author: COLLINGS, Justice.

text:
    J. C. TURNER, Jr., Executor, Appellant, v. TRAVELERS INSURANCE COMPANY et al., Appellees.
    No. 4033.
    Court of Civil Appeals of Texas. Eastland.
    April 1, 1966.
    Rehearing Denied April 22, 1966.

      Scarborough, Black, Tarpley & Scarborough, Davis Scarborough, Abilene, for appellant.
    John J. Watts, Clyde C. Bishop, Odessa, for appellee.
   COLLINGS, Justice.

This is a workmen’s compensation case. Cyril A. Graham was fatally injured while in the course of his employment for Merit Builders, Inc. He was survived by an adult son, Roger Cyril Graham, an adult daughter, Donna King, his mother Ona Loreta Parker, and two sisters, Mrs. Ollie M. Rogers and Mrs. Wanda Presnail. This suit was brought by J. C. Turner, executor of the will of Ona Loreta Parker, deceased mother of Cyril A. Graham, deceased. He sought a determination of the beneficiaries of Cyril A. Graham, and to establish that the estate of Ona Loreta Parker was entitled to the death benefits owed by Travelers Insurance Company. Plaintiff asserted that Mrs. Parker was at the time of the death of her son entitled to such workmen’s compensation benefits. Roger Cyril Graham, joined by his sister, answered alleging that he was a son, dependent upon his father and therefore entitled to such benefits. The jury found that Roger Cyril Graham was an adult dependent son of Cyril A. Graham, and judgment was rendered awarding to him the statutory death benefits. The' executor of the mother’s estate has appealed.

Appellant’s brief sets out a general statement of the facts involved. This statement is not questioned by appellees, and, as set out in appellant’s brief, is in substance as follows: At the time of his death, the workman Cyril A. Graham was divorced and living with his mother. He had two children, both of whom were over twenty-one years of age. A married daughter, Donna King was the oldest of his children but it is not contended that she was dependent on her father. Appellee, Roger Cyril Graham is the other child, a boy, who was twenty-one years and ten months of age at the time of his father’s death. He was then living with his mother, who was divorced from his father. He was working part time in the laboratory of a hospital, earning approximately $15.00 per week and going to school as a freshman in college.

This suit was brought by the executor of the will of Ona Loreta Parker who died after the decease of her son, Cyril A. Graham. The executor claimed that Mrs. Parker, the mother of the deceased workman, became the sole beneficiary of the workmen’s compensation benefits and that her rights as such became fixed on December 13, 1964, when her son died. Roger Cyril Graham and his sister, Donna King, joined by her husband, answered alleging that Roger Cyril Graham was an adult dependent son of Cyril A. Graham and, therefore, entitled to all the workmen’s compensation benefits that accrued as a result of his death. Travelers Insurance Company paid the money into the registry of the court to be delivered to the proper beneficiary.

The jury found that the adult son, Roger Cyril Graham, was dependent on his father and, based upon said findings, the court entered judgment awarding all benefits to him. On this appeal, the executor of the mother’s estate insists that, as a matter of law, the mother was the beneficiary, urging that the judgment should therefore be reversed and rendered. In the alternative, appellant urges that the proof was insufficient to show that Roger Cyril Graham was a dependent adult child. Appellant also urges that the court erred in permitting Roger Cyril Graham to testify to transactions with his father over the objection that such testimony violated the terms of the “dead man’s” statute; that ap-pellee had the burden of establishing that he was dependent on his father and the court erred in failing to so place the burden of proof in the issue submitted to the jury, and that the court’s definition of the word “dependent” was incorrect in that it was too broad and did not confine the jury to the particular circumstances of this case.

Appellee, Roger Cyril Graham, urges that the court did not err in awarding compensation to him as the adult dependent son even though the evidence shows the deceased workman left a mother surviving him. Article 8306, Section 8a, Vernon’s Ann.Tex.Civ.St., designates the beneficiaries in such cases and provides in part as follows:

“The compensation provided for in the foregoing section of this law shall be for the sole and exclusive benefit of the surviving husband who has not for good cause and for a period of three years pri- or thereto, abandoned his wife at the time of the injury, and of the wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, and of the minor children, parents and stepmother, without regard to the question of dependency, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employé; and the amount recovered thereunder shall not be liable for the debts of the deceased nor the debts of the beneficiary or beneficiaries and shall be distributed among the beneficiaries as may be entitled to the same as herein-before provided according to the laws of descent and distribution of this State * * * »

It is noted that the portion of Article 8306, Section 8a quoted above, provides that the benefits shall be distributed among the named beneficiaries according to the laws of descent and distribution. The Probate Code of the State of Texas, Section 38, is the governing statute in regard to descent and distribution. The portion of that statute applicable is as follows:

“(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to * * * the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3. If there be neither father nor mother, then the whole of such estate shall' pass to the brothers and sisters of the intestate, and to their descendants.”

In appellant’s point number one it is contended that the court erred in awarding workmen’s compensation benefits to an adult dependent child where the proof shows that the deceased workman left a surviving mother. Article 8306, Section 8a, supra, specifies the persons who may be beneficiaries but does not list the beneficiaries in the order in which they are entitled to participate in such benefits. The statute provides that the benefits “shall be distributed among the beneficiaries as may be entitled to the same * * * according to the laws of descent and distribution.” The applicable portion of the statute concerning descent and distribution, as above set out, plainly indicates that where an intestate dies leaving no husband or wife his estate shall descend to his children. The statute does not separate children into adult, minor, dependent or non-dependent children, but refers to any child of the deceased intestate. Appellee Roger Cyril Graham was a child as provided by Section 38 of the Probate Code and a dependent child as contemplated by Article 8306, Section 8a supra. He was therefore entitled to receive the benefits provided by the workmen’s compensation act to the exclusion of the mother of the deceased workman. The court did not err in awarding workmen’s compensation benefits to the adult dependent child Roger Cyril Graham, even though the deceased workman left a surviving mother. Appellant’s first point is overruled.

In appellant’s second point it is contended that the evidence was insufficient to support the submission of an issue on the question of the dependency of the adult child, Roger Cyril Graham. The record shows that such adult dependent child, son of the deceased workman, became twenty-one years of age about eight months before the death of his father in December of 1964. The evidence shows that Roger Cyril Graham enrolled in college in September 1964; that prior to the time he entered college his father for several years contributed approximately $20.00 per month to his support, and that after the son enrolled in college the contributions were increased to approximately $80.00 per month. Contributions were made by the deceased workman from July of 1962 until the time of his death in December of 1964. Prior to the time Roger Cyril Graham entered college in September of 1964, he had been earning approximately $30.00 per week, but after entering college his earnings amounted to only $15.00 per week. Mrs. Ruby Graham, the mother of Roger Cyril Graham testified that her son was more than twenty-one years of age when his father passed away and that the father had contributed approximately $240.00 to the support of Roger Cyril Graham during the fall of 1964; that such funds were spent on necessities for Roger Cyril Graham and that Roger Cyril Graham’s father contributed substantially to the support of Roger Cyril Graham prior to the fall of 1964.

It is held that the test in such cases is “[w]as the alleged beneficiary relying in whole or in part upon the labors of deceased for support?” Federal Underwriters Exchange v. Hinkle, 187 S.W.2d 122 (Tex.Civ.App. Ref.W.M.). An examination of the evidence as a whole in our opinion shows that the evidence is sufficient to support the submission of an issue on the question of the dependency of the adult child, Roger Cyril Graham. Appellant’s second point is overruled.

Roger Cyril Graham was permitted to testify, over appellant’s objection, about contributions to him by his father during the three months he was in college, immediately prior to his father’s death. It is contended in appellant’s third point that the court erred in permitting the adult child to testify to such transactions with his father over appellant’s objection that such testimony violated the terms of the “Dead Man’s Statute”. The statute in question is Article 3716, V.A.T.C.S., and provides as follows:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

It is also to be noted that Article 8306, Section 8a, V.A.T.C.S. provides in part as follows:

“Such compensation shall not pass to the estate of the deceased to be administered upon, but shall be paid directly to said beneficiaries when the same are capable of taking, under the laws of this State, or to their guardian or next friend, * ⅜ * »

This is not a suit by the heirs or legal representatives of the deceased workman. It is a suit by the executor of the estate of the mother of the deceased workman, claimed to be the beneficiary entitled to the benefits accruing because of his death. The workmen’s compensation act specifies the benefits that named beneficiaries are entitled to receive, and Roger Cyril Graham’s claim to the proceeds here in controversy is not because he is an heir of the deceased but because he was named as a beneficiary in the workmen’s compensation act. The fact that the determination of whether he was the beneficiary entitled to receive such proceeds was by the terms of the workmen’s compensation act determined according to the laws of descent and distribution does not alter the fact that he was entitled to recover as a beneficiary and not as an heir. The court did not err in permitting Roger Cyril Graham, the adult child, to testify concerning his transaction with his deceased father.

The court submitted only one issue to the jury which is as follows:

“Do you find from a preponderance of the evidence that Roger Cyril Graham was not dependent, as hereinafter defined, upon his father, Cyril A. Graham, at the time of his father’s death?”

The jury answered that Roger Cyril Graham was a dependent upon his father.

In appellant’s fourth point it is contended that Roger Cyril Graham had the burden of establishing that he was a dependent upon his father and that the court erred in failing to place the burden of proof on the adult child in the issue submitted to the jury. This point is not well taken and is overruled. This suit was instituted by appellant J. C. Turner, executor of the estate of Ona Parker, the mother of the deceased. Appellant’s contention was that in his capacity as executor of said estate he was entitled to all the benefits under the workmen’s compensation act upon the death of her son. A claimant’s rights to compensation rest not only upon allegation and proof that the claimant is one of the named beneficiaries under the workmen’s compensation act, but further that the deceased workman was not survived by another named beneficiary in a higher statutory classification with preferential rights over the claimant. The executor, therefore, had the burden of proving that the adult child of the deceased workman was not a dependent child. In our opinion no reversible error is shown by the action of the court in not placing the burden of proof on the adult child in the issue submitted to the jury. United Employers Casualty Company v. Duncan, Tex.Civ.App., 151 S.W.2d 354.

