Horton B. DOBSON et ux., Petitioners, v. DON JANUARY ROOFING CO., Inc., Respondent, 394 S.W.2d 790

PER CURIAM. The opinion of the Court of Civil Appeals is reported in 392 S.W.2d 153. Horton B. Dobson and wife seek by their suit to recover damages from Don January Roofing Co., Inc. Their suit grows out of damage to their residence from a fire alleged to have been caused by the negligence of defendant’s employee in allowing hot ashes to fall from a cigarette he was smoking onto the roof of plaintiffs’ house which' he was repairing. Defendant filed a motion for

summary judgment to which was attached an affidavit of the employee. The plaintiffs filed a reply to the motion for

summary judgment to which they attached an affidavit made by Mrs. Dobson. The trial court also had before it the depositions of Mr. and Mrs. Dobson.

Summary judgment was rendered for the defendant. The Court of Civil Appeals affirmed the trial court’s judgment on the ground that plaintiffs’ petition did not state a cause of action. The stated basis for the holding was that the defendant could not be charged with liability for the negligence of its servant in the respect indicated since the smoking of the cigarette by the employee while working was not in the course of his employment. We refuse writ of error, no reversible error. Rule 483, Texas Rules of Civil Procedure. It is our opinion that

summary judgment was properly granted in favor of the defendant on the basis of the proofs made by the affidavits and depositions. Accordingly, our refusal of writ of error is not to be regarded as an approval of the holding made the basis of the Court of Civil Appeals’ judgment of affirmance.