author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASS’N v. S. T. GATSON.
    No. 6580.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1963.
    Rehearing Denied April 17, 1963.

      E. A. Lindsey, Newton, Garrison, Ren-frow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Barber & Seale, Jasper, Joe H. Tonahill, Jasper (amicus curiae brief), for appellee.
   STEPHENSON, Justice.

This is an appeal from the judgment of the trial court awarding plaintiff 104 weeks of total disability under the Workmen’s Compensation Law. This judgment was based upon a jury verdict. The parties will be designated here as they were in the trial court.

Defendant contends first that there was no evidence to sustain the findings of the jury that plaintiff was an employee of C. N. Bishop, and that plaintiff was not an independent contractor. Defendant had denied that plaintiff was an employee of defendant’s insured, C. N. Bishop, and alleged that plaintiff was either an independent contractor, or an employee of Mathew Gatson, an independent contractor, and plaintiff’s father. The question as to “no evidence” is a question of law and is to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence.

In order to recover under the Workmen’s Compensation Act, the burden of proof is upon the plaintiff to show that he was an employee of C. N. Bishop, at the time of the accident. Shannon v. Western Indemnity Co., Tex.Com.App., 257 S.W. 522. By law it is provided that: “ ‘Employee’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written * Article 8309, Sec. 1, Vernon’s Ann.Civ.St.

The crux of this case is to determine who has the right to the general control of the details of the work necessary to accomplish the result contemplated by the contract. The Supreme Court made a clear statement as to the law in reference to this point in Halliburton v. Texas Indemnity Insurance Company, 147 Tex. 133, 213 S.W.2d 677, as follows:

“The supreme test in determining whether one is an employee or an independent contractor, according to our decisions and most of the modern cases, is the test with respect to the right of control.”

The proposition is also stated in Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449, as follows:

“The relation of master and servant exists, where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished, but as well, the means and details of its accomplishment; not only what shall be done, but how it shall be done.”

The evidence as to the contract of employment, which was oral throws little light on the question whether C. N. Bishop retained the right of control over the plaintiff. It becomes necessary in solution of the question to consider not only the terms of the contract when made, but also the evidence with reference to the control that was actually exercised, for it is relevant and admissible as tending to prove what the contract really contemplated. Lone Star Gas Co. v. Kelly, Tex.Com.App., 46 S.W.2d 656.

Mathew Gatson and three sons, including the plaintiff, S. T. Gatson, were engaged in cutting and hauling pulpwood at the time plaintiff received his injury. We find the following evidence favorable to the jury findings that plaintiff was an employee of C. N. Bishop and not an independent contractor at the time of such injury. The witness Mathew Gatson testified: C. N. Bishop asked him if he wanted to haul some pulpwood for him. That there were four in the crew hauling for Bishop, including the plaintiff. That they could not work for anyone else while hauling for Bishop. That Bishop told them the size to cut. That Bishop told them the kind of wood he wanted. “He told me haul pine one week, maybe three, four days, then tell me hardwood three or four days.” That Bishop told them when to haul. That Bishop told them where to load the pulpwood. That Bishop told him at the place of loading that he wasn’t loading high enough in the car. That Bishop came out to the place of loading and gave orders to each of them. That Bishop stopped them from hauling on one tract and started them on another, and did it often. That Bishop paid them $15.00 a cord for pine and $14.00 a cord for hardwood, and held out 50⅞⅝ per cord for insurance to take care of the men. That Bishop had the right to fire them, and did fire them. That from the date of the agreement between Mathew and Bishop in September, 1960, until after the date of the injury in December, 1960, they did not haul for anyone else. That Bishop told him where to get the wood during such time. When Bishop didn’t want wood cut they parked the truck.

The plaintiff testified: He was 26 years old and finished the 10th grade. That Bishop hired him to haul. That after he started hauling for Bishop he didn’t haul for anyone else. That Bishop told him where to haul. That some weeks Bishop told him not to haul and they parked the truck. That Bishop told him not to haul for anyone else. That Bishop told him and his father what to do. That Bishop told them how high to stack the pulpwood when loading. That Bishop told them what kind of wood to haul that day or that week. That Bishop told them to cut on a certain tract.

Checks were offered in evidence made payable to Mathew Gatson together with the stubs, and many of such stubs showing the amount paid listed under “salary”. That the same type of checks out of the same checkbook were issued to men, who Bishop admitted were his employees, as those given to Mathew Gatson.

Cross-examination of C. N. Bishop developed the following: The crews which were admittedly his employees, working on company land, owned their own trucks and saws and furnished their own gasoline for both, and Bishop did not tell them what time to go to work.

Considering all of this evidence favorable to the verdict, as this Court is compelled to do, the findings of the jury that S. T. Gatson was an employee of C. N. Bishop and not an independent contractor are supported by such evidence.

Defendant also contends there was insufficient evidence, and that the findings of the jury were so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. In determining these points, we must consider all of the evidence, both favorable to and contrary to the verdict.

The witness Mathew Gatson also testified to the following: He and his sons went into the woods in their own truck. That they provided their own gasoline. He and his sons owned their own saws and bought their own gasoline to operate the saws. That Bishop did not tell them what time to get to the woods or what time to quit. That Bishop did not tell them how many cords to cut a day, who was to drive the truck, or who was to run the saw. That Mathew Gatson and his sons decided what days to cut, and what days to load. That the check given in payment for their work included stumpage, and they had to pay the man for the stumpage out of their check. That Bishop did not tell them which route to take while hauling. That Mathew Gatson had been in the pulpwood business so long, no one had to tell him what size to cut. That a different price was paid by Bishop to them according to the distance hauled.

