author: DENTON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Kenneth Spriggs STEADMAN et al., Appellees.
    No. 7707.
    Court of Civil Appeals of Texas. Amarillo.
    April 24, 1967.
    Rehearing Denied May 29, 1967.

      Underwoos, Wilson, Sutton, Heare & Bery, Amarillo, R. A. Wilson, Amarillo, of counsel, for appellant.
    Gordon, Gordon & Buzzard, Pampa, Ross N. Buzzard, Pampa, Gibson, Ochsner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, of counsel, for appellees.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Judgment was rendered on the jury verdict in favor of the claimant for total and permanent incapacity benefits and certain medical expenses. The insurance carrier has appealed.

Steadman was employed by B ornan-Chase Construction Company as a pipe-fitter. On April 5, 1964, while he was bending over a pipe, a grinder “got away” from him and struck him in the face. He was unconscious for some thirty minutes before being taken to the hospital. The treating doctor diagnosed his injuries as a fractured nose, fracture of the frontal bone and multiple abrasions about the face and neck.

Appellant’s first group of points of error urge the law question of “no evidence” and the sufficiency of the evidence to support the jury’s'findings that the April 5, 1964 injury was the producing cause of Steadman’s total disability; that the date of the injury was the beginning of such total and permanent incapacity; and that such disability was permanent. In addition to the testimony of Mrs. Steadman and her daughter by a former marriage, and a fellow worker, appellee presented the medical testimony of Dr. Lowery, the original treating doctor, Dr. Wheeler, Dr. Pennal, a psychiatrist who treated Steadman and Dr. Clawson, a psychologist. Steadman remained in the hospital two days after the injury where his fractured nose and frontal bone and lacerations were treated. Immediately upon his release he complained of severe headaches and blurred vision. His wife first noticed he had a "memory problem” the first night in the hospital. He returned to his job some two days after being released from the hospital, and worked for ten days when his employment was terminated by a reduction of the working force. He worked for three days in May and eight or nine days in June of 1964. In the meantime he complained of severe headaches and was treated by Dr. Hays and Dr. Norman Wright, a nose specialist. He was examined by Dr. Pennal, a psychiatrist on June 18, 1964. Dr. Pennal placed appellee in the hospital on July 6 where he remained approximately one week. He was then transferred to a clinic for mental patients. Over a period of 83 days in the clinic, ap-pellee received 27 shock treatments.

Steadman’s wife and step-daughter testified his memory began to worsen after the injury until he was unable to recognize his own children and old friends; and he became belligerent and was sensitive to people. They both testified to the changes in his disposition and outlook. Dr. Pennal, testifying by deposition, told of taking ap-pellee’s case history which consisted of complaints of poor memory, severe headaches, loss of feeling in the right leg and failing vision. The doctor’s neurological examination was essentially normal except for parathesia of the right calf and a memory disturbance. The psychiatric history revealed much depressive symptomatology, included an incapability to concentrate and make decisions; and “some hopelessness in facing the future and also much suicidal pre-occupation”. After Steadman was released from the clinic on September 26, 1964, Dr. Pennal continued to see appellee and he continued to have complaints of headaches and faulty memory. It was Dr. Pennal’s opinion the depressive disorder was brought on by or precipitated by the April 6 accident. It was his further opinion that if the same symptoms were present at the time of the doctor’s deposition, “he will not make much improvement”. On cross-examination, the doctor testified it was possible to have personality changes, failing memory and headaches from organic brain damage, but he found no such organic brain damage in his tests of appellee. He testified that his findings of appellee’s symptoms were consistent with both the injury and brain tumor, but in his opinion, with his knowledge of the case history, the brain tumor was improbable. He conceded shock treatments can and do affect patient’s memory, but such memory loss would not continue over so long a period as in the case of appellee. Dr. Clawson, the psychologist who is experienced in psychological testing tested appellee. His tests revealed substantially the same mental symptoms as those found by Dr. Pennal. Although admittedly not a medical doctor, Dr. Clawson testified his tests and observations of ap-pellee indicated a recent brain damage, and at another point he stated appellee’s condition was “probably mental”. Other doctors subsequently treated appellee and their testimony was generally consistent with that of the doctors previously referred to.

Appellant challenges the medical testimony, particularly that of Dr. Pennal, to support the jury findings that the accidental injury was the producing cause of the total disability, its permanency and the finding such disability began on the date of the injury. Appellant does not deny ap-pellee suffered a compensable injury, but the causal connection from the injury of April 6 and the subsequent treatments by Dr. Pennal are urged. The argument is that since the testimony is clear the symptoms of appellee are compatible with both the injury and a brain tumor, the evidence does not support the jury findings. Appellant cites Houston Fire & Casualty Insurance Co. v. Biber (Tex.Civ.App.) 146 S.W. 2d 442 (Judgment Correct) among others for the rule “[wjhere the evidence shows that a particular result may probably have occurred by reason of several different causes, and it is not more reasonably probable that one of the causes was operative rather than the others, a finding of casual relationship between the result and a particular cause cannot be sustained.”

In determining the “no evidence” points we must consider the evidence favorable to the issue and disregard all evidence which1 is adverse and contrary to the favor able evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. Although Dr. Lowery, the original treating doctor, did not detect brain damage during his initial treatment, he testified a jsevere blow across the face like that receivéd by appellee frequently causes complications to the central nervous system. Both Dr. Pennal and Dr. Wheeler testified that in their opinion appellee’s injury was a producing cause of his disability. The wife and step-daughter told of his continuing severe headaches and the drastic change in his ¡personality and behavior as well as his loss of memory some three months prior to the first shock treatments administered by Dr. Pennal. Neither Drs. Pennal nor Wheeler had known of cases where shock treatments had affected loss of memory more than six or seven months. Appellee’s headaches and loss of memory and personality changes had extended to the time of the trial, some two years after the accident and nineteen months after the shock (treatments were terminated. The wife hkd known of no previous serious complaints of headaches and no loss of memory prior to the injury. Appellee testified briefly but because of his loss of memory added very little to the evidence. He testified his head “hurt all the time. I don’t know what it is to be without it and * * * excitement or exertion until it is almost unbearable.” In answer to a question if he had a memory problem he replied, “Well, I could answer that in several ways, if you would like. I don’t ever see any old movies on television. I never see anybody I know. It is a complete strange world.”! Appellant offered no testimony at the trial. After reviewing the evidence most favorable to the verdict we are of the opinion there is ample evidence to support the findings that the accidental injury was the producing cause of Steadman’s total disability, that such disability began on the date of such injury; and such disability is permanent.

There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury which caused total and permanent disability. Texas Employers’ Insurance Association v. Smith (Tex.Civ.App.) 374 S.W.2d 287. Liberty Universal Insurance Co. v. Gill (Tex.Civ.App.) 401 S.W.2d 339 (Ref. N.R. E.). The duration and extent of disability received from injury is at best an estimate, which must be determined by the trier of the facts from all the pertinent evidence before it. The Insurance Co. of Texas v. Anderson (Tex.Civ.App.) 272 S.W.2d 772. (Ref. N.R.E.). 63 Tex.Jur.2d, page 515, Workmen’s Compensation, Section 461. After reviewing the entire record and considering the evidence which supports the findings complained of and also that which is contrary or adverse thereto, we cannot say such findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant next contends the hypothetical question propounded to Dr. Wheeler was not supported by the evidence in at least four particulars. The contention is there was no evidence to support the assumption Steadman had not previously had headaches or loss of memory and dizziness prior to the injury; that he had worked as a foreman and had foreman capabilities; and that psychological tests revealed a physical rather than a mental problem. Based on these and other assumptions in the hypothetical question, Dr. Wheeler stated the opinion: “It is more likely that he has an organic brain lesion”.

A hypothetical question should be so framed as to recite the facts relative to forming an opinion, however, the hypothetical question may assume facts which the evidence fairly tends to prove, although they may not have been clearly established. Texas Employers’ Insurance Association v. Lovett (Tex.Civ.App.) 19 S.W.2d 397 (Writ Ref.). McCormick and Ray, Texas Law of Evidence, Vol. 2, Section 1403. There was testimony tending to prove the elements stated in the hypothetical question. Mrs. Steadman, in response to an inquiry if her husband had complained of headaches prior to the accident, stated “not more than one usually is in ordinary * * Both Mrs. Steadman and her daughter detected his loss of memory soon after the accident and testified to the marked difference in his personality and behavior around people. Steadman was described as a strong, healthy, pleasant man prior to his injury. Mr. Buckley, a fellow employee of Steadman, described his job as “co-ordinator for all the repair in the plant”. He handled all repair work orders for the plant and allocated the repair jobs to be done. As far as these repairs to the plant were concerned he stated Steadman “would give orders to the foreman, and he had to have quick judgment to process these work orders in the office”. The remaining element objected to was the assumption the psychological tests revealed a physical rather than a mental problem. Dr. Claw-son stated at one point in his testimony he determined Steadman’s problem was “probably mental”; and later he indicated certain interpretations of Steadman’s performance was “one of the signs of brain damage * * * recent brain damage”. Dr. Clawson was not a medical doctor and he admitted his limitations in this field. We think this testimony set out amply supports that element of the hypothetical question. Considerable latitude is permitted in the propounding of hypothetical questions to expert witnesses, and the form and wording of such questions is left largely to the discretion of the trial court. Foreman v. Texas Employers’ Insurance Association, 150 Tex. 468, 241 S.W.2d 977. There was no error in the hypothetical question propounded.

