author: McKAY, Justice.

text:
    Vincent P. MARTINEZ, Appellant, v. Eduardo L. MARTINEZ, Appellee.
    No. 1012.
    Court of Civil Appeals of Texas, Tyler.
    June 16, 1977.
    Rehearing Denied July 14, 1977.

      John Ken Sharber, Maebius & Duncan, Inc., San Antonio, for appellant.
    Peter N. Plumb, Earl F. Levis, San Antonio, Michael M. deShetler, Allison & Garcia, Corpus Christi, for appellee.
   McKAY, Justice.

This is an appeal from an instructed verdict granted in a suit brought by appellant seeking money damages for the loss of sight in his left eye alleged to have been sustained as a result of the negligence of ap-pellee by discharging a “bottle rocket” which struck appellant. This act was alleged to be negligence per se as a violation of Section 26-15 of the City Code of San Antonio prohibiting the use of fireworks without a permit. Appellee answered alleging that several acts of appellant constituted contributory negligence and that at the time of the accident appellant was a part of a civil conspiracy to violate the above mentioned ordinance; therefore, appellant would be barred from recovery. At the close of the plaintiffs evidence the trial court instructed a verdict in favor of appel-lee and rendered judgment that appellant take nothing.

Appellant brings four points of error which complain that the trial court erred in granting appellee’s motion for instructed verdict because the evidence (1) affirmatively raised issues of fact which showed a prima facie case of negligence on the part of the appellee; (2) affirmatively raised issues of fact as to whether the appellee’s act of igniting the bottle rocket was the proximate cause of the appellant’s injury; (3) did not establish as a matter of law that appellant’s negligence barred him from recovery; and (4) affirmatively raised issues of fact as to whether or not appellee breached a duty owed to appellant. Appel-lee by his three counterpoints contends that (1) appellant failed to make a prima facie case of appellee’s negligence or that appellant’s contributory negligence was a proximate cause of appellant’s injury; (2) as a matter of law the appellee breached no duty owed by him to the appellant; and (3) as a matter of law the appellant is barred from recovery for the alleged negligence of the appellee due to the fact that he was engaged in a “civil conspiracy” as that term is understood in law and “was otherwise himself engaged in an illegal activity”.

In considering whether an instructed verdict was proper an appellate court must view the evidence of the complaining party in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). In order to sustain the action of a trial court in granting a directed verdict, it must be determined that there is no evidence of probative value upon which the jury could have found on the issue in question or that the evidence conclusively establishes the opposite of the jury finding. Douglass v. Panama, Inc., supra; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361, 363. With these principles in mind we will examine the evidence.

On the evening of December 31, 1974, appellee held a New Year’s Eve party at his home located at 1322 Texas Avenue, San Antonio, Texas. Invited by “word of mouth” were a number of friends and relatives, including his brother, the appellant. Several of the participants provided food and beverages, some alcoholic, the appellee supplying the fireworks. At or about 11:30 p. m. some of the persons attending the party began lighting fireworks to celebrate the arrival of the new year. Appellant’s participation in this activity was limited to popping firecrackers and lighting sparklers. At or about 12:00 midnight the appellee began shooting what are commonly known as “bottle rockets” in his back yard. A “bottle rocket” is an explosive attached to a narrow stick which is propelled through the air upon the explosive being ignited. It acquired its name because it is usually launched by placing the stick in a bottle. By 12:00 midnight appellant had ceased his participation and appellee was the only one engaging in the fireworks activity. At or about 12:15 a. m. on January 1,1975, appellant, while standing and talking with his wife in the back yard approximately 20 to 30 feet away from where appellee was shooting bottle rockets, was struck in the left eye by a bottle rocket. The bottle rocket which struck appellant had been placed into a beer bottle and ignited by the appellee. Appellee testified that he gave no warning to appellant that he was about to light the rocket in question. Appellant suffered the loss of sight in his left eye as a result of the accident.

Prior to the accident appellee had fired “over a dozen” of the bottle rockets, either out of a bottle or his hand, or by lighting and dropping the rockets on the ground. Appellee testified that approximately 50 percent of these had malfunctioned, either failing to ignite or failing to reach the maximum altitude. One witness, Homer Rodriguez, testified, “They either didn’t go off or they took off and instead of going straight up they just spirled [sic] and went off cockeyed.” As to the rocket that struck appellant, appellee testified, “ . . . it went up, and then somewhere around six feet it temporarily, the fire stopped, the propulsion device, and then it went up and started to fall, and as it fell it reignited and took a parallel course to the ground in the direction of my brother,” upon which course it struck appellant. The evidence showed that several persons including appellant had observed appellee’s activity and that no one had objected to such as being dangerous. Appellant acknowledged that appellee’s acts were unintentional and that his injury was due to a “freak accident”.

In considering this evidence we agree with appellant’s contention that the evidence raised issues of fact as to the negligence of the appellee and whether it was a proximate cause of appellant’s injury. Where the purpose of a valid municipal ordinance is to afford protection against the hazard involved in a particular case, the violation of such, absent some evidence of a legally substantiated excuse, constitutes negligence per se. Parrott v. Garcia, 436 S.W.2d 897, 899, 900 (Tex.1969); Alpine Tel. Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830, 833 (Tex.1944); Harris v. LaQuinta-Redbird Joint Venture, 522 S.W.2d 232, 234 (Tex.Civ.App., Texarkana 1975, writ ref’d n.r.e.). The ordinance in question, outlawing the use of fireworks within the City of San Antonio without a permit, clearly was meant to afford protection from personal injury for persons situated as appellant. The evidence raises fact issues that appellee violated such ordinance and that such violation was a proximate cause of appellant’s injury. Appellee makes no contention that such violation was excusable. We further agree with appellant that the evidence did not establish as a matter of law that his own negligence barred him from recovery. Although it was shown that at an earlier point in the evening appellant had participated in the fireworks activity, it was not shown (1) that he was participating in such at the time of the accident, or (2) that his own illegal acts would have been a concurring cause of such injuries.

Appellee, however, first contends that the “malfunctioning” of the bottle rocket in question was a new and intervening cause, not foreseeable to appellee, of appellant’s injury which destroyed the causal connection between the negligent act of the appellee and appellant’s injury, thereby becoming itself the immediate cause of the injury. He contends that since the injury was unintentional, it was, therefore, not foreseeable by the appellee. We disagree. The foreseeability element of proximate cause is established by proof that the actor as a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act, and the rule does not require that he anticipate just how injuries will grow out of that dangerous situation. Clark v. Waggoner, 452 S.W.2d 437, 439, 440 (Tex.1970); Westbrook v. Reed, 531 S.W.2d 890, 893 (Tex.Civ.App., Amarillo 1975, writ ref’d n.r.e.). An intervening cause does not destroy the causal connection if it was reasonably foreseeable that some injury would result. Clark v. Waggoner, supra; Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330, 332 (Tex.Civ.App., El Paso 1972, no writ). The intervention of an unforeseen and unexpected cause will not relieve a wrongdoer from consequences of his negligence if his negligence concurs and cooperates with the independent cause in the resulting injury. Bell v. Campbell, 434 S.W.2d 117, 122 (Tex.1968); Taylor v. Southwestern Bell Tel. Co., supra.

Appellee testified that over 50 percent of the rockets lighted had malfunctioned. The witness Homer Rodriguez testified that several had spiraled or gone in a direction other than straight up. The proper test in this case is not whether appellee should have anticipated that the bottle rocket would travel laterally and strike appellant in the left eye, but instead whether appellee should have anticipated that danger to others was created by his act. The mere fact that the injury was unintentional did not make it unforeseeable. Under the evidence we cannot agree that the “malfunction” of the rocket was a new and intervening cause precluding appellee’s acts from being the proximate cause of appel-lee’s injury.

