author: CRITZ, J. OURETON, C. J.

text:
    RIO GRANDE, E. P. & S. F. R. CO. v. DUPREE et al.
    No. 1595—5974.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.

      Terry, Cavin & Mills, of Galveston, and Turney, Burges, Culwell <& Pollard and A. H. Culwell, all of El Paso, for plaintiff in error.
    Robert D. Holliday, and.Henry T. Moore, -both of El Paso, for defendants in error.
   CRITZ, J.

This is a suit for damages. It originated in the district court of El Paso county, Tex' Mrs. Dora Dupree, for herself and as next friend for her two minor sons, Joseph and David Dupree, complained against Rio Grande, El Paso & Santa Pe Railroad Company on account of the death of Dr. W. A. Du-pree, her deceased husband, who was the fa: ther of John and Joseph Dupree. Dr. Du-pree’s death- resulted from a collision between a truck in which he was riding, and a locomotive of the railroad at a public crossing. The case was submitted to a jury in the district court on a general charge and resulted in a verdict for the plaintiffs for $50,000. The district court required a remittitur of $14,000 and judgment was finally entered against the railroad for $36,000 duly apportioned among the three plaintiffs. On appeal by the railroad this judgment was affirmed by the Court of Civil Appeals at El Paso. 35 S.W.(2d) 809. The railroad brings error.

We shall hereafter refer to the Duprees a¿ plaintiffs, and to the railroad company as the railroad.

The plaintiffs’ -petition alleges certain acts of negligence on the part of the railroad resulting directly and proximately in Dr. .Du-pree’s death. It is not necessary to detail such allegations here; it is sufficient to say that the verdict of the jury is amply sustained, as to these matters by probative evidence in the record. In fact, the railroad does not question this conclusion.

The railroad company contends that the judgments of the Court of Civil Appeals and district court should be reversed for two reasons:

(a) Because the evidence shows as a matter of law that Dr. Dupree was himself guilty of negligence which directly and proximately contributed to his death.

(b) Because of certain alleged improper argument indulged in by plaintiffs’ counsel while making his closing argument to the jury.

We shall consider the two contentions in the order in which they are stated.

In connection with the issue of contributory negligence, it is contended by the railroad that the locomotive which collided with the truck in which Dr. Dupree was riding at the time he was killed was pulling a train engaged in transporting interstate commerce, and therefore the rules and standards of negligence as laid down and announced by the United States Supreme Court must be applied in deciding the issues of negligence in the instant case.

It is settled that the Federal Employers’ Diability Act (45 USCA §§ 51-59), with its amendments, ánd other federal laws applicable to railroad carriers supersede, in so far as they cover the same field, all state laws where the railroads and their employees are ¡engaged in interstate commerce. Also in such cases the rules and standards of negligence as laid down and announced by the United States Supreme Court must be applied; and this even where such cases are adjudicated in state courts. On the other hand, it is equally as well settled that the Congress has not undertaken to enact any law governing the tort liability of railroads to third persons not in their employment, and where such cases are being adjudicated in state courts they are at liberty to apply their own rules and standards of negligence. Galveston, H. & S. A. Ry. Co. v. Wells (Tex. Sup.) 50 S.W.(2d) 247, and authorities there cited. The opinion in the Wells Case, supra, clearly states the reasons for the above holding, and exhaustively reviews the authorities on which it is based. No good purpose can be served by further discussion here.

It is undisputed that no relation of master and servant existed between Dr. Du-pree and the railroad. It follows that we must determine the question as to whether Dr. Dupree was guilty of negligence contributing to his death according to the rules and standards laid down and announced by our own Supreme Court. At this point we deem it proper to say that at the time this writ was granted the Wells opinion, supra, had not been delivered, and our Supreme Court had not then directly decided the question above discussed.

We shall now proceed to determine the issue as to whether the undisputed evidence in this record shows as a matter of law that Dr. Dupree w;as himself guilty of negligence which directly and proximately caused, or contributed to cause, his death. The Court of Civil Appeals has made a very extended and comprehensive statement of the testimony of the various witnesses who testified touching the facts and circumstances of this ¡deplorable accident, and, in the interest of brevity, we will not repeat such testimony here, but content ourselves with referring to and adopting that part of that opinion.

As we understand the testimony, it shows that Dr. Dupree and his son, John Du-pree, were riding in the truck at the time of the accident; that it was not shown which one of them was doing the driving; that Dr. Dupree was killed instantly at the time of the collision, and John Dupree lived only a few minutes thereafter; and that at the time of the accident the crossing in question was unusually dangerous in that it was uphill, very rough and narrow, and had deep ditches on either side, thus requiring the driver of a motor vehicle to give close attention thereto in order to pass over it in safety. It- was further shown that, at the time the accident occurred, the approaching train was, to some extent, obscured by salt cedar trees and other bushes, and a double line of telephone or telegraph poles. Also at the time a violent sand, storm was ragifag, making it difficult for a person to see more than a few feet ahead. It was shown that the train was running at a high rate of speed under the circumstances at the time; that the whistle was not blown at the whistling post or at any other point where it would have constituted a warning; and that the bell was not rung as required by law. Also it was shown that such train was supposed to pass this crossing between 3:30 and 4 o’clock while on this occasion it passed about 1:30. All of the above facts are supported by the evidence, and are presumed to be true in support of the verdict of the jury.

On the other hand, the testimony shows that, at the place where the collision occurred, the track is straight for quite a distance; that a paved highway runs parallel with the track, and adjacent to the railroad right of way; that Dr. Dupree’s home was a short distance from the highway and across the railroad; that he and his son, who was also killed, were both thoroughly familiar with the crossing; that the truck came first along the paved highway going in an opposite direction to that which the train in question was traveling; that, when the crossing was reached, the truck turned to the left and proceeded about 45 feet without stopping, to the track in the direction of the Dupree home; that the truck was traveling at the rate of about 10 miles per hour on the highway as it approached the crossing; that, when the truck reached the railroad track, the left front fender and wheel struck the locomotive at a point thereon back of the cylinder head, and about 10 feet from the pilot; that just before the impact the man who was sitting on the right in the truck grabbed the steering wheel; and that Dr. Dupree and his son were the only persons in the truck at the time.

From the above facts the railroad company contends that Dr. Dupree was, as a matter of law, guilty of negligence which directly and proximately contributed to his death. In connection with this contention the railroad further contends that the above facts show as a matter of law that Dr. Dupree approached the crossing in question without observing any of the natural laws of self-preservation and ran the truck in which he was riding heedlessly and recklessly into the side of the locomotive.

The effect of the jury’s verdict is to find the railroad guilty of negligence which resulted in Dr. Dupree’s death, and to acquit Dr. Dupree of contributory negligence. There is no contention made that the finding in the first instance is not supported by the evidence, and we think the finding in the second instance also so supported.

The railroad further contends that the uncontroverted evidence above detailed shows, as a matter of law, that Dr. Dupree approached and went upon the crossing in question and thereby, propelled his truck against the railroad’s locomotive without looking or listening for the approaching train, and that this was negligence per se. We think the facts do not conclusively establish even this contention. As above shown it was proven that the train was run at a high and dangerous rate of speed, and that no warnings of any kind were given as required by our statute. Article 6371, R. O. S. 1925. The jury was justified in concluding that the operation of the train at the speed it .was run at the place, and under the circumstances at the time, was negligence on the part of the railroad. The failure to ring the bell and sound the whistle was negligence as a matter of law. Under the facts the jury were justified in concluding that such acts of negligence produced or occasioned the collision, and in concluding further that it would not have occurred absent such acts. Furthermore, the jury, under such facts, were not bound to find that Dr. Dupree did not look or listen for the train. Finally it is not negligence, as a matter of law, for a person about to cross a railroad at a public crossing not to stop, look, and listen. Trochta v. Ry. Co. (Tex. Com. App.) 218 S. W. 1038; Galveston, H. & S. A. Ry. Co. v. Wells, supra.

The general rule of negligence in this state is not different, as applied to railroad crossings, from other cases of negligence. The right of the traveler to use the highway at its point of intersection with the railroad is not unrestricted. It is his duty to exercise ordinary care and prudence to discover and avoid approaching trains. Likewise the right of the railroad to use its own track where it crosses a public highway is not unrestricted. It is its duty to exercise ordinary care and prudence to avoid injuring a traveler on the highway. Of course it is the duty of the railroad to give the, statutory signals, and failure to do so is negligence per se. Article 6371, supra.

In applying the rule of ordinary care to negligence cases no set or absolute standard of action can be laid down. Usually the issue is one of fact to be determined from all of the facts and circumstances of the particular case. Of course, in a case where the evidence is uneontroverted the issue ceases to be a question of fact, and becomes one of law.