The court in its charge to the jury defined the term “dependent” as follows:

“The term ‘dependent’, wherever used in this charge, is meant one who is sustained hy another or relies in whole or in part for support upon the aid of another, who looks to another for support, and relies on another in whole or in part for reasonable necessaries in substantial amount aiding the Recipient to live consistent with the Dependent’s or Recipient’s position in life.”

In appellant’s fifth point it is urged that the court’s definition of the word “dependent” was not correct in that it was too broad and did not confine the jury to the particular circumstances of this case. The exact definition submitted to the jury in the instant case was approved in Postal Mutual Indemnity Company v. Penn, 165 S.W.2d 495, (Tex.Civ.App. Writ Ref.W.M.). The definition was also approved by our Supreme Court in Stanaland v. Traders & General Ins. Co., 145 Tex. 105, 195 S.W.2d 118.

The judgment is affirmed.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    SHELL OIL COMPANY, Appellant, v. George STANSBURY et al., Appellees.
    No. 6793.
    Court of Civil Appeals of Texas. Beaumont.
    March 31, 1966.
    Second Rehearing Denied April 20, 1966.

      C. E. Nadeau and R. H. Whilden, Houston, Thos. A. Wheat, Liberty, for appellant.
    Fred W. Moore, Houston, Chap B. Cain, Liberty, for appellees.
   PARKER, Justice.

The opinion in this cause of March 3, 1966, is withdrawn. This opinion will be substituted therefor and judgment rendered as hereinafter set forth.

George Stansbury and wife sued Shell Oil Company for damages resulting from drainage of oil and gas from their undivided %ths interest in the oil, gas and minerals in a 506.85 acre tract except as to a 200 foot strip known as the Devers Canal Strip. They also sued for failure of Shell Oil Company reasonably to develop their land. On a jury verdict, the Stansburys recovered damages in the sum of $85,750.-00 as against Shell Oil Company. The Stansburys will be called appellees or Stansbury; Shell Oil Company will be called appellant or Shell.

The plat below will aid in understanding the facts.

Shell Oil Company owned an oil, gas and mineral lease covering H. & T. C. R. R. Survey 161, Abstract 235, with Bill Daniel as lessor. The Bill Daniel wells 1, 2 and 4 are shown upon this plat. The Bill Daniel No. 1 is 467 feet north of the south line of said section. The Bill Daniel No. 4 is 1,303 feet north of the south line of said section. The Bill Daniel No. 2 is 1,651 feet north of the south line of said section and 661 feet east of the west line of said section. No. 3 was a dry hole.

The Bill Daniel wells 1, 2 and 4 were completed in what is called the Yegua Y-3 sand, primarily an oil producing sand.

On the Eliz. G. Miller Survey, Abstract 910, is the location of a producing gas well completed in what is called the Yegua Y-6 sand, a completely different producing horizon than the Y-3 oil sand. On April 19, 1958, the Stansburys, as lessor, executed an oil, gas and mineral lease covering their undivided %ths interest in the minerals owned by them in a 506.85 acre tract out of the Thomas J. Evans Survey, providing for a ⅛⅛ royalty on oil and gas to be paid by lessee. Within such 506.85 acre tract is what is known as the Devers Canal Tract 200 feet in width. As to the Devers Canal Tract it was stipulated and agreed as follows:

“It is stipulated and agreed by and between the plaintiffs, George Stansbury and wife, Dorothy Mae Stansbury, Dev-ers Canal Company and Shell Oil Company, for the purposes of this suit plaintiffs will concede and agree that Devers Canal Company owns the minerals in and under the right-of-way which crosses part of the Stansbury land involved in this case, it being particularly agreed and understood that this agreement shall be without prejudice to the claims of plaintiffs in the severed action hereinafter mentioned and that this agreement is made only with reference to this particular litigation.”

On March 18, 1959, the Devers Canal Company executed a lease to Shell Oil Company covering the canal strip of 200 feet out of Section 166, which is the Thomas J. Evans Survey, and the Eliz. G. Miller Survey. At the time of the drilling of the Daniel wells 1, 2, 3 and 4 and the gas well on the Eliz. G. Miller Survey, Shell owned leases covering 100% of the minerals on all lands under consideration subj ect to the royalties in the various leases provided to be paid. Shell acquired these leases directly from the land owners or by assignment from Paul DeMotte. The Stansbury lease had a 320 acre gas pooling agreement. The Bill Daniel lease had no pooling agreement. The Rich lease covering the Eliz. G. Miller had a 320 acre gas pooling agreement.

The jury findings are:

1. Shell Oil Company drained condensate, oil and gas from the Yegua Y-3 sand in the Stansbury land through Shell Oil Company’s Bill Daniel Nos. 1 and 4 wells during the period extending from about July 1, 1960, up to September 1, 1964.
2. The amount of condensate, oil and gas drained from Stansbury land by Shell through its Bill Daniel Nos. 1 and 4 wells July 1, 1960 to September 1, 1964, amounted to 77,000 barrels of oil and 196,000 thousand cubic feet of gas.
3. A reasonably prudent operator would have drilled a well on the Stans-bury land to prevent drainage of condensate, oil and gas through Shell Oil Company’s Well No. 1 on the Bill Daniel tract on or before July 1, 1960, after the Bill Daniel No. 1 began to produce oil and gas in paying quantities.

In answering the above special issue the jury was charged:

“In connection with your answer to this special issue, you are charged that a reasonably prudent operator is not obligated to prevent drainage of minerals, if any, that is oil, gas and condensate, if any, from his lessor’s land through said lessee’s well or wells on adjoining land unless a reasonably prudent operator with knowledge of the risks involved not owning the draining wells would protect against such drainage by drilling a well and also not unless a reasonably prudent operator would have a reasonable expectation of producing minerals, if any, that is oil, gas or condensate, if any, from such contemplated well in paying quantities. The term ‘paying quantities’ as used in this charge, means production of minerals, if any, from such contemplated well in such quantities that would give the lessee a profit after deducting the costs of drilling, operating and marketing, including but not limited to, production taxes payable by the operator to the State of Texas on $4ths of the production, all ad valorem taxes payable on the operator’s interest in the lease and also all penalties, if any, due by the producer on account of overproduction of gas by the operator in violation of rules of the Texas Railroad Commission. You are likewise charged that the term ‘reasonably prudent operator’ as used in this charge, means an operator of ordinary prudence, that is having neither the highest nor the lowest prudence, but on the contrary an operator of average prudence and intelligence, acting with ordinary diligence under the same or similar circumstances.”
4. Such well inquired of in 3 above would have been drilled by a reasonably prudent operator on or before April 5, 1961.
5. A reasonably prudent operator would have drilled a well on the Stans-bury land to prevent drainage of the condensate, oil and gas through Shell Oil Company’s Well No. 1 on the Bill Daniel tract on or before January 10, 1962, after the Bill Daniel No. 1 began producing oil and gas in paying quantities. The same instruction as to “reasonably prudent operator” and “paying quantities” were given to the jury in answering this last issue as in 3.
6. A well drilled on the Stansbury land would have produced between July 1, -1960 to September 1, 1964, 193,000 barrels of oil and 493,000 thousand cubic feet of gas.
7. A well drilled on the Stansbury land from April S, 1961 to September 1, 1964, would have produced 129,000 barrels of oil and 345,000 thousand cubic feet of gas.
8. From January 10, 1962 to September 1, 1964, a well on the Stansbury land would have produced 83,000 barrels of oil and 225,000 thousand cubic feet of gas.
9. The market value of condensate, oil and gas produced from the Stansbury land if a well had been drilled thereon from July 1, 1960 to September 1, 1964, would have been $686,000.00.
10. A well on the Stansbury land from April 1, 1961 to September 1, 1964, would have produced condensate, oil and gas of a value of $458,000.00.
11. From January 10, 1962 to September 1, 1964, such a well on the Stansbury land would have produced condensate, oil and gas of a value of $293,000.00.

Appellant’s 1st point of error is as follows:

“The Court erred in not giving effect to the lease provision pertaining to the drilling of offset wells. The last sentence of paragraph 6 of the lease provides, in effect, that the obligation to drill offsetting wells does not arise until there is a well on adjacent land within offset distance as fixed by the spacing rules of any government body having jurisdiction of the filed. Under the stipulated facts and undisputed evidence, there was no such well. In the alternative, there was no such well until the effective date of the Special Field Rules.”

The last sentence of paragraph 6 of the lease is the offset provision and is as follows :

"In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land and within offset distance as fixed by the spacing rules of any governmental regulatory body having jurisdiction for the field in which said well is located and draining the leased premises, or acreage pooled therewith, Lessee agrees to drill such offset wells as a reasonably prudent operator would drill under the same or similar circumstances.”

The Railroad Commission Statewide Rules were in effect until January 10, 1962, at which time Special Field Rules went into effect. The lease was entered into in contemplation of the Statewide Railroad Commission Rules then in force and the power of the Railroad Commission in the future to regulate the operation and production from this lease and other leases in the area. Butler v. Jenkins Oil Corp., 128 Tex. 356, 97 S.W.2d 466 (1936); Haby v. Stanolind Oil and Gas Co., 228 F.2d 298 (Fifth Circuit 1955). Appellant completed the Bill Daniel No. 1 well as an oil discovery in the Yegua Y-3 sand July 1959. This well is located 467 feet north of the north line of the land described in the lease from appellees. In March of 1960 the production of oil from Bill Daniel wells Nos. 1 and 2 began. Each were producing from the Y-3 oil sand. The Statewide Field Rules in effect at the time such Bill Daniel wells were brought in as producers and were producing provided:

“No well for oil or gas shall be drilled nearer than nine hundred thirty three (933) feet to any well completed in or drilled to the same horizon on the same tract or farm, and no well shall be drilled nearer than three hundred thirty (330) feet to any property line, lease line or subdivision line.”