The plaintiff also testified as follows: That the checks issued by Bishop were never made out to the plaintiff. That he never saw Bishop in the woods, and Bishop told him what to do in his office in Evadale. That Bishop did not tell him what time to go to work, or what time to quit.

C. N. Bishop testified as follows: That he had a written contract with the East Texas Pulp and Paper Company to cut pulpwood upon company owned land and haul it to the mill. That he had his own employees to perform this work, and these employees were covered by Workmen’s Compensation insurance. That he would also get a purchase order for additional pulpwood, not covered by the written contract, and not to be cut from company owned land. That the men cutting for him under the purchase order were not supervised or directed in their work by him. That he did not go into the woods and supervise the details of their work. That the Gatsons did not produce any pulpwood from company owned land. That Bishop had an oral agreement with Mathew Gatson, and no agreement with any of the sons. That Bishop did not supervise the work in the cutting, trimming, sawing and hauling, except in the specifications for the wood. That he did not request Mathew Gatson and sons not to sell wood for anyone else. That he did not hold out money for Workmen’s Compensation or any other insurance for Mathew Gatson and his boys. That Bishop did not withhold any money from Mathew Gatson checks for social security, stumpage, insurance, or for anything. That all checks were made payable to Mathew Gatson. That Bishop did not know which tracts Mathew Gatson was cutting from. That the men which were admittedly his employees, cutting on company owned land, were im-der his supervision and direction. That Bishop went out and showed these employees what timber to cut. That he hired the men who owned the truck, and they arranged for their own crews. That on company owned lands there were certain specifications as to the stump heights, the timber that should not be molested and falling trees, not skinning up trees. That where it was delicate to get out of the woods, Bishop directed his employees as to the route they should take.

When all of the evidence is considered, it seems to us to show overwhelmingly that plaintiff was not C. N. Bishop’s employee. This case is controlled by the rule stated in Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905:

■“The courts of this State have repeatedly held that an employer has the right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee of such company.”

Applying the rules of law set out in the Southard case, and in the Security Union Ins. Co. v. McLeod case, supra, it is concluded that the various instructions given by C. N. Bishop to plaintiff and Mathew Gatson actually directed the end sought to be accomplished rather than the means and directed what should be done, rather than how it should be done. The instructions given as to the size to be cut, and the kind of wood to be cut, and where it was to be loaded and how high it was to be loaded in the car, and to haul from one tract or another, and similar orders, all must be construed as exercising such control over an independent contractor to accomplish the results contemplated by the parties.

Mathew Gatson testified that C. N. Bishop had the right to fire them, and could and did fire them. There is nothing conclusive about such evidence. The contract made between the parties was not for any specific time, and the testimony revealed that C. N. Bishop would tell Mathew Gatson, for example, that he needed 20 cords of pine this week, or 12 cords of hardwood. On cross-examination, Mathew Gatson testified that when Bishop fired them what he actually said was “He couldn’t use any more wood”. This testimony indicates the contract to supply the last order for wood had been completed, and no new contract was made.

Mathew Gatson testified that Bishop held out 5(⅛ per cord for insurance to take care of the men. This is not evidence of an employer-employee relationship as it is not customary for an employer to withhold money from an employee to pay Workmen’s Compensation insurance. There is no question of estoppel involved in this case as in Southern Underwriters v. Jones, Tex.Civ.App., 125 S.W.2d 393.

The testimony as a whole shows that C. N. Bishop did not go into the woods to direct the details of the work. Plaintiff testified that after Bishop showed them a tract to cut from, he never came back. Plaintiff also testified he never saw C. N. Bishop in the woods. The finding of the jury that plaintiff was an employee of C. N. Bishop was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

Reversed and remanded.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    William Doxey PLEASANT et al. v. Sidney M. JOHNSON et al. William Doxey PLEASANT et al. v. Kathleen Abbott FOX et al.
    Nos. 6609, 6610.
    Court of Civil Appeals of Texas. Beaumont.
    March 7, 1963.
    Rehearing Denied April 10, 1963.

      King, Sharfstein & Rienstra, Beaumont, for appellants.
    J. R. McDougald, Bell & Blair, John H. Land, Bill J. Sanders, Beaumont, for appel-lees.
   McNEILL, Justice.

This is a suit brought to set aside two instruments made between certain persons claiming to be heirs at law and devisees of the property of the Estate of Myrtle (Mertie) Bridgeman Pleasant. The suit was instituted by William Doxey Pleasant, Thelma Pleasant Smith and Lois Pleasant Simonton, individually and as administrators with will annexed of the Estate of Myrtle (Mertie) Bridgeman Pleasant, deceased, appellants, against Kathleen Abbott Fox and husband, F. N. Fox, W. T. Moore, Jr,, Hattie Moore Nolen, a feme sole, Hebert Moore, Sallie Ann Moore Schofield and husband, Noel Schofield, Carl W. Wall, Dr. William A. Smith, J. Welton Miller and wife, Flora K. Miller, Sidney M. Johnson, Sr. and wife, Grace A. Johnson, Alberdina Ruysenaars, a feme sole, Bruno A. Roll and wife, Clara Belle Roll, D. F. Sanders, Alto V. Watson, individually and as Independent Executor of the Estate of Emily Smith Watson, deceased, John Land and John P. Blair, appellees. Appellants alleged that they were the beneficiaries under the will of Ed J. Pleasant, the surviving husband of Mrs. Myrtle Bridgeman Pleasant; and that the defendants were claiming the title to the property of the said Ed J. Pleasant through two certain deeds or instruments set out below. It was alleged that the instruments sought to be set aside were not compromise settlement agreements but were merely partition deeds, and that since the appellees own no title to any part of the property their joinder in the partition deeds was without effect.

