author: ARCHER, Chief Justice. HUGHES, Justice

text:
    The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Woodie Mae MORRIS, Appellee.
    No. 11388.
    Court of Civil Appeals of Texas. Austin.
    April 20, 1966.
    Rehearing Denied May 4, 1966.

      Blanks, Thigpin, Logan, Steib & Lewis, Curtis F. Steib, San Angelo, for appellant.
    Wilson, Logan, Lear & Massey, Tom C. Massey, San Angelo, for appellee.
   ARCHER, Chief Justice.

This is an appeal from the judgment of the District Court, based on findings of a jury, in favor of appellee for $2250.00 for benefits due from the accidental death of the named insured, $270.00 statutory penalty of 12% of the principal amount and $800.00 attorney’s fee, with interest at the rate of 6% and costs.

The policy was written upon the life of L. Dow Morris, husband of plaintiff Wood-ie Mae Morris. The policy provided for the payment of a face amount of $750.00 with no suicide exclusions, and which had been paid prior to this suit.

The controversy in this case centers around the payment of additional benefits equal to three times the face amount of the policy if the death of the deceased resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means. These accidental triple indemnity payments are subject to a suicide exclusion.

The case was submitted to a jury on special issues who found that the death of the deceased resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, and that the death was not caused solely by cyanide poisoning, and that cyanide poisoning did not contribute to the death.

Appellant’s position is that the cause of death was not established by competent evidence.

The appeal is based on seventeen points but may be consolidated into two divisions. The first division is directed to the sufficiency of the plaintiff’s pleadings to give fair notice as to the cause of the death of Mr. Morris.

Paragraph five of the pleadings is as follows:

“5. Shortly after noon on October 27, 1963, L. Dow Morris was riding as a passenger in an automobile proceeding east on Beauregard Avenue in the City of San Angelo. At the intersection of Beauregard and Oakes Street, the Morris automobile was struck by a truck traveling North on Oakes Street. In the grinding accidental collision between the truck and the automobile in which L. Dow Morris was riding, L. Dow Morris was thrown about the interior of the automobile, striking his head, chest and other parts of his body on the hard objects of the automobile, causing L. Dow Morris to suffer certain physical injuries, specifically a concussion of the brain, multiple bruises, contusions and lacerations, damaging and injuring the bones, muscles, ligaments, tendons, nerves, blood vessels and soft tissues of his head, neck and chest, all of which severally or in concurrence proximately and directly caused his resulting death, which death occurred in the emergency room of the Shannon Hospital at 1:45 p. m. that day.”

Paragraph six is as follows:

“6. Plaintiff would further show that the injuries described in Paragraph Five (5) above directly and proximately and independently of all other causes, caused the death of L. Dow Morris, which death resulted from the bodily injuries effected solely through the accidental collision described before, and which death was caused solely by external, violent and accidental means.”

We believe that the pleading does give defendant a fair notice as to the cause of death of Mr. Morris.

The defendant knew of the accident and the death of Morris on the day following and at a time when the body had not been placed in the casket, and defendant’s agent had already picked up the policy.

The trial court’s ruling that the pleadings were sufficient will not be disturbed absent a showing of abuse. A large measure of discretion is lodged in the trial court in passing on the exceptions to the pleadings. Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, er. ref.

Appellant’s remaining points may be considered as another division and disposed of together, since all the points are directed to the sufficiency of the evidence to support the findings of the jury, and the admission of the testimony of Dr. Robert Martinez that the accident was the cause of the death of Mr. Morris, over defendant’s objection that the witness did not have adequate factual basis to form an opinion either from actual observation and knowledge or from hypothetical questions based upon other evidence in the record.

The testimony of Dr. Martinez, in part, is:

Did you receive a call that date to the Emergency Room? a
Yes, sir, I did. S>
Whom did you administer to at the Emergency Room of the Shannon? ¡O
Mr. Dow Morris.
Mr. Dow Morris. Was he the only one?
No, sir. There were two others. >
And you administered to them too? ¡O
Yes, sir. >
Was one of them Mrs. Morris? ©
Yes, sir. ¡>
Q Now, what we are interested in, Dr. Martinez, is the condition'of Mr. Dow Morris at the time you saw him there in the Emergency Room.
A Well, as I walked into the Emergency Room there was a very strong odor of cyanide. The nurse told me that he had taken cyanide poison; and I walked up to him and I was surprised to see him alive because of the strong odor of cyanide; and he was breathing, he had a pulse of 80, which was thready, and had no blood pressure. So immediately I started intravenous fluids to bring his blood pressure back up; however, he expired about five minutes after we started the fluids on him. I attempted external cardiac massage for a few minutes, and that did not help, and finally pronounced him dead.
Q You say he expired five minutes, about five minutes after you started the intravenous fluids?
A Yes, sir.
⅝ ⅝ ⅜ ⅝ ijs ¾?
Q What about his appearance, Dr. Martinez ?
A Well, he was quite pale all the time I was there, and when he expired he was very pale. He had several superficial lacerations about his face and had a bruise over his forehead.
Q What part of the forehead, sir?
A Over the—
Q Just show with your hand.
A More or less over the middle and right side (indicating).
Q A bruise?
A Yes, sir.
Q Was this rather pronounced or was it just a slight bruise?
A Oh, it wasn’t a severe bruise.
* * * * * *
Did he have cuts over his neck, on his throat? Ol
Yes, sir, on the sides.
On the sides of the throat?
Yes, sir.
Was the midportion of his face bruised or lacerated?
The what? c
The midportion of his face, Doctor, was it— a
I don’t recall. I just recall the bruise on his forehead.
Bruise on his forehead and lacerations, I believe you called it, about his face and his throat ? JO
Yes, sir. >
Both sides of his neck? lO
Yes, sir. >
Were you called upon at that time to assign a cause of death? O
Yes, sir, I was. >
And did you assign a cause of death ? ©
Yes, sir; I put down that it was probably cyanide poisoning. c
Probably cyanide poisoning? iO
Yes, sir. >
Have you changed your mind since then? ©
Yes, sir. >
What is the basis for your change of mind, Dr. Martinez ? ©
Well, after I inquired further into cyanide poisoning, I read several textbooks on the subject, and they all said that people who took cyanide in a lethal dose usually died in cya-nosis, and they usually died within a few seconds after they took it; and he was quite pale and he lived at least — well, I know he lived at least twenty minutes.
Q Now, you used the term, Dr. Martinez, ‘cyanosis.’ Would you explain to me and the jury what that means ?
A Cyanosis means a bluish color of the skin, due to lack of oxygen.
Q How does this come about?
A Well, cyanosis interferes with the passage of oxygen into the body tissues — I mean cyanide interferes with the passage of oxygen into the body tissues, since the body tissues don’t get oxygen they turn blue.
Q Is this true how cyanide poison reacts in the blood?
A Yes, sir.
Q Now, is this generally the case that a person dying of a lethal dose of cyanide poisoning will have this bluish color?
A Yes, sir.
Q Or to put it technically be cyanotic?
A Yes, sir.
* ⅜ * ⅜ ⅜
Q You think, then, that after having lived that long, what you just stated, you think the chances are very little that he died of cyanide poisoning if he lived that long?
A Yes, sir.
Q In your opinion, from what you recall of the Emergency Room and L. Dow Morris on that October date, that he had received sufficient injuries — that he evidenced sufficient injuries to have caused his death?
A Yes, sir.”

Dr. Martinez was carefully and extensively examined on cross-examination as to the cause of death, and testified that:

“A From a blunt blow to his forehead.
Q He died from a blunt blow to his forehead. Now what makes you say that?
A Because of the bruise he had on his forehead.
Q Did you examine him? Can you say whether his skull was fractured?
A No, sir.
Q Can you say now whether he had any brain damage?
A No, sir.
* * * * * *
Q Dr. Martinez, you testified that L. Dow Morris was in shock, obviously in shock?
A Yes, sir.
Q Could this have been caused by the accident ?
A Yes, sir.
Q Very likely caused by the accident?
A Yes, sir.
sjs ⅝ ⅜ * ⅝ ⅝
Q At that time you had never had a cyanide poisoning case?
A No, sir.
Q This was your first one?
A Yes, sir.
Q And you did what you absolutely considered to be to the patient’s best interests ?
A Yes, sir.
Q And with the time involved, that is five minutes, as you testified a while ago, from the time you got there until the time he expired, you would do the same thing, you would treat him the same way ?
A Yes, sir.
Q This is because of his shock, primarily ?
A Yes, sir.
Q And it is your opinion that his death was not caused by cyanide poisoning?
A Yes, sir.
Q And it is your opinion that his death was caused by the injury he received in the collision he was in ?
A. Yes, sir.”

As concerns the collision Edgar Lee White testified he saw a car run a red light driven by a lady traveling rather fast, and saw in the car a man sitting leaning on the post in the front part of the car, at the window, and that he followed the car and saw the wreck occur.

No details are given as to the wreck or of others except that Mrs. Morris was driving one car and Mr. Morris was in the car. Mrs. Morris received extensive injuries and was hospitalized.

We insert herein a picture of the car driven by Mrs. Morris, taken after the collision, and from its demolished condition the impact must have been very great.

Mrs. Linda Willbern, a daughter of the deceased, testified that she viewed the body of her father at the funeral home, and saw:

“A Well, he had, on the right side of his head and over his eye it looked like a long gash, the brow was protruded, was blue and discolored around his cheek, and then I noticed a gash that hadn’t been covered up, and so I bent forward and I could see the other side of his face, it was also bruised and cut, all cut down into his neck; and then his hands were the only things that were visible other than that and they were both very bruised.”

L. D. Morris, a son of the deceased, testified that he heard of the accident on the radio and left to look for his folks; that he saw his father at the funeral home the next day, and saw bruises on his face, one eye, his nose was badly swollen and a cut across the front of his neck.

Dr. Lloyd R. Hershberger, a physician, specializing in pathology, which deals with the causes of disease, and the changes that occur in the body because of disease, testified that cyanide was one of the most lethal, deadly poisons and can be swallowed, inhaled and absorbed in the stomach lining, affects the body by a paralysis on the respiratory center, and the body lacks oxygen, and the person becomes limp and unconsciousness follows.

