Pabst v. Roxana Petroleum Corporation

• Court: Texas Supreme Court
• Writing for the Court: German
• Citation: Pabst v. Roxana Petroleum Corporation, 80 S.W.2d 956, 125 Tex. 52 (Tex. 1935)
• Decision Date: 03 April 1935
• Docket Number: No. 1825-6309.,1825-6309.
• Parties: PABST et al. v. ROXANA PETROLEUM CORPORATION et al.

80 S.W.2d 956

PABST et al. v. ROXANA PETROLEUM CORPORATION et al.

No. 1825-6309.

Commission of Appeals of Texas, Section A.

April 3, 1935.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Fred C. Pabst and others against the Roxana Petroleum Corporation and another. Decree dismissing suit on demurrer was affirmed by the Court of Civil Appeals [51 S.W.(2d) 802], and plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed.

Stewarts, Maco Stewart, Harris & Watkins and Jules Damiani, all of Galveston, and Stewart & De Lange, of Houston, for plaintiffs in error.

Terry, Cavin & Mills and Ballinger Mills, all of Galveston, Lewis Jeffrey, of Fort Worth, Thompson, Mitchell, Thompson & Young, T. P. Young, and Claude P. Berry, all of St. Louis, Mo., John M. Corbett, of Bay City, and Cyrus S. Gentry, of St. Louis, Mo., for defendants in error.

GERMAN, Commissioner.

Fred C. Pabst and others, herein referred to as plaintiffs, brought this suit in the district court of Galveston county against Roxana Petroleum Corporation and the Texas Gulf Sulphur Company, herein designated defendants, to recover damages. The case went to trial on the third amended original petition. This petition comprises 33 pages of the transcript, exclusive of its exhibits. The defendants presented a formal general demurrer to the petition, and a demurrer, general in its nature, to the effect that the petition had commingled a supposed cause of action for an alleged breach of contract and a supposed cause of action for an alleged tort, and it was impossible to determine from the petition whether plaintiffs were suing upon contract or tort. These general demurrers were sustained by the trial court, and the plaintiffs refused to amend. The Court of Civil Appeals affirmed the judgment of the trial court, Judge Graves dissenting. 51 S.W. (2d) 802, 806.

It would make this opinion unreasonably long to even undertake to state in outline the substance of plaintiffs' petition. In view of the fact that most if not all of the substantial portions of same have been incorporated into the opinions by the Court of Civil Appeals, it is unnecessary to reproduce same here.

It will be observed that the Court of Civil Appeals, in effect, held that the petition was fatally defective because in violation of article 1997 of the Revised Statutes, which provides that a pleading shall "consist of a statement in logical and legal form of the facts constituting the plaintiff's cause of action"; and because in violation of article 2003, which requires a petition to contain, among other things, "a concise statement of the cause of action." In the majority opinion of the Court of Civil Appeals it is said: "Its numerous paragraphs are so confused, contradictory, and inconsistent, and so interspersed with argument of counsel and pleadings of evidence as to destroy it as a petition consisting of a statement in logical form of facts constituting any definite cause of action. It is by no means a logical statement of any definite statement of facts constituting a cause of action. We are unable to ascertain from the petition, with any degree of certainty, upon what facts plaintiffs base their demand or demands for a recovery, and we have no doubt that the trial court was as much at a loss to discover such facts as we are. We think it fair to state that the petition may reasonably be construed as one attempting to present a suit in equity, an action at law for breach of contract, an action to enforce specific performance of contract, or an action for tort, without any alternative allegations. Averments undertaking to set up a cause of action should be certain and positive, and not left to argument or inference."

The court, however, goes further and holds that if plaintiffs' petition be treated as one attempting to allege an action for damages because of a conspiracy, it is fatally defective for several reasons. In his dissenting opinion Judge Graves does not disagree with the majority of the court on the proposition that the petition was not sufficient to charge a conspiracy, but does dissent on the ground that if all irrelevant, extraneous, and argumentative language of the petition be disregarded, there are enough allegations left (though considerably disjointed) from which there may be extracted an alleged cause of action for failure to reasonably develop the land for sulphur, with consequent damages to some extent, though the extent of the damages be not definitely alleged.

On motion for rehearing, Chief Justice Pleasants demonstrates, according to our view, that if it be conceded that the petition sought to allege such a cause of action, it fails to show any damages, and is therefore insufficient as a basis for a cause of action upon that theory. For that reason, and for the further reason that we have concluded that plaintiffs had no intention of pleading a cause of action for failure to reasonably develop the land for sulphur under the lease, it is unnecessary to consider the petition further from that standpoint.

The fact, however, that the majority of the Court of Civil Appeals was unable to determine just what particular cause of action plaintiffs intended to assert, whether for damages on account of an alleged conspiracy, for specific performance, or for failure to reasonably develop the land for sulphur under the lease, and the fact that the dissenting judge was able, after sifting the pleading and correlating isolated and disjointed allegations, to extract only an alleged cause of action for failure to reasonably develop the land; and the further fact that we have reached the conclusion that plaintiffs did not primarily intend to assert a cause of action on the theory of failure to reasonably develop, but attempted to allege only a cause of action predicated on a conspiracy—all show the inadequacy of the petition to "state the cause of action with such a reasonable degree of certainty as would give full notice to the defendants of the character of the claim or demand made against them, so as to enable them to make their defense."

Plaintiffs, however, in effect assert that if the petition contained allegations of fact sufficient to furnish the essential elements of a cause of action, although stated in a confused, illogical, and argumentative manner, nevertheless the complaints urged against it went only to form rather than substance, and could not be set up by a general demurrer alone. They invoke the rule that as against a general demurrer "if upon a fair, reasonable construction, giving to all ambiguities the reasonable interpretation most favorable to the pleading, there appears in it sufficient facts to show a legal right in the pleader, the general demurrer should be overruled." But the trouble here is manifestly not a lack of allegations, nor altogether a meagerness of essential allegations, but a superabundance of doubtful allegations. In such a case, even as against a general demurrer, all doubtful pleadings must be construed against the pleader. Webb County v. Board of School Trustees, 95 Tex. 131, 136, 65 S. W. 878. The complaint here goes beyond form to the substance of the pleading. In Missouri the statutory requirements are almost identically the same as ours, and in the case of Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342, 63 S. W. 705, 714, the Supreme Court of that state very aptly put the rule which we think applicable here in this language: "And notwithstanding our statute (section 629) requires pleadings to be liberally construed, etc., this only extends to the form of the pleadings, and does not apply to the fundamental requirements of a good pleading; and the pleader is not allowed now, any more than formerly, by inserting doubtful or uncertain allegations in a pleading, to throw upon his adversary the hazard of correctly interpreting its meaning."

However, without basing our opinion on this theory alone, we have carefully and diligently considered the pleading in the case, the brief of the plaintiffs...