author: DENTON, Chief Justice.

text:
    Harrison Eugene SCHOENHALS et al., Appellants, v. Rosa A. SCHOENHALS, Appellee.
    No. 7233.
    Court of Civil Appeals of Texas. Amarillo.
    March 4, 1963.
    Rehearing Denied April 1, 1963.

      Crow & Crow, Canadian, for appellants.
    Roy Sansing, Higgins, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit involves a contest of the will of Harry F. Schoenhals, deceased. Mr. Schoenhals died on May IS, 1959, and his will was probated on June 1, 1959. The suit which originated this controversy was filed on May 17, 1961, in the County Court of Lipscomb County by Carlos Garner Schoenhals, a son of the deceased. That suit was filed against Harrison Eugene Schoenhals, another son of the deceased and independent executor of the estate. This suit, in the nature of a contest, sought to delete the following phrase from the will as probated: “Subject to any indebtedness existing against the land at the time of my death”. This clause referred to one and one-fourths sections of land devised to the contestant and his brother, Harrison Eugene Schoenhals, share and share alike. The contest was based on the allegation this disputed clause was inserted in the will after its execution by the testator. On May 29, 1961, the County Judge entered a judgment cancelling and deleting the clause complained of.

On June 28, 1961, appellee filed an instrument designated “Bill of Review” Service was had on both the executor and Carlos Garner Schoenhals. This Bill of Review was considered by the County Judge on September 22, 1961, and on that date he entered judgment setting aside the court’s judgment of May 29, 1961. It is from the September judgment that the appellants excepted and gave notice of appeal to the District Court of Lipscomb County. Based on the jury verdict, the District Court entered judgment sustaining the County Court’s judgment of September 22, 1961. Appellants have duly perfected their appeal from that judgment.

By counterpoint, appellee makes the contention the District Court erred in failing to dismiss appellants’ appeal from the Courty Court for want of jurisdiction. Appellants timely entered into an appeal bond which was set by the court, approved and filed on October 2, 1961. Although the clerk’s records themselves do not reflect when the transcript was actually filed with the clerk, the District Court’s civil docket shows the date of filing was December 29, 1961. Rule 334, Texas Rules of Civil Procedure, requires the county clerk to immediately transmit the original papers of the probate proceeding to the clerk of the District Court. The rule then requires the district clerk to immediately file and docket the cause. This purported transaction took place prior to September 1, 1962, when Rules 332, 333 and 334, T.R.C.P., were rewritten and rearranged. We are, therefore, governed by the above-named rules as they were before the effective date of their change. It is undisputed appellants complied with Rule 332 when they entered into an appeal bond which was approved and filed with the county clerk. Upon the appeal bond being filed, Rule 334 required the county clerk to take the action mentioned above. It is then the duty of the district clerk to perform his duties as stated. However, in the instant case, the clerk of the County Court and of the District Court of Lipscomb County are one and the same person, using the same office facilities. Under these circumstances, and where the appeal bond was timely filed and approved, and where the complete record was filed and in the official possession of the clerk of both courts, we cannot say the appeal from the County Court to the District Court was not properly perfected under the applicable rules then in effect.

Although the evidence in this case was relatively short and to a great extent undisputed, the record is made confusing and complex by the various motions and coun-termotions filed by both parties in the County Court and District Court. There was an apparent difference of opinion by counsel throughout the trial as to what basic issues were involved. As we understand it, the primary question to be determined is whether or not there is any evidence or sufficient evidence to support the jury finding that the interlineation was made before the will was executed. In order to decide this question, we must pass on the validity of appellee’s Bill of Review; the admissibility of testimony of Mrs. Clara Sansing and Victor Schoenhals; and whether or not the trial court erred in refusing to dismiss counsel for appellee and strike all pleadings filed by said counsel.

In addition to overruling both parties’ motion for summary judgment, the trial court overruled appellee’s motion to dismiss appellants’ appeal to the District Court; overruled appellants’ motion to dismiss counsel for appellee, and the motion to strike appellee’s pleadings. If these rulings of the trial court were correct, we then come to the basic question of whether or not the jury verdict is supported by the evidence. The crux of the case is whether •or not the will was executed in the form in which it was originally probated on June 1, 1959. Both the suit to contest the will filed May 17, 1961, and appellee’s Bill of Review, which attacked the judgment sustaining the contest, go to this basic question. The County Court’s judgment of September 22, 1961, set aside the court’s prior judgment which deleted the clause in controversy. The September judgment is the basis of the appeal to the District Court, and it is fundamental the latter court shall try the case de novo.

Appellants’ Bill of Review was not equitable in nature but statutory, and is provided for by Section 31 of the Probate Code, V.A.T.S. In our opinion it meets the requirements of that article. A statutory bill of review is not subject to the limitations or requirements of an equitable review. Janson v. Jacobs, 44 Tex. 573, Supreme Court. The primary basis of the Bill of Review was that appellee, Rosa A. Schoenhals, had a substantial interest in the estate of the deceased, and that she was not made a party to the contest filed by Carlos Garner Schoenhals. As residuary ■devisee, Rosa A. Schoenhals’ estate would be vitally affected by the deletion of the •controversial clause. The extent of her • estate depended on whether or not appellant .and his brother took the one and one-fourths sections of land subject to the $7,000 to $8,000 indebtedness, which the record shows existed at the time of the testator’s death. As a party with a real and present interest in the judgment under question, .appellee was a necessary party to that suit. Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260. Although the petition filed on May 17, 1961, was designated “Contest of Carlos •Garner Schoenhals” it was, in effect, a bill of review and as such was a direct attack on the judgment admitting the will to probate. Therefore, all persons who might be in any way affected by its result must be before the court. Hannon v. Henson, (Com.App.), 15 S.W.2d 579. Pure Oil Company v. Reece, 124 Tex. 476, 78 S.W.2d 932, (Opinion Adopted). We are of the opinion and so hold appellee’s Bill of Review was properly allowed.

Subsequent to perfecting their appeal to the District Court, appellants filed a motion to dismiss counsel for appellee and to strike all pleadings filed by them. This motion was based on allegations that counsel, who had written and witnessed the will in controversy, had filed the will for probate, and subsequently represented appellee in the proceedings outlined above.

In the case at bar the District Court acted as a court of appellate probate jurisdiction and, as such, the District Court can exercise only appellate jurisdiction. Cogley v. Welch, (Com.App.), 34 S.W.2d 849. First State Bank of Bellevue v. Gaines, 121 Tex. 559, 50 S.W.2d 774. It is equally well settled that where an appeal is made from the county court to the district court involving proceedings in a bill of review, the jurisdiction of the district court, being appellate in nature, the issues are limited in the latter court to the issues properly raised in the county court. Constitution, Article V, Section 8, Vernon’s Ann.St. Jones v. Sun Oil Company, 137 Tex. 353, 153 S.W.2d 571. Although this issue was not raised until the case reached the District Court, we do not think it advisable to dismiss appellants’ point of error on this narrow ground.

One of appellee’s attorneys, Roy Sansing, had represented the deceased for many years, and at his request prepared the will in controversy. Immediately after the funeral Mr. Sansing had conferences with the deceased’s heirs, including all parties to this suit. The will was taken from the attorney’s safe and was read to all those present. Photostatic copies were then made and all interested parties were given a copy. From the questions asked and the general discussion had at that meeting, Mr. Sansing assumed he was to probate the will. Within a few days, he filed the petition to probate the will. After this was done, Mr. Sansing received two letters from the executor. One dated May 20, 1959, asked Mr. Sansing to delay the probate until he could confer personally with the attorney; and the other letter dated June 6, 1959, asked him not to proceed with the probate. However, on June 3, 1959, which was after the first letter and prior to the second letter, the appellant executed his oath as executor before Mr. Sansing as a Notary Public. On July 22, 1959, Mr. Sansing requested and was granted permission of the County Judge to withdraw from the case as attorney for the estate. The next pleading filed by Mr. Sansing, in corroboration with the associating firm of record here, was the Bill of Review filed June 28, 1961. As previously stated, this pleading sought to set aside the County Court’s judgment of May 29, 1961, and in effect sought to uphold the will as originally probated.

This Court is not unmindful of the strict requirements placed on attorneys by our Canons of Ethics and State Bar rules, Vernon’s Ann.Civ.St. following article 320a-l, and certainly these rules of conduct should be strictly adhered to. However, under all the circumstances, and when viewed in the light of the jury finding that the admitted interlineation was made before the will was executed, we cannot say Mr. Sansing’s conduct was such as to justify the trial court ordering his dismissal from the case. The record bears out the fact Mr. Sansing originally represented the estate in good faith; that after the will was probated on June 1, 1959, the executor took his oath before this same attorney, and that after a definite request was made by the executor, Mr. Sansing withdrew without prejudice to represent others in the suit. It was some twenty-three and one-half months later that appellant’s brother filed the contest, and it is undisputed that both of the brothers had the same interest in the estate. Of course, the problem here arose out of the fact the will contained the interlineation. However, the jury as judges of the credibility of the witnesses, accepted the explanation of Mrs. Sansing, and found the interlineation was made prior to the execution of the will. If this be so, and there is no evidence to the contrary, and when it is viewed under all the circumstances of the case, we conclude the trial court did not err in failing to dismiss counsel for the appellee.

Appellants’ objection to the admission of testimony of Mrs. Sansing, the wife and secretary of one of appellee’s attorneys, is based on the same general grounds advanced for the dismissal of the attorney. As the one who typed the will and served as one of the witnesses to its execution, she testified the interlineation was inserted after the will had been typed; but before the deceased actually signed it, and that the interlineation was made at the specific request of the testator. Appellants’ contest of the will brought into issue the question of the interlineation. The one who actually prepared the instrument was justified in giving testimony on this issue. In re Hardwicks’ Estate, (Tex.Civ.App.), 278 S.W.2d 258, (Refused, NRE). Hudson v. Fuson, (Civ.App.), 15 S.W.2d 166, (NWTI). For this reason together with our ruling concerning the motion to dismiss counsel, we are of the -opinion this point of error is without merit.

