author: PRESLAR, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Charles Cecil MILLER, Appellee.
    No. 5684.
    Court of Civil Appeals of Texas. El Paso.
    April 28, 1965.
    Rehearing Denied May 19, 1965.

      Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, for appellant.
    W. R. Barnes, Odessa, for appellee.
   PRESLAR, Justice.

This is an appeal from a judgment awarding maximum benefits under the Workmen’s Compensation Law of this State for total and permanent disability to appellee, Charles Cecil Miller, based on jury findings in response to special issues. The disability was found to result from an occupational disease caused by poisoning by petroleum products ■ — gas or fumes causing chronic bronchitis.

Appellee worked as a roustabout for Basin Contracting Company from 1955 until April 24, 1962, when he quit because of his health, and has not worked since. He testified that in such employment he worked at connecting up tank batteries, laying flow lines, tying in wells, and on some occasions cleaning out tanks. All of such work was in connection with the production of petroleum products, and it was his testimony that he was exposed to gases all the time that he was doing such work; that it was worse at some times than others, and that the .worst exposure was when working inside tanks to clean them. Appellee had done such oilfield work most of his life and, at the time of trial, was a man 58 years of age and his working hours with Basin Contracting Company were 7:00 to 5:00, six days a week. He testified that he began to have trouble with his breathing in 1959, spent eight days in the hospital with pneumonia, and lost two or three weeks’ work at that time. He further testified that he continued to get worse, would “choke up” and could not breathe, vomited at times, but worked steadily until he quit work on April 24, 1962, and has gone steadily downhill since that time.

By its answers to special issues the jury found that (1), appellee sustained an occupational disease by reason of poisoning by petroleum products; (2) while employed by Basin; (3) resulting in total disability; (4) produced by the disease; (5) beginning on April 24,1962; and (6) permanent. The jury also found that, (13), disability began within one year of the last injurious exposure to “such occupational disease”; (14), that such disease was due to the nature of an employment in which the hazards of such disease actually exists; was (15) characteristic of and (16) peculiar to such employment; and, (21), that Basin had notice of such disease within thirty days of the first distinct manifestation of same.

Special Issue No. 21 inquired if “Basin Contracting Company, Inc., had notice of Plaintiff’s occupational disease, if any, within thirty days after the first distinct manifestation of same?” The jury answered “It did”, and appellant questions the sufficiency of the evidence to sustain such finding, and also objected to the form of the issue and requested the court to submit it in a form inquiring whether plaintiff “gave notice” etc. We think the issue was correct as submitted. It was asked to meet the requirements of Art. 8307, sec. 4a, T.R.C.S., and the pertinent part of that Article reads:

“Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease * * *

It is readily noted that the statute does not specify that the claimant himself must give the notice. Its requirement is that there shall be, in fact, notice, actual or given, not who must give notice. The burden is on the claimant to establish the existence of such notice, and the inquiry as to whether his employers “had notice” fairly posed the question and placed the burden as to the fact to be determined.

Appellant makes the dual assertion that there is no evidence to support this finding, or that the evidence is insufficient to support it. When such dual assignment is made, we must first dispose of the “no evidence” contention by looking only to the evidence favorable to such finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. This is a question of law as distinguished from a question of fact, and thus its determination requires either affirmance or rendition, rather than remand for a new trial. Being a question of law, it is reviewable by the Supreme Court. A determination of the question of the sufficiency of the evidence is said to be a fact question in which courts of civil appeals are final, and such a determination calls for either affirmance or remand for new trial — never rendition — and it is determined by looking to all of the evidence to see if it is factually too weak to support the finding made by the jury. In the case before us, the plaintiff, his wife, and his doctor were the only witnesses (defendant rested at the conclusion of plaintiff’s evidence-in-chief), and all of the evidence in the record on the issue involved is as follows:

Plaintiff testified on direct examination:
“Q Did you ever tell Mr. Charlie Rogers about any of your problems ?
“A Oh, I told him a few.
“Q Was he ever around you when you would get sick out there when you were working, when you got sick at your stomach?
“A Well, I don’t know.
“Q Did you ever tell him anything about gas making you sick?
“A Yeah.
“Q And when did you tell him that, please, sir?
“A Oh, I don’t — I can’t recall the date.
“Q Well, tell us this, did you tell him that after you quit working out there, April 24, 1962?
“A We discussed it, yes, sir.
“Q Where abouts were you when you discussed it?
“A My house.
“Q Can you tell us whether or not Mr. Rogers came by to see you after you started staying home sick after April 24, 1962?
“A Mr. Rogers has been by several times to see me.
“Q Did he come back by pretty soon after you started staying home?
“A Well, I can’t just recall how long but it wasn’t too long.
“Q About how long was it after you started staying home sick that he came by to see you, your best recollection ?
“A Oh, I don’t know, I figure three or four weeks, somewhere along there.
“Q At that time will you tell us whether or not you had any discussion about the gas making you sick?
“A He just come by to see how I was feeling and wanted to know when I would be able to go back to work.
“Q Did you tell him at that time that the gas was making you sick?
“A I don’t recall whether I did or not.”
On cross examination plaintiff then testified further:
“Q Now you stated awhile ago, I believe, that you did not recall what you told Mr. Rogers when he came to visit you whenever that time was?
“A That’s right.
“Q And do you recall whether or not you ever told him that you were having poison trouble from gas?
“A I can’t recall whether I did or not.
“Q And did you ever tell anybody with Basin before this lawsuit was started that you had trouble with gas and with poison by gas?
“A No, sir.
“Q You answered ‘no’?
“A No, sir.
“Q Your answer is ‘no’ ? Or will you read the question back, please?
“COURT REPORTER: (Reading — Q. And did you ever tell anybody with Basin before this lawsuit was started that you had trouble with gas and with poison by gas ?)
“A No.
“Q And you never reported this, that you were claiming that you had been poisoned by gas, is that correct?
“A I didn’t, no sir.”

Plaintiff’s wife was asked on direct examination whether there was any discussion of gas making Mr. Miller sick at the time of Mr. Rogers’ visit to their home “two or three weeks or something like that after he quit work April of 1962”, and she answered that it was discussed. On cross examination she then testified that she could not remember when this discussion took place, that she did not believe that it was over five or six weeks after his quitting work, but that she did not know whether it was before or after his first visit to his doctor for this illness, which was June 18, 1962.

Charlie Rogers was a foreman with Basin. Notice to him would be notice to Basin. Texas Employers’ Insurance Ass’n v. Walker, Tex.Civ.App., 298 S.W.2d 643; Associated Employers Insurance Co. v. Burris, Tex.Civ.App., 321 S.W.2d 112. The 30-day notice period begins to run from the time of the “first distinct manifestation” of the disease. “First distinct manifestation” was not defined by the court, and has never been defined by any Texas court in the reported cases. It is for the jury to determine under the facts peculiar to each case as to when the disease reached the stage where it manifested itself so that claimant knew, or should have known, that he had an occupational disease. Some jurisdictions start the time running when disability occurs, others when diagnosis is made, and such other fixed times; but our legislature has seen fit to provide a more flexible standard. We see no error in not defining the formula in the charge, for the word “distinct” means clear, well defined; and the word “manifest” means evident to the senses. Webster’s New International Dictionary, 2 ed., unabridged. A distinct manifestation of an occupational disease, therefore, denotes that its existence is clearly evident. It should be clear to the claimant before the. loss of his right to compensation is denied for failure by him, or someone in his behalf, to take positive action within the period of time prescribed. We think that the statute means that the manifestation must be distinct to the claimant, reasonably sufficient to cause him to believe that he has an occupational disease. In the case before us, when this happened has lost much of its importance, because of the weakness of the evidence as to when notice was given. The nature of the disease, together with appellee’s history of respiratory ailments, leads to the conclusion that he could not be charged with belief that he had the disease earlier than the date he quit work. Compensation is not provided for pain and suffering, but for loss of wages, and there would be no necessity for giving notice so long as he continued to work. The more plausible date to charge appellee with knowledge of his disease would be when he decided to see a doctor, June 18, 1962. Even then there is some doubt that the doctor knew at that first examination that an occupational disease was involved, or that he so informed ap-pellee at that time. The doctor described the disease as being in an advanced stage when he first saw appellee; that it had been building up to that stage over a period of some two and one-half years through recurrent exposure to petroleum products (gases) which destroyed the mucous membrane and cilia so that appellee was unable to cough, poor drainage was promoted, and chronic inflammation in the bronchial tubes resulted.

Viewing only the evidence which is favorable to the jury finding, it cannot be said that there is no evidence to support it. We therefore overrule appellant’s contention as to “no evidence”; but we agree with appellant that the evidence is insufficient, for when all the evidence is considered, we are of the opinion that it is factually too weak. The testimony offered in support of the fact of “notice” on direct examination is vague and indefinite and, at times, unresponsive, so that the answers given amount only to an inference as to the facts inquired about. In order to prevail in his lawsuit, plaintiff had to prove that the Association or subscriber (his employer, Basin) had notice; yet he testified unequivocally (under circumstances which do not indicate that he was confused) that he did not tell anybody connected with Basin, before the lawsuit was started, that he had trouble with gas and with poison by gas. In short, our holding is that while there is some evidence of probative force when that favorable is considered alone, yet when all the evidence is considered, it is so uncertain and inconsistent as to be insufficient to support the issue and the consequent judgment. Appellant’s first point of error is therefore sustained, as to the evidence being insufficient to support the jury finding that appellant had notice of his claim of occupational disease within thirty days of the first distinct manifestation of the same.

