author: STEWART, Judge.

text:
    Hazel Robinson ASHER, Appellant, v. Mrs. Clyde RUSSELL et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Rehearing Denied May 8, 1964.

      William S. Tribell, Middlesboro, for appellant.
    Glenn W. Denham, Middlesboro, for ap-pellees.
   STEWART, Judge.

Appellant, Hazel Robinson Asher, was a passenger in a car owned by appellee, Mrs. Clyde Russell, and driven by appellee, Otis V. Guy, herein referred to as “Guy.” This car was involved in a head-on collision with a car driven by one Everett Slusher. Appellant sustained severe injuries and brought suit against appellees for damages.

At the trial, appellant testified in her own behalf, Guy testified as if on cross-examination, and appellant’s physician testified as to the extent of her injuries. Appellant then announced all her evidence in chief had been introduced. At this juncture appellees moved for a directed verdict which was granted. This appeal followed.

The question presented on appeal is whether the trial court erred in peremptorily instructing a verdict for appellees. Appellant claims she introduced proof sufficient to create a jury question on the negligence and liability of appellees.

It appears that about noontime on Tunc 7, 1960, appellee, Mrs. Clyde Russell, requested Guy to take her car to the garage- and have it serviced. This task he performed and, in appreciation of his having attended to the car, Mrs. Russell told him he could use it that afternoon. Later he picked up appellant and the two in Mrs. Russell’s car left for Pineville with Guy as the-driver. They intended to return to Mid-dlesboro in the late afternoon. At that time he was 17 years of age but had a driver’s license.

The evidence of appellant was that on this trip at about 6:30 p. m., as the car in which she was riding drew near the city limits of Middlesboro, she saw Slusher’s car some 300 to 400 feet away approaching Guy’s car on the latter’s side of the highway. She estimated Guy’s speed at about 40 miles per hour. She yelled to Guy to get over, as she believed they were going to get hit. Then the accident occurred and she does not remember what happened after that. She said she had ridden with Guy on other occasions and that he was a good driver. On cross-examination, she stated she was not sure at what rate of speed Guy was travelling, just prior to the collision, and she admitted she was not certain how far away Slusher’s car was when she first saw it.

Guy’s testimony, in summary, was that he saw Slusher’s car approaching in his (Guy’s) lane when the cars were 200 to 300 feet apart. Slusher’s car was drawing near a Shell Filling Station, at a place called “Hill Top,” which is a short distance north of Middlesboro. Guy said he immediately “dropped off the gas.” His impression was that Slusher was turning into the filling station. Guy swerved to the right and applied the brakes. His wheels skidded three feet or more before the cars came together.

Guy’s car ended up in his own lane following the impact. Slusher’s car went past Guy’s car and over on the shoulder of Slush-er’s proper lane of travel. Guy testified the shoulder on his side of the road was wide enough to drive his car completely off the pavement but he “couldn’t at any speed faster than five miles an hour on account of the gravel.”

Guy fixed Slusher’s speed at 45 to 55 miles per hour. He testified his own speed was 30 miles per hour, according to his speedometer, which he had looked at just prior to seeing Slusher’s car. He was of the opinion five seconds elapsed between the time he saw Slusher and the time the two vehicles met.

It is appellant’s position that Guy, the driver of the car, owed her the duty to use reasonable care to avoid the collision with Slusher’s car and that he failed to do so with the result that the cars met head-on.

In this case Guy, by his own admission, had a distance of at least 200 feet and a period of five seconds in which to change the course of his car, apply his brakes, or take some other positive action to avert an imminent collision. Appellant, seeing they were in obvious danger of being struck by Slusher’s car, cried out to him to move over. Yet he did nothing except swerve to his right and apply his brakes, which caused the car to skid three feet. He explained his reason for doing no more than he did was he thought Slusher’s car was turning into a filling station.

We believe the over-all impact of the evidence is such as could warrant a jury of reasonable minded men to conclude Guy failed to exercise the degree of care required of him to extricate himself from a dangerous situation. We are of the opinion, therefore, the proof introduced was adequate to create a jury question on this issue. It follows the trial court committed a reversible error in directing a verdict for appellees. See Adams v. Parsons, Ky., 313 S.W.2d 426.

On June 7, 1960, the date of the accident, as previously stated, Guy was 17 years old. Since appellee, Mrs. Clyde Russell, allowed Guy to drive the vehicle with her knowledge and consent, she became jointly and severally liable with him because of the provisions of KRS 186.590(3), which apply under the facts presented: “Every motor vehicle owner who causes or knowingly permits a minor under the age of eighteen .to drive the vehicle upon a highway, and any person who gives or furnishes a motor vehicle to the minor shall be jointly and severally liable with the minor for damage caused by the negligence of the minor in driving the vehicle.” See also Falender v. Hankins, 296 Ky. 396, 177 S.W.2d 382.

Wherefore, the judgment is reversed for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Samuel Louis ALLEN, who sues by his father and next friend, William E. Allen, Appellant, v. VOGUE AMUSEMENT COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 14, 1964.
    Rebearing Denied May 8, 1964.

      Fred J. Karem, Karem & Karem, Louisville, for appellant.
    Louis N. Garlove, Morris & Garlove, Louisville, for appellees.
   CULLEN, Commissioner.

' Samuel Louis Allen, a 12-year-old boy, brought action by his father and next friend against the Vogue Amusement Company, two of its employes, and a merchant policeman, seeking damages for false imprisonment growing out of an occasion on which Samuel was detained at a movie theater of the Vogue Amusement Company by its employes with participation by the policeman, and damages for wrongful ejectment growing out of another occasion when Samuel was ejected from the theater. The jury returned a verdict for the defendants and judgment was entered accordingly. The plaintiff has appealed from the judgment, claiming that he was entitled to a directed verdict on the false imprisonment claim and that prejudicial errors were committed on the trial in the admission of evidence.

The defendants’ evidence warranted a finding that Samuel caused a disturbance in the theater; he was asked to leave and was escorted to the outside of the theater by an usher; he attempted to force his way back into the theater; the usher then took him into the manager’s office where a call was made to the boy’s mother; she asked that the boy be held until she could come for him; when she came for him he was permitted to leave with her. Under such a finding the initial restraint of the boy could be considered justifiable as a proper measure to protect the defendants’ property from invasion and interference by the boy. See 22 Am.Jur., False Imprisonment, sec. 78, pp. 407, 408; 35 C.J.S. False Imprisonment § 14, p. 640. And his subsequent detention was at the request of his parent. Accordingly, it is our opinion that the plaintiff was not entitled to a directed verdict.

Damages were claimed on the theory that the boy had become nervous and upset, and rejective of adult authority, as a result of his detention at the theater. In cross-examination, after several questions relating to his nervous and upset condition, he was asked:

“Now, how about on Lexington Road, when you were arrested by some police officers with some older boys, did that make you nervous and upset ?

An objection was sustained to the question and the court not only directed the jury “to disregard that statement altogether” but strongly admonished the attorney for asking the question.

Later, after considerable discussion in chambers, counsel for defendants was permitted to ask the boy’s father and mother (who previously had testified that he was nervous and upset and would not accept adult authority), whether the boy had been detained overnight on an occasion after the theater incident. Each replied that there was an occasion on which a group of boys with whom Samuel was riding had been stopped and taken into custody by the police, and Samuel had been taken to the Children’s Center and kept there overnight. The witnesses then were asked whether that experience upset the boy or affected his nervous condition. The father’s reply was that the boy felt ashamed and had a feeling of guilt, while the mother said that the experience did not emotionally upset or disturb him.

It is contended that the question concerning the arrest on Lexington Road was improper and so prejudicial that the admonition did not cure it. Also, that this question, and the subsequent questions asked the parents, were designed solely to prejudice the jury by showing bad character of the boy through specific instances of misconduct.

The basis on which the trial court permitted the subsequent questions asked the parents was that another instance of detention could be inquired about as bearing on the alleged emotional effects claimed to have been suffered by the boy from the theater detention. The trial judge, in conference in chambers, carefully limited the form of questions that could be asked so that the questions would not mention “arrest” or “police officers” and would only ask whether there had been another instance of a detention. It appears that the judge had sustained the objection to the question asked the boy concerning his arrest on Lexington Road because it gave emphasis to the law-violating aspects of the incident rather than; being confined to the detention aspects-

In our opinion the questions asked the parents, carefully limited in accordance with the trial judge’s directions, were proper as bearing on the issue of damages. See Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398. It is true that the court did not admonish the jury as to the limited purpose of the questions, but no request for an admonition was made.

While perhaps the question asked the boy was objectionable because of its mention of arrest and police officers, we think the strong admonition given by the court was sufficient to prevent prejudice. Furthermore, in the answers to the subsequent questions asked the parents, it was brought out that the boy was not arrested on the occasion in question but merely held in custody overnight by reason of his having been in the company of his older companions who were arrested.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    ARNOLD & WHEELER DISTRIBUTING COMPANY, Appellant, v. Nannie F. MEADOWS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Rehearing Denied May 8, 1964.

      C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellant.
    Russell Porter, Maysville, Dailey & Fowler, Frankfort, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment upholding a decision of the Workmen’s Compensation Board awarding compensation to Mrs. Nannie F. Meadows as the dependent of her unmarried son, Robert Meadows, who was found' dead in the truck he operated as an employee of the appellant company. The Board found that his accidental death occurred while he was in the course of his employment and that his mother was totally dependent upon him. Appellant contends that the evidence was insufficient to support either of these findings.

The appellant operates a beer distributing agency in an area which includes the city of Frankfort. It maintains a warehouse near Frankfort which consists of an office and space for a truck and for the storage of beer.

Robert Meadows was employed by the appellant on November 3, 1961, as a driver-salesman. His duties required him to be at work between seven and eight o’clock in the morning, to load the appellant’s truck with cases of beer, to solicit orders, to make deliveries and to store the truck in the warehouse during the night. He was also required to prepare a daily sales report and to deposit his collections in a night depository.