The deceased’s brother, Victor Schoenhals, was permitted to testify over appellants’ objection concerning a statement made by the deceased to the witness after the will had been executed. The witness testified the deceased, Harry F. Schoenhals, made the following statement: “I made the land to the boys and the personal property to Rosa. I made the land to the boys and the land debts go with the boys, go with the land, but I could live ten or fifteen years, and * * Although declarations of a testator standing alone are not sufficient to establish the execution or the contents of an alleged will, such declarations made before or after the execution of the will are admissible in corroboration of the main fact sought to be proved. Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.2d 682, 79 A.L.R. 1488; Bennett v. Jackson, (Tex.Civ.App.), 172 S.W.2d 395, (Refused for want of Merit.) ; In re Williams’ Estate, (Tex.Civ.App.), 135 S.W.2d 1078; Miller v. Miller, (Tex. Civ.App.), 285 S.W.2d 373. Texas Law of Evidence, Second Edition, Section 895. The main fact sought to be established here is that the interlineation was inserted in the will prior to its execution. The statement attributed to the deceased was admissible to show the will as probated carried out the intentions of the testator.

Appellants’ last two points of error complain that the verdict is not supported by any evidence, and the verdict is against the great weight and preponderance of the evidence. Except for the will itself and the photostatic copies thereof, along with the testimony of a handwriting expert that the clause was an interlineation, there was no evidence in the record concerning the interlineation except the testimony of Mrs. Sansing and Victor Schoenhals discussed above. It is admitted by the appellee that the clause is an interlineation. Once again the basic question is when was the inter-lineation inserted in the will. Mrs. San-sing positively testified that the insertion was made prior to the execution of the will, and the testimony of Victor Schoenhals corroborated that testimony. The handwriting expert could not and made no attempt to testify as to when it was made. Appellants rely on two grounds to support this evidentiary contention: The testimony of Mrs. Sansing and Victor Schoenhals is inadmissible; and the photostatic copies of the will contained the word “and” immediately preceding the clause in question, while the word “and” had been erased from the original will. Mrs. Sansing explained the presence of the word in the photostatic copies by testifying she must have neglected to erase this word from the copies hut did so on the original. It is not contended that the presence of the word “and” would alter the meaning of the will, but only that its presence on the photostatic copies and its absence on the original is evidence of an alteration. After reviewing this record, we are of the opinion, and so hold, the verdict of the jury is amply supported by the evidence.

After carefully reviewing the entire record, we are of the opinion it reflects no reversible error. The judgment of the trial court is accordingly affirmed.

Affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. J. O. JACKSON, Appellee.
    No. 4086.
    Court of Civil Appeals of Texas. Waco.
    March 21, 1963.
    Rehearing Denied April 18, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Fulmer, Fairchild & Badders, Nacog-doches, for appellee.
   McDONALD, Chief Justice.

This is a compensation case. Plaintiff alleged he was thrown to the ground when a pipe rack fell on him from a truck, and that he sustained injuries to his back, hip, leg and foot. Trial was to a jury which, in answer to issues, found:

1) Plaintiff sustained injury to his back on May 7, 1960.
2) As a result of such injury to his back, plaintiff sustained total incapacity.
3) Such total incapacity began on May 7, 1960.
4) Such total incapacity will be permanent.
5) Plaintiff did not sustain partial incapacity.
9)Plaintiff worked in the same employment for at least 210 days preceding injury.
10) Plaintiff’s daily average wage was $17.37 per day.
11) Defendant did not fail to furnish medical aid following his injury.
12) Dr. Brail’s aid was reasonably required.
13) Reasonable charge for same is $242.50.
14) Dr. Sigler’s aid was reasonably required.
15) Reasonable charge for same is $285.00.
16) St. Paul’s Hospital services were reasonably required.
17) Reasonable charge for same is $400.00.
18) Plaintiff’s incapacity is not limited solely to the right foot.
19) Plaintiff’s incapacity is not limited to the right leg at or below the right knee.
20) Plaintiff’s incapacity is not limited solely to the right leg.
21) Plaintiff’s incapacity is not caused solely by a circulatory condition, existing wholly independent of and not aggravated by his injury.
22) Plaintiff’s incapacity is not caused solely by arthritis, existing wholly independent of and not aggravated by the injury.
23) Plaintiff’s incapacity is not caused solely by a chronic prostatitis, existing wholly independent of and not aggravated by the injury.
24) Plaintiff’s incapacity is not caused solely by sciatic neuritis, existing wholly independent of and not aggravated by the injury.
25) Plaintiff’s incapacity is not due solely to causes other than the injury, existing wholly independent of and not aggravated by the injury.
26) Plaintiff’s incapacity is not caused solely by an injury sustained in 1950.
27) The 1950 injury has not contributed to plaintiff’s incapacity.
29) Plaintiff’s incapacity is not caused solely by an injury sustained in 1952.
30) The 1952 injury has not contributed to plaintiff’s incapacity.

The Trial Court entered judgment on the verdict (total permanent incapacity; 401 weeks less 27 weeks already paid to plaintiff) for $12,199.81.

Defendant appeals, contending:

1) The Trial Court erred in refusing to grant defendant’s first motion for continuance.
2) The Trial Court erred: a) in not defining general incapacity as an incapacity “not produced by an injury confined to the right leg * * ”; b) in not instructing the jury that plaintiff was making no contention that he sustained injury to his right leg; c) and in not sustaining exceptions to plaintiff’s pleadings wherein plaintiff alleged injury to his leg.
3) The Trial Court erred in refusing to submit to the jury defendant’s requested issue inquiring as to whether plaintiff’s disability was temporary.
4) The Trial Court erred in its submission of issues 21, 23 and 24, in that the phrase “and not aggravated by the injury” should not have been included therein.
5) The Trial Court erred in permitting plaintiff’s counsel, over objection, to make improper and prejudicial statements in argument.
6) The Trial Court erred in permitting Dr. Sigler to testify to the effects of a ruptured or herniated disc.
7) The Trial Court erred in overruling defendant’s exceptions to plaintiff’s pleadings alleging that injuries to the back, leg and hip were external in character and could not be described, because such allegations were too vague and indefinite.
8) The Trial Court erred in permitting plaintiff and the witness Reece to testify as to plaintiff’s head injuries, as there were no pleadings to such effect.
9) The Trial Court erred in not permitting defendant to introduce a statement signed by the witness Banks, as impeachment evidence.
10)The Trial Court erred in overruling objection to plaintiff’s pleadings wherein plaintiff alleged he was entitled to recover for 401 weeks at the rate of 60% of his average weekly wage, not to exceed $35 per week.
11) The Trial Court erred in permitting plaintiff to plead and prove certain medical bills which had not been submitted to the Industrial Accident Board or to defendant.

Defendant’s 1st contention complains of the refusal of the Trial Court to grant its motion for continuance. This case was tried twice before this trial, each trial resulting in a mistrial. On 8 May, 1962, the Trial Judge set the case for trial for 30 July, 1962 notifying both parties. On 11 July, 1962 defendant’s counsel requested an examination of plaintiff by a Dr. Mahon, which plaintiff agreed to, and was so examined on 26 July, 1962. Dr. Mahon, though an orthopedic specialist, gave plaintiff a thorough general examination. On 26 July, 1962 defendant’s counsel requested to take plaintiff’s oral deposition. Plaintiff, in his deposition, stated a Dr. Jones of Ponta had treated him for high blood pressure. Defendant, in his motion for continuance, seeks delay in order to take Dr. Jones’ deposition to make discovery to prepare defenses in the case. Defendant does not allege that he expects to prove by Dr. Jones that high blood pressure was the sole cause of plaintiff’s incapacity. Dr. Mahon, who examined plaintiff on 26 July, did not even take plaintiff’s blood pressure. There is no showing that defendant exercised diligence in preparing for trial; that Dr. Jones’ testimony was material; that Dr. Jones had ever been subpoenaed to be in attendance at the trial; or that the overruling of the motion for continuance was reasonably calculated to cause the rendition of an improper trial. From the record as a whole, the failure to grant the motion for continuance could not have resulted in the rendition of an improper verdict. We do not think the Trial Court abused its discretion in overruling such motion.

Defendant’s 2nd contention is that the Trial Court should have, by definition, instruction and sustaining of exceptions, limited plaintiff’s case to a back injury by deleting all reference to the injuries plaintiff received to his right leg. Defendant contends that on the two previous trials of this cause, plaintiff “judicially admitted” that he was making no claim for an injury to his right leg or right foot.

A careful review of the record reflects that plaintiff’s admissions were that he was not seeking compensation for the specific injury to his leg, and not that he claimed no injury to his leg. In any event, the Trial Court permitted plaintiff to withdraw any such admissions. We think the jury had a right to know of all injuries received by plaintiff in the accident made the basis of this suit. If we be mistaken, we regard the matter harmless under Rule 434, Texas Rules of Civil Procedure.

Defendant’s 3rd contention is that it was entitled to an issue as to whether plaintiff’s disability was temporary. The Trial Court in Issue 4, inquired:

“How long do you find from a preponderance of the evidence that the total incapacity, if any, sustained by J. O. Jackson as a natural result of such injury, if any, to his back has continued or will continue from the date of beginning, if any?
“Answer by stating the period of time, if any.”
The jury answered: “Permanent

Defendant contends that the foregoing did not constitute an affirmative and unconditional submission of its defensive theory that the total incapacity of plaintiff was temporary. The issue submitted was sufficient to present defendant’s defense of temporary incapacity. Safety Cas. Co. v. Teets, CCA, W/E Ref., 195 S.W.2d 769; Superior Ins. Co. v. Owens, CCA, W/E Ref. n. r. e., 218 S.W.2d 517; Traders & General Ins. Co. v. Bradfute, CCA, W/E Ref. n. r. e., 229 S.W.2d 891; Texas Emp. Ins. Ass’n v. Johnson, CCA, W/E Ref. n. r. e., 275 S.W.2d 211.

