author: CHADICK, Chief Justice.

text:
    Guy A. ALLEN, Jr., et al., Appellants, v. Ronald H. LINAM et al., Appellees.
    No. 8446.

    Court of Civil Appeals of Texas, Texarkana.
    April 19, 1977.
    Rehearing Denied May 17, 1977.

      Tony Hileman, Jefferson, for appellants.
    Howard Carney, Jr., Carney, Mays & Carney, Atlanta, for appellees.
   CHADICK, Chief Justice.

This is an appeal in a trespass to try title case. Summary judgment motions filed by the several defendants were sustained in the trial court and judgment was entered that plaintiffs take nothing. The trial court judgment is affirmed.

The plaintiffs pled that the title of A. L. Allen and his wife, Virginia, to an 11/isth undivided interest in the two hundred acres of land in suit vested in them under the Texas law of intestate succession and that they were ousted from possession of the land by the defendants on January 1, 1954. The defendants pled, as vested in them, the title to the land that was conveyed by a sheriff’s deed to E. R. Allen dated December 5, 1928. The deed was executed pursuant to judgment and an order of sale of the District Court of Cass County, Texas, in favor of the State of Texas, as plaintiff, against the “Heirs of Mrs. Genie Allen, Estate, Defendants.” Other pleadings of the parties will be noticed when appropriate to an issue under discussion.

A. L. Allen and his wife, Virginia, both deceased, were survived by five children, named respectively, Harry 0., Guy A., Ernest R., Albert R. and Elsie. All except Harry 0. Allen were deceased at the time this action was instituted. The plaintiffs in this action, appellants here, are Harry 0. Allen and the children of Guy A. Allen, Albert R. Allen, Elsie Allen Leroy and Mrs. Guy A. Allen, Jr., the widow of Guy A. Allen, Jr., deceased. The defendants, ap-pellees here, are Ernest R. Allen’s child, Ernest R. Allen, Jr., his remarried widow, Beatrice Teagarten, and her husband, Paul Teagarten, together with Ronald H. Linam and Armco Steel Corporation, all claiming interests as successors in title to Ernest R. Allen. Hereafter the parties will be referred to by their designation in the trial court.

The first issue raised is that the sheriff’s deed relied upon by the defendants is void and conveyed no title because the judgment authorizing it was void on its face. The minutes of the District Court of Cass County show that a judgment was rendered therein on October 15, 1928, in case No. T-3922, styled State of Texas v. Heirs of Estate of Genie Alien, in which the state was awarded a recovery of delinquent taxes levied against the land in suit for the years 1926 and 1927 in the aggregate sum of $119.41, together with costs and foreclosure of the tax lien securing payment thereof. The judgment decreed that an order of sale issue and the land be sold in satisfaction of the judgment. The sheriff’s return on the order of sale shows the land was sold to E. R. Allen and deed to him executed December 5, 1928. The deed was recorded in the Deed Records of Cass County, January 4, 1929. The case file containing all court papers was withdrawn from the District Clerk’s Office in 1937 and never returned. The court minutes, the sheriff’s return and the sheriff’s deed shown by the deed records are the only existing documents that tend to show the proceedings in and disposition of the delinquent tax suit.

When the delinquent tax suit was instituted in 1928, Tex.Rev.Civ.Stat.Ann. art. 2040 stated that where “. property . . . has accrued to . heirs as such, of any deceased person, . any party having ... [a] cause of action against them relative to such property, if their names be unknown to him, may bring [a cause of] action against them, their heirs or legal representatives, describing them as the heirs of such named ancestor” by complying with the further provisions of the article. The district court was authorized by this statute to entertain suit against the heirs of Genie Allen. See State Mortgage Corporation v. Affleck, 51 S.W.2d 274 (Tex.Comm.App.1932, holding approved); Underwood v. Pigman, 32 S.W.2d 1102 (Tex.Comm.App.1930, holding approved); State v. Bagby’s Estate, 126 S.W.2d 687 (Tex.Civ.App. Texarkana 1939, no writ); 54 Tex.Jur.2d, Taxation, Sec. 169.

Documents showing compliance or non-compliance with the provisions of Article 2040 are normally to be found among the file papers but in this instance the file is lost. In the absence of these documents, the district court being a court of general jurisdiction, a presumption arises that the proceedings were regular and in compliance with Article 2040. Harvey v. Peters, 227 S.W.2d 867 (Tex.Civ.App. Fort Worth 1950, no writ); Moody v. Gayle, 311 S.W.2d 419 (Tex.Civ.App. Houston 1958, no writ); United States v. 847 Acres of Land, Etc., D.C., 89 F.Supp. 933; 34 Tex.Jur.2d, Judgments, Sec. 345 and 354; 1 Freeman On Judgments, Sec. 392 (5th ed. 1925). The thrust of plaintiffs’ argument reaches beyond the regularity of the proceedings, though no concession is made in that respect, and asserts that there can be no valid citation to or judgment against an estate as such. Cited in support of the proposition are Perry v. Whiting, 56 Tex.Civ.App. 550, 121 S.W. 903 (1909, writ ref’d); Denman v. State, 85 S.W.2d 252 (Tex.Civ.App. San Antonio 1935, no writ); Perez v. E. P. Lipscomb Co., 267 S.W. 748 (Tex.Civ.App. San Antonio 1924, writ dism’d). See also Camellia Diced Cream Company v. Chance, 339 S.W .2d 558 (Tex.Civ.App. Houston 1960, no writ); Neblett v. Butler, 162 S.W.2d 458 (Tex.Civ.App. Galveston 1942, writ ref’d w. o. m.); Parker v. Scobee, 36 S.W.2d 303 (Tex.Civ.App. Waco 1931, no writ). The proposition is sound in a proper context but is not applicable under the facts of this case.

The issue drawn is whether Case No. T-3922, styled State of Texas v. Heirs of Estate of Genie Allen was a suit against the Estate of Genie Allen or a suit against the heirs of Genie Allen. A reasonable interpretation of the language used is that judgment runs against the heirs of Genie Allen, the word estate is surplusage and contributes nothing to the thought expressed. The phrase heirs of the Estate of Genie Allen ordinarily induces understanding equivalent in meaning to the phrase heirs of Genie Allen because the heirs of Genie Allen and the heirs who take her estate are the same persons. The word heirs, when used in its technical legal sense in Article 2040, applies to persons appointed by law to succeed to the estate of an intestate decedent. Bouvier’s Law Dictionary (3rd Rev., 8th ed.). The face of the judgment does not show it to be void.

It has been noted that the plaintiffs instituted a trespass to try title suit and specially pled their title; on demand of the defendants they filed an abstract of the title documents upon which they relied. Such pleadings restricted the plaintiffs to proof of the title pled. 56 Tex.Jur.2d, Trespass To Try Title, Sec. 86. Nothing in the plaintiffs’ posture before the court or trial pleadings is construable as an action or pleading invoking the equity power of the trial court to set aside the sheriff’s deed emanating from the judgment for delinquent taxes. The plaintiffs’ brief in this Court, however, assumes that the tax judgment and deed are voidable, if not void, and should have been declared void because of improper citation of defendants, failure to join as parties to the suit all persons visibly in possession of the land, as well as all residents of the state actually or constructively known to have an interest in the land. In the absence of pleadings seeking such equitable relief, that is to say an action for cancellation of the sheriff’s deed, these issues would not arise in a trespass to try title case. 56 Tex.Jur.2d, Trespass To Try Title, Sec. 90. Moreover, a plaintiff has the burden of proof in an action for cancellation. Unless pled by the plaintiffs and summary judgment proof tendered, cancellation issues would not arise on the defendants’ motion for summary judgment. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); 4 McDonald’s, Texas Civil Practice, Sec. 17.-26.2. There is no basis in this record for the trial court to have considered such issues.

As the discussion indicates, this Court must hold the sheriff’s deed was not void. As a valid deed, the instrument conveyed to the defendants a superior title to the land and supports the take nothing judgment of the trial court. The record shows the land was deeded to Virginia Allen after she was married to A. L. Allen. Her husband’s name does not appear as a grantee in the instrument. Presumptively the land was community property and A. L. Allen had an equitable title to his interest therein. The silence of the briefs of both parties implies recognition or agreement that the sheriff’s deed, if valid, conveyed A. L. Allen’s interest as well as that of his wife. Such agreement or recognition is compelled by Heilman v. Huebner, 234 S.W.2d 117 (Tex.Civ.App. Galveston 1950, writ ref’d n. r. e.); Harvey v. Humphreys, 178 S.W.2d 733 (Tex.Civ.App. Galveston 1944, writ ref’d w. o. m.); Love v. R. S. Allday Supply Co., 106 S.W.2d 830 (Tex.Civ.App. Eastland 1937, writ dism’d).

The second point of error briefed by the plaintiffs is that the trial court erred in granting the defendants’ motion for summary judgment because “proponents of the statutes of land limitations always have the burden of obtaining favorable fact-findings thereon.” As the record is understood, the take nothing judgment in the trial court is based upon the defendants’ superior title. Title was not awarded to the defendants on the basis of limitations. The court merely determined that the plaintiffs were not entitled to recover. See 4 McDonald’s, Texas Civil Practice, Sec. 17.11. No error is shown.

The judgment of the trial court is affirmed.

