author: WALTER, Justice.

text:
    Raymond HOWELL et ux., Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellee.
    No. 3893.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1964.
    Rehearing Denied July 17, 1964.
    Baker, Jordan, Shaw & Foreman, Tom Shaw, Harvey Davis, Dallas, for appellants.
    Howell, Freels & Crawford, Joe Crawford, Denison, for appellee.
   WALTER, Justice.

Raymond Howell and wife filed suit against Missouri-Kansas-Texas Railroad for damages resulting from a crossing accident in which their son Jimmie Ray Howell was killed. Based upon the verdict, judgment was rendered for M. K. & T. The Howells have appealed.

They contend that the court erred in receiving in evidence photographs and motion pictures which were taken more than a year after the collision; they contend this evidence purported to demonstrate to the jury the scene of the accident and the approaches to the crossing. They contend the demonstrations and experiments were made under conditions and circumstances so substantially different from those existing at the time of the accident as to confuse and prejudice the jury.

The wreck occurred at night on February 4, 1961. It was raining and sleeting. Jimmie Ray was driving a pickup truck. He approached the railroad crossing from the north on North First Street in the City of Garland driving about twenty or twenty-five miles per hour. M. K. & T’s train approached from the west traveling about twenty-five or thirty miles per hour. At the time of the collision the condition of the area from the road and the railroad track to the west was substantially as follows: About four hundred feet north of the crossing there was a railroad crossing sign. A Lone Star Gas Company building is located approximately three hundred and fifty feet north of the crossing. Cedar trees twelve feet high, brush, shrubbery, power and telephone poles and entrance posts were also located in this area. There were piles of gravel, trucks, county shops and barns, butane tanks, sheds and an office building also located in this area.

The gravel, trucks, office building, shops barns and tanks were removed after the accident and before photographs and motion pictures were taken. Photographic color picture slides of the scene were taken by the claim agent at about 9:00 in the morning on a clear day more than a year after the collision. Under his direction, motion pictures were taken of the area at night under good weather conditions more than a year after the wreck. The movies were taken from a car approaching the crossing from the north showing oncoming traffic and a train approaching from the west. Appellants objected to this evidence because no proper predicate was laid for its introduction; no evidence that the train was traveling at a similar speed at the time the experiment was made and at the time of the accident; no evidence that the car in which the films were taken was traveling at the same speed as Howell’s pickup truck; no evidence that the films portrayed the scene similar to the conditions existing at the time of the accident, in that, it was not raining when the films were made and the undisputed evidence showed that the physical conditions of the crossing area were not the same as those existing on the night of the fatal crash.

G. P. Pargen lived in Garland and was employed in the Engineering Department of the railroad. He testified substantially as follows: He made a detailed survey of the area in question on February 15, 1962, locating all objects on the west side of First Street to a point where the Santa Fe crosses the M. K. & T’s main line and from the railroad crossing sign approximately four hundred feet north of the tracks to the crossing. This map was introduced in evidence. This map did not show the trucks, truck sheds,, the gravel, the house or gas pump which were there at the time of the accident. On cross examination he was required to show the location of all the missing obstructions and locate them on the map.

On the day following the accident he visited the crossing and the approaches thereto. As he traveled from the Lone Star Gas Company building to the crossing, Mr. Pargen said that the railroad was visible at different intervals but not above the high point of the gravel pile. He visited the area at night and said he was always able to observe an approaching train and that he was always able to see the oscillating light but sometimes could not see the headlight on an approaching train.

Robert Ray Jones of the Garland police department investigated the accident. A few days thereafter he made some experi-merits at night to determine if approaching trains from the west were visible to a driver of an automobile proceeding south along First Street after one passed the Lone Star Gas Company building and proceeded on toward the crossing. This experiment was conducted when the physical conditions of the area were similar to those that existed on the night of the wreck. He was asked, “Yes, sir. And from that point on is he able to see the approach of the train, the headlight of the train as he drives on down to the track if he looks?” And he answered: “Yes, sir. You can see the headlight.”

From the testimony of Pargen, Jones, other witnesses, and from exhibits, it was made clear to the jury that the slides and motion pictures were made at a time when it was not raining and when some of possible obstructions in the area had been moved. Defendant’s Exhibit No. 25 was introduced in evidence without objection. It was a photograph of the area on the west side of First Street before the possible obstructions had been moved. Also the testimony of the witnesses Jones and Pargen was that soon after the accident when the physical conditions were the same that after passing the Lone Star Gas Company building about 350 feet north of the crossing one could see the train. No point is made that the Jones and Pargen experiment was not proper. Appellants rely upon the recent case of Fort Worth and Denver Railway Company v. Williams, dated February 1, 1964, Tex., 375 S.W.2d 279 as authority for their contention that the court erred in overruling their objection to the slides and motion pictures introduced in evidence by the appellee.

In the Williams case the court said:

“In order to render evidence of an experiment made out of court and without the presence of the opposing party admissible, it is generally held that there must be a substantial similarity between conditions existing at the time of the occurrence which gives rise to the litigation and those in existence at the time the experiment is conducted for demonstration purposes. It is not, however, essential that the conditions of the occurrence and the experiment be identical. Houston, East & West Texas Ry. Co. v. Sherman, Tex.Com.App., holdings approved by the Supreme Court, 42 S.W.2d 241 (1931); Rodgers v. State, 93 Tex.Cr.R. 1, 245 S.W. 697 (1922). When there exists a dissimilarity, testimony of an experiment should be excluded when the result thereof would probably confuse rather than aid the jury. There exists an area wherein the determination of the admissibility of proffered experiment testimony rests within the discretion of the trial judge. This occurs whenever the dissimilarity between the occurrence conditions and the circumstances of the experiment is minor or can be made abundantly clear by explanation. Houston, East & West Ry. Co. v. Sherman, supra. Panhandle and Santa Fe Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347, wr. ref. (1921). See, Annotation, Experimental evidence as affected by similarity or dissimilarity of conditions, 85 A.L.R. 479.”

We believe the instant case and the Williams case can be distinguished on the facts. Following the rule announced in the Williams case, we find that the appellants have not discharged their burden of showing that the court abused its discretion in admitting the slides and the motion pictures in evidence. We agree with the trial court that the color picture slides and motion pictures aided the jury in deciding the issues rather than confusing them because the dissimilarity of the conditions was made abundantly clear by explanation.

The jury answered Issue No. 31 that Howell failed to keep a proper lookout for the train and that such failure was a proximate cause of the collision. It also answered Issue No. 33 that he failed to look for the oscillating headlight; that this was negligence and a proximate cause of the collision. It also answered Issue 36 that he failed to give heed to the oscillating headlight; that this was negligence and a proximate cause of the collision.

The appellants contend the court erred' in submitting Issues Nos. 31 and 33 because 33 is repetitious of 31 and unduly stresses appellee’s theory of the case. They also contend No. 33 is a comment on the weight of the evidence. They contend the court erred in submitting Issue No. 36 because it is repetitious and assumes material controverted issues.

We have concluded that appellants have failed to show that the errors in submitting said issues amounted .to such a denial of their rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. In Indemnity Insurance Company of North America v. Carrell, Tex.Civ.App., 318 S.W.2d 744, (writ ref. n. r. e.), the court said:

“We fail to perceive error. If we be mistaken we think the omission of ‘if any’ in Issue 5, after consideration of all the pleadings and evidence in the case, is not such an error as to require a reversal. We think the error (if such be an error), falls within the holding of Mason v. Yellow Cab & Baggage Co., 153 Tex. 344, 269 S.W.2d 329; Texas Employers Ins. Ass’n. v. McKay, 146 Tex. 569, 210 S.W.2d 147; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, and Cogbill v. Martin, Tex.Civ.App., 308 S.W.2d 269. Such cases hold that although a special issue submitted to a jury may constitute an implied comment or instruction, because of assumption or apparent assumption of facts involved in terms in which it propounds a question (as the omission of ‘if any’, etc.), such issue does not always entail a reversal, since under the circumstances of the particular case, the force of the comment may be so weak that it either is no comment at all or may be said to be harmless.”