Defendant’s 4th contention is level-led at the phrase "and not aggravated by the injury" contained in Issues 21, 23 and 24. Issue 21 reads:

“Do you find from a preponderance of the evidence that plaintiff’s incapacity, if any, since November 7, 1960, is not caused solely by a condition of his circulatory system existing wholly independent of, and not aggravated by, the injury, if any, sustained by plaintiff on May 7, 1960?
“Answer: ‘It is not caused solely by such circulatory condition’, or ‘It is caused solely by such circulatory condition.’” To which the jury answered: “It was not caused solely by such circulatory condition.”

Issues 23 and 24 were identical except that they inquired of “chronic prostatitis”, and “Sciatic neuritis.”

We believe that the Trial Court’s submission of the issues involved not erroneous ; if we be mistaken, such constitutes harmless error under the record as a whole. Rule 434 T.R.C.P.

Contention 5 complains of improper argument to the jury by plaintiff’s counsel. Issue 21 was to be answered: “It is not caused solely by such circulatory condition,” or “It is caused solely by such circulatory condition.” Issues 22, 23, 24 and 25 were to be similarly answered with reference to the matters inquired about. Plaintiff’s counsel, in arguing these issues to the jury, stated:

“If you leave the word ‘not’ out of any of those, I’ll venture the assertion Mr. Boyd and his group will go home mighty happy.”

Counsel for defendant objected, which objection was sustained by the Trial Court, and the jury instructed not to consider such.

Thereafter, counsel for plaintiff argued:
“We ask you to please follow the evidence in this case and so discussing the evidence directs you to put a ‘not’ in all of those. I’ll say this further thing. There’s 29 of them that doesn’t call for a ‘not’. Number 28 and 31, questions you don’t answer at all, after you have answered the others as the evidence directs. But if you leave the word ‘not’ out of any one of those issues there you will be saying his fall of May 7, 1960 had nothing whatsoever to do with his injury.”

Counsel for defendant objected, which objection was overruled by the Trial Court.

We think the argument complained of, to which the court sustained objection, if error, cured by the Trial Court’s sustaining of such objection, and instruction to the jury not to consider. We think the argument to which the court overruled objection to be proper argument, and in any event, in view of the record as a whole, could not require a reversal. Rule 434 T.R. C.P. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

Contention 6 complains of the action of the Trial Court in permitting Dr. Sigler to testify to the effects of a ruptured disc. Defendant objected to such testimony on the ground that there was no pleading of a ruptured disc. Plaintiff plead injury to his back, and further “all tissues, and organs of soft, bony and cartilaginous parts of the back, * * * were severely wrenched, bruised, strained, sprained, lacerated and torn.” The Trial Court correctly admitted the testimony of Dr. Sigler.

Contention 7 complains of the overruling by the Trial Court of exceptions to plaintiff’s pleadings to the effect that injuries to plaintiff’s back, hip and leg were internal in nature and “their exact nature cannot be described.” We think that plaintiff adequately described his injuries in his petition when viewed in its entirety, and that no error is shown by the Trial Court’s refusal to sustain the complained of exceptions. If we be mistaken, then such error is harmless. Rule 434, T.R. C.P.

Contention 8 complains of the Trial Court permitting plaintiff and the witness Reece to testify as to plaintiff’s head injuries, on the ground there were no pleadings to such effect. There was abundant evidence that plaintiff sustained an injury to his head in his accident on May 7, 1960, and that he was rendered unconscious thereby. There is no evidence or contention that the head injury caused any incapacity or disability, and plaintiff testified that it did not. No harm is shown. Rule 434 T.R.C.P.

Contention 9 complains of the exclusion by the Trial Court of a signed statement made by the witness Banks, in which no mention was made of plaintiff complaining of a back injury. Banks testified, among other things, that he was present when plaintiff was hurt; and that plaintiff was complaining of his back. Defendant sought to introduce a statement made by Banks 10 months after the accident, in which allegedly no mention was made that plaintiff complained of a back injury. The statement nowhere appears in the record before us. It was at no time offered in evidence on the bill of exception. Nothing is presented for review, since in the absence of the statement in the record we cannot determine whether the Trial Court erred or not in excluding it. Lucas v. Alsmeyer, CCA (n. w. h.) 322 S.W.2d 19; 3 Tex.Jur.2d 670, 672.

Contention 10 complains of the reading to the jury of plaintiff’s prayer seeking 401 weeks’ recovery at the rate of 60% of average weekly wage not to exceed $35 per week. While it is better practice not to read to the jury those- portions of the pleadings with which the jury is not concerned, in the absence of a showing of prejudice, such does not constitute reversible error. Argonaut Ins. Co. v. Titus, CCA (n.w.h.) 347 S.W.2d 372; Sisk v. Glens Falls Indemnity Co., CCA (n. r. e.) 310 S. W.2d 118, 66 A.L.R.2d 1; Texas Emp. Ins. Ass n v. Logsdon, CCA (n. r. e.) 278 S.W. 2d 893; Traders & General Ins. Co. v. Smith, Tex.Civ.App., 311 S.W.2d 91; Texas Emp. Ins. Ass’n v. Rubush, CCA (n. r. e.) 337 S.W.2d 501.

Defendant’s final contention complains of the Trial Court’s permitting plaintiff to prove medical bills which had not been submitted to the Board or to defendant. The Trial Court permitted plaintiff to prove up medical bills incurred to Dr. Beale, Dr. Sigler and St. Paul’s Hospital, none of which had been submitted to the Board or to the defendant. The jury answered Issue 11 to the effect that defendant did not fail to furnish medical aid and hospital services reasonably required by plaintiff. The judgment of the Trial Court does not include the complained of bills. No harm is shown. Rule 434 T.R.C.P.

All of defendant’s points and contentions have been considered and each is overruled. The judgment of the Trial Court is affirmed.


author: WERLEIN, Justice.

text:
    Dr. Louis A. ENSENAT, Appellant, v. Juan C. VAZQUEZ et ux., Appellees.
    No. 13988.
    Court of Civil Appeals of Texas. Houston.
    March 14, 1963.
    Rehearing Denied April 18, 1963.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellant.
    Joel W. Cook, Houston, on appeal only, for appellee.
   WERLEIN, Justice.

Appellant, Dr. Louis A. Ensenat, appeals from a judgment rendered against him and in favor of Juan Carlos Vazquez and wife, Diana Vazquez, in the sum of $970.00, based on the jury verdict in this consolidated cause comprising appellant’s suit No. 540,722 brought against appellees to recover a balance of $27,166.62 allegedly owing appellant on several notes, after allowing for payments and credits, and appellees’ suit No. 539,778 brought against appellant for cancellation of such notes, for usury, and for damages to appellees’ reputation.

Appellant contends that the finding by the jury that on or about August, 1959, an agreement was made between appellee and appellant whereby appellee agreed to convey to appellant the Light House Drive-In in exchange for appellant’s agreeing to cancel all indebtedness owed by appellee and his wife to appellant, is against the overwhelming weight and preponderance of the evidence. We have carefully read the statement of facts and examined the record in an effort to determine whether this point should be sustained. The testimony with respect to the transactions between appellant and appellee is both conflicting and confusing.

Appellant alleged that in May, 1957 ap-pellee and his wife made and executed and delivered to him their certain promissory note for $2,600.00, payable in monthly installments of $25.00 for a period of two years, with balance in the sum of $2,000.00 payable on May 28, 1959, which note was secured by a chattel mortgage on the personal property, fixtures and equipment in the Light House Drive-In; that in June, 1957 appellees executed and delivered to appellant their note for $10,280.00, payable in specified monthly installments for two years, with the balance in the sum of $6,000.-00 being due and payable on June 10, 1959, which note was secured by a chattel mortgage covering the furniture, fixtures and equipment in the building, and also the building owned by appellees and known as the Light House Drive-In, which appellee, Vazquez, had constructed on leased land; and that in September, 1958, said appellee executed a $7,200.00 note, payable to appellant in monthly installments. This latter note is dated October 17, 1958, and is signed by Julio Voirin and Adolph Voirin, as well as by appellee, Juan C. Vazquez. Appellant also alleged that in February, 1959 appellee executed and delivered to him a note for $4,200.00 payable in weekly installments; and that in January, 1959 appellees made, executed and delivered to appellant a note in the sum of $5,500.00 payable to appellant in monthly installments. This latter note appears to be actually in the sum of $5,-550.00 dated January 21, 1959.

Appellant further alleged that the $2,-600.00 and the $10,280.00 notes were past due and in default, and that the balance owing thereon as of November 14, 1959 was $9,312.72; that appellees were notified that appellant would exercise his rights of foreclosure and the sale of the property securing such notes would be held on November 23, 1959; that the sale was actually conducted on November 24,1959, all parties being notified thereof, and that appellant bid for the personalty and fixtures, including the building, the sum of $650.00, which he credited on the amount owing him by appellees.

In answer to a request by appellant for admissions, appellee admitted that he received a letter addressed to him and his wife notifying them as of November 14, 1959, of the amount due and owing on said two notes and of the auction sale which would be conducted at the premises known as the Light House Drive-In; that after being so notified appellees filed suit against appellant in the District Court of Harris County, alleging in their petition “that such sale, if conducted will cause and create a deficiency in the moneys alleged to be due the Defendant, Dr. Louis A. Ensenat;” that a show-cause hearing with respect to Cause No. 539,778 was set for the morning of November 23, 1959, and at such time an agreement was entered into giving appellant the right to proceed with the foreclosure of the chattel mortgages on November 24, 1959 without prejudice to any matters arising out of any litigation; and that neither of the appellees was present at the time of the auction.

