author: COLLINGS, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Harold D. STRECH, Appellee.
    No. 4123.
    Court of Civil Appeals of Texas. Eastland.
    April 28, 1967.
    Rehearing Denied May 26,1967.

      Turpin, Smith, Dyer, Hardie & Harman, Lawrence Fuller and Max Osborn, Midland, for appellant.
    Warren Burnett, Odessa, Robert D. Pue, Odessa, for appellee.
   COLLINGS, Justice.

This is a Workmen’s Compensation case. Based upon jury findings, judgment was rendered for plaintiff Harold D. Strech against The Travelers Insurance Company for maximum benefits under the Workmen’s Compensation Law for total and permanent incapacity. Plaintiff alleged in his petition that his incapacity resulted from an injury to his head, neck, shoulders and back sustained on February 12, 1964 while he was engaged in the course of his employment with Frank Strech Trucking Company in Ector County. Travelers Insurance Company has appealed.

In appellant’s first two points it is contended that (1) the court erred in overruling its pleas to the jurisdiction because appellee’s claim before the Industrial Accident Board was for a heart attack and his petition in the District Court presented a new and different claim for injuries to his head, neck, shoulders and back and (2) that the court erred in submitting special issue number 1 to the jury inquiring whether appellee sustained an injury because the record shows that his claim to the Industrial Accident Board was for a heart attack and no claim for a heart attack was made in the District Court; that the court had no jurisdiction of the claim presented to the jury.

The record does show that in appellee’s claim before the Board he asserted he was injured on February 12, 1964, and that “Claimant while loading equipment had a heart attack resulting in disability of a degree and duration as yet undetermined.” It was alleged in appellee’s original petition that on February 12, 1964, he “was suddenly, accidentally and unexpectedly injured, and received the following disabling injuries to his body: Injury and damage to the nerves, bones and soft tissues of the head, neck, shoulders and back, resulting in total and permanent disability.” Appellee’s first supplemental petition incorporated his original petition and contained the further allegations “that plaintiff suffered a severe substernal pain and that he had an attack of angina pectoris and that plaintiff suffered some degree of coronary insufficiency, commonly called heart attack.” Appellant filed a plea to the jurisdiction contending that there was a variance between appellee’s claim before the Board and before the court. The motion was overruled.

It is well settled that in Workmen’s Compensation cases the court is without jurisdiction unless the claim upon which the court action is based has been first presented to and acted upon by the Industrial Accident Board. Hartford Accident & Indemnity Co.' v. Choate, 126 Tex. 368, 89 S.W.2d 20S (Tex.Com.App.1936) ; Solomon v. Massachusetts Bonding and Ins. Co., 347 S.W.2d 17 (Tex.Civ.App.1961, writ ref.), and cases cited therein. We are of the opinion, however, that the above cited cases are distinguishable from the facts of the instant case and that the court properly overruled appellant’s pleas to the jurisdiction and its objections to special issue number 1. In the instant case the claim before the board was for a general injury as was the claim asserted in the District Court. The applicable rule is stated in Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W.2d 322, (Tex.Com.App., Section B, 1938), as follows:

“It has repeatedly been held that, although one claim cannot be filed with the board and another and different claim asserted in court, yet when the injury suffered is of that class of injuries, sometimes called general injuries, for which the compensation is based upon incapacity to work, and not of that class of injuries usually called specific injuries, for which the amount of compensation is fixed by the statute, a general description of the injury is sufficient in the claim made before the board, and that in the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately resulting from the accident.”

In Associated Indemnity Corp. v. Kujawa, 153 Tex. 314, 268 S.W.2d 122 (1954), it is stated as follows:

“The injury alleged in the notice and claim before the Board was a ‘general injury’. The ruling of the trial court prohibited respondent from enlarging the claim so as to include all injuries proximately resulting from the accident. This was error * * *

See also Safety Casualty Co. v. Brown, 229 F.2d 889 (5th Cir. 1956); Insurers Indemnity & Insurance Company v. Brown, 172 S.W.2d 174 (Tex.Civ.App.1943, error refused.) In the last cited case the claim before the Industrial Accident Board described the injury complained of as follows:

“Cause of injury — picking up cement line off Haliburtons truck, foot slipped and I fell back with pipe in hand and fell into lead tongs striking the lower part of my back on tongs. * * * ”

In his pleadings to the court he stated:

“While lifting a heavy metal pipe and raising up upon the floor of said drilling rig with said heavy pipe backed into and struck his back in the area between his hips on a pair of Wilson Tongs, thereby causing him to lose his balance and fall to the floor of said rig with great force,

* * * if

The court held in that case that any variance between the claim and the pleading was not material. It was stated that “it was one and the same accident, resulting in general disability for which compensation was sought before the Board and in this suit. Appellant had prompt notice of it and ample opportunity to investigate the accident and the extent of the injury. The assignments on this point are overruled.” In the instant case, as in the cited case, both the claim and pleadings describe a general injury and compensation was sought because of resulting incapacity to work. Both are based upon the same occurrence. There is identity of the time, place and occasion of the injury asserted in the claim and in the pleadings. The variance in the claim and the pleading concerns the description of the nature of the general injury sustained, or the cause of the disability suffered by appellee. The claim before the Board asserted that there was a heart attack resulting in an undetermined degree and duration of disability. The pleadings describe the injury as damage to the head, neck, shoulder and back resulting in total and permanent disability. The evidence shows that appellee, while in the course of his employment and while lifting heavy equipment, began to get sick and dizzy; that he experienced pain from his neck down through his chest and couldn’t breathe; that he couldn’t get his breath and it felt like “the pain had cut it right off”, so it wouldn’t go from his lungs. The evidence indicates that because of this condition appellee suffered disability at the time and thereafter which prevented him from working. Appellee’s employer and others who were present on the occasion thought he had suffered a heart attack. He was carried to the hospital and the diagnosis on admission was “a possible coronary.” Thereafter it was determined by the doctors, and appellee admits, that he did not suffer a heart attack. All the electrocardiogram reports were normal. Ap-pellee admits that no doctor^ treated him for a heart condition or for any illness other than pain in his chest and back. The variance in the claim and in the pleadings was not in the identity of the injury but in the cause of the disability. The immediate symptoms and disabilities were such that the original diagnosis was a heart attack. It was later determined that there was no heart attack and that such was not the cause of appellee’s disability. But, the symptoms and disabilities remained the same or at least of the same nature and were referred to generally in both the claim and pleadings. In the language of the cited case “it was one and the same accident resulting in general disability for which compensation was sought before the Board and in this suit.” In our opinion, the variance between the claim and the pleading was not a material one. Appellant received prompt notice of the claim, had knowledge of the facts and circumstances involved and had ample opportunity for investigation. No reversible error is shown in appellant’s points 1 and 2.

In other points appellant contends that there was no evidence or insufficient ■evidence to support the findings in answer to special issue number 1 that appellee sustained an injury on February 2, 1964, and, in answer to number 2, that such injury was accidental, and that such findings are contrary to the great weight and preponderance of the evidence. These points are not well taken and are overruled. The evidence shows that appel-lee was a truck driver whose duties included the loading and unloading of equipment; that on the occasion of his alleged injury he and a fellow employee were lifting an unusually heavy gauge steel treater by hand to the bed of a tandem truck which was shoulder high. While so engaged he experienced pain from his neck down through his chest which was so great that he had difficulty in breathing. He became faint and “broke out in a cold sweat.” He couldn’t drive his truck. His condition was such that his fellow employees carried him to the hospital where he remained for eight or nine days. A fellow employee reported appellee’s injury to the manager of their employer on the day it occurred and a report of the injury was drawn up by such manager on the same day. After appellant got out of the hospital he went back to work but had so much trouble with his chest, upper back and shortness of breath that he couldn’t stay on the job. Prior to his injury appellee had worked almost every day during the preceding year. Subsequent thereto, and up until the time of the trial, a period of over two years, he was able to work only about twelve weeks doing light carpenter work and odd jobs. Appellee stated that his back just wouldn’t stand “going to work like ordinarily anybody will”; that although some days were better than others his back hurt every day and at times it would be three or four days that he wouldn’t even get out of the house; that he couldn’t tell it was getting any better. In an effort to remedy appellee’s condition his wife took him to the John Sealy Hospital in Galveston. Appellee at various times, saw and was treated by four medical doctors and two chiropractors. Appellee’s wife testified that at the time of the trial his medical bills were running from $95.00 to $100.00 per month. No doctors testified concerning appellee’s injury or disability but hospital records were introduced in evidence. The hospital records indicated that immediately prior to appellee’s admission he was working on a truck when he experienced a sharp pain in his chest, and a shortness of breath, almost choking him; that he was nauseated and experienced cold sweat; that while confined in the hospital he complained of chest pains, of headache, of pain in his neck and back and soreness in the chest.

Where there is sufficient lay testimony of an employee’s injury it is held that testimony of a medical expert as to his opinion concerning the nature and extent of an injury is not necessary to entitle the employee to compensation under the Workmen’s Compensation Act. Appellant’s apparent contention to the contrary is not tenable. Texas Employers Insurance Ass’n v. Hevolow, 136 S.W.2d 931 (Tex.Civ.App. 1940, error dis., judg. correct) ; Employers Reinsurance Corp. v. Jones, 195 S.W.2d 810 (Tex.Civ.App., 1946, ref..n. r. e.).

