author: ANDERSON, Judge.

text:
    STATE of Missouri at the relation of Wilma N. SMITH, Relator, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court of St. Louis County, Respondent.
    No. 32051.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    James & Morris, Richard C. Wuestling, III, St. Louis, for relator.
    Marshall, Craig & Littmann, St. Louis, Carter, Fitzsimmons & Brinker, Clayton, Deeba, DeStefano, Sauter & Herd, St. Louis, for respondent.
   ANDERSON, Judge.

This is a proceeding in prohibition, the object of which is to prevent the Judge of Division No. 3 of the Circuit Court of St. Louis County from proceeding against Relator in Cause No. 2S7018 in said Court, and forcing her to defend the actions stated therein against her, because other parties are improperly joined as defendants in a separate count of the petition. The grounds for the relief sought in this prohibition proceeding is that there is not asserted against Relator and the other named defendants, jointly, severally, or in the alternative any right to relief arising out of the same transaction, occurrences or series of transactions and occurrences, in which common questions of law or fact will arise. Relator relies upon Civil Rule 52.05 as forbidding such joinder. In the trial court Wilma N. Smith, Relator herein, filed a motion in which Relator in the alternative prayed for a dismissal of the action or for an order for separate trials of the séparate counts of the petition. This motion was by the court overruled. The petition for prohibition was then presented to this court. Our preliminary writ was thereafter issued to which Respondent in due time made return. Relator then filed a motion for judgment on the pleadings. The facts upon which our determination of the matter before us rests are to be found in the petition attached to the application addressed to our court.

The petition was in two counts. Count I was directed solely against Relator Wilma N. Smith. In substance it was alleged that on October 31, 1963, plaintiff Albert E. Krassinger was operating his motor vehicle northwardly on U. S. Highway 61-67 near Baumgartner Road when it collided with an automobile being operated south-wardly on said highway by defendant Wilma N. Smith; that as a result of said collision plaintiff was seriously injured; that the collision was due to the negligence of Wilma N. Smith.

It was further alleged that by reason of his injuries, plaintiff was in need of medical attention and emergency transportation to a hospital, and for that purpose obtained the services of Leroy Beck d/b/a Beck Ambulance Service and James Cook, the driver of an ambulance belonging to Leroy Beck; that as a result of the negligence of defendant Wilma N. Smith and the concurrent negligence of defendants Leroy Beck d/b/a Beck Ambulance Service, James Cook, the driver of the ambulance which was conveying plaintiff to the hospital and Wellmon J. Cossey, plaintiff was caused to suffer additional injuries, and an aggravation of the injuries received in the previous accident, when the ambulance collided with an automobile being operated by defendant Wellmon Cossey.

It was further alleged that the negligence of defendant Wilma N. Smith, which caused the- collision between her car and the one driven by plaintiff, was (1) excessive speed, (2) failure to keep a proper lookout, (3) failure to slacken the speed or stop her automobile so as to avoid the collision, and (4) violation of the humanitarian doctrine; that as a result of the aforesaid negligence plaintiff was thrown about inside his car striking parts thereof, and thrown to the pavement of the highway; that he was subsequently thrown about within the ambulance within which he was a passenger striking various parts thereof, all seriously injuring him.

The petition then specifies various parts of the body as having been injured, which injuries were alleged to be the proximate result of the collision and said defendant’s negligence. It was also alleged that said injuries are serious, painful, permanent and progressive; that they required hospitalization and medical treatment by physicians and will in the future require such treatment; that by reason thereof, plaintiff was caused to suffer great pain of body and anxiety of mind which will continue in the future; and that the functions of the portions of his body injured have been seriously and permanently impaired.

The prayer of Count I was for judgment against defendant Wilma N. Smith in the sum of $75,000.00.

Count II of the petition was directed against defendants Leroy Beck, James Cook, Wellmon Cossey and Wilma N. Smith. It alleged that on October 31, 1963, plaintiff was a passenger in the ambulance which was being operated northwardly on Brent-wood Boulevard by defendants, Leroy Beck d/b/a Beck Ambulance Service and James Cook, when said ambulance collided with an automobile being operated westwardly on Clayton Road hy defendant Wellmon J. Cossey, which collision caused plaintiff to be violently thrown about within said ambulance with the result that plaintiff was seriously and permanently injured; that said collision was caused by the negligence of defendants, Leroy Beck, James Cook and Wellmon J. Cossey. The negligence charged was, (1) excessive speed under the circumstances then and there existing, (2) negligent failure to swerve, (3) negligent failure to give or sound a warning of the approach, proximity and movement of their respective vehicles. Defendants, Leroy Beck and James Cook were separately charged with (1) failure to keep a careful and vigilant watch or lookout for vehicles traveling on Clayton Road, particularly the car operated by defendant Cossey, (2) negligent failure to yield the'right of way to the motor vehicle being driven by defendant Cossey, when the latter was approaching the intersection so closely as to constitute an immediate hazard of collision, (3) negligent failure to stop in response to an electric traffic signal which exhibited a red light, and proceeding into the intersection when it was not safe so to do.

It was further alleged that as a direct and proximate result of the negligence of defendant Wilma N. Smith as set out in Count I of the petition, and the injuries resulting therefrom as set out in Count I, plaintiff was placed in need of medical attention and emergency transportation to a hospital, and for that purpose secured the services of defendants Leroy Beck d/b/a Beck Ambulance Service, and James Cook; and that as a result of the negligence of defendants Leroy Beck, James Cook and Wellmon Cossey, and the concurring negligence of defendant Wilma N. Smith, plaintiff was thrown about in said ambulance which resulted in serious and permanent injuries.

The allegations with respect to the parts of the body injured are the same as those contained in Count I. Following said allegation in Count II it is averred “that all of the foregoing injuries were thereby caused, accelerated and activated.” The prayer of Count II is for judgment for $75,000.00 against defendants Leroy Beck, James Cook, Wellmon J. Cossey and Wilma N. Smith.

That part of Civil Rule 52.05 applicable in this proceeding reads as follows:

“ * * All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given * * * against one or more defendants according to their respective liabilities.”

In Count II of the petition, plaintiff seeks recovery for injuries alleged to have been received in the second collision including aggravation of the injuries received in the previous accident.

Relator contends there was a misjoinder under the rule because the two alleged causes of action did not arise out of the same transaction or occurrences or series of transactions or occurrences, but involve separate collisions occurring at different places, at different times and involving different automobiles; that the two separate accidents are without any relationship, connection or interdependence and consequently there could not arise in the action any common issues of law or fact. It is Relator’s position that the second accident constituted an intervening force, and for that reason Relator cannot be a joint tort-feasor along with William Cossey, Leroy Beck and James Cook.

Respondent’s position is that the injuries received by plaintiff in the second accident were the natural result flowing from the original tort for which defendant Wilma N. Smith may be held liable with the other defendants who were immediately involved in the second accident; that there was, therefore, alleged an occurrence from which arose a right to relief by plaintiff against all the defendants in which common questions of law and fact will arise.

In our view the deciding factor in the case at bar is whether or not under the facts alleged, defendant Wilma N. Smith can be held liable to plaintiff for the injuries received in the second accident or for the aggravation of the injuries sustained in the first accident. If so her joinder with others as defendants was proper.

A person who has received an injury due to the negligence of another is entitled to recover all damages proximately traceable to the primary negligence, including subsequent aggravation which the law regards as a sequence and natural result likely to flow from the original injury, even though there may have been some intervening agency contributing to the result. IS Am.Jur., Damages, Sec. 83. Thus it has been held that the original wrongdoer who negligently causes injury to another may be held liable to the latter for the negligence of a physician- who treats such person where such negligent treatment results in the aggravation of such injuries. Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617. The reason for the rule is that the employment of a physician is to be regarded as a natural consequence of the original wrong, because the necessity for such employment was imposed on the injured party by the fault of the original wrongdoer. It is also stated that such liability is founded in sound reasons of public policy. Restatement, Torts, p. 1215, Sec. 457 Com. (b); Elliott v. Kansas City, supra.

