author: HIGHTOWER, Chief Justice.

text:
    TEXAS & NEW ORLEANS RAILROAD COMPANY, Appellant, v. E. H. ARNOLD, Appellee.
    No. 6536.
    Court of Civil Appeals of Texas. Beaumont.
    June 25, 1964.
    Rehearing Denied July 22, 1964.

      Baker, Botts, Andrews & Shepherd, Mc-Gregor, Sewell & Junell, Houston,. for appellant.
    Helm, Jones, PI etcher & Winkelman, Houston, Cam Harrell, Conroe, for appel-lee.
   HIGHTOWER, Chief Justice.

This is an action brought for damages under the Federal Employers’ Liability Act. Trial was before a jury, and judgment was for plaintiff upon the answers of the jury to the special issues.

We first pass upon appellee’s motion to strike bills of exception, statement of facts and transcript and to dismiss this appeal. It is contended the record was not filed in this court within the time prescribed by the Rules of Civil Procedure. • The precise point to be passed upon is whether Rule 329-b, Texas Rules of Civil Procedure, was complied with — Paragraph 3 and a part of Paragraph 4 of Rule 329-b read as follows:

“3. All motions and amended motions for new trial müst be determined' within not exceeding forty-five (45). days after the original or amended mo- = tion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically • set out in any such agreement. Any' such day certain shall not be more than ninety (90) days after such original or ■ amended motion is filed.
“4. It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. Such delayed hearing shall not operate to extend the time within which the original or amended motion must be determined, unless such time be extended by agreement as provided for in the, preceding subdivision of this Rule. * * *”

The agreed facts in this case show that the attorneys for appellee and appellant in open court agreed to an extension of time for the court to determine the motion for new trial. The statement of facts reveals the following transpired, Mr. Sewell representing the appellant, and Mr. Jones the appel-lee:

“Mr. Sewell: Is it agreed the Court can sign an order extending the time until next Saturday?
“Mr. Jones: We certainly want to accomodate the Court.
(Discussion off the record.)
“Mr. Sewell: Let the record show that pursuant to agreement of both sides, the Court has extended the time for determination of the motion which was represented this morning to and including Saturday, September the 30th, 1961.”

Appellee argues that this does not comply with the requirements of 329-b that this postponement is not a written agreement and was not filed with the clerk of the court. We hold that the agreement in open court together with the dictation of the agreement to the court reporter is compliance with Rule 329-b. Texas Employers’ Ins. Ass’n v. Martin, 162 Tex. 376, 347 S.W.2d 916, indicates Rule 329-b must be read in the light of the portion of Rule 11, T.R.C.P., which provides for an agreement to be made in open court and be entered of record. The motions are denied.

Relative to appellant’s points of error 1-5, the appellee alleged in his petition that the appellant failed to furnish the appellee a reasonably safe place to do his work and failed to provide suitable equipment and appliances for the work. Appellant specially excepted to these allegations of negligence as being too general, vague and indefinite, which exception was overruled by the trial court.

The jury found in answer to Issues 1 and 3 that appellant failed to' furnish ap-pellee a reasonably safe place in which to do his work, and failed to furnish appellee suitable equipment to stand on in doing the type of work he was doing and that each was a proximate cause of the occurrence made the basis of the suit. The jury found favorably to .appellee on all of the contributory negligence issues, and that the appellee’s fall was not the result of an unavoidable accident.

The appellant complains of the trial court’s action in overruling its special exception to the general pleading of negligence, and in submitting the issues of negligence, and proximate cause in such general manner.

If this had been a common law action for damages, there is no doubt but that appellant would have been correct in its position. But, we are convinced the Supreme Court of the United States would hold the pleadings and the special issues to be sufficient for a suit brought for recovery under the F.E.L.A. It is said in Brown v. Western Ry. Co. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 109:

“Strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws. ‘Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.’ Davis v. Wechsler, supra, 263 U.S. at page 24, 44 S.Ct. at page [13] 14, [68 L.Ed. 145]. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. Should this Court fail to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings, desirable uniformity in adjudication of federally created rights could not be achieved. See Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 [242].” And see Arnold v. Panhandle & S.F. RR. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.

In-view of these and other Supreme Court cases, we are impelled to the conclusions that a plaintiff in a F.E.L. case cannot be required to plead more specifically. Moreover, all that is required by Rules 45 and 47, T.R.C.P., is that the pleadings reasonably apprise the defendant of the grounds upon which plaintiff seeks to recover. We think appellee’s pleadings sufficiently conform to this rule in view of the fact that appellant and its agents were charged with knowledge of the tools and equipment with which appellee was furnished to perform his work. Appellant’s Safety Rule No. 4149, hereinafter more fully alluded to, specifically forbade the use of stepladders in the performance of the type of work appellee was engaged in when injured. The only tools in use at the time of the accident were a wrench and the stepladder. What would further it have availed appellant, who was charged with such knowledge, had appellee specifically plead that such appliances were the tools which were unsuitable to stand on or to perform the work in which he was engaged? Appellant’s contentions are overruled.

In connection with its 6th and 7th points, the court, in its charge to the jury, defined “reasonably safe place to work” and “suitable equipment to stand on” as “such a place and equipment as an ordinarily prudent railroad company would have furnished its employees under the same or similar circumstances.” Objection to these definitions was on the basis that they did not embrace the standard of care of an ordinarily prudent person in the exercise of ordinary care, thus constituting a comment upon the weight of evidence and leading the jury to believe that there was some standard of care imposed upon railroads different from that involved in the standard of care of ordinarily prudent persons.

The points are without merit. 'As stated by appellee in its brief, the court’s charge in such respect is more favorable to appellant than it should have been. It has been consistently held that the standards or customs of a particular enterprise might themselves be negligent because they did not rise to the standard of the ordinarily prudent person. Ordinary care may be something above and beyond the customs and standards ordinarily incident to the organization or a given business. Wé doubt that it can ever be less than the standards of care ordinarily exercised therein. Since the jury was required to measure the conduct of appellant in respect to the railroad industry, it is in no position to complain. If it exercised less care than was exercised by reasonably prudent railroad companies., it was guilty of negligence. That similar instructions have not been found erroneous see Taylor v. White, 212 S.W. 656 (Com.App.1919, judg. adopted) ; Texas Coca-Cola Bottling Co. v. Kubena, 109 S.W.2d 1098 (n.w.h. Civ.App.1937) ; Houston & T. C. R. Co. v. Alexander, 103 Tex. 594, 132 S.W. 119, (1910); San Antonio St. Ry. Co. v. Caillonette, 79 Tex. 341, 15 S.W. 390; (1891).; Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).

Appellant’s 8th point complains of the court submitting special issue No. 3 to the jury, inquiring as to whether defendant failed to furnish plaintiff suitable equipment to stand on. As hereinbefore observed, the court’s charge consisted of only two primary issues inquiring as to the conduct of the defendant. Special issue No. 1' (and the corollary proximate cause special issue No. 2) inquired as to “whether the defendant failed to furnish plaintiff a reasonably safe place in which to do his work.” Special issue No. 3 (and the corollary proximate cause special issue No. 4) inquired as to “whether defendant failed to furnish plaintiff suitable equipment to stand on in doing the type of work he was doing.” Therefore, appellant contends that the submission of special issue No. 3, when considered in connection with the court’s submission of “reasonably safe place to work” in special issues 1 and 2, constituted a dual submission of this theory of appellee’s case, in that in considering special issues 1 and 2 the jury would have, of necessity, considered the question inquired about in special issue No. 3, thus constituting an over-emphasis of this theory of recovery and in such sense constituting a comment upon the weight of the evidence, and would permit the jury to make an affirmative answer to said issue on the basis of the same evidence.

The point is overruled. An employer subject to the Federal Employers’ Liability Act has the duty of providing its employees with a reasonably safe place in which to work and with safe tools and appliances with which to do said work. Ap-pellee had the right to have an inquiry submitted to the jury with respect to a breach of each of these duties. Moreover, appellant has failed to demonstrate that the action of the trial coúr’t resulted in reversible error. T.R.C.P. 434; Tripp v. Watson, Tex.Civ.App., 235 S.W.2d 677.

. Appellant’s 9th point urges error of the cpurt in refusing to declare a mistrial because of the following argument made to the jury by appellee’s counsel;

.“I am going to tell you that you have made up your minds now about this thing, I believe, and I believe that you want to do, everyone of you, just like you said you wanted to do when you got on this jury, that you want to do the right thing, and the only way I can'tell you that you can do the right thing in this case to my way of thinking is to get in there and say, I heard all this stuff read in this answer, all this about what this boy, if he had held it this way it wouldn’t have happened, or if he had held it this way it wouldn’t have happened, or if he got in between it wouldn’t have happened, or which way you decide, whichever you go, and all that business, that’s all these 5 thru 21 are, and their only hope is to get you to answer one or two of these things against the way Cam Harrell says the evidence directs you to answer them. Otherwise, school is out. Do I make myself plain folks? And thank goodness we had the blackboard and can get it back there, 1 thru 4 ‘We do’, and the Foreman, this is important, 5 thru 21 ‘We do not’.” Emphasis added)

At the conclusion of the argument but after the jury had retired, appellant moved the court to declare a mistrial because of the misconduct of counsel for appellee in making such argument in that such argument was made for the deliberate purpose of informing the jury as to the effect of its answers to various special issues.

