(dissenting in part).
I am not in accord with the majority opinion in overruling the motion for rehearing of the Dallas County Flood Control District for reasons hereinafter briefly noted.
The Dallas County Flood Control District, in its motion for rehearing, raises two points: 1 is to the effect that we erred in overruling its plea of privilege in holding that it had committed a trespass in Collin County sufficient to sustain venue there; and 2 is to the effect that we erred in holding that the act of spraying herbicide, committed in Dallas County by it (which resulted in damages to appellees’ crops in Collin County) constituted a trespass in Collin County for purposes of venue within the meaning of subdivision 9 of Art. 1995, Vernon’s Ann.Civ.Stats. I am in accord with these views.
The majority opinion holds in effect that the Dallas County Flood Control District was guilty of active negligence in spraying 2-4 — D herbicide on the floodway in Dallas County because such herbicide • damaged appellees’ cotton in Collin County; and that such conduct was in effect a trespass in Collin County. I cannot agree with this contention.
*341It is my view that neither crime, trespass nor active negligence is shown by this record. The pleadings and the evidence show that the lands of appellees are in Collin County, where the suit is brought, and that all of the defendants reside in Dallas County, and that defendant Districts are located wholly within Dallas County and none in Collin County, and that all of the operations carried on by the Flood Control District were carried on in the District in Dallas County. Evidence was tendered to the effect that the Flood Control District used a ground mist type sprayer and an aeroplane, in order to spray the 2-4 — D on the weeds and willow trees. It is true that the plaintiffs alleged that the defendants knew that the 2-4-D, when sprayed, would get into the air currents and would drift for many miles, hut I find no such proof in the record. As I understand plaintiffs’ contention, it is that defendants carried on spraying operations in Dallas County and that the chemical they used in the operation got into the air currents and drifted as far as Collin County, where it settled on plaintiffs’ cotton crops. Under these facts, plaintiffs contend that the Dallas County Flood Control District committed a trespass in Collin County, and they rely on subdivision 9 of Art. 1995, supra, to sustain them. My view of the record is that the evidence wholly fails to prove that a crime or offense or trespass was committed in Collin County under the provisions of said subsection aforesaid, and under the construction placed thereon by our Supreme Court and by our Courts of Civil Appeals.
In appellant’s motion for rehearing I find substantially the following statement: First, in regard to the case authorities cited by the court, there are three: Hamilton v. Jenkins, Tex.Civ.App., 235 S.W.2d 195 (where nonresident defendants set fire to brush on their land and the heat and smoke therefrom damaged adjacent landowners’ crops) ; Baker v. Knight, Tex.Civ.App., 205 S.W.2d 65 (where cyanide gas used to fumigate cafe by nonresident seeped into another portion of building and killed dogs kept there by veterinarian) ; and Lusk v. Onstott, Tex.Civ.App., 161 S.W.2d 819 (whei.e nonresident defendant cut ditch on public road releasing water which damaged adjacent land.)
The above cases appear to he distinguishable from the one at bar in that each of the cases a nonresident defendant committed a positive act of trespass in the county in which venue was sought to be maintained. In the Jenkins case, supra, suit was brought in Hidalgo County and the brush . was stacked and set on fire in Hidalgo County. In the Knight case the cyanide gas was discharged in Johnson County where suit was brought. In. the Onstott case the ditch was cut in Crosby County and suit was brought in such county. In each of the foregoing cases relied upon-in the majority opinion, the requirements of subdivision 9 of Art. 1995, supra., were met because the acts constituting a trespass -were committed in the county where the suit was brought. In the case, here, all acts, if any committed by appellant, were committed without dispute in Dallas County and not elsewhere, I am in accord with the above view.
