Opinion
No. 12610.
January 7, 1954. Rehearing Denied February 4, 1954.
Appeal from the District Court, Matagorda County, G. P. Hardy, Jr., J.
Harris Harris, Bay City, Hugh G. Dunlap; Williams, Lee Kennerly, Jesse J. Lee and Willard B. Wagner, Jr., Houston, for appellants.
Donald S. Owen, and Erickson, Bell Keen, Bay City, Fred W. Waechter, Houston, Turner, Rodgers, Winn, Scurlock Terry, Frank J. Scurlock, Dallas, and Fouts, Amerman Moore, Jos. W. Moore, Houston, for appellees.
Appellees as plaintiffs in the trial court brought this suit in trespass-to-try-title to recover title to an undivided 1/2 of 11/64 non-participating royalty interest in the oil, gas and minerals in and under a certain 2012.92 acre tract of land in Matagorda County, Texas, and, in the alternative to reform a deed from American National Insurance Company to Gillette Hill. The trial court directed a verdict in favor of appellees for title and possession of the royalty interest sued for and entered judgment accordingly.
Prior to February 25, 1944, American National Insurance Company owned the fee simple title to the 2012.92 acres in question. On that date it conveyed the land to M. G. Johnson and wife but reserved to itself a 1/16 royalty in all the oil, gas and minerals produced from the land, said reservation being in the following language: `It is expressly agreed and understood that out of the grant hereby made there is excepted and reserved to the grantor, its successors and assigns, an undivided 1/2 of 1/8 of all the oil, gas and other mineral royalty in and under and that may be produced from the above described land (said 1/2 o said 1/8 royalty being a 1/16 of all the oil, gas and minerals produced from said land).'
For brevity, the deed of February 25, 1944, from American National Insurance Company to M. G. Johnson and wife, which contained the reservation above set forth will be referred to as the Johnson deed.
On May 5, 1948, American National Insurance Company executed a royalty deed to Gillette Hill. It is under this deed that appellants hold title. Since the decision of this appeal depends upon the construction of the deed from American National Insurance Company to Gillette Hill, a copy thereof, omitting acknowledgments and other portions immaterial to our discussion, it hereto attached and made a part hereof as Exhibit A to this opinion for the purpose of clarity. It should be noted that all deeds out of Gillette Hill to the various appellants contain the same reference for all purposes to the Johnson deed as appears in Exhibit A.
Appellees hold under subsequent deeds from American National Insurance Company, which conveyed such interest as remained in that company after the deed to Gillette Hill.
On May 5, 1949, M. G. Johnson and wife executed leases upon portions of the 2012.92 acres, which provide for the payment of a royalty of 1/4 of all oil, gas and minerals produced from the land and under certain circumstances for the payment of a royalty of 7/16 of all oil, gas and minerals so produced.
Appellants' contention is that the deed from American National Insurance Company to Gillette Hill (Exhibit A), which will hereafter be referred to as the Hill deed, conveyed to Hill 1/4 of any royalty that might be payable under any leases present or future.
Appellees, on the other hand, contend that the reservation to American National Insurance Company contained in the Johnson deed is the source of the titles of appellants and appellees and that the royalty deed to Hill conveyed only 1/4 of 1/8 royalty therein described, or a 1/32 royalty which, they say, is the royalty to which Hill or those holding under him would be entitled regardless of the provisions of any present or future leases.
The litigants support their respective contentions in forceful and analytical briefs in which we feel safe in assuming all of the authorities which might be of assistance have been presented. None of the cited authorities, however, appear, from careful examination, to present factual situations identical or even strongly analogous to the facts in the present case. Our undertaking, then, is to apply to the facts here presented the general principles of law which we feel to be applicable and to reach a conclusion consistent with such principles. It is an undertaking which is not without difficulty and the conclusion reached is one as to which we are not entirely free from doubt.
