joined Justice Smedley, dissenting.
I dissent from that portion of the majority opinion dealing with the amount of damages awarded the respondents and from *577that portion of the judgment reforming the judgment of the trial court.
The majority holds that both of the respondents, Combs the landlord and Harrison the tenant, have recovered double damages; and, based upon the holding that “we can determine exactly the amount of double recovery for each of the respondents,” proceeds to reform the trial court’s judgment by eliminating the sum of $28,568.80 from the judgment running in favor of Harrison and the sum of $2,787.20 from the judgment running in favor of Combs. These items of recovery represent the pecuniary loss found by the Court and the jury to have been sustained by the respondents from damage to their 1949 rice crop. The theory on which the items are eliminated is that they are included in other items of damages awarded the respondents.
An analysis of the record will reflect that the judgment actually decrees a double rcovery only if the jury actually awarded 1949 crop damage to Harrison in answer to special issue No. 14 and to Combs in answer to special issue No. 16. I submit that we do not and at this stage of the proceedings cannot know that the jury did, in fact, include 1949 crop damage in its answers to those issues. I submit further that it is only by the wildest stretch of the judicial imagination that the precise amount of 1949 crop damage, if any, included in the jury’s answers to issues Nos. 14 and 16 can be determined.
It seems to me that the majority misconceives the nature of the error we are called upon to consider. The error here, if there be any, lies not in the fact that the judgment decrees a double recovery but in the fact that it may do so. Inasmuch as 1949 crop damage was to be determined by answers to other issues it was error for the court to word or phrase issues 14 and 16 so that the jury’s answers to those issues could award the same damage again. Our first task then is to examine issues 14 and 16 to see if, fairly interpreted, they permitted answers that would include such damage. Unless they did, there was no error in the charge and we need pursue the inquiry no further. We first consider issue No. 16 dealing with Combs’ damages.
The holding of the majority that the jury’s answer of $13, 600.00 to issue No. 16 includes 1949 crop damage treats issues Nos. 15 and 16 as though they inquire whether Combs has lost anything under his lease to Harrison and the amount of the loss. If such was in fact the nature of the inquiry I would agree *578that the jury could have included 1949 crop damage in their answer to issue No. 16. But such is not the nature of the inquiry. Issues Nos. 15 and 16 have nothing to do with the lease to Harrison or the losses already sustained or thereafter to be sustained by Combs under that lease. By issue No. 15 the jury is asked whether Combs’ land will rent for less than it would have rented for but for petitioner’s wrongs, and by issue No. 16, how much less. It is well established by the decisions of this Court that a landowner whose land is injured and whose crop thereon is destroyed by the negligent acts of another may recover both the diminished value of the land and the value of the crop. Gulf, C. & S. F. Ry. Co. v. Helsley, 62 Texas 593, 596; International & G. N. Ry. Co. v. Pape, 73 Texas 501, 11 S.W. 526; City of Amarillo v. Ware, 120 Texas 456, 40 S.W. 2d 57; Lone Star Gas Co. v. Hutton, Tex. Com. App., 58 S.W. 2d 19. The majority opinion fails utterly to assign any reason why a landowner may recover the diminished market value of his land and the value of a lost crop but may not recover the diminished rental value of his land and the value of a lost crop. I can think of no sound basis for saying that the latter involves a double recovery while the former does not. I cannot agree that issue No. 16 was so worded as to lead the jury to include 1949 crop damage in their answer thereto. There being no such error we should not pursue the inquiry further.
With respect to the respondent Harrison it is held that 1949 crop damage is included in the trial court’s judgment decreeing to him a recovery of $49,160.00, found by the jury in answer to special issue No. 14 to be the amount by which “the value of the use” of his “leasehold interest” in the land was reduced. I agree that the wording of issue No. 14 was such as to authorize the jury to include 1949 crop damage in their answer thereto. But the fact that the issue and the charge may have been erroneous to this extent does not require the conclusion that the jury did award crop damage in its answer to the issue or compel the subtraction of $28,568.80 from Harrison’s recovery.
It is my opinion that as to Harrison’s recovery of damages the judgment presents a situation to which the provisions of Rule 503, Texas Rules of Civil Procedure, are applicable. It is there directed that we shall not reverse a judgment for errors of law committed in the course of the trial unless we are of the opinion that the error complained of “was reasonably cal*579culated to cause and probably did cause the rendition of an improper judgment in the case.”
