author: NYE, Chief Justice.

text:
    Warren PINNEY, Jr. and Charles M. Dodd, III, Appellants, v. Keith E. COOK, Appellee.
    No. 1208.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Rehearing Denied Nov. 23, 1977.

      Robert M. Roller, Dallas, for appellants.
    J. G. Adami, Jr., Alice, for appellee.
   OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

Our original opinion is withdrawn and this opinion is substituted therefor.

This is a venue case. Appellee Cook brought suit in Nueces County against Warren Pinney, Jr. and Charles M. Dodd, III for breach of certain alleged agreements between the parties concerning the operation of an oil and gas lease on some land owned by Cook in Duval County. Defendant Pinney filed a plea of privilege to be sued in Dallas County. Cook filed a controverting plea. After hearing, the trial court denied Pinney’s plea of privilege. Pinney has perfected his appeal to this Court.

Pinney and Dodd are the co-owners of an oil and gas lease on some 320 acres owned by Cook in Duval County. Pinney and Dodd acquired this lease in 1973. Apparently the parties had some initial agreement whereby the oil that was produced from the lease was to be stored in storage tanks located on the property. In 1974 an oil spill occurred on the property due to a leak in one of the storage tanks. Thereafter the parties entered into a new agreement wherein Pinney and Dodd were to connect the well to an oil flow line owned by Cook and remove the storage tanks from the property. Pinney and Dodd also agreed with Cook to pay Cook a certain amount of rental for either each barrel of oil produced and sent through the pipeline, or for each barrel of fluid produced and sent through the pipeline. At the time of the hearing, the storage tanks remained on the property.

The cause of action that is now before this Court is the second suit brought by Cook against Pinney. In 1974 Cook sued Pinney in Duval County for damage to his cattle and other matters. Pinney filed a plea of privilege which was overruled by the trial court. Pinney appealed and the Tyler Court of Civil Appeals reversed the trial court’s judgment, and ordered the case transferred to Dallas County. Pinney v. Cook, 534 S.W.2d 415 (Tex.Civ.App.—Tyler 1976, no writ). Thereafter, in May of 1976, Cook took a non-suit and the first case was dismissed without prejudice.

In July of 1976 Cook brought this present suit against Pinney and Dodd in Nueces County for improper rental payments; for an accounting on the pipeline rental; and for failure to remove the storage tanks. Dodd filed a general denial. Pinney again filed a plea of privilege to be sued in Dallas County and a general denial. Cook then filed a controverting plea wherein he alleged venue in Nueces County under subsections 4 and 29a of Article 1995, Tex.Rev. Civ.Stat.Ann. (1964). Pinney’s plea was subsequently overruled by the trial judge. No findings of fact or conclusions of law were requested or made by the trial judge.

Pinney in his appeal and motion for rehearing presents three main points of error to this Court. The first point is whether or not Cook is estopped by the principle of res judicata to establish venue outside of Dallas County.

Pinney contends Cook has simply reiniti-ated the same lawsuit in Nueces County that he filed in Duval County in 1974. Pin-ney says that since both cases involve the same issues, Cook is estopped by principles of res judicata from asserting venue in Nueces County. A review of the separate pleadings is necessary to determine if the two suits are identical. In the first suit Cook actually sought two separate recoveries against Pinney alone: a) damages to his cattle due to the negligence of Pinney’s agents; and b) damages for failure of Pin-ney to remove the storage tanks which allegedly forced him to overgraze the remainder of his pasture. In the second suit Cook sought recovery from Pinney and Dodd: a) for the amount of rental due on the pipeline; and b) for the failure to remove the storage tanks which allegedly caused overgrazing. The storage tank claims remained the same even though in the second suit Cook abandoned his negligence claim, included an additional claim for recovery of the pipeline rental payments, and added Dodd as an additional defendant as to each claim asserted against Pinney. The question therefore for us to decide, is, to what extent is venue in the second suit controlled by the previous adjudication of venue by the Tyler Court of Civil Appeals?

As a general rule, a final judgment rendered on a plea of privilege is conclusive on the parties as to the issue of venue and such judgment irrevocably fixes venue of any suit involving the same subject matter. Hagemeister v. Vanity Fair Properties, 503 S.W.2d 879 (Tex.Civ.App—Tyler 1973, writ dism’d); see H. H. Watson Co. v. Cobb Grain Co., 292 S.W. 174 (Tex.Comm’n App.1927, judgmt. adopted); Keys v. May Aluminum, Inc., 431 S.W.2d 380 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ dism’d); Southwestern Investment Company v. Gibson, 372 S.W.2d 754 (Tex. Civ.App.—Fort Worth 1963, no writ). In order for the principles of res judicata to apply the subsequent suit must involve the same subject matter and the same parties as the initial suit. Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958 (1940); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222 (1943); Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App.—Corpus Christi 1966, ref. n. r. e.); Gathright v. Riggs, 344 S.W.2d 757 (Tex.Civ.App.—Waco 1961, no writ).

The Tyler Court of Civil Appeals overruled the trial court’s determination that Cook’s 1974 suit was properly brought in Duval County under subsection 9 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964) and ordered the suit transferred to Dallas County. This decision irrevocably fixed venue in Dallas County as to both claims against Pinney in the first suit. The principle of res judicata dictates that any subsequent suit brought by Cook against Pinney based on either claim should also be heard in Dallas County. 1 McDonald, Texas Civil Practice, § 4.62, at 628—29 (1965); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222, 224 (1943); Keys v. May Aluminum, supra, Roach v. Trinity Universal Ins. Co., 119 S.W.2d 127, 128 (Tex.Civ.App.—Texarkana 1938, no writ). Venue is fixed in Dallas County as to Cook’s storage tank claim against Pinney even though Cook added defendant Dodd to this suit. The mere presence of Dodd does not prevent the former judgment from binding both Cook and Pinney who were parties to that judgment and to this suit in which Pinney asserted the plea of res judicata. Southwestern Investment Co. v. Gibson, 372 S.W.2d 754, 756 (Tex.Civ.App.—Fort Worth 1963, no writ). The trial court should have sustained Pinney’s plea of res judicata on the storage tank claim, and ordered it transferred to Dallas County.

The transfer of this claim against Pinney to Dallas County does not necessarily require transfer of the same claim against Dodd to Dallas County. Such a transfer would be necessary only if Cook alleged a joint action growing out of joint liability of both defendants. • This is a contract action for damages which appears to involve joint and several liability of the defendants. Cook can obtain complete relief in a suit against either Pinney or Dodd even though joinder might otherwise be desirable. 1 McDonald, Texas Civil Practice, § 4.57, pp. 619-20 (1965); 44 Tex. Jur.2d, Parties § 17 (1963); International Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d 543, 546 (1959); Johnson v. First Nat. Bank of Brenham, 42 S.W.2d 870, 871—72 (Tex.Civ.App.—Waco 1931, no writ). Furthermore, Dodd was not a party to the original suit between Cook and Pinney and is not bound by the principle of res judicata on the issue of venue. Sports Specialties, Inc. v. James Talcott Western, Inc., 389 S.W.2d 357, 360 (Tex.Civ.App.—Waco 1965, no writ).

While the addition of Cook’s claim for improper rental payments in the second suit does not affect Pinney’s previously adjudicated right to have venue in Dallas County as to the storage .tank claim, res judicata does not control venue of Cook’s rental payment claim against Pinney because the subject matter in dispute in the subsequent suit differs from the prior action. 1 McDonald, Texas Civil Practice § 4.62, p. 628 n. 68 (1965); H. Molsen & Co., Inc. v. E. W. Settle, 534 S.W.2d 376, 378 (Tex.Civ.App.—Dallas 1976, no writ); Keys v. May Aluminum, Inc., 431 S.W.2d 380 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ dism’d); Gathright v. Riggs, 344 S.W.2d 757 (Tex.Civ.App.—Waco 1961, no writ).

The resolution of each separate claim will involve facts and issues that are not similar. Each claim alleges a separate breach which could be adjudicated in separate lawsuits. Cf. Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.Sup.1971); Martinez v. Angerstein, 517 S.W.2d 811 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d); Keys v. May Aluminum, 431 S.W.2d 380 (Tex.Civ. App.—Houston [14th Dist.] 1968, writ dism’d).

Although both claims could properly be joined in a single suit, a single suit cannot be maintained vin Nueces County without the consent of Pinney. The scope of the trial court’s venue hearing should have been limited to whether venue could be maintained in Nueces County on Cook’s second claim against Pinney and Dodd. We therefore sustain Pinney’s first point of error as it relates to Cook’s cause of action for Pin-ney’s alleged failure to remove the storage tanks.

Appellant Pinney’s points 2 through 10 complain that the trial court erred in sustaining venue under subdivision 4 of Article 1995. Subdivision 4 to Article 1995 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. Under Subdivision 4, where there are resident and non-resident defendants, it has long been the rule that in order to maintain venue in the county of the resident defendant, the plaintiff is required to: (1) plead and prove that one of the defendants is a resident of the county of suit; (2) plead and prove a cause of action against the resident defendant; and (3) allege a joint cause of action against the non-resident defendant or a cause of action against the resident defendant which is so intimately connected with his cause of action against the non-resident defendant that both defendants are properly joinable to prevent a multiplicity of suits. Proof of this connection between the resident and non-resident defendant is supplied by the allegations in the plaintiffs’ petition. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Comm’n App.1936, opinion adopted); Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.—Corpus Christi 1971, no writ); Western Steel Company v. Hayek, 452 S.W.2d 732 (Tex. Civ.App.—Corpus Christi 1970, no writ); Pittsburg Plate Glass Company v. Bragg, 383 S.W.2d 623 (Tex.Civ.App.—Dallas 1964, writ dism’d).

