author: STEAKLEY, Justice.

text:
    W. J. STEEGER et al., Petitioners, v. BEARD DRILLING, INC., Respondent.
    No. A-9409.
    Supreme Court of Texas.
    July 17, 1963.
    On Rehearing Oct. 2, 1963.
    Spafford, Ledbetter, Freedman, Hamlin & Gay, Dallas, for petitioners.
    Baker, Botts, Shepherd & Coates, Finis E. Cowan, Houston, with above firm, for respondent.
   STEAKLEY, Justice.

Petitioners, W. J. Steeger et ah, as Owner, entered into a written contract with respondent, Beard Drilling, Inc., as Contractor, for the drilling of a test well for oil and gas. In the course of the drilling operations petitioners instructed respondent to prepare the well as required for the running of an electrical log by Schlumberger, a third party whose specialized services were to be provided by petitioners under the contract. When the depth specified by petitioners was reached, mud was circulated for forty-five minutes, after which, and while in the process of “pulling out of the hole,” the well blew out and caught fire. This suit was thereafter filed by respondent against petitioners to recover the value of respondent’s equipment which was destroyed.

Petitioners filed a cross-action sounding in both tort and contract to recover from respondent the necessary and reasonable cost expended by petitioners in controlling the blowout. The trial court sustained petitioners’ motion for summary judgment as to the portion of respondent’s suit based on the contract. The case was tried to a jury which found that neither party was negligent. The jury also made findings of damages to petitioners caused by the blowout, upon the basis of which the trial court entered judgment for petitioners on their cross-action.

On appeal, the Court of Civil Appeals held that the trial court erred in granting petitioners’ motion for summary judgment, and in entering judgment for petitioners on their cross-action. Further, that the trial court should have rendered judgment in favor of respondent on petitioners’ cross-action since the jury found neither party guilty of negligence. However, the Court of Civil Appeals did not render judgment for respondent for the stated reason that there was no basis in respondent’s pleadings therefor since the trial court had ordered the elimination of respondent’s pleadings on the contract. So the Court of Civil Appeals reversed the judgment of the trial court and generally remanded the cause for further proceedings in accordance with the opinion of the Court. Beard Drilling, Inc. v. Steeger et al., 361 S.W.2d 888.

Petitioners filed application for writ of error asserting error by the Court of Civil Appeals only in its construction of the contract, and in upholding respondent’s right of action under the contract.

The question before us is whether under the written contract of the parties, petitioners assumed the risk of, and agreed to indemnify respondent against, a loss of respondent’s drilling equipment occurring during operations which were preliminary to, preparatory for, and before the actual running of, an electric log. We hold that petitioners did not.

In answering the question in the affirmative, it was the view of the Court of Civil Appeals that the terms “electrical logs” and “electric logging,” as used in the contract, included not only the actual running of the • electrical logs, but, in addition, the work of circulating mud and removing the drill stem preliminary thereto; and that petitioners had agreed to indemnify respondent against the loss which occurred during these preparatory operations.

The testimony of Joe Beard, president of the respondent corporation, as quoted in the opinion of the Court of Civil Appeals, was that the term “electric logging” was generally used to describe that procedure “whereby a company like Schlumberger comes out to a well, lowers certain instruments into the well, shoots electric currents through there for the purpose of conducting certain tests.”

The contract between the parties is quoted in full in the opinion of the Court of Civil Appeals (361 S.W.2d 889-892), to which we refer. We will quote only the provisions of the contract which are deemed controlling.

It is our view that the answer to the problem rests in the delineation of obligations expressed by the parties in paragraph 2 of the contract which speaks in detail of the services, materials and equipment to be furnished by petitioners as Owner, and by respondent as Contractor. With respect to petitioners, paragraph 2a provides :

“2. EQUIPMENT AND LABOR.
“a. FURNISHED BY OWNER. Owner, at his expense, shall furnish the services and materials required of him in said specifications, and in addition, all casing (both surface and production), tubing, wellhead connections, separators, flow lines, and other completion equipment installed in or upon said well and location, and all required services and equipment of third persons for drill stem tests, side wall cores, coring perforations, electrical logs, cementing (including surface and production casing and squeeze jobs), and all cement so required.”

■ With respect to respondent, paragraph 2b provides:

“2.
“b. FURNISHED BY CONTRACTOR: Contractor, at his expense shall furnish what is required of him in said specifications, and also an adequate rotary drilling rig, including blowout preventer, and all other machinery, tools, equipment, materials, services, and labor necessary or proper in the performance of said work, except those to be supplied by owner as set forth above or im, said specifications

A reasonable construction of the emphasized language in paragraphs 2a and b, above, is that petitioners obligated themselves to furnish the required services and equipment of the third person engaged for electric logs; and that the respondent obligated itself to furnish all other services and labor with respect to the electric logs which would include the process of circulating the mud and removing the drill stem. It is undisputed that preparatory services necessarily precedent to the actual electric logging operation were not a part of the services and labor to be performed by the third person engaged by petitioners to run the electric logs; also, that the labor and services of the third person were not to commence until the well was in a position for the running of the electric log.

In relation to the foregoing, petitioners assumed risk and expense obligations in paragraph E of the specifications as follows:

“E. RISK: The operations enumerated in subdivisions (1) to (9) inclusive of paragraph ‘D-2-b’ immediately above, shall be conducted at owners risk and expense, provided however, that owner shall never be liable for contractor’s negligence or want of skill or diligence, or for failure of contractor’s equipment.”

The operation pertinent here is enumerated in subdivision (4) of paragraph “D-2-b” as “Electric logging.”

In brief, then, petitioners as Owner agreed to furnish at their expense and risk the services and equipment of the third person performing the operation of electric logging, and to indemnify respondent for any loss suffered by respondent during the performance by the third person of the electric logging operation. The parties by their contract measured the risk and expense obligation of petitioners regarding electrical logs by the labor and services of the third person engaged by petitioners to perform the operation; or, as may be otherwise expressed, the parties agreed that petitioners would indemnify respondent for any loss suffered by respondent from anything occurring during the time the equipment and personnel of the third party was running the electric log, and hence during the time the third person would be in control at the well site. The logic of the contract in this respect is self-evident. Respondent stepped aside, and relinquished control of the well, when the third person engaged by petitioners took charge. During the time the third person engaged by petitioners was in control, respondent was protected by the assumption of risk by petitioners. Thus, the crucial point at which petitioners’ indemnity obligation arose was when the third person assumed control of the well for execution of the electric logging operation. The risk and expense obligation of petitioners, defined in paragraph E, coincided precisely with that which they had agreed to furnish and pay for, and for which they had agreed to be responsible.

There is further consistency in paragraph 5 of the contract wherein it was agreed that “except as otherwise provided in said specifications, all work hereunder shall be conducted at Contractors sole risk.” As before noted, the electric logging exception with which we are here concerned was one of a number of exceptions enumerated in the specifications as being at the “Owner’s risk and expense.”

It was also agreed in paragraph 4 of the contract as follows:

“4. OWNER’S PREROGATIVES, ACCESS, AND NOTICE. The size and amount of casing (both surface and production) to be set, and the time, place, manner and extend of all cementing, coring, testing, electric logging, perforating, squeezing, and completing said well shall be determined by owner and conducted accordingly. Owner and his nominees shall have access to the derrick floor and premises at all times, shall be furnished complete samples and full information at the times and places directed by him, and shall be notified and afforded reasonable opportunity to be present and to observe all coring and testing.”

These provisions are consistent with other parts of the contract. Petitioners having assumed the obligations of electric logging at their risk and expense, it was provided that they were to have access to the information developed by the drilling operations, together with the right to determine the enumerated matters, with respect to electric logging. Paragraph 4 gave petitioners the right to determine when drilling would be stopped for an electric log, hence when the mud would be circulated and when the drill stem would be removed; there is no provision giving petitioners the right to determine who would do these things or how they would be done. The latter were the responsibility and prerogative of respondent under the delineation of obligations in paragraphs 2 and 5 of the contract.

It appears that the major consideration in the construction of the contract by the Court of Civil Appeals was the conclusion that the parties intended that respondent and its employees would be subject to petitioners’ direction and control during the preliminary process of circulating the mud and removing the drill stem. The Court further appeared to be influenced principally by the provisions of paragraph 4 of the contract, quoted above. In our view the beginning and major emphasis in construing the contract, and in reaching the intent of the parties, should be upon paragraph 2 in which there was expressed the division of obligations and the objective intent that respondent would furnish all services except those expressly assumed by petitioners. It cannot reasonably be said that the parties contemplated that petitioners would furnish the labor and services involved in circulating the mud and withdrawing the drill stem in preparation for the actual logging operation. Respondent and its employees did not step aside at this stage as they would have done when Schlumberger took charge with its specialized equipment and personnel. We do not regard paragraph 4, when considered in the light of the other provisions of the contract, to be subject to the construction that the parties intended that control of the employees of respondent would pass to petitioners, and that respondent would step aside, upon the exercise by petitioners of their contractual rights to determine the “time, place, manner and extent” of “electric logging.”

In our view, there is no ambiguity-in the contract when considered in all of its provisions and resort to aids in construction is therefore unnecessary, and, indeed, not permissible. Wood Motor Co. v. Nebel, 150 Tex. 86, 238 S.W.2d 181. It is the duty of the Court to construe the contract as an entire instrument, and to consider each part with every other part so that the effect and meaning of one part on any other part may he determined. This process makes clear the intent of the parties and the extent to which they intended to be hound. Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003. See also Spence & Howe Construction Co. v. Gulf Oil Corp., Tex., 365 S.W.2d 631, and Ohio Oil Co. v. Smith, Tex., 365 S.W.2d 621.

