information and data that he considered in arriving at the market value of this property.”
COUNSEL: “I still move to strike.”
THE COURT: “Overruled.”

We hold that the trial court properly limited Lutz’ testimony and that this testimony was admissible within the limits as set out in Oakley.

The Court of Civil Appeals further held that it was error for the trial court to sustain a motion made by the State in advance of the trial, which not only sought to suppress any reference by counsel to, or any evidence of, the direction of the flow of travel upon the proposed limited access highway resulting from the condemnation, but further to likewise suppress reference or evidence of any circuity of travel occasioned by such highway. This was not a case where all access to the new highway was denied, but a case where each remaining tract had access to the highway through the frontage roads alongside and parallel to the highway. Under these circumstances, there was no error by the trial court in sustaining the State’s motion to suppress.

In the case of Pennysavers Oil Company v. State, (1960, Tex.Civ.App.), 334 S.W.2d 546, writ refused, it was said:

“The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. City of San Antonio v. Pigeonhole Parking of Texas, Inc., Tex., 311 S.W. 2d 218; Grapotte v. Adams [130 Tex. 587, 111 S.W.2d 690], supra; State, By and Through State Highway Commission v. Burk [200 Or. 211, 265 P.2d 783] (Oregon) supra.”

See also Holbrook v. State (1962, Tex. Civ.App.) 355 S.W.2d 235, writ refused, n. r. e.

In the Court of Civil Appeals, defendant had an assignment of error that the trial court erred in refusing to submit separate issues as to the before and after value of the two severed tracts remaining by virtue of the construction of the highway. In State v. Oakley (1962, Tex.) 356 S.W.2d 909(3), we decided a similar contention adversely to the present claim of defendants. There was no error in the trial court’s refusal to submit separate issues as to each of the two remaining tracts.

In the Court of Civil Appeals, defendant also claimed that the trial court erred in refusing to admit in evidence a letter from the Mayor of the City of Arlington to Mr. J. B. Baker, Jr. of Baker Bros. Nursery, Inc. In this letter the City of Arlington proposed to permit defendant to take water from Lake Arlington to irrigate the 28 acres of land in controversy under certain conditions and with the right of the City to withdraw this permission at any time. The record shows that in order for defendant to have this irrigation water available, it was necessary to have permission from landowners whose land lay between the subject property and Lake Arlington. There was no showing of easements across these intervening lands in favor of defendant, also no showing of a binding contract between defendant and the City of Arlington which gave defendant the right to use water from the lake. There was no error in refusing to admit this letter.

By various other assignments in the Court of Civil Appeals, defendant complains that certain of its witnesses were not permitted full freedom to testify that the tract of land in question was best suited for use as a nursery and the establishment of a retail sales stand where their nursery products could be sold. There is testimony from defendant’s witness that no such sales could be made at the time of the trial, and that it would be two to four years in the future before the nursery stock on the land would be developed enough to justify the establishment of a retail sales outlet. There was further testimony that this property was zoned against retail sales outlets. There was no testimony of probable change in zoning regulations. In City of Austin v. Cannizzo (1954), 153 Tex. 324, 267 S.W.2d 808(7-9), we said: “If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted.” Based on the record before him, we cannot say that the trial Judge erred in excluding the testimony.

See also Lower Nueces River Water Supply Dist. v. Sellers, (1959, Tex.Civ.App.) 323 S.W.2d 324(10), writ refused n. r. e.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. Freddie Lee KING, Respondent.
    No. A-9349.
    Supreme Court of Texas.
    April 3, 1963.

      Henry Wade, Dist. Atty., Dallas, John J. Orvis, Asst. Dist. Atty., for petitioner.
    Yarborough, Yarborough & Johnson, Dallas, Roger L. Turner, Dallas, with above firm, for respondent.
   STEAKLEY, Justice.

On November 24, 1961, a corporation court of the City of Dallas made an affirmative finding that Respondent was an habitual violator of the traffic law. Pursuant thereto, on December 6, 1961, the Department of Public Safety ordered Respondent’s driving privileges suspended for twelve months. Respondent appealed to the County Court at Law No. 2 of Dallas County pursuant to Section 22(c) of Article 6687b, Vernon’s Ann.Civ.St. Both Respondent and Petitioner filed motions for summary judgment. Petitioner’s motion was granted and Respondent appealed. The Court of Civil Appeals reversed and remanded the case, holding that Respondent was entitled to a jury trial on the question of his guilt and, if found guilty, on the question of the length of time his license would be suspended. Tex.Civ.App., 362 S.W.2d 131. The Court of Civil Appeals recognized that our courts have upheld the applicability of the summary judgment procedure in appeals involving the habitual violator issue (citing Smith v. Texas Department of Public Safety, Tex.Civ.App., 352 S.W.2d 958, and cases cited), and said:

“On a subsequent trial of this case there will likely be an instruction that the notices of conviction when introduced was sufficient evidence to show that appellant was guilty of these offenses leaving only the fact question for the jury of the length of the suspension of King’s license, not to exceed one year.”

We granted writ of error to review the holding that the appeal provisions of Section 22(c) require a determination by the court or jury of the license suspension period.

As observed in the concurring opinion in the Court of Civil Appeals, the constitutionality of Section 22 as amended in 1959 is not raised by the parties.

The Legislature in 1959 amended Section 22 of the Drivers’ Licenses Act of 1941 by adding Section 22(c). Section 22(a) was re-enacted in full in the 1959 amendment. This was also true of Section 22(b), except for the addition of a definition of the term “habitual violator” and a ninth reason for license suspensions.

Sections 22(a) and 22(b) provide as fol-ows:

“(a) When under Section 10 of this Act the Director believes the licensee to be incapable of safely operating a motor vehicle, the Director may notify said licensee of such fact and summons him to appear for hearing as provided hereinafter. Such hearing shall be had not less then ten (10) days after notification to the licensee or operator under any of the provisions of this Section, and upon charges in writing a copy of which shall be given to said operator or licensee not less than ten (10) days before said hearing. For the purpose of hearing such cases jurisdiction is vested in the mayor of the city, or judge of the police court, or a justice of the peace in the county or subdivision thereof where the operator or licensee resides. Such court may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relative books and papers. It shall be the duty of the court to set the matter for hearing upon ten (10) days written notice to the Department. Upon such hearing, in the event of an affirmative finding by the court, the officer who presides at such hearing shall report the same to the Department which shall have authority to suspend said license for a period not greater than one (1) year, provided, however, that in the event of such affirmative finding the licensee may appeal to the county court of the county wherein the hearing was held, said appeal to be tried de novo. Notice by registered mail to address shown on the license of licensee shall constitute service for the purpose of this Section.
“(b) The authority to suspend the license of any operator, commercial operator, or chauffeur as authorized in this Section is granted the Department upon determining after proper hearing as hereinbefore set out that the licensee :
“1. Has committed an offense for which automatic suspension of license is made upon conviction;
“2. Has been responsible as a driver for any accident resulting in death;
“3. Is an habitual reckless or negligent driver of a motor vehicle;
“4. Is an habitual violator of the traffic law.
“The term 'habitual violator’ as used herein, shall mean any person with four or more convictions arising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more convictions arising out of different transactions within a period of twenty-four (24) months, such convictions being for moving violations of the traffic laws of the State of Texas or its political subdivisions.
“5. Is incapable to drive a motor vehicle;
“6. Has permitted an unlawful or fraudulent use of such license;
“7. Has committed an offense in another state, which if committed in this state would be grounds for suspension or revocation;
“8. Has failed or refused to submit a report of any accident in which he was involved as provided in Section 39 of this Act;
“9. Has been responsible as a driver for any accident resulting in serious personal injury or serious property damage.”

