author: FANNING, Justice.

text:
    W. H. SPARKS et al., Trustees for the General American Oil Company of Texas Retirement Trust, Appellants, v. W. Thomas BOLTON and Texas and New Orleans Railroad Company, Appellees.
    No. 7321.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1962.
    Rebearing Denied March 20, 1962.

      George S. Terry, Jerry N. Jordan, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellants.

      L. P. Bickel, Jackson, Walker, Winstead, Cantwell & Miller, H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Jerome Chamberlain, Chamberlain & Rachael, Dallas, for appellees.
   FANNING, Justice.

Appellants sought a permanent injunction against appellees from erecting an automobile service station on railroad right-of-way in the City of Dallas. The trial court sustained appellees’ plea in abatement and dismissed appellants’ suit asking to enjoin appellees from platting and subdividing a portion of the railroad’s right-of-way and constructing an automobile service station thereon, which was reversed by the Dallas Court of Civil Appeals, 335 S.W.2d 780, and remanded for a trial on the merits. In a trial on the merits on the question of permanent injunction before the court without a jury, the trial court denied the permanent injunction. Appellants appealed to the Dallas Court of Civil Appeals. By an order of the Supreme Court of Texas on equalization of the dockets of the Courts of Civil Appeals the appeal was transferred to this court.

The judgment of the trial court is reversed and judgment is rendered for appellants granting the injunction sought by them.

Appellants as trustees are owners of an interest in land abutting and adjacent to the railroad right-of-way. Appellee Bolton obtained a lease from the Railroad on a portion of the right-of-way at a corner where the right-of-way and Lovers Lane intersect. His intention is to build an automobile service station at the location. To make room for the service station the single railroad track, which now runs down the middle of the 100-feet wide right-of-way, will be moved 35 feet to the east, so that Bolton will have a lot approximately 80 x 200 feet on which to build the station.

On August 8, 1958, appellees filed with the City Plan Commission an application for approval of the subdivision and platting o£ the one lot. The application was refused by the City Plan Commission.

Thereupon the City Council on September 2, 1958, passed Ordinance No. 7792 providing for temporary zoning of railroad rights-of-way not abandoned for railroad use; providing for temporary platting rules; and providing for the issuance of building permits.

On October 8, 1958, Bolton re-submitted his application for subdivision and platting of the one lot and for a building permit. The City Plan Commission again refused to approve the platting and subdivision, but under the terms of Ordinance No. 7792 had to refer its decision to the City Council for final action.

On December 1, 1958, the City Council rejected the recommendation of the City Plan Commission and approved Bolton's application.

On June 22, 1959, the City Council passed a resolution ordering the City Manager to direct the appropriate department to issue the building permit upon certain conditions. In this resolution the City Council took cognizance of the pendency of this suit and expressly' reserved to the parties such outcome of the suit. The Council further imposed the condition that if the court in. this suit should hold void the action of the Council on December 1, 1958, then the property in question would be subject to a new ordinance which the Council proposed to pass, which ordinance would require a public hearing and notice to nearby property owners before a service station would be permitted at the site in question.

The Dallas Court of Civil Appeals ⅛ its opinion in 335 S.W.2d 780 held that ordinance 7792 was void. We quote from said opinion in part as follows:

“If the factual allegations in appellants’ sworn petition are true (and they are not denied in Bolton’s unsworn plea in abatement) the ordinances and acts. of the City Council and the Acts of the Building Inspector in this case are void. Ordinance No. 7792 passed by the City Council on August 8, 1958, is void if byits terms the City Council attempted to take over the platting and subdividing responsibilities of the City Plan Commission. Art. 974a, V.A.C.S.; Hollis v. Parkland Corporation, 120 Tex. 531, 40 S.W.2d 53. * * *
“Appellee says that by issuing the permit the Building Inspector in effect found that appellees complied with the Building Code and Zoning Ordinance of the City of Dallas and that the proposed use of the property is in compliance with said ordinances. We cannot agree to this contention for two reasons : (1) if the permit was issued pursuant to a void ordinance and orders, the purported implied findings of the Building Inspector have no significance whatever; and (2) in the light of the resolution of the City Council of June 22, 1959, the Building Inspector did not ¡make any findings at all — he merely issued the permit because the City Council and City Manager sent down orders for him to do so.”

Appellants by their first point contend that the trial court erred in finding as a fact that Article 125-1, Chapter 125 of the Code of Civil and Criminal Ordinances of the City of Dallas, Texas, was enacted for the purpose of preventing trespasses and nuisances on the railroad rights-of-way, and was not designed nor intended to prevent the property in question from being used for service station purposes because there is no evidence to support said finding. By point 4 appellants contend that the trial court erred in concluding as a matter of law that the above referred to ordinance does not prevent the property in question from being used for filling station purposes. By point 5 appellants contend that the trial court erred in concluding as a matter of law that the above referred to ordinance is not applicable to prohibit the use of the property in question. By point 6 appellants contend that the trial court erred in failing to grant an injunction to prohibit the construction of a service station on the railroad right-of-way, which station would sell goods, wares and merchandise in violation of the express terms of the above referred to ordinance.

The above referred to ordinance was adopted by the City of Dallas in 1918 as Ordinance No. 287. In 1929 the Comprehensive Zoning Ordinance of the City of Dallas was enacted, and this ordinance did not have any provision for repealing Ordinance 287. In 1941 the Comprehensive Zoning Ordinance was included in the 1941 Code of Civil and Criminal Ordinances of the City of Dallas as was said Ordinance 287 which became Chapter 125 of the 1941 Code. Said ordinance is found below.

Plaintiffs-appellants plead that the sale of any merchandise of any kind or character (which would include gasoline, tires and automobile accessories) was unlawful and would constitute a violation of the above referred to ordinance.

The above referred to ordinance was in full force and effect and was recognized by the trial court as being valid and in existence. However, the trial court found and concluded to the effect that it did not apply to a service station built on railroad rights-of-way. The trial court apparently based its findings and conclusions on the emergency clause (found below) to the original ordinance 287, and upon the trial court’s further finding and conclusion that plaintiffs-appellees would sustain no damages by reason of the erection of the filling station, and since the ordinance in question was a penal ordinance plaintiffs-appellees would not be entitled to the injunction sought.

As above stated, the trial court found that the ordinance in question was designed to prevent nuisances and trespasses. Undoubtedly the ordinance does this but it also does more.

The first part of the ordinance in effect says that all sales of merchandise on railroad lands are unlawful. The exception proviso says in effect — except in passenger depots under a lease from the railroad.

The operation of an automobile service station on railroad right-of-way is not a railroad use of the land. Gulf Refining Company v. Dishroon, Tex.Civ.App., 13 S.W.2d 230.

The above referred ordinance is not ambiguous. It is plain and intelligible on its face, and we have no right to add words to it or take them from it. Mills v. Brown, Tex., 159 Tex. 110, 316 S.W.2d 720. We therefore hold that the erection of an automobile service station on railroad right-of-way in the City of Dallas would be in violation of said ordinance above referred to.

There is no evidence of probative force in the record to sustain the trial court’s fact finding complained of by appellants in their first point. Furthermore, the interpretation of the applicability, of the ordinance in question is one of law rather than one of fact, and as we have heretofore held, the ordinance is unambiguous and the erection of an automobile service station on railroad right-of-way in the City of Dallas would be in violation of said ordinance. Appellants’ 1st, 4th and 5th points are sustained.

Going forward further we are next confronted with the situation that the ordinance in question is a penal ordinance. The fact that the ordinance is a penal ordinance does not prevent the remedy of injunction from being applied where plaintiffs-appellants would be specially damaged by such violations of the law in a way that the public would not. In this connection see Woods v. Kiersky, Tex.Com.App., 14 S.W.2d 825, and Missouri-Kansas & Texas Ry. Co. v. Neuhoff Bros., Tex.Civ.App., 297 S.W.2d 316 wr. ref., N.R.E.

By points 28 and 29 appellants contend that the trial court erred in finding that the plaintiffs would not suffer damage to their property which was located within 20 feet of the site in question if the service station were built on said site because said finding has “no evidence” to support it, and because such finding was “contrary to the great weight and overwhelming preponderance of the evidence.”

The trial court heard testimony relative to damages from the witnesses Miller and Sharp. Miller, tendered as a witness by appellants, was a well-qualified land appraiser with much experience in his field, and properly qualified to testify; he made an appraisal to determine whether or not there would he any damage to the trust’s lands abutting the railroad right-of-way if the service station was built on that right-of-way, rather than used as railroad only and he concluded that there would be a $47,000.00 difference in the values (and adverse to the trust’s lands).

Sharp, tendered as a witness by appel-lees, was not an expert witness, was not qualified as one, and no attempt was made to qualify him as an expert witness. All of his testimony with reference to damages was made over pertinent objections and should have been excluded. See 17 Tex. Jur.2d, p. 298. Sharp’s testimony can not be considered as any evidence of probative force to support the trial court’s finding that there were no damages to appellants.

The only evidence of probative force remaining in the record is the evidence of the qualified expert Miller who testified as to $47,000.00 damages. As we view the record his testimony was clear and cogent, unim-peached and uncontradicted and free from suspicion.

The diminution in market value of real estate is the proper measure of damage where permanent injury results to the land. City of Texarkana v. Rhyne, 126 Tex. 77, 86 S.W.2d 215.

We are of the opinion that the only evidence of probative force in the record is conclusive that appellants suffered damages and we sustain appellants’ 28th point. In any event such finding of “no damages” was so clearly against the great weight and ■overwhelming preponderance of the evidence as to be manifestly wrong and clearly unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Appellants’ 29th point is sustained.