Appellants base their appeal in this Court on two asserted points of error. First, they say the trial court erred in reforming the deed from American National Insurance Company to Gillette Hill as against them, and second, the court erred in failing to render judgment for appellants as to the royalties sued for. In their brief appellants cite authorities which they say support their first point. We find it unnecessary to pass upon this point or the applicability of the cited authorities for the reason that we find the Hill deed to be capable of that construction contended for by appellees without the necessity of reformation. The judgment of the trial court does not, by its terms, undertake to reform the deed but provides that appellees are to recover of and from appellants the title and possession of the royalty sued for. This, we think, is the correct judgment and should be affirmed.
The construction of a written instrument is a question of law. Basically, the problem is to ascertain the intention of the parties to the instrument. That intention is to be determined from the instrument itself when viewed in the light of the circumstances attendant at its execution.
The question here is not one of construing the deed for the purpose of ascertaining the type or nature of the estate conveyed; it is conceded by all parties that the deed conveyed a non-participating fee or perpetual royalty interest as that term is generally understood and as defined in the case of Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543, and many other Texas cases. The litigants differ only in their claims as to the extent or quantum of such estate. Therefore, it is apparent that of primary importance in our inquiry is that portion of the instrument commonly referred to as the `description' which defines or identifies the thing with which the parties were dealing. By reference to Exhibit A, it will be seen that the description begins with the words, `An undivided 1/4 interest in and to all of the oil royalty, gas royalty, etc.,' and ends with the words, `reference to which deed is here made for all purposes.' The real question is what did the parties intend by the use of the words, `all of the royalty,' following the words, `an undivided 1/4 interest in and to.' Did they intend to convey 1/4 of any royalty which might thereafter be provided for in future leases, regardless of amount, or did they intend by referring to the Johnson deed `for all purposes' to convey 1/4 of the 1/8 royalty, 1/2 of which was reserved in the Johnson deed by American National Insurance Company? We believe the latter intention is discernible. Appellants were, of course, charged with notice of the Johnson deed not only because it was a muniment in their title and of record, but also because it was expressly referred to for all purposes in the Hill deed, under which they hold. Inspection of the Johnson deed would disclose that American National Insurance Company owned by reservation 1/2 of 1/8 royalty. In the Hill deed there is described 1/4 of `the royalty' and as a part of the description reference is made to the Johnson deed `for all purposes.'
As a general rule, a general description in a deed will yield to the definite and particular description, and where the property conveyed is described in general terms and a reference is then made to another deed for a more particular description of the property, the description in the deed referred to becomes a part of the description and the purchaser must look to the reference deed to determine the extent of his acquisition. Tennent v. Caffery, 170 La. 680, 129 So. 128; Thomas v. Young, 93 W. Va. 555, 117 S.E. 909; Getchell v. Whittemore, 72 Me. 393; Thompson on Real Property, Vol. 4, Sec. 3082.
The case of Carter's Adm'r v. Quillen, 239 Ky. 583, 39 S.W.2d 1012, 1013, by the Court of Appeals of Kentucky, was a suit for breach of warranty. The deed to plaintiff conveyed with covenants of general warranty all merchantable timber standing on seven adjacent tracts of land described as being the same tract conveyed to plaintiff's grantor by deed recorded in deed book at given date and "to which reference is hereby made for a more definite and particular description of said lands and timber." The deed to plaintiff's grantor disclosed the acreage of the seven tracts and that mineral and timber rights in three of the seven tracts had previously been conveyed to other parties. The Kentucky court, after stating the general rule in the language above employed, held that reference to the prior deed disclosed that the timber had been conveyed to other parties as to three of the tracts described, and that, therefore, the present deed disclosed an intention to convey only that timber which had not previously been conveyed and consequently there was no breach of warranty.
In that case the court noted that references to prior conveyances are made for varying purposes and that for such a reference to have the effect there held it must be clear that the reference is for the purpose of affording a definite description. In the present case he reference is `for all purposes,' which would certainly include the purpose of affording a description of the property conveyed.