Dr. Pennal took a case history from Mr. Steadman. Mrs. Steadman accompanied him. In response to an interrogatory if the doctor took into consideration information related to him by Mrs. Steadman, Dr. Pennal replied “perhaps”. Appellant concedes that generally the statements of patients, made to a physician for the purpose of making a diagnosis, is admissible as an exception to the hearsay rule; but contends the rule is not applicable to statements of Mrs. Steadman. It is not shown what she might have told the doctor, and it is uncertain to what extent he relied on whatever she might have said. We find no merit in appellant’s contention.

Appellant next complains of the trial court’s definition of “producing cause”. The court defined “producing cause” as “an efficient, exciting and contributing cause which in a natural and continuous sequence produces disability”. Appellant contends the definition is erroneous in that it did not include the requirement “to be a producing cause, the cause relied upon as a producing cause must be one without which the disability claimed would not have existed”. Appellant concedes this same contention was rejected in connection with the identical definition in Traders & General Insurance Co. v. Rooth (Tex.Civ.App.) 268 S.W.2d 539 (Ref. N.R.E.). However, appellant distinguishes the case at bar in that the definition does not refer to or account for the effects of the shock treatments given appellee. The definition given by the trial court correctly presents the proper concept of producing cause under the Workmen’s Compensation law. See also Travelers Insurance Co. v. Johnson (Tex.Civ.App.) 84 S.W.2d 354. (Dismissed.)

Appellant next urges that the usual manner of submitting the special issues concerning whether or not the injury of April 6, 1964 was a producing cause of total and permanent disability beginning on the date of the injury deprived the jury of the opportunity to find the accidental injury was the producing cause of some part of Stead-man’s disability after April 6, 1964. The argument is the jury could have found, if given an opportunity, that the subsequent shock [treatments were related to Stead-man’s disability. There were no pleadings and requested special issues to submit such a defehse. Having found that the definition of “producing cause” was correctly submitted, we overrule appellant’s contention. !

The jury found that Steadman had not worked for at least 210 days of the year immediately preceding his injury at his employment. Steadman had been employed as a pipe-fitter for Boman-Chase Company for approximately six days prior to his injury. Mrs. Steadman testified that prior to this ^ employment he had been employed by others as a mill-wright. Appellant takes the position that the two types of work are substantially the same. The wife, the only witness1 who testified on this matter, described the two jobs as follows:

“Q. All right now, by the way, do you 'know what a millwright does?”
“A. Yes, they work on pumps or most I anything in plants, engines, motors, any of the maintenance in the plants.”
“Q. [Do you know what a pipefitter does?”
“A. [Well, they set pipes, tubing and if ' they are more qualified they are instrument fitters, and my husband ¡was an instrument fitter.”

According to this testimony the two jobs were different. There is no evidence to the contrary. We think the evidence supports the jury finding. The parties stipulated another pipefitter in the area had worked the required number of days and the wages he had received.

! By the last three points of error, appellant attacks the awarding of medical and hospital expenses. In response to special issiies, the jury found the Northwest Texas Hospital charges and Dr. Pennal’s medical services were necessarily incurred as the result of the injury; that such services were reasonably necessary to give ap-pellee relief from the effects of the injury; and that such charges were reasonable. Again appellant says these issues required the jury to find that either all or none of these hospital and medical services were the result of the injury. Having held the evidence supports the finding that the accident of April 6, 1964 was the producing ■cause of appellee’s disability, we conclude this contention cannot be sustained. The jury rejected appellant’s contention the shock treatments contributed to appellee’s ■disability. We think the record supports these findings.

Appellant next asserts the medical and hospital expenses are not recoverable, because it was not shown nor found that appellee requested appellant to furnish the hospital and medical services, nor that .appellant refused, failed or neglected to furnish them within a reasonable time. It was admitted that appellant was timely given notice of the injury. Article 8306, Vernon’s Ann.Tex.Civ.St., Section 7, provides in part: “If the association fails to •so furnish reasonable medical aid, hospital services, nursing, chiropractic services and •medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said •medical aid, nursing, hospital services, chiropractic services, and medicines at the cost .and expense of the association.” (Emphasis added.) Section 7 does not require the •claimant to request the insurance carrier to furnish such medical services after proper notice of the injury has been given. In interpreting this same section the court in Trinity Universal Insurance Co. v. Farley (Tex.Civ.App.) 408 S.W.2d 776 (N.W.H.) used the following language: “We think that the provisions of Section 7 and the decision construing it clearly shows that the intent, of the law is that the carrier has the responsibility of furnishing all reasonable and necessary medical care for any com--pensable injury under the Texas Workmen’s Compensation law after proper notice thereof has been given”. See also Travelers Insurance Co. v. Hernandez (5th Cir.) 276 F.2d 267 and United States Fidelity & Guaranty Co. v. Camp (Tex.Civ.App.) 367 S.W.2d 952 (Ref. N.R.E.).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Mary RIDER, Guardian of the person of minors Oscar Garcia, Armando Garcia and Martina Garcia, and as Administratrix of the Estate of Dora Noriega Garcia, Deceased, Appellant, v. Fred C. REEDER, Administrator of the Estate of Dora Moor, Deceased, Appellee.
    No. 292.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 4, 1967.
    Rehearing Denied May 25, 1967.

      Virgil Howard, of Wade & Howard, Corpus Christi, for appellant.
    J. M. Burnett, of Lewright, Dyer & Redford, Corpus Christi, for appellee.
   OPINION ON APPELLEE’S MOTION FOR REHEARING

GREEN, Chief Justice.

The opinion of the Court delivered April 6, 1967, is withdrawn, and the following is substituted therefor.

A venue case. This suit was filed in the district court of Nueces County, Texas, by appellant as Guardian of the persons and estates of three minors, and as Administra-trix of the Estate of Dora Noriega Garcia, deceased, complaining of Fred C. Reeder, Administrator of the Estate of Dora Moore, deceased. The petition alleged that defendant Fred C. Reeder has been appointed Temporary Administrator of the Estate of Dora Moore by the County Court of Kle-berg County, Texas, and that Reeder is a resident of Nueces County. The suit is in tort for damages based upon an automobile accident which occurred April 19, 1965, in Kenedy County, Texas, the two vehicles involved being driven at the time by Dora Moore and by Mario Garcia, father of the minor plaintiffs. Both of the drivers were killed as a result of the accident.

Appellee filed a plea of privilege in which he alleged that Fred C. Reeder, Administrator of the Estate of Dora Moore, deceased, was riot at the time of the filing of the suit or service of citation and is not now a resident of Nueces County, and that at all such times the residence of such defendant was Kleberg County, Texas. Appellant controverted this plea, alleging that at all such times defendant was and is now a resident of Nueces County.

Reejder was the only witness at the venue hearing. He testified that he is the Administrator of the Estate of Dora Moore, deceased, and that he has resided in Nueces Country since 1945, is a practicing lawyer with his office in Corpus Christi, and that he was such resident when this law suit was filed and has been at all times since then. This was the only evidence introduced. The pjea of privilege was sustained, and the case was ordered transferred to the district court of Kleberg County.

On this appeal, appellant relies for reversal | on the general rule fixing venue in the county of the residence of the defendant, and argues that there is no statute or other provision of law which fixes the residence; for venue purposes of a defendant administrator in the county in which the administration proceedings are pending. Appellee, on the other hand, contends that the official residence of Fred C. Reeder in the capacity in which he was sued is in the county where the administration is pending, and not within the county of his personal residence, and that for such reason venue of this¡ cause was properly removed to Kle-berg County.

Prior to the recodification of the statutes in 1925, subd. 6 of Art. 1995, Vernon’s Ann. Tex.St;, provided that suits against an executor,; administrator or guardian as such to establish a money demand against the estate must be brought in the county in which such estate is administered. In the 1925 ijecodification, the term must was changed to may so that such provision is no longer mandatory, but is merely permissive at plaintiffs’ option. Vela v. Shacklett, Tex.Civ.App., 1 S.W.2d 670; Daniel v. Jones, Tex.Civ.App., 103 S.W.2d 437; Key v. Alamo Nat. Co., Tex.Civ.App., 62 S.W.2d 1002, writ dism.; Quinn v. Home Owners’ Loan Corporation, Tex.Civ.App., 125 S.W.2d 1063; Steinbach v. Hearne, Tex.Civ.App., 278 S.W.2d 285.

In the absence of a statute which specifically establishes mandatory venue in actions against personal representatives of an estate as such, ordinary venue rules apply. We have found no Texas statute or rule of law which designates any official residence for venue purposes for executors or administrators. Appellee cites as authority for his position the case of Estate of Garrett v. Gay, Tex.Civ.App., 392 S.W.2d 565. Although the fact situation in that case is somewhat similar in principle to that in the instant case, the plaintiff in his controverting affidavit depended for venue on certain exceptions to Art. 1995 (Nos. 4 and 29a) which contentions, according to the opinion, were not supported by the evidence. It was on such account that the appellate court ordered the venue as to the Estate changed to the county where the estate proceedings were pending. This is shown by the court’s reliance on Gilley v. Morse, Tex.Civ.App., 375 S.W.2d 569, wherein it was held that since plaintiffs had failed to prove by competent evidence that they had a bona fide cause of action against the resident defendants the case should be transferred to the county of the residence of the defendant pleading his privilege.

It was not necessary in our case that plaintiff establish any of the exceptions specified in Art. 1995; it was only essential that she prove the residence of the defendant in the county where the suit was brought. In view of the position taken and alleged in the controverting affidavit and on appeal by the plaintiff in Estate of Garrett v. Gay, we feel that such case is not authority in support of the position taken by appellee in the instant case.

Appellee also cites Dowdy v. Franklin, 203 Va. 7, 121 S.E.2d 817, 93 A.L.R.2d 1194 as holding that the official residence of an administrator of an estate for venue purposes in Virginia is in the county wherein the administration proceedings are pending. This point is discussed in the article following the opinion in 93 A.L.R.2d 1199 et seq., and a number of cases holding with and against the decision in Dowdy are annotated. We do not believe that Dowdy represents the Texas rule on the subject.