Appellants’ 6th point is also sustained.

By point 7 appellants contend that the trial court erred in finding as a fact that the property in question has been platted as a building lot under the provisions of Article 974a, Vernon’s Ann.Civ.St., because such a finding is a mixed finding of fact and conclusion of law and should have been stricken as a finding of fact. We think appellants’ 7th point is well taken and sustain same.

By point 8 appellants contend that the trial court erred in finding as a fact that the property in question had been platted as a building lot under the provisions of Article 974a, V.A.C.S., because there is no evidence to sustain same. By point 11 appellants contend that the trial court erred in concluding as a matter of law that the action of the City Council of the City of Dallas, Texas, on December 1, 1958, was not void; appellants in this respect contending that the Council’s action was concerned with the approval of a plat, and that the Council had no authority over platting matters, and that such action was void.

The area in question had never been platted as a building lot under the provisions of Article 974a for the reason that the City Council of Dallas, Texas, took control of the platting under the guise of the invalid ordinance No. 7792 and approved the plat and deprived the City Plan Commission of Dallas, Texas of any final authority in said case, and any platting that was done was under the invalid ordinance No. 7792 and not under Art. 974a, V.A.C.S.

The Dallas Court of Civil Appeals in its opinion heretofore referred to (335 S.W.2d 780) with reference to the phase of this case then before it held that ordinance 7792 was void if by its terms the City Council attempted to take over the platting and subdividing responsibilities of the City Planning Commission. The trial court also found that ordinance 7792 was void. The Dallas Court of Civil Appeals also stated in said opinion above referred to that if the building permit was issued pursuant to a void ordinance and orders that the purported findings of the Building Inspector would have no significance whatsoever, and that in light of the resolution of the City Council of June 22, 1959, the Building Inspector did not make any findings at all hut merely issued the permit because the City Council and City Manager sent down orders for him to do so.

The City Council on December 1, 1958, when it approved 'the plat submitted, attached certain conditions to it and in fact directed that certain details be worked out with the City Plan Engineer. The plat was not one approved by the City Planning Commission, but was one taken out of the hands of the City Planning Commission by the City Council by reason of invalid ordinance No. 7792. Appellants’ points 8 and 11 are sustained. Since the property in question was not validly platted as a building site under Article 974a, V.A.C.S., no service station may now be erected thereon and the •construction of such service station should be enjoined.

By point 12 appellants contend that the -trial court erred in finding as a fact that the property in question was zoned C-l •commercial under the Comprehensive Zoning Ordinance of the City of Dallas because such finding has no evidence to support it. By point 15 appellants contend that the trial court erred in finding as a fact that the construction of the filling station was a use of land authorized under the ordinances of the City of Dallas, Texas, because there was no evidence to support it, and by point 18 appellants contend that the trial court erred in the fact finding referred to in point 15 because same was a conclusion of law rather than of fact and should be stricken as a finding of fact. By points 19, 20 and 21 appellants attack the conclusion of law of the trial court that the property in question was zoned C-l commercial under the zoning ordinances of the City of Dallas because (1) railroad rights-of-way were not covered by the original comprehensive zoning ordinance of the City of Dallas, Texas (2) because the shifting of railroad tracks on railroad rights-of-way created new areas for proposed building sites and created conditions which called for the independent exercise of the City’s powers to meet new conditions, and because (3) among other things, the construction by the City Council of Dallas, Texas, of the Comprehensive Zoning Ordinance to the effect that said ordinance did not apply to railroad rights-of-way, is an interpretation binding upon the court. By points 22, 23, 24 and 25, appellants attack the finding of fact and conclusion of law of the trial court that ordinance No. 8143 of the City of Dallas was not a valid ordinance, and that the trial court erred in refusing to admit said ordinance in evidence.

Said ordinance No. 8143, among other things, provides for the temporary or emergency zoning of railroad rights-of-way. On June 22, 1959, the City Council passed on first reading an ordinance dealing with this subject; an attorney of record of ap-pellee Railroad Company appeared in opposition to such ordinance and a public hearing was called for July 6, 1959; on July 6, 1959, a public hearing was held on the proposed ordinance concerning the same matter, and appellee Railroad Company’s attorney of record also again appeared in opposition and a new ordinance dealing with essentially the same matter was submitted on said date and substituted for the previous ordinance passed on the first reading on June 22, 1959. On July 20, 1959, there was another hearing before the City Council, wherein appellee Railroad Company’s attorney of record also appeared in opposition. After hearing and discussion said ordinance 8143 was passed and enacted by the City Council, with the ordinance bearing an emergency clause. The ordinance is too lengthy to quote in full here, but may be found in the record. The caption to ordinance No. 8143 is quoted below.

After carefully examining the entire record in this case it is our view that under the basic comprehensive zoning ordinances of the City of Dallas, Texas, it was not contemplated that railroad rights-of-way would be utilized for any purposes other than railroad purposes only. See Gulf C. and S. F. Ry. Co. v. White, Tex.Civ.App., 281 S.W.2d 441.

Ordinance 8143 undoubtedly had for its purpose the setting up of a means or system whereby railroad rights-of-way could be utilized for non-railroad purposes and was clearly enacted as a temporary or emergency zoning ordinance. We hold it is valid as a temporary or emergency zoning ordinance. In this connection see City of Dallas v. Meserole, Tex.Civ.App., 155 S.W.2d 1019, wr. ref., w. m.

Sec. 3 of Ordinance 8143 provides in essence that where the shifting of facilities in a right-of-way is undertaken for the purpose of creating a building site, and the right-of-way is contiguous to or abuts another street or right-of-way across which there is a more restricted zoning that the zoning adjacent to the right-of-way so altered or abandoned, the building site would have a restricted zoning classification of the more restricted zoning classification of land across the said easement or right-of-way. Ordinance 8143 as applied to the fact situation at bar would give a temporary zoning classification of R-7.5, and an automobile service station is not an authorized construction to be made under an R-7.5 classification under the zoning ordinances of the City of Dallas, Texas.

Appellants’ 12th and 15th points are sustained. Appellants’ points 18 through 25 inch, are also sustained.

The judgment of the trial court is reversed and judgment is rendered that the injunction sought by appellants be issued.

Reversed and rendered.

      . “Art. 125-1. (1863) Sales on railroad grounds prohibited, exception; penalty.—
      It shall be unlawful for any person, firm or corporation or association of persons, pursuing the business or occupation of selling fruits, melons or other commodities or merchandise of any kind or character, to use or occupy for the purpose of such business or occupation any part or portion of any railroad depot, depot grounds, yard, right or way, side track or spur . track of any railroad company within the corporate limits of the city of Dallas; provided, however, that this chapter shall not apply to persons having or holding by léase or contract any concession, right or privilege to occupy and use any certain part or portion of any passenger railway depot in said city for the purpose of conducting a business therein and of the vending of fruits, melons or other merchandise or commodities. Any person, firm or corporation or association of persons violating any of the terms or provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction in the corporate court, shall be fined not more than one hundred dollars, and each day’s violation thereof shall constitute a separate and distinct offense. (Ord. 287, Bk. 20, p. 279).”

      . “Section 4. The fact that there now exists no adequate ordinance prohibiting such nuisances and trespasses creates an urgency and emergency for the immediate preservation of the public peace, health and safety requiring that this ordinance take effect at once, and it is accordingly so ordained that this ordinance shall take effect from and after its passage, approval and publication as in the Chapter in such cases made and provided.”

      . “An Ordinance providing for temporary or emergency zoning of private utility, street railway, interurban railway and railroad right of ways abandoned, in whole or in part, or building sites created by the shifting of utility installations, street railway tracks, interurban tracks and railroad tracks within such right of ways within the City limits of Dallas as they now exist or as the same may hereafter he enlarged; providing for temporary platting rules and regulations which shall be in effect during the interim period until permanent platting and zoning regulations shall be promulgated as provided by the statutes; providing for a method of procedure for the issuance of building permits ; providing for the character of permit that may be issued; providing for a. savings clause; providing for the repeal of Ordinance No. 7792 enacted by the-City Council on September 29, 1958; pro-' viding for a penalty; and declaring am emergency.”


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    Evelyn Julia ATWOOD et al., Appellants, v. E. G. RODMAN et al., Appellees. Mary A. ALLISON et al., Appellants, v. E. G. RODMAN et al., Appellees. Kathaleen BRAWLEY et al., Appellants, v. E. G. RODMAN et al., Appellees.
    Nos. 5479-5481.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 24, 1962.
    Rehearing Denied Feb. 28, 1962.

      Turpin, Kerr, Smith & Dyer, Midland, Bill Kimbrough, Odessa, McDonald, Sanders, Nichols, Wynn & Ginsburg, Edwards, Shannon & West, Fort Worth, B. Reagan McLemore, Longview, Orr & Orr, Fort Worth, Kerr & Gayer, San Angelo, Carrington, Johnson & Stephens, Dallas, Neill, Blanks, Lewis & Logan, San Angelo, Morrison, Dittmar, Dahlgren & Kaine, San Antonio, Golden, Croley, Howell, Johnson & Mizell, Dallas, Thompson, Walker, Smith & Shannon, Fort Worth, for appellants.
    Shepperd & Rodman, Odessa, Folley, Snodgrass & Calhoun, Amarillo, for ap-pellees.
    Finley & Scogin, Kermit, Johnson & Baker, Austin, for amicus curiae.
   FRASER, Justice.

