author: LANGDON, Chief Justice.

text:
    FRONTIER THEATRES INC., Appellant, v. Paul Bruce BROWN et ux., Appellees.
    No. 5544.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 3, 1962.
    Rehearing Denied Nov. 28, 1962.

      Richard L. Toll, Russell & Tomlin, Pecos, for appellant.
    Richard D. Naylor, John P. Dennison, Pecos, for appellees.
   LANGDON, Chief Justice.

On May 11, 1958 fire destroyed a drive-in theatre owned by appellant, Frontier Theatres, Inc., located near the City of Pecos, in Reeves County, Texas. Certain household furnishings, clothing, money, jewelry and other personal property belonging to an employee of appellant (Mrs. Blanche Elizabeth Brown), not used by her in the employment, were lost or destroyed in the fire. Mrs. Brown and her husband brought suit in the District Court of Reeves County against appellant for damages sustained by reason of the loss of her personal property.

The cause came on for trial before the court and a jury, but by agreement of the parties the jury was dismissed and the case tried to the court. From a judgment in favor of Mrs. Brown and her husband, fixing liability against appellant and awarding damages to the appellees in the sum of $21,-253.00, together with interest thereon from the date of loss, appellant has prosecuted this appeal.

The judgment entered by the court below allowed recovery for all the property allegedly lost by appellees in the fire. In addition to the damages allowed for the customary household furnishings, clothing and personal effects ordinarily possessed by families for their personal use and convenience at home, the trial court allowed recovery for the loss of $828.00 in cash and $10,121.08 for the loss of certain-“irreplaceable goods and chattels”, among which (with the values thereof as found by the court) were the following: A coin collection, $666.66; two slumber spreads, $666.66 ; one wedding veil, shoes and point lace collar,. $666.66; one key-wound heirloom watchr $666.66; a deed signed by U. S. Grant,. $166.66; one emerald ring, $733.33, and $200.00 for the loss of another such ring;, one 36-cal. Colt and holster, $500.00; one English letter box, $233.33; one cameo pin; $333.33, together with many other presumably rare and valuable items.

This case is unique because it is a suit by an employee arising out of an accident on the employer’s premises, in which the employee seeks to recover damages from her employer, not for any personal injury, but solely for the accidental loss of personal property belonging to such employee, not used in the master’s business, destroyed as the result of a fire on the master’s premises.

While it would seem that such loss by an employee would not be an infrequent occurrence, we have been unable to find any Texas cases involving a comparable fact situation, nor have we been able to find a case from any other jurisdiction precisely in point.

Obviously, since no personal injuries are involved in this litigation, appellant’s liability, if any, to appellees, solely for loss of personal property, cannot be based upon the Workmen’s Compensation laws of this state, and we are unaware of the existence of any other statutory authority under which liability might be imposed here. Consequently, we have concluded that if the trial court’s judgment, decreeing appellant liable to ap-pellees, is to be affirmed it must be upon rules and principles applicable at common law.

The record in this case is voluminous (357 pages). It reflects that appellant is a corporation doing business in Texas with its office and principal place of business located at Dallas. It owns and operates a number of theatres in Texas and New Mexico and was the owner of the Eagle Drive-In The-atre near Pecos at the time of its destruction by- fire on May 11, 1958. Mr. Floyd H. Scott, of Richardson, Texas, testified that he was one of appellant’s district managers; that the company owned three theatres in Pecos, including the Eagle Drive-In; that these theatres were within the district over which he had general supervision. He stated that it was a policy of the company in any city or town where it had more than one theatre to employ a local or city manager as its agent or contact in such city; that Mr. Russell Ackley was appellant’s local manager in Pecos at the time in question, and that he in turn had authority to hire such personnel as was required to operate the theatres, including the authority to hire managers for each of the three the-atres.

It is undisputed that some time prior to August of 1957 appellant’s local manager, Mr. Russell Ackley, employed Mrs. Brown and two of her minor sons, Larry Paul Brown and Roger Dale Brown, to work for appellant at its Eagle Drive-In Theatre near Pecos. She was placed on the payroll on August 24, 1957 but, according to Mrs. Brown’s own testimony, she had spent most of the preceding month of July and the early part of August on appellant’s premises at the drive-in, presumably to familiarize herself with the premises and the work she was to perform. On August 24, 1957 Mrs. Brown, together with her two minor sons, commenced their employment with appellant. They moved into and occupied an apartment located on the premises, bringing with them a trailer-house and many other personal possessions. Part of these personal possessions were placed by plaintiff in the apartment, and others were left in the trailer-house. Mrs. Brown placed the house trailer at the place it was located at the time of the fire, and connected — or caused it to be connected — to appellant’s butane gas system. Some time thereafter Mrs. Brown also brought other personal property on the premises, including a two-wheel trailer and a truck (not otherwise described), both of which contained a number of other personal items belonging to Mrs. Brown and her family. The two vehicles (truck and two-wheel trailer) were brought upon appellant’s premises and placed where they were at the time of the fire without express authority from Mr. Ackley, but without any objection on his part.

In addition to Mrs. Brown and her two sons, the Brown family consisted of Mrs. Brown’s husband (a disabled oil-field driller), and a minor daughter, Judy. Other members of the family were grown or married and did not live on the premises; consequently, they are not directly involved in this litigation. Mrs. Brown’s husband, although a necessary party, was not an employee of appellant. Therefore neither he nor Judy (the Brown’s minor daughter) is otherwise connected with this suit.

The apartment with which we are concerned here formed the base of appellant’s theatre screen. The entire structure is referred to in the record as the “tower structure”. In its findings of fact the trial court found that “such tower structure was of a total height of approximately 60 feet, the lower 8 or 8½ feet of which contained an apartment for residential purposes. The upper 51½ or 52 feet of such structure was so constructed as to afford a theatre screen oil the inside portion thereof and a large neon sign on the exterior thereof”. The trial court also found that the fire in question was caused by and resulted from defects in the electrical wiring connected to the neon sign in that portion of the tower structure located above the apartment occupied by ap-pellees.

The record reflects that the contract of employment under which Mrs. Brown and her two sons commenced their employment with appellant was negotiated entirely by Mrs. Brown. Larry Brown, the older of the two boys, had previously worked for appellant at its theatres in Crane, Texas for a period of two and a half years, as a motion picture projectionist, and was engaged in this work at appellant’s Eagle Drive-In on the night of the fire in question. The other son, Roger Dale Brown, was the marquee boy (a job involving the lettering •of signs advertising current and coming attractions on the marquee) ; he also assisted in the collection of tickets at the gate and worked in the snack bar during intermissions. The nature of Mrs. Brown’s employment is susceptible of being determined by her own testimony given in a deposition on January 9, 1959, more than two years before the trial of this cause. The •deposition is in evidence, having been offered by appellees themselves, without limitation or restriction. Concerning her ■contract negotiations with Mr. Ackley (appellant’s local manager) and the job requirements, Mrs. Brown’s testimony was as follows:

“Q You say he (Mr. Ackley) employed you as manager because he had no one to take charge out there. What is a manager?
■“A Well you have to take complete charge out there. I was under his supervision. He was my supervisor above me. Anything that I needed, I was allowed a certain amount to run on, of course, I had to take care of the books out there.
“Q Did you have charge of the concession stand?
■“A Yes, sir.
“Q Did you have charge of cleaning up the place?
'“A No, we had a janitor out there.
“Q Were you supposed to see that he cleaned it up?
'“A Yes, sir.
“Q That would include all the property out there?
■“A Yes, sir.
“Q In other words, you were in charge of the entire set-up out there ?
'“A Yes, sir.
“Q And if anything went wrong with it, you were supposed to report it to Mr. Ackley?
“A . Yes, sir.”

At the trial Mrs. Brown testified that she was given the “title” of manager but that she felt that she was a manager in name only, because there was an “undercurrent” or feeling on her part that someone else was always checking on her. She also testified that she merely reported to Mr. Ack-ley what was needed in the way of supplies or repairs, and that he was the one who ordered the supplies and repair work whenever they were needed. She stated that she had nothing to do with the hiring or firing of personnel; that Mr. Ackley did all of the hiring and firing of employees.

It is undisputed that at the time of the fire in question Mrs. Brown and her family had lived on the premises for approximately ten months. If her own testimony is true, she unquestionably had access (in her capacity as an employee) to every nook and cranny of the drive-in theatre. She not only had full and complete access to the entire premises, but was charged with the responsibility of looking after such premises and reporting any defects she might observe therein, or in the fixtures and equipment thereon, to her immediate superior, Mr. Ackley. According to her own testimony Mrs. Brown discovered, a week or ten days before the fire, that something was wrong with the electrical wiring or apparatus in the neon sign in the upper portion of the tower structure. She testified that she observed sparks running up the side of the building from the neon sign; that she pulled the switch and the sparks immediately stopped. Thereafter she reported the matter to Mr. Ackley, who told her to leave the sign turned off, and that he would report the trouble. A day or two later an electrician came out to the drive-in, replaced one or two of the transformers inside the tower, and took away some of the neon tubing for further repairs to be made in his shop. Mrs. Brown called the electrician’s attention to a bird’s nest somewhere in the tower, and he returned the next morning at Mrs. Brown’s request to remove the nest. Before leaving the premises the electrician told Mrs. Brown that he had removed some of the neon tubing for repairs; that it would take perhaps two weeks to make the necessary repairs at the shop, but that in the mean-time the sign could be safely operated. When the sign was turned on the following evening, Mrs. Brown again observed sparks in approximately the same area in which she had previously seen them, and reported the matter to Mr. Ackley; later, on Saturday of the same week, she again mentioned it to Mr. Ackley during the course of one of their regular weekly meetings, because she “just didn’t feel that things were right”.

