author: BARROW, Justice. POPE, Justice.

text:
    LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellant, v. Natalie M. COLLINS et al., Appellees.
    No. 13837.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1962.
    On Second Motion for Rehearing May 2, 1962.

      Fischer, Wood, Burney & Nesbitt, C. Burtt Potter, Corpus Christi, Joseph C. Ternus, Sinton, Reese Wade, Beeville, for appellant.
    Morrill & Patton, Beeville, William B. Moss, Sinton, for appellees.
   BARROW, Justice.

This is a suit by Natalie M. Collins and others, as plaintiffs, against the Lower Nueces River Water Supply District, as defendant, to recover damages resulting from the inundation of their land, consisting of 1,217 acres, in the reservoir created by the Wesley Seale Dam. The defendant by cross-action sought condemnation. The jury returned a verdict for $346,680.00, upon which judgment was rendered. From that judgment the defendant has appealed. Sometime prior to March 21, 1959, the Lower Nueces River Water Supply District filed condemnation proceedings against Natalie M. Collins et al., but before the hearing was had before the Commissioners, an agreement was made between the parties, that in view of title questions that might be raised, if the District would pay to the Collins landowners a sum of money equivalent to the amount of the highest award of its appraisers, the landowners would file suit against the District in the District Court of San Patricio County, and the District would then cross-act for condemnation, so that the entire controversy might be determined in the District Court. It was further agreed that the payment by the District would be in lieu of the deposit required under Article 3269, Vernon’s Tex.Civ.Stats., and such amount would be credited against any final judgment.

Thereafter, on the 21st day of May, 1959, Natalie M. Collins, Bryant M. Collins Natalie Collins Curry and husband, Demra Collins Trube and ■ husband, and Beverly Collins Meyer and husband, as plaintiffs, filed suit in the District Court of San Pat-ricio County, naming the District as defendant, alleging that it had inundated their land consisting of 1,217 acres, and praying for damages.

Thereafter defendant filed its answer and cross-action seeking to condemn an easement to inundate the surface of plaintiffs’ land lying above the 75-foot elevation contour line or, in the alternative, the fee to such surface. The defendant did not condemn the minerals. In the cross-action defendant pleaded that it had theretofore acquired from the City of Corpus Christi an easement from Natalie M. Collins and husband to the City of Corpus Christi, dated July 31, 1929, granting the rights therein specified, and alleged that the easement sought in this suit was in addition to such previously granted easement. The old easement, among other things, gave the City the right to inundate plaintiffs’ land in the reservoir of the Mathis Dam with the normal water level not to exceed seventy-five feet above mean sea level.

Plaintiffs’ First Supplemental Original Petition alleged that the old easement granted by Natalie M. Collins and husband to the City of Corpus Christi had “terminated by its own terms and by operation of law, and is no longer in force or effect for any purpose whatsoever,” and that the defendant was not entitled to assert any rights thereunder. By trial amendment, plaintiffs pleaded more in detail their asserted reasons why the former easement had expired. The parties stipulated that the date of taking was the day following the closing of the gates of the Wesley Seale Dam on May 8, 1958.

The area of the land that lay above the 75-foot elevation consisted in part of three islands, and in part of other land which lay outside the original reservoir. It was stipulated that the islands contained 228 acres, and the other portion 150 acres. The area below the 75-foot elevation contained 840 acres. It was the right to inundate the 378 acres above the 75-foot elevation that the District sought to condemn. Plaintiffs asserted the right to recover damages for putting additional water on the area below the 75-foot elevation, including damages to the minerals. The effect of the Wesley Seale Dam would be to raise the water to 94 feet above mean sea level and inundate all of the 378 acres.

The appellant, defendant below, by its first point contends that the court erred in admitting in evidence plaintiffs’ Exhibit No. 54, being a plat showing the islands subdivided into lots. By its second point, appellant assigns as error the court’s action in admitting in evidence plaintiffs’ Exhibit No. 55, being a plat of the islands subdivided into lots and colored according to their desirability.

The record shows that these plats were made by tracing a map of these islands and marking off the acres into lots. The plats showed a causeway leading from the mainland to a road which proceeded around the perimeter of Island No. 1. There were other causeways leading to Islands Nos. 2 and 3, with roads around their perimeter. On each side of the roadways the area is marked off into lots. One row of lots has water frontage and another row has no water frontage. However, at regular intervals an open roadway or space is left between waterfront lots for the proposed owners of the interior lots to get down to the water. At the end of each roadway a proposed pier or boat dock is drawn on the plat. In the center of Islands Nos. 1 and 2, there is an area which is not divided into lots. These plats were prepared by appellees’ witness Bailey Cox, who testified that the actual drawing was done by one Alvin Fluery, an expert draftsman. There was no survey made on the ground. The islands have never been subdivided hut are still in raw acreage. The record does not show just when these plats were made, but it is obvious that they were made for use in the trial of the case. The plat introduced as Exhibit No. 55 is a duplicate of Exhibit No. 54, except that all of the lots having lake frontage have been colored according to Cox’s idea of their desirability for residences or campsites. The most desirable are colored in red, the next in green, and the least desirable in blue. There seem to be 367 lots in, all; 209 are lakefront and 158 are inside lots. Of the lakefront lots, 96 are in red, 78 in green, and 35 in blue. All of the inside lots were left uncolored. Cox testified that it was planned to reserve them for future sales. These plats were admitted over appellant’s objection, however, the trial court admitted them for the limited purpose of showing the adaptability of the land for subdivision purposes. We are of the opinion that these plats, under the record in this case, were not admissible for any purpose.

One of the most hotly contested issues in the case was whether or not these islands were adaptable for subdivision purposes. Appellant’s contention was that they were not, and that their highest and best use was for agricultural and grazing purposes, the only use to which the islands had ever been put. It is undisputed that these islands were raw acreage land, unsubdivided, except in the minds of the drafters of these plats.

It has been repeatedly and consistently held, that where the property condemned is raw acreage it is not proper to admit in evidence hypothetical plats of nonexistent subdivisions, the reason being that they tend to cause the jury to value the land as lots. The jury is to value the tract of land, and that only. They are not to determine how it could best be divided into building lots, nor to conjecture how such lots could best be sold, nor for what price. Opinion testimony as to the value must be based upon the value of the land as an entirety and not in parcels, unless there is some reason to value it in parcels, such as differences in the nature of the land. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Continental Development Corp. v. State, Tex.Civ.App., 337 S.W.2d 371; Minyard v. Texas Power & Light Co., Tex.Civ.App., 271 S.W.2d 957; Dickey’s Estate v. Houston Ind. School Dist., Tex.Civ.App., 300 S.W. 250; Denison & P. S. Ry. Co. v. Scholz, Tex. Civ.App., 44 S.W. 560; Davidson County Board of Education v. First American Nat. Bank, Trustee, Sup.Ct.Tenn., 301 S.W.2d 905; Pennsylvania S. V. R. Co. v. Cleary, 125 Pa. 442, 17 A. 468. The rule is subject to the exception that such plats are admissible in evidence where they are relevant to prove some issue in the case and are limited to that purpose. Coastal Transmission Corp. v. Lennox, Tex.Civ.App., 331 S.W.2d 778; City of Austin v. Can-nizzo, supra. But this case does not come within the exception. In this case there was not, and could not have been, any dispute that these islands could be divided into lots, blocks, streets and alleys. Simply by the use of a map thereof, and a pencil and ruler, they could have been divided into as many lots of as many shapes and sizes as the draftsman might imagine. We are of the opinion that the introduction of these plats would cause the jury to value this property by lot rather than what the entire tract would sell for under the market value rule. We think the court erred in admitting them. Moreover, we are of the opinion that the error was harmful to appellant. When the colored map was shown to the jury, showing the desirability by colors, the record shows that appellees’ witnesses geared all their opinions as to the value of the land to these plats, thus valuing the land by the number of Jots shown and the prices for which they would sell. The hypothetical subdivisions were particularly injurious to appellant in this case, because prior to their introduction Bryant Collins, one of the joint owners of the land, testified that it was, and for a long time had been, the intention of the owners of these islands to subdivide them and sell them out as lots. Thus, the normal reaction of the jury was to see how much profit the owners could make, over and above expenses, by selling the lots at retail.

Appellees contend that they did not offer any evidence as to the value of the lots, but inquired only as to the value of the land by the acre, and that any damage to appellant was caused by its cross-examination of the witnesses. We do not agree. It is true that on direct examination appellees did not ask the witnesses directly for a valuation of the lots in money, but at the conclusion of direct examination of the witness Cox the jury had before them a picture of these islands divided into 367 lots, 209 of which were lakefront and highly desirable for restricted residence property. They had before them a calculation of how many of those lots could be cut out of an acre of land, and estimates of the cost of paved roads, causeways, piers, boat docks, and other ¡probable expenses of actually subdividing, promoting and selling the property. All that was left to be done was a mere matter of calculation. It is true that appellant went more into the details on cross-examination than appellees did on direct examination, but we think the damage was done and appellant had the right to cross-examine the witnesses regarding these matters, and did not waive its objection by such cross-examination. Cathey v. Missouri, K. & T. R. Co., 104 Tex. 39, 133 S.W. 417, 33 L.R.A.,N.S., 103. It would be pure speculation to say what the jury’s verdict would have been had these plats not been introduced, but, from the record as a whole, the conclusion is inescapable that their introduction, under the circumstances, was calculated to cause and probably did cause the rendition of an improper verdict and judgment. Rule 434, Texas Rules of Civil Procedure.