It was further alleged that all of the parties thereto mistakenly believed that the fee simple title to all of said lands and premises were in others than only and solely the said Ed J. Pleasant, or, in the alternative, the said Ed J. Pleasant at the time of the execution of said deeds mistakenly believed that the fee simple title to all of said lands and premises were in others than solely and only himself, for the reason that they, or, in the alternative, he did not know at said time that there existed a last will and testament of his wife, Myrtle Bridgeman Pleasant, devising to said Ed J. Pleasant fee simple title in and to said lands and premises and that he, the said Ed J. Pleasant, was the sole beneficiary under said will.

Appellees filed answers and cross-actions relying upon the instruments sought to be canceled by appellants. Both sides filed motions for summary judgment and after hearing thereon the Court sustained those of appellees and denied appellants’. Because of this, they appeal.

Appellants’ brief tersely and accurately summarizes the events leading to this lawsuit. We quote, therefore, from their brief:

“The winding course of events which has eventually led us here had its inception on January 14, 1922. For it was then that F. W. Bridgeman and1 his then -wife, Mertie Bridgeman, executed a joint will which was to rise again thirty-five years later under the guise of a binding contract. Thereafter, F. W. Bridgeman died on February 13, 1938. The will of January 14,1922, devising his entire estate to his wife, was probated. Mertie Bridgeman later married Ed J. Pleasant, and on December 17, 1949, they each executed separate wills in the offices of O’Fiel & O’Fiel at Beaumont. On August S, 1956 Mertie Bridgeman Pleasant died, and on September 11, 1956, her husband, Ed J. Pleasant, filed his oath as administrator of her estate apparently believing either that his wife’s will of December 17, 1949 had been revoked or simply having forgotten about it.
“But on March 5, 1957, the Bridge-man will of January 14, 1922, was filed for probate by appellee Hebert Moore as the last will and testament of Mertie Bridgeman Pleasant, contending that said will was joint and mutual as a binding contractual agreement between F. W. Bridgeman and his then wife, Mertie Bridgeman, and that by virtue thereof, he and appellee Kathleen Abbott Fox were entitled to share in Mrs. Pleasant’s estate as sole devisees under said will. This, even though said will unequivocally reads that their rights thereunder were contingent upon the simultaneous deaths of the Bridgemans.
“At this point, the relationship of the parties Appellee to Mertie Bridge-man Pleasant should be made clear. Kathleen Abbott Fox is the purported adopted (by estoppel) daughter. Hebert Moore is a brother. Hattie Moore Nolen is a sister. W. T. Moore, Jr. and Sallie Ann Moore Schofield are a nephew and niece respectively. Prior to August 8, 1957, these persons gathered in concern over the property belonging to Mrs. Pleasant at her death, most of which was her separate real property. And on this date — August 8, 1957 — they, their attorneys and Mrs. Pleasant’s husband, Ed J. Pleasant, individually but not as administrator of .his deceased wife’s estate, executed an instrument relative to said real property.
“Thereafter, on September 9, 1957, another such instrument was executed, again by Ed J. Pleasant only in his individual capacity and the above named persons with the exception of Kathleen Abbott Fox and husband, F. N. Fox, Hebert Moore and their attorneys, D. F. Sanders and Alto V. Watson.
“It is around these two instruments which this appeal principally revolves.
“On October 16, 1957 in the probate proceedings commenced by Hebert Moore re the old Bridgeman will, an order of the probate court was entered denying the probate of said will and adjudicating that Mertie Bridgeman Pleasant died intestate. Shortly afterward, on October 21, 1957, Ed J. Pleasant died.
“But this was not the end of the matter for on May 7, 1960 as one Ruth Holloman was cleaning the old Pleasant home on French Road in Beaumont, she discovered a worn envelope containing the will of Mertie Bridge-man Pleasant dated December 17, 1949. This will naming Ed J. Pleasant as sole devisee, was admitted to probate on July 22, 1960 and Appellants William Doxey Pleasant, Thelma Pleasant Smith and Lois Pleasant Simonton qualified as administrators cum testa-mento annexo.
“Thus by this unusual turn of events were the matters here in dispute conceived. It should be added that nowhere is there to be found any evidence of fraud or misdealings, nor has any such contention been raised.”

Additional facts will be set out under various propositions hereinafter discussed.

It is first contended by appellants that the instruments executed dated August 8, 1957 and September 9, 1957, were not compromise settlement agreements, but were mere partition deeds. The pertinent parts of the instrument of August 8, 1957 are:

"THE STATE OF TEXAS COUNTY OE JEFFERSON KNOW ALL MEN BY THESE PRESENTS:
“That Myrtle Bridgeman Pleasant (sometimes called Mertie Bridgeman Pleasant) resided in Jefferson County, Texas, during her lifetime, and until she died in Jefferson County, Texas, on August 5, 1956;
“and WHEREAS, the said Myrtle Bridgeman Pleasant was first married to F. W. Bridgeman who died testate in Jefferson County, Texas, on February 13, 1938 ;
“and WHEREAS, prior to his death the said F. W. Bridgeman and his then wife, Myrtle Moore Bridgeman, executed a joint and mutual will, in which said will the said Myrtle Bridgeman Pleasant caused to be filed for probate, and which was admitted to probate as the will of F. W. Bridgeman in Cause No. 6658 in The County Court of Jefferson County, Texas, to the record of which cause, the inventory and appraisement filed therein, and the minutes of said Court reference is here made;
“and WHEREAS, Hebert Moore and Kathleen Abbott Fox (nee Kathleen Abbott) were named in said joint mutual will as contingent legatees and devisees, and on the 5th day of March, 1957, again caused the said will to be filed for probate as the last will and testament of Mertie Bridgeman Pleasant and claim the entire estate of Myrtle Bridgeman thereunder; but the other parties hereto contend that the will filed for probate is not effective to pass title to any property;
“and WHEREAS, the said Hebert Moore, in addition and in the alternative to claiming as a legatee and dev-isee of the said will, also claims a part of said estate of Myrtle Bridge-man Pleasant as a surviving brother and heir at law;
“and WHEREAS, the said Kathleen Abbott Fox (nee Kathleen Abbott), and presently the wife of F. N. Fox of Wichita Falls, Wichita County, Texas, in addition to, and in the alternative to claiming part of the estate of Myrtle Bridgeman Pleasant as a legatee and devisee of said will also claims the principal portion of said estate under the allegation that she is the adopted daughter of F. W. Bridgeman and Myrtle Bridgeman Pleasant;
“and WHEREAS, Ed J. Pleasant claims that the major portion of the properties hereinafter conveyed constituted community property and that in any event he has homestead and general life estates thereto;
“and WHEREAS, in addition to the said Ed J. Pleasant as surviving husband, Hebert Moore as a surviving brother, and the said Kathleen Abbott Fox, Myrtle Bridgeman Pleasant left surviving her a sister, Hattie Moore Nolen, and the children of a deceased brother William T. Moore, Sr., to-wit: W. T. Moore, Jr. of Jefferson County, Texas, Sallie Ann Moore Schofield, wife of Noel Schofield of Cameron Parish, Louisiana;
“and WHEREAS, administration was granted on the estate of Myrtle Bridgeman Pleasant, Deceased in Cause No. 16428 in the County Court of Jefferson County, Texas, in which cause the said Ed J. Pleasant was appointed as, and duly qualified and remains as the administrator of the estate of Myrtle Bridgeman Pleasant, Deceased;
“and WHEREAS, more than one year has elapsed since the death of Myrtle Bridgeman Pleasant, Deceased, and the debts of said estate have been paid, and the administration is still pending but no longer necessary, except that conflicting claims exist between the above named persons as to the title to various properties hereinafter conveyed, and conflicting claims exist as to whether certain properties hereinafter conveyed constitute the separate estate of the said Myrtle Bridgeman Pleasant, Deceased,
“ — 2—
“or community property of Myrtle Bridgeman Pleasant and Ed J. Pleasant;
“and WHEREAS, the different persons claim different proportions of said estate and assert different claims to different properties herein conveyed ;
“but WHEREAS, all the persons above named who constitute or could constitute all of the heirs at law of Myrtle Bridgeman Pleasant, Deceased or the legatees and devisees under any will executed by her and not revoked before her death, have settled among themselves, and on the advice and with the assistance of their attorneys, their various conflicting claims to the estate of Myrtle Bridgeman Pleasant, Deceased, and the properties thereof, and all other properties herein conveyed, and now desire by this instrument to partition among themselves said properties, and in consideration of the premises and other valuable consideration by each acknowledged and confessed as received and as sufficient do, by the execution of this deed, hereby partition said properties among themselves ;
“NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
“That we, Ed J. Pleasant of Jefferson County, Texas; Mrs. Hattie Moore Nolen, a feme sole, the widow of A. L. Nolen, Deceased, of Harris County, Texas; John P. Blair, her attorney of record with assignment of interest of Jefferson County, Texas; W- T. Moore, Jr., the son of William T. Moore, Sr., Deceased, of Jefferson County, Texas, and Sallie Ann Moore Schofield, joined herein by Noel Scho-field of Cameron Parish, Louisiana, the adopted daughter of William T. Moore, Sr., by decree of adoption out of the District Court of Jefferson County, Texas, in Cause No. 14357-C, and John Land their attorney of record with assignment of interest of Jefferson County, Texas, for and in consideration of the premises and for valuable consideration, receipt and sufficiency whereof is acknowledged have GRANTED, SOLD and
“ — 3—■
“CONVEYED, and do by these presents GRANT, SELL and CONVEY unto Kathleen Abbott Fox, the wife of F. N. Fox of Wichita Falls, Wichita County, Texas, as her separate property and estate, to her attorney of record with assignment of interest, D. F. Sanders of Jefferson County, Texas, to Hebert Moore and Alto V. Watson, attorney of record with assignment of interest, both of Jefferson County, Texas, the following described property situated in Jefferson County, Texas, in the D. Choate League, and more particularly described as follows, to-wit:”

