author: GRISSOM, Chief Justice.

text:
    SAN ANTONIO NATURAL DEVELOPMENTS, INC., et al., Appellants, v. Flora SHIELD et vir, Appellees.
    No. 3945.
    Court of Civil Appeals of Texas. Eastland.
    June 4, 1965.
    Rehearing Denied June 25, 1965.
    Carter, Callender & Onion, San Antonio, for appellants.
    John O. Harris, Coleman, for appellees.
   GRISSOM, Chief Justice.

Flora Shield and husband sued San Antonio Natural Developments, Inc., Cen-tex Sand, Ltd., Orland Rene Von Pohl-mann et al in trespass to try title to certain land in Coleman County. Plaintiffs pleaded the ten and twenty five year statutes of limitation. In an additional count they alleged that, in November 1960, plaintiffs executed and delivered to Robert C. Flowers and others a lease on said land for the purpose of mining silica sand; that said lease had been assigned to Centex Sand, Ltd.; that all right and title conveyed thereby had terminated by reason of the failure of the lessees and assigns to comply with certain terms of the lease; that they had failed to pay the annual rental and to mine said land, which was required to keep the lease in force.

In a trial to the court, judgment was rendered awarding Flora Shield title and possession of the 223.4 acres. The court found in its judgment that said defendants had no title or interest therein and that the November, 1953 assignment of royalty to Von Pohlmann had terminated. The named defendants have appealed.

Von Pohlmann answered that he claimed an interest in said land created hy an assignment to him whereby he was vested with a royalty interest in all minerals produced from said land. He alleged there was due and unpaid on said royalty interest $2,082.45.

Von Pohlmann’s first point is that the court erred in holding that his right to collect royalty had terminated because the terms of his assignment were ambiguous and it should have been construed to convey the greatest estate consistent with the language used. Von Pohlmann points out that the assignment recites it was intended to cover all royalties reserved in any lease and was to be effective until its owner received $2500.00 “out of such royalties.” The instrument under which Von Pohl-mann claims he has the right to collect royalty until he receives $2500.00 recited that it assigned royalties to become due from any lease on a ten acre tract surrounding in the form of a square the British-American, Shield Well No. 1; that the grantee and his assigns were empowered “to collect the said royalty rights and benefits as the same shall become due and payable to lessee for same in grantors’ behalf” and directed the lessees to pay “such royalties and benefits” to the grantee and his assigns “whose receipt for same shall in all things be grantor’s receipt thereof.” It did provide that it was to be effective until the grantee or his assigns received $2500.00 “out of such royalties” whereupon the grantee should execute a release and reassignment of the royalties conveyed. But, said assignment expressly provided that it should “affect only those royalties, that are attributable to production of oil, gas or other minerals from that certain well known as the British-American, Shield No. 1 hereinabove mentioned.” As we understand the record, said British-American Shield Well No. 1 stopped producing and there were no further royalties attributable to production therefrom. British-American Oil Producing Company executed a release of said lease and filed a disclaimer herein. We think the court did not err in holding that Von Pohlmann’s right to collect royalties had terminated.

San Antonio Natural Developments, Inc. and Centex Sand, Ltd. answered plaintiffs’ suit with a plea of not guilty. They filed a cross action for damages which they alleged they suffered by reason of plaintiffs’ breach of a lease-option agreement. The court found that agreement had terminated. Said appellants contend the court erred in holding against them on their cross action for damages because the un-controverted evidence and stipulations established that plaintiffs breached the terms of the lease-purchase agreement and that as a result thereof they were damaged $67,474.77.

Centex Sand and San Antonio Developments contention is, in effect, that they conclusively established that appellee breached the contract; that the breach was material and said appellants were thereby justified, as a matter of law, in refusing to make the minimum monthly payments required by their contract after September, 1963; that appellees’ prosecution of their suit to clear title was not maintained within a reasonable time, nor with diligence, and, therefore said appellants, as a matter of law, were justified in refusing to make further minimum monthly royalty pay-merits and as a result of appellees’ breach of their contract said appellants were damaged $67,474.77, and, further, that there is no support for presumed findings favorable to the judgment. They say we should render judgment for said amount of damages.

Said appellants’ cross action is based on the theory that because of certain defects in appellees’ title they were prevented from financing development of the property. Appellees point out that abstracts covering the title were delivered to appellants’ attorney, one of the original lessees, prior to closing the transaction and, after he examined them, lessees closed the lease-purchase agreement and made the down payment; that the original lessees inspected the property on the ground and saw the city water tank on the land; that Flowers was the agent of appellants; that they were informed of an unreleased oil lease held by British-American Oil Producing Company and certain unpaid taxes; that when they inspected the property on the ground they decided that the unplugged, abandoned gas well would be useful to said appellants and that the easement for a water line owned by the city would also be to their advantage ; that said appellants and appellees entered into a supplemental agreement in December, 1961, wherein appellees agreed to file suit to clear the title and to confine the right of the City of Santa Anna to the boundaries of its easement; that such suit was filed; that said lessee filed a disclaimer and a release of the oil and gas lease was obtained and said city was restricted by the judgment to its known easement and said taxes were paid. We conclude that the court was justified in holding that appellees complied with their agreement and that appellants waived all prior defects. Furthermore, the court was not required by the evidence to find that the alleged defects in title prevented appellants from financing the project and caused the damages alleged. The evidence did not conclusively show that appellants suffered said damages because of such defects in the title.

The judgment is affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    L. R. THOMAS, Appellant, v. Dr. H. H. BECKERING, Appellee.
    No. 137.
    Court of Civil Appeals of Texas. Tyler.
    May 27, 1965.
    Rehearing Denied June 24, 1965.

      Otto B. Mullinax, Mullinax, Wells, Morris & Mauzy, Dallas, for appellant.
    James A. Williams, Bailey & Williams, Dallas, for appellee.
   MOORE, Justice.

This is a malpractice suit filed by L. R. Thomas, appellant, against Dr. H. H. Beck-ering, appellee. Appellant alleges that the doctor was negligent in treating a compound fracture to his right index finger causing a malformation. In substance, appellant alleges that after having attempted to reduce the fracture by a manual manipulation, the doctor thereafter negligently failed to x-ray the finger in order to determine whether the bones were properly aligned and also that the doctor negligently failed to apply traction on the finger so as to hold the bones in proper alignment while healing. He further alleged in the alternative that Dr. Beckering falsely represented to him that he had successfully secured a proper alignment and that in reliance upon this representation, he was prevented from securing further medical attention until the bones had healed to such an extent that it was too late to correct the condition and that as a result of the doctor’s misrepresentations, his right index finger healed in a malformed condition and was rendered useless. Dr. Beckering answered with a general denial and in addition thereto alleged that he had followed the approved techniques and procedures utilized generally by physicians in Dallas County, Texas, in the treatment of fractures and that the resulting condition of the appellant’s finger was not caused by any negligence on his part.

At the close of the testimony appellee made a motion for an instructed verdict alleging that appellant had presented no evidence showing that the doctor had failed to exercise that degree of care and caution which would have been exercised by a practicing physician of the same school of medicine in Dallas, Texas, in the diagnosis and treatment of the appellant’s injury and therefore failed to show that the doctor’s negligence, if any, was the proximate cause of the plaintiff’s injury and damage. The trial court granted the motion and withdrew the case from the jury and rendered judgment for the appellee, Dr. Beckering.

Appellant, L. R. Thomas, duly prosecuted his appeal and now brings forward three Points of Error contending that the trial court erred in granting judgment for ap-pellee and in holding that as a matter of law there was no evidence to raise a jury issue that appellee’s negligence proximately caused appellant’s injury and damage.

Because the court withdrew the case from the jury and rendered judgment, we must accept the evidence and the inferences to be drawn therefrom in a light most favorable to the appellant and disregard any contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60; Henderson v. Mason, 386 S.W.2d 879, (Tex.Civ.App.).

In substance, the facts show that on April 16, 1963, appellant’s right index finger was severely crushed while he was attempting to unload a piece of equipment known as a camper from the bed of a pick-up truck. He immediately reported to the offices of Dr. Earl Olmstead, who determined upon examination that appellant had suffered a severe crushing injury to the finger causing two extreme lacerations on the anterior lateral and on the posterior lateral aspect of the finger, measuring approximately two and one-half inches in length requiring same to be sutured; that the condition at that time was such that the doctor’s immediate concern was to save the finger rather than attempt to reduce the fracture. Dr. Olmstead splinted his finger and instructed him to report back in a few days; on the second visit Dr. Olmstead found the circulation to be extremely poor; it was infected and extremely swollen. He prescribed antibiotics for the infection and made only minimal attempts to reduce the fracture. He continued to x-ray the finger and give antibiotics until April 29, at which time he concluded that the tissue and the blood supply was adequate to maintain life in the finger and should be referred to the attention of an orthopedic surgeon. He directed appellant to Dr. George Sibley, an orthopedic surgeon in Dallas. On April 30 appellant reported to Dr. Sibley, taking Dr. Olmstead’s x-rays. Dr. Sibley advised that in view of the swelling and infection it would be necessary that appellant be confined to a hospital so that treatment could be administered to cure the infection and reduce the swelling prior to attempting a reduction of the fracture. On the same date, April 30, appellant was admitted to the Methodist Hospital. On May 3, he voluntarily left the hospital without the consent of Dr. Sibley and reported back to Dr. Olmstead, stating that he had left the hospital because he felt that Dr. Sibley was neglecting him. Dr. Olmstead recommended that he see another specialist. He then reported to Dr. Beckering, appellee herein.