We find no merit in appellants’ point that there was an irreconcilable conflict in the jury’s answers. They claim that the three findings (1) that Howell failed to keep a proper lookout (2) that he failed to look for the operating oscillating headlight (3) that he failed to give heed to the operating oscillating headlight are in fatal conflict with the jury’s answer “He could not have stopped” to special issue 61 which is as follows:

“Do you find from a preponderance of the evidence that after the defendant’s train became plainly visible and in hazardous proximity to the crossing in question, if it did, Jimmy Ray Howell by the exercise of' ordinary care could not have stopped his automobile within fifty feet but not less than fifteen, feet from the nearest rail of the railroad track?”

They contend that after applying the test set out in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, and Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772, a fatal conflict results. In the case of Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, the Court said:

“It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled. This is elementary.”

In the instant case the findings do not destroy each other but can be reconciled. Also in the instant case there was no finding of causation following issue No. 61. In Todd v. La Grone, Tex.Civ.App., 234 S.W.2d 99, (Writ Ref. N.R.E.), the court said:

“Appellants assert that the answer of the jury finding that deceased Mc-Cormack did not fail to observe the signs of the road, and the blinker light and the answer that he failed to keep a proper lookout are in irreconcilable conflict. We do not think so. The deceased could have observed all highway signs and markers and yet could have failed to keep a proper lookout with respect to persons traveling the east and west highway. It is the duty of the trial court to reconcile the findings of the jury unless they are destructive of each other. Traders & General Ins. Co. v. Ross, 131 Tex. 562, 117 S.W.2d 423. The issues do not destroy each other but are reconcilable. Lewis v. Martin, supra [Tex.Civ.App., 120 S.W.2d 910]; Townsend v. Young, Dist. Judge, Tex.Civ.App., 114 S.W.2d 296.”

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    The LAB OIL COMPANY et al., Appellants, v. Mrs. Ella L. BENTZ et al., Appellees.
    No. 14.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 25, 1964.
    Edmond Ford, Jr., Corpus Christi, W. B. Moss, Sinton, for appellants.
    Marshall Boykin, of Wood & Boykin, Corpus Christi, Joe Ternus, Sinton, for appellees.
   NYE, Justice.

This suit was one brought by the ap-pellees Ella L. Bentz, a widow, Francis L. Bentz and wife Faye Bentz, and Charles N. Bentz and wife Estelline Bentz, called hereinafter Bentz, seeking the cancellation and termination of an oil, gas and mineral lease and praying for removal of the cloud from the appellees’ title to the land by virtue of such lease, on the theory that after the expiration of the primary term, the lease terminated due to cessation of production or efforts to obtain production. The appellants, M. Liedeker, Sr., Paul A. Alford and Fred Bowman, individually and as partners, d/b/a Lab Oil Company, called hereinafter Lab, contend that this is a particularly drawn lease and that the word “operations” as used in the habendum clause of the lease was intended to cover activities of operating the lease and not development operations, and that such activities prevented such lease from terminating.

The lease in question covered two non-contiguous tracts of land in San Patricio County, about one mile west of Sinton, Texas, one of approximately 11.75 acres and another of 68.25 acres. Bentz, on April 5, 1960, executed the subject oil, gas and mineral lease to Joe W. Thomas, one of the defendants and appellants herein, who thereafter assigned the lease to Lab, retaining an overriding royalty interest, one half of which Thomas assigned to A. Loy Sims.

Shortly after Lab received the assignment of the above lease, they commenced reworking three wells on the leased premises, one on the 68.25 acre-tract and two on the 11.75 acre-tract. Two wells were abandoned as dry holes. The other well, on the 11.75 acre-tract, was completed as a gas well in July or August of 1960 and was immediately connected to a gas purchaser’s line, and gas was sold to the purchaser. No oil was ever produced from the lease and this gas well was the only well on the lease that marketed any production. After Lab completed the reworking of this well and the laying of the pipeline to the purchaser, no other drilling or reworking on any well on any of the leased property was performed by Lab, nor did they engage in building lines or otherwise improving or repairing the leasehold or the equipment located on the lease.

Small quantities of gas were sold on a consistently decreasing basis from August, 1960, until February, 1961. For instance, the total revenue from %ths production in August, 1960, was $79.17, decreasing some each month until only $5.52 was received from production in February, 1961. During the next eight months no gas was sold and no shut-in gas payments were paid to Bentz.

On or about October 10, 1961, more than seven months after Lab stopped selling gas, Bentz executed and delivered another oil and gas lease on a portion of the same land to Charles F. Haas and Richard E. Haas, d/b/a Haas Brothers, and Charles F. Brocate and Donald Sharp, all inter-venors in the suit below and appellees here. Shortly thereafter, in November, 1961, sales by Lab were recommenced and continued up to the date of the filing of this suit. Total revenue per month received during this later period from sales varied from $1.64 to $12.64 per month.

The trial was held before the court without a jury. Judgment was rendered in favor of the plaintiff Bentz and inter-venors, declaring the subject lease, as well as all interest therein, reserved and/or assigned to Lab, J. W. Thomas, and A. Loy Sims, terminated as of, on or before December 1, 1962, and cancelling and removing the cloud on their title. Lab perfected its appeal to this court, assigning fourteen points of error.

Paragraph number two of the oil and gas lease contains the habendum clause. It is this clause that gives rise to this controversy. It reads as follows:

“2. Subject to the other provisions herein contained, this Lease shall be for a term of ninety (90) days from this date (called “primary term”) and as long thereafter as oil, gas or other mineral is produced from .said land or operations are conducted on the land covered hereby or this Lease is otherwise maintained as hereinafter provided.” (Emphasis supplied)

The controlling, question on this appeal is the meaning of the phrase contained in the habendum clause of the lease which could extend the duration of the effective term of the lease beyond its primary term. Such phrase, “ * * * as long thereafter as * * * operations are conducted on the land covered hereby * * * ”, should according to Lab, be construed to mean: as long thereafter as * * * activities are conducted on the land covered hereby, even if the expenses of conducting those activities were greater than the revenue from resulting production.

The trial court found, based on sufficient evidence, that the primary term had expired; that the defendants ceased operations, as that word is used in paragraph two of tile subject lease, sometime in July or August of 1960; that “After completion of the No. 1 Ella Bentz ‘B’ Well and connecting same to the pipeline, defendants conducted no operations on the leased premises as that term is used in paragraph two (habendum clause) of the lease under which defendants claim”; that “the defendants did not produce gas in paying quantities from the lease under which defendants claim after the expiration of the primary term of the lease”; that “there was no well capable of producing in paying quantities and shut-in”; that “there were no drilling, reworking or other developing operations conducted on the premises after the primary term”; that the court found and concluded “that the clause ‘or operations are conducted on the land covered thereby’ as used in paragraph two of the subject lease (the Thomas lease) is not ambiguous; but I also conclude and find that even if ambiguous, under all the evidence admitted and offered, the parties to such lease did not intend that ‘operations’, as that term is used in said clause, would include those acts of the defendants since completion of the number 1 Ella Bentz ‘B’ well and the connecting of same to the pipeline sometime in July or August of 1960.” The court concluded that; “the lease under which the defendants claim terminated on or before December 1, 1962, and by reason of such termination the plaintiffs, Ella L. Bentz, Francis L. Bentz and wife Faye Bentz, Charles L. Bentz and wife Estelline Bentz, and the inter-venors Charles F. Haas and Richard E. Haas, individually and d/b/a Haas Brothers and Charles P. Brocato and Donald Sharp, are entitled to removal of said lease and any assignments thereof or interest therein as clouds upon their respective titles.”

Lab contends that irrespective of the foregoing, the term of the lease continued because certain “operations”, as that word or expression is used in the habendum clause and as contemplated by the parties, were .conducted continuously upon the lands covered thereby sufficiently to hold the lease. The activities claimed by Lab to amount to “operations” after the primary term of the lease had expired, are as follows: (1) production of gas continuously (although in very small quantities) to the house of Bentz for domestic purposes, (2) making well pressure reports and monthly production reports to the Railroad Commission of Texas, (3) going upon the lease two or three times a month and occasionally turning the valve on and off, (4) keeping books on the well and the lease and distributing small gas royalty payments from the sale of gas during certain intervals to the Bentz and those otherwise entitled.