Appellee also asserts, as its second counterpoint, that the judgment should be affirmed because plaintiff did not prove that the administrator was duly appointed, was qualified, that the estate was currently pending, or that the order appointing him authorized him to defend the action. Ap-pellee cites in support of his contention Anderson v. Huie, et al., Tex.Civ.App., 266 S.W.2d 410. There, plaintiff sued defendant individually and as independent executrix of the estate of Morris C. Huie for attorney fees. The suit was filed in Dallas County, where the estate was being administered. Defendant filed a plea of privilege to be sued in Cherokee County, where she resided. Plaintiff controverted on the ground that his suit was against an executrix as such, hence under subd. 6 of Art. 1995, the suit may be brought in the county where the estate is being administered. The appellate court held that the venue facts required to be proved under subd. 6 are (1) that the suit is against an executrix as such to establish a money demand against the estate and (2) that the suit was brought in the county in which the estate is administered, and upheld the trial court’s order sustaining the plea of privilege because the plaintiff on the venue hearing did not discharge the burden of proving that the estate was still under administration at the time the suit was filed. Both trial court and appellate court held that the venue of the case was properly in the county where the executrix actually resided.

In the instant case, plaintiff did not rely for venue on any of the exceptions to Art. 1995, but plead and proved that the suit was filed in the county where the defendant administrator actually resided. That was the only venue fact at issue, and under her pleadings, the only venue fact necessary for plaintiff to establish. On the trial on the merits, plaintiff’s burden as to the matters set out in appellant’s second counterpoint will be considerably greater. Fenimore v. Youngs et al., 119 Tex.Com.App. 159, 26 S.W.2d 195, cited by appellant.

We hold that on the venue hearing, the undisputed facts established plaintiff’s right to maintain the suit in Nueces County.

The judgment is reversed, and rendered for appellant overruling defendant’s plea of privilege, and retaining venue of the case in the district court of Nueces County, Texas.

Reversed and rendered.


author: MASSEY, Chief Justice.

text:
    Ruby Lucille WEICHER, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 16823.
    Court of Civil Appeals of Texas. Fort Worth.
    April 28, 1967.
    Rehearing Denied May 26, 1967.

      Mullinax, Wells, Mauzy, Levy & Richards, and John E. Collins, Dallas, for appellant.
    Stone, Tilley, Parker, Snakard, Law & Brown, and Gary Cole, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Workmen’s compensation case. The incapacity for which claim for compensation benefits were prosecuted rested upon alleged “heat exhaustion”.

At conclusion of claimant’s evidence the trial court granted motion of the defendant insurance company to withdraw the case from the jury and render a “take nothing” judgment.

The only evidence in the record which purported to establish the fact that claimant actually sustained “heat exhaustion” was through notation of the treating physician on the face of the hospital records that such was his diagnosis. The hospital records were properly admitted under Vernon’s Ann.Tex.Civ.St. Art. 3737e, “Memorandum or record of act, event or condition”.

The state of the record is such that for purposes of testing the sufficiency of the particular entry on the hospital records which were admitted — we are obliged to treat Dr. Beyer’s diagnosis of “heat exhaustion” as competent evidence to prove the fact. Travis Life Insurance Company v. Rodriguez, 326 S.W.2d 256 (Austin Civ.App., 1959, writ ref. n. r. e. w/opinion at 160 Tex. 182, 328 S.W.2d 434). Since the trial court granted the insurance company’s motion on the theory that claimant had not proven a prima facie case, the insurance company was never put to the task of showing that upon demonstrable medical facts the aforesaid diagnosis was an opinion which would be the subject of genuine dispute between doctors. Had it become necessary the insurance company may have had available evidence which would have demonstrated such. But it did not become necessary. We repeat, therefore, our opinion that the diagnostic entry of Dr. Beyer on the hospital records operated as evidence sufficient to establish, prima facie, that the claimant was suffering from “heat exhaustion”. Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.1966). See also West, Opinion Entry Problems in Medical Records, 19 Baylor Law Review 122 (1967).

We are nevertheless of the opinion that the trial court correctly withdrew the case from the jury and rendered judgment for the insurance company. We believe it obvious from the record that claimant failed to show that she was subject to a greater hazard of heat exhaustion than the general public at the time and place where she allegedly experienced such. We furthermore believe that the record does not contain evidence of probative force and effect to establish that the disability claimed was the result of such heat exhaustion.

Claimant testified that at the time and place of her heat exhaustion the “most strenuous thing she had to do was stand up”. Therefore any physical exertion on the part of the claimant which could have played a part in her experience may be ruled out. Simplified, therefore, we may view the circumstances which claimant believes resulted in her heat exhaustion in the light of other members of the public exposed to the same condition at the same time and place. There were such, both in the form of co-workers and customers. Ventilation was provided in the form of pedestal fans moving the air, admittedly the only form of air conditioning. The temperature was between 84 and 87 degrees Fahrenheit. Clearly claimant was not engaged in the performance of duties of her employment which subjected her to a greater hazard from the act of God responsible for her injury than applied to the public. In such circumstances her heat exhaustion may not be characterized as an “injury sustained in the course of employment” and therefore would not be compensable. See 62 Tex.Jur.2d p. 651, et seq., “Workmen’s Compensation”, IV, “Compensable Injuries”, Sub. D, “Acts of God”, Secs. 85, “In general”, 86, “Sunstroke”, and 87, “Heat exhaustion”.

Relative to the matter of general disability, to which claimant was relegated under her pleadings, we of course would be obliged to look to the incapacity, if any, resultant after the first week following the date of injury. Claimant admitted the alleviation within three or four days of all symptoms with the exception of a swelling in her left arm. There was no evidence which showed any causal connection between the condition in the arm and heat exhaustion. There was no medical evidence. In other words the record contains no expert opinion serving to establish causal connection of heat exhaustion with claimant’s general debility or arm condition. Under circumstances of the case the requisite proof should have been by expert testimony. Without such the jury or other trier of the facts would have neither the right nor duty to make a factual determination. In other words, failing the establishment of the fact by expert testimony a prima facie case in such respect is not proved. Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Austin Civ.App., 1947, writ ref. n. r. e.); National Life and Accident Insurance Co. v. Shern, 389 S.W.2d 726 (Austin Civ.App., 1965, no writ hist.).

Judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    W. A. MADDOX, Appellant, v. Jack WORSHAM et al., Appellees.
    No. 7710.
    Court of Civil Appeals of Texas. Amarillo.
    May 1, 1967.
    Rehearing Denied May 29, 1967.

      Clayton & Clayton, Amarillo, Cleo G. Clayton, Jr., Amarillo, of counsel, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, Howard F. Saunders, Amarillo, of counsel, for appellees.
   NORTHCUTT, Justice.

This is an action for damages based on fraud and deceit in a real estate transaction. J. L. Worsham, J. R. Walsh, Jr. and V. L. Watkins, as plaintiffs, brought this suit against W. A. Maddox, as defendant, for damages which the plaintiffs contend resulted from fraud and deceit practiced on the plaintiffs by defendant when plaintiffs leased a certain ranch in New Mexico from the defendant and a breach by the defendant of the lease provisions in failing to deliver the plaintiffs full and exclusive possession of the land which defendant had contracted to deliver to the plaintiffs. The defendant filed a general denial and denied that he expressly advised the plaintiffs or any of them that the Maddox Ranch definitely contained 30,000 acres or more and further pleaded that he never at any time breached any of the terms of the lease. The defendant filed a cross-action to have the lease cancelled and terminated and defendant recover all rentals accruing and owing to defendant. The lease contract was cancelled by agreement of the parties with the agreement that neither party waived their right to any action that they might have.

The case was tried to the court without a jury. Judgment was granted in favor of the plaintiffs for the sum of $25,207.88, and denied the defendant any relief upon his cross-action. From that judgment the defendant perfected this appeal. The parties will hereinafter be referred to as they were in the trial court.

The defendant requested the trial judge for separate findings of fact and conclusions of law. The trial court made and entered such findings and conclusions as follows:

FINDINGS OF FACT
“1. A grass lease contract was executed and delivered, dated February 22, 1963, between W. A. Maddox, as lessor, and J. L. Worsham, J. R. Walsh, Jr., and V. L. Watkins, as lessees, leasing 30,000 acres of land, more or less, in Mora, Harding, and San Miguel Counties, New Mexico, to lessees.
“2. Plaintiffs paid Defendant the total sum of $64,000.00 rental under the February 22, 1963, lease, $17,100.00 under lease termination agreement between Defendant and Plaintiffs dated October_,
1965.
“3. The February 22, 1963, lease agreement between Defendant and Plaintiffs was terminated by an agreement dated October_, 1965, which was executed and delivered by all Plaintiffs and Defendant.
“4. Defendant, represented to Plaintiffs as a fact that his ranch, the Maddox Ranch, contained 30,000 acres or more, owned or leased by him, and would carry an average of 800 mother cows, and such representations were material representations.
“5. Defendant’s representations found in Finding 4 supra were false and Defendant knew he owned no more than 20,940 acres of land and had leased no more than 3,398 acres of land as his Maddox Ranch.
“6. Defendant knew that his owned and leased land in his Maddox Ranch would not carry an average of 800 mother cows.
“7. Defendant’s representations found in Finding 4 supra were made to induce Plaintiffs to execute and deliver the lease contract of February 22, 1963, and as representations of fact on which Plain-tiffsj could rely.
“8. Plaintiffs accepted as true and relied on Defendant’s representations.
“9. Defendant did not place Plaintiffs in scjle possession of the Maddox Ranch.
“10. Plaintiffs were damaged by Defendant’s false representations of fact and Defendant’s failure to put them in sole possession of the Maddox Ranch in the sum of $25,207.85.
“11. Intervenors have not been paid all commissions owed them by Defendant, and Defendant owes intervenors an $875,00 balance of commissions.
CONCLUSIONS OF LAW
“1. The ownership by Defendant of not more than 20,940 acres of fee land and hot more than 3,398 acres of leased land as the Maddox Ranch is a material acreage shortage under the lease agreement- of February 22, 1963, between Defendant, as lessor, and Plaintiffs, as lessees.
“2. The representations of Defendant to Plaintiffs and his acts and conduct leading to the execution of the February 22, 1963, lease agreement were an actual and legal fraud upon and against Plaintiffs.
“3.Í The failure of Defendant to place Plaintiffs in possession of 30,000 acres, more or less, of Maddox Ranch was a breach of Defendant’s lease obligations.
“4.! Plaintiffs have been damaged by Defendant’s fraud and breach of his lease obligations, and in the sum of $25,207.85, which amount and costs herein, plus 6% interest thereon from date of judgment, Plaintiffs are entitled to recover from Defendant.
“5. Intervenors are entitled to recover $875.00 additional commissions, as provided! in the February 22, 1963, lease agreement, their costs herein, and 6% interest thereon from date of judgment.”

