Leonard v. Texaco, Inc.

• Decision Date: 14 June 1967
• Docket Number: No. B--87,B--87
• Citation: 422 S.W.2d 160
• Parties: O. P. LEONARD, Petitioner, v. TEXACO, INC., Respondent.
• Court: Texas Supreme Court

Page 160

422 S.W.2d 160

O. P. LEONARD, Petitioner, v.TEXACO, INC., Respondent.

No. B--87.

Supreme Court of Texas.

June 14, 1967.

Rehearing Denied Oct. 4, 1967.

R. E. Swift, Palestine, Garrett & Stahala, Robert Stahala, Fort Worth, for petitioner.

Bob Reeves, Palestine, William S. Clarke, Houston, for respondent.

NORVELL, Justice.

This case involves a limitation problem.The action is one for damages by a surface owner against the mineral lessee allegedly growing out of seismic operations on the lease.Texaco, Inc., defendant in the trial court and respondent here, contends that the action was barred by the two year statute of limitations.Article 5526¹ reads in part as follows:

'There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

'1.Actions of trespass for injury done to the estate or the property of another. * * *'

O. P. Leonard, the plaintiff in the trial court and petitioner here, takes the position that the statute was tolled for a few days by agreement of the parties so that his petition was filed within the prescribed statutory period and that a subsequent amendment of the petition was embraced by Article 5539b which provides:

'Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence.Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opposite party, the court may postpone or continue the case as Justice may require.'

The trial court gave judgment for plaintiff but the Court of Civil Appeals reversed upon a holding that the amendment to Leonard's petition did not come within the provisions of said Article 5539b. 409 S.W.2d 901.We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

Leonard, the surface owner of approximately 12,000 acres of land in Anderson County, Texas, sued Texaco, the holder of an oil, gas and mineral lease covering the tract, claiming that his cattle, fences, roads and road crossing had been injured or damaged by Texaco's seismic operations.Such damages were alleged to have been suffered in the year 1959, and Leonard filed suit on July 6, 1961.The Court of Civil Appeals held that the cause of action alleged in his original petition was not barred by the two year statute of limitations.We agree with this holding.(Texaco asserts that this holding is erroneous and such contention will be discussed by us in reviewing the points of error contained in Texaco's brief in the Court of Civil Appeals.)That court, however, held that as the original petition set up a claim in tort and the subsequent amendments thereto filed in 1964 and 1965 asserted a claim in contract, Article 5539b did not operate to save the cause of action based upon contract from the bar of the two year statute.

Leonard's original petition asserted that Texaco had made an excessive and unreasonable use of the surface estate in conducting its seismic operations.By a 1964amendment and a trial amendment thereto filed on March 8, 1965, Leonard retained the charge that Texaco had made an unreasonable and excessive use of the surface but also alleged that Texaco had contracted and agreed to pay all damages resulting to the surface as a result of its exploratory operations.The case was submitted upon the contract theory of liability and the jury found that prior to the time Texaco began its seismic operations, it agreed with Leonard to pay all damages to his property that might be caused by such operations and that Leonard had been damaged in a number of particulars aggregating the sum of $3,998.00.

The holding of the Court of Civil Appeals that the contract action asserted by Leonard in his trial pleadings was barred by limitation is based upon the circumstance that while the original petition sounded in tort,--unreasonable and unnecessary use, the amended petition was based upon an agreement to pay damages.In other words, the Court of Civil Appeals followed the 'cause of action' concept in applying Article 5539b to this case and concluded that although a cause of action in tort had been declared upon within the statutory limitation period, this would not save from the bar of limitations a cause of action based on contract which was first pleaded long after two years had expired from the date the damages were allegedly sustained.