Appellant’s tenth point of error is also sustained as to the form of the issue as submitted. The issue inquired whether disability resulted within one year after plaintiff’s last injurious exposure to such “occupational disease”. The issue followed the wording of Section 25 of Article 8306, T.R. C.S., which provides:

“The Association shall not be liable for any compensation for an occupational disease * * * unless incapacity or death results within * * * one (1) year in case of any other occupational disease, after the last injurious exposure to such disease in such employment * *

Elsewhere, Article 8306 speaks of injurious exposure to the “hazards” of such disease, and it would appear that the reasonable construction to be given Section 25 is that it, too, was intended to mean the hazards or causes of the disease, rather than the disease itself. As appellant points out, the issue is meaningless as submitted, for one having a disease would be constantly exposed to it. We think that the ultimate fact to be determined is whether the incapacity occurred within one year after exposure to that which caused it.

All other points of error have been considered, and all are overruled. The judgment of the trial court is, for the reasons above given, reversed, and the cause remanded for re-trial.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    John Norman HUTTO, Appellant, v. FANTASTIC HOMES, INC., et al., Appellees.
    No. 16629.
    Court of Civil Appeals of Texas. Fort Worth.
    April 30, 1965.
    Rehearing Denied May 21, 1965.

      Harris, Ball & Davis and Chester G. Ball, Arlington, for appellant.
    Simon, Crowley, Wright, Ratliff & Miller and Dan M. Reed, Fort Worth, for appel-lees.
   RENFRO, Justice.

The plaintiff, John Norman Hutto, brought suit against Frank B. Shoneneman, Fantastic Homes, Inc., and Southwestern Climatic Homes, Inc., for damages sustained while working as a carpenter in the construction of a home for one or all of the above named defendants.

From a judgment for defendants based on a jury verdict, plaintiff appealed.

We will refer to the corporate defendants as Fantastic and Climatic respectively. Plaintiff alleged that Shoneneman was president of both corporations and both were engaged in building residences in the City of Arlington.

No issues were submitted or requested, and no evidence was introduced, which would impose liability on defendants Fantastic or Shoneneman, hence judgment for said defendants was undoubtedly proper and therefore is affirmed.

In April of 1961, Climatic was constructing a number of houses on Skylark Street. George Newberry was field superintendent for Climatic.

Paul Thornton had a contract to “frame”, put on siding and raise the trusses on the house where plaintiff was injured.

Plaintiff had a subcontract from Thornton under which he was to “frame the house up plate high”. Plaintiff engaged and had under his supervision two employees. One was his son R. W. and the other a man named Simmons.

The trusses, made of 2x4’s, were triangular shaped, and were pre-made by Climatic and hauled to the building site on a four-wheeler trailer pulled by a pickup truck.

When a given house was ready for trusses Thornton would notify Newberry. Climatic would deliver the trusses to the particular building site. That was done on the occasion in question.

We now take up plaintiff’s testimony. He testified: In April, 1961, he was a carpenter, 59 years of age. He contracted with Thornton to “frame that house up plate high”; plate high meant to “the bottom of the roof”. He was to be paid by Thornton. The accident occurred about the middle of the day, April 21st. While eating lunch he saw the truck drawing the truss-trailer drive up in front of the house and stop. He did not remember seeing the truck or truss-trailer again. After lunch he resumed work, had worked about 30 minutes and had “cut in about 4 window braces” when the truss-trailer turned over on him. The width between the house on which plaintiff was working and the adjacent house was ten feet. There was a three foot downward slope in the ten foot space, the house where plaintiff was working being on the low side. He had not seen anybody park the truss-trailer in the area between the houses. He had no recollection of seeing any one unloading the trusses.

In a deposition prior to trial plaintiff testified the truck driver drove around to the end of the house and stopped. (Apparently that location was the same as where it was standing when it turned over. No witness placed with exactitude the location where the plaintiff was working or the trailer was parked.)

In a deposition taken in a Workmen’s Compensation case growing out of the accident, plaintiff had testified: “‘Well, Paul called us up there and wanted us to unload some trusses off of a four-wheel trailer, and there were three of us, two would carry awhile and then one of us would swap up and help get them off. * * * I had carried * * * thirty of them off * * * I just walked around over there and bent down to pick up a rig axe or something and had my back towards them, and it just turned over on me.’ ” He did not deny giving the above testimony but testified he did not remember giving such. He testified he never carried any trusses. He denied that his contract included erection of the trusses, but admitted he always helped unload trusses at Thornton’s request.

He further testified that his memory had been faulty since the accident and he really did not know whether he remembered the details of the accident or had just heard people talk about it.

R. W. Hutto, son of plaintiff and plaintiff’s employee on the particular job, testified : The Climatic driver parked the truss-trailer between the two houses. Thornton told R. W. and Simmons to unload the trusses. When the driver first arrived he asked plaintiff where he wanted the trusses. “Daddy (plaintiff) said ‘I usually take them over the front of the house or the back of the house’ * * * the driver said ‘they usually take them from the side.’ ” R. W. heard no more conversation between plaintiff and the driver. R. W. and Simmons started unloading the trusses 20 or 30 minutes later. They started unloading from the high side. They had unloaded 10 trusses when it tipped over on his father. He did not see it turn over but heard the noise. When he looked his father was under the trailer and trusses.

According to Thornton plaintiff was in charge of the crew unloading the trusses and that he, Thornton, did not give plaintiff any instructions regarding the handling of the trusses. The truss-trailer was 7 feet wide.

Newberry testified the two hciuses were exactly ten feet apart, with a two foot downgrade. Because of the width of the truck and the size of the open space the trailer necessarily hit the house on which plaintiff was working when it turned over. He did not see the accident; did see marks on the house; whatever method used to get the trusses on the house was O K with him; the trusses were 29 feet overall in length.

Other witnesses estimated the length of the trusses from 20 to 40 feet. They were loaded on the trailer point down, and, again the evidence varied, 25 to 40 were loaded on the trailer.

No complaint is made that the trailer was faulty in any respect. No contention is made that the trusses were improperly loaded on the trailer. That the trailer was parked on an incline was apparent to anyone who looked.

It was undisputed the trailer would not have turned over except for the unloading from the “high side” by plaintiff’s employees.

Plaintiff’s former employee Simmons did not testify.

The jury found in response to' issues Nos. 1, 2 and 3 that Climatic’s employees parked the truss-trailer on an incline between the two houses, that such act was negligence and a proximate cause.

Issue No. 4 was: “Do you find from a preponderance of the evidence that plaintiff Mr. Hutto did not see the trailer parked on an incline between the two houses under construction before it turned over?” The jury answered, “He did not see the trailer parked on an incline.”

In answer to issues Nos. 5, 6 and 7 the jury found Climatic’s employees failed to warn plaintiff the trailer was parked on an incline and such failure was negligence and a proximate cause.

Issues Nos. 8 through 11, conditioned on an affirmative answer to No. 4, were perilous position issues and not answered.

In answer to issues Nos. 12 and 13 the jury found that plaintiff was negligent in working between the trailer and the house and such negligence was a proximate cause of his injuries. The jury answered the damage issues with the sum of $30,000 for injuries and $1,193.55 for hospital and doctor’s bills.

The plaintiff contends the court erred in failing to predicate issues Nos. 12 and 13 on issues No. 1 through No. 8 and especially on issue No. 4, and in allowing special issues Nos. 12 and 13 to stand alone without a predicate issue as to duty; in failing to disregard the jury’s answers to special issues Nos. 12 and 13 where it had previously been established in special issue No. 4 that plaintiff had no duty.

Defendants pleaded contributory negligence on the part of plaintiff. Plaintiff did not except to the pleading.

Plaintiff did not object to the submission of issues Nos. 12 and 13. In fact, the transcript shows no objections whatever to the charge. No instructions were requested.

There was abundant evidence to support the presumed finding of the trial court that plaintiff should have known the trailer was parked where it was. According to plaintiff’s own son the trailer had been so parked a minimum of 30 minutes before plaintiff resumed work after lunch. According to plaintiff’s own testimony he had been working a minimum of 30 minutes before the accident. Plaintiff knew there was a downgrade between the two houses. He in fact estimated the incline to be steeper than did other witnesses. It is difficult to conceive how a man with no visual or physical handicaps could walk between and work between the side of a house and a large trailer within a space of 21^ or 3 feet, without knowing the trailer was there. Since the open space between the two buildings was only 10 feet, and the trailer was 6 or 7 feet wide, the space between the trailer and the house on which plaintiff was working was necessarily limited as above indicated. Plaintiff’s employees had been unloading trusses from the trailer for at least 20 minutes before the trailer overturned. As previously indicated, the trusses were long and large. The services of two men were required to unload the trusses. Approximately one-third of them had been removed from the trailer by plaintiff’s employees before the accident, all within a few feet of plaintiff, with nothing to obstruct its view.

The finding that plaintiff did not see the truck did not preclude a finding that he should have seen it. There can be no doubt the finding of negligence in issue No. 12 is supported by sufficient evidence of probative value.

Under the record in this case we believe a situation is presented which should be governed by Rule 279, T.R.C.P. The submission of issues Nos. 12 and 13 was a partial submission of the whole inquiry as to whether plaintiff was guilty of contributory negligence in working between the trailer and the house. The submission of said issues, under the record, brought any un-submitted related issue of the group within the provision for presumed findings. 20 Texas Law Review, pp. 32-40, article by J. B. Dooley; Commentaries under Rule 279 by James P. Alexander, pp. 222-3.