But can the above principle be applied to the case at bar? In the use of the ambulance, plaintiff was seeking medical attention. Such use was under the allegations of the petition necessitated by wrong inflicted upon her by defendant Wilma N. Smith. Any negligence connected with the treatment of the injury necessitated by the act of the original wrongdoer should be regarded as the proximate result of the original wrong, whether it be due to the physician’s negligence or the negligence of an ambulance .driver conveying the injured party to the hospital for treatment. Such conveyance is a necessary incident or step in securing the services of a physician and medical treatment. Therefore the rule holding the original tort-feasor liable for the negligence of a physician who treats the injured party should be extended to injuries sustained by one injured while being conveyed to a place where medical service can be obtained. This is the view expressed in Lucas v. City of Juneau, 127 F.Supp. 730, 15 Alaska 413, a case very similar to the one at bar. There the question presented was whether the original tort-feasor and the owner of an ambulance whose driver’s negligence caused a collision while conveying the plaintiff to a hospital, which accident aggravated the previous injuries, could be joined as defendants under Rule 20(a), Fed.Rules Civ.Proc., which rule is identical in its terms with our Civil Rule 52.05. The court held that the original tort-feasor was liable for the aggravation of the injuries received in the second accident, and it - and the owner of the ambulance were properly joined as defendants, since there was a single occurrence giving rise to a right to relief, which presented questions of fact common to both. The court in that case said, “(t)he use of an ambulance, therefore, like the use of a surgeon’s scalpel, is necessitated by the defendant’s wrong. And either may be used negligently.” The court also said “ * * * the first tort-feasor is in no position to avoid liability for an aggravation sustained by plaintiff in taking one of the steps necessary to obtain further treatment.” We believe the opinion sound. Joining Mr. Cossey as a defendant was also proper.

In our view our preliminary writ in this case was improvidently issued, and for that reason said writ is quashed.

WOLFE, P. J., and DOUGLAS W. GREENE, Special Judge, concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Paul Henry TOWNSEND and Sharpe Motor Lines, Appellants, v. Lillian STAMPER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Rehearing Denied Feb. 4, 1966.

      Charles G. Cole, Jr., Barbourville, for appellants.
    Carlos B. Pope, Barbourville, Julian H. Golden, Pineville, for appellee.
   DAVIS, Commissioner.

This appeal arises from a collision between the passenger car of Paul Stamper and a tractor-trailer owned by appellant Sharpe Motor Line and driven by appellant Paul Henry Townsend. The appellee, Lillian Stamper, wife of Paul Stamper, was a passenger in her husband’s car at the time of the accident. Mrs. Stamper obtained verdict and judgment for $32,100 for personal injuries and medical expenses, alleged to have been caused directly and proximately by the accident. There were two jury trials of the case; at the first trial the jury was not able to reach a verdict.

Appellants enumerate eleven bases for reversal, but we regard them as somewhat repetitious. Hence, we shall summarize the assignments of error as follows: (1) The court should have directed a verdict for appellants at the first trial; (2) the court should have directed a verdict for appellants at the second trial; (3) the court should have granted appellants’ motion for a jury panel of 21; (4) the court erred in submitting issue of medical expenses; (5) the verdict is excessive; and (6) the court erred in submitting an instruction on permanent injury.

The accident occurred September 12, 1962, on U. S. Highway 25-E near Bar-bourville. The Stamper car was proceeding southwardly on 2S-E; Mr. Stamper intended to turn left off the highway to go to the city dump. He indicated his intention to make the left turn by activating the electric turn signal about 250 feet from the intersection. It was “dusky dark” at the time of the collision, and both vehicles had on their headlights. Appellant Townsend, operating the tractor-trailer of his employer, appellant Sharpe Motor Lines, was also travelling southwardly and overtaking the Stamper car. Townsend saw the left-turn signal from the Stamper car and assumed that Stamper would complete the indicated left turn. There was no traffic meeting Stamper; the roadway was a two-lane surface, 24 feet in width, with shoulders 9' 9" wide.

According to Stamper, in which he is corroborated by his wife, Townsend raised and lowered the beam of the headlights on the tractor-trailer — rapidly and continuously — as the tractor-trailer continued to overtake the Stamper car. On the other hand, Townsend asserts that he “flicked” the headlights just one time, and that he did so in order to apprise Stamper to go ahead with the left turn. Stamper asserted that he interpreted the flashing of the headlights as a passing signal from the tractor-trailer, and concluded that he could not negotiate the left turn since he supposed the tractor-trailer would be passing his car as he attempted to do so.

Stamper had had experience as a deputy sheriff and as a state police officer, and related that raising and lowering of the headlight beam is a characteristic and usual passing signal at night. Townsend acknowledged that repeated “flicking” of the headlight beam, when accompanied by activation of a left-turn signal, is a passing signal — but he insisted that he gave no such signals.

Stamper testified that he first observed the trailing tractor-trailer as the latter passed another vehicle behind Stamper; that the overtaking tractor-trailer then pulled back into its right lane behind Stamper; that this occurred when the tractor-trailer was about 400 feet behind Stamper. It was just about this time, Stamper said, that he began to flash his left turn signal. He observed, through his rear view mirror, that the trailing vehicle was gaining on him, and that its lights were being “blinked” as above described. Stamper said that he had slowed somewhat, preparatory to making the left turn, but increased his speed slightly when he concluded that the tractor-trailer was going to pass him. According to Stamper, no portion of his car had ever crossed to the left of the center line — he was about fifty feet short of the left turning point when he concluded he must abandon the left turn. By then, Stamper said, the trailing vehicle had come within three or four feet of his car (although he testified that he realized that an approaching vehicle usually seems to be closer than it actually is). It was just then that the tractor-trailer struck the “extreme right rear corner” of Stamper’s car a “glancing lick,” then it “dug deeper on the right hand rear door, knocked the rear of my car around and hauled the car forwards and then bump again and crashed, caved the front door in against the front seat,” according to Stamper’s testimony. When the vehicles came to rest the tractor-trailer was against the guard rail on the extreme right of the road (west side). The Stamper car was on the same side, alongside the tractor-trailer. The left side of the front bumper of the tractor-trailer was “into” the right front door of the Stamper car when the vehicles came to rest.

Witness Jim Howe, a state trooper at the time of the accident, testified that he investigated the wrecfcl Asked about any statement Townsend had made to him at the scene, he responded:

“Well, first he said he was coming in behind Mr. Stamper and that Mr. Stamper turned his left hand signal on and that he flashed his lights for Mr. Stamper to go head and turn and that instead of turning Mr. Stamper went straight ahead. He cut to the right to pass him on the right hand side and I asked him why he didn’t stay behind him and he said that he was catching up too fast to stay behind him.”

Townsend’s version of the accident varies from the account given by Stamper. Townsend said that Stamper first turned on his left-turn signal a considerable distance from the accident scene, but then “lifted” the signal (i. e., turned it off). Then, after crossing a bridge, Stamper turned on the left-turn signal again. Townsend was “gaining on” Stamper then, but slowed to about 10 miles per hour. Stamper began the left turn by pulling across the center line, whereupon Townsend “blinked” his lights (for the first and only time, according to Townsend), and “dropped off” onto the right shoulder to pass Stamper. In Townsend’s words, this is how the accident happened:

“As I dropped off the road I blinked my lights, one time, and I raised them from high beam back to low, in other words I meant for him to go ahead and complete his turn. When I did that he just gave it a swope (sic), I mean he just cut his car to the right and I just cut mine as far as I could get it. I was in the guard rail and he was right against me.”

Mrs. Stamper testified that she was seated alongside her husband in the front seat of the car, with one leg under her and her back against the arm rest on the door. Appellants assert that it was contributory negligence, as a matter of law, for Mrs. Stamper to so position herself — particularly in light of evidence that she had had previous difficulty with her back. No authority for this argument is cited, nor are we able to perceive any basis for it. We conclude that the trial court correctly rejected appellants’ contention in this respect.

We think it is apparent that the facts just detailed created a jury issue regarding culpability for the collision. The jury could well believe that Stamper acted as an ordinary prudent man under the circumstances related by him. Townsend acknowledged that he observed Stamper's left-turn signal, and concedes that he did blink his headlights just as Stamper was in the process of turning. His explanation was that he intended the blinking to assure Stamper it was all right to turn. The jury may well have doubted the verity of that explanation, particularly in light of the trooper’s testimony. It is significant that KRS 189.340(2), dealing with passing to the right of a left-turning, overtaken vehicle, provides, in part:

“No person shall drive off the pavement or upon the shoulder of the roadway in overtaking or passing on the right.”