The fire occurred on May 11, 1958 (a Sunday) before all repairs to be made were completed, and it is not entirely clear from the record whether Mrs. Brown’s last conversation with Mr. Ackley regarding the defect in the sign was on the Saturday immediately preceding the fire on Sunday, or whether it was seven days earlier. In any event there can be no question but that Mrs. Brown was, at all pertinent times, fully aware of the existence of a defect in the electrical wiring or apparatus in the neon sign, and was apprehensive about it. The record also reflects, and the court so found, that both Mrs. Brown and her husband had full knowledge at the time of the commencement of the above-mentioned employment agreement with appellant, and at all times thereafter, of the facilities existing at the appellant’s premises for fighting fires, and at all such times had full knowledge of the fact that there was no water system available at such premises to combat fires. Further, the trial court found that the switch controlling the neon sign on the tower structure was located at a place accessible to Mrs. Brown; that she knew the correct method of turning said sign on and off, and cutting' off the electrical current supplying said sign as well as all other electrical current used at said drive-in theatre.

The theory relied upon by appellees, for the purpose of establishing the liability of appellant for the loss of appellees’ personal property, is based primarily upon the contention that a master-servant relationship existed between appellant and appel-lees at all pertinent times. In this connection they alleged that appellant was negligent, (1), in failing to discontinue the operation of the drive-in theatre until proper and adequate repairs had been made to the electrical wiring in the tower building, after notice of a defect therein had been transmitted by appellees to appellant; (2), in failing to inspect the electrical wiring in the structure for the purpose of determining whether or not the same could be used without danger of fire; (3), in failing to equip the theatre tower and living quarters therein with adequate fire extinguishing equipment to enable appellees to combat any such fire; and (4), in failing to furnish appellees with a safe place in which to work and a safe place in which to live while performing the services agreed upon in their contract of employment. Ap-pellees also relied upon the theory that, in the event the trial court should find that a landlord-tenant relationship existed between appellant and appellees because of appellees’ occupancy of part of the premises (the lower portion of the tower structure) for residential purposes, appellant would nevertheless still be liable to appel-lees because appellant had retained the exclusive management and control of the upper portion of the tower structure where the fire in question originated, and as a landlord was under duty to maintain and operate such upper portion in a reasonably safe and prudent manner so as to prevent damage to plaintiffs’ property located in the lower portion of such structure and used by them for residential purposes.

By way of defense appellant specially pleaded assumed risk and contributory neg ligence.

Lengthy findings of fact and conclusions of law, too numerous to set out in full herein, were made by the trial court. On the issues of negligence, the trial court made the following findings:

“IS. The Defendant’s failure to repair the electrical defects after knowledge of their existence, was negligence and such negligence was a proximate cause of the fire in question.
“16. The Defendant’s failure to provide and maintain adequate fire fighting equipment and facilities under the existing conditions was negligence, and such negligence was a proximate cause of the fire in question.
“17. The Defendant failed to furnish Plaintiffs a safe place in which to work and to live while such work was being performed, which failure was negligence and such negligence was a proximate cause of the fire in question.
“18. The defective electrical wiring and apparatus causing the fire in question was an instrumentality in the exclusive management and control of the Defendant; that there was an entire absence of conduct on the part of the Plaintiff contributing to the fire in question; and that the fire in question would not ordinarily have occurred, but for some negligent act or omission on the part of said Defendant, or if due care had been exercised.”

Regardless of whether the liability of the appellant (found by the trial court to exist here) is based upon a master-servant, landlord-tenant or some other relationship, where it is contended that the plaintiff sustained an injury (either to person or property) as a result of the defendant’s conduct, it is elementary that it must be shown that the defendant owed a legal duty of some character to the plaintiff with respect to such injury, and that defendant violated such duty. (See “Of Torts and Defendants”, by Rassman, 16 Southwestern Law Journal 244, and cases cited).

Appellant has based its appeal upon seventeen points of error, the first six of which relate in one way or another to the question of whether appellant incurred any liability to appellees by reason of the fire.

By Point One it is contended that the trial court erred in rendering any judgment against appellant for damages to appellees’ property because the undisputed evidence shows that appellant did not breach any legal duty which it owed to appellees in connection with the hazards causing or contributing to cause the destruction of appel-lees’ property by fire; Point Two, that ap-pellees, in their positions as manager of appellant’s theatre, and tenants of appellant, were as well or better situated than appellant to foresee and prevent the injury and damage to their personal property, and were therefore contributorily negligent as a matter of law; Point Three — appellees had full notice and knowledge of the condition of the theatre premises and of the facilities for turning off the neon sign, as well as the facilities for fighting fires, long prior to the occurrence of the fire, and therefore assumed the risk of any damage or injury that might occur by reason of such condition; Point Four — appellees were contributorily negligent as a matter of law because, under the undisputed testimony of Mrs. Brown, she had seen and observed the defect in the neon sign prior to the fire and was conscious of a danger of fire from the defective wiring in the neon sign; and failed to use the means at hand, of which she had full knowledge, to turn off said sign and thereby prevent the occurrence of such fire; Point Five — appellant was under no duty to provide fire-fighting equipment to said premises; appellees took possession of the premises and used and occupied the same with full notice and knowledge of the absence of any such fire-fighting equipment; therefore, the trial court’s Finding of Fact (No. 16, supra) that appellant failed to furnish adequate fire-fighting equipment, is insufficient to form the basis of any judgment against appellant; and, Point Six— the trial court’s Finding of Fact No. 17 (quoted above) is insufficient, as a matter of law, to support such judgment.

If we have correctly construed the trial court’s Findings of Fact Nos. 15, 16, 17 and 18, set out above, the liability of appellant, as determined by the court, is based upon two alleged breaches of duty, one being the failure of appellant to absolutely protect appellees against the danger of a fire caused by an alleged defect in the electrical wiring, with respect to which both the appellant and the appellees were fully aware; and the other, breach by appellant of . an alleged duty to provide adequate equipment or facilities at the premises to combat any fire that might occur from any cause.

There is sufficient evidence to have supported a finding that appellees occupied the tower apartment and the site for their trailer and other personal property, located and placed by them immediately adjacent to the tower structure, for residential purposes and that a landlord-tenant relationship was created by virtue of the fact that appellees paid a specified monthly sum of money to appellant by check in connection with their use of such premises for residential purposes. In each instance Mrs. Brown indicated on the face of such checks that they were for “rent”. In order to dispose of the question we will assume (without so holding) that appellees’ occupancy of appellant’s premises at the time of the fire was based upon a landlord-tenant relationship, and that they were not required to occupy and live on such premises as a part of their employment.

Texas has no statutory provisions respecting the obligation of a landlord to repair the premises, and affixing liability for failure to repair. In the absence of such a statute, or a specific agreement on the part of the 'landlord to keen the premises in repair, the tenant takes the premises in the condition he finds them, and the landlord may be held liable in damages to his tenant by reason of some defect in the premises where such defect is hidden, but only if the landlord knew of the existence of the hidden defect and failed to disclose it to his tenant. Where the tenant has actual knowledge of the hidden defect, the landlord is under no’ duty to disclose it. Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446; Churchwell et ux. v. Pure Oil Pipe Line Co.,. Tex.Civ.App., 289 S.W. 196.

While it is true, under the facts of this case as found by the court, appellees occupied only the lower portion of the tower structure for residential purposes and that the upper 51 or 52 feet of such structure, including the screen, neon sign and all electrical apparatus pertaining thereto, was not a part of such apartment, but was reserved by and under the exclusive control of appellant, we are nevertheless of the opinion that such facts are not sufficient to impose liability upon this appellant based upon a landlord-tenant relationship where it is shown that the tenants (appellees) were fully aware .of the defect in the upper portion of the structure and were themselves, as agents and employees of the corporate owner of the premises, in actual physical possession of the entire drive-in theatre with complete and unrestricted access to every part thereof. As said in United East & West Oil Company v. Dyer, 139 Tex. 318, 162 S.W.2d 680, “A person may occupy premises as a tenant and yet be a servant of the owner * The nature of a corporation is such that it can exercise possession and control only through its agents and employees. Appel-lees, if we assume they were tenants of appellant, occupied appellant’s premises in a dual capacity, and it is immaterial that they rented or used only a portion of such premises for residential purposes, where the balance of the premises was also under their control by virtue of their employment. We believe they had the same access, possession and control over the appellant’s premises as they would have had if they had rented all of such premises. In such case the law in Texas with respect to the liability of landlord to a tenant is quite well settled. Generally the cases hold that in order for a Texas court to affix liability upon a landlord for injury to a tenant, there must exist some type of contract or agreement between the landlord and the tenant imposing a duty upon the landlord to keep the premises in repair, or a covenant to keep the premises in a reasonably safe condition. We hold, therefore, that appellant owed no duty to appel-lees based on the theory of a landlord-tenant relationship under the facts of this case. Consequently, appellant may not be held liable to appellees on such theory.

This brings us to a discussion of appellees’ primary theory of recovery based upon a master-servant relationship.

As in other cases of negligence, the master’s liability to a servant must be based upon the breach of some legal duty. He is not an absolute insurer of the safety of either the servant’s person or property, even with respect to deficient or defective instru-mentalities for the work.

The three elements of actionable negligence — a legal duty owed by one person to another; a breach of that duty; and damage proximately resulting from such breach — must exist before there can be any recovery. The duty need not be one imposed by contract between the parties, but may be one implied by law from the circumstances and relationship of the parties. Toward a stranger or trespasser, the owner of premises owes a lesser duty than toward one whom he has invited upon them, and the duty which a carrier owes to its passengers for hire is greater still. It is considered that a servant, when upon his master’s premises in the course of his employment, occupies the position of an invited person and therefore is entitled to warning and protection against all the dangers which the master knows and which the servant does not know and appreciate.

There is no evidence in this record to show that the defective condition in the electrical wiring on appellant’s premises existed at any time prior to a week or ten days before the fire. The appellee, Mrs. Brown, discovered the defect herself when she observed sparks running up the side of the tower structure, and it was she who reported the matter to Mr. Ackley. Mr. Ackley, in turn, reported the condition to the electrical firm that made the original installation, and repairs were immediately commenced, part of which were to be made in the electric company’s own shop, and would require approximately two weeks to complete. The fire occurred before all contemplated repairs were completed.

According to the testimony of Mrs. Brown’s son, Larry Paul Brown (who at the time of the fire was working at the drive-in as a projectionist), he also had observed the sparks from the sign a week or more prior to the fire; he testified that his mother had reported the matter to Mr. Ackley, and that a man arrived to make repairs about two days after the sparks had first been observed by him; that his mother had questioned the repairman as to the possibility of a fire due to the neon and asked him if it was safe to operate after he had worked on it. The man told the witness’ mother that he had never heard of a case of fire caused by neon, and that it would be safe to operate. After the man left, sparks were again observed when the sign was turned on at night. Larry Paul testified that the sign was controlled by several different circuits and that he had made tests and discovered that the sparks ceased when certain switches were turned off.

In his original Findings of Fact the trial court made the following finding:

“4. Under the terms of the employment agreement, it was agreed that the Brown family would live on the theatre grounds on a 24 hour a day basis and that such family would serve as caretakers of Defendant’s property to deter vandalism and to report to Defendant’s city manager repairs of any nature that were needed, as well as other pertinent information concerning such property.”

In response to appellant’s request, the trial court made the following additional findings:

“7.
“I find that the plaintiff, Blanche Elizabeth Brown and her husband, James Perry Brown, had full knowledge, at the time of the commencement of the above mentioned employment agreement with this Defendant, and at all times thereafter, of the facilities existing at the Defendant’s premises for fighting fires, and at all such times had full knowledge of the fact that there was no water system available at such premises to combat fires.”
“10.
“I find that the switch controlling the neon sign on the tower structure was located at a place accessible to the Plaintiff, Blanche Elizabeth Brown; that she knew the correct method of turning said sign on and off, and cutting of the electrical current supplying said sign, as well as all other electrical current used at said drive-in theatre.”

Since we are concerned here with conditions existing on the master’s premises which .resulted in damages confined solely to chattels belonging to the servant, it is unfortunate that the rules laid down in a vast majority of the cases are stated only in terms of conduct on the part of the master creating risks of bodily harm. The weight of authority seems to favor rules that impose the same duties upon a master toward a servant on the master’s premises in the scope of the employment that any other owner or possessor of similar premises owes to an invitee. Generally, servants are treated as business invitees (as distinguished from gratuitous invitees), while on the premises in the scope of their employment. Restatement of the Law of Torts, Sec. 497b (1948 Supp.) ; see also Ch. 13.

In Royal Insurance Company v. Mazzei, 50 Cal.App.2d 549, 123 P.2d 586, it was held: “The duties owed to chattels in the possession of a business invitee are the same as the duties owed to the business invitee personally.” In the Mazzei case, suit was against the owner and operator of a cotton gin and yard for damages to thirty bales of cotton which caught fire after being loaded on a truck belonging to Mazzei, a business invitee, when the hoist of the truck came in contact with three electric wires maintained by the gin over a road in the gin yard. The wires were maintained by the owner of the gin at a height of only twelve feet above the road, which was at least eleven inches less than the height of the hoist on Mazzei’s truck, as well as all other cotton trucks which used the road for the purpose of moving cotton from the gin premises. The owner of the gin was aware of all these facts, but failed to warn Mazzei. The court absolved the defendant gin owner of liability, holding that the owner of the premises is not an insurer, but owes a duty of ordinary care to see that the premises are reasonably safe and to warn the invitee of any dangers of which he has knowledge and which are not readily apparent to the eye. The owner of the premises, however, is under no such duty where the dangers are obvious or as well known to the invitee as to the owner of the premises, and there is no obligation on the part of the owner of the premises to give warning of an obvious danger or one which should have been perceived by the invitee through ordinary use of his own senses.

We believe the rule announced in the Mazzei case with respect to the duties owed by the owner of premises to chattels in possession of a business invitee is too broadly stated for general application. It seems to us that the chattels in possession of the invitee to which the duty is owed should bear some relation to the invitation, and that the owner of premises should not be held accountable for the safety of all chattels in the possession of an invitee, particularly where the chattels in question are found to consist of items not usually found in the possession of the class of invitees to which the plaintiff belongs. Under the facts of the Mazzei case, the chattel was cotton, and it was an item most business invitees on the premises of that particular defendant were likely to have in their possession. In addition, the owner of the premises knew that his invitee had thirty bales of cotton in his possession and knew that the hoist of the truck on which the cotton was being carried was higher than the overhead wires crossing the road on which the truck would travel.

The responsibility of common carriers of passengers for the safe transportation of their luggage is, in general, the same as that of carriers in respect to merchandise which they receive for carriage, but the carrier’s implied undertaking of safety with respect to a passenger’s baggage is not unlimited, and extends only to such kinds and quantity of articles and valuables as are ordinarily taken by travelers for their personal use and convenience, varying according to the station of the party, the object and length of his journey, and many other circumstances. Sutherland on Damages, Vol. 3, Third Ed., Sec. 954, p. 2811.

Subject to the limitation that the owner of the premises either knows what chattels the invitee has in his possession, or the chattels are of such nature, quantity and value as would ordinarily be found in the possession of an invitee of the same class under same or similar circumstances, we announce the rule “that the master’s duty to chattels (not used in the employment) in possession of a servant on the master’s premises in the scope of the employment is the same as the duty that the owner or possessor of similar premises owes to a business invitee against the risk of bodily harm.”

We have concluded that appellees are barred from any recovery, under the facts of this case, regardless of whether the duties allegedly owed by appellant with respect to the chattels of appellees be found to rest solely upon a master-servant relationship between the parties, or solely upon a landlord-tenant relationship; or, upon a finding that both such relationships existed simultaneously under the employment agreement. We have already discussed our ■reasons for holding that appellees cannot recover under the theory of the existence of a landlord-tenant relationship.

The Workmen’s Compensation Act (Art. 8305 et seq., Vernon’s Ann.Civ.St. Tex.) has no application here, since the law does not afford a workman the same certainty of protection against injury to his chattels that is afforded such workman under the Act against bodily harm. In such case, where legislation has not abolished the defense of assumed risk, the common law rule still prevails in the master-servant relationship.

In this case the appellees contend that they had to live on the premises on a 24-hour a day basis to look after the appellant’s drive-in theatre. It is suggested that they were required to occupy appellant’s tower apartment and the site on which they placed their trailer and other personal property, in order to perform the obligations imposed upon them under the terms of the contract of employment. On this point we believe the holding of the Supreme Court of Texas in the case of Robert E. McKee, General Contractor, v. Patterson, 153 Tex. 517, 271 S.W.2d 391, is directly in point.

In the McKee case the court pointed out that while the duty of the landowner is frequently phrased as one “to exercise ordinary care to keep the premises in a reasonably safe condition” so that the invitee will not be injured, such is only a simplified statement of the duty, sufficient to meet the problems presented in particular cases. The court continued as follows:

“There are certain qualifications nof there expressed. It is now well established in this state that the duty as there expressed does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate or should appreciate its dangers. * * * (citing cases). What the qualification means, of course, is that in as much as the invitee has knowledge of the dangers there is no duty on the owner to warn him of them. It means also that if, having knowledge of the dangers, the invitee exposes himself to them he must take the premises as he finds them and there is no duty on the owner to protect him even by the use of reasonable precautions to eliminate the hazards.”

It is now settled law in Texas that in determining liability under the defense of voluntary exposure to risk, one cannot recover for injures sustained while voluntarily exposing himself (or his property) to a danger which he either does or should fully realize and appreciate. 38 Am.Jur. 845 et seq., Negligence, Secs. 171-173; Levlon v. Dallas Ry. & Terminal Co. (Tex.Civ.App.), 117 S.W.2d 876 (wr. ref.); Wood v. Kane Boiler Works, Inc., 150 Tex. 191, 238 S.W.2d 172; Robert E. McKee, General Contractor, v. Patterson, 153 Tex. 517, 271 S.W.2d 391.