Appellee also contends in his argument that appellant was a licensee on his premises; therefore, the only duty he owed appellant was not to injure him by willful, wanton or gross negligence. It is well settled in this state that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence. Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561, 562 (Tex.1976); State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974); Hastings v. DeLeon, 532 S.W.2d 147, 148 (Tex.Civ.App., San Antonio 1975, writ ref’d n.r.e.). However, under an exception to this rule a licensee has the right to require of the occupier of the premises that he so conduct himself as not to injure the licensee through the occupier’s active negligence. Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 602 (1954); McKethan v. McKethan, 477 S.W.2d 357, 360 (Tex.Civ.App., Corpus Christi 1972, writ ref’d n.r.e.); Arambula v. J. M. Dellinger, Inc., 415 S.W.2d 456, 458 (Tex.Civ.App., San Antonio 1967, writ ref’d n.r.e.). We believe the shooting of fireworks comes within the meaning of “active negligence.” Appellee cannot be excused from his active negligence merely because he was on his own property at the time of the accident. Therefore, we believe that appellee did owe appellant a duty not to injure him under the facts in this case.

Appellee finally contends that appellant is barred from recovery for the alleged negligence of appellee “due to the fact that he was engaged in a civil conspiracy as that term is understood in law and was otherwise himself engaged in an illegal activity.” We disagree. A civil conspiracy has been defined by the Supreme Court as “a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex.1968); Great Nat’l Life Ins. Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964). One of the essential elements required to establish a civil conspiracy is a meeting of the minds on the object or course of action. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., supra, 435 S.W.2d at p. 857. There is little showing in the record that appellee and appellant either agreed to commit the illegal act or acted in concert to violate the ordinance. We do not feel that under the evidence in the present case the required “meeting of the minds” between appellant and appellee to violate the ordinance in question was proven as a matter of law thereby barring appellant from recovery.

We sustain appellant’s points, and we hold that it was error for the trial court to grant appellee’s motion for instructed verdict.

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

      . “Sec. 26-15. Fireworks.
      “It shall be unlawful for any person to in any manner use, shoot, discharge, explode, ignite, or display any fireworks within the city, except as provided for in this section.
      “Any citizen of the city may give a public fireworks display, provided he secures a permit therefor from the city council as herein provided. Application therefor shall be addressed to the city council, shall state the name and residence of the applicant, the time and place of the proposed exhibition, a description of the kind, character and quantity of the fireworks intended to be displayed, and shall be accompanied by a cashier’s or certified check for twenty-five dollars.
      “The city council shall pass upon such application and may grant or reject same within its discretion. If same is rejected, the check for twenty-five dollars shall be returned to the applicant; if it is granted, such check shall be deposited to the general fund and be retained as a fee for the permit. A certified copy of the city council’s action of approval shall constitute the applicant’s permit.
      “No such permit shall be granted to any applicant more than twice during any calendar year, and any fireworks display thereunder shall be concluded not later than ten o’clock p. m. on the date specified under the penalty as provided in section 1-5 of this Code.
      “No such application shall be granted by the city council unless the written recommendation of the building inspector, the fire chief and the fire marshal have been endorsed thereon.
      “As used in this section the term ‘fireworks’ shall be given its usual and ordinary meaning, and shall include but not be limited to the following: firecrackers, Roman candles, sparklers, torpedoes, bombs, skyrockets, buzz bombs, atomic wings, aerial flash salutes, and trail blazers. (Code 1950, sec. 41-10; Ord. No. 18384, sec. 1, 10-2-52)”


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    N. K. PARRISH, INC., Appellant, v. Jose A. NAVAR et al., Appellees.
    No. 8743.
    Court of Civil Appeals of Texas, Amarillo.
    June 20, 1977.

      Garner, Vickers, Purdom & Nelson, Robert E. Garner, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellees.
   ELLIS, Chief Justice.

The plaintiff, N. K. Parrish, Inc., has appealed from the judgment of the trial court sustaining the plea of privilege filed by the defendants, Jose A. Navar, et al. Parrish sought to sustain venue under the provisions of subdivision 5(a) of the venue statute on the basis of purported contracts in writing consisting of certain Confirmations of Sale of grain signed by Parrish, but not signed by the defendants-purchasers. Additionally, Parrish contends that the defendants are not entitled to rely upon subdivision 5(b) as a basis for determining venue under the facts of this case. We have concluded that Parrish failed to establish the existence of a contract in writing within the purview of subdivision 5(a) or other exception which would operate to deny the defendants the right to be tried in the county of their residence. Affirmed.

Parrish sued Navar and other unnamed persons individually and as alleged partners dba, Farmers Dairies. The suit alleged breach of three contractual agreements. On November 13, 14 and 18, 1974, Parrish’s agent, Johnny Cox, had telephoned Jose Navar of Farmers Dairies in El Paso, Texas. During each of the three telephone conversations, detailed arrangements were made for Parrish to sell 1,000,000 pounds of # 2 yellow grain sorghum to Farmers Dairies. After each conversation, Cox had a written “Confirmation of Sale” prepared and mailed to the defendant. These instruments consisted of printed forms with the agreed terms typed into appropriate spaces on the forms. On each of the three instruments was also typed: “This Contract is Performable at Lubbock, Texas.” Thus, the instruments purported to confirm the sale of 3,000,000 pounds of sorghum to the defendant.

The defendant, however, accepted only 350,780 pounds of the grain. After that amount had been delivered, Jose Navar wrote Parrish and cancelled the contracts. That letter was written on December 4, 1974 and on February 19,1976, Parrish filed this suit against the defendants for breach of contract.

The defendants interposed a plea of privilege which was controverted pursuant to the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 5(a) (Supp.1976). The trial court heard testimony and sustained the defendants’ plea of privilege without entering findings of fact and conclusions of law.

In Parrish’s first point of error, he has urged that subdivision 5(a) is applicable under the facts of this case.

Subdivision 5(a) of Article 1995 provides:

5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

In order for this subdivision to control venue, the plaintiff must prove the following venue facts: (1) the defendant is a party reached by the statute; (2) the plaintiff’s claim is based upon a contract in writing; (3) the contract was entered into by the defendant or one authorized to bind him; and (4) the contract provides for venue by its terms. Vaquero v. Adcock, 453 S.W.2d 908 (Tex.Civ.App.—San Antonio 1970, no writ); 1 R. McDonald, Texas Civil Practice in District and County Courts, § 4.11.1 at 444 (1965 ed.). Parrish has argued that the “Confirmation(s) of Sale” are “contracts in writing” which established venue in Lubbock County by calling for performance there. Whether these confirmatory memo-randa are “contracts in writing” within the meaning of subdivision 5(a) is the basic question for determination in this appeal. It is undisputed that the confirmations were never signed or executed by the defendants.

We recognize that in the business world, written memoranda confirming prior oral or telephonic agreements are frequently transmitted in business transactions. Many times, these memoranda specify a county for performance and, if litigation develops, the court is called upon to decide whether the memoranda are part of the parties’ contract in order to determine whether the asserted venue provision (subd. 5) is applicable.

If the parties’ prior oral agreement completely settled every material term of the contract, one party may not unilaterally enlarge it later by mailing a confirmatory memorandum containing a venue clause and have the memorandum considered a “contract in writing” within subdivision 5(a). In such cases, the courts have recognized that the real contract between the parties was an oral one and this subdivision 5(a) (or its predecessor, subdivision 5), does not determine venue. Jenkins v. Silverthorne, 510 S.W.2d 171 (Tex.Civ.App.—Amarillo 1974, no writ); West Flour Mill, Inc. v. Vance, 430 S.W.2d 232 (Tex.Civ.App.—Tyler 1968, writ dism’d); Trans-South Hydrocarbons Co. v. Trinity Industries, 419 S.W.2d 662 (Tex.Civ.App.—Dallas 1967, no writ); Back v. Radio City Distributing Co., 286 S.W.2d 672 (Tex.Civ.App.—Dallas 1956, writ dism’d).