We think it is clear that an overtaking vehicle, confronted with a left-turning car ahead, may not proceed as if the left turn and the passing process will be synchronized with the precision of a well-trained drill team. This view of the case disposes of appellants’ contentions (1) and (2) respecting a directed verdict for appellants — both at the first and second trials, since the evidence was substantially the same on each trial.

Briefly, we deal with the asserted error in not presenting a panel array of twenty-one jurors. Appellants moved the court to present twenty-one jurors, with three peremptory challenges to be accorded Paul Stamper, three to Mrs. Stamper, and three to appellants. At the time of the motion Paul Stamper had pending a cross-claim against appellants for damages allegedly sustained in the accident, and appellants had a claim against Paul Stamper for indemnity or contribution, alternatively. Paul Stamper, by counsel, then dismissed his cross-claim against appellants, although appellants did not dismiss their claims against him. Thereupon the trial court denied the motion for a panel of twenty-one. This was correct. KRS 29.290 assures each party litigant in civil actions the right to three peremptory challenges. Appellants were accorded the right. They may not be heard to complain that Paul Stamper neither sought nor obtained the right to three challenges. Appellants rely on Williams v. Whitaker, Ky., 293 S.W.2d 627, 64 A.L.R.2d 504; Vaughan’s Adm’r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060; Roberts v. Taylor, Ky., 339 S.W.2d 653, and Martin v. Stumbo Elkhorn Coal Co., 216 Ky. 147, 287 S.W. 539. There is no principle in those authorities to support the position of appellants here.

The appellants urge that the trial court erred in permitting the jury to award medical expenses; the basis of this contention is that there was a failure to show that the medical expenses were reasonably necessary to the treatment of any injury sustained by appellee in the accident. We deem Miller v. Mills, Ky., 257 S.W.2d 520; Cumberland Quarries, Inc. v. Gibson, 312 Ky. 802, 229 S.W.2d 978, and Louisville & I. R. Co. v. Frazee, 179 Ky. 488, 200 S.W. 948, dispositive of the question. In the case at bar the appellant presented vouchers reflecting payment of various medical expenses. She testified that all were incurred incident to treatment of the injuries she sustained in the accident. An itemized list of the medical expenses was introduced also. This was a prima facie showing of the reasonableness of the bills within the rationale of the cited cases. Appellants made no affirmative challenge of the reasonableness of the medical expenses, although they sought to show that appellee’s complaints arose from conditions entirely independent of the accident. Under the evidence adduced the jury had a reasonable basis to conclude that the incurred expenses were for treatment of injuries received by appel-lee in the accident.

The next question relates to claimed excessive damages. As noted, the total verdict was $32,100. The jury specified in its verdict that the award consisted of $20,-000 for pain and suffering, $10,000 for loss of earning power, and $2100 for hospital and medical expense. Consideration of this question requires examination of the nature of the claimed injuries.

Mrs. Stamper had a bout with “back trouble” as early as 1958. At that time she was hospitalized for a few days. X-rays taken of her spine then disclosed an arthritic condition at the interspace between L4-5 vertebrae. Mrs. Stamper gave a history in 1958 of having fallen and hurt her back. The 1958 x-rays disclosed also a condition of osteoporosis (explained by medical evidence as a loss of density or “washing out” of calcium in the bones, frequently encountered in female patients following menopause). Dr. William Patterson examined Mrs. Stamper about ten days after the accident; he and his associate had examined her in 1958. It was Dr. Patterson’s view, after the 1962 examination, that Mrs. Stamper had an acute lumbosacral musculoligamen-tous strain, some of which he ascribed to her obesity (171 pounds) and some of ⅛ to her “delay in getting to the hospital” after the accident. He observed some limitation of motion, but was not able to say how much of this was attributable to the automobile accident and how much to arthritic conditions.

Dr. Golden, Mrs. Stamper’s personal physician, referred her to Dr. Angelucci at Lexington; the latter is a neuro-surgeon. Dr. Angelucci diagnosed her condition as a probable herniated disc syndrome; he confirmed this diagnosis by means of mye-lography. Accordingly he performed an operation which revealed a posterior pro-tusion of the mid-line disc at L4 — 5 inter-space, which required its complete removal by having to “go on both sides” of the spine. It was Dr. Angelucci’s medical opinion that Mrs. Stamper could return to her duties as a bookkeeper, and he expressed the view that she could and should obtain substantial improvement in her condition if she would follow his directions as to exercise. Dr. Angelucci recognized that a herniated intervertebral disc may develop gradually, or suddenly, but, based upon the history that Mrs. Stamper had given him, it was his opinion that the disc protrusion he found in her was the result of the automobile accident.

Countering this, Dr. Golden told of his treatment of Mrs. Stamper — both before and after the accident. He confirmed her evidence that she had been able to work regularly before the accident, but had not been able to do so following it. (There was evidence that Mrs. Stamper had drawn $60 for twelve days of jury service at the September, 1962, term of the Knox Circuit Court, although it was not developed that she did actually serve on any jury during that time.) Dr. Golden ascribed her present condition to the accident injuries as opposed to any pre-existing conditions. He confirmed her claim of intense pain, and expressed the opinion that her pain was severe and disabling. The following question and answer from Dr. Golden’s testimony are pertinent:

“Q 73: Do you have an opinion based ■on reasonable medical certainty as to the duration or extent of this pain with diagnosis or prognosis of it ?
“A: Well, the prognosis for the pain to go away is very poor because of the length of the time, from the time of the operation until now, without any appreciable lessening of the pain, I would doubt that it is going to lessen in the future and I think this will disable in the future.”

(The evidence was given at the second trial in January, 1964.)

Dr. Golden further testified that in his opinion Mrs. Stamper was totally disabled as of the time he gave his evidence.

The decisions of this and other courts relating to excessiveness of damages in personal injury cases are legion. See collected cases in 16 A.L.R.2d 3, et seq., and the series of prior annotations on the subject in 102 A.L.R. 1125 and 46 A.L.R. 1230. Supplemental service editions of A.L.R. reflect hosts of cases on the topic since the annotation in 16 A.L.R.2d 3. Our cases have consistently recognized that determination of the propriety of personal injury verdicts depends upon the facts of the particular case and what compensation has been upheld for similar injuries, giving consideration to changed economic conditions since the precedents were established. Lyon v. Prater, Ky., 351 S.W.2d 173. The same precedent recognizes the equally well-established principle that the test of exces-siveness of a damage verdict is whether the award is so great as to strike the mind at first blush as being the result of passion and prejudice. Louisville & N. R. Co. v. Mattingly, Ky., 318 S.W.2d 844, relied on by appellants, is readily distinguishable from the present case on its facts. We simply cannot say that $20,000 as an award for pain and suffering as reflected in this record is so great as to strike the mind at first blush as having been induced by passion or prejudice on the jury’s part. The $10,000 awarded for lost earning power appears reasonable, if there was sufficient evidence to warrant a permanent injury instruction.

What we have just said, considered in light of the quoted portion of Dr. Golden’s testimony, substantially disposes of the question of whether it was proper to instruct the jury on permanent injury. Mrs. Stamper showed that she had earned $200 per month as a bookkeeper for several years before the accident; since the accident she has not been able to work, according to her evidence and according to the evidence of Dr. Golden. As previously noted, Dr. Golden voiced the estimate that her prognosis “for the pain to go away is very poor.” He said that he would “doubt that it is going to lessen in the future” and “I think this will disable in the future.” It will be noted that Dr. Golden’s evidence was not to the effect that he entertained doubt whether Mrs. Stamper will improve — rather he has “doubt” that the pain will lessen in the future, and thinks that the chances are “very poor” for that to happen. As noted in Ingram v. Galliher, Ky., 309 S.W.2d 763, the evidence as to the permanency of injuries must be shown with reasonable certainty, and must be positive and satisfactory, but not necessarily conclusive. We think the evidence here meets that test.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    SECOND NATIONAL BANK & TRUST COMPANY, as Ancillary Administrator, etc., et al., Appellants, v. FIRST SECURITY NATIONAL BANK & TRUST COMPANY, as Executor, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    Rehearing Denied Feb. 4, 1966.

