author: TIREY, Justice.

text:
    FIDELITY SOUTHERN FIRE INSURANCE COMPANY, Appellant, v. T. B. CROW et ux., Appellees.
    No. 4336.
    Court of Civil Appeals of Texas. Waco.
    May 6, 1965.
    Rehearing Denied May 2T, 1965.

      Bryan & Patton, Julietta, Jarvis, Houston, for appellant.
    C. Wayne Holder, Freeport, for appel-lees.
   TIREY, Justice.

Plaintiff brought this action on a Texas Standard form insurance policy with Physical Loss Form Endorsement issued by the Fidelity Southern Fire Insurance Company covering the dwelling of plaintiff for damages under the provisions of such policy and endorsement arising out of Hurricane “Carla” of September 9, 10, and 11, 1961. The insurance policy, together with the Physical Loss Form Endorsement provides coverage for “all risks of physical loss” to the dwelling, building or structure described in the face of the insurance policy except specific losses excluded under Section II of the endorsement. Plaintiff sought damages under such policy and endorsement as a result of wind and wind driven rain entering the dwelling of the appellee from Hurricane Carla. In paragraphs 4, 5 and 6 of plaintiff’s trial amendment, we find the following allegations:

“IV. That on or about September 11, 1961, a hurricane called ‘Carla’, having heretofore developed struck the Gulf Coast of the State of Texas, the eye thereof passing south and west of Free-port, Texas, at Matagorda and Port O’Connor; that the wind and wind driven rain created by the aforesaid Hurricane Carla, created openings in the roof and sides of the insured’s premises above, and, as a direct result of said wind and rain driven thereby, the premises aforesaid sustained damages in the total amount of $7,832.00; that said damage was all sustained and is within the coverage of the policy aforesaid; that plaintiff has heretofore made demand for payment but that defendant has failed and refused to pay the amount within its policy limits.
V. That plaintiff has complied with all conditions precedent to the filing of this suit required by the terms of said policy; and in the alternative, if plaintiff be mistaken in his belief that all conditions precedent have been so complied with, then in such event, plaintiff says that defendant through its agents, attorneys, and employees has waived any such provisions of such policy making any one or more item or items a condition precedent to the filing of this suit.
VI. That under the conditions of said policy and endorsement aforesaid, the defendant agreed to pay 10% of the amount of insurance carried to apply to the rental value of the described building occupied by insured, but not to exceed 10% for both, whenever such expenses are occasioned by a loss within the meaning of such policy; that plaintiff sustained such loss within the meaning of such policy in an amount of Six Hundred Ninety & No/100 ($690.00) Dollars.”

He prayed for damages in the amount of $7,590.00, with legal interest from December 26, 1961, the date of trial, and with interest from date of judgment at the legal rate.

Defendant entered a general denial and pertinent to this discussion pleaded the exclusion, “tidal wave, high water, or overflow, whether driven by wind or not.” The jury found that the house was damaged by wind and wind driven rain; that the value before Carla was $7,400, and the value after was $68.00; that the cost of repair was $7,332, and that the wind made openings and permitted rain and wind driven rain to enter through openings; that the house was uninhabitable and could be reasonably restored in three months; that the increase in household expense was $210; that the damage was caused by tidal wave, high water, overflow or rising water, and that the cost of repair of such damage was $400, and that plaintiff did not fail to file proof of loss and that the company waived the filing of proof of loss. The court entered judgment for $6,900, the face amount of the policy. Defendant’s motions for instructed verdict and for judgment notwithstanding the verdict were overruled and it perfected its appeal and the cause is here on transfer.

Appellant has assigned 26 points of error. Point 1 is to the effect that the court erred in failing to sustain its motion for judgment notwithstanding the verdict, and in entering judgment for plaintiff based on the jury finding to special issue No. 3, because there is no evidence to support the jury’s answer that $7,332.00 is the “actual and necessary cost of repairing plaintiff’s dwelling * * * damaged solely, if any, as a direct result of the wind and wind driven rain * *. * with material of like kind and quality.”; Point 2 assails the insufficiency of the evidence to support the jury’s answer to issue No. 3, and that the answer is so against the great weight and preponderance of the evidence and is the result of bias and prejudice so as to be clearly wrong; Points 3 and 4 are to the effect that there is no evidence to sustain the jury’s answer to issue 5 to the effect that the actual cash value of plaintiff’s house just after Hurricane Carla was $68.00, and that its motion for judgment notwithstanding the verdict of the jury should have been granted, and that the answer to issue 5 is so against the great weight and preponderance of the evidence as to be clearly wrong and is the result of bias and prejudice; Points 5 and 6 are to the effect that there is no evidence that the actual cost of repairing the damage done by “tidal wave, highwater, overflow or rising water” was 40%332 of the damage, or that damage covered by the policy constituted the building a total loss, and that the evidence is insufficient to support the judgment for total loss, and that it is against the great weight and preponderance of the evidence; Point 7, in refusing its special issue No. 21, which was: “From a preponderance of the evidence what do you find to be the percentage of loss and damage to plaintiff’s house on the premises in question as a direct result of the winds of Hurricane Carla, based upon 100%? Give your answer in percentage.”; Point 8, in refusing defendant’s requested issue No. 20, which was: “What do you find from a preponderance of the evidence to be the reasonable and fair cost, if any, to repair or replace plaintiff’s house to the condition in which it was just before the occurrence made the basis of this suit, with material of like kind and qualify within a reasonable time after the loss”, and the accompanying instruction, “In connection with the above and foregoing issue, in arriving at your answer, you will make allowance for depreciation, if any, and you will not allow for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair. You will likewise not consider or allow anything for damage that was not a direct result of the winds of Hurricane Carla.”.

Appellant says that the effect of the foregoing points is that there is no evidence and insufficient evidence that the house in question sustained damages which amounted to repair costs of $7,332 less $400 as a result of damage above the water flood line, or that the house was worth only $68 immediately after Hurricane Carla; that the refusal of defendant’s requested issues 20 and 21 enabled the plaintiff to recover judgment based on the most advantageous extreme of two estimates.

We overrule each of the foregoing points for reasons hereinafter stated. Plaintiff’s exhibits 1 and 2 relate to the basic fire and windstorm and extended coverage policy and the Physical Loss Form Endorsement. Under Section III of the basic insurance policy, we find:

“CONDITIONS APPLICABLE ONLY TO WINDSTORM, HURRICANE AND HAIL:
Unless specifically named hereon, the company shall not be liable for loss to metal smokestacks (except when securely fastened to walls of a masonry building,) radio or television towers and antennas, windmills, windchargers, outside erected signs or greenhouses, nor for loss caused by (a) blizrard or change in temperature, nor (b) by snowstorm; tidal wave, highwater or overflow, whether driven by wind or nor, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall be liable only for loss to the interior of the building or the insured property therein, caused immediately by rain entering the building through such openings.”

Under the Physical Loss Form Endorsement, plaintiff’s exhibit No. 2, we find:

“The provisions of Section I ‘Definitions’, Section II, ‘Special Conditions’ and Section III, ‘Special Coverage Conditions’ of the Texas Standard Policy are each eliminated as to dwelling^) described in the policy and in lieu thereof the provisions of this form shall apply.”

(This language is clear, comprehensive and free from all doubt).

We quote further from Section I of the Physical Loss Form Endorsement:

“COVERAGE: Subject to the provisions of this form and of the policy to which this form is attached including the endorsements thereon, this policy insures against all risks of physical loss to the described dwelling (s), building^) or structure(s) covered under this form.”

(This provision is free from all doubt).

Also from the Physical Loss Form Endorsement, we quote from Section II:

“This policy does not insure against * * * C. Loss by earthquake, surface waters, flood waters, waves tide or tidal wave, high water or overflow of streams or bodies of water, all whether driven by wind or not, or whether caused by or attributable to earthquake; this exclusion, however, shall not apply to loss by fire or explosion caused by perils excluded in this paragraph, * * *

Again, we quote from the Physical Loss Form, and from Section III, C.:

“DEDUCTIBLES: * * * C. * * On each separate loss resulting from wind driven rain or hurricane driven rain, there shall be deducted the sum of $50.00 or the sum shown in Line D below, whichever is the greater.”

So far as we have been able to find there is not a Texas case that defines the term: “all risks of physical loss.” In Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, our Supreme Court in a workmen’s compensation case discussing loss made the following statement :

“The phrase ‘physical structure of the body’, as it is used in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breath'ng, functioning individual. To determine what is meant by ‘physical structure of the body’, the structure should be considered that of a living person — not as a static, inanimate thing.”