On the other hand, if the parties to an oral agreement expressly agreed that it would be finalized with a confirmatory memorandum, the court will give effect to the memorandum as a part of the contract between the parties and allow the designated venue clause to become effective. Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963 (1928); Daugherty Grain Co. v. S. T. Oates Grain Co., 191 S.W.2d 804 (Tex.Civ.App.—Fort Worth 1945, no writ); Gillmore v. Transit Grain & Commission Co., 213 S.W.2d 880 (Tex.Civ.App.—Fort Worth 1944, no writ); Gottlieb v. Dismukes, 230 S.W. 792 (Tex.Civ.App.—Austin 1921, no writ).

The courts also have recognized confirmatory memoranda as “contracts in writing” where the plaintiff established that the defendant expected a confirmation because of prior dealings or customs and usage of trade. Green-Gro Seed Company v. Perry, 399 S.W.2d 898 (Tex.Civ.App.—Amarillo 1966, no writ); Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App.—Dallas 1962, no writ); Stephenson v. Oates, 213 S.W.2d 855 (Tex.Civ.App.—Amarillo 1947, no writ); Vinson v. Horton, 207 S.W.2d 432 (Tex.Civ.App.—Texarkana 1947, no writ).

Similarly, if the confirmatory memoranda contained new or additional terms in which the other party later acquiesced, the memorandum was given effect. Lufkin Foundry & Machine Company v. Mixon, 445 S.W.2d 232 (Tex.Civ.App.—Beaumont 1969, no writ); Harrison v. Facade, Inc., supra; Stevens-Smith Grain Co. v. Heid Bros, 18 S.W.2d 210 (Tex.Civ.App.—El Paso 1929, writ dism’d).

Also, confirmatory memoranda sent by brokers to their clients which provide that failure to object to the contract immediately by wire or phone shall be regarded as final acceptance have been held to be contracts in writing under subdivision 5. Talley v. Paul Allison Grain Co., 369 S.W.2d 439 (Tex.Civ.App.—Fort Worth 1963, writ dism’d); Pittman & Harrison Co. v. B. F. Robey & Co., 234 S.W. 1114 (Tex.Civ.App.—Dallas 1921, no writ).

In the instant case, Parrish’s agent, Cox, orally agreed to sell the defendant grain. Cox testified that he and Navar discussed each of the contract terms very thoroughly; they agreed upon every material term in the contract. The terms orally agreed upon included quantity of grain, price, grade, shipping terms, weighing terms, payment terms and extra loading charges. There is no evidence that Cox told Navar that he would be sent any confirmatory memoran-da; nothing indicates that the matter was ever discussed. It is our opinion that the contract between the parties was made orally over the telephone and that all contract terms were settled at that time. For this reason, Parrish’s unilateral “Confirmation of Sale” cannot be considered a subdivision 5(a) “contract in writing.” The contract between the parties was made orally and an oral contract will not operate to establish venue under subdivision 5(a). Teague Brick & Tile Company v. Snowden, 440 S.W.2d 419 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ).

Parrish, however, has argued that the parties had done business in the past and that the defendant knew the contract would be confirmed in writing when he made the oral agreement. It is recognized that testimony produced at the hearing showed that the parties had had prior dealings in which confirmatory memoranda were sent to the defendant. There is no evidence that the defendant actually understood that the contract would be finalized with confirmatory memoranda; the defendant did not even testify at the hearing. The parties had done business with each other for only about six months. The record does not reflect the number of previous transactions by the parties and it cannot be said that the confirmatory memoranda were a part of the contract as a matter of law. Nor can it be said that the defendant acquiesced in the terms of the confirmatory memoranda. The defendant neither signed nor returned the copies sent him, although instructions on the memoranda requested that he do both. Although the defendant paid for the grain in Lubbock, this payment cannot be considered acquiescence in the “performable in Lubbock” venue clause in the memoranda because the original oral contract called for payment in Lubbock. In fact, all of the defendant’s actions were consistent with the original oral contract.

From a review of all the evidence, we do not find that Navar’s acts, conduct or alleged acquiescence sufficiently established the confirmations of sales as the terms of their contract or agreement. Under all of these circumstances, we hold that the contracts sued upon were not “contracts in writing” within the meaning of subdivision 5(a). Point one is overruled.

In Parrish’s second point it is contended that the facts of this case are not within the purview of subdivision 5(b) of Article 1995, which provides:

(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision.

Appellant further contends that this case does not involve a “consumer transaction” and that the defendant is not a “consumer” within the meaning of subdivision 5(b). Further, appellant argues that it is not a creditor within the meaning of subdivision 5(b).

In the forepart of this opinion we have held that in the absence of a contract in writing venue cannot be sustained in Lubbock County under the provisions of subdivision 5(a). It is here noted that if subdivision 5(b) has no application to the facts of this case, then it is obvious that the defendants are entitled to have the suit transferred to the county of their residence.

Subdivision 5(b) contains two alternative provisions, i. e., the suit may be brought against the defendant either in the county where the defendant, in fact, signed the contract or in the county where the defendant resides at the time of the commencement of the action. As previously pointed out, there was no written contract in this case (only an oral contract); the defendant did not sign any contract in Lubbock County or anywhere else. Therefore, the first portion of subdivision 5(b) (dealing with the county in which the defendant signed the contract) has no application to this case. The alternative provision of .subdivision 5(b) is that the action must be brought “. in the county in which the defendant resides at the time of the commencement of the action.” In any event, this is the only viable alternative and it is consistent with the rule establishing venue in the county of the defendants’ residence. Thus, it becomes immaterial as to whether there was in this case a consumer transaction.

In the light of the foregoing, we hold that the complaints set out in connection with appellant’s second point are immaterial to a determination of venue in this case. We hold that Parrish has established no exception to the general rule which allows a defendant to be tried in the county of his residence.

For the reasons above stated, the judgment of the trial court sustaining the defendants’ plea of privilege is affirmed.


text:
    BEEF CATTLE CO., Appellant, v. N. K. PARRISH, INC., Appellee.
    No. 8760.
    Court of Civil Appeals of Texas, Amarillo.
    June 20, 1977.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, Herman Jesko, Amarillo, for appellant.
    Garner, Vickers & Purdom, Robert E. Garner, Lubbock, for appellee.
   ELLIS, Chief Justice.

Venue in this action on a sworn account seeking recovery of an alleged unpaid balance owing to the plaintiff, N. K. Parrish, Inc., for grain purchased by the defendant, Beef Cattle Co., was sustained in Lubbock County, the county in which the suit was instituted. The defendant cattle company filed its plea of privilege which was controverted by the plaintiff and overruled by the trial court. The cattle company has appealed and contends that venue lies in Wheeler County under the provisions of subdivision 5(b) of the venue statute. The facts have been stipulated and the basic question here is whether under the stipulated facts, subdivision 5(b) is applicable. The appellant specifically contends that the defendant corporation was not a consumer of agricultural goods within the contemplation of the provisions of 5(b), an exception to 5(a), and that 5(b) was inapplicable to this transaction. We reverse and render judgment that the cause be transferred to Wheeler County-

The cattle company, a Texas corporation, has its residence and domicile in Wheeler County, Texas, and operates a custom cattle feeding business. In 1974, it agreed to purchase 1,008,000 pounds of milo from Parrish, the plaintiff. This agreement was confirmed in writing and signed by the defendant in Wheeler County. By the terms of this written confirmation, the contract was performable in Lubbock County and the parties have stipulated that subdivision 5(a) would operate to hold venue in Lubbock County if 5(b) does not apply. The parties also stipulated:

7. That the business of BEEF CATTLE CO. is agricultural, and that the contract and agreement for the purchase of milo was intended primarily for agricultural use, such milo being used as foodstuff in Defendant’s custom cattle feeding operation and resold to owners of cattle in a ration.

