author: NYE, Justice.

text:
    DELHI-TAYLOR OIL CORPORATION, Appellant, v. Will Ray HENRY, Appellee.
    No. 125.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 12, 1966.
    Rehearing Denied June 9, 1966.

      James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, for appellant.
    Fred C. Auforth, Hubert L. Stone, Jr., Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This is a personal injury suit. Will Ray Henry, the appellee, brought suit against Delhi-Taylor Oil Corporation to recover damages for extensive burns received by him while working as a welder on the premises then under the control of Delhi-Taylor Oil Corporation, the appellant here.

The case was tried to a jury, and in response to the answers of special issues, judgment was entered in favor of Henry for the sum of $105,306.52. The Hartford Accident and Indemnity Company, one of the appellees, the workmen’s compensation insurer for the employer of Henry, intervened to recover the sum of $32,986.52 to which it was subrogated. Its appearance was only for the court and was not shown to the jury.

Delhi-Taylor Oil Corporation, the appellant, engaged Roy Vickers Lease Service to do some rather extensive work on its pipelines running from its refinery in Corpus Christi to the docks on the ship channel at the Port of Corpus Christi. The appellant owned and operated sixteen pipelines which carried various hydrocarbon products from the refinery to the port. These dock loading lines ran generally downhill from the refinery to the port and across property owned by Columbia Southern Corporation from whom appellant had obtained an easement of right-of-way. Columbia Southern had decided to widen its entrance roadway which crossed at right angle to these pipelines. Under the provisions of the easement agreement, Columbia Southern notified appellant that it must extend the casings around each of the pipelines so that road material could be placed on top of the pipes and the road widened at that point. These sixteen pipelines had been installed periodically by the appellant over the past thirty years as the need demanded. The lines varied from two inches to sixteen inches in diameter and were buried in the ground at depths varying from four inches to ten feet.

The particular job that the appellant was undertaking called for extending the casings (simply placing a larger pipe around each pipeline so that any of the pipelines could be removed thereafter at any time from under the road without disturbing the road material) as a part of phase one of this job. Phase two of the job was the cutting and lowering of all of the pipelines to a particular uniform depth. This second operation required that all the lines be drained and emptied.

Appellant hired Vickers to do the work on a labor and equipment rental basis. This was required by the appellant because it was most difficult to ascertain in advance the exact type of work that needed to be performed because of the age and condition of some of the pipelines. Some of the pipelines had corroded and would be in need of welding repairs, doping and wrapping before they were put finally at rest underneath the road. No one knew how much work would be required. Vickers submitted to appellant its standard printed rate schedule outlining the hourly rates for each man and the type of work they would perform and the various types of equipment proposed to be used on the j ob. Other than submitting the printed rate schedule to the appellant, the contract of employment was oral. It was understood that the appellant would furnish a construction superintendent who was to consult with and determine what repairs were to be made to the existing pipelines. He would represent the appellant at the jobsite and determine to his satisfaction the progress of the work. It was further understood that the contract of employment could be terminated at any time by the appellant’s superintendent.

In addition to the casings for the sixteen dock loading lines, appellant had a large twenty-four inch casing in the easement and under the existing entrance roadway which had no pipelines running through it, as it was for future use only. This large two foot casing was buried approximately ten feet deep and was also to be extended by Vickers. It was necessary for a huge ditch to be excavated into which a casing extension would be lowered and welded to the existing casing. At first the ditch was being dug by a back-hoe (a tractor with a flexible digging arm) but it became obvious that this machine could not complete the job. Appellant’s superintendent, Perkinson, directed Vickers to bring out a dragline to perform this excavation. The ditch was to be three feet or more wide, twenty-seven feet long, and approximately ten feet deep. The amount of dirt removed from the excavation was voluminous. Part of the dirt was placed on the side of the road and the rest of it in the easement which was an overburden on the existing pipelines in the easement.

After the ditch had been dug, a twenty-four inch casing pipe was lowered into the ditch by a special machine and held in place so that it could be welded onto existing casing under the road. Henry, the appellee, was an employee of Vickers and was ordered down into the ten foot hole to weld the two pieces of twenty-four inch pipe. Unknown to him, the dragline was moved around some twenty or thirty feet from the existing hole, to remove the pile of dirt overburdening the existing pipelines so that the next pipe could be uncovered and casing placed around it.

Mr. Perkinson, the appellant’s superintendent, watched the dragline dig the large ditch and then move over and uncover the lines. He then left the jobsite to return a transit to his office. While Perkinson was gone the dragline operator continued to uncover the lines and as he was uncovering a second line, the teeth of the dragline bucket punctured a ten inch dock loading line containing liquid toluene under pressure. Toluene is a highly flammable hydrocarbon petroleum product described as being similar to gasoline and which is sometimes used as a blend to gasoline. The fluid toluene spirted up into the air, arched over and downwind some twenty feet and into the hole where the appellee Henry was welding, saturating his clothing. The toluene ignited from Henry’s torch and the entire hole became a mass of flames, burning Henry over approximately eighty-five per cent of his body, with first, second and third degree burns. He was able to extricate himself from the hold and fellow workmen were able to tear off his clothes and put out the fire. As a result of his burns appellee Henry was in the hospital some three months, incurring medical expenses of approximately $20,000.00.

The toluene line which sloped from the refinery toward the dock was not under pump pressure at the time, but the line was full of toluene under static pressure, and possibly a slight pressure from thermal expansion. The static pressure was described as being the weight of the liquid in the pipeline from the point of puncture uphill to the refinery. It was likened to a barrel full of liquid with a hole punched in at the bottom. The weight of the liquid would squirt the fluid out until it had drained down to the hole. As soon as the line drained to the point where the pipe was punctured, the toluene ceased to flow and the fire at the jobsite was quickly brought under control by fire-fighting equipment.

The work to be performed by Vickers and his employees was considered to be very hazardous. Both Mr. Wright, appellant’s engineer in charge of contractual arrangements, and Perkinson, appellant’s onsite superintendent, had considered the work as being hazardous. Perkinson had considered that one of the hazards was exactly what had happened on this occasion. He admitted that while he was supervising another pipeline job for the appellant’s plant, some five years previous to this accident, a dragline bucket had punctured a pipeline. Both parties admit that Vickers and his personnel were business invitees.

Appellee Henry plead that defendant-appellant owed him a duty to provide him with a safe place to work'; that appellant owed him a duty to inspect the premises and to warn such invitees at the jobsite of dangerous conditions discovered by such inspection, as well as dangerous conditions known to appellant by reason of its intimate knowledge of the pipelines from the date of their original installation to the time of the accident. Pleading further, appellee contended that the appellant owed said business invitees that additional duty to take such action to protect them from injuries as would have been taken by a reasonably prudent controller of the premises. Ap-pellee Henry plead that the appellant knew that the pipeline which sprayed toluene on appellee Henry contained toluene under pressure, that the appellant knew that the dragline was being used to uncover pipelines and that such operations carried with it the risk of rupturing such pipes. Appellee Henry contended that appellant breached and violated the duty owed to the appellee. Among others, the appellee plead that the appellant breached and violated the duty to release the pressure on the toluene line before the dragline was used to uncover the same, and to inspect the toluene line to determine the amount of pressure therein before the dragline was used to uncover the same.

The defendant-appellant, Delhi-Taylor Oil Corporation, answered contending that it was guilty of no negligence and violated no duty to appellee Henry; that Vickers, appellee’s employer, was an independent contractor, and knew of the method of doing the work and the work to be accomplished by the dragline, and was aware that there were numerous pipelines in the area transporting petroleum products which were highly inflammable; appellant denied that its job superintendent Perkinson was in control of the work and at no time intended to direct the detailed operations or methods in which the work was to be conducted. Appellant specifically denied that it owed any duty to Henry, the appellee, or to any other employees of Vickers to provide them with a safe place to work, as this was the obligation of Vickers only. Appellant plead further that the accident was not caused by any negligence or any breach of any duty on the part of appellant, but was solely caused by the acts or failure on the part of the dragline operator, the employee of Vickers. Pleading further, appellant answered that the injuries to Henry were the result of an unavoidable accident or were proximately caused by. a new and intervening agency or a new and intervening cause so that if there was any negligence or breach of duty on the part of appellant, it constituted a mere prior or remote cause and that the acts and failure of the dragline operator constituted an immediate and producing cause of the injuries.

