text:
    MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. Earlene HUDDLESTON et vir, Appellees.
    No. 16561.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 13, 1964.
    Rehearing Denied Dec. 11, 1964.

      William A. Thie, Denison, Friberg & Parish, and Elmer J. Parish, Wichita Falls, for appellant.
    Mock, Banner & McIntosh, and Jack Banner, Wichita Falls, for appellees.
   MASSEY, Chief Justice.

This case grew out of a railroad crossing collision between a train and a passenger automobile operated by Earlene Huddles-ton, hereinafter termed plaintiff. On jury findings convicting the defendant railroad company of negligence amounting to proximate cause and setting the amount of the damages thereby occasioned, judgment was rendered for the plaintiff and her husband. Therefrom an appeal was perfected.

Judgment affirmed.

In Higginbotham v. Ritchie, Tex.Civ.App., 367 S.W.2d 210 (1963, no writ hist.), we recently had occasion to discuss our interpretation of the doctrine of “sudden emergency”. In the verdict of the jury, as returned in this case, the plaintiff was found to have been confronted by a condition of sudden emergency when her automobile was approaching the railroad company’s tracks on the instant occasion, and that she thereafter acted as an ordinary prudent person would have acted in the same or similar circumstances. Although the manner of submitting the question did not exactly comply with our ideas of propriety no complaint thereof is presented in the defendant’s points of error. There is no contention that the question of sudden emergency is not in the case. We have no doubt but that such question was raised, assuming there was any negligence on the part of the plaintiff which she would excuse.

On the contributory negligence issues inquiring upon the matter of the plaintiff’s negligence the jury acquitted her in each instance. It would therefore appear that from the standpoint of legal consequence the question of sudden emergency was not arisen. It is only when the plaintiff invoking the doctrine is guilty of negligence sought to be excused that it is important to be treated as part of his or her case. But there are numerous points of error which are brought forward by the defendant railroad company in which complaint is made because the trial court failed and refused to submit other and additional special issues which inquire into the matter of plaintiff’s contributory negligence. We will therefore consider the case as though one, several, or even all the specially requested issues were submitted and answered favorably to the defendant, with “sudden emergency” properly treated as arisen and existent. This done, we would have had a jury verdict in which the plaintiff was found to have been guilty of contributory negligence (occurring after she was confronted with a condition of sudden emergency) proximately causing the. collision which occurred, but which negligence was nevertheless excused. The contributory negligence (considered as occurring under conditions of emergency) would be excused because the jury found that occurrence thereof was when and after the plaintiff was confronted with a sudden emergency and that although negligent her acts and omissions were nevertheless those of a person of ordinary prudence under the same or similar circumstances.

Under this hypothesis the plaintiff would have been entitled to recover under the findings of the defendant railroad company’s primary negligence though the requested issues had been submitted and found against her. The points of error, even if sustained, would have availed the defendant nothing. For this reason they are overruled.

Considering the specially requested issues as inquiries upon the matter of plaintiff’s negligence before the condition of emergency was arisen, and therefore not ■constituting an inquiry about the negligence thereafter occurring, we are of the opinion, and therefore hold, that in each instance the questions thereby posed merely constituted various phases or different •shades of controlling issues which were submitted. In such instances requested issues are properly refused. Texas Rules of Civil Procedure, rule 279, and commentaries under the rule in Vernon’s Annotated Texas Rules of Civil Procedure. For this additional reason the defendant’s points of error are overruled.

By its point of error No. 9 the defendant railroad company contends that the plaintiff failed to plead, .prove, and/or obtain a jury finding essential to the validity of the jury’s determination that the crossing where the collision occurred was .an extra-hazardous crossing, it being asserted by the point of error that the evi-lence established that the crossing, if extra-hazardous, was of temporary rather than permanent character. Were the point of error sustained, yet would it avail the defendant nothing for as support for the judgment there were other jury findings of which no complaint is made upon the defendant’s primary negligence. The point <of error is overruled as immaterial. T.R. C.P. 434.

By its point of error No. 1 the defendant railroad company complains that reversible error resulted because it was denied the right to introduce evidence showing that the crossing was not more than ordinarily dangerous through proof of the safety history thereof. In the discussion of the defendant’s point of error No. 9 we have demonstrated that from the standpoint of support for the judgment it was immaterial whether or not the crossing was extra-hazardous. It also follows that any denial of the right to introduce evidence on the question would likewise be immaterial. Error, if any, would be harmless to the defendant. T.R.C.P". 434. Furthermore, the record fails to support the premise upon which the defendant’s contention is made.

By its point of error No. 13 the defendant railroad company complains that reversible error resulted because the trial court, despite objection, permitted the plaintiff to impeach the defendant’s witness Claude Beavers by an alleged prior statement he had made to Bill Gowan, an investigator. Premise for complaint was asserted because the proper predicate for impeachment had not been laid before the evidence was permitted.

It is obvious from the defendant’s brief that it considers the testimony under examination as bearing upon the plaintiff’s contributory negligence and upon the question of extra-hazardous crossing. It is not contended that it has any bearing upon the primary negligence of which the jury’s verdict convicted the defendant railroad company. The nature of Beavers’ testimony reveals that it bore solely upon acts and omissions of the plaintiff after she was confronted with the sudden emergency the jury found existent. That being the situation, and the jury having found that from the plaintiff’s standpoint she was acting as a person of ordinary prudence under a condition of sudden emergency (whereby her negligence during such period was excused), the error, if any, would be harmless error. T.R.C.P. 434. On the matter of extra-hazardous crossing the error, if any, would likewise be harmless error under the same rule in view of our previously expressed holding that whether or not the crossing was extra-hazardous would be immaterial when the judgment would in any event be supported by other jury findings.

We finally discuss the points of error relating to the defendant’s contention that reversible error resulted because of statements made by the plaintiff’s attorney in the course of argument. There is no contention that the amount found as damages in the case was the result of passion and/or prejudice, so we may generally view the argument of which complaint is made as such may have had influence upon the jury as applied to the other jury findings.

In each instance of which complaint is brought forward the attorney for the defendant railroad company had objected at the time the argument was made, but his objection was overruled. The argument was therefore before the jury with the sanction of the trial court.

One instance of the argument about which complaint is made was of the character which would be calculated to inflame the minds of the jury against the defendant. Speaking with reference to the crossing, the attorney for the plaintiff said: “How many do you have to kill or run over before it becomes dangerous? How many human lives will have to be lost before this is called dangerous? I will tell you how notice can be brought home; by a jury finding that this is a more than ordinarily dangerous crossing, because it will go on file, and on record, that a jury of twelve good and true jurors of this County listened to the facts and circumstances involved in this case and held, and judgment was entered, that this was a more than ordinarily dangerous crossing, and that there should be a flashing signal there. And when that goes on file, and on record, then the world will know, and perhaps there will not be another gallon of blood shed at this crossing.” We here take occasion to comment that in all the argument the attorneys for both sides treated the crossing as one where no accident had theretofore occurred. Further, it is noticed from the evidence that little, if any, blood was shed by the plaintiff.

In two other instances of jury argument the nature thereof was such as to elicit sympathy for the plaintiff and plaintiff’s witnesses. In one instance counsel stated with reference to the plaintiff, as follows: “You had a chance to look at her. She is not any different from one of your wives or sisters. Was she sitting there lying to you?” In another instance counsel stated, as follows: “You judge the credibility of these witnesses. You judge, and you look Earlene Huddleston in the face when you come out of that jury room and say, ‘Earlene, you are a liar.’ You look everybody from Saint Jo in the face and say, ‘You all just came over here and swore to a pack of lies about the railroad. The train was really blowing the whistle, Mr. Sampson. You lied about that. The train was really blowing the whistle, Mr. Pittman. You lied about that.’ ”

We are of the opinion that the trial court should have sustained the objections made to the argument of which complaint is made. It was improper argument. The question for decision, therefore, is whether the jury’s reception of the argument constituted reversible error under T. R.C.P. 434. If we should believe, and hold, that a juror of ordinary intelligence would in the instant case have been persuaded by the argument to agree to a verdict contrary to that to which he would have agreed but for the argument, we would be bound to> declare the existent error to have amounted to reversible error. Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954). In the determination of such we are obliged to examine the whole record, applying tests upon the preponderance of the evidence. In Goforth v. Alvey, as in the instant case, the trial court overruled objections to the improper argument.

It is true that the argument in the instant case is of the type calculated to create passion and/or prejudice, a subject with which the Supreme Court dealt in Texas. Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858 (1954). Therein it was held that the true test is the degree of prejudice flowing from the argument. In other words, since objections to the argument were overruled in the instant case, the question is whether the argument, considered in its proper setting, was such as would have persuaded a juror of ordinary intelligence to agree to a verdict contrary to that to which he would have agreed but for its having been made. It would seem that the term “proper setting” would necessarily include the statement of facts.