Although the milo was delivered and accepted, the plaintiff has alleged that the defendant paid for only part of it. This suit was brought to recover the unpaid balance. The cattle company has appealed from the trial court’s order overruling its plea of privilege. In its two points of error, the cattle company has argued that venue lies only in Wheeler County under the terms of Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 5(b) (Supp.1976).

Subdivision 5 of article 1995 was expanded by the legislature in 1978. The statute now provides:

5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.
(b) In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision. (Emphasis added.)

Part (a) was left substantially unchanged; part (b) is entirely new.

Applying part (b) to the facts before us, it is plain that this contract involved “goods . intended primarily for . agricultural use . . . ” as those terms are used in the statute. In stipulation 7 (quoted above), the parties agreed that “the purchase of milo was intended primarily for agricultural use . . ..” In doing so, they have stipulated to one of the venue facts within the purview of subdivision 5(b). The only question remaining is whether this case involves a “consumer transaction” within the meaning of subdivision 5(b).

The term “consumer transaction” is not defined in the venue statute. See, Amaya v. Texas Securities Corporation, 527 S.W.2d 218, 221 (Tex.Civ.App.—San Antonio 1975, writ ref'd n.r.e.). That being so, we must determine the meaning the legislature intended from the language it used. We are not free to formulate some forced or strained definitions for statutory terms. Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.1968); Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920). Instead, we are bound to apply the “ordinary signification” to statutory language. Tex.Rev. Civ.Stat.Ann. art. 10. We note that there is no provision in subdivision 5(b) limiting the term “consumer transaction” as used therein to a single individual, and there is no expression of legislative intent whatsoever to so limit the term.

The term “consumer” is a broad generic term and has been held in Texas cases to signify one who uses economic goods and so diminishes their utilities—opposed to producer. Southern Iron & Metal Company v. Yaffe, 351 S.W.2d 664 (Tex.Civ.App.—Waco 1961, no writ); Ex Parte Mehlman, 127 Tex.Cr.R. 257, 75 S.W.2d 689 (1934). This definition is consistent with that used in other jurisdictions. See, e. g., J. W. Meadors & Co. v. State, 89 Ga.App. 583, 80 S.E.2d 86 (1954); Union Portland Cement Co. v. State Tax Commission, 110 Utah 135, 170 P.2d 164 (1946); St. Paul & Tacoma Lumber Co. v. State, 40 Wash.2d 347, 243 P.2d 474 (1952). In our opinion this definition constitutes the “ordinary signification” of the term consumer. Tex.Rev.Civ.Stat. Ann. art. 10.

Applying this term to the case before us, we have noted that the cattle company purchased the milo as “foodstuff” for cattle. Foodstuff, by its nature, must be used, consumed or devoured to realize its basic value. It has been held that the purchaser of cattle feed is a consumer of that feed. Colbert Mill & Feed Co. v. Oklahoma Tax Commission, 188 Okl. 366, 109 P.2d 504 (1941). We have concluded that the cattle company was a “consumer” of the milo involved here and purchasing the grain was a “consumer transaction” within the meaning of the plain language of subdivision 5(b).

Our conclusions are consistent with those announced in Castleberry v. Acco Feeds, etc., 525 S.W.2d 282 (Tex.Civ.App.—Eastland 1975, no writ). In that case, the court held that purchase of cattle feed by a large cattle producer was a “consumer transaction” within the meaning of subdivision 5(b). In arguing for a result different from the one announced in Castleberry, Parrish has contended that subdivision 5(b) could not apply in this case because the cattle company is a corporation. According to Parrish, the legislature did not intend for part (b) to operate in favor of corporations. The trial court agreed with Parrish and stated that “a corporation cannot be a ‘consumer’ ” in its conclusion of law. In our opinion, Castleberry cannot be distinguished from the case before us on that ground.

As noted above, it is appropriate to determine the legislature’s intention from the language of the statute. There is nothing in the statute indicating any legislative intention to exclude corporations from its operation. Absent some clear indication of a contrary intent, we cannot hold that a corporation cannot be a “consumer” under the ordinary signification of that term. The term in no manner excludes corporations from its meaning, and it has been held that a corporation can be a “consumer.” Moses Lake Homes v. State, 48 Wash.2d 499, 294 P.2d 1113 (1956). Furthermore, the terms of the venue statute have always been held applicable to corporations and natural persons alike. 59 Tex.Jur.2d Venue § 86 at 495. We see no reason to deviate from this settled rule in giving meaning to the term “consumer.”

We sustain the cattle company’s points of error. Accordingly, we reverse the judgment of the trial court and render judgment that this cause be transferred to Wheeler County, Texas, in accordance with Tex.R.Civ.P. 89.


author: ROBINSON, Justice.

text:
    Harry W. ELLIOTT, Jr., et al., Appellants, v. S. E. DAVIS et al., Appellees.
    No. 8741.
    Court of Civil Appeals of Texas, Amarillo.
    June 20, 1977.
    Rehearing Denied July 18, 1977.

      Whitten, Sprain, Price, Wagner & Edwards, Abilene, Vinson, Elkins, Searls, Con-nally & Smith, Houston, Jennings, Montgomery, Dies & Turner, Frank L. Jennings, Graham, for appellants.
    Heatly & Heatly, Paducah, Simon & Simon, Henry W. Simon, Sr. and John W. Hughes, Fort Worth, for appellees.
   ROBINSON, Justice.

This is a suit by lessors to cancel mineral leases on the grounds that lessees had exercised pooling provisions in bad faith. The trial court granted the plaintiff’s motion for summary judgment declaring that the pooled unit insofar as it pertained to the plaintiffs’ leases was cancelled and that the plaintiffs’ leases had expired by their own terms. Defendants appeal. Reversed and remanded.

Between April and August of 1969 the plaintiffs executed to defendant Nueve Operating Company oil and gas leases on their land in Cottle County. In addition to the plaintiffs’ land, Nueve also leased land owned by the Gilbreaths, the Parnells and K. E. Moss. This Nueve Lease Block covered 1532.66 acres. Defendant Nueve later assigned an overriding royalty to defendant Andrew P. Werner. The leases were assigned to the other defendants subject to the overriding royalty. All except one of the leases were on the same standard “Producers 88” form, which contained a provision that the leases should remain in force for a fixed five year primary term “and so long thereafter as oil, gas or other mineral is produced from said land or with which said land is pooled,” and a provision giving the lessee the right to pool or unitize the leases.

Paragraph 6 of the leases, which contains the continuous operation clause, reads in part as follows:

. If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land or land pooled therewith but lessee is then engaged in operations for drilling, mining, or reworking of any well or mine thereon, this lease shall remain in force so long as such operations or said additional operations are commenced and prosecuted (whether on the same or successive wells) with no cessation of more than sixty (60) consecutive days, and, if they result in production, so long thereafter as oil, gas, or other mineral is produced from said land or land pooled therewith. In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land and draining the leased premises, lessee agrees to drill such offset wells as a reasonably prudent operator would drill under the same or similar circumstances. The judgment of the lessee, when not fraudulently exercised, in carrying out the purposes of this lease shall be conclusive.

