author: COLLINGS, Justice.

text:
    Helen Godfrey WILSON et al., Appellants, v. DEARING, INC., Appellee.
    No. 4129.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.

      Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, Vinson, El-kins, Weems & Searls, Houston, for appellants.
    Garland Casebier, Midland, for appellee.
   COLLINGS, Justice.

Dearing, Inc. brought this suit in trespass to try title praying for title and possession of the south 120 acres of the north 240 acres of the west half of Section 17, Block B-29, Public School lands Survey in Ward County. The defendants Helen Godfrey Wilson and Dorothy Chapman Goodloe and her husband filed pleas of not guilty and a general denial. They also pleaded that there was no delivery of the deed of November 27, 1951 from Helen Godfrey Wilson and her husband and the Goodloes to Roy E. Dearing, and that said deed was without consideration. The case was tried before a jury and based on the verdict judgment was rendered for the plaintiff for title and possession of the property in controversy. The defendants have appealed.

In support of its claim of title appellee introduced in evidence the record title from the State of Texas to S. J. Taylor covering land including that in controversy and a deed from S. J. Taylor to Homer N. Chapman dated November 19,1926 covering such land. Appellee further offered in evidence a deed from Homer N. Chapman to Roy E. Dearing dated March 15, 1930 which purported to convey a 120 acre tract described as the south 120 acres of the southwest one-half of Section 17, Block B-29 in Ward County. It is appellee’s contention that the description in this deed was erroneous. At the time of the execution of such deed Chapman was married to Mrs. Helen Wilson who is an appellant in this case. Mrs. Wilson’s claim herein arises by virtue of her contention that the property in dispute was community property of Homer N. Chapman and herself. It is stipulated that the only land in dispute is Mrs. Wilson’s community undivided one-half interest in the north 80 acres of the south 120 acres of the north 240 acres of the west one-half of said Section 17. Appellee also offered in evidence a deed from Helen Godfrey Wilson, her husband and others to Roy E. Dearing dated November 27, 1951, which purports to be a deed correcting the erroneous description contained in the deed from Homer N. Chapman to Roy E. Dear-ing dated March 15, 1930.

The evidence shows that Helen Godfrey Wilson was married to Homer N. Chapman when he received the deed from J. S. Taylor on November 19, 1926; that Homer N. Chapman died on December 31, 1931 and left surviving his wife and one child, Phillip G. Chapman. Phillip G. Chapman died March 28, 1945 and left surviving his wife Dorothy Ann Chapman who later married Doctor N. M. Goodloe, and one child Phillip Chapman, Jr.

The evidence further shows that Roy E. Dearing died on January 19, 1932 prior to the execution of the deed by Helen Godfrey Wilson et al dated November 27, 1951. The interest of Phillip Chapman, Jr. in the property is not in controversy. It was conveyed by the guardian of his estate to C. H. Smith on January 5, 1952 and conveyed by C. H. Smith to Dearing, Inc. on April 17, 1959.

Appellee Dearing, Inc. relies upon the correction deed executed on November 27, 1951 by Helen Godfrey Wilson and others as a link in its chain of title and the basis of its right to judgment. By such instrument Mrs. Wilson conveyed by proper description the 120 acre tract in question to Roy E. Dearing, his heirs and assigns. Roy E. Dearing had died long before the execution of this deed, a fact which Mrs. Wilson admitted she knew about. Appellants objected to the introduction of the deed on the ground that the grantee named therein had died prior to its execution, that there was no delivery of the deed and no consideration for its execution. The objection was overruled.

The jury found in answer to the one special issue submitted that Helen Godfrey Wilson and her husband executed the deed of November 27, 1951 with the intention to transfer the property to Dearing, Inc. Appellants present points contending that the court erred in overruling their objection to the introduction in evidence of the deed from Helen Godfrey Wilson et al to Roy E. Dearing dated November 27,1951; erred in overruling appellants’ motion for judgment asserting that appellee failed to prove title to the interest of Helen Godfrey Wilson in the property because there was no evidence and insufficient evidence to raise a fact issue concerning the intention of either Helen Godfrey Wilson or her husband to give or deliver the deed of November 27, 1951 to Dearing, Inc., or to convey or transfer the property to appellee, and because the overwhelming weight and preponderance of the evidence showed that neither Helen Godfrey Wilson nor Harold H. Wilson knew that such deed to Roy E. Dearing was being acquired for Dearing, Inc. or had any intention to transfer such property to that company, and that the affirmative answer of the jury to the one issue submitted was so against the great weight and preponderance of the evidence that it was manifestly wrong and unjust and should have been disregarded.

Appellants further contend that the court erred in overruling their motion for judgment and in rendering judgment on the verdict because the undisputed testimony established that there was no consideration paid for the execution and delivery of the deed from Helen Godfrey Wilson et al to Roy E. Dearing dated November 27, 1951.

Appellee contends that the record and the law support two theories of recovery: one based on the Jury finding that by the November 1951 deed Mrs. Wilson intended to transfer title to land to Dearing, Inc., a remote assignee of Roy E. Dearing, and second that the 1951 correction deed relates back to the date of the Chapman-Dearing deed of 1930, and that the 1951 deed was therefore not made to a dead grantee because Roy E. Dearing was alive at the time of the execution of the 1930 deed.

The established general rule is that a deed can be made only to grantees in existence at the time of the execution of the deed. It is also recognized, however, that a deed made to the heirs or assigns of a dead person is valid if it can be shown that it was the intention of the grantor to convey title to such heirs or assigns. Sparks v. Humble Oil & Refining Co., 129 S.W.2d 468 (Tex.Civ.App., 1939, writ ref.); Vineyard v. Heard, 167 S.W. 22 (Tex.Civ.App., 1914); Lott v. Dashiell, 233 S.W. 1103 (Tex.Civ.App., 1921), 148 A.L.R. 252.

As heretofore noted the jury found that Mr. and Mrs. Wilson executed the November 27, 1951 deed with the intention to transfer property to Dearing, Inc. We overrule appellants’ points contending that there was no evidence and insufficient evidence to support this finding and that the finding is against the great weight and preponderance of the evidence. The record shows that Mrs. Wilson was the wife of Homer N. Chapman on March 15, 1930 when he executed the deed purporting to convey a 120 acre tract of land to Roy E. Dearing. There is no question but that the description in that deed is erroneous. The correction deed executed by Mr. and Mrs. Wilson on November 27, 1951 specifically referred to the March 15, 1930 deed by Chapman stating that the description therein was incorrect and then by proper description conveyed a 120 acre tract to “Roy E. Dearing, his heirs and assigns” which included the 80 acre tract here in controversy.

All parties hereto recognize that at the time of the execution of the correction instrument in 1951 Roy E. Dearing was dead. Mrs. Wilson admits that she knew at that time that Roy E. Dearing was dead. Mr. C. H. Smith, a broker, was a witness. He testified that he purchased an oil and gas lease from Dearing, Inc. covering the south 120 acres of the north 240 acres of the west one-half of said Section 17, and one of the title requirements was that there should be a quit claim deed in connection with the 1930 deed from Chapman to Roy E. Dear-ing. He stated that he placed a telephone call and established contact with a person who identified herself as Mrs. Homer Chapman ; that he told her what he wanted and she said she would call her husband; that she further said that she was now Mrs. Wilson. He stated that he explained to her what he was trying to do and asked her for a quitclaim deed, and that he also talked with her husband. Smith stated that as a result of his telephone conversation with Mr. and Mrs. Wilson he received what he called a quitclaim deed. The so called quitclaim deed was plaintiff’s Exhibit 19 which is in fact the correction deed above referred to. Smith testified that he suggested to Mr. Wilson that he, Smith, would prepare the deed and mail it to them for execution, but that Mr. Wilson said it would not be necessary; that they would prepare the deed and mail it to him. Smith further testified that Helen Godfrey Wilson, Harold H. Wilson, Dorothy Ann Goodloe and N. M. Goodloe signed the instrument which was mailed to him after he had the telephone conversation with Mr. and Mrs. Wilson about his title. He testified that the deed was mailed to him by Dr, Goodloe.

Mrs. Wilson testified stating that she knew Roy Dearing was dead. She admitted that she was informed concerning the reason that the correction instrument was being sought; that it was to “clear the title for Mr. Dearing or something like that.” When Mrs. Wilson was asked if she knew that the correction instrument which she executed was to Roy Dearing she replied “not to Roy Dearing himself knowing he was dead.” She further stated “it was in that name, and that is the way they had to clear it I suppose.” “ * * * We signed what they wanted us to sign and sent it back. We did that in good faith. That is the last we heard of them until a few years later, and they wanted another correction.” “ * * * but the second time, another correction, it seemed a little silly.”