Although we do not condone all statements contained in such argument, we do not believe that it constituted reversible error. Even if the argument wasn’t proper, its harmful effect could have been cured by appropriate instruction from the trial judge. No such instruction was requested by appellant. Accord: Younger Bros. Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, S.Ct.; Texas & N. O. R. Co. v. McGinnis (Com.App., opin. adopted), 109 S.W.2d 160; Household Furniture Co. v. Storrie, Tex.Civ.App., 292 S.W. 612.

Appellant’s 10th point relates to the refusal of the trial court to instruct the jury to disregard the following argument by Mr. Helm, one of appellee’s attorneys:

“In the first place, I don’t take a case unless I think it is a sound, true, just, honest case, and I don’t have to go out and dig up dirt on the doctors on the other side or some practices of the rail road that I do not like. I don’t believe at tliis stage in my life, after thirty-two years of representing injured people, and I was a pioneer in this law pracfice, when I started out, an injured man couldn’t get a fair trial. They put pressure on every juror through his employer; they put pressure on every witness that came up to the stand and everything else.” (Emphasis added.)

In view of the following colloquy which ■occurred between the court and counsel in the presence and hearing of jury, we do not believe that such argument constituted reversible error and the point is overruled.

“Mr. Sewell: I don’t know what Mr. Helm is talking about, Judge, but there is no evidence in this case—
Mr. Helm: I’m not saying you do it, Ben. The only thing I’m talking about is how it used to be.
Mr. Sewell: We think it is highly improper and we ask that—
The Court: Just a minute.
Mr. Sewell: —the Court instruct the jury to disregard it.
The Court: It is his deductions. Overruled.
Mr. Sewell: Note our exception.
Mr. Helm: I’m certainly not saying that Mr. Sewell would be a party to a thing like that. I am saying that we now have a free courthouse and a free trial system.”

Accord: Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Moncada v. Snyder, 137 Tex. 112, 152 S.W.2d 1077; Brewer v. Dallas Ry. & Terminal Co., Tex.Civ.App., 247 S.W.2d 435; Greeson v. Texas & Pacific Ry. Co., Tex.Civ.App., 310 S.W.2d 615 (writ ref., n. r. e.).

By its 11th point appellant complains of. appellee’s argument to the jury that “ * * * a railroad employee case is in a special group of cases. * * * they are a specialized group of cases that, because of the danger involved in railroad work that [because] railroad employees are subjected to greater than the ordinary worker, our government in its wisdom under the Federal Employers’ Liability ■ Act * if *

This was plainly an improper attempt by appellee’s counsel to instruct the jury as to the law of the case. However, upon appellant’s objection to such effect, the court instructed appellee’s counsel not to go any further into it. Appellant is simply complaining of the unobtained objective of ap-pellee to instruct the jury on a matter of law which, in effect, the trial court prevented. The point is overruled.

By points of error 12-18, as under its points of' error 6 and 7, appellant again attacks the action of the court in submitting, special issues 1 and 3. It urges error of the court in refusing to enter judgment n. o, v„~ in its behalf because there was no finding of primary negligence; because said issues did not constitute a proper submission of negligence and placed a more onerous duty on appellant than required by law; because the definitions in the court’s charge of “reasonably safe place to work” and “suitable equipment to stand on” were not re-phrased to include the consideration of an ordinarily prudent railroad company “in the exercise of ordinary care”; and because said definitions did not include an instruction permitting the jury to consider the conduct of an ordinarily prudent person in the'exercise of ordinary care.

We do not consider these contentions tenable. We pretermit discussion of them except to state that essentially they are the same contentions raised by appellant under its 6th and 7th points hereinbefore disposed of. • ■ ■ -.r-

Relative to appellant’s 19th point of error, the appellee had offered in evidence appellant’s Safety Rule No. 4149, reading -in part as follows: '' '

“Some work, such as washing windows, in buildings can be. best done from stepladders, but before each use be sure to open fully and securely set the spreaders. However, use of stepladders for all locomotive and car work is forbidden.”

Appellee, then proceeded to testify that his superiors had never told him “he ought-en to be violating the Rule 4149”; that the rule was not being enforced and that he was put in the position where he could not keep from violating the rule “because we only had the ladder”. Appellant urges error of the court in refusing to permit the superintendent of its mechanical shops in Houston where appellee was employed to testify to the effect that such rule, to his knowledge, had never been interpreted to forbid the use of stepladders of the type being used by the appellee in connection with doing the type of work which he was doing and that he had never received any complaints from any of his superiors that the use of this type of ladder for such work constituted a violation of said rules. It specifically urges that said rule was ambiguous in that it could be interpreted to mean that stepladders must not be used for any work on locomotives or that it could mean that stepladders may be used for some, but not for all work on locomotives. :

We are of the opinion that the court correctly sustained the objection to such testimony that “The rule is plain and speaks for itself.” We hold that said rule does not admit of' construction or interpretation and that in'the light of the record before us, the excluded testimony was immaterial and irrelevant. The point is overruled.

By its 20th point appellant complains of the court’s refusal to grant a new trial, because the award of damages in the amount of $90,000.00 was so grossly excessive as to indicate mistake, bias, prejudice or other improper motive

There is voluminous testimony from experts as to the extent and duration of appel-lee’s injuries and the pain and mental anguish suffered. As usual, this testimony is conflicting. Viewing such evidence in the light most favorable to the verdict, we cannot say that the damage award- was excessive. All the testimony simply presented a question of fact for the jury to resolve. We might add that on the date of appellee’s injury he was 27 years of age.with a life expectancy of 40.36 years, drawing wages of approximately $450.00 a month for a 40 hour week. Of course, we have considered the extensive testimony concerning appel-lee’s pain and suffering. The point is overruled.

By its 21st and 22nd points,. appellant urges that there was no evidence to support the jury’s findings to special issues 1-4 (failure to provide reasonably safe place to work and suitable equipment to stand on) and that the jury findings exonerating ap-pellee from any contributory negligence are without support in the evidence or are contrary to the overwhelming weight and preponderance of the evidence. Appellant recognizes the generality of these last, two points of error, as do we.

There is extensive evidence in the record which supports the jury’s answers to special issues 1-4 which would unduly extend this opinion by setting it out. In regard to appellant’s “no evidence” point relative to special issues 1-4, we have hereinbefore, in treating appellant’s 19th point of error, set out and alluded to the introduction by ap-pellee of appellant’s Safety Rule No. 4149. The violation of this rule vel non was a matter for the jury’s determination. They could have determined that there was indeed a violation by appellant’s failure to furnish equipment other than a stepladder for appellee to stand on in doing his work, such as a platform. Such violation alone would be probative evidence to support the special issues relative thereto. There was ample evidence to support the jury’s findings both as to those issues and contributory negligence, and other evidence in the record does not preponderate to the contrary. Moreover, if appellant’s acts or omissions contributed in any degree to appellee’s injuries, it is immaterial if appellee’s acts or omissions may have contributed to some extent to his injuries. Rogers ,v. Missouri Pacific RR. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

Though appellant has assigned no specific point of error to the effect that the cumulative errors of the trial court caused the rendition of an improper judgment in the case, the tenor of its contentions in its brief as a whole indicates that it is of the opinion. Such contentions are overruled.

Judgment affirmed.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    Walter GRABES, d/b/a Continental Machinery Co., Appellant, v. REINHARD BOHLE MACHINE TOOLS, INC., Appellee.
    No. 67.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1964.
    Rehearing Denied Aug. 20, 1964.

      Ernest S. Fellbaum of Swift, Fellbaum, Gettle, Matthews & Malant, Houston, for appellant.
    E. P. Dee of Dee & Foster, Houston, for appellee.
   GREEN, Chief Justice.

Appellee filed suit on a sworn account against V. Worley and Walter Grabes, individually, and doing business as Continental Machinery Company. Defendant V. Worley filed a sworn denial of the account. Defendant Grabes, appellant here, answered by sworn denial (1) of the account, (2) that he was liable in the capacity in which he was sued, and (3) that he ever did business as Continental Machinery Company. Other pleadings, including a third party cross-action, are in the record, but in view of the verdict, the judgment, and the points raised on this appeal, they become unimportant so far as a discussion of them in this opinion is concerned.

Appellee predicated its suit on several alleged sales to Continental Machinery Company as itemized in Exhibit A of its petition. The sale upon which j'udgment against appellant was based was of one “Bohle-Model FU-20, Serial No. 20014, Universal Milling Machine”. The purchase price of the machine, after discount, together with extra equipment later furnished, was shown to be $19,244.00. The date of sale was alleged as October 6, 1958.

At the conclusion of the evidence, defendant V. Worley, individually and d/b/a Continental Machinery Company, was, by agreement, dismissed with prejudice, and the third party cross-action was dropped. When the case was submitted to the jury for verdict, the only parties remaining were appellee as plaintiff and Walter Grabes, individually and d/b/a Continental Machinery Company, as defendant. Based on the jury verdict, judgment was rendered for appellee against appellant Walter Grabes, doing business as Continental Machinery Company, for the sum of $10,500.00 debt, plus an attorney’s fee of $5,000.00. We affirm the judgment.

Appellant’s attorney on this appeal did not participate in the trial of this case.

In his First and Third Points, appellant presents his contention that the answers to Special Issues Nos. I and II are in direct conflict and cannot be reconciled, and that since the judgment is necessarily based on the answer to Issue No. II, the court erred in receiving such verdict, and further erred in rendering judgment based on such conflicting answers. In his Second Point, appellant states that the court erred in overruling his objections to Issues I and II as being duplicitous and as asking for findings on the same ultimate issue of fact in different forms.

We shall first dispose of his Second Point. The transcript contains no objections to the court’s charge, and contains no instrument evidencing any ruling by the trial court on any objections.