The pooling or unitization clause reads as follows:

Lessee is hereby granted the right to pool or unitize this lease, the land covered by it or any part thereof with any other land, lease, leases, mineral estates or parts thereof for the production of oil, gas or any other minerals. Units pooled for oil hereunder shall not exceed forty (40) acres plus a tolerance of ten per cent (10%) thereof, provided that if any Federal or State law, Executive order, rule or regulation shall prescribe a spacing pattern for the development of the field or allocate a producing allowable on acreage per well, then any such units may embrace as much additional acreage as may be so prescribed or as may be used in such allocation or allowable. Units previously formed may be reformed to exclude acreage or formations in such original units and/or to include additional acreage or formations. The forming or reforming of any unit shall be accomplished by lessee by his executing and filing for record a declaration of unitization or reformation, which declaration shall describe the unit. Such units may be designated either before or after the completion of wells. Drilling operations and production on any part of the pooled acreage shall be treated as if such drilling operations were upon or such production was from the land described in this lease whether the well or wells be located on the land covered by this lease or not. The entire acreage pooled into a unit shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if it were included in this lease. In lieu of the royalties herein provided, lessor shall receive on production from a unit so pooled only such portion of the royalty stipulated herein as the amount of his acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.

Delay rentals were paid and a well was drilled on the Gilbreath tract in 1969. There was no further development of the leases until just before the end of the primary terms because Imperial-Ameriean, which was the owner of 80% of the leasehold interest at that time, was in bankruptcy in Colorado and refused to participate or farm out its lease. In January of 1974, the president of Nueve Operating Company, Harry W. Elliott, Jr., began negotiations with Tom Darling of the Burke Royalty Co., which was interested in drilling a well in that area. Imperial-Ameriean agreed to farm out and executed an assignment to Burke.

On February 27, 1974, Nueve applied to the Railroad Commission for permission to drill a wildcat well on the Parnell tract. Along with the drilling application the defendant submitted a plat of 352 acres which was very irregular in shape and which included portions of the land covered by each lease in the 1532.66 acre Nueve Lease Block.

Elliott testified by deposition that he drew the unit to conform to the pooling provision of the leases so as to allow an orderly development of acreage that promised to be productive. He testified that he designed a 352 acre pool in anticipation of Railroad Commission field rules should they get a producing gas well. In his affidavit opposing plaintiffs’ motion for summary judgment, Elliott stated as follows:

In my opinion such an orderly development program was in the best interest of both the plaintiffs, as royalty owners, and the defendants, as working interest owners and operator, and this was the most feasible prudent and reasonable manner in which to accomplish the purpose of the leases for the mutual benefit of both the plaintiffs and the defendants. The C. L. Parnell Unit was designated by the defendants in good faith as a part of their plans for the orderly exploration and development of the leases included therein.

On March 27,1974, the defendants Burke Royalty Co., Joe H. Staley, G. T. Kimbell, V. H. Frazier and M. L. Elliott filed a pooled unit designation in Cottle County, which was identical to the plat submitted to the Railroad Commission.

Shortly before midnight on March 31, 1974, Elliott and Burke had a contractor move a drilling rig onto the Parnell land. A wild cat well was drilled at a cost of approximately $130,000. A gas well was completed on May 7, 1974. There is evidence that the operations continued with reasonable diligence and that any delay was merely operational. Because there is no connecting pipeline to this well as yet, it was capped. The defendants have tendered “shut-in” royalty payments to the plaintiffs who have refused to accept them.

By a letter dated June 3, 1974, the Railroad Commission permitted the regular permit for the Parnell well to remain in effect but found that the acreage shown on the plat submitted with the drilling application would be totally unacceptable as a unit to be assigned to the well.

Elliott testified that the lessors had always intended to reform the unit for an orderly development of the acreage, but that the Railroad Commission would not accept a reformed unit because of the pending suit. Attached to Defendants’ First Amended Original Answer and Cross Action and referred to by Elliott in his deposition is a proposed “Reformed Pooled Unit Designation” dated September 23, 1975.

Plaintiff lessees filed this suit seeking a determination that the Pooled Unit Designation was invalid and that the leases expired by their own terms because of the lack of production from or drilling operations on their respective lands during the primary terms. The trial court entered summary judgment for plaintiffs.

A summary judgment may properly be granted only when there is no genuine issue of material fact. Rule 166-A, Texas Rules of Civil Procedure. The burden of proof in a summary judgment case is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).

The anticipatory pooling power given the. lessee in oil and gas leases is necessarily broad. Tiller v. Fields, 301 S.W.2d 185 (Tex.Civ.App.—Texarkana 1957, no writ). In the absence of clear language to the contrary, pooling clauses should not be construed in a narrow or limited sense. Texaco, Inc. v. Lettermann, 343 S.W.2d 726, 732 (Tex.Civ.App.—Amarillo 1961, writ ref’d n. r. e.). There is, however, an implied requirement that the lessee exercise good faith in making the determination to pool. Banks v. Mecom, 410 S.W.2d 300 (Tex.Civ.App. —Eastland 1966, writ ref’d n. r. e.); Tiller v. Fields, supra. The general rule is that the question of what constitutes good faith in the circumstances of a particular case is one of fact to be resolved by the fact finder. Kiser v. Lemco Industries, Inc., 536 S.W.2d 585 (Tex.Civ.App.—Amarillo 1976, no writ); Modular Tech. Corp., Etc. v. City of Lubbock, 529 S.W.2d 273 (Tex.Civ.App.— Amarillo 1975, writ ref’d n. r. e.).

In the case before us, plaintiff lessors contend that they have established by summary judgment evidence that the pooling power was exercised in bad faith as a matter of law and that, therefore, there is no fact issue concerning good faith.

Plaintiff further contends that the requirement that the lessor exercise good faith toward the lessee in pooling is a fiduciary obligation and that defendant should be held to a strict fiduciary standard. It is true that some courts have described the duty of the lessee to the lessor in terms of a “fiduciary obligation on the part of the lessee.” See Expando Production Company v. Marshall, 407 S.W.2d 254 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.) and McCarter v. Ransom, 473 S.W.2d 235 (Tex.Civ.App.— Corpus Christi 1971, no writ). However, we find no ease in which the courts have treated the obligation as a conventional trust relationship.

The cases in question are analyzed in Pritchett v. Forest Oil Corp., 535 S.W.2d 708 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). There, the plaintiff who owned an overriding royalty interest which had been voluntarily pooled into the defendant-unit operator’s unit, relied on the above cited cases and argued that the unit operator had become a trustee and owed her a fiduciary obligation not to acquire any interest adverse to hers. The El Paso court rejected the plaintiff’s arguments and held:

These cases require fairness in the exercise of the pooling power, but none go to the extent of recognizing a conventional trust relationship.

We conclude that the standard of good faith is correctly described in Kuntz, The Law of Oil & Gas, § 48.3, p. 218, as follows:

Although it has been said that the lessee has a fiduciary obligation in the exercise of the pooling power, it is submitted that the lessee is not a fiduciary and that standards applied to fiduciaries are entirely too strict. This is so because the lessee has not .undertaken to manage and develop the property for the sole benefit of the lessor. The lessee has substantial interests that must be taken into account, and he should not be required to subordinate his own interests entirely to the interests of the lessor. Since his interests frequently conflict with those of his lessor, however, he must exercise the power in fairness and in good faith, taking into account the interests of both the lessor and lessee.

We have applied the foregoing standard of good faith to the summary judgment evidence, considering such evidence in the light most favorable to appellant defendants. We conclude that the summary judgment proof, including evidence of the configuration of the unit, the fact that expiration of the primary term of the leases was imminent at the time of the pool designation, and Elliott’s testimony that he did not consider a geological basis in the formation of the unit, raises a fact issue for determination of the trier of fact. We do not find that the evidence so conclusively establishes bad faith that reasonable minds could not differ in considering that question.

The refusal by the Railroad Commission to approve the pooled acreage as a unit to be assigned to the well is not, in itself, determinative of the question of good faith. The Railroad Commission is a conservation body and does not have jurisdiction to effect a change of property rights. Whelan v. Placid Oil Co., 274 S.W.2d 125 (Tex.Civ.App.—Texarkana 1954, writ ref’d n. r. e.). Likewise, the mere fact that the unit was declared and drilling begun shortly before the expiration date of some of the leases does not establish bad faith as a matter of law. In Boone v. Kerr-McGee Oil Industries, 217 F.2d 63 (10th Cir. 1954), wherein the court found that the pooling designation was for the two-fold purpose of properly developing the premises and to extend the leases beyond their primary term, the court stated:

The mere fact that only a few months of the primary term remained does not make arbitrary a decision which, based upon a consideration of relevant factors, was proper. Neither does the pooling arrangement, reached upon a consideration of relevant factors, become arbitrary merely because it relieves appel-lees from ruinous, wasteful drilling operations which would be necessary if it wanted to retain its leases, even if that was one of the factors it had in mind at the time it reached its decision.

Our holding that there is a jury issue on the question of the failure to exercise good faith in making the pooling designation is determinative of this appeal. We do not reach appellants’ remaining points of error.

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


author: WARD, Justice.

text:
    The UNITED STATES of America, Appellant, v. Dorothy M. STELTER, Appellee.
    No. 6586.
    Court of Civil Appeals of Texas, El Paso.
    June 22, 1977.
    Rehearing Denied July 6, 1977.

      John E. Clark, U. S. Atty., Michael T. Milligan, Asst. U. S. Atty., El Paso, for appellant.
    Calhoun, Morton & Deason, Charles A. Deason, Jr., El Paso, for appellee.
   OPINION

WARD, Justice.

This is a garnishment proceeding where summary judgment was granted against the United States as garnishee. The question to be determined is if the ex-wife in a Texas divorce, who has been awarded a portion of the military retirement pay of her ex-husband as her share of the community property, can garnish the United States under 42 U.S.C. Sec. 659. We affirm.

On November 16, 1973, Dorothy M. Stel-ter secured a divorce from Robert W. Stel-ter in the District Court in El Paso. The Court found that the parties had been married for fourteen years, during all of which time the husband had been in the military service; that he had retired after twenty years of service; and that the wife was entitled to receive 7/2oths of the husband’s retirement pay as her share of the community property. The husband never complied with the judgment and the wife, in the divorce cause, instituted the present garnishment proceedings against the United States under 42 U.S.C. Sec. 659. The Government and the wife agreeing that no factual dispute was present, both moved for a summary judgment. The Court, after hearing, denied the motion filed by the United States, granted summary judgment in favor of the wife, and ordered that she recover of the garnishee 7/2oths of the monthly retirement pay due the ex-husband.

Glaring defects in the garnishment proceedings by both parties aside, the United States appeals upon only two points which are similar to the grounds it urged in its motion for summary judgment in the trial Court. It first claims that the trial Court committed error in holding that the military retirement pay was not current wages for personal services under Article 16, Sec. 28 of the Texas Constitution. That Section states:

“Sec. 28. No current wages for personal service shall ever be subject to garnishment.”

Tex.Rev.Civ.Stat.Ann. art. 4099 states:

“No current wages for personal service shall be subject to garnishment; and where it appears upon the trial that the garnishee is indebted to the defendant for such current wages, the garnishee shall nevertheless be discharged as to such indebtedness.”

It is settled that the exemption statute should be liberally construed in favor of the wage earner. To be exempt from garnishment, the money payable to the ex-husband must be due as “current wages” and also as remuneration for “personal service.” For the purposes of this opinion, we might assume that military retirement pay due the ex-husband was exempt from garnishment since it met both requirements. That would not answer the present question, as the wife’s portion no longer belongs to the ex-husband but has been awarded to the wife as her share of the community assets and as a vested property right. The claim on behalf of the ex-husband for exemption does not apply to her property. It is the same as if the homestead had been divided upon divorce, Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), and is similar to that portion of the husband’s workmen’s compensation claim that has accrued or vested prior to divorce and is capable of division regardless of the statutory prohibition forbidding any compulsory assignment of the claim. Piro v. Piro, 327 S.W.2d 335 (Tex.Civ.App.—Fort Worth 1959, writ dism’d w.o.j.). The first point is overruled. Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

Of more concern is the second point presented which is to the effect that the trial Court erred in determining that the word “alimony,” as used in 42 U.S.C. Sec. 659, includes a division of military retirement pay by a Texas Court upon dissolution of the marriage. On January 1, 1975, 42 U.S.C. Sec. 659 became effective whereby the United States consented to be sued for the enforcement of any legal obligation by the ex-husband “to provide child support or make alimony payments.” However, military retirement pay is a vested community property right subject to division by the divorce Court, Busby v. Busby, supra, and it is not an alimony payment. Ex parte Sutherland, 515 S.W.2d 137 (Tex.Civ.App.—Texarkana 1974, writ dism’d). Approaching the question from this viewpoint, the United States Court of Appeals, Fifth Circuit, in Marin v. Hatfield, 546 F.2d 1230 (1977), by dictum, has indicated that the mere fact that the United States has waived immunity for enforcement of alimony obligations does not confer a right to alimony on a party precluded by state law from receiving it. However, in that case, the garnishment proceeding to recover the former wife’s portion of the retirement benefits was filed in a United States District Court, and the Fifth Circuit held that the District Court properly dismissed the suit for lack of federal jurisdiction. See also Morrison v. Morrison, 408 F.Supp. 315 (D.C.1976).

Approaching the problem from the opposite view that “alimony” as used in the federal statutes should be given an all inclusive meaning, the Florida District Court of Appeals for the First District, in passing upon a Texas divorce decree awarding the wife a portion of the retirement benefits, permitted the garnishment against the United States to stand. Williams v. Williams, 338 So.2d 869 (1976). In rejecting the ex-husband’s argument that the payments under the Texas divorce decree were not alimony, the Court stated:

“Like the well-known rose by another name, these postmarital benefits of the Texas decree are tantamount to alimony for the purposes of statutes of the United States securing the enforcement of state alimony awards. See In re Nunnally, 506 F.2d 1024 (5th Cir. 1975), in which the Court of Appeals held a similar Texas award of pension benefits was ‘alimony’ within the meaning of Sec. 17 of the Bankruptcy Act, 11 U.S.C. Sec. 35(a), providing that debts ‘for alimony due or to become due’ are not dischargeable in bankruptcy. For the same reasons, liquidated arrearages due Ms. Williams may be considered ‘alimony’ for purposes of 42 U.S.C. Sec. 659 notwithstanding that the ‘alimony’ may be offensive to Texas policy.”

We adopt the reasoning of the Williams and the Nunnally cases. Otherwise, the beneficial spirit of the law would be sacrificed to its letter. The second point is overruled.

Because of a question asked counsel on oral argument, the garnishee has presented a third point attacking the validity of the divorce judgment insofar as it divides the military retirement pay. We will not consider the point on this appeal, the ground being foreign to the grounds asserted in the motions before the trial Court and possibly not being fully developed.

The judgment of the trial Court is affirmed.

PRESLAR, C. J., not sitting.

      . The United States neither cites nor relies upon any federal exemption statute, and we assume there is no applicable statute covering the retirement involved.


author: COULSON, Justice.

text:
    George GEBERT, Appellant, v. Arthur CLIFTON, Jr., et ux., Appellees.
    No. 1580.
    Court of Civil Appeals of Texas, 14th District.
    June 22, 1977.
    Rehearing Denied July 13, 1977.
    Gay C. Brinson, Jr., Vinson & Elkins, Houston, for appellant.
    Richard W. Mithoff, Jamail & Gano, Houston, Warren E. Burnett, Odessa, for appellees.
   COULSON, Justice.

