author: YOUNG, Justice.

text:
    Jacobe Lincoln MERCURY, Appellant, v. Joseph N. MUSTACHIA, Appellee.
    No. 1055.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 10, 1976.
    Rehearing Denied Aug. 30, 1976.

      Robert C. Floyd, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Ronald R. Romack, Romack & Bates, Houston, for appellee.
   OPINION

YOUNG, Justice.

This suit for false arrest and malicious prosecution arose from a customer’s arrest caused by an automobile dealer-repair agency and which resulted from the customer’s removal of his automobile from the agency’s premises without satisfying charges for repairs. Based upon a jury verdict, the trial court rendered judgment for the plaintiff customer against the defendant automobile agency for $2,200.00. The defendant appeals.

Joseph N. Mustachia was plaintiff below and is the appellee here. Jacobe Lincoln Mercury, a corporation, was defendant below and is appellant here.

Mustachia left his automobile in the appellant’s body shop for repairs. After he was notified that the repairs were complete, Mustachia returned to the shop at about 5:30 p. m. The shop was crowded with customers at this time. He then spoke with Blay Ruffino, a service writer, employed by the appellant. Chris Gary, employed as a porter by the appellant, brought Mustac-hia’s automobile down from the fourth floor and transferred some office machines from Mustachia’s rental car to his repaired automobile. Mustachia then persuaded Gary to drive the repaired automobile and follow him to a rental agency so that he might return the rental car. Mustachia then returned Gary to the appellant’s shop and told Gary to have them bill him for the repairs. Other than this statement to the porter, Mustachia made no arrangements for credit or payment. He did not have a charge account at the shop; he never received a bill from the appellant; and he has not paid for the repairs.

Subsequently, a third employee, Russell W. Doty, began an investigation of the circumstances under which the repaired automobile was taken from the shop. At the trial, Doty described his employment as a coordinator and leasing manager, a troubleshooter for management, and liaison with the company attorneys. Doty placed several calls to Mustachia’s residence and place of employment and was unable to reach him. He testified that he spoke with all of the employees with the authority to release an automobile and was unable to determine how the automobile left the shop. He contacted authorities in Austin to check on the license number and learned from them that the license plates on the repaired automobile were issued to R. D. Gossett for an automobile which was not the automobile repaired. Doty consulted an attorney for the company and then spoke with officers of the Houston Police Department. He then signed a criminal complaint in the clerk’s office of a justice of the peace in Harris County. An arrest warrant was issued by the justice of the peace pursuant to the complaint and the warrant was executed by officers of the Houston Police Department. Mustachia was subsequently no-billed by a Harris County grand jury.

The appellant has brought two points of error. He first contends that there was no evidence to support the jury’s answer to special issue no. 1. In special issue no. 1 the jury found that Russell Doty did not make a full disclosure of the facts within his knowledge concerning the incident in question to the magistrate or his clerk at the time and on the occasion in question. In considering this no evidence point of error we will view the evidence in a light most favorable in support of the jury finding and consider only the evidence and inferences which support the finding and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975).

We pause here to note that this case reaches us in a novel posture. Only one special issue was submitted to and answered by the jury on the liability aspect of this case. The appellee alleged both false imprisonment and malicious prosecution as grounds of recovery. And there was evidence introduced at the trial about both grounds. It is not clear in the judgment on which ground the trial court based recovery for the appellee. But the single answered issue on liability is referable to only the malicious prosecution ground. For the elements of false imprisonment, see Sparkman v. Peoples National Bank of Tyler, 501 S.W.2d 739, 744 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.) and J. C. Penny Company v. Reynolds, 329 S.W.2d 104, 107 (Tex.Civ.App.-El Paso 1959, writ ref’d n. r. e.). For the elements of malicious prosecution, see 37 Tex.Jur.2d, Malicious Prosecution, § 4, page 521. The appellant has not properly preserved error, if any there was, about the trial court’s failure to submit all the elements to the jury of either false imprisonment or malicious prosecution. So we are not here called upon to determine whether the verdict supports the judgment. Even if we were so called upon, we would be required to hold that any omitted issues were deemed found by the trial court in such manner as to support a judgment based upon malicious prosecution. See Rule 279, T.R.C.P.

All of which brings us back to a consideration of appellant’s first point. As a general rule the jury may not make an opposite finding solely from the uncontra-dicted testimony of an interested witness. Texas & N. O. R. Co. v. Grace, 144 Tax. 71, 188 S.W.2d 378 (1945). The testimony of Russell Doty, however, supplies its own contradiction. Doty’s testimony was to the effect that at the time he signed the complaint he did not know that Chris Gary had turned over the automobile to Mustachia and that he did not know how Mustachia had obtained possession. The jury could infer from this testimony that the representation of the facts by Doty to the magistrate was that the automobile was missing, that he did not know how it had been removed from the premises, and that he believed it to be in the possession of Mus-tachia. The crucial element of the disclosure is, of course, how the automobile was removed from the shop.

Doty also testified that before he signed the complaint he conducted an investigation within the shop and questioned the employees to determine if anyone with the authority had released the repaired automobile. The jury could thus infer that Doty knew that Gary had released the automobile to Mustachia before he signed the complaint. We conclude, therefore, that there is evidence to support the jury’s answer. The appellant’s first point of error is overruled.