On November 20, 1959, which was after appellees received notice that the chattel mortgages would be foreclosed on the Light House Drive-In, they filed said cause No. 539,778 against appellant, and on August 10, 1960 filed their first amended original petition in which they alleged, among other things:

“Plaintiffs (appellees) would show that on or about August 3, 1959, Plaintiffs and Defendant (appellant) entered into an agreement whereby Plaintiffs did agree to convey to Defendant all of the property and equipment located at 2215 Clinton Drive, Galena Park, Texas, including the business and good will of the premises known as Light House Drive-In, for. and in consideration of the cancellation by the Defendant of all existing indebtedness owed or owing to Defendant by Plaintiffs. Pursuant to the foregoing, Defendant, Dr. Louis A. Ensenat, did hire and employ one Louise Alhand to manage, control and operate said business and on August 3, 1959, said Defendant by and through his employee, Louise Alhand, did take the control, management and operation of said business.”

In answer to appellant’s amended petition, appellees admitted the execution of the $2,600.00 and $10,280.00 notes and the chattel mortgages, denied other allegations, and then pleaded the alleged agreement substantially as in their amended petition except the date of the agreement was alleged to be September 23, 1959.

On May 10, 1961, in Cause No. 539,778, appellees filed their supplemental petition in which they admitted the execution of the note in the sum of $5,550.00 which they had previously denied executing, but alleged that there was a failure of consideration for said note, in that said note was executed to cover unaccrued rent on the Light House Drive-In.

Appellee testified with respect to the agreement entered into, in substance,, that he told the appellant that he had to take care of two drive-ins that belonged to appellant as well as the Light House Drive-In and it was too many hours’ work. He also testified: “I tell him I can take the other two drive-ins and he take the Light House Drive-In worth $19,000.00. I tell him you take that and I take other two drive-ins.” The following testimony was adduced :

“Q What did the doctor propose or did he propose anything based upon that conversation ?
“A I tell him the way we can do it. You can give me the other two drive-ins without money to nobody and you take mine and we are even and I sell the other ones and you keep this one and this is good business, and he said that is all right, and that is where we' started.
“Q He agreed positively to do that?
“A Yes.
“Q There was no question in his mind about that ?
“A No, sir.
“Q If I understood you correctly you made an agreement with Dr. Ens-enat?
“A Yes.
“Q Whereby he takes the Light House Drive-In ?
“A Yes.
“Q He cancelled all indebtedness owed by you to him?
“A Yes.
“Q He has no obligation or rights against you or anything else belonging to you?
“A Yes.
“Q This was approximately the first part of July, 1959?
“A Yes, sir.
“Q What did either of you do to consummate or complete this agreement?
“A He bring me two ladies to drive-in to tell me to choose which I think is the best one. They were Mrs. Louise Alhan and Mrs. Brown. I chose Mrs. Alhan. Her father was sick and she could not start right away on the 1st of July so I had to run the place another month until the 1st of August.
“Q And you decided on Mrs. Louise Alhan ?
“A Yes. She showed more interest in the drive-in.
“Q She could not start for approximately thirty days ?
“A Yes, because her father was sick
“Q Before she started what did the doctor do? You had utility deposits, didn’t you?
“A Yes. I still run the place like I usually do. Instead of the doctor taking over in July he took over in August.

It will be noted that in one of the pleadings of appellees the date of the alleged agreement is given as August 3, 1959, while in another pleading it is given as September 23, 1959, whereas appellee testified that the agreement was the first part of July, 1959, although everything was postponed to August 3, 1959. It will further be observed that appellees at no time pleaded there was an agreement between appellant and appel-lee to the effect that appellee would take the other two drive-ins and that appellant would take the Light House Drive-In. Yet the testimony of appellee shows that the agreement he allegedly entered into was a positive agreement covering the exchange of the drive-ins. After so testifying, ap-pellee, in answer to the leading question, “He cancelled all indebtedness owed by you to him?” answered, “Yes.” Appellee also testified that after such agreement he worked in the doctor’s clinic for one month when he was told that the doctor didn’t need him any more and he then looked for a job in another place. He testified, “I told him when I left the hospital I told him that we would make the papers on this deal and he told me to go and see his lawyer.” The following then occurred:

“Q The doctor told you to go to see him to draw the papers on this agreement ?
“A Yes, sir.
“Q Did you?
“A Yes, sir, I went in his office. When I come to fix the transfer to the doctor and he told me, ‘Well, before we transfer I want you to’, the doctor say, T want you to sign another note for $5,000.00 to pay $20.00 per month.’
“Q What did you say to that?
“A I say, ‘Our agreement was to transfer all this here and he is to keep the Light House and I was to keep the other two and that is it.’ He said, ‘No.’ And I tell him, T cannot pay that much. I do not think I owe anything to him.’ He kept on and I said, ‘Let me go home and discuss this with my wife,’ and this is when I came to you.”

Appellant testified unequivocally that he never had any agreement with appellee with respect to making an exchange of the drive-ins, and that he did not at any time agree to cancel the indebtedness owing him by appellees. Appellant had in addition to the $2,600.00 and the $10,280.00 notes, the $7,-200.00 note which had been signed by ap-pellee, and the $5,550.00 note, and he also testified as to a $4,200.00 note which, however, he could not locate. There is no pleading whatever by appellees regarding the $7,200.00 note. Appellant objected to the submission of issues on the $7,200.00 note, which appellee testified, and the jury found, he had signed merely to identify the other parties who signed the note with him, on the ground that there was no pleading whatever by appellees in regard to such note.

There is evidence showing that at the time of the alleged agreement the Light House Drive-In was in a rather run-down condition, and was probably not worth anything like the amount of the indebtedness secured by it. Both the $2,600.00 and the $10,280.00 notes were at that time past due, and appellant was prepared to foreclose his chattel mortgages against the property,, which he shortly thereafter did.

We are of the opinion that the finding of the jury, that on or about August, 1959, an agreement was made between ap-pellee and appellant whereby appellee agreed to convey to appellant the Light House Drive-In in exchange for appellant’s agreeing to cancel all indebtedness owed by ap-pellee and his wife to appellant, is against the great weight and preponderance of the evidence. It seems highly improbable the appellant would agree to accept property which he would soon acquire by foreclosure, and in consideration therefor release an indebtedness claimed by him in excess of $27,000.00, and at the same time give appel-lee the other two drive-ins. Moreover, the agreement as testified to by appellee is not the same as the agreement pled by him. He pled that the agreement was that he would convey the Light House Drive-In to appellant in consideration of appellant’s release of all indebtedness owing him by appellees. At one time he testified that the agreement was that he was to exchange the Light House Drive-In for two drive-ins owned by appellant and also the indebtedness was to be released. He also testified that when he was at the office of appellant’s lawyer, he told them the agreement was that appellant was to keep the Light House Drive-In and he, appellee, was to have the other two drive-ins. In such testimony there is nothing to indicate that there was also to be a release of any indebtedness.

Furthermore, the testimony of appellee with respect to any agreement indicates not only confusion in his mind as to what such agreement was, but makes it uncertain as to whether there was a definite oral agreement completed or whether it was the understanding of the parties that an agreement would be completed and consummated by the execution of papers at the lawyer’s office. No issue with respect to such matter was submitted to the jury, although appellee’s testimony indicates that it was contemplated that transfer papers and a release were to be executed.

There is evidence also that appellant had invested in the Dairy Malt Drive-In some $3,400.00, and $5,000.00 in the Tastee Freeze Drive-In, which he either owned or held mortgages against securing him in such' amounts. Assuming there was an agreement such as testified to by appellee with respect to exchanging the drive-ins, which agreement was not pleaded, it is difficult to understand why no trial amendment was filed by appellee near the beginning of the trial when he testified to such agreement, and when his attention was directed to the fact that no such agreement had been pleaded by him. It seems rather strange that appellee has taken no steps, as far as the record reflects, to acquire the other two drive-ins which appellant testified he still owns, if appellee and appellant had entered into such agreement. Appellee also testified there was only one agreement between himself and appellant. No issue was requested or submitted in regard to the agreement testified to by appellee with respect to the exchange of drive-ins.

Appellant testified that he assumed supervisory control over the Light House Drive-In when appellee came to him and advised that he was overworked and could not carry on, but that he did so to protect his investment since appellee was in default in the payment of said notes and was in such condition apparently that he could not continue to operate the Light House Drive-In. We think appellant’s conduct in assuming supervisory control over the business is consistent with his contention that he was merely protecting his investment.

The testimony of appellee with respect to what indebtedness was to be released in accordance with the alleged agreement, is also indefinite and confusing. At one time he testified all indebtedness would be released. At another time he testified that appellant was supposed to release about $16,000.00 of notes, consisting of the $2,-600.00, $10,280.00 and $5,550.00 notes.

Appellees assert that the testimony of appellee with reference to the future formal releases and transfers of the business did not negative the existence of the present executed oral agreement. 13 Tex. Jur.2d, p. 156, Contracts, § 32. See also Simmons & Simmons Construction Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415. The rule is laid down by Williston as follows:

“If, therefore, the parties have definitely agreed with one another upon all the terms that a proposed written contract shall contain, there is a contract, for they have made positive promises to one another, certain in their content and sufficient as consideration for one another.” Vol. 1, § 28A, p. 64.

We are in accord with the foregoing principle of law. It is our view, however, that in the instant case the evidence is insufficient to support the jury finding that there was such oral agreement entered into.

It is our view, also, that there is insufficient evidence to support the finding by the jury that appellees paid appellant $485.00 interest. It was error, therefore, for the court to decree that appellees were entitled to recover against appellant $970.00 representing double the amount of usurious interest paid appellant. In view of the possibility of another trial, we shall consider appellant’s points of error with respect to usurious interest.

The $2,600.00 note dated May 28, 1957 on its face bore 6% interest per annum, but appellee testified he received only $1,999.00 in consideration for signing such note, which was payable in full on May 28, 1959. Appellee also testified that the only consideration paid him for executing the $10,-280.00 note dated June 10, 1957 and maturing in full June 10, 1959, was $8,000.00. Accepting the testimony of Vazquez as true, each of said notes was in its incipiency usurious, since even without considering the interest called for in such notes, the difference between the face value of each such note and the amount received by appellee for execution and delivery thereof exceeded 10% interest per annum for the life of each such note. Yonack v. Emery, Tex.Com.App. 1929, 13 S.W.2d 667, 70 A.L.R. 684; Rosetti v. Lozano, 96 Tex. 57, 70 S.W. 204; Schmid v. City Nat. Bank of Wichita Falls, 132 Tex. 115, 114 S.W.2d 854; Standard Finance Corporation v. Havins, Tex. Civ. App., 69 S.W.2d 437, writ dism.

