author: PRESLAR, Justice.

text:
    Louis COUDER et al., Appellants, v. Modesto GOMEZ et al., Appellees.
    No. 5578.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 18, 1963.
    Rehearing Denied Nov. 6,1963.
    Second Motion for Rehearing Overruled Nov. 27, 1963.

      Edwards, Belle, Hunter & Kerr, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, Taylor Nichols, Holvey Williams, El Paso, for ap-pellees.
   PRESLAR, Justice.

This is a suit for damages, actual and exemplary, in which it is alleged that three defendants — Gomez, Pedregón, and Eger — ■ ■conspired together to convert the respective interests of the plaintiffs in a wholesale merchandising business in El Paso, Texas. On the day of trial the court sustained special exceptions of the defendant Eger, overruled the special exceptions of the other defendants, and dismissed the defendant Eger from the lawsuit on the grounds that the plaintiffs’ pleadings were inadequate as to such defendant. Plaintiffs filed a motion for leave to file a trial amendment, which was denied by the court, and plaintiffs then sought to withdraw their announcement of “ready”, and that was denied by the court. At the conclusion of the plaintiffs’ evidence the court directed a verdict for the remaining defendants.

Plaintiffs, as appellants, allege eleven points of error, the first four of which relate to the trial court’s action in sustaining the special exceptions of the defendant Eger, dismissing him from the suit, refusing the motion for leave to file trial amendment, and refusing plaintiffs’ request to withdraw their announcement of “ready”. Remaining points of alleged error complain of the ■court’s action in directing a verdict.

We have considered all eleven points of alleged error, but are of the opinion that our view of Point II requires a reversal of the trial court’s decision and makes a new trial necessary. In as much as this adds the defendant Eger to any new trial, it would serve no purpose to make findings as to the other points of error complained of on this appeal.

Point II is as follows:

“The court erred in denying the plaintiffs the right to file their Trial Amendment presented shortly after the court sustained the special exceptions made to plaintiffs’ Third Amended Original Petition by defendant Albert Eger on the morning of trial.”

Rule 63, Texas Rules of Civil Procedure, provides:

“Parties may amend their pleadings, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.”

By the terms of the Rule there are no restrictions on amendments prior to the seven days before trial, and we are not concerned with that portion of the Rule in a determination of this case.

Much has been written about that portion of the Rule where “leave” of the court is required before amendment. Expressions are many that it is within the sound discretion of the trial court (46 Tex. Jur.2d 207): “Hence it is well settled that after announcement of ready the granting of leave to amend is ordinarily within the discretion of the court, this discretion being so exercised as to attain the ends of justice.” Cases too numerous to need mention have been decided on the question as to whether the trial court did or did not abuse its discretion in allowing or disallowing amendment at various stages of trial and under greatly varying circumstances.

As to the circumstances of the case before us, where leave to amend is sought to meet sustained exceptions, it has been held that amendment of pleadings is mandatorily permissible. Caperton v. Thorpe, Tex.Civ. App., 240 S.W.2d 329 (East.1951); Schepps v. American District Telegraph Co. of Texas, Tex.Civ.App., 286 S.W.2d 684 (Dal.); 20 Tex.Jur.2d 210.

The latest such expression is Leonard v. Maxwell, Tex.Civ.App., 356 S.W.2d 335 at 343 (Aus.1962), which was reversed by the Supreme Court on other grounds, but specifically not passing on this point. (365 S.W.2d 340). We would be reluctant to hold that the right to amend under such circumstances is absolute, and believe that the cases can be distinguished so that they do not pronounce such a blanket rule. To say such right was absolute, or mandatorily permissible to meet exceptions, would take control away from the court and permit amendment-exception, amendment-exception, without end. Rather, we believe it to be the law that in cases where leave to amend is sought to meet special exceptions it rests within the discretion of the trial judge, subject to review for abuse of such discretion. We believe the case before us shows an abuse of discretion when the record is reflected against the wording of the Rule: “ * * * which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.”

The case before us had been on the docket some seven months before it was tried. Previously, a judge other than the one who tried it had sustained special exceptions to the plaintiffs’ pleadings, and some two weeks prior to trial date plaintiffs filed their Third Amended Original Petition. Defendants promptly amended their respective answers in which special exceptions were again leveled at plaintiffs’ pleadings. On the day of trial these exceptions were considered, and the judge, at 12:00 noon, announced his ruling sustaining the exceptions of the defendant Eger. At 2:00 P. M., prior to the selection of the jury, plaintiffs filed their motion for leave to amend, and tendered the trial amendment. The court denied leave to amend. The tendered amendment was not considered as to its merits or adequacy; leave to file it was simply denied. Therein, we believe, is found the error in the court’s action. Hindsight, a tool of the appellate courts, now shows us the wisdom of disposing of special exceptions prior to the day of trial, but it is-not always convenient to the business of a. busy court to do so. Since it was not done,, and the parties appeared and announced ready for trial, only to have exceptions sustained and a party defendant removed from the case, we think plaintiffs should have been given the opportunity to see if they could state a cause of action against the defendant. What they had to say in the trial amendment should have been considered before forcing them to trial. They may not have been able to state a cause of action, but they should have had the opportunity to try, under all the circumstances. We do not pass on the adequacy of the-tendered amendment, for it is not before us, since the trial court did not rule on its. adequacy. The mandatory language of the Rule is that the judge “shall” grant leave to. amend unless there is a showing of surprise to the opposite party. Whether there is surprise or not depends largely on the time or stage of the trial at which the amendment is offered. We agree with what was said by the Eastland court, in Caperton v„ Thorpe (supra) :

“It seems to be the settled law in Texas that if the pleadings are still open for action on exceptions, they are equally open for amendments thereto. Goodrich v. Bell, Tex.Civ.App., 62 S. W.2d 199; Jago v. Indemnity Ins. Co., 120 Tex. 204, 36 S.W.2d 980; Smith v. Hood, Tex.Civ.App., 143 S.W.2d 646; Andrade v. Donnelly, Tex.Civ. App., 70 S.W.2d 256.”

Other elements of surprise would have to-come from the contents of the proffered amendment, and it is difficult to see how there could be the required “showing” of surprise without an examination of the-amendment itself. Appellees argue (and cite authority) that the trial court was justified in sustaining the exceptions and refusing leave to amend because plaintiffs had filed numerous pleadings in the case, and exceptions had been sustained to one of these prior pleadings. This is persuasive on the point that the trial court should be allowed to control the orderly dispatch of the business of the court, but such argument is based on what is sometimes a false premise; viz., that since the plaintiff has not stated a cause of action in the past, he will not be able to state one in the future. This strengthens our view that the matter should rest in the discretion of the trial court, but does not change our view that such discretion was not properly exercised in the instant case.

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

On Motions for Rehearing

All parties have moved for rehearing. Appellee Eger points out that this court erred in our holding that we could not consider the proffered trial amendment because it had not been considered by the trial court. In that he is right — we should have considered it. The trial court did not pass on the adequacy of the amendment to state a cause of action, but such amendment is in the record before us, none of the parties have objected to its being there, and no move has been made to strike it. We feel that we erred in our original holding, for we are bound to consider the entire record to determine whether the trial court’s action in refusing the amendment was harmless error under Rule 434, Texas Rules of Civil Procedure. Maddox v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 293 S.W.2d 499 (ref., n. r. e.); Stowe v. Baldwin, Tex. Civ.App., 298 S.W.2d 943; Bashrum v. Vinson, Tex.Civ.App., 330 S.W.2d 538; 1018— 3rd St. v. State of Texas, Tex.Civ.App., 331 S.W.2d 450. Under Rule 434, an appellate court cannot reverse a trial court for an error of law unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in. the case. To discharge our duty under that rule in the instant case, it is necessary that we examine the tendered amendment. That we have done, and we conclude that it fails-to state a cause of action against the defendants. We adhere to our original opinion that the denial of the right to amend' was error, but since the tendered amendment was likewise defective, such error cannot be said to have caused the rendition, of an improper judgment.

It now becomes necessary to-consider appellants’ points of error V through XI, relating to the action of the trial court in directing a verdict for the defendants at the conclusion of the plaintiffs’ evidence. Under such circumstances, the-correctness of the ruling depends on whether or not, under the theory of recovery relied on by plaintiffs, there is at least one fact proposition constituting a component element, asserted by the plaintiffs, as to which the plaintiffs’ evidence is so meager that reasonable men could not differ as to the conclusion that such proposition is not. established. This court must view the evidence in the light most favorable to the plaintiffs, and every intendment reasonably deducible from the evidence must be indulged in plaintiffs’ favor. Anglin v. Cisco-Mortgage Loan Co., Tex.Civ.App., 135 Tex. 188, 141 S.W.2d 935; Fender v. Farr, Tex. Civ.App., 262 S.W.2d 539; Mellette v. Hudstan Oil Corp., Tex.Civ.App., 243 S.W.2d 438 (El Paso, n. r. e.). So viewed, if the evidence amounts to more than a scintilla— that is, more than a mere suspicion or speculation that the fact exists — then an issue is-raised. Conversely, mere surmise or suspicion is insufficient to raise an issue. Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S. W.2d 669; City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718. Viewing the evidence in this case in the above light, we are of the opinion that the trial court was not. in error in directing a verdict for the defendants.