Damage or harm to the body of an employee originating in and having to do with his work and sustained while engaged in furtherance of the affairs of his employer are compensable. It is held that a strain sustained by an employee in the course of his employment is generally regarded as an accidental injury. Carter v. Travelers Insurance Company, 132 Tex. 288, 120 S.W.2d 581 (1938). Such an injury may be shown by symptoms and by circumstances which support a reasonable inference that the injury occurred. The facts and circumstances of this case, including the hospital records, support such an inference and constitute evidence in support of the finding that appellee sustained an accidental injury on February 12, 1964. Texas Employers’ Insurance Ass’n v. Scott, 46 S.W.2d 348 (Tex. Civ.App., 1932, writ ref.); Texas Reciprocal Insurance Ass’n v. Latham, 72 S.W.2d ■648 (Tex.Civ.App.1934, error dismissed) ; Travelers Insurance Company v. Arnold, 378 S.W.2d 78 (Tex.Civ.App., 1964, no writ history) ; Insurance Company of Texas v. Anderson, 272 S.W.2d 772 (Tex.Civ.App. 1954, ref n. r. e.), and cases cited therein. The evidence as a whole is, in our opinion, sufficient to support the finding that appellee did sustain an injury on February 12, 1964, and such finding is not against the great weight and preponderance of the evidence. On August 12, 1964, six months ■after appellee sustained his injury, his wife employed an attorney to prosecute his claim. Appellee’s claim to the Board was dated August 12, 1964 and was received and stamped by the Board on August 17, 1964. Article 8307, Section 4a, Vernon’s Ann.Tex. Civ.St. provides that no proceeding for compensation shall be maintained unless a claim is made to the Industrial Accident Board within six months after the injury unless there was good cause for the delay. Appellant urges points contending that there was no evidence and insufficient evidence to support the jury finding that appellee had good cause for the late filing of his claim and that such finding is against the great weight and preponderance of the evidence. In this connection, there was evidence to the effect that appellant’s claim adjuster told appellee that the filing of his claim would be taken care of, “ — that he would take care of everything.” Appellee testified that because of this representation he was led to believe that notice of injury had been filed with the Industrial Accident Board. The testimony of appellee and his wife indicate that thereafter she talked with the adjuster several times about the matter; that when she inquired about the claim on August 12, 1964, the adjuster stated that although he was doing all he could to straighten the matter out, they had been unable to find anybody who said anything happened to her husband. On the afternoon of that same day appellee’s wife contacted and employed the attorney.

Ordinarily the question of whether a claimant has used the degree of diligence necessary to excuse him from filing a claim with the Board within the time prescribed by the statute is one of fact, and it is held that to maintain a claim filed after the expiration of such period, the claimant must prove that good cause for failure to file the claim continued up to the date of filing. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Sup.Ct.1965); Hartford Accident and Indemnity Co. v. Hardin, 252 S.W.2d 752 (Tex.Civ.App. 1952, error refused). It is held that where a claimant relies on statements made by the compensation insurer’s claim adjuster that a claim for compensation was being filed, that this is sufficient to raise a fact question concerning the existence of good cause for failure to file a claim within the statutory period. Likewise when there are delays before and after an injured employee acquires .knowledge which puts him on notice that the burden is upon him to prosecute his claim, it is held that a reasonable time thereafter should be allowed for the filing of the claim. Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370 (1948). In the instant case the evidence indicates that the claim was prepared on the same day that appellee acquired such knowledge and that the claim was received and filed by the Board five days later. In our opinion there was evidence supporting the finding that good cause existed for appellee’s failure to file his claim before he did. The evidence is sufficient to support such finding and the finding is not against the great weight and preponderance of the evidence. Great American Indemnity Company v. Beaupre, 191 S.W.2d 883 (Tex.Civ.App., 1945, ref. n. r. e.) ; Trinity Universal Insurance Company v. Christian, 289 S.W.2d 656 (Tex.Civ.App.1959, ref. n. r. e.); Texas Employers Insurance Ass’n v. Hudgins, 294 S.W.2d 446 (Tex.Civ.App.1956, ref. n. r. e.).

The judgment is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    EASTMAN OIL WELL SURVEY COMPANY, Appellant, v. A. B. HAMIL, Appellee.
    No. 15095.
    Court of Civil Appeals of Texas. Houston.
    June 1, 1967.
    Rehearing Denied June 22, 1967.

      William R. Eckhardt, James R. Bertrand, Houston, Vinson, Elkins, Weems & Searls, Houston, of counsel, for appellant.
    Fred C. Brigman, Jr., Houston, Brigman, Martin & Smith, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by Eastman Oil Well Survey Company, herein called Eastman, against A. B. Hamil, appellee, to recover the amount allegedly advanced by Eastman for the management and operation of Pipeline Services, Inc., herein called Pipeline, under a contract entered into by Eastman and Pipeline, sometimes referred to as the basic agreement or contract. After beginning the trial the parties waived the jury and submitted all issues of fact and law to the court. From a take-nothing judgment of the court, appellant has duly perfected its appeal.

The agreement between Eastman and Pipeline was entered into on September 27, 1960. Under such agreement Eastman undertook the management and operation of the business of Pipeline, a Colorado corporation chartered on August 23, 1960. The contract provided, among other things, that Eastman would lend such working capital as it deemed necessary and proper in the operation and development of the business of Pipeline, and manufacture at Eastman’s cost such equipment as might be required for Pipeline’s business and which it might be feasible for Eastman to manufacture with its facilities. Eastman was to receive 20% of the net profits derived from the operation of Pipeline. In the agreement “net profits” was defined as meaning gross sales less all operational costs payable to Eastman under the contract, not including the 20% of the net profits, and less certain other costs. Eastman was not chargeable with or to participate in any losses. The contract further provided that the agreement was to remain in full force and effect for a period of one year unless sooner terminated by the reorganization of either or both parties thereto, or the mutual agreement of the parties.

The evidence shows that Bill Morrison, president of Pipeline, controlled M.K.Y., an Oklahoma corporation, and that either it or Morrison owned patents covering a pipeline plugging pig, a device used to plug the flow of pipelines in order that the same might be cleaned out or repaired without wasting the contents of the pipeline. It was contemplated that Pipeline would obtain the patent rights from M.K.Y. and that Eastman would undertake the management and operation of Pipeline and advance funds for such management and operation. Philip D. Arterburn, formerly the president of Eastman, testified by deposition that he refused to deliver the executed agreement to Pipeline, which was a new corporation without any assets, without a- letter of guarantee from the controlling stockholders of Pipeline. By a letter agreement, A. B. Hamil, Harry T. McClain, Bill Morrison and John H. Lowell, representing themselves to be the controlling stockholders of Pipeline, addressed the following letter guarantee to Eastman under date of September 28, 1960:

Gentlemen:
By agreement dated September 27, 1960 you (Eastman) have undertaken the operation of Pipeline Services, Inc. (Pipeline) as of an effective date of September 1, 1960.
Eastman has and intends to continue to advance funds for the operation of Pipeline according to its agreement with Pipeline.
To date, the reorganization of Pipeline Services, Inc. and M.K.Y. Corporation, the planned predecessor organization of Pipeline, has not been formally effected.
If such reorganization is not in fact effected along with the lending of funds in an amount sufficient to retire the presently existing trade and other obligations of the predecessor organization, the undersigned as controlling stockholders of Pipeline herewith guarantee the return to Eastman of all funds advanced by Eastman for the operation of Pipeline.
When and if such reorganization is effected and the said funds advanced we shall by such action be released from such guarantee.
Very truly yours,
■ /s/ A. B. Hamil A. B. Hamil
/s/ Harry T. McClain Harry T. McClain
/s/ Bill Morrison Bill Morrison
/s/ John H. Lowell John H. Lowell

There is evidence that the basic agreement and the letter guarantee were exchanged and delivered simultaneously.

Pipeline was organized to engage in the business of providing pipeline plugging pig service for pipeline owners. The plan contemplated the providing by appellee, A. B. Hamil, and others, of the necessary moneys or credit to retire the obligations of M.K.Y. Corporation, and the acquisition of the plugging pig patent by Pipeline through a reorganization of that corporation with M.K.Y. Corporation, and the use of the nationwide marketing facilities of Eastman for the promotion of sales of the pipeline plugging pig service. No reorganization of Pipeline and M.K.Y. Corporation was ever formally effected, and no funds were advanced to retire the trade and other obligations of M.K.Y.

Just prior to December 7, 1960 Eastman discovered that Morrison had disposed of the patent rights covering the pipeline plugging pig to a third party, thus making it unavailable to Pipeline. Without the right to the basic patent covering the services which Eastman was providing and agreed to provide, it did not wish to continue the management and operation of Pipeline. By mutual agreement, as provided in the basic contract, it was terminated by letter dated December 7, 1960, signed by Eastman and Pipeline, which reads as follows:

Eastman Oil Well Survey Co.
14S0 Speer Boulevard Denver, Colorado Gentleman:
Eastman Oil Well Survey Co. (Eastman) and Pipeline Services, Inc. (Pipeline) entered into an agreement dated September 27, 1960, under which Eastman was to manage and otherwise operate the business of Pipeline.
Paragraph 2.7 of the said agreement called for its termination by mutual agreement of the parties. The parties have in fact agreed to terminate the said agreement as of December 7, 1960.
In connection with such termination it is agreed that Eastman shall terminate all further expenditures relative to its agreement with Pipeline and Pipeline shall be responsible to pay only such costs as may be incurred after such termination for salaries or wages required to be paid to employees of Pipeline after notice of termination of employment by applicable state laws. Eastman shall undertake the giving of notices of employment termination to Pipeline personnel.
If the foregoing is in accord with your understanding, please so indicate in the space provided below for that purpose.
Very truly yours,
PIPELINE SERVICES, INC.
By: /s/ Bill Morrison President
ATTEST:
/s/ Bruce Kistler Secretary
The foregoing agreement is confirmed and accepted. EASTMAN OIL WELL SURVEY CO.
By: /s/ P. D. Arterburn President
ATTEST:
/s/ J. W. McClung Secretary

In its conclusions of law the trial court found and concluded that the guarantee agreement was unconditionally delivered to Eastman, and that but for the release dated December 7, 1960, Hamil would be obligated by reason of the guarantee agreement to pay Eastman the sum of $36,781.37. The court further found and concluded that the termination agreement of December 7, 1960 did by its terms release Pipeline from its obligation under its contract to repay Eastman the amount of funds advanced by Eastman for the operation of Pipeline.