Certain payments had been made on both of the above described notes, but there is no testimony showing how the payments were applied. In the absence of such evidence, it will be presumed that the payments were applied to principal, or the lawful portion of the contract, and not to the payment of usurious interest. Gunter v. Merchant, Tex.Com.App., 213 S.W. 604; Ware v. Paxton, Tex.Civ.App., 266 S.W.2d 218, writ ref., n. r. e. Appellant pleaded, however, that since the execution of said two notes, appellees had paid the sum of $3,330.00 on the $10,280.00 note,, which amount included $162.72 which was applied to interest on said note. Double this amount, which appellant has admitted was applied to interest, may be recovered by appellee if the evidence adduced upon a new trial shows such note to be usurious. Under Article 5073, Vernon’s Annotated Texas Statutes, where a payment is intentionally appropriated or applied to the discharge of usurious interest, the right to the penalty of twice the amount of interest paid attaches at once, though the principal of the note has not been paid. Taylor v. Shelton, 63 Tex.Civ.App. 626, 134 S.W. 302, writ den.; Stout et al. v. Ennis National Bank, 69 Tex. 384, 8 S.W. 808; Yonack v. Emery, supra; Rosetti v. Lozano, supra.

In view of our holding, we think it unnecessary to discuss appellant’s other points of error as they relate to alleged errors which may not occur upon a retrial of the case.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    Claud SENN, Appellant, v. J. C. STRANGE, Appellee.
    No. 7246.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1963.

      Baker & Bryant, Sherman, for appellant.
    Key, Carr, Carr & Clark, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal from a take-nothing judgment based upon a jury verdict in Kent County involving a suit filed by appellant, Claud Senn, against appellee, J. C. Strange.

The parties entered into an oral agreement by which appellee was to mine gravel on appellant’s land in Kent County in order to acquire Grade 5 gravel. He was not to pay any cash royalty. The considerations moving to appellant were the byproducts of the mining operation. Those were sand and gravel, the latter being larger than Grade S, referred to in the record as gravel used for packing wells and making concrete. The record indicates the sand by-product was used for plaster material and that on several occasions appellee’s employees stopped their operations to load the sand for appellant.

Appellee brought equipment for dry-screening but because of the moisture condition in the soil it did not separate and clean sufficiently to be accepted by the Texas Highway Department, the purchaser of the No. 5 gravel. It was agreed by the parties then that appellee might use appellant’s gravel washer, dump truck, and front-end loader.

The controversy that prompted the law suit arose out of disagreements as to whether appellant stripped as much overburden as was already stripped when he started mining and as to whether it was agreed between the parties that appellee should pay for the use of appellant’s equipment. Also damages were sought for reasonable cost of cleaning out the seep basin.

Appellee filed a counter claim for repairs he made to appellant’s equipment; for cost of loading materials for appellant; for cost of stripping top soil on state highway property until the highway department stopped him from doing so; for stock piling appellant’s by-products; and for the return of appellee’s radio tower or damage for conversion of same.

A study of the issues indicates the jury in answering the 56 special issues submitted did a rather expert job of balancing the claims the parties made against each other, such issues as answered denying recovery to each party except appellee’s demand for his radio equipment.

From the answers to the 56 questions, the court on April 11, 1962, signed and entered a take-nothing judgment against appellant and that appellee recover the radio tower and antenna, or the reasonable value thereof in the sum of $300. It is from such judgment appeal is perfected to our court upon five points of error, the first three of which allege jury misconduct.

In his Amended Motion for New Trial appellant attached thereto the affidavits of three jurors which had the effect of impeaching the verdict rendered. The affidavits were to the effect that all twelve jurors agreed appellant was entitled to $325 for damages for soil stripping, $300 for damages to his seep basin, and that the foreman neglected to place the jury’s answers to the issues inquiring about same. There is no affidavit in the record from the foreman. They also stated in the affidavits that the answer “no” to issue seven was wrong and should have been “yes”.

In attaching the affidavits to the Motion for New Trial appellant followed the correct procedure to show the trial court he was not launching a “fishing expedition” on jury misconduct. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (Com.App., opinion adopted). The amended motion was filed on May 10, 1962. On June 7, 1962, the trial court in a letter written from Haskell, Texas wrote each attorney, called their attention to the fact that he had been furnished the amended motion for new trial and told them to contact each other and advise him when they would like to have the motion heard. The complaining party had 45 days from May 10, 1962, in which to pursue his motion unless by written agreement of the parties that time was extended. Rule 329b V.A.T.R. There is nothing in the record to indicate an extension agreement by the parties nor to show any response by appellant to the trial court’s letter telling them to advise him when they would like to have the motion heard. The record is also silent as to any formal overruling of the motion by the trial court, so we would have to assume it was overruled by operation of law.

Where affidavits are attached to a motion for new trial showing material jury misconduct, it is reversible error for the trial court to refuse to hear testimony on the motion. Roy Jones Lumber Co. v. Murphy, supra. However, there is not any evidence in the record showing the court refused to hear the motion. To the contrary, his letter showed affirmatively he would hear the motion. Appellant, so far as this record is concerned, simply never requested a hearing.

Rule 327 V.A.T.R. provides under circumstances such as we are here considering “the court shall hear evidence thereof from the jury or others in open court.” The burden was on appellant to show the alleged misconduct. The affidavits attached to the motion did not comply with this burden. Rule 327 V.A.T.R.; City of San Antonio v. Anderson, Tex.Civ.App., 343 S.W. 2d 950 (NWH).

We are not holding the matters stated in the affidavits attached to the motion did or did not constitute reversible error if testified to in open court but that we have no proper evidence before us showing such facts. Under such circumstances we have no alternative except to overrule all points asserting jury misconduct. Phillips v. Fowler, Tex.Civ.App., 348 S.W.2d 224 (writ dismissed).

In points four and five appellant asserts error of the trial court in not granting a new trial because the answer to special issue No. 7 is without support in the evidence and is in irreconcilable conflict with the answers to special issues 45 and 46.

Special issue No. 7 inquired of the jury if appellee agreed to leave as much top soil stripped from appellant’s gravel at the end of his operation as was stripped at the beginning of his operation. Both appellant and appellee testified that was the agreement between them. This issue was unnecessary and completely immaterial because it was not a contested issue. Wright v. Vernon Compress Company, 156 Tex. 474, 296 S.W.2d 517.

The first nine issues submitted were appellant’s issues; that is, issues upon which he sought to recover. Issues Nos. 8 and 9 inquired if appellee failed to leave as much top soil stripped as was stripped when he started operations and if so how much money it would take to compensate appellant for such failure. Special issue 8 was a conditional submission depending upon an affirmative answer to No. 7, an immaterial issue answered in the negative. Issue 9 was then made conditional upon the preceding issue. The record is void of any objections to the form of submission. They were issues upon which appellant was dependent for recovery of any amount of money based upon any failure of appellee to strip the overburden. Since he did not complain of the form of submission by which his recovery was dependent, we do not believe the record shows reversible error even if it should be said that special issue 7, an immaterial issue unobjected to, is in irreconcilable conflict with the answers to issues 45 and 46.

Special issue 45 was a defensive issue pleaded by appellee and which inquired if appellee stripped enough soil to constitute a substantial performance of the alleged contract. The jury answered in the negative but there was not any objection to the form of submission, not any issue conditional thereon inquiring the amount of money it would take to reasonably compensate for failure to substantially perform, nor a request for any such issue. Additionally, the answer to the issue was not essential to the rendition of judgment. The same applies to issue 46, which appears to be global in nature, inquiring if appellee substantially performed the alleged contract in general. The record is void of any objections to the issues.

A conflict between a fact admitted and findings by the jury of facts not essential to the rendition of judgment will not affect the validity of a verdict if there are material facts sufficient to support the judgment rendered. Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W. 2d 731 (Com.App., opinion adopted).

From this record we believe there were facts from which the court could impliedly find that appellant had failed to discharge the burden required to show himself to be entitled to damages for failure of appellee to substantially perform on the soil stripping question. The only issues submitted on the question of damages in that regard were based on an immaterial issue and were left unanswered. Therefore, there is not any basis in the record on which the court could have rendered a judgment for any amount for failure to substantially perform in that regard.

‘It is the duty of the trial court to reconcile apparent conflicts in the jury’s findings if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole.’ ” Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907. When this rule is applied to the record before us, we believe it shows the trial court rendered a proper judgment. Accordingly, the judgment of the trial court is affirmed.

      . Grade 5 gravel is shown in the record to be that up to ½ inch in size.

      . The overburden constituted the top soil of 8 to 15 inches depth that had to be stripped off the top in order to get to the commercial gravel beds.

      .There is testimony to the effect that at least part of the area where appellant told the men working for appellee to strip overburden, belonged to the state highway and the Highway Department stopped the stripping.


text:
    Barbara Sue DOUGLAS, a Minor, by Mildred Dehtan, Next Friend, Appellant, v. Harold CORDER, et ux., and Henry Hobson Whitney, Appellees.
    No. 7229.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1963.
    Rebearing Denied March 11, 1963.

      Cade & Bowlin, Lubbock, for appellant.
    Splawn & Maner, Crenshaw, Dupree & Milam, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal from a jury verdict in an action for negligence filed by appellees, Harold Corder and wife, Jean Corder, against appellant, Barbara Sue Douglas, a minor, by Mildred Dehtan, her mother as next friend and against Henry Hobson Whitney. On issues submitted the jury found $9,000 damages for injuries sustained by Jean Corder and $3,000 for medical, hospital, and doctors’ bills already accumulated and which in reasonable probability would be necessary in the future. A remittitur was required of $1,200 for the latter expense and judgment was rendered for $10,800 jointly and severally against Barbara Sue Douglas and Henry Hobson Whitney. It is from that judgment that Barbara Sue Douglas, by Mildred Dehtan, as next friend has appealed.