Plaintiffs brought suit for the conversion of some interest of theirs in a merchandising business. It was incumbent on plaintiffs to prove all of the elements of conversion. The action of the trial court was correct if there was no evidence, or no more than a scintilla of evidence, on any one element. One necessary element would be that plaintiffs had some property right or interest which could be the subject of the conversion. While there is much evidence of interests of various natures and kinds at different times, it is noted that by agreement all assets were turned over to defendant Gomez. There is no evidence that he wrongfully obtained any of the merchandise for his own use to the exclusion of the plaintiffs. There is evidence that he bought some merchandise at a reduced price, but there was evidence that that was the usual procedure of that arrangement, so that raises evidence of the possibility of surmise or suspicion of conversion, but no more, and that, only as to the value in excess of the price paid. The assets having been placed with Gomez, the only other act of conversion could be in his act of turning over all of the remaining assets to the defendant Pedregón and her mother, and not returning to plaintiffs such interest as might be theirs. What interests or property plaintiffs had at that time would be the subject of the alleged conversion. There is no evidence of what plaintiffs’ interest was at that time. There was evidence of debt, but this was not a suit for collection of such debt.

Another element necessary to establish plaintiffs’ suit for conversion is the element of damages, the value of the converted property or interests. What has been said above applies to the value of plaintiffs’ interest at the time of their conversion. There was no evidence of the values at such time. While proof of nominal damages would suffice to prevent a directed verdict, such is not the case here, for the nominal damages claimed by plaintiffs is the debt

Having determined that the action of the trial court in refusing the trial amendment was harmless error, and that the trial court was not in error in directing the verdict for defendants, we now affirm the judgment.

All motions for rehearing having been considered the appellants’ motion to reverse the action of the trial court in directing a verdict is denied, and appellees’ motions to affirm are granted.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    John BOLIN et al., Appellants, v. TENNECO OIL CO. et al., Appellees.
    No. 4.
    Court of Civil Appeals of Texas. Corpus Christ!
    Nov. 14, 1963.
    Rehearing Denied Dee. 19,1963.

      Richard Hall, of Branscomb, Gary, Thomasson & Hall, John Waller, Corpus Christi, for appellants.
    James Watson, of Keys, Russell, Keys & Watson, Leslie S. Lockett, of Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellees.
   SHARPE, Justice.

This is an appeal from a summary judgment rendered by the trial court in favor of appellees, Tenneco Oil Company, a corporation, hereafter called “Tenneco”, and Loyd W. Richardson Construction Corporation, hereafter called “Richardson”, that appellants, John L. Bolin, Petrea Kay Bolin, Kenneth L. Pfoff and Gwendolyn Pfoff take nothing by their suit.

Appellants, who were plaintiffs in the trial court, brought suit for damages on account of personal injuries arising out of a one car accident occurring on Mustang Island Road in Nueces County, Texas, on September 24, 1961, at a place where ap-pellees, who were defendants in the trial ■court, had made temporary repairs following damage originally caused by Hurricane •Carla on or about September 10, 11 and 12, 1961.

The record shows that on or about Sep•tember 10, 11 and 12, 1961, Hurricane Carla approached and struck the Texas ■Gulf Coast, including Mustang Island, ■causing tremendous damage. A portion of Mustang Island Road, approximately eight miles south of Port Aransas, Texas, was washed away, leaving an impassable gap •of some seventy-five feet or more in said roadway. A short distance south of said washed-out area there was a private ac■cess road leading to several oil and gas installations and facilities operated by various companies, including appellee Ten-neco. Tenneco, through its agents, caused repairs to be made to such washed-out area in the roadway by appellee Richardson so •that vehicles of Tenneco and other companies could reach their facilities by land. .Richardson deposited mud shell in said •washed-out area of the Mustang Island Road and constructed ramps at both ends thereof leading to the bottom of the washout from the pavement. After the temporary repairs were made vehicles could travel only in one lane located on the eastern side of the Mustang Island Road. 'The washed-out area was not filled to the ¡normal capacity of the road and there was a slanting drop from the top of the regular vroad bed to the bottom of the washed-out Area of about four feet. Prior to such repairs a perpendicular drop-off of about four feet had existed at either end of the ■washed-out area. Vehicles of Tenneco and the other oil companies had used the said roadway where the repairs were made for about eight days prior to the accident involved in this suit.

On Sunday, September 24, 1961, appellants John L. Bolin and his wife, Petrea Kay Bolin, together with Mr. and Mrs. Pfoff, parents of Mrs. Bolin, drove from their home in Corpus Christi, Texas, to Mustang Island on a pleasure trip. After crossing the ferry to the island and proceeding through the Town of Port Aransas they drove in a southerly direction down the beach until they arrived at a place where there was water across the beach preventing cars from travelling further south. John Bolin then noticed that cars were driving on the Mustang Island Road which parallels the beach at a distance of approximately one-quarter to one-half mile to the west thereof, and that said cars were proceeding further southward than he was able to drive his car on the beach. Appellants then got into their car, proceeded in a northerly direction back to Port Aransas and then drove on to the Mustang Island Road where they again turned southward. They passed through the washed-out area where the repairs had been made by appellees and then travelled on an access road to the beach and thereafter drove southward a short distance. After appellants had engaged in beachcombing activities for several hours, they again got into their car to make the return trip home, travelling a slightly different route from the beach back to the Mustang Island Road. Appellant John Bolin, who was driving the car at said time, testified that he arrived back at the washed-out area long before he estimated he would reach it and then his left front wheel hit part of the soft bottom on the roadway and his car went out of control and was catapulted into the washed-out area, causing injuries to all the occupants of the car. The accident occurred at about dusk when it was neither daylight nor entirely dark and John Bolin testified that he was driving with the car lights turned on.

Appellants complain of the summary-judgment by means of seven points of error. By their first five points appellants contend that the trial court erred in rendering summary judgment against them because appellees, having undertaken to make repairs to the Mustang Island Road, owed them a duty to exercise care in the manner in which the same were made and that the pleadings, depositions, affidavits and interrogatories on file raised fact issues with regard to breach of duty by appellees in five different respects, that is, (1) failure to properly slope the ramps which they constructed on the road bed, (2) failure to completely fill in the washed-out area rather than constructing sloping ramps, (3) failure to properly pack down the surface of the ramps constructed by them in the road bed, (4) failure to fill in the area in which the ramps were constructed to the entire width of the highway rather than only on one side, and (5) failure to erect some type of device to warn approaching motorists of the existence of the washed-out area and ramps constructed by them. Appellants, by their sixth point, contend that the summary judgment was improper because it was not established as a matter of law that John L. Bolin was guilty of contributory negligence on the occasion in question. By their seventh point, appellants contend that the record failed to establish as a matter of law that Petrea Kay Bolin, Kenneth L. Pfoff and Gwendolyn Pfoff were guilty of contributory negligence on the occasion in question.

Appellee Tenneco contends that the summary judgment was proper for the reasons set out in seven counter-points which are, in substance, as follows: (1) There was no duty owing by it to restore the washed-out area in the road caused by Hurricane Carla to a condition suitable for normal vehicular travel, (2) there was no duty owing by ap-pellees to place any warning signs or devices at the washed-out area on a public county road, (3) no duty owing by appel-lees to appellants was breached because the temporary repairs were made only to permit company vehicles of appellee and its business invitees and associates to traverse the wash-out, and such repairs were not made for the use of the public since the appellee’s agents causing the work to be done knew the county road had been closed to public travel, (4) appellee was only under a duty not to make more dangerous the condition of the wash-out caused by Hurricane Carla under the conditions set out in Tenneco’s third counter-point stated immediately herein above, (5) the sole proximate cause of the accident was the negligence of appellant John L. Bolin, (6) the contributory negligence of John L. Bolin was a proximate cause of the accident and would bar recovery for himself and wife, Petrea Kay Bolin, and (7) any breach of duty toward appellants was on the part of Loyd Richardson Construction Company who was an independent contractor and did the work according to its own method and plan.

Appellee Richardson contends that the summary judgment was proper for the reasons set out in four counter-points which are, in substance, as follows: (1) Appellees breached no duty to appellants because the situations and any dangers were, or should have been, known to them and it was not reasonably to be expected that persons ignorant of the dangers would be exposed to them, (2) appellants are barred from recovery under volenti non fit injuria, (3) appellee Richardson is not liable to appellants because it did not (a) volunteer to make the repairs or (b) exercise discretion as to what should be done or (c) fail to do properly what it was employed to do, and (4) John Bolin was contributorily negligent as a matter of law and the summary judgment, in any event, was properly entered as to him and his wife.