We sever into one cause respondent’s suit against petitioners to recover the value of its destroyed equipment, as to which we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court granting petitioners’ motion for summary judgment.

We sever into another cause petitioners’ suit in the form of a cross-action against respondent. As to this cause, and without expressing an opinion thereon, we affirm the judgment of the Court of Civil Appeals remanding the case to the trial court for a new trial. Affirmance of the judgment of the Court of Civil Appeals to this extent is required since no error is here asserted by petitioners against the judgment reversing and remanding the judgment of the trial court for petitioners on their cross-action.

ON MOTIONS FOR REHEARING

In our original opinion we sustained petitioners’ points of error and severed into one cause respondent’s suit against petitioners based on the written contract; as to this cause we reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court granting petitioners’ motion for summary judgment. We severed into another cause petitioners’ suit against respondent by way of a cross-action, and for the reasons stated affirmed the judgment of the Court of Civil Appeals remanding the cause to the trial court for a new trial.

On rehearing, petitioners have moved this Court to enter an order dismissing with prejudice their cross-action against respondent, and that the judgment of the trial court denying respondent any recovery on its suit against petitioners be affirmed. Respondent has filed an instrument stating that it does not oppose the motion to dismiss, but in its motion for rehearing insists that under the general remand of the case by the Court of Civil Appeals, it is entitled to another trial of its suit against petitioners based on negligence.

In its original suit against petitioners, respondent plead a cause of action based on allegations of negligence, together with the cause of action based on the contract. The latter was the subject of this appeal, with respect to which we held adversely to respondent in our original opinion. This was the severed cause in which we reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the trial court. We did not include respondent’s suit against petitioners based on allegations of negligence in the severed cause remanded to the trial court for a new trial. This was because of the fact, as recited in the opinion of the Court of Civil Appeals, and in our original opinion, that the case involving negligence was tried to a jury which found that petitioners were not guilty of acts of negligence proximately causing damage to respondent. It further appeared to us that respondent in its briefs recognized that its suit for negligence (as well as petitioners’ defense to respondent’s suit asserting negligence on the part of respondent) had been finally determined. In speaking of petitioners’ defense of negligence against respondent’s suit, respondent in its application for writ of error asserted that petitioners were not entitled to a second trial of their negligence defense because “the jury found against them. Where is the justice of allowing them to do the same thing a second time ?” Also, respondent in its post-submission brief recited that "the negligence issues were fully tried to the jury which found that neither party was negligent. * * * The fact findings of the jury and Court of Civil Appeals are final here, since there are no ‘no evidence’ points before this Court.”

However, as previously mentioned, respondent in its motion for rehearing insists that it is entitled to another trial of its suit against petitioners based on negligence under the general remand of the case by the Court of Civil Appeals; and, alternatively, that we erred in not remanding the case to the Court of Civil Appeals for its determination of respondent’s points of error as appellant before that Court involving its action for negligence, and which were not considered and decided by the Court of Civil Appeals.

Respondent as appellant before the Court of Civil Appeals urged thirteen points of error. Its first three points presented questions concerning the written contract between the parties which was the subject of our original opinion. Its fourth, fifth, sixth, seventh, ninth, tenth and eleventh points presented errors pertaining to the judgment of the trial court in favor of petitioners on their cross-action which petitioners have moved to dismiss. The twelfth and thirteenth points asserted error by the trial court in denying respondent’s motion for summary judgment “in its favor on the verdict of the jury and the undisputed evidence”; and in sustaining the motion of petitioners that respondent take nothing and that petitioners recover on their cross-action. The argument under these two points was limited entirely to the contract action; no error was asserted with respect to respondent’s unsuccessful suit based on negligence.

Respondent’s eighth point of error in the Court of Civil Appeals was as follows : “The trial court erred in overruling the plaintiff’s motion for mistrial based on the ground of prejudice, caused by defendants eliciting before the jury evidence that plaintiff recovered on its insurance for the damage to its drilling rig.” The Court of Civil Appeals did not consider this point since the whole basis of the reversal and remand of the case by the Court of Civil Appeals was its disagreement with the trial court in the construction of the contract pertaining to respondent’s suit in contract.

Respondent’s suit was to recover the value of its drilling rig which was destroyed by the fire resulting from the well blowout. The value of the rig was the subject of dispute between the parties. The witness O. F. Abbott was offered by respondent for the purpose of establishing the value of the rig. He testified that its market value was $120,000.00. The witness was required to produce his records pertaining to the equipment for purposes of cross-examination. Among the figures contained in the records was that of $77,410.71. The following cross-examination ensued, the questions being asked by counsel for petitioners and the answers being those of the witness Abbott:

“Q. Sir, have you brought with you the records we talked about yesterday?
“A. Yes, sir, I have. It looks more like a work file, but it is primarily copies of records. It is available for any scrutiny. I would be glad to explain any part of it.
“Q. All right. May I take a look at them for a second ?
“A. Yes, sir. It is in date order, that is the oldest record is in the back.
“Q. Starting right in here shortly after this blowout occurred, Mr. Abbott, I note here in your records a notation of certain figures and a total figure. What is that, sir?
“A. That particular page is Joe Beard’s handwriting and it is an estimate on what it would cost to re-do or put that rig back in working order. That is certain items are new and some are to be repaired. Those are the main things that he needed completely.
“Q. In determining what the damage to the equipment is worth isn’t it very material to make an estimate of what it would cost to repair it?
“A. I think Joe had made some inquiry to certain manufacturers toward what the material would cost to repair it.
■“Q. Sir, I don’t suppose my question was clear, but if you have got some damaged equipment sitting here at a particular point, and you are trying to figure out what the damaged equipment is worth, isn’t it important to find out what the damaged equipment is worth to find out about how much it would take to repair it and get it back in good condition ?
■“A. I can’t give you a direct answer except this, if there was a swivel manufactured by Brewster Company and they would take it back in their plant and repair it and guarantee it as good as new for X dollars it would be to me as vendor, as seller, no question what the swivel was worth. It is .as good as new after they repair it.
“Q. Isn’t it true that what Mr. Beard thought that it would take to repair this rig and put it back in good condition, according to this notation we are talking about, is $77,410.00?
“A. Well, that was the amount of the insurance check we received. Here was one estimate here, the next day after more figures was run checking with manufacturers of what was available. This is my handwriting, it jumps up to $72,000.00. That doesn’t take into consideration a lot of labor, welding and many unforseen things that cannot be entirely estimated at the time to put a rig together.”

The foregoing reveals that the witness Abbott volunteered the information about insurance in an answer which was not responsive to the question propounded. The matter to which the questions were directed were proper subjects for cross-examination. There is no evidence that the particular notation in the file produced by the witness Abbott for use by counsel for petitioners in cross-examination was identified •in the file as the amount of insurance paid respondent for the loss of the rig. We find no error in the action of the trial court in overruling respondent’s motion for mistrial filed after the evidence was closed, and based on the foregoing. Cf. Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759, 761; Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938, 940.

Respondent’s motion for rehearing is overruled. On the Court’s own motion the judgment rendered and entered herein on July 17, 1963, is set aside, and judgment is now rendered as follows:

The judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause for retrial -is reversed. Insofar as the trial court’s judgment denies respondent a recovery against petitioners, it is affirmed. Insofar as the trial court’s judgment awards petitioners a recovery of $43,230.88 against respondent on their cross-action, it is reversed and the cross-action is dismissed with prejudice.

All costs are apportioned two-thirds to be paid by respondent and one-third by petitioners.

       All emphasis added.

      . The Court of Civil Appeals considered and overruled respondent’s sixth, seventh and ninth points of error. It seems clear that the Court regarded these points as presenting error with respect to pe-titioners’ recovery against respondent on the cross-action. We concur in this construction of the points and the argument thereunder, and in their disposition.


source: Caselaw Access Project

license: Public Domain

text:
    John KIMBROUGH et al., Petitioners, v. J. E. WALLING et al., Respondents.
    No. A-9578.
    Supreme Court of Texas.
    Oct. 23, 1963.
    Key, Carr & Clark and Aubrey J. Fouts, Lubbock, for petitioners.
    Powell, Rauhut, McGinnis, Reavley & Lochridge and James W. Wilson, Austin, for respondents.
   STEAKLEY, Justice.

John Kimbrough et al., petitioners, filed this suit to enjoin the Mayor, the Aldermen and the Treasurer of the City of Haskell, respondents, from expending City funds for attorneys’ fees and expenses in the prosecution of an appeal suit from an order of the State Board of Water Engineers issuing an appropriation permit to the North Central Texas Municipal Water Authority. Petitioners were granted a permanent injunction by the trial court. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the respondents. Walling et al. v. Kimbrough et al., Tex.Civ.App., 365 S.W.2d 941. We affirm the judgment of the Court of Civil Appeals.

The City of Haskell is a statutory municipality. As such it is expressly empowered “To provide, or cause to be provided, the city with water”; Article 1015, Subdivision 30, and related Article 1109, Vernon’s Annotated Civil Statutes. The exercise of an express power granted to a city is within its discretion and partakes of a legislative nature. The courts will not regulate the exercise of such a power unless it is exercised in a manner clearly abusive thereof. Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033. The law presumes that officers of municipal corporations act within the limits of their authority; that they act in good faith; and that they act in the best interests of the municipality they represent. Sayles v. City of Abilene, Tex.Civ.App., 290 S.W. 239; affirmed (Tex.Com.App.), 295 S.W. 578.

