author: WILLIAMS, Justice.

text:
    Jody Ray ARRINGTON et al., Appellants, v. Dr. Earle PASCHALL, Jr. et al., Appellees.
    No. 15938.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 15, 1961.
    Rehearing Denied Jan. 5, 1962.

      Touchstone, Bernays & Johnston, Dallas, for appellants.
    Woodruff, Hill & Bader, and Robert A. Fanning, Dallas, for appellees.
   WILLIAMS, Justice.

Dr. Earle Paschall, Jr., sued Jody Ray Arrington, a minor, and his father, Raymond E. Arrington, for personal injuries sustained by Dr. Paschall and his wife as a result of a collision between the Paschall and Arrington automobiles on Christmas Day, 1959. General Insurance Company of America intervened for property damages. A jury trial resulted in a verdict which exonerated Raymond E. Arrington of any negligence, but convicting Jody Ray Arrington of certain acts of negligence which proximately caused the collision. In answer to special issues Nos. 13 and 14, the jury found Dr. Paschall guilty of failing to keep a proper lookout which proximately caused the collision. Dr. Paschall, and the Insurance Carrier, filed their motion to disregard the jury’s findings of improper lookout and proximate cause, and for judgment on the balance of the verdict. This motion was granted and judgment rendered for Dr. Paschall and the Insurance Carrier, from such judgment Jody Ray Arrington appeals, requesting this Court to reverse and render the judgment of the trial court. Dr. Paschall and the Insurance Carrier, by cross-points, also appeal requesting this Court to reverse and remand the cause for a new trial.

We consider first Arrington’s appeal based upon the single point that there was sufficient evidence to justify the jury’s finding of improper lookout, and proximate causation on the part of Dr. Paschall, and therefore the trial court was in error in disregarding these jury findings and in failing to render a judgment for the defendants below.

The collision occurred on U. S. Highway 80, near Dallas, at a time when the' weather was clear and dry. The Highway is a divided four-lane roadway, with a wide parkway separating the east and west bound lanes. Appellee Paschall was driving his automobile in an easterly direction in the left-hand or inside lane of traffic, at about 55 miles per hour, and was in the process of passing a Ford automobile being driven by appellant Jody Ray Arring-ton, who was also traveling in an easterly direction in the right-hand or outside lane, at about 25 to 35 miles per hour. At this time the Ford automobile made a sudden left turn from the right-hand lane, as contended by appellees, or changed lanes gradually, preparatory to making a left turn across the parkway, as contended by appellants. The actual point of contact between the automobiles is disputed. Appel-lees contend that point of contact was off the pavement on the shoulder of the road, and appellants contend that the point of contact was in the left-hand lane of traffic. It is undisputed that Arrington did not see the Paschall automobile until after the collision; that he did not signal an intention to turn or change lanes, and that the windows on his automobile were rolled up.

Arrington testified that prior to the collision he was traveling in the right-hand lane, at approximately 25 to 35 miles per hour, looking for a “cross-over” where he could make a U-Turn. Plaintiffs’ exhibit No. 2, a large photograph, reveals what was a traveled “cross-over” between the two highway segments, but which is now shown to have been blocked by concrete posts. At the time of the trial it was demonstrated that when the collision occurred this “crossover” was not blocked by the concrete posts. Arrington further testified that he was about 6-car lengths, or about 96 feet from the “cross-over” when he started angling to change lanes and that the point of impact was not more than 4 feet to the left, or north of the center stripe. He frankly admitted that he did not look behind or give any signal of his intention to make the change from one lane to another prior to doing so. Arrington testified the initial point of impact was with the right front of the Paschall car which struck the left front door, fender, wheel and bumper of the Ar-rington car. Plaintiffs’ exhibit Nos. 9 and 10, being large photographs of the Arring-ton car, tend to substantiate his testimony concerning the point of impact on his car. As opposed to Arrington’s testimony, Paschall testified that as he was driving in the inside lane at about 55 miles per hour, he saw the Arrington automobile in the right-hand lane; that he was intending to pass the Arrington automobile, but admitted that he did not sound his horn before attempting to do so; that as he neared Ar-rington’s automobile it turned suddenly to its left to make a U-Turn across the center esplanade; that the Arrington automobile struck the right rear side of Paschall’s car, which swerved to its left and collided with a row of posts in the center of the esplanade. Paschall said that appellant’s left front fender hit his right rear fender and then scraped his car from back to front»

From this résumé of the evidence it is obvious that the evidence of Paschall and Arrington, both direct and circumstantial, as well as the evidence demonstrated by the photographs, create a conflict (1) as to the location of the collision relative to the “cross-over”; (2) the location of the collision with respect to the center lane or shoulder of the highway; (3) whether the Arrington car was making a sudden U-Turn just before the collision, or whether it was merely changing lanes preparatory to such U-Turn; and (4) the location on the cars of the first point of contact. Each of these matters would have a direct bearing on the question of lookout as submitted to the jury.

Of course, it is elementary, that perforce Rule 301, Texas Rules of Civil Procedure, the trial court is authorized to disregard the jury’s answer to any special issue that has no support in the evidence. It is also elementary that, on appeal, a reviewing court must accept the evidence and all permissible inferences therefrom in a manner most favorable to the verdict, and must disregard all evidence and inferences contrary to the verdict. Cartwright v. Canode, (Sup.) 106 Tex. 502, 171 S.W. 696 and Burt v. Lochausen, (Sup.) 151 Tex. 289, 249 S.W.2d 194; Biggers v. Continental Bus System, Inc., (Sup.) 157 Tex. 351, 303 S.W.2d 359.

Ordinarily, proper lookout is a question for the jury. Texas & Pacific Ry. Co. v. Day, (Sup.) 145 Tex. 277, 197 S.W.2d 332.

Our Supreme Court in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275, clearly established the rule applicable in cases of this kind. There the Supreme Court said:

“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. * * * The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.”

See also Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829; Southerland v. Porter, Tex.Civ.App., 336 S.W.2d 841; Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506; Dillard v. Griffin, Tex.Civ.App., 341 S.W.2d 696; Comer v. Phillips, Tex.Civ.App., 340 S.W.2d 103; Benoit v. Wilson, (Sup.) 150 Tex. 273, 239 S.W.2d 792; Dallas Ry. & Terminal Co. v. Bosher, Tex.Civ.App., 278 S.W.2d 357; Alexander v. Appell Drilling Co., Tex.Civ.App., 290 S.W.2d 377.

Applying these well-established principles of law to the facts in this record, we find that the testimony of the witnesses, the reasonable inferences to be drawn therefrom, the physical facts as demonstrated by the photographs, all are sufficient to not only justify the submission of the issues on “lookout” to the jury but is sufficient to justify the answer of the jury thereto. Paschall said that he was looking at the Arrington automobile as he attempted to pass it and that Arrington made a sudden left turn into his lane of traffic. Arrington said that he did not make a sudden turn but made an angling turn. The jury was certainly justified in drawing its own conclusions as to the conduct of both parties. The jury would have been justified in concluding that Paschall, in passing another vehicle, should have kept a better watch on Arrington’s movements. The jury was justified in believing that Arring-ton made an angling turn, rather than a sudden turn, as contended by Paschall. The point of impact both on the highway and on the automobiles, was in conflict in the testimony. In the light of this record, the trial court erred in setting aside the jury’s answer to special issues Nos. 13 and 14, and rendering judgment for appellees.

We next turn to a consideration of ap-pellees’ cross-points one through seven, wherein appellees seek to reverse and remand the trial court’s judgment for a new trial. At the threshold of our consideration of these cross-points we are met with appellants’ contention to the effect that ap-pellees, having moved the court below to enter the judgment which was entered, are in a position of having waived any objections thereto.

We are unable to agree with appellants. The situation here is different from that demonstrated by the various authorities cited by appellants. Appellees filed their motion by virtue of Rule 301, T.R. C.P., asking the Court to set aside the findings of the jury to special issues, and render judgment based upon the remainder of the verdict. This is a far different situation from that in which the moving party requested the Court to enter judgment based upon an ordinary verdict of the jury. The Court in sustaining appellees’ motion to disregard the jury findings, performed a judicial function. Having done so, nothing remained for the court to do other than the ministerial function of rendering judgment based upon the remainder of the verdict. We cannot believe a party who takes advantage of the provisions of Rule 301, T.R. C.P. may be said to be thereafter penalized by being deprived of his rights to vomplain of the only judgment that could be rendered by the Court. Moreover, Rule 324, T.R. C.P. specifically authorizes cross-assignments of error in cases of this kind. Accordingly, appellants’ objection to our consideration of appellees’ cross-assignment is overruled.

By their first and second cross-points appellees contend that the evidence is insufficient, or contrary to the overwhelming weight and preponderance of the evidence, to support the submission or jury answer to special issues Nos. 13 and 14. These points, contrary to the “no evidence” point of appellants, requires us to apply the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. That which we have already discussed' concerning the status of the testimony in considering appellants’ point is equally applicable here. In addition, we have carefully studied the entire record and have concluded that there was sufficient evidence to justify the submission of issues Nos. 13 and 14 and that the answer of the jury thereto is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong. Appellees’ first and second cross-points are therefore overruled.