Appellant contends that appellees are not entitled to recover the market value of the three islands based upon their use for subdivision purposes, because at the time of the taking said islands had no market value for such purposes. In the alternative, it urges that the evidence is insufficient to show that the property had a market value for such purpose, and in a further alternative, that any evidence tending to show such value is too speculative and conjectural to support a jury finding. Appellant further contends that the court erred in including in the definition of market value, the following: “ * * * taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.” It urges that under the facts in this case, the instruction could only refer to the use of the property for subdivision purposes, because on the date of the taking it had become common knowledge that the Wesley Seale Dam would he constructed, and that the property of the appellees, as well as other lands along old Lake Mathis, below the 94-foot level, would be submerged. In that connection appellant contends that the court should have given its requested instruction that the highest and best use for said land was for agricultural and grazing purpose's. Under the view we take of appellant’s contention, we do not deem it necessary to separately discuss the various points.

The historical background of this controversy begins in the year 1929, when the City of Corpus Christi purchased an easement on the tract of land now owned in fee by appellees, for the obvious purpose of developing what has been known as Lake Mathis. That easement granted, among other things, the right to inundate all of the land up to 75 feet above mean sea level. This easement is now owned by appellant. Lake Mathis has been in existence since shortly after the original easement. The islands are above the 75-foot level and have never been flooded.

Appellant’s contention is rather novel and is one of first impression in this State. At least, this exact contention, so far as we have been able to ascertain, has not been raised in any Texas case. Nevertheless, we are of the opinion that appellant’s contention is without merit and cannot be sustained. The Supreme Court, in United States v. Chandler-Dunbar W. P. Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, held that the value of property taken by eminent domain should be fixed as of the date of the proceeding and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken. The Court, in Murray v. United States, 76 U.S. App.D.C. 179, 130 F.2d 442, in passing upon the question here involved, said:

“The value of the land was to be determined as of the time of the taking. Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240. And the duty of the jury was to fix the value without regard to any increase or decrease resulting from the government project. United States Chandler-Dunbar W. P. Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063.”

Mr. Lewis Orgel, 1 Valuation, Under Eminent Domain, 2nd Ed., § 105, in discussing the question, said: “It would be manifestly unjust to permit a public authority to depreciate property values by threat to erect an offensive structure, and then to take advantage of this depression in the price which it must pay for the property.” A statement to the same effect is found in 4 Nichols on Eminent Domain, 3rd Ed., 126. The Supreme Court of Pennsylvania, in passing upon the question, in Hermann v. North Pennsylvania R. Co., 270 Pa. 551, 113 A. 828, pointed out that to confer such •a benefit on the taker would be “illegal confiscation * * * feebly disguised.”

We think it is safe to say that the above stated rule is applicable in Texas. While we have not found any case in which -the matter of depreciation of the value of -property was involved, yet, in each case we have examined involving the advancement of the market value of property by reason of the improvement contemplated in the condemnation proceeding, it has been held that, where a person’s entire property is included in a general proceeding of condemnation for a particular purpose, it is not permissible to consider that purpose or 'the result- thereof in estimating the owner’s compensation. State v. Vaughan, Tex. Civ.App., 319 S.W.2d 349; Housing Authority of City of Dallas v. Hubbard, Tex. Civ.App., 274 S.W.2d 165; City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S. W. 502, 505. In City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, the Supreme Court had before it a case involving the condemnation, for school purposes, a tract of 4.57 acres of land out of a larger tract. One of the questions presented was whether the value of the 4.57 acres for commercial purposes, could be considered in the face of contrary zoning restrictions. The Court held that where it is-shown that there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be considered. The Court said:

“In the willing seller-willing buyer test of market value it is frequently said that all factors should be considered which would reasonably be given weight in negotiations between a seller and a buyer. 29 C.J.S. Eminent Domain, § 159, page 1023. This would exclude consideration of purely speculative uses to which the property might be adaptable but wholly unavailable but would permit consideration of all uses to which the property was reasonably adaptable and for which it was, or in reasonable probability would become, available within a reasonable time. Orgel in his text on Valuation Under Eminent Domain, Vol.’ 1, § 30, p. 141, footnote 113, says: ‘The test is well phrased in United States v. 3969-59 Acres of Land (D.C.), 56 F.Supp. 831: “To warrant admission of testimony as to the value of land for purposes other than that to which it is being put at the time of the taking, it must first be shown: 1. That the property is adaptable to the other use. 2. That the other use is reasonably probable within the immediate future, or a reasonable time. 3. That the market value of the land has been enhanced thereby.” ’ ”

Thus, if there was any doubt about the determination of the market value of the property as affected by the probable future uses, extending beyond the time when the property was taken, that doubt has been set at rest by the holding in the Can-nizzo case. In valuing the land the jury must consider the use to which the land is adaptable in the future in its present condition, unaffected by the use to which it is to be put by the condemnor. The jury in effect was asked the question: What is the market value of these islands, considering all of the uses to which the property was reasonably adaptable on May 8, 1958, and for which it either is or in all reasonable probability will become available within the reasonable future? Surely, the question presupposed and assumed that the property would remain in the same condition and situation as it was on the date of the taking, unaffected by the project for which it was taken. To apply appellant’s theory to the situation, the question would have meant: What would the willing buyer have been willing to pay for these islands on that date, for subdivision purposes, agricultural purposes, or any other purpose, assuming that tomorrow or the next day they will be submerged beneath nineteen feet of water? The answer would have to be, nothing. What we have said applies to appellant’s contentions, as we understand them, both as to diminution of market value by reason of the threat of condemnation and to the destruction of any market value by the actual taking.

Appellees offered much evidence in the case for the purpose of showing the adaptability of these islands for subdivision purposes and uses as such. Pictures were introduced, showing the islands as they were at or about the time of the taking. They showed that while the islands were separated from the mainland and from each other by the waters of Lake Mathis, yet they are reasonably close to each other and to the mainland. There is evidence in the record showing the islands can be readily connected with each other and the mainland by bridges or causeways. There is evidence showing that at the time of the taking and for years prior thereto, there was an increasing demand for lake-front property, generally comparable to these islands, which affected the market value of such property for subdivision purposes. There is evidence showing that some time after September, 1952, a large portion of these islands was cleared and put in cultivation and was farmed during the years 1955, 1956, 1957 and 1958. The islands were reached by a causeway constructed by appellees. To further detail the evidence would unduly lengthen this opinion. We think it is fair to say that all the evidence, coming from all the witnesses, shows that notwithstanding the suitability or desirability of this property, on account of the imminence of the condemnation of this lake-front property during the years immediately prior to the date of taking, no one was interested in buying such property, either these islands or the shoreline property on the mainland. There were just no sales, for subdivision, agricultural, or any other purpose. Nobody wanted to buy property which was about to be condemned! The evidence is sufficient to authorize the jury, in passing upon the market value of these islands, to take into consideration their adaptability for subdivision purposes and their value for such purposes.

Appellant, by several points, contends that the court’s definition of “market value” is on the weight of the evidence. We overrule that contention. The definition is proper under the evidence. The reference to the highest and best uses to which the property is adaptable covers both agricultural, as contended by appellant, and subdivision purposes, as contended by appellees. But, in view of another trial, we deem it proper to suggest that, upon proper objection, the method of submission of Special Issues Nos. 1 and 2, would be on the weight of evidence. The three islands contain 228 acres and the other land contains 150 acres. Appellant’s theory is that the highest and best use of all the land is for agricultural and grazing purposes, while appellees’ contention is that 210 acres of the islands has a highest and best use for subdivision purposes, and that the remaining 18 acres is agricultural or grazing land. We are of the opinion that when the court submits the issue of the market value of the 210 acres in one issue, and of the 168 acres in another issue, such issues would tend to indicate to the jury that the court is classifying the land.

Appellant contends that the court .erred in submitting Special Issues Nos. 5 and 6 to the jury. These issues relate to the market value of the appellees’ right of reversion of the 840 acres of land which have been continuously submerged under the 1929 easement. The basis of appellant’s contention is that inasmuch as the 1929 easement continues for as long as appellant uses it for reservoir purposes, any testimony or finding as to the market value of such right of reversion would be too remote, conjectural and speculative to be the basis of a judgment. We agree with appellant.