Under the facts of this case as found by the trial court, appellees had knowledge of the dangers existing on appellant’s premises. The evidence is undisputed that the dangers were open and obvious and the facts show that appellees voluntarily encountered them. We therefore hold that appellant breached no duty it owed to appellees and that appellees are barred, as a matter of law, from any recovery under the facts of this case. Further, we hold that appellees were guilty of contributory negligence, as a matter of law, in failing to remove their property' — if not from the premises entirely, at least from the tower apartment and the vicinity of the tower structure — after having discovered the defect in the electrical wiring therein which they knew or should have known might ignite the structure and destroy their property. Appellees were at all times in as good or better position than appellant to avoid the danger and protect their property. We also hold, as a matter of law, that there was no duty under the undisputed facts of this case requiring appellant to furnish additional fire-fighting facilities for the purpose of combating fire on the premises. We therefore sustain appellant’s Points One, Two, Three, Four and Five.

In view of our holdings, we consider it unnecessary to pass upon the question of values found by the trial court to exist with respect to certain “irreplaceable goods and chattels” allegedly destroyed by the fire.

Since our holdings sustaining appellant’s first five points is decisive on the question of liability, it makes a discussion of appellant’s remaining points unnecessary.

Having held that there was no liability on the part of the appellant, it follows that this case must be reversed and here rendered, and it is so ordered.


source: Caselaw Access Project

author: DIXON, Chief Justice. YOUNG, Justice

license: Public Domain

text:
    CITY OF DALLAS et al., Petitioners, v. Daniel C. BROWN et al., Respondents.
    No. 16193.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 24, 1962.
    Rehearing Denied Nov. 23, 1962.

      H. P. Kucera, City Atty., N. Alex Bickley, Asst. City Atty., Dallas, Will Wilson, Atty. Gen., Austin, McCall, Parkhurst, Crowe, McCall & Horton, Ritchie, Ritchie & Cros-land, and Carrington, Johnson & Stephens, Dallas, for petitioners.
    James P. Donovan, Dallas, pro se and for respondents.
   DIXON, Chief Justice.

City of Dallas, together with certain of its officials and other interested parties, Petitioners, seeks a writ of prohibition and ancillary orders against James P. Donovan and about 200 of his clients, Respondents, to prohibit Respondents from further prosecuting Civil Action No. 9276, styled Brown, et al. v. City of Dallas et al., now pending in the United States District Court for the Northern District of Texas, Dallas Division.

Petitioners allege that the issues which Respondents present in their suit in the United States District Court are the same issues involving the same subject matter that have been previously adjudicated by this Court in the case of Atkinson et al. v. City of Dallas, Tex.Civ.App., 353 S.W.2d 275; and that the writ of prohibition is necessary to protect the previous judgment of this Court and its enforcement and execution.

The record discloses events leading up to or connected with Petitioners’ application as follows:

1. On April 3, 1961 George S. Atkinson and others, owners of property near Love Field, a municipal airport located in the City of Dallas filed a class suit in the District Court of the State of Texas to restrain the City of Dallas from the construction of a runway at the airport. The suit also attacked the validity of certain revenue bonds which the City was about to issue to finance construction of the runway.

2. On July 17, 1961 a summary judgment was rendered in favor of the City denying the permanent injunction sought by the Plaintiffs.

3. On December 15, 1961 this Court on the appeal of the case, affirmed the above summary judgment. Motion for rehearing was overruled on January 19, 1962. A detailed statement of the points urged on the appeal will be found in 353 S.W.2d 275.

4. On March 14, 1962 the Supreme Court of Texas denied a writ of error in the case with the notation “no reversible error”, and announced that a motion for rehearing would not be entertained.

5. On June 25, 1962 the Supreme Court of the United States denied a writ of certiorari in the case, Atkinson v. City of Dallas, 370 U.S. 939, 82 S.Ct. 1587, 8 L.Ed. 2d 808, and on October 8, 1962, 83 S.Ct. 18 overruled a motion for rehearing'. Thus the judgment of this Court of December 15, 1961 affirming the summary judgment of the trial court became final for all purposes, and the issues decided in our judgment of affirmance became res judicata.

6. On September 24, 1962 Respondents herein filed Civil Action No. 9276, styled Brown et al. v. City of Dallas et ah, in the United States District Court. By this suit they seek a permanent injunction against the City, to restrain the City from building the runway and from issuing certain revenue bonds. They do not seek a temporary injunction, and none has been granted. Thirty of the plaintiffs in the United States District Court are the same persons who were plaintiff in the original suit filed April 3, 1961 in a District Court of Dallas County. Other plaintiffs, all alleged to be property owners, were added in the United States District Court.

7. On October 2, 1962 the City of Dallas filed the application for writ of prohibition which is now before us for decision. The City asserts that the suit in the United States District Court is merely an attempt to relitigate the issues which were adjudicated in our judgment of affirmance of December 15, 1961.

8. On October 6, 1962 Respondents filed an application in the United States District Court seeking to enjoin this Court from further considering or acting on the City’s application for a writ of prohibition.

9. On October 10, 1962 the United States District Court dismissed Respondents’ application for injunction to restrain this Court from further considering the City’s application for a writ of prohibition.

Are the issues raised in the Civil Action No. 9276, styled Brown et al. v. City of Dallas et al. filed September 24, 1962 in the United States District Court the same as the issues adjudicated in our judgment of affirmance of December 15, 1961, which judgment became final when the Supreme Court of the United States on October 8, 1962 overruled a motion for rehearing? Petitioners contend that the issues are the same. Respondents contend that they are not the same.

After a careful consideration of the whole record a majority of our Court have concluded that it is not necessary for us to answer the above question in order to decide whether to grant or refuse the writ of prohibition sought by Petitioners. For it is our opinion that regardless of whether the issues are the same, there are other considerations which should and do cause us to decide that the writ ought to be refused.

Under Art. 1823, Vernon’s Ann. Civ.St. we are given authority to issue writs of mandamus and other writs only when necessary to protect our jurisdiction. State Farm Mutual Automobile Ins. Co. v. Worley, Tex.Civ.App., 346 S.W.2d 407, 409. The pendency of Action No. 9276 in the United States District Court does not invade our exclusive jurisdiction, though the issues in the suit may be the same as the issues decided in our judgment of affirmance. Ours is not the only Court which has jurisdiction to enforce a plea of res judicata in support of our judgment of affirmance of December 15, 1961. That defense may be and has been pled by the City in Action 9276 in the United States District Court, and that Court has jurisdiction to hear and give effect to the plea.

Petitioners contend in effect our jurisdiction is invaded because Respondents have filed a suit in another Court in which Respondents try to ignore the finality of our judgment. And Petitioners further contend that the only way our jurisdiction can be protected and respected is by the issuance of a writ of prohibition restraining the litigants from further prosecuting their suit in the other Court where it is now pending.

We do not agree to such contention. To agree would be equivalent to hold that the conclusiveness of a judgment could never be determined except by the Court that rendered it.

In a situation similar in most respects to the situation now before us our Supreme Court took note of the difference between an invasion of a court’s jurisdiction and the mere filing of a suit in disregard of a prior judgment. We quote from the opinion by Justice Nelson Phillips in Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577:

“ * * * to disregard a judgment through the institution of a suit is not necessarily to obstruct its operation. True it may draw the judgment into question through the denial of its effect, and the judgment may be so conclusive as to render the suit a groundless one; but the jurisdiction of the court is not invaded by the mere assertion of rights through such method, even in contravention of the judgment, so long as its operation is left unimpeded. If a court should entertain such a suit, and through want of jurisdiction or failure to accord to the judgment its legal effect render an erroneous decree, the remedy provided by our system for its revision and the read judication, if needs be, of the conclusiveness of the judgment, is an appeal. (emphasis ours)
“We are not insensible to the hardship that such cases may sometimes impose, nor to the forcible argument of the able counsel for relators that litigation in relation to this estate, so prolonged as its history discloses, should end; but such considerations afford in themselves no ground for the closing of the doors of the courts to suits, however ill founded, brought in evident good faith. * * *
“The power of a court to enforce its jurisdiction does not include an authority to prevent the prosecution of any suit to which a judgment of the court may be an effectual bar, but which, beyond presenting an issue as to the conclusiveness of the judgment upon the asserted cause of action, makes no attempt to disturb it, or to interfere with its execution or the exercise of rights established by it, as such a suit does not conflict with the exercise of that power which constitutes jurisdiction in the court, the power to hear and determine the cause and enforce the judgment rendered, and therefore does not violate its jurisdiction. The assumption of such right would invest a court not merely with the control of its own judgments and authority to enforce its jurisdiction, but with a further power to govern other courts in the exercise of their lawful jurisdiction; and the result would be that the issue of the conclusiveness of a judgment upon what is urged as a distinct cause of action could never be determined except by the court that rendered it." (emphasis ours)

The Supreme Court went on to say that the cases of Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224, and Conley v. Anderson, 106 Tex. 265, 164 S.W. 985 are not in opposition to the above expressed view. In both of them the suits which were prohibited, directly attempted to obstruct the execution of the judgments of the Supreme Court. In our opinion the same thing may be said of Cattlemen’s Trust Co. of Ft. Worth v. Willis, Tex.Civ.App., 179 S.W. 1115.

In the instant case the United States District Court has done nothing to repudiate our judgment of affirmance; and we shall not assume that it will do any such thing. To the contrary we must assume that the United States District Court will give full effect to our judgment by sustaining a plea of res judicata if the issues before it should prove to be the same issues which we previously adjudicated. State Farm Mutual Automobile Ins. Co. v. Worley, Tex.Civ.App., 346 S.W.2d 407, 409.