Rule 272, Texas Rules of Civil Procedure, provides:

“ * * * The requirement that the objections to the court’s charge shall be in writing will be sufficiently complied with if such objections are die-fated to the court reporter in the presence of and with the consent of the ■court and opposing counsel, before the reading of the court’s charge to the jury, and are subsequently transcribed ■and the court’s ruling and official signature endorsed thereon and filed with the -clerk in time to be included in the transcript. * * * ”

The statement of facts contains •some objections to the charge dictated by appellant’s attorney to the court reporter in the presence of the trial court after the ■close of the evidence and prior to the reading of the charge to the jury. Except as ■contained in the statement of facts, which ■was not signed by the trial judge, the objections as dictated were not transcribed, the ■court’s ruling and official signature were not endorsed thereon, and they were not filed with the clerk or included in the transcript. The reporter’s notes do not show that the trial court ruled on any objections to Issues Nos. I and II. Under these circumstances, the mandatory provisions of Rule 272 permitting counsel to dictate their objections to the charge and to preserve their exceptions by doing the things re•quired by said rule were not complied with, and we shall consider the charge of the •court as though no objections were filed. Gale v. Spriggs, Tex.Civ.App., 1961, 346 S.W.2d 620, writ ref. n. r. e. ; Cannon v. Canida, Tex.Civ.App., 1959, 321 S.W.2d 631, writ ref. n. r. e.; Texas General Indemnity Co. v. McNeill, 1953, 261 S.W.2d 378, n. w. h.; Ramsey v. Polk County, Tex.Civ.App., 1953, 256 S.W.2d 425, n. w. h.

Special Issues Nos. I and II of the court’s charge, together with the jury’s answers thereto, read as follows:

“SPECIAL ISSUE NO. I.
Do you find from a preponderance of the evidence that plaintiff, Reinhard Bohle Machine Tools, Inc., on the date in question, sold to Walter Grabes, in■dividually, the FU 20 Serial No. 20014 Machine in question?
“Answer: ‘We do not’.”
"SPECIAL ISSUE NO. II.
“Do you find from a preponderance of the evidence that Plaintiff, Reinhard Bohle Machine Tools, Inc., on the date in question, sold to Walter Grabes, doing business as Continental Machinery Company, the FU 20 Serial No. 20014 Machine in question?
“You are instructed that ‘doing business’ requires more than merely working as an employee or salesman for another party, but requires some business dealing for yourself or on one’s own behalf in the conducting or transacting for your own behalf, and not merely an employee or on behalf of another.
“Answer: ‘We do’.”

■ It is appellant’s contention, in Points 1 and 3 that the judgment should be reversed •because the answers of the'jury to Issues Nos. I and II are in such conflict as to be fatal to the verdict. In support of his argument, appellant relies upon the test as to conflicting answers as stated by our Supreme Court in Pearson v. Doherty, 1944, 143 Tex. 54, 183 S.W.2d 453, and later restated in Little Rock Furniture Mfg. Co. v. Dunn, 1949, 148 Tex. 197, 222 S.W.2d 985. We quote from the latter opinion as follows:

“ ‘The test in such [a] case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.’ * * *
“To apply this test, the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must he able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered. * * * ”

In the present case, appellant was sued in two capacities, i. e. Walter Grabes, individually, andWalter Grabes, doing business as Continental Machinery Company. The trial court must have decided that there was testimony to support a finding either way; otherwise, he should not have submitted both issues. If these issues were subject to objection as to form or otherwise, such obj ection was waived by the failure of appellant to properly carry forward any objection which he might have made. Rule 272, T.R.C.P.; Texas Employers Insurance Ass’n v. Neuman, Sup.Ct., 1964, 379 S.W.2d 295.

After the jury answered the first issue “No”, meaning that they did not find from a preponderance of the evidence that appellee sold the machine to Walter Grabes, individually, such answer together with the answers given to the remaining issues, excluding the answer to Issue No. II, did not require judgment for appellant. The trial court had submitted an alternate ground of recovery—to-wit, Issue No. II, which inquired what was to the jurors, who were properly not concerned with the legal aspects of the issues, a'different question entirely, viz, did they find from a preponderance of the evidence that appellee sold the machine to Walter Grabes doing business as Continental Machinery Company. Surely, considering the definition of the term “doing business as” in Issue No. II, and the fact that the jury was not passing upon issues of law, or of liability as a legal proposition, but were deciding fact issues as plead in the pleadings and raised in the testimony, the answers' to these two issues can be reconciled.

“[Cjourts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled.” Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, citing Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97; Texas Indemnity Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, and other authorities.
“It is the duty of the trial court to reconcile apparent conflicts in the jury’s findings if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole.” Ford v. Carpenter, 1949, 147 Tex. 447, 216 S.W.2d 558, 562.

Appellant’s Points 1, 2 and 3 are overruled.

In his Fourth, Fifth and Sixth Points, appellant submits that the trial court erred in rendering the judgment against him because (4) there is no evidence of probative value to support the affirmative answer to Issue No. II; (5) the evidence is so overwhelmingly against such answer as to shock the conscience, and demonstrates that such conclusion of the jury was wrong, and reached only as a result of passion, prejudice, or improper motive; and (6) the great weight and overwhelming preponderance of the evidence is contrary to such finding. In determining whether the verdict is contrary to the overwhelming preponderance of the evidence, we shall consider all of the testimony, including that which supports and that which is contrary to the jury’s answer. Fisher Construction Co. v. Riggs, 1959, 160 Tex. 23, 325 S.W.2d 126.

It is undisputed that by purchase order of September 24, 1958, an unincorporated concern doing business under the trade name of Continental Machinery Company with office in Houston, Texas, ordered from ap-pellee the Bohle-Model FU-20 Milling Machine in question, directing that it be sent to Lake Tool & Supply Company at Liberty, Texas. It is not contested that Lake Tool received this machine. There is ample evidence that Lake Tool has paid Continental the full purchase price, and that Continental has paid appellee $7,937.00, for which credit was duly given.

It is appellant’s contention, and he ■so testified by oral deposition, that he had no proprietary interest in Continental Machinery Company and that his sole connection with this transaction was in the capacity of salesman, selling on commission. In his brief he cites the fact that in all correspondence between appellee and Continental .and its predecessor, American Tool Engineering, concerning this and other transactions, Continental and American Tool letters and orders were signed with the name “V. Worley” and that all of appel-lee’s letters to American Tool and Continental were directed to “V. Worley”. A ■certificate of ownership under the Assumed Name statute, filed in the office of the County Clerk of Harris County on April 29, 1958, was in evidence. This certificate showed “V. Worley” as the owner of Continental Machinery Company. The checks of Continental in partial payment of the account were signed by V. Worley. Appellant contends that there is no evidence to justify a jury finding that in connection with the transaction in question he was doing business as Continental Machinery Company. He further argues that in all events, such finding was against the overwhelming weight of the evidence.

Appellee takes the view that from a preponderance of the evidence, the jury was justified in concluding that Walter Grabes was the controlling force of the company and that he managed, ran, and controlled ‘Continental’s business. Appellee further contends that “V. Worley” was the maiden name of Grabes wife, and that Grabes was in fact doing business as Continental Machinery Company. In this connection, it is interesting to note that Grabes and V. Wor-ley, though filing separate answers, were ■each represented by the same attorney and that neither appeared in person in court •during the trial.

In February, 1958, American Tool Engineering, with office at Bellaire, Harris County, Texas, wrote Bohle, in Germany, asking for information concerning a Texas dealership for their Bohle milling machines. This letter, bearing the signature “V. Worley”, was referred to Fred G. Kramer, appellee’s manager, at its office in Denver, Colorado. After further correspondence, Kramer and Walter Grabes met in Fort Worth, apparently prior to May 5, 1958. Kramer testified that the purpose of this meeting was “to consummate the arrangements for shipments, and also at the same time requesting permission for me that the name of the company would possibly be changed from American Tool, or whatever it was, to Continental Machinery.”

Kramer testified that at this meeting in Fort Worth, Grabes was accompanied by a woman and a teenage boy whom he introduced as his wife Vi, and his son. A word description of V. Worley was in evidence, and Kramer testified such was a description of the woman whom Grabes introduced as his wife. Shortly thereafter, Kramer, in Denver, received a letter written on American Tool letterhead, dated May 5, 1958, signed “V. Worley”, ordering sales cata-logues and mail literature, and containing the following:

“We are going to call our company ‘Continental Machinery Co.’ * * *. We certainly enjoyed the visit with you in Fort Worth and hope you can visit us in Houston soon * * * ”
Kramer further testified:
“Q. Now, thereafter, did you meet the same party who signs her name as V. Worley and was introduced as Mrs. Vi Grabes to you in Fort Worth — did you meet them some place else ?
“A. Yes. They were guests in my home.
“Q. And where was that, please?
“A. Denver, Colorado.
“Q. And how long were they there?
“A. One day.
“Q. Were they the same three people —the son, Grabes, and his wife?
“A. Yes, sir.
“Q. And that was the same party that wrote you this letter of appreciation, telling you that they enjoyed the visit in Fort Worth with you?
“A. I was quite chagrined to see that signature, ‘V. Worley’.
“Q. And you are positive of the identification ?
“A. Yes, sir.”

A fact issue was raised in the evidence by comparison with known signatures of the defendant V. Worley as to whether the letters bearing that name were actually signed by her. Known standards of the signatures of both defendants were admitted in evidence so that the jury could make such comparisons.

Grabes, on his oral deposition, was asked whether his co-defendant V. Worley was or had been his wife, but he managed to avoid making a direct answer. He did not deny it.

Kramer testified that all of his dealings in connection with the sale of this machine were with Grabes.

“Q. I don’t know that I have asked you this question, but have you dealt with anybody with reference to these sales, other than Walter W. Grabes?
“A. Mr. Grabes was the one that I definitely dealt with at all times. * *
“Q. What did he tell you about it when he selected it and ordered it?
“A. That that was the piece of equipment he wanted, and he was going to send a truck out to Pittsburg and he wanted me to be in Pittsburg when that machine would be loaded. * * * ”

Other evidence, pro and con, on this issue is contained in the statement of facts, to which we have given thorough study. After careful consideration, we have reached the conclusion not only that there is evidence of probative value to support the answer of the jury to Issue No. II, but also that such answer is not against the great weight and overwhelming preponderance of the evidence. Appellant’s Points 4, 5 and 6 are overruled.

Appellant’s Seventh Point states that the court erred in admitting Exhibits 20 and 21 in evidence over appellant’s objections, since under the provisions of Article 3737e, Revised Civil Statutes of Texas, such exhibits were inadmissible.

According to Fred G. Kramer, general manager of appellee’s Denver office in 1958, these exhibits were original ledger sheets taken from the Denver office, kept in the usual and regular course of business and in the regular manner, by a bookkeeper (a C.P.A.) acting under Kramer’s general supervision. Kramer stated that he was familiar with these exhibits. Exhibit 20 reflected appellee’s account with Continental Machinery Company on the sale of the FU milling machine, giving the date of each entry, and after allowing credit for payments, showed a balance due of $10,646.00. Exhibit 21 is similar to Exhibit 20, except that it refers to another transaction between appellee and Continental which was disposed of favorably to appellant in the court’s judgment, and is not involved in this appeal.

The witness Kreft, who succeeded Kramer as appellees’ manager in 1960, testified that he is presently custodian of and in complete control of appellee’s records and books in the Denver office. He testified without objection that Exhibits 20 and 21 were correct book records of his company.

We find that a sufficient predicate was laid for the introduction of these ledger sheets as original records made in the regular course of business and overrule appellants’ Seventh Point. Art. 3737e, V.A.T.S.; Daggett v. Neiman-Marcus Company, Tex.Civ.App., 1961, 348 S.W.2d 796, n. w. h.

Appellant’s Eighth point reads as follows:

“The court erred in overruling appellant’s objections to questions propounded to his attorney of record concerning privileged and confidential matters arising out of a previously existing attorney-client relationship, involving irrelevant and immaterial facts as far as the issues were concerned, but which were nevertheless prejudicial to appellant’s position.”

The attorney who represented appellant in the trial court was placed on the witness stand and questioned at length (28 pages of the Statement of Facts) by appellee’s counsel. He freely and without objection gave description of his client V. Worley, who made no personal appearance in court. Again without objection, he at some length made comparisons between known signatures of the defendants and the signatures on the correspondence in evidence. To some of the questions asked him, he objected on the ground of privilege, and in every instance except one, his objection was sustained. He was asked if he knew whether V. Worley is the maiden name of the wife of Walter Grabes. His objection that the question involved a privileged matter between him and his client was overruled. He, thereupon, answered that he did not know.

Thereafter, at.a later stage of the testimony, he stated, without objection, that he did not know of his own knowledge if they (Grabes and V. Worley) are still married.

Appellant has cited no authority in support of his contention. We have given this point our careful study and consideration and find no error calling for a reversal of the judgment.

By his Ninth, Tenth and Eleventh points, appellant submits that the trial court erred (9) in overruling appellant’s motion for instructed verdict; (10) in overruling his motion for a mistrial; and (11) in overruling his motion non obstante veredicto. These points do not raise any matters which have not been discussed and disposed of. They are all overruled.

Judgment affirmed.


author: COLLINGS, Justice.

text:
    CITY OF CARROLLTON et al., Appellants, v. The SOUTHWESTERN STATES TELEPHONE COMPANY, Appellee.
    No. 3883.
    Court of Civil Appeals of Texas. Eastland.
    July 17, 1964.
    Rehearing Denied Aug. 14, 1964.

      Saner, Jack, Sallinger & Nichols, R. L. Dillard, Jr., Dallas, for appellants.
    J: Edward Johnson, Brownwood, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   COLLINGS, Justice.

The City of Carrollton brought suit for a temporary injunction against The Southwestern States Telephone Company, seeking to enjoin the defendant from putting into effect new and increased telephone rates for certain classes of service without first submitting for approval or obtaining the approval and authorization of the City Council of plaintiff city for such a rate increase.. The defendant telephone company filed an answer alleging that it had the right and power to place into effect the increase in rates for optional service between Carrollton and the City of Dallas and in the alternative defendant by way of cross action sought a temporary injunction restraining the City of Carrollton from interfering with its efforts to institute such a rate increase.

The trial was before the court without a jury. The court overruled the plaintiffs’ plea in abatement to the cross action of the telephone company, dissolved the temporary restraining order which had been granted to the city without notice, and refused the application of the city for a temporary injunction, holding as a matter of law that the City of Carrollton had no jurisdiction over the Dallas service. The court also temporarily enjoined the City of Carrollton from interfering with the defendant telephone company in promulgating and collecting reasonable rates for the Dallas service. Such temporary injunction was conditioned upon the filing by the defendant of a refunding bond for the protection of telephone subscribers within the city in the amount of $125,000.00. The judgment did not enjoin plaintiff city from enforcing its rate ordinance insofar as local service was concerned. The City of Carrollton and the members of its City Council have appealed.

Appellants present points contending (1) that the court erred in denying the request of the City of Carrollton for a temporary injunction restraining appellee telephone company from putting into effect an increase in rates without first complying with the requirements of the Charter of the City and in violation of the ordinances of the city (2) erred in overruling appellants’ plea in abatement to the cross action filed by appellee telephone company because the company had not exhausted its administrative remedy by first presenting the proposed rate increase to the City Council as required by the City’s Home Rule Charter (3) erred in granting the telephone company a temporary injunction because (a) same was not authorized under the law or evidence and there was no evidence of a reasonable probability that the telephone company will succeed upon final hearing, (b) because the undisputed evidence showed that the telephone company agreed that the rates in Car-rollton for “Dallas Service” would be the same as the rates for “Dallas Service” furnished to the City of Irving, and the rates sought to be put into effect for such service are in excess of the rates charged in Irving for the same service, (c) because such temporary injunction was not authorized by the pleadings, (4) and that the court erred in holding that appellee telephone company will suffer irreparable injuries if its petition for a temporary injunction should be denied.

The record shows that on October 20, 1959, the City Council of the City of Car-rollton granted to The Southwestern States Telephone Company a franchise which was accepted by the telephone company. The franchise authorized appellee telephone company to operate within the limits of appellant city and by its terms was to run until October 1, 1984, a period of twenty-five years. The franchise provided that the telephone company was authorized to charge reasonable rates for services furnished under the franchise subject to regulation by the city. The franchise recited that the city and the telephone company had entered into a written agreement on the same date as the franchise ordinance and that such agreement was made a part of the franchise ordinance for all purposes. The agreement referred to in the franchise ordinance stated that the city had granted the telephone company the right to put into effect certain monthly charges for telephone service between the subscribers within the City of Carrollton and subscribers in Farmers Branch, Ren-ner, Addison and the City of Dallas. The agreement provided that the rates to be charged for the “Dallas Service” would be the rates set forth in the rate ordinance. The agreement further provided that the rates being charged for the “Dallas Service” in the rate ordinance were identical with the rates charged for similar service in the City of Irving and that it was the purpose and intention to establish the rates in force and effect from time to time similar to charges for such telephone service in the City of Irving. It further provided that it was the intention of the parties that the agreement, franchise ordinance and rate ordinance'should be considered together as one instrument.

On October 20, 1959, appellant city adopted a rate ordinance fixing the rate authorized to be charged by the telephone company for the various types of service furnished. Such rate ordinance fixed “Dallas Service” rates for business one party at $16.00 per month and residence one party at $6.00 per m'onth. This rate ordinance has never been repealed, amended or modified by the City .Council.

On September 24, 1963, the telephone company by letter notified its subscribers in appellant city that as of October 1st, .1963, the extended .area telephone service from Car-rollton to Dallas central zone was being increased from $6.00 and $16.00 per month rcspectively.to $10.00 and $20.00.respectively for one party residence and one party business service. The telephone company at no time submitted to the City Council of appellant city an application to increase its “Dallas Service” rates for one party residence from $6.00 to $10.00 per month or one party business from $16.00 to $20.00 per month. The telephone company had submitted an application to appellants’ City Council to increase one party business to $23.00 per month and one party residence to $13.00 'per month which was denied by the Council. The telephone 'company made no application for rehearing for such increase in rates.

Article 1119, Vernon’s Ann.Tex.Civ.St. provides:

“The governing body of all incorporated cities and towns in this State incorporated under the General Laws thereof shall have the power to regulate, by ordinance, the rates and compensation to be charged by all persons, companies, or corporations using the streets and public grounds of said city or town, and engaged in furnishing water, gas, telephone, light, power, or sewage service to the public, and also to prescribe rules and regulations under which such commodities shall be furnished, and service rendered, and to fix penalties to enforce such charges, rules, and regula-' tions.”
Article 1124, V.A.T.C.S., provides:
“Any city having a special charter . or a charter adopted or amended under the provisions of chapter 13 of this title,- and having authority under its charter to determine, fix and regulate the ' charges, fares or rates of compensation to be charged'by any person, firm or corporation enjoying a franchise'in said city, shall in determining, fixing and regulating such charges, fares or rates of compensation, base the same upon the fair value of the property of such person, firm or corporation devoted to furnishing service to such city, or the inhabitants thereof * *

Article 1175, V.A.T.C.S., authorizes the City:

“To prohibit the use of any street, alley, highway or grounds of the city by any telegraph, telephone, electric light, street railway, interurban railway, steam railway, gas company, or any other character of public utility without first obtaining the consent of -the governing authorities expressed by ordinance and upon paying such compensation as may be prescribed and upon such condition as may be provided by any such ordinance. To determine, fix and regulate the charges, fares or rates of any person, firm or corporation enjoying or that may enjoy the franchise or exercising any other public privilege in said city and to prescribe the kind of service to be furnished by such person, firm or corporation, and the manner in which it shall be rendered, and from time to time alter or change such rules, regulations and compensation; * * * In order to ascertain all facts necessary for a proper understanding of what is or should be a reasonable rate or regulation, the governing authority shall have full power to inspect the books and compel the attendance of witnesses for such purpose.”

On September 19, 1961, the City of Car-rollton adopted a Home Rule Charter.

Section 8.11 of the Home Rule Charter of the City of Carrollton provides in part as follows, to-wit:

"The council shall have full power, after due notice of hearing, to regulate by ordinance the rates and service of every public utility operating in the City of Carrollton, and in this connection Article 1119 to 1124a, both articles inclusive,, of the 1925 Revised Statutes of the State of Texas, as now or hereafter amended, are adopted as a part of this •charter, except that if any of said'arti■cles or any provisions thereof be in conflict with any other provision or provisions of this charter, the said provision or provisions of this charter shall take precedence.”

Section 8.12 of the Home Rule Charter of the City of Carrollton provides as follows, .to-wit:

“No person or corporation enjoying any franchise to operate a public utility within the City of Carrollton shall ever make any change or fix any rate for public service to its patrons or the inhabitants of the City of Carrollton without first being authorized by the Gov- • erning Body of the City by an ordinance or order approving the same, and no public utility shall contest any rate or change or order fixed by the Governing Body of the City under the authority otherwise conferred in the Charter of the City in any suit or cause of action in any court until after such utility has filed a motion for a rehearing with the • Governing Body of the City specifically setting out the grounds of complaint .against any such order or ordinance, , fixing any rate or charge and until the - Governing Body of the City shall have ■ passed upon the said motion for rehear:ing.”

' The court did not err in denying '.the request of appellant City of Carrollton for a temporary injunction and in overrul•ing appellants’ plea in abatement to appel-lee’s petition for a temporary injunction. It' is held by the courts of this state that, under present statutes, rates for intrastate service such as the “Dallas Service” which is here involved, is not within the jurisdiction of cities and that cities therefore have no power to regulate rates for such service. See City of Weslaco v. General Telephone Company of The Southwest, Tex.Civ.App., 359 S.W.2d 260, (Ref. N.R.E.) and cases cited therein. Thus, a public utility having a franchise to operate its business and render service within a city is not required to obtain permission of such, a city to increase rates for intrastate service or to exhaust the administrative remedies provided under the city charter concerning rate questions which involve purely local service before placing increased intrastate rates into effect.

Appellant particularly relies upon Sections 8.11 and 8.12 of its Home Rule Charter, contending that the telephone company is not entitled to an injunction as a matter of law because it is attempting to place into effect a new and increased rate for services rendered to the inhabitants of a city without complying with the requirements of said charter provisions by exhausting the administrative remedies therein provided. We cannot agree with this contention. A careful examination of the charter provisions relied upon shows that they, like the statutes, do not grant the city the right to regulate intrastate rates or require a public utility to exhaust administrative remedies before the City Commission before increasing such intrastate rates. Said charter provisions apply only to local service.

We also overrule appellants’ contention that the court erred in not granting the City of Carrollton a temporary injunction so as to maintain the status quo during the pendency of this suit. In this connection appellants contend that the status quo to be preserved was the rate ordinance of October 20, 1959. It is well settled that the status quo to be preserved in such cases is that status which does not deprive appellee of its property without due process of law. City of Houston v. Southwestern Bell Telephone Company, Tex.Civ.App., 263 S.W.2d 169, (Writ Ref.) ; General Telephone Company of the Southwest v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385.

In the case of the City of Baytown v. General Telephone Company of Southwest, Tex.Civ.App., 256 S.W.2d 187, 194 (Ref. N.R.E.), it was stated that

“ * * * a temporary injunction will issue when three things are made to appear: (1) that there is a reasonable probability that the utility will succeed on final hearing, (2) that the loss to the utility resulting from a refusal to grant the temporary injunction will be irreparable, and (3) that the customers can be adequately protected by bond.”

Also see City of Baytown v. General Telephone Company of the Southwest, Tex.Civ.App., 256 S.W.2d 187; General Telephone Company of the Southwest v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385. Appellant urges points contending that in the instant case there was no evidence of a reasonable probability that the telephone company will succeed on a final hearing, and no evidence that the telephone company will suffer irreparable injuries if its petition for a temporary injunction is denied. The effect of appellant’s contention in regard to the probability that the telephone company may recover upon a final hearing is a contention that because the evidence is undisputed that the telephone company has not exhausted its administrative remedy before the city commission prior to filing this suit, and because the exhausting of such administrative remedy is a prerequisite to its right to bring such a suit, there is no probability that the telephone company will succeed upon a final hearing. This contention is not well taken. The temporary injunction obtained by the telephone company only enjoined the city from interfering with the telephone company in promulgating rates and charges for the Dallas service, which is intrastate service. The temporary injunction did not enjoin the city in its regulation of purely local service. As heretofore indicated, under present statutory and case law in Texas, there is no duty on the part of a telephone company to exhaust any administrative remedy before a city commission prior to promulgating rates for long distance or intrastate service. The fact that the telephone company did not exhaust administrative remedies required in rate cases involving purely local service does not preclude a reasonable probability that it will succeed on a final hearing of this case which involves intrastate rates.

Generally speaking, the right to prescribe rates for telephone service belongs primarily to the company furnishing such service subject to the power of the state to regulate same through some duly authorized agency. The right to regulate intrastate rates has not been delegated by the state to appellant city, either by statute or by its charter. However, the right of the telephone company to prescribe such rates is subject also to the requirement that the rates be reasonable. 86 C.J.S. Telegraphs, Telephones, Radio, and Television p. 102. The telephone company contends that the changed rates prescribed by it are reasonable and are necessary for it to earn a fair return on its investment and that the court properly granted its temporary injunction because a continuation of the old rates would cause it irreparable injury. In our opinion, appellee’s contention in this respect is well taken. The sworn pleadings of ap-pellee telephone company show that its operation in providing the Dallas service is at a loss; that to provide the Dallas service to subscribers in the City of Carrollton it became necessary for appellee to enter into an agreement with Southwestern Bell Telephone Company which operated the local exchange in Dallas and to pay to said company monthly compensation for the furnishing of its facilities in providing such extended area service; that to provide the Dallas service to subscribers in the City of Carrollton at the rate of $6.00 per month, which is the rate that appellant seeks to maintain, appellee has been required to and has agreed to pay Southwestern Bell Telephone Company the sum of $5.45 per month; that the charges being paid Bell Telephone Company for providing such extended- area service- is reasonable and that it was and is necessary for appellee to enter into such an agreement with Bell Telephone Company and that such charges be paid to it before appellee can render such extended area telephone service to subscribers in the City of Carrollton; that appellant City of Carrollton at the time it enacted and promulgated the 1959 rate ordinance had full knowledge of the fact that appellee could not render such Dallas service without utilizing the facilities of the Bell Telephone Company. Appellee telephone company further stated under oath that the compensation being paid Bell Telephone Company for providing the Dallas service was the lowest and best compensation which it had been able to negotiate with Bell Telephone Company for such service and was a reasonable and necessary charge and constituted an integral part of appellee’s cost in providing the Dallas service to its subscribers in the City of Carrollton. Appellant has not by sworn pleadings or other-wisé denied appellee’s sworn pleading that it is'furnishing the Dallas service at a loss, and the court was justified in accepting that fact as true. McAmis v. Gulf, Colorado & Santa Fe Railway Company, 184 S.W. 331, (Writ Ref.); Rule 686, Texas Rules of Civil Procedure. Appellant’s contention that there is no showing that the telephone company would suffer irreparable injuries unless its request for .a temporary injunction is granted is therefore not well taken. Under these circumstances we are of the opinion that the court did not abuse its discretion in granting appellee the temporary injunction complained of.

We next consider appellant’s contention that the temporary injunction was improperly granted because the telephone company agreed that the rates in Carrollton for Dallas service would be the same as the rates for Dallas service furnished to the City of Irving, and that the rates sought to be put into effect by appellee for such service are in excess of the rates charged in Irving for the same service. The agreement between appellant City of Carrollton and appellee telephone company did make the Irving' rates a standard or guide to be used in determining the rates to be charged Carrollton subscribers for the Dallas service, but did not constitute an unconditional obligation on the part of the telephone company to make the Irving rates the Car-rollton rates. The agreement also provided that nothing contained therein or in the rate and franchise ordinance should be construed to limit or modify in any manner “the right of Telephone Company to a fair return on the fair value of its property devoted to furnishing local exchange telephone service in the Carrollton, Texas, telephone exchange, and either of said parties may at any time that they feel that they have just cause therefor be at liberty to exercise such rights as given and granted unto them by the law of this State.” Ap-pellee, under ■ the contract, then has the right to take such action under the laws of this state as are necessary to enable it to earn a fair return upon the fair value of its property. The agreement, in our opinion, does not prevent the court from granting the temporary injunction complained of.