Appellant next argues, in its second point, that attorney’s fees are not a proper element of damages in an action for false imprisonment. This argument is based upon the jury’s response to special issue no. 2 which was as follows:

“SPECIAL ISSUE NO. 2
What amount of money, if paid now in cash, do you feel from a preponderance of the evidence would reasonably and fully compensate Joe Mustachia for the damages, if any, he has incurred by reason of the arrest?
Answer in dollars and cents, if any. ANSWER: $2.200.00 for attorney fees”

As we have previously indicated, the trial court’s judgment can be properly based upon the ground of malicious prosecution. We also note that special issue no. 2 does not require the jury to respond in terms of attorney’s fees. The judgment of the trial court set out the issues and answers and eliminated the jury’s reference to attorney’s fees. Even so, attorney’s fees which are incurred by the plaintiff as a consequence of the wrongful act are recoverable in an action for malicious prosecution. Davis v. Teague, 256 S.W. 957 (Tex.Civ.App.-Beaumont 1923, writ dism’d).

Mustachia’s attorney, Ronald R. Ro-mack, testified as to his efforts in representing Mustachia to secure his release from jail, in representing him at the examining hearing, in briefing and in making personal appearances before the Texas Real Estate Board to obtain Mustachia’s broker’s license. Romack testified that for this work his reasonable and necessary charges were $2,200.00. The appellant’s point of error does not bring into question the amount awarded or the evidence upon which the award was based, and we do not express an opinion thereon. The point of error is confined to a complaint that attorney’s fees are not a proper element of damages in an action for false imprisonment. But it can be a proper element of damages in an action for malicious prosecution. And it is our duty to affirm if there is any ground on which the judgment can properly rest. 4 Tex.Jur.2d, Part 2, Appeal and Error — Civil Cases § 755 (1974). The appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    DOWELL, INC., Appellant, v. Joseph F. CICHOWSKI et al., Appellees.
    No. 15489.
    Court of Civil Appeals of Texas, San Antonio.
    June 23, 1976.
    Rehearing Denied Sept. 8, 1976.

      Maddin, White & Brin, Inc., Harry F. Maddin, Corpus Christi, for appellant.
    Perkins, Davis, Oden & Warburton, Alice, for appellees.
   KLINGEMAN, Justice.

This is a suit for damages allegedly resulting from a squeeze tool or packing tool becoming lodged in an oil and gas well being drilled in Jim Wells County, Texas in connection with a “squeeze job” being performed on said well by defendant, Dowell, Inc.

Plaintiff, Joseph F. Cichowski, is the lessee under an oil and gas lease covering certain lands in Jim Wells County and was the operator of a well being drilled on said land, known as the Cichowski Well No. 2. The other plaintiffs are investors in such prospect, although the exact nature and extent of their interest is not shown. Do-well, Inc. is an oil field specialty company that conducted the squeeze job operations. Damages were sought by plaintiffs for remedial repairs made necessary because of defendant’s alleged negligent operations and for the destruction and loss of the well. Trial was to a jury who found the well to be capable of producing oil and gas in paying quantities prior to the squeeze job, and that such capacity to produce was completely destroyed as a direct and proximate result of the squeeze operations. The jury further found that defendant was negligent in failing to raise the squeeze tool above the top level of the cement after the squeeze job was conducted; that such failure was negligence, a proximate cause of the tool sticking in the well, and a proximate cause of the destruction of the well. Based upon such jury findings, the trial court entered judgment for plaintiffs against defendant in the sum of $76,706.33.

The well here involved is located on a tract of land leased by the trustee for Harry J. Mosser, Jr. and Suzanne Mosser Shanks to Joseph F. Cichowski. A prior well, designated as Cichowski Well No. 1, was drilled on the leased premises but was plugged and abandoned in April 1972 because an allegedly uncontrollable gas sand was encountered during the drilling process. After plugging this well, the well site was moved a short distance from the first well, and drilling operations commenced on Ci-chowski Well No. 2. Although Cichowski was the lessee under the lease and the operator of the well, Harry J. Mosser acted as a consultant and adviser. During the drilling of the well, numerous tests were conducted to determine if such well would be a producer. There is testimony that such tests were highly favorable, and there is testimony that the well would probably be oil productive. Based upon such tests, it was decided that casing be set and the well completed.

Several attempts to complete the well were made without any particular success, although there is testimony that on some tests some oil and water were produced. It was finally determined that salt water was invading the sand which was being tested, preventing the completion of the well as a producing well in such sand. Cichowski and Mosser decided to have an operation, known in the oil field as a squeeze job, conducted. A squeeze job is an operation, usually performed by an oil field service company, wherein cement is pumped down into the well and forced outside the casing through perforations deliberately made in the casing; such cement is forced into the strata and formations surrounding the well so as to create a seal or dam between the water and the oil-bearing sand. Mosser contacted defendant to conduct such operations. Two employees of defendant, Earl Leach and Roy Bertram, were in charge of the squeeze job operations.

After the squeeze job was completed, an attempt was made to remove the squeeze tool from its attached position inside the well, but trouble was encountered. Such process culminated in the squeeze tool being lodged or embedded in the well at the original position where the squeeze job was conducted. After it was determined that the squeeze tool was lodged and stuck in the well, there is testimony that Leach made arrangements with Parsons & King, Inc., an oil field specialty company specializing in the removal of substances that are caught or lodged in a well, to remove the tool. Parsons & King thereafter commenced operations to remove the tool, with Leach directing and in charge of the removal operations. Considerable trouble was encountered in releasing or removing the tool, with various methods being tried and with some disagreement as to the best method to be used. It appears undisputed that removal of the lodged squeeze tool was absolutely necessary in order to complete the well. After several unsuccessful attempts to remove the tool were made, it was finally decided to mill or drill the tool out by use of special milling tools. This process continued over several days, and during the process, cuttings, consisting of debris and other substances, were flushed from the well, with Mosser testifying that he observed shale in the cuttings. After the squeeze tool was ultimately removed from the well, additional attempts were made to complete the well as a producer; none of which were successful. There is testimony by Mosser and Cichowski that they believed the well in the producing sand had been polluted and ruined, and the well was finally abandoned.