The basis of the summary judgment rendered by the trial court is not apparent, but an analysis of the eighteen points and counterpoints before us in this case discloses that we must pass upon the questions of existence of duty, breach of duty, contributory negligence, causation and volenti non fit injuria; and we must, particularly, determine whether the material facts therein involved were, or were not conclusively established. The record shows that a jury fee was paid and, therefore, if disputed material issues of fact were presented they must be resolved by a jury as the trier of the facts.

The record on this appeal consists of 336 pages. The transcript of 69 pages includes appellees’ motions for summary judgment and the supporting and contesting affidavits of James C. Harris, Assistant County Engineer, Robert N. Barnes, County Commissioner, Precinct 4, Nueces County, Texas, John L. Bolin, one of the appellants, Leslie S. Lockett, attorney for Richardson, Don Hopkins, witness for appellants, as well as interrogatories and the answers thereto. In addition there are eight depositions, including four from appellants, two from employees of Richardson, one from an official of Tenneco and one other from an employee of Shell Oil Co.

In passing upon the issues presented by this appeal, we must follow the rules applicable to motions for summary judgment set out by the .Supreme Court of Texas, in the case of Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1953) as follows:

"[1] The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on affidavits. * * *

“[2] The burden of proving that there is no genuine issue of any material fact is upon the movant, and ‘[a] 11 doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.’ * * #

“[3] ‘In determining a motion thus depending upon extrinsic evidence, the court’s task is analogous to that which he performs on a motion for directed verdict.

He accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.’ * * *

“[4] * * * [I]f a motion involves the credibility of affiants or deponents or the weight of the showings or it is said, a mere ground of inference, the motion will not be granted.”

After consideration of the briefs and record herein, we have concluded that the summary judgment in favor of appel-lees should not have been granted. We are unable to hold that there is no genuine issue of any material fact so that appel-lees would be entitled to judgment as a matter of law. This being the case, we will not discuss the facts in an anticipatory way in advance of their full development at a trial on the merits but will refer to the questions presented by the present record in order to show the basis of our holding.

In considering the question of whether there was a duty owing by appellees to appellants, it appears that on this phase of the case the summary judgment would be proper only if we can determine from the record before us that the material issues of fact which relate to existence of duty are conclusively established in favor of appellees, that is, there was no duty owing by appellees to appellants. Appellants’ Point One through Five Tenneco’s Counterpoints One through Four, and Richardson’s Counterpoint I are here involved.

In support of their contention that ap-pellees owed a duty to them, appellants, under their first five points, emphasize the following facts: That although the original washed-out area was caused by Hurricane Carla, the appellees changed the situation by making the temporary repairs so that an impassable route was made passable, and that such condition was dangerous to motorists; that prior to the repairs there was no vehicular traffic on the south side of the washed-out area because there was no way to get to such area as the beach was impassable for vehicles and the Padre Island Causeway and roadway was washed out at various points to the south; that the work undertaken by appellees created a situation that did not exist before, that is, vehicles were enabled to cross the filled-in area at the wash-out and travel further south, thereby making it possible and probable that there would be traffic from south to north across said point at night-time as well as day-time; that ap-pellees made the temporary repairs to the roadway so that vehicles operated by Ten-neco and other companies could reach their facilities located south of the washed-out area by land; and that this was an af-j firmative undertaking by appellees of aj task which they originally had no duty toj perform. In such situation appellants contend that appellees had a duty to perform the said undertaking in a manner whereby the filled-in area would not only be passable but safe to the foreseeable vehicular traffic.

Appellants rely on the cases of Rick Furniture Co. v. Smith, 202 S.W. 99 (Tex.Civ. App., 1918, no writ history); Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S. W. 517 (1922); and Ivey v. Phillips, 36 F. Supp. 811 (S.D.Tex., 1941), in support of their contention that one who undertakes the performance of a task which he has no obligation to perform in the first instance is charged with the duty to exercise care in the performance thereof. They also say that the case of Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942), is favorable to them when properly construed. Appellants further say that existence of duty is not precluded because it was not conclusively established that the condition of the roadway was so open and obvious as to charge them with knowledge and appreciation of the danger and here rely upon the case of Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, motion for rehearing overruled on October 9, 1963, opinion by Justice Greenhill.

In Rick Furniture Company v. Smith, Tex.Civ.App., 202 S.W. 99, the court of civil appeals affirmed a recovery for plaintiff despite the defendant’s contention that in hanging a porch swing which it had sold to the plaintiff it was performing a pure gratuitous service and no liability arose therefrom since the jury had found that defendant had failed to use ordinary care to ascertain whether or not the swing had been safely hung, such negligence being the cause of plaintiff’s injury and that plaintiff was not guilty of contributory negligence.

In Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517, it appeared that Fox was crushed to death by an allegedly defective elevator maintained by Dallas Hotel Company under an agreement with a third party. The hotel company defended on the theory that it owed no duty to the deceased. The Supreme Court overruled such contention on the basis of common-law, non-contract obligations imposed on a person to use care not to injure others by property controlled or forces set in operation by him.

In Ivey v. Phillips, 36 F.Supp. 811 (S.D. Tex.1941), a landowner sued for damages to the surface of his land and for injuries to the oil and gas bearing sands under his land by reason of defendant’s efforts to extinguish an oil well blowout on an adjoining tract. The court charged the jury as to the duty of a volunteer to exercise care in connection with the project undertaken based upon Texas substantive law. The jury returned a general verdict in favor of the defendant under such instructions but the case strongly supports the contentions of appellants here as to presentation of a fact issue as to existence of duty.

’ In Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942), the defendant’s truck while being operated over a bridge on a public road crushed the bridge, causing it to press down at one end below the embankment and to become dangerous to traffic. Shortly thereafter, a witness informed the driver of the truck that it had broken the bridge and asked if he was not going to put up warnings to prevent others from being injured. The driver did nothing. Several days later one of the plaintiffs was severely injured when the car in which she was riding with her husband ran on to the broken bridge. It was conceded there was no negligence which caused the bridge to break down and the only negligence relied on was the failure to put up warnings to protect other travelers from being injured as a result of the broken bridge. The judgment of the trial court, based upon a jury verdict that the defendant was negligent, was reversed and rendered by the Court of Civil Appeals, which action was approved by the Supreme Court. In holding that defendant did not owe a legal duty to plaintiffs, the Supreme Court contrasted the lack of duty of a mere bystander with existence of duty on the part of a person who with or without negligence creates a dangerous situation in or along a public way. The holding of “no duty” in Buchanan is squarely based upon the fact that the defendant’s truck driver was in the category of a mere bystander. This situation is clearly distinguishable from the instant case wherein the appellees affirmatively acted to make the repairs to the roadway.

If the decision as to existence of duty owing by appellees to appellants could be limited to the contentions made by appellants we could readily determine that, since it is conclusively shown that appellees were volunteers who undertook a task which they originally had no duty to perform, they would owe a duty to exercise ordinary care toward persons whom they could reasonably foresee might use the roadway involved. However, the “no duty” doctrine in many Texas cases assumes the legal relationship, obligations and defenses of an occupier of land or premises on the one hand, to his invitees, on the other. We do not attempt to - decide the relationship of the parties hereto in view of a new trial, as such question will be for the determination of the trial court at the appropriate time. Our present consideration of this matter cannot be restricted where we are faced with appellees’ contentions which infer a relationship which may or may not exist. Here the contention is made that appellees had “no duty” because appellants either had knowledge of the dangers at the place in question and that they appreciated the same, or that they were charged with knowledge and appreciation of the dangers because the same were open and obvious.

We have heretofore summarized the contentions of appellees under the theory of “no duty”, and we will now consider each of them separately, that is, Tenneco’s counterpoints One, Two, Three and Four and Richardson’s counterpoint I.

Tenneco, under its Counterpoint Number One, contends that there was no duty owing by it to restore the washed-out area in the road caused by Hurricane Carla to a condition suitable for normal vehicular travel. Appellants make it clear in their reply brief that they have never so contended; that they simply contend that when Tenneco elected to make the repairs to the county road, it was obligated to exercise ordinary care in the task undertaken and actually performed; and that there was a failure to do so. Tenneco’s Counterpoint Number One does not furnish a ground upon which the summary judgment may be sustained.

Tenneco contends under its Counterpoint Number Two that the summary judgment was proper because there was no duty owing by appellees to place any warning signs or devices at the wash-out on a public county road. The thrust of the argument here is that appellees were prohibited from putting up such warning signs because of the provisions of Article 670Id, Sec. 36(a), Vernon’s Annotated Texas Civil Statutes. Such position is not well taken, because, as appellants point out, if the Mustang Island Road was closed (which appellants do not concede) then the provision contained in said Statute does not apply; and if the road was open to vehicular traffic then appellees were required to make the repairs to it in the light of the provisions of said Statute prohibiting signs. In the final analysis, any duty% of appellees to give warning as to the con-; dition of the washed-out area after the re- j pairs were made may be one phase of the obligation to exercise care toward persons j who might reasonably be expected to usej said roadway. Since fact issues were presented as to the existence of duty to use care, Tenneco’s Counterpoint Number Two would not furnish a proper basis for the summary judgment.