Meadows was found dead in the truck he had been employed to drive at about 10:30 A.M. on the 22nd day of November, 1961. The truck was parked in the warehouse and it was partially loaded with cases of beer. Meadows’ head was lying near the right front door of the cab; his legs were extended with his feet located under the steering wheel. The motor of the truck was hot, the ignition key was in an “on” position, the hand choke was pulled out about a half-inch, the fan of the heater was running and the gas tank gauge registered empty. ,

A jacket found in the truck was folded in such a manner as to indicate it had been used as a pillow. The truck was equipped with a twenty-gallon gasoline tank, and it was established that Meadows had purchased eleven gallons of gasoline the day before his death.

Curtis Milton, who operates a service station located near the warehouse, testified that on November 21, 1961, the appellant’s truck was parked in front of the warehouse at about 8:00 o’clock that evening.

A chemist found that Meadows’ blood was saturated with carbon monoxide poisoning and that Meadows’ death resulted from such poison. There was no evidence of any other cause of his death. The coroner’s report listed the time of death as four o’clock in the morning. The coroner testified that his report reflected his best judgment, but that the death could have occurred from one to twelve hours before he examined the body at noon on the day the body was discovered.

Appellant insists that the only reasonable inference deducible from the evidence is that Meadows had spent the night in the warehouse and had gone to sleep in the cab of the truck after he had started the motor and turned on the heater. Therefore it is urged that Meadows, at the time of his death, was engaged in his own business rather than that of his employer.

The appellee had the burden of establishing that Meadows’ death was the result of an accident arising out of and in the course of his employment, but the appellee was not required to produce direct evidence in proving her case. It is sufficient if evidence will reasonably sustain an inference or raise a presumption that the accidental death arose out of and in the course of the employment. Codell Const. Co. v. Neal et al., 258 Ky. 603, 80 S.W.2d 530; Raymond Contracting Company v. Little et al., 255 Ky. 461, 74 S.W.2d 926.

The evidence establishing that Meadows was found dead in the cab of appellant’s truck at his place of employment during his working hours and that his death probably resulted from a risk incident to his employment would ordinarily be sufficient to support a finding of the Board that the death was accidental and that it arose out of and in the course of his employment. Codell Const. Co. v. Neal, 258 Ky. 603, 80 S.W.2d 530. It is contended however, that, since the coroner had expressed the opinion that Meadows had died at approximately four o’clock in the morning and had officially reported the death as having occurred at that hour, there was no evidence upon which the Board could reasonably predicate a finding that Meadows’ death occurred during his working hours.

Although the testimony of the coroner has probative value, it is subject to being weighed by the Board. In determining its probative worth the Board could consider the fact the coroner had no special training which would qualify him to determine, with any degree of accuracy, the time of Meadows’ death. Furthermore, the coroner’s testimony, when considered in its entirety, casts much doubt as to the correctness of his opinion that Meadows’ death occurred at four o’clock. Under this view of the case the issue as to when^ Meadows’ death occurred becomes one of ' fact to be determined by the Board. See Louisville Gas and Electric Co. v. Sanders, Ky., 249 S.W.2d 747, 749; Consolidation Coal Co. v. Marcum’s Admr., 289 Ky. 220, 158 S.W.2d 150.

We conclude that the evidence was sufficient to authorize the inference that Meadows’ death resulted from an accident arising out of and in the course of his employment with the appellant.

Appellant further contends that the evidence does not justify the finding of the Board that Mrs. Meadows was totally dependent upon the decedent, Robert Meadows.

Mrs. Meadows has been a widow for seven years. She does not draw social security and has no source of income. She and the deceased, who was not married, lived together in a rented house in Mays-ville. She testified that the deceased was her sole support; that he paid the rent and bought the groceries. Her two older sons were married; one has five children and the other, six children. They did not contribute to her support. Her only other income was from occasional babysitting. The deceased’s income tax returns list his mother as an exempt dependent who lived with him and to whom he furnished total support.

This testimony shows that the decedent had assumed the full responsibility for the support of his mother. Therefore, we are unwilling to say the evidence does not support the finding of total dependency. City of Harlan v. Ford, Ky., 252 S.W.2d 684; Ford, Bacon and Davis v. Paxton, 304 Ky. 292, 200 S.W.2d 738.

The judgment is affirmed.

MONTGOMERY and STEWART, JJ., dissenting.


author: PER CURIAM.

text:
    Maggie DAWKINS et al., Petitioners, v. A. P. VAN WINKLE, Respondent.
    No. A-10020.
    Supreme Court of Texas.
    April 1, 1964.
    John D. Dashiell, Buffalo, Baker, Jordan, Shaw & Foreman, Dallas, for petitioners.
    Ñaman, Howell, Smith & Chase, Waco, for respondent.
   PER CURIAM.

On January 23, 1964, the Court of Civil Appeals affirmed the judgment of the trial court in this cause. Tex.Civ.App., 375 S.W. 2d 341. Petitioners did not file a motion for rehearing in the Court of Civil Appeals.

Rule 468, Texas Rules of Civil Procedure, provides that the application for writ of error shall be filed within 30 days after the overruling of a motion for rehearing in the Court of Civil Appeals. Rule 469(c), Texas Rules of Civil Procedure, provides that the points of error to be relied upon in this court shall be assigned as error in the motion for rehearing in the Court of Civil Appeals.

This Court has interpreted the above rules as requiring the overruling of a motion for rehearing in the Court of Civil Appeals prior to the filing of an application for writ of error. Where this prerequisite has not been met, this Court has no jurisdiction. See State Board of Morticians v. Cortez, 157 Tex. 649, 308 S.W.2d 12; East Texas Motor Freight v. Loftis, 148 Tex. 242, 223 S.W.2d 613.

The application for writ of error is dismissed for want of jurisdiction.


author: SMITH, Justice.

text:
    Austin E. STEWART et al., Appellants, v. HUMBLE OIL & REFINING COMPANY et al., Appellees.
    No. A-9902.
    Supreme Court of Texas.
    April 8, 1964.
    Rehearing Denied May 6, 1964.

      Warren G. Moore, Tyler, Herring & Werkenthin, Clark, Thomas, Harris, Denius & Winters, and Jas. H. Keahey, Austin, for appellant Stewart.
    Small, Small & Craig, Austin, for appellants Triple S. Oil Co. and Wel-Rex Co.
    Waggoner Carr, Atty. Gen., Austin, Lin-ward Shivers, Joseph Trimble, Asst. Attys. Gen., for appellant Railroad Commission of Texas.
    K. C. Minter, D. H. Gregg, Dillard Baker, Houston, for appellees Humble Oil & Refining Co.
    Lloyd Armstrong, Clyde Willbern, Houston, for appellee Tidewater Oil Co.
    Alfred O. Holl, Bartlesville, Okl., Powell, Rauhut, McGinnis, Reavley & Lochridge and B. D. St. Clair and Frank Douglass, Austin, for appellee Cities Service Oil Co.
   SMITH, Justice.

This suit was instituted by Humble Oil & Refining Company, Tidewater Oil Company and Cities Service Oil Company, hereafter referred to as plaintiffs, against Austin E. Stewart, hereafter referred to as Stewart, the Railroad Commission of Texas and the members thereof, hereafter referred to as the Commission. Triple S Oil Company and Wel-Rex Corporation intervened and aligned themselves with Stewart and the Commission.

.Plaintiffs attacked the validity of two orders issued by the Commission on March 18, 1963. By these orders, the Commission approved the bottomhole locations of two wells which had been drilled by Stewart. Both bottomholes were deviated from their surface locations, but did not cross property lines. Plaintiffs contended before the trial court that the Commission orders approving these subsurface locations were arbitrary, capricious, not supported by substantial evidence, illegal and void.

The 53rd District Court of Travis County, Texas, sitting without the intervention of a jury, sustained plaintiffs’ contentions, holding both of the Commission orders to be “arbitrary and unreasonable.” The trial court judgment set aside the orders and permanently enjoined the Commission, its members, agents, servants and employees from issuing any allowable for the two wells in question. The judgment further enjoined Stewart, intervenors Triple S Oil Company and Wel-Rex Corporation, their agents or employees from producing the two wells.

From this judgment, Stewart, the inter-venor defendants, and the Commission directly appealed to this court pursuant to Rule 499-a, Texas Rules Civil Procedure. It is important, in connection with a disposition of this cause, to note that neither of the Rule 37 permits issued to drill the wells in question contained a “straight-hole” clause, and that both wells were drilled prior to the Commission’s adoption of State-wide Rule 54, which regulates in detail the deviation of wells. The judgment of the District Court is reversed, and the permanent injunction dissolved.

The facts giving rise to the Commission’s approval of the two bottomhole locations in question are these:

In October, 1935, Stewart Oil Company, a partnership comprised of W. E. Stewart and his son, Austin E. Stewart, applied to the Commission for a Rule 37 permit to drill a well on its 68.9-acre Emma Killings-worth lease in the East Texas Field, Gregg County, Texas. On the 28th day of October, 1935, after due notice and hearing, the Commission granted a permit to drill this well, hereafter referred to as Killingsworth No. 3. No party protested the granting of such permit. By July 27, 1939, Stewart had drilled and completed Killingsworth No. 3 at its stated surface location.

As to the second well in question, on November 6, 1940, Stewart Oil Company filed an application for a Rule 37 permit to drill the well on its 18.3-acre F. K. Lathrop lease in the East Texas Field. On the 13th day of March, 1941, after notice and hearing, the Commission granted a special permit to drill the well, hereafter referred to as Lathrop No. 6. No attack was made on the granting of this permit, and the well was drilled and completed in 1946. Both Killingsworth No. 3 and Lathrop No. 6 have produced from the dates of their completion up to the present.