Based on these elements we examine the pleadings and the evidence presented at the hearing. Scott Cook, a witness for Ap-pellee Cook, testified that he personally knew that Dodd was a resident of Nueces County and had seen his home two years prior to the hearing. Dodd himself testified that he was a resident of Nueces County. In Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ) we stated that under subdivision 4 it is the residence of the defendant at the time suit is filed which controls the venue issue. Although no one testified directly that Dodd was a resident of Nueces County in July of 1976, there is no evidence he was not a resident of Nueces County at that time. Therefore it was proper for the trial court to impliedly find from the existing circumstantial evidence that Dodd was a resident of Nueces County at the time the suit was filed.

The next question is whether or not a cause of action based on improper rental payments was proved against Dodd. Cook testified that there was an agreement between Pinney, Dodd and himself that required Pinney and Dodd to pay him for the transportation of fluids through the pipeline. He then testified that he was not being paid the proper amount for the rental under the agreement because he was being paid for only the amount of oil transported through the pipeline. Cook stated he visited the property every other day and personally observed that salt water as well as oil (which flowed through the pipeline) was hauled away in transport trucks. Based on his observations, Cook stated that the ratio of brine to oil transported was three to one. This evidence coupled with Cook’s testimony that the agreement called for him to be paid $.25 per barrel of fluid or $50 per month whichever is greater, as rental which Pinney and Dodd failed to do, established the amount of his damages. This evidence was sufficient to establish a cause of action against Dodd.

Dodd’s connection with Pinney is clearly established in Cook’s petition. The petition alleges that Pinney and Dodd are co-owners of the lease and jointly executed the agreement in question. Clearly Cook has alleged a cause of action against Dodd which is so intimately connected with his cause of action against Pinney that joinder would be proper under subdivision 4 of Article 1995. Although there were conflicts in the evidence, the trial court was at liberty to resolve the conflicts and inconsistencies in favor of Cook. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). The trial court was correct in sustaining venue in Nueces County under subdivision 4 of Article 1995. Appellant Pinney’s points of error 2 through 10 are overruled.

Pinney’s final points are that venue was not sustainable under subdivision 29a of Article 1995. Subdivision 29a authorizes a plaintiff who sues two or more defendants to maintain venue against all the defendants in a county where venue is proper as to one of the defendants under some other subdivision of Article 1995. Since we have already determined that Dodd was a resident of Nueces County, this subdivision has no application to this suit. Subdivision 29a applies only when none of the defendants resides in the county of suit. Amoco Production Company v. Mayer, 540 S.W.2d 353 (Tex.Civ.App.—Beaumont 1976, writ dism’d); Bee County Cooperative Associa tion v. Dominy, 489 S.W.2d 418 (Tex.Civ. App.—Corpus Christi 1972, no writ); McCollum v. Merchants Factors Corp. of Texas, 358 S.W.2d 183 (Tex.Civ.App.—Dallas 1962, no writ). See 1 McDonald § 4.36, p. 544 (1965).

In the trial court’s order overruling Pinney’s plea of privilege, the court did not recite which venue exception it held applicable in overruling the plea. Nor did the trial court make any findings of fact or conclusions of law. Where the trial court does not make findings, it is this Court’s duty to affirm the order of the trial court if it can be sustained on any reasonable theory suggested by the evidence and authorized by law. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Mobile County Mutual Insurance Co. v. Jacobs, 531 S.W.2d 436 (Tex.Civ.App.—Corpus Christi 1975, no writ); Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.—Dallas 1940, writ ref’d). Therefore we must assume the trial court overruled Pinney’s plea of privilege under subdivision 4 of Article 1995 and not subdivision 29a.

The judgment of the trial court as it relates to Cook’s claim against Pinney for failure to remove the storage tanks is reversed and judgment is here rendered that this cause of action is severed and ordered transferred to Dallas County. In all other respects the judgment of the trial court is affirmed. The costs are prorated 50-50 to the appellants and appellee.

Reversed and rendered in part and affirmed in part.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Marsha Jane PESEK, Individually and as next friend of Kristen Leigh Pesek, Appellant, v. MURREL’S WELDING WORKS, INC., Appellee.
    No. 15784.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 12, 1977.
    Rehearing Denied Nov. 9, 1977.

      Pat Maloney, San Antonio, for appellant.
    Edward P. Fahey, Groce, Locke & Heb-don, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a venue action. Eugene R. Pesek, the husband and father of plaintiffs, suffered fatal injuries while operating a hot oil truck in Frio County, Texas on January 24, 1976. Pesek was fatally burned in an explosion occurring while the hot oil unit was being used to recycle oil from a storage tank, with the oil being heated and then returned to the tank to make the oil less viscous. Plaintiffs’ suit was filed in Frio County, Texas against Murrel’s Welding Works, Inc., a resident of Hockley County, Texas, the designer and manufacturer of such hot oil truck, which was sold by defendant to Associate Services, Inc., Pesek’s employer. Defendant filed a plea of privilege to be sued in the county of his residence. Plaintiffs timely filed their controverting affidavit contending venue was proper in Frio County, Texas under Subdivisions 9a, 23, and 31 of Art. 1995, Tex.Rev. Civ.Stat.Ann. (1964). The trial court, without a jury, sustained defendant’s plea of privilege and the case was transferred to the District Court of Hockley County.

The trial court filed findings of fact which may be summarized as follows:

1. The accident occurred in Frio County, Texas.

2. At the time of the accident in question and on the date this suit was instituted, plaintiffs resided in Atascosa County, Texas.

3. The residence of defendant at all material times was Hockley County, Texas.

4. Defendant did not have an agent or representative in Frio County, Texas.

5. The hot oil truck involved was designed, manufactured, sold, and delivered by defendant in Hockley County, Texas in 1968.

6. Plaintiffs failed to prove that when the hot oil truck was originally sold in 1968 that it was defective in design, manufacture, or assembly.

7. Plaintiffs failed to prove by a preponderance of the evidence that when the hot oil truck was sold it was unreasonably dangerous.

8. Plaintiffs failed to prove that at the time of the accident the hot oil truck was in substantially the same condition as when it was sold.

9. On the date of the accident, the hot oil truck was being misused.

10. Plaintiffs failed to prove any act or omission of negligence on the part of defendant that occurred in Frio County, Texas.

11. Plaintiffs failed to prove that the causes of action alleged, or a part thereof, arose in Frio County, Texas.

12. Plaintiffs failed to prove that the hot oil truck is “consumer goods.”

13. Plaintiffs did not allege in their petition a cause of action based upon a breach of warranty for a manufacturer of “consumer goods.”

14. Plaintiffs failed to prove that the defendant breached any warranty of consumer goods.

15. Plaintiffs failed to prove that their cause of action, or a part thereof, accrued in Frio County, Texas.

Seven of plaintiffs’ points of error attacked findings of fact of the trial court, which points of error may be summarized as follows:

The trial court erred in holding that plaintiffs failed to prove that: (1) when the hot oil truck was sold to the original owner in December 1968 it was defective in design, manufacture, and assembly; (2) when the hot oil truck was originally sold by defendant it was unreasonably dangerous; (3) at the time of the accident the hot oil truck was in substantially the same condition as it was when originally sold; (4) the causes of action alleged, or parts thereof, arose in Frio- County, Texas; (5) the hot oil truck is consumer goods; (6) plaintiffs did not allege a cause of action based upon breach of warranty by a manufacturer of consumer goods; and (7) the defendant breached any warranty of consumer goods.

Plaintiffs’ last point of error is that the trial court erred in concluding that the plea of privilege should be sustained.

The purpose and function of a hot oil truck is to take crude oil from a battery storage tank and pump it out of the tank and put it through some coils which have a fire under them. This treats and thins the oil and reduces the viscosity of the oil which is put back in the tank.

The only eyewitness to survive the accident, Thomas Chavez, testified that Pesek had been called out to where the hot oil unit was being operated because they were having trouble with its operation. He stated that Pesek was in the process of climbing a ladder on an oil tank to check the temperature of the oil when he saw fumes coming out of the tank; that Pesek yelled to Jim Hincher, another employee of Associate Services, to cut the fire off, and that’s when the explosion occurred. Hincher was also killed in the accident.

Robert Bledsoe, the owner and operator of Associate Services, testified that he purchased Associate Services sometime after Pesek had started working for them; that Pesek was a hot oil operator at the time he purchased the business, but that he eventually promoted Pesek to field supervisor. He stated that Jim Hincher, the other employee who was also killed in the explosion, had operated a hot oil tank for about two months; that the hot oil truck should have been placed at least 100 feet from the tank and it should have been placed in the position where the wind is blowing away from the unit; that it should not be operated at a time when the winds are not blowing; and that while this is good practice, standard procedure in the industry is somewhat different, and the hot oil unit is frequently hooked up much closer, chiefly because of time and expense.

Bledsoe testified that the temperature on the day in question was probably about 75 degrees and that there was no wind. He stated that the hot oil unit was not burned in the accident; that it was a flash fire and by the time the fire department got there it was completely out. He stated that Hincher probably thought he had turned the pilot light off, but that when he was told by Pesek to “be sure your pilot light is off,” he reached to give the pilot light valve another turn; that at this point Hincher saw a flame; and that possibly he was not able to turn off the pilot light.

He further testified that as far as he knew, no parts or equipment had been taken off the unit between the date of manufacture and the date of the accident, but that parts were replaced from time to time as they needed to be replaced.

Plaintiffs rely chiefly on the testimony of Dr. Grady Rylander, who is head of the Department of Mechanical Engineering at the University of Texas. He stated that the unit involved in this litigation is a Pacemaker 75, manufactured by Murrel’s Welding Works of Levelland, Hockley County, Texas. He stated that he inspected the particular unit here involved some months after the accident and it was in a state of partial dismemberment; and that he also subsequently went to defendant’s plant and looked at other units under construction.

Rylander testified that he didn’t think the design had the safety equipment on it that should have been on it to protect the operating personnel and others that were nearby. In answer to hypothetical questions as to the equipment, he stated that in his opinion it was not designed safely; that there were additional safety devices that needed to be included in the design; that other safety devices are available that would have made this unit safe; that with proper safety equipment on the unit there would have been no explosion; and that the cost of the unit would have been increased about 10% if it had been equipped with the devices he felt should have been included.