The oil, gas and mineral lease must be considered as a whole in order to give effect to its general purpose and the true intentions of the parties. The court will examine and consider the entire writing, seeking if possible to harmonize and give effect to all provisions of the lease so that none will be rendered meaningless. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). The lessee’s interest in this lease is a determinable fee because the lease terminates upon the happening of the events upon which it is limited. The conditions contained in the habendum clause are limitations which may determine the term or the ending of the lease. Stanolind Oil & Gas Co. v. Barnhill, 107 S.W.2d 746 (Tex.Civ.App., Writ Ref. 1937); Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960). We must look at the whole lease, giving effect to the construction of the language contained within the four corners of the instrument, for the effect of these limitations. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953). The lease provides that it shall remain in force for a term of ninety days and “as long thereafter as oil, gas or other mineral is produced * * This limitation clause does not say “produced in paying quantities”. Yet it is clear in Texas that when construction is to be given to the word “produced” where no modifiers are used to aid in the construction of the condition, the word “produced” nevertheless means “produced in paying quantities”. Garcia v. King, 139 Tex. 578, 164 S.W.2d 509 (1942); Gulf Oil Corp. v. Reid, supra.

The Supreme Court, in the Garcia v. King case, supra, had this to say in regard to interpreting the language of a contract:

“In order to understand and properly interpret the language used by the parties we must consider the objects and purposes intended to be accomplished by them in entering into the contract.” (Emphasis supplied)

When we look at the last sentence in paragraph number eight of the lease we find some expression and effect of the “objects and purposes intended to be accomplished” by the parties in the wording in one of the covenants of the lease:

“8. * * * After discovery of oil, gas or other mineral in paying quantities on said premises, lessee shall reasonably develop the acreage covered hereby by drilling any wells that a reasonably prudent operator would drill.” (Emphasis supplied)

This is the first time “paying quantities” is used in this lease. Yet the parties concede that the use of the word “produced” as a condition in the habendum clause, means “produced in paying quantities”. The covenant in this lease gives effect to that concession. The second part of this covenant (paragraph number eight above) requires lessee to reasonably develop the acreage covered herein by drilling (and drilling is later defined to include any reworking operations or attempting to bring wells back on production) any wells that a reasonably prudent operator would drill. This covenant gives clarity to the parties’ intention that the use of the word “operations” as a condition in the haben-dum clause means “development operations”.

Paragraph number four of the subject, lease further clarifies the objects and purposes intended to be accomplished. It is as. follows:

“4. If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land but Lessee is engaged in drilling or reworking operations in the bore of a well thereon or shall have completed a dry hole thereon within sixty (60) days prior to the end of the primary term, the Lease shall remain in force so long as operations on said well or for the drilling or reworking in the bore of any additional well are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other minerals, so long thereafter as oil, gas or other mineral is produced from said land.”

This paragraph restricts, defines and limits the word “operations” to: (1) “reworking operations in the bore of the well”' when lessee is so engaged at the expiration of the term; and (2) upon the completion of a dry hole “within (60) sixty days prior to the end of the primary term, the Lease shall remain in force so long as operations, on said well * * * are prosecuted”. See Geier-Jackson, Inc. v. James, D.C., 160 F.Supp. 524 (1958).

This lease as a whole clearly sets out that the obligation and purpose of operations was the development of the land covered thereby.

Lab assigns as one of its propositions that the trial court erred in finding that the clause “or operations are conducted on the land covered hereby” as used in paragraph number two of the habendum clause is not ambiguous. First, the clause is not ambiguous and, second, the trial court concluded and found that even if such clause is ambiguous the parties to the subject lease did not intend that the “operations”, as that term is used in said clause,, would include the acts of Lab which they claim extends the term of the lease.

Ambiguity of a contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning. Universal C. I. T. Credit Corp. v. Daniel, supra; citing with approval Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 P. 661, 665 (1929); Barker v. Lashbrook, 128 Kan. 595, 279 P. 12, 13 (1929). If, after applying established rules of interpretation to the contract, the phrase in the lease remains reasonably susceptible to more than one meaning, it is ambiguous, but if the phrase only contains language of doubtful meaning, the primary concern of the courts is to ascertain and to give effect to the true intention of the parties. But here, as we have seen, the use of the term “operations” means development of the lease for profit to the parties by actual drilling of new wells or repair or reworking of old wells and the attendant labors and techniques employed by the oil industry in such matters. Therefore, the trial court correctly ruled that the term “operations” was neither ambiguous nor clouded by ascribed incidents of doubtful application. The insistent contention of Lab -that the expression “operations are conducted on the land covered hereby” is still ambiguous when tested by the ordinary rules applicable, impliedly invites us to invoke the stronger rule of strict construction against the party preparing the contract. This rule is applicable only where such meaning does not come clear by ordinary rules of construction. The author of the lease was the attorney for J. W. Thomas, the original lessee and the assignor of Lab.

In using the term “operations” the lessee did not have in mind any ambiguity in the use of such term, or he would have invoked the claimed examples of its meaning by detailed description as was done in defining the word “drill” in paragraph number ten of the lease, which reads as follows :

“10. Lessee shall have the use of tlie pipe and equipment presently located on any abandoned well on any of said land for use in his operations hereunder and wherever the word ‘drill’ is used in this Lease the same shall include any reworking operations which Lessee may desire to make on any presently located well on said land and the reworking or attempting to bring such wells back on production shall in all things be deemed as if drilling were being conducted as provided for herein”.

The meaning of the word “operations” in drafting the lease, unquestionably denoted to the parties the meaning of doing those things that would continue the quest for production. By developing the property, the continuance of the lease would naturally follow until production be obtained or abandonment be indicated. A further discussion of the stronger rule of strict construction against' the author is unnecessary. -

Lab further contended that the lease contract and the parties themselves contemplated that the restoration of gas to the lessor’s house (Bentz) was either a purpose, an object, an obligation or a consideration for the lease. Lab insists that the only operations which could reasonably have been contemplated were operations resulting in production to Bentz house, although Lab testified in connection with this gas furnished to Bentz, the total amount, if sold through the pipeline, would not have brought in a dollar to Lab in a year. The lease provided in paragraph number eleven that:

“11. Lessee shall attempt to restore gas for itse by Lessor for domestic purposes at no cost to Lessor.”

This covenant does not say that this is a purpose or object-of the lease, vital to its. continuance. What was the purpose of the parties in executing this lease? Most certainly it was for the development of the property and not the non-profitable production to the house of Bentz in order to extend the term of the lease or to hold it merely for speculation. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 (1959). What did the parties agree upon that might extend the lease beyond its primary term? There were two such contingencies so agreed. One was production in paying quantities (either potentially as in a shut-in well, or actual marketable production), never attained and so admitted by all parties. The other contingency that would toll the termination was the conduct of “operations” upon the leasehold. Operations for what? — The purpose or object of making a regulatory report to the Railroad Commission of Texas? This we think was a mere incident required in the industry. Was the purpose to continuously allow a small quantity of gas to flow to a residence in a pipe installed, maintained and paid for by the lessors? Such argument appears ingenuous but it was certainly not persuasive to either the trial court nor to us. The primary purpose of the subject lease, and the object of the parties, was to develop the leasehold lands with new wells or cleaning out and reworking old wells and to achieve, ultimately, production in paying quantities.

Lab, in two propositions, contends that there was no evidence or, in the alternative, that there was insufficient evidence to support the trial court’s finding that Bentz did by their own effort take and use gas from the leased premises. A Mr. Bowman, the managing partner of Lab, testified that Lab did not install the gas line and regulators furnishing domestic gas to the house of Bentz, nor did Lab maintain or purport to maintain the gas line or the regulators. Mrs. Bentz testified that the Bentz laid the gas line to their house, claimed ownership of it and had used it for over three years under a prior lease with different parties. We hold the evidence is sufficient to support the trial court’s findings.

During the course of the trial, counsel for Lab addressed this question to Mrs. Bentz: “Now, I will ask you if you have, or ever have had an understanding of what the word ‘operations’ meant?”

The trial judge sustained the objection to this question but heard the testimony on a bill of exception. Lab complains because the trial court excluded the testimony and further because Lab contends that the trial court considered the testimony in making one of its findings. These points are without merit. First the question inquired of the witness’ understanding, past or present, of the meaning of the word “operations”. The question was not directed to the witness’ specific understanding of the meaning to be given to the habendum phrase “operations are conducted on the land covered hereby”. Rather the question was directed to the witness as how the word might be defined. The question was not directed to the witness as to what Bentz intended by the use of the word “operations” in the habendum clause of the lease. The Supreme Court in Guardian Trust Co. v. Baueriesen, 132 Tex. 396, 121 S.W.2d 579 (1938) said:

“It is proper to consider parol testimony as to the circumstances surrounding the parties out of which the contracts grew, not to add to or vary their terms, but to apply the contracts to the subjects with which they deal for the purpose of ascertaining the real intention of the parties.”

