*1 him, such conclu- discovered fireman admits that he when the conjecture.” upon pure sion based held, Appeals trial court and Court of Civil Both the petitioner undisputed law, facts under a matter of col- result of sustained as to recover not entitled holdings by the Court of Civil trial court and lision. The Court, and, harmony Appeals the decisions this are Black, testimony furthermore, clearly is shown admitted, it would control a nature that not of such reversing and justified reason is case. For that this Court remanding judgments trial court and Court case.. Appeals affirmed. of Civil should be 1,
Opinion 1952. delivered October joins in dissent. Justice Associate Garwood Rehearing overruled December 1952. al L. Pickens A. Harrison et
W. Gerald No. A-3602. Decided October 1952. Rehearing overruled December (252 575.) S.W., Series, *2 Campbell Bradley, Andrews, Kurth, Bobbitt, Hamblen & Cook, Bobbitt, Jt., Lesher, F. A. Raymond A. James C. all of Bobbitt, Antonio, Wilson, Houston, Lee of San Prentice Robt. Moody, Austin, petitioner. Dallas, Dan affirming Appeals erred in the tria of Civil The Court verdict of a absence court’s finding by jury on the ultimate fact issue as to whether or oil reached the salt water well or not quantities well, and with suffi reached there with sufficient gallons content, mingled per when minute cient saline *3 irrigation water, Co., rice. Fox v. Hotel Dallas 361, 461, Thompson 517; Erisman v. 140 Texas Texas S.W. 731; Ormsby Ratcliff, 242, 2d 2d v. 117 Texas 1 S.W. 167 S.W. 1084. Jaworski,
Fulbright, Crooker, Bates, Freeman & Leon Aus- Sample Davidson, Jr., Houston, and H. all of tin C. Wilson W. Bell, Edna, respondents. Hamblen, and H. W. both for Petitioner, having Pickens, emptied admitted that he salt dug pits and water from his oil wells into open into the water sand into neighbor permitted ditches which flowed into creeks which bearing carry it to be absorbed the water sands which well, having plaintiff’s it to appropriate and found in answer to and issues definitions that each of said acts con- negligence having stituted and the further found each damage complained proximate a of said acts was cause of the of, petitioner’s City contentions must be overruled. of Panhandle Byrdd, 96, 660; Caster, 130 Texas 2d Norton v. S.W. Big 487; Texas 2d S.W. Turner v. Lake Oil Co. Texas 155, 96 2d 221. opinion delivered the of the Court. Mr. Justice Griffin Respondents, Combs, Harrison filed suit in the Dis- County, Texas, against trict petitioner Court of Jackson seek- ing damages alleged pollution as a result of an of water respondents’ irrigation water, alleged, well and which it was salty had negligent become petitioner, as a result of such acts of damaged and had Harrison, tenant, a rice had growing during on Respondents sought Combs’ land dam- ages both to estate, Harrison’s leasehold ownership Combs’ answering special issues, the Upon verdict land. of the against petitioner respondents gave judgment court trial Appeals by the Court Civil judgment affirmed and this 2d 316. 246 S. W. at Galveston. eight points of error this court with before
Petitioner comes Appeals. decision in holding Our of Civil of the Court Co., Disposal Water Texas Salt Landers v. East ap- pending on while this cause was decided 248 S. W. petitioner’s point con- plication disposed of the 8th adverse argument, urged point tention, not 8th has been by petitioner. filed the briefs grouped remaining may points error be into
Petitioner’s following contentions: being findings (1) jury on the ultimate fact There no necessary recovery by respondents (a) whether or respondents’ petitioner’s reached salt water from wells irrigation well, (b) quantities, reached there in sufficient commingled (c) when sufficient saline content with the coming growing rice, water from the well to against petitioner. (2) no could rendered be There is support finding proximate no evidence to cause. (3) support recovery There is no evidence to for future alleged permanency contamination, as to (4) Right lessee Harrison to for contamination *4 occurring prior water respondent sands to date of Harrison’s contract, (5) given lease and There was a double the trial court. carefully 1269-page We have read and studied the statement facts, 214-page
of documentary the exhibits, Volume the and maps, the some 50-odd plats, cross-sections and which consti tute the record of the evidence introduced the three-weeks trial of this cause. In addition we have examined and studied the peg elaborate holes, model of the purports 45-core and which to show the elevation of the holes and the thickness of the first in length sand each hole. To detail the at evidence would opinion entirely long. make this too We will endeavor to1sum testimony bring marize high this mass of so as to points out the standpoint evidence viewed from respondents the recognized accordance with well rules of law.