By analogy, we are of the view that the term “all risks of physical loss” should not be given a restrictive meaning, and because it would be impossible to define the term “all risks of physical loss” as meaning any damage or harm to the building or structure described as mentioned in the policy of insurance; otherwise, there could be no certainty as to what the coverage was, or as to what the insured was paying for. (The Physical Loss Form Endorsement cost plaintiff in excess of $164.00). In Travelers’ Indemnity Co. v. De Witt, Tex.Civ.App., 207 S.W.2d 641 (n.w.h.) we find this statement:

“It is elementary that a policy of insurance, like every contract, must be construed as a whole, giving reasonable effect to and harmonizing all of its parts. 24 Tex.Jur. 701. It is also a well settled rule of construction that, ‘contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. The rule that a policy of insurance should be construed favorably to the insured does not require that words and expressions be given a meaning so restrictive as to deprive them of their ordinary signification. It is not permissible to impute an unusual meaning to language in a contract of insurance, any more than to language or any other contract, unless it is shown by evidence that the language used has acquired by custom or otherwise a peculiar meaning distinct from the popular sense of such terms.’ ”

See also United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048. See also 88 A.L.R.2d 1122-25-27. As we understand the policy, we think the exclusion provided for under Section III of the basic insurance policy is applicable no longer whenever there is a physical loss endorsement form attached to the basic policy. That is the exact situation here. We are of the further view that the appellant’s defenses were restricted by the physical loss form endorsement to those contained in Section II, C., heretofore quoted. This exclusion clause does not exclude loss or damage caused by wind and wind driven rain, nor does such clause require that the wind or hail shall first make an opening in the roof or walls or limit the appellant’s liability to loss caused immediately by rain entering the building through such openings as contended by the appellant. The provisions of Section III (a) of the basic insurance policy, making liability depend upon the wind or hail creating openings in the roof or walls of the building and limiting liability to damage caused by rain entering through such openings, being wholly and totally omitted from the provisions of the physical loss form endorsement.

But, appellant contends that certain issues submitted by the trial court did not segregate the damage and did not bring the loss within the coverage of the policy, and that it submitted only ultimate issues. We are not in accord with this view. We think that the court submitted this cause in accord with the provisions of the physical loss form endorsement, and that the evidence is ample to sustain each jury finding thereon. As we understand appellant, it contends that the physical loss form endorsement does not cover damage or loss occasioned by wind or wind driven rain standing alone. We are not in accord with this view. This matter was covered by the Court’s charge in issues Nos. 1, 2, 3, 7, 8 and 9, and the jury’s answers thereto are supported by ample evidence. The physical loss form endorsement upon which this action is grounded is certainly broad and comprehensive and free from all doubt. We have previously set it out. It is our view that our Texas courts have consistently ruled that, under the basic policy, plaintiff has the burden of proving that the loss fell within the coverage of the policy and not within the provisions of the exclusions of the policy whenever the affirmative defense of the exclusion is asserted. The rule in Texas is that where a loss is occasioned by a risk which is within the coverage of the policy, and a risk which is within the exclusion of the policy, that plaintiff may recover if plaintiff is able to segregate the damages occasioned by the covered risk from the damage occasioned by the excluded risk within the exclusion of his policy. (This the jury did). See Franklin Fire Ins. Co. of Philadelphia v. Smith, Tex.Civ.App., 103 S.W.2d 470; 93 A.L.R.2d 145, p. 165, 166-171. We also think that the rule in Texas is to the effect that where a loss occurs under a standard fire, windstorm and extended coverage policy within the coverage of the policy, and such loss is contributed to by an excluded risk of the policy, the plaintiff may, nevertheless, recover if plaintiff proves that the dominant efficient cause of the loss is the covered risk. See Providence Washington Ins. Co. v. Cooper, Tex.Civ.App., 223 S.W.2d 329 (n. r. e.). See also Berglund v. Hardware Dealers Mut. Fire Ins. Co., Tex.Civ.App., 381 S.W.2d 631. We are of the view that the burden of proving loss within the coverage of the policy and the amount of the loss excluded from the coverage of the policy, was placed upon the appellee by the court’s charge, and that appellee carried such burden. We are of the further view that all the evidence in this case preponderates to the effect that the dominant and efficient cause of the damage to plaintiff’s dwelling, unbroken by any new and independent cause, was Hurricane Carla. That leads us to say that each of appellant’s points from 1 to 8 inclusive are overruled.

Point of Error 9 is to the effect that the Court erred in overruling motion for judgment notwithstanding the verdict because plaintiff failed to prove damages which were a direct result of the winds of Hurricane Carla and failed to segregate damages which were caused or contributed to by pleaded exclusions to coverage; Point 10 is to the effect that the Court should have granted its motion for new trial because the Court’s charge to the jury failed to segregate damage within the policy coverage and damage excluded by the policy, and there remained no proper basis for entering judgment; Point 11 is to the effect that the Court failed to sustain its objection to Special Issue 1, because it pointed out to the Court that the issue was multifarious, calculated to mislead the jury, and would not bring any claimed loss within the insuring clauses of the contract; Point 12 is substantially to the same effect as issue 2 of the Court’s charge; Point 13 is to the effect that the Court failed to sustain its objections to Issue 11, and conditionally submitted Issue 12 where it pointed out the submission was not within the terms of the policy and requested the addition of the words “whether driven by wind or not.”; Point 14 complains of the failure of the Court to submit its requested Issue 13, which is: “Do you find from a preponderance of the evidence that the winds of Hurricane Carla, on or about September 11, 1961, did directly cause loss and damage to the house on the property in question ?” ; Point 15 complains of the failure of the Court to submit its requested Issue 14, which is: ‘Do you find from a preponderance of the evidence that openings in the walls and roof of the house in question were not made by the direct action of the winds of Hurricane Carla?” and the conditionally submitted requested Issues Nos. 15 and 16, which inquired as to whether rain did not enter through such openings, and if such rain did not cause damage. Point 16 complains of the court’s failure to submit its requested issue 17, which is: “Do you find from a preponderance of the evidence that rain water, whether driven by wind or not, directly caused damage to plaintiff’s house on the premises in question on or about September 11, 1961, by entering openings in such house, if any, which existed before hurricane Carla ?” Point 17 complains of the court’s failure to give its Issue No. 20, and the accompanying instruction, which is: “What do you find from a preponderance of the evidence to be the reasonable fair cost, if any, to repair or replace plaintiff’s house to the condition in which it was just before the occurrence made the basis of this suit, with material of like kind and quality within a reasonable time after the loss? In connection with the above and foregoing issue, in arriving at your answer, you will make allowance for depreciation, if any, and you will not allow for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair. You will likewise not consider or allow anything for damage that was not a direct result of the winds of Hurricane Carla.” Point 18 complains of the court’s failure to give its requested Issue No. 21, which is: “From a preponderance of the evidence what do you find to be the percentage of loss and damage to plaintiff’s house on the premises in question as a direct result of the winds of Hurricane Carla, based upon 100%?”

We have given considerable attention to each of the foregoing requested special issues, and we are of the view that none of them present reversible error. We are of the further view that the court’s charge submitted all of the controverted issues applicable to the defenses asserted by the defendant under the loss form endorsement. See Rule 279, Texas Rules of Civil Procedure; also Texas Pacific Railway Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280; Smith and Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124, and cases there cited. Accordingly, points from 9 to 18 inclusive are overruled.

Appellant’s Point 19 is to the effect that the court erred in overruling its motion for judgment notwithstanding the verdict, because there is no evidence that wind and wind driven rains entered the building within the terms of the policy coverage, and 20, because there is insufficient evidence to support the jury finding to that effect, and that such finding is against the great weight and preponderance of the evidence and is the result of bias and prejudice ; Point 21 is to the effect that there is no evidence that the wind of Hurricane Carla made openings in the walls and roof of the plaintiff’s dwelling; Point 22 is to the effect that there is insufficient evidence to support the jury finding that Hurricane Carla made openings in the walls and roof of the plaintiff’s dwelling, and that this finding is against the great weight and preponderance of the evidence, and is the result of bias and prejudice; Point 23 is to the effect that there is insufficient evidence to support the jury finding that $7332.00 is the actual and necessary cost of repairing plaintiff’s dwelling damaged solely as the result of wind and wind driven rain, and that this finding is against the great weight and preponderance of the evidence, and is the result of bias and prejudice; Point 24 is to the effect that there is insufficient evidence to support the jury finding that the dwelling was rendered uninhabitable as a direct result of the wind and wind driven rain of Hurricane Carla, and that such finding is against the great weight and preponderance of the evidence as to be wrong, and the result of bias and prejudice. We overrule each of these contentions for reasons hereinafter briefly stated. First of all, we see nothing to sustain appellant’s contention that the jury verdict was a result of bias and prejudice. No effort was made by appellant to change the venue of this cause on the ground that bias and prejudice was so great in this community that it could not obtain a fair and impartial trial. Moreover the Court granted appellant full opportunity to examine the jury panel, and under the record before us, we find no evidence whatsoever to sustain this contention of appellant. Plaintiff’s suit was based on a written contract between the parties, and plaintiff was asking for relief under this contract. We are of the view that appellant’s contention of bias and prejudice is without merit. The evidence tendered upon the issue of damage covers many pages, and necessarily we cannot quote it. It is our duty to consider the evidence and inferences to be drawn therefrom in the light most favorable to the party obtaining the verdict. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The witness Wolf testified in part to the effect that the total cost of repairing the dwelling would be the sum of $7832.00, and further that the water standing in the dwelling added damage to the floor but not to the structure, and that such damage to the floor was at the highest possible estimate of his estimate to repair the dwelling. Under Mr. Wolf’s testimony the jury could have answered Issue No. 3 in the Court’s charge that the cost of repair would he $7362.08. The law is well settled that jurors may accept some parts of the witness’s testimony and reject other parts, when the testimony is inconsistent and contradictory. See Hood v. Texas Indemnity Ins. Co., 146 Tex. 570, 209 S.W.2d 345, Supreme Court. See also Implement Dealers Mutual Insurance Company v. Cox, Tex.Civ.App., 376 S.W.2d 384 (n. w. h.). See also 14 Baylor Law Review 371, p. 372. From the quantum of proof tendered in the trial of this case, we are of the view that it is ample to sustain the jury findings in answer to each of the issues submitted by the Court, and that such findings are not against the great weight and preponderance of the evidence. Accordingly, points 19 through 24 are overruled.