As relevant here, the appeal provisions of Section 22(c) added by the 1959 amendment are as follows:

“(c) Any licensee who is not willing and does not consent to abide by the final ruling or decision of the Department suspending said license, and whose license has been suspended under or by reason of any of the provisions set forth in subparagraphs '3/ '4,' ‘5/ '8/ and
'9/ under subsection (b) immediately above, may, within thirty (30) days after the date of receipt of notice of the suspension of such license from the Department, bring' suit in the county court, or county court at law, of his residence to vacate and set aside said final ruling and decision suspending said license, which suit shall be either before the court or a jury at the election of the licensee, and said court shall, in either event, determine the issues in such cause, instead of the Department, upon a trial de novo, and shall be tried the same as if there had been no prior hearing on the matter of suspension of said license and in the same manner as a trial in the county court on appeal from the justice court, and the rights of the parties thereto shall be determined by the court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act. Any such licensee as may bring suit to vacate and set aside such ruling and decision, shall send a copy thereof, certified to by the clerk of said court, to the Department by registered mail. If any licensee who is a party to such final ruling and decision of the Department fails within thirty (30) days to institute or prosecute a suit to set such suspension aside, then said final ruling and decision of the Department shall be binding upon all parties thereto.
******
“Pending final determination of the appeal, the license shall not be deemed suspended and any suspension order by the Department is itself suspended and is hereby set aside pending appeal except as may be hereinafter provided.”

Section 31 of Article 6687b was unchanged by the 1959 amendment and for reference is quoted in the footnote. We reserve the question of the effect, if any, of the addition of Section 22(c) upon Section 31.

We construe Section 22(c) to afford a licensee an election between the appeal provisions of Section 22(a) and Section 22(c). He may appeal the affirmative finding of guilt by the hearing officer to the county court under Section 22(a) which does not require or contemplate an actual suspension of the license by the Department prior, or as a prerequisite, to the appeal.

If the license is suspended on the basis of suspension reasons 3, 4, 5, 8, or 9 of Section 22(b), the appeal provisions of Section 22(c) are also available to him. In such cases, he can await the order of the Department suspending his license on the basis of the prior affirmative finding of the hearing officer and, if unwilling to accept the decision of the Department, bring an appeal suit pursuant to Section 22(c). This suit is from the final ruling or decision of the Department; it is to vacate and set aside the decision suspending the license. The appeal court is to “determine the issues in such cause, instead of the Department” and the cause “shall be tried * * * as if there had been no prior hearing on the matter of suspension.” The suspension order of the Department, however, is not nullified' by the appeal but is itself suspended and stayed pending the appeal.

The question is whether the Legislature intended that in the Section 22(c) appeal only the guilt or innocence of the licensee would be determined by the court or jury. Or, whether it was intended that the court or jury would have the duty of determining the length of the license suspension. There is basis in the language of Section 22(c) for both constructions. We are persuaded to the former. There is no express or specific provision in the 1959 amendment of Section 22 that the Department has the duty of determining the period of suspension in Section 22(a) appeals, which is clearly the case as shown earlier, but does not have the duty of doing so in Section 22(c) appeals. Section 22(c) provides no maximum period of suspension if it is construed that the court or jury is to determine the length of suspension. The result would be that the court or jury could suspend driving privileges for one year, five years, and so on, whereas the Legislature has expressly prescribed that the Department may suspend a license for no longer than one year.

In specifying the nature of the Section 22(c) appeal, the Legislature provided that the trial shall be “as if there had been no prior hearing on the matter of suspension.” The only “prior hearing” provided in Section 22 is held by the mayor, or police judge, or justice of the peace. The only affirmative finding of guilt is by such hearing officer. The Department does not conduct a hearing at any stage of the suspension procedure. The affirmative finding of the hearing officer is not upon, and does not include, the question of the length of suspension of the driving privileges. Without doubt the appeal under Section 22(a) in the 1941 Act, and as re-enacted in the 1959 amendment, is from the finding of guilt only. The Legislature delegated to the Department the sole responsibility of determining the period of suspension. There is no expressed legislative intent in the 1959 amendment adding Section 22(c) that this duty is to be performed by the court or jury in Section 22(c) appeals. To the contrary, it is expressly provided that the decision of the Department is itself suspended — not nullified or rendered naught — during the appeal. The necessary inference from this provision is that if the guilt of the licensee is sustained on appeal, the suspension order of the Department thereupon becomes effective.

We recognize that the problem of construing the statute to solve the problem at hand is not free from difficulties. The construction we have adopted is in keeping with the expressed intent of the Legislature in the original Act of 1941 to delegate to the Department of Public Safety the duty to determine the period of suspension of driving privileges, and the absence of any evident intent in the 1959 amendment to alter the suspension procedure in this respect.

One other question is presented. In the appeal by Respondent to the County Court at Law, Petitioner was granted summary judgment upholding the previous affirmative finding that the Respondent was an habitual violator. Respondent recognizes that our courts have upheld the applicability of summary judgment procedure in appeals involving the habitual violator issue but contends that he was entitled to summary judgment because the four convictions established in the motion of Petitioner for summary judgment were not within a consecutive twelve-months period, although the four transactions upon which the four convictions were based were within a consecutive twelve-months period. We overrule the contention. The definition of an habitual violator in Section 22(b) is quoted in the forepart of this opinion. It requires a minimum of four convictions, the transactions underlying which must have arisen in a consecutive period of twelve months. The definition does not require the convictions to have become final within the consecutive twelve-months period.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . Acts 1959, 66th Leg., 2d C.S., p. 161, Oh. 41, § 1.

      . Acts 1941, 47th Leg., R.S. p. 245, Ch. 173.

      . “Any person denied a license or whose license has been cancelled or revoked by the Department except where such cancellation or revocation is automatic under the provisions of this Act shall have the right to file a petition within thirty (30) days thereafter for a hearing in the matter in the County Court at Daw in the county wherein such person shall reside, or if there be no County Court at Daw therein, then in the county court of said county, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days written notice to the Department, and thereupon to take testimony and examine into the facts of the ease, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this Act.
      “Provided the trial on appeal as herein provided for shall be a trial de novo and the licensee shall have the right of trial by jury and his license shall not be suspended pending the appeal.
      “Provided further in cases herein provided for suspension of license, the filing of the petition of appeal shall abate said suspension until the trial herein provided for shall have been consummated and final judgment thereon is had.”


author: CALVERT, Chief Justice.

text:
    PRODUCERS CHEMICAL COMPANY v. T. H. McKAY et al.
    No. A-8573.
    Supreme Court of Texas.
    Feb. 20, 1963.
    Rehearing Denied April 17, 1963.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioner.
    Merchant, Fitzjarrald, Poole & Merchant, J. Hadley Edgar, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for respondents.
   CALVERT, Chief Justice.

In their separate suits for damages for personal injuries, consolidated for trial, T. H. McKay and T. U. Adkins recovered judgments, based upon a jury verdict and following required remittiturs, of $34,786.-66 and $21,011.70, respectively. The Court of Civil Appeals affirmed. 348 S.W.2d 91. We affirm the judgment of the Court of Civil Appeals.

McKay and Adkins were members of a drilling crew employed by Canadian River Drilling Company in drilling an oil and gas well. Their injuries resulted from an explosion which occurred at the site of the drilling project.

In the drilling operation Canadian River was utilizing a small compressor belonging to Well Completions of Denver, Colorado, in attempting to unload the hole. The small compressor proved inadequate to perform the needed service. H. F. Sears, who is president of Canadian River and was supervising the drilling operation, telephoned Producers and requested it to send its compressor for use. Producers responded by sending an Ingersoll-Rand compressor which had been furnished to Canadian River for use on several other occasions. The compressor was very old. Producers also sent McDonald, as operator of the compressor, and two helpers.

McDonald and his helpers placed the In-gersoll-Rand compressor in line between Well Completions’ small compressor and the line leading to the metal stand pipe on the drilling rig floor and hooked it up to Canadian Rivers’ mud line. Well Completions’ compressor fed air to Producers’ compressor at a maximum pressure of 120 pounds. After Producers’ compressor was started and stopped twice because it was not registering any pressure, McDonald, after working on it and adding oils to various areas, including the Manzell oiler, started it a third time. This time it built up a steady pressure until it reached approximately 1,000 pounds. After thirty or forty minutes of continuous operation, the explosion occurred.

Producers’ compressor ran for some ten or fifteen minutes the first time it was started, and for approximately thirty minutes the second time it was started. The compressor had a sufficient amount of oil when it was put in use, but after the second shut down McDonald discovered that about a pint of oil had escaped from the Manzell oiler and he replaced the oil. McDonald testified that the oil had gone up through the pistons and into the outlet line; that it had no place else to go.