The three cases here appealed are suits in trespass to try title brought by E. G. Rodman and W. D. Noel, as surface owners of all of the lands involved, against Evelyn Julia Atwood, Mary A. Allison, Kathaleen “Brawley, and many other individuals, corporations and institutions, as mineral owners under one or all of Sections 2, 8 and 10, in Block 44, Township 3 South, T. & P. Ry. Co. Survey, Ector County, Texas. We have been favored in this case with amicus curiae briefs on behalf of the Texas Landowners Protective Association and on behalf of the Texas and Southwestern Cattle Raisers’ Association and Texas Sheep and Goat Raisers’ Association.

This controversy arose by virtue of the fact that the plaintiffs-appellees claim ownership to the surface estate of the lands involved herein. This fact is not controverted, but the dispute is concerned with what is included in the surface estate and the “oil, gas and other minerals.” Between the years 1926 and 1936, R. L. (Buck) York granted and leased to, or .reserved from, various people mineral and royalty interests on the property or parts of the property here involved. These instruments used the term “oil, gas and other minerals.”

The plaintiffs attempted to sell large quantities of limestone, on the three sections here involved, to the Southwest Portland Cement Company, but the cement company .refused to recognize, for purpose of payment, the surface owners or owners of the surface estate as being the owners of the limestone. Plaintiffs brought this suit in trespass to try title against the defendant-appellants, seeking recovery of the “surface estate, including all sand, clay, gravel, caliche and limestone and all water and water rights,” in the respective tracts, and the appellants answered with general denials and pleas of not guilty. All of the three cases above styled in this opinion were tried to the court without a jury. Judgment was entered for the plaintiffs (surface owners), but such judgment limited the plaintiffs’ recovery to sand, clay, gravel, caliche and limestone, (1) which may be recovered or removed by the open pit or quarry method, and (2) conditioned that same ° would not include such substances when removed for the purpose of extracting pure mineral substances, such as iron, aluminum, gold, silver, and like substances; but the minerals used in the manufacture of cement were not included as such a pure mineral substance.

It can readily be seen, therefore, that this lawsuit is concerned with just one thing — namely, when R. L. York executed the various instruments conveying and/or reserving minerals, royalties, etc., did he, by such instruments, convey or reserve the limestone on the three sections involved herein? In other words, does the limestone and caliche belong to the owners of the surface estate, or to the owners and holders of the mineral estates or rights? We will not refer further to the various instruments in the record, as there is no dispute about their wording, nor are they necessarily informative for the purpose of this opinion, other than to present the problem by the use of the term “oil, gas and other minerals.”

The court made a number of findings of fact and conclusions of law, and we think it advisable to include a résumé of the same here, as follows: The court found that the sand, clay, gravel, caliche, limestone and water involved in this suit are not minerals within the ordinary and natural meaning of the word “minerals”; that they are not rare and exceptional in character and do not possess a peculiar value which would give them a special value or classification; that limestone suitable for the manufacture of cement is to be found in vast abundance in the state of Texas; that the limestone involved in this case underlies most, if not all, the land involved and may be removed by scraping off the topsoil and an overlying layer of caliche; that the limestone outcrops in places and is sometimes found on the surface; that, generally, caliche in this area is often found at the surface and is about ten feet thick, the limestone being found in a layer underneath about fifteen feet thick; that the caliche and limestone, as well as the sand, clay and gravel, are so closely related to the soil and so nearly a part of the surface of the soil itself that they are reasonably and ordinarily considered a part of the soil belonging to the surface estate, rather than a part of the minerals or mineral rights; that they can be removed only by quarrying or the open pit method, which destroys the surface for agricultural and grazing purposes; that such land is ranch land, contained in a big ranch recently used for grazing purposes; that the land involved is situated in a limestone country covering most of Ector County and surrounding counties, as well as what is known as the Hill Country; that the limestone here is of the same character as that in other sections of Texas; that to construe the words “and other minerals” in said deeds as including sand, clay, gravel, caliche, limestone and water would be an unreasonable construction of said deeds, and would be inconsistent with the grant of the oil, gas and other minerals because it would result in conveying the surface estate along with the oil, gas and other minerals, contrary to the intention of the parties to the instruments; that limestone of the same character is presently being sold for road-building, from sections near this land, for as much as four cents per cubic yard; that the selling price the ap-pellees would here receive would only net them about one-fourth of a cent per cubic yard; that, therefore, the limestone here involved is not as valuable, or any more valuable, than adjacent limestone being sold and used for building and road-making purposes.

Further, the trial court found that the building of a cement plant near the land involved herein increased the market for clay, caliche and limestone and the value thereof, but such did not change the character of the same from the ordinary meaning within the term of the grants so as to constitute them as minerals within the meaning of the grants, and such was not the intention of the parties; that the fact that such substances may be used for manufacturing cement does not convert them into minerals; that cement itself is not a mineral; that during the time of the conveyances of the oil, gas and other minerals —in other words, when they were severed from the surface estate — there was great activity and play in leases and conveyances of minerals and royalty interests in Ector and adjoining counties; that such interests were changing hands from day to day, and the thought uppermost in the minds of the parties to such deals was the exploration and production of oil and gas, and that little or no thought was given at that time to the surface estate, or the sand, clay, gravel, caliche and limestone. Also, the trial court found that the layer of caliche near the surface contains about sixty per cent calcium carbonate, and the limestone beneath about seventy-five per cent calcium carbonate; that the caliche, by the weathering process, has lost some of its calcium carbonate, but both still have the same constituents, but in different percentages of calcium carbonate and other elements suitable and necessary for manufacturing cement; that the cement may be manufactured by using caliche without the use of limestone, and vice versa; that both caliche and limestone are rock, and not minerals, as that term is used in its natural and ordinary sense.

We believe that the findings above described are substantially supported by evidence of probative value.

Otto P. Kroeger has been employed by the cement company since 1926 and is now division superintendent. He testified that he had continuously educated himself in cement manufacturing; that the limestone in the area involved here is about twenty feet from the surface; that caliche lies on top of the limestone and is low-grade limestone, but both are used to make cement; that you have to have caliche, as well as limestone, to make cement; that the company imports slag, as the local materials are slightly deficient in iron; that he selected the site • on Section 3, adjacent to the land here involved, and that the most important factor was the location with respect to the center of the sales area, which was in the Permian Basin; that other considerations were accessibility of .railroad and highway transportation and the availability of water, power and fuel; that these were considerations, as well as the presence of materials that would make the type of cement they wished. He also testified that the caliche contains sixty to seventy-five per cent calcium carbonate, and the high-grade limestone in their location would run eighty to ninety per cent calcium carbonate. He testified that raw materials for making Portland cement are abundant in this state; that the limestone and caliche being used by his company are not rare or special in character; that they are using ordinary limestone similar to that which he had testified as being abundantly found in the state. He then testified at length as to the method of extracting the limestone, which is quarrying, and estimates that his company pays approximately one-fifth of a cent per ton for the limestone; a limestone that would be rare and exceptional would be limestone that had the exact chemical composition desired by one who manufactures Portland cement; that he knew of none such in the state of Texas; that the technology of Portland cement has increased tremendously since the early days; that the technological advances have broadened the type of raw materials now usable. He says, “We call limestone a rock. Limestone is a rock.” He further testified that they bring up the top soil with the caliche; that the chemical composition of the top soil was not adverse and, to use his words, “The topsoil ends up in the cement bag.”

Another witness, Palmer Willis, testified that the three sections are valuable and suitable for agricultural purposes; that he had majored in Animal Husbandry in college; that he had seen cattle grazing in this area.

Dr. William P. Mather, a consulting geologist and chemist, testified that there is, in this area in Texas, an abundance of materials available for the production of Portland cement, and referring to a map described as plaintiffs’ Exhibit B, a geological map published by the University of Texas, stated that it represents various formations and outcrops in Texas; that there are 101 counties with limestone outcropping at the surface, and 52 other counties where caliche outcrops; that a vast majority of the limestone formations in the state are suitable for the production of Portland cement; that he didn’t know of any that could be called limestone that wasn’t suitable; limestone that can be made into Portland cement is not rare and scarce, but abundant, as illustrated by the olive-drab colors on the map; that this is limestone country, the whole Hill Country is limestone country, through Junction, Kerrville, Sonora and Ozona and right in here, and extending up into Upton County; this entire area in Texas is composed of limestone suitable for making Portland cement; that caliche is weathered limestone; that the important elements in locating a cement plant are market, water and fuel, transportation, and then raw materials; that raw materials are easier to find than markets; that limestone and ca-liche are obtained in Texas only by quarrying; that the primary constituent of limestone is calcium carbonate, and the same is true of caliche; that rock that has calcium carbonate is not a mineral, but such rock is called tachylyte, and the mineral is called hematite; that limestone is rock and is composed of minerals; that if one should go out here and pick up a handful of this dirt, it would also be composed of minerals; that when you take the limestone out, you destroy the surface.

Witness Clyde Chisum is an instructor in geology in Odessa College, and has been for seven years, holding a degree of B. S. in Geology. During his presence in this area he had studied caliche and limestone deposits, making numerous trips; that limestone is abundant in this area; that this is a limestone country without .reservations at all; that caliche is abundant in this area; that caliche is weathered limestone; that calcium carbonate is the principal component of limestone; that limestone is a rock; that mineral does not fit at all in this classification; that you cannot write a definite chemical formula for limestone; that calcium carbonate, spoken of as being in rocks, is not a mineral; that scientific teachings would treat the components of limestone as not being mineral.