The jury, in answer to a number of special issues found: (1) That the defendant Delhi-Taylor Oil Corporation had the right to control the pressure in the toluene line on the occasion in question; (2) that Delhi-Taylor Oil Corporation failed to release the pressure on the toluene line before the dragline was used to uncover the same; (3) that that was negligence, (4) and a proximate cause of the injuries in question; (5) that the appellant Delhi-Taylor Oil Corporation failed to inspect the toluene line to determine the amount of pressure therein before the dragline was used to uncover the same, (6) and that that was negligence, (7) and a proximate cause of the injuries in question. (8) The jury further found that appellant Delhi-Taylor Oil Corporation had the right to control which machines were to be used to uncover the toluene line; (9) that appellant did not direct Vickers’ foreman to use the dragline to uncover the toluene line in question. (Special Issue No. 10 inquired as to whether Special Issue No. 9 was negligence; it was not answered and Special Issue No. 11 as to proximate cause being conditionally submitted, was also not answered). (12) The jury found that the toluene line was punctured by the dragline bucket being dropped on it; (13) they found that the dropping of the dragline bucket was not the sole proximate cause of the injuries to Will Ray Henry; (14) the injuries to Henry were not the result of an unavoidable accident; (15) that the damages sustained by Henry as a direct result of his injuries amounted to $85,000.00; (16) that the doctors, hospital, nursing, and other medical expenses incurred by Henry amounted to $19,806.52, and (17) future medical in the amount of $500.00.

The appellant did not plead the affirmative defense of volenti non fit injuria, nor did it plead that if it owed a duty to Henry, that it protected or warned. The appellant did not rely upon the common law issues of contributory negligence and proximate cause.

Prior to the commencement of the work, the appellant’s engineer told Vickers and his foreman that all of the sixteen dock loading lines were to be considered as “loaded”. Both parties agree that the condition of the premises and the dangers were not open and obvious of which invitees knew or of which they were charged with knowledge as a matter of law. It was also undisputed that there was no protection given to the business invitee or his servants of the dangers complained of.

Appellant’s first point is that the trial court erred in entering judgment for appel-lee because under the facts of this case as a matter of law, appellant as an occupier of the premises owed no duty to appellee as an invitee on the premises, except to warn of existence of flammable materials in the pipelines, and this duty was discharged by the warning given by appellant to the employer, and the employer’s superintendent, of appellee.

The occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). This duty on the part of the occupier of premises is to protect his invitees from dangers of which he, the occupier, knows, or because of his duty to inspect, of which he should know, in the exercise of ordinary care. “ * * * If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. * * *” Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, at page 378 (Supreme Court 1963). In the “no duty” invitee cases the plaintiff must prove the existence of a duty on the part of the occupier and a breach of that duty. This burden is carried into the wording of the special issues. This duty of the occupier of the land or premises as to his invitees, is the duty to keep the premises in a reasonably safe condition. His duty is defined to require that he inspect the premises to discover defects and dangers. On the other hand the invitee may assume that the premises are in good condition. He is under no duty to inspect them for defects. The occupier has a duty to protect his invitees from dangers of which he, the occupier, knows or which because of his duty to inspect, he should know. If the premises are unsafe, the duty of the occupier is to warn or protect the invitee. For if the premises are unsafe and the danger is not open and obvious, how can the plaintiff know and appreciate the danger if he is not warned? If, however, after being warned, the invitee nevertheless proceeds to encounter the danger, he does so on his own risk. The duty is to protect or warn. The doing of either discharges the occupier’s duty.

Here the plaintiff plead that the pipelines under pressure were a dangerous condition and that the appellant had the duty to control the pressure in the toluene line on the occasion in question. The jury found that the appellant had the right to control the pressure in the toluene line and failed to release the pressure on the toluene line before the dragline was used to uncover the pipeline and that was negligence and a proximate cause of appellee’s injuries. The jury found that appellant failed to inspect the toluene line to determine the amount of pressure therein before the dragline was used and that was negligence, and a proximate cause of the injuries. Since this danger was not open and obvious as a matter of law, and it is undisputed that the appellant did nothing to protect or make the premises reasonably safe for this particular work, then appellant’s only defense hinges on whether or not the appellee was warned. Was the general warning sufficient to charge the appellee (or the appellee through his employer) with knowledge and appreciation of the dangerous condition? It was the clear holding of the Supreme Court in Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), in Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959), in Halepeska, supra, and in the recent decision of the Supreme Court in Ellis v. Moore, Tex., 401 S.W.2d 789 opinion of Court of Civil Appeals, 385 S.W.2d 261, that knowledge is not enough.

* * * There must be knowledge of the danger involved and the appreciation of the danger. This Court pointed out in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), that there must be knowledge and appreciation of the particular danger involved so that the plaintiff proceeds to encounter the risk as the result of an intelligent choice. * * * Where the assumed risk doctrines of ‘no duty’ or volenti are invoked, the duty of the defendant is to exercise ordinary care to make reasonably safe or to warn. * * * The function of the warning is to give the plaintiff knowledge and an opportunity to appreciate the danger. He then can decide whether to confront the danger. * * * ” Ellis v. Moore, supra.

Here the appellant argues that he warned appellee’s employer to the effect that the lines were “charged”. Even if there was a general warning, we cannot say that this was a warning of the danger as a matter of law, sufficient to charge the appellee with knowledge and appreciation of the risk and danger. In Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, our Supreme Court held that the basis for liability in the “no duty” case is the superior knowledge of the danger on the part of the occupier. The appellant knew that the lines were under préssure of highly inflammable hydrocarbons. The appellant knew that a dragline was operating in, around and over these lines. The appellant knew that a dragline could puncture one or more of the pipelines (the job superintendent had a similar experience before). The appellant knew further that the appellee was welding with a lighted torch in the immediate proximity while the dragline was operating. Appellant did not say, “you better not use the dragline while the welder is operating with a lighted torch.” The appellant did not say that the welder should cease welding while the dragline was operating in the proximity of the pressurized lines. The appellant did not tell the appellee’s employer to cease these operations until they could release the pressure on the pipelines. Appellant did not say that these operations should be conducted with hand tools or other devices. There was no complete disclosure of the danger. We hold that the appellant had a duty to warn, so that the appellee could have had the knowledge and appreciation of the danger involved. This was not done. There were no issues requested or submitted by appellant as to warning, nor did appellant plead that he warned appellee. If appellant wished to escape legal responsibility, by relying upon warning, then the appellant had the responsibility to request an issue as to whether it had warned the appellee. Western Auto Supply Company v. Campbell, 373 S.W.2d 735, (Supreme Court 1963). Since appellant did not request such an issue, then it was waived. Allen v. American National Insurance Company, 380 S.W.2d 604, (Supreme Court 1964); Rule 279, Texas Rules of Civil Procedure.

In Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951), the plaintiffs knowledge that some of the pipe might be defective (here, that the pipelines were loaded) was much greater than in the instant case, where appellant’s superintendent had made only a general statement to the contractor’s foreman before appellee’s employment to consider the lines loaded. Ap-pellee had no specific knowledge thereof. In Halepeska the Court said that the decision to incur the risk must have been deliberate * * * a result of an intelligent choice. Harvey v. Seale, 362 S.W.2d 310, (Supreme Court 1962). The Court further stated that the duty owed was “ * * * a complete disclosure of the danger.” The nature of the warning must be such that the invitee is vested with full knowledge of the nature and extent of the danger involved such that, knowing of the particular risk involved, he can make an intelligent choice between retreating from that danger or exposing himself to it. Chickasha Cotton Oil Company v. Holloway, 378 S.W.2d 695, ref. n. r. e. The knowledge and appreciation that our Supreme Court speaks about, is not present here.