. An expert witness testified that in his opinion the explosion was caused by combining a hydrocarbon — oil—with air which was raised to a high temperature by compression. Producers’ president, a graduate geologist from Texas Christian University, testified that when air compressed to a high temperature is combined with a hydrocarbon, such as oil, there should be an explosion of some type. He testified that he had the same knowledge on the day the compressor was furnished for use. However, there is no evidence that Producers’ president knew that the compressor was to be used in an air drilling operation on the occasion in question. The operator, McDonald, did know it was to be used in that type of operation before it was installed and put into service.

Producers’ first four points of error attack the judgment against it on the ground that the jury’s answers to Special Issue No. 3, on which its liability must rest, have no support in the evidence. In these points and in the argument thereunder, Producers urges, in various ways, that there is no evidence that it was under a duty to Canadian Rivers’ employees or that it breached a duty to them; that it supplied for use the very compressor requested by Sears; that the pumping of oil by the compressor was an inherent defect which was not a defect at all unless and until the compressor was used for pumping air. Producers objected to the court’s charge to the jury because it did not submit issues on duty and breach of duty; and sought submission of issues inquiring whether Canadian River requested and Producers supplied the very compressor used and whether Producers used the compressor for the purpose and in the manner directed by Canadian River.

We have found it difficult to associate the arguments presented in the briefs of the parties with the pleaded theories of recovery and defense and with the special issues submitted to the jury.

Evidence adduced on the trial indicates three possible theories for imposing liability on Producers, viz.: 1. Supplying a defective chattel (compressor) for use by another (Canadian River). This theory, as related to the evidence in this case, is found in and governed by the rules laid down in § 388, Vol. 2, Restatement of the Law of Torts. 2. Supplying a defective chattel (compressor), directly or through a third person, to be used for the supplier’s (Producers’) own business purposes. This theory is found in and governed by the rules laid down in § 392, Vol. 2, Restatement of the Law of Torts. In comment a, under § 392, it is said that the rules of the section apply to “the tools and appliances which an employer furnishes to his servants to be used in performing the work which they are employed to do.” When, as here, a third person suffers injury as a result of the use by employees of a defective chattel supplied by the employer, the theory of § 392 can as well be stated as the using by the supplier, through its own employees, of a defective chattel for its own business purposes. 3. Negligence of its employees in the manner in which they operated the chattel (compressor) supplied for its own business purposes. This theory is simply the well known doctrine of re-spondeat superior. In saying that the three possible theories of liability are indicated, we are not to be understood as saying that all of them find legal support in the evidence.

The plaintiffs’ pleadings seem to predicate liability of Producers on the second and third theories noted above. They alleged that Producers, acting through its agents, servants and employees, was negligent “in using an air compressor that was pumping oil,” and then alleged several specific negligent acts or omissions in the manner of operating the compressor. The theory of using a defective chattel was not submitted to the jury and must be held to have been abandoned. Special issue inquiries with respect to three specific acts or omissions on the part of Producers’ employees, with related issues of negligence and proximate cause, were submitted to the jury. Only Special Issue No. 3 was answered unfavorably to Producers. In answer to that issue the jury found that E. S. McDonald or one of the employees of Producers “permitted its compressor to pump oil into its outlet line at the time and place in question,” and that such act or omission was negligence and a proximate cause of the explosion. The issue, quite clearly, inquires only as to an act or omission in the operation of the compressor.

In spite of the fact that negligence in the manner of operating the compressor is the only theory on which liability could be imposed because that was the only theory of liability submitted to the jury, Producers’ attack on the judgment on the ground that the jury’s answers to the Special Issue No. 3 have no support in the evidence is based entirely and altogether on the absence of evidence to show a duty or breach of duty by Producers in supplying a defective compressor for Canadian Rivers’ use or for use by its own employees. Moreover, plaintiffs meet the charge of lack of evidence to support the verdict by referring alone to evidence which bears on the question of supplying a defective compressor for use in the work to be done.

Negligent supplying of defective machinery and negligent operation of the machinery are separate and distinct legal concepts, requiring altogether different pleadings, proofs and findings. The Court •of Civil Appeals’ affirmance of the trial court’s judgment is based on its holding that there is in the record evidence of probative force, factually sufficient, to support liability of Producers on the legal theory of supplying a defective compressor to do the work contemplated. Abstractly stated, that is a sound theory for imposing liability, Roosth & Genecov v. White, 152 Tex. 619, 262 S.W.2d 99, but, for the reasons above stated, it cannot be used as a basis for imposing liability in this case.

Inasmuch as affirmance of the trial •court’s judgment by the Court of Civil Appeals is based entirely on the supplying of a defective compressor, it is understandable that Producers’ principal argument in this Court under its “no evidence” points of error should be devoted to disputing that theory of liability; but in the absence of proper points of error or argument thereunder in this Court, we are not authorized to consider and decide whether the finding •of negligent operation of the compressor has support in the evidence. We hold, therefore, that there is no point of error before this Court asserting the absence of evidence to support the only jury finding that can be the basis for the trial court’s judgment of liability.

The form of Special Issue No. 3 was hardly a clear submission of negligent operation under the evidence adduced, but no objection to it has been preserved. The real negligence, if any, lay in the continued operation of the compressor after discovery that it was pumping oil. However, we regard the form of the issue sufficient, in the absence of objection, to submit the theory of negligence in the operation of the compressor. The issue can be interpreted to inquire whether Producers’ employees failed to prevent the escape of oil at the time and place and under the circumstances in question. East Texas Oil Refining Co. v. Mabee Consolidated Corp., Tex.Civ.App., 103 S.W. 2d 795, 797, writ dismissed. The jury’s answer to the issue can thus be interpreted to mean that Producers’ employees were negligent in the total activity of failing to prevent the escape of the oil in the light of the circumstance of continued operation of the compressor.

Producers asserts that there is an irreconcilable conflict between the jury’s answers to Special Issue No. 3 and its answer to Special Issue No. 6(a). In answer to the latter issue the jury found that “if there was negligence on the part of anyone in the use of defendants’ compressor on the occasion in question for the purpose and in the manner in which it was being used, such negligence was the negligence of either Canadian River Drilling Company, Well Completions, Incorporated, or the two in combination.”

It is our duty to harmonize jury findings when possible. Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, 282; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558. Keeping in mind the different theories of liability heretofore discussed, the answers to the two issues are at once harmonized. The answer to Special Issue No. 6(a) is that only Canadian River and Well Completions were negligent in using the compressor for unloading the hole or in the manner of using the compressor. The answers to Special Issue No. 3 is not that Producers was negligent in either of those respects but that its employees were negligent in the manner in which they operated the compressor after it had been put in use for a particular purpose and in a particular manner. Negligence in the use of the compressor and in the manner of its use and negligence of those operating it could exist side by side, and negligence in both respects could be a contributing cause of the explosion. That the jury was discerning of this distinction is evidenced by its finding that the negligence of Canadian River and Well Completions in the use or manner of use of the compressor was not the sole proximate cause of the plaintiffs’ injuries.

Producers argues strenuously that it cannot be held liable for the consequences of the negligence of McDonald and his fellow employees because the evidence shows as a matter of law that they were borrowed employees of Canadian River. Alternatively, Producers insists that the evidence on this issue at least raised a fact question for jury determination, and that the judgment against it should be reversed because of the refusal of the trial court to submit its requested special issue. What we shall have to say will dispose of both contentions.

Inasmuch as McDonald and his helpers were general employees of Producers, the burden was on it, if it wished to escape liability for their negligence, to introduce evidence showing, or from which it could reasonably be inferred, that in the operation of the compressor these employees had entered upon a special employment for Canadian River. The only evidence cited to us by Producers as raising the issue is this: Sears was supervising the drilling project for Canadian River, and telephoned Producers for the compressor; Sears had obtained the same compressor for use on other occasions, at times with, and at times without operatives furnished by Producers; on this occasion, three of Producers’ employees, McDonald and two helpers, were sent with the compressor; Sears told McDonald where to tie on, after which McDonald waited until Sears was ready for him to start the compressor; when the compressor had pumped for ten or fifteen minutes without getting pressure, Sears told McDonald to shut it down; during the shut down period McDonald checked the compressor, replaced oil which had splashed out of the journal boxes and did not start up the compressor again until told to do so by Sears; when no pressure built up, McDonald shut down again, checked the journal boxes and the Manzell oiler and added oil, and then started up again and operated until the explosion occurred.