      Rufus Lisle, Harbison, Kessinger, Lisle & Bush, Lexington, Roger B. Hendrix, Charlotte, N. G, for appellants.
    Stoll, Keenon & Park, Miller, Griffin & Marks, Lexington, F. Thomas Miller, Jr., Charlotte, N. G, for appellees.
   MILLIKEN, Judge.

This appeal involves the application of the ten-year statute of limitations to the probate of a will.

Wilson B. Dalton and the late Joe N. Dalton, appellants in this action, sought to probate the last will and testament of their sister, Margaret Dalton Kirk. The probate was opposed by the testatrix’ only issue, ap-pellee Louise Kirk Headley (now Edwards), and by the First Security National Bank & Trust Company, personal representative of the testatrix’ husband, T. H. Kirk. The trial court entered judgment for defendants (appellees) and plaintiffs (appellants) appealed.

The testatrix, Margaret Dalton Kirk, wife of T. H. Kirk, died on August 11, 1948, leaving an estate valued at that time at approximately $900,000, including 7,280 shares of common stock of R. J. Reynolds Tobacco Company. At the time of her death she was a resident of Lexington, Kentucky, and left as survivors her husband T. H. Kirk, a daughter, Mrs. Louise Kirk Headley, a resident of Florida, and her two brothers, Wilson B. Dalton and Joe N. Dalton, who resided in North Carolina.

On August 23, 1948, T. H. Kirk was appointed and qualified as administrator of his wife’s estate, making affidavit that she died intestate. He administered the estate and late in 1952 filed a settlement dividing it between himself and their daughter, Mrs. Headley, according to the statutes of descent and distribution.

Mr. Kirk died in September, 1960, and in October, 1960, Louise Kirk Headley, while going through all the effects preparatory to closing the Lexington home, discovered her mother’s holographic will dated January 3, 1932, in her mother’s desk in a downstairs room. In this will Mrs. Kirk bequeathed 1,000 shares of common stock of the R. J. Reynolds Tobacco Company to each of her brothers, Joe N. Dalton and Wilson Dalton. The balance of the estate was bequeathed to her daughter. After the death of her mother the daughter had searched the downstairs desk and found no will there. She had also conducted a partial search of an upstairs desk and found no will. It could not be determined whether Mr. Kirk personally searched for the will, for it was not discovered until after his death.

After Mrs. Headley found the will she called the trust officer of the First Security National Bank & Trust Company, executor of her father’s will, to relate her discovery. Upon advice of counsel, he had her inform both Wilson and Joe Dalton, who later filed the present action to probate the will.

KRS 413.160 states:

“An action for relief, not provided for by statute, can only be commenced within ten years after the cause of action accrued.”

This statute has been interpreted to include probate proceedings, hence a proceeding to probate a will ordinarily is barred by the lapse of ten years from the time the right to probate accrued. Allen v. Froman (1894), 96 Ky. 313, 28 S.W. 497; Allen v. Lovell’s Adm’x (1946), 303 Ky. 238, 197 S.W.2d 424; Hoagland v. Fish (1951), Ky., 238 S.W.2d 133.

It naturally is the contention of the proponents of the will that the limitation should be tolled because, they claimed, there was a concealment of the will or at least an obstruction to its probate. They assert that Mr. Kirk had the duty to search for the will and to disclose it, and they base this assertion on the premise that Mr. Kirk, as the administrator of his wife’s estate, had actual or constructive possession or custody of the instrument as well as custody of her other personal property. There is a semblance of truth in the contention, but the sense of it seems to be that Mr. Kirk had the duty to disclose a will only if he knew one existed and where to find it, and that that duty would not arise from the fact alone that he was administrator of the estate, but from the fact that he had actual knowledge and was also an interested party. In other words, such a duty would arise primarily from his knowledge, not from his office as administrator alone.

What evidence is there that he had knowledge of the will? There is none. His daughter testified that she found no will in the desk or any place else in the search she made shortly after her mother’s death and that her father knew of the futile results of her search. It was only after her father’s death that she found the holographic will of her mother in the desk. How it got there and who put it there are unanswered questions. Had there been any motive to conceal the will its destruction would have been the surest way to do it, since, as far this record discloses, all the parties believed that Mrs. Kirk died intestate until her 1932 holographic will was discovered in October, 1960, among her papers, and not among the papers of Mr. Kirk.

We cannot assume active, fraudulent conduct on the basis of the evidence offered here for, if anything, it seems to us that all of the circumstances are consonant with a finding of no fraud and no intentional concealment or obstruction, and no active effort to mislead, such as would toll the running of the statute of limitations under KRS 413.190(2); Security Trust Company v. Wilson, 307 Ky. 152, 210 S.W.2d 336. In fact, Mr. Kirk’s sister moved into the home shortly after Mrs. Kirk’s death and used the bedroom where the upstairs desk was located until Mr. Kirk’s death twelve years later. It is conjectural, of course, but it is possible that the sister is the one who removed the will with other papers from the upstairs desk to the one downstairs, so that she herself might have full use of the desk in her bedroom. Furthermore, Mr. Gayle Mohney and his wife testified that Mrs. Kirk told them, in the presence of Mr. Kirk on Sunday before Mrs. Kirk’s death, that she had no will and that she wanted to see Mr. Mohney about making one. This evidence was admissible for the purpose of showing that Mr. Kirk was justified in believing that his wife died intestate; it was not hearsay as contended by the appellants, for the issue was not the truth of the statement that she had no will but, rather, that she made the statement and the statement led Mr. Kirk to assume that she had no will. Mr. Mohney had known the Kirks for many years, had represented Mr. Kirk, but had never acted as counsel for Mrs. Kirk, so no violation of professional privilege is involved.

The appellants contend that they were entitled to a jury trial or at least to take further testimony, citing KRS 394.260, which directs the impaneling of a jury on demand to determine whether any testamentary paper is or is not the will of the testatrix. The issue here was not whether the instrument was the will of Mrs. Kirk, but whether its probate was barred by the ten-year statute of limitations. Probate proceedings are ecclesiastical and equitable in origin, 57 Am.Jur., Wills, Sec. 744, pages 510, 511, and involve no jury unless a statute directs it. Howard v. Howard (1960), Ky., 333 S.W.2d 953, citing authorities. We conclude that the chancellor'was justified in refusing to call a jury in this case wher the statute of limitations was the controlling issue.

The appellants moved the chancellor “to place this case on the jury docket and assign it for trial,” and the appellees countered with a motion to submit the case to the court “for final judgment on the pleadings and proof herein.” Pursuant to an agreement of the parties the trial court had theretofore ordered that the record in the probate court “may be considered by the court on any motions for summary judgment or judgment on any of the pleadings and said documents may be used in the trial of this action subject to the right to object to any of them * * * .” The chancellor overruled the appellants’ motion and submitted the case for judgment on the probate court record “without the necessity of the production of the witness orally in open court,” and júdgment was rendered on that basis.

The appellants contend that the chancellor, instead of trying the case de novo as required by CR 72.03, acted as a reviewing court and, in effect, granted the appellees a summary judgment under the guise of “Findings of Fact and Conclusions of Law,” thus allegedly depriving the appellants of an adequate hearing. In reply, the appellees point to the agreed order authorizing consideration of the probate court record “in the trial of this action,” and they further declare that the appellants offered no other evidence. In view of the fact that the appellants’ motion “to place this case on the jury docket and assign it for trial” was a demand for a jury trial and was properly denied, and there does not appear from the record any indication that the appellants proposed to offer any other proof, we conclude that the chancellor was justified in submitting the case on the record before him.