In answer to a hypothetical question assuming certain facts Dr. Hershberger testified:

“Q What is your opinion, Doctor?
A Now, based on the odor, based on the color, based on the pulse and respiration, and based on the lack of bleeding, I would have to consider cyanide as my first choice.
Q Now, Doctor, from these facts as I have given them to you, would it be possible for you to express an opinion that is medically fairly accurate about the accident, without you knowing any more than I have told you here, is it possible for you to express an opinion within a medical degree of certainty whether or not this accident could have been the cause of death, on the basis of these particular facts?
A Based on the facts, you mentioned a bruise, so that the patient was still living at the time of the accident, so I know that he was still living at that time; but all you have mentioned to me was superficial lacerations as far as injury is concerned, I would not be justified on those two findings to consider that this was a death due to the automobile accident.
⅝ ⅜ ⅜ ⅜ ⅜ ⅝
Q Under these circumstances, Doctor, in your opinion and experience is it possible for anybody to say that the accident, based on these facts, was the sole and exclusive cause of this person’s death?
A No. You can not say that for this reason: We have got these other things that you have mentioned to me, the odor, and so forth, I have to include them, so I would not be able to say that the accident is the sole cause of death.”

Dr. Raleigh F. Trotter, a physician, specializing in pathology, testified in answer to a hypothetical question:

“Q From the situation that I have described to you, would you say with any degree of certainty whether the odor came from poison ingested or poison spilled upon his shirt?
A I couldn’t state whether it came from ingestion or from his clothing, no.
Q Dr. Trotter, with regard to the lapse of time after the ingestion of poison, of the ingestion of cyanide poison, the lapse of time between ingestion and death, what is the customary lapse of time ? Is there such a thing as customary lapse of time between taking in a lethal dose and death ?
A There is no customary time. Cyanide has been known for many years to be one of the most rapid, varying from just a few minutes, and the longer times are rare cases, they have been reported up to three hours, but the longer ones are rare.”

We believe that the testimony of Dr. Martinez was properly admitted because he based his opinion upon his examination, observations and facts he had been told existed.

We believe that the testimony supports the jury’s finding that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.

The jury could draw all reasonable inferences from th'e facts before it and on the evidence, and could, as it did, reasonably conclude that the insured sustained in the collision injuries of such a nature as to have caused his death.

We do not believe that the findings of the jury are contrary to the overwhelming weight of the evidence in the record, but such jury findings are reasonably supported by the evidence.

We have herein set out the evidence and there is no need to restate such. Millers’ Indemnity Underwriters v. Schrieber et al., Tex.Civ.App., 240 S.W. 963, er. ref.; Fry v. Dixie Motor Coach Corporation, 142 Tex. 589, 180 S.W.2d 135; National Life and Accident Insurance Company v. Brogdon, Tex.Civ.App., 322 S.W.2d 403, n. w. h.

We, as a reviewing Court, must and do view the evidence in support of the judgment.

Appellant cites a number of cases such as Gipson v. Aetna Insurance Company, Tex.Civ.App., 373 S.W.2d 311, n. w. h.

The presumption of law against suicide supports the finding of accidental death. Great Southern Life Ins. Co. v. Watson, Tex.Civ.App., 343 S.W.2d 921, er. ref., n. r. e.

In its reply brief appellant cites Mutual Benefit Health & Accident Association v. Hudman, 398 S.W.2d 110, Sup.Ct., as being determinative of this appeal.

A distinction may be made in the instant case and the Hudman case because in the Hudman case the evidence showed that preexisting serious heart disease and overexertion concurred to cause the fibrillation of the insured’s heart and in turn his death.

In the instant case there is sole reliance on the accidental injuries as causing the death of Mr. Morris, not contributed to by any other cause, within the preexisting frailty or enfeeblement of the human body.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(concurring).

There is evidence in this record that Mr. Morris drank from a bottle containing liquid which smelled like cyanide. There is no evidence of the quantity of the liquid ingested.

Dr. Martinez testified that in his opinion Mr. Morris did not die of cyanide poisoning but that he died from a blunt blow on the head. The length of time which Mr. Morris lived after drinking from the bottle and the lack of cyanosis (bluish or reddish coloring of the body skin) caused Dr. Martinez to reach the conclusion that Mr. Morris did not die of poisoning. Dr. Martinez testified that the poisoning contributed to his death “because it might have weakened his condition.”

Dr. R. F. Trotter, a recognized pathologist in San Angelo, answering a hypothetical question embracing facts proved, as to the cause of death of Mr. Morris, testified: “A suspicion would have to be cyanide poisoning because of the odor. Having very little to go on, the premise would have to be that until proven otherwise; however, in the absence of cyanosis I could not state that the death was from cyanide.”

Dr. Trotter testified that cyanide is a very rapid acting poisoning. He also testified :

“Q Now, you stated a few moments ago, Dr. Trotter, that the cyanosis is an important factor in this matter of cyanide poisoning. How important is the time factor, sir ?
A In any respiratory distress, the longer that it goes on the more intense you might consider the cyanosis to be.
Q Do you mean by that that you would expect a person to be more cyanotic twenty minutes after he ingested poison, assuming he is still alive, to be more cyanotic then than he was ten minutes or five minutes after he took the poison ?
A Correct.
Q Now, does this cyanosis fade? Does the normal color return or does another color replace this cyanotic color, generally speaking?
A Well, the cyanosis as you observed it would only clear up if the person recovered and oxygenation became normal again. If the mucosa or internally the person was examined and it had a reddish appearance, in time they didn’t clear up he may become more brownish in appearance.
Q All right. So, are you saying, Doctor, that if a person lived for as long as 45 minutes or an hour after he took poison and got over the cy-anosis that you would expect him to recover from the effects of the poison?
A. If his cyanosis clearned I would have expected him to start oxygenating, if you want to call it that, again; yes, I would have to put it that way.”

On cross examination by appellant, Dr. Trotter testified as follows:

“Q Now, Doctor, is it your testimony that cyanosis is an indispensable element in the diagnosis of cyanide poisoning, in all cases?
A Sir, there are always exceptions in medicine.
Q I gather your answer is ‘no,’ that it is not an indispensable element in all cases?
A I am sure there will be exceptions.
Q Doctor, assuming that a patient is brought into the Shannon Emergency Room with either no blood pressure or rather low blood pressure, with a weak, thready pulse of approximately eighty, the examining physician does not know whether the pupils are dilated or contracted; the examining physician does not know what the patient’s reflexes are, whether he has any reflexes, and so forth; the examining physician at that point does not know whether the patient can raise his arms or whether the arms just flop down; the examining physician finds superficial lacerations; and assuming that the examining physician finds a bruise about the size of a half a dollar on a portion of the forehead and brow; assume further that the examining physician finds the patient breathing slow and irregular; assume that the patient is admitted to the emergency room at approximately 1:25 p. m., and assume that the patient expires about 1:45 p. m.; assume further that there is a history of an automobile accident, and there is also a history and a smell of burnt almond, that there is a history or a suspicion that this particular patient drank cyanide some, oh, let’s say some 30, 40 minutes prior to that time.
Assuming that this is all the information that the physician has. Now, from this set of facts, if this is all that is available, from this set of facts, is it medically, scientifically possible for the physician to express a medical opinion that the automobile accident was the sole cause of this person’s death?
A It could be.
Q I say, with no further facts, is it possible for the physician to express an opinion that the automobile accident is the sole cause of the patient’s death?
A Well, I certainly agree with the counsellor that that is not very many facts to go on. However, there are two factors there based upon the time on which he could make that statement, one of which, the lack of cyanosis, and one of which is the rapid pulse.
Q All right. Now, let me ask you this: Under those facts can you rule out completely that the cyanide has no contributing cause to the death?
A To be perfectly honest you could not rule out that it did not have a contributing effect.
Q In other words, you just don’t know, isn’t that right, Doctor?
A In the absence of a post mortem examination you would have to say we do not know exactly. There is a reasonable doubt.
Q Well, there is a pretty big element of doubt, just what the man died of, isn’t there Doctor?
A Yes, there is a reasonable doubt.
Q As far as that goes, he could have died of a heart attack, with these facts ?
A Correct.
Q He could have died from any number of things ?
A He could have.”

The evidence, in my opinion, heavily preponderates to the conclusion that Mr. Morris did not die of cyanide poisoning. The only contrary evidence is supplied by Dr. Lloyd R. Hershberger, who, in answering a hypothetical question containing the basic proved facts, testified that as to the cause of death of Mr. Morris, “I would have to consider cyanide as my first choice.”

Since the jury could rule poisoning out as the cause of death it could, under the testimony of Dr. Martinez, find that the death of Mr. Morris was caused by a blow on the head. It could also find that this was the sole cause of death unless the statement by Dr. Martinez that poisoning “might have weakened his condition” and hence contributed to his death precludes, as a matter of law, such finding.

Appellant strongly relies upon Hudman, cited by the Court, to sustain its position that the testimony of Dr. Martinez, in this respect, necessarily, and as a matter of law, established that the injuries received by Mr. Morris in the automobile accident were not the sole cause of his death. I do not so consider Hudman. I believe that the “weakened” condition of Mr. Morris, due to the ingestion of cyanide, was, factually at least, only a “preexisting condition or disorder” within the following language of that opinion:

“We do not hold that every preexisting frailty or enfeeblement of the human body which coexists with an accidental injury will defeat recovery under such policies as Hudman’s. To do so would defeat recovery in most instances because mere senescence makes all flesh heir to infirmity and weakness. Policies are, to use Cordozo’s phrase, issued to those who are neither ‘an Apollo or Hercules.’ Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930). Recovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury. Howe v. National Life Ins. Co., 321 Mass. 283, 72 N.E.2d 425, 170 A.L.R. 1254 (1947). In most cases, the competent evidence of qualified persons separates the real causes of death or injury from mere conditions or at least raises issues for the determination by the fact finder. 29A Am.Jur., Insurance, §§ 1211-1213; 82 A.L.R.2d 614, 623; 56 A.L.R.2d 806-808; 131 A.L.R. 266-269; 1A Appleman, Insurance Law & Practice, § 403, p. 88.”

I believe that under the evidence it was within the province of the jury to say whether the weakened condition of Mr. Morris due to the ingestion of an undetermined amount of cyanide “materially contributed” to his death.