Whether general employees of one employer have, in a given situation, become special or borrowed employees of another employer is often a difficult question, particularly when employees are furnished with machinery by their general employer to accomplish part of a project or contract undertaken by anothfcr. Solution of the question rests in right of control of the manner in which the employees perform the services necessary to accomplishment of their ultimate obligation. If the general employees of one employer are placed under control of another employer in the manner of performing their services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing their services, they remain employees of the general employer and he is liable for the consequences of their negligence. Restatement of the Law of Agency, Vol. 1, § 227; 35 Am.Jur., Master and Servant, 970, § 541; 57 C.J.S. Master and Servant § 566, pp. 284-291. As the Supreme Court of the United States put it in The Standard Oil Co. v. Anderson, 212 U.S. 215, 221-222, 29 S.Ct. 252, 254, 53 L.Ed. 480:

“To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, — a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.”

When a contract, written or oral, between two employers expressly provides that one or the other shall have right of control, solution of the question is relatively simple. As examples, see Magnolia Petroleum Co. v. Francis, Tex.Civ.App., 169 S.W. 2d 286, writ refused; Steele v. Wells, Tex. Civ.App., 134 S.W.2d 377, writ refused. It is when the contract between the employers is only implied or contains no provision for right of control that the problem becomes difficult. In such cases right of control is necessarily determined as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etc. Sometimes, as in Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94, the only reasonable inference to be drawn from the facts and circumstances in evidence is that right of control of the manner in which the employee performs his duties is surrendered to the special employer. Again, as in Insurer's Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217, the only reasonable inference to be drawn is that the general employer has retained right of control.

In. the instant case we have no evidence of a contract expressly ceding right of control of McDonald in operating the compressor to Canadian River. Proper operation of the compressor required an operator with some degree of technical knowledge. The length of the special employment was relatively brief. McDonald was accountable only to Producers in determining whether the compressor was ready for use, when and where it needed oiling, and in continuing to operate the compressor after discovering that it was pumping oil. Canadian River neither exercised control over McDonald in these details of his work, nor is there any evidence whatsoever that it had a right to do so. There is no evidence that Canadian River could have replaced McDonald with another operator of its own choosing. Mere directions given to McDonald as to where to hook up, when to start and when to shut down the compressor in coordinating the work of all men and machinery on the project toward the ultimate object of unloading the hole does not raise the issue that right of control of McDonald in the manner of performing his work had been transferred from Producers to Canadian River. The Standard Oil Co. v. Anderson, supra. We hold that the trial court did not err in refusing to submit the issue to the jury.

What we have said disposes of Producers’ first nine points of error and of the questions which we marked for review in granting writ of error. Six other points of error are presented. All are overruled. We discuss them briefly.

The issues on damages were objected to because they authorized recovery of past and future loss of earnings without adequate proof of past employment and earnings to furnish a legal basis for computing the loss. While the evidence of past employment and earnings of both plaintiffs is indeed sparse, we agree with the Court of Civil Appeals that it is adequate to support an allowance for this element of their damages.

One of the injuries sustained by Adkins was partial loss of hearing. He testified that because of this injury he had been rejected for employment in grocery stores by two or three merchants. He also testified that while a sense of hearing was not absolutely necessary to work on a drilling rig, that type of work was dangerous and inability to hear shouted warnings in case of danger might be fatal. This testimony was relevant to the issue of loss of earning capacity. There was medical testimony that the degree of Adkins’ loss of hearing could be reduced by use of a hearing aid. Producers objected to the instructions given by the trial court in connection with the damage issue because the jury was not instructed that damages should not be allowed for an incapacity which could be removed or alleviated by the use of ordinary care.

We do not regard failure of the trial court to give the instruction as error. While the medical testimony was certainly admissible and entitled to weight in determining the degree and extent of loss of earning capacity, to hold with Producers, where artificial aids or prosthetic devices can relieve some of the handicaps of permanent injuries, would lead to further complication of an already complicated set of instructions. City of Fort Worth v. Satterwhite, Tex.Civ.App., 329 S.W.2d 899, no writ history, relied on by Producers, is not in point. In that case the plaintiff failed to follow the instructions of her doctor for healing an injury of a purely temporary character. The Court of Civil Appeals held that failure of the trial court to instruct that the plaintiff could not recover damages which could have been avoided by following competent medical advice was reversible error. Without here passing on the correctness of that ruling, it is at once apparent that the problem in that case was entirely different from the problem in this case.

We agree with the holdings of the Court of Civil Appeals that the argument of the plaintiffs’ counsel does not present reversible error and that the evidence does not show conclusively that the plaintiffs voluntarily exposed themselves to the hazard which resulted in their injuries.

The judgment of the Court of Civil Appeals is affirmed.


author: GREENHILL, Justice.

text:
    Jack Palmer GLOVER et al., Petitioners, v. Ward DAVIS et al., Respondents.
    No. A-9327.
    Supreme Court of Texas.
    March 6, 1963.
    Rehearing Denied April 17, 1963.

      Harlow Sprouse and Winston R. Smith, Amarillo, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioners.
    C. D. Bourne, Jr., Frank D. McCown, Dumas, for respondents.
   GREENHILL, Justice.

A Texas statute says that “when the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.” In this case, the insured was Weldon M. Glover, who will be sometimes herein referred to as the father. The beneficiary in question is Betty Lou Glover, the older daughter of Glover. Both were in the same automobile accident and died. It was stipulated in the trial court that the only question for decision is whether Betty Lou survived her father. If she did, the insurance goes to her heirs. If she did not, the insurance goes to others named by Glover as alternative beneficiaries in the insurance policy. It was held in the trial court, sitting without a jury, that the daughter, Betty Lou, did survive her father. That judgment was affirmed by the Court of Civil Appeals at Amarillo. 360 S.W.2d 924.

Much of the evidence, particularly that tending to show that Betty Lou survived the accident by approximately ten minutes, is set out in the opinion of the Court of Civil Appeals and need not be repeated here. While there was medical testimony that Betty Lou could not have survived the accident or her father, we shall assume for purposes of this opinion that she did survive the accident for a brief period. There is testimony that she gasped for breath, her mouth moved, and her chest heaved, for about ten minutes and then ceased. Our inquiry will be directed to whether there was “direct evidence” that the father was then dead and that he died before Betty Lou did.

The family car was being driven on the highway by Mrs. Glover. Mr. Glover, the father of Betty Lou, was in the middle of the front seat. A Mr. Hammer was on the right side. In the back were the two daughters of the Glovers, Betty Lou and her younger sister, and a man not related to the Glovers. Near Dumas, Texas, a large truck-and-trailer was parked by a filling station. Mrs. Glover apparently did not see the truck. Around midnight, she drove the car directly into and under the truck with considerable force.

T. A. Cariker, the operator of the filling station, heard the crash, got his ordinary two-celled flashlight, and came out to investigate. The truck driver, who had been in a nearby cafe, also came and moved the truck away from the Glover car. Cariker first went to the driver’s side and shone his light first at Mrs. Glover and saw no sign of life. Then he shone his light on the father. As to him, he said, “Same as with the lady. He was just laying back relaxed and I couldn’t tell if he ever breathed or anything.” He did not see the father move or breathe. He saw no sign of life in the front seat. He was asked if he noticed any wounds or injuries to the father, and he answered, “No, sir, I didn’t. I couldn’t see him as plain as I could see the lady on the outside. * * * He was laying there with his head over the back seat, turned a little bit to the left ,|! * * toward the lady [and toward Cariker], * * * He just looked like he was laying there relaxed.” Over objection, he was permitted to testify that, “As far as I could tell he was dead; there was never no movement.”

Cariker then shone his flashlight in the back seat. He saw Betty Lou lying on the seat. The other two passengers in the back seat were face down on the floor. He could see Betty Lou’s chest move, and she was gasping hard for breath. She was breathing. Over objection, he testified that Betty Lou was alive.

Someone from the cafe promptly called an ambulance. At the suggestion of the truck driver (who did not testify), Cariker did not touch any of the people in the car. After a few minutes, Cariker had to go back to attend his filling station. When he returned Betty Lou was being lifted out of the car. He could not tell at that time whether Betty Lou was breathing or was alive at that time or not. While his testimony was that “they” were being removed when he returned, Cariker gave no testimony as to the father’s appearance or condition upon or after the father’s removal.

