author: WILLIAMS, Justice.

text:
    AMERICAN SPIRITUALIST ASS’N, a Corporation, Appellant, v. The CITY OF DALLAS, Texas, et al., Appellees.
    No. 16148.
    Court of Civil Appeals of Texas. Dallas.
    March 15, 1963.
    Rehearing Denied April 5, 1963.

      Harold C. Abramson, Dallas, for appellant.
    H. P. Kucera, City Atty., Ted P. Mac-Master and Max E. Noller, Assts. City Atty., and Vactor H. Stanford, Dallas, for appellees.
   WILLIAMS, Justice.

American Spiritualist Association filed this suit against City of Dallas and Dave Ravkind, the action being in the nature of a Bill of Review seeking to set aside and hold void a default judgment, together with a Sheriff’s sale, and a deed issued pursuant thereto, in cause No. 35865/F styled City of Dallas v. American Spiritualist Association, a corporation, which was a tax foreclosure suit. The present action also requests the removal of a cloud from the title to the real property involved. As grounds for the Bill of Review plaintiff alleged that it had not been legally served with citation, due to misnomer of the corporation, and further that there had been a misdescription of the property which would render the judgment and Sheriff’s deed void “and/or” voidable. As a part of its Bill of Review application plaintiff said “it has good grounds of defense and has not been negligent and has not lacked diligence in the premises.”

James O. Calvin, d/b/a Mid-West Meat Company, intervened in the suit, contending that he was the present owner of the property in controversy by virtue of a Sheriff’s deed growing out of a suit against Dave Ravkind, and others.

The District Court, following a non-jury trial, found against the plaintiff on all issues and rendered judgment denying any relief. From that judgment appellant appeals, contending in three points of error that (1) the trial court erred in denying appellant relief for the reason that the entire proceedings in the suit of City of Dallas v. American Spiritualist Association was void as a matter of law, or in the alternative, voidable by the direct attack of appellant; (2) that the intervener is not a proper party to this proceeding; and (3) the trial court erred in not entering judgment removing cloud from title of appellant to the real estate involved. Upon careful consideration of these points we find the same to be lacking in merit and the same are overruled and the judgment of the trial court is affirmed.

At the outset we observe that no request was made for findings of fact and conclusions of law and none were filed by the trial court. Therefore the trial court’s judgment implies all necessary fact findings in support thereof. In our review wherein we seek to determine if there is any evidence to support the judgment and the implied findings of fact incident thereto “it is proper to consider only that evidence favorable to the issue and to disregard entirely that which is opposed to it, or contradictory in its nature.”

Austin v. Cochran, (Tex.Com.App.) 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex, 502, 171 S.W. 696; Renfro Drug Co. v. Lewis, (Sup.) 149 Tex. 507, 235 S.W. 2d 609, 23 A.L.R.2d 1114.

We must first ascertain the exact nature of the attack made by appellant on the prior judgment. Appellant, in its brief says that this suit is brought as “a direct and/or a collateral attack upon the judgment and proceedings generally in cause No. 35865/F, in the 116th Judicial District Court of Dallas County, Texas, styled City of Dallas v. American Spiritualist Association.” The attack must be either direct or collateral. The rule which we follow in deciding the nature of the attack on the judgment in question was announced by the Supreme Court in Brown v. Clippenger, 113 Tex. 364, 256 S.W. 254, in which the Court held that where a judgment recites facts sustaining the court’s jurisdiction rendering the same, it is not subject to collateral attack and an action to set aside a judgment, which is not void on its face was insufficient as a matter of law. In the case of Gehret v. Hetkes, (Tex.Com.App.) 36 S.W.2d 700 in an opinion adopted by the Supreme Court, it was held that a judgment was void only if the record discloses want of jurisdiction by the court which rendered such judgment, otherwise, the judgment is merely voidable and can be attacked only in a direct proceeding. The Court said, in part:

“Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. If the record discloses that the court rendering such judgment was without jurisdiction, the same is void and open to attack in a collateral proceeding; if it does not, the judgment is merely voidable and can be attacked only in a direct proceeding. Morris v. Halbert, 36 Tex. 19; Maury v. Turner (Tex.Com.App.) 244 S.W. 809; Ringgold v. Graham (Tex.Com.App.) 13 S. W.(2d) 355.”

We have carefully reviewed the judgment in cause No. 35865/F of the 116th District Court, styled City of Dallas v. American Spiritualist Association and find nothing on the face of that record to show that the court did not have jurisdiction. Such judgment contains all of the plain jurisdictional recitals which must be accorded absolute verity. Accordingly, such judgment is not subject to collateral attack. Wixom v. Bowers, Tex.Civ.App., 152 S.W.2d 896; Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865; Chapman v. Kellogg (Tex.Com.App.) 252 S.W. 151.

Since this must, of necessity, constitute a direct attack upon the judgment previously rendered by the 116th District Court in City of Dallas v. American Spiritualist Association, and since such direct attack is made by a petition in the nature of a Bill of Review, we must now determine the sufficiency of such effort on the part of appellant.

A Bill of Review, or a petition in the nature of a Bill of Review, is a proceeding in equity having for its purpose the reversal of a prior judgment of the trial court. 22 Tex.Jur.2d 569, § 28. One of the prime essentials of a proceeding of this nature to have a judgment set aside by Bill of Review is that it must be shown that there existed a meritorious defense to the cause of action; that the complainant was prevented from presenting that defense through extrinsic fraud, accident, or mistake wholly unmixed with any fault or negligence of his own, so that he was compelled to suffer the judgment by circumstances beyond his control; that he has not been guilty of a lack of diligence in failing to avail himself of any means to set the judgment aside, and that no other remedy is available. 22 Tex.Jur.2d 572, § 30. The Supreme Court in the recent case of McEwen v. Harrison, 345 S.W.2d 706, held that in a Bill of Review proceeding the plaintiff must allege and prove that he was not negligent and that he had a meritorious defense as to the suit, the court saying, in part:

“In a bill of review proceeding the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit. Our decisions require that the two issues be tried together so that the court may render a new final judgment. (Citing cases).”

The Supreme Court in the now familiar case of Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 announced the rule, as follows:

"Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, err. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted ’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.”

We have carefully examined the entire record in this case and find that although appellant did, in its petition allege, in general terms that “it has good grounds of defense and has not been negligent and has not lacked diligence in the premises”, yet no proof whatsoever was introduced in support of these allegations. As said by the Supreme Court, it is not only necessary to allege these essential facts but to introduce evidence in support thereof in order to obtain equitable relief in an application for bill of review. During the trial of this case appellant made no effort to introduce evidence concerning any possible defense which it might have had to the original cause of action, nor was any evidence introduced to show lack of negligence or diligence on the part of the appellant, or its attorneys, in preventing the default judgment from being rendered. In the light of these facts, and in view of the well-established principles of law enumerated above, appellant has failed in its direct attack on the judgment and the trial court correctly denied the relief requested.

Even though we have held that appellant has failed to meet the essential requirements necessary to allow it to recover in this bill of review proceeding, we have carefully examined the three contentions advanced by appellant and find the same entirely lacking in merit. Appellant’s contention that the intervener James O. Calvin, d/b/a Mid-West Meat Company, is not a proper party to this proceeding is overruled. The record reveals that the inter-vener, Calvin, acquired title to the property in question by a separate foreclosure action and a Sheriff’s sale against Ravkind. Since the record reveals that the intervener Calvin now owns all the right, title and interest to the property which is the subject of this litigation, he is not only a proper party but a necessary party to this proceeding. Rule 39(a), Texas Rules of Civil Procedure; Veal v. Thomason, 138 Tex. 341, 159 S.W. 2d 4/2; Scott v. Graham, (Sup.) 156 Tex. 97, 292 S.W.2d 324.

In its next contention, appellant points to the fact that in cause No. 35865/F the suit was styled City of Dallas v. American Spiritualist Association, a corporation, but that the citation was issued to read “City of Dallas v. American Spiritualistic Association, a corporation” and therefore the variance in the name of the defendant would be fatal. (Emphasis supplied). Appellant’s contention has been decided against it by our Supreme Court in the case of Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840 in which it was held that where a corporation intended to be sued is actually sued and served by wrong corporate name, but fails to appear and plead such misnomer in abatement, same is conclusive upon such corporation to the extent as though it had been named and served by its true name. It is not denied that the correct corporation was sued and served. In oral argument appellant concedes that the point is untenable.

We come now to a consideration of ap- ■ pellant’s chief complaint which is that the real estate in question was not described correctly and therefore the judgment, and subsequent proceedings, are entirely void. The record reveals the following facts concerning the description of the property. Appellant obtained the property in question by deed from L. D. Everett dated June 16, 1955, the property being described therein as follows:

“All that certain lot, tract or parcel of land situated in Dallas County, Texas, and being a part of Lot 2, Block 1/1122, of Fetzer’s Addition, an addition to the City of Dallas, Texas, according to the map thereof, recorded in Vol. 71, p. 286, Map Records, Dallas County, Texas, and being more fully described by metes and bounds as follows: (then follows a description by metes and bounds of a piece of land 48 feet by 80 feet).”

