author: CHADICK, Chief Justice.

text:
    The MORAN CORPORATION, Appellant, v. James E. MURRAY, Appellee.
    No. 7585.
    Court of Civil Appeals of Texas. Texarkana.
    July 7, 1964.
    Rehearing Denied Aug. 4, 1964.

      Darden, Fowler & Creighton, Conroe, for appellant.
    Pitts & Benardino, Conroe, for appellee.
   CHADICK, Chief Justice.

This is a suit for damage to landowner occasioned by salt-water from a break in the wall of a salt-water pit on an adjacent oil lease. The judgment of the trial court is reversed and the case is remanded for new trial.

The record discloses without'question that salt-water and "associated* fluid flowed from a break in the embankment of a salt-water pit on the defendant oil company’s lease to and upon the plaintiff’s land. Damages were awarded to the plaintiff on jury findings that the defendant negligently failed to provide adequate storage for saltwater from its producing oil well, and in trespassing upon the plaintiff’s land by allowing salt-water from the break to flow and intrude upon plaintiff’s premises.

The contents of the salt-water pit filled it to within one foot of the top of its earthen banks in the early morning of the day preceding the day the break in the pit wall was discovered. A full stream of fluid from a 2Y2 inch diameter pipe was observed by different witnesses to be discharging into the pit during the operation before the break and was still flowing until shut off shortly after the break was discovered. The well’s operation and production began in the early morning of the day preceding the break and was continuous during this period, though there is no direct evidence the stream of fluid into the pit was continuous for the entire period. Escape of the fluid was from a break that was progressively widening and deepening as the outflow continued. This is circumstantial evidence which will support the jury finding upon at least one, if not both, of the negligence issues the jury found to be the proximate cause of the plaintiff’s damage. See Scurlock Oil Company v. Roberts, Tex.Civ.App., 370 S.W.2d 755.

Having reached the tentative conclusion just expressed, other points of error must be considered. The next point reached is: “Point of Error No. 7. The error of the court in submitting to the jury an issue based upon a trespass theory of action”. The appellant oil company, defendant below, objected to the submission of Special Issue No. 7, and in a motion for new trial separately assigned the submission as error because, inter alia, a favorable answer to it would not support a verdict for the plaintiff and that issue constituted a comment on the weight of the evidence. The oil company urges that submission of the issue was harmful when the entire record is considered, and that the judgment should be reversed.

The opinion of the Supreme Court in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, describes facts that are substantially similar to the facts underlying this action. The initial paragraph of the Court’s opinion reads:

“The primary question for determina- ' tion here is whether or not the defendants in error, without negligence on their part, may be held liable in damages for the destruction or injury to property occasioned by the escape of salt water from ponds constructed and used by them in the operation of their oil wells. * * ' * ”

and thereafter on page 222 of 96 S.W.2d says:

«* h= *
“Upon both reason and authority we believe that the conclusion of the Court of Civil Appeals that negligence is a prerequisite to recovery in a case of this character is a correct one. * * * ”

The opinion exhaustively discussed the basis of liability in cases of this factual nature, and grounds its decision upon a number of decided cases, including Galveston H. & S. A. Ry. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367; Gulf C. & S. F. Ry. v. Oakes, 94 Tex. 155, 58 S.W. 999, 52 L.R.A. 293; Cosden Oil Co. v. Sides, Tex.Civ.App., 35 S.W.2d 815. It would be an endeavor of supererogation for this court to re-examine the question now that the principle has become so firmly established in the law of this State. In this case, the plaintiff, appellee here, may recover for the salt-water damage only upon a finding that negligence was the proximate cause of injury. Special issue No. 7 was immaterial and should not have been submitted.

The burden is on the appellant to show that when the entire record is considered, the submission of special issue No. 7 was harmful. Appeal and Error — Civil, 4 Tex. Jur. (2) Sec. 954, p. 616. The trespass by intrusion of salt-water and the basis of the two negligent omission issues are separately denominated by reference in other parts of the charge as the ‘occurrence in question’. The damage issue (Special Issue No. 10) focuses the jury’s attention upon the damages, if any, that resulted' from the trespass or the negligent omissions the jury found and interrogates the jury as to damage resulting from the ‘occurrence in question’. However, the language of the issue confines the damage the jury might assess to the several classifications set out therein, that is, cost of rehabilitating the land, intrinsic value of trees lost, value of loss of use of the realty and diminished value of the livestock. Under the charge as limited, the jury was not permitted to assess damage arising out of the trespass that was not allowable also as a result of 'the negligence found; thus the damage figure was not enhanced by the immaterial trespass issue. There is no grounds for supposing the damage issue would have been answered differently had the jury answered either or all the issues in the defendant’s favor. Aside from possible harm from undue emphasis of the factor that the defendant violated the plaintiff’s rights by allowing saltwater to flow upon the plaintiff’s land, the trespass issue in the charge could not have harmed the defendant. But when the record as a whole is considered, it does not satisfactorily appear that submission of the immaterial trespass issue influenced the jury’s answers or probably caused the rendition of an improper judgment. Rule 434, Vernon’s Ann.Tex.Rules of Civil Procedure.

The appellant oil company has also briefed points of error complaining of the trial judge’s instructions authorizing the jury to, consider the diminished value of livestock and the intrinsic value ■of shade trees, in assessing the plaintiff’s ¡damage. At the time of the break in the pit the plaintiff had, a milch cow, two calves, one yearling heifer, and twenty head of goats. Thereafter they were sold. The milch, cow fell off in' milk production to such extent, the plaintiff testified, that he ■did not want to, but did sell the cow for $100.00; though before the damage to the cow occurred he wquld not have sold for $250.00. No proof was .offered as to the jnarket value of the livestock, individually or collectively, either before or after the occurrence of damage. Testimony was offered from which the jury might have concluded that damage to the plaintiff’s land resulted in depreciation of the livestock, but in the absence of the market value of the livestock before and after the damage to it occurred, there was no evidence by which the, jury might properly assess damages. Damage by way of diminution in value- of livestock is governed by the general principles of damages. Humble Pipe Line Company v. Day, Tex.Civ.App., 172 S.W.2d 356, writ ref.; Chicago R.I. & G. Ry. v. Clark, Tex.Civ.App., 166 S.W. 129; Texarkana & Ft. S. Ry. v. Wilson, Tex.Civ.App., 204 S.W. 491; Northern Texas Traction Co. v. Stone, Tex.Civ.App., 230 S.W. 754; “Damages”, 17 Tex.Juris.2d p. 162, Sec. 90, and authorities there cited; 49 A.L.R.2d 295, Sec. 21. The appellant’s point of error must, be sustained.

Relevant to the shade trees, no evidence was offered as to the value of the damaged premises before and after the salt water damage was incurred. It was shown several shade trees and some other timber was damaged. Under thé present pleadings, as a prerequisite to the recovery of the intrinsic value of the shade trees, proof should be offered to show that market value of the land was not changed by their destruction. Smith v. Dye, Tex.Civ.App., 294 S.W.2d 452 at 464-465, no writ; Lucas v. Morrison, Tex.Civ.App., 286 S.W.2d 190, at 191, no writ. As a general rule the measure of damages recoverable is the difference between the fair market value immediately before the damage is inflicted and the fair market value immediately afterwards. When for reasons, properly known or made known to the court by pleading or proof, the general rule formula will not afford actual compensation, then a different measure of damages may be used that permits fair and just recovery. The burden is on the plaintiff to sustain the use of an alternate formula, in this instance by showing that destruction of the trees did not have a significant effect upon the market value of the land before offering proof supporting another measure. The appellant’s point of error will be. sustained. See Damages, 17 Tex. Jur. (2), p. 154, Sec. 81 and 82.

■ Instructions to the jury permitting it, in the absence of proof of damage, to assess damages for the diminished value of the livestock and the intrinsic value of shade trees was improper, and such allowance as the jury made therefor can not be segregated from the total damage assessed. Since other categories of damage set out in the issue appear to be supported by some evidence, in the interest of justice, the case will be reversed and remanded for new trial.

On the supposition that another trial will follow, an observation is in order, that unless the pleadings and proof are materially different, no issue submitting or concerned with exemplary damage should be given.

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

      . “Special Issue No. 1. Do you find from a preponderance of tlie evidence that the defendant, The Moran Corporation, failed to provide sufficient storage facilities for the salt .water and/or brine produced from the said oil well on the occasion in question ?
      “Answer “We do’ or ‘We do not’.
      “ANSWER: We do.

        “Special Issue No. 4. Do you find from a preponderance of the evidence that at the time and on the occasion in question, the defendant, The Moran Corporation, failed to provide a dike around the salt water pit at Krohn #1 well of sufficient strength to contain or hold the salt water and/or brine deposited therein?
      “Answer We do’, or We do not’.
      “ANSWER: We do.

        “Special Issue No. 7. Do you find from a preponderance of the evidence that defendant, The Moran Corporation, did, on the occasion in question, commit • a trespass upon the premises of Plaintiff?
      “In connection with the foregoing Special Issue, you are instructed that every unauthorized entry is a trespass, regardless of .the degree of force used. It is immaterial that the entry was made in the course of defendant’s operations on adjoining lands.
      “You are further instructed that to constitute trespass, entry upon another’s lands need not be in person, hut may he ■ made by causing or permitting a thing to cross the boundary of premises.
      “Answer We do’ or We do not’.
      “ANSWER: We do
      “Special Issue No. 10. What sum of money, if any, do you find from a preponderance of the evidence, would fairly and reasonably compensate plaintiff for the damages, if any you have so found, sustained by plaintiff as a result of the occurrence in question?
      “In answering the foregoing question, you will take into consideration the following elements and no others:
      “(1) The amount necessary to repair the injuries, if any, and place the land in the condition it was in immediately preceding the injury, if any;
      “(2) The intrinsic value, if any, of the trees lost, if any;
      “(3) The value of the use of the realty during the period of its loss, if any;
      “(4) The diminished value, if any, of the livestock of plaintiff as a result • of the occurrence in question.
      “Answer in dollars and cents.
      “ANSWER: $1600.00.”