If the question is not directed to ascertaining the real intention of the parties, then the written contract must be taken as expressing the final views of the parties.

In the case of Guarantee Life Ins. Co. v. Davidson, (Tex.Com.App. opinion adopted, 1921), 234 S.W. 883, the court states:

“A contract which has been reduced to writing, and imports on its face a complete expression of the whole agreement, without any uncertainty or ambiguity as to the object and extent of the engagement, must be taken as expressing the final views of the parties, as well as the full consummation of their undertaking.”

The final views of the parties, thus reduced to writing, preserve the sanctity of contract and insure at once against the insecurity of memory and the design of bad faith. See also Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958), and Natural Gas Distributing Corporation v. Williams, 355 S.W.2d 194 (Tex.Civ.App. 1962, writ ref. n. r. e)

The trial court found additionally that even if the lease was ambiguous, under all the evidence admitted and offered, the parties to such lease did not intend that “operations”, as that term is used in such clause, would include the acts of Lab. The evidence was offered by Lab, who excepted to the court’s not considering it at the time of the offer, so how can Lab now object, if the court may have stated in his conclusion that upon considering all the evidence admitted and offered, the court considered such evidence in one of his conclusions. If the trial court did consider the evidence, it was harmless. Lab has the burden to show that the rejection of the preferred testimony was error and that it was reasonably calculated to cause and probably did cause rendition of an improper judgment. This, they did not do. Texas Rules of Civil Procedure, rule 434; Gordon v. Aetna Casualty & Surety Co., 351 S.W.2d 602 (Tex.Civ.App.1961, writ ref.).

After reviewing all of the points presented by appellant Lab and finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.

GREEN, Chief Justice, and SHARPE, Justice.

We concur in the affirmance. We find that the record is sufficient to sustain the trial court findings of fact and conclusions of law upon which the judgment is based.


author: McDONALD, Chief Justice.

text:
    Troy Alvie LEATHERS, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
    No. 4245.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Rehearing Denied July 16, 1964.

      James F. Greer, Dunnam & Dunnam, Waco, for appellant.
    Jones, Boyd, Westbrook & Lovelace, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a Summary Judgment that plaintiff take nothing, in a Workmen’s Compensation case.

Plaintiff alleges that he was injured by a switch blowing up in his face on November 11, 1954; and that such injury caused him to have severe dizzy spells commencing about 6 months after the accident, and which resulted in total and permanent incapacity thereafter. Plaintiff filed his claim with the Board on July 25, 1962.

Plaintiff alleged that “at the time of said injuries and up until the time he began having dizzy and blackout spells, he believed and was informed by physicians that he had no injury of any serious or disabling nature, and upon the outset of said dizzy and blackout spells up until a few days before the filing of his claim herein, he believed and was informed by physicians that said dizzy and blackout spells were caused by a heart condition which was congenital and had no connection with said injuries, and upon finding out otherwise a few days prior to the filing of his claim herein, he immediately contacted attorneys and they immediately prepared his claim and filed same * * * and all of the above facts constituted and are good cause for not filing said claim until the date that same was filed.”

Defendant insurance company answered, denying that plaintiff had good cause for failing to file his claim within 6 months, as required by the Workmen’s Compensation Act.

Defendant thereafter filed Motion for Summary Judgment, asserting there was no genuine issue as to any material fact, and that from the pleadings and depositions on file, plaintiff was as a matter of law, without good cause, in failing to file his claim within 6 months from the date of injury.

The Trial Court granted such motion and entered judgment that plaintiff take nothing.

Plaintiff appeals, contending the Trial Court erred in granting defendant’s Motion for Summary Judgment.

The record consists of the pleadings, motion, judgment and the depositions of Dr. Dulaney and the plaintiff.

Dr. Dulaney’s deposition reflects that plaintiff was injured November 11, 1954 when an electric switch blew up; that plaintiff was treated at Hillcrest Hospital by Dr. Marstaller; that thereafter, in January, 1962, plaintiff was treated for blackout spells by Dr. Wooley, and that Dr. Dulaney saw plaintiff in March, 1962 as a followup on the blackout spells, and a heart abnormality that plaintiff had developed.

Plaintiff’s deposition reflects that he had a 7th grade education; that he went to work at Universal Atlas Cement Plant in 1950; that on November 11, 1954, while on the job, an electric switch blew up in his face; knocked him to the floor and burned his face; that he was taken to Hillcrest Hospital, treated and left overnight; that he went back to work the following afternoon; that afterwards he was off work with a fainting spell; that he went to Dr. Marstaller; that Dr. Marstaller said he had a light heart condition; that he had dizzy spells once or twice a month from the latter part of 1954 on; that he was laid off by Universal Atlas in July, 1962; that thereafter his brother told him there might be a connection between his blackout spells and his 1954 accident; that he went to a lawyer the next day or so after talking to his brother; that before his brother told him, no one had ever told him or caused him to believe the 1954 accident had anything to do with the blackout or dizzy spells; that he never had any reason to believe that they had until that time; and that he had relied on what the doctor had told him.

It is the duty of the court hearing a Motion for Summary Judgment to determine if there are any issues of fact to be tried, and not weigh the evidence or determine its credibility. The underlying purpose of Rule 166-A is elimination of patently unmeritorious claims or untenable defenses; it not being intended to deprive litigants of their right to a full hearing on the merits of any issue of fact. The burden of proving there is no- genuine issue of any material fact is upon the movant, and all doubts as to the existence of a genuine issue as to a material fact miist be resolved against the party moving for a summary judgment. The court accepts as true, all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drazvn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Tigner v. 1st Nat. Bank, 153 Tex. 69, 264 S.W.2d 85; Flowers v. Central Power & Light, C.C.A. (n. r. e.), 314 S.W.2d 373; Gaines v. Hamman, Sup. Ct., 358 S.W.2d 557.

The issue here made is whether or not plaintiff had good cause in failing to file his claim within 6 months after the date of his injury.

The existence or non-existence of good cause in failing to file claim within 6 months after injury is generally a fact issue. Hawkins v. Safety Cas. Co., 146 Tex. 381, 207 S.W.2d 370. The foregoing case holds that no set rule can be established for measuring diligence in filing of the claim, and that each case must rest upon its own facts; that the delay in filing is an element of prudence to be considered by the trier of facts in determining the question of good cause.

The bona fide belief by claimant that his injuries were not serious is sufficient to constitute good cause for delay in filing of claim; and we think plaintiff’s belief that his injuries were not connected with his accident in 1954, but rather were caused by his heart, makes for an issue of fact as to whether or not good cause existed in not filing his claim within the 6 months. See Texas Cas. Ins. Co. v. Crawford, C.C.A. (n. w. h.) 340 S.W.2d 110; Texas. Emp. Ins. Ass’n. v. Fowler, C.C.A., W/E Ref., 140 S.W.2d 545.

In the instant case plaintiff pleads that he didn’t know his injuries were serious up until the onset of the dizzy and blackout spells; and that after the onset of his dizzy and blackout spells he believed and was informed by his doctor that such were caused by a heart condition. The deposition of Dr. Dulaney contributes nothing on the issue of good cause; and plaintiff’s deposition, we think, supports plaintiff’s assertion of good cause. There is no deposition or affidavit negating plaintiff’s assertions of good cause. If any conflicting inferences may be drawn, then a fact issue is presented. Gaines v. Ham-man, supra.

We think that under the record here, reasonable minds could differ on whether plaintiff had good cause to delay filing his claim, and that it is a question for the trier of fact to determine, and cannot be resolved by summary judgment.

Reversed and remanded.


author: CLAUDE WILLIAMS, Justice.

text:
    Letha Bethel SIMPSON, Appellant, v. Eloise SIMPSON, Appellee.
    No. 16357.
    Court of Civil Appeals of Texas. Dallas.
    June 19, 1964.
    Rehearing Denied. July 17, 1964.