Judge Paul Moss has lived in Ector County thirty-four years, and had an abstract business for twenty-nine years, up until two years ago; that he had been County Attorney and was the first District Judge in the county; that, from his thirty years’ experience in Ector County, where he has owned land and mineral and surface estates, and both together, and from his own knowledge and experience, the owners of the surface estate in this county have treated caliche and limestone as part of their surface property; that there is an abundance of caliche and limestone in the county; that the removal of caliche and limestone destroys the surface; that he sells limestone for road material; that he knew R. L., or “Buck”, York very well; that he felt that when these transactions here involved were consummated, the parties did not have limestone or caliche in mind; that at that time he had an abstract plant and that he probably did a little business with every major oil company in the state, and, as a lawyer, closed deals; and nobody, to his knowledge, was referring to caliche and limestone; that Buck York was one who went along with the crowd and did what was customary, and that he felt that Buck York never had in mind any royalty on caliche or anything like that, and had no intention of disturbing the surface or trying to convey it; that out here in this country it has always been customary that your surface owners had the rock and caliche and things like that, and that he (meaning Mr. York) was the man who sold it — not the oil and gas owners; that there was quite a boom from 1926 to 1935, and that people were interested in oil and gas; and, lastly, that the mineral owners do not participate in the money he receives for his crushed limestone.

Also, William A. Waldschmidt, a witness introduced by the appellants, who was a consulting geologist in Midland, testified that limestone was quite prevalent in the vast olive-drab area on the University of Texas map (plaintiffs’ Exhibit B), heretofore referred to, and that if someone were to testify that limestone is found in vast abundance in that area, he would not disagree too much. He also testified that calcium carbonate is present in caliche, and if more than fifty per cent is present in rock, he would refer to it as limestone.

We have included summaries of these witnesses’ testimony to illustrate our opinion that the court had substantial evidence of probative value to support and justify its findings.

We believe that the trial court reached the right conclusion. First of all, we will try to deal with the matter of the intent of the parties. It is elementary that the intent of the parties to an instrument is the all-important factor. The actual paper or writing, in the final analysis, merely represents what the parties believe they have conveyed or contracted. Therefore, the meeting of minds or intention is the component of these instruments, to which full and intelligent effect should be given. In the case before us, it is our belief, and we so hold, that by the term, “other minerals”, the grantor or grantors in the instruments herein involved did not intend to, and in effect did not, convey the limestone or caliche or surface shale. It will be noticed that the testimony of Judge Paul Moss substantially upholds this finding, as he talks about the customs of that period, the environment and habits of Mr. York, the grantor, and his own experience as rancher, oil man and abstracter. It is also elementary that Texas has long been considered a state recognizing the rule of two estates in real property, i. e., mineral and surface. Now, the testimony of the witnesses amply illustrates that if limestone is here adjudicated, and was intended in the original instrument, to be a mineral, then the attempt of the grantor to convey or reserve the surface estate was a futile and facetious thing, because it is uncontested that the removal of the limestone, caliche and shale destroys the surface. As one witness said, you cannot ranch or graze cattle in a caliche pit. Now we have the grantor, resident of a two-estate jurisdiction, deliberately and with obvious intent separating the surface estate from the mineral estate. His intent, therefore, must have been not to include limestone with the minerals, because he did not so specifically state, nor had such been the custom in this state or that area. Nor have caliche and limestone, so far as we know, been found to be minerals, in and during the long years that the same have been used for road-building and construction work. The attempted classification of- limestone and caliche as minerals seems to have arrived simultaneously with the erection of a twelve-million-dollar cement plant directly adjacent to the area involved. Further, to attempt to construe these instruments and the intent therein on the restricted basis of definitive word-meaning, to our minds, is neither feasible nor proper, because this record itself, as well as the citations in the many cases cited in the record, shows that there is an irreconcilable variation among and between those who have tried to define the word “mineral.” Geologists, scientists, courts, legislatures, dictionaries, and even encyclopedias, do not agree on the meaning of the word. For example, witness Chisum, the professor of geology, says that oil and gas themselves are not minerals, and if technical definitions only were applied, it might be alarming to contemplate the meaning of an instrument that conveyed oil, gas and other minerals, if his definition were accepted at full face value. But it has long been a legal custom to give effect to the parties’ intent, although they might mis-describe something or misunderstand its technical definition. The same is true of legal actions and pleadings. A lawsuit is what it is — not always what the pleader says it is; as, for example, a suit might be entitled one in trespass to try title in order to retain jurisdiction, when in truth and effect it was a suit on a contract.

In the 1962 pocket parts, Texas Jurisprudence, Volume 31-A, page 3, we find the following statement, which apparently collaborates with, and is derived from, statements in 37 A.L.R.2d 1340:

“And in wills, conveyances and reservations, the words ‘mineral rights’ are to be interpreted according to their ordinary and natural meaning when there is nothing in the instrument which indicates use in a technical or scientific sense. This is the established rule in the absence of clear indication otherwise, because it gives effect to the intention of the testator or other maker of an instrument who is presumed to be familiar with the ordinary and natural meaning of the words used.
“ * * * While limestone is technically a mineral, the physical characteristics and elements of these several substances being substantially the same, limestone, like the others, being found in a natural surface situation that warrants its consideration as a part of the surface rather than as part of the mineral estate. Heinatz v. Allen (1949) 147 Tex. 512, 217 S.W.2d 994 * * (Emphasis ours.)

In Winsett v. Watson, Tex.Civ.App., 206 S.W.2d 656 (writ refused), which case is mentioned in the Heinatz case, we find this statement:

“ * * * It was held that the better rule is that each case must be decided on the language of the grant or reservation, the surrounding circumstances and the intention of the grantor if it can be ascertained.”

In Psencik v. Wessels, Tex.Civ.App., 205 S.W.2d 658 (writ refused), which is a sand and gravel case, Chief Justice McClendon, in his opinion, makes this observation:

“We have reached the conclusion that sand and gravel was not included in the reservation, which we base upon the following considerations: ‘While the word “minerals” includes, in a technical sense, all natural inorganic substances forming a part of the soil, the term is used in so many senses, dependent upon the context, that such a definition is obviously too broad, for it would throw little, if any, light on what was meant in a particular case. So, to apply the word in the signification in which it is employed in the scientific division of all matter into the traditional three kingdoms to a grant of land containing an exception of the minerals, would be absurd, since all land belongs to the mineral kingdom, and the exception could not be given effect without destroying the grant.’ 36 Am.Jur., p. 283.”

Then, later, after discussing the various texts and authorities, Judge McClendon further says:

“ * * * No doubt every inorganic component of the earth’s crust is legally cognizable as mineral, if the parties affected choose so to deal with it; and this no doubt is true regardless of whether it may be removed or extracted for commercial or other profitable purposes. We know of no rule which would deriy the owner of the soil the right to sever the title of any such component from the general title to the soil. Such severance would unquestionably constitute a mineral title. The term legally cognizable as minerals’ must therefore be restricted to such minerals and mineral substances as are commonly regarded as minerals as distinguished from the soil in general. We have examined many cases and texts and we do not find that either sand or gravel is generally regarded as a mineral within the general term 'all minerals’, unless there is something in the context or surrounding circumstances to so indicate.” (Emphasis ours).

While this is a limestone case, we, too, have examined the authorities and cannot find, as we have indicated above, that limestone is generally regarded as a mineral. It certainly hasn’t been so regarded according to this record, in a multitude of cases and areas where it has been used for building purposes and the building of roads. There is evidence from a witness that the better class of limestone is valuable for high-class building purposes, and much more valuable for such use than for use in the manufacture of cement. Nor can we say here that the presence of the recently built cement plant (1958) could, in any way, make limestone a mineral at the time of these instruments (1926 to 1936). We think it abundantly clear that, at the time of the execution of the instruments involved herein, the grantors, and probably the grantees themselves, were preoccupied with the exploration for oil and gas, and the use of the term “other minerals” did not include chemical or mineral components of the surface, or a rock known as “lime-stone”, containing chemical or mineral elements that were useful in making cement. We believe that this man, York, the author of these instruments, did, according to the evidence before us, make his conveyances and reservations in keeping with the customs, usages and judicial environment of that area and time. There is no showing that Mr. York was any sort of a special scientist or technician, but the showing is all to the contrary— that he was an ordinary, normal, ranch and oil-man of that area and time, and we therefore believe that he had no intention, when he severed these two estates, of deliberately creating potential ruin of all of the surface by including limestone and ca-liche in the term “other minerals”. Otherwise there would have been no point in severing the two estates, because he would have been conveying, or reserving, something in an instrument that provided for the destruction of the very things he was trying to convey or reserve. Therefore, because there is no evidence here of any intent to use the words “other minerals” in their strict technical sense, or any evidence that any special consideration had been given to the matter of caliche and limestone, we hold that the parties to the instruments here involved did not intend, in the granting or reserving of mineral rights, to include limestone, caliche or surface shale. We further hold that, such being true, there is not sufficient legal reason to hold that limestone, caliche and surface shale were, by law, included; therefore, we hold that they were not included, either by intent or legal interpretation.

We turn now to the positions of the various parties to this controversy, as evidenced by the very able briefs of appellants, ap-pellees, and amicus curies, as to what limestone really is. There are many cases in the briefs holding that "other minerals” means valuable minerals which are not a part of the soil, and can be mined without destroying the soil. In the case of Cronkhite v. Falkenstein, 352 P.2d 396, the Supreme Court of Oklahoma deals with this same problem with respect to gypsum. In one of the briefs, gypsum is referred to as one of the minerals used in the final manufacture of cement, and this same brief states that there is a great similarity in the physical character and chemical content of gypsum and limestone. This court said:

“We conclude that by the use of the words in the mineral deed, ‘oil, gas’, preceding other minerals, the latter term embraced only minerals of the same generic class as oil and gas, and did not include gypsum rock.”