Under Counterpoint Number Three Ten-neco contends that there was no breach of duty because their agents knew the county road had been closed to public travel, the temporary repairs having been made only for use by vehicles operated by it or its business invitees or associates and not for public use. Whether the Mustang Island Road was closed on the date of the accident and the effect of it having been closed at one time are factors involved in the issue of foreseeability as to use of the said roadway by other persons. Appellant John L. Bolin said in his deposition and an affidavit that at the intersection where he turned left to get on to the Mustang Island Road there was a three-legged sawhorse about seven or eight feet long with no printing, flags or instructions on it. Bolin said this indicated to him that one could not travel from Port Aransas all the way down to Padre Island; that other cars were travelling on the said road south of the said sawhorse on the day of the accident. Bolin observed such cars both on the trip southward and on the return trip going northward just before the accident took place. The affidavit of the County Commissioner in charge of the roads in the area in question sets out that within a few days after Hurricane Carla a barricade was placed across Mustang Island Road just south of the City of Port Aransas; that such barricade consisted of posts sunk into the ground through the paved portion of the road and extending almost across the entire width of the pavement; that there were cross pieces of 2" x 12" approximately twenty feet long; that there were red reflectors and red flags on it; that it was possible for vehicles to go around the barricade by travelling off the paved portion of the road by all or substantially all of the vehicles being on the shoulder of the road; that the barricade was damaged on some unstated date in September, 1961; that it was not feasible to prevent all vehicles from travelling south of the barricade on said road.

Appellees place great emphasis upon their contention that the Mustang Island Road was closed at the time the repairs were made, and that the temporary roadway was for use only by the vehicles of Tenneco, and those of its business invitees and associates. There is nothing in the record of this case which establishes that appellees had any better right to use the road in question than did the appellants. Although the motive of appellees in making the repairs to the roadway was admittedly proper, nevertheless, they could not simply assume on the basis of conditions existing at the time the repairs were made that the roadway would not be used by other persons at a later time. They were not shown to be in position to choose the persons who would use the roadway, and they could not sit back and ignore the use and possible use of it by others. The depositions of appellants show that a number of other cars were using the Mustang Island Roadway and the place where the repairs had been made at least for several hours prior to the accident. The Mustang Island area here involved is widely known as a place where fishing, beachcombing and other recreational activities are engaged in and which is visited by many persons for such purposes. The record herein further shows that considerable publicity was given for several days prior to the accident in question and on the day of the accident that the area was being opened to visitors; that the storm had covered the beach areas with sea shells of every description and one newspaper article set out that: “plain beachcombers are having a field day, too”.

We believe, and so hold, that the record herein shows that reasonable minds should differ as to whether appellees could reasonably have foreseen that the Mustang Island Roadway would be used by other persons on the date of the accident and thatj a material fact issue was presented to be resolved by the jury. Tenneco’s Counterpoint Number Three does not furnish a basis for upholding the summary judgment herein.

Tenneco, under its Counterpoint Number Four, contends that, under the conditions, it was only under a duty not to make more dangerous the condition of the washout caused by Hurricane Carla. Both ap-pellees argue strenuously that the temporary repairs made by them improved the situation and did not make it worse, more dangerous or more hazardous. Appellants dispute such contentions and say that the new and different situation created by ap-pellees was dangerous and that a duty of exercising care was imposed on them. Appellants point to the fact that before the temporary repairs were made the perpendicular drop-offs at either end of the washed-out area provided a warning of the dangerous condition then present; that a person approaching such location from the north could see that the washed-out area was not passable and would, therefore, never have crossed to the south side of it; that after the repairs the drop-offs were slanted somewhat and cars could be observed using the one lane of the temporary roadway created by the repairs; that the new and altered situation was actually more dangerous than the former one which, in itself, furnished a warning which was not given by the altered one.

In connection with Tenneco’s “no duty” contention, and particularly with reference to its position that it was only under a duty not to make more dangerous the condition of the wash-out caused by Hurricane Carla, reliance is placed upon the cases of Freeman v. B. F. Goodrich Rubber Co., 127 S.W.2d 476 (Tex.Civ.App. writ dism. agr.); Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109; Ainey v. Rialto Amusement Co., 135 Wash. 56, 236 P. 801, 41 A.L.R. 263; Davis v. United States, 208 F.2d 863 (2d Cir., 1953); and Hecht Co. v. Hohensee, 65 App.D.C. 328, 83 F.2d 585 (1936). Freeman is cited only for a statement of the general rule as to duty and its relation to negligence. Buchanan is actually more favorable to appellants than it is to appellees, as we have heretofore pointed out, because there was no affirmative action taken by defendant there with reference to the dangerous condition on the highway, whereas, in this case, the evidence is undisputed that appellees voluntarily took affirmative action to alter a dangerous condition which a jury could find was dangerous on account of appel-lees’ conduct. We can find nothing in the out of state cases of Ainey, Davis and Hecht, which would alter the rules laid down in the Texas cases heretofore cited and relied on by appellants.

We hold that whether the condition of the highway was dangerous at the time of the accident herein on account of the temporary repairs made by appellees or was dangerous in a different way from what it was after Hurricane Carla, involve questions upon which reasonable minds can differ and that the summary judgment herein cannot properly be based upon Ten-neco’s Counterpoint Number Four.

The “no duty” contention of Richardson is urged under its Counterpoint I. Under Counterpoint I Richardson contends that no duty owing by appellees to appellants was breached because at the time of the accident (a) the situation and any dangers were, or should have been known to them; and (b) it was not reasonably to be expected that persons ignorant of the dangers would be exposed to them.

Under its Counterpoint I Richardson argues that the appellants had knowledge of the dangerous situation at the washed-out area and of the absence of barricades and warning signs and that there is no legal duty to warn a person of, or protect him against, a dangerous situation of which he knows or of which he should have known, placing reliance upon Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). We are particularly concerned about the “should have known” part of this contention because of a recent decision of our Supreme Court in which certain language in McKee was specifically disapproved.

After the judgment of the trial court was rendered in this case and even after the briefs were filed herein, the Supreme Court of Texas handed down its opinion in the case of Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, motion for rehearing overruled on October 9, 1963. The opinion contains an exhaustive review of the Texas “no duty” decisions as well as the Texas volenti non fit injuria cases and the court specifically disapproves certain statements in McKee to the effect that in the application of such concepts whether the plaintiff should have known and appreciated is sometimes a jury question. Under Halepeska it is now clear that under both the “no duty” and volenti concepts there must be (1) knowledge, or facts which charge a person with knowledge, and (2) appreciation of the danger, in order to affect recovery.

There are several reported cases where reliance has been placed upon McKee and the “should have known” language heretofore referred to. Since we cannot determine the basis of the summary judgment rendered by the trial court herein, a strong ground for reversal is presented for the reason alone that the lower court could have held that appellees owed no duty to appellants because they “should have known” and “should have appreciated” the dangers at the washed-out area where the repairs were made, placing reliance upon McKee, just as the Court of Civil Appeals did in Halepeska.

Subdivision (b) of Richardson’s Counterpoint I relates to foreseeability of use of the roadway by members of the public. Since we have already held, under Ten-neco’s Counterpoint Three, that a fact issue was presented in such connection, we also overrule Richardson’s said contention presented under subdivision (b) of its Counterpoint I.

Under Counterpoint III Richardson contends that it is not liable to appellants because it did not (a) volunteer to make the repairs; or (b) exercise discretion as to what should be done; or (c) fail to do properly what it was employed to do. The record establishes that Richardson made the temporary repairs to the washed-out area under a contract with Tenneco. Whether Richardson exercised discretion as to what should be done, or failed to do properly what it was employed to do, involve issues which are not conclusively established and must be resolved by a jury. Said counterpoint is overruled.

From the foregoing discussion it is apparent that there was sufficient evidence to raise the following genuine issues of material fact: That appellees created a situation on the roadway which was dangerous because of the temporary repairs made by them, regardless of the fact that the originally dangerous situation was caused by Hurricane Carla; that appellees could reasonably have foreseen that the Mustang Island Roadway would be used by other persons such as appellants; that appellants did not have actual knowledge and appreciation of the dangers involved and did not have full knowledge and appreciation of dangers which were open and obvious. We, therefore, hold that the present record fails to conclusively establish that appellees owed “no duty” to appellants, and the presence of fact issues concerning duty prevented summary judgment on that phase of the case. The “no duty” contentions of appellees are overruled.