The effect of this condemnation is to acquire the right to put an additional layer of nineteen feet of water upon that which is already there, and which appellant owns the right to keep there so long as it chooses to use the property for a reservoir. We agree with appellees that they have a right óf reversion in the land. The question, however, is: What is the value of this right of reversion? The only effect of this condemnation is to make the remote possibility of a reversion even more remote. We think the holding of the Circuit Court of Appeals in People of Puerto Rico v. United States, 1 Cir., 132 F.2d 220, is applicable and controlling. In that case the Court said:

“We are aware of no rational means by which to determine the value of the possibility that at some indefinite time in the future the land might revert to the People of Puerto Rico. All that can be done is to venture a guess, and it is elementary law that damages cannot be assessed by mere guesswork.”

All points not discussed are overruled. For the error above pointed out, the judgment is reversed and the cause remanded.

This Opinion was written by Associate Justice H. D. BARROW before his accident on December 22, 1961, and is now approved by Chief Justice W. 0. MURRAY and Associate Justice JACK POPE.

On Second Motion for Rehearing

POPE, Justice.

On motion for rehearing by appellees, this Court severed and partially affirmed the trial court’s judgment because appellant had made no assignments of error with respect to portions of the judgment. We altered our original judgment by affirming the award for oil, gas and minerals under all of the 1217 acres of land. We also affirmed the award for the surface estate of 168 acres lying above the seventy-five foot elevation and comprising a part of the pasture land, but not a part of the three islands. We affirmed the award for the surface estate of 840 acres below the seventy-five foot elevation, which was on occasions above the water and used in connection with the 168 acres of pasture land. Finally, we affirmed, with respect to the damages to crops and pumps in a former flood. While appellant preserved no points, it now has filed its motion for rehearing and urges that those awards are so hitched to the condemnation award about which it does complain, that a severance is not proper.

It quotes Phillips v. United States, 9 Cir., 243 F.2d 1, which says: “If we attempt to cut a condemnation proceeding into slices, it bleeds.” Appellant also cites Eagle Lake Improvement Co. v. United States, 5 Cir., 160 F.2d 182, in which the Court states that surface lands for which a residential use is claimed is inconsistent with a claim for subsurface oil values. Hence, the two damages are so tied together that they can not be severed. See also, Phillips v. United States, 243 F.2d 1.

Accordingly, we withdraw the opinion we wrote on appellees’ motion for rehearing. Our original opinion will stand, except that appellees will recover the sum of $8,-320 as damages to crops and pumps in a former flood.

Costs are adjudged against appellees.


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    Glen A. MARTIN, Appellant, v. Harris P. DARCY, Appellee.
    No. 13907.
    Court of Civil Appeals of Texas. San Antonio.
    April 25, 1962.
    Rehearing Denied May 23, 1962.
    Matthews, Nowlin, Macfarlane & Barrett, Richard E. Goldsmith, San Antonio, for appellant.
    Edward Penshorn, Bradford F. Miller, San Antonio, for appellee.
   POPE, Justice.

Plaintiff, Harris P. Darcy, sued Glen A. Martin for breach of a farm-out agreement, and recovered $3,500 damages under the express terms of the contract, and an additional $3,000 for loss of profits. Martin, by this appeal, insists that the trial court erred (1) in submitting the first special issue which called upon the jury to construe the legal instrument, (2) in submitting the second issue and rendering judgment upon it, when there was no evidence in support of the issue, and (3) in making its own findings upon the amount of lost profits, when there was no evidence of the elements of lost profits. In our opinion, Martin, is correct in his contentions about the first and third points, and wrong about the second.

In early July of 1959, Darcy owned the minerals under 671 acres of McMullen County land by force of an assignment from Sun Oil Company. Sun’s assignment obligated Darcy to “begin by August 10, 1959, the actual drilling of a well” on the tract. Darcy also held three dry hole contribution letters by which Ohio Oil Company agreed to contribute $6,500, Western Natural Gas Company, $3,150, and El Paso Natural Gas Company, $3,150 toward the drilling of a well. Sun’s assignment to Darcy and each of the dry-hole letters to Darcy, prohibited his assignment without prior written consent.

Darcy and Martin began negotiations by which Darcy would assign his rights and obligations to Martin. On July 29, 1959, Martin accepted the terms of a letter which Darcy had written him. By that agreement, Darcy assigned his rights and obligations to Martin. The letter described each of the four documents which Darcy had from the four oil companies. Martin assumed the obligation to drill the well. The contract provided that Darcy would receive $1,500 in the event Martin completed the well as a producer, or $3,500 in the event it was a dry hole. Darcy also retained one-eighth of the oil and other minerals in the property.'

Martinis letter of transmittal, from San Antonio to Darcy in Houston, called on Darcy to send him the consents to the assignment from the four oil companies. On July 31, upon receipt of Martin’s acceptance, Darcy wrote each oil company based in Texas, and asked for its consent. On August 4, Martin wrote Darcy, “since I do not have letters giving permission for you to assign cannot take the deal as outlined in our letter of agreement.” On August 6, Darcy went to Martin’s office with consents from Ohio and Western. Martin refused to examine or consider them. On August 7, Darcy returned to Martin’s office with the Sun consent and a telegram from El Paso, which stated that its consent was already mailed. It was received on August 8. During Darcy’s visit on August 7, he delivered a' letter to Martin with attached consents from all but El Paso Oil Company, whose telegram was attached. Darcy by his letter called on Martin to comply with his drilling obligation. Martin did not drill the well. It was later drilled by other persons and was completed as a dry hole. The parties treat the well as a dry hole. Darcy claimed that he was entitled to the contract amount of $3,500 because the well was a dry hole. Martin claimed that Darcy breached the contract by failing to furnish the consents.

Darcy’s first point is that the court improperly asked the jury whether the parties to the contract contemplated and agreed that Darcy would obtain the consents to the assignments in time for Martin, in the exercise of reasonable diligence, to commence the actual drilling of the well by August 10. The jury said “No”. According to the jury, the parties contemplated that Martin would proceed in disregard of the four contracts which required consents. This advice from the jury is not helpful, for Martin, as a matter of law, could move on the lease premises without Sun’s consent only at the risk of being a trespasser. Cage Bros. v. Whiteman, 139 Tex. 522, 163 S.W.2d 638; Kelvin Lumber & Supply Co. v. Copper State Mining Co., Tex.Civ.App., 232 S.W. 858. The first special issue, however, was surplusage, because the second was a proper submission.

Defendant Martin’s next point is that there is no evidence which supports the jury’s finding to the second issue. The jury found that Darcy obtained the required written consents in sufficient time for Martin, in the exercise of reasonable diligence, to have commenced the actual drilling of the well by August 10, 1959. Martin’s sole attack upon that finding is that there is no evidence to support it. Our search of the record shows that there is much direct evidence and many inferences which support the finding. When Martin accepted the contract and mailed his letter on July 29 from San Antonio to Houston, he knew that he had only thirteen days before the crucial date. In a sense, both parties knew from the beginning that time was limited. Both parties knew that the consents were necessary. Sun’s consent to move on the premises was available on August 7. All consents were in hand on August 8. Martin still had August 8 and all of August 9 and 10, to begin actual drilling. Armstrong v. Palmer, Tex.Civ.App., 218 S.W. 627; Goldman v. Broyles, Tex.Civ.App., 141 S.W. 283; Andres v. Armstrong, 168 Cal.App.2d 344, 335 P.2d 1005; Heinsch v. Kirby, 223 Minn. 302, 26 N.W.2d 363. The question is not whether this Court disagrees with the finding, but to decide if there is more than a scintilla of evidence upon which the jury could have made such a finding. Martin details the steps incident to actual drilling. One must reach an agreement with a driller; a drilling permit must be obtained; the site must be surveyed, staked and cleared; pits must be dug; water must be obtained ; the rig must be moved, set up, and the bit actually turned. However, the evidence in the record shows that these steps usually are taken simultaneously. While one thing is being done, others are also being executed. There is proof that many steps, short of entering upon the premises, as normal procedure, would be taken even before Sun gave its consent. The proof shows that Martin had in fact already engaged a driller for the well, but let him go on August 4. The driller’s rig was in Live Oak County, which adjoins McMullen County, and was available. Martin could have taken steps to obtain a drilling permit. The proof from several witnesses is that even after August 8 he could have obtained a permit as a routine matter. The Railroad Commission has an office in San Antonio. There was evidence that applications may be made by telegraph and are often granted on the same day. One witness testified at length and offered several of his former telegraphic applications and permits in evidence. One permit was obtained in three hours. Witnesses testified that staking, clearing and digging the pits would take about half a day, and such work is usually and often done while the rig1 is moving along the highway to the premises. Mr. Scott, an experienced oil man, testified to these facts. He stated that men and equipment for this work were readily available. Mr. Rig-by, a driller, testified that it was not unusual for a driller to move and be completely rigged up on the same day. The most com>-pelling evidence, however, is supplied by Martin himself. When Darcy went to Martin’s office on August 6, after receiving Martin’s letter that he was withdrawing from the deal, according to Darcy, Martin told him, “I don’t need an extension. I can drill it tomorrow if I want to.” Certainly there was evidence, and the court properly submitted the dispute to the jury. On the basis of that jury finding, Martin had time to commence actual drilling, and in failing to do so breached the contract.