Dr. Beckering testified that he first saw appellant on May 3, 1963; that upon examination he found that appellant had a severely injured finger; it was swollen, deformed, infected and the circulation therein was very poor; that after his examination there was some question in his mind as to whether the finger could be saved, but that he determined that it was worth a try. Although he did not make any x-rays on the occasion of this visit, he cleaned it and treated the same with chymar ointment so as to help combat infection and debride it; that on May 6 and 8 he again saw the appellant and applied a dry dressing because he was of the opinion that the infection was then under control. That on May 10 he x-rayed appellant’s finger and recommended a plan of treatment whereby he would try to manipulate the finger and thus place the bones in a better position and told appellant that if this failed, he would then put it in traction. Appellant consented to this course of action and was admitted, to Baylor Hospital on May 13 and was placed under a general anesthetic. Dr. Beckering testified that although he attempted to manipulate the bones of the finger in a better position, he was unable to place them in proper alignment because of the extreme swelling of the finger and therefore he concluded that under the circumstances a complete correction of the bone was not possible by-manipulation. He further concluded that the appellant was going to suffer from a stiff finger and that the best course of action was to manipulate the joints in such a manner so as to curve the finger downward toward the thumb so that the same would be usable to some extent rather than to have the same stiffen in a straight position. That he did so manipulate the joints and place them in a cast in this position; he testified that he did not move the fracture at all, but only bent the joints of the finger downward toward the thumb. He admitted that he did not x-ray the finger in the operating room to confirm the position of the bones, because he felt that he had not been able to change their position by manipulation. He testified that he told the appellant that he had not moved the fractured bones. Dr. Beckering testified that in view of the infection in the finger, he was unable to put the same in traction because he felt that the pin which would be necessary to place in the end of the finger would pull through the finger because of its infected and deteriorated condition. He further testified that on June S he x-rayed the finger and it showed a malposition of the fracture with healing taking place and that a comparison of this fracture with the picture made by Dr. Olmstead on May 10 showed the fractured bone to be in identically the same position; that by June 5 the new growth had formed between the fractured bone to such an extent that it would require breaking the bones into again in order to attempt to place them in better alignment.

Appellant called both Dr. Olmstead and Dr. Sibley as witnesses. A review of Dr. Olmstead’s testimony shows that his testimony relates only to the facts surrounding his treatment to the appellant. Nowhere in his testimony have we been able to find where he testified that Dr. Beckering did anything or failed to do anything that caused the injury of which appellant complains. Nor have we been able to find anything in the testimony of Dr. Sibley that would indicate that Dr. Beckering’s treatment caused the injury complained of by appellant. Although Dr. Sibley did testify that “one” of the standard methods of treatment of fractures was the application of traction, and that the standard method of treatment after reduction of a fracture required the use of an x-ray in order to determine whether the bones were in proper alignment, nowhere in his testimony have we been able to find where he testified the resulting malformation of appellant’s finger was caused by the failure to x-ray or to place the same in traction.

Appellant Thomas testified that Dr. Beck-ering advised him that he felt that he could reduce the fracture and bring the bones in proper alignment, but that the doctor also told him there was a possibility that the finger would be stiff, and in the event that it was stiff, he would place it in such a position that he would have some motion in it. Subsequent to the attempted reduction, he testified that the doctor told him he had gotten good alignment and that he would have a good finger; however, on June 5 when the doctor took the last x-ray, the doctor stated that the alignment was not too good, but that he, Thomas, was going to get out of the situation a lot better than he originally expected. He testified that he continued to rely upon Dr. Becker-ing’s assurance that he would have a good finger until June 3 at which time he got suspicious and went back to Dr. Olmstead for additional x-rays; that upon finding that these x-rays showed the bones were not in alignment, he consulted a Dr. Girard on June 5 and that on the same date he again visited Dr. Beckering, and since that date he has not tried to get other treatment. With these facts in mind, we now turn to the law.

It is well settled that the law entertains in favor of a physician, or surgeon, the presumption that he has discharged his full duty, and to overcome such presumption the law exacts affirmative proof, both of breach of duty and that such breach resulted in injury. Negligence, in such cases, is never imputed from mere results, nor can any inference of negligence be indulged against a physician or surgeon from the results. Floyd v. Michie, 11 S.W.2d 657, (Tex.Civ.App.); Phillips v. Wright, 81 S.W.2d 129, (Tex.Civ.App.), err. dism.

The same principle was restated by the Supreme Court in Bowles v. Bourdon, 148 Tex. 15, 219 S.W.2d 779, wherein the court stated as follows:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries. * * * ” (Citing cases.)

Accord: Christian v. Galutia, 236 S.W.2d 177, (Tex.Civ.App.) ; Henderson v. Mason, supra; Hart v. Van Zandt, 383 S.W.2d 627, (Tex.Civ.App.).

It is now a generally recognized rule that in malpractice cases, as in other actions based upon negligence, a plaintiff must plead and prove not only that he has been injured and that the defendant has been at fault, but also the causal connection between the two, and that expert testimony upon the want of care or skill is absolutely essential except in cases where the want of care or skill is so obvious as to be within the comprehension of a layman. Obviously, from the testimony hereinabove set forth, this cause does not fall within the exception to the rule.

Since the burden of proof is upon the appellant to prove both negligence and proximate cause in order to establish a cause of action, we do not undertake to decide the question of whether there is any competent evidence of negligence in appellee’s treatment of the fracture, but will pass to the issue as to whether there is any medical testimony showing that the treatment is the proximate cause of malformation of the appellant’s finger.

We have carefully reviewed all of the evidence as set forth in the statement of facts in a light most favorable to appellant and have been unable to find anything in the testimony of Dr. Olmstead or in the testimony of Dr. Sibley that the negligence, if any, in failing to apply traction or the negligence, if any, in failing to make additional x-rays immediately after attempting to reduce the fracture, either caused or contributed to cause the injury complained of by the appellant. In fact, there is a complete absence of any testimony upon the question of causation.

As pointed out before, appellant reported to Dr. Beckering some seventeen days after the injury. At that time there was some question as to whether the finger could be saved. It had been severely crushed; it was swollen, infected and the blood circulation was poor.

A physician is not responsible for the effects of the disease or injury, except insofar as they could have been avoided by proper treatment. Proof of proximate cause ordinarily involves the problem of distinguishing between the various causes suggested by the evidence.

In the case before us, we think it apparent from the evidence that there could have been two possible causes cooperating to produce the final result — one, the severe compound fracture, accompanied by infection, swelling and poor circulation; and the other, the alleged improper treatment. The burden is upon the plaintiff in a malpractice case to prove that the injury he complains of resulted from the negligent treatment and not the original injury. Barker v. Heaney, 82 S.W.2d 417, (Tex.Civ.App.) err. dism.; Phillips v. Wright, supra; Kootsey v. Lewis, 126 S.W.2d 512, (Tex.Civ.App.); Devereaux v. Smith, 213 S.W.2d 170, (Tex.Civ.App.); Connelly v. Cone, 205 Mo.App. 395, 224 S.W. 1011; 13 A.L.R. 2d 1.

“ * * * Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts. * * * ” Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498; Bowles v. Bourdon, supra,

Thus in the absence of any expert testimony on causation, the jury would be compelled to guess or speculate on the question of whether the malformation of the appellant’s finger was due to the fracture with the attendant complications, or whether it was due to malpractice. There being no evidence of causation, we therefore conclude that the action of the trial court in instructing a verdict for appellee was proper.

Appellant’s alternative plea alleges fraud on the part of Dr. Beckering in falsely representing to him that he had brought about a good alignment and that the two ends of bone had been moved in their proper place. Appellant testified that the doctor made such statement and that he relied thereon and did not seek other medical treatment.

Viewing the evidence in a light most favorable to appellant, as we are required to do, and assuming such statement was made and same was false, we are nevertheless of the opinion that the evidence does not disclose that there was any fraud committed which would give rise to a right of action independent of malpractice. Whether the cause of action be for malpractice or fraud, the element of causation is essential. In the case of fraud, there must be a causal connection between the statement and the damages sustained. Allison v. Blewett, 348 S.W.2d 182, (Tex.Civ.App.); citing Hayden v. Dunlap, 84 S.W.2d 306, (Tex.Civ.App.); 37 C.J.S. Fraud § 42, p. 296; 24 Am.Jur., p. 48, Sec. 218; 13 A.L.R.2d 1; See also Netzel v. Todd, 24 Ohio App. 219, 157 N.E. 405 (Ohio).

Appellant claims injury by reason of the false statement in that he was deprived of the beneficial effect of proper treatment, and but for such statement he would not have suffered injury. There was no proof showing that because of the false statement, appellant was caused to suffer a malformation of the finger, or that but for such statement, he could have secured another doctor who could have obtained a better result. Causation not having been established, an instructed verdict was proper.

For the reasons stated, appellant’s Points are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: FANNING, Justice. DAVIS, Justice.

text:
    Elsie G. JOHNSON et al., Appellants, v. BARNWELL PRODUCTION COMPANY et al., Appellees.
    No. 7595.
    Court of Civil Appeals of Texas. Texarkana.
    June 1, 1965.
    Rehearing Denied June 22, 1965.