The appellant argues as one of its points, that there was no evidence of foreseeability to support the negligent or proximate cause issues found against it upon which its duty rested. While appellant was under a duty to exercise ordinary care against dangers of which it knew, or dangers of which it should have known, the appellant contends that there was no evidence to show that it should have, in the exercise of ordinary care, foreseen the danger that caused the injury to appellee Henry. This exact contention was made in Ellis v. Moore, supra. There the defendant pointed out that the three-fork lift used by Harold was in good order. Here appellant contends that the pipe was in good condition. There they complained that the use (or mis-use) of the lift caused the injury. Here the appellant complains that the drag-line bucket was dropped and its mis-use caused the injury to Henry. In Ellis they contend that it was not the defective cylinder lift which Harold knew to be defective and which he was using, that caused the injury. In this case appellant contends that it was not the pressure in the toluene line which the appellee Henry knew (or was charged with knowledge through his employer) that caused Henry’s injuries. In Ellis the defendants contended that as a matter of law they could not foresee that Harold would attempt to use the three-fork hitch to lift the discs and that even if he did, that he would fail to release the clutch if the front end came off the ground and that the tractor would overturn and injure Harold. In our case defendant contends that it could not foresee that the use of dragline and the operation of the lighted torch would cause an injury even if the dragline bucket was dropped and punctured the pressurized toluene line, and that the toluene would spray and ignite appellee. The Supreme Court in Ellis disagreed and said:

“ * * * we cannot say as a matter of law that McCrary (defendant) could not foresee that if Harold did use the three-point hitch, he might not skillfully apply the clutch and throttle when the tractor’s front wheels left the ground.”

We cannot say as a matter of law that appellant could not foresee that the dragline might puncture the toluene line under pressure and that flammable hydrocarbons would be ignited by the operation of Henry’s welding torch.

The defendant did not plead volenti non fit injuria nor did it request or submit an issue as to whether or not a danger existed to which the appellee voluntarily exposed himself. Volenti non fit injuria is not in this case.

Appellant contends that Vickers was an independent contractor and although the relationship of appellant and appellee was that of an owner and occupier of the premises and a business invitee, the appellant owes no duty to the appellee except the exercise of ordinary care to keep the premises safe for the use of persons invited to use the premises for business purposes. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950); Robert E. McKee General Contractor v. Patterson, supra. Appellant argues in effect that when a business invitee performs a particular job as an independent contractor, he is in effect charged with knowledge of the dangers incident to such work, and that the owner has no duty to warn such invitee with respect to conditions which are as a matter of law, open and obvious, and that he takes the premises as he finds them. Appellant says there is no duty on the part of the owner to protect such invitee even by the use of reasonable precautions to eliminate the hazards. Citing Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, wr. ref.; Harvey v. Seale, 362 S.W.2d 310 (Supreme Court 1962). Appellant pleaded in effect that it owed no duty as a matter of law because the danger and/or condition was so open and obvious that as a matter of law it was not liable for the injuries. We fail to see the relevancy of appellant’s argument under the facts of this case. The danger was not open and obvious as a matter of law.

Appellant argues that it retained no control over the work except to see that the work was performed satisfactorily. Appellant argues that the general rule is that the owner-contractee is not liable for injuries sustained by employees of an independent contractor in the performance of the work which has been engaged; that although an exception to the general rule exists where the employer of the contractor retains control over the operative details and the right to direct the manner in which employees of the contractor perform their work, this exception did not apply to the appellant since it did not exercise that degree of control. Citing Allen v. Texas Electric Service Company, 350 S.W.2d 866, Tex.Civ.App., ref. n. r. e. (1961). Although appellee’s employer was called an independent contractor he was nonetheless a business invitee. Appellant’s superintendent was present at the jobsite and knew and observed the work that was being performed. He had the right to control which machines were to be used (the jury so found) and what work was to be done. If appellant’s superintendent observes an employee of an independent contractor attempting to perform a dangerous act it is his nondelegable duty to notify or warn said employee of such danger. Texas Electric Service Co. v. Holt, 249 S.W.2d 662 at 667, Tex.Civ.App. 1952, ref. n. r. e. The mere fact that Vickers was called an independent contractor does not mean that appellant did not retain extensive control as to general and specific results of the work. In any respect the mere fact that appellee’s employer was an independent contracter is not determinative under the facts of this case, for if it was a factor, then the Halepeska, Bosworth, Kneten, Smith and Albritton cases and other authorities would not be in point. Halepeska v. Callihan Interests, Inc. (Supreme Court 1963), 371 S.W.2d 368; Continental Paper Bag Co. v. Bosworth (Tex.Civ.App.1919) 215 S.W. 126; Sun Oil Co. v. Kneten, 5 Cir., 164 F.2d 806; Smith v. Henger, supra; Sunray Oil Corporation v. Albritton, D.C., 88 F.Supp. 54; 5 Cir., 187 F.2d 475, Appellee’s employer’s contract was upon an equipment rental hourly basis and his employment was determinative at the will of appellant.

Appellant contends in his fourth point that as a matter of law, the negligence of the dragline operator in allowing the drag-line bucket to drop from a height of approximately five feet constituted the sole cause of appellee’s injuries or that it was a new and independent cause breaking any causal relationship between the pressure in the toluene line and the fire which injured appellee. Appellant argues that the drag-line bucket was negligently and carelessly dropped onto the toluene line from approximately five feet in a free fall with the bucket teeth pointing straight down.

The question of whether the drag-line bucket was dropped or not and from what height, was a hotly disputed fact issue. In fact, appellee contends that the greater weight and preponderance of the testimony was to the effect that the bucket was not dropped. It is not necessary for us to decide this contention of the appellee. Appellant did not request any issue as to whether it would be negligent conduct for a dragline operator to drop the bucket from the height at which it was dropped. If the negligent and careless operation of the dragline was a part of appellant’s defense of contributory negligence, as it argues now in this court, then the burden of requesting this issue and the securing of a favorable jury answer thereon, was on the appellant, in view of the conflict in the evidence. Since it was not requested it was waived. Rule 279, T.R.C.P.; Goodwin v. Southtex Land Sales, 243 S.W.2d 721, Tex.Civ.App. 1951, ref. n. r. e.

In any respect this point of appellant is overruled because the jury found that even if the dragline bucket was dropped it was not the sole proximate cause. Appellant’s points one through five are overruled.

Appellant’s points six through fifteen are briefed together and will be considered together by this court. Appellant contends under these points that the trial court should not have submitted special issues 2 through 8 or should have disregarded them on appellant’s motion and the trial court should have submitted appellant’s requested special instructions to the effect that one is not required to anticipate negligent conduct and a further instruction on the definition of independent contractor.

Appellant argues in effect under these points, that there was no duty to release the pressure in the lines and that there was no evidence that there was a feasible or practical way of completely shutting down the refinery, to drain all of the lines in anticipation of this injury. The evidence showed that the contract was a two phase contract, the second phase of which required that each line be drained and cleaned so that it could be cut, lowered and reweld-ed into place. The appellant knew which lines were under pressure and which lines were being used, and which lines were not. The evidence showed that the appellant knew that some lines were close to the surface of the ground (four inches), and which lines were deeply embedded in the ground (ten feet). Surely, the lines closer to the., surface of the ground or those in the immediate proximity of the operation of the dragline bucket could have been shut down and the pressure released. There was evidence that even on the punctured toluene line when the pressure had been released after the dragline bucket had punctured it, a wooden peg was put in the hole and a piece of metal placed over the hole and it was welded as a patch on all four sides with the line still full of toluene, but not under pressure. There was no explosion or fire. The evidence further showed that the line pressure (atmospheric) could be released by opening a valve at the refinery site, and that the static pressure could be released by the draining of the line at least to a point below where the appellee was working. We overrule this contention of appellant.

Appellant again argues that the improper operation of the dragline caused the injury. There was no direct evidence of the improper operation of the dragline and no requested issue. We agree as appellant argues, that the general rule is that one is not required to anticipate the negligent conduct of another. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95. However, where the appellant has knowledge of facts which place him on notice that an accident might occur, such as in the instant case, the negligent conduct, if any, of another party does not prevent a finding of negligence on the part of the defendant. We do not believe that such contention on the part of appellant here has merit. We see no error in the failure to instruct the jury on anticipated negligent conduct nor the definition of a contractor, as neither instructions are determinative of this case, or if it was error it was harmless by virtue of the other findings by the jury. Rule 434, T.R.C.P. Appellant’s points are overruled.