We overrule appellants’ contention that there was a lack and insufficiency of the evidence to raise a fact issue concerning a delivery by Mr. and Mrs. Wilson of the 1951 correction deed to Dearing, Inc. The evidence supports the conclusion that Mrs. Wilson and other grantors in the correction deed caused such deed to be delivered to Mr. Smith for the benefit of Dearing, Inc. The facts come under the rule announced concerning delivery of a deed as stated in Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 5 A.L.R. 1660 as follows:

“The law prescribes no form of words or action to constitute the delivery of a deed. It will not divest a grantor of his title by declaring his deed effective when his purpose was to withhold it from the grantee. Neither will it deprive the grantee of his rights where it was the grantor’s intention to invest him with the title, though there be no manual delivery of the instrument. The question in all such cases is that of the grantor’s intention. If the instrument be so disposed of by him, whatever his action, as to clearly evince an intention on his part that it shall have effect as a conveyance, it is a sufficient delivery.”

Appellants’ points contending that the court erred in overruling their motion for judgment because the court found and the undisputed evidence shows that there was no consideration paid for the execution or delivery of the deed from Helen Godfrey et al to Roy E. Dearing dated November 27, 1951 are likewise overruled. The court did find that no consideration was paid for the execution and delivery of the Wilson-Dear-ing deed other than the consideration paid for the execution and delivery of the Chapman-Dearing deed of 1930. The Chapman-Deering deed recites a consideration of $10.00. It is held that a new consideration is not necessary to support a ratification deed. Matson v. Jarvis, 63 Tex.Civ.App. 376, 130 S.W. 941 (1911). See also Jackson v. Tonahill, 108 S.W. 178 (49 Tex.Civ.App. 169, 1908, writ ref.); Humble Oil & Refining Company v. Clark, 126 Tex. 262, 87 S.W.2d 471 (1935).

The obvious and stated object of the 1951 deed from Mrs. Wilson et al to Dear-ing, Inc. was to correct the description in the Chapman-Dearing deed of 1930. It was recited in the 1951 deed that the description in the 1930 deed was in error. It was recited in the 1951 deed that the grantors therein desired to correct such error and a grant of the land correctly described was made. The correction instrument related back to and became effective as of the time of the instrument it purported to correct. It resulted in the passing of title from Chapman to Roy E. Dearing as of March 15, 1930. Doty v. Barnard, 92 Tex. 104, 47 S.W. 712; Thorndale Mercantile Co. v. Continental Gin Co., 217 S.W. 1059 (Tex.Civ.App., 1920, writ ref.); Polk v. Carey, 247 S.W. 568 (Tex.Civ.App., 1923, writ dis.); Borden v. Hall, 255 S.W.2d 920 (Tex.Civ.App., 1951, no writ history.).

Appellants’ points are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    E. O. BATTLES, Appellant, v. Houston H. ADAMS et al., Appellees.
    No. 11472.
    Court of Civil Appeals of Texas. Austin.
    May 10, 1967.
    Rehearing Denied May 31, 1967.

      F. L. Kuykendall, Kuykendall & Kuyken-dall, Austin, for appellant.
    Leon F. Steinle, Steinle & Davis, Jour-danton, for appellee Loyd C. Sivert.
    A. L. Truex, Llano, for appellee Houston H. Adams.
   HUGHES, Justice.

E. O. Battles, appellant, as purchaser under a contract of sale of a tract of land in Llano County owned by Loyd C. Sivert and wife Theresa K. Sivert, deposited $4,750.00 as earnest money with Houston H. Adams, a licensed real estate agent. The sale was not consummated and this suit was instituted by Battles against Mr. Sivert and Adams for the return of the $4,750.00 earnest money. Adams paid this sum of money into the registry of the trial court. After a non-jury trial, judgment was rendered denying Battles recovery and decreeing that Adams recover $2,500.00 of such amount and that Sivert recover the balance of $2,250.00.

Appellant’s first point is that since Sivert had pointed out to Battles the east boundary of the 51/2 acre (approximate) tract involved and Sivert later entered into a boundary agreement with an adjoining owner to the east, thereby reducing the water frontage by 27½ feet, that the trial court erred in holding the contract enforceable.

Mr. and Mrs. Sivert owned a 5½ acre tract of land on the Llano River in Llano County known as the Rio Vista Camp. They listed this property for sale with Adams, a licensed real estate agent. On May 1, 1965, a contract for the sale of this property was entered into between Mr. Si-vert and Battles.

The description of the property to be conveyed as contained in the contract was:

“Rio Vista Camp, consisting of approximately 5i/2 acres of land situated on the Llano River in Llano County, Texas, near Kingsland, lying adjacent to lands owned by J. E. Tumlinson on the one side, and by Woodrow McDougall on the other, and being the only lands owned by Loyd C. Sivert and wife, in Llano County, Texas.”

It is undisputed that there was uncertainty regarding the ground location of the dividing line between the Sivert and Mc-Dougall properties. After the execution of the contract of sale, Mr. Battles requested a survey be made of this disputed line. This survey was made by Surveyor Lanning. Following this survey, Mr. Sivert and his neighbor Mr. McDougall entered into a boundary agreement regarding the line dividing their properties the effect of which was that Sivert gave up from eight or nine feet to twenty-seven and one half feet of waterfront property to Mr. McDougall. Mr. Battles did not consent to this boundary agreement. We quote from the testimony of Mr. Battles:

“Q Now, has Mr. Sivert, at any time, failed or refused to deliver to you what he agreed to deliver and convey to you under the terms of that contract?
A I think so.
Q How so?
A Because of the survey. The survey he had made was twenty-seven and a half foot different from what the two owners agreed on.
Q They didn’t say at any time that was an agreed property line, did they? Didn’t he tell you it was simply the way they were going to use the property in that manner of the division?
A No, I understood that they got together over here in Llano and agreed on this second line, or the second survey. The surveyor told me, to start with, that he couldn’t— and I heard him tell Mr. Bruhl— that he couldn’t certify that survey to change it to anywhere other than what it surveyed out, the first time, but he told me, the second time, that he made his second survey that he made he told me he could put a property line anywhere the two owners told him to.
******
A The surveyor put a stake down, yes.
Q When?
A When he surveyed.
Q Well, where did he put the stake down?
A Twenty-seven and a half feet from there further east than it is now.
******
Q What do you know about it ?
A I know that Mr. Lanning went down there and made a survey according to the first two stakes he found, he had his field notes, and it was twenty-seven — I may be wrong on those figures, but, anyway, the notes said twenty-seven west and something else to a line on the water front, and he taken these two stakes and run a survey, and he come out twenty-seven and a half foot from where it is now further east.
Q Who, out twenty-seven and a half feet further east?
A Mr. Lanning did.
Q Are you talking about a survey that was made by R. H. Gibson in 1959 ?
A No, sir.
Q Are you saying Mr. Lanning went out there in 1959?
A Mr. Lanning went out there in 1965.
Q All right. And then did Mr. Lan-ning set his stakes twenty-seven and a half feet farther east?
A He just set a stake under the house and it was twenty-seven and a half foot farther east than the second survey that the two owners agreed on.
Q Did Mr. Lanning tell you that was the property line — that property line twenty-seven and a half feet east?
A That’s right.
Q Do you know why he changed his mind?
A He told rue because the two owners, McDougall and Sivert, had him change it over there — to put it over there.”

Mr. Battles testified that he and another person measured the distance between the first stake set by the surveyor following a survey and the second stake set after the boundary agreement between Mr. Sivert and Mr. McDougall and the distance was about twenty-seven and one half feet.

Mr. Sivert testified:

“Q Now, afterwards, about May 25, 1965, you and Mr. McDougall settled your differences as to the boundary line by executing an agreed boundary line, did you not?
A At one time. And it had been surveyed, but the survey wasn’t recorded, and I figured — I thought it had changed—
Q How far west was the agreed-upon boundary line from what you thought your east boundary line was, approximately?
A I didn’t measure it. I’d say it was eight or nine feet.
Q Eight or nine feet?
A Right, that would get it.
Q So, actually, when you entered into this boundary line agreement, you accepted less front footage than you had thought you owned, by eight or nine feet.
A Approximately so, I think we had agreed on the sale before we ever come to the boundary dispute.
Q I understand. But after this instrument of contract was executed, you and Mr. McDougall entered into a boundary line agreement which meant that you had eight or nine feet less waterfrontage than you had thought you had?
A Yes.”
Mr. Adams testified:
“Q Were you present when Mr. Lan-ning, the surveyor, went out on this property and put down a stake which was farther up in the direction — into the house — not into the house but twenty-seven and a half feet east of what the property— present property line is?
A I was there, yes.
Q When he put down that stake ?
A Yes, I was there.”

We quote further from the testimony of Mr. Battles:

“Q After you discovered that, that Mr. Sivert didn’t own, or had given up portions of the property that he owned by this boundary line agreement and fixing the new survey line, did you have a conversation with Mr. Sivert about the loss of water front footage?
A Yes, I objected to it.
Q What was the conversation had with Mr. Sivert regarding that matter?
A Well, I told him that we were losing some property there, and that I expected reimbursement — or exactly how I stated and worded that I couldn’t say exactly, but I told him that I wasn’t getting the property and, therefore, I could not pay as much for over-all property but I would pay as much per foot on what I was getting.
Q In other words, you asked for an adjustment in the purchase price because of the loss of the front footage — water frontage ?
A Yes, sir.”