I concur in the Court’s opinion.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    James T. CARROLL et ux., Appellants, v. ROGER LACY, INC., et al., Appellees.
    No. 195.
    Court of Civil Appeals of Texas. Tyler.
    March 31, 1966.
    Rehearing Denied April 28, 1966.

      Welby K. Parish, Lowell C. Holt, Gilmer, for appellants.
    J. T. Harris, Longview, F. L. Garrison, Gilmer, for appellees.
   DUNAGAN, Chief Justice.

This suit was instituted in the trial court by James T. Carroll, Jr. and wife, Naomi Carroll, against the appellees' to declare a lease held by the appellees, R. Lacy, Inc. and J. W. Griffith, to be terminated and prayed for judgment to remove cloud from title on their property and that they have judgment against the appellees, jointly and severally, for the recovery of title to an undivided one-fourth (⅛⅛) of the oil, gas and other minerals in and under the 94.88 acre tract of land in controversy.

The appellants further alleged in their third original amended petition:

“That subsequent to Plaintiffs’ notification to Defendant, R. Lacy, Inc., that said oil, gas, and mineral lease had terminated, said R. Lacy, Inc., its agents, servants and employees, during the month of April, 1962, over the protests of Plaintiffs, maliciously, and without any legal right or authority, and with full knowledge that it had no legal right or authority, entered upon said land and began to drill and did drill an oil well on said land; that R. Lacy & Company, Inc., also in 1962 and during the month of May, over the protests of Plaintiffs, started to drill and did drill another oil well on said land.
“That R. Lacy, Inc., in so drilling said wells, destroyed a great deal of grass and turf on the land of said Plaintiffs, and further, in the process of drilling said wells, pumped the water used for the drilling thereof from a pond used by Plaintiffs in the watering of cattle which they were pasturing on said land, and said pond was pumped completely dry. Further, Defendant, R. Lacy, Inc., its agents, servants and employees, during the drilling of said wells, left open Plaintiffs’ pasture gates, tore down the fences belonging to the Plaintiffs, and allowed the cattle owned by the Plaintiffs to get out of said pasture, and Plaintiffs, at their own expense, were required to round up said cattle, put them back in the pasture, repair said fences and gates, all of which expense Plaintiffs would not have had except for the wrongful act of R. Lacy, Inc., its agents, servants and employees, all to the plaintiffs’ damages in the amount of SEVEN THOUSAND ($7,000) DOLLARS.
“That since the malicious, unlawful and illegal drilling of the said two oil wells on Plaintiffs’ land, R. Lacy, Inc., and its assigns have wrongfully extracted oil, gas, and minerals from said lands, and have converted same to their own use and benefit to the value of approximately ONE HUNDRED THOUSAND ($100,-000) DOLLARS. * * *”

The appellants, plaintiffs in the court below, sought judgment against the appellees, jointly and severally, for the total sum of $107,000.00.

This case was tried before the court without the aid of a jury.

The court rendered judgment for the ap-pellees, finding that the oil, gas and mineral lease dated November 6, 1953, from O. H. Smith and wife, Beucie Smith, lessors, to Sol Simon, lessee, was in full force and effect and is now owned by R. Lacy, Inc. and J. W. Griffith, jointly, but found that damage in the sum of $450.00 had been done to the surface of said land by the operation of drilling of oil wells thereon and the production and marketing of oil therefrom and rendered judgment in that amount to appellants. The judgment further ordered that the appellants take nothing by their suit to cancel the oil, gas and mineral lease involved ; and it further ordered that the appellants have and recover of and from the defendant, Lyons Petroleum Company, as operator of the leasehold estate in said land, the sum of $450.00 on account of damage done to said land and the fences, grass and timber thereon.

Findings of fact and conclusions of law were prepared and filed by the trial court at the request of appellants and none of those findings of fact were challenged by appellants, nor did they request any other or further findings.

Appellees, R. Lacy, Inc. and Lyons Petroleum Company, at the outset in their brief, contend that this appeal should not be further considered by this court because: “ ‘Roger Lacy, Inc.’ was named as a defendant in Appellants’ original petition herein, but after answers had been filed stating that there was no such corporation in existence but that there was a corporation named ‘R. Lacy, Inc.’, Appellants, in their Third Amended Petition, named ‘R. Lacy, Inc.’ as a defendant, omitting ‘Roger Lacy, Inc.’, thereby dismissing ‘Roger Lacy, Inc.’ from the suit. Yet, the instrument denominated an ‘Appeal Bond’ names only ‘Roger Lacy, Inc.’ as payee therein, and, therefore, it amounts not to a bond in this case, since it fails to name any defendant as payee therein and is not payable to the Clerk of the court or any other officer of the Court. Furthermore, said ‘Appeal Bond’ bears the signatures of Welby K. Parish and Lowell C. Holt as its only sureties, and since they are the attorneys for Appellants and no showing is made of prior approval by the trial court, their signatures as sureties are prohibited by the Texas Rules of Civil Procedure, Rule 142.”

These appellees have filed no motion in this court to strike the bond and dismiss the appeal because of these alleged defects, but have presented their objection in their brief filed in this court on February 7, 1966. The transcript in this cause was filed in this court on July 23, 1965. We overrule these objections. The bond, though defective, is in fact a bond and upon timely request may have been amended. Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141, 1943 (S.Ct.); Shanklin v. Rogers, 213 S.W.2d 730 (Tex.Civ.App.) 1948, n. w. h.

The failure to include the proper obligees in the bond is not jurisdictional. Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.) 1942, writ refused, and Shanklin v. Rogers, supra.

Furthermore, it seems to be well settled when there are defects of substance or of form in an appeal bond, such defects are not jurisdictional and are waived by failure to present objections to the bond by motion within 30 days after the transcript is filed. Rules 404 and 430, T.R.C.P.; Conlee v. Burton, 188 S.W.2d 713 (Tex.Civ.App.) 1942, n. w. h.; Shanklin v. Rogers, supra; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702, 1935. See also Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101, 1939; Pfeffer v. Meissner, 286 S.W.2d 241, 251 (Tex.Civ.App.) 1955, n. r. e.; Henslee v. State of Texas and County of Dallas, 375 S.W.2d 474 (Tex.Civ.App.) 1963, writ refused, n. r. e.

Even though an attorney of record is not permitted to sign appeal bond without the consent of trial court, nevertheless it has been held in this state where counsel for appellant signed appeal bond without special leave of court, in direct violation of this rule, but appellees made no objection to the appeal bond, and more than 30 days had passed, appellees could not gain anything by filing a motion to dismiss the appeal, in view of Rule 430 and 431, making liberal provisions for the correction of records on appeal, Morton v. Morton, 286 S.W.2d 702 (Tex.Civ.App.) 1955, n. w. h., and such error, if any, may have been waived. Wilkie v. Dean Lumber Co., 289 S.W.2d 402 (Tex.Civ.App.) 1956, writ refused, n. r. e.

ON THE MERITS

The appellants by their Point of Error No. 1 contend that the oil, gas and mineral lease had terminated as a matter of law.

The trial court found and the record shows that:

“Title to land described in plaintiffs’ petition is not questioned in this action and the only title question involved herein is title to the leasehold estate in and to an undivided one-fourth of the oil, gas and other minerals in, under and that may be produced from said 96½ acres of land, more or less.
“Title to the remaining undivided three-fourths of the oil, gas and other minerals in, under, upon and/or produced from said land was not attacked and it was agreed by plaintiffs that the oil, gas and mineral leases covering such undivided three-fourths of said minerals were in full force and effect.
“Title to the surface of the land described in plaintiffs’ third amended petition and to an undivided one-fourth of the oil, gas and other minerals in, under, upon and produced from said land is vested in plaintiffs, subject to the vendor’s lien and deed of trust lien securing note executed by plaintiffs for a part of the purchase price of said land which was purchased by plaintiffs from O. H. Smith and wife, Beucie Smith.”

The evidence shows that on November 6, 1953, O. H. Smith and wife, Beucie Smith, owned the surface of the above described land in fee simple and an undivided one-fourth interest in and to the oil, gas and other minerals on, in and under the same. On the above date, O. PI. Smith and wife executed a lease covering the oil, gas and other minerals owned by them in and under the 94.88 acre tract of land in controversy for a period of ten years to Sol Simon, said lease being recorded in Volume 71, page 149 of the Oil, Gas and Lease Records of Upshur County, Texas.

The oil, gas and mineral lease above mentioned contained the following provision:

“If drilling operations are not commenced on said land on or before one year from the date hereof, this lease shall then terminate as to both parties, unless Lessee shall pay or tender to Lessor or to the credit of Lessor in First National Bank at Gilmer, (which bank is Lessor’s agent) the sum of ($25.00) Twenty Five Dollars ($25.00) (hereinafter called “rental”), which shall extend for twelve months the time within which drilling operations maybe commenced. Thereafter annually, in like manner and upon the payments or tenders, the commencement of drilling operations may be further deferred for periods of twelve months during the primary term. The payments or tenders of rental may be made by the check or draft of Lessee mailed or delivered to Lessor or to said bank, on or before such date of payment. * * * ”

The record further shows and the court so found that:

“The oil, gas and mineral lease described in plaintiffs’ said amended petition, from O. H. Smith and wife, Beucie Smith, parties lessor, to Sol Simon, lessee, dated November 6, 1953, for a primary term of ten years was admitted by plaintiffs to have been in full force and effect up to November 6, 1961, but plaintiffs assert in this cause that the lease was terminated on November 6, 1961, by reason of the alleged failure of the holder of said lease to pay or tender to plaintiffs, or to their credit in the Long-view National Bank of Longview, Texas, annual delay rental of $25.00 to keep said lease in force for one year beginning November 6, 1961.
“The oil, gas and mineral lease above described provided that annual delay rentals should be paid or tendered to lessors or for deposit to their credit in the First National Bank of Gilmer, Texas.”

On November 10, 1953, Sol Simon assigned to J. W. Griffith, the agent and vice-president of R. Lacy, Inc., an undivided one-half interest in and to the leasehold estate.

On March 8, 1962, Sol Simon assigned an undivided one-half interest in and to the leasehold estate he had acquired by virtue of oil and gas lease mentioned above to R. Lacy, Inc.