Appellant’s sixteenth point contends that the trial court erred in permitting the opinions and conclusions of certain witnesses to be expressed as to whether it was safe or dangerous to use draglines to uncover pipelines carrying hydrocarbon materials. On the other hand, the appellant in its own brief stated that: “All the evidence in the case at bar demonstrated that it was safe to use a dragline to remove the overburden from the dock loading lines.” Appellant complains that the trial court erred in failing to prohibit certain witnesses from testifying as to whether or not the use of a dragline to remove dirt from the top of the lines would be safe. One of the witnesses testified over objection as to the dangers of the use of draglines where there were existing pipelines carrying flammable hydrocarbons. Appellant on the other hand elicited testimony as follows:

“Q Assuming that there had only been ten inches of dirt over that pipe, in your opinion, was it safe to remove that dirt with a dragline?
A I would say that it wouldn’t have been too hazardous, down to the point of the top of the pipe.
Q To use the dragline?
A To use the dragline, yes, sir.
Q Assuming, then, that the surface of the dirt was six inches above the top of that line, would it have been safe to use the dragline to remove that dirt?
A I would say that it wouldn’t have been necessary. As far as safety is concerned, whether it would have been safe would hinge a whole lot on the conditions that existed there at the site * * *.
A * * * I would say six inches would be getting pretty close to the point that if I — if I was the one making the decision to either use the drag-line or a hand excavation, I probably would have said, ‘Use hand excavation instead of the dragline’, as a matter of convenience, and possibly safety.”

The statement of facts is quite voluminous covering over one thousand pages. There was a lot of testimony concerning the operation of a dragline. There was considerable evidence concerning dragline operations offered repeatedly by appellee, and received without objection from the appellant. We hold that the overruling of the objections was not error since the evidence was cumulative. In any event since the appellant offered similar evidence from other witnesses concerning the same factual situation its objections will be deemed to be waived. If we be wrong concerning this, it is our opinion that the testimony was not determinative of any ultimate issue in the case as it turned out. We therefore hold that the errors, if any, in the admission of evidence complained of was harmless and the error complained of was not such as was reasonably calculated to cause or probably did cause the rendition of an improper judgment in this case. Rule 434, T.R.C.P.; Medina Electric Cooperative, Inc. v. Ball, Tex.Civ.App., 368 S.W.2d 227; City of Gladewater v. Dillard, Tex.Civ.App., 312 S.W.2d 530; 1 McCormick & Ray, p. 26, § 27; Sharkey v. Hollums, Tex.Civ.App., 400 S.W.2d 353 (1966).

In appellant’s points seventeenth through twentieth, appellant argues that the trial court erred in excluding evidence from the jury as to certain alleged indemnity provisions in the rate schedule of appellant’s standard general contract from Vickers (ap-pellee’s employer) to appellant. The contract between Vickers and appellant was oral. Vickers testified that prior to the commencement of the work on the job he was not shown the printed general conditions. After the accident had happened, Vickers did sign the purchase order containing the written indemnity agreement offered by the appellant. The rate schedule was introduced into evidence but the trial court physically cut out a clause in the contract before permitting it to go before the jury. This clause stated:

“It is understood that all work done by us (appellee’s employer) for your (appellant’s) account is that of an independent contractor, and you are not liable for any of our acts of commission or omission resulting in injuries or damages.”

It is appellant’s argument that this clause should be admitted and considered by the jury so that (1) they would realize that Vickers was clearly an independent contractor, and (2) that it was intended by appellant and Vickers, that Vickers would be responsible for all acts, whether negligent or not, and that appellant would not be responsible therefor. We have already discussed the independent contractual relationship. If appellant was attempting to cast legal responsibility on appellee’s employer by virtue of this contract, then this would be a law point or an action which was not pleaded by appellant, and it is not properly before us. Appellant does not refer us to any case where this type of evidence would be admissible for the purpose intended by the appellant. Appellant’s point is overruled.

Appellant next contends that the trial court erred in overruling its objections to the testimony of a certain witness concerning the details of a particular construction job done for the United States Navy where a new aviation gasoline line was joined to an existing line. We have carefully considered all of the testimony of this witness, the objections and the cross examination by the appellant. The witness was qualified as an expert and the testimony complained of was elicited in minute detail by appellant on cross examination. Any harm committed in permitting such testimony to go to the jury was cured by the elaboration on cross examination. We deem it harmless error, if any. Rule 434, T.R.C.P.; Hughes v. State of Texas, Tex.Civ.App., 302 S.W.2d 747, 1958 and cases therein cited.

Appellant’s last two points twenty-two and twenty-three, concern the damages awarded by the jury as being grossly excessive so as to demonstrate bias, prejudice and sympathy on the part of the jury; that the damages were so large that a remittitur should be required and that the verdict shows a complete disregard for the evidence. The appellee testified that he was welding with his hood down and noticed a foreign fire in the hole where he was working. He raised his welding hood and found that he was completely surrounded by a wall of flames. On extricating himself from the ditch his entire clothing was afire, save and except his boots. Most of his clothing was burned off. He stood for fifteen minutes being unable to sit down, while waiting on an ambulance. He was severely burned over eighty-five per cent of his body front and back with second and third degree burns. His entire face was covered with first degree burns with some resulting scarring. His ear was burned deeply. When he was first brought to the hospital he was in profound shock and near death. His left arm and leg were burned very deeply involving the muscle and underlying tissue, leaving a loss of motion in his left elbow and his left hand and permanent injury to his left leg. Other parts of his body were burned to such a degree that there will be no regeneration of muscle and tissue. He was operated on twenty-one or twenty-two times. His treating physician testified that he was totally disabled and is permanently disabled from doing any active work that requires him to be out of doors. He remained in the hospital for three months, much of the time in severe pain which was not controlled by drugs because of possibility of addiction. After he was sent home in December, 1960, his treatment continued for a long time and involved extended physical therapy. His pain continued until and including the date of the trial (1964). It was stipulated that his medical expenses for the treatment of his injuries amounted to $19,806.52. Appellee’s earnings prior to the accident were approximately $5,000.00 per year. One of the doctors testified that he will need future surgery to his left leg which was severely burned, including involvement of the underlying tissue. This leg had been bothering him up to the time of trial because of pain and swelling. Appellee was thirty-nine years of age at the time of the accident with a life expectancy of approximately thirty years. The jury awarded appellee $85,000.00 for past and present physical pain, mental suffering and loss of earning capacity, and $500.00 for future medical expenses. We hold that there was sufficient evidence to support the findings of the trial jury and we do not think that the verdict is excessive in view of the age and life expectancy of the appellee, the disability and the severity of the injuries he has suffered. Summers Road Boring, Inc. v. Thompson, 393 S.W.2d 690 (1965, Tex.Civ.App. ref. n.r.e.) and cases cited therein.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Relator, v. Honorable Horace S. YOUNG and John Hogan, Respondents.
    No. 210.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.

      Kleberg, Mobley, Lockett & Weil, by Leslie S. Lockett and Henry Nuss, Corpus Christi, for relator.
    Butler, Schraub & Gandy, by Philip Schraub, Corpus Christi, for respondents.
   OPINION

SHARPE, Justice.

In this proceeding, relator, Missouri Pacific Railroad Company, seeks a writ of mandamus ordering respondent, Honorable Horace S. Young, Judge of the 117th Judicial District Court, to set aside an order declaring a mistrial and to enter judgment that respondent John Hogan, plaintiff below, take nothing by his suit against relator, defendant below, in cause No. 77895-C in that court.

In the court below, Hogan sought to recover damages against relator for personal injuries suffered in a railroad crossing accident. The case was submitted to a jury which answered the special issues unconditionally submitted excepting issue 26, relating to whether Hogan was acting in an emergency on the occasion in question. Issue 27, which was conditionally submitted on a “yes” answer to issue 26, was also unanswered. Issues 26 and 27 are set out in full in the footnote. No issue was requested or submitted inquiring whether the emergency was the sole proximate cause of the collision.