It is fundamental applied the rule to be is “if discard- ing giving evidence all adverse and credit to all evidence favor- plaintiff indulging every legitimate
able to the and conclusion plaintiff might favorable to the which have been drawn from the proved, might a jury plaintiff, facts found in favor of the support Cartwright there was evidence to their verdict.” then v. 502, 507, Canode, 696; 106 Texas S.W. Underwood v. Se- Annuity Company, 381, curity Life and Texas 194 S.W. Scharrenbeck, 585; Montgomery v. Texas & Co. Ward Grossman, 508; Liedecker 2d 204 S.W. Jur., p. 443, Appeal 232; Tex. & Error Civil Cases 3 B cited therein. 935; and authorities
Sec. eleven-year an lease Harrison had showed evidence The beginning Immediately land, December 1948. Combs on irrigation equipped an well this drilled and he thereafter irrigation $25,000.00 for at a cost of prepared land the and land very crop year land was rice for fine planted a rice and properly prepared land sod. The the same as and land May April and of 1949 and crop seed sowed the vicinity. very the in that fine stand —one of best up to a came fine, healthy crop color and when watered the crop flooding abundantly. After a water from grew flourished July, tops first stalks well about the began colored, plant brown rust began reddish turn out, growing. not boot nor stopped The stalk did sick, and look ground irrigat- plot of would be As each fill as it should. head damage. begin deterioration con- show This ed stipulated It was harvested the fall. was tinued until actually made on the barrels of rice 359.7 number of irrigated well, rice, could be and which acres price received for rice. the rice which was When also damage, July began evidences of about to burn and show first Wyche, respondent Experi- 13, 1949, consulted Dr. of the Rice College, inspected A. M. who of Texas ment Station application of fertilizers certain and recommended recognized applied promptly respondents and in the best man- application crop, did not method. This benefit the ner and Wyche Dr. continued to deteriorate. testified that after ex- it amining land, way planted rice had been culti- began vated, appearance rice after deterio- show *5 ration, crop respond fertilizer, and the failure of the to the damage except saw other source of the water from he no irrigation well, know and that he did not cause damage other than salt water from the well. Other witnesses crop damage, and testified to the before after the when good completed produced the well was it first water that tasted Respondent Harrison drinking water. fine and was a little soft dying and started rice that after Clark testified and witness (and no crop put “firing had been fertilizer up” and it since time the first water for they the well avail) then tasted salty. oc- This tasted and the water pumping started had been made time a test 20, 1949, this August and at about curred drops nitrate a silver by dropping few witnesses these water, produced sample the well a in solution for both witnesses All water. scientific heavy in cloud a blue sign in there was salt this was said testified sides who agreed the concentra- sample that the heavier all water formed. the cloud darker would be in the water tion of salt crop 1949 rice (who interest had an and Clark Harrison working of the the actual Harrison, most of who did under crop) get any other they water were unable testified irrigation they well, flood the continued source than they water had be- crop after believed from this well even so, they salt, done had because come contaminated with testified to produced rice. Other witnesses no good land, good crop, the preparation for the fine stand 1949; July in condition until of rice and its excellent appearance July, had and that then after flooding appearance water. caused salt The contamination fol- evidence as to the source of was as general direction, northeasterly : lows About in a two miles Kentucky brought November 1943 the Oil Field Little petitioner. began making approximately Huseman well No. brought (this salt water weeks after it was about three 15% approximately 1943). would fix the date as December This output increased water well its in 1944 to and in salt 25% figure to 80%, per which latter was 150 165 barrels day. output In 1949 the water salt had increased to 92% approximately per day. 460 barrels had Petitioner other oil making Chernosky wells some salt water on the Kramer & leases put (The and which was into Lunis Creek. Harrison well was creek.) located about 6000 feet west from this From beginning production until June 1949 this salt water was (or run into Looney’s) borrow ditch which took to Lunis Creek. generally ran creek a north south direction part across a of the Combs tract. It was estimated that about 495,000 20,000,000 gallons barrels and in excess of of salt water disposed had been of down this borrow ditch and Lunis Creek during years disposal gen- the six this method of used. slope ground eral of the surface of the and the run-off of rain *6 drainage dry southerly Creek was a direction. Lunis in a varying deep depths around 10 to feet but
canal May complaint through land. was made the Combs In ran emptying of the of the salt water Railroad Commission petitioner notified and the Commission into Lunis Creek agents violating (which petitioner Rule 20 his he charge Kentucky they production in Little Field testified of the pollution. existed) him to desist from further and ordered knew agents representative petitioner’s the local of the saw One of they stop him then told Railroad Commission water, disposing of the salt and about June 17th method disposal square pit 25 x 25 feet completed a about petitioner ground deep at and about 13 feet into the Huseman the bottom completed Chernosky pits for Kramer were & No. 1 well.. Other Nick Martin testified that with the wells. Petitioner’s witness knowledge superiors represented peti- and consent of who field, pipes he sank on their ends two concrete tile tioner in this long feet in diameter and feet into the bottom of the two three pit. promote absorption was done to of the Huseman This pit reached, water the sand which had and which was into Beginning referred 17, all the “first witnesses as sand.” June petitioner ran the salt water the Huseman No. 1 pit, well into that and it was about full 28th and June the well down, attempt by petitioner was shut and after an unsuccessful plugged. to shut off the salt water the well abandoned and water, It approxi- was testified that about 5000 barrels salt 200,000 gallons, during mately pit days into went the ten by petitioner. its use
Three witnesses who had drilled holes into the first core sand, sand, water and one into the second water testified in the depths varying case. feet, The first sand was at from 10 while second sand ran about 28 to 32 feet. Each took witness samples tested, water from each sand where sand was not dry, samples analyzed by and the competent chemists for (salt) content, reports sodium chloride analysis of such were introduced evidence. The first (respondents) witness coring part took his early latter of October and in Novem- During part ber of 1949. the first of October 1949 the rainfall vicinity high was from 9.34 inches, inches to of 14.85 total October rainfall was from 15.55 to 22.66 inches. All scientific heavy witnesses said pass rains would into first sand and dilute the salt content. The salt content of the corings near witness, Lunis Creek as shown first and in the first two parts sands were from 4440 per parts of salt million Chernosky pits, Huseman, Kramer water, near closest holes The core well. p.p.m. the Harrison near *7 Combs field on the the rice nearest to Lunis on Creek witness p.p.m. The second p.p.m. 3561 2300 land showed corings took his witness) made his (who petitioner’s was 11, 1950, through March samples 1949 December from ran from comparable location (salt) each content the chloride Harrison’s pit, 500 near near Huseman 31,350 p.p.m. along were 2500 readings comparable Lunis Creek well. The (peti- witness p.p.m. third p.p.m., The p.p.m., and 1250 chloride and the corings tioners’) in November made pit, 110 and p.p.m. inside Huseman content ran along on well, Lunis Creek p.p.m. Harrison’s near p.p.m. 16970, 4265, land, and 1595 Combs about diameter and was 26 inches in well casing down deep. hole an inch steel 500 feet was Inside 12 inch bottom 225 feet and from there on to about casing casing. wall of Between the outside of steel gravel from the poured well coarse so that water picked up percolate various sands could pump. down and be feet, casing perforated which was not for 109 setting, pump were cut below this level there holes but water-bearing casing opposite sand. One sides of the each petitioner’s was con- that the first sand witnesses testified Kentucky well. Field to Harrison’s tinuous from the Little down ground expert testifiying respondents, A water in answer to proper hypothetical question that the salt water from testified percolated through pit the Huseman sand and con- the water petitioner’s testified taminated Harrison’s well. One of witnesses any place except pit that he could the Huseman think Respon- where the salt water contamination come from. could dent Harrison testified that as he well had soon as discovered his salty neighborhood, turned rode and a he around over his scope surrounding country, looking wide for sources of contamination, and there was no other source of contamination except Kentucky pits which he could find in the Little Field. give any No witness could other source of contamination. support 1 We believe the record contains evidence to jury’s findings petitioner polluted the fresh water sands water, with his pollution salt and that such reached the Harri- proximate well son and was cause suffered respondents. This recitation of the evidence also all refutes assignments petitioner has that there is no evidence to cause, findings dam- proximate and future
support on ages. assignments are overruled. All the “no evidence” judgment can entered no be
Petitioner further contends that against ultimate fact him because there certain necessary respondents, not sub- recovery by which were to a any recovery by respondents. jury, precluding mitted to the thus “proxi- urges of an issue of This contention submission negligence, petitioner’s cause” mate after each issue of Ry. Pepper, way orthodox set out in Falls & Okla. Co. Wichita finding on the was not sufficient causation, causation; question ultimate issue but such case, particular under the should have been broken facts of this liability necessary fix component down into the elements *8 petitioner. supplemental in his brief Petitioner states his views clearly pointedly and follows: as
“* * * complex postulate under a fact situ- is this: When particular composing ‘cause in fact* ation one issue out of those turns, controlling the whole case becomes itself a issue on which logi- separately postulate a issue This is must be submitted. litigant necessary cal and the axiom that a is entitled result of separate controlling separate- to a on all issues. The submission controlling unaf- submission of a of cause in fact leaves issue foreseeability fected the and the non-con- submission of other trolling issues of cause in fact.” (b), (a),
Petitioner therefore contends that subdivisions (c) (1) summary points and of Point his stated under our error, issue, requir- each constitute an and therefore ultimate jury finding respondents ed a in favor of on each subdivision any judgment against petitioner before could be rendered. judge charge gave following learned trial instructions: his “By ‘proximate charge the term cause’ used is meant as a by sequence cause which in a natural and continuous unbroken independent cause, produces new and an event and without which proxi- the event would not have occurred. And to abe event, mate cause of an a it should such cause that it could be reasonably anticipated by person been a and foreseen ordinary prudence ordinary in the exercise of care that event or some similar a event would result from such cause as probable natural and consequence. may There more than one be proximate event, only proxi- cause of an but there can be sole one mate cause of an event. fore- in the used as independent cause’ “By ‘new the term act meant is defining cause’ ‘proximate
going instruction agency de- independent separate omission of or stroys omis- negligent act or between connection causal in- agents defendant’s any, defendant or sion, if itself, becomes, thereby of, any, complained jury, injury. of such cause immediate as used by term ‘natural’ are instructed “You nor- meant is defining ‘proximate cause’
foregoing instruction by term experience and ordinary mal or in accordance break, cessation therein, without meant is as used ‘continuous’ therein, is ‘sequence’ used as interruption, word a result.” which follows or that succession meant complaint brought objections or no forward Petitioner has instructions. of these complaint, point to sustain no cases in
Petitioner cites well estab- are certain case. There and we have found no such court’s the trial we sustain lished rules of law which believe manner and method this submission. provides Procedure Rules Civil Rule 279 Vernon’s Texas issues, upon special he part cause “When the Court submits controlling plead- written
shall submit ings issues made * * fairly *. court has submit- evidence Where the controlling pleading and the evi- ted the raised such *9 dence, of the failure to shall not be reversed because case phases shades of the submit other and various or different * * same issue. required. Two submissions of the same issue are never Com- 561, (T.C.A.), 2d mercial 76 Standard Ins. Co. v. S.W. Shudde personal opinion, aff. in a no written wherein it was held “negligence,” injury containing proper case a definition of lookout,” “proper defi- court should the term as such not define negligence. given submitting nition if twice the issue of be Dunn, 197, Little Rock Furniture 148 222 2d Co. v. Texas S.W. (3-5). 96, City Byrd, In Panhandle 130 Texas 106 of v. S.W. 660, held when of 2d it was the court submitted issue proximate cause, and defined that term so as to include “fore- seeability,” “foreseeability” inquiring an additional issue as to given. should not have been The case was reversed because of a reasoning conflict in the answer to the two issues. of Byrd present case in sustains the trial court’s action 360, Ry. Pepper, 134 cause. Falls Okla. Co. v. Texas Wichita recognized leading 79, 2d 84 has come as the S.W. to be setting applicable case out the rules of law of ulti- submission negligence mate fact issues. of a case The method of submission suggested following In there case at bar. was the one Hough Grapotte, 1090, complaint 144, v. 127 Texas 2d S.W. submitting special was made that the in issues trial court erred domicile, submitting rather than it was contended the what real domicile, ultimate (1) issues residence involved in to wit (2) intention make the residence home. Such contention following language: question was overruled “The has many been contrary times Multi- determined to this contention. plicity only of issues should be avoided and those ultimate judgment. submitted which will form the of a The issues basis controlling merely residence and intention are elements of the issue of disposed domicile and were included Howell, answer comprehensive to the more In Howell issue.” 14, 979, complaint Texas was made because S.W. trial court in that one divorce case had submitted only issue as to “the acts or conduct of defendant toward plaintiff, any, excesses, (constituting)) if constituted cruel such outrages nature,” treatment or of such a etc. Court of etc. The Appeals submission, question Civil certified the under such case, the statute and facts of that held was correct. We such good, submission and said that the issue submitted covered the one Further, ultimate issue fact in the case. this court said:
“The issue to be determined is the total effect the defend light ant’s conduct considered in the of all the evidence. This many facts, require cases will to consider number ‘group may but of facts’ constitute the ultimate issue rather single fact, than one Fox v. Dallas Hotel See Co. case, Where as in ultimate the one issue subsidiary facts, improper embraces a number of it is not * * facts, include the issue these several perfectly. The last sentence fits situation ultimate our proximate subsidiary issue cause in this case includes the facts (a) petitioner’s whether salt water from oil well reached respondents’ irrigation well, (b) if it reached there sufficicient quantities, (c) mingled with sufficient content when saline *10 growing the fresh water to rice. Those were evidentiary proxi- facts included within the fact of ultimate City Lurie, mate cause. 391, also See of Houston v. 148 Texas 871, Ry. 224 61; 2d 14 S.W. A.L.R. 2d Terminal Co. v. Dallas & Bailey, 359, 379, 151 Texas 250 2d wherein held that S.W. we independent cause” “new and the term included when court and inde- “new cause, defined proximate definition its new separate issue on cause,” pendent not submit it should independent cause. Estes, (TCA), 218 S.W. Inc. v. Foods Meadowlake See also D. C. 441; E., Ft. Worth 2d 2d error ref. N.R. S.W. N.R.E.; ref., 839, writ 2d
Ry. Capehart (T.C.A.) 210 S.W. Co. v. 60; Dakan 2d Tips, S.W. Phoenix Ref. Co. v. 371; v. Werner case) 2d Humphreys, (TCA, S.W. Co. Ct. overrule We ref. N.R.E. Brehm, (TCA) writ breaking issue necessity down petitioner’s points as to of error correctly sub- cause, the trial court proximate and hold that mitted issue. such permitted to complains has been
3 Petitioner that Harrison land, date of prior injury recover the evi- contention is lease. answer to this Harrison’s well, first support when will dence the fact that well, salt brought good was no operated and there in and after Har- contamination, arose contamination but that such pumping water using irrigation well and rison had been therefrom, by Har- injury suffered was the time of the rison. charge, petitioner
Prior to court’s ob- the submission of the jected special 15 and 16 on issues Nos. 13 and grounds (respondents) plaintiffs permit that same would damages. have a double 12 had to do Issues 10 thru crop. with the 1949 Issue No. as follows: 13 reads you preponderance “Do find from a of the evidence that plaintiff value of inter- the use of A. Harrison’s leasfoold Gerard question acts est the land in has reduced been inquired the defendant heretofore about? Answer ‘Yes’ or ‘No’.” “yes”. answered this issue Issue No. was as
follows: you preponderance
“What do find from a of the evidence be the amount which the use of the value leasehold plaintiff question interest of A. land in Gerald Harrison has been reduced? cents, any.”
Answer in dollars and *11 jury $49,160.00. answered this issue Issue No. 15 was
as follows: you
“Do preponderance find from a of the evidence that plaintiff rental value of F.C. Combs’ interest in the land in question by any has been lessened acts defendant heretofore inquired about?
Answer ‘Yes’ or ‘No’.” jury answered “Yes” to this issue. Issue No. 16 is as
follows:
“By amount, any, you what evidence, preponderance if do find from a of the plaintiff the rental value of C. F. Combs’ interest in question the land in was reduced ? Answer in dollars cents, any.”
To
$18,600.00.
issue the
answered
reading
A
Special
clearly
Issues Nos. 13
demon-
thru
any
strates
injury
suffered to Harrison’s “leasehold inter-
est” and
year
Combs’ “interest” in the land
in-
for the
1949 is
cluded in the issues. The evidence shows that
the first evidence
damage
July 1,
to the rice
noticed
about
Respondents
continued to use the water from the
well
to water
crop.
as needed to mature this
The rice
October,
damage
harvested in
1949. Therefore whatever
began prior
July
prior
harvesting
done
crop.
mind,
the 1949
inquire
To our
Issues Nos. 13-14 which
as
respondent
to lessened
value
Harrison’s leasehold interest
question being reduced,
the land
imposes
no time
reduction,
necessity
limitation
such
must of
include 1949
damage,
lessening
being
of the leasehold interest. There
no
damage done,
limitation or exclusion as to
issue must
damage done,
excluding
cover a.'l
and there is no sound basis for
any poi
plain wording
tion of such
under the
of the issue.
By
wording
issue,
affirmatively
of the
were
in-
sought.
structed to
all
include
in their
done
answers
inquiring
In
respondent
as to
rental
the lessened
value of
Combs’
question,
interest
in the land
we likewise find no
jury.
limitations or restrictions on the
the evidence shows
Since
damage causing
the lessened rental value of Combs’ interest
harvesting
crop,
occurred before the
of the 1949
and since
damage,
and 16
cover
whole of such
bound,
worded,
lessening
under the issues
include
However,
rental
specifically
value.
issues 10 thru
to do
crop. If
1949 rice
interest
and Combs’
both Harrison
land,
damages
permanent
respondents’
is one
suit
land, value
decreased
is the
the measure of
*12
permitted. Neither
value is
recovery
rental
for the land’s
no
damages to the
permanent
anything for
Harrison recover
could
per-
Tenant,
“To
Sec.
Landlord &
land. 27 Tex. Jur.
(permanent
rental
-value
recovery
market and
a
the
mit
of
recovery for the
permit
injury)
a double
in one
would
case
App.
damages.”
Hutton,
Com.
v.
Texas
same
Lone Star
Co.
Gas
Har-
pleadings respondent
(6-8) 21. In their
pendents holding objection an court’s cite cases charge merely recovery” says permit “a double preserve point. quarrel is insufficient There is no petitioner However, had than statement of the law. more objections. consider the above in his We must statement McKay, charge Employers Ass’n. Ins. Texas whole. certainly petitioner could Texas 210 W. 2d 147. While S. specific objection, we have concluded been more preserve objections a whole sufficient to taken as brought point appeal, properly Petitioner when forward. on appeal. properly preserved point has Having answering Special demonstrated that 13-16, necessarily inclusive, included Issues Nos. both damages, jury having the amount of 1949 found *13 damages holding $31,356.00, no hesitation in totaled we have special that the cause the of an the error in issues did rendition against improper judgment rights His cer- defendant. tainly $31,356.00 prejudiced to the extent of this which is wrong could not most serious done him. This be held to be probably error” that cause of “harmless did not the rendition improper given judgment. an From a calculation of the answers by controlling appropriate special the the damages crop, injury to suffered account of the 1949 rice respondent, Harrison, trial the awarded of court to the sum $28,568.80 damages crop. respondent, for his To to the 1949 Combs, damages $2,787.20 was awarded the sum of to crop. exactly the 1949 From these facts we can determine the recovery respondents. amount of double for each of the De- ducting gives judgment court, these items from of the the trial $49,260.00 recovery us the Harrison, sum of in favor of $13,700.00 the sum recovery respondent, favor Combs. judgment The hereby of the trial court is read modified to that Gerard A. Harrison do recover of have and and from L.W. $49,260.00; Pickens the sum of and that C. F. have Combs do and recover $13,700.00, of and from L.W. Pickens the sum of Except above, judgments modified the of both courts below hereby are affirmed.
Opinion delivered October joined Smedley, dissenting. Justice
Mr. Justice Calvert I portion majority dealing that opinion dissent from of the damages respondents the amount of awarded the and from reforming judgment of the judgment the portion that of the court. trial respondents, Combs majority holds that both of dam- tenant, double recovered
landlord and Harrison holding determine ages; “we can and, based respond- recovery exactly for each amount of double judgment elimina- ents,” proceeds reform trial court’s running in favor of ting judgment $28,568.80 from the the sum running $2,787.20 judgment from the Harrison and the sum of pe- represent These items of in favor of Combs. have been cuniary the Court found loss damage rice to their 1949 respondents sustained crop. they is that are eliminated theory the items on which respondents. awarded are included items other analysis An reflect record will actually only rcovery if actually a double decrees special in answer awarded 1949 to Harrison special issue No. 16. in answer 14 and Combs issue No. stage proceedings and at this do not I submit that we fact, jury did, include cannot know that I further submit to those issues. in its answers imagination judicial only by stretch the wildest is damage, any, included precise of 1949 amount can determined. Nos. 14 and 16 be answers to issues *14 majority the nature of to misconceives It seems me that the here, The the error we are called to consider. error any, judgment decrees a fact the not in the that there be lies may recovery do so. Inasmuch as the fact that it double but in damage by crop to answers to other 1949 be determined phrase issues 14 it court to word or issues was error for the jury’s could award 16 answers those issues and the so that again. damage to examine issues same Our first task then is they if, fairly permitted interpreted, 14 answers and 16 to see did, damage. they there was no that would include Unless such charge inquiry pursue no further. error in the need we damages. dealing first No. 16 with Combs’ We consider issue $13, holding majority answer that damage crop 600.00 treats to issue No. 16 includes 1949 though they inquire has lost Nos. 15 and 16 as whether Combs anything amount of the under his lease to Harrison agree inquiry If I would loss. such fact the nature of the 578 damage jury crop have included could 1949 their inquiry.
answer to 16. is issue No. But such not the nature of the nothing Issues Nos. 15 and 16 have to do with the lease already Harrison or the losses sustained or thereafter to be by By sustained Combs under that lease. issue No. 15 the jury asked whether is land Combs’ will rent for less than petitioner’s wrongs, rented for by but for issue No. 16, how much less. It is well established decisions of injured Court that a landowner land whose is and whose crop destroyed by negligent may thereon is acts of another recover both the diminished value land the value of crop. Gulf, Ry. Helsley, 593, 596; C. & S. F. 62 Co. Texas Ry. Pape, International & G. N. Co. v. Texas 11 S.W. 526; City Ware, 57; of Amarillo v. Texas 2d S.W. Hutton, Lone Star Gas Co. v. App., Tex. Com. majority opinion assign utterly why fails a reason may landowner recover the diminished market value of land crop may the value aof lost but not recover the diminished rental value of crop. his land and the value of a lost I can think saying no sound basis for the latter involves double recovery agree while the former I does not. cannot issue No. 16 jury was so worded as to lead to include 1949 damage in being their answer thereto. There no such error we pursue should inquiry further. respect
With respondent Harrison it is held that crop damage is included in the trial court’s de- creeing recovery to him $49,160.00, found special answer to issue No. 14 be the “the amount value use” of his “leasehold interest” in the land was agree wording reduced. I of issue such as No. to authorize the to include an- their charge swer may thereto. But the fact that the issue and the require have been erroneous this extent does not conclu- sion that the did in its award answer to the compel $28,568.80 Harrison’s issue subtraction of recovery. my opinion
It is that as to Harrison’s *15 judgment provisions presents the the of a situation to which 503, Procedure, applicable. It Rule are is Texas Rules of Civil judgment there directed for errors that we shall not reverse of law trial unless are of committed in the course of the we opinion reasonably complained cal- the that error of “was the
579 im- of an probably rendition did cause the culated to cause and proper judgment in the case.” may assume that purpose discussion we the of this
For jury in permit 16 the was error No. as to to so word issue damage crop when that answer thereto clude 1949 in their damage separately specific being determined item of was worded as issue was so to other issues. the answers permit Since damage jury their answer crop the to include 1949 “reasonably thereto, may that we assume also the error awarding judgment entry to Harri calculated” to cause the provisions damages judgment. improper But the son double —an analysis stop our at of the rule direct must not that we point and what thus far have concluded. order a reversal on we go ordering and find from We must further before a reversal Waite, (see an Texas examination the record Cole v. 151 whole 139, 849; Hill, City of Galveston v. 246 S.W. 2d Bailey, 860; Ry. Texas 2d Term. v. Dallas Co. “probably cause” the 379) did 2d that the error 250 S.W. Moreover, decreeing recovery. rendition of a a double jury’s petitioners satisfy the answer burden is on us that damage. crop P. probably to issue No. 14 included Texas 191; City Hering, L. & Co. Texas S. W. Hill, supra. Galveston v. only support majority offers its conclusion probably issue answer to No. 14 did include 1949
damage been is that the issue was so worded that it could have “by wording majority says included. The then affirmatively dam- issue instructed to include all age sought” done their answers and concludes that necessity” answer to issue No. 14 therefore “must of crop damage. include by diligent I am Aside the fact that unable charge any instruc- search to find in the such affirmative court’s certainly majority, tion mentioned not instructed include in its all done to Harrison sought By giving separate issues answer to issue No. 14. dealing impliedly least was at damage. regard segregate instructed I this item of do fact issue so worded that could probably proof been included was included. as sufficient that it following My own examination of the record reflects pertinent By petition upon facts: to trial which he went pleaded 5,076.4 specially Harrison loss “that reason *16 2,200 damage of rice and barrels rice” barrels of the damaged $34,179.31. By separate para- he was graph in the sum of pleaded he the value of his leasehold estate which $75,000.00 had a and reasonable of fair value not less than for farming damage purposes totally destroyed rice had been to his $75,000.00 alternatively in the sum of and that he had been deprived right use, possession enjoyment of his to the and of his damage $75,000.00. leasehold estate to his of In sum sought prayer $109,179.31, sum of he the two appears pleading jury items. So it was advised sought damages separate items, that the two items of were neither question of which was included in In the other. answer to as opinion of to his the fair and of his leasehold reasonable value prior damage estate to the time the “exclusive occurred crop you, rice had in con- Harrison testified that was 1919” servatively age $75,000.00 at least and that its after dam- value $4,000.00. was jury Thus advised evidence of a $71,000.00 loss in value of the leasehold estate of exclusive damage. crop the 1949 In addition there detailed testi- mony damage crop. reference to the and loss the 1949 permit finding issues submitted did not make a damage the total suffered Harrison because of the loss crop. his 1949 In answer to issues 11 and 12 the found injury that but for the land thereto the would have made 21 acre, per barrels raising, harvesting of rice that the cost of selling per the rice was barrel and $1.25 rice per sold for $10.00 Based barrel. these answers upon stipulations parties planted of the of the of acres number rice, sold, actually number of barrels harvested the amount judg- received therefor the court awarded Harrison for $28,568.80, ment the sum representing this sum Harri- son’s hardly likely interest loss. total It 41/60th seems item, only by judge included this arrived at by a process, somewhat involved arithmetical in its answer to issue No. 14.
Consideration of the record leads to further conclu- these $28,568.80 If $49,160.00 sions: crop of the item is allocated to damage according holding majority, $20,591.20 only to the damage is left be allocated to to the remainder of the eleven- year although pleadings leasehold estate all the and evidence damage effect that the to the remainder of the lease- damage. greater hold estate To was much than the 1949 $28,568.80 in an allocate to 1949 would also result only estate of award to the tenant to his leasehold as much as awarded to landlord times one one-half although land, the award rental value diminished than ten times for 1949 was more the tenant *17 landlord, great and al- awarded to the as the as ensuing grown though crops ten his interest be great year period of the landlord. ten as the interest times my foregoing record demon- facts To mind the shown include 1949 conclusively jury did not strate almost crop It that we 14. follows in its answer issue No. say probably it. It then follows should not did include wording say of issue that we should not the error in judg- improper probably of an resulted in the No. rendition ment. say provisions
It is no of Rule do answer that the apply judgment. The affirm when we reform and a trial court’s important part of effect of our judgment an is reverse which it is of an error courts below because probably judgment. improper not shown an This is resulted in my opinion prevent. the result rule In was intended to judgments Appeals the trial should court and Court of Civil be affirmed. Smedley joins opinion.
Mr. Associate Justice Opinion delivered 1952. October Rehearing 3, 1952. overruled December
Ex Parte Elizabeth Boren Eaton 5, 1952. Decided November
No. A-3793. Rehearing overruled December 557.) (252 W., Series, S.