On cross examination, it was developed that Cariker did not reach in or touch any of the people in the car. Cariker had had no experience in diagnosing life or death, though he said he had seen other people who had been killed in automobile accidents.

The only other witness called who was at the scene of the accident was Morris Morrison, a funeral director. He was awakened around midnight and drove his ambulance alone to the accident. He estimated that it took him five minutes to get to the scene after having been called.

The truck into which Mrs. Glover had driven was carrying ammonia. There was a strong smell of ammonia in the car.

Morrison testified that he went first to the back seat of the 4-door car and started to remove Betty Lou. He did this because he said she showed signs of life: she was breathing and gasping irregularly. He also said she was “gurgling.” As he removed Betty Lou in his arms, he could hear her breathing, but “just about the time I put her on the cot, she failed to breathe any more that I could detect.” He estimated that it took about five minutes after he got there to get Betty Lou on the ambulance cot. She and the man on the back seat were driven in the ambulance by another employee of the funeral home who had arrived in the meantime.

Apparently Morrison also thereafter removed the people in the front seat and laid them on the ground. The father and the others were not taken to the hospital but were taken directly to the [Morrison’s] funeral home. As to the father, Morrison said he saw no sign of life from him or the others in the front seat. He neither noticed, saw, nor heard anything from the father which would indicate life. But he made no effort to examine any of them, including the father. He made no attempt to feel for a pulse. He did not get down close to listen for breathing. He did not try to open their eyelids or look into their eyes. Asked if he even touched anyone in the front seat prior to the time when everyone on the back seat had been removed [which was about the time Betty Lou stopped breathing, according to Morrison], he said, “I didn’t [touch them] intentionally.” He did not go into the front seat until all three had been removed from the back seat.

Morrison had had no formal training in the medical sciences. He was not an embalmer, but was a licensed funeral director. He conceded that this did not entitle him to pronounce people dead, and “I haven’t pronounced anyone dead.” He could not say that no one else in the car was alive except Betty Lou. His testimony was that “I saw no signs of life anywhere else.” He was asked whether he had an opinion as to whether Mrs. Glover was dead or alive. Objection was made that this called for an opinion of an unqualified witness and that it was admitted that Morrison had not examined the people in the front seat. The objection was sustained. Morrison was not asked for his opinion as to whether the father was alive or dead.

The only other person called to testify was Dr. Richardson, a physician whose qualifications were stipulated. He testified that in determining life or death, “Ordinarily we look at their eyes. Their eyes are fixed and immobile and [have] no reaction to light. Then we usually check the heartbeat with a stethoscope and listen to the lungs.” Some doctors, he said, use a mirror to detect breathing. “We check the pulse * * and if there is no pulse, no heartbeat, we consider them dead.” These are minimum tests. “All signs of life having ceased, we pronounce them dead.” He had experienced numerous calls where others, including nurses, had thought people were dead, but they were not. He said that sometimes “the heart quits” and it is eight or nine minutes before circulation is re-established.

Betty Lou was brought to him in the hospital. He said that she was definitely dead. Her skull and brains “were all over the place”; that her brain had just exploded on the impact. It was his opinion that Betty Lou had been instantly killed and could not have lived one minute after the accident. Asked to explain her “breathing,” he said that her respiratory system may have been stimulated by blood, or the accident; or it may have been caused by a reflex action. He said her respiratory center might have been stimulated by the ammonia fumes. Ammonia is sometimes used to stimulate breathing, but he conceded that ammonia could not cause a dead person to breath. He said, “There could have been some blood running and gurgling,” but he could not have pronounced her dead until the “breathing” had stopped.

It was his opinion that Betty Lou was much worse injured, was “torn up much more physically” than her father.

Dr. Richardson also examined the father. The examination apparently occurred later at the funeral home. He did not examine him at the scene. “His head was pretty badly injured. He had a closed compound fracture. But he was bleeding out of his ears, nose, mouth and throat, and had a compound fracture of the right leg bone.” Asked if he thought the father’s death was instantaneous, he said, “My opinion is that they all were killed instantaneously.” Asked if the father could have been breathing or have had a heartbeat for some minutes after the collision without any apparent signs of either, he said, “His heart could have been beating. He could have had a pulse for several minutes after he was dead. He may have been breathing faintly. That’s a very technical question.” On further questioning, he stated that there could have been some light breathing by the father and that there could have been a pulse and heartbeat for several minutes after the collision; and this would have been possible without any outward sign to the casual observer. He repeated that he thought all of them were killed instantly, but that it was possible that several of them may have lived for a few minutes.

It was stipulated that Mrs. Glover and the younger daughter did not survive the father, Mr. Glover. Under our statute, set out above, the question is whether there is “direct evidence” that Betty Lou survived her father. Stated differently, is there direct evidence that the father died before Betty Lou died? Our answer is that, even assuming that Betty Lou survived the crash for ten minutes or so, there is no direct evidence that the father died during that period, or that he died before Betty Lou did.

The provision on simultaneous death in our Probate Code was first enacted in Texas as a general statute in 1951. It in turn was taken from the Uniform Simultaneous Death Act of the National Conference of Commissioners on Uniform State Laws.

Prior to the enactment of the statute, where two or more persons perished in the same disaster, there was no presumption at common law that either survived or that all perished simultaneously. Because of the lack of proof in many instances, this brought about unsatisfactory results. Artificial rules were set up in some jurisdictions which presumed survival based upon the relative age, sex, physical condition, and strength of the parties. 9 Wigmore, Evidence (3rd ed.), 480 et seq.

The purpose in enactment of the statute was to remedy the situation and to carry out the intention of the insured as nearly as possible. It was suggested that in the average situation, the insured would not have intended that his property pass to a beneficiary, injured in the same accident, for a very brief period of time, at least in the absence of definite proof the beneficiary did survive the insured. Also to be considered on the intention of the insured [or testator] is whether he intended that his property should pass to another for tax purposes for the brief period and be taxed again upon the death of the beneficiary. It was Wigmore’s position that the insured [or testator] would not have intended that his property pass to a “semi-corpse that retained only the semblance of physical vitality for a few moments.” Ibid., p. 487. Indeed, the original draft of the Uniform Act had a section, Section 9, which provided that “a priority of time shall not be deemed to be sufficiently evidenced unless such an interval of time between the deaths is shown to have elapsed * * * [during which] the survivor had a clear period of consciousness.” Ibid., p. 486.

Section 9 was not adopted in the Uniform Act or by Texas. This Court in White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956), had before it the construction of a will, rather than the simultaneous death act. The will had a provision involving simultaneous death. It was held that when it was definitely established that one person died an hour and nine minutes before the other (the people were “pronounced dead” at definite times), the short interval of time was not controlling. The question there was not whether the parties were dead but the effect of their being pronounced dead an hour or so from each other.

The Uniform Act, approved by the Commission, did provide that where the insured and the beneficiary in a policy of life insurance died and there is no sufficient evidence that they died other than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. When this statute was introduced in the Texas Legislature, it was worded as set out above. The bill was amended in the Senate Committee to strike out the words “sufficient evidence” and substitute the words “direct evidence.” In that form the bill was adopted and was later transferred into the Probate Code.

We have discovered no authoritative writing to explain what the Texas Legislature meant by changing “sufficient evidence” to “direct evidence.” The words. “direct” and “direct evidence” have been construed in other contexts which are not particularly helpful here. We think that the Legislature meant to require a higher degree of proof than would have been required for “sufficient evidence"; that it intended that the courts should not leave the question of death to conjecture or speculation; that the matter should not be determined alone on evidence having no foundation upon the components usually regarded as the reliable attributes of death: lack of pulse or heartbeat, lack of breathing, sensitivity of the eyes to light, or other medically accepted tests; that there be strong evidence of death itself and not merely testimony from which the inference can equally be drawn (1) that the insured is unconscious and relaxed and (2) that he has actually ceased breathing, has no heartbeat, and is in fact dead.