As we view this case there appears to be nothing of an affirmative character which was intended to deceive or mislead, or prevent inquiry, as would toll the statute of limitations. 34 Am.Jur., Limitation of Actions, Sec. 234, pages 191,192; Towels v. Campbell, 204 Ky. 591, 264 S.W. 1107, 50 A.L.R. 175. Whether Mrs. Kirk died testate or intestate it would have made little difference to Mr. Kirk in the interest in her property he could have received, for he could have renounced any will she made. And we agree with the chancellor that Mrs. Headley was guilty of no impropriety actually or impliedly. We conclude that probate of the will was barred by limitations.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Thomas G. HOBBS, Appellant, v. Lucille P. MARKEY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    As Modified on Rehearing Feb. 4, 1966.

      J. Mont joy Trimble, Kincaid, Wilson & Trimble, Lexington, for appellant.
    Gayle A. Mohney and Robert F. Hou-lihan, Stoll, Keenon & Park, Armand An-gelucci, County Atty., Lexington, for ap-pellees.
   CULLEN, Commissioner.

Appellant, Thomas G. Hobbs, who for several years had operated a commercial greenhouse on his land in an agricultural area of Fayette County, made application to the building inspector of the county for a permit to convert his greenhouse improvements into a gasoline filling station. The inspector denied the application. Hobbs appealed to the board of adjustment which, after a hearing at which a number of neighboring landowners protested the application, directed that the permit be granted. Mrs. Lucille Markey, who was one of the protesting neighbors and whose thoroughbred horse farm (famous Calumet Farm) lies across the road from the Hobbs property, appealed to the circuit court. Judgment was entered setting aside the order of the board of adjustment and from that judgment Hobbs has appealed to this Court.

The area in which the Hobbs property lies is zoned as an agricultural district, and the greenhouse is at the best a nonconforming use. (If the facts are as claimed by the appellees, it is a completely illegal use; but we need not go into that.) Under the applicable zoning statute, KRS 100.355 (2), in force at the time Hobbs made application for the building permit, and at the time of the proceedings before the board of adjustment, a nonconforming use could be changed to another nonconforming use “of the same or more restricted classification.” (Under the specific terms of the Fayette County zoning ordinance a commercial greenhouse was in a less restricted classification than a filling station, so the statute would have permitted a change from a greenhouse to a filling station.) However, after the case had been appealed to the circuit court, and while it was there pending, the statute was amended to provide that a nonconforming use may not be changed to another nonconforming use.

The circuit court held that the amended statute was controlling and therefore the proposed change of uses was not allowable.

Hobbs’ first contention is that since the amendment to the statute did not take effect until after commencement of the proceedings in the circuit court, the case must be governed by the statute as it existed pri- or to the amendment. Under the decision in Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223, this contention is not valid.

The next contention is that since Hobbs had incurred substantial expenses for attorney fees in prosecuting his application for a permit, and had devoted considerable time and effort towards obtaining the permit, before the statute was amended, he should be considered to have acquired “vested rights” which could not be extinguished by the amendment of the statute. While a number of decisions have made reference to “vested rights” in this context, we think this involves a misconception. Laws enacted under the police power can and often do take precedence over vested property rights; zoning laws are police power enactments and as such they can and do extinguish some vested rights. Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. However, the extent to which property rights must yield to the police power is determined by a weighing of the private loss against the public benefit. Cf. Bowling v. City of Somerset, Ky., 333 S.W.2d 769.

We think that the rule represented by such holdings as that in Darlington v. Board of Councilmen of City of Frankfort, 282 Ky. 778, 140 S.W.2d 392, protecting a property owner against enactment of or change in a zoning law after he has commenced construction of improvements in reliance upon the existing law, means simply that the courts have felt that the loss the property owner would suffer in such a case is out of proportion to the public interest to be served by the zoning enactment. In our opinion there are two reasons why the rule is not properly applicable in the instant case. First, it appears that the main reason why Hobbs was required to spend time and money in connection with this application for a permit was to establish that his greenhouse was not a completely illegal use. This expenditure well might have been required merely to enable him to continue operating the greenhouse, without regard to the proposed conversion to a filling station, so the expenditure cannot be considered to have created any substantial equity in favor of Hobbs. Second, in the character of a nonconforming use the greenhouse existed to a considerable degree by sufferance rather than by right, so the claimed “right” of Hobbs to continue it or to change it is entitled to little weight in measuring it against the public interest to be served by the zoning law.

It is our conclusion that the lower court properly held applicable the amendment to the zoning statute.

Hobbs maintains that the amendment to the zoning statute should be held unconstitutional as special and local legislation, in violation of Sections 59 and 60 of the Kentucky Constitution. Prior to the amendment the statute relating to second-class cities and counties containing such cities, KRS 100.355(2), which allowed a change of a nonconforming use, was the same as that for first-class cities and counties containing such cities, KRS 100.-069. The amendment to KRS 100.355(2) destroyed this uniformity, and Hobbs argues that the effect was to create a special and local law for second-class cities and their counties. The difficulty with this argument lies in the fact that the statutes relating to zoning in cities of the third, fourth, fifth and sixth classes, and in counties containing such cities, say nothing at all about nonconforming uses. This being so, to accept appellant’s argument would mean that the statutes relating to nonconforming uses in cities of the first and second classes, and their counties, both were unconstitutional as local and special legislation because there was no similar legislation for the other classes of cities. The appellant would gain nothing by our holding unconstitutional the amendment to KRS 100.355(2) because we would also be required to hold unconstitutional the original section, thus leaving no statute at all to authorize a change of a nonconforming use.

We do not intend to imply that any of the nonconforming use statutes are unconstitutional as local and special legislation—we merely are pointing out that the appellant could gain nothing by the acceptance of his argument.

Hobbs maintains that a decision of the board of adjustment may be set aside only if it is arbitrary, and there has been no showing here of arbitrary action. The answer is that the decision was set aside here because the statute subsequently was amended—the authority for the decision was abolished before the decision became irrevocable.

Hobbs seeks to invoke the rule that findings of fact by the board of adjustment are conclusive if supported by any substantial evidence. He says that the board very well may have found that conditions of hardship existed such as to warrant issuance of the permit to Hobbs. Aside from the fact that the board made no specific findings we think it is sufficient to say that there is nothing in the record that would have supported a finding of hardship.

It is argued that the appellee, Mrs. Markey, should be barred by laches from protesting the proposed change of use. Conceivably, because Mrs. Markey made no objection when the greenhouse originally was built, or thereafter during its operation, she might be estopped from objecting to its continued use. But there is no reasonable theory upon which she could be held barred from protesting the proposed conversion to a filling station.

Finally, the contention is made that because Mrs. Markey’s evidence before the board of adjustment did not show that a specific depreciation in monetary value of her farm would result from the proposed filling station, she was not a person “affected by” the order of the board of adjustment within the meaning of KRS 100.480(1), which authorizes appeals to be taken by such persons only. In our opinion the proximity of Mrs. Markey’s farm was sufficient to justify her being considered a person affected by the order, and it was not necessary for her to prove that her property would be depreciated in value. See State ex rel. Housing Authority of St. Louis County v. Wind, Mo., 337 S.W.2d 554; McDermott v. Zoning Board of Appeals, 150 Conn. 510, 191 A.2d 551.

The judgment is affirmed.


author: CALVERT, Chief Justice.

text:
    Grady L. FOX et al., Petitioners, v. Julia THORESON, Respondent.
    No. A-10791.
    Supreme Court of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 2, 1966.

      Lemon, Close & Atkinson, Perryton, Elliott O. Boe, Fergus Falls, Minn., for Julia Thoreson.
    Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, with above firm, for Grady L. Fox and others.
   CALVERT, Chief Justice.

The opinion delivered in this case on October 6, 1965, is withdrawn and the following is substituted therefor.

The principal question in this case is whether an oil, gas and mineral lease executed by Julia Thoreson, as lessor, to Grady L. Fox, as lessee, has terminated, or whether, on the contrary, the lease is still in full force and effect.