On Motion For Rehearing

In opposition to the defendants’ separate motions for summary judgment, the plaintiffs filed an affidavit that Elsie Allen Leroy, one of the heirs of A. L. and Virginia Allen, resided on the land in suit from 1920 to 1931 when Elsie Allen Leroy and family were ejected from the land. Thus, the record contains evidence that an heir of Genie Allen was in visible possession of the land for some years prior and at the time the delinquent tax suit was instituted in 1928.

The plaintiffs argue the affidavit raises a fact issue that defeats the defendants’ summary judgment motions because the establishment of such visible possession at and prior to the time the suit was filed renders the judgment in the tax case inefficacious under authority of Scales v. Wren, 103 Tex. 304, 127 S.W. 164 (1910). The contention is that the judgment against the heirs of Genie Allen did not bind an heir whose name was known or could have been ascertained by proper investigation at the time the tax case was filed. Solution of the question presented may be found in an analysis and comparison of the scope of the provisions of Tex.Rev.Civ.Stat.Ann. art. 2040 and art. 7342. The first mentioned statute pertains to suits against heirs to the property of a decedent and the second pertains to tax suits against unknown owners of land.

Article 7342 is the successor article to that under consideration in Scales v. Wren, and as the statute did in that case, contains provisions that authorize suits to foreclose tax liens and collect taxes on land when the name of the land owner or owners is unknown. The statute authorizes service of process upon such unknown owners by newspaper publication and directs that such process issue on the affidavit of the attorney for the state setting out that the owner or owners are unknown to the attorney for the State, and that after inquiry cannot be ascertained. It is pointed out in Scales v. Wren that suit is authorized by the statute against unknown owners and not against owners who are known or who may be ascertained by proper inquiry. Therefore, under Scales v. Wren, when it is shown in a collateral proceeding that the land owner was known at the time of suit or might have been ascertained by proper investigation, judgment against an unknown owner cited by publication does not bind an owner known or ascertainable at time of suit.

Article 2040 provides:
“Where property in this State has been granted or has accrued to the heirs as such, of any deceased person, . any party having a claim or cause of action against them relative to such property, if their names be unknown to him, may bring an action against them . as the heirs of such named ancestor .
If the plaintiff, his agent, or attorney, shall make oath that the names of such heirs . . . are unknown to the affi-ant, the clerk shall issue a citation for such heirs . . . addressed to the sheriff or any constable of the county in which such suit is pending. Such citation shall contain a brief statement of the cause of action, and shall command the officer to summon the defendant by making publication of such citation as provided in the preceding article.” (Emphasis added.)

The language of the article authorizes citation of heirs by publication upon oath of a plaintiff, his agent or attorney, that the names of heirs are unknown to affiant. The reach of this provision is distinctly different and less demanding than the requirements of Article 7342 wherein the State’s attorney is compelled to swear the name of the owners of land is unknown to him and cannot be ascertained by statutorily mandated investigation. Article 2040 places no burden on the affiant to make a particular investigation, a show of want of knowledge is all that is required. The burden placed upon the plaintiff, his agent or attorney, is discharged by oath that the heirs’ names are unknown to affiant.

As stated in the original opinion, the presumption in the tax case, in the absence of the file papers, is that a sufficient affidavit was made by counsel. The conclusion is inescapable that the presumptive affidavit gave the court jurisdiction of the tax case and that failure to ascertain, by diligent inquiry, the names of the heirs of Genie Allen, deceased, is at most an irregularity in the tax case that may not be reviewed in this collateral proceeding. Although apparently at odds with some views expressed herein, State v. Bagby’s Estate, 126 S.W.2d 687 (Tex.Civ.App. Texarkana 1939, no writ), considered a direct appeal from the district court and held that an affidavit “regular on its face under the provisions of Article 2040” was sufficient to give the appellate court jurisdiction of the appeal and treated failure to investigate as an irregularity. No case directly in point has been found but the reasoning of Scales v. Wren presents no obstacle to the conclusion here drawn that judgment in the tax case is not void but at most voidable.

It follows that in this, a trespass to try title case, effort to set aside judgment in the tax case constitutes a collateral attack on the judgment. Tex.Rev.Civ.Stat.Ann. art. 5529 bars an attack, either collateral or direct, after expiration of four years from the date the judgment in the tax case became final. See also 34 Tex.Jur.2d, Judgments, Sec. 258, 259 and 260. It is undisputed that more than four years elapsed before the instant suit was filed. Authorities cited in the footnote to the original opinion are applicable. The motion for rehearing is overruled.

       Defendants’ brief in this Court relied upon the four year statute of limitations, Tex.Rev.Civ. Stat.Ann. art. 5529. The record shows the delinquent tax judgment was rendered in 1928, plaintiffs admittedly have not had possession of the land since 1931 and this suit was instituted in 1974. Effort to set aside the tax judgment and sheriff’s deed because of errors in the proceedings is obviously a collateral attack on the judgment that is impermissible, as would be a direct attack, unless instituted within four years. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942); Moody v. Gayle, 311 S.W.2d 419 (Tex.Civ.App. Houston 1958, no writ); Holbert v. City of Amarillo, 294 S.W.2d 243 (Tex.Civ.App. Amarillo 1956, writ ref’d n. r. e.); Clark v. Puls, 192 S.W.2d 905 (Tex.Civ.App. Amarillo 1946, writ refd n. r. e.); Robinson v. State, 143 S.W.2d 629 (Tex.Civ.App. Dallas 1940, writ dism’d); Restivo v. Franklin, 177 S.W.2d 811 (Tex.Civ.App. Waco 1944, writ refd).


source: Caselaw Access Project

author: KLINGEMAN, Justice. BARROW, Chief Justice,

license: Public Domain

text:
    Lorenzo Q. AVILA, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. 15696.
    Court of Civil Appeals of Texas, San Antonio, Texas.
    April 20, 1977.
    Rehearing Denied June 8, 1977.

      Jerald Abrams, Knickerbocker, Abrams & Cowan, Eagle Pass, for appellant.
    C. G. House, House, Mercer, House, Brock & Wilson, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a workmen’s compensation case arising out of an injury sustained by appellant, Lorenzo Q. Avila, on March 13,1974 in the course and scope of his employment with his employer, who carried workmen’s compensation insurance with appellee, United States Fidelity and Guaranty Company. The parties will be herein referred to as they were in the trial court. The parties stipulated that the only issues in conflict were those of producing cause and extent and duration of plaintiff’s disability. The jury found that the injury on March 13, 1974 was a producing cause of total incapacity; that the beginning date of such total incapacity was March 13, 1974; and that such total incapacity ended on November 13, 1974. Judgment was entered for plaintiff in the amount of $1,665.75 as accrued compensation and interest, and further awarding him certain stipulated to medical expenses.

Plaintiff asserts nine points of error which can be divided into three general areas: (1) Points of error complaining of error of the trial court in admitting into evidence certain testimony of Dr. Newsom Stool pertaining to certain X-rays taken in 1973 which were not introduced into evidence. (2) Points of error complaining that the trial court erred in admitting into evidence a letter dated April 7, 1975 (Defendant’s Exhibit No. 16) from Dr. John Lang-ston to the Texas Rehabilitation Commission, and admitting certain other testimony of Dr. John Langston. (3) One point of error asserting that the costs of placing a written deposition in the transcript should be taxed against defendant.

We see no point in setting forth in great detail the voluminous testimony. Plaintiff sued for and asserts that he is entitled to total and permanent disability benefits and, alternatively, for maximum partial disability benefits. Defendant, in addition to the usual defenses, also plead that the disability had been caused by prior or subsequent accident or by disease or diseases which are not connected with the accident involved.

A number of medical and lay witnesses testified as to the extent and duration of plaintiff’s injuries and disability.

By his first six points of error, plaintiff asserts that the trial court erred in admitting into evidence Dr. Stool’s deposition testimony as to his observations and conclusions based on X-rays allegedly taken of plaintiff in 1973, for the reason that: (1) such X-rays were never produced or admitted into evidence; (2) such X-rays were not available for inspection and cross examination by plaintiff or his counsel either at the time of taking the deposition or at the time of the trial; (3) such X-rays were never properly proven up.

Dr. Newsom Stool is an orthopedic surgeon. He first saw plaintiff in May of 1974, approximately two months after the injury, on a referral from one of plaintiff’s doctors. Dr. Stool testified that at such time X-rays were available, which were either carried to him by plaintiff or mailed to him. Plaintiff testified that when he first visited Dr. Stool he carried some X-rays with him, and that when he returned to Del Rio he brought such X-rays with him and returned them to the Memorial Hospital in Del Rio.

Dr. Stool testified that he reviewed X-rays made in Del Rio both before and after the accident. Plaintiff’s attorney objected to any evidence concerning such X-rays since the X-rays were not available. The trial court allowed the testimony subject to being connected by showing of unavailability and due diligence. Although it is somewhat indefinite as to how many X-rays were involved, it would appear from a review of the entire record that none of the X-rays examined by Dr. Stool at this visit were ever introduced into evidence. He testified that he had made a comparison of the 1973 X-rays with some that were made after the accident, but that such comparison was somewhat limited because the 1973 X-rays were front views and did not cover all of the area covered in the latter X-rays. He testified as to his findings on such examination in which he found some evidence of an injury but also some spurring, and that he didn’t really find much wrong on the May 7 date; that he found some degenerative changes in X-rays taken. He also testified that a ruptured disc causes back pain with numbness and limping; that a ruptured disc would not be visible on the X-rays; and that more tests would have to be done on plaintiff to determine whether he had a ruptured or herniated disc.