In the above case it was further held that a writ of prohibition will not be granted where there is an adequate remedy at law, such as an appeal. This holding was in keeping with the holding of our Supreme Court in Milam County Oil Mill Co. v. Bass, supra, wherein it was held, that “if a court should entertain such a suit, and * * * render an erroneous decree, the remedy * * ⅜ is an appeal.” See also Clark v. Ewing, Tex.Civ.App., 196 S.W.2d 53, 55.

Petitioners in the instant case allege that to pursue this cáuse in the United States District Court would involve hardships due to delay incident to a probable appeal by Respondents to the Circuit Court of Appeals and thereafter an attempt to obtain a writ of certiorari from the Supreme Court of the United States. While such proceedings are pending, delivery of the revenue bonds will be held up, for bond buyers will not purchase bonds while legal proceedings involving the bonds are pending. This may be true, but as stated in the Milam County case, consideration of hardships do not afford grounds for the closing of the doors to suits, however ill founded, brought in good faith.

It is with regret that the majority of our court feel impelled under the circumstances to decline to order the writ of prohibition to issue. But our duty as we see it is to refuse Petitioners’ application.

Petitioners’ application for a writ of prohibition is refused.

YOUNG, J., dissents.

YOUNG, Justice

(dissenting).

In my opinion, the writ of prohibition, pursuant to Art. 1823, V.A.C.S., should issue on the City’s plea of res judicata — the validity of Love Field Revenue Bonds having already been established in the Atkinson suit by final judgment of this Court and confirmed both by the Supreme Court of Texas and the United States Supreme' Court. “The doctrine of ‘res adjudicata', or estoppel by reason of a former judgment, rests upon the principle that a cause of action which has been once determined' upon its merits by a competent tribunal,, between parties over whom that tribunal; had jurisdiction, cannot afterwards be litigated by them in another proceeding, either in the same or different tribunal, * * 24 Words and Phrases, Perm. Ed., “Res, Adjudicata”, p. 146.

Of these Revenue Bonds, Series No. 395 in amount of Eight Million Dollars were involved in the Atkinson case which could not be sold and delivered by reason of that litigation. On final adjudication of the Atkinson case as recited in the majority opinion, the City then continued a financing of the construction of the Love Field Runway by issuance of the same General Revenue Bonds, Series No. 401, but in the lesser amount of Five Million Dollars, to be sold September 24, 1962, on which date the Respondents filed another Civil Action in Federal Court, No. 9276, styled Daniel C. Brown et al. v. City of Dallas et al., again seeking permanent injunction against the sale of these bonds. No temporary injunction was sought and none was necessary, for, due to the unique nature of bonds and bond issues the mere filing of suit in Federal Court would have that effect.

Courts of Civil Appeals may protect its jurisdiction by writ of prohibition or injunction against maintenance by defendants to the judgment of a suit in another tribunal attacking the validity of the original judgment or seeking to enjoin its execution. See Long v. Martin, 116 Tex. 135, 287 S.W. 494. Does Respondents’ suit in the Federal Court have this emphasized effect? It undoubtedly does.

Our Supreme Court of course, recognizes the doctrine of res adjudicata and has permitted this prohibitory writ to issue in all instances where the operation of the prior judgment or its execution has been directly interfere!? with, but not so (as in City and County oi Dallas v. Cramer, Judge, Tex. Civ.App., 207 S.W.2d 918) where “Relator would be left undisturbed, except by the annoyance of the suit, in the full enjoyment of the rights secured by the judgment of this court.” Obviously the case of Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, was of the latter class; the Supreme Court stating that the cause of action there asserted “makes no attempt to disturb it (the prior judgment) or to interfere with its execution or the exercise of rights established by it.”

Judge Phillips further states in Milam 'County Oil Mill Co. v. Bass, supra, that: “The power to enforce its judgments necessarily inheres in a court as an essential attribute of its jurisdiction, but there is a manifest difference between the enforcement of a judgment and the prevention of a suit which makes no attempt to obstruct its execution, but denies its conclusiveness upon what is alleged to be another cause ■of action. * * * The jurisdiction of the ■court is not invaded by the mere assertion of rights through such method, even in ■contravention of the judgment, so long as its operation is left unimpeded. * ⅜ ⅜ ”, (emphasis mine) And in Houston Oil Mill Co. of Texas et al. v. Village Mills Co. et al., 123 Tex. 253, 71 S.W.2d 1087 the Supreme Court, referring to Milam County Oil Mill Co. v. Bass, supra, stated: “In that case it is by no means clear that the judgment sought in the Hill County suit, the second suit, would directly interfere with the operation of the prior judgment ■of this court.”

The majority does not and cannot say that this second suit of Brown et al. v. City of Dallas et al., is not a renewal of the litigation foreclosed in the Atkinson case, the mere filing of which constitutes such a ■cloud upon the title to these general Revenue Bond issues as to preclude their sale. In the situation thus presented, the majority merely begs the question by their negative ruling on the application for writ of prohibition; concluding as they do that a plea of res adjudicata can as well be sustained by the Federal District Court, and such indeed may be the ruling of Judge Sarah T. Hughes. Even so, the door will be opened for full scale relitigation of the validity of these bonds in another trial court, on through the United States Circuit Court of Appeals and again to the Supreme Court of the United States. On the other hand a grant of the relief prayed for by the City of Dallas will finally terminate this prolonged litigation, save for a possible appeal to the Supreme Court of Texas.

The legal maxim of “justice delayed is justice denied” is truly relevant to the adjudicated rights of Petitioner City of Dallas.


author: WILLIAMS, Justice.

text:
    G. O. GREEN, Appellant, v. Albion A. EVANS et ux., Appellees.
    No. 16039.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 26, 1962.
    Rehearing Denied Nov. 16, 1962.

      Ross Huffmaster, Kaufman, Jesse Rick-man, Terrell, for appellant.
    Wayne Pearson, Dallas, for appellees.
   WILLIAMS, Justice.

Appeal by G. O. Green from a judgment based upon a jury verdict rendered on a suit brought by Albion A. Evans to recover damages to his automobile caused by a collision with a cow owned by Green.

Evans alleged that about 7:35 P.M. on April 16, 1960 he and his wife were traveling in their automobile along State Farm Road #987 in Kaufman County, Texas when a cow owned by Green ran across the road and struck the front of the vehicle, resulting in damages thereto. Various acts of negligence were alleged by plaintiff. It was first charged that defendant was guilty of negligence in that he violated Art. 1370' of the Penal Code of the State of Texas, Vernon’s Ann.Civ.St. art. 1370, by knowingly permitting his cattle to run at large. In addition, plaintiff alleged that defendant had failed to maintain adequate fences and gates to confine his cattle and that such failure was negligence and a proximate cause of the damage to plaintiffs’ automobile. Defendant answered with a general denial and cross-action for damages caused by the loss of his cow.

The court submitted the case to the jury on special issues, Issue No. 1 being “Do you find from a preponderance of the evidence that the defendant failed to maintain an adequate enclosure to keep said cattle enclosed on defendant’s own property on April 16, 1960?” The jury answered affirmatively ; then finding such failure to be negligence which was a proximate cause of the collision. No issue was submitted to the jury on the alleged statutory violation charged by plaintiff. The jury then acquitted plaintiff and his wife from any contributory negligence and found that the accident was not the result of an unavoidable accident.

By appellant’s first two points complaint is made of admission into evidence of various minutes and orders of the Commissioner’s Court of Kaufman County, Texas relating to the adoption of a local stock law prohibiting cattle to run at large in Kaufman County. These instruments were obviously introduced by appellees in an effort to establish that Kaufman County had adopted a stock law which was in effect where this accident occurred, thereby supporting appellees’ allegation of violation of Art. 1370 of the Penal Code. Appellant’s Bill of Exception reflects that objection was made to the admission of the various instruments showing the establishment of the stock law in Kaufman County upon the grounds that no proclamation had been issued by the County Judge declaring the result of the election held to establish the stock law. Assuming, without deciding that it was error to admit the documentary evidence concerning compliance with the stock law, such error is not shown to have probably resulted in the rendition of an improper verdict and therefore harmless. Rule 434, Texas Rules Civil Procedure. The only issue submitted to the jury concerning defendant’s liability was one based upon common law liability. Accordingly, the admitted testimony which could only have a bearing upon statutory violation could result in no prejudice to appellant since no such issue was submitted to the jury. Appellant’s first and second points are overruled.

By his third point on appeal, appellant complains of the failure of the trial judge to instruct the jury how to answer the issue on unavoidable accidents following the receipt of an inquiry from the jury concerning such issue. The record reveals that the court’s submitted special issue to the jury was as follows: “Do you find from a preponderance of the evidence that the accident in question was not an unavoidable accident ?

“You are instructed that in the event your finding in response to the above issue is in the affirmative, the form of your answer should be, ‘it was not an unavoidable accident’, and that otherwise your answer should be, ‘no’.” The jury answered this issue “Yes, it was not an unavoidable accident.”

During the deliberation of the jury a written message was delivered to the court from the jury, reading as follows: “We agree that the accident was unavoidable. We do not like the construction of the question which contains a double negative.” In response the court wrote the jury the following: “You must consider the charge as submitted.”

Appellant contends that upon receipt of the inquiry from the jury indicating that they had agreed that the accident was unavoidable that it was then encumbent upon the court to instruct the jury that the question should be answered “It was an unavoidable accident.” With this contention we cannot agree.