The rights of the intervenors are not involved in this appeal.

The plaintiffs plead they sustained damages in the amount of $71,000 because of defendant’s false statements and failure to deliver exclusive peaceful possession of the land defendant purportedly leased to the plaintiffs. No exceptions were levied as to any of the pleadings. The lease contract provided that the defendant warranted that he was the owner of the property specified and had the right to lease it to the plaintiffs in quiet possession and would warrant and defend the plaintiffs’ possession against any and all persons whomsoever.

The only way we can determine under this record the basis upon which judgment was rendered is by considering the findings of fact and the conclusions of law. In Findings of Fact Nos. 9 and 10 it refers solely to the Maddox Ranch. It has no reference as to whether there was 30,000 acres or less in the ranch. The Conclusion of Law No. 3 holds the defendant’s failure to place plaintiffs in possession of 30,000 acres, more or less, of the Maddox Ranch was a breach of defendant’s lease obligation. That is not a holding that there was not 30,000 acres in the Maddox Ranch. Then Conclusion of Law No. 4 holds that plaintiffs were damaged by defendant’s fraudulent breach of his lease obligation in the sum of $25,207.88. Defendant’s obligation under the lease was that he warranted that he was the owner of the property specified and had the right to lease it to the plaintiffs. (Emphasis ours.) There is no question under this record but what defendant had let to other parties a portion of the Maddox Ranch prior to entering into the lease here involved and such parties were in possession of such land and were pasturing the same and defendant did not have the right to lease that portion of the ranch to the plaintiffs because he had previously let it to others. There is an abundance of evidence to sustain such holding. The defendant did not deliver possession to the plaintiffs of a portion of said ranch as he had contracted to do but could not comply with the lease because he had fraudulently contracted to do something he could not do. We believe under this record judgment was granted against defendant because of his fraudulent representations among other fraudulent representations as to water on the ranch and the number of cattle the ranch would support that he could and did deliver to the plaintiffs full possession of the Maddox Ranch consisting of 30,000 acres and that he knew such representations were false. The damages as proven by the evidence because of such failure to perform as to the acreage and the representations as to the number of cattle the ranch would support would justify a finding of far in excess of that found by the trial court.

It seems to be the contention of defendant that the trial court erred in holding the defendant made fraudulent representations and breached his contract because there was no evidence of probative value that the ranch had less than 30,000 acres or that plaintiffs relied upon any representations of the defendant. The contract designates 30,000 acres were being leased. The undisputed record shows and so found by the court that the defendant did not have 30,000 acres to lease to the plaintiffs. There was evidence the lease was based upon the price of $1.00 per acre. There was evidence that before the lease was entered into plaintiffs informed defendant they wanted a ranch to run approximately 800 head of mother cows; and unless this ranch would support that number, they would not be interested in renting the ranch and that defendant assured the plaintiffs that the ranch would carry 750 to 900 mother cows. Plaintiff Worsham testified before entering into the lease that he was vitally interested in knowing what the carrying capacity of the ranch was and what defendant’s experience had shown it to be and he asked defendant what the most mother cows that he, the defendant, had carried on the ranch and defendant’s answer was in the neighborhood of 600 head besides steers and various other types cattle operations on it. Plaintiffs entered into the lease and purchased 400 head of mother cows defendant had on the ranch and then bought 300 head more and moved them on the ranch. Worsham further testified he asked defendant as to the water condition and was told there was no water problem; that Romero Canyon pasture had live water on it; that it had never been dry; that the Water Canyon pasture had never been dry — had live water; that they had twelve miles of the Canadian River with live water; that he had built forty some odd dams on the ranch; and that they had ample water in every pasture. After taking possession of the ranch, Wor-sham discovered other persons owned some of the land in the ranch and others were running cattle on a portion of it. Worsham further testified after buying the extra 300 head of cattle on the ranch he found Esquebel and Gallegas cattle on the river and he was compelled to seek additional pasture and move 200 head to the Wagon Mound that cost him $6,000; that they ran out of water as they only had three miles of Canadian River water; there were less than twenty tanks on the ranch and plaintiffs had to finally sell some of the cows at a great loss because of the insufficiency of the grass because of shortage of acreage and others running cattle thereon.

It is further the defendant’s contention that plaintiffs did not plead nor prove the proper measure of damages as required by Article 4004, Vernon’s Ann.Tex.St, by proving the difference between the value of the leasehold estate as represented and the value of the leasehold estate as delivered. As we view this record the plaintiffs especially brought this action to recover upon the fraud and deceit of the defendant as additional damages as are directly traceable to the wrongful acts complained of and which resulted therefrom.

Under this record the fraud was not discovered until after plaintiffs had taken possession of the lease property and expended large sums of money in purchasing additional cattle that the ranch was supposed to support as false represented by the defendant. Article 4004 affords no remedy at all to the plaintiffs of the false representations as found by the trial court concerning the realty where plaintiffs did not discover the falsity of the representations until after they expended money in an attempt to use such ranch. We are of the opinion plaintiffs herein based their action for damages on fraud both under Article 4004, V.A.T.S., and the common law action of fraud and deceit and not for breach of contract. It is stated in El Paso Development Company v. Ravel, 339 S.W.2d 360 (Tex.Civ.App.-El Paso, 1960, writ ref’d n. r. e.) as follows:

“We believe the law to be well established in Texas, as well as under general principles as to damages, that an injured party is entitled to recover in a tort action such damages as result directly, naturally and proximately from fraud. However, remote damages, or those which are too uncertain for ascertainment] or are purely conjectural, speculative or contingent, cannot be recovered. Connally & Shaw v. Saunders, Tex.Civ.App., 142 S.W. 975; Parker v. Solis, Tex.Civ.App., 277 S.W. 714; Bantuelle v. Jones, Tex.Civ.App., 52 S.W.2d 93.
“Bearing on the question of whether the statute (Art. 4004) superseded the common-law rule and provided an exclusive remedy for the recovery of damages in an action based on fraud in a real estate transaction, we believe this question has been settled by the case law of Texas, and that the answer is ‘No.’ ”

That case further held:

“Holding as we do that the liability of the maker of a false representation involving a transaction in land is not confined to the measure of damages fixed by the statute, but that the recipient thereof may also recover from such maker, regardless of privity, such additional damages as are directly traceable to the wrongful act complained of and which result therefrom, we believe the basic question presented by appellant’s Points 3 and 5, and Points 6 through 8, is the question of whether or not the total of the damages found by the jury is directly traceable to the false representation made by appellant, and resulted therefrom.”

There is sufficient evidence in this record to sustain the holdings of the trial court that equity requires relief and also to sustain the findings and holdings of the trial court. The court has found the acreage defendant represented he had and was leasing was short by several thousand acres. The lease provided for 30,000 acres, more or less. We notice in the record “more or less” has been underscored. It is stated in Arrott v. Smith, 225 S.W.2d 639 (Tex.Civ.App.-Austin, 1949, no writ) as follows:

“We think that here a deficiency of more than 100 acres of land is so material as to entitle appellee to relief. In such case it is well settled by the authorities in this state that when the sale of the land is by the acre and because of the mutual mistake of the parties as to the quantity of land conveyed, if there is a material deficiency in acreage, equity will afford relief even though the quantity of land conveyed is qualified by the use of the phrase ‘more or less.’ Franco-Texan Land Co. v. Simpson, 1 Tex.Civ.App. 600, 20 S.W. 953; Hart v. Daggett, Tex.Civ.App., 6 S.W.2d 143, 145; Evans v. Renfro, Tex.Civ.App., 170 S.W.2d 636, Er.Ref.W.M. See also annotations in 70 A.L.R., p. 368.”

The rule is well settled that the judgment of the trial court will not be set aside if there is any evidence of a probative nature to support it and that a Court of Civil Appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951) ; Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232 (1947); First State Bank of Temple v. Metropolitan Casualty Ins. Co. of New York, 125 Tex. 113, 79 S.W.2d 835 (1935), 98 A.L.R. 1256; Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 (1959); Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

We have carefully considered all of defendant’s assignments of error and overrule each and all of them.

Judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    BOCK CONSTRUCTION COMPANY, Appellant, v. DALLAS POWER & LIGHT COMPANY et al., Appellees.
    No. 16897.
    Court of Civil Appeals of Texas. Dallas.
    March 31, 1967.
    Rehearing Denied May 12, 1967.