Dr. Joe Sanders, a radiologist at the Val Verde Memorial Hospital, testified that plaintiff was in the hospital in 1973 because of a kidney stone and some X-rays were taken at such time; that a search had been made for these X-rays but that they could not be found; and that also the X-rays made in the hospital in April 1974 and July 1974 could not be found.

Plaintiff asserts that the admission of the testimony of Dr. Stool was harmful error because: (1) the X-rays were not admitted into evidence; (2) they were not available for inspection and cross examination either in the court or at the time of taking the deposition; (3) there was no proper foundation for such testimony because of the absence of testimony showing (a) the name and identity of the person who took the X-rays; (b) that such X-rays were taken by a person competent to make them; (c) that they were in fact X-rays of the plaintiff; (d) that such X-rays correctly portrayed the area of the body which they purported to represent; (e) that they were made in the regular course of business.

There are numerous cases and authorities discussing the allowing of testimony as to X-rays which are not in evidence. In 3 Wigmore on Evidence § 795 at 246 (1970), it is stated:

In view of this importance of interpretation, a witness who testifies orally to knowledge obtained by studying an X-ray photograph must be prepared to produce the photograph-print . . .for cross-examination to the grounds of his interpretation.

In Community Chapel Funeral Home v. Allen, 499 S.W.2d 215 (Tex.Civ.App. — Beaumont 1973, writ ref’d n. r. e.), the court said:

The Texas cases concerning whether an X-ray may be interpreted without its physical presence in court are divided. Some have permitted it and some have not, usually on the ground that the X-ray was the best evidence of what it revealed.
While we are unable to say that an X-ray is the best evidence of what it reveals — since ordinarily it requires an expert to interpret one — nevertheless, where possible, we believe fairness requires its presence in court during interpretation. This gives the opposing side and other specialists — and at times even the jury — opportunity to scrutinize the testimony. A contrary rule, we think, could lead to much abuse.

In Drake v. Walls, 348 S.W.2d 62 (Tex. Civ.App. — Dallas 1961, writ ref’d n. r. e.), one point of error was that the court erred in permitting a witness for plaintiff, Dr. Goodfried, to testify as to his interpretation of X-rays made by another doctor where the X-rays were not in evidence. The court stated that the objections to his testimony should have been sustained and that X-rays constitute evidence of the contents, subject to interpretation by a skilled witness; opposing counsel being entitled to cross examine the witness with opportunity to test his memories and skills with the X-rays themselves before the jury. See also Texas Employers’ Ins. Ass’n v. Crow, 218 S.W.2d 230 (Tex.Civ.App. — Eastland), aff’d, 148 Tex. 113, 221 S.W.2d 235 (1949); Texas Indemnity Ins. Co. v. Phillips, 153 S.W.2d 503 (Tex.Civ.App. — Galveston 1941, writ dism’d).

Plaintiff also asserts that the testimony of Dr. Stool as to the X-rays involved was improperly admitted because there is total absence of evidence showing: (1) the name or identity of the person who took such X-rays; (2) that said X-rays were taken by a person competent to take them; (3) that the X-rays were in fact X-rays of plaintiff; (4) that the X-rays correctly portrayed the area of the body which they purported to represent; (5) how such X-rays were made; (6) that they were taken in the usual course of business by the person taking them.

In Hartman v. Maryland Casualty Co., 417 S.W.2d 640 (Tex.Civ.App. — Waco 1967, no writ), the plaintiff appealed in a workmen’s compensation case from a judgment which limited her to seven weeks of incapacity. A crucial element of the insurance company’s defense was that plaintiff had suffered a prior injury which caused much of her present incapacity. The insurance company introduced X-rays taken both in 1962 and 1965 (before and after the claimed injury). The purpose of such X-rays was to show that plaintiff’s condition in 1965 was the same as in 1962. The 1962 X-rays were not properly proven up. The court stated there was no evidence as to who made the X-rays, how they were made, or whether they correctly portrayed what they purported to represent. The court held that it was harmful error to allow the 1962 X-rays.

In Texas Indemnity Insurance Co. v. Phillips, supra, the court said:

It is the established rule in this state that X-ray photographs of an injured person are not admissible in evidence without proof or admission by the parties that they are in fact X-ray photographs of the body of the injured person and that they are correct portrayals of his injuries [citing cases], and that, in the absence of such proof, the photographs and the testimony interpreting them, are immaterial and irrelevant, and therefore incompetent and are without vitality and can furnish no basis for a judgment.

In Cantu v. Casas, 265 S.W.2d 175 (Tex.Civ.App. — San Antonio 1953, writ ref’d n. r. e.), a doctor for plaintiff testified on the basis of X-ray photographs which were not introduced into evidence. The court held that it was prejudicial error to allow the testimony, stressing that the testimony interpreting the X-rays would be incompetent without evidence showing that the X-rays themselves are competent.

We have concluded that the trial court erred in admitting into evidence, over objections, the testimony of Dr. Stool pertaining to X-rays which were never admitted into evidence, for the following reasons: (1) plaintiff or his attorney had no opportunity to properly cross examine the witness because of the absence of such X-rays; (2) the X-rays were not sufficiently proved up in that there is (a) no positive evidence as to who made the X-rays; (b) that they were taken by a qualified technician or doctor; (c) that they correctly portrayed what they purported to represent; (d) that such X-rays actually portrayed the portion of the body where the injury was involved.

We next consider plaintiff’s contention that the trial court erred in admitting into evidence a letter of Dr. John Langston to the Texas Rehabilitation Commission which was admitted over objection. The contents of such letter may be summarized as follows: (1) that his examination and examination of X-rays indicate very little injury and some small disability; (2) that there appears to be an old compression injury to a part of the spinal area; (3) that his impression from such examination and X-rays is that there is a well healed fracture of L2, and degenerative disc disease of the lumbar spine; (4) that the patient should return to work; (5) that he believes that the most important thing to get him going back to work would be the settlement of his lawsuit.

A pertinent portion of the regulation here involved, 45 C.F.R. § 1361.47; 40 F.R. 54710 § 1361.47, is as follows:

(1) All information as to personal facts given or made available to the State agency, its representatives, or its employees, in the course of the administration of the vocational rehabilitation program, including lists of names and addresses and records of agency evaluation, shall be held to be confidential.
(2) The use of such information and records shall be limited to purposes directly connected with the administration of the vocational rehabilitation program.
(3) Information shall not be disclosed directly or indirectly, other than in the administration of the vocational rehabilitation program, unless the informed consent of the client has been obtained in writing.

We have found no cases involving an interpretation of this particular provision of the rehabilitation program or the provision of the Texas Education Code, but a case involving a somewhat similar provision of another such agency is the case of Texas Employers’ Ins. Ass’n v. Marshall, 436 S.W.2d 617 (Tex.Civ.App. — Eastland 1969, writ ref’d n. r. e.). This was a workmen’s compensation case where a doctor had examined Marshall, the injured employee, at the request of the Social Security Administration which was to pass on Marshall’s claim for financial aid. The doctor had made a written report to the agency. The Federal statutes and regulations involved were basically similar to the vocational rehabilitation statutes and regulations here involved, and provide that there shall be no disclosure of any information obtained by persons in the course of discharging duties of the Social Security Administration. The court said:

The statute and regulation prohibit any doctor who has performed a medical examination for the Social Security Administration from disclosing the information thus obtained. The information the doctor obtained by his examination of Marshall for the Social Security Administration in passing upon Marshall’s application for benefits is privileged.

It is defendant’s contention that even if the information was privileged or prohibited from disclosure, plaintiff here waived such privilege in submitting cross interrogation to Dr. Langston. One of the interrogatories submitted to plaintiff by defendant inquired of plaintiff the names and addresses of all physicians, surgeons, etc., who had examined him, and he listed Dr. Langston. Thereafter defendant took written interrogatories from Dr. Langston and plaintiff’s attorney submitted cross interrogatories. Defendant argues that by so doing plaintiff waived his alleged privilege.

The only case cited by defendant in support of such contention is Jones v. State, 159 Tex.Crim.R. 18, 261 S.W.2d 324, cert. denied, 346 U.S. 859, 74 S.Ct. 75, 98 L.Ed. 372 (1953), involving the prosecution of a defendant for refusing to support his minor children. An employee of the Department of Public Welfare testified that she had investigated the matter and had provided assistance in connection with her official duties. The Public Welfare Act provided that it was unlawful to disclose information concerning persons receiving assistance under various assistance programs. The court said:

We do not construe the statute mentioned as prohibiting an employee of the Department of Public Welfare from testifying as to what the witness may have observed as to the condition of children for whom aid is sought or extended by the department, nor testimony as to any report that such employee-witness may have made to the accused concerning the children’s needy circumstances. We think the act does prohibit testimony as to any report such employee may have made to the department, and any action taken on such report.

We do not regard such case as helpful to defendant’s position. The case was a criminal case involving an accused in a prosecution for nonsupport of his children. The children were the beneficiaries of such assistance provided by the Welfare Department. Such provision was not designed to protect persons who do not support their children. Further, the court held that the Act does prohibit testimony as to any report such employee made to the Department.