The entire annual delay rental payment called for in the lease was being paid each year by R. Lacy, Inc. for its benefit and that of J. W. Griffith.

The lease provided, among other things, the privilege of assigning the leasehold estate by either party to the lease; however, it was further provided that no change of ownership of the land or an assignment would be binding on the lessee until after lessee was furnished with a written transfer of assignment or a certified copy thereof.

On June 27, 1959, O. H. Smith and wife, Beucie Smith, conveyed by warranty deed all of their right, title and interest in and to said land, including the oil, gas and other minerals owned by them, to appellants herein, James T. Carroll, Jr. and wife, Naomi Carroll. Thereafter, the appellants furnished R. Lacy, Inc. with a certified copy of the deed from O. H. Smith and wife, to appellants.

Pursuant to the certified copy of the deed from the Smiths to the Carrolls, J. T. Harris, attorney for R. Lacy, Inc., wrote the following letter to Mr. Carroll:

“August 1960
“TEX (Upshur)
#2028-A, Smith Lease.
“Mr. James T. Carroll, Jr.
P. O. Box 72
Diana, Texas
“Dear Mr. Carroll;
“Mr. Sol Simon has handed me copy of your deed from O. H. Smith and wife, conveying 94.88 acres of land in the John Lout Survey, Upshur County, Texas. We are making notation in our file of this conveyance. Since the description contained in your deed differs to some extent from that contained in our lease, I shall appreciate it if you and Mrs. Carroll and Mr. and Mrs. Smith will sign the enclosed memorandum, as I assume that you purchased the entire tract covered by our lease. If Mr. and Mrs. Smith retained any of the acreage, please return the enclosed memorandum and advise me as to any acreage retained by them. A stamped and addressed envelope is enclosed for your convenience.
“Yours very truly
J. T. HARRIS”

The memorandum enclosed in Harris’ letter which was thereafter duly executed by the Carrolls and the Smiths, reads:

“Diana, Texas
“August 17, I960
“R. Lacy, Inc.
P. O. Box 2146
Longview, Texas
“Gentlemen:
“This refers to oil and gas lease executed by O. H. Smith and wife, Beucie Smith as parties lessor to Sol Simon, dated November 6, 1953 and recorded in Volume 71, page 149, oil and gas lease records of Upshur County, Texas, and to warranty deed from O. H. Smith and wife, Beucie Smith to James T. Carroll, Jr. and wife, Naomi M. Carroll dated June 27, 1959 and recorded in Volume 242, page 19 of the deed records of Upshur County, Texas.
“It was the intention of the parties to the deed above referred to that the deed should cover all of the tract of land which is covered by the oil and gas lease which you hold, and it is therefore requested that the entire annual rental of $25.00 under your lease be paid in the future so that it will be credited to James T. Carroll, Jr. and wife, Naomi M. Carroll, in the -First National Bank at Longview National Bank,
■Gitee?, Texas.
Longview, Texas
Yours very truly
/s/ James T. Carroll, Jr.
James T. Carroll, Jr.
/s/ Naomi M. Carroll
Naomi M. Carroll
/s/ O. H. Smith
O. H. Smith
/s/ Beucie Smith
Beucie Smith”

The court further found, and which we think the evidence supports, that:

“The memorandum mailed to plaintiff James T. Carroll, Jr. by R. Lacy, Inc. dated August 17, 1960, for signature by O. H. Smith, Beucie Smith, James T. Carroll, Jr. and Naomi M. Carroll was written for the purpose of making certain that the land described in deed from O. H. Smith and wife to James T. Carroll, Jr. and wife included all the land covered by the oil, gas and mineral lease from O. H. Smith and wife to Sol Simon, above described, the field notes in the two instruments being different. Said memorandum, as submitted for signature, stated that delay rentals under said lease should be paid so as to be credited to James T. Carroll, Jr. and wife, Naomi M. Carroll in the First National Bank at Gilmer, Texas.
“Plaintiff James T. Carroll, Jr. changed the memorandum referred to in above finding by deleting the words ‘First National’ and ‘Gilmer’ and adding below the line the words ‘Longview National Bank, Longview, Texas.’ ”

The court also found that:

“No agreement was made by the parties for the addition of Longview National Bank as a depository bank under said lease, or to change the depository bank thereunder from First National Bank at Gilmer.
“The ’ oil, gas and mineral lease here under consideration contained no provisions authorizing the lessor to change the depository bank shown in said lease.”

The court made the additional finding which we think is supported by the evidence, that:

“Delay rental of $25.00 to cover said lease in force for one year beginning November 6, 1960, was paid by R. Lacy, Inc., to Longview National Bank, for deposit to credit of plaintiffs on October 7, 1960, and was accepted by plaintiffs.
“Delay rental in the amount of $25.00 for one year beginning November 6, 1961, was paid by check of R. Lacy, Inc., dated October 6, 1961, said check being numbered 1792-R in the amount of $25.50 payable to the order of Longview National Bank, Longview, Texas, and drawn on the account of R. Lacy, Inc. in the Longview National Bank. Said check was received by First National Bank at Gilmer, Texas, and $25.00 thereof was placed to the credit of ‘James T. Carroll, Jr. and Naomi’ in that bank on October 31, 1961.
“The First National Bank at Gilmer, Texas, which received the check of R. Lacy, Inc., payable to the order of Long-view National Bank, in payment of delay rental for one year beginning November 6, 1961, sent that check through banking channels for collection and said check was paid by Longview National Bank to the First National Bank of Gilmer, Texas, although said check was payable to the order of Longview National Bank but endorsed by First National Bank of Gilmer.
“That said delay rental check above described, in payment of delay rental for one year beginning November 6, 1961, drawn on Longview National Bank and drawn payable to Longview National Bank, for deposit to the credit of plaintiffs Carroll reached said Longview National Bank before November 6, 1961, and was paid by said bank on November 1, 1961.
“First National Bank at Gilmer, Texas, promptly after the deposit of said delay rental mailed to James T. Carroll, Jr. and Naomi, at their address at Diana, Texas, in Upshur County, a copy of deposit slip issued by that bank showing that deposit to the credit of James T. Carroll, Jr. & Naomi’ in the amount of $25.00, covering ‘rental’ was credited on October 31, 1961. That notice was duly received by the plaintiffs, who had not withdrawn said $25.00 from said bank at the date of trial of this cause.”

The October 6, 1961, check of R. Lacy, Inc. drawn on the Longview National Bank and payable to the order of Longview National Bank, Longview, Texas, in the sum of $25.50 showed on its face “for deposit to credit of James T. Carroll, Jr. and Naomi M. Carroll, $25.00,” and “bank service charge of 50‡ in payment of delay rentals for one year from November 6, 1961, under the terms of oil and gas lease executed by O. H. Smith, et ux., dated November 6, 1953, recorded in Volume 71, page 149, Oil and Gas Lease Records of Upshur County, Texas.”

In some manner not explained, the check last above described reached the First National Bank of Gilmer and the $25.00 was, on October 31, 1961, credited to James T. Carroll, Jr. and wife, Naomi. The First National Bank of Gilmer, Texas, was shown to be the bank named in the original oil, gas and mineral lease as depository for the payment of “rental” to lessors, their heirs or assigns, under the terms of said lease, and it was expressly provided in said lease that said bank was the agent of lessors. The cancelled check is in evidence and bears the endorsements of both the First National Bank of Gilmer and Long-view National Bank of Longview, Texas.

The full amount of the delay rental was shown to have been deposited to the credit of the appellants in the First National Bank of Gilmer on October 31, 1961, and notice of such credit was shown to have been mailed to appellants by said bank, which was received by the appellants, but they (appellants) refused to withdraw the money from the Gilmer bank. It was further shown that the $25.00 for delay rental would have been paid to the appellants by the Gilmer bank upon request.

The appellees contend that the memorandum was prepared and forwarded for execution by the appellants and their predecessors in title, O. H. Smith and wife, Beucie Smith, in order to clarify differences in description contained in said oil and gas lease when compared with the description contained in the deed to the appellants, and that the changing of the depository submitted in the memorandum (being same depository named in the lease) by striking out the words “First National” and “Gilmer” and writing in “Longview National Bank, Long-view, Texas” could not amount to more than a request on the part of appellants to pay the rentals to Longview National Bank for credit of the appellants.

Appellants do not agree with this contention. They contend that by virtue of the memorandum and the payment of delay rental thereafter by R. Lacy, Inc. to the Longview National Bank, that on November 6, 1961, said Longview bank was the only and proper place for the payment of the delay rental and consequently the lease automatically terminated by the appellees’ failure to pay delay rental to them on the date specified and in the manner to which they had agreed to.

If the memorandum did not change the depository from that named in the oil and gas lease, the receipt by the First National Bank at Gilmer, Texas, prior to November 6, 1961, of check in payment of delay rental under said lease for one year beginning November 6, 1961, satisfied the requirement in the lease that the delay rental be paid or tendered on or before November 6, 1961.

Appellee’s, R. Lacy, Inc., timely tender of the delay rentals, even though refused by appellants, was a sufficient tender to keep the lease alive. West v. Carpenter, 366 S.W.2d 826 (Tex.Civ.App.) 1963, writ refused, n. r. e.

If the depository bank for the payment of rental was changed by the memorandum to the Longview National Bank as contended by appellants, the delivery to Longview National Bank prior to November 6, 1961, of the delay rental check, payable to Longview National Bank for credit of appellants covering delay rental for one year beginning November 6, 1961, however made or accomplished, or by whom delivered, also satisfied the requirement, if any, that the delay rental payment be deposited in the Longview National Bank for the credit of appellants.

Appellee, R. Lacy, Inc., paid the $25.00 delay rental to the Longview National Bank for the account of the appellants, just as requested by the memorandum. Assuming, as contended by appellants, without so holding, that the Longview National Bank was the designated depository bank at the time the R. Lacy, Inc. check dated October 6, 1961, was issued, the Longview National Bank would be lessors’ agent. York v. McBee, 308 S.W.2d 951 (Tex.Civ.App.) 1958, writ refused, n. r. e.; Richmond v. Hog Creek Oil Co., 229 S.W. 563 (Tex.Civ.App.) 1921; Cockrum v. Christy, 223 S.W. 308 (Tex.Civ.App.) 1920, n. w. h.; Craddock v. Humble Oil & Refining Co., 234 S.W.2d 137 (Tex.Civ.App.) 1950, writ refused, n. r. e.; Hunter v. Gulf Production Co., 220 S.W. 163 (Tex.Civ.App.) 1920, n. w. h.