      Erhard, Cox & Ruebel, Dallas, for appellant.
    Carter, Gallagher, Jones & Magee and Ben T. Warder, Jr., Dallas, for appellee.

      . Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124; L.R.A.1915-E 1; Genesis 2:24.

   CLAUDE WILLIAMS, Justice.

Letha Bethel Simpson brought this suit to establish and recover her undivided interest in the estate of Charles J. Simpson, deceased. She alleged that she was lawfully married to Charles J. Simpson (hereinafter referred to as decedent) on March 5, 1913 and remained his lawful wife until he died in December 1960. Plaintiff named Eloise Simpson as defendant, alleging that she was a putative wife of Charles J. Simpson at the time of his death, and was in physical possession of the property sought to be recovered by plaintiff. Defendant answered, asserting a general denial as well as affirmative defenses of laches, estoppel, res judicata, and limitations. Defendant then filed her motion for summary judgment which plaintiff opposed. The court, based upon supporting affidavits and depositions, sustained defendant’s motion for summary judgment and plaintiff brings this appeal.

FACTS

Marriage, a status said to be of divine origin, is the pedestal around which the facts of this case revolve. The historical background of this case covers almost a half century (1913-1960). Affidavits and depositions reveal the following as a chronological history of relevant events relating to appellant.

Appellant married decedent on March 5, 1913 in the State of Arkansas. To this union there was born on August 26, 1914 a male child, Floyd Charles Simpson. In February 1917 decedent left her saying that he was going away to work and would send for her. She never saw him since that time. The first she heard from him was thirty years later, in 1947. Appellant attempted to locate decedent during World War I by communicating with the “War Board” who told her they would try to find •decedent but such efforts were apparently fruitless. Appellant was never served with legal papers of any nature with regard to the decedent and appellant did not obtain a divorce or annulment from the decedent at any time prior to decedent’s death in 1960. In 1920, having concluded that decedent was dead, appellant married one O’Donnell and lived with him until 1930 when they separated. O’Donnell died in 1941. On December 14, 1941, still under the impression she was a feme sole, appellant entered into a ceremonial marriage with Morrill Adams and continued to live with him, as husband and wife, in the State •of Kansas, until this marriage was dissolved by court decree in 1954. In 1947, appellant was advised by her son that decedent was alive, living in Dallas, Texas, and married and had children by said marriage. Appellant, upon learning this information, •continued to live with Morrill Adams for a period of seven years at which time she obtained a divorce from him in 1954. Charles J. Simpson died on December 21, 1960 in Dallas, Texas. This action was instituted •on August 31, 1961.

Affidavits and depositions reveal the following chronological history of relevant ■events as to decedent and appellee Eloise .'Simpson. In 1924, approximately seven years after separating from appellant, decedent married Verda Mae Burton in Los Angeles, California. In applying for this marriage license, decedent certified that this marriage was his first marriage and that he was single, not divorced. Decedent and Verda Mae remained married until July 15, 1950 when she obtained a divorce from decedent. Three children were born to this union. In 1947 decedent located his son, Floyd Charles Simpson, in the State of Kansas, and visited with him in Dallas and elsewhere on several occasions. After the reunion of decedent and his son, Floyd Charles Simpson advised his mother concerning decedent’s residence in Dallas, as well as his present marital status. On one occasion during a visit between decedent and his son, decedent stated to Floyd Charles Simpson that he, decedent, had never secured a divorce from appellant. In 1950 Verda Mae obtained a divorce from decedent in Dallas County. In 1950 decedent married appellee and such marriage continued until the date of decedent’s death in December 1960. No children were born of this union. The official records of Los Angeles County, California, Denver County, Colorado, Tarrant County, Texas, and Dallas County Texas, the only places in which decedent lived from 1924 until the date of his death in 1960, reflect that decedent never procured an annulment or divorce from appellant.

OPINION

By her first point on appeal appellant contends that the trial court erred in granting appellee’s motion for summary judgment for the reason that the record conclusively shows the existence of a genuine fact issue as to whether the appellant was lawfully married to decedent from 1913 until the date of decedent’s death in 1960. By her counter points, appellee contends that the summary judgment was proper because the evidence presented does not overcome the presumption of the validity of the marriage between decedent and appellee. She also contends that the statement of Floyd Charles Simpson in his affidavit that his father told him in 1948 he had never secured a divorce from his mother, appellant, is not a statement of a fact that would be admissible as evidence as required by Rule 166-A(e), Texas Rules of Civil Procedure.

The institution of marriage is a status, more than a mere contract, and has been defined as the voluntary union for life of one man and one woman as husband and wife, to the exclusion of all others. 38 Tex.Jur.2d, pp. 28-29, Sec. 1; Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124. It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality. One of the strongest presumptions of law is that a marriage, once being shown, is valid. However, as here, on proof of a second marriage by a party to a prior marriage, the question is presented as to whether a presumption of validity will attach to the second marriage. The generally accepted view is that a second marriage will be presumed to be valid and that such presumption is stronger than and overcomes the presumption of continuance of the prior marriage. 38 Tex.Jur.2d, pp. 89-91, Sec. 44; 14 A.L.R. 2d 10-11; Dockery v. Brown, Tex.Civ.App., 209 S.W.2d 801; Texas Employers’ Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371; Watson v. Todd, Tex.Civ.App., 322 S.W.2d 422.

However, such a presumption, strong though it may be, is a rebuttable one. Nixon, et al. v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560; Kinney v. Tri-State Telephone Co., Tex.Comm.App., 222 S.W. 227; Floyd v. Fidelity Union Casualty Co., Tex.Civ.App., 13 S.W.2d 909. While it has been held that the presumption of validity of a subsequent marriage may be rebutted only by evidence that negatives every possible method by which the prior marriage could have been dissolved (Texas Employers Ins. Ass’n v. Gomez, Tex.Civ.App., 313 S.W.2d 956) it has been ruled, with equal force, that in order to rebut the presumption of legality of the second marriage such need not be established absolutely or to a moral certainty, the plaintiff only being required to introduce sufficient evidence, standing alone, to negative such facts, in which case the weight of the evidence would be for the jury. Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863; Dockery v. Brown, Tex.Civ.App., 209 S.W.2d 801; Woods v. Hardware Mutual Casualty Co., et al., Tex.Civ.App., 141 S.W.2d 972.

The question as to whether the discharge of the lawful presumption of the validity of the second marriage, as opposed to the first, is a question of law or one of fact, was before the court in Adams v. Wm. Cameron & Co., Tex.Civ.App., 161 S.W. 417 and the court utilized this significant language:

“While it is true that, to sustain the validity of a marriage shown to have been contracted, a presumption will be indulged that one of the spouses was divorced from a spouse living at the time it was contracted, the presumption is not a conclusive one. ‘If,’ said the court in Stooksberry v. Swan (Sup.) [85 Tex. 563] 22 S.W. [963] 967, ‘the law declares the weight that shall be given to certain evidence, a court may so inform a jury; but, if that may be overthrown by other evidence, then it becomes the duty of the court, if evidence tending to a contrary conclusion be introduced, to leave the whole question of fact to the jury.’ And see Hammond v. Hammond, 43 Tex.Civ.App. 284, 94 S.W. 1067, 1068, where the court, in disposing of a contention that the jury should have been instructed that it was a presumption of law that the party had been divorced from his first wife, shown to have been alive when the second marriage was contracted, said: ‘Whatever might be the right of a jury to indulge such presumption as a matter of fact, we cannot sanction the contention that the presumption exists as a matter of law.’ ”