The general rule stated above has been recognized and frequently applied in Texas. In Steed v. Crossland, Tex.Civ.App., 252 S.W.2d 784, 785 (writ refused), the court considered a deed purporting to convey two tracts containing a total of 150 acres, more or less, wherein the description contained the following language: `It being the same land conveyed to me by B. W. Wilson of Caddo Parish, Louisiana, by deed dated December 5, A.D. 1917.' The deed from B. W. Wilson to the grantor dated December 5, 1917, disclosed that B. W. Wilson in such conveyance retained all mineral rights. The court held that the reference to the previous deed put the grantee on notice thereof and that the deed under consideration even though it did not expressly except minerals, did not purport to convey to the grantee and mineral rights.
In Loomis v. Cobb, Tex.Civ.App., 159 S.W. 305, 307 (writ refused), the general rule is stated in the following language: `It is a familiar and thoroughly well-settled principle of realty law that a purchaser has constructive notice of every matter connected with or affecting his estate which appears by recital, reference, or otherwise upon the face of any deed which forms an essential link in the chain of instruments through which he deraigns his title. * * *"
In the solution of the problem of determining the intention of the parties to the instrument here under construction, we feel that some weight should be given to the proposition that the most usual royalty provided for in oil and gas leases is 1/8. In State National Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757, 761, the court makes the following statement: `The fact stated in the foregoing quotation, that the usual royalty in oil and gas leases is 1/8, is in our opinion one so generally known that judicial knowledge may be taken of it. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 862; Leonard v. Prater, Tex.Com.App., 36 S.W.2d 216, 220, 86 A.L.R. 499.' In the case of Morriss v. First National Bank of Mission, Tex.Civ.App., 249 S.W.2d 269, 277, the court uses the following language: `We have no quarrel with the statement that a one-eighth out of production is the usual royalty, but we do not accept the non sequitur that any provision for a greater or different royalty is beyond the realm of agreement. The usual one-eighth royalty no doubt is one indicia of a royalty, and in the absence of a stated fraction, that fraction is regarded as the royalty meant; * * *. To interpret intent by what is usual is one thing, but to interdict the power to contract by what is usual is another.'
In the last quoted case the court was confronted with a contention that as a matter of law royalty can only exist out of actual production and that a royalty cannot exceed a 1/8 of actual production, even though the parties clearly agree to a greater royalty. Our problem here patently is not the same. Ours is one of determining the intention of the parties, and the cited cases are authority for the proposition that the fact that 1/8 is the usual royalty is entitled to weight in determining intention. By this discussion we do not hold that the description `1/4 interest in and to all of the royalty' when standing alone would be construed to mean `1/4 interest in and to the 1/8 royalty' simply because 1/8 is the usual royalty. The opposite of such has been held by our Supreme Court in cases which appellants cite, but in none of the cases which appellants cite does the court hold that the description `1/4 interest in and to all of the royalty' when coupled with the reference to a deed `for all purposes', wherein it is disclosed that the grantor owns only 1/2 of 1/8 royalty, would not be construed to mean 1/4 of such 1/8 royalty.
In Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563, 565, one of the cases cited by appellants, the Supreme Court of Texas uses the following language: `Without any stipulation as to royalties the interest thus conveyed would carry with it by operation of law the right to 1/128 of the royalties paid under any lease." (Emphasis added.)
Conversely, it would follow that if there is a stipulation, then such stipulation shall control, regardless of the royalties paid under any lease.
In the present case, the reference is to the Johnson deed `for all purposes.' By virtue of such reference, appellants were required to look to the Johnson deed to determine the extent of their purchase. Such inspection would disclose that the grantor in the Hill deed did not own 1/4 of any royalty that might be payable under any future leases. It owned only a fractional 1/2 part of a 1/8 royalty, which is less than 1/4 of the royalty which, under certain circumstances, as payable under the terms of the leases to which the land is presently subject. It would be difficult to believe that the grantor in the Hill deed intended to convey and estate greater than it owned, after referring in that deed for all purposes to an instrument which disclosed the limits of its ownership. And equally difficult would it be to believe that appellants, required as they were to look to the reference deed to determine the extent of their purchase, could have thought that they were purchasing an estate greater than such reference deed disclosed that their grantor owned. To hold that such was the intention of the parties would result in a construction which plainly leads to injustice, and would produce unusual results.