The trial court granted Darcy an additional $3,000 for lost profits. This was error. There were no jury issues submitted, but the court found as facts that Darcy proved that his retained one-eighth mineral interest had a market value of $6,000, ¿nd that he would have sold one-half of it for $3,000 prior to completion of the well. Martin urges that there is no evidence in the record which supports such findings. The point is good. For breach of a contract to drill one may recover the loss of value of royalty and mineral interest during drilling but prior to completion as a dry hole. Hardwick v. Jackson, Tex.Civ.App., 315 S.W.2d 440; Guardian Trust Co. v. Brothers, Tex.Civ.App., 59 S.W.2d 343, 345. Such a recovery gives the wronged party the benefit of performance of the contract. Whiteside v. Trentman, 141 Tex. 46, 170 S.W.2d 195.

It is not the rule of law, hut the failure to prove the elements of such damages which defeats Darcy’s recovery of profits. White-side v. Trentman, supra, permits such recovery upon proof (1) that the profits may reasonably be supposed to have been in the contemplation of the parties when the contract was made, and (2) that Darcy would have sold his interest prior to completion as a dry hole. Darcy’s proof failed to meet either of these tests.

■ The critical time at which profits must have been in the contemplation of the parties, according to Whiteside v. Trentman is “when the contract was made.” Accord, Atchison, T. & S. F. Ry. Co. v. Butler, 127 Tex. 154, 93 S.W.2d 143; Missouri, K. & T. R. Co. of Texas v. Belcher, 89 Tex. 428, 35 S.W. 6; 17 Tex.Jur.2d 62. The only proof as of that time is that it is well known in the oil industry that some persons do make sales of their royalty and mineral interest during drilling operations. But it is equally well known that other persons hold their interest in the hope of a producing well. The proof, therefore, was that some sell and others do not. This record does not show that Martin, or even Darcy, at that time, had any reason to believe that the mineral interest would or would not be sold. The proof shows that nobody knew what would be done.

The general rule about lost profits is stated in Whiteside v. Trentman, and it is apparent that the rule is taken verbatim from Hadley v. Baxendale, 9 Exch. 341, 26 Eng. L. & E. 398. The balance of the Baxendale rule, with respect to notice of contemplated profits, is applicable to this case for the reasons that are well expressed by that opinion:

“We think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if those special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, for such a breach of contract. For had the special circumstances been known, the parties might have expressly provided for the-breach of contract by special terms as to the damage in that case, and of this advantage it would be very unjust to deprive them. The above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract.”

Darcy did not prove by more than a scintilla of evidence the other element— that he would have sold his retained interest. There is scarcely anything in the record about the matter. Darcy stated that he could have sold one-half of his retained interest. He said he had á verbal trade. The person with whom he said he had such a trade, described it as a “tentative” deal which was never consummated. There was no evidence, as that term is used in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, that Darcy had a $3,000 loss of profits.

The judgment is affirmed insofar as it awarded damages of $3,500 provided in the •contract. It is reversed and rendered by •denying the additional recovery of $3,000 for lost profits. Since the appeal was •prosecuted with effect, costs are adjudged against appellee, Darcy.

      . “A farm-out agreement is a comtract to assign oil and gas lease rights in certain acreage upon the completion of drilling obligations and the performance of any other covenants and conditions therein contained. It is an executory contract. It is largely used in cases where the owner of a lease is unable or unwilling to drill on a lease which is nearing expiration, but is willing to assign an interest therein to another who will assume the drilling obligations and save the lease from expiring. Often the owner of the lease retains an overriding royalty or a carried interest as his consideration.” Institute on Oil and Gas Law and Taxation (Fifth Annual), p. 69.


author: CHADICK, Chief Justice. DAVIS, Justice.

text:
    Marvin ELY, Appellant, v. Edward E. REICHE et al., Appellees.
    No. 7369.
    Court of Civil Appeals of Texas. Texarkana.
    May 8, 1962.
    Rehearing Denied May 29, 1962.
    Blades, Crain, Slator & .Winter, Houston, for appellant.
    Will Wilson, James H. Rogers, Tom Bur-rus, Attys. Gen., Austin, William R. Long, III, University of Texas, Austin, Smith & Lehmann, W. Scott Red, Houston, for ap-pellee.
   CHADICK, Chief Justice.

Although it is somewhat unsatisfactory to do so, reference will be made to the dissenting opinion for the essential facts in this case. Avoiding repetition is to be preferred to increasing the literary output of this court in disposing of the case.

It seems settled beyond doubt that the declarations of the Testator, Mrs. McLeod, have no probative weight as proof of the conduct, words, or acts of Edward E. Reiche that are claimed to have exerted an undue influence upon her in making her Will. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Self v. Thornton, Tex.Civ.App., 343 S.W.2d 485, N.R.E.; 1 Texas Law of Evidence 666, Sec. 894. Mrs. McLeod’s declarations in that respect are to be disregarded as evidence of undue influence.

The record shorn of Mrs. McLeod’s declarations contains no circumstance or evidence of conduct, acts, or statements from which it may be inferred or deduced that appellee Reiche exerted a devious, malign and insidiously compelling pressure to overcome or subvert the free volition of Mrs. McLeod in making' a testamentary-disposition of her property.

A practicing physician testified by deposition. Four of the questions propounded to him, and the answers thereto, were offered in evidence by the appellee, and were read to the jury over the objection of the appellant that the questions were leading. The trial court’s error in permitting the questions and answers to be read to the jury, though the questions were leading, are not shown to have amounted to such a denial of the right of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the cause. Of course leading and suggestive questions should be avoided in the interest of orderly procedure and justice, but this error of law does not appear to have had any matérial effect upon the outcome of the case when the record as a whole is considered.

, No error requiring a reversal of the judgment is shown. This court must affirm tile trial court judgment, and it is so ordered.

FANNING, J., concurs in affirmance.

DAVIS, J., dissents.

DAVIS, Justice.

I dissent. The following was written to be the opinion of the Court. I now file it, with minor changes, as my dissent.

Dorothy Calvert McLeod, a widow, executed a Will on June 20, 1958. She died July 16, 1958. The Will was filed for probate on July 22, 1958. She was 49 years of age at the time of her death. She died of cancer. By the Will, she willed to the appellant $500.00. She willed to the appellee Edward E. Reiche 300 shares of stock. She directed the Independent Executor, appellee Reiche, to dispose of all her personal effects, becáuse he was thoroughly familiar with her affairs and wishes. The rest and residue of her estate, she willed to The Social Service Patient Welfare Fund of M. D. Anderson Hospital.

Appellant filed a contest in the probate court. From an Order in the probate court admitting the Will to probate, appellant perfected an appeal to the District Court. In the District, as in the Probate Court, he contested the Will on the grounds that Mrs. McLeod lacked testamentary capacity at the time of making the Will, and that the Will was obtained as the result of undue influence exerted over her by the appellee, Edward Reiche, the principal beneficiary under the Will.

In the trial to a jury, the jury returned a verdict that Mrs. McLeod had testamentary capacity at the time of making the purported Will; but, Mrs. McLeod was acting under undue influence on the part of Edward Reiche at the time of the signing of the.purported Will. Appellant filed a motion for a judgment. The appellee filed a motion to disregard the findings of the jury that Mrs. McLeod was acting under undue influence on thé part of Edward Reiche at the time of signing the purported Will on the grounds that there was no evidence to support such finding. The trial court sustained appellee’s motion. A motion for new trial was overruled, and the appellant has perfected his appeal.

By his first two points, appellant takes the position that the trial court committed errors in finding that no evidence was admitted to show undue influence. He says 'the evidence was sufficient. The evidence of the exercise of undue influence was-more than ample to support the jury’s verdict and finding to that effect. I will outline some of the evidence that will support the jury’s finding.

The evidence discloses that prior to the time she made the purported Will she made a trip to Europe in 1956; that she made a Will in favor of the appellant. There was no evidence as to what became of that Will. There was testimony that Mrs. McLeod was aware that if she died intestate, that her property would go to her only surviving relative, the appellant. The evidence shows that Mrs. McLeod was extremely fond of the appellant, and prior to obtaining her last employment, she had sought employment near Washington, D. C., the place where the appellant lived, so as to be nearer to him.

Prior to Mrs. McLeod’s last illness, Edward Reiche had been her advisor and confidante. He was thoroughly familiar with her affairs. A letter addressed to Reiche on the same day she signed the Will, which letter was prepared by the attorney who actually prepared Mrs. McLeod’s Will that was signed on June 20, 1958, is proof that he was her confidante. Paragraph 4 of the purported Will reads as follows: “I, Dorothy Calvert McLeod, hereby direct that all of my personal effects are to be disposed of at the direction of my Independent Executor, hereinafter named, who is thoroughly familiar with my affairs and my wishes in that regard.” (emphasis added).