The jury verdict found that relator was negligent in operating its locomotive at an excessive speed, which proximately caused the collision in question, and otherwise acquitted relator of negligence. The jury also found that Hogan was contributorily negligent in two respects: (1) in failing to stop his automobile short of relator’s railroad track, under conditions prescribed by Sec. 86(c), Art. 6701d, Vernon’s Ann.Civ.St. (where an audible signal was sounded within approximately 1500 feet of the crossing before Hogan’s car reached a point fifteen feet from the nearest rail, and when the train was in hazardous proximity to the crossing), and (2) in failing to keep a proper lookout. Each of such acts was found to be a proximate cause of the collision. On the basis of that verdict, without considering the emergency issues, relator was entitled to judgment that Hogan take nothing.

After the jury had finally reported that it could not agree on the answer to Special Issue 26, the trial judge received the verdict for such judgment, if any, as could be rendered thereon, and discharged the jury. Hogan then filed a motion for mistrial and to disregard findings on special issues. Relator filed motion for judgment. After hearing, the trial court overruled the other motions but entered an order, pursuant to Hogan’s motion, declaring a mistrial. The recited reason for such action appears in the order as follows:

“ * * * that because, and only because, the jury failed to answer issues 26 and 27 the verdict of the jury is incomplete in that answers to such issues could be material herein and because of such failure to so answer, and only because thereof, the court is: (1) setting aside, and does hereby set aside, the verdict of the jury; and (2) is declaring, and does hereby declare, a mistrial.”

We agree with relator’s contentions that the trial court should not have ordered a mistrial, but, instead, should have rendered judgment in favor of relator based upon the verdict.

The trial court was in error in holding that the answers to special issues 26 and 27 could be material. The applicable rule is that where a party has been found guilty of primary negligence proximately causing the collision, a finding that he was acting in an emergency is not conflicting absent a finding that the emergency constituted the sole proximate cause of the collision; and the finding of specific negligence will override the general emergency issue finding, which will be disregarded in rendering judgment. Stephens v. McCarter, 355 S.W.2d 93 (Tex.Civ.App.1962, n. w. h.); City Transportation Company of Dallas v. Vatsures, 278 S.W.2d 373 (Tex.Civ.App.1955, wr. dism.); Williams v. Voight, 264 S.W.2d 454 (Tex.Civ.App.1954, wr. ref., n. r. e.). These three cases also hold that there is no conflict between a finding that a person failed to keep a proper lookout and that he was acting in an emergency. Other cases to the same effect on the last-mentioned holding are Houston v. Shaw Transports Company, 296 S.W.2d 631 (Tex.Civ.App.1956, n. w. h.); Mrs. Baird’s Bakeries, Inc. v. Roberts, 360 S.W.2d 850 (Tex.Civ.App.1962, wr. ref., n. r. e.); Booker v. Baker, 306 S.W.2d 767 (Tex.Civ.App.1957, wr. ref., n. r. e.); and Ynsfran v. Burkhart, 247 S.W.2d 907 (Tex.Civ.App.1952, wr. ref., n. r. e.). The rules announced in the seven above-cited cases are applicable here and control disposition of the case. Under such circumstances, discussion of other matters raised by the briefs is deemed unnecessary.

Only the question of ministerial duty of the trial judge to render the proper judgment on the verdict, as distinguished from the exercise of judicial discretion, is here involved. Since appeal is not available to relator, the action of the trial court in declaring a mistrial and in refusing to render judgment on the verdict, is subject to review and correction by mandamus. Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409 (Texas 1965); Southland Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731 (1935).

Relator’s petition for mandamus will be granted and the trial court is directed to set aside its order declaring a mistrial and to render judgment that respondent Hogan take nothing by this suit. This case may then follow the usual course as if judgment had been originally rendered as is here directed. We are confident that the trial judge will undoubtedly follow the directions given in this opinion and a formal writ of mandamus will not presently issue.

      .
      SPECIAL ISSUE NO. 26
      Do you find from a preponderance of the evidence that on the occasion in question John Hogan was faced with an emergency?
      By the term “emergency,” as used in the foregoing Special Issue, is meant a condition which arises suddenly and unexpectedly and which is not proximately caused by any negligent act or omission of John Hogan, and which called for immediate action on his part without time for deliberation?
      Answer “Yes” or “No”
      Answer__
      If you have answered Special Issue No. 26, “Yes,” then answer Special Issue No. 27; otherwise, do not answer same.
      SPECIAL ISSUE NO. 27
      Do you find from a preponderance of the evidence that after such emergency arose, if you have so found, John Hogan thereafter exercised such care as would have been exercised by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?
      Answer “Yes” or “No.”
      Answer_


text:
    Arthur W. MUELLER et al., Appellants, v. CENTRAL POWER & LIGHT COMPANY, Appellee.
    No. 211.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.

      Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellants.
    H. K. Howard, Corpus Christi, for ap-pellee.
   OPINION

NYE, Justice.

This is a condemnation case in which the plaintiff Central Power & Light Company sought to condemn an easement of right-of-way for the purpose of erecting an electric transmission line across the land of the defendants. From an award of the special commissioners, appeal was perfected to the County Court of Calhoun County. The parties stipulated to all the jurisdictional matters, and then proceeded to trial on the sole issue of damages.

The damage issues were submitted to the jury in the substantial form following those approved in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. After judgment was rendered on the jury verdict, the landowners filed a motion for new trial asserting a number of errors. However, on appeal to this court they elected to waive all errors set forth in their motion for new trial, excepting one point. Appellants’ only point pertains to the introduction into evidence of an easement grant which showed the consideration paid by Central Power & Light Company to the appellant landowners for a previous negotiated easement of right-of-way across appellants’ property.

Central Power & Light Company in its petition for condemnation of the subject easement of right-of-way, contended that it owned and held an easement for an electric transmission line now located upon appellants’ property (the previous easement grant); that in connection with the construction of this additional electrical transmission line, it would be necessary to construct an extension to the existing line and to relocate a section thereof to a new location.

During the course of the trial, the appellant landowners were the first to go into this previous easement grant. Questions to appellant by appellants’ attorney:

“Q Let me ask you whether or not you are familiar with the fact that prior to August 2nd, 1962, there was a utility line already on your property.
A Prior to August, 1962, yes, sir, I am.
Q Were you one of the parties to granting that easement?
A I was
Q And—
A I negotiated it with Mr. Reuman from the Central Power & Light Company
Q And what was the date of that easement?
A * * * it is dated October 15, 1953.”
* * * * * *
“MR. MALLETTE: (appellants’ attorney) I want him to read some excerpts, do you want me to go get the Deed Records at noon, and have him read from the original? Or will you accept a copy, or if you have one in your file, I will read yours (to Mr. Howard) ?
MR. HOWARD: (appellee’s attorney) Your Honor, I do not know what the purpose of this is, going into a voluntary deal back in 1951.
JUDGE: What is the purpose of this?”

The record shows that at this point there was a recess for lunch. Then immediately following this recess the following statement by appellee’s attorney appeared in the record.

“MR. HOWARD: In order to speed things up, we will agree to admit all the easement grant, the 1953 easement grant that was executed in favor of Central Power & Light Company by Arthur W. Mueller.” (the appellant)

Thereafter excerpts of this easement agreement favorable to the appellant landowners were read to the jury by their attorney. The attorney for the appellee company then cross-examined the appellant concerning this same instrument.

Appellant answered “ * * * It appears to be the same instrument from which I read a minute ago, recorded in Volume 90, pages 329-333.

“MR. HOWARD: (Appellee’s attorney) We offer this in evidence.
MR. MALLETTE: (appellants’ attorney) We object.
JUDGE: It will be admitted.”

The above objection forms the basis of the appellant landowners’ appeal.