There are many cases from the states operating under the Uniform Act. But because the circumstances of one tragedy will never exactly parallel those of another, they are not particularly helpful. These cases involve the statutory requirement of “sufficient evidence” rather than the stronger term, “direct evidence,” as required in our statute. Among those cited by counsel for the heirs of Betty Lou is Sauers v. Stolz (Colo.Sup.1950), 121 Colo. 456, 218 P.2d 741. There two lay witnesses came upon an accident involving a husband and wife. They felt the wife and tested her for heartbeat and found none. Her nostrils and mouth had dust in them, indicating that there was no breathing. Her body was twisted; she apparently had a broken back. There was no movement. The witnesses also felt of the husband. One witness testified to a slight heartbeat but no other movement. The other witness said the pulse was strong, and that the husband was bleeding in spurts. It was held that this was “sufficient evidence” that the husband survived.

Similarly in Prudential Ins. Co. of America v. Spain (Ill.App.1950), 339 Ill.App. 476, 90 N.E.2d 256, a lay witness took the left wrist of an accident victim, a husband, and stated that he could not feel a pulse beat and that he could not hear him breathing; and that in the witness’s opinion the man was dead. Another witness felt the vein in the neck of the wife and detected a heartbeat. The wife was observed to move, and she was heard to groan. This was held to be “sufficient evidence” that the wife survived the husband. While there are some states which hold “sufficient evidence” means an amount of proof which would ordinarily satisfy an unprejudiced mind (and some add “beyond a reasonable doubt”), Illinois rejected the test. It was held that “sufficient evidence” means a preponderance of the competent evidence.

Also cited is In re Eannelli’s Estate (Wis.Sup.1955), 269 Wis. 192, 68 N.W. 2d 791. There four died as a result of an automobile-train collision. There were several witnesses at the scene who testified, including two trained troopers who made a thorough investigation. Many witnesses felt for a pulse on some or all four victims. Some said there was a definite pulse and breathing, and others said there was not as to particular victims. The case has many problems; but as pertinent here, the appellate court adjudged the evidence on “great weight and clear preponderance of the evidence.” It was held that the credibility of the witnesses and the weight to be given their testimony was for the trial court to pass upon (there being no jury). The judgment of the trial court was affirmed. In our case, the question is not the credibility of the witnesses. Their testimony may be accepted as true. The problem is whether it presents that degree of proof as to be considered direct evidence of death.

On the other hand, in In re Cruson’s Estate (Ore.Sup.1950), 189 Or. 537, 221 P.2d 892, 20 A.L.R.2d 219, where husband and wife had been dead for several hours after an automobile accident, and the fact of death was attempted to be shown by degrees of rigor mortis, position of the bodies and similar testimony, it was held that this was not “sufficient evidence”; that “sufficient evidence” means that which satisfies an unprejudiced mind. The court held that it could not engage in guesswork or conjecture and that it could not balance probabilities against probabilities. To the same effect is In re Dukszta’s Estate, 193 Misc. 720, 87 N.Y.S.2d 245 (reversed because of the exclusion of a suicide note, 275 App.Div. 915, 90 N.Y.S.2d 686).

In 3 Proof of Facts 236 (American Jurisprudence Annotated, 1959), the quantum of proof in these types of cases is analyzed as follows:

“Perhaps the most common type of evidence in the event of a common disaster, is the evidence of witnesses who arrive upon the scene shortly after the disaster and who observe signs of life in one victim, while at the same time observing no signs of life in another. Yet, recognizing the difficulty of determining whether death has actually occurred in a person from mere external observation, it is doubtful whether such evidence would be accorded great weight. Many conditions may result in loss of consciousness and sensation and thus have the appearance of death. Where ordinary tests for signs of life have been made by the witness, such as by attempting to detect the radial pulse or heart beat, or by listening for possible movements of the lungs which are present in breathing, greater weight will undoubtedly be accorded the evidence than evidence merely that the victim had the appearance of death. It follows that when the abovementioned tests are undertaken by a physician or other person having medical experience, greater weight is accorded the evidence than in the case of an untrained observer.”

We think that the facts of this case come within the illustrations given at the forepart of the above quotation: the witnesses testified merely to the appearance of death on the part of the father. No one physically examined the father, touched him, felt for a pulse or heartbeat, or for signs of breathing. Cariker looked at the father through a car window at midnight, in the dark, save for a two-cell flashlight. Cariker did not open the door or feel the father. There was dust and the smell of ammonia in the car. He testified that “I could not tell if he ever breathed or nothing.” He described him as lying back on the seat relaxed, and that he observed no movement. He did not notice any wounds or injuries to the father, explaining that he could not see him as well as the lady; but that as far as he could tell, “there was never no movement.” “He just looked like he was laying there relaxed.” As far as Cariker could tell the father was dead, and he thought he was dead. This was testimony merely of the appearance of death.

Similarly, the ambulance driver did not touch anyone in the front seat or go into the front seat where the father was until at least ten minutes after the accident. He busied himself with Betty Lou whom he considered to show signs of life. He conceded that he did not attempt to examine the father, feel his pulse, open his eyelids, or get down close to him and listen for breathing. Nor was the father sent to a hospital where he could have been examined shortly after the wreck. As with the witness Cariker, Morrison testified only to the appearance of death.

Our conclusion is that the proof of the fact or time of death of the father falls short of direct evidence as contemplated by the statute. There is, therefore, no direct proof that the daughter survived her father or that they died other than simultaneously. Indeed, we think there was no more than a scintilla of evidence that the father died before Betty Lou died. This being so, it is unnecessary for us to pass upon the assignment of error as to whether or not it was permissible for Cariker, as a layman, to express an opinion as to whether Betty Lou or the father was alive or dead.

The judgments of the trial court and the Court of Civil Appeals are reversed and judgment is here rendered for petitioners.

      . Probate Code § 47(e). Unless otherwise indicated references to statutes herein are to Vernon’s Annotated Civil Statutes of Texas. Emphasis throughout is ours.

      . Acts 52nd Leg., R.S., 1951, Ch. 196, p. 322, being Senate Bill 74, and codified as Article 2583a.

      . Roy R. Ray, “Three New Rules of Evidence,” 5 Southwestern Law Journal 381 at 389 (1951); Legislative Section, 5 Baylor Law Review 105 (1952).

      .Senate Journal of the State of Texas, 52nd Legislature, p. 551.


author: BARROW, Justice.

text:
    Frank RUBIN, Appellant, v. Maurice B. POLUNSKY et al., Appellees.
    No. 14072.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1963.
    Rehearing Denied April 3, 1963.
    Glosserman, Alter & Smith, San Antonio, for appellant.
    Levey & Goldstein, San Antonio, for appellees.
   BARROW, Justice.

This is a suit by landlords of business property to collect rent allegedly owed for the last six months of a three-year extension agreement, or, in the alternative, for a holding over under the original lease. After a non-jury trial, judgment was rendered in favor of plaintiffs for the sum of $1,500.00, which the trial court found defendant owes under either theory.

There are some undisputed facts: Ap-pellees are Maurice B. Polunsky, Joe Sign-off and Sam Mazer, and the wife of each. The three men were appointed as independent executors of the estate of their father-in-law, Max Mazur, deceased, whose will was admitted to probate on January 2, • 1951. The original lease called for rent of $250.00 per month, and expired on July 15, 1958. Around the middle of June,, 1958, appellant and appellees verbally agreed to a three-year extension of this lease, upon the same terms. Signoff prepared a written extension agreement which was signed in duplicate by the three men as independent executors and by their wives. The duplicate originals of the extension agreement were then delivered to appellant for his signature. Sometime after receiving the extension agreement from Signoff, appellant signed both copies but did not deliver either copy to appellees. Instead, in October, 1958, he delivered both signed agreements to his attorney for approval. Appellant’s attorney had several objections to the agreement as prepared by lessors and executed by all parties. There is a conflict in the testimony as to subsequent events, although it is undisputed that both executed copies of the extension agreement remained in possession of appellant’s attorney until the trial of this case. Appellant remained in possession of the premises and continued to make the monthly payments required under the lease agreement, for thirty months of the extension term. Appellant then vacated the premises and refused to pay further rent.