We have considered points 25 and 26, and we are of the view that each should be overruled. Each of appellant’s points is overruled. Appellee’s counter-point one is overruled.

Accordingly, the judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A. L. CROUCH, Probate Judge, Appellant, v. Ollie STANLEY, Administrator, Appellee.
    No. 3952.
    Court of Civil Appeals of Texas. Eastland.
    April 30, 1965.
    Rehearing Denied May 28, 1965.

      See also Tex.Civ.App., 348 S.W.2d 543.

      A. L. Crouch, Ft. Worth, for appellant.
    Clyde, Hines & Craig, A1 Clyde, Ft. Worth, for appellee.
   PER CURIAM.

Edward J. Green, an heir of the estate of William Roy Green, deceased, instituted this proceeding against A. L. Crouch, Probate Judge of Tarrant County, praying for a writ of mandamus to require the Probate Judge to cause notice to issue for the purpose of holding a hearing on the final accounting of Ollie Stanley, administrator of the estate of said William Roy Green, deceased; to require that the Probate Judge hold such a hearing and either approve or disapprove the account filed by the said administrator. Ollie Stanley as administrator thereafter filed a plea of intervention and prayed for the same relief sought by the original petitioner, Edward J. Green. Judge Crouch filed a number of pleas in abatement and denial and various other motions, including a motion for jury trial.

Upon a hearing of the cause the various motions and pleadings of the respondent, Judge Crouch, were overruled and he refused to take further part in the proceedings. The court then proceeded with a hearing on the merits. The Honorable Ernest May, who had been appointed as attorney ad litem for the respondent represented him in the continuation of the trial. After hearing the testimony the court found that the petitioner, Edward J. Green, was not entitled to the relief prayed for. The court further found, however, that Ollie Stanley, the administrator of the estate of William Roy Green, deceased, was entitled to the relief sought by him; that he had filed his final accounting on August 22, 1963, and that the respondent probate judge had failed and refused to take any action thereon. The court found that the respondent should be required to comply with the terms of Article 407 of the Probate Code of Texas, V.A.T.S. and set a time and place when such accounting would be considered by him, and that respondent should determine to whom notices should be directed by written order and in compliance with article 408 of the Probate Code to hold a hearing upon the matter and audit and settle or restate the account “if the same be necessary.” The court also filed findings of fact and conclusions of law.

The court found as a matter of law that respondent was not entitled to a jury trial; that the appointment of attorneys ad litem was proper under all the facts and circumstances; that the trial court was not disqualified to hear the case; that the action of respondent in failing and refusing to take any action on the final account filed by the administrator was capricious and arbitrary and a clear abuse of discretion; that the intervenor, Ollie Stanley, as administrator, was entitled to relief by way of mandamus to require the respondent to act and rule upon the final account of the administrator, and that the petitioner Edward J. Green, should be denied the relief for which he prayed. The respondent, Judge A. L. Crouch, gave notice of appeal. The appeal has been transferred to this court by order of the Supreme Court of Texas. We overrule appellant’s contention that the trial court was disqualified to hear the case. We are of the opinion from a consideration of the record as a whole that the action of the court in appointing an attorney ad litem does not constitute reversible error.

Appellee alleged and there is ample evidence showing that he is the duly appointed, qualified and acting administrator of the estate of William Roy Green, deceased. We overrule appellant’s contention to the contrary. Appellee has served in such capacity since February of 1959. He was removed as administrator by the Probate Judge but appealed to the 48th District Court of Tarrant County. The trial in the District Court in such cases is de novo and the burden was on those who sought to remove the administrator to proceed. No further action has been taken although the appeal has been pending for about three years. Pending hearing and final judgment in the District Court ap-pellee retained his status as administrator. Crouch v. Stanley, Tex.Civ.App., 348 S.W.2d 543.

Appellee alleged and the evidence shows that on August 22, 1963, the administrator filed his final account and prayed that the required notices be given, a time set for hearing and action taken by the Probate Judge as provided by sections 407 and 408 of the Probate Code. Article 407 of the Probate Code which concerns citation upon presentation of an account for final settlement makes provision for notice including the following:

“1. In case of the estates of deceased persons, such notice as shall be directed by the court by written order.”
“5. If the court deems further additional notice necessary, including publication, it shall require the same by written order.”

Article 408, Probate Code, provides as follows:

“(a) Upon being satisfied that citation has been duly served upon all persons interested in the estate, the court shall examine the account for final settlement and the vouchers accompanying the same, and, after hearing all exceptions or objections thereto, and evidence in support of or against such account, it shall audit and settle the same, and restate it if that be necessary.”

Article 407, supra, calls for positive action by the court upon the filing of the final account and does not leave the court any discretion as to the requirement for the issuance of notice for a hearing, and for action to be taken as required by Article 408. We overrule appellant’s contention that the matter of notice and hearing was within his discretion. Appellant’s duty under the circumstances was ministerial and he was not legally justified in his refusal to require the issuance of notice and to hold a hearing. Crouch v. Shields, Tex.Civ.App., 385 S.W.2d 580, (Ref.N.R.E.). Appellee alleged the existence of such facts and his petition was not fatally defective. The petition was properly verified, showed a clear right to the relief sought, a present compelling necessity therefor, and a clear duty on the part of the appellant Probate Judge which he refused to perform.

We overrule appellant’s point contending that the jurisdiction of the District Court in probate matters is limited to appellate jurisdiction and that the mandamus granted by the District Court in the instant case was beyond the power and jurisdiction of that court. District Courts are vested with authority to issue original writs of mandamus under the provisions of Article V, Sec. 8 of the Constitution of Texas, Vernon’s Ann.St. A District Court has jurisdiction to entertain a petition for a writ of mandamus under proper circumstances, one of such circumstances being where, as here, there has been a failure of a public official to perform a ministerial duty. Crouch v. Shields, supra; Alice National Bank v. Edwards, Tex.Civ.App., 383 S.W.2d 482, and cases cited therein.

We also overrule appellant’s contention that the court erred in refusing his request for a jury. The pleadings raised no material issue of fact for jury determination. The material issue involved under the pleadings is whether appellant failed and refused to perform a ministerial duty imposed upon him by the Probate Code. As heretofore noted the record shows that the administrator has filed his final account and shows, which appellant does not deny, that he has failed and refused to act upon the final account filed by the administrator. Appellant seeks only to justify his failure and refusal to act. This presents questions of law for the court and does not involve an issue of fact for a jury.

Appellee alleged and the evidence shows that since the filing of said final account and up until the filing of this suit on March 24, 1964, and until the time of the trial respondent has continuously failed and refused to take any action upon the matter and has failed to cause the required notices to issue or to set a hearing or to make any ruling upon said account, either by approving, disapproving, auditing and restating the same, or entering an order refusing to consider such account. Stated otherwise, the record shows that appellant Probate Judge has failed to perform a ministerial duty required by the Probate Code of Texas. Appellant does not deny his refusal to act, but, rather confirms the fact of his refusal by urging numerous reasons why he should not be required to do so.

We cannot agree with appellant’s contention that the mandamus was not proper in that the evidence shows no demand upon him for any of the relief sought before the filing of this suit. The undisputed evidence shows the filing of the account by the administrator, shows a letter to the Probate Judge from the attorney of the administrator specifically requesting the Judge to permit the submission of the final account, requesting that the court cause proper notices to issue and offering if the court desired to prepare such proper notices as the court might direct.