      Esir Tobolowsky, Dallas, for appellant.
    Charles M. Solomon, Marion B. Solomon, W. Autry Norton, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant Bock Construction Company, hereinafter called Bock, sued appellees Dallas Power & Light Company and Austin Building Company, hereinafter called D. P. & L. and Austin, respectively, for damage ■caused by the seepage of water into the basement of a church which Bock had under construction.

In September 1965 Bock contracted with Episcopal Church of the Good Shepherd in Dallas, Texas to build a new sanctuary. Bock’s contract did not include the installation of light and power facilities. The •church entered into a separate contract with D. P. & L. to install said facilities. D. P. & L. entered into a contract with Austin to dig a trench leading to the church in which electric power lines were to be laid. This trench was approximately 200 feet long, 18 to 20 inches wide and varied in depth from about 3 feet to about 7 feet.

At intervals from September 17, 1965 through September 22, 1965 rains fell, the heaviest precipitation occurring on September 21, 1965 when 4.32 inches fell. The trench which had been left open and uncovered filled with water following the heavy rain of September 21, 1965. Water to a depth of about 12 to 16 inches accumulated in the basement, causing damage to electrical equipment.

In its original petition appellant alleges that water seeped from the trench into the basement of the church. Recovery is sought in the original petition on the ground of common law negligence on the part of appellees in leaving the trench open and uncovered, which negligence proximately caused the damage.

On the day the case went to trial appellant filed a trial amendment in which it enlarges its ground of recovery to include an allegation that appellees had violated Art. 7589a, Vernon’s Ann.Civ.St., by diverting the natural flow of the surface waters into the trench and thence into the church basement, causing the damage set out in appellant’s original petition.

The parties entered into this stipulation: “The amount of the entire damage to the Plaintiff is $527.96.” It will be observed that the stipulation does not say whether the damage was caused by water which seeped through subsoil into the basement from the trench dug by appellees, or by water which entered the basement from other sources.

It is undisputed that by digging the trench appellee Austin did divert the natural flow of some of the surface water so that water was impounded in the trench.

Other material facts are also undisputed. Three open areaways, or airways, measuring 10'x5', 9'9"x2' and 4'3"x2' were located at ground level beside the basement walls. The larger of these areaways, sometimes referred to as a mechanical well, was also used to carry equipment and other articles into and out of the basement. These open areaways drained by a 2-inch pipe into a sump in the middle of the basement floor. This sump or hole was 4 feet in diameter and 6 feet deep below the basement floor. Its purpose was to catch and hold water so that it would not reach the floor or walls of the basement. Pumps were available in order to empty the sump when the water in it reached a certain level.

There was an underground perforated pipe, called a French drain, around the outside of the basement walls at the floor level of the basement. The purpose of this French drain was to conduct seepage water into the sump above mentioned.

There was also a drain sleeve about 2 feet below the surface of the ground level which drained into a “pisano” sump a few feet away.

The original excavation by appellant for the construction of the church extended 7 to 10 feet around and beyond the basement walls. This area of the excavation had been refilled with dirt prior to the time Austin dug the trench in controversy.

A jury returned a verdict that (1) surface water which had collected in the ditch did flow, by way of subsoil drains, into the church basement; (2) such water was the proximate cause of the damage to the equipment involved; (3) the jury answered “No” to an issue inquiring whether it found from a preponderance of the evidence that Austin was negligent in leaving open the subject trench on September 18th and 19th; (4) conditional issue on proximate cause was not answered; (5) the jury answered “None” to an issue inquiring what amount of money, if any, it found would reasonably compensate plaintiff (appellant) for loss, if any, suffered as a proximate result of the flow of water from said ditch into the church basement (this issue was conditioned on an affirmative answer to Special Issue No. 2); (6) failure of plaintiff to cover the areaways involved was negligence, and (7) was a proximate cause of damage to the equipment involved; (8) failure of plaintiff to plug the pipe in the east wall of the basement was negligence and (9) was proximate cause; (10) failure of plaintiff to have sump pumps adequate to prevent the flooding of the basement was negligence and (11) was proximate cause.

The court rendered judgment based on the jury verdict that Bock take nothing by its suit.

Appellant Bock has briefed sixteen points on appeal and appellees have briefed twenty-two counterpoints. But in our opinion the jury’s answers to Special Issues Nos. 6 to 11 inclusive are decisive of the case. Their effect is to convict Bock of contributory negligence proximately causing the damage in question and for that reason recovery by Bock is precluded either on grounds of appellees’ common law negligence or of their negligence per se because of violation of the statute, Art. 7589a, V.A.C.S.

Our Supreme Court has said, “It is almost universally held that the violation of a statutory duty is negligence per se.” Burnett v. Fort Worth Light & Power Co., 102 Tex. 31, 112 S.W. 1040, 19 L.R.A.,N.S., 504 (Tex.Comm’n App., 1908, opinion adopted). And the Court held that contributor^ negligence is a defense which precludes a plaintiff’s recovery though the defendant may have been guilty of negligence per se by violating a statutory duty. This holding by our Supreme Court has often been followed in later cases. Rittenberry v. Robert E. McKee, Gen. Contractor, Inc., 337 S.W.2d 197, 202 (Tex.Civ.App., Dallas, 1960, writ ref. n. r. e.); Eizenman v. Jaynes, 33 S.W.2d 254 (Tex.Civ.App., Amarillo, 1930, no writ); Alexander v. Missouri K. & T. Ry. Co. of Texas, 287 S.W. 153, 155 (Tex.Civ.App., Waco, 1926, writ dismissed); Kansas City, M. & O. Ry. Co. of Texas v. McCunningham, 149 S.W. 420, 425 (Tex.Civ.App., Fort Worth, 1912, writ ref.); Marshall & E. T. Ry. Co. v. Petty, 134 S.W. 406 (Tex.Civ.App., 1911, no writ).

It has sometimes been said that when a violation of a statutory duty has been proved it is not necessary to prove negligence. And this is true in the sense that negligence is ordinarily considered to be inherent in a violation of a statutory duty — negligence per se — , hence it is not necessary to offer further evidence that the statutory violation was negligence, and it is not necessary to submit an issue inquiring whether the violation was negligence. It is necessary, however, to submit an issue as to proximate cause.

Appellant contends that one who violates the statute is strictly liable for the consequences — that is, that all the plaintiff has to do is show the violation by defendant of the statute, and that negligence on the part of defendant or contributory negligence on the part of plaintiff is immaterial. In support of this view appellant cites us to the opinion in Blocher v. McArthur, 303 S.W.2d 529 (Tex.Civ.App., Austin, 1957, writ ref. n. r. e.), in which the court refused to accept the defense of contributory negligence, citing 1 Am.Jur. 509. The Blocher case was cited in Burbridge v. Rich Properties, Inc., 365 S.W.2d 657 (Tex.Civ.App., Houston, 1963, no writ).

The strict liability doctrine for which appellant contends stems from the celebrated old English case of Fletcher v. Rylands, L.R. 1 Exch. 265, affirmed by the House of Lords, L.R. 3 H.L. 330, which held a mine owner strictly liable for damages due to escaping water, though the plaintiff, the adjoining landowner, may have been guilty of contributory negligence. The doctrine of Fletcher v. Rylands has been repudiated and rejected in Texas, Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 52 L.R.A. 293, 86 Am.St.Rep. 835 (1900); Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936); El Paso Elec. Co. v. Safeway Stores, Inc., 257 S.W.2d 502, 507 (Tex.Civ.App., El Paso, 1953, writ ref. n. r. e.); The Moran Corp. v. Murray, 381 S.W.2d 324, 326 (Tex.Civ.App., Texarkana, 1964, no writ) ; 1 Tex.Jur.2d 639. We are of the opinion that it should not govern our decision here.

In its points one to four inclusive and seven and eight appellant says that there is no evidence or there is insufficient evidence to support the jury’s answer of “None” to the damage issue and that appellant was entitled to a new trial because of the failure to award damages to appellant. There is evidence in the record which tends to show that water from the trench seeped into the church basement in sufficient quantity to have caused the damage. But there is also evidence that rain water from the roof entered the three open area-ways and into the basement and also that water entered through the French drain pipe into the basement in sufficient quantity to cause the damage. Further, there is evidence that the flooding of the basement was due to the inadequacy of the temporary pumps which were supposed to keep the water in the sump below the basement floor level. In our opinion there was sufficient evidence to support the jury’s answer of “None” to the damage issue. Appellant’s points one to four inclusive and seven and eight are overruled.

In its fifth and ninth points appellant says that the findings of the jury established a cause of action under Art. 7589a, V.A.C.S. which entitled it to judgment in the amount of $527.96. However, as we stated earlier in this opinion, the findings of the jury that appellant was guilty of contributory negligence which was a proximate cause of the damage precluded appellant from recovering judgment under either its common law negligence count or its statutory violation count. Appellant’s fifth and ninth points are overruled.

In its sixth point appellant contends that there is a conflict in the jury’s answer to Special Issue No. 5 and its answers to Special Issues Nos. 1 and 2. But such conflict, if it exists, has become immaterial because the jury’s findings of contributory negligence defeat plaintiff’s right to recover regardless of the conflict. Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (Tex.Com.App., 1939, opinion adopted); Dunn v. Sears, Roebuck & Co., 371 S.W.2d 731, 736 (Tex.Civ.App., Houston, 1963, ref. n. r. e.); Milburn v. Blum, 302 S.W.2d 671, 673 (Tex.Civ.App., Eastland, 1957, no writ); Rabe v. Lee, 239 S.W.2d 846 (Tex.Civ.App., San Antonio, 1951, no writ); McDonald, “Texas Civil Procedure”, § 17.31, Note 40, p. 1410.