By their third, fourth, fifth and sixth cross-points appellees contend that the jury’s answers to the damages sustained by Dr. Paschall and his wife are not supported by sufficient evidence, and therefore manifestly too small, or that they are contrary to the great weight and preponderance of the evidence, and therefore manifestly too small. Having carefully reviewed the entire record in connection with the damage issues complained of we are unable to agree with appellees. We do not deem it necessary to review all of the testimony, but content ourselves with the statement that, as in most cases of damages for personal injuries, the evidence is such as would justify the jury in rendering the findings complained of by appellees. The jury heard the testimony of both lay and medical witnesses, observed their demeanor and conduct on the witness stand, and having carefully weighed the testimony returned their finding to the court. It is elementary that the credibility of witnesses and the weight to be given their testimony are questions for the jury. This is especially true with respect to the testimony of parties or other persons interested in the litigation. Tex. Digest, Trial ^140(1) and 140(2), and cases there cited. Matters of future medical expense, future loss of earnings, and future pain and suffering, are necessarily speculative and it was peculiarly within the province of the jury to resolve these matters and to set the amount of such damages. Hunt v. Joske Bros. Co., Tex.Civ.App., 300 S.W. 201. Appellees’ cross-points three through six, having been carefully considered, are overruled.

Appellees’ seventh cross-point reads: “In the event the Court does not grant appellees a new trial for the reasons stated, then appellees would show that the answers of the jury were based upon misconduct and this cause should be remanded to the trial court so the trial court may then pass on a motion for new trial based upon jury misconduct.” We must sustain this cross-point. Rule 324, T.R.C.P., as amended 1957; Hughes, Inc. v. Moran, Tex.Civ.App., 325 S.W.2d 829. The judgment is reversed and remanded to the trial court with instructions to render judgment for the defendants. After judgment is rendered the plaintiffs may file a motion for new trial based on jury misconduct, as requested in their seventh cross-point of error.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: WERLEIN, Justice. COLEMAN, Justice BELL, Chief Justice

license: Public Domain

text:
    R. E. SMITH et al., Appellants, v. W. W. McMILLAN et al., Appellees.
    No. 13815.
    Court of Civil Appeals of Texas. Houston.
    Nov. 30, 1961.
    Rehearing Denied Jan. 18, 1962.

      Hofheinz, Sears, James & Burns, Houston, Will Sears, !W. Ervin James, Houston, of counsel, for appellants.
    Bell & Singleton, John V. Singleton, Jr., Otto A. Yelton, Jr., Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by R. E. Smith and Ray Hofheinz, appellants, against ap-pellees for specific performance of a contract of sale of land in Brazoria County, Texas. Appellees filed a cross-action against appellants, praying that the contract be declared null and void. Trial was without a jury. After appellants rested, appel-lees moved for judgment on the ground that the undisputed evidence showed as a matter of law that appellants had failed to make an adequate tender of performance as a condition precedent to the relief sought by them.

The trial court rendered judgment that appellants take nothing against appellees, and declared the contract of sale null and void.

In order to obtain a clear understanding of the issues involved, the agreement of the parties dated August 24, 1959 must be carefully examined. In such agreement appel-lees contracted to sell and appellants to buy all of the property owned or claimed by ap-pellees in Section 76, H. T. & B. R. R. Co. Survey, Abstract No. 562; Section 77, H. T. & B. R. R. Co. Survey, Abstract No. 302; Section 1, A. C. H. & B. Survey, Abstract No. 403; Section 2, A. C. H. & B. Survey, Abstract 566.

The contract provides that notwithstanding the enumeration by section and abstract numbers set out above, it is the intention of the sellers to sell to the purchasers all of the tracts of land owned or claimed by them in the over-all parcel of lands centering upon said Section 77, whether contained within the foregoing sections or not; that sellers will convey the surface and mineral estate in and to all of such lands by general warranty deed subject to a trust lien held by the Bank of the Southwest National Association, excepting, however, from the mineral estate such outstanding royalty and mineral interests as are shown of record, and excepting from the conveyance and warranty the rights, if any, existing under a conveyance for canal purposes.

The contract provides for a consideration of $525,000.00, and that upon final closing of the transaction, the purchasers will assume said trust lien and after deducting the pro rata portion of taxes for the year 1959 and other closing costs “hereinafter set forth chargeable to sellers,” purchasers will pay to sellers in cash the difference between the total amount of assumed principal and accrued interest, and the over-all price of $525,000.00. The agreement also provides for an adjustment in price at the rate of $443.42 per acre should there be more or less than 1184 surface acres in the over-all parcel of lands.

Paragraphs 6 and 7 of the agreement are as follows:

“6. Sellers agree to furnish the Purchasers an abstract of title covering the above described lands from the sovereignty of the soil to a current date, which abstract shall be furnished without delay and within a reasonable time from and after the date of this agreement, and which abstract of title, upon examination, will show a good and merchantable title in the Sellers as represented in Paragraph 2 hereof, to the satisfaction of Purchasers’ attorneys. Within a reasonable time after delivery of such abstracts, Purchasers will either accept the title as good and merchantable as herein set out or will furnish to the Sellers the written title opinion of Purchasers’ attorneys, stating objections to the title, whereupon Sellers shall have a reasonable time to clear the objections, at Sellers’ sole cost and expense, and show a good and merchantable title as aforesaid. In the event of the failure of the Sellers to furnish a good and merchantable title satisfactory to Purchasers’ attorneys, the Escrow Agent shall, upon Purchasers’ demand, return to Purchasers the $25,000.00 earnest money whereupon this contract shall be cancelled; or Purchasers may enforce specific performance of this contract; or, in the event of Sellers’ failure to meet and cure objections to the title, Purchasers may demand and take title subject to such objections and shall be thereupon entitled to charge the Sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired.
“7. Not later than thirty (30) days from and after the delivery of all curative instruments necessary to show' a good and merchantable title to the satisfaction of Purchasers’ attorneys, or thirty (30) days after acceptance by Purchasers’ attorneys of the title as shown in the abstract as good and merchantable, the Sellers agree to deliver a good and sufficient General Warranty Deed (subject to the exceptions set out above) in form satisfactory to the Purchasers properly conveying the lands herein contracted to the Purchasers; and upon the delivery of such deed, Purchasers agree to pay the consideration by assumption and cash payment as set out above. At the time of such closing, the Sellers will be charged with their prorated portion of taxes for the year 1959, with the cost of Federal revenue stamps, and with abstract and title costs (including cost of curing title.) * * * ”

The survey of the property established that there was a total gross acreage covered by the agreement of 1202.825 acres which included 18.408 acres in County Roads, 18.76 acres in Houston Lighting & Power Company easement, 4.28 acres in Dow Chemical Company easement, .20 acre in Trunkline Gas Company easement and 17.08 acres in a rice canal easement. In addition the survey showed a probable vacancy of 36.203 acres, and that approximately five acres of the Houston Lighting- & Power Company easement was included in and was a part of such vacancy.

The title opinion of appellants’ attorney, delivered to appellees on November 23, 1959, listed 25 objections to the title. Thereafter, both appellants and appellees undertook to clear up and satisfy some of such objections. On January 6, 1960, appellants’ attorney wrote a supplemental title opinion, which the court erred in excluding, showing the objections that had been satisfied and the defects in the title which had not been cured.

On February 29, 1960, the sale had not been consummated because there were several defects in the title which appellees had failed to cure. On that date appellants elected to take the title subject to unsatisfied objections, in accordance with Paragraph 6 of the agreement. In their letter of that date they advised appellees that they had sent to the escrow agent, Houston Bank and Trust Company, for execution by appel-lees, a general warranty deed covering 1184.417 acres, being the entire acreage surveyed less 18.408 acres' excluded because in county road easements, and they tendered appellees the purchase price for such acreage in the sum of $525,184.90, less the Bank of the Southwest lien, the cost of the survey, the County Clerk’s filing fees, costs of certified copies, Federal documentary stamps, and $27,898.12 which they stated was the reasonable cost and expense of curing and clearing title.

The $27,898.12 deducted.from the amount tendered included $16,093.04 for the 36.293 acres in the vacancy at the rate of $443.42 per acre. There was also deducted $1500.00 as reasonable and necessary charges, including attorney’s fees, court costs and miscellaneous legal costs to cure certain objections to the title. $10,305.08 was deducted to cover the 23.24 acres within the Dow Chemical Company, Trunkline Gas Company and Houston Lighting & Power Company easements.

Thereafter, on March 18, 1960 appellees advised appellants that the tender made by them was insufficient, stating that no value was allowed or placed upon the alleged vacancy included in the deed; the $1500.00 charge for the cost of curing title was utterly ridiculous; no value was allowed or placed upon the acreage covered by the easements included in the deed, and the tender was not in accordance with the terms of the contract. Appellees further advised appellants that since the tender in said letter of demand dated February 29, 1960 was insufficient they had decided, without waiving any of their rights, to treat such insufficient tender as a manifestation on the part of appellants to rescind the contract, and that if they were mistaken in so construing said letter, they themselves rescinded the contract by reason of appellants’ insufficient tender.

The parties hereto do not contend that there is any ambiguity in the contract in question. It is appellants’ contention that under the contract they had the right in making their tender to deduct from the amount tendered the value of the acreage in the vacancy and in said easements at the full rate of $443.42 per acre, although they included such acreage in the general warranty deed which they demanded that appellees execute. They also contend that they had the right to deduct the $1500.00 as reasonable and necessary charges to take care of anticipated curative work.

Appellees, on the other hand, take the position that they were not required to execute a general warranty deed to any acreage for which they were not paid the contract price of $443.42 per acre. They also contend that appellants were deducting twice for five acres included in both the Houston Lighting & Power Company easement and in the vacancy. They further contend that appellants had no right to deduct from the amount tendered the $1500.-00 representing the reasonable and necessary costs of curing defects in the title since no costs had been incurred. It is their contention that they should be paid for the number of acres included in the general warranty deed, and if their title fails to any of such acreage appellants may recover from them upon their warranty.