Our Supreme Court in Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062, point page 1065, made this statement of- the rule as applied to subdivision 9 of the Venue Statute aforesaid: “‘It is well settled that a trespass in the meaning and intent of this statute is not shown by allegation or proof of a nonfeasance or mere negligent omission to perform a duty. To constitute a trespass under this statute there must be an affirmative act of negligence, not necessarily súch affirmative act as would be inherently unlawful and constitute a crime or offense against the public, but an affirmative act as distinguished from an omission of duty * * ⅜.’ ” -
This Court has, on numerous occasions, considered the exact question which I believe is here before us, and I think the statement made by our Supreme Court as to the interpretation to be given to subdivision 9 as contained in Meredith v. McClendon, supra, has been followed by this Court in Brooks v. Hornbeck, Tex.Civ.App., 274 S.W. 162, points 1 and 2, at page 163; Waco Cotton Oil Mill v. Walker, Tex.Civ.App., *342103 S.W.2d 1071 (no writ history), and Odom v. Parker, Tex.Civ.App., 173 S.W.2d 328 (no writ history). Our Supreme Court again reviewed the decisions of our Supreme Court and the Courts of Civil Appeals as they relate to subdivision 9 of our Venue Statute in Chiles v. Goswick, Tex.Civ.App., 225 S.W.2d 407, and our Supreme Court did not change the statement of the rule as made in Meredith v. McClendon, supra. The opinion of our Supreme Court in Chiles v. Goswick, supra, is, I believe, the last expression of our Supreme Court dealing specifically with the meaning of subdivision 9 of our Vehue Statute, and this opinion has clarity, and I think it is applicable and necessarily controlling here. See also City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466; also Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Wiese v. Becker, Tex.Civ.App., 294 S.W. 991 (no writ history).
As I understand the record, there is an absence of proof to the effect that the acts of the Dallas County Flood Control District in the actual spraying was in violation of any law or was done with any intent to injure anyone, and if there is any negligent conduct on the part of such District in the actual spraying, I think1 that such negligence, if any is shown, is an act of omission of duty as distinguished from active negligence, and under no consideration could a court or jury say is was a wrongful and unlawful act on the part of such District, and that the District was guilty of active negligence in Collin County.
In appellants’ brief I find this statement:
“There was no evidence that Halford knew that the spray could get into the air currents and drift for some twenty miles and settle on cotton plants in Collin County. There was no evidence that he knew that the equipment that was used was unsafe or that the defendant was negligent in any respect in the manner in which the equipment was used. There was no evidence that the defendant violated any of the provisions of the Texas Herbicide Law (Art. 135b-3, Rev.Civ.Stats.) or that defendant violated any of the regulations promulgated by the Commissioner of Agriculture under such law.”
I think the foregoing is a correct statement. My view of the record here made is that if the testimony tendered any act of negligence, it is that of omission as distinguished from an act of commission, as this Court pointed out in Odom v. Parker, supra.
In appellant’s motion for rehearing we find this statement:
“ * * * that if negligence has been shown in this case, such has not been shown by proof of active negligent acts committed by the appellant but, at most, through the application of the doctrine of res ipsa loquitur. Certainly that is the only theory which could be arrived at on the basis of the testimony of the witness Dudley. The evidence was that appellant sprayed 2-4-D within the confines of its floodway and that shortly thereafter appellees’ cotton crops were damaged. Res Ipsa Loquitur is a rule of evidence, and where the particular thing causing the injury has been shown to be under the management’ of the defendant, or his servants, and the accident as such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care. Emmons v. Texas & Pacific Railroad Co., [Tex.] Civ.App., 149 S.W.2d 167, 171; 37 Words & Phrases, [Res Ipsa Loquitur] 482, 30 Tex.Jur. 802. The question might then be asked, can the allegation and proof that appellees were injured by herbicide under the exclusive control of appellants in another county make a case of trespass within the contemplation of the 9th exception of the Venue Act. The cases hold that it does not. Odom v. Parker, [Tex.Civ.App.] 173 S.W.2d 328, 331; Amberson v. Anderson, [Tex.] Civ.App., 43 S.W.2d 120.”
I- am in accord with this view.
In Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, opinion by Justice Smedley of the *343Commission of Appeals, opinion adopted by the Supreme Court, we have what I believe to be one ■ of the clearest opinions of our Supreme Court concerning the meaning of subdivision 9 -of the Venue Statute aforesaid. It is my view that the majority opinion here overruling the Dallas County Flood Control District’s motion for rehearing to be sued in Dallas County is in irreconcilable conflict with the decision of our Supreme Court in Lyle v. Waddle, supra, and Chiles v. Goswick, supra, and the other cases here cited. See also Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, pt. 1, at page 972.