On cross examination, he stated that the first time he ever looked at the design of the hot oil truck was in August 1976; that when he looked at the truck here involved it was partially dismantled and he could not actually say what equipment was on the truck at the time of the accident; and that he really didn’t know how the truck involved in the accident was equipped on January 24, 1976, the date of the accident.

In summary, he testified that there were two design defects: (1) A rapid positive shut off of the gas which an operator could actuate was missing. (2) A sensor that would detect the presence of combustible gas in the proximity of the truck and would automatically shut down all fire in the unit, including the pilot light, was missing.

On recross, he admitted that he had no idea how other manufacturers were making hot oil trucks in 1968 and had no idea if other manufacturers were putting on sensors.

Murrell Brown, the owner of Murrel’s Welding Works, testified with regard to the safety devices installed on the unit. He stated that there were no other safety devices known to the defendant at the time the product was manufactured or assembled or installed. He further testified that the manufacture of the unit was built to comply with the applicable provisions of the rules and regulations of the Texas Railroad Commission, and that an inspection was made by a representative from that agency. He stated that the defendant performed no maintenance service on the product after its sale.

He further testified that he examined the unit on August 10, 1976, after the accident, and found that the propane valve, the safety valve on the back, was completely off and gone and was hooked up direct; that the C02 fire system was inoperative; that five joints of discharge pipe were missing; that the solenoid valve, which is the main shut-off valve that shuts the propane off from the burners, was completely off and gone; and that the purpose of the solenoid valve was mainly for safety so that if anything happened all an operator had to do was to push a switch and it would all shut down, pilot, burners, and all.

We regard plaintiffs’ points of error as no evidence points. Plaintiffs do not seek a remand of the plea of privilege for a new trial but ask that the case be reversed and returned to Frio County for a trial on the merits.

In this connection, we deem it proper to point out the character of our review here. In Banks v. Collins, 152 Tex. 265, 257 S.W .2d 97 (1953), it was expressly held that the test on appeal from an order sustaining or overruling a plea of privilege is the same in any other civil cases. If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal.

Defendant does not here assert that the trial court’s finding and verdict is against the great weight and preponderance of the evidence.

Plaintiffs here rely on Subdivisions 9a, 23, and 31, Art. 1995.

Subdivision 23 provides, among other things, that “[sjuits against a private corporation, association, or joint stock company may be brought ... in the county in which the cause of action or part thereof arose; . . . .” Under this Subdivision, plaintiffs must show by a preponderance of the evidence all elements of a cause of action against the corporate defendant whose plea of privilege is being contested, this being the same cause of action alleged and relied upon by the plaintiffs in their petition and controverting affidavit.

Plaintiffs wholly failed to prove venue under Subdivision 23 in Frio County, Texas. Plaintiffs assert that the hot oil unit was defective when manufactured and sold. As such, the breach occurred at the time of the manufacture and sale of such property, which was in Hockley County in 1968. Moreover, the defendant did not contract to do anything, or participate in any transaction in Frio County, Texas. The fact that the injury and damages occurred in Frio County, Texas is insufficient to show that the cause of action or a part thereof occurred in Frio County. See Employers Casualty Co. v. Clark, 491 S.W.2d 661 (Tex.1973); Stone Fort Nat’l Bank of Nacogdo-ches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936); Johns-Manville Sales Corp. v. Haden Co., 543 S.W.2d 415 (Tex.Civ.App.—Ft. Worth 1976) writ ref’d n. r. e., per curiam, 553 S.W.2d 759 (Tex.1977); American Quarter Horse Association v. Rose, 525 S.W.2d 227 (Tex.Civ.App.—Ft. Worth 1975, no writ). All the trial court’s findings of fact pertaining to Subdivision 23 are sufficiently supported by the evidence.

Subdivision 9a provides that a suit based upon negligence may be brought in the county where the act or omission of negligence occurred, or in the county where the defendant has his domicile. Under this Subdivision, to sustain venue in a county other than the county of defendant’s residence it was necessary for plaintiffs to establish by a preponderance of the evidence that (1) an act or omission of negligence occurred in the county where the suit was filed; (2) that such act or omission was that of the defendant or of his servants, agents, or representatives acting within the scope of their employment; and (3) that such negligence was a proximate cause of plaintiffs’ injuries.

The negligent acts or omissions relied upon by plaintiffs to sustain venue in Frio County under Subdivision 9a are defects in design and manufacture of the hot oil unit consisting chiefly of failure to supply certain safety devices on the truck at the time it was manufactured. Any negligence necessarily occurred at the time and place of manufacture, which was in Hockley County, Texas.

The county in which a negligent act or omission occurs is determinative, and the fact that damage was sustained in a second county will not support venue in the latter. 1 McDonald, Texas Civil Practice § 4.17.2 (1965).

In Leonard v. Abbott, 366 S.W.2d 925 (Tex.1963), Abbott sued Leonard in Lamar County for damages to his crops located in Lamar County. Defendant had sprayed herbicides on defendant’s lands located in Hopkins County and plaintiffs asserted that this caused damage to plaintiffs’ land which was situated in Lamar. Defendant filed a plea or privilege to be sued in the county of his residence and plaintiff controverted, relying on Subdivision 9a. The question presented to the court was whether a suit against a defendant, whose negligent act in one county causes damages in another county, may be tried in the county where the damages occurred. The Court held for the defendant, and said:

An act can only occur where the act actually takes place. ‘Occur’ does not include the results of the occurrence, but only the taking place, happening or coming to pass.

Under the record before us, venue is not sustainable in Frio County, Texas under Subdivision 9a, and the trial court’s findings of fact and holdings pertaining to Subdivision 9a are sufficiently supported by the evidence.

Plaintiffs rely basically on Subdivision 81. Subdivision 31 provides:

Suits for breach of warranty by a manufacturer of consumer goods may be brought in any county where the cause of action or a part thereof accrued, or in any county where such manufacturer may have an agency or representative, or in the county in which the principal office of such company may be situated, or in the county where the plaintiff or plaintiffs reside.

There is no evidence in the record (1) that defendant had an agency or representative in Frio County; (2) that their principal office was situated in Frio County; or (3) that plaintiffs were residents of Frio County-

It is undisputed that plaintiffs are residents of Atascosa County. It is also undisputed that defendant’s residence is Hockley County, Texas.

Plaintiffs therefore must and do rely on that part of Subdivision 31 which provides that suits for breach of warranty by a manufacturer of consumer goods may be brought in the county where the cause of action or a part thereof accrued.

It was incumbent upon plaintiffs to prove by a preponderance of the evidence (1) that the product involved was “consumer goods” and (2) that the cause of action or a part thereof accrued in Frio County.

All pertinent findings of fact by the trial court in this regard were adverse to plaintiffs, the court finding, among other things, that (1) plaintiffs failed to prove that the hot oil truck is “consumer goods”; (2) plaintiffs did not allege in their petition a cause of action based upon a breach of warranty by a manufacturer of consumer goods; (3) plaintiffs failed to prove that the manufacturer breached any warranty of consumer goods; and (4) plaintiffs failed to prove that the cause of action alleged, or a part thereof, accrued in Frio County.

The trial court also found that (1) plaintiffs failed to prove that when the truck was sold in 1968 it was defective in design, manufacture, or assembly; (2) plaintiffs failed to prove that when the truck was sold it was unreasonably dangerous; and (3) plaintiffs failed to prove that at the time of the accident the hot oil unit was in substantially the same condition as when it was sold.

Plaintiffs’ first obstacle was to prove that the hot oil truck was consumer goods. The term, “consumer goods,” is not defined in this Subdivision of the venue statute. The only Texas case we have concerning this particular venue provision under Subdivision 31 is the recent case of Maintenance and Equipment Contractors v. John Deere Co., 554 S.W.2d 28 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ filed). This suit involved a tractor allegedly manufactured by John Deere Co. Plaintiff sustained injuries while operating such tractor. Plaintiff’s cause of action was based upon negligence and strict liability in tort for defective design. The Court of Civil Appeals held that the tractor was “consumer goods” under the provisions of Subdivision 31 of Art. 1995.

Assuming arguendo, that the hot oil truck here involved was consumer goods within the meaning of the statute, plaintiffs still had another difficult burden, that is, to prove a cause of action against defendant under Subdivision 31 accruing in Frio County, Texas. Plaintiffs rely heavily on the above mentioned case of Maintenance and Equipment Contractors v. John Deere Co. We do not regard such case as controlling in the matter before us. It was undisputed in that case that the plaintiff in such suit was a resident of the county where the suit was brought, and Subdivision 31 specifically provides that suits for breach of warranty by a manufacturer of consumer goods may be brought in the county where the plaintiff resides. Such opinion specifically points out that plaintiffs relied on this portion of Subdivision 31 to maintain venue in the county where the suit is filed.

The Court further said,

Considering the language of subdivision 31, it is our opinion that a cause of action must be proved if venue is sought in the county where the cause of action or part thereof accrued. However, the cause of action is not an essential venue fact if the plaintiff established that the defendant has an agency, representative or its principal office in the county where suit is filed, or if suit is filed in the county where the plaintiff resides. 554 S.W.2d at 31.

In the case before us it is undisputed that plaintiffs were residents of Atascosa County at all relevant times. It is also clear from plaintiffs’ briefs and pleadings that they rely on that part of Subdivision 31 that is predicated upon the existence of a cause of action accruing in Frio County, Texas.

Defendant asserts, and the trial court found, that plaintiffs did not allege a cause of action based upon a breach of warranty by a manufacturer of consumer goods. Assuming, without deciding, that the pleadings were sufficient, plaintiffs wholly failed to prove that a cause of action or a part thereof accrued in Frio County for breach of warranty of consumer goods.