      . Shepard’s Southwestern Reporter Citations lists more than twenty-five cases that have relied upon and reaffirmed the disposition made of the question in the Turner v. Big Lake Oil Company case. The latest cases, beginning in 1958 are Klostermann v. Houston Geophysical Company, Tex.Civ.App., 315 S.W.2d 664, writ refused; Humble Pipeline Co. v. W. C. Anderson, Tex.Civ.App., 339 S.W.2d 259, n. r. e.; Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863; Burbridge v. Rich Properties, Inc., Tex.Civ.App., 365 S.W.2d 657, no writ; Scurlock Oil Company v. Roberts, Tex.Civ.App., 370 S.W.2d 755, no writ.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Elizabeth Franzheim REESE, Appellant, v. Kenneth FRANZHEIM, II, et al., Executors, Appellees.
    No. 14443.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Aug. 6, 1964.
    Sidney Wright, Houston, for appellant.
    Vinson, Elkins, .Weems & Searls, M.: C. Chiles, F. Russell Kendall and Jarrel D. McDaniel, Houston, for appellees.
    Waggoner Carr, Atty. Gen., J. S. Brace-well and C. L. Snow, Jr., Asst. Attys. Gen., Austin, for interverjor State.
   COLEMAN, Justice.

In this case the probate of a will is contested on the ground that the attesting witnesses were not specifically informed by the testatrix, or anyone else in her presence, that the document which they had • signed was a will. There is no suspicion of fraud or undue influence and no suggestion of lack of testamentary capacity.

The will was prepared at the direction of the testatrix by an experienced lawyer. She was in good mental and physical health, and had not reached. an advanced age. Two men of mature age, architects employed by testatrix’ husband, were requested to witness the signature of testatrix by her husband. This was done in her. presence and hearing. She signed the will in the presence of the witnesses and they signed in her presence immediately thereafter. Neither of the witnesses could. testify that they were specifically asked to witness a “will”, although one of them testified that he felt sure that the word “will” .was used. Both testified that they could not remember the exact language used in the conversatión preceding and following the signing' of the will. Neither would testify that they, were not informed specifically that the instrument was a will. Both 'testified that they knew it was a will and that they saw the words “Will and Testament” in the attestation clause.

The attestation clause in the will provides as follows:

“The above instrument was here now published as her Last Will and Testament and signed and subscribed by BESSIE FRANZHEIM, the Testatrix, in our presence, and we, at her request, in her presence, and in the presence of each other, sign and subscribe our names hereto as attesting witnesses.”

There being no suspicious circumstances attending the execution of the will, the signatures of the testatrix and the attesting witnesses having been proven without controversy, a presumption of law arises that the will has been properly executed. Seydler v. Baumgarten, Tex.Civ.App., 294 S.W.2d 467, ref., n. r. e.

Since both of the attesting witnesses testified that they did not remember whether the document was published to them as a will, the attestation clause constitutes evidence that due publication was made. The trial court did not err in admitting it into evidence. Seydler v. Baumgarten, supra.

There is no evidence in this record to directly contradict any of the recitations of the attestation clause. Therefore, the proper execution of this will was established as a matter of law. Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571; Massey v. Allen, Tex.Com.App., 248 S.W. 1067.

Since there was no question for the jury to decide concerning the proper execution of this will, error, if any, in the wording of the issue submitted to the jury is immaterial and did not cause the rendition of an improper judgment in this case.

To be specific the evidence in this record establishes that the will in question was signed and subscribed by the testatrix in the presence of the witnesses and that the witnesses, at the request of the testatrix, signed and subscribed their names thereto in her- presence and in the presence of each other. While an inference might have been drawn from part of their testimony that no one told the witnesses that the instrument was a will, such inferences amount to no more than a scintilla of evidence in view of the direct testimony of both of the witnesses that they did not remember whether or not the word “will” was mentioned.

We think it unnecessary to determine whether publication is necessary under the Probate Code of Texas, or whether the evidence, aside from the effect of the attestation clause, is sufficient to raise an issue for the jury as to publication.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    A. J. TUTTLE and wife, Alie Bob Tuttle, Appellants, v. The STATE of Texas et al., Appellees.
    No. 7560.
    Court of Civil Appeals of Texas. Texarkana.
    July 14, 1964.
    Rehearing Denied Aug. 4, 1964.

      L. F. Burke, Longview, for appellants.
    Earl Roberts, Sr., Earl Roberts, Jr., Ralph Prince, George McCrea, Longview, for appellees.
   FANNING, Justice.

Three condemnation proceedings, instituted by the State of Texas and County of Gregg against A. J. Tuttle and wife, Alie Bob Tuttle, for the purpose of acquiring road right-of-way 'and drainage easements through their farm in Gregg County, were consolidated. • A 12.410 acre -strip and a 8.697 acre strip' were taken for road right of way and a 2.247 acre strip was taken for a drainage easement in connection with the construction of said road, to-wit, Staté Highway Loop No. 281, all of said tracts aggregating 23.354 acres of land. Trial was in the County Court of Gregg County with the aid of a jury. The special issues submitted and the answers of the jury thereto-were as follows:

'“'SPECIAL ISSUE 'NO. 1: ' •
“From a preponderance of the evidence, what do you find was .the market -value of the strips’ of- land belonging to A. J. Tuttle and wife, - condemned by the State and County for highway purposes at the time it was condemned, considered as several lands?
“ANSWER IN DOLLARS AND ' CENTS:
“ANSWER: $14,280.00
"SPECIAL ISSUE NO. 2:
“From a preponderance of the evidence, what do you find was the market value of Defendants’ tracts of land, exclusive of the strips of land condemned immediately before the strips were taken for highway purposes?
“ANSWER IN DOLLARS AND ' CENTS:
“ANSWER: $151,950.83.
"SPECIAL ISSUE NO. 3:
“Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally, and not peculiar to them, and connected with their ownership, use and enjoyment of the particular tracts of land across which the strips of land have been condemned, and taking into consideration the uses to which the condemned strips are to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ tracts of land immediately after the taking of the strips condemned for highway purposes?
“ANSWER IN DOLLARS AND CENTS:
“ANSWER: $177,815.00”

Judgment was rendered on said verdict awarding the sum of $14,280.00 (less $13,-640.20 deposited in the registry of the court and theretofore withdrawn by the Tuttles) to the Tuttles for the land taken. No damages were awarded to the Tuttles for alleged damages to their remaining lands. The Tuttles have appealed. . .

Appellants question the necessity of and the sufficiency of the showing of authority for the condemnation of their property by the condemnors. There was introduced in evidence a resolution of the Commissioner’s Court of Gregg County, Texas, authorizing an entry into an agreement with the State of Texas in which the County of Gregg and the State of Texas would acquire right-of-way for the construction of the proposed Loop No. 281, and attached to the resolution is a copy of the agreement with the Texas State Highway Commission, and other documentary evidence was introduced in evidence. All the documentary evidence with respect to the requisite authority to maintain this condemnation action by the State of Texas and County of Gregg as well as testimony bearing on the authority of the condemning authorities have been considered and it is deemed that there was a sufficient and satisfactory showing made in the record that the condemnors had the authority to condemn the property •of the appellants, and appellants’ contentions to the contrary are overruled.

As for the necessity for the construction of State Highway Loop No. 281 through the property of appellants it is •clear from sufficient evidence in the record that such a decision was made by the con■demning authorities. No fraud or abuse of •discretion on the part of the condemning authorities in determining the necessity for •condemnation is shown in the record. Appellants’ contentions questioning the necessity of the condemnation of their property for the purposes sought by appellees are •overruled. Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053 (1940) ; Tarrant County v. Shannon, 129 Tex. 264, 104 S.W.2d 4 (1937) ; Bobbitt v. Gordon, Tex.Civ.App., 108 S.W.2d 234, no writ, (1937).

Appellants contend to the effect that there is no evidence to support the jury’s answers to special issues Nos. 2 and 3. We also gather from appellants’ brief that they contend to the effect that the answers of the jury to special issues Nos. 2 and 3, amounting to a finding of “no damages” to appellants’ remaining lands are so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

Three tracts of appellants’ lands were condemned. One tract of 2.247 acres was to be used by the State as a drainage easement, and another tract of 8.697 acres was to be used by the State in the actual highway right-of-way, and these two tracts were located west of McCann Road. The other tract of 12.410 acres, located east of Mc-Cann Road, was to be used as a part of the highway right-of-way.

Appellees presented two expert witnesses and appellants presented one expert witness. Other witnesses testified and numerous pictures, maps and exhibits were placed in evidence. The record in this case is lengthy and voluminous. However, as usual in cases of this character, the experts differed on the questions of values. Likewise the testimony of appellants’ other witnesses tended to show damages to the remaining lands, such as showing of lack of unity of use, difficulty of access to the severed lands, siltation of a pool from dirt and dust occasioned by the construction, various cuts and fills as shown by maps and pictures, and other matters. Appellees’ witnesses attempted to counter the damages claimed, etc.