Appellant asserts that the trial court erred in construing the termination agreement as a release of appellee Hamil from his contractual obligation to repay to Eastman the amount of the funds advanced by Eastman prior to December 7, 1960 for the operation of Pipeline. It is also appellant’s contention that the court erred in overruling its motion for judgment and in entering judgment for appellee because irrespective of whether the termination agreement released Pipeline, it did not release appellee who was primarily liable as a co-obligor to return to Eastman all funds advanced for the operation of Pipeline.

The principal question for determination is whether the termination agreement released Pipeline from its obligation to repay Eastman the amount of $36,781.37 which was advanced by Eastman during the period from September 27, 1960 through December 7, 1960 for the operation of Pipeline in accordance with the basic contract of September 27, 1960. The undisputed evidence shows that Eastman did advance such amount for the operation of Pipeline, and no part of such sum has been repaid. The evidence further shows that appellee and the other joint obligors in such letter guarantee did not pay off the obligations of M.K.Y. Corporation and the reorganization of that company with Pipeline was not accomplished, and that Pipeline had no bank account and no assets. The evidence is not clear as to who prepared the termination agreement. Arter-burn testified he did not know, but that he was under the impression that Mr. Kistler, Pipeline’s attorney, drew it since he was present at the time it was executed. The evidence shows that Mr. Tull, Eastman’s attorney, was also present. The termination agreement, however, is in the form of a letter from Pipeline to Eastman, which fact gives rise to an inference that Pipeline drafted it. There is no pleading or contention by either party that such termination agreement is ambiguous or that it was procured by fraud, accident, or mistake.

The evidence is undisputed that appellee was never informed of the intention of Eastman and Pipeline to terminate the basic contract and that he knew nothing about the termination thereof until sometime after the termination agreement had been executed. Appellant takes the position on appeal that even though the court should conclude that the letter guarantee released Pipeline it did not release appellee since he was primarily liable as a co-obligor to return to Eastman all funds advanced for the operation of Pipeline. We do not agree. The instrument itself shows that it is a guarantee on the part of appellee and his co-obligors and not an original promise. It provides that if such reorganization is not effected along with the lending of funds in an amount sufficient to retire the presently existing trade and other obligations of the predecessor organization, such parties as controlling stockholders of Pipeline guarantee the return to Eastman of all funds advanced by Eastman for the operation of Pipeline, and that when and if such reorganization is effected and the said funds are advanced, such parties shall by such action be released from such guarantee.

In its pleading appellant alleges that Hamil and his co-obligors executed their guarantee to Eastman that Eastman would be reimbursed for funds advanced in the event a reorganization of Pipeline and M.K.Y. was not fully and formally effected. Appellant made demand of Pipeline on December 21, 1960 for payment of the amount allegedly due by Pipeline, but made no demand on appellee and his co-obligors for payment of such amount until January 19, 1961. The case was tried on the theory that any liability imposed upon appellee was on the basis of his guarantee as set out in the guarantee agreement.

The termination agreement refers to paragraph 2.7 of the contract which provides for its termination by mutual agreement of the parties, and recites that the parties have agreed to terminate said contract as of December 7, 1960. It then in effect provides: (1) In connection with such termination it is agreed that Eastman shall terminate all further expenditures relative to the contract of September 27, 1960. (2) Pipeline shall be responsible to pay only such costs as may be incurred after such termination for salaries or wages required to be paid to employees of Pipeline after notice of termination of employment by applicable state laws. Thus, it is seen that the termination agreement makes no reference whatever to the indebtedness incurred by Pipeline up to the termination date of December 7, 1960, but does specify that Pipeline shall be responsible for costs that may be incurred after termination for salaries or wages required to be paid after notice or termination of employment by applicable state laws. If it was Pipeline’s intention that it should be released from all the indebtedness owing by it prior to December 7, 1960, it would have been a very simple matter to have so provided in unmistakable language in the termination letter addressed by Pipeline to Eastman.

= In our opinion, the purpose and intention of the parties as reflected in the termination agreement was to terminate the basic contract by mutual consent, to relieve Eastman from making further expenditures, and to protect Pipeline from any obligation to reimburse Eastman for any expenditures Eastman might make after the date of termination except such costs for salaries and wages as Eastman might be required to pay after termination to employees of Pipeline by applicable state laws. To make sure that Pipeline would not be held liable to pay any costs incurred by Eastman subsequent to the date of termination other than such salaries or wages, the instrument provides that Pipeline shall be responsible to pay only such costs as may be incurred after termination for salaries or wages to Pipeline’s employees that Eastman might be required to pay by applicable state laws.

In Portland Gasoline Co. v. Superior Marketing Co., 1951, 150 Tex. 533, 243 S.W.2d 823, the Court referred with approval to a statement made in 12 Am. Jur. 791, Contracts, Sec. 250. We quote a part of that statement in 12 Am.Jur. 792, as follows:

When the evidence of the agreement furnished by the contract itself is not plain and unmistakable, but is open to more than one interpretation, the reasonableness of one meaning as compared with the other and the probability that men in the circumstances of the parties would enter into one agreement or the other are competent for consideration on the question as to what the agreement was which the written contract establishes.

See also Chester v. Jones, 386 S.W.2d 544, Tex.Civ.App. In Hicks v. Smith, 330 S.W.2d 641, Tex.Civ.App., ref., n.r.e., the court said in effect that under rules of law courts will avoid, where possible and proper, a construction which is unreasonable, inequitable, or oppressive.

In the instant case Eastman on the faith of the guarantee of appellee and his co-obligors, expended $36,781.37, as found by the trial court, for the operation of Pipeline. The failure of Pipeline and its controlling stockholders to accomplish the reorganization of Pipeline with M.K.Y. and to retire the obligations of M.K.Y. was not attributable to Eastman. Eastman advanced the funds in question in the amount found by the court, with the understanding that it would be reimbursed in the event Pipeline and its controlling stockholders failed to retire the existing trade and other obligations of M.K.Y. and to accomplish the contemplated reorganization of Pipeline and M.K.Y. It seems unreasonable that under such circumstances Eastman would agree to release an indebtedness of over $36,000.00 when it was not required to do so. The failure of appellee and his co-obligors and Pipeline to perform their part of the original basic agreement would have permitted appellant to refuse to advance further funds for costs and given it the right to terminate the agreement regardless of whether Pipeline consented to enter into a mutual agreement of termination. By the sale of the patent rights, M.K.Y. and Morrison made performance by Pipeline impossible, so that further performance by Eastman was not a prerequisite to its right to terminate the basic agreement and sue for reimbursement of the funds it had advanced.

Appellee emphasizes the following statement made by Arterburn in his deposition which was taken in Denver, Colorado, August 27, 1965: “Well, I called a meeting of all the parties so that everyone would understand — not all the parties, here in Denver, John Lowell and his attorney and our people here in Denver — to go over this situation to find out what could be done. Since the patent itself under which we operated, under which Pipeline Services, Inc., had hoped to operate, had been diverted elsewhere by Pipeline Services’ own president. I wanted to withdraw from this contract or be reimbursed for what we had expended to date.”

The foregoing statement by Arter-burn was made in his oral deposition which was taken about 4½ years after the termination agreement was entered into. It states at the very most what Arterburn in 1965 thought he had in mind at the meeting on December 7, 1960. Arterburn had sold his stock in Eastman in 1961 and had severed all connections with Eastman in 1963, long prior to the taking of his deposition. There is nothing in the evidence to indicate that any such idea that Arter-burn may have entertained mentally was ever expressed at the meeting. Such thought as Arterburn in 1965 thought he had in 1960 was no part of the termination agreement, and even if it had been expressed it would have been merged in the written termination agreement. There is no contention that the termination agreement is ambiguous, hence any idea or thought with respect thereto which Arter-burn may have entertained would be completely immaterial to any issue in the case. The same thing may be said with respect to what Eastman’s lawyer, Tull, thought when his law firm wrote Pipeline demanding payment by Pipeline of the amount which had been advanced to that company by Eastman. The rule for construing an unambiguous written contract has been .stated by our Supreme Court in Ohio Oil Co. v. Smith, Tex.Sup.1963, 365 S.W.2d 621, at 627, as follows:

It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls. See: Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620; See generally: Williston on Contracts § 610; Restatement of the Law of Contracts, § 230.

In the application of the foregoing rule it is our view that the intention of the parties as apparent in the termination agreement is as we have hereinabove construed it.

Appellee asserts that appellant failed to prove that it had advanced any sums to Pipeline in accordance with the management agreement. We have read the entire statement of facts, and overrule such contention. The trial court found that the funds advanced by Eastman for the operation of Pipeline during the period September 27, 1960 through December 7, 1960, were advanced in accordance with the basic contract and in reliance upon the guarantee made by appellee and his co-obligors, and that the total amount advanced by Eastman was $36,781.37. We are of the opinion that there was ample evidence to support such findings by the trial court.