      Jones, Brian, Jones & Baldwin, Scott Baldwin, Marshall, Robert Schleier, Foster T. Bean, Kilgore, for appellants.
    Sam B. Hall, Jr., William Huffman, Smith, Hall & Huffman, Marshall, James R. Strong, Long, Strong, Jackson & Strong, Carthage, for appellees.
   FANNING, Justice.

Elsie G. Johnson (who as found by the trial court went under various names, including the name L. C. Johnson) and L. E. Ostrom, as plaintiffs, on Aug. 21, 1959, in suit No. 20,635, sued Barnwell Production Company, Edward L. Green, Frank C. Green, Sr., Receiver, and many other named defendants, in the District Court of Harrison County, Texas, to recover title and possession to an undivided interest in four tracts of land, and to set aside and/or declare void a receivership proceeding had in Cause No. 20,378 in said court and to set aside, cancel and to declare void and/or voidable a certain oil, gas and njineral lease made by the receiver to Barnwell and seeking an accounting and other relief stated in plaintiffs’ pleadings.

On Jan. 24, 1959, in Cause No. 20,378, in said court, styled Edward L. Green v. L. C. Johnson, the District Court of Harrison County, Texas, appointed Frank C. Green, Sr., receiver of part of appellant Johnson’s undivided mineral interest pursuant to Art. 2320b, Vernon’s Ann.Tex.Civ.St., wjiich. statute is found below. The petition seeking the appointment of a receiver is quoted in part below. The order granting the application and appointing the receiver is quoted in part below. The receiver sold the lease in question to Barnwell Production Company for a cash bonus of $162.50, which was more than $25.00 per acre based on the undivided interest of the defendant L. C. Johnson as set out in the order, which interest of Johnson at that time was assumed to be ¾2⅛ of the first tract and a ½2⅛ of a Jiith interest in the second, third and fourth tracts. This assumed interest amounted to 6.393 acres and the proper payment for such an interest at $25.00 per acre would have been $159.82½. (The $162.50 was paid into the District Clerk’s office by the receiver as directed by the order.) It was determined later upon the trial of the case that Johnson’s interest in the first tract was correct but that he owned a ⅛⅛ of a ½1⅛ interest in the second, third and fourth tracts. The receivership lease in question also contained an inclusive clause known as a “Mother Hubbard Clause” which ostensibly covered all of Johnson’s interest. Barnwell drilled a commercial well on one of the tracts and unitized the acreage for development.

After observing the receivership lease in the Harrison County records in the latter part of January or the first part of February, 1959, the plaintiff-appellant L. E. Ostrom on April 3, 1959, purchased an oil, gas and mineral lease from plaintiff-appellant Johnson, after locating Johnson in Chicago, Illinois.

No motion was filed by plaintiffs-appellants to vacate the receivership judgment and the receivership judgment was not appealed from by writ of error. The receivership judgment was first attacked in suit No. 20,635 on August 21, 1959. Trial was to the court with the aid of a jury. (Plaintiffs suit for an accounting was severed and reserved for future decision.) The jury in response to the special issues submitted found to the effect as follows: (Issue No. 1) That Edward L. Green and those assisting him, if any, did not make a diligent effort to locate the plaintiff Johnson prior to Jan. 24, 1959; (Issue No. 2) that the lease from Frank C. Green, Sr., Receiver, to Barnwell Production Company on January 24, 1959, was not made for a grossly inadequate price; (Issue No. 3) that Edward L. Green would not have suffered substantial damage or injury by failure to appoint a receiver on January 24, 1959; (Issue No. 4) that Barnwell Production Company was the real party at interest in the proceeding of January 24, 1959; (Issue No. 5) that Barnwell Production Company caused said proceeding to be had in order to secure the lease on the property of the plaintiff Johnson; and (Issue No. 6) the conduct, if any, of Barnwell Production Company, did not constitute a fraud.

Both sides filed motions for judgment. The trial court rendered judgment mainly for the appellees, upholding the receivership proceeding and the receiver’s lease to Barn-well of Johnson’s ¾2⅛ interest in the first tract, and Johnson’s ¾2⅛ of ¾ith interest in the second, third and fourth tracts. Johnson’s remaining interest of ¾2⅛ of ¾1⅛ in the second, third and fourth tracts and Ostrom’s lease on said remaining interest of Johnson of ⅝2⅛ of Jiith interest in the second, third and fourth tracts were upheld and judgment therefor was rendered for appellants. Appellants Johnson and Ostrom have appealed.

Johnson heired his interest from his deceased wife, Charlie Mae Green, who died intestate in childbirth in 1934, in Tyler, Texas, (with her child being born dead) while married to Johnson. She had no other children. Charlie Mae Green was a sister of appellee Edward L. Green. Charlie Mae Green heired her interest in the property in question from her family antecedents.

A considerable portion of the trial was focused on proof of appellant Johnson’s first name. It appeared from evidence in the record that appellant Johnson had used the following names: Elsie Johnson, Elsa Johnson, Elsie Glover Johnson, Elsie G. Johnson, E. G. Johnson, Elsar J. Johnson, Elsar Joseph Johnson, Glover J. Johnson, Gloveer J. Johnson and L. C. Johnson, and other similar names. However, at the trial appellant Johnson testified that he had used the initials L. C. and that “all of those names are of one person”. Based upon ample evidence, the trial court expressly found (no issue having been submitted) with respect to this matter in part as follows : “ * * * and the Court finds, that the plaintiff L. C. Johnson is not a ficticious person, but is one and the same person as Elsie G. Johnson, Elzar J. (Joseph) Johnson, Glover (Gloveer) J. Johnson, Elsa Johnson, Gloveer Joseph Johnson, E. J. Johnson, G. J. Johnson, and Glover Johnson.”

Appellants contend that their attack upon the receivership judgment is a direct attack. Appellees contend that such attack is not direct, but is a collateral attack. For an excellent discussion of this problem we refer to an article by Professor Gus M. Hodges, entitled “Collateral Attacks on Judgments”, appearing in two sections in 41 Tex.L.Rev., beginning at pages 163 and 499, with particular reference to Part II, “Distinctions Between Direct and Collateral Attacks.”

The essentials of a Bill of Review are well stated by Justice Williams of the Dallas Court of Civil Appeals, in American Spiritualist Ass’n v. City of Dallas, Tex.Civ.App., 366 S.W.2d 97, no writ (1963) as follows:

“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.” (Emphasis added.)

The requirements for a bill of review in equity are also clearly stated in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950), which case also clearly states the distinction between “extrinsic” and “intrinsic” fraud.

The only case we have found decided under Article 2320b, V.A.T.C.S., is Scott v. Sampson, Tex.Civ.App., 333 S.W.2d 220, wr. ref., n. r. e. (1960), which involved a direct attack and not a collateral attack. We quote in part from the opinion in said cause as follows:

“Article 2320b provides in part that in an action by any person owning an undivided mineral interest ‘in which it is made to appear that one or more of the defendants in such action are nonresidents of the State of Texas, or persons whose place of residence is unknown and who have absented themselves for at least five (5) years successively next preceding the filing of said action, and who have, claim or own an undivided mineral interest in said land and have not paid taxes on said mineral interests or rendered same for taxes within said five-year period, the District Court shall have power to appoint a receiver of said undivided mineral interest owned by such defendant, provided a duly verified petition is filed and satisfactory proof is made that the plaintiff or plaintiffs have made diligent but unsuccessful effort to locate such defendants, and that the plaintiff or plaintiffs will suffer substantial damage or injury unless such receiver is appointed.’
“The trial court found that appellee had fully complied with the provisions of said Article. The judgment specifically found that the ^lths interest involved was owned by the unknown stockholders of the defunct Mutual Union Oil & Asphalt corporation. There is no showing that the Scott heirs are stockholders of the defunct corporation. Therefore, we think the court was justified in appointing a receiver under Article 2320b. It is not necessary under said Article that the application for receiver be ancillary to other sought relief. Neither did the court abuse his discretion in directing the receiver to execute a lease to a particular lessee. Section 2 of the above Article gives the court authority to prescribe the terms and conditions of the lease.”
“Every reasonable presumption will be indulged by an appellate court in support of an order appointing a receiver and in the absence of some contrary showing it will be presumed that the judge acted fairly, properly, and according to law, that the petition and evidence were sufficient, and that proper and sufficient grounds exist for the order. 36 Tex.Jur., p. 148, sec. 69.”

As we view the record appellants’ attack upon the receivership judgment fails as a direct attack for the reason that there was no evidence of extrinsic fraud upon the part of Edward L. Green, Barnwell or of any of the appellees. Under the following quoted provisions of Art. 2320b, V.A.T.C.S., “ * * * the District Court shall have power to appoint a receiver of said undivided mineral interest owned by such defendant, provided a duly verified petition is filed and satisfactory proof is made that the plaintiff or plaintiffs have made diligent hut unsuccessful effort to locate such defendants, and that the plaintiff or plaintiffs will suffer substantial damage or injury unless such receiver is appointed,” it was the duty of the court in said receivership proceeding to require satisfactory proof of the matters stated above and such matters being squarely before the court were “intrinsic” to the receivership judgment of Jan. 24, 1959. In this connection see Weston v. Van Meter, Tex.Civ.App., 297 S.W.2d 302, no writ (1956), wherein it was stated in part as follows:

“Rule 109, T.R.C.P., supra, clearly and expressly makes it the duty of the trial court to consider the sufficiency of the diligence in publication cases, and the evidence presented at the time of the hearing in the 1949- judgment in question clearly shows that this matter was then before the court. Thus it having been the duty of the trial court (under Rule 109) in 1949 to inquire into 'the sufficiency of the diligence/ such matter is clearly ‘intrinsic’ to the judgment. And as heretofore stated, we think the record clearly shows that the question of the ‘sufficiency of the diligence’ was squarely before the court in the 1949 case and that he did then determine that question by entering the judgment that he did enter decreeing the title and possession of the land in qeustion to Mrs. Van Meter.”