We will next consider the questions relating to the alleged breach of duty. On this phase of the case, the summary judgment in favor of appellees would be proper only if it was conclusively established that there was no breach of any duty owed by appellees to appellants. If a jury could find, on the basis of the evidence in the record before us, that appellees failed to use ordinary care in connection with the repairs made- to the roadway in the respects alleged by appellants, i. e., failure to properly slope the ramps, or to fill in the washed-out area, or to properly pack down the surface of the ramps, or to fill in the area to the entire width of the highway, or to erect some type of device to warn motorists of the conditions existing at the site of the washed-out area, then breach of duty could be established. When we look to the record as a whole it clearly appears that jury issues were raised in connection with the said allegations of breach of duty. One pertinent portion of the evidence is to the effect that appellee Loyd Richardson Construction Company ordinarily did not perform road work or repairs and the person in actual charge of the repairs at the washed-out area, as well as the workers themselves, were not experienced in such line of work. A breach of duty by appellees in one or more of the instances mentioned could be found by a jury to be a proximate cause of the accident in question and such issues of causation on account of the conduct of appel-lees were not conclusively established against appellants. The summary judgment herein cannot properly be based upon either the lack of material fact issues as to breach of duty by appellees or of causation because of their conduct.

On the questions of contributory negligence and causation in connection therewith we are concerned with appellants’ points Six and Seven, Tenneco’s Counterpoints Five and Six, and Richardson’s Counterpoint IV. Appellants contend that the record fails to establish that either John L. Bolin or any of the three other appellants were guilty of negligence as a matter of law. Tenneco contends that it was conclusively shown that the sole proximate cause of the accident was the negligence of John L. Bolin or, in any event, that such negligence was a proximate cause, which would bar recovery for John L. Bolin and his wife. Richardson joins in the last-stated contention.

Consideration of the entire record convinces us that the issues of contributory negligence and causation were not conclusively established against appellants. Appellants rely upon the cases of Shuford v. City of Dallas, 144 Tex. 342, 190 S.W.2d 721 (1945) and Adams v. Corbin, 301 S.W.2d 209 (Tex.Civ.App., 1957, err. dism.). We hold that under such decisions we are precluded from finding that such issues were established conclusively so as to authorize a summary judgment against appellants.

Richardson contends under its Counterpoint II that appellants are barred from recovery under volenti non fit injuria.

We have heretofore called attention to the case of Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, rehearing denied on October 9, 1963, opinion by Justice Greenhill. In connection with the doctrine of volenti non fit injuria, the court said in part:

“The volenti doctrine is an affirmative defense. ‘Volenti’ is a contraction of the Latin phrase, volenti non fit in-juria, which means legally that a plaintiff may not recover for an injury to which he assents; that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger. In this state, the decision to incur the risk must have been deliberate; i. e., made with knowledge and appreciation of the danger so that it may be said that the person acted as a result of an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W. 2d 172 (1951). Logically, a plaintiff cannot make an intelligent choice to confront a risk if he does not actually know of the danger, or know such facts as would in law charge him with knowledge of the danger and appreciation thereof. Thus, while the cases speak of the requirement of actual knowledge and appreciation, the plaintiff may not close his eyes to obvious dangers; and he may not recover where it is shown that he is in possession of facts from which he would be legally charged with appreciation of the danger. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952).”
******
“On the basis of Wood v. Kane Boiler Works, and cases following it, therefore, for volenti to be applicable, there must be actual knowledge and appreciation; or the danger must be so open and obvious that the plaintiff is charged in law with knowledge and appreciation thereof. So the plaintiff must know (an issue of fact, usually) or be charged in law with knowledge and appreciation. That being so, the ‘should have known’ of the danger, and ‘should have appreciated the extent of the danger, if any, in opening the valves,’ as issues of fact, in this Halepeska case were properly disregarded by the trial court, in so far as the defense of volenti is concerned.”

We have heretofore discussed Halepeska in connection with the “no duty” contentions of appellees and have pointed out that the summary judgment of the trial court herein could have rested on the basis of the “should have known” and “should have appreciated” language in McKee and other cases decided before the opinion of the Supreme Court in Hale-peska. A similar reason for reversal is here presented under the volenti doctrine. Under Halepeska it appears that if a court cannot say as a matter of law that a plaintiff has voluntarily exposed himself to a danger with actual knowledge, or its equivalent, and appreciation of it, then such issues are for determination by the jury. We cannot say, under summary judgment rules, in this case that appellants were conclusively shown to have voluntarily exposed themselves to danger with knowledge and appreciation of it any more than the Supreme Court could say that Halepeska was so charged with knowledge and appreciation in the cited case.

Halepeska further points out that the "no duty” and volenti doctrines are relatively harsh doctrines which go beyond ascertaining whether the plaintiff failed to exercise ordinary care under the circumstances and hence was contributorily negligent; that they bar recovery, generally, without inquiry as to justification or proximate cause. The court, therefore, felt required “to recognize justifiable limits” on the doctrines of “no duty” and volenti.

Richardson’s Counterpoint II does not furnish a sufficient basis for the summary judgment herein and it is overruled.

It further appears that some of the contentions made herein involve the relationship between Tenneco and Richardson. Appellee Tenneco contends, by its Counterpoint Number Seven, that if there was any breach of duty toward appellants it was on the part of Richardson who was an independent contractor as to Tenneco and who did the work according to its own method and plan. We have heretofore mentioned the contention made by appel-lee Richardson under its Counterpoint Number III that it is not liable to appellants because it did not (a) volunteer to make the repairs; or (b) exercise discretion as to what should be done; or (c) fail to do properly what it was employed to do.

In the trial court Richardson denied that appellants were entitled to recover, but plead alternatively that in the event of such recovery that it have indemnity or contribution against Tenneco. Tenneco did not ask for similar relief against Richardson. The summary judgment of the trial court did not adjudicate any issues as between Tenneco and Richardson and there was no necessity for such action since the trial court held that neither appellee was liable to appellants. The issues between appellees as to indemnity or contribution could only arise in the event of recovery by appellants and there is no necessity for us to give consideration to this phase of the case. The record shows that Tenneco caused the temporary repairs to be made by Richardson. Since reasonable minds could differ as to whether there was negligence in connection with the making of same, the above-mentioned counterpoints furnish no proper basis for the summary judgment.

Summary judgment is possible in this state only by virtue of Rule 166-A, Texas Rules of Civil Procedure, and the provisions of this rule must be strictly complied with. The underlying purpose of said rule is the elimination of patently unmeritorious claims and it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. The burden of demonstrating the lack of a genuine issue of fact is upon the movant and all doubts are resolved against him. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S. W.2d 233 (1957); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). The court necessarily acts upon a “cold record” in passing upon a motion for summary judgment. Experience proves that the factors of credibility of witnesses and weight to be given testimony may be involved in some types of cases more than in others and observation of witnesses by the jury may effectively influence the determination of fact issues. This is not to say that the summary judgment procedure should be disregarded 'where the requisite tests are met; but it is clear to us that the instant case is one in which the parties should not be deprived of a full scale trial, whatever the results may be.

The summary judgment cannot be sustained in this case. The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . In Rick, 202 S.W. at page 100 of the opinion, the court said: “[h]aving undertaken to hang the swing, appellant thereby bound itself to exercise ordinary care to make it reasonably safe for the use to which appellee intended to put it. This view is supported by authorities cited by appellee. The rule is thus stated in 9 Cye. 310: ‘The promise of a gratuitous service, although not enforceable as a promise, involves liability to use ordinary care and skill in performance.’ In Bailey v. Walker, 29 Mo. 407, the court, after announcing the well-established rule that a promise, to support an action, must be founded on a sufficient consideration, said: ‘If a man without any consideration promises to do a thing, and fails to do it, be cannot be sued for sucb failure; but if he does undertake it, and by negligence does it in a manner to cause loss to Mm for whom he is acting, he will be bound to make good that loss.’ Like-wise the Supreme Court of New York in Thome v. Deas, 4 Johns. (N.Y.) 84, held that an action will not lie for nonfeasance of a gratuitous act, but stated the principle we think applicable here thus: ‘If the party who makes this engagement, enters upon the execution of’ it ‘and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for tMs misfeasance.’ ”

      .In Fox, the court cited with approval from other decisions as follows: “There is still another class of cases which hold what seems to us to be the correct doctrine, viz. that the obligation, whether for misfeasance or nonfeasance, does not rest in contract at all, but is a common-law obligation devolving upon every responsible person to so use that which he controls as not to injure another, whether he is in the operation of his own property as principal or in the operation of the property of another as agent.”
      Hs Jit ❖ sjs sH
      “In every situation where a man undertakes to act or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another just as if he had bound himself by an obligatory promise to exercise the required degree of care.”

      . In Ivey, 36 F.Supp. at page 817 of the opinion, the court said: “The Court charged the jury that defendant was under no obligation to kill the well; but having attempted to do so, defendant owed plaintiff the duty to exercise ordinary care in its attempt to kill the well so as not to injure plaintiff^ that if defendant failed to exercise ordinary care and such failure was the proximate cause of plaintiff’s damage, then the jury was authorized to find for plaintiff according to the measure of damages stated.”