In September, 1962, the Commission, after a preliminary survey being run by its Engineering Department, notified Stewart that according to its calculations, Kilhngs-worth No. 3 was bottomed off its lease. Stewart was instructed by the Commission that a directional survey must be run on the well in order to retain it on producing status. In October, 1962, the Commission further required Stewart to run a directional survey on Lathrop No. 6. Directional surveys were run by Sperry-Sun Well Surveying’ Company on the two wells,-which surveys showed the bottomhole location of Killingsworth No. 3 to be deviated approximately 510 feet from its surface location, and the bottomhole location of Lathrop No. 6 to be deviated some 305 feet. Although deviated, neither well bores crossed property lines. The Killingsworth No. 3 was bottomed some 80 feet from the nearest lease line, and the Lathrop No. 6 approximately 250 feet.

In November, 1962, after discovery of these deviations, Stewart applied to the Commission for an order approving the bottomhole locations of Killingsworth No. 3 and Lathrop No. 6 as drilled. After due notice and hearing, the Commission issued its orders of March 18, 1963, approving these locations. It is these two orders which the plaintiffs, owners and operators of leases in the East Texas Field, attacked in the trial court, and which the trial court set aside as being “arbitrary and unreasonable.”

All parties to this suit recognize that the question as to the proper location of a well is one vested peculiarly in the Commission as an administrative body, and one which cannot be exercised by the courts. See Railroad Commission v. Magnolia Petroleum Co., Tex.Civ.App., 125 S.W.2d 398, wr. ref’d. (1939); Railroad Commission of Texas v. Lamb, Tex.Civ.App., 81 S.W.2d 161, no wr. hist. (1935). In Railroad Commission v. Magnolia Petroleum Co., supra, a case which dealt with a variance as to a surface location, the District Court entered a judgment setting aside a Rule 37 permit issued by the Commission, and enjoined production from the well. The evidence showed that the well in question had been located on the surface some 49 feet south of the location established by the Commission in the permit.

In affirming that part of the trial court judgment which enjoined production from the well, the Court of Civil Appeals held that drilling 49 feet south of the stated surface location did not constitute “substantial compliance” with the Commission’s original Rule 37 permit. However, the court recognized the right of the Commission to approve the surface variance and held that the persons who drilled the well could apply to the Commission for an order changing the location of the well authorized under the permit to that of the actually drilled well.

In its post-submission brief, plaintiffs concede that the Commission had the authority to approve the subsurface locations of Stewart’s wells just as the Commission in the Magnolia case could approve the surface location of the well drilled. However, plaintiffs argue that before the Commission could so approve these bottom-hole locations “there must be a showing by the operator that the ‘wrong’ or ‘shifted’ location is necessary to prevent confiscation or waste, the same as in any Rule 37 exception, or that the operator even at the ‘wrong’ or ‘shifted’ location was in substantial compliance with the Commission’s original order.” The basis of plaintiffs’ argument is that Stewart presented no substantial evidence to show either of these requisites.

Both Stewart and the Commission contend that this is not a “run-of-the-mill” Rule 37 exception case, and that the question as to waste or confiscation has no bearing on the issues to be decided. In substance, both argue that the Commission had no legal right under its own rules to issue permits for the wells involved except on a finding that they were necessary to prevent confiscation. Stewart and the Commission say that such a finding was made over twenty years ago, when the original permits were granted, and therefore whether the Killingsworth No. 3 and Lathrop No. 6 are necessary for that purpose is not open to question at this time. Stewart contends he did not raise any issue as to confiscation since he was only seeking approval of the manner in which he had drilled Killingsworth No. 3 and Lathrop No. 6.

Stewart next argues, and the Commission agrees, that the Commission properly approves the bottomhole locations of Killingsworth No. 3 and Lathrop No. 6 because there is substantial evidence to support the Commission’s implied finding that the locations of the wells reasonably comply with the Commission’s original Rule 37 permits issued in 1935 and 1941.

Thus, the basic issue for this court to decide is whether or not there is substantial evidence to support the Commission’s implied finding that the bottomhole locations of Killingsworth No. 3 and Lath-rop No. 6 reasonably comply with the Commission’s original permits issued for said wells. In determining this issue, it must be emphasized that the courts have consistently recognized that the Commission must be given discretion in administering the oil and gas statutes. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). This court will not undertake to prescribe any rule or standard to guide the Commission in performing its duties, except that its actions must be legal, reasonable and not arbitrary. See Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393 (1935). Our function is to determine the validity of the Commission’s order, and not to decide whether on like testimony we would have made a similar or contrary ruling. See Railroad Commission v. Lamb, supra; Rabbit Creek Oil Co. v. Shell Petroleum Corp., Tex.Civ.App., 66 S.W.2d 737, (1933).

The trial court found that the deviations of Killingsworth No. 3 and Lathrop No. 6 were intentional. Plaintiffs argue that this finding of intent goes to the question of whether or not the bottomhole locations of these two wells reasonably comply with the Rule 37 permits granted in 1935 and 1941. It is plaintiffs’ position that, as a matter of law, an intentionally deviated well does not fulfill the test of reasonable compliance. Thus, plaintiffs conclude that Stewart had the burden of proving that the bottomhole locations were necessary to prevent waste or confiscation. We do not agree.

To adopt plaintiffs’ position would necessarily mean that an operator who intentionally deviates his well some 5 feet from its surface location can never have the Commission approve his deviated position, while an operator who unintentionally deviates some 10 feet can apply for Commission approval. Logic negates such a result. Whether Stewart has intentionally deviated or not, any alleged “harm” resulting to plaintiffs is the same. In deciding whether an operator in Stewart’s position has reasonably complied with the terms of his permit, the Commission’s decision should not be controlled by the question of intent. To hold otherwise would be contrary to the long-recognized principle that when the subject of administration is so vast, complex and complicated, an administrative agency should not be placed in an absolute straight jacket. See Gulf Land Co. v. Atlantic Refining Co., supra.

Plaintiffs rely on the cases of Railroad Commission v. Magnolia Petroleum Co., supra; Gulf Oil Corp. v. York, wr. dism., judg. corr., Tex.Civ.App., 134 S.W.2d 502, and Loefiler v. King, Tex.Civ.App., 228 S.W.2d 201; rev’d. on other grounds 149 Tex. 626, 236 S.W.2d 772, as authority for their position that the subsurface deviations of Killingsworth No. 3 and Lathrop No. 6 are unreasonable as a matter of law. These cases do not support plaintiffs’ contention.

Each of the above cited cases dealt with the problem of surface variances. In the Magnolia Petroleum and Gulf Oil cases, it was held that the surface variance location of the wells did not comply with the permits issued to drill the wells. Plaintiffs contend that Stewart’s subsurface deviations are as much a failure to reasonably comply with the original Rule 37 permits as were the surface deviations in the above cited cases.

The difficulty with plaintiffs’ argument is that in the present case Stewart, pursuant to the procedure set out in the Magnolia Petroleum case, has applied to the Commission for orders approving the bottomhole locations. This being so, the only question is whether there is substantial evidence to support the Commission’s implied finding of “reasonable compliance.”

Tests of Reasonableness

Plaintiffs next argue that the Commission has failed to follow its own test as to what constitutes “reasonable compliance.” In order to understand this contention, we shall briefly set out certain Commission actions.

The Commission adopted state-wide Rule 54, a detailed Rule regulating the deviation of wells, on March 7, 1949. By its terms it was not applicable to wells, such as Killingsworth No. 3 and Lathrop No. 6, drilled before its adoption. See Harrington v. Railroad Commission of Texas et al., Tex., 375 S.W.2d 892, (1964). At the beginning of the 1962 slant-hole investigation the Commission took into account the problem of wells, such as those in question, which had been drilled prior to Rule 54 which were not bottomed under their surface locations, but still bottomed under the confines of their own lease. In its Memorandum to Rule 37 Department in Re: Rule 37 Re-Applications on Deviated Wells, January 15, 1963, the Commission stated:

“The Commission has carefully considered several re-applications for permits to allow continued production from wells found to be deviated in excess of a reasonable tolerance, but have been shown to be bottomed on the lease where permitted.
“The Commission concluded that wells so deviated, whether intentionally or otherwise, prior to the adoption of Statewide Rule 54, which was issued effective April 1, 1949, were the principle cause for the promulgation of said Rule 54, and were at the time such rule was adopted, accepted as legally existing wells, which remained unaffected by such rule because it was prospective in nature only.
“The Commission reiterates such conclusion and by this memorandum directs the Rule 37 Department to develop the record in each such re-application for permit for a deviated well so that the Commission can determine the condition for each such well. The examiner will adduce the following sworn testimony and authenticated data:
“1. That such well was deviated before the adoption of Rule 54.
(a) Proof of completion of the well prior to that date and its subsequent producing status is not adequate proof of deviation.
“2. That such well was completed on the lease where the surface location was permitted.
(a) Such bottomhole location must be proven by the submission of an acceptable authenticated directional survey.
“3. That such bottomhole location is one that either is not in direct violation of a condition or limitation placed in the Permit to Drill, or is not in violation of a specific Commission order.
(a) Example: Denial order for a Rule 37 application for a comparable location.
“4. That the present operator of such well or his predecessor has not filed either a false inclination or a false directional survey with the Commission.
“A well that is either (1) bottomed off the lease or (2) deviated after the adoption of Rule 54 or (3) drilled in direct violation of a specific condition or limitation placed in the Rule 37 permit or (4) is in violation of a specific Commission order, is an illegal well and it shall not be permitted, and such well where permit is refused shall not be considered a replaceable well under Commission replacement well regulation.
“The foregoing instructions do not preclude an operator from applying for a location as a reasonable location under the rules and regulations now applicable.”

This memorandum clearly shows the Commission’s position that a well that was deviated, but not bottomed out from under its own lease, should be classified as a legal well and be allowed to produce until a hearing could be had to determine whether the new bottomhole location was a reasonable one.

Plaintiffs contend that in approving the bottomhole location of Killingsworth No. 3 and Lathrop No. 6, the Commission failed to follow one of its tests of “reasonableness” as set out in the memorandum. In particular, plaintiffs point out the paragraph of the memorandum which provides as follows :

“3. That such bottomhole location is one that either is not in direct violation of a condition or limitation placed in the Permit to Drill, or is not in violation of a specific Commission order.
(a) Example: Denial order for a Rule 37 application for a comparable location.”