There were no questions of accident or mistake, with appellants relying upon fraud to constitute their attack as a direct attack. It is our holding that there was no probative evidence of extrinsic fraud and that for that reason appellants’ attack upon the receivership judgment fails as a direct attack and must be held to be a collateral attack. In view of this holding, we deem it unnecessary to write upon the other reasons why appellees contend that appellants’ attack was collateral and not direct.

The law applicable to collateral attacks on an order appointing a receiver is stated in 49 Tex.Jur.2d, Receivers, Section 69, as follows:

“An order appointing a receiver may be attacked collaterally if it is void. In such a case, there is no receiver, and mandamus will lie to prevent the person appointed from exercising authority under the order.
“If an order appointing a receiver is merely erroneous, it must be attacked directly in the cause in which the appointment was made, since the order is entitled to the same verity as a final judgment.
“An order appointing a receiver is subject, therefore, only to direct attack, unless the court was without jurisdiction to issue the order, or unless it appears on the face of the proceedings that the order is without authority of law.
“The appointment of a receiver will not be nullified by the granting of an injunction to prevent the appointee from acting as a receiver, or by enjoining him from interfering with the possession of property involved in the receivership, where the party seeking the injunction failed to pursue his remedy by appeal. Moreover, though the premature appointment of a receiver is void, the appointment may not be collaterally assailed where the order recited the jurisdictional fact of the previous filing of a petition. And a person who has applied for the appointment of a receiver by a court having jurisdiction of the subject matter will not be permitted to question the validity of the appointment for want of jurisdiction.”

Statutory proceedings are subject to the same rules relating to collateral attacks on judgments generally. Finley v. Howell, Tex.Civ.App., 320 S.W.2d 25, no writ (1958); Schmidt v. Stanolind Oil & Gas Company, Tex.Civ.App., 332 S.W.2d 743, no writ (1960) ; and Donaldson v. First State Bank of Abernathy, Tex.Civ.App., 352 S.W.2d 302, wr. ref., n. r. e. (1960).

Appellants by their 1st, 2nd and 3rd points contend to the effect that the trial court erred (1) in granting defendants’ motion for judgment on the jury’s verdict and rendering judgment against plaintiffs, (2) in overruling plaintiffs’ motion for judgment at the conclusion of the evidence, and (3) in not granting plaintiffs’ motion for judgment on the jury’s verdict, because under the findings of the jury in the cause the District Court of Harrison County did not have jurisdiction to grant the receivership in Cause No. 20,378 styled Edward L. Green v. L. C. Johnson.

As we view this case, the findings of the jury with respect to issues 1 and 3, to the effect that Edward L. Green, and those assisting him, did not make diligent effort to locate appellant Johnson before Jan. 24, 1959, and that Edward L. Green would not suffer substantial damage or injury by failure to appoint a receiver on Jan. 24, 1959, were immaterial findings based upon immaterial and inadmissable evidence in this collateral attack since such issues were squarely before the court in the receivership proceeding and were intrinsic to the court’s judgment appointing the receiver.

Appellants in connection with said points also contend to the effect that since the receivership was without notice to appellant Johnson, and the lease made on the same day as the receivership judgment, without the receiver making and filing a bond and oath, because there was no report of sale and order of confirmation, that for these reasons the receivership was void and subject to collateral attack as well as direct attack, with appellants contending that their attack was direct rather than collateral.

As hereinbefore held, we are satisfied that appellants’ attack upon the receivership was collateral and not direct.

The above referred to matters were not affirmatively shown in the record in the receivership proceeding but were developed by appellants aliunde the record over the objections of appellees. It has been held that a judgment can not be set aside on collateral attack unless it affirmatively appears from the record in the action in which the judgment was rendered that the facts essential to jurisdiction do not in fact exist, and it is not sufficient that the record be silent or fail to show the existence of facts essential to jurisdiction, as the record in which the judgment was rendered must affirmatively show that the jurisdictional facts do not exist. Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778 (1892); Robins v. Sandford, Tex.Comm.App., 29 S.W.2d 969 (1930).

We quote in part from Robins v. Sand-ford, supra (29 S.W.2d 969), as follows:

“The disposition of the case is controlled by a decision of one question, and that is whether or not in this collateral attack the plaintiff in error may show that the order of the district court of the Eighty-Third judicial district appointing defendant in error W. G. Sandford receiver for the Owenwood Pool No. 3 is void, because the suit in which such appointment was made was not pending in the court at the time, the petition not being filed therein until the following day. * * *
“The doctrine is thoroughly settled in this state that the judgment of a court of record, which recites the necessary jurisdictional facts, is not subject to collateral attack, but can only be assailed by a direct proceeding in the court in which it was rendered. Treadway v. Eastburn, 57 Tex. 209; Mikeska v. Blum, 63 Tex. [44] 46; Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; Lyne v. Sanford, 82 Tex. 58, 19 S.W. 847, 27 Am.St.Rep. 852; Crawford v. McDonald, 88 Tex. [626] 632, 33 S.W. [325] 328; Hopkins v. Cain, 105 Tex. 591, 143 S.W. 1145; Switzer v. Smith (Tex.Com.App.) 300 S.W. 31 [68 A.L.R. 377]; Levy v. Roper, 113 Tex. 356, 256 S.W. 251; Brown v. Clippinger, 113 Tex. 364, 256 S.W. 254.
“The question arises, Is an ex parte order appointing a receiver entitled to the same’ verity against collateral attack as a final judgment? * * *
“Our Supreme Court, in Edrington v. Pridham, 65 Tex. [612] 616, in denying the right to collaterally attack an order appointing a receiver, said:
‘If, in making the appointment, the court proceeded upon an insufficient showing, the order was erroneous and subject to revision, but not void or open to collateral attack.’ Citing Dean v. Thatcher, 32 N.J.L., 470; Wood v. Blythe, 46 Wis. 650 [1 N.W. 341].
“In Holland v. Preston (Tex.Civ. App.) 41 S.W. 374, a collateral attack was sought to be made upon an ex parte order appointing a receiver, but the court held that such order could not be so assailed, stating that the rule against collateral attack under such circumstances ‘is a settled one.’
“The order in this case actually reciting the jurisdictional fact — a finding by the court that the petition had been filed — comes clearly within the rule announced in the many authorities cited, hence it must be held to import absolute verity as against the collateral attack sought to be made in this case.”

We think it is clear that the order appointing a receiver can not on collateral attack be impeached by evidence aliunde the record. See the following authorities: Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Texas Pacific Coal & Oil Co. v. Ames, Tex.Civ.App., 284 S.W. 315 (1926), opinion by Tex.Comm.App. in 292 S.W. 191 (1927).

Art. 2320b, supra, does not require notice of the receivership application. Statutes relating generally to receivers do not require giving of notice of an application for the appointment, nor do they make the court’s authority to appoint a receiver dependent upon previous notice. 49 Tex. Jur.2d Receivers, Sec. 55. Even where notice is required by statute, an appointment of a receiver without notice, although erroneous, is not void. 49 Tex.Jur.2d Receivers, Sec. 57.

Art. 2320b, supra, does not require that the receiver give bond and take an oath. The order of the District Court in the receivership proceeding collaterally attacked here did not require the receiver Green to give a bond and take an oath. We hold that the failure of Green to give a bond and take an oath can not be successfully attacked in the collateral attack made by appellants and that such omissions would not make the receivership judgment void. In this connection see Richardson v. Beasley, Tex.Civ.App., 50 S.W.2d 420, no writ (1932). Also in this connection see Carlton v. Bos, Tex.Civ.App., 281 S.W.2d 131, no writ (1955), wherein it was stated:

“The order appointing the receiver without requiring a bond by the applicant was not void, but merely voidable.”

Art. 2320b, supra, does not require the receiver make a report of sale or lease, nor does said article require a confirmation thereof by the trial court. The order appointing the receiver did not make any requirements along these lines but, as we view it, directed the making of a lease as ordered by the trial court, and did not contemplate any report of sale or confirmation. Also the record in the receivership proceeding does not affirmatively show the lack of report or confirmation, but such showing was made aliunde the record over the objections of appellees.

It is our view that the receivership proceeding in question is not subject to successful collateral attack under the record in this cause, and that the said omissions complained of by appellants would not make the receivership judgment void.

Appellants also contend to the effect that the receivership lease was void in that it was not in conformity with the order of the court in that the lease covered and granted a greater interest than that authorized by the court. The lease executed by the receiver purported to cover the entire interest of appellant Johnson in the four tracts of land in question and contains an inclusive clause, commonly known as a “Mother Hubbard Clause.”

The judgment entered in this cause by the trial court upheld the validity of the receivership lease as to appellant Johnson’s ¾2⅛ interest in the 1st tract, and an undivided ¾2th of Jlith interest in the 2nd, 3rd and 4th tracts, being the identical interests set out in the order appointing the receiver. The trial court upheld appellant Johnson’s title to the remaining interest and recognized the validity of appellant Os-trom’s lease as to such remaining interest, an undivided ½⅛ of ½1& interest in the 2nd, 3rd and 4th tracts.

The fact that the receivership lease covered a greater interest than authorized by the court would not make the receivership lease void or invalid as a whole, and the receivership lease would be invalid or incorrect only to the extent that it covered a greater interest than authorized by the court and would clearly be valid as to the interest and extent authorized by the court in the decree. In this connection see Kubena v. Hatch 144 Tex. 627, 193 S.W.2d 175 (1946).

The trial court correctly and properly limited appellees’ lease to the interest set out in the receivership judgment and correctly and properly upheld the title of appellants Johnson and Ostrom to the remaining ¾2⅛ of Jiith interest in the 2nd, 3rd and 4th tracts.

Appellants’ 1st, 2nd and 3rd points are overruled.

Appellants’ remaining points (4, 5, 6, 7 and 8) relate to evidentiary matters. Since it is our view that appellants’ attack upon the receivership order was collateral and that appellees were entitled as a matter of law to the judgment rendered by the trial court we deem it unnecessary to write upon appellants’ 4th, 5th, 6th, 7th and 8th points. Such points do not present reversible error under the record in this cause and the same are overruled. Rule 434, Texas Rules of Civil Procedure; Walker v. Texas Employers Insurance Ass’n, 155 Tex. 617, 291 S.W.2d 298 (1956).

The judgment of the trial court is affirmed.

DISSENT ON MOTION FOR RE-HEARING

DAVIS, Justice.

I dissent. The receiver was not authorized to act until after he had taken an oath and executed a bond. Art. 2296, V.A.T. C.S.; Rogers v. Boykin, Tex.Civ.App., 286 S.W.2d 440, N.W.H.

The appointment of a receiver without notice of immovable property is in violation of Rule 695, T.R.C.P.; Marion v. Marion, Tex.Civ.App., 205 S.W.2d 426 ; 49 T.J.2d 44, Sec. 26; 49 T.J.2d 77, Sec. 57. The receivership should be set aside for the reason that it was granted without notice. 49 T.J. 2d 118, Sec. 188.

The order appointing the receiver was erroneous, and a direct attack thereon was proper. 49 T.J.2d 95, Sec. 69, and the authorities cited therein.

There could be no legal confirmation of the receiver sale. Art. 2320b, Sec. 3. The holding by this court is in direct conflict with the following cases: Baumgarten v. Frost, 143 Tex. 533, 186 S.W.2d 982, 159 A.L.R. 428; Miesch v. Anderson, Tex.Civ. App., 90 S.W.2d 314, N.W.H.; Cornelison v. First National Bank of San Angelo, Tex.Civ.App., 218 S.W.2d 886, N.W.H.

I would reverse the judgment of the trial court.

      .Article 2320b, entitled “Receiver for undivided mineral interest owned by absentee of unknown address”, reads as follows:
      “Section 1. In an action filed in the District Court by any person, firm or corporation, having, claiming or owning an undivided mineral interest in any tract of land in the State of Texas, in which it is made to appear that one or more of the defendants in such action are nonresidents of the State of Texas, or persons whose place of residence is unknown and who have absented themselves for at least five (5) years successively next preceding the filing of said action, and who have, claim or own an undivided mineral interest in said land and have not paid taxes on said mineral interests or rendered same for taxes within said five-year period, the District Court shall have power to appoint a receiver of said undivided mineral interest owned by such defendant, provided a duly verified petition is filed and satisfactory proof is made that the plaintiff or plaintiffs have made diligent but unsuccessful effort to locate such defendants, and that the plaintiff or plaintiffs will suffer substantial damage or injury unless such receiver is appointed.
      Sec. 2. Such receiver, under the orders of the court, shall have power and authority to execute and deliver to a lessee a mineral lease on such outstanding mineral interest, upon such terms and conditions as may be prescribed by the court, and the moneys, if any, paid to such receiver, after the payment of the court costs, shall be by him deposited in the registry of the court for the use and benefit of such nonresident or unknown owners, and thereupon, the court may immediately discharge such receiver, and any future payments paid under such mineral lease shall be paid directly into the registry of the court and impounded for the use and benefit of such nonresident and unknown owners.
      Sec. 3. This Act shall not have the effect of altering or changing any laws now in effect relating to suits for the removal of cloud from title or the appointment of receivers under any other law, but is cumulative thereof.”

      .“Now comes Edward L. Green, Plaintiff, a resident of Caddo Parish, Louisiana, complaining of L. C. Johnson, Defendant, whose residence is unknown, but who owns an undivided interest in the minerals in the hereinafter described tracts of land, and for his cause of action would show the Court the following:
      “1. Plaintiff and Defendant both own an undivided interest in the mineral estate to four tracts of land in Harrison County, Texas, consisting of 61, 60, 74, and 39 acres, which tracts are more fully described in Exhibit “A” attached hereto.
      2. The Defendant has been absent from the State of Texas for more than five years successively next preceding the filing of this petition during which time he has not paid taxes on said mineral interest nor has he rendered the same for taxes.
      3. Plaintiff has made a diligent but unsuccessful effort to locate the Defendant, and the Plaintiff will suffer substantial damage or injury unless a Receiver is appointed to take charge of the property and execute and deliver a mineral lease on the Defendant’s interest so that the minerals can be developed and produced. At the present time there is oil development and gas development in the vicinity, and this acreage is in danger of being drained if it is not developed and produced. All of the other interest under these tracts have been leased and the development program is under way on one tract, but the discovery of this unleased outstanding interest is threatening to alter a proposed development program.
      “Wherefore, Plaintiff prays the Court that a receiver be appointed under the provisions of Article 2320-B, Vernon’s Revised Civil Statutes of Texas, that he be authorized to lease the mineral interest of Defendant for development and production purposes, and thereby insure Plaintiff against loss of development and production of this interest.
      /s/ Edward L. Green
      EDWARD L. GREEN”
      (The petition is duly verified, and attached to the petition was an exhibit containing legal descriptions of the four tracts of land involved in this suit.)

      . “On this 24 day of January, 1959, came on to be heard the verified petition of Edward L. Green, in the above mentioned cause, and after the testimony was heard it is the opinion of the Court that the facts stated in the petition are true and correct, that the Plaintiff is entitled to the relief prayed for, that Prank C. Green, Sr., of Harrison County, Texas, is qualified to act as receiver in this case, that the M. L. Bath Co. Oil, Gas and Mineral Lease form designated as ‘Producers 88 Rev. (8-57) With 640 Acres Pooling Provision’ is a good and acceptable form, that the property should not be leased for a primary term of more than one year for a bonus of not less than $25.00 per acre, and that the Defendant’s interest for lease bonus purposes should not be considered as less than ¾2⅛ of the First Tract of 61 acres, and not less than ⅛th of ⅛⅛ of the Second, Third, and Fourth Tracts of 60, 74, and 39 acres, respectively.
      “IT IS THEREFORE ORDERED AND DECREED that Frank C. Green, Sr. of Harrison County, Texas, be appointed Receiver to lease the Defendant’s interest heretofore described for Oil, Gas and Mineral development and production purposes for a primary term of not more than one year and for a bonus of not less than $25.00 an acre, based on an interest of not less than ⅛⅛ of the First Tract of 61 acres, and not less than ¾2th of ⅛1⅛ of the Second, Third, and Fourth Tracts of 60, 74, and 39 acres, respectively, in accordance with the terms of the M. L. Bath Co. Oil, Gas and Mineral Lease form designated as ‘Producers 88 Rev. (8-57) With 640 Acres Pooling Provision,’ and that the lease bonus and royalty be paid into the District Clerk’s Office of Harrison County, Texas, in accordance with the provisions of Article 2320-B of the Vernon’s Annotated Revised Civil Statutes of Texas.
      /s/ Sam B. Hall
      SAM B. HALL, SR.
      JUDGE”


author: PARKER, Justice.

text:
    Cornelius S. MEEKER, Appellant, v. Paul R. MEYER, Appellee.
    No. 6745.
    Court of Civil Appeals of Texas. Beaumont.
    May 6, 1965.
    Rehearing Denied June 23, 1965.
    Marcus, Weller, Wheelus & Green, Beaumont, for appellant.
    Fuller, Fuller & McPherson, Port Arthur, for appellee.
   PARKER, Justice.