Suit was by Julia Thoreson, as plaintiff, against Grady L. Fox, Richome Oil & Gas Company, a partnership composed of J. B. Hermann and R. P. Hermann, J. B. Her-mann and R. P. Hermann, individually, Amarillo National Bank, C. P. Ware, Trustee, and Panhandle Eastern Pipeline Company, as defendants, in trespass to try title to recover title to and possession of a 234.67 acre tract of land in Hansford County, for cancellation of an oil, gas and mineral lease and other related instruments alleged to constitute a cloud on her title, and for certain other relief. Plaintiff’s title and right of possession to the surface estate in the land was not genuinely in issue. The basis for the other relief sought by the plaintiff was that the lease in question had terminated as a matter of law. Amarillo National Bank, C. P. Ware, Trustee, and Panhandle Eastern Pipeline Company have gone out of the case on appeal and their pleadings in the trial court need not be noticed. The suit was defended by Fox and Richome Oil & Gas Company, assignee of a one-half interest in the estate created by the lease, on the ground that as a matter of law the lease had not terminated; alternatively, that the plaintiff was es-topped to assert that the lease had terminated; and, in any event, that they were entitled to recover expenditures made by them in good faith in drilling and equipping a gas well on the land and in connecting the well to Panhandle Eastern’s pipeline, which expenditures they sought to recover by counterclaim.

Issues of estoppel and an issue of good faith improvements were tried to a jury. The jury resolved the estoppel issues against defendants but answered the good faith improvement issue in their favor. As pertinent here, the trial court rendered judgment cancelling the oil, gas and mineral lease, divesting all right, title and interest in the premises out of the defendants, awarding plaintiff a recovery of full title to and possession of the premises, and awarding defendants a recovery of $42,103.-54 for improvements made in good faith subject to certain off-sets established by an accounting. The Court of Civil Appeals affirmed the trial court’s judgment. 390 S.W.2d 308. We reverse the judgments of the trial court and Court of Civil Appeals and remand the cause to the trial court with instructions.

Whether the lease in question has terminated or is still in force turns on a proper interpretation of its provisions. The lease was executed and delivered on December 13, 1958. Its first two provisions contain the only language having any bearing on its duration. They read:

“1. Lessors, in consideration of Ten Dollars and other valuable consideration ($10.00) in hand paid, and of the royalties herein provided, and of the agreements of lessee herein contained, hereby grants, leases and lets exclusively unto the lessee for the purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines and other structures thereon to produce, save, take care of, treat, transport, store and own said products, including salt water, and to house his employees, the following described land in Hansford County, Texas, to-wit: [description of land].
“2. 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 Hugoton Field or about 3000 feet. Such well shall be completed within one hundred twenty (120) days after 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.”

Drilling operations were commenced on the property on March 10, 1959, and a well capable of producing gas in paying quantities was completed on or about April 10, 1959. The well was shut in upon completion and production was not obtained until a pipeline connection was made on September 3, 1960, from which date production continued without cessation to the date of trial and, presumably is still continuing.

All parties are in agreement that the well was timely commenced and completed and that production was not obtained by July 9, 1959, the final day of the 120 day completion period. At this point agreement ends. Plaintiff contends that the lease required production by the end, of the completion period or the estate granted by the lease terminated automatically and reverted to her. Defendants contend that the estate granted by the lease did not terminate automatically at the end of the 120-day completion period, and that, therefore, the trial court’s judgment cancelling the lease and related instruments is clearly erroneous.

The terms of the lease are most unusual; they do not conform to any pattern we have been able to discover by exhaustive research. The lease contains no habendum clause. It does not grant an estate for a definite term. Defendants suggest that the instrument is a “no term” lease. We think not. It is a no term lease only in the sense that it does not expressly provide that it is for a definite period of time or in the sense that it does not contain the usual primary term clause found in modern leases. But these are not the characteristics which historically mark the so-called no term lease. Historically, a no term lease is one which does not impose an obligation on a lessee to drill a well or to produce oil or gas or other minerals as a condition to the continued life of the lease indefinitely. The no term lease, in common use in a past era in the oil and gas industry but now all but extinct, usually, imposes an obligation to drill a well, but, as observed by the Court of Civil Appeals in this case, permits the lessee to forego that obligation and keep the lease alive indefinitely by the payment of rentals. See The Nature of the Property Interests Created by an Oil and Gas Lease in Texas by A. W. Walker, 7 Texas Law Review 1, 13; 2 Summers, Oil and Gas, Perm. Ed., 191; 2 Kuntz, Oil and Gas, 248; 3 Williams Oil and Gas Law, 4; The Law of Oil and Gas by James A. Veasey, 19 Mich. Law Review 161,169. As examples, see Stephens County v. Mid-Kansas Oil & Gas. Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566 (1923); Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601 (1923); Rosson v. Bennett, Tex.Civ.App., 294 S.W. 660 (1927), no writ history. The lease under consideration imposed an obligation on the lessee to commence and complete the drilling of a well within a definite time and expressly provided that the lease would terminate upon failure to discharge the obligation.

But if the lease is not a no term lease, neither does it contain a “primary term” in the sense in which that phrase is commonly used in the oil and gas industry. A “primary term” is said by Williams and Meyers in their book, Oil and Gas' Terms, to be the period, typically five or ten years, during which a lease may be kept alive by a lessee by virtue of drilling operations or the payment of rentals, even though there is no production in paying quantities. See page 189. Their definition or description is not complete. A primary term is also a period of time at the end of which the estate granted will terminate but which estate may be extended by some other provision, usually one for production. That is the sense of the writings by scholars in the field of oil and gas. See Williams and Meyers, Oil and Gas Terms, 189; Veasey, The Law of Oil and Gas, 19 Mich.L.R. 161, 171, et seq.; 2 Kuntz, The Law of Oil and Gas, 252; Sullivan, Handbook of Oil & Gas Law, 95; 3 Williams, Oil and Gas Law, 35; The Nature of the Property Interests Created by an Oil and Gas Lease in Texas by Walker, 8 Texas Law Review 483, 511, et seq. Even if the first two sentences of paragraph 2 of the instant lease may be said to have the “primary term” characteristic of prescribing a period of time during which it may be kept alive by the lessee by drilling operations, neither those sentences nor the third sentence prescribe a period of time at the end of which the estate granted will terminate. The provision in the third sentence for termination of the lease is strictly contingent. It provides for termination only if the lessee fails to commence and complete a well within the time periods prescribed in the first two sentences. Timely discharge of the obligations, absent the fourth sentence of the paragraph, would extend the life of the lease indefinitely, subject only to a special limitation imposed by law which would terminate the estate upon abandonment or cessation of use of the estate for its intended purpose, Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601 (1923); Stephens County v. Mid-Kansas Oil and Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566 (1923); and subject to an implied covenant on the part of the lessee to exercise reasonable diligence in obtaining production and marketing the minerals. See W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929).

Thus far we have interpreted paragraph 2 of the lease as though the fourth sentence were not in it; but proper rules of interpretation require that we consider all of the provisions of the lease, including the fourth sentence of the paragraph, in arriving at its meaning. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 345 (1957); Reynolds v. McMan Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778, 781 (1928). Honoring this rule, the Court of Civil Appeals held, first, that the 120-day period within which the lessee was obligated to commence drilling a well was the primary term of the lease which was to be extended for not to exceed 120 days for completion of the well. Then, giving emphasis to the words, “If however,” which introduce the fourth sentence, the court held that sentence to be alternative to the third sentence; and, having done so, interpreted the words, “as long thereafter,” appearing in the fourth sentence, to refer to the end of the extension period within which the lessee was obligated to complete the well. By this process of reasoning, the court reached the conclusion that the lease 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.” As thus interpreted by the Court of Civil Appeals, paragraph 2 of the lease would be rewritten to read as follows:

“Subject to the other provisions herein contained, this lease shall be for a term of 120 days from this date (called ‘Primary Term’) and such additional time, not to exceed 120 days, as may be necessary to complete a well, and as long thereafter as oil, gas, casing-head gas, gasoline or any of them are produced from the land hereunder. If, however, the drilling of a well on the leased premises is not commenced within 120 days from this date and completed within 120 days after the commencement thereof, then this lease shall terminate as to both parties.”

The lease as thus rewritten would, indeed, create a determinable fee subject to a special limitation which would terminate the estate granted if production were not obtained within the second 120-day period. But the effect of the Court of Civil Appeals’ interpretation is to write into the lease a primary term where, as we have held, none exists; to give the words, “as long thereafter,” a meaning they cannot possibly have in the context in which the parties used them, and to impose a special limitation on the grant by implication. None of these things can be done if sound rules for the interpretation of written instruments are to be followed.