Appellants argue that this above instrument admitted into evidence over their objection, was a right-of-way grant given some eight years before this case, and it covered a similar easement showing therein that the consideration paid was only $1500.-00. Appellants argue that it is therefore obvious that the admission into evidence of the consideration paid by the same con-demnor, the appellee herein, to the same condemnees, the appellants here, on the same property for a similar easement more than eight years prior to the taking in the instant case, was calculated to cause and did prejudice the appellants herein, thereby preventing them from having a fair determination of their damages by the jury. Appellants argue that the great weight of authority in Texas stands to the proposition that sales made under threat of condemnation are not admissible in condemnation proceedings because they are not voluntary and cannot and do not reflect accurately the market value of the property in question. Citing Phelps v. State, 157 S.W.2d 955, Tex.Civ.App.1942, n. w. h.; City of Dallas v. Malloy, 214 S.W.2d 154, Tex.Civ.App.1948, err. dism.; Robards v. State, 285 S.W.2d 247, Tex.Civ.App.1955, ref. n. r. e. The record here is silent as to any threat of condemnation concerning this previous easement grant. As will be shown hereafter, this sale had no effect on the value of the property as found by the jury that would prejudice the appellants.

Appellants further argue that since this previous easement grant covered 4.1 acres of ground, then by mathematical computation based on the consideration paid by Central Power & Light Co. of $1500.00, it would show that the price per acre would only be $365.85. Appellants’ expert witness testified that the value was $750.00 per acre. Therefore, appellants say, that it is obvious that they were harmed by permitting this evidence to let in. This contention is without merit. First of all the purported objectionable easement grant does not state the amount of acreage involved therein. It was a metes and bounds description and only the parties knew the total acreage involved. Next the easement grant stated that it allotted a consideration of only $210.00 for the easement taken with the balance of $1290.00 paid as special damages. That would only be approximately $50.00 per acre. Appellee’s expert witnesses testified that the reasonable market value of the property ranged generally from $150.00 to $397.00 per acre and with one comparable sale being higher than $400.00 per acre. Yet the jury’s answers to appellants’ damages were based upon a figure of $400.00 per acre. Appellants even concede in their brief that there was sufficient evidence in the record to justify the jury making the smaller award (i. e. $400.00 per acre as compared to their appraisal witness’s figures of $750.00 per acre).

Error, if any, of the trial court in permitting the introduction of inadmissible evidence, does not require reversal where a study of the entire record reveals admissible testimony of like import is sufficient to sustain the verdict. St. Louis Southwestern Ry. Co. of Texas v. Smith, Tex.Civ.App., 153 S.W. 391, n. w. h.; Perez v. San Antonio Transit Company, Tex.Civ.App., 342 S.W.2d 802, wr. ref.; Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104; Urban Renewal Agency of City of Lubbock v. Trammel, Tex.Civ.App., 399 S.W.2d 852 (1966).

The courts have uniformly refused to reverse the trial court’s judgment based on a jury verdict, amply supported by competent evidence, on the basis of alleged error in admitting evidence over a general objection. Citing Crom v. County of Cameron, 310 S.W.2d 664, Tex.Civ.App., 1958; Hayes v. Home Indemnity Company, 354 S.W.2d 600, Tex.Civ.App.1962, wr. ref., n. r. e.; Marsh v. State, 276 S.W.2d 852, Tex.Civ.App.1955; Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, (Supreme Court 1944).

The courts do not look with favor on the practice of a “general objection”. Qbj ections must state clearly and specifically the grounds of the objection. The purpose: (1) it enables the judge to understand the precise question before him and to make an intelligent ruling; and (2) it affords the offering party an opportunity to remedy-the defect and reoffer it if possible. Normally, the objecting party will not be permitted to complain of the ruling of the trial court on appeal where a simple general objection was made unless: (1) the ground of excluding the evidence was obvious to the judge and opposing counsel, and the failure to specify the reasons for the objections would not be fatal, and (2) where it clearly appears on the face of the evidence, that such evidence is not admissible for any purpose. See McCormick & Ray, 1 Tex.Prac., §§ 24 and 25, pp. 22-25.

As the record indicates the purported harmful evidence was introduced and portions offered by the appellant himself. The record also shows that appellee offered the entire easement grant at one point without objection or ruling. Later, the instrument in its entirety was again offered by appellee. Appellant should not be permitted to complain on appeal, where his objection was general, and where he had, by offering a portion of the instrument, invited the introduction and admission of the entire instrument. Fireman’s Fund Indemnity Co. v. Boyle Gen. Tire Co., 381 S.W.2d 937, Tex.Civ.App.1964; City of Houston v. Howe & Wise, 323 S.W.2d 134, Tex.Civ.App.1959, wr. ref., n. r. e.

The great weight of authority in cases similar to this in Texas requires that appellants not only show that the admission of such objectionable evidence was error but that such error constituted such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure. At one point in the record the appellee stated that the purpose for offering the objectionable portion of the easement grant was for impeachment purposes. The record filed in this court was only a partial transcript of the statement of facts and therefore we must presume that in absence of a complete statement of facts that the instrument was offered for such purpose and therefore the judgment of the trial court is correct. Rule 434, and 503, T.R.C.P. in Dennis v. Hulse, 362 S.W.2d 308, (Supreme Court 1962) and cases cited therein.

Justice Calvert, writing for the Supreme Court in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277 said:

“ * * * we have held with respect to many and various types of errors that a reversal may be ordered only when a review of ‘the whole record’ convinces the reviewing court that but for the error a different verdict or judgment would probably have been rendered.”

We do not find such an error. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860; Dallas Ry. & Term. Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379; Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596; Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas et al., Appellants, v. F. W. BEAZLEY, Independent Executor of the Will of Fred W. Beazley, Jr., Deceased et al., Appellees.
    No. 11394.
    Court of Civil Appeals of Texas. Austin.
    May 18, 1966.
    Rehearing Denied June 8, 1966.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler, Marietta McGregor Payne, Asst. Attys. Gen., Austin, for appellant.
    Coke & Coke, James K. Rushing, Henry C. Coke, Jr., Dallas, for appellee.
   HUGHES, Justice.

This suit was brought by F. W. Beazley, Independent Executor of the will of Fred W. Beazley, Jr., deceased and the Beazley Foundation, Inc. against Robert W. Calvert, Jesse James and Waggoner Carr, Comptroller of Public Accounts, Treasurer and Attorney General, respectively, of the State of Texas to recover $286,416.49 paid by the Executor to the Comptroller for inheritance taxes demanded by the State as owing by the Beazley Foundation. This payment was made under written protest of the Executor. This protest was sustained by the court below and judgment rendered accordingly.

The basis of appellees’ protest is that the Foundation was exempt from the imposition of inheritance taxes under the provisions of Art. 14.06, Taxation General, Vol. 20A, V.A.T.C.S. as amended in 1963, which reads, in part:

“Provided, further, that this Article shall not apply to property passing to or for the use of any religious, educational or charitable organization, incorporated, unincorporated or in the form of a trust, if (either at the time the property passes or at any time prior to the payment of the tax) the laws of the jurisdiction under which such organization is organized or is operating provide an exemption from death tax of any character with respect to property passing (1) to or for the use of such an organization, or (2) to or for the use of such an organization organized or operating within the State of Texas, or (3) to or for the use of such an organization organized or operating within any other jurisdiction which grants a reciprocal exemption. For the purposes of this paragraph, jurisdiction means any state or territory of the United States or the District of Columbia.”

The undisputed facts show:

Fred W. Beazley, Jr. died December 28, 1962. By his probated will his residuary estate was devised and bequeathed to the Beazley Foundation, Inc., a Virginia Corporation, organized and operated exclusively for charitable, religious or educational purposes, “to be used by it exclusively for its proper charitable, religious and educational purposes.” The value of this residuary estate was $1,755,204.41.

At the date of decedent’s death the laws of Virginia exempted from death taxes of any character all property passing to the Beazley Foundation.

It will be observed that decedent died before the effective date of the 1963 amendment to Art. 14.06, supra.