      . Footnote 9 from Ivey, hereinabove indicated, reads as follows: “Defendant contended that it was not liable to plaintiff, even for negligence, because it owed no duty to plaintiff, (citing cases) Having undertaken to kill the well, however, defendant was in duty bound to exercise ordinary care so as not to injure plaintiff or his property. Rick Furniture Co. v. Smith, Tex.Civ.App., 202 S.W. 99; Missouri, K. & T. Ry. Co. v. Wood, 95 Tex. 223, 66 S.W. 449, 56 L.R.A. 592. 93 Am. St.Rep. 834; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517.”

      '5. In Buchanan the court said:
      “There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty. Using familiar illustrations, it may be said generally, on the one hand, that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others. Under the last rule, a bystander may watch a blind man or a child walk over a precipice, and yet he is not required to give warning. He may stand on the bank of a stream and see a man drowning, and although he holds in his hand a rope that could be used to rescue the man, yet he is not required to give assistance. He may owe a moral duty to warn the blind man or to assist the drowning man, but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance.
      “We think it may also be said that if one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own safety may be injured by the dangerous situation so created, the one creating the same must give warning of the danger or be responsible for the consequences. To illustrate: One who in the exercise of a lawful right, and without negligence on Ms part, makes an excavation across a street or sidewalk or on his premises in close proximity to a public way, or parks a vehicle in a road, or otherwise obstructs the road with a foreign substance, is bound to give warning of the danger created thereby. Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089, 17 L.R.A.,N.S., 758; Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107, L.R.A. 1918D, 126; Buesching v. St. Louis Gas Light Co., 73 Mo. 219, 39 Am.Rep. 503.”

      . Olen W. Richardson testified by deposition substantially as follows: He is superintendent of the construction department of Loyd Richardson Construction Company, but is not connected with tow boats, barges or dredging work of said company. He has been in construction work for about thirty years. After Hurricane Carla he was requested by some oil companies to do some work on Mustang Island. Tenneeo needed some equipment to place shell on their plant site and for some other repairs on short roads. He sent a barge with a crane on it and a bulldozer and some trucks. He, personally, did not go to the area of the wash-out until about three weeks after the accident. His company sent five or six men to do the work under Mr. Boatright’s direction and control. They first engaged in work at other jfiaees and were then requested to do the work at the washed-out area of the Mustang Island Road. He told Boat-right they needed some shell over there, and he later learned that seventy five yards of shell was furnished. A company record showed that the work was done on September 16, 1961. His company did other work in the area for probably thirty to forty days. He did not know about warning signs at the time the shell was placed in said location. Although he had heard of other washed-out areas on the Mustang Island Road, the one involved in this case is the only one he had actually seen. He said it was dangerous. Loyd Richardson Construction Corporation customarily does not do construction work or repair work on public highways or streets, and the instant case was the only time he knew of where repairs had been made by his company to a county road. He did not contact anyone with the county or other official concerning such repairs. He did not know whether anyone with Tenneeo contacted any county official about such repairs. His company did not have warning signs of any type in connection with the work in that area. Richardson had five or six people working in that area for thirty to forty days after Hurricane Carla. He did not make inquiry to determine if Tenneco or any of the other oil companies had asked for permission to make repairs from the county. The trucks used in making the repairs to the washed-out area were rented with drivers. There are a number of types of rollers used to pack down shell or dirt and Richardson did not have any of them.
      Thomas C. Boatright testified by deposition substantially as follows: He had been employed by Richardson over a period of twelve’ years. In September, 1961, his title was Marine Foreman, pile driver foreman. Whenever there was no pile driving work he did whatever else there was to be done. After Hurricane Carla he received orders from his company to do some work on Mustang Island for some oil companies. Representatives of such oil companies went with him to the washed-out area and told him what they wanted done. He was told to patch the wash-out in the county road just enough so that trucks could get back and forth across it. He just filled the washed-out area in to where they could pass it in the lower part of it. He pushed the shell in with a ’dozer and put shell all the way across the washed-out area. The shell was hauled in by trucks. The shell was only packed down by the bulldozer and trucks backing over it. The hole was partially filled up and he put in a slope from the bottom of the washed-out area up to the paved portion of the road. The ramp was the width of the dozer blade, about 8-10 feet at the top and was wider at the bottom. The ramps sloped for about 35-40 feet on each side of the gap. He worked at the washed-out area one day, or perhaps two, and did not return for several weeks. During the repair work at the washed-out area two men from oil companies told him what they wanted him to do. He did not know the names of these men. They did not tell him what kind of vehicles would be using the roadway which was repaired. No other employees of Richardson gave him instructions as to what to do. He did the work the way it seemed to him it should have been done and left it at that, according to the instructions of Tenneco. He used only mud shell. He knocked down the toe of each slope to get smooth access to each slope, that is, he knocked off a foot or so of the pavement. There was no conversation about putting up a barricade or a flare or sign at either end of the washed-out area. The west lane of the road was not repaired. Before the wash-out was repaired vehicles could not go across it. After the repairs two wheel vehicles could cross the washed-out area at slow speed. He gave his opinion that the temporary fill improved the bottom of the wash-out for vehicular trafile; it was impassable before the work was done.

      . In 92 O.J.S., pp. 1027-1028, the following appears:
      VOLENTI NON PIT INJURIA. A maxim meaning “ ‘[t]hat to which a person assents is not esteemed in law an injury.’ or ‘He who consents cannot receive an injury.’ The maxim is a familiar principle of the common law, and means that if one, knowing and comprehending the danger, voluntarily exposes himself to it, even though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. It is predicated on the theory of knowledge and appreciation of the danger and voluntary assent thereto.”
      Similar expressions from reported cases are as follows: (1) To the consenting no injury is done; (2) a person who consents to a thing cannot complain of it as an injury; (3) no legal wrong is done to 1dm who consents; (4) one who consents to the doing of an act cannot maintain an action in respect of the damage which results; (5) that which, unauthorized. would amount to wrongful injury, subjecting the doer of it to an action for damages by the person injured, loses such character if the person suffering the disadvantage or injury consents to the act; (6) one will not be heard to complain of results one has invited; (7) one who voluntarily exposes himself or his property to a known arid appreciated danger, may not recover for injuries sustained thereby; and (8) no one can enforce a right arising out of a transaction which he has voluntarily assented to.


author: COLLINGS, Justice.

text:
    KERMIT WHOLESALE LUMBER COMPANY, Inc., Appellant, v. Billy STANFIELD, Appellee.
    No. 3844.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1963.
    Wesch & Swift, Kermit, for appellant.
    Hill D. Hudson, Pecos, for appellee.
   COLLINGS, Justice.

Kermit Wholesale Lumber Company, Inc., brought suit on a note against Billy Stanfield and J. E. Murphy as makers. Upon a trial before the court, without a jury, judgment was entered against Murphy as prayed but recovery against Stanfield was denied. Kermit Wholesale Lumber Company, Inc., has appealed.

The evidence shows that the material facts are as follows: That Murphy and Stanfield were operating West Texas Roofing Company, a corporation; that Murphy and Stanfield were the principal stockholders in the corporation and that it was becoming insolvent; that the roofing company owed an account to appellant Kermit Wholesale Lumber Company, Inc., and that Stanfield prepared and offered to give appellant two notes in payment of the account, one note signed by Stanfield and the other note signed by Murphy; that the note signed by Murphy was not acceptable to appellant until Stanfield signed as a comaker; that Stanfield did sign such note which is the note here in question and that appellant accepted said notes in payment of the account of West Texas Roofing Company.

In appellant’s first point it is contended that the court erred in failing to make and file findings of fact and conclusions of law after timely request and notice of failure to make findings and file conclusions was given.

Rule 296, Texas Rules of Civil Procedure provides as follows:

“Upon a trial by the court, the judge shall, at the request of either party, which request shall he filed within ten days from rendition of final judgment or order overruling motion for new trial, state in writing the conclusions of fact found by him separately from the conclusions of law. * * * Such findings of fact and conclusions of law shall be filed with the clerk and shall be a part of the record. * * *”
Rule 297, T.R.C.P. provides as follows:
“When demand is made therefor, the judge of a district or county court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.”

The record indicates that on April 1, 1963, judgment nunc pro tunc for $2,100.00 and interest was entered against J. E. Murphy in favor of appellant, the judgment further provided that Stanfield was not indebted to appellant in any amount. Appellant thereafter, on the same day, in accordance with Rule 296, supra, requested in writing that the court file with the clerk findings of fact and conclusions of law. Appellant also gave notice of appeal from that portion of the judgment denying recovery against Billy Stanfield. On May 2, 1963, appellant filed with the court and clerk a notification to the court to file findings of fact and conclusions of law as provided by Rule 297, supra, and on May 9, 1963, filed with the judge and clerk of the court its bill of exceptions to the court’s failure to make and file findings of fact and conclusions of law. This bill of exceptions was approved by the court. It thus appears that appellant duly filed its request for the court to file findings of fact and conclusions .of law as provided by Rule 296, supra, and when the court failed to prepare and file such findings and conclusions that appellant, in compliance with Rule 297, supra, duly and in writing called the matter to the attention of the court.