The 1961 rental check from R. Lacy, Inc. was tendered to the owners of said property by appellee, R. Lacy, Inc., through the depository agent designated in the memorandum as requested by the appellants prior to the anniversary date of said lease and said check was paid by said bank and charged to the account of R. Lacy, Inc., upon which it was drawn. Under the above facts, we think that the tender made by appellees was a substantial and sufficient compliance with the terms of the lease and memorandum to extend said oil, gas and mineral lease in force and effect for one year beginning November 6, 1961. Hamilton v. Baker, 147 Tex. 240, 214 S.W.2d 460, 1948; York v. McBee, supra; Hunter v. Gulf Production Co., supra; Tatum v. Fulton, 218 S.W. 1088 (Tex.Civ.App.) 1920, n. w. h.; Gulf Production Co. v. Perry, 51 S.W.2d 1107 (Tex.Civ.App.) 1932, n. w. h.; Richmond v. Hog Creek Oil Co., supra; Perkins v. Magnolia Petroleum Co., 148 S.W.2d 266 (Tex.Civ.App.) 1941, dismissed, judgment correct. As a matter of fact, the proof shows that the delay rental check dated October 6, 1961, was actually in the hands of both of said banks “before the anniversary date of said lease.”

In support of their ..contention, the appellants point out that at no time did the appellees deposit to the credit of James T. Carroll, Jr. and wife, Naomi Carroll, in the Longview National Bank, Longview, Texas, the delay rental which was due on or before November 6, 1961. It is true that the Longview National Bank did not deposit the rental payment to the credit of James T. Carroll and wife, nor notify them that the check had reached there, but if the Long-view National Bank was the designated depository as contended by appellants, it is clear that the bank was, in law, made the agent of the lessors to receive the money and hold it for them and when the check was delivered to the Longview National Bank, with instructions from the lessees or assignees to deposit it to the credit of the lessors, the terms of the lease relative to payment of rentals were fully complied with, and any failure of the bank to pay it to the lessors, or to give them proper credit on its books, could not properly be charged to lessees or assignees. Hunter v. Gulf Production Co., supra; Craddock v. Humble Oil & Refining Co., supra; Tatum v. Fulton, supra; Gulf Production Co. v. Perry, supra.

We now come to the consideration of appellants’ contention raised in their Point of Error No. 2. Appellants contend that on February 26, 1962, they gave notice to R. Lacy, Inc. that the oil, gas and mineral lease had terminated for failure to pay delay rental and requested a release of the lease; that appellee, R. Lacy, Inc., refused to execute such release and subsequent to plaintiffs’ notification to appellee, R. Lacy, Inc., that the oil, gas and mineral lease had terminated, said appellee, its agents, servants and employees, during the months of April and May, 1962, over the protests of appellants, without any legal right or authority, entered upon said land and drilled two oil wells thereon.

Appellants’ position in this regard is that the entry was wrongful and in bad faith and constitutes a bad faith trespasser.

The oil and gas lease also contained a provision which reads:

“ * * * has demised, leased and let and by these presents does demise, lease and let exclusively unto the said lessee, its successors and assigns, the land hereinafter described with the exclusive right of exploring for mineral indication, * * * and with the right of operating for and producing therefrom oil, gas, casinghead gas, casinghead gasoline, sulphur and other minerals, * * * and any and all other rights and privileges, incident to, or convenient for the economical operation of said land for oil, gas, casinghead gas, casinghead gasoline, and other minerals; * * * ”

It is apparent that appellants’ complaint under their Point No. 2 is founded on their belief and contention that the oil, gas and mineral lease had terminated. In disposing of appellants’ Point of Error No. 1, we have hereinabove held that such lease was not terminated.

The lease here under attack by the appellants, and under which they allege that R. Lacy, Inc. caused the injuries alleged in appellants’ pleadings, contains a provision for payment of damages, as follows:

“Lessee shall pay for damages caused by its operations to growing crops on said land.”
And as to the use of water from pond on said land, said lease provides:
“Lessee shall have the right to use, free of cost, gas, oil and water produced on said land, also waste oil, from its operations thereon, except from wells of Lessor.”

In view of the above quoted provision of the lease, appellants’ complaint as to use of water from ponds is without merit.

The trial court made the following findings pertinent to the point now under discussion :

“Each of the conveyances under which the outstanding three-fourths interest in the minerals in said land was severed from the surface ownership expressly provided that the grantee should have the right of ingress and egress to and upon said land at all times for the purpose of mining, drilling and exploring said land for oil, gas and other minerals and removing the same therefrom.
“In the early part of April, 1962, United Drilling Company under contract with Lyons and Logan, as operator, commenced the drilling of a well upon the land described in plaintiffs’ said amended petition, in search for oil, and that well was completed as a producing oil well before the end of April, 1962, which well was still producing oil at the date of trial.
"After completion of the first oil well on said land United Drilling Company, under contract with Lyons and Logan, moved to another location on said lands and completed a second well as a producing oil well.
“The plaintiffs have not shown that R. Lacy, Inc. was the operator of the leasehold estate upon said land or that R. Lacy, Inc. participated in, or exercised any control over, any of said operators.
“No more of the surface of said land was used or occupied in the drilling, completion and operation of said two oil wells than was necessary in carrying on said activities and no negligence of the operation of said leasehold, Lyons and Logan and the successor partnership known as Lyons Petroleum or of the United Drilling Company has been shown.”

However, the court did find that in the drilling, completion and operation of the two oil wells, the pastures and crops had been damaged, to the extent of $450.-00, and by its judgment ordered that the appellants recover from appellee, Lyons Petroleum, the sum of $450.00 for such damages. These findings are supported by the evidence.

It was in open court agreed by the appellants that although the action was brought in the form of trespass to try title, the appellants are claiming only an undivided one-fourth interest in and to the oil, gas and other minerals in, under and that may be produced from the land described in appellants’ petition and are not attacking any mineral or leasehold interest in said lands other than the leasehold interest of R. Lacy, Inc. and J. W. Griffith.

Therefore, there can .be no question of trespass in this case, it being shown and the trial court having so found, that the wells were drilled with rights of entry.

Aside from the validity of oil, gas and mineral lease here attacked, the owners of the remaining three-fourths of the oil, gas and other minerals and their lessees had full rights of ingress and egress upon the land involved. 42 Tex.Jur.2d, Sec. 84, page 200. The proof showed that all operations were carried on by the lessees of such owners.

The oil, gas and mineral lease being in full force and effect at the time of entry complained of by appellants, such entry was not an unlawful one.

The appellants did not plead or prove that the appellees used more land than was reasonably necessary for their operations upon said land, nor did they plead or prove any negligence upon the part of any of the appellees.

Negligence or a failure to perform a duty required by law is never presumed as a fact, but must be proved by evidence; and the burden of proving it is on the party seeking a recovery of damages by reason of such negligence or failure of duty. Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (S.Ct.) 1964; McCarty v. White, 314 S.W.2d 155, 157 (Tex.Civ.App.) 1958, n. w. h.

The Supreme Court of this state in Warren Petroleum Corporation v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352, 1957, held:

“The oil and gas lessee had the right to use so much of the premises and in such a manner as was reasonably necessary to comply with the terms of the lease and effectuate its purpose. * * *
“ * * * In Austin Road Co. v. Boston, Tex.Civ.App., 292 S.W.2d 373, 375, n. r. e., where the plaintiff sued for damages to the premises, the Court held that there was no finding that Austin used more of the land or did anything that was unnecessary to the conduct of the operations authorized by the option and lease. * * * In order for the plaintiff to recover it was necessary that he show that Austin performed the exploratory work in a negligent manner. Respondents cite the following language in that opinion: ‘To sustain the judgment, plaintiffs were required to prove that the damages recovered were caused by the negligence of Austin or that it used more of plaintiffs’ land than was reasonably necessary to do the things authorized by the contracts.’ We agree entirely with that statement of the law. * * * ”

The Waco Court of Civil Appeals, 1961, in the case of Kenny v. Texas Gulf Sulphur Company, 351 S.W.2d 612, writ refused, in following the Warren Petroleum case stated: “Under the laws of Texas, the mineral lessee is permitted to use so much of the premises and in such a manner as is reasonably necessary to enjoy the mineral estate conveyed by the lease, and to effectuate its purpose.” Also see Guffey v. Stroud, 16 S.W.2d 527, 64 A.L.R. 730 (S.Ct.) 1929, and Stradley v. Magnolia Petroleum Co., 155 S.W.2d 649 (Tex.Civ.App.) 1941, writ refused; Miller v. Crown Central Petroleum Corporation, 309 S.W.2d 876 (Tex.Civ.App.) 1958, n. w. h.; Parker v. Texas Company, 326 S.W.2d 579 (Tex.Civ.App.) 1959, writ refused, n. r. e.

We think appellants’ Point of Error No. 2 is without merit and must be overruled.

What we have said disposes of all the errors assigned.

The judgment is affirmed.

      . The trial court erred in holding the lease of Appellees to he valid and in full force and effect because the lease had terminated as a matter of law and was of no force and effect as of November 6, 1961, and any date subsequent thereto, up to and including the present time.

      . The trial court erred as a matter of law in awarding damages in the sum of $450.-00 as a result of the drilling operation and activities conducted on Appellants’ land by Appellees because the undisputed and uncontradicted testimony and evidence in this case shows that the Appellants were damaged in the sum of $7,000.00.


author: COLEMAN, Justice.

text:
    Frank R. DOPPKE, Appellant, v. AMERICAN BANK AND TRUST COMPANY, Appellee.
    No. 14769.
    Court of Civil Appeals of Texas. Houston.
    March 31, 1966.
    Rehearing Denied May 5, 1966.

      Kirchheimer & Kirchheimer, Theodore Kirchheimer, Houston, for appellant.
    George H. Hagle, Houston, Andrews, Kurth, Campbell & Jones, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit on a promissory note by a National Bank located in Lansing, Michigan. Appellant filed a cross-claim based on the payment of usurious interest. The cross-claim was disallowed and this appeal followed.

