author: WILS,ON, Justice.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Lee DAVIS, Appellee.
    No. 4607.
    Court of Civil Appeals of Texas. Waco.
    May 4, 1967.
    Rehearing Denied May 25, 1967.
    Bracewell & Patterson, Wm. Key Wilde, Ronald C. Kline, Houston, for appellant.
    Zbrangk & Friend, J. C. Zbranek, Liberty, for appellee.
   OPINION

WILS,ON, Justice.

The one question in this workmen’s compensation jury case is whether the exclusion of a doctor’s report in hospital records, under Art. 3737e, Vernon’s Ann.Civ.Stat., is reversible error. In our opinion the objection to the report was erroneously sustained and we reverse.

Judgment was rendered for claimant on a jury verdict finding total and permanent incapacity, and good cause for failure to file claim within six months. The carrier’s contention was that claimant did not sustain an accidental injury in the course of his employment, and any incapacity resulted from a pre-existing condition and prior injuries. The jury found claimant’s incapacity was not solely due to some other injury or bodily condition, but that 20% of his incapacity was so due. The nature and extent of his asserted back injury and incapacity were issues on which the case was tried. Three medical doctors testified. Numerous X-rays on which conflicting interpretations were made were in evidence. The medical testimony as to results of examinations of claimant was conflicting on whether he had abnormal or objective symptoms. In short, as is typical in such cases, the medical aspects of the case were contested with intensity.

Claimant testified: “Q. Prior to the time that you got your back hurt on this event that you have told us about, was there anything bothering you about your back? Was your back hurting you, keeping you from working? A. No, sir.” He testified the brace he was wearing was “the only brace I ever wore in my life,” and the only time he had “ever had one on” was after the injury presently alleged. He denied he had previously been hit in the back with an ax.

Exclusion of the report developed as follows: Dr. Robey examined claimant two years before the trial at St. Elizabeth Hospital in consultation with another doctor. He was called as claimant’s witness and testified on cross-examination that he did not keep independent records of examinations on consultation cases, but relied on hospital records; that he had dictated a report at the hospital; that he had no records of examination “other than the consultation report” in the hospital medical records, and a card which recorded that he made an examination.

The report in question was exhibited to Dr. Robey by appellant’s counsel who asked whether it was “a copy of the consultation report that you made when you examined” claimant the first time. (It bore Dr. Robey’s handwritten name). “A. I can’t be absolutely sure. It was quite some time ago and it is difficult to be absolutely sure that is it. I say that for one reason, and the main reason is that that is not my signature.” He had made an unsuccessful effort to find who had written his name on the report. He did not deny or repudiate the report; he did not suggest it was incorrect in any respect except that the name appearing on it was not his signature. The doctor with whom Dr. Robey consulted relied on and used the report.

Appellant then proved up the report, by testimony of the custodian of the hospital medical records, as having been made in the regular course of the business of the hospital. The custodian testified that the records were made by persons having personal knowledge of the matters recorded; that it was the usual course of the business that the record be so made by such persons; that the record was made shortly after the events recorded. Dr. Robey’s testimony was that he “could not remember one way or the other” whether the report was correct, after two years had elapsed. There is no question presented that authentication of the report did not meet requirements of Art. 3737e, the Texas business records Act, or that the trial judge failed to find the essential elements.

Claimant objected to admission of the report solely because Dr. Robey had denied the report contained his signature. The trial judge sustained that objection, stating: “I do not think it would be an official record if it is not signed by the doctor,” and “you can’t get it in that way. The witness has said that is not his signature.”

The excluded report recited that claimant had “no history of definite trauma to the back”; that “his past history is significant in the fact that the patient had a traumatic injury to the back and right kidney in 1942 with the back of an ax,” and that “Since said period of time, the patient has been wearing a lumbo-sacral back brace with minimal complaints”; that he had “good erect posture”, no muscle spasm, and “no localized tenderness or deformity”; that there was “no tenderness over the vertebrae, lumbo-sacral or lumbo-illiac region present;” that there was “no evidence of fracture or other pathology of the lumbar spine” except for “moderate degenerative arthorosis.” The report gave no history of an injury such as is now claimed.

Much other testimony at the trial was inconsistent with these recitals. If the objection was erroneously sustained it is clear that the exclusion was not harmless error under Rule 434, Texas Rules of Civil Procedure.

There is no requirement in Art. 3737e that a record be signed by anyone. The statute provides that the memorandum or record shall be competent evidence if the judge finds the elements which were proved without dispute in this case. The sole objection to admissibility was that the report did not bear the signature of the physician.

Sec. 2 of Art. 3737e provides that “The identity and mode of preparation of the memorandum or record” in accordance with the first section may be proved by the testimony of the “entrant.” But this method is not exclusive; it may also be proved by the testimony of the “custodian” even though the latter “may not have personal knowledge as to the various items or contents of such memorandum or record”. Lack of personal knowledge “may be shown to affect the weight and credibility” of the record, “but shall not affect its admissibility.” See Skillern & Sons, Inc. v. Rosen (Tex.1962), 359 S.W.2d 298, 305; 32 C.J.S. Evidence § 728, p. 1043, notes 91.64-91.72.

In our opinion the record was not subject to the objection made, and it was erroneously sustained. Reversed and remanded.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Gene WHITE et al., Appellants, v. Dan W. COOPER et al., Appellees.
    No. 7713.
    Court of Civil Appeals of Texas. Amarillo.
    May 1, 1967.
    Rehearing Denied May 29, 1967.

      Herbert C. Martin, Amarillo, for appellants.
    Johnson & Dionne, Fort Stockton, Dick M. Allison, Fort Stockton, of counsel, for appellees.
   DENTON, Chief Justice.

This suit was instituted by appellants, Gene White, Newton Ellison and Connie Peyton against appellees Dan W. Cooper, Edna Mae Cooper, C. A. Hudson, Ruth R. Hudson and C & H Farms, to recover the sum of $60,000.00 and attorneys’ fees alleged to be owed to appellants by appellees by virtue of a written agreement and an alleged assignment executed by appellees.

Appellants filed a motion for summary judgment and appellees filed a controverting affidavit and a counter motion for summary judgment, which was answered by an affidavit in opposition to such counter motion. The trial court granted appellee’s motion, denied appellants’ motion, and rendered judgment that appellants take nothing against appellees by their suit. Appellants have timely perfected this appeal.

■Appellees were the owners of a 15,550 acre ranch in Pecos and Ward Counties, Texas. They contracted to sell and subsequently sold this ranch to the Anchor Company for approximately $1,800,000.00. Ap-pellees wrote appellant Gene White what was designated a “commission letter” which read in part as follows:

“Dear Mr. White:
“The undersigned recognize that your agency has been the procuring cause of the sale of the captioned properties as per the contract of purchase and sale entered into by and between the parties described in said caption and dated March 23, 1966, to which reference is here made for all purposes.
“This commission letter is to evidence our mutual agreement that you are to receive the sum of $60,000.00 as commission for services rendered by you or through your agency as real estate brokers. This letter also authorizes the Amarillo National Bank of Amarillo, Texas, which bank has been designated escrow agent in this transaction to distribute same sum to you at the time of closing according to written notification to be given to said bank by you.”

White accepted the letter on the date written. On May 18, 1966, which was prior to the date of the closing, appellees’ attorney mailed a letter to the Amarillo National Bank, the holder of the escrow fund, instructing the bank not to pay White any money until certain conditions had been met. The money was not paid and this suit was subsequently filed.

Appellants first contend they are entitled to recover as a matter of law on the ground appellees’ commission letter constituted an assignment of the $60,000.00 to appellant Gene White. It is well settled that a mere promise to pay a debt out of a particular fund does not alone constitute an assignment of the fund. Colleps v. George W. Smith Lumber Co. (Tex.Civ.App.) 185 S.W. 1043; (Dismissed). In Davis & Goggin v. State National Bank of El Paso (Tex.Civ.App.) 156 S.W. 321 (Writ Ref.), we find the following language :

“On the other hand, a mere agreement whether by parol or in writing, to pay a debt out of a designated fund of itself is not sufficient; there must be an appropriation of the fund pro tanto either by an order on the specific fund or by transferring the amount otherwise in such a manner that the holder of the fund is authorized to pay the amount directly to the creditor, without the further intervention of the debtor. In other words, an equitable assignment can be effected only by a surrender or control over the funds or property assigned. For instance, the mere promise of a debtor that he will pay a debt out of particular funds is not sufficient; there is lacking the specific appropriation of the fund pro tanto and surrender of control thereof.”

Cooper v. Cocke (Tex.Civ.App.) 145 S.W.2d 275. Carr & Howard Construction Company v. Panhandle State Bank (Tex.Civ.App.) 347 S.W.2d 793 (Ref. N.R.E.) 6 Tex.Jur.2d, Assignments, Section 35, page 426.

By the terms of the commission letter, appellees promised to pay White the $60,000.00 commission “at the time of closing” the sale. Payment was conditioned upon the closing. At the time the letter was written and accepted the sale had not been completed. Although it could be argued there remained nothing further for the obligor (White) to do, it is clear the appellees did not relinquish control of the fund by the execution of the letter. A present interest in the money was not vested in White. We therefore conclude the instrument did not constitute an actual or equitable assignment of the $60,000.00 of the escrow fund.

Both parties filed motions for summary judgment in which they contend their respective positions are supported by the Real Estate Dealer’s License Act, Article •6573a Vernon’s Ann.Civ.St. The pleadings, affidavits, and exhibits clearly establish the completed real estate sale; that appellant White’s real estate agency was the procuring cause of the sale; that appellants White and Ellison were licensed real estate salesmen under the laws of New Mexico; that they were not licensed in Texas; and that Connie Peyton was a licensed real estate broker under the laws of Texas. Two primary questions are in dispute. Did White and his New Mexico agency associate themselves with Connie Peyton in the transaction here, and if so, was the transaction conducted by Connie Peyton, the resident licensed broker?

Appellees contend there is no summary judgment evidence Connie Peyton was either associated with the other appellants in this transaction or that she conducted the transaction. However, they argue in the event there was evidence to support these issues the appellants are precluded as a matter of law from recovering the real estate commission under Sections 19 and 28 of the Real Estate Dealer’s License Act. They contend the requirement of Section 19, that no person or company may maintain an action for a real estate commission -unless it is alleged and proved such broker was a duly licensed broker by this state, was undeniably not met by appellants White -and Ellison. They further contend Connie Peyton, a Texas licensee, cannot recover the commission because she had no written .agreement or listing with the sellers as required by Section 28 of the Act.

The material portion of Section 7(b) of the Act reads as follows:

“(b) A nonresident of this State may be licensed as a Real Estate Broker or Salesman providing such nonresident is at the time licensed as a broker in real estate under the laws of the State where he or it resides, and which said State has legal standards of qualification which the Commission finds equivalent to this Act; provided, however, that such nonresident must procure from the agency administering such law in such State, a certificate as to such license and recognizing and approving the reliability and standing of such nonresident in such other State, and file same with the Commission; and provided further, that said nonresident licensee shall at all times maintain a place of business in this State in conformity with the requirements as to resident licensees. Nothing herein is intended to prohibit real estate transactions in this State by nonresidents if conducted by a resident licensed broker or salesman.”

Appellees argue the last line of this subsection, standing alone, does not entitle appellants to recover in the absence of compliance with Sections 19 and 28. We are not in agreement with this contention. One of the cardinal rules of statutory construction is to ascertain the legislature’s intent and to give effect to every express determination thereof. Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4. Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929. Shanken v. Wolfman (Tex.Civ.App.) 370 S.W.2d 197 (Ref. N.R.E.). It is equally well settled that a statute must be reasonably constructed consistent with the general principles of law. Magnolia Petroleum Company v. Walker (Supra).

Section 7(b) sets out the requirements and procedure for nonresidents to be licensed real estate brokers or salesmen in this state. The last quoted sentence reads:

“Nothing herein is intended to prohibit real estate transactions in this State by nonresidents if conducted by a resident licensed broker or salesman.”

If this sentence has any meaning, and we believe that it does, it simply permits a nonresident real estate broker or salesman to engage in real estate transactions in this state if that nonresident’s licensee associates himself with a Texas licensee; provided the Texas licensee conducts the transaction. To hold this section requires the nonresidents to obtain a Texas license and/or the Texas licensee to be named in the written listing would give the statute a strained and meaningless construction. If the nonresident is permitted to engage in real estate transactions in this State, under certain conditions, he is entitled to enforce his legal remedies growing out of such transactions. The question then presented is whether or not under this record, either appellants or appellees are entitled to judgment as a matter of law. This question must be determined from a review of the parties’ motions for summary judgment and the record thereunder.

The fact both parties filed motions for summary judgment does not mean the court is at liberty to grant one or the other and that in such event only questions of law are presented. Arlington Independent School District v. James T. Taylor & Son, Inc. (Tex.Civ.App.) 322 S.W.2d 548. Affirmed 160 Tex. 617; 335 S.W.2d 371. Levenson v. Alpert (Tex.Civ.App.), 399 S.W.2d 955. It is fundamental that a summary judgment is not proper if the evidence raises issues of fact to be determined by the court or jury. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93. After applying these well settled principles of law to the record in this case we have concluded that material issues of fact exist as to whether or not appellants White and Ellison associated themselves with Connie Peyton; and whether or not the latter did in fact conduct the real estate transaction.

Appellee Dan W. Cooper, in an affidavit in support of their motion for summary judgment, declared he had never heard of Connie Peyton until citations in this case were served upon him long after the sale had been closed; and that neither White nor Ellison had told him that they had associated themselves with Connie Pey-ton in the transaction; and that he did not learn White and Ellison did not have a Texas real estate license until after the sales transaction was closed. His statement that he had talked with the other ap-pellees and they had told him they “never heard of Connie Peyton” until the suit was filed; ánd that they had also told him that they hád not known of the association of White and Ellison with Peyton are obviously hearsay and would not be admissible in evidence. Another affidavit was filed by Roy Whittenburg, president of the Anchor Company, the purchaser of the ranch. He stated he represented his company in the transaction and that Connie Peyton “never talked with me about the sale * * * at any time.”

On the other hand, White filed affidavits both in support of appellants’ motion iand in opposition to appellees’ motion. He asserted that before entering into the transaction he and Ellison associated themselves with Connie Peyton; and that the transaction between the parties “was conducted” by Connie Peyton as provided for by Section 7(b) of Article 6573a. It is apparent the affidavits are in direct conflict with each other. However, in summary judgment proceedings, courts are not to weigh the evidence or determine its credibility. It is the court’s duty to determine if there are any fact issues to be tried. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929, Fact issues were raised as to Connie ¡Peyton’s association with White and Ellison and her conduct of the real estate transaction. We are of the opinion the trial court erred in granting appellees’ motion for summary judgment. These fact issues must be resolved by a trier of the facts.

The judgment of the trial court is reversed and the cause remanded for a trial on the merits.


author: PHILLIPS, Chief Justice.

text:
    Carol NASH, Appellant, v. Coy RODEN and wife, Villa Mae Roden, Appellees.
    No. 11479.
    Court of Civil Appeals of Texas. Austin.
    May 10, 1967.
    Rehearing Denied May 24, 1967.

      Gardhre, Porter & DeHay, Edward E. Crowell, Jr., Dallas, for appellant.
    Byrdy Davis, Eisenberg & Clark, Tom H. Davis, Don L. Davis, Austin, for appel-lees.
   PHILLIPS, Chief Justice.

The automobile accident that brought about this suit occurred on Interstate Highway 35 just north of the Bluff Springs overpass and a few miles south of the city of Austin. Interstate 35 is a freeway with three lanes each for northbound traffic and for southbound traffic. The northbound lanes and southbound lanes are separated by a grass median approximately ten feet wide.

At approximately 5:30 p.m. in November, 1963, the appellant, Carol Nash, was northbound on Interstate 35 driving in the right-hand, or outside, lane of traffic. At this time Calrol Nash was a high school student, had been licensed to drive for only a few months and had only limited driving experience.

On the day of the collisions the weather was intermittently raining, showering and misting.¡ The highway was wet and slick, the flow of traffic was heavy, especially the northbound traffic. Carol Nash had never driven on a wet highway prior to this date.

At the same time and place, James Ratterree, was also driving his car north on Interstate 35; however, he was driving in the left-hand, or inside, lane of traffic. James Ratterree was a salesman and had been driving for about twenty-seven years and drove approximately forty-seven thousand miles a year.

As Ratterree drove over a hill about a quarter of a mile south of the Bluff Springs overpass, he saw Carol Nash’s vehicle approximately 200 feet in front of him in the outside lane of traffic. The Ratterree vehicle was overtaking the Nash vehicle and at the Bluff Springs overpass the Nash vehicle began to pull over into the center northbound lane to pass a car which was about 50 feet in front of it. At the time the Nash vehicle started to pass this car, the Ratterree vehicle was about 75 feet behind and was gaining on it. Ratterree applied his brakes lightly, as a precautionary measure, when the Nash vehicle started to pass the car in front of it.

When the Nash vehicle was approximately half in the outside lane and half in the center lane, Carol Nash applied her brakes and her vehicle went into a fast counterclockwise spin. Her car immediately skidded to the left through the center lane of traffic and directly across the path of the Ratterree vehicle which was about 40 feet south, or behind it, at the time.

In a split-second the front end of the Nash vehicle spun around and collided with the front end of the Ratterree vehicle just north of the Bluff Springs overpass. In another split-second the Nash vehicle skidded backward across the uncurbed median and struck the appellee Roden vehicle broadside in the southbound, outside lane of traffic.

The entire chain of events, described above, took place “in just a few seconds,” “almost instantaneous,” “within seconds,” was a “split-second chain reaction” and was all over in “3 to 5 seconds.”

The jury returned a verdict in which it found the appellant, Carol Nash, to have been negligent in failing properly to apply her brakes, failing properly to turn her vehicle, failing properly to accelerate and in crossing into the southbound lanes of traffic when such movement could not be made with safety, all of which were found to have been a proximate cause of the collision with the appellee’s vehicle.

The jury exonerated James Ratterree of the one act of negligence inquired of against him, and found two other acts of Ratterree not to be the sole proximate cause of the collision, and further found the appellee, Coy Roden, free of contributory negligence. The jury found the accident was not avoidable and judgment was entered on the verdict finding damages in the total amount of $23,304.74 against the appellant, Carol Nash.

It is from this verdict and judgment that appellant has perfected her appeal to this Court.

We affirm.

I.

Appellant is before this Court on forty-one points of error, the first two, briefed together, are: the error of the trial court’s definition of proximate cause in his charge to the jury, for the reason that the definition did not properly include the phrase “unbroken by any new and independent cause;” the error of the trial court in refusing the definitions of “proximate cause” and “new and independent cause” tendered by the appellant.

We overrule these points.

We quote from appellant’s brief:

“There can be no question but that, regardless of any negligence on the part of Carol Nash in applying her brakes or attempting to pass another vehicle or whatever, the fact remains abundantly clear that her vehicle had completed a skid wholly on its own northbound portion of the roadway, and Carol Nash was in the process of trying to start her car again to regain control of it at the time when a second collision occurred, forcing her vehicle into an entirely new path onto the southbound portion of the roadway and into collision with appellees’ vehicle, the rear end of the appellant’s vehicle striking the left side of the appel-lees’ car at roughly a right angle. Not only was there no more motive force remaining from the spin of Carol Nash’s vehicle which would have carried her across the curbed median, across two traffic lanes and into contact with the Rodens’ car, but there is at least a serious question whether, under any theory of ‘causation,’ she could reasonably have anticipated the chain of events which took place, or could have reasonably anticipated injury to the appellees or those situated in the position of the appellees. If one wishes to assume, for the purpose of this problem, that there was negligence on the part of Carol Nash in applying her brakes improperly or in some other manner as submitted to the jury, there at least was evidence tending to break this causal connection, and the appellant, Carol Nash, was entitled to have the jury properly charged with a definition of ‘Proximate Cause,’ including the element of ‘new and independent cause,’ together with a proper definition of ‘new and independent cause.’ The appellant was deprived of this proper submission of the case, which under the evidence calls for a reversal. The ‘new and independent cause,’ of which your appellant feels there was some proof which entitled your appellant to a proper definition of ‘Proximate Cause’ and a proper submission to the jury, was a force itself capable of causing the damage to the appellees herein, in and of itself. Carol Nash was in essentially the same position, even though the front of her vehicle was reversed, as she would have been had her vehicle stalled through some defect, or for want of gasoline or for any number of reasons on the roadway, and it cannot be denied under the evidence that the proof presented in this case is without contradiction that the force which propelled the appellant’s vehicle across the curbed median and into contact with the appellees’ vehicle came from one source, that of James Ratter-ree.”

In this connection appellant cites the following cases: Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 (Comm. of App., 1935); Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326 (Comm. of App., 1936); Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956 (Comm. of App., 1936); Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401 (1938); Texas Motor Coaches v. Palmer, 132 Tex. 77, 121 S.W.2d 323 (1938); Jackson v. Edmondson, 136 Tex. 405, 151 S.W.2d 794 (Comm. of App., 1941).

We hold that there is no evidence of any new or intervening cause.

We do not agree with the appellant in her analysis of the facts or the law applicable here.

As described above, this accident happened in a very few seconds. There is no argument about this. We hold that the appellant’s negligence was the cause of the damage to the appellee and that such an accident or an accident of a similar nature was foreseeable under the facts and circumstances of this case. The impact of Ratterree’s vehicle with that of the appellant was a concurring cause.

The law applicable here was stated by our Supreme Court in McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941):

“We think it is the generally accepted rule as applied to torts that ‘If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.’ Restatement of the Law of Torts, Vol. 2, p. 1184, § 439. Stated in another way, ‘The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately co-operates with the independent cause the resulting injury.’ ”

See also Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506 (1951); Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162 (1957); Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

II.

Appellant’s third point of error is that of the trial court in overruling the motions for instructed verdict of appellant, Carol Nash.

We overrule this point.

Our reasons for overruling this point are stated sufficiently under points one and two, above.

III.

Appellant’s points four through nine, briefed together are as follows: There was no evidence to support the submission by the Trial Court of Special Issue No. 1; there was insufficient evidence to support the submission of Special Issue No. 1 by the Trial Court; there is no evidence to support the jury’s answer to Special Issue No. 1; there was no evidence to support the submission by the Trial Court of Special Issue No. 2; there was insufficient evidence to support the submission of Special Issue No. 2 and there is no evidence to support the jury’s answer to Special Issue No. 2.

In answer to Special Issues Nos. 1 and 2 the jury found that appellant “failed to properly apply the brakes of her vehicle” and that such failure was a proximate cause of the collision with the appellee’s vehicle.

On the occasion of the collisions involved here the highway was wet and slick, it had been raining and misting and the traffic was very heavy in the northbound lanes. The appellant, Carol Nash, had never driven on a wet highway before this date. It is undisputed, and confirmed by appellant’s own testimony, that her car did not begin to skid until after she applied the brakes. James Ratterree testified that appellant “hit her brakes and went out of control;” “hit her brakes and went into a skid,” and that he saw the brake lights come on “before” her car started to skid.

This evidence established the fact that appellant failed to properly apply her brakes and that this was the proximate cause of the collision with the appellee’s vehicle.

Under these circumstances, the jury was warranted in finding that appellant made an improper application of her brakes. Under this state of the record, the jury was the exclusive judge of the facts proved and the weight to be given the witnesses’ testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

We also hold that the answers of the jury to these Special Issues are not against the overwhelming weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust.

Appellant’s fifth and eighth points of error do not present proper assignments of error because a trial court cannot refuse to submit an issue or disregard the jury’s answer thereto merely because the evidence is factually insufficient to support the same. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

IV.

Appellant’s points of error ten through seventeen, briefed together, are as follows: There was no evidence to support the submission of Special Issue No. 3; there was no evidence to support the submission of Special Issue No. 4; there was insufficient evidence to support the submission of Special Issue No. 4; the Trial Court erred in its instruction and definition given in connection with Special Issue No. 4, for the reason that the definition as given by the Court constitutes a comment on the weight of the evidence; there is no evidence to support the jury’s answer to Special Issue No. 4; there was no evidence to support the submission by the Trial Court of Special Issue No. 5; there was insufficient evidence to support the submission of Special Issue No. 5 and there is no evidence to support the jury’s answer to Special Issue No. 5.

We overrule these points.

By their answer to Special Issue No. 3, the jury found that “immediately prior to the collision between the Nash and Rat-terree vehicles” the appellant Carol Nash “turned left in an attempt to pass a vehicle in front of her.” The jury also found in answer to Special Issue No. 4 that appellant “failed to properly turn her vehicle” and that such failure was a proximate cause of the collision with the appellee’s vehicle.

James Ratterree testified unequivocally that when appellant was about fifty feet behind a foreign car that was going slow, she started to pass the car and changed lanes by turning to her left and applied her brakes when the front of her car was about three feet into the center lane of traffic.

Appellant’s tenth point of error contends there was no evidence that the appellant turned left in an attempt to pass a vehicle in front of her. In deciding this point the court is bound to review the evidence in its most favorable light “considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding. University of Texas: Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas.L.Rev. 361, 364 (1965).

With the abovementioned guide in mind, we find that Ratterree’s testimony supports the jury’s finding that appellant was turning left in an attempt to pass a vehicle in front of her.

Appellant also contends there was no evidence to support the jury’s findings that appellee failed to properly turn her vehicle and that such failure was a proximate cause of the collision with appellee’s vehicle.

Again, under the same guide, Ratterree’s testimony supports the findings. He testified that he was also in the northbound lane of traffic about 75 feet behind appellant when she started to pass the car in front of her. His car was gaining on appellant, the highway was wet and slick, and further, he testified that it was difficult to control a car on this wet pavement. He also testified that appellant’s car did not start skidding until she turned to the left.

Under these conditions an inference can reásonably be drawn that the counterclockwise skidding of the appellant’s vehicle was due to an inexperienced driver making a turn to the left while attempting to pass another vehicle. The jury could reasonably infer that appellant’s vehicle would not have skidded over in front of Ratterree’s vehicle unless appellant failed to properly turn her vehicle. The evidence is undisputed that at the place where the appellant’s vehicle began skidding, the highway was level. Something had to make appellant’s vehicle skid in ¡front of the Ratterree vehicle and the reasonable inference is that the appellant failed to properly turn her vehicle when she started to pass the other car.

Appellant’s contention that there is no evidence which could justify the jury’s finding that appellant’s failure to properly turn heir vehicle was a proximate cause of the collision with appellee’s vehicle is also without merit. The law is well settled that causation, as any other fact, can be proved circumstantially. Grossman v. Tiner, 347 S.W.2d 627, (Tex.Civ.App. Waco 1961, writ ref’d n. r. e.); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951).

We also hold that the answers of the jury to these special issues are not against the overwhelming weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust.

Appellant also contends that the trial court’s definitions of “properly turn her ve-hide” in Special Issues Nos. 3 and 4 constituted a comment on the weight of the evidence because they assumed a fact in controversy, i. e., whether or not appellant did in fact turn her vehicle to the left.

Under the instructions of the court the jury was not to answer Special Issue No. 4 unless they found in answer to Special Issue No. 3 that appellant did in fact turn left in an attempt to pass another vehicle.

The assumption of a controverted fact in an issue is rendered harmless by the fact that, under the instructions of the court, the issue containing the assumption is to be answered only if the assumed fact is found to exist by the answer to a previous issue inquiring about its existence. American Water Co. v. Bunge, 213 S.W.2d 93 (Tex.Civ.App., Galveston 1948, writ ref’d n. r. e.).

Appellant's twelfth and sixteenth points of error do not present proper assignments of error. See Garza v. Alviar, above.

V.

Appellant» joints eighteen through twenty-six, briefed together, are as follows: There was no evidence to support the submission by the Trial Court of Special Issue No. 6; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 6; there is no evidence to support the jury’s answer to Special Issue No. 6; there was no evidence to support the submission by the Trial Court of Special Issue No. 7; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 7; the Trial Court erred in its instruction or definition given in connection with Special Issue No. 7, for the reason that the instruction as given constituted a comment on the weight of the evidence by the Court; there was no evidence to support the submission by the Trial Court of Special Issue No. 8; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 8 and there is no evidence to support the jury’s answer to Special Issue No. 8.

In answer to Special Issues 6, 7 and 8 the jury found that appellant accelerated her vehicle in an attempt to pass a vehicle in front of her; that she failed to properly accelerate her vehicle; and that such failure was a proximate cause of the collision with the appellee’s vehicle.

The conditions under which this accident occurred are described above. The jury found that appellant did attempt to pass a vehicle in front of her. Ratterree described this vehicle as a “little foreign car, who was going real alow.” Appellant’s action in passing this other vehicle was further described by Ratterree to be that she “cut out;” “started to change the lane.” The appellant testified that she did not recall whether or not she “acelerated quickly.”

Again we are presented with no evidence points. We hold that the inferences drawn from the evidence support the findings here.

Supporting these inferences is the testimony of appellee, Coy Roden, who described appellant’s vehicle as “moving fast,” “both before and after” it struck Ratterree’s car.

Appellant’s twenty-third point of error contends that the definition given in connection with Special Issue No. 7 was a comment on the weight of the evidence. This is the same contention made with reference to Special Issues Nos. 3 and 4, above, and is without merit.

Appellant’s twenty-second and twenty-fifth points do not present proper assignments of error under Garza, cited above.

VI.

Appellant’s points of error twenty-seven through thirty-three, briefed together are: The Trial Court erred in submitting Special Issue No. 9, for the reason that the wording of the Issue constitutes a comment on the weight of the evidence by the Court; there was no evidence to support the submission of Special Issue No. 9; there is insufficient evidence to support the submission by the Trial Court of Special Issue No. 9; there is no evidence to support the jury’s answer to Special Issue No. 9; there was no evidence to support the submission by the Trial Court of Special Issue No. 10; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 10; and the Trial Court erred in submitting Special Issue No. 10 unconditionally, when it should have been conditioned upon an affirmative answer to Special Issue No. 9, and the unconditional submission of Special Issue No. 10 informs the jury of the effect of their answer and constituted a comment upon the weight of the evidence by the Court.

Special Issue No. 9 asks whether “the crossing of Carol Nash’s vehicle into the southbound lanes of traffic was the result of her failure to exercise ordinary care.” Special Issue No. 10 asks whether such crossing into the southbound lanes was the proximate cause of the collision.

It is undisputed in the record that appellant’s vehicle did in fact cross over into the southbound lanes of traffic.

Appellant’s contention that Special Issues Nos. 9 and 10 constituted a comment on the weight of the evidence does not present error under the state of the record in this case. The only fact assumed in either issue is that appellant’s vehicle crossed over into the southbound lanes of traffic. There is no evidence that this was not exactly what happened. Since this fact was uncontro-verted, no error can be asserted with respect to the assumption of this fact in framing these issues.

Appellant also contends that there is no evidence that her crossing over into the southbound lanes of traffic was the result of her failure to exercise ordinary care. Appellant’s theory is that, as a matter of law, she is excused from this conduct because her vehicle “had skidded out of control, before the impact with James Ratter-ree’s car.”

This contention is without merit.

One Of the grounds of negligence alleged against appellant was that she violated Tex. Rev.Civ.Stat.Ann. art. 6701d, Sec. 62, which prohibits a person from crossing over into the leftjhand roadway of a divided highway.

As stated above, the evidence is uncon-tradicted that appellant violated Sec. 62 of Art. 6701d.

In Texas, the rule is well established that the violation of a statutory duty is negligence per se, and that once the violation is ¡established the only added finding necessary to establish a defendant’s liability is that the violation of the statutory duty was a proximate cause of the plaintiff’s injuries. University of Texas: Calvert, Special Issues Under Article 6701d, 34 Texas L. Rev. 971, 977 (1956).

! This rule is not without exceptions, and once the violation has been proved, the defendant may then go forward and prove an excuse or justification for the violation. However, the burden is upon the party seeking to justify the violation to prove up an excuse or justification. Younger Bros. v. Marino, 198 S.W.2d 109, (Tex.Civ.App. Galveston 1946, writ ref’d n. r. e.); 27 Texas L.Rev. 866 (1949).

, Appellant’s contention that she has shown ajn excuse or justification for the violation because her vehicle was “out of control” merely begs the question. Appellant must show that her vehicle was excusably or justifiably out of control. Hammer v. Dallas Transit Company, 400 S.W.2d 885, (Tex.Sup.1966).

We also hold that the answers of the jury to these- special issues are not against the overwhelming weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust.

Appellant’s points of error twenty-nine- and thirty-two present no assignment for appellate review under Garza, cited above.

VII.

Appellant’s points thirty-four through thirty-nine, briefed together are: There was no evidence to support the submission by the Trial Court of Special Issue No. 11; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 11; the Trial Court erred in giving a definition in connection with Special Issue No. 11, which constituted a comment on the weight of the evidence by the Court; there was no evidence to support the submission by the Trial Court of Special Issue No. 12; there was insufficient evidence to support the submission by the Trial Court of Special Issue No. 12; and there is no evidence to support the jury’s answer to Special Issue No. 12.

We overrule these points.

Special Issue No. 11 inquired whether appellant changed lanes at a time when such movement could not be made with safety. Special Issue No. 12 was the concomitant issue on proximate cause. Appellant contends that there was no evidence to support these issues.

The very fact that appellant applied her brakes while attempting to change lanes under the conditions stated above provided the jury with a fact from which a reasonable inference could be drawn that such a change could not be made with safety-

Appellant testified that she did not know that the Ratterree vehicle was behind her. Ratterree testified that appellant skidded in front of him when he was only 40 feet from her.

Appellant was charged with knowledge, as a matter of law, that if she changed lanes at a time when such movement could not be done with safety, her conduct would result in a collision with another vehicle. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

We also hold that the answers of the jury to these special issues are not against the overwhelming weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust.

Appellant’s thirty-sixth point is not supported with a statement, argument or authorities, consequently, must be considered as waived. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1955).

Appellant’s thirty-fifth and thirty-eighth points of error do not present proper assignments and should not be considered under Garza, cited above.

VIII.

Appellant’s fortieth point of error is that the jury’s answer to Special Issue No. 13 was against the great weight and preponderance of the evidence.

We overrule this point.

Special Issue No. 13 asked the jury if Ratterree “failed to make timely application of the brakes on his automobile.” The jury answered “no.”

We overrule this point.

The circumstantial evidence bearing on this issue was that the entire chain of events was almost instantaneous.

Based on the facts of the case outlined above we hold that this assignment is without merit.

IX.

Appellant’s forty-first point of error is that of the trial court in commenting on the weight of the evidence in Special Issues Nos. 4, 7 and 11 had the cumulative effect of informing the jury of the effects of their answers and unduly emphasized the appel-lee’s theory of the case to the prejudice of the appellant, Carol Nash.

We overrule this point.

These three issues are set out above. Special Issue No. 4 was conditionally submitted upon an affirmative answer to Special Issue No. 3. Special Issue No. 7 was conditionally submitted upon an affirmative answer to Special Issue No. 6.

It is well established that an issue which is conditionally submitted upon an affirmative finding of an act or omission does not operate to inform the jury of the effect of their answer. Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954).

Special Issue No. 11 submitted appellant s violation of Tex.Rev.Civ.Stat.Ann. art. 6701d, Sec. 62. Once the violation is established, the only other finding necessary to make the appellant liable was that such violation was a proximate cause of the ap-pellee’s injuries. Calvert, Special Issues Under Article 6701d, supra.

The judgment of the trial court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Dona BROWN et al., Appellees.
    No. 7709.
    Court of Civil Appeals of Texas. Amarillo.
    April 24, 1967.
    Rehearing Denied May 22, 1967.
    Nelson & Sherrod, Wichita Falls, for appellant, David A. Smith, Wichita Falls, of counsel.
    Peery,! Wilson & Jameson, Wichita Falls,, for appellees, Norman Whitlow, Wichita Falls, of counsel.
   CHAPMAN, Justice.

This case for death benefits under the Workman’s Compensation Act was instituted by| Dona Brown, individually and as; next friend for Laura Jo Brown and Billy Jack Brown, surviving widow and children-respectively of W. A. (Dub) Brown, deceased. [The latter lost his life between 12 00 and 1:00 o’clock p.m., on June 10, 1965, when his pickup truck collided with a Fort Worth & Denver train in Harold, Texas. The deceased was at the time proceeding in a northerly direction.

In response to Special Issue No. 1 the jury found that Brown’s fatal injuries were ■sustained while he was acting within the ■course of his employment for Oilfield Employees, Inc. Judgment on the verdict was rendered for plaintiffs. Appeal is perfected to our court in “Point One” upon the •contention that there was no evidence to support the verdict and judgment based thereon that W. A. Brown was, at the time •of his death, acting within the course of his •employment. In the only other point, the •question is raised that requires us, if we reach it, to pass upon the overwhelming preponderance question.

Oilfield Employees, Inc. is a company •owned by H. C. Leach, Warren Pruitt, and perhaps others, and which furnishes mechanical labor and equipment to other companies on a contract basis. Dub Brown was not a member of any particular operating crew but worked principally as an individual mechanic for said company. As an oilfield mechanic he worked both in the ■company shop in Vernon and in the oilfields to maintain equipment. He was on 24-hour •call, and worked by the hour at the rate of $1.75 per hour with time-and-a-half for overtime, owned his own pickup, furnished bis own fuel and upkeep for it, but was paid $75.00 per month by the company for its use regardless of how many miles he drove it. He was free to use it for any purpose unconnected with his employment.

In emergencies in the field when the •company would take the mechanics’ food, .and when one would eat while two worked and they ate hurriedly, the company did not dock them for their time in eating. Otherwise, when the employees were in the field and took off for lunch to either go to a nearby store for food, or home, or to eat lunch they brought with them, they were not paid for that period and were on their own time. The company paid for road time to and from work but not in going to eat.

“Q. Do you allow road time for a mechanic when he goes to lunch?
“A. Well, we don’t allow road time for any of them.
⅝ ⅝ ⅜ ‡ ⅜ ⅜
“Q. All right. Now, lunch time is not road time, is it ?
“A. Not during the lunch time, no.
“Q. Now, if this man had taken off to come to Vernon, the end of his work out there, to go home to go to sleep, would he be paid for the time he is traveling on the road ?
“A. The time that he is traveling on the road, he would be paid, to and from the job.
“Q. To and from the job?
“A. Yeah.
“Q. But on this occasion, if he was going to lunch, what about lunch time ?
“A. No, if he was going to lunch he wouldn’t be paid until he got back on the job.”

The record shows that Hoyt Lee was working on a rig on Miller Brothers Lease on June 9, 1965. He knocked the bearings out of some machinery and had Dub come out to the field to check it. They tore it down, took it to town, and he and Dub worked on it until 4:00 or 5:00 o’clock the next morning. Hoyt Lee took the repaired machinery out to the field early the next morning and after a few hours sleep, Dub checked back at work by punching the time clock at the office at 9:48. He thereafter left and drove out to the Miller Brothers Lease to check on the machinery they had repaired the night before, arriving there between 10:00 and 10:30 o’clock a. m. He did some more work on the unit and left five or ten minutes after 12:00. The pan was still leaking oil and Dub told Lee as he left to keep a close watch on it, and if anything happened he could reach him by radio, a two-way radio unit the company furnished for the pickup and which he kept on at all times when he traveled from the shop to the field and back. The manager of the company, Mr. Leach, testified he did not expect any of them to keep their two-way radio on at the lunch hour, though it appears from the record that at times Dub Brown did so.

Before leaving Vernon on the morning of the fatal day Dub had coffee in a cafe with a good friend, Paul Chambers, of Electra. Their families are good friends, had eaten in each others homes, and Chambers invited Dub to have lunch with him that day since he was going to be at Grayback to check a rig. Dub told him if he did not have any troubles he would try to join him at his home for lunch.

Another person shown in the record to have talked with Brown that morning was Arlen White, an oil well pumper on the Miller Lease. He was at the time about 2½ miles north of Grayback at the “Dog House.” After first talking to him Dub went and did some more work on the machinery he had worked on the night before then came back by the “Dog House” where White was. White said it could have been a little after 12:00, “ * * * I couldn’t say what, but it was right at 12:00.” Dub told him he was going to Electra “ * * * to eat a steak dinner with Paul Chambers.” White also remembered Dub saying there was something he was going to do with respect to work but he did not remember if it was going to be before lunch or after lunch.

On the day in question Orville Talley was also working for Leach. He and the two members of his crew were working on the City Service Lease. They took off for lunch and went to the shade of a warehouse building at Grayback to eat their lunch. Dub Brown came by at about 12:20 and serviced his pickup with butane owned by the company. Talley told him the first chance he had he ought to catch up on his rest. His reply was, “Okay * * * I'll see you.” As he left about 12:35 he had on both his music playing radio and his two-way radio. Talley did not see which road Dub took but there were two roads approximately the same distance to Electra — one by Harold and one called the “Lower Road.” Neither of them would have been the direct road to Vernon, the most direct route to his shop and home being via Waggoner Ranch Zacaweista Headquarters and onto Highways 183 and 283, a paved road from Seymour to Vernon. Dub’s wife testified that is the road she would have taken going from there to Vernon.

There was no set time as to how long Brown could take off for lunch. He could take off as long as he wanted to and if he was working where the time clock was not available he would later go by the office and write in the time.

As wé view the problem before us it is to interpret Article 8309, Section 1, and the 1957 Amendment thereto, Section lb of Vernon’s Texas Civil Statutes, as those statutes apply to the facts of our case and as they have been construed by the Supreme Court of Texas.

“Definitions” under Section 1 of Article 8309 provides: “The term ‘injury sustained in the course of employment,’ ” * * * “shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or. profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

Sectioii lb of Section 1 of Article 8309, the 1957 Amendment above referred to, has two parts. There is no controversy here concerning the first part of Section lb of Article 8309. The second part deals with what has been referred to as the “dual purpose” rule. Thereunder, and as applicable here, injuries occurring during travel for the dual purpose of furthering the affairs or business of the employer and the employee’s personal or private affairs shall not be deemed in the course of employment and compensable, “unless the [Dub Brown’s] trip * * * [to Harold] would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The Supreme Court of Texas has held that by the Section lb 1957 Amendment to Section 1 of Article 8309 “ * * * the Legislature intended thereby to circumscribe the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition found in Section 1.” Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (Tex.1963); Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745 (Tex.1965).

The Supreme Court of Texas has also held that the direction to proceed from one place to another place of which Section lb speaks, can be an implied direction. Jecker v. Western Alliance Insurance Company, 369 S.W.2d 776 (Tex.1963). “But by the very language of the section the implied direction to the employee must be ‘in his employment,’ and the travel thus must be in the furtherance of the business of the employer.” Janak v. Texas Employers’ Insurance Association, supra. There is not any probative evidence in this record that would justify an implied direction to go by Harold or to Electra or that doing so furthered the business of the employer.

As heretofore stated, both the no evidence and overwhelming preponderance questions are raised by appellant’s brief. In considering the former: “We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result.” Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). See also Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957); Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798 (1954); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945).

We thus have the narrow question as to whether Brown would have traveled via Harold on the occasion had there been no personal or private affairs of his to be furthered thereby and if said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip. Article 8309, Section lb.

It is without question in the record that when Brown left Grayback at 12:45 p. m. he deviated from the shortest, best and most practical road to his home and the company’s shop at Vernon when he went by Harold.

Proof shows it was the custom of Brown to have his two-way radio on as he traveled. The last person to talk to him before his death, Orville Talley, was listening to his own two-way radio from 12:35 p. m. until Brown’s death and he heard no message to or from Brown. Hoyt Lee, in charge of the machinery Brown and he had worked on the night before, made no call to him after he left that morning.

Appellees also proved that Leach, one of Brown’s employers, had a lease between Grayback and Harold but the record is silent as to any work or inspection of any machinery on said lease by Brown after he left Grayback on the day in question.

Appellees also proved that Leach had done some work for Brown’s father-in-law, Melvin Pate, prior to June 10, 1965, on which the work orders had not been signed and that sometimes Brown secured Pate’s signatures on such work orders. This was obviously for the purpose of attempting to prove Brown was on the way to Pate’s home at Harold at the time he was killed in order to get such work orders signed. However, the record is silent as to Brown’s having any such work orders in his possession at said time, Mr. Pate could not recall if Leach’s company had done any work for him within the last month, and Mr. Pate testified Leach sometimes sent such work orders to him by mail.

There was also proof that there is a garage in Harold and an inference was sought to be made that Brown may have purchased supplies in behalf of the company there at some time and went by Harold for such a purchase at the garage that day. Mr. Leach admitted it was possible Dub had made a purchase there at some time but stated that he knew of none. He testified he could find out by checking his records but he was never asked to do so.

Mrs. Brown testified she had cooked lunch for Dub and called the office dispatcher at about 11:30 and told him it was on the table for him but she had to go to Electra to a birthday party and take the children. There is no evidence that Mr. Dally, the dispatcher, ever contacted Dub to give him that information or that he would have gone to Vernon to eat had Dally called him.

There is evidence that the deceased was given his time by the company for work up to the time of his death, but a careful reading of Mr. Leach’s testimony shows it was not because he considered Dub was in the course of his employment at the time but more of a courtesy or gratuity in view of the fact that he had been killed after having worked most of the night before. When asked if Dub was on his (Dub’s) time if he had taken off from his work there at the Miller Lease and was going to Electra for lunch, Mr. Leach answered, “Definitely.”

Even when we consider only that evidence, if any, which, viewed in its most favorable light supports the verdict and disregard all evidence which would lead to a contrary result, there is still only conjecture and surmise that Dub was at the time of his death in the course of his employment. It is unrealistic to assume that he would go by Harold, a longer distance and less practical road, if he was at the time he was killed in Harold on his way to Vernon to rest, to eat, or to go back to work at the shop. The record is simply without probative evidence that he met either condition of the two-pronged test of Section lb of Article 8309. Accordingly, we hold the motion for directed verdict made by appellant at the close of the testimony should have been granted.

If the Supreme Court of Texas should disagree' with our understanding of the facts as applied to that court’s construction of Section lb of Article 8309 announced in the cáses we have cited construing it, then we say we would sustain the “insufficient evidence” point raised in the record. To do so1:

“ * * * becomes the duty of this court io weigh and consider that which supports the verdict and that which does not, and to set aside the judgment and remand the case if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it. In re King’s Estate (King v. King), 150 Tex. 662, 244 S.W.2d 660; Purvis v. Morehead, Tex.Civ.App., 304 S.W.2d 221; Chantly v. Chrystal, Tex.Civ.App., 274 S.W.2d 765.” Prewitt v. Watson, 317 S.W.2d 954, (Tex.Civ.App.-Amarillo, 1958), Approved Per Curiam, Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815.

Dub Brown told Paul Chambers in the cafe on the morning of the day he was killed that he would try to have lunch with him that day if he did not have any troubles. He did not have any troubles before his death to prevent his luncheon engagement so far as this record shows. With respect to Dub’s statement concerning his plans for lunch Arlen White was asked:

“Q. Did he say where he was going?
“A. He was going in to eat a steak dinner with Paul Chambers.”

This is actually the only probative evidence in the record justifying his trip by Harold. Therefore, when we consider the evidence which supports the verdict and that which does not, we would be compelled to conclude, if we reached that point, that the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it.

The rule in the overwhelming preponderance point is stated and the evidence discussed under the authority of Chief Justice Calvert’s statement in 38 Texas Law Review 361 (1960) “No Evidence” and “Insufficient Evidence” Points of Error in the first paragraph on Page 371, as follows :

“In order to avoid having the case returned to it for decision of an ‘insufficient evidence’ point if the Supreme Court should disagree with it on its ‘no evidence’ holding, a Court of Civil Appeals may, if it wishes, indicate that the ‘insufficient evidence’ point would be sustained if reached.”

Therefore, we assume if the Supreme Court of Texas does not agree with our holding heretofore made on the “no evidence” point then it will refer the case back to the trial court just as we would do if it were referred back to us.

The judgment of the trial court is reversed and rendered.

      . Beginning with the second word of the third line of the second numbered “(4)” paragraph of Article 8309, Section 1.

      . Janak v. Texas Employers’ Insurance Association, 381 S.W.2d 176 (Tex.1964) Syl [2].


author: PARKER, Justice.

text:
    NATIONAL WESTERN LIFE INSURANCE COMPANY, Appellant, v. Wm. M. ACREMAN, d/b/a Acreman Construction Company, Appellee.
    No. 6888.
    Court of Civil Appeals of Texas. Beaumont.
    March 30, 1967.

      Darden, Fowler & Creighton, Conroe, Phipps, Smith & Alexander, Galveston, for appellant.
    W. J. Benardino, Conroe, for appellee.
   PARKER, Justice.

Wm. M. Acreman sued Henry S. Fuller, II, National Western Life Insurance Company and Gerald J. Creighton, Jr., as substitute trustee, for the use and benefit of said insurance company, to recover from Fuller the sum of $2,828.80 and to establish against all defendants an M & M lien as a first and superior lien upon 160 acres to a vendor’s lien and deed of trust lien owned and held by the insurance company. Trial was to the court which entered judgment that plaintiff have and recover of Fuller the sum of $2,828.80 plus interest at the rate of 6% per annum from May 22, 1964 until paid, adjudging that such sum is secured by first, superior and valid and subsisting mechanic’s and materialman’s lien as duly established and protected by virtue of and in compliance with Art. 16, § 37 of the Constitution of the State of Texas Vernon’s Ann.St. and Art. 5452 et seq., of V.A.C.S., by virtue of a contract between plaintiff and Fuller dated February 24, 1964. The court foreclosed such lien on all of the 160 acres situated in Montgomery County. The judgment provided that an order of sale should issue. The court further found that all of the defendants were asserting some character of claim in the above described real property and improvements which said claim to and interest in the above described 160 acres is in all things subordinate and inferior to plaintiff’s valid and subsisting mechanic’s and materialman’s lien upon and against the said real estate premises.

The sole appellant is National Western Life Insurance Company, which has five points of error as follows:

1.The trial court erred in holding that Appellee’s mechanic’s and material-man’s lien was a prior lien to the vendor’s lien and the deed of trust lien of Appellee National Western Life Insurance Company.
2. The court erred in holding that Appellee had perfected a statutory mechanic’s and materialman’s lien pursuant to Article 5452 of Vernon’s Annotated Civil Statutes, it being neither alleged, nor proved, that two copies of the affidavit claiming a lien were sent to Henry S. Fuller II, the owner of the land as of the 3rd day of April, 1964. Said notice is required by Article 5453 of Vernon’s Annotated Civil Statutes.
3. The court erred in holding that Appellee perfected his lien because all of the proof shows his contract was with Statewide Properties, Inc. and not Appellant Fuller.
4. The court erred in holding that Appellee Acreman has a valid constitutional lien pursuant to Article 16, Section 37 of the Texas Constitution, there being no evidence or pleadings to support a finding that Appellee Acreman had performed labor upon or furnished materials to make or repair any building or article.
5. The court erred in holding that the entire 60 [sic — 160] acres of land was subject to the mechanic’s and ma-terialman’s lien of Appellee Acreman.

All of such points of error will be considered together.

On April 3, 1964 Wallace T. Sisk was the owner of 160 acres of land, more or less, out of and a part of the Daniel F. Whildent Survey situated in Montgomery County consisting of the south one-half of the north one-half of said survey. On that day Sisk conveyed such property to Henry S. Fuller, II, for $10 cash,

“and the further consideration of a sum of money, cash, this date to me in hand paid by National Western Life Insurance Company, a corporation, at the special instance and request of the said Grantee, the receipt of which is also hereby acknowledged and confessed, which sum of money so advanced at his special instance and request is included in and evidenced by a certain Promissory Note, which Grantee has this day executed and delivered to the said National Western Life Insurance Company, said Promissory Note being of even date herewith for the principal sum of Sixty-five Thousand and No/100 ($65,-000.00) Dollars, bearing interest thereon from date at the rate therein provided, principal and interest payable in monthly installments as therein provided, said Note containing the usual and customary accelerating maturity and Ten (10 %) Percent attorney’s fee clauses, said Note being secured by a Vendor’s Lien herein retained in favor of the said National Western Life Insurance Company, and further secured by Deed of Trust of even date herewith from said Grantee to R. F. Varnado, Trustee, on the hereinafter described property, * *

This deed also provided:

“But it is expressly agreed and stipulated that the Vendor’s Lien and Superior Title is retained against the above described property, premises and improvements, in favor of the said National Western Life Insurance Company, a corporation, until the above described note, and all interest thereon is fully paid according to its face and tenor, effect and reading, when this Deed shall become absolute.”

On the same day Fuller executed and delivered to National Western Life Insurance Company the Note for $65,000 and executed a deed of trust to R. F. Varnado, trustee, for the use and benefit of the insurance company, to secure the full payment of such promissory note. The deed of trust and the deed were duly filed for record on April 4, 1964, with the clerk of the county court of Montgomery County and duly recorded. On April 3, 1964, Fuller and the insurance company agreed that $1,500 of the $65,000 would be held as an escrow fund by the insurance company until the company received evidence satisfactory to itself that a roadway would be satisfactorily completed within 60 days from date and, if completed, the $1,500' would |be paid to the borrower, Fuller. The roadway was to be a hard or gravel surface roadway 60 feet wide extending from the western boundary line of the 160 acres to its east boundary line, such roadway having as its northern edge the southern boundary line of certain lots as shown by a survey of the property made by J. C. Neves in January, 1964.

Fulleir failed to make payments according to the terms of. the purchase money note. R. F. Varnado resigned as trustee. The insurance company appointed Gerald J. Creighton, Jr., of Montgomery County as substitute trustee to act under and by virtue of ^aid deed of trust. The insurance company as the holder of the indebtedness and liens requested the substitute trustee to sell said property in accordance with the provisions of said deed of trust. After having given public notice as provided by law, thq substitute trustee on September 1, 1964 sold said property at public auction at the courthouse door of Montgomery County iwithin the hours provided by law to National Western Life Insurance Company for $42,000. Deed therefor was executed the same day. No attack is made on the validity of the sale of such property.

During the trial, it was stipulated in open court: I

“Plaintiff admits that plaintiff was aware, of the trustee’s sale held by substitute trustee, Gerald J. Creighton, Jr., by which the defendant National Western Life Insurance Company acquired title to thé land described in the plaintiff’s petition.”

The appellee, Acreman, brought this suit against National Western Life Insurance Company, Henry S. Fuller II, and Gerald J. Creighton, Jr., substitute trustee, for the purpose of establishing the priority of a mechanic’s and materialman’s lien based on a contract executed by Acreman and Fuller to cut and burn underbrush and build a road 60 feet wide and 4352.7 feet long at a price of 65 cents a foot on job called “Pine Acres Estates”. This contract was dated February 24, 1964. On the face of this contract it was between Statewide Properties by Henry S. Fuller, II and Wm. M. Acreman, d/b/a Wm. M. Acreman Construction Company. Fuller was doing business as Statewide Properties according to recitations over his signature in a contract of sale with E. A. Bigbee dated March 25, 1964. We hold the contract of February 24, 1964 was between appellee and Fuller as found by the trial court. Appellant’s third point of error is overruled.

The work on the road was commenced by plaintiff Acreman on March 26, 1964 and completed on May 22, 1964. There is no evidence as to the location of said road except it was on the 160 acres. Plaintiff furnished the necessary labor and materials required to build the road. On July 2, 1964 plaintiff filed a statutory affidavit with a copy of his contract with Fuller and met all other statutory requirements of notice to Fuller according to an interlocutory judgment by default obtained by plaintiff against Fuller. On August 7, 1964 a notice of trustee sale under the deed of trust was posted as part of the procedure in foreclosing the deed of trust lien. In such notice Gerald J. Creighton, Jr., was designated substitute trustee. The instant suit was filed on August 27, 1964 together with a Lis Pendens Notice as to the property in question.

The controlling question involved in this case is whether the mechanic’s and materialman’s lien is superior to the vendor’s lien and deed of trust lien. Art. 16, § 37 of the Texas Constitution provides that mechanics, contractors and material-men of every class shall have a lien on the buildings and articles made or- repaired by them for the value of their labor done thereon or materials furnished therefor. Work done by Acreman was not on a building and he did not make or repair a building. No constitutional lien is involved in this suit.

Art. 5452, V.A.T.S., does provide for the fixing of a mechanic’s, contractor’s and materialman’s lien for improvements made upon land, including clearing and grubbing. Appellant asserts that the trial court erred in holding that appellee’s mechanic’s and materialman’s lien was a prior lien to the vendor’s lien and the deed of trust lien of appellee National Western Life Insurance Company. The lien created by the deed of trust is impressed by the character of the indebtedness for which it was given to secure. This is the general rule in this state, as well as elsewhere. The deed of trust was given to secure the payment of purchase money delivered to Sisk and the deed of trust lien has the status of a purchase money lien, as well as a deed of trust. The insurance company was the purchaser at the sale regularly made in the exercise of a power of sale authorized by the duly recorded mortgage and deed of trust, taking the title of Fuller divested of all incumbrances made subsequent to the execution, delivery and record of such mortgage. Hampshire v. Greeves, 104 Tex. 620, 625, 627, 143 S.W. 147 (1912). By the sale under the power in the mortgage, subsequent lien holders were foreclosed as effectively as a foreclosure by judgment in a suit to which all claimants were parties and in pursuance to such judgment a sale had been regularly made. Thompson v. Litwood Oil & Supply Co., 287 S.W. 279 (Tex.Civ.App.1926, n. w. h.) and authoritative decisions cited on pp. 280 and 281. This would not apply to a subsequent lien if authorized and consented to by the insurance company.

On February 24, 1964 Fuller owned no right, title or interest in the 160 acres of land. Wallace Sisk was the owner. The trial court held and appellee asserts the court properly held that upon completion of the road and the filing of appellee’s affidavit and contract, the mechanic’s and materialman’s lien related back to the date of the contract as the time of its inception. In McConnell v. Mortgage Investment Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957), the Supreme Court analyzed the holding in Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765, pointing out:

“That the holding in the Oriental Hotel Co. case is bottomed squarely upon the circumstance that the building has been projected and a contract for its construction executed by the owner and a contractor is made clear by Judge Brown’s later opinion in the Texas Briquette case (Sullivan & Co. v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307.)” (Emphasis ours.)

In the McConnell case, supra, it is emphasized that as a basis for the mechanic’s and materialman’s lien it must be a contract entered into by the owner with the contractor and the Supreme Court held that the word “inception” only related back to the date of a valid contract between the owner and the contractor. The inception of the mechanic’s and materialman’s lien claimed in this case by Acreman was subject to the creation of the vendor’s lien and deed of trust lien by virtue of the deed and deed of trust dated April 3, 1964 insofar as the insurance company is concerned, for Fuller became the owner of the land subject to such liens.

An interlocutory judgment by default was taken by Acreman against Fuller for $2,828.80, plus interest and purporting to establish an M & M lien on the 160 acres. This interlocutory judgment was incorporated in the final judgment. The recitations contained in the interlocutory judgment and the final judgment that due notice was given by Acreman to Fuller as required by Art. 5453, V.A.T.S., we consider as having been proved as against Fuller, who has not appealed. There is no evidence in this record binding on appellant that due notice was given by Acreman to Fuller as so required. Appellant’s point of error No. 2 is sustained.

This court holds that the vendor’s lien and the deed of trust lien of National Western Life Insurance Company is superior to appellee’s M & M lien. Newman v. Coker, 310 S.W.2d 354 (Tex.Civ.App. 1958, n. w. h.); Harveson v. Youngblood, 38 S.W.2d 781, 783 (Tex.Com.App.1931, opin. approved by S.Ct.). However, on April 3, 1964 at the same time the deed from Sisk to Fuller was executed and the deed of! trust from Fuller to Varnado, trustee, for the use and benefit of the insurance company, was executed, the agreement between Fuller and the insurance company as to a road to be constructed on the property was executed. The insurance company retained and never paid to Fuller the $1,500 it held in escrow until the insurance company received evidence satisfactory to itself that the roadway had been satisfactorily completed within 60 days from date. A roadway was completed on the 160 acres within 60 days after April 3, 1964, but there is no evidence that it was located according to the agreement between Füller and the insurance company. It was an improvement to the land.

In the deed of trust under section (d), paragraph 5, it is provided:

“(d) FUTURE LIENS: GRANTOR agrees not to allow to be fixed, or enter into any contract whereby there may be fixed, on the above described property or any part thereof, without the written consent of HOLDER, any Mechanic’s Lien or other lien of any character whatsoever.”

Construing all instruments executed on April 3, 1964, the insurance company consented to Fuller thereafter entering into an M & M lien for the construction of a road in the location agreed upon but limiting the insurance company’s liability to $1,500. 1

The 160 acres was in the country. The M & M lien of Acreman’s can only he enforced under Art. 5452, V.A.T.S., to extend to and include the 50 acres upon which the roadway is situated. If established as to the insurance company, the lien is limited to $1,500. Appellant’s point of error No. 5 is sustained.

The validity of any valid mechanic’s and materialman’s lien against Fuller and the land is dependent upon the insurance company. The establishment of a valid mechanic’s and materialman’s lien is an indivisible matter.

That part of the judgment of the trial court providing that Acreman recover of and from Fuller the sum of $2,828.80 plus interest is affirmed, but otherwise, this cause is reversed and remanded.


author: WERLEIN, Justice.

text:
    ANGELINA CASUALTY COMPANY, Appellant, v. J. W. BENNETT, Appellee.
    No. 15061.
    Court of Civil Appeals of Texas. Houston.
    May 4, 1967.
    Rehearing Denied May 25, 1967.

      Andrews, Kurth, Campbell & Jones, George H. Hagle, Houston, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely, Houston, Frank Abraham, W. James Kronzer, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This is a workmen’s compensation case which Was regularly called for trial on October 4,: 1966. Following the selection and impaneling of the jury and during a recess of court, the parties through their respective attorneys announced to the court that they had agreed upon a compromise settlement agreement subject to the approval of the court. Thereupon the court proceeded to hear Evidence with respect to the terms of the proposed compromise settlement agreement. Under such agreement appellee was to be paid a lump sum of $9,500.00 to cover all past and future weekly compensation benefits, including past medical, hospital and surgical expenses. It was further agreed to leave the future medical, hospital and surgical expenses open, and in connection therewith appellant agreed to pay any medical bill certified to by a doctor to be reasonable and necessary as the result of the accident in question, and specifically agreed upon acceptance of any certification made by Dr. Morton Blum as to the reasonableness and necessity of medical bills. We here quote the following pertinent evidence adduced at the hearing:

“THE; COURT: Dr. Blum has told Mr. Bennett that he needs a fusion operation, and I want Mr. Bennett to know right now whether you intend to bring any medical testimony that is fusion is not necessary as a result of this accident.
“MR. HAGLE: No. No, your Honor.
“THE COURT: All right, you are going to accept Dr. Blum’s word ?
“MR. HAGLE: We will accept Dr. Blum’s word.
“THE COURT: As to what is necessary as a result of the accident made the basis of this suit.
“MR. HAGLE: Yes, sir.
“MR. ABRAHAM: We agree, your Honor.
“THE COURT: No question about that.
Mr. Bennett, do you understand that?
“THE WITNESS: Yes, sir, I understand.
“THE COURT: You understand what Dr. Blum says you need because of this accident you are going to have and the insurance company is going to pay for it?”

After concluding the hearing the trial court stated: “I will approve the settlement, and please see that Mr. Bennett has his money no later than Monday of next week.” The court then entered on its docket sheet: “Oct. 5, 1966 — Settlement approved. Agreed judgment for Pf. for $9,500.00 plus future medical including $2,850.00 attys fee.” There is no question but that appellant, through its counsel, Mr. Hagle, represented that the compromise settlement agreement would he honored by it.

Thereafter, on October 14, 1966, there came on to be heard appellee’s oral motion for entry of a formal written judgment in accordance with the compromise settlement agreement made in open court on October 5, 1966. Appellant’s request to make objections and exceptions to the entry of the judgment was granted. Thereupon appellant made it known to the court that it did not agree to the entry of such judgment upon the ground that it did not approve “the inclusion in the judgment of the provisions whereby the Defendant is to be bound by the certificates of a single doctor concerning the medical needs in the future of the Plaintiff.” At such hearing appellant further objected to the inclusion in the judgment of the phrase “rehabilitation of Plaintiff” in connection with the payment of all necessary medical and hospital expenses for the care, cure and treatment of plaintiff in the future as a result of his injuries. The court thereupon eliminated the word “rehabilitation” from the draft of the judgment, and entered judgment in accordance with the previous compromise settlement agreement over appellant’s objection that it was beyond the court’s power to approve a compromise settlement concerning future medical, hospital and surgical treatment.

Appellant asserts that the court erred in entering a judgment which awarded appel-lee benefits covering future medical expenses since such adjudication was beyond the power conferred upon the trial court, and also erred in entering an agreed judgment when the court was aware that appellant did not agree to the entry of the judgment and objected thereto before it was entered. Appellant further contends that the court erred in entering the judgment because it was indefinite and uncertain and did not sufficiently define the rights and obligations of the parties so that the judgment might be enforced by summary process without the ascertainment of additional facts. The judgment entered by the court contains the following provision:

“ * * * the Defendant shall pay all reasonable and necessary medical expenses, including hospitalization, surgery, nursing and medicines necessary for the care, cure and treatment of the Plaintiff in the future from and for his injuries made the basis of this suit, it being understood as part of the settlement that the Defendant will not contest whether or not said expenses are necessary if certified to by Dr. Morton Blum of Houston, Texas.”

We do not agree that there is anything indefinite or uncertain about the compromise settlement agreement entered into and the formal entry of judgment in accordance therewith. Such agreement not only specified definitely that appellant would pay all reasonable and necessary medical expenses for the care, cure and treatment of appellee, but also specified that it would accept a certification by Dr. Blum as to the necessity of the medical bills that might be incurred.

Appellant contends that under Section 5 of Article 8307, Vernon’s Annotated Texas Statutes, as amended in 1957, neither an award of the Board nor the judgment of the court can decide the liability of an insurer for future medical services. Appellant relies upon the case of Bituminous Casualty Company v. Whitaker, 356 S.W.2d 835 Tex.Civ.App., n.w.h., in which it was said: “We sustain appellant’s points 4 and 5. The judgment includes a recovery of $750.00 for future medical expenses. Section 5 of Article 8307, as amended in 1957, prohibits the rendition of a judgment for future medical expenses in a workmen’s compensation case.” That case involved in part a review of a final judgment after trial which included an amount for future medical expenses. It did not involve a compromise settlement agreement approved by the court.

The case of Pearce v. Texas Employers Insurance Association, Tex.Civ. App., 403 S.W.2d 493, writ ref., n. r. e., distinguishes between a compromise settlement agreement with respect to future medical expenses, and a final award of the Industrial Accident Board or a judgment after trial. Under Sections 5 and 12 of Art. 8307, V.A.T.S., an approval or a rejection of a compromise settlement agreement by the Industrial Accident Board or by a district court on an appeal from an award of the Board, is neither an award of compensation nor a denial thereof. The law is well established that a compromise settlement agreement after approval by the Industrial Accident Board, may only be set aside in an independent proceeding alleging fraud or other grounds which would entitle the party to a rescission or cancellation as at common law. In Pearce v. Texas Employers Insurance Association, supra, appellant argued that the language of Section 12 of Art. 8307, which authorizes a compromise settlement, was subordinate to the limitations of Article 8307, Section 5, because of the words “notwithstanding any other provision of this law, as amended, * * * ”, and that since Section 12 was not amended to include authority to compromise claims for future medical expenses, the Legislature must have intended that such claims could not be compromised. The Court said:

“Wie are unable to follow appellant’s reasoning. As we read them, these two sections are not inconsistent, but on the contráry relate to entirely different aspects of the Workmen’s Compensation Act and are in harmony with each other. They endeavor to accomplish entirely separate and distinct ends. Section 12 deals with compromise settlements, which are agreed upon to avoid adjudication by final award, while Section 5 deals wholly with final rulings and decisions, whether they be the first award or successive awards.”

The Supreme Court of Texas on March 8, 1967, i in refusing a writ, n. r. e., in the Pearce case, Tex., 412 S.W.2d 647, held in a per curiam opinion on motion for rehearing of application for writ of error:

“The Court of Civil Appeals in deciding the question adversely to petitioner, has held that Section 5, supra, by its terms is restricted to awards of the Board and judgments of a court of law, and that the enactment of Section 5, supra, did not have the effect of repealing Article 8307, Sec. 12, supra; thus, holding that Sec. 5, supra,; refers only to awards and judgments and has no application to a compromise settlement approved by the Board, as provided in Article 8307, Sec. 12, supra. We have concluded that the Court of Civil Appeals, in so holding has correctly interpreted the statutes involved herein. Therefore, we approve its holding.”

In Esco v. Argonaut Insurance Company, 405 S.W.2d 860, Tex.Civ.App.1966, writ ref., n. r. e., the Court held:

“In the present case the compromise settlement agreement was made while pending in court and was approved by the court. We hold that there was a valid accord, which superseded the original claim, and was in the fullest sense a settlement, subject only to judicial cancellation for fraud or other equitable grounds. The compromise settlement agreement, when approved by the court after hearing evidence, was binding upon both plaintiff and defendant.”

It is true, as asserted by appellant, that the Industrial Accident Board cannot properly approve a compromise settlement agreement when it has notice prior to approving the same that one of the parties has withdrawn his consent. Smith v. Petroleum Casualty Co., 72 S.W.2d 640, Tex.Civ.App. 1934, writ ref.; Petroleum Casualty Co. v. Lewis, 63 S.W.2d 1066, Tex.Civ.App. 1933, writ ref. The same rule would apply where the consent of one of the parties is withdrawn prior to the approval by the court of a compromise settlement agreement, since on appeal of a claim from the Industrial Accident Board, the duties of the court are identical with those of the Board. Texas Employers Ins. Ass’n v. Miller, 1941, 137 Tex. 449, 154 S.W.2d 450.

In the cases relied upon by appellant the consent of one of the parties was withdrawn prior to the approval of the proposed compromise settlement agreement. This is not true in the instant case. In this suit the compromise settlement agreement was complete in all of its details. Such agreement was made by the parties in open court and approved by the court at the time it was made after the court had heard all of the terms and details thereof. The agreement did not contemplate any further action by the court. It was entered into and approved on Wednesday, October 5, 1966 and at such time appellant’s counsel stated that appellee would have his money “ * * * by Monday at the latest and maybe Friday.” The agreement was transcribed by the court reporter and is contained in the statement of facts.

The trial court was meticulous in ascertaining the terms of the agreement and in determining that both parties thereto fully understood the same and consented thereto before approving the same. The court not only orally pronounced its approval at the conclusion of the hearing, but also entered at the time its approval on the docket sheet of the court, as hereinabove stated. The formal reduction of the agreement thereafter in a written judgment neither added to nor detracted from the compromise settlement agreement that had been entered into by the parties and unqualifiedly approved by the court prior to appellant’s attempt to withdraw its consent. Appellant’s withdrawal of consent after the terms of the compromise settlement agreement had been made known to the court and expressly approved, did not affect the validity of such agreement. The established rule relating to “consent judgments” in general, as enunciated in Burnaman v. Heaton, 1951, 150 Tex. 333, 240 S.W.2d 288, has no application to compromise settlement agreements. Esco v. Argonaut Ins. Co., supra.

In our opinion the approval of the compromise settlement does not constitute a judgment in the ordinary sense of the word and it is not appealable. When once entered into it supersedes the original claim, and can only be set aside in an independent action based upon fraud or other equitable grounds. Pacific Employers Ins. Co. v. Brannon, 1951, 150 Tex. 441, 242 S.W.2d 185; Esco v. Argonaut Ins. Co., supra; Pearce v. Texas Employers Insurance Ass’n, supra; Cordova v. Associated Employers Lloyds, 250 S.W.2d 945, Tex.Civ.App.1952, writ ref.

Since the approval of the compromise settlement agreement does not constitute an appealable judgment, this Court has no jurisdiction over this appeal.

Appeal dismissed, w. o. j.

COLEMAN, J., not sitting.