The first point with which we are presented is a contention that the case must be reversed because no guardian ad litem was appointed for Barbara Sue Douglas, a minor 17 years of age at the time of the trial. The brief of the point seems to be leveled at the fact that under such circumstances it is necessary to appoint a guardian ad litem. Rule 173 VATR seems to be clear on the point that a guardian ad litem would have to be appointed under the circumstances but the contention that a guardian ad litem was not appointed is contrary to the record before us.

The first judgment entered on February 23, 1962, neglected to show the appointment of the guardian ad litem for the minor. The court on June 20, 1962, in a nunc pro tunc order showed that he actually had appointed the minor’s natural mother Mildred Dehtan as guardian ad litem prior to the hearing of any testimony, which order shows the following notation on the docket sheet:

“February 5, 1962 — jury selected. To trial. Girl’s mother appointed guardian ad litem.”

The actual fact of the appointment is recognized in a motion for judgment filed by appellant following the verdict, which motion states:

“Now come the defendant, Barbara Sue Douglas, and her guardian ad litem, Mildred Dehtan duly appointed by the court, * * * ” (Emphasis added.)

In view of the record in this case it would constitute an injustice not to enter the nunc pro tunc order and judgment simply because the court or the attorney drawing the judgment neglected to show the appointment in the judgment. “The very basis of an entry of a judgment nunc pro tunc is that an injustice is being prevented.” Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296 (Com.App. opinion adopted).

The next contention presented is that Barbara Sue Douglas was, as a matter of law, acting in an emergency not produced on her part and should be exculpated of any liability even though the doctrine was not pleaded as a defense and no issue requested or given inquiring as to whether she was acting in an emergency.

Prior to the collision furnishing the genesis of the cause of action alleged by plaintiffs against defendants, Mr. and Mrs. Corder were parked in their automobile on 50th Street facing west in the city of Lubbock. There was a stop sign requiring a stop before proceeding from 50th Street onto Avenue A constituting the intersection with 50th Street. Defendant Whitney was proceeding eastward on 50th Street. There was also a stop sign on his side of Avenue A. Whether he had or had not stopped before proceeding into the intersection is immaterial in view of the various grounds of negligence found against him.

Defendant Barbara Sue Douglas was proceeding down Avenue A from the south, traveling north from Mr. Whitney’s right and from the Corders’ left, traveling approximately 45 miles per hour in a 50 mile zone for Avenue A. The left front of her car collided with the right rear of the Whitney car in the intersection and knocked it into the Corder car, causing a whiplash of Mrs. Corder’s neck and the serious injuries from which she was still suffering at the time of trial.

The testimony shows without contradiction that it was a cloudless day on June 19; that it was approximately 7 p. m.; that the sun was still shining brightly; that the roads were completely dry; and that for at least 1,550 feet in the direction from which Barbara Sue Douglas was approaching there was a clear view of the intersection.

The testimony shows Mr. Whitney proceeded into the intersection very slowly, from 5 to 7 miles per hour, and that after he started into the intersection he looked neither to the right nor left. The Statement of Facts shows the case was tried before the jury with a drawing of the intersection before them and the placing of marks on the drawing by the witnesses to indicate the position of the cars. That drawing was not brought forward and the testimony is such that it is not completely clear just exactly where the Whitney car was at the time of the impact with the car being driven by Barbara Sue Douglas. Mr. Corder testified the Whitney car was completely off the pavement at the time appellant’s car hit the Whitney car and that it skidded broadside into his car, the left rear hitting the left front of his car and then turning over on its side.

The jury found Mr. Whitney was negligent in driving too slowly; in failing to keep a proper lookout; and in failing to yield the right of way to Barbara Sue Douglas, and that each of such actions constituted a proximate cause of the collision. None of his acts were found to be the sole proximate cause of the collision.

Miss Douglas, who was driving her mother’s car with her permission at the time, was acquitted of failure to keep a proper lookout; of driving at a greater rate of speed than an ordinary prudent person; of turning to the right off the pavement; and of failing to yield the right of way. They found her guilty of failure to apply her brakes as soon as a person of ordinary prudence would have done so, and that such failure was a proximate cause of the collision.

The record is void of any pleadings of sudden emergency and no issue was requested on the subject.

In researching this question of sudden emergency we have found numerous theories and many loose statements on the subject. For example, one authority indicates the "fright, terror or panic doctrine” (imminent peril] and “sudden emergency” are separate doctrines. Jones v. McIlveene, Tex.Civ.App., 105 S.W.2d 503. We believe the terms are synonymous and technically may be used interchangeably. The discussions by the Supreme Court in Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386 in which the court refers to them interchangeably seems to us to so indicate.

Our Supreme Court in the landmark case of Beck v. Browning, 129 Tex. 7, 101 S.W. 2d 545 set out four principles governing liability in sudden peril. As applied to the facts of our case they would require that:

1. The peril was caused by Mr. Whitney.
2. The apprehension of peril on the part of Miss Douglas must have been reasonable.
3. The apprehension of danger must have been so imminent as to leave no time for deliberation.
4. The negligence, if any, of Miss Douglas must not have concurred in bringing about a situation of peril, or contributed in creating the startled, dazed, or confused condition of her mind.

In applying the “sudden emergency” or “imminent peril” doctrine to the facts before us, we are of the opinion that the record did not require the trial court to grant appellant’s motion for instructed verdict on the “sudden emergency” theory, the record showing that was the first time it was raised in the case. Furthermore, we do not believe the probative evidence established the existence of an emergency.

Though the jury found Miss Douglas did not fail to keep a proper lookout, the finding was contrary to the great weight and preponderance of the evidence. That point was not raised as a counterpoint but in passing upon the question of whether appellant was guilty of negligence prior to the emergency we would, from this record, have to say, regardless of the jury finding to the contrary, that she failed to keep a proper lookout on the occasion in question. As heretofore stated, it was a cloudless day, the sun was still shining brightly, the roads were dry and she could see the intersection at least 1,550 feet before she arrived at it. Mr. Whitney was, according to the record, going no more than 7 miles per hour. Appellant’s own brief states Mr. Whitney traveled 40 feet from the stop sign before he even reached the pavement on Avenue A. As we understand the testimony he was struck either after he had just cleared the pavement or on the east side thereof. By her own testimony Miss Douglas was going more than six times as fast as Mr. Whitney and would therefore have been as much as 240 feet south of the place of collision at the time Mr. Whitney left the stop sign to proceed onto Avenue A. The evidence is without contradiction that as she approached there were no objects to prevent a clear view of the intersection. If she had been maintaining such a lookout as a reasonable and prudent person, in the exercise of ordinary care would have maintained under the same or similar circumstances, she could not have kept from seeing Mr. Whitney in time to have avoided the collision. Our Supreme Court in Gools-bee, supra, has approved the following definition of emergency in connection with the doctrine here under discussion:

“ ‘By the term ‘emergency’, as used in this charge, is meant a condition arising suddenly and unexpectedly and not proximately caused by any negligent act or omission of the person in question and which calls for immediate action on his part and without time for deliberation.’ ”

Accordingly, under our Supreme Court’s approved definition in Goolsbee and the principles approved by that court in Beck v. Browning, supra, as governing liability in cases of sudden emergency or imminent peril the doctrine is not applicable in the instant case even if it had been properly raised.

The next contention made by appellant is that the court erred in his charge in requiring the same degree of care as would be required of an adult. Neither in the definitions nor in the issues was the word “adult” used and conversely the word “minor” was not used nor was Miss Douglas’ age mentioned. She was 16 years of age at the time of the collision, possessed a driver’s license with no restrictions attached to it, was an employee in a restaurant in the city of Lubbock and had been driving with full license for a year. The issue complained about asked if she failed to apply her brakes as soon as a person of ordinary prudence would have applied them. Negligence was defined as the

“doing of that which a person of ordinary prudence would not do under the same or similar circumstances, or the failure to do that which a person of ordinary prudence would do under the same or similar circumstances.”

Our Supreme Court has held that under such circumstances if a 16 year old is “wanting in discretion or laboring under the handicap of some mental defect the burden was [is] upon him to establish that fact.” Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. The presumption is that Miss Douglas was normal. Seinshei-mer, supra. We have found no authority by the Supreme Court changing their rules announced in the case from which we have just quoted so feel compelled to follow that authority. Therefore, the point is without merit.

The next point urged is that the court committed reversible error in refusing to submit an issue on unavoidable accident. There is sufficient evidence to support findings of negligence on the part of both Barbara Sue Douglas and Mr. Whitney which proximately caused or contributed to cause the collision. Obviously then, the pronouncements by our Supreme Court as to what constitutes a proper definition of the term “unavoidable accident” would show the instant case to be an improper one for a submission of the question. Airline Motor Coaches v. Fields, 140 Tex. 221, 166 S.W.2d 917 (Com.App. opinion adopted).

Accordingly, the judgment of the trial court is in all things affirmed.

      . Statements such as a certain car was “about there” give us no information whatever to go by since “about there” is not explained in the record before us. It is obvious this case was tried for the benefit of the trial court and jury and not for an appellate court.


text:
    CITY COMMISSION OF PAMPA, Texas, et al., Appellants, v. Herman WHATLEY et al., Appellees.
    No. 7226.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 11, 1963.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Gassaway, Allen & Norman, Borger, for appellees.
   CHAPMAN, Justice.

This case involves the right of appel-lees, (Herman Whatley, W. C. Fry, Claude Wilson, A. W. Lunsford, and A. C. Troop) each a private individual occupying no official position in the city of Pampa or Gray County, to a writ of mandamus to compel the city commission of Pampa to fix a day for holding recall elections upon the commissioners of three of the four wards of the city of Pampa and by such order direct that each election be held the same day and that only the qualified electors residing in the respective wards be permitted to cast ballots for or against the commissioners in whose ward such electors resided. Appellees Whatley, Wilson, and Troop were alleged to be candidates to fill the positions proposed to be created by the recall election sought. The election was ordered by the commission to determine whether Mayor Sidwell should be recalled from his elective office as mayor of the city of Pampa, so that question is not before us. It was denied as to the four commissioners “for the reason that said petitions, singly and compositely, do not comply with the requirements of Article 4, Section 2 of the charter of the city of Pampa authorizing the governing authority of the city to order and fix a day for holding a recall election * * naming each commissioner in each order denying the petitions.

The trial court granted the writ of mandamus. The three commissioners now involved are Lloyd M. Simpson, Commissioner of Ward One (1) ; Leon Holmes, Commissioner of Ward Three (3); and L. P. Fort, Commissioner of Ward Four (4).

All emphases herein are ours.

There is no special statutory authority in Texas authorizing private citizens to bring actions for the removal of elective municipal officers in recall elections. The only specific statutory procedures we have found in connection with the removal of municipal officers are Articles 5991 through 5995 Vernon’s Tex.Civ.St. and those statutes have no application to the instant case. If the petitions had been brought under specific statutory authority, mandamus would have been applicable to enforce such special statutory right. Yett v. Cook, 115 Tex. 205, 281 S.W. 837. In that case our Supreme Court said:

“The cases of Sansom v. Mercer [68 Tex. 488, 5 S.W. 62], * * * Kimberly v. Morris, 87 Tex. 637, 31 S.W. 808, and Boynton v. Brown (Tex. Civ.App.) 164 S.W. 893, are not in point in favor of defendant in error. In each of these cases there was a statute conferring upon certain petitioners the right to have an election ordered. Mandamus was awarded to enforce •.this special statutory right.”

Therefore, the only authority petitioners had in the instant case was the charter authority provided in the Pampa City Charter for the recall of the elected municipal officers. That charter provision provided that a petition for the recall of any elective officer of the city “shall be signed by at least thirty (30) per cent of the qualified voters, to be determined by the number of votes cast in the last regular municipal election-, at least one-tenth (1-10) of these signing the petition shall certify that at the election at which the officer or officers was or were elected, they voted for the election of such officer or officers proposed to be recalled.” That charter provision was enacted at a time when the city of Pampa operated with a mayor and two city commissioners elected from the city at large. When the ward system with four commissioners was adopted, the provision for recall of elective officers was not amended and had not been amended to the day the petitions for recall were submitted to the commission.

None of the petitions for recall of any commissioner complied with the plain requirement of the charter to the effect that the petitions for recall of any elective officer shall be signed by at least thirty per cent of the qualified voters to be determined by the number of votes cast in the last regular municipal election. When that charter provision became effective, it was completely operative because the commission was elected from the city as a whole and there was not any ward division within the city. When the city adopted the ward system it provided each commissioner should be elected from his own ward but it failed to amend the charter to make it conform to a sitution where thirty per cent of the electors of any ward constituted a sufficient number of electors for the recall of that particular commissioner, provided ten per cent of them certified that at the election at which the officer sought to be recalled was elected they voted for him.

It is not possible from this record for us to know whether it was the intention of the city when it adopted the ward system and left the recall section of the charter as it was, to require thirty per cent of the qualified voters of the entire city to sign a petition for recall of each commissioner or if it was an oversight in not amending the recall section to conform to the change. When elected, a commissioner becomes an officer for the entire city and his vote binds the entire city. It is not entirely unreasonable to assume that in leaving the recall section as it was the city was giving those who could not vote for three of the commissioners a voice in recalling them instead of leaving the recall only to the commissioner’s own ward, whether friendly or unfriendly. Had they intended to change it all that would have been necessary would have been to amend the recall section to say each petition for recall of each commissioner should contain thirty per cent of the qualified voters in that commissioner’s ward. This they did not do. We do not believe we have the authority to amend the charter by judicial decree in order to make it possible for the petitioners to mandamus the commission to call the elections even though it should be said that charters should be liberally construed in favor of the people.

One of the points urged by the Commission is that mandamus will not lie because the petition for writ of mandamus would require the performance by the commission of judicial functions in its determination as to whether the petition for the recall of each commissioner measures up to the requirements of the Pampa City Charter which are prerequisite to an order of the commission calling the election. We believe what we have already said would require us to hold that this point is well taken.

The city secretary under the charter of the city of Pampa was required to perform certain ministerial acts prerequisite to the presentation of the petition to the commission. This he did. The petitions provided they must include the number of voters heretofore mentioned, which required of the commission an interpretation of the recall section of the charter as to whether it was thirty per cent of the voters of each ward or thirty per cent of the voters of the city as a whole. The acts of the city secretary were clearly ministerial while those of the commission were just as clearly discretionary. Mandamus will not lie in such instances but only where the acts sought to be enforced are ministerial in character or require discretionary acts of little substance. 37 T.J.2d Sections 18 and 19 beginning on page 617 and cases there cited. The difficulty comes in distinguishing between those which are ministerial or require little discretion and those requiring the performance of judicial functions or discretion of a material nature. Miller v. State, Tex.Civ.App., 53 S.W.2d 838 (writ refused); Young v. State, Tex.Civ.App., 87 S.W.2d 520 (writ refused).

The San Antonio Court of Civil Appeals in Boynton v. Brown, 164 S.W. 893, 895 (writ refused) has said:

“Under the operation of this rule, whenever the law directs an officer or officers to order an election when a certain number of qualified voters have joined in a petition for the same, it is made the duty of the officers to ascertain whether the requisite number of voters have joined in the petition, and whether they are qualified, and mandamus will not lie to control them in the exercise of that duty; but the officers upon whom is devolved the duty of calling the election will be allowed to exercise their own judgment. Their action must be based upon reason and fairness, however, and not be impelled by fraud, caprice or unfairness.”

The fact that the election for recall of the mayor was promptly ordered seems to preclude any thought that the refusal to call the elections for recall of the commission was impelled by fraud, caprice or unfairness.

To illustrate the very fine distinction that has been drawn by our courts in determining when mandamus will lie to compel city officials to call elections for recall, our court in quoting with approval from another authority in Miller v. State, supra, has said:

“ ‘Although mandamus is the appropriate remedy to compel the performance of a duty which is plain, positive, and ministerial in character and clearly imposed by law, it does not necessarily follow merely because the duty is discretionary or that the element of discretion exists in part, that mandamus will not lie. The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction; that is, upon facts sufficient to support his action.’ ”

Mandamus was allowed in that case but that commission had no such discretion or judicial function to perform as the Pampa city commission had in the instant case. We believe the Pampa commission exercised its discretion reasonably and within its jurisdiction, upon facts clearly sufficient to support its action. The discretion it was called upon to exercise would immediately prompt disagreement among lawyers, just as it did in the instant case. In other words, the element of discretion was one of material substance.

The case from which we have just quoted was announced since 1927 so we must give it the same consideration as cases from the Supreme Court. 15 T.J.2d 600 Section 139; City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 312; Travelers Insurance Company v. Newsom, Tex.Civ. App., 352 S.W.2d 888, 894.

We believe what we have said is sufficient to dispose of the mandamus question; i. e., that mandamus is not a proper remedy under the facts of this case. However, appellants also urgently insist that petitioners for the elections had no such justiciable interest as to entitle them to require the commission to call the elections. All counsel agree that City Council of Wichita Falls v. Coker, Tex.Civ.App., 93 S.W.2d 459 (NWH) so holding has no material distinction to our case on that point. We are so firmly convinced that we have properly disposed of the case in what we have already said, we do not wish to discuss the justiciable interest question except to say that if the Coker case properly announces the law then appellants are also correct on that question. We do not deem it necessary to hold whether it does or does not and are satisfied to leave that question to the Supreme Court.

Accordingly, the judgment of the lower court is reversed and rendered.

       Newt Secrist, commissioner of Ward 2 has resigned pending appeal and is no longer a party in his official capacity or otherwise.

      . The Miller case is one of those cited under the statement in 37 T.J.2d above mentioned.


author: WILSON, Justice.

text:
    Carroll T. HEROD et al., Appellants, v. GRAPELAND JOINT ACCOUNT et al., Appellees.
    No. 4103.
    Court of Civil Appeals of Texas. Waco.
    March 28, 1963.
    Rehearing Denied April 18, 1963.

      Thompson, Knight, Wright & Simmons, C. Douglass Forde, Jr., Dallas, Adams & Granberry, Crockett, for appellants.
    Trueheart, McMillian & Russell, P. H. Swearingen, San Antonio, Reeves & McDonald, Palestine, LeVoy Musick, Houston, J. Burleson Smith, San Antonio, J. B. Sal-las, Nat Patton, Crockett, for appellees.
   WILSON, Justice.

Plaintiffs’ action for recovery of a four-fifths undivided interest in oil, gas and other minerals in a 142 acre tract and seeking an accounting, asserted termination of a lease upon cessation of production. Defendants answered that the lease continued to be effective by unitization of the 142 acres with other leased lands. The court sustained appellees’ motion to withdraw the case from the jury and render judgment for them. The appeal requires construction of a contract consisting of an oil and gas lease, a division order agreement, and mineral deeds contemporaneously executed by spouses, Herod, Finch and Jones, in which Grapeland’s assignor was grantee and lessee.