The North Central Texas Municipal Water Authority was created in 1957 by the Acts of the 55th Legislature; Article 8280-193, V.A.C.S. The Act provides that the Authority shall contain all of the territory contained in the boundaries of the cities of Seymour in Baylor County, Knox City, Munday and Goree in Knox County, Haskell, Rule and Rochester in Haskell County. Other territory within the counties may be annexed by a petition and election procedure. The Authority is empowered by Section 7 of the Act to obtain through appropriate hearings an appropriation permit from the Board of Water Engineers; presumably, the permit in question in this case was issued pursuant thereto. The Authority is authorized to construct a dam and all necessary facilities within the Counties of Baylor, Haskell, Knox and Throck-morton. It is authorized to acquire land, property and easements in the four counties. It is authorized to issue its negotiable bonds to be payable from its revenues and from taxes. It is authorized to enter into contracts with cities for supplying water to them and to contract for the rental or lease of existing facilities. The Authority cannot exercise any of the powers conferred by the Act unless and until its establishment is confirmed at an election and can contain only those cities in which there has been a majority vote favoring the confirmation. The status of the City of Haskell in this respect is not shown by the record in this case.

Petitioners urge their right to injunction upon the proposition that the City of Haskell is without authority as a matter of law to expend City funds in prosecution of the appeal suit. The factual support for the relief sought by petitioners consisted of proof of past and proposed future expenditures by the City of Haskell for such purpose. No attack is made upon the reasonableness of the expenditures themselves. Respondents in their answer admitted “that pursuant to their duties and responsibilities to provide a suitable municipal water supply for the City of Haskell and to safeguard the revenues of the City, the defendants have opposed and will continue to oppose the North Central Texas Municipal Water Authority in its efforts to construct the Millers Creek Dam and Reservoir as a source of municipal water supply for the City of Haskell * * * [and] have employed legal counsel to assist them in this effort and that they will continue to do so.”

There is no evidence in the record con■cerning the terms of the permit issued by the Board, or of the location of what is referred to as the Millers Creek Dam and Reservoir, or of the effect, if any, of the proposed project upon the water supply of the City of Haskell. There are references in the briefs of the parties to, and extensive arguments based upon, a purported water supply contract between the Authority and the City of Haskell executed by a previous ■City Council. The record, however, is silent concerning this contract; neither the contract itself nor the facts and circumstances ■of its execution are in evidence.

Petitioners’ contention that participation by the City in the appeal suit is beyond the ■ express and implied powers of the City under Article 1015, Subdivision 30, and Article 1109, V.A.C.S., is bottomed on the assertions in their brief that the appeal suit from the order of the Board of Water Engineers has no “relation whatsoever to the power and the duty of the City to furnish a municipal water system, since the ■existence or nonexistence of the Water Authority and the dam which it proposes to construct would be entirely immaterial to the City and would not in any way interfere with the City’s operation of its own •municipal water system”; and that the Authority “does not propose to interfere in any way with the right of the City to maintain its own water system.” There is, however, no factual support in the record for these assertions and we cannot assume that under no possible circumstances would the project authorized by the Board of Water Engineers have any effect upon, or interfere with, the maintenance by the City -of its municipal water system. It is apparent that the sustainment of petitioners’ right to injunctive relief under the record •in this case would require a holding that under no conceivable state of facts would the City of Haskell be authorized to prose•cute an appeal suit from the order of the State Board of Water Engineers issuing an appropriation permit to the Authority, •and to expend its funds in payment of reasonable attorneys’ fees and expenses incident thereto.

We agree with the Court of Civil Appeals in its holding that the manner in which the City of Haskell exercises the express power to provide a suitable water supply rests largely in the discretion of its governing body, and that the City possesses the implied power to oppose the implementation of a project which its governing body, in the exercise of reasonable discretion, considers to be detrimental to the present or future water supply which the City is required by statute to provide for its inhabitants. This is conclusive against petitioners in the absence of any factual showing that the decision to prosecute the appeal suit bears no reasonable relation to this statutory power and duty, or that respondents did not act in good faith and in the best interests of the City.

By further point of error petitioners contend that the Court of Civil Appeals erred in not remanding the case to the trial court for hearing on their application for permanent injuction, and that the justice of the case demands that they be given an opportunity to develop the facts before a final decision is reached. The contention that the Court of Civil Appeals erred in not remanding the case was not made in any assignment of error in the motion for rehearing in that court, as required by Rule 469(c), Texas Rules of Civil Procedure. We are therefore precluded from considering this point. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (on rehearing); East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613.

Petitioners seek to avoid application of the rule upon the proposition that the error which petitioners contend was committed by the Court of Civil Appeals— that of rendering judgment for respondents on the suit for permanent injunction, notwithstanding the holding of the Court of Civil Appeals that the trial court erred in granting a permanent injunction because the hearing before the trial court was for temporary injunction — was a fundamental error which this Court can consider regardless of its nonassignment. The jurisdiction of the trial court was invoked to issue both a temporary and a permanent injunction, and its judgment was for a permanent injunction. Petitioners accepted this judgment and urged its correctness in the Court of Civil Appeals. The problem is not one of lack of jurisdiction in the trial court, or of fundamental error.

The judgment of the Court of Civil Appeals is affirmed.


author: GREENHILL, Justice. WALKER, Justice.

text:
    Mrs. Lorraine BROWN et al., Petitioners, v. Norman A. LEE, Individually and as Independent Executor of the Estate of Mrs. Norman A. (Marie) Lee, Deceased, et al., Respondents.
    No. A-9402.
    Supreme Court of Texas.
    Oct. 2, 1963.
    Rehearing Denied Nov. 13, 1963.

      Fanning, Billings, Harper, Pierce & Gil-ley, Turner, Rodgers, Winn, Scurlock & Terry, John H. McElhaney, Dallas, for petitioners. •
    Knox W. Sherrill, John W. Collins, Jr., O. O. Touchstone and John B. Webster, Dallas, for respondents.
   GREENHILL, Justice.

The controversy of this suit is over title to proceeds of several insurance policies, purchased with community funds, where both the insured-husband and the beneficiary-wife died in a common disaster. There was no evidence that the spouses died otherwise than simultaneously in the crash of their private airplane. Both died intestate and without children. The heirs of the husband are Petitioners in this Court, and the heirs of the wife are Respondents. Respondents also filed an application for writ of error.

Of the four policies insuring the husband’s life and payable to the wife, two yielded proceeds totaling $50,820. Liability on the remaining two policies for $10,000 and $1,000, respectively, was denied by the insurance companies. The common administrator for the estates inventoried not only the cash received but also the rights to any future proceeds under the contested policies which the administrator valued at $1.00 each. The administrator then divided these assets equally between the two estates. However, the probate court ordered all present and future proceeds to be inventoried as assets of the husband’s estate. On appeal by the wife’s heirs, the district court, in a trial de novo, held that each estate was entitled to one-half of the total proceeds. The Court of Civil Appeals affirmed. Tex.Civ.App., 362 S.W.2d 381. This Court is in agreement with the order of the probate court.

In determining the rights of the opposing heirs, §§ 47(b) and 47(e) of the Texas Probate Code, V.A.T.S., relating to “Passage of Title Upon Simultaneous Death” must first be examined:

“§ 47(b). Disposal of Community Property. When a husband and wife have died, leaving community property, and there is no direct evidence that they have died otherwise than simultaneously, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived, except as provided in Subsection (e) of this Section.”
“§ 47(e). Insured and Beneficiary. When the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.”

The last phrase of § 47(b) clearly directs that § 47(e) shall be controlling where proceeds of insurance are involved. It is our opinion that the latter provision requires all of the proceeds to be distributed to the estate of the insured-husband. In the present case, there being no evidence of which spouse died first, it is statutorily presumed under § 47(e) that the insured-husband survived for purposes of distributing insurance proceeds. The enactment of this survivorship presumption in 1951 foreclosed the applicability of the equal distribution rule of Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, (1953), wherein there was neither evidence nor statutory presumption to establish survivorship.

The legal theory of title to insurance proceeds heretofore followed by this Court and most recently reviewed in the majority opinion of Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481 (1956) appears to have been altered by a recent legislative amendment. A 1957 amendment to article 23(1), Vernon’s Ann.Civ.Stats., enlarged the statutory definition of “property” so that it now includes “insurance policies and the effects thereof.” The legislature has thus aligned Texas with other community property states in adhering to the theory that the right to receive insurance proceeds payable at a future but uncertain date is “property.” Such property is said to be in the nature of a chose in action which matures at the death of the insured. The foregoing statement of the consequences flowing from the amendment is in agreement with Professor Huie’s analysis-in his article, Community Property and Life Insurance — Substantive Aspects — Developments in Texas, 2 Texas Institutes 104-(1957).

When purchased with community-funds, the ownership of the unmatured, chose logically belongs to the community, unless it has been irrevocably given away under the terms of the policy, i. e., where the purchaser has, without fraud, foreclosed any right to change the named beneficiary as in Evans v. Opperman, 76 Tex. 293, 13 S.W. 312 (1890). The proceeds at maturity are likewise community in character, except where the named beneficiary is in fact surviving, in which case a gift of the policy rights to such beneficiary is. presumed to have been intended and completed by the death of the insured.

Under circumstances where the uninsured spouse predeceases the insured spouse,, settlement of the decedent’s community interest in the unmatured chose has ordinarily been resolved by allocating one-half of the cash surrender value to the deceased’s estate and the other one-half, plus ownership of the unmatured chose, to the surviving spouse. Thompson v. Calvert, 301 S.W.2d 496 (Tex.Civ.App.1957, no writ). But in the present case, where settlement of the deceased wife’s community interest in the policies was not made prior to the death of the insured and her heirs were not guilty of laches in failing to seek such compensation, the wife’s community interest was never extinguished and the policies retained their community status up to the time of maturity. Consequently, the proceeds are community.

Since the proceeds were community and the husband was the wife’s survivor for insurance purposes under § 47(e), the wife’s one-half of the proceeds passed to the husband’s estate under the statutes of descent and distribution. Section 45 of the Probate ■Code contains the applicable rule of intestacy :

“§ 45. Community Estate. Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants; * *

Our conclusions in the present case are ■in accord with those of our sister community property states. In re Saunder’s Estates, 51 Wash.2d 274, 317 P.2d 528 (1957) and In re Wedemeyer’s Estate, 109 Cal.App.2d 67, 240 P.2d 8 (1952), the Supreme Courts of Washington and California held that proceeds from policies maturing on the simultaneous death of the insured-'husband and the beneficiary-wife were community property because they reflected a community chose in action. But in each case, since the wife died intestate and childless, and her husband was presumed to be 'her survivor under the insurance provision •of the simultaneous death act, the wife’s ■one-half of the proceeds passed from her estate to her husband’s under ordinary rules of inheritance. As in the Saunder’s case, the entire proceeds here in issue became the separate property of the husband’s estate via (1) his intestate succession to his wife’s one-half interest, and (2) his ownership of the other one-half as a member of the community.

The National Conference on Uniform State Laws has also focused upon the exact issue before us now in an amendment to the Uniform Simultaneous Death Act in 1953. Apparently realizing that their original draft of the insurance provision compelled the result reached here, the Commissioners adopted the following italicized amendment:

§ 5. Insurance Policies. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary, except if the policy is community property of the insured, and his spouse, and there is no alternative beneficiary, or no alternative beneficiary except the estate or personal representatives of the insured, the proceeds shall be distributed as community property under Section 4.

As indicated by the Commissioners’ comments in the 1953 Handbook of Proceedings, p. 251, this amendment was precipitated by the California Wedemeyer opinion, the reasoning of which we have here followed (though reaching a different result because our jurisdiction does not have the special tracing statute). Our 1955 Probate Code did not include the Commissioners’ suggested amendment, nor did it introduce the California tracing principle which might also have produced an equal division of the proceeds. The conclusion is evident that the existing Texas statutes have not provided for equal distribution of proceeds under the present facts.

It is argued by Respondent that in the event § 47(e) does require a distribution of the proceeds to the husband’s estate, the statute must be condemned as an unconstitutional legislative attempt to change community property into separate property in violation of Article 16, Section 15 of the Texas Constitution, Vernon’s Ann.St. We do not agree. This is not a situation parallel to Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), in which the legislature declared that the status of revenues of the wife’s separate real property was to be changed from community property to her separate property. On the contrary, the insurance proceeds here in question are recognized to be community property, and the transplantation of the wife’s one-half into the husband’s separate estate is a result of the normal application of the statutes of descent and distribution. Moreover, if the wife had written a will, her one-half of the proceeds would have passed to her devisees instead of her statutory heir (her husband); so it cannot be said that § 47(e) has the purpose of arbitrarily favoring the husband’s separate estate.

Respondents further argue that fairness and equity should give the wife’s estate a right of “reimbursement” for one-half of the proceeds of the policies because premiums were paid for with community funds. Respondents do not seek to invoke the doctrine of equitable reimbursement to recover the community funds which were actually disbursed in payment of premiums, but rather to reach the proceeds in circumvention of the legislative directives in § 47(e). It might well be argued that the result here is inequitable and inconsistent with the probable intentions of the deceased spouses; nonetheless, the conscience of a court of equity cannot speak in the face of a clear legislative mandate to the contrary.

The remaining argument made by Respondents is that one of the policies in question does not come within the scope of § 47(e) which purports to cover “policy[ies] of life or accident insurance.” Respondents argue that since benefits under one of the policies were payable in the form of continuing, monthly sums, such policy was an “annuity contract” and not an insurance policy within the statute’s purview. We disagree. The policy was merely a particular type of life insurance coverage, often called an annuity, wherein the insurance benefits were payable in monthly installments for twenty years instead of one lump sum. Respondents further argue that since the above policy nowhere stated that the wife’s rights as beneficiary were dependent on her surviving her husband, the policy was an unconditional gift by the husband to his wife. This contention fails in view of the fact that the husband retained the right to change the beneficiary, and therefore the wife acquired no vested, separate ownership of the policy at the time it was purchased.

The judgments of the Court of Civil Appeals and the District Court are reversed, and the cause is remanded to the district court with instructions to enter judgment in accordance with this opinion and to certify judgment to the probate court for observance. Rule 311, Texas Rules of Civil Procedure.

WALKER, Justice.

I respectfully dissent. The court properly recognizes that the proceeds of the several insurance policies were community property. It reasons, however, that the same passed to the husband’s estate under the terms of Section 45 of the Probate Code, because the wife left no will, was survived by no child or other descendant, and is deemed to have died first by virtue of the provisions of Section 47(e). And yet the policy proceeds would be owned equally by the estates of the husband and wife if the estate of the former had been designated as primary beneficiary in the first instance. Even if some third person had been named as beneficiary, the community interest of the wife would not be affected by the simultaneous deaths of the husband and the beneficiary. Her heirs are thus deprived of any share of the insurance proceeds merely because the husband sought to provide for her security and protection by naming her as the beneficiary. Where the literal language of a statute leads to such absurdly inconsistent and unjust results, it seems to me that we should delve a bit more deeply for the legislative intent.

Section 47 of the Probate Code “operates on the principle that, where title to property or its devolution depends upon fixing the relative times of death and it is impossible to prove the order of death, the property of each decedent passes as if he or she were presumed to survive persons dying in the same disaster who would take only by reason of their survival. The result is that property rights of one who must survive the owner in order to realize such are cut off and the property passes through the deceased owner’s estate. Since each spouse is considered to be the owner of one half -of the community property, the community property section of the act extends the presumption of survival to both spouses, when order of death is uncertain, providing that one half of the community property passes as if each spouse had survived. The insurance provision * * * creates a conclusive presumption that the insured survived, thus defeating a beneficiary’s right to receive the proceeds of a policy where his right is dependent upon his surviving the insured.” 41 Tex.L.Rev. 832.

The paramount purpose of the Legislature was to make certain that property would pass and vest as if the owner thereof had survived. This is the effect of Section 47(e) in the ordinary case where the insured is the owner of the policy and the beneficiary has only a contract right to receive the proceeds in the event he survives. When a community insurance policy is taken out on the life of the husband, he has the power to designate the wife or some third party as primary or alternate bene-ficary. The contract will then be enforced in accordance with its terms unless the transaction is fraudulent as to the wife. If the wife is primary beneficiary and a third party has been designated as alternate beneficiary, the latter would, by virtue of the provisions of Section 47(e) and our decisions relating to third party beneficiary contracts and the powers of the husband as manager of the community estate, be entitled to the proceeds upon the simultaneous deaths of the husband and wife. It was this latter situation that led to the insertion of the exception at the conclusion of Section 47(b).

Under the court’s interpretation of Section 47, the two principles declared by the lawmakers, i. e., devolution of property as if the owner survived and distribution of insurance proceeds as if the designated beneficiary died first, are entirely consistent in most instances but utterly inconsistent when a community insurance policy on the life of the husband is payable to the wife and there is no alternative beneficiary other than the estate of the insured. From a consideration of the entire statute, it seems clear to me that the presumption of survival created by Section 47(e) governs only the right of a beneficiary to take in that capacity. This construction harmonizes all provisions of the law and carries out the legislative scheme for distribution of property in cases of simultaneous death. In my opinion devolution of the wife’s community interest in policies on the life of the husband is not affected by Section 47(e), and the same should be held to pass and vest in accordance with the provisions of Section 47(b). I would affirm the judgment of the Court of Civil Appeals.

      . The statute’s emergency clause expressly states the reason for its passage: “The fact that the case of Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481, de cided by the Supreme Court of the State of Texas, casts some doubt on the status of life insurance policies as property creates an emergency * *

      . In the lYedemeyer case, the California Court was compelled by special tracing statute to go one step further and award the wife’s one-half, which had been inherited by the husband by reason of his presumed survivorship under the uniform simultaneous death act, back to the wife’s heirs. Consequently, the Court reached a result opposite of ours in the present case.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    M. R. LONG, Appellant, v. The STATE of Texas, Appellee.
    No. 35906.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    Rehearing Denied Oct. 9, 1963.
    Second Motion for Rehearing Denied Nov. 13, 1963.

      Richard D. Bird, Childress, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

No statement of facts accompanies the record, and for this reason we are not in a position to review his bill of exception which complains of the failure of the court to grant his motion for continuance. Clark v. State, 164 Tex.Cr.R. 271, 298 S.W.2d 828, and 5 Tex.Jur.2d, Sec. 158, p. 249.

His second bill of exception complains of the failure of the court to quash the jury panel because the same were not selected in accordance with the terms of Article 2109, Vernon’s Ann.R.C.S. Section 2 of Article 2109 reads in part as follows i

“To select jurors.—Said commissioners shall select jurors for all the terms of the county court to be held within six. months after the adjournment of the-first week of said court after the dates, first named (last day of December anct the last day of June of each year).. * * * >>

This record does not reflect the date upon which the first week of the July, 1962, term: commenced, and therefore it is not shown that the term at which this case was tried began more than the six months referred torn said article.

Finding no reversible error, the judgment of the trial court is affirmed.

On Motion for Rehearing

WOODLEY, Presiding Judge.

The only instrument before us which purports to be a statement of facts is that copied in the transcript.

Art. 759a, Sec. 1, par. A, Vernon’s Ann., C.C.P., requires that the statement of facts be “sent up with the record.”

This Court is without authority to-consider the instrument copied in the transcript as the original statement of facts. Sherman v. State, 165 Tex.Cr.R. 42, 302 S.W.2d 662; Steinman v. State, 153 Tex.Cr.R. 198, 220 S.W.2d 887. See also cases: listed under Criminal Law 1104(3) in Texas Digest.

The rule appears to be that in the absence of a statement of facts a bill of exception complaining of the overruling of a motion for continuance because of the absence of a witness will not be considered. Jinks v. State, Tex.Cr., 349 S.W.2d 598; Hambright v. State, Tex.Cr., 318 S.W.2d 640; Clark v. State, 164 Tex.Cr.R. 271, 298 S.W.2d 828, and other cases listed under Criminal law 1097(3) Texas Digest.

Appellant’s motion for rehearing is overruled.


author: CHAPMAN, Justice.

text:
    J. B. MARION, d/b/a J. B. Marion & Company, Appellant, v. Aubrey Lee SHAVER et al., Appellees.
    No. 7283.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1963.
    Rehearing Denied Oct. 21,1963.
    Edward W. Napier, Lubbock, for appellant.
    Shaver, Hurley & Sowder, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal from a judgment based upon a jury verdict for Aubrey Lee Shaver and Richard G. Shaver against J. B. Marion d/b/a J. B. Marion & Company.

Appellant, during the period material to-this case, was a cotton broker engaged in-buying cotton from farmers and selling it to cotton mills, other cotton brokers and' generally into the world market. He entered into a written contract with appellees, to purchase all cotton grown on their 116-acres of cotton land in Swisher County for the year 1961 at the agreed price of 30.25 cents per pound according to the compress weights. The contract was prepared by appellant and obligated appellees to gin the cotton through Continental and Moss cleaners and deliver it as soon as possible after ginning. There was no date whatever stated in the contract as to when it was to be gathered or ginned, no requirement as to grade or staple, and the contract provided the cotton was to be machine harvested only.

The court asked the jury if plaintiffs “ * * * used ordinary care in the harvesting of the 113 bales of cotton.” They answered affirmatively.

Though appellant now complains by brief that the issue should have included an inquiry as to the time of harvest and contends time was of the essence in the contract, there was not a word in the contract he himself prepared obligating appellees to gather the cotton by any particular date.

The provision that appellees were to gather all the cotton by machine only would suggest a liberal construction as to the time of harvest because of the variables involved in gathering irrigated cotton by stripping. There is probative evidence showing that cotton in the same field, the same age, watered at the same time would vary considerably in the time it would mature because of the difference in the slope of the land, the difference in the type of the cotton and various other factors.

It is axiomatic that stripped cotton would not be ready for harvest until most of the late maturing bolls were ready, since a stripping machine does not have the ability to distinguish between mature and immature bolls, but takes everything. There is also testimony that it sometimes takes two or three weeks for cotton to be ready for stripping after a killing frost or freeze. The climatological chart and testimony in connection therewith introduced by appellant shows the low temperature for October, 1961, was 35. The probative evidence shows there was not a killing freeze or frost until the first week in November. The testimony shows appellees started harvesting on November 29. The record also shows appellant’s agent knew they were still watering as late as August 14.

Since the only time element provided in the contract was delivery as soon as possible after harvest and there were no specific objections to failure to ask that particular question, or requested issues separating that question from the time of harvest, there could be no reversible error in such failure. Additionally, there is no probative evidence that plaintiffs unreasonably delayed delivery of the cotton after harvest before it was rejected.

The contract between the parties being unambiguous, they were bound by its written terms. Universal C.I.T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154.

Finding no reversible error, the judgment of the trial court is in all things affirmed.


author: WILSON, Justice.

text:
    Eugene T. ETTER et al., Appellants, v. TEXACO, INC., et al., Appellees.
    No. 4153.
    Court of Civil Appeals of Texas. Waco.
    Oct. 3, 1963.
    Rehearing Denied Oct. 24,1963.

      Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, Haley, Koehne, Fulbright & Winniford, Waco, Wilson, Miller, Spivey & Steger, Thomas Y. Banks, Tyler, W. A. Keils, Jr., Teague, for appellants.
    Lawrence Jack Moore, Houston, Howell & Howell, Beaumont, Earl A. Brown, Dallas, B. R. Reeves, Palestine, for ap-pellees.
   WILSON, Justice.

The trial court concluded that the instrument quoted below was a conveyance to appellees’ predecessor in title of a perpetual undivided non-participating royalty interest entitling them to a royalty of ¼ of ⅛, or a ⅝2 interest in production under a subsequent lease held by Texaco and all future leases. We reverse this portion of the judgment.

The original instrument is lost. It was recorded in the two counties where the land is situated, and certified copies from these two counties vary in punctuation and immaterial respects. Appellees assert and appellants concede a printed form was used, a prototype of which is in the record, The instrument is substantially as follows, the typed portions being italicized:

“C-90. Royalty Contract Palestine Printing Co-5871 The State of Texas 1 [ KNOW ALL MEN BY THESE PRESENTS: County of Leon J
That we A. Rabe & wife Medie Rabe, of the County of Freestone, State of Texas, have and by these presents do grant, bargain, sell, convey, set over and assign and deliver unto /. W. Barton the following to wit: 1/32 int or 1/4 of 1/8 interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Leon & Freestone County, Texas, to-zvif’ (description, "to place of beginning/’). The said A Rabe NOW occupies said property. together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals, and removing the same therefrom.
“And said above described lands being now under an oil and gas lease originally executed in favor of Keechi Pet. Co. and now held by Keechi Pet. Co., it is understood and agreed that this sale is made subject to said lease, but covers and includes one fourth of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.
“It is agreed and understood that all of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said A. Rabe, and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned by A. Rabe.”

Following the quoted language, the next portion of the printed form was deleted by typewriter: “and . each owning . interest in all oil, gas and other minerals in and upon said land together with . interest in all future rents.” The recited consideration was $800. There followed habendum and general warranty clauses.

The Keechi lease referred to in the instrument was released, and is not involved. Texaco became assignee of an oil, gas and mineral lease describing the same property subsequently executed by Rabe and others, in which a royalty of one-eighth was reserved. Texaco filed a bill of in-terpleader asserting conflicting claims to royalty, and sought a declaratory judgment ■construing the quoted instrument, declaring interests and establishing the division boundary line in a survey. That portion of the judgment relating to the boundary is not complained of, and is undisturbed. Appellants deraign interest through grant- or Rabe; appellees through the grantee, Barton.

The quoted instrument fits with precision the pattern of the holding and the instrument construed in Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 146, which governs our decision. Under it, the present instrument conveyed to Barton an undivided ⅜2 interest in and to the oil, gas and other minerals in place, with a corresponding and incident ⅜2 of the royalty reserved in subsequent leases. Except for difference in the fractional interest in the minerals conveyed, the deletion of the ownership and future rents clause and immaterial variations to be noticed, the quoted in strument is in effect identical to that in the Simmons case. We construe this as the Supreme Court interpreted that conveyance.

Since grantor, as in the Simmons case, reserved the “lease interests” upon termination of the Keechi lease, he retained the right to lease the ⅜2 mineral interest conveyed to Barton. Barton’s successors are “entitled to the royalty provided in the lease” acquired by Texaco to the extent of that ⅝2 interest. Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143 at 146.

We refer briefly to appellees’ arguments to the contrary:

(1) They rely on Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904. The majority opinion there turned on a provision absent here: that upon termination of the lease referred to in the instrument grantee should own “of the lease interest”, future rentals and other mineral privileges; and upon a clause, the counterpart of which was deleted here: grantee “owning one-eighth of one-eighth of” minerals and ⅛& interest in the future rents. There the majority held the latter provisions meant the grantee had the right to lease an undivided ⅛⅛ interest in the minerals, which, with right to bonus and rentals left no right in grantors in that ⅛⅛ interest; and there was conveyed ⅛⅛ of the “usual” royalty under future leases. That holding is neither controlling nor applicable here.

(2) Appellees assert Rabe “retained the right of ingress and egress”. It is not necessary to decide whether it was retained or granted. Under their own contention, the printed form was used, in which the words “together with the right of ingress and egress” are printed following a four-inch blank space provided for description. In Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 145, the instrument provided that “none” of the lease interest should he owned by grantee, and it likewise contained the identically worded “Together with the right of ingress and egress” printed clause following the typed description. That clause was not permitted to control intent by implication in the Simmons case. The bill of interpleader prayed only, in this respect, that the instrument he construed to the extent the stakeholder could safely pay royalties accrued and unpaid which were tendered into the registry, and that the conflicting claims of defendants thereto be adjudicated. Our opinion is not intended to do more.

(3) It is urged that the words, “Royalty Contract”, appearing in the upper margin of the printed form in type a size smaller than the upper case used in the body of the form, constitute a “caption” which are words of the grantor to be construed against him in describing the nature of the estate granted; and that the words should he held to convey the greatest estate permissible thereby. The printed form, before its blanks were filled, was one which provided that there was granted and conveyed “-interest in all of the oil, gas and other minerals in and under and that may he produced” from lands to be therein described. The form also provided space for insertion of the portion of royalty to be paid under any existing lease. We see nothing in the printer’s nomenclature repugnant to or inharmonious with our holding. The name given the form will not be given controlling effect to alter the terms of the express grant, by implication.

(4) Reliance is placed on the fact that the “sale” is made subject to the Keechi lease “but covers and includes ¼⅛- of all the oil royalty and gas rental or royalty due” thereunder. It is said this accounts for the use of the numerals, “or ¼ of ⅛” in the granting clause, because, appellees say, “grantee was to receive thereby ⅜2nd of the production (which was ¼ of the royalty), and not ½2nd of the royalty”. This argument is answered by necessary implication in the Simmons case, above; but it is directly answered by Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563 where also the mineral interest conveyed was stripped of “lease interest”, future rentals and “other mineral privileges.” The clause quoted above refers only to the Keechi lease, and payments to be made thereunder. It does hot by implication apply to future leases. As the Supreme Court said in Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d at 145 (where the instrument also provided the sale “¿overs and includes one-fourth (¾4) of all óf the oil royalty”), thereby “there was no limitation as to the royalty to be received under future leases”. We need not speculate upon the reason for the expression here of dual fractions which represent identical parts of the entire mineral estate. We are of the opinion that the mere reference to or use of the fraction “Ys” ⅛ the granting clause does not require that fraction to be construed as synonymous with “royalty” as the argument would require us to hold. See generally, Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166; Stanton, 7th Inst. Oil & Gas Law, S.W. Legal Found., 317; Masterson, “Double Fraction Problems”, 11 S.W. Law J. 281; Elliott, “The Fractional Mineral Deed ‘Subject to’ a lease”, 36 Tex.L.Rev. 620.

(5) Appellees insist that because grantor retained the “lease interests”, future rentals and mineral privileges, no mineral interest was created, but only a royalty interest. This argument also is directly answered by Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 147. There also the mineral interest conveyed was shorn of executive rights by grantors’ retention of all “lease interest”, and grantee received “none” of future rentals and mineral privileges. See also Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563, 565. Appellees rely on Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699. That decision is not referred to in Simmons. The clause on which the Slaughter case was made to turn (that royalty should be received “only from actual production”) was not present in the Simmons case and it is absent here. In Miller v. Speed, Tex.Civ.App., 259 S.W. 2d 235, no writ, also relied on, there was no language which referred to a mineral interest; there was reserved only an interest in production: “½⅛⅛ of all the oil, gas and other minerals produced”. See Martin v. Snuggs, Tex.Civ.App., 302 S.W.2d 676, 678, writ ref. n. r. e.

(6) Finally it is argued that deletion of the clause mentioned above (relating to ownership and future rents upon cancel-ation or forfeiture of the Keechi lease) is significant as negativing intent to convey an interest in minerals. For the present purposes we assume correctness of appellees’ contention that the clause was so deleted in the original.' In our opinion the omission or elimination of this portion of the form emphasizes the factor which distinguishes this case and the Simmons case from Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904 where the majority opinion held this clause containing a fraction as used in the instrument. (and not omitted or deleted), showed intention to convey only royalty under subsequent leases. Had the blanks in the present deleted clause been filled with a fraction as in Garrett v. Dils Co., the element appellee urges would confront us. If the blank had been filled as in Delta Drilling Co. v. Simmons, above, our present holding would still be required. The blank not having been filled, but the clause having been stricken, it is not a factor in construction, for its deletion may not be said to negative or limit the estate clearly described in the granting clause, by implication. It was not essential to fill the blank or utilize the clause in order to effect conveyance of a mineral interest. As said by Morris, “Mineral Interests or Royalty Interests?” 10th Inst. Oil & Gas Law, S. W. Legal Found., 269, the use of such a clause in many cases “is unnecessary ; it may be positively dangerous. That is to say, it may have the effect, depending upon the facts, of conveying one fractional interest in the minerals and a different fractional interest in the royalties and delay rentals,” resulting from efforts to state the legal consequences “which automatically flow from conveyance of a mineral interest.”

The judgment in this case is a complex and lengthy document, and because of the numerous fractional interests now involved, the re-drafting and modification of that judgment may be most conveniently and accurately done with assistance of counsel in the trial court. The judgment, except as to the boundary matter, is reversed and the cause remanded to the trial court with directions to render judgment in accordance herewith. Reversed and remanded.


author: BELL, Chief Justice.

text:
    W. H. GASTON et ux., Appellants, v. John C. GASTON et ux., Appellees.
    No. 14163.
    Court of Civil Appeals of Texas. Houston.
    Oct. 10, 1963.
    Rehearing Denied Nov. 7,1963.
    W. T. Bennett and Mac L. Bennett, Jr., Huntsville, for appellants.
    Berry & Smither, Huntsville, and Herman H. Reynolds, Seguin, Robert B. Smith-er, Huntsville, of counsel, for appellees.
   BELL, Chief Justice.

This case involves the question as to whether Elizabeth Gaston, a child born October 10, 1956, was a dependent and neglected child when proceedings were filed November 2, 1961, to have her so declared. Trial from which this judgment resulted was to a jury and in response to issues submitted by the court the jury found she was a dependent and neglected child; that appellants, who are the uncle and aunt of Elizabeth, were fit and proper persons to have custody of her; that appellees, the father and mother of Elizabeth, were not fit and proper persons to have custody of her; and the custody of Elizabeth should be given appellants. The trial court overruled appellants’ motion for judgment and granted appellees’ motion for judgment non ob-stante veredicto. The court declared Elizabeth not to be a dependent and neglected child, refused to allow supersedeas of the judgment and ordered her delivered to her mother and father. After this appeal was perfected appellants filed a petition with us asking that the judgment be superseded pending determination of the appeal. We, without written opinion, after hearing oral argument and after briefs were filed, refused to disturb the trial court’s action refusing to supersede the judgment. Appellants, in obedience to the order of the trial court, surrendered possession of Elizabeth and she was delivered to her mother and father.

Appellants take the position there was evidence of probative force to support the jury’s determination that Elizabeth was a dependent and neglected child on November 2, 1961, and the trial court was therefore bound by such determination and could only render judgment declaring her to be a dependent and neglected child. If there is evidence of probative force to support the findings of the jury, then the trial court was in error in not entering judgment finding Elizabeth Gaston to be a dependent and neglected child.

In determining whether there is evidence of probative force to support a jury’s findings, we must view the evidence in a light most favorable to the verdict. If, so viewing it, reasonable minds could reach the same conclusion the jury did, there is evidence to support the verdict and the court may not disregard it.

John Gaston and wife, Miriam Gaston, the mother and father of Elizabeth, were living on a 200 acre farm about seven miles out of the City of Seguin, Guadalupe County, in 1957. They were purchasing the farm. The father had for many years engaged in the real estate business. His work in the real estate business caused him to spend most of each day in San Antonio, Texas, which is about 35 miles from their home. We think it not material to notice appellees’ activities prior to 1957 other than to note that John Gaston testified concerning his strained financial condition due to the prolonged drought which caused financial loss on the farm. Too, the real estate business had been slow. The appellees had four children. The oldest was a girl, Julia, who in 1957 was eight years old. A daughter, Isabelle, was six years old. A boy, John, was five years old. Elizabeth was about ten months old in August, 1957. Until August, 1957 the children and their mother and father were all living together on the farm.

On August 28, 1957, the mother, Miriam, was admitted to the State Hospital in San Antonio. She went there under a 90 day commitment. Her mental illness was diagnosed as schizophrenic reaction, catatonic type. She remained in the hospital until November 22. In September, 1957, the father and the children remained at their home. His mother, who was in her 70’s in age, was assisting him in caring for the children. The father, at this time, was operating a hamburger stand in Seguin. Mr. W. H. Gaston, one of the appellants and a brother of John Gaston, lived in Huntsville, Texas. He was employed by the State of Texas at the State Penitentiary, being Director of Personnel and Machine Records. The mother of John and W. H. Gaston telephoned W. H. Gaston and in response to that call he and his wife, Mrs. Catherine Gaston, went to Se-guin to the home of John Gaston.

There is a difference of opinion as to the exact conditions that existed in the home with regard to its cleanliness and the cleanliness of the children. It does appear, however, that it was no easy task for John Gaston to adequately care for the four children, particularly the baby, Elizabeth. It was difficult for his elderly mother to lift the baby. Julia, who was only eight years old, helped all she could. It does appear without dispute that Elizabeth had a diaper rash. How bad it was is disputed though some evidence shows it was infected. We may assume it was. We may also assume, though it was disputed, that the children, particularly Elizabeth, were very dirty, as was the house. The W. H. Gastons, very commendably, in a desire to be of help during this trying period, wanted to take Elizabeth with them and care for her. Though John Gaston preferred to keep the children together, he consented to their taking the child to care for her until he was in a position to do so. The W. H. Gastons took the child to their home in Huntsville. There they took good care of her, including furnishing her good medical attention. They kept her until sometime in December, 1957, just before Christmas, when they took her back to Seguin at the request of John. Miriam, the mother, was at home from the hospital. There the child remained until January 26, 1958. It might be noted that the mother was at home though the doctors at the hospital felt she was unimproved and needed further treatment.

In January, 1958, Mrs. Catherine Gaston, and her daughter by a previous marriage, went by Seguin to visit the John Gastons. They had been on a trip from Huntsville to Austin and decided to return by way of Seguin. When they arrived in the home they found Elizabeth to be ill. There is a dispute as to whether her father and mother were giving her medical attention. In any event, Mrs. Catherine Gaston testified they were not and that John refused to call a doctor. John said he had previously called a doctor and gotten medicine that was prescribed and had given it to her. Mrs. Catherine Gaston prevailed on the mother and father to allow her to take all of the children, except Julia, the older one, to her home at Huntsville. Here again was a commendable effort for a brother and sister-in-law to help in a period of need. On arriving in Huntsville, medical attention was immediately obtained for Elizabeth. She was hospitalized and was found to be suffering with bronchial pneumonia. About a week or ten days later, John Gaston and his wife went to Huntsville to get the children. They took two of the children home but did not take Elizabeth. There is a dispute as to what was said with regard to taking Elizabeth home. The W. H. Gaston version is that they said nothing about taking her. John Gas-ton’s version is that they did not take her home because of her illness though she was almost recovered from pneumonia.

In June, 1958, Miriam Gaston was readmitted to the hospital and remained there until sometime in November, 1958. She was then given an indefinite furlough. While one doctor testified there was a lack of harmony between the record as to her progress and the indefinite furlough, the fact remains that the indefinite furlough was given. In 1960 a letter or certificate of discharge was given by the hospital. She had apparently not been seen since her indefinite furlough commenced and the evidence shows the letter was given since it had not been necessary for her to return. It was presumed by the hospital authorities that there was such a remission of the condition that she needed no additional treatment until there should be a recurrence of the mental condition. Since the commencement of the furlough, Mrs. Miriam Gaston has been caring for her three children who were at home.

Elizabeth continued in the home of appellants and she has been cared for by them. The appellees have contributed nothing to her support. Appellants have not asked them to do so and when the child first went with appellants, W. H. Gaston told John C. Gaston he was going to claim her as an exemption on his income tax report. He has done so each year. About the middle of 1958, when Miriam was returned to the hospital, appellants visited in San Antonio in the home of Mrs. Dickerson, a sister of John and W. H. Gaston. John Gaston was there as he was staying with Mrs. Dickerson during the week days and working in San Antonio. He spent the weekend at home near Seguin. The record shows that on many such weekends he took Miriam on furloughs. On this visit by appellants Elizabeth was with them and John Gaston visited and played with her. A few weeks later appellants made another visit to the sister’s home while John was there, but they did not bring Elizabeth with them. Mrs. Dickerson testified they told her they did not want to run into the father again while Elizabeth was with them.

In the middle of 1960 Miriam Gaston went to Huntsville to see Elizabeth, but appellants and Elizabeth were out of town according to Mrs. Catherine Gaston’s daughter who was there at the home. Miriam Gaston then returned home.

Sometime after Miriam Gaston’s second period of confinement commenced, appellants asked Mrs. Dickerson to determine by talking with the doctors what Miriam’s chances of recovery were. They stated they thought the time had come to institute some legal proceedings in connection with custody of Elizabeth. Mrs. Dickerson talked with Dr. Moran, one of the attending doctors, who expressed the opinion her chances were excellent. She communicated this information to the W. H. Gastons together with the doctor’s opinion it was important to the patient that no child be taken from her. It should also be noted that the records of the hospital and testimony of the attending physicians was that Miriam always expressed love for the children.

In August and September, 1961, Mrs. Miriam Gaston went to see a psychiatrist in Houston named Dr. Brenner. We feel his testimony shows without doubt her mental illness was certainly in what psychiatrists call “complete remission” instead of cure.

On October 30, 1961, Mrs. Miriam Gas-ton went to Huntsville to get Elizabeth to return her to the John Gaston home. Mrs. Catherine Gaston told her W. H. Gaston was away and she would not like to let the child go while he was away. However, Mrs. Catherine Gaston agreed she would bring Elizabeth home the next day. The child was not returned as agreed. Instead of returning the child appellants, on November 2, 1961, filed a petition in the District Court of Walker County alleging Elizabeth to be a dependent and neglected child. The bases of the contention were the circumstances of Elizabeth’s illness and the condition of the John Gaston home in January, 1958, when the child was ill, as we have above set out, and the fact the child had been in appellants’ home since that time and appellees had not, until October, 1961, visited the child, inquired about it or supported it. No notice was given appellees though appellants at all times knew where they lived and knew they were seeking, now that they were in a position to do so, to obtain the return of the child. Since appellees lived outside Walker County no notice is required by law. The court appointed an attorney to represent the child and, after hearing testimony, on November 3, 1961 declared Elizabeth to be a dependent and neglected child and granted custody to appellants.

As the child had not been returned as agreed, Mrs. Miriam Gaston consulted an attorney in Huntsville, who on investigation found out about the dependency proceedings. On November 9, 1961, appellees filed their petition, which they called a motion for new trial, asking the judgment of November 3 be set aside because Elizabeth was not a dependent and neglected child, and asked she be returned to them.

At the jury trial in October, 1962, in addition to what we have above recited, some of the doctors from the State Hospital testified by deposition. In addition to what we have stated concerning Miriam Gaston’s mental condition, they testified giving opinions about her chances of having attacks in the future. The effect of their testimony, based on the record (they had not seen her since 1958), was that it was likely she would have attacks in the future. They refuse in cases of this type to speak of “cure” but speak of “remission.” They admit there is in many cases remission and no later attacks.

The evidence showed that appellants had no knowledge of the condition of the home since January, 1958, and did not purport to testify about it since then. The only evidence concerning the conditions since comes from appellees and Mrs. Dickerson, whose testimony shows a fit and clean home.

The evidence does show that after the visit in mid-1958 in the home of Mrs. Dickerson in San Antonio, appellees, except for the one time in 1960, and in October, 1961, did not visit Elizabeth. Neither did they contribute to her support nor make inquiries concerning her. They did not send her presents at Christmas or on her birthday or at other times. Appellants have taken good care of Elizabeth. They have furnished a good home. There is no suggestion that appellants’ home is not a fit home. Appellants are to be commended for all they have done. There is no question they genuinely love Elizabeth and have her best interests at heart.

We hold, after viewing the evidence most favorably to the jury’s answer finding Elizabeth to be a dependent and neglected child, that there is no evidence of probative value supporting the finding and the court did not err in disregarding it and finding she was not a dependent and neglected child.

A child must in fact be dependent and neglected at the time the proceedings are instituted or be in imminent danger of becoming so. Pettit v. Engelking, 260 S.W.2d 613, C.C.A., writ ref., n. r. e. See also Sutter v. Yutz, 223 S.W.2d 554, C.C.A., error dism.; Voigt v. Carlson, 310 S.W.2d 588, C.C.A., writ ref., n. r. e. Certainly there is no evidence that when dependency proceedings were commenced Elizabeth was destitute and without a home or was not then receiving proper parental guidance from appellants, who were for the moment in the status of loco parentis. Their home was a fine one and Elizabeth was receiving excellent care. Nor can it be said that she was in imminent danger of becoming homeless, destitute or without proper parental guidance. There was, it is true, no legal obligation on the part of appellants to continue the care they had given, but the appellees, the mother and father, were at the very time insisting on her return to them and there is no evidence that they were not then in a position to properly care for her, or that their home was not a fit and proper one. The child was not dependent on the public for support. Whatever might have been the state of affairs in January, 1958, when the child was taken from the home, the same conditions did not exist when the dependency proceedings were filed and the hearing held.

This case is unlike Bee v. Robbins, 303 S.W.2d 827, C.C.A., no writ history, which is so heavily relied on by appellants. There the child’s mother was dead. The father was serving a 50 year term in the penitentiary for murder. The relatives to whom the father had surrendered possession so it would be taken care of were taking care of the child but were under no legal obligation to do so. However, there, if the relatives ceased to do so there would be no family to care for it. It was thus in imminent danger of becoming a dependent and neglected child through want of proper parental guidance.

What appellants really rely on to show dependency is abandonment. They seek to have this inferred from the fact that appel-lees did not support the child from 1958 to October, 1961, nor offer to do so, and with the two exceptions above mentioned did not inquire about the child. These facts alone are not determinative. Certainly the undisputed evidence shows that appellants knew when they first got the child in September, 1957, that appellees were in hard circumstances and they wanted to help out. Appellees did not want the child to go but finally consented if appellants would agree to return it upon request. While appellants deny such agreement, they in fact did return the child in December as requested. In January, 1958, when the child was taken with the consent of appellees, though they reluctantly agreed to it, it was again done by appellants to help appellees because of the difficult circumstances. As W. H. Gas-ton testified on trial, when he took the child it was the doing of a brotherly act. When asked when it ceased to be a brotherly act, he answered it had not ceased to be one.

Unquestionably the evidence fails to show that appellees abandoned the child and left it to public charity and ceased to be concerned with its welfare. Appellants at all times knew where appellees were. They never called on appellees for any support or sought to return the child. Appellees knew the appellants had a good home; they knew W. H. Gaston had an honorable and responsible position; they knew appellants were taking an income tax deduction that was more advantageous in the light of their relative incomes and number of dependents. Too, Mrs. Miriam Gaston’s illness was of a nature that the passage of time would tell whether a recurrence was likely. John Gaston had a right, under all circumstances, to believe the child was being well cared for by his brother and if the brother felt he should or could no longer care for the child he would get in touch with him.

This case is distinguishable from De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, and Thomson v. Harrell, 271 S.W.2d 724, C.C.A., no writ history. In those cases the parents had in effect left the children for the public to support and had gone off to other states and, at the time of the declaration of dependency, the parents’ whereabouts were unknown. Too, adoption of the children had followed in each case. In each case the parents learned the facts shortly after declaration of dependency and adoption and in each instance waited several years thereafter before taking any action. In the Thomson case there was never a suit seeking to set aside the judgment finding the child to be dependent and neglected.