The first of the leading cases upon the reversibility of judgments (under our Rules of Civil Procedure) because of improper argument was Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953). Therein it was stated that the question was to be determined “[i]n the light of the whole record”. In Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367, 370 (1954), it was stated that “the whole record” includes the statement of facts. The author of the opinion further stated: “If the evidence is such that we believe the jury would in all probability have rendered the same verdict that was rendered here, whatever the argument of the defendant’s counsel or lack of it, how can we logically say that the argument probably caused the rendition of an improper judgment based on that verdict?”

We have reviewed the statement of facts and the entire argument of the parties. Consideration given thereto, we do not believe that the improper argument was such as would in this case have persuaded a juror of ordinary intelligence to agree to a verdict contrary to that to which he would have agreed but for its having been made. In other words we believe that the jury, even without such argument, would have found the defendant railroad company guilty of primary negligence amounting to proximate cause, — would have refused to find the plaintiff guilty of contributory negligence amounting to proximate cause,— and would have found in answer to the issues submitted thereon that the plaintiff was acting in a condition of sudden emergency.

Judgment is affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice. HUGHES, Justice

license: Public Domain

text:
    Waggoner CARR, Attorney General of the State of Texas, Appellant, v. Oliver RADKEY et al., Appellees.
    No. 11238.
    Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1964.
    Rehearing Denied Dec. 9, 1964.

      Waggoner Carr, Atty. Gen., Austin, J. S. Bracewell, Ben M. Harrison and Wayne R. Rodgers, Asst. Attys. Gen., for appellant.
    J. C. Hinsley, Arthur P. Bagby, John C. Foshee, Allen, Ashton & Kidd, Austin, for appellees.
   ARCHER, Chief Justice.

This is a will contest participated in by the Attorney General by virtue of Article 4412a, Vernon’s Ann.Civ.St

The will is a holographic one and the jury, in response to issues, found that the will was wholly in the handwriting of the testatrix, but that the testatrix did not have testamentary capacity when the will was executed on December 28, 1936.

By the terms of the will bequests were made to the University of Texas for scholarships, effective at the date of the death of the third generation of the testatrix’s nieces and nephews. The Attorney General is prosecuting this appeal by virtue of the statute.

The will is as follows:

APPENDIX B

TYPEWRITTEN COPY OF HOLOGRAPHIC WILL OF DECEMBER 28, 1936, OF HATTIE W. HEWLETT.

The appeal is based on eight points of error and are that the court erred in not granting the motion for judgment non ob-stante veredicto, upholding the will of December 28, 1936; in refusing to instruct the jury that even though they believed the testatrix insane, if she executed the will during a lucid interval, they should find in favor of the testamentary capacity; in sustaining contestants’ objection to the testimony of Dr. Hoerster; in allowing contestants Miles and Radkey six challenges each to the jury over objections of appellant; in permitting Jack Hewlett, Administrator, to testify as to transactions with the decedent; in permitting contestants to introduce into evidence the order of the Probate Court finding testatrix of unsound mind; in not instructing the jury that less mental capacity is required to execute a will than to execute a contract; and finally, in overruling in part a Motion to Retax Costs.

The testatrix was about 62 years old when the wills were written in 1934 and had never married. She had accumulated in excess of $50,000.00 when she died on December 14, 1960 in a private sanitorium at the age of 86 years, some twenty-four years after the writing of the wills.

Miss Hewlett was taken to Brown’s Rest Home on December 7, 1936, and was there on December 28, 1936, the date of the last will, but had not been legally adjudged as a person of unsound mind until January 18, 1937 and J. T. Hewlett was appointed guardian of the person and estate of Hattie W. Hewlett and letters issued, etc.

On August 23, 1961, J. T. Hewlett filed his application to be appointed administrator of the Estate of Hattie W. Hewlett, deceased. The applicant alleged that Hattie W. Hewlett, deceased, left two instruments written wholly in her own handwriting, one dated April 17, 1936 and the other dated December 28, 1936; that in the opinion of applicant neither of the documents were written at a time the decedent, as such testatrix, was competent to make a will and suggested that under Article 4412a, Section 2, subd. a, V.A.C.S., that the Attorney General of Texas be made -a party. The then Attorney General entered a general appearance.

Oliver H. Radkey filed an answer reciting his kinship to the deceased and as a beneficiary under the wills and stated that such are not the wills of the deceased and not valid because Miss Hewlett was not of sound mind; and, pleading in the alternative, that if either of the wills was to be admitted to probate, that the will dated April 17, 1936 should be admitted.

Harriett Louise Brame Miles answered and opposed the probate of the will dated December 28, 1936 because the testatrix did not have the mental capacity to execute the will.

On June 8, 1962, the will dated December 28, 1936 was denied probate and. likewise the will dated April 17, 1936 was denied probate by the Judge of the County Court.

The Attorney General gave notice of appeal to the District Court in which trial was had with the aid of a jury and in answer to Issue No. 1, the jury answered the will dated April, 1936 was written wholly in the handwriting of Hattie Willie Hewlett and in answer to Issue No. 2 found that she did not have testamentary capacity.

In answer to Special Issue No. 4, the jury found that the will dated December 28, 1936 was wholly in her handwriting and in answer to Special Issue No. 5 found that the testatrix, Hattie Willie Hewlett, did not have testamentary capacity at the time she wrote the instrument.

Based on the verdict of the jury, it was ordered, adjudged and decreed by the Court that the applications for the probate of either or both of said wills be denied.

The Attorney General in his capacity filed a motion for judgment non obstante vere-dicto upholding the will of December 28, 1936, which was overruled.

It is the theory of the State that the will of December 28, 1936 was such as to necessarily, at least presumptively, imply testamentary capacity, but concedes that no Texas case has been found exactly in point on such position.

The State cites what is contended to be the rule as taken from 94 C.J.S. Wills § 63, p. 768, Lucid Intervals:

“ * * * When an insane person writes his own will in his natural manner, and the provisions are sensible, ■ proper, and judicious, the will itself proves that it was written during a lucid interval.” The same rule is stated in 57 Am.Jur. 102, § 96. .

The rule is also stated in 168 A.L.R. 1001, thus:

“When the will is established to have been made by a testator himself, unaided by others, and when its provisions and expressions are sage and judicious, containing nothing ‘sounding to folly,’ these facts establish a presumption, even in the case of persons habitually insane, that it was made during the existance of a lucid interval, and impose upon those who attach the will the burden of proving insanity at the moment when it was made * * *

The same rule is stated in Kingsbury v. Whitaker, 32 La.Ann. 1055, 36 Am.Rep. 278.

The rule is also laid down in the celebrated case of Cartwright v. Cartwright, 1 Phillim.Ecc. 90 (English Reports, Vol. 161, p. 927) as follows:

“ * * * the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself; that I look upon as the thing to be first examined, and if it can be proved and established that it is a rational act rationally done the whole case is proved * * * Here is the rational act rationally done. In my apprehension, where you are able completely to establish that, the law does not require you to go further, * * * ”

This was quoted in Von De Veld v. Judy, 143 Mo. 348, 44 S.W. 1117, which in turn was quoted approvingly in McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942, error dism.

The appellant asserts in his brief that an inspection of the will indicates that she probably had the advice and assistance of a lawyer or a law student, which would not bring the will under the holding in the Kingsbury case “unaided by others.”

The Court did not err in overruling the motion of appellant for judgment non obstante veredicto.

In Texas the burden to show testamentary capacity is on the proponent of a will to show by positive evidence.

Where the jury verdict in a will contest that deceased lacked testamentary capacity at time of execution of alleged holographic will was supported by evidence, the verdict was binding on the Trial Court and the Court of Civil Appeals. Greene v. Watts, Tex.Civ.App., 332 S.W.2d 419, no writ history.

By its second point the State contends that it was error for the Trial Court to refuse to instruct the jury to the effect that even if the jury believed that the testatrix was insane, if she executed the will during a lucid interval, they should find in favor of the testamentary capacity.

Appellant did not request in writing such an issue and did not tender “in substantially correct * * * explanatory instruction” as required by Rule 277, Texas Rules of Civil Procedure.

We have not had pointed out in the record and we have been unable to find any testimony that the testatrix had lucid intervals, and particularly on December 28, 1936.

There is extensive testimony given by those in charge of the Rest Home where she was staying as to the condition of testatrix as being highly excited and that she did not have lucid intervals in the month of December 1936. The second point is overruled.

The Third Point is that the Court erred in refusing to permit Dr. Hoerster to testify as to his opinion of Hattie W. Hewlett’s ability at the time she wrote the will bn December 28, 1936 to understand the business she was engaged in, the effect of her act, the objects of her bounty, the nature and extent of her property and to have memory sufficient to collect in her mind the elements of her act.

. There is no question that Miss Hewlett Suffered mental illness during her life and for some months prior to making the will in question. The issue to be determined by the jury was whether or not at the time she wrote the will she had sufficient mental ability to understand what she was doing as hereinbefore set out.