She appointed Edward Reiche as Independent Executor. In the letter that she signed on June 20, 1958, to Edward Reiche the first paragraph reads as follows: “You are, of course, thoroughly familiar with my affairs from my having discussed the same with you.” (Emphasis added). The last paragraph of the letter reads as follows: “Any of my other personal effects you may dispose of as you deem fitting and proper.” That letter was written by Attorney Red who prepared the Will.

Mrs. McLeod had, prior to her last illness, been friendly with Reiche and his wife. Prior to her death, she had often listed Mrs. Reiche as the person to be notified in case of an emergency. Prior to her death, after the purported Will was signed, she refused Reiche permission to come into her room, and she did not list Mrs. Reiche as the person to be notified in case of an emergency.

Mrs. McLeod became ill in March of 1958. She had an exploratory operation. They discovered that she had terminal cancer of the lower large intestines. They removed part of her large intestines. Thereafter, she had a colostomy (no control over her bowels). She could not live more than a year. She immediately began to lose weight, and always suffered severe and excruciating pain. Prior to that time, she was apparently a healthy woman, was jovial, and enjoyed living. After the operation, she became depressed. She knew her mother and father had died of cancer. She knew that her husband had died in 1952 of leukemia, a form of cancer. She had no children. She also knew that death was not far away. As testified by one of the nurses: “It amounted to pain and depression, which is common with cancer patients. You know, a person who is about to be electrocuted, it isn’t the sentence he pays for his crime that kills him, its that long period of waiting.”

Prior to making the Will, Mrs. McLeod told witnesses on many occasions that the Reiches were insisting that she make a Will, and that it looked like the Reiches were trying to get everything. Reiche called an attorney, Scott Red, a stranger to Mrs. McLeod, and asked him if he would prepare the Will. Prior to making the Will, she told Reiche that she did not desire to make a Will, and Reiche called Scott Red, and told Red that she did not desire to make a Will. On June 20, 1958, about 10:00 o’clock A.M., attorney Red called Mrs. McLeod on the telephone. On this date she was an extremely sick woman. Attorney Red wanted to come to her apartment and talk to her about the Will. Mrs. McLeod was notified of the call, and her response was that she did not feel like doing it. But she said, “I might as well get it over with because they are not going to give me any peace.” (Emphasis added). Attorney Red went to the apartment and talked with her, and then went back to his office and prepared the Will. Attorney Red returned to the apartment about 1:00 o’clock. Miss Ruth R. Creed, a school teacher, and Mrs. Coin Douglas, a nurse, were there as witnesses. The testimony of the witnesses was to the effect that Mrs. McLeod did not have the mental capacity to know and understand exactly what she was doing at the time that she signed the Will. But the jury found that she did have mental capacity. Prior to this time, attorney Red did not know Mrs. McLeod. A strange attorney called to write a Will for a dying woman.

Mrs. McLeod made the statement at the time she signed the Will, or shortly thereafter, that the Will would have to be changed. Shortly after attorney Red left the apartment of Mrs. McLeod she made the statement that he had “loused her up with Marvin”, (the appellant). At the time she signed the Will, she was a sick woman, and as soon as attorney Red left her apartment, she had to have a shot of codeine, she vomited, and had a very bad nervous reaction. She cried all the afternoon. It was one of her worst days. She was dying of terminal cancer, and actually passed away 26 days thereafter.

On being questioned as.to the type of pain that she was having, the nurse testified as follows: “Yes, definitely. Definitely. Only God in Heaven can know what they suffer. ■ It is the worst pain that a human being can suffer.” As evidence of the great pain with which she was suffering, she was receiving heavy doses of narcotics and other sedatives. The day before she signed the purported Will, she received a number of shots of demerol, several doses of codeine, numerous doses of paregoric, and several doses of senacol. She also received doses of demerol, paregoric and codeine on June 20, 1958, prior to the time she signed the purported Will. She had lost weight to the point of being emaciated, was nauseated, vomiting, and .was- having trouble with her breathing. About twelve days after she signed the purported Will, she developed diplopia or double vision. The records of the M. D. Anderson Hospital showed that she had some dyspnea and orthopnea.

According to the evidence, Mrs. McLeod on two separate occasions, after the purported Will was signed and prior to her death, attempted to change the disposition of the property other than that as specified in the Will. Reiche prepared one of the instruments and carried it to the hospital, but she refused to let him enter the room. She signed the instrument, and it has been admitted in evidence; in that instrument she only left the Reiches an FM radio. She dictated to Mrs. Coin Douglas a request relative to the disposition of her property after her death.

There is no evidence in the record of any contributions or gifts by Mrs. McLeod to the Social Service Patient Welfare Fund of M. D. Anderson Hospital. As a matter of fact, she did not have her operation in the M. D. Anderson Hospital. Prior to her death, she became peeved at the doctor that did the operation, and also became very angry with the M. D. Anderson Hospital.

Reiche was not physically present when the Will was signed, yet the fact remains that shortly after the Will was signed he obtained possession of the .Will and removed it from Mrs. McLeod’s apartment and put it beyond her reach in a safety deposit box at the University State Bank, where the Will was found after Mrs. McLeod’s death. Reiche had a motive other than mere financial gain; he was gradually losing his eyesight.

As hereinabove stated, she had previously refused to make a Will. The Reiches would not let her have any peace. Prior to the time she signed the purported Will, she made the statement that “the Reiches are trying to get it all”; “it looks like the Reiches are trying to get it all”; and, “You can’t trust anybody.” At the time she signed the purported Will, she made the statement that the Will would have to be changed. After she signed the purported Will she made the statement that attorney Red had loused her up with Marvin.

Prior to signing the Will, Mrs. McLeod signed an orderto the Teacher Retirement System of the State of Texas designating Seldon Marvin Ely as the beneficiary to the retirement fund. Immediately prior to signing the Will, she changed the beneficiary in a life insurance policy from her deceased husband to Seldon Marvin Ely. This change of beneficiary was signed on June 12, 1958, and the change of beneficiary was actually made on June 17,1958. Reiche and attorney Red found the insurance policy, and they have kept the same. According to the evidence, they refused to deliver the policy to Mr. Ely, the appellant, and they had the same (in their possession) at the time of the trial. (The appellant had collected the insurance).

Attorney Red, as a notary public, took the self-proving acknowledgments to the Will. He filed the Will for probate. On being interrogated about it, he swore that Mrs. McLeod had hired him, and had paid him to do so. The evidence shows that he was only paid $50.00.

Mrs. Harriet Tefteller, a nurse who was put on duty on June 19, 1958, testified that Dr. Edwards called on the telephone one time and talked to Mrs. McLeod. He told her that he wanted her to get rid of the nurse. To which she replied: “You’ve been talking to the Reiches.” Then she said: “See, the Reiches are wanting the doctors to get rid of you”. This action is wholly unexplained. Mrs. Tefteller testified: “Her eyes were weak, and (she was) pale and emaciated, and vomiting every few minutes”. As to her sleep the night of June 19, 1958, Mrs. Tefteller testified: “She was restless. Just a fitful sleep. Dozed off for a few minutes and then she would either have to have her dressings changed or she would vomit or be in great pain.”

When attorney Red came to Mrs. McLeod’s apartment on June 20, 1958 about 10:00 o’clock A.M., he was permitted to see Mrs. McLeod, alone, in the room. When he returned about 1:00 o’clock, he went into the room with Mrs. McLeod, alone, where he stayed for a short period of time. Then, Miss Creed and Mrs. Douglas went into the room and witnessed the signing of the Will. Miss Creed was positive that Mrs. McLeod did not understand what she was doing at the time she made the Will. Neither did either of the nurses. She had often complained to the nurses about not having enough money to pay them all their salaries, and at the time of her death, there was money due to each of them. Her estate amounted to an excess of $28,000.00.

Mr. Ely, the appellant, was the only surviving relative of Mrs. McLeod. Their mothers were sisters. It appears that during the last illness of Mrs. McLeod’s parents, Mr. Ely and his parents were quite helpful to them. They contributed to their support.

There was some evidence in the record that Reiche was guilty of using undue influence upon Mrs. McLeod in order to get her to make the Will. The Will was an unnatural Will, they wouldn’t allow her any peace, and the Will was contrary to her expressed wishes and desires.

Under the provisions of Rule 301, Vernon’s Ann.Tex.Rules of Civil Procedure, the trial court must find that there is no evidence of probative force before he can disregard the jury finding in entering a judgment. To sustain the action of the trial court in disregarding the jury findings there must be no evidence of probative force to support the verdict. Parham v. Norwood, Tex.Civ.App., 329 S.W.2d 506, 509, W.R., N.R.E.; Iowa Mutual Insurance Company v. Redden, Tex.Civ.App., 326 S.W.2d 727, W.R., N.R.E.; Collier v. Hill & Hill, Exterminators, et al.; Tex.Civ.App., 322 S.W. 2d 329, 73 A.L.R.2d 1141, N.W.H.