Appellant’s attorney testified that a week or two after receiving the extension agreement, he talked to Signoff over the telephone and advised Signoff that he made the following objections: The three men would be required to sign “pro forma” in addition to their signatures as independent executors ; B. A. Wiedermann would be required to sign as independent executor; and acknowledgments would be required of all lessors. He testified that he heard nothing further from any of the lessors about this extension agreement until the spring of 1961, when the controversy had arisen. Signoff testified that he didn’t recall the specific objections made by appellant’s attorney, but that he advised the attorney to return the extension agreement if it was not satisfactory. Polunsky testified that he talked to appellant’s attorney, and was advised that the agreement was fully signed and would be delivered to lessors.

The original lease agreement contained the following clause concerning hold-over by lessee: “It is agreed and understood that if Lessee continues in possession of the demised premises after the termination of this lease and against the will of Lessors, Lessee shall be considered as a tenant from month to month at a monthly rental of Three Hundred ($300.00) Dollars payable in advance during such month to month tenancy which may be terminated at any time by Lessors.”

The trial court made findings of fact substantially as follows: The parties verbally agreed to the extension for a three-year period upon the same terms, and all lessors signed the extension agreement; shortly thereafter, appellant signed the agreement; several months after appellant signed, he delivered it to his attorney who made requirements which were never complied with by lessors; it was contemplated that one of the duplicate originals of the extension agreement would be returned to lessors, but it was not returned; appellant remained in possession for thirty months under the extension agreement, and lessors consented to his possession in their belief that the extension agreement had been executed by him; B. A. Wiedermann did not qualify as an executor of the estate of Max Mazur, deceased, and the three sons-in-law were the only qualified and acting executors of this estate at times relevant to this case. The trial court concluded that the extension agreement signed by lessors became binding upon appellant when delivered to him and signed by him; further, that appellant having occupied the leased premises under the agreement for thirty months, is estopped to deny the validity of the lease agreement. The trial court further concluded that if lessors were not entitled to recover the $1,500.00 under the extension agreement, they would be entitled to this sum by appellant’s holding over for thirty months under the original lease.

Appellant asserts that the extension agreement was not a valid contract, under the statute of frauds, as it was never signed by B. A. Wiedermann as one of lessors, and, although signed by appellant, the agreement was never delivered to lessors. Sec. 240, Vernon’s Ann.Tex.Stats., Probate Code, requires that all executors “who have qualified as such and are acting as such,” join in conveyance of real estate unless the probate court should authorize less to act. It was stipulated that, although appointed in 1951, Wiedermann had never taken the oath of office as required for an independent executor to qualify under Sec. 189, of the Probate Code. There was evidence from the other lessors to support the trial court’s finding that Wiedermann was not “acting” as executor at any relevant time. In this situation we do not believe the extension was unenforceable against lessors for lack of Wiedermann’s joinder, even though he joined in the original lease. Roberts v. Stewart, 80 Tex. 379, 15 S.W. 1108; Coy v. Gaye, Tex.Civ.App., 84 S.W. 441, no writ history.

We do not find it necessary to pass upon appellant’s point concerning the question of delivery to the lessors of the extension agreement. The evidence supports the trial court’s finding that after receipt of the extension agreement, signed by lessors, the appellant remained in possession of the premises, made the monthly payments required by the extension agreement, and thereby accepted the benefits of the extension agreement for thirty months. Under these facts and findings, the extension agreement is not within the statute of frauds, and appellant cannot assert any invalidity of the written extension agreement. The rule in Texas is, that a contract in writing signed by one party and expressly accepted orally by the other, or the terms thereof performed and the benefits thereof accepted, is in law the written contract of the parties and binding on both. Martin v. Roberts, 57 Tex. 564; Chavez v. Goodman, Tex.Civ.App., 152 S.W.2d 826, no writ history; Burke v. Shafer, Tex.Civ.App., 189 S.W.2d 444, writ ref. w. o. m.

The trial court found that regardless of whether an extension agreement was made, appellant would still owe lessors $1,500.00 under the hold-over provisions of the original lease; i. e., thirty months at an increase of $50.00 per month. Appellant asserts that this finding is incorrect, as the holding over was not against the will of lessors. The finding of the trial court is supported by the testimony of lessors, that they would not have permitted appellant to remain in the premises if they had not believed the extension agreement was executed by appellant.

The judgment is affirmed.


author: POPE, Justice.

text:
    HUMBLE OIL & REFINING COMPANY, Appellant, v. H. L. KUNKEL et al., Appellees.
    No. 14063.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1963.
    Rehearing Denied April 3, 1963.

      Charles L. Price, Houston, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, P. H. Swearingen, Jr., San Antonio, Fred V. Klingeman, Karnes City, for ap-pellee.
   POPE, Justice.

Was the lease continued in force by production outside the lease but within a pooled unit, when the unit was declared after the expiration of the primary term but within sixty days from the abandonment of a dry hole? The trial court, in a summary judgment, held that the lease had terminated. We affirm the judgment.

H. L. Kunkel and others, lessors, sued Humble Oil & Refining Company to determine whether the Kunkel lease on 145 acres of Karnes County land had terminated. The lease was executed on August 7, 1956, and had a primary term of five years. There were no drilling operations on the lease until July 19, 1961, when Humble commenced drilling a gas well. Drilling continued, as the lease permitted, beyond the primary term’s expiration date, and was plugged and abandoned as a dry hole on September 6, 1961. There was no further drilling and no claims by force of additional drilling are now made. By the terms of the lease, however, Humble still had an additional sixty days to do something to save the lease. That sixty-day period would expire on November 5, 1961. On November 1, 1961, Humble did the thing which it claims was sufficient to keep the lease in force. It executed and filed for record an oil unit designation instrument which described 160 acres of land, including 8.94 acres of the Kunkel lease. The unit had a producing oil well which was located off the Kunkel tract. Humble’s contention is that production on the unit was production on the Kunkel tract, that production was obtained while the Kunkel lease was still in force, and that production keeps the Kunkel lease in force. Lessors contend that the Kunkel lease permitted pooling, but that pooling after the expiration of the primary term was too late, and that the lease permitted only drilling or reworking operations at that time to keep the lease alive. The answer to the problem is found within the lease itself. The pertinent provisions of the lease are:

“2. Subject to the other provisions herein contained, this lease shall be for a term of five years from this date (called ‘primary term’) and as long thereafter as oil, gas or other mineral is produced from said land or land with which said land is pooled hereunder. * * *
“4. (a) Lessee, at its option is hereby given the right and power to pool or combine the acreage covered by this lease, or any portion thereof as to oil and gas, or either of them, with other land, lease or leases, in the immediate vicinity thereof to the extent hereinafter stipulated, when in Lessee’s judgment it is necessary or advisable to do so in order properly to explore, or to develop and operate said leased premises in compliance with the spacing rules of the Railroad Commission of Texas or other lawful authority, or when to do so would in the judgment of Lessee, promote the conservation of oil and gas in and under and that may be produced from said premises. (b) Units pooled for oil hereunder shall not substantially exceed 40 acres each in area * * * provided that should governmental authority having jurisdiction prescribe or permit the creation of units larger than those specified, units thereafter created may conform substantially in size with those prescribed by governmental regulations. * * * (c) Lessee shall file for record in the appropriate records of the county in which the leased premises are situated an instrument describing and designating the pooled acreage as a pooled unit, (d) Lessee may at its election exercise its pooling option after commencing operations for or completing an oil or gas well on the leased premises, and the pooled unit may include, but it is not required to include, land or leases upon which a well capable of producing oil or gas in paying quantities has theretofore been completed or upon which operations for the drilling of a well for oil or gas has theretofore been commenced, (e) Operations for drilling on or production of oil or gas from any part of the pooled unit which includes all or a portion of the land covered by this lease regardless of whether such operations for drilling were commenced or such production was secured before or after the execution of this instrument or the instrument designating the pooled units, shall be considered as operations for drilling on or production of oil or gas from land covered by this lease whether or not the well or wells be located on the premises covered by this lease, and the entire acreage constituting such unit or units, as to oil, and gas, or either of them, as herein provided, shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if the same were included in this lease. * * *
“6. (a) If prior to discovery and production of oil, gas or other mineral on said land or on acreage pooled therewith Lessee should drill a dry hole or holes thereon, or if after discovery and production of oil, gas or other mineral, the production thereof should cease from any cause, this lease shall not terminate if Lessee commences operations for drilling or reworking within sixty (60) days thereafter or if it be within the primary term, commences or resumes the payment or tender of rentals or commences operations for drilling or reworking on or before the rental paying date next ensuing after the expiration of sixty days fom date of completion of dry hole or cessation of production, (b) If at any time subsequent to sixty (60) days prior to the beginning of the last year of the primary term and prior to the discovery of oil, gas or other mineral on said land, or on acreage pooled therewith, Lessee should drill a dry hole thereon, no rental payment or operations are necessary in order to keep the lease in force during the remainder of the primary term, (c) If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land, or on acreage pooled therewith, but Lessee is then engaged in drilling or reworking operations thereon or shall have completed a dry hole thereon within sixty (60) days prior to the end of the primary term, the lease shall remain in force so long as operations on said well or for drilling or reworking of any additional well are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith.”