Plaintiffs rely on evidence by Dr. Rylan-der, an expert witness who testified in some detail with regard to design defects, defects in manufacture or assembly, and the need for additional safety devices. He admitted that he did not examine the hot oil truck until some months after the accident occurred and that the hot oil unit was partially dismantled that time; that he could not state what equipment or devices were actually on the hot oil unit at the time of the accident; that he did not know as to whether the truck that he examined in August 1976 was in the same condition as the one that was sold in 1968; and that he could not tell exactly how the truck was equipped at the time of the accident.

Our Supreme Court, in Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948), in discussing opinion evidence, said:

That character of testimony is but evi-dentiary and is never binding upon the trier of facts. * * * Opinion testimony does not establish any material fact as a matter of law.

In a later case by the Supreme Court, Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 189 (1958), the Court said:

While, in a limited sense, all testimony may involve opinions of the witnesses, the proof here was peculiarly of the ‘opinion’ or ‘expert’ type, and the occasion has to be at least highly exceptional when such testimony, even though not contradicted by an opposing expert, must be deemed true as a matter of law. * * * the mere qualification of a witness as an expert does not cut off the factfinder from exercising considerable judgment of his own about how far his opinions are to be relied on.

Even if we accept Dr. Rylander’s opinion as true, his testimony is to the effect: (1) that the design, manufacture, and assembly of the hot oil truck was defective; (2) that there was a failure to include certain safety devices at the time- of the manufacture; and (3) that the truck was unreasonably dangerous at such time. The acts relied upon by plaintiffs all occurred in Hockley County at the time of the design, manufacture, and assembly of such hot oil unit in 1968, many years prior to the accident here complained of. Such evidence does not establish the necessary venue facts to maintain venue in Frio County, Texas, even if it is accepted as true. Moreover, there is conflicting testimony of other witnesses and much of Rylander’s testimony is disputed.

We have concluded that: (1) the trial court’s material findings of fact are sufficiently supported by the evidence; (2) plaintiffs failed to prove by a preponderance of the evidence a cause of action against defendant in Frio County, Texas; (3) plaintiffs failed to establish the necessary venue facts to maintain venue in Frio County, Texas under Subdivisions 9a, 23, or 31, Art. 1995; (4) plaintiffs failed to prove the necessary venue facts to maintain venue in Frio County, Texas.

The trial court correctly sustained defendant’s plea of privilege. The judgment is affirmed.

      . In Banks, 257 S.W.2d at 99, the court said:
      This court, in the case of Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, announced the correct rule when testing the probative force of the evidence when it said: ‘The honorable Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence; but it could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff — then it is to be concluded that there is evidence to support the verdict.

      . The Supreme Court, in Banks, 257 S.W.2d at 100, also said:
      A new trial may always be ordered by the Court of Civil Appeals where the verdict or findings in the trial court are against the great weight and preponderance of the evidence if the point has been properly raised. . . . However, if the evidence should not so greatly preponderate in favor of the plaintiff as to indicate that the finding of no negligence was the product of bias, then the duty of the Court of Civil Appeals would be to affirm the judgment of the trial court sustaining the plea of privilege.

      . Various definitions of consumer goods are found in other statutes.
      (a) The Uniform Commercial Code, Art. 9.109, Tex.Bus. & Comm.Code Ann. (1968), defines “consumer goods” as follows:
      “Goods are
      (1) ‘consumer goods’ if they are used or bought for use primarily for personal, family or household purposes; . .
      (b) The Deceptive Trade Practices Act, Art. 17.45, Tex.Bus. & Comm.Code Ann., (Supp. 1977), provides:
      “(1) ‘Goods’ means tangible chattels or real property purchased or leased for use.
      * * * * ⅜ ⅜
      (4) ‘Consumer’ means an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services.”
      (c) The Federal Consumer Products Safety Act, 15 U.S.C. § 2052(a)(1) (Supp.1977), defines consumer product as meaning: “[A]ny article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around permanent or temporary household or residence, a school, in recreation, or otherwise . . . .”
      (d)Subdivision 5(b), art. 1995 (Supp.1977), provides in part as follows:
      “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 . . . may be brought against the defendant ... in the county . . . .”

      . Defendant asserts that nowhere in plaintiffs’ petition do they assert or mention breach of warranty of consumer goods, and that plaintiffs.’ first pleading, which asserts breach of warranty and Subdivision 31, is their controverting affidavit. Plaintiffs maintain that this is sufficient.
      It is true that there are certain subdivisions in the venue statutes that do not require proof of the cause of action (Subdivisions 14 and 27), and it is also true that some venue facts may be properly alleged in the controverting plea without being set up in the petition. See Wilson’s Pharmacy, Inc. v. Behrens Drug Co., 494 S.W.2d 161 (Tex.1973). However, the Supreme Court in that case said:
      “The nature of the suit is an important venue fact under several subdivisions of Art. 1995, and the petition is the best and all sufficient evidence of the nature of the suit. . The character of the suit as disclosed by the petition cannot be changed for venue purposes by allegations in the controverting plea. Where the nature of the suit is an essential venue fact, therefore, this fact should appear in or from both the petition and the controverting plea.”


author: DIES, Chief Justice. KEITH, Justice,

text:
    Tom JOHNSON, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 8013.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      Sid S. Stover, Jasper, for appellant.
    O. J. Weber, Beaumont, for appellee.
   DIES, Chief Justice.

Plaintiff below, Tom Johnson, filed suit against Texas Employers’ Insurance Association (T.E.I.A.) in the District Court of Jefferson County for Texas Workmen’s Compensation, alleging an accidental injury while employed by Bethlehem Steel Corp. T.E.I.A. answered by a plea in abatement and to the jurisdiction contending that .plaintiff’s injuries “come -solely under the jurisdiction of the Longshoremen [Longshoremen’s] & Harbor Worker’s [Workers’] .Act” (L.H.W.C.A.), which the court sustained and from which plaintiff brings this appeal.

Plaintiff’s first contention is that his injury was not covered by R.H.W.C.A.

Bethlehem’s Beaumont shipyard is located on an island and is engaged in repairing and constructing marine vessels. Plaintiff was an assistant crane operator or “hooker” in the fabrication shop. Steel is brought into this “fab” shop and then -fashioned into a component part for the vessel under repair or construction. It (the fab shop) is about 75 to 100 feet from navigable water.

After completion, the component is moved out of the fab shop to the vessel by crane and barge.

At the time of his injury, plaintiff’s time was being charged to “No. 1 cross-over” for the new construction of a semisubmersible offshore drilling rig. These vessels float and are moved to a drilling location either by tugs, or some have their own propulsion. The “cross-over car” is part of the superstructure of the vessel. This type of rig has been held a “vessel” as used in 33 U.S.C.A. § 903(a) (1977) hereafter set forth in this opinion. McCarty v. Service Contracting, Inc., 317 F. Supp. 629 (E.D.La.1970); Robichaux v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587 (W.D.La.1970).

In 1972, Congress added these amendments to the L.H.W.C.A.:

“Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). [33 U.S.C.A. § 903(a) (1977)]
“The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . . . [33 U.S.C.A. § 902(3) (1977)]
“The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). [33 U.S.C.A. § 902(4) (1977)]”

A very recent opinion of the U.S. Supreme Court, Northeast Marine Terminal Company, Inc. v. Caputo (International Terminal Operating Company, Inc. v. Blundo), 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977), construed these amendments.

Respondent Blundo whose job as a “checker” at a pier for petitioner International was to check and mark cargo being unloaded from a vessel or from a container taken off a vessel, was injured when, while marking cargo, he slipped on some ice on the pier.

Respondent Caputo was a terminal laborer hired by Petitioner Northeast to load and unload barges and trucks and received injuries while loading a dolly loaded with ship’s cargo into a consignee’s truck.

A unanimous Court held that both Blun-do and Caputo satisfied the “status” test of eligibility for compensation under the L.H. W.C.A. since they were both engaged in maritime employment and were therefore “employees” with the meaning of 33 U.S. C.A. § 902(3) at the time of their injuries. The injuries of both respondents occurred on a “situs” covered by the Act.

It is obvious that under this decision our plaintiff satisfied the “status” and “si-tus” requirement of the Act and was an “employee” within the meaning of 33 U.S. C.A. § 902(3) at the time of his injuries. This point is overruled.

Plaintiff’s next and last point is that coverage under the Federal Act is not exclusive. 33 U.S.C.A. § 905(a) of the Act provides:

“(a) The liability of an employer prescribed in Section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer.”

This section says that if an employer sees that an injured employee secures payment of compensation as required by this Act, then the employer is protected from tort liability to such employee. This is the typical provision in State Compensation Acts. There is no indication in this section of the Act that Federal coverage is exclusive of any other.

We have been cited to but one case handed down since the 1972 Amendments on this subject of exclusivity, Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976). This case held the Federal Act was not exclusive.

The decisions hold that Federal regulation of a field of commerce should not be deemed to divest state regulatory power unless (1) the nature of the regulated matter permits no other conclusion or (2) that the Congress has unmistakenly so ordained. Askew v. American Waterways Operators, 411 U.S. 325, 93 S.Ct. 1950, 36 L.Ed.2d 280 (1973); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

In Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937), the court stated:

“The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by Federal action, is superseded only where the repugnance or conflict [between the State and Federal laws] is so ‘direct and positive’ that the two acts cannot ‘be reconciled or consistently stand together.’ ” 302 U.S. at 10, 58 S.Ct. at 92 (citations omitted).

Even though, through amendments and case law, the coverage of the Federal Act has been extended, at the same time virtually all injuries on the water have also been held to be covered by the state acts. Bas-kin v. Industrial Accident Commission of the State of California, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949); Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948); Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Richard v. Lake Charles Stevedores, 95 So.2d 830 (La. App.1957), cert. denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958); De Graw v. Todd Shipyards Co., 134 N.J.L. 315, 47 A.2d 338 (1946), cert. denied 329 U.S. 759, 67 S.Ct. 113, 91 L.Ed. 655 (1946); Behrle v. London Guarantee & Accident Co., 76 R.I. 106, 68 A .2d 63 (1949), cert. denied 339 U.S. 928, 70 S.Ct. 627, 94 L.Ed. 1349 (1950).