To prove undue influence against a person in the execution of a Will presents quite a problem. Every case must rest on the evidence in that particular case. 42 T.J. 792, Sec. 2, p. 793, Sec. 4, p. 795, Sec. 6, p. 797, Sec. 7; 95 C.J.S. Wills § 462, p. 421, § 463, p. 434; Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Pollard v. El Paso National Bank, Tex.Civ.App., 343 S.W.2d 909; 1 McCormick and Ray, Texas Law of Evidence 101, Sec. 87, and authorities cited therein. See also, 1 McCormick and Ray, Texas Law of Evidence 659, Chapt. 12, especially Sec. 894.

The jury after hearing and considering the evidence, found that the Will was the result of undue influence exercised over Mrs. Dorothy McLeod by Edward Reiche. To support this finding, they had to rely upon circumstantial evidence. In this case, there was plenty of circumstantial evidence to prove that Reiche had persuaded Mrs. McLeod to make the Will in question. There was a confidential relationship that existed between them for many years. Reiche was an advisor of Mrs. McLeod. He took advantage of her feeble condition; he wouldn’t allow her any peace. He called attorney Red and asked him if he would write the Will. He later called Red and told him she did not want to make a Will. Then he called Red again and told him she wanted to make a Will. Reiche no doubt gave Red her name, address and phone number. Considering her great pain, physical suffering and drugged mind, he wouldn’t allow her any peace, he cajoled and insisted and repeatedly worried and harried Mrs. McLeod until he drove her to the point where she agreed to sign the Will, even though it was not what she wanted, and was not intended by her to be her last and final Will. As soon as the .Will was signed, he got possession of it and carried it to the bank and placed it beyond her reach. Mrs. McLeod later signed another instrument that she had insisted be prepared, and in that instrument she only left the appellee an FM radio. These things he did out of the presence of any other witnesses who could see and hear what he said, the things he did, and then appear in court and testify. Yet, the circumstances as hereinabove set out and proved before the jury were sufficient to prove that there was undue influence exercised over Mrs. McLeod by Reiche. In the case of Holt v. Guergin, 106 Tex. 185, 156 S.W. 581, affirmed by the Supreme Court, 106 Tex. 185, 163 S.W. 10, 50 L.R.A.,N.S., 1136, we find the following language:

“The existence of undue influence is a question of fact, and from its very nature, like all fraudulent and vicious schemes, hides its features behind masks and operates in dark and secret places and in covert ways, and proof of it must usually be by circumstantial rather than by direct testimony. Those circumstances may be the condition of the testator’s mind, his age, weakness, and infirmity, his surroundings and the circumstances attending the execution of the will, the opportunity for the exertion of such influence as would trammel or destroy the exercise of free agency and the disposition of the property, the words and acts of testator and beneficiary, the existence of confidential relations between them, and the injustice, and unreasonable and unnatural character of the will.” (Emphasis added).

In Ayala v. Maume, Tex.Civ.App., 318 S.W.2d 698, er. ref., n. r. e., the court said: “In such a case it is not enough that it is not clear that the verdict is right; but it must clearly appear that it is wrong, to induce the court to set aside the verdict.” Pollard v. El Paso National Bank, Tex.Civ. App., 343 S.W.2d 909, wr. ref., n. r. e.; Gunlock v. Greenwade, Tex.Civ.App., 280 S.W.2d 610, wr. ref., n. r. e.; Lee v. Daugherty, Tex.Civ.App., 281 S.W.2d 192, wr. ref., n. r. e.

In the case of Buchanan v. Davis, 12 S. W.2d 978, 981, the Commission of Appeals affirmed a jury verdict that undue influence was used. Bearing in mind the condition of Mrs. McLeod at the time she signed the Will, together with all things the appellee did to her, I think the following excerpt from the case is appropriate:

“It is known to us all that whatever hurts the flesh reacts somewhat upon the media of intelligence; and the idea that injury to or impairment of one part of the finely poised organism does not to some extent impair all others has repudiation in the general experience and observation of mankind. In consequence, physical condition is a circumstance entitled to consideration in the ascertainment of intellectual state.”

Mrs. Ophelia Buchanan was suffering with cancer. She signed the Will on August 3, 1917. She died August 20, 1917. The evidence in that case is not any stronger than that in this case. The judgment was permitted to stand.

In the case of Long v. Long, supra, the court had this to say:

“It is rarely possible to prove undue influence by what is generally known as direct testimony. Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances. Usually a person charging undue influence must substantiate such charges by circumstances extending over a considerable length of time. It is therefore the settled rule that undue influence can be established by what is known as circumstantial, as well as direct, evidence. [Citing cases.]
“Undue influence and mental incapacity are two distinct grounds for voiding a will. Undue influence in its essential elements has no real relation to mental incapacity. Mental incapacity implies the lack of intelligent mental power; while undue influence implies within itself the existence of a mind of sufficient mental capacity to make a will, if not hindered by the dominant or overriding influence of another in such a way as to make the instrument speak the will of the person exercising undue influence, and not that of the testator.”

The Statement of Facts contains plenty of evidence of probative force to support the jury’s verdict of undue influence. Scott v. Townsend (Tex.Sup.Ct.) 106 Tex. 322, 166 S.W. 1138; Sockwell v. Sockwell, Tex.Civ. App., 166 S.W. 1188, wr. ref.; Craycroft v. Crawford, Tex.Civ.App., 285 S.W. 275, er. ref.; Long v. Long, supra; McKay v. McKay, Tex.Civ.App., 189 S.W. 520; Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491; In Re Est. of Flora Ann Pool Olsson, Tex.Civ.App., 344 S.W.2d 171, wr. ref., n. r. e.; Campbell v. Barrera, Tex.Civ.App., 32 S.W. 724, n. w. h.; Marshall v. Campbell, Tex.Civ.App., 212 S.W. 723; Reinhardt v. Nehring et al., Tex.Civ.App., 283 S.W. 347, reversed on other grounds; Ford v. Ross, 150 S.W.2d 144, n. w. h.; Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035, er. ref.; Venner v. Layton, Tex.Civ.App., 244 S.W.2d 852, wr. ref.; Gunlock v. Greenwade, Tex.Civ.App., 280 S.W.2d 610, n. r. e. I would sustain points One and Two.

By his third point of error, appellant takes the position that the trial court erred in admitting certain testimony of Dr. Robert A. Edwards. The questions asked were leading and suggestive. They should not have been admitted in evidence. Wilkinson v. Wilkinson, Tex.Civ.App., 322 S.W.2d 662, err. dism. I will not go into detail and discuss the questions and answers. They were as to the mental condition of Mrs. McLeod prior to her death. The two nurses and Miss Creed both testified that she was not mentally competent to know what she was doing when she executed the Will. I can see where the testimony of Dr. Edwards probably caused the jury to find that she was of mental competence. I would sustain point Three.

The evidence in this case is stronger than in Long v. Long, supra. Irrespective of the statements made by Mrs. McLeod, the following, I believe, to be sufficient evidence to sustain the findings of the jury, that the Will was made as the result of undue influence. Reiche called attorney Red and asked him if he would write the Will. Later, Reiche called Red and told him that she did not want to make a Will. Then, Reiche called Red and told him that she did want to make a Will.

Prior to making the Will there is evidence that Mrs. McLeod had already made a Will in favor of Mr. Ely. There is no evidence as to what became of that Will. There is evidence that Mrs. McLeod made Mr. Ely the beneficiary to her Teacher-Retirement Fund. There is evidence that Mrs. McLeod changed the beneficiary of an insurance policy immediately before her death. (They still have the insurance policy) . There is evidence that they would not grant her any peace until she made the .Will. There is evidence that Reiche immediately secured possession of the Will and carried it to a bank deposit box. There is evidence that Reiche wrote another instrument that Mrs. McLeod actually signed in which she only left the Reiches an FM radio.

There is evidence that Mrs. McLeod prior to making the Will listed Mrs. Reiche as the person to be notified in case of an emergency. After the Will was signed and she re-entered the hospital she did not list Mrs. Reiche as the person to be notified. Reiche and Mrs. McLeod were at one time extremely close friends, as evidenced by the Will and the letter that was written by Red on the day that she signed the purported Will. (Where did Reiche get the key to Mrs. McLeod’s lock-box where he put the will ?)

There is evidence that attorney Red took the acknowledgment to the purported Will, and then he filed the Will for probate. He testified that Mrs. McLeod had hired him and had paid him. The evidence only shows that she had paid him $50.00. There is evidence that Mrs. McLeod became angry at the M. D. Anderson Hospital prior to her death. There is evidence that immediately after she signed the Will she had to have a shot of codeine. She vomited; and that evening she had one of the worst evenings imaginable. Her mind was drugged by taking demerol, paregoric, senacol, and codeine.

There is evidence that she refused Reiche permission to come into her room after the purported Will was signed. All of these facts, irrespective of the statements made by Mrs. McLeod, are sufficient to prove that they used undue influence upon a dying woman; a woman who was dying of one of the most horrible diseases imaginable. As I see it, Reiche and the M. D. Anderson Hospital are taking property that legally, and as a matter of MORAL DECENCY, belongs to Marvin Ely.