We first consider defendant’s point of error that the trial court erred in failing to grant defendant indemnity from plaintiff Cichowski, and/or in failing to enforce the limitation of liability provisions contained in the contract under which the work was done.

The contract or invoice relied upon by defendant was introduced into evidence as an exhibit and is dated June 14, 1972. The customer is shown as Joseph Cichowski. It lists various work and services performed by Dowell and the indemnity or limitation of liability provisions relied on by Dowell are contained on the back of the invoice. On the face of the invoice there are two places for the signature of the customer. At the top of such invoice, above a line for signature by the customer, appears the following: “I have read, understood and agreed to the terms and conditions printed on the reverse side hereof and represent that I have full authority to accept same and sign this order.” There is no signature whatsoever on the line marked “customer.”

At the bottom of the page there is another line for signature by the customer, and above such signature line the following appears: “RECEIPT: The undersigned hereby certifies that the materials and equipment listed above were received and the services were performed in a workmanlike manner.” The line marked “customer” is signed by Harry J. Mosser.

Leach, one of Dowell’s employees who was in charge of the squeeze job operations, testified that a work order receipt is usually written up before you leave the job and it is a verification that the work is being done. He stated that he did not discuss any terms or provisions with Mosser. He stated that the June 14th receipt is signed at the bottom part, not at the top, and that Mosser did not need to sign at the top because the job was completed when he signed it, but that usually customers signed at both the top and the bottom after the job was completed. There is evidence that at no time were any terms or conditions regarding indemnity and limitation of liability brought to the attention of Mosser by either Leach or Bertram. Mosser testified that the invoice was brought to him by Leach during the squeeze job; he signed it at the bottom; no special terms or conditions were explained to him; and, he did not orally agree to any of such terms.

Defendant introduced into evidence similar invoices dating back to 1971, not pertaining to the job here involved, which either Cichowski or Mosser had signed. It asserts that since both had previous dealings with Dowell, they were familiar with the terms and provisions of these types of invoices. If such invoices on previous jobs are of any materiality whatsoever, at best they are somewhat of a two-edged sword, and it can be argued persuasively that Mos-ser deliberately chose not to sign the line which agrees and refers to the terms and provisions on the reverse side.

Plaintiff asserts that as a matter of law it did not enter into an indemnity limitation of liability contract with defendant or any agreement whereby defendant would be exonerated from the consequences of its own negligence; and that, from the examination of the document itself relied on by defendant, it is apparent from the *face of the instrument that plaintiff did not agree to be bound by the terms and conditions which were contained on the back of the invoice. They further urge that if this is not correct as a matter of law, there would at least be a fact question as to the intention of the parties which would have to be determined by the trier of the facts, and that defendant waived and abandoned this ground or theory of recovery by failing to request that his submission of any issue regarding such alleged contract.

Indemnity contracts have been the subject of many lawsuits, and there are a number of pertinent Supreme Court decisions. In Spence & Howe Construction Company v. Gulf Oil Corporation, 365 S.W.2d 631 (Tex.1963), the Court stated:

Ordinarily, however, one does not contract against the results of his own negligence. Such agreements, except for insurance contracts, must be regarded as exceptional rather than usual in the majority of business transactions. Before such indemnity contracts may be enforced it must clearly appear that the contracting parties intended that the in-demnitor would be held liable for damages resulting from the negligence of the indemnitee.

In Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721 (Tex.1971), the Supreme Court said:

Texas follows the general rule that an indemnity agreement will not protect the indemnitee against the consequences of his own negligence unless the obligation is expressed in unequivocal terms. It is not necessary for the parties to say, in so many words, that they intend to save the indemnitee harmless from liability for his own wrongs, but it is necessary for that intention to clearly appear when all the provisions of the contract are considered in the light of the circumstances surrounding its execution.

We have concluded that under the record and the applicable authorities, plaintiff did not enter into any indemnity or limitation of liability contract or agreement whereby defendant would be exonerated from the consequence of its own negligence. Defendant’s Point of Error No. 1 is overruled.

By six points of error defendant complains of the legal and factual insufficiency of the evidence to support certain special issues.

Defendant’s second and third points of error complain that (a) there is no evidence to support the jury’s answer to Special Issue No. 3A; (b) there is insufficient evidence to support such answer and such answer is contrary to the overwhelming weight and preponderance of the evidence. Special Issue No. 3A was predicated upon affirmative answers to Special Issue No. 1, in which the jury found that on the occurrence in question, Dowell failed to raise the squeeze tool above the top level of the cement after the squeeze job was conducted; and Special Issue No. 2, in which the jury found that such failure was negligence. Defendant makes no complaint on this appeal as to the jury’s answers to these two special issues. In Special Issue No. 3A, the jury found that such failure was a proximate cause of the destruction of the well. Defendant’s second and third points of error are directed to this finding.

By its fourth and fifth points of error defendant complains that (a) there is no evidence to support the jury’s answer to Special Issue No. 1A; (b) there is insufficient evidence to support the jury’s answer to such special issue and the jury’s answer is against the great weight and preponderance of the evidence.

Defendant’s sixth and seventh points of error complain that (a) there is no evidence to support the jury’s answer to Special Issue No. IB of the court’s charge; (b) there is insufficient evidence to support such jury’s answer and such answer is against the great weight and preponderance of the evidence.

In answer to Special Issue No. 1A the jury found that the Cichowski Well No. 2 had the capacity to produce oil and/or gas in paying quantities prior to the squeeze job in question, and in answer to Special Issue No. IB the jury found that such well had its capacity to produce oil and/or gas in paying quantities completely destroyed as a direct and proximate result of the squeeze operation conducted by Dowell.