From the facts above recited we cannot say that the conclusion could not reasonably have been reached by the jury that the driver of the car, exercising ordinary care, had approached near the moving train, before perceiving same, coming at excessive speed, at an unusual time, and without warning, and, further, that immediately upon perceiving same the occupant of the car who was not driving, acting under the influence of overwhelming terror, which was the proximate result of the negligence of the railroad company, seized the steering wheel and prevented the driver from avoiding the accident as he might otherwise have succeeded in doing. International & G. N. Ry. Co. v. Neff, 87 Tex. 309, 28 S. W. 283. Under such circumstances, the inference would certainly be warranted that the occupants of the car were in the exercise of ordinary care, repelling the finding of contributory negligence on their part as a matter of law.

The railroad contends that, under the rule laid down by the Supreme Court in Sabine & E. T. Ry. Co. v. Dean, 76 Tex. 73, 13 S. W. 45, 46, and by the Commission in Gulf, C. & S. F. Ry. Co. v. Gaddis (Tex. Com. App.) 208 S. W. 895, 896, Dr. Dupree was guilty of negligence as a matter of law.

In the Dean Case, supra, the Supreme Court said; “This evidence is not contradicted. But one conclusion can be drawn from it; and that is that, when there was nothing to prevent his seeing his danger, he heedlessly stepped upon the track at the very moment of the collision.”

We think the rule announced in the Dean Case, supra, is still the law of this state, but the evidence in the ease at bar does not show, as a matter of law, that Dr. Dupree heedlessly drove upon the track when there was nothing to prevent his seeing his danger. The facts we have detailed demonstrates that the jury was justified in finding to the contrary.

In the Gaddis Case, section B of the commission held: “All men in possession of their faculties are charged with knowledge that a railroa!d track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such action and the use of such care as ordinary prudence would dictate in so doing. Where no care whatever has been exercised, our courts uniformly hold that contributory negligence exists as a matter of law, and recovery is denied.”

We think the holding above is also still the law of this state, but the facts of this case do not show, as a matter of law, that Dr. Dupree failed to exercise any care whatever in going on the track as he did, even if we admit that' he was driving the truck in person. It is established that the railroad company was guilty of negligence which proximately caused Dr. Dupree’s death. For aught wé know the doctor may have looked and listened for the train and hearing no signals drove on the track believing himself safe in doing so. Whether his act was negligence under the circumstances here was a question of fact for the jury.

To say that Dr. Dupree was guilty of negligence as a matter of law in driving, if he did the driving, on the crossing in question here, under the facts and circumstances of this case,' as presumed from the evidence and the verdict, would be to say to the traveling public that, regardless of any duty imposed by law upon the railroad company, all persons who cross railroads at public crossings do so at their own risk and peril, and are charged by law with the absolute duty of discovering and avoiding approaching trains. We think no court has gone so far as to announce such a rule. Certainly the courts of this state have not done so.

■ We now come to consider the assignment involving the alleged improper argument of the plaintiffs’ counsel. The bill of exception clearly states the issue. It is as follows:

‘‘While the I-Ion. Robert L. Holliday was making the closing argurqent to the jury in said cause, he stated in said argument to the jury practically as follows:
“ ‘Gentlemen of the Jury, the failure of this crew to blow the whistle and ring the bell has taken a life. Mrs. Dupree has lost her husband and her sons a father. It might have been you. It might have been me. Some of you gentlemen have sons. It might just as well have been your son. Remember that when you' render your verdict, to do unto others as you would have them do unto you.’
“To which argument when so made defendants’ counsel objected and excepted for the reason that said argument was an appeal to passion and prejudice, had- no evidence to 'sustain it; that the measure of recovery as therein asked by plaintiff’s counsel was not a proper measure of recovery, but rather an appeal to sympathy; that same was inflammatory and highly prejudicial to the defendants, whereupon the court stated to the jury:
“ ‘Gentlemen, I withdraw from your consideration that part of the argument of counsel in which he said “consider if you had boys and judge as you would be judged.” That is not the measure you judge by, but follow the charge as written.’
“Whereupon Mr. Holliday stated:
“ T add my request if the Court considers the argument improper, and apologize to the jury.’ ”
In regard to the above argument the Court of Civil Appeals holds (35 S.W.(2d) 809, 814): “The remarks of counsel perhaps exceeded the bounds of strict propriety, but we do not regard the same as reversible in view of the court’s instruction to the jury at the time and Mr. Holliday’s request.”

In passing on the issue as to whether this argument presents reversible error, we wish to here state that we adhere to the rule that, if the argument is improper, it must work a reversal unless we are able to say that the question of injury is free from doubt in the mind of the Supreme Court itself. Robbins v. Wynne (Tex. Com. App.) 44 S.W. (2d) 946.

The railroad contends that the above argument cqnstitutes reversible error for the following reasons: (a) Because it -is inflammatory, and constituted an appeal to prejudice, passion, and sympathy; (b) because there is no evidence in the record to support it; and (c) because the measure of recovery as therein asked was not a proper measure.

As to the first objection, (a) above, we think the argument is not of such, a character as would be calculated to cause the jury to forget their oaths and duties, and return a verdict regardless of the facts and the law. Under our system lawyers are allowed some latitude to engage in oratory. Of course they must stay within the record, and must not attempt to appeal to prejudice, passion, or sympathy. On the other hand, an attorney has a right to-use such legitimate argument as will impress the jury with the seriousness and importance of the case. We think that, when considered in the light of the entire record, the argument complained of is not subject to the objection that it constitutes an improper appeal to prejudice, passion, or sympathy.

As to the second objection, (b) above, we think the argument is supported by the testimony. It is fairly evident that the plaintiffs’ attorney was justified in telling the jury that the failure to ring the bell and blow the whistle had caused Mrs. Dupree to lose her husband, and her two sons to lose their father.

As to the third objection, (c) above, we think the argument, “do unto others as you would have them to do unto you,” merely amounted to a short hand appeal to the jury to apply what Christian people commonly denominate the “Golden Rule” as given hy the Saviour in the sermon on the Mount, “Therefore all things whatsoever ye would that men should do to you, do ye even so to them.” Matthew 7:12. The application of the Golden Rule by this jury would require them to look with equal solicitude to the rights of the defendant and the plaintiffs, and would not call for the application of an improper measure of damages.

We recommend that the judgment of the Court of Civil Appeals, which affirms the judgment of the district court, be affirmed.

OURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: SHARP, .1. CURETON. C. J.

license: Public Domain

text:
    CALVERY et al. v. CALVERY et al.
    No. 1584—5952.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    Ball & Seeligson and William P. Koch, all of San Antonio, for appellant Land Bank.
    J. E. & B. L. Bradley, of Groesbeck, for appellees.
   SHARP, .1.

This cause is before the Supreme Court upon certified questions from tlie Honorable Court of Civil Appeals for the Tenth Supreme Judicial District. The entire certificate reads as follows:

“Mabel Y. Calvery and husband, W. T. Cal-very, hereinafter called plaintiffs, instituted this suit in the District 'Court of Dimestone County against San Antonio Joint Stock Land Bank of San Antonio, hereinafter called bank, John Ross Calvery, Ola May Lloyd and husband, Mattie Gertrude Alford' and husband, and Cora Vernice Davis and husband, adults, and Sadie Elizabeth Calvery, Lois Geneva Calvery, W. T. Calvery, Jr., and Margie Lee Calvery, minors without a guardian, hereinafter called defendants. The eight named defendants are children, and the only children of Mabel Y. Calvery. The minor defendants were represented by a duly appointed guardian ad litem. The purpose of the suit was to construe the will of Mrs. N. E. Calvery, to establish title in fee simple thereunder in said Mabel V. Calvery to a certain tract of land consisting of -200 acres, and to remove as a cloud upon her title thereto the claims of the respective defendants that she took thereunder a life estate only and that they took thereunder the remainder in fee. The bank was made a party defendant as a judgment creditor with foreclosure of a lien on said land against plaintiffs.
“All parties claimed under the will of Mrs. N. E. Calvery. Said will purported to dispose of the entire estate of the testatrix, and so far as pertinent to the issues involved herein, was as follows:
“ ‘Item No. 2: I give and bequeath Mabel V. Calvery of Limestone County, Texas, a life estate in and to the following described real estate: (Here followed the field notes of the 200 acre tract in controversy in this case and also of a 25 acre tract not in controversy herein). The remainder in and to the tract of 200 acres and the other of 25 acres I hereby give and bequeath to the heirs of the body of said Mabel V. Calvery, to have and to hold, share and share alike to each after the death of the said Mabel Y. Calvery.
“ ‘But any effort to vary the purpose and intention of this item expressed shall revoke and annul any bequest to her.
“ ‘Item No. 3: I give and bequeath to the heirs of the body of Mrs. Medora A. Leathers the residue of all personalty and realty of which I may die seized and possessed, to share equally share and share alike, expressly stipulating that the said personalty and realty may he, within the discretion of the executors hereof, partitioned in kind, or _ in their discretion, sold and the proceeds thereof divided, as to them may seem best. It is my desire and directions to my below said executors that the profits of possessions mentioned in this item be expended for no other purpose than for the education of the legatees in this item mentioned. I further desire and direct that said executors make a partition hereunder to each legatee as soon as practicable after he shall have reached his majority, in the manner abovesaid.’
“Said will was executed on April 27, 1908. The testatrix died September -, 1908, and said will was thereafter duly probated. Mrs. N. E. Calvery was an aunt of plaintiff W. T. Calvery but was in no way related to the plaintiff Mabel V. Calvery. She had, however, adopted Mabel V. Calvery and reared her from a small child. Mrs. N. E. Cal-very had also as foster-mother reared Mrs. Medora A. Leathers, named in said Item 3 of her will. Plaintiffs had been married approximately ten years at the date of said will and had at that time four living children, the same being the first four named defendants herein. The minor defendants were all •born after the death of Mrs. N. E. Calvery. Mrs. Medora A. Leathers was a widow at the time said will was executed. She had at that time six children, all of whom were minors except one.
“Plaintiffs, in 1926, desired to secure a loan on the 2,00 acre tract of land in controversy herein. To effect such purpose they conveyed said land to George W. Stovall, who thereupon mortgaged the same to the bank. Immediately thereafter said Stovall and his wife reconveyed the land to Mabel V. Calvery.' Plaintiffs received the money so borrowed. Both said deeds purported to convey said land in fee simple without reservation or remain-' der. The bank, on January 13, 1931, recovered judgment for a balance of $6,000.00 due on its debt with a foreclosure of its mortgage lien on said tract of land against plaintiffs and said Stovalls. Said judgment of foreclosure recited that said land belonged to Mrs. Mabel V. Calvery in fee simple. The issuance of order of sale, however, was stayed until December 1, 1931. Defendants were not parties to said suit.
“Said tract of land is of the reasonable value of $12,000.00, and if Mabel Y. Calvery is adjudged to be the owner thereof ,in fee simple, she can borrow a sufficient sum thereon to pay said judgment and to prevent the sale and possible sacrifice of said land. .
“The case was submitted to the court without.the intervention of a jury. The pleadings of the respective parties were sufficient to support the issues presented in this appeal. The case was submitted on an agreed statement of facts, of which the above recitals are a substantial summary. The court held that the will of Mrs. N. E. Calvery vested in Mrs. Mabel V. Calvery a life estate only in and to said tract of land, with remainder in fee to the named defendants, who are heirs of her body, and that the action of Mabel V. Calvery in conveying said land in fee to said Stovall, in permitting him to encumber the same with a lien to secure a loan, in receiving the proceeds of sucli loan and having him reconvey said land to her in fee, did not impair nor destroy her estate in said land. Plaintiffs, defendants and the bank all prosecute separate appeals from said judgment.
“Plaintiffs and the hank present separate assignments of error in which they respectively contend that the court erred in construing the will of Mrs. N. E. Calvery, deceased, and in holding that Mrs. Mabel V. Calvery took thereunder only a life estate in said tract of land and that the named defendants took thereunder the remainder in fee in and to said tract of- land. Defendants contend that the court properly construed said will as to the interests and estates devised thereby, but that Mrs: Mabel V. Cal-very, by her action in the premises herein-before recited, violated the final provision of the item of said will devising said property to her and that the devise to her was thereby revoked and annulled. They further contend that the effect of such revocation was to accelerate the time when the devise over to them became operative and that the court erred in not adjudging to them immediate possession and title in fee to said land.
“We realize the importance to the respective parties to this suit of an early decision of the issues of law involved herein, and have some doubt as to the proper disposition thereof. We therefore deem it proper to certify for your determination the following questions:
“First Question. Did the will of Mrs. N. E. Calvery give to Mabel V. Calvery a fee simple title to the 200 acre tract of land in controversy herein, or did she take a life estate only with remainder in fee to her children?
“Second Question. If Mrs. Mabel V. Cal-very took a life estate only in said tract of land, has she by her action in the premises hereinbefore set out so violated the restrictive provision embraced in the item devising same to her as to revoke or annul such devise and terminate her estate in said land?
“Third Question. If Mrs. Mabel V. Cal-very’s estate in said land has been so terminated, does such termination accelerate the remainder devised to the named defendants as heirs of her body and entitle them to immediate possession and fee simple title thereto?
“The transcript and agreed statement of facts are made a part of this certificate for all purposes.”

The decisions of this state announce with respect to the rule in Shelley’s Case, as applied to wills and other instruments, the following rules:

(i) Ever}7 part of an instrument should be harmonized and given effect to, if it can be done. If that cannot be done and it is found that the will contains inherent conflict of intentions, the object of the grant being considered shall prevail.

(2) If a will or its parts are equally capable of two constructions, one consistent with an intention on the part of the grantor to do that which it was lawful for him to do, and one consistent with an intention to do that which it was unlawful for him to do, the former will be adopted.

(3) The rule that courts will confer the greatest estate on the grantee that the terms of the grant will permit is subordinate to the rule “that every part of the will should, be harmonized and given effect to, if it can be done.”

(4) In a will to a person for the term of his natural life and at his death to his “bodily heirs,” the words “bodily heirs” thus employed, if from the entire text of the will it is shown that the words “bodily heirs” were used in the sense of children, are words of purchase and not of limitation. Wallace et al. v. First Nat. Bank of Paris, 120 Tex. 92, 35 S.W.(2d) 1036; Hancock v. Butler, 21 Tex. 804; Simonton v. White, 93 Tex. 50, 53 S. W. 339; 77 Am. St. Rep. 824; Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 15; Hunting v. Jones (Tex. Com. App.) 215 S. W. 959.

The doctrine is also announced by the authorities that in construing wills, courts have always kept in mind that a testator may not have had the same opportunity of legal advice in drawing a will as he would have had in executing a deed and that there is more latitude of construction in the case of wills in furtherance of the testator’s intention than in deeds and that the primary maxim of construction is to ascertain the intention of the testator. 4 Kent Com. 216; Andrews v. Spurlin, 35 Ind. 262; Williams, Real Property (5th Ed.) 212; Brockschmidt v. Archer, 64 Ohio St. 502, 60 N. E. 623. For an exhaustive annotation of authorities on this point, see 29 L. R. A. (N. S.) 1038.

The will of Mrs. N. E. Calvery provides that she bequeaths unto Mabel V. Calvery a “life estate” in and to 200 acres of land described therein. The text of the will further provides that “the remainder in and to the. tract of 200 acres ⅜ * * I hereby give and bequeath to the heirs of the body of said Mabel V. Calvery, to have and to hold share and share alike to each after the death of the said Mabel V4 Calvery.” It is contended that by reason of the language used in the will of Mrs. N. E. Calvery that the rule in Shelley’s Case applies and that Mabel Y. Cal-very acquired the fee-simple title to the 200 acres of land described therein. . The Supreme Court of this state has repeatedly held that where it is shown the words “bodily heirs” were used by the testator in the sense of children and from the text of the will it is shown that it was the intention to give the original devisee a life estate only and the remainder in fee to go to the children, the manifest intention of the testator would be carried out. Wallace et al. v. First Nat. Bank of Paris, supra; Hancock v. Butler, supra; Simonton v. White, supra; Hopkins v. Hopkins, supra; Hunting v. Jones, supra.

When we read the entire will in the light of the rule announced by the Supreme Court of this state with a view of ascertaining the intention of Mrs. N. E. Calvery, it is quite plain that she intended to give to Mabel V. Calvery a life estate only in the 200 acres of land and at her death the remainder in fee to go to her children. To hold that Mabel V. Calvery by the language used in the will acquired a" fee-simple estate in the 200 acres of land would be contrary to the manifest in-tentioii of the testatrix and would be contrary to the established rule announced by the courts of this state, as well as by the courts of many other jurisdictions.

Question No, 1 should be answered that Mabel V. Calvery took a life estate only in the 200-acre tract of land with the remainder in fee to her children after the death of Mabel V. Calvery.

It is contended that by reason of the restrictive provision contained in the will of Mrs. N. E. Calvery when Mabel V. Calvery undertook to convey the fee-simple estate in the 200-acre tract of land and filed suit to construe the will to establish title in fee simple thereunder and remove as a cloud upon her title thereto the claims of the respective defendants, such acts terminated her estate in the land.

As grounds for the alleged forfeiture by Mrs. Mabel V. Calvery in the 200-acre tract of land, it is shown that in 1926 she desired to secure a loan on this tract of land and to effect that purpose she and her husband conveyed the land to Stovall, who executed a mortgage thereon in favor of the bank. Im-' mediately thereafter Stovall and wife recon-veyed the land tq Mabel V. Calvery; that Mabel V. Calvery and husband received the money so borrowed. Both deeds purported to convey the land in fee simple without reservation or remainder. Suit was filed to construe the will of Mrs. N. E. Calvery to establish, title in fee simple thereunder in Mabel V. • Calvery to the 200 acres and remove as a cloud upon her title thereto the claims of the respective defendants that she took thereunder a life estate only and that they took thereunder the remainder in fee.