Then follows description of various tracts of land of Mrs. Pleasant’s estate. Ordinary habendum and warranty clauses follow, except the warranty is qualified by the expression, “by, through or under us, but no further.” Then follows conveyance of like import from Kathleen Abbott Fox and husband, and D. F. Sanders, their attorney with assignment of interest, and Hebert Moore and Alto V. Watson, his attorney with assignment of interest, to Ed J. Pleasant, Hattie Moore Nolen, her attorney, John T. Blair, W. T. Moore, Jr., and Sallie Ann Moore Schofield, and their attorney, John Land, of several tracts of land of Mrs. Pleasant’s estate. Then follow the habendum and special warranty clauses similar to that above. We have studied carefully the contention of the Appellants that this is only a partition deed and not a compromise and settlement agreement. As bearing on the question, we have also considered Exhibits D-2, D-3 and D-4 attached to the motion for summary judgment of appellees. It is shown thereby that before the instrument of August 8 was executed that there were considerable negotiations conducted between the parties represented by their various attorneys looking toward settlement and adjustment of their mutual claims to the Estate of Myrtle Bridgeman Pleasant. Exhibit D-2 is a two-page sheet which indicates what recovery of the property would result under various conditions of jury findings and also contained an analysis of settlement proposal made by D. F. Sanders and Alto Watson, attorneys for Kathleen Abbott Fox and Hebert Moore. Exhibit D-3 is an outline of a later proposal for settlement between the parties and indicated the difference between the first proposal and the second. It is also clearly reflected that these settlement negotiations developed into three factions as follows:

“(1) Kathleen Abbott Fox, the purported adopted daughter of the decedent, Myrtle Bridgeman Pleasant, and Hebert Moore, the brother of the said decedent, representing one faction;
“(2) Hattie Moore Nolen, the sister of the said decedent, and W. T. Moore, Jr. and Sally Ann Moore Schofield, the nephew and niece of the said decedent, representing another faction; and,
“(3) Ed J. Pleasant, the surviving husband, representing the third faction.”

Exhibit D-4 sets out clearly what the set-lement of the property would he as between the second and third factions just mentioned.

Attached to the affidavit of appel-lee John H. Land is a copy of Preliminary Settlement Agreement made between all the parties dated May 16, 1957. This was the basis for the two formal instruments executed August 8th and September 9th. Unquestionably, Ed J. Pleasant knew that his wife had, on December 17, 1949, executed a will leaving him all of her property. We believe that under the language of the August 8th agreement it was intended there should be a full, final and complete settlement between the parties taking into consideration any and all purported wills that might exist as having been made by Myrtle Bridgeman Pleasant. The above facts, no doubt, indicate clearly such contentions on the part of the various persons involved with reference to their rights in Mrs. Pleasant’s estate. The object of the instrument of August 8, 1957, was to compromise and settle all the various contentions and claims of the parties. We, therefore, hold that said instrument was not a simple partition between one person owning the entire title and others having no title, as in Davis v. Agnew, 67 Tex. 206, 2 S.W. 43, 376. It is recognized that partition deeds are put in a special class by the decisions in this State. Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988. See, also, 4 Texas Practice, Land Titles, Lange, Sec. 464, pp. 319-321. The instrument of August 8, 1957 is not a mere partition, but is, in effect a family settlement which is a favorite of law and equity. Iden v. Ackerman, Tex.Civ.App., 280 S.W.2d 643 (W. R.). To the same effect are Camoron v. Thurmond, 56 Tex. 22, p. 34; Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757, 759. And although it turned out later that part of the contending parties had no title or right in the property involved, the circumstances must be measured as of the settlement date. Ibid.

It is asserted that, in using the word “partition” at various places in the instrument, this makes it a partition deed. But the instrument is not to be construed by the use of a particular word. It must be considered from its four corners and, in so doing, it is clearly a compromise instrument. It is also asserted that a compromise would have used words of quitclaim rather than warranty. The fact that the warranty was a special one indicates that the parties did not intend to defend the title to the portion given the others as against the whole world, as a general warranty would require. Appellants rely strongly on Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588. However, we think the cases are clearly distinguishable for the reason that the Court there said:

“There is nothing to indicate that the parties had in mind anything more than a completely effective dissolution of their partnership and a division of their jointly owned property. The contract was consummated by the execution of warranty deeds, the common and accepted way of partitioning lands voluntarily.”

Appellants say that whether or not the first instrument of August 8th is a partition, the instrument of September 9, 1957, is a pure partition and the rule of Davis v. Agnew, supra, applies. The September 9th instrument begins:

“WHEREAS, heretofore on August 8, 1957, the undersigned, along with Kathleen Abbott Fox, joined by her husband, F. N. Fox, D. F. Sanders, Hebert Moore, and Alto V. Watson, did join in the execution of a partition deed which consummated an agreed settlement of certain conflicting claims in connection with properties belonging to the Estate of Myrtle Bridgeman Pleasant, Deceased; and
“WHEREAS, under the terms of said partition deed the undersigned jointly received full title to certain properties of said Estate, all of which are fully described in said deed; and
“WHEREAS, the undersigned now desire to partition among themselves the properties received by them under the terms of said partition deed

Then follows a conveyance of certain lands involved from Hattie Moore Nolen and her attorney, John P. Blair, and W. T. Moore, Jr. and Sallie Ann Moore Schofield and John Land, their attorney, to Ed J. Pleasant which contained the usual habendum and special warranty clauses of like import as in the first instrument. Then comes a reciprocal conveyance of certain other lands by Ed J. Pleasant to the parties first named, with like habendum and special warranty clauses. While examination of the September 9th instrument alone would likely impress one as a partition, since it ties itself to the earlier instrument, it must be modified by and considered with it. It (the earlier instrument) was one between the 1st faction of claimants on the one side and the combined 2nd and 3rd factions on the other. The latter instrument was a completion of the settlement as between the 2nd and 3rd factions, and brought to fruition the settlement invisioned by the Exhibit D-4 and preliminary agreement dated May 16, 1957. This latter instrument is accordingly upheld as the concluding part of the settlement.