Plaintiffs argue that since both Killings-worth No. 3 and Lathrop No. 6 were deviated and bottomed beneath comparable locations which had been previously denied Rule 37 permits, the Commission, under this test of “reasonableness,” should not have approved these two bottomhole locations.

The burden is upon the plaintiffs to show that there is no substantial evidence to support the Commission’s implied finding that there had been no prior denials of permits to drill at surface locations comparable to subsurface locations where Killingsworth No. 3 and Lathrop No. 6 are bottomed. Plaintiffs introduced before the Commission an Examiner’s Memorandum and Commission order dated May 6, 1939, which denied Stewart’s application to move Killingsworth No. 3 some 200 feet west of the stated surface location in the original permit granted in 1935. Plaintiffs further introduced Stewart’s application and a Commission order of May 6, 1939, denying the application to drill proposed Lathrop No. 5 and No. 6 wells. As seen above, the Commission in 1940, did grant a permit to drill Lathrop No. 6.

The above evidence does show that certain applications to drill were denied, but the Commission impliedly found that such denied locations were not comparable to the present bottomhole locations of Killingsworth No. 3 and Lathrop No. 6. The record shows that one of the denied locations is over 340 feet from the bottom-hole of Killingsworth No. 3 and the other denied location is some 220 feet from the bottomhole of Lathrop No. 6. We cannot say plaintiffs carried their burden of proving there is no substantial evidence on which the Commission could treat these denied locations as not comparable to the bottomhole locations of the wells in question.

Stewart argues there is substantial evidence on which the Commission could base a finding that the bottomholes of Stewart No. 6 and Killingsworth No. 3 “reasonably comply” with their original permits.

The record discloses that neither of the permits which the Commission issued in 1935 and 1941 for the drilling of the wells in question contains a “straight-hole” clause. In fact, it was not until 1946 that the Commission adopted a policy of inserting such clauses in specific Rule 37 permits where the offset operators requested it. Both Killingsworth No. 3 and Lathrop No. 6 were drilled and completed prior to the Commission’s adoption of Statewide Rule 54, a detailed Rule regulating the deviation of wells. By its terms, it is not applicable to the wells in question. See Harrington v. Railroad Commission of Texas et al., supra. The Commission further considered the fact that neither well in question trespasses onto another’s land. There was also evidence before the Commission that the bottomhole locations of the two wells do not allow Stewart to produce any more oil than could be produced if the wells had not been deviated. In this regard, Mr. Douglas, a consultant petroleum engineer from Longview, testified in regard to the subsurface location of Killingsworth No. 3 as follows:

“Q. Would the bottomhole location of the well No. 3 do the same job as if it were drilled straight down?
“A. The bottomhole location, which is at the northwest corner of the Killingsworth lease, is not as good a location as if the well were drilled straight down at its present surface location.
“Q. One other question, Mr. Douglas. State whether or not in your opinion Austin E. Stewart has received any more oil from this well # 3 to date and during the time of its production than he would have had it been drilled straight down under the—
“A. No, sir. In fact, as I stated before, there is a good possibility that he received a lot less oil because the well has been, I understand, a top allowable since it was drilled.”

In regard to Lathrop No. 6 Mr. Douglas stated:

“Q. Now, that [Lathrop] # 6 well, would it do the same job that it is doing now if it was drilled straight down ?
“A. The # 6 well — put it this way: The present bottomhole location of the # 6 well, I feel, is not as good as a bottomhole location directly under the surface location, for the reason stated in the Kill-ingsworth; the water is moving from west to east and naturally it is going to reach the present bottomhole location before it would reach a surface location straight down. And also — this will be brought out on another exhibit — if the well was drilled straight down at the present surface location, there is a good indication that this well could be marginal today. And if it was marginal, producing on a calendar basis, that it naturally would produce more oil — be allowed to produce more oil than a top allowable well.
4* * * * * *
“A. I will put it this way: The present bottomhole location will not produce any more oil than a location drilled straight down. Does that answer your question?
“Q. Yes. In your opinion, have either of these leases, or will they in the future, recover any more oil by virtue of the fact that the wells are deviated up into one side or the other than they would have produced if the holes had been straight down ?
“A. I would say that they would recover no more oil, that is true.

The Commission could reasonably find from this testimony that Stewart had gained no advantage over the plaintiffs by reason of his wells being deviated. As noted at the outset, this court’s function is to determine the validity of the Commission’s order, and-not to decide whether on like testimony we would have made a similar or contrary holding. In the present case the Commission, after due notice and hearing, issued' its orders approving the bottomhole locations of Killingsworth No. 3 and Lathrop No. 6. If there is any legal basis for these orders, they must be upheld. See Harrington v. Railroad Commission of Texas et al., supra; Texas Employment Commission v. Hays, Tex, 360 S.W.2d 525, (1962). Stewart and the Commission justify the orders on the legal basis that the bottomhole locations of the wells in question reasonably comply with the original permits granted in 1935 and 1941. From a review of the entire record, this court cannot say that there is not substantial evidence to support such a finding.

The judgment of the District Court is reversed, and the permanent injunction dissolved.

NORVELL, J., dissenting.

WALKER, J., not sitting.


author: COLEMAN, Justice.

text:
    Frank REINA et ux., Appellants, v. STATE of Texas, Appellee.
    No. 14316.
    Court of Civil Appeals of Texas. Houston.
    April 2, 1964.
    Rehearing Denied April 23, 1964.
    Robert A. Scardino, Houston, for appellants.
    No brief filed for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment of the Court of Domestic Relations of Harris County, Texas, reaffirming, and refusing, to set aside, its previous judgment declaring Deborah Musil a dependent and neglected child.

Appellant, Hattie Mae Reina, the mother of said child, was absent from Harris County when the proceedings were held culminating in a judgment declaring the minor child to be dependent and neglected and terminating the parental rights of her parents. While no citation was served on appellant, the decree entered was valid since Article 2332, Vernon’s Ann. Civ.St., provides that a citation shall not issue when it appears from the petition that the parents do not reside in the county in which the petition is filed. De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, cert. den. 65 S.Ct. 1196, 325 U.S. 862, 89 L.Ed. 1983.

In such event, however, either parent may demand a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed to authorize the entry of the judgment finding the child to be a dependent child. Hull v. Hull, Tex.Civ.App., 332 S.W.2d 758; Broome v. Edna Gladney Home, Tex.Civ.App., 295 S.W.2d 266.

The judgment appealed from recites that evidence was heard. There is no statement of facts before us and no findings of fact were requested of or filed by the trial court. On this appeal, in support of the judgment of the trial court, therefore, we must presume that the evidence before him on the second trial was sufficient to support an implied finding that the minor child was in fact a dependent and neglected child, as defined by Article 2330, V.A.C.S., on and before January 24, 1962, the date of the first trial. Saylor Chevrolet Co. v. Ellis, Tex.Civ.App., 336 S.W.2d 798; Weber v. Hesse Envelope Co., Tex.Civ. App., 342 S.W.2d 652; Gossett v. Local Union No. 185, Tex.Civ.App., 361 S.W.2d 957.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    The STATE of Texas et al., Appellants, v. Fred SULLIVAN, Nancy Lee Johnson Holland and H. R. Holland, Appellees.
    No. 11184.
    Court of Civil Appeals of Texas. Austin.
    April 8, 1964.

      Waggoner Carr, Atty. Gen., Ernest Fortenberry, Asst. Atty. Gen., Austin, for appellant.
    No brief filed for appellees.
   ARCHER, Chief Justice.

Appellants brought suit on behalf of the Texas Employment Commission for delinquent unemployment compensation taxes. Appellees defended on grounds that all their workmen were engaged in “agricultural labor,” which is exempt from taxation. Appellees’ sole business, the eradication of brush from ranch lands by means of chemical spraying, is described very accurately and fully in the Findings of Fact. The Trial Court entered judgment for the defendants.

The appeal is based on two points of error:

“Point I. The definition of ‘agricultural labor’ in the Federal Unemployment Tax Act, 26 U.S.C.A., Sec. 3306 (k) governs the case at hand, and the Trial Court erred in its Conclusions of Law (numbered B) to the contrary.
“Point II. The persons performing services for the defendants were not engaged in ‘agricultural labor’ within the meaning of Article 5221b-17(g) (5) (B), V.A.T.S. as stated in the Trial Court’s Conclusion of Law (numbered B). Consequently the Trial Court erred in entering judgment for defendants.”

Any employer in this State who is liable for taxes under the Federal Unemployment Tax Act thereby automatically becomes liable for State unemployment taxes by virtue of the definition of the term “employer” in Article 5221b — 17(f) (5), V.A.T.S., which reads as follows:

“ ‘Employer’ means: * * * (5) Any employing unit which is liable for the payment of taxes under the Federal Unemployment Tax Act for the current calendar year.”

The term “employing unit” is defined in Article 5221b-l7(e) as “any individual or type of organization * * * which has or, subsequent to January 1, 1936, had in its employ one (1) or more individuals performing services for it within this State.” The tax in question is levied on “employers” by Article 5221b-5.

Article 5221b-17(f) states the four different ways one may become an “employer” subject to the tax coverage of the Texas Unemployment Compensation Act: (1) by having four or more employees; (2) by acquiring the organization, trade or business of a liable employer; (3) by voluntary election; or, (4) by coming within the coverage of the Federal Unemployment Tax Act. It should be noted that the State’s petition simply alleged that the defendants were “employers” within the statutory definition without attempting to state which section of the definition of “employer” the defendants came under. Therefore, on the pleading, we may look to any of the four means by which one may become an “employer” to see whether the defendants fit the definition.