The Court of Civil Appeals relied primarily upon Hopper v. Hargrove, 154 S.W.2d 978(Tex.Civ.App.1941, writ ref'd), which followed Phoenix Lumber Company v. Houston Water Company, 94 Tex. 456, 61 S.W. 707(1901), a case decided before 1931 when Article 5539b was adopted.See, Acts 1931, 42nd Leg., p. 194, ch. 115.In Hopper, it appeared that the plaintiff by an amended petition sought recovery of a tract of land not mentioned in her previous petitions.The Court of Civil Appeals held that Article 5539b did not operate to avoid the bar of limitation.While the holding might be justified upon other grounds, the opinion cited the Phoenix Lumber Company case and stated that it was 'clear that the third amended original petition declares upon a New cause of action in so far as the land in controversy is concerned.'(Emphasis added.)

In Global Corporation v. Vincent, 156 Tex. 398, 295 S.W.2d 640(1956), this Court quoted with approval the following from Texas Pacific Coal & Oil Co. v. Smith, 130 S.W.2d 425(Tex.Civ.App.1939, writ dis'm judgm. cor.):

'Unless the cause of action alleged in an amended pleading involves a different transaction from that in the original pleading, the latter having declared upon a cause of action not then barred, it is immaterial that the cause of action alleged in the amended pleading be different from the cause of action originally alleged.The test which Vernon'sAnn.Civ.St. art. 5539b makes proper is whether or not the cause of action alleged in the amended pleading be 'wholly based upon and grows out of a new, distinct or different transaction and occurrence.'Farmers & Merchants Nat. Bank v. Arrington, Tex.Civ.App., 98 S.W.2d 378, 379;Universal Life & Accident Ins. Co. v. Johnson, Tex.Civ.App., 120 S.W.2d 314.'

The emergency clause of the 1931 act referred to 'the importance of simplifying Court procedure' and evinced an intention to effect some change in the law as it theretofore existed.

In Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816(1950), we said:

'The obvious purpose of Article 5539b was to limit the application of the statutes of limitations to amended pleadings.It was evidently intended to modify the previously existing rule for determining whether limitation should apply to an amended pleading, as first announced in Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707.* * * Article 5539b expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new, distinct or different transaction or occurrence.'

See also, First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16(1939);City of Houston v. Magness, 364 S.W.2d 702(Tex.Civ.App.1963, writ ref'd).

The test under Article 5539bas amended in 1931 is no longer based upon a difference in causes of action declared upon in the original and amended petitions and the expressions contained in Hopper v. Hargrove, supra, indicating the contrary must be disapproved.The test is whether the cause of action alleged in the amended petition is 'wholly based upon and grows out of a new, distinct or different transaction and occurrence.'

In this particular case, while the original petition sounded in tort and alleged an excessive use of the land, and the amended petition set up a promise to pay such damages as Texaco might cause to the surface estate through its seismic operations, it cannot be said that a petition setting up the agreement to pay stated a cause of action wholly based upon and growing out of a different transaction or occurrence.In fact, the difference in the tort and contract actions in the present case would have little practical effect so far as trial preparation is concerned.

When Texaco notified Leonard that it intended to conduct exploratory operations, Leonard protested that the land was wet--'just as wet as a frog,' due to recent rains.He wanted Texaco to stay all the premises until they dried up.'I didn't want them in there tearing up the country with that heavy equipment they use for seismographing.'Discussions were had in regard to paying Leonard $1,000.00 for surface damage, which which he refused, and One Dollar per acre, which Texaco refused.Finally, according to Leonard, a Texaco representative stated that they were going ahead with their seismic operations but would pay Leonard for damages to the surface.This agreement was later partially confirmed by letter.The seismic operations undertaken by Texaco over the protests of Leonard based upon the wetness of the ground and consequent greater damage to the premises was the transaction or occurrence out of which grew both the claim in tort and the claim in contract.

We hold that as the original cause of action declared upon in the original petition filed on July 6, 1961 was not barred by the two year statute, the cause of action alleged in the amended petition filed in 1964 and the trial amendment thereto, was not barred by the two year stat...