In the first place the record fails to reveal that the appellant made any objection in writing to the method of submission of special Issue No. 4. Not having objected timely as required by the rules, any objection thereto was waived. Rule 272, T.R.C.P. While it is true that Rule 286, T. R.C.P. provides that the court may, in proper manner, give further and additional instructions to the jury after their retirement, no such compliance with this rule is demonstrated by the record. The record does not reveal that appellant requested the court to give any additional instruction, as is now urged on appeal for the first time. Neither does the record indicate that appellant objected in any manner to the answer the court did give to the jury in which he merely reiterated that they must consider the charge as submitted. The method of submission of the unavoidable issue was approved in Pageway Coaches, Inc. v. Bransford, Tex.Civ.App., 71 S.W.2d 561. Appellant’s third point is overruled.

By his point four appellant contends that the court erred in not instructing the jury to return a verdict for the defendant for the reason that there is no evidence that the defendant Green knowingly permitted any animal to run at large. This point is without merit and must be overruled for several reasons.

In the first place the record fails to disclose any written motion for instructed verdict by the defendant containing specific grounds therefor. The only indication in the record concerning such a motion is a docket entry merely reciting that defendant’s motion for instructed verdict is overruled and defendant excepts. The motion itself is not contained in the record. Rule 268, T.R.C.P. provides that a motion for directed verdict shall state specific grounds therefor. Not having complied with the Rule defendant’s point is not well taken. Routte v. Guarino, Tex.Civ.App., 216 S.W.2d 607.

Furthermore, it is to be observed that by the wording of appellant’s point that emphasis is placed upon the proposition that there is no evidence that defendant “knowingly” permitted his cattle to roam at large. This would indicate that the basis of appellant’s contention is that ap-pellee wholly failed to establish the necessary elements of a criminal violation as-pled by appellee. The complete answer to-this contention is, as pointed out in a preceding point, that the court did not submit the case to the jury on the theory of violation of a criminal statute. This phase of the case was completely eliminated. The matter was submitted to the jury on common law negligence only. Since this case-falls clearly within the ambit of the common law tort it was not necessary for ap-pellee to assume the burden of demonstrating criminal intent on the part of appellant or that he “knowingly" permitted the cattle to roam at large.

Even so, we have carefully examined the entire record in this case and' we find ample evidence concerning the issue-of appellant’s enclosures, gates and fences being insufficient to contain the cattle on his land. In testing the question of failure to grant an instructed verdict it is only necessary to show some evidence of probative force in support of the issue. Here,, we find a great deal of testimony concerning the inadequacy of the enclosure and’ therefore the trial court would have been justified in overruling a motion for instructed verdict, properly prepared and presented, based upon a “no evidence” contention. Appellant’s fourth point is overruled.

In his fifth and last point appellant contends that the court erred in permitting-the witness C. L. Davis to testify that one of defendant’s cows was killed sometime following the incident in question. During' the trial, the witness C. L. Davis, called by-appellee, testified as follows :

“Q Do you know whether or not about two weeks after this Mr. Green got another cow run over in the same road? You know that don’t you?
“A Yeah.
MR. RICKMAN: “Your Honor, at this time we want to object and ask for a mistrial, please sir.”

After considerable discussion outside of the presence of the jury the court recalled the jury and instructed them as follows: “Ladies and Gentlemen of the Jury: I am instructing you not to consider the question and answer that Mr. Pearson just asked and the answer given just before you left the courtroom.”

The court sustained the objection to the admissibility of such testimony and instructed the jury not to consider the same for any purpose. We cannot say that the jury disregarded the instruction of the court.

Appellant’s fifth point is overruled.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Mrs. Lorraine BROWN and Sharon Brown, Appellants, v. Norman A. LEE, Independent Executor of the Estate of Mrs. Norman A. (Marie) Lee, Deceased et al., Appellees.
    No. 4045.
    Court of Civil Appeals of Texas. Waco.
    Nov. 1, 1962.
    Rehearing Denied Nov. 21, 1962.

      Fanning, Billings, Harper, Pierce & Gil-ley, Turner, Rodgers, Winn, Scurlock & Terry, John H. McElhaney, Dallas, for appellants.
    Knox W. Sherrill, John W. Collins, Jr., O. O. Touchstone and John B. Webster, Dallas, for appellee.
   WILSON, Justice.

Insured and his wife, who was the life insurance beneficiary, died intestate and without children in a common disaster. Admittedly, there is no evidence they died otherwise than simultaneously. The policies on the husband's life were purchased with community funds.

The administrator of the estate of insured and his wife listed one-half of the proceeds of the life insurance policies as an asset of each estate in the inventory and list of claims filed in the probate court. On motion of the husband’s heirs the probate court ordered that the entire proceeds be inventoried as an asset of the husband’s estate, with only one-half the surrender values to be listed in the inventory of the wife’s estate. The district court, on appeal, ordered the inventory relating to proceeds approved as originally filed, reciting that ownership and title were vested one-half in each estate. The husband’s heirs appeal.

Appellants contend the courts below were without jurisdiction to deal with the inventory, since determination of title, beyond the jurisdiction of the probate court, was involved. Neither the probate court, nor the district court on appeal, could change the ownership of property “by simply approving an inventory and appraisement to that effect.” Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532; nor did they have power to determine title to the proceeds. Edwards’ Heirs v. Mounts, 61 Tex. 398, 399. But in approval or modification of the inventory, questions of title were only incidentally involved. The inventory is not conclusive of title, and is only prima facie evidence thereof; and the order of the probate court was appealable. Krueger v. Williams, Tex., 359 S.W.2d 48, 50. Under the latter decision we are required to determine whether the probate court correctly modified the inventory and appraisement.

Appellants contend that Probate Code, Section 47(e), V.A.T.S. requires the proceeds to be inventoried in the husband’s estate. This section provides: “When the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.”

Appellees say the inventory is controlled by Section 47(b) of the Probate Code: “Disposal of Community Property. When a husband and wife have died, leaving community property, and there is no direct evidence that they have died otherwise than simultaneously, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived, * * Recognizing the literal import of Section 47(e) is that there is no distinction to be made between community and other property, appellees urge us to engraft a limitation on its application to separate property or to situations in which persons other than a spouse are beneficiaries. We may not so construe Sec. 47(e) for the reason, among others, that there is an express exception in Sec. 47(b) on its application to insurance proceeds under Sec. 47(e): Community property is to be distributed as provided in subsection (b) of Sec. 47, “except as provided in Subsection (e) of this Section.”

Section 47 of the Probate Code, Acts 1955, has its source in Acts 1951, 52nd Leg1., p. 322, ch. 196 (previously codified as Art. 2583a). The basic source of the latter enactment was the Uniform Simultaneous Death Act, 9c Uniform Laws Ann., 160, 1940 Handbook 265, approved by the National Conference of Commissioners in 1940. The Commissioners’ note prefatory to the act stated the theory and formula of the Uniform Act was a simple one: “that as to the property of each person he is presumed to be the survivor”. Id. p. 158. At the time of the adoption of the 1951 Act there was no reported judicial decision construing the sections of the Uniform Act equivalent to the Texas provisions with which we are concerned.

In 1953, on facts arising before Art. 2583a became effective, the Supreme Court decided Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, in which it was impossible to determine whether the insured husband or the beneficiary wife died first in a common disaster. It was there held that where facts as to survivorship could not be proved, and since there was no applicable presumption, the proceeds were community property by virtue of Art. 4619, Vernon’s Ann. Texas Civ.St., providing that effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects, unless the contrary shall be satisfactorily proved.

A subsequent decision, Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, 1956, in which the insured husband survived the beneficiary wife a brief time, distinguished Sherman v. Roe on the ground the proceeds were not effects “possessed” by husband and wife when the marriage was dissolved, under Art. 4619. The husband’s estate was alternate beneficiary. The holding relating to whether the policy and proceeds were “property” led to the amendment of Art. 23, V.A.T.S. in 1957 to include “life insurance policies and the effects thereof” in the definition of “property”. The holding or necessary implication in the decision is that no constructive fraud resulted from the fact that the husband’s estate became beneficiary because of the prior death of the wife, as was the case in Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904. It was held the wife’s estate was not entitled to reimbursement. See Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 570.

In our opinion the interpretation given to Secs. 47(b) and 47(e) of the Probate Code in In re Wedemeyer’s Estate, 109 Cal.App.2d 67, 240 P.2d 8, 1952, is sound. We agree also with the conclusion there that the character of the property was not changed by the fact the proceeds had to be distributed in the husband’s estate; that the persons who are to succeed are not designated in Secs. 47(b) and 47(e), which “do not purport to do anything but solve the difficulty” caused by simultaneous death “by providing who for purposes of distribution, is considered to have died first.” At that point California applied its community property succession statute, for which there is no Texas counterpart, so that one-half of the proceeds went to the heirs of each spouse.

At that same point, we apply the rule quoted from Lee v. Lee, 112 Tex. 392, 247 S.W. 828 in Sherman v. Roe: the insured here, by force of the presumption created by Sec. 47(e) having survived his wife, the deceased is in the position of one who designated no beneficiary under policies paid for with community funds, and thereby “having failed to designate any beneficiary, the benefits became vested in his estate, subject to the laws applicable to that estate. And this ‘estate’ must be construed to be the general or community estate of which he is head and master, and not his separate estate.” No alternate beneficiary having been designated, (other than the insured’s estate) and the proceeds becoming thereby payable to the estate as community, may the insured do voluntarily what he may not do involuntarily ?