Appellant contends that the provision that no well shall be drilled nearer than 330 feet to any property line, lease line or subdivision line was an offset distance. We do not consider it so to be. It is a spacing rule but not an offset distance for the purpose of determining the obligation of the lessee to drill an offset well. Under appellant’s contention, it, as the owner of the Bill Daniel lease, had to violate a rule of the Railroad Commission on the Bill Daniel lease as a condition precedent to appellant being obligated to drill an offset well on appellees’ land. The law will not enforce an agreement to do that which the same law says will not be done. Such construction as urged by appellant would be ineffective under Texas Employers’ Ins. Ass’n v. Tabor, Tex.Com. App., 283 S.W. 779; Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947); Hennessy v. Automobile Owners’ Ins. Ass’n, 282 S.W. 791, 46 A.L.R. 521 (Tex.Com. App., Sec. A, 1926, opin, adopted by S.Ct.); American Nat. Ins. Co. v. Tabor, 111 Tex. 155, 230 S.W. 397 (1921); Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808.

Under the above authorities, the offset provision should be construed as requiring a legal act if such construction is possible and logical. The Statewide Rules had no offset distance. Any well on the Bill Daniel lease under the Statewide Rules would be within offset distance as fixed by the spacing rules of such governmental regulatory body. Therefore, under governmental regulations in force at that time appellant could lawfully drill such offset well or wells on appellees’ land as.a reasonably prudent operator would drill under the same or similar circumstances, subject to such offset well or wells on appellees’ land not being located within 933 feet of any completed well or within 330 feet of any property line, lease line or subdivision line.

A lessor and lessee may contract so that lessee is never under obligation to drill an offset well. To so contract, however, the language must be very clear. In this lease there is no contract that lessee shall not be under obligation to drill an offset well. The offset clause under consideration recognized that under the Statewide Field Rules no maximum offset distance had been fixed but that in the future governmental authority could have a rule fixing a maximum offset distance. There being iio offset distance fixed by any governmental authority, Shell was obligated to drill such offset wells as a reasonably prudent operator would drill under the same or similar circumstances on the Stansbury land to protect it from drainage whether it owned leases on adjoining land or not. Appellant’s first point of error is overruled.

Appellant’s second point of error is:

“The Trial Court erred in not recognizing and giving effect to the partial release executed by Shell Oil Company dated March 15, 1961, recorded March 24, 1961. Said partial release pertained to the Yegua Y-3 sand, the only formation in controversy, as to the lease executed by Appellees, the leases executed by the owners of the outstanding ¼ minerals interest, the Devers Canal lease, and other leases.”

On March 15, 1961, Shell released the Stansbury lease of April 19, 1958, insofar as said lease covered and applied to the Yegua Y-3 sand. This instrument was filed for record March 24, 1961. Appellees contended in the trial court and in this court:

“Under the terms of the lease Appellant had no right to release only one sand under Appellees’ land covered by the lease because the release clause as written in the lease pertains to acreage and it is necessary that the release be by acreage and not by horizons or sands. By the terms of the lease Appellant could pool or unitize horizontally by sands but under the provisions of the lease it could release only vertically or by acres.”

Actually, pooling was limited to gas.

In the lease from appellant of April 19, 1958, the pertinent provisions as to release are:

“3. * * * Nothing herein shall impair Lessee’s right to release as provided for in Paragraph 5 hereof. * * * ”
«5. * * * Lessee may at any time or times execute and deliver to Lessor or to the depository above named or place of record a release or releases covering any portion or portions of the above described premises and thereby surrender this lease as to such portion or portions and be relieved of all obligations as to the acreage surrendered, and thereafter the rentals payable hereunder shall be reduced in the proportion that the acreage covered hereby is reduced by said release or releases.”

Paragraph 4 is typewritten, and not printed, and provides:

“4. Lessee is hereby granted the right, at its option, to pool or unitize all or any part of the above described land and of this lease as to any or all horizons thereunder, with other lands, lease or leases, or portion or portions thereof, or horizon or horizons thereunder, so as to establish units pooled for gas and containing not to exceed the following number of acres per unit: 320 acres for production from a gas well completed below a depth of 9,000 feet from the surface. Should governmental authority having jurisdiction prescribe the creation of units larger than those specified, any such unit may be established or enlarged to conform in size with those prescribed by Governmental regulations. The first pooled unit established pursuant to the provisions of this paragraph shall include not less than 160 surface acres out of the above-described land covered by this lease. Lessee shall file for record in the office of the County Clerk of the County in which the leased premises are situated an instrument described and designating the pooled acreage as a pooled unit. Lessee may, at its election, exercise its pooling option hereunder after commencing operations for or completing a gas well on the leased premises or on other land pooled therewith, and the pooled unit may include, but is not required to include, land or leases upon which a well capable of producing gas in paying quantities had theretofore been completed or upon which operations for the drilling of a well for gas have theretofore been commenced. Operations for drilling on or production of gas from any part of a pooled gas unit which includes all or a portion of the land covered by this lease, regardless of whether such operations for drilling were commenced or such production was secured before or after execution of the instrument designating the pooled unit, shall be considered as operations for drilling on or production of gas from land covered by this lease, whether or not the well or wells be located on the premises covered by this lease, and the entire acreage constituting each such unit shall be treated for all purposes, except the payment of royalties on production from the pooled unit, as if the same were included in this lease. For the purpose of computing the royalties to which owners of royalties and of gas from the pooled unit, there shall be allocated to the land covered by this lease and included in said unit a pro rata portion of the gas produced from the pooled unit, after deducting that used for operations on the pooled unit. Such allocation shall be on an acreage basis— that is to say, there shall be allocated to the acreage covered by this lease and included in the pooled unit that pro rata portion of the gas produced from the pooled unit which the number of surface acres covered by this lease and included in the pooled unit bears to the total number of surface acres included in the pooled unit. Royalties hereunder shall be computed on the portion of such gas production so allocated to the land covered by this lease and included in the unit as if such production were from such land. As used in this paragraph, ‘gas’ means all of the production, both gaseous and liquid, produced from a well which is classified as a gas well by the Texas regulatory body having jurisdiction.”

In construing the written or typewritten provisions of this lease, effect is given to them over printed provisions. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344, 304 S.W.2d 267. Provisions in the lease when apparent conflict must be reconciled and harmonized whenever possible by reasonable interpretation so that the contract as a whole may be given effect. The duties of appellant to develop and to protect the leased premises from drainage exists as to each reservoir or stratum or horizon or sand lens containing sufficient oil and gas to invoke such obligations, express or implied. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774; Railroad Commission v. Shell Oil Company, Tex., 380 S.W. 2d 556 (1964).

During the primary term in the absence of production or drilling operations at the option of the lessee the lease could be maintained by the payment of rentals, which rental could be reduced by releases of part of the acreage as provided in that portion of Paragraph 5 quoted above. This is not the problem before this court.

In paragraph 5, the word “acreage” in the same sentence cannot have different meanings without a clear explanation of the application of different meanings. There is no such explanation. Delay rentals could only be reduced by a release of acreage although the first part of the sentence provides for a “release or releases of any portion or portions of the above described premises”. This means that the release must be of any portion or portions of the acreage of the above described premises. An acre is a measure of land measured on the surface of the land but including the earth beneath to the center of the earth. The release provision must be construed as written. In releasing and surrendering the lease, Shell had to comply with the specific provision for surrender and release. Shell in its brief states:

“Appellees had not requested or demanded a release, their only demand being the letter of January 3rd, 1961, representing the drilling of an offset well.”

Actually, appellees in that letter demanded the drilling of an offset well.

Acreage denotes a number of acres of land. A release of a part or portion of a number of acres of land would have reduced the number of acres retained by the lessee. The Shell releases of the Y-3 sand horizon did not reduce the number of acres covered by the lease. The measurement factor in the word acreage was ignored. The Y-3 sand releases were not authorized by the lease contract, hence void. Such limited releases could not be effective except by mutual agreement of Shell and the Stansburys. This did not occur. Appellant’s second point of error is overruled.

Appellant’s 10th point of error is as follows:

“The Trial Court erred in not recognizing and giving effect to the legal requirement of notice to the lessee before an action of this type accrues, which requirement is made definite by a lease provision concerning the giving of notice by the lessor. This error extended to the admission of evidence, the charge of the Court and the judgment.”

Trial of the instant suit began September 30, 1964. Prior thereto, on September 23, 1964, Shell released all of its right, title and interest in the Stansbury lease of April 19, 1958. The trial court judgment denied all relief except the recovery of damages by appellees against appellant “for its failure and refusal to so protect plaintiffs’ land from drainage in the sum of $85,750.00, representing one-eighth (⅛⅛) of the market value of the minerals which said Stansbury' well would have produced as found by the jury, * *

Thus, as tried, this was a suit for damages and not a suit to forfeit, cancel and terminate the Stansbury lease. Paragraph 9 of the lease provides:

“9. The breach by Lessee of any obligation arising hereunder shall not work a forfeiture or termination of this lease nor cause a termination or reversion of the estate created hereby nor be grounds for cancellation hereof in whole or in part. In the event Lessor considers that operations are not at any time being conducted in compliance with this lease, Lessor shall notify Lessee in writing of the facts relied upon as constituting a breach hereof, and Lessee, if in default, shall have sixty days after receipt of such notice in which to commence the compliance with the obligations imposed by virtue of this instrument.”