’ Appellant complains of the refusal of the Trial Judge to' permit Dr. Sam A. Hoerster, Superintendent of the State Mental Hospital, Austin, Texas, to answer a hypothetical question, giving his opinion of Miss Hewlett’s ability at the time she wrote the will. The question is long and we will not copy it, but in essence the question recited the history and behavior of the testatrix over a period of time and asked Dr. Hoerster if he had formed an opinion as whether the testatrix, at the time of the writing of the will, had sufficient ability to Understand the business in which she was engaged, the effect of her acts, realized what she was doing, knew her people and knew the property she owned.

The contestants objected because the doctor did not know the deceased and because the question asked omitted many .facts in evidence.

' ' We do not believe the appellants’ case was harmed by the Court’s ruling.

The doctor was permitted to and did give his professional opinion that the testatrix was of unsound mind — having a manic-depressive psychosis, with a tendency to remission period of absence of the illness. That a person of unsound mind includes persons who are able at times to understand the nature of their business, the relationship of their family and understand the effect of his acts in making a will.

Dr. Hoerster did testify in reply to a question propounded by the State as to his opinion as to whether or not Hattie Hewlett was of sound mind on December 28, 1936. He testified as follows:

“A Well, I think that this woman was of unsound mind, and I think that in —by that, I mean, I think she was mentally ill. But I also believe that she had had a type of mental illness which fluctuates from one end of the mood scale to the other. In other words, that she had periods of elation or manic behavior, and periods of depression; and that her thinking probably went along with her mood, and that at times, would be quite rational, and at other times, not; but this manic depressive — I would consider her to have had a manic depressive illness, psychosis. This is an illness of the mood or the feeling of how a person feels; and the thinking that accompanies this goes along with mood. Most of us recognize this in ourselves. If we are little depressed some morning, our outlook is not as good; and then if we feel pretty good, we don’t think we can do anything wrong. But it varies, and this may vary considerably. This usually does not affect memory except that it may, actually — some people, it might increase the memory potential when they are in an excited state, these patients. There are several other reasons why this woman, the description that I have heard, would fit into this category. Admittedly, all categories are empiric, in that they are generalizations. It is not like a pneumonia disease, but—we know exactly what the cause and effect is; but we do have a general idea about the categories, and I think that she was mentally ill, but was of this type that would have fluctuations in her mood, where she would be quite lucid and then sometimes she would be quite depressed, and then at other times be quite elated.”

Dr. Hoerster testified fully and at length and answered questions covering all the elements in the hypothetical question. The error, if any, was not such as was reasonably calculate to cause the rendition of an improper judgment in this case and is not reversible. Rule 434, T.R.C.P.

Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64.

We do not believe the Court was in error in allowing contestants Miles and Radkey six challenges each to the jury panel over the objections of the Attorney General.

Radkey applied for the probate of the April 17, 1936 will, which was contested by Miles. Under the pleadings, the jury could have been required to determine the issues between them. Each party to a civil suit is entitled to six peremptory challenges under Rule 233, T.R.C.P.

The Trial Court must rule on the number of challenges at the beginning of a trial and not wait until the issues have been cast.

Redburn v. Shield, Tex.Civ.App., 338 S.W.2d 323, error dism.; Ralston v. Toomey, Tex.Civ.App., 246 SW.2d 308, error ref., n.r.e.

In First Nat. Bank of Cuero v. San Antonio and A. Pass R. Co., 97 Tex. 201, 77 S.W. 410, the rule is stated.

By its Fifth Point the action of the Trial Court in permitting Jack Hewlett, Administrator, to testify as to transactions with the deceased is complained of as error.

Radkey called Hewlett, who was temporary administrator, to testify. The Attorney General in his exceptions and objections to the Court’s charge stated that every party to the proceeding is an adversary party to Mr. Radkey and that Radkey had freedom to call any of the witnesses as he might desire.

Then there is the question of waiver raised by appellee because the Attorney General did not raise any objection to the testimony of J. T. Hewlett in the County Court and such, if error, is not reversible error.

Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607; Pinchback v. Pinchback, Tex.Civ.App., 352 S.W.2d 151, error ref., n.r.e.

Point No. 6 is that the Court erred in allowing contestants to introduce into evidence the order of the Probate Court finding testatrix of unsound mind. We overrule this assignment,

There never was any question but that the testatrix was of unsound mind. Proponent’s witness, Dr. Hoerster, so testified as did others. The prime issue to be determined was did the testatrix have a lucid interval when the will of December 28, 1936 was written.

There was introduced by proponents as Exhibit 26, the Inventory and Appraisement of the Estate of Hattie W. Hewlett,' N.C.M., and the jury was entitled to know what “N.C.M.” meant, and the introduction of the order of the County Court was not reversible error.

31 Tex.Jur.2d 457, Sec. 41, Insane and Incompetent Persons.

The Seventh Point is that the Court erred in not instructing the jury that less mental capacity is required to execute a will than to execute a contract. The record does not reflect that appellant made a written request for such a definition.

In Brown v. Mitchell, supra, it was held:

“There was no reason to inform the jury that the law required a less amount of capacity to make a will than an ordinary contract. The jury would mot be presumed to know what degree -of capacity the law required to make a contract, and therefore could not make any proper comparison between the capacity of the testatrix, as shown by the evidence, and that which the law would require to enable her to make a binding contract.”

We do not believe that the Court erred in his order readjusting the court costs. The appellant was. contending for the probate of the will and was unsuccessful. The matter of taxing costs is within the sound discretion of the Trial Court. The amount of costs taxed against the appellant is not very great.

Broadway Plan v. Ravenstein, Tex.Civ.App., 364 S.W.2d 741, error ref., n.r.e.; Rules 131 and 141, T.R.C.P.

The record in this case is long and we have endeavored to read and consider it fully and conclude that no reversible error has been shown and that the judgment of the Trial Court should be affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

It is my opinion that reversible error was committed by the trial court in not permitting Dr. Sam A. Hoerster to give his opinion as to the ability of testatrix at the time she wrote the December 28, 1936, will to (a) Understand the business in which she was engaged (b) know the effect of her act in writing her will (c) know the objects of her bounty and the claims upon her, and the general nature and extent of her property and (d) have memory sufficient to collect in her mind the elements of the business she was transacting and to hold them long enough to perceive their obvious relation to each other and be able to form a reasonable judgment as to them.

I am further of the opinion that the -court erred in not permitting Dr. Hoerster to answer the long hypothetical question propounded to him reciting matters in evidence and concluding:

“Now, Dr. Hoerster, assuming the above to be true, have you formed an opinion as to whether Hattie Willie Hewlett, when she wrote the above will on December 28, 1936, at the time she wrote and signed this will, had sufficient ability to understand the business in which she was engaged, the effect of her acts in making the will, realized what she was doing, knew her people and relatives, and knew the property that she owned; do you have such an opinion?”

If permitted to answer, Dr. Hoerster would have answered these questions favorably to appellant.

It is my opinion that these questions were proper and that the witness should have been permitted to answer them under the opinion of this Court in Fox v. Lewis, 344 S.W.2d 731, writ ref., n.r.e., and the authorities therein cited.

I would reverse and remand this cause; therefore, I respectfully dissent.


author: SELLERS, Justice.

text:
    Jack NEAL, Appellant, v. LIBERTY INSURANCE COMPANY OF TEXAS et al., Appellees.
    No. 103.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 3, 1964.

      Jack Keller, W. E. Johnson, Yarborough, Yarborough & Johnson, Dallas, for appellant.
    Gordon MacDowell, Strasburger, Price, Kelton, Miller & Martin, Harold B. Stone, Dallas, for appellees.
   SELLERS, Justice.

This is an appeal from an order dismissing appellant’s suit as stated in his Second Original Amended Petition. Omitting the formal parts, the appellant’s Second Amended Petition alleges:

“Plaintiff further shows to the Court that prior to August 26, 1959, he contacted the Richburg Insurance Agency and contracted with and purchased from it as agent of the Defendant Liberty Insurance Company of Texas a workmen’s compensation insurance policy to cover the employees of Plaintiff ; that said Liberty Insurance Company of Texas, by and through its duly authorized agent, Richburg Insurance Agency, on August 26, 1959, issued to' Plaintiff its policy No. WC 36 55, nam--ing as the insured, Jack E. Neal, d/b/a Columbia Avenue Furniture Company, for a term to expire on August 21, 1960, for the protection of Plaintiff; that in consideration for said policy being issued, Plaintiff paid to the Defendants a deposit premium of $103.00; that said policy is a standard workmen’s compensation and employers liability policy and was issued for the protection of the Plaintiff against any injuries that Plaintiff’s employees might sustain; that the terms of said policy are well known to all of the Defendants herein; that said policy was-written by the Defendants and Liberty-Insurance Company of Texas became-bound and liable to the Plaintiff in accordance with the terms and conditions-of said policy.
“Plaintiff further shows to the Court that on or about September 17, 1959, George Harris, one of Plaintiff’s employees, while working in the course and scope of his employment for Plaintiff, Jack Neal, in Dallas County, Texas, received certain accidental personal! injuries; that said George Harris on or about October 7, 1959, sued the Plaintiff herein in Case No. 47559-D',. in the 95th Judicial District Court of Texas, Dallas County; that on October 7, 1959, Bill Shaw, District Clerk, issued a citation directed to Plaintiff herein in said suit; that said citation was served upon the Plaintiff on October 8, 1959; that immediately thereafter Plaintiff called the said Richburg Insurance Agency, notified it of said suit and was told by it that they would send a Mr. Hilborn to pick up the citation; that the said Mr. Hilborn acting in the course and scope of his employment and for and on behalf of Rich-burg Insurance Agency, did ask for and receive said citation at that time from the Plaintiff; that thereafter Plaintiff heard nothing further in regard to said citation until November 23, 1959, when said citation was returned to him by the law firm of Stras-burger, Price, Kelton, Miller & Martin with no explanation for its return; that when said citation was returned to Plaintiff it was immediately delivered to Jack Keller, attorney for Plaintiff, and upon his investigation it was found from the Court records in said case that a Default Judgment with a Writ of Inquiry had been taken against the Plaintiff on November 2, 1959, and on November 25, 1959, Judgment was granted against Plaintiff and in favor of said George Harris in the sum of $4,000.00.
“Plaintiff further shows to the Court that as soon as he received the citation herein referred- to he notified said Richburg Insurance Agency, agent of Liberty Insurance Company of Texas, and delivered said citation to said Rich- • burg Insurance Agency;' that said ' citation under the laws of the State of ' Texas was returnable the first Monday following twenty days from date of service, said date being November 2, 1959; that the Defendants herein ‘ knew that an answer should be filed " by the return date or else the case was subject to having a Default Judgment ■taken; that under the terms of the in- ' surance policy hereinbefore described, which terms are well known to all of • the Defendants herein, it was the duty ■ and obligation of' Defendant Liberty ■ Insurance Company of Texas to file an answer in said suit and further, if ' it did not file an answer it was said Defendant’s legal obligation to return the citation to the Plaintiff within time for him to employ an attorney, file an answer and protect his interests; that •the exact connection that the Defend- • ants Jay Richburg and Floyd Rich- • burg had with the citation is not known ■to the Plaintiff other than said citation ■ was delivered to the said Richburg In- • surance Agency at its request as agent for Liberty Insurance Company of Texas; that Plaintiff does not know whether one or all of the Defendants caused the delay which resulted in a Default Judgment being taken because no answer was filed before the return date; that Defendants knew that the return date had passed before said citation was returned to Plaintiff; that Defendants had a contractural obligation under the terms of said policy to file an answer and the breech of said contract resulted in damages to the Plaintiff as hereinafter set out.
“Plaintiff further shows to the Court that Defendants were negligent in failing to either file an answer in said lawsuit or they were negligent in failing to return the citation to Plaintiff before the return date, all of which was a proximate cause of the Default Judgment being taken against Plaintiff because the citation was not returned to him in time for an answer to be filed; that as a result of said breech of contract and as a result of the negligent of Defendants as hereinbefore alleged, Plaintiff has been damaged in the sum of $3,500.00; that Plaintiff was able through the Employment of attorney Jack Keller to negotiate a settlement with George Harris of said $4,000.00 Default Judgment for the sum of $2,-500.00; that it was necessary for Plaintiff to employ Jack Keller to negotiate said settlement and it was necessary for the Plaintiff to employ the undersigned attorneys to prosecute this suit all by reason of said breech of contract and Plaintiff will have the expense of the prosecution of this suit and that by reason of said breech of contract he has been damaged in the sum of $1,-000.00 as attorney fee expenses which is in addition to the $2,500.00 which he was required to pay George Harris; that Defendants are jointly and severally obligated and bound to pay Plaintiff his damages in the sum of $3,500.-00, both as a contractural obligation and in the alternative, as a tort obligation and Defendants have failed and refused to pay same.”

There was a pre-trial hearing of this case by the trial court in which the court sustained two special exceptions to plaintiff’s First Amended Petition.

We will concern ourselves with only one of the exceptions, to-wit:

“Defendants specially except and object to Paragraph 3 of Plaintiff’s First Amended Original Petition because it is not alleged for what company George Harris was working, and it is not alleged that George Harris was working for the named insured of the insurance policy in question. Further, that said paragraph is so vague, indefinite and general that Defendants are not apprised of the proof that will be offered at the time of trial and are therefore unable to prepare their defenses thereto. Of which special exception, Defendants pray judgment of the Court.”

Plaintiff filed his Second Amended Petition above set out in which no further exceptions were made. The appellees then filed their motion to dismiss the case because the appellant had failed to meet the exception by his Second Amended Petition and the court, after reviewing the pleadings and hearing the argument of counsel, granted the motion to dismiss, from which judgment the appellant has appealed.

In passing upon the exception this court must take every allegation in the appellant’s petition as true. Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W. 2d 546; Darnell v. Southwestern American Ins. Co, Tex.Civ.App, 240 S.W.2d 509.

The trial court heard no evidence and therefore we have before us one policy of insurance, one insured, and one employee who is alleged to have been injured while working for Jack Neal in the course and scope of his employment. These alleged facts would seem to us to meet the exception of appellees.

Since we have concluded that the petition states a cause of action, we deem it unnecessary to consider the appellees’ exception to the allegations to appellant’s petition seeking to recover attorneys’ fees.

The judgment of the trial court is reversed and the case remanded for trial on the merits.


author: DUNAGAN, Chief Justice.

text:
    Alma JOHNSON, Appellant, v. Henry E. POTTER et al., Appellees
    No. 95.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 3, 1964.

      W. B. Pope, Dallas, for appellant.
    John Whiteside, Richard Owens, Fort Worth, and James E. Coleman, Jr., Carring-ton, Johnson & Stephens, Dallas, for appel-lees.
   DUNAGAN, Chief Justice.

On May 31, 1961, appellee, Grinnan Mortgage Company, filed a suit, No. 60425-F, in the 116th District Court of Dallas County, Texas, against appellant, Alma Johnson, for debt and foreclosure of lien on real property.

The testimony given on the trial of appellant’s petition for bill of review reflects that appellant, Alma Johnson, was personally served with citation in such suit and she retained an attorney who filed an answer for her.

Judgment for debt and foreclosure was rendered for plaintiff November IS, 1961, and an Order of Sale was issued and certain property sold at Sheriff’s Sale.

On January 3, 1963, appellant filed this suit in the 116th District Court of Dallas County, against Henry E. Potter, T. M. Austin, and Grinnan Mortgage Company, appellees herein, seeking to set aside the . judgment rendered against her in the former suit. This was denied by the trial court and defendant has duly perfected her appeal to this court. As the term in which the former judgment rendered had expired and such judgment had become final, appellant was required to file this direct suit to set aside such judgment. Such is in the nature of an equitable proceeding and to have prevailed, appellant would have had to show, through no fault of her own, she was prevented from presenting her defenses in such original suit through the fraud, accident or acts of the adverse parties therein.

In addition to the Grinnan Mortgage Company appellant joined Henry Potter and T. M. Austin as party defendants in the suit at bar, alleging that Henry Potter fraudulently obtained appellant’s signature to the Mechanic’s and Materialman’s Liens that was later purchased by Grinnan Mortgage Company and foreclosed in the former suit. 'T. M. Austin was the owner of the property in question at the time appellant brought this action to set aside the former judgment.

Appellant complains that the trial court erred in refusing to set aside the judgment complained of because the appellant has been deprived of her property without the due course of the law of the land, and that such error violates the rights guaranteed the citizens of this state under Section 19 of Article 1 of the Constitution of the State of Texas, Vernon’s Ann.SL

The appellant cites as authority for this contention only that section of the Constitution above quoted. However, there is no better authority than the Constitution if it supports the proposition for which it is cited.

The evidence shows that in the case of Grinnan Mortgage Company, No. 60425-F, v. Alma Johnson, which resulted in the judgment now being sought to be set aside, was set for trial in the 116th District Court of Dallas County for a day and time certain. The attorney who represented the defendant, Alma Johnson, in that case testified that he was notified of such setting by both the attorney representing the plaintiff in such case and the judge of the said 116th District Court in which court the case was pending and heard. Neither the defendant, Alma Johnson, in said case nor her attorney appeared at the time the case was set and called for trial. The court proceeded to hear the case and rendered judgment therein for the plaintiff, Grinnan Mortgage Company.

Said attorney for defendant, Alma Johnson, further testified that he saw the judgment and it was his recollection that he approved same. However, the judgment does not show his approval.

The appellant in this case alleges ground of a meritorious defense, but does not support her allegations with proof thereof.