The fact that Congress did not in this Act preclude operation of State Compensation Law is persuasive. It (The Congress) certainly has expressly done so in other acts. See the Defense Base Act, Sect. 1(c), 42 U.S.C. Sect. 1651(c); Sect. 2(c) of the Non-Appropriated Fund Instrumentalities Act, 5 U.S.C., Sect. 8173; War Hazards Compensation Act, Sect. 105(a), 42 U.S.C. Sect. 1705(a). Surely when Congress enacted the 1972 Amendments above set out, if it had wished to completely divest the State Acts of jurisdiction, it would have so expressly stated.

Before the 1972 Amendments, the State Compensation Acts and the L.H.W.C.A. were concurrent in their jurisdiction. Cal-beck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). See also, Davis v. Department of Labor & Industries of State of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953). Of this latter case, the court in Calbeck, supra, said at 370 U.S. 129, 82 S.Ct. 1204:

“Since a marine railway was considered to be a ‘dry dock’ the injury satisfied § 3(a)’s requirement that it occur ‘upon navigable waters’ At the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it. See State Industrial Com. v. Nordenholt Corp., 259 U.S. 268, 42 S.Ct. 473, 66 L.Ed. 933, 25 A.L.R. 1013, 21 N.C.C.A. 862.” (Emphasis supplied)

In Calbeck, supra, the contention was made that acceptance of compensation under the Louisiana statute was an election of remedies which bars prosecution of a claim under L.H.W.C.A. The court rejected this contention and expressly approved the Deputy Commissioner’s (under L.H.W.C.A.) act m crediting the full amount of all payments under the Louisiana act against the L.H.W. C.A. award to make impossible “impermissible double recovery” (370 U.S. 131, 63 S.Ct. 225).

The purpose of the 1972 Amendments was to extend the coverage, and the uniformity desired was to cover qualified employees beyond the water’s edge. See Ca-puto, supra.

The reason for the change brought about by the amendments is said by Professor Arthur Larson to be money.

By 1971, there were eleven maritime states with higher benefits than the L.H.W. C.A. “The traffic was made up mostly of claimants trying to avoid the Federal act and claim under a State act.” (Larson at 290). In 1972, Congress more than doubled the benefits under L.H.W.C.A.; by 1975, only Alaska had higher benefits. Extension of the coverage by the 1972 Amendments was invited by the U.S. Supreme Court in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), saying: “. . . if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution” (404 U.S. at 216, 92 S.Ct. at 426). “. . . the denial indeed did become intolerable when the federal benefits were more than doubled.” (Larson, supra, at 292).

In Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), quoted in Larson, supra, at 294, the court stated:

“We join in the observation of the Law Judge that the intent of Congress in extending the Act was not to ‘open the doors’ to all employees, but to minimize the adverse effect of a shoreside location or situs when a maritime employee is injured.” (Id. at 961)

Professor Larson concludes his article with these words at 342-344:

“There remains the question: What if anything did the 1972 Amendments do to change the law as to ‘twilight zone’ and concurrent jurisdiction doctrines? The answer seems to be: factually, a great deal; legally, not much. . . . When the concurrent or successive jurisdiction question takes the form of a state award followed by a federal award, there would thus be no problem. But suppose a borderline worker in Alaska wants to escape from the Longshoremen’s Act into the higher paying Alaska act. The case might first arise as a twilight zone example. For reasons just sketched, a holding below in favor of state coverage might well be left undisturbed. But suppose a Longshoremen’s Act award had already been made. The main ground of the leading pre-1972 case allowing supplemental state compensation, Hansen v. Perth Amboy Dry Dock Co., was not the ‘absence of state power clause’ but the emergence of the ‘valid state interest’ test. This main ground remained unaffected by the 1972 Amendments. Nor did the addition of the ‘maritime employment’ test, as just noted, raise any new constitutional problems.
“As a matter of federal preemption, the courts would probably uphold the application of the Alaska act as merely supplementing the federal act, not conflicting with it. The purpose of the federal act was to guarantee a federal remedy of a certain minimum size. .
“To invoke the supremacy clause, federal interest should be found ‘so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’
“In view of the background of pre-1972 concurrent and supplementary coverage cases, in view of the creation by Congress of large new areas of uncertainty of coverage putting workers to the possible hazard of wrong initial choices, and in view of the failure of Congress by express language in the amendments to preempt the field as against any possible competing state act, it seems likely that supplementary awards would be upheld even when the federal award had come first.” (Emphasis added)

In Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), (quoted on p. 344 of Larson) the court said:

“Congress legislated here in a field which the states have traditionally occupied [citation omitted.] So we start with the assumption that the . . . powers of the states were not meant to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

That this attitude still prevails in the U.S. Supreme Court is attested by these words handed down by the Court since the 1972 Amendments:

“While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the Framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States.” (411 U.S. 341, 93 S.Ct. 1600.)

Therefore, since jurisdiction was not exclusive before the 1972 Amendments, we see nothing in the Amendments to justify or support T.E.I.A.’s contention that they (the 1972 Amendments) have divested the Texas Act of jurisdiction.

As to the argument that concurrent jurisdiction will result in double recovery, when the State award comes first Calbeck, supra, has removed that fear. And, we here and now hold that should plaintiff below, Tom Johnson, recover any award under the Texas Act, the entire amount awarded under L.H.W.C.A. shall be deducted from that award.

That Bethlehem is a self-insurer under L.H.W.C.A. and pays premiums to T.E.I.A. under the State Act presents no real problem, for under either scheme the employer pays the bill, depending on its injury record.

Appellant’s second point is sustained; the order of the trial court is reversed, and the case is remanded for trial.

REVERSED and REMANDED.

KEITH, Justice,

concurring and dissenting.

This is a most unusual case.

Plaintiffs employer determined that he was an employee within the meaning of § 902(3), Longshoremen’s and Harbor Workers’ Compensation Act [33 U.S.C.A. §§ 901-50 (Supp.1977) amending portions of 33 U.S.C.A. §§ 901-50 (1970)], hereinafter “LHWCA”; the plaintiff agreed in this determination by accepting some $3,000 from Bethlehem in payment of benefits under LHWCA; and, now this court has agreed that the parties made the correct determination of coverage: Plaintiff was, indeed, covered as a beneficiary under LHWCA when he was injured. I concur in the first section of the opinion so holding but note my concurrence in a more simplified manner: Plaintiff satisfied both the “status” and “situs” tests of eligibility for compensation. See Mr. Justice Marshall’s comments found in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). “Status” is discussed in part III of the opinion (432 U.S. at 265, 97 S.Ct. at 2358, 53 L.Ed.2d at 334), and “si-tus” is discussed in part IV (id., at 279, 97 S.Ct. at 2365, 53 L.Ed.2d at 342). I do not attempt to improve upon the language used by a unanimous court.

My disagreement with the majority is in the second facet of the opinion. I would hold that federal coverage is exclusive and that there is no longer an area of concurrent jurisdiction in the field of maritime employment; that when Congress extended its admitted jurisdiction to include a shore-based employee such as plaintiff, it removed potential state court jurisdiction over such an employee.

But, first to the unusual nature of the case. Plaintiff has invoked the jurisdiction of the state district court to collect the weekly compensation payments which he claims are due by reason of his injury. In so doing, to paraphrase one of the writers on the subject, he walked out of a $318.38 act [LHWCA] into a $70 act [Texas], I will comment upon possible motivation later. To say the least, this is a most unusual move by a claimant of money benefits.

The only case which discussed the specific question now under consideration is Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), which, although favorable to the position of the majority, is disposed of in a single sentence.

I have given careful consideration to this decision in our neighboring state but am not persuaded that we should follow the holding. Instead, I adopt this language found in defendant’s brief:

“The only case cited by the Appellant in support of his position, Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976) begs the question and totally fails to analyze the changes brought about by the 1972 Amendments. Rather the Louisiana Court conducts a detailed analysis of pre-1972 opinions where pre-emption was not at issue by the very language of the Act. The pre-1972 cases were put into their proper perspective by the United States Court of Appeals for the Ninth Circuit when it stated:
“ ‘We relegate those decisions to limbo because it is obvious to us that the 1972 amendments radically changed the basis for an employee’s entitlement to federal compensation.’ Weyerhaeuser Company v. Gilmore, 528 F.2d 957, 960 (1976).”

I turn now to an analysis of the coverage question, noting that before the 1972 amendments to LHWCA, § 903(a) read:

“Compensation shall be payable under this chapter . . . but only . if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.”

This language in the earlier Act which specifically did not preempt valid state coverage, gave rise to the procedural dilemma which plagued the courts for nearly a half century. Justice Marshall spoke to the problem in Caputo, supra, saying:

“Congress’ initial apprehension of the difficulties inherent in the existence of two compensation systems for injuries sustained by amphibious workers proved to be well-founded. The courts spent the next 45 years trying to ascertain the respective spheres of coverage of the state and federal systems. As one commentator described, ‘the relationship between [LHWCA] and the otherwise applicable State Compensation Act [was] shrouded in impenetrable confusion.’ G. Gilmore and C. Black, The Law of Admiralty, 409 (2d ed. 1975) [Gilmore].” (432 U.S. 259, 97 S.Ct. at 2354, 53 L.Ed.2d at 330)

Having sustained plaintiff’s contention, the majority now returns to the same “impenetrable confusion” which preceded the congressional effort to fashion a single and all-inclusive system covering all workers upon the waterfront engaged in maritime employment. One of the reasons advanced by the legislative sponsors was alluded to in Caputo where the Court quoted extensively from the reports containing the legislative enactment of the 1972 amendments, noting the disparity of benefits payable under state and federal acts and the inadequacy of state benefit payments. Id. .at 261, 97 S.Ct. 2356, 53 L.Ed.2d at 332.