A “no evidence” point of error is a question of law, and in considering this question it is the duty of the court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of a fact issue or a fact finding and disregarding all evidence and inferences to the contrary. Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.1972); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). On the other hand, an assertion that the evidence is “insufficient” to support a finding of fact can mean that the evidence is factually insufficient, that is, the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming that the finding should be set aside and a new trial ordered. The intermediate court is required to consider all the evidence in deciding this question. Garza v. Alviar, supra; Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958). See also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

Defendant’s basic complaint in support of such points of error is (a) the well did not produce oil or gas either before the squeeze job or after the squeeze job; (b) after the squeeze job was completed and the tool recovered, the well did exactly what it had done before — produce water. Moreover, they argue that if the well ever was capable of producing oil or gas, there is insufficient evidence to support the jury’s finding that such capacity to produce was completely ..destroyed as a direct and proximate result of the destruction of the well.

The testimony shows that during the drilling stage of the Cichowski Well No. 2, numerous tests were conducted to determine if such well could be oil or gas productive. Such tests included an electro-log test, neutron-log tests, mud log tests, core analysis, and formation tests. There is testimony that these types of tests are used and relied upon in the gas and oil business in determining whether or not a well is oil or gas productive. There is testimony that the tests taken in the well were highly favorable in that (a) the cuttings from the mud log tests had excellent color and indicated the presence of oil; (b) the core analysis was very favorable; (c) the formation tests were considered excellent. Milton Craft, an expert and specialist in the field of core analysis, testified that he had been involved in the interpretation and supervision of analyses of about 600 wells a year in south Texas, that he personally did core analyses on the well here involved and analyzed three sand samples at 4160, 4162, and 4164 feet for permeability, porosity, and fluid saturation, and that such tests indicated sufficient permeability for fluid flow, normal porosity, and normal residual oil saturation. He further testified as to the measurement of water in the cores, and stated that in his opinion there would be a high probability that the zone would produce oil.

Mosser testified that as a result of his interpretations of the various tests and his knowledge and familiarity with the sands and formations in- the immediate area of the well, he had no doubt that the well would be completed as an oil producer in the zone that was ultimately perforated. Sawyer, a geologist, testified by written interrogatory that the well in question had oil shows at 4160 feet, gas shows at 4530 feet, and gas shows at 4880 feet by core analysis. Mosser testified in some detail that he witnessed the various ■ tests and observed the cuttings as they were brought out of the well; they took side wall cores from approximately 4160 to 4168 feet; the sand started at about 4158 feet and was believed to be about 8 feet thick; and, the sand had good color, which meant oil. There is testimony that there is a producing well to the east, west, and south of the Cichowski Well No. 2, and a number of producing wells to the north, with the best producing zone or formation being approximately 4160 feet, the same zone which was ultimately perforated in the Cichowski Well No. 2.

On the basis of such tests, casing was set and attempts were made to complete such well. Although numerous attempts to complete the well were thereafter made, none were successful. Oil and water were found in the initial tests. However, operations to complete the well as a flowing well were unsuccessful. It was finally decided to perform a squeeze job. There is testimony that squeeze jobs are conducted whenever the well has been perforated and it is either not producing a sufficient amount of oil and gas, or there is production of oil and water. Cement is pumped through holes that have been shot in the casing, out into the formation, thereby blocking off the water flowing into the casing. It is an attempt to seal off the water in the oil sand, or close off all perforations that have been made to obtain production in different sands.

We have heretofore set forth in some detail the testimony pertaining to the alleged negligence of defendant in connection with the squeeze job operation. Since defendant makes no complaint on this appeal as to the jury’s answers to Special Issues No. 1 and 2, pertaining to such negligence, we will not attempt any further discussion of such matters at this time.

After the squeeze tool was ultimately recovered from the wall, additional attempts were made to complete the well as a producer, but all were unsuccessful. Mos-ser testified that before the squeeze job oil and water were coming from the well, but that after the squeeze job there was never any oil show from the well. Mosser also testified that in his opinion, the inability of the well to produce was not a problem with the sand, but was a mechanical problem; he believed that the trouble arose basically from the grinding and milling process in connection with the removal of the tool, such work and shooting ruined the sand; and, either a hole was cut in the casing as they tried to get the tool out, or the cement itself sealed off the oil sand.

It is evident from the testimony that in drilling a test well for oil and gas it is difficult to determine whether such well will be productive or not. This is perhaps true because the producing formations are normally many thousands of feet under the surface of the well. Over the years the oil and gas industry has developed numerous tests in order to determine whether an oil and gas well has possibilities of production, including electro-log tests, neutron tests, mud log tests, and core analysis. Based upon such tests and the advice of experts in such fields, a determination is made as to whether there is any possible productive formations or sand, and if so, where to perforate and ultimately, where to attempt to complete the well. There is evidence that it is not abnormal for water to be produced along with oil, and in many instances water will cause no problem; but, excess water or particularly salt water, will cause problems and will sometimes prevent the well from flowing. When such water problems are encountered squeeze jobs are regularly used with considerable success.

It is seen from the above testimony that the Cichowski Well No. 2 was drilled at a location where there was production in the immediate area to the east, west, south, and north; during the process of drilling such well various recognized and accepted tests used in the oil industry to determine if a well would be productive were conducted; such tests were highly favorable; on the basis of such tests casing was set and attempts made to complete the well; although some of the initial tests produced some oil and water, the operators were unable to complete the well as an oil producer; it was decided to do a squeeze job, and defendant was employed to conduct such squeeze job; during such operation a squeeze tool became lodged or stuck in the well; it was impossible to complete the well without removing the squeeze tool; difficulties were encountered in removing the squeeze tool, culminating in ultimate removal by milling or drilling it out. There is testimony that defendant was negligent in its squeeze job operations and that such negligence was a proximate cause of the loss and destruction of the well.