What the District Court did was to direct appellant as Probate Judge to cause notices to be issued and to hold a hearing as required by Sections 407 and 408 of the Probate Code. There was no attempt by the District Court to tell the Probate Court what action should be taken upon such hearing, but only that the notices should issue, that the hearing should be held and that some disposition be made of the final account. The ultimate and only material question on this appeal is whether such action by the District Court is proper. In our opinion it was.

Numerous other matters and contentions are shown in the record and are here urged which, in our opinion, are not material to the determination of the appeal. It would serve no purpose to enumerate and discuss such matters which would only encumber the record. We have carefully considered the entire record and are of the opinion that the action of the District Court in granting the mandamus was proper.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Richard C. APPLING et al., Appellants, v. R. B. JAY et al., Appellees.
    No. 7614.
    Court of Civil Appeals of Texas. Texarkana.
    May 4, 1965.
    Rehearing Denied June 8, 1965.

      Overton Banks, Houston, for appellants.
    Franklin Jones, Scott Baldwin, Jones, Jones & Baldwin, Edward L. Peteet, Marshall, Wm. Hurwitz & Fred Erisman, Longview, for appellees.
   CHADICK, Chief Justice.

Under the pleadings and proof the trial court was obliged to order a trustee to make an accounting and to ascertain the beneficiaries of a trust declaration, together with the interest each beneficiary or his legal representative should take when the trust is executed and trust property is distributed. The judgment of the trial court is reversed and the case is remanded with instructions.

The trustor, W. T. Cock, in a trust declaration dated April 12, 1957, established two separate trusts known in this record as Trust No. 1 and Trust No. 2. No issue is raised in this appeal concerning Trust No. 2, and what is said here has no direct application to it. The trust was made irrevocable by the declaration, and sixteen kinsmen of the settlor were named as beneficiaries. This, the original trust declaration of April 12, 1957, was amended by judgment in a suit brought for that purpose in the District Court of Harrison County on May 17,1958; the kinsmen beneficiaries or their privies participated as parties in that proceeding. The declaration as amended by judgment continued in effect the general purposes and provisions of the original but included the following paragraph, referred to in this record as Paragraph 1(h), to-wit:

“In respect to the properties and assets in Trust No. 1, W. T. Cock, grantor herein, retains the right at any time prior to his death, by instrument in writing, to change the interest of the above-named beneficiaries in such manner as he shall see fit, but he shall not have the right to substitute any new or additional beneficiaries, provided, however, that if grantor has not exercised this power at the time of his death, then the beneficiaries here-inabove named shall be entitled to their interest as hereinabove provided.”

The parties agree that the trust instrument as a whole “ * * * manifests a clear and unequivocal intent to irrevocably renounce and surrender any right to change, revoke, alter, amend, or terminate the trust, except * * * ” as Paragraph 1(h) might permit.

The broad problem for determination is whether or not the provisions of a written instrument, probated following W. T. Cock’s death as his last will and testament, constitute an exercise of the power W. T. Cock retained in Section 1(h) to change the interest of some or all the trust beneficiaries. A clear understanding and grasp of the meaning of unambiguous Paragraph 1(h) appears to be a necessary step in the solution of the problem.

What is the power reserved, when may the reserved power be exercised, and how may the execution of the power he evidenced? Giving the language used in the paragraph its common and ordinary meaning, it appears the power retained by W. T. Cock is the right to change the interest each named beneficiary may take in trust property when the trust is executed. Equally apparent is the requirement that a change, if made, he evidenced by an instrument in writing. The last clause of the sentence constituting paragraph 1(h), as well as the entire sentence, sets a requirement that W. T. Cock exercise this retained power prior to his death; that is, make the change during his lifetime. In this last respect, the language by repetition discloses a clear and positive direction that the power be executed, the change be made, while W. T. Cock is yet alive. This last provision makes it unmistakable that W. T. Cock’s failure to exercise the retained power while living lets stand the trust instrument’s specification of the interest each beneficiary takes. The retained power was designed to expire at Cock’s death.

The body of W. T. Cock’s probated will is as follows:

“That I, W. T. Cock, of Harrison County, Texas, being of sound and disposing mind and memory, and above the age of nineteen years, do make and publish this, my last will and testament, hereby revoking all wills and codicils by me heretofore made.
FIRST: I direct that all of my just debts shall be paid by my Executor hereinafter named, as soon as practical after my death.
SECOND: I direct that my body shall receive a Christianlike burial, suitable to my circumstances and conditions in life.
THIRD: I give, devise and bequeath all property not included in that certain Trust Agreement dated April 12, 1957, recorded Volume 491, Page 435, Deed Records, Harrison County, Texas, to my devoted friends and companions, R. B. Jay and Mary Edge Jay, jointly and in fee simple.
FOURTH: I give, devise and bequeath all of the property which is included as Trust No. 1 in that Trust Agreement dated April 12, 1957, recorded Volume 491, Page 435, Deed Records, Harrison County, Texas, to my niece, June Griffin, in fee simple.
FIFTH: I constitute and appoint The First National Bank, Marshall, Texas, Independent Executor of this, my last will and testament, without bond, and direct that no action be had in the probate court in relation to the settlement of my estate than the probating and recording of this, my last will and testament, and the return of statutory inventory, appraisement and list of claims of said estate, and all claims due or owing by me at the time of my death.
W. T. Cock,
Testator”

While the testator lives, a will is ambulatory and is intended to operate only upon and by reason of the testator’s death; the written text of a will is inoperative and ineffectual to confer or convey a present right or interest during the lifetime of the maker. It follows that the text of W. T. Cock’s written will, considered as a will, can not direct a change, opera - tive and effective during his lifetime, in the interest June Griffin should have in the trust property. However, the point is made that an instrument such as W. T. Cock’s will may be of a dual character; testamentary in part, but operative in praesenti in other parts.

The W. T. Cock’s will must be analyzed to see if it may be construed as a script, an instrument in writing, operative in consonance with paragraph 1(h) either at the date it was written, or at some date prior to W. T. Cock’s death, and therein manifesting an intent to change to some extent before W. T. Cock’s death the interest of the beneficiaries of Trust No. 1 as set out in the amended trust declaration.

The language of the first, hut unnumbered, paragraph of the will shows a present intention to make a will as of the date of execution. The paragraph numbered FIRST discloses a direction by W. T. Cock to his executor requiring of the executor performance of an act following his, W. T. Cock’s death; nothing is required of the executor prior to death. The paragraph numbered SECOND likewise directs a future act to be performed. It would be ludicrous to suggest that W. T. Cock directed or intended to direct that he be given a Christianlike burial before he died. The next two numbered paragraphs will be passed over for more detailed discussion later. Paragraph numbered FIFTH contemplates and expressly declares that the directions in the paragraph are to be executed after W. T. Cock’s death.

Paragraph numbered THIRD and FOURTH use identical language except in the description of the property mentioned and the recipients thereof. No reason appears for not giving both a similar construction. Each paragraph begins with the words “I give”. Standing alone, such words might suggest an act effective at the time the words were uttered. But “give”, “devise”, and “bequeath” are used in series and when considered in context with the language of the entire instrument the wording imports a testamentary purpose. As commonly understood the language used shows W. T. Cock intended the gift should be effective at his death and not before. It becomes unnecessary to decide whether the language used in paragraph numbered FOURTH would be sufficient to exercise the retained power if the instrument was not testamentary in character.

No escape may be found from the conclusion that the record does not contain an instrument in writing making or intending to make an effective change in the terms of the trust agreement in the respect under discussion during the lifetime of W. T. Cock.

General testimony of the principal lawyer employed by W. T. Cock in the preparation of the trust intrument and will was offered for the purpose of showing the interpretation W. T. Cock placed upon the instruments and to aid the trial court in determining the trustor’s intentions. The following questions and answers epitomizes the testimony:

“Q. And Mr. Cock and you both interpreted that [paragraph 1(h)] to mean that he had power to do that by an instrument in writing, did you not? (Interpolation supplied).
“A. Yes.
“Q. And a Will would satisfy that requirement ?
“A. Yes.”

The evidence offered is not probative of W. T. Cock’s intentions. It is the witness’s statement of his own understanding and his opinion of the interpretation that Mr. Cock placed on both paragraph 1(h) and his will. Assuming evidence of W. T. Cock’s interpretation was admissible, none was offered to show any expression from W. T. Cock that would indicate he thought the language of Paragraph 1(h) would permit a change to be made by will. The only circumstance showing that he may have so interpreted the trust instrument is his attempt by will to devise the property in Trust No. 1 to June Cock Griffin. In this connection, the fact that the trust instrument in its present form is a part of a decree entered in the District Court of Harrison County, at the termination of litigation in which W. T. Cock and the beneficiaries constituted the parties, vitiates any argument that W. T. Cock’s will has force as a practical construction by him that the trust provisions might be changed in this manner. The effort to change the trust by will is more precisely a unilateral interpretation of the trust instrument that clashes with its specific language, an interpretation made without the concurrence of the parties affected thereby. Effect cannot be given to the implied interpretation.

