text:
    BARKSDALE et al. v. DOBBINS et al.
    No. 5626.
    Court of Civil Appeals of Texas. Texarkana.
    June 5, 1940.
    Rehearing Denied June 20, 1940.

      Frank C. Bolton and McDavid & Me David, all of Henderson, for appellants.
    Smith & West and Br'achfield & Wolfe, all of Henderson, for appellees.
   WILLIAMS, Justice.

This suit is a direct' attack upon the will of M. M. Barksdale, hereinafter referred to as decedent, instituted in the County Court of Rusk County by appellees, Jesse Lee Blackwell and Mrs. Lorine Dobbins, joined by her husband, W. D. Dobbins, against Claude Barksdale, Mrs. Nettie Neal and Mrs. Minnie Priddy, to set aside the probate of same, and for annullment of the will itself. Being denied the relief sought in the county court, appellees appealed. On trial de novo in the district court, the jury in response to special issues found in answer to No. 1, that the execution of the purported will was procured through the undue influence of Claude Barksdale and Mrs. Minnie Priddy, or one of them; and to No. 2, that decedent lacked testamentary capacity. Judgment was entered setting aside and holding for naught the purported will and the probate thereof.

Decedent’s estate consisted of his half-interest in an 88-acre farm near Overton, Texas, together with his mineral interest in same and proceeds of oil runs therefrom, which at his death was in excess of $90,000 in value. Under the terms of the will decedent bequeathed to three children, Claude Barksdale, Nettie Neal and Minnie Priddy, to share alike, his entire estate, save and except $25 each to Lorine Dobbins and -Jesse Blackwell, the children of his de-, ceased daughter, Maggie Blackwell. Claude, Nettie and Minnie were named independent executor-executrixes without bond. The will also provided no action should be had in the county court other than to receive and probate the will. The last three named and Maggie Blackwell were the four and only children of the marriage of decedent and his wife. His wife died intestate in 1918. Maggie died August 15,-1931, survived by her daughter, Lorine, and son, Jesse Lee. Decedent died December 3, 1937, at the age of ninety-three. The will in controversy is dated July 20, 1935.

Under the first five propositions, grounded on motions for an instructed verdict and exception to the submission of either issue to the jury, appellants assert that there is no evidence to support either jury finding.

The evidence introduced covers the period from 1931 to 1937, inclusive. In August, 1931, after the discovery of oil, Claude Barksdale, who lived in San Antonio, came to Overton, Texas. From that time 'until his father’s death he spent most of his time in and around Overton. He, his father and Mrs. Priddy lived together during this period of time. Approximately two months subsequent to Claude’s arrival there his father executed a will on October 10, 1931,- and eleven days later a codicil to same, both later destroyed upon the execution of the will in controversy.

According to the testimony of Mr. Burton, a telephone official at Tyler, Claude Barksdale told witness that he had left his business in San Antonio and come to Over-ton to take care of his father’s business and look after the affairs of the estate. This witness further testified that Claude stated his father had reached that age and part •of life where he was easily influenced; had a mind like a child and was not capable of taking care of his business. Mrs. Priddy was present on one occasion and expressed herself substantially the same. Mr. Almond, a telephone official at Troupe, Mr. Vinson, a furniture merchant at Overton, and Mrs. Motley, a niece of deceased, testified that Claude had made statements substantially to the same effect to each of them at their respective places of business. Mrs. Gregory testified that she stayed in the home when Mrs. Priddy left to visit Mrs. Blackwell in 1931, and Mrs. Priddy told the witness, “I want you to watch Pappy (an affectionate term applied to decedent by his family and acquaintances) and not let him sign any papers as he will sign anything anybody asks him to.” The dates of these respéctive" conversations are not definitely shown other than that some occurred in the latter part of 1934 over into 1935, and some from 1931 on up to 1936. Mrs. Priddy and Claude denied making any such statements.

The evidence reflects that during the last few years of decedent’s life, after he began to .receive his money from the oil wells, he was accompanied by either Claude, Mrs. Priddy or her son whenever he left the home. Mrs. Gregory testified that she heard dec.edent tell Mrs. Priddy that he was going to buy.a little house nearby from a Mr. Pope, and “was going to move in it, that he couldn’t step out of the house without he was watched and fussed at, and he was tired of it;” and Claude spoke up and said, “he wasn’t going to get the house, that he would stop that.” Claude did request Pope not .to sell the house to his father. Testimony of other occurrences were given which reflected surveillance over decedent. During the years 1931 to 1936, Lorine Dobbins, her husband and their three minor children, lived within two blocks of decedent. They often visited each: other. Decedent referred to the Dobbins as his babies. Decedent visited this family, in their sickness. Lorine remembered him with flowers on his birthday and candy at Christmas. Decedent frequently visited and chatted with Mr. Dobbins at his barber shop. In short, the natural and friendly family interest existed between decedent and the Dobbins family that is usually found in such a family relationship.

The evidence does not reflect above cordial mutual feeling between Mrs. Priddy and the Dobbinses nor Claude and that family. Mrs. Priddy objected to decedent’s visiting in the Dobbins home, or having Mr, Dobbins do his barber work; referred to the oldest Dobbins child as a little heifer; and said that the whole Blackwell family was sorry. Claude did not visit Mr. Dobbins. Maggie died at Marfa, Texas, August 15, 1931. Claude, who had notice of her death, drove from San Antonio to Overton on August 16th, the day of her funeral at Marfa. Mrs. Dobbins refused to give Claude a power of attorney to handle her part of her mother’s estate.

The circumstances surrounding the execution of the three above-mentioned instruments- were detailed by Mr, J. W. Mc-David-, a reputable attorney who prepared each at the request of decedent. He testified that when he prepared the 1931 will, decedent .came into his office and told witness he wanted to make a will, remarking that the children had their mother’s part and. could do as they pleased wiph it, and “I am going to do as I please with mine.” In this instrument he bequeathed all 'his property to Claude, Minnie and Nettie, and named Claude and Nettie independent executors. Eleven days later, he returned to have his will changed, stating that he had been told that unless the grandchildren were, mentioned in the will it would not stand up and he wanted it to stand up. He was advised by Mr. McDavid that this was not the law in Texas, but a codicil was prepared and executed which bequeathed to Lorine and Jesse Lee each $25. In July, 1935, he returned to have another will made. This time he stated that he wanted Minnie to be added as an executrix, and further stated, “I have been thinking about the other will, my hand was hurt and my signature was wabbly. My hand is well and I want to sign it 'with my usual signature.” The former will and codicil were destroyed at the time, and the will in controversy was executed and placed in Mr. McDavid’s lock box.

Each of these instruments were prepared in the law office of Mr. McDavid in Henderson, Texas. Mr. McDavid further testified that only he and decedent were together in his private office when each of these instruments were drawn by him and executed. Further questioned as to whether he saw any member of this family in town on the day the will was executed, he testified: “I don’t recall, but generally Claude or Miss Minnie, or'sometimes both, would come in the car with him, but - I don’t recall seeing either' one that day.” Henderson is some fifteen miles from Over-ton. Decedent could not drive an automobile. The record is silent as to who carried him to Henderson. Another witness testified of seeing decedent in company with Claude and Mrs. Priddy going in or out of this law office twice shortly after June 16, 1935. Two or three days after his death, Claude, Mrs. Priddy' and Mrs. Neal, unaccompanied by Mrs. Dobbins, -called at the law office, where- the will was opened. It was filed for probate December 7, 1937; four days after his death.

The record is silent as to who suggested, if any one, that decedent name either or all the chief beneficiaries as independent executors without bond, or what layman advised decedent that it was necessary to name the two grandchildren in a valid will The record is further silent that either of the three ever discussed with decedent that he make a will or suggested to him any of its terms. The record does reflect the activity of Claude wherein he sought the aid of his father and cousin to get his aunt, Mrs. Finney, a sister of decedent, to change the terms of her will and make Claude the administrator. In connection with this effort to secure a change in Mrs. Finney’s will another attorney visited decedent at the home, which this cousin testified was at the suggestion of Claude. Mr. Crim, one of the witnesses to his will, and others who had been intimately acquainted with him, after stating details of their association, testified that in their judgment decedent was of sound mind, above the average in mind for his age; bore the reputation of being fair and honest; and carried no grudge or malice towards any one.- As Mr. Crim expressed it, he regarded decedent as a normal man in possession of his mental faculties and “keen as a brier.” Briefly, the medical testimony dealt with the physical changes of a man of advancing years; the gradual weakening of the body, and, as a general rule, the corresponding weakening of the mind and its susceptibility of being influenced by those younger. Other medical testimony and other witnesses were to the effect that decedent was an exception to this general rule.

, Mr. McCord,, a county commissioner, testified to a conversation later more fully detailed, in which decedent stated that he was going to leave his property to his children and grandchildren. The record reflects that this remark and the statements made to Mr. McDavid, above detailed, are the only expressions that decedent ever made about the disposition of his property to any one.

Attention-is first directed to the attack that there is no evidence to support the jury finding on undue influence. “It is generally true that the exercise of undue influence in procuring the execution of a will can only -be shown by circumstances. Direct evidence of -such fact is rarely ever obtainable * * In determining this question, “All of the circumstances shown by the evidence should be considered, and even though none of the circumstances standing alone would be sufficient to show undue influence, if when considered together they produce in the ordinary mind a reasonable belief that undue influence was exerted in the procurement of the will, they are sufficient to sustain such conclusion.” Mayes v. Mayes, Tex.Civ.App., 159 S.W. 919, 922; Russell v. Boyles, Tex.Civ.App., 29 S.W.2d 891; Holt v. Guerguin, Tex.Civ.App., 156 S.W. 581. And in the consideration of the assignments that assert the court erred in refusing to direct, -a verdict for appellants upon this issue, the evidence will be considered most favorable to the verdict, disregarding conflicts, contradictions and all adverse evidence. Reinhardt v. Nehring, Tex.Civ.App., 283 S.W. 347; Williams & Chastain v. Laird, Tex.Civ.App., 32 S.W.2d 502, 505. Or, as held in Holt v. Collins, Tex.Civ.App., 131 S.W.2d 813, all evidence tending.to support the jury finding must be accepted as true and interpreted in the light most favorable to the prevailing party. Viewing the evidence under above rules, we have an aged man, past ninety-one years when he executed the vwill; the statements of two of the chief beneficiaries that he had a mind like a child and was easily influenced, and these statements being borne out by their close surveillance over him; their association with and opportunity to exert their influence; and the unfriendliness of these two towards the Dobbins family. The record reflects that fondness, affection and love of decedent for Mrs. Dobbins and her children which naturally exists on the part of a grandfather towards grandchildren. The unequal distribution of his property and the unnatural disinheritance of this grandchild is unexplained. The record further discloses that Claude took the lead in the management of his father’s estate; sought a power of attorney from Mrs. Dobbins to manage her interest in her mother’s estate; and made an effort to get his aunt to change the provisions of her will, enlisting the aid of his father, cousin and a lawyer in an effort to accomplish this purpose. Decedent’s first will was executed within two months after Claude’s arrival on the scene. Some one had advised decedent that he must name his grandchildren to make a valid will, when he returned and executed the codicil. All these instruments were executed when decedent resided in the Priddy home.

In Lee v. Rwy. Co., 89 Tex. 583, 588, 36 S.W. 63, quoted with approval in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, it is said: “To authorize the court to take the question from the jury, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” Or, as stated in Western Assur. Co. v. Busch, Tex.Civ.App., 203 S.W. 460: “The test as to the conclusiveness of the evidence is, Could' it reasonably be supposed that the minds of unprejudiced men of ordinary intelligence might differ about it, either as to the weight to be given to the testimony or to the deduction drawn therefrom ?”

A jury supposed to be impartial, and of ordinary intelligence has passed upon all these facts and circumstances in evidence and reached the conclusion adverse to appellants’ contention. The evidence raises more than a mere surmise or suspicion. We are unprepared to invade the province of the jury and hold that these facts and circumstances admit of only one reasonable conclusion. Appellants’ assignment that there is no evidence to support this finding of undue influence is overruled. Russell v. Boyles, supra; Holt v. Guerguin, supra; Mayes v. Mayes, supra; Chandler v. Weimers, Tex.Civ.App., 57 S.W.2d 585; Goodloe v. Goodloe, 47 Tex.Civ.App. 493, 105 S.W. 533; Gallagher v. Neilon, Tex.Civ.App., 121 S.W. 564; Craycroft v. Crawford, Tex.Com.App., 285 S.W. 275; Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036; Johnson v. Poindexter, Tex.Civ.App., 9 S.W.2d 172. From the conclusions reached, we pretermit a discussion of the assignment that there is no evidence to support the jury’s finding of lack of testamentary capacity. Craycroft v. Crawford, supra.

Over the objection that it was hearsay and too remote, the witness McCord was permitted to testify to a conversation he had with decedent in March or April, 1934, namely: “Well, my mother died the second day of January, and I met him that morning and he asked me the question, ‘What did your mother do with her property?’ and I told him, ‘She willed it all to my niece,’ and he just made the remark, ‘That is not right, I am not going to do that, I am going to leave my property to my children and grandchildren.’ ” Upon the authority of Holt v. Guerguin, Tex.Civ.App., 156 S.W. 581; Stubbs v. Marshall, 54 Tex.Civ.App. 526, 117 S.W. 1030; Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1143; Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 622, 36 L.R.A. 64, the contention here urged is overruled. See, also, McCormick & Ray on Evidence, Sec. 418.

In the thirteenth proposition complaint is made of the refusal of the court to give appellants’ requested instruction No. 2 to the efféct that mere “persuasion or entreaty by the beneficiary, or some one else on their behalf, is not the character of undue influence which is contemplated by law when speaking of undue or improper influence.” The main charge together with appellants’ requested instruction No. 1 given by the court sufficiently covered the issue of undue influence under the evidence. Upon the authority of Robinson v. Stuart, 73 Tex. 267, 11 S.W. 275; and Gallagher v. Neilon, Tex.Civ.App., 121 S.W. 564, the action of the trial court is sustained.

In his argument to the jury attorney West stated: “Now, gentlemen, they are going to say, Why didn’t you bring witness in to say he didn’t (meaning M. M. Barks-dale) have testamentary capacity? Our reply is, we brought here before you the testimony of the two people who of all the people in the world under the shining sun were best in a position to know what his condition was. I refer to Claude Barks-dale and Mrs. Priddy. We brought you witness after witness who told you what their opinion was — said he was like a child. What did they say ? In effect, that Claude, and on one occasion Mrs. Priddy, went to see Mr. Burton and said the man (meaning decedent) had gotten old and childish, that he was not capable of taking care of his business. Claude said that was why he was up there, and he had to watch him all the time.”

The qualification to the bill of exception shows this argument had reference to the testimony of the witnesses Almond, Burton, Vinson and others as to the statements which had been made to them by Claude and Mrs. Priddy out of the presence of decedent. Appellants’ alleged statements to the witnesses introduced by appellees were admissible in evidence. Appellants’ denials that they had made such statements .was in evidence. This argument is not ¡susceptible of the construction as urged in the fourteenth proposition that it was a comment upon the failure of appellants to testify with reference to transaction with decedent as prohibited under Article 3716, R. C.S.1925.

* Propositions 15, 16, 17 and 18 attack the 'court’s action in not granting a new trial because of alleged improper and' prejudicial argument of appellees’ counsel which is complained of for the first time in their motion for new trial. This argument is incorporated in the bills of exceptions Nos. 13, 14, 15 and,16, and being lengthy will not ,be set out. They are presented collectively and ¡.will be so dis.cussed here. From the evidence introduced the' jurors, already knew that Maggie Blackwell was one of the, four children of decedent; that she had worked with her parents on the farm when it was being paid out; that she had died and appellees were her only children. They had learned that the estate was valued in excess of $90,000, all of which had been bequeathed to appellants except the $50. The issues were of such nature that any jury of ordinary intelligence would have known that their.affirmative answers to the two issues would be favorable to appellees and from the evidence knew the result of. such affirmative answers. ' Finck Cigar Co. v. Campbell, Tex.Com.App., 133 S.W.2d 759, and authorities there cited. And further,, in the language of Justice Sharp in Ramirez v. Acker, Tex.Sup., 138 S.W.2d 1054, 1056, “We think the argument * * * was of such a nature that, if it had been objected to, a reprimand by the court to counsel for making such argument and an instruction * * * to disregard such argument would have rendered it harmless.” The argument is not subj ect to the construction that counsel argued to the jury that they should place themselves in that of plaintiffs and decide the special issues like they would want to be treated. This was nothing more than an appeal to the jury, as reasonable men, to consider (upon the issues of undue influence and testamentary capacity) whether they would have acted, under similar facts and circumstances, as decedent did. In short, if the provisions of this will were the natural act of a reasonable man.

Propositions Nos. 7, 8, 9, 10, 11, 12 and 19 have each been considered, and are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    CLAY BLDG. MATERIAL CO. v. CITY OF WINK et al.
    No. 3947.
    Court of Civil Appeals of Texas. El Paso.
    May 23, 1940.
    Rehearing Denied June 20, 1940.

      R. L. Thompson, qf Stephenville, for appellant.
    A. T. Folsom, of Wink, for appellees.
   PRICE, Chief Justice.

Appellant, plaintiff in the trial court, sued appellee, defendant there, on a city warrant in the sum of $1,834.86, issued by appellee on the 6th day of April, 1929, payable to appellant’s predecessor in title, or order. General and special exceptions interposed by appellee to the appellant’s petition were sustained by the trial court, and, appellant declining to amend, the judgment was that the suit be dismissed. Appeal was duly perfected.

The warrant sued on is as follows:

“The City of Wink, Texas No. 96
“The City Treasurer will pay to Clay Lumber Company, or order, $1834.86, .the sum of one thousand eight hundred thirty four & 8%oo dollars out of the General Fund as allowed by the City Commission on the 1st day of April, 1929, for City Hall Building, 6% interest per annum from date. Given under my hand and seal this 6th day of April, 1929,
“S. P. Beene, Secretary
“J. R- Ostrom, Mayor.”

The consideration for the warrant was alleged to be the construction under a contract between appellee and appellant of a City Plall for appellee. In making the contract aforesaid it is alleged that the appel-lee acted by ordinance duly passed by its Commissioners and Mayor; the construction of the City. Hall for appellee by appellant is alleged; further, that the agreement and intention of all parties at the time of making the contract and the issuance of the warrant was that the warrant was to be paid from the general fund for the year 1929. It further appears from the allegations that the City Hall was accepted by appellee and thereafter continually used by it, and is now used by appellee for a City Hall. Payments on this warrant are set forth as follows: April S, 1933, $122.40; March 15, 1934, $78.05.

Appellant further averred that while it was the 'intention and justifiable belief of all parties that the current revenues of the City for the year 1929 would be ample to pay said warrant, but that due to the' depression occurring in the year 1929 ap-pellee was unable to collect sufficient revenue for that purpose; that since the issuance of said warrant up to the year 1937 the appellee had been unable to collect funds legally applicable sufficient to pay the said warrant excepting, of course, the payments averred; that in 1937 it collected sufficient funds legally applicable to the warrant to pay same, but thereafter has failed and refused to pay same.

It was further averred that on the day of the filing of the amended petition, to-wit, the 24th day of February, .1939, ap-pellee had funds on hand applicable to the warrant sufficient to pay same, and would have such funds during the year 1939; that owing to the shrinkage of the taxable values prior to 1937 the appellee had no funds legally available to apply on the warrant.

In the second count fraudulent representations are charged against the officers and agents of the appellee relative to its financial condition at the time of the contract; a reliance thereon by appellant, and failure to discover such alleged fraud until 1936; and a plea of estoppel on the part of the appellee to set up the defense of limitation or the constitutional provision applicable.

By a third count a recovery of the building is sought together with rental thereon at the rate of twenty dollars per month.

Among the defenses urged was a general exception and special exceptions invoking the four year statutes of limitations. These exceptions were sustained.

A correct disposition of this appeal involves the determining, first, as to whether the petition shows on its face a violation of Section 5 or 7 of Art. 11 of the Constitution, Vernon’s Ann.St.; then, if that question be answered in favor of appellant, the question of limitation arises.

Unless it was contemplated by appellee and appellant that the warrant was to be paid from current revenue for the year 1929, it is clear that the attempted creation of the debt was in violation of the Constitution. On the other hand, if the reasonable intention of the parties was that same be paid from the current revenue for the year 1929, s.ame is not inhibited by the Constitution.

It cannot be denied that the erection of a City Hall is not one of the ordinary annual expenses of a city, but the essence of the prohibition of Section 5 or 7 is that no debt can be created without provision for payment. This applies to all obligations regardless of the purposes of their creation. However, an obligation to be paid out of revenue for the current year is not such a debt. as comes within the meaning of the Constitution. The constitutional provision does not apply to debts payable out of current revenue for the year or other funds in immediate control of the city lawfully applicable thereto. City of Corpus Christi v. Woessner, 58 Tex. 462; McNeal v. City of Waco, 89 Tex. 83, 33 S.W. 322; Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525; Southland Ice Co. v. City of Temple, 5 Cir., 100 F.2d 825.

The purposes of the obligation, the extent thereof, and the extent of the revenue of the city may all have important bearing in cases of doubt in determining the question as to whether it is contemplated that same be paid from current revenues, but none of these is necessarily conclusive on the question.

The erection of a City Hall, if same be required, is certainly a proper matter of municipal expenditure. If it reasonably appear that the current revenues of a municipal corporation will exceed the ordinary current expenses, there is no reason why the excess should not be devoted to the erection of a city hall.

This matter arises on demurrer, hence the allegations of plaintiff’s petition are duly taken as representing the facts. As has been before stated, the mutual intentions and reasonable expectation of both parties was that the warrant was to be paid out of the general fund for the year 1929; further, that there was every reason to believe that by taxation there could be placed in the general fund sufficient revenues to meet the current expenses of the City and pay for the proposed improvement.

It seems that it is not necessary that the funds be in the city depository or in the hands of the city. If there is reasonable expectation that same will be raised during the current year, that is sufficient. The fact that same were not raised during that year would not release the city, City of Laredo v. Frismuth, Tex.Civ.App., 196 S.W. 190; Colonial Trust Co. v. Hill, Tex.Com.App., 294 S.W. 516.

We hold that on the averments of plaintiff’s petition a violation of Section 5 or 7 of Art. 11 of the Constitution does not appear.

Let us then address ourselves to the question of limitation. Under the case made by the petition appellant had no legitimate quarrel with appellee prior to 1937. Ap-pellee was unable to provide the funds from which appellant’s claim was lawfully payable. Current expenses were, of course, a first claim on the general funds. If properly payable from the general fund, the warrant was, of course, payable in due order. There was no unlimited power of taxation on the part of appellee. It could not be forced by mandamus on its officers to levy taxes beyond a lawful limit. In refraining from doing this the Commissioners and Mayor were acting in accordance with the law. If the allegations of the first count of the petition are true, any suit by appellant prior to 1937 would have been premature.

Between individuals a promise to pay from a particular fund does not mature until such fund comes into existence. Bowers v. Bowers, Tex.Civ.App., 99 S.W.2d 334; Shackelford v. Neilon, Tex.Civ.App., 100 S.W.2d 1037.

The case of Leach v. Wilson County, 62 Tex. 331, seems to us to have some bearing here by analogy. It was there held where a claim had been allowed by the Commissioners’ Court and warrant duly issued therefor, until repudiation thereof by the County limitation did not commence to run.-

McQuillin, in relation to the running of the statute of limitation as to warrants, says: “A cause of action accrues when the warrant is due and payable and the fund is in existence to pay such warrant. Until a fund is provided by the municipality to pay warrants, limitations do not ordinarily begin to run.” Vol. 6, McQuillin, Municipal Corporation, Second Edition, Sec. 2419.

Here, according to the theory of the petition, there was a fund under the immediate control of the City to be raised by current taxation sufficient to pay'this warrant. This fund, through unforeseen conditions, was not available at the time contemplated. A municipal warrant is in the nature of an order given by the city on the city. Stratton v. Commissioners’ Court, Tex.Civ.App., 137 S.W. 1170.

Where the warrant is payable out of a particular fund, such as the general fund, implicit in the order is payment out of the fund when same comes into the custody of the proper officers of the city. Payment out of the fund to be made with due regard to the previous orders given thereon.,

It is our opinion that under the averments of appellant’s petition this warrant was not barred by limitation at the time of the institution of appellant’s suit on the 8th day of February, 1938. If the warrant in question was payable out of current revenues of 1929, and there was reasonable expectation that same would be sufficient after payment of the current expenses of the city to pay same, and that in truth and in fact the City of Wink was until 1937 unable to provide for the warrant out of the general fund, the cause of action is not barred on the warrant. The duty to pay did not arise until funds were legally available for payment. Further, we hold that any cause of action on an implied contract to pay the reasonable cost of the construction is barred. City of Wink v. R. B. George Machine Co., Tex.Civ.App., 73 S.W.2d 653.

In our opinion, any cause of action based upon fraud is likewise barred. This is not a time warrant. A failure to pay same from the revenues for 1929 would, within a year or so thereafter, he sufficient to demand inquiry. An inquiry pursued with reasonable diligence would certainly lead to knowledge of the financial condition of the City. Some seven or eight years have elapsed from the time the warrant should, in the reasonable contemplation of the parties, have been paid.

. It is ordered that the cause be reversed and remanded.


author: . WILLIAMS, Justice.

text:
    AGEY v. BRYANT.
    No. 5648.
    Court of Civil Appeals of Texas. Texarkana.
    June 13, 1940.
    Rehearing Denied June 20, 1940.
    Willard J. King, of Henderson, and Willis & Via, of Pampa, for plaintiff in error.
    Caves, Waldrop & Shaw, of Henderson, and Golden & Croley, of Dallas, for defendant in error.
   . WILLIAMS, Justice.

W. M. Agey,- plaintiff below, in his fourth amended original petition on which he went to trial, sought judgment against defendant, R. B. Bryant, in the sum of $5,000 for drilling an oil well, hereinafter referred to as well No. 3, on a south 42/z acres of a 15-acre leasehold. In above pleading plaintiff alleged that he and defendant entered into a written contract on July 16, 1935, under which plaintiff was to drill for defendant three wells upon the 15-acre lease, then owned by defendant, and for which defendant was to pay plaintiff $5,000 for each well, payable $1,500 on completion and the balance at the rate of $200 per month. Plaintiff alleged that he “drilled three wells specified in said agreement for defendant and pursuant to and according to the terms and conditions thereof; that defendant paid him for wells No. 1 and No. 2, but had wholly failed and refused to pay him for drilling No. 3.” In brief, plaintiff declared upon above contract that he performed under same; and sought judgment thereunder. Defendant answered with exceptions and a general denial. He further pleaded in defense (same being verified) that above contract had been abandoned prior to drilling of No. 3 well; that plaintiff had performed under a subsequent contract entered into between plaintiff and one Max Cherry; and that under two formal releases executed by plaintiff, the latter had released defendant from any obligation under the original contract. Thus as a defense defendant urged a general denial, an abandonment, a novation and a release. It is undisputed that plaintiff and defendant made the July 16, 1935, contract. But the pleadings and evidence r.aise the issue if plaintiff performed under the original contract.

Defendant acquired the 15-acre leasehold under an assignment from Jack Apple in consideration of certain, oil' payments, and in which instrument Bryant agreed to drill a well in thirty days, and a second and third well, provided the first proved to be a commercial producer. Well No. 1 began to fail after being brought in. Plaintiff was drilling No. 2 when he received a letter from defendant on September 5, 1935, not to drill No. 3 or set up on that location. Subsequent thereto plaintiff filed in the county clerk’s office of Rusk County a laborer’s and materialman’s lien against the 15-acre leasehold to secure a balance due him for drilling wells No. 1 and No. 2. A broker negotiated a sale of the south 4⅜ acres, or the No. 3 location, from defendant to Max Cherry. And on January 23, 1936, plaintiff, defendant and Cherry met in a lawyer’s office in Dallas where plaintiff released his lien to defendant on the 4⅜ acres; defendant assigned the leasehold on the south 4⅜ acres to Max Cherry; and plaintiff and Cherry entered into a written drilling contract to drill well No. 3, in which Cherry contracted to pay plaintiff $5,150 cash for such service. This instrument recited that Cherry owned the 4¾ acre leasehold by reason of assignment unto him of that date. All three instruments bear same date and were acknowledged before the same notary. Plain,tiff then moved upon and drilled well No. 3. In February 1936, plaintiff filed in the county clerk’s office a laborer’s lien against the 4¾ acre leasehold. In this affidavit it is asserted that Cherry was the owner of the leasehold; that the well had been drilled for him under the Agey-Cherry drilling contract; and plaintiff was due $5,150, plus extras, in the total of $5,682.

In August 1936, plaintiff filed suit against Cherry, Bryant and others (holders of oil payments) and sought judgment for $5,150, plus extras, in the total of $5,682, against all defendants, with foreclosure of last above-mentioned lien. In this original petition plaintiff declared upon the Agey-Cherfy drilling contract and alleged that it had been drilled for Cherry pursuant to that contract. On the day prior to filing suit, plaintiff by letter advised defendant that he was about to file suit in order to clear up the Cherry matter and it would be necessary to make defendant a party thereto. And suggested that if defendant would relinquish his rights to an oil payment and thereby save expense, plaintiff would prepare a release for defendant’s execution. On October 22, 1936, plaintiff and defendant effected a compromise settlement on a disputed balance plaintiff claimed defendant still owed him for drilling wells No. 1 and No. 2. Defendant paid a certain sum and plaintiff executed to defendant a release from all claims on the entire 15-acre leasehold.

In his fourth amended original petition filed May 2, 1938, plaintiff abandoned all allegations of the Agey-Cherry contract, and performance thereunder; dropped all-parties defendant except Bryant, and declared performance under the Agey-Bryant contract, and sought judgment for $5,000. The foregoing instruments, abandoned pleadings, letters and other documentary evidence were introduced in evidence. We deem what has been briefly detailed sufficient for an understanding of our disposition of this appeal. • The oral testimony will not be detailed for plaintiff does not attack any finding of the jury for insufficiency of evidence.

The jury found that plaintiff, defendant and Cherry agreed that the Agey-Cherry. drilling contract would be in lieu of the Agey-Bryant contract and a release of defendant from any obligation under the Agey-Bryant contract; that plaintiff intended to release defendant from any obligation under the Agey-Bryant contract when plaintiff executed the release dated January 23, 1936; and plaintiff likewise intended to release defendant when plaintiff executed the Agey-Cherry contract. The jury further found that plaintiff intended to release defendant from the Agey-Bryant contract when plaintiff executed the October 1936 release; that defendant did not authorize plaintiff to drill well No. 3; and that plaintiff drilled well No. 3 under the Agey-Cherry contract. Judgment was entered that plaintiff take nothing.

Various propositions of plaintiff are grounded on his special exceptions to the pleadings and the admissibility, under the pleadings, of above-mentioned instruments. These special exceptions will not be detailed further than to note that they were directed to defendant’s detailed allegations and description of above written instruments, with the acts and conduct of the parties together with the circumstances surrounding the execution of each. The answer, when taken as a whole, was sufficient to set up the defenses above mentioned. However, we need not rest an affirmance of the judgment upon the foregoing conclusion, and for this reason pre-termit a further discussion of the special exceptions to the pleadings. For it is to be observed that defendant urged a general denial. This plea alone was sufficient to put in issue plaintiff’s allegations that he had performed under the original (Agey-Bryant) contract. Article 2006, R.C.S. In Cuniff v. Bernard Corp., Tex.Civ.App., 94 S.W.2d 577, 579, writ refused, with authorities there cited, it is stated: “We think it is now unquestionably the general rule that the general denial allows the introduction by the defendant of any evidence, not otherwise inadmissible, which has the effect of directly rebutting the plaintiff’s allegations, or which by reasonable inference infer or argue the nonexistence of the facts relied on by the plaintiff.”

These written instruments bearing upon the issue whether plaintiff had performed under the first or second contract were admissible under defendant’s plea of a general denial. 33 T.J. p. 666, Sec. 208. This general denial placed the burden of proof upon plaintiff to establish his allegation by a preponderance of the evidence that he had performed under the Agey-Bryant contract. There is no jury finding that he did so. No such issue was requested. There is no jury finding which would warrant a judgment for plaintiff, and the cause is affirmed.


author: TIREY, Justice.

text:
    CITY OF WACO v. CRISWELL.
    No. 2201.
    Court of Civil Appeals of Texas. Waco.
    March 28, 1940.
    Rehearing Denied June 27, 1940.

      George W. Morrow, City Atty., and Mabel Grey Howell, Asst. City Atty., both of Waco, for appellant.
    Fitzpatrick & Dunnam, of Waco, for appellee,
   TIREY, Justice.

This is a suit for damages against the-City of Waco for personal injuries to T. T. Criswell, who was plaintiff below. Plaintiff’s cause of action was based on the alleged negligence of the city in its relation to the construction and maintenance of a drainage ditch or storm sewer within the traveled portion of South 3rd Street in the city limits. The case was submitted to a jury upon special issues and resulted in verdict and judgment for the plaintiff.

The evidence disclosed that South 3rd Street from curb to curb is 44 feet and .that the same is ’squeegeed. At a point 56 feet north of the abutment to a bridge across Waco Creek, on the west side of Third Street, there is a storm sewer, extending from the curb into the street 3.8 feet. The height of the vertical front of the sewer is 2 feet and 9 inches. There is also a storm sewer on the east side of the street approximately opposite the one on the west side, and these sewers reduce the width of the traveled portion of the street from 44 feet to 36 feet. The top of the sewer is covered by an iron grating that lies flush with the street. There was no grating or covering over the mouth or opening to the sewer. The sewer was constructed some twenty-five or thirty years before plaintiff suffered his accident and injuries. South 3rd Street is a heavily traveled street.

Just after dark on the day of the accident the appellee was in his own car, which was being driven by Lloyd Barton after a joint business trip to Waco. Ap-pellee and the driver of his car were going south on said South 3rd Street in order to leave the city and go to their homes in Marlin, Texas. As they approached the point of the accident in question they observed a car going north, and just before they could pass the first car, another car coming north attempted to pull around and pass the first car approaching, at which time the driver of appellee’s car pulled over to his right in order to give more room. When he did so, his right front wheel struck some part of the storm sewer and was driven back under appellee’s car, causing the driver to lose control of the car, which continued southward and struck the abutment of the Waco Creek bridge. Appellee was thrown out of the car by the impact, and, as a result of such fall, suffered the injuries complained of.

Plaintiff, among other things, charged (1) that the city negligently constructed and maintained the storm sewer in the traveled portion of the street commonly used by the traveling public; (2) that it failed to exercise ordinary care in keeping said street at said place in a reasonably safe condition . for automobiles to pass over; and (3) that it negligently failed to place over the entrance to said drainage ditch and storm sewer an iron or steel grating so as to permit automobiles to drive over same’ without injury or damage to the occupants thereof. The jury found that the city maintained the entrance to said storm sewer out into the traveled portion of the street, and further found that it was not guilty of negligence in so doing. It further found that the city failed to have over the entrance to said storm sewer an iron or steel grating so as to permit automobiles to drive over same without injury to the occupants of said cars, and that the failure of the city in not having an iron or steel grating over the entrance to the storm sewer rendered said street in a condition that was not reasonably safe for the use of the public traveling in automobiles thereon. The jury further found that the city was guilty of negligence in not having an iron or steel grating over said entrance to the storm sewer, and that such negligence was the proximate cause of the injury to the plaintiff. It further found that the driver of the car was driving in excess of twenty miles per hour at the time of the accident in question; and further found that his rate of speed did not proximatcly contribute to cause the injuries and damages to the plaintiff. The jury acquitted the driver of the car and the plaintiff of all other acts of negligence.

It is he city’s contention that since the jury found that it was not negligence for it to maintain the sewer in the street at the place where it maintained the same, and since there was no evidence of negligence on the part of the city in its failure to construct and place a steel or iron grating over the entrance to said storm sewer, the trial court should have granted its motion for judgment non obstante veredicto, or, in the alternative, should have granted it a new trial. We think this contention must be sustained. The plaintiff called as his witness the city engineer, presumably -a hostile witness, as provided in , amended Article 3769c, Vernon’s Annotated Civil Statutes. The city engineer testified with reference to the storm sewer, in part, as follows: “From the amount of water that goes down Third Street, it is the only type that will effectively carry all of the water without damming up and possibly overflowing.” He further testified, in part, that the storm sewer in question was constructed from twenty-five to thirty years before the accident in question, and was the type usually used in cities for such purpose at the time it was so com structed. He further testified, in part, as follows:

“I might answer that by saying that the standard design ten years ago was with a grate across the.opening and down flat in the- gutter and catch basin similar to our latest design; but the experience with grates has been such that we discontinued their use because they stopped up so easy with leaves and paper — would stop them up, and keep them from properly carrying the water off.”
“In my opinion, if there was a grate, it would clog up and necessarily, as a direct cause of the stopping up, would flood the property because the water would have to go somewhere and as-soon as it built up to the height of the curb, it would run over the top of the curb and overflow the property.”

No other witness testified with reference to the maintenance and construction of a grating over the opening to the storm sewer, save and except Charles Bettinger, Jr. (witness for the city), who was a draftsman in the city engineer’s department, and his testimony corroborated that of the city engineer upon said matter. As a general rule, a litigant vouches for the credibility of a witness introduced by him and is bound by his testimony. Pickett v. Dallas Trust & Savings Bank, Tex.Com.App., 24 S.W.2d 354, point page 357; 17 Tex.Jur. 928, § 419. However, there is a well known exception to this rule, that is, the litigant is permitted to contradict the testimony of such a witness by independent facts showing its inaccuracy or falsity. South Texas Coaches v. Eastland, Tex.Civ.App., 101 S.W.2d 878 point page 884, writ dismissed. However, we think that the plaintiff had the right to treat the city engineer as an adverse witness under the authority of Article 3769c, supra. Under the ' provisions, of the foregoing Article, the plaintiff was. not bound by the testimony of the city engineer, and the jury had the right to. reject his testimony in toto. But it did. not have the right to make a substitution, of his testimony by attributing to him. testimony he did not give. Schumacher v. Missouri Pacific Transportation Co., Tex.Civ.App., 116 S.W.2d 1136, point page 1140, writ dismissed. The plaintiff had the burden of establishing negligence against the city. The jury found that the city was not guilty of negligence in maintaining the sewer in the street at the-time and place in question. It is. true,, the jury did find that the city was guilty of negligence in failing to maintain a. steel or iron grate over the entrance to. the storm sewer, but where is the testimony in the record to support such finding? The city engineer testified positively that the storm sewer in question was the type that was usually used in cities, at the time it was built, and further testified that the- construction and maintenance qf- a steel or iron grating over the: entrance to the sewer would defeat the drainage purpose for which it was constructed and maintained. He testified on redirect examination by plaintiff as follows :

“Q. I will ask you if it is not a fact you told the jury a minute ago that if you had a grating over this it would get stopped up? A. Yes, sir.
“Q. What would stop it up? A. Leaves, paper and trash.”

Certainly, that is the direct and positive testimony of the city engineer. The next question arises, are there any independent facts and circumstances in the record showing the inaccuracy and the falsity of the statements of the city engineer with reference to the construction and maintenance o.f an iron grating over the entrance to the storm sewer to support the jury's finding that the city was guilty of negligence in not having an iron or steel grating over the entrance to the storm sewer in question? We have searched the entire statement of facts with this in view and have been unable to find it. On the contrary, we think the only evidence adduced was that a grating over the entrance would have been impracticable. The city . was only required to do what an ordinarily prudent person would have done under the same circumstances. City of Waco v. Ballard, Tex.Civ.App., 246 S.W. 97, point page 99. See, also, 30 Tex.Jur. 746. It therefore appears to us that the plaintiff has not carried his burden, and this cause must be reversed.

The city contends further that since, in locating and constructing the storm sewer, it was exercising a governmental function, the improper or negligent performance of same could create no legal liability against it, because it was exercising a discretionary power with reference to the construction and maintenance of the storm sewer and that there is no liability from the failure to exercise, or the manner of exercising, or errors of judgment in exercising such discretionary power; and that it was entitled to a directed verdict. We have carefully considered the foregoing proposition, and we believe that under the rule announced by the Commission of Appeals in City of Waco v. Darnell, 35 S.W.2d 134, an issue of fact was raised for the jury. See, also, City of Waco v. Killen, Tex.Civ.App., 59 S.W.2d 940, writ dismissed; Kling v. City of Austin, Tex.Civ.App., 62 S.W.2d 689.

Appellant next contends that since Lloyd Barton, the driver of the car, and the appellee were engaged in a joint enterprise, that the said Barton’s acts of contributory negligence are imputed to appellee, and that therefore the city is not liable for the injury sustained by ap-pellee. It is true that the jury found that Barton was driving the car in excess of twenty miles per hour at the time in question, and the evidence is undisputed that it was within the city limits of the city of Waco, but the jury also found that such rate of speed in excess of twenty miles per hour did not proximately contribute to cause the injuries and damage to appellee. The jury acquitted said Barton of all other acts of negligence; therefore, we hold that the rule announced in the case of El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, does not apply, and this assignment is overruled.

The jury having found in its answer to special issue No. 5 that the city was not negligent in maintaining the entrance to the storm sewer out in the traveled portion of the street, and since we are of the opinion that there is a total absence of any evidence in this record to support the jury finding of negligence on the part of the city in its failure to maintain the steel or iron grating over the entrance to the storm sewer in question, and since the plaintiff failed to carry this burden, the judgment of the trial court must be reversed. See Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, point page 1063. Under the rule announced in Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, point page 594, we do not feel that we can say that this case has been fully developed, and, by reason thereof, we reverse and remand the cause for another trial.

The judgment of the trial court is reversed and the cause remanded.


author: JOHNSON, Chief Justice.

text:
    ORTIZ OIL CO. v. LUTTES et al.
    No. 5543.
    Court of Civil Appeals of Texas. Texarkana.
    June 5, 1940.
    Rehearing Denied June 20, 1940.

      John Davenport, T. R. Boone, and Kearby Peery, all of Wichita Falls, and Caves, Waldrop '& Shaw, of Henderson, for plaintiff in error.
    Clower, Bezoni & Wilson and N, E. Hendrickson, all of Tyler, and E. E. Fischer, of Houston, for defendants in error.
   JOHNSON, Chief Justice.

In their fourth amended original petition on which the case was tried, J. W. Luttes and others, owners of the ⅛ royalty interest in' certain oil-producing land in Rusk County known as the Shiloh Church lot, sued the Ortiz Oil Company, owner and operator of the ⅞ oil and gas leasehold interest covering the land, to recover damages for the alleged wrongful, unlawful and fraudulent conversion, by use of hidden and secret pipes, valves, devices and schemes, and the appropriation to the defendant’s own use and benefit with intent to deprive plaintiffs of the value thereof of plaintiffs’ ¾⅛ interest in more than 300,000 barrels of oil produced on the land in excess of that accounted for by defendant. Defendant filed general and special exceptions, general denial, and attached to its answer a verified statement purporting to be a complete monthly accounting of the amount and price of all the oil which it claims to have produced from the lease for each and every month from the month of May, 1932, when the well was' completed, to the month of June, 1937. Defendant further pleaded that certain of the plaintiffs, namely, the Trustees of said Shiloh Church and F. D. Quinn, had accepted defendant’s checks in full and final settlement for any and all oil due them, and were thereby estopped to make further claims. The cause was submitted upon special issues, in answer to which the jury found: (1) That the defendant, Ortiz Oil Company, had produced oil from said church lot land, in excess of that ■ accounted for in its answer; (2) that the amount produced in excess of that accounted for was 275,000 barrels; (3) that the oil had been produced by the defendant in such manner as to' deceive the plaintiffs as' to the amount being produced; (4) that the defendant produced the oil, in excess of that accounted for, with the intent to deprive plaintiffs of their interest in same; ' (4-a) that the defendant caused the oil produced from the Shiloh Church lot well and oil produced by defendant from the Carlisle School lot well (owned by defendant and in which plaintiffs have no interest) to be intermingled; (5) that the defendant , caused the oil being produced from said church lot well and from said school lot well to be intermingled in such manner that it could not be determined how much oil was produced from the church lot 'well; (6) that the defendant so intermingled the oil being produced from said two. wells from the date that defendant connected them to flow through one separator, until a second separator was installed (which it is agreed was from May 1, 1932, until July 1,. 1934); (7) that defendant’s draft for $318.36 dated March 20, 1935, payable to E. E. Fischer, attorney for the Trustees of the Shiloh Church, was not accepted by him in full and final settlement for any and all royalty oil then due and unpaid from said well; (8) that defendant’s draft for $159.-18 dated March 20, 1935, payable to N. E. Hendrickson, attorney for F. D. Quinn, was not accepted l/’him in full and final settlement for any and all royalty oil then due and unpaid from said well. Judgment was entered in favor of plaintiffs for their ⅜ interest in the 275,000 barrels of oil found by the jury to have been produced and converted by defendant from the church lot well in excess of that accounted for by defendant, at the value of $1 per barrel, in the total sum of $34,375. In a separate decree the judgment further assesses damages for plaintiffs, in the sum of $813.28, being the value of ⅛ of 6,506.26 barrels of oil which the court found was shown by the un-contradicted evidence to have been produced from the Carlisle School lot well and intermingled by the defendant with the oil in which plaintiffs had an interest produced from the church lot well. From an order overruling its motion for new trial defendant excepted and gave notice of appeal and by writ of error has presented the case to this court for review.

Under its first proposition appellant contends: (1) That the jury’s answer to special issue No. 5, to the effect that the defendant had caused the oil being produced from the church lot well (in which plaintiffs owned ⅜ interest) and the oil being produced from the school lot well (owned by defendant) to be intermingled in such manner that it could not be determined how much oil had been produced and converted by defendant from the church lot well, is supported by the evidence; and, since the precise amount converted is thus rendered uncertain, plaintiffs could not recover for any amount; and (2) that the jury’s answer to special issue No. 2, that the defendant had produced from the church lot well 275,000 barrels of oil in excess of that accounted for, is not supported in the evidence, and for that reason judgment should have been rendered for defendant; (3) that the jury’s answers to questions No. 2 and No. 5 are in irreconcilable conflict, and for that reason the trial court should have declared a mistrial. The contentions are not sustained. Briefly summarized, the evidence in support of the findings of the jury show that from May, 1932, to July, 1934, defendant intermingled the oil produced from the church lot well with oil owned by defendant being produced by the school lot well by connecting and producing both wells through one separator, a method which would prevent separately gauging or ascertaining the exact amount of oil produced from the well in which plaintiffs were interested; that they were flowing wells and required only about one hour per day to produce the “allowable”; that in April, 1934, plaintiffs discovered that defendant had installed and equipped the lease with secret flow pipes leading from the church lot well to and under a small house built by the defendant on the premises; that the floor of said house was covered with linoleum, concealing a trap door under which was hidden valves to open and close the well, which 'valves were in addition to the regular valves at the well; that the defendant was found producing the well at night, without flares burning, the vents-not lighted, at which times oil would be flowing into the tanks and pumped int.o-the pipe lines without being gauged; that the oil produced from the well did not require treating before being turned into-the pipe lines; that defendant constructed and operated a’ treating plant on the premises; and in gefieral the leasehold was mechanically equipped in the usual manner for running “hot oil”; that on two-occasions it had been shut down by the State and Federal authorities; that seals-used by pipe line companies in sealing tanks of oil purchased by them were-found on the premises, which seals were those of pipe line companies to which defendant had not reported any sales of oil. The witness V. M. Ramsey testified that he operated a lease for. the Sun Oil Company adjoining the church lot lease in question during the period of time that defendant is alleged to have committed the acts of conversion in this case; that he had been employed in the producing department of the oil business for about fourteen years; that he had been acquainted with the church lot w.ell since it was first completed in 1932; that it was-capable of producing better than 600 barrels per hour; that because of defendant’s manner of operating the church lot lease he had been instructed by his company to watch that well; that it required about one hour per day to produce the allowable, through a choke, from the Sun Oil Company’s well located just across, the road from the church lot well; that he observed the manner and method in which the church lot well was being produced by defendant during most of the year 1934; that the church lot well would run from an hour to an hour and a half during the daytime, either in the morning or the afternoon, and then would run all night; that (specifying the particular times) he observed the well being produced each night from June 1st to August 28, 1934, with the exception of six days in June and two weeks in August that he was off the lease (making sixty-nine days and nights that the well was observed by this witness during June, July and August, 1934) ; that the church lot well was capable of making better than 450 barrels per hour during June, July and August, 1934; that the flares burned during the daytime while the well was being produced, but that they would not be lighted while the well was being produced by the defendant at night. By calculation from Ramsey’s testimony, that he observed the well being produced sixty-nine nights during June, July and August, 1934, with a capable production of 450 barrels per hour, at ten hours per night, would total 310,500 barrels, in addition to that produced during the day time, The amount accounted for to plaintiffs as shown in defendant’s sworn answer filed in this suit, produced during the month of June, July and August, 1934, was 1,528.49 barrels. The amount reported in its sworn account to the state comptroller as being produced for the same period of time was 2,458.32 barrels, a discrepancy in its sworn accounts of 929.83 barrels. But taking defendant’s highest figures, 2,458.32 barrels, subtracted from 310,500 barrels would leave 308,-041.68 barrels produced by defendant (in excess of that accounted for) during the sixty-nine nights the well was specifically observed by the witness Ramsey during the months of June, July and August, 1934

The facts clearly show that defendant produced oil from the church lot well in excess of that accounted for. The evidence as to the amount produced in excess of that accounted for is circumstantial, but lt is cogent and amply sufficient to warrant a reasonable conclusion that the actual amount so produced and converted by defendant in excess of that accounted for was considerably more than the 275,000 barrels found by the jury. Their verdict appears to be very conservative. Though the facts and circumstances in evidence would warrant a conclusion that the amount of oil produced and unaccounted for by defendant was more than the amount found by the jury, just how much more or the exact amount of oil so produced and converted by defendant cannot be specifically determined from the evidence. Therefore the jury’s answer to question No. 5, to the effect that the precise amount of oil so produced and converted from the church lot well by defendant could not be determined, is not in conflict with the jury’s answer to question No. 2, finding that there was produced from said well, in excess of that accounted for, 275,000 barrels. The fact that the exact amount of oil produced and converted by defendant cannot be precisely determined is no reason for denying plaintiffs a recovery for their interest in the 275,000 .barrels conservatively estimated by the jury. “The law requires only that the evidence be sufficient to enable the jury to estimate the loss or damages with reasonable certainty. Damages will not be disallowed merely because the amount thereof can be stated only approximately, Thus the fact that the exact number of logs lost by the plaintiff by reason of the defendant’s unlawful obstruction of a stream cannot be definitely shown should not defeat his right of recovery.” 13 T.J. 368, Sec. 210.

Appellant’s second and fourth prop-' ositions in substance assert that, since plaintiffs discovered in March, 1934, that defendant was unlawfully converting their oil and did not file this suit until December, 1935, such was an unreasonable delay ⅛ filing the suit, and for that reason plaintiffs should not be allowed to recover the highest market value of the oil converted, ^rom hate of conversion to date of trial, anh that the trial court committed reversi-^le error in failing to submit to the jury an issue inquiring as to the highest market value of the oil from the date of conver-s}on £be dade 0f ⅛6 trial. These two propositions are overruled because recovery was n0j. awardéd for the highest market vajUe, $1.35 per barrel, from the date of conversion to the date of trial. The judgment is based upon tbe lowest market yaiUe, $1 per barrel, prevailing at the time 0£ conversion of the oil for which recovery was badj established by undisputed evidence. As stated above, tbe specific acts of conversion for which recovery was had are sboWn to have occurred in the months 0f june, juiy and August, 1934. Defend-admittedly produced, sold to diverse od companies, and accounted for some oil during each of the above named months, and for each and every month during the year 1934, all at the price of $1 per barrel, shown by its sworn answer and accounting in this suit, and by its sworn reports to the state copiptroller. There is no evidence that any oil sold for less than $1 per barrel during the year 1934. The judgment being based upon the cash market value at the time of conversion, which was shown to be $1 per barrel by undisputed evidence, and the admissions of the defendant, it was not necessary for the court to submit that issue to the jury. 41 T.J. 1027, Sec. 228. The judgment not being based upon the highest market.value from the date of conversion to the date of trial, the defendant cannot complain at failure to submit that issue to the jury.

In discussing special issue No. 2, inquiring as to the amount of oil produced from the church lot well by defendant in excess of that accounted for to plaintiffs, one of the attorneys for plaintiffs in his argument to the jury in denouncing the secretive method used by defendant in producing and converting the oil in such .manner- as to prevent plaintiffs- from showing the full amount produced, accused the officials of the defendant company in charge of the operations of the lease of being persons guilty of such conduct as is defined in Article 1410 of the Penal Code. The defendant objected to the argument as being inflammatory. The objection was overruled by the trial court, to which action the defendant excepted and assigns error. Unwarranted conclusions, abuse and criticism of parties, not based upon facts in evidence or fairly deducible therefrom, are condemned by our courts. 41 T.J. 310, Sec. 84. And where such character of argument is made use of the judgment should not be allowed to stand, unless it affirmatively appears that no prejudice resulted. Bell v. Blackwell, Tex.Com.App., 283 S.W. 765. But in the present case, the testimony of plaintiffs, and that of their witnesses, together with the physical conditions found upon the lease, strongly tends to prove a purposely designed method of secretly producing and disposing of the oil with intent to deprive plaintiffs of its value. We are therefore unable to say that the deduction’ drawn- by the attorney is without support in the evidence, or that the remark made was inflammatory. It affirmatively appears from the record that no injury resulted to the defendant, for the jury is shown to have acted conservatively in answering the issue being discussed, by placing the amount at 275,000 barrels when the evidence before them was amply sufficient to have supported a reasonable conclusion that the amount was more than 300,000 barrels. The assignment is overruled.

Under its sixth proposition appellant contends that it established its alleged defense of accord and satisfaction against the appellees named as Trustees of the Shiloh Church and against the appel-lee F. D. Quinn. It appears that in March, 1935, defendant was indebted to the Trustees of the Shiloh Church and to F. D. Quinn for their portion of the ⅛ royalty for allowable oil produced, sold and ac.counted for, but not paid for, by defendant during the months of February, March, April, May, June, July and August, 1933, and August 1934. Same was not a part of the oil for which recovery was had in this suit. On March 20, 1935, defendant issued its check payable to the order of “E. E. Fischer, Attorney -for trs. Lee Shiloh C. M. Church,” in the sum of $318.36-, on which was written the following: “in payment of full settlement of -½ royalty, Feb. March, April, May, June, July, August ’33, and August 1934, according to statement rendered.” On the same date a like check was issued by defendant payable to the order of “N. E. Hendrickson, Attorney for F. D. Quinn” for the amount of $159.18. Mr. Fischer testified on the trial of this case that at the time he received said check he was not attorney for and did not represent the Trustees of said Shiloh Church; that he accepted the check but that he did so in reliance upon defendant’s representation that its statement correctly reflected the amount due. Mr. Hendrickson testir fled that at the time of receiving the check he was attorney for F. D. Quinn, but that he accepted it based upon the figures submitted by .defendant of the pipe line runs, without any knowledge of any “extra” oil being run by defendant. It is the contention of appellant that the acts of the attorneys in accepting said checks upon which was written the above quoted memorandum, constituted, as a matter of law, a full and final settlement for any and all oil due said parties by appellant. Citing the case of Root & Fehl v. Murray Tool Co., Tex.Com.App., 26 S.W.2d 189, 75 A.L.R. 902. The facts here presented do not come within the rule announced in the case last cited. There is no evidence in the record showing that the oil here involved was under consideration in the acceptance of said checks. If any character of settlement was effected by said checks it was referable alone to the allowable oil lawfully produced and sold by defendant, for which it had rendered its statement and which had become a liaui-dated demand, concerning which there was no dispute. “Payment by a debtor of a liquidated demand, presently due, and to which he has no defense which can be urged in good faith or with color of right, is not of itself sufficient consideration to sustain a discharge of other claims against the debtor.” 1 T.J. 266, Sec. 26.

We will now discuss the separate decree in the judgment, wherein the trial court assessed and awarded the plaintiffs damages in the sum of $813.28, being the value of ⅛ of 6,506.26 barrels of oil admittedly produced by defendant from the Carlisle School lot well owned by it and in which plaintiffs had no interest and with which oil defendant intermingled plaintiffs’ oil produced from the church lot well. Appellees contend that this decree is authorized by the rule announced in Union Naval Stores Co. v. United States, 5 Cir., 202 F. 491, affirmed in 240 U.S. 284, 36 S.Ct. 308, 60 L.Ed. 644, to the effect that where defendant has wilfully converted property and mixed it with his own so that the amount converted cannot be determined with reasonable certainty, plaintiff may recover for the whole mass. Whether such a rule might be applied in this state in some circumstances is a matter not necessary for us to determine. It was not applied in the case cited, and such a rule is not applicable to the facts of this case — for the same reason that it was not applied in the .case cited. In the present case, as in the case cited, there was evidence from which the jury could form a reasonably certain estimate of the amount of -the property converted. In such circumstances judgment should be, as was decided in the case cited, for the amount of such estimate. The fact that the jury’s estimate was conservative, and that the evidence would have supported a verdict in a larger amount, and that the precise amount converted could not be determined, would not warrant the action of the court in assessing damages in favor of plaintiff in the amount of the value of ⅛ of defendant’s said 6,506.26 barrels of oil, in addition to the damages assessed upon the verdict of the jury. Said separate decree will be reversed and stricken from the judgment. In all other respects the judgment will be affirmed.

Reformed, and as reformed affirmed.


author: KRUEGER, Judge.

text:
    Harvey THOMPSON, Appellant, v. STATE of Texas, Appellee.
    No. 21244.
    Court of Criminal Appeals of Texas.
    June 28, 1940.
    John D. Coffman, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for unlawfully operating a motor vehicle upon the public highway while under the influence of intoxicating liquor; penalty assessed at confinement in the state penitentiary for a period of two years.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: WALKER, Chief Justice.

text:
    Willie JONES, Appellant, v. MOTOR INVESTMENT CO., Appellee.
    No. 3692.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1940.
    James D. O’Connor, of Dallas, for appellant.
    Cecil E. Wright, of Dallas, for appellee.
   WALKER, Chief Justice.

This appeal was prosecuted from County Court of Dallas County at Law, No. One, to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court. The amount in controversy is $228. On authority of Texas & N. O. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040, the judgment of the lower court is affirmed without written opinion.

Affirmed.


author: HAWKINS, Presiding Judge.

text:
    SANDERS v. STATE.
    No. 21125.
    Court of Criminal Appeals of Texas.
    June 28, 1940.
    Newland, Cornett & Whitworth, of Linden, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault to murder without malice, punishment being one year in the penitentiary.

No facts are brought forward.

The only bill of exception relates to an argument of the district attorney. Objection thereto was sustained and the jury directed not to consider same. We do not regard the argument of such character that the court could not control' it by a withdrawal from the jury.

.The judgment is affirmed.


author: COMBS, Justice.

text:
    SOUR LAKE INDEPENDENT SCHOOL DIST. v. EASTERLING et al.
    No. 3718.
    Court of Civil Appeals of Texas. Beaumont.
    June 12, 1940.
    Rehearing Denied July 3, 1940.
    H. A. Maynard, of Liberty, for appellant.
    Fortenberry & Fortenberry, E. E. East-erling, and H. T. Easterling, all of Beaumont, for appellee.
   COMBS, Justice.

This suit, filed in the District Court of Hardin County by the Sour Lake Independent School District, was for delinquent taxes alleged to be due it by the appellees on 643 acres .of land for the years 1924 to 1937, inclusive, aggregating $513.80. The defendants’ answers contained a general demurrer and several special exceptions. The trial court sustained the general demurrer “and all special exceptions” and the plaintiff declining to amend dismissed the suit and the school district has appealed.

The school district filed no appeal bond and the appellees have filed a motion to dismiss the appeal on the ground that appeal bond was required. The motion is overruled. The school district had a right to enforce the collection of delinquent taxes due it under the provisions of the general tax law. Vernon’s Ann. Civ.St. art. 7343 provides: “All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in. so far as such laws are applicable.”

Independent school districts are not liable for court costs which may accrue in tax suits prosecuted by them. Vernon’s Ann.Civ.St. art. 7297. Republic Ins. Co. v. Highland Park Ind. School Dist, Tex.Civ.App., 57 S.W.2d 627, 633 and authorities cited. No appeal bond was required by appellant to perfect its appeal. City of Wink v. R. B. George Machinery Company, 122 Tex. 613, 63 S.W.2d 849.

Appellees contend, and the trial court apparently held, that the Sour Lake Independent School District as such was without authority to bring this suit for the reason that by the provisions of the special act of the legislature creating it in 1923, chapter 17, the board of trustees and not the school district as such was the proper agency to bring the suit. Section 6 of .the special act reads as follows: “The board of trustees of the Sour Lake Independent School District of Hardin County, Texas, shall be a body politic and. corporate in law, and as such may contract and be contracted with, sue and be sued, plead and be impleaded in any court within this State of competent jurisdiction, and may receive any gifts, donations or devises made for the use of the public free schools of said district.”

The contention is overruled. The act specifically creates “the Sour Lake Independent School District of Hardin County, Texas.” The district can act of course only by authority of its board of trustees in making contracts, prosecuting suits, etc. But that does not necessarily mean that such acts must be performed in the name of the board of trustees rather than in the corporate name of the school district. To 'so hold would be to place too narrow á construction upon the 'statute. We think the statute clearly contemplates that suits, contracts, and other transactions may be conducted by the board of trustees in the corporate name of the Sour Lake Independent School District. The question presented here is not one of lack of authorization of the suit by the school board, but merely the matter of legal authority of the named plaintiff to prosecute the suit. It should be presumed until the contrary is shown that the suit brought in the corporate name of the school district was instituted by and under the authority of its board of trustees. In that respect we can see no reason for applying any different rule from that applicable to private corporations.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: GALLAGHER, Chief Justice.

text:
    THOMPSON v. BARNARD et al.
    No. 2181.
    Court of Civil Appeals of Texas. Waco.
    March 28, 1940.
    Rehearing Denied July 11, 1940.

      Bryan Blalock and W. R. Smith, Jr., both of Austin, for appellant.
    I. M. Singer, Tarlton & Vaughan, and Chas. L. Fíale, Jr., all of Corpus Christi, for appellees.
   GALLAGHER, Chief Justice.

This suit was filed by J. B. Thompson and wife against Drs. Painter, Barnard and White, to recover damages for alleged negligence on the part of said defendants in performing a surgical operation on plaintiff’s wife and in their treatment of her for a short time thereafter. Dr. Painter died shortly after the institution of the suit. His son, Guy Painter, duly qualified as administrator of his father’s estate and was made a party defendant herein. Mrs. Thompson was omitted from plaintiff’s petition on exception of defendants on the ground that the cause of action asserted therein being for the benefit of the community estate of plaintiffs, she was neither a necessary nor proper party thereto.

Plaintiffs’ original petition was filed December 6, 1935, and their first and second amended petitions were filed April_3£U-1937, and April^27^.1938, respectively. All these petitions’ "were superseded by plaintiff Thompson’s third amended petition, which was filed August 26, 1938. Plaintiff alleged, in substanceTiñ said last mentioned petition that on January 6, 1930, he em-[ ployed said Drs. Painter, Barnard and White to perform an operation on his wife; that they accepted such employment and did perform an operation on her on said day and date; that during such operation, and while his said wife was unconscious as the result of the administration of an anaesthetic by them, they placed two large gauze packs or sponges in her abdominal cavity; that said pieces of gauze packing or sponges were not then nor thereafter removed from her body by said doctors, or either of them. Plaintiff further alleged in that connection that defendants discharged and dismissed his said wife from the hospital where such operation was performed and permitted her to depart therefrom within fifteen days thereafter while she was still running temperatures, without informing her or plaintiff of the presence of said gauze in her body and without giving any instruction as to her further treatment.

Plaintiff alleged, as he had in substance in said preceding petitions, that said doctors were negligent in leaving said pieces of gauze or sponge in the body of his said wife when the incision was closed; in not removing them before the same was closed, and in closing the same without such removal. Plaintiff further alleged in that connection for the first time that said doctors, during said operation and at all times thereafter, knowing of the presence of said gauze in the body of his said wife, fraudulently concealed from him and from her the presence thereof in her body as aforesaid and the necessity for removing the same.

Plaintiff alleged that his said wife had endured more or less continuous physical pain and suffering as a result of said alleged negligence from th.e date of the original operation until June 27, 1935, at which time she was compelled to undergo a second operation by another surgeon; that during such operation such surgeon discovered said pieces of gauze packing or gauze sponges in her intestines and removed the same. Appellant alleged in that connection that neither he nor his wife knew or could have known of the presence of said packing or sponges in her body until after said second operation.

Appellant alleged various items of damages which he claimed to have sustained as the result of the negligence of said doctors as aforesaid, and sought recovery therefor.

Each of the three defendants filed separate answers. Each of them, in his third amended answer, excepted to plaintiff’s third amended petition on the ground that it appeared therefrom that plaintiff’s cause of action therein asserted accrued more than two years before the commencement of this suit; and on the further ground that it appeared therefrom that plaintiff’s cause of action, so far as the same was based on fraud of the defendants, or either of them, as stated therein, accrued more than two years prior to the first filing of any allegations attempting to base a cause of action on such ground, and that therefore such cause or causes of action were barred by the two year statute of limitation. The court sustained each of the exceptions recited and dismissed the suit. No ruling on the various other exceptions contained in said answers was made;

Appellant assails the action of thejT court in sustaining said exceptions, on the ground that the two year statute of limitation can not be regarded as running against) him in this case until such time as he couldj be reasonably charged with knowledge ofl the fact that the gauze sponges had been overlooked and left in his wife’s abdomen; that failure on the part of said doctors to inform him or his said wife of the presence of the same in her body tolled the statute*; of limitation, and that the charge of fraudulent concealment, contained for the first time in his third amended petition, did not constitute a new and independent cause of action. While there are decisions to the contrary, the apparent weight of authority j is that a surgeon’s failure to remove a I sponge before closing the incision is negli- ’ gence as a matter of law. 48 C.J., p. 1131, sec. 123; 21 R.C.L., p. 388; Moore v. Ivey, Tex.Civ.App., 264 S.W. 283, reversed on other grounds, Tex.Com.App., 277 S.W. 106; McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A.L.R. 1019, par. 1.

There is no special statute in Texas providing for the time in which actions for malpractice must be brought. We conclude, therefore, that the provisions of Article 5526, § 6, which declare that actions for injury done to the person of another shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not thereafter, are applicable in this case. As a general rule, the statute of limitation commences to run upon a cause of action for tort from the time the duty owing to plaintiff is breached by the wrongful or negligent act of the defendant, even though in some cases the plaintiff is ignorant of the existence of his cause of action, or although damages were not sustained until after the commission of the tort. 28 Tex.Jur., p. 182, sec. 90. Under some authorities, the running of the statute in malpractice cases is postponed during the time the patient remains under the care and treatment of the physician. Schmit v. Esser, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. p. 1312, par. 1. Generally) speaking, in the absence of fraud, the! plaintiff’s ignorance or inability to learn/ of his cause of action will not prevent the! statute of limitation from running. Am exception to this rule is sometimes applied where there has been a relation of trust and confidence between the parties. 28 Tex.Jur., p. 144,-sec. 61; Baker v. Cook, Tex.Com.App., 15 S.W.2d 600, par. 2; Moore v. Waco Building Ass’n, 19 Tex. 68, 45 S.W. 974, 977, writ refused. It has been held that the relation of physician and patient of itself begets confidence and reliance on the part of the patient. Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633. For application of such holding, see Bryson v. Aven, 32 Ga.App. 721, 124 S.E. 553. If the respective doctor^ knew at the time and continuously after! the incision was closed that gauze sponges| had been negligently permitted to remain in the patient’s abdomen, and continued to treat her for fifteen days thereafter and then discharged her as sufficiently recovered from the operation to return to her home without disclosing such situation and without suggestion or advice as to further treatment, it would seem that such facts were pertinent in determining whether a fraudulent concealment had begun. 37 C. J., p. 975, and authorities cited in Note 41. See, also, 74 A.L.R., p. 1320, Note b. 'The fraudulent concealment of a cause of action by a defendant, even though that cause of action may not have arisen in fraud, will prevent the bar of limitation where plaintiff, after exercising ordinary diligence, fails to discover the existence of a cause of action. Owen v. King, 130 Tex. 614, 111 S.W.2d 695, par. 3, 114 A.L.R. 859; Steele v. Glenn, Tex.Civ.App., 57 S.W.2d 908; Id., Tex.Sup., 61 S.W.2d 810, par. 2. Fraudulent concealment of a cause of action is not, however, a new and separate cause of action in itself. It merely estops the guilty party from asserting or relying upon the defense of limitation until his fraud was, or could by the exercise of ordinary diligence, have been discovered by the plaintiff. Steele v. Glenn, supra. If such situation existed in this case, plaintiff’s cause of action may have appeared to be barred at the time he filed this suit, but it was not in fact barred if defendants were estopped to rely on the defense of limitation on the grounds alleged in plaintiff’s third amended petition. Whether it was barred-in fact will depend on the testimony which may be presented at a trial.

The cause of action for negligence asserted in plaintiff’s original petition arose after the enactment of Article 5539b, Vernon’s Ann.Civ.St. It is stated in that connection, in 28 Tex.Jur., p. 213, sec. 117, that the purpose of such enactment was to change the established' rule which barred a recovery or defense upon additional grounds which were not pleaded, although they previously existed, until after the bar was complete. Thompson v. Van Howeling, Tex.Civ.App., 49 S.W.2d 961; Goodwin v. Hidalgo County Water Control & Imp. Dist., Tex.Civ.App., 58 S.W.2d 1092, par. 11. Apparently plaintiff intended and attempted in the several petitions filed by him prior to his third amended petition here under consideration, to allege concealment by said doctors of the negligent leaving of the gauze in his wife’s abdomen and of the closing of the incision without removing the same. Even if such allegations were subject to a general demurrer, they afforded, under the provisions of the article of the statute above cited, a basis for an amendment not subject to such demurrer and which would relate back to the filing of the original petition. 28 Tex. Jur., p. 217, sec. 120; Texas Employers Ins. Ass’n v. Humble Oil & Refining Co., Tex.Civ.App., 103 S.W.2d 818, par. 5, writ refused; Eureka Security Fire & Marine Ins. Co. v. De Ross, Tex.Civ.App., 62 S.W.2d 226, par. 1; 28 Tex.Jur., p. 190, sec. 97. See, also, 2 Tex.Jur.Supp., pp. 1832, 1833, sec. 97; Tex.Jur.Supp. (1939) p. 705, sec. 126.

Considering the allegations of plaintiff’s original petition as a whole and the situation presented thereby, we are not prepared to say as a matter of law that plaintiff’s cause of action was barred by the- two year statute of limitation at the time he filed such petition herein, nor that such allegations were insufficient to constitute a basis for the additional allegations contained in his third amended petition nor to prevent such additional allegations from relating back to the time of the filing of his original petition.

The judgment of the trial court is reversed and the cause remanded.


author: SMITH, Chief Justice.

text:
    STOLLEY et al. v. PETROLEUM PRODUCERS CO. et al.
    No. 10711.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1940.
    Gerald C. Mann, Robert Kepke, Dur-ward D. Mahon, James Noel, Polk Shelton, and Henry H. Brooks, all of Austin, for appellants.
    E. G. Lloyd, Jr., of Alice, Linebau'gh & Guittard, of Victoria, and Kilgore & Rogers, of Wichita Falls, for appellees.
   SMITH, Chief Justice.

This appeal is from an order refusing to appoint a receiver of fifty-six acres of land in a proven oil field in Duval County. R. R. Stolley, claiming the leasehold estate in the land under a mineral lease issued to him by the Commissioner of the General Land Office of Texas, brought suit in trespass to try title in the District Court of Duval County against J. B. Wood and the heirs of James F. Welder, who claimed the fee in the land, and their mineral lessees, Petroleum Producers Company and United Producers Company. The State of Texas intervened, claiming fee-simple title to the land. By final judgment of the trial court rendered on May 20, 1939, the State and its lessee, Stolley, recovered title and possession of said land, the fee-simple title thereto being awarded to the State, subject to Stol-ley’s leasehold estate of seven-eighths of the oil, gas and minerals in and under the land, which was awarded to him. From that judgment the defendants appealed, and on December 13, 1939, said judgment was affirmed by this Court in Petroleum Producers Company et al., v. R. R. Stolley et al., Tex.Civ.App., 137 S.W.2d 207, and an application for writ of error therein' was filed by the defendants in our Supreme Court.

Immediately after the trial court rendered said judgment in the above suit,, the State filed in said cause its application for the appointment of a receiver to take possession of the land, with full authority to make contracts for the drilling of oil wells thereon and for the development and operation of such wells and the marketing of oil and gas therefrom, pending appeal from the judgment in the main case. Both Stolley and the defendants answered, Stolley joining in the State’s application for a receiver and the defendants opposing it. Upon a hearing thereof, the trial court refused the application, from which action the State and Stolley appealed to this court.

Pending this appeal and before submission thereof in this court, our Supreme Court ordered dismissal of appellees’ application for writ of error in the main case as upon a correct judgment. In this situation, 'upon submission of this cause in this court, it was deemed proper, as a practical matter, to withhold decision of the appeal until our Supreme Court had acted upon any motions for rehearing in the main case. That has been done by overruling appellants’ motion for rehearing, thereby finally determining the main case upon the merits, entitling appellees to writ of possession of the land involved. The questions involved in this appeal are thereby rendered moot, and upon that ground the appeal will be dismissed at the cost of appellants in both the trial court and this court. It is so ordered.