In its tenth to sixteenth points inclusive appellant complains of the court’s action in overruling its objections to the form of Special Issue No. 5 and to the submission of Special Issues Nos. 6 to 11 inclusive, the contributory negligence issues. We have considered these points and overrule all of them except the thirteenth point.

In the last named point appellant objects to the form of submission of Special Issue No. 8 because it assumes that appellant failed to plug a pipe. Whether the pipe in question was plugged was a controverted fact question. However, the error was immaterial in the light of the jury’s answer to other contributory negligence issues.

It was undisputed that the areaways were not covered and that the sump pumps were not adequate to keep the water from flooding the basement. The court was not required to submit issues as to facts which were not in dispute. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956).

It is our opinion that the jury’s findings of contributory negligence preclude a recovery by appellant. The judgment of the trial court is therefore affirmed.

Affirmed.

ON REHEARING

Appellant has filed a strong motion for rehearing which has received our most careful consideration.

Though the cases we cited in our original opinion do not deal directly with Art. 7589a, Vernon’s Tex.Rev.Civ.Stat.Ann., they do deal with the principle of strict liability and the holding in the English case of Fletcher v. Rylands, which holding has been repudiated in the State of Texas. In deciding whether strict liability should be applied in cases coming within the statute we think the cases cited in our opinion i must be given serious consideration. In so saying we are aware that our Supreme Court in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936) stated that Art. 7589a was not pleaded and therefore was not applicable. But the Supreme Court did not say that its holding would have been different if the statute had been pleaded.

Be that as it may, our decision does not rest alone on our conclusion that the rule of strict liability ought not to apply in the application of Art. 7589a. Our decision rests also upon another ground which we fear was not made plain in our original opinion. In this case the jury held that the appellee-defendant was not negligent, but the appellant-plaintiff was negligent in three particulars, each of which was a proximate cause of its own damage. It is one thing to hold that an innocent property owner who is not in any way to blame for the damage he suffered may hold his neighbor to strict liability under the statute. It is quite another thing to hold that a property owner who is not himself innocent of blame for his own damages, but who is guilty of several acts of negligence each of which was a proximate cause of his own damages, may recover his said damages from an adjoining property owner under the theory'of strict liability though the adjoining property owner is entirely innocent of any negligence. This is in effect allowing a party to profit by his own negligence at the expense of a neighbor who is not negligent. We cannot bring ourselves to say that the negligent party is entitled to recover against the innocent party.

At the end of our opinion we said, “It is our opinion that the jury’s findings of contributory negligence preclude a recovery by appellant.” Our use of the term “contributory negligence” was not well advised. The jury did not find appellant guilty of contributory negligence. It simply found the appellant guilty of negligence.

We are aware of authorities holding that there can be no contributory negligence as such on the part of a plaintiff in the absence of primary negligence on the part of the defendant. 40 Tex.Jur. 2d 601. But there can be primary negligence on the part of a plaintiff which negligence was a proximate cause of plaintiff’s own injuries regardless of the existence of primary negligence on the part of the defendant. And such primary negligence on the part of the plaintiff will be a bar to his recovery of damages. St. Louis, B. & M. Ry. Co. v. Moss, 203 S.W. 777 (Tex.Civ.App., San Antonio 1918, no writ); Ripley v. Dozier Construction Co., 45 S.W.2d 661 (Tex.Civ.App., Austin 1932, no writ). That is the situation we have here if we were to accept our appellant-plaintiff’s contention that negligence on the part of appellee-defendant is not an element necessary to make out a cause of action under the statute. We repeat that the jury found appellant guilty of negligence, not contributory negligence. This finding itself becomes a finding of primary negligence on the part of appellant even if we rule out negligence as a factor in appellant’s cause of action against appellee. And it leads us back to our conclusion that a property owner guilty of primary negligence proximately causing his own damages ought not even under Art. 7589a to be allowed to profit by his own negligence.

Appellant relies on Burbridge v. Rich Properties, Inc., 365 S.W.2d 657 (Tex.Civ.App., Houston 1963, no writ) and Blocher v. McArthur, 303 S.W.2d 529 (Tex.Civ.App., Austin 1957, writ ref’d n. r. e). In the Burbridge case it appears that plaintiff was not charged with negligence.

In the Blocher case it was held that appellant would have had a cause of action against appellee under Art. 7589a without the necessity of alleging negligence, and that in view of appellee’s construction of a retaining wall appellant’s negligence in the manner of the construction of their apartment was not a defense to their cause of action against appellee. We have the greatest respect for our brethren who were on the Austin court at that time but we do not believe that their holding in the Blocher case should control our holding here.

In its motion appellant seems to stress the wording of Special Issue No. 2, which inquired whether the water from the ditch which flowed into the basement by subsoil drains was the proximate cause of the damage to the equipment in question. The jury answered in the affirmative. Perhaps in preparing the charge the use of the word the in the issue was an inadvertence. In any event the court expressly instructed the jury that there might be more than one proximate cause. There was no instruction and no issue as to sole proximate cause. We do not regard the use of the word the in the issue as equivalent to the submission of sole proximate cause.

Appellant’s motion for rehearing is overruled.

        . Article 7589a, V.A.C.S. is, in part, as follows :
      “It shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act in such manner as to damage the property of another, by the overflow of such water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned thereby, * * * ”


author: PRESLAR, Justice.

text:
    Clinton FULLER, Appellant, v. C. B. WAINWRIGHT et ux., Appellees.
    No. 5812.
    Court of Civil Appeals of Texas. El Paso.
    April 26, 1967.
    Rehearing Denied May 24, 1967.
    Ben A. Endlick, El Paso, for appellant.
    Hardie, Grambling, Sims & Galatzan and Malcolm Harris, El Paso, for appellees,.
   OPINION

PRESLAR, Justice.

This is a suit for injuries sustained by a passenger in an automobile against the driver! thereof which resulted when the automobile collided with a utility pole. At the conclusion of the plaintiff’s evidence, when he had rested his case, the court instructed the jury to return a verdict for the defendant. Plaintiff (appellant) is the husband of the passenger, Lula Fuller, and the driver-defendant, Valerie Wainwright, and hér husband are appellees.

Plaintiff’s cause of action is based on three allegations: That the driver-defendant (lj) negligently, carelessly and recklessly ¡ran into a pole; (2) negligently, carelessly and recklessly operated her car at an excessive rate of speed under the circumstances; and (3) negligently, carelessly and recklessly attempted to make a turn when the car was going at too great speed. In addition to a general denial, defendants pleaded the “guest statute”, Article 6701b, [Vernon’s Ann.Revised Civil Statutes of the State of Texas, as a bar to any recovery. In reply to defendant’s plea of Article| 6701b, plaintiff filed a supplemental petition alleging simply that plaintiff’s wife was not a guest in defendant’s car within the meaning of said Article, and that said Article! was not applicable to this case.

The evidence is that Mrs. Fuller and Mrs. Wainwright were employed at the same place of business, and that for the past year and a half they had been riding to work together two or three times a week. Most of the riding was done in Mrs. Fuller’s car, and only on three or four occasions! had the defendant, Mrs. Wainwright, taken her car. She resided nearer the place of employment, so that on the occasions when she drove, Mrs. Fuller would come to her house in her own car. There was no prior arrangement as to who would drive. On the morning of the accident, Mrs. Fuller arrived at the Wainwright’s in her car, but parked it and went with Mrs. Wainwright at her request. Neither ever paid any money to the other for the rides, and neither ever shared the other’s automobiles expenses. There is evidence of lunches being bought, but both ladies testified that the number each bought for the other was about equal, although Mrs. Wainwright testified she felt like she should buy Mrs. Fuller’s lunch because she rode with her so much.

Article 6701b provides:

“No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard for the rights of others.”

Appellant did not plead such acts of negligence as required by the statute, and in his brief before this court appellant quite candidly admits that only ordinary negligence on the part of the driver is established, and that he does not contend that gross negligence is involved. His position is that he has a cause of action against the driver outside of the guest statute; that there are two theories under which he can recover, the first theory being that the occupant-plaintiff paid for her transportation within the meaning of the statute, and the second being that a joint enterprise or venture existed.

We are of the opinion that plaintiff was not entitled to go to the jury on the theories now urged, for neither was pleaded, and there is no contention that the issues were tried by consent, nor were trial amendments proffered. As indicated above, plaintiff’s pleadings contained no allegations of gross negligence to take it out of the guest statute, and there was no pleading of the two theories now urged as making the guest statute inapplicable. In order to state a cause of action, it was incumbent on plaintiff to plead that his wife was not a guest as contemplated by the guest statute, or that she was a guest and the driver-defendant was guilty of acts of gross negligence. Jameson v. Sibert, Tex.Civ.App., 379 S.W.2d 86; ref. n. r. e.; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Rowe v. Rowe, Tex.Civ.App., 119 S.W.2d 194, err. ref. In Rowe v. Rowe, supra, this court upheld the sustaining of a demurrer to the plaintiff-guest’s petition for failing to allege that the guest was a passenger for hire. The case was stronger than the one before us, for it set forth compensation in the form of services in the event of car trouble, while the petition before us is entirely silent as to compensation. Likewise, in a case by this court, Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, error refused, the sustaining of a demurrer and dismissal of the cause was upheld where the payment for hire was alleged to be the guest’s payment of her proportionate share of the operating expenses of the automobile in which she was riding.

We are further of the opinion that the evidence did not warrant submission of either of the two theories urged by the plaintiff-appellant, even if it could be assumed that they were tried by consent. In Dietrich v. F. R. Young Company, 400 S.W.2d 572, err. ref. n. r. e., the court stated:

“In Burt v. Lochausen, 1952, 151 Tex. 289, 249 S.W.2d 194, the Supreme Court quoted with approval the language used by the Court of Civil Appeals in such case [244 S.W.2d 915, 917] as follows:
“ ‘The rule established by the authorities everywhere seems to be, to remove a case from the provisions of such (guest) statutes a definite relationship must be established and a definite tangible benefit to the operator shown to have been the motivating influence for furnishing the transportation. * * * ’ ”

The payment for lunches and the fact that the driver was required to have a licensed operator with her do not suggest a tangible benefit to the driver, Mrs. Wainwright, which was the motivating influence for her furnishing Mrs. Fuller a ride, under the facts and circumstances presented.