Appellee further contends that there were material alterations made by appellant and Pipeline in the management agreement, and that such alterations released appellee from any liability under the alleged guarantee. The trial court found that the letter guarantee was not dated when executed by appellee, and also that appellee instructed John H. Lowell not to deliver said instrument to Eastman until appellee’s stock in Pipeline was delivered. The court found, however, that the letter agreement was unconditionally delivered to Eastman by John H. Lowell and Bruce Kistler, and that no notice was given to Eastman that such agreement was conditionally delivered or that any instructions had been given that the same was to be delivered only under certain conditions. The evidence shows that neither Lowell nor Kistler represented Eastman in any way, and that Lowell was one of the corobligors of appellee in the letter guarantee, and that Kistler was the attorney for Pipeline and not for Eastman. The law is well settled that a conditional delivery of a guarantee instrument must be broúght home to the obligee in order to relieve a guarantor of his obligation expressed in the guaranty agreement which he has signed. Tarlton v. Trezevant & Cochran, 165 S.W.2d 514, Tex.Civ.App. 1942, ref., w.o.m.; Kugle v. Traders’ State Bank of Cleburne, 252 S.W. 208, Tex.Civ. App.1923, n.w.h.; Bopp v. Hansford, 18 Tex.Civ.App. 340, 45 S.W. 744, 1898, error ref.

The fact that the guarantee agreement was not dated when executed by appellee is immaterial since no date was essential to its validity. Longley v. Caruthers, 1885, 64 Tex. 287; 13 Tex. Jur.2d 224, Contracts, Sec. 78. In Longley the court held that there being no plea of non est factum, and the date of execution of the instrument having been alleged, it was unnecessary to offer parol evidence of its date, and further that no date was essential to the validity of the instrument. The evidence shows that the letter agreement was dated September 28, 1960 when it was delivered to Eastman. In our opinion, there were no material alterations made by appellant and Pipeline in the management agreement. The termination agreement was entered into as provided in the basic contract, and was in accordance with its provisions and not in variance or alteration thereof. There is no evidence of probative force of any non-performance by Eastman of its obligations under the basic .contract.

Appellee alleged that he had no notice of the termination agreement and was, therefore, deprived of any opportunity to protest or to demand that appellant comply with its agreement, or to take action against the principal obligor. He did not allege or undertake to prove that he would have protested or demanded that appellant comply with the agreement other than was done or that he would have taken any action against Pipeline, the principal obligor. The evidence shows that Pipeline apparently had no assets whatever since the patent and equipment were never assigned or transferred to it. Prior to December 7, 1960, Morrison, who controlled M.K.Y. and was the president of Pipeline, had transferred and assigned the pipeline plugging pig, the patent and all the equipment to another corporation at the behest of one Elmer Harber to whom the same had been previously mortgaged by Morrison. Appellee failed to allege or establish an estoppel, nor did he show that the short time which elapsed between the date of the termination agreement and his receiving notice thereof, in any way prejudiced him in taking action against Pipeline.

Appellee also contends that the guarantee agreement never became a binding obligation on him because he was never notified of its acceptance by appellant and he had no knowledge of its having been delivered to appellant in violation of his instructions. No notice of acceptance by appellant was required. The evidence shows that appellant did accept the guarantee, and would not have delivered the basic contract but for the fact that contemporaneously with the delivery thereof the guarantee was delivered to it. The guarantee agreement was delivered unconditionally to appellant by one of appellee’s co-obligors, John H. Lowell. If any instructions were given Lowell by appellee, Eastman had no notice thereof. “Notice of acceptance is not required if it appears from the expression of an offer of guaranty or the conduct of the offeror in expressing the offer that no notice of acceptance was expected or desired by the of-feror.” 27 Tex.Jur.2d 295, Guarantee, Sec. 20, and authorities cited. Appellant, who demanded and relied upon the guarantee which was unconditionally delivered to it, and who knew nothing of any private instructions which appellee may have given to his co-obligor, Lowell, was neither requested nor required to notify the controlling stockholders of Pipeline of the acceptance of the letter of guarantee without which the basic agreement would not have been delivered by appellant to Pipeline. No possible reason existed for nonacceptance by Eastman of the guarantee which it had demanded. Furthermore, notice of acceptance of a guarantee is not required except when the guarantee is in the form of an offer or proposal. Johnson v. Bailey, 1891, 79 Tex. 516, 15 S.W. 499; Hill Mercantile Co. v. Rotan Grocery Co., 127 S.W. 1080, Tex.Civ.App.1910, writ dism. In the instant case, the guarantee agreement is not in the form of an offer or proposal. It clearly shows that it is a completed, unconditional guarantee.

Since we have concluded that the termination agreement was not a release of the amount found by the trial court to have been advanced by Eastman for the operation and management of Pipeline down to December 7, 1960, the judgment of the Trial Court is reversed and judgment is rendered in favor of appellant for the sum of $36,781.37.

Reversed and rendered.


author: DUNAGAN, Chief Justice.

text:
    B. B. McPHEETERS et ux., Appellants, v. The FARMERS STATE BANK, CENTER, TEXAS, Appellee.
    No. 287.
    Court of Civil Appeals of Texas. Tyler.
    June 8, 1967.

      Neal Birmingham, Linden, for appellants.
    McLeroy & McLeroy, Tom McLeroy, Center, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought by appellants, B. B. McPheeters and wife, against the ap-pellee, Farmers State Bank of Center, Texas, to recover $713.33 plus attorney’s fees. The sum in controversy was the amount of a check drawn by appellants on the appellee which the latter paid and charged against the appellants’ account. Appellants alleged that the appellee improperly paid the check and charged it against their account, because the check had been countermanded prior to its presentment to the appellee. The appellee answered by pleading a counterclaim in the amount of $713.33. This counterclaim was based upon an assignment to appellee of certain alleged claims against B. B. Mc-Pheeters owned by the Atlanta National Bank in Atlanta, Texas.

The trial was before the court and at the conclusion of the evidence, a take nothing judgment was entered against appellants. We affirm this judgment.

The facts giving rise to the controversy are essentially as follows: On Thursday, March 19, 1964, appellants drew a check upon their account with appellee in the amount of $713.33 payable to J. O. Hawkins. The check was given to Hawkins as partial consideration for a certain cafe business located in Atlanta, Texas. It was stipulated that the instrument in question was presented by Hawkins to the Atlanta National Bank on Friday, March 20, and that the Atlanta bank paid him the face amount of the check at that time.

After the transaction with Hawkins, the McPheeters became dissatisfied with the sale and they decided to stop payment on the check. About noon on Saturday, March 21, they called the appellee bank and talked with someone there who told them that the bank needed to have a written order before payment of the check could be stopped. Since the bank had closed by the time the call was completed, the McPheeters sent a telegram to Mr. Jack Motley, president of the bank, which read as follows:

“WESTERN UNION
...TELEGRAM
“Charge to the Account of “6-2788
“To MR JACK WHATLEY MOTLEY
Time Filed 119P
Mar 21 1964
“Destination CENTER, TEXAS
“STOP PAYMENT ON CHECK AMOUNT $713.33 TO MR J O HAWKINS.
“B. b. McPheeters”

This telegram was sent to Motley’s home, and it was received by him on Sunday, March 22.

On Monday, March 23, Mrs. McPheeters called the appellee before it opened and talked to a bookkeeper who told her that the telegram had been received and that the check would “not go through.” After talking with the bookkeeper, Mrs. Mc-Pheeters personally went to the bank and talked with Mr. Motley. At this time, Mrs. McPheeters offered to withdraw her account to insure that the check could not be paid but Mr. Motley told her that she did not have anything to worry about, and he assured her that he would send the check back.

After Mrs. McPheeters left the bank, Mr. Motley discovered that on the previous Friday, March 20, Mr. T. E. Morrison, one of appellee’s cashiers, had spoken by telephone with an officer of the Atlanta Bank concerning the McPheeters check. Mr. Morrison told the Atlanta Bank that the check was good and that it would be paid when presented. Upon learning of this, Mr. Motley wrote Mrs. McPheeters and informed her that, because of its representations to the Atlanta Bank, there was no way that the appellee could stop payment on her check. Consequently,, when the check was subsequently presented to appellee, it was paid and the McPheeters-account was charged with the same.

After the above had occurred, the ap-pellee procured from the Atlanta Bank an assignment reading in part as follows:

“* * * the Atlanta National Bank,, in Atlanta, Texas, does hereby transfer and assign unto said Farmers State-Bank, of Center, Texas, all its claim, cause of action, rights and equities against the maker or drawer of such check which this bank had as a holder in due course, and does hereby subro-gate the Farmers State Bank, of Center, Texas, to all such claim, cause of action, rights and equities against such: maker in connection with such transaction.”

This assignment was dated “as of” March: 20, 1964, but was notarized October 8, 1964.

In response to requests therefor, the trial court filed findings of fact substantially in accordance with the above facts. The court also filed conclusions of law, finding (1) that the Atlanta Bank was a holder in due course of the McPheeters check, (2) that the appellee was an assignee of the Atlanta Bank’s causes of action and rights against the appellants, and (3) that, because of this assignment, the appellee was entitled to offset the rights and claims assigned therein against claims of the appellants.

The appellants have appealed this cause on three points of error, contending that the trial court erred (1) in holding that the Atlanta Bank was a holder in due course, (2) in failing to hold that the appellee was liable to appellants by virtue of its payment of the check after it had been countermanded, and (3) in failing to hold that appellee was estopped to deny its liability for paying the check, because of various representations made by it to appellants.

The record does not reveal upon ,what theory the trial court’s judgment was rendered, but, because of his conclusions of law, it would seem that the court did hold that appellee was liable to appellants for paying the check, but that appellee had a lawful offset against appellants’ claim equal to its liability. In this connection, it would seem clear that the check was properly countermanded by substantial compliance with the provisions of Art. 342-712, Vernon’s Ann.Tex.Civ.St., and that appellee became liable to appellants for the amount of the check when it paid the same contrary to the stop payment order, Hewitt v. First Nat. Bank, 113 Tex. 100, 252 S.W. 161 (Tex.Com.App., 1923). This is true regardless of any oral statements to the Atlanta Bank that the check was good and would be paid, American Nat. Bank v. Reed, 134 S.W.2d 782 (Tex. Civ.App., Amarillo, 1939, writ dism.) ; Huffman v. Farmers’ Nat. Bank of Cross Plains, 10 S.W.2d 753 (Tex.Civ.App., Eastland, 1928, no writ).