Appellee, City of Dallas, filed suit against appellant on May 11, 1958 seeking to recover ad valorem taxes due and owing and foreclosure of its tax lien in Cause No. 35865/F styled City of Dallas v. American Spiritualist Association, a corporation, said property being described in the petition as follows: “Being the Southeast part of Lot 2, 48 feet by 80 feet, Block 1/1122, Colonial and Alley, according to the official Map and Plat Records of Dallas County, Texas.”

Citation in Cause No. 35865/F described the property as follows:

“Being the Southeast part of Lot 2, (48' x 80'), Block 1/1122, Colonial and Alley to the City of Dallas, as recorded in the Deed Records of Dallas County, Texas.”

Judgment in said cause No. 35865/F was rendered on June 18, 1958 ordering a foreclosure of tax lien by the City of Dallas for ad valorem taxes, said property being described in said judgment as follows:

“Being part of Lot 2, 48' x 80', Block 1/1122, Colonial and Alley, according to the Official Map and Plat Records of the City of Dallas, lying and being situated within the City of Dallas, Texas.”

Pursuant to said judgment the Sheriff of Dallas County, Texas conveyed said property by Sheriff’s Deed to Dave Rav-kind, said deed describing the property as follows:

“Being that certain Lot, Tract or Parcel of land lying and being situated in Dallas County, Texas, and being described as follows to-wit: Being part of Lot 2 (48'x 800 Blk. 1/1122, Colonial and Alley according to the official Map and Plat Records of Dallas County, Texas.”

On December 5, 1960 judgment was rendered in favor of intervener, James O. Calvin, d/b/a Mid-West Meat Company, against Phil Miller, d/b/a Phil’s Delicatessen, and Dave Ravkind, jointly and individually, an execution was levied against the property involved herein, said property being described in Sheriff’s Deed from Bill Decker, Sheriff, to intervener Calvin, as follows:

“All that certain Lot, Tract or Parcel of land lying and being situated in Dallas County, Texas, and being described as follows, to-wit: First Tract: Lot 3, Blk. 1/1122, being 48 feet by 80 feet out of Fetzer’s Addition to the City of Dallas and located in the 2700 Blk. of Colonial Avenue, Dallas, Texas.”

During the trial appellant introduced into evidence a page from the County Plat Book, Dallas County, Texas, showing Blk. 1/1122 and showing the identical property conveyed by the American Spiritualist Association, a corporation, by a Sheriff’s Deed to Dave Ravkind. The property was identified on said Map by Marvin Coker, Deputy Asses'sor and Collector of taxes for the City of Dallas, Texas. The record also contained Map and Plat records of Blk. 1/1122 to 1/1125 kept by the City Tax Department of the City of Dallas on which Marvin Coker identified the particular tract in question. During the trial Marvin Coker identified the property described in plaintiff’s original petition in Cause No. 35865/F both on the City Maps and the County Maps, testifying that said Maps and Plats correspond and were the same for purposes of identification. In comparing the metes and bounds description contained in the original deed from Everett to appellant with the official Maps and Plats of Dallas, Texas and Dallas County the property is easily located by the various calls. The extrinsic testimony of Coker identified the tract which was originally purchased by appellant from Everett to be the exact tract upon which the City of Dallas’ tax lien was foreclosed and the same tract described in the Sheriff’s deed to Dave Ravkind as well as the tract now owned by intervener Calvin.

Thus it will be observed that although there were discrepancies in the various instruments relating to the identification and description of the property yet, with the aid of the extrinsic evidence given by the witness Coker, a positive identification of the property was accomplished which authorized the trial court to impliedly find that the description of the property was of such certainty as not to render the judgment or the sale void.

The answer to the question of sufficiency of description to convey title to real property in this State is found in well-established rules of law. It has been said that the function of the description in a deed is to furnish the means of identification of the land, rather than to identify the land itself. 19 Tex.Jur.2d 424-425, § 124; Blackwell v. Scott, Tex.Civ.App., 223 S.W. 334, err. ref. A deed is not void for uncertainty, unless a description cannot be made to apply to any definite piece of land even with the aid of extrinsic evidence. Under the maxim that “that is certain which is capable of being made certain”, a description that does not fully define the land, but when aided by extrinsic testimony enabled the land in question to be identified with certainty, it is sufficient. 19 Tex.Jur. 2d 427-428, § 125. It is also the rule that controlling effect will be given, whenever possible to that part of the description which will uphold the deed’s validity, rather than give effect to that part of the description that would void the deed. Rollison v. George, Tex.Civ.App., 319 S.W.2d 389. The description in a deed will satisfy the requirements of “sufficiency” and furnish the basis for the admission of extrinsic testimony, if the words, when fully explained and understood, shall enable the land to be identified with reasonable certainty. Miller v. Hodges, Tex.Com.App., 260 S.W. 168; Pierson v. Sanger, 93 Tex. 160, 53 S. W. 1012; Catlett v. Starr, 70 Tex. 485, 7 S.W. 844; 14 — B Tex.Jur. § 182, p. 637.

See also Slaughter v. City of Dallas, 101 Tex. 315; 107 S.W. 48; City of San Antonio v. Terrill, Tex.Civ.App., 202 S.W. 361, err. ref.; and Grace v. City of Bonham, 26 Tex.Civ.App. 161, 63 S.W. 158, which apply these rules of identification.

When we apply the well-established rules to each of the above descriptions contained in the various instruments in question here, we arrive at the conclusion that said property has not been misdescribed to such an extent as to render any of the instruments or proceedings void. From the various descriptions there can be no doubt that the property in question is located in the City of Dallas, Dallas County, Texas, and that it is the Southeast part of Lot 2, 48 feet by 80 feet in Blk. 1/1122, according to the Records of both the City and County of Dallas. Most significant is the fact that the property described in the original deed from Everett to appellant, being described by metes and bounds, is found on the Map and Plat Records of both the City and County of Dallas. The witness Coker, by taking the data and information provided on the various instruments, found little difficulty in identifying the property as being the same on both the City and County Map and Plat Records. Thus that was made certain which was capable of being made certain.

Finding, as we do, no merit in any of appellant’s points of error, same are overruled and the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    NATIONAL SURETY CORPORATION, Appellant, v. STANDARD CONCRETE PIPE SALES COMPANY, Appellee.
    No. 14056.
    Court of Civil Appeals of Texas. Houston.
    Jan. 10, 1963.
    On Rehearing March 14, 1963.

      Russell Talbott, St. John Garwood, Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appellant.
    Carlton Wilde, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment in favor of a materialman, and against a general contractor and the surety on a payment bond executed in compliance with Art. 5160, R.C.S. Included in the judgment was an .order severing appellee’s claim for attorney’s fee under Art. 2226, R.C.S.

Appellant specifically excepted to the action of the trial court in granting the severance, and on this appeal presents a point that this action of the trial court was error requiring a reversal of the case.

Rule 174, Texas Rules of Civil Procedure, authorizing separate trials of claims or issues, and Rule 41 dealing with severance, were considered by the Supreme Court of Texas in Kansas University Endowment Ass’n v. King, Tex., 350 S.W.2d 11, and Justice Walker speaking for the court stated: * * * Severance is proper, however, only where the suit involves two or more separate and distinct causes of action. Each of the causes into which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controVerSy ⅜ ⅜ ⅜

In Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493, the court held :

“While the attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt (Davenport v. Harry Payne Motors, Inc., Tex.Civ.App.1953, 256 S.W.2d 245, no writ history), and are not ordinarily recoverable in a tort or contract action (Cleveland State Bank v. Lilley, Tex.Civ.App.1924, 260 S.W. 324 (2), no writ history), they may be recovered by compliance with the statutory provisions of Article 2226. That a suit for the statutory attorney’s fees as a separate action could not be maintained is evident from the wording of the statute. Since the right to recover is dependent upon the recovery of a judgment on a claim, * *

The trial court erred in ordering the claim for attorney’s fees severed from the suit on account since the claimant must prevail in the suit on account before a recovery of attorney’s fees is authorized by Art. 2226, R.C.S. A suit for statutory attorney’s fees as a separate action cannot be maintained. Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W. 2d 493.

The error of the court in granting severance was prejudicial in that it made what otherwise would have been an interlocutory summary judgment final. Appellant filed controverting affidavits raising an issue of fact on the question of the reasonableness of the attorney’s fees demanded. He was entitled to rely on this as being sufficient to defeat the motion for summary judgment. The judgment entered, from which appeal has been prosecuted, did not properly dispose of the issues presented to the trial court.

Appellee has requested leave to file a supplemental transcript containing the motion for dismissal, and order dismissing, the severed claim for attorney’s fees. These instruments do not constitute part of the record of the case under consideration. Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946; Paschall v. Renshaw, Tex.Civ.App., 142 S.W.2d 717; Whitmarsh v. Buckley, Tex.Civ.App., 324 S.W.2d 298. Leave to file the supplemental transcript must be denied.