In 18 C.J. at page 256, the rule is stated as follows: `Sec. 201.4. Avoidance of Injustice. Where a doubt arises as to the real intention, an interpretation which plainly leads to injustice should be rejected, and one which does not produce unusual and unjust results adopted, subject, however, to the rule that the intention is to be ascertained from the instrument.' See also, 26 C.J.S., Deeds, § 82c, p. 322.
In Jasper State Bank v. Goodrich, Tex.Civ.App., 107 S.W.2d 600, 602, the court says: "In order to ascertain the intention of the parties in respect to the property conveyed, reference may be had to the state of facts as they existed when the instrument was made and to which the parties may be presumed to have had reference."
We resolve the doubts which we expressed earlier, by adopting that construction which does not produce unusual and unjust results, and which we believe to be ascertainable from the instrument.
We disagree with appellants in their contention that the reference to the Hill deed was made for the limited purpose of describing the land, as well as with their contention elsewhere made that the reference was for the purpose of limiting the grantor's warranty. The reference was expressly `for all purposes,' which includes the grant, the royalty interest, the land and the warranty. The reference discloses that in the Johnson deed, American National Insurance Company reserved to itself 1/2 of 1/8 royalty. For the reasons hereinabove discussed, we construe the Hill deed to disclose an intention on the part of the grantor to convey, and on the part of the grantee to purchase, 1/4 of that same 1/8 royalty.
The judgment of the trial court is, accordingly, affirmed.
Exhibit A Royalty Deed (Non-Participating)
The State of Texas } Know All Men By County of Matagorda} These Presents:
That, American National Insurance Company, a Texas Corporation of Galveston, Texas
hereinafter called Grantor (whether one or more), for and in consideration of the sum of Ten ($10.00) Dollars cash in hand paid by Gillette Hill, hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver, unto the said Grantee an undivided One-Fourth (1/4) interest in and to all of the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals in and under, and that may be produced and mined from the following described lands situated in the County of Matagorda and State of Texas, to-wit:
Being 2012.92 acres of land, more of less, out of the Thomas M. Duke League, Abstract 29, Freeman George League, Abstract 40, and the Battle, Berry and Williams Survey, Abstract 3, and being the same land described in that certain deed dated February 25, 1944, from American National Insurance Company to M. G. Johnson and wife, Lillie Appelt Johnson, refrence to which deed is here made for all purposes.
together with the right of ingress and egress at all times for purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom. This grant shall run, and the rights, titles and privileges hereby granted shall extend to Grantee herein, and to Grantee's heirs, administrators, executions and assigns forever.
Said lands, or portions thereof, being now under oil and gas lease executed in favor of the Superior Oil Company it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-fourth (1/4) of all the oil royalty, and gas royalty, and casinghead gas and gasoline royalty, and royalty from other minerals or products due and to be paid under the terms of said leases. And it is further understood and agreed that notwithstanding the Grantee does not by these presents acquire any right to participate in the making of future oil and gas mining leases on the portion of said lands not at this date under lease, nor of participating in the making of future leases, should any existing or future leases for any reason become cancelled or forfeited, nor of participating in the bonus or bonuses which Grantor herein shall receive for any future lease, nor of participating in any rental to be paid for the privilege of deferring the commencement of a well under any lease, now or hereafter;
Nevertheless, neither the Grantor nor the heirs, administrators, executors and assigns of the Grantor shall make or enter into any lease or contract for the development of said land or any portion of same for oil, gas or other minerals, unless each and every such lease, contract, leases or contracts, shall provide for at least a royalty on oil of the usual one-eighth to be delivered free of cost in the pipe line, and a royalty on natural gas of one-eighth of the value of same when sold or used off the premises, or one-eighth of the net proceeds of such gas, and one-eighth of the net amount of gasoline manufactured from natural or casinghead gas; and in the event Grantor, or the heirs, administrators, executors and assigns of the Grantor, or as in the status of the fee owners of the land and minerals, or as the fee owner of any portion of said land, shall operate and develop the minerals therein, Grantee herein shall own and be entitled to receive as a free royalty hereunder, (1) An undivided one-thirty second of all the oil produced and saved from the premises delivered to Grantee's credit free of cost in the pipe line, (2) An undivided one-thirty second (1/32) interest and portion of the value or proceeds of the sales of natural gas when and while the same is used or sold off the premises, (3) An one-thirty second (1/32) of the net amount of gasoline or other products manufactured from gas or casinghead gas produced from wells situated on the premises, during the term hereof.