Walter and Brawner were the expert witnesses for appellees; Comer was the expert witness for appellants. All three duly qualified as experts.

Appellants’ land was located about three miles from the City of Longview, Texas, and was being used as farm and pasture land by appellants. Appellees’ expert witness Brawner' testified to the effect that the highest and best use of the land in question, after the taking, was not as farm and pasture land,, but as potential subdivision land. We quote from Mr. Brawner’s testimony in this respect in part as follows:

“RE-DIRECT EXAMINATION
“By Mr. Roberts:
“Q. Mr. Brawner, after the taking, you spoke of the highest and the best I believe use of the whole tract, now what do you mean by that from a real estate man’s standpoint?
“A. Well in appraising property we always, after we examine the property and get into all details of it, before arriving at a value, we try to appraise it for its highest and best use and in so doing the upper limits are involved, in this case our highest and best use for that property was property we considered as potential subdivision land and prices were given according to that and that’s the reason that no separate renumer-ation was made for fences and this, that and the other because the price we appraised it for, if they want fences they can sure put up fences because at $700 an acre, that isn’t pasture land.
“Q. Is that farm land * * *
“A. I sold 300 acres out Judson road for $60 an acre that was good pasture land.
“Q. Could this be appraised at its highest and best use as pasture land or farm land?
“A. No, sir, it could not, it if did * * *
******
“RE-CROSS EXAMINATION
“By Mr. Burke:
“Q. Mr. Brawner, you have stated you took into consideration part of his land for potential subdivision?
“A. Correct.
“Q. How many acres did you take into consideration was adaptable or could be adapted to subdivision property?
“A. I think it’s all potential subdivision land.
“Q. You think all of it is potential subdivision land?
“A. Yes, sir.
“Q. Alright now what is the going price per acre out there that people have been paying for subdivision property, isn’t it 12 or $1300 an acre?
“A. I haven’t known of any that sold for that at the time we made our appraisals, no sir.
“Q. At the time * * *
“A. The amount that any investor or builder will pay for a' piece of subdivision land depends on how much cost they’ve got to go to develop it.
“Q. What we’re talking about here is the comparable values of property in this area, now the question is, isn’t it a fact and you know it’s a fact that they’ve been paying 12 to $1500 per acre out there in that area for land to be converted into subdivision ?
“A. I gave two that was 600 and 800 an acre.
“Q. Don’t you know that some of it out there sold for between 12 and $1500 an acre in the same area?
“A. The only tract I know of that has sold, has been an after sale — only one I know of out there that has got up that high has been an after sale after the highway was established that it was coming-through that had been on the market that I know, of for three years and hadn’t sold for lots lesser value and that was the Vierling tract.
"Q. What is the date of it please sir?
“A. I don’t believe I have that.
* ‘ * * * * *
■“Q. December 12, 1962, if you want the date on it.
■“A. December 12th..
“Q. How much an acre did it bring.
“A. I believe that was somewhere in the vicinity of $1300, I’d consider that an after sale due to the highway going through there.
“Q. 1367 would be about right, wouldn’t it?
“A. ' Yes sir.
“MR. BURKE: I believe that’s all.’’

The three experts testified in detail as to their, opinions of the value of the remaining tracts immediately before and after the taking, some testifying as to what they considered were comparable sales, and some testifying as to what they considered the highest and best uses, etc., of the remaining lands. We will not attempt here to break ■down into details all the specific values given, but will briefly summarize as to the values testified to by the three experts.

Appellants’ expert witness Comer’s opinions on values were as follows:

1. Total value of strips of land taken .$ 20,351.55
2. Total value of remaining land before taking, .... $242,204.14
3. Total value of remaining lands after taking, .... $193,534.18

The net effect of Comer’s opinions of values is that the strips taken were of the value of $20,351.55, and that the remaining lands were damaged or suffered a decrease in value of $48,649.96, -The total. of. such values was $69,001.51.

Appellees’ expert witness Walter’s opinion's on values were as follows:

d. Total value of strips of . land taken .$ 11,361.00
2. Total value of remaining lands before taking, .... $135,789.00
3. Total value of remaining . - lands after taking,. $165,107.00

The net effect of Walter’s opinions of values is that the strips taken were of the value of $11,361.00, and that the value of the remaining lánds was greater after the taking than before the taking. Consequently under his values the remaining lands suffered'no damages.

. Appellees’ e,xpert witness Brawner’s .opinions on.values were as follows:

1. Total value of strips of land taken .$ 11,985.00
2. Total value of remaining lands before taking .... $156,744.00
3. Total value of remaining' lands after taking.$177,815.00

The. net effect of Brawner’s opinions of values is that the strips taken were of the value of $11,985.00, and that the value of the remaining lands was greater after the taking than before the taking. Consequently under his values the remaining lands suffered no damages.

The finding of the jury as above shown on the value of the strips taken ($14,280.00) was more than testified to by appellees’ expert witnesses and less than the value testified to by appellants’ expert witness. The jury found the value of the remaining lands before the taking to be $151,950.00, which was less than the value of appellants’ expert Comer and less than the value of ap-pellees’ expert Brawner, and was more than the value of appellees’ expert Walter. The jury found the value of the remaining lands after the taking to be $177,815.00, which was the value testified to by appellees’ expert witness Brawner, and which amount was more than the value testified to by ap-pellees’ expert witness Walter. This was less than the value testified to by appellants’ expert witness Comer. (However, under Comer’s testimony, the value of the remaining' lands before the taking was $242,-204.14, and the value of the remaining lands after the taking was $193,554.18, resulting in the remaining lands being damaged or suffering a decrease-in value of $48,649.96, -according to the opinion of Comer). The ,end result of the jury’s answers to special issues Nos. 2 and 3 is that appellants’ remaining lands were not damaged.

Appellants’ contentions to the effect that there is no evidence to support the jury findings to special issues Nos. 2 and 3 are overruled. The jury’s answers to special issues 2 and 3 are within the limits of testimony adduced. It has been held that in a. condemnation case of this kind the jury, when considering the value of the condemnees’ remaining property immediately after condemnation is restricted only by the lowest figure testified to, and a jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry, and jurors are not compelled to credit all of the testimony of any witness or to reject it all; also opinion evidence is not conclusive, a jury may consider and accept or reject such opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. See Roberts v. State, Tex.Civ.App., 350 S.W.2d 388, no writ (1961) and the numerous authorities cited therein.

Viewing the evidence most favorably against appellants on the contentions of “no evidence”, as we are required to do, we are of the opinion that we Cannot say that there was no evidence to support the jury’s findings to special issues' Nos. 2 and 3, and appellants’’ contentions to that effect are overruled.

Rule 328, Texas Rules of Civil Procedure, provides that new trials may be granted when the damages are manifestly too small or too large. In condemnation, as in other cases, the rules governing the authority of an appellate court to set aside a verdict because of inadequacy are the same as to those applicable to excessive verdicts. Thompson v. State, Tex.Civ.App., 319 S.W.2d 368, no writ (1958); Schooler v. State, Tex.Civ.App., 175 S.W.2d 664, wr. ref., w. o. m. (1943). And an appellate court will reverse and remand a condemnation case where the damages awarded are inadequate or without support in the evidence or against the great weight and preponderance of the evidence. See Schooler v. State, supra (175 S.W.2d 664) and authorities cited therein. Also see In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

The jury heard the extensive evidence adduced and by their answers to issues Nos. 2 and 3 found in effect that appellants’ remaining lands had not decreased in value but had increased in value and finding in effect that plaintiffs’ remaining lands-were not damaged. After carefully examining the entire record in this cause in the light of the rules enunciated in the case of In re King’s Estate, supra, it is our best judgment that the jury’s answers to special issues Nos. 2 and 3, and the failure of the jury thereby to find any- damages to-appellants’ remaining lands, were within the reasonable exercise of the function of the jury, and that such findings were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants” contentions to the contrary are overruled.

Appellants also contend to the effect that the trial coprt erred in permitting any witness to testify that the defendants were benefited by the construction of the highway across their land since the State failed to plead that defendants would be particularly benefited. Appellants also contend to the effect that there was a failure on the part of appellees to prove that any special benefits had accrued to appellants by the highway construction through their farm and that such benefits, if any, were common to the community in general and not special to appellants. Appellees answer the above referred to contentions of appellants, as well as other related contentions, and we quote in part from appellees’ brief as shown below.