Appellant, further complains that the court erred in granting appellee telephone company a temporary injunction because same was. not authorized by appel-lee’s pleadings; that appellee sought a temporary injunction as an alternative plea and only under specified circumstances which never came to pass, that is, that the court should find that the telephone company “did not have the right and power to place into effect the increased rates” in question. The court had already denied the request of the city for a temporary injunction against the telephone company. Since the issues involved were substantially the same and had already been decided in favor of appellee in determining that appellant was not entitled to a temporary injunction, we cannot see how appellant could be damaged by the granting of appellee’s temporary injunction, particularly in view of the fact that the court required appellee to file a refunding bond for the protection of telephone users in the City of Carrollton. This action of the court was without doubt an áde-quate protection of appellant’s rights. The error, if any, was harmless. Actually what the court did was to preserve the status quo and to thus protect the rights of all parties pending final hearing.

The judgment is in all things affirmed.


author: HUGHES, Justice.

text:
    Thomas D. MOORMAN, Administrator of the Estate of Helen Mar Hunnicutt, Deceased, et al., Appellants, v. AUSTIN NATIONAL BANK, Independent Executor of the Will of Hicklin P. Hunnicutt, Deceased, et al., Appellees.
    No. 11225.
    Court of Civil Appeals of Texas. Austin.
    July 29, 1964.
    Rehearing Denied Aug. 19, 1964.
    R. C. Wilson, Cofer, Cofer & Hearne, Austin, for appellants.
    Graves, Dougherty, Gee & Hearon, William L. Garwood, Alvis & Carssow, Powell, Rauhut, McGinnis & Lochridge, R. Harry Akin, J. H. Crook, Austin, for appellees.
   HUGHES, Justice.

This controversy is between beneficiaries under the will of Hicklin P. Hunnicutt, and their successors in interest, and principally concerns the disposition to be made of 1000 acres of land in Dimmit County owned by the testator at the time of his death.

Hicklin Prescott Hunnicutt died in Austin, Travis County, Texas, April 16, 1953. He left a holographic will dated’ January 5, 1944, and a holographic codicil dated March 15, 1-948; This will and codicil were ■duly psróbated in Travis. County. May 26, 1953, arid, as authorized by the will, • the Austin National Bank qualified as ■ Independent-Executor of his-estate.

Under’ this will the testator left- to his 'half brother, Thomas B. Clark, the sum •of $5000.00 or so much of that amount as might be realized from the sale of certain bonds. Also bequeathed to Mr. Clark were two gold watches, personal effects and a ■city lot in Stanford, Texas.

The testator devised and bequeathed to Helen Mar Hunnicutt, described in his will as “my adopted daughter,” his one half interest in his present house in Austin, Texas, and all appurtenances “standing thereon” and all household effects therein. Testator also bequeathed to Helen Mar Hunnicutt all the shares of the capital stock of the Austin National Bank which he owned at the time of his death; also one H. O. L. C. Bond in the sum of $1000.00.

The inventory filed in testator’s estate •reflects that he owned 200 shares of capital stock in the Austin National Bank and that its value was $18,000.00. The value of the one half interest in the home place is shown by the inventory to be $10,000.00. The H. O. L. C. Bond, referred to in the will is not listed in the inventory.

Item 5 “and Proviso relative to item 5” of the will and the codicil form the basis for this controversy and will be set forth in full. Before doing so, however, reference is made to Item 6 of the will in which it is stated that “the foregoing five items of this written will dispose of all of my estate except three small pieces of property which are not therein appropriated.” After describing such property, the will directed that they be sold by the executor and the proceeds used to pay testator’s debts and expenses, the remainder to be divided equally between Mr. Clark and Helen Mar Hun-nicutt.

Item 5, the proviso and the codicil follow:

“Item 5 — I own a share amounting to one-half of a tract of two thousand acres of land located in the extreme northern part of the Bias Reyes eleven league grant of land in Dimmit County, Texas. Helen Mar Hunnicutt owns the other one-half of this same tract of two thousand acres. I anticipate that when she and I will divide the said tract between ourselves I will become owner of the northern one-half and she the southern.

“It is, therefore, my will and desire, and I accordingly direct my executor to extend to Helen Mar Hunnicutt the option to purchase for herself and in her own name all of my one-half interest in the said tract of two thousand acres located in Dimmit County, Texas, it being the northern part of the Bias Reyes grant of eleven -leagues, for a total cash consideration of Six Thousand dollars ($6,000.00) to be paid to my executor within the period one year from the date of probate of this my will. If she elects to exercise the said option so extended to her, and shall pay that sum of money to my Executor herein named, he is hereby directed to proceed at once with the distribution of that sum of money in the manner which-I here describe as follows :• — ■ . '

“The amount for each beneficiary is set opposite the name.

The Austin Presbyterian Theological Seminary, Austin, twenty per cent.

The First Southern Presbyterian Church, Austin, twenty per cent. to be applied on the debt against its physical property.

The Board of Trustees of Shriners Hospitals for Crippled Children, Endowment Fund; (Philadel.) ten per cent.

Texas Scottish Rite Hospital for Crippled Children ; ■ (Dallas) ...1-1. A .. ten per cent.

Masonic Orphans Home, Ft. Worth, Tex... five per cent.

Masonic Home at Arlington, Texas ... .. five per cent.

Eastern Star Home at Arlington, Texas. five per cent.

Austin Chapter of Boy Scouts... five per cent.

Austin Chapter of Girl Scouts. five per cent.

Austin Chapter of American Red Cross. five per cent.

Executor’s fee for distribution... five per cent.

Children’s Home of Austin, Texas. five per cent.

* * * * * * * * * * *”

Proviso relative to Item 5—

“In the event that Helen Mar Hunnicutt shall fail to exercise the option offered her in Item 5 above by reason of her death or some providential hindrance, then my executor shall sell all my interest in the two thousand acre tract of land in Dimmit County by first advertising it in a newspaper for sale; and shall specify in the advertisement that a royalty of one-sixteenth will be retained by the vendor on all mineral, oil and gas that in future time may be developed within the land. The deed to be executed and delivered to the successful bidder shall carry the one-sixteenth mineral-right clause in favor of the Austin Presbyterian Theological Seminary of Austin, Texas.

“If all bids received should, in the judgment of my executor, appear unsatisfactory to him, he may postpone effort at sale and wait for a more favorable market value on the land. When the sale shall be completed and the money delivered into the possession of the executor, he shall segregate Six Thousand Dollars ($6,000.00) with which to satisfy and pay off the percentage legacies designated in the list of legatees in Item S above. Then, after first paying all bills of expenses, my executor shall distribute the remainder over in the manner as follows:—

Austin Presbyterian Theological Seminary 70 per cent.

Fund for aid to aged retired preachers, Southern Presbyterian, 20 per cent.

Board of Trustees, Scottish Rite Dormitory, Austin, Texas, 10 per cent.”

CODICIL

“The intent and purpose of this Codicil is to change and increase the amount of cash money which Helen Mar Hunnicutt is to pay, according to said Will dated January S, 1944, to my Executor for one thousand acres of land out of the Bias Reyes grant situated in Dimmit County, Texas, about six miles east of Carrizo Springs, from six thousand dollars ($6000.00) as expressed in the said Will to'the sum of eight thousand ($8000.00) dollars; and also to authorize my Executor to augment the said sum of eight thousand ($8000.00) dollars to the sum of Ten Thousand ($10000.00) dollars by using a portion of my undesignated E bonds not already appropriated in my Will. My Executor will then proceed to distribute the sum of ten thousand (10000.00) dollars according to the schedule described in Item No. 5 of my said Will of January 5, 1944.

“In testimony whereof I have hereto affixed my written signature on this 15 day of March 1948.”

Helen Mar Hunnicutt died in Blanco County, Texas, March 13, 1954.

On April 30, 1954, the administrator of the estate of Helen Mar Hunnicutt tendered to Austin' National Bank as Executor of the Estate of Hicklin P. Hunnicutt the sum of $8000.00 in cash in payment of. the amount required of her by the will of Hick-lin P. Hunnicutt in order to obtain ownership of the 1000 acres of Dimmit County land referred to in the will, and requested of the Executor a deed to the land.

The Executor Bank, being uncertain that its acceptance of such sum, for the purpose stated, was required of or authorized by it under' the circumstances to be related merely received such money and holds it subject to the judgment of a Court of competent jurisdiction, and for the purpose of securing such judgment instituted this suit.

This case was tried to a jury which answered the following single issue submitted to it as follows:

“SPECIAL ISSUE NO. 1;
“Do you find from a preponderance of the evidence that the-deceased, Helen Mar Hunnicutt, sometime between the probate of the will of Hicklin P. Hunni-cutt and her own death elected to exercise the option extended to her by the will of Hicklin P. Hunnicutt to purchase his interest in the Dimmitt County tract of land?
“Answer ‘Yes’ or ‘No.’
“Answer: NO
“By the phrase, Elected to exercise,’ as used in the foregoing issue, is meant any statement or statements made by Helen Mar Hunnicutt to Bronson C. Turner,' if any which communicated to 'him her then existing intention, if any she had, ¿nd her then definite decision, if any she had made, to purchase the land in question and to pay the $8,000 in cash within one year from the probate of the will of Hicklin P. Hunni-cutt.”

Based on this verdict, judgment was rendered that “Helen Már Hunnicutt did not elect to exercise the option to purchase the Dimmit County land * * * and that such option was not exercised by Helen Mar Hunnicutt and was not exercisable and exercised by * * * ” the administrator of her estate, “or by anyone else,” and all relief based on the exercise of such option was denied.