To Have And To Hold the above described property and rights, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Grantee, and to Grantee's heirs, administrators, executors and assigns, forever; and Grantor does hereby bind itself, administrators, executors and assigns, to warrant and forever defend by, through or under it but no further all and singular, the said property and rights unto the said Grantee, and Grantee's heirs, administrators, executors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
Witness the following signature, this the 5th day of May 1948.
American National Insurance ___________________________ (seal) Company ___________________________ By: W. L. Vogler ok ___________________________ ok Vice President W E G Attest: L. Mosele ___________________________ Secretary (acknowledgments)
General Accident Corp. v. Perry, 264 S.W.2d 198 (Tex.Civ.App. 1954) GENERAL ACCIDENT, FIRE LIFE ASSUR. CORP., Limited, et al. v. PERRY et al. No. 12646. Court of Civil Appeals of Texas, Galveston. Jan 14, 1954. Rehearing Denied Feb. 4, 1954.
Appeal from the Districe Court, Colorado County, Lester Holt, J.
Otto P. Moore, Sr., Columbus, and Fulbright, Crooker, Freeman, Bates Jaworski, Sam H. Hood, Jr., and Royce R. Till, Houston, for appellants.
Massey, Hodges, Moore Gates, W. E. Henderson and Hollis Massey, Columbus, for appellees.
HAMBLEN, Chief Justice.
This is an appeal from a judgment of the District Court of Colorado County, Texas, awarding appellees herein benefits under the Workmen's Compensation Act of the State of Texas for the death of John Henry Perry, husband and father, respectively, of the appellees. Appellees' claim to benefits was based upon the proposition that the death of John Henry Perry on May 1, 1952, occurred as a result of accidental injury sustained by him while acting in the course of his employment for Colorado County, Texas. After an adverse finding by the Industrial Accident Board appellees resorted to the District Court. The case was tried before a jury, which found that the deceased sustained an accidental injury in the course of his employment which was a producing cause of his death and that he did not die solely of natural causes. The appealed-from judgment was rendered upon such verdict.
In the trial court appellant, who was there defendant, filed a motion for instructed verdict at the colcusion of plaintiffs' case and at the conclusion of the evidence, which were overruled. After the verdict was received appellant filed a motion for judgment non obstante veredicto, which was likewise overruled. All of such motions were grounded upon the proposition that there was no evidence, or that the evidence was insufficient, to show that the deceased sustained an accidental injury which was a producing cause of his death.
On this appeal appellant complains of the action of the trial court in so overruling said motions in seven of its eleven asserted points of error. The remaining four points presented by appellant are directed to the form of the hypothetical question propounded to medical witnesses offered by appellees and to the failure of the trial court to submit certain requested defensive issues. This Court is of the opinion that the appellant is correct in its first seven points of error and that all of such points should be sustained for reasons which will be discussed. Since the case was fully developed in the trial court and since our conclusion as to such points, if correct, requires a reversal of the case and rendition of judgment for appellant, it becomes unnecessary to pass upon the error asserted by appellants' points 8 to 11, inclusive.