Interpretation of a written instrument is always a quest for the intention of the parties to it. However, language used by the parties should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. The words, “as long thereafter,” considered in context with the other language of the fourth sentence, clearly refer to the time when “production is obtained” and not to the time when the well completion period ends. The words simply serve to continue the lease in force as long after “production is obtained” as “oil, gas, casinghead gas, gasoline or any of them is produced.” Another sound rule of interpretation is that language used by the parties to an oil and gas lease will not be held to impose a special limitation on the grant unless it is clear and precise and so unequivocal in nature that it can reasonably be given no other meaning. Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564, 566 (1945); Walker, 8 T.L.R., 487-491. It cannot be said that the language of paragraph 2 clearly and unequivocally imposes a special limitation on the grant which would terminate the lessee’s estate if production were not obtained within the second 120-day period. We hold, therefore, that the lease did not terminate at that time. We do not consider Clark v. Holchak, 152 Tex. 26, 254 S.W.2d 101 (1953), as analogous or controlling.

Plaintiff does not seek cancellation of the lease on the ground of abandonment or on the ground that it terminated by its own terms at some time subsequent to the well completion period. The legal effect of the fourth sentence of paragraph 2 after that date is not in issue and need not be decided.

Having held that the lease did not terminate at the end of the well completion period, the question of the right of Fox and Richome to recover the value of good faith improvements goes out of the case.

Defendants are wrong in asserting that their motions for an instructed verdict and for judgment notwithstanding the jury’s verdict should have been granted. The full fee title to the surface and the minerals was put in issue by plaintiffs suit in trespass to try title and defendants’ plea of not guilty. Accordingly, the judgments of the Court of Civil Appeals and the trial court are reversed and the cause is remanded to the trial court for entry of judgment in accordance with this opinion.

The parties are granted fifteen days from this date in which to file additional motions for rehearing.


author: SMITH, Justice. GREENHILL, Justice

text:
    Ellis D. WHEELER, Petitioner, v. S. E. WHITE, Respondent.
    No. A-10598.
    Supreme Court of Texas.
    Nov. 10, 1965.
    Rehearing Denied Feb. 2, 1966.
    Adams & Browne, Beaumont, for petitioner.
    Keith, Mehaffy & Weber,. Beaumont, for respondent.
   SMITH, Justice.

This is a suit for damages brought by petitioner, Ellis D. Wheeler, against respondent, S. E. White. Wheeler alleged that White had breached a contract to secure a loan or furnish the money to finance the construction of improvements upon land owned by Wheeler. Wheeler further pleaded, in the alternative, that if the contract itself was not sufficiently definite, then nevertheless White was estopped from asserting such insufficiency. White filed special exceptions to all of Wheeler’s Third Amended Original Petition. The special exceptions asserted that the pleaded contract did not contain essential elements to its enforceability in that it failed to provide the amount of monthly installments, the amount of interest due upon the obligation, how such interest would be computed, when such interest would be paid, and that the alternative plea of estoppel was, as a matter of law, insufficient to establish any ground of recovery. All special exceptions were sustained, and upon Wheeler’s declination to amend his pleadings, the trial court entered its judgment dismissing the case and ordered that Wheeler take nothing from White by reason of his suit. The Court of Civil Appeals has affirmed the judgment of the trial court. 385 S.W. 2d 619. We have concluded that the trial court did not err in sustaining the special exceptions directed at the sufficiency of the contract itself, but that Wheeler’s pleadings on the theory of estoppel state a cause of action. Accordingly, we reverse the judgments of the trial court and the Court of Civil Appeals and remand the cause for trial.

Since the trial court sustained White’s special exceptions to Wheeler’s petition, we necessarily must assume that all the alleged material facts are true. Wheeler alleged that as the owner of a three-lot tract of land in Port Arthur, Texas, he desired to construct a commercial building or shopping center thereon. He and White entered into an agreement, embodied in the written contract involved here, whereby White was to obtain the necessary loan for Wheeler from a third party or provide it himself on or before six months from the date of the contract. The loan as described in the contract, was to be “ * * * in the sum of SEVENTY THOUSAND AND 00/100 ($70,000.00) DOLLARS and to be payable in monthly installments over a term of fifteen (15) years and bear interest at a rate of not more than six (6%) per cent per annum.” Additionally, under the contract White was to be paid $5,000.00 for obtaining the loan and a five per cent commission on all rentals received from any tenants procured by White for the building. Wheeler alleged that he has been ready and willing to comply with his part of the agreement at all times since the contract was made.

After the contract had been signed by both parties, White assured Wheeler that the money would be available and urged him to proceed with the necessary task of demolishing the buildings presently on the site so as to make way for construction of the new building. The buildings on the site had a reasonable value of $58,500.00 and a rental value of $400.00 per month. By way of reassurance, White stressed the fact that in the-event-the money was. unobtainable elsewhere, he would make the loan himseif. Pursuant to such promises Wheeler/proceeded^ to^ raze the old building and otherwise prepare the land for the new structure; thereafter, he was told by White that there would be no loan. After White’s refusal to perform, Wheeler made reasonable efforts to obtain the loan himself but was unsuccessful. In the pleadings Wheeler pleaded the necessary elements of inducement and reliance which entitle him to recover if he can prove the facts alleged.

Where a promisee acts to his detriment in reasonable reliance upon an otherwise unenforceable promise, courts in other jurisdictions have recognized that the disappointed party may have a substantial and compelling claim for relief. The Restatement, Contracts, § 90, says :

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice, can be avoided only by enforcement of the promise.”

According to Dean Hildebrand’s Texas Annotation to the Restatement, Texas follows Section 90, supra. See Ferguson v. Getzendaner, 98 Tex. 310, 83 S.W. 374 (1904); Morris v. Gaines, 82 Tex. 255, 17 S.W. 538 (1891); and others. These early cases do not speak of the doctrine of promissory estoppel in specific terms since those cases were written before the compilation of the Restatement, but, while many of them dealt with subscription transactions or transactions within the statute of frauds, it is readily apparent that the equities involved in those cases are applicable to the instant case. See also: Rouff v. Washington & Lee University, 48 S.W.2d 483 (Tex.Civ.App.1932, error ref.); Thompson v. McAllen Federated Woman’s Bldg. Corp., 273 S.W.2d 105, 108 (Tex.Civ.App.1954, writ dis’m); Allegheny College v. National Chataqua County Bank, 246 N.Y. 369, 159 N.E. 173, 57 L.R.A. 980 (1927); Greiner v. Greiner, 131 Kan. 760, 293 P. 759 (1930); Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365, 42 L.R.A. 794 (1898); 1 Corbin, Contracts, §§ 193-209 (1950); Boyer, Promissory Estoppel: Principle from Precedents, 50 Mich.L.Rev. 639, 874 (1952) ; and Boyer, Promissory Estoppel: Requirements and Limitations, 98 U.Pa.L.Rev. 459 (1950).

The binding thread which runs through the cases applying promissory estoppel is the existence of promises designedly made to influence the conduct of the promisee, tacitly encouraging the conduct, which conduct, although not necessarily constituting any actual performance of the contract itself, is something that must be done by the promisee before he could begin to perform, and was a fact known to the promis- or. As to the argument that no new cause of action may be created by such a promise regardless of its established applicability as a defense, it has been answered that where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise cannot afterward be allowed to revert to the previous relationship as if no such promise had been made. This does not create a contract where none existed before, but only prevents a party from insisting upon his strict legal, rights when it would be unjust to allow him to enforce them. See 1 Williston, Contracts, §§ 139-40 (Rev.ed.1936); and 48 A.L.R.2d 1069 (1956).

The function of the doctrine of promissory estoppel is, under our view, defensive in that it estops a promisor from denying the enforceability of the promise. It was said in the case of Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618, that:

“The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden * * *. This remedy is always so applied as to promote the ends of justice.”