Primarily, the confusion which existed before the Congress acted in 1972 was caused by the judicially created theory that LHWCA was supplementary in nature. The concept was explained in Stockman v. John T. Clark & Son of Boston, 539 F.2d 264, 270 (1st Cir. 1976), cert. denied, - U.S. -, 97 S.Ct. 2972, 53 L.Ed.2d 1092 (1977):

“Thus before the [1972] amendments, the [federal] Act was regarded as a rather limited supplement to state workmen’s compensation laws, designed not to supersede or improve upon those laws but to fill a gap which the states were without jurisdiction to fill.”

Speaking of the original LHWCA adopted in 1927, Mr. Justice Marshall noted in Caputo, supra, that "it was designed simply to be a gapfiller — to fill the void created by the inability of the States to remedy injuries on navigable waters.” (432 U.S. at 258, 97 S.Ct. at 2354, 53 L.Ed.2d at 329-330) In Nacirema Operating Co., Inc. v. Johnson, 396 U.S. 212, 223-24, 90 S.Ct. 347, 354, 24 L.Ed.2d 371, 380 (1969), the Court noted that Congress, not the courts, could move “the line” separating the employees covered by the state and federal acts — and, as said in Caputo, supra, “In 1972, Congress moved the line.” (432 U.S. at 260, 97 S.Ct. at 2355, 53 L.Ed.2d at 331) It is inconceivable that Congress intended to perpetuate the procedural Serbonian bog then in existence.

Plaintiff’s contention, simply stated, is that the concept is now reversed: the State Act is supplementary to LHWCA; or, from a practical standpoint, he can collect under the Federal Act, supplement it under the State Act, and then return for more compensation under the Federal Act. The result now reached by the majority is not concurrent jurisdiction — it is state supplemental jurisdiction. I paraphrase language from Nacirema, supra, used in a different context: I “refuse to impute to Congress the intent of burdening the administration of compensation by perpetuating such confusion.” (396 U.S. at 221, 90 S.Ct. at 352, 24 L.Ed.2d at 379)

In order to achieve this result, it is necessary for plaintiff to excise from the Act the provisions of § 905, reading:

“The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee . . .” (emphasis supplied)

Plaintiff, covered by the Federal Act by his self-insured employer, now claims that he has a supplemental claim against his employer’s State Act insurer. He has yet to explain why his exclusive claim under the Federal Act has been lost.

In Dravo Corp. v. Maxin, 545 F.2d 374, 379 (3rd Cir. 1976), cert. denied, -U.S. -, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977), the Court reviewed only a few of the decisions of the United States Supreme Court setting out the supremacy rule as applied in admiralty and maritime cases, noting that the Congress “has paramount power to determine the maritime law which shall prevail throughout the country.” It exercised such power in the 1972 amendments and stated its intention in the legislative history accompanying the enactment:

“ ‘The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity.’ ” [Caputo, supra, 432 U.S. 266, 97 S.Ct. 2358, 53 L.Ed.2d 334, fn. 27]

We need no citation of authority to support the proposition that the laws of the United States made pursuant to the Constitution of the United States are supreme under the provisions of Art. VI, Cl. 2 thereof. Indeed, it has been held that there was a valid preemption of state action if state legislation violated any one of several applicable tests, including: “Or the state policy may produce a result inconsistent with the objective of the federal statute.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947).

Equality in benefits due the injured workman cannot be achieved through the concurrent operation of state acts in the field staked out by the Congress. The benefits payable to the injured workman in Texas are much lower than those provided under the LHWCA. If there is concurrent jurisdiction in the state court, as plaintiff contends, it must be concurrent when invoked by the employer or his carrier as well as when invoked by the claimant/workman. Jurisdiction over the subject matter exists only by operation of law and cannot be conferred by consent or waiver. Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943); Burke v. Satterfield, 525 S.W.2d 950, 953 (Tex.1975).

Having held that the employee may proceed under the State Act (to collect a maximum of $70 per week), I suggest that the majority has held that the insurance carrier of the employer has a concomitant right to proceed in that court and avoid paying plaintiff a maximum of $318.38 per week under LHWCA. I do not attribute to a Congress, seeking uniformity in benefits payable to waterfront workmen, any such intention when it adopted the 1972 amendments to LHWCA; yet, that is the result of today’s opinion.

The Texas Workers’ Compensation Act is, basically, a single-shot claim or cause of action with little, if any, administrative supervision. On the other hand, the Federal Act is virtually a cradle-to-grave act once an injury triggers its application.

Thus, I am led to the conclusion that the 1972 amendments have finally ended the long standing jurisdictional problem in this area of the law. I conclude that plaintiff’s claim for compensation was one exclusively under the Federal Act and that the trial court properly decided that it had no jurisdiction over the claim under the State Act. This court so held in Lisenby v. Texas Employers’ Insurance Association, 487 S.W.2d 366 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.), and should do so again. See also Warner v. Travelers Insurance Company, 332 S.W.2d 789, 795 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.).

Admittedly, Lisenby and Warner were decided before the 1972 amendments to the Federal Act; but they enunciate a principle of law which is still applicable: Federal jurisdiction in the area of maritime employment, when it attaches, is exclusive.

Unfortunately, the majority fails to advise the parties how a double recovery can be avoided. At least one state court has rejected the so-called “double recovery.” See Texas Employers’ Insurance Association v. Chappell, 486 S.W.2d 818 (Tex.Civ. App.—Corpus Christi 1972), reversed in part on other grounds but undisturbed as to the holding under consideration, 494 S.W.2d 159 (Tex.1973).

The right of set off under the Texas Act is very doubtful. It was denied in Texas Indemnity Ins. Co. v. Arant, 171 S.W.2d 915, 920 (Tex.Civ.App.—Eastland 1943, writ ref’d w. o. m.). The Austin court has denied offset in at least two cases where the city was a self-insurer: City of Austin v. Clendennen, 323 S.W.2d 158 (Tex.Civ.App.— Austin 1959, writ ref’d n. r. e.), and City of Austin v. Webster, 424 S.W.2d 720, 723 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.). Two of the foregoing cases were cited in Travelers Insurance Company v. Walkovak, 390 S.W.2d 75, 78 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.), which reached the same result.

Then, too, it must be recognized that compensation paid under the State Act is exempt from “garnishment, attachment, judgment and all other suits or claims” and is not assignable. Tex.Rev.Civ.Stat.Ann. art. 8306, § 3 (1967). Payments made by a third party, even under a mistake of fact, may not be recovered from money due a claimant under the Act. Lively v. Blue Cross Hospital Service, Inc., 488 S.W.2d 474 (Tex.Civ.App.—Eastland 1972, writ ref’d n. r. e.). Indeed, as pointed out by Chief Justice McCloud in Lively, supra, it has been held that an insurer who mistakenly paid workmen’s compensation to an injured workman had no right to intervene in a suit wherein the workman was seeking to recover benefits from another insurer for the same period of time for which he had been paid by intervenor. Id. at 475.

In short, I have not been cited to any case which would permit Bethlehem to recoup its payments made under the Federal Act in any suit by plaintiff to recover additional benefits under the State Act, nor have I found any such authority in my own research.

Should TEIA seek to interpose, even as a partial defense in plaintiff’s suit in the state courts to recover compensation for the same weeks for which he had been paid by Bethlehem, it is extremely doubtful if such a defense would be tenable. Lively, supra. Indeed, it might be that Bethlehem would be considered to be a “volunteer.”

Thus, if the double recovery is to be prevented, it must be at a time when plaintiff resumes his efforts to recover benefits under LHWCA after exhaustion of the State benefits. The majority disposes of this serious question with alarming simplicity:

“As to the argument that concurrent jurisdiction will result in double recovery, when the State award comes first Cal-beck, supra, has removed that fear. And, we here and now hold that should plaintiff below, Tom Johnson, recover any award under the Texas Act, the entire amount awarded under L.H.W.C.A. shall be deducted from that award.” (emphasis added)

The majority and counsel have been equally reticent in pointing to any authority under LHWCA which would permit Bethlehem to offset payments made by TEIA under the State Act against additional claims; or, for that matter, authority which would permit TEIA to recover under LHWCA for payments it made under the State Act.

I note, in passing, that LHWCA also has an exemption of benefits from claims of creditors [33 U.S.C.A. § 916 (1970)] but I have found no cases which discuss the question. It is easy for the majority to speak of a denial of a double recovery; but it appears that an effective denial of such a recovery is difficult, if not impossible. One thing is certain: the means of accomplishment are not readily apparent.

I now return to the possible motivation of a plaintiff (or his counsel) to seek compensation under the State Act for injuries received while covered by LHWCA. In this analysis of motivation, I specially disavow any assumption that a more favorable factual determination may be had in one forum as opposed to the other. Such an assumption (absent a strong factual base in the record) would be abhorrent to our system of administration of justice. Certainly, as demonstrated earlier in the analysis of the Acts, the injured workman may recover under the Texas Act less than a fourth of the weekly benefits to which he would be entitled under LHWCA. To encourage the injured workman to “walk” (see text accompanying fn. 9, supra) from one act to the other, there must be some strong and persuasive reason. I speculate that it possibly may be attributable to two concurrent factors: (a) the prevalent and widespread practice [of which I take judicial notice] of lump-sum settlement agreement being concluded between the compensation carrier and the injured workmen under the Texas practice, even when the claim is for temporary partial incapacity; and (b) the difference in the method of affixing (and the amount of) the fees of the injured workman’s counsel. As to the first, the attractiveness of a lump sum payment to the injured workman may well outweigh the advantages of a much larger sum dribbled out over a long period of time.