The Supreme Court of Texas in Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, discussed this type of procedure in detail. In that case the Supreme Court said that a bill of review would not lie to upset a former judgment on a ground that a party therein had sworn falsely. In the case at bar appellant is relying on alleged fraudulent instruments having been used as evidence in the former trial to obtain a judgment against her. As to what type of fraud is necessary to sustain an equitable proceeding to set aside a judgment, the Supreme Court declared:

“Fraud is classified as intrinsic or extrinsic. Included in the term ‘intrinsic fraud’ are false testimony, fraudulent instruments and any fraudulent matter that was presented and considered in rendering judgment. Intrinsic fraud does not furnish a ground, in an independent suit brought for that purpose, for setting aside a judgment. Fraud must be extrinsic to justify the setting aside of a judgment, and must be collateral to the matter tried, and not something which was actually or potentially in issue in the trial; unless the presentation of such defense was prevented by fraud, accident, or act of the opposing party, without fault or negligence of the party against whom the judgment was rendered.”

In the instant case appellant says she has lost title to property without due course of law. But she does not specify in what way the due course of the law was not followed. She was duly and personally served with citation, and attached to it was a petition in which the land on which a lien was asserted was described in detail. The appellant retained her own attorney, who filed an answer for her. Every defense she asserts in the present suit she had an opportunity to present in the former case. Her failure to present her defense, if any, in such suit is not shown in no way to have been caused by an action of her adverse party,

In the present case the appellant simply seeks to re-litigate the issues decided adversely to her in the former case. Such is not the purpose of a bill of review. The fact that the court in the former judgment committed an error in the trial of such cause, or that an erroneous judgment was entered, is not grounds for granting a bill of review. In Metropolitan Life Ins. Co. v. Pribble, 130 S.W.2d 332, 338, Tex. Civ.App., 1939, (writ refused) the court, said:

“The following announcement, found in 3d Freeman on Judgments (5th Ed.) para. 1216, p. 2526, is supported by a vast number of authorities, not only in Texas but in other states and in the United States Supreme Court: ‘It has already been intimated that neither an erroneous conclusion upon which a judgment was based, nor any irregularity of proceeding not involving the jurisdiction of the tribunal pronouncing it, can have any effect in determining the question whether the judgment should be set aside or restrained in equity. Such, beyond doubt, is the law.’ ” See Gray v. Moore, 172 S.W.2d 746, 751, Tex.Civ.App., 1943, (writ refused).

In regard to appellant’s claim that she is entitled to have the judgment in the former suit set aside because of the conduct of her counsel in that case, the Supreme Court of Texas in Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983, 986, stated:

“These facts leave petitioners with no standing in a court of equity to set aside a former judgment by a bill of review. No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking relief or his counsel. Brownson v. Reynolds, 77 Tex. 254, 13 S.W. 986; Johnson v. Templeton, 60 Tex. 238; Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W. 2d 964; Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, writ refused; Brannen v. City of Houston, Tex.Civ.App., 153 S.W.2d 676, writ refused.”

In the case of Smith v. Ellis, 319 S.W.2d 745, Tex.Civ.App., Waco 1958, (no writ history) the court in clear language sets forth what must be shown by one seeking to set aside a judgment by a bill of review. The court at page 748 said:

“A judgment cannot be set aside by bill of review unless it be shown that:
“1) There existed a meritorious defense to the cause of action. Barrow, Wade, Guthrie & Co. v. Stroud, Tex.Civ.App., 125 S.W.2d 365, no writ history.
“2) Complainant was prevented from presenting such meritorious defense through extrinsic fraud, accident, or mistake, wholly unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996.
“3) Complainant was diligent in seeking to set the judgment aside. Osborn v. Younger, Tex.Com.App., 235 S.W. 558.
“4) The matters complained of in the equitable suit to vacate the original judgment could not have been presented to the appellate court by appeal; (Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768, 773, Mand.Ref.; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; or by way of application for writ of error; 25 Tex.Jur. 638, 639; 17 Tex. Jur. p. 28; Avant v. Broun, Tex.Civ.App., 91 S.W.2d 426, W/E Dism’d.; Drake v. First Nat. Bank of Mercedes, Tex.Civ.App., 254 S.W.2d 230 (no writ hist.); Birge v. Conwell, Tex.Civ.App., 105 S.W.2d 407, W/E Ref.”

In a more recent case, the Dallas Court of Civil Appeals in American Spiritualist Ass’n v. City of Dallas, 366 S.W.2d 97, Tex.Civ.App., 1963, (no writ history) reviewed the authorities pertaining to bills of review and applied them to a record where there were allegations but no proof— a situation not dissimilar from the one here:

“A Bill of Review, or a petition in the nature of a Bill- of Review, is a proceeding in equity having for its purpose the reversal of a prior judgment of the trial court 22 Tex.Jur.2d 569, § 28. One of the prime essentials of a proceeding of this nature to have a judgment set aside by Bill of Review is that it must be shown that there existed a meritorious defense to the cause of action; that the complainant was prevented from presenting that defense through extrinsic fraud, accident, or mistake wholly unmixed with any fault or negligence of his own, so that he was compelled to suffer the judgment by circumstances beyond his control; that he has not been guilty of a lack of diligence in failing to avail himself of any means to set the judgment aside, and that no other remedy is available. 22 Tex.Jur.2d 572, § 30. The Supreme Court in the recent case of McEwen v. Harrison [162 Tex. 125], 345 S.W.2d 706, held that in a Bill of Review proceeding the plaintiff must allege and prove that he was not negligent and that he had a meritorious defense as to the suit, the court saying, in part:
“ ‘In a bill of review proceeding the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit. Our decisions require that the two issues be tried together so that the court may render a new final judgment. (Citing cases).’

“The Supreme Court in the now familiar case of Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 announced the rule, as follows:

“ ‘Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, err. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments “are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted”; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.’ ”

Another reason why the judgment of the trial court should be affirmed is the lack of diligence shown by appellant in seeking to set aside this judgment. She was served with citation in Cause No. 6G425-F on June 3, 1961, and promptly retained an attorney to defend her. The judgment she now attacks was taken against her November 15, 1961, but she did not file this present suit until January 4, 1963.

In Puls v. Clark, 199 S.W.2d 811, Tex.Civ.App., 1947, (writ refused, n. r. e.), the petitioner in that case sought a bill of review to set aside a judgment because he thought he was represented by counsel in such case. The judgment dismissing the application was affirmed by the appellate court, that said:

“It is incumbent upon one who seeks, by an independent proceeding, to set aside a judgment by default to show a good excuse for not answering and for not making his defense or for not appearing at the trial. Gehret v. Hetkes, Tex.Com.App., 36 S.W.2d 700; Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962 and Hicks v. Wallis Lumber Co., Tex.Civ.App., 137 S.W.2d 93. When one seeks to set aside a default judgment he must show that he had a meritorious defense to the suit, that there was no lack of diligence on his part in permitting the default and that a failure to answer and defend in time wat not the result of his negligence. Paggi v. Rose Mfg. Co., Tex.Civ.App., 285 S.W. 852; Peters v. Hubb Diggs Co., Tex.Civ. App., 35 S.W.2d 449.
“Equity will not vacate a judgment where there is no showing that the failure of the party or his attorney to attend the trial was due to accident or mistake or to fraud practiced by his adversary; nor is a party’s mistaken belief that he employed counsel to take care of his case a sufficient ground to vacate a default judgment when there is no showing that such belief was justified. Maytag Southwestern Co. v. Thornton, Tex.Civ.App., 20 S.W.2d 383; Kahl v. Porter, Tex.Civ.App., 296 S.W. 324; Ames Iron Works v. Chinn, 20 Tex.Civ.App. 382, 49 S.W. 665.
“It is not sufficient that a petitioner for equitable relief from a former judgment rendered against him plead and prove that he had a meritorious defense in the first instance. He must also show diligence on his part and he must be reasonably prompt in seeking his remedy. Relief will be denied him in such a case if he has been guilty of negligence in protecting his rights. Thomas v. Mullins, Tex.Civ.App., 175 S.W.2d 276; Williams v. Coleman-Fulton Pasture Co., Tex.Civ.App., 157 S.W.2d 995; Garcia v. Jones, Tex.Civ. App., 155 S.W.2d 671; Brannen v. City of Houston, Tex.Civ.App., 153 S.W.2d 676.”

We have carefully examined the entire record in this case and find that although appellant did in her petition allege in general terms that she has good grounds of defense and has not been negligent and has not lacked diligence in the premises, yet no proof whatsoever was introduced m support of these allegations. As said by the Supreme Court of this state, it is not only necessary to allege these essential facts but to introduce evidence in support thereof in order to obtain equitable relief in an application for bill of review. During the trial of this case appellant failed to introduce evidence concerning any possible defense which she might have had to the original cause of action, nor was any evidence introduced to show lack of negligence or diligence on the part of the appellant, or her attorney, in preventing the judgment from being rendered. In the light of these facts, and in view of the well-established principles of law enumerated above, appellant has failed in her direct attack on the judgment and the trial court correctly denied the relief requested.