“Under the provisions of Rule 279, Texas Rules of Civil Procedure, an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested. When some but not all of a cluster of issues necessary to sustain an independent ground of recovery or defense are given and answered by the jury without objection or request, the trial court may make written findings on omitted issues raised by the evidence. If no written findings are made, the omitted issues are deemed to have been found by the court in such manner as to support the judgment.” Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup., 1963).

Since sufficient issues were submitted to the jury to partially present defendants’ claim of contributory negligence, no other issue was requested or submitted, and no request was made after verdict for written findings on said omitted issue, it is now to be regarded as having been found by the court in defendants’ (appellees’) favor. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959).

The judgment of the trial court is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    Dan HATTER et al., Appellants, v. John WORST et al., Appellees.
    No. 7447.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1965.
    Rehearing Denied April 26, 1965.

      C. D. Bourne, Jr., Dumas, for appellants.
    Eli Willis; Lovell & Lyle, Dumas, for appellees.
   DENTON, Chief Justice.

Appellant Dan Hatter and fourteen other resident citizen taxpayers and voters in Precinct One of Moore County, Texas, brought suit against the County Judge and the members of the Commissioners Court of that county seeking a judgment to reapportion or redistrict the county commissioners precincts. Hatter, the duly elected commissioner of Precinct One, finds himself in the dual capacity of both plaintiff and defendant. Upon motion by the defendants below, the trial court rendered a summary judgment denying all relief sought by the plaintiffs.

Appellants seek to have Moore County’s four commissioners precincts reapportioned on the basis of “substantial numerical equality.” They alleged Precinct One contains more than seventy-five per cent of the population of the county while the remaining three commissioners precincts contain less than twenty-five per cent of the county’s population. It is asserted repeated efforts had been made to obtain a reapportionment, but the Commissioners Court “unjustly, unfairly, and arbitrarily failed and refused to reapportion the county into four nearly equal precincts based on population or any other basis more equal or equitable than the existing apportionment.” It is further alleged the plaintiffs below have exhausted all administrative remedies to secure the relief sought.

The defendants timely filed a motion for summary judgment to which was attached an affidavit of their attorney asserting there was no material issue of fact and that the administrative remedy available had not been invoked or exhausted. This affidavit quotes from the Commissioners Court’s minutes to the effect that on three occasions appellant John White and other named citizens appeared before the Commissioners Court to discuss redistricting. On one occasion the court was asked to advise the citizens the number of signatures that would be required on a petition for the court to take action. The court took no action on the request. On another occasion Hatter made a motion that one man from each precinct be appointed to “explore the possibility of redistricting Moore County in a fair and equal way.” The motion received no second. Hatter made the same motion at a subsequent Commissioners Court meeting but it received no second. On March 11, 1963, Hatter “made a motion that the court recess for the purposes of him and ten other men filing a redistricting suit against the Commissioners Court * * * on the basis of the numerical inequality, unfair representation, and on the basis that his motions are not heard or considered.” After some discussion this motion received no second. By supplemental motion and affidavit appel-lees stated an additional meeting was held where the question of redistricting was mentioned. On March 12, 1963, the Commissioners Court’s minutes show Hatter “made a motion that the county be redistricted. There was no second to his motion, but some discussion was had concerning the problem of redistricting.” Plaintiffs below filed an unverified answer to the motion for summary judgment, but filed no opposing affidavit.

This failure to file opposing or counter affidavits is not necessarily fatal. Summary judgments are not granted by default but upon the movant’s discharge of his burden to show the absence of material fact issues. If the movant’s motion for summary judgment and affidavits present only a question of law there is no necessity to file a counter affidavit. Couey v. Arrow Coach Lines, (Tex.Civ.App.), 288 S.W.2d 192. By the same token, if the movant’s pleadings or affidavits indicate a fact issue does exist there is no basis for a summary judgment even though there is no counter affidavit. Under such circumstances the opposing party may rely on the pleadings and affidavits in the record even though he has filed no counter affidavit. Freeberg v. Securities Investment Co. of St. Louis, (Tex.Civ.App.), 331 S.W.2d 825, (Error Refused). In passing upon a motion for summary judgment all doubts as to the existence of a fact issue of material fact must be resolved against the moving party and the opposite party is entitled to the benefit of any reasonable inference which can be drawn in his favor. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

The summary judgment was granted solely on the ground “the plaintiffs had failed to exhaust their administrative remedy.” The commissioners courts of the various counties are the only bodies with the authority to divide or redivide commissioners precincts. Art. 5, Section 18 of the Texas Constitution, Vernon’s Ann.St. provides in part:

“Sec. 18. Each organized county in the State now or hereafter existing, shall he divided from time to time, for the convenience of the people, into precincts, not less than four and not more than eight. Divisions shall be made by the Commissioners Court provided for by this Constitution. In each such precinct there shall be elected one Justice of the Peace and one Constable, each of whom shall hold his office for four years and until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8,000 or more inhabitants, there shall be elected two Justices of the Peace. Bach county shall in like manner he divided into four commissioners precincts in each of which there shall he elected hy the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court.” (Emphasis Added)

Under this record there is considerable doubt as to whether appellants exhausted their administrative remedy. We are not prepared to hold as a matter of law that they failed to do so. Appellees’ affidavits recite among other things that appellant Hatter “made the motion that the county be redistricted.” Appellees take the position this was in fact no motion in that it contained no guide lines upon which the Commissioners Court could act. From this record it can not be ascertained whether the minutes reflect the exact language of Hatter’s various motions on the subject of redistricting. The clerk may have paraphrased the motions and the other proceedings referred to. Whether or not this be so, we do not believe a prerequisite to exhausting an administrative remedy requires a detailed redistricting plan be included in an initial motion. A division of the county into four commissioners precincts “from time to time, for the convenience of the people” is not and can not be an exact process whether it be based on population, property valuations, geographical area, or a combination of these factors. Neither the Constitution nor statutes specifically provide redress for qualified citizens who seek a redivision of their county’s commissioners precincts. It has been held a writ of mandamus is not available to compel redistricting of commissioners precincts for the reason there is no statutory or Constitutional provision imposing upon a commissioners court the duty of rearranging the boundaries of the commissioners precincts. Lewis v. Harris, (Tex.Civ.App.), 48 S.W.2d 730, (Error Refused). However, mandamus is an extraordinary remedy and will not lie to control actions of officials upon matters involving exercise of discretion or judgment. Lewis v. Harris, Supra. A writ of mandamus was not sought in the instant case. In discussing a similar question the San Antonio Court of Civil Appeals in Dubose v. Woods, 162 S.W. 3, held:

“ * * * we have no power, nor has the district court, to make the districts, as the commissioners’ court has a discretion in the matter which will not be interfered with by the courts when exercised in a reasonable and fair manner. But until the division of the county into precincts is accomplished in a reasonably fair and just manner, with due regard to the convenience of the people, the courts will not hesitate to grant relief.”

Even though the commissioners court is under no absolute duty to rearrange the boundaries of commissioners precincts from time to time for the convenience of the people, we can not say as a matter of law qualified citizens have no remedy under proper circumstances. Under this record various motions concerning the redistricting of commissioners precincts were made by appellant Hatter. None of the motions received a second and no action was taken on the several requests made by citizens. In the light of these admitted facts it is difficult to see how appellant Hatter or the other interested citizens could have proceeded in any other manner. We are of the opinion and so hold, the pleadings, motions, and affidavits do raise a material fact issue as to whether or not plaintiffs below did exhaust their remedy so as to confer jurisdiction on the trial court.

Even though we be mistaken in the view the record raises a material issue of fact, we believe the trial court erred in rendering a summary judgment in the state of this record. As stated the summary judgment was based solely upon the ground the plaintiffs below had failed to exhaust their administrative remedy. The so-called doctrine of exhaustion of administrative remedies applies only to administrative agencies, and then only where there are statutory requirements therefor. 1 Tex. Juris.2d, Administrative Law, Section 37, and cases therein cited. The Constitution and statutes give the citizens seeking the redivision of commissioners precincts no administrative remedy whatsoever. It is firmly established that a summary judgment is proper not only when there is no issue as to any material fact but the movant must be entitled to a judgment as a matter of law. Zapffe v. McElroy, (Tex.Civ.App.), 364 S.W.2d 299; Drake v. First National Bank, Mercedes, (Tex.Civ.App.), 254 S.W.2d 230. We therefore conclude the defendants below, the movants, were not entitled to judgment as a matter of law where such judgment was based on the ground the opposing party had not exhausted their administrative remedy.

The judgment of the trial court is reversed and the cause is remanded for a hearing on the merits.


text:
    Kenneth CLINE, Appellant, v. SOUTHWEST WHEEL & MFG. COMPANY, Appellee.
    No. 7456.
    Court of Civil Appeals of Texas. Amarillo.
    April 19, 1965.

      J. R. Blumrosen, Lubbock, for appellant.
    O’Connor & Brister, Lubbock, for appel-lee.
   DENTON, Chief Justice.

This is an appeal from the order of the District Court of Lubbock County sustaining the plea of privilege filed by appellee, defendant below. Kenneth Cline filed suit against Southwest Wheel & Mfg. Company seeking to recover the amount of Federal excise taxes assessed against Cline. Cline relies on Subdivision 23 of Article 1995, Vernon’s Ann.Civ.St, to controvert the plea of privilege. The trial court Sustained the plea of privilege and ordered the case transferred to Dallas County, the location of defendant’s principal office.