We have concluded that the jury’s answers to Special Issues No. 1A, IB, and 3A are sufficiently supported by the evidence. Defendant’s Points of Error Nos. 2, 3, 4, 5, 6, and 7 are overruled.

Five of defendant’s points of error pertain to the matter of damages. Defendant’s eighth and ninth points of error complain that (a) there is no evidence to support the jury’s answer to Special Issue No. 13; (b) there is insufficient evidence to support the jury’s answer to such issue, and such answer is so contrary to the overwhelming weight and preponderance of the evidence.

Defendant’s 10th and 11th points of error complain that (a) there is no evidence to support the jury’s answer to Special Issue No. 12A; (b) there is insufficient evidence to support the jury’s answer to such special issue, and the jury’s answer is against the great weight and preponderance of the evidence.

Defendant’s 12th point of error complains that the trial court erred in admitting into evidence Plaintiffs’ Exhibit No. 1, and alternatively, erred in admitting into evidence those portions of Plaintiffs’ Exhibit No. 1 which clearly and admittedly were not related to the cost of drilling and completing the well in question.

Special Issues No. 13 and 12A were submitted in accordance with the rules set forth in Shasta Oil Company v. Halliburton Oil Well Cementing Company, 10 S.W.2d 597 (Tex.Civ.App.-Amarillo 1928, writ ref’d) and American Glycerin Company v. Kenridge Oil Company, 295 S.W.2d 633 (Tex.Civ.App.-Eastland 1927, no writ). In Shasta, the Court held that the proper measure of damages arising out of the negligent cementing of an oil and gas well was the cost of drilling another such well, less the net value of the salvage that could be secured from the well that had been drilled. We regard this as a correct measure of damages. In American Glycerin, the measure of damages applied by the trial court for a well damaged by a premature explosion, was the fair reasonable cash market value of an oil and gas well immediately prior to an explosion. The Appellate Court said:

We suggest that upon another trial of this case evidence should be admitted and the jury called upon to determine in answer to a proper special issue whether or not the well could be reproduced by drilling another one. If so, the correct measure of damages would be the cost of reproducing and equipping same in the manner that this well was equipped, less the value of any salvage realized by ap-pellees, provided the cost did not exceed the value of the well. Should the cost of reproduction as found by the jury exceed the value of the well, as found by them, or should the jury determine upon competent testimony that the well could not have been reproduced, the damages should be assessed at the reasonable, cash market value of the well as equipped immediately preceding its destruction, less the value of any salvage realized by appellees.

It should be noted that the jury in the case before us determined that the market value of the well was the same as the cost of drilling and completing an identical well ($66,000.00).

Defendant’s no evidence and insufficient evidence points of error in this connection are primarily based on two contentions: (a) that the jury answers were based at least in part on the material contained in Plaintiffs’ Exhibit No. 1, which defendant complains was erroneously admitted into evidence; (b) the only evidence, if any, over and above the material contained in Plaintiffs’ Exhibit No. 1 was that of Harry J. Mosser, which evidence is not credible.

Plaintiffs’ Exhibit No. 1 is a mass of statements relating to the cost and drilling of the Cichowski Well No. 2. While many of such statements pertain to the cost of drilling and completing such well, some admittedly do not.

There is other pertinent testimony in this regard, however. Harry J. Mosser testified that he had been in the oil business since 1923, including extensive experience in the area here involved, and that in 1972 it would have cost between $80,000.00 and $120,000.00 to drill and complete a similar well. He further testified that a reservoir study had been made of the area where the well was drilled; he was familiar with the study; based on his familiarity with the study and his own personal experience, he would not have taken less than a quarter of a million dollars for the well and the 40 acres surrounding the well; and, in determining this figure, he considered that a well, like this one, without any damages, should bring in that amount, considering the structural data and his own experience.

There is testimony from both Mos-ser and Cichowski as to the various bills attached to Plaintiffs’ Exhibit No. 1 with regard to the cost of drilling the Cichowski Well No. 2. It is clear that some of the bills have no relation to such well, while other of the statements are in connection with such well, and there is testimony as to the reasonableness of such charges. We think that the court was in error in admitting many of these items contained in Plaintiffs’ Exhibit No. 1. However, even if we disregard Plaintiffs’ Exhibit No. 1 in its entirety, there is sufficient other evidence to support the jury’s answers to Special Issues No. 13 and 12A, and any error in admitting Plaintiffs’ Exhibit No. 1 or parts thereof is harmless error. Rule 434, Tex.R.Civ.P.

Defendant’s Points of Error Nos. 8, 9, 10, 11, and 12 are overruled.

Defendant’s Point of Error No. 13 complains that the trial court erred in failing to grant defendant judgment for services performed by it for plaintiff, or alternatively, to grant defendant offset against any judgment taken against it by plaintiff.

The only special issue submitted to the jury pertaining to services performed by Dowell is Special Issue No. 15, in which the jury found that the services performed by Dowell on the occasion in question had no value to Ciehowski. Defendant makes no complaint on this appeal of the form of submission of such special issue, or that the court erred in failing to submit any special issue requested by it.

In support of such point of error, defendant’s only contention in his brief is (a) there is testimony that Dowell’s bills were reasonable and necessary; (b) there is testimony by one of Dowell’s employees that Cichow-ski owed Dowell $5,143.81; (c) under such testimony, Dowell was entitled to judgment or offset.