It appears clear that the defendants are liable for the payment of taxes under the Federal Unemployment Tax Act and thereby became liable for State unemployment taxes. The Federal Act, 26 U.S.C.A. § 3306, subsections (a) and (c), has the same basic coverage as the Texas Act, covering all employers of four or more persons. Like the Texas Act, Art. 5221b-17(f) (5) (B), the Federal Act, 26 U.S.C.A. § 3306 (c), exempts “agricultural labor;” however, the Federal Act goes on to define the term in Section 3306(k) as follows:

“For purposes of this chapter, the term ‘agricultural labor’ includes all service performed—
“(1) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;
“(2) in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;”

The Federal definition is the law, incorporated into the Texas Unemployment Compensation Act, in effect, by Article 5221b-17(f) (5), quoted herein.

We do not believe that the services in question were “in the employ of the owner or tenant, or other operator of a farm,” since such were not in connection with “raising or harvesting any agricultural or horticultural commodity, including the raising, * * * of livestock, * * *”

In Scofield v. Tinnin, 171 F.2d 227 (5th Cir., 1948) a case in which the taxpayer was engaged in a business like that of ap-pellee herein, the Court said:-

“Here the laborers were not employees of the 'owner or tenant. The employer owned no land. The work done was not incidental to farming; it was -the sole occupation of the Ap-pellee. His work was a prelude to farming and ranching. The taxpayer was engaged in the improvement, but not in the farming, of land. He neither sowed nor reaped. His compensation came from the United States; his work was in conformity with the requirements of the Government. We, therefore, think that his enterprise was commercial and not agricultural as the latter term is above defined.”'

In Bennett v. Banks, 158 So.2d 290, the Court of Appeal of Louisiana, First Circuit, a case in which the facts are very similar to the facts in the case under consideration, it was held that the State Unemployment Compensation Tax Statute providing that any services shall be deemed to be in covered employment if a tax is required to be paid with respect to such services under any Federal law, does not violate constitutional provision prohibiting adoption of code or system of laws by general reference.

The decision in the case fully discussed the laws with reference to State Unemployment Tax and the tax imposed under the Federal Unemployment Tax Act.

The judgment of the Trial Court is reversed and judgment rendered for appellant for the taxes as prayed for.


author: HUGHES, Justice.

text:
    Chester R. MORRIS, Appellant, v. Sam A. HOERSTER et al., Appellees.
    No. 11164.
    Court of Civil Appeals of Texas. Austin.
    April 1, 1964.

      Chester R. Morris, in pro se.
    Waggoner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellees.
   HUGHES, Justice.

On March 28, 1963, Chester R. Morris filed suit against Sam A. Hoerster, Superintendent of the Austin' State Hospital, John T. Middleton, Chief of Social Service- at the Austin State Hospital and Pat Bailey, Assistant Attorney General of the State of Texas, in which he sought issuance of a Writ of Mandamus ordering and directing those named to produce and permit the inspection, copying and photographing of certain records of the Austin State Hospital pertaining to himself, Chester R. Morris.

Appellees replied to this suit by filing a plea in abatement alleging that appellant had not exhausted his legal remedies, and particularly alleging that a discovery action brought by appellant pending on appeal in this Court, being our Cause No. 11,108, Tex.Civ.App., 368 S.W.2d 639, “shows as a matter of law that plaintiff not only has a legal remedy but has not exhausted it.”

Appellant filed a sworn reply to this plea in abatement from which we quote:

“Perhaps the condition that is most clearly not met by the other remedy in this case, is the fact that the other alleged remedy is clearly not speedy. Plaintiff filed said suit for a bill of discovery in cause no. 118,818, Morris v. Hoester and Middleton in August 1960 and plaintiff has diligently prosecuted said cause no. 118,818 ever since said cause no. 118,818 was filed but has not to date received relief. Said cause no. 118,818 has been on appeal a second time from a second entry of final judgment by the trial court. Plaintiff filed his brief in the second appeal on April 15, 1963.
“ * * * The entry of an adverse judgment by the trial court shows that the remedy sought in cause no. 118,818, is not certain.
“ * * * It was necessary to file and application for writ of mandamus with the Court of Civil Appeals to get any kind of action other than orders granting motions for continuances, Morris v. Jones, Hoerster and Middleton, 363 S.W.2d 291, in said alleged other remedy. This proves that said discovery-action is not as convenient as a remedy by mandamus but that said discovery action is tedious.”

Appellant filed a motion for summary judgment and a supporting affidavit from which we quote:

“Plaintiff is 55 years of age and was born March 26, 1908. Plaintiff is and has been continuously since his twenty-first birthday on March 26, 1929 a person of sound mind. In particular plaintiff was a person of sound mind on February 1, 1956.
“Ill
“Plaintiff was confined at Austin State Hospital in 1956. Plaintiff was admitted to Austin State Hospital February 2, 1956 and dismissed March 15, 1956. Since plaintiff was dismissed from Austin State Hospital, plaintiff has been to Austin State Hospital five times to request to see his medical records. The request to see the medical records concerning plaintiff has been refused each time. The first visit to Austin State Hospital to see said medical records concerning plaintiff was in late 1957. Later visits by plaintiff to see said medical records at Austin State Hospital concerning plaintiff were on July 14, 1960, July 22, 1960, June 30, 1961 and December 27, 1962. On the June 30, 1961 visit plaintiff talked to defendants Hoerster and Middleton in defendant Hoerster’s office. Plaintiff talked to defendant Middleton on each of the visits and also to an assistant to defendant Middleton on July 14, 1960.
“IV
“Failure to release said information in said records at Austin State Hospital to plaintiff unnecessarily and unjustly interferes with plaintiff obtaining employment. If employers obtain said information, plaintiff is unable to give his side of the story and answer the same. If employers cannot obtain said information, said information is assumed worse than it is and as bad as it could possibly be in light of said employers’ knowledge. Since November 16, 1955 plaintiff has contacted more than 700 employers many of them two or more times. Offers have been received but the offers have been withdrawn and a teaching contract revoked. Plaintiff needs information in said records at Austin State Hospital to make proper explanations to employers or prospective employers and to determine-a suitable position. As a result of being unable to obtain information in-, records at Austin State Hospital and' University of Texas, plaintiff has been, unable to obtain or to hold employment.”

By supplemental affidavit, appellant stated:

“As further evidence to show that the other alleged remedy is not certain, the Court of Civil Appeals dismissed the appeal in the discovery action, cause no. 118,818 (no. 11,108 in the Court of Civil Appeals) for want of jurisdiction on May 29, 1963 and overruled the motion for rehearing on June 12, 1963. This plus the adverse judgment of the trial court is sufficient to show that the other alleged remedy is not certain.”

No response was made by appellees to> any factual averment made by appellant..

We judicially know that the discovery efforts of appellant, referred to by.-appellees as showing that appellant has an' unexhausted legal remedy, have terminated', in a complete and dismal failure. Morris v. Hoerster, Tex.Civ.App., 368 S.W.2d.639, writ ref., n. -r. e.-, Tex., 370 S.W.2d 451, cert. denied by the United States Supreme Court, 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed. 2d 614.

The Trial Court rendered judgment sustaining appellees’ plea in abatement and dismissing appellant’s suit.

We held in Morris v. Hoerster, Tex.Civ.App., 348 S.W.2d 642, writ ref., n. r. e., that the Austin State Hospital was not authorized by law to refuse disclosure of its records to appellant in so far as they related to him personally. In spite of our decision, the record here reflects that Dr. Sam A. Hoerster, Superintendent of the Austin State Hospital and John T. Middleton, Chief of Social Service at such hospital, have persisted in their refusal to permit appellant access to these records.

The records which appellant desires to inspect are public records and while not available for inspection by the general public, they are, under the law, accessible to inspection by appellant. The remedy for refusal of the right of inspection of public records is the remedy pursued by appellant, mandamus. Tobin v. Knaggs, Tex.Civ. App., 107 S.W.2d 677, San Antonio Civil Appeals, writ ref., 45 Am.Jur., p. 434. See Annotation on this subject in 169 A.L.R., p. 653. It is our opinion that the Court erred in dismissing appellant’s suit as to Dr. Hoerster and Mr. Middleton and in not granting appellant’s motion for summary judgment, except as to Mr. Bailey.

Appellant'filed a motion to bar the Attorney General of Texas from representing appellees in this case. This motion is without merit. Rule 12, Texas Rules of Civil Procedure, provides that any defendant bra suit may question the authority of .counsel for plaintiff to prosecute the suit. There is no similar provision by which a plaintiff may question the authority of counsel to appear for a defendant. See Angelina County v. McFarland, 374 S.W.2d 417, Texas Supreme Court.

No cause of action was alleged or proved against Assistant Attorney General Pat Bailey and dismissal as to him was proper and is affirmed.

In all other respects the judgment of the Trial Court is reversed and judgment is here rendered granting appellant a writ of mandamus as prayed for by him against appellees Dr. Hoerster and Mr. Middleton.

Affirmed in part; in part reversed and rendered.

      . This case was brought to trial only after we ordered that it should be tried without delay. Morris v. Jones; Tex.Civ.App., 363 S.W.2d 291.

      . In Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, Tex.Sup., it was said, “We held that where there was a final judgment rendered in a cause, which was ap-pealable (and was appealed), the appellate court could act upon a denial motion for. summary judgment, if the point has been properly preserved.” There was a final judgment here. It was appealed.-. The point complaining of overruling appellant’s motion for summary judgment has been properly preserved.


author: CHADICK, Chief Justice.

text:
    H. L. LONG et al., Appellants, v. HUMBLE OIL & REFINING COMPANY, Appellee.
    No. 7549.
    Court of Civil Appeals of Texas. Texarkana.
    March 17, 1964.
    Rehearing Denied April 14, 1964.

      Gordon Wellborn, Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, Erich F. Klein, Jr., Lyne, Blanchette, Smith & Shelton, Dallas, Fred Erisman, Longview, Angus Wynne, Dallas, for appellants.
    Frank L. Heard, Jr., Howard Naughton, L. J. Moore, Plouston, Ramey, Brelsford, Hull & Flock, Tyler, for appellee.
   CHADICK, Chief Justice.

This case was pending on the trial docket of the 4th Judicial District of Rusk County when, in response to a motion for a change of venue as authorized by Rule 257, Vernon’s Annotated Texas Rules of Civil Procedure, the trial judge ordered it transferred to the 114th Judicial Court of Smith County.