It would seem, therefore, that the critical question on this appeal is whether or not the appellee’s liability could be offset by the alleged claims against appellant, B. B. McPheeters, which the Atlanta Bank purported to assign to appel-lee. The only point of error in appellants’ brief which relates to this question is their first point which states that the trial court erred in holding that the Atlanta Bank was a holder in due course of the check. In this regard, the parties stipulated and agreed that, at the time J. O. Hawkins negotiated the check to the Atlanta National Bank (1) the check was complete and regular on its face; (2) the check was not overdue; (3) the check had not been previously dishonored; (4) the Atlanta Bank took the check in good faith and for value, and (5) when it took the check, the Atlanta Bank had no notice of any infirmity in the instrument or defect in its title. A person taking a negotiable instrument under these conditions qualifies as a holder in due course under the provisions of Art. 5935, Sec. 52, V.A.T. S. It has been specifically held in cases similar to the present case that a collecting bank becomes a holder in due course if it takes a check which meets the requirements of Sec. 52 and pays value for the same before it has notice that the check has been countermanded, United States Cold Storage Corporation v. First National Bank of' Fort Worth, 350 S.W.2d 856 (Tex.Civ.App., Fort Worth, 1961, writ ref., n.r.e.); Braswell v. First State Bank of Amarillo, 367 S.W.2d 944 (Tex.Civ.App., Amarillo, 1963, writ dism., w.o.j.); City State Bank in Wellington v. Lummus, 277 S.W.2d 262 (Tex.Civ. App., Amarillo, 1954, writ ref., n.r.e.); First Nat. Bank of Quitman v. Moore, 220 S.W.2d 694 (Tex.Civ.App., Texarkana, 1949, writ dism., w.o.j.). Appellants’ point of error challenging the finding that the Atlanta Bank was a holder in due course is accordingly overruled.

Appellants have not brought for-, ward any points of error challenging the validity of the Atlanta Bank’s assignment to appellee, nor have they assigned a point of error contending that the Atlanta Bank had no cause of action against appellants to assign in view of the fact that Atlanta had been paid the full amount of the check by appellee. We cannot, therefore, consider these questions or base any part of our decision thereon, Rule 418, Texas Rules of Civil Procedure; Porter v. Bell, 287 S.W.2d 333 (Tex.Civ.App., San Antonio, 1955, writ ref., n.r.e.); Rutledge v. Valley Evening Monitor, 289 S.W.2d 952 (Tex.Civ.App., San Antonio, 1956, no writ).

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Oscar Colquitte MERRYMAN, Appellant, v. EMPLOYERS NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 6916.
    Court of Civil Appeals of Texas. Beaumont.
    May 25, 1967.
    R. E. McDaniel, Winnie, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit upon an accident insurance policy. Trial was by jury, but at the close of plaintiff’s evidence, the case was withdrawn from the jury and judgment rendered for defendant. The parties will be referred to here as they were in the trial court.

The evidence shows that Chambers County carried a group insurance policy for the benefit of its employees with the defendant. Plaintiff was employed as a deputy sheriff and sustained a broken leg while making an investigation. This injury resulted in the leg having to be amputated. Plaintiff brought this suit for the loss of such leg.

The only question in this case is one of law in construing the policy to determine whether plaintiff had the burden of proof to show that the loss of his leg was through accidental means solely and independently of all other causes. If this. burden was upon plaintiff then the trial court properly rendered judgment for defendant, as the uncontradicted evidence shows that plaintiff had osteomyelitis in the leg which was amputated, since he was nine years of age, and that the amputation resulted from both the fracture and the diseased condition of the leg.

Plaintiff contends the burden was upon defendant to plead and prove that the loss of the leg was partially caused by the diseased condition, and that defendant’s failure to plead specifically such exception under the policy precluded defendant from raising such point. This is in line with the general rule that an insurance company must specially plead any limitation or exception relied upon by it as a defense. Rule 94, Texas Rules of Civil Procedure. The defendant in this case had a general denial and a special denial as follows:

“In this regard, Defendant specifically denies that the loss for which Plaintiff seeks recovery occurred by reason of a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means.”

The pertinent part of the policy of insurance in question reads as follows:

“SECTION 10. ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS FOR EMPLOYEES

1. Benefits Payable

If an employee, while insured for benefits under this Section, suffers any one of the losses specified in the following Schedule of Losses and Benefits as a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means 'and within 90 days after the accident which caused such loss, The Insurance Company will pay the benefit set forth in such schedule.”

We have concluded that the insuring clause itself is the key to the solution of this case. The general hazard insured against was not the loss of a foot, but the loss of a foot effected solely and independently of all other causes through external, violent and accidental means. The burden of proof was upon the plaintiff to allege and prove facts showing that the loss of his leg was covered by the policy, and this he failed to do. Bethea v. National Casualty Company, Tex.Civ.App., 307 S.W.2d 323. We think this holding is strengthened by the provision of the policy following the one above quoted. Part (2) of Section 10, proceeds to set out specifically the “limitations” of liability. It is clear to us that if the defendant had been attempting to rely upon any one of these “limitations” that it would have been necessary for defendant to have plead and proved such defense. See also Tix v. Employers Casualty Company, Tex.Civ.App., 368 S.W.2d 105, and Standard Life & Accident Insurance Co. v. Roberts, Tex.Civ.App., 318 S.W.2d 757. The plaintiff’s points of error are overruled.

Affirmed.


author: LANGDON, Justice.

text:
    L. H. JONES, Appellant, v. PHILCO DISTRIBUTORS, INC., et al., Appellees.
    No. 16835.
    Court of Civil Appeals of Texas. Fort Worth.
    May 26, 1967.
    Rehearing Denied June 23, 1967.
    Joe E. Shaddock, Wichita Falls, for appellant.
    Hill, Paddock & Street, and John G.. Street, Jr., Fort Worth, for appellees.
   OPINION

LANGDON, Justice.

This is an appeal from an order sustaining pleas of privilege filed by defendants, Philco Corporation, a foreign corporation, authorized to do business in Texas, and Philco Distributors, Inc., a Texas corporation.

Plaintiff, L. H. Jones, brought suit for water damage to his home. He alleged that a washing machine manufactured by defendant Philco Corporation and sold by defendant Philco Distributors, Inc., malfunctioned and overflowed, causing extensive damage to his house, floors, and furniture. That such malfunction constituted a breach of express and implied warranty on the part of both defendants. That defendants were negligent in using defective parts and material in the construction of the washing machine and in marketing it with such defects latent in its construction.

The appellant contends that the trial court erred in sustaining defendants’ pleas of privilege, since plaintiff proved venue was properly laid in Wichita County, Texas, under Subdivisions 4, 23, 27 and 29a of Article 1995, Vernon’s Ann.Civ.St.

We affirm.

Appellant bases this appeal primarily on Subdivisions 23 and 27 of Article 1995 V.A. C.S. which provide that suits against private and foreign corporations respectively may be brought in any county where the cause of action or a part thereof arose. Under either of these subdivisions it is necessary for appellant to prove that he has a cause of action. 14 Tex.Jur.2d 561, Corporations, Section 473.

“In support of the judgment it must be presumed that the court found that appellant failed to establish a case founded on trespass. To disturb the judgment appellant therefore has the burden of showing that such trespass has been conclusively established.” Holt v. City of Lubbock, 390 S.W.2d 500 (Tex.Civ.App., 1965, no writ hist.).

This court must find that appellant conclusively established a cause of action before it could reverse the judgment of the trial court.

In Mitchell v. Weatherford, 282 S.W.2d 727 (Tex.Civ.App., 1955, no writ hist.), it was stated: “Where the evidence does not so greatly preponderate in favor o'f the plaintiff as to indicate that the finding of no negligence was the product of bias, then it is the duty of the appellate court to affirm the judgment of the trial court sustaining the plea of privilege. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.” And in McGough v. Massey-Ferguson, Inc., 384 S.W.2d 154 (Tex.Civ.App., 1964, dism.) it was said: “Upon a hearing, the court sustained Massey-Ferguson, Inc.’s plea of privilege. McGough has appealed. To obtain a reversal, appellant is required to show that his right to maintain the suit in East-land County against Massey-Ferguson, Inc. was conclusively established under some exception to Article 1995.”

In a case of this-natuTcthe plaintiff must rely on negligence, express warranty or implied warranty. There is no evidence of negligence or express warranty. Thus, here the appellant must rely solely on implied warranty.

The cases cited by appellant relating to implied warranty hold in effect that in order to recover on this theory it is necessary to establish that there was a defect in the object sold. Dean Page Keeton of the University of Texas School of Law, in an article entitled Products Liability — Liability Without Fault and the Requirement of a Defect, 41 Texas Law Review 855 at page 858, said: “The principle of strict liability has been regarded as applicable only when the product leaves the manufacturer’s hands in a defective condition. Liability on the basis of an implied warranty or breach of a tort duty independent of the contract is not so strict or absolute as to justify a recovery on the part of a user who merely shows that an injury was suffered in the course of a use or shortly thereafter. Regardless of how beneficial and desirable a particular product might be, and even though no method is known to make it safer for use than it is, injuries from its use will occur, sometimes because of misuse of it,, and occasionally even when it is used exactly as it was intended to be. Everyone,, therefore, would recognize that a manufacturer or other seller should not be responsible for any and every hurt that a user or one in the vicinity of use suffers. Therefore, courts that impose strict liability eliminating negligence as a requirement for recovery must adopt some rules or principles as a substitute for negligence as a delimiting principle. The method employed to date is the requirement that there must have been a defect in the product as it left the hands of the manufacturer.”