The judgment of the trial court will be reversed. However, to meet the requirements of law, the case is remanded with instruction that the trial court enter judgment consistent with this opinion, order the trustee to proceed with an accounting, and to supply, if needed, supervision and direction as contemplated by Vernon’s Ann. Civ.St. Art. 7425b-24 and other applicable law in winding up the affairs of the trust. Without impinging on any parties’ right to disagree with and appeal from the judgment that may be entered in this court all parties are solicited to suggest in writing the specific terms of a judgment, consistent with the views expressed, to be entered here.

      . For many of the rules that guide the interpretation of trust agreements see Wm. Buchanan Foundation v. Shepperd, Tex.Civ.App., 283 S.W.2d 325; (Reversed and remanded by agreement, 155 Tex. 406, 289 S.W.2d 553), and Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105.

      . Wills, 44 Tex.Jur., Secs. 2 & 6; 94 C.J.S. Wills §§ 127(2) and 128; 57 American Jurisprudence Sec. 15.

      . Such instruments are treated in 94 C.J.S. Wills § 165, p. 963, where it is said:
      “While ordinarily the same instrument cannot operate both as a will and as some other transfer of property, it sometimes happens that an instrument is so drawn that part of its provisions may be sustained as a will and the remainder, relating to another distinct subject matter, as another instrument, as, for example, a contract or a deed. To have this effect it must employ variant and distinct terms in reference to different pieces of property, clearly indicating the intent to give the instrument a testamentary effect as to one and a present operation as to the other. It is obvious that an instrument cannot operate both as a will and a deed with respect to the same property. Neither can the same instrument be both a contract and a will as to the same property.”

      . 2 Texas Law of Evidence (McCormick and Ray), Sec. 1682, p. 519.


author: PHILLIPS, Justice.

text:
    SUN OIL COMPANY et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 11287.
    Court of Civil Appeals of Texas. Austin.
    April 28, 1965.
    Rehearing Denied May 26, 1965.

      A. T. Mullins, Austin, Dean J. Capp, Houston, E. M. Cage, Dallas, for appellants.
    Waggoner, Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., J. S. Bracewell and Linward Shivers, Asst. Attys. Gen., Austin, for appellees.
   PHILLIPS, Justice.

This is an appeal under Article 6049c, Section 8, Vernon’s Civ.St, by Sun Oil Company and Pan American Petroleum Corporation from an order of the Railroad Commission assigning acreage for allowable purposes to the McCurdy State Well No. 4 in the 6000 feet Luby (J. Sand) Field, Nueces County, Texas. E. J. Mc-Curdy, Jr., and W. L. McCurdy, now both, deceased, were named as party defendants along with the Railroad Commission of Texas and its members.

The District Court sustained the Commission’s order. From this judgment, Sun and Pan American have perfected their appeal in this Court.

We affirm the judgment of the trial court.

The order of the Commission pertaining to the field in question adopted field rules including an allowable formula based 100% on productive acreage; set what is known as the Maximum Efficient Rate of Production (MER) for this field; and assigned productive acreage to the several leases in the field for oil allowable purposes which, among assignments to leases not pertinent here, assigned 60 acres to the McCurdy-State of Texas Lease on Petronilla Creek. Appellants Sun and Pan American are complaining here only of the sixty acres assigned the McCurdy-State lease for proration purposes. Inasmuch as the proration formula for each well in the field is based 100% on acreage owned by the various lessees in the field, acreage assigned to the various leases for proration purposes is an important factor in establishing their per well allowables. Appellants maintain that that acreage in Petronilla Creek on the State lease held by the McCurdys between the admitted upstream and downstream limits of production is closer to 16 acres and that they, as adjoining leaseholders, are being illegally drained because of the inclusion of acreage in the abovementioned formula not subject to the McCurdy lease. That because of such excess acreage having been assigned appellees, appellants have been and will be adversely affected and the oil they would otherwise be permitted to produce has been and will be confiscated.

Appellants are before this Court on six points of error.

The first three, which we shall discuss together, are as follows: there is no evidence to support the judgment of the trial court; the trial court’s conclusion was so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust; the court materially erred in holding that the action of the Railroad Commission herein complained of was valid, as such action was not reasonably supported by substantial evidence.

We overrule these points.

The point in controversy here is the number of surface acres in the McCurdy-State lease. Appellees McCurdys and the Railroad Commission defend the action of the Commission on the theory that appellants Sun and Pan American have plead a boundary case over which the Commission has no jurisdiction. Magnolia Petroleum Co. v. Railroad Commission et al, 141 Tex. 96, 170 S.W.2d 189. That if appellants are disputing the boundaries to appellees’ lease, their remedy would be a suit in trespass to try title filed in the District Court of Nueces County, which according to the record in this case, has in fact been filed by the appellants herein against these same appellees over the acreage in question here.

Appellants, on the other hand, do not assert that the Railroad Commission has any authority to settle boundary disputes, however, they maintain that due to the evidence in the record of this case as adduced in the District Court, they established the fact, beyond any reasonable doubt and as a matter of law, that it is impossible for appellees’ lease to contain 60 acres and that for this reason the Commission’s order should be considered void. Appellants maintain further that they are not asking this Court to find that their assertion that the lease contains only 16 acres, at most, is correct. They ask us to find that the Commission’s finding that the McCurdy lease contains 60 productive acres is incorrect as a matter of law; consequently, the Court is not being asked to adjudicate boundaries and does not have a boundary suit before it.

In this respect, appellants introduced into evidence in the trial court a survey, authenticated by the testimony of the survey- or, to the effect that the width of Petronilla Creek between gradient boundary lines encloses less than 16 acres; that the width of navigable streams in Texas is determined by the application and location of the gradient boundary, citing Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, State v. Heard, Tex.Civ.App., 199 S.W.2d 191, aff’d, 146 Tex. 139, 204 S.W.2d 344, among other cases. That the gradient boundary location is at some median point on and along the bank of a stream (never upland from the top of the bank), so that the width between gradient boundary lines in any segment of the stream is not greater than the width between the bank tops in such segment, see Motl v. Boyd and State v. Heard, above. That the width of Petronilla Creek involved here between gradient boundary lines encloses less than 16 acres. That we have here a situation where, as a matter of law, a line run upland from the top of the banks could not be a legitimate boundary line of Petronilla Creek. Appellants also introduced photographs of the creek into evidence which they contend show the tops of the banks.

Appellees, on the other hand, maintain that the basic question to be decided by this Court is whether the Commission can assign productive acreage to an operator who can show that he has a good faith claim to the land to be assigned for proration purposes. That this is the only question involved and that if boundaries and titles thereto are in dispute, appellants have chosen the wrong forum.

We agree with the appellees on this point. In Magnolia Petroleum Company v. Railroad Commission, cited above, the court stated the law in this regard as follows:

“The function of the Railroad Commission in this connection is to administer the conservation laws. When it grants a permit to drill a well it does not undertake to adjudicate questions of title or rights of possession. These questions must be settled in the courts. When the permit is granted, the per-mittee may still have no such title as will authorize him to drill on the land. * * * It grants no affirmative rights to the permittee to occupy the property, and therefore would not cloud his adversary’s title. It merely removes the conservation laws and regulations as a bar to drilling the well, and leaves the permittee to his rights at common law. Where there is a dispute as to those rights, it must be settled in court. The permit may thus be perfectly valid, so far as the conservation laws are concerned, and yet the permittee’s right to drill under it may depend upon his establishing title in a suit at law.
“* * * jj the applicant makes a reasonably satisfactory showing of a good-faith claim of ownership in the property, the mere fact that another in good faith disputes his title is not alone sufficient to defeat his right to the permit; neither is it ground for suspending the permit or abating the statutory appeal pending settlement of the title controversy.” (Emphasis added)

With respect to appellees’ good faith claim to title, the evidence presented in the trial court reflected that as early as January, 1940, the appellees McCurdys had asserted title to the river bed lease and the land in question herein by filing as a matter of public record with the Railroad Commission a survey prepared by a licensed land surveyor platting the acreage in controversy here. This plat was accepted by the Commission and became a part of their official records. This surveyor’s plat was filed with the Commission pursuant to a Commission order in 1937 requiring a plat of the McCurdy lease on Petronilla Creek in the Luby Field.