In his original petition appellant alleged he executed a bill of sale whereby he sold his business known as Cline Trailer Mfg. Company to appellee; that certain debts and obligations were thereby assumed by appel-lee; that a discussion was had between the parties that Cline might owe certain Federal excise taxes by reason of operating his business; that the assumption of the possible Federal excise taxes was omitted from the bill of sale by agreement of the parties; but that appellee orally agreed to assume and become liable for the excise taxes if they were in fact assessed against Cline’s business. It was further alleged the Federal excise taxes were subsequently assessed against Cline’s business, and he seeks to recover over and against appellee for such sum.

Appellant’s only point of error contends the trial court erred in finding the appellant, plaintiff below, did not prove sufficient facts to constitute a cause of action against appellee. The material portion of Subdivision 23 of Article 1995 is as follows :

“Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county;”. (Emphasis added)

It is undisputed Cline was a resident of Lubbock County and that the defendant corporation maintained an agency or representative in such county at all times material to this case. Under the above-italicized provision of Subdivision 23 it is well established that in order for the plaintiff to maintain venue in Lubbock County it is necessary to prove by a preponderance of the evidence that he had a cause of action against the defendant and that said cause of action or a part thereof arose while the plaintiff was a resident of such county and that the defendant had an agent or representative therein. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605; Furr’s, Inc. v. Behringer, (Tex.Civ.App.), 340 S.W.2d 125; Lary v. American Indemnity Co., (Tex.Civ.App.), 297 S.W.2d 357; Texas Employers’ Ins. Ass’n v. Wagner, (Tex.Civ.App.), 288 S.W.2d 882.

The sole question is whether or not plaintiff sustained the burden imposed under Subdivision 23. The only testimony offered relative to the elements of his cause of action and that the same or part thereof arose while a resident of Lubbock County was the following testimony of Cline:

“Q. Mr. Cline, the basis generally of this lawsuit is what is set forth in your petition, is that not correct ?
A. Yes, it is.
“Q. And it arises out of this bill of sale and certain obligations you believe Southwest Wheel obligated themselves to under that, is that not correct?
A. Yes, that s true.
“Q. And I believe by your petition it’s your contention that Southwest Wheel and Manufacturing Company, the Defendant here, breached part of their obligation to you, is that not correct ?
“A. Yes, that’s true.
“Q. And when that breach occurred, or if there has been a breach, you were living in Lubbock and they had an office out here at 1501 East Broadway here in Lubbock, is that not correct?
“A. Yes, sir.
“Q. And it’s on the basis of this contract that you had back with them in February of 1963 that you’re basing your lawsuit on, is that not correct ?
"A. Yes, sir.”

No other testimony was offered to support plaintiff’s cause of action against the defendant. All that can be said for Cline’s testimony is that it makes reference to the petition and bill of sale and that his claim is based on these instruments. Pleadings, including sworn pleadings are hearsay. Such evidence has no probative force even when admitted without objection. Wood v. Self, (Tex.Civ.App.), 362 S.W.2d 188. Appellee’s pleadings and the attached bill of sale do not constitute evidence. Wood v. Self, supra; Jones v. Womack-Henning & Rollins, (Tex.Civ.App.), 53 S.W.2d 635; Yantis v. Gilliam, (Tex.Civ.App.), 62 S.W.2d 173. We are of the opinion appellant wholly failed to prove a cause of action against the defendant and is therefore not entitled to maintain venue in Lubbock County under Subdivision 23 of Article 1995, V.A.C.S.

The judgment of the trial court is affirmed.


text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. Reynaldo O. RENDON, Appellee.
    No. 7455.
    Court of Civil Appeals of Texas. Amarillo.
    March 29, 1965.
    Rehearing Denied April 26, 1965.

      Key, Carr & Clark, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   DENTON, Chief Justice.

Reynaldo O. Rendon, plaintiff below, recovered judgment against Great American Insurance Company for total and permanent incapacity in a workmen’s compensation case. The jury found it would not result in manifest hardship if Rendon were not paid a lump sum, and the judgment provided for the unaccrued installments to be paid in weekly installments of $35.00. The judgment was entered April 1, 1964. On May 8, 1964, plaintiff filed a motion to enter a judgment nunc pro tunc, and after notice and hearing such judgment was entered on June 12, 1964. The nunc pro tunc judgment provided for the $35.00 installments to be made by two checks: one check to be made payable to Rendon in the amount of $24.50 and the other check in the amount of $10.50 to be made payable to Splawn & Maner, attorneys for Rendon, and to be mailed directly to the respective payees each week.

The original judgment provided for the weekly payments to be payable jointly to Rendon and the attorneys and allowed the attorneys an undivided 30% of the total amount recovered as authorized by Article 8306, Section 7d, Vernon’s Ann.Civ.St. The nunc pro tunc judgment was identical to the original judgment except for the addition of the following paragraph:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant make the $35.00 per week check for 345 weeks into two checks. One check will be for the sum of $24.50 which shall be made payable directly to Plaintiff, Rey Rendon, and mailed to his home address. The other check shall be made in the sum of $10.50 and shall be made payable directly to Splawn & Maner, Attorneys at Law, and shall be mailed to P. O. Box 1437, Lubbock, Texas.”

The sole question to be determined is whether or not the trial court had authority to enter the judgment nunc pro tunc of June 12, 1964. Appellant contends the nunc pro tunc judgment placed additional burdens on the defendant and that it altered the rights of the parties. We are unable to agree. The substantive rights of the parties were not altered in any way. It can not be seriously argued appellant’s liability was increased nor were claimant’s or his attorneys’ benefits diminished or increased. The nunc pro tunc order simply clarified the method of payment. Neither do we consider the writing and mailing of two checks weekly instead of one an undue burden. The parties’ substantive rights and liabilities were set out in identical language in both instruments. The nunc pro tunc judgment was not inconsistent with the adjudication already made, nor was it a revision of the original judgment.

It is well settled that a court has the inherent power to correct a judgment by entry nunc pro tunc so as to properly recite the effect of the court’s judgment. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Knox v. Long, 152 Tex. 291, 257 S.W.2d 289; Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148; Rules 316 and 317, Texas Rules of Civil Procedure. We conclude the nunc pro tunc judgment more clearly spelled out the true effect of the original judgment, and that the trial court was authorized to enter it.

The judgment of the trial court is accordingly affirmed.


author: MCDONALD, Chief Justice.

text:
    Arnold SMITH, Appellant, v. Lee O. COLLINS, Guardian of the Person and Estate of Mrs. S. W. Collins, Appellee.
    No. 4341.
    Court of Civil Appeals of Texas. Waco.
    April 15, 1965.
    Segelquist & Lasof, Pearland, for appellant.
    Little, Zorn & Girardeau, Joseph R. Zorn and Monte D. Lawlis, Baytown, for appel-lee.
   MCDONALD, Chief Justice.

This is an appeal from a summary judgment setting a deed aside on the ground of mental incompetency as a matter of law, of the grantor Mrs. S. W. Collins.

Plaintiff Lee O. Collins, Guardian of Mrs. S. W. Collins, filed this suit to set aside a deed Mrs. Collins executed on July 21, 1963, conveying 126.9 acres of land, of a value of approximately $100,000 to defendant Arnold, for a $10 consideration. Plaintiff alleged the ward was mentally incompetent on the date of the execution, and prayed for cancellation of the deed. (The pleading shows Mrs. Collins was adjudged mentally incompetent on December 4, 1963, and on such date plaintiff was appointed her guardian).

Defendant answered by general denial.

Plaintiff thereafter moved for summary judgment, attaching 8 affidavits from Mrs. Collins’ 2 doctors, housekeeper, banker, minister, attorney, and 2 close friends; all of which affidavits detailed Mrs. Collins’ actions, and expressed the opinion that on July 21, 1963 she was not mentally capable of knowing or understanding the nature and effects of her acts or of managing her affairs.

Defendant filed answer to Motion for Summary Judgment asserting that there were material issues of fact for determination, and attached his own affidavit which stated that on July 21, 1963 Mrs. Collins was of sound mind and capable of understanding the nature and consequences of her acts.

The Trial Court granted plaintiff’s motion for Summary Judgment and set the deed aside.

Defendant appeals, contending the Trial Court erred in granting Summary Judgment and that a genuine issue of material fact was presented as to the mental competency of Mrs. Collins at the time she executed the deed on July 21, 1963.

We sustain defendant’s contention. Plaintiff’s affidavits all express the opinion that Mrs. Collins was of unsound mind on July 21, 1963; (and any affidavit that a person was of unsound mind would be an opinion).

Opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345.

Moreover, it is the duty of the court hearing the motion for summary judgment to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

Defendant’s affidavit was that Mrs. Collins was of sound mind on the date she executed the deed.

For the Trial Court to render summary judgment that Mrs. Collins was of unsound mind, it of necessity weighed the evidence and determined its credibility, thus trying the case on the affidavits.

The record presents a fact issue as to Mrs. Collins’ mental condition on July 21, 1963.

Reversed and remanded.


author: CHADICK, Chief Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. George W. TURNER, Appellee.
    No. 7624.
    Court of Civil Appeals of Texas. Texarkana.
    April 20, 1965.
    Rehearing Denied May 11, 1965.

      Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Wheeler, Watkins, Hubbard & Patton, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a Workmen’s Compensation Law case. Compensation was awarded a workman plaintiff by the judgment of the trial court and the judgment is affirmed.

Conduct prejudicial to the appellant, ascribed to certain jurors and the jury as a whole, said to have occurred in the course of jury deliberations, is the error relied upon for reversal. When an issue of fact is presented by the evidence offered to prove jury misconduct, and the issue is decided by the trial judge, this court is bound by the trial court’s finding. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961); Appellate Procedure in Texas, Sec. 17.16 “Jury Misconduct”. All parties grant that this rule should be applied when pertinent.

The compensation carrier at the hearing on its motion for new trial tendered the testimony of two jurors. From this course it was shown that as the jury assembled for deliberation an unidentified juror remarked in substantially this language: “Well, let’s give this man all that he asks for. Let’s just find out how to do it.” Subsequently another juror unnamed by the witnesses expressed his opinion that a person could not obtain anything from a compensation insurer unless a law suit was brought. Still another juror, name not stated, was heard to avow that he knew of other persons having similar hurts that were permanently incapacitated. By way of opposition, denial and explanation, the testimony of the jury foreman and three other jurors was offered by counsel for the workman. In substance they testified either that they did not hear or did not recall any of these utterances. These jurors agreed that the remarks and conversations under investigation could have occurred without their knowledge, as several different conversations were frequently in progress at the same time with much overlapping of speech and expressions. Also, that their attention could have been diverted from such talk in some other manner. They remained positive in their testimony, however, that they had the same opportunity to hear as all other jurors, and did not hear and had no knowledge of the occurrences under investigation.

The testimony and circumstances shown raise a question of fact to be resolved by the trial judge. Dallas Transit Company v. Newman, 380 S.W.2d 818, (Tex.Civ.App.1964 dism’d). A trier of the facts might reasonably conclude that when several truthful men in position to hear remarks or conversations fails to hear them, the claimed expressions were probably not made. The trial court’s judgment decided the fact issues against the appellant. Such findings will not be disturbed. Sullivan v. Lydick Roofing Company of Houston, 378 S.W.2d 419, (Tex.Civ.App.1964, writ ref., n. r. e.); Doran v. Eaton, 376 S.W.2d 367 (Tex.Civ.App.1964, writ ref., n. r. e.).

Approximately thirty minutes before the jury reported its verdict the bailiff handed the trial judge this note, to-wit:

“Your Honor: Can we answer issues Nos. 1 and 2 ‘No’ and yet give the plaintiff total and permanent disability?
“H. L. Rosser, Foreman.”

The court answered by referring them to the charge in their possession. One of the two jurors first mentioned above testified that a consensus was reached that the injured workman should have a recovery for total and permanent incapacity and the special issues would be answered to that end. His testimony does not detail factual occurrences in this respect; it is merely a statement of his opinion. The compensation carrier would support the jurors’ opinion by the inferences that might be drawn from the jury’s note to the presiding judge, the conversations and statements already discussed, and the alacrity with which the verdict was returned. There is nothing conclusive in all this that the jury agreed to or acted in predesigned concert to assure a preconceived judgment when answering the issues; or were actuated by improper or illegal motives. As the record stands, there is no evidence that the jury did not answer the issues on the basis of the facts as they found them to be without regard to the effect their answers would have on the judgment.

On reaching the jury room the Foreman undertook to read aloud the court’s charge. He had difficulty in pronouncing the word “preponderance”. In the midst of his effort he said he thought the word meant to ponder or think. The term was defined in the charge and the definition was read several times. There is no evidence that any other juror had difficulty either with the pronunciation or meaning of the word. This slight aberration on the part of the Foreman, which appears to have been disregarded or corrected to the satisfaction of the jury, is not an event so baleful as to require reversal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943) ; Rogers v. Stimson Contracting Company, 373 S.W.2d 548 (Tex.Civ.App.1963, no writ).

When the record is considered in its entirety, it does not appear that the several errors complained of individually or in gross were calculated to cause and probably caused the rendition of an improper verdict in the case. Rules 327 and 343, Vernon’s Ann.Texas Rules. Neither does the great weight and preponderance of the evidence require the judgment be set aside. The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas, Appellant, v. The BRITISH-AMERICAN OIL PRODUCING COMPANY, Appellee.
    No. 11263.
    Court of Civil Appeals of Texas. Austin.
    March 24, 1965.
    Rehearing Denied April 28, 1965.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., Austin, for appellant.
    Jack Corman, R. W. Shytles, Dallas, Clark, Thomas, Harris, Denius & Winters, Sander W. Shapiro, Austin, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   ARCHER, Chief Justice.

Plaintiff sued defendant for a refund of $3,866.79 tax paid under protest on account of a written contract dated July 26, 1961, before the effective date of the Act, between International Business Machines Corporation (hereinafter referred to as IBM), as seller, and plaintiff, as purchaser, for the sale of certain tangible personal property consisting of three IBM machines. Plaintiff also pleaded that the tax as applied to it is invalid and also an exemption from the tax was claimed by plaintiff under Article 20.04(H) of said Act, which provides that there are exempted from such taxes the receipts from the sale, use or rental of, and the storage, use or other consumption if the property is “used for the performance of a written contract entered into prior to the effective date of the act” (which date would be September 1, 1961).

Motions for summary judgment were filed by the respective parties and were heard by the court, plaintiff’s motion granted and judgment entered for the amount sued for. The defendant’s motion was overruled.

The Articles referred to are in Chapter 20, Title 122A, Taxation-General, R.C.S., as amended by Chapter 24, p. 71, Acts of the First Called Session of the 57th Legislature, known as the Limited Sales, Excise and Use Tax Act.

The question is whether plaintiff is liable for a tax under Article 20.01 et seq., Chapter 20, Title 122A.

The Statute involved, Article 20.04(H) reads as follows:

“Written Contracts and Bids Executed Prior to the Effective Date of this Chapter. There are exempted from the taxes imposed by this Chapter the receipts from the sale, use or rental of, and the storage, use or other consumption in this State of, tangible personal property (i) used for the performance of a written contract entered into prior to September 1, 1961, (ii) pursuant to the obligation of a bid or bids submitted prior to September 1, 1961, which bid or bids could not be altered or withdrawn on or after that date and which bid or bids and contract entered into pursuant thereto are at a fixed price not subject to change or modification by reason of a tax imposed by this Chapter. * * *
“Provided, however, that notice of such contract or bid by reason of which an exclusion is claimed under this Section (H) must be given by the taxpayer to the Comptroller on or before the lapse of one hundred and twenty (120) days from August 16, 1961.”

The appeal is founded on 17 points assigned as error by the trial court in granting the summary judgment, because there is a valid law requiring the payment of the tax, and the Tax Act does not violate either Sections 16 or 19 of Article 1 of the State Constitution, Vernon’s Ann.St., and does not violate Section 10 of Article 1 of the Constitution of the United States, and that the motion, pleadings of both parties, affidavits and stipulations show as a matter of law that plaintiff is liable for the tax, and the record as a whole shows that plaintiff did not use the machines for the performance of a written contract, and because the prior contract included the sales contract between plaintiff and IBM, and because the plaintiff did not use the machines to perform a written contract within the meaning of the Statute, but only used them in plaintiff’s accounting procedures.

Appellee asserts that the plain language of Article 20.04(H) (i) exempts receipts from the sale * * * of tangible personal property * * * used for the performance of a written contract entered into prior to September 1, 1961, provided notice is given; and that the words of the Article not being ambiguous there is no need to, and a court will not assume to construe or interpret the Statute, citing State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279, Tex. Sup.Ct. and City of Abilene v. Meek, Tex.Civ.App., 311 S.W.2d 654, er. ref.

The parties entered into a stipulation as follows:

“In order to expedite the trial of the above entitled and numbered cause, the parties hereto agree as follows:
“1. Plaintiff, the British-American Oil Producing Company, after November 16, 1961, the date of the installation and delivery of the computer machines which is the subject of the contract in issue in this case has used said computer machines in its accounting procedures in the conduct of its business.
“2. After installation and delivery of the computer machines, as aforesaid, Plaintiff did not use the same in connection with any written contract entered into by Plaintiff with any person, firm or corporation prior to September 1, 1961, other than the contract which is the subject of this suit.”

In disallowing the claim for refund the Comptroller stated:

“The taxpayer, British-American Oil Producing Co., purchased a computer system. The contract was entered into prior to September 1, 1961. Notice of the existence of the contract was tendered to the Comptroller’s Office within the statutory 120 day period, to-wit: December 13, 1961. A tax was assessed and paid in the amount of $3,866.79 including penalty and interest. British-American Oil Producing Co. properly filed application for refund on August 23, 1963.
“HOLDING: The Comptroller’s Office is of the opinion that the tax was due and payable and that the application for refund should be disallowed. The reason for this holding is that the taxpayer used the computer system in a manner other than for the performance of a written contract. The contract was entered into prior to September 1, 1961, but the contract was performed in full on the date of delivery. In accordance with Attorney General’s Opinion No. C-30 and Sales Tax Ruling No. 2, the later use of the computer system was a taxable use and is subject to the use tax imposed by Article 20.03 of the Limited Sales, Excise and Use Tax Act.”

We believe that the conclusion of the Comptroller is contrary to the language of the “performance” phrase in the Statute. In ordinary business usage, property delivered under a purchase contract is property used for the performance of that contract.