Appellant urges that notice and demand under the above quoted paragraph were required before suit for damages could be filed for failure to protect appellees’ land from drainage and failure to drill wells. General Crude Oil Co. v. Harris, 101 S.W. 2d 1098, 1101 (Tex.Civ.App.1937) holds that in a suit to recover damages for failure to develop reasonably, notice is not a prerequisite to liability. This view is sustained in Foster v. Atlantic Refining Co., 5 Cir., 329 F.2d 485 (n. w. h.). Appellant’s 10th point is overruled.

Appellant’s 12th point of error is as follows:

“The finding on Special Issue No. 3, which is one of the issues on which the judgment is based, is not supported by any evidence, or, in the alternative, is contrary to the great weight and preponderance of the evidence.”

In Special Issue No. 3 the jury found that a reasonably prudent operator would have drilled a well on the Stansbury land to prevent drainage of minerals; L e., oil, gas or condensate, through Shell Oil Company’s well on the Bill Daniel tract on or before July 1, 1960, after the Bill Daniel No. 1 began to produce oil and gas in paying quantities. Bill Daniel No. 1 well was completed July 6, 1959, in the Y-3 sand. Bill Daniel No. 2 well was completed September 24, 1959, and both wells were producing in paying quantities. Daniel No. 3 was completed as a dry hole October 18, 1959. By the end of 1959 appellant, through the drilling of such wells, had knowledge of the nature of the field, the thickness of the Y-3 sand, the pressures to be encountered. The limit of the field to the north had been defined by the dry hole and to the west by a well on the Davis tract. On July 17, 1959, the Bill Daniel No. 1 was flowing through a %4ths inch choke, bottom hole pressure 8,885 pounds. On July 17 to July 20, 1959, the company made a subsurface pressure survey of the well. A further such test was made on March 7, 1960. Houston laboratories made tests from reservoir analysis of samples of liquid and gas from the Bill Daniel No. 1 well showing the viscosity of reservoir fluid, pressures, vaporization data, etc. Voluminous testimony as to these tests is in the record. Appellees’ experts testified that a reasonably prudent operator would have drilled a well on the Stansbury land by July 1, 1960. Bill Daniel No. 1 had been a producer or capable of producing large amounts of oil and gas from July 7, 1959. Bill Daniel No. 2 had been producing or had been capable of producing since September 24, 1959. The geologist, Cantrell, testified it would take approximately 30 days to drill and complete a well on the Stansbury land into the Y-3 reservoir. The estimated cost of same would run between $180,000 to $190,000. He testified that from July 1, 1960, to September 1, 1964, in his opinion such well would have produced 193,140 barrels of oil and 493,862 MCF of gas. Poynor, consulting petroleum engineer, estimated the total production acreage in the Y-3 reservoir at 383 acres, of which 73 acres were in the north part of the Stansbury tract and 240 acres in the south part of the Bill Daniel tract. Seventy acres he estimated to be in the Davis tract. According to his estimate, the Bill Daniel tract would have 77.3 per cent of the Y-3 sand reservoir and the Stansbury tract 15.1 per cent. He testified that at the time of the trial 10½ billion cubic feet of gas and approximately 1,292,000 barrels of oil remained in the reservoir of the Y-3 sand, that only 25 per cent of the oil had been produced from the reservoir and only 10 per cent of the gas. He further testified that in his opinion gas having a net value of $29,400 and oil having a value of $245,000 or a total of $274,400 in value had been drained from the Stansbury land through the Bill Daniel wells Nos. 1 and 4. William P. Swearingen, a petroleum engineer, testified from the evidence above outlined that he would have drilled a well on the Stansbury land on or before July 1, 1960; that he would drill a well on it at the time of trial except for this lawsuit. He testified that in his opinion a well on the Stans-bury tract from July 1, 1960, to September 1,1964, would have produced approximately 190,000 barrels of oil and approximately 500,000 MCF of gas. Appellants’ senior production geologist testified that the Bill Daniel No, 1 was draining from the Stans-bury land, there being nothing to prevent Bill Daniel No. 1 from draining within a radius of 2,320 feet. The Shell petroleum engineer, Miller, testified against the existence of any oil in the Stansbury land but did testify that in his opinion in this field the recovery of oil under the water drive would be about 60 per cent of the total oil in place, the original recoverable reserves being 1,226,000 barrels.

In obtaining an order by the Railroad Commission of the State of Texas establishing the special field rules, Shell on January 3, 1962, filed certain exhibits and furnished testimony before that body in support of its application for the adoption of the special field rules. Included was an interference test on the Yegua Y-3 sand establishing that a well 2,320 feet from another producing well in this reservoir when shut-in was drained by the other well which was producing. One .report stated:

“Test shows that a well is capable of draining in excess of 80 acres with the radius of an 80 acre circle being 1,053 feet and the area of a circle of 2,320 feet radius is 388 acres.”

Based upon this testimony and exhibits, the special field rules were established with producing units increased to 80 acres from 20 acres. The production history furnished on the Y-3 sand before the Railroad Commission showed that the Daniel producing wells were producing oil in substantial paying quantities.

In considering the “no evidence” contention that Special Issue No. 3 was not supported by any evidence that part of the record most favorable to ap-pellees is controlling and appellant’s contention is overruled. In considering that part of appellant’s point of error contending that the jury finding as to Special Issue No. 3 was contrary to the great weight and preponderance of the evidence the entire record and all evidence is reviewed. The finding of the jury thereon is not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and, accordingly, that portion of such point is overruled.

Appellant’s 11th point of error is as follows:

“The Trial Court erred in not having the jury determine what would have been a reasonable time within which a lessee should have drilled and completed a well after the obligation, if any, accrued.”

Appellant’s 13th point of error-is as follows:

“The Trial Court erred in refusing to have the jury determine where a reasonably prudent operator would have drilled on Appellees’ land.”

Points 11 and 13 will be considered together. Appellant did not request the trial judge to submit an issue as to either of the above matters. Appellant cites no authorities in support of its complaint. Substantially, the matters complained of were evidentiary and not ultimate issues. Appellant’s 11th and 13th points of error are overruled.

Appellant’s 9th point of error is as follows:

“The Trial Court erred in failing to properly instruct the jury that for the drilling of an offset well a reasonably prudent operator is entitled to a reasonable profit. The definition of ‘paying quantities’ included in the instruction is an adaptation of the definition applied to the habendum clause of a lease and is not appropriate for the drilling of offset wells. As given, the definition is satisfied if there is any profit, however small. As defined, the profit could become a loss because not all expenses or deductions are included and because, under the pleadings, plaintiffs owned only a ¾ interest in the minerals.”

The above asserted error relates to Special Issue No. 3 and the instruction in connection. Appellant correctly contends:

“that a reasonably prudent operator for oil and gas would, taking into consideration the surrounding circumstances, expect the proposed well to produce in paying quantities. The term 'paying quantities’ as used in this connection means such quantities as would yield to the lessee a reasonable profit after deducting the entire cost of drilling, equipping and operating the well or wells,”

and the royalties payable to the lessors as well as the deductions mentioned in the court’s charge as given in this case.

Shell had all minerals in the 506.85 acres under lease burdened with a %th royalty on oil and gas to be paid by lessee (Shell) to the lessors in proportion to their respective interest. Part of the instruction in connection with Special Issue 3 is:

“The term ‘paying quantities’ as used in this charge, means production of minerals, if any, from such contemplated well in such quantities that would give the lessee a profit after deducting the costs of drilling, operating and marketing, including but not limited to, production taxes payable by the operator to the State of Texas on ^ths of the production, all ad valo-rem taxes payable on the operator’s interest in the lease and also all penalties, if any, due by the producer on account of over-production of gas by the operator in violation of rules of the Texas Railroad Commission.”

The costs of drilling, operating and marketing includes (a) the cost of equipping the well for production, (b) the payment of the total ½⅛ royalties on oil and gas, and (c) many other expenses that could be itemized at great length. The instruction to the jury required that in answering Special Issue No. 3 all of such costs and payments be deducted in arriving at their answer.

Appellant’s 9th point of error is overruled.

Appellant’s 3rd point of error is as follows :

“The Court erred in not holding that under the express development provision of the lease Appellant had drilled all required wells on the acreage covered by the Rich-Stansbury 320-acre gas unit.”

In August 1960 Shell commenced drilling the Rich-Stansbury unit well No. 1 which was completed as a gas well in the Y-6 sand December of 1960. Shell formed a 320 acre gas unit as to the Y-6 sand on December 31, 1960. This 320 acre gas unit included the north 140 acres covered by the Stansbury lease. The Y-6 gas sand was an entirely different producing horizon, stratum or lens from the Y-3 oil sand. As stated in Clifton v. Koontz, 325 S.W.2d 684, each separate productive stratum or horizon is entitled to separate development. The contention that all required wells on the acreage covered by the Rich-Stansbury 320 acre gas unit had been drilled by Shell ignores the duty of Shell to drill offset wells to the Y-3 oil sand on the Stansbury land and to develop that sand reservoir on the Stansbury land. As stated in Clifton v. Koontz, supra, there is no implied obligation to explore as to oil, gas and minerals leases in Texas. Exploration is for the purpose of discovery. After discovery of oil, gas or other minerals in paying quantities, the obligation to reasonably develop comes into being. In March 1960 appellant commenced production from Daniel wells Nos. 1 and 2. They were in the Y-3 oil sand. The jury found that Shell’s Bill Daniel wells 1 and 4 drained condensate, oil and gas from the Y-3 sand from under the Stansbury land from about July 1st until September 1, 1964, and that a reasonably prudent operator would have drilled a well on the Stansbury land to prevent drainage of condensate, oil and gas through Shell’s well No. 1 on the Bill Daniel tract on or before July 1st, 1960. Appellant’s point of error No. 3 is overruled.