Again we mention that, in Texas, we have always recognized the two estates of surface and mineral, and the very word “limestone” has considerable generic significance, as well as semantic importance. The Supreme Court of Mississippi, in Witherspoon et ux. v. Campbell, 219 Miss. 640, 69 So.2d 384 (which was a gravel case), says as follows:

“Of course, the ordinary oil and gas lease refers to the minerals that are to be explored for as being ‘oil, gas and other minerals’, and under the doctrine of ejusdem generis the words ‘and other minerals’ have reference to other minerals of like kind and character which are not a part of the soil, such as the oil and gas specifically mentioned. * * * We, therefore, think that it is clearly to the public interest, and a matter of fairness to a great majority of the landowners of this state and future purchasers of land, that if the term ‘minerals’ is to include all of the gravel on the land the conveyance should specifically so declare.”

There is reference here made, also, to our earlier statements with reference to the matter of intent. We do not believe that limestone which, according to the witnesses here, is shoved into the kiln along with caliche, dirt, and even some bushes, is to¡ be or should be considered as a mineral.. It is true it does contain chemical elements'that make it useful in the manufacture of cement. It might be noted, for what it is worth, that these elements are not extracted, but that the whole rock and caliche and dirt content goes in, and emerges later as cement, and that the various components are not extracted and the substantial part of the rock thrown away. We therefore hold that limestone was not a mineral, or such a material as was contemplated by the term “other minerals”, used in the instruments. Nor do we think that it is established that, because of the great progress in technical and scientific research,, limestone has become a mineral as of today. We believe it to be a rock-like part of the surface, found in abundance in a hundred counties in the State of Texas, and useful in the making of cement, as well as for road-building and other types of building..

Much has been said and urged that usage has made limestone a mineral. We do not accept this statement, as indicated above. Further, if the court should so-find, then, after science and technology find new uses, both as major elements or offsetting elements, for various components of the earth or its surface, all contracts would again have to be re-examined, and the owners of surface and mineral estates would not know, now or then, the exact perimeters of what they hold. As we have held above, and hold here, we think the intent at the time of the transaction governs and controls the extent of the conveyances, or reservations. Certainly, usage cannot re-write, supplement or alter a contract made many years before, without the consent of the contracting parties. It will be remembered that Judge Moss testified that his limestone is similar and adjacent to-that here involved, and the evidence developed that he was getting much more money for his limestone, which was being-sold and used for road-building; and it is interesting to note that Judge Moss observed that no royalty was being paid on any of the limestone from his property being used for building purposes. To hold that usage controls would make for hopeless confusion, because if limestone is — as the witnesses testified — highly useful and valuable in building and construction, then there would be an inevitable conflict between those who claim that it is a mineral and want to use it for cement, and those who claim that it is rock used for construction. We quote from a statement in one of the briefs of the Heinatz case (to be hereinafter considered), where the petitioners state, after alleging that limestone can be made into cement:

“ * * * If limestone which may be used for cement meets the test of ‘rare and exceptional character’ and possesses ‘a peculiar property’ giving a ‘special value’, then the building stone which is more valuable and of rare and exceptional character certainly should come within the classification of minerals for the reasons stated.”

For these reasons we do not think usage, which here is used to mean subsequent development to the dates of the instruments, can or does change the intent of the grantors and grantees.

Lastly, much of this lawsuit, and of course the position of the appellants, is based on the case of Heinatz v. Allen (supra). In that case the Supreme Court, speaking through Judge Smedley, held that the limestone therein involved was not a part of the minerals, but went on to say:

“In our opinion substances such as sand, gravel and limestone are not minerals within the ordinary and natural meaning of the word unless they are rare and exceptional in character or possess a peculiar property giving them special value, as for example sand that is valuable for making glass and limestone of such quality that it may profitably be manufactured into cement. Such substances, when they are useful only for building and road-making purposes, are not regarded as minerals in the ordinary and generally accepted meaning of the word.”

(Reference is here made to our previous discussion on the subject of usage, where the same type of limestone might be considered either a mineral or not, according to how it was being used). This statement, of course, is the substantial basis of appellants’ position. We do not believe that this statement, coming as it does after and aside from the court’s disposition of the case, is controlling in the matter before us. Appellees vigorously urge that such is obiter dicta. We are inclined to agree. However, be that as it may, we still adhere to our holding that, at the time of the instruments involved herein, the parties did not consider limestone and caliche as “other minerals”, and did not intend to convey or reserve them as such; nor do we believe that appellants’ interpretation and construction of Judge Smedley’s statement can be extended as far as appellants would wish. It will be remembered that it is in evidence, through the witnesses, that the cement company has to import a certain amount of slag for its iron content; that the most important factors in the location of a plant are sales area, transportation, fuel, etc.; that the limestone and caliche used by the cement company off sections adjoining these here involved, and containing similar type of limestone and caliche, are not “rare or exceptional” in character; that they are using ordinary limestone similar to that which is found in abundance in the state; that a limestone that would be “rare and exceptional” would be limestone that had the exact chemical composition desired by one who manufactures Portland cement; that the witness knew of none such in the State of Texas. Another witness testified that he didn’t know of any that could be called limestone that wasn’t suitable; limestone that can be made into Portland cement is not rare and scarce, but actually abundant. (These statements are taken largely from testimony of witnesses Otto P. Kroeger and Dr. William P. Mather). We do not believe that this statement by Justice Smedley was intended by him, or the court, to destroy or delineate the Texas concept of two estates — mineral and surface — in the absence of specific intent so to do when found in the instruments involved. The Heinatz case refers specifically to the Winsett and Psencik cases. We feel that the holding in the Heinatz case is that limestone is not a mineral, and the statement by Judge Smedley — which it is alleged by the appellees is not necessary to the disposition of the case and, therefore, obiter dicta — does not indicate an intention to make such limestone here involved a mineral. As the witness Kroeger stated (and it must be noted again that he is division superintendent of the cement company and has been in their employ since 1926), he knew of no limestone in this area or in the state that was rare and exceptional to the point that it had the exact composition desired by one who manufactures Portland cement.

We turn for a moment to other jurisdictions. The Supreme Court of North Dakota, in MacMaster v. Onstad, 86 N.W.2d 36, after mentioning the Witherspoon and Psencik cases (supra), discusses the Heinatz case and then states, referring to the Heinatz case, as follows:

“This decision suggests that the class of minerals conveyed by a mineral deed is limited to those which are valuable, are not a part of the soil and may be mined without destroying the surface. To the same effect is Eldridge v. Edmondson, Tex.Civ.App., 252 S.W.2d 605.”

In Cronkhite v. Falkenstein (supra), the Supreme Court of Oklahoma considered many authorities, including the Heinatz case, and said as follows:

“We conclude that by the use of the words in the mineral deed, ‘oil, gas’, preceding other minerals, the latter term embraced only minerals of the same generic class as oil and gas, and did not include gypsum rock.”

Other jurisdictions and courts have also spoken on the meaning and effect of the Heinatz case. In 36 Am.Jur. 306, section 35, we find the text stating:

“Limestone is not included in a grant or reservation of minerals and neither is sand gravel or clay.”

We do not feel it expedient or necessary to go into any further extended discussion of the many cases and texts that have spoken on this matter. We simply hold that the quotation from the Heinatz case, and the Heinatz case itself, does not support the appellants’ position here; but, on the contrary, the case itself supports the position of appellees. We believe that the many decisions and authorities and texts do not establish limestone as a mineral, and we hold that usage cannot accomplish this fact and thus change the terms of instruments executed many years ago. To hold otherwise would, as we have said previously, throw into hopeless confusion all mineral grants or reservations in at least a hundred Texas counties where limestone, according to the evidence, is found in abundance. Not only would this be true, but the precedent so created would lay the ground-work for controversy in all such instruments, as science and chemistry develop new uses and new processes. The amicus curte briefs emphasize this fact as having grave importance. Our holding is that contracts and instruments such as those here involved should be construed and given effect in terms of their environment at the time of execution. By environment we mean the ordinary terms, customs and usages then in effect as these are evidence of the intent of the parties. It must be remembered that the statement in the Heinatz case came many years after the instruments here involved had been executed and were in operation.

We therefore hold that the trial court reached the correct conclusion. Appellants’ points are accordingly overruled and the judgment of the trial court affirmed.


author: DENTON, Chief Justice.

text:
    Dorothy Faye MOODY v. John RAINEY et al.
    No. 7107.
    Court of Civil Appeals of Texas. Amarillo.
    March 5, 1962.
    Rehearing Denied March 26, 1962.
    R. L. Templeton, Wellington, for appellant.
    Paul Spillman, Wellington, for appellees.
   DENTON, Chief Justice.

Appellant, Dorothy Faye Moody, a married woman whose disability of coverture has been removed, sought recovery of damages from appellee, John Rainey, sheriff of Collingsworth County, Texas, and United States Fidelity and Guarantee Company, the surety on Rainey’s official bond. Mrs. Moody seeks damages alleged to have resulted from Rainey’s altering and changing, the return of a writ of habeas corpus by which Mrs. Moody sought custody of her two minor children. She contends that as a result of the changes made on the returns, the persons allegedly illegally restraining the children did not appear at the hearing originally set and that the delay allowed her husband to secrete the children from her. Money expended in locating the children plus damages for mental pain and suffering were prayed for. The trial court granted appellee’s motion for summary judgment and denied appellant all relief prayed for.