The only person who, as far as the record discloses, had any communication with Miss Hunnicutt regarding the option given her by the will of Hicklin P. Hunnicutt to acquire the 1000 acres of land in Dimmit County for $8000.00 was Mr. Bronson Turner, trust officer for the Executor Bank and who was authorized by it to act for it as Executor of this Estate.

There is no evidence that Miss Hunni-cutt performed any act, other than by speaking, which would indicate that she did or did not exercise her option to purchase this land.

Since appellants assert there was no evidence to support the finding of the jury and since some of appellees assert there was no evidence to support a contrary finding by the jury, we will recite all of the testimony given by Mr. Bronson, in which he testifies to what Miss Hunnicutt said, or did not say, regarding this option.

“Q If you have stated that during her lifetime that Helen Mar Hunni-cutt discussed with you an option extended to her by the will of Hicklin P. Hunnicutt, then state as well as you can how often you discussed this with her and, as best you recall, what was said.
“A I remember discussing the option with her on two or possibly more occasions. Each time in the discussion she stated that she wished to exercise the option but that she did not have the available cash at that time.
* , * * * * *
“A Miss Hunnicutt did not inform me in writing or otherwise that she had decided to purchase the Dimmit County land under the option provisions of the will. She indicated to me on two or more occasions that she wanted to purchase the land but did not have the available cash to do so at the time.
* * . * * * *
“Q What, if anything, did Helen Mar Hunnicutt ever tell you as to whether she was able to- exercise the option which may have been granted her under the will of Hicklin P. Hunnicutt?
“A Each time it was discussed she stated that she did not have the available cash at the time to exercise the option.
“Q If you have stated that Helen Mar Hunnicutt has told you anything with respect to her ability to exercise the option, then what did. she tell you in this regard?
“A All Miss Hunnicutt told me at the times we discussed the option was that she did not have the available ' cash.
* * * * * ’ *
“Q (By Mr. Cofer) All right, sir. ’ I am going to ask you some questions and ask you if that is not substantially, Mr. Turner, what occurred. You offered to' Helen Mar Hunnicutt, as specified in the will, the opportunity of exercising this option?
“A Yes, sir.
“Q And she told you that , she'would take the property?
“A That she wanted to take the property.
“Q All right. She wanted. She didn’t say she would take it ? She said she wanted to take it?
“A No, sir, she did not say that she would take it.
“Q She did not say that she would take it ?
“A No, sir.
“Q She said she wanted to take the property ?
“A Correct.
“Q Is that right ?
“A Yes, sir.
******
“Q Now, Mr. Turner, in any of the conversations that you had with-Helen Mar Hunnicutt, state whether or not that she told you that she elected to take the option ?'
“A She never used the word, ‘elected.’
“Q Did she state whether or not, in any of these conversations, she told you that she accepted the option in the will ?
“A No word to that effect.
“Q State whether or- not that she ever said anything or did' anything more than to tell you that she wanted to exercise the option.
“A That is correct.
“Q Did Helen Mar Hunnicutt ever discuss with you — I will ask you you this, Mr. Turner. State whether or not Helen Mar Hunni-cutt told you that she didn’t know where she would get the money to, exercise the option. : '
“A She never made such a statement.
“Q Well, what statement did- she make with reference to the money? •
'“A The only statement that she made to me was that she did not have • the available cash.
* 5* * * * *
“Q And you are sure you called her attention to the fact that it didn’t make any difference if she didn’t have the' money . then. She had within — twelve months within which to pay it?
“A Correct.
“Q Yes, sir. Now, is it fair to say that it was your definite impression at that time and all times that you talked to her about it, that she desired and intended to exercise the option within the twelvemonths period and pay the money?
“A Yes, sir.
“Q Do you think you told her, Mr. Turner, that all that remained to be done was to pay the money?
“A I do not recall having used such language.
“Q You don’t say that you didn’t tell her?
“A I wouldn’t say that I didn’t, no, sir.
* * * * * *
“Q- State whether or not Helen Mar Hunnicutt ever informed you or the bank, in writing or otherwise, that she had decided to purchase the Dimmit County land under the option provisions of the will.
“A Miss Hunnicutt did not inform me in writing or otherwise that she had decided to purchase the Dim-mit County land under the option provisions of the will. She indicated to me on two or more occasions that she wanted to purchase the land but did not have the available cash to do so at the time.
“Q State whether or not Helen Mar Hunnicutt ever informed you or the bank in writing or otherwise that she would take the Dimmit County land which Hicklin P. Hunnicutt owned.
“A No.
“Q State whether or not Helen Mar Hunnicutt ever informed you or the bank that she exercised her option under the will, either in those words or words of like meaning, and if she did so inform you ór the bank, please give as near as you can, the words used.
“A Miss Hunnicutt did not express to me that she exercised the option that was given to her under the will.
“Q What, if anything, did Helen Mar Hunnicutt ever tell you as to whether she was able to exercise the option which may have been granted to her under the will of Hicklin P. Hunnicutt?
“A Each time it was discussed she stated that she did not have the available cash at the time to exercise the option.
“Q If you have stated that Helen Mar Hunnicutt has told you anything with respect to her ability to exercise the option, then what did she tell you in this regard?
“A All Miss Hunnicutt told me at the times we discussed the option was that she did not have the available cash.
“Q Did Helen Mar Hunnicutt during her lifetime ever pay or offer to pay any money to The Austin National Bank in connection with the option contained in the will of Hicklin P. Hunnicutt?
“A No.
' “Q Did Helen Mar Hunnicutt ever discuss with you any financial arrangements for the sum of money or any part thereof, necessary to purchase the land covered by the option- in the will of Hicklin P. Hunnicutt?
“A No.
* * * * * *
• “Q All right. So she told ypu she wanted to take the property, but did not tell you that she would take the property?
“A Correct.
******
“Q She never told you she definitely would take this property and pay the $8,000 to the bank did she ?
“A She never told me definitely,”

In addition to this testimony, the only other statements on this subject attributed to Helen Mar Hunnicutt came by way of Mr. E. Wayne Thode, testifying to a conversation with the trust officer Mr. Turner. At the time of this conversation, Mr. Thode was an attorney for the administrator of the Helen Mar Hunnicutt estate. We quote Mr. Thode:

“Q What, if anything, did the then administrator of the Estate of Helen Mar Hunnicutt do with reference to said option provision in the will of H. P. Hunnicutt?
“A The first action taken was to make inquiry from The Austin National Bank, the Executor of the Estate of Hicklin P. Hunnicutt, as to whether or not the option had been exercised. I was referred to Mr. B. C., or Mr. Bronson C. Turner, the Trust Officer and official acting for the bank as Executor of the Estate of Hicklin P. Hunni-cutt. Mr. Turner informed me that he had made the offer to Helen Mar Hunnicutt, as specified in the will, and and that she told him she would take the property, but that she had not paid the amount specified in the will and codicil — $8,000.00 — before her death,
******
"A * * * I said to him 'Mr. Turner, didn’t she tell you, when you offered her the option under the terms of the Hicklin P. Hunnicutt will, that she would take the 1000 acres ? * * * ’ Mr. Turner replied, ‘Helen informed me, when I asked her, that she would take the property * * *.’
******
"A * * * In substance he [Mr. Turner] made that same statement to me during each of our conversations about this matter, that is, that he offered her the option under the terms of Hicklin P. Hunnicutt’s will, and that she told him she would take the property, * * *”

Miss Hunnicutt was a reserved, quiet, shy individual, not very talkative, who had devoted her life to teaching and scholarship. At the time of her death and for some years before, she was a Spanish translator at the Archives of the University of Texas. She was extremely frugal.

Miss Hunnicutt had been informed by Mr. Turner that the 1000 acres of land which she was given the privilege of purchasing had been appraised for estate purposes at $25.00 per acre. This 1000 acres and the 1000 adjoining acres which Miss Hunnicutt owned in her own right had been leased for grazing and surface purposes for several years for a total rent of $2500.00.

The inventory of Miss Hunnicutt’s estate and other testimony showed that at her death Miss Hunnicutt had a checking account of $3,800.00 and a savings account of $4,700.00 in the Austin National Bank and over $10,000.00 in U. S. Bonds. She also had 309 shares in the Austin National Bank valued at $20,000.00.

Appellants filed motions for an instructed verdict and for judgment notwithstanding the verdict of the jury. The Court’s action in overruling these motions is the basis of appellants’ first two points. It is our opinion that they should have been granted and we sustain appellants’ first two points.

When we examine closely what Mr. Turner testified that Miss Hunnicutt said regarding the option in the will as distinguished from what she did not say, we find that one thought, and only one thought, clearly emerges. She "wanted” the land. There is not the slightest intimation from Miss Hunnicutt that she did not want the land. To say, as some appellees say that the use of the word “want” by Miss Hunnicutt is mere precatory language, to express a desire or a wish, is to attribute to Miss Hunnicutt a lack of intelligence and a childishness which the record refutes. Miss Hunnicutt was an educator. She was on the original staff of A and I College at Kingsville. She was a Spanish translator. She had lived a scholarly life. She was very careful with her money. She was very saving.

Miss Hunnicutt had been furnished with a copy of the will and had, presumably, read it. Mr. Turner had explained the option to her. She knew, peradventure of any doubt, that she had to pay $8000.00 for the 1000 acres in order to receive it. She repeatedly referred to the financial requirement. She also knew that this was an advantageous bargain. She knew that the 1000 acres was renting for $1250.00 per annum, a 10% return, less taxes, on a $12,500 value, a 5% return on a valuation of $25,000.00. She knew the land was appraised for $25,000.00 She knew, as everyone knows, that land, the surface, does not depreciate. She knew, as everyone knows, that the general trend of land values is up.