Appellants contend that all parties to the settlement were at the time of the settlement without knowledge of the 1949 will probated in 1960, that therefore a mutual mistake of fact existed, and that the settlement of the contentions of the parties was without legal effect. Otherwise stated, appellants assert that the parties did not realize Ed J. Pleasant was the sole owner of the lands embraced in this suit for the reason that they did not know at the time that said will existed. Appellees object to our examination of the record to ascertain whether such mistake exists since both sides have urged motions for summary judgment, and that consequently appellants are bound by a judicial admission that no material issue of fact exists. Appellees assert this proposition upon the holding in Childress County v. Sachse, Tex.Civ.App., 310 S.W.2d 414. We disagree with this holding. Without extending this opinion by a discussion of the question, we cite as supporting our position: Tigner v. First National Bank, 153 Tex. 69, 264 S.W.2d 85 (3); Walling v. Richmond, etc., Co., 2 Cir., 154 F.2d 780; Volunteer State Life Ins. Co. v. Henson (5th Cir.), 234 F.2d 535; 4 McDonald, Civil Practice, p. 1396.

Appellants urge that because the August 8th instrument did not expressly say that Pleasant was claiming the 1949 will existed this indicates that he was not making contention that it did. This is answered by the clause “and devisees under any will executed by her and not revoked before her death” in the paragraph immediately before the conveyances in said instrument. Only one will of Mrs. Pleasant is specifically mentioned in the instrument, that is, the claimed one executed by her as Mrs. Bridgeman in 1922. The fact that the word “any” modifies the word “will” in the quotation immediately above clearly indicates a complete disposition of the questions involved between the parties, whether known or unknown. In this quoted clause, let us also consider the words, “and not revoked before her death”. This means any will made by Mrs. Pleasant not canceled in some legal way by some act on her part. The only instrument specifically mentioned as a 'will in the first settlement agreement was a joint and mutual will dated 14th day of January, 1922 of Bridgeman and wife (Mrs. Pleasant). Bridgeman died in 1938 and this will was then probated as his will. By its terms it could be effective as the will of both spouses only in case Bridgeman and wife (Mrs. Pleasant) died simultaneously. If this condition occurred, then their property would have gone to Hebert Moore and W. T. Moore, Sr. Since the makers of this will died years apart, they could not be said to have died simultaneously. Only this condition could give life to such joint will as the will of Mrs. Bridgeman (Pleasant). Since the condition did not come to pass, it simply became functus officio. It was ineffective by virtue of its own provisions from the date Mr. Bridgeman died. Then how could the phrase “not revoked before her death” have application to it? The parties signing the August 8th instrument had other and broader contingencies in mind. No contention is made that the instrument as written was incorrectly done.

The only evidence in the record, in our opinion, which supports appellants’ position that Pleasant did not remember the 1949 will or thought it had been revoked by his wife was the oath he made September 11, 1956, as administrator in her estate. This oath stated “that Mrs. Mertie Bridgeman Pleasant, deceased, died without leaving any lawful will so far as I know or believe * * * ” Appellees object to our consideration of this oath upon the claim that it is hearsay and self-serving. If the oath is considered, it still would be insufficient to raise an issue of fact. Taken at face value it clearly indicates that on the date he made the oath Pleasant did not know of the existence of any will of his wife, although he knew and was present at the time the 1949 will was made. It is some evidence, though weak because remote, that he thought at the time he executed the settlement agreement no will of his wife existed. But if this is correct, it does not show that there was a mutual mistake; that is, that the other parties involved were under the same impression.

Generally, unless a mutual mistake exists, no right to rescind exists. 29 Tex. Jur. 707. It was said in May v. San Antonio & A. P. Townsite Co., 83 Tex. 502, 18 S.W. 959, 960: “A Court of Equity may grant relief in case of a mutual mistake, but not on account of one entirely unilateral, and in the absence of fraud.” Appellants refer us to several cases to show that where a party is mistaken as to his own private legal rights, equity will under certain circumstances relieve against a contract. On this point they cite Columbian Nat. Fire Ins. Co. v. Dixie Co-op Mail Order House (Com.App.), 276 S.W. 219. There all parties assumed and believed that another insurance company was liable pro-rata for the loss sustained by respondent. And a written settlement was made on this basis with nine insurance companies. It turned out later that the tenth company was not liable, and respondent was allowed to attack the settlement and recover an additional sum against the nine settling companies. In its opinion, 276 S.W. at p. 222, the court said:

“So that, if parties contract under a mutual mistake and misapprehension as to such rights, the result is that the agreement is liable tó be set aside as having proceeded upon a common mistake. The gist of the understanding of the parties to this settlement was that defendant in error held a valid insurance policy against the United Mutual Fire Insurance Company in the sum of $10,000, and upon this understanding the settlement was made.”

Altgelt v. Gerbic, Tex.Civ.App., 149 S.W. 233 is also cited. There both parties were ignorant of a certain city ordinance, and appellant being a lawyer, in whom the other had confidence, it was said that appellee having been misled by relying upon the former’s superior legal knowledge was entitled to rescind the contract. The other cases cited are of similar import.

When persons deal with land of a decedent, the title to which is in his name, they are charged with constructive notice of whether such decedent left a will; and if not, who were the decedent’s heirs at law. From negotiations held, the fact that Pleasant was given property of an agreed value of $58,000 of an estate worth $180,000 clearly would indicate where practically all of the estate was decedent’s separate property, that Pleasant was claiming under a later will which he was unable to produce.