Appellant purchased a house trailer from Little Lake Mobile Home Sales. In connection with this sale he executed a conditional sales contract and a promissory note. The contract itemized the consideration as follows:

Cash delivered price $5,201.00
Down payment 1,000.00
Balance to finance 4,201.00
Insurance 388.86
Interest 1,926.86
Total contract 6,516.72

The total contract price was payable in 84 equal installments of $77.58. A promissory note secured by the contract was executed. It provided for interest after maturity and for acceleration of maturity in case of default in the payment of any installment. The note was payable at the office of the American Bank and Trust Company, Lansing, Michigan, and recited that appellant’s residence was Route 2, Ne-gaunee, Michigan. The form for the contract and note was supplied to the Trailer Company by the Bank. The note and chattel mortgage was assigned to the Bank by the Trailer Company.

Six months later appellant purchased another house trailer from Little Lake Mobile Home Sales. A note and chattel mortgage was executed by the parties. This mortgage recites appellant’s residence as being in Negaunee, Michigan, and Little Lake Mobile Home Sales’ residence as Forsyth, Michigan. It shows a cost price of $4,596.-16, a “time price differential (finance and service charge)” of $1,815.48, and a “time selling price” of $6,411.64. The note was in the principal sum of $6,411.64 payable in 79 monthly installments of $81.16 each and bearing interest at the highest legal rate after maturity. It provided for acceleration on default and was payable at American Bank and Trust Company, Lansing, Michigan. This note and mortgage was assigned to the Bank. Two days later the first note and mortgage was marked paid by the Bank and the Bank records reflect that it was paid.

Appellant testified that he was dissatisfied with the first trailer and went to Mr. Smith, the owner of Little Lake Mobile Home Sales, and asked him if he could somehow or other arrange to get another trailer which he had on the lot. Smith told him that he would “take the balance of the first trailer, what I owed on it, and put it toward the second one, and he would arrange for all the paper work, which he did, and * * * any difference in the price of the trailer, he would add to the second mortgage.”

It was stipulated that appellant made eighteen payments on the second note, leaving an unpaid balance of $4,950.76. After appellant defaulted the maturity of the note was accelerated, the chattel mortgage foreclosed, and the trailer sold for a fair price. After crediting appellant with the proceeds of the sale, there remained due on the note the sum of $2,617.52.

The trial court found that the first trailer was returned by appellant and the note and chattel mortgage securing it were can-celled by mutual agreement and that appellant was given credit for payments made on the first trailer when he purchased the second one. Appellant urges that the evidence is insufficient to support this finding of fact. In view of the disposition we make of this case, we find it unnecessary to determine this point.

It is appellant’s contention that the chattel mortgage contracts show on their faces usurious interest charges of $1,926.86 in one case and $1,815.48 in the other, and that in addition the acceleration clauses make the notes usurious.

This question must be determined under the applicable Michigan law. Pursuant to the provisions of Rule 184a, Franki, Ann. Texas Rules of Civil Procedure. (Vernon 1955), appellee moved that the trial court take judicial notice of the applicable statutes and decisions of the State of Michigan. This motion was filed prior to the date of trial and notice of the motion was given to appellant. The trial court found as a matter of law that the Michigan law was applicable and that the contracts were not usurious under that law.

Appellant now contends that the trial court could not notice the law of Michigan unless it was proved at the trial as provided in Article 3718, Vernon’s Ann.Tex.Civ. St., and also contends that the motion was insufficient in that it failed to set out with particularity what laws or court decisions appellee desired the court to judicially notice.

Appellant was put on notice that appellee contended that the contracts were not usurious under the Michigan court decisions by an application for summary judgment filed in the cause several months prior to the trial, which application cited the cases upon which appellee relied. In the absence of any exception to the contents of the formal notice or to the date on which it was filed, the trial court did not abuse his discretion in determining that the notice was timely and sufficient. Gard v. Gard, Tex.Civ.App., 244 S.W.2d 884; Gould v. Awapara, Tex.Civ.App., 365 S.W.2d 671.

It is not necessary to produce proof of facts of which a court is authorized to take judicial knowledge. Marsh v. Millward, Tex.Civ.App., 381 S.W.2d 110, error ref., n. r. e.; McCormick and Ray, Texas Law of Evidence, Vol. 1, Ch. 5, Judicial Notice.

Since these contracts were entered into in the State of Michigan and were to be performed there, and all parties were citizens of that State on the date each was executed, the interpretation, validity, and obligations of the parties thereto must be determined by the law of the státe where executed. McCans v. Brandtjen & Kluge, Inc., Tex.Civ.App., 179 S.W.2d 352; 16 Am.Jur.2d, Conflict of Laws, § 39.

In Keefe v. Bush & Lane Piano Co., 1929, 247 Mich. 82, 225 N.W. 585, the Supreme Court of Michigan said:

“ ‘Usury can only attach to a loan of money or to the forbearance of a debt. On a contract to se'cure the price or value of work and labor done, or to be done, or of property sold, the contracting parties may agree upon one price if cash be paid, and upon as large an addition to the cash price as may suit themselves if credit be given; and it is wholly immaterial whether the enhanced price be ascertained by the simple addition of a lumping sum to the cash price, or by a percentage thereon. In neither case is the transaction usurious. It is neither a loan nor the. forbearance of a debt, but simply the contract price of work and labor done, or property sold; and the difference between cash and credit in such cases, whether 6, 10, or 20 per cent., must be left exclusively to the contract of the parties, and no amount of difference, fairly agreed upon, can be considered illegal.’ Davidson v. Davis, 59 Fla. 476, 52 So. 139, 28 L.R.A.,(N.S.), 102, 20 Ann.Cas. 1130; State Mut. Rodded Fire Insurance Co. [of Michigan] v. Randall, 232 Mich. 210, 205 N.W. 165, 41 A.L.R. 973.”

In Wright v. First National Bank of Monroe, 1941, 297 Mich. 315, 297 N.W. 505, the court said:

“Even though the contract of May 20, 1932, involved in part the payment of usury by the plaintiffs, its effect was a voluntary settlement of a usurious obligation. It was not necessary for the plaintiffs to pay this usurious sum and it was therefore a voluntary payment by them. The rule in this State is that one who has freely and of his own accord fulfilled a usurious contract cannot have relief or recover the money paid thereon. Dykes v. Wyman, 67 Mich. 236, 34 N.W. 561. Our research has failed to disclose a single case wherein the usurious debt was settled by taking the property, conveyed to secure it, where a court of equity has opened the transaction and allowed a redemption on the grounds of usury alone.”

In Black v. Contract Purchase Corporation, 1950, 327 Mich. 636, 42 N.W.2d 768, the court said:

“Unless the sale and purchase of property is a mere pretense, the seller may charge a greater price for goods bought on credit than for cash without rendering the transaction usurious. Hartwick Lumber Co. v. Perlman, 245 Mich. 3, 222 N.W. 147; Keefe v. Bush & Lane Piano Co., 247 Mich. 82, 225 N.W. 585.

“ ‘Exacting a credit price for an automobile in excess of the legal interest on the cash price is not usurious.’ General Motors Acceptance Corp. v. Swain, La.App., 176 So. 636.

“The sales of the vehicles were unquestionably consummated and were the actual basis of the dealings. They were not fictitious creations serving as camouflage. Defendant, through purchase of the commercial paper, had the right to enforce the obligations in accordance with their tenor and its refusal to appreciably reduce them upon payment in full before due date was in pursuance of that right.”

These cases by the Supreme Court of Michigan establish that the contracts in question in this case are not usurious ; that in any event there could be no recovery on the first contract because appellant voluntarily paid it off; and that the contracts were not made usurious by reason of the acceleration clauses. Other claimed errors, therefore, become immaterial.

The judgment of the trial court is affirmed.


author: WELBORN, Commissioner.

text:
    Beatrice D. TOOMES, Plaintiff-Appellant, v. CONTINENTAL OIL COMPANY, a Corporation, and Fred Berry, Defendants-Respondents.
    No. 51525.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 9, 1966.
    Alfred B. Couch, Terrance W. Imes, Kansas City, for appellant.
    Hale Houts, Thad C. McCanse, Houts, James, McCanse & Larison, Kansas City, for respondents.
   WELBORN, Commissioner.

This is an appeal by plaintiff below from a judgment dismissing her petition seeking $25,000 damages for the wrongful death of her husband.

Plaintiff’s husband, a resident of Missouri, received injuries in the State of Kansas on August 18, 1959, which resulted in his death on August 22, 1959. On February 20, 1960, an action for his wrongful death was brought in the Jackson County Circuit Court against defendants here. On November 9, 1961, plaintiff dismissed that cause, without prejudice. On October 1, 1962, the petition in this case was filed. Defendants’ motion to dismiss on the grounds that the cause was barred by the 2-year limitation provision of the Kansas Death Act, § 60-3203, Kan.G.S., 1949, was sustained by the trial court. This appeal followed.

Plaintiff states her contention on this appeal as follows: “Plaintiff’s action is brought under the Provisions of Section 60.3203 General Statutes of Kansas 1949. This section having been ‘borrowed’ [516.-190, RSMo 1959, V.A.M.S.] it becomes a Missouri statute, * * *. Being thus a Missouri statute by being borrowed, it fits exactly with Section 537.100 R.S.Mo.1959 and the appellant’s cause of action is saved thereby.” The saving provision of § 537.-100, RSMo 1959, V.A.M.S., according to plaintiff, is that which permits a new wrongful death action within one year from a nonsuit in a timely filed action. Plaintiff alternatively contends that the similar general saving provision of § 516.230, RSMo 1959, V.A.M.S., removes any bar of limitations.

Plaintiff relies primarily upon Christner v. Chicago, R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752. In that case, plaintiff brought suit in Missouri -to recover damages for personal injuries incurred in Kansas. A suit was brought in Missouri and removed to the federal court where a nonsuit was taken. Six days later, a second action was filed in Missouri. In the second action, the defendant interposed the defense of a Kansas 2-year statute of limitations, made applicable by our borrowing statute. The court held that the Missouri saving statute [now § 516.230] was effective and prevented the bar of the action by the Kansas 2-year statute. The court, in effect, held that the borrowing statute did make the Kansas statute of limitations the applicable statute of limitations. However, our borrowing statute did not interpose the foreign statute as an absolute bar. The effect of the borrowed statute was limited by applicable statutes in pari materia, including the nonsuit saving statute. Therefore, the original action having been brought within the limits prescribed, the timeliness of the second action, within the saving period, was not affected by the fact that the Kansas statute had run at the time of the second action.