Mr. Sivert was asked the following question and answered as indicated:

“Q But, at any rate, whether you saw the letter or not, you did recognize there was a dispute between you and Mr. Battles about the water front footage — water frontage on the property that you were intending to sell him, and that, as a consequence, you were willing — because of that difference — dispute— on your own admitted testimony that there was eight or nine feet less frontage than you had thought you had, you did agree to reduce the purchase price by $1500.00, didn’t you?
A Yes, sir.”

This question and answer were objected to on the ground that it related to a compromise, and the objection was sustained. No motion to strike was made.

The testimony was clearly admissible to show the materiality of the effect of the boundary agreement.

Since the objection to this testimony was made after its admission and no motion to strike having been made, the objection was waived and the testimony was before the court for all that it is worth. Valdez v. O’Connor, 17 S.W.2d 835, Tex.Civ.App., San Antonio, n. w. h., Poole v. State Highway Department, 256 S.W.2d 168, Tex.Civ.App., Fort Worth, writ dismissed.

We direct attention to the following testimony of Mr. Adams referring to an incident prior to the execution of the contract:

“Q All right. And what did you and Mr. Sivert and Mr. Battles discuss out there? What did you tell him and what did he tell you?
A We discussed the property in general and what went with the property, and Mr. Battles was interested in knowing where, about, or approximately where thé division line was on the five acre piece of property, and which Mr. Sivert told him at that time, and I also told him it would be impossible to tell where the division line was without a survey, that he didn’t have a survey, plat, or field notes, or anything showing that the property had been surveyed; he didn’t know where the division would be without a survey. Mr. Battles stated that: ‘I’m not interested in a survey. I have always gotten along with my neighbors and I think I can get along with ■ this neighbor. I am ready to go on and contract to buy the property.’
Q Did Mr. Sivert — . You heard his testimony when he said — , where Mr. Sivert pointed out the property ran under the hamburger house, that little house there on the property — did you hear Mr. Sivert — did Mr. Sivert make any statement about the line running under there?
A Mr. Sivert told him: ‘I don’t know’ —he was in a jesting mood — he said, T wouldn’t know where the line is exactly,’ he said, ‘it could run by the side of the house, it could run under the house, this could be the line we’re standing on’ — and we were standing right at that corner post at that time.”

As stated, the contract provided for the payment of $4,750.00 earnest money which was put up by Mr. Battles. The contract also provided that “upon failure of buyer to comply herewith, seller may at his option enforce specific performance or may forfeit said earnest money as liquidated damages,” $2,250.00 thereof to go to seller and remainder to the agent Adams.

It is the general rule that when one party to a contract commits a material breach of the contract or places himself in a situation that he is unable to perform, the other party is discharged or excused from his obligation to perform. Vendor and Purchaser, 58 Tex.Jur.2d Sec. 155, p. 364. Sec. 137 of the same title and text states that the purchaser of land is entitled to the quantity of property that he contracted to buy.

It is our opinion that Mr. Sivert, by his own act, has made it impossible for him to perform the contract he made with Mr. Battles in that he has by agreeing to a boundary line with his neighbor, Mr. Mc-Dougall, after execution of the contract, and to which Mr. Battles did not consent, deprived Mr. Battles of his right under the contract to be conveyed a material amount of water frontage. By such agreement, Mr. Battles was also deprived of the opportunity to negotiate with his neighbor to be regarding the boundary.

We believe that any reasonable construction of the evidence having probative force is that Mr. Battles would lose approximately 271/2 feet of water frontage. Accepting the guess of Mr. Sivert that the loss was only 8 or 9 feet, we would still consider the shortage material especially in view of the $1,500.00 value which Mr. Si-vert put on it.

It is common knowledge that the value of property adjacent to water is largely determined by the amount of water frontage. Twenty-seven and one half feet would be large enough for a cabin. Eight or nine feet would be large enough for a boat dock.

■ Believing that performance of the contract on the part of Mr. Battles has been excused by the act of Mr. Sivert, we reverse the judgment of the trial court and render judgment for Mr. Battles for the sum of $4,750.00 and costs of suit.

Reversed and rendered.


author: DUNAGAN, Chief Justice.

text:
    TEXAS RESERVE LIFE INSURANCE COMPANY, Appellant, v. Alton ALLEN, Appellee.
    No. 283.
    Court of Civil Appeals of Texas. Tyler.
    May 4, 1967.
    Rehearing Denied June 1, 1967.

      Thompson, Coe, Cousins & Irons, Emory L. White, Jr., Dallas, for appellant.
    Fields, Fields & Hardee, Robert H. Fields, Athens, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a suit instituted by Alton Allen, appellee, against the Texas Reserve Life Insurance Company, appellant, for recovery of $5,600.00 alleged by ap-pellee to be a debt arising from an agreement wherein Alton Allen was employed by Texas Reserve Life Insurance Company as an insurance agent and manager of agents. In plaintiff’s original petition, Alton Allen alleged that the Texas Reserve Life Insurance Company owed him a monthly salary of $800.00 for a seven-month period beginning June 1, 1964, and ending December 31, 1964, by virtue of a contract introduced in evidence as Plaintiff’s Exhibit 1 (P-1) which provided a salary adjunct to the commission income of Alton Allen for services as managing agent. The contract herein sued upon will hereafter be referred to as “P-1.”

Texas Reserve Life Insurance Company denied any such indebtedness, alleging that Alton Allen’s discharge was justified because of his failure to perform substantially his duties and obligations for which he was employed. In addition, the appellant alleged that no damage was shown by Alton Allen to have resulted as a consequence of his discharge from its employment.

This case was tried before a jury and pursuant to the jury’s findings, judgment was entered for the plaintiff in the amount of $4,655.00. From this judgment, appellant has duly perfected its appeal to this court.

Appellant by its Points of Error 1 and 2 contends that:

(1) “The Trial Court erred in refusing to submit Defendant’s Special Issue No. 8a, wherein it was inquired if Alton Allen failed to substantially perform his employment agreement, prior to his discharge.”
(2) “The Trial Court erred in limiting Special Issue No. 8, wherein it is inquired if Alton Allen failed to substantially perform the duties imposed upon him by his employment agreement, to the part of the employment agreement marked ‘P-1.’ ”

It seems that the basic difference between the parties is as to the law applicable to an agreement which is evidenced by three separate written instruments. These in-truments are “P-1,” an agent’s contract, and a manager’s contract, all of which were signed by appellee, Alton Allen, and by an authorized representative of the appellant. The written instrument designated as “P-1” is dated January 3, 1963; the agent’s contract was executed on January 17, 1964, but is shown to have been effective on January 4, 1964; and the manager’s contract being a supplementary agreement between the parties is dated January 4, 1964. The undisputed evidence shows that “P-1” was actually written on January 3, 1964, rather than January 3, 1963, as shown on the instrument.

Appellee is seeking to recover only under the instrument (P-1) executed January 3, 1964, alleging that appellant breached this contract by its letter to appellee dated May 1, 1964, notifying him of the termination of his agent’s and manager’s contracts as of May 30, 1964. The appellee has not made the agent’s and manager’s contracts any part of his suit against the appellant. He is not basing his suit in whole or part upon the agent’s and manager’s contracts. It is appellee’s position that he is entitled to recover the salary stipulated in P-1, disregarding the agreements of the parties contained in the agent’s and manager’s contracts.

The appellant urged throughout the trial in the court below and so urges in this court that the instrument executed January 3, 1964, (P-1), was merely an adjunct to the standard form of employment agreement into which the parties entered, and therefore inadequate by itself as the basis for appellee’s cause of action. The instrument executed on January 3, 1964, (P-1), reads as follows:

“TEXAS RESERVE LIFE INSURANCE COMPANY
“P. O. Box 269,
“San Antonio 6, Texas
“January 3, 1963
“Texas Reserve Life Insurance Company of San Antonio, Texas has agreed to pay Alton Allen of Tyler, Texas the sum of $800.00 a month salary for at least 12 months. This amount shall not be charged to his account. He will also draw his commissions and override on all agents and brokers.
“The Company also agrees to let him keep brokerage contracts with Old National and Continental Life of Houston, Texas, for purpose of servicing present policyholders. We also agree to let him keep his office at 110 Beckam Terrace Building.
“Mr. Alton Allen will agree to write at least $20,000, annualized premium per year. He also agrees to pay office rent, secretary, box rent, telephone, answering service & stamps.
“/s/ Alton Allen
Alton Allen
“/s/ J. Henry Von Pein
J. Henry Von Pein, Vice President
Director of Agencies
“/s/ L. E. Rawlins,
L. E. Rawlins, Superintendent of Agencies”

If the agent’s and manager’s contracts with the contract herein sued upon (P-1) are each a part of the entire transaction and constitute but a single contract as if embodied in one instrument, then the agent’s and manager’s contracts of employment should also be considered in determining whether the appellee failed to substantially perform the duties imposed upon him by his employment agreement.