Paul R. Meyer sued Cornelius S. Meeker on a promissory note in Cause No. D-75718 in the District Court of Jefferson County, Texas. Meeker’s pleadings asserted that a partnership existed between himself and Meyer, entitling him to an accounting and to a set-off or counterclaim on the debt evidenced by such note. In the alternative, Meeker sued upon quantum meruit and unjust enrichment. Upon a stipulated agreement signed by counsel for both Meyer and Meeker an order of separate trial was entered on October 1, 1963, by the presiding judge which order is quoted verbatim:

"ORDER OF SEPARATE TRIAL
“BE IT REMEMBERED that on the 26th day of July, 1963, the above styled and numbered cause wherein Paul R. Meyer is plaintiff and cross-defendant, and Cornelius S. Meeker is defendant and cross-plaintiff, came on for pre-trial bearing and conference before this court, at which time both said parties appeared by and through the respective attorney of record for each, and the court read and considered the pleadings herein, as well as the statements of counsel as to the matters here in issue and the facts here in dispute, as well as the matter of the relief sought by each party hereto; and the court then found that the issues presented by the pleadings, other than the issues pertaining to the existence terms and duration of the alleged partnership between the said parties, would require an extensive period of time to litigate, extensive testimony and evidence being material thereto, whereas the controlling issues of the existence of the alleged partnership, the terms thereof and the duration thereof, if severed out of the original suit and cross action, could be tried more expeditiously and such would be in furtherance of the convenience of the court, the parties and the ends of justice, and, accordingly, that this is a proper case for the court to order a separate trial of such issues as authorized and provided in Rule 174, Texas Rules of Civil Procedure, so that a final judgment as to said issues may be entered;
“It is, therefore, ORDERED that the issue of the existence or non existence of a partnership between Paul R. Meyer on the one hand and Cornelius S. Meeker on the other hand, the issue of the period of the duration of any such partnership and the issue of the terms of any such partnership agreement, be and the same are hereby severed and set aside and apart from the original suit and cross-action herein, and the same shall henceforth bear number D-75,718-B, styled Cornelius S. Meeker vs. Paul R. Meyer, to which said order all parties thereto in open court agreed.
“ SIGNED and ENTERED this first day of October, 1963.
/s/ Gordon D. Gary
GORDON D. GARY, JUDGE
“APPROVED:
/s/ Perry R. McPherson
ATTORNEY FOR PAUL R. MEYER
/s/ Kyle Wheelus, Jr.
ATTORNEY FOR CORNELIUS S. MEEKER”

This is an appeal from the trial of the partnership question under the severance order. Jury was waived. The court entered its judgment, the pertinent parts being:

“It is therefore, ORDERED, ADJUDGED AND DECREED that the legal relationship of partnership did never exist between the Plaintiff, Cornelius S. Meeker, and the Defendant, Paul R. Meyer, and Plaintiff shall take nothing of and from Defendant by virtue of any partnership relationship.
“It is further ORDERED, ADJUDGED AND DECREED that Plaintiff, based upon an interim net profit sharing association existing between Plaintiff and Defendant beginning January 1, 1958, and ending October 31, 1959, shall have and recover of and from Defendant, twenty-five (25%) per cent of the net profit produced by said association during the period beginning January 1, 1958, and ending December 31, 1958, and further Plaintiff shall have and recover of and from Defendant thirty (30%) per cent of the net profit produced by said association during the period beginning January 1, 1959, and ending October 31, 1959, the term ‘net profit’ as herein used being defined as all profit remaining after the deduction of those professional and clinical expenses as would be defined as deductible expenses by the Internal Revenue Code of 1954, as amended, and as applicable during the years 1958 and 1959, said net profit not to include any income received as a result of professional or clinical services rendered by either Plaintiff or Defendant prior to January 1, 1958.”

Both parties appealed. For convenience in this opinion Cornelius S. Meeker will be called plaintiff and Paul R. Meyer will be called defendant. The burden to establish partnership was Meeker’s. Plaintiff Meeker has two points of error which will be considered together.

“POINT NO. 1
“The trial Court erred in decreeing that the legal relationship of partnership did never exist between the plaintiff, Cornelius S. Meeker, and the defendant, Paul R. Meyer.
“POINT NO. 2
“The trial Court erred in failing to adjudge that the defendant, Paul R. Meyer, is estopped to deny the existence of a partnership existing between himself on the one hand, and plaintiff, Cornelius S. Meeker, on the other hand.”

Evidence in the light most favorable to defendant bearing upon the question as to whether or not a partnership ever existed between the parties is here set forth. Both parties wanted to form a partnership. Plaintiff testified that he made no contribution of money or other form of property to the alleged partnership; that he made no contribution of drugs, equipment or property of a similar nature except his own personal belongings, such as a stethoscope, and similar items which were to continue in his personal ownership; that he had no authority to hire or fire employees; that he had no authority to withdraw monies from any checking accounts on behalf of the alleged partnership; that he had no authority to enter into any agreement with any third persons that would bind defendant; that there was no potential loss of capital insofar as he was concerned since he had invested nothing; that he was paid exactly $750.00 a month during 1958 and most of the year 1959; that any decision of major import was entirely up to defendant; that defendant never introduced him to anyone other than as his “associate”; that no written agreement concerning the partnership was ever reached although some terms of written memoranda were agreed on, but many items relative to the bringing into being of a partnership were never agreed on; that he and defendant were unable to agree upon many terms of the proposed partnership, for which reason it could not be reduced to writing; that he could have terminated the association with defendant anytime he pleased or he could have continued under the $750.00 a month situation which already existed; that he contributed nothing to the tentative drafting of a written agreement between himself and Dr. Meyer and that a written agreement was a problem which should have been met; that his many discussions with defendant of the proposed partnership were generally unpleasant with no satisfactory progress toward that end.

The defendant, Dr. Meyer, testified that the plaintiff was a professional assistant; that there were several discussions of partnership between the two but there was no formation of a partnership because the terms were not agreed upon; that plaintiff did not have any control as to their relationship and plaintiff did not perform or do any of the things that would normally exist in a partnership relation; that he employed another physician during the time that plaintiff was associated with him of which plaintiff disapproved but could not do anything about it; that he had intended eventually to have a partnership with plaintiff but that due to their continuing disagreement as to material terms of a partnership relation it had never materialized.

In the judgment of the court that a legal partnership never did exist, the trial court necessarily determined that defendant was not estopped to deny the existence of a partnership existing between himself and plaintiff. The elements comprising an estoppel in pais are stated in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). This opinion by the Supreme Court of Texas on the question of estoppel in pais has been followed many times. As stated in such opinion, the elements are:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S., Estoppel, § 67, page 254. Also, ‘Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.’ Id. § 77, page 282, et seq.”

Plaintiff was never denied any access to the records of the association existing between himself and defendant. Plaintiff recognized that he- was a free agent and could have left defendant anytime that he so desired without being liable for any possible losses which might have been sustained as the result of his association with defendant. Plaintiff never contended that defendant concealed any material fact. Plaintiff at all times had access to any or all records that were being maintained concerning the financial or business aspects of the contemplated partnership between himself and defendant. Plaintiff had both knowledge and means of knowledge concerning the facts. An accounting system was changed in order that profits from the proposed partnership could be determined although no basis of accounting was agreed upon by plaintiff and defendant. The accountant, Campbell, testified he tried to keep the records “in such shape or condition that no matter which basis they adopted, I would have the information available, no matter what was decided, and I didn’t know, I, frankly, items of expense and income, I didn’t know how to compute income — ” Campbell was never told any agreements had been reached on these matters. Originally, the intent of both parties was to have a partnership if they could agree upon the terms of the partnership. This desire diminished, and finally ceased to exist. There is probative evidence sustaining the judgment of the trial court not only that no partnership ever existed but also that defendant was in no manner estopped to deny the existence of a partnership. Plaintiff’s points of error Nos. 1 and 2 are overruled.

Defendant’s points of error are as follows:

“1. That the trial court erred in rendering and entering that part of its judgment wherein it is ordered, adjudged and decreed that the defendant (cross-plaintiff), Cornelius S. Meeker, have recovery based upon an interim net profit sharing association for the reason that the entry of any such judgment by the trial court constitutes a violation of its own pre-trial order (as agreed upon by both counsel) and thereby violates the laws of the State of Texas with regard thereto, in particular, Rule 166, Tex.R.Civ.P., as amended.
“2. That the trial court erred in rendering and entering that part of its judgment wherein it is ordered, adjudged and decreed that the defendant (cross-plaintiff), Cornelius S. Meeker, have recovery based upon an interim net profit sharing association for the reason that the entry of this part of the judgment constituted, in effect, an ex post facto ‘instruction’ by the court that the plaintiff (cross-defendant) should have been prepared to defend against some form of business relationship other than that of partnership as set forth in the pre-trial order of the court, which action on the part of the court thereby effected a judicial ‘surprise’ upon the plaintiff (cross-defendant).”

The order of separate trial entered on October 1, 1963, referred to Rule 174, T.R.C.P. Pre-trial procedure is controlled to a large extent by the provisions with regard thereto as contained in Rules 166 through and including Rule 175, T.R.C.P. Our pre-trial procedure comes from Federal procedure. Modification of the separate trial order may be had during trial to prevent manifest injustice but the modification should be by affirmative direction. Not only was this a pre-trial order but it was a stipulation by the parties. To prevent manifest injustice the order would have to be modified at the trial by written or oral instruction of the court during the trial so the parties could present needed evidence. No modification of the pre-trial order was made during the trial. No manifest injustice appears to call for a modification thereof. During the trial in the court below attorney for plaintiff contended:

“If the Court please, now we’ll point out that the issue of unjust enrichment is not in this case, but will be relevant to that part of what we left behind. The issue here is the existence of a partnership, whether or not there was a partnership, if so, the terms and if so, what was its duration.” (emphasis added)

No objection to the pre-trial order was voiced in the trial court. Barron and Holtz-off, Federal Practice and Procedure (With Forms), Sec. 473 (p. 848 — 1960 Ed.), states that a pre-trial order, unless modified, controls the subsequent course of the trial and proceedings on appeal, citing Fowler v. Crown-Zellerbach Corp., 163 F.2d 773 (C. C.A. 9th, 1947) wherein the Circuit Court of Appeals ruled that the pre-trial order entered in such case could not be attacked because the record disclosed no objection to the order was made in the trial court which was attacked on appeal. In its opinion, the court states as follows:

“So far as we can determine it was made with the cooperation and assent of both parties. There was no reservation of the point now urged, nor does there appear to have been any request for the amendment or modification of the order in the course of the trial. The pre-trial conference held by the Court and the order entered as the result thereof were authorized by Rule 16 of the Federal Rules.”