Appellee argues forcefully that the language of the Supreme Court in Texas Employers Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371 to the effect that the presumption is one of the strongest known to law, and is, in itself, evidence, and may even outweigh positive evidence to the contrary, is controlling in this case. With full recognition of the forcefulness of the language utilized by our Supreme Court we must not blind ourselves to the pertinent fact that we are here dealing with a motion for summary judgment and not a trial on the merits, as was the Elder case, supra. The familiar rule has been announced repeatedly that in determining the question ■of whether or not material issues of fact were raised by the evidence, the court, on review, must review all the evidence in the light most favorable to the petitioners; disregard the conflicts in the testimony; and indulge, in favor of the petitioners, every intendment reasonably deducible from the evidence. Any doubt that exists in the mind of the reviewing court must be resolved in favor of the party against whom the motion was granted. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Applying these rules to the factual situation here presented, we find that while appellant probably did not prove the continued existence of her marital relationship with decedent between 1917 and 1960 to a moral certainty, or beyond any doubt, yet she did introduce some evidence of probative force to negative the fact that her marriage to decedent had not been dissolved by divorce or annulment. While it is true that a jury weighing this evidence might be influenced greatly by the presumption of law relating to the validity of the second marriage, yet that is not the question for our decision. We must decide whether there are any facts in evidence in this record which would support appellant’s contention and thereby which should have been submitted to a jury or a court, as triers of fact. In our opinion appellant has satisfied the law by producing sufficient evidence in the form of affidavits and depositions to create an issue of fact as to the dissolution of the prior marriage. As to appellee’s counter point relating to the inadmissibility of the affidavit of appellant’s son in which he relates that in 1948 his father told him that he, decedent, had never divorced appellant, we believe that such affidavit was admissible evidence. We think it was within the exception to the hearsay rule which permits testimony concerning declarations about pedigree and family history. Texas Law of Evidence, McCormick & Ray, Vol. 2, Sections 1341— 1348, pp. 184 — 194, and cases there cited. Should we be mistaken in this regard, we feel that even without such affidavit appellant has met the burden imposed upon her to present sufficient evidence of probative force to create an issue of fact that should have been submitted to a jury. Appellant’s first point is sustained.

A defendant’s motion for summary judgment may also rest upon a clear demonstration by the record that the cause of action is barred, as a matter of law, by affirmative legal defenses such as estoppel, res judicata, laches, or limitations. McDonald, Texas Civil Practice, 1962 Cumulative Supplement, Sec. 17.26.1, p. 34, Notes 13-22. Appellant’s second and third points contend that appellee’s affirmative defense of estoppel has not been established, as a matter of law. Appellee advanced the affirmative defense of estoppel in several forms, namely, equitable estoppel or estoppel in pais and judicial estoppel. On the issue of judicial estoppel appellee contends that the record is without dispute that appellant obtained a divorce from Morrill Adams by court decree in the State of Kansas in 1954 and in her petition seeking that decree she made the affirmative statement that she and Morrill Adams were husband and wife and had been legally married in 1941. Such pleading was verified by appellant and the decree of divorce was granted upon such pleading. Appellee contends that having bound herself by such statement relating to a valid marriage in Kansas she is now estopped from contending in the Texas action that she is the un-divorced wife of the decedent. In opposition to this position appellant contends that when she discovered, in 1947, that Charlie Simpson was alive she made no effort to separate from her present husband, Mor-rill Adams, because she “supposed that Charlie was divorced.” Appellant further contends that the burden of proof was upon appellee to support her affirmative legal defense by proof demonstrating same, as a matter of law, and that in this regard appellee has failed. She contends that the necessary elements to establish estoppel are not present in that appellee has failed to prove conclusively that decedent had full knowledge that his marriage to appellant was never dissolved; that there is no proof that appellant had any knowledge of the divorce action between decedent and Verda Mae Simpson; there is no proof that appellant, at the time she obtained a decree of divorce in 1954, had any knowledge that appellant’s marriage to decedent had not been dissolved. Moreover, appellant contends that appellee failed to offer any proof that appellee relied in any manner upon any representation by appellant or that ap-pellee sustained any injury, all being necessary elements of estoppel. We agree with appellant.

Our Supreme Court in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, citing 31 C.J. S. Estoppel § 121, p. 390 [now 31 C.J.S. § 121, p. 649], distinguishes the elements of judicial estoppel as opposed to equitable es-toppel, saying:

“The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance- and injury essential to equitable estoppel need not be present. ‘Under the doctrine of judicial estoppel, as distinguished from equitable estoppel by inconsistency, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.’ ”

The Supreme Court in discussing mistake as an excuse for prior inconsistent judicial statement, said:

“Knox gained the advantage of preventing the property from being sold. Having thus sworn under oath in this judicial proceeding that his wife owned the property in her separate right he would not be heard now to maintain a contrary position in the absence of proof that the averment was made inadvertently or by mistake or by fraud or duress. There was not only no proof of this character but rather the evidence shows conclusively that the affidavit was made voluntarily, with full knowledge of all the facts and with the intention to prevent satisfaction of the judgment against him.” (Emphasis supplied.)

In view of these rules, and the record here presented, we do not believe that' the defense of judicial estoppel has been established, as a matter of law, so as to justify the granting of the summary judgment. Appellant introduced testimony that she was mistaken in her belief that she was the legal wife of Morrill Adams at the time she filed her divorce suit in Kansas. She believed, at that time, that her former husband had divorced her.

As to the question of equitable estoppel or estoppel in pais, the essential elements, were discussed by our Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 wherein the court said:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S. Estoppel § 67, page [402] 2S4. Also, ‘Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the parties sought to be estopped, it forms no estoppel.’ Id. [31] C.J.S. [Estoppel] § 77, page [456] 282, et seq.
“We do not believe all the essential elements of estoppel are established by the record as presented to the court on the motion for summary judgment, and that a fact question was raised as to the estoppel.”

Here, likewise, fact issues are presented on the issue of equitable estoppel. The record is silent as to any false representation appellant made upon which appellee relied. Admittedly appellant knew, at the time she obtained her divorce from Adams in 1954, that Simpson was alive and living in Dallas. Even so, there is no evidence, or at least a fact issue is presented, as to whether appellant had knowledge that decedent was her lawful husband during that period. There is no proof that appellant had knowledge of any kind or nature of the divorce action between Verda Mae Simpson and decedent. Appellant presents a factual situation in her contention that she relied upon a mistaken belief that her first husband had divorced her many years ago. We do not rule upon issues of fact. We merely hold that issues of fact to support the affirmative defense of equitable estoppel are present and which should have been submitted to a trier of fact for determination. Appellant’s second and third points are sustained.

By her fourth and fifth points appellant contends that the record conclusively shows the existence of a genuine issue of fact as to appellee’s defense of laches. Appellant says that since appellee offered no proof either of unreasonable delay or injury to appellee caused by such alleged delay that the defense is not established, as a matter of law. The defense of laches presents more than a question of mere delay. Such delay must work a disadvantage to another. 35 Tex.Jur.2d, Sec. 10, p. 470. Moreover, whether a person has been guilty of unreasonable delay in seeking to protest and enforce his rights is ordinarily a question of fact. 35 Tex. Jur.2d Sec. 16, p. 475. Appellee contends that appellant having discovered in 1947 the decedent’s whereabouts she was immediately confronted with an obligation to prosecute her claim for an interest in his property and that, having delayed such action until 1961, she is, as a matter of law, guilty of laches. This action is against appellee individually and not in her representative capacity, and there is no evidence of injury to appellee caused by the alleged unreasonable delay. Furthermore, there is a factual dispute presented by appellant’s deposition to the effect that she proceeded under the mistaken idea and belief that decedent had divorced her. The issue was one for a jury. Appellant’s fourth and fifth points are sustained.

In her sixth and seventh points appellant contends that the record conclusively shows the existence of a genuine issue of fact as to appellee’s defense of res judicata. Appellee, in her pleadings, alleged the defense of res judicata arising from the divorce decree in the year 1950 in the case of Verda Mae Simpson v. Charles J. Simpson and also res judicata arising from the divorce suit in 1954 styled Morrill Adams v. Letha Adams in the Kansas court. Appellant was not a party to the first proceeding. Appellee was not a party to the second named proceeding. The decision of the court in Verda Mae Simpson v. Charles J. Simpson was to the effect that Verda Mae Simpson was entitled to a divorce and property settlement. Since appellant was not a party to that proceeding she is not bound by that judgment. The issue in that case was not the marital status between appellant and decedent, but simply the marital status between decedent and another of his wives. The case of Morrill Adams v. Letha Adams, in Kansas, determined certain marital and property rights between Adams and appellant, but did not adjudicate any marital rights or property rights between appellant and decedent.

For a judgment in one suit to bar the bringing of a subsequent one, there must be identity in the thing sued for, identity of the cause of action, identity of persons and parties to the action, and identity of quality in the persons or parties. 34 Tex.Jur.2d, Sec. 492, p. 546. Appellant’s sixth and seventh points are sustained.

