Mobile, Inc. v. Cone, 491

• Decision Date: 09 July 1970
• Docket Number: No. 491,491
• Parties: MOBILE, INC., d/b/a Mobile Well Service, Appellant, v. Johnson CONE, Appellee.
• Court: Texas Court of Appeals

Page 175

457 S.W.2d 175

MOBILE, INC., d/b/a Mobile Well Service, Appellant, v. Johnson CONE, Appellee.

No. 491.

Court of Civil Appeals of Texas,

Tyler.

July 9, 1970.

Rehearing Denied Aug. 13, 1970.

Ramey, Brelsford, Flock, Devereux & Hutchins, Jack W. Flock, Mike A. Hatchell, Tyler, for appellant.

John B. McDonald, A. D. Henderson, Palestine, for appellee.

DUNAGAN, Chief Justice.

The appellee Johnson Cone brought this suit for the recovery of damages for personal injuries sustained by him as a result of certain work-over operations on an oil well operated by Texas General Producing Company (of which Cone was a stockholder) near Austonio, Texas. Appellee was injured by a blast of gas from the casing when a red flexible hose between the casing and the flow line on the well blew off under pressure. Judgment was entered upon a jury verdict in favor of appellee in the sum of approximately $13,500.00.

The jury answered only one of two sets of primary negligence issues submitted to them, finding that an employee of appellant attached the red flexible hose which blew off its fittings to the well head and that such was negligence which proximately caused the accident in question. Appellant attacks the submission of these special issues with 'no evidence' points and also attacks the jury findings with 'insufficient evidence' points. Appellant also presents an additional point involving newly discovered evidence.

The flexible hose was attached to the well head in an attempt to bleed off the pressure preparatory to appellant washing out the well . Both sides testified that the use of such a hose, being of a low pressure type, was unsafe for this operation, but no witness could say who actually attached the hose to the well head. Thus, this vital issue must be established by circumstantial evidence. In regard to the proof of facts by circumstantial evidence, this court has made the following statement:

'To establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing. At all events they must not be equally consistent with the nonexistence of the ultimate fact. * * *' Bledsoe v. Yarborough, 422 S.W.2d 222, 227 (Tex.Civ.App., Tyler, 1967, n.w.h.), and cases therein cited.

In passing upon appellant's 'no evidence' points, we must consider only the evidence that would tend to support the jury finding and disregard all evidence to the contrary. Thoreson v. Thompson, 431 S .W.2d 341 (Tex.Sup., 1968); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup ., 1965); Lindley v. Lindley, 384 S.W.2d 676 (Tex.Sup., 1964). The circumstances relied upon by appellee to establish the ultimate fact of who attached the hose to the well head are as follows: Approximately one week prior to the date of the accident appellant was hired to wash out this same well and at that time appellant did bleed off the pressure. The day before the accident, appellant having been rehired to again wash out this well, appellee's...