Judgment affirmed.


author: ARCHER, Chief Justice.

text:
    AMBASSADOR OIL CORPORATION and Deane Gill, Appellants, v. French M. ROBERTSON, Appellee. BLACKWELL ZINC COMPANY, Inc., et al., Appellants, v. French M. ROBERTSON, Appellee.
    Nos. 11219, 11236.
    Court of Civil Appeals of Texas. Austin.
    Nov. 4, 1964.
    Rehearing Denied Nov. 25, 1964.

      Hudson, Keltner, Smith & Cunningham, Fort Worth, Phipps, Smith & Alexander, McLeod, Mills, Shirley & Alexander, Galveston, Stubbeman, McRae, Sealy & Laugh-lin, Rush Moody, Jr., & James G. Nolan, Midland, of the firm Black & Stayton, Austin, Perkins, Bezoni & Kirwan, Midland, Paul Petty, Ballinger, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellants.
    King, Willoughby, Vletas & Dickenson, Abilene, Clark, Thomas, Harris, Denius & Winters, Austin, for appellee.
   ARCHER, Chief Justice.

French M. Robertson, a surface and royalty owner sued Blackwell Zinc Company, Inc., American Metal Climax, Inc., American Climax Petroleum Corporation and Amax Petroleum Corporation, as one or a group of affiliated companies, and Union Texas Petroleum, Joseph E. Seagram & Sons, d/b/a Frankfort Oil Company, and Joseph E. Seagram & Son, Inc., the second group, as claimed operators of the Golds-boro Unit in the East Goldsboro (Gardner) Field in Coleman and Runnels Counties, Texas. The plaintiff sought a Declaratory Judgment determining (a) the title to all of the personal property upon a tract of land, the surface of which Robertson claimed as his; (b) the use of water by “defendants” in the unit operations; and (c) plaintiff’s “rights, status or other legal relations thereto.” He also sued for an accounting of all salt water used for the waterflooding of the unit and for unit operations, and for money damages for the water used in such unit operations and for water furnished operators of adjoining leases within the same pool. Finally, the plaintiff asked for an injunction restraining defendants “from any further right to sell and use any of the subsurface waters in the future without the express written agreement and consent of the plaintiff.

In an amended petition plaintiff alleged that he had entered into a sales contract of oil and gas leases and properties in the Goldsboro-Gardner field and had subsequently entered into a Unitization Agreement covering said properties and providing for the waterflooding operations. He pleaded that he had also “entered into a Plant Site and Water Use Lease Agreement on ten acres of the Bright tract within the unit,” which “Plant Site and Water Use Lease contract superseded, merged and/or substituted all other agreements” and which Plant Site Lease “had terminated and was of no further force and effect,” and in this pleading plaintiff alleged that he “does hereby join the following additional Defendants as indispensable parties who are representatives of a class of royalty owners in the Goldsboro-Gardner Field Unit of Runnels and Coleman Counties, Texas,” and thus added as parties Wallace H. Newton, Nana D. Newton, Harris D. Newton, First National Bank of Abilene, Texas, Trustee under the Will of S. M. Jay, deceased, W. J. Fulwiler, Jr. and Annie E. Bright.

Trial was had with the aid of a jury and based on the verdict, judgment rendered against Blackwell Zinc Company, Inc., American Metal Climax, Inc., American Climax Petroleum Corporation, Amax Petroleum Corporation, Union Texas Petroleum, Joseph E. Seagram & Sons, d/b/a Frankfort Oil Company, and Joseph E. Seagram & Son, Inc., jointly and severally.

Appellant filed motion for new trial, which was overruled. The order was dated November 22, 1963. A Nunc Pro Tunc order was later entered reciting that the correct date of the order was November 25, 1963.

On February 6, 1964, Robertson filed his Motion to Affirm on Certificate under Rule 387, Texas Rules of Civil Procedure, in this Court, giving notice to attorneys for appellants.

On February 8, 1964 acting Judge John Sutton entered a Nunc Pro Tunc order, overruling the amended motion for new trial, correcting the record “to show that the order was, in fact, rendered, signed and entered on the 25th day of November, 1963.”

On February 26, 1964 this Court entered an order suspending action on the pending motions “for 30 days within which appellants may, if they so desire, take steps to enter a Nunc Pro Tunc order in the premises as contemplated by Rule 316. Upon completion of such proceedings, if any, appellants may, if they desire, tender for filing herein, a supplemental transcript and if evidence is introduced, a supplemental statement of facts reflecting the record of such proceedings.”

On March 12, 1964, a hearing was held and Judge Sutton reaffirmed his order overruling the amended motion for a new trial as of November 25, 1963, to which exceptions were taken and notice of appeal was given by Blackwell Zinc, appellants.

On March 18, 1964 our Supreme Court refused leave to Robertson to file a petition for mandamus seeking to require this Court to affirm on certificate.

In appellee’s brief on the procedure of this appeal, it is said that the basic issue is:

“Does Rule 306b give a trial court the power to extend the time within which an appellant must perfect his appeal under 386, after such time has expired on the face of the record and appellee has moved the Court of Civil Appeals to affirm on certificate under Rule 387 ?”

We believe that this question should be answered in the affirmative.

Rule 306b provides:

"When a judgment or order is entered nunc pro tunc, the right of appeal shall date from the date of rendition of the nunc pro tunc judgment or order, which shall be deemed to be the date upon which the trial judge signed the nunc pro tunc judgment or order if the date is shown therein; and the periods within which the various steps in such an appeal are to be taken shall be computed from that date.”

Under Rules 363 and 306b, Blackwell Zinc, appellants, have perfected a new and different appeal from that involved in appellee’s Motion to Affirm on Certificate, and their right of appeal dates from the rendition of the Nunc Pro Tunc order, which in this case was March 12, 1964. Texas Employers’ Insurance Association v. Hartel, Tex.Civ.App., 289 S.W.2d 380, er. dism.; Hernandez v. Baucum, Tex.Civ.App., 338 S.W.2d 481, no writ history; Knox v. Long, 152 Tex. 291, 257 S.W.2d 289; 4 McDonald, Texas Civil Practice, Section 17.07, p. 1323.

We will now consider the case on the merits and will endeavor not to repeat what has been said hereinabove.

Blackwell Zinc’s appeal is based on 29 points assigned as error, the first 5 are to the effect that the trial court erred in overruling pleas in abatement and motions to dismiss, lack of jurisdiction because of any effective joinder or indispensable parties, and that the surface and royalty owners who had signed the Unitization Agreement were not represented in person or by attorney in the trial, and there was no effective joinder of indispensable parties so as to insure the adequate representation of all of the class.

In the pleading on which trial was had plaintiff stated that:

“For cause of action herein Plaintiff would show to the Court that the Plaintiff and ‘Defendants’ entered into a sales contract of oil and gas lease properties concerning the Goldsboro-Gard-ner Field in Coleman and Runnels Counties, Texas, and subsequently entered into a Unitization Agreement covering said properties, and subsequently plaintiff and ‘Defendants’ entered into a Plant Site and Water Use Lease Agreement (attached hereto and made a part hereof for all purposes and references) on a certain 10 acres of land on the Bright Fee Land described above and owned by the Plaintiff; that the Unitization Agreement described the acreage involved in the unit operations, and the Plant Site and Water Lease contract superseded, merged and/or substituted all other agreements heretofore existing and expressly granted to the ‘Defendants’ the right to drill a water well and that said water well was drilled to serve all said unit operations and which ‘Defendants’ 'were granted the right to use water * * * Furthermore, the Plant Site and Water Use Lease superseded, merged and/or substituted all other previous agreements and the ‘Defendants’ ought to he estopped to claim any other rights by any prior agreements.”

Plaintiff sought title and possession of all the personal property on the .10 acre plant site, for injunction, etc.

The Unitization Agreement provides in Article 3, Section 3.5 Injection Rights:

“Royalty Owners hereby grant unto Lessee the right to inject into the Unitized Formation any substances in whatever amounts Lessee deems expedient, including the right to place and maintain injection wells on the Unit Area and to use any producing or abandoned oil or gas wells for said purposes. Royalty Owners further grant unto Lessee the right to drill for and/or extract subsurface waters underlying the Unit Area and to use the same for injection purposes anywhere within the Goldsboro Pool in Coleman and Runnels Counties, Texas. Lessee shall not be required to pay for water so used. Lessee shall also have the free use of any other water from the Unit Area for operations hereunder except water from Royalty Owners’ wells, private lakes or ponds or irrigation ditches.”

In reply to the action for cancellation, answers were made by two of the named “indispensable parties,” The First National Bank of Abilene, Trustee under the will of S. M. Jay, and W. J. Fulwiler, Jr., who denied the allegations.

All other parties selected by the plaintiff to represent the class made default. No service was requested or had, or notice given to the other 66 signing parties to the Unitization Agreement. Pleas in abatement were filed, by reason of the absence of the parties to the agreement, and were overruled.

The plaintiff contends that the agreement had been superseded and cancelled in the main by the Plant Site Lease. This lease was signed by plaintiff and Climax Molybdenum Company and was delivered at the same time and as a part of the same transaction as the Unitization Agreement. The theory of plaintiff’s ground for recovery is that the plant site and water use lease superseded and took precedence over all other instruments that were signed in the chain of negotiations, and controlled.