The court was correct in granting the instructed verdict. The judgment is affirmed.


text:
    CASUALTY RECIPROCAL EXCHANGE, Appellant, v. Josephine G. RODRIGUEZ et vir., Appellees.
    No. 7712.
    Court of Civil Appeals of Texas. Amarillo.
    April 24, 1967.
    Rehearing Denied May 29, 1967.

      Crenshaw, Dupree & Milam, Lubbock, Joe Nagy and Cecil Kuhne, Lubbock, of counsel, for appellant.
    Wagonseller & Cobb, Lubbock, Robert L. Stogner and Gene S. Cobb, Lubbock, of counsel, for appellees.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Appellee, Josephine Rodriguez was injured on January 6, 1965 in the course of her employment for the City Steam Laundry in Lubbock, when a steam press came down upon her left hand and severely burned her fingers. She alleged an injury to the first, second, and third fingers of the left hand, to the entire hand and to the left arm above the elbow; and that the injuries to her left hand extended to and affected her left shoulder and neck. She sought only total and permanent general disability, and made no claim or disability from a specific injury. Appellant alleged that any incapacity suffered by plaintiff was temporary and partial and was caused solely by the loss of use of the three fingers on the left hand; that the injury was confined to the three fingers of the left hand or in the alternative, the injury was confined to the left arm.

In response to Special Issues, the jury found: (1) Plaintiff sustained an accidental injury to her left hand; (4) the injury to her left hand extended to and affected her left shoulder and neck, thereby causing disability to said shoulder and neck; (5) that Plaintiff suffered total incapacity; (6) that the injury to the left hand was a producing cause of the total incapacity; (8) that such total incapacity was temporary; (9) that the duration of the total incapacity was 156 weeks; (10) that Plaintiff will sustain partial incapacity; (13) that such partial incapacity will be permanent; (15) that Plaintiff’s injury to the left hand will result in a total loss of use of said hand; (16) such loss will be temporary; (17) for 156 weeks; (18) that the injury to the hand will result in partial loss of use of the hand; (19) such partial loss will be permanent; (21) 20% partial loss of use will be suffered; (28-32) the injury or the effects thereof are not confined to the various fingers of the left hand, left arm below the elbow, and to her left arm; (33-37) that the incapacity of the Plaintiff is not caused solely by the loss of the use of the named fingers of the left hand, her left arm below the elbow, and her left arm. The parties stipulated that appellee’s wage rate was $35.00 per week. Upon this verdict the trial court entered judgment for a general disability for total and temporary incapacity for 156 weeks and for partial permanent disability for 245 weeks.

We first consider appellant’s contention that the special issue inquiring if the injury to the left hand extended to and affected appellee’s shoulder and neck is not supported by any evidence, and that such finding is against the great weight and preponderance of the evidence. It is un-contradicted appellee initially received a specific injury to the fingers of the left hand and the hand itself. Her claim here is for a general injury which she alleges resulted from the injury to the left hand extending to and affecting her left shoulder and neck. The burden of proving that the specific injury extended to and affected other portions of the body so as to result in a general injury rests upon the claimant. Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76. Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463. The only evidence in the record regarding the injury extending to the appellee’s left shoulder and neck was testified to by the claimant herself. She testified she suffered pain in the neck and shoulder, and that this pain was caused by Dr. Lewis “sticking needles” into her neck to relieve the pain in her lower arm. Dr. Salem, the original treating doctor, described this procedure as a “stellate block”. He explained the procedure as “simply a nerve block in the neck which blocks the nerve in an attempt to relieve the pain of the extremity”. He found no disability in the shoulder and neck. There is no evidence of injury to the shoulder or neck, nor is there any evidence the pain suffered in the fingers or hand was felt in the shoulder and neck. Even so, it would not be sufficient to support a recovery for anything more than the original specific injury. Texas Employers’ Insurance Association v. Espinosa, Tex.Sup., 367 S.W.2d 667. Texas Employers’ Insurance Association v. Brownlee (supra). We therefore are of the opinion there is no evidence to support the finding the specific injury to the hand extended to and affected other portions of the body so as to result in a general injury.

We think appellee’s recovery for a general injury must be denied for another reason. The rule regarding the extension of a specific injury to a general injury was clearly restated by the Supreme Court in Travelers Insurance Company v. Marmolejo, 383 S.W.2d 380. There the court held:

“ * * * the plaintiff does not establish his right to a judgment for general disability by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member.”

There was no such finding in the present case. There was a finding that the injury to the left hand was a producing cause to both appellee’s total and partial disability. These findings support a recovery for a specific injury under Article 8306, Section 12, Vernon’s Ann.Civ.St. They do not support a recovery for a general injury. In order to recover for a general injury, ap-pellee must obtain a finding that the general injury or incapacity was caused by the extension of the specific injury to some other part of the body. See also Petty v. Texas Employers’ Insurance Association (Tex.Civ.App.) 401 S.W.2d 678 (Ref. N.R.E.). The findings of the jury are not sufficient to sustain appellee’s burden to establish a general injury under the rule of the Marmolejo case.

Appellant also contends the “confinement” issues 28-32 were improperly submitted in that they inquired whether or not the injury or the effects thereof was not confined to the named fingers, the left hand, of left arm, instead of inquiring if such “injury” was not so confined, or whether or not the injury “and” effects thereof was not so confined. In support of this contention appellee relies on the Marmolejo case. While it is true that case held an issue inquiring whether the injury to plaintiff’s foot “extended to or affected” other parts of the body, was improper; we do not think the same reasoning is applicable to the “confinement” issues. The inquiry here was whether the “injuries or the effects thereof” are not confined to the fingers or the hand. The suggested answers: “They are not confined” or “They are confined” contains the word “they” which has reference to both “injury” and “effects thereof”. A “confinement” issue inquiring if the “injury of Joe Marmolejo was not confined to his left foot” was approved by implication in the Marmolejo case. While we think it better practice to form the “confinement” issues so as to inquire if the “effects of the injury” were not confined to a specific member, the issues as framed here, together with their form of suggested answers, do not constitute reversible error. See Stayton’s Texas Forms, Workmen’s Compensation, Section 7007.

Other points of error deal with the admissibility of certain testimony and objections to appellee’s counsel’s oral argument. A review of these points reveal no reversible error.

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


author: McDONALD, Chief Justice.

text:
    Andrew VASSILIADES, Appellant, v. Nick ANAGNOS, Appellee.
    No. 4633.
    Court of Civil Appeals of Texas. Waco.
    May 11, 1967.
    Victor R. Blaine, Houston, for appellant.
    Knight, Prappas, Rowland & Caldwell, Ellis F. Morris, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a judgment for debt of $2,000 for plaintiff.

Plaintiff Anagnos filed suit in the nature of a bill of review against defendant Vassiliades on September 17, 1965, alleging he had filed suit for debt against defendant in 1961; that on February 5, 1965 the District Judge notified plaintiff’s counsel he was going to dismiss the case for want of prosecution on April 19,1965; that plaintiff, on February 12, 1965, had the case set for trial for April 12, 1965; that on April 6, 1965 defendant’s counsel filed motion to withdraw from the case, which motion was granted on the same date; that plaintiff’s counsel, in order to give defendant time to obtain new counsel, agreed with defendant’s counsel to pass the case at its April 12th setting; that the trial court on April 22, 1965, without notice to plaintiff or plaintiff’s counsel, dismissed the case for want of prosecution; that on August 11, 1965 plaintiff’s counsel requested the cause be set for trial on September 13, 1965; that at the call of the docket on September 13, 1965 plaintiff’s counsel first learned the case had been dismissed. Plaintiff incorporated his original petition pleading the cause of action for debt, and plead for reinstatement of his first case, and “for such further relief as he may show himself entitled to.”

Defendant answered by general denial.

Trial was before the court without a jury, which entered judgment for plaintiff for the debt sued for in the sum of $2,000.

Defendant appeals, contending the trial court erred in rendering judgment for plaintiff because the suit was in the nature of a bill of review, and there is no evidence plaintiff was free of negligence in permitting the entry of order of dismissal of the first case (or in not filing motion for new trial or appealing).

Plaintiff filed this case September 17, 1965, asking that the judgment of dismissal in the first suit be set aside, and further repleading his cause of action for debt. Defendant answered by general denial only. The trial court rendered judgment for plaintiff for debt for $2,000.

While we think the record ample to show plaintiff free of negligence in permitting entry of the order of dismissal; (and not filing motion for rehearing and appealing), it is not necessary to rest our decision on such ground. Plaintiff replead his original cause of action for debt in the instant case; defendant answered by general denial only; and the evidence is ample to sustain the judgment.

The judgment is correct. Defendant’s points and contentions are overruled. Affirmed.


author: TIREY, Justice.

text:
    COASTAL STATES CRUDE GATHERING COMPANY, Appellant, v. L. W. CUMMINGS et al., Appellees.
    No. 4609.
    Court of Civil Appeals of Texas. Waco.
    May 4, 1967.
    Rehearing Denied May 25, 1967.

      W. T. Blackburn, Bernard W. Schrader, Corpus Christi, Pollan & Nicholson, Elbert V. Pollan, Rosenberg, for appellant.
    Sidney J. Brown, Rosenberg, M. A. Leh-mann, Houston, for appellees.
   OPINION

TIREY, Justice.