In the case before us, the letter involved is a report made to the Texas Rehabilitation Commission by the doctor who was directed to make an examination in connection with a claim for rehabilitation aid. The claimant was directed by the agency to go to such doctor for an examination.

There is a sound administrative, governmental, and social purpose that applicants for rehabilitation or certain other types of benefits be examined by a doctor selected by the administrative agency, and a full disclosure can best be obtained by an assurance that such information will be kept secret. It is clear from the language of this section of the Rehabilitation Act that the intent was that this type of record and information shall be held confidential and not subject to disclosure. The provision is couched in mandatory language. The regulation plainly provides that such information shall not be disclosed, directly or indirectly, unless the informed consent of the client shall have been obtained in writing. There is nothing in the record to show that this was done.

We have concluded that under the provisions of the regulations and the applicable statutes the court erred in admitting into evidence Dr. Langston’s letter to the Texas Rehabilitation Commission.

Defendant asserts that if any error was committed, it was harmless error. Rule 434 Tex.R.Civ.P. We disagree. A crucial element of the insurance company’s defense was that the plaintiff was suffering from a condition which existed at the time of the injury which caused much of his present incapacity. A material part of defendant’s testimony in this connection was dependent upon an interpretation of X-rays taken before the accident which were never introduced into evidence. In all probability, the verdict of the jury as to the extent and duration of the injury and disability was materially influenced by this testimony. In our opinion, the admission of such testimony was highly prejudicial. Such error was further compounded by the admission into evidence of Dr. Langston’s letter in which he states among other things, “I believe the most important thing to get him going back to work would be the settlement of his lawsuit.” This evidence was both inflammatory and prejudicial.

We have concluded the erroneous admission of the evidence hereinbefore discussed was harmful error and that this case must be reversed and remanded.

By one point of error, plaintiff asserts that in case of affirmance by this court of the judgment of the trial court, defendant should be taxed for the costs of including the deposition in the record, which he asserts has been improperly placed therein. In view of our decision herein reversing and remanding this case, we do not consider this point.

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

BARROW, Chief Justice,

concurring.

I concur that the letter of Dr. Langston to the Texas Rehabilitation Commission was improperly admitted. We do not have before us at this time the question of whether or not Dr. Langston could testify as to the result of his physical examination of plaintiff.

      . Some of the X-rays made after the accident were also not produced or introduced into evidence.

      . But see Kollmorgan v. Scott, 447 S.W.2d 236 (Tex.Civ.App. — Houston [14th Dist.] 1969, no writ); Maryland Casualty Co. v. Dicken, 80 S.W.2d 800 (Tex.Civ.App. — Dallas 1935, writ dism’d).

      . Tex.Educ.Code Ann. § 30.47 (1971). “It shall be unlawful, except for purposes directly connected with the administration of the rehabilitation program and in accordance with regulations, for any person or persons to solicit, disclose, receive, or make use of, or authorize, knowingly permit, participate in, or acquiesce in the use of any list of, or names of, or any information concerning, persons applying for or receiving rehabilitation, directly or indirectly derived from the records.”


author: RALEIGH BROWN, Justice.

text:
    AMOCO CHEMICALS CORPORATION et al., Appellants, v. Dorothea Mae SUTTON et al., Appellees.
    No. 5004.
    Court of Civil Appeals of Texas, Eastland.
    April 28, 1977.
    Rehearing Denied May 26, 1977.

      Mills, Shirley, McMicken & Eckel, Preston Shirley, V. W. McLeod, McLeod, Alexander, Powel & Apffel, Galveston, for appellants.
    Ronald D. Krist, Krist, McConnico & Gunn, Houston, for appellees.
   RALEIGH BROWN, Justice.

This premises liability case is a consolidation of three suits against Amoco Chemicals Corporation, owner and occupier of the premises, for the deaths of Robert Milton Sutton and Aquiles Salinas caused by their entrance into a nitrogen filled reactor and for personal injuries to Charles Marzka. Sutton and Salinas were employees of Ar-sco, Inc., a sandblasting and painting contractor under contract with Amoco to sandblast three reactors located in the “ultra-cracker unit” at Amoco’s Texas City refinery. Marzka, an employee of Catalyst Services, Inc., another contractor working on Amoco’s premises, was injured in attempting to rescue Sutton and Salinas from one of the reactors. New York Underwriters Insurance Company and Highlands Insurance Company, workmen’s compensation carriers for the employers intervened. Amoco, seeking indemnity, impleaded Ar-sco, Inc., as a third party defendant pursuant to a written contract containing an express indemnity provision. Based on a jury verdict, judgment was rendered against Amoco for the benefit of the survivors of Sutton, Dorothea Mae and Gregory Scott Sutton; the surviviors of Aquiles Salinas, Esperanza and Elizabeth Ann Salinas; Marzka; and intervenors, New York Underwriters Insurance Company and Highlands Insurance Company. Amoco was awarded judgment over and against Arsco for indemnity. Amoco files a limited appeal and Arsco appeals. We reverse and render in part and affirm in part.

Sutton and Salinas met their deaths and Marzka sustained injuries in reactor 101-D, the middle of three reactors known as 100-D, 101-D, and 102-D. The reactors were identical in appearance and size being approximately eighty feet in height, twelve feet in diameter and situated thirty to sixty feet apart. They were joined together at the top by a common catwalk. A temporary portable elevator had been installed by Amoco near 101 — D.

The large covers on top of the reactors had been removed by use of a crane in order that workers could gain access to the reactors. Smaller temporary manway covers had not been affixed to the top of either reactor. To enter a reactor, a ladder which reached from the top of the reactor down several floors within the reactor was used.

Mac Flores, a Catalyst foreman, who had worked in reactor 101-D all day, noticed at about 4:00 p. m. small fires erupting in the reactor. At a meeting between Catalyst employees and Amoco employees, attended by Marzka, it was agreed the heat in 101-D was too bad to continue working on it. Catalyst was to bring a life support van the next morning and resume working on 101-D. Such a van is used when the chance of fire is so great that it becomes necessary to work under a nitrogen purge, which removes all oxygen from the air. Steve Tho-ler, an Amoco employee, came to work at 4:00 p. m. and was instructed to purge 101-D with nitrogen. He did so sometime after 4:00.

Sutton and Salinas having worked a full day shift were requested by their supervisor, James R. Reyer, to work overtime. They returned to the ultracracker unit and went by elevator to the top of the reactors.

Sometime after 4:30 p. m., Amoco employees discovered Sutton and Salinas in reactor 101 — D. Marzka and Flores, as requested by Amoco, retrieved Sutton and Salinas. In the process, Marzka’s fresh air hose came loose and he was pulled out of the reactor by Flores. Sutton and Salinas were asphyxiated. Marzka’s injuries were caused by exposure to an oxygen deprived atmosphere.

Amoco argues the trial court erred in granting judgment for plaintiffs and inter-venors because as a matter of law (1) Sutton and Salinas were not invitees when they entered the reactor and thus Amoco breached no duty to them; (2) Amoco was absolved from any and all liability for the, deaths of Sutton and Salinas and the injuries to Marzka because J. R. Reyer, the supervisor of Sutton and Salinas had actual knowledge and appreciation of the dangers associated with entering the reactor and such knowledge was imputed to Sutton and s Salinas; and (3) Amoco was absolved from liability because Sutton was adequately warned the reactor contained nitrogen and of the dangers associated with entering the reactor under those conditions and since Sutton was the immediate foreman of Salinas such warning was imputed to Salinas.

Amoco concedes Sutton and Salinas were invitees as to the general area of the ultra-cracker unit. It contends, however, their status on entering reactor 101-D was reduced from that of invitees thereby absolving Amoco of liability.

Considering the matter of who is an invitee, the court in Texas Power & Light Company v. Holder, 385 S.W.2d 873 (Tex.Civ.App. — Tyler 1964, writ ref. n. r. e.) said:

“An invitee is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or the occupant or for their mutual advantage. 65 C.J.S. Negligence § 43(1), p. 508.
An implied invitation is one which is held to be extended by reason of the owner or occupant doing something dr permitting something to be done which fairly indicates to the person entering that his entry and use of the property are consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interests. 60 C.J.S. Motor Vehicles § 172, p. 510.
A servant or employee of another person who enters the premises on the business of his master, in which business the master and the owner or occupant have a mutual interest occupies the status of an invitee. Snelling v. Harper (Tex.Civ.App.), 137 S.W.2d 222; 60 C.J.S. Motor Vehicles § 174, p. 515.”

Amoco points to the rule enunciated in Burton Construction & Shipbuilding Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954):

“. . .A person may be an invitee as to certain parts of the premises but not as to others. The rule is stated in 30 TexJur. 863, Negligence, Sec. 180: ‘The owner or occupant may be held liable only where it appears that the victim sustained the injury while using a part of the premises which was designed for his accommodation or use. * * * A recovery is not sustainable where the evidence leads to the conclusion that “it could not have been reasonably anticipated” that he would attempt to go to the place in which the injury occurred.’

The extent of the area included by the invitation is discussed in 62 Am.Jur.2d, Premises Liability, § 46 as follows:

“ • . . The area of invitation will, of course, vary with the circumstances; it extends to all parts of the premises to which the purpose may reasonably be expected to take the invitee, and to those which are so arranged as to lead him reasonably to think that they are open to him. Otherwise stated, a possessor of land is subject to liability to another as a business visitor for such bodily harm as he sustains while upon a part of the land upon which the possessor gives the injured person reason to believe that his presence is permitted or desired because of his connection with the business or affairs of the possessor, and which as such is held open to the injured person as a business visitor.”