It is well settled that the measure of damages to the residue of the property is the market value thereof immediately before the taking, less the market value immediately after the taking. The correct method of adducing evidence as to market value is by witnesses, after suitable qualification, giving their opinion as to the market value of the residue before and after taking, rather than to undertake to testify to specific items of injury or damages. County of Nueces v. Salley, Tex.Civ.App., 348 S.W.2d 397, wr. ref., n. r. e., (1961); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). We quote in part from the opinion in the Carpenter case, at p. 201, as follows: -

“For various reasons, we have concluded that a trial court in the admission and exclusion of evidence cannot eliminate all evidence of 'community’ benefits and injuries as touching questions of value and depreciation in value. As indicated above, the correct method of adducing evidence as to market value is by witnesses, after suitable qualification, giving their opinion as to the market value of the residue before and after the taking, rather than undertaking to specify the specific items of injury and damage. See Gainesville, H. & W. Railway Company v. Hall, 78 Tex. 169, 175, 176, 14 S.W. 259, 9 L.R.A. 298, 22 Am.St.Rep. 42. If the witness answers that there has been a depreciation or enhancement in the market value after the taking, in either event it is proper to question him as to the basis of his opinion and the matters he has taken into consideration in things he has considered in arriving at his opinion of market value were ‘community’ benefits or injuries, but that there were other things of a legitimate nature which influenced his opinion, this should not invalidate his evidence altogether. For this reason, among others, it occurs to us that .the matter cannot be controlled altogether in the admission and exclusion of evidence. It follows, therefore, that without some limitation or instruction in the charge, a finding of 'market value of the land after the taking would necessarily include value contributed thereto by community benefits as well as special benefits. It is of course settled that enhancement in market value of the residue of the land by reason of ‘special benefits’ is a legitimate offset to damages thereto, but not to the value of the part actually taken. The statute has not defined ‘special benefits.’ It has only undertaken to define community benefits and negatively authorizes all other benefits to be taken into account. A finding as to market value would include such benefits, and should do so. It should not include, however, value because of community benefits, and for this reason we have concluded that provision should be made in the charge for excluding such benefits. We think this can be more appropriately done by proper special issues rather .than by an instruction of the court.”

In Rayburn, Texas Law of Condemnation, Sec. 74(1), p. 272, it is stated to the effect that if a condemnor desires to avail himself of the plea of special benefits it must be specifically plead and that in addition to pleading proof is required to raise the issue. However, in the case at bar no objection was made by appellants to any evidence on the ground that appellees had not filed any pleading with respect to special benefits. While appellees’ evidence with respect to special benefits is largely general and circumstantial it is our best judgment that we are unable to say from the record.- ip this case that there is ‘nq .evidence’ , of special; benefits accruing, to appellants, by reason of .the construction of. the road in question as it appears from the record that appellants, among other things, will have considerably more road frontage than, they had before, and that such greater road frontage, considering that the land is only three miles from the City of Longview and other circumstances in the case, would make said property more valuable for potential subdivision purposes, as well as perhaps for other purposes. In this connection see City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951), wherein at pages 179 and 180 it was stated in part as follows:

“Another point presented to the Court of Civil Appeals assigned as error' the trial court’s ruling upon the admissibility of certain evidence. A witness for the City gave his opinion that the market value of the remainder of. Priolo’s tract immediately after the taking of the strip by the City was increased by the improvements. The question propounded to the witness called upon him to exclude the increase in value and decrease in value by reason of benefits or injuries received in common with the community generally and not peculiar to Priolo and connected with his use and enjoyment of his tract of land. On cross-examination the witness stated that he could not tell of any benefits that the Priolo property received that other property similarly situated would not receive. Motion was then made that the witness’ testimony be stricken on the ground that he was testifying to community benefits only. The court did not err in overruling the motion to strike. A community may receive general benefits from the constructing or improving of a highway, but the owner of property adjacent to the highway may suffer an injury or receive a benefit different from that of the community as a whole. * * * In City of Dallas v. Firestone Tire and Rubber Company, Tex.Civ.App., 66 S.W.2d 729, writ refused, it was held that the owner received special benefits because of the widening arid straightening of the street abutting its business. That was not a condemnation suit, but did involve the question of special benefits. The opinion pointed out that just because other businesses' along the street in the same category got the same benefit would not prevent the benefits derived by the appellee in the case from being special. The community generally did not receive the same benefits that the appellee received in that case. Priolo’s property was at a point where Dolphin Road made a jog, and by taking the strip from the front of his lot the City was able practically to eliminate the jog and provide for a free flow of traffic by his place of business on a wider and better type of pavement. It cannot be held as a matter of law that a special benefit was not thereby conferred upon him.”

In City of Tyler v. Ginn, Tex.Civ.App., 225 S.W.2d 997 (1949), wr. dis., w. o. j., 148 Tex. 604, 227 S.W.2d 1022 (1950), it-was stated in the opinion of the Court of Civil Appeals, 225 S.W.2d at pages 998 and 999, in part as follows:

“In arriving at the value of the condemned property and damages thereto consideration may also be given to the purposes for which the property is being used at the time of its condemnation. Texas Power & Light Co. v. Snell et al., 15 S.W.2d 180, by this court. It was held in Cincinnati Union Terminal Co. v. Banning, 27 Ohio N.P., N.S., 548, that all uses of the property condemned may be shown including its highest use. Under the above authorities it is our opinion that the proffered testimony was admissible as bearing upon the damage to the remaining part of appellees’ homestead after the strip across the front had been condemned. There seems to be no question but that appellees are entitled to the highest value for which the property is adaptable. This rule we think applies not only to the property taken but also to the damage sustained to the remainder of appellees’ homestead. But if appellant has evidence showing that the part of appellees’ home remaining with the improvements, after the condemnation of the strip in front of it, it is worth more, taking into consideration any and all uses to which it is reasonably adapted, after the improvement of Highway 31 than before the improvement was made, then the city would have a right to produce said testimony. Under such circumstances the appellees would not be damaged and, of course, would not be entitled to recover. * * * ”

It is our view that the last above referred to contentions of appellant do not present reversible error under the whole record in this cause, and the same are overruled. Rule 434, T.R.C.P.

Appellants further contend that the trial court erred in excluding evidencé of certain stated sales which appellants contend were proper comparable sales and admissible as comparisons to the property under con--demnation in this cause and that the trial court erred in excluding certain sales which occurred more than five years from the date the amount of the award was paid into court by the condemnors.

In Rayburn, Texas Law of Condemnation, Sec. 127, p. 403, it is stated in part as follows:

“It is settled law, that where testimony is presented showing that closely similar property in the immediate- vicinity of the subject land has sold on the general market, that these sales prices are admissible, as bearing upon the question of market value, if they are not too remote in point of time.
******
“It is probable that the 5 years mentioned in this section is about the extreme limit of reasonable time that might be thrown on this type of inquiry, as to a bearing on market value.”

In condemnation cases a trial court is vested with a sound judicial discretion to determine the admissibility of evidence of prior sales and the rules vary with the facts of the case. The rule is aptly stated in City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585 (1934) reversed on other grounds in 105 S.W.2d 870, Tex.Comm. App., (1937) wherein at page 591 of the opinion of the Court of Civil Appeals, it is stated in part as follows:

“The questions of the degree of similarity and nearness of time and distance necessary in cases of this kind, to render testimony of sales of other property admissible in evidence, is not predetermined by any inflexible, hard and fast general rule, but must rest largely in the discretion of the judge, and the rules Vary with the facts of the cases.”

Wé have examined the proffered evidence of the alleged comparable sales, and have reached the conclusion that this record does not show that the' trial court abused its discretion in excluding such proffered evidence. Appellants’ contentions to the contrary are overruled.

Appellants’ remaining points and contentions have been carefuly considered and none of them are deemed as presenting reversible error under the whole record in the case, and the same are respectfully overruled. Rule 434, T.R.C.P.

Finding no reversible etro'r in the record, the judgment of the 'trial -court is affirmed. ■

Affirmed.

      . “Appellants in their brief set out certain points in which they allege that Appel-lees’ witnesses testified over their objections to the enhancement of the value of the property of Appellants. They complain in Point 19 that the evidence admitted was not supported by the pleadings; no such objection was made in the trial court. In Point 21 Appellants complain that evidence was introduced of enhancement of value generally to the community; no objection was made on this grounds in the trial court. In Point 24 Appellants complain that Appellees have wholly failed to plead and prove special and peculiar benefits resulting to the land of A. J. Tuttle and yet do not complain of any error on the part of the trial court. In point 28 Appellants complain that Appellees having failed to plead that Appellants would be particularly benefited, the Sourt erred in permitting the witness to testify that Appellants benefited by the construction of the highway across their land; this point does not indicate any objection by Appellants nor any adverse ruling by the Courts concerning this matter.
      “State v. Carpenter [126 Tex. 604], 89 S.W.2d 194 (Comm.App.), is the landmark Texas case concerning condemnation. It has been followed by countless cases, both Supreme Court and Court of Civil Appeals, and the issues which it frames as suggested special issues in a condemnation case has been universally used in the trial of condemnation cases.
      *******
      “It will be noted that the question asked each of the expert witnesses for Appellees was phrased in the wording of the Carpenter case and each of the questions concerning the market value of the remainder immediately after the taking asked the witness, to exclude the increase or decrease to the property which was shared by the landowner with the community in general. In reply to this question, each of the witnesses stated their opinion as. to the market value, and it' can only be presumed that the witnesses obeyed the instructions of counsel for Appellees in his question and excluded such increase or decrease. * * *»


text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Mrs. Wanda S. ADAMS et al., Appellees.
    No. 7539.
    Court of Civil Appeals of Texas. Texarkana.
    March 17, 1964.
    Rehearing Denied July 21, 1964.

      Jerry V. Walker, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, John Camp, Bell, Camp, Gwin & Furse, Bay City, for appellant.
    Raymond L. McDermott, Houston, Moise Simon, Bay City, John H. Jenkins, Mabel ■Grey Howell, Houston, for appellees. '
   FANNING, Justice.

The opinion of February 11, 1964 is withdrawn and the following opinion is rendered.

A workmen’s compensation case. The jury found that the deceased employee was in the' course of his employment at the time he received fatal injuries. Judgment was •entered for appellees, the widow and minor children, and appellant insurer has appealed.

Appellant presents three points on appeal contending that there was no evidence and insufficient evidence that the deceased employee was in the course of his employment when he received fatal injuries and that such finding of the jury was also against the great weight and preponderance of the evidence.