The Supreme Court of Georgia in Gulf Refining Co. v. Smith, 164 Ga. 811, 139 S.E. 716, held:

“A sale is one of the uses to which property can be subjected. As relating to one’s possession, the word ‘use’ includes every purpose for which that property may be used. * * * ”

In N. Estrada, Inc. v. Terry, Tex.Civ.App., 293 S.W. 286, n. w. h., the Court said:

“Performance of an obligation under a contract consists of the doing of the required act at the time and place and in the manner stipulated by the terms of the contract, * * Wood Motor Co. v. Hawkins, Tex.Civ.App., 226 S.W.2d 487, n. w. h.

The word “used” appears many times in the Act, and is not a substitute for the word “use” as specially defined in Article 20.01 (R). Article 20.02(G) refers to tangible personal property which may be “resold, leased or rented or will be used for some other purposes.” Calvert v. Austin Laundry & Dry Cleaning Co., Inc., Tex.Civ.App., 365 S.W.2d 232, er. ref., n. r. e.

Rules of statutory interpretation are set forth in Article 10 of the Texas Civil Statutes, made applicable to the Sales Tax Law, by Article 1.01, Title 122A, Taxation-General. We do not recite the directions to the Courts as set out but do cite Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93.

The contract or agreement for the sale of IBM Machines with British-American Oil Producing Company dated July 26, 1961 at a total purchase price of $164,450.-00, and no sales tax is mentioned.

On November 16, 1961 The British-American Oil Producing Company filed its claim for an exemption from payment of taxes in the purchase of certain tangible personal property which it had purchased from IBM Corporation on the ground that paragraph (H) of Article 20.04 exempts from tax such property used for the performance of a written contract entered into prior to the effective date of the Act.

This Statute has been considered by the Comptroller and the Attorney General with a final determination that the tax is valid and appellee is liable.

The appellant cites a number of cases such as Trustees of Cook’s Estate v. Sheppard, Comptroller, Tex.Civ.App., 89 S.W.2d 1026, er. ref. and Wiseman v. Gillioz, 192 Ark. 950, 96 S.W.2d 459.

On December 6, 1962 the Attorney General in Opinion No. WW-1489 ruled as contended for by appellee.

On March 6, 1963 the Attorney General in Opinion No. C-30 reviewed the former opinion and overruled it, holding as contended for by appellant.

The application of Article 20-04(H) is limited to those who have a contract in writing, executed prior to September 1, 1961 and applies to those who filed contracts with the office of the Comptroller by December 14, 1961, and the exemption is cut off after three years.

The judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

Appellant contends that we did not pass on the first four points of error. We believe that we did in affirming the judgment of the trial court.

In the opinion of March 24, 1965 the first four points are not set out in full as in appellant’s brief.

The appeal was founded on 17 points and the points were not copied in full in the opinion, but were mentioned, and a reading of the opinion will show that the first four points were stated in substance.

We remain convinced that we made a correct disposal of the appeal in the original opinion and did overrule all of appellant’s points.

The motion for rehearing is overruled.

Motion overruled.


author: CHAPMAN, Justice.

text:
    Julia THORESON v. Grady FOX et al.
    No. 7441.
    Court of Civil Appeals of Texas. Amarillo.
    March 8, 1965.
    Rehearing Denied April 12, 1965.

      Lemon, Close & Atkinson, Perryton, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   CHAPMAN, Justice.

This opinion is announced in lieu of our opinion of March 8,1965, without change in results.

This is an appeal from a judgment based upon a jury verdict in a suit by Julia Thoreson against Grady L. Fox, Richome Oil & Gas Company, a partnership composed of J. B. Hermann and R. P. Her-mann, and J. B. Hermann and R. P. Her-mann individually, together with the Amarillo National Bank and C. P. Ware, Trustee, and Panhandle Eastern Pipeline Company. No judgment was entered against the bank, Mr. Ware, Trustee, nor the pipeline company, so only Grady L. Fox, the named oil and gas company, and the Her-manns in their various capacities stated are involved in the appeal as defendants. Julia Thoreson, plaintiff below, has appealed from that part of the judgment awarding defendants compensation for valuable improvements made in good faith represented by expenses attendant upon the drilling, and expenditures made in equipping the well for production and for placing it in the pipeline company’s gas stream. Because all parties involved in the appeal are both appellants and appellees, we shall refer to them as in the court below.

The suit was filed by Julia Thoreson, the fee simple owner of the land immediately prior to December 13, 1958, the date upon which she executed an oil and gas lease to Grady L. Fox, and was instituted as an action in trespass to try title to recover the 234.67 acres of land in question and to cancel the oil and gas lease and additional instruments constituting a cloud upon her title. The pleadings upon which she went to trial alleged four other counts after alleging the trespass to try title. In the fourth count she alleged in connection with the fixtures that she had no adequate remedy at law, thus invoking the court of equity for relief to prevent an offset recovery for good faith improvements claimed by defendants. Though the case was tried before a jury, the issues submitted have to do generally with defensive issues involving waiver, estoppel and ratification, and defendants’ claim for alleged good faith improvements.

The trial court in the interpretation of the lease awarded cancellation thereof for failure to produce within the time provided, title and possession to plaintiff under her possibility of reverter, and awarded judgment for defendants for good faith improvements, the amount of which was stipulated.

The troublesome legal question to be resolved so far as the oil and gas lease is concerned is Paragraph 2 thereof now quoted verbatim :

“This lease is a commencement lease under which the lessee or his assigns are obligated to commence the drilling of a well on the leased premises within one hundred twenty (120) days from the date hereof, said well to be drilled to a depth sufficient to test the Hugo-ton Field or about 3,000 feet. Such well shall be completed within one hundred twenty (120) days qfter commencement thereof. If such well is not commenced and completed within such time, then this lease shall terminate as to both parties. If however, production is obtained, then this lease will remain in force for as long thereafter as oil, gas, casinghead gas, gasoline or any of them is produced.”

Defendants’ attack upon the trial court’s interpretation of the quoted Paragraph 2 is that the lease in question is a “no-term” lease; that Paragraph 2 is only a drilling clause and the last sentence of Paragraph 2 “standing alone” does not constitute a special limitation or termination provision. Defendants also state in their brief:

“The assertion that the lease in question contained a primary term of 240 days, constituted the complete basis of plaintiff’s claim that the lease had terminated.”

However, we find in studying plaintiff’s pleadings upon which she went to trial that she alleged the lease prescribes a primary term of 120 days from December 13, 1958, which would be to April 13, 1959, and an exploration and development term of 120 days from and after the commencement of the initial well which was commenced on March 10, 1959, and that the lease terminated under its own terms and provisions upon the expiration of the exploration and development term of 120 days after the commencement of actual drilling operations which would be July 9, 1959, and that in order to maintain said lease in full force and effect defendants must have commenced the production in paying quantities on or before 120 days from the commencement of actual drilling operations, which would have required production to begin by the end of the day on July 9, 1959. Production was not commenced until about September 3, 1960.

The well unquestionably was a good producer, it having produced and had sold from it to Panhandle Eastern Pipeline Company, and for irrigation fuel to plaintiff’s nephew, more than $45,000 in gas from the date it was started on production to December 31, 1963, a period of three years, three months and twenty-eight days.

Neither from the cases cited nor from our research have we found any case involving the interpretation of an oil and gas lease with conditions such as those making up Paragraph 2 above quoted. Therefore, we must rely upon well-recognized text writers and upon cases with analogous situations for our reasoning and conclusions.

Perhaps the most extensively quoted and favorably recognized text writing authority in Texas on property interests created by leases involving oil and gas is Honorable A. W. Walker, Jr., former professor in the University of Texas Law School in the field of oil and gas. After first discussing the exigencies of the times that gave birth to the “no-term” lease he then stated in describing it that:

“The phraseology of the habendum took numerous forms but it was characteristic of all types that the lessee might keep the lease alive indefinitely, by the payment periodically of a delay rental, without the drilling of a well, * * * Texas Law Review, Vol. 7, p. 13.”

Corroborative of the delay rental characteristic of the “no term” lease are the cases cited by defendants as examples: Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290; Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304; Rosson v. Bennett, Tex.Civ.App., 294 S.W. 660 (N.W.H.).

A mere cursory glance at Paragraph 2 of the lease shows that it contains no shut-in royalty clause, no provision for the payment of delay rentals to defer the date of drilling, nor any other constructive production clause. Based on the described characteristics of “no-term” leases, it is therefore apparent that our lease is not a “no-term” lease. In any event, the courts have held in effect that the estate created by “no-term” leases are subject to termination by operation of special limitations. Stephens County v. Mid-Kansas Oil & Gas Co., supra; Texas Co. v. Davis, supra. “Actually, under the decisions, in this state, the so-called oil and gas ‘lease’ is a conveyance of the title to the minerals in place subject to special limitations which render, what would otherwise have been an absolute fee simple, a determinable fee.” Walker, 7 Texas Law Review, p. 554.

Since defendants by brief refer in their arguments to plaintiff’s seeking a forfeiture against them, it may be well to consider whether we are dealing with a determinable fee subject to a special limitation, or a fee simple subject to a condition subsequent, a forfeiture provision.