The test applied to determine whether or not a person is an invitee at the exact place of injury is whether the owner of the premises should have anticipated the presence of someone such as the plaintiffs at that particular place on the premises. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

In the instant case, one of the express purposes for which the Arsco employees were working in the area of the ultra-cracker unit was to sandblast the three reactors. To accomplish this, entry into each reactor was necessary.

Amoco’s safety manual required posting barriers, signs or tags, or blowing a whistle during or before the purge of nitrogen commenced. Amoco operators were to station one or two persons at the catwalk at the top of the reactors to prevent entry of any individuals during purging operations. None of these measures were followed.

The reactors were identical in size and appearance. The decision to purge was made shortly before a shift change, a time when one to two hundred people were working in the area of the ultracracker unit. Amoco knew the dangers of purging operations.

The jury concluded Sutton and Salinas were invitees of Amoco at the time and place of their deaths in reactor 101-D. Under the circumstances presented by the evidence, we cannot say as a matter of law their entry into reactor 101-D was not reasonably foreseeable by Amoco. As occupier of the premises, Amoco owed Sutton and Salinas the duty as stated in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963):

“The ‘no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof . . .”

See also: Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972).

Amoco contends it is absolved from liability for the deaths of Sutton and Salinas and the injuries to Marzka because the undisputed evidence shows that J. R. Reyer, the supervisor of Sutton and Salinas, had actual knowledge and appreciation of the dangers of entering the reactor. It argues such knowledge was imputed to Sutton and Salinas. Further, Amoco urges Sutton had been adequately warned that reactor 101-D contained nitrogen and of the dangers associated with entering 101-D under those conditions.

The court in Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967) did state:

“. . . While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.”

Amoco points to the testimony of Ike Brandon, A. L. Bucklew and J. R. Reyer to support its argument as to the knowledge and appreciation of the danger by Reyer and Sutton and the warning given to Sutton.

Ike Brandon and A. L. Bucklew were Amoco employees. J. R. Reyer was general foreman for Arsco, which was working under a contract with Amoco that contained an indemnity provision. Arsco is concerned not only with issues relating to indemnity but also with the question of primary liability of Amoco. Each of these witnesses are interested witnesses.

Justice Walker in Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458 (Tex.1969) considering the value of the testimony of an interested witness stated the rule as follows:

“. . . The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. This rule is not without exception, however, and conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. There is an added reason for recognizing the exception when the opposite party had the means and opportunity of disproving the testimony if it were not true, and failed to do so. On the other hand the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue. See James T. Taylor & Son, Inc. v. Arlington Ind. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371; Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640; McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722.”

The court in Papco, Inc. v. Eaton, 522 S.W.2d 538 (Tex.Civ.App. — Texarkana 1975, no writ) said:

“. . .A witness in a case is interested, and the credibility and weight to be given such witness’ testimony is a question solely for the jury, when the record shows a reasonable basis for the witness harboring a partisan attitude towards the outcome of the case. 98 C.J.S. Witnesses, § 538; Tex.Jur.2d Witnesses, Sec. 374. The testimony of an interested witness only raises an issue for jury determination; it is only when such testimony is ‘clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach’ the witness that such testimony must be given probative effect. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex. 1965); Tex.Jur.2d Witnesses, Sec. 373

Fact issues having been raised by these interested witnesses, the jury answered Special Issues 3 and 3a as follows:

“SPECIAL ISSUE 3
Do you find from a preponderance of the evidence that J. R. Reyer, either from his own knowledge or through communications from American Oil personnel, did not have adequate knowledge of the dangerous condition of Reactor 101-D, prior to the deaths of Robert Sutton and Aqui-las Salinas?
Instruction: ‘Adequate knowledge of the dangerous condition’ on the part of J. R. Reyer means that he, J. R. Reyer, actually knew of the condition of Reactor 101-D, i. e., that it was charged with nitrogen gas, and actually and fully appreciated the nature and extent of the danger thereby involved by one who encountered the condition by entry into said reactor.
ANSWER: ‘HE DID NOT HAVE ADEQUATE KNOWLEDGE’
OR
‘HE DID HAVE ADEQUATE KNOWLEDGE’
ANSWER: ‘He did not have adequate knowledge.’
SPECIAL ISSUE 3a
Do you find from a preponderance of the evidence that J. R. Reyer, prior to the deaths of Robert Sutton and Aquilas Salinas, acquired knowledge that American Oil Company intended to charge reactor 101-D with nitrogen gas and that such action was imminent and impending, and that J. R. Reyer actually and fully appreciated the nature and extent of the danger that a nitrogen charged reactor presented to anyone who entered therein.
Answer: ‘Yes’ or ‘No’
Answer: No.”

We have considered and overrule all points of error presented by Amoco.

Arsco argues the trial court erred in granting indemnity in favor of Amoco against it for the damages arising out of the deaths of Sutton and Salinas and the injuries to Marzka because of the indemnity agreement on the back of work order No. TL-41441. Arsco contends the indemnity agreement was not conspicuous enough to import fair notice to it; the deaths of Salinas and Sutton and the injuries to Marzka were not such as “arising directly or indirectly out of, or in connection with the performance of the contract” as required by work order No. TL^41441; and, the deaths and injuries resulted from the sole negligence of Amoco.

It is undisputed Douglas Hoover, President of Arsco, executed on behalf of Arsco, as contractor, contract form designated as work order No. TL-41441. This instrument on its front side contained the language:

“Instructions to Contractor: If you wish to perform the work described above upon the terms and conditions set forth on the front and reverse sides hereof, please sign the original and duplicate copies of this form in the space provided in the left hand corner below and return the duplicate copy to us before starting any work hereunder . .

Under Terms and Conditions on the reverse side is the following:

“4. Liability and Indemnity: Contractor shall be solely responsible for all materials, equipment and work until the Job is accepted by Company. Contractor shall reimburse Company for, and indemnify Company and hold it harmless from and against any and all loss, costs, damage, expense, claims, suits, and liability on account of any and all damage to, or loss or destruction of any property (including without limitation, the work covered hereunder and the property of Contractor, any subcontractors, and Company) or injury to or death of any person (including, without limitation, employees of Contractor, any subcontractors, and Company) arising directly or indirectly out of, or in connection with the performance of this Contract whether caused by a negligent act or omission of either party hereto, or their employees, or otherwise, except that Contractor assumes no liability for the sole negligent acts of Company, its agents, servants or employees.”

Hoover’s failure to read the indemnity agreement is of no consequence. The court in Gulf Oil Corporation v. Spence & Howe Construction Company, 356 S.W.2d 382 (Tex.Civ.App. — Houston 1962), affirmed, 365 S.W.2d 631 (Tex.1963) said:

“Appellee contends also that the indemnity agreement is not binding on it because it did not know this particular form of indemnity was in the purchase order and it should have specifically been called to his attention. There is no suggestion of any fraud, overreaching of any kind or mutual mistake. In the absence of such parties are bound by the provisions of the writing They are charged with knowledge of what they can know by reading the instrument.”
13 Tex.Jur.2d, Contracts § 259 states:
In the absence of fraud, misrepresentation, or concealment, one who has the capacity to make a contract will be conclusively presumed to have known the purpose of an agreement executed by him, the consideration therefor, and also the meaning and legal effect of the terms used therein. Therefore, if a person signs a written contract with full opportunity to inform himself of its provisions, he will not thereafter be permitted to avoid the agreement on the ground that he was mistaken as to, or ignorant of, its contents. In short, he may not thereafter successfully claim that he believed that the provisions of the contract were different from those plainly set out in the agreement, or that he did not understand the meaning of the language used in the agreement. This principle is especially applicable where a party to a contract has read the instrument or has undertaken to examine it for himself.”

The court in Joe Adams & Sons v. McCann Construction Company, 475 S.W.2d 721 (Tex.1971) 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. This was pointed out in Spence & Howe Construction Co. v. Gulf Oil Corp., Tex.Sup., 365 S.W.2d 631, where we stated that:
<* * * 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 indemnitor would be held liable for damages resulting from the negligence of the indemnitee.
******
In Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, this Court discussed the rule that an indemnity agreement will not protect the indem-nitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms * *
******
The general rules relating to the construction of contracts are applicable to indemnity contracts. We agree with the statement of the Court of Civil Appeals that, “In construing contracts we must seek the intention of the parties from the language used in the contract. All of the language used is to be considered . . . ”

See also: Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559 (Tex.1972).

In Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818 (Tex.1972), the court said:

“We have, in fact, progressed toward the so-called ‘express negligence’ rule as near as is judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the in-demnitee harmless from liability for his own negligence. In this connection, it should be clear from our opinion in McCann, supra, including its discussion of the leading cases and modifications of our opinion in Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Tex.1963), that broad general statements of the indemnity obligation are not sufficient to protect an indemni-tee against his own negligence, and that the only presently recognized exceptions are limited to (1) agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality as in Mitchell’s, Inc. v. Friedman, supra, and Houston & T. C. R. Co. v. Diamond Press Brick Co., Ill Tex. 18, 222 S.W. 204, 226 S.W. 140 (1920); (2) agreements which fall within the peculiar circumstances of the indemnitor having complete supervision over the property and employees of the indemnitee in connection with the performance of the in-demnitor’s contract as in Spence & Howe, supra; and (3) contracts in which there is an unequivocal provision that indemnitor will protect and indemnify the indemni-tee from any and all liability by reason of injuries to indemnitor’s employees as in Ohio Oil, supra.