For a comprehensive discussion of the law applicable to the determination of such character of points see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence’ ‘Points of Error’ ”, 38 Tex. Law Rev., No. 4, p. 361.

Roland Cole Adams was a working foreman for his employer, Chapin & Pruitt, Contractors, on Dec. 8, 1961, when he met his death in an automobile accident in Mata-gorda County, Texas. He had worked for his employer about seven years prior to his death. Chapin & Pruitt, Contractors, were telephone contractors and did repair work on contract basis and built new lines for telephone companies. Mr. Adams’ permanent home was in Rosharon, Brazoria County, Texas. His work was of a transient nature throughout generally the South Texas area, and his wife and children would go with him from place to place. On Sept. 10, 1961, and prior to the devastating storm and hurricane known as “Hurricane Carla”, Adams and his crew of workers were transferred to the Port Lavaca area where the job of his employer required Adams and his crew to work in a swampy area doing repair and maintenance work for a telephone company. Upon receiving notice of the storm warnings Adams and his crew left and later returned after the storm.

. Adams and his crew were furnished by the employer with a 1948 Bell Ford utility truck which had been purchased secondhand from Bell Telephone Company which truck had a winch and an A-line, with a trailer, used for carrying and picking up telephone poles. This truck was kept at the job site except when it was needed to be brought to town for fuel or was needed to carry heavy telephone poles and cross-arms to the job site, because the crew had no other vehicle for this purpose. This truck was not in good condition and was, “hard to hold on the road.” Ordinarily Adams and his crew-had another pickup truck assigned to them by the employer, however, in August-, 1961, in moving the crew’s operations from Raymondville to Port Lavaca, this 1956 Ford pickup truck, which was then being driven by Mr. Pruitt, was wrecked.

Sometime later, during Hurricane Carla or two or three days after the storm, a second-hand 1952 or 1954 Chevrolet panel (telephone type) truck was purchased by the employer for the use of Adams and his crew. There was testimony that this truck was “wore out”, that the transmission on it was frozen about one week prior to Mr. Adams’ death and to the effect that the truck then was unusable.

There was testimony to the effect that after the old Chevrolet truck of the employer broke down and could not be used because of the frozen transmission, that Mr. Adams, with the knowledge, direction, consent and acquiescence of Mr. Pruitt, one of the partners, began using his own personal automobile for company business and for the particular purpose of transporting the crew. There was also testimony to the effect that a battery and fuel pump, as well as gasoline, was purchased for Adams’ personal car on the Chapin & Pruitt Humble credit card, which automobile of Adams was being used by Adams on company business in lieu of the disabled Chevrolet truck for the purpose of transporting the work crew of his employer.

One of the specific duties required by the employer of its employee foreman Adams was for him to transport the work crew. The employer had previously furnished Mr. Adams a vehicle for this purpose and Mr. Adams had been using the old Chevrolet panel truck of his employer for this purpose until it became disabled. Adams’ employer had a credit card with Humble and for several years Mr. Adams had been furnished by his employer with a Chapin & Pruitt credit card, and such a card was found among Adams’ effects at the time of his death. There was also testimony to the effect that Mr. Adams also received $50.00 in cash from Mr. Pruitt as expense money to keep the trucks in .operation, and when this money was used up Mr. Adams would turn in the cash tickets and get another $50.00 from Mr. Pruitt.

■ On the day prior to Adams’ death he and his crew were working near Green Lake in the swamps and near the town of Tivoli. They were getting the poles across the water any way they could and it was wet and muddy where they were working.

Dechert’s Humble station at Port Lavaca was established as the meeting place for the crew to meet to be carried back and forth from Port Lavaca to the job site.

Mr. Pruitt admitted that it was Mr. Adams’ duty to take the crew to and from work in some sort of transportation each day. He also testified to the effect that Mr. Adams went backwards and forwards in the Chevrolet truck from Port Lavaca to Blessing, Texas, where Adams and his family had temporary living quarters, and he admitted that he knew that Mr: Adams was using the Chevrolet company truck to go to Blessing. There was testimony to the effect that Mr. Adams took the company pickup and company panel truck the biggest part of the time while staying in temporary quarters in connection with the work of his employer, so his wife could have their personal car. Mr. Pruitt admitted that he never told Mr. Adams he could not take the company panel truck furnished to him to any of his temporary residences.

Mrs. Adams, widow of the deceased, also testified to the effect, among other things, that after the company’s truck became unusable, that Mr. Pruitt told her husband to use his personal car (a ’56 Chevrolet) to transport the crew, and that Mr. Pruitt said that the expenses for the operation of Mr. Adams’ personal car would be paid for by the company.

Thus it seems clear from evidence of probative force in the record, that prior to and at the time of the death of Mr. Adams, that there was no usable company truck of Chapin & Pruitt to transport Adams and his crew on the necessary company business, and that by the direction of Mr. Pruitt, the personal car of Mr.' Adams was being used in lieii of or in substitution for a company " car, and that various expenses for operation of Mr. Adams’ car were being paid for and were paid for by Chapin & Pruitt. There was testimony to the effect that the company panel truck’s transmission was frozen up where it could not be moved or driven about a week prior to Mr. Adams’ death, and that during this week Mr. Adams used his personal car for the purpose of transporting himself and his crew to go out working from Port Lavaca towards Sea-drift.

On the evening prior to Mr. Adams’ death, Mr. Pruitt met with him in Port Lavaca and delivered pay checks to him for himself and crew and they discussed company business for some time, and such pay checks were among Mr. Adams’ effects when he was killed. After leaving Mr. Pruitt, Mr. Adams proceeded in his automobile and was thereafter killed on the highway between Port Lavaca and Blessing that night. There was testimony of probative force from which it could be inferred that Mr. Adams’ death occurred a short time after he left Mr. Pruitt.

If Mr. Adams had not have been killed and had lived it would have been his duty , early- the next morning to have proceeded in his personal automobile from his temporary quarters at Blessing to Dechert’s filling station in Port Lavaca and there pick up his crew and transport them and himself in his personal automobile to the place where his crew was performing work for his employer. Because of his death and consequent failure to appear at Dechert’s filling station in Port Lavaca the next morning the crew did not go to work because there was no transportation to get to and from their job as the employer had agreed to furnish.

There was also testimony to the effect that by reason of Hurricane Carla, Mr. Adams could not find temporary living quarters in the Port Lavaca area nearer than Blessing, Texas, and that Mr. Pruitt had let Mr. Adams off from work for him to try to find living quarters closer than Blessing, but none could be found.

Appellant, among other things, contends to the effect that since Adams was killed on the highway while on return to his residence quarters at Blessing, Texas, the ap-pellees can not recover by reason of Art. 8309, Vernon’s Ann.Civ.St., Section lb. Sections 1 and lb of Art. 8309, V.A.C.S., are discussed by the Supreme Court of Texas in the recent case of Jecker v. Western Alliance Insurance Company, Tex., 369 S.W.2d 776, and we quote from the court’s opinion in said case in part in footnote 1 below.

• It is our view that there is evidence of probative force in the record to the effect that there existed a contract either expressly or impliedly for the employer to furnish Mr. Adams transportation to and from his temporary residence quarters at Blessing to the job site (and to transport his work crew to and from the job site) in a pickup truck or a panel truck furnished to him for that purpose with expenses for such transportation paid for by the employer, and further that when such company ve-hide became unusable when the transmission was frozen up, that thereafter Chap-in & Pruitt, the employer, directed and authorized Mr. Adams to use his own personal automobile for such purpose and for the purpose of also transporting the crew to and from their work. In order for Mr. Adams to fulfill his required duty of transporting his crew as well as himself to and from the job site of his employer, it was incumbent upon him to take care of and to have ready the only means of transportation available to him and authorized by his employer to attend to the' vital company business of transporting himself and his crew to and from the job in the devastated •area occasioned by the usual conditions created by Hurricane Carla. Furthermore, it is our view that there is evidence of probative force in the record that the employer in directing Adams to use his personal automobile for the purposes above related in lieu of the disabled company vehicle, agreed to pay and did pay gasoline expenses and certain other auto expense of Adams’ private automobile for such above stated purposes. It is our further conclusion that there is evidence of probative force in the record to support the view that Adams was being furnished transportation “paid for by the employer”- within the meaning of Sec. lb, Art. 8309, V.A.C.S., at the time of his death.

While we have not found any case directly or near in point with the unusual fact situation in the case at bar, it is our best judgment that there is evidence of probative force in the record to support the finding of the jury to the effect that Mr. Adams, the deceased employee, was in the course of his employment at the time he received his fatal injuries. In this connection see the following authorities: Jecker v. Western Alliance Insurance Company, supra, 369 S.W.2d 776; Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Maryland Casualty Company v. Smithson, Tex.Civ.App., 341 S.W.2d 951, wr. ref., n. r. e.; Fritzmeier v. Texas Employers Ins. Ass’n, 131 Tex. 165, 114 S.W.2d 236; Texas Employers Ins. Ass’n v. Inge et al., 146 Tex. 347, 208 S.W.2d 867; Jones v. Casualty Reciprocal Exchange, Tex.Civ.App., 250 S.W. 1073, wr. ref.