The laws in effect when decedent died and pertinent here are the following:

“Art. 14.06 Class E — Foreign Bequest
If passing to or for the use of the United States, to or for the use of any other person or religious, educational or charitable organization or institution, or to any other person, corporation or association not included in any of the classes mentioned in the preceding portions of the original Act known as Chapter 29 of the General Laws of the Second Called Session of the 38th Legislature, the tax shall be:
(Rates omitted)
Provided, however, that this Article shall not apply on property passing to or for the use of the United States, or to or for the use of any religious, educational or charitable organization, incorporated, unincorporated or in the form of a trust, when such bequest, devise or gift is to be used within this state. The exemption from tax under the preceding provisions of this Article shall, without limiting its application under other appropriate circumstances, apply to all or so much of any bequest, devise or gift to or for the use of the United States, or a religious, educational or charitable organization, which is, in writing and prior to the payment of the tax, irrevocably committed for use exclusively within the State of Texas or transferred to a religious, educational or charitable organization for use exclusively within this state.
Provided, further, that if the property so passing is to or for the use of a religious, educational, or charitable organization which conducts its operations on a regional basis, one (1) such region of which includes the State of Texas, or any part thereof, then a bequest, devise or gift to be used within such region shall be deemed to be used within this state.
For purposes of this paragraph a region shall comprise not more than five (S) contiguous states, either in whole or in part, one (1) of which is the State of Texas.
For purposes of this paragraph, a religious, educational, or charitable organization shall include, but not be limited to, a youth program of physical fitness, character development, and citizenship training or like program.
Art. 14.07 Applicability of Art. 14.06
The provisions of Article 14.06 shall apply in respect to a decedent dying before the effective date of this Act if the tax imposed by Article 14.06, as heretofore amended, has not been paid prior to the effective date of this Act, and shall also apply to a decedent dying after the effective date of this Act.”
Acts 1959, 56th Leg., 3rd C.S., Ch. I, p. 187, sec. 326.

It is the contention of appellants that only the laws in effect when decedent died control the imposition of inheritance taxes, and that such tax liability does or does not accrue as of such date, according to the law then extant.

It is the contention of appellees that both under the law as it stood when decedent died and under the 1963 amendment the obligation to pay the inheritance taxes did not accrue at death and might never accrue.

It is our opinion that the laws in effect when decedent died must control. The following authorities so hold. Morris v. Calvert, 329 S.W.2d 117, Austin, writ ref., n. r. e., 85 C.J.S. Taxation § 1133, a and e.

The following cases hold that it is the relationship of the parties or their status as of the time of a decedent’s death which con» trols their classification for inheritance tax purposes under the laws of this State. Lewis v. O’Hair, 130 S.W.2d 379, Austin, n. w. h., Johnson v. Davis, 198 S.W.2d 129, Austin, writ ref., n. r. e., Hamilton v. Calvert, 235 S.W.2d 453, Austin, writ ref., Cahn v. Calvert, 159 Tex. 385, 321 S.W.2d 869.

These cases illustrate the principle that in the assessment of death taxes death of decedent is the critical event.

The scheme of our inheritance tax laws is stated in Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918, as follows :

“Historically, death duties ‘in all countries rest in the essence upon the principle that death is the generating source from which the particular taxing power takes its being, and * * * it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.’ See Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 L.Ed. 969. From a reading of cur inheritance tax statutes, we think the basic plan and purpose of the Legislature was to levy the tax upon the privilege of succeeding to property belonging to a decedent at the time of his death. Article 14.01 speaks of property passing by will or by the laws of descent or distribution, whether belonging to inhabitants of this State or to persons who are not inhabitants. The only property that is ordinarily regarded as passing by either will or descent is that which was owned by the testator or intestate at the time of his death.”

Art. 14.16, Vol. 20A, Taxation-General, V.A.T.S., provides, in part that inheritance taxes “shall be a lien upon such property, (see Art. 14.01, id.) from the death of the decedent until paid.”

This Article is consistent with the stated plan of these tax laws in Fort Worth National Bank, supra, and demonstrates that the date of decedent’s death is the date from which the rights of the parties emanate and generate.

Appellees rely upon Art. 14.07, supra, as making “it clear that an obligation to pay the tax did not accrue at death.” We do not agree with this conclusion insofar as it is applicable to present Art. 14.06 under which appellees claim exemption.

Article 14.07 was enacted as Section 2 of S.B. No. 344, ch. 186, Acts 1959, 56th Leg., R.S., p. 405. Section 1 of S.B. No. 344 amended what was then Article 7122 of the Revised Civil Statutes of Texas of 1925, as last amended, by providing an exemption for property passing “to or for the use of a religious, educational, or charitable organization which conducts its operations on a regional basis, one such region of which includes the State of Texas, or any part thereof.”

Section 2 of S.B. No. 344 reads as follows:

“The provisions of this Act shall apply in respect to a decedent dying before the effective date of this Act if the tax imposed by Article 7122, as heretofore amended, has not been paid prior to the effective date of this Act, and shall also apply to a decedent dying after the effective date of this Act.” (Italics ours.)

The plain language of Section 2 limited its application to the new exemption therein provided — an exemption not applicable to or claimed by appellees.

The introductory paragraph of Acts 1959, 56th Leg., Third Called Session, Chapter 1, Section 1, recites “That the following Chapters and Articles are adopted and shall constitute a new Title of the Revised Civil Statutes of Texas to be known as ‘Title 122A, Taxation-General.’ ” Article 7122 was carried forward into the new Title 122A as Article 14.06. The identical regional exemption provision of Article 7122 (S.B. 344, supra) was retained, and Section 2 of S.B. No. 344 (supra) was carried forward substantially as Article 14.07 which reads as follows:

“The provisions of Article 14.06 shall apply in respect to a decedent dying before the effective date of this Act if the tax imposed by Article 14.06, as heretofore amended, has not been paid prior to the effective date of this Act, and shall also apply to a decedent dying after the effective date of this Act.” (Italics ours.)

It is our opinion that the Legislative history of Article 14.07 limits its application to the provisions of S.B. 344, supra, under which appellees do not claim an exemption, and that Art. 14.07 is not applicable to present Art. 14.06.

Our holdings in the respects indicated above remove the necessity for a decision as to the constitutionality of Art. 14.07 if its effect is to release a liability for inheritance taxes under a law in effect when decedent died.

It is our opinion that the judgment of the trial court should be reversed and that appellees should take nothing by their suit. It is so ordered.

Reversed and rendered.

      . Acts 1963, 58th Leg., Reg.Sess., p. 130, ch. 77, Section I, effective April 29, 1963.


author: SELLERS, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. A. B. KENNEDY, Appellee.
    No. 194.
    Court of Civil Appeals of Texas. Tyler.
    May 26, 1966.
    Rehearing Denied June 16, 1966.
    John B. McDonald, Palestine, D. L. Case and Jack Pew, Jr., Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appellant.
    George L. Schmidt, Schmidt & Garrett, Houston, for appellee.
   SELLERS, Justice.

Appellee, a conductor on appellant’s train, brought this suit against appellant under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51, for injuries he claims to have sustained when the caboose in which he was riding and the five cars ahead of it became separated from the rest of the train after which the rear of the caboose derailed. Upon a jury verdict the trial court awarded appellee judgment against appellant in the amount of $75,000.00. From this judgment the appellant railroad company has duly prosecuted this appeal. Appellant has assigned some fourteen points of error, all of which this court has concluded must be overruled except those complaining of jury misconduct which we are of the opinion must be sustained, and in view of another trial we forego a discussion of the other points which we have overruled.

Appellant’s assignments Nos. 7, 8, 9 and 10 are as follows:

“POINT OF ERROR NO. SEVEN— (Restated)
“The trial court prejudicially erred in refusing to grant Appellant a new trial on account of the misconduct of the jury, while assessing Appellee’s damages, in discussing and taking into consideration the attorney’s fees which Appellee would be required to pay.
“POINT OF ERROR NO. EIGHT— (Restated)
“The trial court prejudicially erred in refusing- to grant Appellant a new trial on account of the misconduct of the jury, while assessing Appellee’s damages, in discussing and taking into consideration whether or not Appellee would receive any pension, compensation, payments from insurance, social security, retirement funds, and hospital benefits.
“POINT OF ERROR NO. NINE— (Restated)
“The trial court prejudicially erred in refusing to grant Appellant a new trial on account of the misconduct of the jury, while assessing Appellee’s damages, in discussing and taking into consideration whether or not Appellee would be permitted by Appellant to return to work for Appellant.
“POINT OF ERROR NO. TEN— (Restated)
“The trial court prejudicially erred in refusing to grant Appellant a new trial on account of the cumulative effect of the misconduct of the jury, while assessing Appellee’s damages, in discussing and taking into consideration attorney’s fees, whether Appellee would receive any pension, compensation, payments from insurance, social security, retirement funds, and hospital benefits, and whether or not Appellee would be permitted by Appellant to return to work for Appellant.”