Appellant’s 4th point of error is as follows:

“In the alternative and regardless of the validity of the release of March 15, 1961, Appellees should have given Appellant (a) notice within a reasonable time of their claim that the release was ineffective and (b) an opportunity to give a further or complete release. Until this was done the release was valid or should have been deemed valid.”

Stansbury testified he never agreed to the release of March 15, 1961. He made no transaction relying upon the void release. Appellant argues that it placed no burden on Stansbury, contending in effect that it was a gift and was beneficial to Stansbury to accept it. It was simply an illegal attempt on the part of Shell to relieve itself of the duty to drill an offset well on the Stansbury land demanded by Stans-bury to stop further damages accumulating against it. Under such circumstances there is no presumption of' acceptance by Stansbury of such void and unauthorized release. No one can be presumed to do that which is not to his advantage. Appellant’s 4th point of error is overruled.

Appellant’s Sth point of error is:

“The Trial Court erred in not recognizing and giving effect to the release dated November 6, 1963. This release covered all of Appellant’s interest in the lease except as to the unit (Yegua Y-6) formation. As reflected by the judgment, the Trial Court ruled that this release was not authorized by the lease. This ruling is erroneous as a matter of law and because (a) Appellees made no claim or allegation that this release was invalid or ineffective, (b) Appellees’ trial pleadings assert that it is proper and pray that the Court hold that Appellees’ land be freed of claims pursuant to the releases, and (c) it complies with Appellees’ written demand.”

Stansburys filed their suit on December 31, 1962. Almost a year later, on November 6, 1963, Shell executed a release as to all horizons in the Stansbury land except the Y-6 gas sand in the north 140 acres. The trial court properly found “that the releases executed by defendant dated March 15, 1961, and November 6, 1963, were not authorized by plaintiffs’ lease.” Trial of the instant suit commenced in the trial court on September 30, 1964. Prior thereto, on September 23, 1964, Shell released all of its right, title and interest in the Stansbury lease of April 19, 1958. This release was of the Y-6 sand as well as of all other sands. Under these circumstances the purported release of November 6, 1963, was not in response to any demand of appellees reflected in letters of their attorney dated November 15, 1962, and November 16, 1962. This November 6, 1963, release was executed and filed for record by Shell almost one year subsequent to the institution of the present suit by the Stans-burys. On May 20, 1964, George Stansbury in his affidavit in opposition to the motion for summary judgment filed by Shell Oil Company plainly stated he was not asking for cancellation of the lease but for damages, and further stated:

“At no time has this plaintiff ever indicated any waiver of his right to have his land protected from drainage from the Bill Daniel wells as described in his petition nor has he waived his right in any way to have the premises reasonably developed after production was obtained from the unit. At no time has plaintiff indicated that he accepted the release of the Yegua Y3 sand as a settlement of the covenants mentioned, it being plaintiff’s contention that the abandonment of the Yegua Y3 sand alone did not release the lessee, that is the Shell Oil Company, from any obligation to protect the land from drainage or from any obligation to reasonably develop same.”

Shell’s motion for summary judgment was refused July 2,1964.

Appellant’s 5th point of error is overruled.

Appellant’s 6th point of error is:

“Appellees, having failed to prove and having failed to obtain a jury finding that Appellant in any way prevented the drilling of a well on their land, have not established a cause of action for damages resulting from the failure of Appellant to drill an off-set well.”

The answer to this point of error is simple. There is nothing to show why appellant didn’t drill the offset well except that it did not want to and did not do so. Shell was the owner of the Stansbury lease. The point of error is overruled.

Appellant’s 7th point of error is as follows:

“The Trial Court erred in failing to recognize that Appellees had no interest in the minerals in the Devers Canal tract. By stipulation these minerals were owned by Devers Canal Company. Despite the stipulation, over Appellant’s objection Appellees were permitted to introduce exhibits and to present testimony on productive acres, well locations and drainage on the basis that the minerals in said tract belonged to Appellees. The jury findings are based on testimony which included the canal tract in Appellees’ land. There is no evidence to support the findings or., in the alternative, they are contrary to the great weight and preponderance of the evidence.”

Appellant’s 8th point of error is as follows:

“Since production from the proposed well could not exceed the allowable as set by the Railroad Commission, the Trial Court erred in not instructing the jury on the method that they should use to calculate or determine such allowable. Under the Special Field Rules, allowable is determined by the ‘continuous and contiguous acreage which can reasonably be considered to be productive of oil.’ The jury should have been requested to find the number of continuous and contiguous productive acres in the Y-3 sand under the Stansbury land exclusive of the Canal. The jury findings on Special Issues Nos. 6 through 11 are based on a full 80-acre allowable but there is no basis for such an allowable under the evidence or under Appellees’ pleadings that their land was ‘largely depleted’ in November 1963. There is no evidence to justify such findings or, in the alternative, the findings are against the great weight and preponderance of the evidence.”

The 7th and 8th points of error are considered together. The stipulation as to the Devers Canal tract was in evidence. The expert, Cantrell, and other experts testifying in "behalf of appellees, recommended three different locations on the Stansbury land. The location of the Devers Canal Company right-of-way was drawn on the map from which Mr. Cantrell and Mr. Poy-nor testified. The experts in their opinion considered a well drilled on the Stansbury land would be as good as the Bill Daniel No. 1, indicating that it would drain part of the Canal Company right-of-way which under the law of capture, it could rightfully do. Poynor estimated that there might be 10 to 13 acres of the Devers Canal Company right-of-way included in his estimate. Under the rules of the Texas Railroad Commission dated June 20,1957, revised June 24, 1957, Poynor was justified in including the Devers Canal Company right-of-way in his estimate, such memorandum reading as follows:

“Proration and drilling units established for individual wells drilled or to be drilled shall consist of acreage which is contiguous and can reasonably be considered to be productive of oil or gas.
“An exception to the contiguous acreage provision may be granted, at the operators’ election, when acreage that is to be included in such proration or drilling unit may be separated by a long, narrow right-of-way tract.
“Where a right-of-way traverses such a proposed unit and the fee title of the right of way is established in another party, and such right of way causes a separation of acreage into non-contiguous tracts described, at the operators’ election, may be assigned to a proration or drilling unit as an exception to the accepted non-contiguity rule; provided that the amount of acreage within the right of way within said unit shall be deducted from the total acreage assignable to the unit unless and until, if the title to such right of way is in question, such time as that acreage is either found to belong to the operator or is unitized by the interested parties.”

In explanation of the suggested Stansbury wells and to support the testimony of ap-pellees’ experts, a plat was introduced in evidence showing the contours on top of the Y-3 sand at SO foot intervals. It was marked up by various witnesses as a result of examination and cross-examination by such experts. These experts testified as to 20 acre units, as to 80 acre units, as to al-lowables including discovery allowables and as to the periods of time such regulations, respectively, were in force.

The stipulation as to the Devers Canal Tract and the existence of such strip did not prevent drainage of oil by the Daniel wells from the Stansbury land.

The number of continuous and productive acres in the Y-3 sand under the Stansbury land exclusive of the canal was not an ultimate issue.

All calculations of appellees’ experts as to production an offset well would produce were based on the allowables of the Railroad Commission for respective periods in question on the producing units authorized.

Also the calculations are in accordance with the actual authorized production from the Bill Daniel wells.

In considering the “no evidence” contentions in Special Issues 7 and 8 that part of the record most favorable to appel-lees is controlling and appellant’s contention is overruled. In considering that part of appellant’s points 7 and 8 contending that the findings of the jury are contrary to the great weight and preponderance of the evidence, the entire record and all evidence is reviewed. The findings of the jury thereon are not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and, accordingly, that part of such points 7 and 8 are overruled.

Judgment of the trial court affirmed.

Appellant’s Motion for Rehearing overruled.


author: DIXON, Chief Justice.

text:
    Ellis CARP et al., Appellants, v. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY et al., Appellees.
    No. 16669.
    Court of Civil Appeals of Texas. Dallas.
    March 25, 1966.
    Rehearing Denied April 15, 1966.
    See also, Tex., 388 S.W.2d 409.

      Price Daniel, Austin, Douglas E. Bergman, Dallas, and Quentin Keith, Beaumont, for appellants.
    Mark Martin, Dallas, Charles Babb, Wag-goner Carr, Atty. Gen., Hawthorne Phillips and John Reeves, Asst. Attys. Gen., Tom Gee and Will Garwood, Sp. Asst. Attys. Gen., Austin, for appellees.
   DIXON, Chief Justice.

This suit was filed by appellants Dr. Ellis Carp, Dr. S. J. Rogers and Dr. N. Jay Rogers against Texas State Board of Examiners in Optometry, hereinafter called the Board, and also against all but one of the members of the Board individually. Appellants pray for a judgment declaring invalid a rule adopted December 21, 1959 by the Board known as the Professional Responsibility Rule, referred to hereinafter as the Rule. Appellants also pray that the Board be permanently enjoined from enforcing the Rule. Permission for appellants to bring this action against the State of Texas was granted in Senate Concurrent Resolution No. 8, dated January 15, 1962.

Dr. N. Jay Rogers, one of the appellants, though a member of the Board, voted against the adoption of the Rule and joined other plaintiffs in bringing this suit.

The effect of the Rule is to prohibit the use of an assumed name in the practice of optometry, and to impose strict limitations on the operation of multiple offices and the splitting of fees. A summary of its provisions will be found in a footnote hereto. The Rule itself is set out verbatim in a foot note to the opinion of our Supreme Court in Texas State Board of Examiners in Optometry et al. v. Carp et al., 388 S.W.2d 409, 411 (1965).