Appellant also contends that the trial court erred in rendering judgment against it as surety on its payment bond because the affidavits filed to support the motion for summary judgment failed to show that the notice given appellant, National Surety Corporation, complied with the requirements of Art. 5160, R.C.S. The cause of action against National Surety Corporation is based on a payment bond executed by the Corporation as surety for a general contractor on public work. This bond is required of general contractors for public work by Art. 5160, supra. This act provides :

“B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of tfie suit; provided:
“(a) Notices Required for Unpaid Bills, other than notices solely for Re-tainages as hereinafter described.
“Such claimant shall have given within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties. Such notices shall be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed. Such statement of account shall include therein the amount of any retainage or retainages applicable to the account that have not become due by virtue of terms of the contract between the claimant and the prime contractor or between the claimant and a subcontractor. When the claim is based on a written agreement, the claimant shall have the option to enclose, with the sworn statement of account, as such notice a true copy of such agreement and advising completion or value of partial completion of same.
“(1) When no written contract or written agreement exists between the claimant and the prime contractor or between the claimant and a subcontractor, except as provided in subparagraph B(a) (2) hereof, such notices shall state the name of the party for whom the labor was done or performed or to whom the material was delivered, and the approximate dates of performance and delivery, and describing the labor or materials or both in such a manner so as to reasonably identify the said labor or materials or both and amount due therefor. The claimant shall generally itemize his claim and shall accompany same with true copies of documents, invoices or orders sufficient to reasonably identify the labor performed or material delivered for which claim is being made. Such documents and copies thereof shall have thereon a reasonable identification or description of the job and destination of delivery.
“(2) When the claim is for multiple items of labor or material or both to be paid for on a lump sum basis such notice shall state the name of the party for whom the labor was done or performed or to whom the material was delivered, the amount of the contract and whether written or oral, the amount claimed and the approximate date or dates of performance or delivery or both and describing the labor or materials or both in such a manner so as to reasonably identify the said labor or materials.
“(3) When a claimant who is a subcontractor or materialman to the prime contractor or to a subcontractor has a written unit price agreement, completed or partially completed, such notices shall be sufficient if such claimant shall attach to his sworn statement of account a list of units and unit prices as fixed by said contract and a statement of such units completed and of such units partially completed.”

A sworn account, which has not been attacked as insufficient or denied by a sworn pleading, and a certified copy of the bond, were attached to appellee’s original petition. The affidavit of Howard L. Terry was attached to the motion for summary judgment. In this affidavit Terry stated:

“On November 7, 1960, Standard Concrete Pipe Sales Company gave the Defendants written notice that claim was being made upon them for payment for materials delivered by Standard Concrete Pipe Sales Company to the jobsite during the months of July, August and September, 1960, in the total sum of Thirty-One Thousand Five Hundred Fifty-Nine and 82/100 ($31,-559.82) Dollars.”

Appellant contends that proof that a written notice was given is not sufficient to establish that such notice complied with the requirements of Art. 5160, R.C.S., and that such proof was necessary to establish that there is no fact issue in this case. If it would have been necessary for the plaintiff in the trial court to prove the contents of the written notice given appellant in order to show himself entitled to an instructed verdict, the trial court erred in granting this summary judgment. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492. The burden rests with the movant to show that there is no disputed fact issue. Box v. Bates, Tex.S.Ct., 346 S.W.2d 317.

We cannot say that the only reasonable inference to be drawn from the undisputed fact that a written notice was given to appellant by appellee is that all of the facts and instruments required by the provisions of Art. 5160, R.C.S., were contained in such notice. Bliss v. City of Ft. Worth, Tex.Civ.App., 288 S.W.2d 558, writ ref., n. r. e. Since the requisite facts showing that a legally sufficient notice of claim was given appellant was not presented to the trial court by affidavits, depositions, admissions or otherwise, appellant was not under any burden to contravene the allegations in the motion for summary judgment. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492.

The judgment of the Trial Court is reversed and the cause is remanded to the Trial Court with instructions that the severed causes be reconsolidated.

On Motion for Rehearing

Appellee has filed a motion for rehearing in which it points out that in our opinion we stated that appellant filed affidavits controverting the reasonableness of attorney’s fees demanded, whereas the affidavits in fact were filed by persons who are not parties to this appeal. All affidavits forming part of the record before the trial court must be considered in determining whether or not an issue of fact is raised requiring adjudication.

We have held that the action of the trial court in ordering severance was error, and have ordered the causes re-consolidated. While appellee may have taken a voluntary non-suit as to that part of its cause of action which was severed, this does not defeat the power of this Court to make effective its rulings. All proceedings which may have been had in the severed cause of action concerning attorney’s fees are ineffective, and the parties may be required by the trial court to file amended pleadings. After such pleadings are filed, the case will proceed in the normal fashion. American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697.

On reconsideration we have determined that the judgment recovered by Standard Concrete Pipe Sales Company against Mc-Elwrath Bros., Inc. and Geo. Kennedy & Son, who did not appeal, should be affirmed. We do not see that the rights of National Surety Corporation will be prejudiced by this action. The judgment rendered in favor of National Surety Corporation on its cross-action for indemnity is reversed since there is now no judgment against National Surety Corporation for the payment of which it could be indemnified. The cause of action for indemnity including the right to indemnity for any attorney’s fee it may be adjudged to pay, is preserved to National Surety Corporation just as if the erroneous judgment had never been entered.

Appellee’s motion for rehearing is granted in part and in part overruled.


author: COLLINGS, Justice.

text:
    Billie Jean PARKER et vir, Appellants, v. TRADERS & GENERAL INSURANCE COMPANY et al., Appellees.
    No. 3775.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1963.
    Rehearing Denied April 5, 1963.

      Alfred M. Scott, Austin, John O. Harris, Coleman, for appellants.
    Turner & Seaberry, Eastland, McMahon, Smart, Sprain, Wilson & Camp, Abilene, Will Wilson, Atty. Gen., Austin, for appel-lees.
   COLLINGS, Justice.

Billie Jean Bell was the original plaintiff herein, and after her marriage was joined pro forma by her husband Mack O. Parker in this suit against Traders and General Insurance Company, Texas Employers’ Insurance Association and the Industrial Accident Board of the State of Texas, seeking to recover death benefits under the Workmen’s Compensation Act on account of the accidental death of Henry E. Ford in Coleman County on September 12, 1954. Mrs. Parker alleged that she was an adopted child of the deceased Henry E. Ford; that at the time of his death Mr. Ford was an employee of Coleman County Electric Cooperative, Inc., and/or Maxwell Drilling Company and was then engaged in the course of his employment with such employers.

In the pleadings of Traders & General Insurance Company, the insurance carrier for Coleman County Electric Co-operative, Inc., it was alleged that Ford at the time of his death was an independent contractor or alternatively was an employee of Maxwell Drilling Company. The defendant Texas Employers’ Insurance Association, the insurance carrier for Maxwell Drilling Company, alleged that Ford at his death was an independent contractor or alternatively was an employee of Coleman County Electric, Inc. All of the defendants denied that Mrs. Parker was an adopted ■ daughter of Ford. Upon trial before a jury it was found that Mrs. Parker was not the adopted daughter of Ford; that Ford, at the time of his death was not working as an independent contractor, but was both an employee of Coleman County Electric, Inc., .and a borrowed employee of Maxwell Drilling Company and that he received his fatal injuries in the scope of both employments.

Texas Employers’ Insurance Association presented motions to disregard the findings that Ford was a borrowed employee of Maxwell Drilling Company and engaged in such employment at the time of his death, and to grant it judgment, notwithstanding, the verdict. Such motions by Texas Employers’ Insurance Association were granted, judgment was entered against Mrs. Parker and her husband on their claim, and judgment entered for the Industrial Accident Board against Traders & General Insurance Company in the sum of $1,500.00. Mrs. Parker and her husband have appealed. Traders & General Insurance Company has perfected an appeal from that portion of the judgment adverse to it and filed a brief as appellee in regard to the appeal by Mrs. Parker and her husband.

It is not contended that there was a statutory adoption of Billie Jean Bell by Ford. Special issues 10 through 18 relate to the question of whether or not Billie Jean Bell had been adopted by Ford by estoppel. The jury found in answer to special issue number 13 that Ford had treated, reared and cared for Billie Jean Bell as if she were his daughter; to special issue number 14 that she had rendered to Ford obedience, love, affection, duties and service of a child to a father; to special issue number 16 that Ford had exercised parental control and authority over her, but found in answer to special issue number 17 that such control and authority was not continuous, exclusive or without interruption by others. In answer to special issues numbers 10, 11 and 12 it was found by the jury that Ford never agreed to adopt Billie Jean Bell and to special issue number 15 that Billie Jean’s mother did not permanently surrender to Ford her parental authority and control. The Parkers contend that the court erred in overruling their motion to disregard the findings of the jury in answer to special issues numbers 10, 11, 12, 15 and 17. They contend that the evidence shows an equitable adoption as a matter of law and that the court therefore erred in entering judgment against them. We cannot agree with this contention.