Appellant brings forward five points of error which in effect complain of the trial court granting appellee’s motion for a summary judgment on the grounds there are material issues of fact; that appellee’s pleadings failed to point out defects in appellant’s petition; and that it was improper to act on the motion for summary judgment before passing on special exceptions to appellant’s petition

It is fundamental that in hearing a motion for summary judgment the trial court considers affidavits, depositions and other evidence before it for the purpose of determining whether or not there is a genuine and material fact issue presented, and whether or not the moving party is entitled to judgment as a matter of law. Haley v. Nickels (Civ.App.) 235 S.W.2d 683 (no writ history); Fricke v. Wagner (Civ.App.) 315 S.W.2d 584 (refused n. r. e.); Allen v. F. W. Woolworth Co. (Civ.App.) 315 S.W.2d 612 (refused n. r. e.).

The only testimony in the record consists of the depositions of Mrs. Moody and Mr. Rainey, the two parties to this appeal. It is to be noted that the surety company is not a party to this appeal. These depositions together with the pleadings and the petition for writ of habeas corpus, the writ and the returns constitute all the summary judgment evidence before us. The basic question is whether or not Sheriff Rainey made a false, fraudulent and untrue return on the writ of habeas corpus. After examining all the evidence we conclude there is no material fact issue to be decided. We find no conflict in the testimony of the parties and the instruments are a part of this record. It is admitted that Rainey personally served Mr. and Mrs. J. F. Moody, the paternal grandparents of the two minor children, and Forrest Moody, the father of the minor children. The returns so reflected, and after they had been filed in the district clerk’s office, Rainey withdrew the citations and marked through the names of the Moodys. The writs were then served on Rainey by the local constable. This fact is evidenced by the returns signed by the constable and the sheriff freely admitted these changes were made. We therefore conclude the facts are undisputed.

Vernon’s Ann.C.C.P., Art. 113, describes a writ of habeas corpus as “ * * * an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and plate named in the writ, and show why he is held in custody or under restraint.” Art. 114, C.C.P., provides “The writ runs in the name of ‘The State of Texas.’ It is addressed to- a person having another under restraint, or in his custody * *

In the instant case two writs were issued: one purportedly was addressed' to Mr. and Mrs. J. F. Moody and the other to Forrest Moody; however both writs were in fact addressed to John Rainey, appellee, and directed Rainey “to produce and have before Lewis M. Goodrich, Judge of the 31st District Court * * * the person and body of Mr. and Mrs. J. F. Moody, illegally restraining Brenda Faye and Gwendolyn Moody whom it is alleged you illegally restrain of Ms liberty, when and where you will show why you hold the said Mr. and Mrs. J. F Moody in custody and restrain him of his liberty.” (Emphasis added.) The language of the other writ was identical but it was arranged in slightly different order, and the name Forrest Moody appeared instead of Mr. and Mrs. J. F. Moody. These writs were obviously incorrectly drawn. They were misdirected to Rainey who admittedly did not have any of the persons named in his custody. Rain-ey timely filed an instrument advising the trial court he did not have any of the per■sons named in his custody. Under these •uncontroverted facts we can not say Rainey made a false or untrue return. It appears Tie was simply making an effort to comply with the writ when he requested the constable to execute the citation. The original service on the Moodys was of no force and effect in that the returns did not accurately reflect the pleadings of the petition ■and writ itself.

Appellant relies primarily on Willis v. Victoria Bank & Trust Co. (Civ.App.) 76 S.W.2d 532 (no writ history). That case is not controlling here. It was a venue case, ■ and it is also distinguishable from the instant case on the facts. That case involved a situation where the sheriff was called on to personally serve four defendants. Service was obtained on only three of the defendants, but the official return on the original citation showed service was had on all four defendants. After a default judgment had been obtained on all defendants jointly and severally, judgment against the defendant not served was set aside. At the time the default judgment was taken, the unserved defendant owned property subject to execution which was adequate to satisfy the judgment. However, when personal service was later obtained most of this property liad been disposed of and only a portion of the judgment was satisfied. We do not consider this case authority to support appellant’s position.

After reviewing the pleadings together with all summary judgment evidence, we are convinced the appellee was entitled to a judgment as a matter of law. In our view Rainey did not violate the duty imposed upon him by Art. 6873, Vernon’s Ann. Texas St.

Having considered all of appellant’s points of error, we are of the opinion they reflect no reversible error. The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Clyde A. LAKE, Jr., Relator, v. ZAVALA COUNTY DEMOCRATIC EXECUTIVE COMMITTEE, Respondents.
    No. 13991.
    Court of Civil Appeals of Texas. San Antonio.
    March 8, 1962.
    Jackson & Jackson, Crystal City, for relator.
    R. A. Taylor, Jr., Crystal City, for respondents.
   PER CURIAM.

This Court on February 26, 1962, granted Relator, Clyde A. Lake, Jr., leave to file his petition for writ of mandamus, directing certain Democratic Party officials to place his name as a candidate for the office of County Commissioner, Precinct No. 2, of Zavala County, Texas, on the official ballot for the primary election to be held May 5, 1962. The respondents are Hon. R. A. Taylor, Jr., Chairman of the Zavala County Democratic Executive Committee, and J. R. Barker, Cecil Holt, E. M. Holdsworth, W. D. Cornett, Henry Volz and Earl King, members of said Committee.

The material facts are undisputed. On January 11, 1962, Relator duly filed his application, dated the same day, as a candidate for County Commissioner of Precinct No. 2, Zavala County, Texas, in the Democratic Primary Election to be held on May 5, 1962, with Hon. R. A. Taylor, Jr., Chairman of the Executive Committee. At such time Relator possessed the legal qualifications to hold such office. The application met all of the requirements stated in Art. 13.12, Vernon’s Texas Election Code. The Democratic Executive Committee met on February 12, 1962, in keeping with the provisions of Art. 13.08, Vernon’s Texas Election Code, and assessed the candidates an equitable amount for necessary expenses of holding the general and second primary, and Relator was notified at once by letter properly addressed and stamped, of the amount of his assessment. Relator lives in Crystal City, the County Seat of Zavala County, and the letter was no doubt delivered to his residence the following day. In some way this letter was placed in a drawer and not called to the attention of the Relator until Monday, February 19. He failed to pay his filing fee on Saturday, February 17. The letter was found on Monday, by Relator’s wife, Helen Lake, and called to his attention. On the same day, he went to the office of the County Chairman and tendered to him a check in the sum of $31.50. It was accepted by the Chairman, who gave his receipt therefor which reads as follows:

“The sum of $31.50 was received by me by personal check of Clyde A. Lake, Jr., on February 19, 1962, at 4:00 P.M., in payment of his assessment as candidate for County Commissioner of Prec. 2 of Zavala County, Texas, and accepted subject to determination as to the legality thereof by the Democratic Executive Committee of Zavala County.
/s/ R. A. Taylor, Jr. Chairman, Democratic Executive Committee, Zavala Cotinty, Texas.”

On February 20 the Executive Committee met and, after a hearing, decided not to place Relator’s name on the ticket and returned his check to him. This application was presented to the court in keeping with the provisions of Art. 1735a, Vernon’s Ann. Civ.Stats., which gives this Court jurisdiction of such a proceeding.

We have decided that this case cannot be distinguished from the case of Fisher v. Dallas County Democratic Executive Committee, Tex.Civ.App., 333 S.W.2d 604, and, for the reasons therein stated, we hold that inasmuch as Relator did not deliberately fail to post his filing fee with the County Chairman at the time requested, and did tender it to the County Chairman on the same day it would have been received if sent through the mail, as is authorized by Art. 13.08, supra, he is entitled to have his name placed on the official ballot of the said primary as a candidate for nomination to the office he seeks.

We are of the opinion that Respondents will place Relator’s name on the ballot upon receipt of this opinion, and upon receipt of the sum of $31.50 from Relator, therefore the Clerk of this Court will not issue the writ of mandamus unless after receiving a copy of this opinion and the proper filing fee, Respondents still refuse to place Relator’s name upon the official ballot of the Democratic Primary to be held in Zavala County on May 5, 1962.

We will not permit the filing of a motion for rehearing herein, and this opinion is immediately effective.


author: BELL, Chief Justice.

text:
    HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Leonard C. KAHN, Appellee.
    No. 13902.
    Court of Civil Appeals of Texas. Houston.
    March 8, 1962.
    Rehearing Denied March 29, 1962.
    Clawson, Jennings Sr Clawson, Houston, Max H. Jennings, R. Philip Schulze, Jr., Houston, of counsel, for appellant.
    Leonard C. Kahn, Gizella E. Salomon, Houston, for appellee.
   BELL, Chief Justice.

The appellee recovered judgment against appellant for the sum of $2,232.00, which represented the reasonable cost of medical expenses incurred by appellee in furnishing necessary medical treatment and cure of injuries received by his minor son when the boy in some manner brought his bicycle into collision with an automobile.

The facts are undisputed so far as they are known. The young son in some way managed to bring the bicycle he was riding into contact with the rear of an automobile, not belonging to appellee, that was parked on a public street in the City of Houston.

Appellee had a policy of insurance that provided for medical payments to members of his family where a member was injured “through being struck by an automobile.”

Appellant’s position is there is no coverage because the young son was not struck by an automobile, but he struck the automobile. Appellant says the automobile must be the acting or propelling force. The policy provision actually covered medical payments where the injuries were caused by accident “while occupying or through being struck by an automobile.”

Though the question presented is not free from difficulty, we have reached the conclusion that appellee’s son was injured “through being struck by an automobile.” While we have found no case precisely in point on the facts, there are cases that have interpreted the language used in the policy as applied to comparable situations, In the case of Carson v. Nationwide Mutual Ins. Co., 169 N.E.2d 506, the Court of Common Pleas of Ohio had before it the question as to whether the insured had been “struck by” a land motor vehicle. It appeared the insured was driving his farm tractor along a highway and a truck ran into the tractor. The truck at no time came into physical contact with the insured. The insurer contended because there was no physical contact between the truck and the insured, insured was not “struck by” the truck. The court held that the words used in the policy were to be given their ordinary and usual meaning. Liability, it said, was to be determined in accordance with the plain, ordinary and popular sense of the language used. It then held that the insured had been “struck by” the truck. Of course, literally the collision or striking was between the two vehicles.