The contract in the instant case clearly and unequivocally expresses an obligation on the part of Arsco to indemnify Amoco against the consequences of Amoco’s negligence except for the sole negligent acts of Amoco, its agent, servant or employees.

We disagree with Arsco that the deaths and injuries did not arise “directly or indirectly out of or in connection with the performance of the contract.”

The responsibility of Arsco under the contract was to furnish supervision, labor and equipment as requested by Amoco to perform miscellaneous refinery painting and sandblasting at the Texas City refinery. Adherence to safety rules as to unauthorized areas was required. At the time of their deaths, Sutton and Salinas were laboring for their employer, Arsco, under its contract with Amoco. Marzka was injured while attempting to rescue Sutton and Salinas.

Applying the general rules relating to the construction of contracts to the indemnity agreement, we determine the intention of the parties from the language used. Ohio Oil Company v. Smith, 365 S.W.2d 621 (Tex.1963).

Arsco by agreeing to indemnify for loss “arising directly or indirectly out of or in connection with the performance of the contract” clearly expanded its potential liability by including the term “indirectly.”

The term “indirectly” was defined in Caben Trust v. United States, 292 F.2d 33 (7 Cir. 1961) as follows:

. . The word ‘indirectly’ means: <* * * circuitous * * *; not leading to aim or result by the plainest course or method or obvious means; * * * roundabout; * * * not resulting directly from an act or cause but more or less remotely connected with or growing out of it.’ Webster’s New International Dictionary * * * ” (Emphasis ours)

In Missouri, K. & T. Ry. Co. of Texas v. Lyons, 53 S.W. 96 (Tex.Civ.App. — 1899), the court said:

“. . . The term ‘directly’ is synonymous with the word ‘immediately,’ and in this sense denotes closeness of connection, next in order, etc. . .

The court in Lyons held that the word “directly” has a meaning in strict harmony with that of the word “proximately.”

Arsco contracted to indemnify Amoco for losses “arising directly or indirectly out of or in connection with the performance of the contract.” We hold the deaths of Sutton and Salinas and the injuries to Marzka resulted from an act or cause if not directly at least indirectly connected with the performance of Arsco’s contract with Amoco.

Relying on the indemnity provision that in any event indemnity will not be applicable in the event of injury or death due to “the sole negligent acts of Company, its agents, servants, or employees,” Arsco argues that the court erred in granting indemnity to Amoco because the deaths and injuries resulted from the sole negligence of Amoco. In response to special issues, the jury determined that Arsco, its servants, agents or employees were guilty of negligence that was the proximate cause of the deaths of Sutton and Salinas. It also determined the deaths of Sutton and Salinas were not the result of the sole negligent acts of Amoco. Arsco contends there is no evidence of negligence on its part; therefore, the acts of Amoco were the sole contributing cause of the deaths and injuries.

The only evidence Arsco gave adequate warnings to its employees, Sutton and Salinas, was presented by an interested witness. J. R. Reyer acknowledge that Amoco used a permit system, in effect on the date of the accident, which meant no one was to enter a reactor without first obtaining a permit. No permits were issued to Sutton nor Salinas.

Applying appropriate rules, we overrule Arsco’s argument there is no evidence of negligence on its part. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

We have examined the entire record and overrule Arsco’s contention such findings are contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In its last four points of error, Arsco contends the court erred in awarding Amoco judgment for indemnity over against it for the damages awarded to Marzka because: (1) the jury answered issue 7b that Marzka’s injuries were the result of the sole negligent acts of Amoco; (2) contrary to Rule 301, the court failed to conform the judgment to the verdict and in particular to answer 7b; (3) the court failed to grant its motion for judgment after receipt of the verdict; and (4) the court in substance disregarded the jury’s answers to 7b without a motion to do so.

We disagree with Amoco’s argument Ar-sco has failed to properly preserve and bring forward for appellate review the contentions urged in these points of error.

Arsco has complied with that portion of Rule 324, T.R.C.P., which states:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in . overruling a motion for judgment on the verdict made by the party who becomes appellant; . . . ”

Amoco urges, if the points are properly before this court, that the jury’s answer to issue 7b is immaterial because the jury found the deaths of Sutton and Salinas were not the result of the sole negligent acts of Amoco, its agents, servants or employees and Amoco’s liability to Marzka is directly dependent upon and controlled by its liability, if any, to Sutton and Salinas. Amoco contends that negligence proximately causing the deaths of Sutton and Salinas having been established by the jury’s answers to special issues against Arsco and Amoco, imposes the obligation of indemnity for Marzka’s claim upon Arsco under the terms and provisions of the indemnity agreement; therefore, the answer to 7b is completely immaterial. Amoco concedes that the same result would not be true if Marzka’s claim was not directly dependent upon and controlled by the rescue doctrine.

This argument fails to recognize the distinction between Amoco’s tort liability to Marzka and Amoco’s contract right of indemnity from Arsco.

The court in Kelley v. Alexander, 392 S.W.2d 790 (Tex.Civ.App. — San Antonio 1965, writ ref. n. r. e.) said:

“Under the ‘rescue doctrine,’ one who attempts to rescue another placed in imminent peril by the negligence of the defendant is not to be found guilty of contributory negligence as a matter of law, nor does he assume the risk incident thereto unless he acts in a rash, imprudent or negligent manner. Sinclair Ref. Go. v. Winder, Tex.Civ.App., 340 S.W.2d 503, wr. ref.; Keystone-Fleming Transport, Inc. v. City of Tahoka, Tex.Civ.App., 315 S.W.2d 656, wr. ref. n. r. e.; Reddick v. Longacre, Tex.Civ.App., 228 S.W.2d 264, wr. ref., n. r. e. The basis of this rule is that the defendant negligently created a situation that provoked the rescue effort and the rescuer’s resulting injury was something that could reasonably have been foreseen by the negligent defendant and was a natural and probable result of such negligence. Longacre v. Reddick, Tex.Civ.App., 215 S.W.2d 404, mandamus overruled; Shultz v. Dallas Power & Light Co., Tex.Civ.App., 147 S.W.2d 914, wr. dism. judgm. correct; 40 Tex.Jur.2d, Negligence, § 117; Restatement of Torts, § 893.”

The parties in the instant case stipulated as follows:

“It is agreed by the parties that if the jury in answer to other issues has found that Amoco Oil Company was negligent insofar as the injuries to Aquiles Salinas or Robert Sutton are concerned that this will constitute an affirmative answer to Special Issues One, that if proximate cause of this negligence is required under the rescue doctrine that the answer to such an answered issue will be determined by the jury’s answers to other issues earlier in this charge involving proximate cause of the negligence of Amoco Oil Company.
It is further stipulated that the jury would answer Special Issues Two, Three and Five, Yes, and would answer Special Issue Four ‘It was not rash and reckless’.”

It is stated in 40 Tex.Jur.2d, Rev., Part 2, Negligence, § 82:

“The underlying basis of the rescue doctrine is that the defendant negligently created a situation that provoked the rescue effort, and the rescuer’s resulting injury was something that could reasonably have been foreseen by the negligent defendant and was a natural and probable result of such negligence.”

We hold the jury’s responses to issues other than 7b made Amoco under the rescue doctrine liable to Marzka for his injuries.

Issue 7b addresses itself to the determination of whether Arsco is liable to Amoco on its indemnity agreement. Herein, we have previously held the indemnity agreement clearly and unequivocally expressed an obligation on the part of Arsco to indemnify Amoco against the consequences of its own negligence except for the sole negligent acts of Amoco, its agents, servant or employees. (Emphasis ours) Whether Marzka’s injuries were the result of the sole negligent acts of Amoco is material to a determination of Amoco’s right to indemnity from Arsco for such injuries. The jury having made such determination against Amoco, the court erred in awarding judgment for indemnity over against Arsco for the damages awarded to Marzka.

We have considered all points of error presented by Arsco. We overrule such points except those directed to the indemnity award to Amoco for the damages awarded to Marzka.

That portion of the judgment awarding Amoco indemnity for the damages awarded to Marzka is reversed and rendered that Amoco take nothing. In all other respects, the judgment is affirmed.

The judgment is reversed and rendered in part and affirmed in part.

McCLOUD, C. J., not participating.


author: DUNAGAN, Chief Justice.

text:
    Ora Ester CLARK, Appellant, v. MEMORIAL HOSPITAL et al., Appellees.
    No. 1005.
    Court of Civil Appeals of Texas, Tyler.
    April 28, 1977.
    C. David Porter, George Chandler, Luf-kin, for appellant.
    Stephen R. Patterson, Nichols & Parker, Longview, for appellees.
   DUNAGAN, Chief Justice.