Under federal procedure, the language contained in Rule 16, and as adopted in our Rule 166, has clear, decisive language, which language is given its full meaning in those jurisdictions where it is in effect, including Texas.

Not only was this a pre-trial order but it was a stipulation between the parties-litigant excluding trial in the court below any issue except that of partnership. Eversberg v. Supreme Tent Knights of Maccabees of the World, 33 Tex.Civ.App. 549, 77 S.W. 246 (1903—err. ref.). W. T. Carter and Brother v. Ruth, 275 S.W.2d 126 (C.C.A., 1955—n. w. h.) cites Provident National Bank v. Webb, 60 Tex.Civ.App. 321, 128 S.W. 426 (1910—n. w. h.) but states the principle in these terms: “and since the stipulation conformed to our Rules of Civil Procedure, Rule 11, T.R.C.P., and was unimpeached and unattacked, it was binding and should have been enforced, (citing cases).” See S3 Tex.Jur.2d, pp. 329, 332, Stipulations, Secs. 15, 17. Defendant’s points of error 1 and 2 are sustained.

This court should modify the judgment of the court below to conform to the powers of the trial court in the light of the record;

Accordingly, that portion of the judgment of the trial court ordering, adjudging and decreeing the following:

(a) “that plaintiff, based upon an interim net profit sharing association existing between plaintiff and defendant beginning January 1, 1958, and ending October 31, 1959, shall have and recover of and from defendant, twenty-five (25%) per cent of the net profit produced by said association during the period beginning January 1, 1958, and ending December 31, 1958, and further Plaintiff shall have and recover of and from defendant thirty (30%) per cent of the net profit produced by said association during the period beginning January 1, 1959, and ending October 31, 1959, the term ‘net profit’ as herein used being defined as all profit remaining after the deduction of those professional and clinical expenses as would be defined as deductible expenses by the Internal Revenue Code of 1954, as amended, and as applicable during the years 1958 and 1959, said net profit not to include any income received as a result of professional or clinical services rendered by either plaintiff or defendant prior to January 1, 1958”

is set aside and held to be of no force or effect and to be determined in Cause No. D-75,718; and that portion of the judgment of the trial court ordering, adjudging and decreeing:

(b) “that the legal relation of partnership did never exist between the plaintiff, Cornelius S. Meeker, and the defendant, Paul R. Meyer, and plaintiff shall take nothing of and from defendant by virtue of any partnership relationship”

is affirmed.

As so reformed, judgment is here affirmed.


text:
    W. W. DAVIS, Appellant, v. Drew POSEY, Appellee.
    No. 6765.
    Court of Civil Appeals of Texas. Beaumont.
    May 27, 1965.

      Orgain, Bell & Tucker, Beaumont, for appellant.
    Tonahill & Golden, Jasper, for appellee.
   PARKER, Justice.

This is a common law damage suit resulting from a two vehicle collision. Trial was to a jury. Drew Posey, who was the owner and operator of one of the vehicles, filed suit against Roy A. Davis and his father, W. W. Davis. Roy A. Davis was the driver and W. W. Davis was the owner of the second vehicle. Upon the jury verdict, judgment was entered for Posey. Defendant W. W. Davis will be called appellant; Posey will be called ap-pellee; and the defendant Roy A. Davis, who did not appeal, will be designated by name.

There is no conflict in the evidence. Two witnesses testified. Appellee testified: About noon on March 28, 1959, he was driving his Pontiac on Highway 190, having left Newton to go to his home in Merryville, Louisiana. Intending to pass a pickup truck going in the same direction, he gave proper warning signals and speeded up to pass. When almost even with the truck, suddenly and without warning it turned in front of him, the vehicles colliding. The driver and only occupant of the pickup truck was Roy A. Davis. The latter told appellee the owner of the pickup truck was his father, W. W. Davis, appellant.

The only other witness was appellant, W. W. Davis, who testified: On or about March 25, 1959, Roy A. Davis, his son, was living in Newton County where he had lived with his grandparents from the time he was three years old until he graduated from high school in 1961. The pickup truck involved in the collision and driven by Roy A. Davis belonged' to appellant. The vehicle was in Newton by reason of the following: Appellant was moving a drilling rig from Lake Charles to Bryan, Texas. Appellant lived in Houston, Texas, as Charles Fowler did also. Appellant asked Fowler to drive his pickup to Houston for him. Fowler was not an employee of appellant. They had traded cars in the past. Appellant was asked the following questions about Fowler and appellant’s pickup truck:

“Q. Had he loaned it out before?
A. If he had I don’t know about it.
I have asked him not to loan it out to other people the time he drove it.
Q. You did ask him?
A. Yes, sir.”
“Q. You state that Charles was going to drive your pickup back to Houston, did he have to go through Newton to get to Houston?
A. He did not. He asked that I let him. He asked would it be all right for him to go through Newton, that his family was in Newton, that he wanted them to travel along with him together since they were in Newton. She was kinda nervous driving, I would say.”
“Q. Did you control how to get him (Charles Fowler) back to Houston?
A. No, sir.”

Appellant further testified that he did not know that Fowler was going to let Roy Davis have this pickup and had no reason to believe that he would. Roy Davis had never driven appellant’s pickup or any of appellant’s vehicles before the occasion in question. Appellant had never ridden in a vehicle driven by his son, Roy Davis. Roy Davis told his father, appellant, that Fowler gave him permission to use the pickup. Appellant testified that he did not give his son, Roy Davis, permission to drive the pickup on the occasion in question; that Charles Fowler had not been given permission by him to loan the pickup to Roy Davis. Appellant did not know how Roy Davis obtained possession of the pickup •truck and did not know whether or not Fowler knew he had it.

In answer to Special Issue No. 6, the jury found that on March 28, 1959, Roy A. Davis was operating the pickup with the implied or expressed consent of appellant. Appellant’s point of error No. 1 is that the trial court erred in submitting such issue since there was no evidence to raise said issue. Appellant’s point of error No. 1 is sustained.

In answer to Special Issue No. 7, the jury found that on or about March 28, 1959, that the defendant, W. W. Davis, and Charles Fowler were engaged in a joint enterprise. In answering such special issue, the jury was instructed that: “You are instructed that W. W. Davis and Charles Fowler were engaged in a joint enterprise, if they each had not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation’ of the truck.”

Neither Fowler nor appellant were in the pickup truck at the time of the accident. Roy A. Davis was the driver and sole occupant of such vehicle when the collision occurred. The rule of joint enterprise is applicable to when both members of a joint enterprise are occupants of a conveyance. Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474, 477; Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, 119 (1959); English v. Dhane, 156 Tex. 231, 294 S.W.2d 709 (1956). Appellant’s points of error urging there was no evidence to raise the issue submitted to the jury by Special Issue No. 7 are sustained.

There is no allegation or proof of agency or negligent entrustment between appellant and Roy A. Davis. Roy A. Davis is the son of appellant but the negligence of the son in driving the pickup did not make appellant liable for the damages incurred in the collision. Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63, 100 A.L.R. 1014 (1935); Renegar v. Cramer, Tex.Civ.App., 354 S.W.2d 663 (1962). Appellant’s points of error urging there is no pleading and no evidence of agency or negligent entrustment between appellant and Roy A. Davis or negligence of any kind on the part of appellant are each and all sustained.

Judgment of the trial court is reversed. This cause having been fully developed in the trial court, this court renders the judgment that should have been rendered in the court below that appellee take nothing as against appellant and pay the costs of this court and the court below.

Reversed and rendered.


author: RENFRO, Justice.

text:
    William L. RICHARDS, Appellant, v. Weldon J. ALLEN, Appellee.
    No. 16644.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Rehearing Denied June 25, 1965.
    Andress, Woodgate, Richards & Condos and Wm. Andress, Jr., Dallas, for appellant.
    Thompson, Knight, Wright & Simmons and Frank Finn, Jr., and George C. Chapman, Dallas, for appellee.
   RENFRO, Justice.

Plaintiff Allen sued defendant Richards and others for the balance due on two notes. Defendant Richards filed a sworn answer alleging usury, lack of consideration and accord and satisfaction. Richards also brought in other parties in a third party action.

Plaintiff filed a motion for summary judgment against Richards.

Richards did not reply to the motion for summary judgment, apparently electing to rely upon his answer to plaintiff’s petition.

The defendants, other than Richards, were dismissed from the suit.

Upon the hearing of the motion for summary judgment, judgment was entered for plaintiff against defendant Richards. Subsequently the court severed Richards’ third party action from plaintiff’s suit, gave it a new cause number and made plaintiff’s summary judgment against Richards final.

On appeal defendant contends there were material disputed facts to be determined, and, also, the court erred in severing his third party suit.