Special Issue No. 8 as submitted by the court and the jury’s answers thereto reads:

“SPECIAL ISSUE NO. 8
“Do you find from a preponderance of the evidence that Alton Allen, prior to his discharge by Texas Reserve, failed to substantially perform the duties imposed upon him by his employment agreement marked P-1?
“Answer ‘He failed to substantially perform’ or
‘He did not fail to substantially perform’
“ANSWER: He did not fail to substantially perform
“You are instructed by the Court that the term ‘substantially perform’ as used in this charge, is meant that performance of the employee of his obligation in the scope of his employment as a man of ordinary prudence in an industry would have done under the same or similar circumstances; you are further instructed that the term ‘substantially perform’, as used in this charge, does not mean an exact performance in every slight or unimportant detail, but means full performance in all of the essential elements necessary to the accomplishment of the entire purpose of the employment contract.”

Appellant’s Requested Issue 8-a, which was refused by the court, reads :

“Do you find from a preponderance of the evidence that Alton Allen, prior to his discharge by Texas Reserve, failed to substantially perform the duties imposed upon him by his employment agreement?
“You are instructed by the Court that by the term ‘substantially perform’ as used in this charge, it is meant that performance of the employee of his obligations in the scope of his employment as a man of ordinary prudence in an industry would have done under the same or similar circumstances; you are further instructed that the term ‘substantially perform’, as used in this charge, does not mean an exact performance in every slight or unimportant detail, but means full performance in all of the essential elements necessary to the accomplishment of the entire purpose of the employment contract.
“Answer ‘Yes’ or ‘No’.
“ANSWER:_”

The above Requested Special Issue 8-a and the definition of “substantially perform” given in connection therewith seem to be correct in form and substance for determining if an employer discharged an employee for good cause. Dixie Glass Co. v. Pollak, 341 S.W.2d 530, 91 A.L.R.2d 662, (Tex.Civ.App., 1960, Houston, writ ref., n. r. e., 162 Tex. 440, 347 S.W.2d 596).

Special Issue No. 8 as submitted by the court in the present case, however, limited the jury’s consideration of “substantial performance of the employment contract” to the instrument marked “P-1.”

As we view the record, it is our opinion that the court was in error in so limiting the jury to the instrument “P-1,” since the letter agreement was merely a part of the entire employment agreement and it did not contain all duties, obligations and matters which would relate to the performance of the employment agreement. It is apparent from the record that the court held as a matter of law that the letter agreement was complete in itself and was the employment agreement. With this holding we cannot agree, for, it is a generally accepted rule of contracts that where several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together although they do not expressly refer to each other. Board of Insurance Commissioners v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803, 809, (1951); Pacific Mutual Life Insurance Company v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113, 116, (1959); McLean v. Hillman, 352 S.W.2d 310, 313 (Tex.Civ.App., 1961, Amarillo, n. w. h.).

The appellee gave the following testimony:

“Q Mr. Allen, you were negotiating with reference to an agent’s contract and a manager’s contract at the same time you were talking about this part of the contract, were you not?
“A Mr. Coe, let me say this, that in order for me to sign a contract with them, as an agent or district agent, I was strictly depending on this contract. This was the first letter of agreement between us.
“Q In other words, you said to them in effect: T will come to work for you under your agent’s contract and your manager’s contract, provided you give me this contract?’
“A That is correct, yes, sir.
“Q They all were negotiated at the same time, in the same conversation that you had with them?
“A Well, this is the first contract I entered in with them on. Then they mailed me my district agent’s contract and my agent’s contract to sign later.
“Q They mailed them all to you, did they not?
“A No, I signed this one when I was there. They asked me to sign this one and said they would mail it to me along with their signatures.
“Q All right. You left it there with the understanding that if they would agree to the provisions set forth in that instrument, that you would go to work for them under the agent’s contract and the manager’s contract which they were going to send to you.
“A Yes, sir, that’s correct.
“Q All right. And, you had discussed all three, the provisions in here, the commissions you would get under your agent’s contract and the compensation you would get under your manager’s contract all in the same series of conversations.
“A That is correct, yes, sir.
“Q And, you recognize that the things that they were going to pay you the salary for tied into your management contract ?
“A Certainly, you couldn’t work for an insurance company unless you had a manager’s or an agent’s contract. * * * ”

From the undisputed evidence it is clear the instrument dated January 3, 1963, (P-1), and the agent’s and manager’s contracts, executed for the same purpose and in course of the same transaction, are to be construed together.

The agent’s and manager’s contracts each contain numerous provisions, stipulations and conditions affecting the employment agreement between the parties.

Appellee’s duties as an agent for the appellant were derived from the various provisions in the employment agreement and, in particular, the manager’s contract.

In Paragraph 1 of the manager’s contract, which supplemented the agent’s contract, the duties of a manager are stated in part as follows:

“1. Second Party shall secure Agents with whom the Company shall enter into Agent’s Contracts for said territory or a part thereof, if they be satisfactory to the Company, which Contracts shall be on the forms prepared by the Company, and Second Party shall personally and by said Agents solicit applications for life and endowment insurance and annuities in the Company and shall canvass and develop all of said territory and collect all premiums upon such insurance and annuities when issued and for which the Company’s official renewal receipts have been delivered to him. Second Party shall act exclusively for the Company so far as to tender to it all applications secured by him, his Agents and other Agents assigned to the territory of Second Party and shall devote his entire time, talents and energies to such solicitation and development in the business of his territory. * * * »

Paragraph 2 of the manager’s contract in part provides for an overriding first year commission and overriding renewal commissions in connection with policies issued upon the applications procured by the agents assigned to the appellee, Alton Allen.

Construing the instrument “P — 1,” the agent’s contract, and the supplementary manager’s contract together, it is apparent that the appellee, Alton Allen, was employed on a full-time basis to devote full energy and talents to the business, with the exception of those brokerage contracts referred to in the second paragraph of the instrument dated January 3, 1963, and referred to as “P-1” for the limited purposes stated therein.

Since the trial court erred in holding, in effect, that the “P-1” instrument constituted the entire employment agreement between the parties, it follows that Special Issue No. 8, as submitted, was too limited in scope and did not constitute an ultimate issue. In this sense, therefore, the issue was evidentiary and the favorable answer thereto will not support a judgment for appellee. The issue, even in connection with the other issues submitted, does not afford to appellee a complete ground of recovery. Points of Error 1 and 2 are sustained.

In view of our disposition of this case, we do not reach the other Points of Error.

Reversed and remanded.


author: PHILLIPS, Chief Justice.

text:
    CITY OF AUSTIN, Appellant, v. Anna M. SELTER, Appellee.
    No. 11474.
    Court of Civil Appeals of Texas. Austin.
    May 3, 1967.
    Rehearing Denied May 24, 1967.

      Doren R. Eskew, City Atty., Dudley Fowler, Don R. Butler, James A. Brady, Asst. City Attys,, Austin, for appellant.
    Byrd, Davis, Eisenberg & Clark, Tom H. Davis, Harley Clark, Jr., Austin, for appel-lee.
   PHILLIPS, Chief Justice.

Anna M. Selter, the appellee here, brought suit against the City of Austin for negligence in the drowning death of her son Michael Selter, at Barton Springs swimming pool in Austin, Texas. Trial was to a jury and judgment was for appellee.

We affirm.

It was a bright sunny day when this tragedy occurred. Previously, heavy rains had caused the water running down Barton Creek to back up behind the upper dam at Barton Springs pool. There are four openings in this dam covered by iron bars spaced a few inches apart. Due to the high water in the upper creek, these openings had become covered with debris such as logs, branches, wire, empty cans and rocks.

The openings are about five feet tall measuring from the creek bottom and about twenty inches wide. The iron bars covering these openings are spaced about six inches apart. It is about three feet from the dam’s top to the top of the openings. The dam is about 140 feet long and is approximately five feet wide with a walk across the top.

On the day of the drowning, water was coming over the top of the dam and the water behind the dam extended up the creek about 100 yards. The water in this pool behind the dam was clear, the surface was relatively calm and the water did not look rapid. If one stood on the dam and looked at the openings on the up-creek side, no foam was visible as the water passed through the gates into the pool-proper beyond. According to the manager of the swimming pool and the Barton area, the flooded area behind the dam was an attractive pool of water. Motion picture films taken at the scene of the tragedy by a local television photographer were shown to the jury, thus graphically illustrating this attractive and apparently calm body of water.

On this day, Jeffrey McDonald was a lifeguard on duty at the pool. He had been a guard there for four years and his older brothers had guarded there before him. He was 21 years old, weighed 185 pounds and stood five feet eight and one half inches tall. He had been attending college.

The manager of the pool and Zilker Park in general, McDonald’s superior, was Jack Robinson. Robinson had spent most of his life on the pool premises. He first started working at the pool in 1946 as a locker boy and later as a cashier, lifeguard, then manager. He had a degree from the University of Texas and had served in the Navy as an officer.

Fred Hanna, another lifeguard on duty when this incident occurred, went to the dam first and cleared two of the openings of debris. When he had finished he went to where McDonald was guarding the pool and they traded places, that is, McDonald went to clear the last two openings and Hanna ascended the guard tower. At this time Hanna mentioned the suction caused by the water flowing through the openings of the dam and warned McDonald of this suction.