The Doctors Rogers testified that they maintain 82 offices at numerous locations in the State of Texas. Since 1939 they have operated under the trade name, “Texas State Optical”. Dr. N. Jay Rogers testified that the average cost of setting up an office is between $10,000 and $12,000. In addition they usually are obligated to pay rent of $400 or $500 per month under a lease term of normally ten years. Over a period of 24 years preceding the trial they have spent more than a million dollars to publicize their assumed name.

Dr. Carp testified that he operates 71 offices in the State of Texas. He uses several assumed names, among them being “Lee Optical”, “Luck One Price Optical”, “Mack Optical” and “Mesa Optical”. He employs 84 optometrists. He testified that he had spent three or four or five million dollars advertising the assumed name, “Lee Optical”.

This suit was the subject of a mandamus proceeding before our Supreme Court, Texas State Board of Examiners in Optometry v. Carp, supra. The suit had gone to trial in the district court under the preponderance of the evidence rule. A jury was unable to agree to answers to several special issues, so a mistrial was declared. The Supreme Court in granting a writ of mandamus held that the case should have been tried under the substantial evidence rule. Since the facts had been fully developed and only issues of law remained to be resolved, the trial court was directed to enter an appropriate final, appealable judgment under the substantial evidence rule.

In its opinion the Supreme Court stated that there were two decisive questions of law in this case: (1) whether in adopting the Rule the Board acted within the powers delegated to it by the Legislature; and (2) if so, whether the Board’s action was arbitrary, capricious or unreasonable because not supported by substantial evidence.

Following the pronouncement by the Supreme Court the district court proceeded to render judgment. The court held that the adoption of the Rule was within the lawful powers of the Board, was reasonably supported by substantial evidence, and has been in full force and effect since its adoption. It was ordered that appellants take nothing by their suit.

In their first two points on appeal appellants contend that (1) the Board in adopting the Rule exceeded the power delegated to it by the Legislature and (2) that the Rule is inconsistent with the statute under which the Board operates. We agree with appellants and accordingly declare the Rule to be invalid and of no force and effect.

The subject of optometry is treated in our Civil Statutes in Articles 4SS2 to 4566-1, Vernon’s Ann.Civ. St. For p'enal provisions see Articles 735-738a, Vernon’s Ann.Penal Code.

In Article 4563 the Legislature has specifically listed the ten grounds upon which the Board in its discretion may refuse to issue a license, or may cancel, revoke or suspend a license.

The powers of the Board are set forth in Art. 4556, V.A.C.S. We quote the material part of the statute:

“The Board shall have the power to make such rules and regulations not -inconsistent with this law as may be necessary for the performance of its duties, the regulation of the practice of optometry and the enforcement of this act.”

The cardinal rule in statutory construction is that courts should ascertain and be guided by the Legislature’s intention. We recognize that Art. 4556, V.A.C. S. clothes the Board with “broad regulatory powers, many of which are somewhat discretionary in nature * * Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376, 378. We recognize also that the statutes relating to optometry are to be liberally construed to effectuate the purpose intended by the Legislature. Art. 10, Sec. 8, V.A.C.S. Nevertheless, a careful study of available records convinces us that it was not the intention of the Legislature to clothe the Board with the power it has exercised in adopting the Rule. In paragraphs which follow we shall state the reasons which have impelled us to this conclusion.

(1) By naming the ten grounds for refusing or canceling a license the Legislature in effect expressed its intention to exclude all others. The maxim, expressio unius esf exclusio alierius (the naming of one thing excludes another) is applicable here. Though not conclusive the maxim has been pronounced a logical, sensible and sound rule of statutory construction. 53 Tex.Jur.2d 205-206. It has often been applied in determining the powers which have been or have not been delegated by the Legislature to administrative boards, commissions, licensing authorities and others. Commercial Standard Ins. Co. v. Board of Ins. Commissioners, 34 S.W.2d 343 (Tex.Civ.App.); Foshee Refining Co. v. State, 73 S.W.2d 1098, 1100 (Tex. Civ.App.); State v. Mapel, 61 S.W.2d 149, 152 (Tex.Civ.App.); State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238; Ex Parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479, 484; Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652, 655; Huntress v. State, 88 S.W.2d 636, 643 (Tex. Civ.App.); McCamey v. Hollister Oil Co., Tex.Civ.App., 241 S.W. 689 (aff. by 115 Tex. 49, 274 S.W. 562); Clark v. Briscoe Irr. Co., 200 S.W.2d 674, 682. The maxim has also often been applied in other jurisdictions. See Sutherland, “Statutory Construction ”, Vol. 2, p. 412, and 50 Am.Jur. 238.

(2) A principle of statutory construction closely akin to the expressio unius maxim is this: an administrative agency may implement and fill in details relating to statutory provisions listing or naming powers or activities granted or proscribed, but the agency may not by its own rules extend or add to the powers or activities listed in the statute. We think the principle is applicable here. In taking upon itself the task of listing in Art. 4563, V.A.C.S. the grounds upon which a license to practice optometry may be denied or canceled the Legislature plainly manifested its intention to retain such prerogative unto itself and not to delegate it to the Board; and the Board lacks authority to add to the grounds named in the statute. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874, 876; Teacher Retirement System of Texas v. Duckworth, 153 Tex.Civ. 141, 260 S.W.2d 632 (opinion of Court of Civ.App. adopted by 153 Tex. 141, 264 S.W. 2d 98); Board of Ins. Commissioners v. Texas Employers Ins. Ass’n, Tex.Civ.App., 189 S.W.2d 47; Ketring v. Sturges, 372 S.W.2d 104 (Mo.); Golding v. Schubach Optical Co., Inc., 93 Utah 32, 70 P.2d 871.

(3) We believe the legislative intention was plainly manifested in 1953 when the Legislature rejected a proposed statutory amendment which would have prohibited the practice of optometry under an assumed name. The Beaumont Court of Civil Appeals on October 23, 1952 rendered a decision upholding the right of appellants Rogers to practice under an assumed name. Southwestern Bell Telephone Co. v. Texas State Optical, 253 S.W.2d 877 (1952), no wr. hist. In reaching its decision the court pointed out that neither under common law nor under our statutes was such practice prohibited; and that it was for the Legislature, not the courts, to change the law. The record before us shows that following this judicial decision House Bill No. 5 was introduced in the House of Representatives in 1953. The Bill as drawn prohibited the practice of optometry under an assumed name, and limited the number of offices of each practitioner to two. The Bill was rejected by the House. Thus the Legislature expressed its intention net to prohibit the practice of optometry under an assumed name and not to prohibit the operation of multiple offices. The rejection was all the more significant because it came with knowledge that the Beaumont court had held that in the absence of a statute forbidding it, the practice under an assumed name was not illegal.

In Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482, 485, the Commission of Appeals in an opinion adopted by the Supreme Court had this to say;

“When we come to examine the legislative history of section 11 of article 911a, supra, we find that there is no escape from the conclusion that it was the legislative intent that such statute should not be construed so as to allow the insurance company to be joined in the same suit with the bus operator. When such statute, section 11, supra, which was contained in H.B. No. 50, Regular Session 40th Legislature, 1927, was pending in the Senate, an amendment thereto was offered to apply to such section. This amendment provided in express terms that the bus owner and his insurer could be sued in the same action. This amendment v^as duly adopted by the Senate, and was contained in the act as it originally passed that body. Senate Journal, 40th Legislature, Regular Session 1927, p. 673. Such provision was not in the act as it originally passed the House. After the act, of which section 11 is a part, was passed by the Senate with amendments, the bill was returned to the House as amended, and the House refused to concur in the Senate amendments. House Journal, Regular Session, 40th Legislature, 1927, p. 1175. The bill went to a free conference committee. The report of this committee, which was adopted by decisive majorities in both Houses, eliminated the above-mentioned Senate amendment. We think this history of the act evidences a legislative intent not to permit insurance companies under section 11, supra, to be joined in damage suits in the same action with the bus owners. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 524 [70 A.L.R. 1484].
“It is evident that section 11 of article 911a, supra, does not expressly authorize the joinder of the insurer in damage suits against the insured. If such right is held to exist, it must be put into the statute by implication. No court should read into a statute by implication that which both Houses of the Legislature have expressly rejected by decisive votes. On this question we will here quote from Judge Greenwood’s opinion in Love v. Wilcox, supra: ‘No court could justify putting into a statute by implication what both Houses of the Legislature had expressly rejected by decisive votes. The House and Senate Journals leave no room for doubt of the legislative intent to deny the power exercised by the State Committee in seeking to debar names from the primary ballots under the resolutions of February 1, 1930. Once the legislative intent is ascertained, the duty of the court is plain. To refuse to enforce statutes in accordance with the true intent of the Legislature is an inexcusable breach of judicial duty, because an unwarranted interference with the exercise of lawful, legislative authority.’ ”

Appellees frequently cite and quote from the opinion in Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (1957). In that case our Supreme Court passed on the validity of three rules adopted by the Board: (1) the “Bait Advertising Rule”, (2) the “Basic Competence Rule” and (3) the “Corporate Practice Rule”. It was held that these rules were valid; that the Board in adopting them did not exceed the powers delegated to it by the Legislature; that the rules were not contrary to or inconsistent with the Legislative Act; but were simply a proper attempt by the Board to implement the statutory provisions, especially Section (b) of Article 4563 pertaining to fraud, deceit or misrepresentation in the practice of optometry.

After a careful study of the Kee case and the three rules of the Board there under scrutiny we have concluded that the holdings there are not applicable here. The Supreme Court said that the three rules were adopted by the Board to implement and “to fill in the details relating to proscribed actions” of the statutory provisions. Since they implement but do not undertake to add to the list of statutory prohibitions listed -in Art. 4563, V.A.C.S. they are not invalid. As previously stated in this opinion we think the Rule now before us for consideration does attempt to add to the prohibitions in Article 4563, though the Legislature has declined to add the very prohibitions which are set out in the Rule.