This is an appeal from the judgment of the 55th District Court of Harris County, Texas overruling appellant’s plea of privilege to have this action transferred to Jim Wells County, Texas, the county of appellant’s residence. Appellees, Arthur Clifton, Jr., and his wife, Nada Clifton, brought this action to recover for the personal injuries sustained by Mrs. Clifton in an intersectional collision in Odessa, Ector County, Texas between a vehicle owned and driven by Nada Clifton, and a vehicle owned by defendant Wilson Industries, Inc., and driven by Wilson’s employee, George Gebert. Ap-pellees filed this action in Harris County, appellant filed his plea of privilege to be sued in Jim Wells County, and appellees filed a controverting affidavit, alleging venue to be established in Harris County under subdivisions 4 and 29a of Tex.Rev. Civ.Stat.Ann. art. 1995 (1964).

Appellees’ controverting affidavit incorporated by reference their original petition, which alleged that defendant Wilson Industries, Inc. and/or Wilson Downhole Engineering, a division of Wilson Industries, Inc. (hereinafter Wilson) owned the vehicle driven by Gebert on the occasion in question; Gebert was the employee of Wilson; Gebert was negligent in causing the automobile accident made the basis of this suit; such negligence was imputable and chargeable to the defendant Wilson; at all times material to this cause of action Gebert was driving such vehicle within the course and scope of his employment for Wilson and with the full permission and consent of Wilson; and the main office of Wilson is in Houston, Harris County, Texas.

The district court overruled appellant’s plea of privilege. We affirm.

Appellees concede that subdivision 29a has no application to this case. Appellant concedes that the appellees have proven that Wilson is a resident of Harris County, and that Gebert, the non-resident defendant, is at least a proper party to appellees’ claim against Wilson. Appellant contends that the appellees have not, as required by subdivision 4, pleaded and proved that they have in fact a cause of action against Wilson, the resident defendant.

Thus, the only issue left to be resolved by the trial court was whether at the time in question George Gebert was acting within the scope of his employment, thereby rendering defendant Wilson liable under the doctrine of respondeat superior.

Gebert’s residence and normal place of work was in Alice, Jim Wells County, Texas. He was employed by Wilson to manage its office in Alice. Mr. Mac Ponder, the district manager for Wilson and supervisor of Gebert, testified on deposition that he sent Gebert from the office in Alice to the office in Odessa because the Odessa office manager had been fired, and it was necessary to have Gebert travel to Odessa immediately to take care of the files and business in the Odessa office. He further testified that at the time and on the occasion in question, Gebert had full permission and authority to use the car owned by Wilson; Gebert was using the car in the furtherance of Wilson’s business in Odessa; Wilson furnished office managers transportation only when on special assignment; Wilson pays the expenses of its employees that are out of town on business; and Wilson would have paid Gebert’s taxi fare from his motel to the Odessa office had no company car been provided. Gebert testified on deposition that the vehicle was furnished him in furtherance of his job and business for Wilson, and just for the time that he stayed in Odessa.

Where the evidence establishes that a vehicle was owned by an employer and driven by his employee, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. The presumption arises from the fact of ownership of the vehicle and employment of the driver; and when unrefut-ed, the presumption prevails that the driver was acting within the scope of his employment. Once the presumption is rebutted by positive evidence to the contrary, the presumption disappears and the plaintiff must introduce independent evidence showing that the employee was acting in the course and scope of his employment. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357-59 (Tex.Sup.1971).

An employee is not ordinarily within the course and scope of his employment while using the public streets in going to or coming from work. An exception to this rule is where the employee has undertaken a special mission at the direction of his employer, or is performing a service in furtherance of the employer’s business with the express or implied approval of the employer. American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957).

Wilson argues that the evidence established that Gebert was merely driving to work at the time of the accident; this evidence effectively rebutted the presumption that Gebert was within the course and scope of his employment; no relative affirmative evidence beyond the ownership of the car and the fact of Gebert’s employment was offered; and, therefore, the plea of privilege should have been sustained. We disagree.

This court was faced with a factual situation somewhat similar to the facts of the present case in Creekmore v. Horton & Horton, Inc., 487 S.W.2d 148 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). Creekmore was not a plea of privilege case, but the issue was whether the defendant was acting within the course and scope of his employment at the time of the accident in question. The plaintiff in that case sustained personal injuries when her car was struck by a car owned by Horton & Horton and driven by one of the company’s employees on his way home from work. The evidence established that the car was furnished by the employer to be used in the employee’s work; the employee was permitted to drive the car home and keep it at night; the employer paid the operating expenses of the car; and the employer paid the cost of repairing damage to the car which resulted from the collision.

Horton & Horton was granted summary judgment on the ground that the evidence showed as a matter of law that the employee was not acting within the course and scope of his employment at the time of the collision. Chief Justice Tunks reversed and remanded:

The evidence, wholly apart from any presumption arising out of the facts of employment and ownership of the vehicle, raised the issue of scope of employment and effectively prevented the movant for summary judgment from showing that such element of the plaintiff’s cause of action was, as a matter of law, negated.

Creekmore v. Horton & Horton, 487 S.W.2d at 150. See also Dictaphone Corp. v. Torrealba, 520 S.W.2d 869 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

Wilson did not prove that Gebert was merely driving to work at the time of the accident. Gebert’s home and office were in Alice. He would not have been in Odessa but for the special circumstances brought about by the firing of the Odessa office manager. Gebert was in Odessa at the direction of his employer and in furtherance of the employer’s business.

Even if we assume that Wilson introduced sufficient evidence to rebut the presumption, there is ample independent evidence that Gebert was within the course and scope of his employment at the time of the accident. The trial court properly overruled appellant’s plea of privilege.

Judgment affirmed.


author: CIRE, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Geraldine J. STEVENS, Individually and as Administratrix of the Estate of Louis Morris Stevens, Deceased, Appellee.
    No. 1572.
    Court of Civil Appeals of Texas, 14th District.
    June 22, 1977.
    Rehearing Denied July 13, 1977.

      Robert A. Rowland, III, Vinson & Elkins, Houston, for appellant.
    0. Joseph Damiani, Houston, for appellee.
   CIRE, Justice.

Defendant in a suit to recover payments under an insurance policy appeals from a judgment for plaintiff, presenting, inter alia, the question of the propriety of the “dynamite” charge in Texas.

On October 21,1973 Louis Morris Stevens was killed when the automobile he was driving crashed head-on into a bridge abutment in Brazoria County. Appellee Geraldine J. Stevens, individually and as adminis-tratrix of the deceased’s estate, demanded payment of appellant Travelers Insurance Co. and other companies on policies insuring the life of the deceased. Appellant and the other companies refused to pay, contending the deceased committed suicide, an event which limited the companies’ liability or excluded it entirely. Appellee then sued the companies for payment.

The case was twice tried before a jury. Evidence was presented for five days in the first trial, and a mistrial was declared after the jury was unable to reach a verdict. At the second trial, the statement of facts shows strongly conflicting evidence was presented over the course of four days on the question of whether the deceased died by accident or committed suicide.

The case was submitted to the jury on two special issues inquiring whether the death was caused by (1) accident or (2) suicide. The jury began deliberations late Friday afternoon and, after some four hours, the foreman sent a note to the court, explaining that the jury had been deadlocked eight to four for well over an hour, that a poll of the jurors indicated there was no likelihood of a change, and requesting instructions from the court.