In Sherman v. Roe the further rule was quoted and applied: “The courts of this State have held that proceeds of a life insurance policy taken out by the husband and payable to the estate of the' decedent, the premiums of which were paid for with community property belonging to the community estate, are one-half the property of the wife, and that said part is no part of the estate of the husband.”

It is no more possible to prove the husband survived the wife in the present case than in the latter case. The presumption afforded by Sec. 47(e) if applied in this case to the deaths of husband and wife makes the policy payable to the estate of the husband. As said in Sherman v. Roe, “If it is so regarded, then under the rule above quoted the proceeds of the policy are community property.”

If it be said the practical effect of Rule 47(e) is for the husband to name his estate alternate beneficiary, which must be the alternative conclusion, “The effect of awarding all of the proceeds to the separate estate of the husband would be to hold that he can give his wife’s interest to himself,” thereby enlarging his estate at the expense of the community. Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, 399; Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904, 906.

It is significant that the Commissioners’ comment on In re Wedemeyer’s Estate, 1953 Handbook p. 251 concludes the “result” in that case is considered correct; that distribution should be made as if the insured had survived, “and that the distribution should be as community property of the insured and the beneficiary.” It is there also said Section 47(e) “does not change the character of ownership of the policy and does not change the law of succession to community property.” The premise upon which In re Saunders’ Estate, 51 Wash.2d 274, 317 P.2d 528, 1957, is based is not consistent with Texas law.

Under the stipulation and admissions of the parties, and the record presented, our holding here is likewise applicable to the payment made by Provident Life and Accident Insurance Company.

Our opinion as to the construction, application and interpretation to be given Sec. 47(e) is expressly limited to the facts of this case concerning spouses, and policies on which premiums were paid by community funds. The present contracts provided payment should be made to the insured’s estate if the beneficiary did not survive.

In our opinion the judgment of the District Court correctly determined that the inventory relating to the proceeds here involved should be approved as filed. Since the judgment goes beyond that point, it is modified so as to delete the second from last grammatical paragraph thereof, and recitals as to ownership and title; and to substitute therefor our judgment: it is ordered that the inventory be approved as filed, as it relates to $50,822 community claims under contracts therein listed. The District Clerk is directed to certify our judgment to the probate court for observance.

      . In 1953 the National Conference of Commissioners on Uniform State Laws adopted a suggested amendment to the section of the Uniform Simultaneous Death Act to add to what is Texas Probate Code, Sec. 47(e): “except if the policy is community property of the insured and his spouse, and there is no alternative beneficiary except the estate or personal representative of the insured, the proceeds shall be distributed as community property”, under what is Texas Probate Code Sec. 47 (b). The comment, 1953 Handbook p. 251, states this amendment is proposed to meet the suggestion of the dissent in In re 'Wedemeyer’s Estate to the effect that if it intended other than a literal application of the equivalent of Sec. 47 (e) the Legislature could have omitted the exception in Sec. 47(b), or “tacked it on” to Sec. 47(e), so as to indicate life insurance with community characteristics should be distributed as other community property.


author: CHADICK, Chief Justice.

text:
    GLENS FALLS INSURANCE COMPANY, Appellant, v. L. Fried MANNING, Appellee.
    No. 7444.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1962.
    Rehearing Denied Dec. 11, 1962.
    Ramey, Brelsford, Hull & Flock, Tyler, for appellant.
    Howard A. Carney, Carney & Mays, Atlanta, for appellee,
   CHADICK, Chief Justice.

This is a suit to collect medical payments under the provisions of an insurance policy. The judgment of the trial court awarding a recovery is modified, and as modified, affirmed.

On November 19, 1957, Glens Falls Insurance Company issued its Comprehensive Personal Liability Policy No. CP-373136, effective for a period of one year from date, naming therein Lemle Fried Manning as insured. Thereafter on November 19, 1958, it issued and delivered to the insured a renewal rider for Attachment to the policy renewing the policy for a period ending November 19, 1959. Concurrent with this renewal rider it also issued another rider, Form G 522a, effective on and after November 19, 1958, for attachment to the policy; this second rider was labeled Amendment of Comprehensive Personal Liability Policy.

In February of 1959 the mother-in-law of the insured, Mrs. E. C. McKinnon, while a guest on his premises, had the misfortune to fall and fracture her hip. In the year following the mishap medical expense of the nature described in the insurance policy under Coverage B — Medical Payment totalling $2,162.82 was incurred in the treatment of Mrs. McKinnon’s injury.

The basic issue between the parties in the trial court, as well as here, is whether of not the policy contains a limitation upon the amount of medical expense the insurance company is liable to pay within one year from the date of Mrs. McKinnon’s injury. The primary policy and the rider mentioned contain the following provisions pertinent to the issue in this case, to-wit:

“GLENS FALLS INSURANCE COMPANY Glens Falls, N. Y.
(A stock insurance company, herein called the company)
“Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of the policy:
“INSURING AGREEMENTS
“1. Coverage A — Liability
“Coverage B — Medical Payments
“To pay all reasonable expenses incurred within one year from the date’ of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident,
“(1) while on the premises with the permission of an insured, or
(2) while elsewhere if such injury, sickness or disease (a) arises out of the premises or a condition in the ways immediately adjoining, (b) is caused by the activities of an insured, (c) is caused by the activities of or is sustained by a residence employee while engaged in the employment of an insured, or (d) is caused by an animal owned by or in the care of an insured.
* * *
“DECLARATIONS
“Item 1. * * *
“Item 2. * * *
“Item 3. The limit of the company’s liability against each coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.
a * * *
“11. Changes. ****** j nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy.”
* * *
“G 522a
“AMENDMENT OF COMPREHENSIVE PERSONAL LIABILITY POLICY
“ It is agreed that the policy is amended as follows:
«<1, * * *
“2. Coverage B — Medical Payments is replaced by the following:
Coverage B — Medical Payments: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident,
“(1) while on the premises with the permission of an insured, or
“(2) while elsewhere if such injury, sickness or disease (a) arises out of the premises or a condition in the ways immediately adjoining, (b) is caused by the activities of an insured, (c) is caused by the activities of or is sustained by a residence employee and arises out of and in the course of his employment by an insured, or (d) is caused by an animal owned by or in the care of an insured.’’

A rider attached to an insurance policy, as a general rule, merges into the insurance policy to which it is attached. Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 8 Tex.Civ.App. 227, 28 S.W. 1027; American Fire Ins. Co. v. First Nat. Bank et al., Tex.Civ.App., 30 S.W. 384; Home Ins. Co. of New Orleans v. Cary, 10 Tex.Civ.App. 300, 31 S.W. 321; American Fire Ins. Co. v. Center, Tex.Civ.App., 33 S.W. 554; Allred v. Hartford Fire Ins. Co., Tex.Civ.App., 37 S.W. 95; City Drug Store v. Scottish Union & National Ins. Co., Tex.Civ.App., 44 S.W. 21; American Fidelity & Casualty Co., Inc. v. Bayshore Bus Lines, Inc., 5 Cir., 201 F.2d 148; 1 Couch on Insurance 2d, Sec. 4:24. In seeking the true scope of the entire insurance agreement, and in order to give effect to the intentions of the parties, courts ofttimes give a rider special significance and controlling effect, as when the rider’s terms are specific and the policy terms relative to the same subject are general, also when to do so resolves an ambiguity, or when the rider is inconsistent or in conflict with one or more of the provisions of the policy, and under other circumstances unnecessary to mention here. Dunn v. Traders & General Ins. Co., Tex.Civ.App., 287 S.W.2d 682; Aetna Ins. Co. v. Houston Oil & Transport Co., 5 Cir., 49 F.2d 121 (Cert. denied); Drane v. Jefferson Standard Life Ins. Co., 139 Tex. 101, 161 S.W.2d 1057; 1 Couch on Insurance, Sec. 4:28.

In this case the primary insurance contract and the rider amending it is before the court and relevant portions have been copied in full. The stated purpose of the rider is to amend the original policy by replacing the language of Coverage B— Medical Payments in the policy with the language set out in the rider. The rider is simply an agreement that the wording of Coverage B — Medical Payments in the policy is to be disregarded after the date of the rider, and the language of Coverage B —Medical Payments as contained in the ■rider substituted for it. There is very little difference in the language of the rider and that it supplants in the policy. Added to Coverage B — Medical Payments is the expense of X-ray, and where Subdivision (2) (c) in the policy read “is caused by the activities of or is sustained by a residence employee while engaged in the employment of an insured”, the rider changed it to read “is caused by the activities of or is sustained by a residence employee and arises out of and in the course of his employment by an insured”. No expression or implication is found in either the rider or the policy to indicate the rider was intended to be an independent contract, or its provisions paramount and unaffected by the unamended provisions of the policy. It is a general rule of construction that in th'e absence of ambiguity the terms used in an insurance contract will be understood in their ordinary and usual sense. Insurance, 32 T.J. 2d, Sec. 57. The language of this rider, when given its ordinary meaning and read into the policy, does not create ambiguity within the contract or inconsistency or conflict between its several provisions.