McDonald got into the water behind the dam and completely cleaned one of the openings by himself. While cleaning this opening he once turned his back to it and was sucked toward it. At one point while he was pulling some debris off the bars, the suction almost pulled a ring off his hand. The suction was very strong and he testified that he was afraid of it.

The testimony of Robinson and McDonald, both of whom had practically grown up at Barton Springs, was that there was a right way and a wrong way to approach the dam openings when they were open and under water. The right way was to either place a leg on either side of the opening while holding one’s body away from the opening or to stand to one side of the opening with the body pressed against the dam itself. In the former position both arms are free with which to remove debris, in the latter, only one arm is free to work with.

While McDonald was clearing the last opening Michael Selter, Mark Hall and James Rudolph came along the walkway on top the dam and asked him if they could help. He told them that they could by taking debris that he handed them and walking over and placing it on the bank. The boys began helping in this manner and eventually Michael Selter got into the water with McDonald.

Before Michael submerged, McDonald testified that he told him to “be careful ■because of the suction.” His testimony in this regard is as follows:

“Q Did you caution him not to get in front of the gate specifically?
A I can’t remember for sure. All I can remember is I told him to watch out for the suction.
Q Just in that manner as you told me?
A Well, I can’t remember how — I can’t remember if I was very emphatic about it. I specifically remember just telling him to watch out for the suction.
Q And was that about it?
A That was about it, yes, sir.
Q And you didn’t go into any more detailed instructions?
A No sir.”

When these words were spoken McDonald and Michael were about two feet apart in the water. James Rudolph was not sure if they were facing each other. McDonald said that he had on an underwater face mask. Mark Hall testified that McDonald was also using a snorkel which is a plastic or rubber breathing tube. Hall further testified that the only mention he heard of the suction came while Michael was still standing on the dam 3½ to 4 yards from McDonald, who was in the water, and that he did not believe that Michael heard this because of the face mask and snorkel and the distance separating them. Additional interference with communication existed by virtue of the loud noise made from the water coming over and going through the dam.

McDonald and Michael made three to five dives together. On Michael’s last dive, McDonald, wearing a face mask, was on his way to the surface right above Michael. He saw Michael carrying some kind of debris, push off from the creek bottom and start up close to the dam in front of the opening. It was then that “the suction just brought him right directly up to the gate and pinned him on it.”

Repeated efforts were made to extricate Michael from the bars covering the opening all of which ended in failure until some fifteen minutes later with the aid of a pipe used as a prize, Michael’s body was brought to the surface. Artificial respiration by various methods including a resuscitator by firemen, who had arrived on the scene, were futile.

At the time of his death Michael Selter was 14 years old, he had finished the eighth grade, was five feet three inches tall and weighed between 120 and 125 pounds.

McDonald had not pointed out to Michael the way to stand and brace. Michael had not been cautioned not to get in front of the opening.

It was necessary according to Robinson to use a face mask in order to see while cleaning the openings. McDonald was using one. None had been provided for Michael.

When there was high water behind the dam, it was pool policy to keep people out of this area. The rule was to station a park patrolman in the dam area to keep people away until the water receded. When Michael died, at about 11 a. m., the patrolman was not there. He was to come on duty at noon. In his absence, it was the duty of the lifeguards to watch this area and keep people from going into it. McDonald and Hanna knew this. Robinson testified that it was McDonald’s duty as a lifeguard to keep people out of the water beyond the dam and stated that it was undesirable to have people in the water because it was not safe. The area was not roped off to prohibit customers from entering it. Hanna, from his perch on the tower, could see where McDonald and the boys were working and the guard’s duty on this tower was to whistle and keep people out. There is no evidence in the record that Hanna attempted to discharge this duty.

When the hoys first came to where McDonald was working, he did not tell them to leave the area. He explicitly gave them permission to stay and help. Although nothing prevented McDonald from doing so, he never told Michael to get out of the water. Rudolph testified that he also had been in the water submerging to gather debris and that McDonald saw him doing this. Rudolph never heard McDonald tell anyone to get out of the water or not to come into the water.

McDonald was a lifeguard when cleaning the openings. He agreed that his duties as such did not end just because he had been told to clean them.

Dr. Alderson, the appellant’s leading water safety expert, testified that lifeguards should recognize dangerous conditions in the water and prevent untrained people from being near them. This is a cardinal principle of lifeguarding, according to Dr. Alderson.

The jury found that a cause of Michael’s death was that he was allowed to help clean the openings without being adequately warned of the specific dangers involved. After hearing the testimony and hearing the witnesses, the jury concluded either that the warning was given in such a way that Michael did not hear it or that it was given so casually and briefly that it did not inform him of the dangers.

The jury also found that Michael was allowed to clean the openings without being given adequate instructions on the safest way to do it. Actually the record reveals that he received no instruction on how to go about protecting himself from the suction.

The jury found that appellant allowed Michael Selter to help clean the gates without adequately warning him of the specific dangers involved; that this was a proximate cause of his death; that appellant allowed Michael Selter to help clean the gates without giving him adequate instructions on the safest way to do it; that this is a proximate cause of his death; that appellant allowed Michael Selter to help clean the gates without providing him with adequate safeguards; that this was a proximate cause of his death; that appellant failed to take reasonable precautions to keep Michael Selter away from the area above the upper dam; that this was a proximate cause of his death; that appellant allowed Michael Selter to get into the water above the upper dam when he could not do so with safety; that this was a proximate cause of his death; that appellant did not cause the gates to be cleaned at a time when they could be cleaned with safety; that Michael Selter had knowledge of the suction around the gates in the dam; that Michael Selter did not appreciate the nature and full extent of the danger of the suction around the gates in the dam; that Jeff McDonald did not give Michael Selter a warning which was adequate to enable Michael Selter to avoid being sucked into the gate of the dam; that the death of Michael Selter was not the result of an unavoidable accident; that the value of the mental anguish suffered by Michael Selter as a result of his drowning was Ten Thousand Dollars ($10,000) and that the present value of the pecuniary benefits that Anna M. Selter would have received from Michael Selter was Twenty-Eight Thousand Dollars ($28,000).

I.

Appellant is before this Court on forty-two points of error; the first two, briefed together, are: the error of the trial court in failing to grant appellant’s motion non obstante veredicto, because at the time of his death, Michael Selter was acting solely as a volunteer; the error of the trial court in refusing to submit appellant’s requested Special Issue No. 9 inquiring if Michael Selter was acting as a volunteer at the time and place in question.

We overrule these points.

Michael Selter was an invitee having paid his admission to a public park. He was at a public swimming pool prepared to swim. The fact that he entered a pool of water some few feet from the confines of the pool-proper is controlled by our decision in City of Lampasas v. Roberts, 398 S.W.2d 612, (Tex.Civ.App. Austin 1966, writ ref’d n.r.e.) where we stated that the test of whether a person is an invitee at the exact place of injury is whether the owner of the premises ought to have anticipated the presence of a member of the public at that particular point on the premises that are devoted to public use.

The fact that the city anticipated members of the public at the pool where Michael died is shown by their practice of stationing a patrolman at the pool to keep people away. In addition, the park picnic area borders the pool in question in such a manner that it is well within the general area of the park proper.

Appellant has cited cases to this Court seeking to classify Michael as a volunteer and thus preclude recovery, however these cases are not in point. In these cases the Court either invoked the common law rule that the master is not liable to one servant for injuries due to negligence of another servant where both servants are engaged in the same common employment or enterprise; or where a volunteer, without being employed by such servant assumes all of the ordinary risks of the situation so that he takes things as he finds them. Thus, in case of injury the volunteer cannot recover from the master of the servant he has assisted by reason of the relationship thus created unless the injury is such as would create a liability as to a trespasser or bare licensee. Michael, as an invitee who had paid admission to use the pool, does not fall within this class of persons and was due a considerably higher degree of care on the part of the city: he came to the pool prepared to swim, to play as would any other fourteen year old boy under same or similar circumstances. This is exactly what he was doing when he met his death. The fact that the actual removing of the debris might have been beneficial to the city was purely incidental to his main purpose, a purpose which the city rightfully could have and did expect. The city had recognized this duty in employing the lifeguards and the guard to keep people away from the pool where Michael died.

Even assuming, for the purpose of argument, that Michael was a volunteer, the city cannot avoid liability on this fact alone. He would still be entitled to seek recovery on the general grounds of negligence. As was stated in Daugherty v. Spuck Iron & Foundry Co., by the St. Louis Court of Appeals, Missouri, 1943, 175 S.W.2d 45:

“In none of the authorities cited by defendant does the discussion involve an invitee injured by the negligence of a master’s servant while attending to business of mutual interest and advantage to both parties, and within the scope of the invitation, as in the case at bar.
Defendant, relying upon 18 R.C.L., Sec. 84, pages 578 and 579, refers to a part thereof which we hold is not applicable to the case at bar. In the very same section of the same authority, however, will be found the rule stated which we think is directly applicable herein. It is there said that while a volunteer may not recover on the basis of being a servant, ‘he yet may he entitled to the exercise of that degree of care owed to persons rightfully on the premises of the employer and may found his right of recovery on the general principles of negligence.’ ”

Also see 35 American Jurisprudence, Master and Servant, Sec. 167, p. 596.