The lease, jointly executed by Herod, Finch and Jones in February, 1940, described 893 acres comprising the Herod 142 acres, the Herod-Finch 319 acres, Herod-Finch- 137 acres and the Jones 295 acres in four separately owned tracts located in the Grapeland Gas Field area. It was for a 10-year primary term “and as long thereafter as oil, gas or other mineral is produced from said land hereunder.” It obligated lessee to drill to test the Woodbine sand, and to drill a second well if minimum potential was not realized. It contained numerous other provisions not considered material or controlling, and these:

“11. In the event the acreage now or hereafter embraced within the terms of this unit lease is productive of gas, withdrawal thereafter shall be effected fairly among the several unit leases owned and/or operated by Lessee in> the Grapeland area. In the event a commercial gas well is completed upon this lease, lessee agrees to process or cause to be processed, the gas production from said land thru what is known as a recycling plant the construction of which shall be commenced on or before thirty days after the completion of the said commercially productive well. Lessee shall return the gas remaining after such processing to the formation within the Grapeland field from which it was produced either in well or wells on or off this lease or in the Grapeland field.”

The Unit Division Order Agreement recited Grapeland was constructing a recycling or repressuring plant in the Grape-land Field “to process gas produced from properties which have been unitized into what is known as the Herod, Finch and Jones unit lease”, describing the same four tracts. It authorized Grapeland “to connect with the well or wells now or hereafter located upon said premises, and to take, receive, process, and dispose of all gas produced therefrom during the continuance of the existing oil and gas leases embracing the lands above described”, and stated, “for said purpose, we do hereby respectively assign and convey said gas .to said Company, its successors and assigns”.

The division order provided the unit lease should be credited for the account of the royalty interest of Herod, Finch and Jones when products were recovered, saved and marketed after monthly determination of condensate content by specified field tests; that accurate meters should be maintained at “the wells located on said premises to accurately measure said gas, and the Company shall have the right to commingle said gas and the products therefrom either in said plant or before the point of entry therein, with other gas processed through such plant,” whereupon the condensate recovered from all gas actually processed, together with resulting residue gas, should be “apportionately attributable to respective sources of production.” It provided unsold residue gas remaining from raw gas, after processing, should “be returned to the producing formation in this unit lease or any other leases or lands in the Grapeland Field. And if a well or we'ls in thU Unit Lease be used for input purposes, Company may return therein gas produced from any of said leases with which said plant may be connected”, and “Should there be a market for residue gas, Company is authorised to sell the same at the plant and if such sales are made by Company, said unit lease shall be credited with its proportionate part of the net proceeds from the sale of such residue gas”.

The mineral deeds conveyed to Abell, Grapeland’s grantor, an undivided interest in oil, gas and other minerals in and under the described tracts, and provided such interest “shall not for a period of ten years from date hereof be unitized or combined with minerals located on other land or under separate oil and gas leases without the written consent of each, except as provided in the joint lease” contemporaneously executed by Herod, Finch and Jones.

We have attempted to quote or italicize the language emphasized by the parties as significant.

Grapeland drilled and completed a producing gas well, designated as its No. 1, on the Herod-Finch 137 acres in July, 1940. It completed its No. 2 producing gas well on the same land in June, 1941. No. 2 ceased production in 1945; No. 1 in 1951. There was no production from any land included in the Herod-Finch-Jones unit lease from January, 1951 until January, 1958, when well No. 5 was completed on the Jones tract. In October, 1958 Grapeland completed a continuously producing gas well, its No. 6, on the Herod 142 acres.

Grapeland held four other unit leases in the Grapeland Gas Field under recorded contracts containing provisions similar or identical to that under construction. This suit was originally filed against Grape-land, not as one to recover title to the J^ths interest and an accounting for production, but as an action for adjustment of royalty interests based on alleged wrongful inclusion of the Jones 140 acres in acreage proportions of the unitized lease. The form of action was changed after completion of Grapeland No. 6 to an action for cancellation of the lease, based on the contention it terminated in 1951 with cessation of production. The father made no complaint of unitization, and during his lifetime is alleged to have received over $16,000 in royalties known by him to come from wells from Grapeland’s other unit leases over a period of nearly 20 years. The father had sued prior lessees of a portion of the Herod 142 acres for damages for failure to unitize, alleging that all his other leases were included in pools or units. These facts are the basis for Grapeland’s claim of ratification and estoppel, which appellants meet with a claim of homestead. Under our view of the case it is unnecessary to pass on these matters. Another point concerning evidence thereby becomes immaterial.

Appellants summarize the questions involved as being whether the unit lease, mineral deed and division order establish a term for the unit lease different from that stated in its habendum clause. They assert that the three instruments do not authorize unitization or pooling with other acreage; that lessee may not accomplish it by its unilateral conduct; and that when production on the Herod-Finch-Jones lease ceased, the lease terminated.

Grapeland’s position is that, although there was no production on that unit lease from 1951 to 1958, the instruments authorize unitizing this lease with Grapeland’s four other unit leases in the field which were also connected with its recycling plant, in so far as it relates to reinjected residue gas; that it was so unitized under the contract, and the term thereafter extended by continuous withdrawals of reinjected residue gas from other unit leases, during which the Herod-Finch-Jones unit lease was credited with its proportionate part of the proceeds. It says that since all five of its unit division order agreements conveyed and assigned to it all gas in place, and the instruments provided for return of residue gas to the reservoir through wells on any of the five unit leases — as it actually was returned for storage — the lease was continued in effect by continuous allocation to it of its proportion of proceeds from gas withdrawn from the common reservoir, regardless of the well from which it was withdrawn. It asserts further that as a tenant in common under its mineral deeds, and as licensee, Grapeland had the right and duty to withdraw reinjected residue gas and account for it as provided in the unit division order agreement, crediting each of the five unit leases with its portion of the proceeds. It asserts the division order was the “written consent” required by the mineral deed as a prerequisite to unit-ization, as to dry residue gas processed, re-injected and withdrawn.

The general nature of the cycling process is outlined by Pressler, 24 Tex.L.Rev. 19 (1945); Horner, 4 Baylor L.Rev. 300; McKeon, 4th Inst. Oil & Gas Law, S.W. Legal Found. (1953) 281, 284; Myers, Pooling and Unitization, (1957) Sec. 2.03, pp. 26, 38; and see generally Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 970; Tide Water Associated Oil Co. v. Stott, (5th Cir.) 159 F.2d 174, 176, cert. den. 331 U.S. 817, 67 S.Ct. 1306, 91 L.Ed. 1835; Art. 6008b (Acts 1949) Vernon’s Ann.Tex. Stats.; Western Gulf Oil Co. v. Superior Oil Co., 92 Cal.App.2d 299, 206 P.2d 944. In 1940 cycling appears to have been a relatively novel procedure, developed rapidly by the exigencies of the war and used where there was limited market, or none, for dry gas. The process is generally described as follows: After production from a gas stratum and extraction of heavier hydrocarbon content, residue gas is returned under pressure to the reservoir by injection through input wells for storage awaiting market demand. The expanding reinjected dry gas mechanically displaces wet gas toward producing wells properly located with relation to the input wells.

The covenant against unitization in the .mineral deed is relied on by appellants as primarily controlling. This agreement, however, is qualified by the words, (a) “without the written consent of each” and (b) “except as provided in the joint lease” executed by Herod, Finch and Jones.

The latter instrument clearly recognizes Grapeland owns and operates “several unit leases” in the field, and obligates it to process gas production from the Herod-Finch-Jones unit through a cycling plant to be constructed. It requires Grapeland to return gas “remaining after such processing to the formation within the Grapeland Field from which it was produced”; hut it does more; it contemplates returning such residue to the formation regardless of whether it was produced “in wells on or off this lease.”

The Unit Division Order Agreement expressly recites contemplated construction of a cycling plant to process gas produced from the Herod-Finch-Jones lease lands, and authorizes Grapeland to connect with wells thereon and to process and dispose of the gas during continuance of the lease, assigning and conveying the gas to Grape-land. There is express authorization to commingle the residue with other gas in, or before entry to the plant. The proceeds are to be “apportionately attributable to the respective sources of production.”

Grapeland is granted free use of all residue gas for plant operation. Unsold residue is directed to be returned to the formation in this “or any other leases or lands in the Grapeland Field.” Grapeland is authorized to use Herod-Finch-Jones wells for input purposes, and to return therein “gas produced from any of the leases with which said plant may be connected.”

The division order clearly provides for communal sale of all residue gas if a market exists, and requires that the Herod-Finch-Jones unit lease be “credited with its proportionate part of the net proceeds.” It appears preparations for competitive cycling operations by other operators were then being made in other portions of the area.

It is obvious from the face of the agreement that the parties contemplated the cooperative processing, development, conservation and marketing of residue gas through the cycling process; the storage of it, pending a market, by commingling before or after injection with gas from other sources; the use of the reinjected residue to facilitate production of wet gas, and withdrawal of the commingled residue from all combined sources for sale. The entire contract necessarily contemplated possible early displacement of wet gas and loss of production from a particular well or area by virtue of the physical laws inherent in the recycling process agreed upon. It also anticipated, we think, that forced migration of unprocessed wet gas resulting from cycling, and reinjected residue gas, might eventually return a portion of that previously displaced or reinjected to a position in the reservoir under the Herod, or other tracts, where the drilling of new productive wells would be required to capture it.

Although appellants’ position is persuasive, in our opinion the parties manifestly intended, and there was effected a unitization of the Herod-Finch-Jones unit lease with other Grapeland leases for these expressed purposes, and continued operation thereunder prevented termination of the lease for such purposes at the expiration of the primary term, or cessation of production on the unit lease lands. Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914, 916; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 475, 476; and see Lone Star Gas Co. v. Murchison, Tex.Civ.App., 353 S.W.2d 870, writ ref. n. r. e.; Horner, Secondary Recovery Methods, 4 Baylor L.Rev. (1952) 296; Hoffman, Voluntary Pooling and Unitization (1954) 231, 243; McRae, Granting Clauses, 9th Inst. Oil & Gas Law, Southwestern Legal Found., (1951) 42, 62; Hughes, Recycling, 10th id., (1958) 105, 116; Bounds, Division Orders, 5th id., (1954) 91, 113.

Other points are overruled.

Affirmed.

      . It is said community leases, also, were first dealt with by Texas Courts in 1940 in Parker v. Parker, Tex.Civ.App., 144 S.W.2d 303, writ ref. — Hoffman, Voluntary Pooling and Unitization (1954) 12.