Considering the amendatory rider as merged into and as one of the several provisions contained in the entire contractual agreement, the meaning of the policy must be ascertained by the application of the settled rule of interpretation that all provisions of the entire contract will be given effect. Standard Accident Ins. Co. v. Thompson, 139 Tex. 116, 161 S.W.2d 786; United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048; National Security Life & Cas. Co., v. Davis, 152 Tex. 316, 257 S.W.2d 943; 38 A.L.R.2d 762; General American Indemnity Company v. Robert C. Pepper, 161 Tex. 263, 339 S.W.2d 660; Pan American Life Ins. Company v. Andrews, 161 Tex. 391, 340 S.W.2d 787; American Fidelity & Casualty Co. v. Bayshore Bus Lines, 5 Cir., 201 F.2d 148.

It is to be seen from the quoted portions of the policy and the rider that Coverage B — Medical Payments as it appeared in the primary contract, and as amended by the rider, obligated the insurance company to pay all reasonable expenses incurred within one year from the date of Mrs. Mc-Kinnon’s accident for necessary medical and other services, including prosthetic devices. To be considered in connection with that obligation, however, is Item 3 of the Declarations in the policy which specifically limits to $250.00 the Company’s liability for medical payments for each person injured. Giving effect to both provisions of the policy results in the policy affording the insured, L. Fried Manning, insurance to-pay medical expense not exceeding $250.00' in this case. The insurance company in an alternative pleading to its general denial admitted liability for the sum of $250.00, and tendered it to the appellee. The appellant’s points of error No. 11 through 20 are sustained.

The judgment of the trial court is modified to allow the appellee L. Fried Manning a recovery of $250.00, and the court costs incurred in the District Court, and the costs of the appeal are taxed against the appellee, and so modified the judgment is affirmed.


author: BARROW, Justice.

text:
    M. K. BALES et al., Appellants, v. DELHI-TAYLOR OIL CORPORATION et al., Appellees.
    No. 14000.
    Court of Civil Appeals of Texas. San Antonio.

      Nov. 7, 1962.
    Rehearing Denied Dec. 5, 1962.

      Cox, Patterson, Freeland & Horger, Mc-Allen, Black & Stayton, Austin, for appellant.
    Turner, White, Atwood, Meer & Francis, C. Sidney McClain, Dallas, Charles E. Thompson, F. E. Butler, McAllen, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.
   BARROW, Justice.

This suit was brought by appellants, M. K. Bales and other landowners, to terminate certain oil, gas and mineral leases on land in the Bales Gas Unit for the alleged failure of lessees to produce oil or gas in paying quantities after expiration of the primary terms of the leases. Appellees are Delhi-Taylor Oil Corporation and Mayfair Minerals, Inc., each being the owner of an undivided one-half interest in the leases. Judgment was rendered in favor of appel-lees based upon favorable findings by the jury.

The jury found substantially as follows: (1) a reasonably prudent operator acting under similar circumstances would not have ceased producing the Bales No. 1 well from the 10,600 foot sand sooner than appellees did, considering only the profits to be realized from this sand; (2) ninety days would be a reasonable period of time within which lessees should be allowed to commence reworking operations after the date upon which a reasonably prudent operator would have ceased producing from the 10,600 foot sand; and (3) appellees commenced reworking operations on January 23, 1959.

Appellants assert that as a matter of law the leases had terminated for non-profitable production and that the leases had not been continued in force through drilling or reworking operations. In the alternative, appellants say that the findings of the jury on each issue are so against the great weight and preponderance of the evidence as to reflect passion and prejudice on the part of the jury. In connection with Issue No. 1, appellants assert that the trial court erred in instructing the jury not to consider as an expense any charge for depreciation of the equipment on said well.

Sixteen leases are unitized under the Bales Gas Unit. Most of the leases are for a primary term of five years and as long thereafter as oil, gas or other mineral is produced from said land or unitized area, and as long as operations are prosecuted under the terms of each lease. There are several different lease forms involved, but each provides substantially that if after discovery of oil or gas the production thereof should cease from any cause, the lease shall not terminate if lessees commence additional drilling or reworking operations or, if it be within the primary term, commence or resume the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of three (four) months from date of completion of a dry hole or cessation of production.

The Bales No. 1 well, which was completed on May 24, 1952, in the 10,600 foot sand, was the only well in said unit. This was a good well and although the reservoir began to be depleted near the middle of 1958, appellants concede that the well operated at a profit until September, 1958. The income from the well, and the lease and plant expenses subsequent to August, 1958, are as follows:

Appellants urge, however, that a depreciation expense of $365.00 each month should have been included. This would result in a net loss for each month after August, 1958, although a net profit was earned for the period from January, 1958, through March, 1959. Appellants’ witness Walker, a certified public accountant, testified that the useful life of the equipment on this well was fifteen years, with a salvage value of. ten per cent. Walker had never seen the equipment or the well site, and admitted that his figures bore no relation to the actual or market value of the equipment. He testified that the figures were assigned on the basis of his own accounting experience as to the normal useful life of similar equipment.

It is well settled that a habendum clause containing the language, “and as long thereafter as oil, gas or other mineral is produced,” means “produced in paying quantities.” Further, if a well pays a profit, even small, over operating expenses, it produces in paying quantities, though it may never repay its costs, and the enterprise as a whole may prove unprofitable. Garcia v. King, 139 Tex. 578, 164 S.W.2d 509.

In order to terminate the leases, it was necessary for appellants to establish two propositions: first, that appellees were not making a profit from operation of the well; and, second, that a reasonably prudent operator would not have continued to operate the well under similar circumstances. Skelly Oil Co. v. Archer, Tex., 356 S.W.2d 774; Clifton v. Koontz, 160 Tex. 82, 325 S.W. 2d 684, 79 A.L.R.2d 774. The Supreme Court in Clifton v. Koontz emphasized that there can be no limit as to time, whether it be days, weeks, or months, to be taken into consideration in determining the question of whether paying production from the lease has ceased. In the case of a marginal well, the standard by which paying quantities is determined is whether or not, under all the relevant circumstances, a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate the well. Further, the Supreme Court there held that several factors are to be considered in addition to net profit; one being the depletion of the reservoir.

We do not believe that appellants established, as a matter of law, either of these propositions necessary for a finding that the leases were terminated. Appellants concede that the issue of speculation is not in the case. If the item of depreciation was omitted, the well showed a profit each month through December, 1958. There is evidence to support the implied finding that appel-lees were prudent in draining this reservoir before abandoning it. The successful production record of the well was another factor to be considered in determining when the well should be shut in. There is evidence that the well declined very rapidly in January, 1959. In December, 1958, ap-pellees began to consider recompleting the well in another sand and contacted a contractor to discuss the cost. On January 23, 1959, appellees blew the well to get liquids out of the well bore, in an attempt to increase production. On January 26th, appel-lees secured a bid from a contractor and approved the expenditure of funds to re-complete the well in 10,500 foot sand. Some preliminary work was done before the contractor moved on the premises on March 14th. The well was satisfactorily completed in the 10,500 foot sand on April 9, 1959.

Appellants made no objection to the instruction under Issue No. 1, not to consider depreciation as an expense, and in fact requested this issue and instruction. Appellants also requested another issue and instruction which allowed depreciation to be considered. They do not complain of the failure of the court to submit their second requested issue and instruction. Appellants waived their objections to the instruction in the submitted issue by their failure to object to same. Rule 274, T.R. C.P. Furthermore, they cannot complain ot their own requested instruction and issue. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176; Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; John Hancock Mut. Life Ins. Co. v. Brennan, Tex.Civ.App., 324 S.W.2d 610, ref. n. r. e. Therefore, the question of depreciation is considered only in connection with appellants’ motion for instructed verdict.

It is now settled that actual depreciation on salvable equipment being used to produce gas from the well may be considered as an operating expense. It is not included if the equipment is a part of the drilling and completion expense. Skelly Oil Co. v. Archer, supra. Its application is very limited and we do not believe that the testimony of Walker showed that the depreciation on all equipment on the well, as a matter of law, could be considered as production expense. There was no evidence of what equipment is salvable. This is so even though the well was recompleted at another sand. Furthermore, it is clear that Walker’s depreciation rate is merely a bookkeeping entry as distinguished from actual depreciation. We, therefore, hold that appellants did not establish, as a matter of law, the amount of depreciation to he considered as expense.

We have considered all the evidence and find that the answer of the jury to Issue No. 1 is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Therefore, appellants failed to prove that the leases had terminated for nonprofitable production. In view of that holding, we do not discuss the other defense established by the verdict, i. e., that the leases were kept in force by the drilling and reworking clause.

Appellants urge error in the trial court’s permitting appellees to prove that certain appellants had given top leases on their lands in this unit to three of the appellants who had agreed to prosecute this suit at no cost to the other appellants. This evidence was admitted over appellants’ objection that it was highly prejudicial, irrelevant and immaterial. This was a general objection rather than a specific objection and therefore does not reflect reversible error. Marsh v. State, Tex.Civ.App., 276 S.W.2d 852, no writ history; Alpine Telephone Corp. v. McCall, Tex.Civ.App., 195 S.W.2d 585, ref. n. r. e. This.evidence had no relevancy to the issue of whether ap-pellees had produced minerals in paying quantities. However, appellees plead that some of the appellants were estopped to assert termination in that they had permitted appellees to recomplete the well in the 10,500 foot sand at great expense, without revealing that they had given the unrecorded top leases and intended to file this suit. Appellees had proper allegations of estop-pel and this evidence was admissible on this issue. Furthermore, we overrule appellants’ contention that the verdict reflects that the jurors were thereby motivated to passion and prejudice against appellants. Any error in admission of this evidence would be harmless. Rule 434, T.R.C.P.

The judgment is affirmed.