As is stated in Article 3, Sec. 3.5, the operators of the leases in the Goldsboro Unit may extract the subsurface waters -underlying’ any part of the unit area and •use the same for injection purposes, without payment. The plaintiff’s petition attacked this contract and sought to cancel or alter it basically.

The rights of the signers of the Unitization Agreement were affected by the judgment of the court in a trial in which they were not parties, but should have been, in order that any defense that they may have had could be presented, and this was not done.

Plaintiff says that the royalty owners were joined through a class action, “for jurisdictional purposes only” and that “no personal money judgment” was sought against the royalty owners; plaintiff did expressly seek a declaration as to status of the royalty owners, and that the “free water” provisions'of the Unitization Agreement had been superseded and annulled by another contract between himself and the unit operator.

In the case of Hill v. Carr, Tex.Civ.App., 307 S.W.2d 828, no writ history, the doctrine of indispensable parties is reiterated, and the case of Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, is cited, and is a case involving the rights of royalty owners under unitized mineral leases.

In Sharpe v. Land Owners Oil Ass’n., 127 Tex. 147, 92 S.W.2d 435, the Court said:

“It is settled beyond all quesion in this state that in a suit to cancel a written instrument all persons whose rights, interests, or relations with or through the subject-matter of the suit will be affected by the cancellation are necessary parties. * * * The absence of a necessary party in a suit for cancellation is fundamental and jurisdictional to such extent that it must be considered by this court.”

In 1 McDonald, Texas Civil Practice, Sec. 3.16, p. 217, the following definition is set forth:

“An indispensable party is one who has or claims such a direct interest, legal or equitable, in the subject matter of the action or the relief sought that 'a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’ ”

The proceeding as a class action was not sufficient as a joinder of indispensable parties to meet the test of the rule.

Rule 42(a) T.R.C.P., provides as follows:

“Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, * * * ”

The history of class actions, both before and after the codification of Rule 42, is ably discussed in 1 McDonald, Texas Civil Practice, Sec. 334, pp. 269-279, and 1962 Pocket Part, pp. 81-88.

Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741, holds that an adequate representation in a class suit is essential to due process of law.

Knioum v. Slattery, Tex.Civ.App., 239 S.W.2d 865, er. ref., is the leading Texas case, deciding class representation and Rule 42.

The royalty owners were known to the plaintiff, since the testimony of an attorney is that he personally participated in persuading the royalty owners to sign the Unitization Agreement.

We recognize that class actions, handled in accordance with the requirements of due process, can be both useful and proper.

Appellants’ seventh and eighth points are to the effect that the trial court erred in overruling motions for judgment because the written contracts executed and delivered at the same time constitute one overall transaction and are to be construed together, and expressly provided free use of all water.

On April 11, 1957, Mr. Robertson agreed to assign to Climax (predecessor in title to Blackwell, American Metal Climax, American Climax Petroleum Corporation and Amax Petroleum) the various oil and gas leases in what later was called the Golds-boro Unit. These leases included the Bright Lease covering 202 acres, which itself included the ten acre tract later described in a Plant Site Lease between Climax Molybdenum Company and Robertson.

In furtherance of this agreement during May 1957, Robertson secured the execution of the Unitization Agreement, the various lease, surface, mineral and royalty owners, and had such agreement approved by the Railroad Commission of Texas and executed the Plant Site Lease covering the ten acre tract.

Robertson plead the agreement to sell oil and gas properties and the contract between himself and his associates and Climax Molybdenum Company and introduced these agreements in evidence:

The agreement to sell oil and gas properties provided that Robertson and his associates were to sell and convey all improvements, easements, etc., useful for operating gas or other minerals to be produced from the lands. The contract provided :

“2. Robertson agrees that,' if the Agreement is closed, Climax shall have the right on any portion of the lands owned by Robertson and described in Exhibits A and C to the Agreement to drill, equip and operate water wells and take water therefrom and use such water in secondary recovery operations on any portion or all of the tracts described in Exhibits A and C to the Agreement and on any and all other lands within the Goldsboro Pool in Coleman and Runnels Counties, Texas. Climax shall not be required to pay for water so obtained and used, and the liability of Climax for damages to the surface of the land caused by the drilling and equipping and operation of such water wells shall be limited to actual damage to growing crops other than pasture.”

The closing date of the agreement was fixed at May 31, 1957.

The Unitization Agreement provided:

“3.1 Oil and Gas Rights Unitized. Subject to the terms and conditions of this Agreement, all the Oil and Gas-Rights of the Royalty Owners in and to the lands described in Exhibit A and all of the Oil and Gas Rights of Lessee in and to said lands are hereby-unitized in so far as said respective Oil and Gas Rights pertain to the Unitized Formation, all to the same extent as if the Unitized Formation had been included in a single lease executed by all the Royalty Owners,, as lessors, in favor of Lessee, as lessee,, and as if said lease had been subject to all of the terms and conditions of this Agreement.”

We have inserted Section 3.5, Injection-Rights, hereinabove.

“4.1 Waterflooding Operation.1 As soon as reasonably possible after the effective date of this Agreement, Lessee shall commence and carry on with reasonable diligence and in accordance with good engineering and production practices a waterflooding operation with respect to the Unitized Formation. The plan and method of such waterflooding operation shall be at the discretion of Lessee and Lessee shall be under no liability to Royalty Owners for any action in good faith taken or omitted to be taken by Lessee in connection therewith.
******
10.1 Grant of Easements. The parties hereto, to the extent of their rights and interests, hereby grant to Lessee the right to use as much of the surface of the land within the Unit Area as may be reasonably necessary for the operation and development of the Unit Area hereunder.”

In the lease from Robertson to Climax covering the Bright 202 acres, it is provided :

“Lessee shall have the right to use, free of cost, gas, oil and water produced on said land for all operations thereon, except from water wells of lessor.”

The Plant Site Lease covering the ten acres out of the 202 acre Bright tract provided for the drilling, equipping and operating of water wells, and maintaining a water supply plant in connection with secondary recovery operations anywhere, for oil storage; pump stations, houses for employees, and any other lawful activity incident to its operations in Coleman or Runnels Counties.

Mr. Robertson testified that the Unitization Agreement was a part of the whole trade effective June 1, 1957. The separate written instruments having been delivered at the same time and as a common understanding they will be construed together as one contract.

In Guadalupe-Blanco River Authority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989, our Supreme Court wrote directly on this question.

The effect of the unitization was to merge all of the oil and gas leases into one contract and to vest all of the lessors with the right to participate in any royalty produced on any tract in the block. Belt v. Texas Company, Tex.Civ.App., 175 S.W. 2d 622, er. ref.

The operator had the right to use so much of the surface as was necessary. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410, Supreme Court; Holt v. Southwest Antioch Sand Unit, Fifth Enlarged, Okl., 292 P.2d 998.

Since the contracts were in evidence, there was no fact questions and the trial court had the power and duty to interpret and apply them to the facts. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, Supreme Court; Hill & Combs v. First Nat. Bank of San Angelo, Texas, 139 F.2d 740; Railroad Commission of Texas et al v. Manziel et al, 361 S.W.2d 560, Supreme Court.

Appellants assign as error the action of the Court in failing to hold that Robertson was estopped to question any part of the Unitization Agreement, and the continuing force and effect thereof.

There can be no question as to the execution of the Unitization Agreement and the Plant Lease by Mr. Robertson on the one hand and the other interested parties on the other hand.

The plaintiff is continuing to claim and hold under the leases, and to accept royalties paid by reason of the production of oil and gas produced under the agreement, and now insists that most of its terms are in full force.

Generally a party who has accepted and retained the beneficial part of a contract is estopped to repudiate any disadvantageous part thereof; in this case, the right to the water, without cost. Guadalupe-Blanco River Authority v. City of San Antonio, supra; Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668, Supreme Court.

There is the question of the ownership of the salt water, which is held to be a mineral, reserved in the deed from Mrs. Bright to Mr. Robertson, which must be determined. Cain v. Neumann, Tex.Civ.App., 316 S.W.2d 915, no writ hist.; Cox v. Robison, 105 Tex. 426, 150 S.W. 1149; Flemming Foundation v. Texaco, Tex.Civ.App., 337 S.W. 2d 846, er. ref. n. r. e.

Appellants’ assignments Nos. 14, 15, 16, 17, 18, 19, 20 and 21 are directed to the action of the trial court in overruling appellants’ motion for judgment because there was no evidence or the evidence was insufficient to show the amount of water taken from the salt water well, and no evidence or the evidence was insufficient to establish the amount of salt water injected into the wells on the Bright 202 acre tract, or into the input wells within the Goldsboro Unit, or into the input wells located on the offsetting tracts.

Plaintiff sought money damages based on the reasonable market value of the salt water produced from the Cambrian salt water well on the ten acre tract.