The court’s judgment recited: “ * * * all parties announced in open Court that they were ready for the hearing and determination of the aforesaid Motion for Summary Judgment of plaintiff Weldon J. Allen; * * * upon reading, reviewing and examining all of the pleadings on file, all of Plaintiff’s sworn pleadings on file herein and the oral deposition of defendant William L. Richards taken herein on November 15, 1963, and after hearing evidence and full and complete argument of counsel, the Court is of the opinion that Plaintiff’s Motion for Summary Judgment should be in all things sustained * * * Allen is entitled to such Judgment as a matter of law.”

The deposition and the evidence heard by the court were not brought to this Court in any manner.

Soon after the adoption of Rule 166-A, Texas Rules of Civil Procedure, Justice Culver wrote in McFarland v. Connally, 252 S.W.2d 486 (Fort Worth Civ.App., 1952, no writ hist.): “The judgment reveals that there were introduced in evidence depositions and affidavits, all of which were considered by the court before making his ruling. Those facts not being before us, it is not possible for us to say that the court erred in holding that the appellant presented no fact issues.

“The purpose of summary judgment procedure is that the court may look through and beyond the pleadings * * * if, on a motion for summary judgment, proof fails to show any genuine issue regarding a material fact, then the granting of summary judgment is proper. * * * If facts proved would warrant an instructed verdict, summary judgment should be granted.”

This Court and other courts in numerous cases have followed the Con-nally case and held where it affirmatively appears from the record that extrinsic evidence was introduced and considered by the trial court in making his ruling, it will be presumed, in the absence of such evidence in the appellate record, that such evidence did not raise any genuine issue of material fact. Reese v. Davitte, 255 S.W.2d 1015 (Fort Worth Civ.App., 1953, dism.); Maxwell v. Maxwell, 292 S.W.2d 368 (Fort Worth Civ.App., 1956, no writ hist.).

In McDonald, Texas Civil Practice, Vol. 4, 1962 Cumulative Supplement, § 17.26.3 (a), p. 47, it is stated: “Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere pleading denial, even a sworn one, in order to overcome the force of the motion.”

The record does not indicate any objections by defendant to the introduction of the deposition or other evidence.

The action of the trial court must be sustained for the reason that, the extrinsic evidence not being before us, we must assume that it was such as to support the trial court’s conclusion that no material fact issue was presented and that plaintiff was entitled to judgment as a matter of law.

Under the provisions of Rule 41, T.R.C.P., the court had authority to sever defendant’s third party action from plaintiff’s suit against defendant. Defendant’s complaint of such severance can be sustained only if the trial court abused its discretion in granting the severance. McGee v. McGee, 237 S.W.2d 778 (Amarillo Civ.App., 1950, ref., n. r. e.).

Under the record, we cannot say there was an abuse of discretion in the severance of the actions.

All points of error are overruled.

Affirmed.


author: STEPHENSON, Justice.

text:
    J. M. RHODES, Appellant, v. LIBERTY WELDING WORKS, Appellee.
    No. 6764.
    Court of Civil Appeals of Texas. Beaumont.
    May 20, 1965.
    Rehearing Denied June 16, 1965.

      Zbranek & Friend, Liberty, for appellant.
    McGregor, Sewell, Junell & Riggs, Houston, Thos. A. Wheat, Liberty, for appellee.
   STEPHENSON, Justice.

This is a third party action brought by plaintiff, J. M. Rhodes, to recover damages from defendant, Liberty Welding Works, for an injury received by plaintiff while working in the employment of Bert-man Drilling Company. Judgment was rendered for defendant based upon answers of the jury to the special issues. The parties will be referred to here as they were in the trial court.

Bertman Drilling Company was engaged in general oilfield drilling work. Defendant was engaged in the installation of certain facilities on the same rig upon which plaintiff was working as an employee of the Bertman Drilling Company. The primary point in dispute was whether defendant constructed the scaffolding from which plaintiff fell.

Plaintiff’s first point is that the trial court erred in not granting his motion for new trial based upon jury misconduct. The evidence on the motion for new trial showed that the jury began their deliberation about 9:00 a. m. On the first vote the jury stood 7 to 5 for answering the first question favorably to defendant. After further discussion on the next vote the jury stood 8 to 4, favorably to defendant. Don Brown, the only juror to testify on the motion for new trial, gave this testimony:

“Q. All right. And I will ask you whether or not anything unusual, any unusual event happened regarding Mrs. Gresham’s health or nervous condition?
A. She complained of nervousness during the deliberation.
Q. All right, and would you tell the Court what the extent of her complaint was, at its most forceful time?
A. Well, we were getting into a pretty heated discussion and arguments, and she, I believe raised her hands up to her ears and covered her ears and stated that we would have to hurry up and decide this thing in a hurry because she had nervous conditions before, and she didn’t think that we ought to argue so much because she was getting excited and thought she might have some kind of a spell or something.
Q. And did you all quiet down the discussion after that?
A. Why sure.”

The testimony showed that the jury discussed Mrs. Gresham’s condition among themselves and decided that she should sit at the window and not participate, which she did for a while. The jury reported to the judge about 2:00 or 2:30 p. m. that they were deadlocked, and did not mention Mrs. Gresham’s condition. The court asked them to retire and deliberate some more. After they retired to continue their deliberation, Mrs. Gresham said she needed some pills to calm herself, so the jury took about an hour and a half recess. After the recess there was no more heated debate and the votes changed fairly quickly until all of the jurors voted favorably to the defendant on the first issue. This testimony by the juror Don Brown, being uncon-tradicted, established the facts as set out above. The question of law for the trial court and this court to determine was and is, whether or not such facts establish jury misconduct of such a degree that injury probable resulted to plaintiff. The trial court permitted Don Brown to testify, over defendant’s objection, that he refrained from arguing further because of Mrs. Gresham’s condition, and that her condition partially influenced him in changing his vote. Also, the evidence showed that no juror made the statement during the deliberation, that he was changing his vote because of Mrs. Gresham’s condition.

The testimony of Don Brown that he was partially influenced by Mrs. Gresham’s condition cannot be considered by this court in passing upon the question of jury misconduct. Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642. It is never permissible for a juror to preserve or destroy his verdict by testifying to the mental processes by which he reached his verdict. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462.

This leaves the court with the fact that one juror, by informing the remainder of the jury that she had a nervous condition and might have a spell, persuaded them to argue the issues in a less heated manner and .speeded up their decision on the issues. Considering the evidence on the motion for new trial and the record as a whole, we do not find that it reasonably appears that injury probably resulted to the plaintiff. Rule 327, Texas Rules of Civil Procedure.

Plaintiff’s next points complain of the court’s charge. Plaintiff alleged defendant’s employee constructed a part of the scaffolding in an unsafe and negligent manner, and also that defendant constructed a portion of the scaffolding by placing a two inch pipe over one portion of the substructure and placing the other end of the pipe under a beam on the opposite end of the structure which was negligence and a proximate cause of plaintiff’s injuries. Plaintiff also plead that defendant was negligent in constructing the scaffolding as above alleged, without welding the pipe in place so that it would not slip which was a proximate cause of plaintiff’s injuries. Special Issue No. 1 submitted by the court, over plaintiff’s objection, was as follows:

“Do you find from a preponderance of the evidence that Willie Armstrong constructed a portion of the scaffolding from which the plaintiff fell, by placing a two inch pipe over one portion of the substructure, and placing the other end of said pipe under a portion of the substructure on the opposite side thereof?”

Plaintiff requested the following issue:

“Do you find from a preponderance of the evidence that Willie Armstrong used a pipe to support one end of the scaffold which fell with the Plaintiff, J. M. Rhodes?”

This issue was followed by requested issues as to negligence and proximate cause. This series of issues was refused by the court. Plaintiff also requested a series of issues inquiring whether defendant’s employee constructed the scaffolding by using a pipe, if he failed to secure the pipe, if he left the scaffolding in such condition, if this was negligence and a proximate cause of plaintiff’s injuries. Plaintiff contends the issue submitted was too restrictive, and that he was entitled to have the first series of requested issues submitted because of his general pleading of negligence, and the second set of requested issues because it was an independent ground of recovery which had been plead.

If plaintiff had plead that defendant’s employee constructed a part of the scaffolding in an unsafe and negligent manner, and nothing more, this would have constituted a general pleading of negligence and plaintiff would have been entitled to all of the issues raised by the evidence. However, in this case, plaintiff went further and plead specifically the manner in which such scaffolding was constructed and how this was negligence. It is elementary that a party pleading negligence specifically is limited to the grounds specifically pleaded, even though he also pleads negligence generally. Yanowski v. Fort Worth Transit Co., Tex.Civ.App., 204 S.W.2d 1001.

It is the trial court’s duty to submit the controlling issues made by the written pleadings and the evidence. Rule 279, T.R.C.P. But, in doing so he is not required to follow the exact wording of the pleadings. Texas Steel Co. v. Rockholt, Tex.Civ.App., 142 S.W.2d 842. The issue given fairly and substantially submitted the controlling question. In framing issues the trial court is given a sound discretion. It was not abused here. The points are overruled.

Plaintiff complains of the submission of two issues by the trial court, both of which were answered adversely to plaintiff. The first issue inquired as to whether or not the scaffolding was constructed by the Bertman Drilling Company, plaintiff’s employer. The second issue complained of was “unavoidable accident”. Plaintiff contends there was no evidence and insufficient evidence to support the submission of these issues.

It is unnecessary for this court to consider whether the trial court erroneously submitted these issues because there was no finding of primary negligence on the part of defendant. The errors complained of, if any, were therefore harmless. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339. The points are overruled.

Affirmed.