Indian Territory Illuminating Oil Co. v. Rainwater, 1988.

• Citation: 140 S.W.2d 491
• Decision Date: 08 March 1940
• Docket Number: No. 1988.,1988.
• Parties: INDIAN TERRITORY ILLUMINATING OIL CO. v. RAINWATER.
• Court: Court of Appeals of Texas

Page 491

140 S.W.2d 491

INDIAN TERRITORY ILLUMINATING OIL CO. v. RAINWATER.

No. 1988.

Court of Civil Appeals of Texas. Eastland.

March 8, 1940.

Appellee's Motion for Rehearing Granted April 12, 1940.

Appellant's Motion for Rehearing Granted May 3, 1940.

Rehearing Denied May 24, 1940.

Appeal from Jones County Court; Omar T. Burleson, Judge.

Action by W. O. Rainwater against the Indian Territory Illuminating Oil Company for damages alleged to have resulted from defendant's setting off of explosives on adjoining premises causing vibration which broke walls of plaintiff's cistern. From judgment for plaintiff for $100, defendant appeals.

Judgment reversed, and cause remanded.

Sayles & Sayles, of Abilene, for appellant.

Gilbert Smith, of Anson, for appellee.

GRISSOM, Justice.

W. O. Rainwater sued the Indian Territory Illuminating Oil Company in a Justice Court of Jones County for $190 damages. In substance, Rainwater alleged the company's seismograph crew dug a hole about 46 feet deep on a tract of land (where it had a right to be), and about 150 feet from Rainwater's cistern located upon the adjoining premises, and set off a heavy charge of explosives in the hole causing a vibration which broke the plastered walls of the cistern, resulting in the loss of the water stored in the cistern and requiring its repair. Judgment in the Justice Court was for plaintiff against defendant for $190, and the company appealed to the County Court. The County Court judgment was for plaintiff against defendant for $100. The company has appealed.

Appellee, Rainwater, questions the jurisdiction of this court because a transcript from the Justice Court to the County Court is not in the transcript on appeal. The transcript shows a judgment for plaintiff against defendant for $190, dated May 21, 1938, signed by the justice and filed in the County Court of Jones County June 9th; an appeal bond approved and filed by the justice May 27th and filed in the County Court June 9th, and defendant's original answer, filed by the justice May 21st and filed in the County Court on June 9th. We are of the opinion the jurisdiction of the County Court, and, therefore, the jurisdiction of this court, sufficiently appears. Clonts v. Johnson, 116 Tex. 489, 497, 294 S.W. 844.

Appellant contends that since there was no actual physical trespass by the defendant and its action was not unlawful, appellee, having failed to prove negligence of the defendant in discharging the explosives, failed to prove a cause of action against defendant.

The cause was submitted to a jury on special issues. There was no finding of negligence. Negligence was certainly not shown as a matter of law, and we are of the opinion that the evidence was insufficient to have authorized a finding of negligence by the jury had the issue been submitted. Therefore, plaintiff failed to make out his case. It is incumbent upon plaintiff to allege and prove negligence in cases of this character. In Summers Oil and Gas, Permanent Ed., Vol. 4, § 661, p. 58, et seq., there is a most interesting article on the subject. However, we think it has been definitely determined in Texas that in this character of cases allegation and proof of negligence are essential.

In Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 224, our Supreme Court, speaking through Chief Justice Cureton, said: "The storage and use of explosives is clearly within the rule of absolute liability laid down in Rylands v. Fletcher; but, as to these, we have also changed from the common-law rule, and predicate liability upon negligence, in the absence of controlling statutes or facts so obvious as to constitute a nuisance as a matter of law."

In Comanche Duke Oil Co. v. Texas P. C. & O. Co., Tex.Com.App., 298 S.W. 554, 560, Judge Nickels, in discussing a case wherein suit was brought by the owner of a producing oil well for injuries caused by the discharge of explosives in drilling a well on an adjoining tract of land, causing infiltration of water into the producing well, said: "If the purpose be lawful, physical trespass absent, primary use reasonable, and manner of that use duly careful, consequences are damnum absque; otherwise, injury within proximate causation is redressable. This would appear to have support in `blasting' and `explosion' cases (see Ft. Worth & D. C. R. Co. v. Beauchamp, 95 Tex. 496, 68 S.W. 502, 58 L.R.A. 716, 93 Am.St.Rep. 864; 11 R.C.L. 673, 674; 19 Cyc. 7, 8), in which liability for injuries produced through vibration and shock alone is made to turn upon use or omission of due care in starting the vibrative or concussive waves, and in `fire' cases (see Seale v. Gulf C. & S. F. R. Co., 65 Tex. 274, 57 Am.St.Rep. 602), upon caution observed or forgotten in the act which started or which failed to halt the elements in its journey to neighboring premises." (Italics ours.)