The appellant’s bill of exceptions reveals that the court discussed the jury’s note in chambers with counsel and considered a number of alternatives, including a sample “dynamite” or “Allen” charge intended to urge the jurors to reach a verdict. Appellant’s counsel announced to the court that use of the supplemental charge would be detrimental to appellant and expressed his intention to object if the charge were given to the jury. The conference in chambers concluded without the court advising counsel of what action it intended to take. The court then gave to the jury an oral, supplemental charge which varied from the sample read in chambers. Contrary to rule 286, Texas Rules of Civil Procedure, the charge was not in writing. The charge was not reported, but the judge later dictated his recollection of it into the record nunc pro tunc and then modified it by granting in part the “attempt to recollect the Court’s additional statements” filed by appellant’s counsel as part of its bill of exceptions. The charge as modified read:

Ladies and Gentlemen of the jury, I have your note that for the past hour you have been deadlocked by a vote of 8 to 4. You request further instructions. This Case has been ably tried by lawyers, experienced, of long standing, and in the interest of justice, if you could end this litigation by your verdict, you should do so.
What is more, ending it will meet with the approval of the Court. I don’t mean to say by that that any individual person on the jury should yield his own conscience and positive conviction, but I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully and listen to each other, and try, if you can, to reach a conclusion on the issues. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by fellow jurors that they may arrive at the verdict which justly answers the consciences of the individuals making up the jury. A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. He should not surrender any conscientious views founded upon the evidence unless convinced by his fellow jurors of his error.
It has cost the taxpayers of Harris County considerable expense to have this case tried before a Jury over the past week.
I am satisfied ladies and gentlemen that you have not deliberated sufficiently so that, in good conscience, I can accept a report that you cannot arrive at an agreement. It will take considerably more time before anyone can satisfy me as to that. Accordingly, I return you to your deliberations.

After this charge was given, the jury retired to continue its deliberations. Appellant’s counsel then timely objected to the charge for the record, and the objection was overruled.

The jury deliberated approximately 20 minutes before asking to be excused for the weekend. They returned Monday morning and, after deliberating some four hours, returned a verdict favorable to appellee, finding that the death was caused by accident, not suicide. Ten jurors concurred in this verdict.

Appellant presents 12 points of error. The first seven points assert that there was no evidence to support the submission of the two special issues and that the jury’s answers to these issues were not supported by sufficient evidence. We believe the jury’s verdict was supported by sufficient evidence. These points are overruled.

The ninth point assigns error in the court’s submission of the supplementary charge urging the jury to reach a verdict, because it was coercive in that it influenced and changed the vote of those jurors in the minority. We agree.

This supplemental charge urging the jury to reach a verdict—known as the “dynamite” or “Allen” charge (after Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896])—is improper for a number of reasons.

The supreme court long ago held that it was improper for a court to advise the jurors on the manner in which they were to reach their verdict, as by reconciling differences and avoiding pride of opinion. The jurors’ prepossessions and inclinations of mind must be held or surrendered alone, without the court’s instructions. Gulf, C. & S. F. Ry. v. Johnson, 99 Tex. 337, 342, 90 S.W. 164, 165 (1905); Reed v. Bates, 32 S.W.2d 216, 219 (Tex.Civ.App.-Beaumont 1930, no writ).

The charge that, in the interest of justice, the jury should end this litigation if it could do so, and that ending it would meet with the court’s approval, was coercive in getting members of the minority to change their views. Texas Midland R.R. v. Brown, 228 S.W. 915, 916-17 (Tex.Com.App. 1921, holding approved).

The court also erred in emphasizing the point that it was a considerable expense to the taxpayers of the county to have the case tried before a jury. This part of the charge indicated to the minority jurors that it was wasteful not to reach a verdict, and that it was in their personal interest (if taxpayers) and a community service to save the county any additional expense by reaching a verdict and avoiding another trial. It was prejudicial and coercive to suggest that failure to reach a verdict was wasteful. Texas Midland R. R. v. Brown, 228 S.W. at 916; Missouri, K. & T. Ry. v. Barber, 209 S.W. 394, 395 (Tex.Com.App.1919, holding approved).

Appellee points to rule 226a, Texas Rules of Civil Procedure, as approval of an instruction that a retrial of a case is a wasteful expense to the parties and the county. That rule provides that members of a jury panel shall be given certain admonitory instructions before voir dire, including this caution:

If you do not obey the instructions I am about to give you, it may become necessary for another jury to re-try this case with all of the attendant waste of your time here and the expense to the litigants and the taxpayers of this county for another trial.

But this reference to the expense of a trial refers only to the jurors’ failure to obey the court’s instructions. It does not urge the minority jurors to reconsider their decision, to reconcile their differences, and to reach a verdict.

We can well understand how a trial judge in a case such as this, where there had already been one mistrial, would be inclined to give such a charge. It would be permissible if given in writing, Tex.R.Civ.P. 286, with the agreement of counsel for all parties, but for all of the above reasons, it may not otherwise be given.

Our holding on this point makes it unnecessary to decide the remaining points of error.

The judgment is reversed, and the case is remanded for trial.


author: PHILLIPS, Chief Justice.

text:
    Melvin MATHIS, Appellant, v. Carole Ann WALLACE, Appellee.
    No. 12586.
    Court of Civil Appeals of Texas, Austin.
    June 22, 1977.
    R. Dan Green, Austin, for appellant.
    A. T. “Moon” Mullins, and Kirk Kuyken-dall, Lockhart, Kuykendall & Jones, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant sought a permanent injunction against appellee which would require her to remove a house now standing on her lot in a subdivision in Travis County. Appellant contends that the house was built in violation of certain building restrictions previously imposed upon the subdivision. The trial court dissolved a temporary injunction hitherto granted, denied further injunctive relief, and entered judgment for appellee. It is from this judgment that appellant has perfected his appeal to this Court. We affirm.

This appeal presents, essentially, two questions. The first is whether appellee had erected, in contravention of the resub-division restrictions, the house in question on a lot smaller than three acres. These restrictions placed a three-acre minimum on lots further subdivided.

The land appellant had originally purchased consisted of 24.01 acres; however, in building her home she mortgaged one acre of land immediately surrounding the house. It is the giving of the mortgage to the acre that appellant contends is a breach of the restriction. We think not.

In the first place, as found by the trial court, the evidence discloses that other lots of less than three acres had been created in the subdivision prior to appellee’s placing of a mortgage on the house and surrounding acre, thus effecting a waiver of any enforcement of this particular restriction.

In the second place, the mortgaging of the acre in question was not, of itself, a breach of the restriction. Without indulging the esoteric question of title at this point, suffice to say, the lot was not resub-divided for further sale. In our judgment, the possibility of a foreclosure and sale in the future is of no moment now.

The second question to be decided is whether appellee breached the restriction stating “. . . nor shall any building or structure be moved upon the premises.”

In its findings of fact, the trial court found that appellee did not move a building onto her property. The evidence discloses that appellee had her house partially preas-sembled off the premises. It was then cut in halves and each half was moved separately and set down on concrete foundation piers that had previously been erected upon the premises. The halves were then joined.

There was evidence that some thirty man trips from the work site to the building site are normally required to finish houses built in this manner. Thus, no “building or structure” was moved upon the premises, instead parts of a building were erected upon the premises to be joined by other parts, hitherto completed, the whole then forming the complete building or structure.

We note from the evidence that in today’s building trades, preformed or pre-built components of certain structures or buildings are widely in use. Trusses used in roofing or sash and cabinet work parts are being built off the premises, moved on and used to complete a building. The best that can be said for the restriction in question, under the facts of this case, is that it is ambiguous and unclear. Consequently in such cases, all doubts should be resolved against the imposition of the restriction. See Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925); MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969); and Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958).

The judgment of the trial court is in all things affirmed.