A condition subsequent, being a forfeiture provision, is looked upon with such disfavor by the courts it is generally held that substantial compliance with a condition subsequent is sufficient to prevent a forfeiture. Walker, 8 Texas Law Review, p. 486; Tiffany on Real Property, 2 Ed. 1920, Sec. 82; 3 Thompson on Real Property (1924), Sec. 2033. “A special limitation, on the contrary, does not operate to cut short the estate but simply fixes one of the natural limits of the estate beyond which the estate cannot endure. * * * Moreover, it is self-operative. Hence, the ameliorating principles stated above as controlling the enforcement of conditions subsequent as forfeiture provisions are not applicable to clauses of special limitation." Walker, 8 Texas Law Review, p. 486. (Footnote ours.)

In discussing the lease in the Stephens County v. Mid-Kansas Oil & Gas Co., case, the Supreme Court said:

“[ I]t seems obvious * * *^tiiat the grants might endure forever, since the lands might never cease the profitable production of oil or gas; [the same is true in our case] and * * * it was intended by all parties that the land should be used for no other purpose than the specified mineral exploration and production, and that the grants were to he enjoyed only while such use continued and were to immediately ter- mínate on cessation of the use.” (Italics ours).

The same court amplified such position somewhat in W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27, in the following language:

“Regardless of the lessee’s intention, his estate [a determinable fee] terminates, under its limitation, when there is a complete cessation of actual use of the land for the purposes’ of the leáse.” (Parenthetical statements ours.)

Now to the application of these principles to the lease in question and the facts existing at the time it was executed. As suggested by plaintiff’s Reply to Defendants’ Motion for Rehearing [it] “was the private ‘gas patch’ of Phillips Petroleum Company,” and the record shows when Phillips unsuccessfully sought to lease the 234.67 acres their landman told Miss Thoreson they would not need to lease anyhow because they would drain her lease with offsets. It is also in the record that several pipelines were located in that proven production area and it is without contradiction that time was of the essence.

She had always inquired when someone sought to lease her property in Texas if they had any connection with Phillips Petroleum Company and the jury found she represented to Mr. Fox that she did not want any of the gas from her property to be sold to Phillips. She denied this but her testimony does show she did not care for Phillips Petroleum Company because they would not sell gas to the farmers for irrigation. Testimony is without contradiction that she was positively conscious of the acute drainage problem at the time, and the first lease she tendered Mr. Fox provided for 90-day periods where the present Paragraph 2 contains 120-day periods. She yielded to his request to that extent only.

We attach no significance to the statement in the first few words of Paragraph 2 in which the lease is referred to as “a commencement lease.” It shows to have been prepared by a Minnesota or North Dakota lawyer and the clause may or may not have some significance in those states. However, that first sentence required lessee or his assigns to commence the drilling of a well on the premises within 120 days from the date of the lease on December 13, 1958, and to be drilled to a depth to test the Hugo-ton Field or about 3,000 feet. As shown by the quoted paragraph, the lease then provides : “If such well is not commenced and completed within such time (referring to the second 120-day period), then this lease shall terminate as to both parties. If however, production is obtained, then this lease will remain in force for so long thereafter as oil, gas, casinghead gas, gasoline or any of them is produced.” (Italics and parenthetical statements ours).

Thus, the last sentence, beginning, “If however,” is alternative to the preceding sentence expressly providing for termination upon the expiration of the second 120-day period if lessee failed to commence and complete the well. This being true, it necessarily refers to and requires production on or before the expiration of the second 120-day period. Since the last sentence refers to the expiration of such second 120-day term, it being an alternative provision, the “as long thereafter,” as oil, gas, etc., is produced, language marks the duration of the estate granted and shows by its own terms the intention of the parties that lessee’s estate was to terminate automatically under those express terms and provisions at the time this stipulated situation does not exist; i. e., production of oil or gas in the legal meaning of the term “production.” Therefore, we believe the “as long thereafter” language granted a determinable fee subject to a special limitation, which was production at the end of the second 120-day period or the determinable fee would revert ipso facto. The record shows defendants had approximately 90 days to put the well on production after discovery.

The well having been commenced on March 10, 1959, the second 120-day period started to run. That period then expired on July 9, 1959. Acutal production was not commenced until September 3, 1960, almost fourteen months after the end of the 120-day period from the time it was commenced and approximately seventeen months from the day it was completed, capped and shut in.

Lease provisions containing special limitations measured by “so long as”, “until or during”, and similar language have been strictly and literally construed by the courts and time has been held to be of the essence. For example: Where the lessee did not commence actual drilling or reworking operations within the time provided in the lease, it automatically expired and the interest of the lessee reverted to the previous fee mineral owner. When the lessee did not tender the shut-in gas royalty payment within the period stipulated by the lease it automatically terminated under its own provisions. The act or operation relied upon by the lessee must conform to the provisions of the lease, so the cessation of production clause could not be employed to extend the term of the grant, in the absence of actual production.

A case that appears to us to be as analogous as any we have found to our own is Clark v. Holchak, 152 Tex. 26, 254 S.W.2d 101, containing the following paragraph of limitation or condition of defeasance:

“ ‘It is further agreed and herein stipulated that in case there is no paying production on said land on December 10, 1945, and for six months thereafter, that this grant shall become null and void, and the minerals hereby conveyed shall revert to the Grantor, their heirs and assigns, but should there be such production, then and in that event, this grant shall remain in full force and effect until such production ceases, after which this instrument shall become null and void.”

The first quoted clause in the Clark-Holchak case is similar to our own sentence three providing the lease shall terminate if the well is not commenced and completed within the second 120-day period since the well was actually drilled and completed during the stipulated time. The Supreme Court did not consider the second clause in the Clark-Holchak case beginning with “but should there be such production” as presenting any problem, stating:

“That is clearly the statement of an additional limitation on the grant and does not render uncertain the meaning of the first clause. The deed was dated December 10, 1930. The only provision in the deed expressly placing any limitation on the grant is to be found in the sentence under review. That sentence, as above stated, provides for a reverter if there should be an absence of paying production during a stated six months’ period. The subsequent provision defines the term of the grant should there be paying production during the six months’ period. It provides that the duration of the grant will be extended beyond the six months’ period only so long as paying production continues, and negatives the conclusion that the mere existence of paying production during that period will render the grant perpetual without regard to the uninterrupted continuation of that production.”

We believe Clark-Holchak refutes defendants’ contention to the effect that the last sentence of Paragraph 2 does not express an event, which would in itself bring about a termination, the court holding “until such production ceases” has the same meaning as “so long as paying production continues,” thus recognizing “so long as and until” are words of limitation.

The Clark-Holchak case was reversed and the San Antonio Court of Civil Appeals in the next trial interpreted the paragraph under discussion in that case to mean that the discovery of oil was not sufficient to extend the grant but that actual production in paying quantities was required. Holchak v. Clark, Tex.Civ.App., 284 S.W.2d 399 (writ refused). This rule had been previously settled by our Supreme Court in Garcia v. King, 139 Tex. 578, 164 S.W.2d 509.

The clause interpreted in Clark Hol-chak and our clause are both expressed in the alternative and make the special limitation effective as of the date stipulated in the preceding clause.

For all the reasons stated and the cases cited defendants’ first three points are overruled.

Defendants next assert error in the trial court’s construction of the lease because the parties’ practical construction of the lease, as indicated by their actions, in the absence of actual production in 240 days following the execution of the lease would not cause a termination. We believe the record shows to the direct contrary.

Plaintiff started making objections early in 1959 after she saw in the Spearman newspaper that Mr. Fox had made an assignment of an interest in the lease to Richome Oil & Gas Company without her consent, which she contended was a breach of their contract. Then in September of 1959 Mr. Fox personally took a proposed amendment to the lease to her home in North Dakota, which provided for a lease extension and shut-in gas royalty agreement, after the attorney of the Hermann family had heard a discussion at a landman’s oil and gas institute of Gulf Oil Corp. v. Reid, supra, and became concerned about their failure up to that time to produce the gas that had been discovered. She refused to sign it and threw the instrument back at him. Her farm employee testified that Mr. Fox in his presence stated the lease “had run out.” She also refused to accept the $234.67 shut-in gas royalty payment covering the period from August 12, 1959, to August 12, 1960. She refused to accept all other offers of extension, refused to cash any checks sent her, refused to sign all division orders and wrote people in Texas from the Attorney General to the Sheriff of Hansford County seeking help to take care of her mineral interests, complaining to Panhandle Eastern Pipeline Company in December of 1959 that the lease to Mr. Fox had terminated. Her action clearly reflects her belief that the lease had expired and she was making every effort to do something about it. We believe this point must be held to be without merit. Southland Royalty Co. v. Pan American Petroleum Corp., Tex., 378 S.W.2d 50. In discussing the “Construction-By-The-Parties-Rule” the court in the case just cited said:

“[the] rule can not be predicated upon evidence that one of the parties by the exercise of diligence should have known that the other was construing a contract in a particular manner. Before that rule may be used to ascertain the intention of the parties, the evidence must show that the practical construction was ‘deliberately given it by both parties.’ ”

Estoppel is also urged by defendants as a bar to the judgment rendered. The jury found Mr. Fox did not rely upon any representation she made of not selling to Phillips to delay the connection of the well to another and that her silence was not intended to induce him to make additional expenditures to connect with Panhandle-Eastern. He stated he would have connected to Phillips had he known his lease would terminate for failure of actual production and that he dealt with several pipeline companies in looking for a suitable market. Under this record we believe the jury answers have sufficient support in the evidence.

We are urged in effect to reconvey the lease to defendants by estoppel although, if the trial court and our court are correct in our interpretation of Paragraph 2 of the lease, it had expired by its fixed terms months before. Under such circumstances the courts have refused to reconvey the lease by estoppel. Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032; Gas Ridge v. Suburban Agricultural Properties, 150 F.2d 363 (Fifth Circuit); Haby v. Stanolind Oil and Gas Company, 228 F.2d 298 (Fifth Circuit).