To say that Miss Hunnicutt would not appreciate and seize the opportunity granted to her by the will is unrealistic and would convict her of acting contrary to her frugal nature. Webster states that the word “frugal,” in an economic sense, implies “the use of money or resources to the best advantage.” Webster Int. Dictionary, 2d. ed., unabridged. There is nothing in this record to indicate that Miss Hunnicutt could have used $8000.00 to better advantage than to acquire this 1000 acres. As for her saving bent, first there must be something tc save.

The will reflects that the testator did not contemplate that Miss Hunnicutt would voluntarily refuse to pay $8000.00 for the 1000 acres. He provided an alternative only in the event she failed to exercise the option “by reason of her death or some providential hinderance.” This language clearly implies that the testator believed that the option granted Miss Hunnicutt was beneficial to her and was in the nature of a gift and not a commercial transaction or sale. If the form of the will had been a devise of the 1000 acres subject to a charge of $8000.-00, then there would have arisen a presumption that the bequest was beneficial and that she had accepted it. See Annotation 93 A.L.R.2d 8; 96 C.J.S.. Wills § 1149a, p. 944.

The negative testimony in the record as to what Miss Hunnicutt did not say regarding the option is, in our opinion, of no probative force. Miss Hunnicutt was not called upon to say anything. She had no duty to speak. She had the privilege of saying what she pleased about this option. She had the privilege of saying nothing. If what she said amounted to an acceptance of the offer in the will, what she did not say should not have the effect of destroying what she did say. The words which Miss Hunnicutt did not say about this option could be piled up almost ad infinitum. Did she say for “certain” she would take the land? Did she say “positively” that she would buy the land? Did she say “unequivocally” that she elected to exercise her option to purchase the land ? Multiplied a thousand fold, this is no evidence that she did not accept or exercise the option and detracts not one whit from what was said.

Miss Hunnicutt was constant in expressing her intent regarding this option or the land it represented. This intent is unmistakable. It was to take the land. The words she used to express this intent were layman’s words. She “wished” to exercise her option. She “wanted” to take the property. Nevertheless, they have a single meaning.

We hold that under the evidence Miss Hunnicutt, as a matter of law, accepted testator’s offer to permit her to purchase the 1000 acres for $8000.00 to he paid as provided in the will. We also hold that considering only the evidence favorable to the verdict and indulging in all intendments in that behalf there is no evidence of probative force to sustain the verdict, and that this is a matter about which reasonable minds cannot differ. ■

Miss Hunnicutt did not, herself, pay the $8000.00 required by the will, her death intervening. This sum was paid by her administrator within the time fixed by the will. We hold that such payment satisfies the requirement of the will.

Miss Hunnicutt stated that “she did not have the available cash at that time” (Italics added) in discussing the option with Mr. Turner. There is no finality in this statement. In fact, it recognizes the temporary lack of, not money, but “available” money. Clearly, it seems to us, Miss Hunnicutt had in mind, in due time, making the $8000.00 available, and paying it for the land.

There is nothing in the will compelling simultaneous acceptance of the offer to buy and payment of the money. The acceptance of the offer would imply the promise to pay but payment might be deferred for a year after probate of the will. This distinction between an election to exercise an option and performance by the optionee is recognized in James on Option Contracts (1916) Sec. 839, from which We quote:

“Election and Performance Distinguished. Election, as we have seen, is the act which converts the option into a binding promise on the part of the optionor to sell. In a very broad sense it is an act of performance, but a performance which is ' optional with the optionee. The performance we now have in mind is one which grows out of the election and thus becomes obligatory upon the optionee. As thus viewed the distinction between election and performance is apparent, since the former has to do with the creation of the contract and the latter with the. fulfillment of the terms of the contract after its creation.”

This authority also states, Sec. 1241, that,1 “Where the optionee dies after election, the devisee under his will may maintain suit for specific performance.”

In 3 Williston on Contracts, Revised Edition, Sec. 853, this pertinent discussion is made:

“Though the condition as to time must be strictly complied with, a distinction should be noted: If the option offers a unilateral contract, then performance must be tendered within the stated period, whereas, if it offers a bilateral contract, while acceptance must be made within the time fixed, performance need not necessarily be begun or completed so promptly in the absence of controlling stipulations in that respect. But an option may require both that notice of intention to exercise the option be given within a specified time and also that the performance be rendered by a certain date. In such a case failure to give such notice on time is fatal, as subsequent -failure to render performance seasonably would also be.”

Our own Courts have considered the acceptance of an option as separate from performance by the optionee where permitted by the terms of the option. In Lambert v. Taylor Telephone Cooperative, Inc., 276 S.W.2d 933, Eastland Civ.App., it is stated:

“Appellee, as required by the contract, notified appellant in writing of its exercise of the option. This is all that is required by the contract to effect an acceptance. Of course, appellee was required to pay the purchase price, but payment was required only after delivery by appellant of the abstracts and ■deeds. In the absence of a provision to the contrary, payment is not necessary to effect an acceptance.”

See also Wall v. Trinity Sand and Gravel Company, Tex.Sup., 369 S.W.2d 315, where it was held that acceptance of an option without payment of the consideration created a binding contract.

We hold that the $8000.00 payment timely tendered by the Administrator of the Helen Mar Hunnicutt Estate was made pursuant to a legal obligation of such estate.

Before leaving this phase of the case we desire to emphasize that we are expounding a will, not a business contract. While, as stated, the language used by the testator in the will created a formal option, yet from the entire will, the relationship of the parties and the attendant circumstances it is evident that the testator intended to bestow upon Miss Hunnicutt a substantial benefit and that a gift was in his mind to the extent that the value of the land exceeded $8000.-00. In Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, the Court in considering the effect of an onerous deed not delivered before death of the maker said, “As a rule of reason and common sense, a delivered instrument plainly amounting to a deed of gift should operate by a presumed assent until a dissent or disclaimer appears.” See also Mattern v. Herzog, Tex.Sup., 367 S.W.2d 312, where the Court very liberally construed an option in a will in order to carry out the intention of the testator and to achieve an equitable result. These authorities and those previously cited convince us that our disposition of this case is in accord with sound legál 'principles and that it is just.

The religious and benevolent institutions who will be disappointed by our decision and who may question its wisdom and justness should pause and reflect on what their judgment would be if Miss Hunnicutt instead of suffering a fatal illness on April 16, 1953, had been then rendered mentally inert and had remained so until now, the $8000.00 being timely tendered for her by her legal representative. If our present decision is wrong, it would also be wrong under the assumed facts.

Appellants’ third and fourth points relate to procedural matters in submitting this case to a jury. Our ruling on the first two points renders these points immaterial. Appellants also have some alternative points which, under our ruling, become inapplicable.

Appellants’ fifth point questions the manner, not the amount, in which the attorneys’ fees, and expenses, other than simple Court costs which were assessed against appellants, have been assessed. The Court ordered these items, totaling $3,885.38, paid “according to the following priority:

“(a) From such portions of said funds as were derived from leases, rentals, interest or income other than that derived from the leasing of the property for oil, gas, and other minerals;
“(b) From such portion of said funds as were derived from delay rentals from the existing oil and gas lease;
“(c) From other available assets of the Estate of Hicklin Hunnicutt, deceased, now on hand.”

Appellants do not brief this point except to state their position that the Court should exercise its discretion and assess the costs against the property and funds in dispute.

Appellees other than the Unknown Heirs of H. P. Hunnicutt, have no complaint about the manner .in which costs, attorneys’ fees, and 'expenses were assessed and ordered paid, saying that the discretion of the Trial Court has not been abused in this respect.

The Unknown Pleirs of H. P. Hunnicutt contend that under Item 6 of the will the three pieces of property there mentioned should be sold and, as the will provides, “use the money from the sales to pay off all debts and expenses that may remain to be paid by my estate.”

The inventory of the H. P. Hunnicutt estate does not describe any of the items mentioned in this paragraph of the will. Presumably, they were not on hand when the testator died.

We are unable to detect any abuse of discretion by the Trial Court in ordering payment of attorneys’ fees and expenses in the manner indicated. All ordinary Court costs, however, will abide the event and will be assessed against appellees other than the Austin National Bank, Executor.

We note from the record that certain features of this litigation, notably an accounting between the parties, have been severed for separate trial. Under these circumstances we believe the appropriate judgment herein is to reverse and remand this cause for further proceedings consistent with this opinion. We further direct that any final judgment herein be made subject to the administration of this estate by the Austin National Bank, Executor, in the event that at such time further administration is necessary.

The judgment of the Trial Court is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . The 2000 acre tract of land in Dimmit County had been partitioned, Mr. Hun-nieutt obtaining the north ' 1000 acres and Miss Hunnicutt the south 1000 acres.

      . There is evidence to the effect that this land was worth $35,000.00 at testator’s death.

      . Mr. Turner also testified, “Each time it was discussed she stated that she did not have the available cash at the time • to exercise the option.”

      . Appellees, The Scottish Rite Educational Association of Texas and the Board of Annuities and Relief of the Presbyterian Church in the United States, in their brief say: “All this discussion leaves us with the problem originally facing us —construction of the option provision in the will of Hicklin P. Hunnicutt. Ap-pellees urge that this problem is quite different from that of construing an option involved in a commercial transaction. We have an option created by will with obvious donative intent on the part of the testator.