The following facts which are undisputed are necessary to our discussion: John Henry Perry, deceased, at the time of his death was 59 years of age and was employed by the Commissioners of Colorado County as a member of a road maintenance crew and had been so employed for about five years. His principal duties involved the building and repairing of fences and the operation of a John Deere Tractor to which was attached a sickle-type mowing blade. On the day of his death the deceased went to work at the usual morning hour and was apparently well and feeling good at that time. He made no complaints to either his wife or to anyone who saw him at the time he commenced work. At approximately 1:00 p. m. on the day in question the deceased stopped and talked with Mr. J. E. McDonald. He appeared to be normal at that time. As he left Mr. McDonald he lighted a cigarette and made reference to a cloud that was gathering and said he would have to hurry to get through and come back and get into Eagle Lake. Before making this remark he had put up the umbrella on the tractor that shaded him from the sun. Mr. McDonald saw the deceased about thirty minutes later operating the mower on one of the roads. At approximately 3:00 p. m., or approximately two hours after having talked with the deceased, Mr. McDonald testified that he saw the deceased walking toward an intersection of two roads, which corner is about 200 to 250 feet from where Mr. McDonald lived. At this time the deceased was walking down Adkins Road toward its intersection with Chesterfield Road about 100 to 150 feet from such intersection. Mr. McDonald observed the deceased as he walked the 100 to 150 feet and observed that when he reached the intersection he looked in each direction, up and down Chesterfield Road, and that he reached into his left-hand shirt pocket and secured his tobacco and rolled a cigarette. The deceased, according to Mr. McDonald, appeared to be normal in every respect at the time he observed him walking, and he was walking at a normal gait.
Approximately ten minutes later the witness McDonald was notified that Mr. Perry was dead at the intersection. He went to the intersection and observed that there was no apparent evidence of violence having been done to the deceased; that there was no evidence of a struggle; that about two-thirds of the cigarette which he saw Mr. Perry light had been smoked, and that the match with which it was apparently lighted was on the ground nearby; that Mr. Perry's glasses were still on and that his hat was folded under his head on the ground; that there was no mud on Mr. Perry's clothes or on his shoes and no perspiration or sweat on his face or clothing. Mr. McDonald testified that it was a warm day and that he would guess that the temperature was about 80 ° .
The tractor which the deceased had been operating was found approximately one mile north of the point where he died, on Adkins Road. The two right wheels had apparently slid into a shallow ditch about a foot deep and the rear axle housing was grounded on the shoulder of the road. The tractor appeared to have been moved backward and forward for a distance of about 18 inches and had slid about a foot toward the ditch. The end of the cutting blade was next to a fence post. The unbrella on the tractor was raised.
The witness, J. O. Walker, Sheriff of Colorado County, testified that when he arrived at the point where the tractor was, in the afternoon, someone had stepped on the weeds or glass near the end of the cutting blade. He did not recall whether he had sent someone down to check the tractor before he went there or not. There were no pry-poles about the tractor.
The witness, Glenn Kveton, County Commissioner, under whom the deceasd worked, testified that he went to the tractor the following morning but sent two of his men to check on it the afternoon of Mr. Perry's death. There was evidence that a tractor, the wheels of which were mired, would be more difficult to turn than one not mired.
No autopsy was performed upon the deceased. Two medical witnesses testified that in reasonable probability the deceased died as a result of coronary occlusion, commonly called a heart attack, or of cerebral hemorrhage. These opinions were expressed in response to hypothetical questions propounded to the witnesses by appellees, which questions contained the assumptions that the deceased was driving the tractor at the time it became mired, that he had undertaken unsuccessfully to get the tractor out of the ditch by driving backward and forward and that he had thereafter walked the distance of approximately one mile from the tractor to the point where he was found dead. The medical witnesses then expressed the opinion that the coronary occlusion or, alternatively, the cerebral hemorrhage, which in their opinion had most probably caused the deceased's death, had been produced by overexertion by the deceased in the course of performing the acts assumed in the hypothetical question.