The great weight of authority sustains the rule that a forfeiture of rights under the terms of a will will not be enforced where the contest of the will was made in good faith and upon probable cause. Friend’s Estate, 209 Pa. 442, 58 A. 853, 68 L. R. A. 447; In re Kathan’s Will (Sur.) 141 N. Y. S. 705; Rouse v. Branch, 91 S. C. 111, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296, note; South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann. Cas. 1918E, 1090; 5 A. L. R. 1368; Moorman v. Louisville Trust Co., 181 Ky. 30, 203 S. W. 856; Jackson v. Westerfield, 61 How. Pr. (N. Y.) 399 ; In re Kirkholder’s Estate, 171 App. Div. 153, 157 N. Y. S. 37; Whitehurst v. Gotwalt, 189 N. C. 577, 127 S. E. 582; Wright v. Cummings, 108 Kan. 667, 196 P. 246, 247, 14 A. L. R. 604; Tate v. Camp, 147 Term. 137, 245 S. W. 839, 26 A. L. R. 755; Dutterer v. Logan, 103 W. Va. 216, 137 S. E. 1, 52 A. L. R. 83 and authorities cited therein; In re Keenan’s Will, 188 Wis. 163, 205 N. W. 1001, 42 A. L. R. 836, and authorities cited therein. See annotation of cases following the opinion.

Our Supreme Court has never passed upon this precise question, and the view we take of this record renders a decision thereon in this cause unnecessary. The rule in Shelley’s Case has always been a subject of much controversy. The courts, text-writers, and lawyers have often disagreed in the construction of this rule. The courts of this state have not been in accord in the construction and application of the rule to wills and deeds, and the opinions have by no means been uniform. However, it is now settled in this state that it will be given a strict construction and it is only when the facts bring a case under the strict letter of the rule that the courts of this state will apply and enforce it. Wallace v. First National Bank of Paris, supra.

If Mrs. Mabel Y. Calvery acquired a life estate only in the 200 acres, she had a right to convey it. Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160. Instead of conveying the life estate only, she purported to convey a fee-simple title to-the 200 acres of land. She sought a construction of the will to ascertain if she acquired a fee-simple to the land. She did not undertake to contest the will and destroy it. She merely asserted a right which she contends is vested in her by the terms of the will. Mrs. Mabel V. Calvery, at the time of the acts complained of as set out in the certificate, was justified in believing that, under the terms of the will, she acquired a fee-simple title to the 200-acre tract of land in controversy and that she had the right to convey same, and such acts would not constitute grounds for forfeiture of her life interest in the land and terminate her estate therein. In view of the strictness of the rule against declaring forfeitures, we do not think a suit, brought in good faith and upon probable cause, to ascertain the real purpose and intention of the testator and to then enforce such purpose and intention, should be considered as an effort to vary the purpose and intention of the will. Hence, no forfeiture resulted. We do not intend to declare whether a forfeiture would result from a suit merely to ascertain the intent of a testator, regardless of the contestant’s good faith and regardless of the existence of probable cause for the institution of the suit. No such case is before us.

What we have said pertains only to devises or bequests of real estate. The rule with respect to gifts of personal property is not involved here and we purposely refrain from a discussion of that subject.

The answers made to questions 1 and 2 render it unnecessary to answer question No. 3.

We recommend that the questions certified be answered as above indicated.

CURETON. C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: LEDDY, J. CURETON, C. J.

text:
    GULF PRODUCTION CO. v. GRANGER et al.
    No. 1344—5890.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    John E. Green, Jr., John Broughton, and Claude McCaleb, all of Houston, and Perevil O. Settle, of Fort Worth, for appellant.
    Oswald S. Parker, of Beaumont, and’ John B. Warren and Fowler & Conn, all of Houston, for appellees.
   LEDDY, J.

The Honorable Court of Civil Appeals for the First Supreme Judicial District certifies for the determination of the Supreme Court two questions of law arising in the above cause. The statement accompanying the questions submitted is very voluminous, covering some 21 typewritten pages. We do not deem it necessary to set forth the statement in full, but will state so much thereof •as we deem essential in answering the questions certified.

The James Dyson league is situated in Orange county, Tex. The William Dyson league lies immediately south of the James Dyson, and its north boundary line is the south boundary line of the James Dyson.

K. ICishi and Isaac Lang claimed to be the owners of 200 acres of land along the south 'boundary of the James Dyson league, and on December 23, 1919, leased to the Gulf Production Company 175 acres of said land lying on the south boundary line of the James Dyson league; this lease being known as lease “A.” These same parties leased to the Gulf Production Company and Dan Japhet 20 acres of land immediately east of the 175-acre tract on the south boundary line of the James Dyson league on March 12, 1920, and subsequently Japhet assigned his interest in this lease to the Gulf Production Oompany. This was known as lease “B.”

Oscar Ohesson claimed ownership to the lands lying along the north boundary line of the William Dyson league and leased a portion thereof on February 18,1920. This lease by mesne conveyances subsequently passed to the Humble Oil & Refining Company. Subsequent to the execution of this lease a controversy arose between the Gulf Production Company and its lessors and the Humble Oil & Refining Company and its lessor as to the true location of the boundary line between the William Dyson and the James Dyson leagues. The Gulf and its lessors claimed that the true location of this line was .80 varas south of where the Humble and its lessors claimed said line to Be located. The disputed strip involved 10% acres of land.

K. Kishi filed suit in the federal court at Beaumont against the Humble and its lessors to recover the 10% acres of land. Oscar Ohesson and the Humble Company answered this petition. The Gulf Production Company and Isaac Lang intervened in this suit.

The only issue involved in this case was the claim by the Gulf and its lessors on one side, and Oscar Ohesson and the Humble Oil & Refining Company on the other, as to whether the 10% acres was in the William or James Dyson league. If the land was in the James Dyson league, Kishi and Lang and the Gulf Production Company were entitled to all the oil to be produced therefrom; but if it was situated in the William Dyson league, then Oscar Ohesson and the Humble Company were entitled to such oil.

The Granger heirs claimed a one-half interest in the lands described in the Gulf Production A and B leases, including the 10% acres as against both oil companies and their lessors. These heirs filed suit against the Humble and the Gulf and their lessors in the state district court at Orange, Tex., to recover the same; this suit being styled Mose Granger et al. v. Gulf Production Company et al., No. 4397, in the district court, Orange county, Tex.

While the two suits were pending on January 12, 1922, Warren and the Granger heirs settled their suit pending in the district court of Orange county with the Humble Oil & Refining Company for a cash consideration and with the Humble’s agreement to pay them 2 per cent, of all the oil produced after that date from the 10% acres whether recovered by it in the federal court suit by compromise or otherwise. Upon the payment of the cash consideration specified in this agreement on January 13, 1922, Warren, individually, and as attorney for the Granger heirs, conveyed all their rights, title, and interest to the 10% acres of land to the Humble Oil & Refining Oompany.

On January 19,1922, Warren and his clients settled the Orange county suit with ,the Gulf and its lessors, and an agreed judgment was rendered -in favor of the Gulf Production Company and its lessors, Kishi and Lang, for all the lands covered by leases A and B, including the 10% acres of land which Warren and his elients had theretofore conveyed to the Humble Oil & Refining Company. Judgment was entered that the Granger heirs take nothing by reason of their suit against the Gulf Production Oompany and Kishi and Lang as to any portion of the land sued for.

In order to obtain this settlement the Gulf Oompany paid Warren and his clients a cash consideration, of $10,000, and a further consideration represented in the stipulations of a contract between Warren and the Granger heirs as first parties, the Gulf Production Oompany as second party, and its lessors, Kishi and Lang, as third parties, whereby the Gulf Production Oompany and its lessors agreed to pay Warren et al. ⅛6 °f all the oil produced after January 19, 1922, from the lands covered by leases A and B, except the 10% acres. With reference to the 10% acres the contract provides:

“As to the 10% acres in dispute between Kishi, Lang, Gulf Production Oompany, Humble Oil & Refining Oompany, Oscar Ohes-son and others and described in the suit of K. Kishi v. Oscar Ohesson and others, in Equity at the Federal Court at Beaumont, in the event second and third parties prevail in said suit against Humble Oil & Refining Company and Ohesson, first party shall receive %oth of all oil produced and saved from said 10% acres of land, of which Gulf Production Company shall pay one-half or %0th and Kishi and Lang the remaining one-half or yso in the respective portions as owned by them, to wit: Kishi three-fourths of said %0th and Lang one-fourth of said ⅛¾ and said payment to be made in the same manner as provided hereinbefore.
“In the event the suit of Kishi v. Humble Oil & Refining Oompany et al., involving said strip is settled or compromised, then no payments are to be made to first party as to said strip.”

On February 15, 1922, the Gulf Production Company and the Humble Oil & Refining Company, but not their lessors, settled and compromised the federal court suit. By the terms of this compromise agreement the Humble received 80 per cent, and the Gulf 20 per cent., of all oil produced from the 10% acres prior to February 1, 1922, and it was provided that thereafter the Humble would receive 75 per cent., and the Gulf 25 per cent., of all oil produced from said 10% acres.

’ After this settlement between the Gulf and Humble Companies, the suit of K. Kishi against Humble Oil & Refining Oompany was tried in the federal court at Beaumont and judgment rendered on May 25, 1923. By this judgment it was determined that the 10%-aere tract in controversy was located in the William Dyson survey and the Humble’s lessor recovered the same. Upon this trial the compromise between the Humble and Gull Companies on February 1, 1922, was introduced into evidence, and the decree filed in federal court on May 25, 1923, provides: “It is decreed that the Gulf Production Company is entitled to no relief against the defendants Oscar Chesson and the Humble Oil & Refining Company in virtue of its pleadings herein. Their respective rights having been fixed by an agreement, an adjudication concerning which as between them has not been asked, nor is same necessary.”

Appeal was perfected from this decree, to the Circuit Court of Appeals at New Orleans, and upon hearing that court reversed the judgment of the trial court in so far as it decreed that the 10%-acre tract was located in the William Dyson league and held that the same was located in the James Dyson league and that the Gulf’s lessors were the owners of the land subject to the mineral lease held by the Gulf. Kishi v. Humble Oil & Ref. Co., 10 F.(2d) 356. This judgment recognized the compromise agreement made between the Gulf and Humble, and their rights as so adjusted were not disturbed by the judgment. When the mandate was returned it was decreed by the United States District Court at Beaumont that the 10%-acre tract was in the James Dyson league, and Kishi’s and Lang’s title and the Gulf’s mineral lease were established; but in said judgment it was decreed that the Humble and Gulf should recover the oil produced therefrom according to the terms of their compromise agreement.

The first question certified is predicated upon the foregoing facts and is as follows: “Was the agreement between the appellant and the Humble Oil Company such a settlement or compromise of the suit of Kishi et al. and the Humble Company as relieved appellant of any liability to appellee under the contract upon which this suit is based?”

A correct answer to this question turns upon a proper construction of the following provision of the contract made between the parties to this suit: “In the event the suit of Kishi vs. Humble Oil & Refining Company, et al. involving said strip is settled or compromised, then no payments are to be made to first party as to such strip.”

The suit referred to involved but one issue, and that was whether the land in dispute was located in the James or William Dyson league. If it were located in the James Dyson league, then Kishi and Lang owned the fee title to same, burdened with the mineral lease held by the Gulf Production Company. If said land were located in the William Dyson league, the plaintiffs in that suit owned no interest in the land, but the fee title was owned by Oscar Chesson subject to the mineral lease held by the Humble Oil & -Refining Company.

When these parties agreed thqt no royalty payments were to be made to the Granger heirs in the event the Kishi suit was’ settled or compromised, it was the evident intention of the parties that the compromise or settlement, was to be of such a nature as would finally decide the rights of all parties and therefore completely terminate the suit. It is clear that the compromise of the controversy between the Gulf and Humble Companies was not such a settlement. This compromise did not determine, in a way binding upon all parties to the suit, the issue as to whether this land was located in the James Dyson or William Dyson league. The settlement left between the remaining parties this issue as to title to the strip of land involved to be decided upon a trial, and it was in fact so decided. The settlement made by the Gulf and Humble Companies did not have even the effect of completely adjusting their own interest in the suit, as such settlement did not and could not determine to whom the royalties accruing under their respective leases should be paid. The lessors of these companies were not parties to their agreement, and hence such settlement left wholly undecided the question as to who was entitled to receive the .royalties from the oil produced from the land in controversy.

. Again, the very language of the contract plainly imports a purpose that the settlement or compromise the parties had in mind was a settlement of the suit “involving said strip.” Such a settlement could only be one that foreclosed all claims of title and interest in the land in controversy as shown by the pleadings of the respective parties. When these questions were set at rest, and not until then, was the Kishi suit settled.

It would present a rather anomalous situation if we should hold that the compromise agreement between the Gulf and Humble was a settlement and compromise of the Kishi suit within the meaning of the contract, when such suit was subsequently tried and the issues involved therein decided by the federal court. It was not until this judgment was rendered after a trial that the issues involved in the Kishi suit were fully and finally determined in such a way as to bind all parties to 'the suit. The United States District Court decided that the land was located in the William Dyson league and that therefore Oscar Chesson was the owner of the fee to the land, burdened with the mineral lease of the Humble Oil & Refining Company. Upon appeal this judgment was reversed, the Circuit Court of Appeals holding that the 10% acres were situated in the James Dyson league, and Kishi and Lang were decreed to be tbe owners of tbe fee, and tbe niin-eral rights of tbe Gulf Production Company under its lease were established. This judgment expressly recognized tbe compromise agreement between tbe Gulf and Humble Companies and did not attempt in any way to modify their rights thereunder.

There is no language in the contract which is reasonably and' fairly susceptible of the interpretation that if one of the parties to the Kishi suit should compromise or adjust his rights frith another party to the suit the royalties due thereunder should not be payable. The Gulf Company and Kishi and Lang are by the express terms of the contract to be relieved from payment of the specified royalty only in the event the Kishi suHt is settled or compromised. The suit necessarily involved all of the parties thereto and their legal rights as shown and reflected by their respective pleadings. Until such a settlement or compromise was made as could be effectively pleaded in bar to the issues there asserted, the suit was not settled, or compromised so as to relieve the appellant of liability under its contract.

Erom what has been said it follows that question No. 1 should be answered in the negative.

The second question certified is as follows: “Upon the facts stated, was appellant wrongfully denied its legal right to inter-plead all of the parties interested in the subject matter of the suit and have the rights of all such parties against it adjudicated and settled in this suit.”

It seems that all of the beneficiaries under the contract sued on who had not assigned their interest to John B. Warren and J. A. Oonn were parties plaintiff in this case except Mose Granger, Mary Scales, and Millie Caron. More than a year before the trial of the case the latter named parties had, through their attorneys, filed a formal disclaimer.

A proper answer to the second question cer-ified is therefore dependent upon whether the' intervening plaintiffs represented by Messrs., Fowler and Conn were actual parties to this suit. They were such parties unless these lawyers were without authority to file the intervening petition for Sarah Jane Granger, individually, and as guardian of Tresimond, John, Sarah, Eleanor, Mary, and Violet Grangers, minors.

Appellant duly filed its motion to require Fowler and Oonn to show their authority to represent the above-named parties. The action of the court on this motion is shown by the following recital in the final judgment rendered in this case: “On this, the 23rd day of November, A. D. 1927, came on to be heard the above styled and numbered cause and then came the plaintiffs and intervenors and announced ready for trial, then came the defendant, and presented a motion to require of John B. Warren and Fowler and Conn, Attorneys, to show authority for instituting this suit in behalf of Sarah Jane Granger and Ada Granger, and the court having heard said motion and the evidence submitted thereon, overruled the same, to which defendant excepted.”

It appears from the certificate of the Court of Civil Appeals that the bill of exception taken to the ruling of the court sets out in full the affidavits of Sarah Jane Granger and Ada Granger and the correspondence and pleadings in the Orange county suit, which, if true, show that Fowler and Conn were not authorized to file the petition in intervention in this suit for Sarah Jane Granger and Ada Granger, and their minor children. The bill of exception does not contain any evidence showing that Warren or Fowler and Oonn had any authority to represent the parties mentioned as attorneys in this suit, nor does the bill recite that the evidence set out therein was all of the evidence heard by the court on the motion.

The judgment of the court overruling appellant’s motion to require Fowler and Conn to show that they were authorized to represent the intervening plaintiffs specifically recites that the court heard evidence thereon. In the absence of an affirmative showing in the record to the contrary, it must be pre-. sumed that the evidence heard on this motion was sufficient to sustain the ruling made by the court.

To overcome this presumption appellant relies upon its bill of exception reserved to the action of the court in overruling its motion in which is set forth that in support of its motion it offered certain evidencé tending to show that Fowler and Conn were not authorized to represent the intervening plaintiffs. The Court of Civil Appeals in its original opinion in this case held that the bill of exception was insufficient to overcome the presumption arising from the recital in the court’s judgment for the reason that it is not shown in such bill that the evidence therein set forth constituted all of the evidence-offered and considered by the court on the hearing of said motion. We think this holding is a correct one. If appellant desired to urge the question that there was no testimony, presented to the court showing that Fowler and Conn had any authority to represent the intervening plaintiffs, except that set forth in the bill, it should have been so recited therein. In the state of the record we may assume that all of the evidence set forth in the bill of exception negativing the authority of Fowler and Conn to represent the intervening plaintiffs was offered before the court; yet for aught that appears in the bill other testimony tending to show that said attorneys were authorized to represent such plaintiffs may have been heard, considered, and accepted by tbe court. Tbe recital in tbe bill that appellant offered certain evidence to sustain its motion does not negative tbe fact that other evidence sustaining tbe authority of the attorneys to represent the intervening plaintiffs was offered and considered by the court. In this state of the record it must be presumed that the evidence which the judgment of the trial court recites was heard was sufficient to justify a finding that Fowler and Conn were authorized to represent the intervening plaintiffs.

It is a universal rule that “where the determination of a question for review depends on evidence, and the record on appeal does not show or purport to show all the evidence pertaining to it in the manner required by the practice in the particular jurisdiction, it will be presumed that the evidence was sufficient to- sustain the ruling or action of the court.” 4 C. J. p. 785, § 2665; Slayden & Co. v. Palmo (Tex. Civ. App.) 90 S. W. 908; Williams v. Planters’ & Mechanics’ Nat. Bank, 91 Tex. 651, 45 S. W. 690; Allen v. Henn, 197 Ill. 486, 64 N. E. 250, 252; Hoge v. Herzberg, 141 Ala. 439, 87 So. 591; State v. Shepphard, 23 Mont. 323, 58 P. 868; Maher et al. v. Shenhall et al., 96 Iowa, 634, 65 N. W. 978; Spriesterbach v. Schmidt’s Estate, 64 Minn. 211, 66 N. W. 721; O’Malley v. Heman Const. Co., 255 Mo. 386, 164 S. W. 565; City of St. Joseph v. Pitt, 109 Mo. App. 635, 83 S. W. 544; McNutt v. Roberts et al. (Tenn. Ch. App.) 48 S. W. 300; Dorer v. Hood, 113 Wis. 607, 88 N. W. 1009; Smith v. Pence & Pier, 33 S. D. 516, 146 N. W. 709.

We therefore answer that appellant was not wrongfully denied its legal right to inter-plead all of the parties interested in the subject-matter of the suit, as all such parties were properly before the court.

We recommend that the questions certified be answered as indicated herein.

CURETON, C. J.

The opinion of tbe Commission of Appeals, answering the certified questions, is adopted, and ordered certified.


author: CRITZ, J. CURETON, C. J.

text:
    McGUIRE v. OSAGE OIL CORPORATION.
    No. 1611— 6016.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    McFarlane & McFarlane and F. V. Hin-son, all of Graham, and John D. McComb, of Jacksboro, for plaintiff in error.
    Cantey, Hanger & McMahon, of Fort Worth, and yinson, Elkins, Sweeton & Weems, of Houston, F. T. Denny, of Fort Worth, and Tom Fletcher, of Houston, for defendant in error.
   CRITZ, J.

This suit was instituted in the district court of Jack county, Tex., by H. B. Me-. Guire against Osage Oil Corporation, and Vacuum Oil Company, both corporations, to recover damages for the alleged breach of contracts he had with such companies. Trial with a jury in the district court resulted in a verdict and judgment for McGuire. On appeal by the oil companies, the Court of Civil Appeals reversed this judgment, and rendered judgment for the oil companies. 41 S.W.(2d) 302. McGuire brings error.

For the purposes of this opinion, we shall state the facts of this case in their most favorable light for McGuire. So stated, they are as follows: On June 15, 1920', McGuire entered into a contract with Osage Oil Corporation, and on June 17, 1929, he entered into a contract with Vacuum Oil Company. By the terms of these contracts he agreed to drill a well on the east SO acres out of the 320-aere tract of land known as the Clayton tract, on the James Matthews survey, in Jack county, Tex., wliich was then jointly held by the two oil companies under oil and gas leases. It was agreed that said well was to be drilled to a depth of 3,500 feet, unless oil or gas was found in paying quantities at a lesser depth.

As compensation for drilling the above well, McGuire was to receive an assignment from each and both of the oil companies of their leasehold interest to said B. 80 acres of land. Both contracts contained provisions making time the essence thereof.

McGuire drilled the well provided for by the above contracts to a depth of 2,S92 feet, completing the same on August 25, 1929, with a gas production of 1,800,000 cubic feet per day. We treat this as production in paying quantities. On the completion of the well on August 25, 1929, McGuire notified the two oil companies of such fact, and demanded the delivery of the lease assignments to the 80 acres of land on which the well was located, as provided for in the above contracts.

On August 29, 1929, four days after the completion of the well, McGuire made a contract to sell the gas production from the well in question to Brazos River Gas Company. By the terms of this last contract, the Brazos River Gas Company was given the right to take over the well as of date of its contract, and drill the same deeper, and put in condition for production. The Brazos River Gas Company was to pay the expense of the above work, but McGuire was to furnish the derrick, rig, casing, etc., on the ground and in the well, at the date of the contract, and all tools, etc., necessary therefor.

The two defendant oil companies seem to have delayed delivering their lease assignments to McGuire after the completion of his contract with them because of their contention here, treated as legally wrong, that the well should be deepened before they were obligated to deliver. Such delay compelled McGuire to leave his rig, tools, easing, etc., on the lease 43 days longer than otherwise would have been necessary to comply with his contract with the Brazos River Gas Company. This delay was occasioned in order for McGuire to comply with his contract with the Brazos River Gas Company. McGuire suffered damages during such 43 days, as found by the jury, in the total sum of $1,333, as follows:

Rental value of rig at $1S.00 per day .$ 774.00
Wages of watchman to watch property at $5.00 per day.. 215.00
Value of McGuire’s time at $8.00 per day . 344.00
Total .$1333.00

At this point we call attention to the fact that the contract between McGuire and Brazos River Gas Company was entered into long after the original contracts between McGuire and the two defendant companies were entered into; indeed, the last contract was entered into after McGuire contends he had fulfilled the suit contracts.

It is evident from: the statements we have made that McGuire is here attempting to collect special damages growing out of his contract with Brazos River Gas Company. So far as shown by this record, the Brazos River Gas Company contract was not directly or indirectly in the minds of the parties when the suit contracts were made.

The above oil companies contend that McGuire cannot recover the above items of damages for the breach of their contract with him because they are too remote, and could not have been in the minds of the parties at the time the suit contracts were made. In this connection the defendant oil companies further contend that McGuire is wrongfully attempting in this action to recover damages growing out of a contract between himself and Brazos River Gas Company, made long after the suit contracts were made, and not known to or in contemplation of the parties to the suit contracts at the time of their inception.

McGuire, in effect, admits that the damages here sued for grew, in a measure, out of his contract with Brazos River Gas Company, made after the suit contracts were entered into, but contends that he is nevertheless entitled to recover such damages, because the pleadings and proof show that the defendant oil companies had knowledge of the terms of his contract with Brazos River Gas Company at and during the time they breached the suit contracts.

It is undoubtedly the general rule of law in this country, and in England, that damages recoverable for the breach of a contract are those that may fairly and reasonably be considered as arising naturally, or according to the usual course of things from the breach of the contract itself, or such damages as may reasonably be supposed to have been in the contemplation of the parties to the contract at the time it was made, as the probable result of the breach thereof. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Calvit v. McFadden, 13 Tex. 324; Houston & T. C. Ry. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Parks v. O’Connor, 70 Tex. 377, 8 S. W. 104; 8 R. C. L. p. 455, § 25, and notes; 17 C. J. p. 740, § 75, and notes.

It is also practically the universal rule in England and America that damages arising out of special circumstances, different from those which would naturally and properly flow from the breach of such contract, can be recovered only where it is shown that la't the time of the making of the contract the defaulting party had knowledge of such special circumstances. 17 C. J. p. 746, § 77; 8 R. C. U. p. 459, § 27; Jones v. George, supra.

It seems that the above rule is known as the rule in Hadley v. Baxendale, an early English case, decided in 1854. Hadley v. Baxendale, 9 Exch. 341; 23 L. J. Exch. 179; 18 Jur. 358; 5 Eng. Rul. Cas. 502. It, however, is hut an embodiment of civil law principles, and is substantially the same rule as had been stated at an earlier date in the Code Napoleon, and by Chancellor Kent. 8 R. C. L. p. 455, § 25, supra.

It is also practically the universal rule of law in this country and in England that recovery can be had for damages or losses resulting from collateral contracts affected by the breach of the suit contract, but this is not permitted, unless the collateral contract was known to, or in contemplation of, the parties, at the time the suit contract was entered into. 17 C. J. p. 748, § 78. We think this is but another application of the general rules already announced by us.

The reasons for the above rules are that all persons who are free to contract, or to refrain from so doing, have the right to contract in contemplation of the ordinary and natural’incidents arising from either the performance or nonperformance of such contract, or such incidents and consequences as a,re known to, and in contemplation of, such parties at the time the contract is entered into. Of course, all persons should make their engagements in good faith and with an honest intent to carry them out, but unexpected events may transpire which make it impossible for a party to perform his contract, and few would want to enter into contracts if they thereby assume the responsibility of carrying out other engagements over which they have no control, and which were not in contemplation or existence at the time they contracted. Horner v. Wood, 16 Barb. (N. Y.) 386, 389.

The trend of the later decisions in this state is to recognize some modification of the above rules as applied to contracts made by public utilities as such. Conn v. Texas & N. O. R. Co., 14 S.W. (2d) 1004 (Tex. Com. App. opinion approved); Western Union Tel. Co. v. Hice (Tex. Com. App.) 288 S. W. 175; Bourland v. Choctaw, O. & G. R. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647. As shown by Judge Nickels of this section of the commission in the Conn and Hice Cases, supra, the reasons underlying the rule in Hadley v. Baxendale do not have full application to public utilities such as railroads and telegraph companies because they do not have the option to make, or refuse to make, the contract in the first instance, and could not charge extra compensation if they were informed at the time of making the contract of the special consequences of a breach thereof;

We have carefully read the authorities cited by McGuire and have made diligent search ourselves, and have found no authority which would justify or authorize a holding that the two defendant oil companies in this case can be held liable on their contracts with McGuire for special damages arising out of his subsequent contract with Brazos River Gas Company.

The effect of the opinion of the Court of Civil Appeals is to hold that, in so far as the pleadings and proof of this record show, all the 'elements of damage embraced in the verdict and judgment for McGuire were covered and occasioned by his contract with Brazos River Gas Company, and therefore he failed to make out a case of damage growing out of the suit contracts. This is in harmony with the rules of law we have announced. In fact, it is but the proper application of such rules without announcing in so many words.

The Court of Civil Appeals reversed the judgment of the district court, and rendered judgment for the defendant oil companies. What we have said shows that we are in agreement with the judgment of reversal, but we do not think the judgment should have been rendered. The mere breach of the contract would entitle McGuire to nominal damages. Furthermore, we cannot say for certain that on another trial McGuire will not be able to plead and prove a case within the rules of law we have announced. We do hold, however, that so .far he has done neither.

We recommend that the judgments of the Court of Civil Appeals and district court be both set aside and reversed, and' that this cause be remanded to the district court for a new trial.

CURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both reversed, apd cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: HARVEY, P. J. CURETON, C. .T.

text:
    BOARD OF SCHOOL TRUSTEES OF YOUNG COUNTY et al. v. BULLOCK COMMON SCHOOL DIST. NO. 12 et al.
    No. 1591—5966.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    S. A. Penix, Fred T. Arnold, and Marshall- & King, all of Graham, for plaintiffs in error.
    C. W. Johnson, Jr., of Fort Worth, for defendants in error.
   HARVEY, P. J.

On May 27,1930, the county board of school trustees of Young county detached from Bullock common school district No-. 12 of that county an area of said district’s territory comprising about 1,629 acres of land, and annexed same to the Graham independent school district. The area detached from the Bullock district was less than 10 per cent, of the territory of said district. For present purposes, the action of said county board in making such change will be taken as being in all respects in conformity to the provisions of the act of the Legislature, which we shall designate as House Bill 25, and which constitutes chapter 47, First Called Session of the 41st Legislature (1929), page 106. The Bullock common school district, acting through its trustees, brought this suit against the said county board, the Graham independent school district, and the county school superintendent of Young county, seeking judgment declaring invalid the order entered by said county board which purports to change the boundary lines of the Bullock district as indicated above. Among the alleged grounds for such invalidation is the failure of the county hoard to give notice to the trustees of the Bullock district to appear before the county board for a hearing, in regard to the proposed change, as provided in section 2 of what we shall designate as House Bill 220, being chapter 109 of the Acts of the 41st Legislature (1929), First Called Session, page 259 (Vernon’s Ann. Civ. St. art. 2742e, § 2). It seems that on the same day the county board made the order for said change of boundaries, some sort of hearing was held by said Board, but the trustees of the Bullock district were not notified of such hearing, and did not learn of it until some time after the order making the change in the boundary lines of said district had been put into effect. The trial court gave judgment in favor of the Bullock district, invalidating the order of the county board purporting to change the boundary lines of said district. The Court of Civil Appeals affirmed tbe judgment of the trial court. 37 S.W.(2d) 829.

The controlling question before us goes to the legal effect of the failure of the county board to notify the Bullock district trustees of the hearing held by the county board, in ■consequence of which failure said trustees were not afforded an opportunity to be heard in respect to the proposed change of the boundary lines of said district. This calls for a consideration of House Bill 25 and House Bill 220. Both of these acts were passed in the year 1929, at the same session of the Legislature; and both were in effect when the change in question was made by the county board. House Bill 25, so far as need 'be set out here, reads as follows;

“Section 1. In each county of this State the County Board of Trustees shall have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line of the two districts; provided the Board of Trustees-of the district to which the annexation is to be made approves, by majority vote, the proposed transfer of territory and provided, further, that where the territory to be detached exceeds ten per cent. <10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached. The petition shall give the metes and bounds of the territory to be detached from the one and added to the other district and must be signed by a majority of the qualified voters residing in the said territory so detached. Upon receipt of the said petition, duly signed, and upon notice of the approval of the proposed annexation by the Board of Trustees of the district to which the territory is to be added, the County. Board of Trustees shall pass an order transferring the said territory and redefining the boundaries of the districts affected by said transfer, the said order to be recorded in the Minutes of the County Board of Trustees. Provided that no school district shall be reduced to an area of less than nine square, miles.”

House Bill 220, so far as need be set out, including the caption to the act, reads as follows:

“An Act validating the actions of the County Board of School Trustees in changing boundary lines of Common School Districts in counties having a population of not less than 9,000 nor more than 9,010, according to the United States Federal census of 1920; giving the County Board of School Trustees in all counties authority to make changes in all Common School Districts, to create Common School Districts, to subdivide districts; providing in ease any provision of this Act shall be held unconstitutional or invalid then such holdings shall not affect the remaining provisions; 'and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. That all acts of the County Board of School Trustees in counties having a population ‘of not less than 9,000 and not more than 9,010 according to the United States Federal census of 1920, in changing boundary lines of Common School Districts under the jurisdiction of said County Board, shall-be and are hereby validated, and that all Common School Districts in said counties, whether created by General or Special Law in this State or by order of the County Board of Trustees, heretofore laid out and attempted to be established or changed by the County Board of Trustees or other proper officers of any such counties and recognized by eitiier State or County authorities as school districts and the orders of said County Board in making certain changes in Common School District boundary lines are hereby validated in all respects as though they had been duly and legally established in the first instance.
“Sec. 2. That on and after the passage of this Act the County Board of School Trustees in any county in this State shall have authority and full power to create Common School Districts, to subdivide districts, and to change boundary lines of any or all Common School Districts legally coming under the jurisdiction of the County Board of School Trustees, subject to the supervision of the District Court having jurisdiction over the; county where the County Board is appointed or elected; provided that before any changes may bei made in boundary lines of school districts the trustees of the Common School Districts affected shall be notified to appear before the County Board for a hearing, and after said hearing, or the date set for said hearing, the County Board of Trustees may pass such order or orders as will carry out the provisions of this Act; provided, further, that the trustees of the districts affected may appeal from the decision of the County Board to the District Court.” Vernon’s Ann. Civ. St. art. 2742e, §§ 1, 2.

It is to be noticed that House Bill 25 concerns school districts generally, whereas the other act has reference to common school districts. It is further noted that the first-mentioned' act contains no provision relative to notice and hearing; whereas section 2 of the other act does. The plaintiff in error contends that such provision in the last-mentioned act can, in no event, be given application, for the reason that said ach as a whole, is void under that portion of section 35, article S, of the State Constitution, which provides that “No bill * * ⅜ shall contain more than one subject, which shall be expressed in its title.”

The principal inquiry thus presented is whether the assailed act embraced more than one subject, within the meaning of the above provision of the Constitution. A careful examination of the provisions of the act, as an entirety, discloses quite clearly that the general subject-matter of the act is the providing of authority for the construction of common school districts in the state, including the alteration of their boundary lines. Sections 1 and 2 constitute the main body of the act. Each of those sections deals with a part of the same general subject-matter. The provisions of one section relate to common school districts in counties of the class there designated, and purport to provide authority, retrospective in operation, for the construction of those districts and the alteration of their boundary lines. The other section provides authority, prospective in operation, for the construction ' of common school districts generally, and for the alteration of their boundary lines. There can be no doubt, in view of the authorities, that the act, as a whole, embraces but one subject, within the meaning of the Constitution, and that the various provisions thereof are germane to that subject. McMeans v. Finley, 88 Tex. 515, 82 S. W. 524; Morris v. Gussett, 62 Tex. 728. Inasmuch as the caption of the act sets out the substance of the body of the act, it is hardly necessary to say that, in our opinion, the subject of the act is sufficiently revealed in the caption, and the act does not fall under condemnation of the constitutional provision mentioned. So far, we have not adverted to the contention of counsel to the effect that section 1, being essentially of the nature of a local or special law, is invalid under other provisions of the Constitution. We do not pause to consider this question. For, whether that section of the act be invalid or not, same may be taken into consideration, as we have done, in ascertaining the general subject-matter embraced by the act as a whole, and concerning which the Legislature purposed to legislate. Besides, even though section 1 be invalid, as asserted by counsel, still its invalidity does not affect the validity of the other section, since section 3 (Vernon’s Ann. Civ. St. art. 2742e note), provides a saving clause to that effect.

We áre in accord with the holding of the Court of Civil Appeals, in .this case, to the effect that the two acts mentioned, having been passed at the same session of the Legislature, and both comprehending the matter of authority in the county board of school trustees to change boundary lines of common school districts, should be construed together as being supplementary to each other in the last-named respect. So construing said acts together leads to the conclusion that the Legislature intended the provision for notice and hearing, contained in section 2 of House Bill 220, to operate as a limitation of the authority conferred on the county board by the other act, so far as a change in the boundary lines of a common school district is involved. Compliance with said provision was prerequisite to the exercise, by the county board of school trustees of Xoung county, of authority to change the boundary lines of the Bullock common school district, and, since there was no such compliance, the order for sueh change was unauthorized and therefore is invalid. The district had the right to apply directly to the courts, in the first instance, for relief against said invalid order. State Line Consolidated School District v. Farwell Independent School District (Tex. Com. App.) 48 S.W.(2d) 616.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals affirming same be affirmed.

CURETON, C. .T.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: CRXTZ, J. CURETON, C. J.

text:
    ELIZONDO v. REAGAN et al.
    No. 1603—5993.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.

      Jones, Goldstein, Hardie & Grumbling, of El Paso, for plaintiff in error.
    Whitaker & Peticolas and Turney, Burges, Culwell & Pollard, all of El Paso, for defendants in error.
   CRXTZ, J.

J. H. Elizondo instituted this suit in the district court of El Paso county, Tex., against J. J. Reagan and First National Bank of El Paso, Tex., to recover damages for the alleged breach of a written contract for the sale and purchase of cattle. Elizondo alleged that Reagan had agreed to purchase from him 550 head of stags and steers to be delivered at the stockyards of El Paso, Tex., at a named price per pound; that such cattle were delivered as per contract; that Reagan wrongfully refused to receive them; and that he (Elizondo) was damaged in the „sum of $0,000, for which he sues.

First National Bank was made party defendant as a mere stakeholder; it being alleged that it held $5,000 deposited by Reagan to guarantee his performance of the contract. The bank filed the ordinary answer of a stakeholder, and is not otherwise interested in the litigation.

Reagan pleaded a general demurrer and general denial. He also specially answered, •admitting the contract, but alleged that it provided that the cattle should be delivered in a merchantable condition, and that this-part of th.e contract was breached by Elizon-do, in that the cattle tendered for delivery were not merchantable.

Reagan also filed a cross-action against Eli-zondo and sought damages against him for the alleged failure to deliver merchantable cattle as called for in the contract.

The case was tried in the district court to a jury, and resulted in a verdict and judgment denying Elizondo any recovery on his action, and allowing Reagan a recovery against Elizondo on his cross-action in the sum of $2,675.75. Elizondo appealed to the Court of Civil Appeals at El Paso, which court in all things affirmed the judgment of the district court. 37 S.W.(2d) 1058. Elizondo brings error. We refer to the opinion of the Court of Civil Appeals for further statement of the case. We think, however, that the statement we have made is sufficient for this opinion.

We shall refer to the parties in the order in which they appeared in the district court, to Elizondo as plaintiff, and to Reagan as defendant.

As shown above, the defendant defended against plaintiff’s action, and sued him by cross-action on the ground that he (plaintiff) had breached the contract by failing to tender for delivery merchantable cattle as provided by the contract. The issue was sharply drawn on that question by the circumstances of the case and the testimony of the opposing .witnesses. The trial court submitted such issue to the jury by direct and appropriate questions, and the answers thereto were favorable to the defendant.

During the trial the defendant himself, J. M. Riddle, W. D. Connell, and other witnesses testified for the defendant, and gave evidence very damaging to plaintiff on the issue of the merchantability of the cattle. Also the testimony of these witnesses was directly contradictory to the evidence, direct and circumstantial, offered by the plaintiff.

While the jury was deliberating on its verdict, and while the members thereof were badly divided on the issue as to whether the cattle were merchantable and other issues, the foreman of the jury, who was a railroad man, stated in substance and effect that he (the juror) had had dealings with these cattle men, meaning defendant and his witnesses, and that they had been fair with the railroad in all their claims. This juror also talked about Riddle and Connell and other witnesses as to their integrity, and stated, in effect, that what he stated about them was based on his dealings with them. The juror, Turley, heard the above statements, and testified, in effect, that the only weight they had with him was on the question as to whether the witnesses mentioned had told the truth. We quote the following from the testimony of the juror, Turley: “The foreman is a railroad man. As I remember he said he, had dealings with these cattle men, and they had been fair with the railroad in all their claims, .fair in their dealings. He talked about Riddle and Con-nell, and also different witnesses as to their integrity and all. He told us what his experience had been with them, and their integrity and fair dealings. That was before we finally came to a decision. So far as I am concerned it would only have this weight, as to their testimony, as to whether a man could be perjuring himself or telling the truth, or be smart enough to perjure himself, and not be caught. This man did say they had been fair and honorable in their dealings with him.”

The- material testimony of the other jurors heard on the motion for a new trial is set out in the opinion of the Court of Civil Appeals, and in the interest of brevity we here refer to that opinion for further details of the matters under discussion. It is sufficient to say that in our opinion the testimony of the several jurors, taken as a whole, demonstrates that, while the jurors were deliberating on their verdict, and while they were sharply divided on material issues, certain statements about facts outside the record were made in the jury room by the foreman of the jury which were calculated to cause the jury to accord more credibility to the testimony of defendant and certain of his witnesses than they otherwise would have accorded.

Plaintiff, by proper assignment, contends that the above matters present such misconduct of the jury as should work a reversal of the case. This contention was presented to the trial court and to the Court of Civil Appeals. In passing on this question, the Court of Civil Appeals holds [37 S.W.(2d) 1058, 1062]:

“'The questions presented are: Was the' statement of Christian in discussing the credibility of witnesses on the issue of the merchantable condition of the cattle material, and did it affect the jury’s verdict? The jury are the judges of the credibility of the witnesses.
“We have reviewed many cases and have found no case where the only matter mentioned in the jury room, assigned as misconduct, was some statement by a member of the jury going solely to the credibility of some one or more of the witnesses. We do not hold that it was within the province of the jury to mention or to consider any fact or facts not in evidence, in determining the weight to be given to the testimony of a witness; we think it irregular and should not be done, but we are not prepared to say the communication made by the juror Christian was such violation of article 2234 of the statute as to be reversible.”

We disagree with the above holding. Certainly no court would permit a witness to give in open court the testimony bolstering the character and credibility of the defendant and his witnesses that was given in this instance in the jury room behind locked doors. It is true that the information only bore on the character and credibility of the defendant and his witnesses; but under the circumstances of this record, which shows that the evidence they gave was sharply in conflict with the evidence offered by the plaintiff on material questions, and in view of the further fact that the jury was divided on such questions at the time the statements were made, we think they were calculated to injure the plaintiff and induce, or contribute to induce, a verdict against him that, might otherwise have been for him.

It is the settled law of this state that, wheré the jury is guilty of misconduct, and where from the whole of the pertinent record it is reasonably doubtful to the Supreme Court itself whether such misconduct affected the verdict on any material question, such verdict should not be allowed to stand. Houston & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104; Hines v. Parry (Tex. Com. App.) 238 S. W. 886 ; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; International-G. N. R. Co. v. Cooper (Tex. Com. App.) 1 S.W.(2d) 578; St. Louis S. Ry. Co. v. Lewis (Tex. Com. App.) 5 S.W.(2d) 765; Castevens v. T. & P. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89.

Finally, we wish to say that, when a juror serves in the trial of a case where he is acquainted with one or both parties, or one or more of the witnesses, it is not permissible to impeach his verdict by attempting to show by such juror that he was influenced by such acquaintanceship, but in spite of this it is not proper for a juror who is acquainted with the litigants or their witnesses to communicate to other jurors not so acquainted facts not in the record, which are calculated to influence the verdict in a way different from what it would have been absent such communication; and this is true as to such communications which go only to the credibility of witnesses.

We recommend that the judgments of the Court of Civil Appeals and district court be both reversed, and the 'cause remanded to the district court for a new trial.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.