The Supreme Court of Texas, in the •case of Hale v. All State Insurance Co., 344 S.W.2d 430, quoted extensively from the above case and approved the language used, both from the standpoint of the rules of construction employed and the conclusion reached. In the Hale case the Court had two questions before it, the first of which we need not notice. The second question was whether the insured received bodily injury “through being struck by an automobile,” when an automobile struck the truck in which insured was riding but did not come into physical • contact with the insured. The court held that insured was injured “through being struck by an automobile.” The court quoted with approval the definition of the word “strike” as given by Webster’s International Dictionary. The meanings there given the word “strike” are various, but one very significant one is “to come into collision with.” See also American Casualty Co. of Reading, Pa. v. Cutshall, 205 Tenn. 234, 326 S.W.2d 443.

A case more nearly in point is that of Davilla v. Liberty Life Insurance Co., 114 Cal.App. 308, 299 P. 831, by the District Court of Appeals of California. We have there a case nearly the same as we have here. In that case the court had to determine whether the insured had been injured “through being struck.” The facts were that an automobile was driven into a street ahead of the motorcycle occupied by the injured party. For some reason the automobile stopped. The injured party, in trying to stop the motorcycle, lost control of it and was thrown to the pavement. He slid along the pavement until he hit the rear wheel of the stationary automobile. He died from injuries received. The insurer contended the death was not caused by the deceased “being struck.” Recovery by the beneficiary was had in the trial court. On appeal, one complaint was that part of the court’s charge that included as one meaning of the word “strike”, “to come into collision with.” The court, in holding deceased’s death resulted from his “being struck”, said:

“The policy merely requires that the insured be struck without specifying what shall strike. Its argument is based upon the assumption that the verb ‘strike’ requires that both its subject and its object be in motion, and that therefore the insured could not have been struck by a stationary automobile. * * * The added phrase is one of the definitions of the verb ‘strike’ given by Webster’s Standard Dictionary. ‘Collision means a striking together; violent contact; the act of colliding. * * * In simple terms it is a striking together of two objects. Both may or may not be moving. One may be stationary.’ ”

Here if the insurer had intended to limit coverage to injuries received as a result of insured being struck by a moving automobile, it could easily have so provided. It is a matter of common knowledge today that with extensive vehicular traffic people are very frequently injured when the vehicle they drive comes into contact with a stationary vehicle occupying the street. The policy does not require that the beneficiary be free from negligence in order to recover. The policy is truly one of insurance. We think the overriding purpose of the policy is that the insured shall be injured as a result of collision with an automobile other than the one he may be occupying. If there is such a collision and the insured receives injuries, he has received such injuries “through being struck by an automobile.”

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    W. P. CONNOR and C. T. Robbins, Appellants, v. C. E. LANE, Appellee.
    No. 3938.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1962.
    On Motion for Rebearing Feb. 15, 1962.
    Ramsey & Ramsey, San Augustine, for appellant.
    Bill A. Martin, Newton, J. L. Smith, San Augustine, Arthur Mitchell, Austin (on rehearing only), for appellee.
   WILSON, Justice.

This trespass to try title action began as. a partition proceeding instituted by appel-lee, Lane, in which he alleged appellants, Connor and Robbins, were joint owners with him of four tracts comprising 180.3 acres. The parties agree that the answers-of Connor and Robbins asserting exclusive ownership, with a plea of not guilty, converted the partition suit to one of trespass to try title.

During the marriage of Lane’s stepfather and his mother, tracts of 106.6 acres and 40.7 acres were conveyed to the stepfather as named grantee. Thereafter, Lane’s mother died intestate. Lane’s stepfather subsequently died, leaving a will in which he devised “all my other property”, after specific bequests, to defendant Robbins, his son by a prior marriage.

Lane claims the community one-half interest of his mother, alleging Robbins is his cotenant or tenant in common; defendant Robbins contends the entire freehold passed to him by his father’s will; and Connor is the grantee of Robbins by deed conveying the 180.3 acres for valuable consideration, filed for record about three years before suit.

Jury findings were against appellants Robbins and Connor on their pleas of ten-year adverse possession, and their pleas of estoppel based on allegations that Lane had told them he was “not claiming any” of the land. By the judgment the court concluded plaintiff Lane and defendant Connor are ■sole owners, and entitled to partition of the 180.3 acres, except a royalty interest; and directed partition as prayed for by Lane.

Appellants say that Lane proved only an equitable title, because the deed to his stepfather, the asserted common source, named only the stepfather as grantee; that Tinder such decisions as Hill v. Moore, 62 Tex. 610; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909; Howard v. Commonwealth Bldg. & Loan Ass’n, 127 Tex. 365, 94 S.W.2d 144; and Stahl v. Westerman, Tex.Civ.App., 250 S.W.2d 325, where only the husband’s name is mentioned in the deed by which community property is acquired, the wife’s interest therein is equitable in nature, and upon her death such interest passes to her heirs as an equity; and therefore Lane is in the position of seeking to prevail over the holders of the legal title by showing only an equitable title or interest.

This contention is applicable only to appellant Connor, alleged by Lane to own one-half the fee except the reserved royalty interest therein, and as to him we think the position is correct and reversal is required unless it was shown he was not an innocent purchaser. We find no direct evidence indicating he had any notice, actual or constructive, of the equitable title or interest of Lane.

Appellee counters that appellants neither pleaded the innocent purchaser defense nor requested submission of any issue thereon, and hence, have waived it as a basis for defeating Lane’s effort to establish his title so as to be entitled to partition.

This narrows the question to determination of the party upon whom the burden of proof rests as to the innocent purchaser issue. Where the holder of an equitable title relies on it in this type of case to prevail over the subsequent purchaser of the legal title, the burden rests on the former to establish the holder of the legal title had notice, and was not an innocent purchaser. Hill v. Moore, 62 Tex. 610, 615; Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121; Teagarden v. R. B. Godley Lbr. Co., 105 Tex. 616, 154 S.W. 973, 974; Howard v. Commonwealth Bldg. & Loan Ass’n, 127 Tex. 635, 94 S.W.2d 144, 145; Baldwin v. Root, 90 Tex. 546, 40 S.W. 3; and see De la Vega v. League, 64 Tex. 205, 216; Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 347, 109 A.L.R. 739; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909, 911; Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 703; Banks v. Blake, Tex.Civ.App., 143 S.W. 1183; Gillian v. Day, Tex.Civ.App., 179 S.W.2d 575, 578, writ ref.; Burden of Proof in Priority Problems, X Baylor L.Rev. 42. The holder of the legal title in such case is not required to plead he was an innocent purchaser. Barnes v. Jamison, 24 Tex. 362.

The burden resting on Lane, therefore, to establish Connor was not an innocent purchaser, the issue was “one relied upon” by Lane under Rule 279, Texas Rules of Civil Procedure, and no duty rested upon appellants to request its submission. Whether this issue be regarded as an independent ground of recovery by Lane, or a component element of such ground under that Rule and Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, the issue was not “conclusively established under the evidence”, and no issue to which it relates or is referable was submitted or requested. Consequently, the issue was waived by Lane, Johnson v. Miller, 142 Tex. 228, 177 S.W.2d 249, 250; Grant v. Marshall, 154 Tex. 531, 280 S.W.2d 559, 564, and he failed to establish title to his interest as against Connor under the equitable right relied upon.

Appellants complain that Lane failed to offer any competent evidence of interest in two 16½ acre tracts described in his pleading, or of a common source from which title thereto emanated. We fail to find any such evidence in the record. Lane introduced two deeds only, which conveyed to his stepfather tracts of 106.6 acres and 40.7 acres respectively, separately described in the pleading. Appellee points to no evidence relating to the two smaller tractsi

Lane established his equitable interest in the 106.6 and 40.7 acre tracts as against Robbins, but the latter has parted with his title, and no partition of the royalty interest is sought. Hence, no necessity for statutory partition exists. This case does not involve, and we do not pass on any additional rights which may exist, to accounting or otherwise, as between Lane and Robbins. Other points do not require consideration, in our opinion, but if it be determined consideration is required, we would overrule them.

The judgment is reversed and judgment is here rendered vesting title in Connor to the land described in the petition, Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, Syl. 2, effect being given to the reservation of royalty. Costs are taxed against appellee.

Opinion On Motion For Rehearing

Appellee’s motion for rehearing is granted to the extent that it is ordered that the cause be remanded. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458. In other respects the motion is overruled.


author: CHAPMAN, Justice.

text:
    John H. WHITE, Appellant, v. Paul BOND et al., Appellees.
    No. 7109.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1962.
    Rehearing Denied March 26, 1962.

      White & White, Borger, for appellant.
    Linn & Helms, Spearman, for appellees.
   CHAPMAN, Justice.

Appellees, Paul Bond, R. C. Jinkins, J. L. Harris and Ruby Smith, a widow, plaintiffs below, brought suit against John H. White under Art. 4004, Vernon’s Ann.Tex.Civ. St. to recover damages based upon fraud in the misrepresentation of material facts knowingly made to appellees by appellant White and his agent Orr concerning stock in a proposed uranium mining corporation. Upon motion by appellant all the cases were consolidated. The case was tried to a jury, which resulted in a verdict for all appellees for both actual and exemplary damages.