In the case of Goodman v. Dicker, 83 U.S.App.D.C. 353, 169 F.2d 684 (1948), the trial court held that a contract had not been proven but that “ * * * appellants were estopped from denying the same by reason of their statements and conduct upon which appellees relied to their detriment.” In that case, Dicker relied upon a promise by Goodman that a franchise to sell radios would be granted and radios would be supplied. In reliance upon the promise, Dicker incurred expenses in making preparations to engage in the business of selling radios. The franchise was not granted and Goodman failed to deliver the radios. The appellate court in holding that Dicker was entitled to damages for moneys expended in preparing to do business, said:

“We are dealing with a promise by appellants that a franchise would be granted and radios supplied, on the faith of which appellees with the knowledge and encouragement of appellants incurred expenses in making preparations to do business. Under these circumstances we think that appellants cannot now advance any defense inconsistent with their assurance that the franchise would be granted. Justice and fair dealing require that one who acts to his detriment on the faith of conduct of the kind revealed here should be protected by estopping the party who has brought about the situation from alleging anything in opposition to the natural consequences of his own course of conduct. * * ”

The Court, having so held, rendered its judgment that Goodman was liable for moneys expended in preparing to do business under the promised dealer franchise, but was not liable for loss of profits on the radios which were never delivered.

The Court in the Goodman case, in refusing to allow damages based on a loss of anticipated profits, apparently acted in harmony with the theory that promissory estoppel acts defensively so as to prevent an attack upon the enforceability of a contract. Under this theory, losses of expected profits will not be allowed even if expected profits are provable with certainty. The rule thus announced should be followed in the present case. We agree with the reasoning announced in those jurisdictions that, in cases such as we have before us, where there is actually no contract the promissory estoppel theory may be invoked, thereby supplying a remedy which will enable the injured party to be compensated for his foreseeable, definite and substantial reliance. Where the prom-isee has failed to bind the promisor to a legally sufficient contract, but where the promisee has acted in reliance upon a promise to his detriment, the promisee is to be allowed to recover no more than reliance damages measured by the detriment sustained. Since the promisee in such cases is partially responsible for his failure to bind the promisor to a legally sufficient contract, it is reasonable to conclude that all that is required to achieve justice is to put the promisee in the position he would have been in had he not acted in reliance upon the promise. See Goodman v. Dicker, supra; Terre Haute Brewing Co. v. Dugan, 102 F.2d 425 (C.C.A.8th, 1939); Kearns v. Andree, 107 Conn. 181, 139 A. 695, 59 A.L.R. 599 (1928); Fuller and Perdue, The Reliance Interest in Contract Damages, 46 Yale L.J. 52 (Part I) and 373 (Part II) (1937); note 13 Vand.L.Rev. 705 (1960); and note 59 Dickinson L.Rev. 163 (1954).

The judgments of the trial court and the Court of Civil Appeals are both reversed and judgment is here entered remanding the cause to the trial court for trial on its merits in accordance with this opinion.

GREENHILL, Justice

(concurring).

The Court of Civil Appeals denied a recovery of damages here because the contract, it felt, was too indefinite in its provisions under Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962). The holding in Bryant v. Clark was that the contract was not sufficiently definite to be specifically enforceable. The contract here in question, viewed in context, is different in some respects from that in the Bryant case; and I would not extend Bryant v. Clark. See the criticism of that case in 5A Corbin, Contracts 283 (1964).

But assuming that the contract here, under Bryant v. Clark, is not definite enough to be specifically enforced, it is sufficiently definite to support an action for damages. Restatement, Contracts § 370, comment b.

There are Texas cases in which damages have been denied after a holding that the contract was not specifically enforceable. See, e. g., Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505 (1938); and Alworth v. Ellison, 27 S.W.2d 639 (Tex.Civ.App.1930, writ refused). In each of these cases, however, the contracts were held to be within the Statute of Frauds and not enforceable for that reason in a suit for damages. 1 Willis-ton, Contracts § 16 (Rev.ed. 1936). The contract here in question is not within the Statute of Frauds and will support an action for damages.

While I agree with the judgment entered by the Court, it seems to me that the above is a sounder ground upon which to rest our decision.

      . Contract between Ellis D. Wheeler, Party of the First Part, and S. E. White, Party of the Second Part:
      “That said Party of the First Part is the owner of Eots Nine (9), Ten (10), and Eleven (11) (excepting the South one hundred ten (110') feet of Lot Nine (9), all of Block Number Seven (7), of BRINKMAN ADDITION to the City of Port Arthur, Jefferson County, Texas. Said Party of the First Part hereby employs Party of the Second Part for the purpose of securing a loan to finance the construction of improvements upon said property; said improvements to face on the Port Arthur-Orange Highway one hundred forty feet (140') and extend back a depth of eighty feet (80'); said building to be constructed according to plans and specifications heretofore agreed on by the parties hereto. The loan to be made by, or obtained by, Party of the Second Part for the Party of the First Part, and to be in the sum of SEVENTY THOUSAND AND 00/100 ($70,000.00) DOLLARS and to be payable in monthly installments over a term of fifteen (15) years and bear interest at a rate of not more than six (6%) per cent per annum.
      “Said loan is to be obtained on or before six (6) months from date of this contract, either from funds provided by Party of the Second Part or from third persons whom Party of the Second Part may negotiate with to provide such funds. In either. event Party of the First Part agrees to sign all necessary papers required of Lendor to create proper liens.
      “Party of the First Part agrees to pay to Party of the Second Part the sum of FIVE THOUSAND AND 00/100 (§5,-000.00 DOLLARS for his services in making or securing said loan for Party of the First Part. Said FIVE THOUSAND AND 00/100 ($5,000.00) DOLLARS shall be due and payable to Party of the Second Part as soon as theD SEVENTY THOUSAND AND 00/100 ($70,000.00) DOLLARS loan is made available for construction of said premises; and should party of the First Part fail and refuse to pay said FIVE THOUSAND DOLLARS ($5,000.00) when due, Party of the Second Part shall have the right to enforce payment by filing suit in a Court of competent jurisdiction, and Party of the First Part hereby specifically agrees to pay ten (10%) per cent additional on said sum as Attorney Fees and all costs of Court in connection with said suit.
      “This agreement voids and takes precedence over previous agreements by and between Ellis D. Wheeler and S. E. White, concerning the hereinabove described property.
      “Party of the First Part agrees that when said loan has been obtained that he will proceed with all reasonable haste and diligence in having the improvements for which said loan is obtained constructed, and to execute all necessary agreements, liens, etc., that may be required in the process of, and consummating said loan. In the event that Party of the Second Part obtains said loan but Party of the First Part does not use the financing thus obtained by Party of the Second Part for any reason, then Party of the First Part will pay to Party of the Second Part the sum of FIVE THOUSAND AND 00/100 ($5,000.00) DOLLARS for his services in obtaining said loan.
      “In addition to the above, Party of the First Part agrees to allow Party of the Second Part six (6) months exclusive right to secure reliable tenants to occupy seventy (70') feet frontage in the Commercial Building which he contemplates building, said seventy (70') feet fronting on the Port Arthur-Orange Highway; said rentals to be not less than ONE AND 60/100 ($1.60) DOLLARS per square foot per year. Should Party of the Second Part secure tenants to the remaining seventy (70') feet frontage before tenants are secured by Party of the First Part, or others, then Party of the Second Part may secure tenants for the remaining portion of said building. Party of the First Part agrees to pay Party of the Second Part, in addition to the payment of said FIVE THOUSAND AND 00/100 ($5,000.00) DOLLARS as above specified, a five (5%) per cent commission on all rentals paid by tenants obtained by Party of the Second Part; said five (5%) per cent commission to be paid for the life of the lease granted to said tenants.”

      . “Pleading further plaintiff shows the Court that if for any reason said contract is not sufficiently specific and definite, then nevertheless defendant is estopped to so claim and to set up any insufficiency because of the defendant’s act in. entering into., said, contract and exhorting plaintiff to clear the premises to make ready for the construction and defendant’s represen-tations_after the date of said contract to proceed with the demolition of said building's and clearing the site and that the money would be forthcoming and that defendant would obtain said loan and if for any reason said money could not be obtained elsewhere then said defendant would himself loan the money and plaintiff in reliance on said contract and said exhortations and said representations, both in said contract and given verbally by the defendant after the date of said contract defendant is estopped to claim any deficiency of said contract.”