By her eighth and ninth points appellant contends that the record demonstrates a fact issue as to appellee’s defense of limitations. Specifically, appellee asserted the four year statute of limitations (Art. 5527, Vernon’s Ann.Civ.St.) based upon the dates of the divorce decrees in the cases of Verda Mae Simpson v. Charles J. Simpson and Morrill Adams v. Letha Adams, and further, the two (Art. 5526, V.A.C.S.) and four year statutes of limitations based upon appellee’s acquisition of the title to property before the filing of this suit. Both limitation statutes provide for the commencement of the action enumerated therein within the prescribed period “after the cause of action shall have accrued.” (Emphasis supplied.) As to any possible cause of action against decedent there is an issue of fact presented as to the accrual of such right, appellant contending she was laboring under a mistake of fact as to decedent’s marital status. Verda Mae Simpson is not a party to this case and we are not therefore concerned with any possible cause of action which may exist as between her and appellant. As to the instant caitse against appellee it was instituted within a year after decedent’s death and appellee was charged with detention of that portion of his estate claimed by appellant. We therefore hold the defense of limitation not established as a matter of law. Appellant’s eighth and ninth points are sustained.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    B. DUNCAN et al., Appellants, v. James Troy WOOLF, Appellee.
    No. 16552.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 17, 1964.

      Spence, Martin & Richie, and Gene Richie, Wichita Falls, for appellants.
    Prothro & Sellers and Lee Sellers, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

This is an appeal by defendants B. Duncan, his wife, and his son J. C. Duncan from a judgment entered in behalf of plaintiff James Troy Woolf. The judgment decreed transfer to him of title to two parcels of rural real estate which B. Duncan and wife had contracted in writing to convey to him by a lease contract containing an option to purchase, dated June 15, 1961.

Judgment is affirmed.

Plaintiff’s right to recover in this case lies in his right to impress a constructive trust as to one parcel of realty, a 135 acre tract hereinafter termed the Donald property, and, as applied to a separate 280 acre tract, hereinafter termed the Wright property, lies in whether B. Duncan and his wife made out a prima facie case establishing that any of it was part of their “homestead” on June 15, 1961, and, if it had then been a part of their homestead, that it had not thereafter ceased to be such.

We have concluded that plaintiff established his right to have a constructive trust impressed upon the Donald property under answers returned by the jury which settled the question factually. We are furthermore of the opinion that B. Duncan and his wife failed, as a matter of law, to prove that the Wright property or any part thereof was their homestead on the material date, or, — if we be mistaken in respect thereto, — we are of the opinion that between such time and the time of the trial it was conclusively established that there "had been an abandonment of such property as the homestead. As applied to the Wright property the jury found in answer to special issues that B. Duncan and his wife used and occupied some portion of the Wright property as a homestead on and immediately prior to June 15, 1961 and that they did not abandon such as a homestead at any time after that date. These findings were disregarded by the trial court upon motion of the plaintiff.

On or prior to May 2, 1963 plaintiff decided to exercise his option to purchase. It was then discovered that B. Duncan and his wife intended to refuse to convey the properties. It furthermore seems to have become apparent at about the same time that J. C. Duncan, with concurrence of his parents, B. Duncan and wife, had caused the record title to the Donald property to be conveyed to him. This record title stood in the name of third persons and not in B. Duncan and/or his wife. Record title to the Wright property stood in B. Duncan and his wife on June 15, 1961, and at all times since that date. Formal notice by plaintiff to B. Duncan and his wife of plaintiff’s election to exercise his option to purchase was served on May 2, 1963. The suit followed.

While_ not essential to be noticed in connection with resolving the legal questions, it is interesting to note that a portion of the mineral interest under the Wright property was contemplated to be conveyed under the lease and option contract. Before plaintiff made his election to purchase, an ■oil well had been brought in on the property.

THE DONALD PROPERTY

On and prior to June 15, 1961 B. Duncan and his wife lived in a house on the Donald property. The origin of their residence and use thereof lay in a lease arrangement made some time in the 1930’s with Paul Donald, owner of the property. Some 12 or 13 years prior to date of the trial Paul Donald and B. Duncan had entered into an agreement of sale and purchase of such property for a consideration of $3,600.00. The deed thereto was to be delivered when the property was completely paid for. Thereafter the sum of $250.00 a year was paid to Donald by Duncan, such payments having been agreed upon by B. Duncan and Paul Donald as interest on the unpaid purchase price.

In reliance upon validity of that purchase Duncan thereafter made valuable improvements on the land. His action was with the knowledge and consent of Paul Donald. It is actually uncontradicted that on June 15, 1961, when the lease contract was made, B. Duncan and his wife were residing on the tract as its owners by virtue of this parol sale. Paul Donald was the only party who might assert that there was not a valid conveyance made between the parties under the parol contract. He never made such assertion. He appeared and testified on the trial of the case during the course of which he affirmed the sale and acknowledged that the sum of $250.00 a year thereafter paid to him by the Dun-cans represented interest on the unpaid purchase price (or unpaid portion of the purchase price).

On or about May 30, 1963 Paul Donald, for and in consideration of the payment of the portion of the purchase price for the Donald property then due to be paid under the contract aforesaid, executed and caused to be executed deeds which conveyed the legal title thereto to J. C. Duncan. Mr. Donald did this at the solicitation of J. C. Duncan, and, under the jury findings returned at the trial of plaintiff’s suit, with the knowledge and consent of B. Duncan. The representation made to Paul Donald by J. C. Duncan at the time the former agreed to have the record title thus transferred was that “his father was getting old, and if it was all right * * * just deed it to him * * Paul Donald was aware of the dispute existent at such time between plaintiff and the Duncans. Subject thereof was part of the discussion between him and J. C. Duncan. The latter expressed the opinion that the option portion of plaintiff’s contract was not enforceable.

It is positively established in the evidence that on and after June 15, 1961 J. C. Duncan was fully acquainted with the lease contract and all the provisions thereof, particularly the option to purchase section. Prior to the date of any deed to J. C. Duncan plaintiff had already served written notice upon the elder Duncans of his election to exercise the option to purchase.

We believe one proper way to resolve the question of whether J. C. Duncan should be held as a trustee of the Donald property, under the theory of constructive trust, would be to initially treat the antecedent interest in the property as having undoubtedly been vested in the parents of J. C. Duncan. We later discuss the matter of the true interest therein of B. Duncan and his wife, and the determination of whether theirs was the equitable title.

In Restatement of the Law, Trusts, § 288, "Transferee with Notice”, it is stated that where the transferee of an interest in trust property has notice that the party making the transfer to him is a trustee who is committing a breach of his trust to a third person in making the transfer, the transferee does not hold the property free of the trust, although he paid value for the transfer.

We proceed, therefore, to the matter of whether B. Duncan and his wife held the equitable title to the property, and as such were entitled to the legal title upon fulfillment of all obligations made a prerequisite to the maturing of their right.

We have no doubt but that B-Duncan and his wife, with respect to their interest in the Donald property, did undertake to stand in the position of trustees for the plaintiff, conditioned and contingent upon the plaintiff exercising his right of purchase granted under the option. That such is correct law does not seem to be a matter at issue between the parties. The issue which is made appears to be predicated upon the altered circumstances existent because (1) the record title to the Donald property, as of June 15, 1961, did not stand in the name of Paul Donald, the only party of whom B. Duncan and his wife might demand legal title, (2) that B. Duncan and his wife never did demand or receive legal title from Paul Donald, and (3) that B. Duncan and his wife were never legally competent to discharge their purported obligation to deliver title to the plaintiff. J. C. Duncan contends that in view of these circumstances he was lawfully entitled to receive, as he did, the complete title from the parties holding the same (albeit with the knowledge and consent of his parents), not only free and clear of any charge laid upon the same by his parents — but free and clear of the claim of any other person by and through them, i. e., by anyone to whom they might have been obliged to deliver the title to the property had that ever come within their power.