Consequently, the City’s requested Issue No. 9 inquiring if Michael Selter was acting as a volunteer at the time and place in question was properly refused.

II.

Appellant’s points of error three, four and five, briefed together are as follows: The court erred in failing to grant appellant’s motion for judgment non obstante veredicto because the conditions in question which Michael Selter voluntarily exposed himself to were so open and obvious that, as a matter of law, he was charged with knowledge and appreciation of the conditions and the nature and extent of any attendant danger; the court erred in refusing to submit appellant’s requested Special Issues Nos. 1 through 4 which required if, in the exercise of ordinary care, Michael Selter should have known the conditions in question, if he should have appreciated the extent of the danger thereof, if he voluntarily exposed himself thereto and if such was a proximate cause of his death and the court erred in submitting its Special Issue No. 14 in terms which required Michael Selter to appreciate the full extent of the danger in question over appellant’s objection that this was a greater appreciation than was required by law and in refusing to submit appellant’s requested Special Issue No. 21 which was couched in proper language.

Appellant cites Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, (Tex.1963) for authority that one cannot ignore signals of danger which are patently open and obvious as those in this case and then recover as a result of his voluntary exposure thereto.

Testimony discloses that the pool in question was clear and tranquil in appearance under which circumstances Michael cannot be said to have been in possession of facts from which he would be legally charged with appreciation of the danger .involved. The condition was not open and obvious but latent and hidden. In viewing the water from above the dam there was nothing to warn of the force of the suction against the gates beneath the surface.

While there was movement of water over and through the dam, the extent, degree and location of the dangerous suction, well below the surface, was not such as to constitute an open and obvious condition as a matter of law.

In order for the defense of “no duty” to apply, the injured party must have known and appreciated the full extent of the particular danger which caused his injury or death, Ellis v. Moore, 401 S.W.2d 789 (Tex.1966). Knowledge of a defect by one seeking recovery is not enough to bar recovery in a personal injury action under the doctrine of assumed risk. There must be knowledge of the danger involved and appreciation of that danger.

Should appellant have offered this series of issues as contributory negligence issues they were properly refused. The trial court need not submit a special issue unless it is supported by the pleadings and evidence and is requested in substantially correct form, Texas Rules of Civil Procedure 279.

Appellant’s requested “should have known” series of issues were defective in that the first issue inquires only “Of the suction around the gates in the dam” and nowhere limits the inquiry to the real danger which caused Michael’s death, namely, the extent and degree of the suction around the dam if a person’s body is placed in front of and too near the gates without bracing. Merely to know of the suction around the dam is too general and broad to meet the requirements of a proper defense.

While Michael was warned of a suction and no doubt encountered some suction on his several trips to the bottom, we hold that there is no evidence in this record from which Michael should have appreciated the full extent of the danger with which he was ultimately confronted.

We hold that the trial court’s submission of its Special Issue No. 14 in terms which required Michael Selter to appreciate the full extent of the danger was correct and did not require a greater appreciation of the danger than is required by law. Ellis v. Moore, 401 S.W.2d 789 (Tex.1966). Ellis stated that the function of a warning is to give the plaintiff knowledge and opportunity to appreciate the danger. He can then decide whether to confront the danger.

Under the facts of this case, the warning given, if heard by Michael, was insufficient to apprise him of the magnitude of the danger involved.

III.

Appellant’s points six through twelve are: The court erred in refusing to grant appellant’s motion for judgment non obstan-te veredicto because, as a matter of law, appellant discharged any duty which it may have had to Michael Selter by properly warning him of the conditions to which he voluntarily exposed himself; the court erred in submitting its Special Issue No. 1 over appellant’s objections that it was evi-dentiary and imposed a greater duty on appellant than required by law and in refusing to submit appellant’s requested Special Issue No. 19 which properly made inquiry as to the warning given to Michael Selter; the court erred in submitting its Special Issue No. 17 over appellant’s objections that submission in such form was evidentiary and imposed a greater duty than was required of appellant by law; the court erred in rendering judgment on the answer of the jury to Special Issues Nos. 1 and 17, both inquiring as to the warning given to Michael Selter, because there was no evidence to support the answers of the jury thereto; the court erred in rendering judgment based on the answers of the jury to Special Issues Nos. 1 and 17, because there was insufficient evidence to support the answers thereto; the court erred in rendering judgment based on the answers of the jury to Special Issues Nos. 1 and 17, because the answers of the jury thereto were ágainst the overwhelming weight and preponderance of the evidence and the court erred in refusing to submit appellant’s requested Special Issues Nos. 19, 19a, 19b, and 19c which inquired if Michael Selter had been warned, if he failed to heed such warning, if such failure to heed was negligence and if such negligence was a proximate cause of his death.

We overrule these points.

Special Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that on the occasion made the basis of this suit, the City of Austin allowed Michael Selter to help clean the gates without adequately warning him of the specific dangers involved?
In connection with this issue you are instructed that ‘adequately warning him’ means such warning as would have been given by a person of ordinary prudence in the- exercise of ordinary care under the same or similar circumstances.”

Then followed an issue on proximate cause.

Both of these issues were answered in the affirmative.

Special Issue No. 17 is as follows:

“Do you find from the preponderance of the evidence that at the time and place in question, Jeff McDonald gave Michael Selter a warning which was adequate to enable Michael Selter to avoid being sucked into the gate of the dam?”
The jury answered this issue “No.”

Both the abovementioned issues were submitted over appellant’s objections that they were evidentiary and imposed a greater duty on appellant than was required by law.

We overrule this contention and refer to our discussion above in connection with Ellis v. Moore. We hasten to add that the overwhelming evidence supports both the submission and the answers returned by the jury thereto.

With respect to the court’s refusal to submit appellant’s requested Issues 19, 19a, 19b and 19c, which inquired if Michael Selter had been warned, if he failed to heed such warning, if such failure to heed was negligence and if such negligence was a proximate cause of his death, we hold that the court was correct in its refusal.

The ultimate facts represented by these requested issues were submitted in Issues 17 through 21. Issue No. 17 inquired whether Jeff McDonald gave Michael a warning which was adequate to enable him to avoid being sucked into the gate of the dam. The jury’s answer to this was “No.” Following this issue was the instruction: “If you have answered the foregoing Special Issue ‘yes’ then you will answer the following Special Issue; otherwise you need not answer the same.” Special Issue No. 18 asked if Michael had heard such warning; Issue 19 inquired whether Michael failed to heed the warning; Issue No. 20 inquired whether such failure to heed the warning was negligence followed by Issue No. 21 as to proximate cause.

The ultimate facts represented by appellant’s requested Issues Nos. 19, 19a, 19b were submitted in Issues Nos. 17 through 21. These issues requested by defendant were nothing more than different shades and phases of the same ultimate issues. Miles-Sierra Co. v. Castillo, 398 S.W.2d 948, (Tex.Civ.App. San Antonio 1966, writ ref’d n. r. e.).

IV.

Appellant’s points thirteen, fifteen and sixteen, briefed together, are the error of the trial court in submitting its Special Issue No. 3 over appellant’s objection that there was no duty to give Michael Selter instructions; the error of the court in rendering judgment on the answer of the jury to Special Issue No. 3 because there was no evidence of probative force to support the findings of the jury; the error of the trial court in rendering judgment on the answer of the jury to Special Issue No. 3 because the evidence was insufficient to support the findings of the jury.

We overrule these points.

Special Issue No. 3 was: “Do you find from a preponderance of the evidence that on the occasion made the basis of this suit, the City of Austin allowed Michael Selter to help clean the gates without giving him adequate instructions on the safest way to do it?

This finding is not necessary to uphold this judgment.

We hold that if there was any error here it was harmless error and did not cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434.

V.

Appellant’s points seventeen, nineteen, twenty, twenty-one, twenty-two, twenty-three and twenty-four, briefed together, are as follows: The court erred in submitting its Special Issue No. 5 over appellant’s objections that there was no duty to provide Michael Selter with adequate safeguards at the time and place in question and rendering judgment based on the answer thereto; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 5 for the reason that there was no evidence of probative force to support such findings of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 5 because the evidence was insufficient to support the findings of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 5 because the jury’s finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 6 for the reason that there was no evidence of probative force to support such findings of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 6 because the evidence was insufficient to support the findings of the jury and the court erred in rendering judgment based on the answer of the jury to Special Issue No. 6 because the jury’s finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Special Issue No. S is: Do you find from a preponderance of the evidence that on the occasion made the basis of this suit, the City of Austin allowed Michael Selter to help clean the gates without providing him adequate safeguards. Safeguards were then defined.

Special Issue No. 6 is: Do you find from a preponderance of the evidence that such conduct, if any you have found, was a proximate cause of Michael Selter’s death.

This finding is not necessary to uphold this judgment.

We hold that if there was any error here it was harmless error and did not cause the rendition of an improper judgment in the case, Tex.R.Civ.P. 434.

VI'.