There was no positive evidence as to the amount of salt water taken from the well on the ten acre tract alone, but as to the total amount of salt water produced from the Gardner formation with oil and from the Cambrian formation, and no claim is made by plaintiff to the salt water from the Gardner sand.

M. L. Hagan, superintendent of Amax Petroleum Corporation, by deposition introduced into evidence by plaintiff, testified as to the injection and repressuring into the Gardner sand of salt water from the plant on the ten acre tract, and:

"Q What is being done with the water produced from the well on the Bright tract?
“A The water we are producing from that well is being injected into the Gardner sand.
“Q How?
“A It is produced into a central filtering tank, treated, we are mixing our produced water with the Gardner — or, with the Cambrian water, then it is pressured through our high pressure plant.
“Q Is any water being taken or used from the water well on the Bright tract and put into any wells located outside of the Golds-boro field in Coleman and Runnels Counties, Texas?
“A No, sin
“Q Are you now obtaining additional production from the Goldsboro' unit by reason of this water injection and secondary recovery-operation, or not?
“A Yes, sir, we are.
“Q If you put salt water down into-this oil formation, as that salt water drives the oil towards the bore hole the salt water will go-towards the bore hole, won’t it?'
“A Yes.
“Q And as your water flood project proceeds, your salt water and', your oil come back up through the oil well ?
“A Only that salt water, where we-have such an emergency, that which comes back, where none-came by, and you have 100 percent ideal where none comes back.. We have some to bypass. Whem we have some to bypass that water, that water that didn’t go back,, we have to put it back down and. push it back.
“Q Where you get water in this-Gardner formation, or any other-formation, that gets to your well hole, bore hole, it is going to come-up with your oil?
“A Yes, you will produce it up.
“Q As you get it on top of the ground; you are going to separate it: again ?
"A Yes.
"Q And take that water and put it through your plant and put it back down there again?
“A That’s right.
“Q When you get in a project that has Cambrian water, for example, and has your Gardner water above it that produces oil, you can go get the Cambrian water, bring it to the top of the ground, right?
“A And put it back down.
“Q Put it back in the Gardner, right?
“A Yes.
“Q It will come back to the top of the ground with some of your water, with your oil, right?
“A That’s right.
“Q You take the water and separate it again and let your oil go to the purchaser?
“A Put it back down.
“Q Put it back down in the Gardner; so that you are circulating?
'“A Circulating the water that is not doing any good.
“Q You are circulating it and keeping it on your unit?
'“A That which is going into your well and coming back out this other well on your unit, you are ■circulating; that which goes into your injection and comes back out is being circulated. The water that didn’t do much good is returned.
“Q Now, of all the water you have produced, whether it be from the Cambrian formation or from the Gardner sand, has it come from the well located on the Bright plant site lease?
“A No, sir.
“Q I see. Now, where does this seven million six hundred and fifty-five thousand barrels and a little more, that you have mentioned, where does this water specifically come from, other than the Gardner formation; does it come from other wells?
“A No, sir.
“Q Does it still come from this one water supply well that you have?
“A No, sir.
“Q Do you pipe it to your plant on this water supply well, where the—
“A No, sir.
“Q Well, would you tell me where it comes from?
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“Q I see. Now, then, in other words, you are producing some salt water from your oil wells; is that it?
“A Yes, sir.
“Q And where does this water go to, sir?
“A It goes into our injection system.
“Q Now, how much water have your produced from sources other than the Bright lease, Mr. Hagan?
“A Through June, of 1962, we have produced seven million six hundred and seventy-five thousand three hundred and seventy-three barrels in the Goldsboro unit.
“Q From the what, sir?
“A Goldsboro unit. And we have taken quite an amount of water from S. G. Herring and Bristol Petroleum. That amount, I cannot answer.
“Q Where does this water come from, this seven million, six hundred and fifty-five thousand odd barrels ?
“A From the producing horizon of the Gardner sand.
“Q And that is water that you put back into your plant, and, then, reinject; is that what you do?
“A Yes, sir.”

Appellants’ 22nd and 23rd points are directed to the action of the trial court in overruling appellants’ motions for judgment because there was no evidence or the evidence was insufficient to establish the market value of the salt water used by appellants.

As we have stated, the suit was for the reasonable market value of the salt water taken and sold by the defendants from the Cambrian salt water well to operators other than defendants for use in input wells on land outside of the unit, and for water located within the unit.

We have hereinabove discussed the evidence as to amount of water used and such is applicable as to the value of such, and we will not restate such again.

There was evidence as to the sale of water to operators outside the unit for a price of 2^ cents per barrel on top of the ground, but this was only one instance, and does not meet the requirements to fix value. 17 Tex.Jur.2d 296, Damages, Section 234.

The 24th and 25th points are directed to the action of the trial court in refusing to apply the two year statute of limitation, Article 5526, Vernon’s Ann.Civ.St.

The suit was filed June 12, 1962 by plaintiff and defendants pleaded the two year statute of limitations. We do not determine the limitation statute — whether the two year statute or the four year statute would apply.

The 26th, 27th and 28th points are directed to the action of the trial court in refusing to enter judgment for defendants because the jury found that the salt water had no market value in place and the amount of damages should have been limited- to the value of the salt water above the ground less the reasonable cost of producing, using, etc. the water, and the jury having found that the cost of producing the water was greater than the value of the water on top of the ground.

The evidence of Mr. Robertson was that the salt water was 6 cents a barrel, without taking into consideration the costs, which would be 10 or 12 cents to produce.

The jury found that the reasonable market value of a barrel of water, without considering the costs of producing same was 2]/i cents per barrel and further that the costs of production was 11 cents per barrel.

Generally, the damages in a conversion action is the actual loss, and in the absence of fraud, the measure of damages is the value of the property converted at the time of conversion and when and where it was converted. 14 Tex.Jur.2d 27-28, 30, Conversion 24, 26; Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, Comm. of App., opinion affirmed by the Supreme Court.

The 29th and last point of appellants is directed to the failure of the trial court to grant the motion for a new trial because of jury argument. We do not consider this point further since was are reversing and remanding the cause.

We have carefully considered the entire record and the briefs filed herein in behalf of all parties, appellants and appellee.

As we understand the record, the title to the Bright 202 acre tract, minerals and surface, is as follows:

Surface
Robertson all
Minerals
Climax leasehold (working interest) %
Third parties Vie
Robertson Vis

If the salt water which was produced from the Bright tract and for the value of which Robertson brought this suit, is a “mineral”, then it is owned in the properties above stated, subject, however, to the provisions of the unitization agreement which, as we understand the record, .all mineral estate owners executed.

It is our opinion that salt water Is a mineral within the meaning of the phrase "oil, gas and other minerals” as used in the leases held by Climax and within the meaning of the word “minerals” used in the deed from Mrs. Bright to Robertson conveying the land but reserving the “minerals”.

Authorities which support this opinion are State of Texas v. Parker, 61 Tex. 265 and Cain v. Newmann, 316 S.W.2d 915, San Antonio Civ.App., no writ history.

' The salt water, then, would be owned by the parties in the proportions stated subject to the terms of the pooling agreement. Our understanding of the agreement is that it dedicated the salt water owned by the parties to the flooding project. If so, then all parties were entitled to have the salt water so used and for any damage resulting from a diversion of such waters they would be entitled to recover. If, however, only excess salt water was diverted and sold by Climax than such salt water, being a mineral, should be treated as oil royalty and the owners of such royalty be paid their proportionate share of the proceeds.

The judgment awarded Mr. Robertson is a judgment for $200,000.00, of which the sum of $33,877.73 was for water sold to others and $166,122.27 was for the wrongful use by the operator of water.

On a retrial, all parties at interest should be cited and given an opportunity to appear.

With regard to the annual rental of $20.-00, we do not consider the failure to pay such sum to be of such consequence to enable appellee to defeat the Unitization Agreement or to determine the ownership of the salt water.

The judgment of the Trial Court is reversed and the cause is remanded.

Reversed and remanded.

ON MOTION FOR REHEARING

In the deed to the 202 acre Bright tract to appellee, Mrs. Bright reserved all of “oil, gas and other minerals.” One half of such minerals are now concededly owned by third parties. Appellee claims to own one half of these minerals although no conveyance to him is shown.

In appellee’s Motion for Rehearing it is pointed out that the leases executed by himself and Mrs. Bright, and assigned to the unit operator, are for oil and gas only and do not include other minerals.

The effect of this is not material. The unitization agreement was executed by ap-pellee and Mrs. Bright and it defined “Royalty Owner” as including any party thereto who was the “owner of a mineral, royalty” etc.

Appellee and Mrs. Bright as owners of a mineral, salt water, under their land were bound by the agreement wherein it provided that the unit operator could extract subsurface water for certain purposes without paying therefor.

The fact that appellee may have owned more of the salt water than others who signed the agreement is of no consequence.

If, as held in our original opinion, relief is sought for conversion of salt water, i. e., not utilized as provided in the unitization agreement, then recovery should be prorated accordingly as ownership of the mineral estate is established.

The motion is overruled.

Motion overruled.