From these provisions and the facts, certain matters are not disputed. Humble had powers to pool the Kunkel lease with other lands. Operations for drilling on or production from any part of the pooled unit would be treated “for all purposes” as if they were included in the Kunkel lease. Paragraph 4, sentence (e) of the lease so provides. When Humble filed its unit designation on November 1, 1961, Humble still had the power to continue the lease in force, since sixty days from the abandonment of the dry hole did not expire until November 5, 1961. We come, then to the critical question. That question is not whether Humble declared its unit while the lease was still in force; it is, instead, did Humble do that thing permitted by the lease to save it?

The thing and the only thing which Humble relies upon to keep the lease alive is that it furnished production. The Kunkel lease permits “production” to keep the lease alive, but it does not permit the creation of a unit, and hence “production” after the expiration of the primary term. Paragraph 6, sentence (c), gives us the answer. It is there that the parties stated what could be done at that stage and time to keep the lease alive. It ties the events down to a fixed time, in these words: “If, at the expiration of the primary term, oil, gas or other mineral is not being produced on said land * * No one claims that there was production on the Kunkel lease on August 7, 1961. No unit had then been declared through which Humble could claim the advantages of unit production under paragraph 4, sentence (e) of the lease. Paragraph 6, sentence (c) tells the parties the things they could still do at that critical time, and production from a unit formed after the primary date is not mentioned. The parties in making the lease addressed themselves to the problem of this precise time and agreed that the only thing Humble could do at that time to save the lease was to drill or rework. After mentioning drilling or reworking operations, the agreement says, “and if they result in the production of oil, gas, or other mineral," the lease will remain in force. It was too late to pool, and Humble did nothing else.

While we have examined the several cases relied upon by the parties, they are not controlling for they too are decided upon the bases of their special lease provisions. Skelly v. Harris, Tex., 352 S.W.2d 950, was a case of pooling before the expiration of the primary term. The same is true of Bruner v. Gulf Oil Corporation, Tex.Civ.App., 359 S.W.2d 210. Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267, did not concern the effect of a pooling with productive acreage after the primary term. The same may be said of Stanolind Oil & Gas Co. v. Newman Bros. Drilling Co., 157 Tex. 489, 305 S.W.2d 169, and Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311. Humble relies chiefly upon Harper v. Hudson Gas & Oil Corp., 5 Cir., 299 F.2d 238. The facts are similar because a unit was formed after the expiration of the primary term. The leases, however, were entirely different, because in Harper v. Hudson the lessee was authorized to form a unit “[A]t any time while this lease is in force and effect.” The Kunkel lease, to keep the lease alive by reason of production, required production, whether from a well on that lease or production from a unit, “at the expiration of the primary term.”

The judgment is affirmed.

      . The sentences have been designated alphabetically for easier identification.


author: MASSEY, Chief Justice.

text:
    HALLIBURTON COMPANY et al., Appellants, v. Elmer R. ANDREWS et al., Appellees.
    No. 16392.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1963.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, and Ralph Zeleskey, Lufkin, for appellants.
    J. V. Price, Groveton, and Joe J. Newman, Houston, for appellees.
   MASSEY, Chief Justice.

This is an appeal from a judgment overruling pleas of privilege. We affirm this judgment.

J. D. Carter, defendant, was an agent, servant and employee of Halliburton Company, defendant. Carter was a truck driver. He had a flat tire on one of the inside dual wheels of the Halliburton truck which was in his charge. He pulled the truck into the service station of plaintiff Elmer R. Andrews. Tex Malone Hightower, plaintiff, was an employee of Andrews. Andrews and his employees removed the outer wheel with its undamaged tire, then the inside wheel or rim and damaged tire. It was discovered that the tire was so damaged that it had to be replaced. Since the Halliburton Company had a tire maintenance contract, Carter could not purchase a new tire from Andrews, but had to send to another nearby town for a replacement. Therefrom was obtained a replacement tire, already mounted and under pressure. In other words it was already “aired up”. It was a used or repaired tire. The replacement tire was delivered to Andrews’ service station in Trinity County and the services of Andrews were engaged to install it on the truck. It was during the course of this installation that the plaintiffs sustained personal injuries alleged to have proximately resulted from the negligence of defendant Carter, and, under the doctrine of respondeat superior, of defendant Halliburton Company.

Andrews attempted to install the tire by thrusting the hub within the rim and wheel upon the shaft of the axle and into a position where the lug-bolts could be screwed onto the lugs, thus anchoring the inside wheel. The top of the tire and wheel tilted “in” and the bottom tilted “out” resulting in a “bind” on the axle. Solution indicated necessity of either pulling the top of the tire and wheel back “out”, or the pushing of the bottom “in”. With this done it would have been possible to get the lugs through the openings of the wheel so that the wheel might be bolted on. Difficulty was experienced. Voluntarily acting, Carter picked up a sledge hammer, part of the equipment at Andrews’ station, and holding same by its twenty-four inch handle swung it against the lower part of the tire. He struck the tire, and perhaps the “locking ring” which served to secure the tire within and to the rim, one or more times, whereupon the tire exploded. Plaintiffs Andrews and Hightower sustained injuries. It is not entirely clear whether the explosion was by the bead of the tire coming free from the rim (and “locking ring”) or the result of an ordinary “blow out” through the carcass of the tire. We believe it immaterial to the proper decision on venue. The issues, if not completely in accord with the pleadings, were tried by the implied consent of the parties, and being before the court without a jury are to be treated as raised by the pleadings whether actually so or not, Texas Rules of Civil Procedure, rule 67, “Amendments to Conform to Issues Tried Without Objection.”

In the controverting affidavits of the plaintiffs their right to retain venue in Trinity County was asserted under V.A.T.S. Art. 1995, “Venue, general rule”, Exception 9a, “Negligence”. No demand was made therefor and no findings of fact and conclusions of law appear in the record. We need examine the whole of the evidence in the determination of the defendants’ contentions that there was no evidence to support any finding by the court that they were guilty of negligence which was the proximate cause of the occurrence and plaintiffs’ injuries, and alternatively that the presumed finding of the existence of negligence which was proximate cause of plaintiffs’ injuries was so against the great weight and preponderance of the evidence that another trial should be required.

Defendants particularly emphasize their contentions relative to the question of proximate cause in this case. They say that the plaintiffs “failed to prove by a preponderance of the evidence that an ordinary prudent person would have foreseen that the truck tire would explode when struck by a sledge hammer.”

It has been suggested that a jury should always be at liberty to conclude it “foreseeable” to a person of ordinary prudence that a blow of any force delivered to a container, flexible or rigid, known to contain a gaseous or liquid substance under pressure,- — or to a contrivance which holds the pressure within such container,- — might provide the facility by which the substance would be enabled to escape; further, that the jury might furthermore be at liberty to conclude that such escape might be by explosion out of the container in sufficient force to cause or result in injury to persons or property in close proximity; and still further, that the deliverer of such a blow was negligent in the delivery and the negligence a proximate cause of the injury or damage which did in fact result. We have no need to go so far. All members of this court agree that in view of the evidence in the instant case the trial court, as the fact finding agency, was entitled to factually conclude that the defendants’ action was negligence which proximately caused the explosion and the resultant injuries to the plaintiffs. We further agree that the defendants’ “foreseeability” was raised and became an element for consideration. No findings impliedly made would be so against the great weight and preponderance of the evidence as to be manifestly unjust. See 155 A.L.R., p. 157, Annotation: “Foreseeability as an element of negligence and proximate cause”.

Judgment is affirmed.