For the errors hereinabove pointed out, I would reverse the judgment of the trial court and render judgment denying the Will to probate.


author: DAVIS, Justice.

text:
    Tom Vick TIRADO, Appellant, v. Merle Lewis TIRADO, Appellee.
    No. 7362.
    Court of Civil Appeals of Texas. Texarkana.
    April 24, 1962.
    Rehearing Denied May 15, 1962.

      Smith & Lehmann, Percy Foreman, Houston, for appellant.
    .Vinson Elkins, Weems & Searls, Edward D. Coulson, Houston, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, Merle Lewis Tirado, sued the appellant-defendant, Tom Vick Tirado, for a divorce, for partition of their community property, and asked that their separate properties be set aside to each of them. The appellant filed a cross-action but later decided not to contest the divorce. The trial court referred the issues as to the extent and nature of their separate property as well as the community property to a Master in Chancery, F. T. Baldwin, hereinafter referred to as Master. The Master heard evidence as to the identities of the properties of the parties prior to their marriage on April 5, 1956, and after the marriage to and including December 31, 1959. Later, the Master heard evidence to bring the status of the properties forward to August, 1960. Prior to her marriage to the appellant, the appellee had been the wife of Dale W. Moore who died on November 1, 1954. Under the last Will and Testament of Dale W. Moore, the appellee was named independent executrix, without bond, and she was the principal and residuary beneficiary of the large estate.

As above stated the appellee married the appellant on April 5, 1956. They separated on July 21, 1959.

The record in the case is voluminous. In view of the position taken by the appellant and appellee, who both, in fact, perfected an appeal, we will have to look to the books and records of the estate of Dale W. Moore, deceased, former husband of the appellee, to the expert testimony of Miss Sarah Ann Lewellen, a certified public accountant, and to other oral testimony, to determine the issues presented. A large portion of the estates involved were actually the separate property of the appellant and appellee at the time they married. Monies used to acquire assets during the marriage were traced in the evidence offered before the Master, and in the trial court. At the trial, additional testimony was produced in behalf of the appellee so as to bring forward to the date of divorce, showing the status and identity of both separate and community property. The Master’s report, the court order with respect to the Master’s report, the transcript of the testimony with numerous exhibits, were placed in evidence.

A final judgment was entered on February 14, 1961, granting appellee a divorce and awarding certain properties to each of them as their separate property, and dividing the other property of the parties as community property. Both the appellant and appellee excepted to the judgment of the trial court as to the division of the property and each perfected an appeal.

The appellant brings forward seven “propositions” which he terms as “points of error”. Nowhere in his brief does he refer to any action of the trial court as being error, except in his conclusion and prayer.

Appellant’s brief does not conform to Rule 418 Vernon’s Ann. T.R.C.P. In view of the fact that he can amend the brief under Rule 431, we have decided to consider the “propositions” as “points of error.” Under Rule 418, on page 228 of the 3rd volume of Vernon’s Annotated Rules of Civil Procedure by Franki, under the heading “Propositions and Points” are instructions on the questions of “propositions” and “points”. All attorneys should study Rule 418 and the instructions thereunder, in connection with the filing of their briefs.

The appellee brings forward six counterpoints of error and three points of error and one proposition. The six counter-points of error challenge the seven points of error brought forward by the appellant. By her points of error and proposition, she challenges the judgment of the trial court as to awarding the appellant one-half (½) interest in and to the 660 shares of stock in the 885 Park Avenue Corporation, the lease, improvements and the furnishings contained in the apartment in New York.

Appellant takes the position that the sale of the oil and gas from the separate estate of the appellee that is situated in Louisiana became community property. Appellant admits that at the date of the marriage that the appellee owned extensive oil and gas interests lying wholly within the State of Louisiana. The property is actually a working interest in and to certain oil and gas leases situated in Louisiana. It was the separate property of the appellee on the date of marriage, and which she owned and held at the date of the judgment. During the marriage, the production of the oil and gas was sold to various companies and the proceeds from the sale thereof were deposited in the First City National Bank at Houston, Texas, in the name of Dale W. Moore, Production Account. From the date of the marriage to the date of divorce, there was produced and sold from the Louisiana leases large quantities of oil and gas. During said marriage, there was produced oil and gas from lands in Texas. During the marriage relation, monies were withdrawn from the production account for living expenses, and to pay a salary to the appellant of $1750.00 per month. There was also withdrawn from the production account expenses to pay for appellee’s portion of the production cost of the oil and gas, insurance, etc. On the date of the judgment, there was a small amount of money in the production account. The balance was accounted for.

The appellant takes the position that he is entitled to one-half (½) of all the production on the oil and gas in both Louisiana and Texas because of the commingling of the funds from the sale of the oil and gas in Louisiana with that which was produced in Texas. Appellee takes the position that the property was her separate property on the date of the'marriage, that the sale of the oil and gas was actually a sale of movable personal property and the cash received by a married woman domiciled in Texas and deposited in a Texas bank from oil and gas leases situated in Louisiana was and is her separate property. Oil and gas in place in Louisiana is a part of the realty and is so classified by Title 9, Section 1105 of the Louisiana Statutes. But, oil and gas, both by the law of Louisiana and Texas, become personal property upon its production and severance. Art. 483, LSA-Civ.Code; De Moss v. Sample, et al., 143 La. 243, 78 So. 482; Art. 4614, Tex.Civ.Statutes; Norris v. Vaughn, 152 Tex. 491, 260 S.W.2d 676, 678; Cone v. Cone, Tex.Civ.App., 266 S.W.2d 480, err. dism.

Oil and gas that has been produced from the realty becomes movable property and in this case, the separate property of the appellee, under the laws of Texas. The appellant and the appellee were married in Texas, lived and resided in Texas during their entire married life, the contract to marry was entered into in Texas, and there were no agreements, anti or postnuptial, shown by the record, as to what was to become of the separate property of the ap-pellee. The income from the appellee’s properties for the sale of the oil and gas produced and severed, constituting her personal property, a part of her separate estate, was sold and the purchaser became indebted to her and paid their debts to her in Houston, Harris County, Texas; not in Louisiana. State ex rel. Muslow v. Louisiana Oil Refining Corporation, La.App., 176 So. 686 (Louisiana Repeals 1937 Certiorari denied 1937) Article 465, LSA-Civ.Code; Stephens v. Stephens, Tex.Civ.App., 292 S. W. 290, err. dism.; Chaffin v. Hall, Tex. Civ.App., 210 S.W.2d 191, err. ref., n. r. e.; Choice v. Texas Co., U.S.D.C., 2 F.Supp. 160.

Under the evidence in the case, the oil and gas, after it was produced from the realty, was movable personal property. That being true, the Conflict of Law rules apply and determination of its status as separate property, or community property, is made by the law of the state of the domicile of the parties. The Statutes and Codes of Louisiana which appellant seeks to have enforced have no extra-territorial effect. The Statutes and the Codes are contrary to the laws of Texas, and the Texas courts will refuse to go against or contrary to such statutes or codes and will enforce its own law as a matter of public policy. The statutes and codes, and judicial decisions of Louisiana, upon which the appellant relies are contrary to the law and public policy of Texas. Therefore, the personal movable property and all income, profits, fruits and benefits arising from the. Louisiana property of appellee, together with all Louisiana property which the law constitutes movable, will fall as separate or community as the laws of Texas dictate.

The general law applicable in Texas on Conflicts of Law is cited in 12 Tex.Juris., 2d, Secs. 1 to 12, pp. 303 to 311. See the authorities therein cited. As the commingling of goods, see 12 Tex.Juris. 2d, Secs. 1, 2 and 4, pp. 315 and 317. See authorities therein cited.

Speer’s Third Edition on Law of Marital Rights in Texas on Conflict of Laws, agrees with the above holdings. See Sections 29, 58, 75 and 83. From the beginning of the history of our Texas courts down to the present time, there are cases that show how deeply imbedded is the public policy of this State as to the rule of a wife’s separate property from which the Texas courts have never deviated. Edrington v. Mayfield, 5 Texas 363; State of Texas v. Barrow, 14 Tex. 179; Castro v. Illies, 22 Tex. 479; Hill v. Townsend, 24 Tex. 575; Franklin v. Piper, 5 Tex.Civ.App. 253, 23 S.W. 942; Ward v. Cameron, 97 Tex. 466, 80 S.W. 69; Cox v. McClave, Tex. Civ.App., 22 S.W.2d 961, err. dism.; Grange v. Kayser, Tex.Civ.App., 80 S.W. 2d 1007, N.W.H.; Bell v. Bell, Tex.Civ. App., 180 S.W.2d 466, err. ref., w. o. m.

Most courts and writers agree that the law of the domicile should control. Stumberg 2d Edition, on Conflict of Laws, 312; Restatement Sec. 289; 11 Tex.Law Review 53. There is eminent authority for the proposition that the law of the domicile controls as to property rights in movables owned at the time of the marriage, during the marriage and at the time of the judgment of divorce. Stumberg 2nd Edition on Conflict of Laws, 313. As hereinabove stated, the contract of marriage was created in Texas. The rights, or better the legal relation arising out of its creation, depend upon the laws of Texas and as vested rights should be given effect. Stumberg 2nd Edition on Conflict of Laws, 226.