Defendants urge various other grounds of waiver and estoppel because of plaintiff’s conduct in refusing to answer correspondence, to sign division orders, in permitting defendants to make further expenditures, etc. We have searched the record carefully and find no action or failure to act that could be interpreted as waiving any of her rights, and we find sufficient evidence to support the jury’s answers to special issues 2c, 3a, and 6. Plaintiff was an elderly spinster almost 70 years of age dealing with Mr. Fox, a lawyer, and at least one other defendant lawyer. The record shows she was a “hard trader” and we believe the record could also be interpreted to say that she was quite suspicious of those with whom she had business dealings, including even her brother in Texas. Additionally, after she had signed the lease, when she was faced with the request by Mr. Fox personally, she refused to yield to any of his requests, however fair they may have been. She also refused to sign any instruments sent her by defendants or by the pipeline company in its effort to properly transact its business with her.

The court defined “waiver” as “an intentional relinquishment of a known right.” If ever we studied a record that showed an absolute lack of any intention of a lady to waive any legal right in connection with her property, it is the conduct of plaintiff in this case. We do not believe the authorities cited by defendants in support of their contention for waiver and estoppel apply to the facts of the instant case.

This case being actually two law suits in one trial, with separate briefs for each, we must now consider the appeal of plaintiff, Julia Thoreson, from that part of the court’s judgment which awarded to defendants the sum of $32,376.31, for valuable improvements made in good faith. She does not attack that part of the decision of the court awarding defendants the sum of $18,-190.94, as expenses incurred subsequent to July 9, 1959, the date upon which she contends and we have found the lease terminated.

As heretofore stated, plaintiff alleged four other points after alleging her trespass to try title, in the fourth of which she invoked the court of equity by alleging she had no adequate remedy at law to prevent defendants from pulling and removing the casing and from destroying, damaging or injuring the well.

Paragraph 5 of the subject lease provides in part as follows :

“Lessee shall have the right at any time during the term of this lease and within six (6) months after expiration thereof, to remove all machinery, fixtures, houses, buildings and other structures placed on said premises by the lessee, including the right to draw and remove all casing.”

The fixtures were not removed within that period and plaintiff is contending that because defendants’ answer contained an offset for valuable improvements made while they had adverse possession under Article 7393, Vernon’s Ann.Tex.Civ.St., they are entitled to only the amount expended within the six months after expiration of termination of the lease and that expended afterwards under their adverse claim. She is therefore seeking the powers of the court of equity but demanding that defendants be bound by the strict rules of law.

The Fort Worth intermediate appellate court in Jarrell v. Boedeker, Tex.Civ.App., 146 S.W.2d 293 (N.W.H.) has stated:

“And according to the following authorities, defendant’s right to that equity could be awarded even under his plea of not guilty. Galveston, H. & S. A. Ry. Co. v. Blakeney, 73 Tex. 180, 11 S. W. 174; 1 Tex.Jur., para. 71, page 690; 17 Tex.Jur., para. 3, page 5, para. 36, pages 38-39; 41 Tex.Jur., para. 138, page 631; Wright v. Doherty, 50 Tex. 34; McDow v. Rabb, 56 Tex. 154; Mayer v. Ramsey, 46 Tex. 371.”

See also Jenkins v. Pure Oil Co., Tex.Civ.App., 53 S.W.2d 497 (N.W.H.), where the question of insufficient pleadings was raised. There the court said:

“It is clear from the above allegations that appellee’s petition was not only in trespass to try title, but, in addition, was an equitable proceeding for cancellation of appellants’ lease, to remove cloud from title, and for temporary and perpetual injunction. Therefore appellants’ right to recover on their claim of improvements in good faith does not rest upon, nor is confined to, the statutory requirements of articles 7393-7401, R.C.S. of 1925, providing for the recovery of the value of improvements made in good faith in an action of trespass to try title; this, because aside from said statute and in addition thereto, the case, as presented by the parties hereto, would authorize, under proof sustaining same, appellants to recover judgment against the appellee for improvements made in good faith, and enhancing the value of its mineral lease of the involved 66 acres of land on general equitably principles.”

Also the Fort Worth Court of Civil Appeals in Corbett v. Allman, Tex.Civ.App., 189 S.W. 91, has held: “The right to' recover for improvements in good faith, while established by statute, * * * is yet a right founded in equity, and in its enforcement equitable rules apply.”

The question still remains as to whether through equity, lessees, who have drilled, discovered gas in paying quantities, and failed to produce within the period they mistakenly believed in good faith their lease was still in existence may recover for the cost of drilling and equipping a well as valuable improvements to the extent such improvements enhance the value of lessor’s freehold estate and does not exceed necessary expenditures.

The jury found defendants did not believe the lease in question required actual production within 240 days, so they did not in good faith believe they would have to remove the fixtures and casing by January 9, 1960, to come within Paragraph 5 of the lease permitting such removal within six months. But this still leaves the question of whether the drilling expense could be recovered as valuable improvements in good faith as an offset under the equitable theory of unjust enrichment. We do not believe our Supreme Court has passed on the question under facts analogous to our own, but the Supreme Court of Pennsylvania in Phillips v. Coast, 130 Pa. 572, 18 A. 998, has written favorably for the producer in a similar situation.

There an oil well had been mistakenly drilled upon a wrong tract of land. Plaintiff filed suit for ejectment. The question arose as to whether defendants were entitled to be compensated out of the fund representing the proceeds from oil they had produced from the land to pay for drilling, equipping and operation of the well. The issue was resolved favorably to defendants, the court saying:

“This is a kind of improvement of an unusual character, and one which particularly commends itself to the favorable consideration of the courts. It was an oil-well, with all the machinery and appliances necessary to its operation. Now, without this well and machinery, the oil could not possibly be obtained. After it was completed, its operations were all for the benefit of the plaintiffs. * * * The defendants, in the most perfect good faith, expended their money in sinking this well, as the jury has found; but they have reaped none of the benefits. All of these have gone to the plaintiffs. They could not possibly have enjoyed those benefits, if they had been in the possession of the land, without incurring this very same cost. Therefore it is no hardship whatever to repay to the defendants the bare cost of the well and appliances, which belong to the plaintiffs now, and the whole * * *. The fund out of which this repayment is asked by the defendants is a part of the proceeds of the very oil which was produced by their own good-faith expenditure in sinking the well. It has cost the plaintiffs nothing; and we know of no good reason, in law or morals, why the reasonable claim of the defendants should not be allowed. The proposition that oil is part of the land, and cannot be regarded as mesne profits, and hence the right to compensation for valuable improvements, has no application. The oil has been taken. It is not a question of staying waste, but of allowance for the cost of valuable improvements, actually necessary, and made in good faith.”

Surely, if a trespasser, as in the Pennsylvania case just cited, is entitled to recover for the cost of drilling and for machinery and appliances incident to the operation of the well defendants here would be entitled to recover for the value of the improvements to the land itself, limited to the actual cost to the defendants. By stipulation it was agreed plaintiff’s estate had been enhanced in value at least as much as the cost to defendants of the improvements made. The fact that defendants unsuccessfully sought a supplementary clause as a precaution against termination of the lease does not negative the jury finding that they did not believe the lease required actual production within 240 days because there is probative evidence to support the finding.

Plaintiff not only recovered her title to the minerals in place, but 452 feet of 9%" surface casing, 2,909 feet of 5tf¡" casing, a series of valves and connections known in the oil and gas fraternity as a “Christmas Tree” and other appurtenant well and wellhead equipment, but she also recovered a productive gas well in active operation in the gas stream of a profitable paying purchaser, all placed there by the efforts of and with the funds expended by defendants. Additionally, she had $11,733.33 bonus money for which, of course, no recovery was sought.

Though not involving an oil and gas question the San Antonio Court of Civil Appeals in the case of Mulholland v. Jolly, 17 S.W.2d 1109, has written on the equitable maxim that: “He who seeks equity must do equity” in a case for recovery of valuable improvements placed on property innocently derived through a forged deed. That court speaking through Chief Justice Fly stated:

“ * * * we think that the maxim that ‘He who seeks equity must do equity’ applies to one who seeks to avoid payment of money for the extinguishment of a lien and taxes as well as improvements enhancing the value of his estate, and at the same time desires the cancellation of a deed and removal of cloud from his title.”

If the trial court and our court are correct in our interpretation of Paragraph 2 of the lease, this court is of the firm belief that the trial court equitably and properly disposed of the cross-action of defendant. However, we would want it specifically understood that we are limiting the offset recovery to the particular facts of this case and are not binding this court to a proposition that under a different set of facts and jury findings the producer could recover for such improvements.

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

      . This is not to imply that we consider defendants substantially complied with the conditions under which they were bound by the quoted paragraph. We believe the record shows without question they did not do so after discovery.

      . The fact that the well was completed within approximately 30 days from commencement indicates such requirement was not an unreasonable one.

      . Woodson Oil Company v. Pruett, Tex.Civ.App., 281 S.W.2d 159 (N.R.E.).

      . Freeman v. Magnolia Petroleum Co., 141 Tex. 274, 171 S.W.2d 339; Steeple Oil & Gas Corp. v. Amend, Tex.Civ.App., 337 S.W.2d 809 (N.R.E.).

      . Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267.