There is no evidence supporting the finding that appellees were not fit and proper persons to have custody of their child. It belongs, as a matter of law, under the facts shown in this case, with its mother and father and brother and sisters.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    E. G. AYCOCK et ux., Appellants, v. CITY OF FORT WORTH, Appellee.
    No. 16451.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 4, 1963.
    Rehearing Denied Nov. 1,1963.

      E. G. Aycock, Fort Worth, for appellants.
    S. G. Johndroe, Jr., City Atty., Jerome H. Parker, Jr., and Joseph J. Minton, Jr., Asst. City Attys. Fort Worth, for appellee.
   MASSEY, Chief Justice.

Suit was brought by the City of Fort Worth as plaintiff, to recover several years of delinquent ad valorem taxes of defendants E. G. Aycock and wife. After issues were joined by the pleadings the City moved for summary judgment. Upon a hearing such character of judgment was rendered. Appeal was taken therefrom.

Judgment reversed and cause remanded for trial.

For convenience the City of Fort Worth will hereinafter be termed as the authority. Defendants Aycock et ux. will be treated in the singular and termed the taxpayer.

In the ordinary trial of a suit by a taxing authority against a taxpayer for ad valorem taxes a prima facie case, on the validity of the assessed valuations upon which the tax liability would be founded, is made by introducing into evidence the official records. These would be the official tax rolls. Where summary judgment is sought in such a proceeding, the moving party being the authority, we think the affidavit of the official having custody of the rolls, exhibiting what is reflected by them and their availability for introduction in evidence upon a trial on the merits, would suffice to establish a prima facie case for purposes of the proceeding. It was by such affidavit that the authority did purport to make out its prima facie case. Of course, it is to be noticed that copies of papers or parts thereof referred to in such an affidavit should be attached or served, and themselves sworn to or certified. Texas Rules of Civil Procedure, rule 166-A(e), “Summary Judgment”. A prima facie case was probably made out except for an error in the authority’s proof upon the amount of arrears in taxes and penalties. Such proof was relative to an elapsed time which covered a greater number of years than the time declared upon in the authority’s pleadings. We write on this in the latter part of the opinion.

We initially consider the propriety of summary judgment awarding taxes (what the taxpayer contends was “excess” taxes) for any portion of the period covered by the authority’s pleadings. Basic attack thereupon by the taxpayer is applicable to that portion of such taxes he deemed excessive. It is only as applied to what he deems “excess” that he is defending against the authority’s claim, since his obj ective is to have the “excess” eliminated from his tax obligation. In resolving the question we must examine the state of the taxpayer’s pleadings and also his counter-affidavits, etc. filed in opposition to the motion for summary judgment.

The taxpayer, among other defenses, plead illegality of the procedure (as to each tax period) by and under which his property was valued for assessment in that the value thereof was not ascertained in accordance with legal requirements. He plead that he had rendered his property for tax purposes, had objected to the recommended increases in his valuation by the assessor, and had appeared before the board of equalization at each hearing set for the purpose of considering evidence upon the matter of proper evaluation of his property. At said hearings, averred the taxpayer, he had substantiated the valuation upon which he had made his several renditions by legal evidence, to be countered not at all or in any respect by contradictory evidence that his property had the greater value recommended by the tax assessor. By reason thereof it is contended that the authority’s right to taxes for each year is limited by the taxpayer’s rendition and the only evidence heard. Nevertheless, averred the taxpayer, each hearing ended with the board declaring its quasi-judicial decision fixing the valuation of his property at more than 50% than was supported by any evidence, the whole of the evidence in every instance having been his own.

It is our opinion, from inspection of the counter-affidavit of the taxpayer, filed in opposition to the taxing authority’s motion for summary judgment, that the same adequately supported the allegations of the taxpayer’s pleadings in respect to the matters stated in the foregoing paragraph so as to make issues of fact for trial. Further, we believe that he raised issues upon the question of whether he was thereby materially prejudiced. Therefore the taxpayer has shown that he is entitled to a trial and that summary judgment against him was erroneous.

Despite the provisions in Vernon’s Ann.Texas Rev.Civ.St. Art. 7329, “Defense to tax suits”, — which purport to confine a defendant in a suit for delinquent taxes to defenses that he did not own the land sought to be taxed, had already paid the taxes claimed, or that the taxes sought were in excess of the limit allowed by law, — it is settled that the provisions of said article do not have validity operable to prevent a defendant taxpayer from presenting those additional defenses to such a suit which are guaranteed him under any provision in our State Constitution. See Vance v. Town of Pleasanton, 1924 (Tex.Civ.App., San Antonio), 261 S.W. 457, and Town of Pleasanton v. Vance, 1925 (Tex.Com.App.), 277 S.W. 89, opinion adopted. The statement and holdings therein to this effect are fundamental to the law of this state.

The taxpayer in the instant case was not cut off from presenting the defense he plead, upon which he raised an issue or issues of fact by his counter-affidavit. The defense was vouchsafed to him in our State Constitution, Vernon’s Ann.St. in Art. VIII, “Taxation and Revenue”, § 1, “Equals ity and uniformity; * * * ”, which provides that the taxable value of property shall be ascertained as may be provided by law. It was in obedience to the mandate of this provision that the Legislature provided the method for ascertaining the taxable values of property by enacting statutes, including Art. 7211, “Equalization of assessments”, and Art. 7212, “Boards may equalize”. A property owner may invoke these statutes to defeat a suit for taxes not ascertained as thereunder provided, notwithstanding other statutes which would deny him such defense. See the Court of Civil Appeals opinion in Vance v. Town of Pleasanton, supra. This constitutional guaranty follows and is controlling of the method the Legislature has prescribed for ascertaining taxable values and is to be considered in connection therewith. That the taxing authority in the instant case was a City under the Home Rule Amendment would give it no greater latitude in respect to the machinery of taxation or the controls regulating such in our Constitution and statutes, for as the state and county government is confined so it is likewise confined. The control persists no matter the form of ordinance such a City might enact bearing provisions purporting to evade it.

Of course, a taxpayer who delays in taking action, foregoing a direct attack by way of injunctive relief, etc., and awaiting a suit for delinquent taxes to be filed against him (wherein he presents his defenses through the avenue of collateral attack), incurs a greater burden in his attempt to prevail against the authority seeking taxes of him in a suit brought therefor. State v. Whittenburg, 1954, 153 Tex. 205, 265 S.W.2d 569.

Nevertheless, such a taxpayer is not deprived of the right to prevail if he can prove fraud, want of jurisdiction, illegality ■or the adoption of an arbitrary and fundamentally erroneous plan or scheme of taxation by the authority (generally, and including his property,—or specifically as applied to his property), provided he furthermore proves that thereby and by reason thereof, through the application of said plan or scheme he will be or was prejudiced and caused to suffer substantial injury. Whaley v. Nocona Independent School District, 1960 (Tex.Civ.App., Fort Worth), 339 S.W.2d 265, error refused.

Disregarding portions of the counter-affidavit, filed in opposition to the authority’s motion for summary judgment, it is not to be doubted that the taxpayer did therein present in proper form his proof, available for introduction upon a trial on the merits, which proof met legal requirements which inhibited rendition of summary judgment against him. We have heretofore discussed the taxpayer’s pleadings, particularly the portion thereof under which we deem the evidence of his available proof to be sufficient

We are furthermore of the opinion that summary judgment was improper for an additional reason. Though the plaintiff’s petition, exhibiting the authority’s action for taxes, averred the taxpayer’s liability for the years 1952 to 1957, inclusive, the prima facie case made out for summary judgment was for the total amount of taxes claimed of the taxpayer on the same property for the years 1952 to 1959, inclusive, without exhibiting what part of the whole total amount of taxes constituted the accrued tax liability for the years 1952 to 1957, inclusive. In other words it was not possible, absent speculation, to determine the amount of taxes due for the years 1952 to 1957, inclusive, because the evidence was not calculable as confined to such period. Therefore, even should we be of the opinion that summary judgment would have been proper for the shorter period (reflected in the plaintiff’s petition) and that error in the judgment existed only in respect to having additionally awarded judgment for taxes covering 1958 and 1959, as the judgment did, we could not reform and affirm.

The authority argues that since the summary judgment decree indicates that the trial court heard evidence, connotated by recitation therein in a form, thus: “ * * * and after having considered the evidence, pleadings on file, affidavits, and arguments of counsel, the court finds that there is an absence of any genuine issue * * * ”, it would be proper to treat the taxpayer’s liability for the 1958 and 1959 taxes as having been properly tried or considered under the provisions of T.R.C.P. rule 67, “Amendments to Conform to Issues Tried Without Objection”. While -it has not heretofore been specifically so held, we believe and hold that Rule 67 would not have application to a motion for summary judgment so as to support a decree granting any affirmative relief beyond the scope of a movant’s pleadings. That this is correct legal logic is obvious when consideration is given to instances in which Rule 67 has been considered in a test of its application, the applicable rule of law prior to its adoption, and the purposes it was intended to serve. See also McDonald, Texas Civil Practice, p. 1397, “Judgments”, § 17.27, “Judgment After Trial. A. Conformity to Pleadings and Nature of Case Proved”. Summary judgments entered on application of one moving for affirmative relief are controlled by T.R.C.P. 301, “Judgments”.

The summary judgment is reversed and the cause remanded for trial.

LANGDON, J., not participating.