The trouble with the contention of J. C. Duncan is that it is clear from the record that his parents had the beneficial ownership of the record at all material times. They had the undoubted right to receive, the deed instrument evidencing a complete title upon a delivery by them of the unpaid balance of the agreed purchase price at the very time he received the deeds. It is true that but for the beneficial interest in the same property existent in the plaintiff (pursuant to the contract of June 15, 1961) and "tacked on” to the elder Duncans’ beneficial interest (with full knowledge and consent of J. C. Duncan), they would have been entitled to yield their rights in the property in favor of their son —through their consent that it he deeded to him. That is what they attempted to do. To permit such to be effective, however, would be to eliminate the beneficial interest in the property belonging to the plaintiff. That was not within their power, absent the consent of plaintiff, so long as his contractual rights persisted.

It must be remembered that J. C. Duncan was at all times fully informed of the rights of the plaintiff, by reason whereof he never became a bona fide purchaser for value. He was guilty of tort, since in committing the act or acts which resulted in the delivery of the record title to him he was aware that he was interfering with the interests of the plaintiff and depriving him of property which he otherwise would have received. B. Duncan, and perhaps his wife, were likewise guilty in collusion with him. A remedy of the plaintiff, as beneficiary, would be to have it judicially declared that J. C. Duncan held title to the property as a constructive trustee for him. This declaration was a part of the judgment.

There are numerous sections to be found in Restatement of the Law, Restitution, in which the law is clarified. Some of these are: § 123, "Bona Fide Transferee Who is Not a Purchaser for Value”; § 126, “Rights of Intended Payee or Grantee. Business Transaction”, (comment c.); § 133, “Property Tortiously Acquired From Third Person at Another’s Expense”; § 138, “Violation of Fiduciary Duty”; § 168, “Wrong by Transferor to Third Person” (comment on subsection (1) b.). Cases bearing upon applicable law include: Edwards v. Strong, 207 S.W.2d 655 (Fort Worth Civ.App., 1947), and opinion modifying at 147 Tex. 155, 213 S.W.2d 979 (1948); Alexander v. Harris, 254 S.W. 146 (Fort Worth Civ.App., 1923, error refused); Mansfield v. Wardlow, 91 S.W. 859, 863 (CCA, Tex.1906, error refused), citing from Pomeroy Equity Jurisprudence concerning how one may make himself a mala fide purchaser; McGowen v. Montgomery, 248 S.W.2d 789, 791 (Amarillo Civ.App., 1952, no writ); and Hill v. Stampfli, 290 S.W. 522, 524 (Tex.Com.App., 1927, with holdings on question approved by Supreme Court).

THE WRIGHT PROPERTY

This property abutted the Donald property, and contained 280 acres of land. At all material times, beginning some time prior to date of June 15, 1961, title to this property was vested in B. Duncan and his wife. B. Duncan and wife assert that the eastern 199 acres thereof was their “homestead” under provisions of our state Constitution, on and prior to date of June 15, 1961. They also contend that its homestead character continued at all times subsequent, to and inclusive of the date of the trial. Mrs. Duncan refused to sell (as is the right of any wife under our laws, whether or not any antecedent contract to convey might have been made), and the Duncans undoubtedly would be entitled to defeat the plaintiff’s suit for specific performance of the contract to convey real property if they have made out a prima facie case under the aforesaid contentions.

We do not believe that there was sufficient probative evidence that any part of the Wright property (a portion of which being the only part of the whole of their estate claimed as a homestead found by the jury to have constituted such) was the parties’ homestead on June 15, 1961. We are not, however, confined to such question.

On and after their contract with the plaintiff on June 15, 1961 B. Duncan and his wife owned more than 200 acres of land immediately south and across the road from the Donald and Wright properties. We will refer thereto as the Hill County School land. It was contemplated at the time of the contract with the plaintiff that they would build themselves a new home on this land. They were given 60 days from date of the contract to accomplish this before they were obliged to move. Such was part of the provisions of the contract. They did construct their new home and did move onto the Hill County School Land before the expiration of the 60 day period. They resided thereon ever since that time. In order to make up the total of 200 acres which could be claimed as the rural “homestead” they claimed the acre of land on which their house was situated.

At no time prior to June 15, 1961 did either B. Duncan or his wife ever file or make any statutory form of declaration of any property as their homestead. After the suit was filed they formally declared and claimed, for the first time, that 199 acres out of the Wright property and the one acre on the Hill County School land comprised such. Prior thereto, for the calendar year 1960, the records of the tax assessor reflected a claim of such character having been made by one of them as to the Hill County School land for tax purposes. Both Duncans denied having made the claim or declaration.

There was no evidence of any “intent” at any particular time antecedent to June 15, 1961 to make any portion of the Wright property a part of the homestead of B. Duncan and his wife. Neither was there any proof of acts or conduct which evidenced such “intent”. Be that as it may, and with assumption made for the purpose of discussion that any part of the Wright property (subject of the jury’s finding) was a part of the parties’ homestead on June 15, 1961, we are convinced that the evidence was conclusive and established as a matter of law that there was an abandonment thereof when the Duncans leased the land for ten years with an option to purchase the same, constructed a new home on the Hill County School land, and moved thereon.

The real question for determination is whether B. Duncan and his wife raised as a question of fact the matter of whether any portion of the Wright property was used and/or occupied as their homestead on and immediately prior to June 15, 1961, —and if so, whether they abandoned it as such at any subsequent time. All of this property was included in the lease contract with the plaintiff. If it was not imbued with the “homestead” character at the time it was executed, or, if it had such character at such time but was changed because of a subsequent abandonment, the Duncans’ claim of right to avoid the obligation' reflected in the option portion of the contract with the plaintiff must fail, and plaintiff would be entitled to specific performance. In so concluding we disregard any possible complication through the question occurring in our mind relative to whether plaintiff’s right of recovery by his suit must prevail as to both the Wright and Donald property if at all. In any event our decision on the whole case is that plaintiff is entitled to prevail as to both properties.

The jury did find for B. Duncan and his wife that a portion of the Wright property was their homestead on June 15, 1961, and that it was not thereafter abandoned. Therefore, if there was a jury question plaintiff must lose his case. If not, as the trial court concluded when the jury’s answers were disregarded, plaintiff has rightfully prevailed as a matter of law.

When the court prepared the charge plaintiff objected to the submission of the questions aforementioned, on the ground that there was no evidence or in any event insufficient evidence to justify any affirmative answers returned thereto. The motion to disregard the answers as returned was of course upon the contention that they had no support in the evidence. On hearing the motion for judgment the court found that they had no support, hence disregarded them in entering judgment for the plaintiff. We agree with the finding.

The Constitution itself provides in cases of the “homestead”, rural or urban, that “the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.” Article 16, Sec. 51, Vernon’s Ann. St True it is, under the same Constitutional provision, that there may be a “temporary” renting of homestead property without a change effected in its character when no other homestead has been acquired. With reference thereto it is stated in 28 Tex.Jur.2d 514, Homesteads, § 112, “Rural homestead”, as follows: “A temporary renting of a rural homestead will not destroy its homestead character. But if a lease of a rural homestead is not merely a temporary renting, the effect of leasing it is to render the homestead claim unsustainable.”

The evidence in the record makes it clear that B. Duncan was seventy-three or seventy-four years of age at the time the property was leased to the plaintiff for a ten year period. Hence he knew that it was unlikely that he would personally be able to actively use the Wright property in his business, that of operating a dairy, at the conclusion of the lease period. Indeed, he sold to plaintiff all of his dairy equipment when he leased the property to him. Under these circumstances we believe that the Wright property under the authorities was not “temporarily” rented. We are of the opinion that the effect of the lease itself, coupled with plaintiff’s entry upon the property pursuant to its authority, rendered the homestead claim unsustainable as a matter of law.

Use of the property by Duncan and his wife for any “homestead” purpose was discontinued. Its character was changed in a “permanent” sense from a place for the home of B. Duncan and his wife, or as a place for the exercise of a calling or business by B. Duncan, as head of a family, — to property which served as an independent source of income to him from proceeds to be derived in the form of rent. This constitutes abandonment. To continue the homestead protection to property so used would be a perversion of the spirit, letter, and purpose of the Constitution. Blackburn v. Knight, 81 Tex. 326, 16 S.W. 1075, 1077 (1891); Alexander v. Lovitt, 95 Tex. 661, 69 S.W. 68 (1902); Warren v. Kohr, 26 Tex.Civ.App. 331, 64 S.W. 62 (1901, error refused); Wurzbach v. Menger, 27 Tex.Civ.App. 290, 65 S.W. 679 (1901, no writ).

Judgment is affirmed.