However, there is testimony that Dowell’s services were of no value to plaintiff. There is testimony that it was absolutely necessary to remove the lodged tool to complete the well and that it was impossible to bring in the well without getting out the lodged tool. There is also testimony that when a specialty company is conducting an operation such as a squeeze job, the service engineer with the company directs and is in charge of the control of the work, and that this was done during the operation. There is testimony that the sticking or lodging of the tool and the subsequent damage to the well in attempting to remove the tool, was due to defendant’s negligence. Ciehowski testified that he felt that Dowell did not do the job in a workmanlike manner, and for that reason they did not owe Dowell for the work they did. Mosser testified that the whole trouble was basically caused by the sticking of the tool, and that in his opinion, the sticking of the tool and the damages caused to the well were due to improper and negligent work by Dowell. Ciehowski further testified that the reason Dowell had not been paid was that it did not do the job that it had contracted to do, and that such work in fact damaged the well.

Shasta Oil Company v. Halliburton Oil Well Cementing Company, supra, was a suit by Shasta against Halliburton for damages allegedly arising out of Halliburton’s failure to properly cement the well. Halliburton filed a cross action asserting that at the request of Shasta it did cement work on the well at an agreed consideration of $550.00, which was the usual and customary cost, and that by reason thereof, Shasta owed it $550.00. Shasta contended that the work was worthless and without value. The Court stated that there was evidence to support such contention and cited several cases holding that if one represents himself as a workman, he impliedly covenants that he will perform the work skillfully; and, in an action for work and labor, it is a good defense that the work was done so badly as to be of no value or benefit to the person for whom it is done. In Moody v. Messer, 489 S.W.2d 319 (Tex.Civ.App.-Corpus Christi 1972, no writ), the Court stated:

In the absence of an express agreement in the contract to the contrary, accompanying every contract is a common-law duty to perform the work agreed to be done with care, skill, reasonable expedience and in a good and workmanlike manner; and, if the work is not performed in such manner and the work proves to be worthless, then the person performing the same will not be permitted a recovery therefor.

Clearly, a fact issue exists as to whether the services performed by Dowell had any value to Ciehowski, and under the record there is sufficient evidence to support both the submission of Special Issue No. 15 and the jury’s answer thereto. Defendant’s Point of Error No. 13 is overruled.

By its last point of error defendant asserts that the trial court erred in entering judgment for one of the plaintiffs, Sawyer, who had judicially disclaimed any interest in the subject matter of the lawsuit, and in entering judgment for plaintiffs collectively without evidence of their particular interest in the proceedings and without apportionment of their damages.

Defendant’s basic complaint on this point of error is that no attempt was ever made to prove the nature and extent of the interest which the- various plaintiffs had in the subject matter of the lawsuit; there was no evidence as to the proportion or interest the various plaintiffs had in the losses allegedly sustained; and, the judgment makes no attempt to segregate or apportion damages among the various plaintiffs.

The judgment decrees that plaintiffs recover the sum of $76,706.33 from defendant. Plaintiffs in this cause are Joseph F. Cichowski, John Petty, Roy Conroy, Arthur F. Albert, Jr., W. D. Bronson, L. H. Wharburton, Jr., Halbert Sawyer, John Suter, and Helen Boyce. It is to be remembered that the jury, in answer to special issues submitted, found that (a) the reasonable cost of remedial repairs necessary to remove the squeeze tool is $13,706.33; (b) the reasonable cost of drilling and completing an oil and gas well of the same dimensions, type, and depth of the Cichowski Well No. 2 is $66,000.00; (c) the reasonable salvage value of the well after the occurrence in question is $3,000.00; (d) the market value of Cichowski Well No. 2 immediately before the occurrence in question was $66,000.00, and immediately thereafter, $3,000.00. It is obvious the award of $76,706.33 is based on a sum of $66,000.00 less the sum of $3,000.00, or $63,000.00 plus the sum of $13,706.33, which aggregates a total of $76,706.33.

Rule 301, Tex.R.Civ.P., provides in part as follows:

Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.

In Texas & N. O. Ry. Co. v. Stevens, 24 S.W.2d 9 (Tex.Comm.App.1930, jdgmt. adopted), the railroad company contended that the Court of Civil Appeals erred in affirming the judgment for the reason that there were three parties plaintiff interested in the judgment and there is no provision in the law for an apportionment of an award among the several plaintiffs, other than by jury. The Court said:

In our opinion, this assignment is untenable. In the first place, the railway company is not interested in the matter of apportionment at all, and, even if the case ought to be sent back to have a jury apportion the judgment as finally affirmed by the Court of Civil Appeals, the only parties that could be concerned therein would be the three plaintiffs.

In Chandler v. Stewart, 90 S.W.2d 590 (Tex.Civ.App.-Texarkana 1936, writ dism’d), the plaintiffs in error complained that the judgment of the trial court was not responsive to the pleadings and therefore void, because the suit was by Curnegan and Stewart, each claiming an undivided one-half interest in the mineral estate in the land in question, whereas the judgment awarded Stewart alone the title to the entire estate in the whole tract of land. The Court said:

In our opinion, this judgment is not void, but, at most, is irregular, and as to Stewart is excessive. As regards the plaintiffs in error, we can see no reason for their complaint in this regard. The judgment effectively divested out of them the title to the whole of this tract of land, and it does not concern them which of the defendants in error gets the title, whether Stewart alone or Stewart and Curnegan in equal parts.

We fail to see how defendant is in any way hurt or damaged by the failure of the trial court to set forth exactly what interest each plaintiff has in the judgment awarded, or the failure to make an apportionment between the respective plaintiffs. This is a matter that is purely the plaintiffs’ concern.