We find no evidence in this record which would compel a finding on the part of the trial court that there was a defect in the machine as it left the manufacturer. Appellant called, only two witnesses, himself and Mr. Clyde Lane, a mechanic who worked on his washing machine. Lane was not an employee of Philco but of Fed-way stores which sold Philco appliances. Fedway was not a party to the suit nor was Lane. The witness Lane testified that (1) he tested the fill-switch and so far as he could tell it was working; (2) he did not know what caused the machine to overflow; (3) other things than a defective fill-switch can cause an overflow, such as dirt or trash in the water line or high compound. He distinguished between a malfunction of a machine and a defective machine. In considering the testimony of this witness it is apparent that he has no opinion as to what did cause the overflow as distinguished from an opinion as to what kinds of things have been known to cause overflows in washing machines. He did not discover any defect in the machine that could have contributed to the overflow. In summary this witness testified that the overflow could have been caused by a defect but that he found none and that other things could have caused the overflow.

The application of Subdivision 4 was not briefed and thus was waived. 4 Tex.Jur.2d 166, § 658, waiver of assignments of error, and points by failure to brief. This subdivision, relating to defendants in different counties, would not apply under facts of this case in any event as both defendants claimed to reside in Dallas County and there was no evidence to the contrary.

“A necessary party as used in subdivision 29a is a party whose joinder is necessary to afford a plaintiff the full relief to which he is entitled in the suit which he is entitled to maintain against another defendant in the county where suit is brought.” Holt v. City of Lubbock, 390 S.W.2d 500 (Tex.Civ.App., 1965, no writ hist). In the latter case the court stated that since the defendants would be at most joint tort feasors the plaintiff could recover all of his damages from either one of them without the other being in the case. In the suit at hand plaintiff has sued both defendants jointly and severally. In the event he recovered a judgment against both defendants he would be entitled to recover his full judgment from either of them.

Thus, neither of the appellees in this case is a necessary party under Subdivision 29a.

The appellant’s point of error is overruled and the judgment of the trial court is in all things affirmed.

Affirmed.


author: NYE, Justice.

text:
    Hannah HARRISON et al., Appellants, v. Gus E. BROWN, Jr., et al., Appellees.
    No. 224.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 18, 1967.
    Rehearing Denied June 15,1967.

      Lawrence P. Gwin of Bell, Gwin & Furse, Bay City, Mills, Shirley & McMicken, Galveston, for appellants.
    Joe Entzminger, of Entzminger & Uher, Bay City, Chester M. Fulton, of Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.
   NYE, Justice.

OPINION

Marguerite Thompson Watson, Audrey Thompson Norton and Hannah Thompson Harrison, three of the five granddaughters of Hannah Thompson, filed this action for declaratory relief and construction of her will. Plaintiffs alleged in effect that they and a fourth sister Thelma Thompson Davis Barter, were entitled under the last will and testament of Hannah Thompson, deceased, to the undivided one-fifth fee simple remainder interest in some 650.95 acres of land devised by the said grandmother Hannah Thompson to one of the five sisters, Pauline Thompson Britton Brown. It was alleged that the reason that these four granddaughters were entitled to the undivided one-fifth interest previously belonging to their sister Pauline was that she "died without issue.”

Gus E. Brown, Jr., the surviving husband of Pauline Thompson Britton Brown, answered and filed a motion for summary judgment alleging complete ownership in himself of such undivided one-fifth interest by virtue of his wife’s will, and under the will of Hannah Thompson, Pauline’s grandmother. Thelma Thompson Davis Barter was represented by The United States National Bank of Galveston (independent executor and trustee under the will and codicil of Thelma Thompson Davis Barter). They intervened and adopted plaintiffs’ allegations. The three surviving sisters and the bank as independent.,. executor then filed their motion for summary judgment contending that they were entitled under the last will and testament of the grandmother Hannah Thompson to the undivided one-fifth fee simple remainder interest in the land devised by the said Hannah Thompson to their sister Pauline for the reason that Pauline had “died without issue.” The two motions were consolidated for hearing and by agreement of the parties the issue submitted for determination was limited to the proper construction and interpretation of Hannah Thompson’s will.

The district court entered judgment: finding that no genuine issue of fact existed regarding the meaning, construction and interpretation of the Hannah Thompson will; denying plaintiffs’ (the three surviving sisters’ and intervenor bank’s) motion for summary judgment; granting defendant’s motion for summary judgment and construing the will of Hannah Thompson as giving to Pauline Thompson Britton Brown an undivided one-fifth fee simple remainder interest in the disputed 650.95 acres. The plaintiffs (and intervenor) have perfected their appeal. We affirm.

In 1912 Hannah Thompson, the grandmother, executed a will and certain codicils, the relevant provisions of which are quoted verbatim as follows:

THE 1912 ORIGINAL WILL
“Fourth: — To my son, John E. Thompson,
* * * I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, * * *. And among the residue and remainder of the lands of my estate, and by this item, devised and passing to my said son, John E. Thompson, and so intended to pass to him by this my last will, I specially mention that, certain 968 acre tract of land * * * known as the Hiram F. Hall tract. * * *”

In 1920 an important amendment to Hannah Thompson’s will was made in the form of a codicil. It reads as follows:

“Second: And, whereas, in the fourth clause of my said original will I did give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, unto my said son, John E. Thompson, and among the residue and remainder of the lands of my estate, there devised, a certain tract of nine hundred and sixty-eight (968) acres of land, * * *, was intended to pass by said devise to him; I here now revoke said devise in fee to my said son, John E. Thompson, as set forth in said clause of my said original will, and I do here now give and devise the said residue of my real property described in said fourth clause of my said original will, and more specifically said nine hundred and sixty-eight (968) acres of land described therein, and here in and here now referred to, unto my said son John E. Thompson during his life, and after his death in fee to his children, Marguerite Thompson, Pauline Britton, wife of Albert B. Britton, Audrey Thompson, Hannah Thompson and Thelma Thompson, and to such other children of his body which may be born to him, share and share alike, but should any of said children die without issue, then the share of such child or children so dying without issue is hereby devised in fee to the survivor or survivors of such child or children of my said son, John E. Thompson. Now, should all the children now born to my said son John E. Thompson, or which may hereafter be born to him, die without issue, then the fee herein devised to said children is hereby devised to my said son John E. Thompson, and I do hereby ratify and confirm my said original will dated on said 31st day of January, A.D. 1912, and herein first above referred to in every other respect.” (Emphasis supplied.)

Subsequently, Hannah Thompson executed a second and third codicil; in one she explained that portions of the original 968 acres had been sold, leaving a total of 650.95 acres. The other codicil is not material to this appeal. Upon grandmother Hannah Thompson’s death in 1929, her will including all three codicils were admitted to probate. On her death Hannah Thompson owned the 650.95 acres in question. She was survived by her son John E. Thompson and by his five daughters, Marguerite, Audrey, and Hannah (the three plaintiffs herein), and by Thelma (now deceased, but here represented by inter-venor), and by Pauline.

John E. Thompson, son of Hannah Thompson and father of the five daughters named in her will, died in 1938. He was survived by all of his five daughters. He never had any other children nor did he ever adopt any other children. One daughter, Thelma Thompson Davis Barter, died in 1958. As appellant she is represented herein by The United States National Bank of Galveston, executor, as intervenor herein. Thelma was survived by her daughter Carla Nan Davis Brooks.

Pauline died in 1963 without issue and without adopting any children. In her will she left her residuary estate, including her undivided one-fifth interest in the 650.95 acres to her husband Gus E. Brown, Jr. Gus E. Brown, Jr. was the original named defendant in this case; however, he died in 1965 after the hearing on the motions for summary judgment, but before judgment was entered. In his will Gus E. Brown, Jr. left his residuary estate, including his interest in the disputed 650.95 acres to Joe Brown and Carla Nan Davis Brooks, the great granddaughter of Hannah Thompson, being the daughter of Thelma Thompson Davis Barter. Joe Brown and Carla Nan Davis Brooks being the devisees of Gus E. Brown, who was the husband and devisee under the will of Pauline, the sister of appellants, are the appellees herein.

All of the parties to the appeal agree that the language in the clause of the will in question effectively creates a life estate in John E. Thompson with a vested remainder of his five named children then in being, subject to the diminution of the remainders by the birth of additional children of John E. Thompson. It is appellants’ contention that “die without issue” means at any time; where John E. Thompson’s children received the land in fee such language creates a vested base or determinable fee subject to being divested only on the occurrence of a condition subsequent, that is upon John E. Thompson’s children’s death without issue at any time. Appellees, on the other hand, contend that “die without issue” refers to the time of the death of the testatrix or at the very latest at the time of the death of the life tenant. One of the most fundamental principles governing construction of wills is that every provision of the will must be considered to ascertain the true testamentary intent and that any particular language must yield to the manifest overall intention. Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943, at 946 (1958); McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887). In considering every provision of the will each clause thereof must be construed so as to harmonize with all other clauses in the light of the circumstances of their formation. Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954).

The questioned provision contained in Hannah Thompson’s codicil to her will gives the land to her son “during his life, and after his death in fee to his children * * * ” naming them. This in our opinion evidences an intent for the land to vest indefeasably upon the death of John E. Thompson. The provision in the codicil further states that should he have other children than those named, they will share and share alike with the named children “but should any of said children die without issue, then the share of such child or children so dying without issue is hereby devised in fee to the survivor or survivors of such child or children of my said son, John E. Thompson.” We construe this as being a further provision to take. into account events that might take place during the lifetime of John E. Thompson. This intent of the testatrix is made clear by the following provision in the codicil which says: “Now, should all the children now born to my said son John E. Thompson, or which may hereafter be born to him, die without issue, then the fee herein devised to said children is hereby devised to my said son John E. Thompson. * * * ” It is evident to us that in the event that there was a catastrophe and all the children died without issue, then John would have had the enjoyment of the land in fee rather than the life estate. In the original will, the son John was to have the land in question in fee simple absolute. In the codicil the testatrix recognized this fee but conditionally revoked such provision of her original will and created the life estate instead with the remainder in her grandchildren. Following the particular provision in the codicil that in the event that all of the children should “die without issue” then son John was to have the fee title, she reconfirms and ratifies her original will “in every other respect”, which would have given him the present enjoyment of the fee simple title.