Appellant’s points of error twenty-five, twenty-six, twenty-eight, twenty-nine, thirty, thirty-one, thirty-three, thirty-four and thirty-five, briefed together, are as follows : The court erred in submitting Special Issue No. 7 and rendering judgment based on the answer of the jury thereto over appellant’s objections that there was no duty on the part of appellant to take reasonable precautions to keep Michael Selter away from the place in question as required by such instruction; the court erred in submitting Special Tssue No. 7 and rendering judgment thereon over appellants’ objection that there was no pleading to support the submission of same; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 7 for the reason that there was no evidence of probative force to support such findings of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 7 because the evidence was insufficient to support the findings of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 7 because the jury’s finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong; the court erred in submitting its Special Issue No. 9 and in rendering judgment based thereon over appellant’s objections that appellant had no duty to prevent Michael Selter from going into the water under the circumstances in question; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 9 for the reason that there was no evidence of probative force to support the finding of the jury; the court erred in rendering judgment based on the answer of the jury to Special Issue No. 9 because the evidence was insufficient to support the finding of the jury and the court erred in rendering judgment based on the answer of the jury to Special Issue No. 9 because the jury’s finding was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

We overrule these points,

Special Issue No. 7 is as follows: Do you find from a preponderance of the evidence that on the occasion made the basis of this suit the City of Austin failed to take reasonable precautions to keep Michael Selter away from the area above the upper dam. Then followed a definition of “reasonable precautions.”

Special Issue No. 8 follows and is the standard issue on proximate cause.

Special Issue No. 9 is as follows: Do you find from a preponderance of the evidence that on the occasion made the basis of this suit, the City of Austin allowed Michael Selter to get into the water above the upper dam when he could not do so with safety? In connection with this issue, you are instructed that he could not get into the water with safety, if under all the surrounding facts and circumstances in evidence, there was such danger that a reasonably prudent person would not have allowed him to do so.

Special Issue No. 10 follows and is the standard issue on proximate cause.

All of such issues were answered in the affirmative by the jury.

We overrule these points.

Under the facts that we have stated above along with the legal conclusions set out above, we hold that there was sufficient pleading to submit the issues and sufficient evidence to sustain the jury’s findings thereon.

VII.

Appellant’s points of error thirty-six and thirty-seven, briefed together, are as follows: The court erred in refusing to submit appellant’s requested Issues Nos. 7 and 8 which inquired if Michael Selter’s going into the water was negligence and if such negligence was a proximate cause of his death; the court erred in refusing to submit appellant’s requested Special Issues Nos. 15 and 16 which inquired if Michael Selter’s failure to remove himself from the water was negligence and if such negligence was a proximate cause of his death.

We overrule these points.

Not only were appellant’s requested Issues Nos. 7 and 8 global and general in nature, but a finding that Michael was negligent in going into the water above the upper dam, and that this was a proximate cause of his death could not be supported by the evidence. It was not the going into the water that caused him to drown, but the positioning of his body in front of the gates while attempting to remove debris that led to his death.

It is the duty of the court to reconcile the entire verdict of the jury in an effort to make it speak the truth and the court should set aside and disregard general findings when the jury has answered specific findings that control the disposition of the case. Smith v. Chase, 405 S.W.2d 450, (Tex.Civ.App. Dallas 1966, writ ref’d n. r. e.).

Likewise, appellant’s requested Issues Nos. 15 and 16 were too general and unrelated as to time. The mere failure to remove himself from the water could not have been a proximate cause of Michael’s death. Michael could still be alive if he had been swimming in the water above the dam.

VIII.

Appellant’s point of error No. thirty-eight is the error of the court in refusing to submit appellant’s requested Special Issues Nos. 12, 13 and 14 inquiring whether Michael Selter helped clean the gates in question without seeking instructions on the safest way to do so, if this was negligence, and if such negligence was the proximate cause of his death.

We overrule these points.

These issues were not supported by any pleadings. Also, there is nothing in the record that would place a duty upon Michael to seek instructions or realize the need for such instructions and therefore such failure on his part could not be negligence.

IX.

Appellant’s point of error No. thirty-nine is the error of the court in submitting its Special Issue No. 23 allowing the jury to evaluate the mental anguish suffered by Michael Selter because there was no evidence of conscious pain and suffering, therefore mental anguish is not compensable as a matter of law.

We overrule this point.

Anna Selter, the deceased’s mother, had two possible causes of action, one for the wrongful death of her son, Tex.Rev.Civ. Stat.Anno. art. 4671 et seq. and a cause of action under Article 5525 which is limited to damages sustained by the decedent prior to his death.

After McDonald saw Michael sucked into the opening, he surfaced for a quick breath of air and went back down alone to help. Michael was facing the bars and pinned against them; he pulled up a leg and as he did it was sucked into the gate. McDonald grabbed an arm and pulled, but Michael could not be pulled away by this means. McDonald testified: “I think he realized he was pinned and was pushing. He had both hands, one on this side of the gate and one on the other side on the concrete trying to push away.” Michael was conscious at this time and was struggling trying to free himself; he was moving his head.

McDonald surfaced again and got Mark Hall to go down with him to pull a second time. Each grabbed an arm and pulled while bracing their feet against the dam, but to no avail. Michael was conscious and still struggling. As McDonald started to surface again, he noticed Michael still breathing. After surfacing and reaching air, McDonald saw Michael continue pushing against the dam, but he struggled only “a little bit more.” Michael Selter had lost the fight.

His body was finally freed and removed from the water. McDonald saw black and blue marks along his crotch, stomach and legs. Dr. R. G. Farris examined Michael’s body at the Brackenridge Hospital. He observed red-purple welts of skin on the abdomen and chest “where he was held by hydraulic pressure against the drain” and the doctor saw red froth in the upper respiratory tree. His diagnosis was accidental drowning. The death certificate showed that drowning caused Michael’s death.

The appellant maintains that drowning to death did not hurt Michael and therefore his mother has no right to damages for his agony. One does not die from drowning without unpleasant changes occurring within the body — the lungs fill up with water, for one. The law does not necessarily require direct proof of or specific findings on matters of universal knowledge.

As Judge Stayton said in Texas & P. R’y Co. v. Curry, 64 Tex. 85 (1885):

“The law infers, when such injuries to the person are shown to have existed as are alleged and proved in this case, that physical pain resulted therefrom; for by common observation we know that in the ordinary operation of natural laws, pain is a necessary result of such injuries. * * * This is equally true as to mental suffering; for it is contrary to common experience and the laws of man’s existence and nature that any * * * person by physical injuries may be made a cripple * * * without mental pain resulting from the changed condition.”

The existence of physical and mental suffering has been inferred from the manner or type of injury in a multitude of cases holding the jury authorized to consider these elements of damage although not directly proved. 17 Tex.Jur.2d 312, Damages, § 252.

X.

Appellant’s points of error forty and forty-one are the error of the trial court in rendering judgment for $10,000 as a result of the mental anguish suffered by Michael Selter, such finding being greatly excessive; the error of the trial court in rendering judgment in the amount of $28,-000 as a result of the pecuniary loss of ap-pellee resulting from the death of Michael Selter, such finding being greatly excessive.

We overrule these points.

The appellant has the burden of establishing that the jury’s evaluation of the damages was erroneous. Evans v. Rush, 254 S.W.2d 799 (Tex.Civ.App. Amarillo 1952, no writ); City of Dallas v. Hutchins, 226 S.W.2d 155 (Tex.Civ.App. Amarillo, 1949, writ ref’d n.r.e.).

The Court in Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App. Waco, 1960, writ ref’d n.r.e.) announced the following governing principles in dealing with the problem of excessive damages:

(1) That an appellate Court should not substitute its judgment for that of the jury;
(2) That in the absence of an affirmative showing of bias or prejudice the Courts of Civil Appeals will give every intendment to the evidence supporting the verdict;
(3) That the judgment of the jury is as good as that of the Court and it should prevail unless it appears that the verdict is influenced by passion or prejudice and is not the result of honest convictions;
(4) That the intangible elements of damage in a death case such as services, advice, counsel, nurture and care have value in addition to financial contributions and that the law has entrusted the duty of estimating their value in terms of money to the jury.

The evidence concerning the cause and manner of Michael’s death has been reviewed above. In Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App. Dallas, 1966, writ ref’d n.r.e.), an award of $5,000 for mental anguish and pain to the parents of a three year old boy who drowned was upheld. A doctor estimated that the deceased probably struggled two or three minutes. By comparison in Michael’s case we have two eye witnesses to all of the drowning circumstances, including the death struggle itself. A boy of Michael’s age and intelligence certainly realized the hopeless predicament that he was in and in the several minutes that he struggled against an inevitability, that must have become apparent to him, a reasonable inference of suffering and mental anguish could have been drawn by the jury for their finding and award. It is not for this Court to substitute it’s judgment therefor; consequently, this award should be allowed to stand.

With respect to the award of damages made Mrs. Selter, it was stipulated between the parties that according to the U. S. Life Expectancy tables, Michael Sel-ter had an expectancy, as of the date he died, of 54.9 years and that Mrs. Selter’s expectancy was 34.5 years.

Michael assisted his mother financially. When he died he had a paper route netting around $35 to $40 dollars a month. Previously he had a job selling donuts. The family plans were that he would soon become a grocery checker which would be a more lucrative and regular job. He spent his money for school supplies, had bought a bicycle and used his own money for gifts.

At the time of his death, Mrs. Selter did not own an automobile. Michael used his bicycle to go to the grocery store and shop for the family. Mrs. Selter’s net pay at the Industrial Accident Board was about $250 a month. She was renting their home. Michael helped with the wash and with the yard. He and his mother cleaned house on weekends. In the summertime, while his mother was at work, he took care of his younger brother and sister. After his death, Mrs. Selter had to hire help. Michael was the male leader of the family.

Michael was an intelligent boy. He belonged to the National Junior Honor Society. Since beginning school his grades were excellent. Michael’s eighth grade teacher, his paper route supervisor and a close neighbor all testified and described Michael as a superior young man in both talent and temperament; consequently, it was reasonable for Mrs. Selter to testify that Michael was the kind of a son she could have relied on for her various needs as she grew old.

The measure of Mrs. Selter’s loss does not end with consideration of only direct financial contributions. She also lost pecuniary benefits such as her son’s labor, service and attention in ministering to her various wants and necessities. Houston Electric Co. v. Flattery, 217 S.W. 950, (Tex.Civ.App. Galveston 1919, no writ); Gulf, C. & S. F. Ry. Co. v. Ballew, 66 S.W.2d 659 (Tex.Comm.App.1933).

In Flippen-Prather Realty Co. v. Mather, 207 S.W. 121 (Tex.Civ.App. Dallas, 1918, writ ref’d)., the Court in upholding a $10-000 judgment for the mother and father of a seven year boy who drowned in a well stated:

“It has been held that absolute accuracy with respect to the damages in such a case cannot be attained; that it is extremely difficult, in fact impossible, in this class of cases, to procure expert testimony as to the value of a child’s services, and therefore the amount must be left to the sound discretion and common sense of the jury.” (citing cases).

A similar case is M.K.T. Ry. Co. v. Hamilton, 314 S.W.2d 114 (Tex.Civ.App. Dallas 1958, writ ref’d n. r. e.). Here the mother of a 15 year old son obtained a judgment for $25,000.00. The deceased had just finished junior high school and averaged about 90 in his grades. A teacher described him as honest, well-liked, and ambitious. He helped his mother about the house and had a small job using his money for clothes and school supplies. The Dallas Court could not say that the verdict was excessive or that the finding was the result of passion or prejudice. In City of Lampasas v. Roberts, 398 S.W.2d 612 (Tex.Civ.App. Austin 1966, writ ref’d n. r. e.), this Court sustained a finding of $17,500.00 in favor of both parents of a 6 year old son killed from drinking fertilizer.

The plaintiff’s prayer was for $32,400.00 but $28,000.00 was awarded. The jury obviously decided that the evidence justified the award.

XI.

Appellant’s forty-second point of error is that of the court in awarding damages under Article 5525 because no claim was ever filed therefor as required by the City Charter of the City of Austin.

We overrule this point.

Section 7 of the Austin City Charter provides in part as follows :

“Section 7. NOTICE OF CLAIMS. Before the City of Austin shall be liable for damages for the death or personal injuries of any person * * *, the person injured, if living, or his representatives, if dead, or the owner of the property damaged or destroyed, shall give the City Council or City Manager notice in writing of such death, injury, damage or destruction, duly verified by affidavit, within forty-five days after same has been sustained, stating specifically in such written notice when, where, and how the death, injury, damage or destruction, occurred, and the apparent extent of any such injury, the amount of damages sustained, the actual residence of the claimant by street and number at the date the claim is presented, * * * ”

Appellant contends that the notice of claim filed by appellee is for damages suffered by her. That such notice is not applicable to damages incurred by Michael Selter prior to his death which she and the father of Michael Selter became entitled to by operation of Article 5525. That ap-pellee was seeking only those damages to which she might be entitled under Article 4671 et seq. That there was no claim whatsoever filed by Gordon Selter, the father of Michael Selter, who assigned his cause of action to appellee. That the Charter of the City of Austin requires that the person claiming damages or his representative must file the notice of claim. That this was not done in this instance, therefore, there should be no recovery whatsoever by appellee for any damages under Article 5525.

We do not agree with this analysis of the article.

Michael Selter had never married and had no children. His mother and father were divorced and he lived with his mother. He died intestate. There was no necessity for administration of his estate. This was alleged m plaintiff’s petitions without exception or objection.

Mrs. Selter was the only logical person to give the defendant notice concerning Michael’s death. She was the only person sustaining any real pecuniary loss. She was her son’s chief heir. No administrator was appointed because none was needed. Michael could not give notice but his representative could — and she did.

The notice filed was “for the death of my son * * * and * * * for damages sustained by me as a result of his death.” (Emphasis added.) Her claim was for the damages to which she was entitled and the defendant in its brief admits she was entitled to damages by operation of Article 5525.

The purpose of notice provisions in City Charters is to give cities a chance to investigate accidents soon after they occur to guard against unfounded claims and to gather fact information for settlement or trial. City of Waco v. Landingham, 158 S.W.2d 79 (Tex.Civ.App. Waco 1942, writ ref’d); City of Houston v. Holden, 336 S.W.2d 193 (Tex.Civ.App. Eastland 1960, writ ref’d n. r. e.); Penny v. City of Texarkana, 400 S.W.2d 797 (Tex.Civ.App. Texarkana 1966, writ ref’d n. r. e.).

In the Holden case above, the plaintiff stated in his notice that the accident occurred when a city truck went forward and hit him, but his trial pleadings and proof showed that the truck was engaged in backing when the collision happened. The Court held the variance to be not so material that it was calculated to mislead the city, to deprive it of investigative opportunities, or to render it unable to guard against a fraudulent claim. The cause of action described in the notice and in the pleadings and proof was the same.

In City of Houston v. Glover, 355 S.W.2d 757 (Tex.Civ.App. Waco 1962, writ ref’d n. r. e.), a widow sued for the death of her husband. There was no administration. The claim filed stated that deceased sustained serious injuries resulting in death. The city contended that since the widow’s claim did not mention pain and suffering (recoverable by virtue of Article 5525), she could not collect for it. The Court summarily held that the notice filed was sufficient to apprise the city of this element of damages. Mrs. Selter’s claim for the drowning death of her son was similarly sufficient to apprise the defendant of the mental anguish (recoverable by virtue of Article 5525) element of damages.

The plaintiff in City of Port Arthur v. Wallace, 167 S.W.2d 549 (Tex.Civ.App. Beaumont 1942), affirmed in 141 Tex. 201, 171 S.W.2d 480 (1943), injured his eye due to the city’s negligence. He gave notice stating: “The apparent extent of said injuries and damages were * * * a severe, deep cut under the left eye, * * Fourteen months later while cutting kindling he was hit in the same eye by a piece of wood. Subsequently the eye was removed and plaintiff sued for the entire loss maintaining that the first injury was a cause of it. The city contended failure of timely notice. The court held the first notice, timely given, sufficient to advise the city of all injuries to the eye resulting from the first injury.

The point of the Holden, Glover and Wallace cases applicable here is that that if the city is given fair notice of when, where and how the incident happened and a general description of the resulting injuries or losses, then the purpose of requiring notice has been satisfied.

This Court has overruled an attack on a notice giving the occurrence date as August 30, 1960, when it truly happened on August 31. City of Temple v. Wilson, 365 S.W.2d 393 (Tex.Civ.App. Austin 1963, writ ref’d n. r. e.). It regarded this criticism of the notice as hypercritical and without substance especially since the damages were ■caused by a city employee in a city truck. The Court stated:

“The charter provision under consideration does not require letter perfect compliance. It does require reasonably substantial good faith compliance.”

Michael Selter’s death occurred on city property and was witnessed by city employees. His mother’s notice was a claim for all the damages she was entitled to by reason of her son’s death. The father assigned his entire cause of action to Mrs. Selter. The defendant was not and cannot be sued by anyone else. A notice of death •reasonably includes what the law allows the survivor to claim. In no way can the •defendant show that it was misled, harmed or prejudiced by the notice filed in this case. It sufficiently apprised the defendant of a death and the damages which are legally recoverable as a consequence.

The judgment of the trial court is af■firmed.

Affirmed.

      . Sandefur v. Sandefur, 232 S.W.2d 111, (Tex.Civ.App. Amarillo 1950, writ ref’d.). In this case the Court said: “In reply to appellant’s motion for rehearing, appellee has cited us to a list of twenty-one cases decided by the courts of this and other states and by the Federal Courts. We have examined all of them and in none of them do we find any holding contrary to the conclusions we have expressed. A number of them deal with the rights of invitees upon premises of others and others deal with the liability of the owner of premises to a licensee. Those cases are not in point and cannot affect the disposition which we must make of the instant case.”

      . Marshall & E. T. Ry. Co. v. Sirman, 153 S.W. 401 (Tex.Civ.App., Texarkana 1913, writ ref’d.).