In addition, appellees introduced into evidence an application to drill a well accompanied by an application for a Rule 37 permit, both filed in 1939, for permission to drill a well on the acreage in question. These applications indicated that the well would be drilled at least 230 feet from the nearest property line and attached a copy of a plat delineating the lease involved with an affidavit attached thereto by the surveyor swearing to its authenticity; another application to drill a well accompanied by an application for a Rule 37 permit was filed in 1939 for another well to be drilled on the property in question showing the nearest lease line to be 160 feet away and attached thereto a copy of a plat similar to that described above; two other Rule 37 applications were filed in 1957 and in 1963 containing information similar to that described in the former permit applications.

With respect to distances to nearest lease lines set out in the abovementioned applications, appellees’ engineering witness testified that where the nearest distance to a lease line is 200 feet, the minimum distance of the lease would be at least 400 feet which would be an approximate width of two acres. This testimony was with reference to the acreage in question as shown by the original McCurdy survey.

Appellees’ engineering witness, having been given a copy of the abovementioned survey prepared for the McCurdys in 1939, said survey having been a part of the Commission’s official records for more than twenty years, planimetered the plat and found that it contained 173 acres; that due to his investigation as a petroleum engineer there were in excess of 60 productive acres within the McCurdy tract. To planimeter is to run a mechanical device along the survey lines of a plat while the devise automatically computes the acreage involved from the distance it travels along the perimeters.

Appellees also introduced a letter from the Commission’s files that had been sent the McCurdys by the Land Commissioner of Texas. This letter was dated April 19, 1963 and stated that the Land Office had received a corrected survey from the Mc-Curdys pertaining to the lease in question; that the field notes therein had been examined and approved for 173.13 acres.

The appellants here were charged with the burden of demonstrating to the satisfaction of the trial court that the McCurdys had not asserted a good faith claim to the acreage in question. We hold that they have not discharged this burden.

Appellants apparently take the position that they produced a survey, introduced it into evidence by the surveyor who did the work; that the survey demonstrated that appellees’ lease could not contain more than 16 acres. They then argue that the evidence introduced at the trial court by ap-pellees was inadmissible leaving their survey uncontroverted.

They maintain that the 1939 survey introduced by appellees was not admissible as it was not introduced by the surveyor who prepared it. That the appellees’ engineer witness was not a surveyor and was not competent to testify with respect to this survey. In this connection appellants cite Maxcy v. Norsworthy, Tex.Civ.App., 19 S.W.2d 926, and Sanders v. Worthington, Tex.Civ.App., 349 S.W.2d 115. Maxcy is cited for the proposition that a map or diagram cannot be received as evidence per se independently of the testimony of the witness verifying or accompanying it. Sanders is cited for the statement that it is not permissible for subsequently made maps and field notes, even though made under the authority of the General Land Office, to change or alter surveys in such a way as to include land not included in the original survey. Both of these cases involved boundary disputes and the law stated therein is applicable to the admissibility of evidence in a boundary dispute.

We do not have a boundary dispute here. We hold that appellees’ evidence was admissible to show that the Commission had substantial evidence before it upon which it could rely on appellees’ good faith assertion of title to the acreage involved for the purpose of applying rules thereto in furtherance of the conservation of the underlying hydrocarbons. This was the Commission’s sole function here.

Appellees’ fourth point of error is that the Commission’s order herein is in fact determining boundaries; that since the Commission has adopted 100% productive acreage as the basis for the formula of distributing the allowable for each well, their finding that the McCurdys have 60 productive acres will give the McCurdys a material advantage in production over adjacent lease holder appellants. We overrule this point and repeat that the findings of the Commission with respect to the area involved are made for the purpose of arriving at a formula that will produce the underlying hydrocarbons in the most efficient manner considered in the light of the conservation laws. Any findings involving acreage assignable to the various leaseholds involved are made subject to the legal titles thereto. See the Magnolia case cited above.

We are not concerned here with the preponderance of the evidence or the best evidence. We are concerned only with viewing a Commission order, presumptively valid, so as to ascertain whether there is substantial evidence of a good faith claim on the part of the appellees herein to the acreage in controversy. Any other construction here would place the Commission in the position of having to determine the gradient boundary of a stream bank which is often a difficult task for a surveyor. The Commission must proceed with its duty of assigning allowables to the various wells upon the presentation of evidence by the interested parties, in good faith, and orders based thereon will not be disturbed by the courts where the differences of opinion are reasonable. The Commission’s reliance on plats and surveys of the area before us that had been in their files for over twenty-four years, that had formed the basis of hearings on other permits and orders concerning the area was reasonable even though this Court, sitting as the Commission, might have ruled otherwise.

Appellants’ point of error number five is that the trial court in admitting into evidence certain photographs, maps, plats, field notes and the conclusions drawn therefrom and the testimony based thereupon, from the Railroad Commission hearing record in this matter, without further authentication by the witness or witnesses who prepared them and simply on the Railroad Commission Secretary’s certificate stating such documents were copies from the Commission’s files, and such improperly admitted evidence and testimony cannot constitute reasonable support of the Commission’s action herein.

We overrule this point.

Art. 3731a, Section 1, V.C.S., is as follows:

“Any written instrument, certificate, record, part of record, return, report, or part of report, made by an officer of this State or of any governmental subdivision thereof, or by his deputy, or person or employee under his supervision, in the performance of the functions of his office and employment, shall be, so far as relevant, admitted in the courts of this State as evidence of the matter stated therein, subject to the provisions in Section 3. As amended Acts 1961, 57th Leg., p. 685, ch. 321, § 1.”

Art. 3737c, V.C.S., is as follows:

“Certified copies of well logs, and records, plugging records, oil and gas production records or reports and all other instruments pertaining to the drilling, completion, operation, abandonment, or plugging of oil and/or gas wells, in this State, required by Statute or by rules heretofore or hereafter adopted by the Railroad Commission of Texas, to be filed with the Railroad Commission of Texas, and which have been heretofore or may be hereafter filed with said Railroad Commission of Texas, shall be admissible in evidence. Such certificate to any such certified copies may be made by any member of the Railroad Commission of Texas, or by the Secretary of said Commission. [Acts 1937, 45th Leg., p. 1118, ch. 449, § 1.] ”

Appellees’ record evidence came within the meaning of these two statutes and the trial court did not err in permitting this record evidence to be used. This was the evidence that was before the Railroad Commission and the trial court and was sufficient for both, as they both found, to support a good faith claim to title by the appellees. Appellants cite Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 and Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 to the effect that evidence or exhibits heard by the Commission is not per se admissible in the District Court trial.

Conversely, these cases do not hold such evidence inadmissible but state that its admissibility depends upon its own merits under the general rules of evidence and without regard to whether it had theretofore been introduced before the agency. We hold that these records were competent evidence to support appellees’ claim to title for the purpose of obtaining well allow-ables from the Commission.

Appellants’ point of error number six is that of the court in admitting in evidence a set of field notes not shown to be in existence upon the date of the Railroad Commission’s action herein, and in permitting testimony as to action taken with reference to filing such field notes in the Land Office and in the County Clerk’s office, Neuces County, after the date of the Commission’s action herein, and such improperly admitted evidence cannot constitute reasonable support of the Commission’s action herein.

This point of error has reference to the field notes filed with the Land Commission and referred to by the letter of the Land Commissioner discussed above. Also under this point of error is a proration plat which the McCurdys filed May 6, 1963 claiming for their unit the 60 acres awarded them in the Commission’s action of March 13, 1963.

We overrule this point.

In trying the issue of the validity of the Commission’s order appellees are not restricted to “evidence” available when the Commission held the hearing.

A proration order of the Commission is an order of legislative nature, an order governing future conduct. Sun Oil Co. v. Railroad Commission, Tex.Civ.App., 68 S.W.2d 609, dism. as moot, Bennett v. Sun Oil Co., 126 Tex. 269, 84 S.W.2d 693. Consequently, when such an order is tested in court, it may be tested by reference to evidence that becomes available after the Commission acted. Such evidence does not prove facts different from those existing when the Commission acted. It merely proves the facts then existing by reference to evidence not available until a later date. The only limitation is the evidence must have existed at the time the Commission acted. Lone Star Gas Co. v. State, 137 Tex. 279, 313-314, 153 S.W.2d 681, 699-700; United Gas Public Service Co. v. Texas, 303 U.S. 123, 145-146, 58 S.Ct. 483, 82 L.Ed. 702; Lone Star Gas Co. v. Texas, 304 U.S. 224, 228, 58 S.Ct. 883, 82 L.Ed. 1304.