Paragraph 6 of the agreement gives appellants, upon appellees’ failure to furnish a good and merchantable title satisfactory to the purchasers’ attorneys, the right to demand the $25,000.00 earnest money and treat the contract as cancelled, or enforce specific performance of the contract, or in the event of sellers’ failure to meet and cure objections to the title, to demand and take the title subject to such objections and charge the sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired. Appellants chose to demand and take title subject to title objections, and to charge the sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired. However, they sought to deduct $1500.00 which they estimated would be the reasonable cost and expense of curing the title before they had expended such amount. The contract does not give them the right to do so. The evidence shows that a suit may or may not become necessary to cure the title. Until the expense has been incurred, no one can determine the amount or reasonableness thereof. The contract does not provide that appellants may deduct the reasonable cost and expense of curing and perfecting the title, but that they may recover such costs.

Appellants contend, however, that Paragraph 7 of the agreement gives them the right to deduct such reasonable cost and expense at the time of closing. The sentence they rely upon is as follows: “At the time of such closing, the Sellers will be charged with their prorated portion of taxes for the year 1959, with the cost of Federal revenue stamps, and with abstract and title costs (including cost of curing title).”

It will be noted that Paragraph 7 has to do with the situation where not later than thirty days from and after the delivery of all curative instruments necessary to show a good and merchantable title to the satisfaction of purchasers’ attorneys, or thirty days after acceptance by purchasers’ attorneys of the title as shown in the abstract as good and merchantable, the sellers agree to deliver a good and sufficient warranty deed conveying the land. Curative instruments were not delivered showing good and merchantable title to the satisfaction of purchasers’ attorneys, and title was never accepted as good and merchantable. The provision “(including the cost of curing title)” has reference to costs that have been incurred at the time the purchasers accept the title as good and merchantable. The provision in Paragraph 3 of the agreement with .respect to closing costs may be construed as referring to costs mentioned in Paragraph 7, but such provision clearly includes only costs incurred at the time purchasers take title to the property. It does not authorize the purchasers to deduct from the purchase money anticipated costs that may or may not be incurred in curing title defects.

Appellants’ counsel in his title opinion, which was admitted subject to being later stricken, and which was later stricken from the record, showed a probable vacancy of some 36 acres in the over-all parcel of lands centering upon Section 77. The court refused to permit counsel to testify as to his positive opinion from what the surveyor found on the ground that a vacancy actually existed. In striking the title opinion and in excluding such testimony the court erred. Under the terms of the agreement it was necessary for appel-lees to show a good and merchantable title to the property to the satisfaction of appellants’ attorney. The law is well settled that such provision must be given effect and that a purchaser will not be required to take title which his 'attorney finds defective, so long as the attorney’s failure to approve the title is not arbitrary or in bad faith. Dixie Oil Co. v. McBurnett, Tex. Com.App.1928, 6 S.W.2d 83; City of Amarillo v. W. L. Slayton & Co., Tex.Civ.App., 208 S.W. 967; Campbell v. Hart, Tex.Civ.App., 256 S.W.2d 255, writ ref., n. r. e., 1953.

The agreement clearly states that the over-all consideration of $525,000.00 is subject to the agreement and understanding of the parties that 1184 surface acres are contained within the over-all parcel of lands to be conveyed, and provides:

"Should it be determined upon examination of abstracts of title that the Sellers do not own 1,184 surface acres, or should it be determined that the overall parcel of lands actually contains less than 1,184 or more than 1,184 acres by survey upon the ground, conducted by a Licensed State Land Surveyor selected by the Purchasers, at Sellers’ cost, the final cash consideration to be paid shall be adjusted at the rate of $443.42 per acre, such sum to be deducted for acreage short of 1,184 acres, or added for acres in excess of 1,184 acres.”

The over-all parcel of lands in round figures contains 1184 acres (excluding the roads), but including the alleged vacancy. Appellants contend that appel-lees do not own the 36 acres in the vacancy, but merely have a claim thereto and a prior right to obtain a patent from the State to such acreage. We are not un-mindfhl of the rule that ownership of the land by vendor at the time suit is brought for specific performance of a contract of sale is ordinarily essential to the mainte.nance of such. suit. Clifton v. Charles, 1909, 53 Tex.Civ.App. 448, 116 S.W. 120, error ref.; Blair v. Lowrey, Tex.Civ.App. 1914, 164 S.W. 14; Redwine v. Hudman, 1911, 104. Tex. 21, 133 S.W. 426. The present case does not fall within such rule since the sellers in this case agree to sell and the purchasers to buy not only what the sellers own but what they claim in the over-all parcel of lands. This provision gives appellants the right to insist that the acreage in the vacancy be conveyed to them. Since, however, their attorney in his opinion states that appellees’ title to the vacancy is not good and merchantable, appellants cannot be required to accept a conveyance to such acreage.

The opinion of appellants’ attorney as to the title must be taken as controlling in determining whether appellants may be required to accept title to the vacancy. Dixie Oil Co. v. McBurnett; City of Amarillo v. W. L. Slayton & Co.; Campbell v. Hart; supra. Such opinion, however, is np substitute for an adjudication of legal title or ownership for all purposes, even though the opinion is given in the utmost good faith. It is not unusual for attorneys to disagree as to what does or does not constitute a good and merchantable title to land.

Appellants assert that since their attorney in good faith has pronounced the title to the vacancy bad they may deduct $443.42 for each acre in the vacancy and at the same time have such acreage included in the general warranty deed since appellees claim such vacancy. We do not agree. Appellants have a perfect right to refuse to accept a deed to such acreage and deduct from the over-all consideration $443.42 per acre therefor, but they cannot take the title to the land by general warranty deed and at the same time deduct for the acreage in the vacancy. If they could do this, it might well be that they would get the acreage in the vacancy for nothing. They may never be evicted from such acreage by the State and they may be able to settle with the State for much less than the per-acre valuation.

Appellees’ claim to the vacancy and their prior right to secure a patent thereto, as well as the privity of estate with respect to claims of limitation and adverse possession which would result from the conveyance, are not without value. We do not think the parties to the contract ever contemplated that a claim of such nature should be included in the deed without payment therefor. The contract of sale which was drawn up by appellants does not provide that any part of the consideration can be deducted for acreage which is included in the deed. If such was appellants’ intention, they should have so provided in no uncertain language. As stated by Chief Justice Gaines in Amory Mfg. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 37 S.W. 856 (1896):

“The rule is elementary that if a written contract, when viewed as a whole, and in the light of the attendant circumstances, reasonably admits of two constructions, that one is to be adopted which is least favorable to the party whose language it is.”

Furthermore, the contract provides that “ * * * it is the intention of the Sellers to sell to the Purchasers all of the tracts of land owned or claimed by them. * * * ” We think the word “sell” connotes a sale and not a gift. True, Paragraph 4 of the contract provides that should it be determined that the sellers do not own 1184 acres the cash consideration shall be adjusted at the rate of $443.42 per acre, such sum to be deducted for acreage short of 1184 acres. Such provision cannot reasonably be construed ■ to mean that there can be a deduction for land claimed by sellers when such land is included in the deed at the instance of the purchasers. Appellants elected to take the title subject to the objections of appellants’ attorney. This they must do. If the title fails or if it is later adjudicated that appellees do not own the acreage in the vacancy, or in the event it is necessary to cure certain title defects, appellants “shall be thereupon entitled to charge the Sellers and recover from them the reasonable cost and expense of curing and perfecting the title so acquired.”

The acreage in the easements was also included in the general warranty deed but without allowing anything therefor, except the per-acre price for the acreage in the canal easement. The easements constitute encumbrances upon the land, but do not result in a deficiency in the acreage owned by appellees. Bonzer v. Garrett, Tex.Civ.App., 162 S.W. 934, error refused, 1914. It was proper to include in the deed the acreage in the easements, but no deduction from the purchase price should have been made by appellants for such acreage. It is our view that appellants are required to pay for such acreage and then later recover from appellees because of the encumbrances such damages or curative costs as may be reasonable and equitable.

Appellants contend that they were at no time in default and that, therefore, appel-lees had no right to rescind the contract, and that the court erred in declaring the contract to be of no effect. There is no provision in the contract expressly giving appellees the right to rescind it other than that contained in paragraph 8 of the agreement, which provides:

“Should the Purchasers fail to con-' summate this contract as specified herein for any reason except the failure of the Sellers to deliver a good ■ and merchantable title satisfactory to the Purchasers’ attorneys as herein provided, the Sellers ' shall have the election to cancel and .rescind this contract, retaining the $25,000.00 earnest money as liquidated damages for Purchasers’ breach thereof, or Sellers may enforce specific performance of this contract as against the Purchasers.”

It will be noted that appellees did not undertake to retain the $25,000.00 earnest money. It is manifest that they do not contend that the purchasers failed to consummate the contract for any reason except the failure of sellers to deliver a good and merchantable title satisfactory to the purchasers’ attorneys. Appellees assert, however, that they had the right to rescind the contract because of the delay in closing the transaction and also because of the inadequate tender made by appellants.

Appellees were at least as much responsible as appellants for the delay in closing the transaction. They were in no position to rescind because of delay. Nor were they in a position to rescind because of the inadequacy of appellants’ tender, since they were clearly in default by refusing to perform their part of the contract with respect to curing certain title defects. In submitting the deed and taking the deductions in question, as set out in their letter of February 29, 1960, appellants were merely setting out their interpretation and understanding of the contract and their rights thereunder. Such letter cannot be construed as a rescission of the contract by appellants, nor do we think it can be construed as a final, unequivocal and absolute refusal on their part to perform the contract in its entirety. It provides for certain adjustments or prorations to be made and changes in the amounts which appellants would pay. It is in the nature of a demand that appel-lees, who were in default and who continued to be in default, perform their part of the agreement in connection with curing title defects and execute a deed of conveyance as they were required to do when appellants elected to take the title subject to objections. Such letter did not give appellees the right to rescind the agreement.

In .reply to the letter of February 29, 1960, appellees wrote their letter of March 2, 1960, which the court erred in excluding, clearly indicating that they thought the matter of settling the transaction could be satisfactorily disposed of by agreement of the parties and the transaction closed within a dr.y or two. This letter should have been admitted in evidence as it has an important bearing upon waiver on the part of appellees of any default on the part of appellants, in the event their letter of February 29, 1960 can be construed as placing them in default. Appellees’ letter of March 18, 1960, addressed to appellants, in effect states that if the appellants’ letter of February 29 was not intended as a rescission of the contract, then appellees elected to rescind the same “by reason of your breach thereof and insufficient tender of consideration thereunder.” In such-letter appellees did not state what payment they would demand for execution of the deed, although they did complain that n& amount had been allowed for the vacancy or the acreage in the easements, and asserted that the $1500.00 charged by purchasers was ridiculous. It was their responsibility as sellers to furnish a proper-deed conveying the property, if dissatisfied with the deed presented by appellants, or-at least to give appellants notice of an intention to rescind prior to rescission in, view of the letter of March 2, 1960. Instead of doing so, they undertook to rescind the contract of sale. By such action they clearly indicated their intention not to be bound by the contract, thereby relieving appellants from making any further tender prior to suit.

Since appellees were in default, they-neither had the right to rescind the contract nor to take advantage of appellants’' alleged insufficient tender. In Burford v. Pounders, 1947, 145 Tex. 460, 199 S.W.2d 141, 143, our Supreme Court quoted with approval the following statement in 49 Amer.Jur., under the title “Specific Performance”, § 144, p. 167:

‘Whatever difference of opinion there may be as to the necessity of tender of performance before suit, when the defendant is not in default, it is clear that a tender is unnecessary-if the defendant repu>diates the contract before suit, or it appears that he would have refused the tender if it had been made. * * * If the defendant puts himself in an attitude of default, resists the performance, and' insists that he is not bound by the con tract, tender to him is unnecessary. * * * Consequently, all that is required in such case is that the plaintiff place himself in favor with the court, and this may be done by a proper offer in the pleadings.’ (Italics ours).”

See also Young v. Fitts, 1942, 138 Tex. 138, 157 S.W.2d 873; Haney v. Clark, 65 Tex. 93, 1885; 91 C.J.S. Vendor and Purchaser § 134, p. 1071.

Under the circumstances of this case appellants had the right to file and prosecute their suit for specific performance. In their petition they alleged that they had •offered to do and perform and had at all times since February 29, 1960, been ready, .able and willing to do and perform each and every obligation required of them by the contract of sale, and had tendered performance under said agreement to appel-lees, and that they were ready, able and willing to pay to appellees the full and complete amount of the purchase money in full accordance with, the sale agreement .and to do complete equity as between the •parties. In connection with such tender they deposited in court the sum of $336,-038.10 which they considered the amount owing, but they pleaded that “ * * * in the event the Court for any other reason determines that any further sum is due to Defendants under the sale agreement, 'Plaintiffs stand ready, willing and able and 'here and now offer to deposit such further sum in court or pay the same to the Defendants, as the Court may order.” Clearly the tender was not limited to the .amount deposited.

Generally specific performance, when permissible under a contract, will be granted when it is apparent that it will subserve the ends of justice and not result in injustice or hardship to either of the parties. Fisher v. Wilson, Tex.Civ.App., 185 S.W.2d 186, 190, aff’d 1945, 144 Tex. 53, 188 S.W.2d 150. Since the action for specific performance is one in equity, the court may refuse relief if the evidence shows that the granting of relief would work hardship. The plaintiff in seeking equity must offer to do equity. The trial court may condition relief in such manner as to require it.

We are of the opinion that the court erred in excluding the letters between the parties relating to the tender and the negotiations between the parties with respect to curing title defects, and also in striking out the title opinion of appellants’ attorney. We shall not discuss such errors at length because they will not likely arise upon another trial of the case.

It is apparent that the trial court tried the case on the theory that it was necessary as a condition precedent to relief in the nature of specific performance, for appellants to have tendered the exact amount that might be due under the contract as a condition to maintaining the suit, regardless of the title objections made by appellants’ attorney and despite appellees’ failure and refusal to cure a number of such objections. In so doing the court excluded much of appellants’ evidence that should have been admitted, with the result that the case was not fully developed and must be retried.

Reversed and remanded.

COLEMAN, J., concurring, BELL, C. J., dissenting.

COLEMAN, Justice

(concurring).

Except as herein pointed out, I concur in the opinion written by Associate Justice WERLEIN and in his decision that the case should be reversed and remanded for a new trial.

Appellants seek specific performance of the contract under the provision giving them the right to demand a deed subject to defects in title. Assuming that by making this election appellants waived the provisions of the contract the violation of which had placed appellees in default, still appellants had not refused to perform their obligations under the contract. While the tender which they made at the time of election was insufficient, it merely represented their construction of the contract and constituted a demand for performance rather than a refusal to perform. While by the general rule a sufficient tender is necessary before bringing suit for specific performance, such a tender is excused where the other party to the contract without default on the part of the plaintiff has refused to perform. 81 C.J.S. Specific Performance § 97, p. 617. Here appellees have refused to ■ perform by attempting to rescind the contract. The real question to be determined is whether or not appellees had a right to rescind. If they had no such right, the tender which appellants made in their pleadings is sufficient. Without undertaking to determine whether or not a right to rescind exists in this case, it is sufficient to state that the contract does not specify any ground for rescission on the part of sellers, other than failure on the part of the purchasers to consummate the contract. The record does not show as a matter of law such a failure.

“Under the common law and statutes which prescribe the right, one party to a contract may, subject to certain limitations hereinafter stated, terminate or rescind it, because of the substantial nonperformance or breach of the other. The right to rescind, is an extreme one and does not arise from every breach, and the general rule is that rescission will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement. So a mere dispute as to the manner of performance resulting from a misunderstanding which is not persisted in, or the assertion of an unfounded or illegal claim pending performance is not sufficient to justify a rescission, * * (17 C.J.S. Contracts § 422, pp. 906, 907.)

Whether or not the right to rescind exists in this case is a question of fact to be determined by the trial court.

I do not agree with that portion of the opinion of Justice WERLEIN with which Chief Justice BELL agrees, reading: “The contract of sale which was drawn up by appellants does not provide that any part of the consideration can be deducted for acreage which is included in the deed.” Since this is a substantial question which will arise on a new trial, I consider it necessary to discuss the matter at length. This is purely a matter of the construction to be given those provisions of the contract reading as follows:

“1. Subject to the following terms, conditions and stipulations, Sellers have agreed to sell and Purchasers have agreed to buy all of the follow-xng ¡ ⅜ ⅜ ⅝
“Notwithstanding the enumeration by section and abstract numbers set out above, it is the intention of the Sellers to sell to the Purchasers all of the tracts of land owned or claimed by them in the overall parcel of land * * * (emphasis supplied)
“2. The Sellers will convey the surface to all of such lands by general warranty deed * * * (emphasis supplied).
“3. In consideration for such sale and conveyance, Purchasers have agreed to pay to the Sellers the sum of $525,000.00, subject to the terms and stipulations contained in this agreement, * * *
“4. The overall consideration of $525,000.00 is subject to the agreement and understanding of the parties that 1,184 surface acres are contained within the overall parcel of lands to be conveyed under this agreement. Should it he determined upon exam ination of abstracts of title that the Sellers do not own 1,184 surface acres, or should it be determined that the overall parcel of lands actually contains less than 1,184 acres or more than 1,184 acres by survey upon the ground * * * the final cash consideration to be paid shall be adjusted at the rate of $443.42 per acre * *” (emphasis supplied).

The contract plainly provides that all of the land owned or claimed by sellers in the area described in the contract should be conveyed by them to the purchasers by general warranty deed for a consideration of $525,000.00. Obviously the words “owned” and “claimed” are not synonymous. In this context the word “claimed” was used in contrast to the word “owned” and refers to lands within the description, title to which was not demonstrated by the abstract of title and curative material. The land which purchasers contend to be a vacancy lies within the general description and is claimed by sellers. Purchasers have a right to demand that it be conveyed to them.

The purchase price is a lump sum, but sellers have agreed that should it be determined upon examination of the abstracts of title that sellers do not own 1,184 acres, a deduction from the gross price may be made. Some effect must be given to this clause different from that given to the following clause relating to acreage shown by survey on the ground. It seems clear that this provision means that a reduction of the purchase price should be made if the record title to a portion of the land is not good in the opinion of the examining attorney.

The sale was in gross and not per acre or by tracts. The contract recites that the price was arrived at by valuing the land and the improvements separately. The amount to be deducted is the pro rata price per acre figured on the total purchase price without regard to the amount agreed as the value of the improvements. There is no prayer for reformation of the contract or plea of fraud, illegality or overreaching. The parties reached an agreement and do not now contend that it is ambiguous. The purchasers should be permitted to deduct from the purchase price the agreed amount per acre for the acreage in the claimed vacancy in the absence of proof of bad faith on the part of the examining attorney.

In the absence of proper pleadings and evidence warranting a reformation of the contract, this Court should not grant such relief by a strained construction of the provisions of the contract.

BELL, Chief Justice

(dissenting).

Being unable to agree with my Associates that the trial court’s judgment should be reversed, I respectfully enter my dissent.

I am in accord with Associate Justice WERLEIN in the construction he has given the contract of purchase, that is, that since appellants elected to take title subj ect to the obj ections to title, they must pay for all acreage to be conveyed by the general warranty deed. The part of the contract giving appellants the right to deduct $443.42 per acre would apply only if appellants elected not to include certain acreage in the deed to which appellees, in appellants’ attorney’s opinion, had no marketable title.

The only portion of Associate Justice WERLEIN’s opinion with which I disagree is where he holds that since appellees were in default in not being able to give a good and merchantable title they could not complain of the failure of appellants to make a sufficient tender. I do not disagree with the rule that holds default by the seller will excuse tender by the purchaser. I just think under the facts of this case the rule is inapplicable. Appellees were in default in failing and refusing to make title good. Appellants could have rescinded the contract. They chose, however, not to resort to such provision in the contract. They chose rather to exercise their right to take title subject to the objections. When they did this they waived appel-lees’ default. They were then obligated to make tender of the full purchase price less the amount of the lien in favor of Bank of the Southwest, surveyor’s fees, documentary stamps and any reasonable expense they had incurred in an effort to cure title. They were relegated to a recovery, after conveyance, of the reasonable cost and expense of curing title, and, if they were unable to cure title, they could recover on their warranties.

I am also of the view that the record supports without question that appellees were ready and willing to execute a general warranty deed to all the land if appellants would pay them for all the land. It was unnecessary for appellees to prepare a different deed. They would execute the one presented by appellants upon proper tender.

I would affirm the judgment of the trial court.


author: DAVIS, Justice.

text:
    Waymon G. PEAVY et al., Appellants, v. Travis WARD, Appellee.
    No. 7402.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1962.
    Rehearing Denied Jan. 23, 1962.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.

      Moore & Holland, Athens, Dawson & Dawson, Corsicana, Spruiell, Lowry, Potter, Lasater & Guinn, Wilson, Miller, Spivey & Steger, Tyler, for appellee.
   DAVIS, Justice.

This is a venue case. Travis Ward, plaintiff-appellee, sued Fairway Oil and Gas Co., Inc., Thomas W. Clay and John E. Protho, (officers of Fairway), Wayne G. Peavy, Greenbrier 60 Limited, and Greenbrier 61 Limited, limited partnerships in which Peavy is a general partner, defendants in the District Court of Anderson County, for the cancellation of a certain undivided one-sixteenth interest in an oil, gas and mineral leasehold situated in Anderson and Henderson Counties. The defendants filed pleas of privilege. Fairway wanted the case moved to Smith County. Peavy and Greenbrier 60 and Greenbrier 61 wanted the case moved to Dallas County. The plea of privilege to be sued in Dallas County was filed on June 19, 1961. The plea of privilege by Fairway was filed on June 20, 1961. Before time to controvert the pleas of privilege, the plaintiff, on June 28, 1961, took a non-suit.

The plaintiff then filed the same suit against the defendants in the District Court of Smith County. Fairway filed an answer. The defendants-appellants, Peavy and Greenbrier 60 and Greenbrier 61, filed a joint plea of privilege to be sued in the District Court of Dallas County. The appellants take the position that the question of venue had been determined by reason of the appellee taking a nonsuit in the Anderson County case while the pleas of privilege were pending. The trial court overruled the plea of privilege of the appellants and they have appealed.

The appellants bring forward one point of error. It reads as follows:

“The trial court erred in overruling Appellants’ plea of privilege, which was valid as a matter of law because of Appellee’s previous voluntary dismissal of his suit upon the same cause of action in Anderson County at a time when Appellants had pending a plea of privilege asserting their .right to be sued in Dallas County.”

The case is to be decided upon a question of law. The facts in the case were stipulated before the trial court. The attorney for the appellant in the trial court, in connection with the stipulation, made the following statement:

“In other words, Your Honor, the net effect of our stipulation is that as far as the facts go, Mr. Dawson would be able to establish prima facie case as to — as pleaded, and the point that we are reaising here is that assuming there would otherwise be venue in this County, our position is based on the legal effect of the proceedings in Anderson County. And that is what we want to go into here.”

It is admitted in their briefs, and was admitted on oral argument, that if the pleas of privilege had been contested in Anderson County, the Judge in that county could have sustained the pleas of privilege and sent the case against all the defendants to either Smith or Dallas County. Appellants take the position that the appel-lee, by taking a nonsuit in Anderson County thereby waived his .right to sue them jointly in Smith County. Appellants rely upon the following cases: Roach v. Trinity Universal Ins. Co., Tex.Civ.App., 119 S.W.2d 127; Morse v. Scott, Tex.Civ.App., 130 S.W.2d 1041; Clifton v. Price, Tex.Civ.App., 88 S.W.2d 783; First Nat. Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215; Robinson Truck Lines v. Kerksey, Tex.Civ.App., 219 S.W.2d 844; H. H. Watson Co. v. Cobb Grain Company, Tex.Com.App., 292 S.W. 174; Humble Oil and Refining Co. et al. v. Pettaway, Tex.Civ.App., 76 S.W.2d 1069; Royal Petroleum Corporation et al. v. McCallum, Judge et al., 134 Tex. 543, 135 S.W.2d 958; Picadilly Cafeteria of Waco, Inc. v. Lee, Tex.Civ.App., 301 S.W.2d 228; Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; Johnson v. First National Bank of Brenham, Tex.Civ.App., 42 S.W.2d 870; Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; International Harvester Company et al. v. Stedman, 159 Tex. 593, 324 S.W.2d 543; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Miller v. Matthews, Tex.Civ.App., 176 S.W.2d 1011; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Rogers v. Fort Worth Poultry & Egg Company, Tex.Civ.App., 185 S.W.2d 165; Fair et al. v. Mayfield Field & Grain Co., Tex.Civ.App., 203 S.W.2d 801; Kennell v. Knox, Tex.Civ.App., 221 S.W.2d 1020; Leavell v. Lincoln County Mut. Fire Ins. Co., Tex.Civ.App., 243 S.W.2d 223; City of Gilmer v. State of Texas ex rel. Southwestern Gas & Elec. Co., Tex.Civ.App., 281 S.W.2d 109; Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616; Cockburn Oil Corp. v. Newman, Tex.Civ.App., 244 S.W.2d 845; York Supply Company v. Dunigan Tool & Supply Co., Tex.Civ.App., 276 S.W.2d 317.

It appears that the appellants are proper parties to the cause of action, and are necessary parties to the cancellation allegations. Montgomery v. Owen, Tex.Civ.App., 37 S.W.2d 1107, and Peoples’ Nat. Bank of Tyler v. Montgomery, Tex.Civ.App., 37 S.W.2d 1111, n. w. h. Cases holding that co-defendants claiming an interest in property under instruments executed to defendants subsequent to the instrument on which the plaintiff sued are necessary parties are: Smith et al. v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744; Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Campbell v. McFadden, 9 Tex.Civ.App. 379, 31 S.W. 436, err. ref.; Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454.

According to 1 McDonald, Tex.Civ.Prac-tice, Sec. 4.57 at p. 465, the cause charging a joint action growing out of joint liability, it seems that the plaintiff has the right to select the county to which he should be transferred. There, McDonald said:

“The courts have indicated that the action, if involving a claim which could have been litigated at the residence of the defendants against both of them under exception 4, the cause should he transferred as a whole to the domicile of either to he selected hy the plaintiff.” (Emphasis added.)

The following cases hold that the plaintiff has the right to choose the county to which a case should be transferred where pleas of privilege are contested: Burgess v. Adams, Tex.Civ.App., 273 S.W. 343, n. w. h.; Sherrod v. Rudd Mfg. Co. et al., Tex.Civ.App., 158 S.W.2d 351, n. w. h. See, also, 43-B Tex.Jur. 451-452, Sec. 179.

As pointed out in 1 McDonald, Texas Civil Practice, Sec. 4.62, at p. 471 the order of dismissal in Anderson County is not res judicata. And, McDonald says:

“ * * * (c) Where the plea was controverted, a venue hearing commenced, and before the court ruled pláintiff took a nonsuit.
“(d) Where the plea was controverted, but plaintiff took a nonsuit before the venue hearing commenced.
“(e) Where the plea was not con-' troverted, and plaintiff took a nonsuit after the time for controverting it ex- ■ pired.
“(f) Where the plea was not controverted, and plaintiff took a nonsuit before the time for controverting it expired.
“Strictly speaking, in situations (c) to (f), inclusive, it is hardly accurate to speak in terms of ‘res judicata/ Normally, the doctrine of res judicata applies only when there has been a final judgment upon the merits of the matter concluded. The rules here stated are grounded not upon a true application of that doctrine, hut rather :upon a principle of policy: the defendant should not be subjected to the repeated expense of presenting his venue claim in successive actions by a plaintiff who, through the abuse of his privilege of taking a nonsuit, prevents a final adjudication upon the question. In the sixth situation, it is particularly anomalous to refer to the matter as res judicata, since it makes the act of dismissal equivalent to a judgment upon the merits of the venue issue, despite the fact that the nonsuit is taken at a time when no judgment upon the merits of such issue could, over the plaintiff’s objection, be rendered.” (Emphasis added).

In this quotation, we find cited the case of Curtis Pub. Co. v. Mitchell, Tex.Civ.App., 92 S.W.2d 488, n. w. h., which is direct in point. In that case, Mary Mitchell, a feme sole, filed suit in Grayson County against •Curtis Publishing Company and other defendants. A plea of privilege was filed by Curtis Publishing Company on May 13, .1934, alleging Dallas County to be the place •of its residence. The day following, Mary Mitchell took a nonsuit. She had previously filed the same suit in Collin County. Curtis Publishing Company took the position that the filing of its plea of privilege entitled it to be sued in Dallas County, the -county of its alleged residence. The court in that case held that the suit was properly brought in Collin County.

Appellant takes the position that ■the appellee, regardless of whether the ap--pellees are necessary parties to the suit or not, has disposed of the case as though a final judgment was rendered against them. We do not believe such to be the law on the question of venue. Where there are necessary parties to a suit and the court sustains a plea of privilege, the court must transfer the suit as to all parties to the same county.

In another instance, where an effort was made to expand the scope of the rule is found in a later case of Wiley v. Joiner, Tex.Civ.App., 223 S.W.2d 539, n. w. h. In this case, the plaintiff filed his suit in the county where the accident occurred. Upon trial of the case, the jury apparently could not agree upon the verdict, and the plaintiff took a nonsuit. He later filed the case in the county of the domicile of the defendant. The defendant filed a plea of privilege contending that the first action had committed the plaintiff to litigate in the county in which it had first been filed. He took the position that the case should be transferred thereto. The court properly held that the plaintiff was not estopped after taking the nonsuit from bringing a new action at the defendant’s domicile.

The point of error is overruled, and the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Katherine KAISER et al., Appellants, v. Clara C. LOVE et al., Appellees.
    No. 3963.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1961.
    Rehearing Denied Jan. 4, 1962.

      McGowan, Godfrey, Logan & Decker, Warren W. Shipman, III, Ft. Worth, for appellant.
    Hugh D. Reed, Jr., Fairfield, for appellee.
   McDONALD, Chief Justice.

The question for determination is the estate that was granted in the deed, pertinent portions of which follow:

"county OF ROBERTSON } KNOW ALL MEN BY THESE PRESENTS:
“That we, F. R. and T. R. Collard, husband and wife, of the County of Robertson, State of Texas, for and in consideration of the sum of $1200. to us paid by B. F. Love, as follows: Cash,
“HAVE GRANTED, SOLD AND CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto the said B. F. .Love of the County of Robertson, Státe of Texas, all that certain tract or parcel of land * * * (description omitted), containing 593 acres of land more or less.
“But we, F. R. Collard and T. R. Collard do hereby reserve to ourselves all the oil and gas rights in the above tract of land hereby conveyed in the full terms as set forth in a oil and gas lease executed and entered into by B. F. Love, F. R. Collard, and T. R. Collard of the first part and - Breeding of the second part on the 18th day of February, A. D. 1915.
“TO HAVE AND TO HOLD The above described premises, * * *.
“WITNESS our hands at Wheelock, Texas, this 28th day of November, A. D. 1916.
“F. R. Collard, Sr.
“T. R. Collard.”
(Acknowledgments)

Plaintiffs are the heirs of B. F. Love, and defendants are the heirs of F. R. and T. R. Collard. B. F. Love and the Collards owned the foregoing described land in fee simple. On 18 February, 1915 they executed and delivered a conventional five year primary term, oil, gas, and mineral lease on the lands to R. E. Breeding; Breeding assigned the lease to Producers’ Oil Company in February 1916, and Producers’ Oil Company assigned the same to the Texas Company in November, 1917; and the Texas Company released the lease in January, 1923. Such lease was in full force and effect on 28 November, 1916.

The plaintiffs contend that the reservation in the deed terminated in January, 1923, when the lease to Breeding terminated. The defendants contend that the reservation permanently reserved to the Collards all of the mineral interest owned by the Collards.

Trial was before the Court without a jury, which, after hearing, entered judgment for plaintiffs for all of the mineral interest in the lands; filed Findings of Fact setting forth the facts as herein stated; and Conclusions of Law, as follows :

(The reservation, supra) “is to he construed against Grantors in said deed, and is to he treated as a matter of contract made by and between the parties, and thus it is my opinion that the only interest the Collards reserved in said deed was ‘in the full terms’ only as set forth in the Breeding oil and gas lease, and said lease having expired, .said reservation expired, and the defendants now have no interest in said land, or any part thereof, hut the same is owned by the plaintiffs.”

Defendants appeal, contending that the Collards reserved “all the oil and gas rights in the above land”, and that the deed refers to the oil and gas lease for purposes of description of “all the oil and gas rights in the above tract of land”; and that the termination of that lease did not terminate the oil and gas rights reserved by the Collards.

The sole question for determination is whether the Trial Court was correct in holding that the reservation in the Collards’ deed to Love terminated with the termination of the Breeding oil and gas lease.

Both parties agree that the instrument is subject to construction from its own four corners (and that extrinsic evidence is not available for interpretation), and our decision will rest upon that theory.

It is a rule of construction that should there be any doubt as to the proper construction of the deed, that doubt should be resolved against the grantors, whose language it is, and the deed should be held to convey the greatest estate permissible under its language. Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904; Pitts v. Camp County, Opinion Adopted, 120 Tex. 558, 39 S.W.2d 608. The foregoing rule applies to reservations and exceptions. 31A Tex.Jur. p. 87; Commerce Trust Co. v. Lyon (n. w. h.), Tex.Civ.App., 284 S.W.2d 920. A reservation of minerals to be effective must be by clear language. Courts do not favor reservations by implication. Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153.

If a royalty estate only is reserved under a particular oil and gas lease, the estate reserved, depends for its continued existence, on the continued existence of the oil and gas lease under which it was created ; and by the same token such reservation lapses when the lease ceases to exist. Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; McGuire v. Bruce, Tex.Civ.App., 332 S.W.2d 110; Commerce Trust Co. v. Lyon (n. w. h.), Tex.Civ.App., 284 S.W.2d 920.

With the foregoing rules in mind, we revert to the reservation:

“We (the Collards), hereby reserve to ourselves all the oil and gas rights in the above tract of land hereby conveyed, in the full terms as set forth in a oil and gas lease executed (to Breeding) in 1915.”

Had the grantors intended to reserve all of the oil and gas rights as contended by defendants, they need not have included in their reservation the language, “in the full terms as set forth in a oil and gas lease executed (to Breeding) in 1915.” Having included such language in their reservation, we conclude under the applicable rules, supra, that they intended to reserve only the royalty retained in such lease. The language, “in the full terms as set forth irx a oil and gas lease executed (to Breeding) in 1915”, we think, limits and restricts the preceding reservation to the terms of the lease; and so when the lease terminated, the reservation also terminated. At most, we think that such language raises a doubt, which under the rules of construction announced, must be resolved against the grantor.

Defendants rely heavily upon Murphy v. Jamison, W/E Ref., Tex.Civ.App., 117 S.W.2d 127. In that case the grantor reserved ls/i6 of all mineral rights from said land, and then in addition reserved 1¾6 of all rights under a certain lease. Clearly the Murphy case is correct on its facts, but cannot control the factual situation in this case, as contended by defendants.

The judgment of the Trial Court is affirmed.


author:
CHAPMAN, Justice.
      NORTHCUTT, Justice DENTON, Chief Justice

text:
    The TRAVELERS INSURANCE COMPANY v. Lee E. NEWSOM d/b/a The Rib.
    No. 7129.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1961.
    Rehearing Denied Jan. 15, 1962.

      Thompson, Knight, Wright & Simmons, Dallas, for appellant.
    Grady, Johnson & Smith, Dallas, for appellee.
   CHAPMAN, Justice.

Lee E. Newsom, a restaurateur in the city of Dallas, d/b/a The Rib, instituted this action against The Travelers Insurance Co. for alleged breach of the provisions of a comprehensive liability insurance policy theretofore issued to him by Travelers. He sought to recover attorneys’ fees and costs incurred by him in conducting his own defense of an action brought against him by a customer. The case was tried to the court and a judgment entered for Mr. New-som against Travelers. The company appealed the case to the Dallas Court of Civil Appeals and the Supreme Court transferred the case to us for our determination.

Within the life of the subject insurance policy the above mentioned customer, Paul T. Pohley, brought suit against appellee based upon an incident which allegedly occurred in appellee’s restaurant. He timely presented the Pohley pleadings to appellant and asked that the company defend him. After studying the petition appellant refused to defend the cause on the grounds that the petition alleged a claim expressly excluded from the coverage of the policy.

The policy of insurance upon which ap-pellee sought to require appellant to defend the Pohley action against him was issued by Travelers in connection with appellee’s conduct of his restaurant business at 5741 Lover’s Lane in Dallas known as The Rib. Section 1 Coverage A under “Insuring Agreements” of the policy provided the company would “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease * * * sustained by any person and caused by accident."

Section 2(a) of the policy under “Insuring Agreements” provided:

“With respect to such insurance as is afforded by this policy, the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof even if such suit is groundless, false or fraudulent * * *»

However, by endorsement No. 1721A (G38), amending the policy, it was provided that:

"The policy does not apply to injury caused intentionally by or at the direction of the insured

Section (d) of the “Definitions” in the insurance contract provides:

“ASSAULT AND BATTERY. Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.”

The customer’s petition against appellee, after alleging in effect that while he and his wife were guests in the restaurant they received poor and discourteous service, then alleged: “Defendant, then and there, physically prevented plaintiff and his wife from leaving, grabbing plaintiff by his coat collar with both hands in a violent manner and commenced making tlweats of physical violence.”

Thus, it is readily apparent from the pleadings that actual bodily injury was not alleged except in the allegation constituting assault and battery, which the policy provides shall be deemed an accident, and therefore within the coverage, unless committed by or at the direction of the insured. The pleadings clearly allege the assault and battery was committed by the insured, constituting an exclusion provided in the policy.

It is also to be noticed that the policy provided the company would defend any suit against the insured alleging such injury, sickness, disease or destruction.

The great weight of authority both in Texas and in most other jurisdictions has ■consistently held that in policies wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy, even though such suit may have been groundless, false or fraudulent, the test of the liability of the insurer to defend depends upon the allegations of the plaintiffs petition. In an exhaustive search of all jurisdictions this writer has found but few exceptions to the rule just announced. The only Texas case we consider completely contrary to the great weight of authority is the Bethancourt case by our court just cited, and which holds that even though the petition against the' insured alleged a state of facts excluded by the policy the insurer is under an obligation to ascertain the facts before declining to defend, and that if the investigation reveals the allegations concerning the exclusion are not true the insurer is obligated to defend regardless of the allegations of the complaint. As stated in 50 A.L.R.2d Sec. 17, p. 497, these cases contrary to the weight of authority are confined mostly to Missouri, Oklahoma and Pennsylvania. They are cited in the dissenting opinion.

Both the Hildebrandt case from Oklahoma in the 10th Circuit and the Mc-Gettrick case in the 2nd Circuit, cited in the dissenting opinion, are contrary to the Shantz case in our own 5th Circuit. The Briscoe case by the Supreme Court of Oklahoma, cited in the dissenting opinion, wherein it holds with the minority is dictum. In the Breeding case by the Supreme Court of Oklahoma, cited in the dissent, recovery against the insurance company was denied. In the Roessler case by the Ft. Worth Court of Civil Appeals the insurance company had itself investigated and found the facts contrary to the allegations, which allegations were themselves conclusions of the pleader. No such situation exists in the instant case. Here the insured made the investigation and was asking the company to take as true his own investigations showing contrary to the allegations.

In the Baldwin Motor Co. case by our Commission of Appeals, cited in the footnote, the insurance policy provided it did not cover injuries or damages caused by an automobile operated by any person under 16 years of age. The petition alleges it was being driven by a boy 15 years of age. The court held:

“The pleadings in the Rogers case did not present a cause of action which the insurance company was required to defend, under the terms of the policy.
* * * the liability of the insurance company is not dependent upon any recovery Mr. and Mrs. Rogers might be entitled to, upon proof of any of the material facts they pleaded, but dependent upon whether the aver-ments in the petition showed a state of facts excepted from the hazards insured against in the policy. Tested by such averments, the insurance company could not be called upon to defend a petition which upon its face alleged a state of facts not covered, but excluded, by the policy.
“The insurance company, it is true, contracted to defend all, but only, suits covered by the policy, whether groundless or not.”

There is not any statement, or even an intimation in the opinion to indicate the insurer was under an obligation to “ascertain the facts of the alleged cause of action before declining to defend the suit,” as our court said in the Bethancourt case.

In the Moritz case cited in the footnote the Austin Court of Civil Appeals in an opinion approved by the Supreme Court with a “writ refused” said:

“The issue involved depends * * upon the provisions of the policy wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy even though such suit may have been groundless, false or fraudulent. In such instance, in testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff’s petition. But if, as stated in the Baldwin Motor Company case, such petition shows a state of facts ‘excluded by the policy,' the insurer is not required to defend.”

In the Shantz case by the 5th Circuit, cited in the footnote, Justice Borah speaking for that court said:

“The policy in suit is one of indemnity. It bound appellant to defend suits for damages arising from causes and under conditions specified in the policy. It is a well established rule that the insurer under such a policy cannot be called upon to defend a suit against the assured in which the petition upon its face alleges a state of facts not caused by but excluded from the provisions of the policy.”

Cases from other jurisdictions, with the exception of those above mentioned, have consistently held with the overwhelming weight of the Texas authorities. In the Boyle case cited in the footnote the Municipal Court of Appeals for the District of Columbia held:

“The obligation of the insurance company to defend an action against insured, as distinguished from its obligation to pay a judgment in that action, by the overwhelming weight of authority is to be determined by the allegations of the complaint. This obligation is not affected by facts ascertained before suit or developed in the process of litigation or by the ultimate outcome of the suit. If the allegations of the complaint state a cause of action within the coverage of the policy the insurance company must defend. On the other hand, if the complaint alleges a liability not within the coverage of the policy, the insurance company is not required to defend. In case of doubt such doubt ought to be resolved in the insured’s favor.
"In the instant case it is plain that Pine’s complaint alleged a personal assault and battery committed by the insured and it is also plain that such a claim was outside the policy coverage. Under the test above stated, it follows that the insurance company was not obligated to defend.”

In the Soper case cited the Supreme Court of Green County, New York said:

“The test of coverage is determined by the complaint in the assault action. If that complaint alleged a cause of action by reason of an accident insured against, then the defendant was required to defend the same, even if the action was groundless. On the other hand, if such complaint alleged a cause of action by reason of matters not covered by the insuring agreements of the policy, then the defendant was not bound to defend the same, whether it was a bona fide suit or a groundless one.
“The insuring agreement to defend refers to a suit alleging ‘such injury’. The injury thus referred to is one arising from accident. The insuring agreement, as we have seen, deems as an accident, within the coverage of the policy, an assault, provided that such assault was not committed by am, individual insured. The complaint in the assault action alleges that the assault was committed by the insured. Hence it does not allege an accident within the coverage of the policy. Since the action therefore was not for ‘such injury’, i. e. an injury arising from an accident, within the coverage of the policy, no obligation existed to defend that action.” (Last emphasis by that court.)

Perhaps the case nearest to ours upon the facts is the MacDonald case by the Supreme Court of Oregon cited in footnote 3. Justice Brand speaking for that court said:

“In this case the only charge stated! in the complaint which was filed against Macdonald was that of assault and battery. There was no issue presented in the pleadings in that litigation which could have brought the case within the coverage of the policy. The action against Macdonald was for damages for ‘injury * * * caused intentionally * * * by the insured.’ Such an action was outside the general coverage of the policy whether it was a valid claim or was false and fraudulent. Defendant had no duty to defend. * * * Plaintiff argues at great length that the insured should have the opportunity to present his case in court when he alleges that the third party suits are false and fraudulent. We agree that if a suit is brought against the insured alleging acts which are within the coverage of the policy the insurer must defend, whether the suits are or are not false and fraudulent. But this is not such a case.”

Our own court in 1939 speaking through Justice Stokes in Farmers Cooperative Soc. No. 1 of Quanah v. Maryland Casualty Co., supra, said: “Such policies or contracts of insurance should be construed most favorably to the insured, but they must not be so construed as to substitute a new contract for the one made in plain and unambiguous language by the parties themselves.” This court then held:

“[8] The policy here involved is one of indemnity. It bound appellee to defend suits for damages arising from causes and under conditions specified in the policy. It has been held, and is a well established rule, that the insurer under such a policy cannot be called upon to defend a suit against the insured in which the petition upon its face alleges a state of facts not covered by, but excluded from, the provisions of the policy.”

In section 17, page 497 of 50 A.L.R.2d under “Liability Insurer — Duty to Defend” the text writer in paragraph 1 thereof suggests that the general rule obligating the insurer to defend the suit being dependent upon the facts as alleged in the petition, does not take into account the possibility that a divergence may exist in the facts alleged and the actual facts as they are known to or ascertainable by the insurer. However, in the next paragraph the text says:

“There are, however, a number of cases in which the question was expressly in issue whether or not the allegations in the complaint against the insured determined the insurer’s liability to defend where such allegations are in conflict with the actual facts as known to or ascertainable by the insurer. These cases are in direct conflict with each other, with California, Massachusetts, Mississippi, Ohio, Rhode Island, and the District of Columbia, adhering to the more logical view that the allegations in the complaint remain determinative of the insurer’s duty to defend even though the actual facts are to the contrary. * * "

We pose the question: Why is the duty of the insurer to defend determinative of the allegations in the third party’s complaint? We answer our own question with the very logical conclusion that the contract so provides wherein its says, “the company shall defend any suit against the insured alleging such injuries * * That is the coverage paid for by the insured.

We, of course, are familiar with the well established rule that contracts of insurance should he construed more strictly against the insurer and more liberally in favor of the insured. But there is another rule equally well established, which is that where the language in an insurance policy is plain and unambiguous the courts must enforce the contract as made by the parties. In the Miles case cited in the footnote the Supreme Court said: “When the language of the contract of insurance is unambiguous and is, therefore, susceptible of but one reasonable construction the courts must interpret it as made.”

The clause in this policy providing the insurer will defend any suit “alleging such injury” is susceptible of only one meaning. There is not any language in this contract that could by any stretch of the imagination possibly he interpreted to mean that the insured was obligated to investigate the truthfulness of the third party’s allegations or to take as true statements procured by the insured, which he would naturally be expected to show favorably to himself. To do so would require the insurer to make a decision as to whether the customer’s allegations were true or the statements produced by the insured were true, whereas, the proper decision for the insurer tO‘ make is whether the complaint of the third party alleges “such injuries.” The insurer makes that decision at his peril.

The text writer in 50 A.L.R.2d Sec. 17, supra, also makes the statement that Texas follows the opposite view to “the more logical view that the allegations in the complaint remain determinative of the insurer’s duty to defend even though the actual facts are to the contrary,” later citing Mass. Bonding & Insurance Co. v. Roessler, Tex.Civ.App., 112 S.W.2d 275 (writ dismissed) as authority for the statement. This text was apparently written before we announced our Bethancourt case.

Other well known texts follow our majority holding herein. It has been textually stated in Appleman Insurance Law & Practice, Vol. 8, Sec. 4683, under Duties of Insurer, pages 8 and 9 as follows: “An insurer’s duty to defend an action against the insured is measured by the allegations in the plaintiff’s pleadings, * * *. Or, as some courts have expressed it, the language of the policy and the allegations of the complaint must be construed, to determine the insurer’s obligation.”

The policy here under consideration provides the insurer shall defend any suit against the insured alleging “such injury” even if such suit is groundless, false or fraudulent. Could we then say if the suit alleged a cause of action but an investigation showed it to be a groundless, false and fraudulent allegation the insurer was under no obligation to defend? Certainly we could not, because it would be contrary to the insurance contract. Yet, to so hold would be just as logical as it would to hold that despite the provisions of the contract obligating the insurer to defend only those suits alleging “such injury” the insurer must ascertain the facts, and if they are contrary to the complaint it must defend regardless of the policy provisions.

The majority believe we were in error in the Bethancourt case and are unwilling to compound that error by following it against all the great weight of authority to the contrary in Texas and the great weight of authority in other jurisdictions. To follow it would require us to extend the doctrine so long adhered to in testing the obligations of the insurer to defend by the allegations of the plaintiff’s petition. We prefer to follow the rule which, as textually stated in A.L.R., is the more logical view. Additionally, we feel particularly obligated to follow the principles of law declared in the Moritz case cited in footnote 3. That case was decided since 1927, so we must give the rules of law announced therein the same consideration as we would had they been made by our Supreme Court. City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 312; 15 T.J.2d 600, Sec. 139.

Appellee by brief urges, the contention that the petition alleged tortious acts of ap-pellee’s waiter against him and that “such wrongful and malicious conduct resulted in actual damag'e * * * by reason of * * physical violence on his body * *

Physical violence is the only condition of those mentioned that is covered by the policy. With respect to the waiter the petition alleged:

“Said waiter and the Defendant personally commenced a course of conduct against Plaintiff and his wife destroying any possibility of consuming said meal in a favorable atmosphere; to wit, the entire meal was brought to the table at one time instead of the usual courses; the fire under the meat went out and the waiter refused to relight it; additional salad was requested but refused; a coffee refill was requested but refused; said waiter and Defendant started staring at Plaintiffs, with arms folded, and in close proximity to Plaintiff;”

Obviously such pleading did not allege assault and battery by the waiter.

The action of the waiter in standing in close proximity to the customer with his arms folded could not be an assault and battery. That offense is statutorily defined as follows:

“The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault.” Vernon’s Ann. P.C. art. 1138.

Accordingly, the judgment of the trial court is reversed and rendered for appellant, and that appellee take nothing.

NORTHCUTT, Justice

(concurring).

I concur in the opinion reversing and rendering this case. I am of the opinion the special attached endorsement No. 1721 (G 38) providing that the policy did not apply to injury caused intentionally by or at the direction of the insured would take precedence over any provision of the main policy contrary to such endorsement.

The trial court, in the findings of fact, found that in the suit by the customer against Newsom that the customer pleaded the assault in question was made by this plaintiff against the customer, intentionally and without justification or excuse. The customer, in the suit against Mr. Newsom, could not recover without showing Mr. Newsom committed some wrong toward him. Consequently, he pleaded Mr. New-som made an assault upon him intentionally and without justification or excuse. Under the endorsement above mentioned, the appellant had not insured the appellee against such incident. Since the policy in question stated it did not apply under certain conditions, and those conditions were relied upon by the customer for his recovery, that was the only way the customer could recover from Newsom. The appellant here was under no obligation to defend the suit.

DENTON, Chief Justice

(dissenting).

The majority opinion correctly states and follows the general rule that the obligation of a liability insurance company, under a policy provision requiring it to defend an action brought against the insured by a third party, is to be determined by the allegations in the third party’s petition. However, the opinion ignores a very real and material distinction between those cases following the general rule and the instant case. In this case there is a conflict or variance between the facts as alleged in the third party’s petition and the actual facts as known or ascertainable by the insurer.

The trial court found as a fact that the insurer “ * * * well knew or was well advised in a timely and reliable manner that the assault in question was made by the customer and not by the plaintiff and that the plaintiff was in no way at fault or to blame for the occurrence in question.” By brief, appellant concedes that this finding of the trial court is true. In my opinion this fact takes this case out of the general rule. I think it is significant that all cases cited in support of the majority opinion are cases in which there was no conflict between the facts as alleged in the petition and the actual facts. I therefore conclude those cases cited in the majority opinion are not controlling here.

This proposition is well stated in 50 A.L.R.2d 497 in the following language:

“The general rule to the effect that the determination of whether or not the claim made against the insured is one which by the terms of the contract the insurer is required to defendant depends upon the facts stated in the complaint or petition in the action against the insured is based upon the ordinary or typical situation in which there is no conflict between the facts as alleged in the petition and the actual facts as they are known to or ascertainable by the insurer. In other words, the general rule as stated above does not take into account the possibility that such a divergence may exist; in fact, the rule may affirmatively presuppose the absence thereof. Consequently, the cases supporting the rule are of hardly any value as authority in a situation where such divergence does exist.”

As previously stated, it is conceded by appellant that in the instant case there is a conflict between the allegations in the third party’s petition and the actual facts known. I do not think violence would be done to the record if it were said that appellant would also concede that it would have been under a duty to defend this suit against the insured if the allegations had coincided with the actual facts. Only two Texas cases have passed directly on this question. Mass. Bonding & Ins. Co. v. Roessler (Civ.App.) 112 S.W.2d 275 (error dismissed); Trinity Universal Ins. Co. v. Bethancourt (Civ.App.) 331 S.W.2d 943 (no writ history). In the Roessler case, supra, the policy insured against liability for bodily injury or death accidentally suffered by anyone through the ownership, maintenance or use by the insured of certain designated premises. It contained an exception with respect to injuries to and death of the employees of the insured coming within the Workmen’s Compensation Act. A petition in a death action against the insured alleged that the deceased had been employed by insured in the digging and hauling of gravel in connection with the premises described in the policy, and that deceased met his death through a cave-in in a gravel pit in which he had been required to work by the insured’s foreman. The petition alleged certain acts of negligence on the part of the insured which resulted in the deceased’s death, and further alleged that the insured had more than three employees but that no workmen’s compensation insurance was carried as required by law. After receiving notice of this suit the insurer investigated the facts and discovered that all of insured’s employees at the time in question were either farm or domestic laborers. The Workmen’s Compensation Act would not require workmen’s compensation insurance to be carried with respect to domestic or farm laborers no matter how many might be employed by a single employer. Despite knowledge of these facts the insurer refused to defend the death action. The Court of Civil Appeals held in this situation that the insurer could not rely on the allegations in the petition as justifying its refusal to defend that action. There the court held, “The appellant (insurer) had investigated and knew the facts * * * it knew ap-pellee was preparing the premises for farm purposes and that all employees thereon were either domestic or farm laborers and that he was not subject to the Workmen’s Compensation Act. Under these conditions it could not ignore the Griffin suit because it contained an allegation to the contrary, especially when that allegation was clearly a conclusion of the pleader.”

The Bethancourt case, supra, followed the Roessler case in holding that where there is a variance between the allegations and the known facts the rule is that in determining its duty to defend the insured in an action brought against him by a third party, the insurer should not look exclusively to the allegations but is also to be guided by the actual facts of which it has knowledge. I remain convinced these two cases state the law in this State under these circumstances. In my opinion there are no Texas cases holding to the contrary. It is my view that the Roessler and Bethancourt cases are not in conflict with the general rule as set out in the Baldwin Motor Company and Moritz cases and the other cases cited in the majority opinion. These two lines of cases are clearly distinguishable and each reached the proper result. Well reasoned decisions in other jurisdictions have followed the rule set out in the Roessler and Bethancourt cases. They include Marshall’s U. S. Auto Supply v. Maryland Casualty Co., 354 Mo. 455, 189 S.W.2d 529; State ex rel. Inter-State Oil Co. v. Bland, 354 Mo. 622, 190 S.W.2d 227; United States Fidelity & Guaranty Co. v. Briscoe, 205 Okl. 618, 239 P.2d 754; Hardware Mutual Casualty Co. v. Hilderbrandt, C.A. 10th Okl., 119 F.2d 291; University Club v. American Mutual Liability Ins. Co., 124 Pa.Super. 480, 189 A. 534, in addition to McGettrick v. Fidelity & Casualty Co. of N. Y., supra, cited in the majority opinion.

This writer concedes that one pronouncement in the Bethancourt case was perhaps erroneous when it stated: “ * * * we think the appellant (insurer) was under a duty to ascertain the facts of the alleged cause of action before declining to defend the suit.” The result and reasoning of both the Bethancourt case and this dissenting opinion are not dependent on this holding. This pronouncement was mere surplusage and did not affect the outcome of the case. In both the Bethancourt case and the Roes-sler case, and the instant case, the insurer did in fact know the actual facts which were in conflict with the pleadings.

For the reasons stated I would affirm the judgment of the trial court.

      . The Travelers Insurance Co. will be hereinafter referred to as Travelers, appellant or “the company.”

      . All emphasis shown herein is ours unless otherwise designated.

      . Maryland Casualty Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095 (writ refused) ; Farmers Cooperative Soc. No. 1 of Quanah v. Maryland Casualty Co., Tex.Civ.App., 135 S.W.2d 1033 (NWH); West Texas Stone Co. v. Employers Casualty Co., Tex.Civ.App., 178 S.W.2d 168 (refused W.M.); U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S.W.2d 815 (Com.App.); General Insurance Corp. v. Harris, 327 S.W.2d 651 (N.W.H.); Soper v. Fidelity & Casualty Co. of New York, 198 Misc. 1117, 101 N.Y.S.2d 581; Boyle v. National Casualty So., D.C.Mun.App., 84 A.2d 614; MacDonald v. United Pacific Insurance Co., 210 Or. 395, 311 P.2d 425 (Sup. Court of Oregon); Hardware Mutual Casualty Co. v. Schantz, 186 F.2d 868 (5 Cir.).

      . Trinity Universal Insurance Co. v. Bethancourt, Tex.Civ.App., 331 S.W.2d 943 (N.W.H.), and the Roessler case therein cited; McGettrick v. Fidelity & Casualty Co. of New York, 264 F.2d 883 (2 Cir.); cases cited from Missouri and Pennsylvania in the dissenting opinion.

      . In our case the exclusion clause is brought into being by an allegation that the assault and battery was committed by or at the direction of the insured.

      . Providence Washington Ins. Co. v. Proffitt et al., 150 Tex. 207, 239 S.W.2d 379; Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762.

      . Farmers Cooperative Soc. No. 1 of Quanah v. Maryland Casualty Co., supra (N.W.H.); Minnesota Mut. Life Ins. Co. v. Newman, Tex.Civ.App., 157 S.W.2d 667 (writ refused); U. S. Fidelity & Guaranty v. Baldwin Motor Co., supra; United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048 (Com.App. adopted).