An examination of the statement of facts shows that Harold E. Diller, Vice President and General Manager of appellant Kermit Wholesale Lumber Company, Inc., testified, in effect, that appellee Stanfield guaranteed the payment of the debts of the West Texas Roofing Company; that thereafter appellee assumed the indebtedness of the West Texas Roofing Company and in doing so gave appellant two notes, one signed by appellee alone and the other signed by both Murphy and appellee in extinguishment of the indebtedness of the West Texas Roofing Company. Diller also testified that he would not accept the note of Murphy alone as an extinguishment of a part of such debt but required that Stanfield become a comaker of the note and that Stanfield in signing the note was accommodating Murphy. The testimony of appellee Stanfield indicates that he did not guarantee the indebtedness of West Texas Roofing Company and that when he signed the note with Murphy he did so with the understanding that he was accommodating appellant. It thus appears that the testimony of Diller and Stanfield are in conflict upon material' issues of fact and that their testimony would support different conclusions of law concerning the rights of the parties. Under such circumstances it is reversible error for a trial court to fail to file findings of fact and conclusions of law upon which the judgment rests where, as here, proper request has been made therefor as provided in Rules 296 and 297, supra. Jackson v. Skrivanek, Tex.Civ.App., 292 S.W.2d 106; Richie v. State, Tex.Civ.App., 275 S.W.2d 723; Hoyt v. Geist, Tex.Civ.App., 364 S.W. 2d 461.

For the reasons stated the judgment is reversed and the cause is remanded.


author: GRISSOM, Chief Justice.

text:
    Jewel CURTIS et al., Appellants, v. Tafida Farida CURTIS, Appellee.
    No. 3840.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 22, 1963.
    Rehearing Denied Dec. 20,1963.
    Lynch & Chappell, Midland, Bruce Graham and Wm. C. Parker, Greenville, for appellants.
    H. S. Harris, Jr., and Tom Parker, Midland, for appellee.
   GRISSOM, Chief Justice.

Jewel Curtis and Mrs. Addie Curtis, sister and mother, respectively, of J. B. Curtis, Jr., deceased, sought to probate a writing which they alleged was his will. They alleged that it was executed about the 12th of October, 1958, and that they were heirs of deceased and devisees in said will and that his widow, Tafida Curtis, was also an heir. Jewel Curtis also sought appointment as administratrix of said estate with the will annexed. Said application was contested by Tafida Farida Curtis, widow of the deceased, who alleged that she was the duly qualified and acting administratrix of said estate. She denied that her husband left a will. She denied that the instrument tendered for probate was testamentary in character or that it disposed of deceased’s property. The court sustained the contestant’s motion for an instructed verdict and rendered judgment denying the application of the sister and mother to probate the writing as the will of J. B. Curtis, Jr. Said applicants have appealed.

The writing offered for probate is as follows:

“JEWEL & MOTHER GET ^ OF STOCK SALES
JEWEL & MOTHER GETS HER $11,000 CHECK CASHED.
JEWEL & MOTHER GET GREEN-VILLE PROPERTY
LITTLE BRICK HOUSE 14 OF OIL PROPERTIES BANK ACCT.
J. B. CURTIS, JR.”

Over the words “check cashed” there had been written “paid 10/28/58.” There was evidence that established, or from which a jury could have found, that said instrument was wholly in the handwriting of and signed by the deceased. It was not dated.

The only evidence offered that this writing was intended by deceased as a will was that of Jewel Curtis, who offered to testify that she saw deceased write it at her home; that he gave it to her, stating it was his will and that he intended to thus dispose of his property at his death. There was no other testimony offered which tended to show that this instrument was intended as a will. There was also offered and rejected the testimony of Overstreet, a disinterested witness who was not a party to the suit, to the effect that more than four years prior to execution of the writing in question deceased stated to him that, because his father had died, he must have a will written and that, in 1959, more than four years later, the deceased stated that he had done so.

Appellants contend the court erred in sustaining appellee’s motion for an instructed verdict and in refusing to admit the testimony of Jewel Curtis and Over-street. Appellee’s counter points are to the effect that the court did not err in so ruling because there was no probative evidence to identify the writing as a will and the proffered testimony of Jewel Curtis was inhibited by Article 3716, Vernon’s Ann. Civ.Stl

We think the court did not err in refusing to admit the testimony of Over-street. It did not tend to show that the writing sought to be probated was intended by deceased as a will. Furthermore, if Overstreet’s testimony should have been admitted its rejection was harmless to appellants because it did not identify the proffered writing, nor tend to show it was intended as a will. We overrule appellants’ points of error and sustain appellee’s stated counter points.

The instrument on its face does not purport to be a will. It does not purport to dispose of the property of J. B. Curtis, Jr., at his death. It is more reasonable to conclude therefrom that it was intended as a memorandum from which a will might be drawn, or of the manner in which he planned to dispose of his property in his life time. It is undisputed that the $11,-000.00 check mentioned therein was cashed and the proceeds received by his sister and mother during his life time. The proffered testimony of Overstreet, if received, would not have identified this instrument as the will of the deceased. If it constituted any evidence on the issue it amounted to no more than a scintilla and came within the decision of the Supreme Court in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. If admissible, it was not of such character that its rejection was reasonably calculated to cause, or probably did cause, rendition of an improper judgment.

The appellants, as heretofore shown, alleged that the sister and mother were the legatees and heirs of the deceased. The sister sought to be appointed administratrix of the estate. In the absence of a will, the sister, mother and wife would have been heirs of the deceased. Probate Code Sec. 38(b), par. 2, V.A.T.S. The appellee, the widow of the deceased, alleged she was administratrix of the estate. It is evident that any judgment rendered would have bound said parties as heirs. The test is the effect of the judgment. Under this sitúation, the testimony of Jewel Curtis was inhibited by Article 3716. McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 215, 115 A.L.R. 1421; Spencer v. Schell, 107 Tex. 44, 173 S.W. 867, 868; Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298; Leahy v. Timon, 110 Tex. 73, 215 S.W. 951; See also 21 A.L.R.2d 347; Schelb v. Sparenberg, 133 Tex. 17, 124 S.W.2d 322, 326; Poole v. Starke, Tex.Civ.App., 324 S.W.2d 234, (Ref. N.R.E.); Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885; In re Boyd’s Estate, (Sup.Ct. of Wyoming), 366 P.2d 336; In re Craft Estate, Tex.Civ.App., 358 S.W.2d 732, 733, (Ref. N.R.E.); Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935.

The judgment is affirmed.


text:
    Robert H. BOWYER, Appellant, v. LEVY’S OF TUCSON, Appellee.
    No. 3850.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1963.
    Woodard & Christie and Joe W. Christie, El Paso, for appellant.
    Schwarzbach & Ross and John C. Ross, Jr., El Paso, for appellee.
   COLLINGS, Justice.

Appeal from the 41st Judicial District Court of El Paso County.

Levy’s of Tucson brought suit against Robert H. Bowyer upon a sworn account for goods, wares and merchandise alleged to have been furnished by plaintiff to one Eleanor F. Cary and upon authority from Bowyer charged to his account. Bowyer filed a sworn denial of the account. Plaintiff filed its motion for summary judgment under the provisions of Rule 166-A, Vernon’s Texas Rules of Civil Procedure which was granted. Bowyer has appealed.

Appellant presents points in which it is contended that the court erred in granting summary judgment to Levy’s of Tucson, because (1) appellant’s affidavit of denial placed in issue the correctness of all items constituting the account sued upon and that genuine issues of fact were therefore presented which should be determined upon a trial of the case and (2) that appellant’s plea of unauthorized agency likewise raised genuine issues of fact to be determined upon a trial.

The record shows that appellant Bowyer did file a sworn denial of the account. Such sworn denial had the effect of neutralizing the affidavit thereto by appellee, Levy’s of Tucson, and placed in issue the correctness of all items constituting the account. Rule 185, V.T.R.C.P. The burden then rested upon appellee to prove its case. Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235. Appellee indicates its agreement with the above announced principle but contends that in the instant case the record contains the sworn answer of appellant to interrogatories and admissions made by .appellant in answer to appellee’s request therefor which establish the existence of all facts necessary to appellee’s right to recover.