The burden of proof to show that Mrs. Parker was an adopted child of Ford was on the Parkers and the special issues concerning that question were so submitted. The evidence does show without dispute that Mrs. Parker’s mother was a sister to Ford and that after her mother’s divorce from her father, Mrs. Parker lived for several years in the same house with Ford and his parents. There was evidence to the effect that Mrs. Parker’s mother also lived for a time after her divorce in Henry Ford’s home, and that Ford stated his intention to adopt Billie Jean Bell, (now Parker). The evidence further shows, however, that Mrs. Parker’s grandmother, Ford’s mother, was the principal person who took care of her after the divorce and that her grandfather was listed as her parent or guardian for school purposes. There was evidence to the effect that while living with her uncle she was not called Billie Jean Ford hut kept the name Billie Jean Bell. When Ford died his estate did not go to Mrs. Parker hut was divided among his brothers and sisters. Mrs. Parker’s letter to the Industrial Accident Board indicated that Ford was her uncle and made no claim of any other relationship between them. Mrs. Parker’s testimony and other testimony in her behalf concerning an equitable adoption by Ford was not “clear, unequivocal and convincing” to the effect that there had been such an adoption. See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W. 2d 972. Mrs. Parker in effect admitted that she had previously stated she was only claiming that her uncle had supported her and not that he had adopted her. Mrs. Parker’s mother who had testified that Ford intended to adopt her daughter filed the claim for compensation in 1954 and in listing the names of beneficiaries stated only that Billie Jean Bell was a niece of Ford and did not indicate that she was an adopted daughter. The social security payment to Ford’s estate went to his brothers and sisters and not to Billie Jean Bell. The evidence in our opinion does not, conclusively and as a matter of law, show an adoption by estoppel. The court did not err in entering judgment against the Park-ers in accord with such findings of the jury.

The Parkers urge other points in which it is contended that the court erred in permitting Traders & General Insurance Company and Texas Employers’ Insurance Association six peremptory challenges each and in allowing them to confer with each other in regard to the exercise of such challenges. These points are not well taken. Both insurers denied liability claiming that Ford was an independent contractor, and denied liability to the Parkers on the theory that there had been no adoption, hut each pleaded and contended in the trial court that if there was any liability under the Workmen’s Compensation Act that the other defendant was the liable carrier. Their interests were conflicting. Under these circumstances each company was entitled to six challenges. Rule 233 Rules of Civil Procedure; Texas Employers’ Insurance Association v. Baker, Tex. Civ.App., 278 S.W.2d 419, (Ref.N.R.E.); Gussett v. Nueces County, 235 S.W. 857, (Tex.Com.App.); Alaga v. Stubblefield, Tex.Civ.App., 174 S.W.2d 627. The attorneys for such defendants were likewise entitled to confer with each other in the exercise of such challenge. First National Bank v. San Antonio & A. P. R. Co., 97 Tex. 201, 77 S.W. 410; City of San Antonio v. Reed, Tex.Civ.App., 192 S.W. 549, (error refused) ; Edwards v. West Texas Hospital, Tex.Civ.App., 107 S.W.2d 729 (writ dismissed.).

We also overrule points urged by the Parkers contending that the court erred in refusing to disqualify Martha L. Morris and Donald J. Hart as prospective jurors. Article 2134 Vernon’s Ann.Texas Civ.St. sets out the qualifications for jurors and neither of the prospective jurors was disqualified under this statute. The Parkers’ contention that such veniremen were disqualified is based upon the fact that the evidence shows that one of them was an employee of Coleman County Electric Cooperative, Inc., and that the other was regularly engaged in the business of conducting an insurance agency. There was no evidence that either of the veniremen or the Coleman County Electric Co-operative, Inc., was financially interested in any way in the outcome of the suit although Traders & General Insurance Company was its compensation insurance carrier. Both veniremen stated that they had no preconceived opinions which would influence their decision and each believed he could make a fair and impartial juror. The rule in such cases is stated in Bennett v. Jackson, Tex.Civ. App., 172 S.W.2d 395, (error refused), “A challenge for cause not based on any ground mentioned in the statute is ordinarily addressed to the sound discretion of the trial judge whose action thereon should not be disturbed on appeal unless it clearly appears that a fair and impartial trial was thereby prevented.”

In the Parkers’ 13th point it is contended that the court erred in refusing to permit counsel for the Parkers to call C. L. Newton, Leo Brandt, M. D. Snow, Austin N. Erwin and S. C. McKinley as adverse witnesses under Rule 182 V.T.R. C.P. because they were employees of either Coleman County Electric Co-operative or Maxwell Drilling Company. Neither Coleman County Electric Co-operative nor Maxwell Drilling Company are parties to this suit. The defendant insurance companies herein are their compensation insurance carriers but Rule 182 applies to parties only and such witnesses are not officers or agents of such defendants. The point is overruled.

Mrs. Parker claims to be the adopted child of Henry Ford deceased. Mrs. Phelps, Billie Jean Bell Parker’s mother testified that she had considered Billie Jean to be Henry Ford’s daughter and heir for some thirteen years prior to his death; that she knew that Billie Jean as an adopted daughter would be his only heir and would stand in the shoes of a natural child, and that since 1941 she had considered Billie Jean to be Henry Ford’s child and heir. In numerous points the Parkers contend that the court erred in admitting evidence tending to refute the claim of Billie Jean Bell Parker and to discredit or impeach the testimony of Mrs. Parker’s witnesses that she was the adopted daughter of Henry Ford. The evidence complained of consists of testimony and actions of Mrs. Parker, her mother and other relatives who were witnesses for her including claims and papers filed with the Industrial Accident Board which contained statements inconsistent with Mrs. Parker’s claim and her mother’s testimony that she was an adopted child of Henry Ford. These points are likewise not well taken.

The evidence complained of by the Par-kers bears directly on the question of whether or not Mrs. Parker and her said witnesses were during the period in question laboring under the impression and understanding that there had been an agreement between Mrs. Phelps and Henry Ford that Ford would adopt Billie Jean Bell Parker and whether or not Henry Ford did by estoppel make such adoption. The evidence complained of is inconsistent with the idea that Mrs. Parker or her mother Mrs. Phelps had ever considered that there had been an adoption until this law suit was brought. As already indicated such evidence showed that the brothers and sisters of Henry Ford divided his estate between themselves; that Billie Jean Bell Parker neither received nor claimed any portion thereof as an heir. Likewise when Mrs. Phelps, the mother of Billie Jean filed a claim on behalf of Billie Jean with the Industrial Accident Board she indicated that Billie Jean was merely a niece of Henry Ford. Such action on the part of Mrs. Phelps was inconsistent with her testimony on the trial to the effect that Billie Jean was the adopted daughter of Ford. Billie Jean’s conduct in this connection, and her own letter to the Board also indicated that she was Ford’s niece and made no claim or mention of any contention that she was an adopted child. Such evidence, refuting the claim of Billie Jean Bell Parker that she was the adopted daughter of Henry Ford, was admissible and it was not error for the trial court to admit it in evidence. The Parkers’ contention that papers filed with the Industrial Accident Board setting out statements inconsistent with their claims are not admissible in evidence under the circumstances is untenable. United Employers Casualty Co. v. Smith, Tex.Civ.App., 145 S.W.2d 249 (error refused) ; Texas Employers’ Insurance Association v. Davis, Tex.Civ.App., 228 S.W. 2d 257; Texas General Indemnity Company v. Scott, 152 Tex. 1, 253 S.W.2d 651.

The Industrial Accident Board was made a party defendant herein by the Par-kers and the Board was an active litigant in the case, seeking recovery against the defendant insurance carrier on behalf of the second injury fund created by the provisions of Article 8306, Section 12c, V.A.T. C.S. Appellant Traders & General Insurance Company excepted to the pleadings of the Parkers and sought to have the Board eliminated as an active litigant. They urge that the court erred in not sustaining their exception and contention in this respect. The point is overruled. It should be noted that the question here involved is not whether it would be proper to permit evidence to go to the jury to the effect that the Board had refused or allowed the claim for compensation, or the amount of its award, if any. The question is whether the Board has the right to be an active litigant. Article 8306, Section 12c, provides for the creation of a special fund known as the “second injury fund”, providing for the payment of a specified amount to the Industrial Accident Board in every case of death of an employee under the Workmen’s Compensation Act where there is no person entitled to compensation surviving said employee. One of the duties of the Industrial Accident Board under this statutory provision is to see to it that a compensation carrier which ought to pay into the State Treasury for the benefit of the fund does so. Industrial Accident Board v. Miears, Tex. Civ.App., 227 S.W.2d 571, affirmed in part and reversed on other grounds in part 149 Tex. 270, 232 S.W.2d 671. In the instant case the pleadings of the parties presented conflicting contentions concerning the status of Ford at the time of his death. It was variously contended that he was an independent contractor, a general employee of Coleman County Electric Co-operative, Inc. and a borrowed employee of Maxwell Drilling Company; that he was an employee of Coleman County Electric Co-operative, Inc. alone, and that he was an employee of Maxwell Drilling Company alone. Since the board has the duty to see to it that a compensation carrier which ought to pay funds into the State Treasury for the benefit of the second injury fund does so, it has the right to participate as an active litigant in a proper suit to accomplish that purpose. Industrial Accident Board v. Texas Employers’ Insurance Ass’n (Sup.Ct.), 345 S. W.2d 718.