We quote from the Ragle case, supra, 40 S.W.2d 63, in part as follows:

■ “.*• * * Our Supreme Court has announced the sound and. humane .rule that the Workmen’s Compensation Act is a ‘remedial statute which should be liberally construed with á view to accomplish its purpose and • to promote justice.’
“When we keep in mind that the lease where Ragle and the men worked was at a place where no arrangements for their accommodation has been made, situated six miles from the place where they resided; that an automobile was the only practical means of getting to and from the work; that it was parked on or near the premises where the men worked; that Ragle, during the hours of his employment, undertook to crank the automobile for the purpose of furnishing the men at work a means of transportation in which to ride home and was injured — these facts bring the case clearly within the rule announced by our Supreme Court in the Behnken Case [Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402], supra, and it is therefore compensable under the provisions of the Workmen’s Compensation Act.”

We further hold that the evidence is sufficient to support the jury’s finding that the deceased employee was in the course of his employment at the time he received his fatal injuries.

After, carefully considering the entire record in this cause in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, is our further view that the jury’s finding that the deceased employee was in the course of his employment at the time he received his fatal injuries is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant’s points are overruled.

The judgment of the trial-court is affirmed. • • ■

ON MOTION FOR RE-HEARING

In addition to the authorities hereinbe-fore cited with reference to the question of "no evidence” we cite the recent decision of the Supreme Court of Texas rendered July 8, 1964, in Janak v. Texas Employers Insurance Association, Texas Supreme Court, 381 S.W.2d 176. While we have found no case near in point with the facts in the case at bar it is our best judgment that the Janak case, supra, the Jecker case, 369 S.W.2d 776, and other cases referred to in •our main opinion on the question of “no evidence”, tend to support our view that there was evidence of probative force in the record to support the finding of the jury to the effect that the deceased employee, Mr. Adams, was in the course of his employment at the time he received fatal injuries.

We adhere to all of our rulings in the ■main opinion and to our affirmance of the judgment of the trial court. Appellant’s motion for re-hearing is in all respects overruled.

      . “Inasmuch as Jecker suffered his fatal injuries while traveling on a public highway, whether he was in the course of his employment at the time is measured and limited by Secs. 1 and lb of Art. 8309, Vernon’s Ann.Civ.St. See. 1, after eliminating injuries caused under certain circumstances, provides that the term ‘injury sustained in the course of employment’ shall ‘include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.’ See. lb, added in 1957, reads:
      “ ‘Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an. injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.’ ”
      “Special Issue No. 1 inquired whether Jeeker was in the course of his employment at the time of his fatal accident. In connection with the special issue, the court gave an instruction defining ‘in the course of his employment’ in the language of Secs. 1 and lb of Art. 8309 as that language relates to the facts in the case. The jury was instructed that ‘in the course of his employment’ meant ‘originating in the work, business, trade or profession of Bay Chevrolet, Incorporated, and in the furtherance of its affairs of business.’ The instruction then continued as follows:
      “ ‘However, an employee, while travelling on the highway in an automobile, is not considered as being in the course of his employment unless the transportation is paid for by the employer or unless the employee is direeted in his employment to proceed from one place to another place;’ ”
      Finally, the instruction advised the jury that travel in furtherance. of the business of the employer could not be the basis of a claim that the death occurred in the course of employment if the travel was also in furtherance of personal or private affairs, unless the trip would have been made had there been no personal or private affairs to be furthered and unless the trip would not-have been made had there been no business of the employer to be furthered.
      “The holdings of the Court- of Civil Appeals that there is no evidence to support the jury’s finding and that such finding is contrary to the weight and preponderance of the evidence, appeals to be based upon an erroneous concept, of applicable law and an erroneous construction of the trial court’s instruction. The court, citing American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374, rested its conclusion on the general rule that an injury incurred in the use of public streets and highways in going to and returning from, the ;place of employment is not a com-pensable injury because not incurred in the course, of the employment as required by Sec. 1 of Art. 8309. There are exceptions to that general rule, also set out in Coleman, but the Court of Civil Appeals was of the opinion that the facts of this case did not bring it within any of the exceptions. It construed the exceptions as being limited to instances in which the employer furnishes transportation to the employee, or pays another to transport him, or directs him to perform a ‘special mission’ requiring travel on the streets or highways.
      “The rule and the exceptions mentioned in Coleman should be interpreted in the factual context with which the Court was dealing. In that case the question to be decided was whether a workman whose employment had terminated and who was injured while traveling on a public highway in returning to the city in which he resided was injured in the course of his employment. In deciding the question, we applied the rule or test, and the exceptions, used to determine whether a workman who has completed his work for the day at his place of employment and is injured while traveling on the streets or highways in returning to his place of residence is injured in the course of his employment. The general rule is that he is not. The rationale of the rule is that injury incurred in such travel does not arise out of the employment. Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350.
      “The general rule is, in reality, even broader than we had occasion to state it in Coleman. It is that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on tile public streets or highways pursuant to express or implied requirements of his employment contract. Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238; Jones v. Texas Indemnity Co., Tex.Civ.App., 223 S.W.2d 286, writ refused; Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791. As a matter of fact, we recognized this exception in Coleman by our quotation from Associated Indemnity Co. [Corp.] v. Bush, 5th Cir., 201 F.2d 843. The rationale of it is that since the workman’s employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Smith v. Texas Employers’ Ins. Ass’n, supra. The exception was well established before the adoption of Sec. lb of Art. 8309 by the Legislature, and it must be assumed that the section was enacted with full knowledge of it.
      “Was the exception abolished by Sec. lb of Art. 8309? We think not. We have recently recognized in Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, 353, that the Legislature intended by the enactment of Sec. lb ‘to circumscribe the probative effect that might be given to the means of trans-poration of the purpose of the journey rather than to enlarge the definition [of “injury sustained in the course of .employment”] found in Section 1.’ But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensa-tioh if accidentally injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workman’s Compensation Act.
      “It is to be noted that one of the exceptions to the provision in See. lb that ‘transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment’ is when ‘the employee is directed in his employment to proceed from one place to another.’ We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment. Having thus construed the statute, we give the same meaning to that part of the trial court’s instruction which advised the jury that ‘an employee, while travelling on the highway in an automobile, is not considered as being in the course of his employment * * * unless the employee is directed in his employment to proceed from one place to another place.’
      “Our determination of whether there is in the record evidence of probative force that Jecker was in the course of his employment at the time of his fatal accident is made under governing law as announced above. There is evidence that he was in the course of his employment if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in performance of his duties, and (2) that he would have made the trip had there been no personal or private affairs to be furthered and Would not have made it had there been no business of his employer to be furthered.
      « $ $ * *
      “Under governing law as announced herein, we hold that there is in the record evidence of probative force supporting the jury’s finding that Jecker was in the course of his employment when he was injured. There is no claim that he turned aside from the shortest route on the return trip to Palacios to serve some purpose of his own.
      “It becomes unnecessary for us to decide whether payment by an employer for gasoline used by a workman in going from his place of residence to his place of work to begin his work day and in returning to his residence at the end of the working day is transportation ‘paid for by the employer’ within the meaning of Sec. lb, Art. 8309 and the Court’s instruction in this case.”


author: BATEMAN, Justice.

text:
    CITY OF DALLAS, Appellant, v. Sid HOLCOMB et ux., Appellees.
    No. 16346.
    Court of Civil Appeals of Texas. Dallas.
    June 26, 1964.
    Rehearing Denied July 24, 1964.

      H. P. Kucera, City Atty., N. Alex Bickley and Kenneth C. Dippel, Asst. City Attys., Dallas; W. H. Frank Barnes, Terrell, for appellant.
    Robert K. Ramsey, Terrell, for appellees;
   BATEMAN, Justice.

In this case the City of Dallas condemned' for pipeline purposes 7.9 acres of land out of a 100-acre tract owned by -appellees Sid Holcomb and wife. The date of taking was December 13, 1961. The area taken is a strip approximately 130 feet wide and extends entirely across appellees’ property from east to west. The title taken is the fee simple, although - there are reserved to appellees, their heirs and assigns, the oil, gas and other minerals, together with the right to use the surface of the land taken for agricultural and grazing purposes, subject to appellant’s unlimited right of ingress and egress. The jury found the market value of the 7.9 acres taken, considered as severed land, to be $2,580, and the value of the remaining 92.1 acres before taking at $17,920, and immediately after taking at $12,395. The difference of $5,525, representing damage to the land not taken, added to the $2,580 value of the land taken, -totaled $8,105, for which judgment was rendered in favor of appellees. All essential matters were stipulated except the value of the property taken and damages, if any, to the remainder.

The appellees contracted for purchase of the land in December 1958 and completed the purchase in early 1959 at a cost of $90 per acre. After purchasing the land they moved a small house onto it and in August 1960 they began construction of a dam across an arroyo for the purpose of forming a lake. The condemnation proceedings were begun September 26, 1961, more than a year after construction of the dam was begun. The strip taken by the City cuts through the lake and the dam. There was testimony that prior to the beginning of work upon the dam the location of the pipeline had been staked out and that Holcomb had been advised as to its location. While admitting that he knew the City intended to run the pipeline through his property he denied knowing that it would cut through the dam or the lake,

By its first four points of error on appeal the appellant complains of several rulings of the court, all of which resulted in depriving the appellant of the right to prove, by cross examination of Holcomb and introducing other witnesses, that Holcomb knew of the location of the pipeline strip to be taken and that it would cut through the dam and lake, suggesting that he built the dam and formed the lake despite such knowledge and for the purpose of enhancing his damages in these condemnation proceedings. We hold that in the light of the stipulations it was not material to any issue in this case to show that Holcomb did or did not know of the location of the intended pipeline through his property at the time he began construction of the dam. It follows that the trial judge did not abuse his discretion in refusing to permit cross examination of Holcomb concerning the matter, or in refusing to permit the witness Frank A. Royce to testify as to conversations he had with Holcomb at about the time of Holcomb’s purchase of the property, tending to show that he knew in the early part of 1959 where the pipeline would be located.