A reading of the entire will including the three codicils does not indicate in any way that the testatrix desired to place any conditions whatever on her advancements to her other children or to those receiving her testamentary gifts. She did not intend to restrict her devises once the property was in the hands of the beneficiaries. There was no intent in the will to keep the estate in the hands of her blood descendants. The original will, for instance, recognized that she had made advancements-to her children (sisters of John E. Thompson) some of whom were married, with full power of disposition. This was done at a time when the advancements were subject to the sole control of the testatrix’s daughters’ husbands. In the testatrix’s will she specifically devised her “homestead tract of land” as well as other properties outright to a particular married daughter,, and then in her third codicil she devised her homestead to her son’s wife outright in lieu of the previous devise made of such-property in her second codicil to her own daughter. We believe that a testamentary-intent can be gleaned from the overall intention of the testatrix in light of the circumstances, that evidences an early vesting of the bounty of the testatrix’s estate in her beneficiaries, surely no later than upon the death of her son John E. Thompson. It has almost been universally held that vesting at the earliest possible time is favored by the law. Chadwick v. Bristow,. 146 Tex. 481, 208 S.W.2d 888 (1948). This intent is further strengthened by the physical facts that existed at the time that the testatrix made her will. The testatrix’s son John had five daughters, only one of whom was married, and this daughter did not have issue born at the time of the making of the will. It would be natural that the final vesting of the estate of the granddaughters-would follow the life estate in her (Hannah Thompson’s) son, with the provision that if one of such granddaughters died without issue her share would go to the other granddaughters.

We hold that the intent of the testatrix is expressed throughout the will and the codicils giving rise to the vesting of the estate in the five children of John E. Thompson absolute upon his death.

The appellant contends that the term “die without issue” is ambiguous and that we should construe it to mean “at any time”. Rules of construction are resorted to by the courts only when the will itself does not disclose the testamentary intent. Johnson v. Moore, 223 S.W.2d 325 (Tex.Civ.App. — Austin 1949, writ ref’d). If it became necessary to resort to a rule of construction where the intention of the testatrix does not otherwise clearly appear from the contents of the will, we find that “die without issue” has been resolved by the Commission of Appeals in the case of Flores v. De Garza, 44 S.W.2d 909 (Tex.Com.App. 1932). In the Flores case the will provided as follows:

“3rd. I give and bequeath to my beloved wife, Leonarda Benavides Cuellar all my property, * * * to have and to hold during her natural life, and at her death to be equally divided between Filemon Flores * * * and Eulalia Dominguez * *
4th. In case either of the beneficiaries should die without issue, then the whole of the estate shall go to the survivor or his or her issue.” (44 S.W.2d at 910) (Emphasis supplied.)

In this case the court said:

“ * * * They (the plaintiffs in error and the appellants in this case) insist that the provision contained in the fourth paragraph of the will has effect to convert the estate acquired by Eulalia under the will into a qualified fee, which is determinable upon the contingency of her dying without issue, regardless of when the latter event occurs. We do not think that the will should be so interpreted. By paragraph three, the wife of the testator was given a life estate in the testator’s property, with remainder to Eulalia and Filemon. This disposition of the estate in remainder was qualified by the provision contained in paragraph four to the effect that, if either Eulalia or Filemon ‘should die without issue, the whole estate shall go to the survivor or his or her issue.’ The rule of construction is well established that a provision of a will which provides, with respect to an estate in remainder, for a devise over to another if the remainder-man should die without issue, is to be taken as referring to the remainderman’s death prior to the termination of the intervening estate, unless the language of the will show a different intent. (Citing numerous authorities.) (Parenthesis supplied.)
“Nothing is to be found in the will under consideration to show that the testator intended paragraph four of his will to refer to the death of either of his foster children after the termination of the life estate of his wife.” (44 S.W.2d at 910-911).

We find that the law in the majority of other jurisdictions conforms to the Texas law as announced in the Flores case above cited. In 3 Restatement, Property, § 269 (1940) the rule is stated as follows;

“When property is limited by an otherwise effective conveyance ‘to B for life (or years), remainder to C and his heirs, but if C dies without issue, then to D,’ or by other words of similar import, then, unless a contrary intent of the conveyor is found from additional language or circumstances, the interest of D can become a present interest if, but only if, C dies at or before the time of the termination of the interest of B in accordance with the terms of the limitation and is unsurvived by issue at the time of his death.” See also 96 C.J.S. Wills § 724 d(2), pp. 113-114.

We therefore hold when every provision of the will and codicil have been considered, the true testamentary intent reveals that the estate of Hannah Thompson vested absolute in the daughters of John E. Thompson upon his death. If the will when fairly construed left the question of vesting in doubt, the law favors vesting of the title at the earliest possible moment. Unless the language of the will showed- a different intent, the rule of construction is well established that a provision of a will which provides, with respect to an estate in remainder, for a devise over to another if the remainderman should die without issue, is to be taken as referring to the remainderman’s death prior to the termination of the intervening estate. Flores v. De Garza, supra.

Judgment of the trial court is affirmed.

GREEN, C. J., not participating.

      I. First husband of Pauline Thompson; her second husband was Gus E. Brown, Jr., original defendant herein.

      . Oarla Nan Davis Brooks is one of the appellees herein because of a special devise in Gus E. Brown, Jr.’s’ will and not by any intestate inheritance.

      . Prior to 1913 the law confided to the husband the management of all the property including the wife’s separate prop-416 S.W.2d — 39½ erty. 13 Vernon’s Annotated Civil Statutes, 1, 39 (1960).


author: SELLERS, Justice.

text:
    Robert H. HUGHES, Appellant, v. The ATLANTIC REFINING COMPANY et al., Appellees.
    No. 289.
    Court of Civil Appeals of Texas. Tyler.
    June 1, 1967.
    Rehearing Denied June 29, 1967.
    Holloway & Hunt, Pat S. Holloway, Dallas, B. R. Reeves, Palestine, Tex., Robert H. Hughes, Dallas, for appellant.
    Walter B. Morgan and Dillard Baker, Houston, for appellee, Humble Oil & Refining Co.
    George K. Gilbert, Cecil C. Cammack, George Conger, Bartlesville, Okl., Spruiell, Lowry, Potter, Lasater & Guinn, Charles F. Potter, Tyler, for appellee Cities Service Oil Co.
    Ramey, Brelsford, Flock & Devereaux, Tom B. Ramey, Jr., and Frank L. McClen-don, Tyler, for appellees, The Atlantic Refining Co. and Amerada Petroleum Corp.

      Shank, Irwin, Conant & Williamson, Ralph B. Shank, Dallas, for appellee Hunt Petroleum Corp.
   SELLERS, Justice.

Robert H. Hughes, appellant, filed his application with the County Surveyor of Henderson County for the purpose of establishing that the lands described in said application were vacant lands, this application being provided for in Article 5421c. Vernon’s Ann.Tex.St. Section 6(c) and (d) of this article provides:

“(c) Any applicant who claims that a vacancy exists and desires to lease or purchase same shall file in duplicate with the County Surveyor of the county in which any part of the land is situated a written application to purchase or lease, describing the land claimed to be a vacancy, and stating that he desires to purchase or lease same under the provisions of this Act. The application shall also state the names and addresses of all owners or claimants of land or any interest therein and of leases of any character thereon, adjoining, overlapping, or including the land claimed to be vacant, so far as the same may be ascertained from the records of the General Land Office, and of the office of the County Clerk of the county in which the land is located and from the tax rolls of such county. The application shall also state the names and addresses of all persons who, from facts known to the applicant, assert any right to said alleged vacant land, and same shall be sworn to and shall state the applicant knows of no other claimants than those listed.
«* * *
“Upon filing of any such application with the Commissioner and upon the making of the required deposit as provided for herein, the Commissioner shall forthwith cause a notice of intention to survey to be mailed to all persons named in the application as interested persons, and at the addresses given therein, and to the Attorney General of Texas. The notices shall be deposited in the Post Office at Austin, Texas, at least ten (10) days prior to the date fixed for the beginning of such survey.
“The Commissioner shall appoint a surveyor to make a survey in accordance with the notice. Such surveyor shall be a surveyor licensed by the State, or the County Surveyor of the County in which the land or a part thereof is situated. The fees and expenses to be paid for such work shall be such as may be fixed by law, or, if not so fixed, then such as the Commissioner and the surveyor may agree upon, but not in excess of such- as may be reasonable for the work performed, all of which shall be paid by applicant.
“A written report of the survey with field notes describing the land and the lines and corners so surveyed together with a plat showing the results of such survey shall be filed in the General Land Office within one hundred and twenty (120) days from the filing of the application, unless the time be extended by the Commissioner for good cause shown, which shall be stated in writing and filed as a part of the record of the proceedings, but such extension shall not exceed sixty (60) days. The report shall state the names and the Post-Office addresses of all persons in possession of the land described in the application, and of all persons found by the surveyor to have or claim any interest therein. Any interested party may at his own expense cause any surveying to be done as he deems desirable.
“ * * *
“Within sixty (60) days after the surveyor has made his report as provided herein, a hearing may be held before the Commissioner on the date fixed in a notice which he shall give to all persons thought to be interested parties and to all persons shown by the record of the proceeding to be interested parties, including the Attorney General, to determine whether there is a vacancy. Such notice shall he deposited in the Post Office at Austin, at least ten (10) days prior to the date fixed for such hearing. At the hearing, the State and each interested party, whether or not he received notice, shall have a right to be heard.
“(d) If the Commissioner should decide that the area so alleged to be a vacancy is not vacant, then the Commissioner shall so endorse said application and file it with his finding, and shall promptly notify the applicant of his finding by registered mail, and shall file all reports and papers received in connection with said application, and then shall, take no further steps with respect to same unless the existence of the alleged vacant area shall have been determined by a Court of competent jurisdiction. Thereupon, the applicant’s application and all preference rights acquired thereby, to buy, or lease, such alleged vacancy shall become null and void, unless within a period of ninety (90) days after the mailing of such notice the applicant shall file suit in the District Court of the county wherein any part of such land is located, for the purpose of litigating the question of the existence of a vacant unsurveyed area.”