In appellants' points of error wherein complaint is made of such hypothetical questions the contention is made and supported by foreful and analytical argument that the question contained facts and assumptions not supported by the evidence. We have said that it is unnecessary to pass upon the error thus asserted. This for the reason that upon cross-examination both medical witnesses testified that in addition to the facts assumed in such questions, their opinion was based upon the following additional assumptions on their part: That the deceased became exasperated or angry as the result of his tractor becoming mired; that the deceased made strenuous efforts and exerted himself in endeavoring to remove the tractor; that the deceased was in a hurry and that his walking from the point where the tractor was stuck to the point where he died was unusual activity for the deceased. The witnesses further stated that without one or more of such additional assumptions they would be unable to express the opinion that the coronary occlusion or cerebral hemorrhage was caused by the facts stated in the original hypotheses. Thus, even if it be conceded that the facts assumed in the hyopothetical question were permissible inferences to be drawn from the facts and circumstances which the probative evidence does support, it becomes apparent that the additional assumptions necessary to the establishment of a causal connection between proven fact or permissible inference and the death of the deceased can be reached only by piling presumption upon presumption and drawing inference from inference.
In 17 Tex.Jur. 247, it is said, 'Inferences can never be made to subserve the primary function of evidence, and no inference of fact should be drawn from an uncertain premise. The fact or facts relied on to support a presumption or inference must be proved by direct evidence the same as if they were in issue. A presumption of fact cannot rest upon a fact presumed, or, in other words, one presumption cannot be based upon another presumption, nor an inference of fact upon other inferences."
We have carefully examined the statement of facts presented with this record and can find therein no evidence, circumstantial or otherwise, justifying the additional assumptions which the medical witnesses described as necessary to their medical opinions. From our review of the testimony, such additional circumstances constitute nothing more than surmise and speculation and violate the principle of law above quoted prohibiting the piling of presumption upon presumption and drawing inferences from inferences.
None of the authorities cited by the litigants in their briefs are identical factually to the case here considered. The authorities have been carefully examined and it is the opinion of this Court that the rules of law which are applicable and controlling are set forth in the following cases: Southern Casualty Co. v. Flores, Tex.Com.App., 1 S.W.2d 260; Texas Employers' Ins. Ass'n v. Young, Tes.Civ.App., 231 S.W.2d 483; Houston Fire Casualty Ins. Co. v. Biber, Tex.Civ.App., 146 S.W.2d 442; and in Gorman v. American General Ins. Co., Tex.Civ.App., 179 S.W.2d 814.
On useful purpose would be served by reviewing the authorities cited by appellees. They are distinguishable from the instant case in that in each there existed direct probative evidence of exertion or strain, based upon which, standing alone, medical witnesses were able to express an opinion as to the cause of death or injury. Such evidence is not present here. On the contrary, while we consider it unnecessary to the decision of this case, the only evidence bearing upon the situation negatives the assumptions which the medical witnesses stated were necessary to their conclusions as to the producing cause of death. Mrs. Rosalie Perry, wife of the deceased, testified that her husband was a man of even temper, not excitable, that he had stuck his tractor on other occasions and that it did not excite or irritate him. She further testified that the deceased was accustomed to frequent long walks while hunting, which had produced no complaints or apparent ill-effects. The assumption that the deceased was in a hurry immediately prior to his death cannot, we feel, be inferred from his statement to the witness McDonald made some two hours earlier. Particularly is this true in view of the compelling testimony to the effect that only ten or fifteen minutes prior to his death, appellees' same witness observed the deceased walking at a normal gait, pausing to roll a cigarette, and that immediately after death an examination disclosed no evidence of perspiration or sweating. When interrogated as to the hypotheses which such testimony justifies, appellees' medical witnesses stated in effect that it was equally probable that the activities of the deceased, upon which their original opinion was based, were not causally connected with his death.
In Perren v. Baker Hotel of Dallas, Tex.Civ.App., 228 S.W.2d 311, 317, the court uses the following language, which is particularly applicable here: `Where circumstances are equally consistent with the existence and nonexistence of an ultimate fact sought to be established, such circumstances are wanting in probative force as any evidence tending to establish the existence of the ultimate fact."
In our opinion the competent admissible evidence introduced upon the trial, when viewed in its entirety in the light most favorable to the contentions of appellees, was wholly lacking in probative force to serve as the basis for a fact finding that the deceased sustained an accidental injury which was a producing cause of his death. For that reason, we feel that the trial court should have granted the motion for an instructed verdict presented by appellant and that the failure to grant same was error, necessitating a reversal of the case.
Reversed and rendered.