Appellant asserts that it should have had the right to introduce this testimony to counter that of Holcomb to the effect that he did not know exactly where the pipeline would go. The record shows that the only testimony Holcomb gave as to his lack of knowledge of the proposed location of the pipeline was elicited by appellant’s counsel in cross examination.

“In limitation of the broad right to put questions designed to discredit the witness (see § 182) is the established principle that the witness may not be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of laying a predicate for the introduction of independent evidence to impeach him by a showing that, as to the matter embraced in the question, the witness has answered untruthfully.” 45 Tex.Jur., WITNESSES, p. 14, § 183.
“The rule which permits a witness to be contradicted by other witnesses is subject to one important limitation. That is, he cannot be contradicted upon a collateral or immaterial matter. The chief reasons for excluding contradiction on collateral matters are reasons of policy. First, too great an inconvenience would result if every alleged error could be investigated. Much time would be wasted and the issues confused. Second, it would be unfair to the witness to expect him to come prepared to meet any error that might be alleged, although entirely beyond the .matters in litigation.” McCormick and Ray, TEXAS LAW OF EVIDENCE (2d Edition), p. 526, § 683.

The City had no lawful right to destroy appellees’ property “prior to the lawful appropriation thereof by paying or securing the payment of compensation.” Conversely, appellant has no right to complain of any lawful use made of his property by appellee prior to a legal taking thereof by the City. Hammon v. Wichita County, Tex.Civ.App., 290 S.W.2d 545, no wr. hist.; Kirschke v. City of Houston, Tex.Civ.App., 330 S.W.2d 629, err. ref. n. r. e.; City of Dallas v. McElroy, Tex.Civ.App., 254 S.W. 599, err. dism. w. o. j.; Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387; City of Dallas v. Mitchell, Tex.Civ.App., 245 S.W. 944, err. ref.; City of Dallas v. Shackelford, Tex.Civ.App., 200 S.W.2d 869, err. ref. n. r. e.; same case, 145 Tex. 528, 199 S.W.2d 503. The first four points of error are overruled.

By its fifth and sixth points of error appellant complains of the refusal of the court to permit it to show, in the course of its cross examination of appel-lees’ witness Joe Compton, that he had previously expressed the opinion that the property in question was worth approximately 25 percent of the value testified to by him on the trial. This witness, after qualifying as "an expert familiar with the land in question, testified that in his opinion the market value of the property at the time of taking was $250 an acre; that after the taking and the destruction of the lake the remainder of the land would be •vtarth only about $90 per acre, ■ and that the total award, for the value of the property taken and the damage to that not taken, should be $21,316. Appellant’s counsel then asked: “All right, when you were under oath once before, Mr. Compton,” when counsel for appellees made this objection: “I object unless he states the time and place and circumstances.” Appellant’s counsel then said: “All right, when you signed the oath as a special commissioner-to sit on this case and properly assess the values that ought to be paid to this man, dated, your oath signed the 27th day of September, 1961', did you agree to make a proper assessment at that time?” ' Counsel for appellees then said: ‘ “Please the court, I would like to make the objection as to any figures being introduced. It’s all right for him to ask him, but no figures.” This objection was sustained. After the witness admitted signing it, appellant’s counsel offered the award of the special commissioners in evidence, and appellees’ objection thereto was sustained. The witness testified on redirect examination that he was only one of the three commissioners, that he did not agree with the amount of the award, that the other two commissioners did agree on it and that he thought the majority ruled and that he would have to sign it although it was not his award and his idea was different from that. Under the record here presented, we think the court erred in refusing appellant the right to cross examine this witness concerning his signing and swearing to the award of the commissioners, which assessed the total damages at $4,785.42.

Of course, we recognize that under the law the parties were entitled to a trial de novo, in which the amount of the award by the special commissioners is ordinarily not admissible for the purpose of establishing a measure of damages. 22 Tex. Jur.2d EMINENT DOMAIN, p. 428, § 303. But a landowner who introduces the testimony of one of the special commissioners to establish a value substantially different from that certified by him under oath in his former capacity as special commissioner must expect to have his witness vigorously cross examined concerning such discrepancy. In its quest for the truth, the court should have permitted appellant’s counsel to cross examine the witness fully. Appellant was entitled to have the jury know that this witness not only swore to a lower áward when-serving as a special commissioner, but also to know that he assessed that damage at $4,785.42, as compared to the damages of $21,316 he testified to on the trial.

Neither party had said anything to disclose to the jury that the prior opinion was expresséd in, the awárd signed and sworn to by the 'witness, or even that 'the witness was one of the. special commissioners, but counsel for appellees objected to appellant’s counsel going into the matter at all "unless he states the time and place and circumstances.” Appellees thus waived their right to object to the award itself being admitted in evidence and in effect invited appellant to disclose that the prior inconsistent appraisal was in fact the award itself. We think the court’s ruling in this respect was such error as to deprive appellant of a fair trial, requiring reversal. State v. Kimbauer, Tex.Civ.App., 365 S.W.2d 201, err. ref. n. r. e.; Texas Electric Service Co. v. Campbell, Tex.Civ.App., 328 S.W.2d 208, 213, reversed on other grounds, Texas Electric Service Co. v. Campbell, 161 Tex. 77, 336 S.W.2d 742; Schwab v. County of Bexar, Tex.Civ.App., 366 S.W.2d 952, err. ref. n. r. e. The fifth and sixth points are sustained.

In its seventh point of error appellant complains of the refusal of the court to instruct the jury, as requested by appellant, to the effect that “they were not to take into consideration any sentimental value or the desires or personal feelings of the Defendant or any injury personal to them and not a part of the land itself,” in view of the fact that Mr. Holcomb had been allowed to testify over appellant’s objections that he and his family used the land in question “for weekend purposes,” and because his little girl liked to fish, and Mr. Holcomb cried while giving this testimony. We find no such requested instruction in the record before us but, as appellant’s statement concerning the matter in its brief is unchallenged by appellees we shall assume that such instruction was properly requested and overruled by the court and that appellant excepted. Rule 419, Vernon’s Texas Rules of Civil Procedure.

The cases cited by appellant in support of this point hold that in condemnation suits evidence of sentimental value, or of intentions to make the property the owner’s home in his declining years, should not be admitted or, if admitted, should be stricken on motion. It is true that the evidence complained of here was admitted over appellant’s objection; but there was no motion made to strike it and appellant does not assert in any of its points that the judgment should be reversed because of the error in admitting the evidence. Under these circumstances, we see no reversible error in the refusal of the court to give the requested special instruction. The court correctly instructed the jury as to what should be taken into consideration in determining the values inquired about; the court was not required to include in the charge an instruction as to all the myriad things that should not be considered. City of Fort Worth v. Charbonneau, Tex.Civ.App., 166 S.W. 387, err. dism.; State v. Doom, Tex.Civ.App., 278 S.W. 255, no wr. hist.

The seventh point is overruled.

Appellant’s eighth point asserts that there was no evidence to support the jury’s answer to Special Issue No. 1, inquiring as to the market value of the land taken, merely because two of appellees’ appraisal witnesses (one of them being their attorney) compared appellees’ land with two other tracts, one selling for $275 an acre and one for $840 an acre. Appellant argues that this testimony is so patently speculative as to destroy its probative value. The point of “no evidence”, however, is obviously not well taken because, even if the testimony of these two witnesses was completely destroyed, there were two other qualified witnesses (R. B. Moseley and Searcy Ferguson) whose testimony would support the finding. The eighth point is overruled.

In view of what we have said above, it is unnecessary for us to discuss appellant’s ninth and last point, which urges reversal because of the cumulative effect of all the alleged errors.

Because of the error of the trial court in unduly restricting the appellant’s cross examination of the witness Compton, we reverse the judgment and remand the case for another trial.

Reversed and remanded.

On-Motion for Rehearing

Without retreating in any respect from our holding that the trial court committed error in restricting the cross examination of the witness Compton, we have been persuaded by careful consideration of appellee’s motion for rehearing that this error did not amount “to such a denial of the rights of the ■ appellant as was reasonably calculated to cause and probably did ■cause the rendition of an improper judgment in the case,” and that our judgment •of reversal was unjustified in the light of Rule 434, Vernon’s Texas R.C.P.

As said by Mr. Justice Walker speaking for the Supreme Court of Texas in Dennis v. Hulse, Tex.Sup.1962, 362 S.W.2d 308, 309:

“Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in, the case.” .

In addition to the testimony of Joe Compton, the appellees introduced the testimony of seven disinterested and legally qualified witnesses who testified that in their opinion the total damages ranged from a low of $13,488 to a high of $28,488. The arithmetical mean of those figures is $20,-988, which is only $328 less than the total damages testified to by the witness Joe Compton. As we see it now, the most that appellant’s counsel could have expected to accomplish by completing the cross examination of Compton, and showing that he had previously assessed these damages at only $4,785.42, was to persuade the jury to reject and disregard Compton’s testimony entirely. If that end had been accomplished, there were still seven other disinterested witnesses whose -testimony would have easily justified a verdict of more than the $8,105 total damages found .by the jury. Their testimony would not have been affected by the complete obliteration of Compton’s testimony. That being true, we cannot say that the refusal of the trial court to permit counsel for appellant to discredit, or even to destroy, the testimony of one witness “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” The burden was on appellant to make such a showing in this court. Our further analysis of the entire record of testimony indicates rather clearly to us that appellant has not met this burden.