In compliance with this statute, the appellant’s application named some fifty individuals and corporations whose title would be affected by the establishment of the alleged vacancy. No question is made upon this appeal that the Land Commissioner did not properly comply with his duties in connection with the application by causing all parties to be notified and a survey had by a competent surveyor, the report of the surveyor having been made, and all parties notified by the Commissioner with their right to be heard. The Commisioner found on a hearing that no vacancy existed and so notified appellant or the applicant at the time ⅛⅞ decision was made. It will be observed that the decision of the Commissioner denying the vacancy to exist has the effect under the statute of denying all rights of the appellant or applicant as null and void unless the appellant or applicant, within a period of ninety (90) days after the notice of the Commissioner of his decision to appellant, shall file suit in the District Court of the County wherein some part of the land is located for the purpose of litigating the question of the existence of a vacant unsurveyed area.

The appellant filed his suit in the District Court of Henderson County on the 86th day of the 90 days allowed, describing the alleged vacant area as bound by three original surveys, naming them and by naming as parties defendant, the following:

(1) The Atlantic Refining Company
(2) Humble Oil & Refining Company
(3) Cities Service Petroleum Company
(4) Amerada Petroleum Corporation
(5) Hunt Petroleum Company
(6) Josie E. Evans and husband, T. D. Evans
(7) William E. Bruton
(8) Mrs. Zenia Miller
(9) Jerry Sadler as Commissioner of the General Land Office of the State of Texas
(10) The unknown heirs, the unknown stockholders and the unknown beneficial interest holders under any of the above persons or corporations.

Appellant then alleged that the above persons and corporations, together with others who claim or assert some right or interest in the land involved in this suit, constitute a class so numerous as to make it impractical to bring them all before the Court, and Appellant purported to sue the above persons and corporations as a class under Rule 42(a) of the Texas Rules of Civil Procedure as representing all persons asserting or claiming any right or interest in the land claimed to be a vacancy.

The Attorney General duly intervened in behalf of the State and the Land Commissioner asking to be notified of any hearings and the date set for trial in order that the interest of the State of Texas might be protected. This intervenor did not plead further.

The Atlantic Refining Company and other appellées filed in the district court pleas to the jurisdiction and in bar of the suit for the reason that all necessary parties were not named in the petition before the Court. The trial court, after hearing said pleas, sustained the same and dismissed the case for want of necessary parties to the suit. From this ruling of the Court, the appellant has duly prosecuted this appeal.

It is appellant’s contention on this appeal that the suit was properly brought against all of the parties named in the application before the Land Commissioner as a class action under Rule 42(a) of the Rules of Civil Procedure of Texas.

It would seem to be settled by the holding in the case of Elms v. Giles, Tex.Civ.App., 173 S.W.2d 264, approved by the Supreme Court, State v. Stanolind Oil & Gas Co., 141 Tex. 446, 174 S.W.2d 588, that all parties to an application for a vacancy filed in the Land Office and a hearing there had are all necessary parties to the suit by an applicant to establish the vacancy in court, that the trial court in that case was correct in dismissing the same for lack of necessary parties. Appellant does not seem to take issue with this holding.

It is appellant’s contention that all parties named in the application before the Land Commissioner were parties to appellant’s suit because of Rule 42(a) above referred to. There were, however, some 42 parties named in the application before the Land Commissioner who were not named in appellant’s petition in the District Court.

Appellant, in his argument, pointed out that the Rules of Civil Procedure to govern the courts of Texas had not been enacted at the time the Elms case was decided and therefore the question of appellant’s right to a class action was not there decided. However, this court is of the opinion that the question of Rule 42(a) of the Rules of Civil Procedure relied upon by appellant has, since the Elms case, been decided against appellant’s contention, and that appellant’s sole right to file and maintain this suit to establish a vacancy is by virtue of Article 5421c, Section 6(d), and without said statute appellant could not have gone to Court.

The right of a party to rely upon the Rules of Civil Procedure in a case where the right to maintain the suit was solely by force of a statute was before the court in the case of Standard Oil Company of Texas v. Railroad Commission of Texas et al., Tex.Civ.App., 215 S.W.2d 633, and it was there held that the Rules of Civil Procedure have no application in such cases:

“The suit authorized by Art. 6049c, Sec. 8, is a special proceeding created for the purpose of enforcing ‘a right which exists only by operation of statute’. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364,367 and 372. Hence the rules governing civil actions generally apply only in so far as they are not in derogation of the purposes and objectives of the statute. * * * ”

We are of the opinion that to allow Rule 42(a) to govern in this case would be in derogation of the law as announced in the Elms case that all parties named in the application for the vacancy in the Land Office are necessary parties to the suit to establish a vacancy.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    LOCHWOOD MEADOWS, INC., Appellant, v. Ernest W. BUCK, Jr., Appellee.
    No. 16919.
    Court of Civil Appeals of Texas. Dallas.
    May 26, 1967.
    Bill Womble of Blanchette, Smith & Shelton, Dallas, for appellant.
    C. A. Mattay, Dallas, for appellee.
   DIXON, Chief Justice.

This case involves the enforcement of a deed restriction.

Appellant Lochwood Meadows, Inc. is the developer of property known as Lochwood Meadows Addition, First Installment, an addition to the City of Dallas, duly shown by map recorded in the Deed Records of Dallas County.

One of the deed restrictions is as follows: “In case of corner lots, no fence or wall shall be erected nearer the side street than the building line and no fence or wall on any lot shall exceed seven (7) feet in height.”

Appellee Ernest W. Buck, Jr., owner of Lot 1, Block 8/7691 of the addition, built a wooden fence in violation of the above restriction. Next to the fence he planted a ligustrum hedge which followed the perimeter of the wooden fence on the inside.

Appellant brought suit to restrain appellee “from building, operating and/or maintaining any fence in violation of the aforementioned deed restrictions and to dismantle or disassemble the fence which has been built by Defendant in violation of the aforementioned deed restrictions * *

At the conclusion of a nonjury trial the trial court rendered judgment permanently enjoining appellee from maintaining any fence or wall in violation of the deed restriction. However, the court expressly refused to enjoin appellee from planting or allowing the hedge to grow or exist.

Appellee in obedience to the court’s judgment has removed the wooden fence, but has continued to maintain the hedge.

Lochwood Meadows has appealed claiming that the hedge is a fence and the court should have required removal of the hedge as well as the wooden fence.

In support of this view appellant presents two points on appeal: that the court erred (1) in denying the injunction with reference to the hedge — the hedge according to appellant is a fence or wall within the meaning of the deed restriction; and (2) in concluding that the deed restriction is uncertain — the restriction according to appellant clearly and succinctly prohibits the erection of a fence or wall nearer the side street than the building line on corner lots.

Appellant has cited Kimball v. Carter, 95 Va. 77, 27 S.E. 823, 825 (1897), which ■quotes dictionary definitions in which it is said in substance that a fence is designed as an enclosure about a field or other space intended to prevent intrusion from without or straying from within — “a line of obstacle, as a frame of wood, a wall, hedge * * Appellant also cites Porter v. Aldrich, 39 Vt. 326 and Burch v. State, 67 S.W. 500 (Tex.Cr.App. 1902). In the latter case it is said “Webster defines a fence to be 'to inclose with a hedge, a wall, or anything that prevents the escape or entering of •cattle; to secure by an inclosure.’ ”

We see no merit in either of appellant’s points on appeal. In the first place the hedge here in question is not itself a complete enclosure. Where the hedge fails to meet there is space large enough to permit the entry or escape of cattle, let alone smaller animals.

The Legislature of Texas in Art. 1353, Texas Penal Code, says: “A fence within the meaning hereof is any structure of wood, wire, or of both, or of any other material intended to prevent the passage of cattle, horses, mules, asses, sheep, goats or hogs * *

Art. 1372, P.C. says, “An ‘insufficient fence,’ means a fence * * * with openings, or crevices in some part thereof sufficiently large for the passage of the .animal * *

In 25 Tex.Jur.2d 297 it is said, “ * * * Ledges * * * do not constitute a fence,” citing Brown v. Johnson, 73 S.W. 49 (Tex.Civ.App., San Antonio 1903, writ dism’d w.o.j.), in which it was held that a bois d’arc Ledge was not a fence.

If there is any uncertainty in the restriction it comes only if we try to include a “hedge” within the meaning of a “fence” as that word is used in the deed restriction. Then we are confronted with the rule of construction that uncertainties must be resolved against the author of a provision— in this case appellant. Also the rule that uncertainties in instruments concerning land which undertake to restrain or limit a grantee’s free use of his property must be construed in favor of the grantee. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Com.App. 1928); Settegast v. Foley Bros., 114 Tex. 452, 270 S.W. 1014 (Tex.Com.App. 1925, opinion adopted) ; Ragland v. Overton, 44 S.W.2d 768, 771 (Tex.Civ.App., Amarillo 1932, no writ).

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed..