author: LOONEY, Justice.

text:
    DRANE et al. v. JEFFERSON STANDARD LIFE INS. CO. et al.
    No. 12928.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1940.
    Rehearing Denied Jan. 11, 1941.

      Winfrey & Goldberg, of Dallas, for appellants.
    Malone, Lipscomb, White & Seay and Hamilton, Lipscomb, Wood & Swift, all of Dallas, and Beauford H. Jester, of Corsicana, for appellees.
   LOONEY, Justice.

This litigation arose as follows: The Jefferson Standard Life Insurance Company (a North Carolina corporation) issued two policies on the life of Miss Dorothy A. Drane; the first, for $5,510, was issued January 1, 1928, and the second, for $5,000, was issued January 7, 1937. There was attached to each policy a double indemnity rider, obligating the Company to pay “an additional amount equal to the face "amount” of the policies, if the death of the insured should result from an accident, under the circumstances mentioned; also, each policy had attached a rider, providing that, “If the death of the Insured should occur prior to the maturity of this policy as an Endowment, the proceeds of this policy shall be paid in a series of equal monthly installments of $50.00 each, in accordance with Option No. 4 on the fourth page of this policy. These installments shall begin on January 7th, 1947, if the Insured dies on, or before that date, or immediately upon receipt of due proofs of the death of the Insured after that date. During any period while the proceeds of this policy are being retained by the Company following the death of the Insured, but prior to January 7th, 1947, interest thereon shall be accumulated at such rate as declared by the Directors of the Company, but not less than 3½% per annum compound interest, and any such accumulated interest shall be used to extend the period over which the installments of $50.00 each are paid. These installments shall be paid to Harry Eugene Ezell, Jr., friend of the Insured, if living on the due dates; otherwise to Harry Eugene Ezell, Sr., friend of the Insured, if living on the due dates. Any portion of the proceeds remaining with the Company 'without provision as to final disposition shall be payable to the executors, administrators or assigns of the last beneficiary tvho received benefits thereunder.”

On September 20, 1937, Miss Drane was killed in an automobile accident, within the terms of the riders providing for double indemnity. She left a will in which her brother, Hugh A. Drane, was appointed independent executor; the will being duly probated, Mr. Drane qualified as independent executor. Harry Eugene Ezell, Jr., mentioned as beneficiary in the riders, being a minor, his father, Dr. Harry Eugene Ezell, mentioned as alternative beneficiary in the riders, was appointed and qualified as guardian of the person and estate of his son. Early in October, Mr. Drane, as independent executor, notified the Company that the proceeds of the policies belonged to the estate of Dorothy A. Drane, deceased, and, furnishing the Company with proofs of death, demanded payment. The Company was also notified by the Ezells that the proceeds of the policies belonged to Harry Eugene Ezell, Jr., under the riders hereinbefore set out, also furnished the Company with proofs of death, and demanded payment.

(Harry Eugene Ezell, Sr., mentioned as alternative beneficiary in the riders, claimed no interest in the policies; his disclaimer was made in open court and is a part of the statement of facts, pp. 96-97.)

The Insurance Company did not at any time deny its liability, and it seems that, until March 21, 1938, the rival claimants sought to reach a compromise settlement, but failing, the attorney for Mr. Drane, independent executor, on the date just named, notified the Company that efforts to compromise had proven fruitless, and on March 23, 1938, sued the Company on the policies, brought in as defendants Harry Eugene Ezell, Jr., Harry Eugene Ezell, Sr., in his individual capacity and as guardian of the person and estate of his son, alleging in detail the material facts as just outlined, and further that neither of the Ezells, senior or junior, has, or ever had, an insurable interest in the life of Dorothy Drane by reason of any relationship to her, either of consanguinity or affinity, or as a creditor, or by reason of any other fact; praying that the Ezells be decreed to have no interest whatever in the policies or the proceeds thereof, and that plaintiff, as independent executor of the estate of the insured, recover of and from the Company the face amount of the policies, and an additional amount equal to the face amount, under the double indemnity provisions, with interest; alleging that the' Company had failed to pay within thirty days after demand; prayed for 12% damages and a reasonable attorney’s fee, as provided1 iri Article 4736, R.C.S. Vernon’s Ann.Civ.St. art. 4736, and for general relief.

The Insurance Company seasonably filed its petition for removal of the cause to the United States District Court for the Northern District of Texas, Dallas Division. In its petition for removal, the Company, among other things, alleged that, “the controversy, in so far as this defendant is concerned, consists of .the mode and manner in which the proceeds of said policies should be paid; * * However, by agreement, the cause was remanded to the State court, one-half the costs incident to the removal being taxed against each of the rival claimants.

The pleading filed by the Company, after the cause was remanded to the State court, was in the nature of an interpleader, admitting the issuance and delivery of the policies, the death of the insured; alleged the rival claims made upon it for payment of the proceeds of the policies; that it had never “refused to pay the proceeds of said policies to the proper person, or persons, and in such manner and amounts as will be in accordance with its policy obligations, and will fully protect its interests in the premises, and it has, at all times, so informed the rival claimants to said funds.”, and further that, “Your defendant here alleges that it is now, and at all times has been, ready, willing and able to carry out its policy obligations in full and to pay said sums, either in a lump sum or in accordance with the terms and provisions of said riders, to whomsoever this Court may determine is the proper person, and according to the method of payment which this Court may decree that such sums should be paid. That this defendant is further ready, willing and able to pay the proceeds of said policies into the registry of the Court in the event this Court should so decree, but it has not done so because of the controversy between the above parties as to the manner in which such payments should be made, as well as the proper person to whom they should be so paid.” (Tr. p. 28.) The Company alleged further that, it was in great doubt as to who was entitled to the proceeds, and the manner in which they should be paid, disclaimed any interest in the funds and asked for an interpleader’s fee (attorney’s fee) in such amount' as the court may decree.

The Ezells answered the suit and filed a cross action on the policies, alleging in detail the material facts heretofore outlined, also that, at the respective dates of issuance of the policies and continuously afterward to the death of Dorothy A. Drane, Harry Eugene Ezell, Jr., had an insurable interest in her life, in that their relationship during the entire time mentioned and at her death, was such as to create and show that he had a reasonable expectation of pecuniary benefits and advantages from the continued life of the insured, praying that the plaintiff, Hugh A. Drane, independent executor of the estate of the deceased, take nothing, and that the court enter its order and judgment, decreeing the payment of the proceeds of said policies of insurance to Harry Eugene Ezell, Jr., in conformity with the provisions of the respective riders attached to the policies involved, and that they recover against plaintiff all costs incurred* and for general relief, but did not seek recovery of the statutory penalty of 12% damages, and attorney’s fees.

The case was tried without a jury, resulting in a judgment in favor of Harry Eugene Ezell, Sr., guardian of the person and estate of Harry Eugene Ezell, Jr., and Harry Eugene Ezell, Jr., that they recover on their cross action of and from the Jefferson Standard Life Insurance Company the aggregate face amount of the policies, and an additional amount equal to the face of the policies, under the double indemnity riders, aggregating $21,020, together with interest, at such rate as shall be determined by the Board of Directors of defendant Company, but, in no event, to be less than 3½% per annum, compounded from September 27, 1937, and that said sum, together with interest, shall be paid to Harry Eugene Ezell, Jr., in equal monthly installments of $200 • each, beginning on January 7, 1947.

The court also adjudged that, if Harry Eugene Ezell, Jr., should die before the total of said respective payments, together with interest as compounded, should be paid, any unpaid balance thereof shall be due and payable to the plaintiff Hugh A. Drane, as independent executor of the Estate of Dorothy A. Drane, deceased, as. contingent beneficiary. The plaintiff and the Ezells excepted, gave notice of and duly perfected appeals.

The gravamen of the contention of appellant is that, the riders attached to the policies, naming Harry Eugene Ezell, Jr., beneficiary, are void, because he had no insurable interest in the life of Dorothy A. Drane, in that he was not related to her in any degree by either- blood or marriage, was not legally or morally dependent upon her for support, and did not have a reasonable expectation of pecuniary benefits from the continued life of the insured; hence, that the court erred in awarding the proceeds of the policies to Harry Eugene Ezell, Jr., and in not awarding same to appellant.

As Harry Eugene Ezell, Jr., was not related to Miss Drane by either blood or marriage, or legally or morally dependent upon her for support, his claim of an insurable interest in her life must rest upon a reasonable expectation of pecuniary benefits from the continuation of her life.

Our attention has not been called to any authority denying the proposition that an insurable interest in the life of another may rest upon a reasonable expectation of pecuniary benefits or advantages from the continued life of the insured; on the contrary, many authorities affirm the correctness of that doctrine. In the case of Taylor v. Travellers’ Ins. Co. 15 Tex.Civ.App. 254, 39 S.W. 185, 186, the court said: “Whenever there is such a relationship that the insurer [beneficiary] has a legal claim on the insured for services or support, or when, from the personal relation between them, the former has a reasonable right to expect some pecuniary advantage from the continuance of the life of the other, or to fear loss from his death, an insurable interest exists.” In Wilton v. New York Life Ins. Co., 34 Tex.Civ.App. 156, 78 S.W. 403, 404, the rule was again announced in this language: “Such interest [that is, insurable interest], however, may exist in one not so related by blood or affinity to the insured when the facts show that he has a reasonable expectation of pecuniary benefit or advantage from the continued life of the insured.” And in American Nat. Ins. Co. v. Wallace, Tex. Civ.App., 210 S.W. 859, 860, the doctrine was set forth as follows: “If Gussie Lowe and Willie Moore were grandnieces of Lizzie Barkin, their relationship was too remote to show that they had any insurable interest in her life, in the ab-sence of testimony tending to show that they had reasonable ground to expect that if she had remained alive she would have contributed substantially to their welfare, financial or otherwise.” The same doctrine was announced by the United States Supreme Court in Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U.S. 457, 461, 24 L.Ed. 251, 253, 254, as follows: “All, therefore, which it seems necessary to show, in order to take the case out of the objection of being a wager policy, is, that the insured has some interest in the cestui que 'vie; that his temporal affairs, his just hopes and well-grounded expectations of support, of patronage, and advantage in life, will be impaired; so that the real purpose is not a wager, but to secure such advantages, supposed to depend on the life of another; such, we suppose, would be sufficient to prevent it from being regarded as a mere wager.” Textwriters announce the same doctrine. Volume 1, Couch on Insurance Law, p. 764, says: “In brief, any reasonable expectation of pecuniary benefit or advantage from the continued life of another creates an insurable interest in such life.” And Cooley’s Briefs on Insurance, Vol. 1, p. 374, discussing this phase of an insurable interest, says: “As to what must be the nature of the pecuniary interest necessary to support the policy, the principles laid down in Appeal of Corson, 113 Pa. 438, 6 A. 213, 57 Am.Rep. 479, may fairly be regarded as sustained by the weight of authority. The court said that an insurable interest is not necessarily a definite pecuniary interest, such as is recognized and protected by law. It may be contingent, restricted as to time, or indeterminate in amount; but it must be actual, such as will reasonably justify a well-grounded expectation of advantage, dependent on the life insured, so that the purpose of the person effecting the insurance may be to secure that advantage, and not merely to put a wager on human life.”

The material facts bearing upon the issue are these: Harry, Jr., was born in the home where Miss Drane resided; from the date of his birth until the insured lost her life she manifested a sincere devotion for and interest in the boy. He seemed to have aroused in her the mothering instinct, manifested until her death, which she met in an automobile wreck while en route from her home in Corsi-cana to College Station, carrying gifts to Harry, who had just entered A. & M. College, as a freshman.

Mrs. John A. Pierce, a lifelong acquaintance and friend, testified that she knew Miss Drane was vitally interested in Harry from his birth; expressed her interest in and love for him, and her hope that he would get a good education; testified that Harry’s parents were living in Miss Drane’s home when he was born; while a young boy, his mother became an invalid; had to go to different climates; was gone off and on for five years. During this period, Harry lived in the home with Miss Drane, who cared for the boy just as a mother would have done; took him to school every day and brought him back.

Mrs. Rollin Shaw Guest testified that she had known Miss Dorothy Drane for about 29 years; was associated with her in different clubs; testified to Miss Drane’s interest in Harfy; went to school for him every day; told witness that she loved Harry better than anything in the world, and was happy to buy him clothing and other things that gave him pleasure; testified that Miss Drane manifested this feeling toward the boy from the time of his birth; had brought him to the home of witness when a tiny baby, playing with and amusing him.

Dr. Kelton, Corsicana physician, testified that he attended Harry’s mother when he was born; that Miss Drane was present in the house on the occasion; that he had frequently seen Miss Drane and Harry together during the remainder of her life; that she kept Harry at the Drane home when his mother was sick, and away.

Mrs. Priscilla Baum testified to the care and treatment bestowed by Miss Drane upon Harry while his mother was sick and away from home, and, likewise, to different things she supplied him.

Mrs. Eugene Ezell, mother of Harry, testified that he was born in the house occupied by his parents and Miss Drane; that some time after his birth, she and her husband removed to a cottage, that Miss Drane made her home with them; later, Miss Drane’s father and mother moved to the country, but, not desiring to live at the country place, Miss Drane moved her clothing, piano, rugs and other personal belongings to the home of witness and her husband and lived with them while they resided in the cottage, and that, after witness and her husband built their own home, Miss- Drane seemed to consider it her home as much as she did the Drane home in the country, and preferred staying with them; testified that when Harry w-a.s christened, Dorothy was named as godmother. Witness also testified to an injury Harry sustained to one of his eyes, about June 1, 1930. He lost the sight of one of his eyes as the result' of the accident; was treated by Dr. McReynolds, of Dallas; was brought from Corsicana to Dallas for treatment by Miss Dranej in her car, daily at first, then every other day, then twice a week, then once a week, and then once a month, over a period of about two years, Miss Drane accompanying Harry on every trip. Witness also testified that, because of illness, she left her home at Corsicana in September, 1930, went to San Angelo, was there five months, returning to Corsicana in April, 1932; then went back to San Angelo and stayed until July, 1932; from there, went to Los Angeles and remained until November, 1932; thereafter went to El Paso and stayed at a sanatorium fifteen months; went from there to Los Angeles and was there four months, returning home in November, 1934. During each of these absences, Harry was with Miss Drane. Witness thought she was the only logical person in the world to take care of him, as she had been in the home with him since his birth; had never been out of his life, except infrequently when he was away on visits. He called Miss - Drane “Aunt Dorothy”. Witness testified to the expenditures made by Miss Drane on behalf of Harry, as well as her continuous personal care of him.

Mrs. Getty Marschall, employed for more than fifteen years as a clerk in the boys’ department of E. M. Kahn & Company, Dallas, testified that it was there, soon after she began work, she met Dorothy Drane, who became one of witness’ first customers; at the time Harry was wearing wash suits, she began to fit him in clothes, and always fitted him; Miss Drane brought him along to the store most of the time; sometimes she would come in with friends and take things out; brought him into the store with her when a very small boy. Witness knew Miss Drane was deeply interested in Harry; manifested it as most mothers would manifest - an interest in their own sons; was concerned in regard to his appearance; wanted him to look as well, if not better than, other children; witness thought Miss Drane was his aunt because of the interest she manifested. Witness waited upon Miss'Drane until Harry became too old for her department, then took him downstairs to one of the men to help fit him in men’s clothes, and thereafter went with Miss Drane to that department; sold Miss Drane clothing for Harry every spring and fall, and she never objected to the price paid.

Ben Thomas, a former clerk in the Nei-man-Marcus Store in Dallas, testified that he sold goods to Miss Drane for Harry, beginning in January, 1937; formerly, she had been a customer of another clerk in the store. She bought for Harry, sometimes bringing him with her and sometimes buying without his being present. The last transaction witness had with her was on September 14, 1937, a few days before her death, when she called over the ’phone from Corsicana and ordered a Tuxedo for Harry; witness sent, by special delivery, two Tuxedos — one of the finest quality, the other, less expensive. She kept the finest and most expensive and returned the other. Witness listed numerous articles that Miss Drane purchased for Harry in 1937, running into several hundred dollars.

Hugh Bryant, a pharmacist in Corsicana, testified that Miss Drane was attached to Harry and looked after his welfare. At the Bryant store in Corsicana, she gave Harry the benefit of her account and never questioned anything he purchased. He would come into the store, get things, and have them charged to her account, and at times paid his bills with checks signed by Miss Drane. This account was kept in this manner until her death. Miss Drane talked with witness about plans and provisions she desired to make for Harry. In the late summer before he entered A. & M. College, told witness that she had made plans for Harry’s education; she wanted him to have the benefit of A. & M. College and then study medicine, stating that it would require something like ten or eleven years to finish, and she was making preparations to see that he got through college.

Mark H. DeWitt, district manager of the Jefferson Standard Life Insurance Company at Corsicana, testified that, prior to the trial, he had resided in Corsicana seventeen years; was well-acquainted with the Drane family, associated with them in church work in the Third Avenue Presbyterian Church, in which they were prominent; their relations were close and intimate. Witness knew Miss Drane quite well, as witness was active in Sunday school work and she was secretary and treasurer of the Church. Witness’ attention was first attracted to the fact that Miss Drane always brought Harry, Jr., with her to Sunday school and frequently took him to church with her: saw them together all the time from this time on until her .death; frequently visited in the Drane home and got the habit of seeing Harry there, and looked for him there; testified that Miss Drane took him on trips and gave him the advantages of travel. About a year before dying, she took the boy and a young friend of his on quite an extended trip out on the West Coast; took him to the Rose Bowl in California, on the occasion of the ball game between the California team and Southern Methodist University; took him to Canada and the Northwest. Miss Drane called witness about the first of December, 1927, and talked with him about an educational insurance proposition for Harry, who was then about seven years old. She called him “Little Harry”; went into the proposition of providing Harry with funds to insure his education in case of her death. She took out a policy for $5,510, which she thought was sufficient to provide $100 per month income for four years, but in December, 1936, called witness to her home, after he had been discussing with her the matter of changing the policy from its then existing form to an indemnity policy, told witness that she was ready to do something about her insurance; that provisions had already been made for Harry’s education, and she wanted to keep the insurance and make it begin paying him a certain sum of money when he had finished his college education; stated that she wanted him to have $100 per month for at least ten years after he finished his interneship and began the practice of medicine, and that she wanted to convert the policy she then had into an indemnity policy that would mature in ten years from that date, or when Harry was supposed to get through, which was in 1947, or about that date; said she wanted the boy to have a break when he got through school, and enough money to pay his rent and telephone bill until he obtained a practice that would make him a living, or until he could make a living. Witness told Miss Drane that the $5,510 original policy would not provide that much money for that length of time, and she then said: “Well, write me another $5,000 of insurance; that will do it, won’t it?”; witness answered that it would, and this accounts for the issuance of the policy for $5,000.

On Saturday before her death on the Monday following (Harry, Jr., having just entered A. & M. College as a freshman), Miss Drane wrote him (omitting immaterial parts) as follows: “Saturday afternoon. My dear Harry — True to my promise I am going to have a letter for you on Sunday and I’ll try to have one for you on every Sunday and I expect sometimes in between — certainly until you get used to your new surroundings. I don’t want you to feel burdened about answering my letters because you will have plenty to - do without having that hanging over you, but after you write your mother and your daddy, if you have any time left, your Auntie will be grateful for one of those postcards she put in your trunk. You just make yourself comfortable about it and it will be O.'K. by me just as everything else we understand each other about. * * * Have an angel food cake in the oven for tomorrow and what is left of it I’ll bring -down Monday along with the pie. You will have to hide it tho’ to keep the other boys from taking it away from you. * * * Sure hope you get an early place in line and don’t have to wait all day. for your physical exam. I am not going to rave on in every letter about home (how) I miss you because you know that anyway, but I do want you to always remember that your Auntie loves you more than anyone in the world, and that you can always come to me for anything and about everything and know that I won’t let you down. If I have .always your love and respect and confidence, that is all I ask as recompense for the things I have always done for you and the pleasures I’ve helped make possible, if any — . Now I must go look after my cake but send you all my love, and will .see you Monday. Devotedly, Auntie.”

We doubt if a case could be made, though rehearsed for the purpose, revealing a deeper, more sincere and constant devotion of a woman for a child not her own, or more thoughtful ministries than were bestowed upon Harry by Miss Drane. Her affection for him was not simply the passing fondness such as the innocence and guilelessness of his infancy would arouse, but was persistent; her benefactions were not sporadic or occasional, but came constantly and increasingly as Harry approached manhood. Her love for the boy seems to have been the ruling passion of her life, revealed in many ways, but notably in the statement to her neighbor, Mrs. Guest, also in the letter to Harry, written two days before her accidental death, that she loved him more than anything in the world, assuring him in that letter that, “You can always come to me for anything and about everything and know that I won’t let you down.”

We think the conclusion inescapable that Harry, Jr., had an insurable interest in the life of his devoted friend, Miss Dorothy A. Drane, at the time of the issuance of the policies and continuously to the time of her death, in that he had a reasonable expectation of pecuniary benefits and advantages from the continuation of her life.

Appellant contends however that, admitting Harry Eugene Ezell, Jr., had a reasonable expectation of pecuniary benefits from the continued life of the insured, the naming of Harry Eugene Ezell, Sr., as alternative beneficiary (who admittedly had no insurable interest in the life of the insured) vitiated the rider in toto, in that the valid provision in favor of Harry Eugene Ezell, Jr., cannot be segregated from the' invalid provision in favor of Harry Eugene Ezell, Sr., therefore, the court erred in rendering judgment in favor of Harry, Jr. The argument in support of the above propositions is that, “The beneficiary clauses purporting to grant Harry Eugene Ezell, Sr., certain rights in the policies are inseparably bound up with the entire beneficiary clauses contained in the riders attached to the policies of insurance, and the entire clauses contained in said riders must fall.” Appellant cites no authority in support of the proposition just stated and, in our opinion, none will be found.

Appellant also contends that the court, erred in admitting in evidence, over his objection, the letter from Dorothy A. Drane to Harry Eugene Ezell, Jr., written on the Saturday prior to her death on Monday, the contention being that its admission was vio-lative of Article 3716, R.C.S., in that the letter evidenced a transaction between Harry Eugene Ezell, Jr., and the deceased (appellant’s testatrix), and constituted statements by the deceased to appellee, Harry, Jr.

We do not think the court erred in the respect under consideration. The letter was proven to be in the handwriting of Miss Drane on the testimony of Mrs. Ezell, mother of Harry. She was not a party to the suit; her husband, Dr. Ezell, was not a party to the suit, except in a representative capacity,, and had expressly disclaimed any interest in the.proceeds of the policies, except as guardian of the estate of his son, Harry, Jr. Under these circumstances, Mrs. Ezell not being either a necessary or proper party to the suit, the court did not erf in permitting her to testify as to the handwriting of the deceased, or in admitting the letter in evidence. See Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717, by the Supreme Court. However, even if improperly admitted, the contents of the letter were simply cumulative, accentuating and emphasizing the facts abundantly established by the testimony of other witnesses. The trial being without a jury, no harm, in our opinion, could have resulted to appellant by reason of- the admission of the letter in evidence, even if improperly admitted.

Even if it could be said that appellant is entitled to the proceeds of the policies as independent executor of the estate of Dorothy A. Drane, deceased, we do not .think he would be entitled to recover 12% damages and a reasonable attorney’s fee, provided by the statute (Art. 4736). As heretofore stated, the Company did not deny liability, but timely filed an inter-pleader, expressing grave doubt as to who was entitled to the proceeds of the policies and as to the manner the same should be paid; disclaiming any interest in the fund, sought the advice of court, and prayed for the allowance of a reasonable interpleader’s (attorney’s) fee.

In the decree, the following finding, pertinent to the question under consideration, was made: “The court finds that the defendant Jefferson Standard Life Insurance Company, has never contested or denied its liability under said above described policies of life insurance, which matured on Sept. 20, 1937, for the respective sums of $11,-020.00 and $10,000.00 by reason of the death of Dorothy A. Drane on that date which resulted- from bodily injuries effected directly and independently of all other causes through external, violent and accidental means, or a total of $21,020.00, but that it has expressly admitted its liability and merely sought to ascertain who, as between the plaintiff and the other defendants herein, is entitled to receive the proceeds of said policies. (Tr. p. 34)” The court awarded the Company $500, as a reasonable attorney’s fee for services in the trial court, and an additional $250 for services rendered in the Appellate Court, same to be deducted from the proceeds of the policies.

The findings set out in the decree, in our-opinion, are amply sustained by evidence and are adopted, as our conclusions on the issue under consideration. There being rival claimants of the fund, and the Company’s interpleader having been seasonably filed, the failure of the Company to pay the proceeds of the policies to appellant on his demand not being willful, we do not think the Company should be penalized. See Nixon v. Malone, 100 Tex. 250, 98 S.W. 380, 99 S.W. 403; Southwestern Ins. Co. v. Woods Nat. Bank, Tex.Civ.App., 107 S.W. 114; Hall v. San Jacinto State Bank, Tex.Civ.App., 255 S.W. 506; Finn v. Metropolitan Life Ins. Co., Tex.Civ.App., 16 S.W.2d 922.

Appellee, Harry Eugene Ezell, Sr., as guardian of the estate of his son Harry, Jr., cross-assigns error (apparent of record), contending that the trial court erred in denying appellee payment of the double indemnity in a lump sum. This proposition involves the construction of the provisions of the insurance contract found in the riders heretofore set out. While the double indemnity rider obligated the Insurance Company to pay, in the event of the accidental death of the insured, double the amount mentioned in the face of the policies, yet we find no warrant for the contention that the amount, accruing under the double indemnity provisions, is separable from the face amount of the policies, or should be paid in a lump sum; on the contrary, think it obvious that the amount, thus accruing, blends with the face amount and is payable on the dates and in the installments, as provided, the difference being that the installments are doubled by reason of the double indemnity provisions.

The riders designating Harry Eugene Ezell, Jr., as beneficiary provide that, “These installments shall be paid to Harry Eugene Ezell, Jr., friend of the insured, if living on the due dates; otherwise to Harry Eugene Ezell, Sr., friend of the insured, if living on the due dates. Any portion of the proceeds remaining with the Company without provision as to final disposition shall be payable to the executors, administrators or assigns of the last beneficiary who received benefits thereunder.” Several important questions are suggested: Was Harry, Jr., vested with full title to the entire fund, on the death of the insured, or did he simply take the ' amounts as and when collected on the due dates? If the entire fund did not vest immediately in Harry, Jr. (Dr. Ezell having disclaimed), who would be entitled to collect the fund in case of his death prior to January 7, 1947, the due date of the first installment, or in case of his death afterwards but before the fund was all paid under the plan provided, leaving proceeds remaining with the Company ? These questions are not before us for adjudication and, as Harry is still alive, could not have arisen. It follows, we think (although we make no adjudication in regard to the matter), that the attempt of the court to determine who should take on the death of Harry Eugene Ezell, Jr., was premature, in that such a question had not arisen; hence, being without jurisdiction, the court’s adjudication to the effect that Hugh A. Drane, independent executor, should take on the death of Harry, Jr., was coram non judice, and void.

After an exhaustive consideration of the case, we think the judgment of the court below should be affirmed, therefore overrule all assignments of error, and appel-lees’ cross-assignment, and affirm the judgment.

Affirmed.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    TRI-STATE ASS’N OF CREDIT MEN v. HINSON.
    No. 7461.
    Supreme Court of Texas.
    Jan. 22, 1941.
    For former opinion, see 144 S.W.2d 881, reversing 117 S.W.2d 158.
    David J. Smith, of El Paso, for plaintiff in error.
    Mae M. Ament, of Alpine, for defendant in error.
   GERMAN, Commissioner.

Plaintiff in error insists in motion for rehearing that this cause be reversed and judgment rendered in its favor! This contention is based primarily upon a statement which was inadvertently made in the original opinion. This statement is as follows: “Nothing was pleaded by defendant which would avoid the binding effect of the note of May 19, 1932. It follows, therefore, that judgment should be rendered in favor of plaintiff on same.” The statement should have been as follows “Nothing was pleaded by defendant which would avoid the binding effect of the note of May 19, 1932. It follows, therefore, that judgment should have been rendered in favor of plaintiff on same.”

In other words, we intended to state that in the trial court, in light of the pleadings, the court should have rendered judgment in favor of plaintiff.

The case was tried upon the theory that’ limitation had been pleaded. It is evident that defendant in error intended to plead limitation, but failed to properly do so. Justice requires that the cause be remanded, and the motion is therefore overruled.

Opinion adopted by the Supreme Court.


author: PER CURIAM.

text:
    SIMPSON-FELL OIL CO. et al. v. STANOLIND OIL & GAS CO. et al.
    No. 6995.
    Supreme Court of Texas.
    Oct. 9, 1935.
    For former opinion, see 125 S.W.2d 263.
    Edwin Lacy, Angus G. Wynne, and Jack E. Price, all of Longview, Harris & Harris, of Austin, Fred V. Hughes, of Tyler, and George Otey, of Ardmore, Old., for plaintiffs in error.
    Turner, Rodgers & Winn and C. R. Winn, all of Dallas, for defendant in error Stano-lind Oil & Gas.
    Thompson, Knight, Baker, Harris & Wright and Lewis Dabney, all of Dallas, for defendant in error Simms Oil Co.
    Brachfield & Wolfe, of Henderson, and John Broughton, Walter C. Clemons, and John E. Green, Jr., all of Houston, Texas, for defendant in error Gulf Production Co.
   PER CURIAM.

While adhering to the general principles of law announced in the original opinion in this case, reported in 125 S.W.2d 263, the Court is of the opinion that there was error in affirming judgment of the Court of Civil Appeals, 85 S.W.2d 325, which reversed and rendered judgment of the district court. This is based on the conclusion that it was not shown as a matter of law that there had been such a course of dealing on the part of Leland Fikes and those holding under him with reference to the 50-acre tract as amounted to a “ratification of the action of Burris in assigning the oil, gas and mineral leases in the south 200 acres.” The Court is of the opinion that an issue of fact is presented in this respect, and that upon this theory the case was not fully developed.

The Court is further of the opinion that in determining the question of whether or not Fikes at the time he made his lease to Magnolia Petroleum Company could have fully satisfied his interest out of the 50 acres, and upon the question of whether or not a recovery by plaintiffs of their undivided interest in the south 200 acres will injuriously affect or impair the equitable interests of defendants as to said 200 acres, the burden of proof is upon the defendants. To this end it is suggested that Fikes, the Magnolia Petroleum Company, and all parties interested under them in the 50 acres be made parties to this action.

The motion for rehearing is granted, and the judgments of the Court of Civil Appeals and district court are both reversed, and the cause is remanded to the district court for a new trial.


author: SHARP, Justice.

text:
    TEXAS & N. O. R. CO. v. SCHOENFELD et al.
    No. 7567.
    Supreme Court of Texas.
    Jan. 22, 1941.
    Baker, Botts, Andrews & Wharton, of Houston, and Brooks, Napier, Brown & Matthews and Harper McFarlane, all of San Antonio, for plaintiff in error.
    Ingram & Morris, of San Antonio, for defendants in error.
   SHARP, Justice.

Mrs. Nellie G. Schoenfeld, joined by her husband, Charles M. Schoenfeld, filed this suit against the Texas & New Orleans Railroad Company to recover damages alleged to have been sustained by virtue of the removal by the Railroad Company of its spur track which had been situated on a tract of land owned by Mrs. Schoen-feld. The case was tried before the court without the aid of a jury, and the trial court entered judgment in favor of Mrs. Schoenfeld, and against the Texas & New Orleans Railroad Company, for the sum of $2,203.12; from which judgment the Railroad Company appealed to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 124 S.W.2d 910.

A portion of the spur track involved in this suit was originally built by the San Antonio. & Aransas Pass Railway Company in the year 1907, for the purpose of serving lime kilns constructed on land which in 1919 Charles M. Schoen-feld purchased with the view of establishing a rock quarry. Charles M. Schoen-feld purchased the 60 acres of land, on which the spur track was located, in 1919, for the sum of $6,000. Schoenfeld shipped out many carloads of rock. In 1924 he entered into a contract for an extension of the spur. In December, 1931, Schoenfeld sold and conveyed the tract of land to his wife, Mrs. Nellie G. Schoen-feld. In 1936 the Texas & New Orleans Railroad Company, being the successor in title to all the property theretofore belonging to the San Antonio & Aransas Pass Railway Company, entered upon the 60 acres and took up the ties, etc., out of which the spur track had been built, and removed same from the premises.

The trial judge made extensive findings of fact, which are copied in the opinion of the Court of Civil Appeals. Without copying such findings in this opinion, wc refer to the opinion of the Court of Civil Appeals for such findings. We shall state the substance of such findings in this opinion, which are pertinent to the questions considered and discussed. ■ The .trial court found:

(a) That at the time Charles M. Schoen-feld entered into possession of the 60 acres of land there was situated upon the 60 acres of land a spur railroad track, approximately 651 feet in length from the switch point on the San Antonio & Aran-sas Pass Railway, Kerrville Division Main Line, to the terminus of such spur on said 60 acres of land, of which spur 213 feet were 'on the railroad right of way and 438 feet at that time, October 14, 1919, were on said 60 acres.

(b) That on September 14, 1936, the Texas & New Orleans Railroad Company removed 838 feet of track; approximately 213 feet being on the right of way and the remaining 625 feet being on the 60 acres of land owned by Schoenfeld.

(c) The court further found that Charles M. Schoenfeld owned no railroad cars or locomotives, except some narrow-gauge equipment, which'would not be susceptible of use on the. spur track involved in this controversy; and that the cars and locomotives operated on the spur track were operated by the Texas &.New Orleans Railroad Company.

(d) The court found that a section of said spur track involved was originally constructed in 1907 by the San Antonio & Aransas Pass Railway Company, and that said Company constructed an addition of 60 feet to the spur track in 1908; and in 1914 a second extension, of 90 feet, was added to the track of the San Antonio & Aransas Pass Railway Company.

(e) The trial court concluded that the spur track involved in the controversy was not at any time, and never became, a permanent fixture and a part of the realty, and that, therefore, the said Charles M. Schoenfeld did not acquire title to said 'spur track upon purchase of the real estate in 1919, and that, therefore, Mrs. Nellie G. Schoenfeld did not acquire title to such spur upon her purchase from Charles M. Schoenfeld in 1931.

The Railroad Company contends that the Court of Civil Appeals erred in holding that a railroad company in Texas does not have the power of eminent domain to condemn property for a right of way to reach a lime kiln or rock quarry on private property. As we interpret the opinion, it is held that, under the facts existing in this case, the Railroad Company could not exercise the right of eminent domain. It is not questioned that the Railroad Company is legally incorporated under the law. Its right to condemn property for a right of way necessarily fol-. lows. That the Railroad Company has the power, under the law, if necessary, to condemn property like tha.t in controversy, is now, we think, clearly established. See Articles 6316a, 6319, 6336, 6351, 6509, and 6550, Revised Civil Statutes of 1925; West v. Whitehead, Tex.Civ.App., 238 S.W. 976, writ of error refused; Buffalo Bayou, B. & C. Railway Co. v. Ferris, 26 Tex. 588, 598; Croley v. St. Louis Railway Co., Tex.Civ.App., 56 S.W. 615; Kansas & T. Coal Railway Co. v. Northwestern Coal Co., 161 Mo. 288, 61 S.W. 684, 51 L.R.A. 936, 84 Am.St.Rep. 717; Railroad Co. v. Newton, 133 N.C. 132, 136, 45 S.E. 549; Butte, A. & P. Railway Co. v. Montana U. Railway Co., 16 Mont. 504, 41 P. 232, 31 L.R.A. 298, 50 Am.St.Rep. 508; Ulmer v. Lime Rock Ry. Co., 98 Me. 579, 57 A. 1001, 66 L.R.A. 387; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 46 P. 790, 34 L.R.A. 368, 60 Am.St.Rep. 818. This contention is sustained.

The Railroad Company further contends :

(1) That the Court of Civil Appeals erred in holding that where a railroad constructs a spur track to connect its main line with a lime kiln or rock quarry, the material in that portion of such spur, constructed upon land not belonging to the railroad, constituted a portion of the underlying real estate, so that title to said material would pass under a deed to the underlying real estate.

(2) That the Court of Civil Appeals erred, as a matter of law, in failing and refusing to reverse the conclusion of the trial court that on December 14, 1931, Charles M. Schoenfeld had acquired title by adverse possession to the. 438 feet of spur track that was constructed before October, 1919.

The opinion of the Court of Civil Appeals overruled and reversed the conclusion of the trial court, which held that the material in the track in controversy was not a permanent fixture, and did not become a part of the real estate; so that title to such material did not pass by virtue of the delivery of a deed to the underlying real estate.

The evidence disclosed that the only use made of said track was by the locomotives and cars of the Texas & New Orleans Railroad Company and the San Antonio & Aransas Pass Railway Company, operated by employees of such railroads ; and hence no use of the spur track hostile to the Railroad Company was shown. -

It is necessary, as a matter of law, in order to acquire title to personal property by adverse possession, that such property be in the possession of the party- claiming title for the required time; that such property be used by the claimant; and that the possession and use be under claim of right exclusive and hostile to the owner. The mere fencing of the real property would not meet the requirements essential to acquire by limitation the personal property located thereon. The findings made in this case, with respect to such personal property, fail to show such claim, possession, and use by the Schoenfelds as would justify the legal conclusion that they had acquired such property from the Railroad Company by limitation.

The Schoenfelds claimed that the track was part of the real estate in 1919 and 1920, so that Charles M. Schoenfeld acquired title to the track by virtue of a contract executed in 1919 and a deed in 1920, which purported to convey only real estate. If the track was not real estate in 1920, then Schoenfeld did not acquire title to the track by such deed, and the subsequent conduct and actions of the parties would not affect the status of the track at the time the deed was executed. Texas & Pacific Ry. Co. v. Hays, 3 Willson Civ.Cas.Ct.App. p. 79, § 56; Preston v. Sabine & East Texas Ry. Co., 70 Tex. 375, 7 S.W. 825; Farrar v. Nashville, C. & St. L. Ry. Co., 162 Tenn. 313, 36 S.W.2d 95; Palmer v. Delaware, L. & W. R. Co., 277 Pa. 1, 120 A. 668; Jones v. Southern Ry. Co., 6 Cir., 285 F. 19; Louisiana, R. & N. Co. v. Cash Grocery & Sales Co., La.App., 150 So. 57; Sonken v. Gemmill, 94 Ind.App. 114, 151 N.E. 355; Northern Pacific Ry. Co. v. Tacoma Junk Co., 138 Wash. 1, 244 P. 117; Raulf Co. v. Harris, 195 Wis. 311, 218 N.W. 206; Talley v. Drumheller, 143 Va. 439, 130 S.E. 385; Northern C. R. Co. v. Canton Co., 30 Md. 347; Illinois C. R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150, 92 Am. St.Rep. 612; Cayuga R. Co. v. Niles, 13 Hun, N.Y., 170; American Steel & Iron Co. v. Taft, 109 Vt. 469, 199 A. 261; Hubbard v. Missouri Pac. R. Co., D.C., 288 F. 945; Placer County v. Lake Tahoe Ry. & Trans. Co., 58 Cal.App, 764, 209 P. 900; St. Louis, K. & S. W. R. Co. v. Nyce, 61 Kan. 394, 59 P. 1040, 48 L.R.A. 241; Illinois Cent. R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Helena & Livingston Smelting & Refining Co. v. Northern Pacific Ry. Co., 62 Mont. 281, 205 P. 224, 21 A.L.R. 1080.

The case of Palmer v. Delaware, L. & W. R. Co., supra [277 Pa. 1, 120 A. 670], involved the construction of a spur track to ail ice house. The track was constructed under a verbal agreement. In 1915 the railroad removed the spur, and the owner of the land sued the railroad company for trespass. In the course of the opinion the Supreme Court of Pennsylvania held:

“A railroad company, clothed with the right of eminent domain, does not forfeit title to the property it places upon the land of another, even where its act in so doing was a trespass (which this was not). Justice v. Nesquehoning Valley Railroad Co., 87 Pa. 28; Nittany Valley R. R. Co. v. E. S. & I. Co., 218 Pa. 224, 230, 67 A. 349; Titus v. Poland Coal Co., 275 Pa. 431, 119 A. 540.
“As defendant was in possession of its own property, the removal thereof did not constitute a trespass.”

In the case of St. Louis, K. & S. W. R. Co. v. Nyce, supra, the owner of real estate sued a railroad to recover damages for land converted by the railroad and to recover the value of a depot, 1,700 feet of side track, and a mile of main line track. From a recovery in favor of plaintiff, for both the value of the real estate and the tracks on the real estate, the railroad company appealed. In the course of the opinion the Supreme Court of Kansas used the following language [61 Kan. 394, 59 P. 1042, 48 L.R. A. 241] : “The road was alone adapted for the transportation of persons or property. All its parts were merely accessory for its business, and were put on the land for this purpose, and not as accessories to the land over which the road was to pass. That part of the road built on the premises of the party plaintiff in error in the suit, disconnected from other parts of the road, could not be operated and would be useless as a railroad, nor could it serve any useful purpose as an appurtenance to the land on which it was built.”

The rule has long been established in this State that material in railroad tracks is regarded as being personal property, and in erecting spur tracks and other tracks'on land not owned by it, upon discontinuance of the tracks the railroad company could remove the material of which they were made. It has also been held that material in a railroad track remains personal property, and does not become a part of the underlying real estate. Preston v. Sabine & East Texas Ry. Co., 70 Tex. 375, 7 S.W. 825.

The trial court concluded “as a matter of law that notwithstanding the repairs and replacements and the extensions of and to said spur track made by the said Chas. M.. Schoenfeld from 1919 to 1925 that the said Chas. M. Schoenfeld did not acquire title thereto by virtue of having made said repairs, replacements and re-habilitations.”

The trial court correctly held that the spur track involved in this controversy was not at any time, and never became, a permanent fixture and a part of the realty, and that the said Schoenfeld did not acquire title to said spur upon the purchase of said real estate in 1919, and that Mrs. Schoenfeld did not acquire title to said spur upon her purchase of said land from the said Charles M. Schoenfeld in 1931.

It clearly appears that the facts of this case have been fully developed. Therefore the conclusions to be based on the above findings of fact become questions of law, and under the authorities above cited the Court of Civil Appeals erred in holding that the material placed in the spur track became part of the realty and belonged to the Schoenfelds.

The trial court correctly held, as a matter of law, that the Schoenfelds did not acquire the spur track by virtue of their having acquired the realty. The trial court erred in holding, under the facts involved in this case, that the Schoen-felds acquired such property by limitation. The Court of Civil Appeals erred in holding that the material in such track constituted a portion of* the underlying real estate, so that title to said material would pass under a deed to said real estate, and furthermore erred in affirming the judgment, of the trial court.

The judgments of the trial court and Court of Civil Appeals are reversed, and judgment is here rendered that the Schoen-felds recover nothing against the Texas & New Orleans Railroad Company.


author: CRITZ, Justice.

text:
    ANDRUS et al. v. REMMERT et al.
    No. 7509.
    Supreme Court of Texas.
    Jan. 15, 1941.

      Robert L. Sonfield, Miles Strickland, and W. P. Neblett, all of Plouston, for plaintiffs in error.
    Searcy & Hodde, of Brenham, for defendant in error Remmert.
    C. D. Duncan, of Bellville, and K. W. Gilmore, of Houston, for defendant in error Humble Co.
   CRITZ, Justice.

As tried in the District Court of Austin County, Texas, Mrs. Erma Andrus et al., as heirs at law of A. B. Stone, Sr., deceased, sued Wm. Remmert et al. in trespass to try title and to partition a small tract of land in Austin County, Texas. Trial in the district court, without the aid of a jury, resulted in a judgment for Rem-mert et al. This judgment was affirmed by the Court of Civil Appeals. 120 S.W.2d 272. Mrs. Andrus et al. bring error. As we understand this record, if this land is subject to partition, Mrs. Andrus et al., as heirs at law of A. B. Stone, Sr., deceased, are entitled to recover one-third thereof, and are therefore entitled to partition of same in the proportion of one-third to the plaintiffs and two-thirds to the defendants.

It appears that the land involved in this suit was originally a part of a tract of about 200 acres which belonged to A. B. Stone, Sr., during his lifetime. The 200 acres were generally known as the A. B. Stone, Sr., homestead tract. A. B. Stone, Sr., died in 1881, leaving a written will. This will was duly probated in the county court- of Austin County, Texas. By the terms of such will the above-mentioned Stone 200-acre homestead tract, except a part thereof reserved as a cemetery, was bequeathed to W. B. and George F. P. Stone, both sons of A. B. Stone, Sr. The cemetery tract was reserved as such and expressly not bequeathed to any one. We quote the following provision of the will, which is the only part thereof germane to this opinion: “Fourthly. I will and bequeath -sons, W. B. Stone and Geo. F. P. Stone my homestead to be equally divided between them, after appropriating so much as will pay the board and tuition in the education qf my son George F. P. Stone. Said division to be by sale or partition as shall be most to the interest of said legatees except one acre embracing the present burying ground. I reason and hold in my own name and right free from sale or transfer for all time to come.”

It will be noted that the only description contained in the Stone will of the land reserved as a cemetery is “one acre embracing the present burying ground.”

It appears that George F. P. Stone, one of the two sons to whom the Stone homestead tract was bequeathed, died before the testator. We gather that he died without leaving children or descendants of any kind. It follows that the devise to him lapsed, and A. B. Stone, Sr., died intestate as to one-half of the Stone 200-acre homestead tract. Article 8295, R.C.S.1925.

. During the year 1882, shortly after the death of A. B. Stone, Sr., a partition of the Stone homestead tract among the heirs of the deceased, including W. B. Stone, was had in the probate court of Austin County, Texas. So far as we know, these proceedings were regular in all respects. In partitioning the 200-acre tract the cemetery provision of the Stone will was substantially respected, and a tract of land 419 feet long by 160 feet wide was left out of the partition as a cemetery. All the heirs and parties to the partition proceedings accepted thereunder and went into possession of the several tracts of land awarded to them respectively. Also, it appears that a part of the tract of land left out of the partition as a cemetery had .been used as such for many years before the death of A. B. Stone, Sr. The graves on this tract, or many of them, can now be identified, and some of them still have markers or stones located at the graves in the usual way. It is true that even this part of the cemetery is in a very dilapidated and unkept condition.

No particular instrument or ceremony is necessary or required to dedicate or set land apart as a cemetery or place of burial for the dead. Damon v. State, Tex.Com.App., 52 S.W.2d 368; 10 Am.Jur., p. 498, sec. 6. Of course, in dedicating land as a cemetery it is permissible to make reasonable provision for future burials. Measured by the above rule, we think that the actual use of a part of this land as a cemetery, the provision pertaining thereto contained in the A. B. Stone, Sr., will, the partition proceedings, and the acts of the parties to such proceedings in accepting thereunder constituted and dedicated the entire tract of 419 by 160 feet, left out of the partition, as a cemetery, in so far as the parties to- such partition proceedings are concerned.

For the purposes of this opinion, we make the following plat:

The land enclosed within the letters “A, B, C, D” represents the cemetery as set aside in the partition proceedings above mentioned. As above indicated, we hold that under this record the parties to the partition proceedings will not now be heard to say that the tract of land 419 by 160 feet left out of the partition of the Stone homestead tract was not then a cemetery to be recognized and respected by them as such.

We think that it is recognized by the authorities generally that land dedicated to burial" purposes, or, stated in another way, dedicated to use as a cemetery, can be abandoned as such. As long as land once dedicated to use as a cemetery “is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard, it is not abandoned.” Where bodies which have been buried in a cemetery remain therein and the ground awakens sacred memories in living persons, the mere fact that for some years no new burials have been had, and that the graves have been neglected, does not operate as. an abandonment and authorize the desecration of the graves. 10 Am.Jur., p. 512.

As already said, we think that in dedicating land to cemetery purposes reasonable provision may be made for future-burials. In spite of this we think that where land has been dedicated^ as a cemetery, and in making such dedication provision has been made for future burials, and it appears that there is no reasonable expectation that such surplus land will ever be used for burial purposes at any reasonable time in the future, such surplus: land should be treated as abandoned as a cemetery. Damon v. State, supra; Id., Tex.Civ.App., 37 S.W.2d 405. Certainly no rule of law would demand that such surplus land should lie idle, and subject to no use for all time to come.

When, we come to examine this record, we are convinced that it would be legally unreasonable to say that the land outside the land marked “E, F, G, H,” on the above plat is still a cemetery. So far as this record shows, no grave has ever occupied any part of such outside area. In fact, no new grave has been located even on the occupied area.for many years. The area on which graves are located is unkept and in a very dilapidated and desolate condition, and such condition has existed many years. More than half a century has elapsed since the above-mentioned partition was had. The land outside the area marked “E, F, G, H” was then unoccupied by any graves. It follows that it must then have been set aside for future burials. From that day to this trial, no grave has been located thereon. Under this record, there can be no reason to say that it ought to be left as a part of the occupied area. All the land, including the area occupied by graves, is in a pasture, where stock roam at will, and such condition has existed for many years. No member of the Stone family can say that they expect in the future to bury their dead on the unoccupied area. This is because the heirs who here demand partition expressly assert that they never expect to use any part of the original tract for future buri-ais; and the remainder of the Stone heirs cannot contend that they intend to use such cemetery in the future, as they have conveyed their interest, even in the occupied area, to Humble Oil & Refining Company, one of the defendants in this case. We assume that such Company can hardly contend that it has any interest in preserving this unoccupied area for future burials. Finally, it cannot be said that this record shows that the general public has any right in this land as a cemetery, because even if it did at one time have such right, a question we do not decide, the failure to use for more than fifty years, under the circumstances above indicated, would show conclusively that the unoccupied area has been abandoned.

Of course we recognize it to be the rule that every foot of land dedicated as a cemetery does not have to be actually occupied by graves. Surplus land may be included in the cemetery for walks, drives, parking, ornamental purposes, future burials, etc. 14 C.J.S., Cemeteries, page 63, § 1.In spite of this rule, we think this record conclusively shows that none of the land here involved will ever be used as a cemetery in any sense of the word. As we understand this record, plaintiffs do not seek to partition the área occupied by graves, marked “E, F, G, H” on the map, supra.

We do not decide whether or not the land here involved was ever dedicated as a public cemetery. We have assumed, only for the purposes of this opinion, that it was so dedicated.

It is urged that certain defendants have no right to defend this case on the cemetery issue. We do not decide that question, as it is not necessary. We simply hold that this record shows, as a matter of law, that the area shown on the above plat, other than .that included within the letters “E, F, G, H,” has long been abandoned as a cemetery, either public or private.

The judgments of the Court of Civil Appeals and the district court are both reversed, and the cause is remanded to the district court to proceed to partition the land indicated on the above plat outside that enclosed within the letters “E, F, G, H.” We leave the question as to how such partition shall be effected, whether in kind or by sale, to be determined by the district court.


text:
    STATE et al. v. HALE et ux.
    No. 7176.
    Supreme Court of Texas.
    Jan. 22, 1941.

      Wm. McCraw, Former Atty. Gen., of Dallas, James V. Allred, Former Atty. Gen., of Houston, Curtis E. Hill, Former Asst. Atty. Gen., of Dallas, T. S. Christopher, of Ft. Worth, M. W. Burch, of Decatur, and John L. Green, of Austin, for plaintiffs in error.
    Polk Shelton, of Austin, and Bradley & Bradley, of Groesbeck, for defendants in error.
    Fulbright, Crooker & Freeman, C. A. Leddy, Carl G. Stearns, and W. IT. Marshall, all of Houston, amici curiae.
   SHARP, Justice.

W. S. Hale and wife brought this suit in the District Court of Travis County against the State and the State Highway Commission, under the authority of Senate Bill No. 197, passed by the 42d Legislature at its regular session of 1931, chap. 72, p. 160, Special Laws of such session. The plaintiffs alleged damages by reason of overflow of their lands, which was •caused by the State, through its State Highway Department, having built a temporary dump or roadbed on said Highway No. 43 across Keechi Creek bottom, situated near the town of Oakwood. The case was submitted to a jury on special issues, and by virtue of the answers made by the jury, the trial court entered judgment for Hale and wife for $52,544.52, of which sum $37,800 was the amount of damages found by the jury, and $14,744.52 was interest thereon at six per cent, per annum frdm September 1, 1927, to the date of the judgment, June 11, 1934. The judgment hears legal interest from its date. The State appealed the case to the Court of Civil Appeals at Austin, and the judgment of the trial court was reformed so as to award Hale and wife judgment for $37,-800, together with interest thereon from September 1, 1927, at.the rate of six per cent per annum, and all costs, — and, as reformed, the judgment of the trial court was affirmed. 96 S.W.2d 135.

We shall designate the parties as plaintiffs and defendants, as they were in the trial court.

The farm owned by Hale and wife consisted of several tracts of land, aggregating 1,400 acres, and was operated as a unit. It was located on the east bank of Keechi Creek, and north of and abutting upon an •old road which crossed the creek bottom (about 3,400 feet wide between the foothills) at this point. In July, 1927, the Highway Department began the construction of Highway No. 43 by building a temporary road, which was completed in August, 1927, consisting of a dump across the bottom, something like 2.5 to 5 or 6 feet above the natural surface of the adjacent land. In this dump two openings for drainage were left, — one 147 feet wide at the slough crossing, and the other 174 feet wide at the creek crossing. The old road was not substantially higher than the surface of the adjacent land. The permanent highway was constructed sometime later, with much wider openings at 440 and 680 feet, respectively. The damage sued for and recovered was for permanent injury to the land by reason of obstructing the natural flow of the flood waters which theretofore had passed unimpeded over the ■old roadway, thereby depositing large quantities of sand and other substances on the land, and impairing its productivity for use in growing crops. It was the theory of the defendants that the permission to sue was limited to injuries caused by the use of the temporary dump. The trial court adopted this theory in submitting the special issues to the jury.

In 1930 plaintiffs conveyed to the county, for highway purposes a strip of land off the farm, containing approximately 13 acres, for $500 in cash. This strip was purchased in order to give necessary roadway width to Highway No. 43. The terms of the deed and the consideration expressed therein did not purport to settle or pay for damages to other land growing out of the construction of such highway.

The special issues and the jury’s answers thereto read as follows:

“1. Do you find from a preponderance of the evidence that the land of the plaintiff W. S. Hale and his wife Mary D. Hale was injured by reason of the construction by the State of Texas of the temporary or old highway dump on highway No. 43 across the bottom of Keechi Creek adjacent to the south end of the Hale farm?” Answer: “Yes.”
“2. Was the temporary or old highway dump on State Highway 43 constructed in such a manner as to cause overflow of the property or farm of plaintiffs in this case?” Answer: “Yes.”
“3. How many acres of the land of W. S. Hale and his wife Mary D. Hale, plaintiffs in this case, were caused to be overflowed by the construction of the aforesaid dump on which sand or other substances injurious to the growing of crops were deposited?” Answer: “500 acres.”
“4. (a) What was the reasonable cash market value, or if no reasonable cash market value, the intrinsic value, of the Hale farm per acre immediately before the construction of the temporary or old highway dump on highway 43 adjacent to the south end of the Hale farm in July, 1927?” Answer: “$75.00 per acre on entire farm.”
“4. (b) What was the reasonable cash market value, or if no reasonable cash market value, the intrinsic value, of said property immediately after the completion of the aforesaid dump in August, 1927?” Answer: “$48.00-per acre on entire farm.”

Defendants made no objections or exceptions to any portion of the charges or special issues, and no special charges or issues were requested by them. If the case presented other grounds of defense in favor of the State, under the state of this record they were waived. Therefore, we are confined to a consideration of the questions presented by this record.

Defendants in their brief herein state: “The petition * * * alleges two separate causes of action, the gravamen of the first being an action sounding in tort or negligence, and the second being an asserted cause of action upon the ground of the taking or damaging of property applied to public use without compensation.”

Since the Court of Civil Appeals has exhaustively stated the facts and the contentions made by the State in its brief, and copied them verbatim, we shall refer to the opinion of the Court of Civil Appeals for such assignments, without copying them herein. We shall refer herein only to those assignments discussed in this opinion.

The defendants’ first contention is that a general demurrer should have been sustained to plaintiffs’ petition, because the law authorizing this suit confined the action to one of negligence.

The caption of the act authorizing this lawsuit reads as follows: “An Act giving to W. S. Hale and wife, Mary D. Hale, consent of the Legislature to sue the State of Texas and State Highway Commission for damages resulting from the construction of State Highway No. 43 through Leon County, Texas; and declaring an emergency.”

The pertinent provisions of the act are sections 1 and 2, which read:

“Section I. That the consent of the Legislature of the State of Texas is hereby given to W. S. Hale and wife, Mary D. Hale, his executor, administrator and heirs to file and prosecute suit against the State of Texas and the State Highway Commission by reason of the alleged negligence in construction of State Highway No. 43 in and through Leon County, Texas, which' construction was begun in July, 1927, and especially by reason of the constructing of said Highway in such manner as to overflow and otherwise damage the lands of said Hale. Said suit shall be brought in Travis County, Texas.
“Sec. 2. The State and said Commission may appeal from said judgment, as provided by Law, without executing any bond, and, upon the final judgment being recovered against said defendants, the same shall be paid out of the State Highway Funds.”

The act authorized Hale and wife to sue the State and the Highway Commission, for “damages resulting from the construction of State Highway No. 43 through Leon County, * * * and especially by reason of the constructing of said Highway in such manner as to overflow and otherwise damage the lands of said Hale.”

When this act is considered as a whole, we think the Legislature intended to authorize plaintiffs to maintain any existing legal action had for damages sustained to their land by reason of the construction of Highway No. 43 through Leon County; and in order to maintain; such suit it was essential that the State should give such consent. The object of construing any statute is to ascertain the purpose for which it was enacted. When the caption and the material parts of the act are read and considered together, they are broad enough to permit plaintiffs to-file suit for any legally existing claim they have against the State growing out of the-construction of Highway No. 43. We do-not believe that the Legislature intended, to do a useless thing, by authorizing plaintiffs to file a suit based on a ground that is prohibited by law. Nor do we believe-that this act should be given such a narrow and technical construction as would prohibit the filing of a suit for an existing-legal claim arising from the construction of this highway. This contention is overruled.

Defendants also contend that, “The-Court of Civil Appeals and the Trial Court-should have sustained the general demurrer of plaintiffs in error because the construction of a highway was a governmental' function, and there was no liability for consequential damages, absent allegations, that thé highway department was not acting under legal authority, or that its action was arbitrary or an abuse of its discretion.”

Plaintiffs could maintain suit for their claim upon the ground that the construction of Highway No. 43 constituted a taking or damaging of their property for public use. The rule is now generally accepted that the State, in the absence of a constitutional or statutory provision therefor, is not liable for the torts of its officers- or agents. State v. Brannan et ux., Tex. Civ.App., 111 S.W.2d 347, writ refused; Brooks v. State, Tex.Civ.App., 68 S.W.2d 534, writ refused; Adkinson v. City of Port Arthur, Tex.Civ.App., 293 S.W. 191, writ refused; Barnes v. City of Waco, Tex.Civ.App., 262 S.W. 1081, writ refused; 25 R.C.L., 407; 59 C.J., 194; Note, 13 A.L.R. 1276.

The State, in the exercise of its sovereign power, has the unquestioned right to take, damage, or destroy private property for public use. Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 417, 138 S.W. 575, Ann.Cas.1914B, 322; City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 476; State of Georgia v. Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796; United States v. Jones, 109 U.S. 513, 3 S.Ct. 346, 27 L.Ed. 1015; 16 Tex.Jur. p. 560, § 2, and cases cited in footnotes.

However, the power of the State .to take, damage, or destroy private property for public use is subject to the right of the owner thereof to adequate compensation for the taking, damaging, or destroying of such property. Article 1, Bill of Rights, § 17, of the Texas Constitution, Vernon’s Ann.St., provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money.”

The law is now settled in this State that the State, in the exercise of its power to take or' appropriate private property for public use, is in the same position, and is governed by the same rule, as railroads, counties and other subdivisions of the State, and corporations, to which it has delegated power of eminent domain. 16 Tex.Jur. p. 567, § 7, and cases •cited in footnotes.

The language used in Section 17 of Article 1 of the Constitution, supra, which says that no person’s property shall be taken or damaged for public use without adequate compensation being made, has no exceptions or limitations attached thereto. It is a clear, definite statement of the rule which prevails ■ in this State, which controls all the departments of the State .government; and the liability for adequate compensation for private property taken or damaged for public use is not based upon the ground that the act of taking or damaging such property ivas done negligently or intentionally. The true test is, did the State intentionally perform certain acts in the exercise of its lawful authority to construct such highway for public use which resulted in the taking or damaging of plaintiffs’ property, and which acts were the proximate cause of the taking or .damaging of such property.

Within certain constitutional limitations, the Legislature has exclusive control over public roads and highways in this State. The right to establish and build .highways rests primarily with the Legislature, and such power may be delegated to some other agency as it may determine. Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S.W. 553; Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419, 422; Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; Section 52 of Article 3 of the Constitution of Texas.

That public roads belong to the State, and that the- State has full control and authority over same, is now well settled. Travis County v. Trogden, 88 Tex. 302, 31 S.W. 358; Robbins v. Limestone County, supra.

The State has created a Highway Commission, and has placed under its direct and exclusive control the management of its highway system. Vernon’s Annotated Civil Statutes, Articles 6673, 6674q — 4, 6674q- — -5. The State has vested in the Highway Commission full authority, and charged it with the duty to designate, lay out, and construct public highways. It has the right, as the agent of the State, to take, damage, or destroy private property for public use. ■ This right has been guaranteed by our Constitution. Public roads are a great public convenience, and, if necessary to carry out plans for the completion of a public road, private property may be totally or partially taken or damaged to accomplish that purpose. This carries with it the power, if need be, that a servitude may be created on land not actually taken or occupied by the public highway, for the purpose of carrying off the water, the natural flow of which is changed or diverted by the construction of such highway. This provision of the Constitution is broad enough to empower the State to do any lawful thing necessary to build a public highway.

The liability of the State under Section 17 of Article 1, supra, for taking, damaging, or destroying private property for public use, where the authority is properly exercised, should not be confused with the claim for damages caused by the negligent acts or wrongs committed by its agents or officers. In the, first class of cases the taking or damaging of such property is done for the State in the exercise of lawful authority. The right to exercise this authority, and the command to adequately compensate the owner for such property, are expressly provided in the-section of the Constitution above quoted. In other words, where the State has exercised its lawful authority to take or damage private property for the construction of a public highway, it has the power to carry out its plans relating to such highway and compensate the owner of such property for the damages which proximately resulted from the construction of such highway. Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430.

Article 1, Section 14, of the Texas Constitutions of 1845, 1861, 1866, and 1869 correspond to Article 1, Section 17, of the present Constitution, adopted in 1876, copied above, and provided that no person’s property should be “taken” for public use without adequate compensation being made, and did not contain the additional proviso of the present Constitution, that no person’s property shall be “damaged or destroyed” for public use, without adequate compensation being made.

The courts of this State, in construing-the section of the Constitutions prior to the present one, which was adopted in 1876, held that there must be a direct, physical invasion of the property before the owner thereof could be compensated for a “taking” of such property. Such constructions of the early provisions of our Constitution resulted in much injustice to the owners of property, and in 1876 the Constitution was changed to read as above quoted.

A construction of the amended provision of Section 17 of Article 1 of the Constitution reached this court in the case of Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298, 22 Am.St.Rep. 42. After discussing the provision of the Constitution involved here, and the change made by the amendment thereof, the court said: “The use of the disjunctive conjunction in the provision of the constitution under consideration indicates clearly that it was not necessary that there should be a taking to entitle the owner of property to compensation for any special damage that might result to it from the construction of a public work. * * * We think that the intention of the words ‘damaged or destroyed’ in the provision of the constitution under consideration was at all events intended to obviate any question of exemption from liability to the owner for property injuriously affected by a public work, and to,provide a remedy for any damage which in such cases the legislature might authorize to be inflicted.” For a further discussion of this question we refer to the following cases: Cooper v. City of Dallas, 83 Tex. 239, 18 S.W. 565, 29 Am.St.Rep. 645; Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139; Southern Surety Co. v. McGuire, Tex.Civ.App., 275 S.W. 845, writ refused; Ft. Worth Improvement District No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994; Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Improvement District No. 1, 123 Tex. 432, 73 S.W.2d 55; City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577.

Among the States having constitutional provisions similar to the one above quoted are Arkansas, California, Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Dakota, West Virginia, and Wyoming. The courts of those States having such provision in their Constitutions hold that private property shall not be taken or damaged for public use without compensation. We cite some of the cases as follows: Rigney v. City of Chicago, 102 Ill. 64; City of Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638; Chicago & W. I. R. Co. v. Ayres, 106 Ill. 511, 518; Mayor of City of Macon v. Daley, 2 Ga.App. 355, 58 S.E. 540; Dickerson v. Okolona, 98 Ark. 206, 135 S.W. 863, 36 L.R.A.,N.S., 1194; and see also Note, 20 A.L.R. 516, in which many of the cases on this subject are annotated; Gledhill v. State of Nebraska, 123 Neb. 726, 243 N.W. 909; Cline v. Norfolk & W. Ry. Co., 61 W.Va. 436, 71 S.E. 705; Felton Farm Co. v. Macon County, 49 Ga.App. 239, 175 S.E. 29; Young v. Commissioners of Highways, 134 Ill. 569, 25 N.E. 689; Roe v. Howard County, 75 Neb. 448, 106 N.W. 587, 5 L.R.A.,N.S., 831; Guest v. Commissioners, 90 Md. 689, 45 A. 882; Mason City & Ft. D. R. Co. v. Wolf, 8 Cir., 148 F. 961; Idaho & W. N. R. R. v. Nagle, 9 Cir., 184. F. 598; Mason City & Ft. D. R. Co. v. Kennedy, 8 Cir., 192 F. 538; Roe v. Cook County, 358 Ill. 568, 193 N.E. 472; Chicago, R. I. & P. Ry. Co. v. Prigmore, 180 Okl. 124, 68 P.2d 90; Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680; Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A.,N.S., 884; Heflin v. City of Lincoln, 131 Neb. 484, 268 N.W. 364.

It is also contended that the State is not liable for interest upon claims or judgments against it, in the absence of an agreement on the part of the State to pay interest. Generally this is the accepted rule, but there are certain exceptions to such rule. The general rule is that private property cannot be taken or damaged for public use without adequate compensation being paid therefor; and when such property is taken or damaged, such compensation shall first be made or secured by a deposit of money. The Constitution makes an exception of this rule in favor of the State. Under this express power the State can take or damage private property for public use without payment in advance therefor, and leave the owner thereof without payment until the Legislature sees fit to make an appropriation for same.

In this instance plaintiffs’ land was damaged in 1927, and so far no payment has been made for such damages; nor has the State offered to pay same. The Constitution expressly declares that adequate compensation shall be made to the owner for such damages, but leaves him to await the pleasure of the State to make such payment. Plaintiffs were compelled to resort to the courts for a determination of their rights, and now have a judgment, after the lapse of many years, for the amount of their claim.

In a great majority of the jurisdictions interest is allowed as part of the damages or compensation to the owner whose property has been damaged or taken under the power of eminent domain provided for under the provisions of the Constitution. For an exhaustive annotation of the cases bearing on this subject we refer to 96 A.L.R. p. 18. For a discussion of the cases relating to interest on amount of damage in eminent domain cases, see 96 A.L.R. p. 150.

In this State it has been held that, in an action for damages for injury to real property, the owner is entitled to legal interest on the damages from the time the injury was inflicted. For a discussion of tjhis question see Texarkana & Ft. S. Ry. Co. v. Brinkman, Tex.Com. App., 292 S.W. 860; Missouri, K. & T. Ry. Co. of Texas v. O’Connor et al., Tex. Civ.App., 51 S.W. 511; Panhandle & G. Ry. Co. v. Kirby, Tex.Civ.App., 108 S.W. 498; Baldwin v. City of San Antonio, 59 Tex.Civ.App. 262, 125 S.W. 596; Houston Ind. School Dist. v. Reader et al., Tex.Civ.App., 38 S.W.2d 610; Routh et al. v. Texas Traction Co., Tex.Civ.App., 148 S.W. 1152; Cunningham et al. v. San Saba County, 11 Tex.Civ.App. 557, 32 S.W. 928; Morris v. Coleman County, Tex.Civ.App., 35 S.W. 29. The foregoing rule also prevails in the1 federal courts. Jacobs v. United States of America, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A.L.R. 1.

In this instance the State damaged the land and did not offer to pay for such damages. The plaintiffs ask for interest in their suit for damages, and the trial court allowed interest on such claim. The Court of Civil Appeals reformed the judgment of the trial court as to part of the interest.

The contention of the State that plaintiffs are not entitled to collect interest on their claim for damages is overruled.

The State contends that the judgment, based upon the answers of the jury to the special issues submitted, should have been for the sum of $13,500, or $27 per acre, for the land actually overflowed.

By issue No. 1 the jury was, in effect, asked if the land of the Hales was injured by reason of the construction of the temporary or old highway dump across the bottom of Keechi Creek, adjacent to the south end of the Hale farm. By issue No. 2, the jury was, in effect, asked if the dump mentioned in issue No. 1 was constructed in such a manner as to cause overflow, etc., of the property or farm of the Hales. By issue No. 3 the jury was, in effect, asked how many acres of the Hale land were caused to overflow, etc., by the dump mentioned in issues Nos. 1 and 2. By issue.No. 4a the jury was, in effect, asked to find the value, actual or intrinsic, of 'the Hale farm immediately before the construction of the dump mentioned in the preceding issues. By issue No. 4b the jury was, in effect, asked to find the value, actual, or intrinsic, of “said property” immediately after the construction of the dump mentioned in the preceding issues.

The jury answered issues Nos. 1 and 2, “Yes.” The answer to issue No. 3 was, “500 acres.” The answer to issue No. 4a was, “$75.00 per acre on entire farm.” The answer to issue No. 4b was, “$48.00 per acre of entire farm.”

Article 2211 of the Revised Civil Statutes of 1925 Vernon’s Ann.Civ.St. art. 2211, provides that, “The judgments of the Court shall conform to the pleadings, the nature of the casé proved and the verdict, * * * ” The rule is well established that when the findings on special issues are ambiguous, in order to arrive at their proper interpretation the court may examine not only the issues submitted, but also the pleadings and the evidence; and after an examination of such pleadings and evidence the intention of the verdict can he ascertained. Such verdict so construed constitutes the proper basis for a judgment. If conflicting findings can be harmonized or reconciled, a judgment may be rendered in conformity therewith. 25 Tex.Jur. p. 491, § 107.

Let us refer to the pleadings. It was admitted that the plaintiffs were the owners in fee simple of the lands described in paragraph 2a of their petition. This part of the petition is copied in the statement of facts for the purpose of showing the land involved. When the number of acres described therein are considered, they create an acreage in excess of 1,400 acres; and when the allegations are considered, it is difficult to determine how many acres of land were in the Hale farm. The petition further alleges that “all of said tracts described adjoin and together constitute and are one farm or plantation of about 1400 acres, about 950 acres of which is, and for more than ten years last past has been used * * * as one farm.” Thus it will be seen that the allegations are not definite about the 1,400 acres; and if 950 acres is used as a basis for the judgment, it is far less than the judgment rendered by the trial court.

It is further alleged that “at least 800 acres of said land lay on the east side of Keechie Creek, and at least 800 ■ acres thereof was good * * * land,, of which 800 acres and some 200 additional acres of the adjacent land was cleared and in cultivation.” It is also further alleged that the water caused and will cause a deposit of sand to settle over “about 800 acres of said' land.” . In paragraph 4b plaintiffs further say that “said entire body of land described in this paragraph has been practically destroyed and rendered of practically no value or benefit to plaintiffs to their damage in the sum of $100.00 per acre for said tract.” No tract of land is described in said paragraph 4b, so we cannot tell how many acres are claimed to have been damaged $100 per acre.

Many other allegations are contained in said petition, but nowhere is it alleged that the entire tract of 1,400 acres has been damaged by reason of the construction of the dump. In paragraph ■ 4a, after referring to the building of the dump, plaintiffs allege that defendants committed acts “ * * * so as to rénder all of said land last above referred to of véry little and practically no value and permanently injured same and appropriated same to public use and purposes as aforesaid.” It will be noted that the above tract referred to in the petition is that contained in paragraph 3k as “about 800 acres of said land.”

When we look to the pleadings and the evidence we encounter much difficulty in arriving at the number of acres of land alleged to have been damaged by the construction of the dump in question. Taking the pleadings and the evidence, and giving them the most favorable construction, we are unable to say that they form the basis for’ the judgment rendered by the court giving damages to 1,400 acres of land. The trial court in entering judgment for the amount above. described as'sumed it as conclusively established that the Hale farm consisted of 1,400 acres, and thus gave judgment in favor of plaintiffs for $27 per acre on the entire 1,400 acres.

Keeping in mind the evidence and the pleadings, it appears that issue No. 3 was submitted by the court in order to ascertain the number of acres caused to be overflowed by the dump, and on which sand or other substance injurious to growing crops' was deposited. Certainly the court must have had some purpose in submitting this issue to the jury for a finding thereon. When issue No. 3 is given this construction, then the effect of issues Nos. 4 and 4a is to ask the jury to find answer as to the number of acres found in response to issue No. 3.

When we consider as a whole the special issues submitted to the jury and the answers thereto, it appears to us that the judgment entered by the trial court should have been one allowing damages to the 500 acres submitted in issue No. 3, and that the judgment in favor of the Hales for the amount above described does not find adequate support in the pleadings and the verdict. There is adequate support in the pleadings and the verdict to support a judgment in favor of the Hales for $13,500. If the court had entered a judgment in favor of the Hales for .the sum of $13,500, under the state of this record the State would have no basis for objection. As we view it, this is the only judgment that could be sustained by this record.

It is the duty of a court, in considering issues and answers given, to enter a judgment that will harmonize with such issues and the answers of the jury. It therefore follows that the judgments of the trial court and of the Court of Civil Appeals should be reformed, so as to allow a recovery for the Hales in the sum of $13,500, being damages to 500 acres of land at $27 per acre, with interest thereon at the rate of six per cent, per annum from September 1, 1927.

The act authorizing the plaintiffs to file this suit further provides that “upon the final judgment being recovered against said defendants, the same shall be paid out of the State Highway Funds.” For the reasons given by this court in the case of National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687, that part of the act is held invalid.

The pleadings and the verdict support the foregoing judgment. The State contended that such judgment was the only one that the trial court should have entered, and therefore, the State is in no position to complain of same. In order that the ends of justice may be sub-served, this court, in the exercise of its power and discretion, frequently reverses and remands causes for new trial. It may be that plaintiffs could further develop their side of this case, and if they are dissatisfied with the judgment rendered herein they may file a motion to have this case remanded for another trial, and this court will grant such motion.

The judgments of the Court of Civil Appeals and of the trial court are hereby reversed in part and reformed as above indicated, and as so reversed in part and reformed they are affirmed.

All concur.