Appellants’ first two points on appeal are sustained.

In their third and fourth points appellants contend that the Rule is arbitrary and capricious and has no support in substantial evidence. There is no merit in these points. If the Legislature had delegated authority to the Board to adopt the Rule we would be compelled to say that the Board’s action is supported by substantial evidence. The statement of facts includes nearly 3,000 pages of testimony of many witnesses plus numerous exhibits. We declare the Rule invalid only because the Board in adopting it acted beyond the powers delegated by the Legislature. Appellants’ third and fourth points are overruled.

The substance of appellants’ points five, six, seven and eight is that the Rule violates both the Federal and State Constitutions because it impairs the obligation of contracts, takes or destroys appellants’ property without due process, bears no reasonable relationship to the health and well-being of the citizens of Texas, is retroactive in its legal effect and permits the Board to delegate unlawfully its rule-making powers to outsiders (members of the profession of optometry).

If the Rule is unconstitutional it is only because (as we have held) in adopting it the Board exceeded the powers which the Legislature delegated to it. It is not unconstitutional for the reasons urged by appellants. It has long been settled that legislative bodies and administrative agencies with proper delegation of authority may regulate professions and businesses under the police power. Texas State Board of Examiners in Optometry v. Carp, Tex., 388 S.W.2d 409; Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376; Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053; Texas Nat’l Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627; Sherman v. State Board of Dental Examiners, Tex.Civ. App., 116 S.W.2d 843; Turner v. Bennett, Tex.Civ.App., 108 S.W.2d 967; International & G. N. R. Co. v. Railroad Commission of Texas, 99 Tex. 332, 89 S.W. 961; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Lewis v. Michigan State Board of Dentistry, 277 Mich. 334, 269 N.W. 194; Williamson v. Lee Optical of Okla., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. Points five, six, seven and eight are overruled.

Appellants ask for but the trial court denied an injunction. Though we have declared the Rule invalid we see no occasion for the issuance of an injunction. The question of injunctive relief will arise only if and when the Board undertakes to enforce the Rule.

Because we believe that the Board exceeded its delegated powers in adopting the Rule we reverse the trial court’s judgment and here render judgment declaring the Rule invalid and of no force and effect. The court’s refusal to grant an injunction is affirmed.

Reversed and rendered in part and affirmed in part.

      . In substance the Rule provides as follows :
      Sec. 1. No optometrist shall:
      (a)Divide, share or split fees with any lay person, firm or corporation. However, it shall not be construed a violation of the Rule if an optometrist (1) pays an employee in the regular course of employment, or (2) leases space on a percentage or gross receipts basis; and (3) he may sell or assign accounts receivable.
      (b) Divide, share or split fees with another optometrist or physician except (1) on a division of services and (2) then only with the knowledge of the patient, but (3) the Rule will not be interpreted to prevent partnerships.
      (c) Practice under or use an assumed name in connection with his practice. However (1) partners may practice under their full or last names, and (2) optometrists employed by other optometrists may practice under their own names in an office listed in the names of their employers.
      (d) Use or allow his name or professional identity to be used on the door, window, wall or sign of any office or location where optometry is practiced unless said optometrist is actually present and practicing therein during office hours.
      (e) Practice in any office or location where any name or professional identification on any sign shall indicate that such office or location is owned, operated or supervised by any person not actually present and practicing therein during office hours.
      (f) Requirements (d) and (e) above shall be deemed satisfied if the optometrist is (1) physically present more than half the total hours the office is open for at least nine months of the year; or (2) physically present in such office at least one-half the time such person conducts, directs or supervises any practice of optometry ; or (3) regularly makes personal examinations of eyes at such location or regularly directs or supervises such examinations.
      Sec. 2. The willful or repeated failure of an optometrist to comply with any of the provisions of Section 1 shall be considered prima facie evidence that such optometrist is guilty of violation of law, and shall be grounds for filing charges to cancel, revoke or suspend his license, or to enjoin him from continuing such violation.

      . After this appeal had been submitted and orally argued appellants with our permission filed a supplemental brief to which was attached an exhibit containing certified copies showing the legislative history leading up to the passage in 1939 of the optometry statutes, including Art. 4563 which lists the grounds for refusing or canceling a license to practice optometry. These statutes, according to these certified copies, had their genesis in House Bill No. 410, which as originally introduced prohibited the use of assumed names. The House Committee to whom House Bill No. 410 had been referred changed the Bill so that it specifically authorized the trade name practice. When the Bill came to the floor the House refused to pass the Bill as originally introduced, or as recommended by the Committee. Both the provision prohibiting the assumed name practice and the provision authorizing it were stricken from the Bill before it was finally passed by the House and Senate and signed by the Governor in its present form.
      Appellees object to our consideration of the exhibit attached to appellants’ sup» plementai brief because said exhibit and copies were not introduced in evidence at the trial of the case. Appellees contend that we cannot take judicial notice of them. It has been held that courts will not take judicial notice of a statute that has never been enacted. Dungan v. State, 156 Tex.Cr.R. 466, 243 S.W.2d 704 (1951). In the case now before us we are construing a statute which has been enacted though not in the exact form in which it was introduced as a Bill.
      The rule in nearly all jurisdictions seems to be that the courts will take judicial notice of the legislative history of enacted statutes as shown in the Legislature’s journals and other official records prior to passage of the statute. 31 C.J.S. Evidence § 43, p. 997; Sutherland, “Statutory Construction”, Vol. 2, p. 285.
      However, we need not decide the question of judicial notice in regard to the contents of the challenged exhibit, for we have reached our conclusions and our decision in this case independently of said exhibit and without considering it.


author: PER CURIAM.

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. Robert N. MILLER et ux., Appellees.
    No. 16666.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1966.
    Rehearing Denied March 25, 1966.

      Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson and Jack Pew, Jr., Dallas, for appellant.
    Goldberg, Akin, Gump, Strauss & Hauer, Dallas, for appellees.
   PER CURIAM.

The appellees Robert N. Miller and wife sued appellant, a brokerage company, for damages for alleged breach of contract and recovered judgment for $22,200. The facts of the case appear without substantial dispute.

Miller had been a customer of appellant for some time, having purchased through it several corporate shares and commodities “on margin.” These were held by appellant, which had advanced a substantial portion of the purchase price thereof, as collateral security. These securities are spoken of in the record as Miller’s, “long position,” and the excess of the value thereof over the advances so made by appellant is called in the record Miller’s “equity.”

In the latter part of 1963 Miller became of the opinion that the stock of a certain corporation called “Syntex,” which was then steadily rising in value on the market, would soon begin to decline in value to some amount substantially lower than its then market value. Having the courage of his convictions in this respect, he sold on the open market, through appellant, 300 shares of Syntex stock. He owned no such shares, so the transaction was what is called a “short sale,” which is thus explained: Miller contracted to sell and deliver the stock within four days. Appellant agreed to lend the stock to Miller for delivery; it was delivered within the four days, appellant crediting Miller with the proceeds of the sale and charging him on its books with the current market price of the stock so delivered, plus interest. Miller was required by law to deposit with appellant 70 per cent margin, meaning cash or acceptable securities of a value of at least 70 per cent of the sale price of the stock so sold. This 70 per cent margin deposit remained constant, i. e., Miller was not required to increase it if the stock increased in value, and he was not entitled to a refund of any part of it if the value of the stock declined. However, appellant required that Miller at all times maintain security, or “margin,” equal to 30 per cent of the value of the stock, and Miller agreed to maintain this margin for appellant’s protection, regardless of fluctuations of the market, until he should “cover” his short sales by purchasing the same number of shares of the stock he had sold “short.” Naturally, Miller hoped to be able to buy the stock at a substantially lower figure than that at which he had previously sold it, and pocket the net difference as profit.

Unfortunately for appellees, the market price of Syntex continued to rise until on January 15, 1964, it reached 184⅞, or $184,875 per share. They had sold it for an average of $111 per share. Appellant had the right to demand additional security or “margin” but only to the extent of bringing the margin up to 30 per cent of the then market price of the 300 shares of Syntex stock. On January 13 Syntex stock was selling for about 160. Miller was then in New Jersey on business and, being snowbound, could not return to Dallas. However, he was in telephonic communication with appellant’s “account executive,” Robert Woodin, who told him on January 13 of a margin call of approximately $20,000. Both Miller and Woodin felt that this was too high, and Woodin agreed to have the figures rechecked to make sure that Miller’s entire “long position” was properly credited. He told Miller on January 14 that the recheck revealed the same amount of credits and that, as the price of Syntex had advanced further, the margin call had now risen to $27,000. Miller replied that he could not meet such a margin call and to “go ahead and liquidate the Syntex,” meaning that Woodin should go into the market and purchase 300 shares of Syntex for delivery to the lender. This was done, resulting in the sale of Miller’s equities in his “long” stocks and the commodities.

These margin demands were much higher than authorized by the contract between the parties. A correct margin call on January 13 would have been $9,247, and on January 14 would have been $12,314, and on January 15, when appellant liquidated the account by purchasing the 300 shares of Syntex for Miller, a correct call would have been $15,043. Miller testified that he had good reason to believe that the price of Syntex would begin to decline after January 15, 1964, that Woodin agreed with him, and that he had intended to “ride out the storm” by liquidating his other assets to protect his position on Syntex; that he was able and intended to meet the call of $20,000 on January 13, though he considered it erroneous, but the next day, when Woodin not only insisted the call had been for the correct amount but that overnight it had been increased to $27,000, he saw no way to protect his Syntex position and accordingly ordered its liquidation. There was never a time when he could not have met a correct margin call and prevented liquidation of his Syn-tex account or any part thereof. This testimony was not disputed.

Appellant admitted that its margin calls of $20,000 and $27,000 were incorrect and at the conclusion of the evidence, outside the presence of the jury, stipulated that it was “liable for the damages, if any, sustained by plaintiff, which were proximately caused by the liquidation of the Syntex stock on January IS, 1964.” The jury found, in response to Special Issue No. 1, that $22,200 would fairly and reasonably compensate Miller for his damages proximately caused by liquidation of his Syntex short sales account with appellant on January 15, 1964. Two other issues were submitted to the jury and these will be noticed later. Judgment was rendered for Miller for $22,200, and appellant presents eight points of error on appeal, the first seven of which will be considered as a group, as they are in appellant’s brief.

Points 1, 2 and 3 assail the judgment for lack of evidence to support the jury’s answer to Special Issue No. 1. By its Points 4, 5, 6 and 7 appellant asserts error in that under the undisputed evidence Miller could have avoided, or at least substantially mitigated, his loss or damages. This last contention is based upon an offer made by appellant on January 21, 1964 to “reinstate” Miller in his “short” position as to 150 shares of Syntex; i. e., for Miller to instruct appellant to sell 150 shares short at the then market price of about 160, Miller to maintain the 30 per cent margin thereon, but not deposit the 70 per cent margin required initially by law, and appellant to credit his account with the sum of money equal to the difference between the price at which the sale could be made on January 21 and the price of 184⅞ at which the 150 shares had been repurchased on January 15 (which difference was estimated then by appellant to be about $5,200, but which actually would have been about $3,750). Miller rejected this offer as being unfair, contending he should be reinstated as to the entire 300 shares. Appellant argues that its offer, if accepted, would have fully compensated Miller for all damages flowing from the incorrect margin calls, the reasoning being that at the time these calls were made the price of Syntex stock had so advanced that Miller had already sustained a heavy loss, and that appellant’s only responsibility was “to reinstate him in whatever amount of Syntex was greater than the amount he would have been required to repurchase to make his equity 30% of his debt.” Appellant says that Miller’s insistence upon being reinstated as to the entire 300 shares is unrealistic and ignores the depletion of his equity already caused by the large increase in the market price of Syntex, “just as if appellant had not been entitled to make any margin call at all.”

The court submitted appellant’s theory to the jury as follows:

“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that after discovering the error, if any, in his account Robert Miller failed to take such action to reduce or minimize his loss, if any, as an investor of ordinary prudence would have taken under the same or similar circumstances ?
“Answer: Yes.”

In answer to Special Issue No. 3 the jury found that Miller’s loss would have been reduced by $21,905 if such action had been taken. Appellant moved for judgment non obstante veredicto and, alternatively, that appellees recover only $295 (the difference between the findings in response to Special Issues 1 and 3). The court overruled this motion and sustained appellees’ motion to disregard the answers to Special Issues 2 and 3 and for judgment for $22,200 on the answer to Special Issue No. 1.

In this we think the court was correct. There was clearly some evidence of probative value to support the finding of $22,200 damages, and we cannot say that it was insufficient to do so or that the finding was so against the weight and preponderance of the evidence as to be manifestly wrong or unjust. The jury had a right to believe and find, under the circumstances shown by this record, that appellant wrongfully forced Miller to purchase 300 shares of stock at a cost of approximately $55,500 to cover his previous short sales, which had yielded him only approximately $33,300, by demanding margin far in excess of that authorized by their contract.

Appellant argues that this is an unjust result because it assumes that, having met correct margin calls, Miller would have covered his short sales when the market price receded to exactly the price at which he had sold, and that all he was entitled to was to be placed, not in the position he occupied when he made the short sales, but in the position he occupied when the wrong was committed, which was to have only about 140 shares of Syntex short in his account. Appellant’s offer to place 150 shares short in the account, if accepted, would have restored him to the status quo, with no loss — would have made him whole. The jury having found in effect that an investor of ordinary prudence would have accepted this offer and by doing so would have reduced the loss to $295, no case was made for appellees for any amount in excess of $295.

While the argument on its face does not appear wholly illogical, it fails to convince us that reversible error occurred. We recognize the general rule that one injured by the wrongdoing or negligence of another owes a duty to exercise ordinary care to avoid or mitigate his damages. Cooper v. City of Dallas, 83 Tex. 239, 18 S.W. 565; Bryant v. Pennington, Tex.Civ.App., 346 S.W.2d 367, no wr. hist.; Western Union Telegraph Co. v. Sweeney, Tex.Civ.App., 106 S.W.2d 663, 669, certified questions answered, 129 Tex. 595, 106 S.W.2d 670. However, under the peculiar facts disclosed by this record, we are of the opinion that there was no duty on Miller’s part to accept appellant’s offer and that it cannot be said that his failure to do so proximately caused his loss. That loss had already occurred. Appellant’s offer to reinstate 150 shares of Syntex short in his account, it so happened, would have enabled Miller, had he accepted the offer, to recoup a large part of the loss already sustained. But this was because the market price of Syntex happened to continue to decline. Appellant could not and did not attempt to assure Miller that it would do so. It was an offer of an investment of the most speculative type. The price of Syntex might just as easily have taken a sudden upturn immediately after acceptance of the offer and continued upward until Miller could no longer have protected his position. Miller had only a very short time in which to make a decision, and a determination of whether a reasonably prudent investor would have accepted the offer must be made in the light of the situation as it existed and was known to Miller at that time, not weeks later when it was known that the market price had continued to decline and that it would have been wise to accept.

It is our view that if Miller had seen fit to take this additional risk, he should be the one to benefit from the successful venture, not appellant. Appellant’s view is that the success which would have rewarded the risk thus taken by Miller should redound to its benefit by wiping out, in part at least, its liability for its own wrongdoing. We do not agree with appellant.

There does not seem to be any reported case passing upon this precise question. Appellant relies heavily on Western Union Telegraph Co. v. Sweeney, Tex.Civ.App., 106 S.W.2d 663, certified questions answered 129 Tex. 595, 106 S.W.2d 670. Sweeney had bought 100 shares of General Motors Corporation stock through brokers in another city on margin at $18.50 per share. The market declined and the brokers wired him for $300 additional margin. There was a delay of several hours in delivery of this telegram. Sweeney promptly replied by wire that he was mailing the check and instructing the brokers to sell his contract when it reached $19 per share. When Sweeney’s telegram was received the brokers had already sold the stock at $15 per share, but they pointed out to him that the market had receded to $14.75 per share and that he could thus reinstate his contract at that price. He declined to do so because he “didn’t want to take another chance,” although admitting at the trial that he could have bought the stock back the next morning and saved a little money. He waited until the stock went back up to $19 per share and then sued Western Union Telegraph Company for his damages consisting of the initial payment, commissions, etc. The Commission of Appeals, in an opinion adopted by the Supreme Court, answered “No” to the following certified question: “Under the undisputed facts, did Sweeney suffer any damages which were proximately caused by the negligence of the telegraph company?” ft was held that his loss resulted from his own failure to repurchase 100 shares of General Motors stock when he could do so at a price even less than that at which his brokers had sold out his contract.

That case is quite dissimilar to the one before us. Sweeney had bought his stock on margin, but Miller had sold on margin. If Sweeney had desired to continue his speculative venture, he could have bought back into the market at slightly less than the price at which he had been closed out and he still had the $300 with which to meet margin requirements. He could have put himself in exactly the same position he occupied at the time of Western Union’s negligence. Not so with Miller; appellant’s offer would not have permitted him to continue his speculation with respect to 300 shares of Syntex, but only 150. Moreover, it was shown, even stipulated, that Sweeney was financially able to reenter the market after liquidation of his account and repurchase the General Motors stock, but it was not shown or stipulated that Miller had the financial capacity to protect his position after his account was liquidated. Therefore, we do not consider Sweeney as cpn-trolling.

We think the earlier and much more frequently cited case of Western Union Telegraph Co. v. Sheffield, 71 Tex. 570, 10 S. W. 752, is of closer application. There the Telegraph Company was sued for damages for failing to make prompt delivery of a message, which Sheffield claimed prevented him from protecting a certain mercantile claim. It contended that Sheffield could not recover because he had failed to avoid or mitigate his damages by buying up prior liens on certain property, and on this point the court said:

“It is elementary that a party claiming damages must not be in fault in contributing to them by his own want of proper care; and such care must extend to the protection from further loss after the act complained of. But this rule must be rationally applied. It is not required that everything possible must be done to prevent or limit the extent of the loss. It is not shown that the plaintiffs had the means, or could have commanded them, to advance the prior claims; nor is it shown to have been the reasonable duty of the plaintiffs, from the condition of their business, to have done so, if they had had the means. * * * A party is not required to invest further, in order to secure himself against the consequences of a breach of a contract by which he suffers injuries.” (Italics ours.)

On the strength of the Sheffield case we hold that Miller was under no legal duty to accept appellant’s offer, under the circumstances shown by this record. If Miller was under no such duty, as we have held, then it must follow that the inquiries contained in Special Issues Nos. 2 and 3 were immaterial. Being immaterial, they were properly disregarded by the trial court. Appellant’s first seven points are overruled.

By its eighth point of error appellant complains of the overruling of its objection to Special Issue No. 1 and its requested explanatory instruction. We have carefully inquired into the matter and, finding no prejudicial error revealed in connection therewith, we overrule this point also. Rule 434, Texas Rules of Civil Procedure.

The judgment appealed from is

Affirmed.

       Miller also had a smaller account with Harris, ITpham & Company, another brokerage company, and had sold short 100 shares of Syntex through it at about the same time he made the short sales through appellant. Taking the position that both of his short accounts had to be liquidated at the same time as a result of appellant’s excessive margin calls, Miller sued appellant for the loss in both accounts. In answering Special Issue No. 1, however, the jury found no damages with respect to the Harris, Up- ■ ham account. As appellees make no point of this, the Harris, Upham account will not be noticed further.