The jury found that John H. White personally represented to appellees Bond, Jin-kins and Harris and through his agent, J. W. Orr, represented to Ruby Smith that he had good title to the mining claims in question; that “this was a big group with people all over the country in it and that it had business men, mining men, geologist and other specialist in charge of various phases of managementand that “this was good stock.” They then found each such representation was material, each was willfully made, that all such representations were false, and that appellee’s relied upon all such representations in purchasing such stock. The jury also found exemplary damages for each plaintiff in the exact amount of their respective actual damages. Judgment was awarded by the trial court in accordance with such jury findings. From this judgment appeal has been perfected to this court.

In his first group of points appellant asserts reversible error of the court in refusing to sustain the plea of the two-year statute of limitations, which is the applicable limitation statute to Art. 4004, V.T.C.S.

The pleadings upon which all ap-pellees went to trial alleged they did not discover the fraud until on or about September 15, 1958. All original petitions were filed before two years after said date. Taking the testimony with respect to the discovery of fraud in its most favorable light for appellant it does not show as a matter of law that any of the suits were filed more than two years after the discovery of fraud or after two years from the time when by the exercise of due diligence they should have discovered it. Appellant filed objections to the court’s charge and an application for instructed verdict. In neither did he raise the question of the failure of the court to submit issues upon the limitation questions nor did he request special issues thereon. Therefore, the questions on the issues of limitation were waived. Rules 272 and 279, Vernon’s Ann.Civ.Tex. Rules of Civil Procedure; McCarver v. City of Corpus Christi, 155 Tex. 153, 284 S.W.2d 142; Fenn v. Boxwell, Tex.Civ.App., 312 S.W.2d 536 (N.R.E.); Sulser v. Caraway et al., Tex.Civ.App., 134 S.W.2d 426 (N.W.H.); Money v. Dameron, Tex.Civ.App., 70 S.W.2d 291 (Writ refused); Williams et ux. v. Ballard et al., Tex.Civ.App., 256 S.W.2d 978 (N.W.H.). Accordingly, the group of issues concerning the limitation questions are overruled.

In the next group of points appellant asserts error in the failure of the court to grant his motions for instructed verdict and judgment notwithstanding the verdict as to appellee, Ruby Smith, because she failed to allege that J. W. Orr was appellant’s agent in the transaction and because the evidence did not conform to the pleadings. The following allegation is made:

“This is a suit based upon misrepresentations, of material facts knowingly made to plaintiff by defendant and defendant’s agent J. W. Orr concerning stock in Ziza Corporation which plaintiff relied on to her damage, all of which will be hereinafter more specifically alleged.” (Emphasis ours.)

The transcript before us fails to show any special exceptions to the pleading, and in the absence thereof we believe it was sufficient. Rule 45, V.A.T.R. provides that a legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole. After pleading that J. W. Orr was appellant’s agent, a legal conclusion not excepted to, Mrs. Smith then pleaded specifically and in detail the representations made by appellant and his agent to her.

Pleading a legal conclusion is permissible if the pleader’s adversary is not mislead by it. Texas Employers’ Insurance Association v. Price, Tex.Civ.App., 336 S.W.2d 304 (N.W.H.). There is certainly not anything in this record to indicate appellant was mislead by the pleadings of agency on the part of Orr, and the agent finally admitted the gift of stock for his services.

Though Mrs. Smith was rather rambling and not as coherent as a witness should be she testified Mr. Orr told her he was selling the stock for Mr. White, that it would be just a few days before they would have it out on the market, that she would buy it for a penny a share and after she bought it the stocks would be ten cents a share, that the uranium was all around them, that they were working it and they could not fail. We believe, in studying her testimony as a whole, it was at least sufficient to justify the submission of the sets of issues showing agency and the representation that “this was good stock.” Therefore, the court properly overruled appellant’s motions for instructed verdict and' for judgment notwithstanding the verdict.

In his next set of points appellant asserts error in permitting parole evidence to vary the terms of the contract, in admitting testimony of the conduct of the business of the later formed corporation, in failing to grant a judgment N.O.V.- for him for the reason that the answers of the jury to the issues submitted did not constitute fraud, and because of a lack of proof of knowledge of falsity.

This suit was brought for fraud based upon both oral and written misrepresentations made to appellees. Our courts have held that: “Whenever issues of * * * fraud, and good faith are raised, the evidence must take a rather wide range and may embrace all the facts and circumstances which go to make up the transactions, disclose its true character, explain the acts of the parties, and throw light on their objects and intentions.” Blanton v. Sherman Compress Co., Tex.Civ.App., 256 S.W.2d 884 (N.W.H.); Chandler v. Butler, Tex.Civ.App., 284 S.W.2d 388 (N.W.H.).

Art. 4004, V.A.T.S. provides in part as follows:

“Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock companies shall consist of either a false representation of a past or existing material fact, or false promise to do some act in the future which is made as a material inducement to another party to enter into a contract and but for which promise said party would not have entered into said contract.”

Under the rules just announced we believe the evidence complained about in the points under discussion was clearly admissible and that such testimony constituted fraud in each instance in one or more of the representations made to each appellee upon which the issues were based. Appellant admitted he told them he had good title. Such statement was in response to opposing counsel’s inquiry as to what he represented to the proposed investors at one of the meetings before they invested concerning title to the claims upon which he was attempting to sell them stock. It was obviously clouded because he used $2750.00 of appellees’ money to pay off those claiming the title. Appellant was a lawyer with more than 30.years experience in the practice of his profession. We believe it would have to be assumed that he knew he did not have good title to property which was clouded by a pending suit and which he later paid at least $2750.00 to those asserting title in order to perfect it.

There is also sufficient testimony to justify the submission of the other issues on fraud and to support the jury’s affirmative findings thereon. Appellant certainly knew there was not “a big group with people all over the country in it and that it had business men, mining men, geologist, and other specialist in charge of various phases of management” when he was, according to this record, the guiding light himself and the complete manager making all the important decisions. Some of the provisions of Art. 4004 have been declared invalid but the above quoted provision is valid. Sibley v. Southland Life Ins. Co., Tex., 36 S.W.2d 145, Syl. [1-4].

“The utterance of a known false statement, made with intent to induce action * * * is equivalent to an intent to deceive.” Texas Industrial Trust v. Lusk, Tex.Civ.App., 312 S.W.2d 324 (Writ Refused).

Appellant insists there was no proof of knowledge of falsity. We do not agree but even so, arguendo only, this would not per se excuse him. “ * * * an unqualified statement that a fact exists, made for the purpose of inducing another to act upon it, implies that the one who makes it knows it to be true and speaks from such knowledge, if the facts represented do not exist, and the person states of his own knowledge that they do, and induces another to act upon his statement, the law imputes to him a fraudulent purpose.” United States Gypsum Co. v. Shields, Tex.Civ.App., 106 S.W. 724, affirmed 101 Tex. 473, 108 S.W. 1165. Accordingly points 8 through 18 are overruled.

Appellant next asserts that the court committed reversible error in refusing to grant judgment for him N.O.V. because “the element of damages was not proven in such a manner as they could be determined by the jury.” The measure of damages is provided in Art. 4004 itself, and is as follows :

“All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract.”

In connection with the questions submitted on actual damages suffered by each ap-pellee the court instructed the jury that by the term “actual damages” is meant the difference between the stock as represented and the actual value of the stock.

The testimony of R. C. Jinkins shown, in. this connection is as follows:

“Q. Well, then, I take it from your testimony that from the beginning he led you to believe that he would sell you the stock for one cent and you, ⅛ turn, would be able to sell it for ten cents ?
“A. Well, yes, sir. He even said, ‘Well, you could see where you couldn’t lose anything because if it was selling for ten cents, if that was the market price, you could always sell it for a nickel, or three or four cents and make your money back.’ ”

Mrs. Smiths’ testimony in that connection is as follows:

“Q. What was his representation as to the ten cents? You were buying it for what?
“A. I was buying it for a penny and he said, though after I bought it, it was naturally — that—that it was ten cents, you see.
“Q. It was just going to be ten cents as soon as you got it?
“A. Uh-huh. Said it was ten cents.”

Mr. Bond testified as follows:

“Q. Did he also make the representation that you could buy that stock for a pennj and sell it for a dime?
“A. Yes, sir; orally and by contract.”

The correct measure of damages under Art. 4004 has been set out by our Supreme Court in Sibley v. Southland Life Ins. Co., supra, and reaffirmed again by our Supreme Court in Reed et al. v. Hester et al., Tex.Com.App., 44 S.W.2d 1107. The averments of the petition, the testimony of the witnesses and the submission by the court follows the statutory measure. Appellant admitted the stock was offered for sale to several companies and there were not any fakers. Other testimony shows it was worthless. It is true the jury did not give the full amount of damages pleaded but we cannot say “the element of damages was not-proven 'in such a manner as they could be determined by the jury.” We do not believe the appellant is in position to complain because the jury gave less damages than the submission and their testimony supported. The point is overruled.

The next point complains of the court permitting counsel for appellees to examine appellant’s testimony while he was a witness by questioning him on testimony made in his deposition taken before the trial. The point is without merit. Rules 186,186a Pocket Parts 1961, V.A.T.R.

In connection with the previous points appellant below asserts reversible error in the conduct of appellees’ counsel, Mr. Linn, throughout the trial. There were many instances of uncalled for exchanges between Mr. Linn and Mr. White while the latter was a witness. Most of them were justified on the part of Mr. Linn because of completely unresponsive answers on the part of appellant and his accusations toward counsel. It was necessary for the trial court to repeatedly warn both of them about sidebar remarks but we find no conduct to warrant a reversible error on the point. All points discussed and all not specifically mentioned are overruled and the judgment of the trial court is in all things affirmed.