One of the various articles of the Louisiana Civil Code upon which the appellant relies has to do with property of people who contract a marriage m the State of Louisiana. The cases bearing on the subject will show that the Louisiana courts have consistently treated Article 2400 of the LSA-Civil Code as being the premise for the existence or non-existence of a community of equates and gains, and have treated Article 2402 LSA-Civil Code as setting out the basis by which property comes into the community. Article 2399 of the LSA-Civil Code begins with this phrase: “Every marriage contracted in this State, * * * For decisions of the Courts of Louisiana see The Succession of Watkins, 156 La. 1000, 101 So. 395; Kittredge v. Grau, 103 So. 723; Smith v. Gloyd, 182 La. 770, 162 So. 617, and Succession of Robinson, 23 La.Ann. 174.

Appellant’s contention that the operation of the oil and gas interest in Texas and Louisiana was the operation of a business is not only contrary to the evidence, the findings of the Master, and the trial court, but, also, is immaterial to the determination to the status as separate or community for monies received for oil and gas from appellee’s separate property. Actually, the appellee did not own the oil and gas lease from which the oil and gas was produced. She owned a working interest therein. Other properties in Texas produced oil and gas and she received a portion thereof. Dale W. Moore, during his lifetime had acquired the property. By his Will, it was transferred to the appellee. The Master found from the evidence that the appellant and the ap-pellee were non-operators of the working interest. That no labor, effort or talent was required of them other than to deposit the receipts from the oil and gas and pay the expenses in connection with their production. The findings were adopted by the trial court. The evidence is sufficient to support the actions of the Master and of the trial court. Article 4614 Tex.Rev. Civ.Stat. Appellee had the right of the sole management, control and disposition, both real and personal. Snyder-Bell Grocery Co. v. Hamilton, Tex.Civ.App., 276 S.W. 752, n. w. h.; Coggin v. Coggin, Tex. Civ.App., 204 S.W.2d 47, n. w. h.; Norris v. Vaughn, supra.

The finding of the Master, adopted hy the trial court, that the production account did not at any time become so commingled with community funds as to make •applicable the presumption contained in Art. 4619, T.R.C.S., that the funds on deposit were not community funds is supported by the evidence. The appellee sustained the burden of establishing, by satisfactory evidence, that the assets acquired after marriage with funds from the production account were the separate property of the appellee. This having been done, it then became the duty of the appellant to produce some evidence to show otherwise. This, the appellant failed to do. Edsall v. Edsall, Tex.Civ.App., 240 S.W.2d 424, n. w. h.; Blumer v. Kallison, Tex. Civ. App., 297 S.W.2d 898, err. ref., n. r. e.; Barrington v. Barrington, Tex.Civ.App., 290 S.W.2d 297, n. w. h. Other cases that illustrate the doctrine that the inception to the right to title governs the status of the property as separate or community are as follows: Barbet v. Langlois, 5 La.Ann. 212, 23 La.Rep. 183; Welder, et al., v. Lambert, et al., 91 Tex. 510, 44 S.W. 281; MacRae v. MacRae, Tex.Civ.App., 144 S. W.2d 320, err. ref.; Moore v. Moore, Tex. Civ.App., 192 S.W.2d 929, n. w. h.; Fuhrman v. Fuhrman, Tex.Civ.App., 302 S.W. 2d 205.

Prior to the marriage of appellant and appellee, the appellee owned some stock in the First City National Bank of Houston. During the marriage, the bank made a stock split. A stock dividend was derived from the shares of stock that the appellee actually owned. The appellee proved by the evidence that the shares of :stock were her separate property and the stock dividends arrived at by the stock split did not in any manner increase the value of the stocks that she owned prior to the split. The Master found that the capital stock received after marriage as a result of stock splits or stock dividends, based upon the number of shares owned prior to marriage, as well as stock received in exchange for capital stock received prior to marriage was the separate property of the appellee. He further found, as a matter of law, that the additional shares became the appellee’s separate property. The trial court adopted these findings of fact.

The appellant attempts to make a distinction between stock splits and stock dividends which is meaningless under Texas community property law. Appellant also attempts to inject an issue of constitutional law into the case where none actually exists. When the stock dividends were received, based on her separate stock, they merely presented a change or mutation in the evidence which appellee held of the same proportional ownership in the corporation. Thus no question of constitutional law is here involved. Fuhrman v. Fuhrman, Tex.Civ.App., 302 S.W.2d 205, err. dism.; Johnson v. The First National Bank of Fort Worth (Tex.Civ.App.), 306 S.W.2d 927, n. w. h; Hilley v. Hilley, Tex., 342 S.W.2d 565.

The lots about which the appellant complains in his 7th point of error are original easements by necessity of ingress and egress from other of the ship channel tracts. At the time of the marriage, these tracts were abandoned lands. The land over which the easement was situated was owned one-half by the owners of the tracts abutting on the north and one-half by those by the owners abutting on the south. At the time of the marriage, appellee only owned an 80% undivided interest in most of these ship channel properties and was in the process of negotiating for the remaining small tracts. The tracts of this property purchased by her after marriage were conveyed to appellee by deeds and recited that payment was made from her separate funds and that the property was conveyed to her as her separate property. When appellee had acquired title to all the surrounding properties, this brought about an extinguishment of the servitude created by the easements for ingress and egress and the merger of the easements into the estate held by the appellee. 21 Tex.Jur.2d, Sec. 51; Howell v. Estes, 71 Tex. 690, 12 S.W. 62.

The points of error raised by the appellant are overruled.

Next, we will discuss the points of error raised by the appellee.

The Master made findings of fact pertaining to the stock in the 885 Park Avenue Corporation and improvements and furnishings contained in the New York apartment. The Master found that ap-pellee purchased 660 shares of stock of 885 Park Avenue Corporation; that the appellant requested that in payment therefor checks be drawn on the production account; that the improvements and furnishings were all paid for out of the production account, the separate property of the appellee. The Master further found that after the purchase of the property and the status of the property had become fixed as appellee’s separate property, then a contribution of $10,000.00 from the community estate for improvements or furnishings was made. The Master further found, from the evidence introduced, that it was the intention and understanding of both the appellant and the appellee that the stocks purchased, the lease, the improvements and furnishings, were the separate property of the appellee.

The evidence before the Master and before the trial court was sufficient to support the findings of fact made by the Master. There was testimony of M. D. Greer which reflects that at the time appellee was buying the 660 shares of stock, she stated that she was purchasing this stock as her separate property. That she evidenced the intention at the time of its acquisition that this stock would be appel-lee’s separate property is confirmed by Mr. Greer’s letter of September 19, 1956.

By the testimony by Miss Lewellen, and by appellee’s checks, it was established beyond all doubt that all of the money that was paid for the stock was paid by checks drawn on the production account of the appellee and was her separate property. The stock was purchased by appellee’s separate funds, and she intended it to be her separate property at the time of purchase. Its status as appellee’s separate property was established.

Concerning the improvements and furnishings located in the New York penthouse apartment, appellee carefully traced by the testimony of Miss Lewellen, the testimony of Mr. Greer, the admissions of appellant, and appellee’s exhibits before the Master, shows it to be appellee’s separate property.

Appellant made no effort to refute or dispute the amount of money used to acquire the shares of stock in the New York apartment, improvements and furniture. His sole claim that these properties were community is based upon his contention that the production account funds (were community funds. We cannot agree with this contention.

The appellee owned an excessively large estate at the time of her marriage. The appellant owned a considerable amount of separate property. At the time of the divorce, he had some four bank accounts and quite a few shares of stock. We are not impressed with his attitude and contention in the trial of the case. The appellee had spent large sums of money during their marriage for the support of the community estate, and had paid the appellant a salary of $1750.00 per month for doing nothing. There was nothing said about what he used the $1750.00 per month for, nor where it went. From the evidence in the case, the appellant received by far more than his just and fair share of the property of the parties. The judgment of the trial court was in error in awarding to the appellant one-half interest in the shares of stock and the furniture and fixtures in the New York apartment.

The judgment of the trial court in so far as any contention of any error is made by the appellant, is affirmed.

We hold, from the evidence and admissions in the case, that the 660 shares of stock in the 885 Park Avenue Corporation in New York, and the furniture and fixtures in the apartment should be the separate property of the appellee; and, that the appellant should be entitled to a judgment for Y2 of the $10,000.00 that was invested out of the community funds in the furniture and fixtures that were placed in the New York apartment. That part of the judgment is hereby reversed and remanded to the trial court for further proceedings.

No appeal was taken from the judgment of divorce; the divorce decree is not disturbed.

Affirmed in part, reversed and remanded in part.

Appellant and appellee will have 15 days from the date of this judgment within which to file a motion for rehearing.