-We cannot agree with appellee’s contention in this respect. The admissions of appellant Bowyer in answer to interrogatories and appellee’s request for admissions do indicate that appellant had a charge account with appellee and that Miss Eleanor F. Cary was authorized to purchase upon such charge account. Appellant in his admissions denied that Miss Cary was authorized to make unlimited charges but admitted that he executed a contract with Levy’s of Tucson opening a charge account with them which showed that Miss Cary was authorized to charge purchases to his account and the contract. The contract was introduced in evidence and its terms in no way limited the purchases which she was authorized to make upon such account. However, the record shows no admissions by appellant or any other showing to the effect that the items in the account were just and correct. Appellee had the burden to proceed to prove its case, including the burden to establish that the items in the account were just and correct. Appellee failed to meet that burden and the court therefore erred in granting the summary judgment.

The judgment is reversed and the cause is remanded.


author: NORTHCUTT, Justice.

text:
    Ruth Lea UECKERT, Appellant, v. Clifton Lee UECKERT, Appellee.
    No. 7307.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 2, 1963.

      Grindstaff & Grindstafif, Ballinger, Bruce L. Miller, Hereford, for appellant.
    No attorney appearing for appellee.
   NORTHCUTT, Justice.

On August 12, 1960, Ruth Lea Ueckert, as plaintiff, brought suit in the district court of Deaf Smith County, Texas, against Clifton Lee Ueckert, as defendant, for divorce and custody of their five minor children. Custody of the children had been placed with the plaintiff and defendant had been ordered to pay child support. On December 6, 1960, a hearing was had before the court and the court announced he would take the case under advisement insofar as granting a divorce was concerned and again placed the custody of said children with the plaintiff subject, however, to the control and management of the Deaf Smith County Welfare Board. For convenience, Ruth Lea Ueckert will hereafter be referred to as appellant and Clifton Lee Ueckert as ap-pellee.

On December 14, 1960, appellant filed and presented her motion for non-suit which motion was taken under advisement by the court. On September 20, 1961, the court not having acted upon the motion for non-suit that appellant had filed on December 14, 1960, the appellant again requested non-suit. Up to the time the last motion for non-suit was filed appellee had filed no pleadings asserting affirmative relief and no decision had been made. Sometime after filing this suit in Deaf Smith County appellant changed her residence to Winters, Runnels County, Texas, and on December 19, 1962, she filed suit in Runnels County for divorce and for custody of the minor children here involved. On January 2, 1963, just 14 days after the suit was filed in Runnels County, without any notice to appellant judgment for divorce was granted in this case to appellant and custody of the five minor children was awarded to and placed under the control and supervision of the Deaf Smith County Child Welfare Board and designated Mrs. Jewel Smith as the representative of the Board.

As soon as appellant learned of such judgment being entered she filed a motion for new trial and a bill of review. The court then on January 31, 1963, entered what is designated as an amended judgment, setting out many things not here involved, but again awarded custody and control of said five children to the Welfare Board as previously ordered. In this amended judgment the court found that it would be to the best interests and welfare of the minor children that the custody and control of the minor children should be continued under the supervision and control of the Deaf Smith County Child Welfare Board and physical custody of such minor children be left with Mrs. Leona Hicks, the children’s grandmother, but did not so order; but gave full custody and control to the Deaf Smith County Child Welfare Board. From this amended judgment the appellant perfected this appeal. Appellee has never appeared and contested this appeal and has not filed a brief herein.

By appellant’s first assignment of error it is contended the court erred in granting judgment in the case and in not dismissing the suit since appellant had twice requested non-suit before appellee had ever sought any affirmative relief and no decision had been made and by appellant’s fifteenth assignment of error it is contended the court erred in not awarding the custody, care, and control of the children to the appellant when the overwhelming weight of the evidence shows that the mother was a fit and proper person to have the care, custody and control of said children for their best interests and welfare. We will discuss these two assignments together.

In the amended judgment the trial court stated that appellant appeared and filed an answer to appellee’s application for change of custody for such minor children as a matter of law that the appellant waived her motion to dismiss this case and had submitted herself at all times to the jurisdiction of that court. We cannot agree with that holding. The appellant had twice sought a non-suit but had been unable to get the court to act upon the motions. Rule 164, Texas Rules of Civil Procedure, provides as follows: “At anytime before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at anytime before the decision is announced.” We are of the opinion, and so hold that, so far as the divorce was concerned, when the appellant sought to take a non-suit and the appellee had sought no affirmative relief and no decision had been made the court was bound to grant such request and dismiss the divorce proceedings. Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (Supreme Court); Hawkins v. Hood, Tex.Civ.App., 331 S.W. 2d 954.

In the case of McClendon v. McClendon, 289 S.W.2d 640 the court denied plaintiff a non-suit and granted her divorce and awarded temporary custody of the children to county probation officer as was done in this case. From that judgment the plaintiff appealed. The court there held the non-suit should have been granted as to the divorce but that the plaintiff was not entitled as a matter of right in the absence of court’s consent to deprive the court of jurisdiction to determine what was the best interests of the children and in whose custody they should be placed once all the testimony was in upon such issue. We think it is also true that a trial court is not entitled as a matter of right to deprive parents of the custody of their children without just cause. Under this record there is absolutely no evidence to even suggest that the best interests of the children should be placed under the custody, control or supervision of anyone other than their mother. The children were in the custody and control of their grandmother while the mother was finishing school so she could teach and make a living for the children. The appellant did return to her mother’s home approximately every two weeks to be with the children. The court held the best interests of the physical custody of said children should be left with their grandmother who had the children while their mother was in school and in fact has had them all during these proceedings but were really in the custody of their mother. Nevertheless, the court adjudged that the custody of the children was in Deaf Smith County Welfare Board. The Welfare Board consists of seven persons •of Deaf Smith County, and there is nothing to show that any of them were properly trained in such line, and the children reside in Runnels County with the mother and .grandmother. The father suggested the children be placed in a children’s home. The undisputed evidence shows the children were well cared for, going to school, church, Sunday School, and were well trained. The law presumes that the welfare of the children will be best served by awarding their custody to a parent rather than to another unless it is affirmatively demonstrated that the children’s best interests require that the parent be deprived of custody. Dunn v. Dunn, Tex.Civ.App., 217 S.W.2d 124 (writ dismissed); Longoria v. Longoria, Tex.Civ. App., 324 S.W.2d 244 (writ dismissed); Bradley v. Bradley, Tex.Civ.App., 199 S.W. 2d S45.

It is to be noticed that the court first granted the appellant custody of the children and also that they reside temporarily in Runnels County. The Deaf Smith County Welfare Board could not look after the welfare of these children while they were in Runnels County and no showing that any of the members knew or could know anything about the welfare of the children only from reports made by members of a board in Runnels County. All of the reports from Runnels County were that the children were well cared for in every respect. We are further of the opinion, and so hold, that the Welfare Board was created to deal with matters concerning defective, illegitimate, dependent, neglected, and delinquent children and not created for the purpose for which the court attempted to use it as was done in this case. Article 695a, Vernon’s Texas Civil Statutes. There is not a line of evidence in any way to show one thing derogatory against this appellant and there certainly is no evidence that any of these children were defective, illegitimate, dependent, neglected, or delinquent and the court never at anytime found any of those conditioñs to exist.

We are aware of the fact that we may not render judgment contrary to that of the trial court that was rendered on sufficient evidence. Where there is no evidence that the best welfare of the children will be best served by placing them with someone other than the mother, and the undisputed evidence that they are being well cared for in every way while in the possession of their mother, we think it is error to place custody in someone other than their mother. Since there are no pleadings or evidence in this case to even suggest that this appellant was not a proper parent to have her children but to the contrary the undisputed evidence shows she is worthy in every respect to have the children in her custody, we think the court abused his discretion in placing the children in the custody of the Welfare Board. It is stated in the case of Davis v. Sears, Tex.Com.App., 35 S.W.2d 99 by the Commission of Appeals as follows :

“Under the common law, as well as the statute law of Texas the parents have the natural right to the custody and control of their child, and, in case of the death of one parent, the surviving parent has the right to its custody, Castro v. Castellanos (Tex.Com.App.) 294 S.W. 525. But the parents’ right to the custody of their child, however, is not absolute, but is subject to judicial control, when the interest of the child demands it, and must yield, where the real and permanent interest of the child demands a different disposition.
“But the exercise of this judicial control, antagonistic to the right or control which the law gives to the parents of the minor, can only be exercised where the testimony in the case shows either the unfitness of the parents, or their incapacity, or any other condition, the legal effect of which would be to demonstrate that the best interest of the child would be subserved by giving its custody to another than the parents. As a basis for the exercise of judicial control over the minor, in the absence of pleading and proof, that the parents are unfit to have the care and custody, of their child, as in this case, there must be pleading and proof, to the effect that the parents have voluntarily relinquished their natural and statutory right to have this care and custody.”

We are of the opinion, and so hold, that the trial court erred in refusing to dismiss the divorce proceedings when appellant sought a non-suit when appellee had not sought any affirmative relief and no decision had been made. We are of the further opinion, and so hold, that under this record the trial court abused his discretion and erred in placing the custody of the children in the Deaf Smith County Welfare Board instead of appellant. The case is therefore reversed and ordered dismissed.