This is a medical malpractice suit brought by Ora Clark (hereafter called appellant) against the Memorial Hospital of Center, Texas, Dr. Vernon T. Polk, and Irene Sanders, L.V.N., seeking damages of $20,000 allegedly caused by the negligent administration of an injection in the upper left quadrant of appellant’s buttock. The trial court granted two summary judgments— one in favor of Dr. Polk and the other in favor of Memorial Hospital and Nurse Sanders. Appellant appeals the summary judgment in favor of the Memorial Hospital and Nurse Sanders only.

Appellant alleged that appellee Sanders failed to possess and to exercise the degree of knowledge, care and skill ordinarily possessed and exercised by other nurses engaged in said profession in the same or similar locale as appellee Sanders, and alleged that Sanders was guilty of negligent acts that were the proximate cause of appellant’s injury.

The alleged act of negligence by Sanders primarily was that she gave appellant an injection at a spot too close to the sciatic nerve. Appellant further alleged that Nurse Sanders was employed by Memorial Hospital when appellant was confined therein, and that the injection was administered in the course and scope of her employment.

The appellees on this appeal do not contend that Nurse Sanders at the time in question was not employed by Memorial Hospital or that the injection was not administered in the course and scope of her employment.

Appellant received the injection on August 11,1974, while she was confined in the hospital. This particular injection allegedly resulted in immediate pain, causing her to twist violently in the bed, resulting in a ruptured disc and related back difficulties. The cause of her intense immediate pain was allegedly that appellee Sanders administered the injection at an improper spot due to its proximity to a major nerve in the buttock and upper leg region.

All defendants moved for summary judgment on the ground that appellant cannot recover, as a matter of law, for the reason that there is no genuine issue of material fact as to either negligence or proximate cause, both essential elements of plaintiff-appellant’s cause of action. Summary judgment was granted in favor of each defendant, but on this appeal, appellant complains only of the summary judgment entered in favor of defendants-appellees Memorial Hospital and Irene Sanders.

Appellant contends that the appellees have failed to prove, as a matter of law, that there is no genuine issue of fact concerning negligence and proximate cause.

Appellees contend, however, that the trial court correctly granted their motion for summary judgment because the testimony establishes that there is no genuine issue of material fact as to the essential element of proximate cause.

Appellees concede that the pleadings and deposition testimony on file herein are sufficient to raise a question of fact on the issue of negligence. Therefore, the only question involved on this appeal is whether or not the summary judgment proof offered by appellees was sufficient to negate an essential element of appellant’s cause of action, proximate cause.

The purpose of a summary judgment is to eliminate patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). A defendant, to successfully seek summary judgment, must demonstrate that the plaintiff cannot prevail as his case is pleaded. Smith v. Muckleroy Enterprises, 537 S.W.2d 104, 105 (Tex.Civ.App. — Tyler 1976, n.w.h.); citing Cook v. Brundige, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976) and Parmlee v. Texas & N.O.R.R., 381 S.W.2d 90, 91 (Tex.Civ.App. — Tyler 1964, writ ref’d n.r.e.).

In Smith v. Muckleroy, supra, at page 106, this court stated:

“In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action, [citations omitted] The burden of proof rests upon the movant and all doubts are resolved against it; the opponent is not required to prove anything, [citations omitted] . . . ”

Following her discharge from Memorial Hospital appellant was examined by Dr. James R. Oates whose initial clinical differential diagnosis was right sciatic nerve damage or right lower back nerve damage. Based on the results of an electromyographic examination, Dr. Oates’ final clinical diagnosis was bilateral first-sacral nerve damage.

Mrs. Clark, the appellant, testified by deposition that Nurse Sanders gave her an injection in the buttock “And, oh, it hurt”; it felt like the pain went through her; that the injection complained of was in the right buttock; that the injury “hurt awful bad” to the extent she “hollered”; she turned over and turned her shoulders. In response to a question as to how she hurt her back she answered: “I was given a shot and I twisted and it hurt, hurt it.” She also testified as follows:

“Q. Are you saying that you have back problems now as a result of the shot that you talked about in this lawsuit.
“A. Yes, sir.”

Nurse Sanders by deposition testified that Mrs. Clark did complain of her back hurting.

Dr. Oates by his deposition gave the following testimony:

“Q. Now, I believe you mentioned earlier that this rupturing of the disk or it becoming out of place as you have testified about can be caused by several different things; is that true?
“A. Yes, sir.
“Q. And I believe that you mentioned that an injury or trauma to a particular area could cause it to do this; did you not?
“A. Yes and I would be remiss were I not to point out that the vast majority of the time trauma is the cause of disk rupture. I’d estimate at least 99 percent of disk ruptures accompanied by symptoms are on the basis of injury.
“Q. Doctor Oates, assuming that the history given to you by Mrs. Clark was true and correct, that the onset of her difficulties with her back began at a time after the injection she received in the hospital and that when she received that injection that she described to you that she did twist, perhaps turn, and did sustain pain, would that give you a definite clue as to when the onset of her back difficulties began?
“A. Yes, sir; I thought that could well be a clue and that’s why I speculated as to what might have happened.
“Q. Yes, sir. And based on reasonable medical probability, what would that clue be?
“A. The clue would be that she experienced sudden and, if we are to believe her, very severe pain when she received the injection and screamed and it is reasonable to assume that a patient who suddenly experiences that much pain might well attempt to withdraw from the source of the pain and jerk his body. It has, also, been my experience that one of the most common causes of disk rupture is violent abnormal sudden jerking of the body, especially when it involves bending the back or twisting the back. . . . ”

He also testified “. . . That statistically the most likely source of damage of the first sacral nerve root of her lower back would be a so-called ruptured disk. . . ”

However, in his deposition he pointed out that it had not been proven or demonstrated by him that she had a ruptured disc though he “very strongly” suspected that she did.

Appellees rely on the expert testimony of a physician to show lack of proximate cause. The physician stressed in his testimony that the effects of a nerve injury is always seen below and not above the site of the injury, that appellant’s injury was above the site of the injection, and that, therefore, the injection could not have caused her injury.

It is a well settled rule of law in this State that opinions of medical experts, even when unanimous and uncontradicted, are not conclusive and only raise a question of fact for the determination of the fact finder. Weaver v. Robinson, 536 S.W.2d 243, 246 (Tex.Civ.App. — El Paso 1976, writ granted on other grounds); Qualls v. Graham General Hospital, 535 S.W.2d 932, 937 (Tex.Civ.App. — Fort Worth 1976, n.w.h.); Delfín v. State of Texas, 533 S.W.2d 376, 378 (Tex.Civ.App. — El Paso 1976, writ ref’d n.r.e.); Sanchez v. Wade, 514 S.W.2d 812, 814-15 (Tex.Civ.App. — El Paso 1974, n.w. h.); Hidalgo v. Surety Savings & Loan Association, 487 S.W.2d 702 (Tex.1972); Bond v. Snow, 422 S.W.2d 842 (Tex.Civ.App.— Eastland 1967) affirmed 438 S.W.2d 549 (Tex.1969). The opinions of experts are not the conclusive character of evidence required for the rendition of a summary judgment. Bond v. Snow, supra; Villagomez v. American Motorists Insurance Company, 391 S.W.2d 537, 539 (Tex.Civ.App. — El Paso 1965) rev. on other grounds 398 S.W.2d 742 (Tex.1966); Mallow v. State of Texas, 356 S.W.2d 705 (Tex.Civ.App. — Fort Worth 1962, writ ref’d n.r.e.).

It is not the purpose of the summary judgment rule to provide either a trial by depositions or by affidavits, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Bond v. Snow, supra; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962).

We agree with appellant that the burden upon the appellees as the movants for summary judgment was not discharged. The summary judgment record does not negate the existence of genuine and material fact issues or show that appellees were entitled to a judgment as a matter of law.

The judgment is reversed and the cause is remanded to the trial court for trial on the merits.


author: ELLIS, Chief Justice.

text:
    R. E. HUNTLEY COTTON COMPANY et al., Appellants, v. Welton FIELDS et al., Appellees.
    No. 8711.
    Court of Civil Appeals of Texas, Amarillo.
    April 29, 1977.
    Rehearing Denied May 31, 1977.

      J. R. Blumrosen, Lubbock, Garrett, Settle & Callaway, Phillip W. Gilbert, Fort Worth, Travis D. Shelton, Lubbock, and Grady, Johnson, Smith & Blakeley, Thomas A. Blakeley, Jr., Dallas, Jones, Trout, Flygare & Moody, Chauncey Trout, Lubbock, for appellants.
    McClendon, Richards & Campbell, Tom M. Richards, Lubbock, for appellees.
   ELLIS, Chief Justice.

The trial court temporarily enjoined defendants Allenberg Cotton Company, Inc., R. S. Tapp, d/b/a R. S. Tapp & Co., Adolph Hanslik Cotton Company, Inc., and R. E. Huntley Cotton Company, d/b/a Panhandle Warehouse and Compress Company from removing 1640 bales of cotton grown by Welton Fields and several other plaintiff cotton farmers and stored in the defendant Panhandle’s warehouse. The trial court required an injunction bond in the amount of $1,500. All affected defendants have appealed and by their respective points of error have raised issues concerning (1) the adequacy of plaintiffs’ legal remedies, (2) the plaintiffs’ probable right of relief and (3) the adequacy of the injunction bond. Reversed and rendered.

The principal controversy in this suit arises out of the plaintiffs’ sale of 1765 warehouse receipts to Vaughn B. Nowlin, an F.O.B. cotton buyer. These sales occurred during the early months of 1976, and the plaintiffs were paid with checks drawn on the First State Bank of Childress, Texas (hereinafter referred to as the Bank). The cotton represented by the warehouse receipts was stored at the warehouse of the defendant R. E. Huntley Cotton Company d/b/a Panhandle Warehouse and Compress Company in Cottle County. The Bank dishonored Nowlin’s checks to the plaintiffs. At about the same time (February 25 to March 10,1976), Nowlin sold the warehouse receipts to the three defendant cotton companies. At the time these transfers were effected, none of the defendants had any actual knowledge that the plaintiffs had not been paid. In quick succession, Nowlin came within the jurisdiction of the federal bankruptcy court and the plaintiffs filed this lawsuit seeking return of the warehouse receipts in the defendants’ hands, damages from the Bank and an injunction restraining the defendants from removing 1640 bales of cotton stored in the warehouse. The trial court temporarily enjoined the defendants from disposing of, selling, encumbering, giving away or otherwise removing the cotton from Cottle County. A $1,500 injunction bond was required of the plaintiffs pursuant to Tex.R.Civ.P. 684. In their appeal, all four defendants have presented similar arguments as to why the injunction should be dissolved.

All defendants have contended that the injunction should be dissolved because the plaintiffs had an adequate remedy at law. It is true that the granting or denial of a temporary injunction normally rests within the discretion of the trial court. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Southwestern Chem. & G Corp. v. Southwestern P. L. Co., 369 S.W.2d 489 (Tex.Civ. App. — Houston 1963, no writ). Further more, injunctive relief will be granted if the available legal remedy is not an effective remedy. Baucum v. Texam Oil Corporation, 423 S.W.2d 434 (Tex.Civ.App. — El Paso 1967, writ ref’d n.r.e.).

It is our opinion that a suit for damages would be an effective legal remedy in this case. Cotton is a commodity that has a readily determinable value at any particular time. No bale of cotton is unique or different from other bales of cotton, and if any of the defendants have converted any of the plaintiffs’ cotton, the damages are readily ascertainable. No proof was produced showing the defendants would be unable to respond in damages. We will not presume them to be insolvent. See Deal v. Carlton, 237 S.W.2d 1000 (Tex.Civ.App.— Galveston 1951, no writ). Granting a temporary injunction when the defendants were able to respond in damages constituted an abuse of the trial court’s discretion. Hancock v. Bradshaw, 350 S.W.2d 955 (Tex.Civ.App. — Amarillo 1961, no writ); Lewis v. Clark, 129 S.W.2d 421 (Tex.Civ.App. — San Antonio 1939, writ dism’d jdgmt. cor.). Furthermore, in the instant ease, it was not established that some remedy other than injunction (such as sequestration) was inap propriate. See, Wight v. King, 227 S.W.2d 336 (Tex.Civ.App. — El Paso 1949, no writ).

The defendants have presented another ground for dissolution of the injunction. They have argued that the plaintiffs failed to demonstrate a probable right of recovery in the trial court. See, Transport Co. of Texas v. Robertson Transports, supra. A basic question is whether the warehouse receipts were negotiable. If the warehouse receipts were negotiable and duly negotiated to the defendants, the plaintiffs failed to prove that they had a probable right of recovery because the defendants would have received title to the cotton. Tex.Bus. & Comm.Code Ann. § 7.502. Moreover, if the warehouse receipts are negotiable instruments, there is no justification for a temporary injunction, and the plaintiffs have not pleaded a cause of action against the respective defendants. The plaintiffs have argued that the warehouse receipts were not negotiable documents and/or not duly negotiated to the defendant cotton companies.

Negotiability of warehouse receipts is controlled by Tex.Bus. & Comm.Code Ann. § 7.104, which states:

(a) A warehouse receipt, bill of lading or other document of title is negotiable
(1) if by its terms the goods are to be delivered to bearer or to the order of a named person; or .
(b) Any other document is non-negotiable. .

The terms of the warehouse receipts involved in this case stated:

Upon return of this receipt and payment of all charges and liabilities due the undersigned Warehouseman as may be accrued at time of presentation, said One Bale of Cotton will be delivered to the above named depositor or its order, or bearer.

The plaintiffs have argued that § 7.104 demands that a negotiable warehouse receipt be payable either to the order of a named person or to bearer. According to their interpretation, if both “order” language and “bearer" language appears on the face of the document, it is non-negotiable. We cannot agree.

We have found no decision rendered under the Uniform Commercial Code which speaks to the precise question raised by the plaintiffs. It is our opinion, however, that the warehouse receipts the plaintiffs delivered to Vaughn Nowlin were negotiable as bearer documents of title.

A literal reading of § 7.104(a)(1) seems to approve of warehouse receipts having terms “bearer or to the order of a named person.” Such a document would be negotiable. The warehouse receipts under consideration here contained exactly the same terms (although the terms are reversed). A literal reading of the statute, therefore, supports the defendants’ position that the warehouse receipts were negotiable. Furthermore, while words of negotiability are certainly required, the Code authorizes negotiable warehouse receipts to be in any form. Tex.Bus. & Comm.Code Ann. § 7.202. The plaintiffs take the position that the “order” language in the receipts requires endorsement as a prerequisite to negotiation and that without endorsement the receipts were not duly negotiated. Although § 7.501(a) states “A negotiable document of title running to the order of a named person is negotiated by his indorsement and delivery,” we note that § 7.501(b)(1) states “A negotiable document of title is also negotiated by delivery alone when by its original terms it runs to bearer.” The exact language of the receipts is “to the named depositor or its order, or bearer." (Emphasis added). Thus, the receipts, by their original terms, run to “bearer,” and there is no limitation on the bearer language. In this case none of the plaintiff-farmers endorsed any of their receipts but delivered them without endorsement to the purchaser. This is consistent with the testimony as to the practice in the cotton business whereby warehouse receipts are treated as bearer instruments without endorsement.

More important, however, is the fact that our conclusion is consistent with prior Texas law. Although but few Texas cases have addressed the subject of negotiability of warehouse receipts, such decisions are favorable to the concept of negotiability. See e. g., First Nat. Bank of Fort Worth v. Donald, 84 S.W.2d 325 (Tex.Civ.App. — Fort Worth 1935, writ dism’d). One ease, Mason v. Exporter & Traders Compress Co., 94 S.W.2d 758 (Tex.Civ.App. — Waco 1936, no writ), was decided on facts similar in significant respects to the ones before us. The warehouse receipts involved in Mason made one bale of cotton deliverable to “the above named depositor or bearer.” The case was decided under the Uniform Warehouse Receipts Act, and one provision of the Act provided that the warehouse receipts made deliverable “to the depositor” were non-negotiable, Tex. Laws 1919 eh. 126 § 4 at 216. Thus, the warehouse receipts involved in Mason contained words of art which, by themselves, would have negated negotiability. The court held that the additional terms “or bearer” rendered the warehouse receipts negotiable as bearer documents.

Unlike the receipts involved in Mason, the warehouse receipts in this case have no terms tending to negative negotiability. Both the "order” term and the “bearer” term are words of negotiability. Consistent with the Mason decision, we hold that the warehouse receipts delivered by the plaintiffs to Nowlin and by Nowlin to the cotton company defendants, were negotiable as bearer paper.

The plaintiffs, however, have argued that even though the warehouse receipts were negotiable, they were not “duly negotiated” to the defendants within the meaning of Tex.Bus. & Comm.Code Ann. § 7.501(d). That statute provides:

(d) A negotiable document of title is “duly negotiated” when it is negotiated in the manner stated in this section to a holder who purchases it in good faith without notice of any defense against or claim to it on the part of any person and for value, unless it is established that the negotiation is not in the regular course of business or financing or involves receiving the document in settlement or payment of a money obligation. Id.

At the temporary injunction hearing, no evidence was produced tending to prove that the cotton companies did not pay value for the warehouse receipts, or that the transaction was not in the regular course of business, or that they had actual notice of any claims to the warehouse receipts. Furthermore, there is no evidence that the defendants did not act in good faith. Although the plaintiffs presented some evidence that the defendants had access to information sufficient to put them on notice of claims to the cotton, that knowledge is immaterial unless defendants had actual knowledge of facts and circumstances that would amount to bad faith. Riley v. First State Bank, Spearman, 469 S.W.2d 812, 816 (Tex.Civ.App. — Amarillo 1971, writ ref’d n: r. e.). See also, Richardson Company v. First Nat. Bank in Dallas, 504 S.W.2d 812 (Tex.Civ.App. — Tyler 1974, writ ref’d n. r. e.). There is no evidence of such actual knowledge, and we have concluded that the plaintiffs failed to prove their probable right to relief.

The points of error of Allenberg, Huntley, Tapp and Hanslik, respectively, to the extent that they contend that the court erred in granting the injunctive relief on the grounds that the plaintiffs failed to establish that they had no adequate remedy at law, or to establish their probable right to recover against the defendants on the merits, are sustained. It is therefore our opinion that the injunction should be dissolved.

In other points of error, the defendants have argued that the injunction should be dissolved because the bond required by the trial court was insufficient in amount. In view of our holding that the injunction should be dissolved, no bond will be required. Because this holding is dispositive of the appeal, we do not reach the remaining points.

For the reasons above stated, the order of the trial court granting the temporary injunction is reversed and judgment rendered that the injunction be dissolved.