The appellees’ motion for rehearing is sustained, our former judgment reversing and remanding is set aside, and the judg^ ment of the trial court is affirmed.


author: TIREY, Justice.

text:
    Thomas SUMMERS et ux., Appellants, v. SKILLERN & SONS, INC., Appellee.
    No. 4207.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1964.
    Rehearing Denied July 23, 1964.

      Harris, Ball & Davis, Arlington, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, Philip L. Kelton and Wilson Hern-don, Dallas, for appellee.
   TIREY, Justice.

This cause (non jury) is an appeal from an order sustaining the plea of privilege of the defendant, Skillern & Sons, Inc., to be sued in Dallas County, the alleged place of its residence. Appellants, plaintiffs, sought to recover damages for the wrongful imprisonment of his wife, Paula Jean Summers, age twenty. Appellee seasonably filed its plea of privilege to be sued in Dallas County, the county of its residence, and plaintiffs filed their controverting affidavit and alleged substantially that venue lies in Tarrant County by virtue of the provisions of subdivision 23 of Art. 1995, Vernon’s Ann.Tex.St., which provides in part:

“Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; * * ” (emphasis added)

Plaintiffs further allege that this action was properly brought in Tarrant County because it is a suit against a private corporation, and that said corporation has a representative or agency in Tarrant County, and that plaintiffs resided in Tarrant County at the time the cause of action, or a part thereof, arose. Testimony was tendered to the effect that appellants were husband and wife and lived in Tarrant County, and that the wife was employed by defendant at Station 39, in Arlington’s Park Plaza, Arlington, Tar-rant County, Texas; that defendant is incorporated; that in late December 1961, the wife was instructed by her manager to go to a store meeting in Dallas; that she was told the meeting was to be held at Skillern’s warehouse in Dallas, which is a frequent and common thing for such meetings to be held; that such meeting was actually held at Hopper and Hawkins who was employed by the defendant for the purpose of investigating or checking defendant’s stores; that after his wife was taken to the office of Hopper and Hawkins; that plaintiff’s wife was strapped in a chair and caused to take a lie detector test; that at the time the test was made plaintiff’s wife was employed by defendant at defendant’s store in Arlington, Tarrant County; that thereafter, on January 16, 1962, during plaintiff’s wife’s vacation, Bill Strickland (a district manager) instructed plaintiff’s wife to return to the same place as before and she did to find that there awaited private investigators who locked her in a room and forced her to remain against her will until such a time as they forced her to sign a piece of paper; that threats were made against her person and her family; that Mrs. Summers attempted at one time to leave but she was pushed down in the chair and she was then afraid to try to leave again; that because of this treatment plaintiff suffered damages from personal injury giving rise to the filing of this suit.

The judgment is assailed on one point, it is: “The court erred in sustaining the plea of privilege because appellant properly plead and proved that this is a suit against a private corporation; that appellant resided in Tarrant County at the time the cause of action, or part thereof, arose, and that appel-lee has and has had at all pertinent times, an agency and representative in Tarrant County; that, thereafter, this action was properly brought in Tarrant County, under the provisions of subdivision 23 of Article 1995, V.A.T.S.” Appellee’s counterpoint 1 is to the effect that the court correctly sustained its plea of privilege because plaintiff did not prove by a preponderance of the evidence that a cause of action arose in their favor against the defendant. We affirm the judgment of the trial court.

As we understand Mrs. Summer’s testimony it is to the effect that, at the request of defendant, she made two trips to Dallas. The first trip she made in the latter part of December, 1961. This first trip seems to have been made in the afternoon and that she got home about 6:30 that night, and that she went to work the next day. The next trip was made on the 16th day of January, 1962, and with reference to this trip she testified in part:

“Q. In other words, you started your vacation and they called you to come back?
“A. Yes, sir. Bill Strickland called me at home.
* 4’ * * * *
“Q. Then, what did you do, what happened ?
“A. He called me up and told me that the man that interviewed me a few weeks ago wanted to ask me some-more questions about — about the store, about the survey, and I said, ‘Well, Mr. Strickland, I’m on my vacation,’ and he said, ‘Well, Mrs. Summers, I’ll see that you get paid for going over there on your time.’ So, I went up to Skillern’s-Store in Park Plaza, and talked to Mr. McDonald, (her manager) and he told me, he said, ‘Yes, go on over there,’ he said, ‘Bill Strickland just called me, and asked me, and I told him that you’d be there.’ So, I went over, back over to. Dallas—
“Q. — By yourself this time?
“A. No, sir, I went with a friend.
“Q. Who was the friend?
“A. Carol Sills, she was a former employee of Skillerns. So, I went in there, and I didn't see Bill Strickland, or any of the Skillern employees. He, the receptionist at the door took me back to this room, and just as I got to the door there were some men that met me and took me in a room and one locked the door, and the other one sat behind a desk and one propped a chair up in front of the door, and then they started telling me that they were private investigators, and—
“Q. Did they say who they were hired by?
“A. No, sir. They just told me they were private investigators. Then, they started threatening me, telling me they were going to pick the phone up and call the District Attorney, and — I have a little brother, I’ve had him for four or five years, and they told me everything about myself, and even the church I went to, my children, and they threatened to have my little brother taken away from me and they just kept on at me, and then they — one man sat down behind the desk and propped his feet up in front of me on the desk, they had me cornered behind the desk.
“Q. Did you ever at any time try to get up and leave?
“A. Yes, sir, one time.
“Q. Were they keeping you in there— ?
“A. — Yes, sir, they were—
"Q. — Without your permission?
“A. Yes, sir, they were.
“Q. And, you did try to get up and go out of the room?
“A. One time I did.
“Q. Why did you not try more often?
“A. Because I was afraid of them.
“Q. You had never seen them before in your life?
“A. No, sir.
“Q. You didn’t know what on earth they were doing?
“A. (Witness indicating, ‘No’).
“Q. All right. Now then, from this occasion have you suffered nervousness, and nervous injuries?
“A. Well, I just—
“Q. — What injuries have you suffered?
“A. Well, right after it happened I wasn’t even in good health at all, I couldn’t eat, or anything. I just stayed sick all the time. For about two months I was sick, or about three I guess, because back in about April, or May, somewhere along in there I went back to work.
“Q. Were you able to work or — even if you could have gone to work, were you able to, could you have — ?
“A. — No, sir, I don’t believe so.
“Q. Approximately how much money were you making at the time?
“A. At Skillern’s?
“Q. Yes
“A. Forty dollars, ($40.00) a week.
“Q. Then, you lost all of that income. That is, if you had been able to work whether you worked at Skillern’s or not you — ?
“A. — Yes, sir.
“Q. All right. Did you go see your doctor about your — ?
“A. — Yes, sir, I was — my nerves, and everything until I had, I was treated for just about everything. I was, just stayed sick for about three months.
“Q. Can you describe your sickness? Was it a — ?
“A. Well, it was just my nerves.
“Q. Was your stomach upset, or what ? Was it that sort of thing?
“A. Well, I couldn’t tell you just exactly how I — .
“Q. — You couldn’t keep anything on your stomach?
“A. No, I eat. I lost about thirty-five pounds, though.
“Q. All right. Now, what doctor did you go to ?
“A. John F. Bida.”

Mr. Geo. B. Kelly testified to the effect that he was Secretary-Treasurer of the appellee at all times pertinent to this controversy, and that in 1962 Hopper and Hawkins were employed by appellee for the purpose of checking its individual stores, and for making any special investigations that they asked them to perform; that they asked Hopper and Hawkins in January, 1962, to take the employees of the store in question and give them a polygraph test, and that he gave these instructions to the District Manager, Bill Strickland; that he, Mr. Strickland, would have to ask the people to take this on a voluntary basis; that he had a tremendous shortage in the store; that he told Mr. Strickland that the employees were not required to go over there, and that they must go voluntarily, hut that he did not instruct Mr. Strickland to tell the employees for what purpose they were going over to Hopper and Hawkins. In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, we find this statement of the rule:

“(1) It is well settled that 'with the venue challenged, under proper plea, by one sued without his county, * * the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.’ ”

Our Supreme Court has not changed the foregoing rule. We have considered the testimony tendered very carefully and we are of the view that there is no suggestion that any act or conduct contended to constitute false imprisonment was committed by anyone other than Hopper and Hawkins. We are of the further view that the record shows that the alleged acts constituting the claimed false imprisonment were solely those of Hopper and Hawkins, and they were engaged in a distinct and generally recognized employment which made them an independent contractor, and that in this instance they undertook to do a specific piece of work for the appellee, using their own means and methods without submitting themselves to control in respect to all its details, and with a method of payment which was to pay them for the specific work. We are of the view that under the testimony in this, record that Hopper and Hawkins were independent contractors and not the agents of appellee, and that this view brings this cause within the rule announced by our Supreme Court in Pitchfork Land & Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598, 603; Cunningham v. The International Railroad Co., 51 Tex. 503, 32 Am. Rep. 632. Under Compton v. Elliott, supra, the burden of proof rested upon appellants to establish their alleged cause of action. Since this hearing was before the court without a jury, and since there was no request for findings of fact, and none filed, it must be assumed that the court found that appellants failed to establish one or more of the claimed elements of their cause of action. See Smith v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 331 S.W.2d 829, (n. w. h.) and cases cited under points (1,2).

Accordingly, the judgment of the trial court is affirmed.