It is our view that by language used in the instrument dated August 8, 1957 * * “Whereas, all the persons above named who constitute or could constitute all the heirs at law of Myrtle Bridgeman Pleasant, deceased or the legatees and devisees under any will executed by her and not revoked before her death, have settled among themselves, and on the advise and with the assistance of their attorneys, their various conflicting claims to the Estate of Myrtle Bridgeman Pleasant, deceased, * * * ”, the parties recognized the possibility that in dealing with the estate of the decedent the risk is run of a will appearing from one source or another, and while they cannot bind legatees and devisees not made parties to the instrument, it clearly appears that it was intended to put the question of title at rest as between the contending parties thereto. Atkins v. Womble, Tex.Civ.App., 300 S.W.2d 688. No intimation is made that fraud, overreaching, breach of confidence or other wrongdoing entered into the settlement negotiations and agreements. It consequently is upheld. Hunt v. Bagwell, Tex.Civ.App., 111 S.W.2d 312(2), (W.R.).

Innocent purchaser claim of Johnsons.

At the time appellees’ motions for summary judgment were sustained, the motion of appellees Sidney M. Johnson, Sr., and wife, Grace A. Johnson, to sever the suit as to them from the other appellees was granted; hence the consolidated case shown above. The court sustained this motion to sever for the reason that Johnson and wife claimed that they were bona fide purchasers for value of a portion of the land involved.

In addition to the motion to sever, Johnson and wife moved for summary judgment on the basis that they were bona fide purchasers. Their motion shows that the 20 acres purchased by them was conveyed first by the instrument of September 9, 1957, executed by Ed J. Pleasant conveying a larger tract out of which the 20 acres came to Hattie Moore Nolen, John P. Blair, W. T. Moore, Jr., John Land and Sallie Ann Moore Schofield, with provisions of specific warranty. By deed dated June 19, 1958, the recipients of title under the deed of September 9, 1957 conveyed the specific 20 acres involved here to ¡W. T. Moore, Jr. By deed dated September 20, 1960, for a full and valuable consideration, Moore conveyed the 20 acres to Johnson and wife. Attached to their motion for summary judgment is their affidavit to the effect that at the time of this purchase by them, they, Johnson and wife, had no knowledge of any claim being made by appellants in and to said lands, and had no knowledge of any claim of mistake having been made by appellants or their predecessors in interest. Ordinarily the testimony of an interested party only raises the issue. But here the affidavit of Johnson and wife is clear, concise and positive and not contradicted. Under these circumstances we accept the affidavit at face value. Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534. But appellants assert that since the will of Mertie Bridgeman Pleasant was probated by the County Court of Jefferson County before Johnson and wife purchased the 20 acres, they could not be in law bona fide purchasers for value of the tract. The case of Howth v. Farrar (5th Cir.) 94 F.2d 654, is cited in support of this contention. We think, however, there is a marked difference between the Howth case and the present one. In the former, deeds were not obtained by the purchasers from the de-visees in said will except Wm. E. Howth, Jr., who only had a life estate and died in 1930. In the present case Johnson and wife purchased from the sole beneficiary under the will of Mrs. Myrtle Bridgeman Pleasant which was probated in 1960. This conveyance was by warranty of the beneficiary limited to the phrase, “by, through or under him.” Appellants claim through and under their father, Ed J. Pleasant, deceased. They are, then, in no better position than their father. He could not attack the title that he warranted; neither may his heirs. 5 Tex.Practice, Land Titles, Lange, Sec. 745, p. 149. No notice was given of any contention that in making said deed of September 9, 1957, a mistake occurred, and Johnson and wife had paid full consideration for the land. Their title therefore should be protected. Ibid. It could well be added, as said by the Court in Apel v. Gallagher, Tex.Civ.App., 278 S.W.2d 527, that the probatt of the will of Mrs. Pleasant in 1960 merely served to establish the will, and its existence and genuineness and to give vitality to the prior conveyance of the land by Ed J. Pleasant. The same is true of the holding in Lutz v. Howard, Tex.Civ.App., 181 S.W.2d 869. Of what does the 1960 probate give notice? That Ed J-Pleasant was sole devisee in the will. Since he had already conveyed the 20 acres to-others, this confirmed their title. These circumstances would not put a reasonably prudent person on inquiry of a hostile-claim. 43 Tex.Jur. 672-4.

Since we conclude there exists no genuine issue of material fact, the judgments of the trial court in both cases, Nos. 6609 and 6610, are affirmed.


author: MASSEY, Chief Justice.

text:
    Gene LEDEL et al., Appellants, v. BILL HAMES SHOWS, INC., Appellee.
    No. 16423.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1963.
    Rehearing Denied May 10, 1963.

      Martin, Moore & Tackett, and Elvin E. Tackett, Fort Worth, for appellants.
    Simon & Simon, and Henry W. Simon, Fort Worth, for appellee.
   MASSEY, Chief Justice.

This case is an appeal from a temporary injunction. Until May 22, 1962, appellant Gene Ledel was general manager of the appellee, Bill Hames Shows, Incorporated. Concurrent with the resignation of said appellant he organized Gene Ledel Shows, Incorporated, also an appellant herein. A carnival and show equipment were purchased and appellants went into business in competition with appellee.