The defendants, H. L. Long, R. B. Gilmore, H. W. Bullion, Betty Virginia Long, individually and as Trustee for John Steven Long Trust, Larry Thos. Long Trust, Charles Edward Long Trust, and Lawrence Allen Long Trust, Jack I. Potter, individually and as Trustee of the Teddy Lee Potter Trust No. 1; Teddy Lee Potter, Harry L. Caserta, Valley Royalty Corporation, Republic National Bank of Dallas, Charles Stubblefield, H. G. Corporation, and Southwestern Life Insurance Company, gave notice of appeal from the trial court’s order and the record has been timely lodged in this court.

The plaintiff, Humble Oil & Refining Company, and intervenor, Texaco Incorporated, as appellees, have filed a motion to dismiss the appeal because the trial court’s order is interlocutory and not independently appealable.

In this opinion a motion authorized by the provision of Rule 257 will be termed a “prejudice motion”. And to differentiate, the term “plea of privilege” will be applied to applications designed to require a suit to be tried in a statutory county (or precinct) of venue because of subject matter or parties, as provided by Art. 1995, Art. 2390 and the numerous special venire articles to be found in the 1925 Revised Civil Statutes as amended.

Two Court of Civil Appeals cases, Byer v. Dallas Power & Light Company, 290 S.W.2d 948, N.W.H., and the City of Irving v. Luttrell, 351 S.W.2d 941, N.W.H., have decided the legal issue presented by the appellee’s motion to dismiss. These decisions reached opposite conclusions. In the Byer case it was decided that the order of the trial court overruling a prejudice motion was interlocutory and not the subject of a separate appeal. The appellee’s motion to dismiss an appeal therefrom was sustained. In the other, the City of Irving case, the Court of Civil Appeals refused to dismiss an appeal from the trial court’s order sustaining a prejudice motion.

Procedure governing the prejudice motion is prescribed wholly or in part by Rules 257, 258, 259, 261, 324 and 325. These rules set the motion up and treat it as a part of an independent proceeding, and nothing is found in them expressly or impliedly subjecting a prejudice motion to the provisions of Art. 2008 or any other statutes or rules of practice governing plea of privilege applications. It is regarded as an independent proceeding by the eminent legal scholar, Roy W. McDonald, author of Texas Civil Practice. In 1 Texas Civil Practice 319, Sec. 401, following a short discussion of the plea of privilege practice, which he described as a “distinct step in pleading and pre-trial procedure”, this respected writer says: “To be distinguished are motions which seek a change of venue because of local prejudice. The problems they raise differ in their nature, and the procedure for their handling is controlled by different rules.” In 3 Texas Civil Practice, Secs. 10.19, 10.20 and 10.21 are devoted to the procedure applicable to prejudice motions.

The appellants squander no energy arguing that the order overruling the prejudice motion is not interlocutory in character, but concentrate their effort on the proposition that the order is made appealable by Art. 2008. Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, and Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223 are cited as primary authority to support the proposition. On close examination the Shell case appears to be limited by its own language, as well as, by the explanation in the later case of Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391, to the proposition that Art. 2008 is applicable to proceedings in plea of privilege-applications invoking the county (or precinct) of venue provisions of Art. 1995, Art. 2390, and the many special venue articles referred to in an earlier paragraph.

Unquestionably the trial court’s order changing venue is interlocutory, and as no provision for appeal therefrom is provided’ by statute, the appellee’s motion to dismiss-the appeal must be granted. It is so ordered and tlie appeal is dismissed.

DAVIS, J., disqualified and took no part in the disposition of the case.

      . ‘-Come Now IIUMBLE OIL & REFINING COMPANY, Plaintiff, and TEXACO INC., Intervenor, in the above entitled and numbered cause, and file this, their Application for Change of Yenue under Rule 257 of Texas Rules of Civil Procedure, and for grounds would show unto ■the Court as follows:
      “I.
      “That there exists in the County where this suit is pending so great a prejudice against the causes of action asserted by Plaintiff and Intervenor and against Plaintiff and Intervenor themselves that they cannot obtain a fair and impartial trial.
      “II.
      “That there is a combination against said Plaintiff and Intervenor and the causes of action by them asserted in this cause instigated by influential persons in Rusk and Gregg Counties, and by reason thereof, Plaintiff and Intervenor cannot expect a fair and impartial trial; that ■said influential persons include persons (their agents, employees and those acting in concert with them) who have an interest in the outcome -of this Mtation because of property interests owned in the ‘Mary Smith’ leases or other leases on which alleged directionally drilled wells are surfaced, and because some of them, or their friends, are under terminal indictments growing out of the taking of oil through directionally drilled oil wells.
      “m.
      “That in addition to the foregoing, there exist other sufBcient causes for the transfer of this cause by reason of fixed opinions in the minds of such a large percentage of persons in Rusk County as to the facts and merits of this controversy as a result of wide publicity given to the criminal and civil controversies growing out of the ‘slant-hole’ investigations and the previous hearings in this and other such cases.
      “WHEREFORE, presenting the attached affidavits in support hereof, Plaintiff and Intervenor pray the Court to change the venue of this cause in accordance with Rule 259 of Texas Rules of Civil Procedure to a county that is free from the above objections.”

        . The most, if not all, of these special venue articles may be found in Clark’s Yenue in Civil Actions, p. 183, Chap. 30; see also Venue in the index to Vernon’s Texas Civil Statutes; 1 Texas Civil Practice 417; Sec. 437 and footnotes.


author: FANNING, Justice.

text:
    Mrs. J. A. GREGORY et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
    No. 7517.
    Court of Civil Appeals of Texas. Texarkana.
    March 31, 1964.
    Rehearing Denied April 28, 1964.
    Jones, Brian, Jones & Baldwin, Marshall, Howard S. Smith, Sulphur Springs, for appellants.
    O. O. Touchstone, Dallas, Joe N. Chapman & Ray Johnson, Sulphur Springs, for appellee.
   FANNING, Justice.

This is a suit for. damages’as the result of a crossing collision between appellee’s train and an automobile driven by Thomas Ray (Butch) Gregory in which accident he was killed, his father J. A. Gregory was killed, infant Douglas McCord, the grandson of J. A. Gregory was killed, and infant Mark Gregory, about 2)4 years of age and the grandson of J. A. Gregory, survived the accident but received very serious personal injuries. The crossing was at a dirt road and the railroad tracks of appellee railroad about 3 miles west of Sulphur Springs in Hopkins County, Texas. The dirt road in question led from the home of J. A. Gregory, which home was north of the railroad crossing and led south from the crossing to the highway between Sulphur Springs and Commerce. Trial was to a jury upon special issues resulting in a verdict upon which the trial court entered judgment in favor of appellee railroad. Plaintiffs-appellants’ amended motion for new trial was overruled. The trial court heard evidence relating to jury misconduct and made findings of fact and conclusions of law thereon, finding in essence that jury misconduct was shown (as hereinafter more particularly related) but concluded that the misconduct was not material and that it did not probably result in any injury to plaintiffs or in the return of an improper verdict. Appellants have appealed and their appeal principally centers around jury misconduct and the injection of a “no insurance” matter by appellee’s counsel. Other contentions are also made as hereinafter related.

Plaintiffs-appellants in. their pleadings after describing the collision in question, and alleging failure of appellee railroad company and its train crew to ring the bell and sound the horn, failure to keep a proper lookout and the operation of its train at an excessive speed, in addition thereto also specifically .set out in considerable detail the maintenance by. defendant-appellee of a dangerous and extra-hazardous crossing essentially because of the fact that said crossing would drag or hang automobiles as they attempted to negotiate the crossing.

As above related, all of the occupants in the automobile, except the infant Mark Gregory, were killed. The infant Mark Gregory, who received severe injuries, was 2(4 years old at the time of the accident, and was of course too young to testify at the trial. Plaintiffs-appellants presented some witnesses whose testimony would raise an issue of fact on whether the whistle was blown or the bell was rung. However, the train crew of appellee’s train (Engineer Shirey, Fireman Philpot, both in the locomotive engine, and Brakeman Patton and Conductor Simpson, riding in the caboose) testified very strongly on the blowing of the whistle and the ringing of the bell, including short emergency blasts just before the collision in question.

Fireman Philpot, a living eyewitness of the collision, testified that the automobile in question “stopped seven to nine feet from the nearest rail”, coming to a “complete stop and then starting up”, that he watched the car come up on the rail and that “he was up there and stopped, I would say, seconds before we ever hit him, but he was completely stopped on the rails”, and that the engine then hit. the car “pretty much broadsided”. Mr. Philpot further testified:

‘Q. Now when he got up on that track, if his car hadn’t stopped, would he have had time to get across ?
“ ‘A. Had plenty of time.
“ ‘Q. But when his car stopped up there for some reason, you don’t know the reason ?
“ ‘A. I don’t know the reason.
“ ‘Q. It never moved?
“‘A. (Witness shakes head).
“ ‘Q. Did you' see him making any effort to start his car and get off’ the track ?
“ ‘A. Sure didn’t.
“ ‘Q. But he had plenty of time?
“ ‘A. He had plenty of time.
“ 'Q. If his car was in good condition ? ‘“A. Right.’”
* * * * * *
“ ‘Q. Really, then he would have cleared the track if something hadn’t happened to cause that car to stop on that track, that was your testimony?
“ ‘A. That’s right.’ ” ******
“ ‘Q. You don’t know what caused it to happen ?
‘“A. Sir?
“ ‘Q. Do you know anything about what caused it to happen to the car?
“ ‘A. I don’t know.’ ”

Engineer Shirey was also a living eyewitness of the collision. We quote from his testimony in part as follows:

“ ‘Q. If I understand you, sir, at the time when you were about ISO feet from the crossing, you first saw the car?
“ ‘A. Yes, sir.
“ 'Q. At that time it was literally astride your rails of your railroad track ?
“ ‘A. Yes, sir.
‘Q. Isn’t it true that unless something occurred to keep that car where it was or to turn it around, isn’t it true that if the car had moved on off the track that it would have had plenty of time to clear before your train struck it ?
“ ‘A. Yes, sir, I believe it would.
“ 'Q. So really the sole and only cause for the collision, the collision itself, the sole and only cause was the fact some reason, unknown to you, this car did not move off the track?
“ ‘A. Right.’ ”

It is appellants’ view that the lawsuit centered primarily around the cause for the car’s stoppage on the track in front of the locomotive when it had plenty of time to cross ahead of the train and that the condition of the crossing (whether extra-hazardous or not) became the central issue in the case. While there were many other issues in the case we are inclined to agree with appellants’ view in the above respects. We have examined the lengthy statement of facts and find that a very large portion of it, if not the major portion of it, dealt with evidence as to the condition of the crossing. Plaintiffs produced a large number of witnesses who testified as to various defects and adverse conditions at defendant’s crossing. Among the defects and adverse conditions were briefly in essence the following: The crossing was very rough, there was not enough ballast on the tracks, the rails were an obstacle to go over, that the cross-ties between the rails were not properly covered by ballast, that some of the witnesses testified to actually getting “hung” on the crossing, some were “hung” one time, others two or three times, and another witness, four times. Other witnesses who did not get “hung” on the rail testified to “scraping the rail” and some testified as to their motors becoming “stalled” on the rough crossing. In short, if plaintiffs’ witnesses had been fully believed, the jury would have had very strong and ample testimony to support a finding that the crossing was an extra-hazardous one, as defined by the trial court in his charge. Likewise, the defendant railroad company-produced a number of witnesses who testified to countering testimony to the effect that the crossing was not unusually rough, that proper ballast was between the rails, that they had not' “hung” on the rails or had the trouble related by plaintiffs’ witnesses in negotiating the crossing, and in short defendant-appellee produced evidence from a number of witnesses countering the evidence produced by plaintiffs’ witnesses with respect to whether the crossing was extra-hazardous or not. There was also a dispute as to whether the railroad company or someone else placed gravel or rock ballast upon the crossing shortly after the collision.

Strenuously contested was the matter of whether the cause of the Gregory’s car stoppage on the tracks was the result of an extra-hazardous crossing or for some other reason. Defendant by cross-examination questioning of some of plaintiffs’ witnesses sought to bring out evidence to the effect that there was a defective carburetor in the Thomas Ray Gregory car and in effect inquired about whether Thomas Ray Gregory “had been pushed off the street in Sulphur Springs” while he was having trouble with the car. However, no evidence of probative force was ever produced from the witness stand by any witness showing that Thomas Ray Gregory was having carburetor trouble shortly prior to the collision in question and there was no evidence produced from the witness stand by any witness that Thomas Ray Gregory’s car was defective in any way at the time of the collision.

The jury findings were in essence in the main as follows: (1) the railroad failed to maintain the crossing in question in such condition as to admit of free and easy vehicle passage but (2) this did not make the crossing extra-hazardous; (6, 7, 8, & 9) the occupants of the Butch Gregory car were in a discovered position of peril from which the train operatives realized they might not or could not extricate themselves, but that the discovery was not made in time by the train operatives; (13) that thei'e was a failure to sound the horn and (16) ring the bell, (14 and 17) each of which was negligence but (IS and 18) neither of which was a proximate cause of the collision. Both the train operatives and Butch Gregory were absolved of the failure to keep a proper lookout. (Issues 19 and 22). The jury further found to the effect that Butch Gregory did not fail to keep his automobile under proper control. (Issue 24). The collision was found not to be unavoidable. (Issue 54). The jury also found that the crossing in question was a private crossing (Issue 29).

While the jury found to the effect that Butch Gregory had his automobile under proper control as it approached the tracks (Issue 24) and that while his failure to yield the right-of-way to the train was negligence that it was not a proximate cause of the collision (Issues 26, 27 and 28), and it was also further found by the jury to the effect that Gregory stopped the automobile within less than 15 feet of the tracks whén the train was within 1500 feet of the crossing and was an immediate hazard and plainly visible (Issues 30-34), but that such stopping was not a proximate cause. (Issue 35).

The jury further found to the effect that Butch Gregory did not stop the automobile on the tracks, (Issue 38), did not permit the automobile to stall on the crossing (Issue 41), and that while he did fail to drive the car forward from its position on the tracks at the time of collision, this was not negligence. (Issues 44 and 44 — A).

The jury further found to the effect that the failure of Butch Gregory to heed the air horn (Issues 46 and 47) and the bell (Issues 50 and 51) was both negligence and a proximate cause, each being sounded prior to the collision (Issues 48, 49, 52 and 53), and that there was no joint enterprise between Butch and his father (Issue 61). The damage issues were also answered. (Issues 56-60).

Appellants with respect to such jury findings make the following query and argument in their brief:

“QUERY: If Butch neither stopped nor permitted the automobile to stall on the tracks, but yet failed to drive it forward from the tracks when there was plenty of time for him to do so, the real cause of the collision being his failure to leave the tracks (Engineer Shirey and Fireman Philpot, this brief, pp. 3-5, supra), then what caused the car to remain on the tracks? It wasn’t the condition of the crossing, said the jury (Issue 2). The car certainly ‘stalled or stopped’ (Philpot to Loyd, S.F. 243) on the tracks.
“CARBURETOR FAILURE could have caused the car to stop or stall, and would fully explain the jury’s findings consistent with the most favorable view of the defendant’s evidence. But, there isn’t a line of evidence in this record anywhere of any carburetor malfunction in the Butch Gregory car —OR, IS THERE? AND WHERE IS THE ‘EVIDENCE’?”

Following this query and argument appellants in their brief contend to the effect that there is no evidence in the record from any witness on the witness stand that Butch Gregory had had any carburetor trouble with his car shortly before the collision but that the juror Bradford injected this matter by relating to the juror Anderson that he had heard that Butch Gregory had had carburetor trouble the day before the collision and further to the effect that the juror Bradford was guilty of gross misconduct in going out and talking to storekeeper Vaughn about matters material to the case during the trial of the cause, having also talked to Vaughn prior to becoming a juror in the case. Appellants attack the misconduct of juror Bradford by the following four points:

“T. The concealment by juror Bradford of his knowledge of carburetor trouble, his investigations and conduct during the trial, were and are so inimical to standards of fairness of trial that the burden of proof of harm is met, prima facie, by showing the improper acts themselves and nothing more.
“ ‘2. The admitted and trial-court-found misconduct of juror Bradford was both material and probably resulted in injury to these plaintiffs.
“ ‘3. Juror Bradford was a disqualified juror which fact was not discovered until after verdict, and because of which fact a new trial should be granted herein.
“ ‘4. Plaintiffs having unknowingly tried the case with a disqualified juror, they were denied their right of trial by jury, constitutionally guaranteed.’ ”

The trial court heard evidence with .respect to the misconduct of juror Bradford and made findings of fact and conclusions of law. We quote in part from such findings and conclusions in footnote 1 below. Additional findings and conclusions of the trial court are quoted in part in footnote 2 below.

Under our system of jurisprudence, parties litigant are entitled to a verdict returned by each of the twelve jurors solely upon the law and the evidence permitted by the court to be introduced upon the trial. Southern Traction Co. v. Wilson, Tex.Comm.App., 254 S.W. 1104. Cases must be tried in the courtroom and a juror is not permitted to be a witness and it is misconduct for a juror to give original evidence to the jury or to other jurors and it is misconduct for a juror to go out and seek evidence. In fact the trial court in his charge in this cause cautioned the jury to refrain from the very things that the record shows that juror Bradford did.

The fact that the misconduct of juror Bradford related mainly to himself together however with his statement to the juror Anderson, and was not conveyed to the other 10 jurors will not excuse the misconduct as it is well established that if the misconduct influenced the verdict of even one of the jurors, the verdict should be set aside. Texas Electric Ry. Co. v. Wooten, Tex.Civ.App., 173 S.W.2d 463, wr. ref., w. o. m.; Moore v. Ivey, Tex.Comm.App., 277 S.W. 106; Texas & Pacific Rwy. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307, 309.

Misconduct on the part of juror Bradford is shown by undisputed evidence in the record as well as by the findings of the trial court.

Where jury misconduct is established, the question of whether injury probably resulted therefrom to the complaining party is a question of law for the reviewing court. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Cloudt, et al. v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643, wr. ref., w. o. m.

In our opinion, it reasonably appears from the evidence adduced on the motion for new trial, and from a careful consideration of the entire record, that the misconduct of juror Bradford was material misconduct and probably resulted in injury to the plaintiffs-appellants herein and that a new trial should be granted by reason thereof under Rule 327, Texas Rules of Civil Procedure. Appellants’ second point is sustained.

Having found that the misconduct of juror Bradford was material and probably resulted in injury to plaintiffs, we deem it unnecessary to pass on the contentions made by appellants in their first, third and fourth points.

Appellants’ 5th point is as follows : “The conduct of railroad counsel in telling the jury on voir dire examination that there was 'no insurance here’ was material and prejudicial error, for which a new trial should be granted on the basis of the whole record.” Upon voir dire of the jurors by appellee’s counsel, the following occurred:

‘Q. (by Mr. Touchstone) You have never served on a jury?
‘A. Yes, I have, an insurance case.
“ ‘Q. There is no insurance here.
“ ‘A. And I have also served on a theft case * * * ’ ”.

Plaintiffs-appellants filed a motion for the trial court to instruct the venire that the statement in question was improper and withdrawn from consideration and for the venire to give it no effect whatsoever. Appellants in their brief refer to certain discussions which followed between the attorneys and the trial court. However, these discussions are not related here as the record shows that such discussions were had outside the presence of the jury. After the discussions the trial court gave the following instruction to the venire: “Ladies and gentlemen of the panel, let me have your attention, please. Mr. Touchstone, attorney for the defendant, mentioned in your presence there is no insurance in this case. You are instructed to disregard such statement and you will give it no effect whatever. * * * ”

Unquestionably, the mention or injection, of “no insurance” in the case by appel-lee’s counsel was improper. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962, opinion adopted; Dennis v. Hulse, Tex., 362 S.W.2d 308.