Also see Cosden Oil Co. v. Sides, Tex. Civ.App., 35 S.W.2d 815, 817; Ft. Worth & D. C. Ry. Co. v. Beauchamp, 95 Tex. 496, 68 S.W. 502, 58 L.R.A. 716, 93 Am. St.Rep. 864; City of Dallas v. Newberg, Tex.Civ.App., 116 S.W.2d 476, writ dismissed; Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125; Missouri Iron & Metal Co. v. Cartwright, Tex.Civ.App., 207 S.W. 397; 11 R.C.L. 674.

The only evidence on the question of care used in discharging the explosives, and the reasonableness of the amount discharged, is found in the testimony of defendant's witnesses, none of whom testified to facts (so far as has been pointed out) which would authorize a finding of negligence Regardless of what the correct interpretation of the rule that the testimony of interested parties, under certain circumstances, raises a question for the jury may be since the decision of Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, such defensive testimony alone certainly does not make negligence vel non a question for the decision of the jury.

"In other words, where a plaintiff has the burden of proof on an issue and fails to make sufficient proof thereon to raise a question of fact for the jury, wholly defensive testimony relative thereto by the defendant, though uncorroborated, does not make an issue for the jury." Dixon v. Cargill, Tex.Civ.App., 104 S.W.2d 101, 103, writ refused.

The situation relative to plaintiff's pleadings is not discussed for the reason that such deficiencies therein, if any, (in the absence of a contrary showing) will be presumed to have been supplied by oral pleadings. Hart v. Wilson, Tex.Civ.App., 53 S.W.2d 1029; Heidenheimer Strassburger & Co. v. Houston & T. C. Ry. Co., Tex.Civ.App., 197 S.W. 886.

Since plaintiff's judgment in the County Court was for a smaller amount than in the Justice Court, and the record failing to show a reason for the action of the court in taxing the County Court costs against defendant, such action was error. Arts. 2065, 2066, 2432, Rev.St.1925; Norwood v. Taylor County, Tex.Civ.App., 93 S.W.2d 573, 575, writ dismissed.

Although the question as to the sufficiency of the qualification of an expert witness rests largely in the discretion of the trial court, we are of the opinion that the witness Greer did not sufficiently qualify as an expert on the question of vibrations caused by explosions and their effect to justify his expression of an opinion as to the effect of the explosion in question. Neither did the witness White so qualify. Had White additionally testified to a similarity in the kind and amount of explosives used at the two places mentioned in his testimony, such testimony might have been admissible under the theory recognized in Southern Gas & Gasoline Co. v. Adams & Peters, Tex.Civ.App., 169 S.W. 1143, 1148, writ refused. Also see, Texas & P. Ry. Co. v. Cauble, Tex.Civ.App., 168 S.W. 369; Texas & P. Ry. Co. v. Good, Tex.Civ.App., 151 S.W. 617, 619. However, what defendant's said witness would have testified to had he been permitted is not shown. Cunningham v. Austin & N. W. Ry. Co., 88 Tex. 534, 31 S.W 629; Hartford Accident & Indemnity Co. v. Harris, Tex.Civ.App., 138 S.W.2d 277, decided by this court February 23, 1940.

Under the situation disclosed by this record, we are not authorized to render judgment. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Reed v. Benjamin State Bank, Tex.Civ.App., 114 S.W.2d 365, 372.

The judgment is reversed and the cause remanded.

On Appellee's Motion for Rehearing.

In response to appellee's motion for rehearing, based solely on our decision that the record of the proceedings in the Justice Court, filed in the County Court and appearing in the transcript on appeal, was sufficient to show the jurisdiction of the County Court, we have carefully examined the authorities on that question.

The transcript filed in this court on appeal from the County Court does not contain a transcript from...