July 23, 1962, a suit was filed by appellee against the appellants for injunctive relief and damages. Following a hearing before the court a decree of temporary injunction was entered on September 5, 1962. It pro-liibited for a period of one year action on the part of the appellants, as follows: the soliciting or negotiating for the right to present a carnival or midway show at certain places during fairs, festivals, shows and expositions, to-wit: The San Antonio Livestock Exposition, Inc., at San Antonio; the Austin Stock Show at Austin; the Livestock Show and Rodeo at Mercedes; the Brady Jubilee at Brady; The Old Settlers Reunion at Round Rock; The Old Settlers Reunion at Leonard; the exposition, fair or location at McKinney previously played by appellee; the Old Settlers Reunion at Alvarado; The Red River Valley Fair at Paris; The Cooke County Fair at Gainesville; The East Texas Fair at Marshall; the West Texas Fair at Abilene; the Tri-State Fair at Amarillo; and the spot, fair or exposition at Palestine previously played by appellee. By proviso there was excepted from the operation of the temporary injunction any of the places named if and in the event the promotors of the spots, fairs, cities, locations or expositions thereat should ask for and receive competitive bids for putting on the kind of entertainment as to which appellants and the appellee were in competition, and appellants were expressly permitted to make bids in instances where such were asked for, and to enter into contracts to perform and to perform the same in instances where their bids were accepted.

Entry of the order of temporary injunction was conditioned upon appellee filing a $25,000.00 bond securing the appellants as required by law. Appellee filed the bond and the temporary injunction became effective.

The record reflects that there was reprehensible conduct by appellant Ledel in the manner by which he severed his relationship with appellee company, in statements made by him to those with whom he had formerly contracted and performed in behalf of appellee, and in other respects calculated to cause harm to appellee. Undoubtedly Ledel was derelict of his duty in certain instances where he refrained from contracting or attempting to contract in behalf of appellee, while in its employ. Such contracts would be to conduct carnivals and shows on dates one year from the time when carnivals and shows were being conducted for appellee by Ledel. On any trial of the merits the question for decision would not be the propriety of Ledel’s conduct while appellee’s employee, merely, but rather of the propriety of appellants’ doing business in competition with appellee, or attempting to, with those same persons and concerns theretofore accustomed to contract with the appellee, exclusively, who remained free to contract because Ledel had not theretofore concluded contracts with them in behalf of the appellee at a time when he was appellee’s general manager and as such in a fiduciary relationship with it. On the instant appeal from the order granting a temporary injunction we do not need to determine the question.

We have concluded that by the entry of the order granting the temporary injunction the appellee actually thereby obtained substantially all the relief which might be considered to have been properly obtainable on a final hearing. At least this is true with respect to that part of its cause of action which is purely equitable in character. In such an instance to award a temporary injunction is contrary to the general rule. Texas Foundries v. International Moulders & Foundry Workers Union, 1952, 151 Tex. 239, 248 S.W.2d 460, 464; Dallas Independent School District v. Daniel, 1959 (Tex.Civ.App., Dallas), 323 S.W.2d 639, 641. There are exceptions, but the case before us is not one in which any exception applies. Where that situation obtains and the whole object of the suit would be accomplished by the delay incident to an appeal, the trial judge should never grant a temporary injunction without at the same time arranging his docket so as to afford the defendants a trial on the merits without undue delay. Texas Foundries v. International Moulders & Foundry Workers Union, supra, 248 S.W.2d at p. 464.

Observable is the fact that appellee in this case is not founding its cause of action upon any contractual provision which bound Ledel to abstain from competition with appellee for any period, reasonable or not, but founds the premise for its 'right to-equitable relief upon the theory that competition from said appellants would be in. breach of trust of the fiduciary relationship existent during that period while Ledel was its general manager. It appears to us that competition from the appellants in the enterprise in which both appellants and ap-pellee are engaged would not involve the use by the former of any trade secrets, etc., constituting property or property interests belonging to the latter. Were property rights of appellee involved, wrongful invasion thereof by Ledel could serve as a basis for injunction. To resign from one’s employment and go into business in competition with one’s former employer is, under ordinary circumstances, a constitutional right. It is for such reason that many employers have sought recourse to contractual agreements with their most capable employees by which, as a condition of employment, they protect themselves for a reasonable time and within a reasonable area from such competition in the event the employer-employee relationships should be discontinued.

When we observe that over seven months have expired between the time the temporary injunction was entered by the trial court and the time this opinion is returned, plus the consideration of that additional time which will be entailed before even the judgment of this court might become final, the operation of the decree of temporary injunction will have substantially protected the appellee from competition by appellants (at the places where they were enjoined from competing) for a term which will approach the maximum reasonable time, whether or not it might be held that the granting of the writ of temporary injunction was improper. The period for which the writ was effective was one year. So far as we are able to ascertain, the trial judge did not provide for an early trial on the merits and no such trial has been held.

Our conclusion, therefore, is that the temporary injunction should be dissolved. In view of the operation of the same the main purpose of the suit (its equitable phase) has been accomplished without any trial on the merits. Therefore, to .grant it actually amounted to a determination of the parties’ rights without a trial. This is error which requires a reversal. James v. E. Weinstein & Sons, 1929 (Tex.Com.App.), 12 S.W.2d 959; Texas Foundries v. International Moulders & Foundry Workers Union, supra.

In their briefs the parties have devoted time to questions of law which go to a decision of the case on its merits on final hearing. These will not be discussed and •our statements herein made are not intended to indicate any opinion of the court were this an appeal after a trial on the merits. The appeal is not from an order granting such injunctive relief, but from an order of temporary injunction.

Judgment is reversed. The temporary injunction is dissolved.