It was found by the jury that Ford at the time of his death was an employee of Coleman County Electric Co-operative, Inc. and was acting within the scope of such employment. Appellant Traders & General Insurance Company contends in points 2 through 7 that there is no evidence to support such findings and in the alternative that such findings are so against the great weight and preponderance of the evidence as to be the result of bias and prejudice. The jury also found in answer to special issue number 19 that Ford at the time of his death “was not working as an independent contractor.” Appellant Traders & General Insurance Company urges in points 8 and 9 that the undisputed evidence shows that Ford was an independent contractor at the time" of his death, and that the answer to special issue number 19 is without any support in the evidence or in any event that • the evidence is insufficient to support such finding. It also contends in the alternative in points 11 and 12 that the court erred in granting the motion of Texas Employers’ Insurance Association to disregard the findings of the jury in answer to special issues numbers 3 and 4 to the effect that Ford was a borrowed employee of Maxwell Drilling Company and was at the time of his death acting within the scope of such employment.

It is undisputed that Ford at the time of his death was an employee of Coleman County Electric Co-operative, Inc., although it is contended that he was not engaged in such employment. It is also undisputed that he was dynamiting a slush pit for Maxwell Drilling Company. The evidence shows that Ford had worked for the Co-operative for several years prior to his death; that he was a lineman helper, truck driver, hole digger and a lead ground man. He worked for the Co-op 5 days a week Monday through Friday. The evidence further shows that Ford and a fellow worker, Snow, did dynamiting for the Coop; that the Co-op would upon request occasionally allow its equipment to be used by its employees for other concerns in that area who desired to have blasting done. Mr. McKinley an employee of Maxwell Drilling Company had called Mr. Brandt, the line superintendent, of Coleman County Co-operative, Inc., to see if some one was available to do blasting work on a pit which Maxwell desired to be dug at a drilling location. Brandt told McKinley that the Cooperative didn’t do blasting work for others but that he would contact some of the employees of the Co-op to see if they wanted to do the work for Maxwell. Brandt then contacted Snow, Snow contacted Ford, and Brandt was advised that Snow and Ford would do the work. Brandt arranged for Snow and Ford to meet McKinley at the Co-operative warehouse. He did not order or direct them to do the work but told them they could do it if they wanted to and that the Co-op would allow them to use the truck and other Co-op equipment including the detonator to be used for dynamiting, which was according to the custom of the Co-op in such cases. Thereafter on Sunday morning of September 12, 1954, Snow and Ford met McKinley in Coleman and were taken to the location of the slush pit where the fatal injury occurred soon after the work began. McKinley told them where he wanted the pit and advised them that he wanted it to be 4 feet deep. No one directed the manner of the performance of the work of Snow and Ford in blasting the pit. They themselves determined all the details of the blasting work including what hours they worked, how many holes they drilled, where the holes were drilled, how they were spaced, how many sticks of dynamite they would use in each hole, how many charges would be fired at one time, how and when the charges would be detonated and how far away to go during the blasting. No one with the Co-operative had anything to do with the manner in which Snow and Ford performed their work on the Maxwell lease, and the work was done on a week end after they had completed their 5 day work week with the Co-op. The evidence does show, however, that the equipment used by Snow and Ford was the property of, and used with the consent of, the Cooperative and was subject to their control and management. Although Snow and Ford set their own prices for their labor, they turned the charges into the Co-operative. The Co-op paid them and then billed Maxwell therefor in full including Social Security which the Co-op paid on Ford’s services during the time he was engaged in this work. The Co-op also withheld taxes from the amount due Ford. The uncontradicted evidence shows that the Coop carried Workmen’s Compensation Insurance on Ford as one of its employees. The evidence also shows that the Co-op charged Maxwell for the use of its equipment. Appellant Traders & General Insurance Company’s points 2, 3, 4, 5, 6, and 7 and its points 11 and 12 are not well taken. There is in our opinion ample evidence to support the findings that Ford was not an independent contractor at the time of his death; that on the contrary the general relationship of employer and employee still existed between the Co-op and Ford. We also hold that such findings are not against the great weight and preponderance of the evidence. Appellant Traders & General Insurance Company’s contentions in this respect have been adversely determined in Insurers Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217, a case in which the facts are strikingly similar to those of the instant case. In that case a quotation from Restatement of the Law, Agency, Under Sec. 227 at page 501 et seq. is set out as follows:

“A continuation of the general employment is indicated by the facts that the general employer may at any time substitute another servant, that the time of employment is short, and that the lent servant has the skill of a specialist.
“A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality and these may be divergent from the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues. Upon this question, the fact that the general employer is in the business of renting machines and men is relevant, since in such case there is more likely to be an intent to retain control over the instrumentality * * * j>

The evidence supports the conclusion that at and prior to the time of Ford’s death it was the customary practice of Coleman County Electric Co-operative, Inc., to lease its equipment when it was convenient to do so to concerns or individuals which needed it on a “fully operated basis.” This practice was considered a matter of vital and controlling importance in the determination of the Pridgen case. In the instant case the employees who did the work for Maxwell were volunteers but their selection was under the control of the Co-op which at any time could substitute another of its employees. The loaned employees were skilled in the work they were doing and such work required the use and operation of the special equipment leased by the Co-op to Maxwell. The time of employment with Maxwell was short. The Co-op, in lending its skilled employees necessary in the operation of its leased equipment, was definitely interested in and had the right to control the work at least to the extent of the manner of use of their equipment. In this connection Judge Garwood, speaking for our Supreme Court in the Pridgen case stated as follows:

“by reason of his status and the understanding of all parties that the machine was leased ‘fully operated’, Smith had and, without need of word or specific act, exercised control of the details of management of the machine. Certainly there was no agreement that he would not do so or that Shipyard or Somnier would do so in preference to him. For Smith to retain control over his own machine and his own employee as to the details of operation, it was not essential that he be in charge of the general aspects of the work or have any contract at all with Shipyard.”

The evidence is not in dispute concerning the relationship of the deceased Ford to Maxwell Drilling Company. The evidence shows that the pit to be blasted belonged to Maxwell and that.an agent of Maxwell showed Ford and Snow where the pit was to be dug and instructed them as to the desired depth. There was no evidence tending to show that Maxwell directed or had the right to direct the details of how the work was to be accomplished. The only interest of Maxwell was to secure the digging of the pit according to certain specifications. Under these circumstances the evidence, as a matter of law, does not show a borrowed employee. Insurors Indemnity & Insurance Co. v. Pridgen, supra; Travelers Insurance Company v. Ray, Tex. Civ.App., 262 S.W.2d 801, (error refused); Shannon v. Western Indemnity Co., 257 S.W. 522 (Tex.Com.App.); Goodwin v. Wilhelm Steel Const. Co., Tex.Civ.App., 311 S.W.2d 510, (Ref.N.R.E.). The court did not err in granting the motion of Texas Employers’ Insurance Association to disregard the finding of the jury to the effect that Ford was a borrowed employee of Maxwell Drilling Company at the time of his death and was then acting within the scope of such employment.

We have carefully examined all points urged by all appellants herein and find no

The judgment of the trial court is af-reversible error, firmed.

WALTER, J., disqualified and not sitting.


text:
    Harvey JAMESON et al., Appellants, v. Robert Edward MELTON, Appellee.
    No. 16147.
    Court of Civil Appeals of Texas. Dallas.
    March 8, 1963.

      James L. Mitchell and J. Harvey Lewis, Dallas, for appellants.
    Brundidge, Fountain, Elliott & Churchill, Dallas, for appellee.
   WILLIAMS, Justice.

Action for damages brought by Donna Ruth Jameson, a minor, acting by next friend, Harvey Jameson, against Robert Edward Melton, a minor, in which plaintiff alleged that she had sustained personal injuries as a result of a collision between an automobile she was driving and one operated by defendant. At the conclusion of a jury trial the court submitted the case upon twenty-eight special issues. The jury convicted the defendant Melton of several acts of negligence which proximately caused the collision. The jury also found that the plaintiff, Donna Ruth Jameson, was driving her vehicle at an excessive rate of speed and further that she failed to keep a proper lookout. Each of said acts was found to have proximately caused the collision. The trial court rendered judgment for defendant.

By five points of error appellants complain of the trial court’s rerasal to grant a new trial because of the insufficiency of the evidence to support the jury’s answers to the special issues convicting Donna Ruth Jameson of contributory negligence. We overrule these points and affirm the judgment of the trial court.

In reaching our determination of the issues of “insufficiency of the evidence” points presented we are governed by established rules of law announced by our Supreme Court. Where the issue presented is one of “no evidence” then the question is one of law and a reviewing court considers only the evidence favorable to the verdict. Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. However, in a case such as this, wherein the question of “insufficiency of evidence” is presented for consideration the question is one of fact which requires this court to consider and weigh all of the evidence in the case, that is to say, the evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict. In re King’s Estate, 150 Tex. 662, 224 S.W.2d 660; Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814; “No Evidence” and “Insufficient Evidence” Points of Error, Robert W. Calvert, 38 Tex.L.Rev. p. 361. We have, in obedience to such rule so announced, reviewed all of the evidence in this record relating to the special issues on speed and lookout as to appellant, whether said evidence is favorable to or against the verdict rendered by the jury.

A fair summarization of the essential testimony presents the following all too familiar picture. Three automobiles are involved. Donna Ruth Jameson, age sixteen, accompanied by three other teen-aged girls, was driving her automobile home from school on the afternoon of April 2d, 1959. Appellee Melton, also sixteen years of age, was driving his automobile home from school at the same time. A Studebaker driven by one Ned Trudnoski (not a party to this case) was also in the vicinity of the other two automobiles at the time. All three automobiles were being driven in a northerly direction on Hampton Boulevard in the City of Dallas, same being a six-lane divided thoroughfare with three lanes for north bound traffic and three lanes for south bound traffic and being divided by a grassy island. According to Melton all three of the automobiles were being operated up a hill with the Trudnoski automobile .ahead of the other two. He testified that as he proceeded up this hill he passed the Jameson car, which was in the middle lane, .and that he was going around 40 miles per hour and that the Jameson car was going .about that fast; that as he pulled ahead of '.her about a car’s length she then pulled up .and passed him just as they were topping the hill. He said he then pulled up, passed her again, and that just as they topped the .hill he was in the far right-hand lane and the Jameson car was in the middle lane. .At that time he observed the Trudnoski car right in front of him, not over a car length .away, and since he had bad tires he was .afraid to apply his brakes so he elected to .speed up his automobile and turn into the lane of traffic occupied by the Jameson car thinking he had time to cut between the two cars. However, the left rear of the Melton .automobile hooked the right front of the Jameson automobile causing it to turn ■ over.

Donna Ruth Jameson testified she was •in the inside lane, next to the center median; that she knew a car was following her in the same lane and she pulled over to the • center lane to let this car pass but when it did not she pulled back to the left inside lane where she was at the time the automobile pulled over and “side-swiped” her •car causing it to overturn.

Trudnoski testified that he was traveling about 40 miles per hour when he passed the Jameson automobile and that he estimated she was traveling about the same rate of speed at the time of the accident, which he observed in his rear view mirror. Trud-noski testified if Miss Jameson had slowed down her car “just a little bit” she could have avoided the accident. He also admitted that if she had turned her automobile slightly that the accident could have been avoided.

On the question of proper lookout Miss Jameson testified that she wasn’t noticing the Melton automobile very carefully. She said that as he “went to the outside lane, then I didn’t pay any more attention to him.” She further said that at the time of the accident she was looking “straight ahead” and did not see the Melton car until it actually struck her.

Melton testified that as the two automobiles were driving along passing each other that he was looking at the girls and that the girls were looking at him. He especially said that the driver of the other automobile was looking at him and that he looked at her. Melton said that had Donna Ruth swerved her car to the left at all, even five or six inches, he could have gone by.

Margaret Brewer, one of the girls in the Jameson car, testified that as they were driving along they had turned on the radio and were listening to “Kookie” (identified as a 77 Sunset Strip television star) singing a song about his comb.

Having studied this entire record, and considering all of the testimony both for and contrary to the questioned issues, we have concluded that the jury answers to the issues condemning the Jameson girl of excessive speed, negligence, proximate cause, as well as improper lookout, are supported by sufficient evidence and should not be disturbed.

A case involving very similar facts was decided by this Court in 1961. Arrington, et al. v. Paschall, et al., Tex.Civ. App., 352 S.W.2d 866. The identical questions were there presented concerning the sufficiency of the evidence to raise the question of improper lookout. As we said in that case, and repeat here, proper lookout is ordinarily a question for the jury. Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332. As our Supreme Court in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, said, the question of negligence and causation, like any other ultimate facts, may be established by circumstantial as well as direct evidence. The jury, said the Supreme Court, is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence adduced before it.

As a reviewing court we are not called upon to decide which of the witnesses related the true picture surrounding the unfortunate accident. The resolution of conflicts in the testimony is solely the province of the jury. The jury had before it abundant evidence, both direct and circumstantial, . from which it could and did draw reasonable inferences and conclusions relating to the conduct of both parties. The evidence presented justified the jury in its findings that the teen-aged youngsters were engaging in a transitory flirtation as they drove along the street close together, passing each other from time to time and not exercising that degree of care required of a prudent motorist under the existing circumstances. The whole picture presented, including the entertainment on the radio and the passing game between the cars, was more than sufficient in supporting the jury’s findings that both drivers were lacking in that degree of care required under the prevailing conditions. We cannot say that the jury was wrong in its decision nor that the findings against the Jameson girl are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust or the result of bias and prejudice. Stehling v. Johnston, Tex.Civ.App., 32 S.W.2d 696, err. ref.; Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234, err. ref. n. r. e.; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95.

As stated by the Supreme Court in De Winne v. Allen, supra, every person is under a duty at all times to maintain a proper lookout for his own safety, and may not proceed blindly and in disregard to danger that might be reasonably anticipated to exist.

Finding, as did the trial court, ample evidence to support the verdict of the jury on all issues, the appellant’s points are overruled.

Judgment affirmed.

BATEMAN, J., disqualified and not sitting.


author: HUGHES, Justice.

text:
    Giles E. MILLER, Appellant, v. Honorable Jesse JAMES, Treasurer of the State of Texas, Appellee.
    No. 11057.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1963.

      Giles E. Miller, Dallas, for appellant.
    Will Wilson, Atty. Gen., John Reeves, Asst. Atty. Gen., Austin, for appellee.
   HUGHES, Justice.

Giles E. Miller, a resident of Dallas County, Texas, sued Jesse James, Treasurer of the State of Texas in his official capacity to enjoin him and his assistants “from disbursing or causing to be disbursed any salaries, salary warrants, or other forms of paying wages or salaries to all or any members of the Legislative Redistricting Board of Texas (i. e. (1) Honorable Will Wilson, Attorney General of Texas; (2) Honorable Robert Calvert, Comptroller of Public Accounts of Texas; (3) Honorable James Turman, Speaker of the House of Representatives of Texas; (4) Honorable Jerry Sadler, Commissioner of the General Land Office of Texas; and (5) Honorable Culp Krueger, State Senator for Senatorial District 15 of Texas and President pro tern of the Texas State Senate; and/or Honorable Bruce Reagan, State Senator for Senatorial District 20 of Texas and ex-President pro tern of the Texas State Senate, immediately preceding,) * * * ”

We copy from appellant’s verified petition the basis of his suit:

“That Plaintiff is guaranteed a republican form of government by Section 4 of Article IV of the Constitution of the United States of America, and by Section 2 of Article I oi the Constitution of the State of Texas, and is thereby entitled to equal representation in the making of laws, as equality of representation in the legislative bodies of government is a right preservative of all other rights.
“III.
“That Plaintiff has been denied not only equality of representation but also the degree of proportionate representation to which he is entitled, through the nonfeasance of the Legislative Redistricting Board of the State of Texas, coupled with the political concert of a majority of the members of the 57th Legislature of Texas.
“IV.
“That the members of the Legislative Redistricting Board of Texas, in their oaths of office solemnly swore to uphold the Constitution of the State of Texas which created the Legislative Redistricting Board in Section 28 of its Article III, which section also made mandatory, and not merely permissive, said Board’s apportionment of ‘the State into senatorial and legislative districts agreeable to the provisions of Sections 25, 26, and 26-a of this Article III * * * In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment * * *’ That the Legislature disregarded the requirements of the Constitution making mandatory a division of contiguous territory according to the number of qualified electors, ‘as nearly as may be’ in enacting H.B.No.349, an act apportioning the State of Texas, to become effective 90 days after May 29, 1961, (i. e. date of adjournment of said Legislature). That thereafter the non-feasance of the members of the Legislative Redistricting Board of Texas thereby permitted the 57th Legislature to arrogate unto itself an immunity from the requirements and guarantees of the Constitution of Texas which does not provide for, contemplate, or permit such disproportionate representation in the legislative bodies of the State of Texas.
“V.
“That Section 10, of Article XVI of the Constitution of Texas requires there be made deductions from the salaries of public officers who may neglect the performance of any duty that may be assigned them by law. That the express obligations of Section 28 of Article III are duly assigned duties, for any such obligation imposed by the Constitution of a state is law, the most basic law of any. That the failure of past Legislatures to enact legislation to implement the provisions of Section 10 of Article XVI of the Constitution of Texas does not limit the jurisdiction and application of said provision by this court, as a constitutional provision is self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, and the duty imposed may be enforced.
“VI.
“That the elimination of the existing disproportionate representation cannot be effectively accomplished in time for the 1962 general election, and must undoubtedly now await the attention of the 58th Legislature and/or the new Legislative Redistricting Board, the membership of both to be elected in the 1962 general election. That the present members of the Legislative Redistricting Board have failed completely to perform an important duty specifically assigned to them, and are now unable to perform that important duty of apportionment agreeable to the provisions of the Constitution.”

Appellant sought a temporary injunction solely upon the allegations in his sworn, petition. A hearing was held on such application after which an order was entered denying appellant a temporary injunction. This appeal is from such order.

Prior to the hearing, appellee filed a sworn denial of the facts alleged by appellant in his petition.

Sec. 25 of Art. Ill of the Texas Constitution, Vernon’s Ann. St. provides the manner in which the State shall be divided into Senatorial Districts. Sec. 26 and Sec. 26a of this Article provide the manner in which members of the House of Representatives, shall be apportioned among the several counties. Sec. 28 of Art. Ill provides, in part:

“Sec. 28. The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislative Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall con-stitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission to perform its duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law.”

Sec. 10 of Art. XVI of the Texas Constitution provides:

“§ 10. DEDUCTION FROM SALARY FOR NEGLECT OF DUTY
“Sec. 10. The Legislature shall provide for deductions from the salaries of public officers who may neglect the performance of any duty that may be assigned them by law.”

It is by reason of this latter constitutional provision that appellant contends that he is entitled to the relief sought in this case. It is our opinion that this is an erroneous contention.

Sec. 10 of Art. XVI, supra, very plainly provides that the Legislature “shall provide for deductions” from salaries of public officers who neglect the performance of duties assigned them by law. The Legislature has not so provided. Until it does so, there is no authority for any such deductions to be made.

Appellant contends that this provision of the Constitution is self executing and that no enabling legislation is required. We do not agree for two self evident reasons. 1. This Constitutional provision very plainly states that enabling legislation shall be enacted. 2. Without enabling legislation there is no guide as to either the amount or duration of deductions to be made. No Court has the authority to perform this legislative prerogative.

The judgment of the Trial Court is affirmed.

Affirmed.

      . We take judicial notice that the Honorable Will AVilson and the Honorable James Turman are no longer Attorney General and Speaker, respectively.


author: FRASER, Justice.

text:
    W. W. (Woody) HEIDELBERG, et ux., Appellants, v. Arthur HARVEY et al., Appellees.
    No. 5573.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1963.
    Rehearing Denied April 3, 1963.

      Leonard Howell, Midland, for appellants.
    Deaderick & McMahon, Robert B. Cox, Odessa, for appellees.
   FRASER, Justice.

This is an appeal by appellant and wife from a judgment holding and declaring that a temporary restraining order, previously issued against appellants in favor of appel-lees, was rightfully and properly issued and valid in all respects.

The facts are as follows: In 1951 N. L. Heidelberg, father of appellant, granted to appellees a pipeline right of way or easement over the land involved. This pipeline was for the purpose of carrying water, and the grant carried with it the provision that the grantor and his successors in ownership should have water for household use and stock watering; that appellees should have the right to use the right of way until they abandoned same; and lastly, that the consideration of $10.00 was to include any damages to growing crops by reason of ap-pellees’ operations under the easement.

Cora Maude Jackson Heidelberg died intestate November 12, 1950, and left surviving her N. L. Heidelberg and eight children. N. L. Heidelberg executed the easement in question January 23, 1951 and himself died intestate several weeks later. The appellees later filed a verified petition asserting that they had decided to abandon the water line and had contracted to sell the pipe to some parties in Louisiana, and had further contracted with another company to take up the pipe. They allege that when they attempted to remove the pipe they were prevented by Mrs. Heidelberg, one of the appellants herein. After the Heidelbergs’ refusal to permit them to go on the premises to take up the pipe, they filed the above-mentioned petition alleging that they would suffer irreparable damage and loss because of not being permitted to take up the pipe immediately, and that such refusal would put them in default of their contract with both the purchasing company and the company employed by them to take up the pipe. They also alleged damage and deterioration to the pipe if left in the ground. On this basis, as well as the terms of the easement, they filed the said verified petition and were granted a temporary restraining order restraining the Heidelbergs, who were in occupancy, from preventing them or their agents from taking up the pipe. The pipe was promptly taken up and a hearing was then held, evidence and briefs being submitted on the question of whether the trial court should grant a temporary injunction and whether he had wrongfully issued the temporary restraining order. From his action finding that the temporary restraining order was not wrongfully issued, this appeal is taken.

Appellants contend that N. L. Heidelberg did not have the right to issue and grant the easement because the land involved had been acquired by Mr. and Mrs. N. L. Heidelberg during their marriage and Mrs. Heidelberg had died intestate leaving eight children and her husband surviving her; and therefore, the easement being invalid, appellees had no right to send their agents on the property and to take up the pipe.

Appellees argue that N. L. Heidelberg had the right as community survivor, where the presumption of community debts exists, to grant this easement. Davis v. Magnolia Petroleum Co., 134 Tex. 201, 134 S.W.2d 1042 (S.Ct.); Buckner Orphans Home v. Maben, 252 S.W.2d 726 (Tex.Civ.App., no wr.hist.) ; 4 Southwestern Law Journal 232. Appellees also contend that they established a prima facie right to the temporary restraining order by the facts alleged in their verified petition along with the presumptions arising by operation of law. Hensel v. Kegan, 79 Tex. 347, 15 S.W. 275 (S.Ct.) ; 23 Tex.Jur.2d 168, ¶118. We do not feel it necessary, however, to pass on these questions, as we feel that the fact picture is decisive of the law questions involved.

It will be noted that Mr. and Mrs. Heidelberg, the original owners and parents of the eight children, died within several months of each other. Mr. Heidelberg executed this easement after his wife’s death and then died a few weeks later. Both parties died intestate. The record shows that the pipeline remained on the premises for over ten years and that children of Mr. and Mrs. Heidelberg used the water from the line for household purposes and for stock watering. It is in the record that they always knew about the line being there, although appellants here deny knowing the terms of the easement. It is clear, however, that they laid their own line to connect with this water line and had been using water at the house for over ten years. It must be further noted that a judgment of partition was entered into disposing of the property of Mr. and Mrs. Heidelberg among the surviving children. This judgment was entered September 29, 1951, which was shortly after the easement was granted and Mr. Heidelberg had died. We are therefore confronted with the fact that these children, including appellants, occupied the premises in question for over ten years and never made any objection to nor inquiry about the pipeline until 1he incident leading to this lawsuit came up. As to their knowledge of the easement, it must be remembered that this easement was duly recorded in Volume 135, pages 601-602 of the Deed Records of Midland County, the county wherein this land is situated; that the various children of Mr. and Mrs. N. L. Heidelberg did enter into a partition judgment to settle the estate of their parents, and it would seem probable that in addition to constructive notice, they would likely have had actual notice of the terms and conditions under which this pipe went across their property, by virtue of the recorded easement. We feel, therefore, and must hold that the long-continued use of water from this pipe, and acceptance of all the benefits of this easement contract by the descendants of the two parents who died intestate, constituted ratification on the part of said descendants. The very fact that the pipe was there, the children knew it and used the water therefrom, and the fact that the easement contract was duly and properly recorded in the proper county, all constitute estoppel preventing appellants from claiming that it is an illegal easement. Appellees also urge— and we agree — that such continued use constitutes prescriptive easement because their possession was for ten years under all the necessary elements. We believe that by their actions the appellants, along with the other descendants of Mr. and Mrs. N. L. Heidelberg, were estopped from denying the legality of this easement, and had in fact, by their long use and acceptance of benefits thereunder, ratified the easement granted by their father. Again we point out that they had secured a judgment of partition a few months after their father’s death. Appellees cite the case of Old River Co. v. Barber, Tex.Civ.App., 210 S.W. 758 (error refused), as authority for their position or contention of ratification and/or estoppel. The record further illustrates that appellees made many requests for permission to take up their pipe, but in each instance Mrs. Heidelberg refused to grant such permission. Appellees then secured the restraining order.

For the reasons set forth above we believe that the trial court — endowed as he is with a wide range of discretion in matters of this sort — did not abuse his discretion in allowing appellees to take up their pipe and abandon the line in accordance with the terms of the easement granted in January, 1951 by Mr. N. L. Heidelberg.

Appellants’ points are therefore overruled, the judgment of the trial court is affirmed, and appellees’ motion to dismiss is overruled.


text:
    The TEXAS STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS, Appellant, v. Homer TRIMBLE, Appellee.
    No. 5603.
    Court of Civil Appeals of Texas. El Paso.
    March 6, 1963.
    Rehearing Denied April 3, 1963.
    Joe B. McMaster, Georgetown, Will Wilson, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellant.
    John R. Lee, Kermit, T. H. Neel, Mona-hans, Ziesenheim & Sutton, El Paso, for appellee.
   FRASER, Justice.

This is an appeal from a summary judgment granted against appellant, Texas State Board of Registration for Professional Engineers, hereinafter called “Engineers’ Board”. The Engineers’ Board, after due notice was given to appellee, Homer Trim-ble, held a hearing in Austin, Texas, which resulted in the revocation of Homer Trim-ble’s engineering license. This order was appealed to the 109th Judicial District Court of Winkler County, Texas, which subsequently entered the summary judgment against appellant. Appellant duly perfected its appeal.