However, the injection of - either insurance or “no insurance” in a case, while improper, does not require reversal of a case unless it is shown that such error was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. And to determine whether such error is reversible under Rule 434, T.R.C.P., the entire record must be examined. Dennis v. Hulse, supra.

After carefully considering the entire record in this cause, it is our best judgment that appellants’ fifth point does not present reversible error. See Roosth & Genecov Production Company v. White, Tex.Civ.App., 281 S.W.2d 333, wr. ref., n. r. e., and the numerous authorities cited therein. Appellants’ fifth point is overruled.

Appellants’ 6th point is as follows: “The cumulative effect of the foregoing misconduct of juror Bradford and the conduct •of railroad counsel was so material and harmful that a new trial should be granted herein.”

We sustained appellants’ second point and are reversing this cause primarily by reason of material misconduct on the part of the juror Bradford which we concluded was harmful and reversible error. We overruled appellants’ 5th point holding that the injection of “no insurance”, while error was not reversible error under Rule 434, T.R.C.P. We sustain appellants’ 6th point. In this connection see the recent case of Rodman Supply Company v. Jones, Tex.Civ.App., 370 S.W.2d 951, and authorities cited therein. However, it is our view that irrespective of appellants’ 6th point that the cause should be reversed and remanded primarily on appellants’ 2nd point.

Appellants’ 7th point is as follows: “The verdict of the jury is contrary to the overwhelming weight and preponderance of the evidence.”

After carefully reviewing the entire record in this cause in the light of the tules enunciated in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our view that the verdict of the jury is not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ 7th point is overruled.

For the reasons heretofore set out the judgment of the trial court is reversed and the cause is remanded for a new trial.

      . “5.

        * * * *
      “A short time following the tram-car collision, which occurred on December 21, 1961, Newman Bradford, who was subsequently summoned for jury service after this case was filed, engaged in a conversation with Raymond Vaughn, in which conversation Vaughn made a statement to the effect that Butch Gregory (Thomas Ray Gregory, deceased) had been having trouble with the carburetor on his automobile on the day before the collision occurred.
      “6.
      “The conversation described above occurred long before this suit was filed on March 16, 1962, and long before Newman Bradford was summoned for jury service.
      “7.
      “During the course of the trial, and on or about Wednesday, December 12, 1962, juror Carl Anderson rode to his home as a passenger in an automobile driven by juror Bradford after court had adjourned for the day, and upon this occasion jurors Bradford and Anderson were the only occupants in such automobile.
      “8
      “While jurors Bradford and Anderson were thus traveling enroute to their homes, juror Bradford made a statement to juror Anderson to the effect that he, the said Bradford, had heard that Butch Gregory had been having trouble with the carburetor on his automobile the day before the fatal collision occurred.
      “9.
      “Except for this one statement made by juror Bradford to juror Anderson, neither the said juror Bradford nor juror Anderson mentioned or discussed the matter of the carburetor trouble with any other member of the jury, at any place or time, until after the jury’s verdict was returned and accepted.
      “10.
      “On or about Thursday, December 13, 1962, and being on the day following the above described conversation between jurors Bradford and Anderson, the said juror Bradford drove his automobile to the place of business of Raymond Yaughn to return a gasoline can which he had previously borrowed, and on this occasion had another conversation with the said Raymond Vaughn.
      “11.
      “During the course of this last conversation juror Bradford asked the said Raymond Vaughn, in effect, whether or not the said Vaughn, shortly after the collision had occurred, had stated that on the day preceding the collision Butch Gregory had been having trouble with the carburetor on his automobile; and Vaughn made no reply to this inquiry, but, as described in the testimony, merely ‘laughed it off’.
      “12.
      “On the occasion of this last conversation between juror Bradford and Raymond Vaughn there was some discussion about the previous experience of the said Raymond Vaughn at some railroad crossing other than the one involved in this suit and some discussion of stopping distance of an automobile at a certain speed not disclosed in the evidence; and the weight of the evidence does not show that the discussion about a crossing and stopping distance were material ns to the facts or issues of this suit.
      “13.
      “Juror Newman Bradford was guilty of misconduct in inquiring of Raymond Vaughn as to the condition of the carburetor on the car of Butch Gregory on the day prior to the collision.
      “14.
      “Juror Bradford did not relate, discuss with, or mention to any other jurors, at any place or time prior to the return of the jury’s verdict, the fact of his conversation with Raymond Vaughn on or -about December 13, 1962, nor any of the
      matters which were the subject of such conversation.
      “15.
      “There was no agreement or understanding among the members of the jury ■to answer the issues submitted to them in such a manner as to bring about a judgment in favor of either the plaintiffs or the defendants, or in such a manner as to apportion responsibility for the accident between the parties.
      “16.
      “Juror Newman Bradford truthfully answered all questions propounded to him on voir dire examination of the jury panel and he did not intentionally misrepresent any fact touching his qualifications as a juror during such voir dire examination.
      “17.
      “The statement made by Raymond Vaughn to Newman Bradford shortly after the occurrence of the accident and prior to the time this suit was filed had no material effect on the verdict of the said juror Bradford.

        “Conclusions of Law

      “1.
      “Considering the testimony which was adduced at the hearing on Plaintiffs’ amended motion for new trial in conjunction with the entire record in this cause, it does not appear that the misconduct of juror Bradford, either in his statement to juror Anderson or in his subsequent conversation with Raymond Vaughn, probably resulted in injury to the plaintiffs or in the return of an improper verdict.
      “2.
      “The statement made by Raymond Vaughn to Newman Bradford shortly after the occurrence of the accident and prior to the time this suit was filed has no material effect on the verdict of the said juror Bradford.”

      . “I.
      “With reference to the first four additional findings requested by plaintiffs, the court finds as follows:
      “1. Several times during the first week of the trial of this cause, and also during the first three days of the second week of the trial, the Court admonished the jury not to discuss the facts, or purported facts of tile case, either among themselves, nor allow anyone to discuss same with them.
      “2. In a talk to the complete venire before the jury was selected, and at least once during the trial of this cause, in the first day or so thereof, the Court admonished the jury not to try to make any investigation of the facts, or purported facts, themselves, because the same would constitute misconduct, and such misconduct could result ‘in all our efforts being wasted.’
      “3. The Court, having stated to the jury that it was conceivable that some members thereof might have occasion to drive by the scene of the collision in question during the course of the trial, admonished them during the first week of the trial not to undertake any investigation or personal observations of any kind.
      “4. The court, at the beginning of the trial, told the entire jury, including Newman Bradford, ‘not to go out and seek information’ on their own, ‘or look for evidence.’
      “n.
      “With reference to additional findings numbered 5, 6, 7, and 8, requested by the plaintiffs, the Court refuses to make such findings.
      “III.
      “With reference to additional finding No. 9 as requested by plaintiffs, tbe court makes the following finding:
      “9. Jurors Anderson and Bradford rode home together only once during the trial as found in tbe court’s original finding No. 7 and that occurred during the second week of the trial prior to Friday, on which day the jury received the charge of the court.
      “IV.
      “With reference to additional findings Nos. 10 and 11 requested by plaintiffs, the court finds as follows:
      “10. Newman Bradford told Raymond Vaughn at the Vaughn store, during the second week of the trial, that Bradford had been looking for Vaughn up at the courthouse as a witness because Vaughn had told Bradford that Butch Gregory’s car died or his carburetor was out of shape the day before the accident.
      “11. During the visit of juror Bradford at the Vaughn store during the second week of the trial, Bradford and Vaughn discussed how long it would take to stop a ear traveling a certain speed, and so on.
      “V.
      “With reference to additional finding No. 12 requested by plaintiffs, the court finds as follows:
      “12. The discussion found in No. 11, supra, was in regard to the Gregory lawsuit, but not material to the facts of issues therein.
      “VI.
      “With reference to additional finding No. 13 as requested by jfiaintiffs, the court refuses to so find.
      “VII.
      “With reference to additional findings Nos. 14 and 15 requested by plaintiffs, the court finds as follows:
      “14. Juror Bradford brought up with juror Anderson the fact about the carburetor, when they rode home together during the second week of the trial and wondered why they hadn’t brought it out.
      “15. The ‘carburetor’ referred to was the carburetor on the Butch Gregory car.
      “VIII.
      “With reference to additional finding No. 16 as requested by plaintiffs, the court finds as follows:
      “16. Juror Bradford told juror Anderson that he had heard, right after the accident on December 21, 1961, from Raymond Vaughn, that Butch Gregory had been having carburetor trouble on his car the day before such accident.
      “IX.
      “With reference to additional finding No. 17 as requested by plaintiffs, the court finds as follows:
      “17. Juror Bradford mentioned the matter of carburetor trouble on the Butch Gregory ear to juror Anderson one day and mentioned the same matter to Raymond Vaughn on the following day, as set out in findings Nos. 8 and 11 of the original finding of fact filed by the court, and these incidents both occurred during the second week of the trial.
      “X.
      “With reference to additional finding No. IS as requested by the plaintiffs, the court refuses to make such finding.
      “XI.
      “With reference to additional finding No. 19 as requested by plaintiffs, the court finds as follows:
      “19. Juror Bradford had knowledge of car trouble on the Butch Gregory car in the summer of 1961.
      “XII.
      “With reference to additional finding No. 20 as requested by plaintiffs, the court finds as follows:
      “20. Juror Bradford and Raymond Vaughn, during the second week of the trial, conversed with reference to: (a) the condition of the carburetor the day before the accident, (b) a railroad crossing, (c) an experience with a milk truck, (d) distances and sights at a railroad crossing, (e) stopping distances and experiences therewith of cars traveling a certain speed, and so on; but each such subject was mentioned or discussed only to the extent as specifically set out in the other findings made by the court.
      “XIII.
      “With reference to the additional conclusion of law as requested by plaintiffs, the court refuses to make such conclusion.”