Particularly appropriate is the Supreme Court’s decision in Pickens v. Railroad Commission, Supreme Court, 387 S.W.2d 35 delivered February 10, 1965. Here appellants objected to maps and exhibits prepared after the entry of the Commission’s order. The Court stated:

“The trial court admitted the first of these exhibits with the following ruling:
“ T will overrule the objection [of counsel for Pickens et al.] with the following qualification: That I will only consider it if it shows anything that was in existence, or tends to show anything that was in existence, at the time of the order of the Commission, whether it was discovered later, or platted later, studied later, or the results showed later. * * *
“ ‘Now that may be a little complicated, but I felt that I must qualify it to that extent. The limitation in so far as information obtained, experiments and results of experiments made since the Railroad Commission order, is admissible in so far as it might show, or tend to show, what was actually in existence, or conditions in existence at the time of the Railroad Commission order, whether they were then known or not.’
“There was substantially this same ruling on the admissibility of other evidence of the same nature.
“The trial court’s ruling was correct. Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 at 700 (1941). Many of the basic ‘conditions’ which were geologically in existence in the oil field at the time the Commission acted may have existed for a million years; and the fact that they were discovered, or evidence of the condition was adduced, after the Commission’s order would not render the evidence inadmissible. It is, of course, possible for conditions to change within the field; and it would not be entirely fair to the Commission to judge its orders by conditions which have changed since its order. Here, however, the trial court admitted the geological evidence which showed, or which tended to show, what the conditions were as of the time of the order, and what the Commission might reasonably have anticipated to occur as a result of those conditions.”

It is quite clear from appellants’ brief that the objections raised to certified documents offered by appellees all go to the admissibility of such documents to prove title or boundary. As stated previously, appellees’ title was not at issue but rather the question was whether appellees asserted good faith title or claim.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    James BUTE, III, et al., Appellants, v. LEAGUE CITY, Texas, Appellees.
    No. 14581.
    Court of Civil Appeals of Texas. Houston.
    May 13, 1965.

      Moore & Morris, Gene S. Morris, Houston, for appellants.
    Palmer & Bell, Ralph L. Bell, Dickinson, for appellees.
   WERLEIN, Justice.

This suit was brought by James Bute, III, F. M. Abbott, Dave S. Smith, Jr., J. F. Collier and A. J. Eastham, appellants, against the City of League City, Texas, to enjoin it from levying and assessing taxes against appellants’ property and to declare null and void an ordinance allegedly passed and approved by said City on first reading on or about April 19, 1962, which proposed the extension of the corporate limits of such City and the annexation thereto of certain lands including those belonging to appellants.

Appellants set out in their petition the ordinance in question which describes the annexed land and alleged that the City of League City had no authority to pass said ordinance because in doing so it was undertaking to exercise the powers of local self-government limited to “Home Rule Cities,” which it was not qualified to do since when it adopted its charter it did not have more than 5,000 inhabitants, as required by the Constitution and statutes of the State of Texas. Appellants also alleged that the ordinance was of no force or effect because the City did not comply with constitutional and statutory requirements, and because the lands annexed were not adjacent to the corporate limits of the City of League City, Texas, as required by Article 1175, Subdivision 2, Vernon’s Annotated Texas Statutes.

Appellee in its answer moved the court to dismiss the suit because it could only be brought properly by quo warranto proceedings. It denied appellants’ allegations, pleaded the two year statute of limitation as set out in Article 974c-4, V.A.T.S., and alleged that the Legislature of the State of Texas had validated its incorporation as a Home Rule City by virtue of Chapter 222 of the Session Laws of the 58th Legislature, Regular Session, page 609, Senate Bill No. 94.

Appellee’s motion to dismiss came on to be heard, and the court after hearing the same ordered and decreed that the appellants’ petition he dismissed, from which order appellants have appealed.

Appellants assert that they had the right to maintain the present suit in their individual capacities, and that the trial court committed fundamental error in dismissing the case, and also in dismissing the suit instead of suspending it on the docket until the State of Texas could he joined as a party.

Appellants rely upon the case of City of Irving v. Callaway, 363 S.W.2d 832, writ ref., n. r. e., in which the court approvingly refers to the rule stated in 30-A Tex.Jur., Sec. 99, pp. 111-113 as follows:

“ ‘The validity of an annexation by a city cannot he collaterally attacked in a suit by an individual where the city, in attempting to annex territory, acts under authority conferred by law or its charter, and thereafter assumes and exercises authority over the territory attempted to he annexed; such annexation may be questioned only by a direct suit in the nature of a quo warranto or in a proceeding to which the State is a party. However, the act of extension or annexation is subject to collateral attack by anyone, whenever and wherever its validity is called in question, where it is absolutely void because wholly beyond the powers of the municipality — ■ that is, an act not authorized by law or color of law.’ ”

Our Supreme Court announced this rule of law in Lum v. City of Bowie, 18 S.W. 142, where an attempted annexation was attacked by private citizens. The court held that the attack could be made by private citizens and that it was not necessary to bring the action in the nature of a quo war-ranto proceeding, because the proceedings by means of which it was attempted to annex the land were void, and void acts may be questioned collaterally. The rule has been consistently followed in numerous other cases, cited in City of Irving v. Calla-way, supra.

The first question for determination is, therefore, whether the attempted annexation of appellants’ lands by League City is void or whether the proceedings with respect thereto were merely irregular. Appellants have alleged that the lands “allegedly annexed are not adjacent to the corporate limits of the purported City of League City, Texas,” and that at the time the City adopted its present charter it did not have more than 5,000 inhabitants as required by the Constitution and statutes of the State of Texas. They contend that the ordinance in question is void on both grounds and, therefore, they had the right to prosecute the suit in their individual capacities. We would agree with appellants if on the hearing of the plea in abatement the trial court had not impliedly found against them with respect to both of such alleged grounds for declaring the ordinance void.

The ordinance attempting to annex appellants’ property and which is pleaded verbatim by appellants in their petition clearly shows that the boundary line of the land annexed begins “at the most north easterly corner of the present corporate limits line” as of the date of passage of the ordinance. The boundary line then extends out from the corporate limits of the City in a manner to include therein the lands belonging to appellants, and it finally extends to and ends at “the northwesterly corner of the present corporate limits line of League City, * * It is thus seen that appellants’ lands which are annexed by said ordinance are adjacent to the corporate limits of League City, Texas, as required by Article 1175, Subdiv. 2, V.A.T.S. Hence the ordinance is not void on the ground that it attempts to annex territory not adjacent to the corporate limits of such City. The ordinance which appellants have pleaded in their petition and which they seek to attack must he looked to rather than appellants’ allegations in determining whether appellants’ lands are adjacent to the corporate limits of the City. Southwest Stone Co. v. Railroad Commission, Tex.Civ.App., 173 S.W.2d 325, ref., w. m.; Pyron v. Grinder, 1860, 25 Tex.Supp. 159; Behan v. Ghio, 1889, 75 Tex. 87, 12 S.W. 996; Great American Indemnity Co. v. City of Corpus Christi, 192 S.W.2d 917, writ ref., n. r. e.; Rule 59, Texas Rules of Civil Procedure.

In State of Texas ex rel. Rose et al. v. City of La Porte, 386 S.W.2d 782, The Texas Supreme Court Journal, Vol. 8, page 163, our Supreme Court held in effect that when the governing body of the city ascertains that it has population of more than 5,-000 at the time of the adoption of its Home Rule Charter, such ascertainment is presumed to have been validly exercised in the absence of allegations and proof of fraud, bad faith or abuse of discretion. Appellants in the instant case have not alleged that League City or its governing body were actuated by fraud, bad faith or abuse of discretion, and hence the population determination was lodged wtih the governing body of the City, since the constitutional and the statutory enactments failed to specifically prescribe a method for determining the population. The governing body of League City had the implied authority to determine and find that its population at the time it adopted its charter on or about March 27, 1962 was more than 5,000.

In passing upon appellee’s plea in abatement it was necessary for the court to hear evidence as it could not otherwise determine whether or not the ordinance in question was void and hence subject to attack by appellants in their individual capacities. In its judgment dismissing appellants’ suit, the court recited that it heard evidence. Since the appeal is before us without a statement of facts or findings of fact and conclusions of law by the trial court, we are, of course, unable to determine what evidence the trial court heard. The law is well established that in the absence of a statement of facts and findings of fact and conclusions of law by the trial court, the appellate court must presume that the evidence heard by the trial court was sufficient to support the judgment that it entered. In Jennings v. Fredericks, Tex.Civ.App., 190 S.W.2d 707, error ref., the court said:

“Wherefore, there is nothing before this court except the transcript, which contains neither findings of facts nor conclusions of law by the trial court, other than the quoted recitations in its judgment. The court had jurisdiction of the parties and of the subject matter; its judgment is regular in all essential respects upon its face, and is one it had the power to render under the pleadings, there being no fundamental error apparent anywhere. The conclusive presumption on the appeal must, therefore, be that the evidence heard below fully supported the award of the land to the appellees. Rule 386, Texas Rules of Civil Procedure; Parsons v. West, Tex.Civ.App., 159 S.W.2d 224; Hidalgo [County Water Control and Improvement Dist. No. 1] v. Van Horn, 125 Tex. 486, 84 S.W.2d 699.”