As to the second factor, an examination of the two Acts reveals a vast difference in the treatment of such fees. Whereas, under the State Act, an award of one-fourth of the benefits payable is practically standard since authorized by the Act [Art. 8306, §§ 7c and 7d (Supp.1977)], under LHWCA fees may be charged against the employer or insurer or fixed by the Board or court under other circumstances [§ 928(a) — (c) (Supp.1977)].

While this is, perhaps, one explanation of the strange desire to “walk”, I am unwilling to ascribe such motives to able counsel for the plaintiff in this cause who bears an outstanding reputation for ability, probity, and adherence to the highest standards of professional ethics. Thus, while I have examined the briefs, listened attentively to the arguments of counsel, and studied the law applicable to the case, I have not been pointed to any sound reason for this court to create or to perpetuate this new “twilight zone” with its accompanying problems.

Moreover, I am concerned over the possible harm which will result from an application of the rule announced by the majority — harm to the employer and to the workman. There is a vast difference in the State and Federal Acts. Judge Brown in Flowers v. Travelers Insurance Company, 258 F.2d 220, 225 (5th Cir. 1958), noted that LHWCA is “almost self-executing”, and continued:

“The heart of any such system is the mandatory report of an injury by the employer within 10 days under § 930(a). A failure to file subjects the employer to the sanctions of civil penalties, § 930(e).”

It is an understatement to assert that the Texas Act is anything but “self-executing.”

Should the employer elect to consider the injured workman subject to the State Act— and not to pay him under LHWCA — grave consequences could result. Obviously, there is considerable exposure of the employer to financial harm should he guess — or proceed — incorrectly under the two acts of “concurrent” jurisdiction as determined by the majority.

On the other hand, the employee, pursuing his “concurrent” remedy in the state court may well do so at his peril. If it be determined finally that the federal remedy is exclusive, those who have sought and procured state benefits may well find themselves without any remedy.

As I noted earlier, if the Texas courts have jurisdiction of the claim of an injured employee such as our plaintiff under the State Act — at the suit of the employee— such courts also have jurisdiction of a suit by the employer under the same circumstances. If the employer asserted the “concurrent jurisdiction” theory now announced by the majority, plaintiff would be paid only a fraction of what would be due him under the Federal Act. Such a result, if upheld, would be a financial catastrophe to the injured workman. Moreover, for a state court to take jurisdiction of such a claim at the instance of an employer would constitute an impermissible interference with the federal compensation system; such action would destroy the goal of uniformity sought by the Congress; and, such an attempt would likely meet with judicial disapproval in both the state and federal judicial systems. Yet, the majority creates a one-way street for the employee which may not be used by the employer.

As much as I approve the Texas de novo procedure with a jury determining the fact issues as contrasted with the bureaucratic substantial evidence procedure embodied in the Federal Act, I see nothing but confusion facing Texas waterfront workmen and their employers. The newly espoused “concurrent jurisdictional” or “supplemental compensation” theories of the majority will, in my opinion, inevitably lead to confusion in what could be a simple and conclusive procedural area.

I respectfully dissent from the reversal.

      . “The Conflict Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts Under the 1972 Amendments,” 14 Hous.L.Rev. 287 (1977).

      . 48 N.J. 389, 226 A.2d 4 (1967).

      . Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973).

      . A. Larson, “The Conflicts Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts Under the 1972 Amendments”, 14 Houston L.Rev. 287, 291 (1977).

      . Poche reached the Supreme Court of the United States sub nom., Territo v. Poche, and the appeal was dismissed on October 3, 1977. - U.S. -, 98 S.Ct. 31, 54 L.Ed.2d 60.

      . The language from Gilmore may be applied, very aptly, to the cases cited by the majority. I am not persuaded by the majority’s reliance upon Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). As the Supreme Court noted: “[T]he maturity of avocados is a subject matter of the kind this Court has traditionally regarded as properly within the scope of state superintendence.” (373 U.S. 144, 83 S.Ct. 1218, 10 L.Ed.2d 258) The exact opposite is true w.hen we deal with admiralty and maritime jurisdiction.

      .See Larson, supra fn. 1. Professor Larson’s discussion of the “seven phases” of the constantly changing approaches to the problem is both concise and accurate.

      . Benefits under the acts of the several maritime states varied from Texas and Louisiana with $49 weekly benefits to $112.50 in Hawaii. House Report No. 92-1441, 1972 U.S.Code Cong. & Admin.News, pp. 4698, 4707.

      . In Gilmore & Black, The Law of Admiralty § 6-51, p. 354 (1957), considering dual but successive claims during the era of the “twilight zone”, the authors say: “Resort to a State Act after receipt of benefits under the Longshoremen’s Act may present problems of a different order. Larson [2 Larson, Workmen’s Compensation § 89.52 (1952)] suggests that in such a case the supplemental recovery should be denied on a ‘federal supremacy’ theory.”

      .Had plaintiff’s employer chosen not to become a subscriber under the Texas Act, plaintiff would have had a cause of action against his employer for negligence proximately causing his injury. Tex.Rev.Civ.Stat.Ann. art. 8306, § 1 (1967)\ yet, since he was an employee covered under the terms of LHWCA, his exclusive remedy for an injury sustained in the course of his employment was under the terms of the Federal Act. 33 U.S.C.A. § 905 (Supp. 1977).

      . Compare 33 U.S.C.A. § 906 (Supp.1977) with Tex.Rev.Civ.Stat.Ann. art. 8306, § 10, as modified by art. 8306, § 29 (Supp.1977), as amended by Texas Session Laws 1977, ch. 470, at 1221.

      . See 4 Larson, Workmen’s Compensation Law § 89.27, p. 16-180 (1976).

      . Lisenby, by this court and only a few years old, is not mentioned by the majority. The trial judge in Lisenby was our new associate, Justice Clayton, and this court was unanimous in upholding his dismissal for want of jurisdiction in the trial court.
      The application for the writ of error in Lisen-by was “refused, no reversible error.” An examination of the application on file in this court reveals that while divided into three points, only the single jurisdictional question was presented.
      Under such circumstances, I suggest the effect of the “n. r. e.” notation was to approve the holding — no jurisdiction in the trial court — and was an expression by the Supreme Court of its failure to be satisfied that our opinion “in all respects has correctly declared the law.” Tex.R.Civ.P. 483. See also F. Wilson, “Hints on Precedent Evaluation”, 24 Tex. B.J. 1037, 1090 (1961).

      . The Chappell court summarized its own holding in the case of City of Corpus Christi v. Herschbach, 536 S.W.2d 653, 657 (Tex.Civ.App. —Corpus Christi 1976, writ ref d n. r. e.): “[T]his Court has in the past rejected the argument that the receipt of benefits under two compensation statutes would result in a double recovery, contrary to the intention of the Texas Workmen’s Compensation Act.”

      . I construe the phrase “the entire amount awarded under L.H.W.C.A. shall be deducted from that award” to mean that Johnson’s recovery in the instant suit will be credited with the amount Johnson has received from Bethlehem under LHWCA for injuries received in the accident made the basis of this suit.
      If this construction is correct, then this holding is in conflict with the cases cited earlier. See discussion of Chappell, supra, and the authorities cited incident to fn. 11, supra.

      . Cf. Rockport Yacht & Supply Co., Inc. v. Hollis, 371 F. Supp. 1229, 1232 (S.D.Tex.1973), where the Court, without indication of the procedure, noted that any recovery under state law must be credited against the LHWCA award “so as to preclude a double recovery.”

      . Notice of injury or death must now be given within thirty days under the 1972 amendment. 33 U.S.C.A. § 912 (Supp.1977).


author: CADENA, Chief Justice.

text:
    Gerald Clifton OVERSTREET, Appellant, v. GIBSON PRODUCT CO., INC., OF DEL RIO, Appellee.
    No. 15697.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 26, 1977.
    Rehearing Denied Nov. 23, 1977.

      Broadus A. Spivey, Dicky Grigg, Spivey, Hazel, Scarborough & Grigg, Austin, for appellant.
    Smith, Davis, Rose, Finley § Hofmann, San Angelo, for appellee.
   CADENA, Chief Justice.

Plaintiff, Gerald Clifton Overstreet, appeals from a judgment n.o.v. denying him recovery for personal injuries suffered as the result of being bitten by a rattlesnake while he was shopping for groceries in a store operated by defendant, Gibson Product Co., Inc. of Del Rio, in the City of Del Rio.

The action of the trial court in disregarding the jury findings of causal negligence on the part of defendant can be sustained only if there is no evidence of probative force to support the jury findings. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Rule 301, Tex.R.Civ.P. In making this determination, we may consider only the evidence which, together with reasonable inferences which may be drawn from such evidence, supports the verdict. Jones v. Getty Oil Co., 458 S.W.2d 93 (Tex. Civ.App.—San Antonio), aff’d. sub nom., 470 S.W.2d 618 (Tex.1970).

The evidence, viewed in the light most favorable to plaintiff, may be fairly summarized as follows:

At about 8:00 P.M. on Saturday, October 12, 1974, plaintiff entered defendant’s department store for the purpose of buying some groceries. He proceeded to the grocery department and, after picking up a carton of milk, entered aisle 7 where, as he was reaching for a jar of jelly, he was struck in the leg by the snake. He did not see the snake until after it had struck him, and the snake did not “rattle” or give any other audible signal before it struck. After plaintiff cried for help, the snake was killed by defendant’s employees. At the time of the incident, no employee of defendant was in aisle 7, although two of defendant’s employees, including one who was primarily responsible for aisle 7, had been in the area a short time before plaintiff was injured.

The land adjacent to defendant’s store is overgrown with brush and shrubs and contains many rocks. Such land is not owned by defendant. Although there is no evidence that such adjacent land is infested with snakes, there is testimony to the effect that a person walking over such land would be on the lookout for snakes, since rattlesnakes are found “all around Del Rio.”