For the purpose of this discussion we may assume that it was error to so word issue No. 16 as to permit the jury to include 1949 crop damage in their answer thereto when that specific item of damage was being determined separately by answers to other issues. Since the issue was so worded as to permit the jury to include 1949 crop damage in their answer thereto, we may assume also that the error was “reasonably calculated” to cause the entry of a judgment awarding to Harrison double damages — an improper judgment. But the provisions of the rule direct that we must not stop our analysis at this point and order a reversal on what we thus far have concluded. We must go further before ordering a reversal and find from an examination of the whole record (see Cole v. Waite, 151 Texas 175, 246 S.W. 2d 849; City of Galveston v. Hill, 151 Texas 139, 246 S.W. 2d 860; Dallas Ry. & Term. Co. v. Bailey, 151 Texas 359, 250 S.W. 2d 379) that the error “probably did cause” the rendition of a judgment decreeing a double recovery. Moreover, the burden is on petitioners to satisfy us that the jury’s answer to issue No. 14 probably included 1949 crop damage. Texas P. & L. Co. v. Hering, 148 Texas 350, 224 S. W. 2d 191; City of Galveston v. Hill, supra.
The only support the majority offers for its conclusion that the jury’s answer to issue No. 14 probably did include 1949 crop damage is that the issue was so worded that it could have been included. The majority then says that “by the wording of the issue the jury were affirmatively instructed to include all damage done in their answers sought” and concludes that the answer to issue No. 14 therefore “must of necessity” include 1949 crop damage. Aside from the fact that I am unable by diligent search to find in the court’s charge any such affirmative instruction as that mentioned by the majority, the jury certainly was not instructed to include all damages done to Harrison in its answer sought to issue No. 14. By the giving of separate issues dealing with 1949 crop damage the jury was at least impliedly instructed to segregate this item of damage. I do not regard the fact that the issue was so worded that crop damage could have been included as sufficient proof that it probably was included.
My own examination of the record reflects the following pertinent facts: By the petition upon which he went to trial Harrison pleaded specially “that by reason of the loss of 5,076.4 *580barrels of rice and the damage to 2,200 barrels of rice” in 1949 he was damaged in the sum of $34,179.31. By separate paragraph he pleaded that the value of his leasehold estate which had a fair and reasonable value of not less than $75,000.00 for rice farming purposes had been totally destroyed to his damage in the sum of $75,000.00 and alternatively that he had been deprived of his right to the use, possession and enjoyment of his leasehold estate to his damage in the sum of $75,000.00. In his prayer he sought a recovery of $109,179.31, the sum of the two items. So it appears that by the pleading the jury was advised that the two items of damages sought were separate items, neither of which was included in the other. In answer to a question as to his opinion of the fair and reasonable value of his leasehold estate prior to the time the damage occurred “exclusive of the rice crop you, had in 1919” Harrison testified that it was conservatively at least $75,000.00 and that its value after the damage was $4,000.00. Thus by the evidence the jury was advised of a loss in value of the leasehold estate of $71,000.00 exclusive of the 1949 crop damage. In addition there was detailed testimony with reference to the damage and loss in the 1949 crop. The issues submitted did not permit the jury to make a finding of the total damage suffered by Harrison because of the loss of his 1949 crop. In answer to issues 10, 11 and 12 the jury found that but for the injury thereto the land would have made 21 barrels of rice per acre, that the cost of raising, harvesting and selling the rice was $1.25 per barrel and that the rice would have sold for $10.00 per barrel. Based upon these answers and upon stipulations of the parties of the number of acres planted to rice, the number of barrels actually harvested and sold, and the amount received therefor the court awarded Harrison judgment for the sum of $28,568.80, this sum representing Harrison’s 41/60th interest in the total loss. It hardly seems likely that the jury included this item, arrived at only by the judge by a somewhat involved arithmetical process, in its answer to issue No. 14.
Consideration of the record leads to these further conclusions: If $28,568.80 of the $49,160.00 item is allocated to crop damage according to the holding of the majority, only $20,591.20 is left to be allocated to damage to the remainder of the eleven-year leasehold estate although all the pleadings and evidence were to the effect that the damage to the remainder of the leasehold estate was much greater than the 1949 crop damage. To allocate $28,568.80 to 1949 crop damage would also result in an award to the tenant as damages to his leasehold estate of only *581one and one-half times as much as was awarded to the landlord for the diminished rental value of the land, although the award to the tenant for 1949 crop damage was more than ten times as great as the crop damage awarded to the landlord, and although his interest in the crops to be grown in the ensuing ten year period was ten times as great as the interest of the landlord.
To my mind the foregoing facts shown by the record demonstrate almost conclusively that the jury did not include 1949 crop damage in its answer to issue No. 14. It follows that we should not say that it probably did include it. It then follows that we should not say that the error in the wording of issue No. 14 probably resulted in the rendition of an improper judgment.
It is no answer to say that the provisions of Rule 508 do not apply when we reform and affirm a trial court’s judgment. The effect of our judgment is to reverse an important part of the judgment of the courts below because of an error which it is not shown probably resulted in an improper judgment. This is the result the rule was intended to prevent. In my opinion the judgments of the trial court and Court of Civil Appeals should be affirmed.
Mr. Associate Justice Smedley joins in this opinion.
Opinion delivered October 22, 1952.
Rehearing overruled December 3, 1952.