Defendant also complains that the trial court erred in entering judgment for one of the plaintiffs, Sawyer, who they assert had judicially disclaimed any interest in the subject matter of the suit. Such alleged judicial disclaimers are based upon certain written interrogatories. In one such interrogatory, Sawyer was asked whether or not he had any interest in the well made the subject matter of the suit. Sawyer answered, “No assigned interest to my knowledge.” In two of the questions, he was asked to set forth each and every sand which he or any plaintiff claimed to have been damaged as a result of the Dowell squeeze job, and also, to set forth certain geological information in connection with his answers. In answer, Sawyer stated, “I have made no claim whatsoever.” Assuming, without deciding, that this is such a judicial disclaimer as to preclude Sawyer from any recovery, United States Fidelity & Guaranty Company v. Carr, 242 S.W.2d 224 (Tex.Civ.App.-San Antonio 1951, writ ref'd), we fail to see how defendant was in any way harmed. If plaintiffs see fit to give Sawyer a portion of the judgment awarded them collectively, this is a matter for them to determine, and defendant is in no way injured. If any error is shown, it is harmless error. Rule 434, Tex.R.Civ.P.

All of defendant’s points of error have been considered and all are overruled. The judgment is affirmed.

      . The provisions relied on by Dowell are as follows:
      Unless caused by Dowell’s willful misconduct or failure to exercise good faith, customer agrees to be fully responsible for and secure Dowell against:
      (i) Liability for damage to property of customer (and well owner if different than customer), this provision applying to but not limited to subsurface damage and surface damage arising from subsurface damage;
      (ii) Liability for reservoir loss or damage, or any property damage or personal injuries resulting directly or indirectly from subsurface pressure, well blowout or cratering, or losing control of the well;
      (iii) Liability for any damages whatever, resulting directly or indirectly from a subsurface trespass arising out of any servicing operation performed by Dowell for customer;
      Additional terms and conditions under which the work was performed provide as follows:
      a. If tools, equipment or instruments of Do-well are lost in a well, customer agrees to make a reasonable effort at customer’s risk and expense to recover same; and, if unable to recover, to pay Dowell for same unless such loss or damage was caused solely by Dowell’s negligence.
      b. Unless caused by Dowell’s willful misconduct or failure to exercise good faith, Do-well shall not be liable for and customer shall secure Dowell against any liability for damage to property of customer (and well owner if different from customer) resulting directly or indirectly, from tools, equipment or instruments of Dowell being lost in a well.

      . In Special Issue No. 13 the jury found that the reasonable cost of drilling and completing an oil and gas well of the same dimensions, type, and depth of Cichowski’s Well No. 2 in Jim Wells County on the date of the occurrence in question was $66,000.00. In Special Issue No. 14 the jury found that the reasonable salvage value of Cichowski’s Well No. 2 in Jim Wells County after the occurrence in question was $3,000.00. Defendant makes no attack on the jury’s finding as to Special Issue No. 14.

      . In Special Issue No. 12A the jury found that the market value of the well involved immediately before the occurrence in question was $66,000.00, and in Special Issue No. 12B the jury found that the market value immediately after the occurrence in question was $3,000.00. Defendant does not complain of the jury’s answer to 12B.


author: DIES, Justice.

text:
    AMOCO PRODUCTION COMPANY, Appellant, v. Ralph P. MAYER et al., Appellees.
    No. 7832.
    Court of Civil Appeals of Texas, Beaumont.
    June 24, 1976.
    Rehearing Denied July 15, 1976.

      W. B. Browder, Jr., Midland, for appellant.
    Glenn W. Lewis, Richard W. Davis, San Angelo, for appellees.
   DIES, Justice.

This is a venue appeal. Appellees, members of the Mayer and the Stringer families (sometimes called Mayers herein) are lessors in various oil and gas leases in Schleicher County. The instruments contain the following clause:

“. . . on gas, including casinghead gas or other gaseous substance, produced from said land and sold or used off the premises or in the manufacture of gasoline or other product therefrom, the market value at the well of one-eighth of the gas so sold or used, provided that on gas sold at the wells the royalty shall be one-eighth of the amount realized from such sale. . . . ” (Emphasis supplied.)

Amoco Production Company (Amoco) is owner of the leases and, subsequent to execution of the leases with the Mayers, contracted with Lone Star Gas Company (Lone Star) to sell the gas from the lands for a price of thirty-eight cents per million BTU, with delivery at various points. The May-ers contend that the sales of the gas did not take place at the wells, that they are entitled to royalty based on market value of the gas and are not limited to the price set by Amoco and Lone Star. The market value of gas is considerably greater now than thirty-eight cents per million BTU. Amoco filed its plea of privilege to transfer the case to Harris County, Texas. After a non-jury hearing, the court overruled the plea from which Amoco perfects this appeal.

Amoco contends the provisions under subdivision 14 of art. 1995 Tex.Rev.Civ.Stat. Ann. (1964) do not apply to this case. This subdivision reads:

“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

We have carefully examined the Mayers’ pleading to determine “the principal right asserted — and the relief sought. .” See 1 R. McDonald, Texas Civil Practice § 4.22.2 at 488 (1965); Texaco Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App.1963). While it is true they (appellees May-ers) ask for a removal of a cloud on their title, it is clear that the dispute is over royalties as previously stated in this opinion. In fact, before the hearing began, the Court asked:

“The main issue is the construction of this royalty, gas royalty, clause in the lease. Is that correct?
“MR. BROWDER [Amoco’s attorney] A: That’s correct, Your Honor.
“MR. LEWIS [Mayers’ attorney] A: That is correct.”