This is an appeal from a summary judgment. The Coastal States Crude Gathering Company, appellant here, brought this action against defendant, L. W. Cummings, and others, the landowners, on the ground that they had the right to construct two additional pipelines across certain lands belonging to the defendants under two pipeline right-of-way agreements. Pipeline easements were both originally executed by the defendants’ predecessors in title on November 10, 1920, and were duly filed for record in the Deed Records of Fort Bend County during the month of November, 1920. Sinclair Pipe Line Company, appellant’s predecessor in title, constructed an 8-inch pipeline across the property during the year 1921. By mesne conveyances, appellant acquired the pipeline previously built and owned by Sinclair Pipe Line Company, which extends from Corpus Christi to Houston, along with all of the easements in connection therewith and including the two easements mentioned above. Appellant, after an attempt by appellees to interfere with the construction, filed an application for an injunction and a temporary restraining order and the trial court, on September 7, 1965, granted a temporary restraining order, temporarily restraining ap-pellees from interfering with appellant’s use and enjoyment of the rights granted in the two easements, including the construction of the additional pipelines.

Thereafter, appellees filed a motion to dissolve the temporary restraining order, and thereafter appellant amended its pleading and filed a motion containing an alternate count for condemnation under the provisions of Article 3269, R.C.S., in the event of the trial court’s refusal to enter a temporary injunction. The court did grant the temporary order, as heretofore stated. This order enjoined appellees from interfering with appellant’s construction and appellant's use and enjoyment of a 60-foot wide area through uncultivated land, and a 161/4-foot-wide strip through the cultivated land. The order also permitted appellant to immediate possession under its alternate plea for condemnation upon the part of a 60-foot right-of-way not covered by the prior ruling on a 16i^-foot-wide strip through the cultivated land.

Appellees filed an original answer and cross-action and appellant filed its second amended original petition and, prior to any action on the part of the trial court, both the appellant and the appellees filed motions for summary judgment.

On October 10, 1966, the court severed all issues relating to damages and all issues in connection with appellant’s alternative plea for condemnation, and denied appellant’s motion and granted appellees’, to which appellant duly excepted and gave notice of appeal. No findings of fact nor conclusions of law were requested by either party, and none were filed. The foregoing statement is taken substantially from appellant’s brief, and appellees say that it is, substantially correct.

Appellant’s First Point is:

“The trial court erred in denying appellant’s motion for summary judgment, because the two pipelines right-of-way easements grant multiple line rights, with the right to expand the user by the user by the construction of additional lines, at any time, which rights are valid, as a matter of law.”

We are in accord with this view, and we reverse and render the judgment of the trial court for reasons hereinafter stated.

The two pipeline right-of-way easements are virtually identical and contain substantially the following pertinent provisions:

“For and in consideration of Sixty-Six and 66/100 Dollars to us the undersigned in hand paid, receipt of which is hereby acknowledged, we Irene B. Dieter and her husband, A. J. Dieter do hereby grant to S. M. Briscoe, of Tulsa, Oklahoma, his successors or assigns, the right-of-way or easement and privilege, to lay, repair, maintain, operate and remove a pipeline or pipelines for the transportation of oil or gas or any of its products or by-products, * * *.
“To have and to hold unto the said grantee, his successors or assigns, so long as such line or lines shall be maintained, for the purpose of constructing, inspecting, repairing, operating and maintaining the same and the removal of such at will, in whole or in part. * * * Should more than one pipeline be laid under this grant at any time Sixty-six and 66/100 Dollars shall be paid for each additional line so laid, besides the damages above provided for. Should it become necessary to change the size of the pipe, the damage, if any, in making such change to be paid by the said grantee, his successors or assigns.” (emphasis added).

The sole question before the trial court was the proper construction to be made of each of the two written contracts. First of all, it was the duty of the court to construe each of the written instruments and, in so doing, it was bound by the rules of construction heretofore announced by our Supreme Court:

“The governing rule in the construction of written instruments is ‘that every part of the instrument should be harmonized and given effect to if it can be done’. Hancock v. Butler, 21 Tex. (804) 806. But this rule does not demand that every part of the deed shall be treated as of equal weight in the solution of every question that may arise. ‘The habendum may fye entirely rejected if repugnant to the other clauses of the conveyance.’ Devl. Deeds, § 213.” Moore v. City of Waco, 85 Tex. 206, 20 S.W. 61, 63. “The languáge of a deed is the language of the grantor, and, if there be a doubt as to its construction, it should be resolved against him.” Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551, 552. “The dominant purpose in construing a deed is to ascertain the indention of the parties as expressed in the deed itself; and such intention expressed therein is a controlling factor.” Bumpass v. Bond, 131 Tex. 266, 114 S.W.2d 1172, 1174, pars. 2 and 3, and cases there cited. (The foregoing quotation taken from the case of Moore v. Proctor, Tex.Civ.App., 234 S.W.2d 479).

Insofar as we know, the foregoing rules of construction have never been changed nor modified by our Supreme Court, and we think they apply here.

We have given much consideration to the language in each of the instruments before us and it is our view that each is full, clea¶ and comprehensive and free from ambiguity and all doubt as to their provisions and the intention of the parties. The only issue before the trial court was whether or not! each of the easements created multiple pipeline grants with the right in the future to expand the servitude. We think each did.; It is our view that the application of the general rule of construction heretofore quoted requires us to so hold. We think such view is in line with the holding of our Texas Courts of Appeals where the provisions in the easements are substantially as they are here. The most recent case is Phillips Petroleum Company v. Lovell, Tex.Civ.App., 392 S.W.2d 748, Amarillo Court (1965) error ref., n. r. e. In that cáse Phillips had obtained two easements crossing certain properties, one having been executed in 1944, and the other one in 1946. One pipeline was constructed in 1944, ánd two in 1950, without incident. In 1962 Phillips constructed an additional pipeline across the subject land, and a lawsuit arose out of that pipeline construction. The pertinent provisions contained in the easement before the Amarillo Court were:

* * * hereby grants unto Phillips Petroleum Company, a corporation, its successors and assigns, the right to lay, maintain, inspect, erect, operate and remove a pipe line, or pipe lines, * * *. “Grantee agrees that, if at any time or times any such pipe line or pipe lines shall be laid, Grantee shall pay to Grantor in addition to the consideration herein-above stated, the sum of fifty cents per rod.”

The 1946 easement in the Lovell case was substantially the same as in the provisions of the 1944 easement, except that the paragraph with respect to additional pipelines contained a few additional words. That paragraph in the 1946 easement was:

“Grantee agrees that, if at any time or times, any such pipe line or pipe lines shall be laid by Grantee, its successors or assigns, Grantee, its successors or assigns shall pay to Grantor, in addition to the consideration hereinabove stated, the sum of fifty cents per rod for each separate line so laid. The rights granted herein may be assigned in whole or in part.”

The Amarillo court upheld the validity of the easement and said:

“We do not believe the exact same language must be employed in order for the instrument to constitute a multiple line grant. The test is whether under the four-corners rule the instrument shows the intent of the parties to a multiple line grant. The instruments here under consideration, particularly the 1946 instrument, does so in our case by the language employed and the definite consideration provided ‘for each separate line so laid.’ ”

When you compare the pertinent provisions in the easements in the case before us with the provisions in the easement before the Amarillo Court, you cannot fail to see that the controlling provisions in the easements before us are more complete and more comprehensive than the provisions in the easements in the Lovell case.

It is true that the Supreme Court in the Lovell case refused an application for writ on the ground that there was no reversible error, yet since the controlling question in the Lovell case was the proper construction of the easement, we must reach the conclusion that the Supreme Court was of the view that the judgment on this important point by the Amarillo Court was correct, otherwise it would have granted a writ.

We have carefully considered Belusko v. Phillips Petroleum Company, 198 F.Supp. 140 (S.D.III, S.D.1961) Affirmed 308 F.2d 832 (7th Cir. 1962); Houston Pipe Line Company v. Dwyer, Tex.Sup., 374 S.W.2d 662, and Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851 (1906), and we are of the view that the foregoing cases by reason of the factual situation in each are distinguishable from the case at bar, and it would serve no useful purpose to comment thereon.

Since there are no findings of fact nor conclusions of law we are of the view that the trial court necessarily based its holding upon the pleadings and stipulations, and its judgment therefore amounts to a finding by the trial court that the two easements in the case at bar were not valid multiple line grants, as a matter of law. As stated before, we are not in accord with this view. There are no issues of fraud, accident or mistake here, and in the absence of such issues and ambiguity it was the court’s duty to give effect to the intention of the parties as expressed by the terms and conditions stated in the easements. See Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954); Davis v. Andrews, 361 S.W.2d 419, 424, Tex.Civ.App. (1962), error ref., n. r. e.; Kothe v. Harris County Flood Control Dist., 306 S.W.2d 390, 393 (Tex.Civ.App.1957). Moreover, it is well settled that courts must construe deeds so as to give effect to all parts thereof, and must not strike down any part of a deed unless there is an irreconcilable conflict. Cockrell v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672 (1956); Texas Pacific Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436 (1960); Sebastian Independent School Dist. v. Ballenger, 297 S.W.2d 238, Tex.Civ.App. (1956). We find no irreconcilable conflict here.

It is clear to us that the trial court should have overruled appellees’ motion for summary judgment, and should have sustained appellant’s motion. Under our view each of the other contentions of appellant pass out of the case.

Accordingly, the judgment of the trial court is reversed and rendered.

It is further ordered that the temporary injunction and restraining order heretofore granted by the trial court he reinstated and such order be made permanent, and the District Court of Fort Bend County is directed to enter such decrees and the Clerk directed to issue such writs as necessary to enforce this judgment.

Reversed and rendered with instructions.