See also Fitchett v. Bustamente, 329 S.W.2d 920, writ ref., n. r. e.; Quarles v. Horton & Horton Building Materials Co., Tex.Civ.App.1960, 336 S.W.2d 267; Franke v. Franke, Tex.Civ.App.1963, 373 S.W.2d 891.

This Court must presume, therefore, that the trial court, in sustaining appellee’s plea in abatement, found from the evidence that the lands in question were adjacent to the corporate limits of the City of League City, and that such City in adopting its charter properly ascertained that it did have more than 5,000 inhabitants. Appellants have not pleaded any other irregularities in connection with the passage and approval of the ordinance in question. They have relied solely upon the above mentioned grounds which, if established, would render the ordinance void. Had the trial court found in their favor with respect to such grounds, they could have prosecuted their suit in their individual capacities. The State would not have been in any better position to attack the ordinance in such event than were appellants and hence there would be no reason for quo warranto proceedings.

Appellants contend that the trial court committed fundamental error in dismissing their cause of action upon sustaining appel-lee’s plea in abatement. They assert that such plea was one in limine, and that upon sustaining the same the court should have merely suspended the suit on its docket subject to being revived when the State was joined as a party. They rely upon the case of Dyches v. Ellis, Tex.Civ.App., 199 S.W.2d 694, in which the court said that the proper order or judgment upon sustaining such plea is not to dismiss the case but to retain it suspended upon the docket, subject to be revived if and when the cause of abatement is removed.

In the instant case appellants could not require the State to become a party to their suit or to bring quo warranto proceedings. It was not within their power to remove the cause of abatement of the suit. Quo warranto is not available to a private citizen in his private capacity, although it may be brought upon facts related and verified by him. Staples v. State, 112 Tex. 61, 245 S.W. 639; Adamson v. Connally, Tex.Civ.App., 112 S.W.2d 287. As a general rule, it is necessary to obtain leave of the court to invoke its jurisdiction in a quo warranto proceeding. Had the State of Texas brought quo warranto proceedings with respect to appellants’ contentions in the present litigation, either upon relation of appellants or of its own accord, such proceedings would in effect constitute another suit with the State a party plaintiff. Adamson v. Connally, supra.

In our opinion the rule applicable with respect to whether a suit should be dismissed upon sustaining a plea in abatement is well stated in McDonald, Texas Civil Practice, Section 10.13, page 874, as follows:

“If the plea is sustained, the case will be subject to dismissal when the impediment can not be removed. But if the ground urged is one which merely compels a temporary suspension of the action, or is one which may be cured by an amendment, the court should retain the case upon the docket in suspense until the ground is no longer applicable.”

The impediment in the instant case was one that could not be removed by appellants or cured by amendment, and hence the court properly dismissed their cause of action upon sustaining appellee’s plea in abatement. Dyches v. Ellis, supra; Reed v. Staley, Tex.Civ.App., 139 S.W.2d 851; Becker v. Becker, Tex.Civ.App., 218 S.W. 542.

Judgment affirmed.


author: WILSON, Justice.

text:
    Bob MONGER et al., Appellants, v. W. E. MONGER, Appellee.
    No. 4361.
    Court of Civil Appeals of Texas. Waco.
    April 22, 1965.
    Rehearing Denied May 13, 1965.

      R. A. Kilpatrick, Cleburne, for appellants.
    Morgan & Shropshire, David B. Owen, Fort Worth, for appellee.
   WILSON, Justice.

Appellee obtained a judgment in a non-jury trial for title to and possession of land based on a pleaded written agreement between himself and his parents to the effect that in consideration of his taking care of his parents and providing for them during their lives, “upon their death the land would become” his property.

Although denominated a trespass to try title action, it is not such. The only points, as briefed, however, are that all the evidence admitted to support the judgment was inadmissible under the Dead Man’s Statute, Art. 3716, Vernon’s Ann.Civ.St., and the evidence was consequently legally insufficient to sustain it.

The only evidence that appellee performed the alleged obligation to “take care of” his parents and “provide them with a living” as the agreement required was that of appellee’s sister who was originally joined as a defendant. Her testimony, if admissible, supports the implied finding on these issues. Appellants’ objections that she was incompetent as a witness and her testimony contravened Art. 3716 were overruled upon a showing that she had filed a disclaimer, and that before the suit was filed she had executed an unrecorded deed to the land naming appellee grantee.

Appellants’ position is that the witness was a “party” within the meaning of Art. 3716 (which prohibits parties from testifying as to transactions with decedents under specified circumstances), or was so interested under the statute as to he incompetent as a witness, despite the disclaimer and the deed. The basis of the contention is the following testimony of appellee and his sister. He testified: “Q. If you win the land involved in this suit, is your sister going to own a part of it? Are you going to give her part of your interest if you get this land? A. Yes.” He testified there was no written agreement. “Just what we talked about”; and “Q. If you win this law suit Mrs. Sample will own half and you will own half? A. Yes.” The evidence of appellee’s sister, Mrs. Sample, was: “I never had any agreement about the division of it. Q. Are you going to own half of it if he gets it? A. Yes, sir. Q. You will get half of it? A. Yes, sir. I can give you my word on that”; and “I can have half of the property; he’s already promised me that faithfully.” She testified also. “Q. That is just an understanding between brother and sister? A. Yes, sir. I know he will.” And “Q. You are noi saying you have anything from a legal standpoint that you could insist on? A. No, I never did try to get any.”

To come within the statutory prohibition a witness must “have or claim some actual interest in the subject matter of the suit pertaining to the estate of the deceased which may be affected by the judgment rendered.” Disclaimer and divestiture of that interest ordinarily destroys the disqualification of the witness as a “party” under Art. 3716; and it is immaterial that the primary purpose of the conveyance was to remove that disability. Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291, 295. If the transaction of divestiture was merely simulated to circumvent the statutory disqualification, however, and “the real ownership or beneficial interest” remains in the witness-grantor, the latter is nevertheless a “party” within the statute. Id. See Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809; cf. Hawkins v. McCowan, Tex.Civ.App., 246 S.W.2d 322, 324, writ ref.

In determining the competency of the witness the trial judge was required to determine preliminarily a fact issue, i. e., whether the witness retained such ownership or interest. Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219, 221. The test applied on review by the Supreme Court in the Ditto case was whether the trial court did or not “abuse his discretion,” tested in turn by whether “the evidence affords a rational basis for the inference” reached as to whether the beneficial interest was actually divested. The court in the present case was authorized to conclude that there was an actual divestiture, and that the witness had a mere unenforceable hope or expectation of reacquiring the interest. We are unable to say from the record that his discretion was abused.

Affirmed.

ON MOTION FOR REHEARING

Appellant now makes the contention, which we do not find in his brief, that ap-pellee’s sister is a “party” or has a disqualifying interest under Art. 3716 because she is a warrantor in a warranty deed conveying the land involved. The cases of Bennett v. Virginia Ranch, Land & Cattle Co., 1 Tex.Civ.App. 321, 21 S.W. 126, no writ; and Gee v. Jernigan, Tex.Civ.App., 83 S.W.2d 1102, writ dism., do hold that where such a warrantor is joined as a defendant so as to make the judgment binding on him, he is disqualified even though he has filed a disclaimer.

The mere fact that one is a warrantor, however, does not make him incompetent. In Stevens v. Masterson’s Heirs, 90 Tex. 417, 39 S.W. 292, 294, the warrantor was named a party hut was not served with process and did not appear. It was urged that actual notice of pendency of the suit was sufficient to bind him, even though plaintiff had asked that the warrantor be dismissed as a defendant. The Supreme Court rejected the contention, holding that if knowledge of pendency of the suit was sufficient to disqualify a warrantor under the statute, “then no warrantor could testify in a case in which parties are disqualified”, because he would discover the pendency when his testimony was taken, “and would thereby be disqualified under such rule.” His evidence was held to be admissible.

Cooper Grocery Co. v. Neblett, Tex.Civ.App., 203 S.W. 365, relied on by appellant was reversed, 221 S.W. 963, by the Supreme Court. Foster v. Cumbie, Tex.Civ.App., 315 S.W.2d 151, 154, writ ref. n. r. e., does not sustain the contention of the appellant. The other cases cited are not in point.

It is obvious that the evidence in this case would have justified the trial court in determining that the witness had or claimed “some actual interest in the subject matter of the suit” which might be affected by the judgment so as to disqualify her, as appellant insists. That is not the problem. We must decide whether the trial court’s discretion was abused. We cannot conclude that it was. The motion for rehearing is overruled.