This being so, the following authorities reject the application under subdivision 14 of 1995 Tex.Rev.Civ.Stat.Ann. (1964). Shamrock Oil and Gas Corporation v. Price, 364 S.W.2d 260 (Tex.Civ.App. — Amarillo 1963, no writ); Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969 (1951).

We next consider whether venue is proper in Schleicher County under subdivisions 23 and 27 of art. 1995 Tex.Rev.Civ. Stat.Ann. (1964). The question considered first, is whether appellees’ cause of action or part thereof arose in that county. The leases involved here show they were signed in Harris County. They do not fix the place of payment of gas royalties. This identical question was presented in Texas Oil & Gas Corporation v. Allgood, 492 S.W.2d 647, 649-650 (Tex.Civ.App. — Tyler 1973, no writ), where the court said:

“The only proof offered by appellees for the purpose of showing the cause of action or a part thereof arose or accrued in Upshur County was the oil and gas lease. As stated, the lease contract was not made in Upshur County and there is nothing in the instrument obligating appellant to pay in Upshur County. Appel-lees argue that since the land was situated in Upshur County and appellant performed its obligation of drilling wells and producing gas in that county, appellant’s obligation to pay royalty was also performable in that county. With this contention we cannot agree. The fact that the written instrument may have obligated appellant to drill wells in Upshur County does not constitute any evidence that appellant agreed to pay royalty in Upshur County.”

See also Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.— Tyler 1973, no writ); Shamrock Oil and Gas Corporation v. Price, 364 S.W.2d 260 (Tex.Civ.App. — Amarillo 1963, no writ). We follow these decisions and hold that appellees’ cause of action, or part thereof, did not arise in Schleicher County under subdivisions 23 and 27 of art. 1995 Tex.Rev.Civ.Stat.Ann. (1964).

We next consider whether there is proof Amoco had an agency or representative in Schleicher County as mentioned in subdivisions 23 and 27 of art. 1995. To qualify as an agent or representative under these exceptions, it must be shown the person has discretionary power. Brazos River Trans. Elec. Cooperative v. Vilbig, 244 S.W.2d 266 (Tex.Civ.App. — Dallas 1951, no writ). Mere proof that the person is an employee or servant is not sufficient. Ideal Baking Company v. Boyd, 417 S.W.2d 613, 617 (Tex.Civ.App. — Tyler 1967, no writ). Pepsi-Cola Company v. Spangler, 401 S.W.2d 923 (Tex.Civ.App. — Texarkana 1966, no writ). See also Humble Oil & Refining Company v. Preston, 487 S.W.2d 956, 957 (Tex.Civ.App. — Beaumont 1972, writ dism’d). Our Supreme Court has used the term “broad powers” in defining representative. Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194 (1952). We have no such proof in this record. There is some proof that Amoco personnel at times were present in Schleicher County and that Amoco signs were erected on appellees’ lands, but none of the testimony identifies any individual as having the kind of discretionary power required by the cases we cite above. We hold there is no evidence Amoco had an agent or representative in Schleicher County.

Finally, we consider whether venue was established in Schleicher County under subdivision 29a of art. 1995 Tex.Rev.Civ.Stat. Ann. (1964) which reads:

“Two or more Defendants. — -Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

This requires (a) the suit must be against two or more defendants, (b) all defendants must reside outside the county of suit, (c) venue must be proper as against at least one defendant, (d) defendant seeking a venue change must be a necessary party. 1 R. McDonald, Texas Civil Practice § 4.36 (1965); Fireman’s Fund Insurance Company v. McDaniel, 327 S.W.2d 358 (Tex.Civ.App. — Beaumont 1959, no writ). Lone Star was originally in the posture of a plaintiff with appellees becoming cross-plaintiffs. But even assuming appellees have venue against Lone Star, Amoco is a necessary party only “if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly sua-ble in that county can be obtained only in a suit to which both defendants are parties.” Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944). Joint tort feasors who are jointly and severally liable for the same act are not necessary parties. Leonard v. Abbott, 366 S.W.2d 925 (Tex.1963).

Originally this suit was brought by Lone Star against the Mayers — appellees— in the District Court of Schleichér County to enjoin the Mayers from interfering with Lone Star’s construction of a pipeline. The Mayers filed a cross-action (impleading Amoco). The Mayers complain of the Exploration Funding Agreement and Gas Purchase Agreement entered into by Lone Star and Amoco alleging that Lone Star would pay all drilling costs and “[i]f a well should prove to be a producer of oil, it would be equipped and completed through the tanks with Lone Star money”; that “Lone Star’s only resource for payment was 7/i6ths of the production, if and when there was production, and without interest in any event”; that “[t]he opportunity for such a contract places an intolerable burden on the lessee’s duty to deal fairly with or on behalf of the lessors whose royalty interests it is throwing into the deal”; that “[a] dangerous conflict of interest is created within this contract”; ánd “[njeither Amoco nor Lone Star, nor the two of them acting together, should be allowed to set the price to be paid the royalty owners”; that “there is no way to translate into dollars Vsth of the ‘amount realized’ from the gas sold to Lone Star under the terms of the . . . contracts.” Appellees then ask that the contracts be held of no effect as to their royalties.

These assertions sound in tort; but, irrespective of that, it is clear Amoeo’s presence in Schleicher County is not necessary to appellees’ case against Lone Star. We hold that Amoco is not a necessary party.

Amoco’s point that the trial court erred in overruling its plea of privilege because no exception to exclusive venue in the county of Amoco’s residence exists in this cause is sustained. The judgment is reversed and the cause is remanded to the trial court with instruction to sever appel-lees’ cause of action against Amoco from the remainder of the suit and to transfer the severed cause to one of the district courts of Harris County, Texas.

REVERSED and REMANDED with instructions.

STEPHENSON, J., not participating.