A similar result was subsequently reached by the Supreme Court in Turner v. M-K-T R. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829. See also Wright v. New York Underwriters Ins. Co., D.C., W.D.Mo, 1 F.Supp. 663. In Turner, the court pointed out that the Kansas statute of limitations involved in that case was “a pure statute of limitations applicable to civil actions other than for the recovery of real estate (in other words, it does not create the causes of action but merely limits them) * * Such, also, was the nature of the statute of limitations involved in Christner.

Such is not, however, the nature of the limitation provision of the Kansas wrongful death statute, with which we are here concerned. The Kansas statute which created the right of action also limits the time for suit.

The Kansas Supreme Court has construed the 2-year limitation of its wrongful death act as “a condition imposed upon the exercise of the right of action granted.” Rodman v. Missouri Pac. R. Co., 65 Kan. 645, 70 P. 642, 59 L.R.A. 704; Bowles v. Portelance, 145 Kan. 940, 67 P.2d 419. In Rodman, the Kansas Supreme Court further held that a general saving statute permitting a new action beyond the period of limitations, if filed within a year of a nonsuit in a timely filed action, was not effective in a wrongful death action.

Our courts have recognized the applicability of foreign “built-in” limitations to actions brought here. In Turner v. M-K-T R. Co., supra, the court stated: “The [limitations] law of the forum governs except where the foreign statute that imposes the limitation also creates the remedy.” 142 S.W.2d 459. See also Carter v. Burns, 332 Mo. 1128, 61 S.W.2d 933, 941[11]; State of Kansas ex rel. and to Use of Winkle Terra Cotta Co. v. U. S. Fidelity & G. Co., 328 Mo. 295, 40 S.W.2d 1050, 1052[5, 6]; Farthing v. Sams, 296 Mo. 442, 247 S.W. 111, 112[1]; Williams v. St. Louis & S. F. Ry. Co., 123 Mo. 573, 27 S.W. 387, 390; Thomsen v. Mill, Mo.App., 248 S.W.2d 6, 9-10 [2, 3]. “Where the statutory time requirement for the bringing of a death action is regarded, not as a mere limitation of the remedy, but as a condition precedent to the right of action or as a part of the substantive right of action itself, it has been held that the time requirement is inherent in the right of action, and that in an action brought under a foreign statute, the foreign statute, rather than the statute of the forum, governs.” 22 Am.Jur.2d, Death, § 282, p. 803; Annotation, 95 A.L.R.2d 1164.

In our opinion, the liability here sought to be enforced having been created by Kansas statute, the limitation period which it provided was directed to the right “so specifically as to warrant saying that it qualified the right.” Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 694, 48 L.Ed. 1067. The limitation, “[t]he action must be commenced within two years,” was found in § 60-3203, Kan.G.S., 1949, the section which gave the right of action for wrongful death at the time of the suits here.

Application of such a foreign statute by the forum is not dependent upon a “borrowing” statute. The time for filing of the action being substantive, the forum applies it under general principles of conflicts of laws governing the application of substantive law. See Pack and Arsht v. Beech Aircraft Corp., 11 Terry 413, 50 Del. 413, 132 A.2d 54, 67 A.L.R.2d 207; Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180 A.2d 129, 95 A.L.R.2d 1153.

Plaintiff suggests that, in any event, the nonsuit saving provisions of §§ 537.100 and 516.230, supra, are procedural provisions which the courts of this state should apply in this case. Without getting into the constitutional question which respondents assert would preclude the application of our saving statute to this right of action based upon Kansas law and brought in our courts, we must determine whether or not either of the saving provisions relied upon by plaintiff is applicable in these circumstances. As for § 537.100, that section, by its terms, applies to actions based upon Missouri law. In Lang v. J. C. Nichols Inv. Co., 227 Mo.App. 1123, 59 S.W.2d 63, the court found it so limited and, therefore, refused its application to a Kansas death action instituted more than one year after it arose. The statutory language which the court found to preclude application of § 537.100 to bar the Kansas action would also preclude application of its nonsuit saving provision to a Kansas action. The “any such action” in which a nonsuit permits a new action within one year is an “action instituted under § 537.080,” or a Missouri wrongful death action.

§ 516.230, the general nonsuit saving section, applies to actions which “shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370 * * The limited application of this provision is attested to by our decisions, prior to the enactment of the non-suit saving provision for wrongful death actions (Laws of Mo., 1905, pp. 137-138; Laws of Mo., 1909, pp. 463-464), that it was not applicable to such actions brought under the Missouri act. Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40. See Gerren v. Hannibal & St. J. R. R. Co., 60 Mo. 405, 411. In other words, § 516.230 is not a general procedural statute. Its application .is limited to causes of action, limitations for which are prescribed by § 516.-010 to § 516.370. See Frazee v. Partney, Mo.Sup., 314 S.W.2d 915. The only possible basis for concluding that this action is in any way limited by virtue of one of such sections would be by way of the borrowing statute. We have previously demonstrated its inapplicability. (We consider what was said in such regard to the contrary in Lang v. J. C. Nichols Inv. Co., supra, dictum. The only thing decided in that case was the inapplicability of the Missouri statute of limitations.)

The trial court properly sustained the motion to dismiss. The judgment is affirmed.

HOUSER and HIGGINS, C-C, concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.

      . Plaintiff on this appeal has been content -to rest upon the long-accepted distinction between substantive and procedural law as affording the proper basis of choice of law in this case. We, therefore, are not called upon to re-examine our long-established concepts in this field. Our courts have generally applied the distinction which plaintiff accepts. See Robinson v. Gaines, Mo.Sup., 331 S.W.2d 653; Russell v. Kotsch, Mo.Sup., 336 S.W.2d 405; Scott v. Jones, Mo.App., 334 S.W.2d 742; Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748, 2 A.L.R.2d 1292. In recent years, courts of other jurisdictions have had occasion to re-examine the traditional concepts and some have concluded that they are unacceptable. See Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1; Kilberg v. Northeast Air Lines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526; Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408; Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796; Watts v. Pioneer Corn Company, 7th Cir., 342 F.2d 617. § 379a of Tentative Draft No. 9 of the Restatement Second, Conflict of Laws, provides: “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.” The above-cited cases contain many references to the deluge of recent legal writings on this subject. For an application of the new concept to a problem of choice of statute of limitations for a foreign wrongful death claim see Gianni v. Fort Wayne Air Service, Inc., 7th Cir., 342 F.2d 621. (Plaintiff does not contend that her action is, in any event, limited by the Missouri 1-year provision.) Other courts have declined “to voyage into such an uncharted sea, leaving behind well established conflict of laws rules.” Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288, 293; Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303; Friday v. Smoot, Del.Sup., 211 A.2d 594. See Robinson v. Gaines, supra.

      . According to the opinion in Christner, plaintiff was injured on September 4, 1929 and the first suit was not brought until February, 1932. If such were the facts, the first action would not have been timely and plaintiff could not have been saved by her second action within one year thereafter. See Note “When is a Foreign Cause of Action Barred by Limitations in Missouri?” 21 StX.Law Rev. 43. However, “inquiry” is said to have revealed that the first suit in Christner “ ‘was filed within a few weeks after the cause of action arose, rather than two years and five months after it arose, as the reports show.’ ” Ibid., 254. Turner v. M-K-T R. Co., 346 Mo. 28, 142 S.W.2d 455, 459, 129 A.L.R. 829, declared that Christner “was well decided.”

      . The Kansas legislature enacted a new code of civil procedure in 1963. Laws 1963, ch. 303. The new enactment places the death act limitation [§ 60-613] in the general limitation article [Article 6] and in the same section fixing a 2-year limitation for other actions. K.S.A. 60-513. Authority for actions for wrongful death now appears in Article 19, §§ 60-1901 to 60-1906, Oh. 303, Laws, 1963. K.S.A. 60-1901 — 60-1905. We need not here consider whether such change would be significant if the new statute were applicable.

      . See Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211; Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492.


author: DONNELLY, Judge.

text:
    Paul GIBSON, Jr., By and Through His Next Friend, Alma Gibson, Plaintiff-Appellant-Respondent, v. Ben F. NEWHOUSE, Defendant-Respondent, and Bud Godsey, Defendant-Appellant.
    No. 51283.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.
    Motion for Rehearing or to Transfer to Court En Bane Denied May 9, 1966.

      William L. Pannell, Festus, for appellant-Godsey.
    Earl R. Blackwell, Hillsboro, for plaintiff-respondent.
    J. Richard Roberts, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Newhouse.
   DONNELLY, Judge.

On May 23, 1964, the minor plaintiff Gibson was operating a motor scooter in a westerly direction on Highway 110 in Jefferson County, Missouri. Defendant God-sey, at said time and place, was operating a tractor and hay wagon in an easterly direction in the eastbound lane. Defendant Newhouse, operating his automobile in an easterly direction, came up behind Godsey’s hay wagon, then pulled into the westbound lane to pass Godsey’s hay wagon and collided with Gibson.

Gibson sued Newhouse and Godsey for $80,000. Trial was had in the Circuit Court of Jefferson County, Missouri. A motion for directed verdict was filed by Godsey at the close of plaintiff’s evidence, which motion was overruled. Godsey stood on his motion and did not participate further in the trial except when called as a witness by Newhouse. The jury returned a verdict against Newhouse in the amount of $20,000 and in favor of Godsey. Newhouse filed a motion for new trial which was sustained by the trial court. Plaintiff filed a motion for new trial against Godsey, which was sustained by the trial court “on the ground that the jury’s final verdict respecting issues between plaintiff and Godsey is contrary to the weight of the evidence.”

Godsey appeals from the ruling of the trial court ordering him to submit to another trial and alleges that plaintiff’s evidence is insufficient to make a case against God-sey.

The first question for determination is: In ruling on the sufficiency of plaintiff’s case, must we consider only the evidence adduced to the point in the trial where Godsey filed his motion for directed verdict and stood on it, or can we consider all the evidence in the case? Godsey was called as a witness by Newhouse. On cross-examination by the attorney for Gibson, Godsey was asked if he knew Newhouse was going to call him to testify and he answered that he did not. Godsey’s attorney, after filing the motion for directed verdict at the close of plaintiff’s evidence, did not participate further in the trial. He questioned no witnesses, submitted no instructions, and did not argue the casé. It is the law in this State that where a defendant does not stand on his motion for directed verdict at the close of plaintiff’s evidence, but goes on and puts in his own case, we look to all the evidence in the case to see if plaintiff’s case was aided by defendant’s proof. Flanigan v. City of Springfield, Mo.Sup., 360 S.W.2d 700; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705. However, in the instant case, Godsey stood on the motion.

Where there is one defendant in a case and he stands on a motion for directed verdict, and plaintiff does not reopen, the trial of the case ends and plaintiff’s evidence is all the evidence available for consideration. Where there are multiple defendants, and all stand on their motions for directed verdict, and plaintiff does not reopen, the trial of the case ends and plaintiff’s evidence is all the evidence available for consideration. A problem arises, as here, where there are multiple defendants, and one of the defendants stands on his motion for directed verdict, and evidence is adduced in behalf of the other defendant or defendants. This problem has given the courts much difficulty. See Annotation, 48 A.L.R.2d 535. In Sowell v. Champion (1838) 6 Ad & El 407, 112 Eng Reprint 156, 2 Nev & P 627, Lord Denman, Ch. J., stated the rule as follows: “The application to a Judge, in the course of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discretion; and that discretion is to be regulated, not merely by the fact that at the close of the plaintiff’s case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. There is so palpable a failure of justice, when the evidence for a defence discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place, but where there is the strongest reason to believe that such a consequence cannot follow.” In Benoist v. Sylvester, 26 Mo. 585, this Court subscribed to the rule that what we now call a motion for a directed verdict should be made at the close of plaintiff’s case, before any part of the defendant’s evidence is gone into. The right of a defendant to move for a directed verdict at the close of plaintiff’s case is recognized in § 510.280 RSMo 1959, V.A.M.S. In Rothweiler v. St. Louis Public Service Co. et al., Mo.App., 224 S.W.2d 569, 573, the St. Louis Court of Appeals considered error assigned by St. Louis Public Service Company to the trial court’s refusal of its motion for a directed verdict. There were two defendants in the case, Edward Cordia and St. Louis Public Service Company. In considering the submis-sibility of the case against St. Louis Public Service Company, the Court said: “ * * * the question must be decided upon the strength of plaintiff’s own evidence unaided by the evidence brought forward by defendant Cordia in his own defense, since defendant St. Louis Public Service Company stood on its motion for a directed verdict at the close of plaintiff’s case, and thereby did nothing to waive its right to challenge the action of the court at that stage of the proceeding. * * * ” The Rothweiler case was transferred to this Court, and this Court, en banc, affirmed the conclusions of the Court of Appeals except as to the propriety of an instruction and reversed the case for error in the instruction. Rothweiler v. St. Louis Public Service Co., et al., 361 Mo. 259, 234 S.W.2d 552. Cf. Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; Christinsen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892, 48 A.L.R.2d 522; Carson v. Weston Hotel Corp., 351 Ill.App. 523, 115 N.E.2d 800; and Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148. We, therefore, follow the rule announced in the Rothweiler case and hold that, in ruling on the submissibility of the evidence in this case against Godsey, we are limited to a consideration of the evidence adduced prior to the filing of Godsey’s motion for directed verdict. We do not believe this rule works a hardship on plaintiffs generally. Plaintiffs are entitled to prove essential parts of their cases by testimony of adverse parties at the trial. Section 491.030 RSMo 1959, V.A.M.S. They may request of defendants the admission of facts and of genuineness of documents. Rule 59, V.A. M.R. They may utilize depositions and interrogatories, Rules 56 and 57, V.A.M.R., and admissions against interest of the adverse parties contained in answers thereto may be introduced by plaintiffs in their cases in chief. White v. Burkeybile, Mo.Sup., 386 S.W.2d 418, 422, 423. There is no reason why plaintiffs cannot present all available evidence essential to their recovery before they rest their cases.

As heretofore stated, the jury found the issues of negligence in favor of Godsey but the trial court was of the view that the verdict was against the weight of the evidence and for that reason sustained plaintiff’s motion for a new trial. Section 510.330 RSMo 1959, V.A.M.S.

“A new trial having been granted on this broad discretionary ground, the trial court’s view that the verdict was against the weight of the evidence is conclusive in this court unless there has been a manifest abuse of discretion, which in this case is demonstrable only if there was no substantial evidence justifying the submission of the plaintiff’s claim of negligence to the jury.” Berry v. Harmon, Mo.Sup., 323 S.W.2d 691, 693. In determining whether or not a sub-missible case was made for the jury against Godsey, we must consider plaintiff’s evidence from a viewpoint most favorable to plaintiff and give plaintiff “the benefit of every reasonable favorable inference which the evidence tends to support.” Berry v. Harmon, Mo.Sup., 329 S.W.2d 784, 789. “But, of course, the case is not to be submitted unless each and every fact essential to liability is predica sential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company, 363 Mo. 406, 251 S.W.2d 635, 642; Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323; 32 C.J.S. Evidence § 1042, p. 1116. The question of whether the evidence in a given case is substantial is one of law for the court. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788; Tharp v. Monsees, Mo., 327 S.W.2d 889, 899.” Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, 802, 91 A.L.R.2d 1252.

Plaintiff contends that there is substantial evidence to support either or both of the following submissions of negligence on the part of Godsey: (I) In operating his tractor and hay wagon on the pavement of a heavily-traveled highway with many hills and curves after dark, and at a speed which was so slow as to endanger persons traveling on said highway at that time, and (2) that Godsey failed and omitted to operate his tractor and hay wagon on the eight-foot shoulder of the heavily-traveled highway.

A review of the evidence adduced in plaintiff’s case in chief is in order. A collision occurred between an automobile operated by Newhouse and a motor scooter operated by Gibson on Highway 110, Jefferson County, Missouri, the night of May 23, 1964. Highway 110 extends east and west. The collision occurred on a double curve, an “S” curve. The highway has quite a few curves in it and it goes up and down hill. There are shoulders eight feet wide on both the north and south sides of the highway. The accident happened on a Saturday night. Generally, on a Saturday night, the traffic is “considerably more heavy than it is on any other night during the week.”

When the accident happened Gibson was going to his sister’s house in DeSoto. As he was driving west on his motor scooter, he passed the tractor and hay wagon, which was going east. Children were riding on the hay wagon. He went up the highway, turned around and, at a speed of about 30 miles per hour, passed the tractor and hay wagon traveling east. About an eighth of a mile beyond the tractor and hay wagon he again turned around and started back in a westerly direction. As he got beside the tractor and hay wagon he saw the Newhouse automobile coming around the hay wagon from the west. Plaintiff Gibson headed for the ditch to the north of the highway. The front of the Newhouse automobile struck Gibson when about a foot away from the north edge of the highway. The hay wagon was traveling at that time on its right side of the pavement.

Plaintiff submits that we should take judicial notice that a tractor towing a hay wagon would not exceed a speed of fifteen miles per hour at most, and, if so, that such fact would permit a jury to find a speed so slow as to endanger persons traveling on the hilly, curvy, and heavily-traveled highway after dark. He further submits that Godsey’s conduct was for the jury because Godsey under the circumstances failed to operate the tractor and hay wagon on the eight-foot shoulder of the highway. The effect of all this is that plaintiff asks us to rule that defendant’s conduct in operating a tractor and hay wagon after dark on a hilly, curvy, and heavily-traveled highway was, in itself, sufficient to make a jury issue of negligence.. This we cannot do. To do so would allow a jury to base a verdict on speculation and conjecture. Further, there is no substantial evidence upon which to base a finding of proximate cause. Plaintiff cites Lafferty v. Wattle, Mo.App., 349 S.W.2d 519. There, the car in which plaintiff was riding struck the rear of defendant’s truck. The Court treated the effect of § 304.011 RSMo 1959, V.A.M.S., our “slow speed” statute, and correctly stated “there must exist circumstances which conform to the purpose and intent of the act before it presents a question for the jury.” [349 S.W.2d 519, 528.] A case somewhat similar to the facts in the instant case is Nash v. Christenson, et al., 241 Minn. 164, 62 N.W.2d 800. Our § 304.011 RSMo 1959, V.A.M.S. reads in part as follows: “No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” These provisions and the Minnesota “slow speed” statute are identical. In the Minnesota case, Irving and Clifford Strassburg had purchased a used road grader. Clifford was driving it home on a public highway at a speed of about 15 miles per hour. Irving was following in a DeSoto. Both were traveling south. Christenson, traveling south, came up behind Irving, decided to pass Irving and Clifford and saw Nash coming from the opposite direction. Chris-tenson decided to go back into his own lane of traffic. In doing so, he hit the left rear of Irving’s DeSoto. This, in turn, caused his car to be thrown into the east lane of the highway and into the path of the Nash automobile. Christenson and Nash collided. Nash sued Christenson, Irving Strassburg, Clifford Strassburg, and Christenson’s employer. Nash invoked against Clifford and Irving the “slow speed” statute and also contended that they should have given way by driving on the shoulder. The Supreme Court of Minnesota rejected these contentions and held that the issues of negligence and causation as to each of the Strassburgs should not have been submitted to the jury.

We have a similar situation here. A fatal weakness in plaintiff’s case is that a jury would be required to guess as to why Newhouse passed Godsey and collided with Gibson. A lack of substantial evidence in this respect distinguishes our case from the case of Bowman v. Moore, 237 Mo.App. 1163, 167 S.W.2d 675. It seems to us that only by resorting to speculation and conjecture outside of and beyond the scope of the evidence may it be found that any negligence of Godsey proximately caused any injury to Gibson. This being true, Gibson failed to make a submissible case.

The case is reversed and remanded with direction to enter judgment for defendant Godsey. Gibson filed a notice of appeal here. However, he did not pursue the appeal and his appeal is, therefore, dismissed.

All concur.