Appellant’s motion for new trial setting up jury misconduct has attached to it the affidavit of one of the jurors which in part states:

“My name is Ozella Smith and I live on Route 4, Palestine, Texas. I was one of the jurors chosen to try the case of A. B. Kennedy vs. Missouri Pacific Railroad Co. about the middle of February, 1965.
“The jury did not have too much trouble answering the issues in the charge until it got down to the part on how much to give the man. The jury got into a discussion on whether or not the Plaintiff could go back to work for the railroad after the case was tried and whether he would receive any kind of pension of payments from any kind of insurance or any kind of railroad retirement or hospital benefits. Most all the jurors said that the Plaintiff, Mr. Kennedy, would be through as far as the railroad was concerned and that he could not work for them any more and would not get any kind of pension, compensation, insurance or hospital benefits of any kind. I told the jury that I knew a man in Palestine, who lives near a woman that I work for named Mr. Coleman who had sued the railroad and had gotten a settlement from the railroad and then made them put him back to work. This was when the jury had Mr. Hughes, the foreman, write a note to the Judge asking him some questions about pensions, compensation, hospitalization and retirement funds.
“When the Judge gave us the answers that he did to the questions all of the jury except me agreed that the man was not going to get anything else from the railroad and could not go back to work for them.
“When the jury got to discussing how much to pay the man, a discussion was had on how much the attorney representing Mr. Kennedy would get for his fee. It was generally decided that the attorney would get ½ of whatever Mr. Kennedy got. The amount of attorney’s fees was taken into consideration by the jury in deciding what amount to pay Mr. Kennedy. It was agreed by the jury that it wanted Mr. Kennedy to have $50,000.00 since he couldn’t go back to work and wasn’t going to get any pension or retirement and that his attorney’s fee should be added on to it. The jury figured that the lawyer would pay the medical bills of Mr. Kennedy. Mr. Hughes, the foreman, set down on paper the amounts that the jury thought Mr. Kennedy ought to get and the amount that the attorney would get and the amount that the doctors would get. That is the way that the jury came up with the $75,000.00 damages for Mr. Kennedy.”

This juror was called as a witness on the hearing of the motion for new trial and testified at length about the jury misconduct and without objection stated that everything she had said in the affidavit was true and it is for this reason that we set out the affidavit above rather than quote at length from her testimony.

Only one of the jurors testified at the hearing on misconduct and he does not dispute that the misconduct stated by the other juror was true but says that after the jury sent out a note to the Judge and received the court’s answer, they then answered the amount of damages.

During the deliberations of the jury, they made the following request of the trial court:

“1. After this suit is settled, will the Plaintiff receive any Pension or Compensation or Payments from any Insurance, Social Security or Retirement funds, Hospital Benefits of any kind?
“2. If so, how much.
“/s/ W. C. Hughes, Foreman.”

Appellant moved for a mistrial, but the trial court overruled the motion and answered the jury’s note as follows:

“Ladies and Gentlemen of the Jury:
“In response to your request, you are advised that you are not to consider the matters inquired about in your deliberations, but only the evidence admitted in the trial of this case and the Main Charge of the Court heretofore given you.-
“/s/ R. W. Lawrence
“Judge Presiding.”

After the hearing on the motion, the court made findings of fact and conclusions of law as follows:

“FINDINGS OF FACT
“The Court finds as facts: that during the jury’s deliberation of its verdict in this cause
“I.
“The jury discussed the amount of attorney’s fees which Plaintiff would be required to pay out of any verdict returned by the jury.
“II.
“The jury discussed whether or not Plaintiff would be permitted by the Defendant, Missouri Pacific Railroad Co. to return to work for such company after the trial of his cause of action and discussed the experience of another employee of such company who had filed suit against the Missouri Pacific Railroad Co.
"IH.
“The jury discussed whether or not Plaintiff would receive any pension, compensation, payments from insurance, social security, retirement funds or hospital benefits.
“IV.
“During the jury’s deliberations, the jury, through its foreman, addressed the following note to the Court:
“ T. After this suit is settled, will the Plaintiff receive any Pension or Compensation or Payments from any Insurance, Social Security or Retirement funds, Hospital Benefits of any kind?
“ ‘2. If so, how much ?
“ ‘Signed W. C. Hughes, Foreman.’, whereupon the Court gave the jury the following instructions:
“ ‘In response to your request, you are advised that you are not to consider the matters inquired about in your deliberations, but only the evidence admitted in the trial of this case and the Main Charge of the Court heretofore given you.’
“ ‘Signed R. W. Lawrence
“ ‘Judge Presiding.’
“The discussion by the jury of the matter contained in Findings of Fact Nos. I, II and III occurred before the quoted instruction by the Court to the jury and there were no discussions by the jury of the matters contained in Findings of Fact Nos. I, II and III after such instruction was given by the Court to the Jury.
“CONCLUSION OF LAW
“The Court concludes as a matter of law that Defendant has failed to establish probable harm as required by Rule 434 T.R.C.P. from the discussions heretofore found by the Court to having been had by the jury during its deliberations.”

This case is certainly not controlled by the recent case of Brawley v. Bowen et al., Tex., 387 S.W.2d 383, where the court held that the evidence of jury misconduct was conflicting, the trial court held that the misconduct did not occur, and the Supreme Court held this finding of the trial court was binding upon the appellate courts. Here we have the very opposite — the trial court held the misconduct did occur and then concluded that the same was not injurious to the appellant. The rule seems to be that when the misconduct occurs, as here, it is then a question of law as to whether the conduct was harmful. Trousdale v. Texas & N. O. R. Co., Tex.Civ.App., 264 S.W.2d 489, affirmed, 154 Tex. 231, 276 S.W.2d 242. This court has held in the case of Texas Employers’ Insurance Association v. Waldon, Tex.Civ.App., 392 S.W.2d 509, opinion by Chief Justice Dunagan, as follows:

“When misconduct is established whether or not such misconduct be material and whether probable injury has resulted to the complaining party is one of law for the reviewing court.”

Neither is this a case controlled by the well-considered opinion of the Commission of Appeals in Bradley v. Texas & P. Ry. Co., 1 S.W.2d 861, where a mere mention of attorney’s fees is made by a juror and promptly rebuked, but here a full discussion was had and the amount reduced to writing and the damages as finally assessed was in keeping with what the jurors placed on the slip of paper — $50,000.00 for the appellee and the rest for the attorney’s fees and doctor bills, making the $75,000.00 as assessed by the jury.

The Supreme Court has stated in the case of White Cabs et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200:

“A jury’s discussion, when considering the amount of the damages to be awarded the plaintiff, of the attorney’s fees that the plaintiff may be required to pay out of what he recovers is material misconduct and is calculated to prejudice the rights of the defendant.”

In the recent case of Rodman Supply Co. et al. v. Jones, Tex.Civ.App., 370 S.W.2d 951, the misconduct was stated by the court as follows:

“ * * * Upon the hearing of appellants’ motion for new trial eight jurors testified. Several of the jurors testified attorneys’ fees were mentioned and discussed to some extent. Juror Rivers testified attorneys’ fees ‘was discussed and deliberated’, but it ‘wasn’t settled, because they didn’t know how much anybody was going to get’. All but two of the jurors who testified stated attorneys’ fees were mentioned, and one testified we ‘naturally’ assumed attorneys’ fees would be paid. * * * ”

The judgment was reversed holding the misconduct probably caused injury to the appellant.

What we have said relates only to attorney’s fees as jury misconduct and we have not given any consideration to the other misconduct; however, it certainly had its combined harmul effect upon the jury.

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