As appears above this is a summary judgment case, and appellant maintains there was not sufficient evidence to warrant the court’s reversing the action of the Board of Engineers, and further, that a fact question was produced making the rendition of a summary judgment improper. In his petition the plaintiff maintained-that he was not given an opportunity to properly defend himself before the Board, and that there was insufficient evidence to warrant the Board in revoking his license. The Attorney General for the State of Texas, replying on behalf of the Board, alleged that the Board acted in accordance with legal and regular procedure in every way, and that its order of revocation was based on sworn affidavits of the Mayor and a City Councilman of the City of Kermit. The answer further alleged that plaintiff-appellee had attempted to bribe members of the City Council of Kermit so that they would award him certain engineering contracts to be let by the said City. In addition to these pleadings there was an affidavit submitted by plaintiff in support of his motion for summary judgment. This affidavit asserts that the affiant, Robert Ziesenheim, an attorney, was present and in attendance at the hearing held by the Texas State Board of Registration for Professional Engineers; that Homer Trimble, the plaintiff, was not personally present during the hearing, and that there was no evidence presented to show that the Homer Trimble whose license was under attack was the same person alleged to have been guilty of misconduct in the practice of engineering because of acts committed in the vicinity of Kermit, Wink-ler County, Texas.

It is immediately obvious that the evidence or material presented in the affidavit was not alleged in plaintiff’s petition, and that plaintiff, therefore, was attempting to raise an affirmative defense for the first time in a summary judgment proceeding. This, we think, is improper, and appellant’s Point No. 2 thereunto appertaining is accordingly sustained. Freeberg v. Securities Inv. Co. of St. Louis, Tex.Civ.App., 331 S.W.2d 825; Dingman v. Commercial Insurance Co., Tex.Civ.App., 333 S.W.2d 706.

It has been definitely held and established that the movant in a summary judgment proceeding must present sufficient evidence to warrant the trial court in granting such judgment. Freeberg v. Securities Investment Co. of St. Louis (supra). Here we do not think this was done, as we have no statement of facts to go on, and the only evidence presented to the trial court that we can pass on consists of the two pleadings and the affidavit mentioned hereinabove. It does appear from the transcript, by affidavit attached to motion for new trial, that appellant tendered some character of affidavit, but that the district clerk refused to file same and the trial judge refused to accept it or permit the clerk to accept or file same. There is no evidence in the transcript, or elsewhere, as to why the appellant’s controverting affidavit was not accepted by the clerk or the judge. We do not think that there was enough evidence presented by either party to warrant the trial court in taking any action whatsoever. The Board of Engineers is a regularly constituted body sitting in Austin, and we do not believe that there was sufficient evidence presented to the district court to warrant its action in overturning the Board’s decision, especially in a summary judgment proceeding. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

It has also been held that where evidence extrinsic to affiant’s statements is relied upon, it must be exhibited in full with the affidavit. There is no evidence here whatever, other than the affidavit itself — and certainly no extrinsic evidence— to support or sustain appellee’s affidavit that there was no evidence presented to the Board to the effect that the Homer Trimble whose license they were considering was the same person alleged to have been guilty of misconduct at or near Kermit, Texas. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Section 17.26, Summary Judgment, article B II, p. 1387, Vol. 4 McDonald, Texas Civil Practice.

Lastly, it is apparent that if — in any case or under any conditions — the affidavit of the plaintiff-appellee (which merely states that affiant was present and that no evidence was presented to prove that the Homer Trimble alleged to have been guilty of misconduct in Kermit, Texas was the same person whose license was under attack at the meeting of the Board, and does not speak further — in other words, does not deny the presentation of evidence of misconduct, etc.) could be considered or held to be sufficient to warrant the consideration of the summary judgment, then such affidavit, in our opinion, merely creates a question of fact. In other words, given its fullest effect before the trial court, this affidavit raises the question of the identity of the man, Homer Trimble. This is a fact question. If the affidavit is inadequate, then there is no evidence other than the pleadings before the trial court.

If the affidavit be sufficient, it defeats a summary judgment because it raises a fact question. If it be not sufficient, or not properly before the court by virtue of the matters set forth above, such as speaking about extrinsic matters not within the pleadings, then there was insufficient evidence before the court to render a summary judgment, as pleadings alone are not enough. Box v. Bates, supra.

We do not cite further authorities or statutes because this matter has been so thoroughly discussed and adjudicated that we think it unnecessary to burden this opinion with additional authorities.

For the reasons set forth above, appellant’s first two points are in all things sustained. This renders it unnecessary to discuss appellant’s third point.

The judgment of the trial court is accordingly reversed and the cause remanded.


author: DIXON,, Chief Justice.

text:
    E. Nuel CATES, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
    No. 16111.
    Court of Civil Appeals of Texas. Dallas.
    March 1, 1963.

      Marvin G. Shwiff and Vernon Kelly, Dallas, for appellant.
    W. B. Handley and Earl Luna, Dallas, for appellee.
   DIXON,, Chief Justice.

This is an appeal from a summary judgment in favor of appellee Continental Casualty Company, defendant in the trial court. The judgment will be affirmed.

In December 1960 appellee issued its hospitalization, medical and surgical policy to appellant. In May 1961 appellant had an operation for hernia and incurred expenses amounting to $624.25. Appellee declined to pay appellant’s claim. Instead appellee sent appellant a draft dated May 9, 1961 for $51.60, the amount of premiums appellant had paid. On the back of the draft was the following paragraph:

“Received of Continental Casualty Company the sum of $51.60 in full refund of all premiums paid under Policy No. 2111920, issued by said company, which is hereby surrendered as null and void from date of issue.”

Beneath the paragraph was a line for signature.

Appellant kept the draft until July 24, 1961, when he cashed it after he signed his name on the line for signature. He had already complied with the terms of the endorsement by surrendering the policy to the Company.

On August 3, 1961 appellant sued appellee for $624.25, the amount of his expenses. In his petition he admits that he received and cashed appellee’s draft for $51.60 representing a return of the premiums paid, but alleges that he did so under the impression that it was a partial payment of his claim. He also pleads a tender to appellee of the amount of the draft.

Appellee answered, alleging that the signed paragraph on the back of the draft constitutes an agreement and release; that by signing said agreement and release, cashing the draft and returning the policy appellant had entered into an accord and satisfaction; and as a result appellee was not liable under the terms of the policy, which had been cancelled and declared null and void by agreement of the parties.

Appellee also pleads in the alternative that the condition for which appellant was hospitalized and treated existed prior to the date of the policy.

In an affidavit filed in answer to appellee’s motion for summary judgment, appellant alleges that he “believed said check to be either a partial payment of claim or dividend * * * ”.

In two points on appeal appellant contends that the court erred in (1) holding as a matter of law that an accord and satisfaction was reached between the parties; and (2) in rendering summary judgment, since there was a genuine issue of fact raised by the pleadings and affidavit of appellant.

In support of his contention appellant says that his claim under the policy is liquidated and undisputed,, therefore his acceptance of a payment less than the full amount is not binding on him for the reason that it lacks consideration. 1 Tex.Jur.2d 218.

Appellant’s position is untenable. From the plain language of the paragraph on the back of the draft we must hold that the $51.60 was not tendered by appellee as part payment of appellant’s claim under the terms of the policy. It was tendered and offered as a return of all premiums paid by appellant in repudiation and cancellation of the whole policy. This offer to cancel or rescind was accepted and became a contract when appellant signed the endorsement, cashed the draft, retained the proceeds and returned the policy to appellee.

Parties who are competent to enter into an initial contract may enter into a subsequent agreement to rescind the initial contract and under the circumstances presented here the agreement to rescind is supported by a consideration and is binding. Slaughter v. Temple Lumber Company, Tex.Civ. App., 307 S.W.2d 108, 114-116; Campbell v. Hart, Tex.Civ.App., 256 S.W.2d 255, 260-261; Oilbelt Motor Co. v. Hinton, Tex.Civ. App., 11 S.W.2d 338; Nations v. Williams, Tex.Civ.App., 203 S.W. 1176; McKinney v. E. F. Rowson, Tex.Civ.App., 146 S.W. 643; Mayes v. Miller, Tex.Civ.App., 118 S.W. 725; 13 Tex.Jur.2d 601; 17 C.J.S. Contracts § 387, p. 879 ; 2 Black, Rescission & Cancellation, 1231.

It is not alleged by appellant that fraud, accident, duress, or mutual mistake were in any way involved in obtaining his endorsement under the quoted paragraph, or in causing him to cash the draft, or in inducing him to return the policy to appellee. The paragraph in question is plain and unambiguous. In the face of these undisputed facts no fact issue is raised by appellant’s affidavit that he “believed said check to be either a partial payment of claim or dividend.” The language of the instrument must be held to speak the intention of the parties. Prichard v. McKenna, Tex., 350 S.W.2d 333; Standard Accident Ins. Co. v. Knight, Tex.Civ.App., 267 S.W.2d 227, 230; Jones v. Winter, Tex.Civ.App., 215 S.W.2d 654, (Syl. 5) ; Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226, 227; Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115; Moore v. Studebaker Bros. Mfg. Co., Tex. Civ.App., 136 S.W. 570, 573-574; 13 Tex. Jur.2d 290-292.

Moreover appellant in his deposition indicated that he understood that his paid premiums were being returned to him and the policy cancelled. We quote his testimony:

“Q Tell me what you remember about the circumstances of this draft?
“A Other than the agent walked in and handed it to me and said, ‘This is your payments’; and that the policy had been cancelled and that the company was returning certain monies to me — ■
“Q Premiums ?
“A (Cont’d) — Premiums; and then that was it.”

The summary judgment was proper. Appellant’s two points on appeal are overruled. The judgment of the trial court is affirmed.