At one end of aisle 7, where plaintiff was struck by the snake, there is a warehouse area with a loading dock. One of the doors leading from the warehouse area to the loading dock had a crack at the bottom large enough to permit mice to enter the warehouse area, which is separated from the shopping area by doors. Defendant had experienced problems with mice on the premises, and during the period shortly preceding the incident in question, more than 40 mice had been killed inside the store. The presence of mice attracts snakes.

A retired game warden who had had much experience with rattlesnakes and had studied their habits and capacities testified that a snake as large as that which struck plaintiff could have crawled into the store through the crack in the door leading to the loading dock. He said that rattlesnakes have the ability to “flatten” their bodies, so that they normally can crawl through any opening which is large enough to allow their heads to pass through. According to this witness, the snake could have been in the building for as long as 30 days prior to the incident in question.

It is improbable that any person entering the store intentionally brought the snake onto the premises.

The jury found that defendant was guilty of causal negligence in that it (1) created or maintained a condition on its premises which attracted the snake onto such premises; (2) created or maintained a condition on its premises which made it possible for the snake to enter the store; and (3) failed to inspect the premises properly and adequately in order to discover the presence of the snake.

By his eighth point of error plaintiff asserts that the trial court erred in overruling his motion for judgment based on the theory of strict liability. Plaintiff’s theory is that defendant is strictly liable for plaintiff’s injury because the presence of the rattlesnake on defendant’s premises rendered the premises unsafe and such unsafe condition was a producing cause of plaintiff’s injury. This contention is without merit.

Plaintiff concedes that his injury was not produced by any defect in the merchandise offered for sale by defendant. His argument is that the “product” in this case consisted of defendant’s premises, which defendant opened to the public for the purpose of deriving a profit. This argument, if accepted, would render the owner or occupant strictly liable for all dangerous conditions on the premises which resulted in injury to his invitees. This is not the law, except in some situations, such as the case where the owner or occupant of land keeps or harbors a dangerous wild animal on his premises. H. E. Butt Grocery Co. v. Perez, 408 S.W.2d 576, 578, n.l (Tex.Civ.App.—San Antonio 1966, no writ). There is no evidence in this case that defendant kept or harbored the snake.

It is clear, then, that plaintiff’s cause of action is based on the alleged negligence of defendant, and this is the theory on which the case was submitted to the jury.

A possessor of land who holds it open to the public for entry for his business purposes is under a duty to exercise reasonable care to protect his business visitors from the acts of animals coming onto the premises. Restatement (Second) of Torts § 344 (1965). However, since the possessor is not an insurer of the safety of his business guests, he is under no duty to exercise such care until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur.

There is no evidence that defendant, or any of its employees, knew of the presence of the snake in the store. The question, then, is whether there is evidence to support the inference that defendant had reason to know that the snake was present or might reasonably be expected to be present, thus creating a danger for a person in plaintiff’s class.

We find nothing in the record to suggest that defendant knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons of the store.

The case of DeLuce v. Fort Wayne Hotel, 311 F.2d 853 (6th Cir. 1962), which involved injury to a hotel guest as a result of being bitten by a rat while on the hotel premises, is clearly distinguishable. In that case there was evidence of the presence of rats in the alley adjoining the hotel and on the sidewalk in front of the hotel. The court held that such evidence, despite the absence of evidence that a rat had ever been seen inside the hotel, created an affirmative duty on the part of the hotel operator to protect its paying guests from the foreseeable event that such rats might enter the hotel through its doors. There is no evidence in the case before us of the presence of snakes in any area reasonably near the defendant’s store. Viewed in the light most favorable to plaintiff, the evidence does no more than establish that snakes might have been present in the adjacent undeveloped lot. We find nothing in the record to support plaintiff’s statement that defendant knew of the presence of snakes in the immediate area.

In CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457 (1970), plaintiff, while selecting bananas in defendant’s store, was bitten by a “banana tarantula.” There was testimony to the effect that the manager of defendant’s produce department so identified the insect, adding that such insects had been present in the last shipment of bananas delivered to the store. Another employee of defendant testified that he had seen a similar insect among the bananas a day or two previous to plaintiff’s injury. 466 P.2d at 459. There is no such evidence in the case before us.

In Harvey v. Hammer, 42 Misc.2d 1096, 249 N.Y.S.2d 1012 (1964), the only question before the court was the sufficiency of the plaintiff’s complaint. Since the complaint alleged that defendant knew, or should have known, of the presence of rats in his apartment house, the court was clearly correct in holding that the complaint stated a cause of action. The opinion does not deal with the sufficiency of the evidence to sustain the allegations in the eomplaint.

In Williams v. Milner Hotels Co., 130 Conn. 507, 36 A.2d 20 (1944), there was evidence of the existence of “rat holes” in the guest room where plaintiff was bitten by a rat. The presence of rat holes clearly suggests to a reasonable mind the presence of rats.

The only rattlesnake case which has been called to our attention is Williams v. Gibbs, 123 Ga.App. 677, 182 S.E.2d 164 (1971), in which defendant was held not liable for injuries to a patron of his service station resulting from snake bite because, as the court explained, since there was no evidence that the owner had ever seen a snake on the premises, the land occupant was under no duty to protect against them.

In Gowen v. Willenborg, 366 S.W.2d 695 (Tex.Civ.App.—Houston 1963, writ ref’d n.r.e.), a boy, aged 11, climbed a billboard which defendant had erected on premises leased by defendant. As he neared the top of the structure he was stung by several wasps which had built a nest near the top of the billboard. The case involved a trespassing child and, while plaintiff concedes that the holding to the effect that defendant owed no duty to the child, he insists that the court held that the evidence raised a fact question as to whether or not the “dangerous condition would have been discovered on a reasonable inspection.” 366 S.W.2d at 697. However, it is clear that this observation, by way of dictum, was based on the fact that “the nest was large and complete.” Id.

An occupier of premises is liable for physical injury to his business guests or invitees resulting from a condition on the premises only if the following three conditions are met: (1) The occupant knows of, or by the exercise of reasonable care should have discovered, the condition and'should realize that it involves an unreasonable risk of harm to such guests. (2) He should expect that his patrons will not discover or realize the danger, or will fail to protect themselves against it. (3) He fails to exercise reasonable care to protect his business guests against such danger. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975); Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454-55; Tex. Restatement (Second) of Torts § 343 (1965).

It is not readily apparent that the rule applied in Rosas and Adam Dante differs markedly from the rule embodied in Restatement § 344. If we view the presence of the rattlesnake in the store as creating the danger, the question of liability depends on whether or not it may reasonably be inferred that the condition existed for such length of time as would give defendant a reasonable opportunity to discover it. Coffee v. F. W. Woolworth Co., 536 S.W.2d 539, 541 (Tex.1976). It may be, as plaintiff contends, that very little evidence is required in order to justify the necessary inference, but this does not mean that the inference may be drawn in the absence of supporting evidence.

The record furnishes no clue as to the length of time that the snake had been in the store prior to the. injury. Evidence that the snake could have been in the store for as long as 30 days is not evidence that it was there for any length of time.

Again, the cases relied on by plaintiff are distinguishable. In Fontenot v. Sears, Roebuck & Co., 399 S.W.2d 394 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.), there was evidence to the effect that the banana peel on which plaintiff slipped had been on the floor for at least 20 minutes prior to the accident. The holding in Furr’s, Inc. v. McCaslin, 335 S.W.2d 284 (Tex.Civ.App.—El Paso 1960, no writ), is based on the fact that the liquid substance on the floor which caused plaintiff to slip had begun to dry around the edges, thus indicating that it had been on the floor for some time. In Soto v. Biel Grocery Co., 462 S.W.2d 89 (Tex.Civ.App.—Corpus Christi 1970, no writ), the required inference was supported by the following testimony: (1) An employee of the store had thrown or dropped the green beanlike substance on the floor. (2) The substance was on the floor at the time that one of defendant’s employees was in the area. (3) The object on which plaintiff slipped was smashed, slippery, and old looking.

In the case before us there is no evidence such as that on which the courts relied to uphold the necessary inference in Fontenot, McCaslin, and Soto. No one saw the snake until after it had struck plaintiff. Nor does Mitchell v. Baker Hotel of Dallas, 528 S.W.2d 577 (Tex.1975), support plaintiff’s position, since in that case plaintiff testified that the floor was waxed and slippery (a condition which must have been known to defendant, unless we assume that some stranger waxed the floor without defendant’s knowledge), and there was also evidence that five other persons had slipped or fallen on the same floor prior to plaintiff’s accident. Nor do we have here, as was the case in Coffee, supra, a danger created by the presence of an object which must have been placed where it was by defendant’s employees.

The question here is not, as plaintiff suggests, whether the presence of a rattlesnake, measuring 4 feet in length and 8 inches in diameter, is as easily detectable as the presence of a banana peel. As in the case of the banana peel, the question is how long the snake had been there. The record suggests no clue which would aid in answering the question.

We consider next the finding that defendant had created or maintained on its premises a condition that made the premises attractive to snakes. This finding is clearly based on the fact that it is indisputably established that there were mice in defendant’s store and that snakes consider mice a delicacy. The evidence, at the very least, supports the conclusion that defendant’s manager knew that snakes enjoy eating mice. It may even be safely assumed that this is a matter of common knowledge.

But the presence of mice on premises does not, of itself, impose on the occupant a duty to guard against snakes. The ordinary person does not launch a snake hunt every time he sees mice. His precautionary measures would probably be limited to the setting of mouse traps. Only if he knew, or had reason to believe, that there are snakes in the area and that there is danger that the snakes will enter a building in which people are normally present in order to feed on mice will he take precautions against snakes. There is no evidence indicating that snakes will enter a building in search of mice, nor can it be said that man’s experience has been such as to induce a reasonable belief that they will.

The same may be said of the crack in the loading dock door. There is no basis for holding an ordinary prudent man has any reason to believe that a dangerous wild animal will enter a building through a crack in a door or even through an open door, particularly when there is no evidence of the presence of wild animals in the area.

The trial court did not err in rendering judgment n. o. v.

The judgment is affirmed.